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59 L.Ed.2d 519
99 S.Ct. 1304
440 U.S. 472
NATIONAL MUFFLER DEALERS ASSOCIATION, INC., Petitioner,v.UNITED STATES.
No. 77-1172.
Argued Nov. 27, 1978.
Decided March 20, 1979.
Syllabus
Petitioner is a trade organization for muffler dealers but it has confined its membership to dealers franchised by Midas International Corporation and its activities to Midas' muffler business. In a suit seeking a federal income tax refund, petitioner claimed the "business league" exemption provided by § 501(c)(6) of the Internal Revenue Code of 1954. Treas.Reg. § 1.501(c)(6)-1 states that a business league is "an organization of the same general class as a chamber of commerce or board of trade," and that a tax exempt business league's activities "should be directed to the improvement of business conditions of one or more lines of business." The District Court held that Midas muffler franchisees do not constitute a "line of business" and that petitioner was not a "business league" within the meaning of § 501(c)(6) and thus was not entitled to the claimed refund. The Court of Appeals affirmed, applying the maxim noscitur a sociis and holding that petitioner's purpose was too narrow to satisfy the "line of business" test of the Regulation. Held: Petitioner is not entitled to the tax exemption as a "business league" within the meaning of § 501(c)(6). Pp. 1306-1313.
2nd Cir., 565 F.2d 845, affirmed.
Myron P. Gordon, New York City, for petitioner.
Stuart A. Smith, Washington, D. C., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Petitioner, National Muffler Dealers Association, Inc. (Association), as its name indicates, is a trade organization for muffler dealers. The issue in this case is whether the Association, which has confined its membership to dealers franchised by Midas International Corporation (Midas), and its activities to the Midas muffler business, and thus is not "industrywide," is a "business league" entitled to the exemption from federal income tax provided by § 501(c)(6) of the Internal Revenue Code of 1954, 26 U.S.C. § 501(c)(6).1
2
* In 1971, during a contest for control of Midas, Midas muffler franchisees organized the Association under the New York Not-for-Profit Corporation Law. The Association's purpose was to establish a group to negotiate unitedly with Midas management. Its principal activity has been to serve as a bargaining agent for its members in dealing with Midas. It has enrolled most Midas franchisees as members.2 The Association was successful in negotiating a new form of franchise agreement which prevents termination during its 20-year life except for cause. It also persuaded Midas to eliminate its requirement that a customer pay a service charge when a guaranteed Midas muffler is replaced. And the Association sponsors group insurance programs, holds an annual convention, and publishes a newsletter for members.
3
The Association sought the exemption from federal income tax which § 501(c)(6) provides for a "business league." Treasury Regulation § 1.501(c)(6)-1, 26 CFR § 1.501(c)(6)-1 (1978), states that the activities of a tax exempt business league "should be directed to the improvement of business conditions of one or more lines of business."3 In view of that requirement, the Internal Revenue Service initially rejected the Association's exemption application, stating that § 501(c)(6) "would not apply to an organization that is not industry wide."4
4
The Association then (in October 1972) amended its bylaws and eliminated the requirement that its members be Midas franchisees. Despite that amendment, and despite the Association's announced purpose to promote the interests of individuals "engaged in business as muffler dealers,"5 it neither recruited nor acquired a member who was not a Midas franchisee.6
5
In 1974, after the Internal Revenue Service had issued a final rejection of the Association's exemption application, the Association filed income tax returns for its fiscal years 1971, 1972, and 1973, and, thereafter, claims for refund of the taxes paid with those returns. The 1972 claim was formally denied. Subsequent to that denial, and after more than six months had passed since the filing of the 1971 and 1973 claims, see § 6532(a)(1) of the 1954 Code, 26 U.S.C. § 6532(a)(1), the Association brought this suit in the United States District Court for the Southern District of New York asserting its entitlement to a refund for the income taxes paid for the three fiscal years. The District Court found: "There is no evidence that [the Association] confers a benefit on the muffler industry as a whole or upon muffler franchisees as a group." App. to Pet. for Cert. 11a. It then concluded that "Midas Muffler franchisees do not constitute a 'line of business,' " and held that the Association was not a "business league" within the meaning of § 501(c)(6), and thus was not entitled to the claimed refund. App. to Pet. for Cert. at 13a-14a.
6
The United States Court of Appeals for the Second Circuit affirmed. 565 F.2d 845 (1977). It confronted what it called the "lexicographer's task of deciding what is meant by a 'business league'." Id., at 846. Finding no direct guidance in the statute, the court applied the maxim noscitur a sociis ("[i]t is known from its associates," Black's Law Dictionary 1209 (Rev. 4th ed. 1968)), and looked "at the general characteristics of the organizations" with which business leagues were grouped in the statute, that is, chambers of commerce and boards of trade. The court agreed with the Service's determination, in § 1.501(c)(6)-1 of the regulations, that a business league is an "organization of the same general class as a chamber of commerce or board of trade." Reasoning that it was the "manifest intention" of Congress by the statute "to provide an exemption for organizations which promote some aspect of the general economic welfare rather than support particular private interests," the court concluded that the "line of business" requirement set forth in the regulations is "well suited to assuring that an organization's efforts do indeed benefit a sufficiently broad segment of the business community." 565 F.2d, at 846-847. The court noted that any success the Association might have in improving business conditions for Midas franchisees, and any advantage it might gain through tax exemption, would come at the expense of the rest of the muffler industry, and concluded that the Association's purpose was too narrow to satisfy the line-of-business test.
7
The court, id., at 847 n. 1, explicitly refused to follow the decision in Pepsi-Cola Bottlers' Assn. v. United States, 369 F.2d 250 (CA7 1966). There, the Seventh Circuit, by a divided vote, had upheld the exempt status of an association composed solely of bottlers of a single brand of soft drink. It did so on the ground that the line-of-business requirement unreasonably narrowed the statute.
8
We granted certiorari to resolve this conflict. 436 U.S. 903, 98 S.Ct. 2230, 56 L.Ed.2d 400 (1978).
II
9
The statute's term "business league" has no well-defined meaning or common usage outside the perimeters of § 501(c)(6). It is a term "so general . . . as to render an interpretive regulation appropriate." Helvering v. Reynolds Co., 306 U.S. 110, 114, 59 S.Ct. 423, 425, 83 L.Ed. 536, 540 (1939). In such a situation, this Court customarily defers to the regulation, which, "if found to 'implement the congressional mandate in some reasonable manner,' must be upheld." United States v. Cartwright, 411 U.S. 546, 550, 93 S.Ct. 1713, 1716, 36 L.Ed.2d 528, 532 (1973), quoting United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 449, 19 L.Ed.2d 537, 543 (1967).
10
We do this because "Congress has delegated to the [Secretary of the Treasury and his delegate, the] Commissioner [of Internal Revenue], not to the courts, the task of prescribing 'all needful rules and regulations for the enforcement' of the Internal Revenue Code. 26 U.S.C. § 7805(a)." United States v. Correll, 389 U.S., at 307, 88 S.Ct. at 449. That delegation helps ensure that in "this area of limitless factual variations," ibid., like cases will be treated alike. It also helps guarantee that the rules will be written by "masters of the subject," United States v. Moore, 95 U.S. 760, 763, 24 L.Ed. 588, 589 (1878), who will be responsible for putting the rules into effect.
11
In determining whether a particular regulation carries out the congressional mandate in a proper manner, we look to see whether the regulation harmonizes with the plain language of the statute, its origin, and its purpose. A regulation may have particular force if it is a substantially contemporaneous construction of the statute by those presumed to have been aware of congressional intent. If the regulation dates from a later period, the manner in which it evolved merits inquiry. Other relevant considerations are the length of time the regulation has been in effect, the reliance placed on it, the consistency of the Commissioner's interpretation, and the degree of scrutiny Congress has devoted to the regulation during subsequent re-enactments of the statute. See Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831, 836 (1948); Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 46, 83 L.Ed. 52, 55 (1938).
III
A.
12
The history of Treas.Reg. § 1.501(c)(6)-1 and its "line of business" requirement provides much that supports the Government's view that the Association, which is not tied to a particular community and is not industrywide, should not be exempt. The exemption for "business leagues" from federal income tax had its genesis at the inception of the modern income tax system with the enactment of the Tariff Act of October 3, 1913, 38 Stat. 114, 172. In response to a House bill which would have exempted, among others, "labor, agricultural, or horticultural organizations," the Senate Finance Committee was urged to add an exemption that would cover nonprofit business groups. Both the Chamber of Commerce of the United States and the American Warehousemen's Association, a trade association for warehouse operators,7 submitted statements to the Committee. The Chamber's spokesman said:
13
"The commercial organization of the present day is not organized for selfish purposes, and performs broad patriotic and civic functions. Indeed, it is one of the most potent forces in each community for the improvement of physical and social conditions. While its original reason for being is commercial advancement, it is not in the narrow sense of advantage to the individual, but in the broad sense of building up the trade and commerce of the community as a whole . . . ." (Emphasis added.) Briefs and statements on H.R. 3321 filed with the Senate Committee on Finance, 63d Cong., 1st Sess., 2002 (1913) (hereinafter Briefs and Statements).
The Chamber's written submission added:
14
"These organizations receive their income from dues . . . which business men pay that they may receive in common with all other members of their communities or of their industries the benefits of cooperative study of local development, of civic affairs, of industrial resources, and of local, national, and international trade." (Emphasis added.) Id., at 2003.8
15
The Committee was receptive to the idea, but rejected the Chamber's proposed broad language which would have exempted all "commercial organizations not organized for profit." Instead, the Committee, and ultimately the Congress, provided that the tax would not apply to
16
"business leagues, nor to chambers of commerce or boards of trade, not organized for profit or no part of the net income of which inures to the benefit of the private stockholder or individual." Tariff Act of Oct. 3, 1913, § II G(a), 38 Stat. 172.
17
Congress has preserved this language, with few modifications, in each succeeding Revenue Act.9
18
The Commissioner of Internal Revenue had little difficulty determining which organizations were "chambers of commerce" or boards of trade" within the meaning of the statute. Those terms had commonly understood meanings before the statute was enacted.10 "Business league," however, had no common usage, and in 1919 the Commissioner undertook to define its meaning by regulation. The initial definition was the following:
19
"A business league is an association of persons having some common business interest, which limits its activities to work for such common interest and does not engage in a regular business of a kind ordinarily carried on for profit. Its work need not be similar to that of a chamber of commerce or board of trade." Treas.Regs. 45, Art. 518 (1919).
20
This language, however, proved too expansive to identify with precision the class of organizations Congress intended to exempt. The Service began to cut back on the last sentence of the material just quoted when, in 1924, the Solicitor of Internal Revenue invoked noscitur a sociis to deny an exemption requested by a stock exchange. He reasoned that, while a stock exchange conceivably could come within the definitions of a "business league" or "board of trade," it lacked the characteristics that a "business league," "chamber of commerce," and "board of trade" share in common and that form the basis for the exemption. Congress must have used those terms, he said, "to indicate organizations of the same general class, having for their primary purpose the promotion of business welfare." The primary purpose of the stock exchange, by contrast, was "to afford facilities to a limited class of people for the transaction of their private business." L.O. 1121, III-1 Cum.Bull. 275, 280-281 (1924). The regulation was then amended so as specifically to exclude stock exchanges. T.D. 3746, IV-2 Cum.Bull. 77 (1925).11
21
In 1927, the Board of Tax Appeals, in a reviewed decision with some dissents, applied the principle of noscitur a sociis and denied a claimed "business league" exemption to a corporation organized by associations of insurance companies to provide printing services for member companies. Uniform Printing & Supply Co. v. Commissioner, 9 B.T.A. 251, aff'd, 33 F.2d 445 (CA7), cert. denied, 280 U.S. 591, 50 S.Ct. 38, 74 L.Ed. 639 (1929). In 1928, Congress revised the statute so as specifically to exempt real estate boards that local revenue agents had tried to tax.12 The exclusion of stock exchanges, however, was allowed to remain.
22
In 1929, the Commissioner incorporated the principle of noscitur a sociis into the regulation itself. The sentence, "Its work need not be similar to that of a chamber of commerce or board of trade," was dropped and was replaced with the following qualification:
23
"It is an organization of the same general class as a chamber of commerce or board of trade. Thus, its activities should be directed to the improvement of business conditions or to the promotion of the general objects of one or more lines of business as distinguished from the performance of particular services for individual persons." Treas.Regs. 74, Art. 528 (1929).
24
This language has stood almost without change for half a century13 through several re-enactments and one amendment of the statute.
25
During that period, the Commissioner and the courts have been called upon to define "line of business" as that phrase is employed in the regulation. True to the representation made by the Chamber of Commerce, in its statement to the Senate in 1913, that benefits would be received "in common with all other members of their communities or of their industries," supra, at 478, the term "line of business" has been interpreted to mean either an entire industry, see, e. g., American Plywood Assn. v. United States, 267 F.Supp. 830 (WD Wash.1967); National Leather & Shoe Finders Assn. v. Commissioner, 9 T.C. 121 (1947), or all components of an industry within a geographic area, see, e. g., Commissioner v. Chicago Graphic Arts Federation, Inc., 128 F.2d 424 (CA7 1942); Crooks v. Kansas City Hay Dealers' Assn., 37 F.2d 83 (CA8 1929); Washington State Apples, Inc. v. Commissioner, 46 B.T.A. 64 (1942).14
26
Most trade associations fall within one of these two categories.15 The Commissioner consistently has denied exemption to business groups whose membership and purposes are narrower. Those who have failed to meet the "line of business" test, in the view of the Commissioner, include groups composed of businesses that market a single brand of automobile,16 or have licenses to a single patented product,17 or bottle one type of soft drink.18 The Commissioner has reasoned that these groups are not designed to better conditions in an entire industrial "line," but, instead, are devoted to the promotion of a particular product at the expense of others in the industry.19
27
In short, while the Commissioner's reading of § 501(c)(6) perhaps is not the only possible one, it does bear a fair relationship to the language of the statute, it reflects the views of those who sought its enactment, and it matches the purpose they articulated. It evolved as the Commissioner administered the statute and attempted to give to a new phrase a content that would reflect congressional design. The regulation has stood for 50 years, and the Commissioner infrequently but consistently has interpreted it to exclude an organization like the Association that is not industrywide. The Commissioner's view therefore merits serious deference.
B
28
The Association contends, however, that the regulation is unreasonable because it unduly narrows the statute. This argument has three aspects: First, the Association argues that this Court need not defer to the regulation because, instead of being a contemporaneous construction of the statute, it is actually contrary to the regulation first in force from 1919 to 1929. Second, it argues that the addition in 1966 of professional football leagues to the statutory list of exempt organizations makes a new view of noscitur a sociis appropriate. Third, it contends that, if the maxim applies here, the Court should reach out beyond § 501(c)(6) and take into account the fact that the Association's bargaining function is much like that of a labor organization which would be exempt under § 501(c)(5). We consider these arguments in turn.
29
1. As noted above, the Commissioner's first definition of "business league" provided that its work "need not be similar to that of a chamber of commerce or board of trade." Treas.Regs. 45, Art. 518 (1919) (emphasis added). The Association contends that, because this language differs from the language that replaced it in 1929, the latter is not a "contemporaneous construction" to which this Court should defer, Bingler v. Johnson, 394 U.S. 741, 749-750, 89 S.Ct. 1439, 1444-1445, 22 L.Ed.2d 695, 703-704 (1969), but is instead an arbitrary narrowing of the statute. It is said that the earlier language rejects the rule of noscitur a sociis, and that it is the earlier language that should be treated by the Court as truly authoritative.
30
Contemporaneity, however, is only one of many considerations that counsel courts to defer to the administrative interpretation of a statute. It need not control here. Nothing in the regulations or case law, see Produce Exchange Stock Clearing Assn. v. Helvering, 71 F.2d 142 (CA2 1934), directly explains the regulatory shift. We do know, however, that the change in 1929 incorporated an interpretation thought necessary to match the statute's construction to the original congressional intent.20 We would be reluctant to adopt the rigid view that an agency may not alter its interpretation in light of administrative experience. In Helvering v. Wilshire Oil Co., 308 U.S. 90, 101, 60 S.Ct. 18, 24, 84 L.Ed.2d 101, 107 (1939), the Court acknowledged the need for flexibility and applied a 1929 regulation to a taxpayer even though the taxpayer had acted in reliance on an opposite interpretation incorporated in an earlier regulation. Here, where there is no claim that the Association ever relied on the Commissioner's prior view, the case for accepting the later regulation as authoritative is even stronger.
31
2. In 1966, Congress amended § 501(c)(6) by adding to the list of exempt organizations "professional football leagues (whether or not administering a pension fund for football players)." Act of Nov. 8, 1966, Pub.L.89-800, § 6(a), 80 Stat. 1515. The Association contends that a professional football league is not of the same general character as a chamber of commerce or board of trade, and that a new view of noscitur a sociis is appropriate, one that would include the Association within the exemption. This, of course, is the complement to the first argument.
32
Nothing in the legislative history of the amendment, however, indicates that Congress objected to or endeavored to change the Commissioner's position as to the class of organizations included in § 501(c)(6).21 The purpose of the amendment was to forestall any claim that a football league's pension plan would be considered inurement of benefits to a private individual. Congressman Mills stated flatly that "no inference is intended by this change as to the application of section 501(c)(6) to other types of organizations." 112 Cong.Rec. 28228 (1966).
33
Nor does the Association share characteristics in common with a professional football league that would necessarily entitle it to exemption even if a new view of noscitur a sociis were applied. The teams in a football league depend on mutual cooperation to promote a common business purpose. They need a league to provide uniform rules of play. A franchisee, however, does not need another franchisee in order to bargain with its franchisor, even though joint bargaining may make them more powerful. Also, it is not without significance that the 1966 amendment was part of a large statutory package which paved the way for a merger which created an "industrywide" professional football league. It can hardly be read to evince a congressional intent that other associations that are not industrywide should be afforded tax-exempt status.
34
3. The Association says that, if noscitur a sociis is to apply, then sound policy considerations support the reasonableness of searching for socii beyond the confines of § 501(c)(6). The Association draws a comparison to other exempt organizations, particularly labor unions that are exempt under § 501(c)(5). The Association says that, like a labor union, it exists to redress unequal bargaining power in the market-place. Some States have special legislation protecting franchisee associations.22 Employer bargaining associations that deal with unions in a particular industry are exempt "business leagues." Rev.Rul. 65-14, 1965-1 Cum.Bull. 236, 238. It is argued that the Association meets all the regulation's requirements except the line-of-business test.23 Applying the thin logic of that requirement to tax a nonprofit organization like the Association, it is said, unreasonably will discourage joint action to improve shared business conditions and will yield only scant revenue to the Treasury. The Association concludes that it would be appropriate now to expand the "business league" exemption to embrace the modern phenomenon of franchisee associations that was unknown in 1913.
35
These arguments are not unlike those that persuaded the Senate to add the business-league exemption to the 1913 bill. See Briefs and Statements 2002-2003. Perhaps Congress would find them forceful today. The Association, however, needs more than a plausible policy argument to prevail here. Just last Term, in Fulman v. United States, 434 U.S. 528, 536, 98 S.Ct. 841, 846, 55 L.Ed.2d 1, 10 (1978), the Court upheld a regulation which had a "reasonable basis" in the statutory history, even though the taxpayer's challenge to its policy had "logical force." Id., at 534, 536, and 540 (dissenting opinion). The choice among reasonable interpretations is for the Commissioner, not the courts. Certainly, noscitur a sociis does not compel the Commissioner to draw comparisons that go beyond the text of the Senate's amendment to the 1913 bill, particularly when the Senate Finance Committee, in drafting the amendment, rejected a broad proposal modeled on the same labor exemption the Association now wishes to incorporate.
36
In sum, the "line of business" limitation is well grounded in the origin of § 501(c)(6) and in its enforcement over a long period of time. The distinction drawn here, that a tax exemption is not available to aid one group in competition with another within an industry, is but a particular manifestation of an established principle of tax administration. Because the Association has not shown that either the regulation or the Commissioner's interpretation of it fails to "implement the congressional mandate in some reasonable manner," United States v. Correll, 389 U.S., at 307, 88 S.Ct. at 450, the Association's claim for a § 501(c)(6) exemption must be denied.
37
The judgment of the Court of Appeals is affirmed.
38
It is so ordered.
39
Mr. Justice STEWART, with whom Mr. Justice REHNQUIST and Mr. Justice STEVENS join, dissenting.
40
I would reverse the judgment for substantially the reasons expressed by the Court of Appeals for the Seventh Circuit in Pepsi-Cola Bottlers' Assn. v. United States, 369 F.2d 250 (1966). Additionally, I note that the initial administrative interpretation of the statute in the Treasury Regulations was exactly the opposite of the one now urged. Ante, at 480. That is strong evidence of the understanding of the meaning of the law at the time it was enacted.
1
The statute exempts:
"Business leagues, chambers of commerce, real-estate boards, boards of trade, or professional football leagues (whether or not administering a pension fund for football players), not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual."
2
The trial court, in focusing on the Association's fiscal years ended November 30 in 1971, 1972, and 1973, found that 290 franchised Midas dealers were members of the Association. App. 18a. This was about 50% of the dealers. By the time of the trial in 1975, the Association included almost 80% of all Midas dealers. Id., at 49a.
3
The regulation reads:
"A business league is an association of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit. It is an organization of the same general class as a chamber of commerce or board of trade. Thus, its activities should be directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons. . . . A stock or commodity exchange is not a business league, a chamber of commerce, or a board of trade within the meaning of section 501(c)(6) and is not exempt from tax. . . ."
4
Letter dated March 28, 1972, from District Director (New York), Internal Revenue Service, to the Association. Complaint Exhibit C, Record Document No. 1.
5
Certificate of Incorporation of National Muffler Dealers Association, Inc., ¶ 3. App. 41a.
6
According to an Association survey, Midas has 21% of the replacement muffler business in 18 major metropolitan markets. See 565 F.2d 845, 847 n. 2 (CA2 1977). A letter dated November 27, 1975, sent out by the Association's president and seeking new members, contained the greeting, "Dear Fellow Midas Dealer." In that letter, the Association's president announced a joint endeavor with Midas "to improve the Midas program," and stated, "I have been as loyal to the Midas business as I have to our country." App. 49a.
7
See Proceedings of the Twenty-Third Annual Meeting of the American Warehousemen's Association (1913).
8
The Chamber's statement and submission, and those of the American Warehousemen's Association, Briefs and Statements 2040, assume an importance here beyond that usually afforded such documents in the interpretation of statutes. They do so for two reasons. First, the submissions are the only available evidence of the amendment's purpose. The amendment was not discussed on the floor of either the House or the Senate, see J. Seidman, Legislative History of Federal Income Tax Laws 1002, 1003 (1938), and the Committee Reports do no more than state its text, see S.Rep.No.80, 63d Cong., 1st Sess., 25-26 (1913); H.R.Conf.Rep.No.86, 63d Cong., 1st Sess., 26 (1913). Second, the subsequent administrative interpretation of the statute directly parallels the language of the private submissions.
9
Revenue Act of 1916, § 11(a), Seventh, 39 Stat. 766 (punctuation added); Revenue Act of 1918, § 231(7), 40 Stat. 1076; Revenue Act of 1921, § 231(7), 42 Stat. 253; Revenue Act of 1924, § 231(7), 43 Stat. 282; Revenue Act of 1926, § 231(7), 44 Stat. 40; Revenue Act of 1928, § 103(7), 45 Stat. 813 (real estate boards added); Revenue Act of 1932, § 103(7), 47 Stat. 193; Revenue Act of 1934, § 101(7), 48 Stat. 700; Revenue Act of 1936, § 101(7), 49 Stat. 1674; Revenue Act of 1938, § 101(7), 52 Stat. 481; Internal Revenue Code of 1939, § 101(7), 53 Stat. 33; Internal Revenue Code of 1954, § 501(c)(6), 68A Stat. 164. See also Act of Nov. 8, 1966, Pub.L.No.89-800, § 6(a), 80 Stat. 1515 (reference to professional football leagues added).
10
Webster's New International Dictionary 245, 366 (1913), defined the terms as follows:
board of trade: "In the United States, a body of men appointed for the advancement and protection of business interests. Cf. chamber of commerce."
chamber of commerce: "[A] board or association to protect the interests of commerce, chosen from among the merchants and traders of a city. The term chamber of commerce is by some distinctively used of the bodies that are intrusted with the protection of general commercial interests, esp. in connection with foreign trade and board of trade for those dealing primarily with local commerce."
In Retailers Credit Assn. v. Commissioner, 90 F.2d 47, 51 (CA9 1937), an additional explanation of the difference between the two terms was offered:
"Although the terms 'chamber of commerce' and 'board of trade' are nearly synonymous, there is a slight distinction between their meanings. The former relates to all businesses in a particular geographic location, while the latter may relate to only one or more lines of business in a particular geographic location, but need not relate to all."
In L.O. 1121, III-1 Cum.Bull. 275, 280 (1924), the Solicitor of Internal Revenue rejected an approach to the term "board of trade" that would have encompassed "organizations which provide conveniences or facilities to certain persons in connection with buying, selling, and exchanging goods."
11
See Treas.Regs. 69, Art. 518 (1926). Because the regulation now incorporates the denial of exempt status to stock exchanges, L.O. 1121 eventually was declared obsolete. Rev.Rul. 68-207, 1968-1 Cum.Bull. 577, 578.
In United States v. Leslie Salt Co., 350 U.S. 383, 393-394, and n. 12, 76 S.Ct. 416, 422-423, 100 L.Ed. 441, 449-450 (1956), the Court approved a similar use of noscitur a sociis by the Solicitor in defining the term "certificate of indebtedness." See L.O. 909, Sales Tax Rulings, No. 85 (1920).
12
Revenue Act of 1928, § 103(7), 45 Stat. 813. See Hearings on Revenue Revision 1927-1928, before the House Committee on Ways and Means, Interim 69th-70th Cong. 235-239, 268 (1927); H.R.Rep.No.2, 70th Cong., 1st Sess., 17 (1927).
13
See Treas.Regs. 77, Art. 528 (under 1932 Act); Treas.Regs. 86, Art. 101(7)-1 (under 1934 Act) ("or to the promotion of the general objects" dropped); Treas.Regs. 94, Art. 101(7)-1 (under 1936 Act); Treas.Regs. 101, Art. 101(7)-1 (under 1938 Act); Treas.Regs. 103, § 19.101(7)-1 (under 1939 Code); Treas.Regs. 111, § 29.101(7)-1 (same); Treas.Regs. 118, § 39.101(7)-1 (same); T.D. 6301, 1958-2 Cum.Bull. 197, 203-204, and Treas.Reg. § 1.501(c)(6)-1 (under 1954 Code).
14
Cf. Produce Exchange Stock Clearing Assn. v. Helvering, 71 F.2d 142, 144 (CA2 1934) (organization not entitled to exemption because "[n]othing is done to advance the interests of the community or to improve the standards or conditions of a particular trade, as in the case of chambers of commerce, real estate boards, and boards of trade"); Note, 35 Ford.L.Rev. 738, 741 (1967).
15
The Department of Commerce has defined a trade association as "a nonprofit, cooperative, voluntarily-joined, organization of business competitors designed to assist its members and its industry in dealing with mutual business problems." J. Judkins, National Associations of the United States viii (1949) (emphasis added).
16
Rev.Rul. 67-77, 1967-1 Cum.Bull. 138, superseding I.T. 4053, 1951-2 Cum.Bull. 53 (to the same effect under prior law). Cf. Rev.Rul. 55-444, 1955-2 Cum.Bull. 258 (industrywide advertising program exempt).
17
Rev.Rul. 58-294, 1958-1 Cum.Bull. 244.
18
Rev.Rul. 68-182, 1968-1 Cum.Bull. 263 (announcing nonacquiescence in Pepsi-Cola Bottlers' Assn. v. United States, 369 F.2d 250 (CA7 1966)).
19
See Rev.Rul. 76-400, 1976-2 Cum.Bull. 153, 154. Cf. Rev.Rul. 61-177, 1961-2 Cum.Bull. 117 (organization to improve members' competitive standing in various lines of business through lobbying exempt).
The Association contends that the "line of business" language in the regulation does not represent a separate requirement for exemption but, instead, is merely illustrative of the type of organization normally granted an exemption. Both the Commissioner and the courts, however, have repeatedly characterized the line-of-business test as one that must be met before a business-league exemption will be allowed. See Rev.Rul. 67-77, 1967-1 Cum.Bull. 138; United States v. Oklahoma City Retailers Assn., 331 F.2d 328, 331 (CA10 1964); Associated Industries of Cleveland v. Commissioner, 7 T.C. 1449, 1466 (1946). While the plausibility and consistency of the Commissioner's interpretation are relevant to the reasonableness of the regulation as applied here, the Commissioner is otherwise free to determine how the regulation he has written should be construed.
20
The Court has said: "The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth of the Acts of Congress." Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859, 862 (1961).
21
See H.R.Conf.Rep.No.2308, 89th Cong., 2nd Sess., 9-10 (1966); Summary of the Act Temporarily Suspending the Investment Credit and Limiting the Use of Accelerated Depreciation, Joint Committee on Internal Revenue Taxation, 22 (1966); 112 Cong.Rec. 26882-26887, 28226, 28228 (1966).
22
See, e. g., Franchise Practices Act, N.J.Stat.Ann. § 56:10-7 (West Supp.1978-1979); Franchise Investment Protection Act, Wash.Rev.Code § 19.100.180 (1976).
23
The Association is nonprofit, and the Government does not contend here that it engages in a regular business of a kind ordinarily carried on for profit, or that its income inures to individual members, or that it performs particular services for individual members in the fee-for-service sense. It does, however, provide services that benefit Midas franchisees exclusively.
| 1112
|
440 U.S. 450
99 S.Ct. 1292
59 L.Ed.2d 501
State of NEW JERSEY, Petitioner,v.Joseph S. PORTASH.
No. 77-1489.
Argued Dec. 5, 1978.
Decided March 20, 1979.
Syllabus
Respondent municipal official testified before a state grand jury under immunity granted pursuant to a New Jersey statute preventing a public employee's grand jury testimony or evidence derived therefrom from being used against him in a subsequent criminal proceeding. Thereafter, respondent was charged with misconduct in office and extortion, and at his trial the judge ruled that respondent's grand jury testimony could be used to impeach his credibility if he testified. As a result of this ruling, respondent did not testify, and he was ultimately convicted. The New Jersey appellate court held that the use of the immunized grand jury testimony to impeach respondent would have violated the Constitution, and, because respondent's decision not to testify was based on the trial court's erroneous ruling to the contrary, reversed the conviction and remanded for a new trial. Held: Under the Fifth Amendment privilege against compulsory self-incrimination made binding on the States by the Fourteenth Amendment, respondent's testimony before the grand jury under a grant of immunity could not constitutionally be used against him in the later criminal trial. Pp. 453-460.
(a) That respondent did not take the witness stand does not render the constitutional question abstract and hypothetical. It appears from the record that the trial judge did rule on the merits of such question, and the appellate court necessarily concluded that such question had been properly presented, because it ruled in respondent's favor on the merits. Moreover, there is nothing in federal law to prohibit New Jersey from following such a procedure, nor, so long as Art. III's "case or controversy" requirement is met, to foreclose this Court's consideration of the constitutional issue now that the New Jersey courts have decided it. Pp. 454-456.
(b) Testimony given in response to a grant of legislative immunity is the essence of coerced testimony and involves the constitutional privilege against compulsory self-incrimination in its most pristine form. Thus, any balancing of interests so as to take into account the interest in preventing perjury is not only unnecessary but impermissible. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570, distinguished. Pp. 456-460.
151 N.J.Super. 200, 376 A.2d 950, affirmed.
Edwin H. Stier, Princeton, N. J., for petitioner.
Michael E. Wilbert, Brick Town, N. J., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case involves the scope of the privilege against compulsory self-incrimination, grounded in the Fifth Amendment and made binding against the States by the Fourteenth. The precise question is whether, despite this constitutional privilege, a prosecutor may use a person's legislatively immunized grand jury testimony to impeach his credibility as a testifying defendant in a criminal trial.
2
* In the early 1970's, Joseph Portash was Mayor of Manchester Township, Executive Director of the Pinelands Environmental Council, and a member of both the Ocean County Board of Freeholders and the Manchester Municipal Utilities Authority in New Jersey. In November 1974, after a lengthy investigation, a state grand jury subpoenaed Portash. He expressed an intention to claim his privilege against compulsory self-incrimination. The prosecutors and Portash's lawyers then agreed that, if Portash testified before the grand jury, neither his statements nor any evidence derived from them could, under New Jersey law, be used in subsequent criminal proceedings (except in prosecutions for perjury or false swearing).1 After Portash's testimony, the parties tried to come to an agreement to avoid a criminal prosecution against Portash, but no bargain was reached. In April 1975, Portash was indicted for misconduct in office and extortion by a public official.2
3
Before trial, defense counsel sought to obtain a ruling from the trial judge that no use of the immunized grand jury testimony would be permitted. The judge refused to rule that the prosecution could not use this testimony for purposes of impeachment. After the completion of the State's case, defense counsel renewed his request for a ruling by the trial judge as to the use of the grand jury testimony. There followed an extended colloquy, and the judge finally ruled that if Portash testified and gave an answer on direct or cross-examination which was materially inconsistent with his grand jury testimony, the prosecutor could use that testimony in his cross-examination of Portash. Defense counsel then stated that, because of this ruling, he would advise his client not to take the stand. Portash did not testify, and the jury ultimately found him guilty on one of the two counts.
4
The New Jersey Appellate Division reversed the conviction. 151 N.J.Super. 200, 376 A.2d 950 (1977). That court held that the Constitution requires that the immunity granted by the New Jersey statute must be at least coextensive with the privilege afforded by the Fifth and Fourteenth Amendments. To confer such protection, the court reasoned, the grant of immunity must "leave defendant and the State in the position each would have occupied had defendant's claim of privilege [before the grand jury] been honored." Id., at 205, 376 A.2d, at 953. Use of the immunized grand jury testimony to impeach a defendant at his trial, it held, did not meet this test. Because Portash's decision not to testify was based upon the trial court's erroneous ruling to the contrary, the Appellate Division reversed the conviction and remanded the case for a new trial.3 The New Jersey Supreme Court denied the State's petition for certification of an appeal. 75 N.J. 597, 384 A.2d 827 (1978). We granted certiorari. 436 U.S. 955, 98 S.Ct. 3067, 57 L.Ed.2d 1120.
II
5
New Jersey presents two questions. First, it argues that Portash cannot properly invoke the privilege against compulsory incrimination because he did not take the witness stand and, as a result, his immunized grand jury testimony was never used against him. Second, it urges that the Fifth and Fourteenth Amendments do not prohibit the use of immunized grand jury testimony to impeach materially inconsistent statements made at trial.
A.
6
The State contends that the issue presented by Portash is abstract and hypothetical because he did not, in fact, become a witness. Portash could have taken the stand, testified, objected to the prosecution's use of the immunized testimony to impeach him, and appealed any subsequent conviction. Absent that, the State would have us hold that the constitutional question was not and is not presented. This argument must be rejected. First, it is clear that although the trial judge was concerned about making a ruling before specific questions were asked, he did rule on the merits of the constitutional question:
7
"THE COURT: Well, this is what the Court was concerned with and still is and I thought the Court had straightened it out previously, the witness taking the stand and testifying as to something and then have counsel saying didn't you say before the grand jury such and such.
8
"MR. WILBERT [defense counsel]: That's the problem that we have. We don't know whether he's going to be able to use that or not, your Honor, especially if he didn't touch that area in his examination—
9
"THE COURT: Mr. Wilbert, suppose your client takes the stand and he testifies that I worked for Donald Safran and suppose he testified before the grand jury I never worked for Donald Safran?
10
"MR. WILBERT: Inconsistency and under your Honor's ruling that can be used in this case.
11
"THE COURT: No doubt about it.
12
"MR. WILBERT: Your Honor, I would submit it could be used over my objection, of course.
13
"THE COURT: You have a standing objection with respect to the use at all of the grand jury testimony." (Emphasis added.) App. 223a.
14
Second, the New Jersey appellate court necessarily concluded that the federal constitutional question had been properly presented, because it ruled in Portash's favor on the merits.4 See Raley v. Ohio, 360 U.S. 423, 435-437, 79 S.Ct. 1257, 1264-1266, 3 L.Ed.2d 1344; cf. Jenkins v. Georgia, 418 U.S. 153, 157, 94 S.Ct. 2750, 2753, 41 L.Ed.2d 642; Coleman v. Alabama, 377 U.S. 129, 133, 84 S.Ct. 1152, 1154, 12 L.Ed.2d 190; Whitney v. California, 274 U.S. 357, 360-361, 47 S.Ct. 641, 642-643, 71 L.Ed. 1095; Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134, 34 S.Ct. 874, 877, 58 L.Ed. 1245.
15
Moreover, there is nothing in federal law to prohibit New Jersey from following such a procedure, or, so long as the "case or controversy" requirement of Art. III is met, to foreclose our consideration of the substantive constitutional issue now that the New Jersey courts have decided it. This is made clear by a case decided by this Court in 1972, Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358. There the Court held unconstitutional a Tennessee statutory requirement that a defendant in a criminal case had to be his own first witness if he was to take the stand at all. The Court held that such a requirement unconstitutionally penalized a defendant's right to remain silent, since a defendant could remain silent immediately after the close of the State's case only at the cost of never testifying in his own defense. Although Brooks had not testified, the Tennessee court considered the constitutional validity of the state statute, and so did this Court. Because the rule imposed a penalty on the right to remain silent, the Court found that his constitutional rights had been infringed even though he had never taken the stand. Id., at 611 n. 6, 92 S.Ct., at 1894 n. 6.
16
In Brooks the Court held that the defendant's Fifth and Fourteenth Amendment rights had been violated because, in order to assert his Fifth Amendment right to remain silent after the prosecution's case in chief had been presented, the defendant would have had to pay a penalty. He could never testify. Here, as in Brooks, federal law does not insist that New Jersey was wrong in not requiring Portash to take the witness stand in order to raise his constitutional claim.5
B
17
In both Great Britain and in what later became the United States, immunity statutes, like the privilege against compulsory self-incrimination, predate the adoption of the Constitution. Kastigar v. United States, 406 U.S. 441, 445 n. 13, 446 n. 14, 92 S.Ct. 1653, 1656 n. 13, 1657 n. 14, 32 L.Ed.2d 212. This Court first considered a constitutional challenge to an immunity statute in Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. The witness in that case had refused to testify before a federal grand jury in spite of a grant of immunity under the relevant federal statute. The Court overturned his contempt conviction. It construed the statute to permit the use of evidence derived from his immunized testimony. The witness was held to have validly asserted his privilege because "legislation cannot abridge a constitutional privilege, and . . . it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect." Id., at 585, 12 S.Ct., at 206. See also Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609; Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511; Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819. After the holding in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, that the Fifth Amendment privilege against compulsory self-incrimination is also contained in the Fourteenth Amendment, this rule is necessarily applicable to state immunity statutes as well. Cf. Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678.6
18
Language in Counselman and its progeny was read by some to require that the witness must be immune from prosecution for the transaction his testimony concerned. Indeed, the federal statutes subsequently upheld by the Court granted such transactional immunity. Brown v. United States, supra; Ullmann v. United States, supra; Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450; Brown v. Walker, supra.7 The adoption of Pub.L. 91-452 in 1970 marked a change in federal immunity legislation from the provision of transactional immunity to the provision of what is known as "use" immunity. 18 U.S.C. §§ 6001, 6002. This immunity, similar to that provided by the New Jersey statute in this case, protects the witness from the use of his compelled testimony and any information derived from it. In Kastigar v. United States, supra, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, the Court upheld that statute against a challenge that mere use immunity is not coextensive with the Fifth Amendment's privilege.
19
"The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being 'forced to give testimony leading to the infliction of "penalties affixed to . . . criminal acts." ' Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness." 406 U.S., at 453, 92 S.Ct., at 1661. (Emphasis in original; footnote omitted.)
20
Against this broad statement of the necessary constitutional scope of testimonial immunity, the State asks us to weigh Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570.8 Those cases involved the use of statements, concededly taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, to impeach a defendant's testimony at trial. In both cases the Court weighed the incremental deterrence of police illegality against the strong policy against countenancing perjury. In the balance, use of the incriminating statements for impeachment purposes prevailed. The State asks that we apply the same reasoning to this case. It points out that the interest in preventing perjury is just as strongly involved, and that the statements made to the grand jury are at least as reliable as those made by the defendants in Harris and Hass.
21
But the State has overlooked a crucial distinction between those cases and this one. In Harris and Hass the Court expressly noted that the defendant made "no claim that the statements made to the police were coerced or involuntary," Harris v. New York, supra, 401 U.S. at 224, 91 S.Ct. at 645; Oregon v. Hass, supra, 420 U.S. at 722-723, 95 S.Ct. at 1220-1221. That recognition was central to the decisions in those cases.
22
The Fifth and the Fourteenth Amendments provide that no person "shall be compelled in any criminal case to be a witness against himself." As we reaffirmed last Term, a defendant's compelled statements, as opposed to statements taken in violation of Miranda, may not be put to any testimonial use whatever against him in a criminal trial. "But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law." (Emphasis in original.) Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290.9
23
Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant's will; the witness is told to talk or face the government's coercive sanctions, notably, a conviction for contempt. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled. The Fifth and Fourteenth Amendments provide a privilege against compelled self-incrimination, not merely against unreliable self-incrimination. Balancing of interests was thought to be necessary in Harris and Hass when the attempt to deter unlawful police conduct collided with the need to prevent perjury. Here, by contrast, we deal with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing, therefore, is not simply unnecessary. It is impermissible.
24
The Superior Court of New Jersey, Appellate Division, correctly ruled that a person's testimony before a grand jury under a grant of immunity cannot constitutionally be used to impeach him when he is a defendant in a later criminal trial.10 Accordingly, the judgment is affirmed.
25
It is so ordered.
26
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring.
27
I join the Court's opinion affirming the judgment in this case, despite my reservations that the decision of the Superior Court of New Jersey, Appellate Division, 151 N.J.Super. 200, 376 A.2d 950 (1977), certification denied, 75 N.J. 597, 384 A.2d 827 (1978), may well rest on independent and adequate state grounds.
28
The privilege against self-incrimination is not set out in the New Jersey Constitution. Its origins are instead to be found in the common law, see State v. Fary, 19 N.J. 431, 434-435, 117 A.2d 499, 501-502 (1955), and in statutes. See N.J.Stat.Ann. § 2A:84A-19 (West 1976). Although New Jersey courts have looked to constructions of the Fifth Amendment of the Federal Constitution as a source of illumination for the interpretation of the state privilege, see In re Pillo, 11 N.J. 8, 15-17, 93 A.2d 176, 179-180 (1952), they have also held that the interpretation of that privilege is "a matter of state law and policy, as to which [New Jersey] may impose standards more strict than required by the federal Constitution, which standards will control regardless of the final outcome of the question in the federal sphere." State v. Deatore, 70 N.J. 100, 112, 358 A.2d 163, 170 (1976). Cf. State v. Johnson, 68 N.J. 349, 353, 346 A.2d 66, 67-68 (1975).
29
In this context the Appellate Division's decision appears to rest on the independent and adequate state ground of N.J.Stat.Ann. § 2A:81-17.2a2 (West 1976). The Division's opinion begins by reciting the statute in toto, labeling it as "[t]he statutory authority for the State's grant of immunity to defendant." 151 N.J.Super., at 204, 376 A.2d, at 952. The opinion states that "[t]he question is whether the State should be required to honor its promise, expressed in its statute . . ., not to use the testimony compelled in any subsequent criminal proceeding against the defendant . . . ." (Emphasis supplied.) Id., at 207, 376 A.2d, at 954. Under these circumstances the Appellate Division's references to decisions interpreting federal constitutional law seem to be mere analogies, illuminating the Division's ultimate construction of N.J.Stat.Ann. § 2A:81-17.2a2.1 Logically, interpretations of the Fifth Amendment can at most serve as guidance to New Jersey's interpretation of its own statute.2 It is also of no little significance that, although the State rests its case heavily on Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), see Brief for Petitioner 38-39, the Supreme Court of New Jersey has recently held that the state privilege against self-incrimination may well be "stricter" than that required by Harris. See State v. Deatore, supra, 70 N.J. at 116, 358 A.2d, at 172.
30
But the Court reads the New Jersey court's opinion as resting on the Federal Constitution. That reading would not have been possible had the New Jersey court's opinion in this case been as explicit as in Deatore.3 However, since I fully agree with the Court's disposition of the federal constitutional question, I shall not further press the point but join the Court's opinion.
31
Mr. Justice POWELL, with whom Mr. Justice REHNQUIST joins, concurring.
32
I concur in the Court's opinion, and add these comments.
33
As stated by the Court, New Jersey makes two arguments in support of its request for reversal. First, it insists that, because Portash did not take the witness stand, his immunized testimony was not used against him and he therefore cannot complain of a violation of his Fifth Amendment privilege. The preferred method for raising claims such as Portash's would be for the defendant to take the stand and appeal a subsequent conviction, if—following a claim of immunity—the prosecutor were allowed to use immunized testimony for impeachment. Only in this way may the claim be presented to a reviewing court in a concrete factual context. Moreover, requiring that the claim be presented only by those who have taken the stand will prevent defendants with no real intention of testifying from creating artificial constitutional challenges to their convictions.1
34
This is a state case, however, in which the New Jersey Appellate Division apparently accepted the procedure followed by the trial court and treated the constitutional question as having been properly presented. I agree with the Court that this procedural question was within the authority of the state court to decide.2
35
The State also argues, quite apart from the procedural context in which the question arises, that immunized grand jury testimony may be used to impeach a criminal defendant's testimony at trial. The Court correctly rejects this argument, ruling that the coercing of Portash to testify before the grand jury constituted a classic case of "compelling" a defendant to be a witness against himself. See Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972).
36
The Court has referred to two quite different interests in determining whether the Fifth Amendment permits a defendant's statements to be used against him at trial. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court emphasized the trustworthiness of a suspect's statements made to police, noting that there was no indication that the statements were "coerced or involuntary." Similarly, here there is no reason to question the veracity of the respondent's grand jury testimony. The Court today recognizes, however, that the privilege against self-incrimination protects against more than just the use of false or inaccurate statements against a criminal defendant. In addition, the Fifth Amendment, by virtue of its incorporation through the Fourteenth Amendment prohibits a State from using compulsion to extract truthful information from a defendant, when that information is to be used later in obtaining the individual's conviction.
37
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, dissenting.
38
The Court in this case reaches out to decide an important constitutional question even though that question is presented in the context of an abstract dispute over a hypothetical ruling of the trial court. For me, the facts present too remote and speculative an injury to federally protected rights to support the exercise of jurisdiction by this Court. Indeed, examination of the record reveals for me that the Court decides today a question different from the one the trial court considered. This demonstrates how far afield we range when we cut loose from the requirement that only concrete disputes may be decided by this Court. Because I believe the Court is without authority to engage in this type of abstract adjudication of constitutional rights in a factual vacuum, I dissent.
39
Prior to trial, and again at the close of the State's evidence, respondent Portash attempted to obtain an advance evidentiary ruling from the trial court. Though the precise nature of the ruling respondent sought is a matter of dispute, it related generally to whether and to what extent the State would be permitted to use, during cross-examination of respondent and in the rebuttal phase of its own case, information supplied by respondent under the statutory grant of immunity. When respondent failed to obtain a ruling he considered satisfactory, he refrained from testifying in his own behalf. Accordingly, he did not take the stand at the trial. He was not cross-examined. He gave no answer determined by the trial court to be materially inconsistent with any prior immunized statement on a relevant issue. The State did not seek to impeach him through use of immunized testimony. And the trial court did not rule that the State could do so in response to an inconsistent answer, or that the State could otherwise make use of immunized testimony at trial. In short, because of his failure to take the stand, respondent was never incriminated through the use of the testimony he previously had supplied under the immunity grant.
40
Even so, the Court takes jurisdiction over this dispute and decides the merits of respondent's claim that it would have constituted a violation of his right under the Fifth and Fourteenth Amendments to be free from compelled self-incrimination had the State used immunized testimony to impeach him, assuming, of course, that he would have taken the stand, that he would have given materially inconsistent answers to relevant questions, and that the State would have chosen to impeach him with prior immunized testimony. The Court justifies this assertion of jurisdiction, over the State's objection that the dispute is only hypothetical, by announcing that the New Jersey courts decided the issue and held it to be properly presented on appeal. Citing cases such as Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), and Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), ante, at 455, the Court holds that New Jersey's determination that the federal issue properly has been presented is sufficient to allow this Court to decide the issue, notwithstanding respondent's failure to take the stand. "[T]here is nothing in federal law to prohibit New Jersey from following such a procedure," the Court holds, "or, so long as the 'case or controversy' requirement of Art. III is met, to foreclose our consideration of the substantive constitutional issue now that the New Jersey courts have decided it."
41
But the State's objection, as I understand it, goes not to whether the federal issue properly was presented in the state courts, but to whether, in light of respondent's failure to testify, the alleged claim is too remote and speculative to support jurisdiction here. As such, resolution of the State's objection turns not on the determination that the New Jersey courts recognized the federal issue as properly presented, but on the determination that there is indeed a federal issue in the case. And this latter determination depends upon whether, as a matter of federal law, there is a sufficiently concrete controversy over the scope of a federal right to support the exercise of jurisdiction by this Court.
42
The Court tacitly recognizes this, I take it, by conceding, ante, at 455-456, that the "case or controversy" requirement of Art. III must be met and by its citation of Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972). For in Brooks, the dissenters argued that since the defendant had not taken the stand, his right to be free from compelled self-incrimination had not been infringed, and therefore the defendant had not presented the Court with any federal issue "bearing on the privilege against self-incrimination." Id., at 617, 92 S.Ct., at 1897. The Court answered that argument by saying that the Tennessee statute in issue imposed a burden on the right to remain silent by penalizing a defendant who asserted that right at the start of his case, and "that penalty constitute[d] the infringement of the right." Id., at 611 n. 6, 92 S.Ct., at 1894 n. 6. Thus, in Brooks, the Court found that there was a federal issue presented even though the defendant had not taken the stand, since it was the exercise of the right not to testify that the State burdened.
43
As in Brooks, the Court here must believe that there was some infringement of a federal right sufficient to establish a concrete controversy capable of supporting its jurisdiction. But, unlike in Brooks, the Court takes care to omit any mention of what federal right was infringed by the hypothetical "ruling" of the trial court. It simply says that New Jersey recognized the issue as having been presented, intimates that the case is within Art. III's case-or-controversy requirement, and proceeds to the merits.
44
What federal right it is that the "ruling" of the trial court infringed is not easy to ascertain. It would not appear that the right to remain silent, at issue in Brooks, was burdened, since respondent asserted that right without suffering any penalty for doing so. Nor did the hypothetical ruling compel respondent to incriminate himself, since it did not force him to take the stand and subject himself to impeachment by use of the immunized testimony. Respondent argues that it was his right to testify in his own behalf that the trial court infringed by threatening him with the possibility that, if he were to testify and if he were to give materially inconsistent answers to relevant questions, the court would permit the State to impeach respondent with his immunized testimony, if the State could do so. This threat, respondent now argues, deterred him from taking the stand in his own behalf, and thereby constituted an unconstitutional infringement of his right to testify. Brief for Respondent 13.
45
This appears to be the theory that the Appellate Division proceeded upon, see 151 N.J.Super. 200, 204, 209, 376 A.2d 950, 952, 955, and it appears to be the most plausible reasoning upon which one could conclude that this case involves an actual, and not hypothetical, invasion of federal rights. As such, the Court today sub silentio decides as a matter of federal law that the hypothetical ruling by a state court that it would permit impeachment with immunized testimony in certain circumstances not yet come to pass creates a sufficient infringement on the right to testify as to create a controversy capable of being adjudicated here.
46
But this claimed burden on the right to testify is too speculative to support the exercise of jurisdiction by this Court over the ultimate dispute concerning the use of immunized testimony. On this record, we cannot tell whether respondent would have taken the stand even had he obtained the ruling he sought from the trial court. The decision by a criminal defendant to testify is often the most important decision he faces in the trial, and it seldom turns on the resolution of one factor among many. Even had respondent taken the stand, there is no assurance he would have given inconsistent answers to questions. Indeed, respondent vigorously has argued, in this Court and in the state courts, that he would not have testified in any manner inconsistently with his immunized testimony. Moreover, even had inconsistent answers been given, the trial court would have had to determine whether the answers were offered in response to relevant and material questions before it would have permitted impeachment. And even then, there is no certainty that the State actually would have sought to use immunized materials to impeach respondent.
47
In these circumstances, I would hold the dispute as to the use of the immunized testimony to be too remote and speculative to enable this Court to adjudicate it. Cf. Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). By finding sufficient controversy to exist in this case to reach the federal issue, the Court exercises jurisdiction over an abstract dispute of no concrete significance, and as a result renders an advisory opinion, informing respondent what the State would have been permitted to do or not do had respondent ever taken the stand.
48
I find this adjudication of an abstract dispute not only to be beyond the jurisdiction of the Court but to be unwise as well. At a minimum, as our Brother POWELL notes, ante, at 462, a requirement that such a claim be adjudicated on appeal only when presented by a defendant who has taken the stand prevents a defendant from manufacturing constitutional challenges when he has no intention of taking the stand and testifying in his own behalf. More fundamentally, such disembodied decisionmaking removes disputes from the factual and often legal context that sharpens issues, highlights problem areas of special concern, and, above all, gives a reviewing court some notion of the practical reach of its pronouncements.
49
Indeed, my examination of the record in this case makes me suspect that in adjudicating an abstract and academic legal question the Court has affirmed the reversal of respondent's conviction on the basis of an issue not even argued by respondent at the trial level in his attempt to obtain an advance ruling from the trial court. It is clear to me that the possible use of immunized testimony to impeach respondent was not at all respondent's concern before the trial court. At the pretrial hearing respondent's counsel conceded that if respondent gave materially inconsistent answers, he could be impeached with the grand jury testimony or prosecuted for perjury. App. 144a. Rather, respondent was attempting to obtain an advance ruling from the trial court that the State could not rely on information gathered from respondent's immunized testimony in formulating questions for respondent on cross-examination. His argument to the trial court was that unless the State could show that it discovered the information that formed the basis of its questions from a source independent of his immunized testimony, the Fifth Amendment prohibited the State from asking those questions. And it was in reliance on the trial court's ruling that it would not decide in advance on this request—but would wait until each question was asked to consider this objection—that respondent refused to take the stand.
50
The record at almost every point supports this interpretation of what it was that respondent sought from the trial court. For example, in the course of conceding that respondent properly would be subject to impeachment with the grand jury testimony if he gave answers at trial materially inconsistent with that testimony, respondent's counsel stated that he "merely want[ed] a ruling from the Court that, unless the door is opened, that they are not permitted to use any of [the immunized testimony] by way of cross examination, by way of rebuttal, or by way of cross examination of any of our witnesses, with the one limitation, that I think is inherent, is that except in the event of perjury" (emphasis added). App. 146a. See id., at 143a-148a.
51
Similarly, when counsel renewed this argument at the close of the State's evidence, the record reveals that his concern was not with impeachment, but with the use of the immunized testimony as a basis for asking questions. Thus, counsel argued that what the immunity statute proscribed was "use [of] the fruits of his testimony to cross examine him in his testimony." Id., at 203a.1
52
Concededly, in the passage the Court quotes, ante, at 454-455, the trial court stated that if respondent gave materially inconsistent answers, it would permit impeachment with the immunized testimony. But an examination of the entire discussion from which that quotation is lifted makes it clear that respondent was not seeking a ruling as to impeachment for inconsistent statements, but a limitation on the scope of cross-examination. Thus, just before the quoted exchange, respondent's counsel assured the trial court that "the direct examination will in no way be inconsistent with his grand jury [immunized] testimony," App. 220a, but that the problem concerned the use of "consistent grand jury testimony which is incriminating to convict the man on the stand." Ibid. And immediately after the passage upon which the Court relies, respondent waved off the impeachment issue and stated that the problem that concerned him was the use by the State of information obtained from the immunized testimony to force respondent to give answers on the stand that would incriminate him.2
53
The trial court refused to rule in advance on this attempt to limit cross-examination, and it was this refusal that respondent claimed prompted his refusal to testify. Id., at 243a. Before the Appellate Division, however, the dispute was transmuted into one over the ability of the State to impeach respondent with the immunized testimony. It was on that issue that the conviction was reversed. And it is on that issue that this Court affirms that reversal. Thus, because the Court reaches out to decide a theoretical legal question presented in an abstract setting, it permits respondent to obtain a favorable ruling from this Court on an issue of federal law that he did not assert in the trial court, and that did not form the basis for his refusing to testify in that court. And I assume respondent will be free at a new trial to renew his original argument, that the State is forbidden to use what it learned from the immunized testimony in formulating questions on cross-examination. This illustrates, I think, the problems the Court will encounter in every case in which it abandons the requirement that such an issue be presented for resolution only in the context of a concrete dispute about its actual operation at trial.
54
If this case presented simply the question whether state law had reviewed the federal issue as properly presented, I could understand better the Court's desire to reach the federal issue. But though a State may decide whether a federal issue actually present in the case properly was brought to the attention of its own courts for adjudication, e. g., Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), it never should transform an abstract dispute about a federal constitutional right into a case or controversy capable of being adjudicated in this Court simply by deciding that federal issue. Doremus v. Board of Education, 342 U.S. 429, 434-435, 72 S.Ct. 394, 397-398, 96 L.Ed. 475 (1952). Otherwise, a State, by ruling on a purely hypothetical legal question in the context of reviewing a criminal conviction, could confer Art. III jurisdiction on this Court where the facts do not support the existence of a case or controversy.
55
I would require that respondent take the stand and actually assert the rights he seeks to vindicate in the context of an actual attempt by the State to use the immunized testimony. Because the Court does not require this, I dissent.
1
At that time a New Jersey statute provided as follows:
"If any public employee testifies before any court, grand jury or the State Commission of Investigation, such testimony and the evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State; provided that no such public employee shall be exempt from prosecution or punishment for perjury committed while so testifying." New Jersey Public Employees Immunity Statute, N.J.Stat.Ann. § 2A:81-17.2a2 (West 1976).
2
Portash has not contended that the indictment was based on information disclosed by or "derived" from his immunized testimony. Before trial he did move for dismissal of the indictment on two grounds. First, he argued that the course of dealings between himself and the prosecution established an agreement that he would not be prosecuted so long as he cooperated with the State. Second, he contended that he had impermissibly been forced to incriminate himself by providing certain employment records to the grand jury. The trial court rejected both arguments; neither is urged here.
3
We read the state-court opinion as resting its judgment unambiguously and exclusively on the Federal Constitution. The court said:
"The immunity device, however, will only be deemed a sufficient answer to a claim of privilege if the scope of immunity afforded is commensurate in all respects with the privilege against self-incrimination which it replaces. United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Kastigar v. United States, 406 U.S. 441, 459, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)." 151 N.J.Super., at 205, 376 A.2d, at 953.
Both Calandra and Kastigar were, of course, federal constitutional decisions. The court discussed several other federal cases in the course of its opinion, and nowhere indicated any reliance on principles of state constitutional or common law.
4
Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196, was another case where provisions of state law allowed federal review that may not otherwise have been available. There, New York law allowed a defendant to appeal defeat of a motion to suppress even though he later pleaded guilty. The Court held that because the State recognized such a procedure, a state prisoner who had pleaded guilty could assert his Fourth and Fourteenth Amendment claim in a federal habeas corpus proceeding, even though federal habeas corpus relief would not generally have been available to one who had pleaded guilty.
5
A similar situation existed in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82. The Court held in that case that state notice-of-alibi requirements could be enforced only if the State provided reciprocal discovery rights for the defendant. The defendant in that case had not given a notice of alibi. The State argued that he could not assert his constitutional claim, because he should have given his notice of alibi and then argued that the State had to grant him reciprocal discovery. The Court rejected that argument, and held that he need not give notice to raise his constitutional claim.
6
The Murphy case dealt with the problem of dual sovereignty. The issue was whether a State could grant constitutionally sufficient immunity if another jurisdiction could use the immunized testimony in a prosecution. The Court proceeded on the premise that a State is required to provide at least use immunity, and held that such immunity would have to be honored by the Federal Government. See Kastigar v. United States, 406 U.S. 441, 455-459, 92 S.Ct. 1653, 1662-1664, 32 L.Ed.2d 212.
7
See Shapiro v. United States, 335 U.S. 1, 6 n. 4, 68 S.Ct. 1375, 1378 n. 4, 92 L.Ed. 1787, for a list of the federal statutes that provided transactional immunity.
8
The Court in both the Harris and Hass cases relied on Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503, a case in which the Court held that the Fourth Amendment's exclusionary rule does not prevent the use of unconstitutionally seized evidence to impeach a defendant's credibility.
9
We express no view as to whether possibly truthful immunized testimony may be used in a subsequent false-declarations prosecution premised on an inconsistency between that testimony and later, nonimmunized, testimony. That question will be presented in Dunn v. United States, 439 U.S. 1045, 99 S.Ct. 719, 58 L.Ed.2d 703 (1978).
10
There is discussion in the briefs of the parties regarding the admissibility of statements made by Portash during pre-indictment negotiations with the state prosecutors. We do not understand the opinion of the state appellate court to have dealt with this issue, and nothing said in this opinion bears on it.
1
The immunity statute at issue in this case, N.J.Stat.Ann. § 2A:81-17.2a2 (West 1976), is "self-executing," State v. Vinegra, 134 N.J.Super. 432, 440, 341 A.2d 673, 677 (1975), and therefore, as one New Jersey court put it, a "defendant's Fifth Amendment protection is derived from the statute." Id. at 439, 341 A.2d, at 677.
2
There is no suggestion, of course, that New Jersey's interpretation of its statute violates the guarantees of the Fifth Amendment of the Federal Constitution.
3
"We reach that conclusion as a matter of state law and policy . . . regardless of the final outcome of the question in the federal sphere." 70 N.J., at 112, 358 A.2d, at 170.
1
Criminal defendants, as an aid to determining trial strategy, no doubt would prefer to be told in advance of trial whether prior testimony may be used to impeach if they take the stand. But there is no constitutional requirement that defendants be given such a ruling at a time when only a hypothetical question can be presented.
2
Accordingly, the Court need not, and, as I read its opinion, does not decide whether it would regard the constitutional issue as having been properly presented if this case had arisen in federal court.
1
"Mr. Wilbert [defense counsel]: Your Honor, what they are going to do is attempt to enlarge the cross examination to question him about aspects of that grand jury testimony when he is not inconsistent at all on direct examination with it. They're going to make him inconsistent or make him incriminate himself by the use of the grand jury testimony. . . . If we stay out of the area totally and then on cross examination they ask him to give an answer that's consistent with his grand jury testimony but which incriminates him, how can that possibly be permitted, your Honor? . . . . [W]hat they're doing there is utilizing that grand jury testimony not to show an inconsistency but to create consistent incrimination . . . ." App. 203a-204a (emphasis added).
See id., at 168a, 173a, 192a-193a, 202a-203a.
2
"Mr. Wilbert: . . . . If they're allowed to open the grand jury testimony of Mr. Portash by asking him the questions that they only gained knowledge of in his grand jury testimony and when he didn't testify about it on direct, I submit it is an absolute erroneous use under the law, erroneous use of that grand jury testimony and that's what I'm—that's why I'm here seeking clarification, that's what it's all about." Id., at 228a.
See id., at 225a, 228a, 230a-231a.
| 01
|
440 U.S. 568
99 S.Ct. 1355
59 L.Ed.2d 587
NEW YORK CITY TRANSIT AUTHORITY et al., Petitioners,v.Carl A. BEAZER et al.
No. 77-1427.
Argued Dec. 6, 1978.
Decided March 21, 1979.
Syllabus
Petitioner, New York City Transit Authority (TA), which, in operating the subway system and certain bus lines in New York City, employs about 47,000 persons, of whom many are employed in positions that involve danger to themselves or to the public, enforces a general policy against employing persons who use narcotic drugs. TA interprets its drug regulation to encompass current users of methadone, including those receiving methadone maintenance treatment for curing heroin addiction. Respondents, two former employees of TA who were dismissed while they were receiving methadone treatment, and two persons who were refused employment because they were receiving methadone treatment, brought a class action, alleging, inter alia, that TA's blanket exclusion of all former heroin addicts receiving methadone treatments was illegal under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The District Court found that TA's blanket methadone policy violates the Equal Protection Clause, and granted injunctive relief which, however, authorized TA to exclude methadone users from specific categories of safety-sensitive positions and also to condition eligibility on satisfactory performance in a methadone program for at least a year. Subsequently, the District Court also held that TA's drug policy violates Title VII because even though the policy was not adopted with a discriminatory purpose, it nevertheless was not related to any of TA's business needs. The Court of Appeals affirmed the District Court's constitutional holding without reaching the statutory question. Held:
1. An amendment to the Rehabilitation Act of 1973 after certiorari was granted, even if construed to proscribe TA's enforcement of a general rule denying employment to methadone users, does not render the case moot, since respondents' claims arose even before that Act itself was passed, and they have been awarded monetary relief. More importantly, however this Court might construe that Act, the concerns that prompted the grant of certiorari—the lower courts' departure from the procedure normally followed in addressing statutory and constitutional questions in the same case, and the concern that those courts erroneously decided the merits of such questions—would still merit this Court's attention. Pp. 580-581.
2. The statistical evidence on which respondents and the District Court relied does not support the conclusion that TA's regulation prohibiting the use of narcotics, or its interpretation of that regulation to encompass users of methadone, violated Title VII. Pp. 583-587.
(a) The statistic that 81% of the employees referred to TA's medical director for suspected violations of its narcotics rule were either black or Hispanic indicates nothing about the racial composition of the employees suspected of using methadone, and respondents have only challenged the rule to the extent that it is construed to apply to methadone users. Nor does the record provide any information about the number of black, Hispanic, or white persons who were dismissed for using methadone. Pp. 584-585.
(b) The statistic that about 63% of the persons in New York City receiving methadone maintenance in public programs are black or Hispanic does not indicate how many of these persons ever worked or sought to work for TA; tells nothing about the class of otherwise-qualified applicants and employees who have participated in methadone maintenance programs for over a year, the only class improperly excluded by TA's policy under the District Court's analysis; and affords no data on the 14,000 methadone users in private programs, leaving open the possibility that the percentage of blacks and Hispanics in the class of methadone users is not significantly greater than the percentage of those minorities in the general population of New York City. Pp. 585-586.
(c) Even if respondents' statistical showing is considered to be sufficient to establish a prima facie case of discrimination, it is rebutted by TA's demonstration that its narcotics rule (and the rule's application to methadone users) is "job related." The District Court's finding that the rule was not motivated by racial animus forecloses any claim that it was merely a pretext for intentional discrimination. P. 587.
3. TA's blanket exclusion of persons who regularly use narcotic drugs, including methadone, does not violate the Equal Protection Clause for failing to include more precise special rules for methadone users who have progressed satisfactorily with their treatment for one year and who, when examined individually, satisfy TA's employment criteria for nonsensitive jobs. Pp. 587-594.
(a) An employment policy such as TA's that postpones eligibility for employment until the methadone treatment has been completed, rather than accepting an intermediate point on an uncertain line—such as one year of treatment—is rational and is neither unprincipled nor invidious in the sense that it implies disrespect for the excluded subclass. Pp. 590-592.
(b) Even assuming that TA's rule is broader than necessary to exclude those methadone users who are not actually qualified to work for TA, and that it is probably unwise for a large employer like TA to rely on a general rule instead of individualized considerations of every job applicant, nevertheless under the circumstances of this case such assumptions concern matters of personnel policy that do not implicate the principle safeguarded by the Equal Protection Clause. Pp. 592-593.
558 F.2d 97, reversed.
Joan Offner, New York City, for petitioners.
Deborah M. Greenberg, New York City, for respondents.
Mr. Justice STEVENS delivered the opinion of the Court.
1
The New York City Transit Authority refuses to employ persons who use methadone. The District Court found that this policy violates the Equal Protection Clause of the Fourteenth Amendment. In a subsequent opinion, the court also held that the policy violates Title VII of the Civil Rights Act of 1964. The Court of Appeals affirmed without reaching the statutory question. The departure by those courts from the procedure normally followed in addressing statutory and constitutional questions in the same case, as well as concern that the merits of these important questions had been decided erroneously, led us to grant certiorari.1 438 U.S. 904, 98 S.Ct. 3121, 57 L.Ed.2d 1146. We now reverse.
2
The Transit Authority (TA) operates the subway system and certain bus lines in New York City. It employs about 47,000 persons, of whom many—perhaps most—are employed in positions that involve danger to themselves or to the public. For example, some 12,300 are subway motormen, towermen, conductors, or bus operators. The District Court found that these jobs are attended by unusual hazards and must be performed by "persons of maximum alertness and competence." 399 F.Supp. 1032, 1052 (SDNY 1975). Certain other jobs, such as operating cranes and handling high-voltage equipment, are also considered "critical" or "safety sensitive," while still others, though classified as "noncritical," have a potentially important impact on the overall operation of the transportation system.2
3
TA enforces a general policy against employing persons who use narcotic drugs. The policy is reflected in Rule 11(b) of TA's Rules and Regulations.
4
"Employees must not use, or have in their possession, narcotics, tranquilizers, drugs of the Amphetamine group or barbiturate derivatives or paraphernalia used to administer narcotics or barbiturate derivatives, except with the written permission of the Medical Director—Chief Surgeon of the System."
5
Methadone is regarded as a narcotic within the meaning of Rule 11(b). No written permission has ever been given by TA's medical director for the employment of a person using methadone.3
6
The District Court found that methadone is a synthetic narcotic and a central nervous system depressant. If injected into the bloodstream with a needle, it produces essentially the same effects as heroin.4 Methadone has been used legitimately in at least three ways—as a pain killer, in "detoxification units" of hospitals as an immediate means of taking addicts off of heroin,5 and in long-range "methadone maintenance programs" as part of an intended cure for heroin addiction. See 21 CFR § 310.304(b) (1978). In such programs the methadone is taken orally in regular doses for a prolonged period. As so administered, it does not produce euphoria or any pleasurable effects associated with heroin; on the contrary, it prevents users from experiencing those effects when they inject heroin, and also alleviates the severe and prolonged discomfort otherwise associated with an addict's discontinuance of the use of heroin.
7
About 40,000 persons receive methadone maintenance treatment in New York City, of whom about 26,000 participate in the five major public or semipublic programs,6 and 14,000 are involved in about 25 private programs.7 The sole purpose of all these programs is to treat the addiction of persons who have been using heroin for at least two years.
8
Methadone maintenance treatment in New York is largely governed by regulations promulgated by the New York State Drug Abuse Control Commission. Under the regulations, the newly accepted addict must first be detoxified, normally in a hospital. A controlled daily dosage of methadone is then prescribed. The regulations require that six doses a week be administered at a clinic, while the seventh day's dose may be taken at home. If progress is satisfactory for three months, additional doses may be taken away from the clinic, although throughout most of the program, which often lasts for several years, there is a minimum requirement of three clinic appearances a week. During these visits, the patient not only receives his doses but is also counseled and tested for illicit use of drugs.8
9
The evidence indicates that methadone is an effective cure for the physical aspects of heroin addiction. But the District Court also found "that many persons attempting to overcome heroin addiction have psychological or life-style problems which reach beyond what can be cured by the physical taking of doses of methadone." 399 F.Supp., at 1039. The crucial indicator of successful methadone maintenance is the patient's abstinence from the illegal or excessive use of drugs and alcohol. The District Court found that the risk of reversion to drug or alcohol abuse declines dramatically after the first few months of treatment. Indeed, "the strong majority" of patients who have been on methadone maintenance for at least a year are free from illicit drug use.9 But a significant number are not. On this critical point, the evidence relied upon by the District Court reveals that even among participants with more than 12 months' tenure in methadone maintenance programs, the incidence of drug and alcohol abuse may often approach and even exceed 25%.10
10
This litigation was brought by the four respondents as a class action on behalf of all persons who have been, or would in the future be, subject to discharge or rejection as employees of TA by reason of participation in a methadone maintenance program. Two of the respondents are former employees of TA who were dismissed while they were receiving methadone treatment.11 The other two were refused employment by TA, one both shortly before and shortly after the successful conclusion of his methadone treatment,12 and the other while he was taking methadone.13 Their complaint alleged that TA's blanket exclusion of all former heroin addicts receiving methadone treatment was illegal under the Civil Rights Act of 1866, Rev.Stat. § 1977, 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment.
11
The trial record contains extensive evidence concerning the success of methadone maintenance programs, the employability of persons taking methadone, and the ability of prospective employers to detect drug abuse or other undesirable characteristics of methadone users. In general, the District Court concluded that there are substantial numbers of methadone users who are just as employable as other members of the general population and that normal personnel-screening procedures—at least if augmented by some method of obtaining information from the staffs of methadone programs—would enable TA to identify the unqualified applicants on an individual basis. 399 F.Supp., at 1048-1051. On the other hand, the District Court recognized that at least one-third of the persons receiving methadone treatment—and probably a good many more—would unquestionably be classified as unemployable.14
12
After extensively reviewing the evidence, the District Court briefly stated its conclusion that TA's methadone policy is unconstitutional. The conclusion rested on the legal proposition that a public entity "cannot bar persons from employment on the basis of criteria which have no rational relation to the demands of the jobs to be performed." Id., at 1057. Because it is clear that substantial numbers of methadone users are capable of performing many of the jobs at TA, the court held that the Constitution will not tolerate a blanket exclusion of all users from all jobs.
13
The District Court enjoined TA from denying employment to any person solely because of participation in a methadone maintenance program. Recognizing, however, the special responsibility for public safety borne by certain TA employees and the correlation between longevity in a methadone maintenance program and performance capability, the injunction authorized TA to exclude methadone users from specific categories of safety-sensitive positions and also to condition eligibility on satisfactory performance in a methadone program for at least a year. In other words, the court held that TA could lawfully adopt general rules excluding all methadone users from some jobs and a large number of methadone users from all jobs.
14
Almost a year later the District Court filed a supplemental opinion allowing respondents to recover attorney's fees under 42 U.S.C. § 2000e-5(k). This determination was premised on the court's additional holding that TA's drug policy violated Title VII. Having already concluded that the blanket exclusion was not rationally related to any business needs of TA, the court reasoned that the statute is violated if the exclusionary policy has a discriminatory effect against blacks and Hispanics. That effect was proved, in the District Court's view, by two statistics: (1) of the employees referred to TA's medical consultant for suspected violation of its drug policy, 81% are black or Hispanic; (2) between 62% and 65% of all methadone-maintained persons in New York City are black or Hispanic. 414 F.Supp. 277, 278-279 (SDNY 1976). The court, however, did not find that TA's policy was motivated by any bias against blacks or Hispanics; indeed, it expressly found that the policy was not adopted with a discriminatory purpose. Id., at 279.
15
The Court of Appeals affirmed the District Court's constitutional holding. 558 F.2d 97. While it declined to reach the statutory issue, it also affirmed the award of attorney's fees under the aegis of the recently enacted Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, which provides adequate support for an award of legal fees to a party prevailing on a constitutional claim.15
16
After we granted certiorari, Congress amended the Rehabilitation Act of 1973, 87 Stat. 357, 29 U.S.C. § 701 et seq., to prohibit discrimination against a class of "handicapped individuals" that arguably includes certain former drug abusers and certain current users of methadone. Pub.L. 95-602, 92 Stat. 2984. Respondents argue that the amendment now mandates at least the prospective relief granted by the District Court and the Court of Appeals and that we should therefore dismiss the writ as improvidently granted. We are satisfied, however, that we should decide the constitutional question presented by the petition. Before doing so, we shall discuss (1) the effect of the Rehabilitation Act on this case; and (2) the error in the District Court's analysis of Title VII.
17
* Respondents contend that the recent amendment to § 7(6) of the Rehabilitation Act proscribes TA's enforcement of a general rule denying employment to methadone users.16 Even if respondents correctly interpret the amendment, and even if they have a right to enforce that interpretation,17 the case is not moot since their claims arose even before the Act itself was passed,18 and they have been awarded monetary relief.19 Moreover, the language of the statute, even after its amendment, is not free of ambiguity,20 and no administrative or judicial opinions specifically considering the impact of the statute on methadone users have been called to our attention. Of greater importance, it is perfectly clear that however we might construe the Rehabilitation Act, the concerns that prompted our grant of certiorari would still merit our attention.21 We therefore decline to give the statute its first judicial construction at this stage of the litigation.
II
18
Although respondents have consistently relied on both statutory and constitutional claims, the lower courts focused primarily on the latter. Thus, when the District Court decided the Title VII issue, it did so only as an afterthought in order to support an award of attorney's fees; the Court of Appeals did not even reach the Title VII issue. We do not condone this departure from settled federal practice. "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101. Before deciding the constitutional question, it was incumbent on those courts to consider whether the statutory grounds might be dispositive.22 Whatever their reasons for not doing so,23 we shall first dispose of the Title VII issue.24
19
The District Court's findings do not support its conclusion that TA's regulation prohibiting the use of narcotics, or its interpretation of that regulation to encompass users of methadone, violated Title VII of the Civil Rights Act.
20
A prima facie violation of the Act may be established by statistical evidence showing that an employment practice has the effect of denying the members of one race equal access to employment opportunities. Even assuming that respondents have crossed this threshold, when the entire record is examined it is clear that the two statistics on which they and the District Court relied do not prove a violation of Title VII.25
21
First, the District Court noted that 81% of the employees referred to TA's medical director for suspected violation of its narcotics rule were either black or Hispanic. But respondents have only challenged the rule to the extent that it is construed to apply to methadone users, and that statistic tells us nothing about the racial composition of the employees suspected of using methadone.26 Nor does the record give us any information about the number of black, Hispanic, or white persons who were dismissed for using methadone.
22
Second, the District Court noted that about 63% of the persons in New York City receiving methadone maintenance in public programs—i. e., 63% of the 65% of all New York City methadone users who are in such programs27—are black or Hispanic. We do not know, however, how many of these persons ever worked or sought to work for TA. This statistic therefore reveals little if anything about the racial composition of the class of TA job applicants and employees receiving methadone treatment. More particularly, it tells us nothing about the class of otherwise-qualified applicants and employees who have participated in methadone maintenance programs for over a year—the only class improperly excluded by TA's policy under the District Court's analysis. The record demonstrates, in fact, that the figure is virtually irrelevant because a substantial portion of the persons included in it are either unqualified for other reasons—such as the illicit use of drugs and alcohol28—or have received successful assistance in finding jobs with employers other than TA.29 Finally, we have absolutely no data on the 14,000 methadone users in the private programs, leaving open the possibility that the percentage of blacks and Hispanics in the class of methadone users is not significantly greater than the percentage of those minorities in the general population of New York City.30
23
At best, respondents' statistical showing is weak; even if it is capable of establishing a prima facie case of discrimination, it is assuredly rebutted by TA's demonstration that its narcotics rule (and the rule's application to methadone users) is "job related."31 The District Court's express finding that the rule was not motivated by racial animus forecloses any claim in rebuttal that it was merely a pretext for intentional discrimination. 414 F.Supp., at 279. We conclude that respondents failed to prove a violation of Title VII. We therefore must reach the constitutional issue.
III
24
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." The Clause announces a fundamental principle: the State must govern impartially. General rules that apply evenhandedly to all persons within the jurisdiction unquestionably comply with this principle. Only when a governmental unit adopts a rule that has a special impact on less than all the persons subject to its jurisdiction does the question whether this principle is violated arise.
25
In this case, TA's Rule 11(b) places a meaningful restriction on all of its employees and job applicants; in that sense the rule is one of general applicability and satisfies the equal protection principle without further inquiry. The District Court, however, interpreted the rule as applicable to the limited class of persons who regularly use narcotic drugs, including methadone. As so interpreted, we are necessarily confronted with the question whether the rule reflects an impermissible bias against a special class.
26
Respondents have never questioned the validity of a special rule for all users of narcotics. Rather, they originally contended that persons receiving methadone should not be covered by that rule; in other words, they should not be included within a class that is otherwise unobjectionable. Their constitutional claim was that methadone users are entitled to be treated like most other employees and applicants rather than like other users of narcotics. But the District Court's findings unequivocally establish that there are relevant differences between persons using methadone regularly and persons who use no narcotics of any kind.32
27
Respondents no longer question the need, or at least the justification, for special rules for methadone users. Indeed, they vigorously defend the District Court's opinion which expressly held that it would be permissible for TA to have a special rule denying methadone users any employment unless they had been undergoing treatment for at least a year, and another special rule denying even the most senior and reliable methadone users any of the more dangerous jobs in the system.
28
The constitutional defect in TA's employment policies, according to the District Court, is not that TA has special rules for methadone users, but rather that some members of the class should have been exempted from some requirements of the special rules. Left intact by its holding are rules requiring special supervision of methadone users to detect evidence of drug abuse, and excluding them from high-risk employment. Accepting those rules, the District Court nonetheless concluded that employment in nonsensitive jobs could not be denied to methadone users who had progressed satisfactorily with their treatment for one year, and who, when examined individually, satisfied TA's employment criteria. In short, having recognized that disparate treatment of methadone users simply because they are methadone users is permissible—and having excused TA from an across-the-board requirement of individual consideration of such persons—the District Court construed the Equal Protection Clause as requiring TA to adopt additional and more precise special rules for that special class.
29
But any special rule short of total exclusion that TA might adopt is likely to be less precise—and will assuredly be more costly33—than the one that it currently enforces. If eligibility is marked at any intermediate point—whether after one year of treatment or later—the classification will inevitably discriminate between employees or applicants equally or almost equally apt to achieve full recovery.34 Even the District Court's opinion did not rigidly specify one year as a constitutionally mandated measure of the period of treatment that guarantees full recovery from drug addiction.35 The uncertainties associated with the rehabilitation of heroin addicts precluded it from identifying any bright line marking the point at which the risk of regression ends.36 By contrast, the "no drugs" policy now enforced by TA is supported by the legitimate inference that as long as a treatment program (or other drug use) continues, a degree of uncertainty persists.37 Accordingly, an employment policy that postpones eligibility until the treatment program has been completed, rather than accepting an intermediate point on an uncertain line, is rational. It is neither unprincipled nor invidious in the sense that it implies disrespect for the excluded subclass.
30
At its simplest, the District Court's conclusion was that TA's rule is broader than necessary to exclude those methadone users who are not actually qualified to work for TA. We may assume not only that this conclusion is correct but also that it is probably unwise for a large employer like TA to rely on a general rule instead of individualized consideration of every job applicant. But these assumptions concern matters of personnel policy that do not implicate the principle safeguarded by the Equal Protection Clause.38 As the District Court recognized, the special classification created by TA's rule serves the general objectives of safety and efficiency.39 Moreover, the exclusionary line challenged by respondents "is not one which is directed 'against' any individual or category of persons, but rather it represents a policy choice . . . made by that branch of Government vested with the power to make such choices." Marshall v. United States, 414 U.S. 417, 428, 94 S.Ct. 700, 707, 38 L.Ed.2d 618. Because it does not circumscribe a class of persons characterized by some unpopular trait or affiliation, it does not create or reflect any special likelihood of bias on the part of the ruling majority.40 Under these circumstances, it is of no constitutional significance that the degree of rationality is not as great with respect to certain ill-defined subparts of the classification as it is with respect to the classification as a whole. Mathews v. Diaz, 426 U.S. 67, 83-84, 96 S.Ct. 1883, 1893, 48 L.Ed.2d 478.41
31
No matter how unwise it may be for TA to refuse employment to individual car cleaners, track repairmen, or bus drivers simply because they are receiving methadone treatment, the Constitution does not authorize a federal court to interfere in that policy decision. The judgment of the Court of Appeals is
32
Reversed.
33
Mr. Justice POWELL, concurring in part and dissenting in part.
34
The opinion of the Court addresses, and sustains, the policy of the Transit Authority under its Rule 11(b) only insofar as it applies to employees and applicants for employment who "are receiving methadone treatment " (emphasis supplied). Ante, at 572-573, n. 3, and ante, this page. I concur in the opinion of the Court holding that there is no violation of the Equal Protection Clause or Title VII when the Authority's policy is applied to employees or applicants who are currently on methadone.
35
But in my view the question presented by the record and opinions of the courts below is not limited to the effect of the rule on present methadone users. Indeed, I had thought it conceded by all concerned that the Transit Authority's policy of exclusion extended beyond the literal language of Rule 11(b) to persons currently free of methadone use but who had been on the drug within the previous five years. The District Court was unsure whether all past users were excluded but indicated that the policy of exclusion covered at least persons who had been free of methadone use for less than five years. 399 F.Supp. 1032, 1036 (SDNY 1975).1 The Court of Appeals for the Second Circuit was unequivocal. It understood that the rule constituted a "blanket exclusion from employment of all persons participating in or having successfully concluded methadone maintenance programs." 558 F.2d 97, 99 (1977).
36
Petitioners' brief in this Court states, in effect, that the Authority will consider only applicants for employment who have been free of a drug problem for "at least five years":
37
"[T]he Authority will give individual consideration to people with a past history of drug addiction including those who have completed either a drug free or a methadone maintenance program, and who have been completely drug free and have had a stable history for at least five years." Brief for Petitioners 5.
38
There was a similar recognition of the Authority's policy in the petition for a writ of certiorari.2
39
Despite this unanimity among the parties and courts below as to the question presented, the Court today simply chooses to limit its decision to the policy with respect to employees and applicants currently receiving methadone treatment. The explanation given is that "neither the findings of fact, nor the record evidence, squarely presents any issue with respect to former users that must be resolved in order to dispose of this litigation." Ante, at 572-573, n. 3. But the only support the Court cites for this statement is a lack of proof as to the policy's actual application. In light of the express admission of the Transit Authority to the District Court that the policy extended to at least some former users,3 evidence of the past application of the policy was irrelevant to the fashioning of prospective relief.4
40
I conclude that the Court has decided only a portion of the case presented, and has failed to address what it recognizes as the more difficult issue. Ante, at 572-573, n. 3, 581-592, and n. 37. We owe it to the parties to resolve all issues properly presented, rather than to afford no guidance whatever as to whether former drug and methadone users may be excluded from employment by the Authority. I agree with the courts below that there is no rational basis for an absolute bar against the employment of persons who have completed successfully a methadone maintenance program and who otherwise are qualified for employment. See Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 950, 59 L.Ed.2d 171 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 40, 93 S.Ct. 1278, 1300, 36 L.Ed.2d 16 (1973). I therefore would affirm the judgment below with respect to the class of persons who are former methadone users.
41
Mr. Justice BRENNAN, dissenting.
42
I would affirm for the reasons stated in Part I of Mr. Justice WHITE's dissenting opinion.
43
Mr. Justice WHITE, with whom Mr. Justice MARSHALL joins, dissenting.
44
Although the Court purports to apply settled principles to unique facts, the result reached does not square with either Title VII or the Equal Protection Clause. Accordingly, but respectfully, I dissent.
45
* As an initial matter, the Court is unwise in failing to remand the statutory claims to the Court of Appeals. The District Court decided the Title VII issue only because it provided a basis for allowing attorney's fees. 414 F.Supp. 277, 278 (SDNY 1976). The Court of Appeals did not deal with Title VII, relying instead on the intervening passage of the Civil Rights Attorney's Fees Awards Act of 1976,1 which authorized the award of fees for success on the equal protection claim today held infirm by the Court. 558 F.2d 97, 99-100 (CA2 1977). In such circumstances, on finding that we disagree with the judgment of the Court of Appeals as to the constitutional question, we would usually remand the unexplored alternative basis for relief.2 E. g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1978). And see Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 271, 97 S.Ct. 555, 566, 50 L.Ed.2d 450 (1977), which involved nearly identical circumstances. That course would obviate the need for us to deal with what the Court considers to be a factual issue or at least would provide assistance in analyzing the issue.
46
Because the Court has decided the question, however, I must express my reservations about the merits of that decision. In a disparate-impact hiring case such as this, the plaintiff must show that the challenged practice excludes members of a protected group in numbers disproportionate to their incidence in the pool of potential employees.3 Respondents made out a sufficient, though not strong, prima facie case by proving that about 63% of those using methadone in the New York City area are black or Hispanic and that only about 20% of the relevant population as a whole belongs to one of those groups.4 I think it fair to conclude, as the District Court must have, that blacks and Hispanics suffer three times as much from the operation of the challenged rule excluding methadone users as one would expect from a neutral practice. Thus, excluding those who are or have been in methadone programs "operate[s] to render ineligible a markedly disproportionate number" of blacks and Hispanics. Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 852, 28 L.Ed.2d 158 (1971).
47
In response to this, the Court says that the 63% statistic was not limited to those who worked for or sought to work for petitioners and to those who have been successfully maintained on methadone, and that it does not include those in private clinics. Ante, at 584-586. I suggest, in the first place, that these attacks on facially valid statistics should have been made in the District Court and the Court of Appeals, see Dothard v. Rawlinson, 433 U.S. 321, 331, 97 S.Ct. 2720, 2728, 53 L.Ed.2d 786 (1977); the first contention was not even made in this Court. It also seems to me that petitioners have little to complain about insofar as the makeup of the applicant pool is concerned since they refused on grounds of irrelevancy to allow discovery of the racial background of the applicants denied employment pursuant to the methadone rule.
48
In any event, I cannot agree with the Court's assertions that this evidence "reveals little if anything," "tells us nothing," and is "virtually irrelevant." Ante, at 585-586.5 There is not a shadow of doubt that methadone users do apply for employment with petitioners, and because 63% of all methadone users are black or Hispanic, there is every reason to conclude that a majority of methadone users who apply are also from these minority groups. Almost 5% of all applicants are rejected due to the rule, and undoubtedly many black and Hispanic methadone users are among those rejected. Why would proportionally fewer of them than whites secure work with petitioners absent the challenged practice? The Court gives no reason whatsoever for rejecting this sensible inference, and where the inference depends so much on local knowledge, I would accept the judgment of the District Court rather than purport to make an independent judgment from the banks of the Potomac. At the very least, as I have said, I would seek the views of the Court of Appeals.
49
The Court complains that even if minority groups make up 63% of methadone-user applicants this statistic is an insufficient indicator of the composition of the group found by the District Court to have been wrongly excluded—that is, those who have been successfully maintained for a year or more. I cannot, however, presume with the Court that blacks or Hispanics will be less likely than whites to succeed on methadone. I would have thought the presumption, until rebutted, would be one of an equal chance of success, and there has been no rebuttal.
50
Finally, as to the racial composition of the patients at private clinics, I note first that the District Court found that "[b]etween 62% and 65% of methadone maintained persons in New York City are black and Hispanic . . .." 414 F.Supp., at 279. The finding was for the total population, not just for public clinics. Even assuming that the Court wishes to overturn this finding of fact as clearly erroneous, I see no support for doing so. The evidence from the Methadone Information Center at Rockefeller University indicated that 61% of all patients in the metropolitan area were black or Puerto Rican (with 5.85% undefined). This was based on a 1,400-patient sample, which, according to the Center, "was drawn on a random basis and very accurately reflects the total population for Metropolitan New York City" (emphasis supplied). There is no reason to believe that this study, which in its reporting of the total number of patients of all races included both public and private clinics, did not include private programs in its racial-composition figures.6 And even if everyone in the private clinics were white, a highly unlikely assumption at best,7 the challenged rule would still automatically exclude a substantially greater number of blacks and Hispanics than would a practice with a racially neutral effect.
51
With all due respect, I would accept the statistics as making a prima facie case of disparate impact. Obviously, the case could have been stronger, but this Court is unjustified in displacing the District Court's acceptance of uncontradicted, relevant evidence. Perhaps sensing that, the Court goes on to say that if such a prima facie showing was made it was rebutted by the fact that the rule is "job related."
52
Petitioners had the burden of showing job relatedness. They did not show that the rule results in a higher quality labor force, that such a labor force is necessary, or that the cost of making individual decisions about those on methadone was prohibitive. Indeed, as shown in the equal protection discussion infra, petitioners have not come close to showing that the present rule is "demonstrably a reasonable measure of job performance." Griggs, 401 U.S., at 436, 91 S.Ct., at 856. No one could reasonably argue petitioners have made the kind of showing demanded by Griggs or Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). By petitioners' own stipulation, see n. 14, infra, this employment barrier was adopted "without meaningful study of [its] relationship to job-performance ability." Griggs, supra, 401 U.S., at 431, 91 S.Ct., at 853. As we stated in Washington v. Davis, 426 U.S. 229, 247, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976), Title VII "involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution . . . ." Therefore, unlike the majority, ante, at 587, n. 31, I think it insufficient that the rule as a whole has some relationship to employment so long as a readily identifiable and severable part of it does not.
II
53
I also disagree with the Court's disposition of the equal protection claim in light of the facts established below. The District Court found that the evidence conclusively established that petitioners exclude from employment all persons who are successfully on methadone maintenance—that is, those who after one year are "free of the use of heroin, other illicit drugs, and problem drinking," 399 F.Supp. 1032, 1047 (SDNY 1975) and those who have graduated from methadone programs and remain drug free for less than five years;8 that past or present successful methadone maintenance is not a meaningful predictor of poor performance or conduct in most job categories; that petitioners could use their normal employee-screening mechanisms to separate the successfully maintained users from the unsuccessful; and that petitioners do exactly that for other groups that common sense indicates might also be suspect employees.9 Petitioners did not challenge these factual conclusions in the Court of Appeals, but that court nonetheless reviewed the evidence and found that it overwhelmingly supported the District Court's findings. 558 F.2d, at 99. It bears repeating, then, that both the District Court and the Court of Appeals found that those who have been maintained on methadone for at least a year and who are free from the use of illicit drugs and alcohol can easily be identified through normal personnel procedures and, for a great many jobs, are as employable as and present no more risk than applicants from the general population.
54
Though petitioners' argument here is primarily an attack upon the factfinding below, the Court does not directly accept that thesis. Instead, it concludes that the District Court and the Court of Appeals both misapplied the Equal Protection Clause. On the facts as found, however, one can reach the Court's result only if that Clause imposes no real constraint at all in this situation.
55
The question before us is the rationality of placing successfully maintained or recently cured persons in the same category as those just attempting to escape heroin addiction or who have failed to escape it, rather than in with the general population.10 The asserted justification for the challenged classification is the objective of a capable and reliable work force, and thus the characteristic in question is employability. "Employability," in this regard, does not mean that any particular applicant, much less every member of a given group of applicants, will turn out to be a model worker. Nor does it mean that no such applicant will ever become or be discovered to be a malingerer, thief, alcoholic, or even heroin addict. All employers take such risks. Employability, as the District Court used it in reference to successfully maintained methadone users, means only that the employer is no more likely to find a member of that group to be an unsatisfactory employee than he would an employee chosen from the general population.
56
Petitioners had every opportunity, but presented nothing to negative the employability of successfully maintained methadone users as distinguished from those who were unsuccessful. Instead, petitioners, like the Court, dwell on the methadone failures—those who quit the programs or who remain but turn to illicit drug use. The Court, for instance, makes much of the drug use of many of those in methadone programs, including those who have been in such programs for more than one year. Ante, at 576, and n. 10. But this has little force since those persons are not "successful," can be and have been identified as such, see ante, at 574-575,11 and, despite the Court's efforts to put them there, see ante, at 590 n. 33, are not within the protection of the District Court's injunction. That 20% to 30% are unsuccessful after one year in a methadone program tells us nothing about the employability of the successful group, and it is the latter category of applicants that the District Court and the Court of Appeals held to be unconstitutionally burdened by the blanket rule disqualifying them from employment.
57
The District Court and the Court of Appeals were therefore fully justified in finding that petitioners could not reasonably have concluded that the protected group is less employable than the general population and that excluding it "[has] no rational relation to the demands of the jobs to be performed."12 399 F.Supp., at 1057. In fact, the Court assumes that petitioners' policy is unnecessarily broad in excluding the successfully maintained and the recently cured, ante, at 592, and that a member of that group can be selected with adequate precision. Ante, at 574-575. Despite this, the validity of the exclusion is upheld on the rational basis of the uninvolved portion of the rule, that is, that the rule excludes many who are less employable. But petitioners must justify the distinction between groups, not just the policy to which they have attached the classification. The purpose of the rule as a whole is relevant only if the classification within the rule serves the purpose, but the majority's assumption admits that is not so.
58
Justification of the blanket exclusion is not furthered by the statement that "any special rule short of total exclusion . . . is likely to be less precise" than the current rule. Ante, at 590. If the rule were narrowed as the District Court ordered, it would operate more precisely in at least one respect, for many employable persons would no longer be excluded. Nor does the current rule provide a "bright line," for there is nothing magic about the point five years after treatment has ended. There is a risk of "regression" among those who have never used methadone, and the Court cannot overcome the District Court's finding that a readily ascertainable point exists at which the risk has so decreased that the maintained or recently cured person is generally as employable as anyone else.13
59
Of course, the District Court's order permitting total exclusion of all methadone users maintained for less than one year, whether successfully or not, would still exclude some employables and would to this extent be overinclusive. "Overinclusiveness" as to the primary objective of employability is accepted for less successful methadone users because it fulfills a secondary purpose and thus is not "overinclusive" at all. See Vance v. Bradley, 440 U.S. 93, 109, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979). Although many of those who have not been successfully maintained for a year are employable, as a class they, unlike the protected group, are not as employable as the general population. Thus, even assuming the bad risks could be identified, serving the end of employability would require unusual efforts to determine those more likely to revert. But that legitimate secondary goal is not fulfilled by excluding the protected class: The District Court found that the fact of successful participation for one year could be discovered through petitioners' normal screening process without additional effort and, I repeat, that those who meet that criterion are no more likely than the average applicant to turn out to be poor employees.14 Accordingly, the rule's classification of successfully maintained persons as dispositively different from the general population is left without any justification and, with its irrationality and invidiousness thus uncovered, must fall before the Equal Protection Clause.15
60
Finally, even were the District Court wrong, and even were successfully maintained persons marginally less employable than the average applicant,16 the blanket exclusion of only these people, when but a few are actually unemployable and when many other groups have varying numbers of unemployable members, is arbitrary and unconstitutional. Many persons now suffer from or may again suffer from some handicap related to employability.17 But petitioners have singled out respondents—unlike ex-offenders, former alcoholics and mental patients, diabetics, epileptics, and those currently using tranquilizers, for example—for sacrifice to this at best ethereal and likely nonexistent risk of increased unemployability. Such an arbitrary assignment of burdens among classes that are similarly situated with respect to the proffered objectives is the type of invidious choice forbidden by the Equal Protection Clause.18
1
This Court's Rule 19 provides:
"Considerations governing review on certiorari
"1. A review on writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered:
* * * * *
"(b) Where a court of appeals . . . has decided a federal question in a way in conflict with applicable decisions of this court; or has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of this court's power of supervision."
2
Thus, about 13,400 employees are involved in the maintenance of subway cars, buses, track, tunnels, and structures. Another 5,600 work in subway stations, and over 2,000 are engaged in office tasks that include the handling of large sums of money. TA hires about 3,000 new employees each year.
3
By its terms, Rule 11(b) does not apply to persons who formerly used methadone or any other drug, and the District Court did not find that TA had any general policy covering former users. On the contrary, the court found that "[t]he situation is not entirely clear with respect to the policy of the TA regarding persons who have successfully concluded participation in a methadone program." 399 F.Supp., at 1036.
Although it did not settle the question of what policy TA enforces in this respect, the District Court included former users in the plaintiff class. It then afforded them relief from any blanket exclusionary policy that TA might enforce, although, again, the supporting factual findings were admittedly "not [based on] a great deal" of evidence. Id., at 1051.
TA contends that the meager evidence received at trial on the "former users" issue was insufficient to support either the class or relief determinations made with respect to those persons. We go further. As far as we are aware there was no evidence offered at trial, and certainly none relied upon by the District Court, that TA actually refused employment to any former user entitled to relief under the injunction ordered by that court. (As we point out in n. 12, infra, the one named plaintiff, Frasier, who was a former user when the complaint was filed was clearly a current user at the time he first applied for a job with TA and may well have been properly perceived as a current user when he next applied, notwithstanding his assertion of successful completion during the intervening three weeks. In any case, he had not completed a full year of methadone maintenance and could therefore be excluded under the District Court's injunction.)
It follows that neither the findings of fact, nor the record evidence, squarely presents any issue with respect to former users that must be resolved in order to dispose of this litigation. And, of course, it is those findings and that evidence, rather than statements of the parties on appeal and even off-hand and clearly erroneous characterizations of the findings and evidence by the Court of Appeals, see opinion of Mr. Justice Powell, post, at 594-595, that determine the issues properly before this Court. A policy excluding all former users would be harder to justify than a policy applicable only to persons currently receiving treatment. A court should not reach out to express an opinion on the constitutionality of such a policy unless necessary to adjudicate a concrete dispute between adverse litigants. We shall therefore confine our consideration to the legality of TA's enforcement of its Rule 11(b) against current users of methadone.
4
"Heroin is a narcotic which is generally injected into the bloodstream by a needle. It is a central nervous system depressant. The usual effect is to create a 'high'—euphoria, drowsiness—for about thirty minutes, which then tapers off over a period of about three or four hours. At the end of this time the heroin user experiences sickness and discomfort known as 'withdrawal symptoms.' There is intense craving for another shot of heroin, after which the cycle starts over again. A typical addict will inject heroin several times a day." 399 F.Supp., at 1038.
5
The District Court found that detoxification is accomplished "by switching a heroin addict to methadone and gradually reducing the doses of methadone to zero over a period of about three weeks. The patient thus detoxified is drug free. Moreover, it is hoped that the program of gradually reduced doses of methadone leaves him without the withdrawal symptoms, or the 'physical dependence' on a narcotic." Ibid.
6
"The five major public or semi-public methadone maintenance programs in New York City are:
"(1) The Beth Israel program . . . with 35 clinics treating 7100 patients;
"(2) A program administered by the City of New York with 39 clinics treating 12,400 patients (hereafter referred to as 'the City program');
"(3) A program administered by the Bronx State Hospital and the Albert Einstein College of Medicine, with 7 clinics treating about 2400 patients;
"(4) A program operated by the Addiction Research and Treatment Center (ARTC) with 6 clinics treating about 1200 patients; and
"(5) A program operated by the New York State Drug Abuse Control Commission (DACC), with 8 clinics treating about 1100 patients.
"The total number of patients treated in public or semi-public programs is about 26,000. It appears that these programs are financed almost entirely by federal, state and city funds." Id., at 1040.
7
"[V]ery little specific information was provided [at trial] regarding the private clinics." Id., at 1046. What evidence there was indicated that those clinics were likely to be less successful and less able to provide accurate information about their clients than the public clinics. Id., at 1046, 1050.
8
Although the United States Food and Drug Administration has also issued regulations in this area, 21 CFR §§ 291.501, 291.505 (1978), the New York State regulations are as or more stringent and thus effectively set the relevant standards for the authorized methadone maintenance programs involved in this case. Under those regulations, in-clinic ingestion of methadone must be observed by staff members, 14 NYCRR § 2021.13(b) (1976), and must occur with a frequency of six days a week during the first three months, no less than three days a week thereafter through the second year of treatment, and two days a week thereafter. § 2021.13(c)(1). Tests are required to prevent hoarding of take-home doses, excessive use of methadone, and illicit use of other drugs or alcohol, any of which, if found, can result in increased clinic-visit frequency or in separation from the program. §§ 2021.13(c)(2), 2021.13(g). The programs are also required to include "a comprehensive range of rehabilitative services on-site under professional supervision," § 2021.13(e), although participation in many of these services is voluntary and irregular.
9
"I conclude from all the evidence that the strong majority of methadone maintained persons are successful, at least after the initial period of adjustment, in keeping themselves free of the use of heroin, other illicit drugs, and problem drinking." 399 F.Supp., at 1047.
10
Thus, for example:
"Dr. Trigg of Beth Israel testified that 5,000 out of the 6,500-7,000 patients in his clinics have been on methadone maintenance for a year or more. He further testified that 75% of this 5,000 are free from illicit drug use." Id., at 1046.
Similarly, although the figures may be somewhat higher for the city and Bronx State Hospital programs, only 70% of the ARTC patients with a year's tenure or more were found to be free from illicit drug or alcohol use. It is reasonable to infer from this evidence that anywhere from 20% to 30% of those who have been on maintenance for over a year have drug or alcohol problems.
11
Respondent Beazer was dismissed in November 1971 when his heroin addiction became known to TA and shortly after he had enrolled in a methadone maintenance program; he successfully terminated his treatment in November 1973. Respondent Reyes began his methadone treatment in 1971 and was dismissed by TA in 1972. At the time of trial, in 1975, he was still participating in a methadone program.
12
Respondent Frasier was on methadone maintenance for only five months, from October 1972 until March 1973. TA refused to employ him as a bus operator in March 1973 and as a bus cleaner in April 1973. Frasier did not participate in a methadone program for even half a year. Moreover, he tested positively for methadone use at the time of his March application and only a few weeks before his April application was rejected under Rule 11(b). See 399 F.Supp., at 1034; App. 32A. Under these circumstances, the District Court's characterization of Frasier as a "former" user at the time he applied, and its inclusion of Frasier in the group of "tenured" methadone users for whom it felt relief was appropriate under the Equal Protection Clause, see n. 32, infra, are without apparent justification.
13
Respondent Diaz entered a methadone maintenance program in December 1968 and was still receiving treatment at the time of trial. He was refused employment as a maintenance helper in 1970.
14
The District Court summarized the testimony concerning one of the largest and most successful public programs:
"The witnesses from the Beth Israel program testified that about one-third of the patients in that program, after a short period of adjustment, need very little more than the doses of methadone. The persons in this category are situated fairly satisfactorily with respect to matters such as family ties, education and jobs. Another one-third of the patients at Beth Israel need a moderate amount of rehabilitation service, including vocational assistance, for a period of several months or about a year. A person in this category may, for instance, have finished high school, but may have a long heroin history and no employment record. A final one-third of the patients at Beth Israel need intensive supportive services, are performing in the program marginally, and either will be discharged or will be on the brink of discharge." 399 F.Supp., at 1048.
15
The Court of Appeals reversed the District Court on one issue relating to relief. The lower court had denied reinstatement and backpay relief to two of the four named plaintiffs because they admitted having violated TA's unquestionably valid rule against taking heroin while being in TA's employ. App. to Pet. for Cert. 77a-78a. The Court of Appeals, reversed. It determined that the two plaintiffs' former heroin use and violation of TA's rules on that account were irrelevant because TA explicitly premised their firing exclusively on their use of methadone. 558 F.2d, at 101.
16
Section 504 of the Rehabilitation Act, 87 Stat. 394, as set forth in 29 U.S.C. § 794, provides:
"No otherwise qualified handicapped individual in the United States, as defined in section 706(6) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
It is stipulated that the TA receives federal financial assistance.
In relevant part, § 7(6) of the Act, 29 U.S.C. § 706(6), as amended, and redesignated, 92 Stat. 2984, 29 U.S.C. § 706(7)(B) (1976 ed., Supp. III), provides:
"[T]he term 'handicapped individual' . . . means any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. For purposes of sections 503 and 504 as such sections relate to employment, such term does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others."
17
The question whether a cause of action on behalf of handicapped persons may be implied under § 504 of the Rehabilitation Act will be addressed by this Court in Southeastern Community College v. Davis, No. 78-711, cert. granted 439 U.S. 1065, 99 S.Ct. 830, 59 L.Ed.2d 30.
18
The latest act of alleged discrimination cited in respondents' complaint occurred in April 1973, while the Act was passed on September 26, 1973, Pub.L. 93-112, Title V, and the amendment to § 7(6) went into effect on November 6, 1978.
19
See n. 17, supra.
20
In order for the District Court's findings to bring the respondent class conclusively within the Act, we would have to find that denying employment to a methadone user because of that use amounts to excluding an "otherwise qualified handicapped individual . . . solely by reason of his handicap." Among other issues, this would require us to determine (1) whether heroin addicts or current methadone users qualify as "handicapped individual[s]"—i. e., whether that addiction or use is (or is perceived as) a "physical . . . impairment which substantially limits one or more . . . major life activities"; (2) whether methadone use prevents the individual "from performing the duties of the job" or "would constitute a direct threat to property or the safety of others"; and (3) whether the members of the respondent class are "otherwise qualified"—the meaning of which phrase is at issue in Southeastern Community College v. Davis, supra.
21
See n. 1, supra, and accompanying text. Respondents may exaggerate the degree to which the recent amendment altered the law as it existed when we granted certiorari. Even before the Court of Appeals heard argument in this case, in fact, the Attorney General of the United States had issued an interpretation of the Act as it then existed which concluded that the Act "does in general prohibit discrimination against alcoholics and drug addicts in federally-assisted programs . . .. " Opinion of the Honorable Griffin B. Bell, Attorney General of the United States, to the Honorable Joseph A. Califano, Secretary, Department of Health, Education, and Welfare, Apr. 12, 1977. Respondents brought this interpretation to our attention before we granted certiorari. App. to Brief in Opposition A5-A6.
22
"From Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436, to Alma Motor Co. v. Timken-Detroit Axle Co. [, 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128,] and the Hatch Act case [, United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754,] decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const. Art. III. . . .
"The policy, however, has not been limited to jurisdictional determinations. For, in addition, 'the Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.' Thus, as those rules were listed in support of the statement quoted, constitutional issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance of one who fails to show that he is injured by the statute's operation, or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided." Rescue Army v. Municipal Court, 331 U.S. 549, 568-569, 67 S.Ct. 1409, 1419-20, 91 L.Ed. 1666 (footnotes omitted), quoting Ashwander v. TVA, 297 U.S. 288, 346, 6 S.Ct. 466, 482, 80 L.Ed. 688 (Brandeis, J., concurring).
23
Respondents suggest that the lower courts properly reached the constitutional issue first because only under the Equal Protection Clause could all of the class members, including white methadone users (who presumably do not have standing in this case under Title VII or § 1981) obtain all of the relief including backpay, sought in their complaint. In addition, they point to TA's argument that Title VII and § 1981 are unconstitutional insofar as they authorize relief against a state subdivision without any direct allegation or proof of intentional discrimination. Cf. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614; National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245; Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597; Fry v. United States, 421 U.S. 542, 95 S.Ct. 1792, 44 L.Ed.2d 363; Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828. Under this latter point, it is argued that the District Court quite properly decided to address the constitutionality of a municipal agency's hiring practices before addressing the constitutionality of two Acts of Congress.
Whatever the theoretical validity of respondents' explanations for the actions of the District Court and the Court of Appeals, the fact remains that we are forced to speculate about what motivated them because they never explained their haste to address a naked constitutional issue despite the presence in the case of alternative statutory theories. It also bears noting that in its second opinion the District Court did decide that TA's policy violated a federal statute, and its decision, without addressing any constitutional issue provided a statutory basis for virtually all of the relief that it ultimately awarded. Had it confronted the issue, therefore, it presumably would have concluded that it could have decided the case without addressing the constitutional issue on which it initially decided the case.
24
The failure of the Court of Appeals to address the statutory issue decided by the District Court does not, of course, prevent this Court from reaching the issue. Cf. University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750. We conclude that it is appropriate to reach the issue in this case, rather than remand it to the Court of Appeals, because it was fully aired before the District Court, it involves the application of settled legal principles to uncontroversial facts, and it has been carefully briefed in this Court without any of the parties' even suggesting the possibility of a remand.
Moreover, our treatment of the Title VII claim also disposes of the § 1981 claim without need of a remand. Although the exact applicability of that provision has not been decided by this Court, it seems clear that it affords no greater substantive protection than Title VII.
25
"Statistics are . . . competent in proving employment discrimination. We caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all the surrounding facts and circumstances." Teamsters v. United States, 431 U.S. 324, 339-340, 97 S.Ct. 1843, 1857, 52 L.Ed.2d 396 (footnote omitted).
From the time they filed their complaint until their submissions to this Court, respondents have relied on statistics to demonstrate the discriminatory effect of TA's methadone policy. They have never attempted to present a discriminatory purpose case and would be hard pressed to do so in the face of the District Court's explicit finding that no animus motivated TA in establishing its policy, 414 F.Supp. 277, 279 (SDNY 1976), and in the face of TA's demonstration in forms filed with the Equal Employment Opportunity Commission that the percentage of blacks and Hispanics in its work force is well over twice that of the percentage in the work force in the New York metropolitan area.
Because of our conclusion on the merits of respondents' Title VII claim, we need not address the constitutional challenge made by TA to Title VII insofar as it authorizes relief against a municipal agency under the circumstances of this case. See n. 23, supra.
26
Indeed, it is probable that none of the employees comprising this 81% were methadone users. The parties stipulated that:
"TA employees showing physical manifestations of drug abuse other than the definite presence of morphine or methadone or other illicit drug in the urine, are referred for consultation to [the medical director] . . .." App. 86A (emphasis added).
In view of this stipulation and the District Court's finding that few if any physical manifestations of drug abuse characterize methadone-maintained persons, 399 F.Supp., at 1042-1045, it seems likely that such persons would not be included in the statistical pool referred to by the District Court. It should also be noted that when the dissent refers to the rejection of almost 5% of all applicants "due to the rule," post, at 600, the reference is to all narcotics users rather than to methadone users. The record does not tell us how many methadone users were rejected.
27
The statistic relied upon by the District Court was derived from a study of methadone patients prepared by a researcher at Rockefeller University based upon data supplied by the public methadone clinics in New York City. In that the District Court admittedly received virtually no evidence about the private clinics, their funding, and their participants, see n. 7, supra, there is no basis for assuming that the Rockefeller University statistic is applicable to participants in the private programs.
28
To demonstrate employability, the District Court referred to a study indicating that 34% to 59% of the methadone users who have been in a maintenance program for a substantial period of time are employed. The evidence was inconclusive with respect to all methadone users. 399 F.Supp., at 1047. However, the director of the second largest program in New York City testified that only 33% of the entire methadone-patient population in that program were employable. Tr. 345 (Jan. 10, 1975). On the statistics relating to illicit use of drugs and alcohol, see supra, at 575-576.
29
Although "a statistical showing of disproportionate impact [need not] always be based on an analysis of the characteristics of actual applicants," Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786, "evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants" undermines the significance of such figures. Teamsters v. United States, supra, 431 U.S., at 340 n. 20, 97 S.Ct., at 1857 n. 20.
30
If all of the participants in private clinics are white, for example, then only about 40% of all methadone users would be black or Hispanic—compared to the 36.3% of the total population of New York City that was black or Hispanic as of the 1970 census. Assuming instead that the percentage of those minorities in the private programs duplicates their percentage in the population of New York City, the figures would still only show that 50% of all methadone users are black or Hispanic compared to 36.3% of the population in the metropolitan area. (The 20% figure relied upon by the dissent refers to blacks and Hispanics in the work force, rather than in the total population of the New York City metropolitan area. The reason the total-population figure is the appropriate one is because the 63% figure relied upon by respondents refers to methadone users in the population generally and not just those in the work force.)
31
Respondents recognize, and the findings of the District Court establish, that TA's legitimate employment goals of safety and efficiency require the exclusion of all users of illegal narcotics, barbiturates, and amphetamines, and of a majority of all methadone users. See n. 4, supra; supra, at 575-576, and nn. 9-10; 577, and n. 14; n. 28, supra. The District Court also held that those goals require the exclusion of all methadone users from the 25% of its positions that are "safety sensitive." See supra, at 578. Finally, the District Court noted that those goals are significantly served by—even if they do not require—TA's rule as it applies to all methadone users including those who are seeking employment in nonsafety-sensitive positions. See nn. 33, 37, infra. The record thus demonstrates that TA's rule bears a "manifest relationship to the employment in question." Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280. Whether or not respondents' weak showing was sufficient to establish a prima facie case, it clearly failed to carry respondents' ultimate burden of proving a violation of Title VII.
32
The District Court found that methadone is a narcotic. See 399 F.Supp., at 1038. See also id., at 1044 ("The evidence is that, during the time patients are being brought up to their constant dosage of methadone (a period of about six weeks), there may be complaints of drowsiness, insomnia, excess sweating, constipation, and perhaps some other symptoms"). Moreover, every member of the class of methadone users was formerly addicted to the use of heroin. None is completely cured; otherwise, there would be no continuing need for treatment. All require some measure of special supervision, and all must structure their weekly routines around mandatory appearances at methadone clinics. The clinics make periodic checks as long as the treatment continues in order to detect evidence of drug abuse. Employers must review, and sometimes verify, these checks; since the record indicates that the information supplies by treatment centers is not uniformly reliable, see n. 7, supra, the employer has a special and continuing responsibility to review the condition of these persons.
In addition, a substantial percentage of persons taking methadone will not successfully complete the treatment program. The findings do not indicate with any precision the number who drop out, or the number who can fairly be classified as unemployable, but the evidence indicates that it may well be a majority of those taking methadone at any given time. See nn. 14 and 28, supra.
33
The District Court identified several significant screening procedures that TA would have to adopt specially for methadone users if it abandoned its rule. For example, the court noted that current methadone users (but no other applicants) would have to
"demonstrate that they have been on a reliable methadone program for a year or more; that they have faithfully abided by the rules of the program; [and] that, according to systematic tests and observations, they have been free of any illicit drug or alcohol abuse for the entire period of treatment, excluding a possible adjustment period . . . ." 399 F.Supp., at 1049.
The District Court also recognized that verifying the above demonstrations by the methadone user would require special efforts to obtain reliable information from, and about, each of the many different methadone maintenance clinics—a task that it recognized could be problematic in some cases. Id., at 1050; see n. 7, supra. Furthermore, once it hired a methadone user, TA would have a continuing duty to monitor his progress in the maintenance program and would have to take special precautions against his promotion to any of the safety-sensitive positions from which the District Court held he may be excluded.
The dissent is therefore repeatedly mistaken in attributing to the District Court a finding that TA's "normal screening process without additional effort" would suffice in the absence of the "no drugs" rule. Post, at 608. See post, at 608 n. 14. Aggravating this erroneous factual assumption is a mistaken legal proposition advanced by the dissent—that TA can be faulted for failing to prove the unemployability of "successfully maintained methadone users." Post, at 605. Aside from the misallocation of the burden of proof that underlies this argument, it is important to note, see post, at 606, that TA did prove that 20% to 30% of the class afforded relief by the District Court are not "successfully maintained," and hence are assuredly not employable. Even assuming therefore that the percentage of employable persons in the remaining 70% is the same as that in the class of TA applicants who do not use methadone, it is respondents who must be faulted for failing to prove that the offending 30% could be excluded as cheaply and effectively in the absence of the rule.
34
It may well be, in fact, that many methadone users who have been in programs for something less than a year are actually more qualified for employment than many others who have been in a program for longer than a year.
35
"The TA is not prevented from making reasonable rules and regulations about methadone maintained persons—such as requiring satisfactory performance in a program for a period of time such as a year . . . ." 399 F.Supp., at 1058.
36
These uncertainties are evident not only in the District Court's findings but also in legislative consideration of the problem. See Marshall v. United States, 414 U.S. 417, 425-427, 94 S.Ct. 700, 705-706, 38 L.Ed.2d 618.
37
The completion of the program also marks the point at which the employee or applicant considers himself cured of drug dependence. Moreover, it is the point at which the employee/applicant no longer must must make regular visits to a methadone clinic, no longer has access to free methadone that might be hoarded and taken in excessive and physically disruptive doses, and at which a simple urine test—as opposed to a urine test followed up by efforts to verify the bona fides of the subject's participation in a methadone program, and of the program itself suffices to prove compliance with TA's rules.
Respondents argue that the validity of these considerations is belied by TA's treatment of alcoholics. Although TA refuses to hire new employees with drinking problems, it continues in its employ a large number of persons who have either been found drinking on the job or have been deemed unfit for duty because of prior drinking. These situations give rise to discipline but are handled on an individual basis. But the fact that TA has the resources to expend on one class of problem employees does not by itself establish a constitutional duty on its part to come up with resources to spend on all classes of problem employees.
38
The District Court also concluded that TA's rule violates the Due Process Clause because it creates an "irrebuttable presumption" of unemployability on the part of methadone users. 399 F.Supp., at 1057. Respondents do not rely on the due process argument in this Court, and we find no merit in it.
39
"[L]egislative classifications are valid unless they bear no rational relationship to the State's objectives. Massachusetts Bd. of Retirement v. Murgia, [427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520]. State legislation 'does not violate the Equal Protection Clause merely because the classifications [it makes] are imperfect.' Dandridge v. Williams, 397 U.S. 471, 485 [90 S.Ct. 1153, 1161, 25 L.Ed.2d 491.]" Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 501-502, 99 S.Ct. 740, 762, 58 L.Ed.2d 740. See also Vance v. Bradley, 440 U.S. 93, 108, 99 S.Ct. 939, 948, 59 L.Ed.2d 171, quoting Phillips Chemical Co. v. Dumas School District, 361 U.S. 376, 385, 80 S.Ct. 474, 480, 4 L.Ed.2d 384 ("Even if the classification involved here is to some extent both underinclusive and overinclusive, and hence the line drawn by Congress imperfect, it is nevertheless the rule that in a case like this 'perfection is by no means required' ").
40
Since Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923, the Court's equal protection cases have recognized a distinction between "invidious discrimination," id., at 30, 5 S.Ct., at 359—i. e., classifications drawn "with an evil eye and an unequal hand" or motivated by "a feeling of antipathy" against, a specific group of residents, Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220; Soon Hing v. Crowley, 113 U.S. 703, 710, 5 S.Ct. 730, 734, 28 L.Ed. 1145; see also Quong Wing v. Kirkendall, 223 U.S. 59, 32 S.Ct. 192, 56 L.Ed. 350; Holden v. Hardy, 169 U.S. 366, 398, 18 S.Ct. 383, 390, 42 L.Ed. 780—and those special rules that "are often necessary for general benefits [such as] supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects." Barbier, supra, 113 U.S., at 31, 5 S.Ct., at 360. See also Washington v. Davis, 426 U.S. 229, 239-241, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597. Quite plainly, TA's Rule 11(b) was motivated by TA's interest in operating a safe and efficient transportation system rather than by any special animus against a specific group of persons. Cf. 414 F.Supp., at 279. Respondents recognize this valid general motivation, as did the District Court, and for that reason neither challenges TA's rule as it applies to all narcotic users, or even to all methadone users. Because respondents merely challenge the rule insofar as it applies to some methadone users that challenge does not even raise the question whether the rule falls on the "invidious" side of the Barbier distinction. Accordingly, there is nothing to give rise to a presumption of illegality and to warrant our especially "attentive judgment." Cf. Truax v. Corrigan, 257 U.S. 312, 327, 42 S.Ct. 124, 127, 66 L.Ed. 254.
41
"When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark." Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (Holmes, J., dissenting).
1
The District Court also noted that the Authority "contends that it cannot afford to take what it considers the risks of employing present or past methadone maintained persons, except possibly those who have been successfully withdrawn from methadone for several years." 399 F.Supp., at 1052 (emphasis supplied).
2
In petitioners' statement of the case the affected class was said to include former addicts "who are participants in or have completed a methadone maintenance program." Pet. for Cert. 4 (emphasis supplied).
The brief for respondents similarly described the Transit Authority's policy:
"The Transit Authority's blanket denial of employment to fully rehabilitated heroin addicts who are being or ever have been treated in methadone maintenance programs violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment." Brief for Respondents 59.
3
See, e. g., 3 Court of Appeals, Joint App. in No. 76-7295, pp. 1106a-1112a.
4
The Court seems to imply that because the Transit Authority's policy with respect to former methadone users had not been invoked against any of the named plaintiffs, it was improper for the District Court to certify a class of former users who would be affected by the policy. Ante, at 572-573, n. 3, 576-577, n. 12. Even if one were to consider it proper for this Court to disregard the District Court's explicit finding that plaintiff Frasier "was rejected because of his former methadone use," 399 F.Supp., at 1034 (emphasis supplied), the Court overlooks the further finding:
"[I]t is unquestioned that there are many methadone maintenance patients who successfully withdraw from methadone and stay clear of drug abuse thereafter. Plaintiff Beazer is such a person, having ceased using methadone almost two years ago.
"There is no rational reason for maintaining an absolute bar against the employment of these persons regardless of their individual merits." Id., at 1051.
It is clear that Beazer both was a proper representative of the class of former users and was interested in Transit Authority employment, inasmuch as reinstatement was part of the relief he sought. In light of the Transit Authority's unequivocal policy of not employing persons in Beazer's position, it was unnecessary for him to engage in the futile ritual of reapplying for employment after terminating his methadone use in order to have standing to attack the policy.
1
42 U.S.C. § 1988.
2
The Court finds it inappropriate to remand because the Title VII question "was fully aired before the District Court, . . . involves the application of settled legal principles to uncontroversial facts, and . . . has been carefully briefed in this Court without any of the parties' even suggesting the possibility of a remand." Ante, at 583-584, n. 24. The Court is able to overturn the Title VII judgment below, however, only after reversing some of the District Court's key findings of fact, which the parties strongly contest, on grounds that were not aired at all in the District Court or the Court of Appeals. See n. 4, infra, and infra, at 600 and n. 6.
3
See ante, at 584; Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed. 786 (1977). The failure to hire is not "because of" race, color, religion, sex, or national origin if the adverse relationship of the challenged practice to one of those factors is purely a matter of chance—a statistical coincidence. See Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971); Civil Rights Act of 1964, § 703(a), 42 U.S.C. § 2000e-2(a). Beyond the statistically significant relationship between race and participation in methadone programs shown by the figures here, respondents introduced direct evidence that the high frequency of minorities among the disqualified group was not just a chance aberration. See nn. 7 and 15, infra.
4
The Court asserts that the proper percentage is 36.3. Respondents relied upon the 1970 census figures for the New York Standard Metropolitan Statistical Area work force: 15.0% black and 5.1% Hispanic. Petitioners accept the 20% figure. Brief for Petitioners 53. And the District Court apparently did so also. No matter which figure is correct, there is still a disparate impact.
5
The Court quotes Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 1857 n. 20, 52 L.Ed.2d 396 (1977), to the effect that " 'evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants' undermines the significance of such figures." Ante, at 586, n. 29. Petitioners have not put on such "evidence"; we have only the Court's hypotheses, facially unlikely ones at that. Under the Federal Rules of Evidence, to be admissibly relevant, evidence must only tend to establish a material fact. This evidence does that, and by definition unrebutted probative evidence on the material fact is sufficient to make out a prima facie case.
6
Petitioners suggest that the evidence did not include private clinics since the Center does not receive information from them. Had this objection been raised in the District Court as it should have been, respondents would have had the opportunity to remove any doubt about whether the evidence included private programs. Moreover, in support of their suggestion, petitioners rely upon two isolated statements that do not directly discuss the study in question. Dr. Lukoff testified that the private clinics report to the FDA but not to the "Rockefeller Institute register," and he estimated that there were about 1,500 patients in such unreporting clinics. Tr. 252 (Jan. 9, 1975) (emphasis supplied). Dr. Dole, a professor at Rockefeller University and senior physician at the University Hospital, testified that "the methadone data center . . . maintains the computerized inventory on all 40,000 patients in treatment" and that "[a]ll of the known programs report, I presume." Id., at 114 (Jan. 7, 1975) (emphasis supplied). He did testify that "[t]he most detailed documentation comes from the major public" programs, which "comprise about 25,000 out of the 40,000" methadone patients. As to the remaining patients, his program still had "simpl[e] registry information . . . ." Id., at 115-116. In short, the majority's unsupported effort to undermine the District Court's findings of fact merely establishes the wisdom of either remanding or, on the Court's evident assumption that the Court of Appeals would have affirmed the Title VII judgment, abiding by the"two-court rule."
7
The evidence before the District Court established that 80% of heroin addicts in the New York City metropolitan area, the source of clients for both public and private methadone clinics, are black or Hispanic.
8
Because the rule is unwritten in relevant part, there is confusion about its scope. The Court asserts that it does not exclude those who formerly used methadone, and that the District Court "did not settle the question of what policy TA enforces in this respect . . . ." Ante, at 572 n. 3. In fact, however, petitioners openly admit that they automatically exclude former methadone users unless they "have been completely drug free and have had a stable history for at least five years." Brief for Petitioners 5. And I quote the District Court's actual finding which in context is unlike that described by the majority:
"It is clear that a relatively recent methadone user would be subject to the blanket exclusionary policy. However, the TA has indicated that there might be some flexibility with respect to a person who had once used methadone, but had been free of such use for a period of five years or more." 399 F.Supp., at 1036.
The Court finds no "concrete dispute between adverse litigants" over the former-users policy because no former user is entitled to relief under the District Court's injunction. Ante, at 573 n. 3. But respondent Frasier is a former user, see ante, at 576-577, n. 12, and the District Court expressly granted him relief, including backpay from the time he was rejected as a recent former methadone user. App. to Pet. for Cert. 77a-78a. The Court says the District Court erred in finding as facts that Frasier was using no narcotics in April 1973 and that petitioners refused to hire him solely because of his prior, apparently successful methadone treatment. As I read the facts as recited by the Court, the District Court was clearly correct, but in any event petitioners have not preserved this argument in the Court of Appeals or here. See Defendants' Proposed Findings of Fact 6-7 (filed Oct. 18, 1974) (Frasier "purportedly" graduated successfully from the methadone program on March 19, 1973, and, though otherwise eligible, was rejected due to "his drug history" on April 2, 1973). See also ante, at 596 n. 4 (POWELL, J., dissenting in relevant part).
The Court apparently reads the District Court's injunction as protecting only those persons who have been in methadone programs for a year or longer before they were cured. It is incredible that the District Court would have punished those persons able to triumph over heroin addiction in less than a year. And the context of the District Court's order, combined with grant of relief to respondent Frasier, makes it clear that the court intended to protect, and had good reason to do so, all former methadone users as well as those current users who have been successfully maintained for more than a year.
9
Respondents presented numerous top experts in this field and large employers experienced with former heroin users treated with methadone. Both sides rested after six days of trial, but the District Court demanded nine more days of further factual development, and an 8-hour inspection of petitioners' facilities, because it did not believe that the evidence could do so one-sidedly in respondents' favor. The court correctly realized its responsibility in a public-law case of this type to demand the whole story before making a constitutional ruling. See Chayes, The Role of the Judge in Public Law Litigation, 89 Harv.L.Rev. 1281 (1976). The District Court called six witnesses of its own, and it chose them primarily because they had written articles on methadone maintenance that petitioners asserted had shown the unreliability of that method of dealing with heroin addiction. It also correctly expressed its refusal to base its judgment on shifting medical opinions.
10
The rule's treatment of those who succeed is at issue here, since the District Court effectively amended the complaint to allege discrimination against that subgroup, see Fed.Rule Civ.Proc. 15(b), and implicitly found no constitutional violation with respect to others burdened by the practice.
11
The evidence indicates that poor risks will shake out of a methadone maintenance program within six months. 399 F.Supp., at 1048-1049. It is a measure of the District Court's caution that it set a 1-year standard.
12
A major sponsor of the recent amendments to the Rehabilitation Act, see ante, at 580-581, and n. 16, described the congressional determination behind them as being that a public employer "cannot assume that a history of alcoholism or drug addiction, including a past addiction currently treated by methadone maintenance, poses sufficient danger in and of itself to justify exclusion [from employment]. Such an assumption would have no basis in fact . . . ." 124 Cong.Rec. 37510 (1978) (Sen. Williams).
13
Though a person free of illicit drug use for one year might subsequently revert, those who have graduated from methadone programs might do so also, and the Court apparently believes that the employment exclusion could not constitutionally be extended to them. See ante, at 572-573, n. 3, and 591-592, n. 37. See also ante, at 596-597 (POWELL, J., dissenting in relevant part).
14
Since the District Court found as a fact that the bad risks could be culled from this group through the normal processing of employment applications, the only possible justification for this rule is that it eliminates applications in which petitioners would invest some time and effort before finding the person unemployable. The problem however, is that not everyone in the general population is employable. Thus, if vacancies are to be filled, individualized hiring decisions must be made in any event.
The fact of methadone use must be determined somehow, so all applications must at least be read, and petitioners require all applicants under 35, and many existing employees, to submit to urinalysis. Reading the applications may disclose not only the fact of methadone use but also whether the person has certain educational or other qualifications and whether he or she has had a stable employment experience or any recent job-related difficulties.
The Court says that petitioners would be burdened by having to verify that a methadone applicant was successful in his program. But the program itself verifies that fact, and the District Court found that all petitioners would have to do is get in touch with the program, and that "this is essentially no different from obtaining relevant references for other types of applicants." 399 F.Supp., at 1050 n. 3. A number of expert witnesses testified that the methadone clinics have far more information about their patients than personnel officers could ordinarily hope to acquire. The Court fears that some of the programs might not be reliable, but the District Court found that most are and ruled that petitioners do not have to hire any applicant "where there is reason to doubt the reliability of" the information furnished by the applicant's clinic. Id., at 1058; accord, id., at 1050 n. 3. Consequently, I see no error at all, much less clear error, in the District Court's finding of fact that petitioners "can perform this screening for methadone maintenance patients in basically the same way as in the case of other prospective employees." Id., at 1048; accord, id., at 1037 and 1050 n. 3.
As to supervision of those who are hired, the fact that they present no greater risk than any other employee eliminates the need for any special supervision, except perhaps a notation on their personnel files that they need not be assigned to safety-sensitive positions. The District Court found as a fact that petitioners' methods of monitoring all their employees "can be used for persons on methadone maintenance just as they are used for other persons . . . ." Id., at 1037.
15
I have difficulty also with the Court's easy conclusion that the challenged rule was "[q]uite plainly" not motivated "by any special animus against a specific group of persons." Ante, at 593 n. 40. Heroin addiction is a special problem of the poor, and the addict population is composed largely of racial minorities that the Court has previously recognized as politically powerless and historical subjects of majoritarian neglect. Persons on methadone maintenance have few interests in common with members of the majority, and thus are unlikely to have their interests protected, or even considered, in governmental decisionmaking. Indeed, petitioners stipulated that "[o]ne of the reasons for the . . . drug policy is the fact that [petitioners] fee[l] an adverse public reaction would result if it were generally known that [petitioners] employed persons with a prior history of drug abuse, including persons participating in methadone maintenance programs." App. 83A. It is hard for me to reconcile that stipulation of animus against former addicts with our past holdings that "a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782 (1973). On the other hand, the afflictions to which petitioners are more sympathetic, such as alcoholism and mental illness, are shared by both white and black, rich and poor.
Some weight should also be given to the history of the rule. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 267-268, 97 S.Ct. 555, 564-565, 50 L.Ed.2d 450 (1977). Petitioners admit that it was not the result of a reasoned policy decision and stipulated that they had never studied the ability of those on methadone maintenance to perform petitioners' jobs. Petitioners are not directly accountable to the public, are not the type of official body that normally makes legislative judgments of fact such as those relied upon by the majority today, and are by nature more concerned with business efficiency than with other public policies for which they have no direct responsibility. Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 103, 96 S.Ct. 1895, 1905, 48 L.Ed.2d 495 (1976). But see ante, at 592. Both the State and City of New York, which do exhibit those democratic characteristics, hire persons in methadone programs for similar jobs.
These factors together strongly point to a conclusion of invidious discrimination. The Court, however, refuses to view this rule as one "circumscrib[ing] a class of persons characterized by some unpopular trait or affiliation," ante, at 593, because it is admittedly justified as applied to many current and former heroin addicts. Because the challenged classification unfairly burdens only a portion of all heroin addicts, the Court reasons that it cannot possibly have been spurred by animus by the "ruling majority." All that shows, however, is that the characteristic in question is a legitimate basis of distinction in some circumstances; heroin addiction is a serious affliction that will often affect employability. But sometimes antipathy extends beyond the facts that may have given rise to it, and when that happens the "stereotyped reaction may have no rational relationship—other than pure prejudicial discrimination—to the stated purpose for which the classification is being made." Mathews v. Lucas, 427 U.S. 495, 520-521, 96 S.Ct. 2755, 2769, 49 L.Ed.2d 651 (1976) (STEVENS, J., dissenting; footnote omitted). That is the case here.
16
The District Court found that the only common physical effects of methadone maintenance are increases in sweating, insomnia, and constipation, and a decrease in sex drive. 399 F.Supp., at 1044-1045. Those disabilities are unfortunate but are hardly related to inability to be a subway janitor. This Court hints that the employability of even those successfully being maintained on methadone might be reduced by their obligation to appear at their clinics three times a week. Ante, at 588-589, n. 32. But all employees have outside obligations, and petitioners have neither argued nor proved that this particular duty would interfere with work.
The District Court did find that a possible but rare effect of methadone is minor impairment of abilities "required for the performance of potentially hazardous tasks, such as driving a car or operating machinery," 399 F.Supp., at 1045, and the court exempted from the relief ordered such positions as subway motorman, which require "unique sensitivity." Id., at 1052. But this does not make rational the blanket exclusion from all jobs, regardless of the qualifications required.
17
The District Court found, and petitioners have not challenged, that current problem drinkers present more of an employment risk than do respondents. Petitioners do not automatically discharge employees who are found to have a drinking problem. Id., at 1058.
18
The Court argues that "the fact that [petitioners have] the resources to expend on one class of problem employees does not by itself establish a constitutional duty on [their] part to come up with resources to spend on all classes of problem employees." Ante, at 591-592, n. 37. If respondents were demanding to have the benefit of a rehabilitation program extended to them, petitioners could perhaps argue for freedom to deal with only one problem at a time due to limited resources. See Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). In that situation, the lack of resources, or the desire to experiment in a limited field, might be a legitimate objective explaining the classification. But respondents are not asking for special, beneficial treatment; they are asking why they should be absolutely excluded from the opportunity to compete for petitioners' jobs.
| 12
|
440 U.S. 490
99 S.Ct. 1313
59 L.Ed.2d 533
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.The CATHOLIC BISHOP OF CHICAGO et al.
No. 77-752.
Argued Oct. 30, 1978.
Decided March 21, 1979.
Syllabus
The National Labor Relations Board (NLRB) certified unions as bargaining agents for lay teachers in schools operated by respondents, which refused to recognize or bargain with the unions; the NLRB issued cease-and-desist orders against respondents, holding that it had properly assumed jurisdiction over the schools. Exercise of jurisdiction was asserted to be in line with its policy of declining jurisdiction only when schools are "completely religious" not just "religiously associated," as it found to be the case here, because the schools taught secular as well as religious subjects. On respondents' challenges to the NLRB orders, the Court of Appeals denied enforcement, holding that the NLRB standard failed to provide a workable guide for the exercise of its discretion and that the NLRB's assumption of jurisdiction was foreclosed by the Religion Clauses of the First Amendment. Held : Schools operated by a church to teach both religious and secular subjects are not within the jurisdiction granted by the National Labor Relations Act, and the NLRB was therefore without authority to issue the orders against respondents. Pp. 499-507.
(a) There would be a significant risk of infringement of the Religion Clauses of the First Amendment if the Act conferred jurisdiction over church-operated schools. Cf. Lemon v. Kurtzman, 403 U.S. 602, 617, 91 S.Ct. 2105, 2113, 29 L.Ed.2d 745. Pp. 501-504.
(b) Neither the language of the statute nor its legislative history discloses any affirmative intention by Congress that church-operated schools be within the NLRB's jurisdiction, and, absent a clear expression of Congress' intent to bring teachers of church-operated schools within the NLRB's jurisdiction, the Court will not construe the Act in such a way as would call for the resolution of difficult and sensitive First Amendment questions. Pp. 504-507.
559 F.2d 1112, affirmed.
Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for petitioner.
Don H. Reuben, Chicago, Ill., for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
This case arises out of the National Labor Relations Board's exercise of jurisdiction over lay faculty members at two groups of Catholic high schools. We granted certiorari to consider two questions: (a) Whether teachers in schools operated by a church to teach both religious and secular subjects are within the jurisdiction granted by the National Labor Relations Act; and (b) if the Act authorizes such jurisdiction, does its exercise violate the guarantees of the Religion Clauses of the First Amendment? 434 U.S. 1061, 98 S.Ct. 1231, 55 L.Ed.2d 760 (1978).
2
* One group of schools is operated by the Catholic Bishop of Chicago, a corporation sole; the other group is operated by the Diocese of Fort Wayne-South Bend, Inc. The group operated by the Catholic Bishop of Chicago consists of two schools, Quigley North and Quigley South.1 Those schools are termed "minor seminaries" because of their role in educating high school students who may become priests. At one time, only students who manifested a positive and confirmed desire to be priests were admitted to the Quigley schools. In 1970, the requirement was changed so that students admitted to these schools need not show a definite inclination toward the priesthood. Now the students need only be recommended by their parish priest as having a potential for the priesthood or for Christian leadership. The schools continue to provide special religious instruction not offered in other Catholic secondary schools. The Quigley schools also offer essentially the same college-preparatory curriculum as public secondary schools. Their students participate in a variety of extracurricular activities which include secular as well as religious events. The schools are recognized by the State and accredited by a regional educational organization.2
3
The Diocese of Fort Wayne-South Bend, Inc., has five high schools.3 Unlike the Quigley schools, the special recommendation of a priest is not a prerequisite for admission. Like the Quigley schools, however, these high schools seek to provide a traditional secular education but oriented to the tenets of the Roman Catholic faith; religious training is also mandatory. These schools are similarly certified by the State.4
4
In 1974 and 1975, separate representation petitions were filed with the Board by interested union organizations for both the Quigley and the Fort Wayne-South Bend schools; representation was sought only for lay teachers.5 The schools challenged the assertion of jurisdiction on two grounds: (a) that they do not fall within the Board's discretionary jurisdictional criteria; and (b) that the Religion Clauses of the First Amendment preclude the Board's jurisdiction. The Board rejected the jurisdictional arguments on the basis of its decision in Roman Catholic Archdiocese of Baltimore, 216 N.L.R.B. 249 (1975). There the Board explained that its policy was to decline jurisdiction over religiously sponsored organizations "only when they are completely religious, not just religiously associated". Id., at 250. Because neither group of schools was found to fall within the Board's "completely religious" category, the Board ordered elections. Catholic Bishop of Chicago, 220 N.L.R.B. 359 (1975).6
5
In the Board-supervised election at the Quigley schools, the Quigley Education Alliance, a union affiliated with the Illinois Education Association, prevailed and was certified as the exclusive bargaining representative for 46 lay teachers. In the Diocese of Fort Wayne-South Bend, the Community Alliance for Teachers of Catholic High Schools, a similar union organization, prevailed and was certified as the representative for the approximately 180 lay teachers. Notwithstanding the Board's order, the schools declined to recognize the unions or to bargain. The unions filed unfair labor practice complaints with the Board under §§ 8(a)(1) and (5) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. §§ 158(a)(1) and (5). The schools opposed the General Counsel's motion for summary judgment, again challenging the Board's exercise of jurisdiction over religious schools on both statutory and constitutional grounds.
6
The Board reviewed the record of previous proceedings and concluded that all of the arguments had been raised or could have been raised in those earlier proceedings. Since the arguments had been rejected previously, the Board granted summary judgment, holding that it had properly exercised its statutory discretion in asserting jurisdiction over these schools.7 The Board concluded that the schools had violated the Act and ordered that they cease their unfair labor practices and that they bargain collectively with the unions. Catholic Bishop of Chicago, 224 N.L.R.B. 1221 (1976); Diocese of Fort Wayne-South Bend, Inc., 224 N.L.R.B. 1226 (1976).
II
7
The schools challenged the Board's orders in petitions to the Court of Appeals for the Seventh Circuit. That court denied enforcement of the Board's orders. 559 F.2d 1112 (1977).8 The court considered the Board's actions in relation to its discretion in choosing to extend its jurisdiction only to religiously affiliated schools that were not "completely religious." It concluded that the Board had not properly exercised its discretion, because the Board's distinction between "completely religious" and "merely religiously associated" failed to provide a workable guide for the exercise of discretion:
8
"We find the standard itself to be a simplistic black or white, purported rule containing no borderline demarcation of where 'completely religious' takes over or, on the other hand, ceases. In our opinion the dichotomous 'completely religious—merely religiously associated' standard provides no workable guide to the exercise of discretion. The determination that an institution is so completely a religious entity as to exclude any viable secular components obviously implicates very sensitive questions of faith and tradition. See, e. g., [Wisconsin v.] Yoder, . . . 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 [(1972)]." Id., at 1118.
9
The Court of Appeals recognized that the rejection of the Board's policy as to church-operated schools meant that the Board would extend its jurisdiction to all church-operated schools. The court therefore turned to the question of whether the Board could exercise that jurisdiction, consistent with constitutional limitations. It concluded that both the Free Exercise Clause and the Establishment Clause of the First Amendment foreclosed the Board's jurisdiction. It reasoned that from the initial act of certifying a union as the bargaining agent for lay teachers the Board's action would impinge upon the freedom of church authorities to shape and direct teaching in accord with the requirements of their religion. It analyzed the Board's action in this way:
10
"At some point, factual inquiry by courts or agencies into such matters [separating secular from religious training] would almost necessarily raise First Amendment problems. If history demonstrates, as it does, that Roman Catholics founded an alternative school system for essentially religious reasons and continued to maintain them as an 'integral part of the religious mission of the Catholic Church,' Lemon [v. Kurtzman, 403 U.S. 602], 616 [91 S.Ct. 2105, 2113, 29 L.Ed.2d 745] [(1971)], courts and agencies would be hard pressed to take official or judicial notice that these purposes were undermined or eviscerated by the determination to offer such secular subjects as mathematics, physics, chemistry, and English literature." Ibid.
11
The court distinguished local regulations which required fire inspections or state laws mandating attendance, reasoning that they did not "have the clear inhibiting potential upon the relationship between teachers and employers with which the present Board order is directly concerned." Id., at 1124. The court held that interference with management prerogatives, found acceptable in an ordinary commercial setting, was not acceptable in an area protected by the First Amendment. "The real difficulty is found in the chilling aspect that the requirement of bargaining will impose on the exercise of the bishops' control of the religious mission of the schools." Ibid.
III
12
The Board's assertion of jurisdiction over private schools is, as we noted earlier, a relatively recent development. Indeed, in 1951 the Board indicated that it would not exercise jurisdiction over nonprofit, educational institutions because to do so would not effectuate the purposes of the Act. Trustees of Columbia University in the City of New York, 97 N.L.R.B. 424. In 1970, however, the Board pointed to what it saw as an increased involvement in commerce by educational institutions and concluded that this required a different position on jurisdiction. In Cornell University, 183 N.L.R.B. 329, the Board overruled its Columbia University decision. Cornell University was followed by the assertion of jurisdiction over nonprofit, private secondary schools. Shattuck School, 189 N.L.R.B. 886 (1971). See also Judson School, 209 N.L.R.B. 677 (1974). The Board now asserts jurisdiction over all private, nonprofit, educational institutions with gross annual revenues that meet its jurisdictional requirements whether they are secular or religious. 29 CFR § 103.1 (1978). See, e. g., Academia San Jorge, 234 N.L.R.B. 1181 (1978) (advisory opinion stating that Board would not assert jurisdiction over Catholic educational institution which did not meet jurisdictional standards); Windsor School, Inc., 199 N.L.R.B. 457, 200 N.L.R.B. 991 (1972) (declining jurisdiction where private, proprietary school did not meet jurisdictional amounts).
13
That broad assertion of jurisdiction has not gone unchallenged. But the Board has rejected the contention that the Religion Clauses of the First Amendment bar the extension of its jurisdiction to church-operated schools. Where the Board has declined to exercise jurisdiction, it has done so only on the grounds of the employer's minimal impact on commerce. Thus, in Association of Hebrew Teachers of Metropolitan Detroit, 210 N.L.R.B. 1053 (1974), the Board did not assert jurisdiction over the Association which offered courses in Jewish culture in after-school classes, a nursery school, and a college. The Board termed the Association an "isolated instance of [an] atypical employer." Id., at 1058-1059. It explained: "Whether an employer falls within a given 'class' of enterprise depends upon those of its activities which are predominant and give the employing enterprise its character. . . . [T]he fact that an employer's activity . . . is dedicated to a sectarian religious purpose is not a sufficient reason for the Board to refrain from asserting jurisdiction." Id., at 1058. Cf. Board of Jewish Education of Greater Washington, D. C., 210 N.L.R.B. 1037 (1974). In the same year the Board asserted jurisdiction over an Association chartered by the State of New York to operate diocesan high schools. Henry M. Hald High School Assn., 213 N.L.R.B. 415 (1974). It rejected the argument that its assertion of jurisdiction would produce excessive governmental entanglement with religion. In the Board's view, the Association had chosen to entangle itself with the secular world when it decided to hire lay teachers. Id., at 418 n. 7.9
14
When it ordered an election for the lay professional employees at five parochial high schools in Baltimore in 1975, the Board reiterated its belief that exercise of its jurisdiction is not contrary to the First Amendment:
15
"[T]he Board's policy in the past has been to decline jurisdiction over similar institutions only when they are completely religious, not just religiously associated, and the Archdiocese concedes that instruction is not limited to religious subjects. That the Archdiocese seeks to provide an education based on Christian principles does not lead to a contrary conclusion. Most religiously associated institutions seek to operate in conformity with their religious tenets." Roman Catholic Archdiocese of Baltimore, 216 N.L.R.B., at 250.
16
The Board also rejected the First Amendment claims in Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, 223 N.L.R.B. 1218, 1218 (1976): "Regulation of labor relations does not violate the First Amendment when it involves a minimal intrusion on religious conduct and is necessary to obtain [the Act's] objective." (Emphasis added.)
17
The Board thus recognizes that its assertion of jurisdiction over teachers in religious schools constitutes some degree of intrusion into the administration of the affairs of church-operated schools. Implicit in the Board's distinction between schools that are "completely religious" and those "religiously associated" is also an acknowledgment of some degree of entanglement. Because that distinction was measured by a school's involvement with commerce, however, and not by its religious association, it is clear that the Board never envisioned any sort of religious litmus test for determining when to assert jurisdiction. Nevertheless, by expressing its traditional jurisdictional standards in First Amendment terms, the Board has plainly recognized that intrusion into this area could run afoul of the Religion Clauses and hence preclude jurisdiction on constitutional grounds.
IV
18
That there are constitutional limitations on the Board's actions has been repeatedly recognized by this Court even while acknowledging the broad scope of the grant of jurisdiction. The First Amendment, of course, is a limitation on the power of Congress. Thus, if we were to conclude that the Act granted the challenged jurisdiction over these teachers we would be required to decide whether that was constitutionally permissible under the Religion Clauses of the First Amendment.
19
Although the respondents press their claims under the Religion Clauses, the question we consider first is whether Congress intended the Board to have jurisdiction over teachers in church-operated schools. In a number of cases the Court has heeded the essence of Mr. Chief Justice Marshall's admonition in Murray v. The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804), by holding that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available. Moreover, the Court has followed this policy in the interpretation of the Act now before us and related statutes.
20
In Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), for example, the Court considered claims that serious First Amendment questions would arise if the Railway Labor Act were construed to allow compulsory union dues to be used to support political candidates or causes not approved by some members. The Court looked to the language of the Act and the legislative history and concluded that they did not permit union dues to be used for such political purposes, thus avoiding "serious doubt of [the Act's] constitutionality." Id., at 749, 81 S.Ct. at 1789.
21
Similarly in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), a case involving the Board's assertion of jurisdiction over foreign seamen, the Court declined to read the National Labor Relations Act so as to give rise to a serious question of separation of powers which in turn would have implicated sensitive issues of the authority of the Executive over relations with foreign nations. The international implications of the case led the Court to describe it as involving "public questions particularly high in the scale of our national interest." Id., at 17, 83 S.Ct., at 675. Because of those questions the Court held that before sanctioning the Board's exercise of jurisdiction " 'there must be present the affirmative intention of the Congress clearly expressed.' " Id., at 21-22, 83 S.Ct., at 678 (quoting Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 147, 77 S.Ct. 699, 704, 1 L.Ed.2d 709 (1957)).
22
The values enshrined in the First Amendment plainly rank high "in the scale of our national values." In keeping with the Court's prudential policy it is incumbent on us to determine whether the Board's exercise of its jurisdiction here would give rise to serious constitutional questions. If so, we must first identify "the affirmative intention of the Congress clearly expressed" before concluding that the Act grants jurisdiction.
V
23
In recent decisions involving aid to parochial schools we have recognized the critical and unique role of the teacher in fulfilling the mission of a church-operated school. What was said of the schools in Lemon v. Kurtzman, 403 U.S. 602, 617, 91 S.Ct. 2105, 2113, 29 L.Ed.2d 745 (1971), is true of the schools in this case: "Religious authority necessarily pervades the school system." The key role played by teachers in such a school system has been the predicate for our conclusions that governmental aid channeled through teachers creates an impermissible risk of excessive governmental entanglement in the affairs of the church-operated schools. For example, in Lemon, supra, at 617, 91 S.Ct., at 2113, we wrote:
24
"In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation." (Emphasis added.)
25
Only recently we again noted the importance of the teacher's function in a church school: "Whether the subject is 'remedial reading,' 'advanced reading,' or simply 'reading,' a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists." Meek v. Pittenger, 421 U.S. 349, 370, 95 S.Ct. 1753, 1766, 44 L.Ed.2d 217 (1975). Cf. Wolman v. Walter, 433 U.S. 229, 244, 97 S.Ct. 2593, 2603, 53 L.Ed.2d 714 (1977). Good intentions by government—or third parties—can surely no more avoid entanglement with the religious mission of the school in the setting of mandatory collective bargaining than in the well-motivated legislative efforts consented to by the church-operated schools which we found unacceptable in Lemon, Meek, and Wolman.
26
The Board argues that it can avoid excessive entanglement since it will resolve only factual issues such as whether an anti-union animus motivated an employer's action. But at this stage of our consideration we are not compelled to determine whether the entanglement is excessive as we would were we considering the constitutional issue. Rather, we make a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment will be infringed.
27
Moreover, it is already clear that the Board's actions will go beyond resolving factual issues. The Court of Appeals' opinion refers to charges of unfair labor practices filed against religious schools. 559 F.2d, at 1125, 1126. The court observed that in those cases the schools had responded that their challenged actions were mandated by their religious creeds. The resolution of such charges by the Board, in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission. It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.10
28
The Board's exercise of jurisdiction will have at least one other impact on church-operated schools. The Board will be called upon to decide what are "terms and conditions of employment" and therefore mandatory subjects of bargaining. See 29 U.S.C. § 158(d). Although the Board has not interpreted that phrase as it relates to educational institutions, similar state provisions provide insight into the effect of mandatory bargaining. The Oregon Court of Appeals noted that "nearly everything that goes on in the schools affects teachers and is therefore arguably a 'condition of employment.' " Springfield Education Assn. v. Springfield School Dist. No. 19, 24 Or.App. 751, 759, 547 P.2d 647, 650 (1976).
29
The Pennsylvania Supreme Court aptly summarized the effect of mandatory bargaining when it observed that the "introduction of a concept of mandatory collective bargaining, regardless of how narrowly the scope of negotiation is defined, necessarily represents an encroachment upon the former autonomous position of management." Pennsylvania Labor Relations Board v. State College Area School Dist., 461 Pa. 494, 504, 337 A.2d 262, 267 (1975). Cf. Clark County School Dist. v. Local Government Employee-Management Relations Board, 90 Nev. 442, 447, 530 P.2d 114, 117-118 (1974). See M. Lieberman & M. Moskow, Collective Negotiations for Teachers 221-247 (1966). Inevitably the Board's inquiry will implicate sensitive issues that open the door to conflicts between clergy-administrators and the Board, or conflicts with negotiators for unions. What we said in Lemon, supra, 403 U.S., at 616, 91 S.Ct., at 2113, applies as well here:
30
"[P]arochial schools involve substantial religious activity and purpose.
31
"The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid." (Footnote omitted.)
32
Mr. Justice Douglas emphasized this in his concurring opinion in Lemon, noting "the admitted and obvious fact that the raison d'etre of parochial schools is the propagation of a religious faith." 403 U.S., at 628, 91 S.Ct., at 2118.
33
The church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school. We see no escape from conflicts flowing from the Board's exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow. We therefore turn to an examination of the National Labor Relations Act to decide whether it must be read to confer jurisdiction that would in turn require a decision on the constitutional claims raised by respondents.
VI
34
There is no clear expression of an affirmative intention of Congress that teachers in church-operated schools should be covered by the Act. Admittedly, Congress defined the Board's jurisdiction in very broad terms; we must therefore examine the legislative history of the Act to determine whether Congress contemplated that the grant of jurisdiction would include teachers in such schools.
35
In enacting the National Labor Relations Act in 1935, Congress sought to protect the right of American workers to bargain collectively. The concern that was repeated throughout the debates was the need to assure workers the right to organize to counterbalance the collective activities of employers which had been authorized by the National Industrial Recovery Act. But congressional attention focused on employment in private industry and on industrial recovery. See, e. g., 79 Cong.Rec. 7573 (1935) (remarks of Sen. Wagner), 2 National Labor Relations Board, Legislative History of the National Labor Relations Act, 1935, pp. 2341-2343 (1949).
36
Our examination of the statute and its legislative history indicates that Congress simply gave no consideration to church-operated schools. It is not without significance, however, that the Senate Committee on Education and Labor chose a college professor's dispute with the college as an example of employer-employee relations not covered by the Act. S.Rep.No.573, 74th Cong., 1st Sess., 7 (1935), 2 Legislative History supra, at 2307.
37
Congress' next major consideration of the jurisdiction of the Board came during the passage of the Labor Management Relations Act of 1947—the Taft-Hartley Act. In that Act Congress amended the definition of "employer" in § 2 of the original Act to exclude nonprofit hospitals. 61 Stat. 137, 29 U.S.C. § 152(2) (1970 ed.). There was some discussion of the scope of the Board's jurisdiction but the consensus was that nonprofit institutions in general did not fall within the Board's jurisdiction because they did not affect commerce. See H.R. 3020, 80th Cong., 1st Sess. (1947), 1 National Labor Relations Board, Legislative History of the Labor Management Relations Act, 1947, p. 34 (1948) (hereinafter Leg.Hist.); H.R.Rep.No.245, 80th Cong., 1st Sess. 12 (1947), 1 Leg.Hist. 303; H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 3, 32 (1947), 1 Leg.Hist. 507, 536, U.S.Code Cong.Serv. 1947, p. 1135; 93 Cong.Rec. 4997 (1947), 2 Leg.Hist. 1464 (remarks of Sens. Tydings and Taft).11
38
The most recent significant amendment to the Act was passed in 1974, removing the exemption of nonprofit hospitals. Pub.L. 93-360, 88 Stat. 395. The Board relies upon that amendment as showing that Congress approved the Board's exercise of jurisdiction over church-operated schools. A close examination of that legislative history, however, reveals nothing to indicate an affirmative intention that such schools be within the Board's jurisdiction. Since the Board did not assert jurisdiction over teachers in a church-operated school until after the 1974 amendment, nothing in the history of the amendment can be read as reflecting Congress' tacit approval of the Board's action.
39
During the debate there were expressions of concern about the effect of the bill on employees of religious hospitals whose religious beliefs would not permit them to join a union. 120 Cong.Rec. 12946, 16914 (1974), Legislative History of the Coverage of Nonprofit Hospitals under the National Labor Relations Act, 1974, 93d Cong., 2d Sess., 118, 331-332 (1974) (remarks of Sen. Ervin and Rep. Erlenborn). The result of those concerns was an amendment which reflects congressional sensitivity to First Amendment guarantees:
40
"Any employee of a health care institution who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment; except that such employee may be required, in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious charitable fund exempt from taxation under section 501(c)(3) of title 26, chosen by such employee from a list of at least three such funds, designated in a contract between such institution and a labor organization, or if the contract fails to designate such funds, then to any such fund chosen by the employee." 29 U.S.C. § 169.
41
The absence of an "affirmative intention of the Congress clearly expressed" fortifies our conclusion that Congress did not contemplate that the Board would require church-operated schools to grant recognition to unions as bargaining agents for their teachers.
42
The Board relies heavily upon Associated Press v. NLRB, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953 (1937). There the Court held that the First Amendment was no bar to the application of the Act to the Associated Press, an organization engaged in collecting information and news throughout the world and distributing it to its members. Perceiving nothing to suggest that application of the Act would infringe First Amendment guarantees of press freedoms, the Court sustained Board jurisdiction. Id., at 131-132, 57 S.Ct., at 655. Here, on the contrary, the record affords abundant evidence that the Board's exercise of jurisdiction over teachers in church-operated schools would implicate the guarantees of the Religion Clauses.
43
Accordingly, in the absence of a clear expression of Congress' intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.
44
Affirmed.
APPENDIX TO OPINION OF THE COURT
45
Q. [by Hearing Officer] Now, we have had quite a bit of testimony already as to liturgies, and I don't want to beat a dead horse; but let me ask you one question: If you know, how many liturgies are required at Catholic parochial high schools; do you know?
46
A. I think our first problem with that would be defining liturgies. That word would have many definitions. Do you want to go into that?
47
Q. I believe you defined it before, is that correct, when you first testified?
48
A. I am not sure. Let me try briefly to do it again, okay?
49
Q. Yes.
50
A. A liturgy can range anywhere from the strictest sense of the word, which is the sacrifice of the Mass in the Roman Catholic terminology. It can go from that all the way down to a very informal group in what we call shared prayer.
51
Two or three individuals praying together and reflecting their own reactions to a scriptural reading. All of these—and there is a big spectrum in between those two extremes—all of these are popularly referred to as liturgies.
52
Q. I see.
53
A. Now, possibly in repeating your question, you could give me an idea of that spectrum, I could respond more accurately.
54
Q. Well, let us stick with the formal Masses. If you know, how many Masses are required at Catholic parochial high schools?
55
A. Some have none, none required. Some would have two or three during the year where what we call Holy Days of Obligation coincide with school days. Some schools on those days prefer to have a Mass within the school day so the students attend there, rather than their parish churches. Some schools feel that is not a good idea; they should always be in their parish church; so that varies a great deal from school to school.
56
Mr. Justice BRENNAN, with whom Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN join, dissenting.
57
The Court today holds that coverage of the National Labor Relations Act does not extend to lay teachers employed by church-operated schools. That construction is plainly wrong in light of the Act's language, its legislative history, and this Court's precedents. It is justified solely on the basis of a canon of statutory construction seemingly invented by the Court for the purpose of deciding this case. I dissent.
58
* The general principle of construing statutes to avoid unnecessary constitutional decisions is a well-settled and salutary one. The governing canon, however, is not that expressed by the Court today. The Court requires that there be a "clear expression of an affirmative intention of Congress" before it will bring within the coverage of a broadly worded regulatory statute certain persons whose coverage might raise constitutional questions. Ante, at 504. But those familiar with the legislative process know that explicit expressions of congressional intent in such broadly inclusive statutes are not commonplace. Thus, by strictly or loosely applying its requirement, the Court can virtually remake congressional enactments. This flouts Mr. Chief Justice Taft's admonition "that amendment may not be substituted for construction, and that a court may not exercise legislative functions to save [a] law from conflict with constitutional limitation." Yu Cong Eng v. Trinidad, 271 U.S. 500, 518, 46 S.Ct. 619, 623, 70 L.Ed. 1059 (1926). See Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct. 1659, 1668, 12 L.Ed.2d 992 (1964); Jay v. Boyd, 351 U.S. 345, 357 n. 21, 76 S.Ct. 919, 926, 100 L.Ed. 1242 (1956); Shapiro v. United States, 335 U.S. 1, 31, and n. 40, 68 S.Ct. 1375, 1391, 92 L.Ed. 1787 (1948); United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 334, 92 L.Ed. 297 (1948); Hopkins Federal Savings & Loan Ass'n v. Cleary, 296 U.S. 315, 335, 56 S.Ct. 235, 240, 80 L.Ed. 251 (1935).1
59
The settled canon for construing statutes wherein constitutional questions may lurk was stated in Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), cited by the Court, ante, at 1318:
60
" 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598." Id., at 749-750, 81 S.Ct., at 1790 (emphasis added).2
61
Accord, Pernell v. Southall Realty, 416 U.S. 363, 365, 94 S.Ct. 1723, 1724, 40 L.Ed.2d 198 (1974); Johnson v. Robison, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974); Curtis v. Loether, 415 U.S. 189, 192 n. 6, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260 (1974); Ashwander v. TVA, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265 (1933). This limitation to constructions that are "fairly possible," and "reasonable," see Yu Cong Eng v. Trinidad, supra, 271 U.S., at 518, 46 S.Ct., at 623, acts as a brake against wholesale judicial dismemberment of congressional enactments. It confines the judiciary to its proper role in construing statutes, which is to interpret them so as to give effect to congressional intention. The Court's new "affirmative expression" rule releases that brake.
II
62
The interpretation of the National Labor Relations Act announced by the Court today is not "fairly possible." The Act's wording, its legislative history, and the Court's own precedents leave "the intention of the Congress . . . revealed too distinctly to permit us to ignore it because of mere misgivings as to power." Moore Ice Cream Co. v. Rose, supra, 289 U.S., at 379, 53 S.Ct., at 622. Section 2(2) of the Act, 29 U.S.C. § 152(2), defines "employer" as
63
". . . any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization." (Emphasis added.)
64
Thus, the Act covers all employers not within the eight express exceptions. The Court today substitutes amendment for construction to insert one more exception—for church-operated schools. This is a particularly transparent violation of the judicial role: The legislative history reveals that Congress itself considered and rejected a very similar amendment.
65
The pertinent legislative history of the NLRA begins with the Wagner Act of 1935, 49 Stat. 449. Section 2(2) of that Act, identical in all relevant respects to the current section, excluded from its coverage neither church-operated schools nor any other private nonprofit organization.3 Accordingly, in applying that Act, the National Labor Relations Board did not recognize an exception for nonprofit employers, even when religiously associated.4 An argument for an implied nonprofit exemption was rejected because the design of the Act was as clear then as it is now: "[N]either charitable institutions nor their employees are exempted from operation of the Act by its terms, although certain other employers and employees are exempted." Central Dispensary & Emergency Hospital, 44 N.L.R.B. 533, 540 (1942) (footnotes omitted), enf'd, 79 U.S.App.D.C. 274, 145 F.2d 852 (1944). Both the lower courts and this Court concurred in the Board's construction. See Polish National Alliance v. NLRB, 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944), aff'g 136 F.2d 175 (CA7 1943); Associated Press v. NLRB, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953 (1937), aff'g 85 F.2d 56 (CA2 1936); NLRB v. Central Dispensary & Emergency Hospital, 79 U.S.App.D.C. 274, 145 F.2d 852 (1944).
66
The Hartley bill, which passed the House of Representatives in 1947, would have provided the exception the Court today writes into the statute:
67
"The term 'employer' . . . shall not include . . . any corporation, community chest, fund, or foundation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, . . . no part of the net earnings of which inures to the benefit of any private shareholder or individual . . . ." (Emphasis added.) H.R. 3020, 80th Cong., 1st Sess., § 2(2) (Apr. 18, 1947), reprinted in National Labor Relations Board, Legislative History of the Labor Management Relations Act, 1947, pp. 160-161 (hereafter, 1947 Leg.Hist.).
68
But the proposed exception was not enacted.5 The bill reported by the Senate Committee on Labor and Public Welfare did not contain the Hartley exception. See S. 1126, 80th Cong., 1st Sess., § 2(2) (Apr. 17, 1947), 1947 Leg.Hist. 99, 102. Instead, the Senate proposed an exception limited to nonprofit hospitals, and passed the bill in that form. See H.R. 3020, 80th Cong., 1st Sess., § 2(2) (Senate, May 13, 1947), 1947 Leg.Hist. 226, 229. The Senate version was accepted by the House in conference, thus limiting the exception for nonprofit employers to nonprofit hospitals. Ch. 120, 61 Stat. 136.6
69
Even that limited exemption was ultimately repealed in 1974. Pub.L. 93-360, 88 Stat. 395. In doing so, Congress confirmed the view of the Act expressed here: that it was intended to cover all employers—including nonprofit employers—unless expressly excluded, and that the 1947 amendment excluded only nonprofit hospitals. See H.R.Rep.No.931051, p. 4 (1974), reprinted in Senate Committee on Labor and Public Welfare, Legislative History of the Coverage of Nonprofit Hospitals under the National Labor Relations Act, 1974, p. 272 (Comm.Print 1974) (hereafter 1974 Leg.Hist.); 120 Cong.Rec. 12938 (1974), 1974 Leg.Hist. 95 (Sen. Williams); 120 Cong.Rec. 16900 (1974), 1974 Leg.Hist. 291 (Rep. Ashbrook).7 Moreover, it is significant that in considering the 1974 amendments, the Senate expressly rejected an amendment proposed by Senator Ervin that was analogous to the one the Court today creates—an amendment to exempt nonprofit hospitals operated by religious groups. 120 Cong.Rec. 12950, 12968 (1974), 1974 Leg.Hist. 119, 141. Senator Cranston, floor manager of the Senate Committee bill and primary opponent of the proposed religious exception, explained:
70
"[S]uch an exception for religiously affiliated hospitals would seriously erode the existing national policy which holds religiously affiliated institutions generally such as proprietary nursing homes, residential communities, and educational facilities to the same standards as their nonsectarian counterparts." 120 Cong.Rec. 12957 (1974), 1974 Leg.Hist. 137 (emphasis added).
71
See also ibid. (Sen. Javits); 120 Cong.Rec. 12957 (1974), 1974 Leg.Hist. 138 (Sen. Williams).8
72
In construing the Board's jurisdiction to exclude church-operated schools, therefore, the Court today is faithful to neither the statute's language nor its history. Moreover, it is also untrue to its own precedents. "This Court has consistently declared that in passing the National Labor Relations Act, Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause. See, e. g., Guss v. Utah Labor Relations Board, 353 U.S. 1, 3, 77 S.Ct. 598, 599, 609, 1 L.Ed.2d 601; Polish National Alliance v. National Labor Relations Board, 322 U.S. 643, 647-648, 64 S.Ct. 1196, 1198-1199, 88 L.Ed. 1509; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 607, 59 S.Ct. 668, 672, 83 L.Ed. 1014." NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963) (emphasis in original). As long as an employer is within the reach of Congress' power under the Commerce Clause—and no one doubts that respondents are—the Court has held him to be covered by the Act regardless of the nature of his activity. See, e. g., Polish National Alliance v. NLRB, 322 U.S. 643, 59 S.Ct. 668, 83 L.Ed. 1014 (1944) (nonprofit fraternal organization). Indeed, Associated Press v. NLRB, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953 (1937), construed the Act to cover editorial employees of a nonprofit news-gathering organization despite a claim—precisely parallel to that made here that their inclusion rendered the Act in violation of the First Amendment.9 Today's opinion is simply unable to explain the grounds that distinguish that case from this one.10
73
Thus, the available authority indicates that Congress intended to include—not exclude—lay teachers of church-operated schools. The Court does not counter this with evidence that Congress did intend an exception it never stated. Instead, despite the legislative history to the contrary, it construes the Act as excluding lay teachers only because Congress did not state explicitly that they were covered. In Mr. Justice Cardozo's words, this presses "avoidance of A DIFFICULTY . . . TO THE POINT OF DISINGENUOUS EVASION." Moore Ice Cream Co. v. Rose, 289 U.S., at 379, 53 S.Ct., at 622.11
III
74
Under my view that the NLRA includes within its coverage lay teachers employed by church-operated schools, the constitutional questions presented would have to be reached. I do not now do so only because the Court does not. See Sierra Club v. Morton, 405 U.S. 727, 755, 92 S.Ct. 1361, 1376, 31 L.Ed.2d 636 (1972) (Brennan, J., dissenting). I repeat for emphasis, however, that while the resolution of the constitutional question is not without difficulty, it is irresponsible to avoid it by a cavalier exercise in statutory interpretation which succeeds only in defying congressional intent. A statute is not "a nose OF WAX TO BE CHANGED FROM THAT WHICH THE PLAIN LANGUAGE IMPORTS . . . ." Yu Cong Eng v. Trinidad, 271 U.S., at 518, 46 S.Ct., at 623.
1
The Catholic Bishop operates other schools in the Chicago area, but they were not involved in the proceedings before the Board.
2
As explained to the Board's Hearing Officer, in Illinois the term "approval" is distinct from "recognition." Before a school may operate, it must be approved by the State's Department of Education. Approval is given when a school meets the minimal requirements under state law, such as for compulsory attendance; approval does not require any evaluation of the school's program. Recognition, which is not required to operate, is given only after the school has passed the State's evaluation.
3
The Diocese also has 47 elementary schools. They were not involved in the proceedings before the Board.
4
As explained to the Board's Hearing Officer, "certification" by the State of Indiana is roughly equivalent to "recognition" by the State of Illinois. Both are voluntary procedures which involve some evaluation by the state educational authorities.
5
The certification and order cover only "all full-time and regular part-time lay teachers, including physical education teachers . . .; and excluding rectors, procurators, dean of studies, business manager, director of student activities, director of formation, director of counseling services, office clerical employees, maintenance employees, cafeteria workers, watchmen, librarians, nurses, all religious faculty, and all guards and supervisors as defined in the Act . . . ." Catholic Bishop of Chicago, 220 N.L.R.B. 359, 360 (1975).
6
The decision concerning the Diocese of Fort Wayne-South Bend, Inc., is not reported.
7
The Board relied on its reasoning in Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, 223 N.L.R.B. 1218 (1976): "We also do not agree that the schools are religious institutions intimately involved with the Catholic Church. It has heretofore been the Board's policy to decline jurisdiction over institutions only when they are completely religious, not just religiously associated. Roman Catholic Archdiocese of Baltimore, Archdiocesan High Schools, 216 NLRB 249 (1975). The schools perform in part the secular function of educating children, and in part concern themselves with religious instruction. Therefore, we will not decline to assert jurisdiction over these schools on such a basis." 223 N.L.R.B., at 1218.
8
Cf. Caulfield v. Hirsch, 95 LRRM 3164 (ED Pa.1977) (enjoining Board from asserting jurisdiction over elementary schools in Archdiocese of Philadelphia). This case is presently under review by the Court of Appeals for the Third Circuit. See App. to Pet. for Cert. in Caulfield v. Hirsch, O.T. 1977, No. 77-1411, p. A76, cert. denied, 436 U.S. 957, 98 S.Ct. 3071, 57 L.Ed.2d 1122 (1978).
9
The Board went on to explain that the rights guaranteed by § 7 of the Act, 29 U.S.C. § 157, were "a part of our national heritage established by Congress, [and] were a legitimate exercise of Congress' constitutional power." 213 N.L.R.B., at 418 n. 7.
10
This kind of inquiry and its sensitivity are illustrated in the examination of Monsignor O'Donnell, the Rector of Quigley North, by the Board's Hearing Officer, which is reproduced in the appendix to this opinion.
11
The National Labor Relations Act was amended again when Congress passed the Labor-Management Reporting and Disclosure Act in 1959. 73 Stat. 519. That Act made no changes in the definition of "employer" and the legislative history contains no reference to church-operated schools. See generally National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (1959).
1
The Court's new canon derives from the statement, " 'there must be present the affirmative intention of the Congress clearly expressed,' " in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 678, 9 L.Ed.2d 547 (1963). Reliance upon that case here is clearly misplaced. The question in McCulloch was whether the National Labor Relations Act extended to foreign seamen working aboard foreign-flag vessels. No question as to the constitutional power of Congress to cover foreign crews was presented. Indeed, all parties agreed that Congress was constitutionally empowered to reach the foreign seamen involved while they were in American waters. Id., at 17, 83 S.Ct., at 675. The only question was whether Congress had intended to do so.
The McCulloch Court held that Congress had not meant to reach disputes between foreign shipowners and their foreign crews. McCulloch, however, did not turn simply upon an absence of affirmative evidence that Congress wanted to reach alien seamen, but rather upon the fact, as a prior case had already held, that the legislative history " 'inescapably describe[d] the boundaries of the Act as including only the workingmen of our own country and its possessions.' " Id., at 18, 83 S.Ct., at 676 quoting Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 144, 77 S.Ct. 699, 702, 1 L.Ed.2d 709 (1957). The Court also noted that under well-established rules of international law, "the law of the flag state ordinarily governs the internal affairs of a ship. See Wildenhus's Case, [120 U.S. 1,] at 12, 7 S.Ct. [385], at 387, 30 L.Ed. 565." 372 U.S., at 21, 83 S.Ct., at 677. In light of that contrary legislative history and domestic and international precedent, it is not at all surprising that McCulloch balked at holding foreign seamen covered without a strong affirmative showing of congressional intent. As the Court today admits, there is no such contrary legislative history or precedent with respect to jurisdiction over church-operated schools. Ante, at 504. The McCulloch statement, therefore, has no role to play in this case.
2
In Street, the Court construed the Railway Labor Act as not permitting the use of an employee's compulsorily checked-off union dues for political causes with which he disagreed. As in McCulloch, see n. 1, supra, it so held not because of an absence of affirmative evidence that Congress did mean to permit such uses, but rather because the language and history of the Act indicated affirmatively that Congress did not mean to permit such constitutionally questionable practices. See 367 U.S., at 765-770, 81 S.Ct., at 1798-1800.
3
Section 2(2), 49 Stat. 450, stated:
"The term 'employer' includes any person acting in the interest of an employer, directly or indirectly, but shall not include the United States, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization."
4
See Christian Board of Publication, 13 N.L.R.B. 534, 537 (1939), enf'd, 113 F.2d 678 (CA8 1940); American Medical Assn., 39 N.L.R.B. 385, 386 (1942); Central Dispensary & Emergency Hospital, 44 N.L.R.B. 533, 539 (1942), enf'd, 79 U.S.App.D.C. 274, 145 F.2d 852 (1944); Henry Ford Trade School, 58 N.L.R.B. 1535, 1536 (1944); Polish National Alliance, 42 N.L.R.B. 1375, 1380 (1942), enf'd, 136 F.2d 175 (CA7 1943), aff'd, 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944); Associated Press, 1 N.L.R.B. 788, 790, enf'd, 85 F.2d 56 (CA2 1936), aff'd, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953 (1937). In unpublished decisions, the Board also exercised jurisdiction over the YWCA and the Welfare & Recreational Association. See Central Dispensary & Emergency Hospital, 44 N.L.R.B., at 538 n. 8.
5
A number of reasons were offered for the rejection of the Hartley bill's exception. Some Congressmen strongly opposed the exception, see 93 Cong.Rec. 3446 (1947) (remarks of Rep. Klein); some were opposed to additional exceptions to the Board's jurisdiction, see id., at 4997 (remarks of Sen. Taft); and some thought it unnecessary, see H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 32 (1947), 1947 Leg.Hist. 536. See generally NLRB v. Wentworth Institute, 515 F.2d 550, 555 (CA1 1975) ("[P]erhaps the most obvious, interpretation of the rejection of the House exclusion would be that Congress meant to include nonprofit organizations [within the scope of the Act]"); Sherman & Black, The Labor Board and the Private Nonprofit Employer: A Critical Examination of the Board's Worthy Cause Exemption, 83 Harv.L.Rev. 1323, 1331-1337 (1970). But whatever the reasons, it is clear that an amendment similar to that made by the Court today was proposed and rejected in 1947.
6
The Board's contemporaneous construction of the 1947 amendment was that only nonprofit hospitals were intended to be exempt. In 1950, for example, in asserting jurisdiction over a nonprofit religious organization, the Board stated:
"The Employer asserts that, as it is a nonprofit organization which is engaged in purely religious activities, it is not engaged in commerce within the meaning of the Act. We find no merit in this contention. . . . As this Board and the courts have held, it is immaterial that the Employer may be a nonprofit organization, or that its activities may be motivated by considerations other than those applicable to enterprises which are, in the generally accepted sense, commercial." Sunday School Board of the Southern Baptist Convention, 92 N.L.R.B. 801, 802.
"It is true that in Trustees of Columbia University, 97 N.L.R.B. 424 (1951), the Board indicated that it would not exercise jurisdiction over nonprofit, educational institutions; but it expressly did so as a matter of discretion, affirming that the activities of the University did come within the Act and the Board's jurisdiction. Id., at 425. That 1951 discretionary decision does not undermine the validity of the Board's determination in Cornell University, 183 N.L.R.B. 329 (1970), that changing conditions—particularly the increasing impact of such institutions on interstate commerce—now required a change in policy leading to the renewed exercise of Board jurisdiction. As we emphasized in NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-266, 95 S.Ct. 959, 967-968, 43 L.Ed.2d 171 (1975):
"To hold that the Board's earlier decisions froze the development of this important aspect of the national labor law would misconceive the nature of administrative decisionmaking. ' "Cumulative experience" begets understanding and insight by which judgments . . . are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process.' NLRB v. Seven-Up Co., 344 U.S. 344, 349 [73 S.Ct. 287, 290, 97 L.Ed. 377] (1953)."
7
The House Report stated: "Currently, the only broad area of charitable, eleemosynary, educational institutions wherein the Board does not now exercise jurisdiction concerns the nonprofit hospitals, explicitly excluded by section 2(2) of the Act. . . . [T]he bill removes the existing Taft-Hartley exemption in section 2(2) of the Act. It restores to the employees of nonprofit hospitals the same rights and protections enjoyed by the employees of proprietary hospitals and most all other employees." H.R.Rep.No.93-1051, p. 4 (1974). Similarly, Senator Williams, Chairman of the Senate Committee on Labor and Public Welfare, criticized the nonprofit-hospital exemption as "not only inconsistent with the protection enjoyed by proprietary hospitals and other types of health care institutions, but it is also inconsistent with the coverage of other nonprofit activities." 120 Cong.Rec. 12938 (1974), 1974 Leg.Hist. 95. See also 120 Cong.Rec. 16900 (1974), 1974 Leg.Hist. 291 (Rep. Ashbrook).
8
The Court relies upon the fact that the 1974 amendments provided that "[a]ny employee of a health care institution who is a member of . . . a bona fide religion . . . which has historically held conscientious objections to joining . . . labor organizations shall not be required to join . . . any labor organization as a condition of employment . . . ." 29 U.S.C. § 169 (emphasis added). This is, of course, irrelevant to the instant case, as no employee has alleged that he was required to join a union against his religious principles and not even the respondent-employers contend that collective bargaining itself is contrary to their religious beliefs. Recognizing this, the Court has limited its inference from the amendment to the proposition that it reflects "congressional sensitivity to First Amendment guarantees." Ante, at 506. This is quite true, but its usefulness as support for the Court's opinion is completely negated by the rejection of the Ervin amendment, see text, supra, which makes clear the balance struck by Congress. While Congress agreed to exclude conscientiously objecting employees, it expressly refused to sanction an exclusion for all religiously affiliated employers.
9
Associated Press stated the employer's argument as follows:
"The conclusion which the petitioner draws is that whatever may be the case with respect to employees in its mechanical departments it must have absolute and unrestricted freedom to employ and to discharge those who, like Watson, edit the news, that there must not be the slightest opportunity for any bias or prejudice personally entertained by an editorial employee to color or to distort what he writes, and that the Associated Press cannot be free to furnish unbiased and impartial news reports unless it is equally free to determine for itself the partiality or bias of editorial employees. So it is said that any regulation protective of union activities, or the right collectively to bargain on the part of such employees, is necessarily an invalid invasion of the freedom of the press." 301 U.S., at 131.
10
The Court would distinguish Associated Press on the ground that there the Court "[p]erceiv[ed] nothing to suggest that application of the Act would infringe First Amendment guarantees . . . [while h]ere, on the contrary, the record affords abundant evidence that the Board's exercise of jurisdiction . . . would implicate the guarantees of the Religion Clauses." Ante, at 507. But this is mere assertion. The Court does not explain why the press' First Amendment problem in Associated Press was any less substantial than the church-supported schools' First Amendment challenge here. In point of fact, the problems raised are of precisely the same difficulty. The Court therefore cannot square its judicial "reconstruction" of the Act in this case with the refusal to rewrite the same Act in Associated Press.
11
Not even the Court's redrafting of the statute causes all First Amendment problems to disappear. The Court's opinion implies limitation of its exception to church-operated schools. That limitation is doubtless necessary since this Court has already rejected a more general exception for nonprofit organizations. See Polish National Alliance v. NLRB, 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944). But such an exemption, available only to church-operated schools, generates a possible Establishment Clause question of its own. Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), does not put that question to rest, for in upholding the property tax exemption for churches there at issue, we emphasized that New York had "not singled out . . . churches as such; rather, it has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations . . . ." Id., at 673, 90 S.Ct., at 1413. Like the Court, "at this stage of [my] consideration [I am] not compelled to determine whether the [Establishment Clause problem] is [as significant] and [I] would were [I] considering the constitutional issue." Ante, at 502. It is enough to observe that no matter which way the Court turns in interpreting the Act, it cannot avoid constitutional questions.
| 67
|
440 U.S. 519
99 S.Ct. 1328
59 L.Ed.2d 553
NEW YORK TELEPHONE COMPANY et al., Petitioners,v.NEW YORK STATE DEPARTMENT OF LABOR et al.
No. 77-961.
Argued Oct. 30, 1978.
Decided March 21, 1979.
Syllabus
A New York statute authorizes the payment of unemployment compensation after one week of unemployment, except that if a claimant's loss of employment is caused by a strike in the place of his employment the payment of benefits is suspended for an additional 7-week period. Pursuant to this statute, petitioners' striking employees began to collect unemployment compensation after the 8-week waiting period and were paid benefits for the remaining five months of the strike. Because New York's unemployment insurance system is financed primarily by employer contributions based on the benefits paid to former employees of each employer in past years, a substantial part of the cost of these benefits was ultimately imposed on petitioners. Petitioners brought suit in District Court seeking a declaration that the New York statute conflicts with federal law and is therefore invalid, and injunctive and monetary relief. The District Court granted the requested relief, holding that the availability of unemployment compensation is a substantial factor in the worker's decision to remain on strike and has a measurable impact on the progress of the strike and that the payment of such compensation conflicted "with the policy of free collective bargaining established in the federal labor laws and is therefore invalid under the [S]upremacy [C]lause." The Court of Appeals reversed, holding that although the New York statute conflicts with the federal labor policy, the legislative histories of the National Labor Relations Act (NLRA) and Social Security Act (SSA) indicate that such conflict was one which Congress has decided to tolerate. Held: The judgment is affirmed. Pp. 527-546; 546-547; 547-551.
566 F.2d 388, affirmed.
Mr. Justice STEVENS, joined by Mr. Justice WHITE and Mr. Justice REHNQUIST, concluded that Congress, in enacting the NLRA and SSA, did not intend to pre-empt a State's power to pay unemployment compensation to strikers. Pp. 527-546.
1
(a) This case does not involve any attempt by the State to regulate or prohibit private conduct in the labor-management field but rather involves a state program for the distribution of benefits to certain members of the public. Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280, and Lodge 76, Intern. Ass'n of Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396, distinguished. Although the class benefited is primarily made up of employees in the State and the class providing the benefits is primarily made up of employers in the State, and although some members of each class are occasionally engaged in labor disputes, the general purport of the program is not to regulate the bargaining relationship between the two classes but instead to provide an efficient means of insuring employment security in the State. Pp. 527-533.
2
(b) Rather than being a "state la[w] regulating the relations between employees, their union, and their employer," as to which the reasons underlying the pre-emption doctrine have their "greatest force," Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 193, 98 S.Ct. 1745, 1755, 56 L.Ed.2d 209, the New York statute is a law of general applicability. Since it appears that Congress has been sensitive to the importance of the States' interest in fashioning their own unemployment compensation programs and especially their own eligibility criteria, Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513; Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279; Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448, it is appropriate to treat New York's statute with the same deference that this Court has afforded analogous state laws of general applicability that protect interests "deeply rooted in local feeling and responsibility." With respect to such laws, "in the absence of compelling congressional direction," it will not be inferred that Congress "had deprived the States of the power to act." San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775. Pp. 533-540.
3
(c) The omission of any direction concerning payment of unemployment compensation to strikers in either the NLRA or SSA implies that Congress intended that the States be free to authorize, or to prohibit, such payments, an intention confirmed by frequent discussions in Congress subsequent to 1935 (when both of those Acts were passed) wherein the question of payments to strikers was raised but no prohibition against payments was ever imposed. In any event, a State's power to fashion its own policy concerning the payment of unemployment compensation is not to be denied on the basis of speculation about the unexpressed intent of Congress. New York has not sought either to regulate private conduct that is subject to the National Labor Relations Board's regulatory jurisdiction or to regulate any private conduct of the parties to a labor dispute, but instead has sought to administer its unemployment compensation program in a manner that it believes best effectuates the purposes of that scheme. In an area in which Congress has decided to tolerate a substantial measure of diversity, the fact that the implementation of this general state policy affects the relative strength of the antagonists in a bargaining dispute is not a sufficient reason for concluding that Congress intended to pre-empt that exercise of state power. Pp. 540-546.
4
Mr. Justice BRENNAN concluded that the legislative histories of the NLRA and SSA provide sufficient evidence of congressional intent not to pre-empt a State's power to pay unemployment compensation to strikers, and that therefore it was unnecessary to rely on any purported distinctions between this case and Teamsters v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280, and Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396. Pp. 546-547.
5
Mr. Justice BLACKMUN, joined by Mr. Justice MARSHALL, concluded that, under the pre-emption analysis of Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396, the evidence justifies the holding that Congress has decided to permit New York's compensation law notwithstanding its impact on the balance of bargaining power. He would not apply the requirement that "compelling congressional direction" be established before pre-emption can be found, nor would he find New York's law to be a "law of general applicability" under San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. Pp. 547-551.
6
David L. Benetar, New York City, for petitioners.
7
Maria Lenhoff Marcus, New York City, for respondents.
8
Mr. Justice STEVENS announced the judgment of the Court and delivered an opinion, in which Mr. Justice WHITE and Mr. Justice REHNQUIST joined.
9
The question presented is whether the National Labor Relations Act, as amended, implicitly prohibits the State of New York from paying unemployment compensation to strikers.
10
Communication Workers of America, AFL-CIO (CWA), represents about 70% of the nonmanagement employees of companies affiliated with the Bell Telephone Co. In June 1971, when contract negotiations had reached an impasse, CWA recommended a nationwide strike. The strike commenced on July 14, 1971, and, for most workers, lasted only a week. In New York, however, the 38,000 CWA members employed by petitioners remained on strike for seven months.1
11
New York's unemployment insurance law normally authorizes the payment of benefits after approximately one week of unemployment.2 If a claimant's loss of employment is caused by "a strike, lockout, or other industrial controversy in the establishment in which he was employed," § 592(1) of the law suspends the payment of benefits for an additional 7-week period.3 In 1971, the maximum weekly benefit of $75 was payable to an employee whose base salary was at least $149 per week.
12
After the 8-week waiting period, petitioners' striking employees began to collect unemployment compensation. During the ensuing five months more than $49 million in benefits were paid to about 33,000 striking employees at an average rate of somewhat less than $75 per week. Because New York's unemployment insurance system is financed primarily by employer contributions based on the benefits paid to former employees of each employer in past years, a substantial part of the cost of these benefits was ultimately imposed on petitioners.4
13
Petitioners brought suit in the United States District Court for the Southern District of New York against the state officials responsible for the administration of the unemployment compensation fund. They sought a declaration that the New York statute authorizing the payment of benefits to strikers conflicts with federal law and is therefore invalid, an injunction against the enforcement of § 592(1), and an award recouping the increased taxes paid in consequence of the disbursement of funds to their striking employees. After an 8-day trial, the District Court granted the requested relief. 434 F.Supp. 810 (1977).
14
The District Court concluded that the availability of unemployment compensation is a substantial factor in the worker's decision to remain on strike, and that in this case, as in others, it had a measurable impact on the progress of the strike.5 The court held that the payment of such compensation by the State conflicted "with the policy of free collective bargaining established in the federal labor laws and is therefore invalid under the supremacy clause of the United States Constitution."6 Id., at 819.
15
The Court of Appeals for the Second Circuit reversed. It did not, however, question the District Court's finding that the New York statute "alters the balance in the collective bargaining relationship and therefore conflicts with the federal labor policy favoring the free play of economic forces in the collective bargaining process." 566 F.2d 388, 390. The Court of Appeals noted that Congress has not expressly forbidden state unemployment compensation for strikers; the court inferred from the legislative history of the National Labor Relations Act,7 and Title IX of the Social Security Act,8 as well as from later developments, that the omission was deliberate. Accordingly, without questioning the premise that federal law generally requires that "State statutes which touch or concern labor relations should be neutral," the Court of Appeals concluded that "th[is] conflict is one which Congress has decided to tolerate." Id., at 395.
16
The importance of the question led us to grant certiorari. 435 U.S. 941, 98 S.Ct. 1519, 55 L.Ed.2d 537. We now affirm. Our decision is ultimately governed by our understanding of the intent of the Congress that enacted the National Labor Relations Act on July 5, 1935, and the Social Security Act on August 14 of the same year. Before discussing the relevant history of these statutes, however, we briefly summarize (1) the lines of pre-emption analysis that have limited the exercise of state power to regulate private conduct in the labor-management area and (2) the implications of our prior cases, both inside and outside the labor area, involving the distribution of public benefits to persons unemployed by reason of a labor dispute.
17
* The doctrine of labor law pre-emption concerns the extent to which Congress has placed implicit limits on "the permissible scope of state regulation of activity touching upon labor-management relations." Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 187, 98 S.Ct. 1745, 1752, 56 L.Ed.2d 209. Although this case involves the exploration of those limits in a somewhat novel setting, it soon becomes apparent that much of that doctrine is of limited relevance in the present context.
18
There is general agreement on the proposition that the "animating force" behind the doctrine is a recognition that the purposes of the federal statute would be defeated if state and federal courts were free, without limitation, to exercise jurisdiction over activities that are subject to regulation by the National Labor Relations Board. Id., at 218, 98 S.Ct., at 1768 (Brennan, J., dissenting).9 The overriding interest in a uniform, nationwide interpretation of the federal statute by the centralized expert agency created by Congress not only demands that the NLRB's primary jurisdiction be protected, it also forecloses overlapping state enforcement of the prohibitions in § 8 of the Act,10 Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338 U.S. 953, 70 S.Ct. 491, 94 L.Ed. 588, as well as state interference with the exercise of rights protected by § 7 of the Act.11 International Union, United Automobile Workers v. Russell, 356 U.S. 634, 644, 78 S.Ct. 932, 938, 2 L.Ed.2d 1030.12 Consequently, almost all of the Court's labor law decisions in which state regulatory schemes have been found to be preempted have involved state efforts to regulate or to prohibit private conduct that was either protected by § 7, prohibited by § 8,13 or at least arguably so protected or prohibited.14
19
In contrast to those decisions, there is no claim in this case that New York has sought to regulate or prohibit any conduct subject to the regulatory jurisdiction of the Labor Board under § 8.15 Nor are the petitioning employers pursuing any claim of interference with employee rights protected by § 7. The State simply authorized striking employees to receive unemployment benefits, and assessed a tax against the struck employers to pay for some of those benefits, once the economic warfare between the two groups reached its ninth week. Accordingly, beyond identifying the interest in national uniformity underlying the doctrine, the cases comprising the main body of labor pre-emption law are of little relevance in deciding this case.
20
There is, however, a pair of decisions in which the Court has held that Congress intended to forbid state regulation of economic warfare between labor and management, even though it was clear that none of the regulated conduct on either side was covered by the federal statute.16 In Teamsters v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280, the Court held that an Ohio court could not award damages against a union for peaceful secondary picketing even though the union's conduct was neither protected by § 7 nor prohibited by § 8. Because Congress had focused upon this type of conduct and elected not to proscribe it when § 303 of the Labor Management Relations Act17 was enacted, the Court inferred a deliberate legislative intent to preserve this means of economic warfare for use during the bargaining process.18
21
More recently, in Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396, the Court held that the state Commission could not prohibit a union's concerted refusal to work overtime. Although this type of partial strike activity had not been the subject of special congressional consideration, as had the secondary picketing involved in Morton, the Court nevertheless concluded that it was a form of economic self-help that was " 'part and parcel of the process of collective bargaining,' " 427 U.S., at 149, 96 S.Ct., at 2557 (quoting NLRB v. Insurance Agents Intern. Union, AFL-CIO, 361 U.S. 477, 495, 80 S.Ct. 419, 430, 4 L.Ed.2d 454), that Congress implicitly intended to be governed only by the free play of economic forces. The Court identified the crucial inquiry in its pre-emption analysis in Machinists as whether the exercise of state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the policies of the National Labor Relations Act.19
22
The economic weapons employed by labor and management in Morton, Machinists, and the present case are similar, and petitioners rely heavily on the statutory policy, emphasized in the former two cases, of allowing the free play of economic forces to operate during the bargaining process. Moreover, because of the twofold impact of § 592(1), which not only provides financial support to striking employees but also adds to the burdens of the struck employers, see n. 5, supra, we must accept the District Court's finding that New York's law, like the state action involved in Morton and Machinists, has altered the economic balance between labor and management.20
23
But there is not a complete unity of state regulation in the three cases.21 Unlike Morton and Machinists, as well as the main body of labor pre-emption cases, the case before us today does not involve any attempt by the State to regulate or prohibit private conduct in the labor-management field. It involves a state program for the distribution of benefits to certain members of the public. Although the class benefited is primarily made up of employees in the State and the class providing the benefits is primarily made up of employers in the State, and although some of the members of each class are occasionally engaged in labor disputes, the general purport of the program is not to regulate the bargaining relationships between the two classes but instead to provide an efficient means of insuring employment security in the State.22 It is therefore clear that even though the statutory policy underlying Morton and Machinists lends support to petitioners' claim, the holdings in those cases are not controlling. The Court is being asked to extend the doctrine of labor law pre-emption into a new area.
II
24
The differences between state laws regulating private conduct and the unemployment-benefits program at issue here are important from a pre-emption perspective. For a variety of reasons, they suggest an affinity between this case and others in which the Court has shown a reluctance to infer a pre-emptive congressional intent.
25
Section 591(1) is not a "state la[w] regulating the relations between employees, their union and their employer," as to which the reasons underlying the pre-emption doctrine have their "greatest force." Sears, 436 U.S., at 193, 98 S.Ct., at 1755. Instead, as discussed below, the statute is a law of general applicability. Although that is not a sufficient reason to exempt it from pre-emption, Farmer v. United Broth. of Carpenters and Joiners of America, Local 25, 430 U.S. 290, 300, 97 S.Ct. 1056, 1063, 51 L.Ed.2d 338, our cases have consistently recognized that a congressional intent to deprive the States of their power to enforce such general laws is more difficult to infer than an intent to pre-empt laws directed specifically at concerted activity. See id., at 302, 97 S.Ct., at 1064; Sears, supra, 436 U.S., at 194-195, 98 S.Ct., at 1756-1757; Cox, supra n. 16, at 1356-1357.
26
Because New York's program, like those in other States, is financed in part by taxes assessed against employers, it is not strictly speaking a public welfare program.23 It nevertheless remains true that the payments to the strikers implement a broad state policy that does not primarily concern labor-management relations, but is implicated whenever members of the labor force become unemployed. Unlike most States,24 New York has concluded that the community interest in the security of persons directly affected by a strike outweighs the interest in avoiding any impact on a particular labor dispute.
27
As this Court has held in a related context, such unemployment benefits are not a form of direct compensation paid to strikers by their employer; they are disbursed from public funds to effectuate a public purpose. NLRB v. Gullett Gin Co., 340 U.S. 361, 364-365, 71 S.Ct. 337, 339-340, 95 L.Ed. 337. This conclusion is no less true because New York has found it most efficient to base employer contributions to the insurance program on "experience ratings." Id., at 365, 71 S.Ct., at 340. Although this method makes the struck, rather than all, employers primarily responsible for financing striker benefits, the employer-provided moneys are nonetheless funneled through a public agency, mingled with other—and clearly public—funds, and imbued with a public purpose.25 There are obvious reasons, in addition, why the pre-emption doctrine should not "hinge on the myriad provisions of state unemployment compensation laws." Ibid.26
28
New York's program differs from state statutes expressly regulating labor-management relations for another reason. The program is structured to comply with a federal statute, and as a consequence is financed, in part, with federal funds. The federal subsidy mitigates the impact on the employer of any distribution of benefits. See n. 4, supra. More importantly, as the Court has pointed out in the past, the federal statute authorizing the subsidy provides additional evidence of Congress' reluctance to limit the States' authority in this area.
29
Title IX of the Social Security Act of 1935 established the participatory federal unemployment compensation scheme. The statute authorizes the provision of federal funds to States having programs approved by the Secretary of Labor.27 In Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513, an employee who was involuntarily deprived of his job because of a strike claimed a federal right under Title IX to collect benefits from the Ohio Bureau. Specifically, he contended that Ohio's statutory disqualification of claims based on certain labor disputes was inconsistent with a federal requirement that all persons involuntarily unemployed must be eligible for benefits.
30
Our review of both the statute and its legislative history convinced us that Congress had not intended to prescribe the nationwide rule that Hodory urged us to adopt. The voluminous history of the Social Security Act made it abundantly clear that Congress intended the several States to have broad freedom in setting up the types of unemployment compensation that they wish.28 We further noted that when Congress wished to impose or forbid a condition for compensation, it did so explicitly; the absence of such an explicit condition was therefore accepted as a strong indication that Congress did not intend to restrict the States' freedom to legislate in this area.29
31
The analysis in Hodory confirmed this Court's earlier interpretation of Title IX of the Social Security Act in Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279,30 and was itself confirmed by the Court's subsequent interpretation of Title IV of the Act in Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448.31 These cases demonstrate that Congress has been sensitive to the importance of the States' interest in fashioning their own unemployment compensation programs and especially their own eligibility criteria.32 It is therefore appropriate to treat New York's statute with the same deference that we have afforded analogous state laws of general applicability that protect interests "deeply rooted in local feeling and responsibility." With respect to such laws, we have stated "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. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775.33
III
32
Pre-emption of state law is sometimes required by the terms of a federal statute. See, e. g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 173-179, 98 S.Ct. 988, 1002-1005, 55 L.Ed.2d 179. This, of course, is not such a case. Even when there is no express pre-emption, any proper application of the doctrine must give effect to the intent of Congress. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443. In this case there is no evidence that the Congress that enacted the National Labor Relations Act in 1935, intended to deny the States the power to provide unemployment benefits for strikers.34 Cf. Hodory, 431 U.S., at 482, 97 S.Ct., at 1905. Far from the compelling congressional direction on which pre-emption in this case would have to be predicated, the silence of Congress in 1935 actually supports the contrary inference that Congress intended to allow the States to make this policy determination for themselves.
33
New York was one of five States that had an unemployment insurance law before Congress passed the Social Security and the Wagner Acts in the summer of 1935.35 Although the New York law did not then assess taxes against employers on the basis of their individual experience, it did authorize the payment of benefits to strikers out of a general fund financed by assessments against all employers in the State. The junior Senator from New York, Robert Wagner, was a principal sponsor of both the National Labor Relations Act and the Social Security Act;36 the two statutes were considered in Congress simultaneously and enacted into law within five weeks of one another; and the Senate Report on the Social Security bill, in the midst of discussing the States' freedom of choice with regard to their unemployment compensation laws, expressly referred to the New York statute as a qualifying example.37 Even though that reference did not mention the subject of benefits for strikers, it is difficult to believe that Senator Wagner38 and his colleagues were unaware of such a controversial provision, particularly at a time when both unemployment and labor unrest were matters of vital national concern.
34
Difficulty becomes virtual impossibility when it is considered that the issue of public benefits for strikers became a matter of express congressional concern in 1935 during the hearings and debates on the Social Security Act.39 As already noted, the scheme of the Social Security Act has always allowed the States great latitude in fashioning their own programs. From the beginning, however, the Act has contained a few specific requirements for federal approval. One of these provides that a State may not deny compensation to an otherwise qualified applicant because he had refused to accept work as a strikebreaker, or had refused to resign from a union as a condition of employment.40 By contrast, Congress rejected the suggestions of certain advisory members of the Roosevelt administration as well as some representatives of citizens and business groups that the States be prohibited from providing benefits to strikers.41 The drafters of the Act apparently concluded that such proposals should be addressed to the individual state legislatures "without dictation from Washington."42 Undeniably, Congress was aware of the possible impact of unemployment compensation on the bargaining process. The omission of any direction concerning payment to strikers in either the National Labor Relations Act or the Social Security Act implies that Congress intended that the States be free to authorize, or to prohibit, such payments.43
35
Subsequent events confirm our conclusion that the congressional silence in 1935 was not evidence of an intent to pre-empt the States' power to make this policy choice. On several occasions since the 1930's Congress has expressly addressed the question of paying benefits to strikers, and especially the effect of such payments on federal labor policy.44 On none of these occasions has it suggested that such payments were already prohibited by an implicit federal rule of law. Nor, on any of these occasions has it been willing to supply the prohibition. The fact that the problem has been discussed so often supports the inference that Congress was well aware of the issue when the Wagner Act was passed in 1935, and that it chose, as it has done since, to leave this aspect of unemployment compensation eligibility to the States.
36
In all events, a State's power to fashion its own policy concerning the payment of unemployment compensation is not to be denied on the basis of speculation about the unexpressed intent of Congress. New York has not sought to regulate private conduct that is subject to the regulatory jurisdiction of the National Labor Relations Board. Nor, indeed, has it sought to regulate any private conduct of the parties to a labor dispute. Instead, it has sought to administer its unemployment compensation program in a manner that it believes best effectuates the purposes of that scheme. In an area in which Congress has decided to tolerate a substantial measure of diversity, the fact that the implementation of this general state policy affects the relative strength of the antagonists in a bargaining dispute is not a sufficient reason for concluding that Congress intended to pre-empt that exercise of state power.
The judgment of the Court of Appeals is
37
Affirmed.
38
Mr. Justice BRENNAN, concurring in the result.
39
I agree that the New York statute challenged in this case does not regulate or prohibit private conduct that is either arguably protected by § 7 or arguably prohibited by § 8 of the NLRA. Any claim that the New York law is pre-empted must therefore be based on the principles applied in Teamsters v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964), and Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). Although I agree that the "statutory policy" articulated in those cases has some limits, I am not completely at ease with the distinctions employed by my Brother STEVENS in this case to define those limits.* However, since I agree with my Brother BLACKMUN's conclusion that the legislative histories of the NLRA and the Social Security Act reviewed in my Brother STEVENS' opinion provide sufficient evidence of congressional intent to decide this case without relying on those distinctions, I see no reason at this time either to embrace the distinctions or to deny that they may have relevance to pre-emption analysis in other cases.
40
Mr. Justice BLACKMUN, with whom Mr. Justice MARSHALL joins, concurring in the judgment.
41
I concur in the result. I agree with that portion of Part III of the plurality's opinion where the conclusion is reached that Congress has made its decision to permit a State to pay unemployment benefits to strikers. (Whether Congress has made that decision wisely is not for this Court to say.) Because I am not at all certain that the plurality's opinion is fully consistent with the principles recently enunciated in Machinists v. Wisconsin Emp. Rel. Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976), I refrain from joining the opinion's pre-emption analysis.
42
The plurality recognizes, ante, at 531, that the economic weapons employed in this case are similar to those under consideration in Machinists ; there, too, the Court concluded that Congress intended to leave the employment of such weapons to the free play of economic forces, and not subject to regulation by either the State or the NLRB. And the opinion also recognizes, ante, at 531-532, as the District Court and the Court of Appeals both found, that New York's statutory policy of paying unemployment benefits to strikers does indeed alter the economic balance between labor and management. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 123-124, 94 S.Ct. 1694, 1698-1699, 40 L.Ed.2d 1 (1974).
43
But the plurality now appears to hold, ante, at 532-533, that the analysis developed in Machinists and in its predecessor case, Teamsters v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964), is inapplicable in the evaluation of the New York statute at issue here. The plurality seems to say that since the state statute does not purport to regulate private conduct in labor-management relations, but rather is intended to serve the State's general purpose of providing benefits to certain members of the public in order to insure employment security, the Machinists-Morton analysis is not controlling. Relying on decisions of this Court indicating that Congress has been sensitive to the need to allow the States leeway in fashioning unemployment programs (see Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977); Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977); Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937)), the opinion then finds it appropriate to treat the New York statute with the deference afforded general state laws that protect state interests "deeply rooted in local feeling and responsibility." San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). Accordingly, the opinion concludes that " 'in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power' " to establish unemployment compensation programs like that of New York, ante, at 540, quoting Garmon, 359 U.S., at 244, 79 S.Ct., at 779.
44
This requirement that petitioners must demonstrate "compelling congressional direction" in order to establish pre-emption is not, I believe, consistent with the pre-emption principles laid down in Machinists. In that case, to repeat, the Court recognized that Congress had committed the use of economic self-help weapons to the free play of economic forces, and held that Wisconsin's attempt to regulate what the federal law had failed to curb denied one party a weapon Congress meant that party to have available to it. 427 U.S., at 150, 96 S.Ct., at 2557. I believe, however, that Machinists indicates that the States are not free, entirely and always, directly to enhance the self-help capability of one of the parties to such a dispute so as to result in a significant shift in the balance of bargaining power struck by Congress. Where the exercise of state authority to curtail, prohibit, or enhance self-help " 'would frustrate effective implementation of the Act's processes,' " id., at 148, 96 S.Ct., at 2557, quoting Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 380, 89 S.Ct. 1109, 1116, 22 L.Ed.2d 344 (1969), I believe Machinists compels the conclusion that Congress intended to pre-empt such state activity, unless there is evidence of congressional intent to tolerate it.
45
The difference between Machinists and this case, it seems to me, is in the initial premise. In the present case, the plurality appears to be saying that there is no pre-emption unless "compelling congressional direction" indicates otherwise. The premise is therefore one of assumed priority on the state side. In Machinists, on the other hand, the Court said, I thought, that there is pre-emption unless there is evidence of congressional intent to tolerate the state practice. That premise, therefore, is one of assumed priority on the federal side. The distinction is not semantic.
46
Despite the distinction, however, either approach leads to the same result in the present case. The evidence recited in Part III of the plurality's opinion establishes that Congress has decided to tolerate any interference caused by an unemployment compensation statute such as New York's. But this fortuity should not obscure a difference in reasoning that could prove important in some other pre-emption case. Where evidence of congressional intent to tolerate a State's significant alteration of the balance of economic power is lacking, Machinists might still require a holding of pre-emption notwithstanding the lack of compelling congressional direction that the state statute be pre-empted.
47
I believe this conclusion to be applicable to a case where a State alters the balance struck by Congress by conferring a benefit on a broadly defined class of citizens rather than by regulating more explicitly the conduct of parties to a labor-management dispute. The crucial inquiry is whether the exercise of state authority "frustrate[s] effective implementation of the Act's processes," not whether the State's purpose was to confer a benefit on a class of citizens. I therefore see no basis for determining the question "whether Congress, explicitly or implicitly, has ruled out such assistance in its calculus of laws regulating labor-management disputes," Super Tire, 416 U.S., at 124, 94 S.Ct., at 1699, other than in the very manner set out in Machinists in the evaluation of the more direct regulation of labor-management relations at issue in that case.
48
Nor do I agree that we should depart from the principles of Machinists on the ground that "our cases have consistently recognized that a congressional intent to deprive the States of their power to enforce such general laws is more difficult to infer than an intent to pre-empt laws directed specifically at concerted activity." Ante, at 533. The Court recognized in Garmon, 359 U.S., at 244, 79 S.Ct., at 779, that it 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." See Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 193-195, and n. 24, 98 S.Ct. 1745, 1755-1756, 56 L.Ed.2d 209 (1978); Farmer v. Carpenters, 430 U.S. 290, 296-301, 97 S.Ct. 1056, 1061-1064, 51 L.Ed.2d 338 (1977). It is true, of course, that the Court has also recognized an exception to the Garmon principle and "allowed a State to enforce certain laws of general applicability even though aspects of the challenged conduct were arguably prohibited" where, 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.' " Sears, 436 U.S., at 194-195, 98 S.Ct., at 1756, quoting Garmon, 359 U.S., at 244, 79 S.Ct., at 779. But as the cases make clear, the Court has not extended this exception beyond a limited number of state interests that are at the core of the States' duties and traditional concerns. See, e. g., Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957) (violence); Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) (libel); Farmer v. Carpenters, supra (intentional infliction of mental distress). I do not think the New York statute here at issue fits within the pre-emption exception carved out by those cases, and I therefore would not apply the requirement, found in those cases, that "compelling congressional direction" be established before pre-emption can be found.
49
In summary, in the adjudication of this case, I would not depart from the path marked out by the Court's decision in Machinists. Because, however, I believe the evidence justifies the conclusion that Congress has decided to permit New York's unemployment compensation law, notwithstanding its impact on the balance of bargaining power, I concur in the Court's judgment.
50
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting.
51
The Court's decision substantially alters, in the State of New York, the balance of advantage between management and labor prescribed by the National Labor Relations Act (NLRA). It sustains a New York law that requires the employer, after a specified time, to pay striking employees as much as 50% of their normal wages. In so holding, the Court substantially rewrites the principles of pre-emption that have been developed to protect the free collective bargaining which is the essence of federal labor law.
52
* The Policy of Free Collective Bargaining
53
Free collective bargaining is the cornerstone of the structure of labor-management relations carefully designed by Congress when it enacted the NLRA. Of the numerous actions that labor or management may take during collective bargaining to bring economic pressure to bear in support of their respective demands, the NLRA protects or prohibits only some. The availability and usefulness of many others depend entirely upon the relative economic strength of the parties.1
54
What Congress left unregulated is as important as the regulations that it imposed. It sought to leave labor and management essentially free to bargain for an agreement to govern their relationship.2 Congress also intended, by its limited regulation, to establish a fair balance of bargaining power. That balance, once established, obviates the need for substantive regulation of the fairness of collective-bargaining agreements: whatever agreement emerges from bargaining between fairly matched parties is acceptable.3 Thus, the NLRA's regulations not only are limited in scope but also must be viewed as carefully chosen to create the congressionally desired balance in the bargaining relationship. As the Court observed in Motor Coach Employees v. Lockridge, 403 U.S. 274, 286, 91 S.Ct. 1909, 1918, 29 L.Ed.2d 473 (1971), the primary impetus for enactment of "a comprehensive national labor law" was the need to stabilize labor relations by "equitably and delicately structuring the balance of power among competing forces so as to further the common good."4
55
Because the NLRA's limits represent a clear congressional choice with respect to the freedom and fairness of the bargaining process, the Court has been alert to prevent interference with collective bargaining that is unwarranted by the NLRA. For example, in NLRB v. Insurance Agents, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960), the Court rejected the conclusion of the National Labor Relations Board (Board) that certain on-the-job conduct undertaken by employees to support their bargaining demands was inconsistent with the union's duty to bargain in good faith. The Court, noting that the NLRA did not prohibit such actions, id., at 498, 80 S.Ct., at 432, concluded that allowing the Board to regulate the availability of such economic weapons would intrude on the area deliberately left unregulated by Congress.5
56
The Court employed the same analysis in reversing the Board's determination that the NLRA was violated by a lockout conducted to bring economic pressure to bear in support of the employer's bargaining position. American Ship Building Co. v. NLRB, 380 U.S. 300, 308, 85 S.Ct. 955, 962, 13 L.Ed.2d 855 (1965). It rejected the Board's suggestion that, in enforcing the employer's duty to bargain in good faith the Board could deny to the employer the use of certain economic weapons not otherwise proscribed by § 8.
57
"While a primary purpose of the National Labor Relations Act was to redress the perceived imbalance of economic power between labor and management it sought to accomplish that result by conferring certain affirmative rights on employees and by placing certain enumerated restrictions on the activities of employers. . . . Having protected employee organization in countervailance to the employers' bargaining power, and having established a system of collective bargaining whereby the newly coequal adversaries might resolve their disputes, the Act also contemplated resort to economic weapons should more peaceful measures not avail. [The NLRA does] not give the Board a general authority to assess the relative economic power of the adversaries in the bargaining process and to deny weapons to one party or the other because of its assessment of that party's, bargaining power." 380 U.S., at 316-317, 85 S.Ct., at 966.
58
The States have no more authority than the Board to upset the balance that Congress has struck between labor and management in the collective-bargaining relationship. "For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits." Garner v. Teamsters, 346 U.S. 485, 500, 74 S.Ct. 161, 171, 98 L.Ed. 228 (1953). In Teamsters v. Morton, 377 U.S. 252, 259-260, 84 S.Ct. 1253, 1258-1259, 12 L.Ed.2d 280 (1964), the Court held that a state law allowing damages for peaceful secondary picketing was pre-empted because "the inevitable result [of its application] would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy." Id., at 259-260, 84 S.Ct., at 1258. The Court followed the same approach in Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976), where it held pre-empted a state law under which the union had been enjoined from a concerted refusal to work overtime. Its prior decisions, the Court concluded, indicated that such activities, "whether of employer or employees, were not to be regulable by States any more than by the NLRB, for neither States nor the Board is 'afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful.' " Id., at 149, 96 S.Ct., at 2557, quoting NLRB v. Insurance Agents, supra, 361 U.S., at 498, 80 S.Ct., at 432.
II
59
Free Collective Bargaining and the New York Statute
60
The plurality's opinion, after acknowledging that the payment of benefits financed ultimately by the employer was "a substantial factor" in the employees' decision to strike and remain on strike, ante, at 525, further concedes—as it must—that the New York law "has altered the economic balance" between management and labor. Ante, at 532. During the strike, out of which the present controversy arose, the petitioners' employees collected more than $49 million in unemployment compensation. All but a small fraction of these benefits were paid from the petitioners' accounts in the New York unemployment insurance fund; because of these payments, the petitioners' tax rates were increased in subsequent periods.6 The challenged provisions of the New York statute thus had a "twofold impact" on the bargaining process (ante, at 526 n. 5, 531-532): they substantially cushioned the economic impact of the lengthy strike on the striking employees, and also made the strike more expensive for the employers.7
61
Nothing in the NLRA or its legislative history indicates that Congress intended unemployment compensation for strikers, let alone employer financing of such compensation, to be part of the legal structure of collective bargaining.8 The New York law therefore alters significantly the bargaining balance prescribed by Congress in that law. The decision upholding it cannot be squared with Morton and Machinists, where far less intrusive state statutes were invalidated because they "upset the balance of power between labor and management expressed in our national labor policy." Morton, 377 U.S., at 260, 84 S.Ct., at 1258.9
62
The plurality's opinion seeks to avoid this conclusion by ignoring the fact that the petitioners are not challenging the entire New York unemployment compensation law but only that portion of it that provides for benefits for striking employees. Although the plurality characterizes the State's unemployment compensation law as "a law of general applicability" that "implement[s] a broad state policy that does not primarily concern labor-management relations," ante, at 533, 534, this description bears no relation to reality when applied to the challenged provisions of the law. Those provisions are "of general applicability" only if that term means—contrary to what the plurality itself says—generally applicable only to labor-management relations. It would be difficult to think of a law more specifically focused on labor-management relations than one that compels an employer to finance a strike against itself.10
63
Even if the challenged portion of the New York statute properly could be viewed as part of a law of "general applicability," this generality of the law would have little or nothing to do with whether it is pre-empted by the NLRA. A state law with purposes and applications beyond the area of industrial relations nonetheless may impinge upon congressional policy when it is applied to the collective-bargaining relationship.11 The Court has recognized accordingly that pre-emption must turn not on the generality of purpose or applicability of a state law but on the effect of that law when applied in the context of labor-management relations. The "crucial inquiry regarding pre-emption" is whether the application of the state law in question " 'would frustrate effective implementation of the [NLRA's] processes.' " Machinists, 427 U.S., at 147-148, 96 S.Ct., at 2557, quoting Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 380, 89 S.Ct. 1109, 1116, 22 L.Ed.2d 344 (1969). As the Court stated in Farmer v. Carpenters, 430 U.S. 290, 300, 97 S.Ct. 1056, 1063, 51 L.Ed.2d 338 (1977):
64
"[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.' Garmon, 359 U.S., at 244 [, 79 S.Ct., at 779]. Instead, the cases reflect a balanced inquiry into such factors as the nature of the federal and state interests in regulation and the potential for interference with federal regulation." (Footnote omitted.)
65
Accord, Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 193, and n. 22, 98 S.Ct. 1745, 1755, 56 L.Ed.2d 209 (1978). It is self-evident that the "potential [of the New York law] for interference" (Morton, supra, 377 U.S., at 260, 84 S.Ct., at 1258) with the federally protected economic balance between management and labor is direct and substantial.12
66
The Court has identified several categories of state laws whose application is unlikely to interfere with federal regulatory policy under the NLRA. Farmer v. Carpenters, supra, 430 U.S., at 296-297, 97 S.Ct., at 1061-1062. Mr. Justice Frankfurter described one of these categories in broad terms in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243-244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959):
67
"[States retain authority to regulate] where the regulated conduct touche[s] 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."
68
The plurality, attempting to draw support from the foregoing generalization, mistakenly treats New York's requirement that employers pay benefits to striking employees as state action "deeply rooted in local feeling and responsibility."13 But the broad language from Garmon has been applied only to a narrow class of cases. In Garmon, Mr. Justice Frankfurter identified, as typical of the kind of state law that would not be pre-empted, "the traditional law of torts." Id., at 247, 79 S.Ct., at 780; cf. id., at 244 n. 2, 79 S.Ct., at 779. The Court has adhered to this understanding of the "local feeling and responsibility" exception formulated in Garmon. See Machinists, 427 U.S., at 136, 96 S.Ct., at 2551, and n. 2, ("Policing of actual or threatened violence to persons or destruction of property has been held most clearly a matter for the States"); id., at 151 n. 13, 96 S.Ct., at 2558; Farmer v. Carpenters, supra, 430 U.S., at 296-300, 97 S.Ct., at 1061-1063; cf. Sears, supra, 436 U.S., at 194-197, 98 S.Ct., at 1756-1757. The provisions of the New York law at issue here having nothing in common with the state laws protecting against personal torts or violence to property that have defined the "local feeling and responsibility" exception to pre-emption.
III
69
The Lack of Evidence of Congressional Intent to Alter the Policy of the NLRA
70
The challenged provisions of the New York law cannot, consistently with prior decisions of this Court, be brought within the "local feeling and responsibility" exception to the pre-emption doctrine. The principles of Morton and Machinists therefore require pre-emption in this case unless in some other law Congress has modified the policy of the NLRA. The plurality, acknowledging the need to look beyond the NLRA to support its conclusion, relies primarily on the Social Security Act. In that Act, adopted only five weeks after the passage of the NLRA, it finds an indication that Congress did intend that the States be free to make unemployment compensation payments part of the collective-bargaining relationship structured by the NLRA. But it is extremely unlikely that little over a month after enacting a detailed and carefully designed statute to structure industrial relations, the Congress would alter so dramatically the balance struck in that law. It would be even more remarkable if such a change were made, as the plurality suggests, without any explicit statutory expression, and indeed absent any congressional discussion whatever of the problem.
71
The Social Security Act, as the plurality acknowledges, ante, at 540, is silent on the question, neither authorizing the States to provide unemployment compensation for strikers nor prohibiting the States from making such aid available. Congress did explicitly forbid the States to condition unemployment compensation benefits upon acceptance of work as strikebreakers, or membership in a company union, or nonmembership in any labor union,14 thereby indicating an intention to prohibit interference with the collective-bargaining balance struck in the NLRA.
72
Nor does the legislative history of the Social Security Act reflect any congressional intention to allow unemployment compensation for strikers.15 Senator Wagner, a sponsor of the proposed legislation, made no reference to any such feature of the Social Security Act in his remarks to the Senate Finance Committee. Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 1-30 (1935).16 Although the suggestion that the Act should contain an explicit prohibition of unemployment compensation to strikers was included in several written submissions to the Senate Committee, there is no evidence whatever that the Committee considered the suggestion.17 Indeed, it is clear that the problem never received congressional attention, for the subject is mentioned nowhere in the Committee Reports or the congressional debates on the Social Security Act. H.R.Rep.No.615, 74th Cong., 1st Sess. (1935); S.Rep.No.628, 74th Cong., 1st Sess. (1935); 79 Cong.Rec. 5467-5478, 5528-5563, 5579-5606, 5678-5715, 5768, 5771-5817, 5856-5909, 5948-5994, 6037-6068, 9191, 9267-9273, 9282-9297, 9351-9362, 9366, 9418-9438, 9440, 9510-9543, 9625-9650, 11320-11343 (1935).18
73
Faced with the absence of any specific indications in the Social Security Act or its legislative history that Congress intended for the States to have the authority to upset the NLRA's collective-bargaining relationship by paying compensation to strikers, the plurality relies on the general policy embodied in the Social Security Act of leaving to the States the determination of eligibility requirements for compensation. Ante, at 537-538, 542, and n. 42.19 That policy supports the narrow interpretation of the few conditions on eligibility imposed on the States by the Social Security Act itself. Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 475 n. 3, 482-489, 97 S.Ct. 1898, 1902 n. 3, 1905-1909, 52 L.Ed.2d 513 (1977). But there is no indication in that Act or its legislative history that Congress thought that this general policy relieved the States of constraints imposed by other federal statutes such as the NLRA.20 In particular, it would be difficult indeed to infer from this feature of the Act that Congress intended to leave the States free to require employers to fund unemployment compensation for their striking employees without regard to the effect on the bargaining relationship structured by the NLRA.
74
The plurality holds, nonetheless, that New York may require employers to pay unemployment compensation to strikers amounting to some 50% of their average wage. Nothing in the plurality's opinion, moreover, limits such compensation to 50% of average wages, for the plurality indicates that the Social Security Act gives the States complete control over this aspect of their unemployment compensation programs. Accordingly, New York and other States are free not only to increase compensation to 100% but also to eliminate the waiting period now imposed on striking employees.21 The plurality's sweeping view of the Act thus lays open the way for any State to undermine completely the collective-bargaining process within its borders.
75
A much more cautious approach to implied amendments of the NLRA is required if the Court is to give proper effect to the legislative judgments of the Congress. Having once resolved the balance to be struck in the collective-bargaining relationship, and having embodied that balance in the NLRA, Congress should not be expected by the Court to reaffirm the balance explicitly each time it later enacts legislation that may touch in some way on the collective-bargaining relationship. Absent explicit modification of the NLRA, or clear inconsistency between the terms of the NLRA and a subsequent statute, the Court should assume that Congress intended to leave the NLRA unaltered.22 This assumption is especially appropriate in considering the intent of Congress when it enacted the Social Security Act just five weeks after completing its deliberations on the NLRA.
IV
76
The effect of the New York statute is to require an employer to pay a substantial portion of the wages of employees who are performing no services in return because they have voluntarily gone on strike. This distorts the core policy of the NLRA—the protection of free collective bargaining. Whether that national policy should be subject to such substantial alteration by any state legislature is a decision that the Congress should make after the plenary consideration and public debate that customarily accompany major legislation. The financing of striking employees by employers under unemployment compensation systems such as that of New York has never received any such consideration by Congress. The Court today, finding nothing in any statute, congressional committee report, or debate that indicates any intention to allow States to alter the balance of collective bargaining in this major way, rests its decision on inferences drawn from only the most fragmentary evidence.
77
I would hold, as it seems to me our prior decisions compel, that the New York statute contravenes federal law. It would then be open to the elected representatives of the people in Congress to address this issue in the way that our system contemplates.
1
Petitioners—New York Telephone Co., American Telephone & Telegraph Co. Long Lines Department, Western Electric Co., and Empire City Subway Co.—are the four Bell Telephone Co. affiliates with facilities and employees in the State of New York.
The goal of the New York strike was to disassociate the New York units of the CWA from the nationally settled-upon contract and to dislodge petitioners from the "pattern" bargaining format long used by Bell affiliates. Under that format, management and International CWA officials would select two Bell affiliates with early contract expiration dates and would attempt to reach a settlement at both, which would then be used as the basis for the contracts at all Bell units around the country. In order to "break the pattern," the New York CWA units refused to ratify the pattern contract agreed upon by the International CWA and the pattern-setting affiliates during the week-long national strike in July 1971, and most members of the New York units remained on strike. Although the International originally opposed the continuation of the strike, it eventually lent its support. The strike was settled when petitioners agreed to a modest, but precedentially significant, increase in wage benefits over the national pattern. 434 F.Supp. 810, 812-814, and n. 3 (S.D.N.Y.1977).
2
N.Y. Lab. Law § 590(7) (McKinney Supp. 1978-1979). Eligibility for benefits turns on the recipient's total unemployment and his capability and readiness, but inability, to gain work in his "usual employment or in any other for which he is reasonably fitted by training and experience." §§ 591(1), 591(2).
3
Section 592 (McKinney 1977) is entitled "Suspension of accumulation of benefit rights." Subsection (1) of that section, entitled "Industrial controversy," provides:
"The accumulation of benefit rights by a claimant shall be suspended during a period of seven consecutive weeks beginning with the day after he lost his employment because of a strike, lockout, or other industrial controversy in the establishment in which he was employed, except that benefit rights may be accumulated before the expiration of such seven weeks beginning with the day after such strike, lockout, or other industrial controversy was terminated."
4
In order to explain why the entire cost was not borne by the companies, it is necessary to describe in some detail the rather complicated method used by New York to compute employer contributions. The State maintains an "unemployment insurance fund" made up of all moneys available for distribution to unemployed persons. § 550 (McKinney 1977). A separate "unemployment administration fund" is maintained to finance the administration of the unemployment law. § 551.
The unemployment fund is divided into various "accounts." The "general account" is primarily made up of moneys derived from federal contributions under 42 U.S.C. § 1103 (a part of Title IX of the Social Security Act), the earnings on all moneys in the fund, and, occasionally, employer contributions. N.Y. Lab. Law §§ 577(1)(a), 577(2) (McKinney 1977 and Supp. 1978-1979). The money in the general account may be transferred to the administrative fund (the federally contributed money being specially set aside for this purpose, § 550(3)) or used to finance refunds, the payment of benefits to certain employees who move into New York from out of state, and claims against "employer accounts" that show negative balances. §§ 577(1)(b), 581(1)(e) (McKinney 1977 and Supp. 1978-1979).
Employer accounts, which make up the rest of the unemployment fund, contain all of the contributions from individual employers. The rate of contributions—above a minimum level charged to all employers—is generally based on the employer's "experience rating," i. e., the amount of unemployment benefits attributable to employees previously in his employ. §§ 570(1), 581 (McKinney 1977 and Supp. 1978-1979).
Employees are generally eligible for 156 "effective days" of benefits, which usually amount to about eight calendar months. §§ 523, 590(4), 601 (McKinney 1977 and Supp. 1978-1979). But not all of those benefits are attributed to the account, and thus reflected in the experience rating, of the employer who last employed the claimant. First, the account is only charged with four days of benefits for every five days during which the claimant was employed by that employer. If this computation exhausts the claimant's tenure with a given employer, the benefits are then charged to the account of the recipient's next most recent employer, or to the general account when the class of former employers of the recipient is exhausted. § 581(1)(e) (McKinney Supp. 1978-1979). Second, special provisions limit the liability of employers for claimants who previously
held down two jobs or were only employed part time. Ibid. Third, any benefits reimbursed by the Federal Government are not debited to employer accounts. Ibid. Finally, and most importantly, only one-half of the last 52 effective days of benefits available to a claimant are charged to the employer's account; the other half is debited to the general account, and that account is credited with amounts received from the Federal Government pursuant to the Federal-State Extended Unemployment Compensation Act, 26 U.S.C. § 3304. N.Y. Lab. Law § 601(4) (McKinney Supp. 1978-1979). Hence, it is not by any means accurate to state that the struck employer is charged with all of the unemployment benefits paid to striking employees. The Federal Government, and the class of New York employers as a whole, may also pay significant amounts of the benefits, as well as of the costs of administering the program.
In this case, for example, the payments to strikers commenced at a time when the unemployment account of petitioner New York Telephone Co. (TELCO) had credits of about $40 million. During the strike, about $43 million in benefits were paid to TELCO employees. Yet, TELCO's account was not completely depleted during the period, apparently because other accounts were debited with approximately $3 million in benefits paid to its workers.
Based on its unemployment benefits "experience" during the strike, TELCO's contributions to its unemployment account during the next two years were increased by about $16 million over what they would have been had no strike occurred. (The like figure for petitioners as a whole was just under $18 million.) See 434 F.Supp., at 813-814, and n. 4.
5
"Notwithstanding the State's adamant position to the contrary, I regard it as a fundamental truism that the availability to, or expectation or receipt of a substantial weekly tax-free payment of money by, a striker is a substantial factor affecting his willingness to go on strike or, once on strike, to remain on strike, in the pursuit of desired goals. This being a truism, one therefore would expect to find confirmation of it everywhere. One does." Id., at 813-814.
In the District Court's opinion, as well as in petitioners' briefs in this Court, the primary emphasis is on the impact of the availability of unemployment benefits on the striking employee. The District Court's economic-impact analysis finds further support, however, in the separate impact that the New York scheme has on the struck employer, whose unemployment insurance contribution rate will increase in rough proportion to the length of the 8-weeks-plus strike. But, as the District Court apparently recognized, under an economic-impact test it makes little difference—assuming the same amount of money is involved—whether the result of the unemployment scheme is simply to provide payments to striking workers, or simply to exact payments from struck employers, or some of both.
6
The District Court regarded the State's interest in making the payments as not of sufficient consequence to be a factor in its determination. Id., at 819.
7
49 Stat. 449, as amended, 29 U.S.C. § 151 et seq.
8
49 Stat. 639, as amended and recodified as the Federal Unemployment Tax Act, 26 U.S.C. § 3301 et seq., 42 U.S.C. § 501 et seq., § 1101 et seq.
9
"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, [403 U.S. 274, 286, 91 S.Ct. 1909, 29 L.Ed.2d 473]. Congress created the centralized expert agency to administer the Act because of its conviction—generated by the historic abuses of the labor injunction, . . . that the judicial attitudes, court procedures, and traditional judicial remedies, state and federal, were as likely to produce adjudications incompatible 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)." Sears, 436 U.S., at 218, 98 S.Ct., at 1768 (Brennan, J., dissenting).
10
29 U.S.C. § 158.
11
29 U.S.C. § 157.
12
"Cases that have held state authority to be pre-empted by federal law tend to fall into one of two categories: (1) those that reflect the concern that 'one forum would enjoin, as illegal, conduct which the other forum would find legal' and (2) those that reflect the concern 'that the [application of state law by] state courts would restrict the exercise of rights guaranteed by the Federal Acts.' Automobile Workers v. Russell, 356 U.S. 634, 644 [, 78 S.Ct. 932, 938, 2 L.Ed.2d 1030] (1958). '[I]n referring to decisions holding state laws pre-empted by the NLRA, care must be taken to distinguish pre-emption based on federal protection of the conduct in question . . . from that based predominantly on the primary jurisdiction of the National Labor Relations Board . . ., although the two are often not easily separable.' Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383 n. 19 [, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344] (1969)." Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 138, 96 S.Ct. 2548, 2552, 49 L.Ed.2d 396.
13
E. g., Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546; Garner v. Teamsters, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; Hill v. Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782.
14
E. g., Iron Workers v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646; Plumbers v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638; Marine Engineers v. Interlake S.S. Co., 370 U.S. 173, 82 S.Ct. 1237, 8 L.Ed.2d 418.
15
Cf. Nash v. Florida Industrial Comm'n, 389 U.S. 235, 88 S.Ct. 362, 19 L.Ed.2d 438, in which the Court held that the NLRA pre-empted a state policy of denying unemployment benefits to persons who filed unfair labor practice charges against their former employer. Relying upon § 8(a)(4) of the Act, which makes it an unfair labor practice for an employer to restrain or discriminate against an employee who files charges, the Court concluded that the state statute trenched on the employees' federally protected rights contrary to the Supremacy Clause. 389 U.S., at 238-239, 88 S.Ct., at 365-366.
For similar reasons, we reject petitioners' contention that the NLRA at the least forbids the States from awarding benefits to participants in illegal strikes. See Communication Workers of America (New York Telephone Co.), 208 N.L.R.B. 267 (1974) (declaring part of the strike involved in this case illegal). Because such a rule would inevitably involve the States in ruling on the legality of strikes under § 8, it would invite precisely the harms that the pre-emption doctrine is designed to avoid.
16
Although a leading commentator in this area contends that "[t]here are numerous situations in which the conduct is not arguably protected or prohibited but state law is precluded," Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1364 (1972), the Court has been faced with such situations on only the two occasions discussed in text. Dicta in other cases, however, have occasionally been cited in this context. See Hanna Mining Co. v. District 2, Marine Engineers, 382 U.S. 181, 187, 86 S.Ct. 327, 330, 15 L.Ed.2d 254; Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179 (negative implication of the holding); Garner v. Teamsters, supra, 346 U.S., at 500, 74 S.Ct., at 171.
17
29 U.S.C. § 187.
18
"This weapon of self-help, permitted by federal law, formed an integral part of the petitioner's effort to achieve its bargaining goals during negotiations with the respondent. Allowing its use is a part of the balance struck by Congress between the conflicting interests of the union, the employees, the employer and the community. Electrical Workers Local 761 v. Labor Board, 366 U.S. 667, 672 [81 S.Ct. 1285, 1288, 6 L.Ed.2d 592]. If the Ohio law of secondary boycott can be applied to proscribe the same type of conduct which Congress focused upon but did not proscribe when it enacted § 303, the inevitable result would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy. 'For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits.' Garner v. Teamsters Union, 346 U.S. 485, 500 [74 S.Ct. 161, 171, 98 L.Ed. 228.]" Teamsters v. Morton, 377 U.S., at 259-260, 84 S.Ct., at 1258.
19
"Whether self-help economic activities are employed by employer or union, the crucial inquiry regarding pre-emption is the same: whether 'the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act's processes.' Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S., at 380 [89 S.Ct., at 1116]" 427 U.S., at 147-148, 96 S.Ct., at 2557. See also id., at 147 n. 8, 96 S.Ct., at 2556.
20
What was said in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 123-124, 94 S.Ct. 1694, 1699, 40 L.Ed.2d 1, about a state benefits plan for strikers that did not impose a contributory burden on struck employers applies with special force in the present case with its twofold impact:
"Rather, New Jersey has declared positively that able-bodied striking workers who are engaged, individually and collectively in an economic dispute with their employer are eligible for economic benefits. This policy is fixed and definite. It is not contingent upon executive discretion. Employees know that if they go out on strike, public funds are available. The petitioners' claim is that this eligibility affects the collective-bargaining relationship, both in the context of a live labor dispute when a collective-bargaining agreement is in process of formulation, and in the ongoing collective relationship, so that the economic balance between labor and management, carefully formulated and preserved by Congress in the federal labor statutes, is altered by the State's beneficent policy toward strikers. It cannot be doubted that the availability of state welfare assistance for striking workers in New Jersey pervades every work stoppage, affects every existing collective-bargaining agreement, and is a factor lurking in the background of every incipient labor contract. The question, of course, is whether Congress, explicitly or implicitly, has ruled out such assistance in its calculus of laws regulating labor-management disputes."
See also Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 492, 97 S.Ct. 1898, 1910, 52 L.Ed.2d 513.
21
"[T]he conduct being regulated, not the formal description of governing legal standards, . . . is the proper focus of concern" in pre-emption cases. Motor Coach Employees v. Lockridge, 403 U.S. 274, 292, 91 S.Ct. 1909, 1920, 29 L.Ed.2d 473. Nevertheless, in assessing whether there is "conflicting [state and federal] regulation" of the conduct, ibid., the scope, purport, and impact of the state program may not be ignored.
22
For these same reasons, § 591(1) may be distinguished from a hypothetical state law, unattached to any benefits scheme, that imposes a fine on struck employers who failed to come to terms with striking employees within an allotted time period.
23
When confronted with welfare programs, the Courts of Appeals have been unwilling to imply a pre-emptive congressional intent. Super Tire Engineering Co. v. McCorkle, 550 F.2d 903 (CA3 1977), cert. denied, 434 U.S. 827, 98 S.Ct. 106; Francis v. Chamber of Commerce, 529 F.2d 515 (CA4 1975) (mem.) (unreported opinion), rev'd on other grounds sub nom. Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448; see ITT Lamp Division of International Tel. & Tel. Corp. v. Minter, 435 F.2d 989, 994 (CA1 1970), cert. denied, 402 U.S. 933, 91 S.Ct. 1526, 28 L.Ed.2d 868. It is interesting to note that under the economic-impact test applied by the District Court in this case, there is no meaningful way, for pre-emption purposes, to distinguish between unemployment and welfare programs. See n. 5, supra.
24
This may be an overstatement. It is true that only Rhode Island has a statutory provision like New York's that allows strikers to receive benefits after a waiting period of several weeks. See Grinnell Corp. v. Hackett, 475 F.2d 449, 457-459 (CA1 1973). But most States provide benefits to striking employees who have been replaced by nonstriking employees, and many States, pursuant to the so-called "American rule," allow strikers to collect benefits so long as their activities have not substantially curtailed the productive operations of their employer. See Hawaiian Telephone Co. v. Hawaii Dept. of Labor & Industrial Relations, 405 F.Supp. 275, 287-288 (Haw.1976), cert. denied, 435 U.S. 943, 98 S.Ct. 1522, 55 L.Ed.2d 539. For example, in Kimbell, Inc. v. Employment Security Comm'n, 429 U.S. 804, 97 S.Ct. 36, 50 L.Ed.2d 64 this Court dismissed for want of a substantial federal question an appeal from the Supreme Court of New Mexico which had held that a retroactive post-strike award of unemployment benefits to strikers under the "American rule" was not pre-empted by federal labor law.
25
Despite the experience-rating system, it is almost inevitable that some of the unemployment payments will be charged to the individual accounts of nonstruck employers as well as to a general account funded by the entire class of employers and by the Federal Government. See n. 4, supra.
26
"But respondent argues that the benefits paid from the Louisiana Unemployment Compensation Fund were not collateral but direct benefits. With this theory we are unable to agree. Payments of unemployment compensation were not made to the employees by respondent but by the state out of state funds derived from taxation. True, these taxes were paid by employers, and thus to some extent respondent helped to create the fund. However, the payments to the employees were not made to discharge any liability or obligation of respondent, but to carry out a policy of social betterment for the benefit of the entire state. See Dart's La.Gen.Stat., 1939, § 4434.1; In re Cassaretakis, 289 N.Y. 119, 126, 44 N.E.2d 391, 394-395, aff'd sub nom. Standard Dredging Corp. v. Murphy, 319 U.S. 306, 63 S.Ct. 1067, 87 L.Ed. 1416; Unemployment Compensation Commission v. Collins, 182 Va. 426, 438, 29 S.E.2d 388, 393. We think these facts plainly show the benefits to be collateral. It is thus apparent from what we have already said that failure to take them into account in ordering back pay does not make the employees more than 'whole' as that phrase has been understood and applied.
"Finally, respondent urges that the Board's order imposes upon it a penalty which is beyond the remedial powers of the Board because, to the extent that unemployment compensation benefits were paid to its discharged employees, operation of the experience-rating record formula under the Louisiana Act, Dart's La.Gen.Stat., 1939 (Cum.Supp.1949) §§ 4434.1 et seq., will prevent respondent from qualifying for a lower tax rate. We doubt that the validity of a back-pay order ought to hinge on the myriad provisions of state unemployment compensation laws. Cf. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 122-124 [, 64 S.Ct. 851, 856, 857, 88 L.Ed. 1170.] However, even if the Louisiana law has the consequence stated by respondent, which we assume arguendo, this consequence does not take the order without the discretion of the Board to enter. We deem the described injury to be merely an incidental effect of an order which in other respects effectuates the policies of the federal Act. It should be emphasized that any failure of respondent to qualify for a lower tax rate would not be primarily the result of federal but of state law, designed to effectuate a public policy with which it is not the Board's function to concern itself." NLRB v. Gullett Gin Co., 340 U.S., at 364-365, 71 S.Ct., at 340 (footnotes omitted). See also Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 508, 57 S.Ct. 868, 871, 81 L.Ed. 1245.
27
In broad outline, the federal scheme imposes a tax on employers which the States may mitigate (as all have done) by establishing their own unemployment programs. 26 U.S.C. § 3301. State programs qualified by the Secretary of Labor are then eligible for federal funds. 42 U.S.C. §§ 501-503.
28
"Appellee cites only a single page of the voluminous legislative history of the Social Security Act in support of his assertion that the Act forbids disqualification of persons laid off due to a labor dispute at a related plant. That page contains the sentence: 'To serve its purposes, unemployment compensation must be paid only to workers involuntarily unemployed.' Report of the Committee on Economic Security, as reprinted in Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 1311, 1328 (1935).
"The cited Report was one to the President of the United States and became the cornerstone of the Social Security Act. On its face, the quoted sentence may be said to give some support to appellee's claim that 'involuntariness' was intended to be the key to eligibility. A reading of the entire Report and consideration of the sentence in context, however, show that Congress did not intend to require that the States give coverage to every person involuntarily unemployed.
"The Report recognized that federal definition of the scope of coverage would probably prove easier to administer than individualized state plans, id., at 1323, but it nonetheless recommended the form of unemployment compensation scheme that exists today, namely, federal involvement primarily through tax incentives to encourage state-run programs. The Report's section entitled 'Outline of Federal Act' concludes with the statement:
" 'The plan for unemployment compensation that we suggest contemplates that the States shall have broad freedom to set up the type of unemployment compensation they wish. We believe that all matters in which uniformity is not absolutely essential should be left to the States. The Federal Government, however, should assist the States in setting up their administrations and in the solution of the problems they will encounter.' Id., at 1326." 431 U.S., at 482-483, 97 S.Ct., at 1905-1906.
In addition to undercutting petitioners' general argument that federal law restricts New York's freedom to provide unemployment benefits to strikers, this legislative history also belies their more specific claim that involuntary unemployment must be "the key to eligibility" under Title IX-qualified programs.
29
"Indeed, study of the various provisions cited shows that when Congress wished to impose or forbid a condition for compensation, it was able to do so in explicit terms.16 There are numerous examples, in addition to the one set forth in n. 16, less related to labor disputes but showing congressional ability to deal with specific aspects of state plans.17 The fact that Congress has chosen not to legislate on the subject of labor dispute disqualifications confirms our belief that neither the Social Security Act nor the Federal Unemployment Tax Act was intended to restrict the States' freedom to legislate in this area.
"16 See, for example, 26 U.S.C. § 3304(a)(5), which from the start has provided:
" '(5) compensation shall not be denied in such State to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
" '(A) if the position offered is vacant due directly to a strike, lockout, or other labor dispute;
" '(B) if the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;
" '(C) if as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.'
"17 See Employment Security Amendments of 1970, 84 Stat. 695; Emergency Unemployment Compensation Act of 1971, 85 Stat. 811; Emergency Unemployment Compensation Act of 1974, 88 Stat. 1869; Unemployment Compensation Amendments of 1976, 90 Stat. 2667." Id., at 488-489, and nn. 16, 17, 97 S.Ct., at 1908, and nn. 16, 17.
30
"A wide range of judgment is given to the several states as to the particular type of statute to be spread upon their books. For anything to the contrary in the provisions of this act they may use the pooled unemployment form, which is in effect with variations in Alabama, California, Michigan, New York, and elsewhere. They may establish a system of merit ratings applicable at once or to go into effect later on the basis of subsequent experience. . . . They may provide for employee contributions as in Alabama and California, or put the entire burden upon the employer as in New York. They may choose a system of unemployment reserve accounts by which an employer is permitted after his reserve has accumulated to contribute at a reduced rate or even not at all. This is the system which had its origin in Wisconsin. What they may not do, if they would earn the credit, is to depart from those standards which in the judgment of Congress are to be ranked as fundamental." 301 U.S., at 593-594, 57 S.Ct., at 894.
31
In Batterton, the Court was faced with the question of whether the eligibility criteria for certain unemployment benefits under Title IV of the Act (AFDC-UF) were to be set nationally by the Secretary of Health, Education, and Welfare or locally by each State. The Court found the presumption in favor of "cooperative federalism" and the free play of "legitimate local policies in determining eligibility" strong enough to overcome considerable "varian[t]" legislative history concerning a recent amendment to the statute. Thus, despite references in the congressional Reports accompanying the amendment to "a uniform" and "a Federal definition of unemployment," the Court concluded that Congress had not intended to replace the various state definitions of unemployment with a federal one, and it specifically left the States free to provide benefits to strikers. This result is the more persuasive in the present context because the Batterton Court, citing Hodory, commented that the federal restraints imposed on state unemployment programs by Title IX are "not so great"—and thus not as likely pre-emptive—as those imposed by Title IV. 432 U.S., at 419, 97 S.Ct., at 2402.
32
The force of the legislative history discussed in Hodory, Steward, and Batterton, comes close to removing this case from the pre-emption setting altogether. In light of those decisions, the case may be viewed as presenting a potential conflict between two federal statutes—Title IX of the Social Security Act and the NLRA rather than between federal and state regulatory statutes. But however the conflict is viewed, its ultimate resolution depends on an analysis of congressional intent.
33
See also Construction Workers v. Laburnun Construction 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. United 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).
34
See Grinnell Corp., 475 F.2d, at 454-457; Hawaiian Telephone Co., 405 F.Supp., at 285-286; Dow Chemical Co. v. Taylor, 57 F.R.D. 105, 108 (E.D.Mich.1972).
35
See generally Steward, 301 U.S., at 593-594, 57 S.Ct., at 893-894.
36
Wagner was also a prominent advocate of local freedom of choice with respect to unemployment benefits programs. In introducing the bill that became the Social Security Act to the Senate Committee on Finance, he stated:
"With growing recognition of the need for unemployment insurance, there has come considerable sentiment for the enactment of a single and uniform national system. Its proponents advance the argument, among others, that only in this way can a worker who migrates from New York to New Mexico be kept under the same law at all times. This, of course, is true. But there are an infinitely greater number of workers, and industries, that remain permanently within the boundaries of these two States, respectively, and that are permanently subjected to entirely different industrial conditions. European experience with unemployment insurance has demonstrated that every major attempt, except in Russia, has been successful and has been continued. But it has also shown that widely varying systems have been applied to divergent economic settings. Our own extent of territory is so great, and our enterprises so dissimilar in far-flung sections, that we should, at least for a time, experiment in 48 separate laboratories." Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 3 (1935).
37
See S.Rep.No.628, 74th Cong., 1st Sess., 13 (1935).
38
Senator Wagner, in particular, had long taken an active interest and role in the design of social welfare and labor legislation in his home State of New York. Before leaving that State's legislature for the national one, for example, he had been the moving force behind such landmark statutes as New York's workmen's compensation law. See Webster's American Biographies 1081 (C. Van Doren & R. McHenry eds. 1974).
39
This controversy, in fact, had troubled the National Government for at least two years preceding the passage of the Social Security and Wagner Acts. In July 1933, the Federal Emergency Relief Administration ruled that unemployed strikers would be eligible for relief benefits, a policy that was carried out amid considerable outcry from the press and the business community during the textile strike of September 1934. I. Bernstein, Turbulent Years: A History of the American Worker, 1933-1941, p. 307 (1970). During the same weeks as the newspapers carried stories about the strike, in fact, Senator Wagner was revising previously offered labor-relations proposals into a new bill that became the NLRA. Id., at 323.
40
This provision, 26 U.S.C. § 3304(a)(5), is quoted in n. 29, supra.
41
During the hearings on the Social Security Act, written submissions offered by both Edwin Witte, Director of the President's Committee on Economic Security, on behalf of that Committee's Advisory Council, and Abraham Epstein, representing the American Association for Social Security, a citizen's group devoted to promoting social security legislation, recommended withholding benefits from strikers during a strike. Hearings on S. 1130, supra, n. 36, at 228, 472. An even stronger suggestion, which would have disqualified strikers even after the strike was over, was made by a spokesman for the National Association of Manufacturers.
It is also probative that just two weeks after the Social Security Act became law Congress, in its capacity as the legislature for the District of Columbia, passed an unemployment program for that locality which expressly precluded strikers from receiving benefits so long as a labor dispute was in "active progress." Act of Aug. 28, 1935, ch. 794, § 10(a), 49 Stat. 950. That it included the restriction in the local Social Security Act, but not in the national one, suggests the strength of its commitment to free local choice. That it did so is also important evidence that it neither assumed nor intended that its passage of the NLRA seven weeks earlier would pre-empt the payment of benefits to strikers in any case.
Of these four antistriker proposals considered by Congress during 1935, it is interesting to note that three allowed former strikers to receive benefits once the strike was ended. In light of these provisions, it seems clear that Congress perceived the opposition to such benefits not simply as a reflection of the view that voluntary unemployment should never be compensated but also as a concern with the nonneutral impact of such benefits on labor disputes. Its refusal explicitly to go along with that opposition on the national level with respect to the Social Security Act is thus all the more relevant to its intent in passing the NLRA several weeks earlier.
42
"Except for a few standards which are necessary to render certain that the State unemployment compensation laws are genuine unemployment compensation acts and not merely relief measures, the States are left free to set up any unemployment compensation system they wish, without dictation from Washington. The States may or may not add employee contributions to those required from the employers. Of the 5 States which have thus far enacted unemployment compensation laws, 2 require employee contributions, and 3 do not. Likewise, the States may determine their own compensation rates, waiting periods, and maximum duration of benefits. Such latitude is very essential because the rate of unemployment varies greatly in different States, being twice as great in some States as in others." S.Rep.No.628, supra n. 37, at 13.
43
The contemporaneous interpretation of Title IX by the Social Security Board, the administrative agency originally charged by Title IX of the Act with qualifying state statutes for federal funds, bears out this conclusion. Within a short time after the Act was passed, the Board approved the New York statute which provided benefits to strikers. The Labor Department has periodically followed suit since it took over authority in the area. 566 F.2d 388, 393-394.
44
Congress twice has considered and rejected amendments to existing laws that would have excluded strikers from receiving unemployment benefits. The House version of the Labor Management Relations Act of 1947 included a provision denying § 7 rights under the NLRA to any striking employee who accepted unemployment benefits from the State. H.R. 3020, § 2(3), 80th Cong., 1st Sess. (1947). This provision, which responded to public criticism of Pennsylvania's payment of benefits to striking miners in 1946, was rejected by the Senate and deleted by the Conference Committee. H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 32-33 (1947). Although the deletion was not explained, the House Minority Report suggests a reason: "Under the Social Security Act, however, the determination [of eligibility] was advisedly left to the States." H.R.Rep.No.245, 80th Cong., 1st Sess., 68 (1947).
In 1969, the Nixon Administration proposed an amendment to the Social Security Act that would have excluded strikers from unemployment compensation eligibility. Speaking in opposition to the proposal, Congressman Mills made the following comment:
"We have tried to keep from prohibiting the States from doing the things the States believe are in the best interest of their people. There are a lot of decisions in this whole program which are left to the States.
"For example, there are two States, I recall, which will pay unemployment benefits when employees are on strike, but only two out of 50 make that decision. That is their privilege to do so. . . . I would not vote for it . . ., but if the State wants to do it we believe they ought to be given latitude to enable them to write the program they want." 115 Cong.Rec. 34106 (1969).
Congress rejected the proposal.
On two other occasions, Congress has confronted the problem of providing purely federal unemployment and welfare benefits to persons involved in labor disputes. In both instances, it has drawn the eligibility criteria broadly enough to encompass strikers. 45 U.S.C. § 354(a-2)(iii) (Railroad Unemployment Insurance Act); 7 U.S.C. § 2014(c) (Food Stamp Act). It thereby rejected the argument that such eligibility forces the Federal Government "to take sides in labor disputes." H.R.Rep.No.91-1402, p. 11 (1970), U.S.Code Cong. & Admin.News, pp. 6025, 6035.
*
My Brother STEVENS correctly observes that our past pre-emption cases have dealt with statutes that regulate private conduct, rather than confer public benefits, but does not make clear why these different objectives justify different levels of scrutiny. Furthermore, although the distinction between laws of general applicability and laws directed particularly at labor-management relations perhaps has more significance in the application of the principles of Machinists than in the application of pre-emption principles where Congress has arguably protected or prohibited conduct, see Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1355-1356 (1972), I am not at all sure that the New York statute is a law of general applicability. See id., at 1356; POWELL, J., dissenting, post, at 557 and n. 10. I find more substance in my Brother STEVENS' conclusion that the legislative history of the Social Security Act supports the argument that New York's law should be according a deference not unlike that accorded state laws touching interests deeply rooted in local feeling and responsibility. Indeed, he may be correct in suggesting that this case is more a case of conflicting federal statutes than a pre-emption case, ante, at 539-540 n. 32.
1
See Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 134-135, 140-148, 96 S.Ct. 2548, 2550-2551, 2553-2557, 49 L.Ed.2d 396 (1976).
2
The tension between the value of freedom of contract and the legal ordering of the collective-bargaining relationship is discussed in H. Wellington, Labor and the Legal Process, ch. 2 (1968).
3
See NLRA § 8(d), 29 U.S.C. § 158(d); H. K. Porter Co. v. NLRB, 397 U.S. 99, 102-104, 90 S.Ct. 821, 822-824, 25 L.Ed.2d 146 (1970); Local 24, International Brotherhood of Teamsters v. Oliver, 358 U.S. 283, 295-296, 79 S.Ct. 297, 304-305, 3 L.Ed.2d 312 (1959); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893 (1937).
4
"An appreciation of the true character of the national labor policy expressed in the [NLRA] indicates that in providing a legal framework for union organization, collective bargaining, and the conduct of labor disputes, Congress struck a balance of protection, prohibition, and laissez faire in respect to union organization, collective bargaining, and labor disputes that would be upset if a state could also enforce statutes or rules of decision resting upon its views concerning accommodation of the same interests." Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1352 (1972).
5
The Court stated:
"[I]f the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract. . . . Our labor policy is not presently erected on a foundation of government control of the results of negotiations. . . . Nor does it contain a charter for the [Board] to act at large in equalizing disparities of bargaining power between employer and union." 361 U.S., at 490, 80 S.Ct., at 427.
6
Petitioner TELCO's employees collected $43 million in compensation. Of this amount, approximately $40 million was paid from TELCO's account in the unemployment insurance fund. 566 F.2d 388, 390 (CA2 1977); 434 F.Supp. 810, 812-813 (SDNY 1977). The proportion of the $6 million in compensation paid to employees of the other petitioners from the accounts of their employers does not appear in the record. But the overall element of nonemployer financing of compensation is so small that the Court of Appeals simply stated that "New York's unemployment insurance system is financed entirely by employer contributions, so the cost of making these payments was borne by the struck employers." 566 F.2d, at 391.
The petitioners' own tax rates are tied directly to the payments made to their employees by the so-called "experience rating system." Under that system, an employer's rate in any given period varies from the standard of 2.7% primarily according to the amount of benefits paid to its employees during prior periods. N.Y. Lab. Law § 581 (McKinney 1977 and Supp. 1978-1979).
7
The impact of unemployment compensation for strikers on the collective-bargaining process could be reduced significantly if such payments were funded from general tax revenues. The disruptive effect also would be lessened, though not as markedly, if such payments were funded by the unemployment compensation tax but were not taken into account in calculating experience ratings of individual employers. New York has eschewed both of these middle paths, however, in favor of a system in which such payments are financed directly by the struck employer.
New York is not alone in the course it has chosen. Although New York and Rhode Island are the only States that provide unemployment compensation for all covered employees idled by a strike, a number of other States pay unemployment compensation to strikers under varying conditions. See Grinnell Corp. v. Hackett, 475 F.2d 449, 457, and n. 7 (CA1), cert. denied, 414 U.S. 858, 94 S.Ct. 164, 38 L.Ed.2d 108 (1973); Albuquerque-Phoenix Exp., Inc. v. Employment Security Comm'n, 88 N.M. 596, 600-601, 544 P.2d 1161, 1165-1166 (1975), appeal dismissed sub nom. Kimbell, Inc. v. Employment Security Comm'n, 429 U.S. 804, 97 S.Ct. 36, 50 L.Ed.2d 64 (1976); U.S. Dept. of Labor, Comparison of State Unemployment Insurance Laws 4-41 (1972). All of those States appear to fund such payments from the unemployment compensation taxes paid by employers and calculated under an experience rating system. Staff Study of House Committee on Ways and Means, Information Relating to Federal-State Unemployment Compensation Laws 2-3 (1974).
8
At the time that Congress enacted the NLRA, unemployment compensation laws had been enacted in only five States, and only in Wisconsin had the State's program gone into operation, a year earlier. S.Rep.No.628, 74th Cong., 1st Sess., 11 (1935). Wisconsin and three of the other States denied unemployment compensation to strikers. The New York law, with its limited provision for compensation to striking employees, would not pay any benefits for another two years. It is not at all remarkable, therefore, that Congress overlooked the subject of unemployment compensation for strikers under these novel state programs during its consideration of the NLRA. Nor did Congress discuss the subject during its deliberations on the Social Security Act, which deals directly with state unemployment compensation programs. See Part III, infra.
9
The State's adjustment of the relative economic strength of the parties to the collective-bargaining relationship is equally effective, and equally disruptive of the balance established by the NLRA, whether it takes the form of restricting or supporting a party's activities in furtherance of its bargaining demands.
10
This assessment and readjustment of the collective-bargaining relationship by the state legislature is especially obvious in the challenged New York statute, which contains a special eligibility rule requiring strikers to wait seven weeks longer than other unemployed workers before collecting compensation. See ante, at 523 n. 3.
11
In reviewing the history of the analogous decisions on the pre-emption of state-court jurisdiction, the Court has observed that "some early cases suggested the true distinction lay between judicial application of general common law, which was permissible, as opposed to state rules specifically designed to regulate labor relations, which were pre-empted," but that this approach had been unsatisfactory. Motor Coach Employees v. Lockridge, 403 U.S. 274, 290-291, 91 S.Ct. 1909, 1920, 29 L.Ed.2d 473 (1971).
12
The District Court found that the availability of unemployment compensation had a significant effect on the willingness of the petitioners' employees to remain on strike.
"Notwithstanding the State's adamant position to the contrary, I regard it as a fundamental truism that the availability to, or expectation or receipt of a substantial weekly tax-free payment of money by, a striker is a substantial factor affecting his willingness to go on strike or, once on strike, to remain on strike, in the pursuit of desired goals. This being a truism, one therefore would expect to find confirmation of it everywhere. One does." 434 F.Supp., at 813-814.
The Court of Appeals accepted this finding by the District Court. 566 F.2d, at 390. The plurality's opinion, as already noted, supra, at 555-556, also accepts without question the District Court's findings on this point.
13
The plurality supports this approach to the New York law by reference to the Social Security Act, which commits to the States broad control over eligibility requirements for unemployment compensation. This aspect of the Social Security Act, the plurality concludes, makes it
"appropriate to treat New York's statute with the same deference that we have afforded analogous state laws of general applicability that protect interests 'deeply rooted in local feeling and responsibility.' With respect to such laws, we have stated '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. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775." Ante, at 539-540.
14
To qualify under federal law, a State's unemployment compensation program must, among other things, provide that:
"(5) compensation shall not be denied in such State to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
"(A) if the position offered is vacant due directly to a strike, lockout, or other labor dispute;
* * * * *
"(C) if as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization." Social Security Act, § 903(a)(5), 49 Stat. 640, 26 U.S.C. § 3304(a)(5).
15
The Court of Appeals for the First Circuit, after reviewing the legislative history, also concluded that "unambiguous Congressional intent is lacking" regarding the authorization of state unemployment compensation for striking employees. Grinnell Corp. v. Hackett, 475 F.2d, at 457. As one commentator has concluded, "the absence of legislation and the absence of any discussion in the committee reports relating to this legislation are indicative [that] Congress did not anticipate in detail the problems which would arise when workers claimed benefits when their own unemployment was related either directly or indirectly to a labor dispute." Haggart, Unemployment Compensation During Labor Disputes, 37 Neb.L.Rev. 668, 674 (1958).
16
The plurality also finds support for its holding by noting that Senator Wagner, a principal sponsor of both the NLRA and the Social Security Act, was familiar with New York's unemployment compensation law, and that the Senate Report on the Social Security bill—in the portion thereof discussing the States' freedom of choice with respect to such laws—expressly mentioned the New York statute as an example. The plurality's opinion then reasons:
"Even though that reference [in the Senate Report] did not mention the subject of benefits for strikers, it is difficult to believe that Senator Wagner and his colleagues were unaware of such a controversial provision . . . ." Ante, at 541-542.
I agree with the plurality that any provision for unemployment compensation for strikers would have been controversial. Indeed, it strains credulity to think that the entire Congress and the scores of witnesses who testified with respect to this legislation ignored so controversial an issue. On a question of this importance, especially in its relation to the NLRA, there would have been hearings, testimony, lobbying, and debate. I am unwilling to assume that Senator Wagner was "aware of [this] controversial provision" and elected to avoid, by remaining silent, the normal democratic processes of legislation. In any event, the unexpressed awareness of Senator Wagner hardly can be imputed to other Members of the Congress.
17
Contrary to the implication in the plurality's opinion, ante, at 543 n. 41, Mr. Witte, the Executive Director of the President's Committee on Economic Security, did not recommend withholding benefits from strikers during a strike. The issue of unemployment compensation for strikers never arose during Mr. Witte's testimony. The plurality's reference is to a Report of the Advisory Council to the Committee on Economic Security, a group of 23 "laymen" assembled to "give practical advice to the committee [on Economic Security]." Hearings on S. 1130, at 225. See H.R.Rep.No.615, 74th Cong., 1st Sess., App. (1935). Mr. Witte did not appear before the Senate Committee to support the report of the Advisory Council, and placed it in the record only at the request of the Senate Committee. The Report of the Committee on Economic Security did not refer to or comment on the subject of compensation for strikers, except perhaps indirectly in its statement that "[t]o serve its purposes, unemployment compensation must be paid only to workers involuntarily unemployed." Report of the President's Committee on Economic Security 21 (1935).
Similarly, the question of compensation for striking workers did not arise during the examination of the other two witnesses whose written submissions included suggestions that the Social Security Act should contain an explicit disqualification of strikers. See Hearings on S. 1130, supra, at 458-478, 919-959. The Court should be "extremely hesitant to presume general congressional awareness" of the issue of unemployment compensation for strikers "based only upon a few isolated statements in the thousands of pages of legislative documents." SEC v. Sloan, 436 U.S. 103, 121, 98 S.Ct. 1702, 1713, 56 L.Ed.2d 148 (1978).
18
Subsequent congressional inaction does not demonstrate an understanding that the Social Security Act modified the NLRA to allow payment of unemployment compensation to strikers. See ante, at 1343-1344, and n. 44. As the plurality acknowledges, ibid., the 1947 Conference Committee gave no reason for its rejection of an amendment to the NLRA that would have excluded strikers from the statute's coverage if they collected unemployment compensation. The Committee may have decided that the amendment was redundant, and so not worth the controversy it might provoke if included in the final bill sent to Congress: the House Report approving the amendment had stated that it was recommended to halt the "perversion" of the purposes of social security legislation. H.R.Rep.No.245, 80th Cong., 1st Sess., 12 (1947). The comments in 1969 of a single Congressman, delivered long after the original passage of the Social Security Act, are of no aid in determining congressional intent on this matter.
19
The plurality also cites the Railroad Unemployment Insurance Act (RUIA) and the Food Stamp Act, as evidence that Congress intended to allow the States to require employers to finance unemployment compensation to their striking employees. See ante, at 544-545, n. 44. These statutes are simply irrelevant to the question raised by this case. The RUIA, together with the Railway Labor Act, is part of a special system of labor-management relations separate and distinct from the general structure established in the NLRA. The availability of unemployment compensation for strikers within the jurisdiction of the RUIA is conditioned upon their compliance with restrictions on the right to strike that are much more onerous than those imposed by the NLRA. See Detroit & Toledo Shore Line R. Co. v. Transportation Union, 396 U.S. 142, 148-153, 90 S.Ct. 294, 298-301, 24 L.Ed.2d 325 (1969); Railway & Steamship Clerks v. Railroad Retirement Bd., 99 U.S.App.D.C. 217, 222-223, 239 F.2d 37, 42-43 (1956).
Unlike unemployment compensation, which is linked only to an interruption in the employee's income, food stamps and other general welfare programs are available only when income and assets have become insufficient to supply necessities. See, e. g., 7 U.S.C. § 2014(a) (1976 ed., Supp. III) ("Participation in the food stamp program shall be limited to those households whose incomes and other financial resources . . . are determined to be a substantial limiting factor in permitting them to obtain a more nutritious diet"). Such welfare programs are funded out of general revenues rather than by taxes levied on the employers of those using the stamps. Moreover, when 7 U.S.C. § 2014(c) was amended in 1977, the Congress deleted the proviso that "[r]efusal to work at a plant or site subject to a strike or a lockout for the duration of such strike or lockout shall not be deemed to be a refusal to accept employment." See 7 U.S.C. § 2014(c) (1976 ed., Supp. III).
20
Cf. Nash v. Florida Industrial Comm'n, 389 U.S. 235, 239, 88 S.Ct. 362, 366, 19 L.Ed.2d 438 (1967) (eligibility requirement in the State's unemployment compensation law, interfering with NLRA's policy of protection for employees filing unfair labor practice charges with the Board, held pre-empted).
21
The Solicitor General would escape this implication of the plurality's construction of the Social Security Act by concluding that at some point between 50% and 100% of weekly wages, or between an 8-week waiting period and none at all, the policy of the Social Security Act would give way to that of the NLRA.
"It is unnecessary to determine in this case the ultimate scope of the states' freedom to make payments to strikers that may intrude on or disrupt the collective bargaining process. . . . For example, a statute requiring an employer to pay its employees through the state unemployment compensation system—100 percent of wages from the beginning of a strike to the end would appear to be so far beyond the focus of the Social Security Act and so destructive of the principles of the NLRA as to be beyond the contemplation of Congress in permitting some freedom of choice to the states." Brief for the United States as Amicus Curiae 25 n. 25.
But the Solicitor General is no more successful in identifying the source of this limitation on the modification of the NLRA by the Social Security Act than is the plurality in identifying the source of the modification itself. The plurality refrains from compounding insupportable inferences, apparently accepting instead the open-ended implications of its conclusion that New York is free to pay such unemployment benefits to strikers as it desires.
22
See Malone v. White Motor Corp., 435 U.S. 497, 515-516, 98 S.Ct. 1185, 1195, 55 L.Ed.2d 443 (1978) (Stewart, J., dissenting) ("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]"). This Court has often stated that implied repeals and modifications of statutes by subsequent congressional enactments are justified only when the two statutes are otherwise irreconcilable. Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974); United States v. Welden, 377 U.S. 95, 103 n. 12, 84 S.Ct. 1082, 1087, 12 L.Ed.2d 152 (1964); United States v. Borden Co., 308 U.S. 188, 198-199, 60 S.Ct. 182, 188-189, 84 L.Ed. 181 (1939); cf. Bulova Watch Co. v. United States, 365 U.S. 753, 758, 81 S.Ct. 864, 867, 6 L.Ed.2d 72 (1961) (a specific statute controls over a general one without regard to priority of enactment).
| 910
|
440 U.S. 612
99 S.Ct. 1523
59 L.Ed.2d 619
Peggy J. CONNOR et al.v.J. P. COLEMAN, Judge, United States Court of Appeals, et al
No. 78-1013
Supreme Court of the United States
March 26, 1979
On motion for leave to file a petition for a writ of mandamus.
March 26, 1979. PER CURIAM.
1
Petitioners are plaintiffs in a suit seeking reapportionment of the Mississippi Legislature. In the most recent of the Court's decisions in this extended litigation, Connor v. Finch, 431 U.S. 407, 426, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977), it reversed the judgment of the District Court and directed that court to draw a new reapportionment plan for the 1979 elections "with a compelling awareness of the need for its expeditious accomplishment."
2
On remand, and after further proceedings, the parties developed a settlement plan. Negotiations broke down, however, over the wording of a consent decree. In the meantime, the State had adopted a new statutory reapportionment plan fashioned by the legislature. Because the Attorney General of the United States, acting pursuant to the Voting Rights Act of 1965, 42 U.S.C. § 1973c, refused to approve the legislature's plan, the State brought suit under the Act in the United States District Court for the District of Columbia, seeking a declaration that the plan does not have a discriminatory purpose or effect.
3
Acting on the state defendants' motion, the District Court in this case determined to stay all proceedings until judgment was entered in the District of Columbia litigation. If upheld, the statutory plan would supersede any court-ordered one. See Wise v. Lipscomb, 437 U.S. 535, 539-542, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978). Petitioners then submitted this motion for leave to file a petition for a writ of mandamus to require the District Court to adopt a plan. Petitioners contend that some reapportionment scheme must be in effect by June 7, the filing deadline for the 1979 elections. Petitioners argue that the legislature's plan may not be in effect by that date, and that, unless the court files its plan now, time limitations effectively will preclude them from obtaining review of that order in this Court. It is argued in response that immediate filing would be unduly disruptive if the filed plan were supplanted before June 7. The District Court has indicated, however, that, absent the conclusion of the District of Columbia suit, it will order a plan into effect on May 7.
4
The only issue here, therefore, is whether this Court should require the District Court to file its plan now rather than on May 7; we do not question the good faith of the District Court. We believe, however, that the better course is to file its plan now. In the unlikely event that a legislative plan should supersede the court plan before May 7, potential candidates would have more than a month to reassess their prospects. If, on the other hand, the legislative plan does not go into effect and the court plan is filed only on May 7, this Court will be faced with requests for emergency review that, if granted, could force changes only days before the June 7 deadline. Leave to file the petition is therefore granted. The District Court is instructed, forthwith and without further delay, to adopt a final plan for the reapportionment of the Mississippi Legislature. Our consideration of the petition for a writ of mandamus is continued for 30 days. See Connor v. Coleman, 425 U.S. 675, 679, 96 S.Ct. 1814, 48 L.Ed.2d 295 (1976).
5
It is so ordered.
6
Mr. Justice POWELL took no part in the decision of this motion.
7
Mr. Justice MARSHALL, dissenting.
8
For 13 years, the three-judge District Court for the Southern District of Mississippi has avoided implementing an apportionment plan for that State which satisfies the requirements of the Equal Protection Clause. The case now comes before us for the eighth time, after the District Court chose to ignore our directive, issued nearly 22 months ago, that it resolve this controversy expeditiously. In my view, the Court cannot tolerate such defiance. Accordingly, not only would I grant plaintiffs' motion, which the United States supports, for leave to file a petition for writ of mandamus, but I would issue the writ as well.
9
This litigation began in 1965 when private plaintiffs successfully challenged the extreme population variances of the existing legislative apportionment. Connor v. Johnson, 256 F.Supp. 962 (1966). After the legislature enacted a reapportionment that failed to meet constitutional standards, the District Court formulated its own temporary plan for the 1967 quadrennial elections. Under the plan, 34 of the 52 house districts and 10 of the 36 senate districts were multimember. See Connor v. Finch, 431 U.S. 407, 410 n. 3, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977). The variance from absolute population equality between the largest and smallest house districts was 20.83%, and the variance in senate districts was 23.24%. Connor v. Johnson, 265 F.Supp. 492, 504-507 (1967). On appeal, this Court affirmed without opinion use of the temporary plan. 386 U.S. 483, 87 S.Ct. 1174, 18 L.Ed.2d 224 (1967).
10
The District Court struck down a second legislative reapportionment in 1971. In its place, the court devised a final plan for the 1971 elections which authorized multimember representation for most house districts and almost half of the senate districts. Connor v. Johnson, 330 F.Supp. 506 (D.C.1971). The court failed to formulate a final plan for the State's three largest counties, instead ordering interim multimember representation in those areas.
11
Upon the plaintiffs' motion, this Court stayed the judgment of the District Court. Emphasizing that "when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multimember districts as a general matter" because they more closely reflect voter preferences, Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971), we ruled that the District Court could have implemented single-member districts for one of the three counties before the June 4 filing deadline. We therefore instructed the court to extend the deadline to June 14, 1971, and, "absent insurmountable difficulties," to "devise and put into effect" a single-member district plan for the county by that date. Ibid. On remand, however, the court did not institute single-member districts because it found that the difficulties were in fact insurmountable. Connor v. Johnson, 330 F.Supp. 521 (1971). This Court denied further interlocutory relief. 403 U.S. 928, 91 S.Ct. 2241, 29 L.Ed.2d 722 (1971).
12
The case came here again on direct appeal after the 1971 elections. We unanimously concluded that the 18.9% variance between the largest and smallest senate districts, and the 19.7% variance between the largest and smallest house districts "raise[d] substantial questions concerning the constitutionality of the District Court's plan as a design for permanent apportionment." Connor v. Williams, 404 U.S. 549, 550, 92 S.Ct. 656, 30 L.Ed.2d 704 (1972). Nevertheless, the Court declined to invalidate elections that had already been held. Id., at 550-551, 92 S.Ct. 656. Similarly, we found it unnecessary to determine the prospective validity of the plan because the District Court had retained jurisdiction over the three counties in which it had imposed interim multimember representation and had stated that a Special Master would be appointed in January 1972 to consider whether these counties could be divided into districts of substantially equal population for the 1975 and 1979 elections. Id., at 551, 92 S.Ct. 656. Reiterating our preference for single-member districts in judicially fashioned apportionment plans, we summarily vacated and remanded the case with directions that the proceedings before a Special Master "go forward and be promptly concluded." Ibid. (emphasis added).
13
Despite our instructions, no Special Master was appointed. See Connor v. Coleman, 425 U.S. 675, 676, 96 S.Ct. 1814, 48 L.Ed.2d 295 (1976). In April 1973, over a year after our judgment had issued, the Mississippi Legislature enacted a new reapportionment. The plaintiffs immediately filed objections to the plan on April 18. Almost two years later, in February 1975, the District Court finally held a hearing on those objections. While its decision was pending, the court learned that the legislature was considering revisions to the statutory plan. "Heeding the teachings" of Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975), that reapportionment is primarily the responsibility of state legislatures, the District Court further delayed its decision for the expected legislative action. Connor v. Waller, 396 F.Supp. 1308, 1311 (1975). When the legislature finally acted in April 1975, the court dismissed the plaintiffs' complaint and directed them to file an amended complaint addressing the new reapportionment. Ibid. The plaintiffs filed their complaint, and the court entered judgment essentially approving the 1975 legislative plan. Id., at 1332. In June 1975, this Court summarily and unanimously reversed. Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486. We held that the Mississippi reapportionment Acts "are not now and will not be effective as laws until and unless cleared pursuant to § 5" of the Voting Rights Act. Ibid. Relying on the unambiguous holdings of 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), we ruled that the District Court had erred in deciding the constitutional challenges to the Acts. Under these cases, the only inquiry open to the court was whether § 5 covered a state enactment that had not received the requisite federal scrutiny. 400 U.S., at 383-384, 91 S.Ct. 431; 393 U.S., at 558-561, 89 S.Ct. 817. Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973), clearly had held that § 5 encompasses reapportionment Acts, and the Mississippi Act clearly had not been submitted for § 5 clearance. Particularly because two members of the District Court were also on the court that had been reversed in Perkins for overstepping the inquiries permitted by § 5, see Perkins v. Matthews, 301 F.Supp. 565 (S.D.Miss.1969), the District Court's undertaking to resolve the constitutionality of this statute was inexcusable.
14
Our opinion also authorized the District Court to impose a court-ordered reapportionment if it became appropriate to do so. 421 U.S., at 657, 95 S.Ct. 2003. Four days after this decision, on June 9, 1975, Mississippi submitted the 1975 Acts to the Attorney General pursuant to § 5. The Attorney General immediately interposed his objection, thereby foreclosing implementation of the plan, on the ground that the State had not demonstrated the absence of a discriminatory purpose or impact. Consequently, the District Court held hearings, and determined that there was insufficient time to formulate a final plan before the August 1975 primary. It therefore adopted a temporary plan that was substantially similar to both the 1971 court-ordered plan previously vacated by this Court and the 1975 legislative plan challenged by the Attorney General. And, once again, despite our admonitions in Connor v. Johnson, 402 U.S., at 692, 91 S.Ct. 1760, and Connor v. Williams, supra, at 551, 92 S.Ct. 656, the court's plan relied heavily on multimember districts.1
15
In imposing these temporary measures, the District Court professed its intent to avoid unnecessary delay in preparing a permanent plan for the 1979 state elections. The court's actions, however, belied that representation. On August 1, 1975, the court refused to establish a deadline for approval of a final plan, although it articulated "its firm determination to have this matter out of the way before February 1, 1976." App. to Pet. for Mandamus in Connor v. Coleman, O.T.1975, No. 75-1184, p. 4a. On January 26, 1976, the United States moved to set February 10, 1976, as the date for a hearing on the permanent plan. The court, however, denied the motion and deferred further deliberations until this Court decided three pending cases involving reapportionment issues. See Connor v. Coleman, 425 U.S., at 678, 96 S.Ct. 1814.2
16
On May 19, 1976, after two of the three cases had been decided, we allowed the plaintiffs to file a petition for a writ of mandamus, and directed the District Court to
17
"carry out the assurance given in its order of January
18
29, 1976 to 'bring this case to trial forthwith . . .' and schedule a hearing to be held within 30 days on all proposed permanent reapportionment plans to the end of entering a final judgment embodying a permanent plan reapportioning the Mississippi Legislature in accordance with law to be applicable to the election of legislators in the 1979 quadrennial elections, and also ordering any necessary special elections to be held to coincide with the November 1976 Presidential and congressional elections, or in any event at the earliest practicable date thereafter." Id., at 679, 96 S.Ct. 1814.
19
The District Court thereupon held the required hearing and entered a judgment adopting a final plan.
20
This Court reversed the judgment on direct appeal, finding that the plan "fail[ed] to meet the most elemental requirement of the Equal Protection Clause in this area—that legislative districts be 'as nearly of equal population as is practicable.' " Connor v. Finch, 431 U.S., at 409-410, 97 S.Ct. 1828 (citations omitted); (emphasis added). In spite of our previous holding that court-ordered reapportionment plans ordinarily must achieve population equality with only de minimis variation,3 our invalidation of legislative reapportionments with variations of 5.97%, and 13.1%,4 and our strong suggestion in Connor v. Williams, 404 U.S., at 550, 92 S.Ct. 656, that variations near 20% were unacceptable, the District Court's plan countenanced maximum population deviations of 16.5% in the senate districts and 19.3% in the house districts. While the District Court had justified these excessive deviations as preservative of existing political boundaries, this Court found that the plaintiffs had submitted an alternative plan that better served the state policy against fragmenting county boundaries and came closer to achieving population equality. 431 U.S., at 420, 97 S.Ct. 1828. Moreover, we observed that
21
"unexplained departures from the results that might have been expected to flow from the District Court's own neutral guidelines can lead, as they did here, to a charge that the departures are explicable only in terms of a purpose to minimize the voting strength of a minority group." Id., at 425, 97 S.Ct. 1828.
22
Without stating explicitly whether such charges were justified, we directed the court to draw legislative districts that were "reasonably contiguous and compact . . . or explain precisely why in a particular instance that goal cannot be accomplished." Id., at 425-426, 97 S.Ct. 1828. Finally, we insisted in no uncertain terms that the District Court resolve this litigation forthwith, stating:
23
"The task facing the District Court on remand must be approached not only with great care, but with a compelling awareness of the need for its expeditious accomplishment, so that the citizens of Mississippi at long last will be enabled to elect a legislature that properly represents them." Id., at 426, 97 S.Ct. 1828.
24
On remand, the parties submitted proposed plans to the District Court. A trial began on November 21, 1977, and concluded on February 14, 1978. Approximately two months later, in April 1978, the Mississippi Legislature enacted a new reapportionment plan, which was filed with the Attorney General. The Attorney General registered his objection on July 31, 1978, and the next day, the State brought suit in the District Court for the District of Columbia seeking a declaratory judgment that the apportionment Act did not have a discriminatory purpose or effect.
25
Meanwhile, in May 1978, a Special Master previously appointed by the court below filed a final plan. The court ordered a settlement conference in June, and a plan was developed on which all parties agreed.5 On August 2, however, the defendants filed a motion, opposed by the other parties, to stay the proceedings until the conclusion of the § 5 litigation. Thereafter, in September, the negotiations broke down when the State insisted that the parties agree not to introduce the settlement plan as evidence before the District of Columbia court.
26
On October 12, 1978, the plaintiffs requested the District Court to enter final judgment implementing the settlement plan. At a hearing on November 29, 1978, the court, relying on Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978), stated it would "not rush in with a court-ordered plan . . . when a legislative plan [was] pending." Tr. 3-4 (emphasis added). The court therefore set no deadlines for disposition of the plans before it. When counsel observed that Connor v. Finch, 431 U.S., at 426, 97 S.Ct. 1828, required expeditious action, the District Court appeared to conclude that the intervening actions of the Mississippi Legislature had somehow dissolved the mandate of this Court. Tr. 11-12.
27
The District Court reiterated at a hearing on January 2, 1979, that "purely on the authority of Wise v. Lipscomb, . . . we've been waiting to see what the District Court in the District of Columbia would do about the legislative plan." Id., at 7. In their response to petitioners' motion, the judges of the District Court have assured us that if the D.C. court has not acted by May 7, 1979, 31 days before the June 7 filing deadline for the primary elections, they will implement a court-ordered plan.
28
However, even assuming the District Court met its May 7 deadline, the delay would effectively preclude meaningful review by this Court prior to the August primaries. Given the "painfully protracted" course of this litigation, Connor v. Finch, supra, at 410, 97 S.Ct. 1828, and the dismal record of the District Court, I believe that foreclosing appellate review of its plan before the 1979 primary elections would simply afford the District Court another opportunity to disregard our mandates. Furthermore, the District Court's justifications for its latest procrastination are as unfounded as those it has previously invoked to evade its judicial responsibilities.
29
Wise v. Lipscomb provides no excuse for ignoring our express directive in Connor v. Finch, supra. To be sure, Mr. Justice WHITE's opinion in Lipscomb, which was joined by Mr. Justice STEWART, noted that a federal court should give a state legislature a "reasonable opportunity" to fashion an acceptable plan before formulating one itself. 437 U.S., at 540, 98 S.Ct. 2493. But this was no novel legal principle. Indeed, the District Court had relied on a similar statement in Chapman v. Meier, 420 U.S., at 27, 95 S.Ct. 751, when it stayed the proceedings in 1975 and then approved the legislature's plan. See supra, at 616. Especially in light of this prior deference, the Mississippi Legislature has had a reasonable opportunity to formulate an acceptable plan over the 13 years of this litigation. In any case, implementation of a court-ordered plan at this point will effect a minimal intrusion on state prerogatives. The legislators have already indicated their provisional approval of the settlement plan, which is one of the options available to the court. See n. 5, supra. And, if the D.C. court sustains the legislature's reapportionment, that plan, unless stayed by this Court pending appeal, would supersede whatever plan the Mississippi District Court imposes and would govern the 1979 election. The District Court could easily minimize any inconvenience in the transition by implementing the settlement plan, which largely tracks the 1978 statutory reapportionment with respect to the majority of the legislative districts. Pet. for Mandamus 10 n. 2; Reply Brief for Petitioners 2-3.6 Moreover, any administrative difficulties would not justify imposition of another temporary, constitutionally infirm plan, as occurred in previous elections.
30
Nor is there merit to the suggestion that the federal court will exceed its judicial function by formulating a plan before resolution of the § 5 litigation. The argument disregards, as the District Court apparently did, Mr. Justice WHITE's statement in Lipscomb:
31
"Legislative bodies should not leave their reapportionment tasks to the federal courts; but when those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the 'unwelcome obligation,' Connor v. Finch, supra, [431 U.S.] at 415, [97 S.Ct. 1828] of the federal court to devise and impose a reapportionment plan pending later legislative action.
32
* * * * *
33
". . . A new reapportionment plan enacted by a State, including one purportedly adopted in response to invalidation of the prior plan by a federal court, will not be considered 'effective as law' . . . until it has been submitted and has received clearance under § 5. . . . Pending such submission and clearance, if a State's electoral processes are not to be completely frustrated, federal courts will at times necessarily be drawn further into the reapportionment process and required to devise and implement their own plans." 437 U.S., at 540, 542, 98 S.Ct. 2493.
34
Awaiting the D.C. court's decision could well frustrate the State's electoral processes. Such a course would deny the plaintiffs and the United States an opportunity before the primary elections to have us review the reapportionment plan of a court that has proved demonstrably reluctant to follow our decisions. To permit this delay would further compromise the rights of Mississippi voters by requiring that special elections for vacancies be conducted under ad hoc adaptations of the court's invalid 1975 plan. See, e. g., Brief for United States 14; Reply Brief for Petitioners 2 n. 2.
35
I believe that the District Court's reliance on Wise v. Lipscomb is a transparent attempt to avoid the unequivocal command of this Court. Such intransigence, particularly after 13 years of malfeasance, warrants extraordinary sanctions. As we have previously held:
36
"When a lower federal court refuses to give effect to, or misconstrues our mandate, its action may be controlled by this court, either upon a new appeal or by writ of mandamus. . . . It is well understood that this court has power to do all that is necessary to give effect to its judgments." Baltimore & Ohio R. Co. v. United States, 279 U.S. 781, 785, 49 S.Ct. 492, 73 L.Ed. 954 (1929).
37
Accord, United States v. Haley, 371 U.S. 18, 83 S.Ct. 11, 9 L.Ed.2d 1 (1962).
38
The petition should be granted and mandamus should issue forthwith.
1
Forty-two of eighty-four house districts and 14 of 39 Senate districts were multimember. Brief for United States in Connor v. Coleman, O.T.1975, No. 75-1184, p. 9.
2
The three cases were United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976), and East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976).
3
Chapman v. Meier, 420 U.S. 1, 26-27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975).
4
Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969); Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969). Of course, legislative apportionments are entitled to greater deference than court-ordered plans. Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977); Wise v. Lipscomb, 437 U.S. 535, 541, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978).
5
The Joint Apportionment Committee of the Mississippi Legislature polled both houses and determined that a substantial majority of legislators favored the settlement plan if the statutory plan did not receive § 5 clearance. Pet. for Mandamus 10.
6
Significant differences remain, however, regarding the number of Negro majority districts under the respective plans. Id., at 10-11, n. 2.
| 12
|
440 U.S. 648
99 S.Ct. 1391
59 L.Ed.2d 660
State of DELAWARE, Petitioner,v.William J. PROUSE, III.
No. 77-1571.
Argued Jan. 17, 1979.
Decided March 27, 1979.
Syllabus
A patrolman in a police cruiser stopped an automobile occupied by respondent and seized marihuana in plain view on the car floor. Respondent was subsequently indicted for illegal possession of a controlled substance. At a hearing on respondent's motion to suppress the marihuana, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver's license and the car's registration. The patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State Attorney General. The trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the Fourth Amendment. The Delaware Supreme Court affirmed. Held:
1. This Court has jurisdiction in this case even though the Delaware Supreme Court held that the stop at issue not only violated the Federal Constitution but also was impermissible under the Delaware Constitution. That court's opinion shows that even if the State Constitution would have provided an adequate basis for the judgment below, the court did not intend to rest its decision independently on the State Constitution, its holding instead depending upon its view of the reach of the Fourth and Fourteenth Amendments. Pp. 651-653.
2. Except where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. Pp. 653-663.
(a) Stopping an automobile and detaining its occupants constitute a "seizure" within the meaning of the Fourth and Fourteenth Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Pp. 653-655. (b) The State's interest in discretionary spot checks as a means of ensuring the safety of its roadways does not outweigh the resulting intrusion on the privacy and security of the persons detained. Given the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents, cf. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607; United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116, the marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure at the unbridled discretion of law enforcement officials. Pp. 655-661.
(c) An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. People are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalk; nor are they shorn of those interests when they step from the sidewalks into their automobiles. Pp. 662-663.
(d) The holding in this case does not preclude Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. P. 663.
382 A.2d 1359, affirmed.
Charles M. Oberly, III, Wilmington, Del., for petitioner.
David M. Lukoff, Wilmington, Del., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question is whether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop an automobile, being driven on a public highway, for the purpose of checking the driving license of the operator and the registration of the car, where there is neither probable cause to believe nor reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable law.
2
* At 7:20 p. m. on November 30, 1976, a New Castle County, Del., patrolman in a police cruiser stopped the automobile occupied by respondent.1 The patrolman smelled marihuana smoke as he was walking toward the stopped vehicle, and he seized marihuana in plain view on the car floor. Respondent was subsequently indicted for illegal possession of a controlled substance. At a hearing on respondent's motion to suppress the marihuana seized as a result of the stop, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver's license and registration. The patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State Attorney General. Characterizing the stop as "routine," the patrolman explained, "I saw the car in the area and wasn't answering any complaints, so I decided to pull them off." App. A9. The trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the Fourth Amendment.
3
The Delaware Supreme Court affirmed, noting first that "[t]he issue of the legal validity of systematic, roadblock-type stops of a number of vehicles for license and vehicle registration check is not now before the Court," 382 A.2d 1359, 1362 (1978) (emphasis in original). The court held that "a random stop of a motorist in the absence of specific articulable facts which justify the stop by indicating a reasonable suspicion that a violation of the law has occurred is constitutionally impermissible and violative of the Fourth and Fourteenth Amendments to the United States Constitution." Id., at 1364. We granted certiorari to resolve the conflict between this decision, which is in accord with decisions in five other jurisdictions,2 and the contrary determination in six jurisdictions3 that the Fourth Amendment does not prohibit the kind of automobile stop that occurred here. 439 U.S. 816, 99 S.Ct. 76, 58 L.Ed.2d 107 (1978).
II
4
Because the Delaware Supreme Court held that the stop at issue not only violated the Federal Constitution but also was impermissible under Art. I, § 6, of the Delaware Constitution, it is urged that the judgment below was based on an independent and adequate state ground and that we therefore have no jurisdiction in this case. Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935). At least, it is suggested, the matter is sufficiently uncertain that we should remand for clarification as to the ground upon which the judgment rested. California v. Krivda, 409 U.S. 33, 35, 93 S.Ct. 32, 33, 34 L.Ed.2d 45 (1972). Based on our reading of the opinion, however, we are satisfied that even if the State Constitution would have provided an adequate basis for the judgment, the Delaware Supreme Court did not intend to rest its decision independently on the State Constitution and that we have jurisdiction of this case.
5
As we understand the opinion below, Art. I, § 6, of the Delaware Constitution will automatically be interpreted at least, as broadly as the Fourth Amendment;4 that is, every police practice authoritatively determined to be contrary to the Fourth and Fourteenth Amendments will, without further analysis, be held to be contrary to Art. I, § 6. This approach, which is consistent with previous opinions of the Delaware Supreme Court,5 was followed in this case. The court analyzed the various decisions interpreting the Federal Constitution, concluded that the Fourth Amendment foreclosed spot checks of automobiles, and summarily held that the State Constitution was therefore also infringed. This is one of those cases where "at the very least, the [state] court felt compelled by what it understood to be federal constitutional considerations to construe . . . its own law in the manner it did." Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568, 97 S.Ct. 2849, 2853, 53 L.Ed.2d 965 (1977). Had state law not been mentioned at all, there would be no question about our jurisdiction, even though the State Constitution might have provided an independent and adequate state ground. Ibid. The same result should follow here where the state constitutional holding depended upon the state court's view of the reach of the Fourth and Fourteenth Amendments. If the state court misapprehended federal law, "[i]t should be freed to decide . . . these suits according to its own local law." Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 5, 71 S.Ct. 1, 3, 95 L.Ed. 3 (1950).
III
6
The Fourth and Fourteenth Amendments are implicated in this case because stopping an automobile and detaining its occupants constitute a "seizure" within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. United States v. Martinez-Fuerte, 428 U.S. 543, 556-558, 96 S.Ct. 3074, 3082-3083, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); cf. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of "reasonableness"6 upon the exercise of discretion by government officials, including law enforcement agents, in order " 'to safeguard the privacy and security of individuals against arbitrary invasions . . . .' " Marshall v. Barlow's, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 1820 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967).7 Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.8 Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against "an objective standard,"9 whether this be probable cause10 or a less stringent test.11 In those situations in which the balance of interests precludes insistence upon "some quantum of individualized suspicion,"12 other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not "subject to the discretion of the official in the field," Camara v. Municipal Court, 387 U.S., at 532, 87 S.Ct., at 1733. See id., at 534-535, 87 S.Ct. at 1733-1734; Marshall v. Barlow's, Inc., supra, 436 U.S. at 320-321, 98 S.Ct. at 1824-1825; United States v. United States District Court, 407 U.S. 297, 322-323, 92 S.Ct. 2125, 2139, 32 L.Ed.2d 752 (1972) (requiring warrants).
7
In this case, however, the State of Delaware urges that patrol officers be subject to no constraints in deciding which automobiles shall be stopped for a license and registration check because the State's interest in discretionary spot checks as a means of ensuring the safety of its roadways outweighs the resulting intrusion on the privacy and security of the persons detained.
IV
8
We have only recently considered the legality of investigative stops of automobiles where the officers making the stop have neither probable cause to believe nor reasonable suspicion that either the automobile or its occupants are subject to seizure under the applicable criminal laws. In United States v. Brignoni-Ponce, supra, Border Patrol agents conducting roving patrols in areas near the international border asserted statutory authority to stop at random any vehicle in order to determine whether it contained illegal aliens or was involved in smuggling operations. The practice was held to violate the Fourth Amendment, but the Court did not invalidate all warrantless automobile stops upon less than probable cause. Given "the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border," 422 U.S. at 881, 95 S.Ct. at 2580, the Court analogized the roving-patrol stop to the on-the-street encounter addressed in Terry v. Ohio, supra, and held:
9
"Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." 422 U.S., at 884, 95 S.Ct., at 2582 (footnote omitted).
10
Because "the nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators," id., at 883, 95 S.Ct. at 2581, "a requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference." Ibid.
11
The constitutionality of stops by Border Patrol agents was again before the Court in United States v. Martinez-Fuerte, supra, in which we addressed the permissibility of checkpoint operations. This practice involved slowing all oncoming traffic "to a virtual, if not a complete, halt," 428 U.S., at 546, 96 S.Ct., at 3078, at a highway roadblock, and referring vehicles chosen at the discretion of Border Patrol agents to an area for secondary inspection. See id., at 546, 558, 96 S.Ct., at 3077, 3083. Recognizing that the governmental interest involved was the same as that furthered by roving-patrol stops, the Court nonetheless sustained the constitutionality of the Border Patrol's checkpoint operations. The crucial distinction was the lesser intrusion upon the motorist's Fourth Amendment interests:
12
"[The] objective intrusion—the stop itself, the questioning, and the visual inspection—also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion—the generating of concern or even fright on the part of lawful travelers—is appreciably less in the case of a checkpoint stop." Id., at 558, 96 S.Ct. at 3083.
13
Although not dispositive,13 these decisions undoubtedly provide guidance in balancing the public interest against the individual's Fourth Amendment interests implicated by the practice of spot checks such as occurred in this case. We cannot agree that stopping or detaining a vehicle on an ordinary city street is less intrusive than a roving-patrol stop on a major highway and that it bears greater resemblance to a permissible stop and secondary detention at a checkpoint near the border. In this regard, we note that Brignoni-Ponce was not limited to roving-patrol stops on limited-access roads, but applied to any roving-patrol stop by Border Patrol agents on any type of roadway on less than reasonable suspicion. See 422 U.S. at 882-883, 95 S.Ct. at 2580-2581; United States v. Ortiz, 422 U.S. 891, 894, 95 S.Ct. 2585, 2587, 45 L.Ed.2d 623 (1975). We cannot assume that the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents is of any less moment than that occasioned by a stop by border agents on roving patrol. Both of these stops generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority. Both interfere with freedom of movement, are inconvenient, and consume time. Both may create substantial anxiety. For Fourth Amendment purposes, we also see insufficient resemblance between sporadic and random stops of individual vehicles making their way through city traffic and those stops occasioned by roadblocks where all vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police power of the community. "At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion." Id., 422 U.S., at 894-895, 95 S.Ct., at 2588, quoted in United States v. Martinez-Fuerte, 428 U.S., at 558, 96 S.Ct., at 3083.
V
14
But the State of Delaware urges that even if discretionary spot checks such as occurred in this case intrude upon motorists as much as or more than do the roving patrols held impermissible in Brignoni-Ponce, these stops are reasonable under the Fourth Amendment because the State's interest in the practice as a means of promoting public safety upon its roads more than outweighs the intrusion entailed. Although the record discloses no statistics concerning the extent of the problem of lack of highway safety, in Delaware or in the Nation as a whole, we are aware of the danger to life14 and property posed by vehicular traffic and of the difficulties that even a cautious and an experienced driver may encounter. We agree that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed. Automobile licenses are issued periodically to evidence that the drivers holding them are sufficiently familiar with the rules of the road and are physically qualified to operate a motor vehicle.15 The registration requirement and, more pointedly, the related annual inspection requirement in Delaware16 are designed to keep dangerous automobiles off the road. Unquestionably, these provisions, properly administered, are essential elements in a highway safety program. Furthermore, we note that the State of Delaware requires a minimum amount of insurance coverage as a condition to automobile registration,17 implementing its legitimate interest in seeing to it that its citizens have protection when involved in a motor vehicle accident.18
15
The question remains, however, whether in the service of these important ends the discretionary spot check is a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail. On the record before us, that question must be answered in the negative. Given the alternative mechanisms available, both those in use and those that might be adopted, we are unconvinced that the incremental contribution to highway safety of the random spot check justifies the practice under the Fourth Amendment.
16
The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained. Furthermore, drivers without licenses are presumably the less safe drivers whose propensities may well exhibit themselves.19 Absent some empirical data to the contrary, it must be assumed that finding an unlicensed driver among those who commit traffic violations is a much more likely event than finding an unlicensed driver by choosing randomly from the entire universe of drivers. If this were not so, licensing of drivers would hardly be an effective means of promoting roadway safety. It seems common sense that the percentage of all drivers on the road who are driving without a license is very small and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be large indeed. The contribution to highway safety made by discretionary stops selected from among drivers generally will therefore be marginal at best. Furthermore, and again absent something more than mere assertion to the contrary, we find it difficult to believe that the unlicensed driver would not be deterred by the possibility of being involved in a traffic violation or having some other experience calling for proof of his entitlement to drive but that he would be deterred by the possibility that he would be one of those chosen for a spot check. In terms of actually discovering unlicensed drivers or deterring them from driving, the spot check does not appear sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment.
17
Much the same can be said about the safety aspects of automobiles as distinguished from drivers. Many violations of minimum vehicle-safety requirements are observable, and something can be done about them by the observing officer, directly and immediately. Furthermore, in Delaware, as elsewhere, vehicles must carry and display current license plates,20 which themselves evidence that the vehicle is properly registered;21 and, under Delaware law, to qualify for annual registration a vehicle must pass the annual safety inspection22 and be properly insured.23 It does not appear, therefore, that a stop of a Delaware-registered vehicle is necessary in order to ascertain compliance with the State's registration requirements; and, because there is nothing to show that a significant percentage of automobiles from other States do not also require license plates indicating current registration, there is no basis for concluding that stopping even out-of-state cars for document checks substantially promotes the State's interest.
18
The marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure—limited in magnitude compared to other intrusions but nonetheless constitutionally cognizable—at the unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion "would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . ." Terry v. Ohio, 392 U.S., at 22, 88 S.Ct., at 1880. By hypothesis, stopping apparently safe drivers is necessary only because the danger presented by some drivers is not observable at the time of the stop. When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations24—or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered—we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. Almeida-Sanchez v. United States, 413 U.S. 266, 270, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973); Camara v. Municipal Court, 387 U.S., at 532-533, 87 S.Ct., at 1733.
VI
19
The "grave danger" of abuse of discretion, United States v. Martinez-Fuerte, 428 U.S., at 559, 96 S.Ct., at 3083, does not disappear simply because the automobile is subject to state regulation resulting in numerous instances of police-citizen contact, Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973). Only last Term we pointed out that "if the government intrudes . . . the privacy interest suffers whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards." Marshall v. Barlow's, Inc., 436 U.S., at 312-313, 98 S.Ct., at 1820. There are certain "relatively unique circumstances," id., at 313, 98 S.Ct., at 1820, in which consent to regulatory restrictions is presumptively concurrent with participation in the regulated enterprise. See United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (federal regulation of firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (federal regulation of liquor). Otherwise, regulatory inspections unaccompanied by any quantum of individualized, articulable suspicion must be undertaken pursuant to previously specified "neutral criteria." Marshall v. Barlow's, Inc., supra, 436 U.S., at 323, 98 S.Ct., at 1826.
20
An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation.25 Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).
VII
21
Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion.26 Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. The judgment below is affirmed.
22
So ordered.
23
Mr. Justice BLACKMUN, with whom Mr. Justice POWELL joins, concurring.
24
The Court, ante, this page, carefully protects from the reach of its decision other less intrusive spot checks "that do not involve the unconstrained exercise of discretion." The roadblock stop for all traffic is given as an example. I necessarily assume that the Court's reservation also includes other not purely random stops (such as every 10th car to pass a given point) that equate with, but are less intrusive than, a 100% roadblock stop. And I would not regard the present case as a precedent that throws any constitutional shadow upon the necessarily somewhat individualized and perhaps largely random examinations by game wardens in the performance of their duties. In a situation of that type, it seems to me, the Court's balancing process, and the value factors under consideration, would be quite different.
25
With this understanding, I join the Court's opinion and its judgment.
26
Mr. Justice REHNQUIST, dissenting.
27
The Court holds, in successive sentences, that absent an articulable, reasonable suspicion of unlawful conduct, a motorist may not be subjected to a random license check, but that the States are free to develop "methods for spot checks that . . . do not involve the unconstrained exercise of discretion," such as "[q]uestioning . . . all oncoming traffic at roadblock-type stops . . . ." Ante, at 663. Because motorists, apparently like sheep, are much less likely to be "frightened" or "annoyed" when stopped en masse, a highway patrolman needs neither probable cause nor articulable suspicion to stop all motorists on a particular thoroughfare, but he cannot without articulable suspicion stop less than all motorists. The Court thus elevates the adage "misery loves company" to a novel role in Fourth Amendment jurisprudence. The rule becomes "curiouser and curiouser" as one attempts to follow the Court's explanation for it.
28
As the Court correctly points out, people are not shorn of their Fourth Amendment protection when they step from their homes onto the public sidewalks or from the sidewalks into their automobiles. But a random license check of a motorist operating a vehicle on highways owned and maintained by the State is quite different from a random stop designed to uncover violations of laws that have nothing to do with motor vehicles.* No one questions that the State may require the licensing of those who drive on its highways and the registration of vehicles which are driven on those highways. If it may insist on these requirements, it obviously may take steps necessary to enforce compliance. The reasonableness of the enforcement measure chosen by the State is tested by weighing its intrusion on the motorists' Fourth Amendment interests against its promotion of the State's legitimate interests. E. g., United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).
29
In executing this balancing process, the Court concludes that given the alternative mechanisms available, discretionary spot checks are not a "sufficiently productive mechanism" to safeguard the State's admittedly "vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed." Ante, at 659, 658. Foremost among the alternative methods of enforcing traffic and vehicle safety regulations, according to the Court, is acting upon observed violations, for "drivers without licenses are presumably the less safe drivers whose propensities may well exhibit themselves." Ante, at 659. Noting that "finding an unlicensed driver among those who commit traffic violations is a much more likely event than finding an unlicensed driver by choosing randomly from the entire universe of drivers," ibid., the Court concludes that the contribution to highway safety made by random stops would be marginal at best. The State's primary interest, however, is in traffic safety, not in apprehending unlicensed motorists for the sake of apprehending unlicensed motorists. The whole point of enforcing motor vehicle safety regulations is to remove from the road the unlicensed driver before he demonstrates why he is unlicensed. The Court would apparently prefer that the State check licenses and vehicle registrations as the wreckage is being towed away.
30
Nor is the Court impressed with the deterrence rationale, finding it inconceivable that an unlicensed driver who is not deterred by the prospect of being involved in a traffic violation or other incident requiring him to produce a license would be deterred by the possibility of being subjected to a spot check. The Court arrives at its conclusion without the benefit of a shred of empirical data in this record suggesting that a system of random spot checks would fail to deter violators. In the absence of such evidence, the State's determination that random stops would serve a deterrence function should stand.
31
On the other side of the balance, the Court advances only the most diaphanous of citizen interests. Indeed, the Court does not say that these interests can never be infringed by the State, just that the State must infringe them en masse rather than citizen by citizen. To comply with the Fourth Amendment, the State need only subject all citizens to the same "anxiety" and "inconvenien[ce]" to which it now subjects only a few.
32
For constitutional purposes, the action of an individual law enforcement officer is the action of the State itself, e. g., Ex parte Virginia, 100 U.S. 339, 346-347, 25 L.Ed. 676 (1880), and state acts are accompanied by a presumption of validity until shown otherwise. See, e. g., McDonald v. Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). Although a system of discretionary stops could conceivably be abused, the record before us contains no showing that such abuse is probable or even likely. Nor is there evidence in the record that a system of random license checks would fail adequately to further the State's interest in deterring and apprehending violators. Nevertheless, the Court concludes "[o]n the record before us" that the random spot check is not "a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail." Ante, at 659. I think that the Court's approach reverses the presumption of constitutionality accorded acts of the States. The burden is not upon the State to demonstrate that its procedures are consistent with the Fourth Amendment, but upon respondent to demonstrate that they are not. "On this record" respondent has failed to make such a demonstration.
33
Neither the Court's opinion, nor the opinion of the Supreme Court of Delaware, suggests that the random stop made in this case was carried out in a manner inconsistent with the Equal Protection Clause of the Fourteenth Amendment. Absent an equal protection violation, the fact that random stops may entail "a possibly unsettling show of authority," ante, at 657, and "may create substantial anxiety," ibid., seems an insufficient basis to distinguish for Fourth Amendment purposes between a roadblock stopping all cars and the random stop at issue here. Accordingly, I would reverse the judgment of the Supreme Court of Delaware.
1
In its opinion, the Delaware Supreme Court referred to respondent as the operator of the vehicle, see 382 A.2d 1359, 1361 (1978). However, the arresting officer testified: "I don't believe [respondent] was the driver. . . . As I recall, he was in the back seat . . . ," App. A12; and the trial court in its ruling on the motion to suppress referred to respondent as one of the four "occupants" of the vehicle, id., at A17. The vehicle was registered to respondent. Id., at A10.
2
United States v. Montgomery, 182 U.S.App.D.C. 426, 561 F.2d 875 (1977); People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (1975); State v. Ochoa, 23 Ariz.App. 510, 534 P.2d 441 (1975), rev'd on other grounds, 112 Ariz. 582, 544 P.2d 1097 (1976); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); United States v. Nicholas, 448 F.2d 622 (CA8 1971). See also United States v. Cupps, 503 F.2d 277 (CA6 1974).
3
State v. Holmberg, 194 Neb. 337, 231 N.W.2d 672 (1975); State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973); Palmore v. United States, 290 A.2d 573 (D.C.App.1972), aff'd on jurisdictional grounds only, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973); United States v. Jenkins, 528 F.2d 713 (CA10 1975); Myricks v. United States, 370 F.2d 901 (CA5), cert. dismissed, 386 U.S. 1015, 87 S.Ct. 1366, 18 L.Ed.2d 474 (1967).
4
The court stated:
"The Delaware Constitution Article I, § 6 is substantially similar to the Fourth Amendment and a violation of the latter is necessarily a violation of the former. 382 A.2d, at 1362, citing State v. Moore, 55 Del. 356, 187 A.2d 807 (1963).
Moore was decided less than two years after Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applied to the States the limitations previously imposed only on the Federal Government. In setting forth the approach reiterated in the opinion below, Moore noted not only the common purposes and wording of the Fourth Amendment and the state constitutional provision, but also the overriding effect of the former. See 55 Del., at 362-363, 187 A.2d, at 810-811.
5
We have found only one case decided after State v. Moore, supra, in which the court relied solely on state law in upholding the validity of a search or seizure, and that case involved not only Del.Const. Art. I, § 6, but also state statutory requirements for issuance of a search warrant. Rossitto v. State, Del., 234 A.2d 438 (1967). Moreover, every case holding a search or seizure to be contrary to the state constitutional provision relies on cases interpreting the Fourth Amendment and simultaneously concludes that the search or seizure is contrary to that provision. See, e. g., Young v. State, Del., 339 A.2d 723 (1975); Freeman v. State, Del., 317 A.2d 540 (1974); cf. Bertomeu v. State, Del., 310 A.2d 865 (1973).
6
See Marshall v. Barlow's, Inc., 436 U.S. 307, 315, 98 S.Ct. 1816, 1822 (1978); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973); Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930 (1967).
7
See also United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976); United States v. Ortiz, 422 U.S. 891, 895, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 270, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973); Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); McDonald v. United States, 335 U.S. 451, 455-456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).
8
See, e. g., United States v. Ramsey, 431 U.S. 606, 616-619, 97 S.Ct. 1972, 1979-1980, 52 L.Ed.2d 612 (1977); United States v. Martinez-Fuerte, supra, 428 U.S. at 555, 96 S.Ct. at 3081; cases cited in n. 6, supra.
9
Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1868. See also Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978); Beck v. Ohio, supra, 379 U.S. at 96-97, 85 S.Ct. at 228.
10
See, e. g., United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (warrantless arrests requiring probable cause); United States v. Ortiz, supra; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (warrantless searches requiring probable cause). See also Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).
11
See Terry v. Ohio, supra; United States v. Brignoni-Ponce, supra.
In addition, the Warrant Clause of the Fourth Amendment generally requires that prior to a search a neutral and detached magistrate ascertain that the requisite standard is met, see, e. g., Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 23 (1978).
12
United States v. Martinez-Fuerte, supra, 428 U.S. at 560, 96 S.Ct. at 3084.
13
In addressing the constitutionality of Border Patrol practices, we reserved the question of the permissibility of state and local officials stopping motorists for document questioning in a manner similar to checkpoint detention, see 428 U.S., at 560 n. 14, 96 S.Ct., at 3084, or roving-patrol operations, see United States v. Brignoni-Ponce, 422 U.S., at 883 n. 8, 95 S.Ct., at 2581 n. 8.
14
In 1977, 47,671 persons died in motor vehicle accidents in this country. U. S. Dept. of Transportation, Highway Safety A-9 (1977).
15
See, e. g., Del.Code Ann., Tit. 21, §§ 2701, 2707 (1974 and Supp. 1977); § 2713 (1974) (Department of Public Safety "shall examine the applicant as to his physical and mental qualifications to operate a motor vehicle in such manner as not to jeopardize the safety of persons or property . . . ").
16
§ 2143(a) (1974).
17
§ 2118 (Supp. 1977); State of Delaware, Department of Public Safety, Division of Motor Vehicles, Driver's Manual 60 (1976).
18
It has been urged that additional state interests are the apprehension of stolen motor vehicles and of drivers under the influence of alcohol or narcotics. The latter interest is subsumed by the interest in roadway safety, as may be the former interest to some extent. The remaining governmental interest in controlling automobile thefts is not distinguishable from the general interest in crime control.
19
Cf. United States v. Brignoni-Ponce, supra, 422 U.S., at 883, 95 S.Ct., at 2581.
20
Del.Code Ann., Tit. 21, § 2126 (1974).
21
§§ 2121(b), (d) (1974).
22
See n. 16, supra ; § 2109 (1974).
23
See n. 17, supra ; § 2109 (1974).
24
See, e. g., §§ 4101-4199B (1974 and Supp. 1977).
25
Cf. Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) (warrant required for federal inspection under interstate commerce power of health and safety of workplace); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) (warrant required for inspection of warehouse for municipal fire code violations); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (warrant required for inspection of residence for municipal fire code violations).
26
Nor does our holding today cast doubt on the permissibility of roadside truck weigh-stations and inspection checkpoints, at which some vehicles may be subject to further detention for safety and regulatory inspection than are others.
*
Indeed, this distinction was expressly recognized in United States v. Brignoni-Ponce, 422 U.S. 873, 883 n. 8, 95 S.Ct. 2574, 2581 n. 8, 45 L.Ed.2d 607 (1975):
"Our decision in this case takes into account the special function of the Border Patrol, the importance of the governmental interests in policing the border area, the character of roving-patrol stops, and the availability of alternatives to random stops unsupported by reasonable suspicion. Border Patrol agents have no part in enforcing laws that regulate highway use, and their activities have nothing to do with an inquiry whether motorists and their vehicles are entitled, by virtue of compliance with laws governing highway usage, to be upon the public highways. Our decision thus does not imply that state and local enforcement agencies are without power to conduct such limited stops as are necessary to enforce laws regarding drivers' licenses, vehicle registration, truck weights, and similar matters."
| 01
|
440 U.S. 668
99 S.Ct. 1403
59 L.Ed.2d 677
LEO SHEEP COMPANY et al., Petitioners,v.UNITED STATES et al.
No. 77-1686.
Argued Jan. 15, 16, 1979.
Decided March 27, 1979.
Syllabus.
The Union Pacific Act of 1862 granted public land to the Union Pacific Railroad for each mile of track that it laid, and this was done under a system whereby land surrounding the railroad right-of-way was divided into "checkerboard" blocks, with odd-numbered lots being granted to the railroad and even-numbered lots being reserved for the Government. Petitioners, the railroad's successors in fee to certain odd-numbered lots in Wyoming lying in the vicinity of a reservoir area used by the public for fishing and hunting, brought an action to quiet title against the United States after the Government had cleared a road across the Leo Sheep Co.'s land to afford the public access to the reservoir area. The District Court granted petitioners' motion for summary judgment, but the Court of Appeals reversed, holding that when Congress granted land to the Union Pacific Railroad, it implicitly reserved an easement to pass over the odd-numbered sections in order to reach the even-numbered sections held by the Government. Held: The Government does not have an implied easement to build a road across petitioners' land. Pp. 678-688.
(a) The tenuous relevance of the common-law doctrine of easement by necessity to the Government's asserted reserved right here is insufficient to overcome the inference prompted by the omission of any reference in the 1862 Act to such a right. Pp. 679-682.
(b) Nor does the canon of construction that, when grants to federal lands are at issue, any doubts "are resolved for the Government, not against it," Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 617, 98 S.Ct. 2002, 2010, 56 L.Ed.2d 570, support the Government's position, since such grants "are not to be so construed as to defeat the intent of the legislature," United States v. Denver & Rio Grande R. Co., 150 U.S. 1, 14, 14 S.Ct. 11, 15, 37 L.Ed. 975. Pp. 682-683.
(c) Nor is the Unlawful Inclosures of Public Lands Act of 1885 of any significance in this case, since petitioners' unwillingness to entertain a public road without compensation cannot be considered a violation of that Act, it having been recognized in Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260, that obstruction of access to even-numbered lots by individually fenced odd-numbered lots was not a violation of the Act. Pp. 683-687.
570 F.2d 881, reversed.
Clyde O. Martz, Denver, Colo., for petitioners.
Sara S. Beale, Detroit, Mich., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
This is one of those rare cases evoking episodes in this country's history that, if not forgotten, are remembered as dry facts and not as adventure. Admittedly the issue is mundane: Whether the Government has an implied easement to build a road across land that was originally granted to the Union Pacific Railroad under the Union Pacific Act of 1862—a grant that was part of a governmental scheme to subsidize the construction of the transcontinental railroad. But that issue is posed against the backdrop of a fascinating chapter in our history. As this Court noted in another case involving the Union Pacific Railroad, "courts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it." United States v. Union Pacific R. Co., 91 U.S. 72, 79, 23 L.Ed. 224 (1875). In this spirit we relate the events underlying passage of the Union Pacific Act of 1862.
2
* The early 19th century—from the Louisiana Purchase in 1803 to the Gadsden Purchase in 1853—saw the acquisition of the territory we now regard as the American West.1 During those years, however, the area remained a largely untapped resource, for the settlers on the eastern seaboard of the United States did not keep pace with the rapidly expanding western frontier. A vaguely delineated area forbiddingly referred to as the "Great American Desert" can be found on more than one map published before 1850, embracing much of the United States' territory west of the Missouri River. As late as 1860, for example, the entire population of the State of Nebraska was less than 30,000 persons, which represented one person for every five square miles of land area within the State.
3
With the discovery of gold at Sutter's Mill in California in 1848, the California gold rush began and with it a sharp increase in settlement of the West. Those in the East with visions of instant wealth, however, confronted the unenviable choice among an arduous 4-month overland trek, risking yellow fever on a 35-day voyage via the Isthmus of Panama, and a better than 4-month voyage around Cape Horn. They obviously yearned for another alternative, and interest focused on the transcontinental railroad.
4
The idea of a transcontinental railroad predated the California gold rush. From the time that Asa Whitney had proposed a relatively practical plan for its construction in 1844, it had, in the words of one of this century's leading historians of the era, "engaged the eager attention of promoters and politicians until dozens of schemes were in the air."2 The building of the railroad was not to be the unalloyed product of the free-enterprise system. There was indeed the inspiration of men like Thomas Durant and Leland Stanford and the perspiration of a generation of immigrants, but animating it all was the desire of the Federal Government that the West be settled. This desire was intensified by the need to provide a logistical link with California in the heat of the Civil War. That the venture was much too risky and much too expensive for private capital alone was evident in the years of fruitless exhortation; private investors would not move without tangible governmental inducement.3
5
In the mid-19th century there was serious disagreement as to the forms that inducement could take. Mr. Justice Story, in his Commentaries on the Constitution, described one extant school of thought which argued that "internal improvements," such as railroads, were not within the enumerated constitutional powers of Congress.4 Under such a theory, the direct subsidy of a transcontinental railroad was constitutionally suspect—an uneasiness aggravated by President Andrew Jackson's 1830 veto of a bill appropriating funds to construct a road from Maysville to Lexington within the State of Kentucky.5
6
The response to this constitutional "gray" area, and source of political controversy, was the "checkerboard" land-grant scheme. The Union Pacific Act of 1862 granted public land to the Union Pacific Railroad for each mile of track that it laid.6 Land surrounding the railway right-of-way was divided into "checkerboard" blocks. Odd-numbered lots were granted to the Union Pacific; even-numbered lots were reserved by the Government. As a result, Union Pacific land in the area of the right-of-way was usually surrounded by public land, and vice versa. The historical explanation for this peculiar disposition is that it was apparently an attempt to disarm the "internal improvement" opponents by establishing a grant scheme with "demonstrable" benefits. As one historian notes in describing an 1827 federal land grant intended to facilitate private construction of a road between Columbus and Sandusky, Ohio:
7
"Though awkwardly stated, and not fully developed in the Act of 1827, this was the beginning of a practice to be followed in most future instances of granting land for the construction of specific internal improvements: donating alternate sections or one half of the land within a strip along the line of the project and reserving the other half for sale. . . . In later donations the price of the reserved sections was doubled so that it could be argued, as the Congressional Globe shows ad infinitum, that by giving half the land away and thereby making possible construction of the road, canal, or railroad, the government would recover from the reserved sections as much as it would have received from the whole." P. Gates, History of Public Land Law Development 345-346 (1968).7
8
In 1850 this technique was first explicitly employed for the subsidization of a railroad when the Illinois delegation in Congress, which included Stephen A. Douglas, secured the enactment of a bill that granted public lands to aid the construction of the Illinois Central Railroad.8 The Illinois Central and proposed connecting lines to the south were granted nearly three million acres along rights of way through Illinois, Mississippi, and Alabama, and by the end of 1854 the main line of the Illinois Central from Chicago to Cairo, Ill., had been put into operation. Before this line was constructed, public lands had gone begging at the Government's minimum price; within a few years after its completion, the railroad had disposed of more than one million acres and was rapidly selling more at prices far above those at which land had been originally offered by the Government.
9
The "internal improvements" theory was not the only obstacle to a transcontinental railroad. In 1853 Congress had appropriated moneys and authorized Secretary of War Jefferson Davis to undertake surveys of various proposed routes for a transcontinental railroad. Congress was badly split along sectional lines on the appropriate location of the route—so badly split that Stephen A. Douglas, now a Senator from Illinois, in 1854 suggested the construction of a northern, central, and southern route, each with connecting branches in the East.9 That proposal, however, did not break the impasse.
10
The necessary impetus was provided by the Civil War. Senators and Representatives from those States which seceded from the Union were no longer present in Congress, and therefore the sectional overtones of the dispute as to routes largely disappeared. Although there were no major engagements during the Civil War in the area between the Missouri River and the west coast which would be covered by any transcontinental railroad, there were two minor engagements which doubtless made some impression upon Congress of the necessity for being able to transport readily men and materials into that area for military purposes.
11
Accounts of the major engagements of the Civil War do not generally include the Battle of Picacho Pass, because in the words of Edwin Corle, author of The Gila, "[i]t could be called nothing more than a minor skirmish today."10 It was fought 42 miles northwest of Tucson, Ariz., on April 15, 1862, between a small contingent of Confederate cavalry commanded by Captain Sherod Hunter and Union troops under Colonel James H. Carleton consisting of infantry, cavalry, and artillery components known as the "California Volunteers." The battle was a draw, with the Union forces losing three men and the badly outnumbered Confederates apparently suffering two men killed and two captured. Following the battle, the Confederate forces abandoned Tucson, which they had previously occupied, and Carleton's Union forces entered that city on May 20, 1862.
12
The Battle of Glorieta Pass has similarly endured anonymity. Also described as La Glorieta Pass or Apache Canyon, Glorieta Pass lies in the upper valley of the Pecos River, in the southern foothills of the Sangre de Cristo range of the Rocky Mountains near Sante Fe, N. M. Here in the early spring of 1862 a regiment of Colorado volunteers, having moved by forced marches from Denver to Ft. Union, turned back Confederate forces led by Brigadier General Henry Sibley which, until this encounter, had marched triumphantly northward up the Rio Grande Valley from Ft. Bliss. As a result of the Battle of Glorieta Pass, New Mexico was saved for the Union, and Sibley's forces fell back in an easterly direction through Texas before the advance of Carleton's column of Californians.11
13
These engagements gave some immediacy to the comments of Congressman Edwards of New Hampshire during the debate on the Pacific Railroad bill:
14
"If this Union is to be preserved, if we are successfully to combat the difficulties around us, if we are to crush out this rebellion against the lawful authority of the Government, and are to have an entire restoration, it becomes us, with statesmanlike prudence and sagacity, to look carefully into the future, and to guard in advance against all possible considerations which may threaten the dismemberment of the country hereafter." Cong.Globe, 37th Cong., 2d Sess., 1703 (1862).
15
As is often the case, war spurs technological development, and Congress enacted the Union Pacific Act in May 1862. Perhaps not coincidentally, the Homestead Act was passed the same month.
16
The Union Pacific Act specified a route west from the 100th meridian, between a site in the Platte River Valley near the cities of Kearney and North Platte, Neb., to California. The original plan was for five eastern terminals located at various points on or near the Missouri River; but in fact Omaha was the only terminal built according to the plan.12
17
The land grants made by the Union Pacific Act included all the odd-numbered lots within 10 miles on either side of the track. When the Union Pacific's original subscription drive for private investment proved a failure, the land grant was doubled by extending the checkerboard grants to 20 miles on either side of the track. Private investment was still sluggish, and construction did not begin until July 1865, three months after the cessation of Civil War hostilities.13 Thus began a race with the Central Pacific Railroad, which was laying track eastward from Sacramento, for the Government land grants which went with each mile of track laid. The race culminated in the driving of the golden spike at Promontory, Utah, on May 10, 1869.
II
18
This case is the modern legacy of these early grants. Petitioners, the Leo Sheep Co. and the Palm Livestock Co., are the Union Pacific Railroad's successors in fee to specific oddnumbered sections of land in Carbon County, Wyo. These sections lie to the east and south of the Seminoe Reservoir, an area that is used by the public for fishing and hunting. Because of the checkerboard configuration, it is physically impossible to enter the Seminoe Reservoir sector from this direction without some minimum physical intrusion upon private land. In the years immediately preceding this litigation, the Government had received complaints that private owners were denying access over their lands to the reservoir area or requiring the payment of access fees. After negotiation with these owners failed, the Government cleared a dirt road extending from a local county road to the reservoir across both public domain lands and fee lands of the Leo Sheep Co. It also erected signs inviting the public to use the road as a route to the reservoir.
19
Petitioners initiated this action pursuant to 28 U.S.C. § 2409a to quiet title against the United States. The District Court granted petitioners' motion for summary judgment, but was reversed on appeal by the Court of Appeals for the Tenth Circuit. 570 F.2d 881. The latter court concluded that when Congress granted land to the Union Pacific Railroad, it implicitly reserved an easement to pass over the odd-numbered sections in order to reach the even-numbered sections that were held by the Government. Because this holding affects property rights in 150 million acres of land in the Western United States, we granted certiorari, 439 U.S. 817, 99 S.Ct. 78, 58 L.Ed.2d 108, and now reverse.
20
The Government does not claim that there is any express reservation of an easement in the Union Pacific Act that would authorize the construction of a public road on the Leo Sheep Co.'s property. Section 3 of the 1862 Act sets out a few specific reservations to the "checkerboard" grant. The grant was not to include land "sold, reserved, or otherwise disposed of by the United States," such as land to which there were homestead claims. 12 Stat. 492. Mineral lands were also excepted from the operation of the Act. Ibid. Given the existence of such explicit exceptions, this Court has in the past refused to add to this list by divining some "implicit" congressional intent. In Missouri, K. & T. R. Co. v. Kansas Pacific R. Co., 97 U.S. 491, 497, 24 L.Ed. 1095 (1878), for example, this Court in an opinion by Mr. Justice Field noted that the intent of Congress in making the Union Pacific grants was clear: "It was to aid in the construction of the road by a gift of lands along its route, without reservation of rights, except such as were specifically mentioned . . . ." The Court held that, although a railroad right-of-way under the grant may not have been located until years after 1862, by the clear terms of the Act only claims established prior to 1862 overrode the railroad grant; conflicting claims arising after that time could not be given effect. To overcome the lack of support in the Act itself, the Government here argues that the implicit reservation of the asserted easement is established by "settled rules of property law" and by the Unlawful Inclosures of Public Lands Act of 1885.
21
Where a private landowner conveys to another individual a portion of his lands in a certain area and retains the rest, it is presumed at common law that the grantor has reserved an easement to pass over the granted property if such passage is necessary to reach the retained property. These rights-of-way are referred to as "easements by necessity."14 There are two problems with the Government's reliance on that notion in this case. First of all, whatever right of passage a private landowner might have, it is not at all clear that it would include the right to construct a road for public access to a recreational area.15 More importantly, the easement is not actually a matter of necessity in this case because the Government has the power of eminent domain. Jurisdictions have generally seen eminent domain and easements by necessity as alternative ways to effect the same result. For example, the State of Wyoming no longer recognizes the common-law easement by necessity in cases involving landlocked estates. It provides instead for a procedure whereby the landlocked owner can have an access route condemned on his behalf upon payment of the necessary compensation to the owner of the servient estate.16 For similar reasons other state courts have held that the "easement by necessity" doctrine is not available to the sovereign.17
22
The applicability of the doctrine of easement by necessity in this case is, therefore, somewhat strained, and ultimately of little significance. The pertinent inquiry in this case is the intent of Congress when it granted land to the Union Pacific in 1862. The 1862 Act specifically listed reservations to the grant, and we do not find the tenuous relevance of the common-law doctrine of ways of necessity sufficient to overcome the inference prompted by the omission of any reference to the reserved right asserted by the Government in this case. It is possible that Congress gave the problem of access little thought; but it is at least as likely that the thought which was given focused on negotiation, reciprocity considerations, and the power of eminent domain as obvious devices for ameliorating disputes.18 So both as matter of common-law doctrine and as a matter of construing congressional intent, we are unwilling to imply rights-of-way, with the substantial impact that such implication would have on property rights granted over 100 years ago, in the absence of a stronger case for their implication than the Government makes here.
23
The Government would have us decide this case on the basis of the familiar canon of construction that, when grants to federal lands are at issue, any doubts "are resolved for the Government not against it." Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 617, 98 S.Ct. 2002, 2010, 56 L.Ed.2d 570 (1978). But this Court long ago declined to apply this canon in its full vigor to grants under the railroad Acts. In 1885 this Court observed:
24
"The solution of [ownership] questions [involving the railroad grants] depends, of course, upon the construction given to the acts making the grants; and they are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together." Winona & St. Peter R. Co. v. Barney, 113 U.S. 618, 625, 5 S.Ct. 606, 609, 28 L.Ed. 1109 (1885).
25
The Court harmonized the longstanding rule enunciated most recently in Andrus, supra, with the doctrine of Winona in United States v. Denver & Rio Grande R. Co., 150 U.S. 1, 14, 14 S.Ct. 11, 15-16, 37 L.Ed. 975 (1893) when it said:
26
"It is undoubtedly, as urged by the plaintiffs in error, the well-settled rule of this court that public grants are construed strictly against the grantees, but they are not to be so construed as to defeat the intent of the legislature, or to withhold what is given either expressly or by necessary or fair implication. . . .
27
". . . When an act, operating as a general law, and manifesting clearly the intention of Congress to secure public advantages, or to subserve the public interests and welfare by means of benefits more or less valuable, offers to individuals or to corporations as an inducement to undertake and accomplish great and expensive enterprises or works of a quasi public character in or through an immense and undeveloped public domain, such legislation stands upon a somewhat different footing from merely a private grant, and should receive at the hands of the court a more liberal construction in favor of the purposes for which it was enacted."
28
Thus, invocation of the canon reiterated in Andrus does little to advance the Government's position in this case.
29
Nor do we find the Unlawful Inclosures of Public Lands Act of 1885 of any significance in this controversy. That Act was a response to the "range wars," the legendary struggle between cattlemen and farmers during the last half of the 19th century. Cattlemen had entered Kansas, Nebraska, and the Dakota Territory before other settlers, and they grazed their herds freely on public lands with the Federal Government's acquiescence.19 To maintain their dominion over the ranges, cattlemen used homestead and pre-emption laws to gain control of water sources in the range lands. With monopoly control of such sources, the cattlemen found that ownership over a relatively small area might yield effective control of thousands of acres of grassland. Another exclusionary technique was the illegal fencing of public lands which was often the product of the checkerboard pattern of railroad grants. By placing fences near the borders of their parts of the checkerboard, cattlemen could fence in thousands of acres of public lands. Reports of the Secretary of the Interior indicated that vast areas of public grazing land had been pre-empted by such fencing patterns.20 In response Congress passed the Unlawful Inclosures Act of 1885.21
30
Section 1 of the Unlawful Inclosures Act states that "[a]ll inclosures of any public lands . . . constructed by any person . . . to any of which land included within the inclosure the person . . . had no claim or color of title made or acquired in good faith . . . are declared to be unlawful." 23 Stat. 321, 43 U.S.C. § 1061. Section 3 further provides:
31
"No person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to prevent or obstruct, any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, or shall prevent or obstruct free passage or transit over or through the public lands: Provided, This section shall not be held to affect the right or title of persons, who have gone upon, improved, or occupied said lands under the land laws of the United States, claiming title thereto, in good faith." 23 Stat. 322, 43 U.S.C. § 1063.
32
The Government argues that the prohibitions of this Act should somehow be read to include the Leo Sheep Co.'s refusal to acquiesce in a public road over its property, and that such a conclusion is supported by this Court's opinion in Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260 (1897). We find, however, that Camfield does not afford the support that the Government seeks. That case involved a fence that was constructed on odd-numbered lots so as to enclose 20,000 acres of public land, thereby appropriating it to the exclusive use of Camfield and his associates. This Court analyzed the fence from the perspective of nuisance law, and concluded that the Unlawful Inclosures Act was an appropriate exercise of the police power.
33
There is nothing, however, in the Camfield opinion to suggest that the Government has the authority asserted here. In fact, the Court affirmed the grantee's right to fence completely his own land.
34
"So long as the individual proprietor confines his enclosure to his own land, the Government has no right to complain, since he is entitled to the complete and exclusive enjoyment of it, regardless of any detriment to his neighbor; but when, under the guise of enclosing his own land, he builds a fence which is useless for that purpose, and can only have been intended to enclose the lands of the Government, he is plainly within the statute, and is guilty of an unwarrantable appropriation of that which belongs to the public at large." Id., at 528, 17 S.Ct., at 868.
35
Obviously, if odd-numbered lots are individually fenced, the access to even-numbered lots is obstructed. Yet the Camfield Court found that this was not a violation of the Unlawful Inclosures Act. In that light we cannot see how the Leo Sheep Co.'s unwillingness to entertain a public road without compensation can be a violation of that Act. It is certainly true that the problem we confront today was not a matter of great concern during the time the 1862 railroad grants were made. The order of the day was the open range—barbed wire had not made its presence felt—and the type of incursions on private property necessary to reach public land was not such an interference that litigation would serve any motive other than spite.22 Congress obviously believed that when development came, it would occur in a parallel fashion on adjoining public and private lands and that the process of subdivision, organization of a polity, and the ordinary pressures of commercial and social intercourse would work itself into a pattern of access roads.23 The Camfield case expresses similar sentiments. After the passage quoted above conceding the authority of a private landowner to fence the entire perimeter of his odd-numbered lot, the Court opined that such authority was of little practical significance "since a separate enclosure of each section would only become desirable when the country had been settled, and roads had been built which would give access to each section." Ibid. It is some testament to common sense that the present case is virtually unprecedented, and that in the 117 years since the grants were made, litigation over access questions generally has been rare.
36
Nonetheless, the present times are litigious ones and the 37th Congress did not anticipate our plight. Generations of land patents have issued without any express reservation of the right now claimed by the Government. Nor has a similar right been asserted before.24 When the Secretary of the Interior has discussed access rights, his discussion has been colored by the assumption that those rights had to be purchased.25 This Court has traditionally recognized the special need for certainty and predictability where land titles are concerned, and we are unwilling to upset settled expectations to accommodate some ill-defined power to construct public thoroughfares without compensation.26 The judgment of the Court of Appeals for the Tenth Circuit is accordingly
37
Reversed.
38
Mr. Justice WHITE took no part in the consideration or decision of this case.
1
Except as otherwise noted, this historical discussion draws on C. Ames, Pioneering the Union Pacific (1969); R. Athearn, Union Pacific Country (1971); R. Howard, The Great Iron Trail (1962); J. McMaster, A History of the People of the United States During Lincoln's Administration (1927); 2 A. Nevins, Ordeal of the Union (1947); H. White, History of the Union Pacific Railway (1895).
2
2 Nevins, supra n. 1, at 82.
3
That exhortation came from some of the great visionaries of the 19th century. On the floor of the House, Thomas Hart Benton compared eastern Kansas to Egypt and extolled the wealth that would be shared by a private railroad to California. Athearn, supra n. 1, at 22-23. Senator William H. Seward of New York, a man not known for his timidity, proclaimed "that a railroad is necessary, and ought to be built; and I think it has been scientifically demonstrated . . . that not only one such road is feasible, but that at least three, four, or five routes offer the necessary facilities for the security of this great object." Cong.Globe, 35th Cong., 1st Sess., 1584 (1858). In his book An Overland Journey, Horace Greeley was equally enthusiastic. He went so far as to calculate the economic feasibility of the proposed railroad line by estimating potential revenue, based on the value of current shipments of gold from California, passenger fares that could be obtained, and the cost to the Government of transporting and maintaining an army in the West and providing mail services. H. Greeley, An Overland Journey 310-316 (C. Duncan ed. 1964).
But despite his enthusiasm Greeley appreciated that the effort was beyond private capital alone. "The amount is too vast; the enterprise too formidable; the returns too remote and uncertain." "[W]hat assurance could an association of private citizens have that, having devoted their means and energies to the construction of such a road, it would not be rivaled and destroyed by a similar work on some other route?" Id., at 324.
4
2 J. Story, Commentaries on the Constitution 166-172 (5th ed. 1891). See Cong.Globe, 35th Cong., 2d Sess., 579-585 (1859) (Sen. Andrew Johnson).
5
2 J. Richardson, A Compilation of the Messages and Papers of the Presidents 1789-1897, pp. 483-493 (1896).
6
Act of July 1, 1862, 12 Stat. 489.
7
Government grants to aid the development of transportation facilities gained momentum during the administration of John Quincy Adams, who did not share Madison's and Monroe's reservations about the constitutionality of the Government's involvement in such activities. Checkerboard land grants achieved currency during the canal era. Apparently the first such grant was to aid construction of the Wabash and Erie Canal in Indiana. See P. Gates, History of Public Land Law Development 341-356 (1968).
8
Act of Sept. 20, 1850, 9 Stat. 466. This was not, however, the first time land grants were used to subsidize a railroad. In 1833, Congress permitted a grant that had been intended for canal construction to be used instead for the building of a railroad. Gates, supra n. 7, at 357.
9
Asa Whitney's original proposal had contemplated an eastern terminus on the south shore of Lake Michigan, and a western terminus in northern California or Oregon. Senator Gwin of California, a Southern sympathizer, urged a route running from Memphis through Ft. Smith and Albuquerque to Los Angeles. Thomas Hart Benton of Missouri, eschewing both the extreme northern and extreme southern routes, advocated "a great central national highway"—beginning in St. Louis. 2 Nevins, supra n. 1, at 82-83.
10
E. Corle, The Gila 232 (1951).
11
See generally M. Hall, Sibley's New Mexico Campaign (1960); W. Whitford, The Colorado Volunteers in the Civil War (1971). The Confederate forces in New Mexico have since been lauded for their courage, if not for their optimism. One Southern commander is reported to have responded to a Union demand for surrender: "We will fight first and surrender afterwards!" G. Harris, A Tale of Men Who Knew Not Fear 18 (1935).
12
The choice of the 100th meridian as the eastern end of the rail line was not without significance. The 100th meridian has been traditionally thought of as the parallel west of which it was impossible to raise most crops without irrigation. Omaha, for example, 300 miles to the east, receives an average of 25 inches of rainfall per year, while Sidney, Neb., west of the meridian and near the Wyoming line, receives an average of only 16 inches of rainfall each year. Thus, in a sense the 100th meridian represented, not only to travelers but also to potential settlers, the eastern boundary of the amorphous "Great American Desert."
"In general, historians have been content to postulate that American institutions, orientations, and habits of thought which developed east of the 100th meridian maintained their form and retained their content after reaching the West, whereas in fact a good many important ones did not. In the second place, historians have generally been ignorant of or incurious about natural conditions that determine life in the West, differentiate it from other sections, and have given it different orientations." Introduction of Bernard DeVoto to W. Stegner, Beyond the Hundredth Meridian xviii-xix (1954).
13
Construction would not have begun then without the Credit Mobilier, a limited-liability company that was essentially owned by the promoters and investors of the Union Pacific. One of these investors, Oakes Ames, a wealthy New England shovel maker, was a substantial investor in Credit Mobilier and also a Member of Congress. Credit Mobilier contracted with the Union Pacific to build portions of the road, and by 1866 several individuals were large investors in both corporations. Allegations of improper use of funds and bribery of Members of the House of Representatives led to the appointment of a special congressional investigatory committee that during 1872 and 1873 looked into the affairs of Credit Mobilier. These investigations revealed improprieties on the part of more than one Member of Congress, and the committee recommended that Ames be expelled from Congress. The investigation also touched on the career of a future President. See M. Leech & H. Brown, The Garfield Orbit (1978).
In 1872 the House of Representatives enacted a resolution condemning the policy of granting subsidies of public lands to railroads. Cong.Globe, 42d Cong., 2d Sess., 1585 (1872); see Great Northern R. Co. v. United States, 315 U.S. 262, 273-274, 62 S.Ct. 529, 533-534, 86 L.Ed. 836 (1942). Of course, the reaction of the public or of Congress a decade after the enactment of the Union Pacific Act to the conduct of those associated with the Union Pacific cannot influence our interpretation of that Act today.
14
See generally 3 R. Powell, Real Property ¶ 410 (1978). For a recent discussion and application of the "easement by necessity" doctrine, see Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 324 A.2d 247 (1973).
15
It is very unlikely that Congress in 1862 contemplated this type of intrusion, and it could not reasonably be maintained that failure to provide access to the public at large would render the Seminoe Reservoir land useless. Yet these are precisely the considerations that define the scope of easements by necessity. As one commentator relied on by the Government notes:
"As the name implies, these easements are the product of situations where the usefulness of land is at stake. The scope of the resultant easement embodies the best judgment of the court as to what is reasonably essential to the land's use. . . . Changes in the dominant parcel's use exert some, but not a great influence, in determining the scope of such easements." 3 Powell, supra n. 14, ¶ 416, pp. 34-203 to 34-204 (footnotes omitted). See, e. g., Higbee Fishing Club v. Atlantic City Electric Co., 78 N.J.Eq. 434, 79 A. 326 (1911) (footpath, not roadway, proper scope of easement where use of dominant estate as clubhouse could not have been contemplated by parties to original grant).
16
Wyo.Stat. §§ 24-9-101 to 24-9-104 (1977); see Snell v. Ruppert, 541 P.2d 1042, 1046 (Wyo.1975) (statute "offers complete relief to the shut-in landowner and covers the whole subject matter"; "[i]f a statute covers a whole subject matter, the abrogation of the common law on the same subject will necessarily be implied"). See also, e. g., Quinn v. Holly, 244 Miss. 808, 146 So.2d 357 (1962). In light of the history of public land grants related in Part I of this opinion, it is not surprising that "private" eminent domain statutes like that of Wyoming are most prevalent in the Western United States.
17
E. g., State v. Black Bros., 116 Tex. 615, 629-630, 297 S.W. 213, 218-219 (1927); see Pearne v. Coal Creek Min. & Mfg. Co., 90 Tenn. 619, 627-628, 18 S.W. 402, 404 (1891).
18
The intimations that can be found in the Congressional Globe are that there was no commonly understood reservation by the Government of the right to enter upon granted lands and construct a public road. Representative Cradlebaugh of Nevada offered an amendment to what became the Union Pacific Act of 1862 that would have reserved the right to the public to enter granted land and prospect for valuable minerals upon the payment of adequate compensation to the owner. The proposed amendment was defeated. The only Representative other than Cradlebaugh who spoke to it, Representative Sargent of California, stated:
"The amendment of the gentleman proposes to allow the public to enter upon the lands of any man, whether they be mineral lands or not, and prospect for gold and silver, and as compensation proposes some loose method of payment for the injuries inflicted. Now, sir, it may turn out that the man who thus commits the injuries may be utterly insolvent, not able to pay a dollar, and how is the owner of the property to be compensated for tearing down his dwellings, rooting up his orchards, and destroying his crops?" Cong.Globe, 37th Cong., 2d Sess., 1910 (1862).
In debates on an earlier Pacific Railroad bill it was explicitly suggested that there be "a reservation in every grant of land that [the Government] shall have a right to go through it, and take it at proper prices to be paid hereafter." The author of this proposal, Senator Simmons of Rhode Island, lamented the lack of such a reservation in the bill under consideration. Cong.Globe, 35th Cong., 2d Sess., 579 (1859). Apparently the intended purpose of this proposed reservation was to permit railroads to obtain rights-of-way through granted property at the Government's behest. Senator Simmons' comments are somewhat confused, but they certainly do not evince any prevailing assumption that the Government implicitly reserved a right-of-way through granted lands.
19
M. Clawson & B. Held, The Federal Lands 57-58, 84-85 (1957).
20
H.R.Rep. No. 1325, 48th Cong., 1st Sess. (1884). For example, in a letter to the House of Representatives the Secretary related two instances in Colorado where cattle companies fenced in more than one million acres each. Congressional concern was heightened by the fact that these and other cattle corporations were foreign owned. Id., at 2.
21
23 Stat. 321, as amended, 43 U.S.C. § 1061 et seq.
22
There were exceptions, one of which, Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618 (1890), reached this Court. See n. 24, infra.
23
This expectation was fostered by the general land-grant scheme. Each block in the checkerboard was a square mile—640 acres. The public lots were open to homesteading, with 160 acres the maximum allowable claim under the Homestead Act. Act of May 20, 1862, 12 Stat. 392. The Union Pacific was required by the 1862 Act to sell or otherwise dispose of the land granted to it within three years after completion of the entire road, with lands not so disposed of within that period subject to homesteading and pre-emption. Thus, in 1862, the process of subdivision was perceived, to a great degree, as inevitable.
During the 1850 debates concerning the Illinois Central Railroad, Senator Cass of Michigan outlined the dynamics that were presumed to underlie the system of checkerboard grants: "In all the new portions of the United States this Government owns a large proportion of the property. They sell it. They offer it for sale. It is surveyed, thrown into market, and emigration is invited. Tract after tract is sold, roads are made, villages and towns are built up, and all the improvements that can be of value to a country go on and increase the value of the lands . . . ." Cong.Globe, 31st Cong., 1st Sess. 846 (1850).
24
This distinguishes the instant case from Buford v. Houtz, supra. The appellants there were a group of cattle ranchers seeking, inter alia, an injunction against sheep ranchers who moved their herds across odd-numbered lots held by the appellants in order to graze their sheep on even-numbered public lots. This Court denied the requested relief because it was contrary to a century-old grazing custom. The Court also was influenced by the sheep ranchers' lack of any alternative.
"Upon the whole, we see no equity in the relief sought by the appellants in this case, which undertakes to deprive the defendants of this recognized right to permit their cattle to run at large over the lands of the United States and feed upon the grasses found in them, while, under pretence of owning a small proportion of the land which is the subject of controversy, they themselves obtain the monopoly of this valuable privilege." 133 U.S., at 332, 10 S.Ct. at 309.
Here neither custom nor necessity supports the Government.
25
In 1887 the Secretary of the Interior recommended that Congress enact legislation providing for a public road around each section of public land to provide access to the various public lots in the checkerboard scheme. The Secretary also recommended that to the extent building these roads required the taking of property that had passed to private individuals, "the bill should provide for necessary compensation." 1 Report of the Secretary of the Interior for Fiscal Year Ending June 30, 1887, p. 15 (1887); see also 1 Report of the Secretary of the Interior for Fiscal Year Ending June 30, 1888, p. xvii (1888).
26
See, e. g., Louisiana v. Garfield, 211 U.S. 70, 76, 29 S.Ct. 31, 32, 53 L.Ed. 92 (1908); Iron Silver Mining Co. v. Elgin Mining & Smelting Co., 118 U.S. 196, 207-208, 6 S.Ct. 1177, 1183-1184, 30 L.Ed. 98 (1886); Lessee of Irwin H. Doolittle's Lessee v. Bryan, 14 How. (55 U.S.) 563, 567, 14 L.Ed. 543 (1853).
| 34
|
440 U.S. 625
99 S.Ct. 1379
59 L.Ed.2d 642
COUNTY OF LOS ANGELES et al., Petitioners,v.Van DAVIS et al.
No. 77-1553.
Argued Dec. 5, 1978.
Decided March 27, 1979.
Syllabus
Respondents, representing present and future black and Mexican-American applicants to the Los Angeles County Fire Department, brought a class action against petitioners (Los Angeles County, and the County Board of Supervisors and Civil Service Commission), alleging, inter alia, that petitioners' hiring procedure whereby they proposed to interview the top 544 scorers (of whom 492 were white, 10 were black, and 33 were Mexican-American) on a 1972 written civil service examination in order to fill temporary emergency manpower needs in the Fire Department, violated 42 U.S.C. § 1981. The District Court, in 1973, held that the procedure, though not discriminatorily motivated, violated § 1981 because the 1972 examination had not been validated as predictive of job performance, and accordingly the court permanently enjoined all future discrimination and mandated good-faith affirmative-action efforts. The Court of Appeals affirmed. Held : The controversy has become moot during the pendency of the litigation. Pp. 631-634.
(a) Jurisdiction, properly acquired, may abate if a case becomes moot because (1) there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. When both conditions are satisfied, the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law. P. 631.
(b) Here the first condition is met because there can be no reasonable expectation that petitioners will use an unvalidated civil service examination for the purposes contemplated in 1972. The temporary emergency firefighter shortage and lack of an alternative means of screening job applicants existing at that time were unique, are no longer present, and are unlikely to recur because, since the commencement of the litigation, petitioners have instituted an efficient and nonrandom method of screening job applicants and increasing minority representation in the Fire Department. Pp. 631-633.
(c) The second condition of mootness is met because petitioners' compliance since 1973 with the District Court's decree and their hiring of over 50% of new recruits from minorities has completely cured any discriminatory effects of the 1972 proposal. Pp. 633-634.
566 F.2d 1334, vacated and remanded.
William F. Stewart, Los Angeles, Cal., for petitioners.
A. Thomas Hunt, Los Angeles, Cal., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The District Court for the Central District of California determined in 1973 that hiring practices of the County of Los Angeles respecting the County Fire Department violated 42 U.S.C. § 1981.1 The District Court in an unreported opinion and order permanently enjoined all future discrimination and entered a remedial hiring order. The Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded the case for further consideration. 566 F.2d 1334 (1977). We granted certiorari to consider questions presented as to whether the use of arbitrary employment criteria, racially exclusionary in operation, but not purposefully discriminatory, violates 42 U.S.C. § 1981 and, if so, whether the imposition of minimum hiring quotas for fully qualified minority applicants is an appropriate remedy in this employment discrimination case. 437 U.S. 903, 98 S.Ct. 3087, 57 L.Ed.2d 1132 (1978). We now find that the controversy has become moot during the pendency of this litigation. Accordingly, we vacate the judgment of the Court of Appeals and direct that court to modify its remand so as to direct the District Court to dismiss the action.
2
* In 1969, persons seeking employment with the Los Angeles County Fire Department were required to take a written civil service examination and a physical-agility test. Applicants were ranked according to their performance on the two tests and selected for job interviews on the basis of their scores. Those who passed their oral interviews were then placed on a hiring-eligibility list. Because blacks and Hispanics did poorly on the written examination, this method of screening job applicants proved to have a disparate impact on minority hiring.
3
The County of Los Angeles has not used the written civil service examination as a ranking device since 1969. The county desisted, prior to the commencement of this litigation, because it felt that the test had a disparate adverse impact on minority hiring, because it feared that this impact might violate Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., and because it wished, in any event, to increase minority representation in the Fire Department. See App. to Brief for Respondents.
4
In 1971, the county replaced the 1969 procedure with a new method of screening job applicants. A new written test was designed expressly to eliminate cultural bias. The test was to be given and graded on a pass-fail basis for the sole purpose of screening out illiterates. Five hundred of the passing applicants were to be selected at random for oral interviews and physical-agility tests. Passing applicants were to be ranked solely on the basis of the results of the physical-agility test and the oral interview. See 566 F.2d, at 1346 (Wallace, J., dissenting).
5
An examination was conducted, pursuant to this plan, in January 1972. Ninety-seven percent of the applicants passed the written test. There was no disparate adverse impact on minorities and this use of the written examination has not been challenged in this litigation.
6
After administration of the written test, but before the random selection could be made, an action was filed in state court against the county charging that the random-selection process violated provisions of the county charter and civil service regulations. The county was enjoined from using the random-selection method pending trial on the merits. See ibid.
7
For a time the hiring process came to a halt. The eligibility list drawn from the 1969 examination had been exhausted. The county was unable to devise a nonrandom method of screening job applicants and the county lacked the resources to interview all of the applicants who had passed the 1972 examination.
8
As a consequence of this unintended hiring freeze, vacancies in the County Fire Department increased and the manpower needs of the Department became critical. Finally, to break the logjam, the County Department of Personnel proposed to interview those applicants who had received the top 544 scores on the 1972 written test. Of this number, 492 were white, 10 black, and 33 Mexican-American. The applicants were not to be ranked on the basis of the test results, however, and the interviews were not intended to eliminate the remaining applicants from consideration. The purpose was solely to expedite the hiring of sufficient firefighters to meet the immediate urgent requirements of the Fire Department. See ibid. But when minority representatives objected to the plan, it was abandoned, uneffectuated, prior to the commencement of this litigation.
9
In January 1973, respondents, representing present and future black and Mexican-American applicants to the Fire Department, brought a class action against the County of Los Angeles, the Board of Supervisors of the County of Los Angeles, and the Civil Service Commission of the County of Los Angeles (petitioners). Respondents charged that petitioners' 1969 hiring procedures violated 42 U.S.C. § 1981. Respondents also charged that petitioners' plan to interview those applicants who had received the top 544 scores on the 1972 written test violated 42 U.S.C. § 1981.
10
The District Court found that petitioners had acted without discriminatory intent. Nonetheless, the District Court held that because the 1969 and 1972 written examinations had not been validated as predictive of job performance, petitioners' employment practices had violated 42 U.S.C. § 1981. The court permanently enjoined all future discrimination and mandated good-faith affirmative-action efforts. The court also entered a remedial hiring order whereby at least 20% of all new firefighter recruits were required to be black and another 20% were required to be Mexican-American until the percentage of blacks and Mexican-Americans in the Los Angeles County Fire Department was commensurate with their percentage in Los Angeles County.2
11
The Court of Appeals reversed the District Court with respect to the 1969 examination: The Court of Appeals held that respondents did not have standing to seek relief on account of the 1969 civil service examination because the plaintiff class, as certified by the District Court, consisted only of present and future job applicants3 and did not include any persons who had in any way been affected by the 1969 test.4
12
The Court of Appeals affirmed, however, the District Court's holding with respect to the 1972 proposal to use an unvalidated civil service examination.
II
13
The only question remaining in this case, then, concerns petitioners' 1972 plan to interview the top 544 scorers on the 1972 written examination in order to fill temporary emergency manpower needs. We find that this controversy became moot during the pendency of this litigation.
14
"Simply stated, a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). We recognize that, as a general rule, "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot." United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). But jurisdiction, properly acquired, may abate if the case becomes moot because
15
(1) it can be said with assurance that "there is no reasonable expectation . . ." that the alleged violation will recur, see id., at 633, 73 S.Ct., at 897; see also SEC v. Medical Committee For Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972), and
16
(2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. See, e. g., DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974); Indiana Employment Security Div. v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973).
17
When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.
18
The burden of demonstrating mootness "is a heavy one." See United States v. W. T. Grant Co., supra, 345 U.S., at 632-633, 73 S.Ct., at 897. Nevertheless, that burden is fully met on this record.
19
The first condition is met because there can be no reasonable expectation that petitioners will use an unvalidated civil service examination for the purposes contemplated in 1972. Petitioners have not used an unvalidated written examination to rank job applicants since 1969. Petitioners considered employing such a procedure in 1972 only because of a temporary emergency shortage of firefighters and only because petitioners then had no alternative means of screening job applicants. Those conditions were unique, are no longer present, and are unlikely to recur because, since the commencement of this litigation, petitioners have succeeded in instituting an efficient and nonrandom method of screening job applicants and increasing minority representation in the Fire Department. The new procedures are as follows:
20
To fill each group of vacancies petitioners interview 500 applicants who passed their written examination, including the highest scoring 300 whites, 100 blacks, and 100 Mexican-Americans. The number interviewed is several times the number of actual vacancies. The interviewers rate each of these applicants on his or her merits without regard to race or national origin. Thereafter applicants are hired solely on the basis of the score given by the interviewer, again without regard to race or national origin. Those hired are not hired from separate lists, no quotas are used, and the same rating standards are applied to all applicants. The interviewers are not authorized to give extra points because of an applicant's race or national origin, but are directed only to be alert for talented minority applicants. This procedure has resulted every year since 1972 in a minority hiring level which consistently, though by varying amounts, exceeded 50%.
21
There has been no suggestion by any of the parties, nor is there any reason to believe, that petitioners would significantly alter their present hiring practices if the injunction were dissolved. See also Brief for Legal Defense and Educational Fund, Inc., as Amicus Curiae 7. A fortiori, there is no reason to believe that petitioners would replace their present hiring procedures with procedures that they regarded as unsatisfactory even before the commencement of this litigation. Under these circumstances we believe that this aspect of the case has "lost its character as a present, live controversy of the kind that must exist if [the Court is] to avoid advisory opinions on abstract propositions of law." Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-202, 24 L.Ed.2d 214 (1969).
22
The second condition of mootness is met because petitioners' compliance during the five years since 1973 with the District Court's decree and their hiring of over 50% of new recruits from minorities has completely cured any discriminatory effects of the 1972 proposal. Indeed, it is extremely doubtful, from this record, that the 1972 proposal had any discriminatory effects to redress. The plan, it must be remembered, was never carried out As a consequence, there has been no finding that any minority job applicant was excluded from employment as a result of the proposal. Cf. Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976).5 Nor has there been a finding that any prospective minority job applicant was deterred from applying for employment with the Fire Department as a result of the proposed application of the examination. Cf. Teamsters v. United States, 431 U.S. 324, 365-367, 97 S.Ct. 1843, 1869-1871, 52 L.Ed.2d 396 (1977). Nor has there been a finding that the 1972 proposal reflected a racial animus that might have tainted other employment practices. Cf. Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). On the contrary the District Court expressly found:
23
"Neither Defendants nor their officials engaged in employment practices with a willful or conscious purpose of excluding blacks and Mexican-Americans from employment at the Los Angeles County Fire Department. To the contrary, several of Defendants' officials engaged in efforts designed to increase the minority representation in the Los Angeles County Fire Department." App. 41.
24
All of these circumstances, taken together, persuade us that, whatever might have been the case at the time of trial, the controversy has become moot during the pendency of this litigation. Accordingly, we vacate the judgment of the Court of Appeals and remand to that court for entry of an appropriate order directing the District Court to dismiss the action as moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950).6
25
So ordered.
26
Mr. Justice STEWART, with whom Mr. Justice REHNQUIST joins, dissenting.
27
The Court of Appeals dealt with three alleged instances of discrimination by the petitioners in hiring firemen: a minimum-height requirement, the use of a written test in 1969 to establish hiring priorities, and the threatened reliance on the results of a test administered in 1972. The Court of Appeals ruled that the height requirement violated federal law. That ruling has not been challenged here. It concluded that these respondents did not have standing to challenge the 1969 test results. All Members of this Court agree. Thus, only the third claim remains in this case.
28
At least some of the respondents do have standing to challenge the threatened use of the 1972 test. They had applied for employment with the county in 1971 and took the 1972 test. Clearly, they would be affected by the county's decision to use the results of that test to select applicants for interviews. If the county's proposed use of the test was illegal, those respondents were threatened with injury in fact. For the reasons expressed by Mr. Justice POWELL, I believe that their controversy with the county is still alive.
29
I cannot agree with Mr. Justice POWELL, however, that the § 1981 question is properly presented in this case. The respondents' second amended complaint alleged that the county had violated Title VII of the Civil Rights Act of 1964. The complaint included copies of "right to sue" letters from the Equal Employment Opportunity Commission. Title VII became applicable to local governmental units in March 1972. The county decided to use the 1972 test to rank applicants at the end of 1972. The District Court held that the county had violated both § 1981 and Title VII. The Court of Appeals expressly affirmed that decision.
30
"Of course, this continued threat to use the 1972 test as part of the selection process right up to the filing of the complaint in this case is admittedly a violation of Title VII." 566 F.2d 1334, 1341 n. 14.
31
Mr. Justice POWELL concludes that the Court of Appeals did not make a considered judgment on the Title VII issue. While it is true that the text of the court's opinion dealt almost exclusively with § 1981, the court clearly held that Title VII standards apply to alleged violations of § 1981. Under the court's analysis, if a violation of § 1981 were made out and the conduct occurred while the defendant was covered by Title VII, Title VII must have been violated also. As the dissenting opinion in the Court of Appeals recognized, the decision on Title VII thus made completely unnecessary the court's discussion of whether § 1981 requires proof of discriminatory intent. 566 F.2d, at 1347.
32
The petitioners did not question the ruling of the Court of Appeals on the Title VII claim,* and any opinion this Court might render on the § 1981 question would not affect the judgment below that petitioners' action was illegal under Title VII. Thus, it would truly be an advisory opinion.
33
It is clear, however, that the only violation remaining in this case, the threatened use of the 1972 test to rank job applicants, cannot justify the extensive remedy ordered by the District Court. "As with any equity case, the nature of the violation determines the scope of the remedy." Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554. A simple order enjoining the illegal use of the 1972 test would seem sufficient to remedy the only violation of which the respondents had standing to complain. Therefore, I would vacate the judgment of the Court of Appeals and remand the case to the District Court with directions to narrow the scope of the remedy substantially.
34
Mr. Justice POWELL, with whom THE CHIEF JUSTICE joins, dissenting.
35
Today the Court orders dismissal of a suit challenging the hiring practices of the Los Angeles County Fire Department. The dismissal is predicated on the view that the case has become moot. This disposition of the case is opposed by petitioners, and is not urged by respondents either in their briefs or oral argument. But apart from this, I believe the Court's decision misapplies settled principles of mootness, and think the case is properly before us. We should reach, rather than seek a questionable means of avoiding, the important question—heretofore unresolved by this Court—whether cases brought under 42 U.S.C. § 1981, like those brought directly under the Fourteenth Amendment, require proof of racially discriminatory intent or purpose.
36
This suit was brought to eliminate the effects of alleged racial discrimination in the Los Angeles County Fire Department. The plaintiffs, respondents here, were persons who applied unsuccessfully for fireman jobs in 1971; the class they represented was certified to include present and future, but not past, black and Mexican-American job applicants to the Fire Department. The county was accused of a variety of employment practices said to discriminate against minorities, including the use of "written tests as a promotion and hiring selection device" even though the tests had "disproportionate detrimental impact" on blacks and Mexican-Americans. App. 4. The named plaintiffs had taken the most recent of these tests, which was administered in January 1972. The use of the tests, together with other actions of the county that plaintiffs described as discriminatory,1 was alleged to be responsible for substantially fewer blacks and Mexican-Americans being employed by the Fire Department than were present in the population it served.
37
The District Court found that the county had engaged in employment discrimination and imposed a comprehensive racially based hiring order.2 In granting this relief, the court apparently acted under the assumption that the plaintiff class had standing to attack acts of discrimination that occurred before any of the class members applied for employment in 1971. The Court of Appeals for the Ninth Circuit reversed this determination. As no past applicants were included in the plaintiff class, the court held that respondents could not challenge the legality of employment practices which had no effect on post-1971 hiring. Respondents therefore were held to lack standing to challenge the civil service test administered in 1969, as the list of eligible applicants drawn up on the basis of that test had been exhausted before any of the class members had sought employment. 566 F.2d 1334, 1337-1338 (1977). A majority of the panel nonetheless affirmed the District Court's hiring order. Id., at 1343-1344.
38
Respondents have not sought review of the determination of standing by the court below. Accordingly, the county's use of the 1972 test is the only employment practice now before us. This narrows the controversy considerably from its original dimensions, but it does not follow that a case or controversy between the county and respondents no longer exists. This is evident from a review of the facts.
39
The 1972 test was the same as the one administered in 1969, except that some attempt had been made to screen out questions thought to reflect cultural bias. After grading the test, the county announced it would interview only the 544 applicants with the highest scores, rather than the 2,338 applicants who achieved a passing score. On January 8, 1973, five days after interviews began, the county changed its plans and decided to interview all applicants who had passed.3 Respondents filed this suit on January 11, 1973. In their second amended complaint, filed on April 16, 1973, respondents alleged that the county decided not to use the 1972 test as a screening device only because suit was about to be filed, App. 5, and that the county would reinstitute such use unless an injunction were issued, id., at 7. The District Court found that the 1972 test was among the discriminatory employment practices in which the county engaged,4 and that the county had dropped its plan to tie interviews to test performance because of the then pending suit. Id., at 39.
40
The court below agreed that the county's attempt to use the 1972 test as a selection device "had an adverse impact on the racial class of plaintiffs." 566 F.2d, at 1338 n. 6. In its view, respondents therefore had standing to attack this conduct. After determining what it considered to be the proper standard for liability under § 1981, the court held that "the district court properly found defendants' use of the 1972 written examination as a selection device to be a violation of § 1981." 566 F.2d, at 1341. Turning to the scope of the relief ordered, a majority of the panel expressed its approval of the District Court's remedial order. Looking at the judicial "power under § 1981," id., at 1342, the majority ruled that "the district court properly exercised its discretion in ordering affirmative action to be undertaken to erase the effects of past discrimination." Id., at 1343.5
41
In addition to requiring an affirmative employment program to achieve specified racial percentages in hiring, the District Court ordered that petitioners "are permanently enjoined and restrained from engaging in any employment practice which discriminates on the basis of race or national origin against the class represented by Plaintiffs in this Action . . . ." App. 45. If the District Court was correct, as the court below held, in ruling that the threatened use of the 1972 test was an employment practice that discriminated on the basis of race, then an order to prevent the county from carrying out its threat would have been appropriate. The fact that wrongful conduct has not yet transpired does not leave a court powerless to prevent the threatened wrong, if the likelihood of harm is sufficiently substantial. Doran v. Salem Inn, Inc., 422 U.S. 922, 930-932, 95 S.Ct. 2561, 2567-2568, 45 L.Ed.2d 648 (1975); Steffel v. Thompson, 415 U.S. 452, 458-460, 94 S.Ct. 1209, 1215-1216, 39 L.Ed.2d 505 (1974); Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Cf. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973).6
42
The Court nonetheless holds that this case has become moot, because "there can be no reasonable expectation that petitioners will use an unvalidated civil service examination for the purposes contemplated in 1972," ante, at 631-632. This assumption is contrary to findings of fact by the courts below, is opposed by the parties who are subject to the order to be dismissed, and manifestly is at odds with the record in this case.
43
Neither of the courts below regarded the county's planned use of the 1972 test as solely a response to what the Court characterizes as a "temporary emergency shortage of firefighters." Ante, at 632. The District Court, in assessing whether petitioners' announced intention to use the 1972 test as a selection device violated § 1981, found that this lawsuit was responsible for the county's change in hiring procedures from interviewing only high scorers to considering everyone who passed the test. App. 39. The Court of Appeals agreed, and held: "[Petitioners'] decision, prompted solely by the filing of this lawsuit, to abandon the written exam as a selection device does not moot the claim." 566 F.2d, at 1341.
44
Nor have petitioners altered their position on the legality of their use of testing since the decision below. Rather, petitioners strongly assert that the controversy is still a live one. The only suggestion of mootness that has been raised in this case comes from the N.A.A.C.P. Legal Defense and Educational Fund, an organization which is an amicus curiae here but has not participated previously in this litigation. Petitioners have attacked this assertion and the factual assumptions on which it rests:
45
"The NAACP in reliance on statements of fact that appear absolutely nowhere in the record, gratuitously advance the novel theory that the petitioners have not been hiring under compulsion of the quota order since it was entered in 1973. This contention is not only irrelevant to the issue of the validity of the quota order, but is simply not correct. The amicus' factual representation itself describes a quota when it states that all applicants are reduced down to three groups of whites, blacks, and Mexican-Americans in exact proportion to the 1-1-3 hiring order." Reply Brief for Petitioners 20 n. 7.
46
Petitioners continue to use civil service examinations as a threshold barrier for employment consideration, and the record is silent on their validation. To comply with the District Court's order, petitioners have added additional steps to the hiring process to take account of the race of the applicants. The test scores of applicants are ranked separately within each racial group, and the highest scorers are selected for interviews in the exact racial proportions specified by the court order. Among those applicants who receive an interview, preference is given to minority group members. But these steps clearly are the product of the injunction at issue here and do not represent, as the Court's opinion states, a voluntary affirmative-action program.
47
The fact that the county, upon pain of contempt, has substantially altered its use of examinations by the addition of other steps that take account of applicants' race hardly can support a finding that "there is no reasonable expectation" the county will abandon its additional procedures once the court order requiring them is dismissed. Our previous decisions make clear that a case does not become moot simply because a court order redressing the alleged grievance has been obeyed. NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970); NLRB Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831 (1938). In United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), on which the court below relied and which the Court today attempts to distinguish, it was stated:
48
"Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. United States v. Trans-Missouri Freight Assn., 166 U.S. 290 [17 S.Ct. 540, 41 L.Ed. 1007] (1897); Walling v. Helmerich & Payne, Inc., 323 U.S. 37 [65 S.Ct. 11, 89 L.Ed. 29] (1944); Hecht Co. v. Bowles, 321 U.S. 321 [64 S.Ct. 587, 88 L.Ed. 754] (1944). A controversy may remain to be settled in such circumstances, United States v. Aluminum Co. of America, [2 Cir.,] 148 F.2d 416, 448 (1945), e. g., a dispute over the legality of the challenged practices. Walling v. Helmerich & Payne, Inc., supra; Carpenters Union [Local 74 United Brotherhood of Carpenters, etc.,] v. Labor Board, [National Labor Relations Board] 341 U.S. 707, 715 [71 S.Ct. 966, 970, 95 L.Ed. 1309] (1951). The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. United States v. Trans-Missouri Freight Assn., supra, [166 U.S.] at [pages] 309, 310 [17 S.Ct. 540, 547, 41 L.Ed. 1007]. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right, Labor Board [National Labor Relations Board] v. General Motors Corp., [2 Cir.,] 179 F.2d 221 (1950). The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement.
49
"The case may nevertheless be moot if the defendant can demonstrate that 'there is no reasonable expectation that the wrong will be repeated.' The burden is a heavy one. Here the defendants told the court that the interlocks no longer existed and disclaimed any intention to revive them. Such a profession does not suffice to make a case moot although it is one of the factors to be considered in determining the appropriateness of granting an injunction against the now-discontinued acts." Id., at 632-633, 73 S.Ct., at 897 (footnotes omitted; emphasis supplied).7
50
In my view, there is far less to the mootness issue here than to that presented in W. T. Grant Co. Petitioners, the subject of the lower court's injunction, hotly dispute any suggestion that no live issues remain. Furthermore, they did not cease voluntarily their allegedly illegal conduct and have not disclaimed an intention to resume their use of civil service tests as a primary hiring criterion.8 Nor, in light of this record, could a disclaimer—were it made—satisfy the "heavy burden" imposed upon a defendant seeking to have a suit dismissed as moot.9
51
Furthermore, the Court's avoidance of the merits of this controversy by its novel view of mootness leaves the county in a quandary. Although it is not unreasonable to assume, following dismissal of this suit as moot, that the county will again base hiring on unvalidated aptitude tests, it also is possible that the county may believe that hiring procedures of the sort previously required by the order under review are necessary to ensure compliance with federal law. The Court's disposition today will leave the decision of the Court of Appeals on the merits as the most pertinent statement of the governing law, even if that decision is not directly binding.10 Therefore, any future litigation against the county, including the suit to assert the rights of pre-1971 applicants that the Court seems to contemplate, ante, at 630 n.3, is likely to be controlled by the decision of that court.
52
In sum, the Court's disposition leaves all of the parties in positions of uncertainty: Respondents lack protection against the resumption of the county's alleged discrimination, and the county lacks a conclusive determination of the legality of its conduct. All of these considerations militate against a determination of mootness. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 535-537, n.14, 98 S.Ct. 1197, 1207-1208, 55 L.Ed.2d 460 (1978). Accordingly, I conclude that the question of whether petitioners violated § 1981 is before us.11 I would reach this issue and determine whether § 1981, like the Equal Protection Clause of the Fourteenth Amendment, prohibits only purposefully discriminatory conduct.12
1
Revised Stat. § 1977, 42 U.S.C. § 1981, provides:
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
2
Despite the fact that the Mexican-American population of Los Angeles County was approximately double the size of the black population, the District Court ordered identical accelerated hiring for both groups due to its finding that the Fire Department's 5'7" height requirement for job applicants was a valid requirement for employment and that this height requirement had the effect of eliminating 41% of the otherwise eligible Mexican-American applicants from consideration. See 566 F.2d 1334, 1337 (1977). The Court of Appeals reversed the District Court in this respect and ordered a relative increase in the Mexican-American hiring quota. In light of our disposition on grounds of mootness we do not consider this issue.
3
Respondents contend that their failure to include past applicants in the class was a "mere oversight" which should not be used to vitiate the District Court's decree. But respondents did not cross petition for modification of the judgment of the Court of Appeals reversing the District Court with respect to the 1969 test. The issue of oversight, as a consequence, is not properly before us. See FEA v. Algonquin SNG, Inc., 426 U.S. 548, 560 n. 11, 96 S.Ct. 2295, 2302, 49 L.Ed.2d 49 (1976). We intimate no view whether respondents may seek, despite the oversight, to bring a new lawsuit with new and proper parties. See Gibson v. Supercargoes & Checkers, 543 F.2d 1259, 1264 (CA9 1976).
4
The parties stipulated that approximately 100 vacancies occur in the ranks of firemen each year, and testimony at trial established that 187 applicants were placed on an eligibility list following the 1969 test. Based on this evidence the Court of Appeals concluded that the 1969 list had been exhausted before plaintiffs applied for employment as firefighters in October 1971. See 566 F.2d, at 1338.
5
Moreover, there appears to be no possibility that persons hired pursuant to the District Court's order will be terminated in consequence of our vacation of the Court of Appeals' judgment as moot. Cf. DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).
6
Of necessity our decision "vacating the judgment of the Court of Appeals deprives that court's opinion of precedential effect . . . ." O'Connor v. Donaldson, 422 U.S. 563, 577-578, n. 12, 95 S.Ct. 2486, 2495, n. 12, 45 L.Ed.2d 396 (1975). See also A. L. Mechling Barge Lines v. United States, 368 U.S. 324, 329-330, 82 S.Ct. 337, 340-341, 7 L.Ed.2d 317 (1961).
*
The second question presented in the petition for certiorari does bear on Title VII, but not in a sense relevant to this question:
"Is a racial quota hiring order to be effective until the entire fire department achieves current racial parity with the general population beyond the jurisdiction of the court when:
* * * * *
"c. The plaintiffs had no standing to represent any pre-March, 24, 1972 applicants and no discriminatory hiring has occurred subsequent to Title VII's effective date." (Emphasis added.)
This does not challenge the holding of the Court of Appeals that the threatened use of the 1972 test was itself a Title VII violation, nor, in
fact, does it challenge any finding of violation at all. Rather, it is addressed solely to the remedy.
In their brief the petitioners argue that the mere threat to use the test results to rank applicants cannot constitute a violation of Title VII and that a pattern or practice of discrimination must be shown. They also urge that Title VII cannot be applied to local governmental units absent some showing of discriminatory intent. See Dothard v. Rawlinson, 433 U.S. 321, 323 n. 1, 97 S.Ct. 2720, 2723, 53 L.Ed.2d 786; Hazelwood School Dist. v. United States, 433 U.S. 299, 306 n. 12, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768. Because these issues were not raised in the petition for certiorari, it is unnecessary to address them.
1
The complaint also alleged that Fire Department personnel had engaged in nepotistic and "word-of-mouth" recruitment, employed a discriminatory interview procedure, used other procedures, practices, and standards that disfavored minorities, and refused to take affirmative action to correct the effects of past discrimination. App. 4-5. The District Court found that the written tests and the Department's failure to take affirmative steps to overcome a reputation of discrimination among blacks and Mexican-Americans constituted illegal discrimination, but held that the use of a 5'7" height requirement for firemen was job related and not discriminatory. Id., at 39. The opinion of the Court of Appeals relied entirely on the county's written examinations as the basis for sustaining the District Court's remedial order. 566 F.2d 1334, 1342-1344 (1977).
In addition, the Court of Appeals reversed as clearly erroneous the finding that the height requirement was job related and suggested that the District Court could take further steps to offset the allegedly discriminatory effect of this standard. Id., at 1341-1342, 1343. Petitioners have not sought review of that question; rather they contend that the court below applied the wrong legal standards in assessing generally the legality of their employment practices.
2
The order required the county to select a minimum of 20% of its new firemen from black applicants and another 20% from Mexican-American applicants until the percentage of members of these racial groups in the fireman work force equaled the percentages in the general population of the county. The county also was required to file annual reports with the court on fireman hiring.
3
A stipulation signed by the parties in the District Court incorrectly stated that the change in plans took place on January 8, 1972. It is clear from the face of the stipulation, however, that the 1973 date was meant: The county could not have scheduled interviews to take place on or after January 3, 1972, on the basis of a test administered some time in January 1972. No party has contended here that the 1972 date was correct.
4
According to the stipulated facts, 19.8% of the applicants who took the 1972 test were black or Mexican-American, but only 8.9% of those 544 applicants who initially were scheduled for interviews were minority group members.
5
Mr. Justice STEWART agrees that the case is not moot, but argues that the § 1981 issue is not properly presented in this case. He thinks the court below also rested its holding on a finding that petitioners' conduct violated Title VII of the Civil Rights Act of 1964. While the matter is not free from doubt, it seems most unlikely that the court below based its affirmance of the District Court's sweeping injunction on its cryptic and offhand conclusion that "[o]f course" the "continued threat" to base hiring on test performance "is admittedly a violation of Title VII," 566 F.2d, at 1341 n. 14. As the language quoted in the text illustrates, the court grounded its decision expressly on § 1981. The one-sentence reference to Title VII is divorced from any discussion of the relationship between the purported violation and the relief granted. Although the basis of the court's affirmance of the injunction is not clear, see 566 F.2d, at 1342-1344, it apparently believed the District Court properly took into account pre-Title VII violations of § 1981 in determining the scope of the remedial order, in spite of respondents' lack of standing to seek relief for themselves. Thus, the decision of the Court of Appeals seems to have been based on a conclusion that independent violations of § 1981 had occurred.
6
Petitioners challenged the standing of respondents to seek the relief that was granted. The court below rejected this challenge in part, holding that respondents could attack the threatened use of the 1972 test. 566 F.2d, at 1338 n.6; id., at 1347 n.2 (Wallace, J., dissenting). The Court approves this holding today. Ante, at 631. I agree that respondents alleged injuries in fact, and sought relief, adequate to meet our standing requirements, even though they lacked standing to seek all of the relief accorded them by the courts below. See Nyquist v. Mauclet, 432 U.S. 1, 6 n.7, 97 S.Ct. 2120, 2124, 53 L.Ed.2d 63 (1977); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261-264, 97 S.Ct. 555, 561-563, 50 L.Ed.2d 450 (1977); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-1926, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S., at 498-502, 95 S.Ct., at 2204-2207; Linda R. S. v. Richard D., 410 U.S., at 617, 93 S.Ct., at 1148. Cf. East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 404, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453 (1977).
7
As we further observed in United States v. Oregon State Medical Soc., 343 U.S. 326, 333, 72 S.Ct. 690, 696, 96 L.Ed. 978 (1952), "[i]t is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption."
8
Los Angeles, along with the city of San Diego, filed an amicus brief in a case before this Court which involved personnel testing. In their statement of interest, these amici declared:
"The Cities of Los Angeles and San Diego are municipal corporations within the State of California. The interests of those cities arise from their positions as public sector employers which have charter requirements to hire individuals based on merit. Pursuant to merit principles, both cities use various personnel tests to hire and to promote individuals in the classified civil service.
* * * * *
"Thus, both cities before this Court as Amici Curiae have interests in maintaining personnel testing programs to fulfill the merit system requirements of their municipal charters, as well as interests in sustaining those personnel tests in litigation." Brief for City of Los Angeles et al. as Amici Curiae in Detroit Edison Co. v. NLRB, O. T. 1978 No. 77-968, pp. 2, 4.
9
The assertion of the Court that "there can be no reasonable expectation" that petitioners will base hiring on unvalidated aptitude tests, ante, at 631, lacks any record support and is contrary to the assumptions upon which the courts below based their actions. There has been no change in circumstances of any relevance to the Court's conclusion since petitioners attempted to use their unvalidated 1972 test as a hiring device. Title VII, which the Court appears to suggest as an intervening factor, applied with full force to petitioners when in January 1973 they sought to limit hiring to applicants with the highest scores on the 1972 test. Under W. T. Grant Co., the burden is on petitioners to demonstrate that there is little chance they will resume their allegedly illegal conduct. Petitioners have not attempted to meet that burden here. The Court's assumption that in the future the county will seek to validate its tests before relying on them not only is unsubstantiated by the record facts, it also reverses the presumption we normally apply in mootness cases. See, e. g., Hampton v. Mow Sun Wong, 426 U.S. 88, 98, and n. 14, 96 S.Ct. 1895, 1903, 48 L.Ed.2d 495 (1976) (federal agency's new hiring regulation forbidding challenged practice does not moot claim for injunctive and declaratory relief).
It is instructive to compare the facts of this case with those of DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). Here petitioners have made no change in their hiring procedures except in response to the court order, and have put on this record no evidence that they contemplate any further changes. The Court's belief that petitioners will not resume their use of unvalidated tests rests solely on speculation. In DeFunis, by contrast, the law school had admitted DeFunis to his final quarter in school and represented to this Court that it would make no attempt to rescind this registration. Unlike the case at bar, DeFunis had not brought a class action; hence only his individual right not to be discriminated against in law school admissions was at stake. Id., at 317, 94 S.Ct., at 1706. Because it was virtually certain that DeFunis never again would need to submit to the admission process he challenged, we held that the case had become moot. Id., at 318, 94 S.Ct. at 1706. Even the very slight chance that DeFunis might not receive his degree was considered sufficiently substantial by four Members of the Court to render the case a live controversy.
10
Although a decision vacating a judgment necessarily prevents the opinion of the lower court from being the law of the case, O'Connor v. Donaldson, 422 U.S. 563, 577-578, n.12, 95 S.Ct. 2486, 2494, 2495, 45 L.Ed.2d 396 (1975); A. L. Mechling Barge Lines v. United States, 368 U.S. 324, 329-330, 82 S.Ct. 337, 340-341, 7 L.Ed.2d 317 (1961); United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), the expressions of the court below on the merits, if not reversed, will continue to have precedential weight and, until contrary authority is decided, are likely to be viewed as persuasive authority if not the governing law of the Ninth Circuit.
11
I cannot agree with Mr. Justice STEWART that the question whether petitioners had violated § 1981 in the past was a matter of indifference to the court below and would be immaterial upon remand. See n.5, supra. In exercising its "broad" equitable discretion as to granting any prophylactic relief, see United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953), the District Court could consider whether the county's conduct was a single, isolated instance of illegality or part of a pattern of unlawful conduct. This would rest on a determination of the requirements of § 1981 prior to the 1972 amendment of Title VII. Thus, a decision now on the § 1981 issue could affect the substantial rights of the parties and would not be an advisory opinion.
12
I am in agreement with Mr. Justice STEWART that, regardless of the proper construction of § 1981, the only arguably illegal conduct in this case could not justify the sweeping remedy ordered by the District Court.
| 12
|
440 U.S. 689
99 S.Ct. 1435
59 L.Ed.2d 692
FEDERAL COMMUNICATIONS COMMISSION, Petitioner,v.MIDWEST VIDEO CORPORATION et al. AMERICAN CIVIL LIBERTIES UNION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION et al. NATIONAL BLACK MEDIA COALITION et al., Petitioners, v. MIDWEST VIDEO CORPORATION et al.
Nos. 77-1575, 77-1648 and 77-1662.
Argued Jan. 10, 1979.
Decided April 2, 1979.
Syllabus
The Federal Communications Commission (FCC) promulgated rules requiring cable television systems that have 3,500 or more subscribers and carry broadcast signals to develop, at a minimum, a 20-channel capacity by 1986, to make available certain channels for access by public, educational, local governmental, and leased-access users, and to furnish equipment and facilities for access purposes. Under the rules, cable operators are deprived of all discretion regarding who may exploit their access channels and what may be transmitted over such channels. During the rulemaking proceedings, the FCC rejected a challenge to the rules on jurisdictional grounds, maintaining that the rules would promote "the achievement of long-standing communications regulatory objectives by increasing outlets for local self-expression and augmenting the public's choice of programs." On petition for review, the Court of Appeals set aside the FCC's rules as beyond the agency's jurisdiction. The court was of the view that the rules amounted to an attempt to impose common-carrier obligations on cable operators, and thus ran counter to the command of § 3(h) of the Communications Act of 1934 that "a person engaged in . . . broadcasting shall not . . . be deemed a common carrier." Held : The FCC's rules are not "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," United States v. Southwestern Cable Co., 392 U.S. 157, 178, 88 S.Ct. 1994, 2005, 20 L.Ed.2d 1001, and hence are not within the FCC's statutory authority. Pp. 696-709.
(a) The FCC's access rules plainly impose common-carrier obligations on cable operators. United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390, distinguished. Under the rules, cable systems are required to hold out dedicated channels on a first-come, nondiscriminatory basis; operators are prohibited from determining or influencing the content of access programming; and charges for access and use of equipment are delimited. Pp. 699-702.
(b) Consistently with the policy of the Act to preserve editorial control of programming in the licensee, § 3(h) forecloses any discretion in the FCC to impose access requirements amounting to common-carrier obligations on broadcast systems. The provision's background manifests a congressional belief that the intrusion worked by such regulation on the journalistic integrity of broadcasters would overshadow any benefits associated with the resulting public access. Although § 3(h) does not explicitly limit the regulation of cable systems, Congress' limitation on the FCC's ability to advance objectives associated with public access at the expense of the journalistic freedom of persons engaged in broadcasting is not one having peculiar applicability to television broadcasting. Its force is not diminished by the variant technology involved in cable transmissions. Pp. 702-707.
(c) In light of the hesitancy with which Congress has approached the access issue in the broadcast area, and in view of its outright rejection of a broad right of public access on a common-carrier basis, this Court is constrained to hold that the FCC exceeded the limits of its authority in promulgating its access rules. The FCC may not regulate cable systems as common carriers, just as it may not impose such obligations on television broadcasters. Authority to compel cable operators to provide common carriage of public-originated transmissions must come specifically from Congress. Pp. 708-709.
571 F.2d 1025, affirmed.
Lawrence G. Wallace, Dept. of Justice, Washington, D. C., for F. C. C. et al.
George H. Shapiro, Washington, D. C., for Midwest Video corp.
Mr. Justice WHITE delivered the opinion of the Court.
1
In May 1976, the Federal Communications Commission promulgated rules requiring cable television systems that have 3,500 or more subscribers and carry broadcast signals to develop, at a minimum, a 20-channel capacity by 1986, to make available certain channels for access by third parties, and to furnish equipment and facilities for access purposes. Report and Order in Docket No. 20508, 59 F.C.C.2d 294 (1976 Order ). The issue here is whether these rules are "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," United States v. Southwestern Cable Co., 392 U.S. 157, 178, 88 S.Ct. 1994, 2005, 20 L.Ed.2d 1001 (1968), and hence within the Commission's statutory authority.
2
* The regulations now under review had their genesis in rules prescribed by the Commission in 1972 requiring all cable operators in the top 100 television markets to design their systems to include at least 20 channels and to dedicate 4 of those channels for public, governmental, educational, and leased access. The rules were reassessed in the course of further rulemaking proceedings. As a result, the Commission modified a compliance deadline, Report and Order in Docket No. 20363, 54 F.C.C.2d 207 (1975), effected certain substantive changes, and extended the rules to all cable systems having 3,500 or more subscribers, 1976 Order, supra. In its 1976 Order, the Commission reaffirmed its view that there was "a definite societal good" in preserving access channels, though it acknowledged that the "overall impact that use of these channels can have may have been exaggerated in the past." 59 F.C.C.2d, at 296.
3
As ultimately adopted, the rules prescribe a series of interrelated obligations ensuring public access to cable systems of a designated size and regulate the manner in which access is to be afforded and the charges that may be levied for providing it. Under the rules, cable systems must possess a minimum capacity of 20 channels as well as the technical capability for accomplishing two-way, nonvoice communication.1 47 CFR § 76.252 (1977). Moreover, to the extent of their available activated channel capacity,2 cable systems must allocate four separate channels for use by public, educational, local governmental, and leased-access users, with one channel assigned to each. § 76.254(a). Absent demand for full-time use of each access channel, the combined demand can be accommodated with fewer than four channels but with at least one. §§ 76.254(b), (c).3 When demand on a particular access channel exceeds a specified limit, the cable system must provide another access channel for the same purpose, to the extent of the system's activated capacity. § 76.254(d). The rules also require cable systems to make equipment available for those utilizing public-access channels. § 76.256(a).
4
Under the rules, cable operators are deprived of all discretion regarding who may exploit their access channels and what may be transmitted over such channels. System operators are specifically enjoined from exercising any control over the content of access programming except that they must adopt rules proscribing the transmission on most access channels of lottery information and commercial matter.4 §§ 76.256 (b),S The regulations also instruct cable operators to issue rules providing for first-come, nondiscriminatory access on public and leased channels. §§ 76.256(d)(1), (3).
5
Finally, the rules circumscribe what operators may charge for privileges of access and use of facilities and equipment. No charge may be assessed for the use of one public-access channel. § 76.256(c)(2). Operators may not charge for the use of educational and governmental access for the first five years the system services such users. § 76.256(c)(1). Leased-access-channel users must be charged an "appropriate" fee. § 76.256(d)(3). Moreover, the rules admonish that charges for equipment, personnel, and production exacted from access users "shall be reasonable and consistent with the goal of affording users a low-cost means of television access." § 76.256(c)(3). And "[n]o charges shall be made for live public access programs not exceeding five minutes in length." Ibid. Lastly, a system may not charge access users for utilization of its playback equipment or the personnel required to operate such equipment when the cable's production equipment is not deployed and when tapes or film can be played without technical alteration to the system's equipment. Petition for Reconsideration in Docket No. 20508, 62 F.C.C.2d 399, 407 (1976).
6
The Commission's capacity and access rules were challenged on jurisdictional grounds in the course of the rulemaking proceedings. In its 1976 Order, the Commission rejected such comments on the ground that the regulations further objectives that it might properly pursue in its supervision over broadcasting. Specifically, the Commission maintained that its rules would promote "the achievement of long-standing communications regulatory objectives by increasing outlets for local self-expression and augmenting the public's choice of programs." 59 F.C.C.2d, at 298. The Commission did not find persuasive the contention that "the access requirements are in effect common carrier obligations which are beyond our authority to impose." Id., at 299. The explanation was:
7
"So long as the rules adopted are reasonably related to achieving objectives for which the Commission has been assigned jurisdiction we do not think they can be held beyond our authority merely by denominating them as somehow 'common carrier' in nature. The proper question, we believe, is not whether they fall in one category or another of regulation whether they are more akin to obligations imposed on common carriers or obligations imposed on broadcasters to operate in the public interest—but whether the rules adopted promote statutory objectives." Ibid.
8
Additionally, the Commission denied that the rules violated the First Amendment, reasoning that when broadcasting or related activity by cable systems is involved First Amendment values are served by measures facilitating an exchange of ideas.
9
On petition for review, the Eighth Circuit set aside the Commission's access, channel capacity, and facilities rules as beyond the agency's jurisdiction. 571 F.2d 1025 (1978). The Court was of the view that the regulations were not reasonably ancillary to the Commission's jurisdiction over broadcasting, a jurisdictional condition established by past decisions of this Court. The rules amounted to an attempt to impose common-carrier obligations on cable operators, the Court said, and thus ran counter to the statutory command that broadcasters themselves may not be treated as common carriers. See Communications Act of 1934, § 3(h), 47 U.S.C. § 153(h). Furthermore, the Court made plain its belief that the regulations presented grave First Amendment problems. We granted certiorari, 439 U.S. 816, 99 S.Ct. 77, 58 L.Ed.2d 107 (1978), and we now affirm.5
II
A.
10
The Commission derives its regulatory authority from the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq. The Act preceded the advent of cable television and understandably does not expressly provide for the regulation of that medium. But it is clear that Congress meant to confer "broad authority" on the Commission, H.R.Rep.No.1850, 73d Cong., 2d Sess., 1 (1934), so as "to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission." FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 451 (1940). To that end, Congress subjected to regulation "all interstate and foreign communication by wire or radio." Communications Act of 1934, § 2(a), 47 U.S.C. § 152(a). In United States v. Southwestern Cable Co., we construed § 2(a) as conferring on the Commission a circumscribed range of power to regulate cable television, and we reaffirmed that determination in United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972). The question now before us is whether the Act, as construed in these two cases, authorizes the capacity and access regulations that are here under challenge.
11
The Southwestern litigation arose out of the Commission's efforts to ameliorate the competitive impact on local broadcasting operations resulting from importation of distant signals by cable systems into the service areas of local stations. Fearing that such importation might "destroy or seriously degrade the service offered by a television broadcaster," First Report and Order, 38 F.C.C. 683, 700 (1965), the Commission promulgated rules requiring CATV systems6 to carry the signals of broadcast stations into whose service area they brought competing signals, to avoid duplication of local station programming on the same day such programming was broadcast, and to refrain from bringing new distant signals into the 100 largest television markets unless first demonstrating that the service would comport with the public interest. See Second Report and Order, 2 F.C.C.2d 725 (1966).7
12
The Commission's assertion of jurisdiction was based on its view that "the successful performance" of its duty to ensure "the orderly development of an appropriate system of local television broadcasting" depended upon regulation of cable operations. 392 U.S., at 177, 88 S.Ct., at 2005. Against the background of the administrative undertaking at issue, the Court construed § 2(a) of the Act as granting the Commission jurisdiction over cable television "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting." 392 U.S., at 178, 88 S.Ct., at 2005.
13
Soon after our decision in Southwestern, the Commission resolved "to condition the carriage of television broadcast signals . . . upon a requirement that the CATV system also operate to a significant extent as a local outlet by originating." Notice of Proposed Rulemaking and Notice of Inquiry, 15 F.C.C.2d 417, 422 (1968). It stated that its "concern with CATV carriage of broadcast signals [was] not just a matter of avoidance of adverse effects, but extend[ed] also to requiring CATV affirmatively to further statutory policies." Ibid. Accordingly, the Commission promulgated a rule providing that CATV systems having 3,500 or more subscribers may not carry the signal of any television broadcast station unless the system also operates to a significant extent as a local outlet by originating its own programs—or cablecasting—and maintains facilities for local production and presentation of programs other than automated services. 47 CFR § 74.1111(a) (1970). This Court, by a 5 to 4 vote but without an opinion for the Court, sustained the Commission's jurisdiction to issue these regulations in United States v. Midwest Video Corp., supra.
14
Four Justices, in an opinion by Mr. Justice Brennan, reaffirmed the view that the Commission has jurisdiction over cable television and that such authority is delimited by its statutory responsibilities over television broadcasting. They thought that the reasonably-ancillary standard announced in Southwestern permitted regulation of CATV "with a view not merely to protect but to promote the objectives for which the Commission had been assigned jurisdiction over broadcasting." 406 U.S., at 667, 92 S.Ct., at 1870. The Commission had reasonably determined, Mr. Justice Brennan's opinion declared, that the origination requirement would " 'further the achievement of long-established regulatory goals in the field of television broadcasting by increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services. . . . ' " Id., at 667-668, 92 S.Ct., at 1870, quoting First Report and Order, 20 F.C.C.2d 201, 202 (1969). The conclusion was that the "program-origination rule [was] within the Commission's authority recognized in Southwestern." 406 U.S., at 670, 92 S.Ct., at 1872.
15
The Chief Justice, in a separate opinion concurring in the result, admonished that the Commission's origination rule "strain[ed] the outer limits" of its jurisdiction. Id., at 676, 92 S.Ct., at 1875. Though not "fully persuaded that the Commission ha[d] made the correct decision in [the] case," he was inclined to defer to its judgment. Ibid.8
B
16
Because its access and capacity rules promote the long-established regulatory goals of maximization of outlets for local expression and diversification of programming—the objectives promoted by the rule sustained in Midwest Video —the Commission maintains that it plainly had jurisdiction to promulgate them. Respondents, in opposition, view the access regulations as an intrusion on cable system operations that is qualitatively different from the impact of the rule upheld in Midwest Video. Specifically, it is urged that by requiring the allocation of access channels to categories of users specified by the regulations and by depriving the cable operator of the power to select individual users or to control the programming on such channels, the regulations wrest a considerable degree of editorial control from the cable operator and in effect compel the cable system to provide a kind of common-carrier service. Respondents contend, therefore, that the regulations are not only qualitatively different from those heretofore approved by the courts but also contravene statutory limitations designed to safeguard the journalistic freedom of broadcasters, particularly the command of § 3(h) of the Act that "a person engaged in . . . broadcasting shall not . . . be deemed a common carrier." 47 U.S.C. § 153(h).
17
We agree with respondents that recognition of agency jurisdiction to promulgate the access rules would require an extension of this Court's prior decisions. Our holding in Midwest Video sustained the Commission's authority to regulate cable television with a purpose affirmatively to promote goals pursued in the regulation of television broadcasting; and the plurality's analysis of the origination requirement stressed the requirement's nexus to such goals. But the origination rule did not abrogate the cable operators' control over the composition of their programming, as do the access rules. It compelled operators only to assume a more positive role in that regard, one comparable to that fulfilled by television broadcasters. Cable operators had become enmeshed in the field of television broadcasting, and, by requiring them to engage in the functional equivalent of broadcasting, the Commission had sought "only to ensure that [they] satisfactorily [met] community needs within the context of their undertaking." 406 U.S., at 670, 92 S.Ct., at 1872 (Brennan, J.).
18
With its access rules, however, the Commission has transferred control of the content of access cable channels from cable operators to members of the public who wish to communicate by the cable medium. Effectively, the Commission has relegated cable systems, pro tanto, to common-carrier status.9 A common-carrier service in the communications context10 is one that "makes a public offering to provide [communications facilities] whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing . . . ." Report and Order, Industrial Radiolocation Service, Docket No. 16106, 5 F.C.C.2d 197, 202 (1966); see National Association of Regulatory Utility Comm'rs v. FCC, 173 U.S.App.D.C. 413, 424, 525 F.2d 630, 641, cert. denied, 425 U.S. 992, 96 S.Ct. 2203, 48 L.Ed.2d 816 (1976); Multipoint Distribution Service, 45 F.C.C.2d 616, 618 (1974). A common carrier does not "make individualized decisions, in particular cases, whether and on what terms to deal." National Association of Regulatory Utility Comm'rs v. FCC, supara, at 424, 525 F.2d, at 641.
19
The access rules plainly impose common-carrier obligations on cable operators.11 Under the rules, cable systems are required to hold out dedicated channels on a first-come, nondiscriminatory basis. 47 CFR §§ 76.254(a), 76.256(d) (1977).12 Operators are prohibited from determining or influencing the content of access programming. § 76.256(b). And the rules delimit what operators may charge for access and use of equipment. § 76.256(c). Indeed, in its early consideration of access obligations—whereby "CATV operators [would] furnish studio facilities and technical assistance [but] have no control over program content except as may be required by the Commission's rules and applicable law"—the Commission acknowledged that the result would be the operation of cable systems "as common carriers on some channels." First Report and Order in Docket No. 18397, 20 F.C.C.2d, at 207; see id., at 202; Cable Television Report and Order, 36 F.C.C.2d 143, 197 (1972). In its 1976 Order, the Commission did not directly deny that its access requirements compelled common carriage, and it has conceded before this Court that the rules "can be viewed as a limited form of common carriage-type obligation." Brief for Petitioner in No. 77-1575, p. 39. But the Commission continues to insist that this characterization of the obligation imposed by the rules is immaterial to the question of its power to issue them; its authority to promulgate the rules is assured, in the Commission's view, so long as the rules promote statutory objectives.
20
Congress, however, did not regard the character of regulatory obligations as irrelevant to the determination of whether they might permissibly be imposed in the context of broadcasting itself. The Commission is directed explicitly by § 3(h) of the Act not to treat persons engaged in broadcasting as common carriers. We considered the genealogy and the meaning of this provision in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973). The issue in that case was whether a broadcast licensee's general policy of not selling advertising time to individuals or groups wishing to speak on issues important to them violated the Communications Act of 1934 or the First Amendment. Our examination of the legislative history of the Radio Act of 1927 the precursor to the Communications Act of 1934—prompted us to conclude that "in the area of discussion of public issues Congress chose to leave broad journalistic discretion with the licensee." 412 U.S., at 105, 93 S.Ct., at 2088. We determined, in fact, that "Congress specifically dealt with—and firmly rejected—the argument that the broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues." Ibid. The Court took note of a bill reported to the Senate by the Committee on Interstate Commerce providing in part that any licensee who permits " 'a broadcasting station to be used . . . for the discussion of any question affecting the public . . . shall make no discrimination as to the use of such broadcasting station, and with respect to said matters the licensee shall be deemed a common carrier in interstate commerce: Provided, that such licensee shall have no power to censor the material broadcast.' " Id., at 106, 93 S.Ct., at 2088, quoting 67 Cong.Rec. 12503 (1926). That bill was amended to eliminate the common-carrier obligation because of the perceived lack of wisdom in " 'put[ting] the broadcaster under the hampering control of being a common carrier' " and because of problems in administering a nondiscriminatory right of access. 412 U.S., at 106, 93 S.Ct., at 2088; see 67 Cong.Rec. 12502, 12504 (1926).
21
The Court further observed that, in enacting the 1934 Act, Congress rejected still another proposal "that would have imposed a limited obligation on broadcasters to turn over their microphones to persons wishing to speak out on certain public issues." 412 U.S., at 107-108, 93 S.Ct., at 2089.13 "Instead," the Court noted, "Congress after prolonged consideration adopted § 3(h), which specifically provides that 'a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.' " Id., at 108-109, 93 S.Ct., at 2089.
22
"Congress' flat refusal to impose a 'common carrier' right of access for all persons wishing to speak out on public issues," id., at 110, 93 S.Ct., at 2090, was perceived as consistent with other provisions of the 1934 Act evincing "a legislative desire to preserve values of private journalism." Id., at 109, 93 S.Ct., at 2090. Notable among them was § 326 of the Act, which enjoins the Commission from exercising " 'the power of censorship over the radio communications or signals transmitted by any radio station,' " and commands that " 'no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.' " 412 U.S., at 110, 93 S.Ct., at 2090, quoting 47 U.S.C. § 326.
23
The holding of the Court in Columbia Broadcasting was in accord with the view of the Commission that the Act itself did not require a licensee to accept paid editorial advertisements. Accordingly, we did not decide the question whether the Act, though not mandating the claimed access, would nevertheless permit the Commission to require broadcasters to extend a range of public access by regulations similar to those at issue here. The Court speculated that the Commission might have flexibility to regulate access, 412 U.S., at 122, 93 S.Ct., at 2096, and that "[c]onceivably at some future date Congress or the Commission—or the broadcasters—may devise some kind of limited right of access that is both practicable and desirable," id., at 131, 93 S.Ct., at 2100. But this is insufficient support for the Commission's position in the present case. The language of § 3(h) is unequivocal; it stipulates that broadcasters shall not be treated as common carriers. As we see it, § 3(h), consistently with the policy of the Act to preserve editorial control of programming in the licensee, forecloses any discretion in the Commission to impose access requirements amounting to common-carrier obligations on broadcast systems.14 The provision's background manifests a congressional belief that the intrusion worked by such regulation on the journalistic integrity of broadcasters would overshadow any benefits associated with the resulting public access. It is difficult to deny, then, that forcing broadcasters to develop a "nondiscriminatory system for controlling access . . . is precisely what Congress intended to avoid through § 3(h) of the Act." 412 U.S., at 140 n. 9, 93 S.Ct., at 2105, (Stewart, J., concurring); see id., at 152, and n. 2, 93 S.Ct., at 2111 (Douglas, J., concurring in judgment).15
24
Of course, § 3(h) does not explicitly limit the regulation of cable systems. But without reference to the provisions of the Act directly governing broadcasting, the Commission's jurisdiction under § 2(a) would be unbounded. See United States v. Midwest Video Corp.,, 406 U.S., at 661, 92 S.Ct., at 1867 (opinion of Brennan, J.). Though afforded wide latitude in its supervision over communication by wire, the Commission was not delegated unrestrained authority. The Court regarded the Commission's regulatory effort at issue in Southwestern as consistent with the Act because it had been found necessary to ensure the achievement of the Commission's statutory responsibilities.16 Specifically, regulation was imperative to prevent interference with the Commission's work in the broadcasting area. And in Midwest Video the Commission had endeavored to promote long-established goals of broadcasting regulation. Petitioners do not deny that statutory objectives pertinent to broadcasting bear on what the Commission might require cable systems to do. Indeed, they argue that the Commission's authority to promulgate the access rules derives from the relationship of those rules to the objectives discussed in Midwest Video. But they overlook the fact that Congress has restricted the Commission's ability to advance objectives associated with public access at the expense of the journalistic freedom of persons engaged in broadcasting.
25
That limitation is not one having peculiar applicability to television broadcasting. Its force is not diminished by the variant technology involved in cable transmissions. Cable operators now share with broadcasters a significant amount of editorial discretion regarding what their programming will include. As the Commission, itself, has observed, "both in their signal carriage decisions and in connection with their origination function, cable television systems are afforded considerable control over the content of the programming they provide." Report and Order in Docket No. 20829, (1978).17
26
In determining, then, whether the Commission's assertion of jurisdiction is "reasonably ancillary to the effective performance of [its] various responsibilities for the regulation of television broadcasting," United States v. Southwestern Cable Co., 392 U.S., at 178, 88 S.Ct., at 2005, we are unable to ignore Congress' stern disapproval—evidenced in § 3(h)—of negation of the editorial discretion otherwise enjoyed by broadcasters and cable operators alike. Though the lack of congressional guidance has in the past led us to defer—albeit cautiously—to the Commission's judgment regarding the scope of its authority, here there are strong indications that agency flexibility was to be sharply delimited.
27
The exercise of jurisdiction in Midwest Video, it has been said, "strain[ed] the outer limits" of Commission authority. 406 U.S., at 676, 92 S.Ct., at 1874 (Burger, C. J., concurring in result). In light of the hesitancy with which Congress approached the access issue in the broadcast area, and in view of its outright rejection of a broad right of public access on a common-carrier basis, we are constrained to hold that the Commission exceeded those limits in promulgating its access rules.18 The Commission may not regulate cable systems as common carriers, just as it may not impose such obligations on television broadcasters. We think authority to compel cable operators to provide common carriage of public-originated transmissions must come specifically from Congress.19
28
Affirmed.
29
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
30
In 1969, the Commission adopted a rule requiring cable television systems to originate a significant number of local programs. In United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390, the Court upheld the Commission's authority to promulgate this "mandatory origination" rule. Thereafter, the Commission decided that less onerous rules would accomplish its purpose of "increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services."1 Accordingly, it adopted the access rules that the Court invalidates today.2
31
In my opinion the Court's holding in Midwest Video that the mandatory origination rules were within the Commission's statutory authority requires a like holding with respect to the less burdensome access rules at issue here. The Court's contrary conclusion is based on its reading of § 3(h) of the Act as denying the Commission the power to impose common-carrier obligations on broadcasters. I am persuaded that the Court has misread the statute.
Section 3(h) provides:
32
" 'Common carrier' or 'carrier' means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier." 47 U.S.C. § 153(h).
33
Section 3 is the definitional section of the Act. It does not purport to grant or deny the Commission any substantive authority. Section 3(h) makes it clear that every broadcast station is not to be deemed a common carrier, and therefore subject to common-carrier regulation under Title II of the Act, simply because it is engaged in radio broadcasting. But nothing in the words of the statute or its legislative history suggests that § 3(h) places limits on the Commission's exercise of powers otherwise within its statutory authority because a lawfully imposed requirement might be termed a "common carrier obligation."3
34
The Commission's understanding supports this reading of § 3(h). In past decisions interpreting FCC authority under the Communications Act, "we [have been] guided by the 'venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.' " Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 121, 93 S.Ct. 2080, 2096, 36 L.Ed.2d 772, quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371. The Commission's construction of § 3(h) is clear: it has never interpreted that provision, or any other in the Communications Act, as a limitation on its authority to impose common-carrier obligations on cable systems.
35
The Commission's 1966 rules, which gave rise to this Court's decision in United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001, imposed just such an obligation. Under those rules, local systems were required to carry, upon request and in a specific order of priority, the signals of broadcast stations into whose viewing area they bring competing signals.4 And its 1969 rules, according to the FCC Report and Order, reflected the Commission's view "that a multi-purpose CATV operation combining carriage of broadcast signals with program origination and common carrier services, might best exploit cable channel capacity to the advantage of the public and promote the basic purpose for which this Commission was created."5 Finally, in adopting the rules at issue here, the Commission explicitly rejected the rationale the Court accepts today:
36
"So long as the rules adopted are reasonably related to achieving objectives for which the Commission has been assigned jurisdiction we do not think they can be held beyond our authority merely by denominating them as somehow 'common carrier' in nature. The proper question, we believe, is not whether they fall in one category or another of regulation—whether they are more akin to obligations imposed on common carriers or obligations imposed on broadcasters to operate in the public interest—but whether the rules adopted promote statutory objectives." 59 F.C.C.2d 294, 299 (1976).
37
In my judgment, this is the correct approach. Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, relied upon almost exclusively by the majority, is not to the contrary. In that case, we reviewed the provisions of the Communications Act, including § 3(h), which had some bearing on the access question presented. We emphasized, as does the majority here, that "Congress has time and again rejected various legislative attempts that would have mandated a variety of forms of individual access." 412 U.S., at 122, 93 S.Ct., at 2096. But we went on to conclude: "That is not to say that Congress' rejection of such proposals must be taken to mean that Congress is opposed to private rights of access under all circumstances. Rather, the point is that Congress has chosen to leave such questions with the Commission, to which it has given the flexibility to experiment with new ideas as changing conditions require." Ibid. (emphasis added).6
38
The Commission here has exercised its "flexibility to experiment" in choosing to replace the mandatory origination rule upheld in Midwest Video with what it views as the less onerous local access rules at issue here. I have no reason to doubt its conclusion that these rules, like the mandatory origination rule they replace, do promote the statutory objectives of "increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services." And under this Court's holding in Midwest Video, this is all that is required to uphold the jurisdiction of the Commission to promulgate these rules. Since Congress has not seen fit to modify the scope of the statute as construed in Midwest Video, I would therefore reverse the judgment of the Court of Appeals for the Eighth Circuit and remand the case with instructions to decide the constitutional issue.
1
Systems in the top 100 markets and in operation prior to March 31, 1972, and other systems in operation by March 31, 1977, are given until June 21, 1986, to comply with the channel capacity and two-way communication requirements. 47 CFR § 76.252(b) (1977).
2
Activated channel capacity consists of the number of usable channels that the system actually provides to the subscriber's home or that it could provide by making certain modifications to its facilities. 1976 Order, 59 F.C.C.2d, at 315. The great majority of systems constructed in the major markets from 1962 to 1972 were designed with a 12-channel capacity. Often, additional channels may be activated by installing converters on subscribers' home sets, albeit at substantial cost. See Notice of Proposed Rule Making, 53 F.C.C.2d 782, 785 (1975).
In determining the number of activated channels available for access use, channels already programmed by the cable operator for which a separate charge is made are excluded. Similarly, channels utilized for transmission of television broadcast signals are subtracted. The remaining channels deemed available for access use include channels provided to the subscriber but not programmed and channels carrying other nonbroadcast programming such as programming originated by the system operator—for which a separate assessment is not made. 1976 Order, supra, at 315-316. The Commission has indicated that it will "not consider as acting in good faith an operator with a system of limited activated channel capability who attempts to displace existing access uses with his own origination efforts." Id., at 316. Additionally, the Commission has stated that pay entertainment programming should not be "provided at the expense of local access efforts which are displaced. Should a system operator for example have only one complete channel available to provide access services we shall consider it as clear evidence of bad faith in complying with his access obligations if such operator decides to use that channel to provide pay programming." Id., at 317.
3
Cable systems in operation on June 21, 1976, that lack sufficient activated channel capacity to furnish one full channel for access purposes may meet their access obligations by providing whatever portions of channels that are available for such purposes. 47 CFR § 76.254(c) (1977). Systems initiated after that date, and existing systems desirous of adding a nonmandatory broadcast signal after that date, must supply one full channel for access use even if they must install converters to do so. See 1976 Order, supra, at 314-315.
4
Cable systems were also required to promulgate rules prohibiting the transmission of obscene and indecent material on access channels. 47 CFR § 76.256(d) (1977). The Court of Appeals for the District of Columbia Circuit stayed this aspect of the rules in an order filed in American Civil Liberties Union v. FCC, No. 76-1695 (Aug. 26, 1977). The court below, moreover, disapproved the requirement in the belief that it imposed censorship obligations on cable operators. The Commission has instituted a review of the requirement, and it is not now in controversy before this Court.
5
In the court below, the American Civil Liberties Union (ACLU), petitioner in No. 77-1648, challenged the Commission's modification of its 1972 access rules, which were less favorable to cable operators than are the regulations finally embraced. The ACLU requests that we remand these cases for further consideration of its challenge in the event that we reverse the judgment of the Eighth Circuit. As we affirm the judgment below, we necessarily decline the ACLU's invitation to remand.
6
CATV, or "community antenna television," refers to systems that receive television broadcast signals, amplify them, transmit them by cable or microwave, and distribute them by wire to subscribers. United States v. Southwestern Cable Co., 392 U.S. 157, 161, 88 S.Ct. 1994, 1996, 20 L.Ed.2d 1001 (1968). "Because of the broader functions to be served by such facilities in the future," the Commission adopted the "more inclusive term cable television systems" in Cable Television Report and Order in Docket No. 18397, 36 F.C.C.2d 143, 144 n. 9 (1972).
7
The validity of the particular regulations issued by the Commission was not at issue in Southwestern. See 392 U.S., at 167, 88 S.Ct., at 1999. In dicta in United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972), the plurality noted that Southwestern had properly been applied by the courts of appeals to sustain the validity of the rules. Id., at 659 n. 17, 92 S.Ct., at 1866.
8
The Commission repealed its mandatory origination rule in December 1974. It explained:
"Quality, effective, local programming demands creativity and interest. These factors cannot be mandated by law or contract. The net effect of attempting to require origination has been the expenditure of large amounts of money for programming that was, in many instances, neither wanted by subscribers nor beneficial to the system's total operation. In those cases in which the operator showed an interest or the cable community showed a desire for local programming, an outlet for local expression began to develop, regardless of specific legal requirements. During the suspension of the mandatory rule, cable operators have used business judgment and discretion in their origination decisions. For example, some operators have felt compelled to originate programming to attract and retain subscribers. These decisions have been made in light of local circumstances. This, we think, is as it should be." Report and Order in Docket No. 19988, 49 F.C.C.2d 1090, 1105-1106.
9
A cable system may operate as a common carrier with respect to a portion of its service only. See National Association of Regulatory Utility Comm'rs v. FCC, 174 U.S.App.D.C. 374, 381, 533 F.2d 601, 608 (1976) (opinion of Wilkey, J.) ("Since it is clearly possible for a given entity to carry on many types of activities, it is at least logical to conclude that one can be a common carrier with regard to some activities but not others"); First Report and Order in Docket No. 18397, 20 F.C.C.2d 201, 207 (1969).
10
Section 3(h) defines "common carrier" as "any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy . . . ." Due to the circularity of the definition, resort must be had to court and agency pronouncements to ascertain the term's meaning. See National Association of Regulatory Utility Comm'rs v. FCC, 173 U.S.App.D.C. 413, 423, 525 F.2d 630, 640, cert. denied, 425 U.S. 992, 96 S.Ct. 2203, 48 L.Ed.2d 816 (1976); Frontier Broadcasting Co. v. Collier, 24 F.C.C. 251, 254 (1958); H.R.Conf.Rep.No.1918, 73d Cong., 2d Sess., 46 (1934).
11
As we have noted, and as the Commission has held, cable systems otherwise "are not common carriers within the meaning of the Act." United States v. Southwestern Cable Co., 392 U.S., at 169 n. 29, 88 S.Ct., at 2001; see Frontier Broadcasting Co. v. Collier, supra.
12
See also 1976 Order, 59 F.C.C.2d, at 316 ("We expect the operator in general to administer all access channels on a first come, first served non-discriminatory basis").
13
The proposal adopted by the Senate provided:
"[I]f any licensee shall permit any person to use a broadcasting station in support of or in opposition to any candidate for public office, or in the presentation of views on a public question to be voted upon at an election, he shall afford equal opportunity to an equal number of other persons to use such station in support of an opposing candidate for such public office, or to reply to a person who has used such broadcasting station in support of or in opposition to a candidate, or for the presentation of opposite views on such public questions."
See Hearings on S.2910 before the Senate Committee on Interstate Commerce, 73d Cong., 2d Sess., 19 (1934). The portion regarding discussion of public issues was excised by the House-Senate Conference. See H.R.Conf.Rep.No.1918, 73d Cong., 2d Sess., 49 (1934).
14
Whether less intrusive access regulation might fall within the Commission's jurisdiction, or survive constitutional challenge even if within the Commission's power, is not presently before this Court. Certainly, our construction of § 3(h) does not put into question the statutory authority for the fairness-doctrine obligations sustained in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The fairness doctrine does not require that a broadcaster provide common carriage; it contemplates a wide range of licensee discretion. See Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1251 (1949) (in meeting fairness-doctrine obligations the "licensee will in each instance be called upon to exercise his best judgment and good sense in determining what subjects should be considered, the particular format of the programs to be devoted to each subject, the different shades of opinion to be presented, and the spokesmen for each point of view").
15
The dissent maintains that § 3(h) does not place "limits on the Commission's exercise of powers otherwise within its statutory authority because a lawfully imposed requirement might be termed a 'common carrier obligation.' " Post, at 710-711. Rather, § 3(h) means only that "every broadcast station is not to be deemed a common carrier, and therefore subject to common-carrier regulation under Title II of the Act, simply because it is engaged in radio broadcasting." Post, at 710. But Congress was plainly anxious to avoid regulation of broadcasters as common carriers under Title II, which commands, inter alia, that regulated entities shall "furnish . . . communication service upon reasonable request therefor." 47 U.S.C. § 201(a). Our review of the Act in Columbia Broadcasting led us to conclude that § 3(h) embodies a substantive determination not to abrogate a broadcaster's journalistic independence for the purpose of, and as a result of, furnishing members of the public with media access:
"Congress pointedly refrained from divesting broadcasters of their control over the selection of voices; § 3(h) of the Act stands as a firm congressional statement that broadcast licensees are not to be treated as common carriers, obliged to accept whatever is tendered by members of the public. [The] provisio[n] clearly manifest[s] the intention of Congress to maintain a substantial measure of journalistic independence for the broadcast licensee." 412 U.S., at, 116, 93 S.Ct., at 2093.
We now reaffirm that view of § 3(h): The purpose of the provision and its mandatory wording preclude Commission discretion to compel broadcasters to act as common carriers, even with respect to a portion of their total services. As we demonstrate in the following text, that same constraint applies to the regulation of cable television systems.
16
The Commission contends that the signal carriage rules involved in Southwestern are, in part, analogous to the Commission's access rules in question here. The signal carriage rules required, inter alia, that cable operators transmit, upon request, the broadcast signals of broadcast licensees into whose service area the cable operator imported competing signals. See First Report and Order in Docket No. 14895, 38 F.C.C. 683, 716-719 (1965). But that requirement did not amount to a duty to hold out facilities indifferently for public use and thus did not compel cable operators to function as common carriers. See supra, at 701. Rather, the rule was limited to remedying a specific perceived evil and thus involved a balance of considerations not addressed by § 3(h).
17
We do not suggest, nor do we find it necessary to conclude, that the discretion exercised by cable operators is of the same magnitude as that enjoyed by broadcasters. Moreover, we reject the contention that the Commission's access rules will not significantly compromise the editorial discretion actually exercised by cable operators. At least in certain instances the access obligations will restrict expansion of other cable services. See nn. 2, 3, supra. And even when not occasioning the displacement of alternative programming, compelling cable operators indiscriminately to accept access programming will interfere with their determinations regarding the total service offering to be extended to subscribers.
18
The Commission has argued that the capacity, access, and facilities regulations should not be reviewed as a unit, but as discrete rules entailing unique considerations. But the Commission concedes that the facilities and access rules are integrally related, see Brief for Petitioner in No. 77-1575, p. 36 n. 32, and acknowledges that the capacity rules were adopted in part to complement the access requirement, see id., at 35; 1976 Order, 59 F.C.C.2d, at 313, 322. At the very least it is unclear whether any particular rule or portion thereof would have been promulgated in isolation. Accordingly, we affirm the lower court's determination to set aside the amalgam of rules without intimating any view regarding whether a particular element thereof might appropriately be revitalized in a different context.
19
The court below suggested that the Commission's rules might violate the First Amendment rights of cable operators. Because our decision rests on statutory grounds, we express no view on that question, save to acknowledge that it is not frivolous and to make clear that the asserted constitutional issue did not determine or sharply influence our construction of the statute. The Court of Appeals intimated, additionally, that the rules might effect an unconstitutional "taking" of property or, by exposing a cable operator to possible criminal prosecution for offensive cablecasting by access users over which the operator has no control, might affront the Due Process Clause of the Fifth Amendment. We forgo comment on these issues as well.
1
The quotation is from the report accompanying the promulgation of the 1969 rules. See First Report and Order, 20 F.C.C.2d 201, 202 (1969) (1969 Order ). The report accompanying the 1976 rules identifies precisely the same purpose. See Report and Order in Docket 20508, 59 F.C.C.2d 294, 298 (1976) (App. 103).
2
By the time of this Court's decision in Midwest Video, the Commission had adopted limited-access and channel-capacity rules. See Cable Television Report and Order in Docket No. 18397,, 36 F.C.C.2d 143 (1972); American Civil Liberties Union v. FCC, 523 F.2d 1344 (CA9 1975). In 1974, the Commission largely repealed the mandatory origination rule at issue in Midwest Video on the grounds that access was found to be a less burdensome and equally effective means of furthering the same statutory objectives. See Report and Order in Docket No. 19988, 49 F.C.C.2d 1090, 1099-1100, 1104-1106 (1974). The 1972 access rules were reviewed and amended in 1976, see Report and Order in Docket No. 20508, supra, and it is these rules that are at issue here.
3
The Senate Report on the Communications Act of 1934, for example, simply stated:
"Section 3: Contains the definitions. Most of these are taken from the Radio Act, the Interstate Commerce Act, and international conventions." S.Rep.No.781, 73d Cong., 2d Sess., 3 (1934).
The House Report was only slightly more detailed; as to § 3(h), it explained:
"Since a person must be a common carrier for hire to come within this definition, it does not include press associations or other organizations engaged in the business of collecting and distributing news services, which may refuse to furnish to any person service which they are capable of furnishing, and may furnish service under varying arrangements, establishing the service to be rendered, the terms under which rendered, and the charges therefor." H.R.Rep.No.1850, 73d Cong., 2d Sess., 4 (1934).
Finally, the Conference Report "noted that the definition does not include any person if not a common carrier in the ordinary sense of the term." H.R.Conf.Rep.No.1918, 73d Cong., 2d Sess., 46 (1934).
Section 3(h), it seems clear to me, cannot be read to be directly applicable to cable systems in any regard. Such systems are not, in the full range of their activities, "common carrier[s] in the ordinary sense of the term." And, as relevant here, they are technically not broadcasters at all; what they are engaged in is the distinct process of "cablecasting." See, 1969 Order, supra, at 223.
4
See Second Report and Order in Docket 14895, 2 F.C.C.2d 725 (1966). The Southwestern Cable Court did not pass upon the validity of these rules. Mr. Justice Brennan's opinion for the plurality in United States v. Midwest Video Corp., 406 U.S. 649, 659 n. 17, 92 S.Ct. 1860, 1866, noted that "[t]heir validity was, however, subsequently and correctly upheld by courts of appeals as within the guidelines of that decision. See, e. g., Black Hills Video Corp. v. FCC, 399 F.2d 65 (CA8 1968)."
5
1969 Order, 20 F.C.C.2d, at 202. See also United States v. Midwest Video Corp., supra, at 654 n. 8, 92 S.Ct., at 1863 (plurality opinion):
"Although the Commission did not impose common carrier obligations on CATV systems in its 1969 report, it did note that 'the origination requirement will help ensure that origination facilities are available for use by others originating on leased channels.' First Report and Order 209. Public access requirements were introduced in the Commission's Report and Order on Cable Television Service, although not directly under the heading of common-carrier service. See [Report and Order on Cable Television Service] 3277."
6
While the Court in Columbia Broadcasting System, Inc. v. Democratic National Committee, went on to reject the claim that the Commission's refusal to require broadcasters to accept paid political advertisements was unconstitutional, it also recognized that "[c]onceivably at some future date Congress or the Commission or the broadcasters—may devise some kind of limited right of access that is both practicable and desirable" and noted the rules at issue here as an example. 412 U.S., at 131, 93 S.Ct., at 2100.
| 78
|
59 L.Ed.2d 733
99 S.Ct. 1465
440 U.S. 741
UNITED STATES, Petitioner,v.Alfredo L. CACERES.
No. 76-1309.
Argued Jan. 8, 9, 1979.
Decided April 2, 1979.
Syllabus
Regulations in the Internal Revenue Service Manual prohibit "consensual electronic surveillance" between taxpayers and IRS agents unless certain specified prior authorization is obtained. With respect to the monitoring of face-to-face (nontelephone) conversations, the Director of the Internal Security Division or the Assistant Commissioner (Inspection) of the IRS may authorize the recording of such conversations in emergency situations, but if there is at least 48 hours in which to obtain approval, a signed request must also be submitted to the Attorney General or a designated Assistant Attorney General. In connection with the audit of the income tax returns of respondent and his wife, an IRS agent met with respondent on, among other dates, January 31 and February 6, 1975. Emergency approval for the use of electronic equipment at both meetings was obtained, pending a request to the Justice Department for authority to monitor conversations with respondent for a 30-day period, but such authority was never obtained for the January 31 and February 6 meetings. At these meetings, respondent, unaware of the surveillance, paid or offered money to the agent for a favorable resolution of the audit. The agent at both meetings wore a concealed radio transmitter which allowed other agents to monitor and record the conversations. Subsequently, respondent was prosecuted for bribing the IRS agent. At his trial he moved to suppress tape recordings of the conversations on the ground that the authorizations required by the IRS regulations had not been secured. The District Court granted the motion, and the Court of Appeals affirmed. Both courts held that the meetings had not been monitored in accordance with the IRS regulations, concluding that neither meeting fell within the emergency provision of the regulations because the exigencies were the product of "government-created scheduling problems." Held: The tape recordings, and the testimony of the agents who monitored the meetings in question, were not required to be excluded from evidence because of the conceded violation of the IRS regulations. Pp. 749-757.
(a) While a court has a duty to enforce an agency regulation when compliance with the regulation is mandated by the Constitution or federal law, here the agency was not required either by the Constitution, Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462; United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, or by statute, Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103, distinguished, to adopt any particular procedures or rules before engaging in consensual monitoring and recording. Pp. 749-751.
(b) None of respondent's constitutional rights was violated either by the actual recording or by the agency's violation of its own regulations. That respondent's conversations were monitored without Justice Department approval, whereas conversations of others similarly situated would, assuming the IRS generally follows its own regulations, be recorded only with such approval, does not amount to a denial of equal protection. Nor does the IRS officials' construction of the situation as an emergency, even if erroneous, raise any constitutional questions. And this is not a case in which the Due Process Clause is implicated, since respondent cannot reasonably contend that he relied on the regulations or that their breach had any effect on his conduct. Finally, the Administrative Procedure Act provides no grounds for judicial enforcement of the violated regulations, since the remedy sought is not invalidation of the agency action but rather judicial enforcement of the regulations by means of the exclusionary rule. Pp. 751-755.
(c) This Court declines to adopt any rigid exclusionary rule, such as is urged by respondent, whereby all evidence obtained in violation of regulations concerning electronic eavesdropping would be excluded. Nor can this Court accept respondent's further argument that even without a rigid rule of exclusion, his is a case in which evidence secured in violation of agency regulations should be excluded under a more limited, individualized approach, since, to the contrary, this case exemplifies those situations in which evidence would not be excluded under a case-by-case approach, it appearing that the agency action, though later found to violate the regulations, nonetheless reflected a reasonable, good-faith attempt to comply in a situation in which monitoring was appropriate and would have received Justice Department approval if the request had been received more promptly. Pp. 755-757.
545 F.2d 1182, reversed.
James J. Brosnahan, San Francisco, Cal., for respondent.
Kenneth S. Geller, Dept. of Justice, Washington, D.C., for petitioner.
Mr. Justice STEVENS delivered the opinion of the Court.
1
The question we granted certiorari to decide is whether evidence obtained in violation of Internal Revenue Service (IRS) regulations may be admitted at the criminal trial of a taxpayer accused of bribing an IRS agent. 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978).
2
Unbeknown to respondent, three of his face-to-face conversations with IRS Agent Yee were monitored by means of a radio transmitter concealed on Yee's person. Respondent moved to suppress tape recordings of the three conversations on the ground that the authorizations required by IRS regulations had not been secured. The District Court granted the motion. The Court of Appeals for the Ninth Circuit reversed as to the third tape; it concluded that adequate authorization had been obtained.1 As to the first two tapes, however, the Court of Appeals agreed with the District Court both that the IRS regulations had not been followed and that exclusion of the recordings was therefore required. It is the latter conclusion that is at issue here.
3
The Government argues that exclusion of probative evidence in a criminal trial is an inappropriate sanction for violation of an executive department's regulations. In this case, moreover, it argues that suppression is especially inappropriate because the violation of the regulation was neither deliberate nor prejudicial, and did not affect any constitutional or statutory rights. We agree that suppression should not have been ordered in this case, and therefore reverse the judgment of the Court of Appeals.
4
* Neither the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the conversants.2 Such "consensual electronic surveillance" between taxpayers and IRS agents is, however, prohibited by IRS regulations unless appropriate prior authorization is obtained.3
5
The IRS Manual sets forth in detail the procedures to be followed in obtaining such approvals.4 For all types of requests the regulations require an explanation of the reasons for the proposal, the type of equipment to be used, the names of the persons involved, and the duration of the proposed monitoring.
6
Approval by as many as three different levels of authority may be required, depending on the kind of surveillance that is contemplated and the circumstances of the request. Telephone conversations may be monitored with the approval of an Assistant Regional Inspector of the Internal Security Division. Such advance approval may be requested and given verbally, although the authorization must subsequently be confirmed in writing. The monitoring of nontelephone conversations requires approval at the national as well as the regional level. In emergency situations, the Director, or Acting Director, Internal Security Division, or the Assistant Commissioner (Inspection) may authorize the recording. If there is at least 48 hours in which to obtain approval, a signed request must also be submitted to the Attorney General of the United States, or a designated Assistant Attorney General, by the Director or Acting Director of the Internal Security Division.
II
7
On March 14, 1974, Agent Yee met with respondent and his wife in connection with an audit of their 1971 income tax returns. After Mrs. Caceres left the meeting, respondent offered Yee a "personal settlement" of $500 in exchange for a favorable resolution of the audit. When he returned to the IRS office, Yee reported the offer to his superiors and prepared an affidavit describing it.5
8
The record reflects no further discussion of the offer until January 1975. It does indicate, however, that one telephone conversation between Yee and respondent, on March 21, 1974, was recorded with authorization,6 and that authority was also obtained to monitor face-to-face conversations with respondent from time to time during the period between March and September 1974.7 Yee continued to work on the audit of respondent's records throughout this period, but his meetings, until January 1975, were with Mrs. Caceres and the Caceres' accountant.8
9
On January 27, 1975, Yee had a meeting with respondent that was not recorded. According to Yee's affidavit,9 the meeting proceeded in two stages. First, he discussed his calculations with respondent, Mrs. Caceres, and their accountant. When respondent and his wife asked for an additional week to check their records, Yee told them it would be necessary to sign an extension because the statute of limitations would otherwise expire soon. Respondent stated that he would have to consult his attorney before signing any extension, and would call Yee with his decision later that day.
10
Yee then left the office to return to his car. He was followed by respondent, who revived the subject of a "personal settlement." This time, respondent indicated that he had $500 that he would give Yee immediately, with an additional $500 to be paid when the matter was finally settled. Yee refused the offer, but at respondent's insistence, eventually stated that he might consider it.
11
In subsequent conversations initiated by Agent Yee, all of which were monitored,10 respondent indicated that he was not prepared for another meeting with Yee. Finally, in a conversation on January 30 at 5:15 p. m., respondent agreed to a meeting the following day at 2 p. m. At 8:15 a. m. on the 31st, the Regional Inspector in San Francisco telephoned the Director of Internal Security in Washington and obtained emergency approval for the use of electronic equipment to monitor the meeting that afternoon. On the same day, a written request for authority to monitor face-to-face conversations for a period of 30 days was initiated and, in due course, forwarded to Washington for submission to the Department of Justice.
12
At the meeting on the 31st, respondent gave Yee $500 and promised to give him an additional $500 when he received a notice from IRS showing his deficiency at an amount upon which he and Yee had agreed. As in all his future meetings with respondent, Yee wore a concealed radio transmitter which allowed other agents to monitor and record their conversation.
13
Yee next called respondent on February 5 and arranged a meeting for the next day to review the audit agreement. Because the Department of Justice had not yet acted on, or perhaps even received, the request for a 30-day authorization, the Regional Inspector again requested and obtained emergency approval to monitor the meeting with respondent. At the February 6 meeting, respondent renewed his promise to pay an additional $500 in connection with the 1971 return, and also offered Yee another $2,000 for help in settling his 1973 and 1974 returns.
14
On February 11, a Deputy Assistant Attorney General approved the request for authority to monitor Yee's conversations with respondent for 30 days. The approval was received in time to cover a meeting held that day at which Yee was paid the additional $500. Because the 30-day period did not commence until February 11, however, no approval from the Department of Justice was ever obtained for the earlier monitorings of January 31 and February 6.
15
The District Court and the Court of Appeals both held that the two earlier meetings had not been monitored in accordance with IRS regulations, since Justice Department approval had not been secured. The courts recognized that such approval is not required, by the terms of the regulations, in "emergency situations" when less than 48 hours is available to secure authorization. They recognized, too, that in each instance, less than 48 hours did exist between the time the IRS initiated its request for monitoring approval and the time of the scheduled meeting with Yee. But the courts concluded that neither meeting fell within the emergency provision of the regulations because the exigencies were the product of "government-created scheduling problems."11
16
The Government does not challenge that conclusion. We are therefore presented with the question whether the tape recordings, and the testimony of the agents who monitored the January 31 and February 6 conversations, should be excluded because of the violation of the IRS regulations.
III
17
A court's duty to enforce an agency regulation is most evident when compliance with the regulation is mandated by the Constitution or federal law. In Bridges v. Wixon, 326 U.S. 135, 152-153, 65 S.Ct. 1443, 1451-1452, 89 L.Ed. 2103, for example, this Court held invalid a deportation ordered on the basis of statements which did not comply with the Immigration Service's rules requiring signatures and oaths, finding that the rules were designed "to afford [the alien] due process of law" by providing "safeguards against essentially unfair procedures."12
18
In this case, however, unlike Bridges v. Wixon, the agency was not required by the Constitution or by statute to adopt any particular procedures or rules before engaging in consensual monitoring and recording. While Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., regulates electronic surveillance conducted without the consent of either party to a conversation, federal statutes impose no restrictions on recording a conversation with the consent of one of the conversants.
19
Nor does the Constitution protect the privacy of individuals in respondent's position. In Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462, we held that the Fourth Amendment provided no protection to an individual against the recording of his statements by the IRS agent to whom he was speaking. In doing so, we repudiated any suggestion that the defendant had a "constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment," concluding instead that "the risk that petitioner took in offering a bribe to [the IRS agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording." The same analysis was applied in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, to consensual monitoring and recording by means of a transmitter concealed on an informant's person, even though the defendant did not know that he was speaking with a Government agent:
20
"Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S. [293], at 300-303, [87 S.Ct. 408, 17 L.Ed.2d 374.] For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra ; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States [343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270.] If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks." United States v. White, supra, at 751, 91 S.Ct., at 1125 (opinion of WHITE, J.).13
21
Our decisions in Lopez and White demonstrate that the IRS was not required by the Constitution to adopt these regulations.14 It is equally clear that the violations of agency regulations disclosed by this record do not raise any constitutional questions.
22
It is true, of course, that respondent's conversations were monitored without the approval of the Department of Justice, whereas the conversations of others in a similar position would, assuming the IRS generally follows its regulations, be recorded only with Justice Department approval. But this difference does not even arguably amount to a denial of equal protection. No claim is, or reasonably could be, made that if the IRS had more promptly addressed this request to the Department of Justice, it would have been denied. As a result, any inconsistency of which respondent might complain is purely one of form, with no discernible effect in this case on the action taken by the agency and its treatment of respondent.
23
Moreover, the failure to secure Justice Department authorization, while conceded here to be a violation of the IRS regulations, was attributable to the fact that the IRS officials responsible for administration of the relevant regulations, both in San Francisco and Washington, construed the situation as an emergency within the meaning of those regulations. Their construction of their own regulations, even if erroneous, was not obviously so. That kind of error by an executive agency in interpreting its own regulations surely does not raise any constitutional questions.
24
Nor is this a case in which the Due Process Clause is implicated because an individual has reasonably relied on agency regulations promulgated for his guidance or benefit and has suffered substantially because of their violation by the agency.15 Respondent cannot reasonably contend that he relied on the regulation, or that its breach had any effect on his conduct. He did not know that his conversations with Yee were being recorded without proper authority. He was, of course, prejudiced in the sense that he would be better off if all monitoring had been postponed until after the Deputy Assistant Attorney General's approval was obtained on February 11, 1975, but precisely the same prejudice would have ensued if the approval had been issued more promptly. For the record makes it perfectly clear that a delay in processing the request, rather than any doubt about its propriety or sufficiency, was the sole reason why advance authorization was not obtained before February 11.
25
Finally, the Administrative Procedure Act16 provides no grounds for judicial enforcement of the regulation violated in this case. The APA authorizes judicial review and invalidation of agency action that is arbitrary, capricious, an abuse of discretion, or not in accordance with law, as well as action taken "without observance of procedure required by law."17 Agency violations of their own regulations, whether or not also in violation of the Constitution, may well be inconsistent with the standards of agency action which the APA directs the courts to enforce.18 Indeed, some of our most important decisions holding agencies bound by their regulations have been in cases originally brought under the APA.19
26
But this is not an APA case, and the remedy sought is not invalidation of the agency action. Rather, we are dealing with a criminal prosecution in which respondent seeks judicial enforcement of the agency regulations by means of the exclusionary rule. That rule has primarily rested on the judgment that the importance of deterring police conduct that may invade the constitutional rights of individuals throughout the community outweighs the importance of securing the conviction of the specific defendant on trial.20 In view of our conclusion that none of respondent's constitutional rights has been violated here, either by the actual recording or by the agency violation of its own regulations, our precedents enforcing the exclusionary rule to deter constitutional violations provide no support for the rule's application in this case.21
IV
27
Respondent argues that the regulations concerning electronic eavesdropping, even though not required by the Constitution or by statute, are of such importance in safeguarding the privacy of the citizenry that a rigid exclusionary rule should be applied to all evidence obtained in violation of any of their provisions. We do not doubt the importance of these rules. Nevertheless, without pausing to evaluate the Government's challenge to our power to do so,22 we decline to adopt any rigid rule requiring federal courts to exclude any evidence obtained as a result of a violation of these rules.
28
Regulations governing the conduct of criminal investigations are generally considered desirable, and may well provide more valuable protection to the public at large than the deterrence flowing from the occasional exclusion of items of evidence in criminal trials.23 Although we do not suggest that a suppression order in this case would cause the IRS to abandon or modify its electronic surveillance regulations, we cannot ignore the possibility that a rigid application of an exclusionary rule to every regulatory violation could have a serious deterrent impact on the formulation of additional standards to govern prosecutorial and police procedures.24 Here, the Executive itself has provided for internal sanctions in cases of knowing violations of the electronic-surveillance regulations.25 To go beyond that, and require exclusion in every case, would take away from the Executive Department the primary responsibility for fashioning the appropriate remedy for the violation of its regulations. But since the content, and indeed the existence, of the regulations would remain within the Executive's sole authority, the result might well be fewer and less protective regulations. In the long run, it is far better to have rules like those contained in the IRS Manual, and to tolerate occasional erroneous administration of the kind displayed by this record, than either to have no rules except those mandated by statute, or to have them framed in a mere precatory form.
29
Nor can we accept respondent's further argument that even without a rigid rule of exclusion, his is a case in which evidence secured in violation of the agency regulation should be excluded on the basis of a more limited, individualized approach. Quite the contrary, this case exemplifies those situations in which evidence would not be excluded if a case-by-case approach were applied. The two conversations at issue here were recorded with the approval of the IRS officials in San Francisco and Washington. In an emergency situation, which the agents thought was present, this approval would have been sufficient. The agency action, while later found to be in violation of the regulations, nonetheless reflected a reasonable, good-faith attempt to comply in a situation in which no one questions that monitoring was appropriate and would have certainly received Justice Department authorization, had the request been received more promptly. In these circumstances, there is simply no reason why a court should exercise whatever discretion it may have to exclude evidence obtained in violation of the regulations.
The judgment of the Court of Appeals is
30
Reversed.
31
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
32
The Court today holds that evidence obtained in patent violation of agency procedures is admissible in a criminal prosecution. In so ruling, the majority determines both that the Internal Revenue Service's failure to comply with its own mandatory regulations implicates no due process interest, and that the exclusionary rule is an inappropriate sanction for such noncompliance. Because I can subscribe to neither proposition, and because the Court's decision must inevitably erode respect for law among those charged with its administration, I respectfully dissent.
33
* In a long line of cases beginning with Bridges v. Wixon, 326 U.S. 135, 152-153, 65 S.Ct. 1443, 1451-1452, 89 L.Ed. 2103 (1945), this Court has held that "one under investigation . . . is legally entitled to insist upon the observance of rules" promulgated by an executive or legislative body for his protection. See United States v. Nixon, 418 U.S. 683, 695-696, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974); Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). Underlying these decisions is a judgment, central to our concept of due process, that government officials no less than private citizens are bound by rules of law.1 Where individual interests are implicated, the Due Process Clause requires that an executive agency adhere to the standards by which it professes its action to be judged. See Vitarelli v. Seaton, supra, 359 U.S. at 547, 79 S.Ct. at 976 (Frankfurter, J., concurring in part and dissenting in part).
34
Despite these well-established precedents and the IRS's conceded failure to abide by mandatory investigative regulations, the Court finds no due process violation on the facts of this case. In reaching its conclusion, the majority relies on the absence of constitutional or statutory underpinnings for the regulations and on respondent's inability to establish prejudice from their circumvention. This approach draws support neither from our prior holdings nor from the principles on which the Due Process Clause is founded.
35
This Court has consistently demanded governmental compliance with regulations designed to safeguard individual interests even when the rules were not mandated by the Constitution or federal statute. In United States ex rel. Accardi v. Shaughnessy, supra, the Court granted a writ of habeas corpus where the Attorney General had disregarded applicable procedures for the Board of Immigration Appeals' suspension of deportation orders. Although the Attorney General had final power to deport the petitioner and had no statutory or constitutional obligation to provide for intermediate action by the Board, this Court held that while suspension procedures were in effect, "the Attorney General denies himself the right to sidestep the Board or dictate its decision." 347 U.S., at 267, 74 S.Ct., at 503. On similar reasoning, the Court in Service v. Dulles, vacated a Foreign Service officer's national security discharge. While acknowledging that the Secretary of State was not obligated to adopt "rigorous substantive and procedural safeguards," the Court nonetheless held that "having done so he could not, so long as the Regulations remain unchanged, proceed without regard to them." 354 U.S., at 388, 77 S.Ct., at 1165. Similarly, in Vitarelli v. Seaton, 1012, we demanded adherence to Department of Interior employee-discharge procedures that were "generous beyond the requirements that bind [the] agency." 359 U.S., at 547, 79 S.Ct., at 976 (Frankfurter, J., concurring in part and dissenting in part). And most recently, in Morton v. Ruiz, we declined to permit the Bureau of Indian Affairs to depart from internal rules for establishing assistance-eligibility requirements although the procedures were "more rigorous than otherwise would be required." 415 U.S., at 235, 94 S.Ct., at 1074. See also United States v. Nixon, supra; Yellin v. United States, supra; Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945).2 Thus, where internal regulations do not merely facilitate internal agency housekeeping, cf. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 538, 90 S.Ct. 1288, 1292, 25 L.Ed.2d 547 (1970),3 but rather afford significant procedural protections, we have insisted on compliance.
36
That the IRS regulations at issue here extend such protections is beyond dispute. As this Court recognized in Berger v. New York, 388 U.S. 41, 63, 87 S.Ct. 1873, 1885, 18 L.Ed.2d 1040 (1967), "[f]ew threats to liberty exist which are greater than that posed by the use of eavesdropping devices." An agency's self-imposed constraints on the use of these devices, no less than limitations mandated by statute or by the Fourth Amendment, operate to preserve a "measure of privacy and a sense of personal security" for individuals potentially subject to surveillance. See United States v. White, 401 U.S. 745, 790, 91 S.Ct. 1122, 1145, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting).
37
Moreover, the history of the IRS authorization requirements clearly establishes that they were intended to protect privacy interests. The regulations were an outgrowth of investigations in 1965 and 1966 by a Subcommittee of the Senate Judiciary Committee concerning surveillance techniques of federal agencies. Testimony at Subcommittee hearings revealed that IRS agents had made extensive unauthorized use of a wide variety of eavesdropping techniques. Hearings on S.Res. 39 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st and 2d Sess., 1206-1208, 1762-1763, 1774-1777, 1828-1830, 1923-1935, 1999-2003 (1965-1966) (hereinafter S.Res. 39 Hearings).4 Among the agency practices that the Subcommittee found offensive was the monitoring of certain conversations between taxpayers and IRS agents wired for sound. See, e. g., id., at 2017, 2078. Of more general concern was the agency's total failure to detect or disapprove violations of its own internal rules. Evidence before the Subcommittee indicated that supervisory personnel had condoned the use of illegal wiretaps, see id., 1517, 1546-1548, while upper level officials had remained ignorant of widespread departures from prescribed policies. See id., 1118, 1124-1128, 2005.
38
In response to that congressional investigation, the IRS convened a special Board of Inquiry to review agency surveillance practices and to recommend new procedures. Both the scope of the new regulations and the IRS Commissioner's representations to the Senate Subcommittee demonstrate that the agency was concerned not only with preventing "violation[s] of a person's constitutional or statutory rights," but also with "carefully control[ling]" certain investigatory techniques which, "although legal, nevertheless tend to be offensive to the public conscience." Id., at 1122 (testimony of Commissioner Cohen). The Commissioner further assured the Subcommittee that detailed regulations adopted by the agency in 1967 would guarantee such control. Id., at 1122-1126; CCH [1967] Stand.Fed. Tax Rep. ¶ 6711, p. 71,756. Those regulations, recodified without substantial modification, are the basis of the instant proceedings. Compare Internal Revenue Service Manual ¶ 652.22 (Sept. 1975) with Internal Revenue Service Manual Supplement, Wiretapping and Electronic Eavesdropping, No. 93G-70 (July 10, 1967).
39
Against this historical backdrop, it is inarguable that these IRS regulations affect substantial individual interests. Indeed the Court does not suggest otherwise. Rather, it places weight on respondent's failure to establish prejudice from agency illegality. Because Caceres cannot demonstrate that he "reasonably relied" on the regulations, ante, at 752, or that the failure to obtain proper authorization had any "discernible effect" on the IRS's decision to monitor his conversations with Agent Yee, ibid., the Court concludes that the agency's action implicates no due process interest. Such an approach is fundamentally misconceived. By assessing respondent's claim in terms of prejudice, the Court disregards not only its prior holdings, but also the principles of governmental regularity on which they rest.
40
To make subjective reliance controlling in due process analysis deflects inquiry from the relevant constitutional issue, the legitimacy of government conduct. If an individual is entitled only to the process that he subjectively believes is due, an agency could disregard its investigative rules with impunity provided it did so with consistency. For no person could "reasonably rely," ibid, on rules that were generally ignored. And to the extent that the majority views reliance as critical in an investigative context, it effectively reduces mandatory regulations to hortatory policies. Presumably the only persons with occasion to discover breaches of investigative rules will be those facing criminal prosecution. Such individuals will rarely, if ever, be able to establish that they planned their conduct with internal agency regulations in view.5
41
Moreover, the Court's focus on subjective reliance is inconsistent with our prior decisions enforcing due process guarantees. In Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), we vacated a deportation order because the Immigration and Naturalization Service had failed to observe regulations requiring that witness statements be made under oath, even though the petitioner's statements were not involved and he had not invoked the regulations at his deportation hearing. So too, in Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963), this Court overturned the defendant's contempt conviction for refusal to testify before Congress where the House Committee on Un-American Activities had ignored rules requiring it to consider formally the injuries to a witness' reputation that might attend public hearings. Yet as the dissent in Yellin pointed out, the defendant had predicated his refusal to testify on First Amendment grounds, not on the public nature of the proceedings, and had in "no way indicated that an executive session would have made any difference in his willingness to answer questions." Id., at 141, 83 S.Ct., at 1846 (WHITE, J., dissenting).
42
Nor has this Court required, as it does today, that procedural irregularity affect the outcome of the governmental action at issue. For example, there was no suggestion in Yellin that, had the Committee formally considered the injury to the defendant's reputation, it would have convened an executive session. Indeed, the Committee Chairman had testified that this was precisely the kind of case where a public hearing was appropriate. 374 U.S., at 117-118, n. 6, 83 S.Ct., at 1833-1834. Nonetheless, the Court, even as it expressed doubt that procedural compliance would have made a difference, insisted that the defendant was entitled to no less. Id., at 121, 83 S.Ct., at 1835.6
43
Similarly, the petitioner in Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), was in no meaningful sense prejudiced by the Department of the Interior's departure from regulations governing employee discharges for national security reasons. After the petitioner filed suit, he received a revised notice of dismissal which complied with all applicable regulations. Despite the petitioner's inability to demonstrate that adherence to agency regulations would have affected the decision to discharge him, this Court ordered reinstatement.
44
Implicit in these decisions,7 and in the Due Process Clause itself, is the premise that regulations bind with equal force whether or not they are outcome determinative. As its very terms make manifest, the Due Process Clause is first and foremost a guarantor of process. It embodies a commitment to procedural regularity independent of result. To focus on the conduct of individual defendants rather than on that of the government necessarily qualifies this commitment. If prejudice becomes critical in measuring due process obligations, individual officials may simply dispense with whatever procedures are unlikely to prove dispositive in a given case. Thus, the majority's analysis invites the very kind of capricious and unfettered decisionmaking that the Due Process Clause in general and these regulations in particular were designed to prevent.
45
Any fair application of our prior holdings mandates a different result. When the Government engages to protect individual interests, it may not constitutionally abrogate that commitment at its own convenience. I would hold the IRS to its surveillance-authorization procedures regardless of whether a litigant can establish prejudice from their circumvention.
II
46
Having found a due process violation, I would require that the fruits of that illegality be suppressed in respondent's criminal prosecution. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Accordingly, under my analysis, it would be unnecessary to consider the scope of our supervisory powers, discussed in Part IV of the Court's opinion. Because, however, the Court addresses that issue, I must register my profound disagreement with both its reasoning and ultimate conclusion.
47
In determining that the exclusionary rule is an unwarranted sanction for the agency misconduct here, the Court attaches great significance to the agents' ostensible "good faith" in construing their own regulations to permit "emergency" surveillance of respondent in January and February 1975. Ante, at 757, 756. The record does not admit of such a charitable characterization. IRS Agent Yee alleged that respondent first attempted to bribe him in March 1974. The IRS recorded a conversation between Caceres and Yee that same month. No further contact with Caceres concerning the bribe occurred until January 1975, and no reasons have been offered for Agent Yee's failure to initiate surveillance during that 10-month hiatus. Nor does the record reflect any justification for the agency's failure to obtain approval for monitoring between the January 27 and January 31 meetings, to schedule meetings so as to permit timely authorization requests, or to process the January 31 authorization request expeditiously. In positing that the agents had a colorable basis for believing that the January 31 and February 6 meetings constituted "emergency situation[s]," see ante, at 756-757, the Court simply ignores the findings below that Agent Yee had absolute control over the scheduling of those conversations, and that any exigency was solely of the Government's own making.8 This is plainly not an instance in which law enforcement officers have failed to grasp the nuances of constitutional doctrine in an area where the Court itself is sharply divided. Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 417, 91 S.Ct. 1999, 2015, 29 L.Ed.2d 619 (1971) (BURGER, C. J., dissenting); Stone v. Powell, 428 U.S. 465, 538-540, 96 S.Ct. 3037, 3072-3073, 49 L.Ed.2d 1067 (1976) (WHITE, J., dissenting). Rather, the record demonstrates a breach of unambiguous and unquestionably applicable procedures.
48
Moreover, even assuming the good faith which the agency has failed to demonstrate, that consideration should not figure in our present analysis. Restricting application of the exclusionary rule to instances of bad faith would invite law enforcement officials to gamble that courts would grant absolution for all but the most egregious conduct. Since judges do not lightly cast aspersions on the motives of government officials, the suppression doctrine would be relegated to those rare circumstances where a litigant can prove insolent or calculated indifference to agency regulations. As we have noted in the context of Fourth Amendment violations, "[i]f subjective good faith alone were the test, . . . the people would be 'secure . . .' only in the discretion of the police." Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964). Just as intent has not been determinative in Fourth Amendment cases, see, e. g. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), it should not be material here.
49
The Court next suggests that suppression is unnecessary in this case because "the Executive itself has provided for internal sanctions in cases of knowing violations of the electronic-surveillance regulations." Ante, at 756 (footnote omitted). Significantly, however, the Court does not assert that the sanctions which exist in theory are effectively employed in practice. While "[s]elf-scrutiny is a lofty ideal," Wolf v. Colorado, 338 U.S. 25, 42, 69 S.Ct. 1359, 1369, 93 L.Ed. 1782 (1949) (Murphy, J., dissenting), nothing in the record before us indicates why IRS disciplinary procedures should enjoy the Court's special confidence. Quite the contrary, the circumstances surrounding the conception and continued operation of IRS authorization requirements illustrate a persistent indifference toward enforcement.9 And abdication by the courts is unlikely to increase the agency's vigilance in disciplining or even discovering violations. To remove a defendant's incentive for exposing evasions or disingenuous constructions of applicable rules will inevitably diminish the agency's interest in self-monitoring.10
50
Finally, the Court declines to order suppression because "a rigid application of an exclusionary rule to every regulatory violation could have a serious deterrent impact on the formulation of additional standards to govern prosecutorial and police procedures." Ante at 755-756. No support is offered for that speculation. In fact, all available evidence is to the contrary. Since 1967, the IRS has retained regulations requiring agents to give Miranda warnings in noncustodial settings despite Court of Appeals decisions suppressing statements taken in violation of those rules. United States v. Sourapas, 515 F.2d 295, 298 (CA9 1975); United States v. Leahey, 434 F.2d 7 (CA1 1970); United States v. Heffner, 420 F.2d 809 (CA4 1969). Significantly the Court points to no instance in which an agency has withdrawn the procedural protections made meaningful by decisions such as Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), United States Ex rel., Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, (1954), Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959).
51
Even if the majority's concern about inhibiting agency self-regulation were more solidly grounded, it could not justify the result in this case. Under today's decision, regulations largely unenforced by the IRS will be unenforceable by the courts.11 I cannot share the Court's apparent conviction that much would be lost if the agency were to withdraw such rules in protest against judicial enforcement. Presumably Congress, which has been repeatedly dissuaded by the IRS from legislating in the area,12 would then step into the breach. In the event of congressional action, this Court could not so cavalierly tolerate unauthorized electronic surveillance. See Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).13 Particularly where, as here, agency regulations were designed to stand in the place of legislative action, we should not hesitate to give them similar force and effect.
52
In my judgment, the Court has utterly failed to demonstrate why the exclusionary rule is inappropriate under the circumstances presented here. Equally disturbing is the majority's refusal even to acknowledge countervailing considerations. Quite apart from specific deterrence, there are significant values served by a rule that excludes evidence secured by lawless enforcement of the law. Denying an agency the fruits of noncompliance gives credibility to the due process and privacy interests implicated by its conduct.14 Also, and perhaps more significantly, exclusion reaffirms the Judiciary's commitment to those values. Preservation of judicial integrity demands that unlawful intrusions on privacy should "find no sanction in the judgments of the courts." Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914). See Elkins v. United States, 364 U.S. 206, 222-223, 80 S.Ct. 1437, 1446-1447, 4 L.Ed.2d 1669 (1960). Today's holding necessarily confers upon the Judiciary a "taint of partnership in official lawlessness." United States v. Calandra, 414 U.S. 338, 357, 94 S.Ct. 613, 624, 38 L.Ed.2d 561 (1974) (Brennan J., dissenting). I decline to participate in that venture.
53
I would affirm the judgment of the court below.
1
545 F.2d 1182 (9 Cir. 1976). The District Court suppressed evidence relating to the third conversation as well on the ground that the approval of a Deputy Assistant Attorney General was not sufficient to comply with the regulations. The Court of Appeals disagreed, concluding that the Attorney General's authority to approve such monitoring could be delegated not only to Assistant Attorneys General, as provided specifically in the regulation, but also to their deputies. That conclusion is not at issue here.
2
See United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (plurality opinion); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462; 18 U.S.C. § 2511(2)(c); infra, at 749-751.
3
The IRS regulations were drafted to conform to the requirements of the Attorney General's October 16, 1972, Memorandum to the Heads of Executive Departments and Agencies. The memorandum mandates Justice Department approval for all consensual monitoring of nontelephone conversations by federal departments and agencies. The only exceptions are if less than 48 hours is available to secure approval or if exigent circumstances preclude requests for advance authorization from the Justice Department; in such cases, monitoring may be instituted under the authorization of the head of the department or agency, or other officials designated by him.
4
Paragraph 652.22 of the IRS Manual (in effect Sept. 1975) provides in pertinent part:
"(1) The monitoring of non-telephone conversations with the consent of one party requires the advance authorization of the Attorney General or any designated Assistant Attorney General. Requests for such authority may be signed by the Director, Internal Security Division, or, in his/her absence, the Acting Director. This authority cannot be redelegated. These same officials may authorize temporary emergency monitoring when exigent circumstances preclude requesting the authorization of the Attorney General in advance. If the Director, Internal Security Division,
cannot be reached the Assistant Commissioner (Inspection) may grant emergency approval. This authority cannot be redelegated.
"(2) Written approval of the Attorney General must be requested 48 hours prior to the use of mechanical, electronic or other devices to overhear, transmit or record a non-telephone private conversation with the permission of one party to the conversation. . . . Any requests being telefaxed into the National Office should be submitted four days prior to the anticipated equipment use. . . . .
"(3) [A request] must be signed and submitted by the Regional Inspector or Chief, Investigations Branch, to the Director, Internal Security Division. Such requests will contain [reason for such proposed use; type of equipment to be used; names of persons involved; proposed location of equipment; duration of proposed use (limited to 30 days from proposed beginning date); and manner or method of installation] . . . .
* * * * *
"(6) When emergency situations occur, the Director or Acting Director, Internal Security Division, or the Assistant Commissioner (Inspection) will be contacted to grant emergency approval to monitor. This emergency approval authority cannot be redelegated. . . . Emergency authorization pursuant to this exception will not be given where the requesting official has in excess of 48 hours to obtain written advance approval from the Attorney General.
"(7) If, at the time the emergency approval request is submitted, it is desired that approval for use of electronic equipment be given for an extended period, this should be indicated on the [appropriate form]. The Director, in addition to reporting his authorization for emergency use to the Attorney General, will also request approval for the Use of Electronic Equipment for the duration of that period specified by the requestor."
5
App. 20, 23-24, 46.
6
Id., at 25-27, 46.
7
Requests for authorization to use electronic equipment to monitor nontelephone conversations are made on a form (No. 5177) that requires disclosure of the dates of previous authorizations. The form dated January 31, 1975, App. 63, is termed an extension, and reports prior authorizations dated March 25, April 24, May 24, June 27, July 23, and August 29, 1974. Under the regulations, a single authorization may cover a period of up to 30 days; the intervals between the dates of prior authorizations in this case are consistent with successive 30-day authorizations, although this has not been established by any evidence called to our attention.
8
Yee had one follow-up conversation with respondent later in March, which was not monitored. From that point until January 1975, he had no further contact with respondent. App. to Pet. for Cert. 16a (opinion and order of the District Court); App. 21-22.
9
Id., at 65-67.
10
In the District Court, respondent moved to suppress evidence relating to these telephone conversations on the grounds that the monitoring had not been properly authorized. The District Court rejected that challenge, concluding that the applicable IRS regulations had been followed with respect to these conversations. App. to Pet. for Cert. 16a-17a. That ruling is not at issue here.
11
545 F.2d, at 1187. See also App. to Pet. for Cert. 20a (opinion of District Court) ("the only 'emergency' was created wholly by the I.R.S.").
12
See also United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155, 44 S.Ct. 54, 56, 68 L.Ed. 221 (Court assumed that "one under investigation with a view to deportation is legally entitled to insist upon the observance of rules promulgated by the Secretary pursuant to law").
13
Mr. Justice WHITE further stated:
"Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer's unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question." 401 U.S., at 753, 91 S.Ct., at 1126.
14
It does not necessarily follow, however, as a matter of either logic or law, that the agency had no duty to obey them. "Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required." Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270. See, e. g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (holding habeas corpus relief proper where Government regulations "with the force and effect of law" governing the procedure to be followed in processing and passing upon an alien's application for suspension of deportation were not followed); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (invalidating Secretary of State's dismissal of an employee where regulations requiring approval of the Deputy Undersecretary and consultation of full record were not satisfied); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (invalidating dismissal of Interior Department employee where regulations governing hearing procedures for national security dismissals were not followed). See also Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (reversing contempt conviction where congressional committee had not complied with its rules requiring it to consider a witness' request to be heard in executive session).
15
In Raley v. Ohio, 360 U.S. 423, 437-438, 79 S.Ct. 1257, 1265-1266, 3 L.Ed.2d 1344, we held that due process precluded the conviction of individuals for refusing to answer questions asked by a state investigating commission which itself had erroneously provided assurances, express or implied, that the defendants had a privilege under state law to refuse to answer. And in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487, the Court held that an individual could not be punished for demonstrating "near" a courthouse where the highest police officials of the city had advised the demonstrators that they could meet where they did without violating the statutory proscription against demonstrations "near" the courthouse. Cf. Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348 (holding invalid Interstate Commerce Commission's retroactive application of new rate); Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 422, 62 S.Ct. 1194, 1202, 86 L.Ed. 1563 (agency regulations on which individuals are "entitled to rely" bind agency and are therefore ripe for judicial review). The underlying rationale of the foregoing cases is plainly inapplicable here.
16
The Act was originally passed in 1946, 60 Stat. 237, and is codified at 5 U.S.C. § 551 et seq. and § 701 et seq..
17
5 U.S.C. § 706.
18
Cf. Board of Curators Univ. of Mo. v. Horowitz, 435 U.S. 78, 92 n. 8, 98 S.Ct. 948, 956, 55 L.Ed.2d 124; Vitarelli v. Seaton, supra, 359 U.S., at 547, 79 S.Ct., at 976 (Frankfurter, J., concurring in part and dissenting in part) ("This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword").
Even as a matter of administrative law, however, it seems clear that agencies are not required, at the risk of invalidation of their action, to follow all of their rules, even those properly classified as "internal." In American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 538, 90 S.Ct. 1288, 1292, 25 L.Ed.2d 547, for example, ICC rules requiring certain information to be included in applications had not been followed. This Court rejected the argument that the agency action was therefore invalid, concluding that the Commission was "entitled to a measure of discretion in administering its own procedural rules in such a manner as it deems necessary to resolve quickly and correctly urgent transportation problems."
19
See App. in Service v. Dulles, App. in O.T. 1956, No. 407, p. 40; Vitarelli v. Seaton, O.T. 1958, No. 101, p. 7. The complaints in both of these cases invoked 5 U.S.C. § 1009 (1964 ed.), the then-applicable APA judicial-review provision.
20
See Linkletter v. Walker, 381 U.S. 618, 633, 636-637, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601; Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081; Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669.
21
Since no statute was violated by the recording of respondent's conversations, this Court's decision in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332, is likewise inapplicable.
22
The Government argues that Fed. Rule Evid. 402 and 18 U.S.C. § 3501 prohibited the Court of Appeals from exercising whatever supervisory power it might otherwise have to suppress evidence of respondent's statements to Yee. Brief for United States 42.
23
See Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 416-428 (1974); McGowan, Rule-Making and the Police, 70 Mich.L.Rev. 659 (1972).
24
See F. Cooper, Administrative Agencies and the Courts 289-290 (1951) ("[T]oo rigid an application of the doctrine prohibiting disregard of procedural rules would encourage the tendency of some agencies to proceed almost without rules. The doctrine should not be pressed so far as to induce agencies to adopt the protective device of promulgating procedural rules so vague in nature as to make it impossible to show a violation of the rules").
25
See IRS Manual ¶ 652.1(3) (in effect Sept. 1975) ("Any employee who knowingly violates or in any way knowingly countenances violation of this policy will be subject to disciplinary action and may be removed from the Service").
1
Although not always expressly predicated on the Due Process Clause, these decisions are explicable in no other terms. The complaints in only two of the cases, Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), and Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), invoked the Administrative Procedure Act, see ante, at 754 n. 19. In neither of these cases was the Act even mentioned in the Court's opinions. Rather, Vitarelli followed Service, see 359 U.S., at 539-540, 79 S.Ct., at 972-973, which in turn had relied on United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). See 354 U.S., at 373, 386-387, 77 S.Ct. 1152. Both Accardi and its predecessor, Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), were habeas corpus cases. And Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963), which involved criminal contempt sanctions, followed Accardi. Thus, it is clear that this line of precedent cannot be dismissed as federal administrative law. Cf. Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 92 n. 8, 98 S.Ct. 948, 956, 55 L.Ed.2d 124 (1978) (dictum). To the contrary, these decisions have been uniformly, and I believe properly, interpreted as resting on due process foundations. See United States v. Sourapas, 515 F.2d 295, 298 (CA9 1975); Konn v. Laird, 460 F.2d 1318 (CA7 1972); Antonuk v. United States, 445 F.2d 592, 595 (CA6 1971); Hollingsworth v. Balcom, 441 F.2d 419, 421 (CA6 1971); United States v. Leahey, 434 F.2d 7, 9 (CA1 1970); United States v. Lloyd, 431 F.2d 160, 171 (CA9 1970); Government of Canal Zone v. Brooks, 427 F.2d 346, 347 (CA5 1970); United States v. Heffner, 420 F.2d 809, 811-812 (CA4 1969); cf. Schatten v. United States, 419 F.2d 187, 191 (CA6 1969). See generally Berger, Do Regulations Really Bind Regulators, 62 Nw.U.L. Rev. 137 (1967).
2
At issue in Bridges, were regulations requiring that witness statements be made under oath and signed in order to be admissible in deportation hearings. As the Court correctly points out, ante, at 749, those rules were designed as safeguards "against essentially unfair procedures." 326 U.S., at 153, 65 S.Ct., at 1452. However, there is no basis in precedent or in the language of Bridges itself for the majority's further intimation that the Due Process Clause "mandated" such protective regulations. Ante, at 749.
3
American Farm Lines v. Black Ball Freight Service, involved rules promulgated to assist an agency in compiling information for internal decisionmaking. As the American Farm Court noted in distinguishing Vitarelli v. Seaton, supra, these rules were not "intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion . . . ." 397 U.S., at 538-539, 90 S.Ct., at 1292.
4
As summarized by Senator Morse: "The record reveals that illegal wiretapping by the Internal Revenue Service is not an occasional action of an overzealous agent, but is the logical and reasonable consequence of a well-defined program . . .." Hearings on S.Res. 928 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 29 (1967).
5
Just as we do not expect defendants in Fourth Amendment cases to demonstrate that but for the warrant requirement they would have acted otherwise, we should not demand that those in respondent's position establish that they predicated their action on the existence of internal regulations. In both contexts, the rationale for mandating government compliance with procedural safeguards is the same: to prevent law enforcement officials from exercising unchecked discretion where substantial privacy interests are involved. And in neither case is a requirement of subjective reliance consistent with that objective.
6
The Yellin Court, 374 U.S., at 121, 83 S.Ct., at 1835, was equally dubious that agency adherence to its regulations would have affected the Attorney General's ultimate decision to deport in United States ex rel. Accardi v. Shaughnessy, 347 U.S., at 267, 74 S.Ct. at 503.
7
In part, these decisions also reflect a prudent reluctance to speculate how another branch of government would have acted under different circumstances. Because the Court has so little apparent difficulty in hypothesizing that compliance would not have mattered in this case, see ante, at 752-753, 757, it has adopted an approach that may well prove problematic in the next. Not all circumstances affecting agency decisions will so readily lend themselves to counterfactual analysis.
8
See 545 F.2d 1182, 1187 (CA9 1976). For example, when Agent Yee proposed a meeting for the following day, Caceres responded: "I'll arrange my schedule to your convenience." App. 15.
9
With respect to IRS officials' enthusiasm for self-discipline before and during the Senate investigation, Senator Long stated that, "generally speaking, they have found wrongdoing only when the subcommittee has pointed directly and explicitly to it." S.Res. 39 Hearings 1118.
Since that investigation, the agency's performance has remained less than exemplary. In 1974, an internal audit of electronic surveillance within the IRS Intelligence Division revealed that 18 agents had engaged in 35 to 40 "instances" of improper monitoring within the previous year, with an "instance" defined to include as many as 15 different phone calls. Oversight Hearings into the Operations of the IRS before a Subcommittee of the House Committee on Government Operations, 94th Cong., 1st Sess., 426-431, 450 (1975) (hereinafter Oversight Hearings). None of these employees were dismissed or demoted. In only one case did violations even actuate suspension. There, an employee who monitored his home telephone for "personal reasons completely unrelated to his official duties" was suspended for five days. Id., at 451; Reply Brief for United States 17, and n. 9. Four other employees received written reprimands. Eight received oral admonitions, three of which were confirmed in writing and none of which became part of the agents' personnel folders. Oversight Hearings 451, 453. The Service took no action in five cases. Id., at 451.
Such nominal sanctions hardly justify the Court's faith in agency self-restraint, particularly given the Government's failure to identify a single instance of internal disciplinary action by the IRS since 1974. See Reply Brief for the United States 16-17.
10
Professor Amsterdam, whom the majority cites for the proposition that regulations governing investigatory conduct "may well provide more valuable protection to the public at large than the deterrence flowing from the occasional exclusion of items of evidence," ante, at 755, and n. 23, submits in the same article that federal review of compliance with such regulations through the exclusionary rule "remains essential." Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 429 (1974). As he maintains, the suppression doctrine provides the "necessary occasions" for review of administrative problems and circumventions, and affords the "only available incentive" for law enforcement officials to make internal rules clear and incorporate them in personnel training. Ibid.
11
See n. 9, supra. Significantly, the Court does not suggest APA litigation as a plausible alternative means of enforcing investigative regulations. Unless a criminal prosecution is initiated, an individual is unlikely to discover that he was subject to unauthorized surveillance. And it strains credulity to suppose that an individual under criminal indictment would assume the expense, not to mention the risks of antagonizing government officials, that would attend APA proceedings. Cf. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U.L.Rev. 785, 787 (1970).
12
See S.Res. 39 Hearings 1122-1124, 1144 (testimony of Commissioner Cohen); Oversight Hearings 401 (testimony of Commissioner Alexander); id., at 448 (testimony of Assistant Commissioner for Compliance Wolfe).
13
In Miller, the Court suppressed evidence obtained after District of Columbia police forcibly entered an apartment without announcing their authority and purpose as required by a federal statute made applicable in the District by a ruling.
14
See Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi. L.Rev. 665, 756 (1970) (by demonstrating that society attaches serious consequences to unlawful infringement of privacy interests "the exclusionary rule invokes and magnifies the moral and educative force of the law. Over the long term this may integrate some fourth amendment ideals into the value system or norms of behavior of law enforcement agencies").
| 01
|
440 U.S. 715
99 S.Ct. 1448
59 L.Ed.2d 711
UNITED STATES, Petitioner, 77-1359v.KIMBELL FOODS, INC., et al. UNITED STATES, Petitioner, 77-1644 v. Zac A. CRITTENDEN, Jr. d b a Crittenden Tractor Company.
Nos. 77-1359, 77-1644.
Argued Jan. 8, 1979.
Decided April 2, 1979.
Syllabus
These cases present the question whether contractual liens arising from certain federal loan programs take precedence over private liens, absent a federal statute that sets priorities. Resolution of this question requires determination of whether federal or state law governs the conflicting claims and, if federal law applies, whether a uniform priority rule should be fashioned or state commercial law should be incorporated as the federal rule of decision. In No. 77-1359, the United States' contractual lien secures a loan guaranteed by the Small Business Administration (SBA) under the Small Business Act, which generally does not specify priority rules to govern SBA security interests. The private lien of respondent Kimbell Foods, Inc. (Kimbell), arose from security agreements that were executed before the federal guarantee and secured advances that Kimbell made after the federal guarantee. Both the federal and private security interests, which covered the same collateral, were perfected pursuant to Texas' Uniform Commercial Code. The District Court found that the Government's lien was superior to Kimbell's. In so ruling, it applied the first-in-time and choateness doctrines, rules originally developed to afford federal statutory tax liens special priority over state and private liens where the governing statute does not specify priorities. The Court of Appeals reversed the District Court's judgment. While agreeing that federal law governed the controversy and that the "first in time, first in right" priority principle controlled the competing claims, the court refused to extend the choateness rule to situations in which the Government was a voluntary lender. Instead, the Court of Appeals fashioned a federal common-law rule whereby the first lien to meet Uniform Commercial Code perfection requirements achieved priority, and held that under this rule Kimbell's lien was superior. Although the Court of Appeals did not adopt Texas law, it did determine that Texas law would also afford priority to Kimbell's security interests. In No. 77-1644, a borrower obtained several loans from the Farmers Home Administration (FHA) under the Consolidated Farmers Home Administration Act of 1961 (now redesignated the Consolidated Farm and Rural Development Act), which does not establish rules of priority. To secure the loans, the FHA obtained a security interest in the borrower's crops and farm equipment, and perfected its interest by filing a standard financing statement with Georgia officials. Subsequently, respondent repaired the borrower's tractor on numerous occasions. When the borrower failed to pay the repair bills, respondent retained the tractor and acquired a lien therein under Georgia law. After the borrower had filed for bankruptcy and had been discharged from his debts, the United States instituted this action to obtain possession of the tractor. The District Court granted summary judgment for respondent, holding that the FHA had not properly perfected its security interest because the financing statement inadequately described the collateral; and that even if the description were sufficient, both federal and state law accorded priority to respondent's lien. Affirming in part and reversing in part, the Court of Appeals fashioned a federal rule, based on the Model Uniform Commercial Code, to determine the validity of the financing statement. It found the description of the collateral adequate to perfect the FHA's security interest. As to the priority question, the Court of Appeals rejected state law as well as the first-in-time and choateness doctrines. In their place the court devised a special "federal commercial law rule" giving priority to repairman's liens when the repairman continuously possesses the property from the time his lien arises. The court concluded that under this rule respondent's lien for only the final repair bill took precedence over the FHA's security interest. Held:
1. The priority of liens stemming from federal lending programs must be determined with reference to federal law. Since both the SBA and the FHA derive their authority to effectuate loan transactions from specific Acts of Congress passed in the exercise of a "constitutional function or power," Clearfield Trust Co. v. United States, 318 U.S. 363, 366, 63 S.Ct. 573, 574, 87 L.Ed. 838, their rights, as well, should derive from a federal source. That the statutes authorizing these federal lending programs do not specify the appropriate rule of decision in no way limits the reach of federal law. Pp. 726-727.
2. Because a national rule is unnecessary to protect the federal interests underlying the SBA and FHA loan programs, the relative priority of private liens and consensual liens arising from the programs is to be determined under nondiscriminatory state laws, absent a congressional directive to the contrary. Pp. 727-740.
(a) Incorporating state law to determine the rights of the United States as against private creditors will in no way hinder administration of the SBA and FHA loan programs. The agencies' own operating practices, which recognize that the Government's security interests are controlled by the commercial law of each State, belie the assertion that a uniform rule of priority is needed to avoid the administrative burdens created by disparate state commercial rules. Pp. 729-733.
(b) Deference to customary commercial practices will not conflict with the objectives of the lending programs. The SBA and FHA loan programs are a form of social welfare legislation, primarily designed to assist farmers and businesses that cannot obtain funds from private lenders on reasonable terms. If Congress had intended the private commercial sector, rather than taxpayers in general, to bear the risks of default entailed by these public welfare programs, it would have established a priority scheme displacing state law. Since the Government is in substantially the same position as private lenders when it extends funds under the programs, the special status it seeks is unnecessary to safeguard the public fisc. Pp. 733-738.
(c) Rejecting well-established commercial rules which have proven workable over time could undermine the stability on which the commercial community depends in making reliable evaluations of risk. Absent concrete reasons for altering settled commercial practices, the prudent course is to adopt the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation. Pp. 739-740.
3. The judgment in No. 77-1359 is affirmed since the Court of Appeals found that Texas law gave preference to Kimbell's lien. The judgment in No. 77-1644 is vacated, and the case is remanded for determination of whether the FHA's financing statement is sufficient under Georgia law, and whether Georgia treats repairmen's liens as superior to previously perfected consensual liens. P. 740.
No. 77-1359, 557 F.2d 491, affirmed; No. 77-1644, 563 F.2d 678, vacated and remanded.
Stephen R. Barnett, Dept. of Justice, Washington, D. C., for petitioner.
Vernon O. Teofan, Dallas, Tex., for Kimbell Foods, Inc.
Howell Hollis, III, Atlanta, Ga., for Zac A. Crittenden, Jr.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
We granted certiorari in these cases to determine whether contractual liens arising from certain federal loan programs take precedence over private liens, in the absence of a federal statute setting priorities.1 To resolve this question, we must decide first whether federal or state law governs the controversies; and second, if federal law applies, whether this Court should fashion a uniform priority rule or incorporate state commercial law. We conclude that the source of law is federal, but that a national rule is unnecessary to protect the federal interests underlying the loan programs. Accordingly, we adopt state law as the appropriate federal rule for establishing the relative priority of these competing federal and private liens.
2
* A.
3
No. 77-1359 involves two contractual security interests in the personal property of O. K. Super Markets, Inc. Both interests were perfected pursuant to Texas' Uniform Commercial Code (UCC).2 The United States' lien secures a loan guaranteed by the Small Business Administration (SBA). The private lien, which arises from security agreements that preceded the federal guarantee, secures advances respondent made after the federal guarantee.
4
In 1968, O. K. Super Markets borrowed $27,000 from Kimbell Foods, Inc. (Kimbell), a grocery wholesaler. Two security agreements identified the supermarket's equipment and merchandise as collateral. The agreements also contained a standard "dragnet" clause providing that this collateral would secure future advances from Kimbell to O. K. Super Markets. Kimbell properly perfected its security interests by filing financing statements with the Texas Secretary of State according to Texas law.
5
In February 1969, O. K. Super Markets obtained a $300,000 loan from Republic National Bank of Dallas (Republic). The bank accepted as security the same property specified in Kimbell's 1968 agreements, and filed a financing statement with the Texas Secretary of State to perfect its security interest. The SBA guaranteed 90% of this loan under the Small Business Act, which authorizes such assistance3 but, with one exception, does not specify priority rules to govern the SBA's security interests.4
6
O. K. Super Markets used the Republic loan proceeds to satisfy the remainder of the 1968 obligation and to discharge an indebtedness for inventory purchased from Kimbell on open account. Kimbell continued credit sales to O. K. Super Markets until the balance due reached $18,258.57 on January 15, 1971. Thereupon, Kimbell initiated state proceedings against O. K. Super Markets to recover this inventory debt.
7
Shortly before Kimbell filed suit, O. K. Super Markets had defaulted on the SBA-guaranteed loan. Republic assigned its security interest to the SBA in late December 1970, and recorded the assignment with Texas authorities on January 21, 1971. The United States then honored its guarantee and paid Republic $252,331.93 (90% of the outstanding indebtedness) on February 3, 1971. That same day, O. K. Super Markets, with the approval of its creditors, sold its equipment and inventory and placed the proceeds in escrow pending resolution of the competing claims to the funds. Approximately one year later, the state court entered judgment against O. K. Super Markets, and awarded Kimbell $24,445.37, representing the inventory debt, plus interest and attorney's fees.
8
Kimbell thereafter brought the instant action to foreclose on its lien, claiming that its security interest in the escrow fund was superior to the SBA's.5 The District Court held for the Government. On determining that federal law controlled the controversy, the court applied principles developed by this Court to afford federal statutory tax liens special priority over state and private liens where the governing statute does not specify priorities. Kimbell Foods, Inc. v. Republic Nat. Bank of Dallas, 401 F.Supp. 316, 321-322 (N.D. Tex.1975). See, e. g., United States v. Security Trust & Sav. Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53 (1950); United States v. Pioneer American Ins. Co., 374 U.S. 84, 83 S.Ct. 1651, 10 L.Ed.2d 770 (1963).6 Under these rules, the lien "first in time" is "first in right."7 However, to be considered first in time, the nonfederal lien must be "choate," that is, sufficiently specific, when the federal lien arises.8 A state-created lien is not choate until the "identity of the lienor, the property subject to the lien, and the amount of the lien are established." United States v. New Britain, 347 U.S. 81, 84, 74 S.Ct. 367, 369, 98 L.Ed. 520 (1954); see United States v. Vermont, 377 U.S. 351, 358, 84 S.Ct. 1267, 1271, 12 L.Ed.2d 370 (1964). Failure to meet any one of these conditions forecloses priority over the federal lien, even if under state law the nonfederal lien was enforceable for all purposes when the federal lien arose.
9
Because Kimbell did not reduce its lien to judgment until February 1972, and the federal lien had been created either in 1969, when Republic filed its financing statement, or in 1971, when Republic recorded its assignment, the District Court concluded that respondent's lien was inchoate when the federal lien arose. 401 F.Supp., at 324-325. Alternatively, the court held that even under state law, the SBA lien was superior to Kimbell's claim because the future advance clauses in the 1968 agreements were not intended to secure the debts arising from O. K. Super Market's subsequent inventory purchases. Id., at 325-326.
10
The Court of Appeals reversed. Kimbell Foods, Inc. v. Republic Nat. Bank of Dallas, 557 F.2d 491 (CA5 1977). It agreed that federal law governs the rights of the United States under its SBA loan program, id., at 498 n. 9, 503 n. 16, and that the "first in time, first in right" priority principle should control the competing claims. Id., at 502-503. However, the court refused to extend the choateness rule to situations in which the Federal Government was not an involuntary creditor of tax delinquents, but rather a voluntary commercial lender. Id., at 498, 500-502. Instead, it fashioned a new federal rule for determining which lien was first in time, and concluded that "in the context of competing state security interests arising under the U. C. C.," the first to meet UCC perfection requirements achieved priority. Id., at 503.9
11
The Court of Appeals then considered which lien qualified as first perfected. Disagreeing with the District Court, the court determined that, under Texas law, the 1968 security agreements covered Kimbell's future advances, and that the liens securing those advances dated from the filing of the security agreements before the federal lien arose. Id., at 494-498, 503. But the Court of Appeals did not adopt Texas law. Rather, it proceeded to decide whether the future advances should receive the same treatment under federal common law. After surveying three possible approaches,10 the court held that Kimbell's future advances dated back to the 1968 agreements, and therefore took precedence over Republic's 1969 loan. Id., at 503-505.
B
12
At issue in No. 77-1644 is whether a federal contractual security interest in a tractor is superior to a subsequent repairman's lien in the same property. From 1970 to 1972, Ralph Bridges obtained several loans from the Farmers Home Administration (FHA), under the Consolidated Farmers Home Administration Act of 1961.11 Like the Small Business Act, this statute does not establish rules of priority. To secure the FHA loans, the agency obtained a security interest in Bridges' crops and farm equipment, which it perfected by filing a standard FHA financing statement with Georgia officials on February 2, 1972. Bridges subsequently took his tractor to respondent Crittenden for repairs on numerous occasions, accumulating unpaid repair bills of over $1,600. On December 21, 1973, Bridges again had respondent repair the tractor, at a cost of $543.81. When Bridges could not pay the balance of $2,151.28, respondent retained the tractor and acquired a lien therein under Georgia law. Ga.Code § 67-2003 (1978).
13
On May 1, 1975, after Bridges had filed for bankruptcy and had been discharged from his debts,12 the United States instituted this action against Crittenden to obtain possession of the tractor.13 The District Court rejected the Government's claim that the FHA's security interest was superior to respondent's, and granted summary judgment for respondent on alternative grounds. First, it held that the agency had not properly perfected its security interest because the financing statement inadequately described the collateral. Civ. Action No. 75-37-COL (MD Ga. Sept. 25, 1975). Second, it found that even if the description were sufficient, both federal and state law accorded priority to respondent's lien. Ibid.
14
The Court of Appeals affirmed in part and reversed in part. It first ruled that "the rights and liabilities of the parties to a suit arising from FHA loan transactions must, under the rationale of the Clearfield Trust doctrine, be determined with reference to federal law." 563 F.2d 678, 680-681 (CA5 1977) (footnotes omitted). See Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). In fashioning a federal rule for assessing the sufficiency of the FHA's financing statement, the court elected to follow the Model UCC rather than to incorporate Georgia law. 563 F.2d at 681-682. And, it determined that the description of the collateral was adequate under the Model UCC to perfect the FHA's security interest. Id., at 682-683.
15
The Court of Appeals then addressed the priority question and concluded that neither state law nor the first-in-time, first-in-right and choateness doctrines were appropriate to resolve the conflicting claims. Id., at 683-689. In their place, the court devised a special "federal commercial law rule," using the Model UCC and the Tax Lien Act of 1966 as guides. Id., at 679, 688-690.14 This rule would give priority to repairman's liens over the Government's previously perfected consensual security interests when the repairman continuously possesses the property from the time his lien arises. Id., at 690-691.15 Applying its rule, the Court of Appeals concluded that Crittenden's lien for only the final $543.81 repair bill took precedence over the FHA's security interest. Id., at 692.16
II
16
This Court has consistently held that federal law governs questions involving the rights of the United States arising under nationwide federal programs. As the Court explained in Clearfield Trust Co. v. United States, supra, at 366-367, 63 S.Ct., at 575:
17
"When the United States disburses its funds or pays its debts, it is exercising a constitutional function or power. . . . The authority [to do so] had its origin in the Constitution and the statutes of the United States and was in no way dependent on the laws [of any State]. The duties imposed upon the United States and the rights acquired by it . . . find their roots in the same federal sources. In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards." (Citations and footnote omitted.)
18
Guided by these principles, we think it clear that the priority of liens stemming from federal lending programs must be determined with reference to federal law. The SBA and FHA unquestionably perform federal functions within the meaning of Clearfield. Since the agencies derive their authority to effectuate loan transactions from specific Acts of Congress passed in the exercise of a "constitutional function or power," Clearfield Trust Co. v. United States, supra, at 366, 63 S.Ct., at 574, their rights, as well, should derive from a federal source.17 When Government activities "aris[e] from and bea[r] heavily upon a federal . . . program," the Constitution and Acts of Congress " 'require' otherwise than that state law govern of its own force." United States v. Little Lake Misere Land Co., 412 U.S. 580, 592, 593, 93 S.Ct. 2389, 2397, 37 L.Ed.2d 187 (1973).18 In such contexts, federal interests are sufficiently implicated to warrant the protection of federal law.19
19
That the statutes authorizing these federal lending programs do not specify the appropriate rule of decision in no way limits the reach of federal law. It is precisely when Congress has not spoken " 'in an area comprising issues substantially related to an established program of government operation,' " id., at 593, 93 S.Ct., at 2397, quoting Mishkin 800, that Clearfield directs federal courts to fill the interstices of federal legislation "according to their own standards." Clearfield Trust Co. v. United States, 318 U.S., at 367, 63 S.Ct., at 575.20
20
Federal law therefore controls the Government's priority rights. The more difficult task, to which we turn, is giving content to this federal rule.
III
21
Controversies directly affecting the operations of federal programs, although governed by federal law, do not inevitably require resort to uniform federal rules. See Clearfield Trust Co. v. United States, supra, at 367, 63 S.Ct., at 575; United States v. Little Lake Misere Land Co., supra, 412 U.S., at 594-595, 93 S.Ct., at 2397-2398. Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy "dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law." United States v. Standard Oil Co., 332 U.S. 301, 310, 67 S.Ct. 1604, 1609, 91 L.Ed. 2067 (1947).21
22
Undoubtedly, federal programs that "by their nature are and must be uniform in character throughout the Nation" necessitate formulation of controlling federal rules. United States v. Yazell, 382 U.S. 341, 354, 86 S.Ct. 500, 507, 15 L.Ed.2d 404 (1966); see Clearfield Trust Co. v. United States, supra, 318 U.S., at 367, 63 S.Ct., at 575; United States v. Standard Oil Co., supra, 332 U.S., at 311, 67 S.Ct., at 1609; Illinois v. Milwaukee, 406 U.S. 91, 105 n. 6, 92 S.Ct. 1385, 1393, 31 L.Ed.2d 712 (1972). Conversely, when there is little need for a nationally uniform body of law, state law may be incorporated as the federal rule of decision.22 Apart from considerations of uniformity, we must also determine whether application of state law would frustrate specific objectives of the federal programs. If so, we must fashion special rules solicitous of those federal interests.23 Finally, our choice-oflaw inquiry must consider the extent to which application of a federal rule would disrupt commercial relationships predicated on state law.24
23
The Government argues that effective administration of its lending programs requires uniform federal rules of priority. It contends further that resort to any rules other than first in time, first in right and choateness would conflict with protectionist fiscal policies underlying the programs. We are unpersuaded that, in the circumstances presented here, nationwide standards favoring claims of the United States are necessary to ease program administration or to safeguard the Federal Treasury from defaulting debtors. Because the state commercial codes "furnish convenient solutions in no way inconsistent with adequate protection of the federal interest[s]," United States v. Standard Oil Co., supra, 332 U.S., at 309, 67 S.Ct., at 1609, we decline to override intricate state laws of general applicability on which private creditors base their daily commercial transactions.
A.
24
Incorporating state law to determine the rights of the United States as against private creditors would in no way hinder administration of the SBA and FHA loan programs. In United States v. Yazell, supra, this Court rejected the argument, similar to the Government's here, that a need for uniformity precluded application of state coverture rules to an SBA loan contract. Because SBA operations were "specifically and in great detail adapted to state law," 382 U.S., at 357, 86 S.Ct., at 509, the federal interest in supplanting "important and carefully evolved state arrangements designed to serve multiple purposes" was minimal. Id., at 353, 86 S.Ct., at 507. Our conclusion that compliance with state law would produce no hardship on the agency was also based on the SBA's practice of "individually negotiat[ing] in painfully particularized detail" each loan transaction. Id., at 345-346, 86 S.Ct., at 503. These observations apply with equal force here and compel us again to reject generalized pleas for uniformity as substitutes for concrete evidence that adopting state law would adversely affect administration of the federal programs.
25
Although the SBA Financial Assistance Manual on which this Court relied in Yazell is no longer "replete with admonitions to follow state law carefully," id., at 357 n. 35, 86 S.Ct., at 509; SBA employees are still instructed to, and indeed do, follow state law.25 In fact, a fair reading of the SBA Financial Assistance Manual, SOP 50-10 (SBA Manual), indicates that the agency assumes its security interests are controlled to a large extent by the commercial law of each State.26 Similarly, FHA regulations expressly incorporate state law. They mandate compliance with state procedures for perfecting and maintaining valid security interests, and highlight those rules that differ from State to State. E. g., 7 CFR §§ 1921.104(c)(1), 1921.105, 1921.106, 1921.107, 1921.108, 1921.111, 1930.5, 1930.8, 1930.9, 1930.14, 1930.17, 1930.27 (1978).27 To ensure that employees are aware of new developments, the FHA also issues "State supplements" to "reflect any State statutory changes in its version of the UCC." § 1921.111(c); see, e. g., §§ 1802.80, 1904.108(d), 1930.46(d)(3). Contrary to the Government's claim that the FHA complies only with state procedural rules, Reply Brief for United States in No. 77-1644, p. 7, the agency's reliance on state law extends to substantive requirements as well. Indeed, applicable regulations suggest that state rules determine the priority of FHA liens when federal statutes or agency regulations are not controlling. 7 CFR §§ 1872.2(c), 1921.111(b), 1930.43, 1930.44, 1930.46(d)(1), (3) (1978); see also § 1955.15(d).
26
Thus, the agencies' own operating practices belie their assertion that a federal rule of priority is needed to avoid the administrative burdens created by disparate state commercial rules.28 The programs already conform to each State's commercial standards. By using local lending offices and employees who are familiar with the law of their respective localities,29 the agencies function effectively without uniform procedures and legal rules.
27
Nevertheless, the Government maintains that requiring the agencies to assess security arrangements under local law would dictate close scrutiny of each transaction and thereby impede expeditious processing of loans. We disagree. Choosing responsible debtors necessarily requires individualized selection procedures, which the agencies have already implemented in considerable detail. Each applicant's financial condition is evaluated under rigorous standards in a lengthy process.30 Agency employees negotiate personally with borrowers, investigate property offered as collateral for encumbrances, and obtain local legal advice on the adequacy of proposed security arrangements.31 In addition, they adapt the terms of every loan to the parties' needs and capabilities.32 Because each application currently receives individual scrutiny, the agencies can readily adjust loan transactions to reflect state priority rules, just as they consider other factual and legal matters before disbursing Government funds. As we noted inUnited States v. Yazell, 382 U.S., at 348, 86 S.Ct., at 504, these lending programs are distinguishable from "nationwide act[s] of the Federal Government, emanating in a single form from a single source." (Footnote omitted.) Since there is no indication that variant state priority schemes would burden current methods of loan processing, we conclude that considerations of administrative convenience do not warrant adoption of a uniform federal law.
B
28
The Government argues that applying state law to these lending programs would undermine its ability to recover funds disbursed and therefore would conflict with program objectives. In the Government's view, it is difficult "to identify a material distinction between a dollar received from the collection of taxes and a dollar returned to the Treasury on repayment of a federal loan." Brief for United States in No. 77-1359, p. 22. Therefore, the agencies conclude, just as "the purpose of the federal tax lien statute to insure prompt and certain collection of taxes"33 justified our imposition of the first-in-time and choateness doctrines in the tax lien context, the federal interest in recovering on loans compels similar legal protection of the agencies' consensual liens. However, we believe significant differences between federal tax liens and consensual liens counsel against unreflective extension of rules that immunize the United States from the commercial law governing all other voluntary secured creditors. These differences persuade us that deference to customary commercial practices would not frustrate the objectives of the lending programs.
29
That collection of taxes is vital to the functioning, indeed existence, of government cannot be denied. McCulloch v. Maryland, 4 Wheat. 316, 425, 428, 431, 4 L.Ed. 579 (1819); Springer v. United States, 102 U.S. 586, 594, 26 L.Ed. 253 (1881). Congress recognized as much over 100 years ago when it authorized creation of federal tax liens. Act of July 13, 1866, ch. 184, § 9, 14 Stat. 107, recodified as amended in 26 U.S.C. §§ 6321-6323. The importance of securing adequate revenues to discharge national obligations justifies the extraordinary priority accorded federal tax liens through the choateness and first-in-time doctrines. By contrast, when the United States operates as a moneylending institution under carefully circumscribed programs, its interest in recouping the limited sums advanced is of a different order. Thus, there is less need here than in the tax lien area to invoke protective measures against defaulting debtors in a manner disruptive of existing credit markets.
30
To equate tax liens with these consensual liens also misperceives the principal congressional concerns underlying the respective statutes. The overriding purpose of the tax lien statute obviously is to ensure prompt revenue collection. The same cannot be said of the SBA and FHA lending programs.34 They are a form of social welfare legislation, primarily designed to assist farmers and businesses that cannot obtain funds from private lenders on reasonable terms.35 We believe that had Congress intended the private commercial sector, rather than taxpayers in general, to bear the risks of default entailed by these public welfare programs, it would have established a priority scheme displacing state law. Far from doing so, both Congress and the agencies have expressly recognized the priority of certain private liens over the agencies' security interests,36 thereby indicating that the extraordinary safeguards applied in the tax lien area are unnecessary to maintain the lending programs.
31
The Government's ability to safeguard its interests in commercial dealings further reveals that the rules developed in the tax lien area are unnecessary here, and that state priority rules would not conflict with federal lending objectives.37 The United States is an involuntary creditor of delinquent taxpayers, unable to control the factors that make tax collection likely. In contrast, when the United States acts as a lender or guarantor, it does so voluntarily, with detailed knowledge of the borrower's financial status. The agencies evaluate the risks associated with each loan, examine the interests of other creditors, choose the security believed necessary to assure repayment, and set the terms of every agreement.38 By carefully selecting loan recipients and tailoring each transaction with state law in mind, the agencies are fully capable of establishing terms that will secure repayment.39
32
The Government nonetheless argues that its opportunity to evaluate the credit worthiness of loan applicants provides minimal safety. Because the SBA and FHA make loans only when private lenders will not, the United States believes that its security interests demand greater protection than ordinary commercial arrangements. We find this argument unconvincing. The lending agencies do not indiscriminately distribute public funds and hope that reimbursement will follow. SBA loans must be "of such sound value or so secured as reasonably to assure repayment." 15 U.S.C. § 636(a)(7); see 13 CFR § 120.2(c)(1) (1978). The FHA operates under a similar restriction. 7 CFR § 1833.35 (1978). Both agencies have promulgated exhaustive instructions to ensure that loan recipients are financially reliable and to prevent improvident loans.40 The Government therefore is in substantially the same position as private lenders, and the special status it seeks is unnecessary to safeguard the public fisc. Moreover, Congress' admonitions to extend loans judiciously supports the view that it did not intend to confer special privileges on agencies that enter the commercial field. Accordingly, we agree with the Court of Appeals in No. 77-1359 that "[a]s a quasi-commercial lender, [the Government] does not require . . . the special priority which it compels as sovereign" in its tax-collecting capacity. 557 F.2d, at 500.
33
The Federal Tax Lien Act of 1966, 80 Stat. 1125, as amended, 26 U.S.C. § 6323, provides further evidence that treating the United States like any other lender would not undermine federal interests. These amendments modified the Federal Government's preferred position under the choateness and first-in-time doctrines, and recognized the priority of many state claims over federal tax liens.41 In enacting this legislation, Congress sought to "improv[e] the status of private secured creditors" and prevent impairment of commercial financing transactions by "moderniz[ing] . . . the relationship of Federal tax liens to the interests of other creditors." S.Rep.No. 1708, 89th Cong., 2d Sess., 1-2 (1966), U.S.Code Cong. & Admin.News 1966, p. 3722; see also H.R.Rep.No. 1884, 89th Cong., 2d Sess., 35 (1966). This rationale has even greater force when the Government acts as a moneylender. We do not suggest that Congress' actions in the tax lien area control our choice of law in the commercial lien context. But in fashioning federal principles to govern areas left open by Congress, our function is to effectuate congressional policy. E. g., RFC v. Beaver County, 328 U.S. 204, 209-210, 66 S.Ct. 992, 995-996, 90 L.Ed. 1172 (1946). To ignore Congress' disapproval of unrestricted federal priority in an area as important to the Nation's stability as taxation would be inconsistent with this function. Thus, without a showing that application of state laws would impair federal operations, we decline to extend to new contexts extraordinary safeguards largely rejected by Congress.
C
34
In structuring financial transactions, businessmen depend on state commercial law to provide the stability essential for reliable evaluation of the risks involved. Cf. National Bank v. Whitney, 103 U.S. 99, 102, 26 L.Ed. 443 (1881). However, subjecting federal contractual liens to the doctrines developed in the tax lien area could undermine that stability. Creditors who justifiably rely on state law to obtain superior liens would have their expectations thwarted whenever a federal contractual security interest suddenly appeared and took precedence.42
35
Because the ultimate consequences of altering settled commercial practices are so difficult to foresee,43 we hesitate to create new uncertainties, in the absence of careful legislative deliberation. Of course, formulating special rules to govern the priority of the federal consensual liens in issue here would be justified if necessary to vindicate important national interests. But neither the Government nor the Court of Appeals advanced any concrete reasons for rejecting well-established commercial rules which have proven workable over time. Thus, the prudent course is to adopt the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation.44
IV
36
Accordingly, we hold that, absent a congressional directive, the relative priority of private liens and consensual liens arising from these Government lending programs is to be determined under nondiscriminatory state laws. In No. 77-1359, the Court of Appeals found that Texas law gave preference to respondent Kimbell's lien. We therefore affirm the judgment in that case. Although the issue was contested, the Court of Appeals in No. 77-1644 did not decide whether and to what extent Georgia treats repairman's liens as superior to previously perfected consensual liens. Nor did the court assess the sufficiency of the FHA's financing statement under Georgia law. Because "[t]he federal judges who deal regularly with questions of state law in their respective districts and circuits are in a better position than we to determine how local courts would dispose of [such] issues," Butner v. United States, 440 U.S. 48, 58, 99 S.Ct. 914, 919, 59 L.Ed.2d 136 (footnote omitted), we vacate the judgment in No. 77-1644 and remand for resolution of these issues.
37
So ordered.
1
436 U.S. 903, 98 S.Ct. 2230, 56 L.Ed.2d 400 (1978); 439 U.S. 817, 99 S.Ct. 77, 58 L.Ed.2d 108 (1978).
2
Tex.Bus. & Com.Code Ann. § 9.101 et seq. (1968).
3
Section 7(a) of the Small Business Act, 72 Stat. 387, as amended, 15 U.S.C. § 636(a)(1), permits extension of financial assistance to small businesses when funds are "not otherwise available on reasonable terms from non-Federal sources." The SBA prefers to guarantee private loans rather than to disburse funds directly. § 636(a)(2); 13 CFR §§ 120.2(b)(1), 122.15(c) (1978).
4
See n. 36, infra.
5
Jurisdiction was premised on 28 U.S.C. § 2410.
6
The tax liens were authorized by 26 U.S.C. § 3670 (1952 ed.), currently codified at 26 U.S.C. § 6321. This statute established the time when the tax lien arose, 26 U.S.C. § 3671 (1952 ed.), currently codified at 26 U.S.C. § 6322, and required the filing of notice for the lien to be valid against specified creditors. 26 U.S.C. § 3672 (1952 ed.), currently codified, as amended, at 26 U.S.C. § 6323(a). But until 1966, the statute did not specify priority rules to resolve conflicts between federal tax liens and rival liens. The Federal Tax Lien Act of 1966, 80 Stat. 1125, as amended, 26 U.S.C. §§ 6323(b), (c), (d), (e), set specific priorities to displace the doctrines that this Court had created. See infra, at 738.
7
This well-accepted common-law principle for resolving lien priority disputes, see Rankin v. Scott, 12 Wheat. 177, 179, 6 L.Ed. 592 (1827); United States v. New Britain, 347 U.S. 81, 85-86, 74 S.Ct. 367, 370-371, 98 L.Ed. 520 (1954), also underlies the Uniform Commercial Code's priority structure. See § 9-312(5), 3 U.L.A. 85 Uniform Commercial Code (1979 pamphlet) (hereinafter Model UCC); J. White & R. Summers, Uniform Commercial Code 905 (1972).
8
See, e. g., United States v. Security Trust & Sav. Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53 (1950); United States v. New Britain, supra, 347 U.S., at 86, 74 S.Ct., at 370; United States v. Acri, 348 U.S. 211, 213, 75 S.Ct. 239, 241, 99 L.Ed. 264 (1955); United States v. R. F. Ball Construction Co., 355 U.S. 587 (1958) (per curiam ); united stateS v. Pioneer American Ins. Co., 374 U.S. 84, 83 S.Ct. 1651, 10 L.Ed.2d 770 (1963); United States v. Vermont, 377 U.S. 351, 355, 84 S.Ct. 1267, 1269, 12 L.Ed.2d 370 (1964); United States v. Equitable Life Assurance Soc., 384 U.S. 323, 327-328, 86 S.Ct. 1561, 1563-1565, 16 L.Ed.2d 593 (1966).
This Court originally formulated the choate lien test to govern conflicts arising under the federal insolvency statute, Rev.Stat. § 3466, 31 U.S.C. § 191, which awards the United States priority over other creditors in collecting debts from insolvents. In theory, the statute does not defeat liens that are choate at the time of insolvency. But in practice, it has proved difficult for nonfederal lienors to satisfy the strictures of the choateness test. See New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754 (1933); United States v. Texas, 314 U.S. 480, 62 S.Ct. 350, 86 L.Ed. 356 (1941); United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 65 S.Ct. 304, 89 L.Ed. 294 (1945); United States v. Gilbert Associates, Inc., 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071 (1953).
The Court later applied the choateness doctrine outside the insolvency context together with the first-in-time requirement to give federal tax liens special priority. See United States v. Security Trust & Sav. Bank, supra, 340 U.S., at 51, 71 S.Ct., at 113. For a discussion of the history of the choate lien test, see Kennedy, The Relative Priority of the Federal Government: The Pernicious Career of the Inchoate and General Lien, 63 Yale L.J. 905 (1954) (hereinafter Kennedy, Relative Priority).
9
In so holding, the Court of Appeals refused to formulate a federal doctrine of general applicability, "leav[ing] for another day" questions involving the priority of other nonfederal liens, such as state tax and mechanic's liens. 557 F.2d, at 503 n. 15.
10
One approach afforded priority to liens intervening between execution of a security agreement covering future advances and extension of those advances. Another gave priority only to future advances made before the advancing creditor received actual notice of an intervening lien, while a third rule afforded priority regardless of actual notice. The court rejected the first option and found that Kimbell would prevail under either of the other two since it did not have notice of the SBA guarantee. Id., at 503-504.
11
The statute, now redesignated the Consolidated Farm and Rural Development Act, see 86 Stat. 657, authorizes federal financial assistance for farmers who are "unable to obtain sufficient credit elsewhere to finance their actual needs at reasonable rates and terms." 75 Stat. 307, as amended, 7 U.S.C. § 1922 (1976 ed., Supp. III).
12
Bridges' bankruptcy did not affect the relative priority of the Government and respondent. The priority rights afforded the United States under § 64a of the Bankruptcy Act do not defeat valid pre-existing liens. See 11 U.S.C. § 104(a); 3A W. Collier, Bankruptcy § 64.02[2] (14th ed. 1975).
13
Jurisdiction was invoked under 28 U.S.C. § 1345.
14
Section 9-310 of the Model UCC provides:
"When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise." Model UCC § 9-310 (1979 pamphlet).
The Tax Lien Act of 1966 extends similar protection to repairmen:
"Even though notice of a [federal tax lien] has been filed, such lien shall not be valid.
* * * * *
"With respect to tangible personal property subject to a lien under local law securing the reasonable price of the repair or improvement of such property, as against a holder of such a lien, if such holder is, and has been, continuously in possession of such property from the time such lien arose." 26 U.S.C. § 6323(b)(5).
15
The court found it unnecessary to determine whether the same result would obtain under Georgia's Commercial Code. 563 F.2d, at 688 n. 17, 689.
16
Other Courts of Appeals have adopted divergent approaches regarding the priority of federal security interests arising from loan programs. Compare, e. g., Chicago Title Ins. Co. v. Sherred Village Associates, 568 F.2d 217 (CA1 1978), cert. pending, No. 77-1611; United States v. General Douglas MacArthur Senior Village, Inc., 470 F.2d 675 (CA2 1972), cert. denied, sub nom. County of Nassau v. United States, 412 U.S. 922, 93 S.Ct. 2732, 37 L.Ed.2d 149 (1973); United States v. Oswald & Hess Co., 345 F.2d 886 (CA3 1965); Willow Creek Lumber Co. v. Porter County Plumbing & Heating, Inc., 572 F.2d 588 (CA7 1978); United States v. Latrobe Construction Co., 246 F.2d 357 (CA8), cert. denied, 355 U.S. 890, 78 S.Ct. 262, 2 L.Ed.2d 189 (1957); T. H. Rogers Lumber Co. v. Apel, 468 F.2d 14 (CA10 1972), with, e. g., United States v. Gregory-Beaumont Equipment Co., 243 F.2d 591 (CA8 1957); United States v. California-Oregon Plywood, Inc., 527 F.2d 687 (CA9 1975). See also United States v. Union Livestock Sales Co., 298 F.2d 755 (CA4 1962); United States v. Kramel, 234 F.2d 577 (CA8 1956); United States v. Chappell Livestock Auction, Inc., 523 F.2d 840 (CA8 1975); Bumb v. United States, 276 F.2d 729 (CA9 1960).
17
See United States v. Standard Oil Co. of California, 332 U.S. 301, 305-306, 67 S.Ct. 1604, 1606-1607, 91 L.Ed. 2067 (1947); United States v. Seckinger, 397 U.S. 203, 209-210, 90 S.Ct. 880, 884-885, 25 L.Ed.2d 224 (1970); Friendly, In Praise of Erie —And of the New Federal Common Law, 39 N.Y.U.L.Rev. 383, 410 (1964); see also Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 63 S.Ct. 172, 173, 87 L.Ed. 165 (1942); Board of County Comm'rs of County of Jackson v. United States, 308 U.S. 343, 349-350, 60 S.Ct. 285, 287-288, 84 L.Ed. 313 (1939).
18
See United States v. Security Trust & Sav. Bank, 340 U.S., at 49, 71 S.Ct., at 112; cf. United States v. Yazell, 382 U.S. 341, 356, 86 S.Ct. 500, 509, 15 L.Ed.2d 404 (1966).
19
See United States v. Standard Oil Co., supra, 332 U.S., at 305-307, 67 S.Ct., at 1606-1608; Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797, 800, and n. 15 (1957) (hereinafter Mishkin); Comment, Adopting State Law as the Federal Rule of Decision: A Proposed Test, 43 U.Chi.L.Rev. 823, 825 (1976); see also Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U.S. 29, 33-34, 77 S.Ct. 119, 121-122, 1 L.Ed.2d 93 (1956); Miree v. DeKalb County, 433 U.S. 25, 29, 31-32, 97 S.Ct. 2490, 2493, 2494-2495, 53 L.Ed.2d 557 (1977).
20
See Board of County Comm'rs v. United States, supra, 308 U.S., at 349-350, 60 S.Ct., at 287-288; National Metropolitan Bank v. United States, 323 U.S. 454, 456, 65 S.Ct. 354, 355, 89 L.Ed. 383 (1945); Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946); Moor v. County of Alameda, 411 U.S. 693, 701-702, and n. 12, 93 S.Ct. 1785, 1791-1792, 36 L.Ed.2d 596 (1973).
21
As explained by one commentator:
"Whether state law is to be incorporated as a matter of federal common law . . . involves the . . . problem of the relationship of a particular issue to a going federal program. The question of judicial incorporation can only arise in an area which is sufficiently close to a national operation to establish competence in the federal courts to choose the governing law, and yet not so close as clearly to require the application of a single nationwide rule of substance." Mishkin 805.
22
Miree v. DeKalb County, supra, 433 U.S., at 28-29, 97 S.Ct., at 2493-2494; see RFC v. Beaver County, 328 U.S. 204, 209-210, 66 S.Ct. 992, 995-996, 90 L.Ed. 1172 (1946); United States v. Brosnan, 363 U.S. 237, 241-242, 80 S.Ct. 1108, 1111-1112, 4 L.Ed.2d 1192 (1960); United States v. Yazell, supra, 382 U.S., at 356-357, 86 S.Ct., at 509; Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 701-703, 86 S.Ct. 1107, 1110-1112, 16 L.Ed.2d 192 (1966).
23
See United States v. Allegheny County,, 322 U.S. 174, 183, 64 S.Ct. 908, 913, 88 L.Ed. 1209 (1944); RFC v. Beaver County, supra, 328 U.S., at 209-210, 66 S.Ct., at 995-996; Auto Workers v. Hoosier Cardinal Corp., supra, 383 U.S., at 706-707, 86 S.Ct., at 1113-1114; Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966); United States v. Little Lake Misere Land Co., 412 U.S. 580, 595-597, 93 S.Ct. 2389, 2398-2399, 37 L.Ed.2d 187 (1973); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465-466, 95 S.Ct. 1716, 1722-1723, 44 L.Ed.2d 295 (1975); Miree v. DeKalb County, supra, 433 U.S., at 31-32, 97 S.Ct., at 2494-2495; Robertson v. Wegmann, 436 U.S. 584, 590-593, 98 S.Ct. 1991, 1995-1997, 56 L.Ed.2d 554 (1978); see also De Sylva v. Ballentine, 351 U.S. 570, 581, 76 S.Ct. 974, 980, 100 L.Ed. 1415 (1956).
24
See United States v. Brosnan, supra, 363 U.S., at 241-242, 80 S.Ct., at 1111-1112; United States v. Yazell, supra, 382 U.S., at 352-353, 86 S.Ct., at 506-507; Wallis v. Pan American Petroleum Corp., supra, 384 U.S., at 68, 86 S.Ct., at 1304; United States v. Little Lake Misere Land Co., supra, 412 U.S., at 599-603, 93 S.Ct., at 2400-2402.
25
The applicable regulations recognize that "[i]n order to implement and facilitate th[e] Federal loan programs," SBA offices should comply with state law, in particular, with state procedural requirements for obtaining enforceable security interests. 13 CFR § 101.1(d)(3) (1978). And the SBA routinely follows such rules, Tr. of Oral Arg. in No. 77-1359, p. 43, as it did here by requiring Republic to file a financing statement and a notice of assignment. That the SBA conforms its transactions to state law is also reflected in the security agreement between Republic and O. K. Super Markets, approved by the SBA, which provided that the contract would be construed according to Texas law and bound the parties' assigns to this provision. App. in No. 77-1359, p. 68.
26
For example, the Manual stresses that the borrower's inventory should be used as collateral only after careful consideration of the protection afforded under state law:
"Uniform Commercial Code—Factor's Lien Laws. Most states have adopted the Uniform Commercial Code or Factor's Lien Laws. Under such laws it is possible to obtain a general lien covering all existing and to-be-acquired inventory. Generally, these statutes also provide that the lien may follow the accounts receivable or proceeds resulting from the sale of the inventory. . . . The loan specialist should inquire as to any prior liens against either inventories or receivables. The lien obtained under the Code (or Factor's Lien Laws) covering accounts receivable or other proceeds resulting from the sale of the inventory is not generally invalidated by the fact that the borrower thereafter deals with the accounts receivable or proceeds as his own. . . . However, a careful study should be made of borrower's credit circumstances to determine the measures of control and supervision to be imposed. . . . Although the collateral may not require close supervision from inception, the security agreement should contain provisions that borrower shall . . . comply with such other servicing practices as are deemed necessary by counsel to safeguard the collateral.
"Accounts receivable resulting from the sale of inventories assigned to SBA prior to adoption of the Code in code states shall be serviced in accordance with applicable local law existing prior to the date of adoption of the Code. This is not necessary however, if in the opinion of counsel, servicing can be performed in a manner permitted under the Code without adversely affecting SBA's interest." SBA Manual, ¶ 29(a)(4)(b) (1977). See also n. 25, supra.
27
After publication of the 1978 Code of Federal Regulations, the FHA began reorganizing its regulations to provide separate rules for each loan program. Most provisions of 7 CFR cited throughout this opinion have been recodified with modifications not relevant here. See, e. g., 43 Fed.Reg. 5504, 7978, 23986, 55882-55895, 56643-56647, 59078 (1978); 44 Fed.Reg. 1701, 4431-4458, 6354, 10979-10980 (1979). For convenience, we refer to the 1978 version of the FHA regulations contained in 7 CFR.
28
The differences between the rules, moreover, are insignificant in comparison with the similarities. All States except Louisiana have enacted Art. 9 of the UCC with minor variations. See Model UCC, 1-2 (1979 pamphlet). As Judge Friendly observed in United States v. Wegematic Corp., 360 F.2d 674, 676 (CA2 1966):
"When the states have gone so far in achieving the desirable goal of a uniform law governing commercial transactions, it would be a distinct disservice to insist on a different one for the segment of commerce, important but still small in relation to the total, consisting of transactions with the United States."
29
See 13 CFR §§ 101.3, 101.7(a) (1978); 7 CFR §§ 1800.1-1800.4 (1978).
30
See 13 CFR §§ 120.2(c), (d), as amended, 43 Fed.Reg. 3702 (1978); 13 CFR §§ 122.15, 122.16 (1978); SBA Manual, &Par; 10, 11, 16-40; 7 CFR §§ 1801.2-1801.4, 1904.108, 1904.127, 1904.175, 1980.175 (1978).
31
See United States v. Yazell, 382 U.S., at 344-346, 86 S.Ct., at 502-504; 13 CFR §§ 101.2-1, 101.7(a), 122.16 (1978); SBA Manual, &Par; 16-17, 21(c), 23(a)-(f), 29(a)(8), 30(l), 31(b)(6); 7 CFR §§ 1801.1-1801.4, 1801.11, 1921.107, 1930.5 (1978).
32
The Court of Appeals in No. 77-1644 believed that a uniform federal law was necessary to determine the sufficiency of the FHA's financing statement in part because the agency uses standard forms with preprinted descriptions of collateral commonly taken as security. 563 F.2d, at 682. However, the form also has a blank space for listing specific property. See App. in No. 77-1644, p. 12 (Form FHA 440-25). And the FHA regulations advise that individual descriptions be made, specifically when "major items of equipment" are involved. 7 CFR §§ 1921.105(e)(1),(2) (1978). Since the standard FHA forms leave spaces for recording the details of each loan, the agency can take account of local law without altering these materials. See, e. g., App. in No. 77-1644, p. 8 (Form FHA 440-4).
33
United States v. Security Trust & Sav. Bank, 340 U.S., at 51, 71 S.Ct., at 114.
34
Congress did not delineate specific priority rules in either the tax lien statute prior to 1966, the insolvency statute, or the statutes authorizing these lending programs. See nn. 6 and 8, supra. Accordingly, the Government urges that we establish identical priority rules for all three situations. This argument overlooks the evident distinction between lending programs for needy farmers and businesses and statutes created to guarantee receipt of debts due the United States. We, of course, express no view on the proper priority rules to govern federal consensual liens in the context of statutes other than those at issue here.
35
See nn. 3 and 11, supra ; 15 U.S.C. § 631 (1976 ed. and Supp. III) (declaration of policy); 7 U.S.C. § 1921 (congressional findings); 43 Fed.Reg. 55883 (1978) (to be codified in 7 CFR § 1941.2); S.Rep.No. 566, 87th Cong., 1st Sess., 1, 64 (1961); Hearings on H.R. 4384 before the House Committee on Agriculture, 78th Cong., 2d Sess., 43-45 (1944).
36
A 1958 amendment to the Small Business Act subordinates SBA liens to state and local property tax liens when the tax liens would be superior to nonfederal security interests under state law. 72 Stat. 396, 15 U.S.C. § 646. The FHA has established by regulation that purchase-money security interests take priority over previously arising FHA liens. 7 CFR § 1921.106 (1978); see § 1930.44. In appropriate circumstances, the FHA also subordinates its liens to interests that are junior under state law. 7 U.S.C. § 1981(d) (1976 ed. and Supp. III); see, e. g., 7 CFR § 1930.30 (1978).
37
We reject the Government's suggestion that the choateness and first-in-time doctrines are needed to prevent States from "undercutting" the agencies' liens by creating "arbitrary" rules. Brief for United States in No. 77-1359, pp. 24-25. Adopting state law as an appropriate federal rule does not preclude federal courts from excepting local laws that prejudice federal interests. See, e. g., RFC v. Beaver County, 328 U.S., at 210, 66 S.Ct., at 995; De Sylva v. Ballentine, 351 U.S., at 581, 76 S.Ct., at 980; United States v. Little Lake Misere Land Co., 412 U.S., at 596, 93 S.Ct., at 2398. The issue here, however, involves commercial rules of general applicability, based on codes that are remarkably uniform throughout the Nation. See n. 28, supra.
38
See nn. 30, 31, supra.
39
The facts presented here demonstrate the ease with which the agencies could have protected themselves. O. K. Super Markets informed the SBA of Kimbell's security interests in the inventory. Had the agency followed its guidelines and checked local records, it would have discovered the 1968 security agreements Kimbell filed with its financing statements. See SBA Manual, &Par; 29(a)(3), (4), (8), 31(b)(6). Thus, the agency should have known that the agreements secured future advances. The SBA was also informed in the loan guarantee application that O. K. Super Markets intended to discharge the debts it owed Kimbell from the Republic loan proceeds. See App. in No. 77-1359, p. 72. Additionally, as a result of negotiations with O. K. Super Markets' creditors, the SBA was aware that Kimbell would not guarantee any portion of the Republic loan because it wanted its account paid in full before advancing further credit. Id., at 62-63. In these circumstances, the SBA easily could have persuaded Kimbell either to subordinate its liens covering future advances or to terminate the 1968 security arrangements once the obligations were satisfied. This procedure, moreover, would have comported with agency practices. The SBA Manual allows employees to impose conditions on third parties when "advisable," and to note such agreements on the appropriate forms. Id., ¶ 30(e).
With respect to the FHA loan, the agency could have followed the practices of private lenders in protecting themselves from subsequent liens that take priority under state law. For example, the FHA might have secured its loan with property not subject to repairman's liens or demanded more substantial collateral.
40
E. g., 13 CFR § 120.2, as amended, 43 Fed.Reg. 3702 (1978); 13 C.F.R. §§ 122.2, 122.3 (1978); SBA Manual, &Par; 5-7; nn. 30, 31, supra.
41
See nn. 6 and 8, supra. Of particular relevance here, the Act added mechanic's liens to the list of private interests already protected against unrecorded tax liens. 26 U.S.C. § 6323(a). Holders of consensual security interests also receive priority over unrecorded tax liens. Ibid. Moreover, the Act gives priority to many types of nonfederal liens even when the Government has filed notice of the tax lien. § 6323(b). Included in this group are repairman's liens in personal property, § 6323(b)(5), see n. 14, supra, and in limited situations, liens securing future advances. § 6323(c).
42
The cases under consideration illustrate the substantial new risks that creditors would encounter. Neither the financing statement filed by Republic nor its security agreement mentioned the SBA. App. in No. 77-1359, pp. 67-69. To give the federal lien priority in this situation would undercut the reliability of the notice filing system, which plays a crucial role in commercial dealings. Subsequent creditors such as Crittenden and prior creditors such as Kimbell would have no trustworthy means of discovering the undisclosed security interest. Even those creditors aware of a federal agency's lien would have to adjust their lending arrangements to protect against the stringent choateness requirements. In recognition of these burdens, commentators have criticized the doctrine for frustrating private creditors' expectations as well as generating inconsistencies in application. See, e. g., 2 G. Gilmore, Security Interests in Personal Property 1052-1073 (1965); Plumb, Federal Liens and Priorities—Agenda for the Next Decade, 77 Yale L.J. 228 (1967); Kennedy, From Spokane County to Vermont: The Campaign of the Federal Government Against the Inchoate Lien, 50 Iowa L.Rev. 724 (1965); Kennedy, Relative Priority; Comment, The Relative Priority of Small Business Administration Liens: An Unreasonable Extension of Federal Preference?, 64 Mich.L.Rev. 1107 (1966).
Considerable uncertainty would also result from the approach used in the opinions below. Developing priority rules on a case-by-case basis, depending on the types of competing private liens involved, leaves creditors without the definite body of law they require in structuring sound business transactions.
43
For example, the decision below in No. 77-1359 noted that priority rules favoring the Government could inhibit private lenders' extension of credit to the very people for whom Congress created these programs. 557 F.2d, at 500. See MacLachlan, Improving the Law of Federal Liens and Priorities, 1 B.C.Ind. and Com.L.Rev. 73, 74-76 (1959).
44
See RFC v. Beaver County, 328 U.S., at 209-210, 66 S.Ct., at 995-996; United States v. Brosnan, 363 U.S., at 242, 80 S.Ct., at 1111; United States v. Yazell, 382 U.S., at 352, and nn. 26-27, 86 S.Ct., at 506; Wallis v. Pan American Petroleum Corp., 384 U.S., at 68, 86 S.Ct., at 1304.
| 1112
|
441 U.S. 39
99 S.Ct. 1572
60 L.Ed.2d 28
Genanett ALEXANDER et al., Petitioners,v.UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al. Patricia Roberts HARRIS, Secretary of Housing and Urban Development, et al., Petitioners, v. Sadie E. COLE et al.
Nos. 77-874, 77-1463.
Argued Dec. 5, 1978.
Decided April 17, 1979.
Syllabus
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Relocation Act) makes relocation benefits available for individuals and businesses that satisfy the statutory definition of a "displaced person." Section 101(6) of the Act defines that term to include "any person who . . . moves . . . as a result of the acquisition of . . . real property . . . or as a result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency." Both of these cases involve tenants displaced from housing projects that the Department of Housing and Urban Development (HUD) acquired because the projects' sponsors defaulted on federally insured loans. Petitioners in No. 77-874 were dislocated by HUD's subsequent closing of an Indianapolis, Ind., housing project, and HUD refused to provide relocation benefits for these tenants. Petitioners then initiated this action in Federal District Court, claiming that they were "displaced persons" under the written order clause of § 101(6). The District Court rejected the tenants' statutory construction and granted summary judgment for HUD. The Court of Appeals affirmed, holding that § 101(6) encompasses only displacements for programs designed to benefit the public as a whole or to fulfill a public need, not dislocations caused by the irretrievable failure of a public housing project. Respondents in No. 77-1463 were displaced when HUD determined that a Washington, D.C., project should be demolished and the land sold to private developers. When HUD ordered the tenants to vacate but declined to extend assistance under the Relocation Act, respondents brought suit in Federal District Court. The court agreed that the dislocated tenants were covered by the written order clause of § 101(6), and granted summary judgment for respondents. The Court of Appeals affirmed, holding that the written order clause encompasses all persons ordered to vacate so that an agency's property can be devoted to a federal program "designed for the benefit of the public as a whole." Because HUD's demolition plans met this description, the tenants HUD directed to move were considered "displaced persons."
Held :
1. The written order clause of § 101(6) encompasses only those persons ordered to vacate in connection with the actual or proposed acquisition of property for a federal program. Pp. 49-63.
(a) Both the language and origins of the Relocation Act demonstrate that Congress intended to provide relocation assistance when property is acquired for federal programs, not to extend assistance beyond that limited context for all persons somehow displaced by Government programs. Pp. 49-53.
(b) Similarly, the legislative history of the written order clause reveals no congressional intent to extend relocation benefits beyond the acquisition context. Rather, this clause was designed to ensure that assistance is available for a distinct group of persons directed to move because of a contemplated acquisition, whether the agency ultimately acquires the property or not. Thus, the clause applies only when a proposed acquisition directly causes issuance of the notice to vacate and the property acquisition is intended to further a federal program or project. Pp. 53-59.
(c) The structure of the Relocation Act, as well as the statutory provisions specifying the benefits available for displaced persons, manifests the limited scope of § 101(6) and the written order clause. Pp. 60-62.
(d) In essence, the written order clause embodies two causal requirements. First, the written order to vacate must result directly from an actual or contemplated property acquisition. Second, and more fundamentally, that acquisition must be "for," or intended to further, a federal program or project. In combination, these two causal requirements substantially limit applicability of the clause, so that persons directed to vacate property for a federal program cannot obtain relocation assistance unless the agency also intended at the time of acquisition to use the property for such a program or project. Thus, a program developed after the agency procures property will not suffice, even though it necessitates displacements, since that program could not have motivated the property acquisition. Pp. 62-63.
2. Here, the relationship between HUD's acquisitions and orders to vacate does not bring the tenants within the purview of § 101(6). Pp. 63-67.
(a) The Relocation Act's legislative history demonstrates that the mere anticipation and authorization of default acquisitions in the National Housing Act mortgage insurance programs cannot render these tenants eligible for relocation assistance under § 101(6). By requiring that an acquisition be "for" a federal program or project, Congress intended that the acquisition must further or accomplish a program designed to benefit the public as a whole. Even assuming that the mortgage insurance programs constitute federal "programs or projects," default acquisitions arising out of those programs do not satisfy § 101(6)'s causality requirements. Although these default acquisitions occur as a result of the mortgage insurance programs' failures, they do not further the purpose of these particular programs. Pp. 64-65.
(b) In addition, HUD's adoption of a property management plan cannot retroactively establish the requisite purpose for acquiring property in the first instance. P. 65.
(c) Even though HUD's demolition plan in No. 77-1463 is the type of program or project to which § 101(6) refers, HUD did not acquire the project for that purpose. The statute requires more than a causal connection between the order to vacate and the demolition program. The program or project must also be the reason for acquiring the property. Without the requisite relationship between the demolition program and the acquisition, HUD's proposal for disposing of the housing project is no different than any other property management plan, insufficient by itself to confer eligibility under § 101(6). Pp. 65-66.
No. 77-874, 555 F.2d 166, affirmed; No. 77-1463, 187 U.S.App.D.C. 156, 571 F.2d 590, reversed.
John Vanderstar, Washington, D. C., for petitioners in No. 77-874 and for respondents in No. 77-1463.
William C. Bryson, Washington, D. C., for respondents in No. 77-874 and for petitioners in No. 77-1463.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
These cases require us to interpret the definition of a "displaced person" set forth in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Relocation Act), 84 Stat. 1894, 42 U.S.C. § 4601 et seq. Section 101(6) of the Act defines a "displaced person" as
2
"any person who . . . moves . . . as the result of the acquisition of . . . real property, . . . or as a result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency . . . ." 42 U.S.C. § 4601(6).1
3
Relocation benefits are available under the Act for individuals and businesses that satisfy either the "acquisition" or "written order" clause of this definition. Because the Courts of Appeals for the Seventh and District of Columbia Circuits have adopted conflicting interpretations of the written order clause, we granted certiorari.2 437 U.S. 903, 98 S.Ct. 3087, 57 L.Ed.2d 1132 (1978).
4
Both cases involve housing projects that the Department of Housing and Urban Development (HUD) acquired after the projects' sponsors defaulted on federally insured loans. We must determine whether the written order clause encompasses the tenants required to vacate those housing projects, even though HUD's orders to vacate were not motivated by a governmental acquisition of property to further a public program or project.
5
* A.
6
Petitioners in No. 77-874 are 17 former tenants of the Riverhouse Tower Apartments, a low- and middle-income housing project in Indianapolis, Indiana. This complex was built in the late 1960's by a private nonprofit corporation, Riverhouse Apartments, Inc., whose mortgage HUD insured and subsidized pursuant to § 221(d)(3) of the National Housing Act, 75 Stat. 150, as amended, 12 U.S.C. § 1715l (d)(3). Upon completion of the project, the Government National Mortgage Association (GNMA) purchased the mortgage from the private lender in accordance with § 221(d)(3) of the Housing Act. When Riverhouse Apartments, Inc., defaulted on the loan in July 1970, GNMA assigned the mortgage to HUD in exchange for payment of the statutory mortgage benefits. Three years later, HUD initiated foreclosure proceedings, and a court-appointed receiver assumed operation of the project until HUD purchased the property at a foreclosure sale in August 1974.
7
HUD initially retained a management agent to continue operating the newly acquired project. However, the condition of the property had deteriorated so seriously during the period of default that HUD soon decided to close the apartment complex. Notices to quit were served on all remaining tenants in November 1974, and by the following February, the buildings were vacant. HUD refused to provide relocation benefits for these dislocated tenants or to disclose its plans regarding the terminated project.3
8
Petitioners then initiated this action in Federal District Court, claiming, inter alia, that they were "displaced persons" entitled to assistance under the Relocation Act.4 Construing the written order clause of § 101(6) literally, the tenants argued that they had moved upon receiving written orders to vacate property acquired by a Government agency. The District Court rejected this statutory construction and granted summary judgment for HUD. Blades v. Dept. of HUD, Civ. No. IP 74-706-C (SD Ind., July 1, 1976). The Court of Appeals for the Seventh Circuit affirmed. In its view, § 101(6) encompasses only displacements for programs designed to benefit the public as a whole or to fulfill a public need, not dislocations caused by the irretrievable failure of a public housing project. 555 F.2d 166, 169-170 (1977).5
B
9
The tenants in No. 77-1463 formerly occupied the Sky Tower apartment complex built in Washington, D.C., during the 1950's. A nonprofit corporation purchased Sky Tower in 1970, intending to convert a number of its small "garden" apartments into larger units for low- and moderate-income families. HUD agreed to assist in the rehabilitation by insuring the corporation's mortgage on the complex and subsidizing its interest payments, pursuant to § 236 of the National Housing Act, 82 Stat. 498 (1968), 12 U.S.C. § 1715z-1. Difficulties with two successive general contractors eventually prevented the corporate sponsor from making interest payments on its loan. As a result, the mortgagee declared the sponsor in default, foreclosed on the mortgage, and conveyed title to HUD in exchange for the statutory mortgage insurance benefits. See 12 U.S.C. §§ 1713(g), (k).
10
After acquiring title to Sky Tower in June 1973, HUD hired a management agent to continue operating the partially rehabilitated complex. By September 1974, however, HUD realized that Sky Tower's deteriorated condition would render any further efforts at rehabilitation futile. The agency therefore planned to demolish the buildings and sell the land to private developers for construction of single-family homes. When the 72 families living in the complex were ordered to vacate, HUD declined to extend assistance under the Relocation Act.6
11
A group of the Sky Tower tenants brought this suit in Federal District Court, challenging HUD's decision to raze the complex and its refusal to provide full relocation benefits. The District Court preliminarily enjoined HUD from completing the demolition, and subsequently granted summary judgment for the tenants on the benefits issue. 396 F.Supp. 1235 (D.C.1975).7 A divided panel of the Court of Appeals for the District of Columbia Circuit agreed that these tenants were "displaced persons" under the written order clause of § 101(6). 187 U.S.App.D.C. 156, 161, 571 F.2d 590, 595 (1977). In so ruling, the Court of Appeals rejected HUD's argument that § 101(6) reaches only persons dislocated by an agency's purposeful acquisition of property for use in certain types of government programs. The court instead considered the written order clause applicable whenever an agency orders persons to vacate so that property can be devoted to a federal program " 'designed for the benefit of the public as a whole.' " 187 U.S.App.D.C., at 161, 571 F.2d, at 595. In the court's view, HUD's demolition plan met this description. Ibid.8
II
12
Section 101(6) of the Relocation Act, as previously indicated, provides that a "displaced person" is one who moves "as a result of the acquisition of . . . real property, . . . or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency . . . ." 42 U.S.C. § 4601(6). In neither case do the tenants claim coverage under the "acquisition" clause of § 101(6), which reaches persons dislocated by the actual procurement of property for a federal program or project. Brief for Respondents in No. 77-1463, p. 15, and n. 17; Tr. of Oral Arg. 10. Hence, these tenants' eligibility for relocation assistance turns on the meaning of the definition's written order clause. More precisely, their eligibility depends on the import of two critical phrases not specifically defined in the Act, "acquiring agency" and "for a program or project."
13
The tenants contend that "acquiring agency" simply denotes a governmental body that has previously acquired property and that eventually orders persons to vacate. In contrast, HUD reads the phrase as a shorthand description of an agency currently engaged in the process of acquiring property. Under HUD's construction, the written order clause contains an implicit acquisition requirement. The clause thus construed does not apply unless an agency's proposed acquisition of property directly causes issuance of the displacing order, whereas the tenants' interpretation demands no immediate causal connection between the procurement of property and the order to vacate.
14
The parties also disagree about the proper referent for the phrase, "for a program or project."9 HUD contends that this phrase modifies the acquisition requirement included in the written order clause. Consequently, "for a program or project" specifies the agency's original purpose in acquiring property, not just its purpose in issuing an order to vacate. Under this construction, the written order clause applies only if an agency issues its notice to vacate pursuant to an actual or proposed acquisition of property intended to further a federal program. Thus, tenants of a housing project acquired by the Government because of the owner's loan default would not be eligible for relocation assistance when the acquiring agency later adopts a program necessitating their displacement.
15
The tenants, on the other hand, read "for a program or project" as referring solely to the written order. The phrase therefore identifies the agency's reason for ordering persons to vacate, but does not make eligibility depend on the agency's original purpose in acquiring the property. According to this analysis, the written order clause covers any individual who receives a written order to vacate property that an agency has previously acquired, provided the displacement is "for" a federal program or project. Moreover, the tenants broadly construe "program or project" to include any governmental program designed to fulfill a public need.
16
The statutory language is susceptible of either construction. However, an examination of Congress' purpose in adopting the Relocation Act, the legislative history of § 101(6), and the structure of the Act as a whole persuades us that HUD's interpretation more nearly reflects the intended scope of this assistance program.
A.
17
Passage of the Relocation Act in 1970 concluded nearly a decade of congressional effort to standardize federal legislation regarding relocation assistance. Prior to the 1960's, Congress had enacted special provisions to assist persons displaced when particular federal agencies acquired property for designated public projects.10 As a result, relocation benefits varied substantially from program to program. The House Public Works Committee responded to these variations in 1961 by creating the Select Subcommittee on Real Property Acquisition. In 1964, this Subcommittee submitted a lengthy Report concerning the deficiencies of existing law and its proposed "Fair Compensation Act" became the basis for most of the provisions ultimately codified in the Relocation Act.11
18
The proposed Fair Compensation Act unambiguously reflects Congress' limited purpose in revising the special relocation legislation. The Act's declared purpose was to afford "persons affected by the acquisition of real property in Federal and federally assisted programs . . . fair and equitable treatment on a basis as nearly uniform as practicable." Select Subcommittee Study 147 (emphasis added); see id., at 1-2, 122. This statement of policy embodied Congress' recognition that existing law provided relocation benefits only to those persons dislocated by governmental acquisitions of property for use in public projects.12 And in accord with its mandate, the Select Subcommittee drafted the replacement legislation to standardize and improve the assistance provided within that particular context.13 Thus, both the language and origins of the Relocation Act demonstrate that Congress initially intended to provide better relocation assistance when property is acquired for federal programs, not to extend assistance beyond that limited context to all persons somehow displaced by governmental programs.14
19
Congress' basic objective remained unchanged through succeeding legislative sessions as it considered a number of bills derived from the proposed Fair Compensation Act. During this period, the individual sponsors and the Senate Committee on Government Operations altered slightly the language used to declare Congress' purpose, but the meaning was unaffected.15 Thus, the original "Declaration of Policy" in S. 1, 91st Cong., 1st Sess., § 201 (1969), the bill finally enacted as the Relocation Act, stated that the legislation was designed
20
"to establish a uniform policy for the fair and equitable treatment of owners, tenants, and other persons displaced by the acquisition of real property in Federal and federally assisted programs to the end that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole." (Emphasis added.)
21
This language leaves little doubt that Congress' concern was still with displacements caused by the acquisition of property for a Government program or project.16
22
In arguing that Congress had a broader purpose, to provide relocation assistance outside the acquisition context, the tenants rely on language adopted by the House of Representatives after the Senate passed S. 1. When the House Committee on Public Works reorganized and shortened the bill's provisions into their final form, it also streamlined the "Declaration of Policy" by deleting the references to acquisitions of property. Consequently, § 201 of the Relocation Act simply refers to "persons displaced as a result of Federal and federally assisted programs,"17 and the tenants suggest that all such persons are the intended beneficiaries of the statute. However, the tenants' interpretation of this language is plainly inconsistent with prior versions of the section, all of which expressly related to displacements caused by the acquisition of property for the programs specified in § 201.18 Nothing in the legislative materials suggests that this late revision in the Act's statement of purpose reflected any substantive departure from Congress' previous statutory design.19 Indeed, the House Committee that shortened the Declaration of Policy stated in its Report that the bill "provides for relief of the economic dislocation which occurs in the acquisition of real property for Federal and federally assisted programs." H.R.Rep.No.91-1656, p. 3 (1970), U.S.Code Cong. & Admin.News 1970, pp. 5850, 5852. Accordingly, the consistent purpose underlying this legislation persuades us that Congress intended the written order clause to apply only when an agency proposes acquiring property to further a federal program or project.
B
23
The legislative history specifically concerning the definition of a displaced person reinforces our conclusion. Prior versions of § 101(6) encompassed only persons dislocated by actual or proposed property acquisitions, and in particular, those acquisitions intended to further federal programs and projects. The legislative materials demonstrate that when Congress added the written order clause to this definition, its purpose was to delineate more precisely a subcategory of the originally intended beneficiaries consisting of those who move in anticipation that a property acquisition for a federal program will necessitate their displacement. Viewed in context, the written order clause addresses a special situation related to unconsummated property acquisitions, not all displacements loosely connected with Government programs.
24
The definition of a displaced person originated in the proposed Fair Compensation Act. Section 115 defined the term to include persons and businesses that move from real property "as a result of the acquisition or imminence of acquisition of such real property, in whole or in part, by a Federal or State agency." Select Subcommittee Study 157-158. That this choice of language was deliberate can be seen from other provisions of the Act, which authorized relocation assistance only when the "head of any Federal agency acquires real property for public use."20
25
The version of the Fair Compensation Act introduced in the next Congress adopted the same definition of a displaced person.21 However, witnesses during the Senate hearings criticized the phrase "or imminence of acquisition" as too ambiguous to provide guidance for agencies and potential displacees.22 In response, the Senate Committee on Government Operations amended the phrase to read "or reasonable expectation of acquisition," thereby incorporating an objective standard of eligibility.23 The limited scope of this amendment, as well as the definition, is apparent from the Committee's explanation that the change was designed
26
"to remove some of the ambiguities surrounding the meaning of 'imminence' and to make it amply clear that this legislation applies to persons who move from property to be acquired in connection with a Federal or federally assisted program when or shortly after the proposed project is announced, and when the announcement is made substantially prior to the time the project is to be put into effect." S.Rep.No.1378, 89th Cong., 2d Sess., 9 (1966).
27
This passage and others in the Senate Committee Report24 clearly indicate that Congress framed the definition to reach only persons displaced by actual or planned acquisitions of property. These materials also demonstrate that Congress restricted the definition even further by focusing exclusively on property acquisitions for use in federal programs and projects.25
28
The Senate's amended definition of a displaced person was retained in the relocation bills proposed in succeeding legislative sessions, including the original version of the bill finally enacted as the Relocation Act, S. 1, 91st Cong., 1st Sess., § 105 (1969).26 The Senate passed this bill with only minor amendments and without significant debate.27 But the House Committee on Public Works amended the definition of a displaced person when reorganizing the bill's provisions into their final form.28 This late amendment added the clause on which the tenants base their argument that relocation assistance was intended for all persons displaced by Government programs.
29
The contemporaneous legislative materials, however, refute the tenants' interpretation of the written order clause. During the House hearings on the relocation bills, a number of witnesses criticized even the "reasonable expectation of acquisition" language as overly vague.29 To remedy this problem, representatives of the United States Department of Transportation and HUD recommended relating the expectation of acquisition to a readily discernible official act, so that persons who justifiably relied on agency representations could still obtain reimbursement even if the agency later failed to complete the acquisition.30 The House Committee accepted this suggestion and replaced "or reasonable expectation of acquisition" with "or as the result of the written order of the acquiring agency to vacate real property."31 Thus, the sole objective underlying the present written order clause was to delineate more precisely the persons eligible for assistance as a result of planned, but unconsummated, acquisitions of property for federal programs.
30
The House Committee Report and floor debate also reflect this limited purpose. Based on the previously understood scope of this legislation and on testimony given during the House hearings,32 the House Committee was well aware that the unamended definition of a displaced person excluded those displaced by means other than property acquisitions for public projects. The Committee presumably would have articulated any intent to extend coverage beyond the acquisition context or to eliminate the requirement that an acquisition be for a federal program.33 Instead, the House Report simply explained that under the new written order clause, "[i]f a person moves as the result of such a notice to vacate, it makes no difference whether or not the real property actually is acquired." H.R.Rep.No.91-1656, p. 4 (1970), U.S.Code Cong. & Admin.News 1970, p. 5853 (emphasis added).34 Similarly, the Report observed in reference to the entire definition of a displaced person, "[t]he controlling point is that the real property must be acquired for a Federal or Federal financially assisted program or project." Ibid.; U.S.Code Cong. & Admin.News 1970, p. 5853.35
31
Nor is there any evidence that the Senate perceived the written order clause as an expansion of the bill when it accepted the House Committee's changes without a conference and almost without debate. 116 Cong.Rec. 40163-40172 (1970). The sole reference during the Senate deliberations to the amended definition of a "displaced person" appeared in a memorandum submitted on behalf of the administration, which stated:
32
"The House bill would limit the status of displaced person to those who move as the result of the acquisition of, or written notice to vacate, real property. The Senate version would provide a broader definition which includes those who move as the result of acquisition or reasonable expectation of acquisition." Id., at Rec. 42139.
33
This description of the amendment as a slight limitation, rather than a significant expansion of the statutory design, was accepted without dispute when the Senate approved the House version of this section as the final language for the Relocation Act. Ibid.
34
In sum, the legislative history of the written order clause reveals no congressional intent to extend relocation benefits beyond the acquisition context. Rather, this clause merely ensures that assistance is available for a distinct group of persons directed to move because of a contemplated acquisition, whether the agency ultimately acquires the property or not. The written order clause therefore preserves the original meaning of a displaced person, since it does not apply unless a proposed acquisition directly causes issuance of the notice to vacate and the property acquisition is intended to further a federal program or project.
C
35
The structure of the Relocation Act confirms our conclusion that Congress did not expect to provide assistance for all persons somehow displaced by Government programs. The benefit provisions involved here are but one part of a comprehensive statute that also establishes the procedures agencies must follow when acquiring land for federal programs. See 42 U.S.C. §§ 4651-4655. This placement in itself suggests that Congress was concerned with burdens related to Government acquisitions of property, as opposed to a broader range of dislocation problems. But more importantly, the Act's other relocation sections, which specify the benefits available for displaced persons, manifest the limited scope of § 101(6) and the written order clause.
36
Sections 202 and 205 of the Act require respectively that moving and related expenses be paid and relocation assistance advisory services be provided for displaced persons only when an agency proposes acquiring property for a federal program. See n. 1, supra. Thus, § 202 begins:
37
"Whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person . . . the head of such agency shall make a payment to any displaced person, upon proper application . . . ." 84 Stat. 1895, 42 U.S.C. § 4622.
38
Identical language triggers application of § 205. 84 Stat. 1897, 42 U.S.C. § 4625. If the tenants' broad construction of the written order clause were correct, certain individuals would qualify as displaced persons within the meaning of § 101(6), but the lack of an acquisition would preclude them from receiving benefits under §§ 202 and 205. Absent any indication that Congress intended such an anomalous result, we believe all three provisions must be given similar scope.36
39
Sections 203 and 204 of the Act, which authorize replacement housing payments for dislocated homeowners and tenants, see n. 1, supra, also bear upon interpretation of the written order clause. These sections provide benefits only to displaced persons who occupied their dwelling for a prescribed length of time "prior to the initiation of negotiations for the acquisition of the property." 42 U.S.C. § 4623(a)(1).37 Congress drafted these occupancy requirements to exclude from coverage persons who otherwise might attempt to obtain substantial relocation benefits by moving onto property after the acquisition process has begun.38 Yet according to the tenants' analysis of § 101(6), which requires only that an agency have procured the property at some point in the distant past, these occupancy strictures would exclude a much larger class of displaced persons than necessary to fulfill their objective. For example, tenants dislocated by the closing of a housing project that an agency had obtained 20 years earlier might satisfy the written order clause, but the failure of most to have lived in the project prior to the acquisition would prevent them from obtaining replacement housing payments under § 204. Again, we doubt Congress intended the statute to operate in this manner. Rather, §§ 203 and 204 demonstrate that the written order clause cannot be divorced from the acquisition context without distorting the statutory design.
40
Finally, the special benefits provision in § 217 of the Act highlights the limited reach of § 101(6). Congress drafted § 217 to preserve the one pre-existing relocation assistance program extending beyond the acquisition context.39 This section provides:
41
"A person who moves . . . as a direct result of any project or program which receives Federal financial assistance under title I of the Housing Act of 1949, as amended, or as a result of carrying out a comprehensive city demonstration program under title I of the Demonstration Cities and Metropolitan Development Act of 1966 shall . . . be deemed to have been displaced as the result of the acquisition of real property." 84 Stat. 1902, 42 U.S.C. § 4637 (emphasis added).
42
Inclusion of this special provision, to ensure that certain persons displaced by action other than an acquisition of property could still qualify for relocation benefits, reflects Congress' understanding that such persons would not be covered by the general definition of a "displaced person" set forth in § 101(6).40
D
43
Accordingly, we hold that the written order clause encompasses only those persons ordered to vacate in connection with the actual or proposed acquisition of property for a federal program. In essence, the clause embodies two causal requirements. First, the written order to vacate must result directly from an actual or contemplated property acquisition.41 Second, and more fundamentally, that acquisition must be "for," or intended to further, a federal program or project. In combination, these two causal requirements substantially limit applicability of the written order clause, so that persons directed to vacate property for a federal program cannot obtain relocation assistance unless the agency also intended at the time of acquisition to use the property for such a program or project. Thus, a program developed after the agency procures property will not suffice, even though it necessitates displacements, since that program could not have motivated the property acquisition.42 It remains to be considered, however, whether the relationship between HUD's acquisitions and orders to vacate brings the tenants here within the purview of § 101(6).
III
44
The tenants in both cases contend that the acquisitions of Sky Tower and Riverhouse Apartments met these statutory requirements because HUD obtained the property in connection with its mortgage insurance programs. In support of this contention, they point to Congress' explicit provision for occasional default acquisitions resulting from the mortgage insurance programs of the National Housing Act. Section 207(k) of that Act expressly authorizes HUD to purchase insured properties at foreclosure sales, and § 207(l ) grants HUD wide latitude to rehabilitate and operate property acquired upon default or to transfer the property and recoup the agency's investment. 12 U.S.C. §§ 1713(k), (l ). Pursuant to that mandate, HUD has prepared a Property Disposition Handbook—Multi-family Properties, RHM 4315.1 (1971), revised and set forth at 24 CFR Pt. 290 (1978), which requires responsible officials to formulate a disposition program for newly acquired properties.
45
However, the legislative history of the Relocation Act discussed in Part II, supra, demonstrates that the mere anticipation and authorization of default acquisitions in the mortgage insurance programs cannot render these tenants eligible under § 101(6). By requiring that an acquisition be "for" a federal program or project, Congress intended that the acquisition must further or accomplish a program designed to benefit the public as a whole.43 Even assuming that the National Housing Act mortgage insurance programs constitute federal "programs or projects,"44 default acquisitions arising out of those programs do not satisfy § 101(6)'s causality requirements. These acquisitions occur as a result of the mortgage insurance programs' predictable, though unfortunate failures, but the default acquisitions do not further the purpose of these particular programs.45 If the written order clause were satisfied by acquisitions so tangentially related to a federal program or project, then, for example, persons who default on federally insured housing loans presumably could obtain relocation assistance whenever a Government agency acquires their homes at a foreclosure sale and thereby causes displacements. Absent any evidence that Congress intended to provide relocation benefits under such circumstances, we believe typical default acquisitions are not "for" a federal program within the meaning of § 101(6). For the same reasons, HUD's preparation of a Handbook governing the disposition of property acquired in this manner fails to qualify these tenants for relocation benefits. Like any purchaser, HUD must manage the property it acquires. But the mere adoption of a management plan cannot retroactively establish the requisite purpose for acquiring property in the first instance.
46
Alternatively, the tenants in No. 77-1463 contend that the particular disposition HUD planned for Sky Tower, pursuant to the Property Disposition Handbook, qualified them under the written order clause. After studying several options, HUD decided to demolish Sky Tower and sell the land to private developers who would build single-family homes, all in accordance with the District of Columbia government's master plan for improving the neighborhood. By its own admission in proceedings before the District Court, HUD proposed the demolition to "eliminate blight" in conformity with a plan to revitalize the area. 396 F.Supp. 1235, 1236 (DC 1975). These events convinced the Court of Appeals that the Sky Tower tenants had been ordered to vacate for a "program or project" within the meaning of § 101(6). 187 U.S.App.D.C., at 161, 571 F.2d, at 595.
47
The difficulty with this analysis is that even though HUD's demolition plan is the type of program or project to which § 101(6) refers, HUD did not acquire Sky Tower for that purpose. The statute requires more than a causal connection between the order to vacate and the demolition program, which was all the Court of Appeals considered necessary. As explained in Part II, supra, the program or project must also be the reason for acquiring the property. Yet the tenants have never contended that HUD initially acquired Sky Tower in order to eliminate blight or to further the District of Columbia government's master plan, nor did the Court of Appeals or the District Court reach such a conclusion. Without the requisite relationship between the demolition program and the acquisition, HUD's proposal for disposing of Sky Tower is no different than any other property management plan, insufficient by itself to confer eligibility under § 101(6) of the Relocation Act.
48
We recognize, of course, that an agency's intent in acquiring property appears irrelevant to those displaced by federal order. From a tenant's perspective, the costs of dislocation are the same regardless of whether an agency anticipated causing displacements when it acquired property. Nonetheless, Congress chose to condition eligibility for relocation benefits on the agency's purpose in acquiring property, and our function is not to rewrite the statute. The increasing number of default acquisitions by Government agencies may well prompt Congress to expand the Relocation Act's coverage.46 But until Congress does so, the tenants in these cases are ineligible for relocation assistance under that Act.
49
Accordingly, the judgment of the Court of Appeals in No. 77-1463 is reversed and the judgment in No. 77-874 is affirmed.
50
It is so ordered.
1
Section 101(6) provides in its entirety:
"The term 'displaced person' means any person who, on or after the effective date of this Act, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; and solely for the purposes of sections 202(a) and (b) and 205 of this title, as a result of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property, on which such person conducts a business or farm operation, for such program or project." 84 Stat. 1894, 42 U.S.C. § 4601(6).
Section 101(5) of the Act defines a "person" to mean "any individual, partnership, corporation, or association." 84 Stat. 1894, 42 U.S.C. § 4601(5).
The definition of a "displaced person" governs basic eligibility for the several types of assistance available under the Relocation Act. Section 202 of the Act provides reimbursement for reasonable moving expenses, direct losses that result from moving or discontinuing a business or farm operation, and expenses incurred in searching for a replacement business or farm. In lieu of reimbursement for actual expenses, § 202 authorizes payment of a fixed sum to eligible persons, here a $300 moving expense allowance and a $200 dislocation allowance. 84 Stat. 1895, 42 U.S.C. § 4622; see 24 CFR §§ 42.65-42.80 (1978); infra, at 60. Sections 203 and 204 permit replacement housing payments of up to $15,000 for homeowners and $4,000 for tenants, provided certain need and occupancy requirements are satisfied. 84 Stat. 1896, 1897, 42 U.S.C. §§ 4623, 4624; see 24 CFR §§ 42.90, 42.95 (1978); infra, at 61. Finally § 205 requires agencies to establish a program of relocation assistance advisory services for displaced persons. 84 Stat. 1897, 42 U.S.C. § 4625; see 24 CFR §§ 42.100-42.125 (1978); infra, at 60.
2
555 F.2d 166 (CA7 1977); 187 U.S.App.D.C. 156, 571 F.2d 590 (1977). See also Blount v. Harris, 593 F.2d 336 (CA8 1979); Burns v. United States, Civ. No. 4-76-237 (D.C.Minn., July 11, 1978). See generally Harris v. Lynn, 555 F.2d 1357, 1359-1360 (CA8), (aff'g 411 F.Supp. 692 (E.D.Mo. 1976)), cert. denied, 434 U.S. 927, 98 S.Ct. 410, 54 L.Ed.2d 286 (1977); Caramico v. Secretary, Dept. of HUD, 509 F.2d 694, 697-699 (CA2 1974).
3
It now appears that a private party contracted in July 1977 to purchase Riverhouse Towers Apartments from HUD and that the sale has since been consummated. Brief for Petitioners in No. 77-874, pp. 37-38 (letter from Department of HUD, Office of General Counsel, to Mr. Richard L. Zweig).
4
The tenants sought judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., of HUD's refusal to provide relocation assistance. Jurisdiction was predicated on 28 U.S.C. §§ 1337, 1346.
5
In addition to their Relocation Act claims, several tenants alleged in the complaint that HUD should not have applied their security deposits to offset rent deficiencies. The tenants contended that HUD had breached an implied warranty of habitability for the relevant period, thereby relieving them of any obligation to pay rent. Deciding the issue under federal law, the District Court held that no such warranty could be implied in the tenants' leases. The Court of Appeals affirmed. 555 F.2d, at 170-171. The tenants have not challenged this aspect of the Court of Appeals' decision, and we therefore do not consider the issue.
6
Although HUD did provide minimal reimbursement for moving expenses, it made these $300 payments, on an emergency basis "under the general authority of the Housing Act," and not pursuant to any provision of the Relocation Act. Tr. of Oral Arg. 30.
7
The preliminary injunction barred HUD from completing the demolition or the evictions, required the agency to rehabilitate certain buildings, and allowed the evicted tenants to return at the Department's expense. Cole v. Lynn, 389 F.Supp. 99 (D.C.1975); Cole v. Hills, 396 F.Supp. 1235 (D.C.1975). While the benefits issue was pending on appeal pursuant to Fed.Rule Civ.Proc. 54(b), the parties agreed that the District Court should remand the remaining issues to HUD, so the agency could reconsider the proper disposition of Sky Tower. On remand, the agency abandoned the demolition plan and arranged to transfer ownership of the housing complex to the District of Columbia government, with HUD continuing to provide substantial rent subsidies. 187 U.S.App.D.C., at 160 n. 17, 571 F.2d, at 594 n. 17.
8
After we granted certiorari in these cases, Congress enacted the Housing and Community Development Amendments of 1978, Pub.L. 95-557, 92 Stat. 2080. That legislation directs HUD to re-examine its property management and disposition program, see § 203, 92 Stat. 2088, 12 U.S.C. § 1701z-11 (1976 ed., Supp. II); § 902, 92 Stat. 2125, and to ensure that tenants displaced from property owned by HUD will receive any relocation assistance available under other statutory provisions, § 203(d). However, these provisions do not affect the Relocation Act's definition of a "displaced person." See H.R.Conf.Rep.No.95-1792, pp. 67-71, 99-100 (1978); U.S.Code Cong. & Admin.News 1978, p. 6539.
9
In its entirety, this phrase encompasses any "program or project undertaken by a Federal agency, or with Federal financial assistance." § 101(6), 42 U.S.C. § 4601(6). Lower federal courts have interpreted the latter part of this phrase to include only federally assisted "programs or projects" undertaken by agencies of state and local governments, as opposed to private parties. See Moorer v. Dept. of HUD, 561 F.2d 175 (CA8 1977), cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978); Dawson v. U. S. Dept. of HUD, 428 F.Supp. 328 (N.D.Ga.1976); Parlane Sportswear Co. v. Weinberger, 381 F.Supp. 410 (Mass.1974), aff'd, 513 F.2d 835, 837 (CA1), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975). Although the present cases do require us to consider what types of "programs or projects" Congress intended to cover, infra, at 63-67, we need not determine whether § 101(6) applies when private parties undertake such a program and acquire property, since the tenants here have claimed that the program of a federal agency caused their displacement. Similarly, these cases do not require us to construe the provisions applicable when a state or local agency acquires property for use in a covered program or project. See 42 U.S.C. §§ 4627-4633, 4635.
10
See, e. g., Tennessee Valley Authority Act of 1933, ch. 32, 48 Stat. 58, as amended, 49 Stat. 1080; Act to Authorize Certain Construction of Military and Naval Installations, Pub.L. 82-155, § 501(b), 65 Stat. 364; Act of May 29, 1958, Pub.L. No. 85-433, 72 Stat. 152, 43 U.S.C. § 1231 (1964 ed.), repealed by uncodified § 220(a)(1) of the Relocation Act, 84 Stat. 1903.
11
Select Subcommittee on Real Property Acquisition of the House Committee on Public Works, Study of Compensation and Assistance for Persons Affected by Real Property Acquisition in Federal and Federally Assisted Programs, 88th Cong., 2d Sess., 145-167 (Comm.Print 1965) (hereinafter Select Subcommittee Study).
12
See id., at 93-104, 194-207. The sole exception to this pattern was contained in § 310 of the Housing Act of 1964, 78 Stat. 788, 42 U.S.C. § 1465 (1970 ed.), repealed by uncodified § 220(a)(5) of the Relocation Act, 84 Stat. 1903. Section 310 extended benefits to persons displaced from urban renewal areas by code enforcement activities and by programs of voluntary rehabilitation in accordance with an urban renewal plan. Congress treated this provision as an exception to the general rule when it drafted the Fair Compensation Act and the successor bills. See infra, at 61-62, and nn. 20, 40.
13
See infra, at 53, and n. 20.
14
The tenants contend that Congress legislated against a broader background and therefore must have intended the Fair Compensation Act and the Relocation Act to apply outside the acquisition context. For support, they rely on § 123 of the Housing Act of 1954, 68 Stat. 596, 599-600, as amended, 12 U.S.C. §§ 1715k, 1715l, which facilitated the relocation of displaced individuals yet did not depend on the acquisition of property for a federal project. However, § 123 was not in any sense a relocation benefit statute, but rather an aspect of the mortgage insurance program designed to encourage the development of housing for families displaced by governmental action. See 68 Stat. 599. Section 123 therefore was merely tangential to Congress' immediate goal of revising legislation that directly assisted dislocated persons. Accordingly, the proposed Fair Compensation Act did not include § 123 among the provisions to be repealed upon adoption of the replacement legislation. See Select Subcommittee Study 159.
15
See S. 1201, 89th Cong., 1st Sess., § 2 (1965); S. 1681, 89th Cong., 1st Sess., § 2 (1965); S.Rep.No.1378, 89th Cong., 2d Sess., 1 (1966); S. 698, 90th Cong., 1st Sess., § 801 (1967) (as introduced); S. 698, 90th Cong., 2d Sess., § 701 (1968) (as reported by Committee); S.Rep.No.1456, 90th Cong., 2d Sess., 11, 24 (1968). Congress' failure to enact comprehensive relocation legislation until 1970 was due not to any dispute over the purpose of the bills, but rather to the inability of both Houses to complete action before the end of the earlier legislative sessions. See S.Rep.No.91-488, pp. 4-7 (1969); 116 Cong.Rec. 40168 (1970) (Rep. Fallon).
16
See also the Senate Committee's description of the purpose for this legislation, S.Rep.No.91-488, pp. 10, 13 (1969), and the discussion of this bill on the Senate floor. 115 Cong.Rec. 31370-31376, 31533-31535 (1969).
17
Section 201 declares:
"The purpose of this title is to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole." 84 Stat. 1895, 42 U.S.C. § 4621.
18
See n. 15, supra.
19
See H.R.Rep.No.91-1656 (1970); 116 Cong.Rec. 40163-40172 (1970) (House debate); id., at 42139 (Senate acceptance of House modifications); id., at 42506-42507 (final House approval).
20
Sections 107 and 108 of the Fair Compensation Act, Select Subcommittee Study 151-152. In addition to these operative sections of the proposed Act, the special benefits provision contained in § 113 of the Act reflected the limited scope of the term "displaced person." Section 310 of the Housing Act of 1964 provided relocation assistance in a few situations not involving governmental property acquisitions. See n. 12, supra. In recognition that beneficiaries of this program would not be "displaced persons" under the Fair Compensation Act, the Select Subcommittee included a special provision to preserve this program when the existing relocation legislation was repealed. The special benefits provision, § 113 of the proposed Act, directed that persons who move "as the direct result of code enforcement activities undertaken in connection with an urban renewal project, or a program of voluntary rehabilitation of buildings or other improvements in accordance with an urban renewal plan" shall be deemed "displaced person[s]." Select Subcommittee Study 157.
That similar provisions were included in subsequent Senate bills demonstrates that Congress intentionally restricted the definition of a "displaced person" to application in the property acquisition context. See S. 1201, 89th Cong., 1st Sess., § 113 (1965); S. 1681, 89th Cong., 1st Sess., § 10 (1965); S.Rep.No.1378, 89th Cong., 2d Sess., 8, 32-33 (1966); S. 698, 90th Cong., 1st Sess., § 808 (1967); S.Rep.No.1456, 90th Cong., 2d Sess., 32 (1968); S. 1, 91st Cong., 1st Sess., § 232 (1969); n. 40, infra. This provision was ultimately enacted as § 217 of the Relocation Act, 84 Stat. 1902, 42 U.S.C. § 4637. See infra, at 61-62.
21
S. 1681, 89th Cong., 1st Sess., § 12(2) (1965); see also S. 1201, 89th Cong., 1st Sess., § 115(2) (1965).
22
Hearings on S. 1201 and S. 1681 before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 89th Cong., 1st Sess., 55, 90 (1965).
23
S. 1681, 89th Cong., 1st Sess., § 11(b) (July 20, 1966). The Senate Committee substituted this language as well in the bill's definition of "displaced," since the Senate bill and its successors also employed this term to impose the same eligibility requirements as the definition of a "displaced person." See id., § 11(m); n. 31, infra.
24
See, e. g., S.Rep.No.1378, 89th Cong., 2d Sess., 1 (1966) ("The purpose of S. 1681, as amended, is to establish a uniform policy for the fair and equitable treatment of owners, tenants, and other persons displaced by the acquisition of real property for Federal and federally assisted programs").
25
Id., at 1, 9, 10-11, 17, 26, 30; 112 Cong.Rec. 16733, 16735, 16737-16740 (1966).
26
S. 698, 90th Cong., 1st Sess., § 113 (1967) (as introduced); id., § 112 (as reported by Committee). See also n. 29, infra.
27
S.Rep.No.91-488 (1969); 115 Cong.Rec. 31370-31376, 31533-31535 (1969).
28
H.R.Rep. No. 91-1656, pp. 4-5 (1970); S. 1, 91st Cong., 2d Sess., § 101(6) (Dec. 2, 1970).
29
Uniform Relocation Assistance and Land Acquisitions Policies—1970: Hearings on H.R. 14898, H.R. 14899, S. 1 and Related Bills before the House Committee on Public Works, 91st Cong., 1st and 2d Sess., 137, 281, 416, 595-596, 1028 (1969-1970) (hereinafter 1970 House Hearings). Some witnesses suggested that S. 1 be amended by adding a "subsequent acquisition" requirement to the definition of a displaced person. 1970 House Hearings, at 137, 281-282, 416. The subsequent acquisition language would have precluded awarding any relocation assistance when an agency failed to consummate an acquisition, no matter how reasonable the expectation of acquisition had been. This suggestion was based on the definition used in H.R. 14898, 91st Cong., 1st Sess. (1969), a companion relocation proposal, which in turn was derived from the Highway Relocation Assistance provisions of the Federal-Aid Highway Act of 1968, § 30, 82 Stat. 830, repealed by uncodified § 220(a)(10) of the Relocation Act, 84 Stat. 1903.
30
The Department of Transportation's representative testified:
"We think some limitation [on the expectation of acquisition] is desirable. Relocation payments should be limited to persons actually displaced or who move due to some official act of the public authorities such as a notice of condemnation." 1970 House Hearings 596.
The representative from HUD agreed, recommending that:
"Relocation payments should not be made to those who move on the basis of speculation regarding the intent to take their property. We favor a provision limiting reimbursement to persons [who move] after some official act which clearly threatens displacement even though the property is never subsequently acquired." Id., at 1027-1028.
Both representatives referred the House Committee to their own agencies' relocation regulations, which based eligibility for benefits on the occurrence of an "official act" before the actual acquisition. Id., at 1007, 1069.
31
S. 1, 91st Cong., 2d Sess., § 101(6) (Dec. 2, 1970), enacted as 42 U.S.C. § 4601(6). The House Committee also consolidated all of S. 1's subcategories of "displaced persons" into one provision, § 101(6), along with the definition of "displaced." This consolidation did not affect language pertinent to the issues raised here.
32
Several witnesses remarked that the unamended definition of a displaced person would exclude those dislocated by activities other than property acquisitions. 1970 House Hearings 234, 241, 252-253, 270, 350-351, 360. Many of these comments were directed in particular toward H.R. 14898, which did not contain a provision continuing the availability of benefits for persons displaced by code enforcement activities and rehabilitation in urban renewal projects. See n. 12, supra. A few witnesses recommended that the House Committee rectify the omission by adding a provision similar to that contained in the Fair Compensation Act, see n. 20, supra, or the S. 1 provision that later became § 217 of the Relocation Act. 1970 House Hearings 234, 241, 252-253, 270. Other witnesses proposed a more general expansion to cover persons displaced in the absence of an acquisition. Id., at 350-351, 360. All of these witnesses, however, agreed that given the language used to define a displaced person, an additional provision was needed to accomplish these extensions.
33
This principle is especially applicable here, since witnesses had advocated such a wide range of adjustments in coverage. One group urged that coverage not be available unless property was actually acquired, see n. 29, supra, while another group requested the Committee to authorize relocation benefits generally outside the acquisition context. See n. 32, supra. The lack of any evidence that the Committee intended to accept either suggestion strongly indicates that the written order clause was designed solely to eliminate the vagueness inherent in the prior definition.
34
The tenants contend that the written order clause cannot in fact serve the purpose urged by HUD, because only an agency that already has acquired property is empowered to "order" persons to move from the property. This argument attributes too much significance to the word "order." As shown by the passage quoted in text, the Committee generally referred to a "notice to vacate." The Committee's description of the clause, as well as its origin, demonstrates that a "written order" includes any official notice to vacate, whether issued before or after the acquisition is completed. See also S.Rep.No.1378, 89th Cong., 2d Sess., 9 (1966).
35
That Members of the House did not consider the new written order clause a significant departure from previous proposals is evident from their specific characterizations of the bill during the brief House debate as legislation designed to provide benefits when persons are displaced by the acquisition of property for public programs. See 116 Cong.Rec. 40167 (1970) (Rep. Edmondson); id., at 40169 (Rep. Cleveland); id., at 40170 (Rep. Johnson); id., at 40171 (Rep. Brotzman); id., at 40171-40172 (Rep. Annunzio). See also id., at 42506 (Rep. Edmondson); id., at 42507 (Rep. Hall).
36
In contrast, §§ 202 and 205 do function properly if the written order clause is given the construction compelled by its legislative history. When tenants vacate upon notice that an agency will acquire real property, "the acquisition of real property . . . will result in [their] displacement," for purposes of §§ 202 and 205, regardless of whether the agency completes its plans.
37
Section 204 refers to "such dwelling" instead of "the property." 42 U.S.C. § 4624. The length-of-prior-occupancy requirement is 180 days for displaced homeowners and 90 days for displaced tenants. §§ 4623(a)(1), 4624.
38
See S.Rep.No.91-488, pp. 10-12 (1969); H.R.Rep.No.91-1656, pp. 8-12 (1970).
39
See nn. 12 and 20, supra.
40
See H.R.Rep.No.91-1656, p. 20 (1970); U.S.Code Cong. & Admin.News 1970, p. 5869 (This section "makes such a person eligible for the full range of relocation benefits provided for displaced persons"); S.Rep.No.91-488, p. 15 (1969).
41
Section 101(6) does not, however, require that an agency anticipate obtaining title to the property. The legislative history demonstrates that Congress focused on the eventual right to use property, not on an agency's mode of procurement. For example, in explaining that benefits would be available for persons displaced by the Post Office Department's frequent practice of using options and leasebacks in lieu of directly purchasing property for its facilities, the House Committee stated:
"It makes no difference to a person required to move because of the development of a postal facility which method the postal authorities use to obtain the facility, or who acquires the site or holds the fee title to the property. Since the end product is the same, a facility which serves the public and is regarded by the public as a public building, any person so required to move is a displaced person entitled to the benefits of this legislation." H.R.Rep.No.91-1656, p. 5 (1970); U.S.Code Cong. & Admin.News 1970, p. 5854.
42
This, of course, is not to suggest that § 101(6) would be inapplicable if an agency acquired property for one program, expecting to displace persons, and then ultimately issued orders to vacate for a different program or project. But Congress' intent to provide relocation benefits for persons displaced in that manner does not assist the tenants here, because their eligibility depends primarily on whether HUD acquired Sky Tower and Riverhouse Apartments "for" a federal program or project in the first instance.
43
The parties have disputed whether HUD voluntarily acquired the properties here, and whether an involuntary acquisition can ever satisfy § 101(6). But to focus on voluntariness oversimplifies application of the statute. Section 101(6) applies whenever an agency intends to obtain property for use in a federal program, and voluntariness is relevant only to the extent it is probative of the agency's overall purpose in procuring property.
44
Committee Reports and earlier versions of this bill elaborated on this language, by referring to an acquisition "for a public improvement constructed or developed by or with funds provided in whole or in part by the Federal Government." S.Rep.No.91-488, p. 9 (1969); accord, S. 1, 91st Cong., 1st Sess., § 110 (1969) (as introduced and reported by Committee).
45
The mortgage insurance programs were intended to facilitate "realization as soon as feasible of the goal of a decent home and a suitable living environment for every American family." 42 U.S.C. §§ 1441, 1441a; accord, 12 U.S.C. § 1701t.
46
See Hearings on Distressed HUD-Subsidized Multifamily Housing Projects before the Senate Committee on Banking, Housing, and Urban Affairs, 95th Cong., 1st Sess., 134-135, 250-253 (1977) (statement of Lawrence B. Simons, Assistant Secretary of HUD).
| 12
|
441 U.S. 1
99 S.Ct. 1551
60 L.Ed.2d 1
BROADCAST MUSIC, INC., et al., Petitioners,v.COLUMBIA BROADCASTING SYSTEM, INC., et al. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, et al., Petitioners, v. COLUMBIA BROADCASTING SYSTEM, INC., et al.
Nos. 77-1578, 77-1583.
Argued Jan. 15, 1979.
Decided April 17, 1979.
Syllabus
Respondent Columbia Broadcasting System, Inc. (CBS), brought this action against petitioners, American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), and their members and affiliates, alleging, inter alia, that the issuance by ASCAP and BMI to CBS of blanket licenses to copyrighted musical compositions at fees negotiated by them is illegal price fixing under the antitrust laws. Blanket licenses give the licensees the right to perform any and all of the compositions owned by the members or affiliates as often as the licensees desire for a stated term. Fees for blanket licenses are ordinarily a percentage of total revenues or a flat dollar amount, and do not directly depend on the amount or type of music used. After a trial limited to the issue of liability, the District Court dismissed the complaint, holding, inter alia, that the blanket license was not price fixing and a per se violation of the Sherman Act. The Court of Appeals reversed and remanded for consideration of the appropriate remedy, holding that the blanket license issued to television networks was a form of price fixing illegal per se under the Sherman Act and established copyright misuse. Held: The issuance by ASCAP and BMI of blanket licenses does not constitute price fixing per se unlawful under the antitrust laws. Pp. 7-25.
(a) "It is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act." United States v. Topco Associates, Inc., 405 U.S. 596, 607-608, 92 S.Ct. 1126, 1133-1134, 31 L.Ed.2d 515. And though there has been rather intensive antitrust scrutiny of ASCAP and BMI and their blanket licenses, that experience hardly counsels that this Court should outlaw the blanket license as a per se restraint of trade. Furthermore, the United States, by its amicus brief in the present case, urges that the blanket licenses, which consent decrees in earlier actions by the Government authorize ASCAP and BMI to issue to television networks, are not per se violations of the Sherman Act. And Congress, in the Copyright Act of 1976, has itself chosen to employ the blanket license and similar practices. Thus, there is no nearly universal view that the blanket licenses are a form of price fixing subject to automatic condemnation under the Sherman Act, rather than to a careful assessment under the rule of reason generally applied in Sherman Act cases. Pp. 7-16.
(b) In characterizing the conduct of issuing blanket licenses under the per se rule, this Court's inquiry must focus on whether the effect and, here because it tends to show effect, the purpose of the practice are to threaten the proper operation of a predominantly free-market economy. The blanket license is not a "naked restrain[t] of trade with no purpose except stifling of competition," White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 702, 9 L.Ed.2d 738, but rather accompanies the integration of sales, monitoring, and enforcement against unauthorized copyright use, which would be difficult and expensive problems if left to individual users and copyright owners. Although the blanket license fee is set by ASCAP and BMI rather than by competition among individual copyright owners, and although it is a fee for the use of any of the compositions covered by the license, the license cannot be wholly equated with a simple horizontal arrangement among competitors and is quite different from anything any individual owner could issue. In light of the background, which plainly indicates that over the years, and in the face of available alternatives including direct negotiation with individual copyright owners, the blanket license has provided an acceptable mechanism for at least a large part of the market for the performing rights to copyrighted musical compositions, it cannot automatically be declared illegal in all of its many manifestations. Rather, it should be subjected to a more discriminating examination under the rule of reason. Pp. 16-24. (c) The Court of Appeals' judgment holding that the licensing practices of ASCAP and BMI are per se violations of the Sherman Act, and the copyright misuse judgment dependent thereon, are reversed, and the case is remanded for further proceedings to consider any unresolved issues that CBS may have properly brought to the Court of Appeals, including an assessment under the rule of reason of the blanket license as employed in the television industry. Pp. 24-25.
2 Cir., 562 F.2d 130, reversed and remanded.
Jay H. Topkis, New York City, for petitioners in No. 77-1583.
Amalya L. Kearse, New York City, for petitioners in No. 77-1578.
Frank H. Easterbrook, Washington, D. C., for the United States, as amicus curiae, by special leave of Court.
Alan J. Hruska, New York City, for respondents in both cases.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case involves an action under the antitrust and copyright laws brought by respondent Columbia Broadcasting System, Inc. (CBS), against petitioners, American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), and their members and affiliates.1 The basic question presented is whether the issuance by ASCAP and BMI to CBS of blanket licenses to copyrighted musical compositions at fees negotiated by them is price fixing per se unlawful under the antitrust laws.
2
* CBS operates one of three national commercial television networks, supplying programs to approximately 200 affiliated stations and telecasting approximately 7,500 network programs per year. Many, but not all, of these programs make use of copyrighted music recorded on the soundtrack. CBS also owns television and radio stations in various cities. It is " 'the giant of the world in the use of music rights,' " the " 'No. 1 outlet in the history of entertainment.' "2
3
Since 1897, the copyright laws have vested in the owner of a copyrighted musical composition the exclusive right to perform the work publicly for profit,3 but the legal right is not self-enforcing. In 1914, Victor Herbert and a handful of other composers organized ASCAP because those who per formed copyrighted music for profit were so numerous and widespread, and most performances so fleeting, that as a practical matter it was impossible for the many individual copyright owners to negotiate with and license the users and to detect unauthorized uses. "ASCAP was organized as a 'clearing-house' for copyright owners and users to solve these problems" associated with the licensing of music. 400 F.Supp. 737, 741 (S.D.N.Y.1975). As ASCAP operates today, its 22,000 members grant it nonexclusive rights to license nondramatic performances of their works, and ASCAP issues licenses and distributes royalties to copyright owners in accordance with a schedule reflecting the nature and amount of the use of their music and other factors.
4
BMI, a nonprofit corporation owned by members of the broadcasting industry,4 was organized in 1939, is affiliated with or represents some 10,000 publishing companies and 20,000 authors and composers, and operates in much the same manner as ASCAP. Almost every domestic copyrighted composition is in the repertory either of ASCAP, with a total of three million compositions, or of BMI, with one million.
5
Both organizations operate primarily through blanket licenses, which give the licensees the right to perform any and all of the compositions owned by the members or affiliates as often as the licensees desire for a stated term. Fees for blanket licenses are ordinarily a percentage of total revenues or a flat dollar amount, and do not directly depend on the amount or type of music used. Radio and television broadcasters are the largest users of music, and almost all of them hold blanket licenses from both ASCAP and BMI. Until this litigation, CBS held blanket licenses from both organizations for its television network on a continuous basis since the late 1940's and had never attempted to secure any other form of license from either ASCAP5 or any of its members. Id., at 752-754.
6
The complaint filed by CBS charged various violations of the Sherman Act6 and the copyright laws.7 CBS argued that ASCAP and BMI are unlawful monopolies and that the blanket license is illegal price fixing, an unlawful tying arrangement, a concerted refusal to deal, and a misuse of copyrights. The District Court, though denying summary judgment to certain defendants, ruled that the practice did not fall within the per se rule. 337 F.Supp. 394, 398 (S.D.N.Y.1972). After an 8-week trial, limited to the issue of liability, the court dismissed the complaint, rejecting again the claim that the blanket license was price fixing and a per se violation of § 1 of the Sherman Act, and holding that since direct negotiation with individual copyright owners is available and feasible there is no undue restraint of trade, illegal tying, misuse of copyrights, or monopolization. 400 F.Supp., at 781-783.
7
Though agreeing with the District Court's factfinding and not disturbing its legal conclusions on the other antitrust theories of liability,8 the Court of Appeals held that the blanket license issued to television networks was a form of price fixing illegal per se under the Sherman Act. 562 F.2d 130, 140 (CA2 1977). This conclusion, without more, settled the issue of liability under the Sherman Act, established copyright misuse,9 and required reversal of the District Court's judgment, as well as a remand to consider the appropriate remedy.10
8
ASCAP and BMI petitioned for certiorari, presenting the questions of the applicability of the per se rule and of whether this constitutes misuse of copyrights. CBS did not cross petition to challenge the failure to sustain its other antitrust claims. We granted certiorari because of the importance of the issues to the antitrust and copyright laws. 439 U.S. 817, 99 S.Ct. 77, 58 L.Ed.2d 107 (1978). Because we disagree with the Court of Appeals' conclusions with respect to the per se illegality of the blanket license, we reverse its judgment and remand the cause for further appropriate proceedings.
II
9
In construing and applying the Sherman Act's ban against contracts, conspiracies, and combinations in restraint of trade, the Court has held that certain agreements or practices are so "plainly anticompetitive," National Society of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978); Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 50, 97 S.Ct. 2549, 2558, 53 L.Ed.2d 568 (1977), and so often "lack . . . any redeeming virtue," Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), that they are conclusively presumed illegal without further examination under the rule of reason generally applied in Sherman Act cases. This pro se rule is a valid and useful tool of antitrust policy and enforcement.11 And agreements among competitors to fix prices on their individual goods or services are among those concerted activities that the Court has held to be within the per se category.12 But easy labels do not always supply ready answers.
10
To the Court of Appeals and CBS, the blanket license involves "price fixing" in the literal sense: the composers and publishing houses have joined together into an organization that sets its price for the blanket license it sells.13 But this is not a question simply of determining whether two or more potential competitors have literally "fixed" a "price." As generally used in the antitrust field, "price fixing" is a shorthand way of describing certain categories of business behavior to which the per se rule has been held applicable. The Court of Appeals' literal approach does not alone establish that this particular practice is one of those types or that it is "plainly anticompetitive" and very likely without "redeeming virtue." Literalness is overly simplistic and often overbroad. When two partners set the price of their goods or services they are literally "price fixing," but they are not per se in violation of the Sherman Act. See United States v. Addyston Pipe & Steel Co., 85 F. 271, 280 (CA6 1898), aff'd, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899). Thus, it is necessary to characterize the challenged conduct as falling within or without that category of behavior to which we apply the label "per se price fixing." That will often, but not always, be a simple matter.14
11
Consequently, as we recognized in United States v. Topco Associates, Inc., 405 U.S. 596, 607-608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972), "[i]t is only after considerable experience with certain business relationships that courts classify them as per se violations . . . ." See White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 702, 9 L.Ed.2d 738 (1963). We have never examined a practice like this one before; indeed, the Court of Appeals recognized that "[i]n dealing with performing rights in the music industry we confront conditions both in copyright law and in antitrust law which are sui generis." 562 F.2d, at 132. And though there has been rather intensive antitrust scrutiny of ASCAP and its blanket licenses, that experience hardly counsels that we should outlaw the blanket license as a per se restraint of trade.
B
12
This litigation and other cases involving ASCAP and its licensing practices have arisen out of the efforts of the creators of copyrighted musical compositions to collect for the public performance of their works, as they are entitled to do under the Copyright Act. As already indicated, ASCAP and BMI originated to make possible and to facilitate dealings between copyright owners and those who desire to use their music. Both organizations plainly involve concerted action in a large and active line of commerce, and it is not surprising that, as the District Court found, "[n]either ASCAP nor BMI is a stranger to antitrust litigation." 400 F.Supp., at 743.
13
The Department of Justice first investigated allegations of anticompetitive conduct by ASCAP over 50 years ago.15 A criminal complaint was filed in 1934, but the Government was granted a midtrial continuance and never returned to the courtroom. In separate complaints in 1941, the United States charged that the blanket license, which was then the only license offered by ASCAP and BMI, was an illegal restraint of trade and that arbitrary prices were being charged as the result of an illegal copyright pool.16 The Government sought to enjoin ASCAP's exclusive licensing powers and to require a different form of licensing by that organization. The case was settled by a consent decree that imposed tight restrictions on ASCAP's operations.17 Following complaints relating to the television industry, successful private litigation against ASCAP by movie theaters,18 and a Government challenge to ASCAP's arrangements with similar foreign organizations, the 1941 decree was reopened and extensively amended in 1950.19
14
Under the amended decree, which still substantially controls the activities of ASCAP, members may grant ASCAP only nonexclusive rights to license their works for public performance. Members, therefore, retain the rights individually to license public performances, along with the rights to license the use of their compositions for other purposes. ASCAP itself is forbidden to grant any license to perform one or more specified compositions in the ASCAP repertory unless both the user and the owner have requested it in writing to do so. ASCAP is required to grant to any user making written application a nonexclusive license to perform all ASCAP compositions either for a period of time or on a per-program basis. ASCAP may not insist on the blanket license, and the fee for the per-program license, which is to be based on the revenues for the program on which ASCAP music is played, must offer the applicant a genuine economic choice between the per-program license and the more common blanket license. If ASCAP and a putative licensee are unable to agree on a fee within 60 days, the applicant may apply to the District Court for a determination of a reasonable fee, with ASCAP having the burden of proving reasonableness.20
15
The 1950 decree, as amended from time to time, continues in effect, and the blanket license continues to be the primary instrument through which ASCAP conducts its business under the decree. The courts have twice construed the decree not to require ASCAP to issue licenses for selected portions of its repertory.21 It also remains true that the decree guarantees the legal availability of direct licensing of performance rights by ASCAP members; and the District Court found, and in this respect the Court of Appeals agreed, that there are no practical impediments preventing direct dealing by the television networks if they so desire. Historically, they have not done so. Since 1946, CBS and other television networks have taken blanket licenses from ASCAP and BMI. It was not until this suit arose that the CBS network demanded any other kind of license.22
16
Of course, a consent judgment, even one entered at the behest of the Antitrust Division, does not immunize the defendant from liability for actions, including those contemplated by the decree, that violate the rights of nonparties. See Sam Fox Publishing Co. v. United States, 366 U.S. 683, 690, 81 S.Ct. 1309, 1313, 6 L.Ed.2d 604 (1961), which involved this same decree. But it cannot be ignored that the Federal Executive and Judiciary have carefully scrutinized ASCAP and the challenged conduct, have imposed restrictions on various of ASCAP's practices, and, by the terms of the decree, stand ready to provide further consideration, supervision, and perhaps invalidation of asserted anticompetitive practices.23 In these circumstances, we have a unique indicator that the challenged practice may have redeeming competitive virtues and that the search for those values is not almost sure to be in vain.24 Thus, although CBS is not bound by the Antitrust Division's actions, the decree is a fact of economic and legal life in this industry, and the Court of Appeals should not have ignored it completely in analyzing the practice. See id., at 694-695, 81 S.Ct., at 1315-1316. That fact alone might not remove a naked price-fixing scheme from the ambit of the per se rule, but, as discussed infra, Part III, here we are uncertain whether the practice on its face has the effect, or could have been spurred by the purpose, of restraining competition among the individual composers.
17
After the consent decrees, the legality of the blanket license was challenged in suits brought by certain ASCAP members against individual radio stations for copyright infringement. The stations raised as a defense that the blanket license was a form of price fixing illegal under the Sherman Act. The parties stipulated that it would be nearly impossible for each radio station to negotiate with each copyright holder separate licenses for the performance of his works on radio. Against this background, and relying heavily on the 1950 consent judgment, the Court of Appeals for the Ninth Circuit rejected claims that ASCAP was a combination in restraint of trade and that the blanket license constituted illegal price fixing. K-91, Inc. v. Gershwin Publishing Corp., 372 F.2d 1 (1967), cert. denied, 389 U.S. 1045, 88 S.Ct. 761, 19 L.Ed.2d 838 (1968).
18
The Department of Justice, with the principal responsibility for enforcing the Sherman Act and administering the consent decrees relevant to this case, agreed with the result reached by the Ninth Circuit. In a submission amicus curiae opposing one station's petition for certiorari in this Court, the Department stated that there must be "some kind of central licensing agency by which copyright holders may offer their works in a common pool to all who wish to use them." Memorandum for United States as Amicus Curiae on Pet. for Cert. in K-91, Inc. v. Gershwin Publishing Corp., O.T. 1967, No. 147, pp. 10-11. And the Department elaborated on what it thought that fact meant for the proper application of the antitrust laws in this area:
19
"The Sherman Act has always been discriminatingly applied in the light of economic realities. There are situations in which competitors have been permitted to form joint selling agencies or other pooled activities, subject to strict limitations under the antitrust laws to guarantee against abuse of the collective power thus created. Associated Press v. United States, 326 U.S. 1 [65 S.Ct. 1416, 89 L.Ed. 2013]; United States v. St. Louis Terminal, 224 U.S. 383 [32 S.Ct. 507, 56 L.Ed. 810]; Appalachian Coals, Inc. v. United States, 288 U.S. 344 [53 S.Ct. 471, 77 L.Ed. 825]; Chicago Board of Trade v. United States, 246 U.S. 231 [38 S.Ct. 242, 62 L.Ed. 683]. This case appears to us to involve such a situation. The extraordinary number of users spread across the land, the ease with which a performance may be broadcast, the sheer volume of copyrighted compositions, the enormous quantity of separate performances each year, the impracticability of negotiating individual licenses for each composition, and the ephemeral nature of each performance all combine to create unique market conditions for performance rights to recorded music." Id., at 10 (footnote omitted).
20
The Department concluded that, in the circumstances of that case, the blanket licenses issued by ASCAP to individual radio stations were neither a per se violation of the Sherman Act nor an unreasonable restraint of trade.
21
As evidenced by its amicus brief in the present case, the Department remains of that view. Furthermore, the United States disagrees with the Court of Appeals in this case and urges that the blanket licenses, which the consent decree authorizes ASCAP to issue to television networks, are not per se violations of the Sherman Act. It takes no position, however, on whether the practice is an unreasonable restraint of trade in the context of the network television industry.
22
Finally, we note that Congress itself, in the new Copyright Act, has chosen to employ the blanket license and similar practices. Congress created a compulsory blanket license for secondary transmissions by cable television systems and provided that "[n]otwithstanding any provisions of the antitrust laws, . . . any claimants may agree among themselves as to the proportionate division of compulsory licensing fees among them, may lump their claims together and file them jointly or as a single claim, or may designate a common agent to receive payment on their behalf." 17 U.S.C. App. § 111(d)(5)(A). And the newly created compulsory license for the use of copyrighted compositions in jukeboxes is also a blanket license, which is payable to the performing-rights societies such as ASCAP unless an individual copyright holder can prove his entitlement to a share. § 116(c)(4). Moreover, in requiring noncommercial broadcasters to pay for their use of copyrighted music, Congress again provided that "[n]otwithstanding any provision of the antitrust laws" copyright owners "may designate common agents to negotiate, agree to, pay, or receive payments." § 118(b). Though these provisions are not directly controlling, they do reflect an opinion that the blanket license, and ASCAP, are economically beneficial in at least some circumstances.
23
There have been District Court cases holding various ASCAP practices, including its licensing practices, to be violative of the Sherman Act,25 but even so, there is no nearly universal view that either the blanket or the per-program licenses issued by ASCAP at prices negotiated by it are a form of price fixing subject to automatic condemnation under the Sherman Act, rather than to a careful assessment under the rule of reason.
III
24
Of course, we are no more bound than is CBS by the views of the Department of Justice, the results in the prior lower court cases, or the opinions of various experts about the merits of the blanket license. But while we must independently examine this practice, all those factors should caution us against too easily finding blanket licensing subject to per se invalidation.
A.
25
As a preliminary matter, we are mindful that the Court of Appeals' holding would appear to be quite difficult to contain. If, as the court held, there is a per se antitrust violation whenever ASCAP issues a blanket license to a television network for a single fee, why would it not also be automatically illegal for ASCAP to negotiate and issue blanket licenses to individual radio or television stations or to other users who perform copyrighted music for profit?26 Likewise, if the present network licenses issued through ASCAP on behalf of its members are per se violations, why would it not be equally illegal for the members to authorize ASCAP to issue licenses establishing various categories of uses that a network might have for copyrighted music and setting a standard fee for each described use?
26
Although the Court of Appeals apparently thought the blanket license could be saved in some or even many applications, it seems to us that the per se rule does not accommodate itself to such flexibility and that the observations of the Court of Appeals with respect to remedy tend to impeach the per se basis for the holding of liability.27
27
CBS would prefer that ASCAP be authorized, indeed directed, to make all its compositions available at standard per-use rates within negotiated categories of use. 400 F.Supp., at 747 n. 7.28 But if this in itself or in conjunction with blanket licensing constitutes illegal price fixing by copyright owners, CBS urges that an injunction issue forbidding ASCAP to issue any blanket license or to negotiate any fee except on behalf of an individual member for the use of his own copyrighted work or works.29 Thus, we are called upon to determine that blanket licensing is unlawful across the board. We are quite sure, however, that the per se rule does not require any such holding.
B
28
In the first place, the line of commerce allegedly being restrained, the performing rights to copyrighted music, exists at all only because of the copyright laws. Those who would use copyrighted music in public performances must secure consent from the copyright owner or be liable at least for the statutory damages for each infringement and, if the conduct is willful and for the purpose of financial gain, to criminal penalties.30 Furthermore, nothing in the Copyright Act of 1976 indicates in the slightest that Congress intended to weaken the rights of copyright owners to control the public performance of musical compositions. Quite the contrary is true.31 Although the copyright laws confer no rights on copyright owners to fix prices among themselves or otherwise to violate the antitrust laws, we would not expect that any market arrangements reasonably necessary to effectuate the rights that are granted would be deemed a per se violation of the Sherman Act. Otherwise, the commerce anticipated by the Copyright Act and protected against restraint by the Sherman Act would not exist at all or would exist only as a pale reminder of what Congress envisioned.32
C
29
More generally, in characterizing this conduct under the per se rule,33 our inquiry must focus on whether the effect and, here because it tends to show effect, see United States v. United States Gypsum Co., 438 U.S. 422, 436 n. 13, 98 S.Ct. 2864, 2873 n. 13, 57 L.Ed.2d 854 (1978), the purpose of the practice are to threaten the proper operation of our predominantly free-market economy—that is, whether the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output, and in what portion of the market, or instead one designed to "increase economic efficiency and render markets more, rather than less, competitive." Id. at 441 n. 16, 98 S.Ct., at 2875 n. 16; see National Society of Professional Engineers v. United States, 435 U.S., at 688, 98 S.Ct., at 1363; Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S., at 50 n. 16, 97 S.Ct., at 2558 n. 16; Northern Pac. R. Co. v. United States, 356 U.S., at 4, 78 S.Ct., at 517.
30
The blanket license, as we see it, is not a "naked restrain[t] of trade with no purpose except stifling of competition," White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 702, 9 L.Ed.2d 738 (1963), but rather accompanies the integration of sales, monitoring, and enforcement against unauthorized copyright use. See L. Sullivan, Handbook of the Law of Antitrust § 59, p. 154 (1977). As we have already indicated, ASCAP and the blanket license developed together out of the practical situation in the marketplace: thousands of users, thousands of copyright owners, and millions of compositions. Most users want unplanned, rapid, and indemnified access to any and all of the repertory of compositions, and the owners want a reliable method of collecting for the use of their copyrights. Individual sales transactions in this industry are quite expensive, as would be individual monitoring and enforcement, especially in light of the resources of single composers. Indeed, as both the Court of Appeals and CBS recognize, the costs are prohibitive for licenses with individual radio stations, nightclubs, and restaurants, 562 F.2d, at 140, n. 26, and it was in that milieu that the blanket license arose.
31
A middleman with a blanket license was an obvious necessity if the thousands of individual negotiations, a virtual impossibility, were to be avoided. Also, individual fees for the use of individual compositions would presuppose an intricate schedule of fees and uses, as well as a difficult and expensive reporting problem for the user and policing task for the copyright owner. Historically, the market for public-performance rights organized itself largely around the single-fee blanket license, which gave unlimited access to the repertory and reliable protection against infringement. When ASCAP's major and user-created competitor, BMI, came on the scene, it also turned to the blanket license.
32
With the advent of radio and television networks, market conditions changed, and the necessity for and advantages of a blanket license for those users may be far less obvious than is the case when the potential users are individual television or radio stations, or the thousands of other individuals and organizations performing copyrighted compositions in public.34 But even for television network licenses, ASCAP reduces costs absolutely by creating a blanket license that is sold only a few, instead of thousands,35 of times, and that obviates the need for closely monitoring the networks to see that they do not use more than they pay for.36 ASCAP also provides the necessary resources for blanket sales and enforcement, resources unavailable to the vast majority of composers and publishing houses. Moreover, a bulk license of some type is a necessary consequence of the integration necessary to achieve these efficiencies, and a necessary consequence of an aggregate license is that its price must be established.
D
33
This substantial lowering of costs, which is of course potentially beneficial to both sellers and buyers, differentiates the blanket license from individual use licenses. The blanket license is composed of the individual compositions plus the aggregating service. Here, the whole is truly greater than the sum of its parts; it is, to some extent, a different product. The blanket license has certain unique characteristics: It allows the licensee immediate use of covered compositions, without the delay of prior individual negotiations37 and great flexibility in the choice of musical material. Many consumers clearly prefer the characteristics and cost advantages of this marketable package,38 and even small-performing rights societies that have occasionally arisen to compete with ASCAP and BMI have offered blanket licenses.39 Thus, to the extent the blanket license is a different product, ASCAP is not really a joint sales agency offering the individual goods of many sellers, but is a separate seller offering its blanket license, of which the individual compositions are raw material.40 ASCAP, in short, made a market in which individual composers are inherently unable to compete fully effectively.41
E
34
Finally, we have some doubt—enough to counsel against application of the per se rule—about the extent to which this practice threatens 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 n. 59, 84 L.Ed. 1129 (1940), that is, competitive pricing as the free market's means of allocating resources. Not all arrangements among actual or potential competitors that have an impact on price are per se violations of the Sherman Act or even unreasonable restraints. Mergers among competitors eliminate competition, including price competition, but they are not per se illegal, and many of them withstand attack under any existing antitrust standard. Joint ventures and other cooperative arrangements are also not usually unlawful, at least not as price-fixing schemes, where the agreement on price is necessary to market the product at all.
35
Here, the blanket-license fee is not set by competition among individual copyright owners, and it is a fee for the use of any of the compositions covered by the license. But the blanket license cannot be wholly equated with a simple horizontal arrangement among competitors. ASCAP does set the price for its blanket license, but that license is quite different from anything any individual owner could issue. The individual composers and authors have neither agreed not to sell individually in any other market nor use the blanket license to mask price fixing in such other markets.42 Moreover, the substantial restraints placed on ASCAP and its members by the consent decree must not be ignored. The District Court found that there was no legal, practical, or conspiratorial impediment to CBS's obtaining individual licenses; CBS, in short, had a real choice.
36
With this background in mind, which plainly enough indicates that over the years, and in the face of available alternatives, the blanket license has provided an acceptable mechanism for at least a large part of the market for the performing rights to copyrighted musical compositions, we cannot agree that it should automatically be declared illegal in all of its many manifestations. Rather, when attacked, it should be subjected to a more discriminating examination under the rule of reason. It may not ultimately survive that attack, but that is not the issue before us today.
IV
37
As we have noted, n. 27, supra, the enigmatic remarks of the Court of Appeals with respect to remedy appear to have departed from the court's strict, per se approach and to have invited a more careful analysis. But this left the general import of its judgment that the licensing practices of ASCAP and BMI under the consent decree are per se violations of the Sherman Act. We reverse that judgment, and the copyright misuse judgment dependent upon it, see n. 9, supra, and remand for further proceedings to consider any unresolved issues that CBS may have properly brought to the Court of Appeals.43 Of course, this will include an assessment under the rule of reason of the blanket license as employed in the television industry, if that issue was preserved by CBS in the Court of Appeals.44
38
The judgment of the Court of Appeals is reversed, and the cases are remanded to that court for further proceedings consistent with this opinion.
39
It is so ordered.
40
Mr. Justice STEVENS, dissenting.
41
The Court holds that ASCAP's blanket license is not a species of price fixing categorically forbidden by the Sherman Act. I agree with that holding. The Court remands the cases to the Court of Appeals, leaving open the question whether the blanket license as employed by ASCAP and BMI is unlawful under a rule-of-reason inquiry. I think that question is properly before us now and should be answered affirmatively.
42
There is ample precedent for affirmance of the judgment of the Court of Appeals on a ground that differs from its rationale, provided of course that we do not modify its judgment.1 In this litigation, the judgment of the Court of Appeals was not that blanket licenses may never be offered by ASCAP and BMI. Rather, its judgment directed the District Court to fashion relief requiring them to offer additional forms of license as well.2 Even though that judgment may not be consistent with its stated conclusion that the blanket license is "illegal per se " as a kind of price fixing, it is entirely consistent with a conclusion that petitioners' exclusive all-or-nothing blanket-license policy violates the rule of reason.3
43
The Court of Appeals may well so decide on remand. In my judgment, however, a remand is not necessary.4 The record before this Court is a full one, reflecting extensive discovery and eight weeks of trial. The District Court's findings of fact are thorough and well supported. They clearly reveal that the challenged policy does have a significant adverse impact on competition. I would therefore affirm the judgment of the Court of Appeals.
44
* In December 1969, the president of the CBS television network wrote to ASCAP and BMI requesting that each "promptly . . . grant a new performance rights license which will provide, effective January 1, 1970, for payments measured by the actual use of your music."5 ASCAP and BMI each responded by stating that it considered CBS's request to be an application for a license in accordance with the provisions of its consent decree and would treat it as such,6 even though neither decree provides for licensing on a per-composition or per-use basis.7 Rather than pursuing further discussion, CBS instituted this suit.
45
Whether or not the CBS letter is considered a proper demand for per-use licensing is relevant, if at all, only on the question of relief. For the fact is, and it cannot seriously be questioned, that ASCAP and BMI have steadfastly adhered to the policy of only offering overall blanket or per-program licenses,8 notwithstanding requests for more limited authorizations. Thus, ASCAP rejected a 1971 request by NBC for licenses for 2,217 specific compositions,9 as well as an earlier request by a group of television stations for more limited authority than the blanket licenses which they were then purchasing.10 Neither ASCAP nor BMI has ever offered to license anything less than its entire portfolio, even on an experimental basis. Moreover, if the response to the CBS letter were not sufficient to characterize their consistent policy, the defense of this lawsuit surely is. It is the refusal to license anything less than the entire repertoire—rather than the decision to offer blanket licenses themselves—that raises the serious antitrust questions in this case.
II
46
Under our prior cases, there would be no question about the illegality of the blanket-only licensing policy if ASCAP and BMI were the exclusive sources of all licenses. A copyright, like a patent, is a statutory grant of monopoly privileges. The rules which prohibit a patentee from enlarging his statutory monopoly by conditioning a license on the purchase of unpatented goods,11 or by refusing to grant a license under one patent unless the licensee also takes a license under another, are equally applicable to copyrights.12
47
It is clear, however, that the mere fact that the holder of several patents has granted a single package license covering them all does not establish any illegality. This point was settled by Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 834, 70 S.Ct. 894, 898, 94 L.Ed. 1312, and reconfirmed in Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 137-138, 89 S.Ct. 1562, 1583-1585, 23 L.Ed.2d 129. The Court is therefore unquestionably correct in its conclusion that ASCAP's issuance of blanket licenses covering its entire inventory is not, standing alone, automatically unlawful. But both of those cases identify an important limitation on this rule. In the former, the Court was careful to point out that the record did not present the question whether the package license would have been unlawful if Hazeltine had refused to license on any other basis. 339 U.S., at 831, 70 S.Ct. at 896. And in the latter case, the Court held that the package license was illegal because of such a refusal. 395 U.S., at 140-141, 89 S.Ct., at 1585-1586.
48
Since ASCAP offers only blanket licenses, its licensing practices fall on the illegal side of the line drawn by the two Hazeltine cases. But there is a significant distinction: unlike Hazeltine, ASCAP does not have exclusive control of the copyrights in its portfolio, and it is perfectly possible—at least as a legal matter—for a user of music to negotiate directly with composers and publishers for whatever rights he may desire. The availability of a practical alternative alters the competitive effect of a blockbooking or blanket-licensing policy. ASCAP is therefore quite correct in its insistence that its blanket license cannot be categorically condemned on the authority of the blockbooking and package-licensing cases. While these cases are instructive, they do not directly answer the question whether the ASCAP practice is unlawful.
49
The answer to that question depends on an evaluation of the effect of the practice on competition in the relevant market. And, of course, it is well settled that a sales practice that is permissible for a small vendor, at least when no coercion is present, may be unreasonable when employed by a company that dominates the market.13 We therefore must consider what the record tells us about the competitive character of this market.
III
50
The market for music at issue here is wholly dominated by ASCAP-issued blanket licenses.14 Virtually every domestic copyrighted composition is in the repertoire of either ASCAP or BMI. And again, virtually without exception, the only means that has been used to secure authority to perform such compositions is the blanket license.
51
The blanket all-or-nothing license is patently discriminatory.15 The user purchases full access to ASCAP's entire repertoire, even though his needs could be satisfied by a far more limited selection. The price he pays for this access is unrelated either to the quantity or the quality of the music he actually uses, or, indeed, to what he would probably use in a competitive system. Rather, in this unique all-or-nothing system, the price is based on a percentage of the user's advertising revenues,16 a measure that reflects the customer's ability to pay17 but is totally unrelated to factors—such as the cost, quality, or quantity of the product—that normally affect price in a competitive market. The ASCAP system requires users to buy more music than they want at a price which, while not beyond their ability to pay and perhaps not even beyond what is "reasonable" for the access they are getting,18 may well be far higher than what they would choose to spend for music in a competitive system. It is a classic example of economic discrimination.
52
The record plainly establishes that there is no price competition between separate musical compositions.19 Under a blanket license, it is no more expensive for a network to play the most popular current hit in prime time than it is to use an unknown composition as background music in a soap opera. Because the cost to the user is unaffected by the amount used on any program or on all programs, the user has no incentive to economize by, for example, substituting what would otherwise be less expensive songs for established favorites or by reducing the quantity of music used on a program. The blanket license thereby tends to encourage the use of more music, and also of a larger share of what is really more valuable music, than would be expected in a competitive system characterized by separate licenses. And since revenues are passed on to composers on a basis reflecting the character and frequency of the use of their music,20 the tendency is to increase the rewards of the established composers at the expense of those less well known. Perhaps the prospect is in any event unlikely, but the blanket license does not present a new songwriter with any opportunity to try to break into the market by offering his product for sale at an unusually low price. The absence of that opportunity, however unlikely it may be, is characteristic of a cartelized rather than a competitive market.21
53
The current state of the market cannot be explained on the ground that it could not operate competitively, or that issuance of more limited—and thus less restrictive—licenses by ASCAP is not feasible. The District Court's findings disclose no reason why music-performing rights could not be negotiated on a per-composition or per-use basis, either with the composer or publisher directly or with an agent such as ASCAP. In fact, ASCAP now compensates composers and publishers on precisely those bases.22 If distributions of royalties can be calculated on a per-use and per-composition basis, it is difficult to see why royalties could not also be collected in the same way. Moreover, the record also shows that where ASCAP's blanket-license scheme does not govern, competitive markets do. A competitive market for "synch" rights exists,23 and after the use of blanket licenses in the motion picture industry was discontinued,24 such a market promptly developed in that industry.25 In sum, the record demonstrates that the market at issue here is one that could be highly competitive, but is not competitive at all.
IV
54
Since the record describes a market that could be competitive and is not, and since that market is dominated by two firms engaged in a single, blanket method of dealing, it surely seems logical to conclude that trade has been restrained unreasonably. ASCAP argues, however, that at least as to CBS, there has been no restraint at all since the network is free to deal directly with copyright holders.
55
The District Court found that CBS had failed to establish that it was compelled to take a blanket license from ASCAP. While CBS introduced evidence suggesting that a significant number of composers and publishers, satisfied as they are with the ASCAP system, would be "disinclined" to deal directly with the network, the court found such evidence unpersuasive in light of CBS's substantial market power in the music industry and the importance to copyright holders of network television exposure.26 Moreover, it is arguable that CBS could go further and, along with the other television networks, use its economic resources to exploit destructive competition among purveyors of music by driving the price of performance rights down to a far lower level. But none of this demonstrates that ASCAP's practices are lawful, or that ASCAP cannot be held liable for injunctive relief at CBS's request.
56
The fact that CBS has substantial market power does not deprive it of the right to complain when trade is restrained. Large buyers, as well as small, are protected by the antitrust laws. Indeed, even if the victim of a conspiracy is himself a wrongdoer, he has not forfeited the protection of the law.27 Moreover, a conclusion that excessive competition would cause one side of the market more harm than good may justify a legislative exemption from the antitrust laws, but does not constitute a defense to a violation of the Sherman Act.28 Even though characterizing CBS as an oligopolist may be relevant to the question of remedy, and even though free competition might adversely affect the income of a good many composers and publishers, these considerations do not affect the legality of ASCAP's conduct.
57
More basically, ASCAP's underlying argument that CBS must be viewed as having acted with complete freedom in choosing the blanket license is not supported by the District Court's findings. The District Court did not find that CBS could cancel its blanket license "tomorrow" and continue to use music in its programming and compete with the other networks. Nor did the District Court find that such a course was without any risk or expense. Rather, the District Court's finding was that within a year, during which it would continue to pay some millions of dollars for its annual blanket license, CBS would be able to develop the needed machinery and enter into the necessary contracts.29 In other words, although the barriers to direct dealing by CBS as an alternative to paying for a blanket license are real and significant, they are not insurmountable.
58
Far from establishing ASCAP's immunity from liability, these District Court findings, in my judgment, confirm the illegality of its conduct. Neither CBS nor any other user has been willing to assume the costs and risks associated with an attempt to purchase music on a competitive basis. The fact that an attempt by CBS to break down the ASCAP monopoly might well succeed does not preclude the conclusion that smaller and less powerful buyers are totally foreclosed from a competitive market.30 Despite its size, CBS itself may not obtain music on a competitive basis without incurring unprecedented costs and risks. The fear of unpredictable consequences, coupled with the certain and predictable costs and delays associated with a change in its method of purchasing music, unquestionably inhibits any CBS management decision to embark on a competitive crusade. Even if ASCAP offered CBS a special bargain to forestall any such crusade, that special arrangement would not cure the marketwide restraint.
59
Whatever management decision CBS should or might have made, it is perfectly clear that the question whether competition in the market has been unduly restrained is not one that any single company's management is authorized to answer. It is often the case that an arrangement among competitors will not serve to eliminate competition forever, but only to delay its appearance or to increase the costs of new entry. That may well be the state of this market. Even without judicial intervention, the ASCAP monopoly might eventually be broken by CBS, if the benefits of doing so outweigh the significant costs and risks involved in commencing direct dealing.31 But that hardly means that the blanket-licensing policy at issue here is lawful. An arrangement that produces marketwide price discrimination and significant barriers to entry unreasonably restrains trade even if the discrimination and the barriers have only a limited life expectancy. History suggests, however, that these restraints have an enduring character.
60
Antitrust policy requires that great aggregations of economic power be closely scrutinized. That duty is especially important when the aggregation is composed of statutory monopoly privileges. Our cases have repeatedly stressed the need to limit the privileges conferred by patent and copyright strictly to the scope of the statutory grant. The record in this case plainly discloses that the limits have been exceeded and that ASCAP and BMI exercise monopoly powers that far exceed the sum of the privileges of the individual copyright holders. Indeed, ASCAP itself argues that its blanket license constitutes a product that is significantly different from the sum of its component parts. I agree with that premise, but I conclude that the aggregate is a monopolistic restraint of trade proscribed by the Sherman Act.
1
The District Court certified the case as a defendant class action. 400 F.Supp. 737, 741 n. 2 (S.D.N.Y.1975).
2
Id., at 771, quoting a CBS witness. CBS is also a leading music publisher, with publishing subsidiaries affiliated with both ASCAP and BMI, and is the world's largest manufacturer and seller of records and tapes. Ibid.
3
Act of Jan. 6, 1897, 29 Stat. 481.
4
CBS was a leader of the broadcasters who formed BMI, but it disposed of all of its interest in the corporation in 1959. 400 F.Supp., at 742.
5
Unless the context indicates otherwise, references to ASCAP alone in this opinion usually apply to BMI as well. See n. 20, infra.
6
15 U.S.C. §§ 1 and 2.
7
CBS seeks injunctive relief for the antitrust violations and a declaration of copyright misuse. 400 F.Supp., at 741.
8
The Court of Appeals affirmed the District Court's rejection of CBS's monopolization and tying contentions but did not rule on the District Court's conclusion that the blanket license was not an unreasonable restraint of trade. See 562 F.2d 130, 132, 135, 141 n. 29 (CA2 1977).
9
At CBS's suggestion, the Court of Appeals held that the challenged conduct constituted misuse of copyrights solely on the basis of its finding of unlawful price fixing. Id., at 141 n. 29.
10
The Court of Appeals went on to suggest some guidelines as to remedy, indicating that despite its conclusion on liability the blanket license was not totally forbidden. The Court of Appeals said:
"Normally, after a finding of price-fixing, the remedy is an injunction against the price-fixing—in this case, the blanket license. We think, however, that if on remand a remedy can be fashioned which will ensure that the blanket license will not affect the price or negotiations for direct licenses, the blanket license need not be prohibited in all circumstances. The blanket license is not simply a 'naked restraint' ineluctably doomed to extinction. There is not enough evidence in the present record to compel a finding that the blanket license does not serve a market need for those who wish full protection against infringement suits or who, for some other business reason, deem the blanket license desirable. The blanket license includes a practical covenant not to sue for infringement of any ASCAP copyright as well as an indemnification against suits by others.
"Our objection to the blanket license is that it reduces price competition among the members and provides a disinclination to compete. We think that these objections may be removed if ASCAP itself is required to provide some form of per use licensing which will ensure competition among the individual members with respect to those networks which wish to engage in per use licensing." Id., at 140 (footnotes omitted).
11
"This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable—an inquiry so often wholly fruitless when undertaken." Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958).
See Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 50 n. 16, 97 S.Ct. 2549, 2558 n. 16, 53 L.Ed.2d 568 (1977); United States v. Topco Associates, Inc., 405 U.S. 596, 609 n. 10, 92 S.Ct. 1126, 1134 n. 10, 31 L.Ed.2d 515 (1972).
12
See cases discussed in n. 14, infra.
13
CBS also complains that it pays a flat fee regardless of the amount of use it makes of ASCAP compositions and even though many of its programs contain little or no music. We are unable to see how that alone could make out an antitrust violation or misuse of copyrights:
"Sound business judgment could indicate that such payment represents the most convenient method of fixing the business value of the privileges granted by the licensing agreement. . . . Petitioner cannot complain because it must pay royalties whether it uses Hazeltine patents or not. What it acquired by the agreement into which it entered was the privilege to use any or all of the patents and developments as it desired to use them." Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 834, 70 S.Ct. 894, 898, 94 L.Ed. 1312 (1950).
See also Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969).
14
Cf., e. g., United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209 (1956) (manufacturer/wholesaler agreed with independent wholesalers on prices to be charged on products it manufactured); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (firms controlling a substantial part of an industry agreed to purchase "surplus" gasoline with the intent and necessary effect of increasing the price); United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927) (manufacturers and distributors of 82% of certain vitreous pottery fixtures agreed to sell at uniform prices).
15
Cohn, Music, Radio Broadcasters and the Sherman Act, 29 Geo.L.J. 407, 424 n. 91 (1941).
16
E. g., complaint in United States v. ASCAP, Civ. No. 13-95 (S.D.N.Y.1941), pp. 3-4.
17
United States v. ASCAP, 1940-1943 Trade Cases ¶ 56,104 (S.D.N.Y.1941).
18
See Alden-Rochelle, Inc. v. ASCAP, 80 F.Supp. 888 (S.D.N.Y.1948); M. Witmark & Sons v. Jensen, 80 F.Supp. 843 (D.C.Minn.1948), appeal dismissed sub nom. M. Witmark & Sons v. Berger Amusement Co., 177 F.2d 515 (CA8 1949).
19
United States v. ASCAP, 1950-1951 Trade Cases ¶ 62,595 (S.D.N.Y.1950).
20
BMI is in a similar situation. The original decree against BMI is reported as United States v. BMI, 1940-1943 Trade Cases ¶ 56,096 (E.D.Wis.1941). A new consent judgment was entered in 1966 following a monopolization complaint filed in 1964. United States v. BMI, 1966 Trade Cases ¶ 71,941 (S.D.N.Y.). The ASCAP and BMI decrees do vary in some respects. The BMI decree does not specify that BMI may only obtain nonexclusive rights from its affiliates or that the District Court may set the fee if the parties are unable to agree. Nonetheless, the parties stipulated, and the courts below accepted, that "CBS could secure direct licenses from BMI affiliates with the same ease or difficulty, as the case may be, as from ASCAP members." 400 F.Supp., at 745.
21
United States v. ASCAP (Application of Shenandoah Valley Broadcasting, Inc.), 208 F.Supp. 896 (S.D.N.Y.1962), aff'd, 331 F.2d 117 (CA2), cert. denied, 377 U.S. 997, 84 S.Ct. 1917, 12 L.Ed.2d 1048 (1964); United States v. ASCAP (Application of National Broadcasting Co.), 1971 Trade Cases ¶ 73,491 (S.D.N.Y.1970). See also United States v. ASCAP (Motion of Metromedia, Inc.), 341 F.2d 1003 (CA2 1965).
22
National Broadcasting Co. did, in 1971, request an annual blanket license for 2,217 specific ASCAP compositions most frequently used on its variety shows. It intended to acquire the remaining rights to background and theme music through direct transactions by it and its program packagers. See United States v. ASCAP (Application of National Broadcasting Co.), supra.
23
1950-1951 Trade Cases ¶ 62,595, p. 63,756.
24
Cf. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S., at 50 n. 16, 97 S.Ct., at 2558 n.16. Moreover, unthinking application of the per se rule might upset the balancing of economic power and of procompetitive and anticompetitive effect presumably worked out in the decree.
25
See cases cited n. 18, supra. Those cases involved licenses sold to individual movie theaters to "perform" compositions already on the motion pictures' soundtracks. ASCAP had barred its members from assigning performing rights to movie producers at the same time recording rights were licensed, and the theaters were effectively unable to engage in direct transactions for performing rights with individual copyright owners.
26
Certain individual television and radio stations, appearing here as amici curiae, argue that the per se rule should extend to ASCAP's blanket licenses with them as well. The television stations have filed an antitrust suit to that effect. Buffalo Broadcasting Co. v. ASCAP, 78 Civ. 5670 (SDNY, filed Nov. 27, 1978).
27
See n. 10, supra. The Court of Appeals would apparently not outlaw the blanket license across the board but would permit it in various circumstances where it is deemed necessary or sufficiently desirable. It did not even enjoin blanket licensing with the television networks, the relief it realized would normally follow a finding of per se illegality of the license in that context. Instead, as requested by CBS, it remanded to the District Court to require ASCAP to offer in addition to blanket licensing some competitive form of per-use licensing. But per-use licensing by ASCAP, as recognized in the consent decrees, might be even more susceptible to the per se rule than blanket licensing.
The rationale for this unusual relief in a per se case was that "[t]he blanket license is not simply a 'naked restraint' ineluctably doomed to extinction." 562 F.2d, at 140. To the contrary, the Court of Appeals found that the blanket license might well "serve a market need" for some. Ibid. This, it seems to us, is not the per se approach, which does not yield so readily to circumstances, but in effect is a rather bobtailed application of the rule of reason, bobtailed in the sense that it is unaccompanied by the necessary analysis demonstrating why the particular licensing system is an undue competitive restraint.
28
Surely, if ASCAP abandoned the issuance of all licenses and confined its activities to policing the market and suing infringers, it could hardly be said that member copyright owners would be in violation of the antitrust laws by not having a common agent issue per-use licenses. Under the copyright laws, those who publicly perform copyrighted music have the burden of obtaining prior consent. Cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S., at 139-140, 89 S.Ct., at 1585-1586.
29
In its complaint, CBS alleged that it would be "wholly impracticable" for it to obtain individual licenses directly from the composers and publishing houses, but it now says that it would be willing to do exactly that if ASCAP were enjoined from granting blanket licenses to CBS or its competitors in the network television business.
30
17 U.S.C. App. § 506.
31
See Koenigsberg, The 1976 Copyright Act: Advances for the Creator, 26 Cleve.St.L.Rev. 515, 524, 528 (1977).
32
Cf. Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963).
Because a musical composition can be "consumed" by many different people at the same time and without the creator's knowledge, the "owner" has no real way to demand reimbursement for the use of his property except through the copyright laws and an effective way to enforce those legal rights. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 162, 95 S.Ct. 2040, 2047, 45 L.Ed.2d 84 (1975). It takes an organization of rather large size to monitor most or all uses and to deal with users on behalf of the composers. Moreover, it is inefficient to have too many such organizations duplicating each other's monitoring of use.
33
The scrutiny occasionally required must not merely subsume the burdensome analysis required under the rule of reason, see National Society of Professional Engineers v. United States, 435 U.S. 679, 690-692, 98 S.Ct. 1355, 1364-1366, 55 L.Ed.2d 637 (1978), or else we should apply the rule of reason from the start. That is why the per se rule is not employed until after considerable experience with the type of challenged restraint.
34
And of course changes brought about by new technology or new marketing techniques might also undercut the justification for the practice.
35
The District Court found that CBS would require between 4,000 and 8,000 individual license transactions per year. 400 F.Supp., at 762.
36
To operate its system for distributing the license revenues to its members, ASCAP relies primarily on the networks' records of which compositions are used.
37
See Timberg, The Antitrust Aspects of Merchandising Modern Music: The ASCAP Consent Judgment of 1950, 19 Law & Contemp.Prob. 294, 297 (1954) ("The disk-jockey's itchy fingers and the bandleader's restive baton, it is said, cannot wait for contracts to be drawn with ASCAP's individual publisher members, much less for the formal acquiescence of a characteristically unavailable composer or author"). Significantly, ASCAP deals only with nondramatic performance rights. Because of their nature, dramatic rights, such as for musicals, can be negotiated individually and well in advance of the time of performance. The same is true of various other rights, such as sheet music, recording, and synchronization, which are licensed on an individual basis.
38
Cf. United States v. Grinnell Corp., 384 U.S. 563, 572-573, 86 S.Ct. 1698, 1704-1705, 16 L.Ed.2d 778 (1966); United States v. Philadelphia Nat. Bank, 374 U.S. 321, 356-357, 83 S.Ct. 1715, 1737-1738, 10 L.Ed.2d 915 (1963).
39
Comment, Music Copyright Associations and the Antitrust Laws, 25 Ind.L.J. 168, 170 (1950). See also Garner, United States v. ASCAP : The Licensing Provisions of the Amended Final Judgment of 1950, 23 Bull.Copyright Soc. 119, 149 (1975) ("no performing rights are licensed on other than a blanket basis in any nation in the world").
40
Moreover, because of the nature of the product—a composition can be simultaneously "consumed" by many users composers have numerous markets and numerous incentives to produce, so the blanket license is unlikely to cause decreased output, one of the normal undesirable effects of a cartel. And since popular songs get an increased share of ASCAP's revenue distributions, composers compete even within the blanket license in terms of productivity and consumer satisfaction.
41
Cf. United States v. Socony-Vacuum Oil Co., 310 U.S., at 217, 60 S.Ct., at 841 (distinguishing Chicago Bd. of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918), on the ground that among the effects of the challenged rule there "was the creation of a public market"); United States v. Trenton Potteries Co., 273 U.S., at 401, 47 S.Ct., at 381 (distinguishing Chicago Bd. of Trade on the ground that it did not involve "a price agreement among competitors in an open market").
42
"CBS does not claim that the individual members and affiliates ('sellers') of ASCAP and BMI have agreed among themselves as to the prices to be charged for the particular 'products' (compositions) offered by each of them." 400 F.Supp., at 748.
43
It is argued that the judgment of the Court of Appeals should nevertheless be affirmed on the ground that the blanket license is a tying arrangement in violation of § 1 of the Sherman Act or on the ground that ASCAP and BMI have monopolized the relevant market contrary to § 2. The District Court and the Court of Appeals rejected both submissions, and we do not disturb the latter's judgment in these respects, particularly since CBS did not file its own petition for certiorari challenging the Court of Appeals' failure to sustain its tying and monopolization claims.
44
The Court of Appeals did not address the rule-of-reason issue, and BMI insists that CBS did not preserve the question in that court. In any event, if the issue is open in the Court of Appeals, we prefer that that court first address the matter. Because of the United States' interest in the enforcement of the consent decree, we assume it will continue to play a role in this litigation on remand.
1
See United States v. New York Telephone Co., 434 U.S. 159, 166 n. 8, 98 S.Ct. 364, 369 n. 8, 54 L.Ed.2d 376; Dayton Board of Education v. Brinkman, 433 U.S. 406, 419, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851; Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479, 480-481, 96 S.Ct. 2158, 2159, 48 L.Ed.2d 784; United States v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 563, 68 L.Ed. 1087.
2
562 F.2d 130, 140-141 (CA2 1977).
3
See ante, at 17 n. 27 (describing relief ordered by Court of Appeals as "unusual" for a per se case, and suggesting that that court's decision appears more consistent with a rule-of-reason approach).
4
That the rule-of-reason issues have been raised and preserved throughout seems to me clear. See 562 F.2d, at 134. ("CBS contends that the blanket licensing method is not only an illegal tie-in or blockbooking which in practical terms is coercive in effect, but is also an illegal price-fixing device, a per se violation . . . "); id., at 141 n. 29. ("As noted, CBS also claims violation of § 2 of the Sherman Act. We need not go into the legal arguments on this point because they are grounded on its factual claim that there are barriers to direct licensing and 'bypass' of the ASCAP blanket license. The District Court, as noted rejected this contention and its findings are not clearly erroneous. The § 2 claim must therefore fail at this time and on this record"); Brief for Respondents 41.
5
400 F.Supp. 737, 753 (S.D.N.Y.1975).
6
ASCAP responded in a letter from its general counsel, stating that it would consider the request at its next board of directors meeting, and that it regarded it as an application for a license consistent with the decree. The letter from BMI's president stated: "The BMI Consent Decree provides for several alternative licenses and we are ready to explore any of these with you." Id., at 753-754.
7
See ante, at 12, and n. 21.
8
The 1941 decree requires ASCAP to offer per-program licenses as an alternative to the blanket license. United States v. ASCAP, 1940-1943 Trade Cases ¶ 56,104, p. 404 (S.D.N.Y.). Analytically, however, there is little difference between the two. A per-program license also covers the entire ASCAP repertoire; it is therefore simply a miniblanket license. As is true of a long-term blanket license, the fees set are in no way dependent on the quantity or quality of the music used. See infra, at 30-33, infra.
9
See United States v. ASCAP (Application of National Broadcasting Co.), 1971 Trade Cases ¶ 73,491 (S.D.N.Y.1970).
10
See United States v. ASCAP (Application of Shenandoah Valley Broadcasting, Inc.), 208 F.Supp. 896 (S.D.N.Y.1962), aff'd, 331 F.2d 117 (CA2 1964), cert. denied, 377 U.S. 997, 84 S.Ct. 1917, 12 L.Ed.2d 1048.
11
Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376; Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 60 S.Ct. 618, 84 L.Ed. 852; International Business Machines Corp. v. United States, 298 U.S. 131, 56 S.Ct. 701, 80 L.Ed. 1085; United Shoe Machinery Corp. v. United States, 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708.
12
Indeed, the leading cases condemning the practice of "blockbooking" involved copyrighted motion pictures, rather than patents. See United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260; United States v. Loew's Inc., 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11.
13
See Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 334, 81 S.Ct. 623, 631, 5 L.Ed.2d 580 (upholding requirements contract on the ground that "[t]here is here neither a seller with a dominant position in the market as in Standard Fashion [Co. v. Magrane-Houston Co., 258 U.S. 346, 42 S.Ct. 360, 66 L.Ed. 653]; nor myriad outlets with substantial sales volume, coupled with an industry-wide practice of relying upon exclusive contracts, as in Standard Oil [Co. v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371]; nor a plainly restrictive tying arrangement as in International Salt [Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed.2d 20]"); Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 610-612, 73 S.Ct. 872, 881-882, 97 L.Ed. 1277 (upholding challenged advertising practice because, while the volume of commerce affected was not " 'insignificant or insubstantial,' " seller was found not to occupy a "dominant position" in the relevant market). While our cases make clear that a violation of the Sherman Act requires both that the volume of commerce affected be substantial and that the seller enjoy a dominant position, see id., at 608-609, 73 S.Ct., at 880-881, proof of actual compulsion has not been required, but cf. Royster Drive-In Theatres, Inc. v. American Broadcasting-Paramount Theatres, Inc., 268
F.2d 246, 251 (CA2 1959), cert. denied, 361 U.S. 885, 80 S.Ct. 156, 4 L.Ed.2d 121; Milwaukee Towne Corp. v. Loew's, Inc., 190 F.2d 561 (CA7 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 303, 96 L.Ed. 680. The critical question is one of the likely practical effect of the arrangement: whether the "court believes it probable that performance of the contract will foreclose competition in a substantial share of the line of commerce affected." Tampa Electric Co. v. Nashville Coal Co., supra, 365 U.S., at 327, 81 S.Ct., at 628.
14
As in the majority opinion, my references to ASCAP generally encompass BMI as well.
15
See Cirace, CBS v. ASCAP: An Economic Analysis of A Political Problem, 47 Ford.L.Rev. 277, 286 (1978) ("the all-or-nothing bargain allows the monopolist to reap the benefits of perfect price discrimination without confronting the problems posed by dealing with different buyers on different terms").
16
For many years prior to the commencement of this action, the BMI blanket-license fee amounted to 1.09% of net receipts from sponsors after certain specified deductions. 400 F.Supp., at 743. The fee for access to ASCAP's larger repertoire was set at 2.5% of net receipts; in recent years, however, CBS has paid a flat negotiated fee, rather than a percentage, to ASCAP. 23 Jt.App. in CA2 No. 75-7600, pp. E1051-E1052, E1135.
17
See Cirace, supra, at 288:
"This history indicates that, from its inception, ASCAP exhibited a tendency to discriminate in price. A license fee based upon a percentage of gross revenue is discriminatory in that it grants the same number of rights to different licensees for different total dollar amounts, depending upon their ability to pay. The effectiveness of price discrimination is significantly enhanced by the all-or-nothing blanket license."
18
Under the ASCAP consent decree, on receipt of an application, ASCAP is required to "advise the applicant in writing of the fee which it deems reasonable for the license requested." If the parties are unable to agree on the fee within 60 days of the application, the applicant may apply to the United States District Court for the Southern District of New York for the determination of a "reasonable fee." United States v. ASCAP, 1950-1951 Trade Cases ¶ 62,595, p. 63,754 (S.D.N.Y.1950). The BMI decree contains no similar provision for judicial determination of a reasonable fee.
19
ASCAP's economic expert, Robert Nathan, was unequivocal on this point:
"Q. Is there price competition under this system between separate musical compositions?
"A. No sir." Tr. 3983.
20
See 562 F.2d, at 136 n. 15. In determining royalties ASCAP distinguishes between feature, theme, and background uses of music. The 1950 amended decree requires ASCAP to distribute royalties on "a basis which gives primary consideration to the performance of the compositions." The 1960 decree provided for the additional option of receiving royalties under a deferred plan which provides additional compensation based on length of membership and the recognized status of the individual's works. See United States v. ASCAP, 1960 Trade Cases ¶ 69,612, pp. 76,469-76,470 (S.D.N.Y.1960).
21
See generally 2 P. Areeda & D. Turner, Antitrust Law 280-281, 342-345 (1978); Cirace, supra, n. 15, at 286-292.
22
See n. 20, supra.
23
The "synch" right is the right to record a copyrighted song in synchronization with the film or videotape, and is obtained separately from the right to perform the music. It is the latter which is controlled by ASCAP and BMI. See CBS, Inc. v. ASCAP, 400 F.Supp., at 743.
24
See Alden-Rochelle, Inc. v. ASCAP, 80 F.Supp. 888 (S.D.N.Y.1948).
25
See 400 F.Supp., at 759-763; 5 Jt.App. in CA2 No. 75-7600, pp. 775-777 (testimony of Albert Berman, managing director of the Harry Fox Agency, Inc.). Television synch rights and movie performance and synch rights are handled by the Fox Agency, which serves as the broker for thousands of music publishers.
26
See 400 F.Supp., at 767-771.
27
See Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 138-140, 88 S.Ct. 1981, 1984-1985, 20 L.Ed.2d 982; Simpson v. Union Oil Co., 377 U.S. 13, 16-17, 84 S.Ct. 1051, 1054-1055, 12 L.Ed.2d 98; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 214, 71 S.Ct. 259, 261, 95 L.Ed. 219.
28
See National Society of Professional Engineers v. United States, 435 U.S. 679, 689-690, 98 S.Ct. 1355, 1364, 55 L.Ed.2d 637.
29
See 400 F.Supp., at 762-765.
30
For an individual user, the transaction costs involved in direct dealing with individual copyright holders may well be prohibitively high, at least in the absence of any broker or agency routinely handling such requests. Moreover, the District Court found that writers and publishers support and prefer the ASCAP system to direct dealing. Id., at 767. While their apprehension at direct dealing with CBS could be overcome, the District Court found, by CBS's market power and the importance of television exposure, a similar conclusion is far less likely with respect to other users.
31
The risks involved in such a venture appear to be substantial. One significant risk, which may be traced directly to ASCAP and its members, relates to music "in the can"—music which has been performed on shows and movies already in the network's inventory, but for which the network must still secure performing rights. The networks accumulate substantial inventories of shows "in the can." And, as the Government has pointed out as amicus curiae :
"If they [the networks and television stations] were to discontinue the blanket license, they then would be required to obtain performance rights for these already-produced shows. This attempt would create an opportunity for the copyright owners, as a condition of granting performing rights, to attempt to obtain the entire value of the shows 'in the can.' It would produce, in other words, a case of bilateral monopoly. Because pricing is indeterminate in a bilateral monopoly, television networks would not terminate their blanket licenses until they had concluded an agreement with every owner of copyrighted music 'in the can' to allow future performance for an identified price; the networks then would determine whether that price was sufficiently low that termination of the blanket license would be profitable. But the prospect of such negotiations offers the copyrights owners an ability to misuse their rights in a way that ensures the continuation of blanket licensing despite a change in market conditions that may make other forms of licensing preferable." Brief for United States as Amicus Curiae 24-25.
This analysis is in no sense inconsistent with the findings of the District Court. The District Court did reject CBS's coercion argument as to music "in the can." But as the Government again points out, the District Court's findings were addressed essentially to a tie-in claim; "the court did not consider the possibility that the copyright owners' self-interested, non-coercive demands for compensation might nevertheless make the cost of CBS' dropping the blanket license sufficiently high that ASCAP and BMI could take this 'termination penalty' into account in setting fees for the blanket license." Id., at 25 n. 23.
| 78
|
441 U.S. 130
99 S.Ct. 1623
60 L.Ed.2d 96
Daniel BURCH et al., Petitioners,v.STATE OF LOUISIANA.
No. 78-90.
Argued Feb. 22, 1979.
Decided April 17, 1979.
Syllabus
Held: A conviction by a nonunanimous six-person jury in a state criminal trial for a nonpetty offense, as contemplated by provisions of the Louisiana Constitution and Code of Criminal Procedure that permit a conviction by five out of the six jurors, violates the right of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments. Pp. 134-139.
(a) Lines must be drawn somewhere if the substance of the jury trial right is to be preserved, and while this line-drawing process "cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little," Duncan v. Louisiana, 391 U.S. 145, 161, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491, conviction for a nonpetty offense by only five members of a six-person jury presents a threat to preservation of the substance of the jury trial guarantee and justifies requiring verdicts rendered by such juries to be unanimous. Cf. Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234. Pp. 137-138.
(b) The near-uniform judgment of those States utilizing six-member juries in trials of nonpetty offenses that the verdict must be unanimous to convict, provides a useful guide in delimiting the line between those jury practices that are constitutionally permissible and those that are not. P. 138.
(c) The State's substantial interest in reducing the time and expense associated with the administration of its system of criminal justice is insufficient justification for its use of nonunanimous six-person juries. Any benefits that might accrue from the use of such juries, as compared with requiring unanimity, are speculative, at best, and, more importantly, when a State has reduced the size of its juries to the minimum number permitted by the Constitution, the additional authorization of nonunanimous verdicts sufficiently threatens the constitutional principles establishing the size threshold that any countervailing interest of the State should yield. Pp. 138-139.
360 So.2d 831, reversed in part, affirmed in part, and remanded.
Jack Peebles, New Orleans, La., for petitioners.
Louise Korns, New Orleans, La., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
The Louisiana Constitution and Code of Criminal Procedure provide that criminal cases in which the punishment imposed may be confinement for a period in excess of six months "shall be tried before a jury of six persons, five of whom must concur to render a verdict."1 We granted certiorari to decide whether conviction by a nonunanimous six-person jury in a state criminal trial for a nonpetty offense as contemplated by these provisions of Louisiana law violates the rights of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments.2 439 U.S. 925, 99 S.Ct. 307, 58 L.Ed.2d 317 (1978).
2
Petitioners, an individual and a Louisiana corporation, were jointly charged in two counts with the exhibition of two obscene motion pictures.3 Pursuant to Louisiana law, they were tried before a six-person jury, which found both petitioners guilty as charged. A poll of the jury after verdict indicated that the jury had voted unanimously to convict petitioner Wrestle, Inc.,4 and had voted 5-1 to convict petitioner Burch. Burch was sentenced to two consecutive 7-month prison terms, which were suspended, and fined $1,000; Wrestle, Inc., was fined $600 on each count.
3
Petitioners appealed their convictions to the Supreme Court of Louisiana, where they argued that the provisions of Louisiana law permitting conviction by a nonunanimous six-member jury violated the rights of persons accused of nonpetty criminal offenses to trial by jury guaranteed by the Sixth and Fourteenth Amendments.5 Though acknowledging that the issue was "close," the court held that conviction by a nonunanimous six-person jury did not offend the Constitution. State v. Wrestle, Inc., 360 So.2d 831, 838 (1978). The court concluded that none of this Court's decisions precluded use of a nonunanimous six-person jury. " 'If 75 percent concurrence (9/12) was enough for a verdict as determined in Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), then requiring 83 percent concurrence (5/6) ought to be within the permissible limits of Johnson.' " Ibid., quoting Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 56 n. 300 (1974). And our recent decision in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), striking down a Georgia law allowing conviction by a unanimous five-person jury in nonpetty criminal cases, was distinguishable in the Louisiana Supreme Court's view:
4
"[I]n Williams [v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970)] the court held that a six-person jury was of sufficient size to promote adequate group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community. These values, which Ballew held a five-person jury is inadequate to serve, are not necessarily defeated because the six-person jury's verdict may be rendered by five instead of by six persons." 360 So.2d, at 838.
5
Since the Louisiana Supreme Court believed that conviction by a nonunanimous six-person jury was not necessarily foreclosed by this Court's decisions, it stated that it preferred to "indulg[e] in the presumption of federal constitutionality which must be afforded to provisions of our state constitution." Ibid.
6
We agree with the Louisiana Supreme Court that the question presented is a "close" one. Nonetheless, we believe that conviction by a nonunanimous six-member jury in a state criminal trial for a nonpetty offense deprives an accused of his constitutional right to trial by jury.
7
Only in relatively recent years has this Court had to consider the practices of the several States relating to jury size and unanimity. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), marked the beginning of our involvement with such questions. The Court in Duncan held that because trial by jury in "serious" criminal cases is "fundamental to the American scheme of justice" and essential to due process of law, the Fourteenth Amendment guarantees a state criminal defendant the right to a jury trial in any case which, if tried in a federal court, would require a jury under the Sixth Amendment. Id., at 149, 158-159, 88 S.Ct., at 1447, 1452-1453.6
8
Two Terms later in Williams v. Florida, 399 U.S. 78, 86, 90 S.Ct. 1893, 1898, 26 L.Ed.2d 446 (1970), the Court held that this constitutional guarantee of trial by jury did not require a State to provide an accused with a jury of 12 members and that Florida did not violate the jury trial rights of criminal defendants charged with nonpetty offenses by affording them jury panels comprised of only 6 persons. After canvassing the common-law development of the jury and the constitutional history of the jury trial right, the Court concluded that the 12-person requirement was "a historical accident" and that there was no indication that the Framers intended to preserve in the Constitution the features of the jury system as it existed at common law. Id., at 89-90, 90 S.Ct., at 1899-1900. Thus freed from strictly historical considerations, the Court turned to examine the function that this particular feature performs and its relation to the purposes of jury trial. Id., at 99-100, 90 S.Ct., at 1905-1906. The purpose of trial by jury, as noted in Duncan, is to prevent government oppression by providing a "safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." 391 U.S., at 156, 88 S.Ct., at 1451. Given this purpose, the Williams Court observed that the jury's essential feature lies in the "interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence." 399 U.S., at 100, 90 S.Ct., at 1906. These purposes could be fulfilled, the Court believed, so long as the jury was of a sufficient size to promote group deliberation, free from outside intimidation, and to provide a fair possibility that a cross section of the community would be represented on it. Ibid. The Court concluded, however, that there is "little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12—particularly if the requirement of unanimity is retained." Ibid. (emphasis added).7
9
A similar analysis led us to conclude in 1972 that a jury's verdict need not be unanimous to satisfy constitutional requirements, even though unanimity had been the rule at common law. Thus, in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), we upheld a state statute providing that only 10 members of a 12-person jury need concur to render a verdict in certain noncapital cases.8 In terms of the role of the jury as a safeguard against oppression, the plurality opinion perceived no difference between those juries required to act unanimously and those permitted to act by votes of 10 to 2. 406 U.S., at 411, 92 S.Ct., at 1633. Nor was unanimity viewed by the plurality as contributing materially to the exercise of the jury's common-sense judgment or as a necessary precondition to effective application of the requirement that jury panels represent a fair cross section of the community. Id., at 410, 412, 92 S.Ct., at 1632, 1633.9
10
Last Term, in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), we considered whether a jury of less than six members passes constitutional scrutiny, a question that was explicitly reserved in Williams v. Florida. See 399 U.S., at 91 n. 28, 90 S.Ct., at 1901 n. 28. The Court, in separate opinions, held that conviction by a unanimous five-person jury in a trial for a nonpetty offense deprives an accused of his right to trial by jury. While readily admitting that the line between six members and five was not altogether easy to justify, at least five Members of the Court believed that reducing a jury to five persons in nonpetty cases raised sufficiently substantial doubts as to the fairness of the proceeding and proper functioning of the jury to warrant drawing the line at six. See 435 U.S., at 239, 98 S.Ct., at 1038 (opinion of Blackmun, J.); id., at 245-246, 98 S.Ct., at 1042 (opinion of Powell, J.).10
11
We thus have held that the Constitution permits juries of less than 12 members, but that it requires at least 6. Ballew v. Georgia, supra; Williams v. Florida, supra. And we have approved the use of certain nonunanimous verdicts in cases involving 12-person juries. Apodaca v. Oregon, supra (10-2); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (9-3). These principles are not questioned here. Rather, this case lies at the intersection of our decisions concerning jury size and unanimity. As in Ballew, we do not pretend the ability to discern a priori a bright line below which the number of jurors participating in the trial or in the verdict would not permit the jury to function in the manner required by our prior cases. 435 U.S., at 231-232, 98 S.Ct., at 1034-1035 (opinion of Blackmun, J.); id., at 245-246, 98 S.Ct., at 1042 (opinion of Powell, J.); see Williams v. Florida, supra, 399 U.S. at 100, 90 S.Ct. at 1905. But having already departed from the strictly historical requirements of jury trial, it is inevitable that lines must be drawn somewhere if the substance of the jury trial right is to be preserved. Cf. Scott v. Illinois, 440 U.S. 367, 372, 99 S.Ct. 1158, 1161, 59 L.Ed.2d 383 (1979); Baldwin v. New York, 399 U.S. 66, 72-73, 90 S.Ct. 1886, 1890-1891, 26 L.Ed.2d 437 (1970) (plurality opinion); Duncan v. Louisiana, 391 U.S., at 161, 88 S.Ct., at 1453. Even the State concedes as much. Tr. of Oral Arg. 26-27.
12
This line-drawing process, "although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little." Duncan v. Louisiana, supra, at 161, 88 S.Ct., at 1453; see Baldwin v. New York, supra, 399 U.S. at 72-73, 90 S.Ct. at 1890-1891 (plurality opinion). However, much the same reasons that led us in Ballew to decide that use of a five-member jury threatened the fairness of the proceeding and the proper role of the jury, lead us to conclude now that conviction for a nonpetty offense by only five members of a six-person jury presents a similar threat to preservation of the substance of the jury trial guarantee and justifies our requiring verdicts rendered by six-person juries to be unanimous.11 We are buttressed in this view by the current jury practices of the several States. It appears that of those States that utilize six-member juries in trials of nonpetty offenses, only two, including Louisiana, also allow nonunanimous verdicts.12 We think that this near-uniform judgment of the Nation provides a useful guide in delimiting the line between those jury practices that are constitutionally permissible and those that are not. See Baldwin v. New York, supra, at 70-72, 90 S.Ct., at 1888-1890 (plurality opinion); Duncan v. Louisiana, supra, 391 U.S., at 161, 88 S.Ct., at 1453; District of Columbia v. Clawans, 300 U.S. 617, 628, 57 S.Ct. 660, 663, 81 L.Ed. 843 (1937).
13
The State seeks to justify its use of nonunanimous sixperson juries on the basis of the "considerable time" savings that it claims results from trying cases in this manner. It asserts that under its system, juror deliberation time is shortened and the number of hung juries is reduced. Brief for Respondent 14. Undoubtedly, the State has a substantial interest in reducing the time and expense associated with the administration of its system of criminal justice. But that interest cannot prevail here. First, on this record, any benefits that might accrue by allowing five members of a six-person jury to render a verdict, as compared with requiring unanimity of a six-member jury, are speculative, at best. More importantly, we think that when a State has reduced the size of its juries to the minimum number of jurors permitted by the Constitution, the additional authorization of nonunanimous verdicts by such juries sufficiently threatens the constitutional principles that led to the establishment of the size threshold that any countervailing interest of the State should yield.
14
The judgment of the Louisiana Supreme Court affirming the conviction of petitioner Burch is, therefore, reversed, and its judgment affirming the conviction of petitioner Wrestle, Inc., is affirmed. The case is remanded to the Louisiana Supreme Court for proceedings not inconsistent with this opinion.
15
It is so ordered.
16
Mr. Justice STEVENS, concurring.
17
Even though I have not changed the views I expressed in Marks v. United States, 430 U.S. 188, 198, 97 S.Ct. 990, 996, 51 L.Ed.2d 260; Smith v. United States, 431 U.S. 291, 311-321, 97 S.Ct. 1756, 1769-1774, 52 L.Ed.2d 324; and Splawn v. California, 431 U.S. 595, 602-605, 97 S.Ct. 1987, 1992-1993, 52 L.Ed.2d 606, I do not believe that I have the authority to vote to modify the judgment below on a ground not fairly subsumed within the question presented by the petition for certiorari.* That question is whether conviction by a nonunanimous six-person jury of a nonpetty offense violates the Sixth and Fourteenth Amendments. Because this is the only question addressed by the Court and because I agree with the Court's resolution of this question, I join its opinion.
18
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, concurring in part and dissenting in part.
19
For the reasons set forth in Johnson v. Louisiana, 406 U.S. 356, 380, 92 S.Ct. 1620, 1643, 32 L.Ed.2d 152 (Douglas, J., dissenting), 395, 92 S.Ct., 1650 (Brennan, J., dissenting), 397, 92 S.Ct., 1626 (Stewart, J., dissenting), 399, 92 S.Ct., 1651 (Marshall, J., dissenting) (1972), and Apodaca v. Oregon, 406 U.S. 404, 414, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 (1972) (Stewart, J., dissenting). I agree that petitioner Burch's criminal conviction by a nonunanimous jury verdict must be reversed as a violation of his right to jury trial guaranteed by the Sixth and Fourteenth Amendments. However, I dissent from the Court's disposition insofar as it authorizes a retrial of petitioner Burch and affirms the conviction of petitioner Wrestle, Inc. Petitioners were convicted on charges of exhibiting allegedly obscene motion pictures in violation of La.Rev.Stat.Ann. § 14:106(A)(3) (West 1974). That statute in my view is overbroad and therefore facially unconstitutional. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting). Accordingly, I would reverse the convictions of both petitioners and declare that the unconstitutionality of the statute precludes a constitutional conviction of either for its alleged violation. See Ballew v. Georgia, 435 U.S. 223, 246, 98 S.Ct. 1029, 1042, 55 L.Ed.2d 234 (1978) (opinion of Brennan, J.).
1
Article I, § 17, of the Louisiana Constitution provides:
"A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury."
Article 779(A), La.Code Crim.Proc.Ann. (West Supp. 1979), states:
"A defendant charged with a misdemeanor in which the punishment may be a fine in excess of five hundred dollars or imprisonment for more than six months shall be tried by a jury of six jurors, five of whom must concur to render a verdict."
2
The Sixth Amendment provides:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defense."
In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Court held that the right of trial by jury was a fundamental right applicable to the States by virtue of the Fourteenth Amendment.
3
At the time of petitioners' trial, the maximum penalty prescribed for the crime of obscenity was a fine of not less than $1,000, or imprisonment in the parish prison for not more than one year, or both. La.Rev.Stat.Ann. § 14:106(G) (West 1974).
4
Because Wrestle, Inc., was convicted by a unanimous six-person jury, it lacks standing to challenge the constitutionality of the provisions of Louisiana law allowing conviction by a nonunanimous six-member jury. See, e. g., Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 260-261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977); United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). And in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), this Court held that conviction by a unanimous six-person jury does not violate an accused's right to trial by jury. Accordingly, Wrestle, Inc., has not been denied its constitutional right to trial by jury.
5
Although petitioners did not raise the jury trial issue in the trial court, the Louisiana Supreme Court held that under state law it could consider petitioners' claim, and it disposed of that claim. State v. Wrestle, Inc., 360 So.2d 831, 837 (1978). The federal question therefore is properly raised in this Court. See New Jersey v. Portash, 440 U.S. 450, 455, 99 S.Ct. 1292, 1295, 59 L.Ed.2d 501 (1979); Jenkins v. Georgia, 418 U.S. 153, 157, 94 S.Ct. 2750, 2753, 41 L.Ed.2d 642 (1974); Raley v. Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344 (1959).
6
In Duncan v. Louisiana, supra, at 159, 88 S.Ct. at 1452, the Court reaffirmed the long-established view that "petty offenses" may be tried without a jury, and in Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970), the plurality opinion of Mr. Justice White concluded that "no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized." See Ballew v. Georgia, 435 U.S. 223, 229, 98 S.Ct. 1029, 1033, 55 L.Ed.2d 234 (1978) (opinion of Blackmun, J.). Because the Louisiana obscenity statute under which petitioners were charged authorized imprisonment for more than six months, see n. 3, supra, petitioners were entitled under the Constitution to be tried by a jury.
7
The Court also believed that a jury of 12 was neither more reliable as a factfinder, more advantageous to the defendant, nor more representative of the variety of viewpoints in the community than a jury of 6. 399 U.S., at 100-102, 90 S.Ct., at 1905-1907.
8
Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), was decided the same day as Apodaca v. Oregon and held that conviction by a 9-3 verdict in certain noncapital cases did not violate the Due Process Clause for failure to satisfy the reasonable-doubt standard. Unlike Apodaca, Johnson involved a trial held prior to Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which the Court in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), held was not to be applied retroactively, and therefore did not implicate the Sixth Amendment as applied to the States through the Fourteenth. 406 U.S., at 358, 92 S.Ct., at 1622.
9
Mr. Justice Powell concurred in the judgment in Apodaca v. Oregon, 406 U.S., at 366, 92 S.Ct., at 1635. He concluded that although Sixth Amendment history and precedent required jury unanimity in federal trials, the Due Process Clause of the Fourteenth Amendment does not incorporate all the elements of a jury trial required by the Sixth Amendment and does not prevent Oregon from permitting conviction by a verdict of 10-2. Id., at 369-380, 92 S.Ct., at 1637-1642.
10
Mr. Justice White concurred in the judgment on the ground that a jury of fewer than six persons would not satisfy the fair-cross-section requirement of the Sixth and Fourteenth Amendments. 435 U.S., at 245, 98 S.Ct., at 1042. See also id., at 246, 98 S.Ct., at 1042 (opinion of Brennan, J., joining opinion of Blackmun, J., insofar as it holds that the Sixth and Fourteenth Amendments require juries in criminal trials to contain more than five persons).
11
We, of course, intimate no view as to the constitutionality of nonunanimous verdicts rendered by juries comprised of more than six members.
12
Of the 25 States that apparently allow six-person juries in the trials of at least some nonpetty cases, only Louisiana and Oklahoma appear to permit a verdict to be rendered by a less than unanimous jury. See La.Const., Art. I, § 17; La.Code Crim.Proc.Ann., Art. 779(A) (West Supp. 1979); Okl.Const., Art. 2, § 19; Okl.Stat., Tit. 22, § 601 (1971); Houchin v. State, 97 Okl.Cr. 268, 262 P.2d 173 (1953); Pierce v. State, 96 Okl.Cr. 76, 248 P.2d 633 (1952). The Constitution of the State of Idaho allows, but does not require, nonunanimous six-person juries in certain circumstances; however, the Idaho criminal rules appear to require verdicts of six-person juries to be unanimous. See Idaho Const., Art. I, § 7; Idaho Rule Crim.Proc. 31(a).
*
See this Court's Rule 23(1)(c) ("Only the questions set forth in the petition or fairly comprised therein will be considered by the court"); Mazer v. Stein, 347 U.S. 201, 208, and n. 6, 74 S.Ct. 460, 465, and n. 6, 98 L.Ed. 630; General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 177-179, 58 S.Ct. 849, 850-852, 82 L.Ed. 1273.
| 01
|
441 U.S. 91
99 S.Ct. 1601
60 L.Ed.2d 66
GLADSTONE, REALTORS, et al., Petitioners,v.VILLAGE OF BELLWOOD et al.
No. 77-1493.
Argued Nov. 29, 1978.
Decided April 17, 1979.
Syllabus
Section 812 of the Fair Housing Act of 1968 (Act) provides that the rights granted by § 804 against racial discrimination in the sales or rental of housing "may be enforced by civil actions in appropriate United States district courts." Respondents (the village of Bellwood, one Negro and four white residents of Bellwood, and one Negro resident of a neighboring municipality) brought separate actions in District Court under § 812 against petitioners (two real estate brokerage firms and certain of their employees), alleging that they had violated § 804 by "steering" prospective Negro homeowners toward a specified 12- by 13-block integrated area ("target" area) of Bellwood and by steering white customers away from the "target" area. It was further alleged that Bellwood had been injured by having its housing market wrongfully manipulated to the economic and social detriment of its citizens and that the individual respondents had been denied their right to select housing without regard to race and had been deprived of the social and professional benefits of living in an integrated society. Monetary, injunctive, and declaratory relief was sought. Prior to bringing suit, the individual respondents, purportedly but not in fact seeking to purchase homes, had acted as "testers" in an attempt to determine whether petitioners were engaged in racial steering. Four of the six individual respondents reside in the "target" area. The District Court granted summary judgment for the petitioners in both cases, holding that respondents, who had acted only as testers and thus were at most indirect victims of the alleged violations, lacked standing to sue under § 812, which was limited to actions by "direct victims" of violations. The Court of Appeals reversed and remanded, holding that although the individual respondents lacked standing in their capacity as testers, they were entitled to prove that the discriminatory practices documented by their testing deprived them, as residents of the adversely affected area, of the social and professional benefits of living in an integrated society; that the requirements of Art. III had been satisfied as to both the individual respondents and respondent village; that § 810 of the Act—which provides that a "person aggrieved" by a violation of the Act may seek conciliation from the Secretary of Housing and Urban Development (HUD) and if conciliation fails bring suit in district court—and § 812 provide alternative remedies available to precisely the same class of plaintiffs; and that the conclusion in Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 366, 34 L.Ed.2d 415, that standing under § 810 extends " 'as broadly as is permitted by Article III,' " is applicable to cases brought under § 812. Held :
1. The Court of Appeals correctly interpreted §§ 810 and 812 as providing alternative remedies to precisely the same class of plaintiffs, with the result that standing under § 812, like that under § 810, is as broad as is permitted by Art. III. Trafficante, supra. This construction of the Act is consistent with both its language and its legislative history and with the interpretation of HUD, the agency primarily assigned to implement and administer the Act. Pp. 100-109.
2. The facts alleged in the complaints and revealed by initial discovery are sufficient to provide standing to respondents under Art. III, except with respect to the two individual respondents who do not reside within the "target" area, and thus summary judgments for petitioners should not have been entered. Pp. 109-116.
(a) If, as alleged, petitioners' sales practices actually have begun to rob Bellwood of its racial balance and stability, the village has standing to challenge the legality of that conduct. Pp. 109-111.
(b) The allegation that the "target" area is losing its integrated character because of petitioners' conduct is sufficient to satisfy Art. III with respect to the individual respondents who reside in that area. The constitutional limits of these respondents' standing to protest the intentional segregation of their community do not vary simply because that community is defined in terms of city blocks rather than, as in Trafficante, supra, by reference to apartment buildings, but instead are determined by the presence or absence of a "distinct and palpable injury" to respondents. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343. Moreover, to the extent that the complaints allege economic injury to these respondents resulting from a diminution in the value of their homes due to petitioners' conduct, convincing evidence of such a decrease in value would be sufficient under Art. III to allow standing to contest the legality of that conduct. Pp. 111-115.
569 F.2d 1013, affirmed in part.
Jonathan T. Howe, Chicago, Ill., for petitioners.
F. Willis Caruso, Chicago, Ill., for respondents.
Lawrence G. Wallace, Washington, D. C., for United States, as amicus curiae, by special leave of Court.
Mr. Justice POWELL delivered the opinion of the Court.
1
Title VIII of the Civil Rights Act of 1968, 82 Stat. 81, as amended, 42 U.S.C. § 3601 et seq., commonly known as the Fair Housing Act of 1968 (Act), broadly prohibits discrimination in housing throughout the Nation. This case presents both statutory and constitutional questions concerning standing to sue under Title VIII.
2
* Petitioners in this case are two real estate brokerage firms, Gladstone, Realtors (Gladstone), and Robert A. Hintze, Realtors (Hintze), and nine of their employees. Respondents are the village of Bellwood, a municipal corporation and suburb of Chicago, one Negro and four white residents of Bellwood, and one Negro resident of neighboring Maywood. During the fall of 1975, the individual respondents and other persons consulted petitioners, stating that they were interested in purchasing homes in the general suburban area of which Bellwood is a part. The individual respondents were not in fact seeking to purchase homes, but were acting as "testers" in an attempt to determine whether petitioners were engaging in racial "steering," i. e., directing prospective home buyers interested in equivalent properties to different areas according to their race.
3
In October 1975, respondents commenced an action under § 812 of the Act, 42 U.S.C. § 3612,1 against Gladstone and its employees in the District Court for the Northern District of Illinois, alleging that they had violated § 804 of Title VIII, 42 U.S.C. § 3604.2 Simultaneously, respondents filed a virtually identical complaint against Hintze and its salespeople in the same court. The complaints, as illuminated by subsequent discovery, charged that petitioners had steered prospective Negro home buyers toward an integrated area of Bellwood approximately 12 by 13 blocks in dimension and away from other, predominately white areas. White customers, by contrast, allegedly were steered away from the integrated area of Bellwood. Four of the six individual respondents reside in this "target" area of Bellwood described in the complaint.3 The complaints further alleged that the "Village of Bellwood . . . has been injured by having [its] housing market . . . wrongfully and illegally manipulated to the economic and social detriment of the citizens of [the] village," and that the individual respondents "have been denied their right to select housing without regard to race and have been deprived of the social and professional benefits of living in an integrated society." App. 6, 99. Respondents requested monetary, injunctive, and declaratory relief.
4
Petitioners moved for summary judgment in both cases, arguing that respondents had "no actionable claim or standing to sue" under the statutes relied upon in the complaint, that there existed "no case or controversy between the parties within the meaning of Article III of the Constitution," and that respondents failed to satisfy the prudential requirements for standing applicable in the federal courts. Id., at 78, 143. The District Judge presiding over the case against Gladstone and its employees decided that respondents were not within the class of persons to whom Congress had extended the right to sue under § 812. The court expressly adopted the reasoning of TOPIC v. Circle Realty, 532 F.2d 1273 (CA9 1976), a case involving facts similar to those here. In TOPIC the Ninth Circuit decided that Congress intended to limit actions under § 812 of the Act to "direct victims" of Title VIII violations, even though under Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), standing under § 8104 of the Act, 42 U.S.C. § 3610, extends to the broadest class of plaintiffs permitted by Art. III. Since the individual respondents had been acting only as testers and thus admittedly had not been steered away from any homes they might have wished to purchase, the court concluded that they were, at most, only indirect victims of Gladstone's alleged violations of the Act. As respondents' action was brought under § 812, the court ruled that they lacked standing under the terms of the Act. The court did not discuss Gladstone's contention that respondents lacked standing under Art. III and the prudential limitations on federal jurisdiction. The District Judge presiding over the case against Hintze adopted the opinion of the Gladstone court as his own and also granted summary judgment.
5
The Court of Appeals for the Seventh Circuit consolidated the cases for appellate review. It first considered the significance of the fact that the individual respondents were merely testers not genuinely interested in purchasing homes. The court noted that while this precluded respondents from arguing that they had been denied their right to select housing without regard to race, "the testers did . . . generate evidence suggesting the perfectly permissible inference that [petitioners] have been engaging, as the complaints allege, in the practice of racial steering with all of the buyer prospects who come through their doors." 569 F.2d 1013, 1016 (1978) (emphasis in original). Thus, although the individual respondents lacked standing in their capacity as testers, they were entitled to prove that the discriminatory practices documented by their testing deprived them, as residents of the adversely affected area, "of the social and professional benefits of living in an integrated society."
6
The Court of Appeals then turned to the question whether the Art. III minima for standing had been satisfied. Observing the similarity between the allegations of injury here and those accepted as constitutionally sufficient in Trafficante, it concluded that the individual respondents had presented a case or controversy within the meaning of Art. III. The court also read the complaints as alleging economic injury to the village itself as a consequence of the claimed racial segregation of a portion of Bellwood. Although this aspect of the case was not directly controlled by Trafficante, the court found that the requirements of Art. III had been satisfied.5
7
Having concluded that a case or controversy within the meaning of Art. III was before it, the Court of Appeals addressed the District Court's ruling that § 812 of the Act, unlike § 810, affords standing only to those directly injured by the discriminatory acts challenged. After considering the legislative history and recent federal-court decisions construing these provisions, the court concluded, contrary to the decision in TOPIC v. Circle Realty, supra, that §§ 810 and 812 provide alternative remedies available to precisely the same class of plaintiffs. The conclusion of this Court in Trafficante that standing under § 810 extends " 'as broadly as is permitted by Article III of the Constitution,' " 409 U.S., at 209, 93 S.Ct., at 367, quoting Hackett v. McGuire Bros., Inc., 445 F.2d 442, 446 (CA3 1971), was seen as applicable to these cases brought under § 812. The Court of Appeals reversed the judgments of the District Court and remanded for further proceedings.
8
Petitioners sought review in this Court. We granted certiorari to resolve the conflict between the decision of the Court of Appeals in this case and that of the Ninth Circuit in TOPIC, and to consider the important questions of standing raised under Title VIII of the Civil Rights Act of 1968. 436 U.S. 956, 98 S.Ct. 3068, 57 L.Ed.2d 1120 (1978). With the limitation noted in n. 25, infra, we now affirm.
II
9
In recent decisions, we have considered in some detail the doctrine of standing in the federal courts. "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise. . . . In both dimensions it is founded in concern about the proper—and properly limited—role of the courts in a democratic society." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).
10
The constitutional limits on standing eliminate claims in which the plaintiff has failed to make out a case or controversy between himself and the defendant. In order to satisfy Art. III, the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 260-261, 97 S.Ct. 555, 560-561, 50 L.Ed.2d 450 (1977); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Warth v. Seldin, supra 422 U.S., at 499, 95 S.Ct., at 2205; Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). Otherwise, the exercise of federal jurisdiction "would be gratuitous and thus inconsistent with the Art. III limitation." Simon v. Eastern Kentucky Welfare Rights Org., supra, 426 U.S., at 38, 96 S.Ct., at 1924.
11
Even when a case falls within these constitutional boundaries, a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim. For example, a litigant normally must assert an injury that is peculiar to himself or to a distinct group of which he is a part, rather than one "shared in substantially equal measure by all or a large class of citizens." Warth v. Seldin, 422 U.S., at 499, 95 S.Ct., at 2205. He also must assert his own legal interests rather than those of third parties.6 Ibid. Accord, Arlington Heights v. Metropolitan Housing Dev. Corp., supra, 429 U.S., at 263, 97 S.Ct., at 561.
12
Congress may, by legislation, expand standing to the full extent permitted by Art. III, thus permitting litigation by one "who otherwise would be barred by prudential standing rules." Warth v. Seldin, 422 U.S., at 501, 95 S.Ct., at 2206. In no event, however, may Congress abrogate the Art. III minima: A plaintiff must always have suffered "a distinct and palpable injury to himself," ibid., that is likely to be redressed if the requested relief is granted. Simon v. Eastern Kentucky Welfare Rights Org., supra, 426 U.S., at 38, 96 S.Ct., at 1924.
III
13
Petitioners have insisted throughout this litigation that respondents lack standing under the terms of the Act. Their argument, which was accepted by the District Court, is that while § 810 provides standing to the fullest extent permitted by Art. III, see Trafficante v. Metropolitan Life Ins. Co., 409 U.S., at 209, 93 S.Ct., at 366, § 812, under which respondents proceed, affords standing only to "direct victims" of the conduct proscribed by Title VIII. Respondents, on the other hand, argue that the Court of Appeals correctly concluded that §§ 810 and 812 are alternative remedies available to precisely the same class of plaintiffs. The issue is a critical one, for if the District Court correctly understood and applied § 812, we do not reach the question whether the minimum requirements of Art. III have been satisfied. If the Court of Appeals is correct, however, then the constitutional question is squarely presented.7
14
Petitioners' argument centers on two points. First, § 810 uses the term "person aggrieved," defined as "[a]ny person who claims to have been injured by a discriminatory housing practice," to describe those who may seek relief under that section. By contrast, § 812 lacks this broad definition of potential plaintiffs, referring explicitly only to civil suits brought to enforce the rights granted elsewhere in the Act. Second, under § 810 a plaintiff must first seek informal conciliation of housing discrimination disputes from the Department of Housing and Urban Development (HUD) and appropriate state agencies before pursuing a judicial remedy. See n. 4, supra. But under § 812 a complainant may proceed directly to federal court.
15
From these facts, petitioners infer a congressional plan to create two distinct, though overlapping, remedial avenues under Title VIII. Under § 810, they argue, Congress intended to reach all victims—both direct and indirect—of housing discrimination by referring generally to those "aggrieved." But in order to protect the courts from the volume of litigation such plaintiffs might generate, to make available the administrative expertise of state and federal agencies, and to involve state and local governments in national fair housing goals, Congress interposed administrative remedies as a prerequisite to the invocation of the federal judicial power by "indirect victims" of Title VIII violations.
16
Since § 812 does not specifically refer to "persons aggrieved" and allows direct access to the courts by those invoking it, petitioners argue that Congress must have intended this provision to be available only to those most in need of a quick, authoritative solution: those directly victimized by a wrongful refusal to rent or sell a dwelling place or by some other violation of the Act. The construction of § 812 accepted by the Court of Appeals, they contend, is illogical because it would permit a plaintiff simply to ignore, at his option, the scheme of administrative remedies set up in § 810. Thus, according to petitioners, "direct victims" may proceed under either § 810 or § 812, while those injured only indirectly by housing discrimination may proceed, if at all, under the former provision alone.
17
Finally, petitioners claim that the legislative history of the Act supports their view. That history reflects that Congress was concerned that Title VIII not be used as an instrument of harassment.8 Petitioners contend that permitting individuals such as respondents, who have not been harmed directly by petitioners' alleged conduct, to invoke § 812 provides substantial opportunity for abuse of that kind.
18
We find this construction of Title VIII to be inconsistent with the statute's terms and its legislative history. Nothing in the language of § 812 suggests that it contemplates a more restricted class of plaintiffs than does § 810. The operative language of § 812 is phrased in the passive voice—"[t]he rights granted by sectio[n] 804 . . . may be enforced by civil actions in appropriate United States district courts"—simply avoiding the need for a direct reference to the potential plaintiff. The absence of "person aggrieved" in § 812, therefore, does not indicate that standing is more limited under that provision than under § 810. To the contrary, § 812 on its face contains no particular statutory restrictions on potential plaintiffs.9
19
Contrary to petitioners' contention, § 810 is not structured to keep complaints brought under it from reaching the federal courts, or even to assure that the administrative process runs its full course. Section 810(d) appears to give a complainant the right to commence an action in federal court whether or not the Secretary of HUD completes or chooses to pursue conciliation efforts.10 Thus, a complainant under § 810 may resort to federal court merely because he is dissatisfied with the results or delays of the conciliatory efforts of HUD.11 The most plausible inference to be drawn from Title VIII is that Congress intended to provide all victims of Title VIII violations two alternative mechanisms by which to seek redress: immediate suit in federal district court, or a simple, inexpensive, informal conciliation procedure, to be followed by litigation should conciliation efforts fail.12
20
Although the legislative history gave little help in determining the proper scope of standing under § 810, see Trafficante, 409 U.S., at 210, 93 S.Ct., at 367, it provides substantial and rather specific support for the view that §§ 810 and 812 are available to precisely the same class of plaintiffs.13 Early legislative proposals for fair housing legislation contained no administrative remedies.14 The nonjudicial avenue of relief was later added on the theory that it would provide a more expeditious and less burdensome method of resolving housing complaints.15 There is no evidence that Congress intended to condition access to the courts on a prior resort to the federal agency. To the contrary, the history suggests that all Title VIII complainants were to have available immediate judicial review. The alternative, administrative remedy was then offered as an option to those who desired to use it.
21
This apparently was the understanding of Representative Celler who, as chairman of the House Judiciary Committee, summarized the Act on the floor of the House.16 Similar perceptions were reflected in reports on the proposed legislation by the Department of Justice17 and the House Judiciary Committee.18 HUD, the federal agency primarily assigned to implement and administer Title VIII, consistently has treated §§ 810 and 812 as alternative remedial provisions.19 Under familiar principles, seeTeamsters v. Daniel, 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 800 n. 20, 58 L.Ed.2d 808 (1979); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), and as we stated in Trafficante, supra, 409 U.S., at 210, 93 S.Ct., at 367, the agency's interpretation of the statute ordinarily commands considerable deference.
22
Petitioners have identified nothing in the legislative history contrary to this view. Their reliance on the expressed intent that Title VIII not be used for harassment is unconvincing. Nowhere does the history of the Act suggest that Congress attempted to deter possible harassment by limiting standing under § 812. Indeed, such an attempt would have been pointless, given the relatively easy access to the courts provided by § 810.20
23
Most federal courts that have considered the issue agree that §§ 810 and 812 provide parallel remedies to precisely the same prospective plaintiffs. E. g., Wheatley Heights Neighborhood Coalition v. Jenna Resales Co., 429 F.Supp. 486, 489-492 (E.D.N.Y.1977); Village of Park Forest v. Fairfax Realty, P-H 1 EOHC ¶ 13,699, pp. 14,467-14,468 (N.D.Ill.1975); Fair Housing Council v. Eastern Bergen County Multiple Listing Serv., Inc., 422 F.Supp. 1071, 1081-1083 (N.J.1976). See also Howard v. W. P. Bill Atkinson Enterprises, 412 F.Supp. 610, 611 (W.D.Okl.1975); Miller v. Poretsky, 409 F.Supp. 837, 838 (D.C.1976); Young v. AAA Realty Co., 350 F.Supp. 1382, 1384-1385 (M.D.N.C.1972); Crim v. Glover, 338 F.Supp. 823, 825 (S.D.Ohio 1972); Johnson v. Decker, 333 F.Supp. 88, 90-92 (N.D.Cal.1971); Brown v. Lo Duca, 307 F.Supp. 102, 103-104 (E.D.Wis.1969). The notable exception is the Ninth Circuit in TOPIC v. Circle Realty, 532 F.2d 1273 (1976), upon which petitioners rely. For the reasons stated, we believe that the Court of Appeals in this case correctly declined to follow TOPIC. Standing under § 812, like that under § 810, is " 'as broa[d] as is permitted by Article III of the Constitution.' " Trafficante, 409 U.S., at 209, 93 S.Ct., at 367.21
IV
24
We now consider the standing of the village of Bellwood and the individual respondents in light of Art. III. We "accept as true all material allegations of the complaint, and . . . construe the complaint in favor of the complaining party," Warth v. Seldin, 422 U.S., at 501, 95 S.Ct., at 2206, as standing was challenged largely on the basis of the pleadings.22
25
The gist of Bellwood's complaint is that petitioners' racial steering effectively manipulates the housing market in the described area of the village: Some whites who otherwise would purchase homes there do not do so simply because petitioners refrain from showing them what is available; conversely, some Negroes purchase homes in the affected area solely because petitioners falsely lead them to believe that no suitable homes within the desired price range are available elsewhere in the general area. Although the complaints are more conclusory and abbreviated than good pleading would suggest, construed favorably to Bellwood they allege that this conduct is affecting the village's racial composition, replacing what is presently an integrated neighborhood with a segregated one.
26
The adverse consequences attendant upon a "changing" neighborhood can be profound. If petitioners' steering practices significantly reduce the total number of buyers in the Bellwood housing market, prices may be deflected downward. This phenomenon would be exacerbated if perceptible increases in the minority population directly attributable to racial steering precipitate an exodus of white residents. Cf. Zuch v. Hussey, 394 F.Supp. 1028, 1030, 1054 (E.D.Mich.1975), order aff'g and remanding, 547 F.2d 1168 (CA6 1977); Barrick Realty, Inc. v. City of Gary, 354 F.Supp. 126, 135 (N.D.Ind.1973), aff'd, 491 F.2d 161 (CA7 1974); United States v. Mitchell, 335 F.Supp. 1004, 1005 (N.D.Ga.1971), aff'd sub nom. United States v. Bob Lawrence Realty, Inc., 474 F.2d 115 (CA5), cert. denied, 414 U.S. 826, 94 S.Ct. 131, 38 L.Ed.2d 59 (1973).23 A significant reduction in property values directly injures a municipality by diminishing its tax base, thus threatening its ability to bear the costs of local government and to provide services. Other harms flowing from the realities of a racially segregated community are not unlikely.24 As we have said before, "[t]here can be no question about the importance" to a community of "promoting stable, racially integrated housing." Linmark Associates, Inc. v. Willingboro Tp., 431 U.S. 85, 94, 97 S.Ct. 1614, 1619, 52 L.Ed.2d 155 (1977). If, as alleged, petitioners' sales practices actually have begun to rob Bellwood of its racial balance and stability, the village has standing to challenge the legality of that conduct.
B
27
The individual respondents appeared before the District Court in two capacities. First, they and other individuals had acted as testers of petitioners' sales practices. In this Court, however, respondents have not pressed the claim that they have standing to sue as testers, see Brief for Respondents 14-15, and we therefore do not reach this question. Second, the individual respondents claimed to be injured as homeowners in the community against which petitioners' alleged steering has been directed. It is in this capacity that they claim standing to pursue this litigation.
28
Four of the individual respondents actually reside within the target area of Bellwood. They claim that the transformation of their neighborhood from an integrated to a predominantly Negro community is depriving them of "the social and professional benefits of living in an integrated society." This allegation is similar to that presented in Trafficante. In that case, a Negro and a white resident of a large apartment complex in San Francisco complained that the landlord's exclusion of nonwhites from the complex stigmatized them as residents of a "white ghetto" and deprived them of the social and professional advantages of living in an integrated community. Noting the importance of the "benefits from interracial associations," 409 U.S., at 210, 93 S.Ct., at 367, and in keeping with the Court's recent statement that noneconomic injuries may suffice to provide standing, Sierra Club v. Morton, 405 U.S. 727, 734-735, 92 S.Ct. 1361, 1365-1366, 31 L.Ed.2d 636 (1972), we concluded that this injury was sufficient to satisfy the constitutional standing requirement of actual or threatened harm.
29
Petitioners argue that Trafficante is distinguishable because the complainants in that case alleged harm to the racial character of their "community," whereas respondents refer only to their "society." Reading the complaints as a whole, and remembering that we encounter these allegations at the pleading stage, we attach no particular significance to this difference in word choice. Although an injury to one's "society" arguably would be an exceptionally generalized harm or, more important for Art. III purposes, one that could not conceivably be the result of these petitioners' conduct, we are obliged to construe the complaint favorably to respondents, against whom the motions for summary judgment were made in the District Court. So construed, and read in context, the allegations of injury to the individual respondents' "society" refer to the harm done to the residents of the carefully described neighborhood in Bellwood in which four of the individual respondents reside.25 The question before us, therefore, is whether an allegation that this particular area is losing its integrated character because of petitioners' conduct is sufficient to satisfy Art. III.26
30
Petitioners suggest that there is a critical distinction between an apartment complex, even one as large as that in Trafficante,27 and a 12- by 13-block residential neighborhood. Although there are factual differences, we do not view them as controlling in this case. We note first that these differences arguably may run in favor of standing for the individual respondents, according to how one views his living environment. Apartment dwellers often are more mobile, with less attachment to a community as such, and thus are able to react more quickly to perceived social or economic changes. The homeowner in a suburban neighborhood such as Bellwood may well have deeper community attachments and be less mobile. Various inferences may be drawn from these and other differences, but for the purpose of standing analysis, we perceive no categorical distinction between injury from racial steering suffered by occupants of a large apartment complex and that imposed upon residents of a relatively compact neighborhood such as Bellwood.28
31
The constitutional limits of respondents' standing to protest the intentional segregation of their community do not vary simply because that community is defined in terms of city blocks rather than apartment buildings. Rather, they are determined by the presence or absence of a "distinct and palpable injury," Warth v. Seldin, 422 U.S., at 501, 95 S.Ct., at 2206, to respondents resulting from petitioners' conduct. A "neighborhood" whose racial composition allegedly is being manipulated may be so extensive in area, so heavily or even so sparsely populated, or so lacking in shared social and commercial intercourse that there would be no actual injury to a particular resident. The presence of a genuine injury should be ascertainable on the basis of discrete facts presented at trial.29
32
In addition to claiming the loss of social and professional benefits to the individual respondents, the complaints fairly can be read as alleging economic injury to them as well.30 The most obvious source of such harm would be an absolute or relative diminution in value of the individual respondents' homes. This is a fact subject to proof before the District Court, but convincing evidence that the economic value of one's own home has declined as a result of the conduct of another certainly is sufficient under Art. III to allow standing to contest the legality of that conduct.
V
33
We conclude that the facts alleged in the complaints and revealed by initial discovery are sufficient to provide standing under Art. III. It remains open to petitioners, of course, to contest these facts at trial.31 The adequacy of proof of respondents' standing is not before us, and we express no views on it.32 We hold only that the summary judgments should not have been entered on the records before the District Court, except with respect to respondents Perry and Sharp. See n. 25, supra. Subject to this exception, the judgment of the Court of Appeals is affirmed.33
34
So ordered.
35
Mr. Justice REHNQUIST, with whom Mr. Justice STEWART joins, dissenting.
36
Title VIII of the Civil Rights Act of 1968, 82 Stat. 81, as amended, 42 U.S.C. § 3601 et seq., which outlaws discrimination in virtually all aspects of the sale or rental of housing, provides two distinct and widely different routes into federal court. Under § 810, 42 U.S.C. § 3610,1 a "person aggrieved," that is, "[a]ny person who claims to have been injured by a discriminatory housing practice," may seek administrative relief from the Secretary of the Department of Housing and Urban Development and, if the Secretary cannot within 30 days resolve the dispute "by informal methods of conference, conciliation, and persuasion," may bring a civil action in federal district court. In Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), we held that the broad definition given to the term "person aggrieved" in § 810 evinced " 'a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.' " 409 U.S., at 209, 93 S.Ct., at 367.
37
The second route into federal court under Title VIII—§ 8122 provides simply that "[t]he rights granted by sections 803, 804, 805, and 806 of this title may be enforced by civil actions in appropriate United States district courts . . . ." 42 U.S.C. § 3612. Despite the absence from § 812 of the "person aggrieved" language so crucial to our holding in Trafficante regarding standing under § 810, the Court today holds that "[s]tanding under § 812, like that under § 810, is 'as broa[d] as is permitted by Article III of the Constitution.' " Ante, at 109, quoting Trafficante v. Metropolitan Life Ins. Co., supra, at 209, 93 S.Ct. at 366. I think that the Court's decision ignores the plain language of § 812 and makes nonsense out of Title VIII's formerly sensible statutory enforcement scheme.
38
* The doctrine of standing is comprised of both constitutional limitations on the jurisdiction of federal courts and prudential rules of self-restraint designed to bar from federal court those parties who are ill-suited to litigate the claims they assert. In its constitutional dimension, the standing inquiry asks whether the party before the court has " 'such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (emphasis in original), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The crucial elements of standing are injury in fact and causation. To demonstrate the "personal stake" in the litigation necessary to satisfy the Constitution, the party must suffer "a distinct and palpable injury," Warth v. Seldin, supra, 422 U.S., at 501, 95 S.Ct., at 2206, that bears a " 'fairly traceable' causal connection" to the challenged action. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978), quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). Accordingly, when an objection to a party's standing to litigate in federal court is constitutionally based, "the relevant inquiry is whether . . . the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976).
39
A plaintiff who alleges sufficient injury to satisfy these minimum constitutional limitations on federal jurisdiction may nonetheless be barred from federal court under our prudential standing rules because he asserts a generalized grievance shared in substantially equal measure by all or a large class of citizens, Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), or because he seeks to "rest his claim to relief on the legal rights or interests of third parties" rather than his own. Warth v. Seldin, 422 U.S., at 499, 95 S.Ct., at 2205. These prudential rules, however, are subject to modification by Congress, which may grant to any person satisfying Art. III's minimum standing requirements a right "to seek relief on the basis of the legal rights and interests of others, and, indeed, [to] invoke the general public interest in support of [his] claim." Id., at 501, 95 S.Ct., at 2206. Congress did just that in enacting § 810 of Title VIII, which grants to "[a]ny person who claims to have been injured by a discriminatory housing practice" a right to seek federal administrative and judicial relief. In Trafficante, supra, we held that the broad definition given "person aggrieved" in § 810 indicated a congressional intent to accord apartment dwellers, who had not themselves suffered discrimination, an actionable right to be free from the adverse consequences flowing to them from racially discriminatory rental practices directed at third parties.3 Plaintiffs' alleged "loss of important benefits from interracial associations," 409 U.S., at 210, 93 S.Ct., at 367, was sufficient to satisfy the injury-in-fact requirement of Art. III.
40
In the case now before us, respondents—the village of Bellwood, five of its residents, and one resident of a neighboring community—brought suit against petitioner real estate firms, alleging that the firms had violated both 42 U.S.C. § 1982 and § 804 of Title VIII by "steering" prospective homebuyers to different areas in and around Bellwood according to their race. Like plaintiffs in Trafficante, the individual respondents allege that petitioners' practice of racial steering has deprived them of "the social and professional benefits of living in an integrated society."4 App. 6, 99. Respondent village of Bellwood alleges that it has been injured "by having [its] housing market . . . wrongfully and illegally manipulated to the economic and social detriment of [its] citizens." Ibid. Unlike plaintiffs in Trafficante, however, respondents have not proceeded under § 810 of Title VIII, choosing instead to travel the direct route into federal court provided by § 812.
In pertinent part, § 812 provides:
41
"The rights granted by sections 803, 804, 805, and 806 may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction." 82 Stat. 88, 42 U.S.C. § 3612(a).
42
The language of § 812 contains no indication that Congress intended to authorize the commencement of suits under Title VIII by persons who would otherwise be barred from federal court by prudential standing rules. Indeed, were § 812 the only method for enforcing Title VIII respondents—who were not themselves discriminated against by petitioners—could hardly argue that they were statutorily authorized to seek relief on the basis of legal rights and interests of third parties who had been racially "steered" into and away from certain areas in the community. The Court, however, in effect reads the broadly defined "person aggrieved" language of § 810 into § 812, holding that the alternative routes into federal court provided under the sections are available to precisely the same class of plaintiffs. The language and structure of Title VIII lead me to a contrary conclusion.
II
43
The term "person aggrieved" is used throughout § 810—no less than four times—to denominate the proper § 810 claimant;5 by contrast, in § 812 Congress wholly avoided use of this broadly defined term, preferring instead the familiar "plaintiff." Noting that § 812 is phrased in the passive voice, the Court concludes that the absence of the "person aggrieved" language from the provision "does not indicate that standing is more limited under that provision than under § 810." Ante, at 103 (emphasis added). The point of our decision in Trafficante, however, was that the presence of the "person aggrieved" language in § 810 demonstrated Congress' affirmative intent to abrogate prudential standing rules and to expand standing under the section to the full extent permitted by Art. III of the Constitution. It thus follows that the absence of "person aggrieved" from § 812 indicates that Congress did not intend to abrogate the normal prudential rules of standing with regard to § 812.
44
Consistent with § 810's broad grant of standing is the language chosen by Congress to define the scope of the civil action that may be brought under the section: "[T]he person aggrieved may . . . commence a civil action in any appropriate United States district court . . . to enforce the rights granted or protected by this title . . . ." 82 Stat. 86, 42 U.S.C. § 3610(d) (emphasis added). Section 812, in contrast, authorizes the commencement of a civil action to enforce only "[t]he rights granted by," as opposed to "rights granted or protected by," §§ 803, 804, 805, and 806. Clearly, Congress contemplated that § 812 suits could be instituted only by persons alleging injury to rights expressly secured under the enumerated sections.
45
Section 804, the provision allegedly offended by petitioners, provides in pertinent part:
46
"[I]t shall be unlawful—
47
"(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin.
48
"(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, or national origin.
49
* * * * *
50
"(d) To represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available." 82 Stat. 83, as amended, 88 Stat. 729, 42 U.S.C. § 3604.
51
In essence, § 804 grants to all persons6 seeking housing the right not to be discriminated against on the basis of race, color, religion, sex, or national origin. Nowhere in the section are the individual respondents granted a right to reap the "social and professional benefits of living in an integrated society." Nor does § 804 grant the village of Bellwood an actionable right not to have its housing market "wrongfully and illegally manipulated." Accordingly, respondents have suffered no injury to "rights granted by [§ 804]."
52
The structure of both § 810 and § 812 and the significant differences between the two enforcement provisions further support the conclusion that Congress intended to restrict access to federal courts under § 812 to a more limited class of plaintiffs than that contemplated under § 810. A "person aggrieved," proceeding under § 810, must first file a complaint with the Secretary of Housing and Urban Development, who is authorized "to try to eliminate or correct the alleged discriminatory housing practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 3610(a). The Secretary, however, must defer to the appropriate state or local agency whenever state or local fair-housing laws provide rights and remedies substantially equivalent to those secured under Title VIII. The Secretary may recommence action on the complaint only upon certification that such action is necessary to protect the rights of the parties or the interests of justice. 42 U.S.C. § 3610(c). If the Secretary's informal efforts prove futile, the "person aggrieved" may commence a civil action under Title VIII in federal district court, but only if he has no comparable judicial remedy under "substantially equivalent" state or local fair-housing legislation. 42 U.S.C. § 3610(d).
53
The § 812 "plaintiff" is not similarly encumbered. He may proceed directly into federal court, deferring neither to the Secretary of Housing and Urban Development nor to state administrative and judicial processes. See 42 U.S.C. § 3612(a). The District Court is authorized to appoint an attorney for the § 812 plaintiff and to waive payment of fees, costs, and security. 42 U.S.C. § 3612(b). Additionally, broader relief is available under § 812. The "prevailing plaintiff" may be awarded a "permanent or temporary injunction, temporary restraining order, or other order, and . . . actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees . . . ." 42 U.S.C. § 3612(c). Section 810, by contrast, makes no allowance for damages, costs, or counsel fees, limiting the victorious claimant to injunctive relief and such other affirmative action as may be appropriate. 42 U.S.C. § 3610(d). Nor does § 812 contain a provision similar to § 810(e), which provides that "[i]n any proceeding brought pursuant to [§ 810], the burden of proof shall be on the complainant." Given the advantages to the claimant of proceeding under § 812, it is hard to imagine why anyone would voluntarily proceed under § 810 if both routes were equally available.
54
When the carefully chosen language and the widely variant provisions of § 810 and § 812 are thus compared, the logic of Title VIII's private enforcement mechanism becomes clear. Immediate access to federal judicial power under § 812 was reserved to those directly victimized by a discriminatory housing practice; that is, those actually discriminated against on the basis of race, color, religion, sex, or national origin. Only direct victims of housing discrimination were deemed to suffer injuries of sufficient magnitude to authorize appointment of counsel and recovery of compensatory and punitive damages, costs, and attorney fees. But because discrimination in housing can injure persons other than the direct objects of the discrimination, Trafficante, 409 U.S., at 210, 93 S.Ct., at 367, Congress believed that the statute's fair-housing goals would be served by extending standing under § 810 as broadly as constitutionally permissible. Anyone claiming to have been injured by a discriminatory housing practice, even if not himself directly discriminated against, is authorized to seek redress under § 810. By barring indirect victims of housing discrimination from immediate access to federal court under § 812, and thus requiring them to exhaust federal conciliation procedures as well as viable state and local remedies pursuant to § 810, Congress sought to facilitate informal resolution of Title VIII disputes, to avoid federal judicial intervention when possible, and to encourage state and local involvement in the effort to eliminate housing discrimination.
55
The legislative history of Title VIII, while "not too helpful," Trafficante, supra, at 210, 93 S.Ct., at 367, supports the view that standing to commence a civil action under § 812 is limited to direct victims of housing discrimination. Introduced on the Senate floor and approved unchanged by the House, Title VIII's legislative history must be culled primarily from the Congressional Record. The brief debate preceding adoption of Amendment No. 586, which amended § 810 to require exhaustion of "substantially equivalent" remedies under state or local fair-housing laws as a prerequisite to the filing of a Title VIII action in federal court, is particularly enlightening. Senator Miller, who introduced the amendment, explained:
56
"I provide in the second part of my amendment that no civil action may be brought in any U. S. District Court if the person aggrieved has a judicial remedy under a State or local fair housing law which provides substantially equivalent rights and remedies to this act.
57
"I believe it is a matter of letting the State and local courts have jurisdiction. We in the Senate know that our Federal district court calendars are crowded enough, without adding to that load if there is a good remedy under State law." 114 Cong.Rec. 4987 (1968).
58
Senator Hart added that the amendment "recognizes the desire all of us share that the State remedies, where adequate, be availed of and that unnecessary burdening litigation not further clog the court calendars." Ibid. It seems unlikely that Congress would wholly frustrate the concerns moving it to adopt § 810's exhaustion requirement by opening § 812's direct route into federal court to all "persons aggrieved."
59
The debate concerning the allowance of attorney's fees to prevailing plaintiffs under § 812 also indicates a congressional understanding that standing to proceed immediately into federal court under § 812 was limited to discriminatees. Senator Hart commented that §§ 812(b) and (c)—which authorize the district court to waive payment of fees, costs, and security in appropriate cases and to award damages, court costs, and reasonable attorney fees to prevailing plaintiffs—"reveal a clear congressional intent to permit, and even encourage, litigation by those who cannot afford to redress specific wrongs aimed at them because of the color of their skin." 114 Cong.Rec. 5514-5515 (1968) (emphasis added).
60
The meager legislative history marshaled by the Court provides at best thin support for its expansive interpretation of standing under § 812. References in the legislative history describing § 812 as an "addition[al]" and "alternative" remedial provision to § 810, ante, at 106, and nn. 16, 17, and 18, are hardly dispositive: one need only read the two sections to conclude that they provide "alternative" enforcement mechanisms. That § 810 and § 812 are "alternative" remedial provisions does not, however, compel the conclusion that they are equally available to all potential Title VIII claimants. The only piece of legislative history arguably supporting the Court's interpretation of § 812 is the House Judiciary Committee staff's use of the term "aggrieved person" to refer to potential § 812 plaintiffs. Ante, at n. 18. This single, fleeting reference in the legislative history hardly seems sufficient to overwhelm the contrary indications of congressional intent found elsewhere in Title VIII's legislative history and in the carefully worded and structured provisions of § 810 and § 812.
61
I think that Trafficante pushed standing to the limit in construing the "person aggrieved" language of § 810. I cannot join the Court in pressing the more narrowly confined language of § 812 to the same limit.
III
62
Respondents also claim standing under 42 U.S.C. § 1982, which provides: "All citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property." Unlike Title VIII, "§ 1982 is not a comprehensive open housing law." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968). Enacted as part of the Civil Rights Act of 1866, the section bars all racial discrimination, both private and public, in the sale or rental of property. Ibid.
63
It is clear that respondents have suffered no injury to the only right secured under § 1982—the right to be free from racially motivated interference with property rights. Their claim of standing under § 1982 is thus conceptually indistinguishable from a similar claim rejected by this Court in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Plaintiffs in Warth brought a § 1982 action against the town of Penfield, N.Y., and members of its Zoning, Planning, and Town Boards, claiming that the town's zoning ordinance effectively excluded persons of minority racial and ethnic groups. One of the plaintiffs, a nonprofit corporation organized to alleviate the housing shortage for low- and moderate-income persons in and around Penfield, based its standing to challenge the zoning ordinance on the loss to its members residing in Penfield of the "benefits of living in a racially and ethnically integrated community." 422 U.S., at 512, 95 S.Ct., at 2212. This Court rejected plaintiffs' claim of standing, distinguishing Trafficante on the ground that § 1982, unlike § 810 of Title VIII, does not give residents of certain communities an actionable right to be free from the adverse consequences of racially discriminatory practices directed at and immediately harmful to others. Thus, we held plaintiffs' "attempt to raise putative rights of third parties," 422 U.S., at 514, 95 S.Ct., at 2213, barred by the prudential rules of standing.
64
Like plaintiffs in Warth, respondents claim that they have been injured by racially discriminatory acts practiced on others. Thus, their claim of standing under § 1982 must also fail.
65
Because I think that respondents have no standing to litigate claims under 42 U.S.C. § 1982 and § 812 of the Civil Rights Act of 1968, I would reverse the judgment of the Court of Appeals.
1
Section 812 provides in part:
"(a) The rights granted by sections 803, 804, 805, and 806 may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction."
2
Section 804 provides:
"As made applicable by section 803 and except as exempted by sections 803(b) and 807, it shall be unlawful—
"(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin.
"(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, or national origin.
"(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, or national origin, or an intention to make any such preference, limitation, or discrimination.
"(d) To represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
"(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, or national origin." 82 Stat. 83, as amended, 88 Stat. 729.
Respondents also claimed that petitioners had violated 42 U.S.C. § 1982.
3
Respondent Perry is a resident of Bellwood, but lives outside the area allegedly affected by petitioners' steering practices. Respondent Sharp lives in Maywood. These respondents are Negroes.
4
Section 810 provides in part:
"(a) Any person who claims to have been injured by a discriminatory housing practice or who believes that he will be irrevocably injured by a discriminatory housing practice that is about to occur (hereafter 'person aggrieved') may file a complaint with the Secretary [of HUD]. . . . Within thirty days after receiving a complaint, or within thirty days after the expiration of any period of reference under subsection (c), the Secretary shall investigate the complaint and give notice in writing to the person aggrieved whether he intends to resolve it. If the Secretary decides to resolve the complaint, he shall proceed to try to eliminate or correct the alleged discriminatory housing practice by informal methods of conference, conciliation, and persuasion. . . .
* * * * *
"(c) Wherever a State or local fair housing law provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in this title, the Secretary shall notify the appropriate State or local agency of any complaint filed under this title which appears to constitute a violation of such State or local fair housing law, and the Secretary shall take no further action with respect to such complaint if the appropriate State or local law enforcement official has, within thirty days from the date the alleged offense has been brought to his attention, commenced proceedings in the matter, or, having done so, carries forward such proceedings with reasonable promptness. In no event shall the Secretary take further action unless he certifies that in his judgment, under the circumstances of the particular case, the protection of the rights of the parties or the interests of justice require such action.
"(d) If within thirty days after a complaint is filed with the Secretary or within thirty days after expiration of any period of reference under subsection (c), the Secretary has been unable to obtain voluntary compliance with this title, the person aggrieved may, within thirty days thereafter, commence a civil action in any appropriate United States district court, against the respondent named in the complaint, to enforce the rights granted or protected by this title, insofar as such rights relate to the subject of the complaint: Provided, That no such civil action may be brought in any United States district court if the person aggrieved has a judicial remedy under a State or local fair housing law which provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in this title. . . ." 82 Stat. 85.
5
The Court of Appeals agreed with the District Court that the Leadership Council for Metropolitan Open Communities, also a plaintiff in the two actions in the District Court, lacked standing. 569 F.2d, at 1017. That ruling has not been challenged in this Court.
6
There are other nonconstitutional limitations on standing to be applied in appropriate circumstances. See, e. g., Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 n. 19, 96 S.Ct. 1917, 1925 n. 19, 48 L.Ed.2d 450 (1976) ("the interest of the plaintiff, regardless of its nature in the absolute, [must] at least be 'arguably within the zone of interests to be protected or regulated' by the statutory framework within which his claim arises," quoting Data Processing Service v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1969)).
7
It is not clear whether our opinion in Trafficante was intended to construe § 812 as well as § 810. Although certain intervening plaintiffs in that case asserted standing under § 812, but not § 810, see Trafficante v. Metropolitan Life Ins. Co., 322 F.Supp. 352, 353 (N.D.Cal.), aff'd, 446 F.2d 1158, 1161 n. 5 (CA9 1971), and the Court failed to disclaim a decision on the former provision, the opinion focuses exclusively on § 810. Rather than attempt to reconstruct whatever understanding of the relationship between §§ 810 and 812 might have been implicit in Trafficante, we consider the merits of this important statutory question directly.
8
This concern was expressed clearly in connection with an amendment to § 804 proposed by Senator Allott. See 114 Cong.Rec. 5515 (1968).
9
Both petitioners and the dissenting opinion, post, at 124, emphasize the language of § 812 that "[t]he rights granted by sectio[n] 804 . . . may be enforced by civil actions . . .." See n. 1, supra. They argue that since § 804 on its face grants no right to have one's community protected from the harms of racial segregation, respondents have no substantive rights to enforce under § 812.
That respondents themselves are not granted substantive rights by § 804, however, hardly determines whether they may sue to enforce the § 804 rights of others. See supra, at 99-100. If, as is demonstrated in the text, Congress intended standing under § 812 to extend to the full limits of Art. III, the normal prudential rules do not apply; as long as the plaintiff suffers actual injury as a result of the defendant's conduct, he is permitted to prove that the rights of another were infringed. The central issue at this stage of the proceedings is not who possesses the legal rights protected by § 804, but whether respondents were genuinely injured by conduct that violates someone's § 804 rights, and thus are entitled to seek redress of that harm under § 812.
10
The lower federal courts are divided over the question whether a Title VIII complainant who has enlisted the aid of HUD under § 810 must commence the civil action referred to in § 810(d) no later than 60 days after the filing of his administrative complaint, even if HUD has not completed its conciliatory efforts by that time. Several courts believe the plain language of § 810(d), see n. 4, supra, requires this result. Green v. Ten Eyck, 572 F.2d 1233, 1240-1243 (CA8 1978); Tatum v. Myrick, 425 F.Supp. 809, 810-812 (M.D.Fla.1977); Sumlin v. Brown, 420 F.Supp. 78, 80-82 (N.D.Fla.1976); Brown v. Blake & Bane, Inc., 402 F.Supp. 621, 622 (E.D.Va.1975); Young v. AAA Realty Co., 350 F.Supp. 1382, 1385-1387 (M.D.N.C.1972). Others, following HUD's interpretation of § 810(d), see 24 CFR §§ 105.16(a), 105.34 (1978), believe that the only time limitation on one who has properly complained to HUD is that a civil action be commenced within 30 days of notice of HUD's failure to negotiate a settlement. Logan v. Richard E. Carmack & Assoc., 368 F.Supp. 121, 122-123 (E.D.Tenn.1973); Brown v. Ballas, 331 F.Supp. 1033, 1036 (N.D.Tex.1971). This case does not require us to resolve this conflict, and we express no views on it. But regardless of which position is correct, it is clear that § 810 does not serve as a screening mechanism to deflect certain classes of Title VIII grievances from the federal courts.
11
Section 810 does appear to restrict access to the federal courts in one respect not paralleled by § 812. To the extent state or local remedies prove adequate, a complainant under § 810 is required to pursue them. Thus, under § 810(c), the Secretary of HUD must suspend his conciliation efforts if local remedies providing protection equivalent to that of Title VIII are being carried forward by the appropriate public officials. Such deferral by the Secretary apparently delays the availability of judicial review under § 810(d). Section 810(d) also conditions the availability of its civil action on the absence of an equivalent state or local judicial remedy. Section 812 contains no such limitation.
We are convinced that neither these differences nor the variations between § 810 and § 812 relied upon by the dissent, see post, at 124-126, imply that § 810 is directed to a larger class of plaintiffs than is § 812. The legislative history, discussed in the text, contradicts any such suggestion. See infra, at 105-108, and n. 20.
12
It is instructive to compare the administrative remedy of § 810 with that provided by § 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. Under § 810(d), a complainant may simply bypass the conciliatory efforts of HUD by commencing a civil action, apparently without notice to the agency, 30 days after filing his complaint. Under § 706(f)(1), by contrast, a complainant must allow the Equal Employment Opportunity Commission a full 180 days to negotiate a settlement, and he must obtain a "right-to-sue" letter before proceeding in federal court. Moreover, under § 706(b), the EEOC is instructed to make a judgment on the merits of the administrative complaints it receives by dismissing those it does not have reasonable cause to believe are true. No such administrative statement on the merits of a § 810 complaint is required; the Secretary of HUD is asked only to indicate whether he "intends to resolve" a complaint. Finally, under § 706(f)(1), the EEOC may elect to bring suit itself, thereby preempting the individual complainant's right to commence the litigation and exercising important supervision over the conduct of the case. The Secretary of HUD enjoys no similar authority under § 810. From these and other differences between the two statutes, it is apparent that § 810, unlike § 706, does not provide an effective administrative buffer between the federal courts and individual complainants.
13
For a general review of the legislative history of Title VIII, see Dubofsky, Fair Housing: A Legislative History and a Perspective, 8 Washburn L.J. 149 (1969).
14
Three bills containing fair housing provisions were introduced in Congress in 1966: S. 3296, 89th Cong., 2d Sess.; H.R. 14770, 89th Cong., 2d Sess.; H.R. 14765, 89th Cong., 2d Sess. As introduced, they provided for judicial enforcement only.
15
Explaining the addition of administrative remedies to H.R. 14765, one of the bills introduced in 1966, Representative Conyers stated:
"Experience with comparable State and local agencies repeatedly has shown that the administrative process is quicker and fairer. It more quickly implements the rights of the person discriminated against and also quickly resolves frivolous and otherwise invalid complaints. Conciliation is easier in an informal administrative procedure than in the formal judicial process. Also individual court suits would place a greater burden of expense, time and effort on not only the plaintiff but on all other parties involved, including the seller, broker and mortgage financier, and on the judicial system itself." 112 Cong.Rec. 18402 (1966).
Fair housing legislation introduced in 1967 similarly provided for administrative relief, which again was justified in terms of its perceived advantages to litigants over judicial review. Hearings on S. 1358 et al. before the Subcommittee on Housing and Urban Affairs of the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 108 (testimony of Roy Wilkins, Executive Director, NAACP, and Chairman, Leadership Conference on Civil Rights).
The administrative remedies in the 1966 and 1967 proposals would have granted substantive enforcement powers to HUD. Although Title VIII, enacted in 1968, provided for only informal, conciliatory efforts by that agency, petitioners have identified nothing in the legislative history suggesting that the purpose for including an administrative avenue of relief had changed from that stated with respect to the 1966 and 1967 bills.
16
In describing the enforcement provisions of Title VIII, Representative Celler stated: "In addition to administrative remedies, the bill authorizes immediate civil suits by private persons within 180 days after the alleged discriminatory housing practice occurred . . .." 114 Cong.Rec. 9560 (1968).
17
The Justice Department report explained an amendment to the proposed Fair Housing Act offered by Senator Dirksen, which contained the enforcement provisions ultimately enacted as §§ 810 and 812. It states:
"In addition to the administrative remedy provided through the Department of Housing and Urban Development, the bill provides for an immediate right to proceed by civil action in an appropriate Federal or State court." 114 Cong.Rec. 4908 (1968).
18
The House Judiciary Committee Report states:
"Section 812 states what is apparently an alternative to the conciliation-then-litigation approach [of § 810]: an aggrieved person within 180 days after the alleged discriminatory practice occurred, may, without complaining to HUD, file an action in the appropriate U. S. district court." Id., at 9612 (emphasis added).
The use of the term "aggrieved person" to refer to potential plaintiffs under § 812, as well as the reference to the § 812 remedy as an alternative to that of § 810, indicates that the authors of this Report believed the two sections were intended to reach a single class of plaintiffs.
19
In its regulations describing the process of administrative conciliation under § 810, HUD provides that every "person aggrieved [who files a complaint with HUD] shall be notified of . . . his right to bring court action under sections 810 and 812." 24 CFR § 105.16(a) (1978). The regulations suggest no distinction between complainants under § 810 and plaintiffs under § 812.
In a handbook designed for internal agency use, § 812 is described as an "additional remed[y] for discriminatory housing practices [that] may be pursued concurrently with the complaint procedure [of § 810]." Department of Housing and Urban Development, Title VIII Field Operations Handbook 59 (1971).
20
Although the legislative history is not free from some ambiguity, we do not agree with the view of it taken by the dissenting opinion. See post, at 126-128. The fact that, under Senator Miller's amendment, Title VIII complainants choosing to avail themselves of the informal, administrative procedures under § 810 are required to exhaust state remedies equivalent to Title VIII does not compel any particular conclusion about the size of the class to which § 812 extends. It was not irrational for Congress to conclude that, even with its limited exhaustion requirement, the incentive of § 810's simple, inexpensive conciliation procedure, as opposed to the immediate commencement of a formal lawsuit in federal district court under § 812, would be an attractive alternative to many of those aggrieved under Title VIII. Thus, under our construction of § 812, the exhaustion requirement of § 810 is not rendered meaningless. Apart from the argument based on the Miller amendment, the dissent relies on nothing more than an isolated, rhetorical remark by one Senator. Nothing in the legislative history or the administrative practices of HUD affirmatively supports the view that standing under § 810 is not identical to that under § 812.
21
Petitioners argue that regardless of the scope of standing under § 812, the village of Bellwood cannot sue under that provision since it is not a "private person" as referred to in the caption to § 812.
The Court of Appeals noted that "[i]n a single sentence at oral argument, counsel for [petitioners] advanced the argument, not mentioned in their brief, that the Village lacks standing because it is not a 'person' as defined in [§ 802(d)]." 569 F.2d, at 1020 n. 8. The court rejected this contention, reasoning that the inclusion of "corporation" in the Act's definition of person encompassed municipal corporations such as Bellwood. Ibid. In this Court, petitioners have not argued that the village is not a "person," contending instead that it is not a "private person." Petitioners thus have presented a variant of the question raised belatedly in the Court of Appeals and given, perhaps deservedly, only cursory treatment there. Under these circumstances, the question whether Bellwood is a "private person" entitled to sue under § 812 is not properly before us, and we express no views on it.
22
In addition to the complaints, the records in these cases contain several admissions by respondents, answers to petitioners' interrogatories, and exhibits appended to those answers, including maps of Bellwood. As did the courts below and the parties themselves, we accept as true the facts contained in these discovery materials for the purposes of the standing issue.
23
Zuch and Mitchell were cases in which real estate brokers were accused of "blockbusting," i. e., exploiting fears of racial change by directly perpetuating rumors and soliciting sales in target neighborhoods. Respondents have not alleged that petitioners engaged in such unprincipled conduct, but the description in those cases of the reaction of some whites to a perceived influx of minority residents underscores the import of Bellwood's allegation that petitioners' sales practices threaten serious economic dislocation to the village.
24
It has been widely recognized, for example, that school segregation is linked closely to housing segregation. See, e. g., Lee v. Nyquist, 318 F.Supp. 710, 717 (W.D.N.Y.1970) (three-judge court), summarily aff'd, 402 U.S. 935, 91 S.Ct. 1618, 29 L.Ed.2d 105 (1971); National Advisory Commission on Civil Disorders, Report 237 (1968); 114 Cong.Rec. 2276 (1968) (remarks of Sen. Mondale).
25
As previously indicated, n. 3, supra, neither respondent Perry nor respondent Sharp resides within the target neighborhood of Bellwood. We read the complaints as claiming injury only to that area and its residents, and we are unable to find any allegations of harm to individuals residing elsewhere. On the record before us, we therefore conclude that summary judgment at to these two respondents was appropriate. We note, however, that the standing issue as framed by the District Court was simply whether respondents were direct, as opposed to indirect, victims of the steering practices of petitioners. Viewed in that context, it made no difference whether Perry and Sharp were residents of the target area or not, for they would be found to be without standing in either event. As stated in Part III, supra, the District Court's perception of the standing question was incorrect. Only upon reaching this Court has the failure of the complaints to make sufficient allegations as to these two individuals been put in issue clearly. Although we intimate no view as to whether persons residing outside of the target neighborhood have standing to sue under § 812 of Title VIII, we do not foreclose consideration of this question if, on remand, the District Court permits respondents Perry and Sharp to amend their complaints to include allegations of actual harm.
26
Apart from the use of "community" rather than "society," the complaint in Trafficante differed from those here in that it alleged that a segregated community was prevented from becoming integrated because of the defendant's conduct. Here, by contrast, respondents claim that an integrated neighborhood is becoming a segregated community because of petitioners' conduct. We find this difference unimportant to our analysis of standing. In both situations, the deprivation of the benefits of interracial associations constitutes the alleged injury.
27
The apartment complex in Trafficante housed 8,200 tenants. 409 U.S., at 206, 93 S.Ct., at 365. The population of Bellwood, of which the target neighborhood is only a part, was estimated at 20,969 in 1975. Department of Commerce, Bureau of the Census, Population Estimates and Projections, Series P-25, No. 661, p. Ill. 15 (1977).
28
See Shannon v. HUD, 305 F.Supp. 205, 208, 211 (E.D.Pa.1969), aff'd in part, 436 F.2d 809, 817-818 (CA3 1970) (residents in a neighborhood affected by urban renewal project have standing to challenge the project's impact on the neighborhood's racial balance). Accord, Fox v. HUD, 416 F.Supp. 954, 955-956 (E.D.Pa.1976); Marin City Council v. Marin County Redevelopment Agency, 416 F.Supp. 700, 702, 704 (N.D.Cal.1975). See also Comment, The Fair Housing Act: Standing for the Private Attorney General, 12 Santa Clara Law. 562, 568-571 (1972).
29
In addition to evidence about the community, it will be relevant at trial to consider the nature and extent of the business of the petitioner real estate brokers. This should include an inquiry into the extent of their participation in the purchase, sale, and rental of residences in the target area, the number and race of their customers, and the type of housing desired by customers. Evidence of this kind may be relevant to the establishment of the necessary causal connection between the alleged conduct and the asserted injury. Respondents apparently attempted to discover such information, but summary judgment was entered against them before this was accomplished.
30
The complaints state that petitioners have manipulated the housing market of Bellwood "to the economic and social detriment of the citizens of [the] village." App. 6, 99.
31
Although standing generally is a matter dealt with at the earliest stages of litigation, usually on the pleadings, it sometimes remains to be seen whether the factual allegations of the complaint necessary for standing will be supported adequately by the evidence adduced at trial.
32
The federal courts that have considered the question have concluded that racial steering is prohibited by Title VIII. E. g., Wheatley Heights Neighborhood Coalition v. Jenna Resales Co., 429 F.Supp. 486, 488 (E.D.N.Y.1977); United States v. Real Estate One, Inc., 433 F.Supp. 1140, 1144 (E.D.Mich.1977); Fair Housing Council v. Eastern Bergen County Multiple Listing Serv., Inc., 422 F.Supp. 1071, 1075 (N.J.1976). We do not reach this issue, as it is not presented by this case.
33
The Court of Appeals found it unnecessary to consider respondents' standing under § 1982. For this reason, and because of our decision with respect to respondents' standing under Title VIII, we do not reach the § 1982 issue.
1
Section 810 provides:
"(a) Any person who claims to have been injured by a discriminatory housing practice or who believes that he will be irrevocably injured by a discriminatory housing practice that is about to occur (hereafter 'person aggrieved') may file a complaint with the Secretary. Complaints shall be in writing and shall contain such information and be in such form as the Secretary requires. Upon receipt of such a complaint the Secretary shall furnish a copy of the same to the person or persons who allegedly committed or are about to commit the alleged discriminatory housing practice. Within thirty days after receiving a complaint, or within thirty days after the expiration of any period of reference under subsection (c), the Secretary shall investigate the complaint and give notice in writing to the person aggrieved whether he intends to resolve it. If the Secretary decides to resolve the complaint, he shall proceed to try to eliminate or correct the alleged discriminatory housing practice by informal methods of conference, conciliation, and persuasion. Nothing said or done in the course of such informal endeavors may be made public or used as evidence in a subsequent proceeding under this title without the written consent of the persons concerned. Any employee of the Secretary who shall make public any information in violation of this provision shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned not more than one year.
"(b) A complaint under subsection (a) of this section shall be filed within one hundred
and eighty days after the alleged discriminatory housing practice occurred. Complaints shall be in writing and shall state the facts upon which the allegations of a discriminatory housing practice are based. Complaints may be reasonably and fairly amended at any time. A respondent may file an answer to the complaint against him and with the leave of the Secretary, which shall be granted whenever it would be reasonable and fair to do so, may amend his answer at any time. Both complaints and answers shall be verified.
"(c) Wherever a State or local fair housing law provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in this title, the Secretary shall notify the appropriate State or local agency of any complaint filed under this title which appears to constitute a violation of such State or local fair housing law, and the Secretary shall take no further action with respect to such complaint if the appropriate State or local law enforcement official has, within thirty days from the date the alleged offense has been brought to his attention, commenced proceedings in the matter, or, having done so, carries forward such proceedings with reasonable promptness. In no event shall the Secretary take further action unless he certifies that in his judgment, under the circumstances of the particular case, the protection of the rights of the parties or the interests of justice require such action.
"(d) If within thirty days after a complaint is filed with the Secretary or within thirty days after expiration of any period of reference under subsection (c), the Secretary has been unable to obtain voluntary compliance with this title, the person aggrieved may, within thirty days thereafter, commence a civil action in any appropriate United States district court, against the respondent named in the complaint, to enforce the rights granted or protected by this title, insofar as such rights relate to the subject of the complaint: Provided, That no such civil action may be brought in any United States district court if the person aggrieved has a judicial remedy under a State or local fair housing law which provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in this title. Such actions may be brought without regard to the amount in controversy in any United States district court for the district in which the discriminatory housing practice is alleged to have occurred or be about to occur or in which the respondent resides or transacts business. If the court finds that a discriminatory housing practice has occurred or is about to occur, the court may, subject to the provisions of section 812 of this title, enjoin the respondent from engaging in such practice or order such affirmative action as may be appropriate.
"(e) In any proceeding brought pursuant to this section, the burden of proof shall be on the complainant.
"(f) Whenever an action filed by an individual, in either Federal or State court, pursuant to this section or section 812 of this title, shall come to trial the Secretary shall immediately terminate all efforts to obtain voluntary compliance." 82 Stat. 85, 42 U.S.C. § 3610.
2
Section 812 provides:
"(a) The rights granted by sections 803, 804, 805, and 806 of this title may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction. A civil action shall be commenced within one hundred and eighty days after the alleged discriminatory housing practice occurred: Provided, however, That the court shall continue such civil case brought pursuant to this section or section 810(d) of this title from time to time before bringing it to trial if the court believes that the conciliation efforts of the Secretary or a State or local agency are likely to result in satisfactory settlement of the discriminatory housing practice complained of in the complaint made to the Secretary or to the local or State agency and which practice forms the basis for the action in court: And provided, however, That any sale, encumbrance, or rental consummated prior to the issuance of any court order issued under the authority of this Act, and involving a bona fide purchaser, encumbrancer, or tenant without actual notice of the existence of the filing of a complaint or civil action under the provisions of this Act shall not be affected."
"(b) Upon application by the plaintiff and in such circumstances as the court may deem just, a court of the United States in which a civil action under this section has been brought may appoint an attorney for the plaintiff and may authorize the commencement of a civil action upon proper showing without the payment of fees, costs, or security. A court of a State or subdivision thereof may do likewise to the extent not inconsistent with the law or procedures of the State or subdivision.
"(c) The court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, and may award to the plaintiff actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees in the case of a prevailing plaintiff: Provided, That the said plaintiff in the opinion of the court is not financially able to assume said attorney's fees." 82 Stat. 88, 42 U.S.C. § 3612.
3
Despite suggestions to the contrary by the Court, ante, at 101 n. 7, our decision in Trafficante was clearly not intended to construe § 812 as well as § 810. The opinion focuses exclusively on § 810, closing with the following statement:
"We can give vitality to § 810(a) only by a generous construction which gives standing to sue to all in the same housing unit who are injured by racial discrimination in the management of those facilities within the coverage of the statute." 409 U.S., at 212, 93 S.Ct., at 368.
The Court's passing reference in Trafficante to § 812 can hardly be construed as an interpretation of that provision.
4
Alleging injury to "their right to select housing without regard to race," App. 6, 99, the individual respondents initially sought to establish standing in their capacity as "testers." Respondents have abandoned, in this Court, their claim of standing as testers, electing to stand or fall on their allegations of injury in their capacity as residents in and around Bellwood.
5
Indeed, the term is found nowhere else in Title VIII.
6
"Person" is defined in Title VIII as "one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, receivers, and fiduciaries." 42 U.S.C. § 3602(d).
| 89
|
441 U.S. 68
99 S.Ct. 1589
60 L.Ed.2d 49
Gordon M. AMBACH, as Commissioner of Education of the State of New York, et al., Appellants,v.Susan M. W. NORWICK et al.
No. 76-808.
Argued Jan. 10, 1979.
Decided April 17, 1979.
Syllabus
Held: A New York statute forbidding permanent certification as a public school teacher of any person who is not a United States citizen unless that person has manifested an intention to apply for citizenship, does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 72-81.
(a) As a general principle some state functions are so bound up with the operation of the State as a governmental entity as to permit exclusion from those functions of all persons who have not become part of the process of self-government. Accordingly, a State is required to justify its exclusion of aliens from such governmental positions only "by a showing of some rational relationship between the interest sought to be protected and the limiting classification." Foley v. Connelie, 435 U.S. 291, 296, 98 S.Ct. 1067, 55 L.Ed.2d 287. Pp. 73-74.
(b) This rule for governmental functions, which is an exception to the stricter general standard applicable to classifications based on alienage, rests on important principles inherent in the Constitution. The distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State, and the references to such distinction in the Constitution itself indicate that the status of citizenship was meant to have significance in the structure of our government. It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens. P. 75.
(c) Taking into consideration the role of public education and the degree of responsibility and discretion teachers possess in fulfilling that role, it is clear that public school teachers come well within the "governmental function" principle recognized in Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853, and Foley v. Connelie, supra, and, accordingly, the Constitution requires only that a citizenship requirement applicable to teaching in the public school bear a rational relationship to a legitimate state interest. Pp. 75-80. (d) Here, the statute in question does bear a rational relationship to the State's interest in furthering its educational goals, especially with respect to regarding all teachers as having an obligation to promote civic virtues and understanding in their classes, regardless of the subject taught. Pp. 80-81.
417 F.Supp. 913, reversed.
Judith A. Gordon, Asst. Atty. Gen. of New York, New York City, for Ambach, et al.
Bruce J. Ennis, Jr., New York City, for Norwick et al.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents the question whether a State, consistently with the Equal Protection Clause of the Fourteenth Amendment, may refuse to employ as elementary and secondary school teachers aliens who are eligible for United States citizenship but who refuse to seek naturalization.
2
* New York Education Law § 3001(3) (McKinney 1970) forbids certification as a public school teacher of any person who is not a citizen of the United States, unless that person has manifested an intention to apply for citizenship.1 The Commissioner of Education is authorized to create exemptions from this prohibition, and has done so with respect to aliens who are not yet eligible for citizenship.2 Unless a teacher obtains certification, he may not work in a public elementary or secondary school in New York.3
3
Appellee Norwick was born in Scotland and is a subject of Great Britain. She has resided in this country since 1965 and is married to a United States citizen. Appellee Dachinger is a Finnish subject who came to this country in 1966 and also is married to a United States citizen. Both Norwick and Dachinger currently meet all of the educational requirements New York has set for certification as a public school teacher, but they consistently have refused to seek citizenship in spite of their eligibility to do so. Norwick applied in 1973 for a teaching certificate covering nursery school through sixth grade, and Dachinger sought a certificate covering the same grades in 1975.4 Both applications were denied because of appellees' failure to meet the requirements of § 3001(3). Norwick then filed this suit seeking to enjoin the enforcement of § 3001(3), and Dachinger obtained leave to intervene as a plaintiff.
4
A three-judge District Court was convened pursuant to 28 U.S.C. § 2281 (1970 ed.). Applying the "close judicial scrutiny" standard of Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971), the court held that § 3001(3) discriminated against aliens in violation of the Equal Protection Clause. Norwick v. Nyquist, 417 F.Supp. 913 (SDNY 1976). The court believed that the statute was overbroad, because it excluded all resident aliens from all teaching jobs regardless of the subject sought to be taught, the alien's nationality, the nature of the alien's relationship to this country, and the alien's willingness to substitute some other sign of loyalty to this Nation's political values, such as an oath of allegiance. Id., at 921. We noted probable jurisdiction over the state school officials' appeal, 436 U.S. 902, 98 S.Ct. 2229, 56 L.Ed.2d 340 (1978), and now reverse.
II
A.
5
The decisions of this Court regarding the permissibility of statutory classifications involving aliens have not formed an unwavering line over the years. State regulation of the employment of aliens long has been subject to constitutional constraints. In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), the Court struck down an ordinance which was applied to prevent aliens from running laundries, and in Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915), a law requiring at least 80% of the employees of certain businesses to be citizens was held to be an unconstitutional infringement of an alien's "right to work for a living in the common occupations of the community . . . ." Id., at 41, 36 S.Ct., at 10. At the same time, however, the Court also has recognized a greater degree of latitude for the States when aliens were sought to be excluded from public employment. At the time Truax was decided, the governing doctrine permitted States to exclude aliens from various activities when the restriction pertained to "the regulation or distribution of the public domain, or of the common property or resources of the people of the State . . . ." Id., at 39, 36 S.Ct., at 10. Hence, as part of a larger authority to forbid aliens from owning land, Frick v. Webb, 263 U.S. 326, 44 S.Ct. 115, 68 L.Ed. 323 (1923); Webb v. O'Brien, 263 U.S. 313, 44 S.Ct. 112, 68 L.Ed. 318 (1923); Porterfield v. Webb, 263 U.S. 225, 44 S.Ct. 21, 68 L.Ed. 278 (1923); Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255 (1923); Blythe v. Hinckley, 180 U.S. 333, 21 S.Ct. 390, 45 L.Ed. 557 (1901); Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1880); harvesting wildlife, Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914); McCready v. Virginia, 4 Otto 391, 94 U.S. 391, 24 L.Ed. 248 (1877); or maintaining an inherently dangerous enterprise, Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115 (1927), States permissibly could exclude aliens from working on public construction projects, Crane v. New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915), and, it appears, from engaging in any form of public employment at all, see Truax, supra, 239 U.S., at 40, 36 S.Ct., at 10.
6
Over time, the Court's decisions gradually have restricted the activities from which States are free to exclude aliens. The first sign that the Court would question the constitutionality of discrimination against aliens even in areas affected with a "public interest" appeared in Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948). The Court there held that statutory presumptions designed to discourage evasion of California's ban on alien landholding discriminated against the citizen children of aliens. The same Term, the Court held that the "ownership" a State exercises over fish found in its territorial waters "is inadequate to justify California in excluding any or all aliens who are lawful residents of the State from making a living by fishing in the ocean off its shores while permitting all others to do so." Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 421, 68 S.Ct. 1138, 1144, 92 L.Ed. 1478 (1948). This process of withdrawal from the former doctrine culminated in Graham v. Richardson, supra, which for the first time treated classifications based on alienage as "inherently suspect and subject to close judicial scrutiny." 403 U.S., at 372, 91 S.Ct., at 1852. Applying Graham, this Court has held invalid statutes that prevented aliens from entering a State's classified civil service, Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), practicing law, In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), working as an engineer, Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976), and receiving state educational benefits, Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977).
7
Although our more recent decisions have departed substantially from the public-interest doctrine of Truax § day, they have not abandoned the general principle that some state functions are so bound up with the operation of the State as a governmental entity as to permit the exclusion from those functions of all persons who have not become part of the process of self-government. In Sugarman, we recognized that a State could, "in an appropriately defined class of positions, require citizenship as a qualification for office." We went on to observe:
8
"Such power inheres in the State by virtue of its obligation, already noted above, 'to preserve the basic conception of a political community.' . . . And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government." 413 U.S., at 647, 93 S.Ct., at 2850 (citation omitted).
9
The exclusion of aliens from such governmental positions would not invite as demanding scrutiny from this Court. Id., at 648, 93 S.Ct., at 2842. See also Nyquist v. Mauclet, supra, 432 U.S. at 11, 97 S.Ct. 2120; Perkins v. Smith, 370 F.Supp. 134 (D.C.Md.1974), summarily aff'd, 426 U.S. 913, 96 S.Ct. 2616, 49 L.Ed.2d 368 (1976).
10
Applying the rational-basis standard, we held last Term that New York could exclude aliens from the ranks of its police force. Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978). Because the police function fulfilled "a most fundamental obligation of government to its constituency" and by necessity cloaked policemen with substantial discretionary powers, we view the police force as being one of those appropriately defined classes of positions for which a citizenship requirement could be imposed. Id., at 297, 98 S.Ct., at 1071. Accordingly, the State was required to justify its classification only "by a showing of some rational relationship between the interest sought to be protected and the limiting classification." Id., at 296, 98 S.Ct., at 1070.
11
The rule for governmental functions, which is an exception to the general standard applicable to classifications based on alienage, rests on important principles inherent in the Constitution. The distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State. The Constitution itself refers to the distinction no less than 11 times, see Sugarman v. Dougall, supra, 413 U.S. at 651-652, 93 S.Ct. at 2862 (REHNQUIST, J., dissenting), indicating that the status of citizenship was meant to have significance in the structure of our government. The assumption of that status, whether by birth or naturalization, denotes an association with the polity which, in a democratic republic, exercises the powers of governance. See Foley v. Connelie, supra, 435 U.S., at 295, 98 S.Ct., at 1070. The form of this association is important: an oath of allegiance or similar ceremony cannot substitute for the unequivocal legal bond citizenship represents. It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens.5
B
12
In determining whether, for purposes of equal protection analysis, teaching in public schools constitutes a governmental function, we look to the role of public education and to the degree of responsibility and discretion teachers possess in fulfilling that role. See Foley v. Connelie, supra, at 297, 98 S.Ct., at 1071. Each of these considerations supports the conclusion that public school teachers may be regarded as performing a task "that go[es] to the heart of representative government." Sugarman v. Dougall, supra, 413 U.S., at 647, 93 S.Ct., at 2850.6
13
Public education, like the police function, "fulfills a most fundamental obligation of government to its constituency." Foley, supra, 435 U.S., at 297, 98 S.Ct., at 1071. The importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests, long has been recognized by our decisions:
14
"Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954).
15
See also Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 246, 93 S.Ct. 2686, 2716, 37 L.Ed.2d 548 (1973) (POWELL, J., concurring in part and dissenting in part); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29-30, 93 S.Ct. 1278, 1294-1295, 36 L.Ed.2d 16 (1973); Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972); id., at 238-239, 92 S.Ct., at 1544-1545 (WHITE, J., concurring); Abington School Dist. v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1575, 10 L.Ed.2d 844 (1963) (BRENNAN, J., concurring); Adler v. Board of Education, 342 U.S. 485, 493, 72 S.Ct. 380, 385, 96 L.Ed. 517 (1952); McCollum v. Board of Education, 333 U.S. 203, 212, 68 S.Ct. 461, 465, 92 L.Ed. 649 (1948) (opinion of Frankfurter, J.); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U.S. 79, 28 S.Ct. 26, 52 L.Ed. 111 (1907).7 Other authorities have perceived public schools as an "assimilative force" by which diverse and conflicting elements in our society are brought together on a broad but common ground. See, e. g., J. Dewey, Democracy and Education 26 (1929); N. Edwards & H. Richey, The School in the American Social Order 623-624 (2d ed. 1963). These perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists. See R. Dawson & K. Prewitt, Political So cialization 146-167 (1969); R. Hess & J. Torney, The Development of Political Attitudes in Children 114, 158-171, 217-220 (1967); V. Key, Public Opinion and American Democracy 323-343 (1961).8
16
Within the public school system, teachers play a critical part in developing students' attitude toward government and understanding of the role of citizens in our society. Alone among employees of the system, teachers are in direct, day-to-day contact with students both in the classrooms and in the other varied activities of a modern school. In shaping the students' experience to achieve educational goals, teachers by necessity have wide discretion over the way the course material is communicated to students. They are responsible for presenting and explaining the subject matter in a way that is both comprehensible and inspiring. No amount of standardization of teaching materials or lesson plans can eliminate the personal qualities a teacher brings to bear in achieving these goals. Further, a teacher serves as a role model for his students, exerting a subtle but important influence over their perceptions and values. Thus, through both the presentation of course materials and the example he sets, a teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizen's social responsibilities.9 This influence is crucial to the continued good health of a democracy.10
17
Furthermore, it is clear that all public school teachers, and not just those responsible for teaching the courses most directly related to government, history, and civic duties, should help fulfill the broader function of the public school system.11 Teachers, regardless of their specialty, may be called upon to teach other subjects, including those expressly dedicated to political and social subjects.12 More importantly, a State properly may regard all teachers as having an obligation to promote civic virtues and understanding in their classes, regardless of the subject taught. Certainly a State also may take account of a teacher's function as an example for students, which exists independently of particular classroom subjects. In light of the foregoing considerations, we think it clear that public school teachers come well within the "governmental function" principle recognized in Sugarman and Foley. Accordingly, the Constitution requires only that a citizenship requirement applicable to teaching in the public schools bear a rational relationship to a legitimate state interest. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976).
III
18
As the legitimacy of the State's interest in furthering the educational goals outlined above is undoubted, it remains only to consider whether § 3001(3) bears a rational relationship to this interest. The restriction is carefully framed to serve its purpose, as it bars from teaching only those aliens who have demonstrated their unwillingness to obtain United States citizenship.13 Appellees, and aliens similarly situated, in effect have chosen to classify themselves. They prefer to retain citizenship in a foreign country with the obligations it entails of primary duty and loyalty.14 They have rejected the open invitation extended to qualify for eligibility to teach by applying for citizenship in this country. The people of New York, acting through their elected representatives, have made a judgment that citizenship should be a qualification for teaching the young of the State in the public schools, and § 3001(3) furthers that judgment.15
19
Reversed.
20
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting.
21
Once again the Court is asked to rule upon the constitutionality of one of New York's many statutes that impose a requirement of citizenship upon a person before that person may earn his living in a specified occupation.1 These New York statutes, for the most part, have their origin in the frantic and overreactive days of the First World War when attitudes of parochialism and fear of the foreigner were the order of the day. This time we are concerned with the right to teach in the public schools of the State, at the elementary and secondary levels, and with the citizenship requirement that N.Y.Educ.Law § 3001(3) (McKinney 1970), quoted by the Court, ante, at 70 n. 1, imposes.2
22
As the Court acknowledges, ante, at 72, its decisions regarding the permissibility of statutory classifications concerning aliens "have not formed an unwavering line over the years."3 Thus, just last Term, in Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), the Court upheld against equal protection challenge the New York statute limiting appointment of members of the state police force to citizens of the United States. The touchstone, the Court indicated, was that citizenship may be a relevant qualification for fulfilling " 'important nonelective executive, legislative, and judicial positions' held by 'officers who participate directly in the formulation, execution, or review of broad public policy.' " Id., at 296, 98 S.Ct., at 1070, quoting Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853 (1973). For such positions, a State need show only some rational relationship between the interest sought to be protected and the limiting classification. Police, it then was felt, were clothed with authority to exercise an almost infinite variety of discretionary powers that could seriously affect members of the public. 435 U.S., at 297, 98 S.Ct., at 1071. They thus fell within the category of important officers who participate directly in the execution of "broad public policy." The Court was persuaded that citizenship bore a rational relationship to the special demands of police positions, and that a State therefore could constitutionally confine that public responsibility to citizens of the United States. Id., at 300, 98 S.Ct., at 1073. The propriety of making citizenship a qualification for a narrowly defined class of positions was also recognized, in passing, in Sugarman v. Dougall, 413 U.S., at 647, 93 S.Ct., at 2850, and in Nyquist v. Mauclet, 432 U.S. 1, 11, 97 S.Ct. 2120, 2126, 53 L.Ed.2d 63 (1977).
23
On the other hand, the Court frequently has invalidated a state provision that denies a resident alien the right to engage in specified occupational activity: Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (ordinance applied so as to prevent Chinese subjects from engaging in the laundry business); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915) (statute requiring an employer's work force to be composed of not less than 80% "qualified electors or native-born citizens"); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948) (limitation of commercial fishing licenses to persons not "ineligible to citizenship"); Sugarman v. Dougall, supra (New York statute relating to permanent positions in the "competitive class" of the state civil service); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973) (the practice of law); Nelson v. Miranda, 413 U.S. 902, 93 S.Ct. 3065, 37 L.Ed.2d 1021 (1973), summarily aff'g 351 F.Supp. 735 (D.C.Ariz.1972) (social service worker and teacher); Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) (the practice of civil engineering). See also Nyquist v. Mauclet, supra (New York statute barring certain resident aliens from state financial assistance for higher education).
24
Indeed, the Court has held more than once that state classifications based on alienage are "inherently suspect and subject to close judicial scrutiny." Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971). See Examining Board v. Flores de Otero, 426 U.S., at 601-602, 96 S.Ct., at 2280-2281; In re Griffiths, 413 U.S., at 721, 93 S.Ct., at 2854; Sugarman v. Dougall, 413 U.S., at 642, 93 S.Ct., at 2847; Nyquist v. Mauclet, 432 U.S., at 7, 97 S.Ct., at 2124. And "[a]lienage classifications by a State that do not withstand this stringent examination cannot stand." Ibid.
25
There is thus a line, most recently recognized in Foley v. Connelie, between those employments that a State in its wisdom constitutionally may restrict to United States citizens, on the one hand, and those employments, on the other, that the State may not deny to resident aliens. For me, the present case falls on the Sugarman-Griffiths-Flores de Otero-Mauclet side of that line, rather than on the narrowly isolated Foley side.
26
We are concerned here with elementary and secondary education in the public schools of New York State. We are not concerned with teaching at the college or graduate levels. It seems constitutionally absurd, to say the least, that in these lower levels of public education a Frenchman may not teach French or, indeed, an Englishwoman may not teach the grammar of the English language. The appellees, to be sure, are resident "aliens" in the technical sense, but there is not a word in the record that either appellee does not have roots in this country or is unqualified in any way, other than the imposed requirement of citizenship, to teach. Both appellee Norwick and appellee Dachinger have been in this country for over 12 years. Each is married to a United States citizen. Each currently meets all the requirements, other than citizenship, that New York has specified for certification as a public school teacher. Tr. of Oral Arg. 4.4 Each is willing, if required, to subscribe to an oath to support the Constitutions of the United States and of New York.5 Each lives in an American community, must obey its laws, and must pay all of the taxes citizens are obligated to pay. Appellees, however, have hesitated to give up their respective British and Finnish citizenships, just as lawyer Fre Le Poole Griffiths, the subject of In re Griffiths, supra, hesitated to renounce her Netherlands citizenship, although married to a citizen of the United States and a resident of Connecticut.
27
But the Court, to the disadvantage of appellees, crosses the line from Griffiths to Foley by saying, ante, at 75, that the "distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State." It then concludes that public school teaching "constitutes a governmental function," ibid., and that public school teachers may be regarded as performing a task that goes "to the heart of representative government." Ante, at 76. The Court speaks of the importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests.6 After then observing that teachers play a critical part in all this, the Court holds that New York's citizenship requirement is constitutional because it bears a rational relationship to the State's interest in furthering these educational goals.
28
I perceive a number of difficulties along the easy road the Court takes to this conclusion:
29
First, the New York statutory structure itself refutes the argument. Section 3001(3), the very statute at issue here, provides for exceptions with respect to alien teachers "employed pursuant to regulations adopted by the commissioner of education permitting such employment." Section 3001-a (McKinney 1970) provides another exception for persons ineligible for United States citizenship because of oversubscribed quotas. Also, New York is unconcerned with any citizenship qualification for teachers in the private schools of the State, even though the record indicates that about 18% of the pupils at the elementary and secondary levels attend private schools. The education of those pupils seems not to be inculcated with something less than what is desirable for citizenship and what the Court calls an influence "crucial to the continued good health of a democracy." Ante, at 79. The State apparently, under § 3001(3), would not hesitate to employ an alien teacher while he waits to attain citizenship, even though he may fail ever to attain it. And the stark fact that the State permits some aliens to sit on certain local school boards, N.Y.Educ.Law § 2590-c(4) (McKinney Supp.1978-1979), reveals how shallow and indistinct is New York's line of demarcation between citizenship and noncitizenship. The Court's attempted rationalization of this fact, ante, at 81-82 n. 15, hardly extinguishes the influence school board members, including these otherwise "disqualified" resident aliens, possess in school administration, in the selection of faculty, and in the approval of textbooks and instructional materials.
30
Second, the New York statute is all-inclusive in its disqualifying provisions: "No person shall be employed or authorized to teach in the public schools of the state who is . . . [n]ot a citizen." It sweeps indiscriminately. It is "neither narrowly confined nor precise in its application," nor limited to the accomplishment of substantial state interests. Sugarman v. Dougall, 413 U.S., at 643, 93 S.Ct., at 2848. See Note, Aliens' Right to Teach: Political Socialization and the Public Schools, 85 Yale L.J. 90, 109-111 (1975).
31
Third, the New York classification is irrational. Is it better to employ a poor citizen teacher than an excellent resident alien teacher? Is it preferable to have a citizen who has never seen Spain or a Latin American country teach Spanish to eighth graders and to deny that opportunity to a resident alien who may have lived for 20 years in the culture of Spain or Latin America? The State will know how to select its teachers responsibly, wholly apart from citizenship, and can do so selectively and intelligently.7 That is the way to accomplish the desired result. An artificial citizenship bar is not a rational way. It is, instead, a stultifying provision. The route to "diverse and conflicting elements" and their being "brought together on a broad but common ground," which the Court so emphasizes, ante, at 77, is hardly to be achieved by disregarding some of the diverse elements that are available, competent, and contributory to the richness of our society and of the education it could provide.
32
Fourth, it is logically impossible to differentiate between this case concerning teachers and In re Griffiths concerning attorneys. If a resident alien may not constitutionally be barred from taking a state bar examination and thereby becoming qualified to practice law in the courts of a State, how is one to comprehend why a resident alien may constitutionally be barred from teaching in the elementary and secondary levels of a State's public schools? One may speak proudly of the role model of the teacher, of his ability to mold young minds, of his inculcating force as to national ideals, and of his profound influence in the impartation of our society's values. Are the attributes of an attorney any the less? He represents us in our critical courtroom controversies even when citizenship and loyalty may be questioned. He stands as an officer of every court in which he practices. He is responsible for strict adherence to the announced and implied standards of professional conduct and to the requirements of evolving ethical codes, and for honesty and integrity in his professional and personal life. Despite the almost continuous criticism leveled at the legal profession, he, too, is an influence in legislation, in the community, and in the role-model figure that the professional person enjoys.8 The Court specifically recognized this in In re Griffiths:
33
"Lawyers do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts. Moreover, by virtue of their professional aptitudes and natural interests, lawyers have been leaders in government throughout the history of our country." 413 U.S., at 729, 93 S.Ct., at 2858.9
34
If an attorney has a constitutional right to take a bar examination and practice law, despite his being a resident alien, it is impossible for me to see why a resident alien, otherwise completely competent and qualified, as these appellees concededly are, is constitutionally disqualified from teaching in the public schools of the great State of New York. The District Court expressed it well and forcefully when it observed that New York's exclusion "seems repugnant to the very heritage the State is seeking to inculcate." Norwick v. Nyquist, 417 F.Supp. 913, 922 (SDNY 1976).
35
I respectfully dissent.
1
The statute provides:
"No person shall be employed or authorized to teach in the public schools of the state who is:
* * * * *
"3. Not a citizen. The provisions of this subdivision shall not apply, however, to an alien teacher now or hereafter employed, provided such teacher shall make due application to become a citizen and thereafter within the time prescribed by law shall become a citizen. The provisions of this subdivision shall not apply after July first, nineteen hundred sixty-seven, to an alien teacher employed pursuant to regulations adopted by the commissioner of education permitting such employment." N.Y.Educ.Law § 3001(3) (McKinney 1970).
The statute contains an exception for persons who are ineligible for United States citizenship solely because of an oversubscribed quota. § 3001-a (McKinney 1970). Because this statutory provision is in all respects narrower than the exception provided by regulation, see n. 2, infra, as a practical matter it has no effect.
The State does not certify the qualifications of teachers in the private schools, although it does require that such teachers be "competent." N.Y.Educ.Law § 3204(2) (McKinney Supp. 1978-1979). Accordingly, we are not presented with the question of, and express no view as to, the permissibility of a citizenship requirement pertaining to teachers in private schools.
2
The following regulation governs here:
"Citizenship. A teacher who is not a citizen of the United States or who has not declared intention of becoming a citizen may be issued a provisional certificate providing such teacher has the appropriate educational qualifications as defined in the regulations and (1) possesses skills or competencies not readily available among teachers holding citizenship, or (2) is unable to declare intention of becoming a citizen for valid statutory reasons." 8 N.Y.C.R.R. § 80.2(i) (1978).
3
Certification by the Commissioner of Education is not required of teachers at state institutions of higher education and the citizenship restriction accordingly does not apply to them. Brief for Appellants 13 n. *.
4
At the time of her application Norwick had not yet met the postgraduate educational requirements for a permanent certificate and accordingly applied only for a temporary certificate, which also is governed by § 3001(3). She since has obtained the necessary graduate degree for full certification. Dachinger previously had obtained a temporary certificate, which had lapsed at the time of her 1975 application. The record does not indicate whether Dachinger previously had declared an intent to obtain citizenship or had obtained the temporary certificate because of some applicable exception to the citizenship requirement.
5
That the significance of citizenship has constitutional dimensions also has been recognized by several of our decisions. In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), a plurality of the Court held that the expatriation of an American citizen constituted cruel and unusual punishment for the crime of desertion in time of war. In Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967), the Court held that the Constitution forbade Congress from depriving a person of his citizenship against his will for any reason.
6
The dissenting opinion of Mr. Justice BLACKMUN, in reaching an opposite conclusion, appears to apply a different analysis from that employed in our prior decisions. Rather than considering whether public school teachers perform a significant government function, the inquiry mandated by Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), and Sugarman v. Dougall, the dissent focuses instead on the general societal importance of primary and secondary school teachers both public and private. Thus, the dissent on the one hand depreciates the importance of New York's citizenship requirement because it is not applied to private school teachers, and on the other hand argues that the role teachers perform in our society is no more significant than that filled by attorneys. This misses the point of Foley and Sugarman. New York's citizenship requirement is limited to a governmental function because it applies only to teachers employed by and acting as agents of the State. The Connecticut statute held unconstitutional in In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), by contrast, applied to all attorneys, most of whom do not work for the government. The exclusion of aliens from access to the bar implicated the right to pursue a chosen occupation, not access to public employment. Cf. Nyquist v. Mauclet, 432 U.S. 1, 15-16, n., 97 S.Ct. 2120, 2129, 53 L.Ed.2d 63 (1977) (POWELL, J., dissenting). The distinction between a private occupation and a government function was noted expressly in Griffiths:
"Lawyers do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts. Moreover, by virtue of their professional aptitudes and natural interests, lawyers have been leaders in government throughout the history of our country. Yet, they are not officials of government by virtue of being lawyers." 413 U.S., at 729, 93 S.Ct., at 2858.
7
As San Antonio Independent School Dist. v. Rodriguez recognized, there is no inconsistency between our recognition of the vital significance of public education and our holding that access to education is not guaranteed by the Constitution. 411 U.S., at 30-35, 93 S.Ct., at 1295-1297.
8
The curricular requirements of New York's public school system reflect some of the ways a public school system promotes the development of the understanding that is prerequisite to intelligent participation in the democratic process. The schools are required to provide instruction "to promote a spirit of patriotic and civic service and obligation and to foster in the children of the state moral and intellectual qualities which are essential in preparing to meet the obligations of citizenship in peace or in war . . . ." N.Y. Educ. Law § 801(1) (McKinney 1969). Flag and other patriotic exercises also are prescribed, as loyalty is a characteristic of citizenship essential to the preservation of a country. § 802 (McKinney 1969 and Supp. 1978-1979). In addition, required courses include classes in civics, United States and New York history, and principles of American government. §§ 3204(3)(a)(1), (2) (McKinney 1970).
Although private schools also are bound by most of these requirements, the State has a stronger interest in ensuring that the schools it most directly controls, and for which it bears the cost, are as effective as possible in teaching these courses.
9
Although the findings of scholars who have written on the subject are not conclusive, they generally reinforce the common-sense judgment, and the experience of most of us, that a teacher exerts considerable influence over the development of fundamental social attitudes in students, including those attitudes which in the broadest sense of the term may be viewed as political. See, e. g., R. Dawson & K. Prewitt, Political Socialization 158-167 (1969); R. Hess & J. Torney, The Development of Political Attitudes in Children 162-163, 217-218 (1967). Cf. Note, Aliens' Right to Teach: Political Socialization and the Public Schools, 85 Yale L.J. 90, 99-104 (1975).
10
Appellees contend that restriction of an alien's freedom to teach in public schools is contrary to principles of diversity of thought and academic freedom embodied in the First Amendment. See also id., at 106-109. We think that the attempt to draw an analogy between choice of citizenship and political expression or freedom of association is wide of the mark, as the argument would bar any effort by the State to promote particular values and attitudes toward government. Section 3001(3) does not inhibit appellees from expressing freely their political or social views or from associating with whomever they please. Cf. Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 415-416, 99 S.Ct. 693, 696-697, 58 L.Ed.2d 619 (1979); Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Nor are appellees discouraged from joining with others to advance particular political ends. Cf. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). The only asserted liberty of appellees withheld by the New York statute is the opportunity to teach in the State's schools so long as they elect not to become citizens of this country. This is not a liberty that is accorded constitutional protection.
11
At the primary school level, for which both appellees sought certification, teachers are responsible for all of the basic curriculum.
12
In New York, for example, all certified teachers, including those in the secondary schools, are required to be available for up to five hours of teaching a week in subjects outside their specialty. 8 N.Y.C.R.R. § 80.2(c) (1978).
13
See n. 2, supra.
14
As our cases have emphasized resident aliens pay taxes, serve in the Armed Forces, and have made significant contributions to our country in private and public endeavors. See In re Griffiths, 413 U.S., at 722, 93 S.Ct., at 2855; Sugarman v. Dougall, 413 U.S., at 645, 93 S.Ct., at 2849; Graham v. Richardson, 403 U.S. 365, 376, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534 (1971). No doubt many of them, and we do not exclude appellees, would make excellent public school teachers. But the legislature, having in mind the importance of education to state and local governments, see Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954), may determine eligibility for the key position in discharging that function on the assumption that generally persons who are citizens, or who have not declined the opportunity to seek United States citizenship, are better qualified than are those who have elected to remain aliens. We note in this connection that regulations promulgated pursuant to § 3001(3) do provide for situations where a particular alien's special qualifications as a teacher outweigh the policy primarily served by the statute. See 8 N.Y.C.R.R. § 80.2(i)(1) (1978). The appellants inform us, however, that the authority conferred by this regulation has not been exercised. Brief for Appellants 7 n. *.
15
Appellees argue that the State cannot rationally exclude aliens from teaching positions and yet permit them to vote for and sit on certain local school boards. We note, first, that the State's legislature has not expressly endorsed this policy. Rather, appellants as an administrative matter have interpreted the statute governing New York City's unique community school boards, N.Y.Educ.Law § 2590-c(4) (McKinney Supp.1978-1979), to permit aliens who are the parents of public school students to participate in these boards. See App. 27, 29. We also may assume, without having to decide, that there is a rational basis for a distinction between teachers and board members based on their respective responsibilities. Although possessing substantial responsibility for the administration of the schools, board members teach no classes, and rarely if ever are known or identified by the students.
1
One of the appellees in Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), submitted a list of the New York statutes that required 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 those statutes have been legislatively repealed or modified, or judicially invalidated. Others are still in effect. Among the latter are those relating to the occupations of inspector, certified shorthand reporter, funeral director, masseur, physical therapist, and animal technician.
2
This particular citizenship requirement had its origin in 1918 N.Y.Laws, ch. 158, effective Apr. 4, 1918.
3
"To be sure, the course of decisions protecting the employment rights of resident aliens has not been an unswerving one." In re Griffiths, 413 U.S. 717, 720, 93 S.Ct. 2851, 2854, 37 L.Ed.2d 910 (1973).
4
Appellee Norwick is a summa cum laude graduate of a Massachusetts college and received an A average in full-time graduate work in the State University of New York at Albany. She has taught both in this country and in Great Britain.
Appellee Dachinger is a cum laude graduate, with a major in German, of Lehman College, a unit of the City University of New York, and possesses a master's degree in Early Childhood Education from that institution. She has taught at a day-care center in the Bronx.
Each appellee, thus, has received and excelled in educational training the State of New York itself offers.
5
See In re Griffiths, 413 U.S., at 726 n. 18, 93 S.Ct., at 2857 n. 18.
6
One, of course, can agree with this observation. One may concede, also, that public schools are an " 'assimilative force' by which diverse and conflicting elements in our society are brought together on a broad but common ground," ante, at 77, and that the inculcation of fundamental values by our public schools is necessary to the maintenance of a democratic political system.
7
In In re Griffiths the Court significantly has observed:
"Connecticut has wide freedom to gauge on a case-by-case basis the fitness of an applicant to practice law. Connecticut can, and does, require appropriate training and familiarity with Connecticut law. Apart from such tests of competence, it requires a new lawyer to take both an 'attorney's oath' to perform his functions faithfully and honestly and a 'commissioner's oath' to 'support the constitution of the United States, and the constitution of the state of Connecticut.' Appellant has indicated her willingness and ability to subscribe to the substance of both oaths, and Connecticut may quite properly conduct a character investigation to insure in any given case 'that an applicant is not one who "swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath." Bond v. Floyd, 385 U.S. 116, 132, 87 S.Ct. 339, 347, 17 L.Ed.2d 235.' Law Students Research Council v. Wadmond, 401 U.S. [154], at 164, 91 S.Ct. 720, at 727, 27 L.Ed.2d 749. Moreover, once admitted to the bar, lawyers are subject to continuing scrutiny by the organized bar and the courts. In addition to discipline for unprofessional conduct, the range of post-admission sanctions extends from judgments for contempt to criminal prosecutions and disbarment. In sum, the Committee simply has not established that it must exclude all aliens from the practice of law in order to vindicate its undoubted interest in high professional standards." 413 U.S., at 725-727, 93 S.Ct., at 2857 (footnotes omitted).
8
See also Stockton v. Ford, 11 How. 232, 247, 13 L.Ed. 676 (1851); Hickman v. Taylor, 329 U.S. 495, 514-515, 67 S.Ct. 385, 395, 91 L.Ed. 451 (1947) (concurring opinion); Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 77 S.Ct. 752, 760, 1 L.Ed.2d 796 (1957) (concurring opinion); In re Sawyer, 360 U.S. 622, 668, 79 S.Ct. 1376, 1399, 3 L.Ed.2d 1473 (1959) (dissenting opinion); J. Story, Miscellaneous Writings, Value and Importance of Legal Studies 503-549 (W. Story ed. 1972); Stone, The Public Influence of the Bar, 48 Harv.L.Rev. 1 (1934); W. Brennan, The Responsibilities of the Legal Profession, Address before the Law School of Harvard University (1967); A. de Tocqueville, Democracy in America 321-331 (Schocken ed. 1961); J. Rogers, The Lawyer in American Public Life, in Morrison Foundation Lectures 41, 61 (1940).
9
In order to keep attorneys on the nongovernmental side of the classification line, the Court continued:
"Yet, they are not officials of government by virtue of being lawyers. Nor does the status of holding a license to practice law place one so close to the core of the political process as to make him a formulator of government policy." 413 U.S., at 729, 93 S.Ct., at 2858.
| 12
|
441 U.S. 141
99 S.Ct. 1629
60 L.Ed.2d 106
ARIZONA PUBLIC SERVICE COMPANY et al., Appellants,v.Arthur B. SNEAD, etc., et al.
No. 77-1810.
Argued Feb. 26, 1979.
Decided April 18, 1979.
Syllabus
New Mexico has imposed an energy tax on the privilege of generating electricity within the State. This tax applies to all utility companies generating electricity within the State and may be credited against the New Mexico gross receipts tax liability for electricity sold at retail within New Mexico. But where the electricity is transmitted to other States for sale and consumption, there is no gross receipts tax liability against which to offset energy tax liability. A federal statute, 15 U.S.C. § 391, prohibits a State from imposing a tax on the generation or transmission of electricity which discriminates against out-of-state consumers, and further provides that a tax is discriminatory if it "results, either directly or indirectly, in a greater tax burden on electricity" generated and transmitted in interstate commerce than on electricity generated and transmitted in intrastate commerce. Appellant utility companies, owners of New Mexico power plants at which most of the electricity generated is ultimately sold to out-of-state consumers, brought action in a New Mexico state court seeking to have the energy tax invalidated on the ground, inter alia, that it violated the federal statute, but the New Mexico Supreme Court, affirming the trial court, upheld the tax.
Held: The New Mexico energy tax is invalid under the Supremacy Clause by reason of the federal statute. Because the tax itself, through operation of the tax-credit provisions, indirectly but necessarily discriminates against electricity sold outside New Mexico, it violates that statute. The federal statute does not exceed the permissible bounds of congressional action under the Commerce Clause, since Congress had a rational basis for finding that a tax such as New Mexico's interfered with interstate commerce, and selected a reasonable method to eliminate that interference. Pp. 146-151.
91 N.M. 485, 576 P.2d 291, reversed.
Daniel J. McAuliffe, Phoenix, Ariz., for appellants.
Jan E. Unna, Sante Fe, N. M., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
New Mexico has imposed a tax on the privilege of generating electricity within its borders. The question in this case is whether that tax conflicts with federal law, statutory or constitutional.
2
* The Four Corners power plants, located in New Mexico's desert northwest, are owned by the appellants, five public utilities companies.1 Most of the electricity generated at the plants is ultimately sold to out-of-state consumers.2 New Mexico imposes a 4% gross receipts tax on retail sellers of electricity,3 but since the bulk of the appellants' sales are made to consumers in other States, they do not incur significant liability for this tax. In 1975, New Mexico enacted the Electrical Energy Tax Act, the law at issue in this case.4 That Act imposes a tax on the privilege of generating electricity at the rate of 4/10 of a mill on each net kilowatt hour of electricity generated. This is roughly equivalent to a 2% tax on the retail value of the electricity. The tax is imposed on all companies generating electricity within the State. Section 9 of the Act, however, provides that this electrical energy tax may be fully credited against the company's gross receipts tax liability.
3
The Act and the regulations implementing it insure that the electrical generating company will receive full credit for the tax even if it does not itself make retail sales of electricity. This result is accomplished by requiring the generating company to assign its "potential credit" to the retailer, who in turn is required to reimburse the generating company for the value of this credit.5 The consequence is that a generating company's 2% tax is completely offset by the credit against the 4% retail sales tax when its electricity is sold within New Mexico. But to the extent that the electricity generated in New Mexico is not sold at retail in the State, there is no gross receipts tax liability against which to offset the electrical energy tax liability of the generating company.
4
In 1976, the State of Arizona, as a consumer of electricity and parens patriae for its citizens, sought to invoke this Court's original jurisdiction by a motion for leave to file a bill of complaint against New Mexico, asking for a declaratory judgment invalidating this New Mexico tax. The litigation now before us had already been initiated in the New Mexico courts by the present appellants, seeking essentially the same relief. This Court denied Arizona leave to file its complaint, concluding:
5
"[T]he pending state-court action provides an appropriate forum in which the issues tendered here may be litigated. If on appeal the New Mexico Supreme Court should hold the electrical energy tax unconstitutional, Arizona will have been vindicated. If, on the other hand, the tax is held to be constitutional, the issues raised now may be brought to this Court by way of direct appeal under 28 U.S.C. § 1257(2)." Arizona v. New Mexico, 425 U.S. 794, 797, 96 S.Ct. 1845, 1847, 48 L.Ed.2d 376, 378.
6
One of the alternative scenarios foreseen in our 1976 opinion has now eventuated. The New Mexico Supreme Court has upheld the validity of this energy tax against federal statutory and constitutional attacks, Arizona Public Serv. Co. v. O'Chesky, 91 N.M. 485, 576 P.2d 291, and the issues have been brought to this Court by way of direct appeal under 28 U.S.C. § 1257(2). 439 U.S. 891, 99 S.Ct. 246, 58 L.Ed.2d 236.
II
7
The appellants contend that the New Mexico tax is invalid under a specific federal statute as well as under the Commerce, Due Process, and Import-Export Clauses of the Constitution. Because we conclude that under the Supremacy Clause6 the tax is invalid by reason of this federal statute, we do not reach the substantive constitutional issues.
8
When Congress enacted the Tax Reform Act of 1976 it included a provision relating to state taxes on electricity. Section 2121(a) of the Act, 90 Stat. 1914, codified at 15 U.S.C. § 391, provides:
9
"No State, or political subdivision thereof, may impose or assess a tax on or with respect to the generation or transmission of electricity which discriminates against out-of-State manufacturers, producers, wholesalers, retailers, or consumers of that electricity. For purposes of this section, a tax is discriminatory if it results, either directly or indirectly, in a greater tax burden on electricity which is generated and transmitted in interstate commerce than on electricity which is generated and transmitted in intrastate commerce."
10
This provision was not in the bill as passed by the House of Representatives. Its genesis was in the Senate Finance Committee, although in its original version the definition of a discriminatory tax was different from that in the law finally enacted:
11
"For purposes of this section a tax is discriminatory that either directly or indirectly results in the payment of a higher gross or net tax on electricity which is generated and transmitted in interstate commerce than on electricity which is generated and transmitted in intrastate commerce." H.R.10612, 94th Cong., 1st Sess., § 1323 (1976).
12
The Committee's Report described the reasons for including the provision:
13
"The committee has learned that one State places a discriminatory tax upon the production of electricity within its boundaries for consumption outside its boundaries. While the rate of the tax itself is identical for electricity that is ultimately consumed outside the State and electricity which is consumed inside the State, discrimination results because the State allows the amount of the tax to be credited against its gross receipts tax if the electricity is consumed within its boundaries. This credit normally benefits only domiciliaries of the taxing State since no credit is allowed for electricity produced within the State and consumed outside the State. As a result, the cost of the electricity to nondomiciliaries is normally increased by the cost the producer of the electricity must bear in paying the tax. However, the cost to domiciliaries of the taxing State does not include the amount of the tax.
14
"The committee believes that this is an example of discriminatory State taxation which is properly within the ability of Congress to prohibit through its power to regulate interstate commerce." (Footnote omitted.) S.Rep.No.94-938, pt. I, pp. 437-438 (1976), U.S.Code Cong. & Admin.News 1976, pp. 2897, 3865-3866.
15
The identity of the unnamed State was disclosed during the course of a subsequent Senate floor debate on a motion by Senator Domenici of New Mexico to strike the provision from the bill. Senators Domenici and Montoya of New Mexico, Senators Fannin and Goldwater of Arizona, and Senator Cranston of California made it clear that the provision was aimed directly at New Mexico's electrical energy tax. 122 Cong.Rec. 24324-24329 (1976). At the conclusion of this debate, Senator Domenici's motion to eliminate the provision was defeated. Id., at 24329.
16
The appellees concede that this statutory provision was aimed directly at the New Mexico Electrical Energy Tax Act. They contend, however, that the definition of a discriminatory tax was so defused in the Conference Committee that Congress in the law as enacted failed to hit its mark. Specifically, they point out that a discriminatory tax, defined in the Senate Committee's original draft as one that results in "the payment of a higher gross or net tax," became in the statute as enacted one which results in "a greater tax burden" on electricity transmitted out of state than that sold within the State.
17
We are told that the statutory definition was redrafted in the Conference Committee to allay the concerns of Senators from States with somewhat similar taxes. That Committee's Report gave no reason, however, for the change in language. The Report merely stated:
18
"Senate amendment.—Under present law, any restrictions on the power of States or their political subdivisions to tax goods or services produced in the taxing State for nondomiciliary use outside the taxing State are derived from court interpretations of the interstate commerce clause of the Constitution.
19
"The Senate amendment prohibits any State or political subdivision of a State from directly or indirectly imposing any tax on the generation or transmission of electricity which discriminates against out-of-State users. This provision is effective for taxable years beginning after June 30, 1974.
20
"Conference agreement.—The conference agreement follows the Senate amendment." H.R.Conf.Rep.No. 94-1515, p. 503 (1976).
21
There is thus no legislative history to show what the Conference Committee's drafting change was intended to accomplish. But the provision as enacted is far from the "sterile" legislation that the appellees contend it is. To the contrary, the provision clearly operates, we think, to carry out the expressed intent of the Senate to invalidate the New Mexico tax.
22
The Act prohibits "a tax on or with respect to the generation or transmission of electricity" which "results, either directly or indirectly, in a greater tax burden on electricity" consumed outside of New Mexico than that consumed in the State. The appellees urge that this statutory provision is no more than a prohibition of a tax that is invalid under the constitutional test of the Commerce Clause. That test, they say, requires examination of New Mexico's total tax structure to determine whether the State in fact imposes a greater tax burden on electricity sent out of State. See Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 69, 83 S.Ct. 1201, 10 L.Ed.2d 202. And the tax in question, they say, clearly survives such an examination. Power sold within New Mexico, they argue, is subject to a 4% tax: 2% from the electrical energy tax and 2% from the gross receipts tax. By contrast, New Mexico subjects electricity sent out of State only to its 2% generation tax. The appellees contend, therefore, that if there is any discrimination in New Mexico's taxing structure, it is discrimination against electricity consumed within the State.
23
But, whatever the validity may be of the Commerce Clause test advanced by the appellees, the federal statutory provision is directly specifically at a state tax "on or with respect to the generation or transmission of electricity," not to the entire tax structure of the State. The tax imposed by New Mexico's Electrical Energy Tax Act is concededly a tax on the generation of electricity. The tax-credit provisions of the Act itself insure that locally consumed electricity is subject to no tax burden from the electrical energy tax, while the bulk of the electricity generated in New Mexico by the appellants is subject to a 2% tax, since it is sold outside the State. To look narrowly to the type of tax the federal statute names, rather than to consider the entire tax structure of the State, is to be faithful not only to the language of that statute but also to the expressed intent of Congress in enacting it. Because the electrical energy tax itself indirectly but necessarily discriminates against electricity sold outside New Mexico, it violates the federal statute.7
24
The appellees also argue that if the federal statute is construed to invalidate the New Mexico tax, it exceeds the permissible bounds of congressional action under the Commerce Clause. In view of the broad power of Congress to regulate interstate commerce, this argument must be rejected. See Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290. Here, the Congress had a rational basis for finding that the New Mexico tax interfered with interstate commerce, and selected a reasonable method to eliminate that interference. The legislation thus was within the constitutional power of Congress to enact. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-259, 85 S.Ct. 348, 358-359, 13 L.Ed.2d 258; 268-269; United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726, 729.
25
The generation of electricity in the Four Corners region undoubtedly also generates environmental and other problems for New Mexico. There is no indication that Congress intended to prevent the State from taxing the generation of electricity to pay for solutions to these problems. But the generation of electricity to be sent to Phoenix causes no more problems than the generation of electricity to be sent to Albuquerque. Congress required only that New Mexico, if it chooses to tax the generation of electricity for consumption in either city, tax it equally for each.
26
The judgment is reversed.
27
It is so ordered.
28
Mr. Justice REHNQUIST, with whom Mr. Justice WHITE joins, concurring in the judgment.
29
I concur in the judgment of the Court because I agree that the tax imposed by New Mexico's Electrical Energy Tax Act of the generation of electricity within its borders is forbidden by § 2121(a) of the Tax Reform Act of 1976, codified at 15 U.S.C. § 391.
30
I think that the statutory question is somewhat closer than the Court intimates, both as to the meaning of the actual language of § 391 and as to its legislative history. As the Court indicates and as appellees concede, the debate on the floor of the Senate makes it clear that the original version of § 391 was aimed at New Mexico's energy tax. See ante, at 147-148; Brief for Appellees 14. New Mexico argues here that the original provision was redrafted in conference in order to "save" somewhat similar tax statutes in other States and that, as redrafted, § 391 is "sterile" legislation: It accomplishes no more than the Commerce Clause of the Constitution would accomplish of its own force. See ante, at 149; Brief for Appellees 11, 16, 24. Congress is vested with the legislative power of the United States, and not the judicial power, and therefore it may be unrealistic to assume automatically that Congress never passes a "sterile" law, in the sense that the provision does no more than the Constitution would have done had Congress never enacted the law. But, in my view, the laws enacted by Congress certainly are entitled to a presumption to that effect. Since the effect of § 391 is not entirely clear from its language and legislative history, I would give some weight to that presumption in reaching the conclusion that § 391 extends beyond the requirements of the Commerce Clause* and outlaws the New Mexico energy tax here at issue.
1
The five appellants are Arizona Public Service Co., El Paso Electric Co., Salt River Project Agricultural Improvement & Power Dist., Southern California Edison Co., and Tucson Gas & Electric Co. Each appellant owns an undivided interest in the Four Corners Power Plant. Tucson Gas & Electric is an equal co-owner with Public Service Co. of New Mexico of units of the San Juan Generating Station. El Paso Electric Co. owns and operates the Rio Grande Generating Station in southern New Mexico.
2
Arizona Public Service Co. makes some minor retail sales of electricity in New Mexico. El Paso Electric makes retail sales in a significant portion of southern New Mexico and is the only one of the appellants regulated by New Mexico as a public utility. El Paso Electric also sells electricity at wholesale in the Republic of Mexico. In 1975, the five appellants generated nearly a billion kilowatt hours of electricity in New Mexico.
3
N.M.Stat.Ann. §§ 7-9-1 through 7-9-80 (1978).
4
The critical sections of the Electrical Energy Tax Act are §§ 3 and 9. They provide in relevant part as follows:
Section 3.
"A. For the privilege of generating electricity in this state for the purpose of sale, whether the sale takes place in this state or outside this state, there is imposed on any person generating electricity a temporary tax, applicable until July 1, 1984, of four-tenths of one mill ($.0004) on each net kilowatt hour of electricity generated in New Mexico.
"B. The tax imposed by this section shall be referred to as the 'electrical energy tax.' " N.M.Stat.Ann. § 7-18-3 (1978).
Section 9.
"B. On electricity generated inside this state and consumed in this state which was subject to the electrical energy tax, the amount of such tax paid may be credited against the gross receipts tax due this state.
"C. The credit under Subsections A or B of this section shall be assigned to the person selling the electricity for consumption in New Mexico on which New Mexico gross receipts tax is due, and the assignee shall reimburse the assignor for the credit." N.M.Stat.Ann. § 7-9-80 (1978).
5
The relevant sections of the regulations provide:
"B. Section 72-16A-16.1(C) [now codified as § 7-9-80(C)] requires that a potential credit be assigned to persons purchasing electricity for resale:
"1) to buyers who will potentially consume or use the electricity in New Mexico, or
"2) to buyers who will potentially resell the electricity for consumption in New Mexico; on which an electrical energy tax or similar tax has been levied by New Mexico, by another state or by political subdivisions thereof and paid by the seller.
"Each seller of electricity as described in this paragraph must assign, to each buyer described in subparagraphs (1) and (2) of this paragraph, a pro-rata share of the total available potential credit provided in Section 72-16A-16.1(A) or (B) [now codified as §§ 7-9-80(A), 7-9-80(B)].
"C. It shall be presumed that the potential credit against gross receipts tax as provided by Section 72-16A-16.1(C) shall have been assigned when the buyer is in receipt of an invoice from the seller separately stating the amount of the applicable Electrical Energy Tax or similar tax as provided in Section 72-16A-16.1.
"In the absence of bad faith, a wholesale purchaser in New Mexico of electricity may rely upon such an invoice in claiming a credit under Section 72-16A-16.1.
"D.
"1) That portion of the potential credit assigned to a buyer further reselling the electricity for consumption in New Mexico may be credited by the assignee against the gross receipts tax due New Mexico on receipts from the sale of electricity for any month subsequent to July 1, 1975.
"2) That portion of the potential credit assigned to a buyer further reselling the electricity at wholesale to buyers who will resell the electricity for consumption in New Mexico must be reassigned to the subsequent buyer as provided in paragraph B of this regulation.
"3) That amount of the electric energy tax credit which is not assigned to appropriate buyers and which is otherwise creditable under Section 72-16A-16.1, may be credited against the gross receipts tax due New Mexico on receipts from the sale of electricity for any reporting month subsequent to July 1, 1975." N.M.G.Rev. Regulations 16.1:1 (1976).
6
"[T]he Laws of the United States which shall be made in Pursuance [of the Constitution] . . . shall be the supreme Law of the Land . . . ." U. S. Const., Art. VI, cl. 2.
7
This is not a case where the State has imposed an evenhanded tax on the generation of electricity and has lowered the gross receipts or sales tax on the sale of electricity. Although New Mexico argues that such is the practical result of its tax structure, the credit provisions of the Electrical Energy Tax Act itself shift the legal incidence of the gross receipts tax credit directly to the generating utility.
The amici in this case have pointed to several similar state taxes on the generation of electricity. Pa.Stat.Ann., Tit. 72, § 8101 (Purdon Supp.1978-1979); Wash.Rev.Code §§ 82.16.020, 82.16.050 (1976); W.Va.Code §§ 11-13-2d, 11-13-2m (Supp.1978). None of these States, however, has adopted precisely the scheme used by New Mexico, and we express no opinion as to the validity of these or any other state tax laws.
*
There is no question in my mind that if § 391 were coextensive with the Commerce Clause, New Mexico's energy tax would be valid for substantially the same reasons advanced by appellees. Ante, at 149; see Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 69-70, 83 S.Ct. 1201, 1203-1204, 10 L.Ed.2d 202, 204-205 (1963); Gregg Dyeing Co. v. Query, 286 U.S. 472, 480, 52 S.Ct. 631, 634, 76 L.Ed. 1232, 1235 (1932); Public Utility Dist. No. 2 v. State, 82 Wash.2d 232, 239-240, 510 P.2d 206, 210-211, appeal dismissed for want of substantial federal question, 414 U.S. 1106 (1973).
| 78
|
441 U.S. 238
99 S.Ct. 1682
60 L.Ed.2d 177
Lawrence DALIA, Petitioner,v.UNITED STATES.
No. 77-1722.
Argued Jan. 9, 10, 1979.
Decided April 18, 1979.
Syllabus
Pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the District Court, finding probable cause to believe that petitioner was a member of a conspiracy the purpose of which was to steal goods being shipped in interstate commerce, granted the Government's request for authorization to intercept all oral communications taking place in petitioner's business office. Petitioner was subsequently convicted of receiving stolen goods and conspiring to transport, receive, and possess stolen goods. At a hearing on his motion to suppress evidence obtained under the bugging order, it was shown that although such order did not explicitly authorize entry of petitioner's business office, FBI agents had entered the office secretly at midnight on the day of the bugging order and had spent three hours installing an electronic bug in the ceiling. Denying petitioner's motion to suppress, the District Court ruled that under Title III a covert entry to install electronic eavesdropping equipment is not unlawful merely because the court approving the surveillance did not explicitly authorize such an entry. Affirming petitioner's conviction, the Court of Appeals rejected his contention that separate court authorization was necessary for the covert entry of his office.
Held:
1. The Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment. Implicit in decisions such as Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561, and Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, has been this Court's view that covert entries are constitutional in some circumstances, at least if they are made pursuant to warrant. Petitioner's argument that covert entries are unconstitutional for their lack of notice is frivolous, as was indicated in Katz v. United States, 389 U.S. 347, 355 n. 16, 88 S.Ct. 507, 513 n. 16, 19 L.Ed.2d 576, where this Court stated that "officers need not announce their purpose before conducting an otherwise [duly] authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence." Pp. 246-248.
2. Congress has given the courts statutory authority to approve covert entries for the purpose of installing electronic surveillance equipment. Although Title III does not refer explicitly to covert entry, the language, structure, purpose, and history of the statute demonstrate that Congress meant to authorize courts—in certain specified circumstances—to approve electronic surveillance without limitation on the means necessary to its accomplishment, so long as they are reasonable under the circumstances. Congress clearly understood that it was conferring power upon the courts to authorize covert entries ancillary to their responsibility to review and approve surveillance applications under the statute. Pp. 249-254.
3. The Fourth Amendment does not require that a Title III electronic surveillance order include a specific authorization to enter covertly the premises described in the order. Pp. 254-259.
(a) The Warrant Clause of the Fourth Amendment requires only that warrants be issued by neutral, disinterested magistrates, that those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense, and that warrants must particularly describe the things to be seized, as well as the place to be searched. Here, the bugging order was a warrant issued in full compliance with these traditional Fourth Amendment requirements. Pp. 255-256.
(b) Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to these requirements, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant subject to the general Fourth Amendment protection "against unreasonable searches and seizures." Pp. 256-257.
(c) An interpretation of the Warrant Clause so as to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers, is unnecessary, since the manner in which a warrant is executed is subject to later judicial review as to its reasonableness. More important, it would promote empty formalism were this Court to require magistrates to make explicit what unquestionably is implicit in bugging authorizations: that a covert entry, with its attendant interference with Fourth Amendment interests, may be necessary for the installation of the surveillance equipment. Pp. 257-258.
575 F.2d 1344, affirmed.
Louis A. Ruprecht, Newark, N.J., for petitioner.
Andrew L. Frey, Deputy Sol. Gen., Dept. of Justice, Washington, D.C. for the United States.
Mr. Justice POWELL delivered the opinion of the Court.
1
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. §§ 2510-2520, permits courts to authorize electronic surveillance1 by Government officers in specified situations. We took this case by writ of certiorari to resolve two questions concerning the implementation of Title III surveillance orders. 439 U.S. 817, 99 S.Ct. 78, 58 L.Ed.2d 108. First, may courts authorize electronic surveillance that requires covert entry2 into private premises for installation of the necessary equipment? Second, must authorization for such surveillance include a specific statement by the court that it approves of the convert entry?3
2
* On March 14, 1973, Justice Department officials applied to the United States District Court for the District of New Jersey, seeking authorization under 18 U.S.C. § 2518 to intercept telephone conversations on two telephones in petitioner's business office. After examining the affidavits submitted in support of the Government's request, the District Court authorized the wiretap for a period of 20 days or until the purpose of the interception was achieved, whichever came first. The court found probable cause to believe that petitioner was a member of a conspiracy the purpose of which was to steal goods being shipped in interstate commerce in violation of 18 U.S.C. § 659. Moreover, the court found reason to believe that petitioner's business telephones were being used to further this conspiracy and that means of investigating the conspiracy other than electronic surveillance would be unlikely to succeed and would be dangerous. The wiretap order carefully enumerated the telephones to be affected and the types of conversations to be intercepted. Finally, the court ordered the officials in charge of the interceptions to take all reasonable precautions "to minimize the interception of communications not otherwise subject to interception," and required the officials to make periodic progress reports.
3
At the end of the 20-day period covered by the March 14 court order, the Government requested an extension of the wiretap authorization. In addition, the Government for the first time asked the court to allow it to intercept all oral communications taking place in petitioner's office, including those not involving the telephone. On April 5, 1973, the court granted the Government's second request. Its order concerning the wiretap of petitioner's telephones closely tracked the March 14 order. Finding reasonable cause to believe that petitioner's office was being used by petitioner and others in connection with the alleged conspiracy, the court also authorized, for a maximum period of 20 days, the interception of all oral communications concerning the conspiracy at "the business office of Larry Dalia, consisting of an enclosed room, approximately fifteen (15) by eighteen (18) feet in dimension, and situated in the northwesterly corner of a one-story building housing Wrap-O-Matic Machinery Company, Ltd., and Precise Packaging, and located at 1105 West St. George Avenue, Linden, New Jersey." The order included protective provisions similar to those in the March 14 wiretapping order.4 The electronic surveillance order of April 5 was extended by court order on April 27, 1973.
4
On November 6, 1975, petitioner was indicted in a five-count indictment charging that he had been involved in a conspiracy to steal an interstate shipment of fabric.5 At trial, the Government introduced evidence showing that petitioner had been approached in March 1973 and asked to store in his New Jersey warehouse "a load of merchandise." Although petitioner declined the request, he directed the requesting party to Higgins, an associate, with whom he agreed to share the $1,500 storage fee that was offered. The merchandise stored under this contract proved to be a tractor-trailer full of fabric worth $250,000 that three men stole on April 3, 1973, and transported to Higgins' warehouse. Two days after the theft, FBI agents arrested Higgins and the individuals involved in the robbery.
5
The Government introduced into evidence at petitioner's trial various conversations intercepted pursuant to the court orders of March 14, April 5, and April 27, 1973. Intercepted telephone conversations showed that petitioner had arranged for the storage at Higgins' warehouse and had helped negotiate the terms for that storage. One telephone conversation that took place after Higgins' arrest made clear that petitioner had given advice to others involved in the robbery to "sit tight" and not to use the telephone. Finally, the Government introduced transcripts of conversations intercepted from petitioner's office under the April 5 bugging order. In these conversations, petitioner had discussed with various participants in the robbery how best to proceed after their confederates had been arrested. The unmistakable inference to be drawn from petitioner's statements in these conversations is that he was an active participant in the scheme to steal the truckload of fabric.
6
Before trial, petitioner moved to suppress evidence obtained through the interception of conversations by means of the device installed in his office. The District Court denied the suppression motion without prejudice to its being renewed following trial. After petitioner was convicted on two counts,6 he renewed his motion and the court held an evidentiary hearing concerning the method by which the electronic device had been installed. At this hearing it was shown that, although the April 5 court order did not explicitly authorize entry of petitioner's business, the FBI agents assigned the task of implementing the order had entered petitioner's office secretly at midnight on April 5 and had spent three hours in the building installing an electronic bug in the ceiling. All electronic surveillance of petitioner ended on May 16, 1973, at which time the agents re-entered petitioner's office and removed the bug.
7
In denying a second time petitioner's motion to suppress the evidence obtained from the bug, the trial court ruled that under Title III a covert entry to install electronic eavesdropping equipment is not unlawful merely because the court approving the surveillance did not explicitly authorize such an entry. 426 F.Supp. 862 (1977). Indeed, in the court's view, "implicit in the court's order [authorizing electronic surveillance] is concomitant authorization for agents to covertly enter the premises in question and install the necessary equipment." Id., at 866. As the court concluded that the FBI agents who had installed the electronic device were executing a lawful warrant issued by the court, the sole question was whether the method they chose for execution was reasonable. Under the circumstances, the court found the covert entry of petitioner's office to have been "the safest and most successful method of accomplishing the installation." Ibid. Indeed, noting that petitioner himself had indicated that such a device could only have been installed through such an entry, the court observed that "[i]n most cases the only form of installing such devices is through breaking and entering. The nature of the act is such that entry must be surreptitious and must not arouse suspicion, and the installation must be done without the knowledge of the residents or occupants." Ibid.
8
The Court of Appeals for the Third Circuit affirmed petitioner's conviction. 575 F.2d 1344 (1978). Agreeing with the District Court, it rejected petitioner's contention that separate court authorization was necessary for the covert entry of petitioner's office, although it noted that "the more prudent or preferable approach for government agents would be to include a statement regarding the need of a surreptitious entry in a request for the interception of oral communications when a break-in is contemplated." Id., at 1346-1347.
II
9
Petitioner first contends that the Fourth Amendment prohibits covert entry of private premises in all cases, irrespective of the reasonableness of the entry or the approval of a court. He contends that Title III is unconstitutional insofar as it enables courts to authorize covert entries for the installation of electronic bugging devices.
10
In several cases this Court has implied that in some circumstances covert entry to install electronic bugging devices would be constitutionally acceptable if done pursuant to a search warrant. Thus, for example, in Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954), the plurality stated that in conducting electronic surveillance, state police officers had "flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment as a restriction on the Federal Government." Id., at 132, 74 S.Ct., at 383. It emphasized that the bugging equipment was installed through a covert entry of the defendant's home "without a search warrant or other process." Ibid. (emphasis added). Similarly, in Silverman v. United States, 365 U.S. 505, 511-512, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961), it was noted that "[t]his Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard." (Emphasis added.) Implicit in decision such as Silverman and Irvine has been the Court's view that covert entries are constitutional in some circumstances, at least if they are made pursuant to warrant.
11
Moreover, we find no basis for a constitutional rule proscribing all covert entries. It is well established that law officers constitutionally may break and enter to execute a search warrant where such entry is the only means by which the warrant effectively may be executed. See, e. g., Payne v. United States, 508 F.2d 1391, 1394 (CA5 1975); cf. Ker v. California, 374 U.S. 23, 28, 38, 83 S.Ct. 1623, 1627, 1632, 10 L.Ed.2d 726 (1963); 18 U.S.C. § 3109. Petitioner nonetheless argues that covert entries are unconstitutional for their lack of notice. This argument is frivolous, as was indicated in Katz v. United States, 389 U.S. 347, 355 n. 16, 88 S.Ct. 507, 513 n. 16, 19 L.Ed.2d 576 (1967), where the Court stated that "officers need not announce their purpose before conducting an otherwise [duly] authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence."7 In United States v. Donovan, 429 U.S. 413, 429 n. 19, 97 S.Ct. 658, 669 n. 19, 50 L.Ed.2d 652 (1977), we held that Title III provided a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance. See 18 U.S.C. § 2518(8)(d). There is no reason why the same notice is not equally sufficient with respect to electronic surveillances requiring covert entry. We make explicit, therefore, what has long been implicit in our decisions dealing with this subject: The Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment.8
III
12
Petitioner's second contention is that Congress has not given the courts statutory authority to approve covert entries for the purpose of installing electronic surveillance equipment, even if constitutionally it could have done so. Petitioner emphasizes that although Title III sets forth with meticulous care the circumstances in which electronic surveillance is permitted, there is no comparable indication in the statute that covert entry ever may be ordered. Accord, United States v. Santora, 583 F.2d 453, 457-458 (CA9 1978).
13
Title III does not refer explicitly to covert entry. The language, structure, and history of the statute, however, demonstrate that Congress meant to authorize courts—in certain specified circumstances—to approve electronic surveillance without limitation on the means necessary to its accomplishment, so long as they are reasonable under the circumstances. Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials. See 18 U.S.C. §§ 2511, 2515, and 2518; United States v. United States District Court, 407 U.S. 297, 301-302, 92 S.Ct. 2125, 2128, 2129, 32 L.Ed.2d 752 (1972). Although Congress was fully aware of the distinction between bugging and wiretapping, see S.Rep. No. 1097, 90th Cong., 2d Sess., 68 (1968), U.S.Code Cong. & Admin.News 1968, p. 2112, Title III by its terms deals with each form of surveillance in essentially the same manner. See 18 U.S.C. §§ 2510(1) and (2); n. 1, supra. Orders authorizing interceptions of either wire or oral communications may be entered only after the court has made specific determinations concerning the likelihood that the interception will disclose evidence of criminal conduct. See 18 U.S.C. § 2518(3). Moreover, with respect to both wiretapping and bugging, an authorizing court must specify the exact scope of the surveillance undertaken, enumerating the parties whose communications are to be overheard (if they are known), the place to be monitored, and the agency that will do the monitoring. See 18 U.S.C. § 2518(4).
14
The plain effect of the detailed restrictions of § 2518 is to guarantee that wiretapping or bugging occurs only when there is a genuine need for it and only to the extent that it is needed.9 Once this need has been demonstrated in accord with the requirements of § 2518, the courts have broad authority to "approv[e] interception of wire or oral communications," 18 U.S.C. §§ 2516(1), (2), subject of course to constitutional limitations. See Part II, supra.10 Nowhere in Title III is there any indication that the authority of courts under § 2518 is to be limited to approving those methods of interception that do not require covert entry for installation of the intercepting equipment.11
15
The legislative history of Title III underscores Congress' understanding that courts would authorize electronic surveillance in situations where covert entry of private premises was necessary. Indeed, a close examination of that history reveals that Congress did not explicitly address the question of covert entries in the Act, only because it did not perceive surveillance requiring such entries to differ in any important way from that performed without entry. Testimony before subcommittees considering Title III and related bills indicated that covert entries were a necessary part of most electronic bugging operations. See, e. g., Anti-Crime Program: Hearings on H.R. 5037, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1031 (1967). Moreover, throughout the Senate Report on Title III indiscriminate reference is made to the types of surveillance this Court reviewed 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). See, e. g., S.Rep. No. 1097, supra, at 74-75, 97, 101-102, 105. Apparently Committee members did not find it significant that Berger involved a covert entry, whereas Katz did not. Compare Berger v. New York, supra, at 45, 87 S.Ct. at 1876, with Katz v. United States, supra, at 348, 88 S.Ct. at 509.12
16
It is understandable, therefore, that by the time Title III was discussed on the floor of Congress, those Members who referred to covert entries indicated their understanding that such entries would necessarily be a part of bugging authorized under Title III. Thus, for example, in voicing his support for Title III Senator Tydings emphasized the difficulties attendant upon installing necessary equipment:
17
"[S]urveillance is very difficult to use. Tape [sic ] must be installed on telephones, and wires strung. Bugs are difficult to install in many places since surreptitious entry is often impossible. Often, more than one entry is necessary to adjust equipment." 114 Cong.Rec. 12989 (1968) (emphasis added).
18
In the face of this record, one simply cannot assume that Congress, aware that most bugging requires covert entry, nonetheless wished to except surveillance requiring such entries from the broad authorization of Title III, and that it resolved to do so by remaining silent on the subject. On the contrary, the language and history of Title III convey quite a different explanation for Congress' failure to distinguish between surveillance that requires covert entry and that which does not: Those considering the surveillance legislation understood that, by authorizing electronic interception of oral communications in addition to wire communications, they were necessarily authorizing surreptitious entries.
19
Finally, Congress' purpose in enacting the statute would be largely thwarted if we were to accept petitioner's invitation to read into Title III a limitation on the courts' authority under § 2518. Congress permitted limited electronic surveillance under Title III because it concluded that both wiretapping and bugging were necessary to enable law enforcement authorities to combat successfully certain forms of crime.13 Absent covert entry, however, almost all electronic bugging would be impossible.14 See United States v. Ford, 414 F.Supp. 879, 882 (D.C.1976), aff'd, 180 U.S.App.D.C. 1, 553 F.2d 146 (1977); McNamara, The Problem of Surreptitious Entry to Effectuate Electronic Eavesdrops: How Do You Proceed After the Court Says "Yes"?, 15 Am.Crim.L.Rev. 1, 3 (1977). As recently as 1976, a congressional commission established to study and evaluate the effectiveness of Title III concluded that in most cases electronic surveillance cannot be performed without covert entry into the premises being monitored. See U. S. National Commission for Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, Electronic Surveillance 15, 43, and n. 19, 86 (1976). The same conclusion was reached by the American Bar Association committee charged with formulating standards governing use of electronic surveillance. See ABA Project on Minimum Standards for Criminal Justice, Electronic Surveillance 65 n. 175, 149 (App. Draft 1971).15
20
In sum, we conclude that Congress clearly understood that it was conferring power upon the courts to authorize covert entries ancillary to their responsibility to review and approve surveillance applications under the statute. To read the statute otherwise would be to deny the "respect for the policy of Congress [that] must save us from imputing to it a self-defeating, if not disingenuous purpose." Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939).16
IV
21
Petitioner's final contention is that, if covert entries are to be authorized under Title III, the authorizing court must explicitly set forth its approval of such entries before the fact. In this case, as is customary, the court's order constituted the sole written authorization of the surveillance of petitioner's office. As it did not state in terms that the surveillance was to include a covert entry, petitioner insists that the entry violated his Fourth Amendment privacy rights. Accord, United States v. Ford, 180 U.S.App.D.C., at 25, 553 F.2d, at 170; Application of United States, 563 F.2d 637, 644 (CA4 1977).17
22
The Fourth Amendment requires that search warrants be issued only "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Finding these words to be "precise and clear," Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 509, 13 L.Ed.2d 431 (1965), this Court has interpreted them to require only three things. First, warrants must be issued by neutral, disinterested magistrates. See, e. g., Connally v. Georgia, 429 U.S. 245, 250-251, 97 S.Ct. 546, 548-549, 50 L.Ed.2d 444 (1977) (per curiam); Shadwick v. Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2122, 32 L.Ed.2d 783 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that "the evidence sought will aid in a particular apprehension or conviction" for a particular offense. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967). Finally, "warrants must particularly describe the 'things to be seized,' " as well as the place to be searched. Stanford v. Texas, supra, at 485, 85 S.Ct. at 511.
23
In the present case, the April 5 court order authorizing the interception of oral communications occurring within petitioner's office was a warrant issued in full compliance with these traditional Fourth Amendment requirements. It was based upon a neutral magistrate's independent finding of probable cause to believe that petitioner had been and was committing specifically enumerated federal crimes, that petitioner's office was being used "in connection with the commission of [these] offenses," and that bugging the office would result in the interception of "oral communications concerning these offenses." App. 6a-7a. Moreover, the exact location and dimensions of petitioner's office were set forth, see n. 4, supra, and the extent of the search was restricted to the "[i]ntercept[ion of] oral communications of Larry Dalia and others as yet unknown, concerning the above-described offenses at the business office of Larry Dalia . . . ." App. 8a.18
24
Petitioner contends, nevertheless, that the April 5 order was insufficient under the Fourth Amendment for its failure to specify that it would be executed by means of a covert entry of his office. Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the three requirements discussed above, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant19—subject of course to the general Fourth Amendment protection "against unreasonable searches and seizures."
25
Recognizing that the specificity required by the Fourth Amendment does not generally extend to the means by which warrants are executed, petitioner further argues that warrants for electronic surveillance are unique because often they impinge upon two different Fourth Amendment interests: The surveillance itself interferes only with the right to hold private conversations, whereas the entry subjects the suspect's property to possible damage and personal effects to unauthorized examination. This view of the Warrant Clause parses too finely the interests protected by the Fourth Amendment. Often in executing a warrant the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant. For example, police executing an arrest warrant commonly find it necessary to enter the suspect's home in order to take him into custody, and they thereby impinge on both privacy and freedom of movement. See, e. g., United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing). Similarly, officers executing search warrants on occasion must damage property in order to perform their duty. See, e. g., United States v. Brown, 556 F.2d 304, 305 (CA5 1977); United States v. Gervato, 474 F.2d 40, 41 (CA3), cert. denied, 414 U.S. 864, 94 S.Ct. 39, 38 L.Ed.2d 84 (1973).
26
It would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers. Such an interpretation is unnecessary, as we have held and the Government concedes—that the manner in which a warrant is executed is subject to later judicial review as to its reasonableness. See Zurcher v. Stanford Daily, 436 U.S. 547, 559-560, 98 S.Ct. 1970, 1978-1979, 56 L.Ed.2d 525 (1978).20 More important, we would promote empty formalism were we to require magistrates to make explicit what unquestionably is implicit in bugging authorizations:21 that a covert entry, with its attendant interference with Fourth Amendment interests, may be necessary for the installation of the surveillance equipment. See United States v. London, 424 F.Supp. 556, 560 (Md.1976). We conclude, therefore, that the Fourth Amendment does not require that a Title III electronic surveillance order include a specific authorization to enter covertly the premises described in the order.22
The judgment of the Court of Appeals is
27
Affirmed.
28
Mr. Justice BRENNAN, with whom Mr. Justice STEWART joins except as to Part I, concurring in part and dissenting in part.
29
I concur in Parts I and II of the Court's opinion.
30
* I dissent from Part III for the reasons stated in the dissenting opinion of Mr. Justice STEVENS which I join.
II
31
I also dissent from Part IV. In my view, even reading Title III to authorize covert entries, the Justice Department's present practice of securing specific authorization for covert entries is not only preferable, see ante, this page n. 22, but also constitutionally required.
32
Breaking and entering into private premises for the purpose of planting a bug cannot be characterized as a mere mode of warrant execution to be left to the discretion of the executing officer. See ante, at 257. The practice entails an invasion of privacy of constitutional significance distinct from that which attends nontrespassory surveillance; indeed, it is tantamount to an independent search and seizure. First, rooms may be bugged without the need for surreptitious entry and physical invasion of private premises. See Lopez v. United States, 373 U.S. 427, 467-468, 83 S.Ct. 1381, 1402-1403, 10 L.Ed.2d 462 (1963) (BRENNAN, J., dissenting). Second, covert entry, a practice condemned long before we condemned unwarranted eavesdropping, see Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), breaches physical as well as conversational privacy. The home or office itself, that "inviolate place which is a man's castle," id., at 512 n. 4, 81 S.Ct. at 683 n. 4 is invaded. Third, the practice is particularly intrusive and susceptible to abuse since it leaves naked to the hands and eyes of government agents items beyond the reach of simple eavesdropping.
33
Because of these additional intrusions attendant to covert entries, the Constitution requires that government agents who wish to break into private premises first secure specific judicial authorization for the surreptitious entry. Authority for the physical invasion cannot be derived from a Title III order authorizing only electronic surveillance.
34
"[T]he Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant," Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 394 n. 7, 91 S.Ct. 1999, 2004, n. 7, 29 L.Ed.2d 619 (1971), in order to assure that those "searches deemed necessary [remain] as limited as possible." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038 (1971). See Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965); Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927).* As a consequence, a warrant that describes only the seizure of conversations cannot be read expansively to authorize constitutionally distinct physical invasions of privacy at the discretion of the executing officer. Rather, the Constitution demands that the necessity for home invasion be decided "by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).
35
I cannot agree that adherence to this principle would amount to "specification of the precise manner" in which Title III orders are executed. See ante, at 257. The warrant could, consistent with the command of the Fourth Amendment, leave the details of how best to proceed with the covert entry to the discretion of the executing officers. The warrant need only state, as under the present Justice Department practice, that "surreptitious entry for the purpose of installing and removing any electronic interception devices [is] to be utilized in accomplishing the oral interception." Ante, at 259 n. 22.
36
Nor can I agree that adherence to the strictures of the Warrant and Particularity Clauses of the Fourth Amendment would amount to "empty formalism." See ante, at 258. Since premises may be bugged through means less drastic than home invasion, requiring police to secure prior approval for covert entries may well prevent unnecessary and improper intrusions. In any event, that the present case may not appear particularly abusive cannot justify the Court's crabbed interpretation of the Fourth Amendment. Mr. Justice Bradley's admonition almost a century ago has even greater cogency in today's world of ever more intrusive governmental invasions of privacy:
37
"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886).
38
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
39
At midnight on the night of April 5-6, 1973, three persons pried open a window to petitioner's business office and secretly entered the premises. During the next three hours they moved freely about the building, eventually implanting a listening device in the ceiling. Several weeks later, they again broke into the office at night and removed the device.
40
The perpetrators of these break-ins were agents of the Federal Bureau of Investigation. Their office, however, carries with it no general warrant to trespass on private property. Without legislative or judicial sanction, the conduct of these agents was unquestionably "unreasonable" and therefore prohibited by the Fourth Amendment.1 Moreover, that conduct violated the Criminal Code of the State of New Jersey unless it was duly authorized.2
41
The only consideration that arguably might legitimate these "otherwise tortious and possibly criminal" invasions of petitioner's private property,3 is the fact that a federal judge had entered an order authorizing the agents to use electronic equipment to intercept oral communications at petitioner's office. The order, however, did not describe the kind of equipment to be used and made no reference to an entry, covert or otherwise, into private property. Nor does any statute expressly permit such activity or even authorize a federal judge to enter orders granting federal agents a license to commit criminal trespass. The initial question this case raises, therefore, is whether this kind of power should be read into a statute that does not expressly grant it.
42
In my opinion, there are three reasons, each sufficient by itself, for refusing to do so. First, until Congress has stated otherwise, our duty to protect the rights of the individual should hold sway over the interest in more effective law enforcement. Second, the structural detail of this statute precludes a reading that converts silence into thunder. Third, the legislative history affirmatively demonstrates that Congress never contemplated the situation now before the Court.
43
* "Congress, like this Court, has an obligation to obey the mandate of the Fourth Amendment." Marshall v. Barlow's, Inc., 436 U.S. 307, 334, 98 S.Ct. 1816, 1831, 56 L.Ed.2d 305 (STEVENS, J., dissenting). But Congress is better equipped than the Judiciary to make the empirical judgment that a previously unauthorized investigative technique represents a "reasonable" accommodation between the privacy interests protected by the Fourth Amendment and effective law enforcement.4 Throughout our history, therefore, it has been Congress that has taken the lead in granting new authority to invade the citizen's privacy.5 It is appropriate to accord special deference to Congress whenever it has expressly balanced the need for a new investigatory technique against the undesirable consequences of any intrusion on constitutionally protected interests in privacy. See id., at 334-339, 97 S.Ct., at 1831-1834.
44
But no comparable deference should be given federal intrusions on privacy that are not expressly authorized by Congress.6 In my view, a proper respect for Congress' important role in this area, as well as our tradition of interpreting statutes to avoid constitutional issues,7 compels this conclusion.
45
The Court does not share this view. For this is the third time in as many years that it has condoned a serious intrusion on privacy that was not explicitly authorized by statute and that admittedly raised a substantial constitutional question. In United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 612, the Court upheld an Executive regulation authorizing postal inspectors to open private letters without probable cause to believe they contained contraband.8 In United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376, the Court upheld orders authorizing the surreptitious pen-register surveillance of an individual and directing a private company to lend its assistance in that endeavor. Again, no explicit statutory authority existed for either order, despite Congress' otherwise comprehensive treatment of wire surveillance in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III).9
46
Today the Court has gone even further in finding an implicit grant of Executive power in Title III. That Title "does not refer explicitly to covert entry" of any kind, much less to entries that are tortious or criminal. Ante, at 249. Nevertheless, the Court holds that Congress, without having said so explicitly, has authorized the agents of a national police force in carrying out a surveillance order to break into private premises10 in violation of state law. Moreover, the Court finds in the silent statute an open-ended authorization to effect such illegal entries without an explicit judicial determination that there is probable cause to believe they are necessary or even appropriate. In my judgment, it is most unrealistic to assume that Congress granted such broad and controversial authority to the Executive without making its intention to do so unmistakably plain. This is the paradigm case in which "the exact words of the statute provide the surest guide to determining Congress' intent."11 I would not enlarge the coverage of the statute beyond its plain meaning.
II
47
The Court's conclusion that the statute implicitly authorizes breaking and entering is especially anomalous because the statutory scheme in all other respects is exhaustive and explicit.12 "It simply does not make sense"13 to conclude that Congress—having minutely detailed (1) the process that "[t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General" must follow in authorizing federal police officers to seek an electronic surveillance order,14 (2) the limited number of suspected offenses that will justify such an order,15 (3) the showing that must be made to "a Federal judge" before he issues the order,16 (4) the standard the judge must apply in approving, and the format he must follow in preparing, the order,17 (5) the time frame of execution and the manner of execution with respect to minimizing the interception of communications not likely to involve criminal activity,18 and even having more recently specified (6) certain "unobtrusive" means by which those orders might be carried out without the awareness of the suspect19—was content to leave national police officers with unbounded authority to carry out the resulting orders in any unspecified and obtrusive fashion they chose "subject of course to constitutional limitations." Ante, at 250.20
48
In my view, it is the opposite conclusion that is true to the statutory structure. For "one simply cannot assume that Congress," see ante, at 252, wished to erect various procedural barriers against poor judgment on the part of the Attorney General and his subordinates in seeking, and on the part of federal district judges in issuing, eavesdropping orders only to commit their execution, even through illegal means, entirely to "the judgment and moderation of officers whose own interests and records are often at stake in the search." Brinegar v. United States, 338 U.S. 160, 182, 69 S.Ct. 1302, 1314, 93 L.Ed. 1879 (Jackson, J., dissenting). The detailed timing and minimization restrictions on the executing officer, see n. 18, supra, as well as the 1970 amendment to Title III concerning "unobtrusive" execution, see n. 19, supra, lead inescapably to the conclusion that Congress withheld authority to trespass on private property except through the limited means expressly dealt with in the statute.21
III
49
Only one relevant conclusion can be drawn from a review of the entire legislative history of Title III. The legislators never even considered the possibility that they were passing a statute that would authorize federal agents to break into private premises without any finding of necessity by a neutral and detached magistrate.
A.
50
The meager legislative remarks that are said to demonstrate that Title III's supporters implicitly endorsed breaking and entering in order to install listening devices actually provide no support for that conclusion.
51
The reference to "judicial warrants authorizing [police] to hide bugs in the premises of criminal suspects," see ante, at 251 n. 12, was a comment by an opponent of the bill on investigative techniques that he believed this Court had ruled illegal in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040.22 Since neither he, nor any supporter of the bill, suggested that those techniques would be authorized by Title III, his comment is hardly indicative of a legislative endorsement of such practices. Moreover, there is a marked difference between the judicially warranted "hid[ing of] bugs in the premises of criminal suspects" and a forcible entry that has not been expressly authorized by any judge. The difference between subterfuge and forcible trespass should not be ignored.
52
That difference explains why the Court's reliance on two statements by proponents of Title III that emphasize the technological limitations on "bugs" and "taps" is misplaced. The proponents believed these limitations would discourage the frequent use and abuse of electronic surveillance. Thus, in answer to repeated charges that passage of Title III would recreate Hitler's Germany or anticipate Orwell's "1984," Senator Tydings, in a passage partially quoted by the Court, ante, at 252, argued:
53
"Contrary to what we have heard, electronic surveillance is not a lazy way to conduct an investigation. It will not be used wholesale as a substitute for physical investigation.
54
* * * * *
55
"The reason[s] for such sparing use are simple. First, electronic surveillance is really useful only in conspiratorial activities. . . .
56
"Second, surveillance is very difficult to use. Tape must be installed on telephones and wires strung. Bugs are difficult to install in many places since surreptitious entry is often impossible. Often, more than one entry is necessary to adjust equipment. . . .
57
"Third, monitoring this equipment requires the expenditure of a great amount of law enforcement's time . . . ." 114 Cong.Rec. 12988-12989 (1968) (emphasis added).23
58
Read in context, this and like commentary are inconsistent with, rather than an endorsement of, unauthorized break-ins. For although it is of course true that surreptitious entry is often "impossible" when it must be accomplished without violating the law, surreptitious entry is by no means impossible (indeed, it is hardly "difficult") if it may be effected by whatever means the police—unhampered by the provisions of the criminal law—can bring to their disposal. Despite the Court's understanding of it, I read Senator Tydings' remark as only one of many expressions by Title III's supporters of their belief that authorized electronic surveillance would be "carefully circumscribed," id., at 13203 (Sen. Scott), and "rigidly controlled," id., at 14715 (Sen. Tydings), not only by technology but also by "strict court supervision," id., at 13200 (Sen. Scott), the "strictest guidelines," id., at 16076 (Rep. Harsha), and "an elaborate system of checks and safeguards." Id., at 13204 (Sen. Scott).24
59
Even the opponents of Title III, in parading before Congress the various invasions of privacy that they felt would accompany the passage of the statute, never once referred to breaking and entering private property. E. g., id., at 14710 (Sen. Cooper); id., at 14732 (Sen. Yarborough); id., at 16066 (Rep. Celler). That they omitted such references while decrying far less aggravated invasions is strong evidence that they, at least, never thought about the issue that this case raises.25 And since the sponsors of the legislation expressly stated that they had specified "every possible constitutional safeguard for the rights of individual privacy," id., at 14469 (Sen. McClellan),26 their omission of any significant reference to these aggravated intrusions surely demonstrates that they did not consider this issue either.
60
In sum, as far as my research reveals, during the debates on Title III neither the proponents nor the opponents of the bill directly or indirectly expressed the view that the statute would authorize uninvited forcible trespasses by police officers as a means of implanting a listening device.
B
61
Because the drafters of Title III made "indiscriminate reference . . . to the types of surveillance this Court reviewed" in prior cases, ante, at 251, the Court draws the conclusion that Congress meant to authorize all "types of surveillance" discussed in those cases. The premise does not support the conclusion.
62
Many of those cases, including the two specifically cited by the Court,27 held that the police conduct involved was unlawful. Rather than endorsing all of the techniques discussed in those cases. Congress was quite clearly trying to avoid the incidents of unconstitutionality those cases had identified.28 Moreover, in drafting Title III, the Senate Judiciary Committee did more than merely isolate and exclude from the bill the illegal elements of the police activity involved in those cases. Thus, the Chairman of the Committee, in answer to a colleague's question whether Title III was drafted in conformity with the Fourth Amendment, stated:
63
"Completely so, let me say to my friend. Completely so, and it is even more restrictive. We have gone to every length which is proper, we think, to protect people's privacy." 114 Cong.Rec. 14470 (1968).
64
It is of greater importance, however, that although Congress was concerned with the "types of surveillance" involved in our prior cases, none of the congressional references to those cases discussed the type of entry made to effectuate the surveillance. Not a word in any of those pre-1968 opinions, save one, described an illegal entry or even implied that such an entry had occurred. Those opinions instead described situations in which a listening device had been surreptitiously placed: against an office wall in order to hear conversations in the next office, Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322; on the person of a federal agent who recorded a conversation in the defendant's laundry, On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270; in a cabaret, Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462; in a law office, Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394; against a spike inserted under a party wall, Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734; on the outside of a public telephone booth, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; and inside a private office, Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040. It is, of course, true that the conduct in each cited case was surreptitious, but there is a vast different between detective work that is merely clandestine and work that involves breaking and entering into private property. Before the decisions in Katz and Berger, the former technique was considered to be lawful, warrant or no warrant,29 whereas the latter was considered unlawful.30 The fact that Congress was prepared to enact a statute authorizing practices previously thought to be lawful surely does not justify the conclusion that it was equally prepared to authorize conduct that had always been made unlawful by the criminal laws of the various States.
65
Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561, was the only pre-1968 case in which this Court had actually confronted the implantation of an electronic listening device by way of a "trespass, and probably a burglary, for which any unofficial person should be, and probably would be, severely punished." Id., at 132, 74 S.Ct., at 383.31 The plurality of four, speaking through Mr. Justice Jackson, had this to say about the police conduct in that case:
66
"That officers of the law would break and enter a home, secrete such a device even in a bedroom, and listen to the conversations of the occupants for over a month would be incredible if it were not admitted. Few police measures have come to our attention that more flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment . . . ." Ibid.
67
No Member of the Court disagreed with this assessment, although a majority refused to overturn the conviction because the exclusionary rule did not then apply to the States. While it is true, as the Court points out, ante, at 247, that four Members of the Irvine Court adverted to the lack of a "search warrant or other process" to support the entry, 347 U.S., at 132, 74 S.Ct. at 382-383 (while the other three Members who discussed the issue found the police activity "offensive" and "revolting" without relying on the lack of a warrant32), it is also true that no Justice condoned a break-in absent some court order explicitly contemplating physical entry on the premises. Under any reading of the case, it cannot be taken as condoning official trespass and burglary absent specific authorization.
68
More importantly, the fact that Congress cited Irvine, without comment or explanation, when it was considering Title III cannot fairly be interpreted as an endorsement of the questionable police behavior that had been condemned so thunderously by Mr. Justice Jackson 14 years earlier. My respect for the lawmaking process forecloses the inference that Congress authorized burglarious conduct by such stealthy legislative history.
IV
69
Because it is not supported by either the text of the statute or the scraps of relevant legislative history,33 I fear that the Court's holding may reflect an unarticulated presumption that national police officers have the power to carry out a surveillance order by whatever means may be necessary unless explicitly prohibited by the statute or by the Constitution.
70
But surely the presumption should run the other way. Congressional silence should not be construed to authorize the Executive to violate state criminal laws or to encroach upon constitutionally protected privacy interests. Before confronting the serious constitutional issues raised by the Court's reading of Title III,34 we should insist upon an unambiguous statement by Congress that this sort of police conduct may be authorized by a court and that a specific showing of necessity, or at least probable cause, must precede such an authorization. Without a legislative mandate that is both explicit and specific, I would presume that this flagrant invasion of the citizen's privacy is prohibited. Cf. United States v. New York Telephone Co., 434 U.S., at 178-179, 98 S.Ct., at 375 (STEVENS, J., dissenting in part); United States v. Ramsey, 431 U.S., at 632, 97 S.Ct., at 1983 (STEVENS, J., dissenting).35
71
I respectfully dissent.
1
All types of electronic surveillance have the same purpose and effect: the secret interception of communications. As the Court set forth in Berger v. New York, 388 U.S. 41, 45-47, 87 S.Ct. 1873, 1876-1877, 18 L.Ed.2d 1040 (1967), however, this surveillance is performed in two quite different ways. Some surveillance is performed by "wiretapping," which is confined to the interception of communication by telephone and telegraph and generally may be performed from outside the premises to be monitored. For a detailed description, see Note, Minimization of Wire Interception: Presearch Guidelines and Postsearch Remedies, 26 Stan.L.Rev. 1411, 1414 n. 18 (1974). At issue in the present case is the form of surveillance commonly known as "bugging," which includes the interception of all oral communication in a given location. Unlike wiretapping, this interception typically is accomplished by installation of a small microphone in the room to be bugged and transmission to some nearby receiver. See McNamara, The Problem of Surreptitious Entry to Effectuate Electronic Eavesdrops: How Do You Proceed After the Court Says "Yes"?, 15 Am.Crim.L.Rev. 1, 2 (1977); Blakey, Aspects of the Evidence Gathering Process in Organized Crime Cases: A Preliminary Analysis, reprinted in the President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Organized Crime, App. C, 92, 97 (1967). Both wiretapping and bugging are regulated under Title III. See 18 U.S.C. §§ 2510(1) and (2).
2
Every electronic surveillance necessarily is "covert" in the sense that it must be "hidden; secret; disguised" to be effective. Webster's New International Dictionary 613 (2d ed. 1953). As used here, "covert entry" refers to the physical entry by a law enforcement officer into private premises without the owner's permission or knowledge in order to install bugging equipment. Generally, such an entry will require a breaking and entering. See discussion infra, at 253-254.
3
The Federal Courts of Appeals have given conflicting answers to these questions. See United States v. Finazzo, 583 F.2d 837 (CA6 1978); United States v. Santora, 583 F.2d 453 (CA9 1978); United States v. Scafidi, 564 F.2d 633 (CA2 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Ford, 180 U.S.App.D.C. 1, 553 F.2d 146 (1977); United States v. Agrusa, 541 F.2d 690 (CA8 1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977).
4
In relevant part, the Title III order of April 5 provided:
"[T]he Court finds:
"(a) There is probable cause to believe that Larry Dalia and others as yet unknown, have committed and are committing offenses involving theft from interstate shipments, in violation of Title 18, United States Code,
Section 659; sale or receipt of stolen goods, in violation of Title 18, United States Code, Section 2315; and interference with commerce by threats or violence, in violation of Title 18, United States Code, Section 1951; and are conspiring to commit such offenses in violation of Section 371 of Title 18, United States Code.
"(b) There is probable cause to believe that particular wire and oral communications concerning these offenses will be obtained through these interceptions, authorization for which is herewith applied. In particular, these wire and oral communications will concern the theft or robbery of goods moving in interstate commerce, and the transportation, sale, receipt, storage, or distribution of these stolen goods, and the participants in the commission of said offenses.
"(c) Normal investigative procedures reasonably appear to be unlikely to succeed and are too dangerous to be used.
* * * * *
"(e) There is probable cause to believe that the business office of Larry Dalia, consisting of an enclosed room, approximately fifteen (15) by eighteen (18) feet in dimension, and situated in the northwesterly corner of a one-story building housing Wrap-O-Matic Machinery Company, Ltd., and Precise Packaging, and located at 1105 West St. George Avenue, Linden, New Jersey, has been used, and is being used by Larry Dalia and others as yet unknown in connection with the commission of the above-described offenses.
"WHEREFORE, it is hereby ordered that:
"Special Agents of the Federal Bureau of Investigation, United States Department of Justice, are authorized . . . to:
* * * * *
"(b) Intercept oral communications of Larry Dalia, and others as yet unknown, concerning the above-described offenses at the business office of Larry Dalia, consisting of an enclosed room, approximately fifteen (15) by eighteen (18) feet in dimension, and situated in the northwesterly corner of a one-story building housing Wrap-O-Matic Machinery Company, Ltd., and Precise Packaging, and located at 1105 West St. George Avenue, Linden, New Jersey.
"(c) Such interceptions shall not automatically terminate when the type of communication described above in paragraphs (a) and (b) have first been obtained, but shall continue until communications are intercepted which reveal the manner in which Larry Dalia and others as yet unknown
participate in theft from interstate shipments; sale or receipt of stolen goods; and interference with commerce by threats or violence; and which reveal the identities of his confederates, their places of operation, and the nature of the conspiracy involved therein, or for a period of twenty (20) days from the date of this Order, whichever is earlier.
* * * * *
"PROVIDING THAT, this authorization to intercept oral and wire communications shall be executed as soon as practicable after signing of this Order and shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under Chapter 119 of Title 18 of the United States Code, and must terminate upon attainment of the authorized objective, [or] in any event, at the end of twenty (20) days from the date of this Order.
"PROVIDING ALSO, that Special Attorney James M. Deichert shall provide the Court with a report on the fifth, tenth, and fifteenth day following the date of this Order showing what progress has been made toward achievement of the authorized objective and the need for continued interception."
5
Count one charged petitioner and others with conspiring to transport, receive, and possess stolen goods in violation of 18 U.S.C. §§ 2, 2314, 2115, and 659. Count two charged petitioner and others with conspiring to obstruct interstate commerce in violation of 18 U.S.C. § 1951(b)(1). Count three charged that petitioner had transported stolen goods; count four charged that he had received stolen goods; and count five charged petitioner with possession of stolen goods.
6
Petitioner was convicted of receiving stolen goods and conspiring to transport, receive, and possess stolen goods. See n. 5, supra.
7
One authority has said that the constitutional validity of covert entries to install bugs "is plainly the consequence of [the] reasoning" of Katz v. United States. T. Taylor, Two Studies in Constitutional Interpretation 114 (1969).
8
Petitioner argues that, even if a covert entry would be constitutional in some cases, it was not in the present case, as there was no need for such entry. The District Court, however, specifically found that the "safest and most successful method of accomplishing the installation of the wiretapping device was through breaking and entering [the office]." 426 F.Supp. 862, 866 (1977). Moreover, in issuing the Title III order, the court found that "[n]ormal investigative procedures reasonably appear to be unlikely to succeed and are too dangerous to be used." App. 7a. And in his opinion denying petitioner's subsequent suppression motion, the same judge stated:
"The affidavits which supported the application for the warrant in question indicated that resort to electronic surveillance, to overhear meetings at Dalia's office and conversations on Dalia's telephones, was required to identify the sources of Dalia's stolen goods, those working with him to transport and store stolen property, and the scope of the conspiracy. Oral evidence of this criminal enterprise was only available inside Dalia's business premises." 426 F.Supp., at 866.
The District Court, therefore, concluded that the circumstances required the approach used by the officers, and nothing in the record brings this conclusion into question.
9
It is clear that Title III serves a substantial public interest. See n. 13, infra. Congress and this Court have recognized, however, that electronic surveillance can be a threat to the "cherished privacy of law-abiding citizens" unless it is subjected to the careful supervision prescribed by Title III. See United States v. United States District Court, 407 U.S. 297, 312, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972).
10
Congress explicitly confirmed the breadth of the power it had conferred on courts acting under Title III when it amended the Act in 1970. Pub.L. 91-358, Title II, § 211(b), 84 Stat. 654. Section 2518(4) now empowers a court authorizing electronic surveillance to "direct that a . . . landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively . . . ." (Emphasis added.) Thus, it appears that Congress anticipated that landlords and custodians may be enlisted to aid law enforcement officials covertly to enter and place the necessary equipment in private areas.
11
The only limitation Title III places on the manner in which these court orders are to be executed is in its requirements that no order extend beyond 30 days, and that every order must include provisions that it is to be executed as soon as practicable and in a manner that will minimize the interception of communications not within the purview of the order. See 18 U.S.C. § 2518(5).
12
Indeed, the nature of electronic surveillance involved in Berger v. New York, was mentioned on the floor of the Senate, when Senator Long observed that under the New York law, police could "obtain judicial warrants authorizing them to hide bugs in the premises of criminal suspects." 114 Cong.Rec. 14708 (1968). To be sure, in his comments Senator Long did not explicitly suggest that Title III would authorize such covert entries. See post, at 272. His statement confirmed, however, what had been strongly indicated prior to the bill's consideration by the full Congress: Members of Congress simply saw no distinction between electronic surveillance which required covert entry and that which required covert tapping of one's telephone. The invasion of the privacy of conversation is the same in both situations.
13
Title 18 U.S.C. § 2516 specifies that authorization for electronic surveillance may be sought only with respect to certain enumerated crimes. These include espionage, sabotage, treason, kidnaping, robbery, extortion, murder, various corrupt practices, and counterfeiting. According to the
Senate Report concerning Title III, "[e]ach offense has been chosen either because it is intrinsically serious or because it is characteristic of the operations of organized crime." S.Rep. No. 1097, 90th Cong., 2d Sess., 97 (1968). The need for use of electronic surveillance against organized crime had been thoroughly considered and documented, shortly before Congress began considering Title III, by a special organized-crime Task Force of a Presidential Commission charged with considering crime in the United States. The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Organized Crime 91-104 (1967); see United States v. United States District Court, 407 U.S., at 310 n. 9, 92 S.Ct., at 2133 n. 9. A summary of the Task Force's conclusions appeared in the Commission's report, which was repeatedly referred to during consideration of Title III. See The President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 200-203 (1967). In Congress, proponents of Title III, after hearing numerous witnesses testify concerning the importance of electronic surveillance in fighting organized crime, recommended the bill to their colleagues as "[l]egislation meeting the constitutional standards set out in [Supreme Court] decisions, and granting law enforcement officers the authority to tap telephone wires and install electronic surveillance devices in the investigation of major crimes." S.Rep. No. 1097, supra, at 75, U.S.Code Cong. & Admin.News, p. 2163, see id., at 74. Indeed, the Senate Report on Title III unequivocally stated that "[t]he major purpose of title III is to combat organized crime." Id., at 70, U.S.Code Cong. & Admin.News, p. 2157. The rapid developments in technology available to the criminal underworld make it all the more imperative that the Government not "deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its law-abiding citizens." United States v. United States District Court, supra, 407 U.S., at 312, 92 S.Ct., at 2134.
14
Although he cites no authority, Mr. Justice STEVENS apparently believes that a practicable alternative to covert entry would be installation of bugging devices through subterfuge. See post, at 272. Nowhere in the legislative history of Title III is there any indication that Congress wished to limit its authorization to bugs installed through subterfuge. Moreover, it is difficult to perceive why one means of gaining entry would be less intrusive than another. See, e. g., United States v. Ford, 414 F.Supp. 879 (D.C.1976), aff'd, 180 U.S.App.D.C. 1, 553 F.2d 146 (1977) (bomb-scare ruse).
15
Those few available devices that intercept conversations from outside of a building in many cases are impractical, either because of cost, reliability, or the configuration of the area being monitored. See U. S. National Commission for Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, Commission Studies 168-183 (1976); see, e. g., United States v. Ford, 414 F.Supp., at 881.
16
As we have concluded that Title III authorizes courts to approve covert entries to install electronic surveillance equipment, we do not consider whether such authority also is conferred by other federal enactments, such as Fed.Rule Crim.Proc. 41 or the All Writs Act, 28 U.S.C. § 1651.
17
There is no requirement in Title III that explicit authorization of covert entries be set forth in the court's order. The statutory requirement that the surveillance "should remain under the control and supervision of the authorizing court" 82 Stat. 211, § 801(d), merely emphasizes that courts acting under 18 U.S.C. § 2518 should utilize their power under § 2518(6) to require periodic progress reports after the installation of the wiretap or bug. If there is a requirement of explicit judicial authorization for covert entry, therefore, it must come from the Fourth Amendment alone.
18
Because of the strict requirements of Title III, all of the indicia of a warrant necessarily are present whenever an order under Title III is issued. Accord, United States v. Scafidi, 564 F.2d, at 644 (Gurfein, J., concurring). Indeed, it was Congress' express design to create under Title III a mechanism by which search warrants valid under the Fourth Amendment would be issued for electronic surveillance. See S.Rep.No.1097, supra n. 13, at 105; Controlling Crime Through More Effective Law Enforcement: Hearings on S. 300, etc., before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 176, 570, 919 (1967); Hearings on H.R.5037, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 917, 934 (1967). No less would be required for the court authorization of electronic surveillance under Title III to be constitutional, as electronic surveillance undeniably is a Fourth Amendment intrusion requiring a warrant. See, e. g., Katz v. United States, 389 U.S. 347, 352-353, 356-357, 88 S.Ct. 507, 511-512, 514, 19 L.Ed.2d 576 (1967). And we have explicitly recognized the necessity of a warrant in cases of electronic surveillance. See United States v. United States District Court, 407 U.S., at 316-320, 92 S.Ct. 2125, at 2136-2138, 32 L.Ed.2d 752.
19
For example, courts have upheld the use of forceful breaking and entering where necessary to effect a warranted search, even though the warrant gave no indication that force had been contemplated. See, e. g., United States v. Gerbato, 474 F.2d 40, 41 (CA3), cert. denied, 414 U.S. 864, 94 S.Ct. 39, 38 L.Ed.2d 84 (1973). To be sure, often it is impossible to anticipate when these actions will be necessary. See Note, Covert Entry in Electronic Surveillance: The Fourth Amendment Requirements, 47 Ford.L.Rev. 203, 214 (1978). Nothing in the decisions of this Court, however, indicates that officers requesting a warrant would be constitutionally required to set forth the anticipated means for execution even in those cases where they know beforehand that unannounced or forced entry likely will be necessary. See 2 W. LaFave, Search and Seizure 140 (1978).
20
The District Court found that covert entry in the present case was reasonable. The officers entered petitioner's office only twice: once to install the bug and once to remove it. There is no indication that their intrusion went beyond what was necessary to install and remove the equipment. See n. 8, supra.
21
In the present case, the District Court specifically noted that its order implicitly had authorized covert entry. See supra, at p. 246. Thus, contrary to the suggestion of the dissent, see post, at 270 n. 20, there is no question in this case "of the Executive's authority to break and enter at will without any judicial authorization."
22
Although explicit authorization of the entry is not constitutionally required, we do agree with the Court of Appeals that the "preferable approach" would be for Government agents in the future to make explicit to the authorizing court their expectation that some form of surreptitious entry will be required to carry out the surveillance. Indeed, the Solicitor General has informed us that the Department of Justice has adopted a policy requiring its officers "[to] include [in applications for Title III orders] a request that the order providing for the interception specifically authorize surreptitious entry for the purpose of installing and removing any electronic interception devices to be utilized in accomplishing the oral interception." See Brief for United States 56.
*
The Court's reliance upon United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing), for the opposite proposition is misplaced. In Cravero, police could not have anticipated the need to arrest the suspect at his home at the time the arrest warrant was issued. It would have been unreasonable, therefore, to require the warrant to specify a home arrest. Here, by contrast, the covert entry was easily foreseeable. There is no reason why the federal agents who secured the warrant could not have advised the judge who issued the warrant that they contemplated covert entry. Indeed, the current Justice Department practice of securing specific prior authorization for covert entries demonstrates the practicability of a constitutional prior-authorization requirement.
United States v. Gerbato, 474 F.2d 40, 41 (CA3 1973), is distinguishable for the same reason and also because Gervato involved a mere mode of warrant execution (forcible entry) rather than an invasion of two separate expectations of privacy.
1
See United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752. The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
2
N.J.Stat.Ann. §§ 2A:94-1, 2A:94-3 (West 1969).
3
T. Taylor, Two Studies in Constitutional Interpretation 110 (1969).
4
Cf. G. M. Leasing Corp. v. United States, 429 U.S. 338, 353, 97 S.Ct. 619, 629, 50 L.Ed.2d 530; United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87; Colonnade Catering Corp. v. United States, 397 U.S. 72, 76, 90 S.Ct. 774, 776, 25 L.Ed.2d 60.
5
"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." United States v. New York Telephone Co., 434 U.S. 159, 179-180, 98 S.Ct. 364, 376, 54 L.Ed.2d 376 (STEVENS, J., dissenting in part) (footnote omitted).
Mr. Justice Frankfurter gathered the pre-1945 statutes in his dissenting opinion in Davis v. United States, 328 U.S. 582, 616-623, 66 S.Ct., 1256, 1272-1276, 90 L.Ed. 1453. He commented that "[w]hat is significant about this legislation is the recognition by Congress of the necessity for specific Congressional authorization even for the search of vessels and other moving vehicles and the seizures of goods technically contraband." Id., at 616, n., 66 S.Ct., at 1273, n.
6
I realize that since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the Court has applied the same Fourth Amendment principles to state and federal law enforcement officers alike. Nonetheless, I purposely limit my discussion here to the federal context. For purposes of discussing the necessity of statutory authority, it seems useful to me to treat the Fourth Amendment concept of reasonableness as flexible enough to recognize differences between state and federal courts and police forces. Thus, because the power of the Federal Government to combat crime, like the jurisdiction of its courts, is more limited than the comparable power and jurisdiction inhering in the States, it is logical in the federal context to assume that governmental authority is lacking unless expressly mandated by legislation. See, e. g., Palmore v. United States, 411 U.S. 389, 396, 93 S.Ct. 1670, 1675, 36 L.Ed.2d 342; Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037; United States v. Five Gambling Devices, 346 U.S. 441, 74 S.Ct. 190, 98 L.Ed. 179.
7
See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547; Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141; Hannah v. Larche, 363 U.S. 420, 430, 80 S.Ct. 1502, 1508, 4 L.Ed.2d 1307; Murray v. The Charming Betsy, 2 Cranch 64, 2 L.Ed. 208.
8
It found authority for those searches in the Postal Service's recent reinterpretation of an awkwardly drawn 1866 statute that authorized certain border searches of "vessels" but that could not reasonably be read to authorize either the mail openings themselves or the regulation allowing them. Moreover, its adoption of that interpretation left it no choice but to resolve a troublesome constitutional question without any considered guidance from Congress. See 431 U.S., at 625-632, 97 S.Ct., at 1983-1987 (STEVENS, J., dissenting).
9
See 434 U.S., at 178-190, 97 S.Ct., at 375 (STEVENS, J., dissenting in part).
10
Although this case involves an office, the invasion of a home would raise precisely the same statutory issue.
11
"Congress drafted [Title III] with exacting precision. As its principal sponsor, Senator McClellan, put it:
" '[A] bill as controversial as this . . . requires close attention to the dotting of every "i" and the crossing of every "t" . . . .' [114 Cong.Rec. 14751 (1968).]
"Under these circumstances, the exact words of the statute provide the surest guide to determining Congress' intent, and we would do well to confine ourselves to that area." United States v. Donovan, 429 U.S. 413, 441, 97 S.Ct. 658, 675, 50 L.Ed.2d 652 (BURGER, C. J., concurring in part and dissenting in part).
12
See ante, at 249-250; nn. 13-18, infra, and text accompanying.
13
As Judge Merritt, writing for the Sixth Circuit, cogently observed:
"It simply does not make sense to imply Congressional authority for official break-ins when not a single line or word of the statute even mentions the possibility, much less limits or defines the scope of the power or describes the circumstances under which such conduct, normally unlawful, may take place. As the dissents of Holmes and Brandeis in Olmstead [v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944] suggest, this is a serious, if not a 'dirty,' business; and we do not believe we should imply the power to break in under the statute, as the government argues, when Congress has not confronted and debated the issue and expressed such an intention clearly.
* * * * *
"In some circumstances, the installation of an electronic bug may not be possible without a forcible breaking and entering of the suspect's premises, but that does not imply that the power to break and enter is subsumed in the warrant to seize the words. The breaking and entering aggravates the search, and it intrudes upon property and privacy interests not weighed in the statutory scheme, interests which have independent social value unrelated to confidential speech. We are not inclined to give the government the right by implication to intrude upon these interests by conducting official break-ins, especially when the purpose is secretly to monitor and record private conversations, a dangerous power otherwise carefully limited and defined by statute." United States v. Finazzo, 583 F.2d 837, 841-842 (CA6 1978). See also United States v. Santora, 583 F.2d 453, 456-466 (CA9 1978).
14
18 U.S.C. § 2516(1).
15
18 U.S.C. §§ 2516(1)(a)-(g).
16
"Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:
"(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
"(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
"(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
"(d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter.
"(e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and
"(f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results." 18 U.S.C. § 2518(1).
17
"(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that—
"(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
"(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
"(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
"(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
"(4) Each order authorizing or approving the interception of any wire or oral communication shall specify—
"(a) the identity of the person, if known, whose communications are to be intercepted;
"(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
"(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
"(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
"(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. . . ." 18 U.S.C. § 2518(3), (4).
18
"No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days." 18 U.S.C. § 2518(5).
The statute also details procedures for the storage and protective custody of the resulting tapes, 18 U.S.C. § 2518(8)(a)-(c), for authorized disclosures and uses of the tapes both in and out of court, 18 U.S . C. §§ 2517, 2518(9), and for after-the-fact notice to persons whose conversations were overheard. 18 U.S.C. § 2518(8)(d).
19
The following provision was added to Title III in 1970:
"An order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such carrier, landlord, custodian, or person is according the person whose communications are to be intercepted. Any communication common carrier, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant at the prevailing rates." 18 U.S.C. § 2518(4).
20
The Court analyzes this problem as simply one of Judicial authority under the statute. Ante, at 250, and n. 10. Even if I could agree that Title III afforded judges "broad" and unconfined authority with respect to break-ins, I would still be left with the problem, never mentioned by the Court, of the Executive's authority to break and enter at will without any judicial authorization.
Indeed, I am not at all certain that the Court puts any confines on either Judicial or Executive authority in this area, despite the lip service it pays to "constitutional limitations." For, having stated that "breaking and entering" in execution of a search warrant is constitutionally permissible "where such entry is the only means by which the warrant effectively may be executed," ante, at 247 (emphasis added), the Court then equates a surveillance order with a search warrant, but see Taylor, supra n. 3, at 84-85, and allows a break-in under the former upon a showing merely that the break-in was "the safest and most successful," rather than the "only," method of installing the device. 426 F.Supp. 862, 866.
21
A Congress that was careful to limit the temporal extent of electronic surveillance and the opportunity for it to infringe on protected (i. e., noncriminal) conversations, and one so quick to amend the statute to provide for "unobtrusive" entry through the aid of private persons (i. e., "custodians" and "landlords") who already have a degree of access to the property, surely cannot have condoned unlimited and unauthorized breaking and entering by police officers with the aid of nothing but a burglar's tools.
22
In full, the paragraph excerpted by the Court is as follows:
"In Berger against the State of New York, decided on June 12, 1967, the majority of the Court, speaking through Mr. Justice Clark, threw out the New York State court-approved eavesdropping statute, declaring it to be unconstitutional. The New York statute permitted the police to obtain judicial warrants authorizing them to hide bugs in the premises of criminal suspects. The Court's majority opinion outlawed this bugging statute because, it said, the procedures did not contain specific safeguards against violations of the fourth amendment, which limited police searches." 114 Cong.Rec. 14708 (1968) (Sen. Long of Missouri).
23
See also Anti-Crime Programs: Hearings on H.R. 5037, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1031 (1967), cited ante, at 251.
24
"[Title III] sets forth in the most elaborate and precise detail the safeguards surrounding the application to a court of competent jurisdiction for authority to make a wiretap. I am satisfied that it is fully designed to guard against any unwarranted invasion of the precious right of privacy." 114 Cong.Rec. 16276 (1968) (Rep. MacGregor). See also id., at 14763 (Sen. Percy); id., at 16296 (Rep. Boland); S.Rep.No.1097, 90th Cong., 2d Sess., 66 (1968).
On at least two occasions the Court has commented on the circumspection with which Title III was drafted:
"[Title III] sets forth the detailed and particularized application necessary to obtain such an order as well as the carefully circumscribed conditions for its use. The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression." United States v. United States District Court, 407 U.S., at 302, 92 S.Ct., at 2129 (emphasis added). See also Gelbard v. United States, 408 U.S. 41, 48, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179. See also n. 8, supra.
25
Had Congress expressly considered the issue, I am confident that it would not have granted the Executive the broad authority to break and enter that is conferred by the Court in today's decision. Illustrative of its probable reaction to such investigative techniques are the responses of some Members to the officially sanctioned break-in committed against the office of Daniel Ellsberg's psychiatrist, and to the possibility of official participation in the Watergate break-in. E. g., 119 Cong.Rec. 14607-14608 (1973) (Sen. Edwards); id., at 15332 (Rep. Sarasin).
26
The dimensions of the constitutional protection of privacy were certainly not underestimated by the supporters of Title III. Senator Lausche, for example, had this to say about the intent of the Framers of the Fourth Amendment:
"[T]hey also knew that the innocent individual would be protected in his home; that no one shall enter. Even though it is a hovel, to him it is a palace. So they wrote into the Constitution, regardless of how poor one's home may be, that it shall not be entered by the government without the law-enforcement official having first obtained a warrant for search and seizure issued on the basis of evidence establishing probable cause." 114 Cong.Rec. 14729 (1968).
27
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040. See also Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734; Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561.
28
See S.Rep.No.1097, supra, at 66, 75, 101.
29
E. g., On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed.2d 1270; Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322; Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944.
30
E. g., Silverman v. United States, supra, Irvine v. California, supra.
31
Mr. Justice Jackson described the entry as follows:
"On December 1, 1951, while Irvine and his wife were absent from their home, an officer arranged to have a locksmith go there and make a door key. Two days later, again in the absence of occupants, officers and a technician made entry into the home by the use of this key and installed a concealed microphone in the hall. A hole was bored in the roof of the house and wires were strung to transmit to a neighboring garage whatever sounds the microphone might pick up. Officers were posted in the garage to listen. On December 8, police again made surreptitious entry and moved the microphone, this time hiding it in the bedroom. Twenty days later they again entered and placed the microphone in a closet, where the device remained until its purpose of enabling the officers to overhear incriminating statements was accomplished." 347 U.S. at 130-131, 74 S.Ct. at 382.
32
Id., at 145, 74 S.Ct., at 392 (Frankfurter, J., dissenting, joined by Burton, J.); id., at 150, 74 S.Ct., at 390 (Douglas, J., dissenting).
33
The Court argues that Congress' goals in enacting the statute would be frustrated if Title III were not read to include the authority exercised by the Government in this case. Ante, at 252-254. Of course, if Congress intended to sanction "even the most reprehensible means for securing a conviction," Irvine, 347 U.S., at 146, 74 S.Ct., at 390 (Frankfurter, J., dissenting), then withholding some of those means would indeed frustrate the legislative purpose. But there is no reason to impute such an intent to Congress or to ignore its conscientious attention to the importance of safeguarding the rights of individual privacy. See 114 Cong.Rec. 14469-14470 (1968) (Sen. McClellan); see supra, at 272-273, 276.
Congress quite clearly expected exterior wiretaps to provide the most effective means of electronic surveillance authorized by Title III. The unavailability of certain interior "bugs"—i. e., those implanted by means of forcible trespass—can hardly be seen as frustrating the entire law enforcement scheme. E. g., S.Rep.No.1097, supra, n. 24, at 72; 114 Cong.Rec. 12988 (1968) (Sen. Tydings); id., at 13206 (Sen. Scott); id., at 14481 (Sen. McClellan); id., at 14714 (Sen. Murphy).
Congress' prediction proved correct:
"Telephone taps apparently account for most instances of electronic surveillance, and this can be accomplished in most circumstances by placing a tap on the line outside the premises of the suspect. According to the final report of the National Commission for Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, only 26 out of some 1,220 electronic surveillance orders executed between 1968 and 1973 involved a trespassory intrusion. National Wiretap Commission, Electronic Surveillance 15 (1967) . . . ." United States v. Finazzo, 583 F.2d, at 841 n. 13.
34
Compare opinion of the Court, ante, at 246-248, 254-259, with opinion of Mr. Justice BRENNAN, ante, at 259-262.
35
In addition to Title III, the Government claims authority for the break-ins under the federal "no-knock" statute, 18 U.S.C. § 3109, and under Fed.Rule Crim.Proc. 41. Because I believe that Title III has pre-empted the field of electronic surveillance, it is conclusive for me that it nowhere authorizes the entries involved in this case as a means of executing an eavesdropping order. Even if Congress had never enacted Title III, however, I would nonetheless conclude that these other asserted justifications for official breaking and entering are unavailing in this case. Both provisions refer to "warrants" issued by a magistrate with the awareness that their execution would probably require the police to find some otherwise illegal means of entering the premises. No such awareness was evidenced by the District Court when it authorized electronic surveillance in this case. See generally United States v. Finazzo, supra, at 845-848.
| 01
|
60 L.Ed.2d 156
99 S.Ct. 1667
441 U.S. 211
DOUGLAS OIL COMPANY OF CALIFORNIA et al., Petitioners,v.PETROL STOPS NORTHWEST et al.
No. 77-1547.
Argued Dec. 5, 1978.
Decided April 18, 1979.
Syllabus
Respondents are independent gasoline dealers, one of which operates in Arizona and several other States, and two of which operate in the vicinity of Tucson, Ariz. They brought civil antitrust actions in the District Court in Arizona against several large oil companies, including petitioners. While these proceedings were in pretrial stages, a Government antitrust investigation in the Central District of California culminated in an indictment for illegal price fixing in California, Arizona, and elsewhere, of petitioners and several other large oil companies, all of which ultimately pleaded nolo contendere. After unavailing discovery requests, respondents petitioned the District Court for the Central District of California to order release of certain grand jury transcripts under Fed.Rule Crim.Proc. 6(e)(2)(C)(i), which provides for disclosure of grand jury transcripts "when so directed by a court preliminarily to or in connection with a judicial proceeding." The Antitrust Division did not object to the disclosure. Over petitioners' objection, the transcripts' release was ordered by the District Court for the Central District of California, subject to various protective conditions. The Court of Appeals affirmed, relying upon United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077, which held that parties seeking grand jury transcripts must show that the material sought is needed to avoid a possible injustice in another judicial proceeding; that the disclosure need exceeds the need for continued secrecy; and that the disclosure request covers only the material needed. The court found that continued grand jury secrecy was not a substantial factor as the grand jury proceeding had concluded three years before and the transcripts had already been released to petitioners. Although the court conceded that it knew little about the Arizona proceedings, it speculated that the transcripts would facilitate prosecution of the civil suits.
Held:
1. The courts below did not err in selecting the standard governing disclosure of grand jury transcripts under Rule 6(e). Though the veil of grand jury secrecy should not be lifted unnecessarily, it is recognized that in some situations justice may demand that discrete portions of transcripts be made available in subsequent proceedings. Here the California District Court made clear that it had to be demonstrated that a particularized need for disclosure outweighed the interest in continued grand jury secrecy, and the Court of Appeals correctly understood the standard applied in Procter & Gamble, supra. Pp. 217-224.
2. In this case, however, the California District Court having custody of the grand jury transcripts abused its discretion in issuing the disclosure order, for that court concededly had no dependable knowledge of the status of, and the needs of the parties in, the Arizona civil suits. The court based its decision largely upon unsupported assertions of counsel during oral argument, supplemented by other inadequate data such as the criminal indictment and the civil complaints. Even a comparison of those documents did not clearly show what portions, if any, of the transcripts would be pertinent to the Arizona actions, which involved only some of the same parties and only some of the same territory as were involved in the criminal case. Under these circumstances, the better practice would have been for the California District Court, after making a written evaluation of the need for continued grand jury secrecy and a determination that the limited evidence before it showed that disclosure might be appropriate, to send the requested materials to the Arizona District Court where the civil cases were pending. Pp. 224-231.
571 F.2d 1127, reversed and remanded.
Max L. Gillam, Los Angeles, Cal., for petitioners.
Daniel L. Berman, Salt Lake City, Utah, for private respondents.
Sara S. Beale, Detroit, Mich., for respondent U. S.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents two intertwined questions concerning a civil litigant's right to obtain transcripts1 of federal criminal grand jury proceedings. First, what justification for disclosure must a private party show in order to overcome the presumption of grand jury secrecy applicable to such transcripts? Second, what court should assess the strength of this showing—the court where the civil action is pending, or the court that acts as custodian of the grand jury documents?
2
* Respondent Petrol Stops Northwest is a gasoline retailer unaffiliated with any major oil company. In 1973, it operated 104 service stations located in Arizona, California, Oregon, Washington, and several other States. On December 13, 1973, respondent filed an antitrust action in the District of Arizona against 12 large oil companies, including petitioners Douglas Oil Co. of California and Phillips Petroleum Co.2 In its complaint, respondent alleged that on January 1, 1973, there had been a sharp reduction in the amount of gasoline offered for sale to it, and that this reduction had resulted from a conspiracy among the oil companies to restrain trade in gasoline, in violation of §§ 1 and 2 of the Sherman Act. 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2. As a part of this conspiracy, respondent charged, petitioners and their codefendants had fixed the prices of gasoline at the retail and wholesale distribution levels in California, Oregon and Washington.3
3
Respondents Gas-A-Tron of Arizona and Coinoco also independently sell gasoline through service stations they own or lease. Unlike respondent Petrol Stops Northwest, however, their operations are limited to the vicinity of Tucson, Ariz. On November 2, 1973, Gas-A-Tron and Coinoco filed an antitrust complaint in the District of Arizona naming as defendants nine large oil companies, including petitioner Phillips Petroleum Co.4 Like respondent Petrol Stops Northwest, Gas-A-Tron and Coinco alleged that as of January 1, 1973, their supply of gasoline had been sharply reduced, and attributed this reduction to a conspiracy to restrain trade in violation of the Sherman Act. The specific charges of illegal behavior asserted by the two retailers substantially paralleled those made by Petrol Stops Northwest in its complaint, and included an allegation that the defendants had fixed the price of gasoline at the wholesale and retail levels.5
4
Although the issues and defendants in the two actions were substantially the same, the cases were assigned to two different judges in the District of Arizona. In February 1974, respondents served upon petitioners a set of interrogatories which included a request that petitioners state whether either of their companies at any time between January 1, 1968, and December 14, 1974, (sic), had had any communication with any of their competitors concerning the wholesale price of gasoline to be sold to unaffiliated retailers. Petitioners also were asked to produce any documents they had concerning such communications. Petitioners responded that they were aware of no such communications, and therefore could produce no documents pertinent to the request.6
5
In the meantime, the Antitrust Division of the Department of Justice had been investigating since 1972 the pricing behavior on the west coast of several major oil companies, including petitioners. See App. 26. As part of this investigation, employees of petitioners were called to testify before a grand jury empaneled in the Central District of California. The Government's investigation culminated on March 19, 1975, when the grand jury returned an indictment charging petitioners and four other oil companies with having conspired to fix the price of "rebrand gasoline" in California, Oregon, Washington, Nevada, and Arizona.7 The indictment alleged that the price-fixing conspiracy had begun in July 1970 and had continued at least until the end of 1971.
6
Although initially all six defendants charged in the criminal indictment pleaded not guilty, by December 1975, each had pleaded nolo contendere and was fined $50,000. Before changing their pleas, petitioners, acting pursuant to Fed.Rule Crim.Proc. 16(a)(1)(A), asked the District Court for the Central District of California to give them copies of the transcripts of testimony given by their employees before the grand jury. Their request was granted, and it appears that petitioners continue to possess copies of these transcripts.
7
In October 1976, respondents served upon petitioners requests under Fed.Rule Civ.Proc. 34 for production of the grand jury transcripts in petitioners' possession. Petitioners objected to the requests for production, arguing that the transcripts were not relevant to the private antitrust actions and that they were not likely to lead to any admissible evidence. Respondents did not pursue their discovery requests by making a motion in the Arizona trial court under Fed.Rule Civ.Proc. 37 to compel discovery. See n. 17, infra. Rather, they filed a petition in the District Court for the Central District of California asking that court, as guardian of the grand jury transcripts under Fed.Rule Crim.Proc. 6(e), to order them released to respondents. An attorney from the Antitrust Division of the Department of Justice appeared and indicated that the Government had no objection to respondents' receiving the transcripts already made available to petitioners under Fed.Rule Crim.Proc. 16(a)(1)(A). He suggested to the court, however, that the real parties in interest were petitioners, and therefore that they should be given an opportunity to be heard. The California District Court accepted this suggestion, and petitioners participated in the proceedings as parties adverse to respondents.
8
After briefing and oral argument, the court ordered the Chief of the Antitrust Division's Los Angeles Office "to produce for [respondents'] inspection and copying all grand jury transcripts previously disclosed to Phillips Petroleum Company or Douglas Oil Company of California or their attorneys relating to the indictment in United States v. Phillips, et al., Criminal Docket No. 75-377." App. 48-49. The production order was subject, however, to several protective conditions. The transcripts were to "be disclosed only to counsel for [respondents] in connection with the two civil actions" pending in Arizona. Furthermore, under the court's order the transcripts of grand jury testimony "may be used . . . solely for the purpose of impeaching that witness or refreshing the recollection of a witness, either in deposition or at trial" in the Arizona actions. Finally, the court forbade any further reproduction of the matter turned over to respondents, and ordered that the material be returned to the Antitrust Division "upon completion of the purposes authorized by this Order."
9
On appeal, the Ninth Circuit affirmed the disclosure order. Petrol Stops Northwest v. United States, 571 F.2d 1127 (1978). The Court of Appeals noted that under United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), a party seeking access to grand jury transcripts must show a "particularized need." In evaluating the strength of the need shown in the present case, the Ninth Circuit considered two factors: the need for continued grand jury secrecy and respondents' need for the requested material. The court found the former need to be insubstantial, as the grand jury proceeding had concluded three years before and the transcripts already had been released to petitioners. As to respondents' claim, the court conceded that it knew little about the Arizona proceedings, but speculated that the transcripts would facilitate the prosecution of respondents' civil suits: Petitioners' answers to the 1974 interrogatories concerning price communications with competitors appeared to be at odds with their pleas of nolo contendere in the California criminal action.
II
10
Petitioners contend that the courts below erred in holding that, because the grand jury had dissolved and the requested material had been disclosed already to the defendants, respondents had to show only a "slight need" for disclosure.8 According to petitioners, this approach to disclosure under Fed.Rule Crim.Proc. 6(e) is contrary to prior decisions of this Court indicating that "a civil litigant must demonstrate a compelling necessity for specified grand jury materials before disclosure is proper." Brief for Petitioners 16.
11
We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. See, e. g., United States v. Procter & Gamble Co., supra.9 In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.10
12
For all of these reasons, courts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury. At the same time, it has been recognized that in some situations justice may demand that discrete portions of transcripts be made available for use in subsequent proceedings. See, e. g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233-234, 60 S.Ct. 811, 849, 84 L.Ed. 1129 (1940). Indeed, recognition of the occasional need for litigants to have access to grand jury transcripts led to the provision in Fed.Rule Crim.Proc. 6(e)(2)(C)(i) that disclosure of grand jury transcripts may be made "when so directed by a court preliminarily to or in connection with a judicial proceeding."11
13
In United States v. Procter & Gamble Co., the Court sought to accommodate the competing needs for secrecy and disclosure by ruling that a private party seeking to obtain grand jury transcripts must demonstrate that "without the transcript a defense would be greatly prejudiced or that without reference to it an injustice would be done." 356 U.S., at 682, 78 S.Ct., at 986. Moreover, the Court required that the showing of need for the transcripts be made "with particularity" so that "the secrecy of the proceedings [may] be lifted discretely and limitedly." Id., at 683, 78 S.Ct., at 987. Accord, Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959).
14
In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the Court considered a request for disclosure of grand jury records in quite different circumstances. It was there held to be an abuse of discretion for a District Court in a criminal trial to refuse to disclose to the defendants the grand jury testimony of four witnesses who some years earlier had appeared before a grand jury investigating activities of the defendants. The grand jury had completed its investigation, and the witnesses whose testimony was sought already had testified in public concerning the same matters. The Court noted that "[n]one of the reasons traditionally advanced to justify nondisclosure of grand jury minutes" was significant in those circumstances, id., at 872 n. 18, 86 S.Ct., at 1850 n. 18, whereas the defendants had shown it to be likely that the witnesses' testimony at trial was inconsistent with their prior grand jury testimony.
15
From Procter & Gamble and Dennis emerges the standard for determining when the traditional secrecy of the grand jury may be broken: Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.12 Such a showing must be made even when the grand jury whose transcripts are sought has concluded its operations, as it had in Dennis. For in considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties. Concern as to the future consequences of frank and full testimony is heightened where the witness is an employee of a company under investigation. Thus, the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities.13
16
It is clear from Procter & Gamble and Dennis that disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure. It is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification. Accord, Illinois v. Sarbaugh, 552 F.2d 768, 774 (CA7), cert. denied sub nom. J. L. Simmons Co. v. Illinois, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977); U. S. Industries, Inc. v. United States District Court, 345 F.2d 18, 21 (CA9), cert. denied, 382 U.S. 814, 86 S.Ct. 32, 15 L.Ed.2d 62 (1965); 1 C. Wright, Federal Practice & Procedure § 106, p. 173 (1969). In sum, as so often is the situation in our jurisprudence, the court's duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court. And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material, as did the District Court in this case. Moreover, we emphasize that a court called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion. See Pittsburgh Plate Glass Co. v. United States, supra, at 399, 79 S.Ct. 1237, at 1240, 3 L.Ed.2d 1323.
17
Applying these principles to the present case, we conclude that neither the District Court nor the Court of Appeals erred in the standard by which it assessed the request for disclosure under Rule 6(e). The District Court made clear that the question before it was whether a particularized need for disclosure outweighed the interest in continued grand jury secrecy. See App. 53-55. Similarly, the Court of Appeals correctly understood that the standard enunciated in Procter & Gamble requires a court to examine the extent of the need for continuing grand jury secrecy, the need for disclosure, and the extent to which the request was limited to that material directly pertinent to the need for disclosure.14
III
18
Petitioners contend, irrespective of the legal standard applied, that the District Court for the Central District of California was not the proper court to rule on respondents' motion for disclosure. Petitioners note that the Court of Appeals and the District Court both purported to base their decisions in part upon the need for use of the requested material in the civil antitrust proceedings pending in Arizona.15 This determination necessarily involved consideration of the nature and status of the Arizona proceedings, matters peculiarly within the competence of the Arizona District Court.
19
Although the question is an important one, this Court heretofore has had no occasion to consider which court or courts may direct disclosure of grand jury minutes under Fed.Rule Crim.Proc. 6(e).16 The federal courts that have addressed the question generally have said that the request for disclosure of grand jury minutes under Rule 6(e) must be directed toward the court under whose auspices the grand jury was empaneled. See Illinois v. Sarbaugh, supra, 772-773; Gibson v. United States, 131 U.S.App.D.C. 143, 144, 403 F.2d 166, 167 (1968); Herman Schwabe, Inc. v. United Shoe Machinery Corp., 21 F.R.D. 233, 235 (1957); accord, 1 Wright, supra, at § 106, p. 174. But see United States v. American Oil Co., 264 F.Supp. 93, 95 (ED Mo.1966). Indeed, those who seek grand jury transcripts have little choice other than to file a request with the court that supervised the grand jury, as it is the only court with control over the transcripts.17
20
Quite apart from practical necessity, the policies underlying Rule 6(e) dictate that the grand jury's supervisory court participate in reviewing such requests, as it is in the best position to determine the continuing need for grand jury secrecy. Ideally, the judge who supervised the grand jury should review the request for disclosure, as he will have first-hand knowledge of the grand jury's activities. But even other judges of the district where the grand jury sat may be able to discover facts affecting the need for secrecy more easily than would judges from elsewhere around the country. The records are in the custody of the district court, and therefore are readily available for reference. Moreover, the personnel of that court and particularly those of the United States Attorney's office who worked with the grand jury—are more likely to be informed about the grand jury proceedings than those in a district that had no prior experience with the subject of the request. We conclude, therefore, that, in general, requests for disclosure of grand jury transcripts should be directed to the court that supervised the grand jury's activities.
21
It does not follow, however, that in every case the court in which the grand jury sat should make the final decision whether a request for disclosure under Rule 6(e) should be granted. Where, as in this case, the request is made for use in a case pending in another district, the judges of the court having custody of the grand jury transcripts will have no firsthand knowledge of the litigation in which the transcripts allegedly are needed, and no practical means by which such knowledge can be obtained. In such a case, a judge in the district of the grand jury cannot weigh in an informed manner the need for disclosure against the need for maintaining grand jury secrecy. Thus, it may well be impossible for that court to apply the standard required by the decisions of this Court, reiterated above, for determining whether the veil of secrecy should be lifted. See supra, at 221-224.
22
In the Electrical Equipment Cases, a federal court contemplated a similar quandary. Following the convictions of 29 heavy electrical equipment manufacturers for price fixing, about 1,900 private damages suits were filed in 34 Federal Districts around the country. See Note, Release of Grand Jury Minutes in the National Deposition Program of the Electrical Equipment Cases, 112 U.Pa.L.Rev. 1133 (1964). During one of these suits, plaintiffs asked the District Court for the Eastern District of Pennsylvania to disclose portions of a witness' grand jury testimony so that they could be used to refresh the witness' memory during a deposition. Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 486 (ED Pa.1962). The request was directed to Judge Clary, who had supervised the grand jury and also was in charge of the deposition. He had no difficulty, therefore, setting forth in detail in his opinion both the need for secrecy and the need for disclosure.
23
Recognizing, however, that the other District Courts in which related actions were pending might face similar requests for the grand jury minutes under his control, Judge Clary outlined a procedure by which parties in the future could put forward such requests. In the court's words:
24
"[T]he Grand Jury transcript of any witness deposed in [these suits], either in this district or in any other district of the United States in which these cases are pending, should be made available to the deposition Judge for use in his district. There may be and probably will be many instances during these national depositions when disclosure may be advisable. . . . The refusal [to order disclosure in this case] cannot rule out production where in camera examination by a deposition Judge uncovers material discrepancy or significant facts which the witness concealed, or failed to remember, at his deposition. Such disclosure as is necessary to uncover full and complete facts must be allowed. If, at the completion of any deposition taken in the national program, a motion is made for the production of that witness' Grand Jury testimony, and if the deposition Judge requests it from this Court for examination in camera, the testimony will be immediately made available to him. The deposition Judge may then contrast the Grand Jury testimony with the deposition and determine, in his own discretion, whether in the interest of justice there is compelling need for disclosure." Id., at 491.
25
Because Judge Clary in his opinion had discussed with care the various secrecy concerns as they applied to the transcripts before him, district courts called upon in the future to rule upon disclosure motions could weigh these concerns against the need for disclosure. In this way, the court provided precisely what was required by the situation: a coordinating of the informed views of both the civil trial court and the grand jury court concerning the propriety of disclosing portions of the grand jury minutes. Several other federal courts, recognizing the need for collaboration, have devised means by which both the court of the grand jury and the court of the collateral civil proceeding may participate in the decision whether transcripts should be released under Rule 6(e). See In re 1975-2 Grand Jury Investigation, 566 F.2d 1293, 1296 (CA5 1978); Illinois v. Sarbaugh, 552 F.2d, at 773 n. 5; Baker v. United States Steel Corp., 492 F.2d 1074, 1076-1077 (CA2 1974); Gibson v. United States, 131 U.S.App.D.C., at 144-145, 403 F.2d, at 167-168.
26
In the present case, the District Court for the Central District of California was called upon to make an evaluation entirely beyond its expertise. The District Judge readily conceded that he had no knowledge of the civil proceedings pending several hundred miles away in Arizona. App. 58. Nonetheless, he was asked to rule whether there was a "particularized need" for disclosure of portions of the grand jury transcript and whether this need outweighed the need for continued grand jury secrecy. Generally we leave it to the considered discretion of the district court to determine the proper response to requests for disclosure under Rule 6(e). See Pittsburgh Plate Glass Co. v. United States, 360 U.S., at 399, 79 S.Ct. 1237, at 1240, 3 L.Ed.2d 1323. We have a duty, however, to guide the exercise of discretion by district courts, and when necessary to overturn discretionary decisions under Rule 6(e). See, e. g., Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).
27
We find that the District Court here abused its discretion in releasing directly to respondents the grand jury minutes they requested. Appreciating that it was largely ignorant of the Arizona civil suits, the court nonetheless made a judgment concerning the relative needs for secrecy and disclosure.18 The court based its decision largely upon the unsupported assertions of counsel during oral argument before it, supplemented only by the criminal indictment returned by the grand jury, the civil complaints, and petitioners' response to a single interrogatory that appeared to be inconsistent with petitioners' nolo contendere plea in the criminal case. Even the court's comparison of the criminal indictment and the civil complaints did not indicate unambiguously what, if any, portions of the grand jury transcripts would be pertinent to the subject of the Arizona actions, as only some of the same parties were named and only some of the same territory was covered.
28
The possibility of an unnecessary breach of grand jury secrecy in situations such as this is not insignificant. A court more familiar with the course of the antitrust litigation might have seen important differences between the allegations of the indictment and the contours of the conspiracy respondents sought to prove in their civil actions—differences indicating that disclosure would likely be of little value to respondents, save perhaps as a mechanism for general discovery. Alternatively, the courts where the civil proceedings were pending might have considered disclosure at that point in the litigation to be premature; if there were to be conflicts between petitioners' statements and their actions in the criminal proceedings, the court might have preferred to wait until they ripened at depositions or even during testimony at trial.
29
Under these circumstances, the better practice would have been for the District Court, after making a written evaluation of the need for continued grand jury secrecy and a determination that the limited evidence before it showed that disclosure might be appropriate, to send the requested materials to the courts where the civil cases were pending.19 The Arizona court, armed with their special knowledge of the status of the civil actions, then could have considered the requests for disclosure in light of the California court's evaluation of the need for continued grand jury secrecy. In this way, both the need for continued secrecy and the need for disclosure could have been evaluated by the courts in the best position to make the respective evaluations.20
30
We do not suggest, of course, that such a procedure would be required in every case arising under Rule 6(e). Circumstances that dictate the need for cooperative action between the courts of different districts will vary, and procedures to deal with the many variations are best left to the rulemaking procedures established by Congress. Undoubtedly there will be cases in which the court to whom the Rule 6(e) request is directed will be able intelligently, on the basis of limited knowledge, to decide that disclosure plainly is inappropriate or that justice requires immediate disclosure to the requesting party, without reference of the matter to any other court. Our decision today therefore is restricted to situations, such as that presented by this case, in which the district court having custody of the grand jury records is unlikely to have dependable knowledge of the status of, and the needs of the parties in, the civil suit in which the desired transcripts are to be used.
31
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
32
It is so ordered.
33
Mr. Justice REHNQUIST, concurring.
34
I join the Court's opinion because I agree with its conclusions on the merits of the issue of the availability of the grand jury transcripts to these private treble-damages action plaintiffs. I do not feel that the Court can leave entirely unnoticed, however, the total absence of any reference by either of the parties or by the Court of Appeals to the basis upon which that court took jurisdiction of the petitioners' "appeal" from the order of the District Court granting access to the grand jury minutes. At the same time, I am handicapped in formulating a view of my own on the subject, because of the absence of any assistance from the parties or any consideration of the question by the Court of Appeals or by this Court. But in order for us to have jurisdiction over the case, the case must be properly "in" the Court of Appeals for purposes of 28 U.S.C. § 1254. Liberty Mutual Life Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976). And it may well be that the availability to the losing party of a right to appeal an order such as this may be a factor in deciding whether the proceedings should ultimately be treated as part of the discovery in the court in which the treble-damages action is pending, or as a separate proceeding in the court which conducted the grand jury proceeding.
35
This case is not like United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). In Procter & Gamble, the defendants in a civil action brought by the Government sought discovery of grand jury minutes pursuant to Fed.Rule Civ.Proc. 34.* The District Court granted discovery, and the Government deliberately took a default in order to obtain review of the discovery ruling in the course of its appeal from a "final judgment" of the District Court pursuant to 15 U.S.C. § 29. 356 U.S., at 680, 78 S.Ct., at 985. But absent such extraordinary circumstances, our cases and those of the Courts of Appeals hold that review of the granting or denial of discovery is not immediately reviewable, except perhaps by way of mandamus for gross abuse of discretion on the part of the trial court. See, e. g., Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940).
36
Two Courts of Appeals have taken different approaches to the issue of appealability of orders regarding disclosure of grand jury minutes. Compare Baker v. United States Steel Corp., 492 F.2d 1074 (CA2 1974), with Illinois v. Sarbaugh, 552 F.2d 768 (CA7), cert. denied sub nom. J. L. Simmons Co. v. Illinois, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977). Since all that is presented to us in this case is an effort to obtain appellate review of an order by the court having custody of the grand jury transcript directing that the transcript be turned over to a party applying for it, different factual permutations which might raise and require different analysis in terms of appealability need not be decided. For example, I am not at all sure that an order of the grand jury court transferring the transcripts to the civil court, as contemplated by the Court's decision, ante, at 230, would be appealable. See Baker v. United States Steel Corp., supra. Nor am I certain that I would agree with the analysis of the Court of Appeals for the Seventh Circuit in Illinois v. Sarbaugh, supra, as to the authority under which the district court exercises jurisdiction in this type of case. Nonetheless, I believe that since an order such as is involved in this case disposes of all of the contentions of the parties and terminates a separate proceeding pending before the grand jury court, it is therefore appealable as a "final decision" under 28 U.S.C. § 1291. See Illinois v. Sarbaugh, supra, at 773. If I am correct in this conclusion, this case was "in the court of appeals" from the time that petitioners filed their notice of appeal from the order of the District Court, and we may therefore exercise our certiorari jurisdiction granted by 28 U.S.C. § 1254. Satisfied at least for now with this analysis of the jurisdictional predicate to the case, I join the Court's opinion on the merits.
37
Mr. Justice STEVENS, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting.
38
Although I join all but the last nine paragraphs of the Court's opinion, I cannot agree with the conclusion that the District Judge sitting in the Central District of California should not have granted access to the grand jury transcripts subject to the conditions stated in his order. More fundamentally, I do not share the Court's readiness to review the District Judge's exercise of his broad discretion in this matter in the absence of any allegation of egregious abuse on his part and in the face of the confirmation of his conclusion by the Court of Appeals.1
39
Before he acted, the District Judge allowed petitioners to participate as real parties in interest in order to explain their opposition to disclosure of the transcripts,2 he offered to communicate with the District Judges in Arizona,3 he obtained the views of the Antitrust Division of the Department of Justice,4 and he compared the charges in the indictment with the allegations in the complaint for treble damages.5 Everything called to his attention by respondents supported the conclusion that the grand jury transcripts would be highly relevant in the civil litigation,6 and petitioners not only made no concrete showing of irrelevance in rebuttal,7 but also passed up two procedural opportunities to make such a showing.8 Since the transcripts had already been released to the defendants, no interest in protecting witnesses from possible retaliation remained. The Government foresaw no other secrecy problems.
40
Had I been the District Judge presented with respondents' request, I would have exercised my discretion in the same way he did. In light of today's holding, it now appears that I would have been wrong. But I do not find the Court's view on the merits of the decision below nearly as troubling as its expansive view of its appellate function in this area in which trial judges usually have broad latitude.9 Whatever its validity, the decision of the District Judge as affirmed by the Court of Appeals was surely not very wide of the mark. Accordingly, for the Court to overturn that decision is to move decisively in the direction of equating an "abuse of discretion" with an exercise of discretion with which it disagrees. I cannot join in this rearrangement of the respective roles of trial and appellate courts.
1
"Transcripts" is used herein to refer to the verbatim recordings of testimony given before a grand jury.
2
Also named as defendants were Continental Oil Co. (an affiliate of petitioner Douglas Oil); Gulf Oil Co.; Shell Oil Co.; Exxon Corp.; Mobil Oil Corp.; Union Oil Co. of California; Amoco Oil Co.; Standard Oil Co. of California; Standard Oil Co. of Indiana; and Armour Oil Co.
3
In addition, the complaint charged that the defendants had tied the sale of gasoline to the leasing of service stations, had entered into a concerted refusal to deal with independent gasoline retailers, had maintained a monopoly over the refinery capacity of the United States, and had set predatory prices.
4
Also named as defendants were Union Oil Co. of California; Amoco Oil Co.; Standard Oil Co. of Indiana; Shell Oil Co.; Mobil Oil Corp.; Standard Oil Co. of California; Exxon Corp.; and Diamond Shamrock.
5
In addition, Gas-A-Tron and Coinoco charged that the oil companies had violated the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. §§ 13-13b and 21a, by selling gasoline to affiliated retailers at prices more favorable than those offered unaffiliated retailers such as respondents.
6
In its response to the interrogatory, petitioner Phillips stated:
"[S]ince October, 1969, it has been Phillips' policy to refrain from any conversations or communications with any and all of its competitors relating in any way to prices except in situations where Phillips is selling to or buying from a competitor and the price of the product being bought and sold obviously must be discussed." 2 Record 6.
7
In addition to petitioners, Powerene Oil Co., Fletcher Oil & Refining Co., Golden Eagle Refining Co., and MacMillan Ring-Free Oil Co. were named as codefendants. The indictment alleged, in part, that the defendants and co-conspirators had engaged in an unlawful combination and conspiracy in restraint of trade, "in violation of Section 1 of the Act of Congress of July 2, 1890, as amended (15 U.S.C. § 1), commonly known as the Sherman Act. . . . The aforesaid combination and conspiracy has consisted of a continuing agreement, understanding and concert of action among the defendants and co-conspirators, the substantial terms of which have been to increase, fix, stabilize and maintain the price of rebrand gasoline." App. 126-127.
"Rebrand gasoline" is defined in the indictment to mean "gasoline sold for resale in service stations under a trademark or brand name not owned or controlled by an oil refiner." Id., at 124. It appears to be undisputed that the gasoline purchased by respondents from the major oil companies was "rebrand gasoline" within the meaning of the indictment.
8
As an initial matter, respondents argue that petitioners lack standing to object to the disclosure order, as the only interest in grand jury secrecy remaining in this case is a public one. Accord, United States v. American Oil Co., 456 F.2d 1043 (CA3 1972) (per curiam ). Contra, Illinois v. Sarbaugh, 552 F.2d 768 (CA7), cert. denied sub nom. J. L. Simmons Co. v. Illinois, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977). There can be no question that there is standing under Art. III for petitioners to object to the disclosure order, as release of the transcripts to their civil adversaries could result in a substantial injury to them. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Moreover, the interest petitioners assert is one legally protected under the Court's rulings concerning grand jury secrecy. One of the several interests promoted by grand jury secrecy is the protection of the innocent accused from disclosure of the accusations made against him before the grand jury. See n. 10, infra. Although petitioners in the present case were indicted and pleaded nolo contendere, under our decisions they nonetheless are legally entitled to protection, as there may have been accusations made for which no indictment was returned.
9
Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye. See Calkins, Grand Jury Secrecy, 63 Mich.L.Rev. 455, 457 (1965). The rule of grand jury secrecy was imported into our federal common law and is an integral part of our criminal justice system. See Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 1238, 87 L.Ed. 1546 (1943). Federal Rule Crim.Proc. 6(e) codifies the requirement that grand jury activities generally be kept secret, by providing:
"A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, [or] an attorney for the Government . . . shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. . . . A knowing violation of rule 6 may be punished as a contempt of court."
Although the purpose for grand jury secrecy originally was protection of the criminally accused against an overreaching Crown, see Calkins, Grand Jury Secrecy, supra, with time it came to be viewed as necessary for the proper functioning of the grand jury. See n. 10, infra.
10
In United States v. Procter & Gamble Co., 356 U.S. 677, 681-682, n. 6, 78 S.Ct. 983, 986, n. 6, 2 L.Ed.2d 1077 (1958), we said that the reasons for grand jury secrecy had been summarized correctly in United States v. Rose, 215 F.2d 617, 628-629 (CA3 1954):
" '(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.' "
11
Federal Rule Crim.Proc. 6(e) provides in full:
"(e) Secrecy of Proceedings and Disclosure.—
"(1) General Rule.—A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or any person to whom disclosure is made under paragraph (2)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of rule 6 may be punished as a contempt of court.
"(2) Exceptions.—
"(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to—
"(i) an attorney for the government for use in the performance of such attorney's duty; and
"(ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce Federal criminal law.
"(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney's duty to enforce Federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made.
"(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made—
"(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or
"(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.
"(3) Sealed indictments.—The Federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons."
Although Fed.Rule Crim.Proc. 6(e) was amended in 1977, all parties agree that the changes do not bear upon the issues in the present case.
12
As noted in United States v. Procter & Gamble Co., 356 U.S., at 683, 78 S.Ct. at 987, the typical showing of particularized need arises when a litigant seeks to use "the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like." Such use is necessary to avoid misleading the trier of fact. Moreover, disclosure can be limited strictly to those portions of a particular witness' testimony that bear upon some aspect of his direct testimony at trial.
13
The transcripts sought by respondents already had been given to the target companies in the grand jury investigation. Thus, release to respondents will not enhance the possibility of retaliatory action by employers in this case. But the other factors supporting the presumption of secrecy remain and must be considered.
14
As petitioners point out, the Court of Appeals did say that, because of the circumstances, "the party seeking disclosure should not be required to demonstrate a large compelling need," and that a "minimal showing of particularized need" would suffice. Petrol Stops Northwest v. United States, 571 F.2d 1127, 1130 (1978). In a different context, these statements could be read as an unjustified lowering of the standard of proof required by Procter & Gamble and Dennis. We cannot say, however, that the Court of Appeals applied an incorrect standard in view of the circumstances of this case and the discussion thereof in the opinion below.
15
The District Court indicated that respondents had made out a "prima facie" showing that the requested materials were relevant to Arizona civil proceedings "because of the nature of the grand jury inquiry with relation to the proceedings here concerned." App. 58. The Court of Appeals found that respondents had shown "a particularized need beyond the mere relevance of the materials [requested]." 571 F.2d, at 1130.
16
In each of the three cases in which this Court has considered the applicable standard for disclosure of grand jury transcripts, the court in which the grand jury was empaneled also was the location of the litigation giving rise to the request for disclosure. See, e. g., Juris. Statement in United States v. Procter & Gamble Co., O.T.1957, No. 51, p. 3. Indeed, in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), and in Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959), the parties requested transcripts for use in the criminal case to which the grand jury proceedings had been a prologue.
17
As we have noted, by virtue of a prior order petitioners have possession of the transcripts sought by respondents. See supra, at 216. We were informed at argument by counsel for the Government that under the terms of that order, the transcripts were to be returned upon completion of the criminal proceeding in the Central District of California and were to be used only for purposes of defending against the criminal charges in that case. See Tr. of Oral Arg., 35-36. It appears, therefore, that if the District Court in Arizona had the authority to order disclosure by the petitioners, this power was derived from petitioners' unlawful retention of the transcripts. Indeed, as the Government suggests, it is questionable whether the Arizona District Court properly could have ordered production of the documents in direct violation of the California District Court order.
18
Indeed, the court indicated that it was equally ignorant of the circumstances surrounding the grand jury proceedings. See App. 53. Thus, it appears that this particular judge had no knowledge whatsoever of the facts underlying either the criminal or civil proceedings, and so was in no position to consider the relationship between the two.
Contrary to the statements in the dissenting opinion, post, at 235 n. 3, and n. 8, we do not "admonish [the] trial judge" by concluding that there was an abuse of discretion. We recognize that the proper procedure in a case of this kind had not been established in the Ninth Circuit or by this Court at the time of the trial court's ruling. Thus, the trial court—whose lot it was to act on respondents' request—had neither authoritative guidance as to the proper procedure to be followed nor familiarity with the civil or criminal proceedings. One purpose of our decision today is to afford such guidance in cases of this kind.
19
Apparently recognizing his difficult position, the District Judge in the present case at one point offered, "through an overabundance of precaution . . . to telephone [the judges presiding over the Arizona proceedings] to see if they have any objection" to the release to respondents of the grand jury transcripts. Contrary to the suggestion in the dissenting opinion, see post, at 235 n. 3, this offer was no suitable substitute for referring the matter to the Arizona District Court: An oral request made over the telephone to a busy District Judge cannot be considered with the same care and understanding that formal motions properly receive. Under the suggested informal procedure the Arizona District Court would have been required to evaluate the need for disclosure without having either access to the grand jury materials or first hand knowledge of what they contained.
The dissenting opinion argues that petitioners' failure to demand reference to the Arizona court justified the District Court's granting respondents' discovery request regardless of its implications. See ibid. With respect to grand jury secrecy, a matter of great sensitivity impinging upon the public interest, courts cannot be free to act merely because the parties have failed to specify precisely the relief to which they are entitled. Such carte blanche is particularly inappropriate in the present case, where petitioners argued before the District Court that it lacked the expertise required to make a fair determination of the need for disclosure. The issue upon which we rule today, therefore, was presented to the District Court by petitioners.
20
Because the District Court for the Central District of California did not have the knowledge necessary to make an evaluation of the relative needs for secrecy and disclosure, we express no view whether on these facts a court with such knowledge properly could have ordered release of the requested transcripts.
*
Only one defendant moved for discovery of the minutes under Fed.Rule Crim.Proc. 6(e). 356 U.S., at 678 n. 1, 78 S.Ct., at 984 n. 1. The Court's discussion of the merits of the defendants' claims was based on Fed.Rule Civ.Proc. 34. 356 U.S., at 681, 78 S.Ct., at 985.
1
The Court of Appeals affirmed the determination of the District Judge on the basis of the record before him showing the similarities between the indictment to which petitioners had pleaded no contest and the complaint in the treble-damages case. But the Court of Appeals went even further. On the basis of additional submissions by the parties on appeal, the Court of Appeals made a further finding of relevance premised on discrepancies between the bill of particulars filed by the Government in the criminal case and recent deposition testimony of petitioners' employees in the civil case. Petrol Stops Northwest v. United States, 571 F.2d 1127, 1130-1131. Accordingly, the decision of the Court second-guesses not only the District Judge's determination as affirmed by the Court of Appeals on its own terms, but also a second de novo determination by the Court of Appeals based on additional information.
2
Because the grand jury transcripts were in the possession of the United States, it was the nominal respondent in the action seeking disclosure of those transcripts. Although the Government did not oppose release of the transcripts, it did encourage the District Judge to allow petitioners to participate in the hearing as the "real parties in interest," and the court acceded to the Government's suggestion. App. 52, 90-100.
3
Petitioners consistently argued in the District Court that respondents' motion for production of the transcripts under Fed.Rule Crim.Proc. 6(e) should be denied outright and respondents forced to pursue the request in the Arizona courts by way of motions to compel discovery under Fed.Rule Crim.Proc. 37. In response to petitioners' argument that the two District Judges in Arizona were the only appropriate recipients of respondents' disclosure requests, the District Judge made the following statement:
"I would be very glad through an overabundance of precaution, if you think it would be appropriate, to telephone Judge Walsh and Judge Frey to see if they have any objection, but it doesn't seem to me that I should relegate these people to make their application to those judges when they have taken what I think is a proper step in coming here." App. 56.
Instead of responding that it would be "appropriate" for the judge to communicate with the judges in Arizona, counsel for petitioners once again reiterated the argument—implicitly rejected by the Court in today's decision—that the District Judge should simply have denied the Criminal Rule 6(e) request and relegated the entire matter to the Arizona judges for decision under Civil Rule 37. See ante, at 226. The fact that petitioners relied exclusively on this admittedly invalid objection to the production
request should bar them from making the new argument in this Court that the District Judge should have transferred the Rule 6(e) motion to the Arizona courts. Even if that argument is cognizable here, I find inexplicable the Court's determination that the District Judge abused his discretion because the accommodation he suggested sua sponte—orally communicating with the judges in Arizona about the Rule 6(e) motion and announcing their collective decision himself—is not the slightly different one that a majority of this Court would have chosen—formally transferring the Rule 6(e) motion to the Arizona judges and forcing them to announce the collective decisions. See ante, at 230-231.
4
See App. 52, 61.
5
See id., at 57-59, 118-167. See also 571 F.2d, at 1131.
6
The District Judge found as follows:
"As far as relevance, I would think that there is a prima facie relevance because of the nature of the grand jury inquiry with relation to the proceedings here concerned." App. 58.
7
According to their counsel, the "main thrust" of petitioners' argument before the District Judge was not that the transcripts are irrelevant to the treble-damages suit. Instead, petitioners' primary reliance was on the incorrect argument, see ante, at 226, that respondents should have presented their request to the Arizona judges in the first instance. App. 55-56. When they did reach the subject of relevance, petitioners' comments were tentative at best. See, e. g., id., at 57 (emphasis added):
"MR. THURSTON [counsel for Douglas Oil]: . . . It is possible that there were—not possible. It is the fact that those grand jury proceedings concerned a number of different levels of sale, both at the wholesale and retail levels, whereas the proceedings in Arizona may not involve such a broad territory."
8
In addition to accepting the District Judge's offer to consult with the Arizona judges on the subject of relevance, see n. 3, supra, petitioners could have requested that the District Judge view the transcripts in camera to test their relevance. See Dennis v. United States, 384 U.S. 855, 874, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973. In this discretionary area, it is particularly harsh to admonish a trial judge for failing to take steps that even the parties have not suggested should be taken.
9
Although the Court recognizes that it is customary for Rule 6(e) determinations to be left to the "considered discretion" of the lower courts, ante, at 228, citing Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323, it finds support in Dennis v. United States, supra, for its rather exacting review of the exercise of that discretion. But in Dennis, the District Court had withheld grand jury testimony from a criminal defendant and had thereby run afoul of the view "that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice." 384 U.S., at 870-871, 86 S.Ct., at 1849 (emphasis added), citing Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. See also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Because the permissible scope of discretion in this civil litigation is not qualified by any special policy analogous to the one favoring disclosure in Dennis, I find little support in that case for the result reached here.
| 01
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441 U.S. 153
99 S.Ct. 1635
60 L.Ed.2d 115
Anthony HERBERT, Petitioner,v.Barry LANDO et al.
No. 77-1105.
Argued Oct. 31, 1978.
Decided April 18, 1979.
Syllabus
Petitioner instituted a diversity action in Federal District Court against the respondents, a television network and two of its employees, and a magazine, alleging that a program aired by the network and an article published by the magazine defamed him. Petitioner conceded that because he was a "public figure" the First and Fourteenth Amendments precluded recovery absent proof that respondents had published damaging falsehoods with "actual malice"—that is, with knowledge that the statements were false or with reckless disregard of whether they were false or not. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and subsequent decisions of this Court. Preparing to prove his case in light of these requirements, petitioner deposed one of the network employees at length and sought an order to compel answers to a variety of questions to which response was refused on the ground that the First Amendment protected against inquiry into the state of mind of those who edit, produce, or publish, and into the editorial process. The District Court ruled that the questions were relevant and rejected the claim of constitutional privilege. A divided panel of the Court of Appeals reversed, two judges concluding that the First Amendment lent sufficient protection to the editorial processes to protect the network employee from inquiry about his thoughts, opinions, and conclusions with respect to the material gathered by him and about his conversations with his editorial colleagues. Held: When a member of the press is alleged to have circulated damaging falsehoods and is sued for injury to the plaintiff's reputation, there is no privilege under the First Amendment's guarantees of freedom of speech and freedom of the press barring the plaintiff from inquiring into the editorial processes of those responsible for the publication where the inquiry will produce evidence material to the proof of a critical element of the plaintiff's cause of action. Pp. 158-177.
(a) Contrary to the views of the Court of Appeals, according an absolute privilege to the editorial process of a media defendant in a libel case is not required, authorized, or presaged by this Court's prior cases, and would substantially enhance the burden of proving actual malice, contrary to the expectations of New York Times Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, and similar cases. New York Times and its progeny do not suggest any First Amendment restriction on the sources from which the plaintiff can obtain the necessary evidence to prove the critical elements of his cause of action, but, on the contrary, make it essential to proving liability that the plaintiff focus on the defendant's conduct and state of mind. It is also untenable to conclude from the prior cases that although proof of the necessary state of mind can be in the form of objective circumstances from which the ultimate fact can be inferred, plaintiffs may not inquire directly from the defendants whether they knew or suspected that their damaging publication was in error. Pp. 158-169.
(b) The case for modifying firmly established constitutional doctrine by placing beyond the plaintiff's reach a range of direct evidence relevant to proving knowing or reckless falsehood by the publisher of an alleged libel, elements that are critical to a plaintiff such as petitioner, is by no means clear and convincing. The suggested privilege for the editorial process would constitute a substantial interference with the ability of a defamation plaintiff to establish the ingredients of malice as required by New York Times, and furthermore the outer boundaries of the suggested editorial privilege are difficult to perceive. The important interests of petitioner and other defamation plaintiffs at stake in opposing the creation of the asserted privilege cannot be overridden on the ground that requiring disclosure of editorial conversations and of a reporter's conclusions about veracity of the material he has gathered will have an intolerable chilling effect on the editorial process and editorial decisionmaking. If the claimed inhibition flows from the fear of damages liability for publishing knowing or reckless falsehoods, those effects are precisely those that have been held to be consistent with the First Amendment. Pp. 169-175.
(c) Creating a constitutional privilege foreclosing direct inquiry into the editorial process would not cure the press' problem as to escalating costs and other burdens incident to defamation litigation. Only complete immunity from liability for defamation would effect this result, and this Court has regularly found this to be an untenable construction of the First Amendment. Furthermore, mushrooming litigation costs, much of it due to pretrial discovery, are not peculiar to the libel and slander area. Until and unless there are major changes in the present Federal Rules of Civil Procedure, reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse. Pp. 175-177.
568 F.2d 974, reversed.
Jonathan W. Lubell, New York City, for petitioner.
Floyd Abrams, New York City, for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
By virtue of the First and Fourteenth Amendments, neither the Federal nor a State Government may make any law "abridging the freedom of speech, or of the press . . . ." The question here is whether those Amendments should be construed to provide further protection for the press when sued for defamation than has hitherto been recognized. More specifically, we are urged to hold for the first time that when a member of the press is alleged to have circulated damaging falsehoods and is sued for injury to the plaintiff's reputation, the plaintiff is barred from inquiring into the editorial processes of those responsible for the publication, even though the inquiry would produce evidence material to the proof of a critical element of his cause of action.
2
* Petitioner, Anthony Herbert, is a retired Army officer who had extended wartime service in Vietnam and who received widespread media attention in 1969-1970 when he accused his superior officers of covering up reports of atrocities and other war crimes. Three years later, on February 4, 1973, respondent Columbia Broadcasting System, Inc. (CBS), broadcast a report on petitioner and his accusations. The program was produced and edited by respondent Barry Lando and was narrated by respondent Mike Wallace. Lando later published a related article in Atlantic Monthly magazine. Herbert then sued Lando, Wallace, CBS, and Atlantic Monthly for defamation in Federal District Court, basing jurisdiction on diversity of citizenship. In his complaint, Herbert alleged that the program and article falsely and maliciously portrayed him as a liar and a person who had made war-crimes charges to explain his relief from command, and he requested substantial damages for injury to his reputation and to the literary value of a book he had just published recounting his experiences.
3
Although his cause of action arose under New York State defamation law, Herbert conceded that because he was a "public figure" the First and Fourteenth Amendments precluded recovery absent proof that respondents had published a damaging falsehood "with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." This was the holding of New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964), with respect to alleged libels of public officials, and extended to "public figures" by Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).1 Under this rule, absent knowing falsehood, liability requires proof of reckless disregard for truth, that is, that the defendant "in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Such "subjective awareness of probable falsity," Gertz v. Robert Welch, Inc., 418 U.S. 323, 335 n. 6, 94 S.Ct. 2997, 3004, 41 L.Ed.2d 789 (1974), may be found if "there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." St. Amant v. Thompson, supra, 390 U.S., at 732, 88 S.Ct., at 1326.
4
In preparing to prove his case in light of these requirements, Herbert deposed Lando at length and sought an order to compel answers to a variety of questions to which response was refused on the ground that the First Amendment protected against inquiry into the state of mind of those who edit, produce, or publish, and into the editorial process.2 Applying the standard of Fed.Rule Civ.Proc. 26(b), which permits discovery of any matter "relevant to the subject matter involved in the pending action" if it would either be admissible in evidence or "appears reasonably calculated to lead to the discovery of admissible evidence," the District Court ruled that because the defendant's state of mind was of "central importance" to the issue of malice in the case, it was obvious that the questions were relevant and "entirely appropriate to Herbert's efforts to discover whether Lando had any reason to doubt the veracity of certain of his sources, or, equally significant, to prefer the veracity of one source over another." 73 F.R.D. 387, 395, 396 (S.D.N.Y.1977). The District Court rejected the claim of constitutional privilege because it found nothing in the First Amendment or the relevant cases to permit or require it to increase the weight of the injured plaintiff's already heavy burden of proof by in effect creating barriers "behind which malicious publication may go undetected and unpunished." Id., at 394. The case was then certified for an interlocutory appeal under 28 U.S.C. § 1292(b), and the Court of Appeals agreed to hear the case.3
5
A divided panel reversed the District Court. 568 F.2d 974 (CA2 1977). Two judges, writing separate but overlapping opinions, concluded that the First Amendment lent sufficient protection to the editorial processes to protect Lando from inquiry about his thoughts, opinions, and conclusions with respect to the material gathered by him and about his conversations with his editorial colleagues. The privilege not to answer was held to be absolute. We granted certiorari because of the importance of the issue involved. 435 U.S. 922, 98 S.Ct. 1483, 55 L.Ed.2d 515 (1978). We have concluded that the Court of Appeals misconstrued the First and Fourteenth Amendments and accordingly reverse its judgment.
II
6
Civil and criminal liability for defamation was well established in the common law when the First Amendment was adopted, and there is no indication that the Framers intended to abolish such liability. Until New York Times, the prevailing jurisprudence was that "[l]ibelous utterances [are not] within the area of constitutionally protected speech . . . ." Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919 (1952); see also Roth v. United States, 354 U.S. 476, 482-483, 77 S.Ct. 1304, 1307-1308, 1 L.Ed.2d 1498 (1957); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707-708, 51 S.Ct. 625, 628, 75 L.Ed. 1357 (1931). The accepted view was that neither civil nor liability for defamatory publications abridges freedom of speech or freedom of the press, and a majority of jurisdictions made publishers liable civilly for their defamatory publications regardless of their intent.4 New York Times and Butts effected major changes in the standards applicable to civil libel actions. Under these cases public officials and public figures who sue for defamation must prove knowing or reckless falsehood in order to establish liability. Later, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Court held that nonpublic figures must demonstrate some fault on the defendant's part and, at least where knowing or reckless untruth is not shown, some proof of actual injury to the plaintiff before liability may be imposed and damages awarded.
7
These cases rested primarily on the conviction that the common law of libel gave insufficient protection to the First Amendment guarantees of freedom of speech and freedom of press and that to avoid self-censorship it was essential that liability for damages be conditioned on the specified showing of culpable conduct by those who publish damaging falsehood. Given the required proof, however, damages liability for defamation abridges neither freedom of speech nor freedom of the press.
8
Nor did these cases suggest any First Amendment restriction on the sources from which the plaintiff could obtain the necessary evidence to prove the critical elements of his cause of action. On the contrary, New York Times and its progeny made it essential to proving liability that the plaintiff focus on the conduct and state of mind of the defendant. To be liable, the alleged defamer of public officials or of public figures must know or have reason to suspect that his publication is false. In other cases proof of some kind of fault, negligence perhaps,5 is essential to recovery. Inevitably, unless liability is to be completely foreclosed, the thoughts and editorial processes of the alleged defamer would be open to examination.
9
It is also untenable to conclude from our cases that, although proof of the necessary state of mind could be in the form of objective circumstances from which the ultimate fact could be inferred, plaintiffs may not inquire directly from the defendants whether they knew or had reason to suspect that their damaging publication was in error. In Butts, for example, it is evident from the record that the editorial process had been subjected to close examination and that direct as well as indirect evidence was relied on to prove that the defendant magazine had acted with actual malice. The damages verdict was sustained without any suggestion that plaintiff's proof had trenched upon forbidden areas.6
10
Reliance upon such state-of-mind evidence is by no means a recent development arising from New York Times and similar cases. Rather, it is deeply rooted in the common-law rule, predating the First Amendment, that a showing of malice on the part of the defendant permitted plaintiffs to recover punitive or enhanced damages.7 In Butts, the Court affirmed the substantial award of punitive damages which in Georgia were conditioned upon a showing of "wanton or reckless indifference or culpable negligence" or " 'ill will, spite, hatred and an intent to injure . . . .' " 388 U.S., at 165-166, 87 S.Ct., at 1997. Neither Mr. Justice Harlan, id., at 156-162, 87 S.Ct., at 1997,8 nor Mr. Chief Justice Warren, concurring,id., at 165-168, 87 S.Ct., at 1996-1998, raised any question as to the propriety of having the award turn on such a showing or as to the propriety of the underlying evidence, which plainly included direct evidence going to the state of mind of the publisher and its responsible agents.9
11
Furthermore, long before New York Times was decided, certain qualified privileges had developed to protect a publisher from liability for libel unless the publication was made with malice.10 Malice was defined in numerous ways, but in general depended upon a showing that the defendant acted with improper motive.11 This showing in turn hinged upon the intent or purpose with which the publication was made, the belief of the defendant in the truth of his statement, or upon the ill will which the defendant might have borne toward the plaintiff.12
12
Courts have traditionally admitted any direct or indirect evidence relevant to the state of mind of the defendant and necessary to defeat a conditional privilege or enhance damages.13 The rules are applicable to the press and to other defendants alike,14 and it is evident that the courts across the country have long been accepting evidence going to the editorial processes of the media without encountering constitutional objections.15
13
In the face of this history, old and new, the Court of Appeals nevertheless declared that two of this Court's cases had announced unequivocal protection for the editorial process. In each of these cases, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), and Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), we invalidated governmental efforts to pre-empt editorial decision by requiring the publication of specified material. In Columbia Broadcasting System, it was the requirement that a television network air paid political advertisements and inTornillo, a newspaper's obligation to print a political candidate's reply to press criticism. Insofar as the laws at issue in Tornillo and Columbia Broadcasting System sought to control in advance the content of the publication, they were deemed as invalid as were prior efforts to enjoin publication of specified materials.16 But holdings that neither a State nor the Federal Government may dictate what must or must not be printed neither expressly nor impliedly suggest that the editorial process is immune from any inquiry whatsoever.
14
It is incredible to believe that the Court in Columbia Broadcasting System or in Tornillo silently effected a substantial contraction of the rights preserved to defamation plaintiffs in Sullivan, Butts, and like cases. Tornillo and Gertz v. Robert Welch, Inc., were announced on the same day; and although the Court's opinion in Gertz contained an overview of recent developments in the relationship between the First Amendment and the law of libel, there was no hint that a companion case had narrowed the evidence available to a defamation plaintiff. Quite the opposite inference is to be drawn from the Gertz opinion, since it, like prior First Amendment libel cases, recited without criticism the facts of record indicating that the state of mind of the editor had been placed at issue. Nor did the Gertz opinion, in requiring proof of some degree of fault on the part of the defendant editor and in forbidding punitive damages absent at least reckless disregard of truth or falsity, suggest that the First Amendment also foreclosed direct inquiry into these critical elements.17
15
In sum, contrary to the views of the Court of Appeals, according an absolute privilege to the editorial process of a media defendant in a libel case is not required, authorized, or presaged by our prior cases, and would substantially enhance the burden of proving actual malice, contrary to the expectations of New York Times, Butts, and similar cases.
III
16
It is nevertheless urged by respondents that the balance struck in New York Times should now be modified to provide further protections for the press when sued for circulating erroneous information damaging to individual reputation. It is not uncommon or improper, of course, to suggest the abandonment, modification, or refinement of existing constitutional interpretation, and notable developments in First Amendment jurisprudence have evolved from just such submissions. But in the 15 years since New York Times, the doctrine announced by that case, which represented a major development and which was widely perceived as essentially protective of press freedoms, has been repeatedly affirmed as the appropriate First Amendment standard applicable in libel actions brought by public officials and public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976). At the same time, however, the Court has reiterated its conviction—reflected in the laws of defamation of all of the States—that the individual's interest in his reputation is also a basic concern. Id., at 455-457, 96 S.Ct., at 966; Gertz v. Robert Welch, Inc., supra, at 348-349, 94 S.Ct., at 3011.
17
We are thus being asked to modify firmly established constitutional doctrine by placing beyond the plaintiff's reach a range of direct evidence relevant to proving knowing or reckless falsehood by the publisher of an alleged libel, elements that are critical to plaintiffs such as Herbert. The case for making this modification is by no means clear and convincing, and we decline to accept it.
18
In the first place, it is plain enough that the suggested privilege for the editorial process would constitute a substantial interference with the ability of a defamation plaintiff to establish the ingredients of malice as required by New York Times. As respondents would have it, the defendant's reckless disregard of the truth, a critical element, could not be shown by direct evidence through inquiry into the thoughts, opinions, and conclusions of the publisher, but could be proved only by objective evidence from which the ultimate fact could be inferred. It may be that plaintiffs will rarely be successful in proving awareness of falsehood from the mouth of the defendant himself, but the relevance of answers to such inquiries, which the District Court recognized and the Court of Appeals did not deny, can hardly be doubted. To erect an impenetrable barrier to the plaintiff's use of such evidence on his side of the case is a matter of some substance, particularly when defendants themselves are prone to assert their good-faith belief in the truth of their publications,18 and libel plaintiffs are required to prove knowing or reckless falsehood with "convincing clarity." New York Times Co. v. Sullivan, 376 U.S., at 285-286, 84 S.Ct., at 729.
19
Furthermore, the outer boundaries of the editorial privilege now urged are difficult to perceive. The opinions below did not state, and respondents do not explain, precisely when the editorial process begins and when it ends. Moreover, although we are told that respondent Lando was willing to testify as to what he "knew" and what he had "learned" from his interviews, as opposed to what he "believed," it is not at all clear why the suggested editorial privilege would not cover knowledge as well as belief about the veracity of published reports.19 It is worth noting here that the privilege as asserted by respondents would also immunize from inquiry the internal communications occurring during the editorial process and thus place beyond reach what the defendant participants learned or knew as the result of such collegiate conversations or exchanges. If damaging admissions to colleagues are to be barred from evidence, would a reporter's admissions made to third parties not participating in the editorial process also be immune from inquiry? We thus have little doubt that Herbert and other defamation plaintiffs have important interests at stake in opposing the creation of the asserted privilege.
20
Nevertheless, we are urged by respondents to override these important interests because requiring disclosure of editorial conversations and of a reporter's conclusions about the veracity of the material he has gathered will have an intolerable chilling effect on the editorial process and editorial decisionmaking. But if the claimed inhibition flows from the fear of damages liability for publishing knowing or reckless falsehoods, those effects are precisely what New York Times and other cases have held to be consistent with the First Amendment. Spreading false information in and of itself carries no First Amendment credentials. "[T]here is no constitutional value in false statements of fact." Gertz v. Robert Welch, Inc., supra, 418 U.S., at 340, 94 S.Ct., at 3007.
21
Realistically, however, some error is inevitable; and the difficulties of separating fact from fiction convinced the Court in New York Times, Butts, Gertz, and similar cases to limit liability to instances where some degree of culpability is present in order to eliminate the risk of undue self-censorship and the suppression of truthful material. Those who publish defamatory falsehoods with the requisite culpability, however, are subject to liability, the aim being not only to compensate for injury but also to deter publication of unprotected material threatening injury to individual reputation. Permitting plaintiffs such as Herbert to prove their cases by direct as well as indirect evidence is consistent with the balance struck by our prior decisions. If such proof results in liability for damages which in turn discourages the publication of erroneous information known to be false or probably false, this is no more than what our cases contemplate and does not abridge either freedom of speech or of the press.
22
Of course, if inquiry into editorial conclusions threatens the suppression not only of information known or strongly suspected to be unreliable but also of truthful information, the issue would be quite different. But as we have said, our cases necessarily contemplate examination of the editorial process to prove the necessary awareness of probable falsehood, and if indirect proof of this element does not stifle truthful publication and is consistent with the First Amendment, as respondents seem to concede, we do not understand how direct inquiry with respect to the ultimate issue would be substantially more suspect.20 Perhaps such examination will lead to liability that would not have been found without it, but this does not suggest that the determinations in these instances will be inaccurate and will lead to the suppression of protected information. On the contrary, direct inquiry from the actors, which affords the opportunity to refute inferences that might otherwise be drawn from circumstantial evidence, suggests that more accurate results will be obtained by placing all, rather than part, of the evidence before the decisionmaker. Suppose, for example, that a reporter has two contradictory reports about the plaintiff, one of which is false and damaging, and only the false one is published. In resolving the issue whether the publication was known or suspected to be false, it is only common sense to believe that inquiry from the author, with an opportunity to explain, will contribute to accuracy. If the publication is false but there is an exonerating explanation, the defendant will surely testify to this effect.21 Why should not the plaintiff be permitted to inquire before trial? On the other hand, if the publisher in fact had serious doubts about accuracy, but published nevertheless, no undue self-censorship will result from permitting the relevant inquiry. Only knowing or reckless error will be discouraged; and unless there is to be an absolute First Amendment privilege to inflict injury by knowing or reckless conduct, which respondents do not suggest, constitutional values will not be threatened.
23
It is also urged that frank discussion among reporters and editors will be dampened and sound editorial judgment endangered if such exchanges, oral or written, are subject to inquiry by defamation plaintiffs.22 We do not doubt the direct relationship between consultation and discussion on the one hand and sound decisions on the other; but whether or not there is liability for the injury, the press has an obvious interest in avoiding the infliction of harm by the publication of false information, and it is not unreasonable to expect the media to invoke whatever procedures may be practicable and useful to that end. Moreover, given exposure to liability when there is knowing or reckless error, there is even more reason to resort to prepublication precautions, such as a frank interchange of fact and opinion. Accordingly, we find it difficult to believe that error-avoiding procedures will be terminated or stifled simply because there is liability for culpable error and because the editorial process will itself be examined in the tiny percentage of instances in which error is claimed and litigation ensues. Nor is there sound reason to believe that editorial exchanges and the editorial process are so subject to distortion and to such recurring misunderstanding that they should be immune from examination in order to avoid erroneous judgments in defamation suits. The evidentiary burden Herbert must carry to prove at least reckless disregard for the truth is substantial indeed, and we are unconvinced that his chances of winning an undeserved verdict are such that an inquiry into what Lando learned or said during the editorial process must be foreclosed.
24
This is not to say that the editorial discussions or exchanges have no constitutional protection from casual inquiry. There is no law that subjects the editorial process to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest; and if there were, it would not survive constitutional scrutiny as the First Amendment is presently construed. No such problem exists here, however, where there is a specific claim of injury arising from a publication that is alleged to have been knowingly or recklessly false.23
25
Evidentiary privileges in litigation are not favored,24 and even those rooted in the Constitution must give way in proper circumstances. The President, for example, does not have an absolute privilege against disclosure of materials subpoenaed for a judicial proceeding. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). In so holding, we found that although the President has a powerful interest in confidentiality of communications between himself and his advisers, that interest must yield to a demonstrated specific need for evidence. As we stated, in referring to existing limited privileges against disclosure, "[w]hatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." Id., at 710, 94 S.Ct., at 3108.
26
With these considerations in mind, we conclude that the present construction of the First Amendment should not be modified by creating the evidentiary privilege which the respondents now urge.
IV
27
Although defamation litigation, including suits against the press, is an ancient phenomenon, it is true that our cases from New York Times to Gertz have considerably changed the profile of such cases. In years gone by, plaintiffs made out a prima facie case by proving the damaging publication. Truth and privilege were defenses. Intent, motive, and malice were not necessarily involved except to counter qualified privilege or to prove exemplary damages. The plaintiff's burden is now considerably expanded. In every or almost every case, the plaintiff must focus on the editorial process and prove a false publication attended by some degree of culpability on the part of the publisher. If plaintiffs in consequence now resort to more discovery, it would not be surprising; and it would follow that the costs and other burdens of this kind of litigation would escalate and become much more troublesome for both plaintiffs and defendants. It is suggested that the press needs constitutional protection from these burdens if it is to perform its task,25 which is indispensable in a system such as ours.
28
Creating a constitutional privilege foreclosing direct inquiry into the editorial process, however, would not cure this problem for the press. Only complete immunity from liability for defamation would effect this result, and the Court has regularly found this to be an untenable construction of the First Amendment. Furthermore, mushrooming litigation costs, much of it due to pretrial discovery, are not peculiar to the libel and slander area. There have been repeated expressions of concern about undue and uncontrolled discovery, and voices from this Court have joined the chorus.26 But until and unless there are major changes in the present Rules of Civil Procedure, reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse.
29
The Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials. Schlagenhauf v. Holder, 379 U.S. 104, 114-115, 85 S.Ct. 234, 241, 13 L.Ed.2d 152 (1964); Hickman v. Taylor, 329 U.S. 495, 501, 507, 67 S.Ct. 385, 388, 391, 91 L.Ed. 451 (1947). But the discovery provisions, like all of the Federal Rules of Civil Procedure, are subject to the injunction of Rule 1 that they "be construed to secure the just, speedy, and inexpensive determination of every action." (Emphasis added.) To this end, the requirement of Rule 26(b)(1) that the material sought in discovery be "relevant" should be firmly applied, and the district courts should not neglect their power to restrict discovery where "justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ." Rule 26(c). With this authority at hand, judges should not hesitate to exercise appropriate control over the discovery process.
30
Whether, as a nonconstitutional matter, however, the trial judge properly applied the rules of discovery was not within the boundaries of the question certified under 28 U.S.C. § 1292(b) and accordingly is not before us.27 The judgment of the Court of Appeals is reversed.
31
So ordered.
32
Mr. Justice POWELL, concurring.
33
I join the opinion of the Court, and write separately to elaborate on what is said in Part IV. I do not see my observations as being inconsistent with the Court's opinion; rather, I write to emphasize the additional point that, in supervising discovery in a libel suit by a public figure, a district court has a duty to consider First Amendment interests as well as the private interests of the plaintiff.
34
I agree with the Court that the explicit constitutional protection of First Amendment rights in a case of this kind, as articulated by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), should not be expanded to create an evidentiary privilege. With respect to pretrial discovery in a civil proceeding, whatever protection the "exercise of editorial judgment" enjoys depends entirely on the protection the First Amendment accords the product of this judgment, namely, published speech.1 As the Court makes clear, the privilege respondents claim is unnecessary to safeguard published speech. This holding requires a reversal of the judgment of the Court of Appeals. The Court notes, however, that whether "the trial judge properly applied the rules of discovery," as a nonconstitutional matter, is not before us under the question certified pursuant to 28 U.S.C. § 1292(b), ante, at 177. I assume, therefore, that the litigation will continue and the District Court will review the interrogatories and questions which respondents declined to answer.
35
Earlier this Term, in dissenting from the denial of certiorari in ACF Industries, Inc. v. EEOC, 439 U.S. 1081, 99 S.Ct. 865, 59 L.Ed.2d 52 (1979), I had occasion to comment upon the widespread abuse of discovery that has become a prime cause of delay and expense in civil litigation. Id., at 1086-1088, 99 S.Ct., at 868-869. At the 1946 Term, just a few years after adoption of the Federal Rules of Civil Procedure, this Court stated "that the deposition-discovery rules are to be accorded a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947). The bar and trial courts understandably responded affirmatively. As the years have passed, discovery techniques and tactics have become a highly developed litigation art—one not infrequently exploited to the disadvantage of justice. As the Court now recognizes, the situation has reached the point where there is serious "concern about undue and uncontrolled discovery." Ante, at 176.2 In view of the evident attention given discovery by the District Judge in this case, it cannot be said that the process here was "uncontrolled." But it certainly was protracted and undoubtedly was expensive for all concerned.3
36
Under present Rules the initial inquiry in enforcement of any discovery request is one of relevance. Whatever standard may be appropriate in other types of cases, when a discovery demand arguably impinges on First Amendment rights a district court should measure the degree of relevance required in light of both the private needs of the parties and the public concerns implicated. On the one hand, as this Court has repeatedly recognized, the solicitude for First Amendment rights evidenced in our opinions reflects concern for the important public interest in a free flow of news and commentary. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 781-783, 98 S.Ct. 1407, 1418-1419, 55 L.Ed.2d 707 (1978); 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). On the other hand, there also is a significant public interest in according to civil litigants discovery of such matters as may be genuinely relevant to their lawsuit. Although the process of weighing these interests is hardly an exact science, it is a function customarily carried out by judges in this and other areas of the law. In performing this task, trial judges—despite the heavy burdens most of them carry—are now increasingly recognizing the "pressing need for judicial supervision." AFC Industries, Inc. v. EEOC, supra, 441 U.S., at 1087, 99 S.Ct., at 869.4
37
The Court today emphasizes that the focus must be on relevance, that the injunction of Fed.Rule Civ.Proc. 1 must be heeded, and that "district courts should not neglect their power to restrict discovery" in the interest of justice or to protect the parties from undue burden or expense. Ante, at 177; see Fed.Rule Civ.Proc. 26(c). I join the Court's opinion on my understanding that in heeding these admonitions, the District Court must ensure that the values protected by the First Amendment, though entitled to no constitutional privilege in a case of this kind, are weighed carefully in striking a proper balance.
38
Mr. Justice BRENNAN, dissenting in part.
39
Respondents are representatives of the news media. They are defendants in a libel action brought by petitioner, Lieutenant Colonel Anthony Herbert (U. S. Army, Ret.), who is concededly a public figure. The Court today rejects respondents' claim that an "editorial privilege" shields from discovery information that would reveal respondents' editorial processes. I agree with the Court that no such privilege insulates factual matters that may be sought during discovery, and that such a privilege should not shield respondents' "mental processes." 568 F.2d 974, 995 (CA2 1977) (Oakes, J.). I would hold, however, that the First Amendment requires predecisional communication among editors to be protected by an editorial privilege, but that this privilege must yield if a public-figure plaintiff is able to demonstrate to the prima facie satisfaction of a trial judge that the publication in question constitutes defamatory falsehood.
40
* The Court of Appeals below stated that "the issue presented by this case is whether, and to what extent, inquiry into the editorial process, conducted during discovery in a New York Times v. Sullivan type libel action, impermissibly burdens the work of reporters and broadcasters." Id., at 979 (Kaufman, C. J.). The court grouped the discovery inquiries objected to by respondents into five categories:
41
"1. Lando's conclusions during his research and investigations regarding people or leads to be pursued, or not to be pursued, in connection with the '60 Minutes' segment and the Atlantic Monthly article;
42
"2. Lando's conclusions about facts imparted by interviewees and his state of mind with respect to the veracity of persons interviewed;
43
"3. The basis for conclusions where Lando testified that he did reach a conclusion concerning the veracity of persons, information or events;
44
"4. Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication; and "5. Lando's intentions as manifested by his decision to include or exclude certain material." Id., at 983.
The Court of Appeals concluded:
45
"If we were to allow selective disclosure of how a journalist formulated his judgments on what to print or not to print, we would be condoning judicial review of the editor's thought processes. Such an inquiry, which on its face would be virtually boundless, endangers a constitutionally protected realm, and unquestionably puts a freeze on the free interchange of ideas within the newsroom." Id., at 980.
46
The Court of Appeals held that all five categories of information sought by petitioner were shielded by an editorial privilege.
47
The holding of the Court of Appeals presents a novel and difficult question of law. Federal Rule Civ.Proc. 26(b)(1) provides: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . ." (Emphasis supplied.) The instant case is brought under diversity jurisdiction, 28 U.S.C. § 1332(a), and Fed.Rule Evid. 501 states that "in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness [or] person . . . shall be determined in accordance with State law." Although New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), placed constitutional limits on state libel claims, it did not itself create a federal cause of action for libel. The "rule of decision" in this case, therefore, is defined by state law. There is no contention, however, that applicable state law encompasses an editorial privilege. Thus if we were to create and apply such a privilege, it would have to be constitutionally grounded, as, for example, is executive privilege, see United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), or the privilege against self-incrimination. See McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924). The existence of such a privilege has never before been urged before this Court.
48
This case must be approached from the premise that pretrial discovery is normally to be "accorded a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), and that judicial creation of evidentiary privileges is generally to be discouraged. We have in the past, however, recognized evidentiary privileges in order to protect "interests and relationships which . . . are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice." E. Cleary, McCormick on Evidence 152 (2d ed. 1972). For example, Hickman v. Taylor, supra, created a qualified privilege for attorneys' work products in part because, without such a privilege, "[t]he effect on the legal profession would be demoralizing." 329 U.S., at 511, 67 S.Ct., at 394. Similarly, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 636 (1957), recognized a qualified "informer's privilege" for "the furtherance and protection of the public interest in effective law enforcement." Id., at 59, 77 S.Ct., at 627.
49
The inquiry to be pursued, therefore, is whether the creation of an editorial privilege would so further the purposes and goals of the constitutional scheme as embodied in the First Amendment, as to justify "some incidental sacrifice" of evidentiary material. This inquiry need not reach an inflexible result: The justifications for an editorial privilege may well support only a qualified privilege which, in appropriate instances, must yield to the requirements of "the administration of justice."
II
50
Mr. Justice Brandeis reminded us over a half century ago that "[t]hose who won OUR INDEPENDENCE . . . VALUED LIBERTY BOTH AS AN END AND AS A MEANS."1 Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (concurring opinion). In its instrumental aspect, the First Amendment serves to foster the values of democratic self-government. This is true in several senses. The First Amendment bars the state from imposing upon its citizens an authoritative vision of truth.2 It prohibits the state from interfering with the communicative processes through which its citizens exercise and prepare to exercise their rights of self-government.3 And the Amendment shields those who would censure the state or expose its abuses.4 These various senses can sometimes weave together, as can be seen in the letter of 1774 addressed by the First Continental Congress to the inhabitants of Quebec, listing the rights "a profligate [English] Ministry are now striving, by force of arms, to ravish from us":
51
"The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs."5
52
Although the various senses in which the First Amendment serves democratic values will in different contexts demand distinct emphasis and development, they share the common characteristic of being instrumental to the attainment of social ends. It is a great mistake to understand this aspect of the First Amendment solely through the filter of individual rights.6 This is the meaning of our cases permitting a litigant to challenge the constitutionality of a statute as overbroad under the First Amendment if the statute "prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct." NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963). Our reasoning is that First Amendment freedoms "are delicate and vulnerable, as well as supremely precious in our society," id., at 433, 83 S.Ct., at 338, and that a litigant should therefore be given standing to assert this more general social interest in the "vindication of freedom of expression." Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965). See Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940). It is also the meaning of the "actual malice" standard set forth in New York Times Co. v. Sullivan, 376 U.S., at 279-280, 84 S.Ct., at 726. Even though false information may have no intrinsic First Amendment worth, St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968), and even though a particular defendant may have published false information, his freedom of expression is nevertheless protected in the absence of actual malice because, "to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones." Ibid.7
53
In recognition of the social values served by the First Amendment, our decisions have referred to "the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences," Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1807, 23 L.Ed.2d 371 (1969) (emphasis supplied), and to "the circulation of information to which the public is entitled in virtue of the constitutional guaranties." Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936) (emphasis supplied). In Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), we stated that the guarantees of the First Amendment "are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society." Id., at 389, 87 S.Ct., at 543.
54
The editorial privilege claimed by respondents must be carefully analyzed to determine whether its creation would significantly further these social values recognized by our prior decisions. In this analysis it is relevant to note that respondents are representatives of the communications media, and that the "press and broadcast media," Gertz v. Robert Welch, Inc., 418 U.S. 323, 343, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974),8 have played a dominant and essential role in serving the "informative function," Branzburg v. Hayes, 408 U.S. 665, 705, 92 S.Ct. 2646, 2668, 33 L.Ed.2d 626 (1972), protected by the First Amendment. "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." First National Bank of Boston v. Bellotti, 435 U.S. 765, 781, 98 S.Ct. 1407, 1418, 55 L.Ed.2d 707 (1978).9 "The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern." Grosjean v. American Press Co., supra, 297 U.S., at 250, 56 S.Ct., at 449. An editorial privilege would thus not be merely personal to respondents, but would shield the press in its function "as an agent of the public at large. . . . The press is the necessary representative of the public's interest in this context and the instrumentality which effects the public's right." Saxbe v. Washington Post Co., 417 U.S. 843, 863-864, 94 S.Ct. 2811, 2822, 41 L.Ed.2d 514 (1974) (Powell, J., dissenting).
III
55
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), struck down as undue interference with the editorial process a Florida statute granting a political candidate a right to equal space to reply to criticisms of his record by a newspaper.
56
"Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time." Id., at 258, 94 S.Ct., at 2839-2840.
57
See Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 391, 93 S.Ct. 2553, 2561, 37 L.Ed.2d 669 (1973); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 120, 124-125, 93 S.Ct. 2080, 2097, 36 L.Ed.2d 772 (1973). Through the editorial process expression is composed; to regulate the process is therefore to regulate the expression. The autonomy of the speaker is thereby compromised, whether that speaker is a large urban newspaper or an individual pamphleteer. The print and broadcast media, however, because of their large organizational structure, cannot exist without some form of editorial process. The protection of the editorial process of these institutions thus becomes a matter of particular First Amendment concern.10
58
There is in this case, however, no direct government regulation of respondents' editorial process. But it is clear that disclosure of the editorial process of the press will increase the likelihood of large damages judgments in libel actions, and will thereby discourage participants in that editorial process.11 And, as New York Times stated: "What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute." 376 U.S., at 277, 84 S.Ct., at 724. Of course New York Times set forth a substantive standard defining that speech unprotected by the First Amendment, and respondents' editorial process cannot be shielded merely so as to block judicial determination of whether respondents have in fact engaged in such speech. As the Court states: "[I]f the claimed inhibition flows from the fear of damages liability for publishing knowing or reckless falsehoods, those effects are precisely what New York Times and other cases have held to be consistent with the First Amendment." Ante, at 171. Our inquiry, therefore, becomes the independent First Amendment values served by the editorial process and the extent to which exposure of that process would impair these First Amendment values.
59
In Tornillo we defined the editorial process in a functional manner, as that process whereby the content and format of published material is selected. The Court of Appeals below identified two aspects of this process. The first concerns "the mental processes of the press regarding 'choice of material' . . . ." 568 F.2d, at 995 (Oakes, J.). This aspect encompasses an editor's subjective "thought processes," his "thoughts, opinions and conclusions." Id., at 980, 984 (Kaufman, C. J.). The Court of Appeals concluded that if discovery were permitted concerning this aspect of the editorial process, journalists "would be chilled in the very process of thought." Id., at 984.
60
I find this conclusion implausible. Since a journalist cannot work without such internal thought processes, the only way this aspect of the editorial process can be chilled is by a journalist ceasing to work altogether. Given the exceedingly generous standards of New York Times, this seems unlikely. Moreover, New York Times removed First Amendment protection from defamatory falsehood published with actual malice—in knowing or reckless disregard of the truth.12 Subsequent decisions have made clear that actual malice turns on a journalist's "subjective awareness of probable falsity." Gertz v. Robert Welch, Inc., 418 U.S., at 335 n. 6, 94 S.Ct., at 3004 n. 6. It would be anomalous to turn substantive liability on a journalist's subjective attitude and at the same time to shield from disclosure the most direct evidence of that attitude. There will be, of course, journalists at the margin—those who have some awareness of the probable falsity of their work but not enough to constitute actual malice—who might be discouraged from publication. But this chill emanates chiefly from the substantive standard of New York Times, not from the absence of an editorial privilege.
61
The second aspect of the editorial privilege identified by the Court of Appeals involves "the free interchange of ideas within the newsroom," 568 F.2d, at 980 (Kaufman, C. J.), "the relationship among editors." Id., at 993 (Oakes, J.). Judge Oakes concluded that "[i]deas expressed in conversations, memoranda, handwritten notes and the like, if discoverable, would in the future 'likely' lead to a more muted, less vigorous and creative give-and-take in the editorial room." Id., at 993-994. Chief Judge Kaufman stated that "[a] reporter or editor, aware that his thoughts might have to be justified in a court of law, would often be discouraged and dissuaded from the creative verbal testing, probing, and discussion of hypotheses and alternatives which are the sine qua non of responsible journalism." Id., at 980.
62
An editorial privilege protecting this aspect of the editorial process would essentially be analogous to the executive privilege which shields the "advisory opinions, recommendations and deliberations . . . by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (DC 1966). As our cases interpreting Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5), make clear, this privilege would not protect merely "factual" material, but only "deliberative or policymaking processes." EPA v. Mink, 410 U.S. 73, 89, 93 S.Ct. 827, 837, 35 L.Ed.2d 119 (1973). The rationale for this privilege was succinctly stated in United States v. Nixon, 418 U.S., at 705, 94 S.Ct., at 3106: "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." The same rationale applies to respondents' proposed editorial privilege. Just as the possible political consequences of disclosure might undermine predecisional communication within the Executive Branch, see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975), so the possibility of future libel judgments might well dampen full and candid discussion among editors of proposed publications. Just as impaired communication "clearly" affects "the quality" of executive decisionmaking, ibid., so too muted discussion during the editorial process will affect the quality of resulting publications. Those editors who have doubts might remain silent; those who would prefer to follow other investigative leads might be restrained; those who would otherwise counsel caution might hold their tongues. In short, in the absence of such an editorial privilege the accuracy, thoroughness and profundity of consequent publications might well be diminished.
63
Such a diminution would affect First Amendment values. The Amendment embraces the public's interest in "accurate and effective reporting by the news media." Saxbe v. Washington Post Co., 417 U.S., at 863, 94 S.Ct., at 2821 (Powell, J., dissenting). "Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth. . . . Abridgment of freedom of speech and of the press . . . impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the processes of popular government."13 Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). Petitioner is concededly a public figure; "[o]ur citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of 'public officials.' " Curtis Publishing Co. v. Butts, 388 U.S. 130, 164, 87 S.Ct. 1975, 1996, 18 L.Ed.2d 1094 (1967) (Warren, C. J., concurring in result). To the extent coverage of such figures becomes fearful and inhibited, to the extent the accuracy, effectiveness, and thoroughness of such coverage is undermined, the social values protected by the First Amendment suffer abridgment.
64
I find compelling these justifications for the existence of an editorial privilege. The values at issue are sufficiently important to justify some incidental sacrifice of evidentiary material.14 The Court today concedes the accuracy of the underlying rationale for such a privilege, stating that "[w]e do not doubt the direct relationship between consultation and discussion on the one hand and sound decisions on the other . . . ." Ante, at 173. The Court, however, contents itself with the curious observation that "given exposure to liability when there is knowing or reckless error, there is even more reason to resort to prepublication precautions, such as a frank interchange of fact and opinion." Ante, at 174. Because such "prepublication precautions" will often prove to be extraordinarily damaging evidence in libel actions, I cannot so blithely assume such "precautions" will be instituted, or that such "frank interchange" as now exists is not impaired by its potential exposure in such actions.
65
I fully concede that my reasoning is essentially paradoxical. For the sake of more accurate information, an editorial privilege would shield from disclosure the possible inaccuracies of the press; in the name of a more responsible press, the privilege would make more difficult of application the legal restraints by which the press is bound. The same paradox, however, inheres in the concept of an executive privilege: so as to enable the government more effectively to implement the will of the people, the people are kept in ignorance of the workings of their government. The paradox is unfortunately intrinsic to our social condition. Judgment is required to evaluate and balance these competing perspectives.
66
Judgment is also required to accommodate the tension between society's "pervasive and strong interest in preventing and redressing attacks upon reputation," Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966), and the First Amendment values that would be served by an editorial privilege. In my view this tension is too fine to be resolved in the abstract. As is the case with executive privilege, there must be a more specific balancing of the particular interests asserted in a given lawsuit. A general claim of executive privilege, for example, will not stand against a "demonstrated, specific need for evidence . . . ." United States v. Nixon, 418 U.S., at 713, 94 S.Ct., at 3110. Conversely, a general statement of need will not prevail over a concrete demonstration of the necessity for executive secrecy. United States v. Reynolds, 345 U.S. 1, 11, 73 S.Ct. 528, 533, 97 L.Ed. 727 (1953). Other evidentiary privileges are similarly dependent upon the particular exigencies demonstrated in a specific lawsuit. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), for example, held that the existence of an informer's privilege depends "on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id., at 62, 77 S.Ct., at 629. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), similarly required ad hoc balancing to determine the existence of an attorneys' work-product privilege. The procedures whereby this balancing is achieved, so far from constituting mere "formalism," ante, at 175 n. 23, are in fact the means through which courts have traditionally resolved conflicts between competing social and individual interests.
67
In my judgment, the existence of a privilege protecting the editorial process must, in an analogous manner, be determined with reference to the circumstances of a particular case. In the area of libel, the balance struck by New York Times between the values of the First Amendment and society's interest in preventing and redressing attacks upon reputation must be preserved. This can best be accomplished if the privilege functions to shield the editorial process from general claims of damaged reputation. If, however, a public-figure plaintiff is able to establish, to the prima facie satisfaction of a trial judge, that the publication at issue constitutes defamatory falsehood,15 the claim of damaged reputation becomes specific and demonstrable, and the editorial privilege must yield.16 Contrary to the suggestion of the Court, an editorial privilege so understood would not create "a substantial interference with the ability of a defamation plaintiff to establish the ingredients of malice as required by New York Times." Ante, at 170. Requiring a public-figure plaintiff to make a prima facie showing of defamatory falsehood will not constitute an undue burden, since he must eventually demonstrate these elements as part of his case in chief.17 And since editorial privilege protects only deliberative and policymaking processes and not factual material, discovery should be adequate to acquire the relevant evidence of falsehood. A public-figure plaintiff will thus be able to redress attacks on his reputation, and at the same time the editorial process will be protected in all but the most necessary cases.
IV
68
Applying these principles to the instant case is most difficult, since the five categories of objectionable discovery inquiries formulated by the Court of Appeals are general, and it is impossible to determine what specific questions are encompassed within each category. It would nevertheless appear that four of the five categories concern respondents' mental processes, and thus would not be covered by an editorial privilege. Only the fourth category—"Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication" would seem to be protected by a proper editorial privilege. The Court of Appeals noted, however, that respondents had already made available to petitioner in discovery "the contents of pre-telecast conversations between Lando and Wallace . . . ." 568 F.2d, at 982 (Kaufman, C. J.). Whether this constitutes waiver of the editorial privilege should be determined in the first instance by the District Court. I would therefore, like the Court of Appeals, remand this case to the District Court, but would require the District Court to determine (a) whether respondents have waived their editorial privilege; (b) if not, whether petitioner Herbert can overcome the privilege through a prima facie showing of defamatory falsehood; and (c) if not, the proper scope and application of the privilege.
69
Mr. Justice STEWART, dissenting.
70
It seems to me that both the Court of Appeals and this Court have addressed a question that is not presented by the case before us. As I understand the constitutional rule of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, inquiry into the broad "editorial process" is simply not relevant in a libel suit brought by a public figure against a publisher. And if such an inquiry is not relevant, it is not permissible. Fed.Rule Civ.Proc. 26(b).
71
Although I joined the Court's opinion in New York Times, I have come greatly to regret the use in that opinion of the phrase "actual malice." For the fact of the matter is that "malice" as used in the New York Times opinion simply does not mean malice as that word is commonly understood. In common understanding, malice means ill will or hostility,1 and the most relevant question in determining whether a person's action was motivated by actual malice is to ask "why." As part of the constitutional standard enunciated in the New York Times case, however, "actual malice" has nothing to do with hostility or ill will, and the question "why" is totally irrelevant.
72
Under the constitutional restrictions imposed by New York Times and its progeny, a plaintiff who is a public official or public figure can recover from a publisher for a defamatory statement upon convincingly clear proof of the following elements:
73
(1) the statement was published by the defendant,
74
(2) the statement defamed the plaintiff,
75
(3) the defamation was untrue, and
76
(4) the defendant knew the defamatory statement was untrue, or published it in reckless disregard of its truth or falsity. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (plurality opinion); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57; Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45; Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35; Greenbelt Coop. Pub. Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6; St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262; Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248; Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094; Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597; New York Times Co. v. Sullivan, supra. Cf. Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154; Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789; Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745; Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456; Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582.
77
The gravamen of such a lawsuit thus concerns that which was in fact published. What was not published has nothing to do with the case. And liability ultimately depends upon the publisher's state of knowledge of the falsity of what he published, not at all upon his motivation in publishing it—not at all, in other words, upon actual malice as those words are ordinarily understood.
78
This is not the first time that judges and lawyers have been led astray by the phrase "actual malice" in the New York Times opinion. In Greenbelt Coop. Pub. Assn. v. Bresler, supra, another defamation suit brought by a public figure against a publisher, the trial judge instructed the jury that the plaintiff could recover if the defendant's publication had been made with malice, and that malice means "spite, hostility or deliberate intention to harm." In reversing the judgment for the plaintiff, we said that this jury instruction constituted "error of constitutional magnitude." 398 U.S., at 10, 90 S.Ct., at 1540. Cf. Letter Carriers v. Austin, supra, 418 U.S., at 281, 94 S.Ct., at 2780; Rosenblatt v. Baer, supra, 383 U.S., at 83-84, 86 S.Ct., at 675.
79
In the present case, of course, neither the Court of Appeals nor this Court has overtly committed the egregious error manifested in Bresler. Both courts have carefully enunciated the correct New York Times test. See 568 F.2d 974, 985 (opinion of Oakes, J.), and ante, at 156-157. But each has then followed a false trail, explainable only by an unstated misapprehension of the meaning of New York Times "actual malice," to arrive at the issue of "editorial process" privilege. This misapprehension is reflected by numerous phrases in the prevailing Court of Appeals opinions: "a journalist's exercise of editorial control and judgment," "how a journalist formulated his judgments," "the editorial selection process of the press," "the heart of the editorial process," "reasons for the inclusion or exclusion of certain material." See 568 F.2d 974, passim. Similar misapprehension is reflected in this Court's opinion by such phrases as "improper motive," "intent or purpose with which the publication was made," "ill will," and by lengthy footnote discussion about the spite or hostility required to constitute malice at common law. See ante, at 162 and 164.
80
Once our correct bearings are taken, however, and it is firmly recognized that a publisher's motivation in a case such as this is irrelevant, there is clearly no occasion for inquiry into the editorial process as conceptualized in this case. I shall not burden this opinion with a list of the 84 discovery questions at issue.2 Suffice it to say that few if any of them seem to me to come within even the most liberal construction of Fed.Rule Civ.Proc. 26(b).3
81
By the time this case went to the Court of Appeals, the deposition of the respondent Lando alone had lasted intermittently for over a year and had filled 2,903 pages of transcript, with an additional 240 exhibits. The plaintiff had, in Chief Judge Kaufman's words, "already discovered what Lando knew, saw, said and wrote during his investigation." 568 F.2d, at 984. That, it seems to me, was already more than sufficient.
82
In a system of federal procedure whose prime goal is "the just, speedy, and inexpensive determination of every action,4 time-consuming and expensive pretrial discovery is burdensome enough, even when within the arguable bounds of Rule 26(b). But totally irrelevant pretrial discovery is intolerable.
83
Like the Court of Appeals, I would remand this case to the District Court, but with directions to measure each of the proposed questions strictly against the constitutional criteria of New York Times and its progeny. Only then can it be determined whether invasion of the editorial process is truly threatened.
84
Mr. Justice MARSHALL, dissenting.
85
Although professing to maintain the accommodation of interests struck in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court today is unresponsive to the constitutional considerations underlying that opinion. Because I believe that some constraints on pretrial discovery are essential to ensure the "uninhibited [and] robust" debate on public issues which Sullivan contemplated, id., at 270, 84 S.Ct., at 720, I respectfully dissent.
86
* At issue in this case are competing interests of familiar dimension. States undeniably have an interest in affording individuals some measure of protection from unwarranted defamatory attacks. Libel actions serve that end, not only by assuring a forum in which reputations can be publicly vindicated and dignitary injuries compensated, but also by creating incentives for the press to exercise considered judgment before publishing material that compromises personal integrity. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341-342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974); Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966).
87
Against these objections must be balanced society's interest in promoting unfettered debate on matters of public importance. As this Court recognized in Sullivan, error is inevitable in such debate, and, if forced to guarantee the truth of all assertions, potential critics might suppress statements believed to be accurate "because of doubt whether [truthfulness] can be proved in court or fear of the expense of having to do so." 376 U.S., at 279, 84 S.Ct., at 725. Such self-censorship would be incompatible with the tenets on which the First Amendment and our democratic institutions are founded. Under a representative system of government, an informed electorate is a precondition of responsive decisionmaking. See Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945); Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936); A. Meiklejohn, Free Speech and its Relation to Self-Government 88-89 (1948). To secure public exposure to the widest possible range of information and insights, some margin of error must be tolerated. Thus, absent knowing falsity or reckless disregard for the truth, the press is shielded from liability for defamatory statements regarding public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); New York Times Co. v. Sullivan, supra.
88
Yet this standard of liability cannot of itself accomplish the ends for which it was conceived. Insulating the press from ultimate liability is unlikely to avert self-censorship so long as any plaintiff with a deep pocket and a facially sufficient complaint is afforded unconstrained discovery of the editorial process. If the substantive balance of interests struck in Sullivan is to remain viable, it must be reassessed in light of the procedural realities under which libel actions are conducted.
II
89
The potential for abuse of liberal discovery procedures is of particular concern in the defamation context. As members of the bench and bar have increasingly noted, rules designed to facilitate expeditious resolution of civil disputes have too often proved tools for harassment and delay.1 Capitalizing on this Court's broad mandate in Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 391, 91 L.Ed. 451 (1947), reaffirmed in Schlagenhauf v. Holder, 379 U.S. 104, 114-115, 85 S.Ct. 234, 240, 13 L.Ed.2d 152 (1964), that discovery rules be accorded a "broad and liberal" scope, litigants have on occasion transformed Fed.Rule Civ.Proc. 26 devices into tactics of attrition. The possibility of such abuse is enhanced in libel litigation, for many self-perceived victims of defamation are animated by something more than a rational calculus of their chances of recovery.2 Given the circumstances under which libel actions arise, plaintiffs' pretrial maneuvers may be fashioned more with an eye to deterrence or retaliation than to unearthing germane material.
90
Not only is the risk of in terrorem discovery particularly pronounced in the defamation context, but the societal consequences attending such abuse are of special magnitude. Rather than submit to the intrusiveness and expense of protracted discovery, even editors confident of their ability to prevail at trial or on a motion for summary judgment may find it prudent to " 'steer far wid[e] of the unlawful zone' thereby keeping protected discussion from public cognizance." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 53, 91 S.Ct. 1811, 1824, 29 L.Ed.2d 296 (1971) (plurality opinion; citation omitted). Faced with the prospect of escalating attorney's fees, diversion of time from journalistic endeavors, and exposure of potentially sensitive information, editors may well make publication judgments that reflect less the risk of liability than the expense of vindication.3
91
Although acknowledging a problem of discovery abuse, the Court suggests that the remedy lies elsewhere, in "major changes in the present Rules of Civil Procedure." Ante, at 177. And somewhat inconsistently, the Court asserts further that district judges already have "in fact and in law . . . ample powers . . . to prevent abuse." Ibid. I cannot agree. Where First Amendment rights are critically implicated, it is incumbent on this Court to safeguard their effective exercise. By leaving the directives of Hickman and Schlagenhauf unqualified with respect to libel litigation, the Court has abdicated that responsibility.4
92
In my judgment the same constitutional concerns that impelled us in Sullivan to confine the circumstances under which defamation liability could attach also mandate some constraints on roving discovery. I would hold that the broad discovery principles enunciated in Hickman and Schlagenhauf are inapposite in defamation cases. More specifically, I would require that district courts superintend pretrial disclosure in such litigation so as to protect the press from unnecessarily protracted or tangential inquiry. To that end, discovery requests should be measured against a strict standard of relevance. Further, because the threat of disclosure may intrude with special force on certain aspects of the editorial process, I believe some additional protection in the form of an evidentiary privilege is warranted.
III
93
The Court of Appeals extended a privilege subsuming essentially two kinds of discovery requests. The first included questions concerning the state of mind of an individual journalist, principally his conclusions and bases for conclusions as to the accuracy of information compiled during investigation. The second encompassed communications between journalists about matter to be included in the broadcast. 568 F.2d 974, 978 (CA2 1977). Reasoning that discovery of both forms of material would be intrusive, that the intrusion would be inhibiting, and that such inhibition would be inconsistent with the editorial autonomy recognized in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), and Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), the Court of Appeals concluded that a privilege from disclosure was essential. 568 F.2d, at 975.
94
With respect to state-of-mind inquiry, that syllogism cannot withstand analysis. For although discovery may well be intrusive, it is unclear how journalists faced with the possibility of such questions can be "chilled in the very process of thought." Id., at 984. Regardless of whether strictures are placed on discovery, reporters and editors must continue to think, and to form opinions and conclusions about the veracity of their sources and the accuracy of their information. At best, it can be argued only that failure to insulate the press from this form of disclosure will inhibit not the editing process but the final product—that the specter of questions concerning opinion and belief will induce journalists to refrain from publishing material thought to be accurate. But as my Brother BRENNAN notes, ante, at 192-193, this inhibition would emanate principally from Sullivan's substantive standard, not from the incremental effect of such discovery. So long as Sullivan makes state of mind dispositive, some inquiry as to the manner in which editorial decisions are made is inevitable. And it is simply implausible to suppose that asking a reporter why certain material was or was not included in a given publication will be more likely to stifle incisive journalism than compelling disclosure of other objective evidence regarding that decision.5
95
I do not mean to suggest, as did the District Court here, that Tornillo and Columbia Broadcasting have "nothing to do" with this case. 73 F.R.D. 387, 396 (SDNY 1977). To the contrary, the values of editorial autonomy given recognition in those decisions should inform district courts as they monitor the discovery phase of defamation cases. But assuming that a trial judge has discharged his obligation to prevent unduly protracted or inessential disclosure, see supra, at 206, I am unpersuaded that the impact of state-of-mind inquiry will of itself threaten journalistic endeavor beyond the threshold contemplated by Sullivan.
96
External evidence of editorial decisionmaking, however, stands on a different footing. For here the concern is not simply that the ultimate product may be inhibited, but that the process itself will be chilled. Journalists cannot stop forming tentative hypotheses, but they can cease articulating them openly. If prepublication dialogue is freely discoverable, editors and reporters may well prove reluctant to air their reservations or to explore other means of presenting information and comment. The threat of unchecked discovery may well stifle the collegial discussion essential to sound editorial dynamics. As we recognized in United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974). "[T]hose who expect public dissemination of their remarks may well temper candor with a concern for appearances . . . to the detriment of the decisionmaking process." (Footnote omitted.) Cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975). Society's interest in enhancing the accuracy of coverage of public events is ill-served by procedures tending to muffle expression of uncertainty. To preserve a climate of free interchange among journalists, the confidentiality of their conversation must be guaranteed.
97
It is not enough, I believe, to accord a discovery privilege that would yield before any plaintiff who can make a prima facie showing of falsity. See ante, at 197-198 (opinion of BRENNAN, J.). Unless a journalist knows with some certitude that his misgivings will enjoy protection, they may remain unexpressed. See 568 F.2d at 994 (OAKES, J., concurring). If full disclosure is available whenever a plaintiff can establish that the press erred in some particular, editorial communication would not be demonstrably less inhibited than under the Court's approach. And by hypothesis, it is precisely those instances in which the risk of error is significant that frank discussion is most valuable.
98
Accordingly, I would foreclose discovery in defamation cases as to the substance of editorial conversation.6 Shielding this limited category of evidence from disclosure would be unlikely to preclude recovery by plaintiffs with valid defamation claims. For there are a variety of other means to establish deliberate or reckless disregard for the truth, such as absence of verification, inherent implausibility, obvious reasons to doubt the veracity of accuracy of information, and concessions or inconsistent statements by the defendant. See St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968). To the extent that such a limited privilege might deny recovery in some marginal cases, it is, in my view, an acceptable price to pay for preserving a climate conducive to considered editorial judgment.
99
I would therefore direct the Court of Appeals to remand this case to the District Court for determination first, whether the questions concerning Lando's state of mind satisfy the criteria set forth in Part II of this opinion, and second, whether respondents waived the privilege defined in Part III for prepublication discussions.
1
Criminal libel prosecutions are subject to the same constitutional limitations. Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).
2
The Court of Appeals summarized the inquiries to which Lando objected as follows:
"1. Lando's conclusions during his research and investigations regarding people or leads to be pursued, or not to be pursued, in connection with the '60 Minutes' segment and the Atlantic Monthly article;
"2. Lando's conclusions about facts imparted by interviewees and his state of mind with respect to the veracity of persons interviewed;
"3. The basis for conclusions where Lando testified that he did reach a conclusion concerning the veracity of persons, information or events;
"4. Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication; and
"5. Lando's intentions as manifested by his decision to include or exclude certain material." 568 F.2d 974, 983 (CA2 1977).
3
Respondents' petition for leave to appeal from an interlocutory order, which was granted, stated the issue on appeal as follows:
"What effect should be given to the First Amendment protection of the press with respect to its exercise of editorial judgment in pre-trial discovery in a libel case governed by New York Times Co. v. Sullivan, 376 U.S. 254 [84 S.Ct. 710, 11 L.Ed.2d 686] (1964)?"
4
See, e. g., Restatement of Torts § 580 (1938); Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Corn.L.Q. 581, 583-584 (1964); Developments in the Law—Defamation, 69 Harv.L.Rev. 875, 902-910 (1956). In Peck v. Tribune Co., 214 U.S. 185, 189, 29 S.Ct. 554, 555, 53 L.Ed. 960 (1909), Mr. Justice Holmes summarized the prevailing view of strict liability in the course of reviewing a libel judgment rendered in a federal diversity of citizenship action:
"There was some suggestion that the defendant published the portrait by mistake, and without knowledge that it was the plaintiff's portrait or was not what it purported to be. But the fact, if it was one, was no excuse. If the publication was libellous the defendant took the risk. As was said of such matters by Lord Mansfield, 'Whatever a man publishes he publishes at his peril.' The King v. Woodfall, Lofft 776, 781. . . . The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable, if the statements are false or are true only of some one else."
5
The definition of fault was to be the responsibility of state laws. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789 (1974).
6
See 388 U.S., at 156-159, 87 S.Ct., at 1992-1993, where Mr. Justice Harlan, writing for a plurality of the Court, reviewed the record under the standard he preferred to apply to public figures, and upheld the verdict for the plaintiff. Mr. Chief Justice Warren independently reviewed the record under the "actual malice" standard of New York Times and also concluded in his concurring opinion
that the verdict should be upheld. Id., at 168-170, 87 S.Ct., at 1998-1999. The evidence relied on and summarized in both opinions included substantial amounts of testimony that would fall within the editorial-process privilege as defined by respondents. The record before the Court included depositions by the author of the defamatory article, an individual paid to assist the author in preparation, the sports editor of the Saturday Evening Post, and both its managing editor and editor in chief. These depositions revealed the Saturday Evening Post's motives in publishing the story (Record, O.T. 1966, No. 37, pp. 706-717), sources (id., at 364, 662-664, 719-720, 729), conversations among the editors and author concerning the research and development of the article (id., at 363-367, 721-737), decisions and reasons relating to who should be interviewed and what should be investigated (id., at 666-667, 699-700, 734-736, 772-774), conclusions as to the importance and veracity of sources and information presented in the article (id., at 720, 732-735, 737, 771-772, 776), and conclusions about the impact that publishing the article would have on the subject (id., at 714-716, 770). Mr. Justice BRENNAN, writing for himself and Mr. Justice WHITE, also thought the evidence of record sufficient to satisfy the New York Times malice standard. It is quite unlikely that the Court would have arrived at the result it did had it believed that inquiry into the editorial processes was constitutionally forbidden.
The Court engaged in similar analysis of the record in reversing the judgments entered in a companion case to Butts, Associated Press v. Walker, 388 U.S., at 158-159, 87 S.Ct., at 1993; id., at 165, 87 S.Ct., at 1996 (Warren, C. J., concurring); and in Time, Inc. v. Hill, 385 U.S. 374, 391-394, 87 S.Ct. 534, 543-545, 17 L.Ed.2d 456 (1967). In Hill, the record included the edited drafts of the allegedly libelous article and an examination and cross-examination of the author. During that examination, the writer explained in detail the preparation of the article, his thoughts, conclusions, and beliefs regarding the material, and a line-by-line analysis of the article with explanations of how and why additions and deletions were made to the various drafts. As in Butts, the editorial process was the focus of much of the evidence, and direct inquiry was made into the state of mind of the media defendants. Yet the Court raised no question as to the propriety of the proof.
7
A. Hanson, Libel and Related Torts ¶ 163 (1969); Developments in the Law—Defamation, supra n. 4, at 938; 50 Am.Jur.2d, Libel and Slander § 352 (1970); 53 C.J.S. Libel and Slander § 260 (1955).
The Restatement originally provided in a separate section for the award of punitive damages for malicious defamations. Restatement of Torts § 1068 (Tent. Draft 13, 1936):
"One who is liable for harm to another's reputation caused by the publication of a libel or slander is also liable for punitive damages if the defamatory matter was published with knowledge of its falsity or if it was published in reckless indifference to its truth or falsity or solely for the purpose of causing harm to the plaintiff's reputation or other legally protected interest."
The provision was later omitted with the explanation that recovery of punitive damages would be determined by the rules in the Restatement with respect to damages in general. Restatement of Torts § 1068 (Proposed Final Draft 3, 1937).
Gertz v. Robert Welch, Inc., supra, 418 U.S., at 350, 94 S.Ct., at 3012, limited the entitlement to punitive damages, but such damages are still awardable upon a showing of knowing or reckless falsehood.
8
As Mr. Justice Harlan noted, the jury had been instructed in considering punitive damages to assess " 'the reliability, the nature of the sources of the defendant's information, its acceptance or rejection of the sources, and its care in checking upon assertions.' " 388 U.S., at 156, 87 S.Ct., at 1992 (emphasis added). The Justice found nothing amiss either with the instruction or the result the jury reached under it. Mr. Justice BRENNAN, dissenting in the Butts case, id., at 172-174, 87 S.Ct., at 2000-2001, analyzed the instructions differently but raised no question as to the constitutionality of turning the award of either compensatory or punitive damages upon direct as well as circumstantial evidence going to the mental state of the defendant.
9
See n. 6, supra.
10
See Nalle v. Oyster, 230 U.S. 165, 179-180, 33 S.Ct. 1043, 1047, 57 L.Ed. 1439 (1913); White v. Nicholls, 3 How. 266, 286-292, 11 L.Ed. 591 (1845); T. Plucknett, A Concise History of the Common Law 502 (5th ed. 1956); Hallen, Character of Belief Necessary for the Conditional Privilege in Defamation, 25 Ill.L.Rev. 865 (1931). In White v. Nicholls, supra, at 290-291, the Court surveyed the common law and summarized the privilege as follows:
"We have thus taken a view of the authorities which treat of the doctrines of slander and libel, and have considered those authorities particularly with reference to the distinction they establish between ordinary instances of slander, written and unwritten, and those which have been styled privileged communications; the peculiar character of which is said to exempt them from inferences which the law has created with respect to those cases that do not partake of that character. Our examination, extended as it may seem to have been, has been called for by the importance of a subject most intimately connected with the rights and happiness of individuals, as it is with the quiet and good order of society. The investigation has conducted us to the following conclusions, which we propound as the law applicable thereto. 1. That every publication, either by writing, printing, or pictures, which charges upon or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, or odious, or ridiculous, is prima facie a libel, and implies malice in the author and publisher towards the person concerning whom such publication is made. Proof of malice, therefore, in the cases just described, can never be required of the party complaining beyond the proof of the publication itself: justification, excuse, or extenuation, if either can be shown, must proceed from the defendant. 2. That the description of cases recognised as privileged communications, must be understood as exceptions to this rule, and as being founded upon some apparently recognised obligation or motive, legal, moral, or social, which may fairly be presumed to have led to the publication, and therefore prima facie relieves it from that just implication from which the general rule of the law is deduced. The rule of evidence, as to such cases, is accordingly so far changed as to impose it on the plaintiff to remove those presumptions flowing from the seeming obligations and situations of the parties, and to require of him to bring home to the defendant the existence of malice as the true motive of his conduct. Beyond this extent no presumption can be permitted to operate, much less be made to sanctify the indulgence of malice, however wicked, however express, under the protection of legal forms. We conclude then that malice may be proved, though alleged to have existed in the proceedings before a court, or legislative body, or any other tribunal or authority, although such court, legislative body, or other tribunal, may have been the appropriate authority for redressing the grievance represented to it; and that proof of express malice in any written publication, petition, or proceeding, addressed to such tribunal, will render that publication, petition, or proceeding, libellous in its character, and actionable, and will subject the author and publisher thereof to all the consequences of libel."
11
Hallen, supra, at 866-867. In some jurisdictions a defendant forfeited his privilege if he published negligently or without probable cause to believe the statement was true. Id., at 867; see White v. Nicholls, supra, at 291.
12
See, e. g., 50 Am.Jur.2d, supra n. 7, § 455:
"The existence of actual malice may be shown in many ways. As a general rule, any competent evidence, either direct or circumstantial, can be resorted to, and all the relevant circumstances surrounding the transaction may be shown, provided they are not too remote, including threats, prior or subsequent defamations, subsequent statements of the defendant, circumstances indicating the existence of rivalry, ill will, or hostility between the parties, facts tending to show a reckless disregard of the plaintiff's rights, and, in an action against a newspaper, custom and usage with respect to the treatment of news items of the nature of the one under consideration. The plaintiff may show that the defendant had drawn a pistol at the time he uttered the words complained of; that defendant had tried to kiss and embrace plaintiff just prior to the defamatory publication; or that defendant had failed to make a proper investigation before publication of the statement in question. On cross-examination the defendant may be questioned as to his intent in making the publication." (Footnotes and citations omitted.)
13
E. g., W. Odgers, A Digest of the Law of Libel and Slander * 271-* 288 (1st Am. ed. Bigelow 1881); 50 Am.Jur.2d, supra n. 7, § 455; 53 C.J.S., supra n. 7, § 213.
14
Cf. Odgers, supra, at * 271; F. Holt, The Law of Libel 57 (1st Am. ed. 1818); Billet v. Times-Democrat Publishing Co., 107 La. 751, 32 So. 17 (1902).
15
In scores of libel cases, courts have addressed the general issue of the admissibility of evidence that would be excluded under the editorial-process privilege asserted here and have affirmed the relevance and admissibility of the evidence on behalf of libel plaintiffs. See, e. g., Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960) (editor may be cross-examined on meaning intended to be conveyed by passages in magazine article); Freeman v. Mills, 97 Cal.App.2d 161, 217 P.2d 687 (1950) (malice may be established by direct proof of the state of mind of a person, or by evidence from which its existence may be inferred); Scott v. Times-Mirror Co., 181 Cal. 345, 184 P. 672 (1919) (all relevant circumstances concerning publication admissible); Sandora v. Times Co., 113 Conn. 574, 155 A. 819 (1931) (all relevant evidence including direct evidence on state of mind or surrounding circumstances—city editor and reporter called to stand and questioned extensively as to motives, circumstances of publication, and general practices); Rice v. Simmons, 2 Del. 309, 31 Am.Dec. 766 (1838) (where question of malice in issue, declarations of publisher at the time of publication admissible as part of the res gestae ); Western Union Telegraph Co. v. Vickers, 71 Ga.App. 204, 30 S.E.2d 440 (1944) (all relevant evidence admissible, including direct evidence of state of mind and surrounding circumstances); Cook v. East Shore Newspapers, 327 Ill.App. 559, 64 N.E.2d 751 (1945) (all relevant evidence concerning circumstances of publications admissible, including testimony by reporters and employees of defendant); Berger v. Freeman Tribune Publishing Co., 132 Iowa 290, 109 N.W. 784
(1906) (all relevant evidence); Thompson v. Globe Newspaper Co., 279 Mass. 176, 181 N.E. 249 (1932) (only evidence on state of mind of those agents of defendant entrusted with determining what shall be published is admissible and material); Conroy v. Fall River Herald News Co., 306 Mass. 488, 28 N.E.2d 729 (1940) (any relevant evidence on defendant's malice); Cyrowski v. Polish-American Pub. Co., 196 Mich. 648, 163 N.W. 58 (1917) (testimony of individuals who advised reporter to question plaintiff before publishing defamatory article was admissible on the issue of malice); Friedell v. Blakely Printing Co., 163 Minn. 226, 203 N.W. 974 (1925) (any relevant evidence admissible); Cook v. Globe Printing Co., 227 Mo. 471, 127 S.W. 332 (1910) (evidence showing that defendant's editorial manager knew an important fact to be false admissible on question of malice); Butler v. Gazette Co., 119 App.Div. 767, 104 N.Y.S. 637 (1907) (any evidence admissible to prove actual malice of defendant); Briggs v. Byrd, 34 N.C. 377 (1851) (express malice may be proved either by direct evidence or surrounding circumstances); McBurney v. Times Publishing Co., 93 R.I. 331, 175 A.2d 170 (1961) (relevant evidence admissible to rebut testimony by reporters and editors that they published without malice); Lancour v. Herald & Globe Assn., 112 Vt. 471, 28 A.2d 396 (1942) (any relevant evidence on malice); Farrar v. Tribune Publishing Co., 57 Wash.2d 549, 358 P.2d 792 (1961) (all circumstances surrounding publication relevant and admissible).
Similarly, the courts have uniformly admitted such evidence on behalf of the defendant. See, e. g., Bohan v. Record Pub. Co., 1 Cal.App. 429, 82 P. 634 (1905) (testimony on good faith); Hearne v. De Young, 119 Cal. 670, 52 P. 150 (1898) (testimony on sources, precautions taken, and good faith); Ballinger v. Democrat Co., 203 Iowa 1095, 212 N.W. 557 (1927) (testimony of reporter and editor on good faith admissible); Snyder v. Tribune Co., 161 Iowa 671, 143 N.W. 519 (1913) (testimony as to source of information and good faith of reporter admissible); Courier-Journal Co. v. Phillips, 142 Ky. 372, 134 S.W. 446 (1911) (testimony of reporter on good faith); Conner v. Standard Pub. Co., 183 Mass. 474, 67 N.E. 596 (1903) (testimony as to source of information); Davis v. Marxhausen, 103 Mich. 315, 61 N.W. 504 (1894) (testimony on good faith and proper precautions taken before publishing); Julian v. Kansas City Star Co., 209 Mo. 35, 107 S.W. 496 (1908) (testimony on thoughts and intentions at the time of publication admissible); Paxton v. Woodward, 31 Mont. 195, 78 P.
215 (1904) (testimony as to motive, good faith, and sources); Las Vegas Sun, Inc. v. Franklin, 74 Nev. 282, 329 P.2d 867 (1958) (testimony of publisher on good faith); Lindsey v. Evening Journal Assn., 10 N.J.Misc. 1275, 163 A. 245 (1932) (testimony on good faith); Kohn v. P & D Publishing Co., 169 App.Div. 580, 155 N.Y.S. 455 (1915) (source); Hains v. New York Evening Journal, 240 N.Y.S. 734 (Sup.Ct.1930) (source); Goodrow v. Malone Telegram, Inc., 235 App.Div. 3, 255 N.Y.S. 812 (1932) (reporter's testimony as to source); Goodrow v. Press Co., 233 App.Div. 41, 251 N.Y.S. 364 (1931) (defendant can testify and introduce evidence on his good faith at time of publication); Kehoe v. New York Tribune, 229 App.Div. 220, 241 N.Y.S. 676 (1930) (testimony on good faith admissible to prevent imposition of punitive damages); Varvaro v. American Agriculturist, Inc., 222 App.Div. 213, 225 N.Y.S. 564 (1927) (defendant may testify and introduce evidence on lack of malice); Van Arsdale v. Time, Inc., 35 N.Y.S.2d 951 (Sup.Ct.), aff'd, 265 App.Div. 919, 39 N.Y.S.2d 413 (1942); Weichbrodt v. New York Evening Journal, 11 N.Y.S.2d 112 (Sup.Ct. 1939) (defendant may testify as to good faith and probable cause); Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118, 95 N.E. 735 (1911) (testimony on good faith); Cobb v. Oklahoma Pub. Co., 42 Okl. 314, 140 P. 1079 (1914) (defendant's testimony as to lack of malice and source of information); Times Pub. Co. v. Ray, 1 S.W.2d 471 (Tex.Civ.App.1927), aff'd, 12 S.W.2d 165 (1929) (testimony as to lack of malice); Pfister v. Milwaukee Free Press Co., 139 Wis. 627, 121 N.W. 938 (1909) (testimony as to absence of malice).
None of these cases as much as suggested that there were special limits applicable to the press on the discoverability of such evidence, either before or during trial.
16
As we stated in Tornillo, "no 'government agency—local, state, or federal—can tell a newspaper in advance what it can print and what it cannot.' " 418 U.S., at 255-256, 94 S.Ct., at 2838, quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 400, 93 S.Ct. 2553, 2566, 37 L.Ed.2d 669 (1973) (STEWART, J., dissenting).
17
Two years later, in Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), there was likewise no indication that the plaintiff is subject to substantial evidentiary restrictions in proving the defendant's fault. As Mr. Justice POWELL and Mr. Justice STEWART stated in concurrence, the answer to this question of culpability "depends upon a careful consideration of all the relevant evidence concerning Time's actions prior to the publication of the 'Milestones' article." Id., at 465-466, 96 S.Ct., at 971. They suggested that on remand all the evidence of record should be considered, which included evidence going to the beliefs of Time's editorial staff. See id., at 467-470, 96 S.Ct., at 971-972 and n. 5.
18
See, e. g., the cases collected in n. 15, supra, in which media defendants asserted, and courts upheld, the right to present this type of evidence at trial in order to establish good faith and lack of malice.
19
It was also suggested at oral argument that the privilege would cover questions in the "why" form, but not of the "who," "what," "when," and "where" type. Tr. of Oral Arg. 32-34. But it is evident from Lando's deposition that questions soliciting "why" answers relating to the editorial process were answered, e. g., Tr. of Deposition 21, L. 7; 1892, L. 18, and that he refused to answer others that did not fall into this category, e. g., id., at 666, L. 20; 774, L. 5; 877, L. 12; 880, L. 5; 1488, L. 3; 1893, L. 11; see Tr. of Oral Arg. 46.
20
The kind of question respondents seek to avoid answering is, by their own admission, the easiest to answer. See Tr. of Oral Arg. 31:
"[T]hey are set-up questions for our side. . . . [T]hese are not difficult questions to answer."
21
Often it is the libel defendant who first presents at trial direct evidence about the editorial process in order to establish good faith and lack of malice. That was true in New York Times Co. v. Sullivan, see, e. g., Record, O.T. 1963, No. 39, p. 762, and in many of the cases cited in n. 15, supra.
22
They invoke our observation in United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974): "[T]hose who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."
23
Mr. Justice BRENNAN would extend more constitutional protection to editorial discussion by excusing answers to relevant questions about in-house conversations until the plaintiff has made a prima facie case of falsity. If this suggestion contemplates a bifurcated trial, first on falsity and then on culpability and injury, we decline to subject libel trials to such burdensome complications and intolerable delay. On the other hand, if, as seems more likely, the prima facie showing does not contemplate a minitrial on falsity, no resolution of conflicting evidence on this issue, but only a credible assertion by the plaintiff, it smacks of a requirement that could be satisfied by an affidavit or a simple verification of the pleadings. We are reluctant to imbed this formalism in the Constitution.
24
See Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting): "Limitations are properly placed upon the operation of this general principle [of no testimonial privilege] only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." See also 8 J. Wigmore, Evidence § 2192 (McNaughton rev. 1961); 4 The Works of Jeremy Bentham 321 (J. Bowring ed. 1843).
25
It is urged that the large costs of defending lawsuits will intimidate the press and lead to self-censorship, particularly where smaller newspapers and broadcasters are involved. It is noted that Lando's deposition alone continued intermittently for over a year and filled 26 volumes containing nearly 3,000 pages and 240 exhibits. As well as out-of-pocket expenses of the deposition, there were substantial legal fees, and Lando and his associates were diverted from news gathering and reporting for a significant amount of time.
26
Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 740-741, 95 S.Ct. 1917, 1928, 44 L.Ed.2d 539 (1975); ACF Industries, Inc. v. EEOC, 439 U.S. 1081, 99 S.Ct. 865, 59 L.Ed.2d 52 (1979) (POWELL, J., joined by STEWART and REHNQUIST, JJ., dissenting from denial of certiorari); Burger: Agenda for 2000 A.D.: A Need for Systematic Anticipation, Address at the Pound Conference, 70 F.R.D. 83, 95-96 (1976). The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has proposed amendments to the Federal Rules of Civil Procedure designed to ameliorate this problem. Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure (1978).
27
Mr. Justice STEWART would remand to have the trial court rule once again on the relevance of the disputed questions. But the opinion of the trial judge reveals that he correctly understood that New York Times and Gertz required Herbert to prove either knowing falsehood or reckless disregard for truth. With the proper constitutional elements in mind, the judge went on to rule that the questions at issue were clearly relevant and that no constitutional privilege excused Lando from answering them. We hold that the judge committed no constitutional error but, contrary to Mr. Justice STEWART, find it inappropriate to review his rulings on relevancy.
1
Our decisions in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), and Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), provide no support for the theory that the prepublication editorial process enjoys a special status under the First Amendment. Rather, those decisions rest on the fundamental principle that the coerced publication of particular views, as much as their suppression, violates the freedom of speech.
2
See ABA, Report of Pound Conference Follow-Up Task Force, 74 F.R.D. 159, 191-192 (1976); Erickson, The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty-First Century, 76 F.R.D. 277, 288-290 (1978); Bell, The Pound Conference Follow-Up: A Response from the United States Department of Justice, 76 F.R.D. 320, 328 (1978); Powell, Reforms Long Overdue, 33 Record of N.Y.C.B.A. 458, 461-463 (1978).
3
See ante, at 176 n.25.
4
In some instances, it might be appropriate for the district court to delay enforcing a discovery demand, in the hope that the resolution of issues through summary judgment or other developments in discovery might reduce the need for the material demanded. It is pertinent to note that respondents here had not sought summary judgment on any issue at the time discovery was opposed, and have not argued that discovery should be postponed until other issues on which liability depends are resolved.
1
Freedom of speech is itself an end because the human community is in large measure defined through speech; freedom of speech is therefore intrinsic to individual dignity. This is particularly so in a democracy like our own, in which the autonomy of each individual is accorded equal and incommensurate respect. As the Court stated in Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971):
"The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests."
Respondents properly do not rest their arguments for an editorial privilege on the value of individual self-expression. So grounded, an editorial privilege might not stop short of shielding all speech.
2
As Professor Zechariah Chafee, Jr., stated in 1946:
"The First Amendment protects . . . a social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way. . . . Truth can be sifted out from falsehood only if the government is vigorously and constantly cross-examined . . . ." Free Speech in the United States 33.
Mr. Justice Holmes gave this social value a broader and more theoretical formulation:
"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. . . . While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (dissenting opinion).
See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969).
3
"Just so far as, at any point, the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced planning for the general good. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed. The principle of the freedom of speech springs from the necessities of the program of self-government. It is not a Law of Nature or of Reason in the abstract. It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage." A. Meiklejohn, Political Freedom: The Constitutional Powers of the People 27 (1965).
See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 765, 96 S.Ct. 1817, 1827, 48 L.Ed.2d 346 (1976); Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv.L.Rev. 1 (1965).
4
See Blasi, The Checking Value in First Amendment Theory, 1977 Am.Bar.Found.Research J. 521. Lord Erskine, while defending Thomas Paine in his trial for seditious libel, offered a compact and eloquent statement of this position:
"Gentlemen, I have insisted, at great length, upon the origin of governments, and detailed the authorities which you have heard upon the subject, because I consider it to be not only an essential support, but the very foundation of the liberty of the press. If Mr. Burke be right in his principles of government, I admit that the press, in my sense of its freedom, ought not to be free, nor free in any sense at all; and that all addresses to the people upon the subjects of government, and all speculations of amendment, of what kind or nature soever, are illegal and criminal; since if the people have, with out possible re-call, delegated all their authorities, they have no jurisdiction to act, and therefore none to think or write upon such subjects; and it would be a libel to arraign government or any of its acts, before those who have no jurisdiction to correct them. But on the other hand . . . no legal argument can shake the freedom of the press in my sense of it, if I am supported in my doctrines concerning the great unalienable right of the people, to reform or to change their governments. It is because the liberty of the press resolves itself into this great issue, that it has been in every country the last liberty which subjects have been able to wrest from power. Other liberties are held under governments, but the liberty of opinion keeps governments themselves in due subjection to their duties." 1 Speeches of Lord Erskine 524-525 (J. High ed. 1876).
This position is often predicated upon a natural adversity between the government and the press. See A. Bickel, The Morality of Consent 80-88 (1975). In Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966), for example, we stated:
"[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change . . . muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free."
5
1 Journals of the Continental Congress 108 (1774) (W. Ford ed. 1904).
6
"[I]t is useless to define free speech by talk about rights. The agitator asserts his constitutional right to speak, the government asserts its constitutional right to wage war. The result is a deadlock.
* * * * *
"The true boundary line of the First Amendment can be fixed only when Congress and the courts realize that the principle on which speech is classified as lawful or unlawful involves the balancing against each other of two very important social interests, in public safety and in the search for truth." Chafee, supra n. 2, at 31, 35.
7
In an analogous manner the Court has, over my strong protest, analyzed the exclusionary rule as permitting a defendant to assert social interests that do not reduce to his personal rights:
"The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp [v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081] decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any '[r]eparation comes too late.' Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965). Instead, " 'the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect . . . .' United States v. Calandra, [414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974)]." Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976).
8
Compare New York Times Co. v. Sullivan, 376 U.S. 254, 282, 84 S.Ct. 710, 727, 11 L.Ed.2d 686 (1964):
"In Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335-1341, 3 L.Ed.2d 1434, this Court held the utterance of a federal official to be absolutely privileged if made 'within the outer perimeter' of his duties. . . . Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official's duty to administer." (Emphasis supplied.)
9
Of course, "the press does not have a monopoly on either the First Amendment or the ability to enlighten." First National Bank of Boston v. Bellotti, 435 U.S., at 782, 98 S.Ct., at 1419. "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., at 705, 92 S.Ct., at 2668.
10
This is not, of course, to imply that the editorial process of persons or institutions other than the communications media does not merit First Amendment protection.
11
The editorial process could be inhibited in other ways as well. For example, public figures might bring harassment suits against the media in order to use discovery to uncover aspects of the editorial process which, if publicly revealed, would prove embarrassing to the press. In different contexts other First Amendment values might be affected. If sued by a powerful political figure, for example, journalists might fear reprisals for information disclosed during discovery. Cf. Reporters Committee for Freedom of the Press v. American Telephone & Telegraph Co., 192 U.S.App.D.C. 376, 593 F.2d 1030 (1978). Such a chilling effect might particularly impact on the press' ability to perform its "checking" function. See n. 4, supra. In the instant case, however, petitioner is not such a public official, nor are respondents claiming to be suffering the effects of such a chill.
12
Elements of petitioner's complaint appear to set forth a claim for invasion of privacy. See Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). The case has come to this Court framed as a libel action, however, and I shall so consider it.
13
Were the plaintiff in this case a public official intent upon using discovery to intimidate the press, other First Amendment values might well be implicated. See n. 11, supra.
14
My Brother POWELL writes separately to emphasize that district courts must carefully weigh "the values protected by the First Amendment" in determining the relevance of discovery requests. Ante, at 180. At the same time, however, he concludes that there should not be an evidentiary privilege which protects the editorial process because "whatever protection the 'exercise of editorial judgment' enjoys depends entirely on the protection the First Amendment accords the product of this judgment, namely, published speech," ante, at 178, and because an editorial privilege "is unnecessary to safeguard published speech." Ibid. I assume my Brother POWELL means by this that the exposure of predecisional editorial discussions will not meaningfully affect the nature of subsequent publications. But if this is true, I have difficulty understanding exactly what First Amendment values my Brother POWELL expects district courts to place in the balance. He may be suggesting that First Amendment values are impaired merely by requiring media defendants to respond to discovery requests like any other litigant. But even if district courts were to apply stricter standards of relevance in cases involving media defendants, the burden of pretrial discovery would be only marginally decreased, and it does not seem justified to assume that this result would meaningfully affect the nature of subsequent publications.
15
See Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970).
16
I do not reach the case in which a media defendant has more specific and concrete interests at stake. See nn. 11 and 13, supra. Nor do I reach the case in which a litigant with more weighty interests than a civil plaintiff attempts to overcome a claim of editorial privilege. See, e. g., Associated Press v. NLRB, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953 (1937); Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945).
17
A plaintiff can make his prima facie showing as part of his motion for an order compelling discovery under Fed. Rule Civ.Proc. 37, or at any other appropriate time.
1
See Webster's New International Dictionary 1367 (2d ed. 1961).
2
The following are some random samples:
"Did you ever come to a conclusion that it was unnecessary to talk to Capt. Laurence Potter prior to the presentation of the program on February 4th?"
"Did you come to the conclusion that you did not want to have a filmed interview with Sgt. Carmon for the program?"
"When you prepared the final draft of the program to be aired, did you form any conclusion as to whether one of the matters presented by that program was Col. Herbert's view of the treatment of the Vietnamese?"
"Do you have any recollection of discussing with anybody at CBS whether that sequence should be excluded from the program as broadcast?"
"Prior to the publication of the Atlantic Monthly article, Mr. Lando, did you discuss that article or the preparation of that article with any representative of CBS?"
3
Rule 26(b)(1) provides in relevant part:
"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."
4
Fed.Rule Civ.Proc. 1.
1
See Bell, The Pound Conference Follow-up: A Response from the United States Department of Justice, 76 F.R.D. 320, 328-329 (1978); Erikson, The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty-First Century, 76 F.R.D. 277, 288-290 (1978); Lasker, The Court Crunch: A View from the Bench, 76 F.R.D. 245, 252 (1978); A. B. A. Litigation Section, Report of the Special Committee for the Study of Discovery Abuse (Oct.1977); Stanley, President's Page, 62 A.B.A.J. 1375 (1976); Burger, Agenda for 2000 A.D.—A Need for Systematic Anticipation, 70 F.R.D. 83, 95-96 (1976); 4 J. Moore, Federal Practice ¶ 26.02[3] (2d ed. 1976).
2
See Anderson, Libel and Press Self-Censorship, 53 Texas L.Rev. 422, 435 (1975).
3
As the facts of the instant case illustrate, that expense can be considerable. The deposition of Lando alone consumed 26 days and close to 3,000 pages of transcript. See 568 F.2d 974, 982 (CA2 1977).
4
Although the separate opinions of my Brothers POWELL and STEWART display greater solicitude for First Amendment values than does the opinion for the Court, I believe that they too elide the critical issue presented by this case. Under the "broad and liberal" standard of Hickman, surely disclosure of what was known to a journalist but "was not published," ante, at 200 (opinion of STEWART, J.), will often be germane to whether that individual proceeded with deliberate or reckless disregard for the truth. And admonishing district courts to monitor discovery in the "interest of justice," ante, at 180 (opinion of POWELL, J.) or to prevent "undue burden or expense," ibid., adds little to the guidance already afforded by Rule 26 and cannot adequately mitigate the burdens on the press so long as Hickman's directive remains in force. Moreover, neither opinion is directly responsive to the effect of discovery on editorial discussion. See infra, at 208-209.
5
Respondents in this case produced a considerable amount of evidence regarding preparation of the broadcast:
"Lando answered innumerable questions about what he knew, or had seen; whom he interviewed; intimate details of his discussions with interviewees; and the form and frequency of his communications with sources. The exhibits produced included transcripts of his interviews; volumes of reporters notes; videotapes of interviews; and a series of drafts of the '60 Minutes' telecast. Herbert also discovered the contents of pre-telecast conversations between Lando and Wallace as well as reactions to documents considered by both." 568 F.2d, at 982 (footnote omitted).
As an abstract proposition, it is not self-evident why disclosure of this material, for which no privilege was sought, would be less likely to inhibit the final publication than state-of-mind inquiries, which in most cases would presumably elicit self-serving responses. Indeed, as the Court acknowledges, plaintiffs may "rarely be successful in proving awareness of falsehood from the mouth of the defendant himself." Ante, at 170.
Thus, I seriously doubt that state-of-mind questions will substantially "increase the likelihood of large damage judgments in libel actions." Ante, at 191 (opinion of BRENNAN, J.). But neither can it be disputed that such questions might on occasion generate answers useful to plaintiffs in defamation suits. See, e. g., Davis v. Schuchat, 166 U.S.App.D.C. 351, 355-356, 510 F.2d 731, 735-736 (1975); Goldwater v. Ginzburg, 414 F.2d 324, 334-335 (CA2 1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970); Varnish v. Best Medium Publishing Co., 405 F.2d 608, 612 (CA2 1968), cert. denied, 394 U.S. 987, 89 S.Ct. 1465, 22 L.Ed.2d 762 (1969).
6
Contrary to the Court's intimation, ante, at 165, 169-170 this would not be the first instance in which protection apart from the Sullivan malice standard has been extended to safeguard the constitutional interests implicated in libel suits. For example, lower courts have displayed sensitivity to First Amendment values in assessing motions to compel disclosure of confidential sources, see Cervantes v. Time, Inc., 464 F.2d 986, 992-994 (CA8 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973), and motions by defendants for summary judgment. See Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 34-35, 365 F.2d 965, 967-968 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967).
Different considerations would, of course, obtain if a privilege for editorial communications were sought in conjunction with criminal proceedings. Cf. New York Times Co. v. Jascalevich, 439 U.S. 1301, 98 S.Ct. 3060, 58 L.Ed.2d 12 (1978) (MARSHALL, J., in chambers); United States v. Nixon, 418 U.S. 683, 712-713, 94 S.Ct. 3090, 3109, 3110, 41 L.Ed.2d 1039 (1974); Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); id., at 741-743, 92 S.Ct., at 2680-2681 (STEWART, J., dissenting).
| 23
|
441 U.S. 281
99 S.Ct. 1705
60 L.Ed.2d 208
CHRYSLER CORPORATION, Petitioner,v.Harold BROWN, Secretary of Defense, et al.
No. 77-922.
Argued Nov. 8, 1978.
Decided April 18, 1979.
Syllabus
Petitioner, as a party to numerous Government contracts, was required to comply with Executive Orders 11246 and 11375, which charge the Secretary of Labor with ensuring that corporations that benefit from Government contracts provide equal employment opportunity regardless of race or sex. Regulations promulgated by the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) require Government contractors to furnish reports about their affirmative-action programs and the general composition of their work forces, and provide that notwithstanding exemption from mandatory disclosure under the Freedom of Information Act (FOIA), records obtained pursuant to Executive Order 11246 shall be made available for inspection if it is determined that the requested inspection furthers the public interest and does not impede agency functions, except in the case of records disclosure of which is prohibited by law. After the Department of Defense's Defense Logistics Agency (DLA), the designated compliance agency responsible for monitoring petitioner's employment practices, informed petitioner that third parties had made an FOIA request for disclosure of certain materials that had been furnished to the DLA by petitioner, petitioner objected to release of the materials. The DLA determined that the materials were subject to disclosure under the FOIA and OFCCP disclosure rules, and petitioner then filed a complaint in the Federal District Court seeking to enjoin release of the documents. Petitioner contended, inter alia, that disclosure was barred by the FOIA and was inconsistent with the Trade Secrets Act, 18 U.S.C. § 1905, which imposes criminal sanctions on Government employees who disclose or make known, in any manner or to any extent "not authorized by law," certain classes of information submitted to a Government agency, including trade secrets and confidential statistical data. Finding jurisdiction to subject the disclosure decision to review under the Administrative Procedure Act (APA), the District Court held that certain of the requested information fell within Exemption 4 of the FOIA, relating to trade secrets and commercial or financial information; that whether the requested information may or must be withheld thus depended on applicable agency regulations; and that here a regulation which states that no officer or employee of the Department of Labor is to violate 18 U.S.C. § 1905, and which proscribes specified disclosures if "not authorized by law," required that the information be withheld. Both sides appealed, and the Court of Appeals vacated the District Court's judgment. While agreeing with the District Court that the FOIA does not compel withholding of information that falls within its exemptions, and that analysis must proceed under the APA, the Court of Appeals reached a different conclusion as to the interpretation of 29 CFR § 70.21(a). In the Court of Appeals' view, disclosures made pursuant to OFCCP disclosure regulations are "authorized by law" by virtue of those regulations.
Held:
1. The FOIA is exclusively a disclosure statute and affords petitioner no private right of action to enjoin agency disclosure. The language, logic, and history of the FOIA show that its provisions exempting specified material from disclosure were only meant to permit the agency to withhold certain information, and were not meant to mandate nondisclosure. Congressional concern was with the agency's need or preference for confidentiality; the FOIA by itself protects the interest in confidentiality of private entities submitting information only to the extent that this interest is endorsed by the agency collecting the information. Pp. 290-294.
2. The type of disclosure threatened in this case is not "authorized by law" within the meaning of the Trade Secrets Act on the theory that the OFCCP regulations relied on by DLA were the source of that authorization. Pp. 295-316.
(a) The Act addresses formal agency action as well as acts of individual Government employees, and there is nothing in its legislative history to show that Congress intended the phrase "authorized by law" to have a special, limited meaning different from the traditional understanding that properly promulgated, substantive agency regulations have the "force and effect of law." In order for a regulation to have the "force and effect of law," it must be a "substantive" or "legislative-type" rule affecting individual rights and obligations (as do the regulations in the case at bar), and it must be the product of a congressional grant of legislative authority, promulgated in conformity with any procedural requirements imposed by Congress. Pp. 295-303.
(b) The disclosure regulations at issue in this case cannot be based on § 201 of Executive Order 11246, as amended, and a regulation which permits units in the Department of Labor to promulgate supplemental disclosure regulations consistent with the FOIA. Since materials that are exempt from disclosure under the FOIA are outside the ambit of that Act, the Government cannot rely on the FOIA as congressional authorization for disclosure regulations that permit the release of information within the Act's exemptions. In order for regulations adopted under § 201 of Executive Order 11246—which speaks in terms of rules and regulations "necessary and appropriate" to achieve the Executive Order's purposes of ending discrimination by the Federal Government and those who deal with it—to have the "force and effect of law," there must be a nexus between the regulations and some delegation of the requisite legislative authority by Congress. When Congress enacted statutes which arguably authorized the Executive Order (the Federal Property and Administration Services Act of 1949, Titles VI and VII of the Civil Rights Act of 1964, and the Equal Employment Opportunity Act of 1972), it was not concerned with public disclosure of trade secrets or confidential business information, and it is not possible to find in these statutes a delegation of the disclosure authority asserted by the Government here. Also, one cannot readily pull from the logic and purposes of the Executive Order any concern with the public's access to information in Government files or the importance of protecting trade secrets or confidential business statistics. Pp. 303-308.
(c) Legislative authority for the OFCCP disclosure regulations cannot be found in 5 U.S.C. § 301, which authorizes heads of Government departments to prescribe regulations to govern internal departmental affairs and the custody and use of its records, and which provides that it does not authorize withholding information from the public or limiting the availability of records to the public. Section 301 is a "housekeeping statute," authorizing rules of agency organization, procedure, or practice as opposed to "substantive rules." There is nothing in the legislative history to indicate that § 301 is a substantive grant of legislative power to promulgate rules authorizing the release of trade secrets or confidential business information. Thus, § 301 does not authorize regulations limiting the scope of the Trade Secrets Act. Pp. 308-312.
(d) There is also a procedural defect in the OFCCP disclosure regulations that precludes courts from affording them the force and effect of law, since they were promulgated as "interpretative rules" without complying with the APA's requirement that interested persons be given general notice of an agency's proposed rulemaking and an opportunity to comment before a "substantive rule" is promulgated. An "interpretative regulation" cannot be the "authoriz[ation] by law" required by the Trade Secrets Act. Pp. 312-316. 3. However, the Trade Secrets Act does not afford a private right of action to enjoin disclosure in violation of the statute. Where this Court has implied a private right of action under a criminal statute "there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone." Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26. Nothing in the Trade Secrets Act prompts such an inference; nor is there any indication of legislative intent to create a private right of action. Most importantly, a private right of action under the Act is not necessary to make effective the congressional purpose, since review of DLA's decision to disclose petitioner's employment data is available under the APA. Pp. 316-317.
4. Since the Trade Secrets Act and any "authoriz[ation] by law" contemplated by that Act place substantive limits on agency action, DLA's decision to disclose petitioner's reports is reviewable agency action and petitioner is a person "adversely affected or aggrieved" within the meaning of the APA's provision affording the right of judicial review of agency action to such a person. Because the Court of Appeals did not reach the issue whether disclosure of petitioner's documents was barred by the Trade Secrets Act, the case is remanded in order that the Court of Appeals may consider whether the contemplated disclosures would violate the Act. Pp. 317-319.
3d Cir., 565 F.2d 1172, vacated and remanded.
Burt A. Braverman, Washington, D. C., for petitioner.
Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
The expanding range of federal regulatory activity and growth in the Government sector of the economy have increased federal agencies' demands for information about the activities of private individuals and corporations. These developments have paralleled a related concern about secrecy in Government and abuse of power. The Freedom of Information Act (hereinafter FOIA) was a response to this concern, but it has also had a largely unforeseen tendency to exacerbate the uneasiness of those who comply with governmental demands for information. For under the FOIA third parties have been able to obtain Government files containing information submitted by corporations and individuals who thought that the information would be held in confidence.
2
This case belongs to a class that has been popularly denominated "reverse-FOIA" suits. The Chrysler Corp. (hereinafter Chrysler) seeks to enjoin agency disclosure on the grounds that it is inconsistent with the FOIA and 18 U.S.C. § 1905, a criminal statute with origins in the 19th century that proscribes disclosure of certain classes of business and personal information. We agree with the Court of Appeals for the Third Circuit that the FOIA is purely a disclosure statute and affords Chrysler no private right of action to enjoin agency disclosure. But we cannot agree with that court's conclusion that this disclosure is "authorized by law" within the meaning of § 1905. Therefore, we vacate the Court of Appeals' judgment and remand so that it can consider whether the documents at issue in this case fall within the terms of § 1905.
3
* As a party to numerous Government contracts, Chrysler is required to comply with Executive Orders 11246 and 11375, which charge the Secretary of Labor with ensuring that corporations that benefit from Government contracts provide equal employment opportunity regardless of race or sex.1 The United States Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has promulgated regulations which require Government contractors to furnish reports and other information about their affirmative-action programs and the general composition of their work forces.2
4
The Defense Logistics Agency (DLA) (formerly the Defense Supply Agency) of the Department of Defense is the designated compliance agency responsible for monitoring Chrysler's employment practices.3 OFCCP regulations require that Chrysler make available to this agency written affirmative-action programs (AAP's) and annually submit Employer Information Reports, known as EEO-1 Reports. The agency may also conduct "compliance reviews" and "complaint investigations," which culminate in Compliance Review Reports (CRR's) and Complaint Investigation Reports (CIR's), respectively.4
5
Regulations promulgated by the Secretary of Labor provide for public disclosure of information from records of the OFCCP and its compliance agencies. Those regulations state that notwithstanding exemption from mandatory disclosure under the FOIA, 5 U.S.C. § 552,
6
"records obtained or generated pursuant to Executive Order 11246 (as amended) . . . shall be made available for inspection and copying . . . if it is determined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the OFCC[P] or the Compliance Agencies except in the case of records disclosure of which is prohibited by law."5
7
It is the voluntary disclosure contemplated by this regulation, over and above that mandated by the FOIA, which is the gravamen of Chrysler's complaint in this case.
8
This controversy began on May 14, 1975, when the DLA informed Chrysler that third parties had made an FOIA request for disclosure of the 1974 AAP for Chrysler's Newark, Del., assembly plant and an October 1974 CIR for the same facility. Nine days later, Chrysler objected to release of the requested information, relying on OFCCP's disclosure regulations and on exemptions to the FOIA. Chrysler also requested a copy of the CIR, since it had never seen it. DLA responded the following week that it had determined that the requested material was subject to disclosure under the FOIA and the OFCCP disclosure rules, and that both documents would be released five days later.
9
On the day the documents were to be released Chrysler filed a complaint in the United States District Court for Delaware seeking to enjoin release of the Newark documents. The District Court granted a temporary restraining order barring disclosure of the Newark documents and requiring that DLA give five days' notice to Chrysler before releasing any similar documents. Pursuant to this order, Chrysler was informed on July 1, 1975, that DLA had received a similar request for information about Chrysler's Hamtramck, Mich., plant. Chrysler amended its complaint and obtained a restraining order with regard to the Hamtramck disclosure as well.
10
Chrysler made three arguments in support of its prayer for an injunction: that disclosure was barred by the FOIA; that it was inconsistent with 18 U.S.C. § 1905, 42 U.S.C. § 2000e-8(e), and 44 U.S.C. § 3508, which for ease of reference will be referred to as the "confidentiality statutes"; and finally that disclosure was an abuse of agency discretion insofar as it conflicted with OFCCP rules. The District Court held that it had jurisdiction under 28 U.S.C. § 1331 to subject the disclosure decision to review under the Administrative Procedure Act (APA). 5 U.S.C. §§ 701-706. It conducted a trial de novo on all of Chrysler's claims; both sides presented extensive expert testimony during August 1975.
11
On April 20, 1976, the District Court issued its opinion. It held that certain of the requested information, the "manning" tables, fell within Exemption 4 of the FOIA.6 The District Court reasoned from this holding that the tables may or must be withheld, depending on applicable agency regulations, and that here a governing regulation required that the information be withheld. Pursuant to 5 U.S.C. § 301, the enabling statute which gives federal department heads control over department records, the Secretary of Labor has promulgated a regulation, 29 CFR § 70.21(a) (1978), stating that no officer or employee of the Department is to violate 18 U.S.C. § 1905. That section imposes criminal sanctions on Government employees who make unauthorized disclosure of certain classes of information submitted to a Government agency, including trade secrets and confidential statistical data. In essence, the District Court read § 1905 as not merely a prohibition of unauthorized disclosure of sensitive information by Government employees, but as a restriction on official agency actions taken pursuant to promulgated regulations.
12
Both sides appealed, and the Court of Appeals for the Third Circuit vacated the District Court's judgment. Chrysler Corp. v. Schlesinger, 565 F.2d 1172 (1977). It agreed with the District Court that the FOIA does not compel withholding of information that falls within its nine exemptions. It also, like the District Court, rejected Chrysler's reliance on the confidentiality statutes, either because there was no implied private right of action to proceed under the statute, or because the statute, by its terms, was not applicable to the information at issue in this case. It agreed with the District Court that analysis must proceed under the APA. But it disagreed with that court's interpretation of 29 CFR § 70.21(a). By the terms of that regulation, the specified disclosures are only proscribed if "not authorized by law," the standard of 18 U.S.C. § 1905. In the Court of Appeals' view, disclosures made pursuant to OFCCP disclosure regulations are "authorized by law" by virtue of those regulations. Therefore, it held that 29 CFR § 70.21(a) was inapplicable.
13
The Court of Appeals also disagreed with the District Court's view of the scope of review under the APA. It held that the District Court erred in conducting a de novo review; review should have been limited to the agency record. However, the Court of Appeals found that record inadequate in this case and directed that the District Court remand to the agency for supplementation. Because of a conflict in the Circuits7 and the general importance of these "reverse-FOIA" cases, we granted certiorari, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504, and now vacate the judgment of the Third Circuit and remand for further proceedings.
II
14
We have decided a number of FOIA cases in the last few years.8 Although we have not had to face squarely the question whether the FOIA ex proprio vigore forbids governmental agencies from disclosing certain classes of information to the public, we have in the course of at least one opinion intimated an answer.9 We have, moreover, consistently recognized that the basic objective of the Act is disclosure.10
15
In contending that the FOIA bars disclosure of the requested equal employment opportunity information, Chrysler relies on the Act's nine exemptions and argues that they require an agency to withhold exempted material. In this case it relies specifically on Exemption 4:
16
"(b) [FOIA] does not apply to matters that are—
17
* * * * *
18
"(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential . . . ." 5 U.S.C. § 552(b)(4).
19
Chrysler contends that the nine exemptions in general, and Exemption 4 in particular, reflect a sensitivity to the privacy interests of private individuals and nongovernmental entities. That contention may be conceded without inexorably requiring the conclusion that the exemptions impose affirmative duties on an agency to withhold information sought.11 In fact, that conclusion is not supported by the language, logic, or history of the Act.
20
The organization of the Act is straightforward. Subsection (a), 5 U.S.C. § 552(a), places a general obligation on the agency to make information available to the public and sets out specific modes of disclosure for certain classes of information. Subsection (b), 5 U.S.C. § 552(b), which lists the exemptions, simply states that the specified material is not subject to the disclosure obligations set out in subsection (a). By its terms, subsection (b) demarcates the agency's obligation to disclose; it does not foreclose disclosure.
21
That the FOIA is exclusively a disclosure statute is, perhaps, demonstrated most convincingly by examining its provision for judicial relief. Subsection (a)(4)(B) gives federal district courts "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). That provision does not give the authority to bar disclosure, and thus fortifies our belief that Chrysler, and courts which have shared its view, have incorrectly interpreted the exemption provisions of the FOIA. The Act is an attempt to meet the demand for open government while preserving workable confidentiality in governmental decisionmaking.12 Congress appreciated that, with the expanding sphere of governmental regulation and enterprise, much of the information within Government files has been submitted by private entities seeking Government contracts or responding to unconditional reporting obligations imposed by law. There was sentiment that Government agencies should have the latitude, in certain circumstances, to afford the confidentiality desired by these submitters.13 But the congressional concern was with the agency's need or preference for confidentiality; the FOIA by itself protects the submitters' interest in confidentiality only to the extent that this interest is endorsed by the agency collecting the information.
22
Enlarged access to governmental information undoubtedly cuts against the privacy concerns of nongovernmental entities, and as a matter of policy some balancing and accommodation may well be desirable. We simply hold here that Congress did not design the FOIA exemptions to be mandatory bars to disclosure.14
23
This conclusion is further supported by the legislative history. The FOIA was enacted out of dissatisfaction with § 3 of the APA, which had not resulted in as much disclosure by the agencies as Congress later thought desirable.15 Statements in both the Senate and House Reports on the effect of the exemptions support the interpretation that the exemptions were only meant to permit the agency to withhold certain information, and were not meant to mandate nondisclosure. For example, the House Report states:
24
"[The FOIA] sets up workable standards for the categories of records which may be exempt from public disclosure . . .."
25
" . . . There may be legitimate reasons for nondisclosure and [the FOIA] is designed to permit nondisclosure in such cases."
26
"[The FOIA] lists in a later subsection the specific categories of information which may be exempted from disclosure.16
27
We therefore conclude that Congress did not limit an agency's discretion to disclose information when it enacted the FOIA. It necessarily follows that the Act does not afford Chrysler any right to enjoin agency disclosure.
III
28
Chrysler contends, however, that even if its suit for injunctive relief cannot be based on the FOIA, such an action can be premised on the Trade Secrets Act, 18 U.S.C. § 1905. The Act provides:
29
"Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment."
30
There are necessarily two parts to Chrysler's argument: that § 1905 is applicable to the type of disclosure threatened in this case, and that it affords Chrysler a private right of action to obtain injunctive relief.
A.
31
The Court of Appeals held that § 1905 was not applicable to the agency disclosure at issue here because such disclosure was "authorized by law" within the meaning of the Act. The court found the source of that authorization to be the OFCCP regulations that DLA relied on in deciding to disclose information on the Hamtramck and Newark plants.17 Chrysler contends here that these agency regulations are not "law" within the meaning of § 1905.
32
It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the "force and effect of law."18 This doctrine is so well established that agency regulations implementing federal statutes have been held to pre-empt state law under the Supremacy Clause.19 It would therefore take a clear showing of contrary legislative intent before the phrase "authorized by law" in § 1905 could be held to have a narrower ambit than the traditional understanding.
33
The origins of the Trade Secrets Act can be traced to Rev.Stat. § 3167, an Act which barred unauthorized disclosure of specified business information by Government revenue officers. There is very little legislative history concerning the original bill, which was passed in 1864.20 It was re-enacted numerous times, with some modification, and remained part of the revenue laws until 1948.21 Congressional statements made at the time of these re-enactments indicate that Congress was primarily concerned with unauthorized disclosure of business information by feckless or corrupt revenue agents,22 for in the early days of the Bureau of Internal Revenue, it was the field agents who had substantial contact with confidential financial information.23
34
In 1948, Rev.Stat. § 3167 was consolidated with two other statutes—involving the Tariff Commission and the Department of Commerce—to form the Trade Secrets Act.24 The statute governing the Tariff Commission was very similar to Rev.Stat. § 3167, and it explicitly bound members of the Commission as well as Commission employees.25 The Commerce Department statute embodied some differences in form. It was a mandate addressed to the Bureau of Foreign and Domestic Commerce and to its Director, but there was no reference to Bureau employees and it contained no criminal sanctions.26 Unlike the other statutes, it also had no exception for disclosures "authorized by law." In its effort to "consolidat[e]" the three statutes, Congress enacted § 1905 and essentially borrowed the form of Rev.Stat. § 3167 and the Tariff Commission statute.27 We find nothing in the legislative history of § 1905 and its predecessors which lends support to Chrysler's contention that Congress intended the phrase "authorized by law," as used in § 1905, to have a special, limited meaning.
35
Nor do we find anything in the legislative history to support the respondents' suggestion that § 1905 does not address formal agency action—i. e., that it is essentially an "antileak" statute that does not bind the heads of governmental departments or agencies. That would require an expansive and unprecedented holding that any agency action directed or approved by an agency head is "authorized by law," regardless of the statutory authority for that action. As Attorney General Brownell recognized not long after § 1905 was enacted, such a reading is difficult to reconcile with Congress' intent to consolidate the Tariff Commission and Commerce Department statutes, both of which explicitly addressed ranking officials, with Rev.Stat. § 3167.28 It is also inconsistent with a settled understanding—previously shared by the Department of Justice—that has been continually articulated and relied upon in Congress during the legislative efforts in the last three decades to increase public access to Government information.29 Although the existence of this understanding is not by any means dispositive, it does shed some light on the intent of the enacting Congress. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969); FHA v. The Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 145, 3 L.Ed.2d 132 (1958). In sum, we conclude that § 1905 does address formal agency action and that the appropriate inquiry is whether OFCCP's regulations provide the "authoriz[ation] by law" required by the statute.
36
In order for a regulation to have the "force and effect of law," it must have certain substantive characteristics and be the product of certain procedural requisites. The central distinction among agency regulations found in the APA is that between "substantive rules" on the one hand and "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice" on the other.30 A "substantive rule" is not defined in the APA, and other authoritative sources essentially offer definitions by negative inference.31 But in Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974), we noted a characteristic inherent in the concept of a "substantive rule." We described a substantive rule—or a "legislative-type rule," id., at 236, 94 S.Ct., at 1074—as one "affecting individual rights and obligations." Id., at 232, 94 S.Ct., at 1073. This characteristic is an important touchstone for distinguishing those rules that may be "binding" or have the "force of law." Id., at 235, 236, 94 S.Ct., at 1074.
37
That an agency regulation is "substantive," however, does not by itself give it the "force and effect of law." The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes. As this Court noted in Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405 n. 9, 53 L.Ed.2d 448 (1977):
38
"Legislative, or substantive, regulations are 'issued by an agency pursuant to statutory authority and . . . implement the statute, as, for example, the proxy rules issued by the Securities and Exchange Commission. . . . Such rules have the force and effect of law.' "32
39
Likewise the promulgation of these regulations must conform with any procedural requirements imposed by Congress. Morton v. Ruiz, supra, 415 U.S. at 232, 94 S.Ct. at 1073. For agency discretion is limited not only by substantive, statutory grants of authority, but also by the procedural requirements which "assure fairness and mature consideration of rules of general application." NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 89 S.Ct. 1426, 1429, 22 L.Ed.2d 709 (1969). The pertinent procedural limitations in this case are those found in the APA.
40
The regulations relied on by the respondents in this case as providing "authoriz[ation] by law" within the meaning of § 1905 certainly affect individual rights and obligations; they govern the public's right to information in records obtained under Executive Order 11246 and the confidentiality rights of those who submit information to OFCCP and its compliance agencies. It is a much closer question, however, whether they are the product of a congressional grant of legislative authority.
41
In his published memorandum setting forth the disclosure regulations at issue in this case, the Secretary of Labor states that the authority upon which he relies in promulgating the regulations are § 201 of Executive Order 11246, as amended, and 29 CFR § 70.71 (1978), which permits units in the Department of Labor to promulgate supplemental disclosure regulations consistent with 29 CFR pt. 70 and the FOIA. 38 Fed.Reg. 3192-3194 (1973). Since materials that are exempt from disclosure under the FOIA are by virtue of Part II of this opinion outside the ambit of that Act, the Government cannot rely on the FOIA as congressional authorization for disclosure regulations that permit the release of information within the Act's nine exemptions.
42
Section 201 of Executive Order 11246 directs the Secretary of Labor to "adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes thereof." But in order for such regulations to have the "force and effect of law," it is necessary to establish a nexus between the regulations and some delegation of the requisite legislative authority by Congress. The origins of the congressional authority for Executive Order 11246 are somewhat obscure and have been roundly debated by commentators and courts.33 The Order itself as amended establishes a program to eliminate employment discrimination by the Federal Government and by those who benefit from Government contracts. For purposes of this case, it is not necessary to decide whether Executive Order 11246 as amended is authorized by the Federal Property and Administrative Services Act of 1949,34 Titles VI and VII of the Civil Rights Act of 1964,35 the Equal Employment Opportunity Act of 1972,36 or some more general notion that the Executive can impose reasonable contractual requirements in the exercise of its procurement authority.37 The pertinent inquiry is whether under any of the arguable statutory grants of authority the OFCCP disclosure regulations relied on by the respondents are reasonably within the contemplation of that grant of authority. We think that it is clear that when it enacted these statutes, Congress was not concerned with public disclosure of trade secrets or confidential business information, and, unless we were to hold that any federal statute that implies some authority to collect information must grantlegislative authority to disclose that information to the public, it is simply not possible to find in these statutes a delegation of the disclosure authority asserted by the respondents here.38
43
The relationship between any grant of legislative authority and the disclosure regulations becomes more remote when one examines § 201 of the Executive Order. It speaks in terms of rules and regulations "necessary and appropriate" to achieve the purposes of the Executive Order. Those purposes are an end to discrimination in employment by the Federal Government and those who deal with the Federal Government. One cannot readily pull from the logic and purposes of the Executive Order any concern with the public's access to information in Government files or the importance of protecting trade secrets or confidential business statistics.
44
The "purpose and scope" section of the disclosure regulations indicates two underlying rationales: OFCCP's general policy "to disclose information to the public," and its policy "to cooperate with other public agencies as well as private parties seeking to eliminate discrimination in employment." 41 CFR § 60-40.1 (1978). The respondents argue that "[t]he purpose of the Executive Order is to combat discrimination in employment, and a disclosure policy designed to further this purpose is consistent with the Executive Order and an appropriate subject for regulation under its aegis." Brief for Respondents 48. Were a grant of legislative authority as a basis for Executive Order 11246 more clearly identifiable, we might agree with the respondents that this "compatibility" gives the disclosure regulations the necessary legislative force. But the thread between these regulations and any grant of authority by the Congress is so strained that it would do violence to established principles of separation of powers to denominate these particular regulations "legislative" and credit them with the "binding effect of law."
45
This is not to say that any grant of legislative authority to a federal agency by Congress must be specific before regulations promulgated pursuant to it can be binding on courts in a manner akin to statutes. What is important is that the reviewing court reasonably be able to conclude that the grant of authority contemplates the regulations issued. Possibly the best illustration remains Mr. Justice Frankfurter's opinion for the Court in National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). There the Court rejected the argument that the Communications Act of 1934 did not give the Federal Communications Commission authority to issue regulations governing chain broadcasting beyond the specification of technical, engineering requirements. Before reaching that conclusion, however, the Court probed the language and logic of the Communications Act and its legislative history. Only after this careful parsing of authority did the Court find that the regulations had the force of law and were binding on the courts unless they were arbitrary or not promulgated pursuant to prescribed procedures.
46
"Our duty is at an end when we find that the action of the Commission was based upon findings supported by evidence, and was made pursuant to authority granted by Congress. It is not for us to say that the 'public interest' will be furthered or retarded by the Chain Broadcasting Regulations. The responsibility belongs to the Congress for the grant of valid legislative authority and to the Commission for its exercise." Id., at 224, 63 S.Ct., at 1013.
47
The respondents argue, however, that even if these regulations do not have the force of law by virtue of Executive Order 11246, an explicit grant of legislative authority for such regulations can be found in 5 U.S.C. § 301, commonly referred to as the "housekeeping statute."39 It provides:
48
"The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public."
49
The antecedents of § 301 go back to the beginning of the Republic, when statutes were enacted to give heads of early Government departments authority to govern internal departmental affairs. Those laws were consolidated into one statute in 1874 and the current version of the statute was enacted in 1958.
50
Given this long and relatively uncontroversial history, and the terms of the statute itself, it seems to be simply a grant of authority to the agency to regulate its own affairs. What is clear from the legislative history of the 1958 amendment to § 301 is that this section was not intended to provide authority for limiting the scope of § 1905.40
51
The 1958 amendment to § 301 was the product of congressional concern that agencies were invoking § 301 as a source of authority to withhold information from the public. Congressman Moss sponsored an amendment that added the last sentence to § 301, which specifically states that this section "does not authorize withholding information from the public." The Senate Report accompanying the amendment stated:
52
"Nothing in the legislative history of [§ 301] shows that Congress intended this statute to be a grant of authority to the heads of the executive departments to withhold information from the public or to limit the availability of records to the public." S.Rep. No. 1621, 85th Cong., 2d Sess., 2 (1958).
53
The logical corollary to this observation is that there is nothing in the legislative history of § 301 to indicate it is a substantive grant of legislative power to promulgate rules authorizing the release of trade secrets or confidential business information. It is indeed a "housekeeping statute," authorizing what the APA terms "rules of agency organization procedure or practice" as opposed to "substantive rules."41
54
This would suggest that regulations pursuant to § 301 could not provide the "authoriz[ation] by law" required by § 1905. But there is more specific support for this position. During the debates on the 1958 amendment Congressman Moss assured the House that the amendment would "not affect the confidential status of information given to the Government and carefully detailed in title 18, United States Code, section 1905." 104 Cong.Rec. 6550 (1958).
55
The respondents argue that this last statement is of little significance, because it is only made with reference to the amendment. But that robs Congressman Moss' statement of any substantive import. If Congressman Moss thought that records within the terms of § 1905 could be released on the authority of a § 301 regulation, why was he (and presumably the House) concerned with whether the amendment affected § 1905? Under the respondents' interpretation, records released pursuant to § 301 are outside § 1905 by virtue of the first sentence of § 301.
56
The remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history. Congressman Moss' statement must be considered with the Reports of both Houses and the statements of other Congressmen, all of which refute the respondents' interpretation of the relationship between § 301 and § 1905.42 Of greatest significance, however, is the "housekeeping" nature of § 301 itself. On the basis of this evidence of legislative intent, we agree with the Court of Appeals for the District of Columbia Circuit that "[s]ection 301 does not authorize regulations limiting the scope of section 1905." Charles River Park "A," Inc. v. Department of HUD, 171 U.S.App.D.C. 286, 293-294, 519 F.2d 935, 942-943 (1975).
57
There is also a procedural defect in the OFCCP disclosure regulations which precludes courts from affording them the force and effect of law. That defect is a lack of strict compliance with the APA. Recently we have had occasion to examine the requirements of the APA in the context of "legislative" or "substantive" rulemaking. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), we held that courts could only in "extraordinary circumstances" impose procedural requirements on an agency beyond those specified in the APA. It is within an agency's discretion to afford parties more procedure, but it is not the province of the courts to do so. In Vermont Yankee, we recognized that the APA is " 'a formula upon which opposing social and political forces have come to rest.' " Id., at 547, 98 S.Ct., at 1213 (quoting Wong Yang Sung v. McGrath, 339 U.S. 33, 40, 70 S.Ct. 445, 449, 94 L.Ed. 616 (1950)). Courts upset that balance when they override informed choice of procedures and impose obligations not required by the APA. By the same token, courts are charged with maintaining the balance: ensuring that agencies comply with the "outline of minimum essential rights and procedures" set out in the APA. H.R.Rep. No. 1980, 79th Cong., 2d Sess., 16 (1946); see Vermont Yankee Nuclear Power Corp., supra, at 549 n. 21, 98 S.Ct., at 1214 n. 21. Certainly regulations subject to the APA cannot be afforded the "force and effect of law" if not promulgated pursuant to the statutory procedural minimum found in that Act.43
58
Section 4 of the APA, 5 U.S.C. § 553, specifies that an agency shall afford interested persons general notice of proposed rulemaking and an opportunity to comment before a substantive rule is promulgated.44 "interpretative rules, general statements of policy or rules of agency organization, procedure or practice" are exempt from these requirements. When the Secretary of Labor published the regulations pertinent in this case, he stated:
59
"As the changes made by this document relate solely to interpretive rules, general statements of policy, and to rules of agency procedure and practice, neither notice of proposed rule making nor public participation therein is required by 5 U.S.C. 553. Since the changes made by this document either relieve restrictions or are interpretative rules, no delay in effective date is required by 5 U.S.C. 553(d). These rules shall therefore be effective immediately.
60
"In accordance with the spirit of the public policy set forth in 5 U.S.C. 553, interested persons may submit written comments, suggestions, data, or arguments to the Director, Office of Federal Contract Compliance . . .." 38 Fed.Reg. 3193 (1973).
61
Thus, the regulations were essentially treated as interpretative rules and interested parties were not afforded the notice of proposed rulemaking required for substantive rules under 5 U.S.C. § 553(b). As we observed in Batterton v. Francis, 432 U.S., at 425 n. 9, 97 S.Ct., at 2405: "[A] court is not required to give effect to an interpretative regulation. Varying degrees of deference are accorded to administrative interpretations, based on such factors as the timing and consistency of the agency's position, and the nature of its expertise." We need not decide whether these regulations are properly characterized as "interpretative rules." It is enough that such regulations are not properly promulgated as substantive rules, and therefore not the product of procedures which Congress prescribed as necessary prerequisites to giving a regulation the binding effect of law.45 An interpretative regulation or general statement of agency policy cannot be the "authoriz[ation] by law" required by § 1905.
62
This disposition best comports with both the purposes underlying the APA and sound administrative practice. Here important interests are in conflict: the public's access to information in the Government's files and concerns about personal privacy and business confidentiality. The OFCCP's regulations attempt to strike a balance. In enacting the APA, Congress made a judgment that notions of fairness and informed administrative decisionmaking require that agency decisions be made only after affording interested persons notice and an opportunity to comment. With the consideration that is the necessary and intended consequence of such procedures, OFCCP might have decided that a different accommodation was more appropriate.
B
63
We reject, however, Chrysler's contention that the Trade Secrets Act affords a private right of action to enjoin disclosure in violation of the statute. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), we noted that this Court has rarely implied a private right of action under a criminal statute, and where it has done so "there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone."46 Nothing in § 1905 prompts such an inference. Nor are other pertinent circumstances outlined in Cort present here. As our review of the legislative history of § 1905—or lack of same—might suggest, there is no indication of legislative intent to create a private right of action. Most importantly, a private right of action under § 1905 is not "necessary to make effective the congressional purpose," J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964), for we find that review of DLA's decision to disclose Chrysler's employment data is available under the APA.47
IV
64
While Chrysler may not avail itself of any violations of the provisions of § 1905 in a separate cause of action, any such violations may have a dispositive effect on the outcome of judicial review of agency action pursuant to § 10 of the APA. Section 10(a) of the APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . ., is entitled to judicial review thereof." 5 U.S.C. § 702. Two exceptions to this general rule of reviewability are set out in § 10. Review is not available where "statutes preclude judicial review" or where "agency action is committed to agency discretion by law." 5 U.S.C. §§ 701(a)(1), (2). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 21 L.Ed.2d 136 (1971), the Court held that the latter exception applies "where 'statutes are drawn in such broad terms that in a given case there is no law to apply,' " quoting S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945). Were we simply confronted with the authorization in 5 U.S.C. § 301 to prescribe regulations regarding "the custody, use, and preservation of [agency] records, papers, and property," it would be difficult to derive any standards limiting agency conduct which might constitute "law to apply." But our discussion in Part III demonstrates that § 1905 and any "authoriz[ation] by law" contemplated by that section place substantive limits on agency action.48 Therefore, we conclude that DLA's decision to disclose the Chrysler reports is reviewable agency action and Chrysler is a person "adversely affected or aggrieved" within the meaning of § 10(a).
65
Both Chrysler and the respondents agree that there is APA review of DLA's decision. They disagree on the proper scope of review. Chrysler argues that there should be de novo review, while the respondents contend that such review is only available in extraordinary cases and this is not such a case.
66
The pertinent provisions of § 10(e) of the APA 5 U.S.C. § 706, state that a reviewing court shall
67
"(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
68
"(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
69
* * * * *
70
"(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court."
71
For the reasons previously stated, we believe any disclosure that violates § 1905 is "not in accordance with law" within the meaning of 5 U.S.C. § 706(2)(A). De novo review by the District Court is ordinarily not necessary to decide whether a contemplated disclosure runs afoul of § 1905. The District Court in this case concluded that disclosure of some of Chrysler's documents was barred by § 1905, but the Court of Appeals did not reach the issue. We shall therefore vacate the Court of Appeals' judgment and remand for further proceedings consistent with this opinion in order that the Court of Appeals may consider whether the contemplated disclosures would violate the prohibition of § 1905.49 Since the decision regarding this substantive issue—the scope of § 1905—will necessarily have some effect on the proper form of judicial review pursuant to § 706(2), we think it unnecessary, and therefore unwise, at the present stage of this case for us to express any additional views on that issue.
72
Vacated and remanded.
73
Mr. Justice MARSHALL, concurring.
74
I agree that respondents' proposed disclosure of information is not "authorized by law" within the meaning of 18 U.S.C. § 1905, and I therefore join the opinion of the Court. Because the number and complexity of the issues presented by this case will inevitably tend to obscure the dispositive conclusions, I wish to emphasize the essential basis for the decision today.
75
This case does not require us to determine whether, absent a congressional directive, federal agencies may reveal information obtained during the exercise of their functions. For whatever inherent power an agency has in this regard, § 1905 forbids agencies from divulging certain types of information unless disclosure is independently "authorized by law." Thus, the controlling issue in this case is whether the OFCCP disclosure regulations, 41 CFR §§ 60.40-1 to 60.40-4 (1978), provide the requisite degree of authorization for the agency's proposed release. The Court holds that they do not, because the regulations are not sanctioned directly or indirectly by federal legislation.1 In imposing the authorization requirement of § 1905, Congress obviously meant to allow only those disclosures contemplated by congressional action. Ante, at 298-312. Otherwise, the agencies Congress intended to control could create their own exceptions to § 1905 simply by promulgating valid disclosure regulations. Finally, the Court holds that since § 10(e) of the Administrative Procedure Act requires agency action to be "in accordance with law," 5 U.S.C. § 706(2)(A), a reviewing court can prevent any disclosure that would violate § 1905.2
76
Our conclusion that disclosure pursuant to the OFCCP regulations is not "authorized by law" for purposes of § 1905, however, does not mean the regulations themselves are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right" for purposes of the Administrative Procedure Act. 5 U.S.C. § 706(2)(C). As the Court recognizes, ante, at 309 n. 40, that inquiry involves very different considerations than those presented in the instant case. Accordingly, we do not question the general validity of these OFCCP regulations or any other regulations promulgated under § 201 of Executive Order No. 11246, 3 CFR 340 (1964-1965 Comp.). Nor do we consider whether such an Executive Order must be founded on a legislative enactment. The Court's holding is only that the OFCCP regulations in issue here do not "authorize" disclosure within the meaning of § 1905.
77
Based on this understanding, I join the opinion of the Court.
1
Executive Order No. 11246, 3 CFR 339 (1964-1965 Comp.), prohibits discrimination on the basis of "race, creed, color, or national origin" in federal employment or by Government contractors. Under § 202 of this Executive Order, most Government contracts must contain a provision whereby the contractor agrees not to discriminate in such a fashion and to take affirmative action to ensure equal employment opportunity. With promulgation of Executive Order No. 11375, 3 CFR 684 (1966-1970 Comp.), in 1967, President Johnson extended the requirements of the 1965 Order to prohibit discrimination on the basis of sex.
2
41 CFR §§ 60-1.3, 60-1.7 (1978).
3
For convenience all references will be to DLA.
4
41 CFR §§ 60-1.20, 60-1.24 (1978). The term "alphabet soup" gained currency in the early days of the New Deal as a description of the proliferation of new agencies such as WPA and PWA. The terminology required to describe the present controversy suggests that the "alphabet soup" of the New Deal era was, by comparison, a clear broth.
5
§ 60-40.2(a). The regulations also state that EEO-1 Reports "shall be disclosed," § 60-40.4, and that AAP's "must be disclosed" if not within limited exceptions. §§ 60-40.2(b)(1), 60-40.3.
6
Manning tables are lists of job titles and of the number of people who perform each job.
7
Compare Westinghouse Electric Corp. v. Schlesinger, 542 F.2d 1190 (CA4 1976), cert. denied, 431 U.S. 924, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977), with Sears, Roebuck & Co. v. Eckerd, 575 F.2d 1197 (CA7 1978); General Dynamics Corp. v. Marshall, 572 F.2d 1211 (CA8 1978); Pennzoil Co. v. FPC, 534 F.2d 627 (CA5 1976); Charles River Park "A," Inc. v. Department of HUD, 171 U.S.App.D.C. 286, 519 F.2d 935 (1975).
8
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975); Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974); EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).
9
"Subsection (b) of the Act creates nine exemptions from compelled disclosures. These exemptions are explicitly made exclusive, 5 U.S.C. § 552(c), and are plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed." EPA v. Mink, supra, at 79, 93 S.Ct., at 832, (emphasis added).
10
We observed in Department of Air Force v. Rose, supra, at 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11, that "disclosure, not secrecy, is the dominant objective of the Act." The legislative history is replete with references to Congress' desire to loosen the agency's grip on the data underlying governmental decisionmaking.
"A democratic society requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity and quality of its information varies. . . .
"[The FOIA] provides the necessary machinery to assure the availability of Government information necessary to an informed electorate." H.R.Rep. No. 1497, 89th Cong., 2d Sess., 12 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2429.
"Although the theory of an informed electorate is vital to the proper operation of a democracy, there is nowhere in our present law a statute which affirmatively provides for that information." S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965).
11
See, e. g., H.R.Rep. No. 1497, supra, at 10 (emphasis added; footnote omitted):
"[Exemption 4] would assure the confidentiality of information obtained by the Government through questionnaires or through material submitted and disclosures made in procedures such as the mediation of labor-management controversies. It exempts such material if it would not customarily be made public by the person from whom it was obtained by the Government. . . . It would . . . include information which is given to an agency in confidence, since a citizen must be able to confide in his Government. Moreover, where the Government has obligated itself in good faith not to disclose documents or information which it receives, it should be able to honor such obligations."
The italicized passage is obviously consistent with Exemption 4's being an exception to the disclosure mandate of the FOIA and not a limitation on agency discretion.
12
See S.Rep. No. 813, supra, at 3:
"It is not an easy task to balance the opposing interests, but it is not an impossible one either. It is not necessary to conclude that to protect one of the interests, the other must, of necessity, either be abrogated or substantially subordinated. Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure."
13
Id., at 9; n. 11, supra.
14
It is informative in this regard to compare the FOIA with the Privacy Act of 1974, 5 U.S.C. § 552a. In the latter Act, Congress explicitly requires agencies to withhold records about an individual from most third parties unless the subject gives his permission. Even more telling is 49 U.S.C. § 1357, a section which authorizes the Administrator of the FAA to take antihijacking measures, including research and development of protection devices.
"Notwithstanding [the FOIA], the Administrator shall prescribe such regulations as he may deem necessary to prohibit disclosure of any information obtained or developed in the conduct of research and development activities under this subsection if, in the opinion of the Administrator, the disclosure of such information—
* * * * *
"(B) would reveal trade secrets or privileged or confidential commercial or financial information obtained from any person . . .." § 1357(d)(2)(B)."
15
Section 3 of the original APA provided that an agency should generally publish or make available organizational data, general statements of policy, rules, and final orders. Exception was made for matters "requiring secrecy in the public interest" or "relating solely to the internal management of an agency." This original version of § 3 was repealed with passage of the FOIA. See EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).
16
H.R.Rep. No. 1497, 89th Cong., 2d Sess., 2, 5, 7 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2419, 2423-2424 (emphasis added). See also S.Rep. No. 813, 89th Cong., 1st Sess., 10 (1965). Congressman Moss, the House sponsor of the FOIA, described the exemptions on the House floor as indicating what documents "may be withheld." 112 Cong.Rec. 13641 (1966).
17
41 CFR §§ 60.40-1 to 60.40-4 (1978).
18
E. g., Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977); Foti v. INS, 375 U.S. 217, 223, 84 S.Ct. 306, 310, 11 L.Ed.2d 281 (1963); United States v. Mersky, 361 U.S. 431, 437-438, 80 S.Ct. 459, 463, 4 L.Ed.2d 423 (1960); Atchison, T. & S. F. R. Co. v. Scarlett, 300 U.S. 471, 474, 57 S.Ct. 541, 543, 81 L.Ed. 1375 (1937).
19
Paul v. United States, 371 U.S. 245, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963); Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962); Public Utilities Comm'n of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958).
20
Revenue Act of 1864, § 38, 13 Stat. 238.
21
The last version was codified as 18 U.S.C. § 216 (1940 ed.):
"It shall be unlawful for any collector, deputy collector, agent, clerk, or other officer or employee of the United States to divulge or to make known in any manner whatever not provided by law to any person the operations, style of work, or apparatus of any manufacturer or producer visited by him in the discharge of his official duties, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any income return, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; and it shall be unlawful for any person to print or publish in any manner whatever not provided by law any income return, or any part thereof or source of income, profits, losses, or expenditures appearing in any income return; and any offense against the foregoing provision shall be a misdemeanor and be punished by a fine not exceeding $1,000 or by imprisonment not exceeding one year, or both, at the discretion of the court; and if the offender be an officer or employee of the United States he shall be dismissed from office or discharged from employment."
22
See, e. g., 26 Cong.Rec. 6893 (1894) (Sen. Aldrich) (expressing concern that taxpayer's confidential information is "to be turned over to the tender mercies of poorly paid revenue agents"); id., at 6924 (Sen. Teller) (exposing records to the "idle curiosity of a revenue officer"). See also Cong.Globe, 38th Cong., 1st Sess., 2997 (1864) (Rep. Brown) (expressing concern that 1864 revenue provisions would allow "every little petty officer" to investigate the affairs of private citizens).
23
There was virtually no Washington bureaucracy created by the Act of July 1, 1862, ch. 119, 12 Stat. 432, the statute to which the present Internal Revenue Service can be traced. Researchers report that during the Civil War 85% of the operations of the Bureau of Internal Revenue were carried out in the field "including the assessing and collection of taxes, the handling of appeals, and punishment for frauds"—and this balance of responsibility was not generally upset until the 20th century. L. Schmeckebier & F. Eble, The Bureau of Internal Revenue 8, 40-43 (1923). Agents had the power to enter any home or business establishment to look for taxable property and examine books of accounts. Information was collected and processed in the field. It is, therefore, not surprising to find that congressional comments during this period focused on potential abuses by agents in the field and not on breaches of confidentiality by a Washington-based bureaucracy.
24
See H.R.Rep. No. 304, 80th Cong., 1st Sess., A127-A128 (1947).
25
The Tariff Commission statute, last codified as 19 U.S.C. § 1335 (1940 ed.), provided:
"It shall be unlawful for any member of the commission, or for any employee, agent, or clerk of the commission, or any other officer or employee of the United States, to divulge, or to make known in any manner whatever not provided for by law, to any person, the trade secrets or processes of any person, firm, copartnership, corporation, or association embraced in any examination or investigation conducted by the commission, or by order of the commission, or by order of any member thereof. Any offense against the provisions of this section shall be a misdemeanor and be punished by a fine not exceeding $1,000, or by imprisonment not exceeding one year, or both, in the discretion of the court, and such offender shall also be dismissed from office or discharged from employment."
26
15 U.S.C. § 176a (1940 ed.):
"Any statistical information furnished in confidence to the Bureau of Foreign and Domestic Commerce by individuals, corporations, and firms shall be held to be confidential, and shall be used only for the statistical purposes for which it is supplied. The Director of the Bureau of Foreign and Domestic Commerce shall not permit anyone other than the sworn employees of the Bureau to examine such individual reports, nor shall he permit any statistics of domestic commerce to be published in such manner as to reveal the identity of the individual, corporation, or firm furnishing such data."
27
H.R.Rep. No. 304, supra n. 24, at A127.
28
In a December 1, 1953, opinion, the Attorney General advised the Secretary of the Treasury that he should regard himself as bound by § 1905. The Attorney General noted:
"The reviser of the Criminal Code describes the provision as a consolidation of three other sections formerly appearing in the United States Code. Of the three, two expressly operated as prohibitions on the heads of agencies." 41 Op.Atty.Gen. 166, 167 (footnote omitted).
See also id., at 221 (Atty. Gen. Brownell advising Federal Communications Commission Chairman to regard himself as bound).
29
If we accepted the respondents' position, 18 U.S.C. § 1905 would simply be irrelevant to the issue of public access to agency information. The FOIA and other such "access" legislation are concerned with formal agency action—to what extent can an agency or department or, put differently, the head of an agency or department withhold information contained within the governmental unit's files. It is all but inconceivable that a Government employee would withhold information which his superiors had directed him to release; and these Acts are simply not addressed to disclosure by a Government employee that is not sanctioned by the employing agency. This is not to say that the actions of individual employees might not be inconsistent with the access legislation. But such actions are only inconsistent insofar as they are imputed to the agencies themselves. Therefore, if § 1905 is not addressed to formal agency action—i. e., action approved by the agency or department head—there should have been no concern in Congress regarding the interrelationship of § 1905 and the access legislation, for they would then address totally different types of disclosure.
In fact, the legislative history of all the significant access legislation of the last 20 years evinces a concern with this relationship and a
concomitant universal assumption that § 1905 embraces formal agency action. Congress was assured that the 1958 amendment to 5 U.S.C. § 301, the housekeeping statute that affords department heads custodial responsibility for department records, would not circumscribe the confidentiality mandated by § 1905. The 1958 amendment simply clarified that § 301 itself was not substantive authority to withhold information. See infra, at 310-312. Also in 1958 the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary conducted hearings on the power of the President to withhold information from Congress. As part of the investigative effort, a list was compiled of all statutes restricting disclosure of Government information. Section 1905 was listed among them. Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary on S. 921, 85th Cong., 2d Sess., pt. 2, p. 986 (1958). Two years later, the House Committee on Government Operations conducted a study on statutory authorities restricting or requiring the release of information under the control of executive departments or independent agencies, and again prominent among the statutes "affecting the availability of information to the public" was 18 U.S.C. § 1905. House Committee on Government Operations, Federal Statutes on the Availability of Information 262 (Comm. Print Mar. 1960) (§ 1905 denominated as statute prohibiting the disclosure of certain information).
In FAA Administrator v. Robertson, 422 U.S., at 264-265, 95 S.Ct., at 2146-2147, we recognized the importance of these lists in Congress' later deliberations concerning the FOIA, particularly in the consideration of the original Exemption 3. That Exemption excepted from the operation of the FOIA matters "specifically exempted from disclosure by statute." As we noted in Robertson:
"When the House Committee on Government Operations focused on Exemption 3, it took note that there are 'nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These would not be modified by the public records provisions of [the FOIA].' H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). (Emphasis added.)" Id., at 265, 95 S.Ct. at 2147.
In determining that the statute at issue in Robertson, 49 U.S.C. § 1504, was within Exemption 3, we observed that the statute was on these prior lists and that the Civil Aeronautics Board had brought the statute to the attention of both the House and Senate Committees as an exempting statute during the hearings on the FOIA. 422 U.S., at 264, 95 S.Ct., at 2146 and n. 11. In
fact, during those hearings 18 U.S.C. § 1905 was the most frequently cited restriction on agency or department disclosure of information. Hearings before the Subcommittee of the House Committee on Government Operations, on H.R. 5012 et al., 89th Cong., 1st Sess., 283 (1965) (cited by 28 agencies as authority for withholding information). Among those citing the statute was the Department of Justice. Id., at 386 ("commercial information received or assembled in connection with departmental functions must be withheld pursuant to these requirements"). See also id., at 20 (colloquy between Rep. Moss and Asst. Atty. Gen. Schlei); Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 31-32 (June 1967) (18 U.S.C. § 1905 among the "nearly 100 statutes" mentioned in the House Report).
Most recently, in its Report on the Government in the Sunshine Act, the House Committee on Government Operations observed:
"[T]he Trade Secrets Act, 18 U.S.C. § 1905, which relates only to the disclosure of information where disclosure is 'not authorized by law,' would not permit the withholding of information otherwise required to be disclosed by the Freedom of Information Act, since the disclosure is there authorized by law. Thus, for example, if material did not come within the broad trade secrets exemption contained in the Freedom of Information Act, section 1905 would not justify withholding; on the other hand, if material is within the trade secrets exemption of the Freedom of Information Act and therefore subject to disclosure if the agency determines that disclosure is in the public interest, section 1905 must be considered to ascertain whether the agency is forbidden from disclosing the information." H.R.Rep. No. 94-880, pt. 1, p. 23 (1976), U.S.Code Cong. & Admin.News 1976, pp. 2183, 2205.
30
5 U.S.C. §§ 553(b), (d).
31
Neither the House nor Senate Report attempted to expound on the distinction. In prior cases, we have given some weight to the Attorney General's Manual on the Administrative Procedure Act (1947), since the Justice Department was heavily involved in the legislative process that resulted in the Act's enactment in 1946. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 546, 98 S.Ct. 1197, 1213, 55 L.Ed.2d 460 (1978); 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).
The Manual refers to substantive rules as rules that "implement" the statute. "Such rules have the force and effect of law." Manual, supra, at 30 n. 3. In contrast it suggests that "interpretive rules" and "general statements of policy" do not have the force and effect of law. Interpretive rules are "issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers." Ibid. General statements of policy are "statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power." Ibid. See also Final Report of Attorney General's Committee on Administrative Procedure 27 (1941).
32
Quoting Attorney General's Manual on the Administrative Procedure Act, supra, at 30 n. 3.
33
See, e. g., Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); Hearings before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary on the Philadelphia Plan and S. 931, 91st Cong., 1st Sess. (1969); Jones, The Bugaboo of Employment Quotas, 1970 Wis.L.Rev. 341; Leiken, Preferential Treatment in the Skilled Building Trades: An Analysis of the Philadelphia Plan, 56 Cornell L.Rev. 84 (1970); Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U.Chi.L.Rev. 723 (1972); Note, Executive Order 11246: Anti-Discrimination Obligations in Government Contracts, 44 N.Y.U.L.Rev. 590 (1969).
The Executive Order itself merely states that it is promulgated "[u]nder and by virtue of the authority vested in [the] President of the United States by the Constitution and statutes of the United States." 3 CFR 339 (1964-1965 Comp.).
34
63 Stat. 377, as amended, 40 U.S.C. § 471 et seq. The Act as amended is prefaced with the following declaration of policy:
"It is the intent of the Congress in enacting this legislation to provide for the Government an economical and efficient system for (a) the procurement and supply of personal property and nonpersonal services, including related functions such as contracting, inspection, storage, issue, specifications, property identification and classification, transportation and traffic management, establishment of pools or systems for transportation of Government personnel and property by motor vehicle within specific areas, management of public utility services, repairing and converting, establishment of inventory levels, establishment of forms and procedures, and representation before Federal and State regulatory bodies; (b) the utilization of available property; (c) the disposal of surplus property; and (d) records management." 40 U.S.C. § 471.
The Act explicitly authorizes Executive Orders "necessary to effectuate [its] provisions." § 486(a). However, nowhere in the Act is there a specific reference to employment discrimination.
Lower courts have suggested that § 486(a) was the authority for predecessors of Executive Order 11246. Farmer v. Philadelphia Electric Co., 329 F.2d 3 (CA3 1964); Farkas v. Texas Instrument, Inc., 375 F.2d 629 (CA5),
cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (1967). But as the Third Circuit noted in Contractors Assn. of Eastern Pa. v. Secretary of Labor, supra, 442 F.2d, at 167, these suggestions were dicta and made without any analysis of the nexus between the Federal Property and Administrative Services Act and the Executive Orders. It went on to hold, however, that § 486(a) was authority for at least some aspects of Executive Order 11246 on the ground that "it is in the interest of the United States in all procurement to see that its suppliers are not over the long run increasing its costs and delaying its programs by excluding from the labor pool available minority workmen." 442 F.2d at 170.
35
42 U.S.C. §§ 2000d to 2000d-4, 2000e to 2000e-17. Significantly, the question has usually been put in terms of whether Executive Order 11246 is inconsistent with these titles of the Civil Rights Act of 1964. See, e. g., Contractors Assn. of Eastern Pa. v. Secretary of Labor, supra, 442 F.2d, at 171-174.
Title VI grants federal agencies that are "empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract," the authority to promulgate rules "which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken." Such rules must be approved by the President, and their enforcement is subject to congressional review. "In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action." § 602 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d-1. Executive Order 11246 contains no provision for congressional review, and therefore is not promulgated pursuant to § 602. Cf. Exec.Order No. 11247, 3 CFR 348 (1964-1965 Comp.). Titles VI and VII contain no other express substantive delegation to the President.
36
This is an argument that Congress ratified Executive Order 11246 as amended, when it rejected a series of amendments to the Equal Employment Opportunity Act that were designed to cut back on affirmative-action efforts under the Executive Order.
37
See Farkas v. Texas Instrument, Inc., supra; Farmer v. Philadelphia Electric Co., supra; cf. Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (1952) (Jackson, J., concurring).
38
The respondents cite Jones v. Rath Packing Co., 430 U.S. 519, 536, 97 S.Ct. 1305, 1314, 51 L.Ed.2d 604 (1977), for the proposition that "it has long been acknowledged that administrative regulations consistent with the agencies' substantive statutes have the force and effect of law." Brief for Respondents 38, and n. 24. The legislative delegation in that case, however, was quite explicit. The issue was whether state regulation of the labeling of meats and flour was pre-empted by the Federal Meat Inspection Act (FMIA), the Federal Food, Drug, and Cosmetic Act (FDCA), and the Fair Packaging and Labeling Act. The FMIA provides that meat or a meat product is misbranded
"(5) if in a package or other container unless it bears a label showing . . . (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That . . . reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations prescribed by the Secretary." § 1(n)(5), 21 U.S.C. § 601(n)(5).
There is a similar provision in the FDCA.
39
See H.R.Rep. No. 1461, 85th Cong., 2d Sess., 1 (1958):
"The law has been called an office 'housekeeping' statute, enacted to help General Washington get his administration underway by spelling out the authority for executive officials to set up offices and file Government documents. The documents involved are papers pertaining to the day-to-day business of Government which are not restricted under other specific laws nor classified as military information or secrets of state."
The Secretary of Labor did not cite this statute as authority for the OFCCP disclosure regulations. 38 Fed.Reg. 3192-3193 (1973).
40
This does not mean, of course, that disclosure regulations promulgated on the basis of § 301 are "in excess of statutory jurisdiction, authority, or limitations" for purposes of § 10(e)(B)(3) of the APA, 5 U.S.C. § 706(2)(C). It simply means that disclosure pursuant to them is not "authorized by law" within the meaning of § 1905.
41
The House Committee on Government Operations cited approvingly an observation by legal experts that
"[§ 301] merely gives department heads authority to regulate within their departments the way in which requests for information are to be dealt with—for example, by centralizing the authority to deal with such requests in the department head." H.R.Rep. No. 1461, 85th Cong., 2d Sess., 7 (1958).
It noted that the members of its Special Subcommittee on Government Information
"unanimously agreed that [§ 301] originally was adopted in 1789 to provide for the day-to-day office housekeeping in the Government departments, but through misuse it has become twisted into a claim of authority to withhold information." Id., at 12.
There are numerous remarks to similar effect in the Senate Report and the floor debates. See, e. g., S.Rep. No. 1621, 85th Cong., 2d Sess., 2 (1958); 104 Cong.Rec. 6549 (Rep. Moss), 6560 (Rep. Fascell), 15690-15696 (colloquy between Sens. Hruska and Johnston) (1958).
42
Throughout the floor debates references are made to 78 statutes that require the withholding of information, and assurances are consistently given that these statutes are not in any way affected by § 301. E. g., 104 Cong.Rec. 6548 (Rep. Brown), 6549-6550 (Rep. Moss) (1958). It is clear from Congressman Moss' comments that § 1905 is one of those statutes. 104 Cong.Rec. 6549-6550 (1958). There is also frequent reference to trade secrets as not being disclosable and the confidentiality of that information as not being affected by § 301. H.R.Rep. No. 1461, 85th Cong., 2d Sess., 2 (1958); 104 Cong.Rec. 6558 (Rep. Fascell), 6564 (Rep. Wright) (1958). The following exchange between Congressmen Meader and Moss is also instructive.
"Mr. MEADER. Mr. Chairman, I should like the attention of the gentleman from California [Mr. Moss], the sponsor of the measure. I would like to read three paragraphs from the additional views I submitted to the report which appear upon page 62 of the report. I said:
"I believe there is unanimous sentiment in the Government Operations Committee on the following points:
"1. That departments and agencies of the Government have construed [§ 301] to authorize them to withhold information from the public and to limit the availability of records to the public.
"2. That this interpretation is a strained and erroneous interpretation of the intent of Congress in [§ 301] which merely authorized department heads to make regulations governing day-to-day operation of the department—a so-called housekeeping function; and that [§ 301] was not intended to deal with the authority to release or withhold information or records.
* * * * *
"I now yield to the gentleman from California to state whether or not those three points as I have set them forth in my additional views in the report on this measure accurately state what he understands to be the consensus of the judgment of the members of the Government Operations Committee in reporting out this legislation?
"Mr. MOSS. That is correct as I interpret it." Id., at 6562 (emphasis added).
43
See, e. g., Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 758, 92 S.Ct. 1941, 1951, 32 L.Ed.2d 453 (1972).
44
5 U.S.C. § 553:
"(a) This section applies, according to the provisions thereof, except to the extent that there is involved—
"(1) a military or foreign affairs function of the United States; or
"(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.
"(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—
"(1) a statement of the time, place, and nature of public rule making proceedings;
"(2) reference to the legal authority under which the rule is proposed; and
"(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.
"Except when notice or hearing is required by statute, this subsection does not apply—
"(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
"(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
"(c) After notice required by this section, 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. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
"(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except—
"(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;
"(2) interpretative rules and statements of policy; or
"(3) as otherwise provided by the agency for good cause found and published with the rule.
"(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule."
45
The regulations at issue in Jones v. Rath Packing Co., see n. 38, supra, were the product of notice of proposed rulemaking and comment. 32 Fed.Reg. 10729 (1967); 35 Fed.Reg. 15552 (1970).
We also note that the respondents' reliance on FCC v. Schreiber, 381 U.S. 279, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965), is misplaced. In that case the Court held that a FCC rule—that investigatory proceedings would be public unless a hearing examiner found that "the public interest, the proper dispatch of the business . . ., or the ends of justice" would be served by closed sessions—was consistent with the pertinent congressional grant of authority and not arbitrary or unreasonable. This Court held that the District Court impermissibly invaded the province of the agency when it imposed its own notions of proper procedures. Cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). There was no question in the case regarding the applicability of § 1905. Moreover, the respondents had made a broad request that "all testimony and documents to be elicited from them . . . should be received in camera." 381 U.S., at 295, 85 S.Ct., at 1470 (emphasis in original). The Court held that when specific information was requested that might actually injure Schreiber's firm competitively, "there would be ample opportunity to request that it be received in confidence, and to seek judicial protection if the request were denied." Id., at 296, 85 S.Ct., at 1470.
46
422 U.S., at 79, 95 S.Ct., at 2088, citing Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 (1916).
47
Jurisdiction to review agency action under the APA is found in 28 U.S.C. § 1331. See Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
Chrysler does not argue in this Court, as it did below, that private rights of action are available under 42 U.S.C. § 2000e-8(e) and 44 U.S.C. § 3508.
48
By regulation, the Secretary of Labor also has imposed the standards of § 1905 on OFCCP and its compliance agencies. 29 CFR § 70.21 (1978).
49
Since the Court of Appeals assumed for purposes of argument that the material in question was within an exemption to the FOIA, that court found it unnecessary expressly to decide that issue and it is open on remand. We, of course, do not here attempt to determine the relative ambits of Exemption 4 and § 1905, or to determine whether § 1905 is an exempting statute within the terms of the amended Exemption 3, 5 U.S.C. § 552(b)(3). Although there is a theoretical possibility that material might be outside Exemption 4 yet within the substantive provisions of § 1905, and that therefore the FOIA might provide the necessary "authoriz[ation] by law" for purposes of § 1905, that possibility is at most of limited practical significance in view of the similarity of language between Exemption 4 and the substantive provisions of § 1905.
1
That the OFCCP regulations were not promulgated in strict compliance with the Administrative Procedure Act, ante, at 312-316, is an independent reason why those regulations do not satisfy the requirements of § 1905, although the agency could rectify this shortcoming.
2
Thus, the courts below must determine on remand whether § 1905 covers the types of information respondents intended to disclose. Disclosure of those documents not covered by § 1905 would, under the Court's holding, be "in accordance with law." 5 U.S.C. § 706(2)(A).
| 45
|
441 U.S. 369
99 S.Ct. 1755
60 L.Ed.2d 286
State of NORTH CAROLINA, Petitioner,v.Willie Thomas BUTLER.
No. 78-354.
Argued March 27, 1979.
Decided April 24, 1979.
Syllabus
Respondent, while under arrest for certain crimes and after being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, made incriminating statements to the arresting officers. His motion to suppress evidence of these statements on the ground that he had not waived his right to assistance of counsel at the time the statements were made was denied by a North Carolina trial court, and he was subsequently convicted. The North Carolina Supreme Court reversed, holding that Miranda requires that no statement of a person under custodial interrogation may be admitted in evidence against him unless, at the time the statement was made, he explicitly waived the right to the presence of a lawyer.
Held: An explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to counsel guaranteed by the Miranda case. The question of waiver must be determined on the particular facts and circumstances surrounding the case, and there is no reason in a case such as this for a per se rule, such as that of the North Carolina Supreme Court. By creating an inflexible rule that no implicit waiver can ever suffice, that court has gone beyond the requirements of federal organic law, and thus its judgment cannot stand, since a state court can neither add to nor subtract from the mandates of the United States Constitution. Pp. 372-376.
295 N.C. 250, 244 S.E.2d 410, vacated and remanded.
Lester V. Chalmers, Jr., Raleigh, N.C., for petitioner.
R. Gene Braswell, Goldsboro, N.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In evident conflict with the present view of every other court that has considered the issue, the North Carolina Supreme Court has held that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, requires that no statement of a person under custodial interrogation may be admitted in evidence against him unless, at the time the statement was made, he explicitly waived the right to the presence of a lawyer. We granted certiorari to consider whether this per se rule reflects a proper understanding of the Miranda decision. 439 U.S. 1046, 99 S.Ct. 720, 58 L.Ed.2d 704.
2
The respondent was convicted in a North Carolina trial court of kidnaping, armed robbery, and felonious assault. The evidence at his trial showed that he and a man named Elmer Lee had robbed a gas station in Goldsboro, N. C., in December 1976, and had shot the station attendant as he was attempting to escape. The attendant was paralyzed, but survived to testify against the respondent.
3
The prosecution also produced evidence of incriminating statements made by the respondent shortly after his arrest by Federal Bureau of Investigation agents in the Bronx, N. Y., on the basis of a North Carolina fugitive warrant. Outside the presence of the jury, FBI Agent Martinez testified that at the time of the arrest he fully advised the respondent of the rights delineated in the Miranda case. According to the uncontroverted testimony of Martinez, the agents then took the respondent to the FBI office in nearby New Rochelle, N. Y. There, after the agents determined that the respondent had an 11th grade education and was literate, he was given the Bureau's "Advice of Rights" form which he read.1 When asked if he understood his rights, he replied that he did. The respondent refused to sign the waiver at the bottom of the form. He was told that he need neither speak nor sign the form, but that the agents would like him to talk to them. The respondent replied: "I will talk to you but I am not signing any form." He then made inculpatory statements.2 Agent Martinez testified that the respondent said nothing when advised of his right to the assistance of a lawyer. At no time did the respondent request counsel or attempt to terminate the agents' questioning.
4
At the conclusion of this testimony the respondent moved to suppress the evidence of his incriminating statements on the ground that he had not waived his right to the assistance of counsel at the time the statements were made. The court denied the motion, finding that
5
"the statement made by the defendant, William Thomas Butler, to Agent David C. Martinez, was made freely and voluntarily to said agent after having been advised of his rights as required by the Miranda ruling, including his right to an attorney being present at the time of the inquiry and that the defendant, Butler, understood his rights; [and] that he effectively waived his rights, including the right to have an attorney present during the questioning by his indication that he was willing to answer questions, having read the rights form together with the Waiver of Rights . . . ." App. A-22 to A-23.
6
The respondent's statements were then admitted into evidence, and the jury ultimately found the respondent guilty of each offense charged.
7
On appeal, the North Carolina Supreme Court reversed the convictions and ordered a new trial. It found that the statements had been admitted in violation of the requirements of the Miranda decision, noting that the respondent had refused to waive in writing his right to have counsel present and that there had not been a specific oral waiver. As it had in at least two earlier cases, the court read the Miranda opinion as
8
"provid[ing] in plain language that waiver of the right to counsel during interrogation will not be recognized unless such waiver is 'specifically made' after the Miranda warnings have been given." 295 N.C. 250, 255, 244 S.E.2d 410, 413 (1978).
9
See State v. Blackmon, 280 N.C. 42, 49-50, 185 S.E.2d 123, 127-128 (1971); State v. Thacker, 281 N.C. 447, 453-454, 189 S.E.2d 145, 149-150 (1972).3
10
We conclude that the North Carolina Supreme Court erred in its reading of the Miranda opinion. There, this Court said:
11
"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." 384 U.S., at 475, 86 S.Ct., at 1628.
The Court's opinion went on to say:
12
"An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." Ibid.
13
Thus, the Court held that an express statement can constitute a waiver, and that silence alone after such warnings cannot do so. But the Court did not hold that such an express statement is indispensable to a finding of waiver.
14
An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.4
15
The Court's opinion in Miranda explained the reasons for the prophylactic rules it created:
16
"We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored." Id., at 467, 86 S.Ct., at 1624.
17
The per se rule that the North Carolina Supreme Court has found in Miranda does not speak to these concerns. There is no doubt that this respondent was adequately and effectively apprised of his rights. The only question is whether he waived the exercise of one of those rights, the right to the presence of a lawyer. Neither the state court nor the respondent has offered any reason why there must be a negative answer to that question in the absence of an express waiver. This is not the first criminal case to question whether a defendant waived his constitutional rights. It is an issue with which courts must repeatedly deal. Even when a right so fundamental as that to counsel at trial is involved, the question of waiver must be determined on "the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. See also United States v. Washington, 431 U.S. 181, 188, 97 S.Ct. 1814, 1819, 52 L.Ed.2d 238; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684.
18
We see no reason to discard that standard and replace it with an inflexible per se rule in a case such as this. As stated at the outset of this opinion, it appears that every court that has considered this question has now reached the same conclusion. Ten of the eleven United States Courts of Appeals5 and the courts of at least 17 States6 have held that an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case. By creating an inflexible rule that no implicit waiver can ever suffice, the North Carolina Supreme Court has gone beyond the requirements of federal organic law. It follows that its judgment cannot stand, since a state court can neither add to nor subtract from the mandates of the United States Constitution. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570.7
19
Accordingly, the judgment is vacated, and the case is remanded to the North Carolina Supreme Court for further proceedings not inconsistent with this opinion.
20
It is so ordered.
21
Mr. Justice POWELL took no part in the consideration or decision of this case.
22
Mr. Justice BLACKMUN, concurring.
23
I join the opinion of the Court. My joinder, however, rests on the assumption that the Court's citation to Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), ante, at 374-375, is not meant to suggest that the "intentional relinquishment or abandonment of a known right" formula—the formula Zerbst articulated for determining the waiver vel non "of fundamental constitutional rights," 304 U.S., at 464, 58 S.Ct., at 1023—has any relevance in determining whether a defendant has waived his "right to the presence of a lawyer," ante, at 374, under Miranda § prophylactic rule.
24
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice STEVENS joins, dissenting.
25
Miranda v. Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966), held that "[n]o effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given." (Emphasis added.) Support for this holding was found in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), which held that in the absence of an allegation of an "affirmative waiver . . . there is no disputed fact question requiring a hearing." (Emphasis added.)
26
There is no allegation of an affirmative waiver in this case. As the Court concedes, the respondent here refused to sign the waiver form, and "said nothing when advised of his right to the assistance of a lawyer." Ante, at 371. Thus, there was no "disputed fact question requiring a hearing," and the trial court erred in holding one. In the absence of an "affirmative waiver" in the form of an express written or oral statement, the Supreme Court of North Carolina correctly granted a new trial. I would, therefore, affirm its decision.
27
The rule announced by the Court today allows a finding of waiver based upon "infer[ence] from the actions and words of the person interrogated." Ante, at 373. The Court thus shrouds in half-light the question of waiver, allowing courts to construct inferences from ambiguous words and gestures. But the very premise of Miranda requires that ambiguity be interpreted against the interrogator. That premise is the recognition of the "compulsion inherent in custodial" interrogation, 384 U.S., at 458, 86 S.Ct. 1602, and of its purpose "to subjugate the individual to the will of [his] examiner," id., at 457, 86 S.Ct., at 1619. Under such conditions, only the most explicit waivers of rights can be considered knowingly and freely given.
28
The instant case presents a clear example of the need for an express waiver requirement. As the Court acknowledges, there is a disagreement over whether respondent was orally advised of his rights at the time he made his statement.* The fact that Butler received a written copy of his rights is deemed by the Court to be sufficient basis to resolve the disagreement. But, unfortunately, there is also a dispute over whether Butler could read. See Tr. of Oral Arg. 22, 23. And, obviously, if Butler did not have his rights read to him, and could not read them himself, there could be no basis upon which to conclude that he knowingly waived them. Indeed, even if Butler could read there is no reason to believe that his oral statements, which followed a refusal to sign a written waiver form, were intended to signify relinquishment of his rights.
29
Faced with "actions and words" of uncertain meaning, some judges may find waivers where none occurred. Others may fail to find them where they did. In the former case, the defendant's rights will have been violated; in the latter, society's interest in effective law enforcement will have been frustrated. A simple prophylactic rule requiring the police to obtain an express waiver of the right to counsel before proceeding with interrogation eliminates these difficulties. And since the Court agrees that Miranda requires the police to obtain some kind of waiver—whether express or implied—the requirement of an express waiver would impose no burden on the police not imposed by the Court's interpretation. It would merely make that burden explicit. Had Agent Martinez simply elicited a clear answer from Willie Butler to the question, "Do you waive your right to a lawyer?" this journey through three courts would not have been necessary.
1
The parties disagree over whether the respondent was also orally advised of his Miranda rights at the New Rochelle office. There is no dispute that he was given those warnings orally at the scene of the arrest, or that he read the "Advice of Rights" form in the New Rochelle office. This factual controversy, therefore, is not relevant to the basic issue in this case.
The dissenting opinion points out, post, at 378, that at oral argument the respondent's counsel disputed the fact that the respondent is literate. But the trial court specifically found that "it had been . . . determined by Agent Martinez that the defendant has an Eleventh Grade Education and that he could read and write . . . ." App. 21. This finding, based upon uncontroverted evidence, is binding on this Court.
2
The respondent admitted to the agents that he and Lee had been drinking heavily on the day of the robbery. He acknowledged that they had decided to rob a gas station, but denied that he had actually participated in the robbery. His friend, he said, had shot the attendant.
3
But see State v. Siler, 292 N.C. 543, 550, 234 S.E.2d 733, 738 (1977). In that case, the North Carolina Supreme Court adhered to the interpretation of Miranda it first expressed in Blackmon, but acknowledged that it might find waiver without an express written or oral statement if the defendant's subsequent comments revealed that his earlier silence had been meant as a waiver. Although Siler was cited by the State Supreme Court in the present case, that portion of the Siler opinion was not discussed.
4
We do not today even remotely question the holding in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, which was specifically approved in the Miranda opinion, 384 U.S., at 475, 86 S.Ct., at 1628. In that case, decided before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the Court held that the defendant had a constitutional right to counsel under the Fourteenth Amendment. The Florida Supreme Court had presumed that his right had been waived because there was no evidence in the record that he had requested counsel. The Court refused to allow a presumption of waiver from a silent record. It said: "The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer." 369 U.S., at 516, 82 S.Ct., at 890. This statement is consistent with our decision today, which is merely that a court may find an intelligent and understanding rejection of counsel in situations where the defendant did not expressly state as much.
5
United States v. Speaks, 453 F.2d 966 (CA1 1972); United States v. Boston, 508 F.2d 1171 (CA2 1974); United States v. Stuckey, 441 F.2d 1104 (CA3 1971); Blackmon v. Blackledge, 541 F.2d 1070 (CA4 1976); United States v. Hayes, 385 F.2d 375 (CA4 1967); United States v. Cavallino, 498 F.2d 1200 (CA5 1974); United States v. Montos, 421 F.2d 215 (CA5 1970); United States v. Ganter, 436 F.2d 364 (CA7 1970); United States v. Marchildon, 519 F.2d 337 (CA8 1975); Hughes v. Swenson, 452 F.2d 866 (CA8 1971); United States v. Moreno-Lopez, 466 F.2d 1205 (CA9 1972); United States v. Hilliker, 436 F.2d 101 (CA9 1970); Bond v. United States, 397 F.2d 162 (CA10 1968) (but see Sullins v. United States, 389 F.2d 985 (CA10 1968)); United States v. Cooper, 163 U.S.App.D.C. 55, 499 F.2d 1060 (1974). In Blackmon v. Blackledge, supra, the Court of Appeals for the Fourth Circuit specifically rejected the North Carolina Supreme Court's inflexible view that only express waivers of Miranda rights can be valid.
The Courts of Appeals have unanimously rejected the similar argument that refusal to sign a written waiver form precludes a finding of waiver. See United States v. Speaks, supra; United States v. Boston, supra; United States v. Stuckey, supra; United States v. Thompson, 417 F.2d 196 (CA4 1969); United States v. Guzman-Guzman, 488 F.2d 965 (CA5 1974); United States v. Caulton, 498 F.2d 412 (CA6 1974); United States v. Crisp, 435 F.2d 354 (CA7 1970); United States v. Zamarripa, 544 F.2d 978 (CA8 1976); United States v. Moreno-Lopez, supra; Bond v. United States, supra; and United States v. Cooper, supra.
6
Sullivan v. State, 351 So.2d 659 (Ala.Cr.App.), cert. denied, 351 So.2d 665 (Ala.1977); State v. Pineda, 110 Ariz. 342, 519 P.2d 41 (1974); State ex rel. Berger v. Superior Court, 109 Ariz. 506, 513 P.2d 935 (1973); People v. Johnson, 70 Cal.2d 541, 75 Cal.Rptr. 401, 450 P.2d 865 (1969) (reversing lower court on other grounds); People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972); Reed v. People, 171 Colo. 421, 467 P.2d 809 (1970); State v. Craig, 237 So.2d 737 (Fla.1970); Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977); People v. Brooks, 51 Ill.2d 156, 281 N.E.2d 326 (1972); State v. Wilson, 215 Kan. 28, 523 P.2d 337 (1974); State v. Hazelton, 330 A.2d 919 (Me.1975); Miller v. State, 251 Md. 362, 247 A.2d 530 (1968); Commonwealth v. Murray, 359 Mass. 541, 269 N.E.2d 641 (1971); State v. Alewine, 474 S.W.2d 848 (Mo.1971); Burnside v. State, 473 S.W.2d 697 (Mo.1971); Shirey v. State, 520 P.2d 701 (Okl.Cr.App.1974); State v. Davidson, 252 Or. 617, 451 P.2d 481 (1969); Commonwealth v. Garnett, 458 Pa. 4, 326 A.2d 335 (1974); Bowling v. State, 3 Tenn.Cr.App. 176, 458 S.W.2d 639 (1970); State v. Young, 89 Wash.2d 613, 574 P.2d 1171 (1978). See also Aaron v. State, 275 A.2d 791 (Del.1971); State v. Nelson, Minn., 257 N.W.2d 356 (1977); Land v. Commonwealth, 211 Va. 223, 176 S.E.2d 586 (1970) (reversing lower court on other grounds).
7
By the same token this Court must accept whatever construction of a state constitution is placed upon it by the highest court of the State.
*
The Court states that whether Butler was orally advised of his rights at the time of the interrogation, or rather was orally advised only at the scene of the arrest, is "not relevant to the basic issue in this case." Ante, at 371 n. 1. But the fact that Butler received oral warnings upon his arrest in the Bronx does not establish that he understood that the same rights applied to the interrogation conducted in New Rochelle. This is particularly so since he was told at the latter that he did not have to sign the "Advice of Rights" form, but that the agent "would like for him to talk." 295 N.C. 250, 253, 244 S.E.2d 410, 412 (1978). Indeed, the Court does not argue that the earlier oral recitation was sufficient, but rather cites in addition Butler's receipt of the written "Advice of Rights" form. However, if Butler could not read, oral warnings were the only ones that mattered, and it thus becomes highly relevant whether he was told of his rights at the time he was interrogated.
| 01
|
441 U.S. 380
99 S.Ct. 1760
60 L.Ed.2d 297
Abdiel CABAN, Appellant,v.Kazim MOHAMMED and Maria Mohammed.
No. 77-6431.
Argued Nov. 6, 1978.
Decided April 24, 1979.
Syllabus
Appellant and appellee Maria Mohammed lived together out of wedlock for several years in New York City, during which time two children were born. Appellant, who was identified as the father on the birth certificates, contributed to the children's support. After the couple separated, Maria took the children and married her present husband (also an appellee). During the next two years appellant frequently saw or otherwise maintained contact with the children. Appellees subsequently petitioned for adoption of the children, and appellant filed a cross-petition. The Surrogate granted appellees' petition under § 111 of the New York Domestic Relations Law, which permits an unwed mother, but not an unwed father, to block the adoption of their child simply by withholding her consent. Rejecting appellant's contention that § 111 is unconstitutional, the state appellate courts affirmed on the basis of In re Malpica-Orsini, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486. In that case the New York Court of Appeals held that § 111 furthered the interests of illegitimate children, for whom adoption is often the best course, reasoning that people wishing to adopt a child born out of wedlock would be discouraged if the natural father could prevent adoption merely by withholding his consent. Moreover, the court suggested that if the consent of the natural father were required, adoptions would be jeopardized because of his unavailability. Held:
1. Contrary to appellees' contention, it is clear that § 111 treats unmarried parents differently according to their sex. The section's consent requirement is no mere formality, since the New York Courts have held that the question of whether consent is required is entirely separate from the consideration of the best interests of the child. In this very case, the Surrogate held that adoption by appellant was impermissible absent Maria's consent, whereas adoption by Maria and her husband could be prevented by appellant only if he could show that such adoption would not be in the children's best interests. Pp. 387-388.
2. The sex-based distinction in § 111 between unmarried mothers and unmarried fathers violates the Equal Protection Clause of the Fourteenth Amendment because it bears no substantial relation to any important state interest. Pp. 388-394. (a) Maternal and paternal roles are not invariably different in importance. Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, the generalization concerning parent-child relations would become less acceptable to support legislative distinctions as the child's age increased. P. 389.
(b) Unwed fathers are no more likely to oppose adoption of their children than are unwed mothers. Pp. 391-392.
(c) Even if special difficulties in locating and identifying unwed fathers at birth warranted a legislative distinction between mothers and fathers of newborns, such difficulties need not persist past infancy; and in those instances where, unlike the present case, the father has not participated in the rearing of the child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child. Pp. 392-393.
43 N.Y.2d 708, 401 N.Y.S.2d 208, 372 N.E.2d 42, reversed.
Robert H. Silk, New York City, for appellant.
Morris Schulslaper, Brooklyn, N.Y., for appellees.
Irwin M. Strum, Asst. Atty. Gen., New York City, for the Attorney General of New York, as amicus curiae, by special leave of Court.
Mr. Justice POWELL delivered the opinion of the Court.
1
The appellant, Abdiel Caban, challenges the constitutionality of § 111 of the New York Domestic Relations Law (McKinney 1977), under which two of his natural children were adopted by their natural mother and stepfather without his consent. We find the statute to be unconstitutional, as the distinction it invariably makes between the rights of unmarried mothers and the rights of unmarried fathers has not been shown to be substantially related to an important state interest.
2
* Abdiel Caban and appellee Maria Mohammed lived together in New York City from September 1968 until the end of 1973. During this time Caban and Mohammed represented themselves as being husband and wife, although they never legally married. Indeed, until 1974 Caban was married to another woman, from whom he was separated. While living with the appellant, Mohammed gave birth to two children: David Andrew Caban, born July 16, 1969, and Denise Caban, born March 12, 1971. Abdiel Caban was identified as the father on each child's birth certificate, and lived with the children as their father until the end of 1973. Together with Mohammed, he contributed to the support of the family.
3
In December 1973, Mohammed took the two children and left the appellant to take up residence with appellee Kazim Mohammed, whom she married on January 30, 1974. For the next nine months, she took David and Denise each weekend to visit her mother, Delores Gonzales, who lived one floor above Caban. Because of his friendship with Gonzales, Caban was able to see the children each week when they came to visit their grandmother.
4
In September 1974, Gonzales left New York to take up residence in her native Puerto Rico. At the Mohammeds' request, the grandmother took David and Denise with her. According to appellees, they planned to join the children in Puerto Rico as soon as they had saved enough money to start a business there. During the children's stay with their grandmother, Mrs. Mohammed kept in touch with David and Denise by mail; Caban communicated with the children through his parents, who also resided in Puerto Rico. In November 1975, he went to Puerto Rico, where Gonzales willingly surrendered the children to Caban with the understanding that they would be returned after a few days. Caban, however, returned to New York with the children. When Mrs. Mohammed learned that the children were in Caban's custody, she attempted to retrieve them with the aid of a police officer. After this attempt failed, the appellees instituted custody proceedings in the New York Family Court, which placed the children in the temporary custody of the Mohammeds and gave Caban and his new wife, Nina, visiting rights.
5
In January 1976, appellees filed a petition under § 110 of the New York Domestic Relations Law to adopt David and Denise.1 In March, the Cabans cross-petitioned for adoption. After the Family Court stayed the custody suit pending the outcome of the adoption proceedings, a hearing was held on the petition and cross petition before a Law Assistant to a New York Surrogate in Kings County, N.Y. At this hearing, both the Mohammeds and the Cabans were represented by counsel and were permitted to present and cross-examine witnesses.
6
The Surrogate granted the Mohammeds' petition to adopt the children, thereby cutting off all of appellant's parental rights and obligations.2 In his opinion, the Surrogate noted the limited right under New York law of unwed fathers in adoption proceedings: "Although a putative father's consent to such an adoption is not a legal necessity, he is entitled to an opportunity to be heard in opposition to the proposed stepfather adoption." Moreover, the court stated that the appellant was foreclosed from adopting David and Denise, as the natural mother had withheld her consent. Thus, the court considered the evidence presented by the Cabans only insofar as it reflected upon the Mohammeds' qualifications as prospective parents. The Surrogate found them well qualified and granted their adoption petition.
7
The New York Supreme Court, Appellate Division, affirmed. It stated that appellant's constitutional challenge to § 111 was foreclosed by the New York Court of Appeals' decision in In re Malpica-Orsini, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486 (1975), appeal dism'd for want of substantial federal question sub nom. Orsini v. Blasi, 423 U.S. 1042, 96 S.Ct. 765, 46 L.Ed.2d 642 (1976). In re David Andrew C. 56 A.D.2d 627, 391 N.Y.S.2d 846 (1977). The New York Court of Appeals dismissed the appeal in a memorandum decision based on In re Malpica-Orsini, supra. In re David A. C., 43 N.Y.2d 708, 401 N.Y.S.2d 208, 372 N.E.2d 42 (1977).
8
On appeal to this Court, appellant presses two claims. First, he argues that the distinction drawn under New York law between the adoption rights of an unwed father and those of other parents violates the Equal Protection Clause of the Fourteenth Amendment. Second, appellant contends that this Court's decision in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), recognized the due process right of natural fathers to maintain a parental relationship with their children absent a finding that they are unfit as parents.3
II
9
Section 111 of the N.Y.Dom.Rel.Law (McKinney 1977) provides in part that
10
"CONSENT TO ADOPTION SHALL BE REQUIRED AS FOLLOWS: . . . (b) of the parents or surviving parent, whether adult or infant, of a child born in wedlock; [and] (c) Of the mother, whether adult or infant, of a child born out of wedlock. . . ."
11
The statute makes parental consent unnecessary, however, in certain cases, including those where the parent has abandoned or relinquished his or her rights in the child or has been adjudicated incompetent to care for the child.4 Absent one of these circumstances, an unwed mother has the authority under New York law to block the adoption of her child simply by withholding consent. The unwed father has no similar control over the fate of his child, even when his parental relationship is substantial—as in this case. He may prevent the termination of his parental rights only by showing that the best interests of the child would not permit the child's adoption by the petitioning couple.
12
Despite the plain wording of the statute, appellees argue that unwed fathers are not treated differently under § 111 from other parents. According to appellees, the consent requirement of § 111 is merely a formal requirement, lacking in substance, as New York courts find consent to be unnecessary whenever the best interests of the child support the adoption. Because the best interests of the child always determine whether an adoption petition is granted in New York, appellees contend that all parents, including unwed fathers, are subject to the same standard.
13
Appellees' interpretation of § 111 finds no support in New York case law. On the contrary, the New York Court of Appeals has stated unequivocally that the question whether consent is required is entirely separate from that of the best interests of the child.5 Indeed, the Surrogate's decision in the present case, affirmed by the New York Court of Appeals, was based upon the assumption that there was a distinctive difference between the rights of Abdiel Caban, as the unwed father of David and Denise, and Maria Mohammed, as the unwed mother of the children: Adoption by Abdiel was held to be impermissible in the absence of Maria's consent, whereas adoption by Maria could be prevented by Abdiel only if he could show that the Mohammeds' adoption of the children would not be in the children's best interests. Accordingly, it is clear that § 111 treats unmarried parents differently according to their sex.6
III
14
Gender-based distinctions "must serve important governmental objectives and must be substantially related to achievement of those objectives" in order to withstand judicial scrutiny under the Equal Protection Clause. Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976). See also Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). The question before us, therefore, is whether the distinction in § 111 between unmarried mothers and unmarried fathers bears a substantial relation to some important state interest. Appellees assert that the distinction is justified by a fundamental difference between maternal and paternal relations—that "a natural mother, absent special circumstances, bears a closer relationship with her child . . . than a father does." Tr. of Oral Arg. 41.
15
contrary to appellees' argument and to the apparent presumption underlying § 111, maternal and paternal roles are not invariably different in importance. Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, this generalization concerning parent-child relations would become less acceptable as a basis for legislative distinctions as the age of the child increased. The present case demonstrates that an unwed father may have a relationship with his children fully comparable to that of the mother. Appellant Caban, appellee Maria Mohammed, and their two children lived together as a natural family for several years. As members of this family, both mother and father participated in the care and support of their children.7 There is no reason to believe that the Caban children aged 4 and 6 at the time of the adoption proceedings—had a relationship with their mother unrivaled by the affection and concern of their father. We reject, therefore, the claim that the broad, gender-based distinction of § 111 is required by any universal difference between maternal and paternal relations at every phase of a child's development.
16
As an alternative justification for § 111, appellees argue that the distinction between unwed fathers and unwed mothers is substantially related to the State's interest in promoting the adoption of illegitimate children. Although the legislative history of § 111 is sparse,8 in In re Malpica-Orsini, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486 (1975), the New York Court of Appeals identified as the legislature's purpose in enacting § 111 the furthering of the interests of illegitimate children, for whom adoption often is the best course.9 The court concluded:
17
"require the consent of fathers of children born out of wedlock . . . , or even some of them, would have the overall effect of denying homes to the homeless and of depriving innocent children of the other blessings of adoption. The cruel and undeserved out-of-wedlock stigma would continue its visitations. At the very least, the worthy process of adoption would be severely impeded." 36 N.Y.2d, at 572, 370 N.Y.S.2d, at 516, 331 N.E.2d, at 489.
18
The court reasoned that people wishing to adopt a child born out of wedlock would be discouraged if the natural father could prevent the adoption by the mere withholding of his consent. Indeed, the court went so far as to suggest that "[m]arriages would be discouraged because of the reluctance of prospective husbands to involve themselves in a family situation where they might only be a foster parent and could not adopt the mother's offspring." Id., at 573, 370 N.Y.S.2d, at 517, 331 N.E.2d, at 490. Finally, the court noted that if unwed fathers' consent were required before adoption could take place, in many instances the adoption would have to be delayed or eliminated altogether, because of the unavailability of the natural father.10
19
The State's interest in providing for the well-being of illegitimate children is an important one. We do not question that the best interests of such children often may require their adoption into new families who will give them the stability of a normal, two-parent home. Moreover, adoption will remove the stigma under which illegitimate children suffer. But the unquestioned right of the State to further these desirable ends by legislation is not in itself sufficient to justify the gender-based distinction of § 111. Rather, under the relevant cases applying the Equal Protection Clause it must be shown that the distinction is structured reasonably to further these ends. As we repeated in Reed v. Reed, 404 U.S., at 76, 92 S.Ct., at 254, such a statutory "classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U.S. 412, 415, [40 S.Ct. 560, 561, 64 L.Ed. 989] (1920)."
20
We find that the distinction in § 111 between unmarried mothers and unmarried fathers, as illustrated by this case, does not bear a substantial relation to the State's interest in providing adoptive homes for its illegitimate children. It may be that, given the opportunity, some unwed fathers would prevent the adoption of their illegitimate children. This impediment to adoption usually is the result of a natural parental interest shared by both genders alike; it is not a manifestation of any profound difference between the affection and concern of mothers and fathers for their children. Neither the State nor the appellees have argued that unwed fathers are more likely to object to the adoption of their children than are unwed mothers; nor is there any self-evident reason why as a class they would be.
21
The New York Court of Appeals in In re Malpica-Orsini, supra, suggested that the requiring of unmarried fathers' consent for adoption would pose a strong impediment for adoption because often it is impossible to locate unwed fathers when adoption proceedings are brought, whereas mothers are more likely to remain with their children. Even if the special difficulties attendant upon locating and identifying unwed fathers at birth would justify a legislative distinction between mothers and fathers of newborns,11 these difficulties need not persist past infancy. When the adoption of an older child is sought, the State's interest in proceeding with adoption cases can be protected by means that do not draw such an inflexible gender-based distinction as that made in § 111.12 In those cases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child. Indeed, under the statute as it now stands the surrogate may proceed in the absence of consent when the parent whose consent otherwise would be required never has come forward or has abandoned the child.13 See, e. g., In re Orlando F., 40 N.Y.2d 103, 386 N.Y.S.2d 64, 351 N.E.2d 711 (1976). But in cases such as this, where the father has established a substantial relationship with the child and has admitted his paternity,14 a State should have no difficulty in identifying the father even of children born out of wedlock.15 Thus, no showing has been made that the different treatment afforded unmarried fathers and unmarried mothers under § 111 bears a substantial relationship to the proclaimed interest of the State in promoting the adoption of illegitimate children.
22
In sum, we believe that § 111 is another example of "overbroad generalizations" in gender-based classifications. See Califano v. Goldfarb, 430 U.S. 199, 211, 97 S.Ct. 1021, 1029, 51 L.Ed.2d 270 (1977); Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-1378, 43 L.Ed.2d 688 (1975). The effect of New York's classification is to discriminate against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child. The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children. Section 111 both excludes some loving fathers from full participation in the decision whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the paternal rights of fathers. We conclude that this undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship to the State's asserted interests.16
23
The judgment of the New York Court of Appeals is
24
Reversed.
25
Mr. Justice STEWART, dissenting.
26
For reasons similar to those expressed in the dissenting opinion of Mr. Justice STEVENS, I agree that § 111(1)(c) of the New York Domestic Relations Law (McKinney 1977) is not constitutionally infirm. The State's interest in promoting the welfare of illegitimate children is of far greater importance than the opinion of the Court would suggest. Unlike the children of married parents, illegitimate children begin life with formidable handicaps. They typically depend upon the care and economic support of only one parent—usually the mother. And, even in this era of changing mores, they still may face substantial obstacles simply because they are illegitimate. Adoption provides perhaps the most generally available way of removing these handicaps. See H. Clark, Law of Domestic Relations 177 (1968). Most significantly, it provides a means by which an illegitimate child can become legitimate—a fact that the Court's opinion today barely acknowledges.
27
The New York statute reflects the judgment that, to facilitate this ameliorative change in the child's status, the consent of only one parent should ordinarily be required for adoption of a child born out of wedlock. The mother has been chosen as the parent whose consent is indispensable. A different choice would defy common sense. But the unwed father, if he is the lawful custodian of the child, must under the statute also consent.* And, even when he does not have custody, the unwed father who has an established relationship with his illegitimate child is not denied the opportunity to participate in the adoption proceeding. His relationship with the child will be terminated through adoption only if a court determines that adoption will serve the child's best interest. These distinctions represent, I think, a careful accommodation of the competing interests at stake and bear a close and substantial relationship to the State's goal of promoting the welfare of its children. In my view, the Constitution requires no more.
28
The appellant has argued that the statute, in granting rights to an unwed mother that it does not grant to an unwed father, violates the Equal Protection Clause by discriminating on the basis of gender. And he also has made the argument that the statute, because it withholds from the unwed father substantive rights granted to all other classes of parents, violates both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. I find the latter contention less troublesome than does my Brother STEVENS, and see no ultimate merit in the former.
A.
29
The appellant relies primarily on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, in advancing the second argument identified above. But it is obvious that the principle established in that case is not offended by the New York law. The Illinois statute invalidated in Stanley employed a stark and absolute presumption that the unwed father was not a fit parent. Upon the death of the unwed mother, the children were declared wards of the State and in Stanley's case were removed from his custody without any hearing or demonstration that he was not a fit parent. Custody having been taken from the father by a stranger the State—the children were then transferred to other strangers. Stanley, who had lived with his three children over a period of 18 years, was given no opportunity to object. And, although the statute purported to promote the welfare of illegitimate children, the State's termination of Stanley's family relationship was made without any finding that the interests of his children would thereby be served.
30
Here, in sharp contrast, the unwed mother is alive, has married, and has voluntarily initiated the adoption proceeding. The appellant has been given the opportunity to participate and to present evidence on the question whether adoption would be in the best interests of the children. Thus, New York has accorded to the appellant all the process that Illinois unconstitutionally denied to Stanley.
31
The Constitution does not require that an unmarried father's substantive parental rights must always be coextensive with those afforded to the fathers of legitimate children. In this setting, it is plain that the absence of a legal tie with the mother provides a constitutionally valid ground for distinction. The decision to withhold from the unwed father the power to veto an adoption by the natural mother and her husband may well reflect a judgment that the putative father should not be able arbitrarily to withhold the benefit of legitimacy from his children.
32
Even if it be assumed that each married parent after divorce has some substantive due process right to maintain his or her parental relationship, cf. Smith v. Organization of Foster Families, 431 U.S. 816, 862-863, 97 S.Ct. 2094, 2119, 53 L.Ed.2d 14 (opinion concurring in judgment), it by no means follows that each unwed parent has any such right. Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring. The mother carries and bears the child, and in this sense her parental relationship is clear. The validity of the father's parental claims must be gauged by other measures. By tradition, the primary measure has been the legitimate familial relationship he creates with the child by marriage with the mother. By definition, the question before us can arise only when no such marriage has taken place. In some circumstances the actual relationship between father and child may suffice to create in the unwed father parental interests comparable to those of the married father. Cf. Stanley v. Illinois, supra. But here we are concerned with the rights the unwed father may have when his wishes and those of the mother are in conflict, and the child's best interests are served by a resolution in favor of the mother. It seems to me that the absence of a legal tie with the mother may in such circumstances appropriately place a limit on whatever substantive constitutional claims might otherwise exist by virtue of the father's actual relationship with the children.
B
33
The appellant's equal protection challenge to the distinction drawn between the unwed father and mother seems to me more substantial. Gender, like race, is a highly visible and immutable characteristic that has historically been the touchstone for pervasive but often subtle discrimination. Although the analogy to race is not perfect and the constitutional inquiry therefore somewhat different, gender-based statutory classifications deserve careful constitutional examination because they may reflect or operate to perpetuate mythical or stereotyped assumptions about the proper roles and the relative capabilities of men and women that are unrelated to any inherent differences between the sexes. Cf. Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306. Sex-based classifications are in many settings invidious because they relegate a person to the place set aside for the group on the basis of an attribute that the person cannot change. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688; Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514; Orr v. Orr, supra. Such laws cannot be defended, as can the bulk of the classifications that fill the statute books, simply on the ground that the generalizations they reflect may be true of the majority of members of the class, for a gender-based classification need not ring false to work a discrimination that in the individual case might be invidious. Nonetheless, gender-based classifications are not invariably invalid. When men and women are not in fact similarly situated in the area covered by the legislation in question, the Equal Protection Clause is not violated. See, e. g., Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610. Cf. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 59, 93 S.Ct. 1278, 1310, 36 L.Ed.2d 16 (concurring opinion).
34
In my view, the gender-based distinction drawn by New York falls in this latter category. With respect to a large group of adoptions—those of newborn children and infants—unwed mothers and unwed fathers are simply not similarly situated, as my Brother STEVENS has demonstrated. Our law has given the unwed mother the custody of her illegitimate children precisely because it is she who bears the child and because the vast majority of unwed fathers have been unknown, unavailable, or simply uninterested. See H. Clark, Law of Domestic Relations 176-177 (1968); H. Krause, Illegitimacy: Law and Social Policy 29-32 (1971). This custodial preference has carried with it a correlative power in the mother to place her child for adoption or not to do so.
35
The majority of the States have incorporated these basic common-law rules in their statutes identifying the persons whose participation or consent is requisite to a valid adoption. See generally Note, 59 Va.L.Rev. 517 (1973); Comment, 70 Mich.L.Rev. 1581 (1972). These common-law and statutory rules of law reflect the physical reality that only the mother carries and gives birth to the child, as well as the undeniable social reality that the unwed mother is always an identifiable parent and the custodian of the child—until or unless the State intervenes. The biological father, unless he has established a familial tie with the child by marrying the mother, is often a total stranger from the State's point of view. I do not understand the Court to question these pragmatic differences. See ante, at 392. An unwed father who has not come forward and who has established no relationship with the child is plainly not in a situation similar to the mother's. New York's consent distinctions have clearly been made on this basis, and in my view they do not violate the Equal Protection Clause of the Fourteenth Amendment. See Schlesinger v. Ballard, supra.
36
In this case, of course, we are concerned not with an unwilling or unidentified father but instead with an unwed father who has established a paternal relationship with his children. He is thus similarly situated to the mother, and his claim is that he thus has parental interests no less deserving of protection than those of the mother. His contention that the New York law in question consequently discriminates against him on the basis of gender cannot be lightly dismissed. For substantially the reasons expressed by Mr. Justice STEVENS in his dissenting opinion, post, at 412-413, I believe, however, that this gender-based distinction does not violate the Equal Protection Clause as applied in the circumstances of the present case.
37
It must be remembered that here there are not two, but three interests at stake: the mother's, the father's, and the children's. Concerns humane as well as practical abundantly support New York's provision that only one parent need consent to the adoption of an illegitimate child, though it requires both parents to consent to the adoption of one already legitimate. If the consent of both unwed parents were required, and one withheld that consent, the illegitimate child would remain illegitimate. Viewed in these terms the statute does not in any sense discriminate on the basis of sex. The question, then, is whether the decision to select the unwed mother as the parent entitled to give or withhold consent and to apply that rule even when the unwed father in fact has a paternal relationship with his children constitutes invidious sex-based discrimination.
38
The appellant's argument would be a powerful one were this an instance in which it had been found that adoption by the father would serve the best interests of the children, and in the face of that finding the mother had been permitted to block the adoption. But this is not such a case. As my Brother STEVENS has observed, under a sex-neutral rule—assuming that New York is free to require the consent of but one parent for the adoption of an illegitimate child—the outcome in this case would have been the same. The appellant has been given the opportunity to show that an adoption would not be in his children's best interests. Implicit in the finding made by the New York courts is the judgment that termination of his relationship with the children will in fact promote their well-being—a judgment we are obligated to accept.
39
That the statute might permit—in a different context—the unwed mother arbitrarily to thwart the wishes of the caring father as well as the best interests of the child is not a sufficient reason to invalidate it as applied in the present case. For here the legislative goal of the statute—to facilitate adoptions that are in the best interests of illegitimate children after consideration of all other interests involved—has indeed been fully and fairly served by this gender-based classification. Unless the decision to require the consent of only one parent is in itself constitutionally defective, which nobody has argued, the same interests that support that decision are sufficiently profound to overcome the appellant's claim that he has been invidiously discriminated against because he is a male.
40
I agree that retroactive application of the Court's decision today would work untold harm, and I fully subscribe to Part III of Mr. Justice STEVENS' dissent.
41
Mr. Justice STEVENS, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
42
Under § 111(1)(c) of the New York Domestic Relations Law (McKinney 1977), the adoption of a child born out of wedlock usually requires the consent of the natural mother; it does not require that of the natural father unless he has "lawful custody." See ante, at 386 n. 4. Appellant, the natural but noncustodial father of two school-age children born out of wedlock,1 challenges that provision insofar as it allows the adoption of his natural children by the husband of the natural mother without his consent. Appellant's primary objection is that this unconsented-to termination of his parental rights without proof of unfitness on his part violates the substantive component of the Due Process Clause of the Fourteenth Amendment. Secondarily, he attacks § 111(1)(c)'s disparate treatment of natural mothers and natural fathers as a violation of the Equal Protection Clause of the same Amendment. In view of the Court's disposition, I shall discuss the equal protection question before commenting on appellant's primary contention. I shall then indicate why I think the holding of the Court, although erroneous, is of limited effect.
43
* This case concerns the validity of rules affecting the status of the thousands of children who are born out of wedlock every day.2 All of these children have an interest in acquiring the status of legitimacy; a great many of them have an interest in being adopted by parents who can give them opportunities that would otherwise be denied; for some the basic necessities of life are at stake. The state interest in facilitating adoption in appropriate cases is strong—perhaps even "compelling."3
44
Nevertheless, it is also true that § 111(1)(c) gives rights to natural mothers that it withholds from natural fathers. Because it draws this gender-based4 distinction between two classes of citizens who have an equal right to fair and impartial treatment by their government, it is necessary to determine whether there are differences between the members of the two classes that provide a justification for treating them differently.5 That determination requires more than merely recognizing that society has traditionally treated the two classes differently.6 But it also requires analysis that goes beyond a merely reflexive rejection of gender-based distinctions.
45
Men and women are different, and the difference is relevant to the question whether the mother may be given the exclusive right to consent to the adoption of a child born out of wedlock. Because most adoptions involve newborn infants or very young children,7 it is appropriate at the outset to focus on the significance of the difference in such cases.
46
Both parents are equally responsible for the conception of the child out of wedlock.8 But from that point on through pregnancy and infancy, the differences between the male and the female have an important impact on the child's destiny. Only the mother carries the child; it is she who has the constitutional right to decide whether to bear it or not.9 In many cases, only the mother knows who sired the child, and it will often be within her power to withhold that fact, and even the fact of her pregnancy, from that person. If during pregnancy the mother should marry a different partner, the child will be legitimate when born, and the natural father may never even know that his "rights" have been affected. On the other hand, only if the natural mother agrees to marry the natural father during that period can the latter's actions have a positive impact on the status of the child; if he instead should marry a different partner during that time, the only effect on the child is negative, for the likelihood of legitimacy will be lessened.
47
These differences continue at birth and immediately thereafter. During that period, the mother and child are together;10 the mother's identity is known with certainty. The father, on the other hand, may or may not be present; his identity may be unknown to the world and may even be uncertain to the mother.11 These natural differences between unmarried fathers and mothers make it probable that the mother, and not the father or both parents, will have custody of the newborn infant.12
48
In short, it is virtually inevitable that from conception through infancy the mother will constantly be faced with decisions about how best to care for the child, whereas it is much less certain that the father will be confronted with comparable problems. There no doubt are cases in which the relationship of the parties at birth makes it appropriate for the State to give the father a voice of some sort in the adoption decision.13 But as a matter of equal protection analysis, it is perfectly obvious that at the time and immediately after a child is born out of wedlock, differences between men and women justify some differential treatment of the mother and father in the adoption process.
49
Most particularly, these differences justify a rule that gives the mother of the new born infant the exclusive right to consent to its adoption. Such a rule gives the mother, in whose sole charge the infant is often placed anyway, the maximum flexibility in deciding how best to care for the child. It also gives the loving father an incentive to marry the mother,14 and has no adverse impact on the disinterested father. Finally, it facilitates the interests of the adoptive parents, the child, and the public at large by streamlining the often traumatic adoption process and allowing the prompt, complete, and reliable integration of the child into a satisfactory new home at as young an age as is feasible.15 Put most simply, it permits the maximum participation of interested natural parents without so burdening the adoption process that its attractiveness to potential adoptive parents is destroyed.
50
This conclusion is borne out by considering the alternative rule proposed by appellant. If the State were to require the consent of both parents, or some kind of hearing to explain why either's consent is unnecessary or unobtainable,16 it would unquestionably complicate and delay the adoption process. Most importantly, such a rule would remove the mother's freedom of choice in her own and the child's behalf without also relieving her of the unshakable responsibility for the care of the child. Furthermore, questions relating to the adequacy of notice to absent fathers could invade the mother's privacy,17 cause the adopting parents to doubt the reliability of the new relationship, and add to the expense and time required to conclude what is now usually a simple and certain process.18 While it might not be irrational for a State to conclude that these costs should be incurred to protect the interest of natural fathers, it is nevertheless plain that those costs, which are largely the result of differences between the mother and the father, establish an imposing justification for some differential treatment of the two sexes in this type of situation.
51
With this much the Court does not disagree; it confines its holding to cases such as the one at hand involving the adoption of an older child against the wishes of a natural father who previously has participated in the rearing of the child and who admits paternity. Ante, at 392-393. The Court does conclude, however, that the gender basis for the classification drown by § 111(1)(c) makes differential treatment so suspect that the State has the burden of showing not only that the rule is generally justified but also that the justification holds equally true for all persons disadvantaged by the rule. In its view, since the justification is not as strong for some indeterminately small part of the disadvantaged class as it is for the class as a whole, see ante, at 393, the rule is invalid under the Equal Protection Clause insofar as it applies to that subclass. With this conclusion I disagree.
52
If we assume, as we surely must, that characteristics possessed by all members of one class and by no members of the other class justify some disparate treatment of mothers and fathers of children born out of wedlock, the mere fact that the statute draws a "gender-based distinction," see ante, at 389, should not, in my opinion, give rise to any presumption that the impartiality principle embodied in the Equal Protection Clause has been violated.19 Indeed, if we make the further undisputed assumption that the discrimination is justified in those cases in which the rule has its most frequent application—cases involving newborn infants and very young children in the custody of their natural mothers, see nn. 7 and 12, supra —we should presume that the law is entirely valid and require the challenger to demonstrate that its unjust applications are sufficiently numerous and serious to render it invalid.
53
In this case, appellant made no such showing; his demonstration of unfairness, assuming he has made one, extends only to himself and by implication to the unknown number of fathers just like him. Further, while appellant did nothing to inform the New York courts about the size of his subclass and the overall degree of its disadvantage under § 111(1)(c), the New York Court of Appeals has previously concluded that the subclass is small and its disadvantage insignificant by comparison to the benefits of the rule as it now stands.20
54
The mere fact that an otherwise valid general classification appears arbitrary in an isolated case is not a sufficient reason for invalidating the entire rule.21 Nor, indeed, is it a sufficient reason for concluding that the application of a valid rule in a hard case constitutes a violation of equal protection principles.22 We cannot test the conformance of rules to the principle of equality simply by reference to exceptional cases.
55
Moreover, I am not at all sure that § 111(1)(c) is arbitrary even if viewed solely in the light of the exceptional circumstances presently before the Court. This case involves a dispute between natural parents over which of the two may adopt the children. If both are given a veto, as the Court requires, neither may adopt and the children will remain illegitimate. If, instead of a gender-based distinction, the veto were given to the parent having custody of the child, the mother would prevail just as she did in the state court.23 Whether or not it is wise to devise a special rule to protect the natural father who (a) has a substantial relationship with his child, and (b) wants to veto an adoption that a court has been found to be in the best interests of the child, the record in this case does not demonstrate that the Equal Protection Clause requires such a rule.
56
I have no way of knowing how often disputes between natural parents over adoption of their children arise after the father "has established a substantial relationship with the child and [is willing to admit] his paternity," ante, at 393, but has previously been unwilling to take steps to legitimate his relationship. I am inclined to believe that such cases are relatively rare. But whether or not this assumption is valid, the far surer assumption is that in the more common adoption situations, the mother will be the more, and often the only, responsible parent, and that a paternal consent requirement will constitute a hindrance to the adoption process. Because this general rule is amply justified in its normal application, I would therefore require the party challenging its constitutionality to make some demonstration of unfairness in a significant number of situations before concluding that it violates the Equal Protection Clause. That the Court has found a violation without requiring such a showing can only be attributed to its own "stereotyped reaction" to what is unquestionably, but in this case justifiably, a gender-based distinction.
II
57
Although the substantive due process issue is more troublesome,24 I can briefly state the reason why I reject it.
58
I assume that, if and when one develops,25 the relationship between a father and his natural child is entitled to protection against arbitrary state action as a matter of due process. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551.26 Although the Court has not decided whether the Due Process Clause provides any greater substantive protection for this relationship than simply against official caprice,27 it has indicated that an adoption decree that terminates the relationship is constitutionally justified by a finding that the father has abandoned or mistreated the child. See id., at 652, 92 S.Ct., at 1213. In my view, such a decree may also be justified by a finding that the adoption will serve the best interests of the child, at least in a situation such as this in which the natural family unit has already been destroyed, the father has previously taken no steps to legitimate the child, and a further requirement such as a showing of unfitness would entirely deprive the child—and the State—of the benefits of adoption and legitimation.28 As a matter of legislative policy, it can be argued that the latter reason standing alone is insufficient to sever the bonds that have developed between father and child. But that reason surely avoids the conclusion that the order is arbitrary, and is also sufficient to overcome any further protection of those bonds that may exist in the recesses of the Due Process Clause. Although the constitutional principle at least requires a legitimate and relevant reason and, in these circumstances, perhaps even a substantial reason, it does not require the reason to be one that a judge would accept if he were a legislator.
III
59
There is often the risk that the arguments one advances in dissent may give rise to a broader reading of the Court's opinion than is appropriate. That risk is especially grave when the Court is embarking on a new course that threatens to interfere with social arrangements that have come into use over long periods of time. Because I consider the course on which the Court is currently embarked to be potentially most serious, I shall explain why I regard its holding in this case as quite narrow.
60
The adoption decrees that have been entered without the consent of the natural father must number in the millions. An untold number of family and financial decisions have been made in reliance on the validity of those decrees. Because the Court has crossed a new constitutional frontier with today's decision, those reliance interests unquestionably foreclose retroactive application of this ruling. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355-356, 30 L.Ed.2d 296. Families that include adopted children need have no concern about the probable impact of this case on their familial security.
61
Nor is there any reason why the decision should affect the processing of most future adoptions. The fact that an unusual application of a state statute has been held unconstitutional on equal protection grounds does not necessarily eliminate the entire statute as a basis for future legitimate state action. The procedure to be followed in cases involving infants who are in the custody of their mothers—whether solely or jointly with the father or of agencies with authority to consent to adoption, is entirely unaffected by the Court's holding or by its reasoning. In fact, as I read the Court's opinion, the statutes now in effect may be enforced as usual unless "the adoption of an older child is sought," ante, at 392, and "the father has established a substantial relationship with the child and [is willing to admit] his paternity." Ante, at 393. State legislatures will no doubt promptly revise their adoption laws to comply with the rule of this case, but as long as state courts are prepared to construe their existing statutes to contain a requirement of paternal consent "in cases such as this," ibid., I see no reason why they may not continue to enter valid adoption decrees in the countless routine cases that will arise before the statutes can be amended.29
62
In short, this is an exceptional case that should have no effect on the typical adoption proceeding. Indeed, I suspect that it will affect only a tiny fraction of the cases covered by the statutes that must now be rewritten. Accordingly, although my disagreement with the Court is as profound as that fraction is small, I am confident that the wisdom of judges will forestall any widespread harm.
63
I respectfully dissent.
1
Section 110 of the N.Y.Dom.Rel.Law (McKinney 1977) provides in part:
"An adult or minor husband and his adult or minor wife together may adopt a child of either of them born in or out of wedlock and an adult or minor husband or an adult or minor wife may adopt such a child of the other spouse."
Although a natural mother in New York has many parental rights without adopting her child, New York courts have held that § 110 provides for the adoption of an illegitimate child by his mother. See In re Anonymous Adoption, 177 Misc. 683, 31 N.Y.S.2d 595 (Surr.Ct.1941).
2
Section 117 of the N.Y.Dom.Rel.Law (McKinney 1977) provides, in part, that
"After the making of an order of adoption the natural parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his property by descent or succession, except as hereinafter stated."
As an exception to this general rule, § 117 provides that
"When a natural or adoptive parent, having lawful custody of a child, married or remarried and consents that the stepfather or stepmother may adopt such child, such consent shall not relieve the parent so consenting of any parental duty toward such child nor shall such consent or the order of adoption affect the rights of such consenting spouse and such adoptive child to inherit from and through each other and the natural and adopted kindred of such consenting spouse."
In addition, § 117(2) provides that adoption shall not affect a child's right to distribution of property under his natural parents' will.
3
As the appellant was given due notice and was permitted to participate as a party in the adoption proceedings, he does not contend that he was denied the procedural due process held to be requisite in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).
4
At the time of the proceedings before the Surrogate, § 111, as amended by 1975 N.Y.Laws, chs. 246 and 704, provided:
"Subject to the limitations hereinafter set forth consent to adoption shall be required as follows:
"1. Of the adoptive child, if over fourteen years of age, unless the judge or surrogate in his discretion dispenses with such consent;
"2. Of the parents or surviving parent, whether adult or infant, of a child born in wedlock;
"3. Of the mother, whether adult or infant, of a child born out of wedlock;
"4. Of any person or authorized agency having lawful custody of the adoptive child.
"The consent shall not be required of a parent who has abandoned the child or who has surrendered the child to an authorized agency for the purpose of adoption under the provisions of the social services law or of a parent for whose child a guardian has been appointed under the provisions of section three hundred eighty-four of the social services law or who has been deprived of civil rights or who is insane or who has been judicially declared incompetent or who is mentally retarded as defined by the Mental Hygiene Law or who has been adjudged to be an habitual drunkard or who has been judicially deprived of the custody of the child on account of cruelty or neglect, or pursuant to a judicial finding that the child is a permanently neglected child as defined in section six hundred eleven of the family court act of the state of New York; except that notice of the proposed adoption shall be given in such manner as the judge or surrogate may direct and an opportunity to be heard thereon may be afforded to a parent who has been deprived of civil rights and to a parent if the judge or surrogate so orders. Notwithstanding any other provision of law, neither the notice of a proposed adoption nor any process in such proceeding shall be required to contain the name of the person or persons seeking to adopt the child. For the purposes of this section, evidence of insubstantial and infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a finding that such parent has abandoned such child.
"Where the adoptive child is over the age of eighteen years the consents specified in subdivisions two and three of this section shall not be required, and the judge or surrogate in his discretion may direct that the consent specified in subdivision four of this section shall not be required if in his opinion the moral and temporal interests of the adoptive child will be promoted by the adoption and such consent cannot for any reason be obtained.
"An adoptive child who has once been lawfully adopted may be readopted directly from such child's adoptive parents in the same manner as from its natural parents. In such case the consent of such natural parents shall not be required but the judge or surrogate in his discretion may require that notice be given to the natural parents in such manner as he may prescribe."
5
See In re Corey L. v. Martin L., 45 N.Y.2d 383, 391, 408 N.Y.S.2d 439, 442, 380 N.E.2d 266, 270 (1978):
"Absent consent, the first focus here was on the issue of abandonment since neither decisional rule nor statute can bring the relationship to an end because someone else might rear the child in a more satisfactory fashion . . .. Abandonment, as it pertains to adoption, relates to such conduct on the part of a parent as evinces a purposeful ridding of parental obligations and the foregoing of parental rights—a withholding of interest, presence, affection, care and support. The best interests of the child, as such, is not an ingredient of that conduct and is not involved in this threshold question. While promotion of the best interests of the child is essential to ultimate approval of the adoption application, such interests cannot act as a substitute for a finding of abandonment." (Citations omitted.)
6
The dissents speculate that the sex-based distinction of § 111 might not apply to those unwed fathers who obtain legal custody of their children. See post, at 395, and at 412-413, n. 23. But no New York court has so ruled. Indeed, one court has indicated that, at least with respect to legitimate children, the provision in § 111(4) giving legal guardians a veto over the adoption of their wards applies only if the natural parents are dead. See In re Mendelsohn's Adoption, 180 Misc. 147, 149, 39 N.Y.S.2d 384, 386 (Surr.Ct.1943). We should not overlook, therefore, the New York courts' exclusive reliance upon § 111(3) and instead speculate whether, if Caban had sought and obtained legal custody of his children, his legal rights would have been different under New York law.
7
In rejecting an unmarried father's constitutional claim in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), we emphasized the importance of the appellant's failure to act as a father toward his children, noting that 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." Id., at 256, 98 S.Ct., at 555.
In Quilloin, we expressly reserved the question whether the Georgia statute similar to § 111 of the New York Domestic Relations Law unconstitutionally distinguished unwed parents according to their gender, as the claim was not properly presented. See 434 U.S., at 253 n. 13, 98 S.Ct., at 554.
8
Consent of the unmarried father has never been required for adoption under New York law, although parental consent otherwise has been required at least since the late 19th century. See, e. g., 1896 N.Y. Laws, ch. 272. There are no legislative reports setting forth the reasons why the New York Legislature excepted unmarried fathers from the general requirement of parental consent for adoption.
9
In Orsini v. Blasi, 423 U.S. 1042, 96 S.Ct. 765, 46 L.Ed.2d 642 (1976), the Court dismissed an appeal from the New York Court of Appeals challenging the constitutionality of § 111 as applied to an unmarried father whose child had been ordered adopted by a New York Family Court. In dismissing the appeal, we indicated that a substantial federal question was lacking. This was a ruling on the merits, and therefore is entitled to precedential weight. See Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975). At the same time, however, our decision not to review fully the questions presented in Orsini v. Blasi is not entitled to the same deference given a ruling after briefing, argument, and a written opinion. See Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974). Insofar as our decision today is inconsistent with our dismissal in Orsini, we overrule our prior decision.
10
In his brief as amicus curiae, the New York Attorney General echoes the New York Court of Appeals' exposition in In re Malpica-Orsini of the interests promoted by § 111's different treatment of unmarried fathers. See Brief for New York Attorney General, as Amicus Curiae 16-20.
11
Because the question is not before us, we express no view whether such difficulties would justify a statute addressed particularly to newborn adoptions, setting forth more stringent requirements concerning the acknowledgment of paternity or a stricter definition of abandonment.
12
See Comment, The emerging Constitutional Protection of the Putative Father's Parental Rights, 70 Mich.L.Rev. 1581, 1590 (1972).
13
If the New York Court of Appeals is correct that unmarried fathers often desert their families (a view we need not question), then allowing those fathers who remain with their families a right to object to the termination of their parental rights will pose little threat to the State's ability to order adoption in most cases. For we do not question a State's right to do what New York has done in this portion of § 111: provide that fathers who have abandoned their children have no right to block adoption of those children.
We do not suggest, of course, that the provision of § 111 making parental consent unnecessary in cases of abandonment is the only constitutional mechanism available to New York for the protection of its interest in allowing the adoption of illegitimate children when their natural fathers are not available to be consulted. In reviewing the constitutionality of statutory classifications, "it is not the function of a court 'to hypothesize independently on the desirability or feasibility of any possible alternative[s]' to the statutory scheme formulated by [the State]." Lalli v. Lalli, 439 U.S. 259, 274, 99 S.Ct. 518, 528, 58 L.Ed.2d 503 (1978) (quoting Mathews v. Lucas, 427 U.S. 495, 515, 96 S.Ct. 2755, 2767, 49 L.Ed.2d 651 (1976)). We note some alternatives to the gender-based distinction of § 111 only to emphasize that the state interests asserted in support of the statutory classification could be protected through numerous other mechanisms more closely attuned to those interests.
14
In Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), we noted the importance in cases of this kind of the relationship that in fact exists between the parent and child. See n. 7, supra.
15
States have a legitimate interest, of course, in providing that an unmarried father's right to object to the adoption of a child will be conditioned upon his showing that it is in fact his child. Cf. Lalli v. Lalli, supra, 439 U.S., at 268-269, 99 S.Ct., at 524-525. Such is not, however, the import of the New York statute here. Although New York provides for actions in its Family Courts to establish paternity, N.Y. Family Court Act §§ 511 to 571 (McKinney 1975 and Supp. 1978-1979), there is no provision allowing men who have been determined by the court to be the father of a child born out of wedlock to object to the adoption of their children under § 111.
16
Appellant also challenges the constitutionality of the distinction made in § 111 between married and unmarried fathers. As we have resolved that the sex-based distinction of § 111 violates the Equal Protection Clause, we need express no view as to the validity of this additional classification.
Finally, appellant argues that he was denied substantive due process when the New York courts terminated his parental rights without first finding him to be unfit to be a parent. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (semble). Because we have ruled that the New York statute is unconstitutional under the Equal Protection Clause, we similarly express no view as to whether a State is constitutionally barred from ordering adoption in the absence of a determination that the parent whose rights are being terminated is unfit.
*
New York Dom.Rel. Law § 111(1)(d) (McKinney 1977) requires the consent of "any person or authorized agency having lawful custody of the adoptive child."
1
The children are presently 8 and 9 years old. At the time of the hearing before the Surrogate Court, they were 5 and 6.
2
Illegitimate births accounted for an estimated 14.7% and 15.5% of all births in the United States during the years 1976 and 1977, respectively. See U.S. Dept. of HEW, National Center for Health Statistics, 27 Vital Statistics Report, No. 11, p. 19 (1979); 26 Vital Statistics Report, No. 12, p. 17 (1978). In total births, this represents 468,100 and 515,700 illegitimate births, respectively. Although statistics for New York State are not available, the problem of illegitimacy appears to be especially severe in urban areas. For example, in 1975, over 50% of all births in the District of Columbia were out of wedlock. U.S. Dept. of Hew, National Center for Health Statistics, 1 Vital Statistics of the United States, 1975 (Natality), 50 (1978).
Adoption is an important solution to the problem of illegitimacy. Thus, about 70% of the adoptions in the 34 States reporting to HEW in 1975 were of children born out of wedlock. The figure for New York State was 78%. U.S. Dept. of HEW, National Center for Social Statistics, Adoptions in 1975, p. 11 (1977) (hereinafter Adoptions in 1975).
3
The reason I say "perhaps" is that the word "compelling" can be understood in different ways. If it describes an interest that "compels" a conclusion that any statute intended to foster that interest is automatically constitutional, few if any interests would fit that description. On the other hand, if it merely describes an interest that compels a court, before holding a law unconstitutional, to give thoughtful attention to a legislative judgment that the law will serve that interest, then the State's interest in facilitating adoption in appropriate cases is unquestionably compelling. See Smith v. Organization of Foster Families, 431 U.S. 816, 844, and n. 51, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14, id., at 861-862, 97 S.Ct., at 2118-2119 (STEWART, J., concurring in judgment); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768; Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551; In re Malpica-Orsini, 36 N.Y.2d 568, 571-574, 370 N.Y.S.2d 511, 514-518, 331 N.E.2d 486, 488-491 (1975).
4
Although not all men are included in the disadvantaged class, since under § 111(1)(b) married fathers are given consent rights, it is nonetheless true that but for their gender the members of that class would not be disadvantaged. Hence, it is not possible to avoid the conclusion that the classification here is one based on gender. See Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 711, 98 S.Ct. 1370, 1377, 55 L.Ed.2d 657.
5
Section 111 treats illegitimate children somewhat differently from legitimate ones insofar as the former, but not the latter, may be removed from one or both of their natural parents and placed in an adoptive home without the consent of both parents. Nonetheless, appellant has not challenged the statute on this basis either on his or his children's behalf, and the difficult questions that might be raised by such a challenge, compare Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503, with Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31, are not now before us.
6
"For a traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification. Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate; for too much of our history there was the same inertia in distinguishing between black and white. But that sort of stereotyped reaction may have no rational relationship—other than pure prejudicial discrimination—to the stated purpose for which the classification is being made." Mathews v. Lucas, 427 U.S. 495, 520-521, 96 S.Ct. 2755, 2769, 49 L.Ed.2d 651 (STEVENS, J., dissenting).
7
The relevant statistics for New York are not complete. The most comprehensive ones that we have found are for the years 1974 and 1975. Even for those years, however, we could find none that include a breakdown by age of the adoptive children where one of the adoptive parents is in some way related to the child. (New York adoptions by related parents—including ones by relatives other than a natural parent and step-parent—accounted for just over half of all adoptions in 1974 and just under half in 1975.) Nonetheless, of the children adopted by unrelated parents in New York in 1974 and 1975, respectively, 66% and 62% were under 1 year old, and 90% and 88% were under 6 years old. In 1974, moreover, the median age of the child at the time of adoption was 5 months; no similar figure is available for 1975. New York's figures appear to be fairly close to those obtaining nationally. U.S. Dept. of HEW, National Center for Statistics, Adoptions in 1974, pp. 15-16 (1976); Adoptions in 1975, p. 15.
8
Of course, this is not true in every individual case, or perhaps in most cases. Nevertheless, for purposes of equal protection analysis, it probably should be assumed that in the class of cases in which the parties are not equally responsible, the woman has been the aggressor about as often as the man. If this assumption is doubted on the ground that the adverse consequences of conception out of wedlock typically make the woman more cautious because those consequences are more serious for her, that doubt merely reinforces the basic analysis set forth in the text.
9
See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 67-75, 96 S.Ct. 2831, 2840-2844, 49 L.Ed.2d 788.
10
In fact, there is some sociological and anthropological research indicating that by virtue of the symbiotic relationship between mother and child during pregnancy and the initial contact between mother and child directly after birth a physical and psychological bond immediately develops between the two that is not then present between the infant and the father or any other person. E. g., 1 & 2 J. Bowlby, Attachment and Loss (1969, 1973); M. Mahler, The Psychological Birth of the Human Infant (1975).
11
The Court has frequently noted the difficulty of proving paternity in cases involving illegitimate children. E. g., Trimble v. Gordon, supra, 430 U.S., at 770-771, 97 S.Ct., at 1465; Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56. Indeed, these proof problems have been relied upon to justify differential treatment not only of unwed mothers and fathers but also of legitimate and illegitimate children. Parham v. Hughes, 441 U.S. 347, 357-358, 99 S.Ct. 1742, 1748-1749, 60 L.Ed.2d 269 (plurality opinion) Lalli v. Lalli, supra, 439 U.S., at 268-269, 99 S.Ct., at 524-525 (plurality opinion).
12
Although statistics are hard to find in this area, those I have found bear out the proposition that is developed in text as a logical matter. Thus, in "relinquishment adoptions" in California in 1975, natural mothers signed the "relinquishment" documents—papers that release custody of the child to an adoption agency and that must be signed by the parent(s) with custody, or by a judge in cases involving neglect or abandonment by the parent(s) who previously had custody—in 69% of the cases, while natural fathers did so in only 36% of the cases. On the other hand, fathers took no part in over 28% of the relinquishment adoptions, apparently because they never had custody, while the comparable figure for mothers was 3.5%. California Health and Welfare Agency, Characteristics of Relinquishment Adoptions in California, 1970-1975 Tables 11 and 12 (1978).
13
Cf. Part II, infra. Indeed, New York does give unwed fathers ample opportunity to participate in adoption proceedings. In this case, for example, appellant appeared at the adoption hearing with counsel, presented testimony, and was allowed to cross-examine the witnesses offered by appellees. See N.Y.Dom.Rel.L. § 111-a (McKinney 1977 and Supp. 1978-1979); App. 27; ante, at 383. As a substantive matter, the natural father is free to demonstrate, as appellant unsuccessfully tried to do in this case, that the best interests of the child favor the preservation of existing parental rights and forestall cutting off those rights by way of adoption. Had appellant been able to make that demonstration, the result would have been the same as that mandated by the Court's insistence upon paternal as well as maternal consent in these circumstances: neither parent could adopt the child into a new family with a step-parent; both would have parental rights (e. g., visitation); and custody would be determined by the child's best interests.
In this case, although the New York courts made no finding of unfitness on appellant's part, there was ample evidence in the record from which they could draw the conclusion that his relationship with the children had been somewhat intermittent, that it fell far short of the relationship existing between the mother and the children (whether measured by the amount of time spent with the children, the responsibility taken for their care and education, or the amount of resources expended on them), and that judging from appellant's treatment of his first wife and his children by that marriage, there was a real possibility that he could not be counted on for the continued support of the two children and might well be a source of friction between them, the mother, and her new husband. E. g., App. 22, 25; Tr. 4-7, 12-20, 36, 50, 70 (Mar. 19, 1976); Tr. 130-135, 156-157, 162-163 (Apr. 30, 1976).
That conclusion, coupled with Surrogate's finding that the mother's marriage to the adoptive father was "solid and permanent" and that the children were "well cared for and healthy" in the new family, App. 30, surely justifies the Surrogate's ultimate conclusion that the legitimacy and stability to be gained by the children from the adoption far outweighed their loss (and even appellant's) due to the termination of appellant's parental rights. See id., at 28:
"Whatever the motive for [appellant's] opposition to the adoption, the consequences are the same—harassment of the natural mother in her new relationship and embarrassment to [the children] who though living with and being supported in the new family may not in school and elsewhere bear the family name."
14
Marrying the mother would not only legitimate the child but would also assure the father the right to consent to any adoption. See N.Y.Dom.Rel.L. § 111(1)(b) (McKinney 1977).
15
These are not idle interests. A survey of adoptive parents registered on the New York State Adoption Exchange as of January 1975 showed that over 75% preferred to adopt children under 3 years old; over half preferred children under 1 year old. New York Department of Social Services, Adoption in New York State 20 (Program Analysis Report No. 59, July 1975). Moreover, adoption proceedings, even when judicial in nature, have traditionally been expeditious in order to accommodate the needs of all concerned. Thus, 61% of all Family Court adoption proceedings in New York during the fiscal year 1972-1973 were disposed of within 90 days. Nineteenth Annual Report of the Judicial Conference to the Governor of the State of New York and the Legislature 352 (Legislative Doc. No. 90, 1974).
16
Although the Court is careful to leave the States free to develop alternative approaches, it nonetheless endorses the procedure described in text for adoptions of older children against the wishes of natural fathers who have established substantial relationships with the children. Ante, at 392-393, and 393 n. 13.
17
To be effective, any such notice would probably have to name the mother and perhaps even identify her further, for example, by address. Moreover, the terms and placement of the notice in, for example, a newspaper, no matter how discreet and tastefully chosen, would inevitably be taken by the public as an announcement of illegitimate maternity. To avoid the embarrassment of such announcements, the mother might well be forced to identify the father (or potential fathers)—despite her desire to keep that fact a secret.
18
In the opinion upon which it relied in dismissing the appeal in this case, the New York Court of Appeals concluded that the "trauma" that would be added to the adoption process by a paternal consent rule is "unpleasant to envision." In re Malpica-Orsini, 36 N.Y.2d, at 574, 370 N.Y.S.2d, at 517, 331 N.E.2d, at 490. See n. 20, infra.
19
E. g., Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360; Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610.
20
"To require the consent of fathers of children born out of wedlock . . . or even some of them, would have the overall effect of denying homes to the homeless and of depriving innocent children of the other blessings of adoption . The cruel and undeserved out-of-wedlock stigma would continue its visitations. At the very least, the worthy process of adoption would be severely impeded.
"Great difficulty and expense would be encountered, in many instances, in locating the putative father to ascertain his willingness to consent. Frequently, he is unlocatable or even unknown. Paternity is denied more often than admitted. Some birth certificates set forth the names of the reputed fathers, others do not.
"Couples considering adoptions will be dissuaded out of fear of subsequent annoyance and entanglements. A 1961 study in Florida of 500 independent adoptions showed that 16% of the couples who had direct contact with the natural parents reported subsequent harassment, compared with only 2% of couples who had no contact (Isaac, Adopting a Child Today, pp. 38, 116). The burden on charitable agencies will be
oppressive. In independent placements, the baby is usually placed in his adoptive home at four or five days of age, while the majority of agencies do not place children for several months after birth (p. 88). Early private placements are made for a variety of reasons, such as a desire to decrease the trauma of separation and an attempt to conceal the out-of-wedlock birth. It is unlikely that the consent of the natural father could be obtained at such an early time after birth, and married couples, if well advised, would not accept a child, if the father's consent was a legal requisite and not then available. Institutions such as foundling homes which nurture the children for months could not afford to continue their maintenance, in itself not the most desirable, if fathers' consents are unobtainable and the wards therefore unplaceable. These philanthropic agencies would be reluctant to take infants for no one wants to bargain for trouble in an already tense situation. The drain on the public treasury would also be immeasurably greater in regard to infants placed in foster homes and institutions by public agencies.
"Some of the ugliest disclosures of our time involve black marketing of children for adoption. One need not be a clairvoyant to predict that the grant to unwed fathers of the right to veto adoptions will provide a very fertile field for extortion. The vast majority of instances where paternity has been established arise out of filiation proceedings, compulsory in nature, and persons experienced in the field indicate that these legal steps are instigated for the most part by public authorities, anxious to protect the public purse (see Schaschlo v. Taishoff, 2 N.Y.2d 408, 411 [161 N.Y.S.2d 48, 50, 141 N.E.2d 562, 563]). While it may appear, at first blush, that a father might wish to free himself of the burden of support, there will be many who will interpret it as a chance for revenge or an opportunity to recoup their 'losses.'
"Marriages would be discouraged because of the reluctance of prospective husbands to involve themselves in a family situation where they might only be a foster parent and could not adopt the mother's offspring.
"We should be mindful of the jeopardy to which existing adoptions would be subjected and the resulting chaos by an unadulterated declaration of unconstitutionality. Even if there be a holding of nonretroactivity, the welfare of children, placed in homes months ago, or longer, and awaiting the institution or completion of legal proceedings, would be seriously affected. The attendant trauma is unpleasant to envision." In re Malpica-Orsini, supra, 36 N.Y.2d, at 572-574, 370 N.Y.S.2d, at 516-517, 331 N.E.2d, at 488-490.
To the limited extent that the Court takes cognizance of these findings and conclusions, it does not dispute them. Ante, at 392, and 392-393,
n. 13. Instead, the Court merely states that many of these findings do not reflect appellant's situation and "need not" reflect the situation of any natural father who is seeking to prevent the adoption of his older children. Ante, at 392.
Although I agree that the findings of the New York Court of Appeals are more likely to be true of the strong majority of adoptions that involve infants than they are in the present situation (a conclusion that should be sufficient to justify the classification drawn by § 111(1)(c) in all situations), I am compelled to point out that the Court marshals not one bit of evidence to bolster its empirical judgment that most natural fathers facing the adoption of their older children will have appellant's relatively exemplary record with respect to admitting paternity and establishing a relationship with his children. In my mind, it is far more likely that what is true at infancy will be true thereafter—the mother will probably retain custody as well as the primary responsibility for the care and upbringing of the child.
21
Vance v. Bradley, 440 U.S. 93, 108, 99 S.Ct. 939, 949, 59 L.Ed.2d 171; Califano v. Jobst, 434 U.S. 47, 56-58, 98 S.Ct. 95, 100-102, 54 L.Ed.2d 228; Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491.
22
Even if the exclusive-consent requirement were limited to new born infants, there would still be an occasional case in which the interests of the child would be better served by a responsible paternal veto than by an irresponsible maternal veto.
23
In fact, although the Court understands it differently the New York statute apparently does turn consent rights on custody. Thus, § 111(1)(d) (McKinney 1977) gives consent rights to "any person . . . having lawful custody of the adoptive child." The New York courts have not had occasion to interpret this section in a situation in which a custodial father is seeking consent rights adverse to the wishes of the mother. Nonetheless, those courts have interpreted "legal custody" in a flexible and practical manner dependent on who actually is acting as the guardian of the child, e. g., In re Erhardt, 27 A.D.2d 836, 277 N.Y.S.2d 734 (1967). Moreover, the Uniform Adoption Act, after which the New York statute appears to be patterned, has a similar section that its drafters intended to benefit "a father having custody of his illegitimate minor child." Uniform Adoption Act, § 5(a)(3), Commissioners' Note, 9 U.L.A. 17 (1973). In this light, the allegedly improper impact of the gender-based classification in § 111(1)(c) as challenged by appellant is even more attenuated than I have suggested because it only disqualifies those few natural fathers of older children who have established a substantial relationship with the child and have admitted paternity, but who nonetheless do not have custody of the children.
24
Insofar as the New York statute allows natural fathers with actual custody of their illegitimate children to consent to the adoption of those children, see n. 23, supra, this issue is far less troublesome. Cf. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.
25
Cf. Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511. See also Smith v. Organization of Foster Families, 431 U.S., at 844, 97 S.Ct., at 2110.
26
See also id., 431 U.S. at 842-847, 97 S.Ct., at 2109-2112; Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62; Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042.
27
Although some Members of the Court have concluded that greater protection is due the "private realm of family life," Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (emphasis added), e. g., Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (plurality opinion), this appeal does not fall within that realm because whatever family life once surrounded appellant, his children, and appellee Maria Mohammed has long since dissolved through no fault of the State's. In fact, it is the State, rather than appellant, that may rely in this case on the importance of the family insofar as it is the State that is attempting to foster the establishment and privacy of new and legitimate adoptive families.
28
See Parham v. Hughes, 441 U.S., at 353, 99 S.Ct., at 1746. Cf. Quilloin v. Walcott, supra, 434 U.S., at 255, 98 S.Ct., at 555, quoting Smith v. Organization of Foster Families, supra, 431 U.S., at 862-863, 97 S.Ct., at 2119 (STEWART, J., concurring in judgment).
29
Cf. Lucas v. Colorado General Assembly, 377 U.S. 713, 739, 84 S.Ct. 1459, 1475, 12 L.Ed.2d 632; Roman v. Sincock, 377 U.S. 695, 711-712, 84 S.Ct. 1449, 1458-1459, 12 L.Ed.2d 620; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 655, 84 S.Ct. 1418, 1429, 12 L.Ed.2d 568; Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (valid elections may go forward pursuant to statutes that have been held unconstitutional as violating the one-person, one-vote rule, when an impending election is imminent and the election machinery is already in progress).
| 12
|
441 U.S. 322
99 S.Ct. 1727
60 L.Ed.2d 250
William Riley HUGHES, Appellant,v.State of OKLAHOMA.
No. 77-1439.
Argued Jan. 9, 1979.
Decided April 24, 1979.
Syllabus
An Oklahoma statute prohibits transporting or shipping outside the State for sale natural minnows seined or procured from waters within the State. Appellant, who holds a Texas license to operate a commercial minnow business in Texas, was charged with violating the Oklahoma statute by transporting from Oklahoma to Texas a load of natural minnows purchased from a minnow dealer licensed to do business in Oklahoma. Appellant's defense that the Oklahoma statute was unconstitutional because it was repugnant to the Commerce Clause was rejected, and he was convicted and fined. The Oklahoma Court of Criminal Appeals affirmed, relying on Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793, which had sustained against a Commerce Clause challenge a Connecticut statute forbidding the transportation beyond the State of game birds that had been lawfully killed within the State. The Geer decision rested on the holding that no interstate commerce was involved, because the State had the power, as representative for its citizens, who "owned" in common all wild animals within the State, to control the "ownership" of game that had been lawfully reduced to possession, and had exercised its power by prohibiting its removal from the State. Held : The Oklahoma statute is repugnant to the Commerce Clause. Pp. 325-339.
(a) Geer v. Connecticut, supra, is overruled. Time has revealed the error of the result reached in Geer through its application of the 19th century legal fiction of state ownership of wild animals. Challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources. Pp. 326-336.
(b) Under that general rule, this Court must inquire whether the challenged statute regulates evenhandedly with only "incidental" effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; whether the statute serves a legitimate local purpose; and, if so, whether alternative means could promote this local purpose as well without discriminating against interstate commerce. P. 336.
(c) The Oklahoma statute on its face discriminates against interstate commerce by forbidding the transportation of natural minnows out of the State for purposes of sale, and thus overtly blocking the flow of interstate commerce at the State's border. The statute is not a "last ditch" attempt at conservation after nondiscriminatory alternatives have proved unfeasible. It is rather a choice of the most discriminatory means even though nondiscriminatory alternatives would seem likely to fulfill the State's purported legitimate local purpose of conservation more effectively. Pp. 336-338.
(d) States may promote the legitimate purpose of protecting and conserving wild animal life within their borders only in ways consistent with the basic principle that the pertinent economic unit is the Nation, and that when a wild animal becomes an article of commerce, its use cannot be limited to the citizens of one State to the exclusion of citizens of another State. Pp. 338-339.
572 P.2d 573, reversed.
R. M. Helton, Wichita Falls, Tex., for appellant.
Bill J. Bruce, Asst. Atty. Gen., of Okl., Oklahoma City, Okl., for the State.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question presented for decision is whether Okl.Stat., Tit. 29, § 4-115(B) (Supp.1978), violates the Commerce Clause, Art. I, § 8, cl. 3, of the United States Constitution, insofar as it provides that "[n]o person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state . . . ."1
2
Appellant William Hughes holds a Texas license to operate a commercial minnow business near Wichita Falls, Tex. An Oklahoma game ranger arrested him on a charge of violating § 4-115(B) by transporting from Oklahoma to Wichita Falls a load of natural minnows purchased from a minnow dealer licensed to do business in Oklahoma. Hughes' defense that § 4-115(B) was unconstitutional because it was repugnant to the Commerce Clause was rejected, and he was convicted and fined. The Oklahoma Court of Criminal Appeals affirmed, stating:
3
"The United States Supreme Court has held on numerous occasions that the wild animals and fish within a state's border are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all its people. Because of such ownership, and in the exercise of its police power, the state may regulate and control the taking, subsequent use and property rights that may be acquired therein. Lacoste v. Department of Conservation, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437 (1928); Geer v. State of Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896) . . . . As stated in Lacoste, supra, protection of the wildlife of a state is peculiarly within the police power of the state, and the state has great latitude in determining what means are appropriate for its protection.
4
" . . . Oklahoma law does not prohibit commercial minnow hatcheries within her borders from selling stock minnows to anyone, resident or nonresident, and minnows purchased therefrom may be freely exported. However, the law served to protect against the depletion of minnows in Oklahoma's natural streams through commercial exportation. No person is allowed to export natural minnows for sale outside of Oklahoma. Such a prohibition is not repugnant to the commerce clause . . . ." 572 P.2d 573, 575 (1977).
5
We noted probable jurisdiction, 439 U.S. 815, 99 S.Ct. 74, 58 L.Ed.2d 106 (1978). We reverse. Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896), on which the Court of Criminal Appeals relied, is overruled. In that circumstance, § 4-115(B) cannot survive appellant's Commerce Clause attack.
6
* The few simple words of the Commerce Clause—"The Congress shall have Power . . . To regulate Commerce . . . among the several States . . . "—reflected a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation. See H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 533-534, 69 S.Ct. 657, 662-663, 93 L.Ed. 865 (1949). The Commerce Clause has accordingly been interpreted by this Court not only as an authorization for congressional action, but also, even in the absence of a conflicting federal statute, as a restriction on permissible state regulation.2 The cases defining the scope of permissible state regulation in areas of congressional silence reflect an often controversial evolution of rules to accommodate federal and state interests.3 Geer v. Connecticut was decided relatively early in that evolutionary process. We hold that time has revealed the error of the early resolution reached in that case, and accordingly Geer is today overruled.
7
* Geer sustained against a Commerce Clause challenge a statute forbidding the transportation beyond the State of game birds that had been lawfully killed within the State.4 The decision rested on the holding that no interstate commerce was involved. This conclusion followed in turn from the view that the State had the power, as representative for its citizens, who "owned" in common all wild animals within the State, to control not only the taking of game but also the ownership of game that had been lawfully reduced to possession.5 By virtue of this power, Connecticut could qualify the ownership of wild game taken within the State by, for example, prohibiting its removal from the State: "The common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose." 161 U.S., at 530, 16 S.Ct., at 605. Accordingly, the State's power to qualify ownership raised serious doubts whether the sale or exchange of wild game constituted "commerce" at all; in any event the Court held that the qualification imposed by the challenged statute removed any transactions involving wild game killed in Connecticut from interstate commerce.6
8
Mr. Justice Field and the first Mr. Justice Harlan dissented, rejecting as artificial and formalistic the Court's analysis of "ownership" and "commerce" in wild game. They would have affirmed the State's power to provide for the protection of wild game, but only "so far as such protection . . . does not contravene the power of Congress in the regulation of interstate commerce."7 Their view was that "[w]hen any animal . . . is lawfully killed for the purposes of food or other uses of man, it becomes an article of commerce, and its use cannot be limited to the citizens of one State to the exclusion of citizens of another State."8
B
9
The view of the Geer dissenters increasingly prevailed in subsequent cases. Indeed, not only has the Geer analysis been rejected when natural resources other than wild game were involved, but even state regulations of wild game have been held subject to the strictures of the Commerce Clause under the pretext of distinctions from Geer.
10
The erosion of Geer began only 15 years after it was decided. A Commerce Clause challenge was addressed to an Oklahoma statute designed to prohibit the transportation beyond the State of natural gas produced by wells within the State. West v. Kansas Natural Gas Co., 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716 (1911). Based on reasoning parallel to that in Geer, Oklahoma urged its right to "conserve" the gas for the use of its own citizens, stressing the limited supply and the absence of alternative sources of fuel within the State. Nevertheless, the Court, in a passage reminiscent of the dissents in Geer, condemned the obvious protectionist motive in the Oklahoma statute and rejected the State's arguments with a powerful reaffirmation of the vision of the Framers:
11
"The statute of Oklahoma recognizes [gas] to be a subject of intrastate commerce, but seeks to prohibit it from being the subject of interstate commerce, and this is the purpose of its conservation. . . . If the States have such power a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining States their minerals. And why may not the products of the field be brought within the principle? Thus enlarged, or without that enlargement, its influence on interstate commerce need not be pointed out. To what consequences does such power tend? If one State has it, all States have it; embargo may be retaliated by embargo, and commerce will be halted at state lines. And yet we have said that 'in matters of foreign and interstate commerce there are no state lines.' In such commerce, instead of the States, a new power appears and a new welfare, a welfare which transcends that of any State. But rather let us say it is constituted of the welfare of all of the States and that of each State is made the greater by a division of its resources, natural and created, with every other State, and those of every other State with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States. If there is to be a turning backward it must be done by the authority of another instrumentality than a court." 221 U.S., at 255-256, 31 S.Ct., at 571.
12
The Court distinguished discriminatory or prohibitory regulations offensive to the Commerce Clause, such as the Oklahoma statute, from a valid "exercise of the police power to regulate the taking of natural gas" that was "universal in its application and justified by the nature of the gas and which allowed its transportation to other states." Id., at 257, 31 S.Ct., at 572; see id., at 252-254, 31 S.Ct., at 570 (distinguishing Ohio Oil Co. v. Indiana, 177 U.S. 190, 20 S.Ct. 576, 44 L.Ed. 729 (1900)).
13
In subsequent Commerce Clause challenges to state regulation of exports of natural resources, the West analysis emerged as the dominant approach. See, e. g., Pennsylvania v. West Virginia, 262 U.S. 553, 598-600, 43 S.Ct. 658, 665-666, 67 L.Ed. 1117 (1923);9 H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949). Today's principle is that stated in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847 (1970):
14
"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. . . . 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." (Citations omitted.)
15
This formulation was employed only last Term to strike down New Jersey's attempt to "conserve" the natural resource of landfill areas within the State for the disposal of waste generated within the State. Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978).
16
The Geer analysis has also been eroded to the point of virtual extinction in cases involving regulation of wild animals. The first challenge to Geer's theory of a State's power over wild animals came in Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). The State of Missouri, relying on the theory of state ownership of wild animals, attacked the Migratory Bird Treaty Act on the ground that it interfered with the State's control over wild animals within its boundaries. Writing for the Court, Mr. Justice Holmes upheld the Act as a proper exercise of the treatymaking power. He commented in passing on the artificiality of the Geer rationale: "To put the claim of the State upon title is to lean upon a slender reed." 252 U.S., at 434, 40 S.Ct., at 384.
17
Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147 (1928), undermined Geer even more directly. A Louisiana statute forbade the transportation beyond the State of shrimp taken in Louisiana waters until the heads and shells had been removed.10 The statute clearly relied on the Geer state-control-of-ownership rationale.11 Anyone lawfully taking shrimp from Louisiana waters was granted "a qualified interest which may be sold within the State." Only after the head and shell had been removed within the State did the taker or possessor acquire "title and the right to sell and ship the same 'beyond the limit[s] of the State, without restriction or reservation.' " 278 U.S., at 8, 49 S.Ct., at 3.
18
Ignoring the niceties of "title" to the shrimp and concentrating instead on the purposes and effects of the statute, Foster-Fountain Packing struck down the statute as economic protectionism abhorrent to the Commerce Clause. The analysis resembled that employed in the natural gas cases, which were cited with approval, id., at 10-11, 13, 49 S.Ct., at 3-4, 5.12 Geer was distinguished on the ground that there "[n]o part of the game was permitted by the statute to become an article of interstate commerce." 278 U.S., at 12, 49 S.Ct., at 4.13 Limiting Geer to cases involving complete embargoes on interstate commerce in a wild animal created the anomalous result that the most burdensome laws enjoyed the most protection from Commerce Clause attack.
19
Foster-Fountain Packing's implicit shift away from Geer's formalistic "ownership" analysis became explicit in Toomer v. Witsell, 334 U.S. 385, 402, 68 S.Ct. 1156, 1165, 92 L.Ed. 1460 (1948), which struck down as violations of the Commerce Clause and the Privileges and Immunities Clause certain South Carolina laws discriminating against out-of-state commercial fishermen:
20
"The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource. And there is no necessary conflict between that vital policy consideration and the constitutional command that the State exercise that power, like its other powers, so as not to discriminate without reason against citizens of other States."
21
Although stated in reference to the Privileges and Immunities Clause challenge, this reasoning is equally applicable to the Commerce Clause challenge.14 Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977), dispelled any doubts on that score. In rejecting the argument that Virginia's "ownership" of fish swimming in its territorial waters empowered the State to forbid fishing by federally licensed ships owned by nonresidents while permitting residents to fish, Seacoast Products explicitly embraced the analysis of the Geer dissenters:
22
"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. . . . Geer v. Connecticut, 161 U.S. 519, 539-540, 16 S.Ct. 600, 608, 40 L.Ed. 793 (1896) (Field, J., dissenting). The 'ownership' language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.' [Citing Toomer. ] Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution." 431 U.S., at 284, 97 S.Ct., at 1751.15
C
23
The case before us is the first in modern times to present facts essentially on all fours with Geer.16 We now conclude that challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources, and therefore expressly overrule Geer. We thus bring our analytical framework into conformity with practical realities. Overruling Geer also eliminates the anomaly, created by the decisions distinguishing Geer, that statutes imposing the most extreme burdens on interstate commerce (essentially total embargoes) were the most immune from challenge. At the same time, the general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th-century legal fiction of state ownership.
II
24
We turn then to the question whether the burden imposed on interstate commerce in wild game by § 4-115(B) is permissible under the general rule articulated in our precedents governing other types of commerce. See, e. g., Pike v. Bruce Church, Inc., 397 U.S., at 142, 90 S.Ct., at 847, quoted, supra, at 331. Under that general rule, we must inquire (1) whether the challenged statute regulates evenhandedly with only "incidental" effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce. The burden to show discrimination rests on the party challenging the validity of the statute, but "[w]hen discrimination against commerce . . . is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake." Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 353, 97 S.Ct. 2434, 2446, 53 L.Ed.2d 383 (1977). Furthermore, when considering the purpose of a challenged statute, this Court is not bound by "[t]he name, description or characterization given it by the legislature or the courts of the State," but will determine for itself the practical impact of the law. Lacoste v. Louisiana Dept. of Conservation, 263 U.S. 545, 550, 44 S.Ct. 186, 188, 68 L.Ed. 437 (1924); see Foster-Fountain Packing Co. v. Haydel, 278 U.S., at 10, 49 S.Ct., at 3; Pike v. Bruce Church, Inc., supra.
25
Section 4-115(B) on its face discriminates against interstate commerce. It forbids the transportation of natural minnows out of the State for purposes of sale, and thus "overtly blocks the flow of interstate commerce at [the] State's borders." Philadelphia v. New Jersey, 437 U.S., at 624, 98 S.Ct., at 2535. Such facial discrimination by itself may be a fatal defect, regardless of the State's purpose, because "the evil of protectionism can reside in legislative means as well as legislative ends." Id., 437 U.S., at 626, 98 S.Ct., at 2537.17 At a minimum such facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.
26
Oklahoma argues that § 4-115(B) serves a legitimate local purpose in that it is "readily apparent as a conservation measure." Brief for Appellee 8. The State's interest in maintaining the ecological balance in state waters by avoiding the removal of inordinate numbers of minnows may well qualify as a legitimate local purpose. We consider the States' interests in conservation and protection of wild animals as legitimate local purposes similar to the States' interests in protecting the health and safety of their citizens. See, e. g., Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 89 S.Ct. 323, 21 L.Ed.2d 289 (1968). But the scope of legitimate state interests in "conservation" is narrower under this analysis than it was under Geer. A State may no longer "keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose." Greer v. Connecticut, 161 U.S., at 530, 16 S.Ct., at 605. The fiction of state ownership may no longer be used to force those outside the State to bear the full costs of "conserving" the wild animals within its borders when equally effective nondiscriminatory conservation measures are available.
27
Far from choosing the least discriminatory alternative, Oklahoma has chosen to "conserve" its minnows in the way that most overtly discriminates against interstate commerce. The State places no limits on the numbers of minnows that can be taken by licensed minnow dealers; nor does it limit in any way how these minnows may be disposed of within the State.18 Yet it forbids the transportation of any commercially significant number of natural minnows out of the State for sale.19 Section 4-115(B) is certainly not a "last ditch" attempt at conservation after nondiscriminatory alternatives have proved unfeasible. It is rather a choice of the most discriminatory means even though nondiscriminatory alternatives would seem likely to fulfill the State's purported legitimate local purpose more effectively.20
28
We therefore hold that § 4-115(B) is repugnant to the Commerce Clause.
III
29
The overruling of Geer does not leave the States powerless to protect and conserve wild animal life within their borders. Today's decision makes clear, however, that States may promote this legitimate purpose only in ways consistent with the basic principle that "our economic unit is the Nation,"H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S., at 537, 69 S.Ct., at 665, and that when a wild animal "becomes an article of commerce . . . its use cannot be limited to the citizens of one State to the exclusion of citizens of another State." Geer v. Connecticut, supra, 161 U.S., at 538, 16 S.Ct., at 608 (Field, J., dissenting).
30
Reversed.
31
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
32
This Court's seeming preoccupation in recent years with laws relating to wildlife must, I suspect, appear curious to casual observers of this institution.1 It is no more curious, however, than this Court's recent pronouncements on the validity of Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896). For less than one year ago we unreservedly reaffirmed the principles announced in Geer. Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371, 386, 98 S.Ct. 1852, 1861, 56 L.Ed.2d 354 (1978). Today, the Court overrules that decision. Because I disagree with the Court's overruling of Geer and holding that Oklahoma's law relating to the sale of minnows violates the Commerce Clause, I dissent.
33
In its headlong rush to overrule Geer, the Court characterizes that decision as "rest[ing] on the holding that no interstate commerce was involved." Ante, at 327. It is true that one of the rationales relied on by the Geer Court was that the State could exercise its power to control the killing and ownership of animals ferae naturae to prohibit such game from leaving the borders of the State and thus prevent the game from ever becoming the objects of interstate commerce. 161 U.S., at 530-532, 16 S.Ct., at 604-605. Since the Court in Geer was of the view that the challenged statute effectively prevented certain game from entering the stream of interstate commerce, there could be no basis for a Commerce Clause challenge to the State's law. Id., 161 U.S., at 530, 532, 16 S.Ct. 600.2 I do not dispute the Court's rejection of this theory; as the Court points out, this rationale was rejected long before today. Ante, at 329; see West v. Kansas Natural Gas Co., 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716 (1911). My objection is that this line of reasoning, while undoubtedly considered important by the majority in Geer, is unnecessary to sustain that decision3 and is unneeded in the disposition of the present case. And no one—not the Oklahoma Court of Criminal Appeals or the State in this Court—contends that the minnows at issue are not the subjects of interstate commerce. It is obvious that the Court has simply set this theory up as a sort of strawman to facilitate the toppling of a decision which, in other respects, enunciates principles that have remained valid and vital, albeit somewhat refined, at least until today.4
34
The Court in Geer expressed the view derived from Roman law that the wild fish and game located within the territorial limits of a State are the common property of its citizens and that the State, as a kind of trustee, may exercise this common "ownership" for the benefit of its citizens. 161 U.S., at 529, 16 S.Ct., at 604. Admittedly, a State does not "own" the wild creatures within its borders in any conventional sense of the word.5 Baldwin v. Montana Fish & Game Comm'n, supra, 436 U.S., at 386, 98 S.Ct., at 1861; Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284, 97 S.Ct. 1740, 1751, 52 L.Ed.2d 304 (1977); Toomer v. Witsell, 334 U.S. 385, 401-402, 68 S.Ct. 1156, 1164-1165, 92 L.Ed. 1460 (1948); Missouri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 383, 64 L.Ed. 641 (1920). But the concept expressed by the "ownership" doctrine is not obsolete. Baldwin v. Montana Fish & Game Comm'n, supra, 436 U.S., at 392, 98 S.Ct., at 1864 (BURGER, C. J., concurring). This Court long has recognized that the ownership language of Geer and similar cases is simply a shorthand way of describing a State's substantial interest in preserving and regulating the exploitation of the fish and game and other natural resources within its boundaries for the benefit of its citizens. 436 U.S., at 386, 98 S.Ct., at 1861; Douglas v. Seacoast Products, Inc., supra, 431 U.S., at 284, 97 S.Ct., at 1751; Toomer v. Witsell, supra, 334 U.S., at 402, 68 S.Ct., at 1165.
35
In recognition of this important state interest, the Court has upheld a variety of regulations designed to conserve and maintain the natural resources of a State. See, e. g., Baldwin v. Montana Fish & Game Comm'n, supra; Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960); Lacoste v. Louisiana Dept. of Conservation, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437 (1924); Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914); Geer v. Connecticut, supra; Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159 (1891); McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1877); Smith v. Maryland, 59 U.S. 71, 18 How. 71, 15 L.Ed. 269 (1855). To be sure, a State's power to preserve and regulate wildlife within its borders is not absolute.6 But the State is accorded wide latitude in fashioning regulations appropriate for protection of its wildlife. Unless the regulation directly conflicts with a federal statute or treaty,Douglas v. Seacoast Products, Inc., supra, 431 U.S., at 283-285, 97 S.Ct., at 1752; Kleppe v. New Mexico, 426 U.S. 529, 546, 96 S.Ct. 2285, 2295, 49 L.Ed.2d 34 (1976); Missouri v. Holland, supra, 252 U.S., at 434, 40 S.Ct., at 384; allocates access in a manner that violates the Fourteenth Amendment, Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); or represents a naked attempt to discriminate against out-of-state enterprises in favor of in-state businesses unrelated to any purpose of conservation, Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 13, 49 S.Ct. 1, 4, 73 L.Ed. 147 (1928), the State's special interest in preserving its wildlife should prevail. And this is true no matter how "Balkanized" the resulting pattern of commercial activity.7
36
The Oklahoma law at issue in this case serves the special interest of the State, as representative of its citizens, in preserving and regulating exploitation of free-swimming minnows found within its waters. "[T]he law serve[s] to protect against the depletion of minnows in Oklahoma's natural streams through commercial exportation." 572 P.2d 573, 575 (Okla.Crim.App.1977). Oklahoma's statutory scheme may not be the most artfully designed to accomplish its purpose.8 But the range of regulations that a State may adopt under these circumstances is extremely broad, particularly where, as here, the burden on interstate commerce is, at most, minimal. See Douglas v. Seacoast Products, Inc., 431 U.S., at 288, 97 S.Ct., at 1753 (Rehnquist, J., concurring in part and dissenting in part); Lacoste v. Louisiana Dept. of Conservation, supra, 263 U.S., at 552, 44 S.Ct., at 188; cf. Baldwin v. Fish & Game Comm'n, 436 U.S., at 391, 98 S.Ct., at 1864; Kleppe v. New Mexico, supra, 426 U.S., at 545, 96 S.Ct., at 2294.
37
Contrary to the view of the Court, I do not think that Oklahoma's regulation of the commercial exploitation of natural minnows either discriminates against out-of-state enterprises in favor of local businesses or that it burdens the interstate commerce in minnows. At least, no such showing has been made on the record before us. Cf. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 154, 83 S.Ct. 1210, 1223, 10 L.Ed.2d 248 (1963). This is not a case where a State's regulation permits residents to export naturally seined minnows but prohibits nonresidents from so doing. No person is allowed to export natural minnows for sale outside of Oklahoma; the statute is evenhanded in its application. See Okl.Stat., Tit. 29, § 4-115(B) (Supp. 1978). The State has not used its power to protect its own citizens from outside competition. SeeHunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949). Nor is this a case where a State requires a nonresident business, as a condition to exporting minnows, to move a significant portion of its operations to the State or to use certain state resources in pursuit of its business for the benefit of the local economy. SeeToomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948); Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147 (1928); Johnson v. Haydel, 278 U.S. 16, 49 S.Ct. 6, 73 L.Ed. 155 (1928); cf. Pike v. Bruce Church, Inc., 397 U.S. 137, 145, 90 S.Ct. 844, 849, 25 L.Ed.2d 174 (1970). And, notwithstanding the Court's protestations to the contrary, Oklahoma has not blocked the flow of interstate commerce in minnows at the State's borders. See ante, at 336-337. Appellant, or anyone else, may freely export as many minnows as he wishes, so long as the minnows so transported are hatchery minnows and not naturally seined minnows. On this record, I simply fail to see how interstate commerce in minnows, the commodity at issue here, is impeded in the least by Oklahoma's regulatory scheme.9
38
Oklahoma does regulate the manner in which both residents and nonresidents procure minnows to be sold outside the State. But there is no showing in this record that requiring appellant to purchase his minnows from hatcheries instead of from persons licensed to seine minnows from the State's waters in any way increases appellant's costs of doing business. There also is nothing in the record to indicate that naturally seined minnows are any more desirable as items of commerce than hatchery minnows. So far as the record before us indicates, hatchery minnows and naturally seined minnows are fungible. Accordingly, any minimal burden that may result from requiring appellant to purchase minnows destined for sale out of state from hatcheries instead of from those licensed to seine minnows is, in my view, more than outweighed by Oklahoma's substantial interest in conserving and regulating exploitation of its natural minnow population. I therefore would affirm the judgment of the Oklahoma Court of Criminal Appeals.
1
Section 4-115 provides in full:
"A. No person may ship or transport minnows for sale into this state from an outside source without having first procured a license for such from the Director.
"B. No person may transport or ship minnows for sale outside the state
which were seined or procured within the waters of this state except that:
"1. Nothing contained herein shall prohibit any person from leaving the state possessing three (3) dozen or less minnows;
"2. Nothing contained herein shall prohibit sale and shipment of minnows raised in a regularly licensed commercial minnow hatchery.
"C. The fee for a license under this section shall be:
"1. For residents, One Hundred Dollars ($100.00);
"2. For nonresidents, Three Hundred Dollars ($300.00).
"D. Any person convicted of violating any provisions of this section shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than Two Hundred Dollars ($200.00)."
The prohibition against transportation out of State for sale thus does not apply to hatchery-bred minnows, but only to "natural" minnows seined or procured from waters within the State.
Section 4-115(B) is part of the Oklahoma Wildlife Conservation Code. Another provision of that Code requires that persons have a minnow dealer's license before they can lawfully seine or trap minnows within the State—except for their own use as bait—§ 4-116 (Supp. 1978), but no limit is imposed on the number of minnows a licensed dealer may take from state waters. Nor is there any regulation except § 4-115(B) concerning the disposition of lawfully acquired minnows; they may be sold within Oklahoma to any person and for any purpose, and may be taken out of the State for any purpose except sale.
2
"The Commerce Clause is one of the most prolific sources of national power and an equally prolific source of conflict with legislation of the state. While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences of the Constitution." H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S., at 534-535, 69 S.Ct., at 663.
Philadelphia v. New Jersey, 437 U.S. 617, 621-623, 98 S.Ct. 2531, 2534-2535, 57 L.Ed.2d 475 (1978), made clear that there is no "two-tired definition of commerce." The definition of "commerce" is the same when relied on to strike down or restrict state legislation as when relied on to support some exertion of federal control or regulation.
3
See, e. g., Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 209, 6 L.Ed. 23 (1824); Willson v. Black Bird Creek Marsh Co., 27 U.S. 245, 2 Pet. 245, 7 L.Ed. 412 (1829); Cooley v. Board of Wardens, 53 U.S. 299, 12 How. 299, 13 L.Ed. 996 (1852); Port Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders, 234 U.S. 317, 34 S.Ct. 821, 58 L.Ed. 1330 (1914); Di Santo v. Pennsylvania, 273 U.S. 34, 47 S.Ct. 267, 71 L.Ed. 524 (1927); Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943); Southern Pacific Co. v. Arizona ex rel. Sullivian, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945); H.P. Hood & Sons, Inc. v. Du Mond, supra; Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). See generally, F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite (1937); Dowling, Interstate Commerce and State Power, 27 Va.L.Rev. 1 (1940); Dowling, Interstate Commerce and State Power—Revised Version, 47 Colum.L.Rev. 547 (1947).
4
"[T]he sole issue which the case presents is, was it lawful under the Constitution of the United States (section 8, Article I) for the State of Connecticut to allow the killing of birds within the State during a designated open season, to allow such birds, when so killed, to be used, to be sold and to be bought for use within the State, and yet to forbid their transportation beyond the State? Or, to state it otherwise, had the State of Connecticut the power to regulate the killing of game within her borders so as to confine its use to the limits of the State and forbid its transmission outside of the State?" 161 U.S., at 522, 16 S.Ct., at 601.
5
Id., at 522-529, 16 S.Ct., at 601-604. The Court has recognized that Geer's analysis of the authorities on this issue is open to question. Toomer v. Witsell, 334 U.S. 385, 402 n. 37, 68 S.Ct. 1156, 1165 n. 37, 92 L.Ed. 1460 (1948).
6
"The qualification which forbids [the game's] removal from the State necessarily entered into and formed part of every transaction on the subject, and deprived the mere sale or exchange of these articles of that element of freedom of contract and of full ownership which is an essential
attribute of commerce. Passing, however, as we do, the decision of this question, and granting that the dealing in game killed within the State, under the provision in question, created internal State commerce, it does not follow that such internal commerce became necessarily the subject-matter of interstate commerce, and therefore under the control of the Constitution of the United States.
* * * * *
" . . . The power of the State to control the killing of and ownership in game being admitted, the commerce in game, which the state law permitted, was necessarily only internal commerce, since the restriction that it should not become the subject of external commerce went along with the grant and was a part of it." 161 U.S., at 530-532, 16 S.Ct., at 604-605.
Our Brother REHNQUIST suggests that the Court in Geer offered as an "alternative basis for its decision" (in the final paragraph of its 15-page opinion) that the "State, in the exercise of its police power, could act to preserve for its people a valuable food supply, even though interstate commerce was remotely and indirectly affected." Post, at 340 n. 3. That this was not an "alternative basis," however, is made clear in a sentence not quoted by our Brother REHNQUIST:
"The power of a State to protect by adequate police regulation its people against the adulteration of articles of food, . . . although in doing so commerce might be remotely affected, necessarily carries with it the existence of a like power to preserve a food supply which belongs in common to all the people of the State, which can only become the subject of ownership in a qualified way, and which can never be the object of commerce except with the consent of the State and subject to the conditions which it may deem best to impose for the public good." 161 U.S., at 535, 16 S.Ct., at 606 (emphasis added).
Thus, rather than an "alternative basis" independent of the "state ownership" and "no interstate commerce" rationales, this "preservation of a valuable resource" rationale was premised on those rationales. In any event, even if an "alternative basis," this rationale has met the same fate as Geer's primary rationale. See infra, 329-331, and n. 9.
7
161 U.S., at 541, 16 S.Ct., at 609 (Field, J., dissenting); see id., at 543, 16 S.Ct., at 609 (Harlan, J., dissenting).
8
Id., at 538, 541-542, 16 S.Ct., at 608, 609 (Field, J., dissenting); see id., at 543-544, 16 S.Ct., at 609-610 (Harlan, J., dissenting).
9
The inconsistency between the result in this case and that in Geer was not overlooked by the dissenting Justices. See Pennsylvania v. West Virginia, 262 U.S., at 601, 43 S.Ct., at 666 (Holmes, J., dissenting). Significantly, our Brother REHNQUIST relies on this dissent in his discussion of the "alternative basis" of Geer —the "preservation of a valuable natural resource" rationale. See n. 6, supra; post, at 340-341, n. 3. The Court opinion in Pennsylvania v. West Virginia, like that in West, expressly rejected this argument along with the "no interstate commerce" rationale. 262 U.S., at 599-600, 43 S.Ct., at 666.
10
The law challenged in Foster-Fountain Packing Co. was passed in July 1926. The state legislature may have been encouraged to take such action by certain language in Lacoste v. Louisiana Dept. of Conservation, 263 U.S. 545, 44 S.Ct. 186, 68 L.Ed. 437 (1924), language also relied on by the Oklahoma Court of Criminal Appeals in this case. Lacoste upheld a Louisiana "severance" tax on the skins of all wild furbearing animals and alligators taken in the State. The Court cited Geer for the proposition that:
"The wild animals within its borders are, so far as capable of ownership, owned by the State in its sovereign capacity for the common benefit of all of its people. Because of such ownership, and in the exercise of its police power the State may regulate and control the taking, subsequent use and property rights that may be acquired therein." 263 U.S., at 549, 44 S.Ct., at 187.
Nevertheless, Lacoste expressly declined to uphold the tax "by virtue of the power of the State to prohibit, and therefore to condition, the removal of wild game from the State." Ibid. Rather than reach this issue, the Court upheld the measure as a valid police regulation designed to conserve and protect wild animals, noting that the tax applied to all skins taken within the State, whether kept within the State or shipped out. Id., 263 U.S., at 550-551, 44 S.Ct., at 188. Thus, despite its citation of Geer, Lacoste is actually more compatible with the cases following the views of the Justices dissenting in Geer.
11
The preamble to the Act read in part as follows: "To declare all shrimp and parts thereof in the waters of the State to be the property of the State of Louisiana, and to provide the manner and extent of their reduction to private ownership . . . ." Foster-Fountain Packing Co. v. Haydel, 278 U.S., at 5 n., 49 S.Ct., at 2 n.
12
The Court cited these cases for the proposition that "[a] State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State." Id., 278 U.S., at 10, 49 S.Ct., at 4.
13
"As the representative of its people, the State might have retained the shrimp for consumption and use therein. . . . But by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control. Clearly such authorization and the taking in pursuance thereof put an end to the trust upon which the State is deemed to own or control the shrimp for the benefit of its people. And those taking the shrimp under the authority of the Act necessarily thereby become entitled to the rights of private ownership and the protection of the commerce clause." Id., at 13, 49 S.Ct., at 4-5.
14
See Hicklin v. Orbeck, 437 U.S. 518, 531-532, 98 S.Ct. 2482, 2491, 57 L.Ed.2d 397 (1978). The Court distinguished Geer on the same basis used in Foster-Fountain Packing Co., 334 U.S., at 404-406, 68 S.Ct. 1156, 1166-1167. Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420-421, 68 S.Ct. 1138, 1143, 92 L.Ed. 1478, 1487 (1948), decided the same day as Toomer, reviewed the cases distinguishing and questioning Geer and found the State's claim to "ownership" inadequate to justify a ban on commercial fishing by alien residents.
15
"In more recent years . . . 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)." Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371, 385-386, 98 S.Ct. 1852, 1861, 56 L.Ed.2d 354, 366, 367 (1978).
16
See, e. g., Douglas v. Seacoast Products, Inc., 431 U.S. 265, 285 n. 21, 97 S.Ct. 1740, 1752, 52 L.Ed.2d 304 (1977).
17
"[W]hatever [a State's] ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently." Philadelphia v. New Jersey, 437 U.S., at 626-627, 98 S.Ct., at 2536-2537.
18
See n. 1, supra.
19
Section 4-115(B) does not apply to persons transporting three dozen or less natural minnows outside the State. See n. 1, supra.
20
In its brief, Oklahoma argues, apparently for the first time, that the discrimination against out-of-state sales of natural minnows is justified because minnows purchased in the State are more likely to be used for bait in state waters. Brief for Appellee 3. The State contends that minnows "returned" to state waters as bait do not upset the ecological balance as much as those that never "return." The late appearance of this argument and the total absence of any record support for the questionable factual assumptions that underlie it give it the flavor of a post hoc rationalization. The State's bare assertion is certainly inadequate to survive the scrutiny invoked by the facial discrimination of § 4-115(B). In any case, Oklahoma itself concedes that the "return" of natural minnows as bait is irrelevant to most aspects of preserving ecological balance. Brief for Appellee 4.
1
See, e. g., TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (snail darters); Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978) (elk); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977) (menhaden); Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976) (wild horses and burros).
2
"The fact that internal commerce may be distinct from interstate commerce, destroys the whole theory upon which the argument of the plaintiff in error proceeds. The power of the State to control the killing of and ownership in game being admitted, the commerce in game, which the state law permitted, was necessarily only internal commerce, since the restriction that it should not become the subject of external commerce went along with the grant and was a part of it." Geer v. Connecticut, 161 U.S., at 532, 16 S.Ct., at 605.
3
The Court in Geer assigned an alternative basis for its decision. The Court held that a State, in the exercise of its police power, could act to preserve for its people a valuable food supply, even though interstate commerce was remotely and indirectly affected.
"Aside from the authority of the State, derived from the common ownership of game and the trust for the benefit of its people which the State exercises in relation thereto, there is another view of the power of the State in regard to the property in game, which is equally conclusive. The right to preserve game flows from the undoubted existence in the State of a police power to that end, which may be none the less efficiently called into play, because by doing so interstate commerce may be remotely and indirectly affected. Kidd v. Pearson, 128 U.S. 1 [9 S.Ct. 6, 32 L.Ed. 346]; Hall v. De Cuir, 95 U.S. 485 [24 L.Ed. 547]; Sherlock v. Alling, 93 U.S. 99, 103 [23 L.Ed. 819]; Gibbons v. Ogden, [19 U.S.] 9 Wheat. 1 [5 L.Ed. 302]. Indeed, the source of the police power as to game birds (like those covered by the statute here called into question) flows from the duty of the State to preserve for its people a valuable food supply." Id., at 534, 16 S.Ct., at 606.
See also New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 41-42, 29 S.Ct. 10, 12-13, 53 L.Ed. 75, 80 (1908); Pennsylvania v. West Virginia, 262 U.S. 553, 601, 43 S.Ct. 658, 666, 67 L.Ed. 1117 (1923) (Holmes, J., dissenting).
4
Certain of the statements in the Court's opinion provide a basis for some hope that these principles may yet survive the overruling of Geer. See ante, at 337: "We consider the State's interests in conservation and protection of wild animals as legitimate local purposes"; ante, at 338: "The overruling of Geer does not leave the States powerless to protect and conserve wild animal life within their borders."
5
The Geer Court itself did not use the term "ownership" in any proprietary sense. See 161 U.S., at 529, 16 S.Ct., at 604 (" 'We take it to be the correct doctrine in this country, that the ownership of wild animals, so far as they are capable of ownership, is in the State, not as a proprietor but in its sovereign capacity as the representative and for the benefit of all its people in common.' ").
6
Geer recognized limits to the exercise of the State's power to preserve wildlife within its boundaries. See id., at 528, 16 S.Ct., at 604 (this power, which the Colonies possessed, remains in the States "at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution").
7
This view is fully consistent with the balancing approach to Commerce Clause decisionmaking enunciated in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), relied on so heavily by the Court. Ante, at 336. In Pike, the Court stated:
"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. . . . 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." 397 U.S., at 142, 90 S.Ct., at 847.
Given the primacy of the local interest here, in the absence of conflicting federal regulation I would require one challenging a state conservation law on Commerce Clause grounds to establish a far greater burden on interstate commerce than is shown in this case. See infra, at 344-345. See also Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 350, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383 (1977): "[O]ur opinions have long recognized that, 'in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it' "; H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 567, 69 S.Ct. 657, 670, 93 L.Ed. 865 (1949) (Frankfurter, J., dissenting) ("Behind the distinction between 'substantial' and 'incidental' burdens upon interstate commerce is a recognition that, in the absence of federal regulation, it is sometimes—of course not always—of greater importance that local interests be protected than that interstate commerce be not touched."
8
The Court seems to doubt the conservation purpose of the Oklahoma law because the State places no limit on the number of minnows a licensed dealer may take from state waters and imposes no regulation governing the disposition of minnows within the State. Ante, at 337-338, and n. 20. But the State could rationally have concluded that it could adequately preserve its natural minnow population without such additional measures. Tr. of Oral Arg. 18, 20, 21-23. Since, in my view, the prohibition on export of naturally seined minnows imposes little, if any, burden on the interstate commerce in minnows, the State has not violated the Commerce Clause by choosing an export ban on natural minnows as the means to effectuate its special interest in conserving wildlife located within its territorial limits.
9
Thus, even putting aside the decision in Geer and the principles for which it has come to be known and considering the Oklahoma statute "according to the same general rule applied to state regulations of other natural resources," ante, at 335, the Court still has failed to explain how Oklahoma's laws burden or discriminate against interstate commerce in minnows.
| 910
|
441 U.S. 347
99 S.Ct. 1742
60 L.Ed.2d 269
Curtis PARHAM, Appellant,v.Ellis Franklin HUGHES.
No. 78-3.
Argued Jan. 15, 1979.
Decided April 24, 1979.
Syllabus
A Georgia statute, while permitting the mother of an illegitimate child, or the father if he has legitimated the child and there is no mother, to sue for the wrongful death of the child, precludes a father who has not legitimated a child from so suing. Appellant, the father of an illegitimate child, whom he had not legitimated and who was killed, along with the mother, in an automobile accident, sued for the child's wrongful death, and the Georgia trial court, denying a summary judgment for the defendant (appellee), held that the statute violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Georgia Supreme Court reversed, holding that the statutory classification was rationally related to three specified legitimate state interests.
Held : The judgment is affirmed. Pp. 351-359; 359-361.
241 Ga. 198, 243 S.E.2d 867, affirmed.
Mr. Justice STEWART, joined by Mr. CHIEF JUSTICE BURGER, Mr. Justice REHNQUIST, and Mr. Justice STEVENS, concluded that:
1
1. The Georgia statute does not violate the Equal Protection Clause. Pp. 351-358.
2
(a) If the statute is not invidiously discriminatory, it is entitled to a presumption of validity and will be upheld "unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational," Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171. Pp. 351-352.
3
(b) The rationale that it is unjust and ineffective for society to express its condemnation of procreation outside the marital relationship by punishing the illegitimate child who is in no way responsible for his situation and is unable to change it, Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768, is inapplicable to the statute in question, which does not impose differing burdens or award differing benefits to legitimate and illegitimate children but simply denies a natural father the right to sue for his illegitimate child's wrongful death. Pp. 352-353.
4
(c) The statute does not invidiously discriminate against appellant simply because he is of the male sex. The conferral of the right of a natural father to sue for his child's wrongful death only if he has previously acted to identify himself, to undertake his paternal responsibilities, and to make his child legitimate, does not reflect any overbroad generalizations about men as a class, but rather the reality that in Georgia only a father can by unilateral action legitimate an illegitimate child. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688, distinguished. Pp. 353-357
5
(d) The statutory classification is a rational means for dealing with the problem of proving paternity. If paternity has not been established before the commencement of a wrongful-death action, a defendant may be faced with the possibility of multiple lawsuits by individuals all claiming to be the deceased child's father. Pp. 357-358.
6
2. Nor does the Georgia statute violate the Due Process Clause, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, distinguished. Pp. 358-359.
7
Mr. Justice POWELL concluded that the gender-based distinction in the Georgia statute does not violate equal protection inasmuch as it is substantially related to the State's objective of avoiding difficult problems in proving paternity after the death of an illegitimate child. Pp. 359-361.
8
Thomas E. Greer, Carrollton, Ga., for appellant.
9
A. Montague Miller, Augusta, Ga., for appellee.
10
Mr. Justice STEWART announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Mr. Justice REHNQUIST, and Mr. Justice STEVENS joined.
11
Under § 105-1307 of the Georgia Code (1978) (hereinafter Georgia statute),1 the mother of an illegitimate child can sue for the wrongful death of that child. A father who has legitimated a child can also sue for the wrongful death of the child if there is no mother. A father who has not legitimated a child, however, is precluded from maintaining a wrongful-death action. The question presented in this case is whether this statutory scheme violates the Equal Protection or Due Process Clause of the Fourteenth Amendment by denying the father of an illegitimate child who has not legitimated the child the right to sue for the child's wrongful death.
12
* The appellant was the biological father of Lemuel Parham, a minor child who was killed in an automobile collision. The child's mother, Cassandra Moreen, was killed in the same collision. The appellant and Moreen were never married to each other, and the appellant did not legitimate the child as he could have done under Georgia law.2 The appellant did, however, sign the child's birth certificate and contribute to his support.3 The child took the appellant's name and was visited by the appellant on a regular basis.
13
After the child was killed in the automobile collision, the appellant brought an action seeking to recover for the allegedly wrongful death. The complaint named the appellee (the driver of the other automobile involved in the collision) as the defendant, and charged that negligence on the part of the appellee had caused the death of the child. The child's maternal grandmother, acting as administratrix of his estate, also brought a lawsuit against the appellee to recover for the child's wrongful death.4
14
The appellee filed a motion for summary judgment in the present case, asserting that under the Georgia statute the appellant was precluded from recovering for his illegitimate child's wrongful death. The trial court held that the Georgia statute violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment and, accordingly, denied a summary judgment in favor of the appellee. On appeal, the Georgia Supreme Court reversed the ruling of the trial court. 241 Ga. 198, 243 S.E.2d 867. The appellate court found that the statutory classification was rationally related to three legitimate state interests: (1) the interest in avoiding difficult problems of proving paternity in wrongful-death actions; (2) the interest in promoting a legitimate family unit; and (3) the interest in setting a standard of morality by not according to the father of an illegitimate child the statutory right to sue for the child's death. Accordingly, the court held that the statute did not violate either the Equal Protection or Due Process Clause of the Fourteenth Amendment. We noted probable jurisdiction of this appeal from the judgment of the Georgia Supreme Court. 439 U.S. 815, 99 S.Ct. 75, 58 L.Ed.2d 106. II
15
State laws are generally entitled to a presumption of validity against attack under the Equal Protection Clause. Lockport v. Citizens for Community Action, 430 U.S. 259, 272, 97 S.Ct. 1047, 1055, 51 L.Ed.2d 313. Legislatures have wide discretion in passing laws that have the inevitable effect of treating some people differently from others, and legislative classifications are valid unless they bear no rational relationship to a permissible state objective. New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587; Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171; Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520; Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491.
16
Not all legislation, however, is entitled to the same presumption of validity. The presumption is not present when a State has enacted legislation whose purpose or effect is to create classes based upon racial criteria, since racial classifications, in a constitutional sense, are inherently "suspect." McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. And the presumption of statutory validity may also be undermined when a State has enacted legislation creating classes based upon certain other immutable human attributes. See, e. g., Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (national origin); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed. 534 (alienage); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (illegitimacy); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (gender).
17
In the absence of invidious discrimination, however, a court is not free under the aegis of the Equal Protection Clause to substitute its judgment for the will of the people of a State as expressed in the laws passed by their popularly elected legislatures. "The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." Vance v. Bradley, 440 U.S., at 97, 99 S.Ct., at 943 (footnote omitted). The threshold question, therefore, is whether the Georgia statute is invidiously discriminatory. If it is not, it is entitled to a presumption of validity and will be upheld "unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational." Ibid.
III
18
The appellant relies on decisions of the Court that have invalidated statutory classifications based upon illegitimacy and upon gender to support his claim that the Georgia statute is unconstitutional. Both of these lines of cases have involved laws reflecting invidious discrimination against a particular class. We conclude, however, that neither line of decisions is applicable in the present case.
A.
19
The Court has held on several occasions that state legislative classifications based upon illegitimacy—i. e., that differentiate between illegitimate children and legitimate children—violate the Equal Protection Clause. E. g., Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31; Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768.5 The basic rationale of these decisions is that it is unjust and ineffective for society to express its condemnation of procreation outside the marital relationship by punishing the illegitimate child who is in no way responsible for his situation and is unable to change it. As Mr. Justice POWELL stated for the Court in the Weber case:
20
"The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as an unjust—way of deterring the parent." Id., at 175, 92 S.Ct., at 1406-1407.
21
It is apparent that this rationale is in no way applicable to the Georgia statute now before us. The statute does not impose differing burdens or award differing benefits to legitimate and illegitimate children. It simply denies a natural father the right to sue for his illegitimate child's wrongful death. The appellant, as the natural father, was responsible for conceiving an illegitimate child and had the opportunity to legitimate the child but failed to do so. Legitimation would have removed the stigma of bastardy and allowed the child to inherit from the father in the same manner as if born in lawful wedlock. Ga.Code § 74-103 (1978). Unlike the illegitimate child for whom the status of illegitimacy is involuntary and immutable, the appellant here was responsible for fostering an illegitimate child and for failing to change its status. It is thus neither illogical nor unjust for society to express its "condemnation of irresponsible liaisons beyond the bonds of marriage" by not conferring upon a biological father the statutory right to sue for the wrongful death of his illegitimate child. The justifications for judicial sensitivity to the constitutionality of differing legislative treatment of legitimate and illegitimate children are simply absent when a classification affects only the fathers of deceased illegitimate children.
B
22
The Court has also held that certain classifications based upon sex are invalid under the Equal Protection Clause, e. g., Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688; Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397. Underlying these decisions is the principle that a State is not free to make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class. Thus, in Reed v. Reed, supra, the Court was faced with the question of the constitutionality of an Idaho probate code provision that gave men a mandatory preference over women, in the same degree of relationship to the decedent, in the administration of the decedent's estate. The Court held that "[b]y providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause." 404 U.S., at 77, 92 S.Ct., at 254. Similarly, in Frontiero v. Richardson, supra, the Court invalidated the federal Armed Services benefit statutes that were based on the assumption that female spouses of servicemen were financially dependent while similarly situated male spouses of servicewomen were not. 411 U.S., at 690-691, 93 S.Ct., at 1772. And in the Stanton case, the Court held constitutionally invalid a Utah statute which provided that males had to reach a greater age than females to attain majority status. In reaching this result, the Court rejected the "old notion" that the female is "destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas." 421 U.S., at 14-15, 95 S.Ct., at 1378. See also Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306.
23
In cases where men and women are not similarly situated, however, and a statutory classification is realistically based upon the differences in their situations, this Court has upheld its validity. In Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610, for example, the Court upheld the constitutionality of a federal statute which provided that male naval officers who were not promoted within a certain length of time were subject to mandatory discharge while female naval officers who were not promoted within the same length of time could continue as officers. Because of restrictions on women officers' seagoing service, their opportunities to compile records entitling them to promotion were more restricted than were those of their male counterparts. Thus, unlike the Reed and Frontiero cases where the gender-based classifications were based solely on administrative convenience and outworn cliches, the different treatment in the Schlesinger case reflected "not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service." 419 U.S., at 508, 95 S.Ct., at 577 (emphasis in original).
24
With these principles in mind, it is clear that the Georgia statute does not invidiously discriminate against the appellant simply because he is of the male sex. The fact is that mothers and fathers of illegitimate children are not similarly situated. Under Georgia law, only a father can by voluntary unilateral action make an illegitimate child legitimate.6 Unlike the mother of an illegitimate child whose identity will rarely be in doubt, the identity of the father will frequently be unknown. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503.7 By coming forward with a motion under § 74-103 of the Georgia Code, however, a father can both establish his identity and make his illegitimate child legitimate.8
25
Thus, the conferral of the right of a natural father to sue for the wrongful death of his child only if he has previously acted to identify himself, undertake his paternal responsibilities, and make his child legitimate, does not reflect any overbroad generalizations about men as a class, but rather the reality that in Georgia only a father can by unilateral action legitimate an illegitimate child. Since fathers who do legitimate their children can sue for wrongful death in precisely the same circumstances as married fathers whose children were legitimate ab initio, the statutory classification does not discriminate against fathers as a class but instead distinguishes between fathers who have legitimated their children and those who have not.9 Such a classification is quite unlike those condemned in the Reed, Frontiero, and Stanton cases which were premised upon overbroad generalizations and excluded all members of one sex even though they were similarly situated with members of the other sex.
IV
26
Having concluded that the Georgia statute does not invidiously discriminate against any class, we still must determine whether the statutory classification is rationally related to a permissible state objective.
27
This Court has frequently recognized that a State has a legitimate interest in the maintenance of an accurate and efficient system for the disposition of property at death. E. g., Lalli v. Lalli, supra; Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31; Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288. Of particular concern to the State is the existence of some mechanism for dealing with "the often difficult problem of proving the paternity of illegitimate children and the related danger of spurious claims against intestate estates." Lalli v. Lalli, supra, 439 U.S., at 265, 99 S.Ct., at 523. See also Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 874, 35 L.Ed.2d 56.
28
This same state interest in avoiding fraudulent claims of paternity in order to maintain a fair and orderly system of decedent's property disposition is also present in the context of actions for wrongful death. If paternity has not been established before the commencement of a wrongful-death action, a defendant may be faced with the possibility of multiple lawsuits by individuals all claiming to be the father of the deceased child. Such uncertainty would make it difficult if not impossible for a defendant to settle a wrongful-death action in many cases, since there would always exist the risk of a subsequent suit by another person claiming to be the father.10 The State of Georgia has chosen to deal with this problem by allowing only fathers who have established their paternity by legitimating their children to sue for wrongful death, and we cannot say that this solution is an irrational one. Cf. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503.11
29
The appellant argues, however, that whatever may be the problem with establishing paternity generally, there is no question in this case that he is the father. This argument misconceives the basic principle of the Equal Protection Clause. The function of that provision of the Constitution is to measure the validity of classifications created by state laws.12 Since we have concluded that the classification created by the Georgia statute is a rational means for dealing with the problem of proving paternity, it is constitutionally irrelevant that the appellant may be able to prove paternity in another manner.
V
30
The appellant also alleges that the Georgia statute violates the Due Process Clause of the Fourteenth Amendment. Nowhere in the appellant's brief or oral argument, however, is there any explanation of how the Due Process Clause is implicated in this case. The only decision of this Court cited by the appellant that is even remotely related to his due process claim is Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. In the Stanley case, the Court held that a father of illegitimate children who had raised these children was entitled to a hearing on his fitness as a parent before they could be taken from him by the State of Illinois. The interests which the Court found controlling in Stanley were the integrity of the family against state interference and the freedom of a father to raise his own children. The present case is quite a different one, involving as it does only an asserted right to sue for money damages.
31
For these reasons, the judgment of the Supreme Court of Georgia is affirmed.
32
It is so ordered.
33
Mr. Justice POWELL, concurring in the judgment.
34
I agree that the gender-based distinction of Ga.Code § 105-1307 (1978) does not violate equal protection.* I write separately, however, because I arrive at this conclusion by a route somewhat different from that taken by Mr. Justice STEWART.
35
To withstand judicial scrutiny under the Equal Protection Clause, gender-based distinctions must "serve important governmental objectives and must be substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976). See Orr v. Orr, 440 U.S. 268, 279, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979); Stanton v. Stanton, 421 U.S. 7, 14, 95 S.Ct. 1373, 1377, 43 L.Ed.2d 688 (1975); Reed v. Reed, 404 U.S. 71 (1971). We have recognized in various contexts the importance of a State's interest in minimizing potential problems in identifying the natural father of an illegitimate child. See, e. g., Caban v. Mohammed, 441 U.S., at 393 n. 15, 99 S.Ct., at 1769, n. 15 (adoptions); Lalli v. Lalli, 439 U.S. 259, 268-269, 99 S.Ct. 518, 524-525, 58 L.Ed.2d 503 (1978) (inheritance); Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 874, 35 L.Ed.2d 56 (1973) (child support). Indeed, we have sought to avoid "impos[ing] on state court systems a greater burden" in determining paternity for purposes of wrongful-death actions. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 174, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972).
36
The question, therefore, is whether the gender-based distinction at issue in the present case is substantially related to achievement of the important state objective of avoiding difficult problems in proving paternity after the death of an illegitimate child. In Ga.Code § 74-103 (1978), the State has provided a simple, convenient mechanism by which the father of an illegitimate child can eliminate all questions concerning the child's parentage. Under that statute, a father can legitimate his child simply by filing a petition in state court identifying the child and its mother and requesting an order of legitimation. After notice has been served on the mother, the state court can enter an order declaring the child legitimate for all purposes of Georgia law.
37
It is clear that the Georgia statute is substantially related to the State's objective. It lies entirely within a father's power to remove himself from the disability that only he will suffer. The father is required to declare his intentions at a time when both the child and its mother are likely to be available to provide evidence. The mother, on the other hand, is given the opportunity to appear and either support or rebut the father's claim of paternity. The marginally greater burden placed upon fathers is no more severe than is required by the marked difference between proving paternity and proving maternity—a difference we have recognized repeatedly. See, e. g., Lalli v. Lalli, supra, 439 U.S., at 268-269, 99 S.Ct., at 525.
38
I find the present case to be quite different from others in which the Court has found unjustified a State's reliance upon a gender-based classification. In several cases, the Court has confronted a state law under which the burdened individual (whether a child born out of wedlock or the father of such a child) has been powerless to remove himself from the statutory burden—regardless of the proof of paternity. See, e. g., Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297; Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). To require marriage between the father and mother often is tantamount to a total exclusion of fathers, as marriage is possible only with the consent of the mother. In the present case, however, no such requirement is imposed upon the father under Georgia law. In sum, therefore, I conclude that the Georgia statute challenged in this case, unlike the statutes reviewed in our prior decisions, is substantially related to the State's objective of avoiding difficult problems of proof of paternity.
39
Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN join, dissenting.
40
Appellant is the father, rather than the mother, of a deceased illegitimate child. It is conceded that for this reason alone he may not bring an action for the wrongful death of his child. Yet four Members of the Court conclude that appellant is not discriminated against "simply" because of his sex, ante, at 355, because Georgia provides a means by which fathers can legitimate their children. The dispositive point is that only a father may avail himself of this process. Therefore, we are told, "[t]he fact is that mothers and fathers of illegitimate children are not similarly situated," ibid.
41
There is a startling circularity in this argument. The issue before the Court is whether Georgia may require unmarried fathers, but not unmarried mothers, to have pursued the statutory legitimization procedure in order to bring suit for the wrongful death of their children. Seemingly, it is irrelevant that as a matter of state law mothers may not legitimate their children,1 for they are not required to do so in order to maintain a wrongful-death action. That only fathers may resort to the legitimization process cannot dissolve the sex discrimination in requiring them to.2 Under the plurality's bootstrap rationale, a State could require that women, but not men, pass a course in order to receive a taxi license, simply by limiting admission to the course to women.3
42
The plain facts of the matter are that the statute conferring the right to recovery for the wrongful death of a child discriminates between unmarried mothers and unmarried fathers, and that this discrimination is but one degree greater than the statutory discrimination between married mothers and married fathers.4 In order to withstand scrutiny under the Equal Protection Clause, gender-based discrimination " 'must serve important governmental objectives and must be substantially related to achievement of those objectives.' " Caban v. Mohammed, 441 U.S., at 388, 99 S.Ct., at 1766, quoting Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976). Because none of the interests urged by the State warrant the sex discrimination in this case, I would reverse the judgment below.
43
* The Georgia Supreme Court suggested that the state legislature may have denied a right of action to fathers of illegitimate children because of its interest in "promoting a legitimate family unit" and "setting a standard of morality." 241 Ga. 198, 200, 243 S.E.2d 867, 869-870 (1978). But the actual relationship between these interests and the particular classification chosen is far too tenuous to justify the sex discrimination involved. Cf. Trimble v. Gordon, 430 U.S. 762, 768, 97 S.Ct. 1459, 1464, 52 L.Ed.2d 31 (1977).
44
Unmarried mothers and those fathers who legitimate their children but remain unmarried presumably also defy the state interest in "the integrity of the family unit."5 In any event, it is untenable to conclude that denying parents a right to recover when their illegitimate children die will further the asserted state interests. In Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), we were faced with the same argument in the context of an unmarried mother's attempt to recover for her child's death in a State allowing wrongful-death suits by parents of legitimate children. Even though that mother—like appellant in this case—had not pursued a statutory procedure whereby she could have unilaterally legitimated her child and thereby become eligible to sue for the child's death,6 we held that it was impermissible to prevent her from seeking to recover. What we said in Glona about unmarried mothers applies equally to unmarried fathers:
45
"[W]e see no possible rational basis . . . for assuming that if the natural mother is allowed recovery for the wrongful death of her illegitimate child, the cause of illegitimacy will be served. It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death." Id., at 75, 88 S.Ct., at 1516.
46
See also Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972).
II
47
Another interest suggested by the Georgia Supreme Court, which a majority of the Court today finds pervasive, is that of "forestalling potential problems of proof of paternity," 241 Ga., at 200, 243 S.E.2d, at 869. Whatever may be the evidentiary problems associated with proof of parenthood where a father, but presumably not a mother,7 is involved, I am sure that any interest the State conceivably has in simplifying the determination of liability in wrongful-death actions does not justify the outright gender discrimination in this case.
48
The Court has shown due respect for a State's undoubted interest in effecting a sound system of inheritance that will not unduly tie up the assets of the deceased, including his real estate, and prevent its transmission to and utilization by his heirs and the upcoming generation.8 Formal documentation of entitlement to inherit may be significant in avoiding unending litigation inimical to this interest. But the State has no comparable interest in protecting a tortfeasor from having his liability litigated and determined in the usual way. There is always the possibility of spurious claims in tort litigation, and the plaintiff will have the burden of proof if his parenthood is challenged.9 The legitimization requirement is not merely a rule concerning the competency of evidence10 but an absolute prerequisite to recovery for the wrongful death of a child, barring many who are capable of proving their parenthood, solely because they are fathers. It denigrates the judicial process, as well as the interest in foreclosing gender-based discriminations, to hold that the possibility of erroneous determinations of paternity in an unknown number of cases, likely to be few, is sufficient reason to forbid all natural, unmarried fathers who have not legitimated their children from seeking to prove their parenthood and recovering in damages for the tort that has been committed.11
49
Much the same is true of the rather lame suggestion that keeping fathers such as this appellant out of court will protect wrongdoers and their insurance companies from multiple recoveries. This claimed danger is but one of many potential hazards in personal injury litigation, and it is very doubtful that it would be exacerbated if the Georgia statute in this case were stricken down. Assuming that there might be a few occasions where multiple recoveries are threatened, steps could be taken to settle liability in one proceeding, just as actions to quiet title to real estate need not be reopened at every turn. Whatever risks there may be, however, are not sufficient to justify foreclosing suit by the many, many fathers like Parham, about whose parenthood there is very little doubt indeed.12
III
50
The fourth and final interest suggested by the Supreme Court of Georgia as a reason that the state legislature may have denied the wrongful-death action to fathers such as appellant is that "more often than not the father of an illegitimate child who has elected neither to marry the mother nor to legitimate the child pursuant to proper legal proceedings suffers no real loss from the child's wrongful death." 241 Ga., at 200, 243 S.E.2d, at 870. Unlike the previous hypothesized state interests, this last does at least provide a plausible explanation for the classification at issue. Yet such a legislative conception about fathers of illegitimate children is an unacceptable basis for a blanket discrimination against all such fathers. Whatever may be true with respect to certain of these parents,13 we have recognized that at least some of them maintain as close a relationship to their children as do unmarried mothers. Thus, in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297, we struck down a statutory discrimination in adoption proceedings against all unmarried fathers, rejecting the assertion that "broad, gender-based distinction . . . is required by any universal difference between maternal and paternal relations at every phase of a child's development." 441 U.S., at 389, 99 S.Ct., at 1767.14
51
Nor does the discrimination against fathers of illegitimate children on the basis of their presumed lack of affection for their children become any more permissible simply because a father who is aware of the State's legitimization procedure may resort to it and thereby become eligible to recover for the wrongful death of his children.15 Particularly given the facts of this case where it is conceded that appellant signed his child's birth certificate, continuously contributed to the child's financial support, and maintained daily contact with him16—it is unrealistic to presume that unmarried fathers (or mothers17) having real interest in their children and suffering palpable loss if their children die will, as a general rule, have pursued a statutory legitimization procedure. Only last Term, we indicated that resort to this very process in the State of Georgia is not constitutionally acceptable as a surrogate measure of an unmarried father's interest in his child.18
52
Moreover, it is clear that the discrimination at issue in this case does not proceed from merely a considered legislative determination, however unjustified, that parents such as appellant do not suffer loss when their children die. Rather, the particular discrimination in this case is but part of the pervasive sex discrimination in the statute conferring the right to sue for the wrongful death of a child. Even where the deceased is legitimate, the father is absolutely prohibited from bringing a wrongful-death action if the mother is still alive, even if the mother does not desire to bring suit and even if the parents are separated or divorced. The incredible presumption that fathers, but not mothers, of illegitimate children suffer no injury when they lose their children is thus only a more extreme version of the underlying and equally untenable presumption that fathers are less deserving of recovery than are mothers.
53
If Georgia would prefer that the amount of wrongful-death recovery be based upon the mental anguish and loss of future income suffered when a child dies—rather than on the "full value of the life of such child," as the statute now provides19—it may amend the statute. But it may not categorically eliminate on the basis of sex any recovery by those parents it deems uninjured or undeserving.
1
Section 105-1307 provides:
"A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, unless said child shall leave a wife, husband or child. The mother or father shall be entitled to recover the full value of the life of such child. In suits by the mother the illegitimacy of the child shall be no bar to a recovery." (Emphasis added.)
2
Under Ga.Code § 74-103 (1978), a natural father can have his child legitimated by court order. Section 74-103 provides:
"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 inheriting from the father in the same manner as if born in lawful wedlock, and the name by which he or she shall be known."
3
Under Ga.Code § 74-202 (1978), a father is required to support an illegitimate child until the child reaches 18, marries, or becomes self-supporting, whichever occurs first.
4
Georgia Code § 105-1309 (1978) provides:
"In cases where there is no person entitled to sue under the foregoing provisions of this Chapter [the wrongful-death Chapter], the administrator or executor of the decedent may sue for and recover and hold the amount recovered for the benefit of the next of kin. In any such case the amount of the recovery shall be the full value of the life of the decedent."
5
In cases where statutory classifications affecting illegitimates are so precisely structured as to further a sufficiently adequate state interest, however, the Court has upheld the validity of the statutes. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503; Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651; Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288.
6
The constitutionality of the legitimation provision of the Georgia statute has not been challenged and is not at issue in this case.
7
As Mr. Justice POWELL stated for the plurality in the Lalli case:
"That the child is the child of a particular woman is rarely difficult to prove. Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy." 439 U.S., at 268-269, 99 S.Ct., at 525. (Citations omitted.)
In Glona v. American Guarantee Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441, the Court held that a Louisiana statute that did not allow a natural mother of an illegitimate child to sue for its wrongful death violated the Equal Protection Clause. That cause was quite different from this one. The invidious discrimination perceived in that case was between married and unmarried mothers. There thus existed no real problem of identity or of fraudulent claims. See Part IV, infra. Moreover, the statute in Glona excluded every mother of an illegitimate child from bringing a wrongful-death action while the Georgia statute at issue here excludes only those fathers who have not legitimated their children. Thus, the Georgia statute has in effect adopted "a middle ground between the extremes of complete exclusion and case-by-case determination of paternity." Trimble v. Gordon, 430 U.S. 762, 771, 97 S.Ct. 1459, 1465, 52 L.Ed.2d 31. Cf. Lalli v. Lalli, supra. We need not decide whether a statute which completely precluded fathers, as opposed to mothers, of illegitimate children from maintaining a wrongful-death action would violate the Equal Protection Clause.
8
See n. 2, supra.
9
The ability of a father to make his child legitimate under Georgia law distinguishes this case from Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297, decided today. The Georgia legitimation provision enables the father to change the child's status, and thereby his own for purposes of the wrongful-death statute, and at the same time is a rational method for the State to deal with the problem of proving paternity. Lalli v. Lalli, supra ; see Part IV, infra. In the Caban case, by contrast, the father could change neither his children's status nor his own for purposes of the New York adoption statute.
10
Indeed, a similar uncertainty is evident in the present case. The appellee has been sued by both the administratrix of the estate and the appellant for the wrongful death of the child.
11
We thus need not decide whether the classification created by the Georgia statute is rationally related to the State's interests in promoting the traditional family unit or in setting a standard of morality.
12
It cannot seriously be argued that a statutory entitlement to sue for the wrongful death of another is itself a "fundamental" or constitutional right.
*
I also agree with Mr. Justice STEWART that the classification of § 105-1307 affects only fathers of illegitimates not the illegitimates themselves—and therefore that this case differs substantially from those in which we have found classifications based upon illegitimacy to be unconstitutional. See, e. g., Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).
1
Although Ga.Code § 74-103 (1978) provides that a father may petition, with notice to the mother, to legitimate his child, mothers are not given a similar right. At least one State provides that either parent, or both, may legitimate a child. La.Civ.Code Ann., Art. 203 (West 1952).
2
The plurality not only fails to examine whether required resort by fathers to the legitimization procedure bears more than a rational relationship to any state interest, but also fails even to address the constitutionality of the sex discrimination in allowing fathers but not mothers to legitimate their children. It is anomalous, at least, to assert that sex discrimination in one statute is constitutionally invisible because it is tied to sex discrimination in another statute, without subjecting either of these classifications on the basis of sex to an appropriate level of scrutiny.
3
Men and women would therefore not be "similarly situated." Yet requiring a course for women but not for men is quite obviously a classification on the basis of sex.
4
The opinion of Mr. Justice Stewart shunts aside the readily apparent classification on the basis of sex in Georgia's wrongful-death scheme by stressing that appellant's child was never made legitimate, but it is only the fortuitous event of the mother's death in this case that makes legitimacy even relevant. In the case of parents of legitimate children, only the mother may sue if she is alive; the father is allowed to sue only "if [there is] no mother." Ga.Code § 105-1307 (1978). See also infra, at 368.
5
Lalli v. Lalli, 439 U.S. 259, 265, 99 S.Ct. 518, 523, 58 L.Ed.2d 503 (1978). See also Trimble v. Gordon, 430 U.S. 762, 769, 97 S.Ct. 1459, 1464, 52 L.Ed.2d 31 (1977).
6
See n. 1, supra; Glona v. American Guarantee & Liability Ins. Co., 391 U.S., at 79 n. 7, 88 S.Ct., at 1516 n. 7, (Harlan, J., dissenting).
7
But cf. Glona v. American Guarantee & Liability Ins. Co., supra, 391 U.S. at 76, 88 S.Ct., at 1517 ("Opening the courts to suits [by the mother of an illegitimate child] may conceivably be a temptation to some to assert motherhood fraudulently").
8
See Lalli v. Lalli, supra; Trimble v. Gordon, supra, 430 U.S. at 771, 97 S.Ct., at 1465, and cases cited therein. Where discrimination on a basis triggering heightened judicial scrutiny is alleged, judicial deference has given way in the context of other statutorily created entitlements, see, e. g., Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Griffin v. Richardson, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 summarily aff'g 346 F.Supp. 1226 (D.C.Md.1972); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), including wrongful-death recovery; Glona, supra; Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). In Weber, the Court, per Mr. Justice POWELL, expressly analogized the state interest in deciding who may sue for wrongful death to the interest in deciding who may receive workmen's compensation, and rejected the assertion that the interest in the latter is as substantial as that in intestacy succession, 406 U.S., at 170-172, 92 S.Ct., at 1404-1405.
9
See also Glona v. American Guarantee & Liability Ins. Co., supra, 391 U.S., at 76, 88 S.Ct., at 1517 ("That problem [of fraudulent assertion of motherhood] . . . concerns burden of proof "). Although appellant in this case has substantial evidence of his paternity and it is clear that but for the legitimization requirement there would be no challenge to his capacity to sue, other unmarried fathers whose paternity is challenged may be unable—particularly when, as here, the mother is dead—to offer sufficient evidence to convince the factfinder of paternity.
10
Cf. Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976) (upholding the denial of survivors' benefits under the Social Security Act to illegitimate children unless they are entitled to inherit under state intestacy law or are able to show paternity in one of several other ways, including written acknowledgment by the father, 42 U.S.C. § 402(d)(3)).
11
Certainly, the Court has not shown such solicitude for the problem of an erroneous determination of paternity when the claimed father is the defendant rather than the plaintiff. See Gomez v. Perez, 409 U.S., at 538, 93 S.Ct., at 875 (holding that a State must entitle illegitimate, as well as legitimate, children to paternal support: "We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination").
12
See also Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) ("Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. . . . [W]hatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex").
13
See Lalli v. Lalli, 439 U.S., at 268-269, 99 S.Ct., at 525.
14
In 1977, 15.5% of all children and 51.7% of the black children born in the United States had unmarried parents. U.S. Dept. of HEW, National Center for Health Statistics, 27 Vital Statistics Report, No. 11, p. 19 (1979). The suggestion that anything approaching a majority of the fathers of these children would "suffe[r] no real loss from the child's wrongful death" is incredible.
15
In Caban v. Mohammed, 441 U.S., at 393 n. 15, 99 S.Ct., at 1769 n. 15, we noted that even a father who establishes his paternity in Family Court pursuant to N.Y. Family Court Act §§ 511 to 571 (McKinney 1975 and Supp. 1978-1979) may not object to his child's adoption, and thus refusal to allow such objection was not related to the State's interest that the father "sho[w] that it is in fact his child." As explained, supra, at 364-366, I have no doubt that this state interest is insufficient in this case also, since even those many fathers presently able to prove their paternity are precluded from bringing suit. Caban certainly did not intimate that the failure of that father to have previously established his paternity might suffice to justify discrimination against him on the basis of presumed differences in maternal and paternal relations.
16
241 Ga. 198, 199, 243 S.E.2d 867, 869 (1978).
17
See text at n. 6, supra.
18
See Quilloin v. Walcott, 434 U.S. 246, 254, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978).
19
See Ga.Code §§ 105-1307, 105-1308 (1978) ("The full value of the life of the decedent, as shown by the evidence, is the full value of the life of the decedent without deduction for necessary or other personal expenses of the decedent had he lived").
| 12
|
441 U.S. 463
99 S.Ct. 1826
60 L.Ed.2d 360
Maurice SMITH et al.v.
ARKANSAS STATE HIGHWAY EMPLOYEES, LOCAL 1315, et al.
No. 78-1223.
April 30, 1979.
PER CURIAM.
1
In grievance proceedings initiated by employees of the Arkansas State Highway Department, the State Highway Commission will not consider a grievance unless the employee submits his written complaint directly to the designated employer representative. The District Court for the Eastern District of Arkansas found that this procedure denied the union representing the employees the ability to submit effective grievances on their behalf and therefore violated the First Amendment. 459 F.Supp. 452 (1978). The United States Court of Appeals for the Eighth Circuit affirmed.1 585 F.2d 876 (1978). We disagree with these holdings; finding no constitutional violation in the actions of the Commission or its individual members, we grant certiorari and reverse the judgment of the Court of Appeals.
2
The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. And it protects the right of associations to engage in advocacy on behalf of their members. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The government is prohibited from infringing upon these guarantees either by a general prohibition against certain forms of advocacy, NAACP v. Button, supra, or by imposing sanctions for the expression of particular views it opposes, e. g., Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).
3
But the First Amendment is not a substitute for the national labor relations laws. As the Court of Appeals for the Seventh Circuit recognized in Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456 (1972), the fact that procedures followed by a public employer in bypassing the union and dealing directly with its members might well be unfair labor practices were federal statutory law applicable hardly establishes that such procedures violate the Constitution. The First Amendment right to associate and to advocate "provides no guarantee that a speech will persuade or that advocacy will be effective." Id., at 461. The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. See Pickering v. Board of Education, 391 U.S. 563, 574-575, 88 S.Ct. 1731, 1737-1738, 20 L.Ed.2d 811 (1968); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.2
4
In the case before us, there is no claim that the Highway Commission has prohibited its employees from joining together in a union, or from persuading others to do so, or from advocating any particular ideas. There is, in short, no claim of retaliation or discrimination proscribed by the First Amendment. Rather, the complaint of the union and its members is simply that the Commission refuses to consider or act upon grievances when filed by the union rather than by the employee directly.
5
Were public employers such as the Commission subject to the same labor laws applicable to private employers, this refusal might well constitute an unfair labor practice. We may assume that it would and, further, that it tends to impair or undermine if only slightly3—the effectiveness of the union in representing the economic interests of its members. Cf. Hanover Township, supra.
6
But this type of "impairment" is not one that the Constitution prohibits. Far from taking steps to prohibit or discourage union membership or association, all that the Commission has done in its challenged conduct is simply to ignore the union. That it is free to do.
7
The judgment of the Court of Appeals is therefore reversed.
8
It is so ordered.
9
Mr. Justice POWELL took no part in the consideration or decision of this case.
10
Mr. Justice MARSHALL, dissenting.
11
Now this Court is deciding vital constitutional questions without even a plenary hearing. I dissent.
12
This Court has long held that the First Amendment protects the right of unions to secure legal representation for their members. Mine Workers v. Illinois State Bar Assn., 389 U.S. 217, 221-222, 88 S.Ct. 353, 355-356, 19 L.Ed.2d 426 (1967); Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 8, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89 (1964); see Transportation Union v. State Bar of Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). Based on this precedent and on Arkansas' recognition of public employees' right to organize and join a union, Potts v. Hay, 229 Ark. 830, 315 S.W.2d 826 (1958), the Court of Appeals concluded that the First Amendment also encompasses respondent union's right to file grievances on behalf of its members. If under Mine Workers and Railroad Trainmen a public employer may not refuse to entertain a grievance submitted by a union-salaried attorney, it is not immediately apparent why the employer in this case should be entitled to reject a grievance asserted by the union itself.
13
I decline to join a summary reversal that so cavalierly disposes of substantial First Amendment issues.*
1
This suit was brought by the Arkansas State Highway Employees, Local 1315, and eight of its individual members, after the Commission refused to consider grievances submitted by the union on behalf of two of its members. The facts in these two cases are not in dispute:
"[E]ach employee sent a letter to Local 1315, explaining the nature of their grievance and requesting the union to process the grievances on their behalf. In each case the union forwarded the employee's letter to the designated employer's representative and included its own letter stating that it represented the employees and decided to set up a meeting. The employer's representative did not respond to the union's letter. Thereafter each employee filed a written complaint directly with the employer representative. Local 1315 represented each employee at subsequent meetings with the employer representative." 585 F.2d, at 877.
The individual Commissioners of the Arkansas State Highway Commission and the Director of the State Highway Department were named as defendants, and are the petitioners in this Court.
2
See Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456, 461 (CA7 1972), quoting Indianapolis Education Assn. v. Lewallen, 72 LRRM 2071, 2072 (CA7 1969) (" 'there is no constitutional duty to bargain collectively with an exclusive bargaining agent' ").
3
The union does represent its members at all meetings with employer representatives subsequent to the filing of a written grievance. See n. 1, supra. The "impairment" is thus limited to the requirement that written complaints, to be considered, must initially be submitted directly to the employer representative by the employee. There appears to be no bar, however, on the employee's securing any form of advice from his union, or from anyone else. Cf. Mine Workers v. Illinois State Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); Railroad Trainmen v. Virginia, ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964).
*
Moreover, summary reversal seems to me an especially inappropriate means of resolving conflicts between the United States Courts of Appeals. Compare Arkansas State Highway Employees Local 1315 v. Smith, 585 F.2d 876 (CA8 1978), with Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456 (CA7 1972).
| 23
|
441 U.S. 434
99 S.Ct. 1813
60 L.Ed.2d 336
JAPAN LINE, LTD., et al., Appellants,v.COUNTY OF LOS ANGELES et al.
No. 77-1378.
Argued Jan. 8, 1979.
Decided April 30, 1979.
Syllabus
Appellant Japanese shipping companies' vessels carry cargo containers which, like the ships, are owned by appellants, are based, registered, and subjected to property tax in Japan, and are used exclusively in foreign commerce. A number of appellants' containers were temporarily present in appellee county and cities in California, and appellees levied property taxes on the containers. The California Supreme Court upheld the tax as applied.
Held :
1. This Court has appellate jurisdiction under 28 U.S.C. § 1257(2), since the California Supreme Court sustained the tax, as applied, as against the contention that such application would violate the Commerce Clause and various treaties. Pp. 440-441.
2. It is unnecessary to decide the broad proposition whether mere use of international routes is enough, under the "home port doctrine," to render an instrumentality immune from tax in a nondomiciliary State. The question here is a more narrow one, namely, whether instrumentalities of commerce that are owned, based, and registered abroad, and that are used exclusively in international commerce, may be subjected to apportioned ad valorem property taxation by a State. Pp. 441-444.
3. While under Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326, no impermissible burden on interstate commerce will be found if a state tax "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State," id., at 279, 97 S.Ct. at 1079, a more elaborate inquiry is necessary when a State seeks to tax the instrumentalities of foreign, rather than of interstate, commerce. In addition to answering the nexus, apportionment, and nondiscrimination questions posed in Complete Auto, a court must also inquire, first, whether the tax, notwithstanding apportionment, creates a substantial risk of international multiple taxation, and, second, whether the tax prevents the Federal Government from "speak[ing] with one voice when regulating commercial relations with foreign governments." Michelin Tire Corp. v. Wages, 423 U.S. 276, 285, 96 S.Ct. 535, 540, 46 L.Ed.2d 495. If a state tax contravenes either of these precepts, it is unconstitutional under the Commerce Clause. Pp. 444-451. 4. The California ad valorem property tax, as applied to appellants' shipping containers, is unconstitutional under the Commerce Clause, since it results in multiple taxation of the instrumentalities of foreign commerce, Moorman Mfg. Co. v. Bair, 437 U.S. 267, 98 S.Ct. 2340, 57 L.Ed.2d 197, distinguished, and prevents this Nation from "speaking with one voice" in regulating foreign trade and thus is inconsistent with Congress' power to "regulate Commerce with foreign Nations." Pp. 451-457.
20 Cal.3d 180, 141 Cal.Rptr. 905, 571 P.2d 254, reversed.
Peter L. Briger, New York City, for appellants.
Kent L. Jones, Dept. of Justice, Washington, D. C., pro hac vice for the United States, as amicus curiae.
James Dexter Clark, Deputy County Counsel, Los Angeles, Cal., for appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the question whether a State, consistently with the Commerce Clause of the Constitution, may impose a nondiscriminatory ad valorem property tax on foreign-owned instrumentalities (cargo containers) of international commerce.
2
* The facts were "stipulated on appeal," App. 29, and were found by the trial court, id., at 33-36, as follows:
3
Appellants are six Japanese shipping companies; they are incorporated under the laws of Japan, and they have their principal places of business and commercial domiciles in that country. Id., at 34. Appellants operate vessels used exclusively in foreign commerce; these vessels are registered in Japan and have their home ports there. Ibid. The vessels are specifically designed and constructed to accommodate large cargo shipping containers.1 The containers, like the ships, are owned by appellants, have their home ports in Japan, and are used exclusively for hire in the transportation of cargo in foreign commerce. Id., at 35. Each container is in constant transit save for time spent undergoing repair or awaiting loading and unloading of cargo. All appellants' containers are subject to property tax in Japan and, in fact, are taxed there.
4
Appellees are political subdivisions of the State of California. Appellants' containers, in the course of their international journeys, pass through appellees' jurisdictions intermittently. Although none of appellants' containers stays permanently in California, some are there at any given time; a container's average stay in the State is less than three weeks. Ibid. The containers engage in no intrastate or interstate transportation of cargo except as continuations of international voyages. Id., at 30. Any movements or periods of nonmovement of containers in appellees' jurisdictions are essential to, and inseparable from, the containers' efficient use as instrumentalities of foreign commerce. Id., at 35-36.
5
Property present in California on March 1 (the "lien date" under California law) of any year is subject to ad valorem property tax. Cal.Rev. & Tax.Code Ann. §§ 117, 405, 2192 (West 1970 and Supp.1979). A number of appellants' containers were physically present in appellees' jurisdictions on the lien dates in 1970, 1971, and 1972; this number was fairly representative of the containers' "average presence" during each year. App. 35. Appellees levied property taxes in excess of $550,000 on the assessed value of the containers present on March 1 of the three years in question. Id., at 36. During the same period, similar containers owned or controlled by steamship companies domiciled in the United States, that appeared from time to time in Japan during the course of international commerce, were not subject to property taxation in Japan, and therefore were not, in fact, taxed in that country. Id., at 35.
6
Appellants paid the taxes, so levied, under protest and sued for their refund in the Superior Court for the County of Los Angeles. That court awarded judgment in appellants' favor.2 Id., at 39-40. The court found that appellants' containers were instrumentalities of foreign commerce that had their home ports in Japan where they were taxed. The federal courts, however, in the trial court's view, had "consistently held that vessels which are instrumentalities of foreign commerce and engaged in foreign commerce can be taxed in their home port only." Id., at 24. This rule, said the court, was necessary to avoid multiple taxation, id., at 23; whereas apportionment of taxes can be used to prevent duplicative taxation in interstate commerce, apportionment is "not practical" when one of the taxing entities is a foreign sovereign. In such cases, "[t]here is no tribunal that can adjudicate [competing] rights unless it be the International Court and to invoke its services jurisdiction must be consented to by all parties." Id., at 24. The application of appellees' taxes in derogation of the "home port doctrine," the court concluded, subjected international commerce to multiple taxation and thus was unconstitutional under the Commerce Clause. In so holding, the court followed Scandinavian Airlines System, Inc. v. County of Los Angeles, 56 Cal.2d 11, 14 Cal.Rptr. 25, 363 P.2d 25, cert. denied, 368 U.S. 899, 82 S.Ct. 175, 7 L.Ed.2d 94 (1961) (hereinafter SAS) (ruling that ad valorem property tax levied by California upon aircraft owned, based, and registered abroad and used exclusively in international commerce, was unconstitutional under the Commerce Clause).
7
The Court of Appeal reversed. 132 Cal.Rptr. 531 (1976). The court appeared to conclude that SAS had been effectively overruled by Sea-Land Service, Inc. v. County of Alameda, 12 Cal.3d 772, 117 Cal.Rptr. 448, 528 P.2d 56 (1974). In Sea-Land, the Supreme Court of California had criticized the home port doctrine and labeled it "anachronistic," and had upheld apportioned property taxation of containers owned by a domestic corporation and used in both intercoastal and foreign commerce. Id., at 787, 117 Cal.Rptr., at 458, 528 P.2d, at 66. The Court of Appeal rejected appellants' arguments that a different result was required here in view of their containers' foreign ownership and exclusively international use. The court likewise dismissed any argument as to multiple taxation. "[T]he possibility of international double taxation of instrumentalities of foreign commerce," it concluded, is "no reason to limit the local power to tax them upon a nondiscriminatory apportioned basis." 132 Cal.Rptr., at 533.3
8
The California Supreme Court granted a hearing of the case and it, too, reversed the judgment of the Superior Court, essentially adopting the opinion of the Court of Appeal. 20 Cal.3d 180, 141 Cal.Rptr. 905, 571 P.2d 254 (1977). It concluded that "the threat of double taxation from foreign taxing authorities has no role in commerce clause considerations of multiple burdens, since burdens in international commerce are not attributable to discrimination by the taxing state and are matters for international agreement." Id., at 185, 141 Cal.Rptr., at 908, 571 P.2d, at 257. Deeming the containers' foreign ownership and use irrelevant for purposes of constitutional analysis, id., at 186, 141 Cal.Rptr., at 908, 571 P.2d, at 257-258, the court rejected appellants' Commerce Clause challenge and sustained the validity of the tax as applied.4
9
Appellants appealed. We postponed consideration of our jurisdiction to the hearing on the merits. 436 U.S. 955, 98 S.Ct. 3067, 57 L.Ed.2d 1120 (1978).
II
10
This Court has appellate jurisdiction to review a final judgment rendered by the highest court of a State in which a decision could be had "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." 28 U.S.C. § 1257(2). In this case, appellants drew in question the validity of California's ad valorem property tax, contending that the tax, as applied to their containers, was repugnant to the Commerce Clause and various treaties, and the California Supreme Court sustained the validity of the tax. Under these circumstances, this Court's appellate jurisdiction would seem manifest.
11
Appellees suggest that the California courts did not in reality uphold the tax statute against constitutional attack, but simply refused to extend to appellants a constitutional immunity from taxation. Motion to Dismiss or Affirm 2. Appellees' suggested recharacterization is unpersuasive. Appellants squarely challenged the constitutionality of the tax statute, as applied and the California Supreme Court just as squarely sustained its validity, as applied. We have held consistently that a state statute is sustained within the meaning of § 1257(2) when a state court holds it applicable to a particular set of facts as against the contention that such application is invalid on federal grounds. E. g., Cohen v. California, 403 U.S. 15, 17-18, 91 S.Ct. 1780, 1784, 29 L.Ed.2d 284 (1971); Warren Trading Post v. Arizona Tax Comm'n, 380 U.S. 685, 686, and n. 1, 85 S.Ct. 1242, 1243, 14 L.Ed.2d 165 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 61 n. 3, 83 S.Ct. 631, 634, 9 L.Ed.2d 584 (1963); Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 288-290, 42 S.Ct. 106, 107-108, 66 L.Ed. 239 (1921). We conclude that we have appellate jurisdiction of this case.
III
A.
12
The "home port doctrine" was first alluded to in Hays v. Pacific Mail S. S. Co., 17 How. 596, 58 U.S. 596, 15 L.Ed. 254 (1855). In Hays, California sought to impose property taxes on oceangoing vessels intermittently touching its ports. The vessels' home port was New York City, where they were owned, registered, and based; they engaged in intercoastal commerce by way of the Isthmus of Panama, and remained in California briefly to unload cargo and undergo repairs. This Court held that the ships had established no tax situs in California:
13
"We are satisfied that the State of California had no jurisdiction over these vessels for the purpose of taxation; they were not, properly, abiding within its limits, so as to become incorporated with the other personal property of the State; they were there but temporarily, engaged in lawful trade and commerce, with their situs at the home port, where the vessels belonged, and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid." Id., at 599-600.
14
Because the vessels were properly taxable in their home port, this Court concluded, they could not be taxed in California at all.5
15
The "home port doctrine" enunciated in Hays was a corollary of the medieval maxim mobilia sequuntur personam ("movables follow the person," see Black's Law Dictionary 1154 (rev. 4th ed. 1968)) and resulted in personal property being taxable in full at the domicile of the owner. This theory of taxation, of course, has fallen into desuetude, and the "home port doctrine," as a rule for taxation of moving equipment, has yielded to a rule of fair apportionment among the States. This Court, accordingly, has held that various instrumentalities of commerce may be taxed, on a properly apportioned basis, by the nondomiciliary States through which they travel. E. g., Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613 (1891); Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585 (1949); Braniff Airways, Inc. v. Nebraska State Bd. of Equalization, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967 (1954). In discarding the "home port" theory for the theory of apportionment, however, the Court consistently has distinguished the case of oceangoing vessels. E. g., Pullman's Palace, 141 U.S., at 23-24, 11 S.Ct. at 878 (approving apportioned tax on railroad rolling stock, but distinguishing vessels "engaged in interstate or foreign commerce upon the high seas"); Ott, 336 U.S., at 173-174, 69 S.Ct., at 434 (approving apportioned tax on barges navigating inland waterways, but "not reach[ing] the question of taxability of ocean carriage"); Braniff, 347 U.S., at 600, 74 S.Ct., at 763 (approving apportioned tax on domestic aircraft, but distinguishing vessels "used to plow the open seas"). Relying on these cases, appellants argue that the "home port doctrine," yet vital, continues to prescribe the proper rule for state taxation of oceangoing ships. Since containers are "functionally a part of the ship," Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 815 (CA2 1971), appellants conclude, the containers, like the ships, may be taxed only at their home ports in Japan, and thus are immune from tax in California.
16
Although appellants' argument, as will be seen below, has an inner logic, we decline to cast our analysis of the present case in this mold. The "home port doctrine" can claim no unequivocal constitutional source; in assessing the legitimacy of California's tax, the Hays Court did not rely on the Commerce Clause, nor could it, in 1854, have relied on the Due Process Clause of the Fourteenth Amendment. The basis of the "home port doctrine," rather, was common-law jurisdiction to tax.6 Given its origins, the doctrine could be said to be "anachronistic"; given its underpinnings, it may indeed be said to have been "abandoned." Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 320, 64 S.Ct. 950, 964, 88 L.Ed. 1283 (1944) (Stone, C. J., dissenting). As a theoretical matter, then, to rehabilitate the "home port doctrine" as a tool of Commerce Clause analysis would be somewhat odd. More importantly, to hold in this case that the "home port doctrine" survives would be to prove too much. If an oceangoing vessel could indeed be taxed only at its home port, taxation by a nondomiciliary State logically would be barred, regardless of whether the vessel were domestically or foreign owned, and regardless of whether it were engaged in domestic or foreign commerce. In Hays itself, the vessel was owned in New York and was engaged in interstate commerce through international waters. There is no need in this case to decide currently the broad proposition whether mere use of international routes is enough, under the "home port doctrine," to render an instrumentality immune from tax in a nondomiciliary State. The question here is a much more narrow one, that is, whether instrumentalities of commerce that are owned, based, and registered abroad and that are used exclusively in international commerce, may be subjected to apportioned ad valorem property taxation by a State.7
B
17
The Constitution provides that "Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Art. I, § 8, cl. 3. In construing Congress' power to "regulate Commerce . . . among the several States," the Court recently has affirmed that the Constitution confers no immunity from state taxation, and that "interstate commerce must bear its fair share of the state tax burden." Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U.S. 734, 750, 98 S.Ct. 1388, 1399, 55 L.Ed.2d 682 (1978). Instrumentalities of interstate commerce are no exception to this rule, and the Court regularly has sustained property taxes as applied to various forms of transportation equipment. See Pullman's Palace, supra (railroad rolling stock); Ott, supra (barges on inland waterways); Braniff, supra (domestic aircraft). Cf. Central Greyhound Lines v. Mealey, 334 U.S. 653, 663, 68 S.Ct. 1260, 1266, 92 L.Ed. 1633 (1948) (motor vehicles). If the state tax "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State," no impermissible burden on interstate commerce will be found. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 1079, 51 L.Ed.2d 326 (1977); Washington Revenue Dept., 435 U.S., at 750, 98 S.Ct. at 1399.
18
Appellees contend that cargo shipping containers, like other vehicles of commercial transport, are subject to property taxation, and that the taxes imposed here meet Complete Auto 's fourfold requirements. The containers, they argue, have a "substantial nexus" with California because some of them are present in that State at all times; jurisdiction to tax is based on "the habitual employment of the property within the State," Braniff, 347 U.S., at 601, 74 S.Ct. at 764, and appellants' containers habitually are so employed. The tax, moreover, is "fairly apportioned," since it is levied only on the containers' "average presence" in California.8 The tax "does not discriminate," thirdly, since it falls evenhandedly on all personal property in the State; indeed, as an ad valorem tax of general application, it is of necessity nondiscriminatory. The tax, finally, is "fairly related to the services provided by" California, services that include not only police and fire protection, but also the benefits of a trained work force and the advantages of a civilized society.
19
These observations are not without force. We may assume that, if the containers at issue here were instrumentalities of purely interstate commerce, Complete Auto would apply and be satisfied, and our Commerce Clause inquiry would be at an end. Appellants' containers, however, are instrumentalities of foreign commerce, both as a matter of fact9 and as a matter of law.10 The premise of appellees' argument is that the Commerce Clause analysis is identical, regardless of whether interstate or foreign commerce is involved. This premise, we have concluded, must be rejected. When construing Congress' power to "regulate Commerce with foreign Nations," a more extensive constitutional inquiry is required.
20
When a State seeks to tax the instrumentalities of foreign commerce, two additional considerations, beyond those articulated in Complete Auto, come into play. The first is the enhanced risk of multiple taxation. It is a commonplace of constitutional jurisprudence that multiple taxation may well be offensive to the Commerce Clause. E. g., Evco v. Jones, 409 U.S. 91, 94, 93 S.Ct. 349, 351, 34 L.Ed.2d 325 (1972); Central R. Co. v. Pennsylvania, 370 U.S. 607, 612, 82 S.Ct. 1297, 1301, 8 L.Ed.2d 720 (1962); Standard Oil Co. v. Peck, 342 U.S. 382, 384-385, 72 S.Ct. 309, 310, 96 L.Ed. 427 (1952); Ott, 336 U.S., at 174, 69 S.Ct., at 434; J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 311, 58 S.Ct. 913, 915, 82 L.Ed. 1365 (1938). In order to prevent multiple taxation of interstate commerce, this Court has required that taxes be apportioned among taxing jurisdictions, so that no instrumentality of commerce is subjected to more than one tax on its full value. The corollary of the apportionment principle, of course, is that no jurisdiction may tax the instrumentality in full. "The rule which permits taxation by two or more states on an apportionment basis precludes taxation of all of the property by the state of the domicile. . . . Otherwise there would be multiple taxation of interstate operations." Standard Oil Co. v. Peck, 342 U.S., at 384-385, 72 S.Ct. at 310; Braniff, 347 U.S., at 601, 74 S.Ct. at 764. The basis for this Court's approval of apportioned property taxation, in other words, has been its ability to enforce full apportionment by all potential taxing bodies.
21
Yet neither this Court nor this Nation can ensure full apportionment when one of the taxing entities is a foreign sovereign. If an instrumentality of commerce is domiciled abroad, the country of domicile may have the right, consistently with the custom of nations, to impose a tax on its full value.11 If a State should seek to tax the same instrumentality on an apportioned basis, multiple taxation inevitably results. Hence, whereas the fact of apportionment in interstate commerce means that "multiple burdens logically cannot occur," Washington Revenue Dept., 435 U.S., at 746-747, 98 S.Ct. at 1397-98, the same conclusion, as to foreign commerce, logically cannot be drawn. Due to the absence of an authoritative tribunal capable of ensuring that the aggregation of taxes is computed on no more than one full value, a state tax, even though "fairly apportioned" to reflect an instrumentality's presence within the State, may subject foreign commerce " 'to the risk of a double tax burden to which [domestic] commerce is not exposed, and which the commerce clause forbids.' " Evco v. Jones, 409 U.S., at 94, 93 S.Ct. at 351, quoting J. D. Adams Mfg. Co., 304 U.S., at 311, 58 S.Ct. at 915.
22
Second, a state tax on the instrumentalities of foreign commerce may impair federal uniformity in an area where federal uniformity is essential. Foreign commerce is pre-eminently a matter of national concern. "In international relations and with respect to foreign intercourse and trade the people of the United States act through a single government with unified and adequate national power." Board of Trustees v. United States, 289 U.S. 48, 59, 53 S.Ct. 509, 510, 77 L.Ed. 1025 (1933). Although the Constitution, Art. I, § 8, cl. 3, grants Congress power to regulate commerce "with foreign Nations" and "among the several States" in parallel phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be the greater.12 Cases of this Court, stressing the need for uniformity in treating with other nations, echo this distinction.13 In approving state taxes on the instrumentalities of interstate commerce, the Court consistently has distinguished oceangoing traffic, supra, at 442; these cases reflect an awareness that the taxation of foreign commerce may necessitate a uniform national rule. Indeed, in Pullman's Palace, the Court wrote that the " 'vehicles of commerce by water being instruments of intercommunication with other nations, the regulation of them is assumed by the national legislature.' " 141 U.S., at 24, 11 S.Ct. at 878, quoting Railroad Co. v. Maryland, 21 Wall. 456, 470, 22 L.Ed. 678 (1875). Finally, in discussing the Import-Export Clause, this Court, in Michelin Tire Corp. v. Wages, 423 U.S. 276, 285, 96 S.Ct. 535, 540, 46 L.Ed.2d 495 (1976), spoke of the Framers' overriding concern that "the Federal Government must speak with one voice when regulating commercial relations with foreign governments." The need for federal uniformity is no less paramount in ascertaining the negative implications of Congress' power to "regulate Commerce with foreign Nations" under the Commerce Clause.14
23
A state tax on instrumentalities of foreign commerce may frustrate the achievement of federal uniformity in several ways. If the State imposes an apportioned tax, international disputes over reconciling apportionment formulae may arise.15 If a novel state tax creates an asymmetry in the international tax structure, foreign nations disadvantaged by the levy may retaliate against American-owned instrumentalities present in their jurisdictions. Such retaliation of necessity would be directed at American transportation equipment in general, not just that of the taxing State, so that the Nation as a whole would suffer.16 If other States followed the taxing State's example, various instrumentalities of commerce could be subjected to varying degrees of multiple taxation, a result that would plainly prevent this Nation from "speaking with one voice" in regulating foreign commerce.
24
For these reasons, we believe that an inquiry more elaborate than that mandated by Complete Auto is necessary when a State seeks to tax the instrumentalities of foreign, rather than of interstate, commerce. In addition to answering the nexus, apportionment, and nondiscrimination questions posed in Complete Auto, a court must also inquire, first, whether the tax, notwithstanding apportionment, creates a substantial risk of international multiple taxation, and, second, whether the tax prevents the Federal Government from "speaking with one voice when regulating commercial relations with foreign governments." If a state tax contravenes either of these precepts, it is unconstitutional under the Commerce Clause.
C
25
Analysis of California's tax under these principles dictates that the tax, as applied to appellants' containers is impermissible. Assuming, arguendo, that the tax passes muster under Complete Auto, it cannot withstand scrutiny under either of the additional tests that a tax on foreign commerce must satisfy.
26
First, California's tax results in multiple taxation of the instrumentalities of foreign commerce. By stipulation, appellants' containers are owned, based, and registered in Japan; they are used exclusively in international commerce; and they remain outside Japan only so long as needed to complete their international missions. Under these circumstances, Japan has the right and the power to tax the containers in full. California's tax, however, creates more than the risk of multiple taxation; it produces multiple taxation in fact. Appellants' containers not only "are subject to property tax . . . in Japan," App. 32, but, as the trial court found, "are, in fact, taxed in Japan." Id., at 35. Thus, if appellees' levies were sustained, appellants "would be paying a double tax." Id., at 23.17
27
Second, California's tax prevents this Nation from "speaking with one voice" in regulating foreign trade. The desirability of uniform treatment of containers used exclusively in foreign commerce is evidenced by the Customs Convention on Containers, which the United States and Japan have signed. See n. 10, supra. Under this Convention, containers temporarily imported are admitted free of "all duties and taxes whatsoever chargeable by reason of importation." 20 U.S.T., at 304. The Convention reflects a national policy to remove impediments to the use of containers as "instruments of international traffic." 19 U.S.C. § 1322(a). California's tax, however, will frustrate attainment of federal uniformity. It is stipulated that American-owned containers are not taxed in Japan. App. 35. California's tax thus creates an asymmetry in international maritime taxation operating to Japan's disadvantage. The risk of retaliation by Japan, under these circumstances, is acute, and such retaliation of necessity would be felt by the Nation as a whole.18 If other States follow California's example (Oregon already has done so19), foreign-owned containers will be subjected to various degrees of multiple taxation, depending on which American ports they enter. This result, obviously, would make "speaking with one voice" impossible. California, by its unilateral act, cannot be permitted to place these impediments before this Nation's conduct of its foreign relations and its foreign trade.
28
Because California's ad valorem tax, as applied to appellants' containers, results in multiple taxation of the instrumentalities of foreign commerce, and because it prevents the Federal Government from "speaking with one voice" in international trade, the tax is inconsistent with Congress' power to "regulate Commerce with foreign Nations." We hold the tax, as applied, unconstitutional under the Commerce Clause.
D
29
Appellees proffer several objections to this holding. They contend, first, that any multiple taxation in this case is attributable, not to California, but to Japan. California, they say, is just trying to take its share; it should not be foreclosed by Japan's election to tax the containers in full. California's tax, however, must be evaluated in the realistic framework of the custom of nations. Japan has the right and the power to tax appellants' containers at their full value; nothing could prevent it from doing so. Appellees' argument may have force in the interstate commerce context. Cf. Moorman Mfg. Co. v. Bair, 437 U.S. 267, 277, and n. 12, 98 S.Ct. 2340, 2346, 57 L.Ed.2d 197 (1978). In interstate commerce, if the domiciliary State is "to blame" for exacting an excessive tax, this Court is able to insist upon rationalization of the apportionment. As noted above, however, this Court is powerless to correct malapportionment of taxes imposed from abroad in foreign commerce.
30
Appellees contend, secondly, that any multiple taxation created by California's tax can be cured by congressional action or by international agreement. We find no merit in this contention. The premise of appellees' argument is that a State is free to impose demonstrable burdens on commerce, so long as Congress has not pre-empted the field by affirmative regulation. But it long has been "accepted constitutional doctrine that the commerce clause, without the aid of Congressional legislation . . . affords some protection from state legislation inimical to the national commerce, and that in such cases, where Congress has not acted, this Court, and not the state legislature, is under the commerce clause the final arbiter of the competing demands of state and national interests." Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 769, 65 S.Ct. 1515, 1520, 89 L.Ed. 1915 (1945). Accord, Hughes v. Oklahoma, 441 U.S. 322, 326 and n. 2, 99 S.Ct. 1727, 1731, 60 L.Ed.2d 250 (1979); Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 328, 97 S.Ct. 599, 606, 50 L.Ed.2d 514 (1977). Appellees' argument, moreover, defeats, rather than supports, the cause it aims to promote. For to say that California has created a problem susceptible only of congressional—indeed, only of international—solution is to concede that the taxation of foreign-owned containers is an area where a uniform federal rule is essential. California may not tell this Nation or Japan how to run their foreign policies.
31
Third, appellees argue that, even if California's tax results in multiple taxation, that fact, after Moorman is insufficient to condemn a state tax under the Commerce Clause. In Moorman, the Court refused to invalidate Iowa's single-factor income tax apportionment formula, even though it posed a credible threat of overlapping taxation because of the use of three-factor formulae by other States. See also the several opinions in Moorman in dissent. 437 U.S., at 281, 282, and 283, 98 S.Ct. at 2348-2349. That case, however, is quite different from this one. In Moorman, the existence of multiple taxation, on the record then before the Court, was "speculative," id., at 276, 98 S.Ct. at 2346; on the record of the present case, multiple taxation is a fact. In Moorman, the problem arose, not from lack of apportionment, but from mathematical imprecision in apportionment formulae. Yet, this Court consistently had held that the Commerce Clause "does not call for mathematical exactness nor for the rigid application of a particular formula; only if the resulting valuation is palpably excessive will it be set aside." Northwest Airlines, Inc. v. Minnesota, 322 U.S., at 325, 64 S.Ct. at 967 (Stone, C. J., dissenting). Accord, Moorman, 437 U.S., at 274, 98 S.Ct. at 2345 (citing cases). See Hellerstein, State Taxation Under the Commerce Clause: An Historical Perspective, 29 Vand.L.Rev. 335, 347 (1976). This case, by contrast, involves no mere mathematical imprecision in apportionment; it involves a situation where true apportionment does not exist and cannot be policed by this Court at all. Moorman, finally, concerned interstate commerce. This case concerns foreign commerce. Even a slight overlapping of tax—a problem that might be deemed de minimis in a domestic context—assumes importance when sensitive matters of foreign relations and national sovereignty are concerned.20
32
Finally, appellees present policy arguments. If California cannot tax appellants' containers, they complain, the State will lose revenue, even though the containers plainly have a nexus with California; the State will go uncompensated for the services it undeniably renders the containers; and, by exempting appellants' containers from tax, the State in effect will be forced to discriminate against domestic, in favor of foreign, commerce. These arguments are not without weight, and, to the extent appellees cannot recoup the value of their services through user fees, they may indeed be disadvantaged by our decision today. These arguments, however, are directed to the wrong forum. "Whatever subjects of this [the commercial] power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." Cooley v. Board of Wardens, 12 How. 299, 319, 53 U.S. 299, 13 L.Ed. 996 (1852). The problems to which appellees refer are problems that admit only of a federal remedy. They do not admit of a unilateral solution by a State.
33
The judgment of the Supreme Court of California is reversed.
34
It is so ordered.
35
Substantially for the reasons set forth by Justice Manuel in his opinion for the unanimous Supreme Court of California, 20 Cal.3d 180, 141 Cal.Rptr. 905, 571 P.2d 254, Mr. Justice REHNQUIST is of the opinion that the judgment of that court should be affirmed.
1
"A container is a permanent reusable article of transport equipment . . . durably made of metal, and equipped with doors for easy access to the goods and for repeated use. It is designed to facilitate the handling, loading, stowage aboard ship, carriage, discharge from ship, movement, and transfer of large numbers of packages simultaneously by mechanical means to minimize the cost and risks of manually processing each package." Simon, The Law of Shipping Containers, 5 J. Mar. L. & Com. 507, 513 (1974).
See Customs Convention on Containers, Art. I(b), may 18, 1956, [1969] 20 U.S.T. 301, 304, T. I. A. S. No. 6634. Although containers may be as small as 1 cubic meter (35.3 cubic feet), 49 CFR § 420.3(c)(5) (1977), they are typically 8 feet high, 8 feet wide, and between 8 and 40 feet long. Simon, 5 J. Mar. L. & Com., at 510.
2
The opinion of the Superior Court is not officially reported.
3
The Court of Appeal also rejected, 132 Cal.Rptr., at 534, appellants' argument that California's tax was prohibited by Art. XI, §§ 1 and 4, and by Art. XXII, § 2, of the Treaty of Friendship, Commerce and Navigation Between the United States of America and Japan, Apr. 2, 1953, [1953] 4 U.S.T. 2063, T.I.A.S. No. 2863 (providing that Japanese nationals residing in the United States may not be subjected to payment of taxes "more burdensome than those borne by" United States nationals, and according Japan "most favored nation" status). Appellants repeat this argument here, and we reject it. The provisions appellants cite interdict discrimination against Japanese nationals; there is no evidence that California has treated Japanese containers differently from domestic containers for purposes of applying its property tax.
The Court of Appeal likewise rejected, 132 Cal.Rptr., at 533, appellants' argument that California's tax constituted an indirect "Duty of Tonnage" proscribed by U.S.Const., Art. I, § 10, cl. 3. Appellants repeat this argument here; in view of our disposition, we do not reach it. The Court of Appeal noted that appellants did not challenge California's tax on due process grounds. See 132 Cal.Rptr., at 532 n. 2. Although appellants proffer a due process challenge here, we need not reach it either.
4
The California Supreme Court also rejected appellants' argument that California's tax constituted "Imposts or Duties" proscribed by U.S.Const., Art. I, § 10, cl. 2. 20 Cal.3d, at 186-188, 141 Cal.Rptr., at 908-910, 571 P.2d, at 258-259. Appellants reiterate this argument here; in view of our disposition, we do not consider it. In their petition for rehearing, appellants argued that the tax contravened Art. III, §§ 1 and 2 of the General Agreement on Tariffs and Trade (GATT), 61 Stat. A18 (providing that "imported products" may not be subjected to heavier taxes, or to less favorable treatment, than like products of domestic origin). Pet. for Rehearing 35-40. The court rejected this latter argument sub silentio. 20 Cal.3d, at 190, 141 Cal.Rptr. 905, 571 P.2d 254. Appellants repeat this argument here, and we deem it frivolous. Assuming, arguendo, that appellants' containers, as instrumentalities of commerce entering this country subject to re-exportation, could be labeled "imported products" within the meaning of GATT, the provisions on which appellants rely prohibit only discriminatory treatment. As noted in n. 3, supra, there is no evidence that California has treated Japanese containers differently from domestic containers for purposes of applying its property tax.
5
The "home port doctrine" was reaffirmed, as to oceangoing vessels, in Morgan v. Parham, 16 Wall. 471, 476-477, 83 U.S. 471, 476-477, 21 L.Ed. 302 (1873), and in Southern Pacific Co. v. Kentucky, 222 U.S. 63, 69, 32 S.Ct. 13, 15, 56 L.Ed. 96 (1911). It was applied to vessels moving in inland waters in St. Louis v. Ferry Co., 11 Wall. 423, 20 L.Ed. 423 (1871), and in Ayer & Lord Tie Co. v. Kentucky, 202 U.S. 409, 421-423, 26 S.Ct. 679, 682-683, 50 L.Ed. 1082 (1906).
6
See, e. g., Note, 49 Calif.L.Rev. 968, 970-971 (1961); Note, State Taxation of International Air Transportation, 11 Stan.L.Rev. 518, 522, and n. 19 (1959); Page, Jurisdiction to Tax Tangible Movables, 1945 Wis.L.Rev. 125, 143-144.
7
Accordingly, we do not reach questions as to the taxability of foreign-owned instrumentalities engaged in interstate commerce, or of domestically owned instrumentalities engaged in foreign commerce. Cf. Sea-Land Service, Inc. v. County of Alameda, 12 Cal.3d 772, 117 Cal.Rptr. 448, 528 P.2d 56 (1974) (domestically owned containers used in intercoastal and foreign commerce held subject to apportioned property tax); Flying Tiger Line, Inc. v. County of Los Angeles, 51 Cal.2d 314, 333 P.2d 323 (1958) (domestically owned aircraft used in foreign commerce held subject to apportioned property tax).
8
By taxing property present on the "lien date," California roughly apportions its property tax for mobile goods like containers. For example, if each of appellants' containers is in California for three weeks a year, the number present on any arbitrarily selected date would be roughly 3/52 of the total entering the State that year. Taxing 3/52 of the containers at full value, however, is the same as taxing all the containers at 3/52 value. Thus, California effectively apportions its tax to reflect the containers' "average presence," i. e., the time each container spends in the State per year.
9
As noted above, the trial court found that appellants' containers are "instrumentalities of foreign commerce" that are "used constantly and exclusively for the transportation of cargo for hire in foreign commerce." App. 35, 36.
10
Appellants' containers entered the United States pursuant to the Customs Convention on Containers, see n. 1, supra, which grants containers "temporary admission free of import duties and import taxes and free of import prohibitions and restrictions," provided they are used solely in foreign commerce and are subject to re-exportation. 20 U.S.T., at 304. Similarly, 19 CFR § 10.41a(a)(3) (1978) designates containers "instruments of international traffic," with the result that they "may be released without entry or the payment of duty" under 19 U.S.C. § 1322(a). See 19 CFR § 10.41a(a)(1) (1978). A bilateral tax Convention between Japan and the United States associates containers with the vehicles that carry them, and provides that income "derived by a resident of a Contracting State . . . from the use, maintenance, and lease of containers and related equipment . . . in connection with the operation in international traffic of ships or aircraft . . . is exempt from tax in the other Contracting State." Convention Between the United States of America and Japan for the Avoidance of Double Taxation, Mar. 8, 1971, [1972] 23 U.S.T. 967, 1084-1085, T.I.A.S. No. 7365.
11
Oceangoing vessels, for example, are generally taxed only in their nation of registry; this fact in part explains the phenomenon of "flags of convenience" (a term deemed derogatory in some quarters), whereby vessels are registered under the flags of countries that permit the operation of ships "at a nominal level of taxation." See B. Boczek, Flags of Convenience 5, 56-57 (1962). Aircraft engaged in international traffic, apparently, are likewise "subject to taxation on an unapportioned basis by their country of origin." Note, 11 Stan.L.Rev., supra, n. 6, at 519, and n. 11. See, e. g., SAS, 56 Cal.3d, at 17, and n. 3, 14 Cal.Rptr., at 28, 363 P.2d, at 28, and n. 3.
12
E. g., The Federalist No. 42, pp. 279-283 (J. Cooke ed. 1961) (Madison); 3 M. Farrand, The Records of the Federal Convention of 1787, p. 478 (1911) (Madison). See Note, State Taxation of International Air Carriers, 57 Nw.U.L.Rev. 92, 101, and n. 42 (1962); Note, 11 Stan.L.Rev., supra, n. 6, at 525-526, and n. 29; Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn.L.Rev. 432, 465-475 (1941) (concluding, after an exhaustive survey of contemporary materials: "Despite the formal parallelism of the grants, there is no tenable reason for believing that anywhere nearly so large a range of action was given over commerce 'among the several states' as over that 'with foreign nations.' " Id., at 475).
13
E. g., Buttfield v. Stranahan, 192 U.S. 470, 492-493, 24 S.Ct. 349, 354, 48 L.Ed. 525 (1904) ("exclusive and absolute" power of Congress over foreign commerce); Bowman v. Chicago & N. R. Co., 125 U.S. 465, 482, 8 S.Ct. 689, 697, 31 L.Ed. 700 (1888) ("It may be argued [that] the inference to be drawn from the absence of legislation by Congress on the subject excludes state legislation affecting commerce with foreign nations more strongly than that affecting commerce among the States. Laws which concern the exterior relations of the United States with other nations and governments are general in their nature, and should proceed exclusively from the legislative authority of the nation"); Henderson v. Mayor of New York, 92 U.S. 259, 273, 23 L.Ed. 543 (1876) (regulation "must of necessity be national in its character" when it affects "a subject which concerns our international relations, in regard to which foreign nations ought to be considered and their rights respected"); Gibbons v. Ogden, 9 Wheat. 1, 228-229, 22 U.S. 1, 6 L.Ed. 23 (1824) (Johnson, J., concurring). See also Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 434, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932). In National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the Court noted that Congress' power to regulate interstate commerce may be restricted by considerations of federalism and state sovereignty. It has never been suggested that Congress' power to regulate foreign commerce could be so limited.
14
The policies animating the Import-Export Clause and the Commerce Clause are much the same. In Michelin, the Court noted that the Import-Export Clause met three main concerns: "[T]he Federal Government must speak with one voice when regulating commercial relations with foreign governments . . . ; 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 . . . were prohibited from levying taxes on [goods in transit]." 423 U.S., at 285-286, 96 S.Ct. at 540-541 (footnotes omitted). Abel, see n. 12, supra, observed that the Commerce Clause was directed to similar concerns. See 25 Minn.L.Rev., at 448, and n. 67, 452, and n. 81, 456-457, and n. 110 (need to deal in unified manner with foreign nations); id., at 446-451 (need to preserve federal revenue); id., at 448-449, and nn. 69-70, 470-471, 472-473 (need to prevent disharmony among States on account of import duties). In Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U.S. 734, 98 S.Ct. 1388, 55 L.Ed.2d 682 (1978), we noted that the third Michelin factor—preserving harmony among the States mandated the same inquiry as to the effect of a state tax as the Interstate Commerce Clause. See id., at 754-755, 98 S.Ct., at 1401-1402. In this case, similarly, the first Michelin factor—the need to speak with one voice when regulating commercial relations with foreign governments—mandates the same inquiry as to the effect of a state tax as the Foreign Commerce Clause. In Washington Revenue Dept., the Court, holding that the state tax at issue did not prevent "speaking with one voice," noted: "No foreign business or vessel is taxed." 435 U.S., at 754, 98 S.Ct., at 1401.
15
See Note, Developments in the Law—Federal Limitations on State Taxation of Interstate Business, 75 Harv.L.Rev. 953, 986 (1962) (noting the difficulty of allocating "international bridge time" for aircraft engaged in international commerce, with consequent risk of multiple taxation from overlapping apportionment formulae, and concluding that apportioned state taxation of foreign-owned aircraft should be forbidden).
16
Cf. Chy Lung v. Freeman, 92 U.S. 275, 279, 23 L.Ed. 550 (1876) (invalidating California's bond requirement for Chinese immigrants):
"[I]f this plaintiff and her twenty companions had been subjects of the Queen of Great Britain, can any one doubt that this matter would have been the subject of international inquiry, if not of a direct claim for redress? Upon whom would such a claim be made? Not upon the State of California; for, by our Constitution, she can hold no exterior relations with other nations. It would be made upon the government of the United States. If that government should get into a difficulty which would lead to war, or to suspension of intercourse, would California alone suffer, or all the Union?"
17
The stipulation of facts, App. 32, like the trial court's finding, id., at 35, states that "[a]ll containers of [appellants] are subject to property tax and are, in fact, taxed in Japan." The record does not further elaborate on the nature of Japan's property tax. Appellants have uniformly insisted, Brief 9; Tr. of Oral Arg. 3, that Japan's property tax is unapportioned, i. e., that it is imposed on the containers' full value, and we so understand the trial court's finding. Although appellees do not seriously challenge this understanding, Brief 10-11, and n. 2, amicus curiae Multistate Tax Commission suggests that the record is inadequate to establish double taxation in fact: Japan, amicus says, may offer "credits . . . for taxes paid elsewhere." Brief 8. Amicus provides no evidence to support this theory. Both the Solicitor General, Brief for United States as Amicus Curiae 19 n. 9, and the Department of State, id., at 17a, assure us that Japan taxes appellants' containers at their "full value," and we accept this interpretation of the trial court's factual finding.
Because California's tax in this case creates multiple taxation in fact, we have no occasion here to decide under what circumstances the mere risk of multiple taxation would invalidate a state tax, or whether this risk would be evaluated differently in foreign, as opposed to interstate, commerce. Compare Moorman Mfg. Co. v. Bair, 437 U.S. 267, 276-277, 98 S.Ct. 2340, 2346, 57 L.Ed.2d 197 (1978), and Washington Revenue Dept., 435 U.S., at 746, 98 S.Ct. at 1397, with, e. g., Central R. Co. v. Pennsylvania, 370 U.S. 607, 615, 82 S.Ct. 1297, 1303, 8 L.Ed.2d 720 (1962); Ott v. Mississippi Barge Line Co., 336 U.S. 169, 175, 69 S.Ct. 432, 435, 93 L.Ed. 585 (1949); and Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 326, 64 S.Ct. 950, 967, 88 L.Ed. 1283 (1944) (Stone, C. J., dissenting).
18
Retaliation by some nations could be automatic. West Germany's wealth tax statute, for example, provides an exemption for foreign-owned instrumentalities of commerce, but only if the owner's country grants a reciprocal exemption for German-owned instrumentalities. Vermogensteuergesetz (VStG), Art. 1, § 2(3), reprinted in I Bundesgesetzblatt (BGB1) 950 (Apr. 23, 1974). The European Economic Community (EEC), when apprised of California's tax on foreign-owned containers, apparently determined to consider "suitable counter-measures." Press Release, Council of the European Communities 521st Council Meeting—Transport (Luxenbourg, June 12, 1978), p. 21.
19
Ore.Op.Atty.Gen.No.7709 (Jan. 31, 1979) (citing decision below).
20
Appellees' reliance on Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 68 S.Ct. 358, 92 L.Ed. 455 (1948), is also misplaced. In that case, the appellant, a Michigan corporation, transported passengers from Detroit to an amusement park on an island in the Province of Ontario; the appellant refused to accept Negro passengers and was prosecuted under a Michigan civil rights statute. In sustaining the statute's application against Commerce Clause attack, the Court emphasized that the appellant conducted "foreign commerce" in name only. The sole business on the island was the amusement park, and it catered solely to American patrons. There were "no established means of access from the Canadian shore to the island," id., at 36, 68 S.Ct. at 362, and the island was "economically and socially . . . an amusement adjunct of the city of Detroit." Id., at 35, 68 S.Ct. at 362. The "highly closed and localized manner" in which the business was run insulated it "from all commercial or social intercourse and traffic with the people of another country usually characteristic of foreign commerce." Id., at 36, 68 S.Ct. at 362. The Court noted that the possibility of conflicting Canadian regulation was "so remote that it [was] hardly more than conceivable," id., at 37, 68 S.Ct. at 363, and concluded that, on the facts of the case, it was "difficult to imagine what national interest or policy, whether of securing uniformity in regulating commerce, affecting relations with foreign nations, or otherwise, could reasonably be found to be adversely affected by applying Michigan's statute to these facts or to outweigh her interest in doing so." Id., at 40, 68 S.Ct. at 364.
Bob-Lo is consistent with both the analysis and the result in the present case. Whereas in Bob-Lo the risk that foreign commerce would be burdened by inconsistent international regulation was "remote," the risk that foreign commerce will be burdened by international multiple taxation here has been realized in fact. And whereas the Michigan statute posed no threat at all to the Federal Government's ability to "speak with one voice" in regulating foreign trade, the impairment of federal uniformity worked by California's statute is substantial.
| 78
|
441 U.S. 418
99 S.Ct. 1804
60 L.Ed.2d 323
Frank O'Neal ADDINGTON, Appellant,v.State of TEXAS.
No. 77-5992.
Argued Nov. 28, 1978.
Decided April 30, 1979.
Syllabus
Appellant's mother filed a petition for his indefinite commitment to a state mental hospital in accordance with Texas law governing involuntary commitments. Appellant had a long history of confinements for mental and emotional disorders. The state trial court instructed the jury to determine whether, based on "clear, unequivocal and convincing evidence," appellant was mentally ill and required hospitalization for his own welfare and protection or the protection of others. Appellant contended that the trial court should have employed the "beyond a reasonable doubt" standard of proof. The jury found that appellant was mentally ill and that he required hospitalization, and the trial court ordered his commitment for an indefinite period. The Texas Court of Appeals reversed, agreeing with appellant on the standard of proof issue. The Texas Supreme Court reversed the Court of Appeals' decision and reinstated the trial court's judgment, concluding that a "preponderance of the evidence" standard of proof in a civil commitment proceeding satisfied due process and that since the trial court's improper instructions in the instant case had benefited appellant, the error was harmless.
Held : A "clear and convincing" standard of proof is required by the Fourteenth Amendment in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital. Pp. 425-433.
(a) The individual's liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity, compared with the state's interests in providing care to its citizens who are unable, because of emotional disorders, to care for themselves and in protecting the community from the dangerous tendencies of some who are mentally ill, that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence. Pp. 425-427.
(b) Due process does not require states to use the "beyond a reasonable doubt" standard of proof applicable in criminal prosecutions and delinquency proceedings. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, distinguished. The reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment. The state should not be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and the patient that are served by civil commitments. Pp. 427-431.
(c) To meet due process demands in commitment proceedings, the standard of proof has to inform the factfinder that the proof must be greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases. However, use of the term "unequivocal" in conjunction with the term "clear and convincing" in jury instructions (as included in the instructions given by the Texas state court in this case) is not constitutionally required, although states are free to use that standard. Pp. 431-433.
Appeal dismissed and certiorari granted; 557 S.W.2d 511, vacated and remanded.
Martha L. Boston, Austin, Tex., for appellant.
James F. Hury, Jr., Galveston, Tex., for appellee.
Joel I. Klein, Washington, D. C., for the American Psychiatric Ass'n, as amicus curiae, by special leave of Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question in this case is what standard of proof is required by the Fourteenth Amendment to the Constitution in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital.
2
* On seven occasions between 1969 and 1975, appellant was committed temporarily, Tex.Rev.Civ.Stat.Ann., Arts. 5547-31 to 5547-39 (Vernon 1958 and Supp. 1978-1979), to various Texas state mental hospitals and was committed for indefinite periods, Arts. 5547-40 to 5547-57, to Austin State Hospital on three different occasions. On December 18, 1975, when appellant was arrested on a misdemeanor charge of "assault by threat" against his mother, the county and state mental health authorities therefore were well aware of his history of mental and emotional difficulties.
3
Appellant's mother filed a petition for his indefinite commitment in accordance with Texas law. The county psychiatric examiner interviewed appellant while in custody and after the interview issued a Certificate of Medical Examination for Mental Illness. In the certificate, the examiner stated his opinion that appellant was "mentally ill and require[d] hospitalization in a mental hospital." Art. 5547-42 (Vernon 1958).
4
Appellant retained counsel and a trial was held before a jury to determine in accord with the statute:
5
"(1) whether the proposed patient is mentally ill, and if so
6
"(2) whether he requires hospitalization in a mental hospital for his own welfare and protection or the protection of others, and if so
7
"(3) whether he is mentally incompetent." Art. 5547-51 (Vernon 1958).
8
The trial on these issues extended over six days.
9
The State offered evidence that appellant suffered from serious delusions, that he often had threatened to injure both of his parents and others, that he had been involved in several assaultive episodes while hospitalized and that he had caused substantial property damage both at his own apartment and at his parents' home. From these undisputed facts, two psychiatrists, who qualified as experts, expressed opinions that appellant suffered from psychotic schizophrenia and that he had paranoid tendencies. They also expressed medical opinions that appellant was probably dangerous both to himself and to others. They explained that appellant required hospitalization in a closed area to treat his condition because in the past he had refused to attend outpatient treatment programs and had escaped several times from mental hospitals.
10
Appellant did not contest the factual assertions made by the State's witnesses; indeed, he conceded that he suffered from a mental illness. What appellant attempted to show was that there was no substantial basis for concluding that he was probably dangerous to himself or others.
11
The trial judge submitted the case to the jury with the instructions in the form of two questions:
12
"1. Based on clear, unequivocal and convincing evidence, is Frank O'Neal Addington mentally ill?
13
"2. Based on clear, unequivocal and convincing evidence, does Frank O'Neal Addington require hospitalization in a mental hospital for his own welfare and protection or the protection of others?"
14
Appellant objected to these instructions on several grounds, including the trial court's refusal to employ the "beyond a reasonable doubt" standard of proof.
15
The jury found that appellant was mentally ill and that he required hospitalization for his own or others' welfare. The trial court then entered an order committing appellant as a patient to Austin State Hospital for an indefinite period.
16
Appellant appealed that order to the Texas Court of Civil Appeals, arguing, among other things, that the standards for commitment violated his substantive due process rights and that any standard of proof for commitment less than that required for criminal convictions, i. e., beyond a reasonable doubt, violated his procedural due process rights. The Court of Civil Appeals agreed with appellant on the standard-of-proof issue and reversed the judgment of the trial court. Because of its treatment of the standard of proof that court did not consider any of the other issues raised in the appeal.
17
On appeal, the Texas Supreme Court reversed the Court of Civil Appeals' decision. 557 S.W.2d 511. In so holding, the Supreme Court relied primarily upon its previous decision in State v. Turner, 556 S.W.2d 563 (1977), cert. denied, 435 U.S. 929, 98 S.Ct. 1499, 55 L.Ed.2d 525 (1978).
18
In Turner, the Texas Supreme Court held that a "preponderance of the evidence" standard of proof in a civil commitment proceeding satisfied due process. The court declined to adopt the criminal law standard of "beyond a reasonable doubt" primarily because it questioned whether the State could prove by that exacting standard that a particular person would or would not be dangerous in the future. It also distinguished a civil commitment from a criminal conviction by noting that under Texas law the mentally ill patient has the right to treatment, periodic review of his condition, and immediate release when no longer deemed to be a danger to himself or others. Finally, the Turner court rejected the "clear and convincing" evidence standard because under Texas rules of procedure juries could be instructed only under a beyond-a-reasonable-doubt or a preponderance standard of proof.
19
Reaffirming Turner, the Texas Supreme Court in this case concluded that the trial court's instruction to the jury, although not in conformity with the legal requirements, had benefited appellant, and hence the error was harmless. Accordingly, the court reinstated the judgment of the trial court.
20
We noted probable jurisdiction. 435 U.S. 967, 98 S.Ct. 1604, 56 L.Ed.2d 58. After oral argument it became clear that no challenge to the constitutionality of any Texas statute was presented. Under 28 U.S.C. § 1257(2) no appeal is authorized; accordingly, construing the papers filed as a petition for a writ of certiorari, we now grant the petition.1
II
21
The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to "instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
22
Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.
23
In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.2 In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra.
24
The intermediate standard, which usually employs some combination of the words "clear," "cogent," "unequivocal," and "convincing," is less commonly used, but nonetheless "is no stranger to the civil law." Woodby v. INS, 385 U.S. 276, 285, 87 S.Ct. 483, 488, 17 L.Ed.2d 362 (1966). See also McCormick, Evidence § 320 (1954); 9 J. Wigmore, Evidence § 2498 (3d ed. 1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff's burden of proof. Similarly, this Court has used the "clear, unequivocal and convincing" standard of proof to protect particularly important individual interests in various civil cases. See, e. g., Woodby v. INS, supra, at 285, 87 S.Ct., at 487 (deportation); Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149, 5 L.Ed.2d 120 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159, 63 S.Ct. 1333, 1336, 1353, 87 L.Ed. 1796 (1943) (denaturalization).
25
Candor suggests that, to a degree, efforts to analyze what lay jurors understand concerning the differences among these three tests or the nuances of a judge's instructions on the law may well be largely an academic exercise; there are no directly relevant empirical studies.3 Indeed, the ultimate truth as to how the standards of proof affect decisionmaking may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a "standard of proof is more than an empty semantic exercise." Tippett v. Maryland, 436 F.2d 1153, 1166 (CA4 1971) (Sobeloff, J., concurring in part and dissenting in part), cert. dismissed sub nom. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972). In cases involving individual rights, whether criminal or civil, "[t]he standard of proof [at a minimum] reflects the value society places on individual liberty." 436 F.2d, at 1166.
III
26
In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual's interest in not being involuntarily confined indefinitely and the state's interest in committing the emotionally disturbed under a particular standard of proof. Moreover, we must be mindful that the function of legal process is to minimize the risk of erroneous decisions. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1341-1342, 2 L.Ed.2d 1460 (1958).
A.
27
This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. See, e. g., Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). Moreover, it is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual. Whether we label this phenomena "stigma" or choose to call it something else is less important than that we recognize that it can occur and that it can have a very significant impact on the individual.
28
The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill. Under the Texas Mental Health Code, however, the State has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others. Since the preponderance standard creates the risk of increasing the number of individuals erroneously committed, it is at least unclear to what extent, if any, the state's interests are furthered by using a preponderance standard in such commitment proceedings.
29
The expanding concern of society with problems of mental disorders is reflected in the fact that in recent years many states have enacted statutes designed to protect the rights of the mentally ill. However, only one state by statute permits involuntary commitment by a mere preponderance of the evidence, Miss.Code Ann. § 41-21-75 (1978 Supp.), and Texas is the only state where a court has concluded that the preponderance-of-the-evidence standard satisfies due process. We attribute this not to any lack of concern in those states, but rather to a belief that the varying standards tend to produce comparable results. As we noted earlier, however, standards of proof are important for their symbolic meaning as well as for their practical effect.
30
At one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously, such behavior is no basis for compelled treatment and surely none for confinement. However, there is the possible risk that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.
31
The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state. We conclude that the individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.
B
32
Appellant urges the Court to hold that due process requires use of the criminal law's standard of proof—"beyond a reasonable doubt." He argues that the rationale of the Winship holding that the criminal law standard of proof was required in a delinquency proceeding applies with equal force to a civil commitment proceeding.
33
In Winship, against the background of a gradual assimilation of juvenile proceedings into traditional criminal prosecutions, we declined to allow the state's "civil labels and good intentions" to "obviate the need for criminal due process safeguards in juvenile courts." 397 U.S., at 365-366, 90 S.Ct., at 1073. The Court saw no controlling difference in loss of liberty and stigma between a conviction for an adult and a delinquency adjudication for a juvenile. Winship recognized that the basic issue—whether the individual in fact committed a criminal act—was the same in both proceedings. There being no meaningful distinctions between the two proceedings, we required the state to prove the juvenile's act and intent beyond a reasonable doubt.
34
There are significant reasons why different standards of proof are called for in civil commitment proceedings as opposed to criminal prosecutions. In a civil commitment state power is not exercised in a punitive sense.4 Unlike the delinquency proceeding in Winship, a civil commitment proceeding can in no sense be equated to a criminal prosecution. Cf. Woodby v. INS, 385 U.S., at 284-285, 87 S.Ct., at 487-488.
35
In addition, the "beyond a reasonable doubt" standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the "moral force of the criminal law," In re Winship, 397 U.S., at 364, 90 S.Ct., at 1072, and we should hesitate to apply it too broadly or casually in noncriminal cases. Cf. ibid.
36
The heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go free. Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977). The full force of that idea does not apply to a civil commitment. It may be true that an erroneous commitment is sometimes as undesirable as an erroneous conviction, 5 J. Wigmore, Evidence § 1400 (Chadbourn rev. 1974). However, even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observation of the patient's condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected. Moreover, it is not true that the release of a genuinely mentally ill person is no worse for the individual than the failure to convict the guilty. One who is suffering from a debilitating mental illness and in need of treatment is neither wholly at liberty nor free of stigma. See Chodoff, The Case for Involuntary Hospitalization of the Mentally Ill, 133 Am.J.Psychiatry 496, 498 (1976); Schwartz, Myers & Astrachan, Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 Arch.Gen.Psychiatry 329, 334 (1974). It cannot be said, therefore, that it is much better for a mentally ill person to "go free" than for a mentally normal person to be committed.
37
Finally, the initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution. In the latter cases the basic issue is a straightforward factual question—did the accused commit the act alleged? There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous. See O'Connor v. Donaldson, 422 U.S. 563, 584, 95 S.Ct. 2486, 2498, 45 L.Ed.2d 396 (1975) (concurring opinion); Blocker v. United States, 110 U.S.App.D.C. 41, 48-49, 288 F.2d 853, 860-861 (1961) (opinion concurring in result). See also Tippett v. Maryland, 436 F.2d, at 1165 (Sobeloff, J., concurring in part and dissenting in part); Note, Civil Commitment of the Mentally Ill: Theories and Procedures, 79 Harv.L.Rev. 1288, 1291 (1966); Note, Due Proces and the Development of "Criminal" Safeguards in Civil Commitment Adjudications, 42 Ford.L.Rev. 611, 624 (1974).
38
The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable-doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical "impressions" drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient. Within the medical discipline, the traditional standard for "factfinding" is a "reasonable medical certainty." If a trained psychiatrist has difficulty with the categorical "beyond a reasonable doubt" standard, the untrained lay juror—or indeed even a trained judge who is required to rely upon expert opinion could be forced by the criminal law standard of proof to reject commitment for many patients desperately in need of institutionalized psychiatric care. See ibid. Such "freedom" for a mentally ill person would be purchased at a high price.
39
That practical considerations may limit a constitutionally based burden of proof is demonstrated by the reasonable doubt standard, which is a compromise between what is possible to prove and what protects the rights of the individual. If the state was required to guarantee error-free convictions, it would be required to prove guilt beyond all doubt. However, "[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person." Patterson v. New York, supra, 432 U.S., at 208, 97 S.Ct., at 2326. Nor should the state be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and the patient that are served by civil commitments.
40
That some states have chosen—either legislatively or judicially—to adopt the criminal law standard5 gives no assurance that the more stringent standard of proof is needed or is even adaptable to the needs of all states. The essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold. As the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum. See Monahan & Wexler, A Definite Maybe: Proof and Probability in Civil Commitment, 2 Law & Human Behavior 37, 41-42 (1978); Share, The Standard of Proof in Involuntary Civil Commitment Proceedings, 1977 Detroit College L.Rev. 209, 210. We conclude that it is unnecessary to require states to apply the strict, criminal standard.
C
41
Having concluded that the preponderance standard falls short of meeting the demands of due process and that the reasonable-doubt standard is not required, we turn to a middle level of burden of proof that strikes a fair balance between the rights of the individual and the legitimate concerns of the state. We note that 20 states, most by statute, employ the standard of "clear and convincing" evidence;6 3 states use "clear, cogent, and convincing" evidence;7 and 2 states require "clear, unequivocal and convincing" evidence.8
42
In Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), dealing with deportation, and Schneiderman v. United States, 320 U.S. 118, 125, 159, 63 S.Ct. 1333, 1336, 1353, 87 L.Ed. 1796, dealing with denaturalization, the Court held that "clear, unequivocal, and convincing" evidence was the appropriate standard of proof. The term "unequivocal," taken by itself, means proof that admits of no doubt,9 a burden approximating, if not exceeding, that used in criminal cases. The issues in Schneiderman and Woodby were basically factual and therefore susceptible of objective proof and the consequences to the individual were unusually drastic—loss of citizenship and expulsion from the United States.
43
We have concluded that the reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment. Similarly, we conclude that use of the term "unequivocal" is not constitutionally required, although the states are free to use that standard. To meet due process demands, the standard has to inform the factfinder that the proof must be greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases.
44
We noted earlier that the trial court employed the standard of "clear, unequivocal and convincing" evidence in appellant's commitment hearing before a jury. That instruction was constitutionally adequate. However, determination of the precise burden equal to or greater than the "clear and convincing" standard which we hold is required to meet due process guarantees is a matter of state law which we leave to the Texas Supreme Court.10 Accordingly, we remand the case for further proceedings not inconsistent with this opinion.
45
Vacated and remanded.
46
Mr. Justice POWELL took no part in the consideration or decision of this case.
1
See Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); May v. Anderson, 345 U.S. 528, 72 S.Ct. 840, 97 L.Ed. 1221 (1953). As in those cases, we continue to refer to the parties as appellant and appellee. See Kulko v. California Superior Court, supra, 436 U.S., at 90 n. 4, 98 S.Ct., at 1696.
2
Compare Morano, A Reexamination of the Development of the Reasonable Doubt Rule, 55 B.U.L.Rev. 507 (1975) (reasonable doubt represented a less strict standard than previous common-law rules), with May, Some Rules of Evidence, 10 Am.L.Rev. 642 (1875) (reasonable doubt constituted a stricter rule than previous ones). See generally Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299 (1977).
3
There have been some efforts to evaluate the effect of varying standards of proof on jury factfinding, see, e. g., L. S. E. Jury Project, Juries and the Rules of Evidence, 1973 Crim.L.Rev. 208, but we have found no study comparing all three standards of proof to determine how juries, real or mock, apply them.
4
The State of Texas confines only for the purpose of providing care designed to treat the individual. As the Texas Supreme Court said in State v. Turner, 556 S.W.2d 563, 566 (1977):
"The involuntary mental patient is entitled to treatment, to periodic and recurrent review of his mental condition, and to release at such time as he no longer presents a danger to himself or others."
5
Haw.Rev.Stat. § 334-60(b)(4)(I) (Supp. 1978); Idaho Code § 66-329(i) (Supp. 1978); Kan.Stat.Ann. § 59-2917 (1976); Mont.Rev.Codes Ann. § 38-1305(7) (1977 Supp.); Okla.Stat., Tit. 43A, § 54.1(C) (1978 Supp.); Ore.Rev.Stat. § 426.130 (1977); Utah Code Ann. § 64-7-36(6) (1953); Wis.Stat. § 51.20(14)(e) (Supp.1978-1979); Superintendent of Worcester State Hospital v. Hagberg, 374 Mass. 271, 372 N.E.2d 242 (1978); Proctor v. Butler, 117 N.H. 927, 380 A.2d 673 (1977); In re Hodges, 325 A.2d 605 (D.C.App.1974); Lausche v. Commissioner of Public Welfare, 302 Minn. 65, 225 N.W.2d 366 (1974), cert. denied, 420 U.S. 993, 95 S.Ct. 1430, 43 L.Ed.2d 674 (1975). See also In re J. W., 44 N.J.Super. 216, 130 A.2d 64 (App.Div.), cert. denied, 24 N.J. 465, 132 A.2d 558 (1957); Denton v. Commonwealth, 383 S.W.2d 681 (Ky.App.1964) (dicta).
6
Ariz.Rev.Stat.Ann. § 36-540 (1974); Colo.Rev.Stat. § 27-10-111(1) (Supp.1976); Conn.Gen.Stat. § 17-178(c) (1979); Del.Code Ann., Tit. 16, § 5010(2) (Supp.1978); Ga.Code § 88-501(u) (1978); Ill.Rev.Stat. ch. 911/2, § 3-808 (Supp.1977); Iowa Code § 229.12 (1979); La.Rev.Stat.Ann., § 28:55E (West Supp. 1979); Me.Rev.Stat.Ann., Tit. 34, § 2334(5)(A)(1) (1978); Mich.Stat.Ann. § 14.800(465) (1976) [M.C.L.A. § 330.1465]; Neb.Rev.Stat. § 83-1035 (1976); N.M.Stat.Ann. § 43-1-11C (1978); N.D.Cent.Code § 25-03.1-19 (1978); Ohio Rev.Code Ann. § 5122.15(B) (Supp.1978); Pa.Stat.Ann., Tit. 50, § 7304(f) (Purdon Supp.1978-1979); S.C.Code § 44-17-580 (Supp.1978); S.D.Comp.Laws Ann. § 27A-9-18 (1977); Vt.Stat.Ann., Tit. 18, § 7616(b) (Supp.1978); Md. Dept. of Health & Mental Hygiene Reg. 10.21.03G (1973); In re Beverly, 342 So.2d 481 (Fla.1977).
7
N.C.Gen.Stat. § 122-58.7(i) (1977 Supp.); Wash.Rev.Code § 71.05.310; State ex rel. Hawks v. Lazaro, 157 W.Va. 417, 202 S.E.2d 109 (1974).
8
Ala.Code § 22-52-10(a) (Supp.1978); Tenn.Code Ann. § 33-604(d) (Supp.1978).
9
See Webster's Third New International Dictionary 2494 (1961).
10
We noted earlier the court's holding on harmless error. See supra, at 1087.
| 34
|
441 U.S. 468
99 S.Ct. 1829
60 L.Ed.2d 365
Herbert G. WILKINS, Sr.v.UNITED STATES.
No. 78-5885.
April 30, 1979.
PER CURIAM.
1
The pro se petitioner was convicted in a Federal District Court on criminal charges, 422 F.Supp. 1371 (E.D.Pa.1977), and the Court of Appeals for the Third Circuit affirmed the convictions on June 9, 1977, by judgment order. 559 F.2d 1210. This petition, filed on December 14, 1978, is therefore 17 months out of time as a conventional petition for certiorari under this Court's Rule 22(2).
2
But this is not a conventional petition for certiorari. The petitioner states that he asked his court-appointed lawyer to file a timely petition for certiorari and that in September 1977 he received an assurance from the lawyer that this request had been honored. In July 1978, the petitioner wrote to the Clerk of this Court to inquire about his case and learned that no such petition had ever been filed. He then wrote several letters to his lawyer, but the letters were never answered. All these factual allegations are supported by the petitioner's affidavit and by the affidavits of his wife and his minister.
3
The petition now before us presents a single question:
4
"What remedy is available for petitioner when court-appointed attorney failed and refused to file timely petition for writ of certiorari in defiance of the petitioner's written request that same be done?"
5
The answer to that question is to be found in the Criminal Justice Act of 1964, 18 U.S.C. §§ 3006A(c), 3006A(d)(6), and 3006A(g). The Solicitor General interprets these provisions to mean that a person whose federal conviction has been affirmed is entitled to a lawyer's help in seeking certiorari here. Indeed, the Courts of Appeals for all of the Circuits provide in their rules or in plans adopted pursuant to the Criminal Justice Act that a court-appointed lawyer must, if his client wishes to seek review in this Court, represent him in filing a petition for certiorari.* Had the petitioner presented his dilemma to the Court of Appeals by way of a motion for the appointment of counsel to assist him in seeking review here, the court then could have vacated its judgment affirming the convictions and entered a new one, so that this petitioner, with the assistance of counsel, could file a timely petition for certiorari. Cf. Doherty v. United States, 404 U.S. 28, 92 S.Ct. 175, 30 L.Ed.2d 149 (1971); Schreiner v. United States, 404 U.S. 67, 92 S.Ct. 326, 30 L.Ed.2d 222 (1971).
6
The Solicitor General has recommended that we grant certiorari, vacate the judgment, and remand this case to the Court of Appeals so that a timely petition for certiorari to review the appellate judgment can be filed. Even though this petitioner, unlike the claimants in the Doherty and Schreiner cases, did not first apply to the Court of Appeals for relief, we agree with the suggestion of the Solicitor General.
7
The Court of Appeals, the Solicitor General, and this Court all have a strong interest in ensuring that lawyers appointed to aid indigents discharge their responsibilities fairly. Yet this prisoner's story of his appointed lawyer's indifference to his legitimate request for help is all too familiar. The petitioner's decision to apply directly to this Court for relief is under these circumstances understandable. Accordingly, the motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for further proceedings, including the reentry of its judgment affirming the petitioner's convictions and, if appropriate, appointment of counsel to assist the petitioner in seeking timely review of that judgment in this Court.
8
It is so ordered.
9
Petitioner having made no substantive challenge to the judgment of the Court of Appeals in his petition for certiorari, Mr. Justice REHNQUIST dissents from the Court's action in vacating that judgment.
10
Because Mr. Justice STEVENS believes the Court of Appeals is the forum in which petitioner's allegations should be evaluated in the first instance, he would not vacate that court's judgment summarily.
11
Mr. Justice POWELL took no part in the decision of this case.
*
The Criminal Justice Act Plan adopted by the Court of Appeals for the Third Circuit provides:
"If, after an adverse decision by the Court of Appeals, a review by the Supreme Court of the United States is to be sought, the appointed attorney shall prepare a petition for certiorari and other necessary and appropriate documents in connection therewith." See A Plan for the United States Court of Appeals for the Third Judicial Circuit Pursuant to the Criminal Justice Act of 1964, § III-6 (effective Sept. 1, 1971).
For comparable provisions or rules in effect in other Circuits, see generally United States Courts of Appeals Rules, 28 U.S.C.A. (Supp.1978). See also plans under the Criminal Justice Act adopted by the Courts of Appeals for the Fourth, the Seventh, and the District of Columbia Circuits.
| 12
|
441 U.S. 458
99 S.Ct. 2044
60 L.Ed.2d 354
John S. TOLL, President, University of Maryland, petitioner,v.Juan Carlos MORENO et al
No. 77-154
Supreme Court of the United States
April 30, 1979
On Writ of
Certiorari to the United States Court of Appeals for the Fourth Circuit.
April 30, 1979. PER CURIAM.
1
This decision supplements Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978), decided last Term. Respondents in Elkins represented a class of nonimmigrant alien residents of Maryland who either held or were financially dependent upon a person 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). Respondents were not granted "in-state" status for tuition purposes at the University of Maryland because they were conclusively presumed by the University to be nondomiciliaries of the State. Respondents brought suit against the University and its President, alleging that the University's failure to grant respondents in-state status violated various federal laws, 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).
2
In Elkins v. Moreno, supra, we held that "[b]ecause 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. [749,] 771, 95 S.Ct. 2457, 45 L.Ed.2d 522 [1975]." 435 U.S., at 660, 98 S.Ct., at 1346. Since the applicability of Vlandis depended on whether respondents could in fact become Maryland domiciliaries, we certified, pursuant to Subtit. 6 of Tit. 12 of the Md.Cts. & Jud.Proc.Code (1974), the following question to the Maryland Court of Appeals:
3
"Are persons residing in Maryland who hold or are named
4
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?" Elkins v. Moreno, supra, at 668-669, 98 S.Ct. 1338.
5
On June 23, 1978, approximately two months after the decision in Elkins,* the Board of Regents of the University of Maryland unanimously adopted "A Resolution Clarifying the Purposes, Meaning, and Application of the Policy of the University of Maryland for Determination of In-State Status for Admission, Tuition, and Charge-Differential Purposes, Insofar as It Denies In-State Status to Nonimmigrant Aliens." In this resolution, the Board of Regents stated, inter alia:
6
"Purposes and Interests of In-State Policy. The Board of Regents finds and declares that the policy approved on September 21, 1973, insofar as it denies in-state status to nonimmigrant aliens, serves a number of substantial purposes and interests, whether or not it conforms to the generally or otherwise applicable definition of domicile under the Maryland common law, including but not limited to:
7
"(a) limiting the University's expenditures by granting a higher subsidy toward the expenses of providing educational services to that class of persons who, as a class, are more likely to have a close affinity to the State and to contribute more to its economic well-being;
8
"(b) achieving equalization between the affected classes of the expenses of providing educational services;
9
"(c) efficiently administering the University's in-state determination and appeals process; and
10
"(d) preventing disparate treatment among categories of nonimmigrants with respect to admissions, tuition, and charge-differentials.
11
"Reaffirmation of In-State Policy. Regardless of whether or not the policy approved by the Board of Regents on September 21, 1973, conforms with the generally or otherwise applicable definition of domicile under the Maryland common law, the Board of Regents reaffirms that policy because it intends and deems it to serve a number of substantial purposes and interests, including but not limited to those set forth above."
12
On February 21, 1979, the Maryland Court of Appeals unanimously answered our certified question in the negative, stating that "[s]ince nothing in the general Maryland law of domicile renders G-4 visa holders, or their dependents, incapable of becoming domiciled in this State, the answer to the certified question is 'No.' " Toll v. Moreno, 284 Md. 425, 444, 397 A.2d 1009, 1019. The Maryland Court of Appeals also declined to consider the implications of the Board of Regents' clarifying resolution, because, although the resolution represented a change of the University's position, the implications of that change were beyond the scope of the certified question. Id., at 436-437, 397 A.2d, at 1014-1015.
13
The Attorney General of Maryland now requests that this case "be restored to the Supreme Court's active docket for further briefing and argument . . . ." We must deny this request because the Board of Regents' clarifying resolution has fundamentally altered the posture of the case. Our decision in Elkins rests on the premise that "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" acquire such domicile. 435 U.S., at 661, 98 S.Ct., at 1347. After the clarifying resolution, this premise no longer appears to be true. And if domicile is not the "paramount" policy consideration of the University, this case is no longer "squarely within Vlandis as limited by Salfi . . . ." Id., at 660, 98 S.Ct., at 1346. The clarifying resolution thus raises new issues of constitutional law which should be addressed in the first instance by the District Court. We therefore vacate the judgment of the Court of Appeals and remand to the District Court for further consideration in light of our opinion and judgment in Elkins, the opinion and judgment of the Maryland Court of Appeals in Toll, and the Board of Regents' clarifying resolution of June 23, 1978.
14
So ordered.
*
The order certifying the question to the Maryland Court of Appeals was dated April 25, 1978.
| 89
|
441 U.S. 471
99 S.Ct. 1831
60 L.Ed.2d 404
Harry G. BURKS, Jr., et al., Petitioners,v.Howard M. LASKER et al.
No. 77-1724.
Argued Jan. 17, 1979.
Decided May 14, 1979.
Syllabus
Respondents, shareholders of an investment company registered under the Investment Company Act of 1940 (ICA), brought this derivative suit in Federal District Court against several of the company's directors and its registered investment adviser, alleging that the defendants had violated their duties under the ICA, the Investment Advisers Act of 1940 (IAA), and the common law in connection with a purchase by the company of the commercial paper of another company. The investment company's five directors who were neither affiliated with the investment adviser nor defendants in the action, acting as a quorum pursuant to the company's bylaws, concluded that continuation of the litigation was contrary to the best interests of the company and its shareholders and moved the District Court to dismiss the action. Finding no evidence that the directors who voted to terminate the suit had acted other than independently and in good faith, the District Court entered summary judgment against respondents. The Court of Appeals reversed, holding that because of the ICA, disinterested directors of an investment company have no power to foreclose the continuation of nonfrivolous litigation brought by shareholders against majority directors for breach of their fiduciary duties.
Held: In suits alleging violations of the ICA and IAA, federal courts should, as a matter of federal law, apply state law governing the authority of independent directors to discontinue derivative suits to the extent such law is consistent with the policies of the ICA and the IAA. Congress did not require that States, or federal courts, absolutely forbid director termination of all nonfrivolous actions. Pp. 475-486.
(a) Assuming, without deciding, that respondents have implied, derivative causes of action under the federal Acts, state law cannot operate of its own force. Instead, "the overriding federal law applicable here would, where the facts required, control the appropriateness of redress despite the provisions of state corporation law . . . ." J. I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (emphasis added). Pp. 475-477.
(b) The fact that the scope of respondents' federal right is a federal question does not, however, make state law irrelevant. Since the ICA does not purport to be the source of authority for managerial power but instead functions primarily to impose controls and restrictions on the internal management of investment companies, the ICA and the IAA do not require that federal law displace state laws governing the powers of directors unless the state laws permit action prohibited by the Acts, or unless "their application would be inconsistent with the federal policy underlying the cause of action . . . ." Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295. Pp. 477-480.
(c) Thus, the threshold inquiry in this case (not determined by either of the courts below) should have been to determine whether state law permitted the disinterested directors to terminate respondents' suit; if so, the next inquiry should have been whether such a state rule was consistent with the policy of the federal Acts. The Court of Appeals incorrectly implied that the only state law that would be consistent with the ICA would be one which absolutely prohibited the termination of nonfrivolous derivative suits. Although the Acts may justify some restraints upon the unfettered discretion of even disinterested mutual fund directors, they do not justify a flat rule that directors may never terminate nonfrivolous actions involving codirectors. The structure and purpose of the ICA indicate that Congress entrusted to the independent directors of investment companies, exercising the authority granted to them by state law, the primary responsibility for looking after the interests of the funds' shareholders. There may be situations in which the independent directors could reasonably believe that the best interests of the shareholders call for a decision not to sue—as, for example, where the costs of litigation to the corporation outweigh any potential recovery. In such cases, it would be consistent with the Act to allow the independent directors to terminate a suit, even though not frivolous. Pp. 480-485.
567 F.2d 1208, reversed and remanded.
Daniel A. Pollack, Pikesville, Md., for petitioners.
Ralph C. Ferrara for the Securities and Exchange Commission, Washington, D. C., as amicus curiae, by special leave of Court.
Joseph H. Einstein, New York City, for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question presented in this case is whether the disinterested directors of an investment company may terminate a stockholders' derivative suit brought against other directors under the Investment Company and Investment Advisers Acts of 1940, 15 U.S.C. § 80a-1 et seq.; 15 U.S.C. § 80b-1 et seq. To decide that question, we must determine the appropriate roles of federal and state law in such a controversy.
2
Respondents, shareholders, of Fundamental Investors, Inc., an investment company registered under the Investment Company Act, brought this derivative suit in February 1973 in the District Court for the Southern District of New York. The action was brought against several members of the company's board of directors and its registered investment adviser, Anchor Corp. The complaint alleged that the defendants had violated their duties under the Investment Company Act (ICA),1 the Investment Advisers Act (IAA),2 and the common law in connection with the 1969 purchase by the corporation of $20 million in Penn Central Transportation Co. commercial paper.3 In response to the suit, Fundamental's board of directors determined that the five of its members who were neither affiliated with the investment adviser4 nor defendants in the action would decide what position the company should take in the case. On the basis of outside counsel's recommendation and their own investigation, the five, acting as a quorum pursuant to the company's bylaws, concluded that continuation of the litigation was contrary to the best interests of the company and its shareholders and moved the District Court to dismiss the action.
3
The District Court held that under the so-called "business judgment rule," a quorum of truly disinterested and independent directors has authority to terminate a derivative suit which they in good faith conclude is contrary to the company's best interests. 404 F.Supp. 1172 (1975). After permitting discovery on the question of the directors' independence, the District Court entered summary judgment against respondents, finding no evidence that the directors who voted to terminate the suit had acted other than independently and in good faith. 426 F.Supp. 844 (1977). The Court of Appeals for the Second Circuit reversed, 567 F.2d 1208, 1212 (CA2 1978), holding that as a consequence of the ICA, "disinterested directors of an investment company do not have the power to foreclose the continuation of nonfrivolous litigation brought by shareholders against majority directors for breach of their fiduciary duties." We granted certiorari, 439 U.S. 816, 99 S.Ct. 75, 58 L.Ed.2d 106 (1978). We reverse.
4
* A fundamental issue in this case is which law—state or federal—governs the power of the corporation's disinterested directors to terminate this derivative suit. The first step in making that determination is to ascertain which law creates the cause of action alleged by the plaintiffs. Neither the ICA nor the IAA—the plaintiff's two federal claims—expressly creates a private cause of action for violation of the sections relevant here. However, on the basis of District and Circuit precedent, the courts below assumed that an implied private right of action existed under each Act. Brown v. Bullock, 194 F.Supp. 207, 222-228 (SDNY), aff'd, 294 F.2d 415 (CA2 1961) (en banc) (ICA); Abrahamson v. Fleschner, 568 F.2d 862 (CA2 1977) (IAA); Bolger v. Laventhol, Krekstein, Horwath & Horwath, 381 F.Supp. 260 (SDNY1974) (IAA). The two courts also sanctioned the bringing of the suit in derivative form, apparently assuming that, as we held in J. I. Case Co. v. Borak, 377 U.S. 426, 432, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964), "[t]o hold that derivative actions are not within the sweep of the [right] would . . . be tantamount to a denial of private relief." As petitioners never disputed the existence of private, derivative causes of action under the Acts, and as in this Court all agree that the question has not been put in issue, Brief for Petitioners 28; Brief for Respondents 15, we shall assume without deciding that respondents have implied, derivative causes of action under the ICA and IAA.5
5
Since we proceed on the premise of the existence of a federal cause of action, it is clear that "our decision is not controlled by Erie R. Co. v. Tompkins, 304 U.S. 64 [58 S.Ct. 817, 82 L.Ed. 1188]," and state law does not operate of its own force. Sola Electric Co. v. Jefferson Co., 317 U.S. 173, 176, 63 S.Ct. 172, 174, 87 L.Ed. 165 (1942). See Board of Comm'rs v. United States, 308 U.S. 343, 349-350, 60 S.Ct. 285, 287-288, 84 L.Ed. 313 (1939); Deitrick v. Greaney, 309 U.S. 190, 200, 60 S.Ct. 480, 484, 84 L.Ed. 694 (1940); C. Wright, Federal Courts 284 (3d ed. 1976); Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797, 799-800 (1957); Hart, The Relations Between State and Federal Law, 54 Colum.L.Rev. 489, 529 (1954); 2 L. Loss, Securities Regulation 971 (2d ed. 1961). Rather, "[w]hen a federal statute condemns an act as unlawful the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted." Sola Electric Co. v. Jefferson Co., supra, 317 U.S., at 176, 63 S.Ct., at 174. See Tunstall v. Locomotive Firemen & Enginemen, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187 (1944); Board of Comm'rs v. United States, supra. Cf. United States v. Kimbell Foods, Inc., 440 U.S. 715, 726-727, 99 S.Ct. 1448, 1457-1458, 59 L.Ed.2d 711 (1979); Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). Legal rules which impact significantly upon the effectuation of federal rights must, therefore, be treated as raising federal questions. See Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554 (1978) (statute of limitations); Auto Workers v. Hoosier Corp., 383 U.S. 696, 701, 86 S.Ct. 1107, 1110, 16 L.Ed.2d 192 (1966) (same); J. I. Case Co. v. Borak, supra, 377 U.S., at 435, 84 S.Ct., at 1561 (security for expenses statute); Sola Electric Co. v. Jefferson Co., 317 U.S., at 176, 63 S.Ct., at 173 (rules of estoppel); Deitrick v. Greaney, supra, 309 U.S., at 200, 60 S.Ct., at 484 (affirmative defense to federal claim). See generally Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N.Y.U.L.Rev. 383, 408 (1964); Hill, State Procedural Law in Federal Nondiversity Litigation, 69 Harv.L.Rev. 66, 92-93 (1955). Thus, "the overriding federal law applicable here would, where the facts required, control the appropriateness of redress despite the provisions of state corporation law . . . ." J. I. Case Co. v. Borak, supra, 377 U.S., at 434, 84 S.Ct., at 1561 (emphasis added).
II
6
The fact that "the scope of [respondents'] federal right is, of course, a federal question" does not, however, make state law irrelevant. De Sylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 980, 100 L.Ed. 1415 (1956). Cf. United States v. Kimbell Foods, Inc., supra, 440 U.S., at 727-728, 99 S.Ct., at 1458. It is true that in certain areas we have held that federal statutes authorize the federal courts to fashion a complete body of federal law. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 456-457, 77 S.Ct. 912, 915, 917-918, 1 L.Ed.2d 972 (1957). Corporation law, however, is not such an area.
7
A derivative suit is brought by shareholders to enforce a claim on behalf of the corporation. See Note, The Demand and Standing Requirements in Stockholder Derivative Actions, 44 U.Chi.L.Rev. 168 (1976). This case involves the question whether directors are authorized to determine that certain claims not be pursued on the corporation's behalf. As we have said in the past, the first place one must look to determine the powers of corporate directors is in the relevant State's corporation law. See Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 479, 97 S.Ct. 1292, 1303, 51 L.Ed.2d 480 (1977); Cort v. Ash, 422 U.S. 66, 84, 95 S.Ct. 2080, 2091, 45 L.Ed.2d 26 (1975). "Corporations are creatures of state law," ibid., and it is state law which is the font of corporate directors' powers. By contrast, federal law in this area is largely regulatory and prohibitory in nature—it often limits the exercise of directorial power, but only rarely creates it. Cf. Price v. Gurney, 324 U.S. 100, 107, 65 S.Ct. 513, 516, 89 L.Ed. 776 (1945). In short, in this field congressional legislation is generally enacted against the background of existing state law; Congress has never indicated that the entire corpus of state corporation law is to be replaced simply because a plaintiff's cause of action is based upon a federal statute. Cort v. Ash, supra; Santa Fe Industries, Inc. v. Green, supra. See United Copper Securities Co. v. Amalgamated Copper Co., 244 U.S. 261, 264, 37 S.Ct. 509, 510, 61 L.Ed. 1119 (1917). Cf. United States v. Yazell, 382 U.S. 341, 352-353, 86 S.Ct. 500, 506-507, 15 L.Ed.2d 404 (1966) (state family law); De Sylva v. Ballentine, supra, 351 U.S., at 580, 76 S.Ct., at 979 (same); P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, The Federal Courts and The Federal System 470-471 (1973 ed.).
8
Federal regulation of investment companies and advisers is not fundamentally different in this respect. Mutual funds, like other corporations, are incorporated pursuant to state, not federal, law. Although the Court of Appeals found it significant that "nothing in . . . the legislation regulating investment companies and their advisers . . . suggests that . . . disinterested directors . . . have the power to terminate litigation brought by mutual fund stockholders . . . ," 567 F.2d, at 1210, such silence was to be expected. The ICA does not purport to be the source of authority for managerial power; rather, the Act functions primarily to "impos[e] controls and restrictions on the internal management of investment companies." United States v. National Assn. of Securities Dealers, 422 U.S. 694, 705 n. 13, 95 S.Ct. 2427, 2436 n. 13, 45 L.Ed.2d 486 (1975) (emphasis added).
9
The ICA and IAA, therefore, do not require that federal law displace state laws governing the powers of directors unless the state laws permit action prohibited by the Acts, or unless "their application would be inconsistent with the federal policy underlying the cause of action . . . ." Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975).6 Cf. Robertson v. Wegmann, supra, 436 U.S., at 590, 98 S.Ct., at 1995; Auto Workers v. Hoosier Corp., supra, 383 U.S., at 706-707, 86 S.Ct., at 1113-1114; Sola Electric Co. v. Jefferson Co., 317 U.S., at 176, 63 S.Ct., at 173. Although "[a] state statute cannot be considered 'inconsistent' with federal law merely because the statute causes the plaintiff to lose the litigation," Robertson v. Wegmann, supra, at 593, 98 S.Ct., at 1997, federal courts must be ever vigilant to insure that application of state law poses "no significant threat to any identifiable federal policy or interest . . . ." Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966). See Auto Workers v. Hoosier Corp., supra, 383 U.S., at 702, 86 S.Ct., at 1111. Cf. Brown v. Western R. Co. of Alabama, 338 U.S. 294, 298, 70 S.Ct. 105, 107, 94 L.Ed. 100 (1949). And, of course, this means that "unreasonable," Wallis v. Pan American Petroleum Corp., supra, at 70, 86 S.Ct., at 1305, or "specific aberrant or hostile state rules," United States v. Little Lake Misere Land Co., 412 U.S. 580, 596, 93 S.Ct. 2389, 2398, 37 L.Ed.2d 187 (1973), will not be applied. See, e. g., Levitt v. Johnson, 334 F.2d 815, 819-820 (CA1 1964). The "consistency" test guarantees that "[n]othing that the state can do will be allowed to destroy the federal right," Board of Comm'rs v. United States, 308 U.S., at 350, 60 S.Ct., at 288, and yet relieves federal courts of the necessity to fashion an entire body of federal corporate law out of whole cloth.
III
10
The foregoing indicates that the threshold inquiry for a federal court in this case should have been to determine whether state law permitted Fundamental's disinterested directors to terminate respondents' suit. If so, the next inquiry should have been whether such a state rule was consistent with the policy of the ICA and IAA. Neither the District Court nor the Court of Appeals decided the first question, apparently because neither considered state law particularly significant in determining the authority of the independent directors to terminate the action.7 And in that circumstance, neither court addressed the question of inconsistency between state and federal law. At least implicitly, however, the Court of Appeals did make a related determination. Its holding that nonfrivolous derivative suits may never be terminated makes manifest its view that no other rule—whether state or federal—would be consistent with the ICA.8 We disagree.
11
The Court of Appeals correctly noted, 567 F.2d, at 1210-1211, that Congress was concerned about the potential for abuse inherent in the structure of investment companies. A mutual fund is a pool of assets, consisting primarily of portfolio securities, and belonging to the individual investors holding shares in the fund. Tannenbaum v. Zeller, 552 F.2d 402, 405 (CA2 1977). Congress was concerned because
12
"[m]utual funds, with rare exception, are not operated by their own employees. Most funds are formed, sold, and managed by external organizations, [called 'investment advisers,'] that are separately owned and operated. . . .
13
The advisers select the funds' investments and operate their businesses. . . . Since a typical fund is organized by its investment adviser which provides it with almost all management services . . ., a mutual fund cannot, as a practical matter sever its relationship with the adviser. Therefore, the forces of arm's-length bargaining do not work in the mutual fund industry in the same manner as they do in other sectors of the American economy." S.Rep.No. 91-184, p. 5 (1969); U.S.Code Cong. & Admin.News 1910, pp. 4897, 4901.
14
As a consequence, "[t]he relationship between investment advisers and mutual funds is fraught with potential conflicts of interest," Galfand v. Chestnutt Corp., 545 F.2d 807, 808 (CA2 1976). See generally S.Rep.No. 91-184, supra, at 5; H.R.Rep.No. 2337, 89th Cong., 2d Sess., 9, 45-46, 64 (1966); H.R.Doc.No. 136, 77th Cong., 1st Sess., 2485-2490, 2569, 2579-2580, 2775 (1942); Hearings before a Subcommittee of the House Committee on Interstate and Foreign Commerce on H.R. 10065, 76th Cong., 3d Sess., 58-59 (1940); Securities and Exchange Commission, Report on Investment Trusts and Investment Companies, pt. 3, pp. 1-49 (1940); 15 U.S.C. § 80a-1(b) (findings and declaration of policy).9 Yet, while these potential conflicts may justify some restraints upon the unfettered discretion of even disinterested mutual fund directors, particularly in their transactions with the investment adviser,10 they hardly justify a flat rule that directors may never terminate nonfrivolous derivative actions involving codirectors. In fact, the evidence is overwhelming that Congress did not intend to require any such absolute rule.
15
The cornerstone of the ICA's effort to control conflicts of interest within mutual funds is the requirement that at least 40% of a fund's board be composed of independent outside directors.11 15 U.S.C. § 80a-10(a). As originally enacted § 10 of the Act required that these 40% not be officers or employees of the company or "affiliated persons" of its adviser. 54 Stat. 806. In 1970, Congress amended the Act to strengthen further the independence of these directors adding the stricter requirement that the outside directors not be "interested persons." See 15 U.S.C. §§ 80a-10(a), 80a-2(a)(19).12 To these statutorily disinterested directors, the Act assigns a host of special responsibilities involving supervision of management and financial auditing. They have the duty to review and approve the contracts of the investment adviser and the principal underwriter, 15 U.S.C. § 80a-15(c); the responsibility to appoint other disinterested directors to fill vacancies resulting from the assignment of the advisory contracts, 15 U.S.C. § 80a-16(b); and are required to select the accountants who prepare the company's Securities and Exchange Commission financial filings, 15 U.S.C. § 80a-31(a).
16
Attention must be paid as well to what Congress did not do. Congress consciously chose to address the conflict-of-interest problem through the Act's independent-directors section, rather than through more drastic remedies such as complete disaffiliation of the companies from their advisors or compulsory internalization of the management function. See Report of the SEC on the Public Policy Implications of Investment Company Growth, H.R.Rep.No. 2337, 89th Cong., 2d Sess., 147-148 (1966). Congress also decided not to incorporate into the 1940 Act a provision, proposed by the SEC, that would have forced investment companies to seek court approval before settling claims against "insiders" that could be the target of derivative suits. See S. 3580, 76th Cong., 3d Sess. § 33(a) (1940); Wolf v. Barkes, 348 F.2d 994, 997 n. 4 (CA2 1965). And when Congress did intend to prevent board action from cutting off derivative suits, it said so expressly. Section 36(b), 84 Stat. 1428, 15 U.S.C. § 80a-35(b)(2), added to the Act in 1970, performs precisely this function for derivative suits charging breach of fiduciary duty with respect to adviser's fees.13 No similar provision exists for derivative suits of the kind involved in this case.
17
Congress' purpose in structuring the Act as it did is clear. It "was designed to place the unaffiliated directors in the role of 'independent watchdogs,' " Tannenbaum v. Zeller, 552 F.2d, at 406, who would "furnish an independent check upon the management" of investment companies, Hearings on H.R. 10065 before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 76th Cong., 3d Sess., 109 (1940). This "watchdog" control was chosen in preference to the more direct controls on behavior exemplified by the options not adopted. Indeed, when by 1970 it appeared that the "affiliated person" provision of the 1940 Act might not be adequately restraining conflicts of interest, Congress turned not to direct controls, but rather to stiffening the requirement of independence as the way to "remedy the act's deficiencies." S.Rep.No. 91-184, pp. 32-33 (1969); U.S.Code Cong. & Admin.News 1970, p. 4927.14 Without question, "[t]he function of these provisions with respect to unaffiliated directors [was] to supply an independent check on management and to provide a means for the representation of shareholder interests in investment company affairs." Id., at 32; U.S.Code Cong. & Admin. News 1970, p. 4927.
18
In short, the structure and purpose of the ICA indicate that Congress entrusted to the independent directors of investment companies, exercising the authority granted to them by state law, the primary responsibility for looking after the interests of the funds' shareholders.15 There may well be situations in which the independent directors could reasonably believe that the best interests of the shareholders call for a decision not to sue—as, for example, where the costs of litigation to the corporation outweigh any potential recovery. See Note, 47 Ford.L.Rev. 568, 580 (1979); Note, 44 U.Chi.L.Rev., at 196. See, e. g., Tannenbaum v. Zeller, supra, at 418; Cramer v. General Tel. & Electronics Corp., 582 F.2d 259, 275 (CA3 1978). In such cases, it would certainly be consistent with the Act to allow the independent directors to terminate a suit, even though not frivolous. Indeed, it would have been paradoxical for Congress to have been willing to rely largely upon "watchdogs" to protect shareholder interests and yet, where the "watchdogs" have done precisely that, require that they be totally muzzled.16
IV
19
We hold today that federal courts should apply state law governing the authority of independent directors to discontinue derivative suits to the extent such law is consistent with the policies of the ICA and IAA. Moreover, we hold that Congress did not require that States, or federal courts, absolutely forbid director termination of all nonfrivolous actions. However, since "[w]e did not grant certiorari to decide [a question of state law]," Butner v. United States, 440 U.S. 48, 51, 99 S.Ct. 914, 916, 59 L.Ed.2d 136 (1979), and since neither the District Court nor the Court of Appeals decided the point,17 the case is reversed and remanded for further proceedings consistent with this opinion. Butner v. United States; Wallis v. Pan American Petroleum Corp., 384 U.S., at 72, 86 S.Ct., at 1306.
20
Reversed and remanded.
21
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
22
Mr. Justice BLACKMUN, concurring.
23
I join the Court's opinion and its judgment. In so doing, I read that opinion to hold that on remand the Court of Appeals is free to determine and, indeed, should determine what the state law in this area requires, and then whether that state law is consistent with the policies of the Investment Company and Investment Advisers Acts. This reading, of course, is at odds with the absolutist position taken by the opinion concurring in the judgment, but it seems to me that a situation could very well exist where state law conflicts with federal policy. The effectuation of that federal policy should not then be foreclosed, as the concurring opinion implies it would be.
24
Mr. Justice STEWART, with whom Mr. Justice POWELL joins, concurring in the judgment.
25
The Investment Company Act of 1940 and the Investment Advisers Act of 1940 are silent on the question whether the disinterested directors of an investment company may terminate a stockholders' derivative suit. The inquiry thus must turn to the relevant state law. I cannot agree with the implications in the Court's opinion, ante, at 480, 480-481, 486, that there is any danger that state law will conflict with federal policy.
26
The business decisions of a corporation are normally entrusted to its board of directors. A decision whether or not a corporation will sue an alleged wrongdoer is no different from any other corporate decision to be made in the collective discretion of the disinterested directors. E. g., Swanson v. Traer, 354 U.S. 114, 116, 77 S.Ct. 1116, 1117, 1 L.Ed.2d 1221; United Copper Securities Co. v. Amalgamated Copper Co., 244 U.S. 261, 263, 37 S.Ct. 509, 510, 61 L.Ed. 1119; McKee v. Rogers, 18 Del.Ch. 81, 156 A. 191 (1931); Rice v. Wheeling Dollar Savings & Trust Co., 130 N.E.2d 442 (Ohio Ct.Com.Pleas 1954); Goodwin v. Castleton, 19 Wash.2d 748, 144 P.2d 725 (1944).
27
On remand, the issue will be whether the state law here applicable recognizes this generally accepted principle and thereby empowers the directors to terminate this stockholder suit. Since Congress intended disinterested directors of mutual funds to be "independent watchdogs," ante, at 484, I can see no possible conflict between this generally accepted principle of state law and the federal statutes in issue.
1
§ 13(a)(3), 54 Stat. 811, as amended, 15 U.S.C. § 80a-13(a)(3), and former § 36, 54 Stat. 841, 15 U.S.C. § 80a-35 (1964 ed.).
2
§ 206, 54 Stat. 852, as amended, 15 U.S.C. § 80b-6.
3
The complaint alleged, inter alia, that "Anchor breached its statutory, contractual and common law fiduciary duties by relying exclusively upon the representations of Goldman, Sachs & Co. (a seller of commercial paper), rather than independently investigating the quality and safety of the Penn Central 270-day notes purchased by the Fund. It is further alleged that the defendant directors knew or should have known of Anchor's failure to meet its responsibility; that they violated their . . . duties . . . by as corporate fiduciaries acquiescing in Anchor's omissions; that the financial condition of the Penn Central steadily worsened during the period from November 28, 1969 to June 21, 1970, the date that it filed for reorganization; and that during this period of decline all of the defendants failed to investigate and review the financial condition of the Penn Central and the quality and safety of its commercial paper." 426 F.Supp. 844, 847 (SDNY1977).
4
The five were "disinterested" within the meaning of the ICA (see 567 F.2d 1208, 1209 (CA2 1978)) which provides:
"No registered investment company shall have a board of directors more than 60 per centum of the members of which are persons who are interested persons of such registered company." 15 U.S.C. § 80a-10(a). The definition of "interested person" is found at 15 U.S.C. § 80a-2(a)(19). See n. 12, infra.
Of the remaining six directors, five were defendants in the suit, and one was a director of the investment adviser. 404 F.Supp. 1172, 1175 (1975).
5
The question whether a cause of action exists is not a question of jurisdiction, and therefore may be assumed without being decided. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 279, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977); Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). Other Courts of Appeals have agreed with the Second Circuit that the ICA and IAA create private causes of action. As to the ICA, see Moses v. Burgin, 445 F.2d 369, 373 (CA1 1971); Esplin v. Hirschi, 402 F.2d 94, 103 (CA10 1968). See also Herpich v. Wallace, 430 F.2d 792, 815 (CA5 1970); Taussig v. Wellington Fund, Inc., 313 F.2d 472, 476 (CA3 1963). Compare Greater Iowa Corp. v. McLendon, 378 F.2d 783, 793 (CA8 1967), with Brouk v. Managed Funds, Inc., 286 F.2d 901 (CA8 1961), vacated as moot, 369 U.S. 424, 82 S.Ct. 878, 8 L.Ed.2d 6 (1962). As to the IAA, see Lewis v. Transamerica Corp., 575 F.2d 237 (CA9), cert. granted sub nom. Transamerica Mortgage Advisors, Inc. v. Lewis, 439 U.S. 952, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978); Wilson v. First Houston Investment Corp., 566 F.2d 1235 (CA5 1978).
6
This is not a situation where federal policy requires uniformity and, therefore, where the very application of varying state laws would itself be inconsistent with federal interests. In enacting the ICA and IAA, Congress did declare that "the activities of such companies, extending over many States, . . . make difficult, if not impossible, effective State regulation of such companies . . . ." 15 U.S.C. § 80a-1(a)(5). But as long as private causes of action are available in federal courts for violation of the federal statutes, this enforcement problem is obviated. The real concern, therefore, is not that state laws be uniform, but rather that the laws applied in suits brought to enforce federal rights meet the standards necessary to insure that the "prohibition of [the] federal statute . . . not be set at naught," Sola Electric Co. v. Jefferson Co., 317 U.S. 173, 176, 63 S.Ct. 172, 173, 87 L.Ed. 165 (1942). The "consistency" requirement described in text guarantees that state laws failing to meet these standards will be precluded.
7
See 567 F.2d 1208 (CA2 1978); 404 F.Supp. 1172 (SDNY 1975).
8
The Court of Appeals did not undertake any separate analysis of the policy behind the ICA's companion statute, the IAA.
9
See also Tannenbaum v. Zeller, 552 F.2d 402, 405 (CA2 1977); Radmer, Duties of the Directors of Investment Companies, 3 J.Corp.L. 61, 63 (1977); Note, 47 Ford.L.Rev. 568 (1979).
10
See, e. g., § 36 of the ICA, 54 Stat. 841, as amended, 15 U.S.C. § 80a-35, and § 206 of the IAA, 54 Stat. 852, as amended, 15 U.S.C. § 80b-6, imposing minimum standards on the behavior of investment company directors and advisers which presumably apply as much to their decisions regarding litigation as to the other decisions they may be called upon to make. See Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 471 n. 11, 97 S.Ct. 1292, 1300 n. 11, 51 L.Ed.2d 480 (1977) ("Congress intended the Investment Advisers Act to establish federal fiduciary standards for investment advisers"); SEC v. Capital Gains Research Bureau, 375 U.S. 180, 191-192, 84 S.Ct. 275, 282-283, 11 L.Ed.2d 237 (1963); Cramer v. General Tel. & Electronics Corp., 582 F.2d 259, 275 (CA3 1978); Tannenbaum v. Zeller, supra, 552 F.2d, at 418-419.
11
Under certain circumstances, independent directors must constitute a majority rather than 40% of the board. See 15 U.S.C. § 80a-10(b).
12
Title 15 U.S.C. § 80a-2(a)(19) defines an " 'interested person' of another person . . . when used with respect to an investment company," as
"(i) any affiliated person of such company,
"(ii) any member of the immediate family of any natural person who is an affiliated person of such company,
"(iii) any interested person of any investment adviser of or principal underwriter for such company,
"(iv) any person or partner or employee of any person who at any time since the beginning of the last two fiscal years of such company has acted as legal counsel for such company,
"(v) any broker or dealer registered under the Securities Exchange Act of 1934 or any affiliated person of such a broker or dealer, and
"(vi) any natural person whom the Commission by order shall have determined to be an interested person by reason of having had, at any time since the beginning of the last two fiscal years of such company, a material business or professional relationship with such company or with the principal executive officer of such company or with any other investment company having the same investment adviser or principal underwriter or with the principal executive officer of such other investment company."
Title 15 U.S.C. § 80a-2(a)(2) states that " '[a]ffiliated company' means a company which is an affiliated person," and 15 U.S.C. § 80a-2(a)(3) defines " 'affiliated person' of another person" as
"(A) any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (B) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; (C) any person directly or indirectly controlling, controlled by, or under common control with, such other person; (D) any officer, director, partner, copartner, or employee of such other person; (E) if such other person is an investment company, any investment adviser thereof or any member of an advisory board thereof; and (F) if such other person is an unincorporated investment company not having a board of directors, the depositor thereof."
13
See also § 16(b) of the Securities Exchange Act of 1934, 154 U.S.C. § 78p(b), which authorizes shareholder suits to recover insider "short swing" profits on behalf of the company notwithstanding the decision of the board of directors not to sue.
14
See n. 12, supra.
15
As an adjunct to its main argument which rested upon the structure of the ICA, the Court of Appeals was also of the view that mutual fund directors can never be truly disinterested in suits involving their codirectors. 567 F.2d, at 1212. While lack of impartiality may or may not be true as a matter of fact in individual cases, it is not a conclusion of law required by the ICA. Congress surely would not have entrusted such critical functions as approval of advisory contracts and selection of accountants to the statutorily disinterested directors had it shared the Court of Appeals' view that such directors could never be "disinterested" where their codirectors or investment advisers were concerned. In fact, although it was speaking only of the statutory definition, Congress declared in the second section of the Act that "no person shall be deemed to be an interested person of an investment company solely by reason of . . . his being a member of its board of directors or advisory board . . . ." 15 U.S.C. § 89a-2(a)(19). See also 15 U.S.C. § 80a-2(a)(9) ("A natural person shall be presumed not to be a controlled person within the meaning of this subchapter").
16
As an alternative ground in support of the judgment below, respondents urge that Fed.Rule Civ.Proc. 23.1 prohibits termination of this derivative action. That Rule states that a derivative action "shall not be dismissed or compromised without the approval of the court . . . ." However, as Judge Friendly noted with respect to former Rule 23(c), those words apply only to voluntary settlements between derivative plaintiffs and defendants, and were intended to prevent plaintiffs from selling out their fellow shareholders. They do not apply where the plaintiffs' action is involuntarily dismissed by a court, as occurred in this case. Wolf v. Barkes, 348 F.2d 994, 996-997 (CA2 1965). The same is true of the identically worded Rule 23.1. See C. Wright & A. Miller, Federal Practice and Procedure § 1839, pp. 427, 435, 436 (1972); 3B J. Moore, Federal Practice ¶ 23.1.24[2], App. p. 23.1-131 (1978).
17
In this Court, the parties hotly dispute the content of the correct state rule. Compare Brief for Petitioners 36-38 with Brief for Respondents 35-39.
| 78
|
441 U.S. 600
99 S.Ct. 1905
60 L.Ed.2d 508
Jerome D. CHAPMAN, Commissioner of Texas Department of Human Resources, et al., Petitioners,v.HOUSTON WELFARE RIGHTS ORGANIZATION et al.* Julia GONZALEZ, Etc., Petitioner, v. James F. YOUNG, Director, Hudson County Welfare Board, et al.
Nos. 77-719, 77-5324.
Argued Oct. 2, 1978.
Decided May 14, 1979.
Syllabus
Under 28 U.S.C. § 1343(3), federal district courts have jurisdiction over civil actions 'authorized by law' claiming a deprivation, under color of state law, of rights 'secured by the Constitution of the United States or by any Act of Congress providing for equal rights,' and under § 1343(4) have jurisdiction over such actions seeking relief under 'any Act of Congress providing for the protection of civil rights, including the right to vote.' Petitioner in No. 77-5324 brought suit in Federal District Court claiming that New Jersey officials, by denying her emergency assistance funds because she was not 'in a state of homelessness' as required by the relevent state regulations, had deprived her of a right to such assistance 'necessary to avoid destitution' within the meaning of § 406(e)(1) of the federal Social Security Act. The District Court held, inter alia, that the complaint stated a cause of action under 42 U.S.C. § 1983 (which provides that every person who, under color of any state statute or regulation subjects another to the deprivation of any rights 'secured by the Constitution and laws' shall be liable to the party injured in an action at law or suit in equity) and that it had jurisdiction under §§ 1343(3) and (4). The Court of Appeals held that the District Court should have dismissed the complaint for want of jurisdiction; that a constitutional claim must involve more a contention that the Supremacy Clause requires that a federal statute be given effect over conflicting state law; that the Social Security Act is not an Act of Congress securing either 'equal rights' or 'civil rights' as those terms are used in § 1343; and that those terms limit the grant of federal jurisdiction under § 1343 even if § 1983 creates a remedy for a broader category of statutory claims. Respondents in No. 77-719 brought a class action in Federal District Court claiming that Texas regulations requiring that Aid to Families with Dependent Children benefits be reduced if the recipient shares a household with a nondependent person violate § 402(a)(7) of the Social Security Act and implementing regulations. The District Court's judgment upholding the Texas regulations was reversed by the Court of Appeals, but the appellate court held that the District Court had jurisdiction under § 1343(4) since § 1983 is an Act of Congress providing for the protection of civil rights within the meaning of the jurisdictional grant. Held: Federal district courts' jurisdiction under §§ 1343(3) and (4) does not encompass claims, such as those involved here, that a state welfare regulation is invalid because it conflicts with the Social Security Act, and hence the District Court in neither case had jurisdiction. Pp. 607-623.
(a) To give meaning to § 1343, it must be concluded that an allegation of incompatibility between federal and state statutes and regulations does not, in itself, give rise to claim 'secured by the Constitution' within the meaning of § 1343(3). The entire reference in § 1343(3) to rights secured by an Act of Congress would be unnecessary if the earlier reference to constitutional claims embraced those resting solely on the Supremacy Clause, and, more importantly, the additional language describing a limited category of Acts of Congress—those 'providing for equal rights' plainly negates the notion that jurisdiction over all statutory claims had already been conferred by the preceding reference to constitutional claims. Pp. 612-615.
(b) Section 1983 is not a statute that secures 'equal rights' or 'civil rights' within the meaning of § 1343. One cannot go into court and claim 'a violation of § 1983,' for § 1983 by itself does not protect anyone against anything, but simply provides a remedy. While § 1983, when properly invoked, satisfies the first requirement of § 1343(3) that the civil action be 'authorized by law,' it cannot satisfy the second requirement that the action be one to redress the deprivation of rights 'secured by the Constitution of the United States or by an Act of Congress providing for equal rights.' Since § 1983 does not provide any substantive rights at all, it is not a statute 'providing for the protection of civil rights, including the right to vote' within the meaning of § 1343(4), and, moreover, to construe § 1343(4) as encompassing all federal statutory suits would be plainly inconsistent with the congressional intent in passing that statute ensure federal-court jurisdiction over authorized suits by the Attorney General against conspiracies to deprive individuals of certain enumerated rights. Pp. 615-620.
(c) Section 1343 does not confer federal jurisdiction over claims based on the Social Security Act, since that Act is not a statute securing 'equal rights' within § 1343(3) or 'civil rights' within § 1343(4). While the provisions of the Act at issue here, to the extent that they prescribe a minimum level of subsistence for all individuals, might be regarded as securing either 'equal rights' or 'civil rights,' these terms have a more restrictive meaning as used in § 1343. Pp. 620-623.
No. 77-5324, 560 F.2d 160, affirmed; No. 77-719, 555 F.2d 1219, reversed and remanded.
1
David H. Young, Asst. Atty. Gen. of Tex., Austin, Tex., argued, for petitioners in No. 77-719; with him on the brief were John L. Hill, Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., and Steve Bickerstaff, Asst. Atty. Gen., Austin, Tex.
2
Theodore A. Gardner, Jersey City, N. J., argued and filed briefs for petitioner in No. 77-5324.
3
Jeffrey J. Skarda, Houston, Tex., argued, for respondents in No. 77-719; with him on the briefs were Henry A. Freedman, New York City, Michael B. Trister, and John C. Williamson, Washington, D. C.
4
Stephen Skillman, Asst. Atty. Gen. of N. J., Trenton, N. J., argued, for respondents in No. 77-5324; with him on the brief were John J. Degnan, Atty. Gen., and Richard M. Hluchan, Deputy Atty. Gen., Trenton, N. J.
5
Mr. Justice STEVENS delivered the opinion of the Court.
6
The United States District Courts have jurisdiction over civil actions claiming a deprivation of rights secured by the Constitution of the United States or by Acts of Congress providing for equal rights or for the protection of civil rights, including the right to vote.1 The question presented by these cases is whether that jurisdiction encompasses a claim that a state welfare regulation is invalid because it conflicts with the Social Security Act. We conclude that it does not.
7
In the Social Security Amendments of 1967, Congress authorized partial federal funding of approved state programs providing emergency assistance for certain needy persons.2 In February 1976, Julia Gonzalez, the petitioner in No. 77-5324, requested the Hudson County, N. J., Welfare Board to pay her $163 in emergency assistance funds to cover her rent and utility bills.3 The Board denied her request because petitioner and her children were not 'in a state of homelessness' as required by the relevant New Jersey regulations.4
8
Petitioner brought suit in the United States District Court for the District of New Jersey alleging that the emergency payment was 'necessary to avoid destitution' within the meaning of § 406(e)(1) of the federal Social Security Act,5 and she was therefore entitled to the payment notwithstanding the more stringent New Jersey regulation. In her federal complaint she sought damages of $163 and an injunction commanding the New Jersey Welfare Director to conform his administration of the State's emergency assistance program to federal statutory standards. In essence, petitioner claimed that the New Jersey officials had deprived her of a right to emergency assistance protected by § 406(e)(1) of the Social Security Act.
9
The District Court held that the complaint stated a claim under 42 U.S.C. § 1983.6 Without deciding whether the 'secured by the constitution' language in § 1343(3) should be construed to include Supremacy Clause claims,7 the District Court concluded that it had jurisdiction under both subparagraphs (3) and (4) of § 1343. But in doing so, the court did not explain whether it was § 1983 or § 406(e)(1) of the Social Security Act that it viewed as the Act of Congress securing 'equal rights' or 'civil rights.' On the merits, the District Court found no conflict between the state regulation and the federal statute and entered summary judgment for respondents.
10
The Court of Appeals for the Third Circuit did not address the merits because it concluded that the District Court should have dismissed the complaint for want of jurisdiction.8 In reaching this conclusion, the Court of Appeals first noted that § 1983 'is not a jurisdictional statute; it only fashions a remedy.' 560 F.2d 160, 164 (1977). Nor could jurisdiction be founded on 28 U.S.C. § 1331,9 the general federal-question jurisdictional statute, since the amount in controversy did not exceed $10,000. The court recognized that when a constitutional claim is of sufficient substance to support federal jurisdiction, a district court has power to consider other claims which might not provide an independent basis for federal jurisdiction.10 But it concluded that the constitutional claim must involve more than a contention that the Supremacy Clause requires that a federal statute be given effect over conflicting state law. It then went on to hold that the Social Security Act is not an Act of Congress securing either 'equal rights' or 'civil rights' as those terms are used in § 1343. And those terms, the court concluded, limit the grant of federal jurisdiction conferred by § 1343 even if § 1983 creates a remedy for a broader category of statutory claims.
11
The petitioners in No. 77-719 are Commissioners of the Texas Department of Human Resources, which administers the State's program of Aid to Families with Dependent Children (AFDC). Respondents represent a class of AFDC recipients who share living quarters with a nondependent relative. Under the Texas regulations, the presence in the household of a nondependent person results in a reduction in the level of payments to the beneficiaries even if their level of actual need is unchanged. In a suit brought in the United States District Court for the Southern District of Texas, respondents claimed that the Texas regulations violate § 402(a)(7) of the Social Security Act, 42 U.S.C. § 602(a)(7), and the federal regulations promulgated pursuant thereto.11
12
The District Court upheld the Texas regulations.12 While respondents' appeal was pending, this Court decided Van Lare v. Hurley, 421 U.S. 338, 95 S.Ct. 1741, 44 L.Ed.2d 208. On the authority of that case, the Court of Appeals for the Fifth Circuit reversed.13 Following earlier Fifth Circuit cases, the Court of Appeals concluded that federal jurisdiction was conferred by the language in 28 U.S.C. § 1343(4) describing actions seeking relief 'under any Act of Congress providing for the protection of civil rights . . ..' The court reasoned that statutory rights concerning food and shelter are "rights of an essentially personal nature," Houston Welfare Rights Org. v. Vowell, 555 F.2d 1219, 1221 n. 1 (1977); that 42 U.S.C. § 1983 provides a remedy which may be invoked to protect such rights; and that § 1983 is an Act of Congress providing for the protection of civil rights within the meaning of that jurisdictional grant.14
13
We granted certiorari to resolve the conflict between that conclusion and the holding of the Third Circuit in No. 77-5324. 434 U.S. 1061, 98 S.Ct. 1232, 55 L.Ed.2d 761. We have previously reserved the jurisdictional question we decide today, see Hagans v. Lavine, 415 U.S. 528, 533-534, n. 5, 94 S.Ct. 1372, 1377-1378 n. 5, 39 L.Ed.2d 577. We preface our decision with a review of the history of the governing statutes.
14
* Our decision turns on the construction of the two jurisdictional provisions, 28 U.S.C. §§ 1343(3) and (4), and their interrelationship with 42 U.S.C. § 1983 and the Social Security Act. As in all cases of statutory construction, our task is to interpret the words of these statutes in light of the purposes Congress sought to serve.
15
Section 1 of the Civil Rights Act of 1871 is the source of both the jurisdictional grant now codified in 28 U.S.C. § 1343(3) and the remedy now authorized by 42 U.S.C. § 1983.15 Section 1 authorized individual suits in federal court to vindicate the deprivation, under color of state law, 'of any rights, privileges, or immunities secured by the Constitution of the United States.' No authorization was given for suits based on any federal statute.
16
In 1874, Congress enacted the Revised Statutes of the United States. At that time, the remedial and jurisdictional provisions of § 1 were modified and placed in separate sections. The words 'and laws,' as now found in § 1983, were included in the remedial provision of Rev.Stat. § 1979,16 and two quite different formulations of the jurisdictional grant were included in Rev.Stat. §§ 563 and 629. The former granted the district courts jurisdiction of all actions to redress a deprivation under color of state law of any right secured by the Constitution or 'by any law of the United States.'17 The latter defined the jurisdiction of the circuit courts and included the limiting phrase—'by any law providing for equal rights'—which is now found in § 1343(3).18
17
In the Judicial Code of 1911, Congress abolished circuit courts and transferred their authority to the district courts.19 The Code's definition of the jurisdiction of the district courts to redress the deprivation of civil rights omitted the broad language referring to 'any law of the United States,' which had defined district court jurisdiction under § 563, and provided instead for jurisdiction over claims arising under federal laws 'providing for equal rights'—the language which had been used to describe circuit court of jurisdiction under § 629, and which is now a part of § 1343(3).20 No significant change in either the remedial or jurisdictional language has been made since 1911.21
18
Subsection 4 of § 1343, providing jurisdiction for claims 'under any Act of Congress providing for the protection of civil rights, including the right to vote,' is of more recent origin. Part III of the Civil Rights Act of 1957, as proposed, authorized the Attorney General to institute suits for injunctive relief against conspiracies to deprive citizens of the civil rights specified in 42 U.S.C. § 1985, which includes voting rights.22 Part III conferred jurisdiction on the United States district courts to entertain proceedings instituted pursuant to this section of the Act.23 While the substantive authorization of suits by the Attorney General was defeated, the amendment of § 1343, which had been termed a technical amendment to comply with the authority conferred by Part III,24 was enacted into law.
19
With the exception of this most recent enactment, the legislative history of the provisions at issue in these cases ultimately provides us with little guidance as to the proper resolution of the question presented here. Section 1 of the 1871 Act was the least controversial provision of that Act;25 and what little debate did take place as to § 1 centered largely on the question of what protections the Constitution in fact afforded.26 The relevant changes in the Revised Statutes were adopted virtually without comment, as was the definition of civil rights jurisdiction in the 1911 Code. The latter provision was described as simply merging the existing jurisdiction of the district and circuit courts,27 a statement which may be read either as reflecting a view that the broader 'and laws' language was intended to be preserved in the more limited 'equal rights' language or as suggesting that 'and laws' was itself originally enacted with reference to laws providing for equal rights, and was never thought to be any broader.
20
Similar ambiguity is found in discussions of the basis policy of the legislation. While there is weight to the claim that Congress, from 1874 onward, intended to create a broad right of action in federal court for deprivations by a State of any federally secured right, it is also clear that the prime focus of Congress in all of the relevant legislation was ensuring a right of action to enforce the protections of the Fourteenth Amendment and the federal laws enacted pursuant thereto.
21
We cannot say that any of these arguments is ultimately right or wrong, or that one policy is more persuasive than others in reflecting the intent of Congress. It may well be that, at least as to § 1343(3), the Congress that enacted the 1871 Act and its subsequent amendments never considered the question of federal jurisdiction of claims arising under the broad scope of federal substantive authority that emerged many years later. This does not mean that jurisdiction cannot be found to encompass claims nonexistent in 1871 or 1874, but it cautions us to be hesitant in finding jurisdiction for new claims which do not clearly fit within the terms of the statute.28
II
22
The statutory language suggests three different approaches to the jurisdictional issue. The first involves a consideration of the words 'secured by the Constitution of the United States' as used in § 1343. The second focuses on the remedy authorized by § 1983 and raises the question whether that section is a statute that secures 'equal rights' or 'civil rights' within the meaning of § 1343. The third approach makes the jurisdictional issue turn on whether the Social Security Act is a statute that secures 'equal rights' or 'civil rights.' We consider these approaches in turn.
1. The Supremacy Clause
23
Under § 1343(3), Congress has created federal jurisdiction of any civil action authorized by law to redress the deprivation under color of state law 'of any right, privilege or immunity secured [1] by the Constitution of the United States or [2] by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.' Claimants correctly point out that the first prepositional phrase can be fairly read to describe rights secured by the Supremacy Clause. For even though that Clause is not a source of any federal rights, it does 'secure' federal rights by according them priority whenever they come in conflict with state law.29 In that sense all federal rights, whether created by treaty, by statute, or by regulation, are 'secured' by the Supremacy Clause.
24
In Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194, the Court was confronted with an analogous choice between two interpretations of the statute defining the jurisdiction of three-judge district courts.30 The comprehensive language of that statute, 28 U.S.C. § 2281 (1970 ed.),31 could have been broadly read to encompass statutory claims secured by the Supremacy Clause or narrowly read to exclude claims that involve no federal constitutional provision except that Clause. After acknowledging that the broader reading was consistent not only with the statutory language but also with the policy of the statute, the Court accepted the more restrictive reading. Its reasoning is persuasive and applicable to the problems confronting us in this case.
25
'This restrictive view of the application of § 2281 is more consistent with a discriminating reading of the statute itself than is the first and more embracing interpretation. The statute requires a three-judge court in order to restrain the enforcement of a state statute 'upon the ground of the unconstitutionality of such statute.' Since all federal actions to enjoin a state enactment rest ultimately on the Supremacy Clause, the words 'upon the ground of the unconstitutionality of such statute' would appear to be superfluous unless they are read to exclude some types of such injunctive suits. For a simple provision prohibiting the restraint of the enforcement of any state statute except by a three-judge court would manifestly have sufficed to embrace every such suit whatever its particular constitutional ground. It is thus quite permissible to read the phrase in question as one of limitation, signifying a congressional purpose to confine the three-judge court requirement to injunction suits depending directly upon a substantive provision of the Constitution, leaving cases of conflict with a federal statute (or treaty) to follow their normal course in a single-judge court.' Swift & Co. v. Wickham, supra, at 126-127, 86 S.Ct., at 266-267 (footnotes omitted).
26
Just as the phrase in § 2281—'upon the ground of the unconstitutionality of such statute'—would have been superfluous unless read as a limitation on three-judge-court jurisdiction, so is it equally clear that the entire reference in § 1343(3) to rights secured by an Act of Congress would be unnecessary if the earlier reference to constitutional claims embraced those resting solely on the Supremacy Clause. More importantly, the additional language which describes a limited category of Acts of Congress those 'providing for equal rights of citizens'—plainly negates the notion that jurisdiction over all statutory claims had already been conferred by the preceding reference to constitutional claims.
27
Thus, while we recognize that there is force to claimants' argument that the remedial purpose of the civil rights legislation supports an expansive interpretation of the phrase 'secured by the Constitution,' it would make little sense for Congress to have drafted the statute as it did if it had intended to confer jurisdiction over every conceivable federal claim against a state agent. In order to give meaning to the entire statute as written by Congress, we must conclude that an allegation of incompatibility between federal and state statutes and regulations does not, in itself, give rise to a claim 'secured by the Constitution' within the meaning of § 1343(3).
2. Section 1983
28
Claimants next argue that the 'equal rights' language of § 1343(3) should not be read literally or, if it is, that § 1983, the source of their asserted cause of action, should be considered an Act of Congress 'providing for equal rights' within the meaning of § 1343(3) or 'providing for the protection of civil rights' within § 1343(4). In support of this position, they point to the common origin of §§ 1983 and 1343(3) in the Civil Rights Act of 1871 and this Court's recognition that the latter is the jurisdictional counterpart of the former.32 Since broad language describing statutory claims was used in both provisions during the period between 1874 and 1911 and has been retained in § 1983, and since Congress in the Judicial Code of 1911 purported to be making no changes in the existing law as to jurisdiction in this area, the 'equal rights' language of § 1343(3) must be construed to encompass all statutory claims arising under the broader language of § 1983. Moreover, in view of its origin in the Civil Rights Act of 1871 and its function in modern litigation, § 1983 does 'provid[e] for the protection of civil rights' within the meaning of § 1343(4).
29
In practical effect, this argument leads to the same result as claimants' Supremacy Clause argument: jurisdiction over all challenges to state action based on any federal ground. Although the legislative history does not forbid this result, the words and structure of the statute, as well as portions of the legislative history, support a more limited construction.
30
The common origin of §§ 1983 and 1343(3) unquestionably implies that their coverage is, or at least originally was, coextensive. It is not, however, necessary in this case to decide whether the two provisions have the same scope. For even if they do, there would still be the question whether the 'and laws' language in § 1983 should be narrowly read to conform with the 'equal rights' language in § 1343(3), or, conversely, the latter phrase should be broadly read to parallel the former. And, in all events, whether or not we assume that there is a difference between 'any law of the United States' on the one hand and 'any Act of Congress providing for equal rights' on the other, the fact is that the more limited language was used when Congress last amended the jurisdictional provision. In order to construe the broad language of § 1983 to cover any statutory claim, and at the same time to construe the language of § 1343(3) as coextensive with such a cause of action, it would be necessary to ignore entirely Congress' most recent limiting amendment and the words of the provision as currently in force.
31
We cannot accept claimants' argument that we should reach this result by holding that § 1983 is an Act of Congress 'providing for equal rights' within the meaning of § 1343(3). Unlike the 1866 and 1870 Acts,33 § 1 of the Civil Rights Act of 1871 did not provide for any substantive rights—equal or otherwise. As introduced and enacted, it served only to ensure that an individual had a cause of action for violations of the Constitution, which in the Fourteenth Amendment embodied and extended to all individuals as against state action the substantive protections afforded by § 1 of the 1866 Act.34 No matter how broad the § 1 cause of action may be, the breadth of its coverage does not alter its procedural character. Even if claimants are correct in asserting that § 1983 provides a cause of action for all federal statutory claims, it remains true that one cannot go into court and claim a 'violation of § 1983'—for § 1983 by itself does not protect anyone against anything. As Senator Edmunds recognized in the 1871 debate: 'All civil suits, as every lawyer understands, which this act authorizes, are not based upon it; they are based upon the right of the citizen. the act only gives a remedy.'35
32
Under § 1343(3), a civil action must be both 'authorized by law' and brought to redress the deprivation of rights 'secured by the Constitution of the United States or by any Act of Congress providing for equal rights.' Section 1983, when properly invoked, satisfies the first requirement: it ensures that the suit will not be dismissed because not 'authorized by law.' But It cannot satisfy the second, since by its terms, as well as its history, it does not provide any rights at all.
33
We reach a similar conclusion with respect to the argument that § 1983 is a statute 'providing for the protection of civil rights, including the right to vote.' Standing alone, § 1983 clearly provides no protection for civil rights since, as we have just concluded, § 1983 does not provide any substantive rights at all. To be sure, it may be argued that § 1983 does in some sense 'provid[e] for the protection of civil rights' when it authorizes a cause of action based on the deprivation of civil rights guaranteed by other Acts of Congress. But in such cases, there is no question as to jurisdiction, and no need to invoke § 1983 to meet the 'civil rights' requirement of § 1343(4); the Act of Congress which is the actual substantive basis of the suit clearly suffices to meet the requisite test.36 It is only when the underlying statute is not a civil rights Act that § 1983 need be invoked by those in claimants' position to support jurisdiction. And in such cases, by hypothesis, § 1983 does not 'provid[e] for the protection of civil rights.'
34
To construe § 1343(4), moreover, as encompassing all federal statutory suits, as claimants here propose, would seem plainly inconsistent with the congressional intent in passing that statute. As noted earlier, the provision's primary purpose was to ensure federal-court jurisdiction over suits which the bill authorized the Attorney General to bring against conspiracies to deprive individuals of the civil rights enumerated in 42 U.S.C. § 1985.37 The statute, of course, is broader than that: It encompasses suits brought by private individuals as well, and thus retained some significance even after the provisions authorizing suit by the Attorney General were defeated. But to the extent that § 1343(4) was thought to expand existing federal jurisdiction, it was only because it does not require that the claimed deprivation be 'under color of any State law.'38 One would expect that if Congress sought not only to eliminate any state-action requirement but also to allow jurisdiction without respect to the amount in controversy for claims which in fact have nothing to do with 'civil rights,' there would be some indication of such an intent. But there is none, either in the legislative history or in the words of the statute itself.
35
It follows from what we have said thus far that § 1343 does not confer federal jurisdiction over the claims based on the Social Security Act unless that Act may fairly be characterized as a statute securing 'equal rights' within § 1343(3) or 'civil rights' within § 1343(4). The Social Security Act provisions at issue here authorize federal assistance to participating States in the provision of a wide range of monetary benefits to needy individuals, including emergency assistance and payments necessary to provide food and shelter. Arguably, a statute that is intended to provide at least a minimum level of subsistence for all individuals could be regarded as securing either 'equal rights' or 'civil rights.'39 We are persuaded, however, that both of these terms have a more restrictive meaning as used in the jurisdictional statute.
36
The Social Security Act does not deal with the concept of 'equality' or with the guarantee of 'civil rights,' as those terms are commonly understood. The Congress that enacted § 1343(3) was primarily concerned with providing jurisdiction for cases dealing with racial equality; the Congress that enacted § 1343(4) was primarily concerned with providing jurisdiction for actions dealing with the civil rights enumerated in 42 U.S.C. § 1985, and most notably the right to vote. While the words of these statutes are not limited to the precise claims which motivated their passage,40 it is inappropriate to read the jurisdictional provisions to encompass new claims which fall well outside the common understanding of their terms.
37
Our conclusion that the Social Security Act does not fall within the terms of either § 1343(3) or (4) is supported by this Court's construction of similar phrases in the removal statute, 28 U.S.C. § 1443. The removal statute makes reference to 'any law providing for the equal civil rights of citizens' and 'any law providing for equal rights.' In construing these phrases in Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, this Court concluded:
38
'The present language 'any law providing for . . . equal civil rights' first appeared in § 641 of the Revised Statutes of 1874. When the Revised Statutes were compiled, the substantive and removal provisions of the Civil Rights Act of 1866 were carried forward in separate sections. Hence, Congress could no longer identify the rights for which removal was available by using the language of the original Civil Rights Act—'right secured to them by the first section of this act.' The new language it chose, however, does not suggest that it intended to limit the scope of removal to rights recognized in statutes existing in 1874. On the contrary, Congress' choice of the open-ended phrase 'any law providing for . . . equal civil rights' was clearly appropriate to permit removal in cases involving 'a right under' both existing and future statutes that provided for equal civil rights.
39
'There is no substantial indication, however, that the general language of § 641 of the Revised Statutes was intended to expand the kinds of 'law' to which the removal section referred. In spite of the potential breadth of the phrase 'any law providing for . . . equal civil rights,' it seems clear that in enacting § 641, Congress intended in that phrase only to include laws comparable in nature to the Civil Rights Act of 1866 . . .
40
* * * * *
41
'. . . As the Court of Appeals for the Second Circuit has concluded, § 1443 'applies only to rights that are granted in terms of equality and not to the whole gamut of constitutional rights . . ..' 'When the removal statute speaks of 'any law providing for equal rights,' it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and 42 U.S.C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way of life, of bestowing them upon all.' New York v. Galamison, 342 F.2d 255, 269, 271. See also Gibson v. Mississippi, 162 U.S. 565, 585-586, 16 S.Ct. 904, 905, 906, 40 L.Ed. 1075]; Kentucky v. Powers, 201 U.S. 1, 39-40, 26 S.Ct. 387, 399, 400, 50 L.Ed. 633]; City of Greenwood v. Peacock, post, [384 U.S. 808,] 825, 86 S.Ct. 1811, 16 L.Ed.2d 955.' Id., at 789-790, 792, 86 S.Ct., at 1788-1789, 1790 (footnotes omitted).
42
In accord with Georgia v. Rachel,41 the Courts of Appeals have consistently held that the Social Security Act is not a statute providing for 'equal rights.' See Andrews v. Maher, 525 F.2d 113 (CA2 1975); Aguayo v. Richardson, 473 F.2d 1090, 1101 (CA2 1973), cert. denied sub nom. Aguayo v. Weinberger, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974). We endorse those holdings, and find that a similar conclusion is warranted with respect to § 1343(4) as well. See McCall v. Shapiro, 416 F.2d 246, 249 (CA2 1969).
43
We therefore hold that the District Court did not have jurisdiction in either of these cases. Accordingly, the judgment in No. 77-5324 is affirmed and the judgment in No. 77-719 is reversed and the case is remanded for further proceedings consistent with this opinion.
44
It is so ordered.
45
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring.
46
I join the Court's opinion1 and agree that it is not necessary in these cases to decide the meaning of the phrase 'Constitution and laws' in 42 U.S.C. § 1983. See ante, at 616. Mr. Justice WHITE has taken a contrary view, however, and has concluded that because the statute now codified as § 1983 includes the words 'and laws,' it provides a private cause of action for the deprivation, under color of state law, of any federal statutory right. Anyone who ventures into the thicket of the legislative history of § 1983 quickly realizes that there is no clearly marked path to the correct interpretation of this statute. Yet, there is sufficient evidence to indicate convincingly that the phrase 'and laws' was intended as no more than a shorthand reference to the equal rights legislation enacted by Congress. Because I do not think Mr. Justice WHITE'S interpretation can survive careful examination of the legislative history of § 1983, I write separately.
47
* Section 1983 provides a private cause of action for the deprivation, under color of state law, of 'rights . . . secured by the Constitution and laws.'2 An examination of the genesis of this statute makes clear the hazard of viewing too expansively the statute's broad reference to 'laws.' Pursuant to legislative direction, see Act of June 27, 1866, 14 Stat. 74, President Andrew Johnson appointed three distinguished jurists to constitute a commission to simplify, organize, and consolidate all federal statutes of a general and permanent nature. These revisers and their successors spent several years in producing the volume enacted by Congress as the Revised Statutes of 1874. See Dwan & Feidler, The Federal Statutes—Their History and Use, 22 Minn.L.Rev. 1008, 1012-1015 (1938). Section 1983 first appeared in its present form as § 1979 of the Revised Statutes,3 which in turn was derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13. It was in the 1874 revision that the words 'and laws' were added.
48
The history of the revision makes abundantly clear that Congress did not intend the revision to alter the content of federal statutory law. The Act of Congress authorizing the revision discloses no warrant to do so. 14 Stat. 74. In reporting to the House on the progress of their task, the revisers advised that, while some changes in the wording of federal statutes were necessary, '[e]very essential provision of the existing laws must be reproduced, with such additions only by the [revisers] as shall give to these provisions their intended effect.' Report of the Commissioners to Revise the Statutes of the United States, H.R.Misc.Doc. No. 31, 40th Cong., 3d Sess., 2 (1869). Before the work was approved by Congress, it was scrutinized, at the behest of a joint congressional committee, for nine months by Thomas Jefferson Durant, an attorney not involved in the initial drafting, for the express purpose of detecting changes and restoring the original meaning. See 2 Cong.Rec. 646 (1874) (remarks of Rep. Poland); id., at 129 (remarks of Rep. Butler); Dwan & Feidler, supra, at 1013-1014. Thereafter it was reviewed by both the House Committee on Revision of the Laws, see 2 Cong.Rec. 646 (1874) (remarks of Rep. Poland), and by the House itself in a series of special evening sessions, see infra, at 638-639, for the purpose of making 'such changes and amendments as [are] necessary to make [sure] that it will be an exact transcript, an exact reflex, of the existing statute law of the United States—that there shall be nothing omitted and nothing changed.' 2 Cong.Rec. 646 (1974) (remarks of Rep. Poland) (emphasis added). Members of Congress who urged enactment of the revision into positive law stated unequivocally that no substantive changes were intended. For example, Senator Conkling, Chairman of the Senate Committee on the Revision of the Laws, in reporting the revision to the Senate, said:
49
'[A]lthough phraseology of course has been changed, the aim throughout has been to preserve absolute identity of meaning, not to change the law in any particular, however minute, but to present . . . the law in all its parts as it was actually found to exist dispersed through seventeen volumes of statutes.' Id., at 4220.4
50
In spite of these efforts, it may have been inevitable in an undertaking of such magnitude that changes in the language of some statutes arguably would alter their meaning. When confronted with such changes, we should remember the "familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." Muniz v. Hoffman, 422 U.S. 454, 469, 95 S.Ct. 2178, 2186, 45 L.Ed.2d 319 (1975) (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892)). I do not foreclose the possibility that some statutory change attributable solely to the 1874 revision may be accepted at face value. See United States v. Sischo, 262 U.S. 165, 168-169, 43 S.Ct. 511, 512, 67 L.Ed. 925 (1923). But certainly the better wisdom is that 'an insertion [of language] in the Revised Statutes . . . is not lightly to be read as making a change . . ..' Ibid.
51
I therefore am unable to accept uncritically the view that merely because the phrase 'and laws' was inserted into the predecessor of § 1983 during the revision, that statute henceforth must be read as embracing all federal rights. The presence of this addition merely launches the inquiry into the legislative intent behind the present wording of § 1983.5
II
A.
52
The history of § 1983 begins with the Civil Rights Act of 1866, 14 Stat. 27. Section 1 of the Act guaranteed all citizens of the United States 'the same right . . . to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property . . . as is enjoyed by white citizens.' Section 2 made it a misdemeanor for any person, acting under color of state law, to deprive another of the rights enumerated in § 1. Jurisdiction over the criminal actions described in § 2, as well as over civil actions to enforce the rights granted in § 1, was provided by § 3, which stated in part:
53
'[T]he district courts of the United States . . . shall have . . . cognizance . . ., concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied . . . any of the rights secured to them by the first section of this act . . ..'
54
The first three sections of the 1866 Act were the models for parts of two subsequent civil rights statutes. First, §§ 16 and 17 of the 1870 Civil Rights Act, 16 Stat. 144, were copied, with some changes, directly from §§ 1 and 2 of the 1866 Act,6 and § 18 stated that §§ 16 and 17 were to 'be enforced according to the provisions of said act'—i. e., the jurisdictional provisions of § 3 of the 1866 law.7 Second, § 1 of the Civil Rights Act of 1871, 17 Stat. 13, known as the Ku Klux Klan Act, was modeled after § 2 of the 1866 law. Rather than providing for criminal liability, however, it granted a private civil cause of action; and in place of the enumerated rights of § 1 of the 1866 Act, it encompassed the deprivation, under color of state law, of 'any rights, privileges, or immunities secured by the Constitution of the United States.' Concurrent circuit and district court jurisdiction over these civil actions was to be governed by § 3 of the 1866 Act, which again was incorporated by reference. Section 1 of the 1871 Act is the direct ancestor of § 1983.
55
The statutes discussed above were among the civil rights and related jurisdictional provisions in force when the task of producing the Revised Statutes was commenced. Of immediate concern, of course, is § 1 of the 1871 Act, which became § 1979 of the Revised Statutes and, finally, 42 U.S.C. § 1983. As that statute came to the revisers, it extended only to deprivations, under color of state law, of rights 'secured by the Constitution.' As it left their hands, this phrase had been altered to read 'secured by the Constitution and laws.' The problem is to discover whether the revisers and the Congress that accepted their work intended, by the addition of the two words 'and laws,' greatly to expand the coverage of the statute to encompass every federal statutory right. See post, at 654.
B
56
A primary source of information about the meaning of the Revised Statutes is a two-volume draft published by the revisers in 1872. Revision of the United States Statutes as Drafted by the Commissioners Appointed for that Purpose (1872) (hereinafter Draft). This Draft provides insight into the thinking of its authors in two ways: It contains marginal notations indicating the sources from which each section of the proposed text was derived, and it includes explanatory notes following some of the proposed provisions, discussing problems encountered by the revisers and justifying the use of particular word choices.8
57
As it appears in the Draft (and in the final text), § 1979 creates a cause of action for the deprivation of 'rights . . . secured by the Constitution and laws.' The only indication in the Draft concerning the language of § 1979 is the marginal notation showing that it was derived from § 1 of the 1871 Civil Rights Act. Although the revisers gave no direct explanation for their insertion of the reference to 'laws,' their reasons for that change are revealed by a close examination of similar modification made in the jurisdictional counterparts to § 1979.
58
As part of their general scheme of organizing the federal statutes, the revisers consolidated all the jurisdictional provisions of the Statutes at Large in the 'Judiciary' title of the revision. As noted above, § 3 of the 1866 Act had been relied upon by Congress to provide concurrent jurisdiction in the district and circuit courts for the civil actions authorized by § 1979. As each of these courts was dealt with in separate chapters in the 'Judiciary' title, the jurisdictional authority of § 3 was written into two separate provisions. One was § 563(12), placed under the chapter dealing with the district courts; the counterpart in the chapter on circuit court jurisdiction was § 629(16).9 Both sections mirrored closely the language of § 1979, and the marginal notations for each indicated that both were derived from precisely the same source.10
59
In spite of this identity of origin and purpose, these two jurisdictional provisions contained a difference in wording. Section 563(12) provided district court jurisdiction over civil actions brought to redress the deprivation, under color of state law, of rights secured by the Constitution, or 'of any right secured by any law of the United States.' Section 629(16), by contrast, contained, in place of the latter phrase, the words 'of any right secured by any law providing for equal rights.' Fortunately, in including a reference to laws in § 629(16), the revisers provided what they omitted in their drafts of §§ 563(12) and 1979: a detailed and lengthy note explaining their reasons for going beyond the language of the prior civil rights statutes. 1 Draft 359. This note not only makes explicit the meaning of the words 'any law providing for equal rights,' it discloses the correct interpretation of the analogous language in §§ 563(12) and 1979 as well.
60
As part of a larger argument justifying some of the differences in language between § 629(16) in the revision and § 3 of the 1866 Act,11 the revisers' note makes an important statement concerning the relationship between the broad language of § 1 of the 1871 Act, from which § 1979 was taken, and the earlier statutes providing for specifically enumerated rights:
61
'It may have been the intention of Congress to provide, by [§ 1 of the 1871 Act], for all the cases of [the enumerated] deprivations mentioned in [§ 16 of] the previous act of 1870, and thus actually to supersede the indefinite provisions contained in that act.12 But as it might perhaps be held that only such rights as are specifically secured by the Constitution, and not every right secured by a law authorized by the Constitution, were here intended, it is deemed safer to add a reference to the civil-rights act.'13 1 Draft 362.
62
This passage reflects the revisers' understanding that Congress intended by its reference in § 1 of the 1871 Act to 'rights . . . secured by the Constitution' to make unlawful the deprivation under color of state law of any right enumerated in § 1 of the 1866 Act and § 16 of the 1870 Act. The revisers doubtless were aware that § 1 of the 1871 Act was intended by Congress as a legislative implementation of the first section of the Fourteenth Amendment, which in turn was intended to constitutionalize the enumerated rights of § 1 of the 1866 Act. See Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323, 1329-1334 (1952); tenBroek, Thirteenth Amendment to the Constitution of the United States—Consummation to Abolition and Key to the Fourteenth Amendment, 39 Calif.L.Rev. 171, 200-202 (1951); ante, at 617, and n. 34. They therefore believed that § 1 of the 1866 Act, to the extent it protected against deprivations under color of state law, was meant to be fully encompassed by the phrase 'rights . . . secured by the Constitution' in § 1 of the 1871 Act. But realizing that the courts likely would read this phrase restrictively, it was 'deemed safer' to add to 'rights . . . secured by the Constitution,' as it appeared in § 629(16), a second phrase—'or . . . secured by any law providing for equal rights'—as a shorthand reference to the civil rights legislation granting specified rights.14
63
Although § 563(12) refers generally to 'any law of the United States,' it is manifest that the revisers intended §§ 563(12) and 629(16) to be identical in scope. The two provisions were derived from precisely the same sources in the Statutes at Large, see n. 10, supra, and there is no indication whatsoever that in separating the two the revisers intended to give them different meanings. Indeed, in the explanatory note to § 629(16), the revisers made explicit their awareness that the problems confronting them with respect to circuit court jurisdiction applied equally to the district courts, since those two tribunals were to have identical, concurrent jurisdiction over all matters to which § 629(16) extended. After explaining why § 3 of the 1866 Act, if taken literally, would greatly broaden federal jurisdiction, see n. 11, supra, the revisers stated:
64
'[I]t can hardly be supposed that Congress designed, not only to open the doors of the circuit courts to these parties without reference to the ordinary conditions of citizenship and amount in dispute, but, in their behalf, to convert the district courts into courts of general common law and equity jurisdiction. It seems to be a reasonable construction, therefore, that instead of proposing an incidental but complete revolution in the character and functions of the district courts, as a measure of relief to parties who are elsewhere denied certain rights, Congress intended only to give a remedy in direct redress of that deprivation, and to allow that remedy to be sought in the courts of the United States.' 1 Draft 361 (emphasis added).
65
It appears that two jurisdictional provisions were created simply because the revisers elected to write separate chapters for the district and circuit courts.
66
In light of these considerations, the difference in the wording of §§ 563(12) and 629(16) must be ascribed to oversight, rather than to an intent to give the former provision greater scope than the latter.15 Having ascertained that §§ 563(12) and 629(16) have the same scope, one can conclude only that the more restrictive language of § 629(16) governs § 563(12) as well, as the former was given more care and deliberation, and its language more precisely reflects the express understanding of the revisers.16 It is understandable, therefore, that when the original jurisdiction of the circuit courts was eliminated in the Judicial Code of 1911, the more precisely drafted circuit court provision was chosen to replace the broader district court statute. It thus was § 629(16) that became 28 U.S.C. § 1343(3), a selection undoubtedly made by the drafters of the Judicial Code in recognition of the fact that this provision expresses more accurately the original intent of Congress than does § 563(12). See Note, 72 Colum.L.Rev., supra n. 15, at 1423, and n. 152.
67
The fact that the revisers understood the words 'any law' in § 563(12) to refer only to the equal rights laws enacted by Congress necessarily illuminates the meaning of the similar, contemporaneously drafted reference in § 1979. The legislative history shows unmistakably that the revisers drafted §§ 563(12) and 629(16) for the precise purpose of providing jurisdiction for actions brought under § 1979.17 Just as the difference in wording between the two jurisdictional provisions is, in light of the historical evidence, not a persuasive reason for concluding that they differ in meaning, the variation between §§ 629(16) and 1979 does not justify a construction that gives the latter a vastly broader scope than its jurisdictional counterpart. Indeed, only recently the Court decided in Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976), that despite an unexplained difference in the language of §§ 1979 and 629(16) that was introduced during the 1874 revision, these statutes must be construed as identical in scope.18 426 U.S., at 580-586, 96 S.Ct., at 2264. A similar approach to the language under scrutiny here is equally correct.
68
The explanatory note accompanying § 629(16) makes perfectly clear that the revisers attributed to Congress the understanding that the particularly described rights of §§ 1977 and 1978 were protected against deprivation under color of state law by the words 'rights . . . secured by the Constitution' in § 1979. Out of an abundance of caution, however, a phrase was added to these words wherever they appeared. In § 629(16), to which particular attention was devoted, the addition was 'or of any right secured by any law providing for equal rights.' In § 563(12) it was less precise: 'or of any right secured by any law.' In § 1979 the relevant language became 'secured by the Constitution and laws.' Despite the variations between these phrases, I am fully persuaded that each was intended to express the same meaning that is explicitly attributed by the revisers to the text of § 629(16).19 One might wish that the revisers had expressed themselves with greater precision, but when viewed in the context of the purpose and history of this legislation, it becomes evident that the insertion by the revisers of 'and laws' in § 1979 was intended to do no more than ensure that federal legislation providing specifically for equality of rights would be brought within the ambit of the civil action authorized by that statute.20
69
Indeed, any other conclusion is unsupportable. It would be remarkable if the same revisers who disavowed any intent to make substantive changes in federal law and drafted § 629(16) as the jurisdictional partner to § 1979 would, without any comment whatsoever,21 and language to § 1979 for the purpose of making its coverage markedly incongruent with that of § 629(16), at the same time expanding its scope far beyond that originally provided by Congress. Indeed, as an illustration of what they were confident Congress had not intended with the jurisdictional counterpart to § 1979, the revisers raised the specter of opening the federal courts to actions completely unrelated to the deprivation of civil rights. See n. 11, supra. Yet Mr. Justice WHITE would hold that just such a result was accomplished when the words 'and laws' quietly appeared in § 1979.
70
The underlying historical question, of course, is not simply what the revisers intended, but what Congress meant by the language of § 1979 as it finally was enacted. In light of Congress' clearly expressed purpose not to alter the meaning of prior law, see Part I, supra, it cannot be argued, absent some indication to the contrary, that Congress intended 'and laws' to mean anything other than what was understood by the revisers, as shown above.
71
Nor was Congress merely silent on this issue. The bill to enact the revision into positive law received considerable attention in the House, where two special night sessions were convened each week for as long as necessary to allow all Members wishing to scrutinize the bill to do so until the entire document has been reviewed.22 See 2 Cong.Rec. 646-650 (1874). During these meetings, many amendments were adopted, see, e. g., id., at 819-829, 849-858, 995-1001, 2709-2714, each on the understanding that it was restorative of the original meaning of the Statutes at Large, and not an amendment to existing law. See id., at 647-648 (remarks of Rep. Poland). During one of these sessions, Representative Lawrence observed that the work of revision necessarily required changes in the language of the original statutes. He illustrated the method used by the revisers by inviting his colleagues to compare the original text of the very civil rights statutes at issue here with the corresponding text of the revision. Included in the statutes read verbatim were § 1 of the 1871 Act, which, of course does not contain the reference to 'laws,' and the text of § 1979, which does. In the course of his remarks Representative Lawrence said: 'A comparison of . . . these will present a fair specimen of the manner in which the work has been done, and from these all can judge of the accuracy of the translation.' 2 Cong. Rec., at 827-828. The House was convened for the sole purpose of detecting language in the revision that changed the meaning of existing law. From the absence of any comment at this point in the session, one may infer that no one present thought that § 1979 would effect such a change.23
72
In spite of the unchallenged body of evidence to the contrary, Mr. Justice WHITE insists that § 1983 'was . . . expanded to encompass all statutory as well as constitutional rights.' Post, at 654. I find this conclusion to be completely at odds with the legislative history of the statute and its jurisdictional counterparts.24
III
73
The legislative history of §§ 1979, 629(16), and 563(12) notwithstanding, the opinion concurring in the judgment argues that the words 'and laws' in § 1983 should be read broadly because the Court has given such a construction to similar language appearing in 18 U.S.C. §§ 241 and 242. This assertion is undermined, however, by the history of the statutes in question.
74
Section 242 originated in § 2 of the 1866 Act. As noted supra, at 627, § 2 made it a misdemeanor to deprive, under color of state law, any citizen of the rights specified in § 1 of that Act. Section 2 was repeated, with some modification, as § 17 of the 1870 Act. Section 17 made criminal the deprivation, under color of state law, of the rights enumerated in § 16.25
75
An entirely independent criminal provisions of the 1870 Act, § 6, made a far broader sweep. It did not require that the conduct it proscribed be performed under color of state law, and it explicitly prohibited certain conduct intended to deprive a citizen of 'any right or privilege granted or secured . . . by the Constitution or laws of the United States.' (Emphasis added.)26 Significantly, this is the only statute discussed in this or Mr. Justice WHITE'S separate opinion in which the reference to statutory law as well as the phrase 'rights secured by the Constitution' appears in the text originally drafted by Congress; in all other cases the reference to 'laws' originated in the revision. Section 6 is thus the only one of these statutes for which there is a substantial argument that Congress truly intended to cover all federal statutory law.
76
Sections 6 and 17 of the 1870 Act were included in the revision as §§ 5508 and 5510, respectively, and Mr. Justice WHITE relies on the fact that both emerged with language that, on its face, covered all rights secured by federal statutory law. While he may well be correct that the words 'Constitution or laws' in § 5508 should be taken at face value, the evidence does not support the same conclusion with respect to § 5510.
77
In the 1872 Draft of the revision, § 5510 was written to provide for criminal sanctions against deprivations, under color of state law, 'of any right secured or protected by section—of the Title CIVIL RIGHTS.' 2 Draft 2627. Although no explanatory note accompanies this section, it is evident from the face of the text that the revisers were attempting to preserve the limited scope of § 17 of the 1870 Act by restricting its coverage to specifically enumerated rights. In the final version of the revision, the language had been changed, apparently by Mr. Durant,27 see supra, at 625, to punish deprivations of rights 'secured . . . by the Constitution and laws.'
78
In light of the historical explanation of the meaning of 'Constitution and laws' in § 1979, it is not surprising that this term should have been substituted for the language used in the draft of § 5510. As we have seen, in other contexts the appendage of 'and laws' to 'rights . . . secured by the Constitution' simply referred to the rights protected by the legislation enacted to provide for equal rights, as authorized by the recently adopted Amendments to the Constitution. Indeed, the House debates make explicit the fact that the change from the revisers' draft of § 5510 to the text ultimately adopted was made simply to be certain that this criminal provision would encompass the rights covered by the existing civil rights statutes discussed at length in this opinion: § 1 of the 1866 Act, § 16 of the 1870 Act, and § 1 of the 1871 Act. See 2 Cong.Rec. 827-828 (1874) (remarks of Rep. Lawrence). There is no evidence that Congress intended § 5510 to cover all federal statutory law.28
79
Despite the apparent similarity of the language of 18 U.S.C. §§ 241 and 242, therefore, they are in fact very different in scope. There is solid historical justification for the view that § 241 'dealt with Federal rights and with all Federal rights, and protected them in the lump,' United States v. Mosley, 238 U.S. 383, 387, 35 S.Ct. 904, 905, 59 L.Ed. 1355 (1915) (interpreting Rev. Stat. § 5508, currently 18 U.S.C. § 241), because the expansive language was put there by Congress itself. The same simply is not true of § 242. Considered in its historical context, the addition of 'and laws' to this statute requires a much more modest reading. Even if there are dicta in our opinions to the effect that §§ 241 and 242 cover an identical class of deprivations of rights, such a construction of § 242 was not made with the benefit of the close historical scrutiny necessary to a proper understanding of this law.29 I agree with Mr. Justice WHITE that 'and laws' means the same thing in § 1983 as in § 242.30 I am convinced, however, that he misconstrues the phrase in both instances.
IV
80
Mr. Justice WHITE states that he is 'not disposed to repudiate' the dicta in some of out prior decisions. See post, at 658. It is, of course, true that several decisions contain statements premised upon the assumption that § 1983 covers a broad range of federal statutory claims. E. g., Edelman v. Jordan, 415 U.S. 651, 675, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974); Greenwood v. Peacock, 384 U.S. 808, 829-830, 86 S.Ct. 1800, 1813, 16 L.Ed.2d 944 (1966). But that assumption has been made uncritically. Until these cases, no prior opinion of the Court or of a Justice thereof has undertaken a close examination of the pertinent legislative history of § 1983, including the work of the commissioners who drafted the Revised Statutes of 1874. Thus, there is nothing in the cases cited by Mr. Justice WHITE that precludes a fresh look at this question.
81
In Monell v.. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), decided just last Term, the Court was willing to go beyond confessing error in previous dicta. Indeed, the Court squarely overruled the holding in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 1965, 32 L.Ed.2d 492 (1961), that municipalities are not 'persons' for purposes of § 1983, despite almost two decades of lower courts' reliance upon Monroe, and notwithstanding our exceptional reluctance to overrule our prior constructions of federal statutes. In a case such as this, where no square holdings have perpetuated our misapprehension of the meaning of § 1983, we should be the more willing to correct historical error.
82
In addition to the historical evidence of the intent of Congress and the revisers in enacting § 1983, there are weighty policy and pragmatic arguments in favor of the construction advanced by this opinion. It is by no means unusual for Congress to implement federal social programs in close cooperation with the States. The Social Security Act, which these cases alleged was violated, is a good example of this pattern of cooperative federalism. If § 1983 provides a private cause of action for the infringement, under color of state law, of any federal, right, then virtually every such program, together with the state officials who administer it, becomes subject to judicial oversight at the behest of a single citizen, even if such a dramatic expansion of federal-court jurisdiction never would have been countenanced when these programs were adopted. To be sure, Congress could amend or repeal § 1983, or, as Mr. Justice WHITE concedes, post, at 672, limit its application in particular cases. As we said in Monell v. New York City Dept. of Social Services, supra, at 695, 98 S.Ct., at 2038, however, we should not "place on the shoulders of Congress the burden of the Court's own error" (quoting Girouard v. United States, 328 U.S. 61, 70, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946)). That problem is avoided if § 1983 is read, as it should be, as encompassing only rights secured by the Constitution and laws providing for equal rights.
83
Mr. Justice WHITE, concurring in the judgment.
84
In order for there to be federal district court jurisdiction under 28 U.S.C. § 1343(3), two requirements must be met. First, the suit must be 'authorized by law,' and, second, the suit must seek redress of a deprivation under color of state law of any right 'secured by the Constitution of the United States or by any Act of Congress providing for equal rights . . ..'1 Title 42 U.S.C. § 1983 provides a cause of action for deprivations under color of state law of any right 'secured by the Constitution and laws' of the United States.2 I agree with the Court's conclusion that, even assuming the claims in these cases—of inconsistency between state welfare practices and the Social Security Act—are 'authorized by law' because they are within the reach of § 1983, the district courts do not have jurisdiction under § 1343(3) because the claims do not involve deprivation of constitutional rights and the Social Security Act is not a law providing for equal rights.3
85
Yet I am not able to reach this conclusion without addressing the issue the Court does not resolve: whether §§ 1983 and 1343(3) are coextensive. Both provisions were derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13,4 which did not contain a jurisdictional provision separate from the cause of action. Rather, the 1871 Act stated that 'such proceeding' as therein authorized would 'be prosecuted in the several district or circuit courts of the United States . . ..'5 However, for over a century since the general statutory revision in 1874—the plain terms of the cause of action and the jurisdictional provision at issue here, § 1343(3), have not been commensurate. In order to determine with confidence the scope of rights encompassed by either provision, it is necessary, I believe, to examine the evolution of and to construe both provisions.
86
Certainly the issue of the reach of the § 1983 cause of action has been properly preserved for review in this Court.6 Throughout the history of this litigation, the aid recipients have urged that §§ 1983 and 1343(3) are necessarily congruent, and that their claims are encompassed by both provisions.7 My three dissenting Brethren are of this view. On the other hand, the State of New Jersey and my Brother POWELL appear to be of the view that while the two provisions are necessarily of equal scope, neither reaches the claims in these cases. The Court, by not resolving the scope of § 1983, apparently rejects the view that the two sections are necessarily coextensive.8 However, it leaves open the possibility embraced by the State of New Jersey and my Brother POWELL that the claims in these cases are encompassed by neither § 1983 nor § 1343(3).
87
I would and do reject this possibility. The provisions are not of equal scope: Although the suits in these cases are authorized by § 1983, they are not within the jurisdiction of the federal courts under § 1343(3). The legislative history supports this view when approached with readiness to believe that Congress meant what the plain words it used say, as we have been taught is the proper approach to civil rights legislation originating in the post-Civil War days. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 436-437, 88 S.Ct. 2186, 2201-2202, 20 L.Ed.2d 1189 (1968); United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). The conclusion that § 1983 provides a remedy for deprivations under color of state law for federal statutory as well as constitutional rights not only reflects a straightforward and natural reading of its language, but also is supported by our cases that have assumed or indicated in dicta that this is the correct construction of the provision, as well as by our decisions giving the same construction to the post-Civil War statutes criminalizing invasions of federal rights in language almost identical to that found in § 1983. On the other hand, the conclusion that § 1343(3) encompasses only rights granted under 'equal rights' statutes, in addition to constitutional rights, is compelled because of the equally plain terms of that statute and the absence of any overriding indication in the legislative history that these plain terms should be ignored. The argument of my Brother POWELL that § 1983 was intended to remedy only those rights within the 'equal rights' ambit of § 1343(3) is not at all convincing with respect to the meaning to be attached to its predecessor, § 1979 of the Revised Statutes of 1874, at the time it was adopted, much less with respect to the construction to be accorded it in the light of developments during the last century.
88
* The first post-Civil War legislation relevant to ascertaining the meaning of §§ 1983 and 1343(3) is the Civil Rights Act of 1866, 14 Stat. 27. Section 1 of that Act secured to all persons, with respect to specified rights, such as the right to contract, 'the same right . . . as is enjoyed by white citizens.' Under § 2 of the 1866 Act, deprivation of these rights under color of state law was a misdemeanor.9 Section 3 of the Act provided concurrent district and circuit court jurisdiction 'of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them' by § 1. Section 3 also provided for removal of certain criminal and civil cases from federal court. Unlike § 2, neither § 1 nor § 3 was limited to deprivations arising under color of state law.10 Jones v. Alfred H. Mayer Co., supra, 392 U.S. at 420-437, 88 S.Ct., at 2193-2202.
89
Because of uncertainty as to its authority under the Thirteenth Amendment to enact the foregoing provisions, Congress in §§ 16 and 17 of the Enforcement Act of 1870, 16 Stat. 144, substantially re-enacted §§ 1 and 2 of the 1866 Act pursuant to § 5 of the Fourteenth Amendment, which had been ratified in the interim. Although § 8 of the 1870 Act provided for concurrent district and circuit court jurisdiction 'of all causes, civil and criminal, arising under this act, except as herein otherwise provided,' § 18 re-enacted the 1866 Act by reference and provided that §§ 16 and 17 would be enforced according to the provisions of the 1866 Act. Further, § 6 of the 1870 Act made it a crime to conspire to deny any person 'any right or privilege granted or secured . . . by the Constitution or laws of the United States.' In contrast to § 17 (re-enacting § 2 of the 1866 Act), which criminalized only color-of-law deprivations of the specified rights of equality guaranteed by § 16, § 6 reached 'all of the rights and privileges' secured by 'all of the Constitution and all of the laws of the United States.' United States v. Price, supra, 383 U.S., at 800, 86 S.Ct., at 1160 (emphasis in original).11
90
Section 1 of the Civil Rights Act of 1871, following the lead of the 1866 and 1870 Acts in opening the federal courts to remedy deprivations of federal rights, created a new civil remedy neither repetitive of nor entirely analogous to any of the provisions in the earlier Civil Rights Acts. Section 1 of the 1871 Act, like § 17 of the 1870 Act, provided redress only for deprivations of rights under color of state law. But whereas § 17 applied only where there was deprivation of the rights of equality secured or protected by § 16 (re-enacting § 1 of the 1866 Act), the new civil remedy in the 1871 Act encompassed deprivations of 'any rights, privileges, or immunities secured by the Constitution of the United States.'12 In this respect it was similar to the criminal provision provided in § 6 of the 1870 Act, which, however, encompassed invasions of any federal statutory, as well as constitutional, right. Moreover, although the new civil remedy did not reach deprivations under color-of-law of statutory rights, neither did it modify or replace remedies under the 1866 and 1870 Acts for deprivations of rights of equality specified therein, which remedies were applicable to private deprivations as well as deprivations under color of state law,13 see Greeman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323, 1326-1328 (1952).
91
As relevant for present purposes, this was the status of civil rights legislation when the Revised Statutes of 1874 were adopted. With respect to the matters at issue here, the 1874 revision of the federal statutory law did not appreciably alter the substantive rights guaranteed or secured by the federal law. Federal constitutional rights, of course, could not have been amended by the revision. Furthermore, insofar as material to these cases, there were no substantive statutory rights newly created, modified, or eliminated.14 Thus, § 16 of the 1870 Act, in essence a restatement of § 1 of the 1866 Act, survived but was split into two sections of the Revised Statutes, §§ 1977 and 1979.15 These two sections remained a declaration of rights that all citizens in the country were to have against each other, as well as against their Government. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).
92
With respect to the remedial power of the federal courts, however, the 1874 revision effected substantial changes16 that are relevant to the present discussion.
93
First, in the area of crimes, while § 6 of the 1870 Act (criminalizing private as well as color-of-law conspiracies to deprive persons of their federal constitutional or statutory rights) was retained essentially unchanged as§ 5508 of the Revised Statutes, § 17 of the 1870 Act (the criminal provision originally enacted as § 2 of the 1866 Act and directed solely at deprivations under color of state law) was expanded to parallel § 5508. Section 17 had criminalized only the infringement of the specific rights of equality guaranteed by § 16 of the 1870 Act, but the new provision, § 5510 of the Revised Statutes, was "broadened to include as wide a range of rights as [§ 5508] already did: 'any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States.' " United States v. Price, 383 U.S., at 803, 86 S.Ct., at 1161.
94
Second, the civil remedy directed solely at deprivations under color of law was likewise expanded to encompass all statutory as well as constitutional rights. Thus, whereas § 1 of the 1871 Act had provided for redress of color-of-law deprivations of rights "secured by the Constitution of the United States," § 1979 of the Revised Statutes provided a civil remedy for such de privation of rights secured by the "Constitution and laws," the substantive federal rights protected thus mirroring those covered by §§ 5508 and 5510.17 As noted with respect to the widened scope of § 5510: "The substantial change thus effected was made with the customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance." United States v. Price, 383 U.S., at 803, 86 S.Ct., at 1161 (footnote omitted).
95
Third, the jurisdictional provisions of the various Civil Rights Acts were split off and consolidated in the Revised Statutes. Section 3 of the 1866 Act (re-enacted under § 18 of the 1870 Act), which provided federal jurisdiction for "all causes . . . affecting persons . . . denied" the rights now stated in §§ 1977 and 1978, was entirely deleted. The jurisdictional provisions of the 1871 Act, authorizing federal courts to entertain civil suits brought pursuant thereto, became the basis for the new jurisdictional provisions in the Revised Statutes, which were stated separately for the district and circuit courts. Thus, Rev.Stat. § 563(12) invested the district courts with jurisdiction over all civil actions—without regard to the amount in controversy—for any deprivation under color of state law of any rights "secured by the Constitution of the United States, or . . . by any law of the United States. . . ."18 This jurisdictional grant tracked the expanded remedy provided in § 1979.
96
With respect to the circuit courts, however, Rev.Stat. § 629(16) provided jurisdiction over deprivation under color of state law of federal constitutional rights—without regard to the amount in controversy—but stopped short of encompassing suits involving violations of statutory rights, referring only to any right "secured by the Constitution of the United States, or . . . by any law providing for equal rights. . . ."19 Nonetheless, the circuit courts as well as the district courts were separately provided with criminal jurisdiction over cases arising under §§ 5508 and 5510, both of which reached deprivation of rights secured not only by the Constitution but also by any law of the Union.20
97
Thus, under the Revised Statutes of 1874 the federal circuit courts were not empowered to entertain certain categories of suits brought to vindicate federal statutory rights against state invasion. Of course, at this time neither the district nor circuit courts had been granted general federal-question jurisdiction; rather, they existed to deal with diversity cases and suits in specialized areas of federal law such as federal criminal prosecutions, civil suits by the United States, and civil rights cases. In 1875, however, Congress extended to the circuit courts original jurisdiction, concurrent with the courts of the several States, "of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made. . . ." Act of Mar. 3, 1875, 18 Stat. 470.21 Thereafter, on the face of the statutes, the circuit courts had original jurisdiction, if the jurisdictional amount was satisfied, over any suit arising under the Constitution or any law of the United States, as well as jurisdiction, without regard to the amount in controversy, of any case involving a color-of-state-law deprivation of any constitutional right or any right secured by law providing for equal rights.22 The district courts had no general "arising under" jurisdiction over suits alleging deprivation under color of state law of any right secured either by the Constitution or by any law of the United States, without regard to the amount in controversy.
98
With the adoption of the 1911 Judicial Code, the circuit courts were abolished, and the district courts became the sole federal courts of first instance. The principal elements of the district court's jurisdiction included diversity cases involving at least $3,000,23 all cases arising under the Constitution or laws of the United States involving in excess of $3,000,24 all criminal offenses under the federal laws—including those arising under Rev.Stat. §§ 5508 and 551025 —and a series of specialized types of federal-law cases having no amount-in-controversy requirement.26 Included in this latter category was § 24(14), which provided jurisdiction for all suits at law or in equity to redress deprivation under color of state law 'of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States.' With minor changes in wording, this provision is now codified at 28 U.S.C. § 1343(3).
99
The language of Rev.Stat. § 1979 (now codified at 42 U.S.C. § 1983) remained unchanged, providing a federal cause of action for color-of-law deprivations of any right 'secured by the Constitution and laws.' On the face of the jurisdictional statutes, then, it would appear that after 1911 § 1983 cases could be brought in federal court under general federal-question jurisdiction if they involved the necessary amount in controversy; otherwise, they could be entertained in federal court only if they sought redress for deprivation of a constitutional right or of a right under a federal statute providing for equal rights.
II
100
Having examined the context in which the foregoing statutory developments occurred, I agree with the Court that there is nothing in the relevant provisions or in their history that should lead us to conclude that Congress did not mean what it said in defining the jurisdiction of the circuit and district courts in 1874 or, much less, that in adopting the Judicial Code in 1911, Congress meant the language 'any law of the United States providing for equal rights' to mean 'any law of the United States.'
101
By the same token, I also conclude that nothing in the history and evolution of § 1983 leads to the conclusion that Congress did not mean what it said in 1874 in describing the rights protected as including those secured by federal 'laws' as well as by the 'Constitution.' I am, therefore, not disposed to repudiate the view repeatedly stated in previous cases that § 1983 encompasses federal statutory as well as constitutional entitlements. Although the Court has not previously given extended consideration to the scope of the rights protected by § 1983,27 our acceptance of the plain terms of that statute and analogous criminal proscriptions has been consistent, and for over a century Congress has not acted to rectify any purported error in our construction of these provisions.
102
Until today, we have expressly declined, most recently in Hagans v. Lavine, 415 U.S. 528, 533-535, n. 5, 94 S.Ct. 1372, 1377-1378, n. 5, 39 L.Ed.2d 577 (1974),28 to indicate whether Social Security Act claims based solely on alleged inconsistency between state and federal law might be within the jurisdiction of the federal courts under § 1343. But we have not doubted the propriety of challenging under the 'and laws' provision of § 1983 state action involving deprivation of federal statutory rights. On the very day the jurisdictional issue was reversed in Hagans, the Court stated in Edelman v. Jordan, 415 U.S. 651, 675, 94 ,S.Ct. 1347, 1361-1362, 39 L.Ed.2d 662 (1974):
103
'It is, of course, true that Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States.'
104
And in Greenwood v. Peacock, 384 U.S. 808, 829-830, 86 S.Ct. 1800, 1813, 16 L.Ed.2d 944 (1966), the Court noted that '[u]nder 42 U.S.C. § 1983 (1964 ed.) the [state] officers may be made to respond in damages not only for violations of rights covered by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well.' Other dicta recognizing that § 1983 encompasses statutory federal rights are found in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 700-701, 98 S.Ct. 2018, 2041, 56 L.Ed.2d 611 (1978);29 Mitchum v. Foster, 407 U.S. 225, 239-240, n. 30, 92 S.Ct. 2151, 2160-2161 n. 30, 32 L.Ed.2d 705 (1972);30 Lynch v. Household Finance Corp., 405 U.S. 538, 543 n. 7, 92 S.Ct. 1113, 1117 n. 7, 31 L.Ed.2d 424 (1972);31 and Hague v. CIO, 307 U.S. 496, 525-526, 59 S.Ct. 954, 968-969, 83 L.Ed. 1423 (1939) (opinion of Stone, J.).32
105
Under the holding in Hagans, supra, 415 U.S., at 536, 94 S.Ct., at 1378, that a federal court has power to hear a pendent claim based on the Social Security Act when a substantial constitutional claim is also raised,33 a cause of action for the pendent statutory claim must still be 'authorized by law' in order for the claim to be cognizable in federal court under § 1343. That cause of action in Hagans, as in previous decisions of this Court that have reviewed the statutory claim, was provided by § 1983.
106
Likewise, our previous cases construing Rev.Stat. § 5508 (now 18 U.S.C. § 241) and Rev.Stat. § 5510 (now 18 U.S.C. § 242)—each of which describes the rights protected in language nearly identical to that used in § 198334—leave no doubt that federal statutory as well as constitutional entitlements are encompassed thereby.
107
One of the first cases35 construing what is now § 241 held that the rights 'secured by the Constitution or laws' included homesteading rights granted in §§ 2289-2291 of the Revised Statutes. United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673 (1884).36 In Logan v. United States, 144 U.S. 263, 293-295, 12 S.Ct. 617, 626-627, 36 L.Ed. 429 (1892), the Court was noticeably careful to hold that the right to be secure from unauthorized violence while in federal custody was secured 'by the Constitution and laws of the United States.' Accord, In re Quarles, 158 U.S. 532, 537-538, 15 S.Ct. 959, 961, 39 L.Ed. 1080 (1895). Moreover, subsequent decisions on the scope of §§ 241 and 242, examining issues not here relevant, have cited Waddell, Logan, and Quarles approvingly in the respect considered above. See United States v. Mosley, 238 U.S. 383, 386-387, 35 S.CT. 904, 905, 59 L.Ed. 1355 (1915); Screws v. United States, 325 U.S. 91, 108-109, 65 S.Ct. 1031, 1038-1039, 89 L.Ed. 1495 (1945) (opinion of Douglas, J.); id., at 124-126, and n. 22, 65 S.Ct., at 1046-1047, and n. 22 (opinion of Rutledge, J.); United States v. Williams, 341 U.S. 70, 80, 71 S.Ct. 581, 586, 95 L.Ed. 758 (1951) (Williams II) (opinion of Frankfurter, J.); United States v. Guest, 383 U.S., at 771, 86 S.Ct., at 1185 (opinion of Harlan, J.); id., at 759 n. 17, 86 S.Ct., at 1179 n. 17; United States v. Price, 383 U.S., at 805 n. 18, 86 S.Ct., at 1162 n. 18.
108
As noted, §§ 242 and 1983 were both derived from post-Civil War legislation providing redress for invasions of rights under color of state law. In the Revised Statutes of 1874, § 242 was expanded to encompass all constitutional rights, and both provisions were expanded to encompass rights secured by federal 'laws.' The color-of-law requirement in each is the same.37 Apart from differences relating to the nature of the remedy invoked,38 they are commensurate. See Monroe v. Pape, 365 U.S. 167, 183-185, 81 S.Ct. 473, 481-483, 5 L.Ed.2d 492 (1961). Accordingly, I would hold with respect to 42 U.S.C. § 1983, as had been impliedly held with respect to 18 U.S.C. § 242, that the term 'laws' encompasses all federal statutes. Like §§ 241 and 242, § 1983 must be deemed to have 'dealt with Federal rights and with all Federal rights, and [to have] protected them in the lump.' United States v. Mosley, supra, 283 U.S., at 387, 35 S.Ct., at 905. There can be 'no basis whatsoever for a judgment of Solomon which would give to the statute less than its words command.' United States v. Price, supra, 383 U.S., at 803, 86 S.Ct., at 1161.
III
109
It is earnestly argued, however, that 42 U.S.C. § 1983, formerly Rev.Stat. § 1979, and 18 U.S.C. § 242, formerly Rev.Stat. § 5510, should be read as protecting against deprivation under color of state law only constitutional rights and rights granted under federal 'equal rights' statutes. A corollary of this argument is that, although in 1874 Congress expressly invested the district courts with jurisdiction over all civil cases involving state interference with any right secured by the Constitution or by any federal law, see Rev.Stat. § 563(12), Congress actually meant to refer, in addition to the Constitution, only to equal rights laws.
110
To the extent that these arguments are rooted in the notion that the 1866 Civil Rights Act provided the outer limits of the federal civil rights effort in the post-Civil War years, and thus implicitly limits the reach and scope of the relevant portions of the 1870 and 1871 Acts, they are quite unpersuasive. The 1870 Act, it is true, re-enacted the 1866 Act, but it also provided its own unique approaches, such as that adopted in § 6, proscribing private or public conspiracies interfering not merely with the specific rights of equality cataloged in § 1 of the 1866 Act, but with any right secured by federal constitutional or statutory law. Similarly, it cannot be supposed that in § 1 of the 1871 Act, Congress was merely granting a private cause of action for vindicating rights of equality with respect to enumerated activities within state legislative power, secured by § 1 of the 1866 Act, re-enacted as § 16 of the 1870 Act. The 1871 provision granted a remedy and jurisdiction in the federal courts to protect against state invasions of any and all constitutional rights; and whereas this cause of action applied only to invasions under color of state law, the earlier provisions applied as against private persons as well, with federal jurisdiction to hear 'all causes . . . affecting persons' denied the specific, enumerated rights. Thus, the very limiting construction urged of the term 'and laws' as used in the Revised Statutes of 1874 cannot withstand scrutiny if predicated upon the proposition that the sole concern of the post-Civil War enactments was with vindicating particular rights of equality.
111
The more specific basis for the argument that the scope of § 1983 should be narrowed to less than its plain terms relates to the grant of civil rights jurisdiction to the circuit courts in the Revised Statutes. It is asserted that just as Congress limited the jurisdiction of those courts to suits involving constitutional rights or statutory rights secured in 'equal rights' statutes, it intended likewise to confine the jurisdiction of the district courts under § 563(12), the remedy provided by § 1979, and the criminal proscriptions in § 5510. However, the marginal notes and cross-references in the Revised Statutes for each of these provisions are as broad as the plain terms of the statutes themselves,39 and at least as to the civil cause of action and criminal proscription against deprivation under color of state law, we know that the alternation in terms was noted on the floor of the Congress that enacted the Revised Statutes.40 In fact, the marginal notations, as well as the entire statutory scheme, indicate that if an error was made at some point, it was not in the drafting of § 563(12), § 1979, or § 5510, all of which employed broad terminology reaching federal statutes, but in the drafting of the circuit court provision. The marginal notation in the Revised Statutes for § 629(16), like that for the district court provision, refers to 'Suits to redress deprivation of rights secured by the Constitution and laws . . .'41 (emphasis added), the language of §§ 1979 and 5510.
112
Nor do I find as unambiguous and as persuasive as does my Brother POWELL the commentary of the revisers published in 1872 in connection with the anticipated definition of the circuit court's jurisdiction. 1 Revision of the United States Statutes as Drafted by the Commissioners Appointed for that Purpose 359-363 (1872) (hereinafter Draft). The revisers went to some length to explain their deletion of the jurisdictional language used in § 3 of the 1866 Act (re-enacted by refference in § § 18 of the 1870 Act). The provision, in granting jurisdiction for 'all causes, civil and criminal, affecting persons' denied rights, appeared, according to the revisers, to 'allow every person who is denied any civil right in the courts of his own State to invoke the judicial power of the United States in every kind of controversy . . ..' 1 Draft 362. The revisers explained that a literal interpretation of such language 'would involve consequences which Congress cannot be supposed to have intended . . .,' id., at 361, and further questioned whether such a broad grant of jurisdiction was even within the limitations of Art. III, § 2, of the Constitution, which, they noted, extended federal judicial power only to cases 'arising under this Constitution, the Laws of the United States, and Treaties . . ..' 1 Draft 362 (emphasis in original). Thus, instead of using the jurisdictional language in § 3 of the 1866 Act, the revisers decided to track the language in § 1 of the 1871 Act, which provided jurisdiction only for suits involving 'deprivation' of rights, rather than for all suits involving persons denied rights.
113
However, the revisers drafting the circuit court provision were not working from the new and expanded, cause of action provided in § 1979, but from § 1 of the 1871 Act, which, they pointed out, referred to deprivation of rights 'secured by the Constitution of the United States.' 1 Draft 362 (emphasis in original). If this language were transferred verbatim to the new circuit court jurisdictional provision, 'it might perhaps be held that only such rights as are specifically secured by the Constitution, and not every right secured by a law authorized by the Constitution, were here intended . . ..' Ibid. Thus, the revisers thought it advisable—'deemed safer'—to include 'a reference to the civil-rights act.' My Brother POWELL is able to conclude from the foregoing42 that the only statutory rights the revisers had in mind—in §§ 1979 and 5510, as well as in the district and circuit court jurisdictional provisions—were those catalogued in § 16 of the 1870 Act, essentially a re-enactment of § 1 of the 1866 Act.
114
Beyond the most obvious and overriding difficulty with this approach to statutory construction—whereby the plain terms of three statutes are ignored on the basis of the revisers' commentary to a fourth and apparently inconsistent provision—there are several more technical problems with my Brother POWELL's approach. First, the reference ultimately included in the circuit court provision was not to § 16 of the 1870 Act, but to 'any law providing for equal rights . . .,' a far broader reference than necessary to achieve what those writing the commentary apparently intended to achieve.
115
Second, if the revisers' comment is to be taken at face value, they must be held to have assumed that 'every right secured by a law authorized by the Constitution' was secured by an 'equal rights' statute, or even more incredibly, by § 16 of the 1870 Act. But surely my Brother POWELL cannot be suggesting that the Constitution is so limited, and such a narrow view of the constitutional rights protected by § 1983 has been firmly rejected by this Court.43
116
Third, if the revisers likewise intended only to accommodate the 1866 and 1870 Acts in the district court jurisdictional provision, § 563(12), referring to rights secured by 'any law of the United States' was a most peculiar and clumsy way of doing so.44
117
Fourth, if, as does indeed appear from the comment relied upon, it was the revisers' objective at least to provide jurisdiction for all suits alleging deprivation of the specific rights guaranteed in the 1866 and 1870 Acts, they failed in that attempt. Whereas § 3 of the 1866 Act had provided jurisdiction for suits alleging private, as well as color-of-law, deprivation of the rights enumerated, both § 629(16) and § 563(12), like § 1979, were limited to deprivations under color of state law.45
118
In view of the foregoing ambiguities, contradictions, and uncertainties, there is no satisfactory basis for overriding the clear terms of the Revised Statutes. The 'customary stout assertions' of the revisers notwithstanding, it is abundantly obvious that the 1874 revision did change the terms of certain remedial and jurisdictional provisions. Congress was well aware of the broadened scope of § 1 of the 1871 Civil Rights Act as redrafted in the Revised Statutes. And, for whatever reason, the limiting words in the circuit court jurisdictional provision were accepted and enacted by Congress; if there was a slip of the pen, it is more arguable that the mistake occurred here.46
119
Almost immediately, however, the circuit courts were given general federal-question jurisdiction, and in 'codifying, revising, and amending' the laws relating to the judiciary in 1911,47 there is no indication whatsoever that Congress acted in less than a knowing and deliberate way in confining the jurisdiction of the district courts—where the amount-incontroversy requirement was not met—to those color-of-law deprivations of rights secured by the Constitution or federal equal rights statutes.48 The result is that since 1911, there have been some § 1983 suits not cognizable under § 1343(3) and not cognizable in district court at all unless they involve the requisite jurisdictional amount under general federal-question jurisdiction. The effect of this amount-in-controversy prerequisite was and is to bar from the lower federal courts not only certain claims against state officers but also many private causes of actions not involving injury under color of law. Whatever the wisdom of precluding resolution of all federal-question cases in the federal courts—rather than leaving some of them to decision in the state courts (a course of action possibly in the process of being reversed by Congress)49—the uneven effect of this policy does not warrant refusal to recognize and apply the clear limiting language of § 1343(3). Cf. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).
IV
120
The foregoing examination of the evolution of §§ 1983 and 1343(3) demonstrates to my satisfaction that the two provisions cannot be read as though they were but one statute.50 The manifest object of the Reconstruction Congress to provide a private remedy for deprivation under color of state law of federal rights is one reason I am disposed to give no less than full credit to the language of § 1983. However, this conclusion that federal statutory claims are appropriately brought under § 1983 does not proceed to any extent from the notion that this statute, by its terms or as perceived when enacted, 'secure[s]' rights or 'provide[s] for equal rights,' in the language of § 1343(3). Title 42 U.S.C. §§ 1981 and 1982, derived from § 1 of the 1866 Civil Rights Act and codified at §§ 1977 and 1978 of the Revised Statutes, enunciate certain rights and state that they are to be enjoyed on the same basis by all persons. Thus, these statutes both secure rights and provide for equal rights, whereas § 1983, derived from § 1 of the Civil Rights Act of 1871, provides only a cause of action—a remedy—for violations of federally protected rights.
121
Perhaps it could be said that the very process of judicial redress for deprivation of rights 'secures' such rights and 'provides' that they shall be 'equal' in the sense that they shall be enjoyed by all persons. I agree that without processes for their enforcement, the rights guaranteed in the Constitution and in federal statutes may not be fully realized. Further, provision of remedies for denial of rights to some persons is essential to realization of these rights for all persons. However, a remedy—a cause of action without more—guarantees neither equality nor underlying rights. It is, rather, a process for enforcing rights elsewhere guaranteed. The substantive scope of the rights which may be the basis for a cause of action within § 1343(3) jurisdiction is limited to the Constitution and those federal statutes that guarantee equality of rights. The substantive scope of the rights which may be protected and vindicated under § 1983 against contrary state action, on the other hand, includes not only federal constitutional rights but also all rights secured by federal statutes unless there is clear indication in a particular statute that its remedial provisions are exclusive or that for various other reasons a § 1983 action is inconsistent with congressional intention.
122
Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join,* dissenting.
123
My disagreement with the opinion and judgment of the Court in these cases is narrow but dispositive. Because 28 U.S.C. § 1343(3) refers to 'any Act of Congress providing for equal rights,' because 42 U.S.C. § 1983 is such an Act of Congress, and because § 1983 by its terms clearly covers lawsuits such as the ones here involved, I would hold that the plaintiffs properly brought these cases in Federal District Court.1
124
First of all, it seems to me clear that this Court has already settled the question whether § 1983 creates a cause of action for these plaintiffs. We have explicitly recognized that the case of 'Rosado v. Wyman, 397 U.S. 397, [90 S.Ct. 1207, 25 L.Ed.2d 442] (1970), held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States.' Edelman v. Jordan, 415 U.S. 651, 675, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662.2 And a long line of this Court's cases necessarily stands for that proposition. Miller v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194; Quern v. Mandley, 436 U.S. 725, 98 S.Ct. 2068, 56 L.Ed.2d 658; Van Lare v. Hurley, 421 U.S. 338, 95 S.Ct. 1741, 44 L.Ed.2d 208; Edelman v. Jordan, supra; Hagans v. LaVine, 415 U.S. 528, 94 S.CT. 1372, 39 L.Ed.2d 577; Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352; Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285; Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569; Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448; California Dept. of Human Resources v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666; Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647. I think it is far too late in the day, therefore, to argue that the plaintiffs in these cases did not state causes of action cognizable in the federal courts.
125
Even if this impressive weight of authority did not exist, however, and the question before us were one of first impression, it seems clear to me that the plain language of § 1983 would dictate the same result. For that statute confers a cause of action for the deprivation under color of state law of 'any rights . . . secured by the Constitution and laws.' Only if the legislative history showed unambiguously that those words cannot mean what they say would it be possible to conclude that there were no federal causes of action in the present cases. But, as the Court correctly states, 'the legislative history of the provisions at issue in these cases ultimately provides us with little guidance as to the proper resolution of the question presented here.' Ante, at 610.
126
The Court's reading of §§ 1983 and 1343(3) results in the conclusion that Congress intended § 1983 to create some causes of action which could not be heard in a federal court under § 1343(3), even though §§ 1983 and 1343(3) both originated in the same statute (§ 1 of the so-called Ku Klux Klan Act). This anomaly is quite contrary to the Court's understanding up to now that 'the common origin of §§ 1983 and 1343(3) in § 1 of the 1871 Act suggests that the two provisions were meant to be, and are, complementary.' Examining Board v. Flores de Otero, 426 U.S. 572, 583, 96 S.Ct. 2264, 2272, 49 L.Ed.2d 65. See Lynch v. Household Finance Corp., 405 U.S. 538, 542-552, 92 S.Ct. 1113, 1116-1117, 31 L.Ed.2d 424.
127
Section 1983 is a statute 'providing for equal rights.' The Revised Statutes of 1874 included § 1979, the predecessor of § 1983, in Title XXIV, entitled 'Civil Rights.' Several sections in the Title, including § 1979, were cross-referenced to the predecessors of § 1343(3), Rev.Stat. §§ 563(12) and 629(16). In the context of the Revised Statutes, the term 'providing for equal rights' found in § 629(16) served to identify the sections of the Civil Rights Title which involved rights enforceable through civil actions.
128
The Court's reasoning to the contrary seems to rely solely on the fact that § 1983 does not create any rights. Section 1343(3) does not require, however, that the Act create rights. Nor does it require that the Act 'provide' them. It refers to any Act of Congress that provides 'for' equal rights. Section 1983 provides for rights when it creates a cause of action for deprivation of those rights under color of state law. It is, therefore, one of the statutes for which § 1343(3), by its terms, confers jurisdiction upon the federal district courts.
129
Today's decision may not have a great effect on the scope of federal jurisdiction. If the amount in controversy exceeds $10,000, any plaintiff raising a federal question may bring an action in federal court under 28 U.S.C. § 1331(a). Many other sections of Title 28 confer jurisdiction upon the federal courts over statutory questions without any requirement that a monetary minimum be in controversy. See, e. g., 28 U.S.C. § 1333 (admiralty and maritime jurisdiction); 28 U.S.C. § 1334 (bankruptcy); 28 U.S.C. § 1337 (Acts of Congress regulating commerce). Still other plaintiffs will find their way into the federal courts through jurisdictional provisions codified with the substantive law, and not incorporated in Title 28. See, e. g., 12 U.S.C. § 2614 (Real Estate Settlement Procedures Act of 1974); 15 U.S.C. § 1640(e) (Truth in Lending Act); 42 U.S.C. § 7604 (1976 ed., Supp. I) (Clean Air Act). Finally, even a welfare recipient with a federal statutory claim may sue in a federal court if his lawyer can link this claim to a substantial constitutional contention. And under the standard of substantiality established by Hagans v. Lavine, supra, such a constitutional claim would not be hard to construct.
130
But to sacrifice even one lawsuit to the Court's cramped reading of 28 U.S.C. § 1343(3) is to deprive a plaintiff of a federal forum without justification in the language or history of the law.
131
I respectfully dissent.
132
Mr. Justice BRENNAN and Mr. Justice MARSHALL believe that the issue discussed in footnote 2 of this dissenting opinion need not be addressed in this case. They therefore express no view of the merits of that particular question.
*
Together with No. 77_5324,Gonzalez, Guardian v. Young, Director, Hudson County Welfare Board, et al., on certiorari to the United States Court of Appeals for the Third Circuit.
1
'The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
* * * * *
'(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
'(4) To 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.' 28 U.S.C. §§ 1343(3) and (4).
Jurisdiction under § 1343(4), it should be noted, is not limited to actions against state officials or individuals acting under color of state law.
2
§ 206, 81 Stat. 893; see 42 U.S.C. § 606(e)(1). The program is fully described in Quern v. Mandley, 436 U.S. 725, 98 S.Ct. 2068, 56 L.Ed.2d 658.
3
'[Petitioner] resides with her two children in Jersey City, New Jersey. Each month, she receives $235.00 under the Aid to Families with Dependent Children program (AFDC), 42 U.S.C. § 601 et seq., as well as $157.00 under the Social Security Administration's disability program for her one retarded son. On February 2, 1976, Gonzalez received and cashed both checks at a neighborhood food market. Upon leaving the store, she was accosted by a robber who stole the cash. The following day she explained her situation to the Hudson County Welfare Board, requesting $163.00 in emergency assistance funds to cover her rent and utility bills.' 560 F.2d 160, 163 (CA3 1977).
4
'When because of an emergent situation over which they have had no control or opportunity to plan in advance, the eligible unit is in a state of homelessness; and the County Welfare Board determines that the providing of shelter and/or food and/or emergency clothing and/or minimum essential house furnishings are necessary for health and safety, such needs may be recognized in accordance with the regulations and limitations in the following sections.' N.J.Admin. Code § 10:82-5.12 (1976).
5
Section 406(e)(1), as set forth in 42 U.S.C. § 606(e)(1), provides:
'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 (or, within such period as may be specified by the Secretary, has been) living with any of the relatives specified in subsection (a)(1) of this section in a place of residence maintained by one or more of such relatives as his or their own home, but only where such child is without available resources, the payments, care, or services involved are necessary to avoid destitution of such child or to provide living arrangements in a home for such child, and such destitution or need for living arrangements 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 with respect to, or medical care or any other 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.'
6
418 F.Supp. 566, 569 (1976).
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.'
7
Article VI, cl. 2, of the United States Constitution provides:
'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'
8
560 F.2d, at 169.
9
Section 1331(a) provides:
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States, except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.'
10
See, e. g., King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448.
11
45 CFR §§ 233.20(a)(3)(ii)(C), 233.90(a) (1974).
12
Houston Welfare Rights Org. v. Vowell, 391 F.Supp. 223 (1975).
13
Houston Welfare Rights Org. v. Vowell, 555 F.2d 1219 (1977).
14
It will be noted that the Court of Appeals did not hold that the Social Security Act was itself an Act of Congress of the kind described in the jurisdiction statute.
15
The first section of 'An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes' reads as follows:
'That any 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 within the jurisdiction of the United States 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; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled 'An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication; and the other remedial laws of the United States which are in their nature applicable in such cases.' 17 Stat. 13.
16
'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.' Rev.Stat. § 1979.
17
Subparagraph 'Twelfth' of § 563 authorized district court jurisdiction '[o]f all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, ordinance, regulation, custom, or usage of any State, of any right, privilege, or immunity secured by the Constitution of the United States, or of any right secured by any law of the United States to persons within the jurisdiction thereof.'
18
Subparagraph 'Sixteenth' of § 629 granted the circuit courts original jurisdiction '[o]f all suits authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States.'
19
36 Stat. 1087, 1167.
20
See § 24(14), 36 Stat. 1092.
21
The sections have, of course, been renumbered.
22
H.R. 6127, § 121, 85th Cong., 1st Sess. (1957).
23
Ibid. In addition to conferring federal jurisdiction, the bill also provided that such suits should be entertained without regard to exhaustion by the aggrieved party of administrative or other judicial remedies.
24
See H.R.Rep. No. 291, 85th Cong., 1st Sess., 11 (1957), U.S.Code Cong. & Admin.News 1957, pp. 1966, 1976 ('Section 122 amends section 1343 of Title 28, United States Code. These amendments are merely technical amendments to the Judicial Code so as to conform it with amendments made to existing law by the preceding section of the bill').
25
The Act of 1871, known as the Ku Klux Klan Act, was directed at the organized terrorism in the Reconstruction South led by the Klan, and the unwillingness or inability of state officials to control the widespread violence. Section 1 of the Act generated the least concern; it merely added civil remedies to the criminal penalties imposed by the 1866 Civil Rights Act. See Cong.Globe, 42d Cong., 1st Sess., 568 (1871) (remarks of Sen. Edmunds); id., App. 68 (remarks of Rep. Shellabarger). The focus of the heated debate was on the succeeding sections of the Act, which included provisions imposing criminal and civil penalties for conspiracies to deprive individuals of constitutional rights, and authorizing the President to suspend the writ of habeas corpus and use armed forces to suppress 'insurrection.' §§ 2-5, 17 Stat. 13; see Cong.Globe, 42d Cong., 1st Sess., App. 220 (1871) (remarks of Sen. Thurman). See generally Developments in the Law—Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1153-1156 (1977).
26
See Cong.Globe, 42d Cong., 1st Sess., 577 (1871) (remarks of Sen. Trumbull); Developments, supra n. 25, at 1155.
27
See S.Rep. No. 388, 61st Cong., 2d Sess., pt. 1, p. 15 (1910); H.R.Doc. No. 783, 61st Cong., 2d Sess., pt. 1, p. 19 (1910).
28
This caution is also mandated by the settled rule that the party claiming that a court has power to grant relief in his behalf has the burden of persuasion on the jurisdictional issue, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135, especially when he is proceeding in a court of limited jurisdiction. Turner v. Bank of North America, 4 Dall. 7, 11, 1 L.Ed. 718.
29
'The argument that the phrase in the statute 'secured by the Constitution' refers to rights 'created', rather than 'protected' by it, is not persuasive. The preamble of the Constitution, proclaiming the establishment of the Constitution in order to 'secure the Blessings of Liberty', uses the word 'secure' in the sense of 'protect' or 'make certain'. That the phrase was used in this sense in the statute now under consideration was recognized in Carter v. Greenhow, 114 U.S. 317, 322, 5 S.Ct. 928, 930, 931, 29 L.Ed. 202, where it was held as a matter of pleading that the particular cause of action set up in the plaintiff's pleading was in contract and was not to redress deprivation of the 'right secured to him by that clause of the Constitution' [the contract clause], to which he had 'chosen not to resort'. See, as to other rights protected by the Constitution and hence secured by it, brought within the provisions of R.S. § 5508, 18 U.S.C.A. § 51; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355.' Hague v. CIO, 307 U.S. 496, 526-527, 59 S.Ct. 954, 969, 83 L.Ed. 1423 (opinion of Stone, J.).
30
The three-judge court statute, including the language at issue in Swift & Co. v. Wickham, was originally enacted in 1910, 36 Stat. 557, at a time when the Judicial Code of 1911 was under active consideration.
31
When Swift & Co. was decided, § 2281 provided:
'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.' (Emphasis added.)
32
See Lynch v. Household Finance Corp., 405 U.S. 538, 540, 543, 92 S.Ct. 1113, 1115, 1117, 31 L.Ed.2d 424; Examining Board v. Flores de Otero, 426 U.S. 572, 583, 96 S.Ct. 2264, 2272, 49 L.Ed.2d 65.
33
The Act of April 9, 1866, 14 Stat. 27, the forerunner to the Fourteenth Amendment, in its first section declared all persons born in the United States to be citizens and provided that all citizens should have the same rights to make and enforce contracts, to sue, to purchase, lease, sell, or hold property, and to full and equal benefit of all laws as is enjoyed by white citizens. The Act of May 31, 1870, 16 Stat. 140, which followed the passage of the Fifteenth Amendment, was directed at enforcing the declared right of every citizen to vote in all elections without regard to race.
34
Indeed, the view that § 1 of the 1871 Act was 'merely carrying out the principles of the civil rights bill [of 1866] which have since become a part of the Constitution' may well explain why it was subject to the least debate of any section of that Act. Cong.Globe, 42d Cong., 1st Sess., 568 (1871) (remarks of Sen. Edmunds). See also id., at 429 (remarks of Rep. McHenry). Section 1 of the 1871 Act was modeled after § 2 of the 1866 Act, which provided criminal sanctions for violations of the rights declared by that Act.
35
Cong.Globe, 42d Cong., 1st Sess., 568 (1871). See also 560 F.2d, at 169.
36
Where the underlying right is based on the Constitution itself, rather than an Act of Congress, § 1343(3) obviously provides jurisdiction.
37
See H.R.Rep. No. 291, 85th Cong., 1st Sess., 10 (1957), U.S.Code Cong. & Admin.News 1957, p. 1974:
'Section 1985 of title 42, United States Code, often referred to as the Ku Klux Act, provides a civil remedy in damages to a person damaged as a result of conspiracies to deprive one of certain civil rights. The law presently is comprised of three subsections; the first establishes liability for damages against any person who conspires to interfere with an officer of the Unites States in the discharge of his duties and as a result thereof injures or deprives another of rights or privileges of a citizen of the United States; the second subsection establishes liability for damages against any person who conspires to intimidate or injure parties, witnesses, or jurors involved in any court matter or who conspires to obstruct the due process of justice in any State court made with the intent to deny to any citizen the equal protection of the laws as the result of the conspiracies for injury or deprivation of another's rights or privileges as a citizen of the United States; the third subsection establishes liability for damages against any person who conspires to deprive another of equal protections of the laws or of equal privileges and immunities under the laws, or of the right to vote in elections affecting Federal offices if the result is to injure or deprive another of rights and privileges of a citizen of the United States.
'The effect of the provisions of the proposed bill on existing law as contained in title 42, United States Code, section 1985 is not to expand the rights presently protected but merely to provide the Attorney General with the right to bring a civil action or other proper proceeding for relief to prevent acts or practices which would give rise to a cause of action under the three existing subsections.'
38
103 Cong.Rec. 12559 (1957) (remarks of Sen. Case):
'My intent in proposing the ideas of leaving in the bill section 122, renumbered as section 121, was to strengthen the so-called right to vote. The section would amend existing law so as to clarify the jurisdiction of the district courts in the entertainment of suits to 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 . . .. —
'[T]he addition of a subparagraph 4 in section 1343 is not limited by the clause 'under color of any statute, ordinance, regulation, custom, or order of any State or Territory,' to which the preceding paragraph is subject.
'So in that sense the new subparagraph 4, which would be left in Part III, is complementary to, and is perhaps somewhat broader than existing law. So it does not limit the suit to recover damages to a case in which the injury occurs under color of law.'
3
The Social Security Act
39
Cf. Gomez v. Florida State Employment Service, 417 F.2d 569, 579 (CA5 1969) (rights secured by the Social Security Act are 'rights of an essentially personal nature').
40
As to § 1343(4), see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 412 n. 1, 88 S.Ct. 2186, 2189 n. 1, 20 L.Ed.2d 1189 (Civil Rights Act of 1866); Allen v. State Board of Elections, 393 U.S. 544, 554, 89 S.Ct. 817, 825, 22 L.Ed.2d 1 (Voting Rights Act of 1965).
41
The removal statute was enacted in the Civil Rights Act of 1866 under the authority of the Thirteenth Amendment; §§ 1343(3) and (4), on the other hand, are based upon the authority of the Fourteenth Amendment which, unlike the Thirteenth Amendment, is not limited to racially based claims of inequality. As a result, while an Act of Congress must in fact deal with equal rights or civil rights to support jurisdiction under § 1343, it need not be stated only in terms of racial equality. Cf. Georgia v. Rachel, 384 U.S., at 792, 86 S.Ct., at 1790.
1
I join Mr. Justice STEVENS' opinion for the Court on the understanding that it draws no conclusions about the legislative history of 28 U.S.C. § 1343(3) beyond those necessary to support its rather narrow holding with respect to the scope of that statute. I do not necessarily agree with every observation in the Court's opinion concerning the history of the post-Civil War civil rights legislation.
2
Title 42 U.S.C. § 1983 provides: 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
3
Revised Stat. § 1979 is identical to 42 U.S.C. § 1983. For convenience, the former designation is used throughout most of this opinion.
4
Supporters in the House were equally emphatic in their assurances that no substantive changes were contained in the revision:
'I desire to premise here that [the House Committee on Revision of the Laws] felt it their bounden duty not to allow, so far as they could ascertain, any change of the law. This embodies the law as it is. The temptation, of course, was very great, where a law seemed to be imperfect, to perfect it by the alteration of words or phrases, or to make some change. But that temptation has, so far as I know and believe, been resisted. We have not attempted to change the law, in a single word or letter, so as to make a different reading or different sense. All that has been done is to strike out the obsolete parts and to condense and consolidate and bring together statutes in pari materia; so that you have here, except in so far as it is human to err, the laws of the United States under which we now live.' 2 Cong.Rec. 129 (1873) (remarks of Rep. Butler, introducing H.R. 1215).
'[T]he committee have endeavored to have this revision a perfect reflex of the existing national statutes. We felt aware that if anything was introduced by way of change into those statutes it would be impossible that the thing should ever be carried through the House. In the multitude of matters that come before Congress for consideration, if we undertake to perfect and amend the whole body of the national statutes there is an end of any expectation that the thing would ever be carried through either House of Congress, and therefore the committee have endeavored to eliminate from this everything that savors of change in the slightest degree of the existing statutes.' Ibid. (remarks of Rep. Poland).
5
Whatever value ordinarily lies in focusing exclusively on the 'plain words [of the] civil rights legislation originating in the post-Civil War days,' post, at 649, is certainly eclipsed by the need to examine carefully alterations produced by the revisers, whose congressionally mandated task was to preserve, not to change, the meaning of the federal statutes.
6
Section 16 of the 1870 Act repeated only some of the rights enumerated in § 1 of the 1866 Act, but these were granted to 'all persons within the jurisdiction of the United States,' rather than, as in the 1866 Act, to 'citizens of the United States.' For a discussion of § 17 of the 1870 Act, see Part III, infra.
7
Section 18 of the 1870 Act also re-enacted in full the 1866 Act, incorporating it by reference.
8
The final version of the Revised Statutes retains the marginal indications of the source of each section, but omits the explanatory notes. The final version contains limited cross-referencing; the Draft does not.
9
The title, chapter, and section numbers used in the 1872 Draft differ from those employed in the final version adopted by Congress. For the sake of simplicity, however, the provisions of the Draft will be discussed under the numbers ultimately assigned in the 1874 revision.
10
The marginal notations accompanying §§ 563(12) and 629(16) actually list three sources: § 1 of the 1871 Act, §§ 16 and 18 of the 1870 Act, and § 3 of the 1866 Act. As explained above, the relevant sections of the 1870 and 1871 legislation merely incorporated by reference the jurisdictional provisions originally written into § 3 of the 1866 Act. Section 3, then, was actually the sole source of both § 563(12) and § 629(16).
11
As shown above, see supra, at 629-630, and n. 10, the terms of § 3 of the 1866 Act had been relied upon by Congress to provide jurisdiction for § 1 of the 1866 Act and § 16 of the 1870 Act, appearing in the revision as §§ 1977 and 1978, as well as for § 1979. The revisers therefore understood that the text in the revision representing § 3 had to provide jurisdiction over civil actions brought to enforce all of the rights covered by these three civil rights provisions.
Recognizing this, the revisers in their note first justify the language in § 629(16) extending jurisdiction only over suits brought to 'redress the deprivation' of certain rights. Section 3 of the 1866 Act had referred to actions 'affecting persons' who had been denied certain rights. The revisers reasoned that Congress could not have meant the latter phrase literally, as this would have created concurrent circuit and district court jurisdiction over any action whatsoever—'for the recovery of lands, or on promissory notes, . . . or for the infringement of patent or copyrights,' 1 Draft 361—by anyone who coincidentally had been denied his civil rights. The revisers therefore concluded that Congress meant to provide jurisdiction only over suits to redress the deprivation of civil rights.
The revisers sought support for this conclusion from the wording of § 1 of the 1871 Act which, although it had incorporated by reference the 'affecting persons who are denied' jurisdictional language of § 3 of the 1866 Act, provided for civil liability against anyone who subjected another to the 'deprivation' of rights secured by the Constitution. Accordingly, the revisers inferred Congress' wish that victims of civil rights violations should have access to the federal courts only to redress those violations, not to pursue all other kinds of litigation. It was at this point in their argument that the revisers made the statement quoted and discussed in the text below.
12
The statement that the provisions of § 16 of the 1870 Act are 'indefinite' apparently is a reference to the fact that § 16 was less definite than § 1 of the 1871 Act in demonstrating a congressional intent to limit federal jurisdiction to the redress of actual deprivations of federal rights. See n. 11, supra. Section 1 contained the definite phrase 'deprivation of any rights . . . secured by the Constitution' (emphasis added), while § 16 merely stated that persons 'shall have' certain rights.
13
It is unclear why the revisers said that 'any law providing for equal rights' is a reference to § 16 of the 1870 Civil Rights Act rather than to its predecessor, § 1 of the 1866 Act, or to civil rights Acts generally. The revisers' immediate focus on § 16 is perhaps explained by their apparent conclusion that that provision had superseded § 1 of the 1866 Act with respect to those rights mentioned in both places. As noted supra, at 628, and n. 6, § 16 introduced some changes in wording when it restated certain of the § 1 rights, and the § 16 version appeared in the revision as § 1977. Moreover, the marginal note to § 1977 lists only § 16 as its source.
The revisers did not believe that § 1 of the 1866 Act had been made entirely obsolete by § 16 of the 1870 Act, however, for § 1978 in the Draft consists of an enumeration of the § 1 rights not repeated in § 16: those dealing with the right to hold, purchase, and convey property. Accurately reflecting the text of § 1, these rights are extended only to 'citizens of the United States.' See n. 6, supra. The marginal note identifies § 1 as the source of § 1978.
Whatever their reasons for referring only to § 16 of the 1870 Act as an illustration of the rights § 1979 was thought to protect against infringement by those acting under color of state law, it is evident from the context of their discussion that the revisers were concerned generally with civil rights legislation enumerating particular rights as authorized by the recently adopted Fourteenth Amendment, and perhaps by the Thirteenth and Fifteenth as well.
14
This demonstrates that Mr. Justice STEVENS' opinion for the Court in these cases clearly is correct in its reading of the phrase 'any Act of Congress providing for equal rights' in § 1343(3). These words were chosen carefully to refer to legislation providing for equality in the enjoyment of civil rights and should not be construed more broadly than their plain meaning permits.
The revisers' reference to 'every right secured by a law authorized by the Constitution' does not in any way indicate their belief that § 629(16), by its reference to 'any law providing for equal rights,' would extend the courts' jurisdiction to every suit involving statutory rights of every kind. On the contrary, the revisers' note merely reflects their concern that, in general, courts would not interpret 'rights secured by the Constitution' to extend to any federal statutory right. If this were the case, then even those rights originally created in the Civil Rights Acts rights which had been understood by Congress, when drafting § 1 of the 1871 Act, to be 'constitutional rights' because of their unique relationship with § 1 of the Fourteenth Amendment—would not have been within the scope of §§ 1979, 629(16), and 563(12), absent the added reference to statutory law.
15
See Note, Federal Jurisdiction Over Challenges to State Welfare Programs, 72 Colum.L. Rev. 1404, 1421-1423 (1972). The various subdivisions of the revision were assigned to different individuals for drafting. See Report of the Commissioners, S.Misc.Doc.No.3, 42d Cong., 2d Sess., 1-2 (1871). It, therefore, is not surprising that different language should be used to express a single idea in statutes appearing in different parts of the revision.
In his separate opinion, Mr. Justice WHITE states that the Revised Statutes in other instances 'provided different circuit and district court jurisdiction for causes which, prior to the revision, could be heard in either court.' Post, at 669 n. 46. Whether or not the differences between district and circuit court jurisdiction to which he adverts were intended by the revisers, the issue here is what the evidence reveals regarding this particular difference between §§ 563(12) and 629(16). As I have shown, the history indicates that these two statutes were intended to be identical in scope.
16
Accord, Note, 72 Colum.L.Rev., supra n. 15, at 1421-1423.
17
In the final version of the revision, both § 563(12) and § 629(16) contain an explicit cross-reference to § 1979. In addition, the marginal notations in both the Draft and the final version of all three sections indicate the common origin discussed above. See supra, at 629-630, and n. 10.
18
In Examining Board v. Flores de Otero, the Court concluded that the addition by the revisers of the words 'or Territory' to § 1979, giving that statute application beyond the boundaries of the States of the Union, reflected the intent of Congress in light of such explicit evidence as Rev.Stat. § 1891, which provided: 'The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect . . . in every Territory hereafter organized as elsewhere within the United States.' Despite the fact that no reference to Territories of the United States was added to § 563(12) or § 629(16), the Court concluded that these provisions were intended to be identical in scope with § 1979. (The Court's opinion in Flores de Otero discusses these statutes mostly under their current section numbers, § 1983 and § 1343(3).)
19
Although many of the commentators who have grappled with the problem of reconciling or explaining the differences in the language of §§ 563(12), 629(16), and 1979 argue, largely on the basis of their view of judicial policy, that the plain language of § 629(16) should be ignored in favor of the apparently broader sweep of § 1979, they do not seriously contend that the two may differ in scope. E. g., Note, The Propriety of Granting a Federal Hearing for Statutorily Based Actions Under the Reconstruction-Era Civil Rights Acts: Blue v. Craig, 43 Geo.Wash.L.Rev. 1343, 1371-1373 (1975); Note, 72 Colum.L.Rev., supra n. 15, at 1425-1426; Herzer, Federal Jurisdiction Over Statutorily-Based Welfare Claims, 6 Harv.Civ. Rights-Civ.Lib.L.Rev. 1, 7-9 (1970); Cover, Establishing Federal Jurisdiction in Actions Brought to Vindicate Statutory (Federal) Rights When No Violations of Constitutional Rights Are Alleged, 2 Clearinghouse Rev., No. 16, pp. 5, 24-25 (Feb.-Mar. 1969). But see Note, The Proper Scope of the Civil Rights Acts, 66 Harv.L.Rev. 1285, 1292-1293 (1953). Thus, under the rationale adopted by most of the commentators that support his position, Mr. Justice WHITE's concession that § 1343(3) must be read narrowly is irreconcilable with his assertion regarding the scope of § 1983.
20
Once it is understood that 'and laws' in § 1979 is equivalent in meaning to 'any law providing for equal rights' in § 629(16), it remains to determine precisely what is meant by an 'equal rights' law. That problem is not presented by these cases. There is no need here to go beyond the Court's decision that the Social Security Act is not such a law.
21
The absence of any comment by the revisers on § 1979 is especially significant in light of the fact that their general practice apparently was to add an explanatory note to the 1872 Draft whenever they believed their proposed language might be construed as effecting a change in existing law. See 2 Cong.Rec. 648 (1874) (remarks of Rep. Hoar).
22
The Senate did not give the bill the degree of attention it enjoyed in the House. After the latter had passed the bill, the Senate adopted it without amendment after only a very brief discussion. See 2 Cong.Rec. 4284-4286 (1874).
23
The implication in Mr. Justice WHITE's opinion that his position is supported by Representative Lawrence's comments on this occasion is simply contradicted by the record. See post, at 664-665, and n. 40. Given the setting in which the comments were made, Congress' awareness that the language of § 1979 had been altered indicates its understanding that no change in substance had been effected. Representative Lawrence's statement that the final text of Rev. Stat. § 5510, as opposed to the Draft version of that statute, was broad enough 'to include all [the rights] covered' by § 1 of the 1871 Act, 2 Cong.Rec. 828 (1874), does no more than confirm the view that §§ 5510 and 1979 were intended to be coextensive in scope. See infra, at 641-644. Nor does the observation that § 5510 might 'operate differently . . . in a very few cases' from its antecedent provisions lend support to Mr. Justice WHITE's view. See n. 28, infra.
24
Without offering his own interpretation of the legislative history, Mr. Justice WHITE now views that history as replete with 'ambiguities, contradictions, and uncertainties.' Post, at 669. These confusions, however, are for the most part not inherent in the legislative history. With all deference, it seems to me they are largely the product of his opinion concurring in the judgment.
For example, nothing in the legislative history of § 1983 or § 1343(3), or in my analysis, implies that the 1866 Act 'provided the outer limits of the federal civil rights effort in the post-Civil War years.' Post, at 663. Indeed, provisions of both the 1870 and 1871 Acts go well beyond the 1866 law. Nor are the four 'technical problems,' see post, at 667-668, suggested by Mr. Justice WHITE apposite: (i) The revisers' statement that the rights secured by § 16 of the 1870 Act were to be protected against adverse state action by § 1979 does not require the conclusion that § 16 was the exclusive source of such rights. See n. 13, supra. (ii) Nor does it follow from the revisers' prediction that the courts would not construe rights 'secured by the Constitution' to include rights 'secured by a law authorized by the Constitution' that they thought that every federal statute would be encompassed by the phrase 'any law providing for equal rights.' To the contrary, they recognized that the unique relationship between the Constitution and the recently enacted civil rights statutes made it quite proper to refer to the latter as constitutional rights. See supra, at 632-633, and n. 14. (iii) The language in §§ 563(12) and 1979 could indeed have been chosen more carefully. See supra, at 637. But the variations between these statutes are explained by the manner in which the revision was undertaken, see n. 15, supra, and do not preclude discovery of their precise meaning. (iv) If the revisers erred in limiting the jurisdictional provisions in the revision derived from § 3 of the 1866 Act to actions brought under color of state law, that error is quite independent of and does not detract from their statement explaining the reference in § 629(16) to equal rights laws. As I have shown, this reflects the correct interpretation of 'and laws' in § 1983.
To be sure, no reading of history, including my understanding of the legislative history of § 1983, is beyond criticism. But any difficulties identified by Mr. Justice WHITE are inconsequential when compared with his disregard for Congress' unequivocal wish not to alter the content of federal statutory law. See Part I, supra. The arguments advanced in this opinion take full account of that legislative intent, while Mr. Justice WHITE's opinion largely assumes the very fact to be proved: that § 1983 'was . . . expanded [in the revision] to encompass all statutory . . . rights.' Post, at 654. The direct evidence of Congress' intent with respect to the alterations made in the language of § 1983 flies directly in the face of this assumption. See supra, at 638-639, and n. 23.
While none of us is invariably consistent, Mr. Justice WHITE has not always disparaged the history of the post-Civil War civil rights legislation. In prior cases he has insisted that the 19th-century Civil Rights Acts should be read narrowly when such a construction is required by their legislative history. See Runyon v. McCrary, 427 U.S. 160, 192, 96 S.Ct. 2586, 2605, 49 L.Ed.2d 415 (1976) (WHITE, J., dissenting); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 449, 88 S.Ct. 2186, 2208, 20 L.Ed.2d 1189 (1968) (Harlan, J., joined by WHITE, J., dissenting).
25
The rights enumerated in § 16, of course, were taken directly from § 1 of the 1866 Act. See supra, at 628.
26
The conduct proscribed included conspiracy, going 'in disguise upon the public highway,' and going 'upon the premises of another.'
27
In commenting on § 5510 during one of the special evening sessions of the House, see supra, at 638-639, Representative Lawrence attributed the final version of this statute to Mr. Durant. 2 Cong.Rec. 828 (1874).
28
Although Representative Lawrence hypothesized that § 5510 'may operate differently from the original three sections in a very few cases,' 2 Cong.Rec. 828 (1874), this is far from a suggestion that this provision was to have the breadth attributed to it by Mr. Justice WHITE. Indeed, a perusal of the House debates on the revision makes clear that any such intent would have been thoroughly inconsistent with the very purpose for which the House was then in session. See supra, at 639.
29
Mr. Justice WHITE's assertion that § 241 encompasses the same rights as § 242 is based in par upon dicta in opinions that have merely assumed this fact without reasoned consideration of the legislative history. See United States v. Price, 383 U.S. 787, 797, 86 S.Ct. 1152, 1158, 16 L.Ed.2d 267 (1966); Screws v. United States, 325 U.S. 91, 119, 65 S.Ct. 1031, 1044, 89 L.Ed. 1495 (1945) (Rutledge, J., concurring in result). The proper scope of § 242 is not an issue in this case, except as circumstantial evidence of the meaning of § 1983. In light of the discussion above, there clearly are substantial reasons to doubt the correctness of the dicta concerning § 242 upon which Mr. Justice WHITE relies.
30
The relevant text in 18 U.S.C. § 242 now reads: 'secured . . . by the Constitution or laws.' (Emphasis added.)
1
Title 28 U.S.C. § 1343(3) provides:
'The district court shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
* * * * *
'(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.'
2
Title 42 U.S.C. § 1983 provides:
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
3
My three dissenting Brethren conclude that § 1983 is the 'equal rights' law referred to in § 1343(3). But this construction makes superfluous § 1343(3)'s reference to constitutional claims, and renders unnecessary the nearly precise repetition in § 1343(3) of the recital in § 1983 specifying suits brought against action 'under color of any statute, ordinance, regulation, custom, or usage.' Further, the legislative evolution of § 1343(3) cannot support the construction urged by the dissent. See n. 44, infra.
4
This provision read:
'[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 within the jurisdiction of the United States 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; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled 'An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication'; and the other remedial laws of the United States which are in their nature applicable in such cases.' 17 Stat. 13.
5
The first section of the 1871 Act provided that the rules governing 'rights of appeal' and other procedural matters would be those provided in § 3 of the Civil Rights Act of 1866, 14 Stat. 27. See n. 4, supra. Section 3 of the 1866 Act required, inter alia, the jurisdiction '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.'
6
Nor can the significance of this controversy be gainsaid. If § 1983 does not encompass the claims in these cases, then not only is § 1343 jurisdiction defeated, but, unless some other authority for bringing suit were ascertained, general federal-question jurisdiction under 28 U.S.C. § 1331 also would not be available—even were the requisite amount in controversy because a claim under § 1983 would not be stated. Persons alleging inconsistency between state welfare practices and federal statutory requirements, or asserting state infringement of any federal statutory entitlement unrelated to equal or civil rights, would be precluded from having such claims heard in federal court unless authorized to do so by the statute granting the entitlement.
In 1978, the House of Representatives passed legislation that would remove the amount-in-controversy requirement in all federal question suits under § 1331. H.R. 9622, 95th Cong., 1st Sess., (1978).
7
Plaintiff recipients in both cases alleged a cause of action under § 1983, and in each case the District Court refused the state officials' motion to dismiss for failure to state a claim upon which relief could be granted. Both District Courts further held that there was jurisdiction over the § 1983 cause of action under 28 U.S.C. § 1343. Houston Welfare Rights Organization v. Vowell, 391 F.Supp. 223 (S.D.Tex.1975); 418 F.Supp. 566 (N.J.1976). On appeal, the Fifth Circuit, in No. 77-719, affirmed both these findings below, as well as the holding for recipients on the merits of the claim under the Social Security Act. Houston Welfare Rights Organization v. Vowell, 555 F.2d 1219 (1977). In No. 77-5324, the Third Circuit assumed for purposes of addressing the § 1343 issue that a cause of action was stated under § 1983, and went on to direct dismissal for want of jurisdiction. 560 F.2d 160 (1977). Respondents in No. 77-5324 continue to press the position that recipients have not stated a § 1983 cause of action.
8
See ante, at 616 (§ 1983 and § 1343(3), 'coverage is, or at least originally was, coextensive'). Previous cases have occasionally referred to § 1343(3) as the jurisdictional counterpart of § 1983, see Examining Board v. Flores de Otero, 426 U.S. 572, 583, 96 S.Ct. 2264, 2272, 49 L.Ed.2d 65 (1976); Lynch v. Household Finance Corp., 405 U.S. 538, 540, 92 S.Ct. 1113, 1115, 31 L.Ed.2d 424 (1972).
9
Section 2 of the Civil Rights Act of 1866 provided:
'[A]ny person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is proscribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.' 14 Stat. 27.
10
See In re Turner, 24 Fed.Cas. 337, No. 14,247 (CCMd.1867); United States v. Rhodes, 27 Fed.Cas. 785, No. 16,151 (CC Ky.1866).
11
See, e. g., United States v. Hall, 26 Fed.Cas. 79, No. 15,282 (CCSD.Ala.1871) (right of peaceable assembly and free speech within § 6 of Civil Rights Act of 1870). See generally United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); United States v. Mosley, 238 U.S. 383, 387-388, 35 S.Ct. 904, 905-906, 59 L.Ed. 1355 (1915).
12
During the debate on the Civil Rights Act of 1871, Representative Shellabarger explained that the 'model' for the provision was § 2 of the 1866 Act, which 'provides a criminal proceeding in identically the same case as this one provides a civil remedy,' Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871). However, Representative Shellabarger also stressed the broadened scope of § 1 of the 1871 Act:
'[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.' Ibid. See also id., at App. 216-217 (Sen. Thurman):
'This section relates wholly to civil suits. . . . Its whole effect is to give to the Federal Judiciary that which does not now belong to 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 wrongdoer in the Federal courts, and that without any limit whatsoever as to the amount in controversy.'
13
The remaining portions of the 1871 Act were directed to suppressing the terror of the Ku Klux Klan. Section 2, which did not have a color-of-law requirement, defined the crimes, inter alia, of conspiracy to prevent federal officials from enforcing the laws of the United States, and of conspiracy to deprive 'any person or any class of persons of the equal protection of the laws.' Jurisdiction was to be in federal district or circuit courts. In addition, § 2 provided that persons injured in violation of such conspiracies 'or deprived of having and exercising any right or privilege of a citizen of the United States . . . may have and maintain an action for the recovery of damages . . ., such action to be prosecuted in the proper district or circuit court of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts under the provisions of' § 3 of the 1866 Act.
14
The recodification was not generally undertaken for the purpose of altering the substantive provisions of federal law. See Revision of Statutes Act of 1874, § 2, 18 Stat. 113; Revision of Statutes Act of 1866, § 1, 14 Stat. 74.
15
The former guaranteed to all persons 'the same right' to contract, to sue, etc., 'as is enjoyed by white citizens,' and to be subject to like penalties and taxes. This provision, with minor word changes, is now 42 U.S.C.§ 1981. Revised Statutes § 1978 guaranteed to all citizens 'the same right . . . as is enjoyed by white citizens' to inherit, hold, and convey real and personal property. This section was the precursor of 42 U.S.C. § 1982.
16
See 1 C. Bates, Federal Procedure at Law 473 (1908) ("The original judiciary act, and many other federal statutes,, were badly mutilated in the revision. . .").
17
Revised Statutes § 1979 read precisely as does 42 U.S.C. § 1983, see n. 2, supra.
18
Section 563(12) of the Revised Statutes provided jurisdiction for actions alleging deprivation under color of state law of "any right, privilege, or immunity secured by the Constitution of the United States, or of any right secured by any law of the United States to persons within the jurisdiction thereof."
19
Section 629(16) of the Revised Statutes provided jurisdiction for suits to redress the deprivation under color of state law of "any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States."
20
See Revised Statutes of 1874, §§ 563(1), 629(20).
21
There is remarkably little contemporaneous legislative comment concerning the grant of federal-question jurisdiction in 1875. As originally passed by the House of Representatives, the legislation conformed to its title, "an act regulating the removal of causes from State courts to the circuit courts of the United States," and dealt only with cases involving diversity of citizenship. 2 Cong.Rec. 4301-4304 (1874). However, as it emerged from the Senate Judiciary Committee, the bill provided both for removal and for original jurisdiction of the circuit courts of federal-question cases. See id., at 4979. After heated debate concerning primarily the broad venue provisions in the legislation, the Senate enacted the bill, and directed that its title be amended to read:
"An act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes." Id., at 4979-4988.
In conference, the House agreed to the Senate's changes in the original legislation. See also F. Frankfurter & J. Landis, The Business of the Supreme Court 65-68, and n. 34 (1928).
22
The grant of general federal-question jurisdiction, with its $500 amount-in-controversy requirement, did not diminish the grants of jurisdiction not subject to this requirement. Lynch v. Household Finance Corp., 405 U.S., at 547-549, 92 S.Ct., at 1119-1120.
23
§ 24(1), Judiciary Act of 1911, 36 Stat. 1091.
24
Ibid.
25
§ 24(2).
26
See, e. g., § 24(3) (admiralty jurisdiction); § 24(16) (jurisdiction over certain suits involving national banks); § 24(22) (jurisdiction over suits involving, inter alia, labor laws).
27
Until Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), there were few cases in this Court explicitly dealing with the scope of 42 U.S.C. § 1983, and those decisions did not raise the issue of the meaning of the 'and laws' term in the statute. Some of the early cases were dismissed for failure to allege a deprivation under 'color of law.' See, e. g., Huntington v. City
of New York, 193 U.S. 441, 24 S.Ct. 505, 48 L.Ed. 741 (1904); Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737 (1904). The concept of state action relied upon in these opinions was rejected in Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510 (1913). See also Davine v. Los Angeles, 202 U.S. 313, 26 S.Ct. 652, 50 L.Ed. 1046 (1906); Chrystal Springs Land & Water Co. v. Los Angeles, 177 U.S. 169, 20 S.Ct. 573, 44 L.Ed. 720 (1900) (claim that city is taking water in violation of treaty with Mexico and federal statute; held: no federal question is raised because the issue involves right under state or general law). Other cases were dismissed because the right alleged to have been denied was not directly 'secured' by the Constitution. See, e. g., Carter v. Greenhow, 114 U.S. 317, 5 S.Ct. 928, 29 L.Ed. 202 (1885), holding that an action for damages against a state tax collector did not state a cause of action under Rev. Stat. § 1979 because the right to pay taxes in coupons arose under state, rather than federal, law; and Bowman v. Chicago & Northwestern R. Co., 115 U.S. 611, 6 S.Ct. 192, 29 L.Ed. 502 (1885), dismissing an appeal because the claim that a railroad had unlawfully refused to carry goods alleged denial of a right secured not by the Constitution, but if at all by a 'principle of general law' governing the obligations of common carriers, id., at 615, 6 § .Ct., at 193. In Holt v. Indiana Mfg. Co., 176 U.S. 68, 72, 20 S.Ct. 272, 273, 44 L.Ed. 374 (1900), the Court held that a claim alleging that a tax on federal patent rights violated the Contracts, Due Process, and Equal Protection Clauses was not encompassed by Rev.Stat. §§ 1979 and 629(16), or § 563(12), because those provisions dealt only with 'civil rights' claims, whether asserted under the Federal Constitution or federal statutes. Of course, this limited view of the nature of the constitutional rights encompassed by §§ 1983 and 1343(3) has not been accepted in later cases, see n. 43, infra. Finally, Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909 (1903), although holding that a federal court had no equitable power under Rev.Stat. § 1979 to order enrollment of blacks on a state voting list because, inter alia, voting involved 'political rights,' 189 U.S., at 487, 23 S.Ct., at 642, did state that the claim that the right to vote had been denied was within § 1979, 189 U.S. at 485-486, 23 S.Ct., at 641.
28
See also Burns v. Alcala, 420 U.S. 575, 577 n. 1, 95 S.Ct. 1180, 1182 n. 1, 43 L.Ed.2d 469 (1975); Rosado v. Wyman, 397 U.S. 397, 404 n. 4, 90 S.Ct. 1207, 1213 n. 4, 25 L.Ed.2d 442 (1970); King v. Smith, 392 U.S. 309, 312 n. 3, 88 S.Ct. 2128, 2130 n. 3, 20 L.Ed.2d 1118 (1968).
29
'[T]here can be no doubt that § 1 of the Civil Rights Act [of 1871] was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights.'
30
'[Section 1983] in the Revised Statutes of 1874 was enlarged to provide protection for rights, privileges, or immunities secured by federal law as well [as those secured by the Constitution].'
31
'[T]he provision in the Revised Statutes was enlarged to provide protection for rights, privileges, or immunities secured by federal law as well [as those secured by the Constitution].'
32
'The right of action given by [§ 1 of the Civil Rights Act of 1871] was later . . . extended to include rights, privileges and immunities secured by the laws of the United States as well as by the Constitution.'
33
'The Court does not question the continuing validity of Hagans. Indeed, the Court's remand in No. 77-719 leaves open the opportunity for respondents to seek to amend their complaint to allege, if they can, a nonfrivolous constitutional claim. Their statutory claim, on which suit is authorized by § 1983, would then qualify as a pendent claim within the jurisdiction of the District Court, as both Rosado and Hagans recognize.
34
Title 18 U.S.C. §§ 241 and 242 encompass the same rights. See United States v. Price, 383 U.S. 787, 797, 86 S.Ct. 1152, 1158, 16 L.Ed.2d 267 (1966); United States v. Guest, 383 U.S., at 753, 86 S.Ct., at 1175; Screws v. United States, 325 U.S. 91, 119, 65 S.Ct. 1031, 1044, 89 L.Ed. 1495 (1945) ('There are, however, no differences in the basic rights guarded [by §§ 241 and 242]') (opinion of Rutledge, J.).
35
Another early case, United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876), concerned convictions under what is now § 241 of persons accused of disrupting a meeting of blacks, and proceeding to lynch two of those who had been at the meeting. The Court held that because the right of peaceable assembly was an attribute of national citizenship, 92 U.S., at 551, rather than a right granted initially by the Constitution, deprivation of this right was not proscribed by the 'Constitution or laws' language of § 6 of the Civil Rights Act of 1870.
36
Three years later, the Court concluded that discrimination against Chinese in contravention of a treaty between the United States and China would be within the proscription of § 241 but for the language in that statute limiting its application to denials of the rights of 'citizens.' Baldwin v. Franks, 120 U.S. 678, 690-692, 7 S.Ct. 656, 661-662, 32 L.Ed. 766 (1887); see also id., at 694, 7 S.Ct., at 663 (Harlan, J., dissenting).
37
Monroe v. Pape, 365 U.S. 167, 185, 81 S.Ct. 473, 483, 5 L.Ed.2d 492 (1861).
38
Specific intent is required for conviction under either § 241 or § 242. United States v. Guest, supra, 383 U.S., at 753-754, 86 S.Ct., at 1175; Screws v. United States, supra. The word 'willfully' was added to § 242 in 1909, 35 Stat. 1092, but such language has never been in § 1983. See Monroe v. Pape, supra, 365 U.S., at 206, 81 S.Ct., at 494 (opinion of Frankfurter, J.).
39
The marginal notation for § 563(12) states: 'Suits to redress the deprivation of rights secured by the Constitution and laws to persons within jurisdiction of United States.' Cross-cites are to § 1 of the 1871 Act, §§ 16, 18 of the 1870 Act, and § 3 of the 1866 Act; § 1 of the 1871 Act had referred to § 3 of the 1866 Act for the rules governing appeal and other matters, see n. 5, supra. In addition, there is a bracketed citation after the text of § 563(12)—and after § 629(16)—as follows: '[See §§ 1977, 1979].' Rev.Stat. 95, 111 (1874).
The marginal notation for § 1979 states: 'Civil action for deprivation of rights.' Section 1 of the 1871 Act is cross-cited, and there is a bracketed citation to § 563 and § 629. Rev.Stat. 348 (1874).
The marginal notation for § 5510 states: 'Depriving citizens of civil rights under color of State laws.' The cross-cite is to § 17 of the 1870 Act, and there is a bracketed citation to § 1979. Rev.Stat. 1074 (1874).
40
During the discussion of the Revised Statutes in Congress, Representative Lawrence read the relevant provisions of the post-Civil War Acts and then read § 1979. 2 Cong.Rec. 828-829 (1874). He went on to point out that whereas the version of § 5510 eventually enacted by Congress referred to rights secured by the 'Constitution and laws,' the revisers' initial version (that in the 1872 Draft) had referred only 'to the deprivation of any right secured or protected by section—of the title 'civil rights." Representative Lawrence explained that this initial version 'certainly is not sufficiently comprehensive to include all covered by the first section of the 'Ku-Klux act' of April 20, 1871, and the omission is not elsewhere supplied . . ..' The foregoing demonstrates that the commensurate scope of §§ 1979 and 5510 was purposeful; further, apparently believing that § 1 of the 1871 Act, as well as § 2 of the 1866 Act and § 17 of the 1870 Act, defined crimes, Representative Lawrence noted: '[I]t is possible that the new consolidated section [§ 5510] may operate differently from the three original sections in a very few cases. But the change, if any, cannot be objectionable, but is valuable as securing uniformity.' 2 Cong.Rec. 828 (1874).
41
See Rev.Stat. 111 (1874).
42
The entire paragraph which for Mr. Justice POWELL provides the key to the revisers' view of the cause of action in § 1979 reads:
'It may have been the intention of Congress to provide, by [§ 1 of the 1871 Act], for all the cases of deprivations mentioned in the previous act of 1870, and thus actually to supersede the indefinite provision contained in that act. But as it might perhaps be held that only such rights as are specifically secured by the Constitution, and not every right secured by a law authorized by the Constitution, were here intended, it is deemed safer to add a reference to the civil-rights act.' 1 Draft 362.
43
See Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).
Unless he is also prepared to limit the reach of constitutional claims brought under § 1983, my Brother POWELL's construction of that statute would not allow claims based on federal statutory law to be heard unless they involved a right of equality, but claims based on the Constitution could involve alleged violations of not only the Equal Protection Clause, or even other provisions of the Fourteenth Amendment, but also any provision of the Constitution. It is hard to believe that Congress intended such asymmetry.
44
My three dissenting Brethren, concluding that § 1983 is the 'equal rights' law referred to in § 1343(3), do not attempt to explain the broader provision in § 563(12) of the Revised Statutes. Moreover, the revisers who added the equal rights language to the circuit court jurisdictional provision did not have the expanded version of the cause of action, with its 'and laws' language, before them. Thus, even if it might be considered that the term 'providing for equal rights' was intended to be a reference to § 1 of the 1871 Act, that section encompassed only constitutional claims. Given this legislative history, the approach of the dissent, requires, at bottom, that the word 'Constitution' as used in the 1871 Act encompass federal statutory claims. But if this were so, there would be no need to resort to the circuitous construction whereby § 1983 is the 'equal rights' law of § 1343(3).
45
In addition, the Revised Statutes added a precondition to civil rights jurisdiction that was not included in other jurisdictional provisions: that the suit must be 'authorized by law.' See §§ 563(12), 629(16). See also §§ 563(11), 629(17), providing jurisdiction for civil suits 'authorized by law' against conspiracies in violation of § 2 of the 1871 Act, see n. 13, supra, which section became, with modification, § 1980 of the Revised Statutes, and is the precursor of 42 U.S.C. § 1985. The 'authorized by law' requirement, which remains in 28 U.S.C. § 1343, appears to be another effort to preclude suits merely 'affecting' persons denied rights, because no cause of action was provided for such suits.
Clearly, §§ 1979 and 1980 were statutes 'authorizing' suits. In addition, it is evident that the revisers considered § 1 of the 1866 Act (and § 16 of the 1870 Act) directly to authorize suits redressing the deprivation of rights guaranteed thereunder, for the bracketed citations after the jurisdictional provisions, §§ 563(12) and 629(16), are to § 1977 as well as to § 1979, see n. 39, supra. This further supports the proposition that § 1 of the 1871 Act did not merely authorize civil suits to enforce the guarantees of the earlier Civil Rights Acts, see supra, at 663-664.
46
It should also be noted that this was not the only instance in which the Revised Statutes of 1874 provided different circuit and district court jurisdiction for causes which, prior to the revision, could be heard in either court. The removal provision, § 641 of the Revised Statutes, provided for removal from a state court only to a circuit court even though the provision upon which § 641 was based, § 3 of the 1866 Act, provided for both district and circuit court jurisdiction. Congress also failed to provide for postjudgment removal in § 641, although such removal had been authorized under § 3 of the 1866 Act. See Georgia v. Rachel, 384 U.S. 780, 795, 86 S.Ct. 1783, 1792, 16 L.Ed.2d 925 (1966).
47
The legislation enacting the 1911 recodification provided that 'the laws relating to the judiciary be, and they hereby are, codified, revised, and amended . . . to read as follows . . ..' 36 Stat. 1087.
48
See also Note, Federal Jurisdiction Over Challenges to State Welfare Programs, 72 Colum.L.Rev. 1404, 1423 (1972) ('Although the drafters of the 1911 Judicial Code may not have been particularly troubled by the substantive difference between sections 563 and 629, it seems unlikely that their choice of the circuit court language was inadvertent or arbitrary').
49
See n. 6, supra.
50
I also agree with the Court that 28 U.S.C. § 1343(4) does not provide a basis for jurisdiction over the claims in these cases. Recognizing significant Court of Appeals authority to the contrary, see, e. g., Andrews v. Maher, 525 F.2d 113 (CA2 1975); Randall v. Goldmark, 495 F.2d 356 (CA1 1974); Aguayo v. Richardson, 473 F.2d 1090 (CA2 1973), cert. denied sub nom. Aguayo v. Weinberger, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974), recipients have not contended that the welfare rights here at stake are 'civil rights' within the meaning of that statute. However, they urge that even if § 1983 cannot be said to 'provide' for equal rights within the meaning of § 1343(3), this cause of action does operate to 'protect' civil rights—by authorizing redress for their deprivation—within the meaning of § 1343(4). Assuming, arguendo, the validity of this distinction, the cognizance of these claims under § 1983 is nonetheless insufficient to confer § 1343(4) jurisdiction. To be sure, § 1983 actions are often brought to vindicate civil rights, and thus that section may loosely be characterized as a civil rights statute. However, under the view of that statute expressed in this opinion, the § 1983 cause of action is not always a civil rights cause of action, for it is appropriately invoked to vindicate any federal right against deprivation under color of state law. Indeed, as noted, recipients recognize that in the cases at hand, § 1983 is not being used to vindicate civil rights within the meaning of § 1343(4). Therefore, in essence, recipients would have the Court transform statutory claims for welfare assistance into claims seeking 'protection of civil rights' on the theory that such claims are encompassed by a statutory cause of action that in other cases is invoked to protect civil rights. Such logic is hardly compelling. The clear import of § 1343(4) is to provide federal jurisdiction for civil rights claims, and no amount of bootstrapping can transform these claims for welfare assistance into civil rights claims.
*
Mr. Justice BRENNAN and Mr. Justice MARSHALL do not join footnote 2.
1
Accordingly, I do not reach the question whether jurisdiction may also exist by reason of § 1343(4), or the Supremacy Clause argument. I do agree with the Court that the Social Security Act itself is not a statute securing 'equal rights' within § 1343(3) or 'civil rights' within § 1343(4). Moreover, since the Court does not reach the merits in either of these cases, I see no need to discuss them, except to note that the result in No. 77-5324 is clearly controlled by Quern v. Mandley, 436 U.S. 725, 98 S.Ct. 2068, 56 L.Ed.2d 658.
2
Mr. Justice Black, joined by THE CHIEF JUSTICE, argued in dissent in Rosado v. Wyman, 397 U.S. 397, 430, 90 S.Ct. 1207, 1227, 25 L.Ed.2d 442, that the plaintiff's claims should not be cognizable in a federal court. They argued that primary jurisdiction to consider whether state law comported with the Social Security Act should rest with the Department of Health, Education, and Welfare. The dissenting opinion did not suggest, however, that, apart from considerations of primary jurisdiction, no cause of action existed under § 1983.
Although the Court rejected the dissent's primary-jurisdiction argument for cases brought under the Social Security Act, a similar doctrine may restrict § 1983 suits brought for violations of other federal statutes. When a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directly under § 1983. For example, a suit alleging that a State has violated Title VII of the Civil Rights Act of 1964 must comply with the procedural requirements of that Act, even though such a suit falls within the language of § 1983.
| 89
|
441 U.S. 488
99 S.Ct. 1842
60 L.Ed.2d 420
FORD MOTOR COMPANY, etc., Petitioner,v.NATIONAL LABOR RELATIONS BOARD et al.
No. 77-1806.
Argued Feb. 28, 1979.
Decided May 14, 1979.
Syllabus
Petitioner provides its employees with in-plant cafeteria and vending machine services. The services are managed by an independent caterer, but petitioner has the right to review and approve the quality, quantity, and prices of the food served. When petitioner notified respondent union, which represents the employees, that the cafeteria and vending machine prices were to be increased, the union requested bargaining over the prices and services. Petitioner refused to bargain, and the union then filed an unfair labor practice charge with the National Labor Relations Board (NLRB), alleging a refusal to bargain contrary to § 8(a)(5) of the National Labor Relations Act (NLRA). The duty of management and unions to bargain under § 8(a)(5) is defined by § 8(d) as the obligation to meet at reasonable times and confer in good faith with respect to wages, hours, and "other terms and conditions of employment." Taking its consistent view that in-plant food prices and services are "other terms and conditions of employment," the NLRB sustained the charge and ordered petitioner to bargain. The Court of Appeals enforced the order.
Held: In-plant cafeteria and vending machine food and beverage prices and services are "terms and conditions of employment" subject to mandatory collective bargaining under §§ 8(a)(5) and 8(d) of the NLRA. Pp. 494-503.
(a) Since Congress has assigned to the NLRB the primary task of marking out the scope of the statutory language and duty to bargain, and since the NRLB has special expertise in classifying bargaining subjects as "terms and conditions of employment," its judgment as to what is a mandatory bargaining subject is entitled to considerable deference. Pp. 494-496.
(b) The NLRB's judgment is subject to judicial review, but if its construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute. Here, the NLRB's view is not an unreasonable or unprincipled construction of the statute and should be accepted and enforced. Pp. 497-498. (c) Including within § 8(d) the prices of in-plant-supplied food and beverages serves the ends of the NLRA by funneling an area of common dispute between employers and employees into collective bargaining. Pp. 498-500.
(d) In-plant food prices and services are an aspect of the relationship between petitioner and its employees, and no third-party interest is directly implicated. Therefore, the standard applied in Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341, as to whether the third-party concern "vitally affects" the "terms and conditions" of the bargaining-unit employees' employment, has no application. Pp. 500-501.
(e) Petitioner's argument that in-plant food prices and services are too trivial to qualify as mandatory bargaining subjects is without merit, especially where both the NLRB and the bargaining-unit employees have taken a contrary view. P. 501.
(f) Problems created by constantly shifting food prices can be anticipated and provided for in the collective-bargaining agreement. To the extent that disputes are likely to be frequent and intense, more, not less, collective bargaining is the remedy. Pp. 501-502.
(g) To require petitioner to bargain over in-plant food-service prices is not futile. Although the prices are set by the third-party caterer, petitioner retains the right to review and control such prices. In any event, an employer can always affect prices by initiating or altering a subsidy to a third-party supplier, such as that provided by petitioner in this case, and will typically have the right to change suppliers in the future. P. 503.
571 F.2d 993, affirmed.
Theophil C. Kammholz, Chicago, Ill., for petitioner.
Norton J. Come, Washington, D. C., for respondent NLRB.
John A. Fillion, Detroit, Mich., for respondent UAW Local 588.
Mr. Justice WHITE delivered the opinion of the Court.
1
The principal question1 in this case is whether prices for in-plant cafeteria and vending machine food and beverages are "terms and conditions of employment" subject to mandatory collective bargaining under §§ 8(a)(5) and 8(d) of the National Labor Relations Act. 49 Stat. 452, as amended, 29 U.S.C. §§ 158(a)(5) and 158(d).2
2
* Petitioner, Ford Motor Co., operates an automotive parts stamping plant in Chicago Heights, Ill., employing 3,600 hourly rated production employees. These employees are represented in collective bargaining with Ford by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and by its administrative component, Local 588, a respondent here.
3
For many years, Ford has undertaken to provide in-plant food services to its Chicago Heights employees.3 These services, which include both cafeterias and vending machines, are managed by an independent caterer, ARA Services, Inc. Under its contract with Ford, ARA furnishes the food, management, machines, and personnel in exchange for reimbursement of all direct costs and a 9% surcharge on net receipts.4 Ford has the right to review and approve the quality, quantity, and price of the food served.
4
Over the years, Ford and the Union have negotiated about food services. The National Labor Relations Board (Board) found:
5
"Since 1967, the local contract has included provisions dealing with vending and cafeteria services. The contracts have covered the staffing of service lines, adequate cafeteria supervision, restocking and repairing vending machines, and menu variety. The 1974 local agreement also states, 'the Company recognized its continuing responsibility for the satisfactory performance of the caterer and for the expeditious handling of complaints concerned with such performance.' " Ford Motor Co. (Chicago Stamping Plant), 230 N.L.R.B. 716 (1977), enf'd, 571 F.2d 993 (CA7 1978).
6
Ford, however, has always refused to bargain about the prices of food and beverages served in its in-plant facilities.
7
On February 6, 1976, Ford notified the Union that cafeteria and vending machine prices would be increased shortly by unspecified amounts. The Union requested bargaining over both price and services and also asked for information relevant to Ford's involvement in food services in order to assist bargaining. These requests were refused by Ford, which took the position that food prices and services are not terms or conditions of employment subject to mandatory bargaining.
8
The Union then filed an unfair labor practice charge with the Board, alleging a refusal to bargain contrary to § 8(a)(5).5 The Board sustained the charge, ordering Ford to bargain on both food prices and services and to supply the Union with the relevant information requested. Ford Motor Co. (Chicago Stamping Plant), supra. In doing so, the Board reaffirmed its position, expressed in several prior cases, that prices of in-plant-supplied food and beverages are generally mandatory bargaining subjects, a position that had not been accepted by reviewing courts.6 The Board also noted that the circumstances of this case made it a particularly strong one for invoking the duty to bargain.7
9
The case came before the Court of Appeals for the Seventh Circuit on Ford's petition for review and the Board's cross petition for enforcement. That court, while adhering to its prior decision in NLRB v. Ladish Co., 538 F.2d 1267 (1976), which had refused enforcement of a Board order to bargain about in-plant food prices, enforced the Board's order here because, "under the facts and circumstances of this case, in-plant cafeteria and vending machine food prices and services materially and significantly affect and have an impact upon terms and conditions of employment and therefore are mandatory subjects of bargaining." 571 F.2d, at 1000. The court was particularly influenced by the lack of reasonable eating alternatives for employees, declaring that "[t]he food one must pay for and eat as a captive customer within the employer's plant can be viewed as a physical dimension of one's working environment." Ibid.
10
Because of the importance of the issue and the apparent conflict between the decision below and decisions of other Circuits, see n. 6, supra, we granted certiorari. 439 U.S. 891, 99 S.Ct. 247, 58 L.E.2d 236 (1978). We affirm the judgment of the Court of Appeals for the Seventh Circuit enforcing the Board's order to bargain.
II
11
The Board has consistently held that in-plant food prices are among those terms and conditions of employment defined in § 8(d) and about which the employer and union must bargain under §§ 8(a)(5) and 8(b)(3). See n. 6, supra. Because it is evident that Congress assigned to the Board the primary task of construing these provisions in the course of adjudicating charges of unfair refusals to bargain and because the "classification of bargaining subjects as 'terms or conditions of employment' is a matter concerning which the Board has special expertise," Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 685-686, 85 S.Ct. 1596, 1600, 14 L.Ed.2d 640 (1965), its judgment as to what is a mandatory bargaining subject is entitled to considerable deference.
12
Section 8(a)(5) of the National Labor Relations Act, as originally enacted, declared it an unfair practice for the employer to refuse to bargain collectively. Act of July 5, 1935, 49 Stat. 453. Although the Act did not purport to define the subjects of collective bargaining, § 9(a) made the union selected by a majority in a bargaining unit the exclusive representative of the employees for bargaining about "rates of pay, wages, hours of employment, or other conditions of employment." Under these provisions, the Board was left with the task of identifying on a case-by-case basis those "other conditions of employment" over which management was required to bargain.
13
In 1947, the Taft-Hartley Act amended the National Labor Relations Act to obligate unions as well as management to bargain; and § 8(d) explicitly defined the duty of both sides to bargain as the obligation to "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . .." 61 Stat. 142, now codified at 29 U.S.C. § 158(d). The original House bill had contained a specific listing of the issues subject to mandatory bargaining, H.R.3020, 80th Cong., 1st Sess., § 2(11) (1947); H.R.Rep.No.245, 80th Cong., 1st Sess., 22-23, 49 (1947), but this attempt to "straight-jacke[t]" and to "limit narrowly the subject matters appropriate for collective bargaining," id., at 71 (minority report);8 see also 93 Cong.Rec. 3446-3447 (1947) (remarks of Rep. Klein), was rejected in conference in favor of the more general language adopted by the Senate and now appearing in § 8(d). S.1126, 80th Cong., 1st Sess., § 8(d) (1947); see 93 Cong.Rec. 6444 (1947) (summary report of Sen. Taft); cf. H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 8, 34 (1947); U.S.Code Cong.Serv.1947, p. 1135. It is thus evident that Congress made a conscious decision to continue its delegation to the Board of the primary responsibility of marking out the scope of the statutory language and of the statutory duty to bargain. This case, therefore, is one of those situations in which we should "recognize without hesitation the primary function and responsibility of the Board . . .," NLRB v. Insurance Agents, 361 U.S. 477, 499, 80 S.Ct. 419, 432, 4 L.Ed.2d 454 (1960), which is that "of applying the general provisions of the Act to the complexities of industrial life . . . and of '[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases' from its special understanding of the 'actualities of industrial relations'." NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963), quoting NLRB v. Steelworkers, 357 U.S. 357, 362-363, 78 S.Ct. 1268, 1271, 2 L.Ed.2d 1383 (1958).9
14
Of course, the judgment of the Board is subject to judicial review; but if its construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute. NLRB v. Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978). In the past we have refused enforcement of Board orders where they had "no reasonable basis in law," either because the proper legal standard was not applied or because the Board applied the correct standard but failed to give the plain language of the standard its ordinary meaning. Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166, 92 S.Ct. 383, 390, 30 L.Ed.2d 341 (1971). We have also parted company with the Board's interpretation where it was "fundamentally inconsistent with the structure of the Act" and an attempt to usurp "major policy decisions properly made by Congress." American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965). Similarly, in NLRB v. Insurance Agents, 361 U.S., at 499, 80 S.Ct., at 433, we could not accept the Board's application of the Act where we were convinced that the Board was moving "into a new area of regulation which Congress had not committed to it."
15
The Board is vulnerable on none of these grounds in this case. Construing and applying the duty to bargain and the language of § 8(d), "other terms and conditions of employment," are tasks lying at the heart of the Board's function. With all due respect to the Courts of Appeals that have held otherwise, we conclude that the Board's consistent view that in-plant food prices and services are mandatory bargaining subjects is not an unreasonable or unprincipled construction of the statute and that it should be accepted and enforced.
16
It is not suggested by petitioner that an employee should work a full 8-hour shift without stopping to eat. It reasonably follows that the availability of food during working hours and the conditions under which it is to be consumed are matters of deep concern to workers, and one need not strain to consider them to be among those "conditions" of employment that should be subject to the mutual duty to bargain. By the same token, where the employer has chosen, apparently in his own interest, to make available a system of in-plant feeding facilities for his employees, the prices at which food is offered and other aspects of this service may reasonably be considered among those subjects about which management and union must bargain.10 The terms and conditions under which food is available on the job are plainly germane to the "working environment," Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 222, 85 S.Ct. 398, 409, 13 L.Ed.2d 233, 245 (1964) (STEWART, J., concurring). Furthermore, the company is not in the business of selling food to its employees, and the establishment of in-plant food prices is not among those "managerial decisions, which lie at the core of entrepreneurial control." Id., at 223, 85 S.Ct., at 409 (STEWART, J., concurring). The Board is in no sense attempting to permit the Union to usurp managerial decisionmaking; nor is it seeking to regulate an area from which Congress intended to exclude it.
17
Including within § 8(d) the prices of in-plant-supplied food and beverages would also serve the ends of the National Labor Relations Act. "The object of this Act was not to allow governmental regulation of the terms and conditions of employment, but rather to insure that employers and their employees could work together to establish mutually satisfactory conditions. The basic theme of the Act was that through collective bargaining the passions, arguments, and struggles of prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement." H. K. Porter Co. v. NLRB, 397 U.S. 99, 103, 90 S.Ct. 821, 823, 25 L.Ed.2d 146 (1970). As illustrated by the facts of this case, substantial disputes can arise over the pricing of in-plant-supplied food and beverages. National labor policy contemplates that areas of common dispute between employers and employees be funneled into collective bargaining. The assumption is that this is preferable to allowing recurring disputes to fester outside the negotiation process until strikes or other forms of economic warfare occur.
18
The trend of industrial practice supports this conclusion. In response to increasing employee concern over the issue, many contracts are now being negotiated that contain provisions concerning in-plant food services.11 In this case, as already noted, local agreements between Ford and the Union have contained detailed provisions about nonprice aspects of in-plant food services for several years. Although not conclusive, current industrial practice is highly relevant in construing the phrase "terms and conditions of employment."12
III
19
Ford nevertheless argues against classifying food prices and services as mandatory bargaining subjects because they do not "vitally affect" the terms and conditions of employment within the meaning of the standard assertedly established by Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S., at 176, 92 S.Ct., at 396, and because they are trivial matters over which neither party should be required to bargain.
20
There is no merit to either of these arguments. First, Ford has misconstrued Pittsburgh Plate Glass. That case made it clear that while § 8(d) normally reaches "only issues that settle an aspect of the relationship between the employer and employees[,] matters involving individuals outside the employment relationship . . . are not wholly excluded." 404 U.S., at 178, 92 S.Ct., at 397. In such instances, as in Teamsters v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959), and Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), the test is not whether the "third-party concern is antagonistic to or compatible with the interests of bargaining-unit employees, but whether it vitally affects the 'terms and conditions' of their employment." 404 U.S., at 179, 92 S.Ct., at 398. Here, however, the matter of in-plant food prices and services is an aspect of the relationship between Ford and its own employees. No third-party interest is directly implicated, and the standard of Pittsburgh Plate Glass has no application.
21
As for the argument that in-plant food prices and services are too trivial to qualify as mandatory subjects, the Board has a contrary view, and we have no basis for rejecting it. It is also clear that the bargaining-unit employees in this case considered the matter far from trivial since they pressed an unsuccessful boycott to secure a voice in setting food prices. They evidently felt, and common sense also tells us, that even minor increases in the cost of meals can amount to a substantial sum of money over time. In any event, we accept the Board's view that in-plant food prices and services are conditions of employment and are subject to the duty to bargain.
22
Ford also argues that the Board's position will result in unnecessary disruption because any small change in price or service will trigger the obligation to bargain. The problem, it is said, will be particularly acute in situations where several unions are involved,13 possibly requiring endless rounds of negotiations over issues as minor as the price of a cup of coffee or a soft drink.
23
These concerns have been thought exaggerated by the Board. Its position in this case, as in all past cases involving the same issue, is that it is sufficient compliance with the statutory mandate if management honors a specific union request for bargaining about changes that have been made or are to be made. Ford Motor Co. (Chicago Stamping Plant), 230 N.L.R.B., at 718; Westinghouse Electric Corp., 156 N.L.R.B. 1080, 1081, enf'd, 369 F.2d 891 (CA4 1966), rev'd en banc, 387 F.2d 542 (1967). The Board apparently assumes that, as a practical matter, requests to bargain will not be lightly made. Moreover, problems created by constantly shifting food prices can be anticipated and provided for in the collective-bargaining agreement. Furthermore, if it is true that disputes over food prices are likely to be frequent and intense, it follows that more, not less, collective bargaining is the remedy. This is the assumption of national labor policy, and it is soundly supported by both reason and experience.14
24
Finally, Ford asserts that to require it to engage in bargaining over in-plant food service prices would be futile because those prices are set by a third-party supplier, ARA. It is true that ARA sets vending machine and cafeteria prices, but under Ford's contract with ARA, Ford retains the right to review and control food services and prices. In any event, an employer can always affect prices by initiating or altering a subsidy to the third-party supplier such as that provided by Ford in this case, and will typically have the right to change suppliers at some point in the future. To this extent the employer holds future, if not present, leverage over in-plant food services and prices.15
25
We affirm, therefore, the Court of Appeals' judgment upholding the Board's determination in this case that in-plant food services and prices are "terms and conditions of employment" subject to mandatory bargaining under §§ 8(a)(5) and 8(d) of the National Labor Relations Act.
26
So ordered.
27
Mr. Justice POWELL, concurring.
28
The Court today holds that prices for in-plant cafeteria and vending machine food and beverages are "terms and conditions of employment" subject to mandatory collective bargaining under the National Labor Relations Act. Although this view of the Act has been taken consistently by the National Labor Relations Board, none of the courts of appeals has agreed with the absolute approach of the Board. Rather, these courts in general have taken the position that whether bargaining with respect to in-plant food service was required depends upon the facts and circumstances of each case. Although the Court of Appeals for the Seventh Circuit enforced the Board's order in this case, it did so on a "facts and circumstances" basis.
29
I had thought that the case-by-case approach was more likely to be fair to both employer and union than is the mandatory bargaining rule adopted today. The conditions and circumstances under which in-plant food service is provided can and do vary widely among the thousands of enterprises subject to the Act. Yet, curiously enough, neither petitioner nor respondent union in this case supports the "facts and circumstances" approach of the Court of Appeals. On balance, I suppose there is merit in having a "bright line" with respect to this issue. This does not put the parties to all collective bargaining on prior notice, with a reasonable expectation that the issue usually will be resolved in advance at the bargaining table. I am, therefore, persuaded to join the Court's opinion.
30
Mr. Justice BLACKMUN, concurring in the result.
31
I am in accord with much—indeed with most—of what the Court pronounces in its opinion, and I join its judgment.
32
My concern is with the last two sentences of the penultimate paragraph of the Court's opinion. Ante, at 503. The Court there says that "[i]n any event" an employer, by initiating or altering a subsidy to a third-party supplier, "can always affect prices" and "will typically have the right to change suppliers at some point in the future." Thus, to this extent, "the employer holds future, if not present, leverage over in-plant food services and prices." To me, this language seems to say that Ford's control over prices under the facts of this case is really irrelevant to the "mandatory subject" inquiry, and seems to imply that an employer must bargain about prices even if he has no actual control over them at all. Any employer, of course, could achieve some measure of future control over prices, by initiating a subsidy or by changing suppliers. That future possibility, however, should not be enough.
33
If the employer has no control over prices, bargaining about them is futile. If the employer rents space in a corner of the plant to a restaurateur, and thereafter maintains a "hands off" attitude and has no input into the food operation, it is difficult for me to see how bargaining about food prices makes any sense. The employer has no more control over prices by virtue of its landlord status than it has over prices charged at the hamburger shop across the street. If the employer really has no control over prices, moreover, it is not obvious that the prices charged "settle an aspect of the relationship between the employer and employees," Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178, 92 S.Ct. 383, 397, 30 L.Ed.2d 341 (1971), a precondition for mandatory bargaining status. The pertinent relationship is then between the restaurateur and the employees. If the employer has no control over prices and services whatsoever, and if he nevertheless is required to bargain about them because in the future he might be able to exercise some control over them, the employer's "managerial decision making" may well be usurped, and we are close to the basic concern of the concurrence in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 222, 85 S.Ct. 398, 409, 13 L.Ed.2d 233 (1964).
34
I think it is unwise to go out of our way to hold—if the Court does so here—that an employer with no present actual influence or control over food prices should be forced to bargain about them because of the mere possibility that he might have "future leverage." That situation is not presented in this case, and I see no need for the Court to decide it. For now, I prefer only a general rule that food prices are mandatorily bargainable so long as the employer, as here, has some measure of actual influence over the prices charged.
35
I thus join the Court in the result it reaches in this case. I would reserve other situations for another day.
1
The National Labor Relations Board's order at issue here directed petitioner to bargain with respondent Union "with respect to food services and changes in food prices in [petitioner's in-plant] vending machines and cafeteria. . . ." Ford Motor Co. (Chicago Stamping Plant), 230 N.L.R.B. 716, 719 (1977), enf'd, 571 F.2d 993 (CA7 1978). The duty to bargain over nonprice aspects of in-plant food services is thus also at issue here. The Board's order also obligated petitioner to supply respondent Union with the information necessary for bargaining. 230 N.L.R.B., at 719. It seems agreed that if food prices and service are mandatory bargaining subjects, the order to furnish information should stand. See Detroit Edison Co. v. NLRB, 440 U.S. 301, 303, 99 S.Ct. 1123, 1125, 59 L.Ed.2d 333 (1979).
2
The relevant provisions of the National Labor Relations Act are as follows:
"Sec. 8. (a) It shall be an unfair labor practice for an employer—
* * * * *
"(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).
* * * * *
"(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession . . ..
* * * * *
"Sec. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . .." As amended, 61 Stat. 140, 142, 143.
As originally enacted, the Wagner Act did not define the subjects of § 8(a)(5)'s obligation to bargain, although § 9(a), which was contained in the Wagner Act, made reference to "rates of pay, wages, hours of employment, or other conditions of employment." Section 8(d) was added by the Taft-Hartley amendments to the Act in 1947 and expressly defined the scope of the duty to bargain as including "wages, hours, and other terms and conditions of employment." The relevant details of this development are discussed infra, at 1848.
3
It is difficult for employees to eat away from the plant during their shifts. The lunch period is 30 minutes, and the few restaurants in the vicinity are all over a mile away, in an area heavily saturated with industrial plants employing thousands of workers. As a result, very few of the 3,600 workers leave the plant during the lunch period. Two 22-minute rest breaks are also provided during the shifts, but employees are not permitted to leave the plant then.
Some workers bring food to work. No refrigerated storage facilities are provided, however, and spoilage and vermin are a problem, particularly in the summer.
4
If receipts exceed ARA's cost plus the 9% surcharge, Ford is entitled to the excess. If revenues do not meet the costs of the operation plus the surcharge, the company is obligated to pay ARA up to $52,000 a year. In recent years, deficits have occurred often. In meeting the deficits, Ford has thereby subsidized employee meals and indirectly influenced the price of the food sold.
5
The Union also began a boycott of food services in which more than half of the employees participated. The boycott ended slightly more than three months later without any reductions in prices.
6
Westinghouse Electric Corp., 156 N.L.R.B. 1080, 1081, enf'd, 369 F.2d 891 (CA4 1966), rev'd en banc, 387 F.2d 542 (1967); McCall Corp., 172 N.L.R.B. 540 (1968), enf. denied, 432 F.2d 187 (CA4 1970); Package Machinery Co., 191 N.L.R.B. 268 (1971), enf. denied, 457 F.2d 936 (CA1 1972); Ladish Co., 219 N.L.R.B. 354 (1975), enf. denied, 538 F.2d 1267 (CA7 1976).
7
See Ford Motor Co. (Chicago Stamping Plant), 230 N.L.R.B., at 717-718, n. 11:
"We note that the instant case, on its facts, is in many respects a stronger case than Ladish for adhering to our position. Unlike Ladish, where the respondent had no input on prices, the Respondent in this case retains influence over cafeteria and vending machine prices by its right to review prices and its leverage of the subsidy agreement. In addition, there also exists the possibility for the Respondent to make a profit on the food service operation. Also, since 1967, the parties in this case have bargained over in-plant food services. No such bargaining history was present in Ladish. Moreover, in Ladish, the court implied that 'brown-bagging' is a viable alternative to purchasing lunch from the commercial food service. However, in this case, employees have complained about spoilage of food stored in their lockers until lunch, as well as unsanitary conditions in the locker room (wherein the Respondent has found it necessary on occasion to exterminate). Additionally, the employees have apparently been so concerned with the food pricing that over half of them participated in a boycott of the Respondent's food service operations. There was no such labor strife involved in Ladish. Lastly, in Ladish the employees were represented by seven unions. The court therein projected that each time the food prices were raised 'the Company could be compelled to engage in seven rounds of negotiations.' 538 F.2d at 1272. This fact, the court declared, 'provides a good example of a situation in which bargaining could be both disruptive of stable relations and economically wasteful.' Id. In the instant case, however, the employees are represented by a single union. While we adhere to the view that the number of unions representing employees at a single plant is not a factor in resolving this issue, we nevertheless note that, even in the court's view, there is no potential for conflicting union demands in this case."
8
The Report declared:
"The appropriate scope of collective bargaining cannot be determined by a formula; it will inevitably depend upon the traditions of an industry, the social and political climate at any given time, the needs of employers and employees, and many related factors. What are proper subject matters for collective bargaining should be left in the first instance to employers and trade unions, and in the second place, to any administrative agency skilled in the field and competent to devote the necessary time to a study of industrial practices and traditions in each industry or area of the country, subject to review by the courts. It cannot and should not be strait-jacketed by legislative enactment." H.R.Rep.No.245, 80th Cong., 1st Sess., 71 (1947) (minority report).
9
See also Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178, 92 S.Ct. 383, 397, 30 L.Ed.2d 341 (1971) ("Section 8(d) of the Act, of course, does not immutably fix a list of subjects for mandatory bargaining"); East Bay Union of Machinists v. NLRB, 116 U.S.App.D.C. 198, 201, 322 F.2d 411, 414 (1963) (Burger, J.), ("The use of this language was a reflection of the congressional awareness that the act covered a wide variety of industrial and commercial activity and a recognition that collective bargaining must be kept flexible without precise delineation of what subjects were covered so that the Act could be administered to meet changing conditions"), aff'd sub nom. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964).
10
We should not be understood as holding that whether in-plant food services are to be provided where such services do not already exist is a mandatory bargaining subject. That issue is not involved here.
11
See, e. g., 2 Bureau of National Affairs, Collective Bargaining (Negotiation and Contracts) 95:421-95:424 (1976). See also the following arbitration decisions construing collective-bargaining agreements to cover the cost of employer-supplied food as a condition of employment: Universal Form Clamp Co., 68 Lab.Arb. 1223 (Miller, 1977) (cost of coffee); Hilton Hotels Corp., 42 Lab.Arb. 1267, 1270-1272 (Hanlon, 1964) (cost and type of meals); Greater Los Angeles Zoo Assn., 60 Lab.Arb. 838 (Christopher, 1973) (employer may not discontinue practice of providing free meals to zoo food vendors when contract provided that there would be no reduction of employee benefits); Alpena General Hospital, 50 Lab.Arb. 48 (Jones, 1967), and Lutheran Medical Center, 44 Lab.Arb. 107 (Wolf, 1964) (free meals are working condition).
A survey conducted by the Bureau of National Affairs' Personnel Policies Forum found that 54% of the responding companies provided food services for employees using a lunchroom with vending machines; 43% of the companies provided cafeterias; and 15% provided vending machines with snackbar service. BNA Labor Policy and Practice Series (Personnel Management) 245:201-245:204 (1976). The National Industrial Conference Board in 1964 reported that 47% of the manufacturing companies that responded to a survey provided cafeteria services, and 55% of the companies subsidized the operation. Only 8% of the companies reported that they were trying to operate the cafeterias at a profit. NICB, Personnel Practices in Factory and Office: Manufacturing, Personnel Policy Study No. 194, pp. 76-77 (1964). Cf. Fisher, Operating Your Firm's Dining Area—Profitably, Administrative Management, Oct. 1966, pp. 66-67; Scheer, The Company Cafeteria, 45 Personnel J. 85-86 (1966); Feeding the Big Captive Customers, Business Week, Oct. 27, 1975, pp. 46-54.
Although the decision below by the Seventh Circuit was the first to uphold the Board's order to bargain about the prices of in-plant-supplied food services, other aspects of food services have been found to be covered by § 8(d). These include improvement in lunchroom equipment and supplies, Preston Products Co., 158 N.L.R.B. 322 (1966), aff'd in relevant part, 129 U.S.App.D.C. 196, 392 F.2d 801 (1967), cert. denied, 392 U.S. 906, 88 S.Ct. 2058, 20 L.Ed.2d 1364 (1968); coffeebreak scheduling and service of free coffee, Missourian Pub. Co., 216 N.L.R.B. 175, 180 (1975); D & C Textile Corp., 189 N.L.R.B. 769, 771, 783 (1971); Fleming Mfg. Co., 119 N.L.R.B. 452, 455 (1957); free meal policy, O'Land Inc., d/b/a Ramada Inn South, 206 N.L.R.B. 210, 214-215 (1973); cancellation of catering truck service, Bralco Metals, Inc., 214 N.L.R.B. 143, 146-150 (1974); meal areas, Hasty Print, Inc., d/b/a Walker Color Graphics, 227 N.L.R.B. 455, 461 (1976); and cleanup
of lunchroom areas by employees, Cosmo Graphics, Inc., 217 N.L.R.B. 1061, 1066 (1975).
And, where no in-plant facilities exist, employers are still obligated to bargain about meal hours and coffee breaks. See, e. g., Fibreboard Paper Products Corp. v. NLRB, 379 U.S., at 222, 85 S.Ct., at 409 (STEWART, J., concurring); Meal Cutters v. Jewel Tea Co., 381 U.S. 676, 691, 85 S.Ct. 1596, 1602, 14 L.Ed.2d 640 (1965).
12
"While not determinative, it is appropriate to look to industrial bargaining practices in appraising the propriety of including a particular subject within the scope of mandatory bargaining. Labor Board v. American Nat. Ins. Co., 343 U.S. 395, 408 [72 S.Ct. 824, 831, 96 L.Ed. 1027]. Industrial experience is not only reflective of the interests of labor and management in the subject matter but is also indicative of the amenability of such subjects to the collective bargaining process." Fibreboard Paper Products Corp. v. NLRB, supra, 379 U.S., at 211, 85 S.Ct., at 403.
13
This factor is essentially irrelevant to the determination in this case. The definition of a mandatory collective-bargaining subject does not depend on the number of unions within the bargaining unit. Westinghouse Electric Corp., 156 N.L.R.B., at 1089; McCall Corp., 172 N.L.R.B., at 547.
14
See, e. g., Fibreboard Paper Products Corp. v. NLRB, supra, 379 U.S., at 211, 85 S.Ct., at 403 ("The Act was framed with an awareness that refusals to confer and negotiate had been one of the most prolific causes of industrial strife"); Westinghouse Electric Corp. v. NLRB, 369 F.2d, at 895 ("The underlying philosophy of the Labor Act is that discussion of issues between labor and management serves as a valuable prophylactic by removing grievances, real or fancied, and tends to improve and stabilize labor relations"); see also Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1412 (1958): "Participation in debate often produces changes in a seemingly fixed position either because new facts are brought to light or because the strengths and weaknesses of the several arguments become apparent. Sometimes the parties hit upon some novel compromise of an issue which has been thrashed over and over. Much is gained even by giving each side a better picture of the strength of the other's convictions. The cost is so slight that the potential gains easily justify legal compulsion to engage in the discussion."
15
In-plant food services provided by third parties are not unlike other kinds of benefits, such as health insurance, implicating outside suppliers. In each case, the employer contracts with a third party to provide a benefit to employees and, during the term of the contract, is unable to change the price at which that benefit is available to the employee except by employee subsidies.
| 67
|
441 U.S. 520
99 S.Ct. 1861
60 L.Ed.2d 447
Griffin B. BELL et al., Petitioners,v.Louis WOLFISH et al.
No. 77-1829.
Argued Jan. 16, 1979.
Decided May 14, 1979.
Syllabus
Respondent inmates brought this class action in Federal District Court challenging the constitutionality of numerous conditions of confinement and practices in the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees. The District Court, on various constitutional grounds, enjoined, inter alia, the practice of housing, primarily for sleeping purposes, two inmates in individual rooms originally intended for single occupancy ("double-bunking"); enforcement of the so-called "publisher-only" rule prohibiting inmates from receiving hard-cover books that are not mailed directly from publishers, book clubs, or bookstores; the prohibition against inmates' receipt of packages of food and personal items from outside the institution; the practice of body-cavity searches of inmates following contact visits with person from outside institution; and the requirement that pretrial detainees remain outside their rooms during routine inspections by MCC officials. The Court of Appeals affirmed these rulings, holding with respect to the "double-bunking" practice that the MCC had failed to make a showing of "compelling necessity" sufficient to justify such practice.
Held :
1. The "double-bunking" practice does not deprive pretrial detainees of their liberty without due process of law in contravention of the Fifth Amendment. Pp. 530-543.
(a) There is no source in the Constitution for the Court of Appeals' compelling-necessity standard. Neither the presumption of innocence, the Due Process Clause of the Fifth Amendment, nor a pretrial detainee's right to be free from punishment provides any basis for such standard. Pp. 531-535.
(b) In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicates only the protection against deprivation of liberty without due process of law, the proper inquiry is whether those conditions or restrictions amount to punishment of the detainee. Absent a showing of an expressed intent to punish, if a particular condition or restriction is reasonably related to a legitimate nonpunitive governmental objective, it does not, without more, amount to "punishment," but, conversely, if a condition or restriction is arbitrary or purposeless, a court may permissibly infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. In addition to ensuring the detainees' presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such conditions and restrictions are intended as punishment. Pp. 535-540.
(c) Judged by the above analysis and on the record, "double-bunking" as practiced at the MCC did not, as a matter of law, amount to punishment and hence did not violate respondents' rights under the Due Process Clause of the Fifth Amendment. While "double-bunking" may have taxed some of the equipment or particular facilities in certain of the common areas in the MCC, this does not mean that the conditions at the MCC failed to meet the standards required by the Constitution, particularly where it appears that nearly all pretrial detainees are released within 60 days. Pp. 541-543.
2. Nor do the "publisher-only" rule, body-cavity searches, the prohibition against the receipt of packages, or the room-search rule violate any constitutional guarantees. Pp. 544-562.
(a) Simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. There must be a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application," Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, and this principle applies equally to pretrial detainees and convicted prisoners. Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. Since problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions, prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Pp. 544-548.
[SCQ!]] (b) The "publisher-only" rule does not violate the First Amendment rights of MCC inmates but is a rational response by prison officials to the obvious security problem of preventing the smuggling of contraband in books sent from outside. Moreover, such rule operates in a neutral fashion, without regard to the content of the expression, there are alternative means of obtaining reading material, and the rule's impact on pretrial detainees is limited to a maximum period of approximately 60 days. Pp. 548-552. (c) The restriction against the receipt of packages from outside the facility does not deprive pretrial detainees of their property without due process of law in contravention of the Fifth Amendment, especially in view of the obvious fact that such packages are handy devices for the smuggling of contraband. Pp. 553-555.
(d) Assuming that a pretrial detainee retains a diminished expectation of privacy after commitment to a custodial facility, the room-search rule does not violate the Fourth Amendment but simply facilitates the safe and effective performance of the searches and thus does not render the searches "unreasonable" within the meaning of that Amendment. Pp. 555-557.
(e) Similarly, assuming that pretrial detainees retain some Fourth Amendment rights upon commitment to a corrections facility, the body-cavity searches do not violate that Amendment. Balancing the significant and legitimate security interests of the institution against the inmates' privacy interests, such searches can be conducted on less than probable cause and are not unreasonable. Pp. 558-560.
(f) None of the security restrictions and practices described above constitute "punishment" in violation of the rights of pretrial detainees under the Due Process Clause of the Fifth Amendment. These restrictions and practices were reasonable responses by MCC officials to legitimate security concerns, and, in any event, were of only limited duration so far as the pretrial detainees were concerned. Pp. 560-562.
2 Cir., 573 F.2d 118, reversed and remanded.
Andrew L. Frey, Washington, D. C., for petitioners.
Phylis Skloot Bamberger, New York City, for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Over the past five Terms, this Court has in several decisions considered constitutional challenges to prison conditions or practices by convicted prisoners.1 This case requires us to examine the constitutional rights of pretrial detainees—those persons who have been charged with a crime but who have not yet been tried on the charge. The parties concede that to ensure their presence at trial, these persons legitimately may be incarcerated by the Government prior to a determination of their guilt or innocence, infra, at 533-535, and n. 15; see 18 U.S.C. §§ 3146, 3148, and it is the scope of their rights during this period of confinement prior to trial that is the primary focus of this case.
2
This lawsuit was brought as a class action in the United States District Court for the Southern District of New York to challenge numerous conditions of confinement and practices at the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees. The District Court, in the words of the Court of Appeals for the Second Circuit, "intervened broadly into almost every facet of the institution" and enjoined no fewer than 20 MCC practices on constitutional and statutory grounds. The Court of Appeals largely affirmed the District Court's constitutional rulings and in the process held that under the Due Process Clause of the Fifth Amendment, pretrial detainees may "be subjected to only those 'restrictions and privations' which 'inhere in their confinement itself or which are justified by compelling necessities of jail administration.' " Wolfish v. Levi, 573 F.2d 118, 124 (1978), quoting Rhem v. Malcolm, 507 F.2d 333, 336 (CA2 1974). We granted certiorari to consider the important constitutional questions raised by these decisions and to resolve an apparent conflict among the Circuits.2 439 U.S. 816, 99 S.Ct. 76, 58 L.Ed.2d 107 (1978). We now reverse.
3
* The MCC was constructed in 1975 to replace the converted waterfront garage on West Street that had served as New York City's federal jail since 1928. It is located adjacent to the Foley Square federal courthouse and has as its primary objective the housing of persons who are being detained in custody prior to trial for federal criminal offenses in the United States District Courts for the Southern and Eastern Districts of New York and for the District of New Jersey. Under the Bail Reform Act, 18 U.S.C. § 3146, a person in the federal system is committed to a detention facility only because no other less drastic means can reasonably ensure his presence at trial. In addition to pretrial detainees, the MCC also houses some convicted inmates who are awaiting sentencing or transportation to federal prison or who are serving generally relatively short sentences in a service capacity at the MCC, convicted prisoners who have been lodged at the facility under writs of habeas corpus ad prosequendum or ad testificandum issued to ensure their presence at upcoming trials, witnesses in protective custody, and persons incarcerated for contempt.3
4
The MCC differs markedly from the familiar image of a jail; there are no barred cells, dank, colorless corridors, or clanging steel gates. It was intended to include the most advanced and innovative features of modern design of detention facilities. As the Court of Appeals stated: "[I]t represented the architectural embodiment of the best and most progressive penological planning." 573 F.2d, at 121. The key design element of the 12-story structure is the "modular" or "unit" concept, whereby each floor designed to house inmates has one or two largely self-contained residential units that replace the traditional cellblock jail construction. Each unit in turn has several clusters or corridors of private rooms or dormitories radiating from a central 2-story "multipurpose" or common room, to which each inmate has free access approximately 16 hours a day. Because our analysis does not turn on the particulars of the MCC concept or design, we need not discuss them further.
5
When the MCC opened in August 1975, the planned capacity was 449 inmates, an increase of 50% over the former West Street facility. Id., at 122. Despite some dormitory accommodations, the MCC was designed primarily to house these inmates in 389 rooms, which originally were intended for single occupancy. While the MCC was under construction, however, the number of persons committed to pretrial detention began to rise at an "unprecedented" rate. Ibid. The Bureau of Prisons took several steps to accommodate this unexpected flow of persons assigned to the facility, but despite these efforts, the inmate population at the MCC rose above its planned capacity within a short time after its opening. To provide sleeping space for this increased population, the MCC replaced the single bunks in many of the individual rooms and dormitories with double bunks.4 Also, each week some newly arrived inmates had to sleep on cots in the common areas until they could be transferred to residential rooms as space became available. See id., at 127-128.
6
On November 28, 1975, less than four months after the MCC had opened, the named respondents initiated this action by filing in the District Court a petition for a writ of habeas corpus.5 The District Court certified the case as a class action on behalf of all persons confined at the MCC, pretrial detainees and sentenced prisoners alike.6 The petition served up a veritable potpourri of complaints that implicated virtually every facet of the institution's conditions and practices. Respondents charged, inter alia, that they had been deprived of their statutory and constitutional rights because of overcrowded conditions, undue length of confinement, improper searches, inadequate recreational, educational, and employment opportunities, insufficient staff, and objectionable restrictions on the purchase and receipt of personal items and books.7
7
In two opinions and a series of orders, the District Court enjoined numerous MCC practices and conditions. With respect to pretrial detainees, the court held that because they are "presumed to be innocent and held only to ensure their presence at trial, 'any deprivation or restriction of * * * rights beyond those which are necessary for confinement alone, must be justified by a compelling necessity.' " United States ex rel. Wolfish v. Levi, 439 F.Supp. 114, 124 (1977), quoting Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 397 (CA2 1975). And while acknowledging that the rights of sentenced inmates are to be measured by the different standard of the Eighth Amendment, the court declared that to house "an inferior minority of persons . . . in ways found unconstitutional for the rest" would amount to cruel and unusual punishment. United States ex rel. Wolfish v. United States, 428 F.Supp. 333, 339 (1977).8
8
Applying these standards on cross-motions for partial summary judgment, the District Court enjoined the practice of housing two inmates in the individual rooms and prohibited enforcement of the so-called "publisher-only" rule, which at the time of the court's ruling prohibited the receipt of all books and magazines mailed from outside the MCC except those sent directly from a publisher or a book club.9 After a trial on the remaining issues, the District Court enjoined, inter alia, the doubling of capacity in the dormitory areas, the use of the common rooms to provide temporary sleeping accommodations, the prohibition against inmates' receipt of packages containing food and items of personal property, and the practice of requiring inmates to expose their body cavities for visual inspection following contact visits. The court also granted relief in favor of pretrial detainees, but not convicted inmates, with respect to the requirement that detainees remain outside their rooms during routine inspections by MCC officials.10
9
The Court of Appeals largely affirmed the District Court's rulings, although it rejected that court's Eighth Amendment analysis of conditions of confinement for convicted prisoners because the "parameters of judicial intervention into . . . conditions . . . for sentenced prisoners are more restrictive than in the case of pretrial detainees." 573 F.2d, at 125.11 Accordingly, the court remanded the matter to the District Court for it to determine whether the housing for sentenced inmates at the MCC was constitutionally "adequate." But the Court of Appeals approved the due process standard employed by the District Court in enjoining the conditions of pretrial confinement. It therefore held that the MCC had failed to make a showing of "compelling necessity" sufficient to justify housing two pretrial detainees in the individual rooms. Id., at 126-127. And for purposes of our review (since petitioners challenge only some of the Court of Appeals' rulings), the court affirmed the District Court's granting of relief against the "publisher-only" rule, the practice of conducting body-cavity searches after contact visits, the prohibition against receipt of packages of food and personal items from outside the institution, and the requirement that detainees remain outside their rooms during routine searches of the rooms by MCC officials. Id., at 129-132.12
II
10
As a first step in our decision, we shall address "double-bunking" as it is referred to by the parties, since it is a condition of confinement that is alleged only to deprive pretrial detainees of their liberty without due process of law in contravention of the Fifth Amendment. We will treat in order the Court of Appeals' standard of review, the analysis which we believe the Court of Appeals should have employed, and the conclusions to which our analysis leads us in the case of "double-bunking."
A.
11
The Court of Appeals did not dispute that the Government may permissibly incarcerate a person charged with a crime but not yet convicted to ensure his presence at trial. However, reasoning from the "premise that an individual is to be treated as innocent until proven guilty," the court concluded that pretrial detainees retain the "rights afforded unincarcerated individuals," and that therefore it is not sufficient that the conditions of confinement for pretrial detainees "merely comport with contemporary standards of decency prescribed by the cruel and unusual punishment clause of the eighth amendment." 573 F.2d, at 124. Rather, the court held, the Due Process Clause requires that pretrial detainees "be subjected to only those 'restrictions and privations' which 'inhere in their confinement itself or which are justified by compelling necessities of jail administration.' " Ibid., quoting Rhem v. Malcolm, 507 F.2d, at 336. Under the Court of Appeals' "compelling necessity" standard, "deprivation of the rights of detainees cannot be justified by the cries of fiscal necessity, . . . administrative convenience, . . . or by the cold comfort that conditions in other jails are worse." 573 F.2d, at 124. The court acknowledged, however, that it could not "ignore" our admonition in Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974), that "courts are ill equipped to deal with the increasingly urgent problems of prison administration," and concluded that it would "not [be] wise for [it] to second-guess the expert administrators on matters on which they are better informed." 573 F.2d, at 124.13
12
Our fundamental disagreement with the Court of Appeals is that we fail to find a source in the Constitution for its compelling-necessity standard.14 Both the Court of Appeals and the District Court seem to have relied on the "presumption of innocence" as the source of the detainee's substantive right to be free from conditions of confinement that are not justified by compelling necessity. 573 F.2d, at 124; 439 F.Supp., at 124; accord, Campbell v. McGruder, 188 U.S.App.D.C. 258, 266, 580 F.2d 521, 529 (1978); Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 397 (CA2 1975); Rhem v. Malcolm, supra, 507 F.2d, at 336. But see Feeley v. Sampson, 570 F.2d 364, 369 n. 4 (CA1 1978); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1080 n. 1 (CA3 1976). But the presumption of innocence provides no support for such a rule.
13
The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; it also may serve as an admonishment to the jury to judge an accused's guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody, or from other matters not introduced as proof at trial. Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1935, 56 L.Ed.2d 468 (1978); see Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); 9 J. Wigmore, Evidence § 2511 (3d ed. 1940). It 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; . . .' an 'assumption' that is indulged in the absence of contrary evidence." Taylor v. Kentucky, supra, 436 U.S., at 484, n. 12, 98 S.Ct., at 1934, n. 12. Without question, the presumption of innocence plays an important role in our criminal justice system. "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). But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.
14
The Court of Appeals also relied on what it termed the "indisputable rudiments of due process" in fashioning its compelling-necessity test. We do not doubt that the Due Process Clause protects a detainee from certain conditions and restrictions of pretrial detainment. See infra, at 535-540. Nonetheless, that Clause provides no basis for application of a compelling-necessity standard to conditions of pretrial confinement that are not alleged to infringe any other, more specific guarantee of the Constitution.
15
It is important to focus on what is at issue here. We are not concerned with the initial decision to detain an accused and the curtailment of liberty that such a decision necessarily entails. See Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975); United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). Neither respondents nor the courts below question that the Government may permissibly detain a person suspected of committing a crime prior to a formal adjudication of guilt. See Gerstein v. Pugh, supra, 420 U.S., at 111-114, 95 S.Ct., at 861-863. Nor do they doubt that the Government has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences, or that confinement of such persons pending trial is a legitimate means of furthering that interest. Tr. of Oral Arg. 27; see Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951).15 Instead, what is at issue when an aspect of pretrial detention that is not alleged to violate any express guarantee of the Constitution is challenged, is the detainee's right to be free from punishment, see infra, at 535-537, and his understandable desire to be as comfortable as possible during his confinement, both of which may conceivably coalesce at some point. It seems clear that the Court of Appeals did not rely on the detainee's right to be free from punishment, but even if it had that right does not warrant adoption of that court's compelling-necessity test. See infra, at 535-540. And to the extent the court relied on the detainee's desire to be free from discomfort, it suffices to say that this desire simply does not rise to the level of those fundamental liberty interests delineated in cases such as Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).
B
16
In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee.16 For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.17 See Ingraham v. Wright, 430 U.S. 651, 671-672 n. 40, 674, 97 S.Ct. 1401, 1412-1413 n. 40, 1414, 51 L.Ed.2d 711 (1977); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-167, 186, 83 S.Ct. 554, 565-567, 576, 9 L.Ed.2d 644 (1963); Wong Wing v. United States, 163 U.S. 228, 237, 16 S.Ct. 977, 980, 41 L.Ed. 140 (1896). A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has had only a "judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest." Gerstein v. Pugh, supra, 420 U.S., at 114, 95 S.Ct., at 863; see Virginia v. Paul, 148 U.S. 107, 119, 13 S.Ct. 536, 540, 37 L.Ed. 386 (1893). And, if he is detained for a suspected violation of a federal law, he also has had a bail hearing. See 18 U.S.C. §§ 3146, 3148.18 Under such circumstances, the Government concededly may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.
17
Not every disability imposed during pretrial detention amounts to "punishment" in the constitutional sense, however. Once the Government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. Traditionally, this has meant confinement in a facility which, no matter how modern or how antiquated, results in restricting the movement of a detainee in a manner in which he would not be restricted if he simply were free to walk the streets pending trial. Whether it be called a jail, a prison, or a custodial center, the purpose of the facility is to detain. Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainee's understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into "punishment."
18
This Court has recognized a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may. See, e. g., Kennedy v. Mendoza-Martinez, supra, 372 U.S., at 168, 83 S.Ct., at 567; Flemming v. Nestor, 363 U.S. 603, 613-614, 80 S.Ct. 1367, 1374-1375, 4 L.Ed.2d 1435 (1960); cf. De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109 (1960). In Kennedy v. Mendoza-Martinez, supra, the Court examined the automatic forfeiture-of-citizenship provisions of the immigration laws to determine whether that sanction amounted to punishment or a mere regulatory restraint. While it is all but impossible to compress the distinction into a sentence or a paragraph, the Court there described the tests traditionally applied to determine whether a governmental act is punitive in nature:
19
"Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions." 372 U.S., at 168-169, 83 S.Ct., at 567-568 (footnotes omitted).
20
Because forfeiture of citizenship traditionally had been considered punishment and the legislative history of the forfeiture provisions "conclusively" showed that the measure was intended to be punitive, the Court held that forfeiture of citizenship in such circumstances constituted punishment that could not constitutionally be imposed without due process of law. Id., at 167-170, 186, 83 S.Ct., at 566-569, 576.
21
The factors identified in Mendoza-Martinez provide useful guideposts in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word. A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. See Flemming v. Nestor, supra, 363 U.S., at 613-617, 80 S.Ct., at 1374-1376.19 Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on "whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]." Kennedy v. Mendoza-Martinez, 372 U.S., at 168-169, 83 S.Ct., at 567-568; see Flemming v. Nestor, supra, 363 U.S., at 617, 80 S.Ct., at 1376. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment."20 Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. See ibid.21 Courts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility. Cf. United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977); United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973).
22
One further point requires discussion. The petitioners assert, and respondents concede, that the "essential objective of pretrial confinement is to insure the detainees' presence at trial." Brief for Petitioners 43; see Brief for Respondents 33. While this interest undoubtedly justifies the original decision to confine an individual in some manner, we do not accept respondents' argument that the Government's interest in ensuring a detainee's presence at trial is the only objective that may justify restraints and conditions once the decision is lawfully made to confine a person. "If the government could confine or otherwise infringe the liberty of detainees only to the extent necessary to ensure their presence at trial, house arrest would in the end be the only constitutionally justified form of detention." Campbell v. McGruder, 188 U.S.App.D.C., at 266, 580 F.2d, at 529. The Government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These legitimate operational concerns may require administrative measures that go beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees.22 Restraints that are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees' presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.23
C
23
Judged by this analysis, respondents' claim that "double-bunking" violated their due process rights fails. Neither the District Court nor the Court of Appeals intimated that it considered "double-bunking" to constitute punishment; instead, they found that it contravened the compelling-necessity test, which today we reject. On this record, we are convinced as a matter of law that "double-bunking" as practiced at the MCC did not amount to punishment and did not, therefore, violate respondents' rights under the Due Process Clause of the Fifth Amendment.24
24
Each of the rooms at the MCC that house pretrial detainees has a total floor space of approximately 75 square feet. Each of them designated for "double-bunking," see n. 4, supra, contains a double bunkbed, certain other items of furniture, a wash basin, and an uncovered toilet. Inmates generally are locked into their rooms from 11 p.m. to 6:30 a.m. and for brief periods during the afternoon and evening head counts. During the rest of the day, they may move about freely between their rooms and the common areas.
25
Based on affidavits and a personal visit to the facility, the District Court concluded that the practice of "double-bunking" was unconstitutional. The court relied on two factors for its conclusion: (1) the fact that the rooms were designed to house only one inmate, 428 F.Supp., at 336-337; and (2) its judgment that confining two persons in one room or cell of this size constituted a "fundamental denia[l] of decency, privacy, personal security, and, simply, civilized humanity . . . ." Id., at 339. The Court of Appeals agreed with the District Court. In response to petitioners' arguments that the rooms at the MCC were larger and more pleasant than the cells involved in the cases relied on by the District Court, the Court of Appeals stated:
26
"[W]e find the lack of privacy inherent in double-celling in rooms intended for one individual a far more compelling consideration than a comparison of square footage or the substitution of doors for bars, carpet for concrete, or windows for walls. The government has simply failed to show any substantial justification for double-celling." 573 F.2d, at 127.
27
We disagree with both the District Court and the Court of Appeals that there is some sort of "one man, one cell" principle lurking in the Due Process Clause of the Fifth Amendment. While confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious questions under the Due Process Clause as to whether those conditions amounted to punishment, nothing even approaching such hardship is shown by this record.25
28
Detainees are required to spend only seven or eight hours each day in their rooms, during most or all of which they presumably are sleeping. The rooms provide more than adequate space for sleeping.26 During the remainder of the time, the detainees are free to move between their rooms and the common area. While "double-bunking" may have taxed some of the equipment or particular facilities in certain of the common areas, United States ex rel. Wolfish v. United States, 428 F.Supp., at 337, this does not mean that the conditions at the MCC failed to meet the standards required by the Constitution. Our conclusion in this regard is further buttressed by the detainees' length of stay at the MCC. See Hutto v. Finney, 437 U.S. 678, 686-687, 98 S.Ct. 2565, 2571-2572, 57 L.Ed.2d 522 (1978). Nearly all of the detainees are released within 60 days. See n. 3, supra. We simply do not believe that requiring a detainee to share toilet facilities and this admittedly rather small sleeping place with another person for generally a maximum period of 60 days violates the Constitution.27
III
29
Respondents also challenged certain MCC restrictions and practices that were designed to promote security and order at the facility on the ground that these restrictions violated the Due Process Clause of the Fifth Amendment, and certain other constitutional guarantees, such as the First and Fourth Amendments. The Court of Appeals seemed to approach the challenges to security restrictions in a fashion different from the other contested conditions and restrictions. It stated that "once it has been determined that the mere fact of confinement of the detainee justifies the restrictions, the institution must be permitted to use reasonable means to insure that its legitimate interests in security are safeguarded." 573 F.2d, at 124. The court might disagree with the choice of means to effectuate those interests, but it should not "second-guess the expert administrators on matters on which they are better informed. . . . Concern with minutiae of prison administration can only distract the court from detached consideration of the one overriding question presented to it: does the practice or condition violate the Constitution?" Id., at 124-125. Nonetheless, the court affirmed the District Court's injunction against several security restrictions. The court rejected the arguments of petitioners that these practices served the MCC's interest in security and order and held that the practices were unjustified interferences with the retained constitutional rights of both detainees and convicted inmates. Id., at 129-132. In our view, the Court of Appeals failed to heed its own admonition not to "second-guess" prison administrators.
30
Our cases have established several general principles that inform our evaluation of the constitutionality of the restrictions at issue. First, we have held that convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison. See Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 129, 97 S.Ct. 2532, 2540, 53 L.Ed.2d 629 (1977); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 555-556, 94 S.Ct. 2963, 2974-2975, 41 L.Ed.2d 935 (1974); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). "There is no iron curtain drawn between the Constitution and the prisons of this country." Wolff v. McDonnell, supra, 418 U.S., at 555-556, 94 S.Ct., at 2974-2975. So, for example, our cases have held that sentenced prisoners enjoy freedom of speech and religion under the First and Fourteenth Amendments, see Pell v. Procunier, supra; Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); that they are protected against invidious discrimination on the basis of race under the Equal Protection Clause of the Fourteenth Amendment, see Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968); and that they may claim the protection of the Due Process Clause to prevent additional deprivation of life, liberty, or property without due process of law, see Meachum v. Fano, supra; Wolff v. McDonnell, supra. A fortiori, pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners.
31
But our cases also have insisted on a second proposition: simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948); see Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 125, 97 S.Ct., at 2538; Wolff v. McDonnell, supra, 418 U.S., at 555, 94 S.Ct., at 2974; Pell v. Procunier, supra, 417 U.S., at 822, 94 S.Ct., at 2804. The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights. Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 125, 97 S.Ct., at 2538; Pell v. Procunier, supra, 417 U.S., at 822, 94 S.Ct., at 2804. There must be a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." Wolff v. McDonnell, supra, 418 U.S., at 556, 94 S.Ct., at 2975. This principle applies equally to pretrial detainees and convicted prisoners. A detainee simply does not possess the full range of freedoms of an unincarcerated individual.
32
Third, maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.28 "[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves." Pell v. Procunier, supra, 417 U.S., at 823, 94 S.Ct., at 2804; see Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 129, 97 S.Ct., at 2540; Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 1810, 40 L.Ed.2d 224 (1974). Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security. Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 129, 97 S.Ct., at 2540; Pell v. Procunier, supra, 417 U.S., at 822, 826, 94 S.Ct., at 2804, 2806; Procunier v. Martinez, supra, 416 U.S., at 412-414, 94 S.Ct., at 1810-1812.
33
Finally, as the Court of Appeals correctly acknowledged, the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 128, 97 S.Ct., at 2539; Procunier v. Martinez, supra, 416 U.S., at 404-405, 94 S.Ct., at 1807-1808; Cruz v. Beto, supra, 405 U.S., at 321, 92 S.Ct., at 1081; see Meachum v. Fano, 427 U.S., at 228-229, 96 S.Ct., at 2540-2541.29 "Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Pell v. Procunier, 417 U.S., at 827, 94 S.Ct., at 2806.30 We further observe that, on occasion, prison administrators may be "experts" only by Act of Congress or of a state legislature. But judicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial. Procunier v. Martinez, supra, 416 U.S., at 405, 94 S.Ct., at 1807; cf. Meachum v. Fano, supra, 427 U.S., at 229, 96 S.Ct., at 2540. With these teachings of our cases in mind, we turn to an examination of the MCC security practices that are alleged to violate the Constitution.
34
At the time of the lower courts' decisions, the Bureau of Prisons' "publisher-only" rule, which applies to all Bureau facilities, permitted inmates to receive books and magazines from outside the institution only if the materials were mailed directly from the publisher or a book club. 573 F.2d, at 129-130. The warden of the MCC stated in an affidavit that "serious" security and administrative problems were caused when bound items were received by inmates from unidentified sources outside the facility. App. 24. He noted that in order to make a "proper and thorough" inspection of such items, prison officials would have to remove the covers of hardback books and to leaf through every page of all books and magazines to ensure that drugs, money, weapons, or other contraband were not secreted in the material. "This search process would take a substantial and inordinate amount of available staff time." Ibid. However, "there is relatively little risk that material received directly from a publisher or book club would contain contraband, and therefore, the security problems are significantly reduced without a drastic drain on staff resources." Ibid.
35
The Court of Appeals rejected these security and administrative justifications and affirmed the District Court's order enjoining enforcement of the "publisher-only" rule at the MCC. The Court of Appeals held that the rule "severely and impermissibly restricts the reading material available to inmates" and therefore violates their First Amendment and due process rights. 573 F.2d, at 130.
36
It is desirable at this point to place in focus the precise question that now is before this Court. Subsequent to the decision of the Court of Appeals, the Bureau of Prisons amended its "publisher-only" rule to permit the receipt of books and magazines from bookstores as well as publishers and book clubs. 43 Fed.Reg. 30576 (1978) (to be codified in 28 CFR § 540.71). In addition, petitioners have informed the Court that the Bureau proposes to amend the rule further to allow receipt of paperback books, magazines, and other soft-covered materials from any source. Brief for Petitioners 66 n. 49, 69, and n. 51. The Bureau regards hardback books as the "more dangerous source of risk to institutional security," however, and intends to retain the prohibition against receipt of hardback books unless they are mailed directly from publishers, book clubs, or bookstores. Id. at 69 n. 51. Accordingly, petitioners request this Court to review the District Court's injunction only to the extent it enjoins petitioners from prohibiting receipt of hard-cover books that are not mailed directly from publishers, book clubs, or bookstores. Id., at 69; Tr. of Oral Arg. 59-60.31
37
We conclude that a prohibition against receipt of hardback books unless mailed directly from publishers, book clubs, or bookstores does not violate the First Amendment rights of MCC inmates. That limited restriction is a rational response by prison officials to an obvious security problem. It hardly needs to be emphasized that hardback books are especially serviceable for smuggling contraband into an institution; money, drugs, and weapons easily may be secreted in the bindings. E. g., Woods v. Daggett, 541 F.2d 237 (CA10 1976).32 They also are difficult to search effectively. There is simply no evidence in the record to indicate that MCC officials have exaggerated their response to this security problem and to the administrative difficulties posed by the necessity of carefully inspecting each book mailed from unidentified sources. Therefore, the considered judgment of these experts must control in the absence of prohibitions far more sweeping than those involved here. See Jones v. North Carolina Prisoners' Labor Union, 433 U.S., at 128, 97 S.Ct., at 2539; Pell v. Procunier, 417 U.S., at 827, 94 S.Ct., at 2806.
38
Our conclusion that this limited restriction on receipt of hardback books does not infringe the First Amendment rights of MCC inmates is influenced by several other factors. The rule operates in a neutral fashion, without regard to the content of the expression. Id., at 828, 94 S.Ct., at 2807. And there are alternative means of obtaining reading material that have not been shown to be burdensome or insufficient. "[W]e regard the available 'alternative means of [communication as] a relevant factor' in a case such as this where 'we [are] called upon to balance First Amendment rights against [legitimate] governmental . . . interests.' " Id., at 824, 94 S.Ct., at 2805, quotingKleindienst v. Mandel, 408 U.S. 753, 765, 92 S.Ct. 2576, 2582, 33 L.Ed.2d 683 (1972); see Cruz v. Beto, 405 U.S., at 321, 322 n. 2, 92 S.Ct., at 1081, 1082 n. 2. The restriction, as it is now before us, allows soft-bound books and magazines to be received from any source and hardback books to be received from publishers, bookstores, and book clubs. In addition, the MCC has a "relatively large" library for use by inmates. United States ex rel. Wolfish v. United States, 428 F.Supp., at 340.33 To the limited extent the rule might possibly increase the cost of obtaining published materials, this Court has held that where "other avenues" remain available for the receipt of materials by inmates, the loss of "cost advantages does not fundamentally implicate free speech values." See Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 130-131, 97 S.Ct., at 2540-2541. We are also influenced in our decision by the fact that the rule's impact on pretrial detainees is limited to a maximum period of approximately 60 days. See n. 3, supra. In sum, considering all the circumstances, we view the rule, as we now find it, to be a "reasonable 'time, place and manner' regulatio[n that is] necessary to further significant governmental interests . . . ." Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972); seeCox v. New Hampshire, 312 U.S. 569, 575-576, 61 S.Ct. 762, 765-766, 85 L.Ed. 1049 (1941); Cox v. Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 464-465, 13 L.Ed.2d 471 (1965); Adderley v. Florida, 385 U.S. 39, 46-48, 87 S.Ct. 242, 246-248, 17 L.Ed.2d 149 (1966).
B
39
Inmates at the MCC were not permitted to receive packages from outside the facility containing items of food or personal property, except for one package of food at Christmas. This rule was justified by MCC officials on three grounds. First, officials testified to "serious" security problems that arise from the introduction of such packages into the institution, the "traditional file in the cake kind of situation" as well as the concealment of drugs "in heels of shoes [and] seams of clothing." App. 80; see id., at 24, 84-85. As in the case of the "publisher-only" rule, the warden testified that if such packages were allowed, the inspection process necessary to ensure the security of the institution would require a "substantial and inordinate amount of available staff time." Id., at 24. Second, officials were concerned that the introduction of personal property into the facility would increase the risk of thefts, gambling, and inmate conflicts, the "age-old problem of you have it and I don't." Id., at 80; see id., at 85. Finally, they noted storage and sanitary problems that would result from inmates' receipt of food packages. Id., at 67, 80. Inmates are permitted, however, to purchase certain items of food and personal property from the MCC commissary.34
40
The District Court dismissed these justifications as "dire predictions." It was unconvinced by the asserted security problems because other institutions allow greater ownership of personal property and receipt of packages than does the MCC. And because the MCC permitted inmates to purchase items in the commissary, the court could not accept official fears of increased theft, gambling, or conflicts if packages were allowed. Finally, it believed that sanitation could be assured by proper housekeeping regulations. Accordingly, it ordered the MCC to promulgate regulations to permit receipt of at least items of the kind that are available in the commissary. 439 F.Supp., at 152-153. The Court of Appeals accepted the District Court's analysis and affirmed, although it noted that the MCC could place a ceiling on the permissible dollar value of goods received and restrict the number of packages. 573 F.2d, at 132.
41
Neither the District Court nor the Court of Appeals identified which provision of the Constitution was violated by this MCC restriction. We assume, for present purposes, that their decisions were based on the Due Process Clause of the Fifth Amendment, which provides protection for convicted prisoners and pretrial detainees alike against the deprivation of their property without due process of law. See supra, at 545. But as we have stated, these due process rights of prisoners and pretrial detainees are not absolute; they are subject to reasonable limitation or retraction in light of the legitimate security concerns of the institution.
42
We think that the District Court and the Court of Appeals have trenched too cavalierly into areas that are properly the concern of MCC officials. It is plain from their opinions that the lower courts simply disagreed with the judgment of MCC officials about the extent of the security interests affected and the means required to further those interests. But our decisions have time and again emphasized that this sort of unguided substitution of judicial judgment for that of the expert prison administrators on matters such as this is inappropriate. See Jones v. North Carolina Prisoners' Labor Union; Pell v. Procunier; Procunier v. Martinez. We do not doubt that the rule devised by the District Court and modified by the Court of Appeals may be a reasonable way of coping with the problems of security, order, and sanitation. It simply is not, however, the only constitutionally permissible approach to these problems. Certainly, the Due Process Clause does not mandate a "lowest common denominator" security standard, whereby a practice permitted at one penal institution must be permitted at all institutions.
43
Corrections officials concluded that permitting the introduction of packages of personal property and food would increase the risks of gambling, theft, and inmate fights over that which the institution already experienced by permitting certain items to be purchased from its commissary. "It is enough to say that they have not been conclusively shown to be wrong in this view." Jones v. North Carolina Prisoners' Labor Union, 433 U.S., at 132, 97 S.Ct., at 2542. It is also all too obvious that such packages are handy devices for the smuggling of contraband. There simply is no basis in this record for concluding that MCC officials have exaggerated their response to these serious problems or that this restriction is irrational. It does not therefore deprive the convicted inmates or pretrial detainees35 of the MCC of their property without due process of law in contravention of the Fifth Amendment.
C
44
The MCC staff conducts unannounced searches of inmate living areas at irregular intervals. These searches generally are formal unit "shakedowns" during which all inmates are cleared of the residential units, and a team of guards searches each room. Prior to the District Court's order, inmates were not permitted to watch the searches. Officials testified that permitting inmates to observe room inspections would lead to friction between the inmates and security guards and would allow the inmates to attempt to frustrate the search by distracting personnel and moving contraband from one room to another ahead of the search team.36
45
The District Court held that this procedure could not stand as applied to pretrial detainees because MCC officials had not shown that the restriction was justified by "compelling necessity."37 The court stated that "[a]t least until or unless [petitioners] can show a pattern of violence or other disruptions taxing the powers of control—a kind of showing not remotely approached by the Warden's expressions—the security argument for banishing inmates while their rooms are searched must be rejected." 439 F.Supp., at 149. It also noted that in many instances inmates suspected guards of thievery. Id., at 148-149. The Court of Appeals agreed with the District Court. It saw "no reason whatsoever not to permit a detainee to observe the search of his room and belongings from a reasonable distance," although the court permitted the removal of any detainee who became "obstructive." 573 F.2d, at 132.
46
The Court of Appeals did not identify the constitutional provision on which it relied in invalidating the room-search rule. The District Court stated that the rule infringed the detainee's interest in privacy and indicated that this interest in privacy was founded on the Fourth Amendment. 439 F.Supp., at 149-150. It may well be argued that a person confined in a detention facility has no reasonable expectation of privacy with respect to his room or cell and that therefore the Fourth Amendment provides no protection for such a person. Cf. Lanza v. New York, 370 U.S. 139, 143-144, 82 S.Ct. 1218, 1220-1221, 8 L.Ed.2d 384 (1962). In any case, given the realities of institutional confinement, any reasonable expectation of privacy that a detainee retained necessarily would be of a diminished scope. Id., at 143, 82 S.Ct., at 1220. Assuming, arguendo, that a pretrial detainee retains such a diminished expectation of privacy after commitment to a custodial facility, we nonetheless find that the room-search rule does not violate the Fourth Amendment.
47
It is difficult to see how the detainee's interest in privacy is infringed by the room-search rule. No one can rationally doubt that room searches represent an appropriate security measure and neither the District Court nor the Court of Appeals prohibited such searches. And even the most zealous advocate of prisoners' rights would not suggest that a warrant is required to conduct such a search. Detainees' drawers, beds, and personal items may be searched, even after the lower courts' rulings. Permitting detainees to observe the searches does not lessen the invasion of their privacy; its only conceivable beneficial effect would be to prevent theft or misuse by those conducting the search. The room-search rule simply facilitates the safe and effective performance of the search which all concede may be conducted. The rule itself, then, does not render the searches "unreasonable" within the meaning of the Fourth Amendment.38
D
48
Inmates at all Bureau of Prison facilities, including the MCC, are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution.39 Corrections officials testified that visual cavity searches were necessary not only to discover but also to deter the smuggling of weapons, drugs, and other contraband into the institution. App. 70-72, 83-84. The District Court upheld the strip-search procedure but prohibited the body-cavity searches, absent probable cause to believe that the inmate is concealing contraband. 439 F.Supp., at 147-148. Because petitioners proved only one instance in the MCC's short history where contraband was found during a body-cavity search, the Court of Appeals affirmed. In its view, the "gross violation of personal privacy inherent in such a search cannot be outweighed by the government's security interest in maintaining a practice of so little actual utility." 573 F.2d, at 131.
49
Admittedly, this practice instinctively gives us the most pause. However, assuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, see Lanza v. New York, supra; Stroud v. United States, 251 U.S. 15, 21, 40 S.Ct. 50, 52, 64 L.Ed. 103 (1919), we nonetheless conclude that these searches do not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches, Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925), and under the circumstances, we do not believe that these searches are unreasonable.
50
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. E. g., United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record, App. 71-76, and in other cases. E. g., Ferraro v. United States, 590 F.2d 335 (CA6 1978); United States v. Park, 521 F.2d 1381, 1382 (CA9 1975). That there has been only one instance where an MCC inmate was discovered attempting to smuggle contraband into the institution on his person may be more a testament to the effectiveness of this search technique as a deterrent than to any lack of interest on the part of the inmates to secrete and import such items when the opportunity arises.40
51
We do not underestimate the degree to which these searches may invade the personal privacy of inmates. Nor do we doubt, as the District Court noted, that on occasion a security guard may conduct the search in an abusive fashion. 439 F.Supp., at 147. Such an abuse cannot be condoned. The searches must be conducted in a reasonable manner. Schmerber v. California, supra, 384 U.S. at 771-772, 86 S.Ct. at 1836-1837. But we deal here with the question whether visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.41
IV
52
Nor do we think that the four MCC security restrictions and practices described in Part III, supra, constitute "punishment" in violation of the rights of pretrial detainees under the Due Process Clause of the Fifth Amendment.42 Neither the District Court nor the Court of Appeals suggested that these restrictions and practices were employed by MCC officials with an intent to punish the pretrial detainees housed there.43 Respondents do not even make such a suggestion; they simply argue that the restrictions were greater than necessary to satisfy petitioners' legitimate interest in maintaining security. Brief for Respondents 51-53. Therefore, the determination whether these restrictions and practices constitute punishment in the constitutional sense depends on whether they are rationally related to a legitimate nonpunitive governmental purpose and whether they appear excessive in relation to that purpose. See supra, at 538-539. Ensuring security and order at the institution is a permissible nonpunitive objective, whether the facility houses pretrial detainees, convicted inmates, or both. Supra, at 539-540; see supra, at 546-547, and n. 28. For the reasons set forth in Part III,supra, we think that these particular restrictions and practices were reasonable responses by MCC officials to legitimate security concerns. Respondents simply have not met their heavy burden of showing that these officials have exaggerated their response to the genuine security considerations that actuated these restrictions and practices. See n. 23,supra. And as might be expected of restrictions applicable to pretrial detainees, these restrictions were of only limited duration so far as the MCC pretrial detainees were concerned. See n. 3, supra.
V
53
There was a time not too long ago when the federal judiciary took a completely "hands-off" approach to the problem of prison administration. In recent years, however, these courts largely have discarded this "hands-off" attitude and have waded into this complex arena. The deplorable conditions and Draconian restrictions of some of our Nation's prisons are too well known to require recounting here, and the federal courts rightly have condemned these sordid aspects of our prison systems. But many of these same courts have, in the name of the Constitution, become increasingly enmeshed in the minutiae of prison operations. Judges, after all, are human. They, no less than others in our society, have a natural tendency to believe that their individual solutions to often intractable problems are better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination. But under the Constitution, the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan. This does not mean that constitutional rights are not to be scrupulously observed. It does mean, however, that the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution or, in the case of a federal prison, a statute. The wide range of "judgment calls" that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government.
54
The judgment of the Court of Appeals is, accordingly, reversed, and the case is remanded for proceedings consistent with this opinion.
55
It is so ordered.
56
Mr. Justice POWELL, concurring in part and dissenting in part.
57
I join the opinion of the Court except the discussion and holding with respect to body-cavity searches. In view of the serious intrusion on one's privacy occasioned by such a search, I think at least some level of cause, such as a reasonable suspicion, should be required to justify the anal and genital searches described in this case. I therefore dissent on this issue.
58
Mr. Justice MARSHALL, dissenting.
59
The Court holds that the Government may burden pretrial detainees with almost any restriction, provided detention officials do not proclaim a punitive intent or impose conditions that are "arbitrary or purposeless." Ante, at 539. As if this standard were not sufficiently ineffectual, the Court dilutes it further by according virtually unlimited deference to detention officials' justifications for particular impositions. Conspicuously lacking from this analysis is any meaningful consideration of the most relevant factor, the impact that restrictions may have on inmates. Such an approach is unsupportable, given that all of these detainees are presumptively innocent and many are confined solely because they cannot afford bail.1
60
In my view, the Court's holding departs from the precedent it purports to follow and precludes effective judicial review of the conditions of pretrial confinement. More fundamentally, I believe the proper inquiry in this context is not whether a particular restraint can be labeled "punishment." Rather, as with other due process challenges, the inquiry should be whether the governmental interests served by any given restriction outweigh the individual deprivations suffered.
61
* The premise of the Court's analysis is that detainees, unlike prisoners, may not be "punished." To determine when a particular disability imposed during pretrial detention is punishment, the Court invokes the factors enunciated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), quoted ante, at 537-538 (footnotes omitted):
62
"Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions."
63
A number of the factors enunciated above focus on the nature and severity of the impositions at issue. Thus, if weight were given to all its elements, I believe the Mendoza-Martinez inquiry could be responsive to the impact of the deprivations imposed on detainees. However, within a few lines after quoting Mendoza-Martinez, the Court restates the standard as whether there is an expressed punitive intent on the part of detention officials, and, if not, whether the restriction is rationally related to some nonpunitive purpose or appears excessive in relation to that purpose. Ante, at 538-539. Absent from the reformulation is any appraisal of whether the sanction constitutes an affirmative disability or restraint and whether it has historically been regarded as punishment. Moreover, when the Court applies this standard, it loses interest in the inquiry concerning excessiveness, and, indeed, eschews consideration of less restrictive alternatives, practices in other detention facilities, and the recommendations of the Justice Department and professional organizations. See ante, at 542-543, n. 25, 543-544, n. 27, 554. By this process of elimination, the Court contracts a broad standard, sensitive to the deprivations imposed on detainees, into one that seeks merely to sanitize official motives and prohibit irrational behavior. As thus reformulated, the test lacks any real content.
A.
64
To make detention officials' intent the critical factor in assessing the constitutionality of impositions on detainees is unrealistic in the extreme. The cases on which the Court relies to justify this narrow focus all involve legislative Acts, not day-to-day administrative decisions. See Kennedy v. Mendoza-Martinez, supra (Nationality Act of 1940 and Immigration and Nationality Act of 1952); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) (Social Security Act); De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (New York Waterfront Commission Act). In discerning the intent behind a statutory enactment, courts engage in a familiar judicial function, usually with the benefit of a legislative history that preceded passage of the statute. The motivation for policies in detention facilities, however, will frequently not be a matter of public record. Detainees challenging these policies will therefore bear the substantial burden of establishing punitive intent on the basis of circumstantial evidence or retrospective explanations by detention officials, which frequently may be self-serving. Particularly since the Court seems unwilling to look behind any justification based on security,2 that burden will usually prove insurmountable.
65
In any event, it will often be the case that officials believe, erroneously but in good faith, that a specific restriction is necessary for institutional security. As the District Court noted, "zeal for security is among the most common varieties of official excess," United States ex rel. Wolfish v. Levi, 439 F.Supp. 114, 141 (SDNY 1977), and the litigation in this area corroborates that conclusion.3 A standard that focuses on punitive intent cannot effectively eliminate this excess. Indeed, the Court does not even attempt to "detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention." Ante, at 540. Rather, it is content merely to recognize that "the effective management of the detention facility . . . is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment." Ibid.
66
Moreover, even if the inquiry the Court pursues were more productive, it simply is not the one the Constitution mandates here. By its terms, the Due Process Clause focuses on the nature of deprivations, not on the persons inflicting them. If this concern is to be vindicated, it is the effect of conditions of confinement, not the intent behind them, that must be the focal point of constitutional analysis.
B
67
Although the Court professes to go beyond the direct inquiry regarding intent and to determine whether a particular imposition is rationally related to a nonpunitive purpose, this exercise is at best a formality. Almost any restriction on detainees, including, as the Court concedes, chains and shackles, ante, at 593 n. 20, can be found to have some rational relation to institutional security, or more broadly, to "the effective management of the detention facility." Ante, at 540. See Feeley v. Sampson, 570 F.2d 364, 380 (CA1 1977) (Coffin, C. J., dissenting). Yet this toothless standard applies irrespective of the excessiveness of the restraint or the nature of the rights infringed.4
68
Moreover, the Court has not in fact reviewed the rationality of detention officials' decisions, as Mendoza-Martinez requires. Instead, the majority affords "wide-ranging" deference to those officials "in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Ante, at 547.5 Reasoning that security considerations in jails are little different than in prisons, the Court concludes that cases requiring substantial deference to prison administrators' determinations on security-related issues are equally applicable in the present context. Ante, at 546-547, nn. 28, 29.
69
Yet, as the Court implicitly acknowledges, ante, at 545, the rights of detainees, who have not been adjudicated guilty of a crime, are necessarily more extensive than those of prisoners "who have been found to have violated one or more of the criminal laws established by society for its orderly governance." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 129, 97 S.Ct. 2532, 2540, 53 L.Ed.2d 629 (1977). See Campbell v. McGruder, 188 U.S.App.D.C. 258, 264 n. 9, 580 F.2d 521, 527 n. 9 (1978). Judicial tolerance of substantial impositions on detainees must be concomitantly less. However, by blindly deferring to administrative judgments on the rational basis for particular restrictions, the Court effectively delegates to detention officials the decision whether pretrial detainees have been punished. This, in my view, is an abdication of an unquestionably judicial function.
II
70
Even had the Court properly applied the punishment test, I could not agree to its use in this context. It simply does not advance analysis to determine whether a given deprivation imposed on detainees constitutes "punishment." For in terms of the nature of the imposition and the impact on detainees, pretrial incarceration, although necessary to secure defendants' presence at trial, is essentially indistinguishable from punishment.6 The detainee is involuntarily confined and deprived of the freedom "to be with his family and friends and to form the other enduring attachments of normal life," Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Indeed, this Court has previously recognized that incarceration is an "infamous punishment." Flemming v. Nestor, 363 U.S., at 617, 80 S.Ct., at 1376; see also Wong Wing v. United States, 163 U.S. 228, 233-234, 16 S.Ct. 977, 979, 41 L.Ed. 140 (1896); Ingraham v. Wright, 430 U.S. 651, 669, 97 S.Ct. 1401, 1411, 51 L.Ed.2d 711 (1977). And if the effect of incarceration itself is inevitably punitive, so too must be the cumulative impact of those restraints incident to that restraint.7
71
A test that balances the deprivations involved against the state interests assertedly served8 would be more consistent with the import of the Due Process Clause. Such an approach would be sensitive to the tangible physical and psychological harm that a particular disability inflicts on detainees and to the nature of the less tangible, but significant, individual interests at stake. The greater the imposition on detainees, the heavier the burden of justification the Government would bear. See Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969); Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S.Ct. 303, 308-309, 38 L.Ed.2d 260 (1973).
72
When assessing the restrictions on detainees, we must consider the cumulative impact of restraints imposed during confinement. Incarceration of itself clearly represents a profound infringement of liberty, and each additional imposition increases the severity of that initial deprivation. Since any restraint thus has a serious effect on detainees, I believe the Government must bear a more rigorous burden of justification than the rational-basis standard mandates. See, supra, at 567. At a minimum, I would require a showing that a restriction is substantially necessary to jail administration. Where the imposition is of particular gravity, that is, where it implicates interests of fundamental importance9 or inflicts significant harms, the Government should demonstrate that the restriction serves a compelling necessity of jail administration.10
73
In presenting its justifications, the Government could adduce evidence of the security and administrative needs of the institution as well as the fiscal constraints under which it operates. And, of course, considerations of competence and comity require some measure of deference to the judgments of detention officials. Their estimation of institutional needs and the administrative consequences of particular acts is entitled to weight. But as the Court has repeatedly held in the prison context, judicial restraint "cannot encompass any failure to take cognizance of valid constitutional claims." Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974); Bounds v. Smith, 430 U.S. 817, 832, 97 S.Ct. 1491, 1500, 52 L.Ed.2d 72 (1977). Even more so here, with the rights of presumptively innocent individuals at stake, we cannot abdicate our judicial responsibility to evaluate independently the Government's asserted justifications for particular deprivations. In undertaking this evaluation, courts should thus examine evidence of practices in other detention and penal facilities. To be sure, conditions of detention should not survive constitutional challenge merely because they are no worse than circumstances in prisons. But this evidence can assist courts in evaluating justifications based on security, administrative convenience, and fiscal constraints.
74
Simply stated, the approach I advocate here weighs the detainees' interests implicated by a particular restriction against the governmental interests the restriction serves. As the substantiality of the intrusion on detainees' rights increases, so must the significance of the countervailing governmental objectives.
III
A.
75
Applying this standard to the facts of this case, I believe a remand is necessary on the issue of double-bunking at the MCC. The courts below determined only whether double-bunking was justified by a compelling necessity, excluding fiscal and administrative considerations. Since it was readily ascertainable that the Government could not prevail under that test detailed inquiry was unnecessary. Thus, the District Court granted summary judgment, without a full record on the psychological and physical harms caused by overcrowding.11 To conclude, as the court does here, that double-bunking has not inflicted "genuine privations and hardship over an extended period of time," ante, at 542, is inappropriate where respondents have not had an adequate opportunity to produce evidence suggesting otherwise. Moreover, that the District Court discerned no disputed issues of material fact, see ante, at 541 n. 24, is no justification for avoiding a remand, since what is material necessarily varies with the standard applied. Rather than pronouncing overbroad aphorisms about the principles "lurking in the Due Process Clause," ante, at 542, I would leave to the District Court in the first instance the sensitive balancing inquiry that the Due Process Clause dictates.12
B
76
Although the constitutionality of the MCC's rule limiting the sources of hardback books was also decided on summary judgment, I believe a remand is unnecessary.13 That individuals have a fundamental First Amendment right to receive information and ideas is beyond dispute. See Martin v. Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943); Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 542 (1969); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969); see also Brandenburg v. Ohio, 395 U.S. 444, 448, 89 S.Ct. 1827, 1830, 23 L.Ed.2d 430 (1969). Under the balancing test elaborated above, the Government must therefore demonstrate that its rule infringing on that interest serves a compelling necessity. As the courts below found, the Government failed to make such a showing.14
77
In support of its restriction, the Government presented the affidavit of the MCC warden, who averred without elaboration that a proper and thorough search of incoming hardback books might require removal of the covers. Further, the warden asserted, "in the case of all books and magazines," it would be necessary to leaf through every page to ascertain that there was no contraband. App. 24. The warden offered no reasons why the institution could not place reasonable limitations on the number of books inmates could receive or use electronic devices and fluoroscopes to detect contraband rather than requiring inmates to purchase hardback books directly from publishers or stores.15 As the Court of Appeals noted, "other institutions have not recorded untoward experiences with far less restrictive rules." Wolfish v. Levi, 573 F.2d 118, 130 (1978).
78
The limitation on receipt of hardback books may well be one rational response to the legitimate security concerns of the institution, concerns which I in no way intend to deprecate. But our precedents, as the courts below apparently recognized, United States ex rel. Wolfish v. United States, 428 F.Supp. 333, 341 (SDNY 1977); 573 F.2d, at 130, require some consideration of less restrictive alternatives, see, e. g., Shelton v. Tucker, 364 U.S. 479, 488-490, 81 S.Ct. 247, 252-253, 5 L.Ed.2d 231 (1960); Keyishian v. Board of Regents, 385 U.S. 589, 602-604, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967). There is no basis for relaxing this requirement when the rights of presumptively innocent detainees are implicated.
C
79
The District Court did conduct a trial on the constitutionality of the MCC package rule and room-search practices. Although the courts below applied a different standard, the record is sufficient to permit resolution of these issues here. And since this Court decides the questions, I think it appropriate to suggest the results that would obtain on this record under my standard.
80
Denial of the right to possess property is surely of heightened concern when viewed with the other indignities of detainment. See App. 73. As the District Court observed, it is a severe discomfort to do without personal items such as a watch or cosmetics, and things to eat, smoke, or chew. Indeed, the court noted, "[t]he strong dependence upon material things . . . gives rise to one of the deepest miseries of incarceration—the deprivation of familiar possessions." 439 F.Supp., at 150. Given this impact on detainees, the appropriate inquiry is whether the package restriction is substantially necessary to prison administration.
81
The Government's justification for such a broad rule cannot meet this burden. The asserted interest in ameliorating sanitation and storage problems and avoiding thefts, gambling, and inmate conflicts over personal property is belied, as the Court seems to recognize, ante, at 553, by the policy of permitting inmate purchases of up to $15 a week from the prison commissary. Detention officials doubtless have a legitimate interest in preventing introduction of drugs or weapons into the facility. But as both the District Court and the Court of Appeals observed, other detention institutions have adopted much less restrictive regulations than the MCC's governing receipt of packages. See, e. g., Miller v. Carson, 401 F.Supp. 835, 885 (MD Fla.1975), aff'd, 563 F.2d 741 (CA5 1977); Giampetruzzi v. Malcolm, 406 F.Supp. 836, 842 (SDNY 1975). Inmates in New York state institutions, for example, may receive a 35-pound package each month, as well as clothing and magazines. See 439 F.Supp., at 152.16
82
To be sure, practices in other institutions do not necessarily demarcate the constitutional minimum. See ante, at 554. But such evidence does cast doubt upon the Government's justifications based on institutional security and administrative convenience. The District Court held that the Government was obligated to dispel these doubts. The court thus required a reasoned showing why "there must be deprivations at the MCC so much harsher than deemed necessary in other institutions." 439 F.Supp., at 152. Absent such a showing, the court concluded that the MCC's rule swept too broadly and ordered detention officials to formulate a suitable alternative, at least with respect to items available from the commissary. Id., at 153. This holding seems an appropriate accommodation of the competing interests and a minimal intrusion on administrative prerogatives.
83
I would also affirm the ruling of the courts below that inmates must be permitted to observe searches of their cells. Routine searches such as those at issue here may be an unavoidable incident of incarceration. Nonetheless, the protections of the Fourth Amendment do not lapse at the jailhouse door, Bonner v. Coughlin, 517 F.2d 1311, 1316-1317 (CA7 1975) (Stevens, J.); United States v. Lilly, 576 F.2d 1240, 1244-1245 (CA5 1978). Detention officials must therefore conduct such searches in a reasonable manner, avoiding needless intrusions on inmates' privacy. Because unobserved searches may invite official disrespect for detainees' few possessions and generate fears that guards will steal personal property or plant contraband, see 439 F.Supp., at 148-149, the inmates' interests are significant.
84
The Government argues that allowing detainees to observe official searches would lead to violent confrontations and enable inmates to remove or conceal contraband. However, the District Court found that the Government had not substantiated these security concerns and that there were less intrusive means available to accomplish the institution's objectives. Ibid. Thus, this record does not establish that unobserved searches are substantially necessary to jail administration.
D
85
In my view, the body-cavity searches of MCC inmates represent one of the most grievous offenses against personal dignity and common decency. After every contact visit with someone from outside the facility, including defense attorneys, an inmate must remove all of his or her clothing, bend over, spread the buttocks, and display the anal cavity for inspection by a correctional officer. Women inmates must assume a suitable posture for vaginal inspection, while men must raise their genitals. And, as the Court neglects to note, because of time pressures, this humiliating spectacle is frequently conducted in the presence of other inmates. App. 77.
86
The District Court found that the stripping was "unpleasant, embarrassing, and humiliating." 439 F.Supp., at 146. A psychiatrist testified that the practice placed inmates in the most degrading position possible, App. 48, a conclusion amply corroborated by the testimony of the inmates themselves. Id., at 36-37, 41.17 There was evidence, moreover, that these searches engendered among detainees fears of sexual assault, id., at 49, were the occasion for actual threats of physical abuse by guards, and caused some inmates to forgo personal visits. 439 F.Supp., at 147.
87
Not surprisingly, the Government asserts a security justification for such inspections. These searches are necessary, it argues, to prevent inmates from smuggling contraband into the facility. In crediting this justification despite the contrary findings of the two courts below, the Court overlooks the critical facts. As respondents point out, inmates are required to wear one-piece jumpsuits with zippers in the front. To insert an object into the vaginal or anal cavity, an inmate would have to remove the jumpsuit, at least from the upper torso. App. 45; Joint App. in Nos. 77-2035, 77-2135 (CA 2), p. 925 (hereinafter Joint App.). Since contact visits occur in a glass-enclosed room and are continuously monitored by corrections officers, see 439 F.Supp., at 140, 147; Joint App. 144, 1208-1209,18 such a feat would seem extraordinarily difficult. There was medical testimony, moreover, that inserting an object into the rectum is painful and "would require time and opportunity which is not available in the visiting areas." App. 49-50, and that visual inspection would probably not detect an object once inserted. Id., at 50. Additionally, before entering the visiting room, visitors and their packages are searched thoroughly by a metal detector, fluoroscope, and by hand. Id., at 93; Joint App. 601, 1077. Correction officers may require that visitors leave packages or handbags with guards until the visit is over. Joint App. 1077-1078. Only by blinding itself to the facts presented on this record can the Court accept the Government's security rationale.
88
Without question, these searches are an imposition of sufficient gravity to invoke the compelling-necessity standard. It is equally indisputable that they cannot meet that standard. Indeed, the procedure is so unnecessarily degrading that it "shocks the conscience." Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). Even in Rochin, the police had reason to believe that the petitioner had swallowed contraband. Here, the searches are employed absent any suspicion of wrongdoing. It was this aspect of the MCC practice that the Court of Appeals redressed, requiring that searches be conducted only when there is probable cause to believe that the inmate is concealing contraband. The Due Process Clause, on any principled reading, dictates no less.
89
That the Court can uphold these indiscriminate searches highlights the bankruptcy of its basic analysis. Under the test adopted today, the rights of detainees apparently extend only so far as detention officials decide that cost and security will permit. Such unthinking deference to administrative convenience cannot be justified where the interests at stake are those of presumptively innocent individuals, many of whose only proven offense is the inability to afford bail. I dissent.
90
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN joins, dissenting.
91
This is not an equal protection case.1 An empirical judgment that most persons formally accused of criminal conduct are probably guilty would provide a rational basis for a set of rules that treat them like convicts until they establish their innocence. No matter how rational such an approach might be—no matter how acceptable in a community where equality of status is the dominant goal—it is obnoxious to the concept of individual freedom protected by the Due Process Clause. If ever accepted in this country, it would work a fundamental change in the character of our free society.
92
Nor is this an Eighth Amendment case.2 That provision of the Constitution protects individuals convicted of crimes from punishment that is cruel and unusual. The pretrial detainees whose rights are at stake in this case, however, are innocent men and women who have been convicted of no crimes. Their claim is not that they have been subjected to cruel and unusual punishment in violation of the Eighth Amendment, but that to subject them to any form of punishment at all is an unconstitutional deprivation of their liberty.
93
This is a due process case.3 The most significant—and I venture to suggest the most enduring—part of the Court's opinion today is its recognition of this initial constitutional premise. The Court squarely holds that "under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law."4 Ante, at 535.
94
This right to be free of punishment is not expressly embodied in any provision in the Bill of Rights. Nor is the source of this right found in any statute. The source of this fundamental freedom is the word "liberty" itself as used in the Due Process Clause, and as informed by "history, reason, the past course of decisions," and the judgment and experience of "those whom the Constitution entrusted" with interpreting that word. Anti-Fascist Committee v. McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 643-644, 95 L.Ed. 817 (Frankfurter, J., concurring). See Leis v. Flynt, 439 U.S. 438, 457, 99 S.Ct. 698, 708, 58 L.Ed.2d 717 (STEVENS, J., dissenting).
95
In my opinion, this latter proposition is obvious and indisputable.5 Nonetheless, it is worthy of emphasis because the Court has now accepted it in principle. Ante, at 535. In recent years, the Court has mistakenly implied that the concept of liberty encompasses only those rights that are either created by statute or regulation or are protected by an express provision of the Bill of Rights.6 Today, however, without the help of any statute, regulation, or express provision of the Constitution, the Court has derived the innocent person's right not to be punished from the Due Process Clause itself. It has accordingly abandoned its parsimonious definition of the "liberty" protected by the majestic words of the Clause. I concur in that abandonment. It is with regard to the scope of this fundamental right that we part company.
96
* Some of the individuals housed in the Metropolitan Correction Center (MCC) are convicted criminals.7 As to them, detention may legitimately serve a punitive goal, and there is strong reason, even apart from the rules challenged here, to suggest that it does.8 But the same is not true of the detainees who are also housed there and whose rights we are called upon to address. Notwithstanding the impression created by the Court's opinion, see, e. g., ante, at 562, these people are not "prisoners":9 they have not been convicted of any crimes, and their detention may serve only a more limited, regulatory purpose.10 See Houchins v. KQED, Inc., 438 U.S. 1, 37-38, 98 S.Ct. 2588, 2608-2609, 57 L.Ed.2d 553 (STEVENS, J., dissenting).
97
Prior to conviction every individual is entitled to the benefit of a presumption both that he is innocent of prior criminal conduct and that he has no present intention to commit any offense in the immediate future.11 That presumption does not imply that he may not be detained or otherwise subjected to restraints on the basis of an individual showing of probable cause that he poses relevant risks to the community. For our system of justice has always and quite properly functioned on the assumption that probable cause to believe (1) that a person has committed a crime, and (2) that absent the posting of bail he poses at least some risk of flight,12 justifies pretrial detention to ensure his presence at trial.13
98
The fact that an individual may be unable to pay for a bail bond, however, is an insufficient reason for subjecting him to indignities that would be appropriate punishment for convicted felons. Nor can he be subject on that basis to onerous restraints that might properly be considered regulatory with respect to particularly obstreperous or dangerous arrestees. An innocent man who has no propensity toward immediate violence, escape, or subversion may not be dumped into a pool of second-class citizens and subjected to restraints designed to regulate others who have. For him, such treatment amounts to punishment. And because the due process guarantee is individual and personal, it mandates that an innocent person be treated as an individual human being and be free of treatment which, as to him, is punishment.14
99
It is not always easy to determine whether a particular restraint serves the legitimate, regulatory goal of ensuring a detainee's presence at trial and his safety and security in the meantime, or the unlawful end of punishment. But the courts have performed that task in the past, and can and should continue to perform it in the future. Having recognized the constitutional right to be free of punishment, the Court may not point to the difficulty of the task as a justification for confining the scope of the punishment concept so narrowly that it effectively abdicates to correction officials the judicial responsibility to enforce the guarantees of due process.
100
In addressing the constitutionality of the rules at issue in this case, the Court seems to say that as long as the correction officers are not motivated by "an expressed intent to punish" their wards, ante, at 538, and as long as their rules are not "arbitrary or purposeless," ante, at 539, these rules are an acceptable form of regulation and not punishment. Lest that test be too exacting, the Court abjectly defers to the prison administrator unless his conclusions are " 'conclusively shown to be wrong.' " Ante, at 555, quotingJones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 132, 97 S.Ct. 2532, 2541, 53 L.Ed.2d 629.15
101
Applying this test, the Court concludes that enforcement of the challenged restrictions does not constitute punishment because there is no showing of a subjective intent to punish and there is a rational basis for each of the challenged rules. In my view, the Court has reached an untenable conclusion because its test for punishment is unduly permissive.
102
The requirement that restraints have a rational basis provides an individual with virtually no protection against punishment. Any restriction that may reduce the cost of the facility's warehousing function could not be characterized as "arbitrary or purposeless" and could not be "conclusively shown" to have no reasonable relation to the Government's mission.16 This is true even of a restraint so severe that it might be cruel and unusual.
103
Nor does the Court's intent test ensure the individual the protection that the Constitution guarantees. For the Court seems to use the term "intent" to mean the subjective intent of the jail administrator. This emphasis can only "encourage hypocrisy and unconscious self-deception."17 While a subjective intent may provide a sufficient reason for finding that punishment has been inflicted, such an intent is clearly not a necessary nor even the most common element of a punitive sanction.
104
In short, a careful reading of the Court's opinion reveals that it has attenuated the detainee's constitutional protection against punishment into nothing more than a prohibition against irrational classifications or barbaric treatment. Having recognized in theory that the source of that protection is the Due Process Clause, the Court has in practice defined its scope in the far more permissive terms of equal protection and Eighth Amendment analysis.
105
Prior to today, our cases have unequivocally adopted a less obeisant and more objective approach to punishment than the one the Court applies here. In my judgment, those decisions provide the framework for the correct analysis of the punishment issue in this case.
106
The leading case is Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644. The Court's conclusion that the statute in question was punitive was expressly based on "the objective manifestations of congressional purpose." Id., at 169, 83 S.Ct., at 568.18 The Court also recognized that in many cases such manifestations as it relied upon—the wording and construction of predecessor provisions as well as the congressional Reports on the provision itself, id., at 169-184, 83 S.Ct., at 568—would be unavailable19 or untrustworthy.20 In such cases, which surely include those in which the actions of an administrator rather than an Act of Congress are at issue, the Court stated that certain other "criteria" must be applied "to the face" of the official action to determine if it is punitive. Ibid. Illustrative of these objective "criteria" were several listed by the Court:
107
"Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned . . . ." Id., at 168-169, 83 S.Ct., at 567-568.
108
Today the Court does not expressly disavow the objective criteria identified in Mendoza-Martinez. In fact, in a footnote, see ante, at 539 n. 20, it relies on one of those criteria in order to answer an otherwise obvious criticism of the test the Court actually applies in this case. Under the test as the Court explains it today, prison guards could make regular use of dungeons, chains, and shackles, since such practices would make it possible to maintain security with a smaller number of guards. Commendably, however, the Court expressly rejects this application of its test by stating that the avail ability of less harsh alternatives would give rise to an inference that the practice was motivated by an intent to punish.
109
Although it is not easy to reconcile the footnote rejection of chains and shackles with the rest of the Court's analysis, this footnote confirms my view that a workable standard must allow a court to infer that punishment has been inflicted by evaluating objective criteria such as those delineated in Mendoza-Martinez. When sanctions involve "affirmative disabilit[ies]" and when they have "historically been regarded as a punishment," Kennedy v. Mendoza-Martinez, 372 U.S., at 168-169, 83 S.Ct., at 567-568, courts must be sensitive to the possibility that those sanctions are punitive. So, too, when the rules governing detention fail to draw any distinction among those who are detained—suggesting that all may be subject to rules designed for the most dangerous few careful scrutiny must be applied. Finally, and perhaps most important, when there is a significant and unnecessary disparity between the severity of the harm to the individual and the demonstrated importance of the regulatory objective, see ibid., courts must be justified in drawing an inference of punishment.
II
110
When measured against an objective standard, it is clear that the four rules discussed in Part III of the Court's opinion are punitive in character. All of these rules were designed to forestall the potential harm that might result from smuggling money, drugs, or weapons into the institution. Such items, it is feared, might be secreted in hard-cover books, packages of food or clothing, or body cavities. That fear provides the basis for a total prohibition on the receipt of hard-cover books (except from publishers, book clubs, or bookstores) or packages of food, for a visual search of body cavities after every visit, and for excluding the detainee from his cell while his personal belongings are searched by a guard.
111
There is no question that jail administrators have a legitimate interest in preventing smuggling. But it is equally clear that that interest is being served here in a way that punishes many if not all of the detainees.
112
The challenged practices concededly deprive detainees of fundamental rights and privileges of citizenship beyond simply the right to leave. The Court recognizes this premise, but it dismisses its significance by asserting that detainees may be subjected to the " 'withdrawal or limitation' " of fundamental rights. Ante, at 546, quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1059, 92 L.Ed. 1356.21 I disagree. The withdrawal of rights is itself among the most basic punishments that society can exact, for such a withdrawal qualifies the subject's citizenship and violates his dignity.22 Without question that kind of harm is an "affirmative disability" that "has historically been regarded as a punishment."23
113
This withdrawal of fundamental rights is not limited to those for whom punishment is proper, or to those detainees posing special security risks. The MCC houses convicted persons along with pretrial detainees. The former may constitutionally be punished, so long as that punishment is not cruel and unusual. And the fact of their long-term confinement may provide greater justification for concerns with ongoing smuggling operations, violence, or escape.24 Moreover, there may certainly be among the pretrial detainees, who cannot be punished, some whose background or history suggests a special danger that they will attempt to smuggle contraband into the jail. The rules at issue here, however, are not limited to those who may be constitutionally punished, or to those particularly dangerous detainees for whom onerous restraint is an appropriate regulation. Rather, the rules apply indiscriminately to all.
114
It is possible, of course, that the MCC officials have determined not to punish the convicted criminals who are confined there, but merely to regulate or detain them. It is possible, too, that as to the detainees, the rules that have been adopted and that are at issue here serve to impose only those restraints needed to regulate the least dangerous of the group. But the Government does not even suggest that the convicted criminals are not being punished during the confinement at MCC.25 And common sense suggests that if one set of rules is applied indiscriminately to detainees, those rules will serve to regulate the most dangerous—not the least—of the group. Indeed, prison security might well be in jeopardy were it otherwise. If that is true, and if the restraints are as substantial and fundamental as those here, then the conclusion that at least some, if not all, of the detainees are being punished is virtually inescapable.
115
That this is indeed the case here is confirmed by the excessive disparity between the harm to the individuals occasioned by these rules and the importance of their regulatory objective. The substantiality of the harm to the detainees cannot be doubted. The rights involved are among those that are specifically protected by the Constitution. That fact alone underscores our societal evaluation of their importance. The enforcement of these rules in the MCC, moreover, is a clear affront to the dignity of the detainee as a human being.26 To prohibit detainees from receiving books or packages communicates to the detainee that he, his friends, and his family cannot be trusted. And in the process, it eliminates one of his few remaining contacts with the outside world. The practice of searching the detainee's private possessions in his absence, frequently without care, United States ex rel. Wolfish v. Levi, 439 F.Supp. 114, 149 (SDNY 1977), offends not only his privacy interest, but also his interest in "minimal dignity," ibid. Finally, the search of private body cavities has been found to engender "deep degradation" and "terror" in the inmates, id., at 147: the price of such searches is so high as to lead detainees to forgo visits with friends and family altogether. Id., at 148.
116
In contrast to these severe harms to the individual, the interests served by these rules appear insubstantial. As to the room searches, nothing more than the convenience of the corrections staff supports the refusal to allow detainees to observe at a reasonable distance. While petitioners have raised the fear that inmates may become violent during such searches and may distract the guards, the District Court specifically found that they had made no showing of any pattern of violence or disruption to support these purported fears. Id., at 149. And absent such a showing, there is no more reason to ban all detainees from observing the searches of their rooms than there would be to ban them from every area in the MCC where guards or other inmates are present.
117
The prohibitions on receiving books and packages fare no better. The District Court found no record of "untoward experience" with respect to the book rule, United States ex rel. Wolfish v. United States, 428 F.Supp. 333, 340 (SDNY 1977), and no support in the evidence for the petitioners' "dire predictions" as to packages, 439 F.Supp., at 152. The simple fact is, and the record and the case law make clear, that in many prisons housing criminals convicted of serious crimes—where the inmates as a class may well be more dangerous, where smuggling is likely to be a far more serious problem, and where punishment is appropriate—packages of various sorts are routinely admitted subject to inspection. Ibid. The administrators here have hardly established that the corrections staff at MCC is incapable of performing similar inspections with respect to an inmate population which has a far greater entitlement to them. And the unsupported claim that food or goods may be used for barter or may introduce sanitation problems ignores not only the possibility of reasonable regulation, but also the fact that similar goods are sold in the MCC commissary, id., at 152-153, and are no more immune from barter or spoilage.
118
The body-cavity search—clearly the greatest personal indignity—may be the least justifiable measure of all. After every contact visit a body-cavity search is mandated by the rule. The District Court's finding that these searches have failed in practice to produce any demonstrable improvement in security, id., at 147, is hardly surprising.27 Detainees and their visitors are in full view during all visits, and are fully clad. To insert contraband in one's private body cavities during such a visit would indeed be "an imposing challenge to nerves and agility." Ibid. There is no reason to expect, and the petitioners have established none, that many pretrial detainees would attempt, let alone succeed, in surmounting this challenge absent the challenged rule. Moreover, as the District Court explicitly found, less severe alternatives are available to ensure that contraband is not transferred during visits. Id., at 147-148. Weapons and other dangerous instruments, the items of greatest legitimate concern, may be discovered by the use of metal detecting devices or other equipment commonly used for airline security. In addition, inmates are required, even apart from the body-cavity searches, to disrobe, to have their clothing inspected, and to present open hands and arms to reveal the absence of any concealed objects. These alternative procedures, the District Court found, "amply satisf[y]" the demands of security. Id., at 148. In my judgment, there is no basis in this record to disagree.
119
It may well be, as the Court finds, that the rules at issue here were not adopted by administrators eager to punish those detained at MCC. The rules can all be explained as the easiest way for administrators to ensure security in the jail. But the easiest course for jail officials is not always one that our Constitution allows them to take. If fundamental rights are withdrawn and severe harms are indiscriminately inflicted on detainees merely to secure minimal savings in time and effort for administrators, the guarantee of due process is violated.
120
In my judgment, each of the rules at issue here is unconstitutional. The four rules do indiscriminately inflict harm on all pretrial detainees in MCC. They are all either unnecessary or excessively harmful, particularly when judged against our historic respect for the dignity of the free citizen. I think it is unquestionably a form of punishment to deny an innocent person the right to read a book loaned to him by a friend or relative while he is temporarily confined, to deny him the right to receive gifts or packages, to search his private possessions out of his presence, or to compel him to exhibit his private body cavities to the visual inspection of a guard. Absent probable cause to believe that a specific individual detainee poses a special security risk, none of these practices would be considered necessary, or even arguably reasonable, if the pretrial detainees were confined in a facility separate and apart from convicted prisoners. If reasons of convenience justify intermingling the two groups, it is not too much to require the facility's administrator to accept the additional inspection burdens that would result from denying them the right to subject citizens to these humiliating indignities. I would affirm the judgment of the Court of Appeals as to all four of these rules.28
III
121
The so-called "double-bunking" issue was resolved by the District Court on cross-motions for summary judgment. The record was compiled and the issue decided on the basis of a legal test that all of us now agree was erroneous.29 If the record is incomplete, or if it discloses any material question of fact concerning the punitive character of the housing conditions at MCC, a remand for trial is required. Three basic facts dictate that result.
122
First, as earlier emphasized, MCC houses convicted prisoners along with pretrial detainees. Both classes of inmates are subjected to the same conditions. It may be that the Government despite representations to the contrary, see 439 F.Supp., at 153 conceives of the confinement of convicts in the facility as a vacation for them from the punitive rigors of prison life. But the opposite conclusion—that the detainees are instead being subjected to some of those rigors—is at least an equally justifiable inference from the facts revealed by the record, particularly in view of the other rules applicable to both classes.
123
Second, the Government acknowledges that MCC has been used to house twice as many inmates as it was designed to accommodate.30 The design capacity of a building is one crucial indication of its purpose. So is the later abandonment of that design in favor of a substantially more crowded and oppressive one. Certainly, the inference that what the architect designed to detain, the jailer has used to punish, is permissible, even if it may not be compelled or even probable.
124
Finally, MCC officials experienced little difficulty in complying with the preliminary order of the District Court to return the facility to its design capacity. The Court dismisses this fact as not conclusive on the question of purpose and reasonableness. Ante, at 542-543 n. 25. But the fact that the Government's lawful regulatory purpose could so easily be served by less severe conditions is certainly some evidence of a punitive purpose and of excessiveness. If the lawful purpose may be equally served by those new conditions at no greater cost, the record provides a basis for arguing that there is no legitimate reason for the extra degree of severity that has characterized the overcrowded conditions in the past.31
125
While I by no means suggest that any of these facts demonstrate that the detention conditions are punitive,32 taken together they raise an issue of fact that should not be resolved by this Court, or even by the District Court, on a motion for summary judgment.
126
It is admittedly easier to conclude that the Due Process Clause prohibits preconviction punishment than it is to articulate a standard for determining if such punishment has occurred. But if the standard is to afford any meaningful protection for the citizen's liberty, it must require something more than either an explicit statement by the administrator that his rule is designed to inflict punishment, or a sanction that is so arbitrary that it would be invalid even if it were not punitive. However, the test is phrased, it must at least be satisfied by an unexplained and significant disparity between the severity of the harm to the individual and the demonstrated importance of the nonpunitive objective served by it. I therefore respectfully dissent from the conclusion that the demeaning and unnecessary practices described in Part III of the Court's opinion do not constitute punishment, and also from the conclusion that the overcrowded housing conditions discussed in Part II do not even give rise to an inference that they have punitive qualities.
1
See, e. g., Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).
2
See, e. g., Norris v. Frame, 585 F.2d 1183 (CA3 1978); Campbell v. McGruder, 188 U.S.App.D.C. 258, 580 F.2d 521 (1978); Wolfish v. Levi, 573 F.2d 118 (CA2 1978) (case below); Feeley v. Sampson, 570 F.2d 364 (CA1 1978); Main Road v. Aytch, 565 F.2d 54 (CA3 1977); Patterson v. Morrisette, 564 F.2d 1109 (CA4 1977); Miller v. Carson, 563 F.2d 741 (CA5 1977); Duran v. Elrod, 542 F.2d 998 (CA7 1976).
3
This group of nondetainees may comprise, on a daily basis, between 40% and 60% of the MCC population. United States ex rel. Wolfish v. United States, 428 F.Supp. 333, 335 (SDNY 1977). Prior to the District Court's order, 50% of all MCC inmates spent less than 30 days at the facility and 73% less than 60 days. United States ex rel. Wolfish v. Levi, 439 F.Supp. 114, 127 (SDNY 1977). However, of the unsentenced detainees, over half spent 10 days or less at the MCC, three-quarters were released within a month and more than 85% were released within 60 days. Wolfish v. Levi, 573 F.2d 118, 129 n. 25 (1978).
4
Of the 389 residential rooms at the MCC, 121 had been "designated" for "double-bunking" at the time of the District Court's order. 428 F.Supp., at 336. The number of rooms actually housing two inmates, however, never exceeded 73 and, of these, only 35 were rooms in units that housed pretrial detainees. Brief for Petitioners 7 n. 6; Brief for Respondents 11-12; App. 33-35 (affidavit of Larry Taylor, MCC Warden, dated Dec. 29, 1976).
5
It appears that the named respondents may now have been transferred or released from the MCC. See United States ex rel. Wolfish v. Levi, supra, at 119. "This case belongs, however, to that narrow class of cases in which the termination of a class representative's claim does not moot the claims of the unnamed members of the class." Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 861 n. 11, 43 L.Ed.2d 54 (1975); see Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). The named respondents had a case or controversy at the time the complaint was filed and at the time the class action was certified by the District Court pursuant to Fed.Rule Civ.Proc. 23, and there remains a live controversy between petitioners and the members of the class represented by the named respondents. See Sosna v. Iowa, supra, at 402, 95 S.Ct., at 559. Finally, because of the temporary nature of confinement at the MCC, the issues presented are, as in Sosna and Gerstein, "capable of repetition, yet evading review." 419 U.S., at 400-401, 95 S.Ct., at 557-558; 420 U.S., at 110 n. 11, 95 S.Ct., at 861 n. 11; see Kremens v. Bartley, 431 U.S. 119, 133, 97 S.Ct. 1709, 1717, 52 L.Ed.2d 184 (1977). Accordingly, the requirements of Art. III are met and the case is not moot.
6
Petitioners apparently never contested the propriety of respondents' use of a writ of habeas corpus to challenge the conditions of their confinement, and petitioners do not raise that question in this Court. However, respondents did plead an alternative basis for jurisdiction in their "Amended Petition" in the District Court—namely, 28 U.S.C. § 1361—that arguably provides jurisdiction. And, at the time of the relevant orders of the District Court in this case, jurisdiction would have been provided by 28 U.S.C. § 1331(a). Thus, we leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself. See Preiser v. Rodriguez, 411 U.S. 475, 499-500, 93 S.Ct. 1827, 1841-1842, 36 L.Ed.2d 439 (1973). See generally Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979).
Similarly, petitioners do not contest the District Court's certification of this case as a class action. For much the same reasons as identified above, there is no need in this case to reach the question whether Fed.Rule Civ.Proc. 23, providing for class actions, is applicable to petitions for habeas corpus relief. Accordingly, we express no opinion as to the correctness of the District Court's action in this regard. See Middendorf v. Henry, 425 U.S. 25, 30, 96 S.Ct. 1281, 1285, 47 L.Ed.2d 556 (1976).
7
The Court of Appeals described the breadth of this action as follows:
"As an indication of the scope of this action, the amended petition also decried the inadequate phone service; 'strip' searches; room searches outside the inmate's presence; a prohibition against the receipt of packages or the use of personal typewriters; interference with, and monitoring of, personal mail; inadequate and arbitrary disciplinary and grievance procedures; inadequate classification of prisoners; improper treatment of non-English speaking inmates; unsanitary conditions; poor ventilation; inadequate and unsanitary food; the denial of furloughs, unannounced transfers; improper restrictions on religious freedom; and an insufficient and inadequately trained staff." 573 F.2d, at 123 n. 7.
8
While most of the District Court's rulings were based on constitutional grounds, the court also held that some of the actions of the Bureau of Prisons were subject to review under the Administrative Procedure Act (APA) and were "arbitrary and capricious" within the meaning of the APA. 439 F.Supp., at 122-123, 141; see n. 11, infra.
9
The District Court also enjoined confiscation of inmate property by prison officials without supplying a receipt and, except under specified circumstances, the reading and inspection of inmates' outgoing and incoming mail. 428 F.Supp., at 341-344. Petitioners do not challenge these rulings.
10
The District Court also granted respondents relief on the following issues: classification of inmates and movement between units; length of confinement; law library facilities; the commissary; use of personal typewriters; social and attorney visits; telephone service; inspection of inmates' mail; inmate uniforms; availability of exercise for inmates in administrative detention; food service; access to the bathroom in the visiting area; special diets for Muslim inmates; and women's "lock-in." 439 F.Supp., at 125-165. None of these rulings are before this Court.
11
The Court of Appeals held that "[a]n institution's obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." 573 F.2d, at 125.
The Court of Appeals also held that the District Court's reliance on the APA was erroneous. See n. 8, supra. The Court of Appeals concluded that because the Bureau of Prisons' enabling legislation vests broad discretionary powers in the Attorney General, the administration of federal prisons constitutes " 'agency action . . . committed to agency discretion by law' " that is exempt from judicial review under the APA, at least in the absence of a breach of a specific statutory mandate. 573 F.2d, at 125; see 5 U.S.C. § 701(a)(2). Because of its holding that the APA was inapplicable to this case, the Court of Appeals reversed the District Court's rulings that the bathroom in the visiting area must be kept unlocked, that prison officials must make a certain level of local and long-distance telephone service available to MCC inmates, that the MCC must maintain unchanged its present schedule for social visits, and that the MCC must take commissary requests every other day. 573 F.2d, at 125-126, and n. 16. Respondents have not cross petitioned from the Court of Appeals' disposition of the District Court's Eighth Amendment and APA rulings.
12
Although the Court of Appeals held that doubling the capacity of the dormitories was unlawful, it remanded for the District Court to determine "whether any number of inmates in excess of rated capacity could be suitably quartered within the dormitories." Id., at 128. In view of the changed conditions resulting from this litigation, the court also remanded to the District Court for reconsideration of its order limiting incarceration of detainees at the MCC to a period less than 60 days. Id., at 129. The court reversed the District Court's rulings that inmates be permitted to possess typewriters for their personal use in their rooms and that inmates not be required to wear uniforms. Id., at 132-133. None of these rulings are before the Court.
13
The NAACP Legal Defense and Educational Fund, Inc., as amicus curiae, argues that federal courts have inherent authority to correct conditions of pretrial confinement and that the practices at issue in this case violate the Attorney General's alleged duty to provide inmates with "suitable quarters" under 18 U.S.C. § 4042(2). Brief for the NAACP Legal Defense and Educational Fund, Inc., as Amicus Curiae 22-46. Neither argument was presented to or passed on by the lower courts; nor have they been urged by either party in this Court. Accordingly, we have no occasion to reach them in this case. Knetsch v. United States, 364 U.S. 361, 370, 81 S.Ct. 132, 137, 5 L.Ed.2d 128 (1960).
14
As authority for its compelling-necessity test, the court cited three of its prior decisions, Rhem v. Malcolm, 507 F.2d 333 (CA2 1974) (Rhem I ); Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392 (CA2 1975); and Rhem v. Malcolm, 527 F.2d 1041 (CA2 1975) (Rhem II ). Rhem I's support for the compelling-necessity test came from Brenneman v. Madigan, 343 F.Supp. 128, 142 (ND Cal.1972), which in turn cited no cases in support of its statement of the relevant test. Detainees found support for the compelling-necessity standard in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); and Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). But Tate and Williams dealt with equal protection challenges to imprisonment based on inability to pay fines or costs. Similarly, Shapiro concerned equal protection challenges to state welfare eligibility requirements found to violate the constitutional right to travel. In Shelton, the Court held that a school board policy requiring disclosure of personal associations violated the First and Fourteenth Amendment rights of a teacher. None of these cases support the court's compelling-necessity test. Finally, Rhem II merely relied on Rhem and Detainees.
15
In order to imprison a person prior to trial, the Government must comply with constitutional requirements, Gerstein v. Pugh, 420 U.S., at 114, 95 S.Ct., at 863; Stack v. Boyle, 342 U.S., at 5, 72 S.Ct., at 3, and any applicable statutory provisions, e. g., 18 U.S.C. §§ 3146, 3148. Respondents do not allege that the Government failed to comply with the constitutional or statutory requisites to pretrial detention.
The only justification for pretrial detention asserted by the Government is to ensure the detainees' presence at trial. Brief for Petitioners 43. Respondents do not question the legitimacy of this goal. Brief for Respondents 33; Tr. of Oral Arg. 27. We, therefore, have no occasion to consider whether any other governmental objectives may constitutionally justify pretrial detention.
16
The Court of Appeals properly relied on the Due Process Clause rather than the Eighth Amendment in considering the claims of pretrial detainees. Due process requires that a pretrial detainee not be punished. A sentenced inmate, on the other hand, may be punished, although that punishment may not be "cruel and unusual" under the Eighth Amendment. The Court recognized this distinction in Ingraham v. Wright, 430 U.S. 651, 671-672, n. 40, 97 S.Ct. 1401, 1412-1413 n. 40, 51 L.Ed.2d 711 (1977):
"Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. See United States v. Lovett, 328 U.S. 303, 317-318, 66 S.Ct. 1073, 1079-1080, 90 L.Ed. 1252 (1946). . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment."
17
Mr. Justice STEVENS in dissent claims that this holding constitutes a departure from our prior due process cases, specifically Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979), and Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Post, at 580-581, and n. 6. But as the citations following our textual statement indicate, we leave prior decisional law as we find it and simply apply it to the case at bar. For example, in Wong Wing v. United States, 163 U.S. 228, 237, 16 S.Ct. 977, 980, 41 L.Ed. 140 (1896), the Court held that the subjection of persons to punishment at hard labor must be preceded by a judicial trial to establish guilt. And in Ingraham v. Wright, supra, 430 U.S., at 674, 97 S.Ct., at 1414, we stated that "at least where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, we hold that Fourteenth Amendment liberty interests are implicated." (Emphasis supplied.) Thus, there is neither novelty nor inconsistency in our holding that the Fifth Amendment includes freedom from punishment within the liberty of which no person may be deprived without due process of law.
We, of course, do not mean by the textual discussion of the rights of pretrial detainees to cast doubt on any historical exceptions to the general principle that punishment can only follow a determination of guilt after trial or plea—exceptions such as the power summarily to punish for contempt of court. See, e. g., United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888); Fed.Rule Crim.Proc. 42.
18
The Bail Reform Act of 1966 establishes a liberal policy in favor of pretrial release. 18 U.S.C. §§ 3146, 3148. Section 3146 provides in pertinent part:
"Any person charged with an offense, other than an offense punishable by death, shall, at his appearance before a judicial officer, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required."
19
As Mr. Justice Frankfurter stated in United States v. Lovett, 328 U.S. 303, 324, 66 S.Ct. 1073, 1083, 90 L.Ed. 1252 (1946) (concurring opinion): "The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation."
20
This is not to say that the officials of a detention facility can justify punishment. They cannot. It is simply to say that in the absence of a showing of intent to punish, a court must look to see if a particular restriction or condition, which may on its face appear to be punishment, is instead but an incident of a legitimate nonpunitive governmental objective. See Kennedy v. Mendoza-Martinez, 372 U.S., at 168, 83 S.Ct., at 567; Flemming v. Nestor, 363 U.S., at 617, 80 S.Ct., at 1376. Retribution and deterrence are not legitimate nonpunitive governmental objectives. Kennedy v. Mendoza-Martinez, supra, 372 U.S., at 168, 83 S.Ct., at 567. Conversely, loading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so may alternative and less harsh methods, would not support a conclusion that the purpose for which they were imposed was to punish.
21
"There is, of course, a de minimis level of imposition with which the Constitution is not concerned." Ingraham v. Wright, 430 U.S., at 674, 97 S.Ct., at 1414.
22
In fact, security measures may directly serve the Government's interest in ensuring the detainee's presence at trial. See Feeley v. Sampson, 570 F.2d, at 369.
23
In determining whether restrictions or conditions are reasonably related to the Government's interest in maintaining security and order and operating the institution in a manageable fashion, courts must heed our warning that "[s]uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Pell v. Procunier, 417 U.S., at 827, 94 S.Ct., at 2806; see Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).
24
The District Court found that there were no disputed issues of material fact with respect to respondents' challenge to "double-bunking." 428 F.Supp., at 335. We agree with the District Court in this determination.
25
Respondents seem to argue that "double-bunking" was unreasonable because petitioners were able to comply with the District Court's order forbidding "double-bunking" and still accommodate the increased numbers of detainees simply by transferring all but a handful of sentenced inmates who had been assigned to the MCC for the purpose of performing certain services and by committing those tasks to detainees. Brief for Respondents 50. That petitioners were able to comply with the District Court's order in this fashion does not mean that petitioners' chosen method of coping with the increased inmate population "double-bunking"—was unreasonable. Governmental action does not have to be the only alternative or even the best alternative for it to be reasonable, to say nothing of constitutional. See Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970).
That petitioners were able to comply with the District Court order also does not make this case moot, because petitioners still dispute the legality of the court's order and they have informed the Court that there is a reasonable expectation that they may be required to "double-bunk" again. Reply Brief for Petitioners 6; Tr. of Oral Arg. 33-35, 56-57; see United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897-898, 97 L.Ed. 1303 (1953).
26
We thus fail to understand the emphasis of the Court of Appeals and the District Court on the amount of walking space in the "double-bunked" rooms. See 573 F.2d, at 127; 428 F.Supp., at 337.
27
Respondents' reliance on other lower court decisions concerning minimum space requirements for different institutions and on correctional standards issued by various groups is misplaced. Brief for Respondents 41, and nn. 40 and 41; see, e. g., Campbell v. McGruder, 188 U.S.App.D.C. 258, 580 F.2d 521 (1978); Battle v. Anderson, 564 F.2d 388 (CA10 1977); Chapman v. Rhodes, 434 F.Supp. 1007 (SD Ohio 1977); Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676 (DC Mass.1973); American Public Health Assn., Standards for Health Services in Correctional Institutions 62 (1976); American Correctional Assn., Manual of Standards for Adult Correctional Institutions, Standard No. 4142, p. 27 (1977); National Sheriffs' Assn., A Handbook on Jail Architecture 63 (1975). The cases cited by respondents concerned facilities markedly different from the MCC. They involved traditional jails and cells in which inmates were locked during most of the day. Given this factual disparity, they have little or no application to the case at hand. Thus, we need not and do not decide whether we agree with the reasoning and conclusions of these cases. And while the recommendations of these various groups may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question. For this same reason, the draft recommendations of the Federal Corrections Policy Task Force of the Department of Justice regarding conditions of confinement for pretrial detainees are not determinative of the requirements of the Constitution. See Dept. of Justice, Federal Corrections Policy Task Force, Federal Standards for Corrections (Draft, June 1978).
28
Neither the Court of Appeals nor the District Court distinguished between pretrial detainees and convicted inmates in reviewing the challenged security practices, and we see no reason to do so. There is no basis for concluding that pretrial detainees pose any lesser security risk than convicted inmates. Indeed, it may be that in certain circumstances they present a greater risk to jail security and order. See, e. g., Main Road v. Aytch, 565 F.2d, at 57. In the federal system, a detainee is committed to the detention facility only because no other less drastic means can reasonably assure his presence at trial. See 18 U.S.C. § 3146. As a result, those who are detained prior to trial may in many cases be individuals who are charged with serious crimes or who have prior records. They also may pose a greater risk of escape than convicted inmates. See Joint App. in Nos. 77-2035, 77-2135 (CA2), pp. 1393-1398, 1531-1532. This may be particularly true at facilities like the MCC, where the resident convicted inmates have been sentenced to only short terms of incarceration and many of the detainees face the possibility of lengthy imprisonment if convicted.
29
Respondents argue that this Court's cases holding that substantial deference should be accorded prison officials are not applicable to this case because those decisions concerned convicted inmates, not pretrial detainees. Brief for Respondents 52. We disagree. Those decisions held that courts should defer to the informed discretion of prison administrators because the realities of running a corrections institution are complex and difficult, courts are ill equipped to deal with these problems, and the management of these facilities is confided to the Executive and Legislative Branches, not to the Judicial Branch. See Jones v. North Carolina Prisoners' Labor Union, 433 U.S., at 126, 97 S.Ct., at 2538; Pell v. Procunier, 417 U.S., at 827, 94 S.Ct., at 2806; Procunier v. Martinez, 416 U.S., at 404-405, 94 S.Ct., at 1807-1808. While those cases each concerned restrictions governing convicted inmates, the principle of deference enunciated in them is not dependent on that happenstance.
30
What the Court said in Procunier v. Martinez, bears repeating here:
"Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism." Ibid.
31
Because of the changes in the "publisher-only" rule, some of which apparently occurred after we granted certiorari, respondents, citing Sanks v. Georgia, 401 U.S. 144, 91 S.Ct. 593, 27 L.Ed.2d 741 (1971), urge the Court to dismiss the writ of certiorari as improvidently granted with respect to the validity of the rule, as modified. Brief for Respondents 68. Sanks, however, is quite different from the instant case. In Sanks the events that transpired after probable jurisdiction was noted "had so drastically undermined the premises on which we originally set [the] case for plenary consideration as to lead us to conclude that, with due regard for the proper functioning of this Court, we should not . . . adjudicate it." 401 U.S., at 145, 91 S.Ct., at 595. The focus of that case had been "completely blurred, if not altogether obliterated," and a judgment on the issues involved had become "potentially immaterial." Id., at 152, 91 S.Ct., at 598. This is not true here. Unlike the situation in Sanks, the Government has not substituted an entirely different regulatory scheme and wholly abandoned the restrictions that were invalidated below. There is still a dispute, which is not "blurred" or "obliterated," on which a judgment will not be "immaterial." Petitioners merely have chosen to limit their disagreement with the lower courts' rulings. Also, the question that is now posed is fairly comprised within the questions presented in the petition for certiorari. See Pet. for Cert. 2 ("[w]hether the governmental interest in maintaining jail security and order justifies rules that . . . (b) prohibit receipt at the jail of books and magazines that are not mailed directly from publishers"). See this Court's Rule 23(1)(c). We, of course, express no view as to the validity of those portions of the lower courts' rulings that concern magazines or soft-cover books.
32
The District Court stated: "With no record of untoward experience at places like the MCC, and with no history of resort to less restrictive measures, [petitioners'] invocation of security cannot avail with respect to the high constitutional interests here at stake." 428 F.Supp., at 340. We rejected this line of reasoning in Jones v. North Carolina Prisoners' Labor Union, 433 U.S., at 132-133, 97 S.Ct., at 2542, where we stated: "Responsible prison officials must be permitted to take reasonable steps to forestall . . . threat[s to security], and they must be permitted to act before the time when they can compile a dossier on the eve of a riot." We reject it again, now. In Jones, we also emphasized that the "informed discretion of prison officials that there is potential danger may be sufficient for limiting rights even though this showing might be 'unimpressive if . . . submitted as justification for governmental restriction of personal communication among members of the general public.' " (Emphasis added.) Id., at 133 n. 9, 97 S.Ct., at 2542 n. 9, quoting Pell v. Procunier, 417 U.S., at 825, 94 S.Ct., at 2805, see Procunier v. Martinez, 416 U.S., at 414, 94 S.Ct., at 811.
33
The general library consists of more than 3,000 hardback books, which include general reference texts and fiction and nonfiction works, and more than 5,000 assorted paperbacks, including fiction and nonfiction. The MCC offers for sale to inmates four daily newspapers and certain magazines. Joint App. in Nos. 77-2035, 77-2135 (CA2) pp. 102-103 (affidavit of Robert Harris, MCC Education Specialist, dated Oct. 19, 1976). Other paperback books and magazines are donated periodically and distributed among the units for inmate use. United States ex rel. Wolfish v. Levi, 439 F.Supp., at 131.
34
Inmates are permitted to spend a total of $15 per week or up to $50 per month at the commissary. Id., at 132.
35
With regard to pretrial detainees, we again note that this restriction affects them for generally a maximum of 60 days. See n. 3, supra.
36
One of the correctional experts testified as follows:
"[T]he requirement that prisoners not be in the immediate area obviously has its basis again in the requirements of security.
"It is quite obvious that if a group of officers start a searching process of a housing area at the MCC, if it be a corridor or an area of rooms or in a typical jail if it were a cell block, unless all prisoners are removed from that immediate area, there are a wide variety of opportunities for the confiscation of contraband by prisoners who may have such in their possession and cells.
"It can go down the toilet or out the window, swallowed, a wide variety of methods of confiscation of contraband." App. 78.
37
The District Court did not extend its ruling to convicted inmates because, for them, "the asserted necessities need not be 'compelling,' " and since the warden's explanation of the problems posed was "certainly not weightless," the practice passed the constitutional test for sentenced inmates. 439 F.Supp., at 150.
38
It may be that some guards have abused the trust reposed in them by failing to treat the personal possessions of inmates with appropriate respect. But, even assuming that in some instances these abuses of trust reached the level of constitutional violations, this is not an action to recover damages for damage to or destruction of particular items of property. This is a challenge to the room-search rule in its entirety, and the lower courts have enjoined enforcement of the practice itself. When analyzed in this context, proper deference to the informed discretion of prison authorities demands that they, and not the courts, make the difficult judgments which reconcile conflicting claims affecting the security of the institution, the welfare of the prison staff, and the property rights of the detainees. Jones v. North Carolina Prisoners' Labor Union, 433 U.S., at 128, 97 S.Ct., at 2539.
39
If the inmate is a male, he must lift his genitals and bend over to spread his buttocks for visual inspection. The vaginal and anal cavities of female inmates also are visually inspected. The inmate is not touched by security personal at any time during the visual search procedure. 573 F.2d, at 131; Brief for Petitioners 70, 74 n. 56.
40
The District Court indicated that in its view the use of metal detection equipment represented a less intrusive and equally effective alternative to cavity inspections. We noted in United States v. Martinez-Fuerte, 428 U.S. 543, 556-557 n. 12, 96 S.Ct. 3074, 3082 n. 12, 49 L.Ed.2d 1116 (1976), that "[t]he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers." However, assuming that the existence of less intrusive alternatives is relevant to the determination of the reasonableness of the particular search method at issue, the alternative suggested by the District Court simply would not be as effective as the visual inspection procedure. Money, drugs, and other nonmetallic contraband still could easily be smuggled into the institution. Another possible alternative, not mentioned by the lower courts, would be to closely observe inmate visits. See Dept. of Justice, Federal Corrections Policy Task Force, Federal Standards for Corrections (Draft, June 1978). But MCC officials have adopted the visual inspection procedure as an alternative to close and constant monitoring of contact visits to avoid the obvious disruption of the confidentiality and intimacy that these visits are intended to afford. That choice has not been shown to be irrational or unreasonable. Another alternative that might obviate the need for body-cavity inspections would be to abolish contact visits altogether. But the Court of Appeals, in a ruling that is not challenged in this Court and on which we, accordingly, express no opinion, held that pretrial detainees have a constitutional right to contact visits. 573 F.2d, at 126 n. 16; see Marcera v. Chinlund, 595 F.2d 1231 (CA2 1979). See also Miller v. Carson, 563 F.2d, at 748-749.
41
We note that several lower courts have upheld such visual body-cavity inspections against constitutional challenge. See, e. g., Daughtery v. Harris, 476 F.2d 292 (CA10), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973); Hodges v. Klein, 412 F.Supp. 896 (DCNJ 1976); Bijeol v. Benson, 404 F.Supp. 595 (SD Ind.1975); Penn El v. Riddle, 399 F.Supp. 1059 (ED Va.1975).
42
In determining whether the "publisher-only" rule constitutes punishment, we consider the rule in its present form and in light of the concessions made by petitioners. See supra, at 548-550.
43
The District Court noted that in their post-trial memorandum petitioners stated that "[w]ith respect to sentenced inmates, . . . the restrictions on the possession of personal property also serve the legitimate purpose of punishment." 439 F.Supp., at 153; see Post-trial Memorandum for Respondents in No. 75 Civ. 6000 (SDNY) 212 n. However, below and in this Court, petitioners have relied only on the three reasons discussed supra, at 553, to justify this restriction. In our view, this passing reference in a brief to sentenced inmates, which was not supported by citation to the record, hardly amounts to the "substantial confession of error" with respect to pretrial detainees referred to by the District Court. 439 F.Supp., at 153.
1
The Bail Reform Act, 18 U.S.C. § 3146, to which the Court adverts ante, at 524, provides that bail be set in an amount that will "reasonably assure" the defendant's presence at trial. In fact, studies indicate that bail determinations frequently do not focus on the individual defendant but only on the nature of the crime charged and that, as administered, the system penalizes indigent defendants. See, e. g., ABA Project on Standards for Criminal Justice, Pretrial Release 1-2 (1968); W. Thomas, Bail Reform in America 11-19 (1976). See also National Advisory Commission on Criminal Justice Standards and Goals, Corrections 102-103 (1973); National Association of Pretrial Service Agencies, Performance Standards and Goals for Pretrial Release and Diversion 1-3 (1978).
2
Indeed, the Court glosses over the Government's statement in its post-trial memorandum that for inmates serving sentences, "the restrictions on the possession of personal property also serve the legitimate purpose of punishment." United States ex rel. Wolfish v. Levi, 439 F.Supp. 114, 153 (SDNY 1977); Post-trial Memorandum for Respondents in No. 75 Civ. 6000 (SDNY) 212 n., quoted ante, at 561 n. 43. This statement provides at least some indication that a similar motive may underlie application of the same rules to detainees. The Court's treatment of this point illustrates the indifference with which it pursues the intent inquiry.
3
Thus, for example, lower courts have held a variety of security restrictions unconstitutional. E. g., Collins v. Schoonfield, 344 F.Supp. 257, 283 (Md.1972) (warden censored newspaper articles critical of his administration of jail); id., at 278 (mentally disturbed detainees shackled in jail infirmary); Inmates of Milwaukee County Jail v. Petersen, 353 F.Supp. 1157, 1164 (ED Wis.1973) (detainees limited to two pages per letter; notice to relatives and friends of the time and place of detainee's next court appearance deleted on security grounds); United States ex rel. Manicone v. Corso, 365 F.Supp. 576 (EDNY 1973) (newspapers banned because they might disrupt prisoners and create a fire hazard); Miller v. Carson, 401 F.Supp. 835, 878 (MD Fla.1975), aff'd, 563 F.2d 741 (CA5 1977) (detainees in hospital kept continuously chained to bed); O'Bryan v. County of Saginaw, 437 F.Supp. 582 (ED Mich.1977) (detainees with bail of more than $500 prevented from attending religious services); Vest v. Lubbock County Commissioners Court, 444 F.Supp. 824 (ND Tex.1977) (detainees limited to three pages per letter and six incoming and outgoing letters per week to facilitate censorship; guards authorized to refuse to mail or deliver letters containing "abusive" language).
4
The Court does concede that "loading a detainee with chains and shackles and throwing him in a dungeon," ante, at 539 n. 20, would create an inference of punitive intent and hence would be impermissible. I am indeed heartened by this concession, but I do not think it sufficient to give force to the Court's standard.
5
Indeed, lest the point escape the reader, the majority reiterates it 12 times in the course of the opinion. Ante, at 531, 540-541, n. 23, 544, 546-548, and nn. 29 and 30, 551, 554, 557 n. 38, 562.
6
As Chief Judge Coffin has stated, "[i]t would be impossible, without playing fast and loose with the English language, for a court to examine the conditions of confinement under which detainees are incarcerated . . . and conclude that their custody was not punitive in effect if not in intent." Feeley v. Sampson, 570 F.2d 364, 380 (CA1 1978) (dissenting opinion). Accord, Campbell v. McGruder, 188 U.S.App.D.C. 258, 267, 580 F.2d 521, 530 (1978).
7
If a particular imposition could be termed "punishment" under the Mendoza-Martinez criteria, I would, of course, agree that it violates the Due Process Clause. My criticism is that, in this context, determining whether a given restraint constitutes punishment is an empty semantic exercise. For pretrial incarceration is in many respects no different from the sanctions society imposes on convicted criminals. To argue over a question of characterization can only obscure what is in fact the appropriate inquiry, the actual nature of the impositions balanced against the Government's justifications.
8
See New Motor Vehicle Board v. Orrin W. Fox Co., 439 U.S. 96, 112-113, 99 S.Ct. 403, 413, 58 L.Ed.2d 361 (1978) (MARSHALL, J., concurring); Poe v. Ullman, 367 U.S. 497, 542, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting); Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977); Roe v. Wade, 410 U.S. 113, 115, 93 S.Ct. 705, 708, 35 L.Ed.2d 147 (1973).
9
See, e. g., Brandenburg v. Ohio, 395 U.S. 444, 448, 89 S.Ct. 1827, 1830, 23 L.Ed.2d 430 (1969) (free speech); Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (access to the courts).
10
Blackstone observed over 200 years ago:
"Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice . . . ; there to abide till delivered by due course of law. . . . But this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in his dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity; and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only . . .." 4 W. Blackstone, Commentaries 300.
11
Other courts have found that in the circumstances before them overcrowding inflicted mental and physical damage on inmates. See, e. g., Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 396, and n. 4 (CA2 1975) (testimony of correctional experts that double-bunking is "psychologically destructive and increases homosexual impulses, tensions and aggressive tendencies"); Battle v. Anderson, 564 F.2d 388, 398 (CA10 1977); Campbell v. McGruder, 188 U.S.App.D.C., at 273, 580 F.2d, at 536 (overcrowding likely "to impair the mental and physical health" of detainees); Chapman v. Rhodes, 434 F.Supp. 1007, 1020 (SD Ohio 1977).
12
The MCC has a single-bed capacity of 449 inmates. Under the Court's analysis, what is to be done if the inmate population grows suddenly to 600, or 900? The Court simply ignores the rated capacity of the institution. Yet this figure is surely relevant in assessing whether overcrowding inflicts harms of constitutional magnitude.
13
The Court of Appeals' rulings on what this Court broadly designates "security restrictions" applied both to detainees and convicted prisoners. I believe impositions on these groups must be measured under different standards. See supra, at 568-571. I would remand to the District Court for determination whether there is a continuing controversy with respect to convicted inmates. If the issues were contested, the body-cavity searches, at the least, would presumably be invalid. Cf. infra, at 576-578, and United States v. Lilly, 576 F.2d 1240 (CA5 1978).
14
Nor can the Court's attempt to denominate the publisher-only rule as a reasonable "time, place and manner regulatio[n]," ante, at 552, substitute for such a showing. In each of the cases cited by the Court for this proposition, the private individuals had the ability to alter the time, place, or manner of exercising their First Amendment rights. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (ordinance prohibiting demonstration within 150 feet of a school at certain times of the day); Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941) (permissible to require license for parade); Cox v. Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 464, 13 L.Ed.2d 571 (1965) (city could prohibit parades during rush hour); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (public demonstration on premises of county jail). It is not clear that the detainees here possess the same freedom to alter the time, place, or manner of exercising their First Amendment rights. Indeed, as the Government acknowledges, Tr. of Oral Arg. 18, an unspecified number of detainees at the MCC are incarcerated because they cannot afford bail. For these persons, the option of purchasing hardback books from publishers or bookstores will frequently be unavailable. And it is hardly consistent with established First Amendment precepts to restrict inmates to library selections made by detention officials.
15
The MCC already uses such electronic equipment to search packages carried by visitors. See infra, at 578.
16
In addition, the Justice Department's Draft Federal Standards for Corrections discourage limitations on the volume or content of inmate mail, including packages. Dept. of Justice, Federal Corrections Policy Task Force, Federal Standards for Corrections 63 (Draft, June 1978).
17
While the Government presented psychiatric testimony that the procedures were not likely to create lasting emotional trauma, the District Court intimated some doubt as to the credibility of this testimony, and found that the injury was of constitutional dimension even if it did not require psychiatric treatment or leave permanent psychological scars. 439 F.Supp., at 150.
18
To facilitate this monitoring, MCC officials limited to 25 the number of people in the visiting room at one time. Joint App. 1208. Inmates were forbidden to use the locked lavatories, and visitors could use them only by requesting a key from a correctional officer. App. 93; see Wolfish v. Levi, 573 F.2d 118, 125 (1978). The lavatories, as well, contain a built-in window for observation. Brief for Respondents 57.
1
"No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S.Const., Amdt. 14, § 1.
2
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." U.S.Const., Amdt. 8.
3
Because this is a federal facility, it is, of course, the Fifth Amendment that applies. It provides, in relevant part: "No person shall be . . . deprived of life, liberty, or property, without due process of law . . . ."
4
Because Mr. Justice MARSHALL does not accept this basis for analysis, see ante, at 568-569, I have added this separate dissent even though I agree with much of his analysis and most of his criticism of the Court.
5
See Meachum v. Fano, 427 U.S. 215, 230, 96 S.Ct. 2532, 2541, 49 L.Ed.2d 451 (STEVENS, J., dissenting).
6
See Leis v. Flynt, 439 U.S. 438, 443, 99 S.Ct. 698, 701, 58 L.Ed.2d 717; Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405.
7
The facility is used to house convicted persons who are temporarily in New York for court appearances and the like, as well as some who are confined there for the duration of short sentences.
8
There is neither time, staff, nor opportunity to offer convicted inmates at MCC the kind of training or treatment that is sometimes available in a prison environment.
9
See Webster's Third International Dictionary 1804 (1961) (As "often" used, a "prison" is "an institution for the imprisonment of persons convicted of major crimes or felonies: a penitentiary as distinguished from a reformatory, local jail, or detention home").
10
Long-term incarceration and other postconviction sanctions have significant backward-looking, personal, and normative components. Because they are primarily designed to inflict pain or to "correct" the individual because of some past misdeed, the sanctions are considered punitive. See E. Pincoffs, The Rationale of Legal Punishment 51-57 (1966). See also Gregg v. Georgia, 428 U.S. 153, 184, and n. 30, 96 S.Ct. 2909, 2930, and n. 30, 49 L.Ed.2d 859 (opinion of STEWART, POWELL, and STEVENS, JJ.); H. Hart, Punishment and Responsibility 4-5 (1968); id., at 158-173; F. Dostoevskii, Crime and Punishment (Coulson transl. 1964); I. Kant, The Philosophy of Law 195-198 (W. Hastie transl. 1887).
By contrast, pretrial detention is acceptable as a means of assuring the detainee's presence at trial and of maintaining his and his fellows' safety in the meantime. Its focus is therefore essentially forward looking, general, and non-normative. Because this type of government sanction is primarily designed for the future benefit of the public at large and implies no moral judgment about the person affected, it is properly classified as regulatory. See H. Packer, The Limits of the Criminal Sanction 5 (1968).
The Court's bill of attainder cases have recognized the distinction between regulation and punishment in analyzing the concept of "legislative punishment." Thus, on the one hand, post bellum statutes excluding persons who had been sympathetic to the Confederacy from certain professions were found unconstitutional because of the backward-looking focus on the acts of specific individuals. Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356. However, later statutes requiring persons to take loyalty oaths before getting the benefits of certain labor legislation and before being employed in a public job were found constitutional because of their future orientation and more general purpose. American Communications Assn. v. Douds, 339 U.S. 382, 413-415, 70 S.Ct. 674, 691-692, 94 L.Ed. 925; Garner v. Board of Public Works, 341 U.S. 716, 722-725, 71 S.Ct. 909, 913-915, 95 L.Ed. 1317.
11
On at least two occasions, this Court has relied upon this presumption as a justification for shielding a person awaiting trial from potentially oppressive governmental actions. McGinnis v. Royster, 410 U.S. 263, 273, 93 S.Ct. 1055, 1061, 35 L.Ed.2d 282. ("[I]t would hardly be appropriate for the State to undertake in the pretrial detention period programs to rehabilitate a man still clothed with a presumption of innocence"); Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 ("Unless [the] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning"). These cases demonstrate that the presumption—or, as it was called last Term, the "assumption" of innocence that is indulged until evidence has convinced a jury to the contrary beyond a reasonable doubt, see Taylor v. Kentucky, 436 U.S. 478, 484 n. 12, 98 S.Ct. 1930, 1934 n.12, 56 L.Ed.2d 468, colors all of the government's actions toward persons not yet convicted. In sum, although there may be some question as to what it means to treat a person as if he were guilty, there can be no dispute that the government may never do so at any point in advance of conviction.
Relying on nothing more than the force of assertion, and without even mentioning McGinnis and Stack, the Court states that the presumption of innocence "has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun." Ante, at 533. But having so recently reiterated that the presumption is "fundamental," see Taylor v. Kentucky, supra, at 483, 98 S.Ct., at 1934, I cannot believe the Court means what it seems to be saying.
12
In many instances, detention will occur although the risk of flight is exceedingly low. This is because there is "a large class of persons for whom any bail at all is 'excessive bail.' They are the people loosely referred to as 'indigents.' Studies of the operation of the bail system have demonstrated that even at the very lowest levels of bail—say $500, where the bail bond premium may be only $25 or $50—there is a very substantial percentage of persons who do not succeed in making bail and are therefore held in custody pending trial." Packer, supra n. 10, at 216.
13
American jurisdictions have traditionally relied on a pretrial system of "bail or jail" to assure that arrestees appear at trial. Id., at 211. As to the bail aspect of the system, the Eighth Amendment is explicit that whatever steps the Government takes must not be excessive in relation to that purpose. Stack v. Boyle, supra, 342 U.S., at 5, 72 S.Ct., at 3. See 18 U.S.C. § 3146(a). Although not expressed in the Constitution, a like restraint on the other half of the pretrial system is a logical corollary to the "No Excessive Bail" Clause.
14
Indeed, this Court has recognized on previous occasions that individualization is sometimes necessary to prevent clearly punitive sanctions from being administered in a cruel and unusual manner. Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944; Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630.
15
Even if the Court were to apply this aspect of its test in a meaningful way, it would add little to the concept of punishment that is impermissible under the Due Process Clause. The Court states this test as follows: "[I]f a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees." Ante, at 539. It is readily apparent that this standard is nothing more than the "rational basis" requirement that even presumptively valid economic and social regulations must satisfy to pass muster under the Due Process Clause. Accordingly, if a court followed the path proposed in the quotation above, it would take unnecessary steps. For governmental activity that affects even minor interests and is "arbitrary or purposeless" is unconstitutional whether or not it is punishment. See, e. g., Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577; Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230.
16
Beyond excluding expressly intended punishment, the Court puts no restrictions on the goals that it recognizes as legitimate; under its test the Government need only show some rational nexus to security, order, or the apparently open-ended class of "operational concerns" facing the jail administrator, ante, at 540, and the restriction will be upheld.
17
"[The subjective approach] focuses on what an interested party intends rather than on what a detached observer thinks, thereby depriving the distinction [between punishment and other types of government activity] of any pretense to objectivity. If a prison warden thinks that his inmates are better off in his custody than they would be in the world outside, then by [the subjective] definition what he is administering is Treatment rather than Punishment. If the legislature that passes a compulsory commitment statute for narcotics addicts is motivated by hostility toward addicts, commitment is Punishment; if it is motivated by compassion, commitment is Treatment. And if it is motivated by both hostility and compassion? Other objections aside, what use can possibly be made of such a definition?
"Other objections cannot be left aside, because they demonstrate that [the subjective] definition not only is unintelligible but leads to quite dangerous consequences. . . . [For] [t]o allow the characterization to turn on the intention of the administrator is to encourage hypocrisy and unconscious self-deception." Packer, supra n. 10, at 32-33.
18
Accord, United States v. Lovett, 328 U.S. 303, 311, 66 S.Ct. 1073, 1076-1077, 90 L.Ed. 1252.
19
Some state courts have had to resort to such criteria even when analyzing the punitive content of legislation because many state assemblies publish no record of their deliberations. E. g., Starkweather v. Blair, 245 Minn. 371, 71 N.W.2d 869 (1955).
20
"[E]ven a clear legislative classification of a statute as 'non-penal' would not alter the fundamental nature of a plainly penal statute." Trop v. Dulles, 356 U.S., at 95, 78 S.Ct., at 595 (plurality opinion).
21
Although the Court's discussion of this point is laced with citations of prison cases such as Price, ante, at 545-547, it fails to mention a single precedent dealing with pretrial detainees. Cf. Houchins v. KQED, Inc., 438 U.S. 1, 37-38, 98 S.Ct. 2588, 2608-2609, 57 L.Ed.2d 553 (STEVENS, J., dissenting); O'Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702; Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36.
Having concluded that detainees' rights are "limited," the Court is reduced, for example, to analyzing restrictions on First Amendment rights in the deferential language of "minimum rationality"—language traditionally applied to restrictions on economic activities such as selling hot dogs or eyeglasses. New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511; Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563.
The First Amendment is not the only victim of the Court's analysis. It also devalues the Fourth Amendment as it applies to pretrial detainees. This is particularly evident with respect to the Court's discussion of body-cavity searches. Although it recognizes the detainee's constitutionally protected interest in privacy, the Court immediately demeans that interest by affording it "diminished scope." The reason for the diminution is the detainee's limited expectation of privacy. Ante, at 557, 558. At first blush, the Court's rationale appears to be that once the detainee is told that he will not be permitted to carry on any of his activities in private, he cannot "reasonably" expect otherwise. But "reasonable expectations of privacy" cannot have this purely subjective connotation lest we wake up one day to headlines announcing that henceforth the Government will not recognize the sanctity of the home but will instead enter residences at will. The reasonableness of the expectation must include an objective component that refers to those aspects of human activity that the "reasonable person" typically expects will be protected from unchecked Government observation. Cf. Katz v. United States, 389 U.S 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (Harlan, J., concurring). Hence, the question must be whether the Government may, without violating the Fourth Amendment, tell the detainee by words or by action that he has no or virtually no right to privacy. In my view, the answer to this question must be negative: despite the fact of his confinement and the impossibility of retreat to the privacy of his home, the detainee must have the right to privacy that we all retain when we venture out into public places. And surely the scope of that privacy is not so diminished that it does not include an expectation that body cavities will not be exposed to view. Absent probable cause, therefore, I would hold that such searches of pretrial detainees may not occur.
22
The classic example of the coincidence of punishment and the total deprivation of rights is voting. Thus, in Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551, the Court, although recognizing the importance of the right to vote, id., at 54, 94 S.Ct., at 2670, see Reynolds v. Sims, 377 U.S. 533, 561, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, found support in § 2 of the Fourteenth Amendment for denying convicted felons the right to vote. Cf. O'Brien v. Skinner, supra, (finding certain restrictions on absentee voting by pretrial detainees unconstitutional under the Equal Protection Clause). See also Goosby v. Osser, supra.
This is certainly not to say that the fact of conviction justifies the total deprivation of all constitutionally protected rights. Having abandoned the concept of the prisoner as a slave of the state, e. g., Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the Court has also rejected any ironclad exclusion of such persons from the protection of the Constitution. E. g., Wolff v. McDonnell, 418 U.S. 539, 555-556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935; Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495; Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263; Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212. Nonetheless, it also recognizes "that a prison inmate retains [only those] rights that are not inconsistent . . . with the legitimate penological objectives of the corrections system." Pell v. Procunier, supra, 417 U.S., at 822, 94 S.Ct., at 2804. Cf. Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384.
23
E. g., Wolff v. McDonnell, supra, 418 U.S., at 555, 94 S.Ct., at 2974; Richardson v. Ramirez, supra, 418 U.S., at 43-53, 94 S.Ct., at 2665-2670. The Court has probably relied upon historical analysis more often than on any of the other objective factors discussed in Kennedy v. Mendoza-Martinez, in determining whether some government sanction is punitive. E. g., Cummings v. Missouri, 4. Wall. 277, 18 L.Ed. 356; Ex parte Wilson, 114 U.S. 417, 426-429, 5 S.Ct. 935, 939-941, 29 L.Ed. 89; Mackin v. United States, 117 U.S. 348, 350-352, 6 S.Ct. 777, 778, 29 L.Ed. 909; Wong Wing v. United States, 163 U.S. 228, 237-238, 16 S.Ct. 977, 980-981, 41 L.Ed. 140.
24
The prospect of long-term incarceration facing an inmate increases his incentive to use illicit means to obtain luxuries that his imprisonment would otherwise deny him. Moreover, the fact of long-term incarceration of a large number of persons is conducive to the development of an institutional subeconomy and even subgovernment that often thrives on contraband and is inconsistent with the orderly operation of the facility. See, e. g., H. Mattick, The Prosaic Sources of Prison Violence, Occasional Papers of the University of Chicago Law School, No. 3, Mar. 15, 1972.
As the foregoing indicates, I believe the analysis of the four rules as applied to convicted prisoners is different from that as applied to pretrial detainees. Not only do the due process and other rights of the two have different scope, but the Government's security interests also differ. In my view, the courts below, in erroneously applying the same standards to both sets of inmates and in focusing on detainees, did not adequately develop the record with respect to convicts. Accordingly, I would remand the question of the validity of the four rules in the context of convicted prisoners for further proceedings. Cf. United States ex rel. Miller v. Twomey, 479 F.2d 701, 719 (CA7 1973).
25
In fact, the Government admitted below that the "restrictions on the possession of personal property" at MCC "serve the legitimate purpose of punishment" with respect to convicted inmates as well as the security purposes relied on in the present context of pretrial detainees. United States ex rel. Wolfish v. Levi, 439 F.Supp. 114, 153 (SDNY 1977).
26
This affront may itself constitute punishment because of its retributive character. Mendoza-Martinez makes clear that a sanction is punitive if it "will promote [a] traditional ai[m] of punishment—retribution." 372 U.S., at 168-169, 83 S.Ct., at 567-568. In its retributive aspect, " '[p]unishment is the way in which society expresses its denunciation for wrongdoing.' " Gregg v. Georgia, 428 U.S., at 184, and n. 30, 96 S.Ct., at 2930, and n. 30 (opinion of STEWART, POWELL, and STEVENS, JJ.), quoting Lord Justice Denning's testimony before the Royal Commission on Capital Punishment. See also letter from Judge Learned Hand to the editors of the University of Chicago Law Review (undated), reprinted in 22 U.Chi.L.Rev. 319 (1965); sources cited in the first paragraph of n. 10, supra. A focus of this "denunciatory" approach is the right of society, in significant respects, to deny the civic and human dignity of persons who have been convicted of doing wrong. Cf. Gregg v. Georgia, supra, at 173, 182, 96 S.Ct., at 2925, 2929 (fundamental violations of "human dignity" may constitute cruel and unusual punishment).
27
Indeed, the District Court found the searches entirely ineffective in some of their most offensive manifestations (e. g., anal searches). 439 F.Supp., at 147.
28
The District Court reserved decision on all of these practices save the restriction on receipt of hardback books until a full trial on the merits. It is accordingly appropriate to resolve these issues now without a remand.
29
I do not understand how the Court, having quite thoroughly demonstrated that the District Court applied an erroneous legal test, ante, at 530, 532-535, can nonetheless rely on that court's conclusion that no disputed issues of material fact prevented it from applying its erroneous test to the housing issue. Ante, at 541 n. 24.
30
"The decisive reality, however, not seriously open to debate, is that the rooms were designed and built to hold a single person, not more. The conclusion is compelled by an array of undisputed facts. To begin with, petitioners invoke the high authority of the architect who designed the MCC and who, in sworn testimony recorded in this court, has described a room like the ones he drew, housing one inmate, as a 'very basic planning principle.' Contrasting dormitories with rooms, he went on to say:
" 'Dormitories are a much more flexible kind of a thing, you see. That is the only real area in that particular facility. One of the reasons why there's been a tendency to go to single rooms is because it's a very clear and apparent violation of capacity when you try to put two people in a room. You can't put one and a third persons in a room. You can always up the population of a space, in which you put people in, and you can through more imaginative planning get better utilization of the space but there is an absoluteness of a room which is designed for one person, and to try to convert it into a two-person room, it's a clear violation of the capability of that space. There is no question there. There is more than enough, you know, objections to double-celling.'
"It is not necessary by any means to rely solely on what the architect said; the plain visual evidence of what he did demonstrates that the rooms he designed were for one inmate, not two or more. There is no place for each of two people, assigned by others to this unwanted intimacy, to walk or eat or write a letter or be quiet or be outside another's toilet. There is one shelf for toiletries and one for other things, neither adequate for two people. In the larger group of 100 double-celled rooms there is no place to hang a garment. The double-decker bunks by which these rooms have been changed from singles are so constructed that air from a vent, cold during our winter visit, blows out onto the upper bed a foot or so above body level. Many of the prisoners have blocked the vents to cope with this architecturally unintended unpleasantness. And, as a result the rooms are musty and unpleasant smelling. The single beds originally designed for these rooms each had two drawers built under them, mounted on casters for reasonably convenient use. In the reconstruction to house two inmates, it was found necessary to dismantle these caster arrangements; now each 'double' room has one of the old drawers lying loose under the lower bed or none at all for the two assigned occupants." United States ex rel. Wolfish v. United States, 428 F.Supp. 333, 336-337 (SDNY 1977) (footnote omitted; emphasis in original).
31
To these facts may be added some of the findings of the District Court: (1) Even at design capacity, "movement is more restricted at the MCC than in most other federal facilities," including those that exclusively house convicts, 439 F.Supp., at 125; (2) the doubling of the design capacity of individual cells leaves "no place for each of two people, assigned by others to this unwanted intimacy, to walk or eat or write a letter or be quiet or be outside another's toilet," places the person in the newly added upper bunk directly under the cold air vent, renders some of the furniture designed for the rooms unusable, and in general subjects the inmate to "foul odors, social stigma, humiliation, and denials of minimal privacy," 428 F.Supp., at 337, 339; (3) overall, the "living conditions [are] grossly short of minimal decency, and [have] no semblance of justification except [for] the general defense that the facilities of the Bureau of Prisons are in toto insufficient to house all the people consigned to them," 439 F.Supp., at 135. Without so stating expressly, the Court has rejected these findings. Ante, at 542-543. Because that rejection is not permissible absent a determination of clear error, and because no such determination has been made, its treatment of the District Court's findings in inexplicable. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129.
32
The ameliorative factors discussed by the Court, ante, at 542-543, might well convince the factfinder that the housing conditions are not punitive.
| 34
|
441 U.S. 506
99 S.Ct. 1854
60 L.Ed.2d 435
UNITED STATES, Petitioner,v.564.54 ACRES OF LAND, MORE OR LESS, situated in MONROE AND PIKE COUNTIES, PENNSYLVANIA, et al.
No. 78-488.
Argued March 27, 1979.
Decided May 14, 1979.
Syllabus
The Government initiated condemnation proceedings to acquire land on which respondent, a private nonprofit organization, operated summer camps. Before trial, respondent rejected the Government's offer to pay the fair market value of the property, demanding instead the cost of developing functionally equivalent substitute facilities at a new site. The District Court held that the "substitute facilities" measure of compensation was available only to governmental condemnees, and that respondent therefore was entitled only to the fair market value of its property. On interlocutory appeal, the Court of Appeals reversed and remanded, holding that private nonprofit owners can obtain substitute-facilities compensation if there is no "ready market" for the condemned property and if the facilities are "reasonably necessary to public welfare." At trial, the jury found that respondent was not entitled to such compensation and awarded the fair market value of the property. The Court of Appeals again reversed, concluding that a new trial was required because of erroneous jury instructions on the "reasonable necessity" requirement.
Held : Allowing respondent the fair market value of its property, rather than the cost of substitute facilities, is consistent with the principles of fairness underlying the Just Compensation Clause of the Fifth Amendment. Pp. 510-517.
(a) In giving content to the just-compensation requirement of the Fifth Amendment, this Court has sought to put the owner of condemned property "in as good a position pecuniarily as if his property had not been taken," Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236. But this principle of indemnity has not been given its full and literal force. Because of serious practical difficulties in assessing the worth an individual places on particular property, the Court has resorted to the concept of fair market value—what a willing buyer would pay in cash to a willing seller at the time of the taking—even though this measure does not encompass all values an owner may derive from his property. However, when market value is too difficult to ascertain or when such an award would depart too far from the indemnity principle, other standards of compensation are appropriate. United States v. Commodities Trading Corp., 339 U.S. 121, 123, 70 S.Ct. 547, 549, 94 L.Ed. 707. Pp. 510-513.
(b) Here, there are no circumstances that require suspension of the normal rules for determining just compensation. Respondent's property had a readily discernible market value. And an award reflecting that figure would not be unjust simply because it might preclude continuation of respondent's use. This Court has previously held that nontransferable values arising from the owner's unique need for the property are not compensable. That respondent is a nonprofit organization does not require a different result. Nor is it relevant whether respondent's camps were reasonably necessary to the public welfare, since respondent is under no legal or factual obligation to replace the camps, regardless of their social worth. And that the camps may have benefited the community does not warrant compensating respondent differently from other private owners, for the principle of indemnity focuses exclusively on the owner's loss. To the extent that denial of an award for the use value of respondent's property departs from the indemnity principle, it is justified by the necessity for a workable measure of valuation. Pp. 513-517.
576 F.2d 983, reversed.
Stephen R. Barnett, Washington, D. C., for petitioner.
H. Ober Hess, Philadelphia, Pa., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
At issue in this case is the proper measure of compensation when the Government condemns property owned by a private nonprofit organization and operated for a public purpose. In particular, we must decide whether the Just Compensation Clause of the Fifth Amendment1 requires payment of replacement cost rather than fair market value of the property taken.
2
* Respondent, the Southeastern Pennsylvania Synod of the Lutheran Church in America, operates three nonprofit, summer camps along the Delaware River. In June 1970, the United States initiated a condemnation proceeding to acquire respondent's land for a public recreational project. Before trial, the Government offered to pay respondent $485,400 as the fair market value of its property. Respondent rejected the offer and demanded approximately $5.8 million, the asserted cost of developing functionally equivalent substitute facilities at a new site. This substantial award was necessary, respondent contended, because the new facilities would be subject to financially burdensome regulations from which existing facilities were exempt under grandfather provisions.
3
In a pretrial ruling, the District Court held that the "substitute facilities," or replacement cost, measure of compensation was available only to governmental condemnees, and that respondent therefore was entitled only to the fair market value of its property. App. 38-48. On interlocutory appeal, the Court of Appeals for the Third Circuit reversed. 506 F.2d 796 (1974). Relying on other appellate decisions,2 the Court of Appeals determined that in condemnations of property belonging to States or their subdivisions, the Fifth Amendment requires an award of replacement cost "so that the functions carried out by or on behalf of members of the community may be continued." Id., at 799-800.3 Since the Fifth Amendment refers expressly to private but not to public property, the court reasoned that the Framers could not have "intended to impose a greater obligation of indemnification" toward public entities then toward private owners. Id., at 801. Accordingly, the Court of Appeals applied standards governing condemnations of publicly owned property, and held that substitute-facilities compensation was available to private nonprofit owners if there was no "ready market" for the condemned property and if the facilities were "reasonably necessary to public welfare." Id., at 800. The case was remanded to the District Court for consideration of whether respondent's property met this test.
4
After a 10-day trial, the District Court instructed the jury regarding the prerequisites of a substitute-facilities award. Specifically, the court charged that there was no "ready market" for respondent's facilities if "the fair market value of the condemned property [was] substantially less than the cost of constructing functionally equivalent substitute facilities." See 576 F.2d 983, 992 n.9 (1978). The District Court further instructed that the property was "reasonably necessary to public welfare" if it "fulfill[ed] a community need or purpose." See id., at 995 n.16. The jury found that respondent was not entitled to substitute-facilities compensation, and after considering additional evidence, awarded $740,000 as the fair market value of the property.
5
A different panel of the Court of Appeals reversed. Id., at 996. Although the court found that the jury instructions on the ready-market issue were not fundamentally in error,4 it disagreed with the District Court's interpretation of the reasonable-necessity requirement. Under the Court of Appeals' theory, this test was met if the facility "provide[d] a benefit to the community that [would] not be as fully provided after the facility [was] taken." Id., at 995. Because the jury instruction had been framed in terms of necessity rather than community benefit, the court concluded that a new trial was required. One judge, concurring, agreed that the trial court's charge had not been consistent with the Court of Appeals' interlocutory decision, but argued that the prior opinion, although controlling, was incorrect. Id., at 996-1000. The third member of the panel dissented on the ground that the District Court had adhered to the principles previously enunciated in the interlocutory opinion. Id., at 1001-1010.
6
We granted certiorari, 439 U.S. 978, 99 S.Ct. 562, 58 L.Ed.2d 649 (1978), and now reverse.
II
A.
7
In giving content to the just compensation requirement of the Fifth Amendment, this Court has sought to put the owner of condemned property "in as good a position pecuniarily as if his property had not been taken." Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708 (1934).5 However, this principle of indemnity has not been given its full and literal force. Because of serious practical difficulties in assessing the worth an individual places on particular property at a given time, we have recognized the need for a relatively objective working rule. See United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336 (1943); United States v. Cors, 337 U.S. 325, 332, 69 S.Ct. 1086, 1090, 93 L.Ed. 1392 (1949). The Court therefore has employed the concept of fair market value to determine the condemnee's loss. Under this standard, the owner is entitled to receive "what a willing buyer would pay in cash to a willing seller" at the time of the taking. United States v. Miller, supra, 317 U.S. at 374, 63 S.Ct., at 280; accord, City of New York v. Sage, 239 U.S. 57, 61, 36 S.Ct. 25, 26, 60 L.Ed. 143 (1915); United States v. Virginia Electric & Power Co., 365 U.S. 624, 633, 81 S.Ct. 784, 790, 5 L.Ed.2d 838 (1961); Almota Farmers & Elevator and Warehouse Co. v. United States, 409 U.S. 470, 474, 93 S.Ct. 791, 794, 35 L.Ed.2d 1 (1973).
8
Although the market-value standard is a useful and generally sufficient tool for ascertaining the compensation required to make the owner whole,6 the Court has acknowledged that such an award does not necessarily compensate for all values an owner may derive from his property. Thus, we have held that fair market value does not include the special value of property to the owner arising from its adaptability to his particular use. United States v. Miller, supra, 317 U.S. at 374-375, 63 S.Ct. at 280; United States v. Cors, supra, 337 U.S. at 332, 69 S.Ct. at 1090. As Mr. Justice Frankfurter wrote for the Court in Kimball Laundry Co. v. United States, 338 U.S. 1, 5, 69 S.Ct. 1434, 1437, 93 L.Ed. 1765 (1949):
9
"The value of property springs from subjective needs and attitudes; its value to the owner may therefore differ widely from its value to the taker. Most things, however, have a general demand which gives them a value transferable from one owner to another. As opposed to such personal and variant standards as value to the particular owner whose property has been taken, this transferable value has an external validity which makes it a fair measure of public obligation to compensate the loss incurred by an owner as a result of the taking of his property for public use. In view, however, of the liability of all property to condemnation for the common good, loss to the owner of nontransferable values deriving from his unique need for property or idiosyncratic attachment to it, like loss due to an exercise of the police power, is properly treated as part of the burden of common citizenship."
10
See 1 L. Orgel, Valuation Under the Law of Eminent Domain § 14 (2d ed. 1953). In short, the concept of fair market value has been chosen to strike a fair "balance between the public's need and the claimant's loss" upon condemnation of property for a public purpose. United States v. Toronto, Hamilton & Buffalo Nav. Co., 338 U.S. 396, 402, 70 S.Ct. 217 (1949); see also United States ex rel. TVA v. Powelson, 319 U.S. 266, 280, 63 S.Ct. 1047, 1055, 87 L.Ed. 1390 (1943).
11
But while the indemnity principle must yield to some extent before the need for a practical general rule, this Court has refused to designate market value as the sole measure of just compensation. For there are situations where this standard is inappropriate. As we held in United States v. Commodities Trading Corp., 339 U.S. 121, 123, 70 S.Ct. 547, 549, 94 L.Ed. 707 (1950):
12
"[W]hen market value has been too difficult to find, or when its application would result in manifest injustice to owner or public, courts have fashioned and applied other standards. . . . Whatever the circumstances under which such constitutional questions arise, the dominant consideration always remains the same: What compensation is 'just' both to an owner whose property is taken and to the public that must pay the bill?" See also United States v. Cors, supra, 337 U.S., at 332, 69 S.Ct., at 1090; United States v. Toronto, Hamilton & Buffalo Nav. Co., supra, 338 U.S., at 402, 70 S.Ct., at 221; United States v. Miller, supra, 317 U.S., at 374, 63 S.Ct., at 280.7 Hence, we must determine whether application of the fair-market-value standard here would be impracticable or whether an award of market value would diverge so substantially from the indemnity principle as to violate the Fifth Amendment.
B
13
The instances in which market value is too difficult to ascertain generally involve property of a type so infrequently traded that we cannot predict whether the prices previously paid, assuming there have been prior sales, would be repeated in a sale of the condemned property. See United States v. Toronto, Hamilton & Buffalo Nav. Co., supra, 338 U.S., at 402, 70 S.Ct., at 221; cf. United States v. Miller, 317 U.S., at 374-375, 63 S.Ct., at 280. This might be the case, for example, with respect to public facilities such as roads or sewers. But respondent's property does not fall in this category.8 There was a market for camps, albeit not an extremely active one. The Government's expert witness presented evidence concerning 11 recent sales of comparable facilities in the vicinity, and estimated that respondent's camps could have been sold within six months to a year after they were offered for sale. Tr. 256-258, 263-264, 269-276. Indeed, respondent's own expert testified that he had prepared an appraisal of the camps' fair market value as of the date of the taking. App. 143-144. And the Court of Appeals implicitly acknowledged that the market value of nonprofit property is ordinarily ascertainable since application of the court's "ready market" criterion requires assessment of fair market value. See n.4, supra. Thus, it seems clear that respondent's property had a readily discernible market value. The only remaining inquiry is whether such an award would impermissibly deviate from the indemnity principle.
14
Emphasizing that the primary value of the condemned property lies in the use to which it is put, respondent argues that compensating only for market value would be unjust in the present context. Because new facilities would bear financial burdens imposed by regulations to which the existing camps were not subject, an award of market value would preclude continuation of respondent's use. Brief for Respondent 5. Respondent therefore concludes that such a recovery would be insufficient to indemnify for its loss. See 506 F.2d, at 798.
15
However, it is not at all unusual that property uniquely adapted to the owner's use has a market value on condemnation which falls far short of enabling the owner to preserve that use. Such a situation may often arise, for example, where a family home has been built to the owner's tastes, but is old and deteriorated, or where property, like respondent's camps, is exempt from regulations applicable to new facilities. Cf. 1 L. Orgel, supra, § 37, pp. 172-173. Yet the Court has previously determined that nontransferable values arising from the owner's unique need for the property are not compensable, and has found that this divergence from full indemnification does not violate the Fifth Amendment. See supra, at 511-512.
16
We are unable to discern why a different result should obtain here. That respondent is a nonprofit organization may provide some basis for distinguishing it from business enterprises, since the uses to which commercial property is put can often be valued in terms of the capitalized earnings produced. See 506 F.2d at 799; 1 L. Orgel, supra, at § 157. Cf. United States v. Toronto, Hamilton & Buffalo Nav. Co., 338 U.S., at 403, 70 S.Ct., at 221. But there is no reason to treat respondent differently from the many private homeowners and other noncommercial property owners who neither derive earnings from their property nor hold it for investment purposes. Unless the Just Compensation Clause mandates a Government subsidy for nonprofit organizations, a proposition we find patently implausible, respondent's nonprofit status does not require us to reject application of the fair-market-value standard.
17
Nor is it relevant in this case whether respondent's camps were reasonably necessary to the public welfare. In condemnations of property owned by public entities, lower courts have applied the reasonable-necessity standard to determine if the entity has an obligation to continue providing the facilities taken. See, e. g., 506 F.2d, at 800; United States v. Streets, Alleys & Public Ways in Stoutsville, 531 F.2d 882, 886 (CA8 1976); United States v. Certain Property in Borough of Manhattan, 403 F.2d 800 (CA2 1968). This duty may be legally compelled or arise from necessity; "the distinction has little practical significance in public condemnation." Id., at 803. If the condemnee has such a duty to replace the property, these courts have reasoned that only an award of the costs of developing requisite substitute facilities will compensate for the loss.
18
Whatever the merits of this reasoning with respect to public entities, see n.3, supra, it does not advance analysis here. For respondent is under no legal or factual obligation to replace the camps, regardless of their social worth. As a private entity, respondent is free to allocate its resources to serve its own institutional objectives, which may or may not correspond with community needs. Awarding replacement cost on the theory that respondent would continue to operate the camps for a public purpose would thus provide a windfall if substitute facilities were never acquired, or if acquired, were later sold or converted to another use.
19
Finally, that the camps may have benefited the community does not warrant compensating respondent differently from other private owners. The community benefit which the camps conferred might provide an indication of the public's loss upon condemnation of the property. But we cannot accept the Court of Appeals' conclusion that this loss is relevant to assessing the compensation due a private entity. The court noted that "[o]ne rationale for the substitute facilities measure is to indemnify not only the owner of the condemned facilities, but those who have an interest in the continuing existence of the facilities, in this case, according to the Synod, the general public." 576 F.2d, at 989 n.4. The guiding principle of just compensation, however, is that the owner of the condemned property "must be made whole but is not entitled to more." Olson v. United States, 292 U.S., at 255, 54 S.Ct., at 708. Respondent did not hold its property as the public's trustee and thus is not entitled to be indemnified for the public's loss. Moreover, many condemnees use their property in a manner that confers a benefit on the community, and there is no sound basis for considering this factor only in condemnations of property owned by nonprofit organizations. And to make the measure of compensation depend on a jury's subjective estimation of whether a particular use "benefits" the community would conflict with this Court's efforts to develop relatively objective valuation standards.
20
In sum, we find no circumstances here that require suspension of the normal rules for determining just compensation. Respondent, like other private owners, is not entitled to recover for nontransferable values arising from its unique need for the property. To the extent denial of such an award departs from the indemnity principle, it is justified by the necessity for a workable measure of valuation. Allowing respondent the fair market value of its property is thus consistent with the "basic equitable principles of fairness," United States v. Fuller, 409 U.S. 488, 490, 93 S.Ct. 801, 803, 35 L.Ed.2d 16 (1973), underlying the Just Compensation Clause.
The judgment of the Court of Appeals is
21
Reversed.
22
Mr. Justice POWELL took no part in the consideration or decision of this case.
23
Mr. Justice WHITE, concurring.
24
The Court rejects the claim that the measure of compensation in this case is the cost of substitute facilities rather than the fair market value of the taken property, here camps owned by a private, nonprofit corporation. I am in full agreement. The substitute-facilities doctrine is unrelated to fair market value and does not depend on whether fair market value is readily ascertainable; rather, it unabashedly demands additional compensation over and above market value in order to allow the replacement of the condemned facility.1 In those cases where it has been applied, primarily where public facilities have been condemned, the basic premise is that the condemnee is under some obligation to continue the functions performed on the taken property.2 But I do not understand how a duty to replace the condemned facility justifies paying more than market value. Obviously, replacing the old with a new facility will cost more than the value of the old, but the new facility itself will be more valuable and last longer.3 This is true with respect to condemnation of any facility, whether or not there is an obligation to reproduce it, and I had not understood the Just Compensation Clause to guarantee subsidies to either private or public projects. Similarly, if more demanding building codes or other regulations will enhance the cost of replacement, it is reasonable to assume that compliance itself will be of some benefit to the owner and hence need not be financed by the condemnor.
25
It may be that a condemnee's obligation to continue the function performed on the condemned property and hence to replace the facility taken will result in loss of value in that the condemnee does not have the option of investing his fair-market-value award in a project that will provide the condemnee with greater net benefits than would replacement of the taken facility. But the existing law imposing the obligation presumably embodies the policy judgment that alternative projects, from which the condemnee might or might not derive more benefits, should not be made available to the condemnee. Even if some incremental loss due to legal constraints on the obligated condemnee's options is thus imposed, it is sheer speculation to assume that this loss will be equal to the full increase in cost of the facility to be reproduced or replaced. It seems to me that the argument for enhanced compensation to the obligated condemnee is nothing more than a particularized submission that the award should exceed fair market value because of the unique uses to which the property has been put by the condemnee or because of the unique value the property has for it.
26
I thus agree with the Court that the Just Compensation Clause does not require payment of the cost of a substitute facility where the condemnee is a private organization, even if it could be said that such an owner is in some sense obligated to replace the property4 or that the public has a stake in the continuance of the function that is being conducted on the taken property.5 I also have substantial doubt that the Clause should be any differently construed and applied where public property is condemned, whether or not the function conducted on the property must be continued at another location.6 That issue, however, is not before the Court and is expressly put aside for another day.
1
The Fifth Amendment of the Constitution provides in pertinent part: "nor shall private property be taken for public use, without just compensation."
2
See, e. g., United States v. Certain Property in Borough of Manhattan, 403 F.2d 800 (CA2 1968); United States v. Board of Education of Mineral County, 253 F.2d 760 (CA4 1958); Washington v. United States, 214 F.2d 33 (CA9), cert. denied, 348 U.S. 862, 75 S.Ct. 86, 99 L.Ed. 679 (1954); Fort Worth v. United States, 188 F.2d 217 (CA5 1951).
3
This Court has not passed on the propriety of substitute-facilities compensation for public condemnees. Although the Court of Appeals cited Brown v. United States, 263 U.S. 78, 44 S.Ct. 92, 68 L.Ed. 171 (1923), as "the genesis of the substitution of facilities method of measuring fair compensation," 506 F.2d, at 802, that case addressed the scope of the Government's condemnation power, not the compensation requisite under the Fifth Amendment. In light of our disposition of this case, we express no opinion on the appropriate measure of compensation for publicly owned property.
4
The Court of Appeals, however, did seek to clarify the ready-market criterion, holding that "regardless of whether the Synod could have sold the camps, and regardless of whether the camps had fair market value, this condition . . . is met if the Synod could not have replaced the camps' facilities in the market-place for a cost roughly equivalent to the fair market value of the camps." 576 F.2d, at 991.
5
Accord Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, 13 S.Ct. 622, 626, 37 L.Ed. 463 (1893); United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed. 336 (1943); United States v. Virginia Electric & Power Co., 365 U.S. 624, 633, 81 S.Ct. 784, 790, 5 L.Ed.2d 838 (1961); United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970); Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 473-474, 93 S.Ct. 791, 794, 35 L.Ed.2d 1 (1973).
6
The standard is most accurate with respect to readily salable articles such as merchandise, because the value of such property is ordinarily what it can command in the marketplace. See United States v. Toronto, Hamilton & Buffalo Nav. Co., 338 U.S. 396, 404, 70 S.Ct. 217, 222, 94 L.Ed. 195 (1949).
7
To be sure, the issue in these cases was whether the asserted market value exceeded the compensation necessary to indemnify the condemnees. But "the principle, as stated in the Commodities Trading opinion, must work both ways." In re Valuation Proceedings, 445 F.Supp. 994, 1031 (Sp.Ct.R.R.R.A.) (Friendly, J.), appeals dism'd without prejudice sub nom. Blanchette v. U.S. Railway Assn., 434 U.S. 993, 98 S.Ct. 626, 54 L.Ed.2d 487 (1977).
8
The jury's determination that the camps had a market value of $740,000 does not resolve the issue whether market value was in fact ascertainable. That issue depends on whether evidence could feasibly be obtained to present a jury question on the appropriate market value. Such an inquiry is related to the one an appellate court would undertake in reviewing the sufficiency of the evidence to support a jury's market-value determination. However, in the latter circumstance, the issue would be whether evidence was in fact presented from which the jury could rationally arrive at its result.
1
See 576 F.2d 983, 991 (CA3 1978), quoted ante, at 510 n. 4; United States v. Streets, Alleys & Public Ways in Stoutsville, 531 F.2d 882 (CA8 1976); United States v. Certain Property in Borough of Manhattan, 403 F.2d 800 (CA2 1968); United States v. Certain Land in Borough of Brooklyn, 346 F.2d 690 (CA2 1965); United States v. Board of Education of Mineral County, 253 F.2d 760 (CA4 1958); National Conference of Commissioners on Uniform State Laws, Uniform Eminent Domain Code, § 1004(b).
2
See, e. g., United States v. Certain Land in Borough of Brooklyn, supra, at 694; 576 F.2d, at 992-995.
3
The substitute-facilities measure applied by the Court of Appeals in this case appears to contemplate payment of reproduction costs, not replacement costs, see id, at 999, and n. 2 (Stern, J., concurring); 506 F.2d 796, 799-800 (CA3 1974). As noted in United States v. Certain Property in Borough of Manhattan, supra, at 804, courts applying the substitute-facilities measure have taken different positions regarding whether depreciation should be deducted from the cost of a new facility.
4
The Court states that respondent "is under no legal or factual obligation to replace the camps. . . ." Ante, at 515. Although respondent, which is subject to the Pennsylvania Nonprofit Corporation Act of 1972, 15 Pa.Cons.Stat. § 7549 (1975), apparently is not legally obliged to replace its camps, other private, nonprofit enterprises may be under a legal obligation imposed by their own articles of incorporation, by the terms under which gifts are made to them, or directly by state law—to continue financing of certain facilities or functions. Indeed, private organizations operated for profit may be under contractual or other legal obligation to replace a condemned facility.
5
For purposes of deciding whether an obligation to replace requires a condemnation award greater than market value, it is seemingly irrelevant to whom the benefits of ownership may be said to accrue, be this the "public" or private entities.
6
Of course, even if this is the proper interpretation of the Just Compensation Clause, Congress could enact legislation providing for compensation under the substitute-facilities approach in those situations in which the United States condemns public property.
| 34
|
441 U.S. 677
99 S.Ct. 1946
60 L.Ed.2d 560
Geraldine G. CANNON, Petitioner,v.UNIVERSITY OF CHICAGO et al.
No. 77-926.
Argued Jan. 9, 1979.
Decided May 14, 1979.
Syllabus
Section 901(a) of Title IX of the Education Amendments of 1972 (Title IX) provides in part that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Petitioner instituted litigation in Federal District Court, alleging that she had been excluded from participation in the medical education programs of respondent private universities on the basis of her gender and that these programs were receiving federal financial assistance at the time of her exclusion. The District Court granted respondents' motions to dismiss the complaints since Title IX does not expressly authorize a private right of action by a person injured by a violation of § 901, and since the court concluded that no private remedy should be inferred. The Court of Appeals agreed that the statute did not contain an implied private remedy. It concluded, inter alia, that Congress intended the remedy in § 902 of Title IX, establishing a procedure for the termination of federal financial support for institutions that violated § 901, to be the exclusive means of enforcement, and that Title VI of the Civil Rights Act of 1964, upon which Title IX was patterned, did not include an implied private cause of action.
Held: Petitioner may maintain her lawsuit, despite the absence of any express authorization for it in Title IX. Pp. 688-717.
(a) Before concluding that Congress intended to make a remedy available to a special class of litigants, a court must carefully analyze the following four factors that Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, identifies as indicative of such an intent: (1) whether the statute was enacted for the benefit of a special class of which the plaintiff is a member, (2) whether there is any indication of legislative intent to create a private remedy, (3) whether implication of such a remedy is consistent with the underlying purposes of the legislative scheme, and (4) whether implying a federal remedy is inappropriate because the subject matter involves an area basically of concern to the States. P. 688.
(b) The first factor is satisfied here since Title IX explicitly confers a benefit on persons discriminated against on the basis of sex, and petitioner is clearly a member of that class for whose special benefit the statute was enacted. Pp. 689-694.
(c) As to the second factor, the legislative history of Title IX rather plainly indicates that Congress intended to create a private cause of action. Title IX was patterned after Title VI of the Civil Rights Act of 1964, and the drafters of Title IX explicitly assumed that it would be interpreted and enforced in the same manner as Title VI, which had already been construed by lower federal courts as creating a private remedy when Title IX was enacted. Pp. 694-703.
(d) The third factor is satisfied, since implication of a private remedy will not frustrate the underlying purposes of the legislative scheme but, instead, will assist in achieving the statutory purpose of providing individual citizens effective protection against discriminatory practices. Pp. 703-708.
(e) As to the fourth factor since the Civil War, the Federal Government and the federal courts have been the primary and powerful reliances in protecting citizens against invidious discrimination of any sort, including that on the basis of sex. Moreover, it is the expenditure of federal funds that provides the justification for this particular statutory prohibition. Pp. 708-709.
(f) Respondents' principal argument against implying a cause of action under Title IX—that it is unwise to subject admissions decisions of universities to judicial scrutiny at the behest of disappointed applicants on a case-by-case basis because this kind of litigation is burdensome and inevitably will have an adverse effect on the independence of members of university committees—is without merit. The congressional majorities that passed Title VI of the Civil Rights Act of 1964 and Title IX rejected the same argument when advanced by the congressional opponents of the two statutes, and there is nothing to demonstrate that private Title VI litigation has been so costly or voluminous that either the academic community or the courts have been unduly burdened, or that university administrators will be so concerned about the risk of litigation that they will fail to discharge their important responsibilities in an independent and professional manner. Pp. 709-710.
(g) Nor is there any merit to respondents' arguments, starting from the premise that Title IX and Title VI should receive the same construction, that a comparison of Title VI with other titles of the Civil Rights Act of 1964 demonstrates that Congress created express private remedies whenever it found them desirable, and that certain excerpts from the legislative history of Title VI foreclose the implication of a private remedy. The fact that other provisions of a complex statutory scheme create express remedies has not been accepted as a sufficient reason, by itself, for refusing to imply an otherwise appropriate remedy under a separate section, and none of the excerpts from the legislative history cited by respondents evidences any hostility toward an implied private remedy for terminating the offending discrimination. Pp. 710-716.
559 F.2d 1063, reversed and remanded.
John M. Cannon, Chicago, Ill., for petitioner.
Wade H. McCree, Jr., Sol. Gen. of the U. S. Dept. of Justice, Washington, D. C., for federal respondents, supporting petitioner.
Stuart Bernstein, Chicago, Ill., for non-federal respondents.
Mr. Justice STEVENS delivered the opinion of the Court.
1
Petitioner's complaints allege that her applications for admission to medical school were denied by the respondents because she is a woman.1 Accepting the truth of those allegations for the purpose of its decision, the Court of Appeals held that petitioner has no right of action against respondents that may be asserted in a federal court. 559 F.2d 1063. We granted certiorari to review that holding. 438 U.S. 914, 98 S.Ct. 3142, 57 L.Ed.2d 1159.
2
Only two facts alleged in the complaints are relevant to our decision. First, petitioner was excluded from participation in the respondents' medical education programs because of her sex. Second, these education programs were receiving federal financial assistance at the time of her exclusion. These facts, admitted arguendo by respondents' motion to dismiss the complaints, establish a violation of § 901(a) of Title IX of the Education Amendments of 1972 hereinafter Title IX).2
That section, in relevant part, provides:
3
"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . ."3
4
The statute does not, however, expressly authorize a private right of action by a person injured by a violation of § 901. For that reason, and because it concluded that no private remedy should be inferred, the District Court granted the respondents' motions to dismiss. 406 F.Supp. 1257, 1259.
5
The Court of Appeals agreed that the statute did not contain an implied private remedy. Noting that § 902 of Title IX establishes a procedure for the termination of federal financial support for institutions violating § 901, the Court of Appeals concluded that Congress intended that remedy to be the exclusive means of enforcement.4 It recognized that the statute was patterned after Title VI of the Civil Rights Act of 1964 (hereinafter Title VI),5 but rejected petitioner's argument that Title VI included an implied private cause of action. 559 F.2d, at 1071-1075.
6
After the Court of Appeals' decision was announced, Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, which authorizes an award of fees to prevailing private parties in actions to enforce Title IX.6 The court therefore granted a petition for rehearing to consider whether, in the light of that statute, its original interpretation of Title IX had been correct. After receiving additional briefs, the court concluded that the 1976 Act was not intended to create a remedy that did not previously exist.7 The court also noted that the Department of Health, Education, and Welfare had taken the position that a private cause of action under Title IX should be implied,8 but the court disagreed with that agency's interpretation of the Act. In sum, it adhered to its original view, 559 F.2d, at 1077-1080.
7
The Court of Appeals quite properly devoted careful attention to this question of statutory construction. As our recent cases particularly Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26—demonstrate, the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person. Instead, before concluding that Congress intended to make a remedy available to a special class of litigants, a court must carefully analyze the four factors that Cort identifies as indicative of such an intent.9 Our review of those factors persuades us, however, that the Court of Appeals reached the wrong conclusion and that petitioner does have a statutory right to pursue her claim that respondents rejected her application on the basis of her sex. After commenting on each of the four factors, we shall explain why they are not overcome by respondents' countervailing arguments.
8
* First, the threshold question under Cort is whether the statute was enacted for the benefit of a special class of which the plaintiff is a member. That question is answered by looking to the language of the statute itself. Thus, the statutory reference to "any employee of any such common carrier" in the 1893 legislation requiring railroads to equip their cars with secure "grab irons or handholds," see 27 Stat. 532, 531, made "irresistible" the Court's earliest "inference of a private right of action"—in that case in favor of a railway employee who was injured when a grab iron gave way. Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 40, 36 S.Ct. 482, 484, 60 L.Ed. 874.10
9
Similarly, it was statutory language describing the special class to be benefited by § 5 of the Voting Rights Act of 196511 that persuaded the Court that private parties within that class were implicitly authorized to seek a declaratory judgment against a covered State. Allen v. State Board of Elections, 393 U.S. 544, 554-555, 89 S.Ct. 817, 825-826, 22 L.Ed.2d 1.12 The dispositive language in that statute—"no person shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, § 5]"—is remarkably similar to the language used by Congress in Title IX. See n. 3, supra.
10
The language in these statutes—which expressly identifies the class Congress intended to benefit—contrasts sharply with statutory language customarily found in criminal statutes, such as that construed in Cort, supra, and other laws enacted for the protection of the general public.13 There would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices.14
11
Unquestionably, therefore, the first of the four factors identified in Cort favors the implication of a private cause of action. Title IX explicitly confers a benefit on persons discriminated against on the basis of sex, and petitioner is clearly a member of that class for whose special benefit the statute was enacted.
12
Second, the Cort analysis requires consideration of legislative history. We must recognize, however, that the legislative history of a statute that does not expressly create or deny a private remedy will typically be equally silent or ambiguous on the question. Therefore, in situations such as the present one "in which it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an intention to create a private cause of action, although an explicit purpose to deny such cause of action would be controlling." Cort, 422 U.S., at 82, 95 S.Ct., at 2090 (emphasis in original).15 But this is not the typical case. Far from evidencing any purpose to deny a private cause of action, the history of Title IX rather plainly indicates that Congress intended to create such a remedy.
13
Title IX was patterned after Title VI of the Civil Rights Act of 1964.16 Except for the substitution of the word "sex" in Title IX to replace the words "race, color, or national origin" in Title VI, the two statutes use identical language to describe the benefited class.17 Both statutes provide the same administrative mechanism for terminating federal financial support for institutions engaged in prohibited discrimination.18 Neither statute expressly mentions a private remedy for the person excluded from participation in a federally funded program. The drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been during the preceding eight years.19
14
In 1972 when Title IX was enacted, the critical language in Title VI had already been construed as creating a private remedy. Most particularly, in 1967, a distinguished panel of the Court of Appeals for the Fifth Circuit squarely decided this issue in an opinion that was repeatedly cited with approval and never questioned during the ensuing five years.20 In addition, at least a dozen other federal courts reached similar conclusions in the same or related contexts during those years.21 It is always appropriate to assume that our elected representatives, like other citizens, know the law; in this case, because of their repeated references to Title VI and its modes of enforcement, we are especially justified in presuming both that those representatives were aware of the prior interpretation of Title VI and that that interpretation reflects their intent with respect to Title IX.
15
Moreover, in 1969, in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1, this Court had interpreted the comparable language in § 5 of the Voting Rights Act as sufficient to authorize a private remedy.22 Indeed, during the period between the enactment of Title VI in 1964 and the enactment of Title IX in 1972, this Court had consistently found implied remedies—often in cases much less clear than this.23 It was after 1972 that this Court decided Cort v. Ash and the other cases cited by the Court of Appeals in support of its strict construction of the remedial aspect of the statute.24 We, of course, adhere to the strict approach followed in our recent cases, but our evaluation of congressional action in 1972 must take into account its contemporary legal contest. In sum, it is not only appropriate but also realistic to presume that Congress was thoroughly familiar with these unusually important precedents from this and other federal courts and that it expected its enactment to be interpreted in conformity with them.
16
It is not, however, necessary to rely on these presumptions. The package of statutes of which Title IX is one part also contains a provision whose language and history demonstrate that Congress itself understood Title VI, and thus its companion, Title IX, as creating a private remedy. Section 718 of the Education Amendments authorizes federal courts to award attorney's fees to the prevailing parties, other than the United States, in private actions brought against public educational agencies to enforce Title VI in the context of elementary and secondary education.25 The language of this provision explicitly presumes the availability of private suits to enforce Title VI in the education context.26 For many such suits, no express cause of action was then available; hence Congress must have assumed that one could be implied under Title VI itself.27 That assumption was made explicit during the debates on § 718.28 It was also aired during the debates on other provisions in the Education Amendments of 197229 and on Title IX itself,30 and is consistent with the Executive Branch's apparent understanding of Title VI at the time.31
17
Finally, the very persistence—before 1972 and since, among judges and executive officials, as well as among litigants and their counsel,32 and even implicit in decisions of this Court33— of the assumption that both Title VI and Title IX created a private right of action for the victims of illegal discrimination and the absence of legislative action to change that assumption provide further evidence that Congress at least acquiesces in, and apparently affirms, that assumption. See n. 7, supra. We have no doubt that Congress intended to create Title IX remedies comparable to those available under Title VI and that it understood Title VI as authorizing an implied private cause of action for victims of the prohibited discrimination.34
18
Third, under Cort, a private remedy should not be implied if it would frustrate the underlying purpose of the legislative scheme. On the other hand, when that remedy is necessary or at least helpful to the accomplishment of the statutory purpose, the Court is decidedly receptive to its implication under the statute.35 Title IX, like its model Title VI, sought to accomplish two related, but nevertheless somewhat different, objectives. First, Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices. Both of these purposes were repeatedly identified in the debates on the two statutes.36
19
The first purpose is generally served by the statutory procedure for the termination of federal financial support for institutions engaged in discriminatory practices.37 That remedy is, however, severe and often may not provide an appropriate means of accomplishing the second purpose if merely an isolated violation has occurred.38 In that situation, the violation might be remedied more efficiently by an order requiring an institution to accept an applicant who had been improperly excluded.39 Moreover, in that kind of situation it makes little sense to impose on an individual, whose only interest is in obtaining a benefit for herself, or on HEW, the burden of demonstrating that an institution's practices are so pervasively discriminatory that a complete cut-off of federal funding is appropriate. The award of individual relief to a private litigant who has prosecuted her own suit is not only sensible but is also fully consistent with—and in some cases even necessary to—the orderly enforcement of the statute.40
20
The Department of Health, Education, and Welfare, which is charged with the responsibility for administering Title IX, perceives no inconsistency between the private remedy and the public remedy.41 On the contrary, the agency takes the unequivocal position that the individual remedy will provide effective assistance to achieving the statutory purposes. See n. 8,supra. The agency's position is unquestionably correct.42
21
Fourth, the final inquiry suggested by Cort is whether implying a federal remedy is inappropriate because the subject matter involves an area basically of concern to the States. No such problem is raised by a prohibition against invidious discrimination of any sort, including that on the basis of sex. Since the Civil War, the Federal Government and the federal courts have been the " 'primary and powerful reliances' " in protecting citizens against such discrimination. Steffel v. Thompson, 415 U.S. 452, 464, 94 S.Ct. 1209, 1218, 39 L.Ed.2d 505 (emphasis in original), quoting F. Frankfurter & J. Landis, The Business of the Supreme Court 65 (1928). Moreover, it is the expenditure of federal funds that provides the justification for this particular statutory prohibition. There can be no question but that this aspect of theCort analysis supports the implication of a private federal remedy.
22
In sum, there is no need in this case to weigh the four Cort factors; all of them support the same result. Not only the words and history of Title IX, but also its subject matter and underlying purposes, counsel implication of a cause of action in favor of private victims of discrimination.
II
23
Respondents' principal argument against implying a cause of action under Title IX is that it is unwise to subject admissions decisions of universities to judicial scrutiny at the behest of disappointed applicants on a case-by-case basis. They argue that this kind of litigation is burdensome and inevitably will have an adverse effect on the independence of members of university committees.
24
This argument is not original to this litigation. It was forcefully advanced in both 1964 and 1972 by the congressional opponents of Title VI and Title IX,43 and squarely rejected by the congressional majorities that passed the two statutes. In short, respondents' principal contention is not a legal argument at all; it addresses a policy issue that Congress has already resolved.
25
History has borne out the judgment of Congress. Although victims of discrimination on the basis of race, religion, or national origin have had private Title VI remedies available at least since 1965, see n. 21, supra, respondents have not come forward with any demonstration that Title VI litigation has been so costly or voluminous that either the academic community or the courts have been unduly burdened. Nothing but speculation supports the argument that university administrators will be so concerned about the risk of litigation that they will fail to discharge their important responsibilities in an independent and professional manner.44
III
26
Respondents advance two other arguments that deserve brief mention. Starting from the premise that Title IX and Title VI should receive the same construction, respondents argue (1) that a comparison of Title VI with other Titles of the Civil Rights Act of 1964 demonstrates that Congress created express private remedies whenever it found them desirable;45 and (2) that certain excerpts from the legislative history of Title VI foreclose the implication of a private remedy.46
27
Even if these arguments were persuasive with respect to Congress' understanding in 1964 when it passed Title VI, they would not overcome the fact that in 1972 when it passed Title IX, Congress was under the impression that Title VI could be enforced by a private action and that Title IX would be similarly enforceable. See supra, at 696-699. "For the relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was." Brown v. GSA, 425 U.S. 820, 828, 96 S.Ct. 1961, 1966, 48 L.Ed.2d 402. But each of respondents' arguments is, in any event, unpersuasive.
28
The fact that other provisions of a complex statutory scheme create express remedies has not been accepted as a sufficient reason for refusing to imply an otherwise appropriate remedy under a separate section. See, e. g., J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423; Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407. Rather, the Court has generally avoided this type of "excursion into extrapolation of legislative intent," Cort v. Ash, 422 U.S., at 83 n. 14, 95 S.Ct., at 2090, unless there is other, more convincing, evidence that Congress meant to exclude the remedy. See National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S., at 458-461, 94 S.Ct., at 693-694.
29
With one set of exceptions, the excerpts from the legislative history cited by respondents as contrary to implication of a private remedy under Title VI, were all concerned with a procedure for terminating federal funding.47 None of them evidences any hostility toward an implied private remedy to terminate the offending discrimination. They are consistent with the assumption expressed frequently during the debates that such a judicial remedy—either through the kind of broad construction of state action under § 1983 adopted by the Court of Appeals for the Fourth Circuit in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (1963),48 or through an implied remedy49—would be available to private litigants regardless of how the fund-cutoff issue was resolved.
30
The only excerpt relied upon by respondents that deals precisely with the question whether the victim of discrimination has a private remedy under Title VI was a comment by Senator Keating. In it, he expressed disappointment at the administration's failure to include his suggestion for an express remedy in its final proposed bill.50 Our analysis of the legislative history convinces us, however, that neither the administration's decision not to incorporate that suggestion expressly in its bill, nor Senator Keating's response to that decision, is indicative of a rejection of a private right of action against recipients of federal funds. Instead, the former appears to have been a compromise aimed at protecting individual rights without subjecting the Government to suits,51 while the latter is merely one Senator's isolated expression of a preference for an express private remedy.52 In short, neither is inconsistent with the implication of such a remedy. Nor is there any other indication in the legislative history that any Member of Congress voted in favor of the statute in reliance on an understanding that Title VI did not include a private remedy.
IV
31
When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights. But the Court has long recognized that under certain limited circumstances the failure of Congress to do so is not inconsistent with an intent on its part to have such a remedy available to the persons benefited by its legislation. Title IX presents the atypical situation in which all of the circumstances that the Court has previously identified as supportive of an implied remedy are present. We therefore conclude that petitioner may maintain her lawsuit, despite the absence of any express authorization for it in the statute.
32
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
33
It is so ordered.
34
Mr. Chief Justice BURGER concurs in the judgment.
35
Mr. Justice REHNQUIST, with whom Mr. Justice STEWART joins, concurring.
36
Having joined the Court's opinion in this case, my only purpose in writing separately is to make explicit what seems to me already implicit in that opinion. I think the approach of the Court, reflected in its analysis of the problem in this case and cases such as Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974), is quite different from the analysis in earlier cases such as J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). The question of the existence of a private right of action is basically one of statutory construction. See ante, at 688. And while state courts of general jurisdiction still enforcing the common law as well as statutory law may be less constrained than are federal courts enforcing laws enacted by Congress, the latter must surely look to those laws to determine whether there was an intent to create a private right of action under them.
37
We do not write on an entirely clean slate, however, and the Court's opinion demonstrates that Congress, at least during the period of the enactment of the several Titles of the Civil Rights Act tended to rely to a large extent on the courts to decide whether there should be a private right of action, rather than determining this question for itself. Cases such as J. I. Case Co. v. Borak, supra, and numerous cases from other federal courts, gave Congress good reason to think that the federal judiciary would undertake this task.
38
I fully agree with the Court's statement that "[w]hen Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights." Ante, at 717. It seems to me that the factors to which I have here briefly adverted apprise the lawmaking branch of the Federal Government that the ball, so to speak, may well now be in its court. Not only is it "far better" for Congress to so specify when it intends private litigants to have a cause of action, but for this very reason this Court in the future should be extremely reluctant to imply a cause of action absent such specificity on the part of the Legislative Branch.
39
Mr. Justice WHITE, with whom Mr. Justice BLACKMUN joins, dissenting.
40
In avowedly seeking to provide an additional means to effectuate the broad purpose of § 901 of the Education Amendments of 1972, 20 U.S.C. § 1681, to end sex discrimination in federally funded educational programs, the Court fails to heed the concomitant legislative purpose not to create a new private remedy to implement this objective. Because in my view the legislative history and statutory scheme show that Congress intended not to provide a new private cause of action, and because under our previous decisions such intent is controlling,1 I dissent.
41
* The Court recognizes that because Title IX was explicitly patterned after Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., it is difficult to infer a private cause of action in the former but not in the latter. I have set out once before my reasons for concluding that a new private cause of action to enforce Title VI should not be implied, University of California Regents v. Bakke, 438 U.S. 265, 379, 98 S.Ct. 2733, 2794, 57 L.Ed.2d 750 (1978) (separate opinion of WHITE, J.), and I find nothing in the legislative materials reviewed by the Court that convinces me to the contrary. Rather, the legislative history, like the terms of Title VI itself, makes it abundantly clear that the Act was and is a mandate to federal agencies to eliminate discrimination in federally funded programs. Although there was no intention to cut back on private remedies existing under 42 U.S.C. § 1983 to challenge discrimination occurring under color of state law, there is no basis for concluding that Congress contemplated the creation of private remedies either against private parties who previously had been subject to no constitutional or statutory obligation not to discriminate, or against federal officials or agencies involved in funding allegedly discriminatory programs.
42
The Court argues that because funding termination, authorized by § 602, 42 U.S.C. § 2000d-1, is a drastic remedy, Congress must have contemplated private suits in order directly and less intrusively to terminate the discrimination allegedly being practiced by the recipient institutions. But the Court's conclusion does not follow from its premise because funding termination was not contemplated as the only—or even the primary agency action to end discrimination. Rather, Congress considered termination of financial assistance to be a remedy of last resort, and expressly obligated federal agencies to take measures to terminate discrimination without resorting to termination of funding.
43
Title VI was enacted on the proposition that it was contrary at least to the "moral sense of the Nation"2 to expend federal funds in a racially discriminatory manner. This proposition was not new, for every President since President Franklin Roosevelt had, by Executive Order, prohibited racial discrimination in hiring in certain federally assisted programs.3 Further, Congress was aware that most agencies dispensing federal funds already had "authority to refuse or terminate assistance for failure to comply with a variety of requirements imposed by statute or by administrative action."4 But Congress was plainly dissatisfied with agency efforts to ensure the nondiscriminatory use of federal funds;5 and the predicate for Title VI was the belief that "the time [had] come . . . to declare a broad principle that is right and necessary, and to make it effective for every Federal program involving financial assistance by grant, loan or contract."6
44
Far from conferring new private authority to enforce the federal policy of nondiscrimination, Title VI contemplated agency action to be the principal mechanism for achieving this end. The proponents of Title VI stressed that it did not "confer sweeping new authority, of undefined scope, to Federal departments and agencies," but instead was intended to require the exercise of existing authority to end discrimination by fund recipients, and to furnish the procedure for this purpose.7 Thus, § 601 states the federal policy of nondiscrimination, and § 602 mandates that the agencies achieve compliance by refusing to grant or continue assistance or by "any other means authorized by law." Under § 602, cutting off funds is forbidden unless the agency determines "that compliance cannot be secured by voluntary means." As Senator Humphrey explained:
45
"[Title VI] encourages Federal departments and agencies to be resourceful in finding ways of ending discrimination voluntarily without forcing a termination of funds needed for education, public health, social welfare, disaster relief, and other urgent programs. Cutoff of funds needed for such purposes should be the last step, not the first, in an effective program to end racial discrimination." 110 Cong.Rec. 6546 (1964).8
46
To be sure, Congress contemplated that there would be litigation brought to enforce Title VI. The "other means" provisions of § 602 include agency suits to enforce contractual antidiscrimination provisions and compliance with agency regulations, as well as suits brought by the Department of Justice under Title IV of the 1964 Act, where the recipient is a public entity.9 Congress also knew that there would be private suits to enforce § 601; but these suits were not authorized by § 601 itself but by 42 U.S.C. § 1983.10 Every excerpt from the legislative history cited by the Court shows full awareness that private suits could redress discrimination contrary to the Constitution and Title VI, if the discrimination were imposed by public agencies; not one statement suggests contemplation of lawsuits against recipients not acting under color of state law.11 Senator Humphrey was quite correct in asserting that the individual's "right to go to court and institute suit" for violation of the Fourteenth Amendment or § 601, see ante, at 712-714, n. 49, was not limited by the presence of alternative enforcement mechanisms in § 602. Section 1983 provides a private remedy for deprivations under color of state law of any rights "secured by the Constitution and laws," and nothing in Title VI suggests an intent to create an exception to this historic remedy for vindication of federal rights as against contrary state action.12 The legislative history shows, however, that Congress did not intend to add to this already existing private remedy. Particularly, Congress did not intend to create a private remedy for discrimination practiced not under color of state law but by private parties or institutions.13
II
47
The Court further concludes that even if it cannot be persuasively demonstrated that Title VI created a private right of action, nonetheless this remedy should be inferred in Title IX because prior to its enactment several lower courts had entertained private suits to enforce the prohibition on racial discrimination in Title VI. Once again, however, there is confusion between the existing § 1983 right of action to remedy denial of federal rights under color of state law—which, as Congress recognized,14 would encompass suits to enforce the nondiscrimination mandate of § 601—and the creation of a new right of action against private discrimination. In the case the Court relies upon most heavily, Bossier Parish School Board v. Lemon, 370 F.2d 847 (CA5), cert. denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967), the plaintiff class had alleged racial discrimination in violation of both Title VI and the Fourteenth Amendment, and, accordingly, the Attorney General was allowed to intervene under Title IV of the 1964 Act. In concluding that plaintiffs could sue to enforce § 601, the Court of Appeals expressed its view that the prohibition merely repeated "the law as laid down in hundreds of decisions, independent of the statute." 370 F.2d, at 852. Clearly, the defendant was in violation of "the law . . . independent of the statute" only because it was a state entity, and the court was correct in concluding that § 602 did not withdraw the already existing right to sue to enforce this prohibition. However, to the extent the court based its holding on the proposition that an individual protected by a statute always has a right to enforce that statute,15 it was in error;16 and an erroneous interpretation of Title VI should not be compounded through importation into Title IX under the guise of effectuating legislative intent. There is not one statement in the legislative history indicating that the Congress that enacted Title IX was aware of the Bossier litigation, much less that it adopted the particular theory relied on to uphold plaintiffs' standing in that case.17
48
The Court's reliance on § 718 of the 1972 Act, 20 U.S.C. § 1617, is likewise misplaced. That provision authorizes attorney's fees to the prevailing party other than the United States upon the entry of a final order by a federal court "against a local educational agency, a State (or any agency thereof), or the United States (or any agency thereof), for failure to comply with any provision of this chapter"—which deals with emergency school aid, 20 U.S.C. §§ 1601-1619—"or for discrimination on the basis of race, color, or national origin in violation of Title VI of the Civil Rights Act of 1964, or the fourteenth amendment to the Constitution of the United States as they pertain to elementary and secondary education." Based on this provision, it is argued that Title VI itself must have authorized private actions. However, whatever may be the value of the opinion of Congress in 1972 as to the meaning of the 1964 Civil Rights Act, the attorney's fees provision—far from intimating the existence of a remedy against private discrimination—refers only to suits against public institutions. Insofar as the provision refers to "discrimination . . . in violation of Title VI," one must strain to conclude that this was meant to encompass private suits against federal agencies whose mandate under Title VI was to enforce § 601's nondiscrimination provision applicable to all recipients of federal funds. Rather, in referring to Title VI and the Fourteenth Amendment, § 718 did no more than provide for fees in § 1983 suits brought to end discrimination under color of state law.18
III
49
The legislative intent not to create a new private remedy for enforcement of Title VI or Title IX cannot be ignored simply because in other cases involving analogous language the Court has recognized private remedies. The recent cases inferring a private right of action to enforce various civil rights statutes relied not merely upon the statutory language granting the right sought to be enforced, but also upon the clear compatibility, despite the absence of an explicit legislative mandate, between private enforcement and the legislative purpose demonstrated in the statute itself. Having concluded that 42 U.S.C. § 1982 prohibited private as well as public racial discrimination in the sale or lease of property, the Court had little choice but to hold that aggrieved individuals could enforce this prohibition, for there existed no other remedy to redress such violations of the statute.19 The Court's reliance onAllen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), is equally unwarranted. The cause of action there recognized—for declaratory relief that a voting change is subject to the authorization requirements of § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c—served to trigger the enforcement mechanism provided in the statute itself. The Court pointedly declined to infer a private cause of action to enforce the suspension requirement of § 4 of the Act, 393 U.S., at 552554, 89 S.Ct., at 825; nor may those allegedly discriminated against bring suit to test voting changes in covered units against the substantive standard of § 5, either directly or through judicial review of the Attorney General's preclearance decision, Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 53 L.Ed.2d 506 (1977). The cause of action granted today is of a very different nature. It does not trigger the enforcement scheme provided in §§ 902 and 903, 20 U.S.C. §§ 1682, 1683, but entirely displaces that scheme in favor of a different approach.20
50
Congress decided in Title IX, as it had in Title VI, to prohibit certain forms of discrimination by recipients of federal funds. Where those recipients were acting under color of state law, individuals could obtain redress in the federal courts for violation of these prohibitions. But, excepting post-Civil War enactments dealing with racial discrimination in specified situations, these forms of discrimination by private entities had not previously been subject to individual redress under federal law, and Congress decided to reach such discrimination not by creating a new remedy for individuals, but by relying on the authority of the Federal Government to enforce the terms under which federal assistance would be provided. Whatever may be the wisdom of this approach to the problem of private discrimination, it was Congress' choice, not to be overridden by this Court.
51
Mr. Justice POWELL, dissenting.
52
I agree with Mr. Justice WHITE that even under the standards articulated in our prior decisions, it is clear that no private action should be implied here. It is evident from the legislative history reviewed in his dissenting opinion that Congress did not intend to create a private action through Title IX of the Education Amendments of 1972. It also is clear that Congress deemed the administrative enforcement mechanism it did create fully adequate to protect Title IX rights. But as mounting evidence from the courts below suggests, and the decision of the Court today demonstrates, the mode of analysis we have applied in the recent past cannot be squared with the doctrine of the separation of powers. The time has come to reappraise our standards for the judicial implication of private causes of action.1
53
Under Art. III, Congress alone has the responsibility for determining the jurisdiction of the lower federal courts. As the Legislative Branch, Congress also should determine when private parties are to be given causes of action under legislation it adopts. As countless statutes demonstrate, including Titles of the Civil Rights Act of 1964,2 Congress recognizes that the creation of private actions is a legislative function and frequently exercises it. When Congress chooses not to provide a private civil remedy, federal courts should not assume the legislative role of creating such a remedy and thereby enlarge their jurisdiction.
54
The facts of this case illustrate the undesirability of this assumption by the Judicial Branch of the legislative function. Whether every disappointed applicant for admission to a college or university receiving federal funds has the right to a civil-court remedy under Title IX is likely to be a matter of interest to many of the thousands of rejected applicants. It certainly is a question of vast importance to the entire higher educational community of this country. But quite apart from the interests of the persons and institutions affected, respect for our constitutional system dictates that the issue should have been resolved by the elected representatives in Congress after public hearings, debate, and legislative decision. It is not a question properly to be decided by relatively uninformed federal judges who are isolated from the political process.
55
In recent history, the Court has tended to stray from the Art. III and separation-of-powers principle of limited jurisdiction. This, I believe, is evident from a review of the more or less haphazard line of cases that led to our decision in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). The "four factor" analysis of that case is an open invitation to federal courts to legislate causes of action not authorized by Congress. It is an analysis not faithful to constitutional principles and should be rejected. Absent the most compelling evidence of affirmative congressional intent, a federal court should not infer a private cause of action.
56
* The implying of a private action from a federal regulatory statute has been an exceptional occurrence in the past history of this Court. A review of those few decisions where such a step has been taken reveals in almost every case special historical circumstances that explain the result, if not the Court's analysis. These decisions suggest that the doctrine of implication applied by the Court today not only represents judicial assumption of the legislative function, but also lacks a principled precedential basis.
A.
57
The origin of implied private causes of actions in the federal courts is said to date back to Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 (1916). A close look at the facts of that case and the contemporary state of the law indicates, however, that Rigsby's reference to the "inference of a private right of action," id., at 40, 36 S.Ct. at 484, carried a far different connotation than the isolated passage quoted by the Court, ante, at 689 n. 10, might suggest. The narrow question presented for decision was whether the standards of care defined by the Federal Safety Appliance Act's penal provisions applied to a tort action brought against an interstate railroad by an employee not engaged in interstate commerce at the time of his injury. The jurisdiction of the federal courts was not in dispute, the action having been removed from state court on the ground that the defendant was a federal corporation. See Moore v. Chesapeake & O. R. Co., 291 U.S. 205, 215 n. 6, 54 S.Ct. 402, 406, 78 L.Ed. 755 (1934). Under the regime of Swift v. Tyson, 16 Pet. 1, 41 U.S. 1, 10 L.Ed. 865 (1842), then in force, the Court was free to create the substantive standards of liability applicable to a common-law negligence claim brought in federal court. The practice of judicial reference to legislatively determined standards of care was a common expedient to establish the existence of negligence. See Thayer, Public Wrong and Private Action, 27 Harv.L.Rev. 317 (1914). Rigsby did nothing more than follow this practice, and cannot be taken as authority for the judicial creation of a cause of action not legislated by Congress. Moore v. Chesapeake & O. R. Co., supra, at 215-216, 54 S.Ct. at 406; Jacobson v. New York, N. H. & H. R. Co., 206 F.2d 153, 157-158 (CA1 1953) (Magruder, C. J.), aff'd per curiam, 347 U.S. 909, 74 S.Ct. 474, 98 L.Ed. 1067 (1954).
58
For almost 50 years after Rigsby, this Court recognized an implied private cause of action in only one other statutory context.3 Four decisions held that various provisions of the Railway Labor Act of 1926 could be enforced in a federal court. The case for implication of judicial remedies was especially strong with respect to this Act, as Congress had repealed its predecessor, Title III of the Transportation Act of 1920, after Pennsylvania R. Co. v. Railroad Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536 (1923), and Pennsylvania Federation v. Pennsylvania R. Co., 267 U.S. 203, 45 S.Ct. 307, 69 L.Ed. 574 (1925), had held that judicial enforcement of its terms was not available. Convinced that Congress had meant to accomplish more through the 1926 Act, and faced with the absence of an express administrative or judicial enforcement mechanism, the Court in Texas & N. O. R. Co. v. Railway Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034 (1930), upheld an injunction enforcing the Act's prohibition of employer interference in employees' organizational activities. Buttressed by 1934 amendments to the Act that indicated congressional approval of this step, the Court in Virginian R. Co. v. Railway Employees, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937), extended judicial enforcement to the Act's requirement that an employer bargain with its employees' authorized representative. Finally, in Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), and Tunstall v. Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944), the Court further held that the duty of a union not to discriminate among its members also could be enforced through the federal courts.4 In each of these cases enforcement of the Act's various requirements could have been restricted to actions brought by the Board of Mediation (later the Mediation Board), rather than by private parties. But whatever the scope of the judicial remedy, the implication of some kind of remedial mechanism was necessary to provide the enforcement authority Congress clearly intended.5
59
During this same period, the Court frequently turned back private plaintiffs seeking to imply causes of action from federal statutes. See, e. g., Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963); T. I. M. E., Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959); General Committee v. Southern Pacific Co., 320 U.S. 338, 64 S.Ct. 142, 88 L.Ed. 85 (1943); General Committee v. Missouri-K.-T. R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76 (1943); Switchmen v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). Throughout these cases, the focus of the Court's inquiry generally was on the availability of means other than a private action to enforce the statutory duty at issue. Even in cases where the statute might be said to have been enacted for the benefit of a special class comprising the plaintiff, the factor to which the Court today attaches so much importance, ante, at 689-693, and n. 13, the Court refused to create a private action if Congress had provided some other means of enforcing such duties. See, e. g., Switchmen v. National Mediation Board, supra, at 300-301, 64 S.Ct. at 96-97.
60
A break in this pattern occurred in J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). There the Court held that a private party could maintain a cause of action under § 14(a) of the Securities Exchange Act of 1934, in spite of Congress' express creation of an administrative mechanism for enforcing that statute. I find this decision both unprecedented6 and incomprehensible as a matter of public policy. The decision's rationale, which lies ultimately in the judgment that "[p]rivate enforcement of the proxy rules provides a necessary supplement to Commission action," 377 U.S., at 432, 84 S.Ct., at 1560, ignores the fact that Congress, in determining the degree of regulation to be imposed on companies covered by the Securities Exchange Act, already had decided that private enforcement was unnecessary. More significant for present purposes, however, is the fact that Borak, rather than signaling the start of a trend in this Court, constitutes a singular and, I believe, aberrant interpretation of a federal regulatory statute.
61
Since Borak, this Court has upheld the implication of private causes of actions derived from federal statutes in only three extremely limited sets of circumstances. First, the Court in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969); and Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), recognized the right of private parties to seek relief for violations of 42 U.S.C. §§ 1981 and 1982. But to say these cases "implied" rights of action is somewhat misleading, as Congress at the time these statutes were enacted expressly referred to private enforcement actions.7 Furthermore, as in the Railway Labor Act cases, Congress had provided no alternative means of asserting these rights. Thus, the Court was presented with the choice between regarding these statutes as precatory or recognizing some kind of judicial proceeding.
62
Second, the Court in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), permitted private litigants to sue to enforce the preclearance provisions of § 5 of the Voting Rights Act of 1965. As the Court seems to concede, this decision was reached without substantial analysis,ante, at 690, and n. 12, and in my view can be explained only in terms of this Court's special and traditional concern for safeguarding the electoral process.8 In addition, as Mr. Justice WHITE notes, the remedy implied was very limited, thereby reducing the chances that States would be exposed to frivolous or harassing suits.9
63
Finally, the Court in Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed. 128 (1971), ratified 25 years of lower-court precedent that had held a private cause of action available under the Securities and Exchange Commission's Rule 10b-5. As the Court concedes, ante, at 692 n. 13, this decision reflects the unique history of Rule 10b-5, and did not articulate any standards of general applicability.
64
These few cases applying Borak must be contrasted with the subsequent decisions where the Court refused to imply private actions. In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), the Court refused to permit private suits in derogation of administrative remedies to enforce Title IV of the Labor-Management Reporting and Disclosure Act of 1959, in spite of that statute's command, inter alia, that "every member in good standing . . . shall have the right to vote for or otherwise support the candidate or candidates of his choice . . . ." 29 U.S.C. § 481(e).10 In National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974), the Court reversed a lower court's implication of a private action to challenge violations of the Rail Passenger Service Act of 1970, in light of the Attorney General's express enforcement authority. And in Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975), we refused to allow private actions under the Securities Investor Protection Act of 1970, which also was enforceable by administrative proceedings and Government suits.11
B
65
It was against this background of almost invariable refusal to imply private actions, absent a complete failure of alternative enforcement mechanisms and a clear expression of legislative intent to create such a remedy, that Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), was decided. In holding that no private action could be brought to enforce 18 U.S.C. § 610 (1970 ed. and Supp. III), a criminal statute, the Court referred to four factors said to be relevant to determining generally whether private actions could be implied. 422 U.S., at 78, 95 S.Ct., at 208712. As Mr. Justice WHITE suggests, ante, at 718-719, and n. 1, these factors were meant only as guideposts for answering a single question, namely, whether Congress intended to provide a private cause of action. The conclusion in that particular case was obvious. But, as the opinion of the Court today demonstrates, the Cort analysis too easily may be used to deflect inquiry away from the intent of Congress, and to permit a court instead to substitute its own views as to the desirability of private enforcement.
66
Of the four factors mentioned in Cort, only one refers expressly to legislative intent. The other three invite independent judicial lawmaking. Asking whether a statute creates a right in favor of a private party, for example, begs the question at issue. What is involved is not the mere existence of a legal right, but a particular person's right to invoke the power of the courts to enforce that right.13 See n. 1, supra. Determining whether a private action would be consistent with the "underlying purposes" of a legislative scheme permits a court to decide for itself what the goals of a scheme should be, and how those goals should be advanced. See Note, 43 Ford.L.Rev. 441, 454-455, 458 (1974). Finally, looking to state law for parallels to the federal right simply focuses inquiry on a particular policy consideration that Congress already may have weighed in deciding not to create a private action.
67
That the Cort analysis too readily permits courts to override the decision of Congress not to create a private action is demonstrated conclusively by the flood of lower-court decisions applying it. Although from the time Cort was decided until today this Court consistently has turned back attempts to create private actions, see Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208; Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 30 (1978); Piper v. Chris-Craft Industries, 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977), other federal courts have tended to proceed in exactly the opposite direction. In the four years since we decided Cort, no less than 20 decisions by the Courts of Appeals have implied private actions from federal statutes. Local 714, Amalgamated Transit Union v. Greater Portland Transit Dist., 589 F.2d 1 (CA1 1978) (§ 13(c) of Urban Mass Transportation Act of 1964); Bratton v. Shiffrin, 585 F.2d 223 (CA7 1978) (§ 1007(a) of Federal Aviation Act of 1958), cert. pending, No. 78-1398; Redington v. Touche Ross & Co., 592 F.2d 617 (CA2) (§ 17(a) of Securities Exchange Act of 1934), cert. granted, 439 U.S. 979, 99 S.Ct. 563, 59 L.Ed.2d --- (1978); Lodge 1858, AFGE v. Webb, 188 U.S.App.D.C. 233, 580 F.2d 496 (§ 203 of National Aeronautics and Space Act of 1958), cert. denied sub nom. Government Employees v. Frosch, 439 U.S. 927, 99 S.Ct. 311, 58 L.Ed.2d 319 (1978); Riggle v. California, 577 F.2d 579 (CA9 1978) (Rivers and Harbors Appropriation Act); Lewis v. Transamerica Corp., 575 F.2d 237 (CA9) (§ 206 of Investment Advisers Act of 1940), cert. granted, 439 U.S. 952, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978); Davis v. Southeastern Community College, 574 F.2d 1158 (CA4 1978) (§ 504 of Rehabilitation Act of 1973), cert. granted, 439 U.S. 1065, 99 S.Ct. 830, 59 L.Ed.2d 30 (1979); Benjamins v. British European Airways, 572 F.2d 913 (CA2 1978) (Art. 28(1) of Warsaw Convention), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979); Abrahamson v. Fleschner, 568 F.2d 862 (CA2 1977) (§ 206 of Investment Advisers Act of 1940), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978); Association of Data Processing Service Orgs. v. Federal Home Loan Bank Board, 568 F.2d 478 (CA6 1977) (§ 11(e) of Federal Home Loan Bank Act); Wilson v. First Houston Investment Corp., 566 F.2d 1235 (CA5 1978) (§ 206 of Investment Advisers Act of 1940), cert. pending, No. 77-1717; New York Stock Exchange, Inc. v. Bloom, 183 U.S.App.D.C. 217, 562 F.2d 736 (1977) (§§ 16 and 21 of Glass-Steagall Act), cert. denied, 435 U.S. 942, 98 S.Ct. 1520, 55 L.Ed.2d 538 (1978); Daniel v. International Brotherhood of Teamsters, 561 F.2d 1223 (CA7 1977) (§ 17(a) of Securities Act of 1933), rev'd on other grounds, 439 U.S. 551, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979); United Handicapped Federation v. Andre, 558 F.2d 413 (CA8 1977) (§ 504 of Rehabilitation Act of 1973); Nedd v. United Mine Workers, 556 F.2d 190 (CA3 1977) (§ 302 of Labor Management Relations Act, 1947), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 757 (1978); Kipperman v. Academy Life Ins. Co., 554 F.2d 377 (CA9 1977) (39 U.S.C. § 3009); Kampmeier v. Nyquist, 553 F.2d 296 (CA2 1977) (§ 504 of Rehabilitation Act of 1973); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (CA7 1977) (same); McDaniel v. University of Chicago and Argonne, 548 F.2d 689 (CA7 1977) (§ 1 of Davis-Bacon Act), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978); Hughes v. Dempsey-Tegeler & Co., 534 F.2d 156 (CA9) (§ 6 of Securities Exchange Act of 1934), cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180 (1976). It defies reason to believe that in each of these statutes Congress absentmindedly forgot to mention an intended private action. Indeed, the accelerating trend evidenced by these decisions attests to the need to re-examine the Cort analysis.
II
68
In my view, the implication doctrine articulated in Cort and applied by the Court today engenders incomparably greater problems than the possibility of occasionally failing to divine an unexpressed congressional intent. If only a matter of statutory construction were involved, our obligation might be to develop more refined criteria which more accurately reflect congressional intent. "But the unconstitutionality of the course pursued has now been made clear" and compels us to abandon the implication doctrine of Cort. Erie R. Co. v. Tompkins, 304 U.S. 64, 77-78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938).
69
As the above-cited 20 decisions of the Courts of Appeals illustrate, Cort allows the Judicial Branch to assume policymaking authority vested by the Constitution in the Legislative Branch. It also invites Congress to avoid resolution of the often controversial question whether a new regulatory statute should be enforced through private litigation. Rather than confronting the hard political choices involved, Congress is encouraged to shirk its constitutional obligation and leave the issue to the courts to decide.14 When this happens, the legislative process with its public scrutiny and participation has been bypassed, with attendant prejudice to everyone concerned. Because the courts are free to reach a result different from that which the normal play of political forces would have produced, the intended beneficiaries of the legislation are unable to ensure the full measure of protection their needs may warrant. For the same reason, those subject to the legislative constraints are denied the opportunity to forestall through the political process potentially unnecessary and disruptive litigation. Moreover, the public generally is denied the benefits that are derived from the making of important societal choices through the open debate of the democratic process.
70
The Court's implication doctrine encourages, as a corollary to the political default by Congress, an increase in the governmental power exercised by the federal judiciary. The dangers posed by judicial arrogation of the right to resolve general societal conflicts have been manifest to this Court throughout its history. See Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 222, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 188-197, 94 S.Ct. 2940, 2952-2957, 41 L.Ed.2d 678 (1974) (POWELL, J., concurring); Eccles v. Peoples Bank, 333 U.S. 426, 432, 68 S.Ct. 641, 644, 92 L.Ed. 784 (1948); Ashwander v. TVA, 297 U.S. 288, 345-348, 56 S.Ct. 466, 482-483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Muskrat v. United States, 219 U.S. 346, 362, 31 S.Ct. 250, 255, 55 L.Ed. 246 (1911); Sinking-Fund Cases, 99 U.S. 700, 718, 25 L.Ed. 496 (1879) ("One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule"); Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436 (1792). As the Court observed only last Term:
71
"Our system of government is, after all, a tripartite one, with each branch having certain defined functions delegated to it by the Constitution. While '[i]t is emphatically the province and duty of the judicial department to say what the law is,' Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), it is equally—and emphatically—the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought.
72
* * * * *
73
"Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto." TVA v. Hill, 437 U.S. 153, 194-195, 98 S.Ct. 2279, 2301-2302, 57 L.Ed.2d 117 (1978).
74
See also United States v. New York Telephone Co., 434 U.S. 159, 179, 98 S.Ct. 364, 375, 54 L.Ed.2d 376 (1977) (STEVENS, J., dissenting) ("The principle of limited federal jurisdiction is fundamental . . .").15
75
It is true that the federal judiciary necessarily exercises substantial powers to construe legislation, including, when appropriate, the power to prescribe substantive standards of conduct that supplement federal legislation. But this power normally is exercised with respect to disputes over which a court already has jurisdiction, and in which the existence of the asserted cause of action is established.16 Implication of a private cause of action, in contrast, involves a significant additional step. By creating a private action, a court of limited jurisdiction necessarily extends its authority to embrace a dispute Congress has not assigned it to resolve. Cf. Jacobson v. New York, N. H. & H. R. Co., 206 F.2d 153 (CA1 1953) (Magruder, C. J.), aff'd per curiam, 347 U.S. 909, 74 S.Ct. 474, 98 L.Ed. 1067 (1954); Note, Implying Civil Remedies From Federal Regulatory Statutes, 77 Harv.L.Rev. 285, 286-287 (1963).17 This runs contrary to the established principle that "[t]he jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation . . . ," American Fire & Cas. Co. v. Finn, 341 U.S. 6, 17, 71 S.Ct. 534, 542, 95 L.Ed. 702 (1951), and conflicts with the authority of Congress under Art. III to set the limits of federal jurisdiction. Lockerty v. Phillips, 319 U.S. 182, 63 S.Ct. 1019, 87 L.Ed. 1339 (1943); Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922); Sheldon v. Sill, 8 How. 441, 12 L.Ed. 1147 (1850); United States v. Nourse, 6 Pet. 470, 8 L.Ed. 467 (1832); Wechsler, The Courts and the Constitution, 65 Colum.L.Rev. 1001, 1004-1008 (1965).
76
The facts of this case illustrate how the implication of a right of action not authorized by Congress denigrates the democratic process. Title IX embodies a national commitment to the elimination of discrimination based on sex, a goal the importance of which has been recognized repeatedly by our decisions. See, e. g., Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297; Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). But because Title IX applies to most of our Nation's institutions of higher learning, it also trenches on the authority of the academic community to govern itself, an authority the free exercise of which is critical to the vitality of our society. See University of California Regents v. Bakke, 438 U.S. 265, 311, 98 S.Ct. 2733, 2759, 57 L.Ed.2d 750 (1978) (opinion of POWELL, J.); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring in result) Murphy, Academic Freedom—An Emerging Constitutional Right, 28 Law & Contemp.Prob. 447 (1963); Note, Academic Freedom and Federal Regulation of University Hiring, 92 Harv.L.Rev. 879 (1979). Arming frustrated applicants with the power to challenge in court his or her rejection inevitably will have a constraining effect on admissions programs. The burden of expensive, vexatious litigation upon institutions whose resources often are severely limited may well compel an emphasis on objectively measured academic qualifications at the expense of more flexible admissions criteria that bring richness and diversity to academic life.18 If such a significant incursion into the arena of academic polity is to be made, it is the constitutional function of the Legislative Branch, subject as it is to the checks of the political process, to make this judgment.19
77
Congress already has created a mechanism for enforcing the mandate found in Title IX against gender-based discrimination. At least in the view of Congress, the fund-termination power conferred on HEW is adequate to ensure that discrimination in federally funded colleges and universities will not be countenanced. The current position of the Government notwithstanding,20 overlapping judicial and administrative enforcement of these policies inevitably will lead to conflicts and confusion; our national goal of equal opportunity for men and women, as well as the academic community, may suffer. A federal court should resolve all doubts against this kind of self-aggrandizement, regardless of the temptation to lend its assistance to the furtherance of some remedial end deemed attractive.
III
78
In sum, I believe the need both to restrain courts that too readily have created private causes of action, and to encourage Congress to confront its obligation to resolve crucial policy questions created by the legislation it enacts, has become compelling. Because the analysis suggested by Cort has proved inadequate to meet these problems, I would start afresh. Henceforth, we should not condone the implication of any private action from a federal statute absent the most compelling evidence that Congress in fact intended such an action to exist. Where a statutory scheme expressly provides for an alternative mechanism for enforcing the rights and duties created, I would be especially reluctant ever to permit a federal court to volunteer its services for enforcement purposes. Because the Court today is enlisting the federal judiciary in just such an enterprise, I dissent.
1
Each of petitioner's two complaints names as defendant a private university—the University of Chicago and Northwestern University—and various officials of the medical school operated by that university. In addition, both complaints name the Secretary, and the Region V Director of the Office for Civil Rights, of the Department of Health, Education, and Welfare. Although all of these defendants prevailed below, and are respondents here, the federal defendants have taken a position that basically accords with the position advanced by petitioner. See Brief for Federal Respondents. Unless otherwise clear in context, all references to respondents in this opinion will refer to the private defendants named in petitioner's complaints.
2
Petitioner's complaints allege violations of various federal statutes including Title IX. Although the District Court and Court of Appeals ruled adversely on all of these theories, petitioner confined her petition for a writ of certiorari to the Title IX question. Pet. for Cert. 3. On that question, the District Court and Court of Appeals ruled favorably on respondents' motion to dismiss the complaints for failure to state a cause of action. See App. 22. Although respondents sought summary judgment simultaneously with their motion to dismiss, and submitted supporting affidavits, the courts below did not purport to rule on summary judgment or to make factual findings. Accordingly, all of the facts alleged
in petitioner's complaints must be taken as true for purposes of review.
According to her complaints, petitioner was qualified to attend both of the respondent medical schools based on both objective (i. e., grade-point average and test scores) and subjective criteria. In fact, both schools admitted some persons to the classes to which she applied despite the fact that those persons had less impressive objective qualifications than she did. Id., at 6-7, 12-13.
Both medical schools receive federal aid, id., at 15-16, and both have policies against admitting applicants who are more than 30 years old (petitioner was 39 years old at the time she applied), at least if they do not have advanced degrees. Id., at 7. Northwestern Medical School absolutely disqualifies applicants over 35. Id., at 7 n. 3. These policies, it is alleged, prevented petitioner from being asked to an interview at the medical schools, so that she was denied even the opportunity to convince the schools that her personal qualifications warranted her admission in place of persons whose objective qualifications were better than hers. Id., at 10, and n. 4, 11-12. Because the incidence of interrupted higher education is higher among women than among men, it is further claimed, the age and advanced-degree criteria operate to exclude women from consideration even though the criteria are not valid predictors of success in medical schools or in medical practice. Id., at 7-11. As such, the existence of the criteria either makes out or evidences a violation of the medical school's duty under Title IX to avoid discrimination on the basis of sex. Id., at 13. Petitioner also claimed that the schools accepted a far smaller percentage of women than their percentage in the general population and in the class of persons with bachelor's degrees. Id., at 9. But cf. 559 F.2d 1063, 1067, referring to statistics submitted by the University of Chicago in its affidavit accompanying its summary judgment motion indicating that the percentage of women admitted to classes from 1972 to 1975, 18.3%, was virtually identical to the percentage of women applicants. Of course, the dampening impact of a discriminatory rule may undermine the relevance of figures relating to actual applicants. See Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786.
Upon her rejection by both schools, petitioner sought reconsideration of the decisions by way of written and telephonic communications with admissions officials. Finding these avenues of no avail, she filed a complaint with the local office of HEW in April 1975, alleging, inter alia, violations of Title IX. App. 16. Three months later, having received only an acknowledgment of receipt of her letter from HEW, petitioner filed suit in the District Court for the Northern District of Illinois against the private defendants. After she amended her complaints to include the federal defendants and requested injunctive relief ordering them to complete their investigation, she was informed that HEW would not begin its investigation of her complaint until early 1976. 559 F.2d at 1068, and n. 3; App. 49. In June 1976, HEW informed petitioner that the local stages of its investigation had been completed but that its national headquarters planned to conduct a further "in-depth study of the issues raised" because those issues were "of first impression and national in scope." App. to Pet. for Cert., A-35. As far as the record indicates HEW has announced no further action in this case. See 559 F.2d, at 1077.
3
In relevant part, § 901, 86 Stat. 373, as amended, as set forth in 20 U.S.C. § 1681, provides:
"(a). . . No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except that:
"(1). . . in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education;
"(2). . . in regard to admissions to educational institutions, this section shall not apply (A) for one year from June 23, 1972, nor for six years after June 23, 1972, in the case of an educational institution which has begun the process of changing from being an institution which admits only students of one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Commissioner of Education or (B) for seven years from the date an educational institution begins the process of changing from being an institution which admits only students of only one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Commissioner of Education, whichever is the later;
"(3). . . this section shall not apply to an educational institution which
led by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;
"(4). . . this section shall not apply to an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine; [and]
"(5). . . in regard to admissions this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex.
* * * * *
"(b). . . Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area: Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.
"(c). . . For purposes of this chapter an educational institution means any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, except that in the case of an educational institution composed of more than one school, college, or department which are administratively separate units, such term means each such school, college, or department."
4
Section 902, 86 Stat. 374, as set forth in 20 U.S.C. § 1682, provides:
"Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report."
Section 903 of Title IX, 86 Stat. 374, as set forh in 20 U.S.C. § 1683, provides for judicial review of actions taken under § 902:
"Any department or agency action taken pursuant to section 1682 of this title shall be subject to such judicial review as may otherwise be provided by law for similar action taken by such department or agency on other grounds. In the case of action, not otherwise subject to judicial review, terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with any requirement imposed pursuant to section 1682 of this title, any person aggrieved (including any State or political subdivision thereof and any agency of either) may obtain judicial review of such action in accordance with chapter 7 of title 5, and such action shall not be deemed committed to unreviewable agency discretion within the meaning of section 701 of that title."
5
Section 601 of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d, provides:
"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
6
The Civil Rights Attorney's Fees Awards Act of 1976 amended 42 U.S.C. § 1988. That section, in relevant part, provides:
". . . In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX [of the Education Amendments of 1972], or in any civil action or proceedings, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964,. . . 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."
Respondents have argued that the amendment to § 1988 was merely intended to allow attorney's fees to the prevailing party in actions brought under the express provision in Title IX, 20 U.S.C. § 1683, quoted in n. 4, supra, authorizing alleged discriminators to obtain judicial review of Government decisions to cut off federal funds. See 559 F.2d, at 1078. The legislative history of § 1988, as amended, belies this argument. The provision was clearly intended, inter alia, to allow awards of fees on behalf of "private" victims of discrimination who have successfully brought suit in court where authorized by the enumerated statutes:
"All of these civil rights laws [referred to in § 1988] depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain." S.Rep.No.94-1011, p. 2 (1976); U.S.Code Cong. & Admin.News 1976, pp. 5908, 5910 (emphasis added):
Furthermore, the attorney's fee amendment passed in 1976 was designed to expand the availability of § 718 of the Education Amendments of 1972, 20 U.S.C. § 1617, quoted in n. 25, infra, which unequivocally provides fees to litigants "other than the United States" who secure judicial relief against certain defendants for discrimination in violation of Title VI. Hence, although the language in §§ 718 and 1988 is not parallel, it appears that both authorize attorney's fees to certain private plaintiffs where the specified statute itself authorizes the relief sought by that plaintiff and the plaintiff proves his entitlement to such relief.
7
We find nothing objectionable in this conclusion, as far as it goes. The legislative history quoted in the opinion of the Court of Appeals makes clear that the supporters of the legislation did not intend it to amend Title IX to include an express cause of action where none existed before. Instead, they clearly only meant to provide attorney's fees in the event that that statute as it had always existed implicitly created a cause of action. 559 F.2d, at 1079-1080.
On the other hand, the language added to § 1988 by the 1976 amendment, and the legislative history surrounding it, do indicate that many "members of Congress may have assumed that private suits were authorized under" Title IX, 559 F.2d, at 1079, and, more importantly, that many Members felt that private enforcement of Title IX was entirely consistent with, and even necessary to, the enforcement of Title IX and the other statutes listed in § 1988. In addition to reflecting this sentiment in the Senate Report on the 1976 amendment, see n. 6, supra, numerous legislators said as much on the floor of the two Houses:
"It is Congress['] obligation to enforce the 14th amendment by eliminating entirely such forms of discrimination, and that is why both title VI of the Civil Rights Act of 1964 and title IX of the Education Amendments of 1972 have been included [in the amendment to § 1988]. As basic provisions of the civil rights enforcement scheme that Congress has created, it is essential that private enforcement be made possible by authorizing attorneys' fees in this essential area of the law." 122 Cong.Rec. 31472 (1976) (remarks of Sen. Kennedy).
See also id., at 31471 (Sen. Scott); id., at 31482 (Sen. Allen); id., at 31832 (Sen. Hathaway); id., at 33313 (Sen. Tunney); id., at 33314 (Sen. Abourezk); id., at 35122 (Rep. Drinan); id., at 35125-35126 (Rep. Kastenmeier); id., at 35127 (Rep. Holtzman); id., at 35128 (Rep. Seiberling).
Although we cannot accord these remarks the weight of contemporary legislative history, we would be remiss if we ignored these authoritative expressions concerning the scope and purpose of Title IX and its place within "the civil rights enforcement scheme" that successive Congresses have created over the past 110 years.
8
At least since September 17, 1974, HEW has taken the position that an implied cause of action does exist under Title IX in certain circumstances. Letter from HEW Assistant General Counsel Theodore A. Miles to Dr. Bernice Sandler (Sept. 17, 1974), reproduced in App. to Pet. for Cert. A-36 to A-38. See also Memorandum for United States as Amicus Curiae in Lau v. Nichols, O.T. 1973, No. 72-6520, p. 13 n. 5, in which the Justice Department on behalf of HEW, took the position that an implied cause of action exists under Title VI; n. 31, infra. It is represented that "communication lapses between national and regional HEW offices" accounted for HEW's taking the contrary position throughout the early stages of this suit and until petitioner asked for rehearing before the Seventh Circuit. Brief for Federal Respondents 6 n. 9.
HEW's position on the interaction between the private cause of action that it recognizes and the administrative remedy provided by 20 U.S.C. § 1682 and HEW regulations was less clear until recently. In the Assistant General Counsel's 1974 letter mentioned above, the question of exhaustion of administrative remedies was raised but not answered. Since 1974, HEW has apparently never taken the position that exhaustion is required in every case. In submissions made to the Court in Terry v. Methodist Hospital, Civ. No. 76-373 (ND Ind.), however, the Department apparently took the position that it should always have the opportunity (i. e., "primary jurisdiction") to exercise its expertise through the § 1682 process in advance of judicial consideration of a private suit. Statement in Support of HEW's Motion for Reconsideration, Oct. 13, 1977, pp. 6, 10. It was apparently contemplated that the administrative results would be due some amount of deference in subsequent private litigation. Later, HEW advanced the position that the choice lay with the alleged victim of discrimination, but that if that person initiated administrative proceedings prior to suit (as petitioner did here), the only judicial remedy would be through judicial review of the agency action. See NAACP v. Wilmington Medical Center, 453 F.Supp. 280, 300 (Del.1978). Now, however, HEW, in conjunction with the Department of Justice, has rejected any strict-exhaustion, primary-jurisdiction, or election-of-remedies position in favor of a more flexible approach. In its view, a district court might choose to defer to the decision of the relevant administrative agency, if, unlike here, one has been reached in advance of trial, and it may wish to stay its hand upon request of HEW if an administrative investigation or informal negotiations are in progress and might be hampered by judicial action. See Brief for Federal Respondents 58-60, n. 36.
9
"In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. 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, 484, 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, 693, 694, 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. 412, 423, 95 S.Ct. 1733, 1740, 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 law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963); J. I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394-395, 91 S.Ct. 1999, 2003-2004, 29 L.Ed.2d 619 (1971); id., at 400, 91 S.Ct. at 2006 (Harlan, J., concurring in judgment)." 422 U.S., at 78, 95 S.Ct., at 2088.
10
In that case the Court stated:
"A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law expressed in 1 Comyn's Dig., tit, 'Action upon Statute' (F), in these words: 'So, in every case, where a statute enacts, or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.' (Per Holt, C. J., Anonymous, 6 Mod. 26, 27.) This is but an application of the maxim, Ubi jus ibi remedium. See 3 Black.Com. 51, 123; Couch v. Steel, 3 El. & Bl. 402, 411; 23 L.J.Q.B. 121, 125." 241 U.S., at 39-40, 36 S.Ct., at 484.
11
42 U.S.C. § 1973c.
12
The Court's entire explanation for inferring a private remedy was as follows:
"The Voting Rights Act does not explicitly grant or deny private parties authorization to seek a declaratory judgment that a State has failed to comply with the provisions of the Act. However, § 5 does provide that 'no person shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, § 5].' Analysis of this language in light of the major purpose of the Act indicates that appellants may seek a declaratory judgment that a new state enactment is governed by § 5." 393 U.S., at 554-555, 89 S.Ct., at 826 (footnotes omitted).
13
Not surprisingly, the right- or duty-creating language of the statute has generally been the most accurate indicator of the propriety of implication of a cause of action. With the exception of one case, in which the relevant statute reflected a special policy against judicial interference, this Court has never refused to imply a cause of action where the language of the statute explicitly conferred a right directly on a class of persons that included the plaintiff in the case. See Sullivan v. Little Hunting Park, 396 U.S. 229, 238, 90 S.Ct. 400, 405, 24 L.Ed.2d 386 (42 U.S.C. § 1982: "All citizens of the United States shall have the same RIGHT . . . AS IS ENJOYED BY WHITE CITIZENS THEREOF . . ."); alleN v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (42 U.S.C. § 1973c: "no person shall be denied the right to vote . . . "); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414-415, and n. 13, 88 S.Ct. 2186, 2189-2190, 20 L.Ed.2d 1189 (same as in
Sullivan, supra); Tunstall v. Locomotive Firemen & Enginemen, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187 (§ 2 Fourth of the Railway Labor Act: "Employees shall have the right to organize and bargain collectively through representatives . . . "); Steele v. Louisville & N. R. Co., 323 U.S. 192, 199, 65 S.Ct. 226, 230, 89 L.Ed. 173 (same); Virginian R. Co. v. Railway Employees, 300 U.S. 515, 545, 57 S.Ct. 592, 598, 81 L.Ed. 789 (§ 2 Ninth of the Railway Labor Act: "the carrier shall treat with the representative so certified" (emphasis added) ); Texas & N. O. R. Co. v. Railway Clerks, 281 U.S. 548, 567-570, 50 S.Ct. 427, 433, 74 L.Ed. 1034 (§ 2 Third of the Railway Labor Act: "Representatives . . . shall be designated by the respective parties . . . without interference, influence, or coercion exercised by either party . . . " (emphasis added)); Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 40, 36 S.Ct. 482, 484, 60 L.Ed. 874 (27 Stat. 532: "any employee of any such common carrier"). Analogously, the Court has implied causes of action in favor of the United States in cases where the statute creates a duty in favor of the public at large. See Wyandotte Transportation Co. v. United States, 389 U.S. 191, 200-202, 88 S.Ct. 379, 385-386, 19 L.Ed.2d 407 (33 U.S.C. § 409: "It shall not be lawful [to obstruct navigable waterways]"); United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (same).
The only case that deviates from this pattern is Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 which involved Title I of the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(8): "No Indian tribe . . . shall deny to any person within its jurisdiction the equal protection of its laws." Martinez, however, involved an attempt to imply a cause of action in a virtually unique situation—i. e., against an Indian tribe, protected by a strong presumption of autonomy and self-government, as well as by a special duty on the part of the Federal Government to deal fairly and openly, and by a legislative history indicative of an intent to limit severely judicial interference in tribal affairs. 436 U.S., at 55, 58-59, 63-64, 67-70, and n. 30, 98 S.Ct., at 1675, 1677, 1680, 1681-1683. In this situation, the fourth Cort factor was brought into special play. The Martinez Court determined that the strong presumption against implication of federal remedies where they might interfere with matters "traditionally relegated to state law," Cort, supra, 422 U.S., at 78, 95 S.Ct., at 2088, was equally applicable in circumstances where the federal remedies would interfere with matters traditionally relegated to the control of semisovereign Indian tribes.
Even Martinez, however, "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." 436 U.S., at 61, 98 S.Ct., at 1678; see Sullivan v.
Little Hunting Park, supra, 396 U.S., at 238, 90 S.Ct., at 405; Allen v. State Board of Elections, supra; Jones v. Alfred H. Mayer Co., supra, 392 U.S. at 414 n. 13, 88 S.Ct., at 2189. This principle, which is directly applicable in the present Title IX context, is but a manifestation of the pattern noted above because a statute declarative of a civil right will almost have to be stated in terms of the benefited class. Put somewhat differently, because the right to be free of discrimination is a "personal" one, see, e. g., Teamsters v. United States, 431 U.S. 324, 361-372, 97 S.Ct. 1843, 1867-1873, 52 L.Ed.2d 396; Franks v. Bowman Transportation Co., 424 U.S. 747, 772, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444, a statute conferring such a right will almost have to be phrased in terms of the persons benefited.
Conversely, the Court has been especially reluctant to imply causes of actions under statutes that create duties on the part of persons for the benefit of the public at large. See Piper v. Chris-Craft Industries, 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 ("unlawful" conduct); Cort v. Ash, supra ("unlawful" conduct); Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (duty of SIPC to "discharge its obligations"); National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (forbidding "action, practice, or policy inconsistent" with the Amtrak Act); Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (setting procedure for procuring congressional subpoena); T. I. M. E., Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 ("duty of every common carrier . . . to establish . . . just and reasonable rates . . . "); Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (similar duty of gas pipeline companies). The Court has deviated from this pattern on occasion. See J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (implying a cause of action under a securities provision describing "unlawful" conduct); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n. 9, 92 S.Ct. 165, 169, 30 L.Ed.2d 128 (implying a cause of action under Securities and Exchange Commission Rule 10b-5, which describes certain unlawful manipulative conduct in the securities area); Machinists v. Central Airlines, 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (implied cause of action under section of the Railway Labor Act creating a "duty" on the part of common carriers to establish boards of adjustment). At least the latter two cases can be explained historically, however. In Superintendent of Insurance, the Court explicitly acquiesced in the 25-year-old acceptance by the lower federal courts of a Rule 10b-5 cause of action. See also Ernst & Ernst v. Hochfelder, 425 U.S. 185, 196, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668; Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539. In Machinists, the Court explicitly followed the lead of various earlier cases in which it had implied causes of actions under various sections of the Railway Labor Act, albeit where the statutory provisions more explicitly
identified a class of benefited persons. See Tunstall, supra; Steele, supra; Virginian R. Co., supra; Texas & N. O. R. Co., supra.
14
In adopting Title IX in its present form, in fact, Congress passed over an alternative proposal, offered by Senator McGovern as an amendment to the Higher Education Act of 1965, that was phrased quite differently—as a simple directive to the Secretary of HEW:
"PROHIBITION AGAINST SEX DISCRIMINATION
"Sec. 1206. (a) The Secretary shall not make any grant, loan guarantee, or interest subsidy payment, nor shall the Secretary enter into any contract with any institution of higher education, or any other postsecondary institution, center, training center, or agencies representing such institutions unless the application, contract, or other arrangement for the grant, loan guarantee, interest subsidy payment, or other financial assistance contains assurances satisfactory to the Secretary that any such institution, center, or agency will not discriminate on the basis of sex in the admission of individuals to any program to which the application, contract, or other arrangement is applicable." 117 Cong.Rec. 30411 (1971).
In this connection, it is also interesting to note that as originally introduced Title VI of the Civil Rights Act of 1964, after which Title IX was explicitly patterned, see n. 16, infra, was also phrased as a directive to federal agencies engaged in the disbursement of public funds:
"TITLE VI—NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
"Sec. 601. Notwithstanding any provision to the contrary in any law of the United States providing or authorizing direct or indirect financial assistance for or in connection with any program or activity by way of grant, contract, loan, insurance, guaranty, or otherwise, no such law shall be interpreted as requiring that such financial assistance shall be furnished in circumstances under which individuals participating in or benefiting from the program or activity are discriminated against on the ground of race, color, religion, or national origin or are denied participation or benefits therein on the ground of race, color, religion, or national origin. All contracts made in connection with any such program or activity shall contain such conditions as the President may prescribe for the purpose of assuring that there shall be no discrimination in employment by any
contractor or subcontractor on the ground of race, color, religion, or national origin." S.1731, 88th Cong., 1st Sess. (1963).
After Senators Keating and Ribicoff raised objections to the bill on the ground that it did not expressly authorize a private remedy for a person against whom discrimination had been practiced, the Department of Justice submitted a revised bill which contained the language now found in § 601. See Hearings before the Senate Committee on the Judiciary on S.1731 and S.1750, 88th Cong., 1st Sess., 334-335, 349-352 (1963); infra, at 713-716.
15
See also Santa Clara Pueblo v. Martinez, 436 U.S., at 79, 98 S.Ct., at 1687, (WHITE, J., dissenting).
16
"This is identical language, specifically taken from title VI of the 1964 Civil Rights Act . . . ." 117 Cong.Rec. 30407 (1971) (Sen. Bayh—Senate sponsor). Accord, id., at 30408 ("We are only adding the 3-letter word 'sex' to existing law") (Sen. Bayh); id. at 39256 (Rep. Green—House sponsor); 118 Cong.Rec. 5803, 5807, 18437 (Sen. Bayh).
The genesis of Title IX also bears out its kinship with Title VI. In
the summer of 1970, Representative Edith Green of Oregon, who later sponsored Title IX on the floor of the House during the debates in 1971 and 1972, chaired a set of hearings on "Discrimination Against Women." Hearings before the Special Subcommittee on Education of the House Committee on Education and Labor on § 805 of H.R.16098, 91st Cong., 2d Sess (1970). Under consideration was a section of a pending bill, H.R.16098, that would simply have added the word "sex" to the list of discriminations prohibited by § 601 of Title VI. See Hearings, supra, at 1. During the course of the hearings, which were repeatedly, relied upon in both Houses during the subsequent debates on Title IX, it became clear that education institutions were the primary focus of complaints concerning sex discrimination. See, e. g., id., at 5, 237, 584. In order to conform to that focus, and in order to respond to criticism that certain federally funded programs were properly operating on a single-sex basis (for example, undergraduate colleges and homes for disturbed children), witnesses at the hearings, including representatives of the Justice Department and of the United States Commission on Civil Rights, proposed that a special provision be drawn up that was parallel to, but somewhat more limited than, Title VI. Id., at 664-666, 677-678, 690-691).
Although H.R.16098 never made it through the House, its sex discrimination provision was lifted from it, modified along the lines suggested in the 1970 hearings, and included in the House Resolution that was amended and adopted by the House as its version of what became the Education Amendments of 1972. H.R.32, 92d Cong., 1st Sess., Title X. Of note here, this House proposal was originally phrased as an amendment to Title VI that would have made § 601 of that Title into § 601(a), and would have added the gist of what is now Title IX as § 601(b). H.R. 32, supra. After further modifications not relevant here, this proposal was removed from its Title VI moorings, passed by the House, and further modified, and then passed, by the Senate in a form that was adopted by the Conference Committee. See S. Conf.Rep.No. 92-798, pp. 221-222 (1972); U.S.Code Cong. & Admin.News 1972 p. 2462.
17
The pertinent provisions of Titles IX and VI are quoted in nn. 3 and 5, supra. Although Title IX is applicable only to certain educational institutions receiving federal financial assistance, Title VI is applicable to additional institutions such as hospitals, highway departments, and housing authorities.
18
See n. 4, supra.
19
"The same [enforcement] procedure that was set up and has operated with great success under the 1964 Civil Rights Act, and the regulations thereunder[,] would be equally applicable to discrimination [prohibited by Title IX]." 117 Cong.Rec. 30408 (1971) (Sen. Bayh). Accord, 118 Cong.Rec. 5807 (1972) (Sen. Bayh); id. at 18437 (1972) (Sen. Bayh) ("[E]nforcement of [Title IX] will draw heavily on these precedents" under the Civil Rights Act of 1964).
20
Bossier Parish School Board v. Lemon, 370 F.2d 847, 852 (CA5 1967), cert. denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350. The panel included Judge Wisdom, who wrote the opinion, and then Judge (now Chief Justice) Burger sitting by designation, and then Judge (now Chief Judge) Brown. Bossier was relied on in, e. g., Southern Christian Leadership Conference, Inc. v. Connolly, 331 F.Supp. 940 (ED Mich.1971); Gautreaux v. Chicago Housing Authority, 265 F.Supp. 582 (ND Ill.1967).
21
In addition to the Fifth Circuit in Bossier, at least four other federal courts explicitly relied on Title VI as the basis for a cause of action on the part of a private victim of discrimination against the alleged discriminator. See Blackshear Residents Org. v. Housing Authority of Austin, 347 F.Supp. 1138, 1146 (WD Tex.1972); Hawthorne v. Kenbridge Recreation Assn., 341 F.Supp. 1382, 1383-1384 (ED Va.1972); Gautreaux v. Chicago Housing Authority, supra; Lemon v. Bossier Parish School Board, 240 F.Supp. 709, 713 (WD La.1965), aff'd, 370 F.2d 847 (CA5 1967).
Although 42 U.S.C. § 1983 might have provided an alternative and express cause of action in some of these cases—had it been relied upon—see generally Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 508 L.Ed.2d 60, that section was certainly not available in Kenbridge, supra, involving a private defendant. Moreover, § 1983 was clearly unavailable (and no other express cause of action such as is provided in the Administrative Procedure Act was relied upon) in four other pre-1972 cases that either expressly or impliedly found causes of action under Title VI in a somewhat different context than is involved in this case. Thus, private plaintiffs successfully sued officials of the Federal Government under Title VI, and secured orders requiring those officials either to aid recipients of federal funds in devising nondiscriminatory alternatives to presently discriminatory programs, or to cut off funds to those recipients. See Gautreaux v. Romney, 448 F.2d 731, 737-740 (CA7 1971), later appeal, Gautreaux v. Chicago
Housing Authority, 503 F.2d 930 (CA7 1974), aff'd sub nom. Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792; Shannon v. HUD, 436 F.2d 809, 820 (CA3 1970) (explicit discussion of cause of action); Southern Christian Leadership Conference, Inc. v. Connolly, 331 F.Supp. 940, 943-945 (ED Mich.1971) (explicit discussion of cause of action); Hicks v. Weaver, 302 F.Supp. 619, 622-623. (ED La. 1969).
Finally, several other pre-1972 decisions relied on Title VI as a basis for relief in favor of private litigants, although with language suggesting that § 1983 may have provided the cause of action. See Alvarado v. El Paso Independent School Dist., 445 F.2d 1011 (CA5 1971); Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179, 181 (CA6 1967), cert. denied, 390 U.S. 921; Anderson v. San Francisco Unified School Dist., 357 F.Supp. 248 (ND Cal.1972); McGhee v. Nashville Special School Dist. No. 1, 11 Race Rel.L.Rep. 698 (WD Ark.1966).
See also Gautreaux v. Chicago Housing Authority, 436 F.2d 306 (CA7 1970) (dicta), cert. denied, 402 U.S. 922, 91 S.Ct. 1378, 28 L.Ed.2d 661; Gautreaux v. Chicago Housing Authority, 296 F.Supp. 907 (ND Ill.1969) (dicta); Rolfe v. County Board of Education, 282 F.Supp. 192 (ED Tenn.1966) (dicta), aff'd, 391 F.2d 77 (CA6 1968).
22
In fact, Congress enacted Title IX against a backdrop of three recently issued implied-cause-of-action decisions of this Court involving civil rights statutes with language similar to that in Title IX. In all three, a cause of action was found. See Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386; Allen; Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189. See generally n. 13, supra.
23
In the decade preceding the enactment of Title IX, the Court decided six implied-cause-of-action cases. In all of them a cause of action was found. Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128; Sullivan v. Little Hunting Park, supra; Allen; Jones v. Alfred H. Mayer Co., supra; Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407; J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423. See generally n. 13, supra.
24
The Court of Appeals relied on National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263; and Cort v. Ash. In subsequent cases, the Court has continued to give careful attention to claims that a private remedy should be implied in statutes which omit any express remedy. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106; Piper v. Chris-Craft Industries, 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124. The Court's decidedly different approach since 1972 to cause of action by implication has not gone without scholarly notice. E. g., Pitt, Standing to Sue Under the Williams Act After Chris-Craft: A Leaky Ship on Troubled Waters, 34 Bus.Law. 117, 120, 162 (1978).
25
Section 718, 86 Stat. 369, is codified in 20 U.S.C. § 1617:
"Upon the entry of a final order by a court of the United States against a local educational agency, a State (or any agency thereof), or the United States (or any agency thereof), for failure to comply with any provision of this title or for discrimination on the basis of race, color, or national origin in violation of title VI of the Civil Rights Act of 1964, or the fourteenth amendment to the Constitution of the United States as they pertain to elementary and secondary education, the court, in its discretion, upon a finding that the proceedings were necessary to bring about compliance, may allow the prevailing party other than the United States, a reasonable attorney's fee as part of the costs."
This section was a portion of Title VII of the Education Amendments of 1972, also known as the Emergency School Aid Act. Under this Act federal funds are made available to elementary and secondary schools that are going through the process of court-ordered or voluntary desegregation. See § 702 of the Act, 20 U.S.C. § 1601.
26
See S.Conf.Rep.No.92-798, supra, p. 218 (1972); U.S.Code Cong. & Admin.News, 1972, p. 2668: "Attorney fees.—The Senate amendment, but not the House amendment, authorized the payment of attorneys fees to successful plaintiffs in suits brought for violation of . . . Title VI of the Civil Rights Act . . . . The conference substitute contains this provision." See also n. 6, supra.
27
Although there is nothing in the statute or legislative history that says as much, it may be that Congress expected 42 U.S.C. § 1983 to provide an explicit cause of action for some of the suits contemplated by § 718. But § 1983 is assuredly not available for suits against the United States, nor at the time § 718 was passed was it available for suits against "a State (or any agency thereof)," nor even perhaps for suits against a "local educational agency." See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 277-278, 97 S.Ct. 568, 571, 50 L.Ed.2d 471; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. Cf. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611. Section 718 has been interpreted liberally by the federal courts. E. g., Norwood v. Harrison, 410 F.Supp. 133 (ND Miss.1976), appeal dism'd, 563 F.2d 722 (CA5 1977).
28
"Mr. President, it is said that [§ 718] will encourage litigation in the South. . . . .
"I can only say that what [§ 718] does, in essence, is that it says a party is entitled to pursue his remedy if there is a violation [of Title VII of the Education Amendments of 1972], if there is a violation of the 1964 Civil Rights Act, if there is a violation of the 14th amendment to the Constitution of the United States. It says that, in the discretion of the court, if a mandate comes down, if a judgment is rendered, and if it was necessary to bring the action to see to it that the act was enforced, [the court] could allow the cost and a reasonable fee for time expended. That is the extent of it." 117 Cong.Rec. 11725-11726 (1971) (Sen. Cook).
In light of the language of § 718, see n. 25, supra, it is, of course, clear that Senator Cook's reference to "the 1964 Civil Rights Act" means Title VI of the Act. Accord, 117 Cong.Rec. 11338 (1971) (Sen. Dominick); id., at 11340 (Sen. Mondale); id., at 11524 (Sen. Allen); id. at 11527-11528 (Sen. Cook).
These same debates provide another important indication that Congress presumed that, wherever necessary, private causes of action must exist in order to justify the suits contemplated by § 718. Section 718 provides attorney's fees in suits seeking compliance with three separate provisions—the Constitution, Title VI, and § 718's sister provisions in Title VII of the Education Amendments of 1972. None of the last-mentioned sister provisions contains an express cause of action. Section 718 also contemplates three types of defendants in those suits—local educational agencies, States and state agencies, and the Federal Government. In exploring the meaning of the provision, the question arose as to what might occur if a private litigant attempted to sue the Federal Government to force compliance with Title VII of the Education Amendments of 1972. The following colloquy took place:
"Mr. COOK. [I]f the Federal Government is defendant, and if the Federal Government is found guilty of violation of this act [Title VII of the Education Amendments of 1972], and it is in fact discriminating, then it is conceivable that the attorney's fees and the costs could go against the Federal Government.
"Mr. PELL. But can an individual sue the Federal Government?
"Mr. COOK. Under this title?
"Mr. PELL. Yes.
"Mr. COOK. Oh yes."
29
The question of busing to achieve racial balance caused considerable debate during consideration of the Education Amendments of 1972. During those debates, it was proposed that the jurisdiction of the federal courts be limited to prevent them from ordering such busing. In defending federal jurisdiction in this area, the opponents of the proposal described the courts as an important, even the most important, reliance in the enforcement of Title VI. For example, Senator Javits stated: "We cannot simply strike down these [judicial] enforcement powers without effectively striking down title VI of the Civil Rights Act of 1964." 118 Cong.Rec. 5483 (1972). See also id. at 7558-7559; id. at 7561 (Rep. Stokes) ("The busing furor is a symptom, like pain, of the effort which has been made to carry out the mandate of Brown against Board of Education and Title VI of the Civil Rights Act. Busing has been used successfully in many communities. The courts have required it because it works").
30
Senator Bayh, for example, explained that the time limits provided in Title IX for undergraduate institutions that chose to become coeducational after previously being single sex, § 901(a)(2)(A), 20 U.S.C. § 1681(a)(2)(A), are "consistent with the type of timetable that has been set in the past by court decisions under Title VI of the 1964 Civil Rights Act in other areas of discrimination." 117 Cong.Rec. 30409 (1971) (emphasis added). See also id., at 30404 (Sen. Bayh); id., at 30407 (Sen. Javits).
31
In 1965, the Justice Department intervened on behalf of the private litigants in the Bossier litigation, which resulted in the first two judicial opinions implying a cause of action under Title VI. See nn. 20 and 21, supra. As far as those opinions indicate, the Government fully supported the private plaintiffs' position. See Bossier Parish School Board v. Lemon, 370 F.2d 847 (CA5 1967); Lemon v. Bossier Parish School Board, 240 F.Supp. 709 (WD La. 1965).
32
See nn. 8, 21, supra; n. 39, infra.
33
Since 1972, the Court has twice reached the merits in suits brought by private litigants to enforce Title VI. In both cases it determined that Title VI justified at least some of the relief sought by the private litigants. Lau v. Nichols, 414 U.S. 563, 566-569, 94 S.Ct. 786, 788-789, 39 L.Ed.2d 1; Hills v. Gautreaux, 425 U.S., at 286, 96 S.Ct., at 1541. Although in neither case did the Court in terms address the question of whether Title VI provides a cause of action, in both the issue had been explicitly raised by the parties at one level of the litigation or another. These cases are accordingly consistent, at least, with the widely accepted assumption that Title VI creates a private cause of action.
In Lau, the respondents (the defendants below) argued "that the Fourteenth Amendment and the Civil Rights Act do not give a party a federal cause of action every time a School District fails to resolve a problem—not of its making—presented to it by a student." Brief in Opposition, O.T. 1973, No. 72-6520, p. 7. On the other hand, the Federal Government and at least one other amicus curiae explicitly took the opposite position—that Title VI was itself sufficient to create a cause of action. Memorandum for United States as Amicus Curiae, O.T. 1973, No. 72-6520, p. 13, and n. 5, citing Bossier Parish School Board v. Lemon, supra. Brief for Puerto Rican Legal Defense & Education Fund, Inc., as Amicus Curiae, O.T. 1973, No. 72-6520, p. 2. But cf. Brief for National Education Assn. et al as Amici Curiae, O.T. 1973, No. 72-6520, p. 5 (42 U.S.C. § 1983 provided the cause of action for the relevant breach of Title VI).
In the lengthy litigation culminating in the Court's decision in Hills v. Gautreaux, supra, a private litigant who claimed that public housing in Chicago was being located in a racially discriminatory fashion, had filed two separate complaints relying in part on Title VI—one against the Chicago Housing Authority (CHA) and one against the Department of Housing and Urban Development (HUD), which was the agency providing federal funds to CHA. Although the two cases proceeded separately for years, they were consolidated before they reached this Court. In the early stages of the CHA suit, the District Court, over CHA's objection, explicitly determined that there is a cause of action under Title VI even where § 1983 is not relied upon. Gautreaux v. Chicago Housing Authority, 265 F.Supp. 582 (ND Ill.1967). In an unreported opinion, that court apparently also found that the Title VI complaint against HUD stated a cause of action. See Gautreaux v. Romney, 448 F.2d, at 737-740 (on appeal from the unreported decision; cause of action issue not raised). The complaint in that suit, which is reprinted in the appendix filed by the parties in Hills v. Gautreaux, derives the cause-of-action directly from Title VI. App., O.T. 1975, No. 74-1047, p. 35. Section 1983 was not available in this suit against federal officials, and the Administrative Procedure Act was nowhere mentioned. Although by the time the consolidated cases reached this Court the primary contested issue was the propriety of the relief ordered by the District Court against HUD, the Court did note that the agency had "been judicially found to have violated the Fifth Amendment and the Civil Rights Act of 1964 . . . ." 425 U.S., at 286, 96 S.Ct., at 1541. The Government did not raise the cause-of-action question.
34
"In sum, we conclude that Congress clearly understood that it was conferring power upon the courts to [grant relief] . . . under the statute." See Dalia v. United States, 441 U.S. 238, 254, 99 S.Ct. 1682, 1692, 60 L.Ed.2d 177. Indeed, the evidence of legislative intent is so compelling that we have no hesitation in concluding that even the test now espoused by Mr. Justice POWELL, post, at 749, is satisfied in this case.
35
See Allen v. State Board of Elections, 393 U.S., at 556, 89 S.Ct., at 826; Wyandotte Transportation Co. v. United States, 389 U.S., at 202, 88 S.Ct., at 386; J. I. Case Co. v. Borak, 377 U.S., at 432, 84 S.Ct., at 1559; Machinists v. Central Airlines, 372 U.S., at 690, 83 S.Ct., at 961.
36
With respect to Title VI, for example, the comments of Senator Pastore:
"[T]he purpose of title VI is to make sure that funds of the United States are not used to support racial discrimination," 110 Cong.Rec. 7062 (1964),
should be compared with the comments of Representative Lindsay:
"Everything in this proposed legislation has to do with providing a body of law which will surround and protect the individual from some power complex. This bill is designed for the protection of individuals. When an individual is wronged he can invoke the protection to himself, but if he is unable to do so because of economic distress or because of fear then the Federal Government is authorized to invoke that individual protection for that individual . . .." Id., at 1540.
With respect to Title IX, the comments of Representative Mink:
"Any college or university which has [a] . . . policy which discriminates against women applicants . . . is free to do so under [Title IX] but such institutions should not be asking the taxpayers of this country to pay for this kind of discrimination. Millions of women pay taxes into the Federal treasury and we collectively resent that these funds should be used for the support of institutions to which we are denied equal access," 117 Cong.Rec. 39252 (1971),
should be compared with the comments of Senator Bayh:
"[Title IX] is a strong and comprehensive measure which I believe is needed if we are to provide women with solid legal protection as they seek education and training for later careers . . . ." 118 Cong.Rec. 5806-5807 (1972).
37
See § 902 of Title IX, 20 U.S.C. § 1682. There are some occasions, however, when even this purpose cannot be served unless a private remedy is available. For a recipient of a one-shot grant of federal money, for example, the temptation to use the fruits of that money in furtherance of a discriminatory policy adopted several years later would not be dampened by any powers given the federal donor agency under Title IX.
38
Congress itself has noted the severity of the fund-cutoff remedy and has described it as a last resort, all else—including "lawsuits"—failing. See, e. g., 110 Cong.Rec. 7067 (1964) (Sen. Ribicoff):
"Personally, I think it would be a rare case when funds would actually be cut off. In most cases alternative remedies, principally lawsuits to end discrimination, would be the preferable and more effective remedy. If a Negro child were kept out of a school receiving Federal funds, I think it would be better to get the Negro child into school than to cut off funds and impair the education of the white children."
See also id., at 5090, 6544 (Sen. Humphrey); id., at 7103 (Sen. Javits).
39
This insight is not of recent vintage. In Cumming v. Richmond County Board of Education, 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262, several black taxpayers sued a school board that provided free high school education to white children, but not to black children. The remedy they sought under the separate-but-equal doctrine then in force under the Fourteenth Amendment, see Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 was closure of the white high school rather than appropriation of funds for a black high school. Mr. Justice Harlan for the Court rejected this claim, noting that "the result would only be to take from white children . . . without giving to colored children . . . ." 175 U.S., at 544, 20 S.Ct., at 200. He suggested that the result might be different if "the plaintiffs had sought to compel the Board of Education . . . to establish and maintain a high school for colored children . . . ." Id., at 545, 20 S.Ct., at 201.
40
In the context of noting the kinship of Title VI and Title IX, Senator Bayh lauded the enforcement procedures available under the former for their "great success" and "their effectiveness and flexibility." 117 Cong.Rec. 30408 (1971); 118 Cong.Rec. 5807 (1972). As noted earlier, private suits had become an important and especially flexible part of those procedures by 1972, and were almost assuredly known to Congress. See also 117 Cong.Rec. 11339 (1971) (Sen. Mondale) (noting that attorney's fees for successful Title VI litigants under § 718 were necessary to forestall a "law enforcement crisis in the field of civil rights").
A further indication of the consistency of Title IX's purposes and the existence of a private remedy is the fact that, until the District Court and Court of Appeals decisions in this case, the federal courts had consistently recognized such a remedy under that Title and under Title VI before it. E. g., Uzzell v. Friday, 547 F.2d 801, aff'd en banc, 558 F.2d 727 (CA4 1977), vacated on other grounds, 438 U.S. 912, 98 S.Ct. 3139, 57 L.Ed.2d 1158; Gilliam v. Omaha, 524 F.2d 1013 (CA8 1975); Garrett v. Hamtramck, 503 F.2d 1236 (CA6 1974); Serna v. Portales Municipal Schools, 499 F.2d 1147 (CA10 1974); Otero v. New York City Housing Authority, 484 F.2d 1122, 1138 (CA2 1973); Piascik v. Cleveland Museum of Art, 426 F.Supp. 779 (ND Ohio 1976); cases cited in n. 21, supra. This Court has frequently accepted a history of federal-court recognition of a cause of action as indicative of the propriety of its implication. E. g., Blue Chip Stamps v. Manor Drug Stores, 421 U.S., at 730, 95 S.Ct., at 1922-1923; Machinists v. Central Airlines, supra, 372 U.S., at 690, 83 S.Ct. at 961; Texas & Pacific R. Co. v. Rigsby, 241 U.S., at 39, 36 S.Ct., at 484.
41
It has been suggested that, at least in the absence of an exhaustion requirement, private litigation will interfere with HEW's enforcement procedures under § 902 of Title IX. The simple answer to this suggestion is that the Government itself perceives no such interference under the circumstances of this case, and argues that if the possibility of interference arises in another case, appropriate action can be taken by the relevant court at that time. See n. 8, supra.
In addition, Congress itself was apparently not worried about such interference when it passed Title IX. As discussed supra, at 699-700, the statute of which Title IX is a part also contains a provision, § 718, allow-
ing attorney's fees under Title VI. No matter how narrowly that provision is read, it certainly envisions private enforcement suits apart from the administrative procedures that Title VI, like Title IX, expressly creates. If such suits would not hamper administrative enforcement of Title VI against local and state school officials, it is hard to see how they would do so with respect to other recipients of federal funds.
True, this Court has sometimes refused to imply private rights of action where administrative or like remedies are expressly available. E. g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646; T. I. M. E., Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952. But see Cort v. Ash, 422 U.S., at 79, 95 S.Ct., at 2088; Superintendent of Insurance v. Banker's Life & Cas. Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128; Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407; J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423. But it has never withheld a private remedy where the statute explicitly confers a benefit on a class of persons and where it does not assure those persons the ability to activate and participate in the administrative process contemplated by the statute. See Rosado v. Wyman, 397 U.S. 397, 406 n. 8, 90 S.Ct. 1207, 1214, 25 L.Ed.2d 442; cf. Cort v. Ash, supra, 422 U.S., at 74-75, 95 S.Ct., at 2086; Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190. As the Government itself points out in this case, Title IX not only does not provide such a mechanism, but the complaint procedure adopted by HEW does not allow the complainant to participate in the investigation or subsequent enforcement proceedings. Moreover, even if those proceedings result in a finding of a violation, a resulting voluntary compliance agreement need not include relief for the complainant. Brief for Federal Respondents 59 n. 36. Furthermore, the agency may simply decide not to investigate—a decision that often will be based on a lack of enforcement resources, rather than on any conclusion on the merits of the complaint. See n. 42, infra. In that case, if no private remedy exists, the complainant is relegated to a suit under the Administrative Procedure Act to compel the agency to investigate and cut off funds. E. g., Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973). But surely this alternative is far more disruptive of HEW's efforts efficiently to allocate its enforcement resources under Title IX than a private suit against the recipient of federal aid could ever be.
For these same reasons, we are not persuaded that individual suits are inappropriate in advance of exhaustion of administrative remedies. Because the individual complainants cannot assure themselves that the administrative process will reach a decision on their complaints within a reasonable time, it makes little sense to require exhaustion. See 3 K. Davis, Administrative Law Treatise § 20.01, p. 57 (1958).
42
In its submissions to this Court, as well as in other public statements, HEW has candidly admitted that it does not have the resources necessary to enforce Title IX in a substantial number of circumstances:
"As a practical matter, HEW cannot hope to police all federally funded education programs, and even if administrative enforcement were always feasible, it often might not redress individual injuries. An implied private right of action is necessary to ensure that the fundamental purpose of Title IX, the elimination of sex discrimination in federally funded education programs, is achieved." Reply Brief for Federal Respondents 6.
See also 40 Fed.Reg. 24148-24159 (1975).
In the notice of proposed rulemaking just cited, in fact, HEW proposed to employ its enforcement resources under both Title VI and Title IX solely to remedy "systemic discrimination rather than [to use] a reactive or complaint-oriented approach geared toward securing individual relief for persons claiming discrimination." Id., at 24148. The agency explained this approach as necessary to allow it to manage its workload—a workload primarily made up of "complaints involving sex discrimination in higher education academic employment." Ibid. Adverse commentary on this proposal led HEW to abandon it, although the result has been a steadily increasing backlog of unprocessed complaints. Nonetheless, its explanation of the proposal supports the conclusion that HEW's enforcement capabilities under Title IX are especially limited in precisely those areas where private suits can be most effective.
43
E. g., 117 Cong.Rec. 39254 (1971) (Rep. Wyman); 110 Cong.Rec. 5253 (1964) (Sen. Talmadge).
44
Furthermore, unless respondents are arguing that Title IX (and, by implication, Title VI) is itself unconstitutional, this argument is entirely misconceived. Whatever disruption of the academic community may accompany an occasional individual suit seeking admission is dwarfed by the relief expressly contemplated by the statute—a cutoff of all federal funds. For this reason, in fact, the opponents of Title VI argued that the provision should be rejected in favor of reliance on judicial remedies available under the Fourteenth Amendment. For example, in reply to Senator Humphrey's advocacy of the administrative remedy, Senator Talmadge asked:
"Why does not the Senator rely on the court's authority [under the Fourteenth Amendment], instead of giving arbitrary, capricious, wholesale punitive power to some Federal bureaucrat to starve entire cities, towns, States, and regions at one fell swoop?" 110 Cong.Rec. 5254 (1964).
45
See 42 U.S.C. § 2000a-3 (Title II); 42 U.S.C. §§ 2000e-5(f)(1), (3) (Title VII).
46
See 110 Cong.Rec. 1519 (1964) (Rep. Celler); id., at 2467 (Rep. Gill); id., at 6562 (Sen. Kuchel); id., at 7063 (Sen. Pastore); id., at 7065 (Sen. Keating); id., at 8345 (Sen. Proxmire).
47
As discussed earlier, that type of procedure is far more severe than individual suits, and was already the subject of express administrative provisions in Title VI.
48
Consider the following comment by Senator Humphrey:
"The purpose of Title VI is to make sure that funds of the United States are not used to support racial discrimination. In many instances the practices of segregation or discrimination, which Title VI seeks to end, are unconstitutional. This is clearly so wherever Federal funds go to a State agency which engages in racial discrimination. It may also be so where Federal funds go to support private, segregated institutions, under the decision in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (CA4 1963), [cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964)]. In all cases, such discrimination is contrary to national policy, and to the moral sense of the Nation. Thus, title VI is simply designed to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation." 110 Cong.Rec. 6544 (1964). See also ibid. (Sen. Humphrey); id., at 7062 (Sen. Pastore); id., at 7065 (Sen. Ribicoff); id., at 12677 (Sen. Allott); id., at 12719 (Sen. Javits).
Although it has been suggested that the state-action doctrine in Simkins is overbroad, e. g. Greco v. Orange Memorial Hospital Corp., 513 F.2d 873 (CA5 1975), there is no denying that the Title VI Congress assumed and approved the availability of private suits against many private recipients of federal funds.
49
Various statements made during the debates suggest an assumption that Title VI would be judicially enforceable apart from the administrative procedures contained in § 602. In addition to Senator Ribicoff's reference to "lawsuits" as the principal and preferable "alternative" to cutting off funds under the administrative remedy, n. 38, supra, see for example, Senator Humphrey's statement:
"Title VI would have a substantial and eminently desirable impact on programs of assistance to education. Title VI would require elimination of racial discrimination and segregation in all 'impacted area' schools receiving Federal grants under Public Laws 815 and 874. Racial segregation at such schools is now prohibited by the Constitution. The Commissioner of Education would be warranted in relying on any existing plans of desegregation which appeared adequate and effective, and on litigation by private parties or by the Attorney General under title IV [of the 1964 Civil Rights Act], as the primary means of securing compliance with this nondiscriminatory requirement. It is not expected that funds would be cut off so long as reasonable steps were being taken in good faith to end unconstitutional segregation." 110 Cong.Rec. 6545 (1964) (emphasis added).
Also interesting is a debate on the Senate floor on March 13, 1964. Id., at 5253-5256. Senator Talmadge began the relevant discussion by characterizing the "broad" powers delegated federal agencies under
§ 602 as "barbarous." Id., at 5253. When Senator Humphrey responded that the "right" against discrimination embodied in § 601 justified those broad enforcement powers, the following exchange ensued:
"Mr. TALMADGE. That right is enforceable in every court of the land, and the Senator from Minnesota knows it.
"Mr. HUMPHREY. That is correct. The existing law of the land is stated in section 601. Sections 602 and 603 . . . do not represent an extension of that law. . . . They represent a procedural limitation on the power of an affected agency to enforce existing powers." Id., at 5254 (emphasis added).
At this point, the debate began to focus on an argument repeatedly made by the opponents of Title VI until it was subsequently amended. See also id., at 13435-13436 (Sen. Long). Although recipients of federal aid in the form of "a contract of insurance or guaranty" were exempted from the administrative enforcement procedure in § 602, the opponents felt that the exemption should be included in the statement of rights in § 601 as well. Otherwise, they argued, the exemption would not be effective—apparently because of the possibility, mentioned by Senator Talmadge and quoted above, of judicial enforcement outside of § 602. In the midst of discussing this point, Senator Stennis asked if "section 602 is a method by which section 601 will be enforced," to which Senator Humphrey replied: "Yes, it is the method for those governmental agencies and activities covered by Title VI." 110 Cong.Rec. 5255 (1964) (emphasis added).
At this point, Senator Case entered the fray:
" . . . I wish to make clear that the words and provisions of section 601 and the substantive rights established and stated in that section are not limited by the limiting words of section 602. Section 602 says that when a department or agency of the Government—and I think the Senator was correct, earlier, when he made this careful distinction—in dealing with the kinds of programs which are referred to in section 602, attempts to prevent the discrimination, or what-not, the department must follow this procedure. I agree. My only point is that I do not want my embracement of this bill to be construed as indicating that I believe that the substantive rights of an individual, as they may exist under the Constitution, or as they may be stated in section 601, are limited in any degree whatsoever." Ibid.
In his effort to mollify the opponents of Title VI on the issue of federal guarantees, Senator Humphrey at first appeared to disagree with Senator
Case's interpretation. However, when the latter reiterated the point that § 602 "is not intended to limit the rights of individuals, if they have any way of enforcing their rights apart from the provisions of the bill, by way of suit or any other procedure," Senator Humphrey agreed—and apparently went further:
"I thoroughly agree with the Senator insofar as an individual is concerned. As a citizen of the United States, he has his full constitutional rights. He has his right to go to court and institute suit and whatever may be provided in the law and in the Constitution. There would be no limitation on the individual. The limitation would be on the qualification of Federal agencies." Id., at 5256 (emphasis added).
Senator Keating's conclusion of this debate is discussed in n. 52, infra.
Two points need be made about this exchange. First, the controversy over how to treat federal guarantees was later resolved by removing the reference to those guarantees from § 602 and adding a new provision, § 605, which simply exempted them from the effect of the title. This solved the complaints of the Title's opponents, without diluting the declaration of rights in § 601. Second, although this debate may evidence some confusion over the law existing prior to the enactment of Title VI insofar as that law would not reach many of the private discriminators affected by § 601, but cf. n. 48, supra, it demonstrates a congressional assumption that whatever rights existed under the law were automatically enforceable by private litigants. The administrative provisions in §§ 602 and 603 were simply means by which additional—and far more controversial—procedures were established and then limited.
50
"Parenthetically, while we favored the inclusion of the right to sue on the part of the agency, the State, or the facility which was deprived of Federal funds, we also favored the inclusion of a provision granting the right to sue to the person suffering from discrimination. This was not included in the bill." 110 Cong.Rec. 7065 (1964).
Although not cited by respondents, two other passages in the legislative history are of similar effect. See id., at 5266 (Sen. Keating); Hearings before the Senate Committee on the Judiciary on S.1731 and S.1750, 88th Cong., 1st Sess., 335 (1963) (Sen. Keating).
In August 1963, the Justice Department agreed to redraft its original proposal for Title VI in light of congressional criticism. At that time, Senator Keating, along with Senator Ribicoff, submitted the following
suggested provision to the Department for its consideration in the redrafting process.
"(a) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by the nondiscrimination requirement of section 601 of the Civil Rights Act of 1963, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted (1) by the person aggrieved, or (2) by the Attorney General for or in the name of the United States. In any proceeding hereunder, the United States shall be liable for costs the same as a private person.
"(b) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section and shall exercise the same without regard to whether the party aggrieved shall have exhausted any administrative or other remedy that may be provided by law." 109 Cong.Rec. 15375 (1963) (emphasis added).
Senator Keating explained that this section would have allowed private suits to terminate funding or to require "specific performance of the nondiscrimination requirement" in Title VI. Id., at 15376. See generally Hearings, supra, at 349-352.
51
The Keating suggestion was made in the context of broader complaints that the original version of Title VI, which is quoted in n. 14, supra, was too weak and too dependent on the fund-cutoff remedy. See, e. g., 109 Cong.Rec. 14833-14835 (1963) (Sens. Ribicoff and Keating). That version, it should be noted, was not explicitly declarative of any individual right against discrimination. Instead, it merely allowed federal agencies to withhold funds from discriminatory recipients.
The result of the administration's reconsideration of Title VI was a compromise. Although its redraft, which in major part was enacted as Title VI, did not include an express private cause of action either to cut off funds or to end discrimination, it did rephrase § 601 as a declaration
of an absolute individual right not to have federal funds spent in aid of discrimination.
There is a plausible reason for this compromise. In its final form, § 601 was far more conducive to implication of a private remedy against a discriminatory recipient than was the original language, but at the same time was arguably less conducive to implication of a private remedy against the Government (as well as the recipient) to compel the cutoff of funds. Although willing to extend private rights against discriminatory recipients, the Government may not have been anxious to encourage suits against itself.
In this context, it is also understandable that some Members of Congress, as noted earlier, evidenced dissatisfaction at the unavailability under Title VI of private suits to cut off funds. See remarks cited in n. 46, supra. Even the Keating remark relied on by respondents, n. 50, supra, can be understood in this light.
52
As noted earlier, some of Senator Keating's colleagues came to the view that the absence of an express private remedy would not foreclose the implication of one under the right-declarative language in the administration's final proposal. See n. 49, supra. Even Senator Keating, after listening to this view expressed by Senator Case in the March 13, 1964, debate quoted ibid., appeared to agree—although he still wished the remedy were express:
"I wish to associate myself with the very careful analysis made by the Senator from New Jersey and say that I agree with him thoroughly. If the bill does not mean what he has indicated it means, it ought to be made to mean so. I think the limitation of powers set forth in title VI is too extensive. Under section 603, a State, or political subdivision of a State, or an agency of either, which is denied funds because discrimination is taking place, is given the right of action in court. But there is no correlative right in the citizen. If funds are granted to discriminatory projects by public officials, the citizen who is denied the benefits of the project has no correlative right to bring a suit in court, and he should have." 110 Cong.Rec. 5256 (1964) (emphasis added).
1
Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975); Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975); National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974).
2
110 Cong.Rec. 6544 (1964) (Sen. Humphrey). Senator Humphrey noted President Kennedy's message of June 19, 1963:
" 'Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.' " Id., at 6543.
3
See, e. g., Exec. Order No. 8802, 3 CFR 957 (1938-1943 Comp.) (Pres. Roosevelt); Exec. Order No. 10210, 3 CFR 390 (1949-1953 Comp.) (Pres. Truman); Exec. Order No. 10479, 3 CFR 961 (1949-1953 Comp.) (Pres. Eisenhower); Exec. Order No. 10925, 3 CFR 448 (1959-1963 Comp.) (Pres. Kennedy).
4
110 Cong.Rec. 6546 (1964) (Sen. Humphrey).
5
Thus, Senator Humphrey noted:
"Much has been done by the executive branch to eliminate racial discrimination from federally assisted programs. President Kennedy, by Executive order, prohibited such discrimination in federally assisted housing, and in employment on federally assisted construction. Individual agencies have taken effective action for the programs they administer." Id., at 6544.
Nonetheless,
"President after President has announced that national policy is to end discrimination in Federal programs and Federal assistance. But, regrettably, there has been open violation of these policies." Id., at 6543.
6
Id., at 6544. Enactment of Title VI would remove "any conceivable doubts" as to the authority of agencies to eliminate discrimination in the programs they funded and "give express legislative support to the agency's actions . . . . [S]ome federal agencies appear to have been reluctant to act in this area. Title VI will require them to act." Ibid. Senator Humphrey further explained that "[i]n connection with various Federal programs of aid to higher education, language institutes, research grants to colleges, and the like, Title VI would . . . authorize requirements of nondiscrimination. In a number of programs, such action has already been taken." Id., at 6546.
7
Ibid. Senator Humphrey noted that "existing statutory authority is, however, not surrounded by the procedural safeguards which Title VI provides." Ibid.
8
See also id., at 6544:
"Moreover, the purpose of Title VI is not to cut off funds, but to end racial discrimination. . . . In general, cutoff of funds would not be consistent with the objectives of the Federal assistance statute if there are available other effective means of ending discrimination. And section 602, by authorizing the agency to achieve compliance 'by any other means authorized by law' encourages agencies to find ways to end racial discrimination without refusing or terminating assistance."
9
See id., at 7066 (Sen. Ribicoff):
"[An] agency could, for example, ask the Attorney General to initiate a lawsuit under title IV, if the recipient were a school district or public college; or the agency could use any of the remedies available to it by virtue of its own 'rule, regulation, or order of general applicability.' For example, the most effective way for an agency to proceed would often be to adopt a rule that made the nondiscrimination requirement part of a contractual obligation on the part of the recipient . . . or . . . the agency would have authority to sue to enforce compliance with its own regulations."
The mention of "lawsuits," id., at 7067, by Senator Ribicoff, on which the Court relies, see ante, at 705 n. 38; 712 n. 49, was in reference to the foregoing. As the Senator pointed out: "All of these remedies have the obvious advantage of seeking to end the discrimination, rather than to end the assistance." 110 Cong.Rec. 7066 (1964).
By regulation, see 45 CFR §§ 80.8(a), 86.71 (1978), HEW has provided that "other means" in § 602 include referral to the Department of Justice for enforcement of rights of the United States under any statute or contractual undertaking.
10
For instance, the Court quotes Senator Humphrey's statement that "litigation by private parties [would be among] the primary means of securing compliance" with § 601, ante, at 712 n. 49. But reference to the Senator's entire remarks shows he was contemplating suits under § 1983. The "[r]acial segregation . . . prohibited by the Constitution" and "litigation . . . under Title IV of the 1964 Civil Rights Act," 110 Cong.Rec. 6545 (1964), were limited to discrimination under color of law and did not reach discrimination by private parties. Congress was well aware of § 1983 suits against public agencies brought to enforce this prohibition. See id., at 5247-5256.
11
The Court, ante, at 711-712, n. 48, appears to rely on a statement by Senator Humphrey citing Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (CA4 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), as support for the proposition that Title VI created a new private remedy. But Simkins was brought under 42 U.S.C. § 1983. See University of California Regents v. Bakke, 438 U.S. 265, 383-385, 98 S.Ct. 2733, 2796-2797, 57 L.Ed.2d 750 (1978) (separate opinion of WHITE, J.). In any event, although there is no doubt that in enacting Title VI Congress intended to proscribe private discrimination, the excerpt quoted by the Court does not suggest that Congress contemplated a private individual remedy against all discrimination thus prohibited. To the contrary, Senator Humphrey recognized the uncertain status of Simkins as authoritative exposition of § 1983 and the Fourteenth Amendment.
12
Indeed, 42 U.S.C. § 2000c-8, enacted as part of the 1964 Act, expressly preserves pre-existing private remedies against discrimination "in public education," which would include the remedies provided by § 1983.
Although concluding that Title IX and Title VI confer private causes of action, the Court refrains from addressing the permissible remedies available under such a cause of action. Thus, the Court focuses on suits requesting, as injunctive relief, that individuals allegedly discriminated against be admitted to federally assisted educational programs, but does not explicitly foreclose the possibility of a suit against either a recipient institution or a federal funding agency to require termination of funding of the allegedly discriminatory program. In at least two cases apparently brought directly under § 601, both of which are approvingly cited by the Court, the recipient of funds was enjoined from continuing the federally assisted project, and HUD was enjoined to terminate funding. Blackshear Residents Org. v. Housing Authority of Austin, 347 F.Supp. 1138, 1150 (WD Tex.1972); Hicks v. Weaver, 302 F.Supp. 619, 628 (ED La.1969). Such intervention by federal courts at the behest of private parties cannot be reconciled with the numerous procedural safeguards provided in § 602, see University of California Regents v. Bakke, supra, 438 U.S. at 381-383, 98 S.Ct. at 2795-2796 (separate opinion of WHITE, J.). The § 1983 cause of action does not encompass the remedy of funding termination, for it permits only such legal or equitable relief as is appropriate to "redress" the "deprivation" of the right. Cf. Cumming v. Richmond County Board of Ed., 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262 (1899).
13
In addition to citations in my separate opinion in University of California Regents v. Bakke, 438 U.S., at 385-386, and n. 4, 98 S.Ct., at 2797-2798, see, e. g., 110 Cong.Rec. 5256 (1964):
"Mr. CASE. [Section 602] is not intended to limit the rights of individuals, if they have any way of enforcing their rights apart from the provisions of the bill, by way of suit or any other procedure. The provision of the bill is not intended to cut down any rights that exist."
"Mr. HUMPRHEY. I thoroughly agree with the Senator insofar as an individual is concerned. . . ."
The remainder of this colloquy is excerpted in the Court's opinion, ante, at 714 n. 49.
14
See § 718 of the Education Amendments of 1972, 20 U.S.C. § 1617; infra, at 727.
15
See 370 F.2d, at 852 ("In the absence of a procedure through which the individuals protected by section 601's prohibition may assert their rights under it, violations of the law are cognizable by the courts").
16
Prior to enactment of Title IX, two District Courts directly or indirectly relied on Bossier in holding that aggrieved individuals could sue to enforce § 601, but in both of these cases the defendant was acting under color of state law. Gautreaux v. Chicago Housing Authority, 265 F.Supp. 582, 583-584 (ND Ill.1967), followed what it believed to be the holding of Bossier that individuals had "standing" to enforce § 601 even though the Seventh Circuit in Green Street Assn. v. Daley, 373 F.2d 1, 8-9, cert. denied, 387 U.S. 932, 87 S.Ct. 2054, 18 L.Ed.2d 995 (1967), had previously declined to express its agreement with this aspect of Bossier. Blackshear Residents Org. v. Housing Authority of Austin, supra, 347 F.Supp., at 1140, in turn relied on Gautreaux. Subsequent decisions in the Gautreaux v. Chicago Housing Authority litigation expressly noted that plaintiffs sought relief under § 1983 in every count of their complaint, see 296 F.Supp. 907, 908 (ND Ill.1969), and 436 F.2d 306, 307 (CA7 1970) (aff'g 296 F.Supp. 907), cert. denied, 402 U.S. 922, 91 S.Ct. 1378, 28 L.Ed.2d 661 (1971). The one case cited by the Court that was a suit against a private organization did not mention the cause of action issued. Hawthorne v. Kenbridge Recreation Assn., Inc., 341 F.Supp. 1382 (ED Va.1972).
17
In addition to Bossier, the cases discussed in n. 16, supra, and cases explicitly holding that the cause of action was provided by § 1983, see the Court's opinion, ante, at 696-697, n. 21, the Court relies on cases involving suits against federal officials. Contrary to the Court's assertion, see ibid., none of these cases held that there is a direct cause of action to enforce § 601. In Shannon v. Department of Housing and Urban Development, 436 F.2d 809, 818-819, 820 (CA3 1970), the court concluded that allegations of failure to act with respect to specific instances of discrimination were reviewable under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Similarly, Southern Christian Leadership Conference, Inc. v. Connolly, 331 F.Supp. 940, 943 (ED Mich.1971), cited ante, at 696-697 nn. 20, 21, explicitly held that standing was based on § 10 of the Administrative Procedure Act, 5 U.S.C. § 702, and cited Bossier only in a discussion of exhaustion of administrative remedies. Neither Gautreaux v. Romney, 448 F.2d 731 (CA7 1971), later appeal, Gautreaux v. Chicago Housing Authority, 503 F.2d 930 (CA7 1974), aff'd, sub nom. Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976), nor Hicks v. Weaver, 302 F.Supp. 619 (ED La.1969), contains any discussion of the cause-of-action issue or even suggests that the question of the appropriate standard for reviewing such federal funding decisions had been raised.
18
There is no basis for the Court's suggestion that at the time § 718 was enacted § 1983 was not available for suits against state or local educational agencies, see ante, at 700 n. 27. As described last Term in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 663 nn. 5, 6, 98 S.Ct. 2018, 2021-2022 nn. 5, 6, 56 L.Ed.2d 611 (1978), we had never indicated that suits such as Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), or Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), might not be appropriate despite the holding in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that local governments were not "persons" within the meaning of § 1983. It was not until 1973, after passage of both Title IX and § 718, that the principle of municipal immunity established in Monroe was extended to suits for injunctive relief. See Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Even as the Court unpersuasively suggests that Congress might not have thought that private suits to remedy segregation in violation of the Fourteenth Amendment were available in 1972, it notes the furor in Congress at this time over busing as a desegregation remedy, see ante, at 701 n. 29.
19
See Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). Cf. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-460, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (implied cause of action under 42 U.S.C. § 1981).
20
At the time Allen was decided, the Department of Justice in enforcing the Voting Rights Act had not provided any formal means by which an individual could initiate review by the Department of a change affecting voting in an area covered by § 5. Since 1971, the Department has officially urged private parties to inform it of voting law changes in covered areas. 28 CFR §§ 51.12-51.15 (1978); 36 Fed.Reg. 18186 (1971). The Department of Health, Education, and Welfare has provided by regulation that any person may file a written complaint alleging discrimination in violation of Titles VI or IX within 180 days of the occurrence of the discrimination, and that after investigation HEW shall seek compliance, formally or informally, or shall inform the complainant in writing that further agency action is unwarranted. 45 CFR §§ 80.7(b), (c), 86.71 (1978). The federal respondents have represented to the Court that they would, "of course, fulfill their responsibility under applicable regulations to conduct an administrative investigation of petitioner's charges" should this Court affirm the decision below. Brief for Federal Respondents 54 n. 33.
1
The phrase "private cause of action" may not have a completely clear meaning. As the term is used herein, I refer to the right of a private party to seek judicial relief from injuries caused by another's violation of a legal requirement. In the context of legislation enacted by Congress, the legal requirement involved is a statutory duty.
2
See 42 U.S.C. § 2000a-3 (Title II; limited to preventive relief); § 2000e-5(f)(g) (Title VII; administrative preclearance required).
3
During this period, the Court did uphold the implication of civil remedies in favor of the Government, see Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960), and strongly suggested that private actions could be implied directly from particular provisions of the Constitution, Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). See also Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933). Both of these issues are significantly different from the implication of a private remedy from a federal statute. In Wyandotte and Republic Steel, the Government already had a "cause of action" in the form of its power to bring criminal proceedings under the pertinent statutes. Thus, the Court was confronted only with the question whether the Government could exact less drastic civil penalties as an alternative means of enforcing the same obligations. And this Court's traditional responsibility to safeguard constitutionally protected rights, as well as the freer hand we necessarily have in the interpretation of the Constitution, permits greater judicial creativity with respect to implied constitutional causes of action. Moreover, the implication of remedies to enforce constitutional provisions does not interfere with the legislative process in the way that the implication of remedies from statutes can. See Part III, infra.
4
The Act did not refer expressly to an obligation not to discriminate, but in light of its structure, especially its vesting in an authorized union the power to exclude all others from representing employees, the Court felt compelled to imply this duty. This construction of the Act was necessary to avoid a difficult constitutional question, namely, the applicability of the Constitution's prohibition of racial discrimination to a private party enjoying a statutorily created status as an exclusive bargaining agent. See Steele v. Louisville & N. R. Co., 323 U.S., at 202-203, 65 S.Ct., at 231-232; id., at 208-209, 65 S.Ct., at 234-235 (Murphy, J., concurring).
5
The Court states that a private cause of action also was implied in Machinists v. Central Airlines, 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963), a case involving an amendment of the Railway Labor Act applicable to airlines. Ante, at 692-693, n. 13. A careful reading of that case suggests that it presented a somewhat different question. Under § 204 of the 1936 amendments to the Act, boards of adjustment were established to resolve labor grievances. The Court held that a claim based on a collective-bargaining agreement that had been interpreted by such a board presented a federal question under 28 U.S.C. § 1331. The cause of action came directly from the agreement, not from any provision of the Act, and the only issue was whether this already existing private cause of action could be brought in a federal court. See Mishkin, The Federal "Question" in the District Courts, 53 Colum.L.Rev. 157, 166 (1953). Cf. Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921). Although as a practical matter this result entails many of the same problems involved in the implication of a private cause of action, see n. 17, infra, at least analytically the problems are quite different.
6
None of the authorities cited in the opinion supports the result. Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165 (1942), and Deitrick v. Greaney, 309 U.S. 190, 60 S.Ct. 480, 84 L.Ed. 694 (1940), held that federal law could limit a state-law defense to a state-law cause of action. Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940), held that a federal judge could devise equitable remedies to supplement an expressly created private action for damages. Similarly, Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960); Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245 (1948); and Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), upheld various equitable remedies devised under an express equitable cause of action. As already noted, Bell v. Hood, involved the implication of a private action from a constitutional provision, and Tunstall v. Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944), was grounded on a statute that provided no express means of enforcement. None of these cases condoned the implication of a private action in circumstances where alternatives means of enforcement were available. Although I do not suggest that we should consider overruling Borak at this late date, cf. Flood v. Kuhn, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972), the lack of precedential support for this decision militates strongly against its extension beyond the facts of the case. Cf. Santa Fe Industries v. Green, 430 U.S. 462, 477, 97 S.Ct. 1292, 1302, 51 L.Ed.2d 480 (1977); Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 723, 737, 95 S.Ct. 1917, 1926, 44 L.Ed.2d 539 (1975).
7
Both § 1981 and § 1982 are derived from § 1 of the Civil Rights Act of 1866, which was re-enacted in pertinent part in §§ 16 and 18 of the Civil Rights Act of 1870. Section 3 of the 1866 Act provided:
"[T]he district courts of the United States . . . shall have . . . cognizance . . . of all causes, civil and criminal, affecting persons who are denied . . . any of the rights secured to them by the first section of this act . . . . The jurisdiction in civil and criminal matters hereby conferred on the district and circuit courts of the United States shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offences against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of the cause . . . is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern said courts in the trial and disposition of such cause . . . ." 14 Stat. 27.
Section 18 of the 1870 Act made this section applicable to § 16 of the later Act. Subsequently Congress, through § 1 of the Civil Rights Act of 1871, indicated in even more explicit terms that private actions would be available to prevent official interference with the rights guaranteed by § 1 of the 1866 Act. See Chapman v. Houston Welfare Rights Org., 441 U.S., at 627-628, 99 S.Ct., at 1921 (POWELL, J., concurring). Although one might conclude, in light of the 1871 Act, that the 1866 and 1870 Acts did not provide for private actions but merely permitted federal courts to entertain state-law actions affecting the denial of civil rights, an equally plausible reading of those statutes is that Congress created a federal cause of action to enforce § 1 of the 1866 Act.
8
See, e. g., Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362 (1964); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Wilkinson, The Supreme Court, The Equal Protection Clause, and the Three Faces of Constitutional Equality, 61 Va.L.Rev. 945, 956-976 (1975). Cf. United States v. Carolene Products Co., 304 U.S. 144, 152-153 n. 4, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938) (Stone, J., concurring). See also United States v. Richardson, 418 U.S. 166, 195 n. 17, 94 S.Ct. 2940, 2955, 41 L.Ed.2d 678 (1974) (POWELL, J., concurring).
9
See ante, at 728-729.
10
Section 402 of the Act created an administrative procedure for investigating violations of Title IV and permitted the Secretary of Labor to sue in federal court to obtain relief. Section 403 of the Act stated that the administrative remedy was the exclusive means of challenging "an election already conducted" but did not limit attempts to obtain prospective relief, the object of the suit in Calhoon.
11
Since Borak, the Court also has entertained several cases involving challenges to various state welfare programs based in part on the Social Security Act. See, e. g., Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Most of these decisions did not confront the cause-of-action issue at all; none of them addressed the question whether a private cause of action could be implied. In some instances there were conclusory, and in my view incorrect, statements to the effect that 42 U.S.C. § 1983 might provide a basis for asserting these claims. See Chapman v. Houston Welfare Rights Org., 441 U.S., at 644-646, 99 S.Ct., at 1929-1930 (POWELL, J., concurring). The silence of these decisions with respect to inferring a private cause of action cannot be taken as authority for the implication of one.
12
The Court stated its analysis as follows:
"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, 693, 694, 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. 412, 423, 95 S.Ct. 1733, 1740, 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 law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394-395, 91 S.Ct. 1999, 2003-2004, 29 L.Ed.2d 619 (1971); id., at 400, 91 S.Ct. 2006 (Harlan, J., concurring in judgment)." 422 U.S., at 78, 95 S.Ct., at 2088.
13
The Court attempts to avoid the question-begging nature of this inquiry by emphasizing the precise phrasing of the statute at issue. Ante, at 689-693, and n. 13. Aside from its failure to contend with relevant decisions that do not conform to the perceived pattern, see, e. g., Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964); Switchmen v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed.2d 61 (1943), the Court's approach gives undue significance to essentially stylistic differences in legislative draftsmanship.
14
Mr. Justice REHNQUIST, perhaps considering himself temporarily bound by his position in University of California Regents v. Bakke, 438 U.S. 265, 418-421, 98 S.Ct. 2733, 2814-2815, 57 L.Ed.2d 750 (1978) (opinion of STEVENS, J.), concurs in the Court's decision today. But writing briefly, he correctly observes "that Congress, at least during the period of the enactment of the several Titles of the Civil Rights Act tended to rely to a large extent on the courts to decide whether there should be a private right of action, rather than determining this question for itself," ante, at 718. It does not follow, however, that this Court is obliged to indulge Congress in its refusal to confront these hard questions. In my view, the very reasons advanced by Mr. Justice REHNQUIST why "this Court in the future should be extremely reluctant to imply a cause of action" absent specific direction by Congress, ibid., apply to this case with special force.
15
Mr. Justice Frankfurter described these dangers with characteristic eloquence:
"Disregard of inherent limits in the effective exercise of the Court's 'judicial Power' . . . may well impair the Court's position as the ultimate organ of 'the supreme Law of the Land' in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements." Baker v. Carr, 369 U.S., at 267, 82 S.Ct., at 737-738, (dissenting opinion).
Alexander Bickel identified the practical difficulties in judicial exercise of governmental power:
"The judicial process is too principle-prone and principle-bound—it has to be, there is no other justification or explanation for the role it plays. It is also too remote from conditions, and deals, case by case, with too narrow a slice of reality. It is not accessible to all the varied interests that are in play in any decision of great consequence. It is, very properly, independent. It is passive. It has difficulty controlling the stages by which it approaches a problem. It rushes forward too fast, or it lags; its pace hardly ever seems just right. For all these reasons, it is, in a vast, complex, changeable society, a most unsuitable instrument for the formation of policy." The Supreme Court and the Idea of Progress 175 (1970).
16
See, e. g., United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979); Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943); P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 756-832 (1973); Friendly, In Praise of Erie —And of the New Federal Common Law, 39 N.Y.U.L.Rev. 383 (1964).
17
Because a private action implied from a federal statute has as an element the violation of that statute, see n. 1, supra, the action universally has been considered to present a federal question over which a federal court has jurisdiction under 28 U.S.C. § 1331. Thus, when a federal court implies a private action from a statute, it necessarily expands the scope of its federal-question jurisdiction.
It is instructive to compare decisions implying private causes of action to those cases that have found nonfederal causes of action cognizable by a federal court under § 1331. E. g., Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921). Where a court decides both that federal-law elements are present in a state-law cause of action, and that these elements predominate to the point that the action can be said to present a "federal question" cognizable in federal court, the net effect is the same as implication of a private action directly from the constitutional or statutory source of the federal-law elements. Compare Division 1287, Amalgamated Transit Union v. Kansas City Area Transportation Authority, 582 F.2d 444 (CA8 1978), cert. denied, 439 U.S. 444, 99 S.Ct. 872, 59 L.Ed.2d 56 (1979); Local 519, Amalgamated Transit Union v. LaCrosse Municipal Transit Utility, 585 F.2d 1340 (CA7 1978), with Local 519, Amalgamated Transit Union v. Greater Portland Transit Dist., 589 F.2d 1 (CA1 1978). To the extent an expansive interpretation of § 1331 permits federal courts to assume control over disputes which Congress did not consign to the federal judicial process, it is subject to the same criticisms of judicial implication of private actions discussed in the text.
18
Although the burdens of administrative regulation applied to colleges and universities through Title IX are not insubstantial, that process is at least under the control of Government officials whose personal interests are not directly implicated and whose actions are subject to congressional oversight. Private litigation, by contrast, is subject to no such checks.
19
We have recognized in other contexts that implication of a private cause of action can frustrate those alternative processes that exist to resolve such disputes and, given the costs of federal litigation today, may dramatically revise the balance of interests struck by the legislation. See Santa Fe Industries v. Green, 430 U.S., at 478-479, 97 S.Ct., at 1303-1304; Blue Chip Stamps v. Manor Drug Stores, 421 U.S., at 739-744, 95 S.Ct., at 1927-1929. That this concern applies fully to litigation under Title IX is borne out by the facts of this case. Petitioner's undergraduate grade-point average in basic sciences was 3.17, far below the 3.70 overall average of the University of Chicago's entering class, and her medical college admission test scores were in the bottom half of the applicant group. More than 2,000 applicants for the 104 positions at Chicago had better academic qualifications than petitioner. Furthermore, petitioner's age exceeded restrictions at both Chicago and Northwestern. If Title IX prohibits only purposeful discrimination such as would violate the Constitution were state action involved, a conclusion that seems forgone in light of our holding with respect to Title VI of the Civil Rights Act of 1964 in University of California Regents v. Bakke, 438 U.S., at 284-287, 98 S.Ct., at 2745-2747 (opinion of POWELL, J.); id., at 328-350, 98 S.Ct., at 2768-2779 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.), then the chances of petitioner's proving that the neutral age requirements used by Chicago and Northwestern are unlawful seem infinitesimal. Yet these schools have been forced to use their scarce resources to defend against this suit at three levels of our federal judicial system, and in light of the Court's holding today they must contend with at least one more round of proceedings.
20
See Brief for Federal Respondents 58-60, n. 36.
| 89
|
441 U.S. 768
99 S.Ct. 2077
60 L.Ed.2d 624
UNITED STATES, Petitioner,v.Neil T. NAFTALIN.
No. 78-561.
Argued March 26, 1979.
Decided May 21, 1979.
Syllabus
Respondent engaged in a fraudulent "short selling" scheme, by placing orders with brokers to sell certain shares of stock which he believed had peaked in price and which he falsely represented that he owned. Gambling that the price would decline substantially before he was required to deliver the securities, he planned to make offsetting purchases through other brokers at lower prices. But the market price rose sharply before the delivery date so that respondent was unable to make covering purchases and never delivered the securities. Consequently, the brokers were unable to deliver the securities to the investor-purchasers and were forced to borrow stock to make the delivery. In order to return the borrowed stock, the brokers had to purchase replacement shares on the open market at the now higher prices, a process known as "buying in." While the investors were thereby shielded from direct injury, the brokers suffered substantial financial losses. The District Court found respondent guilty of employing "a scheme and artifice to defraud" in the sale of securities in violation of § 17(a)(1) of the Securities Act of 1933, which makes it unlawful "for any person in the offer or sale of any securities . . . directly or indirectly . . . to employ any device, scheme, or artifice to defraud." The Court of Appeals, while finding the evidence sufficient to establish that respondent had committed fraud, vacated the conviction on the ground that the purpose of the Securities Act was to protect investors from fraudulent practices in the sale of securities and that since respondent's fraud injured only brokers and not investors, respondent did not violate § 17(a)(1).
Held: Section 17(a)(1) prohibits frauds against brokers as well as investors. Pp. 771-779.
(a) Nothing on the face of § 17(a)(1) indicates that it applies solely to frauds directed against investors. Rather, its language requires only that the fraud occur "in" an "offer or sale" of securities. Here, an offer and sale clearly occurred within the meaning of the terms as defined in § 2(3) of the Securities Act. And the fraud occurred "in" the "offer" and "sale," as the statute does not require that the fraud occur in any particular phase of the selling transaction. Pp. 772-773. (b) The fact that § 17(a)(3) makes it unlawful for any person in the offer or sale of any securities to engage in any transaction, practice, or course of business which operates as a fraud or deceit "upon the purchaser," does not mean that this latter phrase should be read into § 17(a)(1), since each subsection of § 17(a) proscribes a distinct category of misconduct. Pp. 773-774.
(c) Neither this Court nor Congress has ever suggested that investor protection was the sole purpose of the Securities Act. While prevention of fraud against investors was a key part of the purpose of the Act, so was the effort "to achieve a high standard of business ethics . . . in every facet of the securities industry," SEC v. Capital Gains Bureau, 375 U.S. 180, 186-187, 84 S.Ct. 275, 279-280, 11 L.Ed.2d 237, and this conclusion is amply supported by the legislative history. Pp. 774-776.
(d) Moreover, frauds against brokers may well redound to the detriment of investors. Although the investors in this case suffered no immediate financial injury, the indirect impact upon investors in such a situation can be substantial. And direct injury to investors is also possible. Had the brokers in this case been insolvent or unable to borrow, the investors might have failed to receive their promised shares. Placing brokers outside the aegis of § 17(a)(1) would create a loophole in the statute that Congress did not intend. Pp. 776-777.
(e) Although the Securities Act was primarily concerned with the regulation of new offerings of securities, the antifraud prohibition of § 17(a) was meant as a major departure from that limitation, and was intended to cover any fraudulent scheme in an offer or sale of securities, whether in the course of an initial distribution or in the course of ordinary market trading. Accordingly, the fact that respondent's fraud did not involve a new offering does not render § 17(a)(1) inapplicable to that fraud. Pp. 777-778.
(f) Since the words of § 17(a)(1) "plainly impose" a penalty for the acts committed in this case, it would be inappropriate to apply the rule that ambiguity as to the scope of a criminal statute should be resolved in favor of lenity. Pp. 778-779.
8 Cir., 579 F.2d 444, reversed.
Stephen M. Shapiro, Washington, D. C., for petitioner.
Joe A. Walters, Minneapolis, Minn., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question presented in this case is whether § 17(a)(1) of the Securities Act of 1933, 48 Stat. 84, as amended, 68 Stat. 686, 15 U.S.C. § 77q(a)(1), prohibits frauds against brokers as well as investors. We hold that it does.
2
Respondent, Neil Naftalin, was the president of a registered broker-dealer firm and a professional investor. Between July and August 1969, Naftalin engaged in a "short selling" scheme. He selected stocks that, in his judgment, had peaked in price and were entering into a period of market decline. He then placed with five brokers orders to sell shares of these stocks, although he did not own the shares he purported to sell. Gambling that the price of the securities would decline substantially before he was required to deliver them, respondent planned to make offsetting purchases through other brokers at lower prices. He intended to take as profit the difference between the price at which he sold and the price at which he covered. Respondent was aware, however, that had the brokers who executed his sell orders known that he did not own the securities, they either would not have accepted the orders, or would have required a margin deposit. He therefore falsely represented that he owned the shares he directed them to sell.1
3
Unfortunately for respondent, the market prices of the securities he "sold" did not fall prior to the delivery date, but instead rose sharply. He was unable to make covering purchases, and never delivered the promised securities. Consequently, the five brokers were unable to deliver the stock which they had "sold" to investors, and were forced to borrow stock to keep their delivery promises. Then, in order to return the borrowed stock, the brokers had to purchase replacement shares on the open market at the now higher prices, a process known as "buying in."2 While the investors to whom the stocks were sold were thereby shielded from direct injury, the five brokers suffered substantial financial losses.
4
The United States District Court for the District of Minnesota found respondent guilty on eight counts of employing "a scheme and artifice to defraud" in the sale of securities, in violation of § 17(a)(1).3 App. 24-25; App. to Pet. for Cert. 15a-20a. Although the Court of Appeals for the Eighth Circuit found the evidence sufficient to establish that respondent had committed fraud, 579 F.2d 444, 447 (1978), it nonetheless vacated his convictions. Finding that the purpose of the Securities Act "was to protect investors from fraudulent practices in the sale of securities," ibid., the court held that "the government must prove some impact of the scheme on an investor," id., at 448. Since respondent's fraud injured only brokers and not investors, the Court of Appeals concluded that Naftalin did not violate § 17(a)(1). We granted certiorari, 439 U.S. 1045, 99 S.Ct. 719, 59 L.Ed.2d 703 (1978), and now reverse.
5
* Section 17(a) of the Securities Act of 1933, subsection (1) of which respondent was found to have violated, states: "It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
6
"(1) to employ any device, scheme, or artifice to defraud, or
7
"(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
8
"(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser."
9
In this Court, Naftalin does not dispute that, by falsely representing that he owned the stock he sold, he defrauded the brokers who executed his sales. Brief for Respondent 7-8, 11; Tr. of Oral Arg. 17-18. He contends, however, that the Court of Appeals correctly held that § 17(a)(1) applies solely to frauds directed against investors, and not to those against brokers.
10
Nothing on the face of the statute supports this reading of it. Subsection (1) makes it unlawful for "any person in the offer or sale of any securities . . . directly or indirectly . . . to employ any device, scheme, or artifice to defraud . . . ." (Emphasis added.) The statutory language does not require that the victim of the fraud be an investor—only that the fraud occur "in" an offer or sale.
11
An offer and sale clearly occurred here. Respondent placed sell orders with the brokers; the brokers, acting as agents, executed the orders; and the results were contracts of sale, which are within the statutory definition, 15 U.S.C. § 77b(3). Moreover, the fraud occurred "in" the "offer" and "sale."4 The statutory terms, which Congress expressly intended to define broadly, see H.R.Rep.No.85, 73d Cong., 1st Sess., 11 (1933); 1 Loss 512 n. 163; cf. SEC v. National Securities, Inc., 393 U.S. 453, 467 n. 8, 89 S.Ct. 564, 572 n. 8, 21 L.Ed.2d 668 (1969), are expansive enough to encompass the entire selling process, including the seller/agent transaction. Section 2(3) of the Act, 48 Stat. 74, as amended, 68 Stat. 683, 15 U.S.C. § 77b(3), states:
12
"The term 'sale' . . . shall include every contract of sale or disposition of a security or interest in a security, for value. The term . . . 'offer' shall include every attempt or offer to dispose of . . . a security or interest in a security, for value." (Emphasis added.)
13
This language does not require that the fraud occur in any particular phase of the selling transaction. At the very least, an order to a broker to sell securities is certainly an "attempt to dispose" of them.
14
Thus, nothing in subsection (1) of § 17(a) creates a requirement that injury occur to a purchaser. Respondent nonetheless urges that the phrase, "upon the purchaser," found only in subsection (3) of § 17(a), should be read into all three subsections. The short answer is that Congress did not write the statute that way. Indeed, the fact that it did not provides strong affirmative evidence that while impact upon a purchaser may be relevant to prosecutions brought under § 17(a)(3), it is not required for those brought under § 17(a)(1). As is indicated by the use of an infinitive to introduce each of the three subsections, and the use of the conjunction "or" at the end of the first two each subsection proscribes a distinct category of misconduct.5 Each succeeding prohibition is meant to cover additional kinds of illegalities—not to narrow the reach of the prior sections. See United States v. Birrell, 266 F.Supp. 539, 542-543 (SDNY 1967). There is, therefore, "no warrant for narrowing alternative provisions which the legislature has adopted with the purpose of affording added safeguards." United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941).6
II
15
The court below placed primary reliance for its restrictive interpretation of § 17(a)(1) upon what it perceived to be Congress' purpose in passing the Securities Act. Noting that both this Court and Congress have emphasized the importance of the statute in protecting investors from fraudulent practices in the sale of securities, see Ernst & Ernst v. Hochfelder, 425 U.S. 185, 195, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976), the Court of Appeals concluded that "against this backdrop . . . we are constrained to hold that the government must prove some impact of the scheme on an investor." 579 F.2d, at 448.
16
But neither this Court nor Congress has ever suggested that investor protection was the sole purpose of the Securities Act. As we have noted heretofore, the Act "emerged as part of the aftermath of the market crash in 1929." Ernst & Ernst v. Hochfelder, supra, 425 U.S., at 194, 96 S.Ct., at 1381-1382. See generally 1 Loss 120-121. Indeed, Congress' primary contemplation was that regulation of the securities markets might help set the economy on the road to recovery. See 77 Cong.Rec. 2925 (1933) (remarks of Rep. Kelly); id., at 2935 (remarks of Rep. Chapman); id., at 3232 (remarks of Sen. Norbeck); H.R.Rep.No.85, 73d Cong., 1st Sess., 2 (1933). Prevention of frauds against investors was surely a key part of that program, but so was the effort "to achieve a high standard of business ethics . . . in every facet of the securities industry." SEC v. Capital Gains Bureau, 375 U.S. 180, 186-187, 84 S.Ct. 275, 280, 11 L.Ed.2d 237 (1963) (emphasis added). See Ernst & Ernst v. Hochfelder, supra, 425 U.S., at 195, 96 S.Ct., at 1382; United States v. Brown, 555 F.2d 336, 338-339 (CA2 1977).
17
This conclusion is amply supported by reference to the legislative record. The breadth of Congress' purpose is most clearly demonstrated by the Senate Report:
18
"The purpose of this bill is to protect the investing public and honest business. . . . The aim is to prevent further exploitation of the public by the sale of unsound, fraudulent, and worthless securities through misrepresentation; to place adequate and true information before the investor; to protect honest enterprise, seeking capital by honest presentation, against the competition afforded by dishonest securities offered to the public through crooked promotion; to restore the confidence of the prospective investor in his ability to select sound securities; to bring into productive channels of industry and development capital which has grown timid to the point of hoarding; and to aid in providing employment and restoring buying and consuming power." S.Rep.No.47, 73d Cong., 1st Sess., 1 (1933).
19
While investor protection was a constant preoccupation of the legislators, the record is also replete with references to the desire to protect ethical businessmen. See 77 Cong.Rec. 2925 (1933) (remarks of Rep. Kelly); id., at 2983 (remarks of Sen. Fletcher); id., at 3232 (remarks of Sen. Norbeck); S.Rep.No.47, 73d Cong., 1st Sess., 1 (1933). As Representative Chapman stated, "[t]his legislation is designed to protect not only the investing public but at the same time to protect honest corporate business." 77 Cong.Rec. 2935 (1933). Respondent's assertion that Congress' concern was limited to investors is thus manifestly inconsistent with the legislative history.
20
Moreover, the welfare of investors and financial intermediaries are inextricably linked—frauds perpetrated upon either business or investors can redound to the detriment of the other and to the economy as a whole. See generally Securities and Exchange Commission, Report of the Special Study of the Securities Markets, H.R.Doc.No.95, 88th Cong., 1st Sess., pt. 1, pp. 9-11 (1963). Fraudulent short sales are no exception.7 Although investors suffered no immediate financial injury in this case because the brokers covered the sales by borrowing and then "buying in," the indirect impact upon investors may be substantial. "Buying in" is in actuality only a form of insurance for investors and, like all forms of insurance, has its own costs. Losses suffered by brokers increase their cost of doing business, and in the long run investors pay at least part of this cost through higher brokerage fees. In addition, unchecked short-sale frauds against brokers would create a level of market uncertainty that could only work to the detriment of both investors and the market as a whole. Finally, while the investors here were shielded from direct injury, that may not always be the case. Had the brokers been insolvent or unable to borrow, the investors might well have failed to receive their promised shares. Entitled to receive shares at one price under the purchase agreement, they would have had to buy substitute shares in the market at a higher price.8 Placing brokers outside the aegis of § 17(a) would create a loophole in the statute that Congress simply did not intend to create.
III
21
Although the question was not directly presented in the Government's petition for certiorari, respondent asserts a final, independent argument in support of the judgment below. That assertion is that the Securities Act of 1933 was "preoccupied with" the regulation of initial public offerings of securities, and that Congress waited until the Securities Exchange Act of 1934 to regulate abuses in the trading of securities in the "aftermarket." As Naftalin's fraud did not involve a new offering, he contends that § 17(a) is inapplicable, and that he should have been prosecuted for violations of either the specific short-selling regulations promulgated under the 1934 Act,9 or for violations of the general antifraud proscriptions of the 1934 Act's § 10(b), 15 U.S.C. § 78j(b), and the SEC's Rule 10b-5, 17 CFR § 240.10b-5 (1978). Tr. of Oral Arg. 17-18; Brief for Respondent 16-17, 22-24.
22
Although it is true that the 1933 Act was primarily concerned with the regulation of new offerings, respondent's argument fails because the antifraud prohibition of § 17(a) was meant as a major departure from that limitation. Unlike much of the rest of the act, it was intended to cover any fraudulent scheme in an offer or sale of securities, whether in the course of an initial distribution or in the course of ordinary market trading. 1 Loss 130; Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L.J. 171, 182 (1933); V. Brudney & M. Chirelstein, Corporate Finance 740 (1972). This is made abundantly clear both by the statutory language, which makes no distinctions between the two kinds of transactions, and by the Senate Report, which stated:
23
"The act subjects the sale of old or outstanding securities to the same criminal penalties and injunctive authority for fraud, deception, or misrepresentation as in the case of new issues put out after the approval of the act. In other words, fraud or deception in the sale of securities may be prosecuted regardless of whether the security is old or new, or whether or not it is of the class of securities exempted under sections 11 or 12." S.Rep.No.47, 73d Cong., 1st Sess., 4 (1933).
24
Accord, H.R.Rep.No.85, 73d Cong., 1st Sess., 6 (1933). Respondent is undoubtedly correct that the two Acts prohibit some of the same conduct. See 3 Loss 1428. But "[t]he fact that there may well be some overlap is neither unusual nor unfortunate." SEC v. National Securities, Inc., 393 U.S., at 468, 89 S.Ct. at 573. See Edwards v. United States, 312 U.S. 473, 484, 61 S.Ct. 669, 675, 85 L.Ed. 957 (1941). It certainly does not absolve Naftalin of guilt for the transactions which violated the statute under which he was convicted.
IV
25
This is a criminal case, and we have long held that " 'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,' " United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 1116, 55 L.Ed.2d 349 (1978), quoting Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), and that a defendant may not " 'be subjected to a penalty unless the words of the statute plainly impose it,' " United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971), quoting Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362, 25 S.Ct. 443, 445, 49 L.Ed. 790 (1905). In this case, however, the words of the statute do "plainly impose it." Here, "Congress has conveyed its purpose clearly, and we decline to manufacture ambiguity where none exists," United States v. Culbert, supra, 435 U.S., at 379, 98 S.Ct., at 1117. The decision of the Court of Appeals for the Eighth Circuit is
26
Reversed.
27
Mr. Justice POWELL took no part in the consideration or decision of this case.
1
A broker may mark an order to sell a customer's shares "long" if he "is informed that the seller owns the security ordered to be sold and, as soon as possible without undue inconvenience or expense, will deliver the security . . .." 17 CFR § 240.10a-1(d) (1978).
2
If a broker executes a sell order marked "long" and the seller fails to deliver the securities when due, under certain circumstances the broker must "buy in" substitute securities. See 17 CFR § 240.10a-2(a) (1978). See also 2 L. Loss, Securities Regulation 1233-1235 (2d ed. 1961) (hereinafter Loss).
3
Willful violations of § 17(a) are made subject to criminal sanctions by § 24 of the Securities Act, 15 U.S.C. § 77x.
4
Respondent contends that the requirement that the fraud be "in" the offer or sale connotes a narrower range of activities than does the phrase "in connection with," which is found in § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b). First, we are not necessarily persuaded that "in" is narrower than "in connection with." Both Congress, see H.R.Rep.No.85, 73d Cong., 1st Sess., 6 (1933), and this Court, see Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 10, 92 S.Ct. 165, 167, 30 L.Ed.2d 128 (1971), have on occasion used the terms interchangeably. But even if "in" were meant to connote a narrower group of transactions than "in connection with," there is nothing to indicate that "in" is narrower in the sense insisted upon by Naftalin.
5
Moreover, while matters like "punctuation [are] not decisive of the construction of a statute," Costanzo v. Tillinghast, 287 U.S. 341, 344, 53 S.Ct. 152, 153, 77 L.Ed. 350 (1932), where they reaffirm conclusions drawn from the words themselves they provide useful confirmation. Here the use of separate numbers to introduce each subsection, and the fact that the phrase "upon the purchaser" was set off solely as part of subsection (3), confirm our conclusion that "[n]othing on the face of the statute suggests a congressional intent to limit its coverage," United States v. Culbert, 435 U.S. 371, 373, 98 S.Ct. 1112, 1113, 55 L.Ed.2d 349 (1978), to frauds against purchasers.
6
This case involves a criminal prosecution. The decision in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), which limited to purchasers or sellers the class of plaintiffs who may have private implied causes of action under Securities and Exchange Commission Rule 10b-5, is therefore inapplicable. See SEC v. National Securities, Inc., 393 U.S. 453, 467 n. 9, 89 S.Ct. 564, 572 n. 9, 21 L.Ed.2d 668 (1969).
7
It bears repeating that respondent was not convicted for short selling, but for fraudulent short selling.
8
Although this potential for immediate financial injury to investors has been reduced by the "buy in" regulations, see 17 CFR § 240.10a-2 (1978), as well as by the provisions of the Securities Investor Protection Act of 1970, see 15 U.S.C. § 78aaa et seq., the potential for indirect injury, described supra, still remains. Moreover, these legal requirements did not exist when the 1933 Act was passed, and hence at that time the kind of fraud practiced by respondent might well have caused investors direct financial injury. The subsequent enactments do not serve to restrict the original scope of § 17(a).
9
See 15 U.S.C. §§ 78g, 78j(a); 12 CFR §§ 220.3, 220.4(c)(ii), 220.8(d), 224.2 (1978); 17 CFR § 240.10a-1 (1978).
| 78
|
441 U.S. 786
99 S.Ct. 2088
60 L.Ed.2d 640
Commonwealth of KENTUCKY, Petitioner,v.Harold WHORTON.
No. 78-749.
May 21, 1979.
Rehearing Denied Oct. 1, 1979.
See 444 U.S. 887, 100 S.Ct. 186.
PER CURIAM.
1
In Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), this Court reversed a criminal conviction resulting from a trial in which the judge had refused to give a requested jury instruction on the presumption of innocence. Relying on its understanding of that decision, the Kentucky Supreme Court in the present case held that such an instruction is constitutionally required in all criminal trials, and that the failure of a trial judge to give it cannot be harmless error. Ky., 570 S.W.2d 627. We granted certiorari to consider whether the Kentucky Supreme Court correctly interpreted our holding in Taylor. 439 U.S. 1067, 99 S.Ct. 832, 59 L.Ed.2d 31.
2
* The respondent was charged in three separate indictments with the commission of several armed robberies. At trial, numerous eyewitnesses identified the respondent as the perpetrator. Weapons, stolen money, and other incriminating evidence found in the respondent's automobile were introduced in evidence. The respondent did not take the stand in his own defense. The only evidence on his behalf was given by his wife and sister who offered alibi testimony concerning his whereabouts during the time of the commission of one of the robberies.
3
The respondent's counsel requested that the jury be instructed on the presumption of innocence.1 This instruction was refused by the trial judge. An instruction was given, however, to the effect that the jury could return a verdict of guilty only if they found beyond a reasonable doubt that the respondent had committed the acts charged in the indictment with the requisite criminal intent.
4
The jury found the respondent guilty of 10 counts of first-degree robbery, 2 counts of first-degree wanton endangerment, and 2 counts of first-degree attempted robbery. The respondent was sentenced to consecutive terms of imprisonment totaling 230 years.
5
On appeal, the respondent argued that he had been denied due process of law in violation of the Fourteenth Amendment by reason of the trial judge's refusal to give an instruction on the presumption of innocence. A divided Kentucky Supreme Court agreed, interpreting this Court's decision in Taylor "to mean that when an instruction on the presumption of innocence is asked for and denied there is a reversible error." Ky., 570 S.W.2d, at 633.2
6
Two justices filed separate dissenting opinions. In their view, the Taylor case should be understood as dealing with the factual situation there presented, and not as establishing a constitutional rule that failure to instruct the jury on the presumption of innocence requires automatic reversal of a conviction. Since these justices concluded that the respondent received a fair trial, they would have affirmed the convictions.
II
7
While this Court in Taylor reversed a conviction resulting from a trial in which the judge had refused to give a requested instruction on the presumption of innocence, the Court did not there fashion a new rule of constitutional law requiring that such an instruction be given in every criminal case. Rather, the Court's opinion focused on the failure to give the instruction as it related to the overall fairness of the trial considered in its entirety.
8
The Court observed, for example, that the trial judge's instructions were "Spartan," 436 U.S., at 486, 98 S.Ct., at 1935, that the prosecutor improperly referred to the indictment and otherwise made remarks of dubious propriety, id., at 486-488, 98 S.Ct., at 1935-1936, and that the evidence against the defendant was weak. Id., at 488, 98 S.Ct., at 1936. "[T]he 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." Id., at 487-488, 98 S.Ct., at 1936.
9
It was under these circumstances that the Court held that the failure of the trial court to instruct the jury on the presumption of innocence denied the defendant due process of law. Indeed, the Court's holding was expressly limited to the facts: "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." Id., at 490, 98 S.Ct., at 1937 (emphasis added). This explicitly limited holding, and the Court's detailed discussion of the circumstances of the defendant's trial, belie any intention to create a rule that an instruction on the presumption of innocence is constitutionally required in every case.
10
In short, the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor, such a failure must be evaluated in light of the totality of the circumstances—including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors—to determine whether the defendant received a constitutionally fair trial.
11
The Kentucky Supreme Court thus erred in interpreting Taylor to hold that the Due Process Clause of the Fourteenth Amendment absolutely requires that an instruction on the presumption of innocence must be given in every criminal case. The court's inquiry should have been directed to a determination of whether the failure to give such an instruction in the present case deprived the respondent of due process of law in light of the totality of the circumstances.
12
Accordingly, the judgment is reversed, and the case is remanded to the Supreme Court of Kentucky for further proceedings not inconsistent with this opinion.
13
It is so ordered.
14
Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
15
No principle is more firmly established in our system of criminal justice than the presumption of innocence that is accorded to the defendant in every criminal trial. In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the Court held that the Due Process Clause of the Fourteenth Amendment requires proof beyond a reasonable doubt of a defendant's guilt. I believe that the Due Process Clause of the Fourteenth Amendment equally requires the presumption that a defendant is innocent until he has been proved guilty.
16
Almost 85 years ago, the Court said: "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. Only three years ago the Court reaffirmed that the presumption of innocence "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. See also Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335. And a fair trial, after all, is what the Due Process Clause of the Fourteenth Amendment above all else guarantees.
17
While an instruction on the presumption of innocence in one sense only serves to remind the jury that the prosecutor has the burden of proof beyond a reasonable doubt, it also has a separate and distinct function. Quite apart from considerations of the burden of proof, the presumption of innocence "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." 9 J. Wigmore, Evidence § 2511, p. 407 (3d ed. 1940). And because every defendant, regardless of the totality of the circumstances, is entitled to have his guilt determined only on the basis of the evidence properly introduced against him at trial, I would hold that an instruction on the presumption of innocence is constitutionally required in every case where a timely request has been made.1
18
There may be cases where the failure to give such an instruction could not have affected the outcome of the trial. If that conclusion can be drawn beyond a reasonable doubt, failure to give the instruction would be harmless error. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. Since the Kentucky Supreme Court did not consider this possibility, I would vacate its judgment and remand the case to that court, but only for consideration of whether the failure to give the instruction in the circumstances presented here was harmless error.2
1
The respondent's lawyer made a timely request that the following instruction be given:
"The law presumes an accused to be innocent of crime. He begins the trial with a clean slate, with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit an accused unless the jury members are satisfied beyond a reasonable doubt of the accused's guilt from all the evidence in the case."
2
The wanton endangerment convictions were reversed on state-law grounds not relevant here.
1
At least one Member of the Court understood our opinion in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 to hold precisely that. See id., at 490, 98 S.Ct., at 1937 (Brennan, J., concurring).
2
On remand, the Kentucky court would of course be free to hold as a matter of state law that it would not consider the question of harmless error in this context. See Watson v. Commonwealth, 579 S.W.2d 103 (Ky.).
| 01
|
441 U.S. 792
99 S.Ct. 2400
60 L.Ed.2d 646
Peggy J. CONNOR et al.v.J. P. COLEMAN, Judge, United States Court of Appeals, et al
No. 78-1013
Supreme Court of the United States
May 21, 1979
On petition for a writ of mandamus.
PER CURIAM.
1
On 440 U.S. 612, 99 S.Ct. 1523, 59 L.Ed.2d 619. The order granting leave recited that we continued for 30 days our consideration of the petition.
2
The Clerk of the District Court has now formally advised the Clerk of this Court that on April 13, 1979, the District Court entered a final judgment specifying a court-ordered plan for the reapportionment of the legislature and for elections to be conducted in the coming summer. The District Court Clerk has also stated that all parties to the litigation have announced in open court that there will be no appeal.
3
The petition for a writ of mandamus is therefore denied.
4
So ordered.
5
Mr. Justice POWELL took no part in the decision on this petition.
| 12
|
441 U.S. 750
99 S.Ct. 2066
60 L.Ed.2d 609
OSCAR MAYER & CO. et al., Petitioners,v.Joseph W. EVANS.
No. 78-275.
Argued Feb. 28, 1979.
Decided May 21, 1979.
Syllabus
Section 14(b) of the Age Discrimination in Employment Act of 1967 (ADEA) provides that in the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and authorizing a state authority to grant and seek relief from such discriminatory practice, no suit may be brought under § 7(c) of the ADEA before the expiration of 60 days after proceedings have been commenced under the state law, unless such proceedings have been earlier terminated. Section 14(b) also provides that if any requirement for the commencement of such proceedings is imposed by a state authority other than a requirement of a filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of § 14(b) at the time such statement is sent by registered mail to the appropriate state authority. Respondent, who had been involuntarily retired after 23 years of employment by petitioner company, filed with the United States Department of Labor a notice of intent to sue the company under the ADEA, charging that he had been forced to retire because of his age in violation of the Act. Upon respondent's inquiry, the Department informed him that the ADEA contained no requirement that he file a state complaint in order to preserve his federal rights. After federal conciliation efforts failed, respondent brought suit against petitioner company and company officials in Federal District Court, which denied petitioners' motion to dismiss the complaint on the grounds that the Iowa State Civil Rights Commission was empowered to remedy age discrimination in employment and that § 14(b) required resort to this state remedy prior to the commencement of the federal suit. The Court of Appeals affirmed.
Held:
1. Under § 14(b), resort to administrative remedies by claimants in States with agencies empowered to remedy age discrimination in employment (deferral States) is mandatory, not optional, and federal suit may not be brought under the ADEA unless the claimant has first commenced a proceeding with the appropriate state agency. Pp. 754-758.
(a) Since the ADEA and Title VII of the Civil Rights Act of 1964 share the common purpose of the elimination of discrimination in the workplace, since the language of § 14(b) is almost in haec verba with § 706(c) of Title VII, which has been interpreted to require individuals in deferral States to resort to appropriate state proceedings before bringing suit under Title VII, and since the legislative history of § 14(b) indicates that its source was § 706(c), it may be properly concluded that Congress intended that the construction of § 14(b) should follow that of § 706(c). Pp. 755-756.
(b) Claimants do not have the option to ignore state remedies merely because under the ADEA, unlike Title VII, they may file with state and federal agencies simultaneously. The ADEA permits concurrent rather than sequential state and federal administrative jurisdiction in order to expedite the processing and settling of age-discrimination claims, and thus the possibility of concurrent state and federal cognizance does not support the construction of § 14(b) that ADEA grievants may ignore state remedies altogether. A Committee Report accompanying 1978 ADEA amendments which suggested that resort to state remedies should be optional under § 14(b) is insufficient to overcome the clear and convincing evidence that Congress, in 1967, intended § 14(b) to have the same meaning as § 706(c). Pp. 756-758.
2. However, a grievant is not required by § 14(b) to commence state proceedings within time limits specified by state law. Pp. 758-764.
(a) By its terms, § 14(b) requires only that state proceedings be "commenced" 60 days before federal litigation is instituted, and use of the word "commenced" strongly implies that state limitations periods are irrelevant. This implication is made express by the provision in § 14(b) that if a state authority imposes requirements "other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based," the proceeding shall be deemed to have been commenced for purposes of § 14(b) at the time such statement is sent by registered mail to the appropriate state authority. State limitations periods are requirements other than that specified in § 14(b) and, thus, even if a State were to make timeliness a precondition for commencement, a state proceeding will be deemed commenced for purposes of § 14(b) as soon as the complaint is filed. Pp. 759-760.
(b) This construction of the statute is consistent both with the ADEA's remedial purposes and with the purposes of § 14(b), which does not stipulate an exhaustion requirement, but is intended only to give state agencies a limited opportunity to settle the grievances of ADEA claimants in a voluntary and localized manner so that the grievants thereafter have no need or desire for independent federal relief. The ADEA's structure—setting forth limitations periods in explicit terms in §§ 7(d) and (e), not § 14(b)—reinforces the conclusion that state procedural defaults cannot foreclose federal relief and that state limitations periods cannot govern the efficacy of the federal remedy. Pp. 761-764.
3. Even though Iowa's 120-day statute of limitations has run, respondent may yet comply with the requirements of § 14(b) by simply filing a signed complaint with the Iowa State Civil Rights Commission. That Commission must be given an opportunity to entertain respondent's grievance before his federal litigation can continue. Meanwhile the federal suit should be held in abeyance, rather than be dismissed with leave to refile, because respondent has already filed a timely federal complaint and to require a second filing would serve no purpose other than the creation of an additional procedural technicality. If respondent's state complaint is subsequently dismissed as untimely, he may then return to federal court; but until that happens, or until 60 days have passed without a settlement, respondent must pursue his state remedy. Pp. 764-765.
580 F.2d 298, reversed and remanded.
James W. Gladden, Jr., Chicago, Ill., for petitioners.
Allan A. Ryan, Jr., Washington, D. C., for the U. S., as amicus curiae, supporting respondent, by special leave of Court.
Mark W. Bennett, Des Moines, Iowa, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Section 14(b) of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 607, as set forth in 29 U.S.C. § 633(b), provides in pertinent part:
2
"In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, . . . [i]f any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority."
3
This case presents three questions under that section. First, whether § 14(b) requires an aggrieved person to resort to appropriate state remedies before bringing suit under § 7(c) of the ADEA, 29 U.S.C. § 626(c). Second, if so, whether, the state proceedings must be commenced within time limits specified by state law in order to preserve the federal right of action. Third, if so, whether any circumstances may excuse the failure to commence timely state proceedings.
4
We hold that § 14(b) mandates that a grievant not bring suit in federal court under § 7(c) of the ADEA until he has first resorted to appropriate state administrative proceedings. We also hold, however, that the grievant is not required by § 14(b) to commence the state proceedings within time limits specified by state law. In light of these holdings, it is not necessary to address the question of the circumstances, if any, in which failure to comply with § 14(b) may be excused.
5
* Respondent Joseph Evans was employed by petitioner Oscar Mayer & Co. for 23 years until his involuntary retirement in January 1976. On March 10, 1976, respondent filed with the United States Department of Labor a notice of intent to sue the company under the ADEA. Respondent charged that he had been forced to retire because of his age in violation of the Act. At approximately this time respondent inquired of the Department whether he was obliged to file a state complaint in order to preserve his federal rights. The Department informed respondent that the ADEA contained no such requirement. Relying on this official advice, respondent refrained from resorting to state proceedings. On March 7, 1977, after federal conciliation efforts had failed, respondent brought suit against petitioner company and company officials in the United States District Court for the Southern District of Iowa.
6
Petitioners moved to dismiss the complaint on the grounds that the Iowa State Civil Rights Commission was empowered to remedy age discrimination in employment and that § 14(b) required resort to this state remedy prior to the commencement of the federal suit. The District Court denied the motion, and the Court of Appeals for the Eighth Circuit affirmed.1 580 F.2d 298 (1978). We granted certiorari, 439 U.S. 925, 99 S.Ct. 308, 58 L.Ed.2d 318 (1978). We reverse.
II
7
Petitioners argue that § 14(b) mandates that in States with agencies empowered to remedy age discrimination in employment (deferral States) a grievant may not bring suit under the ADEA unless he has first commenced a proceeding with the appropriate state agency. Respondent, on the other hand, argues that the grievant has the option of whether to resort to state proceedings, and that § 14(b) requires only that grievants choosing to resort to state remedies wait 60 days before bringing suit in federal court. The question of construction is close, but we conclude that petitioners are correct.
8
Section 14(b) of the ADEA was patterned after and is virtually in haec verba with § 706(c) of Title VII of the Civil Rights Act of 1964 (formerly 706(b)), 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U.S.C. § 2000e-5(c).2 The relevant portion of § 706(c) reads as follows:
9
"In the case of an alleged unlawful employment practice occurring in a State, . . . which has a . . . law prohibiting the unlawful employment practice alleged and establishing or authorizing a State . . . authority to grant or seek relief from such practice . . ., no charge may be filed . . . by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State . . . law, unless such proceedings have been earlier terminated . . . ."
10
Congress intended through § 706(c) to screen from the federal courts those problems of civil rights that could be settled to the satisfaction of the grievant in "a voluntary and localized manner." See 110 Cong. Rec. 12725 (1964) (remarks of Sen. Humphrey). The section is intended to give state agencies a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination. See Voutsis v. Union Carbide Corp., 452 F.2d 889 (CA2 1971). Because state agencies cannot even attempt to resolve discrimination complaints not brought to their attention, the section has been interpreted to require individuals in deferral States to resort to appropriate state proceedings before bringing suit under Title VII. See Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Olson v. Rembrandt Printing Co., 511 F.2d 1228 (CA8 1975).3
11
Since the ADEA and Title VII share a common purpose, the elimination of discrimination in the workplace, since the language of § 14(b) is almost in haec verba with § 706(c), and since the legislative history of § 14(b) indicates that its source was § 706(c), we may properly conclude that Congress intended that the construction of § 14(b) should follow that of § 706(c). See Northcross v. Memphis Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973). We therefore conclude that § 14(b), like § 706(c), is intended to screen from the federal courts those discrimination complaints that might be settled to the satisfaction of the grievant in state proceedings. We further conclude that prior resort to appropriate state proceedings is required under § 14(b), just as under § 706(c).
12
The contrary arguments advanced by respondent in support of construing § 14(b) as merely optional are not persuasive. Respondent notes first that under Title VII persons aggrieved must file with a state antidiscrimination agency before filing with the Equal Employment Opportunity Commission (EEOC). See 42 U.S.C. § 2000e-5(c). Under the ADEA, by contrast, grievants may file with state and federal agencies simultaneously. See 29 U.S.C. §§ 626(d) and 633(b).4 From this respondent concludes that the ADEA pays less deference to state agencies and that, as a consequence, ADEA claimants have the option to ignore state remedies.
13
We disagree. The ADEA permits concurrent rather than sequential state and federal administrative jurisdiction in order to expedite the processing of age-discrimination claims. The premise for this difference is that the delay inherent in sequential jurisdiction is particularly prejudicial to the rights of "older citizens to whom, by definition, relatively few productive years are left." 113 Cong.Rec. 7076 (1967) (remarks of Sen. Javits).
14
The purpose of expeditious disposition would not be frustrated were ADEA claimants required to pursue state and federal administrative remedies simultaneously. Indeed, simultaneous state and federal conciliation efforts may well facilitate rapid settlements. There is no reason to conclude, therefore, that the possibility of concurrent state and federal cognizance supports the construction of § 14(b) that ADEA grievants may ignore state remedies altogether.
15
Respondent notes a second difference between the ADEA and Title VII. Section 14(a) of the ADEA, 29 U.S.C. § 633(a), for which Title VII has no counterpart, provides that upon commencement of an action under ADEA, all state proceedings are superseded. From this, respondent concludes that it would be an exercise in futility to require aggrieved persons to file state complaints since those persons may, after only 60 days, abort their involuntary state proceeding by filing a federal suit.
16
We find no merit in the argument. Unless § 14(b) is to be stripped of all meaning, state agencies must be given at least some opportunity to solve problems of discrimination. While 60 days provides a limited time for the state agency to act, that was a decision for Congress to make and Congress apparently thought it sufficient. As Senator Dirksen told the Senate during the debates on § 14(b)'s predecessor, § 706(c) of Title VII:
17
"[A]t the local level . . . many cases are disposed of in a matter of days, and certainly not more than a few weeks.
18
In the case of California, FEPC cases are disposed of in an average of about 5 days. In my own State it is approximately 14 days." 110 Cong.Rec. 13087 (1964).
19
Respondent argues finally that a Committee Report that accompanied 1978 ADEA amendments supports his construction of § 14(b).5 This Committee Report suggested that resort to state remedies should be optional under § 14(b). See S.Rep.No. 95-493, pp. 6-7 (1978), adopted in Joint Explanatory Statement of the Committee of Conference, H.R.Conf.Rep.No. 95-950, pp. 7, 12 (1978); U.S.Code Cong. & Admin.News 1978, pp. 528, 534.
20
We are not persuaded. Senate Report No. 95-493 was written 11 years after the ADEA was passed in 1967, and such "[l]egislative observations . . . are in no sense part of the legislative history." United Airlines, Inc. v. McMann, 434 U.S. 192, 200 n. 7, 98 S.Ct. 444, 449, 54 L.Ed.2d 402 (1977). "It is the intent of the Congress that enacted [the section] . . . that controls." Teamsters v. United States, 431 U.S. 324, 354 n. 39, 97 S.Ct. 1843, 1864, 52 L.Ed.2d 396 (1977). Whatever evidence is provided by the 1978 Committee Report of the intent of Congress in 1967, it is plainly insufficient to overcome the clear and convincing evidence that Congress intended § 14(b) to have the same meaning as § 706(c). We therefore hold that under § 14(b) of the ADEA, as under § 706(c) of Title VII, resort to administrative remedies in deferral States by individual claimants is mandatory, not optional.6
III
21
We consider now the consequences of respondent's failure to file a complaint with the Iowa State Civil Rights Commission. Petitioners argue that since Iowa's 120-day age-discrimination statute of limitations has run, see Iowa Code §§ 601A.14(1), (15) (1975), it is now too late for respondent to remedy his procedural omission and that respondent's federal action is therefore jurisdictionally barred. Respondent pleads that since his failure to file was due to incorrect advice by the Department of Labor, his tardiness should be excused.
22
Both arguments miss the mark. Neither questions of jurisdiction nor questions of excuse arise unless Congress mandated that resort to state proceedings must be within time limits specified by the State. We do not construe § 14(b) to make that requirement. Section 14(b) requires only that the grievant commence state proceedings. Nothing whatever in the section requires the respondent here to commence those proceedings within the 120 days allotted by Iowa law in order to preserve a right of action under § 7(c).
23
We start with the language of the section. Section 14(b) provides, in relevant part, that
24
"no suit may be brought . . . before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated." 29 U.S.C. § 633(b) (emphasis added).
25
By its terms, then, the section requires only that state proceedings be commenced 60 days before federal litigation is instituted; besides commencement no other obligation is placed upon the ADEA grievant. In particular, there is no requirement that, in order to commence state proceedings and thereby preserve federal rights, the grievant must file with the State within whatever time limits are specified by state law. Rather, use of the word "commenced" strongly implies the opposite—that state limitations periods are irrelevant—since, by way of analogy, under the Federal Rules of Civil Procedure even a time-barred action may be "commenced" by the filing of a complaint. See Fed.Rule Civ.Proc. 3; Magalotti v. Ford Motor Co., 418 F.Supp. 430, 434 (ED Mich.1976).
26
This implication is made express by the last sentence of § 14(b), which specifically provides:
27
"If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority." 29 U.S.C. § 633(b).
28
State limitations periods are, of course, requirements "other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based." Therefore, even if a State were to make timeliness a precondition for commencement, rather than follow the more typical pattern of making untimeliness an affirmative defense, a state proceeding will be deemed commenced for purposes of § 14(b) as soon as the complaint is filed.
29
This has been the prevailing interpretation of § 14(b). See Nickel v. Shatterproof Glass Corp., 424 F.Supp. 884 (ED Mich.1976); Magalotti v. Ford Motor Co., supra.7 It is also the prevailing interpretation of § 14(b)'s counterpart, § 706(c) of Title VII, which contains an identical definition of commencement. See Davis v. Valley Distributing Co., 522 F.2d 827, 831-833 (CA9 1975), cert. denied, 429 U.S. 1090, 97 S.Ct. 1099, 51 L.Ed.2d 535 (1977); Olson v. Rembrandt Printing Co., 511 F.2d, at 1232; Pinckney v. County of Northampton, 433 F.Supp. 373, 376 n. 1 (ED Pa.1976); McAdams v. Thermal Industries, Inc., 428 F.Supp. 156, 161 (WD Pa.1977); De Gideo v. Sperry-Univac Co., 415 F.Supp. 227, 229 (ED Pa.1976); see also White v. Dallas Independent School Dist., 581 F.2d 556, 562 n. 10 (CA5 1978) (en banc) (filing with EEOC tolls state limitations period for federal purposes); Ferguson v. Kroger Co., 545 F.2d 1034 (CA6 1976) (EEOC's negligent failure to refer charge to state agency within state limitations period does not foreclose federal claim). But see Richardson v. Miller, 446 F.2d 1247 (CA3 1971).
30
It is also the EEOC's interpretation of § 14(b), see Case No. KC7-5-315, CCH EEOC Decisions (1973) ¶ 6024 (1969), and as such is "entitled to great deference." Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 128 (1971).
31
This construction of the statute is fully consistent with the ADEA's remedial purposes and is particularly appropriate "in a statutory scheme in which laymen, unassisted by trained lawyers initiate the process." Love v. Pullman Co., 404 U.S., at 527, 92 S.Ct., at 619.
32
It is also consistent with the purposes of § 14(b). Section 14(b) does not stipulate an exhaustion requirement. The section is intended only to give state agencies a limited opportunity to settle the grievances of ADEA claimants in a voluntary and localized manner so that the grievants thereafter have no need or desire for independent federal relief. Individuals should not be penalized if States decline, for whatever reason, to take advantage of these opportunities. See Pacific Maritime Assn. v. Quinn, 465 F.2d 108 (CA9 1972). Congress did not intend to foreclose federal relief simply because state relief was also foreclosed. See Voutsis v. Union Carbide Corp., 452 F.2d, at 893.8
33
The structure of the ADEA reinforces the conclusion that state procedural defaults cannot foreclose federal relief and that state limitations periods cannot govern the efficacy of the federal remedy. The ADEA's limitations periods are set forth in explicit terms in 29 U.S.C. §§ 626(d)9 and (e),10 not § 14(b), 29 U.S.C. § 633(b). Sections 626(d) and (e) adequately protect defendants against stale claims. We will not attribute to Congress an intent through § 14(b) to add to these explicit requirements by implication and to incorporate by reference into the ADEA the various state age-discrimination statutes of limitations. Cf. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 371, 97 S.Ct. 2447, 2457, 53 L.Ed.2d 402 (1977). Congress could not have intended to consign federal lawsuits to the "vagaries of diverse state limitations statutes," ibid., particularly since, in many States, including Iowa, the limitations periods are considerably shorter than the 180-day period allowed grievants in nondeferral States by 29 U.S.C. § 626(d)(1). See De Gideo v. Sperry-Univac Co., supra, 415 F.Supp., at 231 n.9.
34
That Congress regarded incorporation as inconsistent with the federal scheme is made clear by the legislative history of § 706(c)'s definition of commencement—the same definition later used in § 14(b). Proponents of Title VII were concerned that localities hostile to civil rights might enact sham discrimination ordinances for the purpose of frustrating the vindication of federal rights. See 2 B. Schwartz, Statutory History of the United States: Civil Rights 1330 (1970). The statutory definition of commencement as requiring the filing of a state complaint and nothing more was intended to meet this concern while at the same time avoiding burdensome case-by-case inquiry into the reasonableness of various state procedural requirements. Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). As Senator Humphrey explained to the Senate:
35
"[T]o avoid the possible imposition of onerous State requirements for initiating a proceeding, subsection (b) provides that to comply with the requirement of prior resort to the State agency, an individual need merely send a written statement of the facts to the State agency by registered mail." 2 Schwartz, supra, at 1352.
36
The strongest argument against this construction of the statute is that it would permit grievants to avoid state intervention by waiting until the state statute of limitations has expired and then filing federal suit, thus frustrating the intent of Congress that federal litigation be used as a last resort.
37
No reason suggests itself, however, why an employee would wish to forgo an available state remedy. Prior resort to the state remedy would not impair the availability of the federal remedy, for the two are supplementary, not mutually exclusive. A complainant would save no time by bypassing the state remedy since the federal court must, in any event, defer to the State for 60 days, and is required to defer no longer. See Davis v. Valley Distributing Co., 522 F.2d 827 (CA9 1975); Nickel v. Shatterproof Glass Corp., 424 F.Supp. 884 (ED Mich. 1976).11
38
We therefore hold that respondent may yet comply with the requirements of § 14(b) by simply filing a signed complaint with the Iowa State Civil Rights Commission. That Commission must be given an opportunity to entertain respondent's grievance before his federal litigation can continue. Meanwhile, the federal suit should be held in abeyance. If, as respondent fears, his state complaint is subsequently dismissed as untimely, respondent may then return to federal court.12 But until that happens, or until 60 days have passed without a settlement, respondent must pursue his state remedy.
39
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that Court with instructions to enter an order directing the District Court to hold respondent's suit in abeyance until respondent has complied with the mandate of § 14(b).13
40
It is so ordered.
41
Mr. Justice BLACKMUN, concurring.
42
My preference in this case would have been to affirm the judgment of the Court of Appeals. I am so inclined because I regard the Age Discrimination in Employment Act to be a remedial statute that is to be liberally construed, and because I feel that an affirmance would give full recognition to that remedial character. In addition, I could be persuaded that state procedures and remedies in existence at the time the Act was passed in 1967 were not particularly helpful for the complainant and were procedurally frustrating; that the fact that a federal proceeding supersedes one on the state side indicates which is to be dominant; that ADEA proceedings have their analogy in Fair Labor Standards Act litigation and not in Title VII proceedings; that no waiting period is required before a complainant may resort to a federal remedy (whereas, in striking contrast, under Title VII, state jurisdiction is exclusive for 60 days); that one could reasonably regard the statute as affording a complainant the option of filing either on the state side or on the federal side, and the constraints of § 14(b) as applicable only if he pursues the state remedy; that it seems so needless to require an untimely state filing that inevitably, and automatically, is to be rejected; that the legislative history of the 1978 amendments, see ante, at 758,* while of course not conclusive, might well be regarded, because of its positiveness and clarity, as shedding at least some helpful illumination upon persistent and continuing congressional intent in and since 1967; and that the Government's participation as amicus curiae on the side of the respondent also affords some indication of the intended interplay of the federal and state legislation.
43
The court acknowledges that the "question of construction is close." Ante, at 755. But this is one of those cases that occasionally appears in the procedural area where it is more important that it be decided (in order to dispel existing conflict, see ante, at 760-761, and n.7) than that it be decided correctly.
44
Inasmuch as I feel that I can live with the Court's decision in this case and that, in the long run, justice will not be denied to anyone possessed of a valid claim, I join the Court's opinion and its judgment.
45
Mr. Justice STEVENS, with whom THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST join, concurring in part and dissenting in part.
46
Section 14(b) of the Age Discrimination in Employment Act of 1967, 81 Stat. 607, 29 U.S.C. § 633(b), explicitly states that "no suit may be brought" under the Act until the individual has first resorted to appropriate state remedies. Respondent has concededly never resorted to state remedies. In my judgment, this means that his suit should not have been brought and should now be dismissed.
47
Throughout this litigation both parties have assumed that dismissal would be required if § 14(b) is construed to mandate individual resort to state remedies in deferral States. In Part II of its opinion, which I join, the Court so construes the statute. However, in Part III of its opinion, the Court volunteers some detailed legal advice about the effect of a suggested course of conduct that respondent may now pursue and then orders that his suit be held in abeyance while he follows that advice.
48
Regardless of whether the Court's advice is accurate—a question that should not be answered until some litigant has raised it—I am unable to join Part III. If respondent should decide at this point to resort to state remedies, and if his complaint there is found to be time barred, and if he should then seek relief in federal court, the question addressed in Part III of the Court's opinion—whether § 14(b) requires resort to state remedies "within time limits specified by the State"—would then be presented. But that question is not presented now, and I decline to join or to render an advisory opinion on its merits. I would simply order that this suit be dismissed in accordance with "the mandate of § 14(b)." Ante, at 765.
1
The Court of Appeals initially reversed the District Court but on rehearing withdrew its opinion and substituted an opinion affirming the District Court.
2
See Hearings on S. 830 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess., 102 (1967) (testimony of Mr. Biemiller); id., at 228 (1967) (testimony of Mr. Conway).
3
Even respondent concedes that under § 706(c) resort to appropriate state proceedings is mandatory, not optional. See Brief for Respondent 18.
4
ADEA grievants may file with the State before or after they file with the Secretary of Labor.
5
Respondent concedes that the amendments themselves "are not relevant to the questions raised in this case." Brief for Respondent 3 n. 1.
6
This rule, of course, governs only claims for individual relief, such as the present case. Nothing in our decision in anywise disturbs the rule of Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 2370 n. 8, 45 L.Ed.2d 280 (1975), concerning the rights of unnamed parties in plaintiff class actions.
7
A number of cases have reached a similar result upon slightly different theories. See e. g., Skoglund v. Singer Co., 403 F.Supp. 797 (N.H.1975) (timely state complaint not required unless there has been a deliberate bypass of state procedure); Bertsch v. Ford Motor Co., 415 F.Supp. 619 (ED Mich.1976) (timely state complaint not required if state limitations period significantly shorter than 180 days). See also Vaughn v. Chrysler Corp., 382 F.Supp. 143 (ED Mich.1974) (timely state complaint not required if claimant detrimentally relied upon mistaken official advice). Two cases have reached contrary results. See Graham v. Chrysler Corp., 15 FEP Cases 876 (ED Mich.1976); McGhee v. Ford Motor Co., 15 FEP Cases 869 (ED Mich.1976).
8
This is made clear by Senator Humphrey's remarks to the Senate concerning the limits of federal deference under § 706(c):
"[W]e recognized the absolute necessity of providing the Federal Government with authority to act in instances where States and localities did not choose to exercise these opportunities to solve the problem of civil rights in a voluntary and localized manner. The basic rights protected by [Title VII] are rights which accrue to citizens of the United States; the Federal Government has the clear obligation to see that these rights are fully protected. In instances where States are unable or unwilling to provide this protection, the Federal Government must have the authority to act." 110 Cong.Rec. 12725 (1964).
9
Title 29 U.S.C. § 626(d) provides:
"No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days' notice of an intent to file such action. Such notice shall be filed—
"(1) within one hundred and eighty days after the alleged unlawful practice occurred, or
"(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.
"Upon receiving a notice of intent to sue, the Secretary shall promptly notify all persons named therein as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion."
10
Title 29 U.S.C. § 626(e) provides:
"Sections 255 and 259 of this title shall apply to actions under this chapter."
Title 29 U.S.C. § 255 provides in relevant part:
"Any action commenced on or after May 14, 1947 . . .
"(a) if the cause of action accrues on or after May 14, 1947 may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued."
11
Moreover, even the danger that state remedies will be inadvertently bypassed by otherwise proper ADEA plaintiffs will soon become nonexistent. After July 1, 1979, the EEOC will administer the ADEA. See Reorg. Plan No. 1 of 1978, 3 CFR 321 (1979). Discrimination charges will have to be filed with the EEOC within time limits specified by federal law, and the EEOC already has a regular procedure whereby discrimination complaints are automatically referred to appropriate agencies as soon as they are received. See Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); 29 CFR § 1601.13 (1978). Thus, the deference to state agencies required by § 14(b) will soon become automatic.
In any event, even if the risk of bypass of state agencies were real, which it is not, States could readily avoid the possibility by extending their limitations periods to 180 days and by tolling their statutes of limitations upon the filing of a timely charge with the Department of Labor. See Davis v. Valley Distributing Co. Cf. Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965).
12
Whether Iowa may toll its statute of limitations from the date that respondent contacted the Department of Labor is a question of Iowa law not for our decision. See Iowa Civil Rights Comm'n v. Massey-Ferguson, Inc., 207 N.W.2d 5, 8 (Iowa 1973).
13
Suspension of proceedings is preferable to dismissal with leave to refile. Respondent's timely complaint has already satisfied the requirements of 29 U.S.C. § 626(e). "To require a second 'filing' by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers initiate the process." Love v. Pullman Co., supra, 404 U.S., at 526-527, 92 S.Ct., at 619 (charge may be held in suspended animation during deferral period). For this reason, suspension pending deferral is the preferred practice in the federal courts. See Crosslin v. Mountain States Tel. & Tel. Co., 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971) (judgment of dismissal for want of jurisdiction arising from failure to defer vacated; case remanded for consideration of stay pending deferral); Gabriele v. Chrysler Corp., 573 F.2d 949, 956 n. 18 (CA6 1978); Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (CA9 1973); Parker v. General Telephone Co. of the Northwest, Inc., 476 F.2d 595, 596 (CA9 1973); Mitchell v. Mid-Continent Spring Co. of Ky., 466 F.2d 24, 26-27 (CA6 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1363, 35 L.Ed.2d 589 (1973); Motorola, Inc. v. EEOC, 460 F.2d 1245, 1246 (CA9 1972); Bertrand v. Orkin Exterminating Co., Inc., 419 F.Supp. 1123, 1130 (ND Ill.1976); Winsey v. Pace College, 394 F.Supp. 1324, 1329 (SDNY1975).
*
"[A]n individual who has been discriminated against because of age is free to proceed either under state law or under federal law. The choice is up to the individual." S.Rep.No.95-493, p. 7 (1978), adopted in Joint Explanatory Statement of the Committee of Conference, H.R.Conf.Rep.No.95-950, pp. 7, 12 (1978); U.S.Code Cong. & Admin.News 1978, p. 510.
| 12
|
441 U.S. 780
99 S.Ct. 2085
60 L.Ed.2d 634
UNITED STATES, Petitioner,v.Charles TIMMRECK.
No. 78-744.
Argued April 16, 1979.
Decided May 21, 1979.
Syllabus
Respondent was convicted of a federal drug offense upon a guilty plea. Upon accepting the plea the trial judge explained to respondent that he could receive a 15-year prison sentence and a $25,000 fine, but failed to mention a mandatory special parole term of at least 3 years required by the applicable statute. Respondent was then sentenced to 10 years' imprisonment plus a 5-year special parole term, and fined $5,000. Subsequently, respondent moved in District Court to vacate the sentence pursuant to 28 U.S.C. § 2255 on the ground that the trial judge had violated Fed.Rule Crim.Proc. 11 by accepting the guilty plea without informing respondent of the mandatory special parole term. The District Court, while recognizing that a violation of Rule 11 had occurred, held that it did not justify collateral relief under § 2255. The Court of Appeals reversed, holding that a violation of Rule 11 will support a collateral attack on a conviction based on a guilty plea even when there is neither constitutional error nor any showing of special prejudice to the defendant.
Held: A conviction based on a guilty plea is not subject to collateral attack when all that can be shown is a formal violation of Rule 11. Such a violation is neither constitutional nor jurisdictional. Nor can any claim reasonably be made that the error here resulted in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417. Respondent could have raised his claim on direct appeal but did not, and there is no basis here for allowing collateral attack to do service for an appeal. Pp. 783-785.
6 Cir., 577 F.2d 372, reversed.
Kenneth S. Geller, Washington, D. C., for petitioner.
Kenneth M. Mogill, Detroit, Mich., for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.
1
The question presented is whether a conviction based on a guilty plea is subject to collateral attack whenever it can be shown that Rule 11 of the Federal Rules of Criminal Procedure was violated when the plea was accepted.
2
In this case, acting on the advice of counsel, respondent pleaded guilty to a charge of conspiracy to distribute various controlled substances. As required by Rule 11,1 the District Judge formally addressed respondent and determined that there was a factual basis for the plea and that he was acting voluntarily. The judge explained that respondent could receive a sentence of 15 years' imprisonment and a $25,000 fine, but the judge failed to describe the mandatory special parole term of at least 3 years required by the applicable statute.2
3
The District Judge accepted the guilty plea and, at a later proceeding, sentenced respondent to 10 years' imprisonment plus a special parole term of 5 years, and a fine of $5,000. Pursuant to a plea bargain with the prosecutor, other charges against respondent were dismissed. No objection to the sentence was raised at the time, and defendant did not take an appeal from his conviction.
4
About two years later, respondent moved to vacate the sentence pursuant to 28 U.S.C. § 22553 on the ground that the trial judge had violated Rule 11 by accepting his plea without informing him of the mandatory special parole term. The District Court held an evidentiary hearing, at which respondent's lawyer testified that it was his normal practice to inform his clients about the mandatory special parole term but that he could not recall whether or not he had given such advice to this defendant. Following this hearing, the District Court denied the motion. The court recognized that a violation of Rule 11 had occurred, but concluded that it did not justify collateral relief under § 2255 because respondent had not suffered any prejudice inasmuch as he had received a sentence within the maximum described to him at the time the guilty plea was accepted.
5
The Court of Appeals reversed. 577 F.2d 372. It held that a violation of Rule 11 will support a collateral attack on a conviction based on a guilty plea even when there is neither constitutional error nor any showing of special prejudice to the defendant. Because of the importance of that holding to the administration of justice, we granted certiorari, 439 U.S. 1065, 99 S.Ct. 830, 59 L.Ed.2d 30, and now reverse.
6
In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417, the Court was presented with the question whether a collateral attack under § 2255 could be predicated on a violation of Fed. Rule Crim. Proc. 32(a), which gives the defendant the right to make a statement on his own behalf before he is sentenced. The Court rejected the claim, stating:
7
"The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present 'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455. See Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302." 368 U.S., at 428, 82 S.Ct., at 471.
8
The reasoning in Hill is equally applicable to a formal violation of Rule 11. Such a violation is neither constitutional nor jurisdictional: the 1966 amendment to Rule 11 obviously could not amend the Constitution or limit the jurisdiction of the federal courts. Nor can any claim reasonably be made that the error here resulted in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the Rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, but was not. And there is no basis here for allowing collateral attack "to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982.
9
Indeed, if anything, this case may be a stronger one for foreclosing collateral relief than the Hill case. For the concern with finality served by the limitation on collateral attack4 has special force with respect to convictions based on guilty pleas.
10
"Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea." United States v. Smith, 7 Cir., 440 F.2d 521, 528-529 (Stevens, J., dissenting).
11
As in Hill, we find it unnecessary to consider whether § 2255 relief would be available if a violation of Rule 11 occurred in the context of other aggravating circumstances. "We decide only that such collateral relief is not available when all that is shown is a failure to comply with the formal requirements of the Rule." 368 U.S., at 429, 82 S.Ct., at 472.
The judgment of the Court of Appeals is
12
Reversed.
1
At the time of respondent's guilty plea, Rule 11 provided:
"A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea."
Rule 11 now provides in pertinent part:
"Advice to Defendant.
"Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
"(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and
"(2) if the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him; and
"(3) that he has the right to plead not guilty or to persist in that plea if it has already been made, and he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
"(4) that if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial; and
"(5) that if he pleads guilty or nolo contendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury or false statement."
2
21 U.S.C. § 841(b)(1)(A).
3
Title 28 U.S.C. § 2255 provides in pertinent part:
"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."
4
See Stone v. Powell, 428 U.S. 465, 491 and n. 31, 96 S.Ct. 3037, 3051, and n. 31, 49 L.Ed.2d 1067; Henderson v. Kibbe, 431 U.S. 145, 154 n. 13, 97 S.Ct. 1730, 1737 n. 13, 52 L.Ed.2d 203.
| 01
|
442 U.S. 1
99 S.Ct. 2100
60 L.Ed.2d 668
John B. GREENHOLTZ, etc., et al., Petitioners,v.INMATES OF the NEBRASKA PENAL AND CORRECTIONAL COMPLEX et al.
No. 78-201.
Argued Jan. 17, 1979.
Decided May 29, 1979.
Syllabus
Under Nebraska statutes a prison inmate becomes eligible for discretionary parole when his minimum term, less good-time credits, has been served. Hearings are conducted in two stages to determine whether to grant or deny parole: initial review hearings and final parole hearings. Initial review hearings must be held at least once a year for every inmate. At the first stage, the Board of Parole examines the inmate's preconfinement and postconfinement record, and holds an informal hearing; the Board interviews the inmate and considers any letters or statements presented in support of a claim for release. If the Board determines that the inmate is not yet a good risk for release, it denies parole, stating why release was deferred. If the Board determines that the inmate is a likely candidate for release, a final hearing is scheduled, at which the inmate may present evidence, call witnesses, and be represented by counsel. A written statement of the reasons is given if parole is denied. One section of the statutes (§ 83-1,114(1)) provides that the Board "shall" order an inmate's release unless it concludes that his release should be deferred for at least one of four specified reasons. Respondent inmates, who had been denied parole, brought a class action in Federal District Court, which upheld their claim that the Board's procedures denied them procedural due process. The Court of Appeals, agreeing, held that the inmates had the same kind of constitutionally protected "conditional liberty" interest as was recognized in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, also found a statutorily defined, protectible interest in § 83-1,114(1), and required, inter alia, that a formal hearing be held for every inmate eligible for parole and that every adverse parole decision include a statement of the evidence relied upon by the Board.
Held:
1. A reasonable entitlement to due process is not created merely because a State provides for the possibility of parole, such possibility providing no more than a mere hope that the benefit will be obtained. Parole revocation, for which certain due process standards must be met, Morrissey v. Brewer, supra, entails deprivation of a liberty one has and is a decision involving initially a wholly retrospective factual question as to whether the parolee violated his parole. Parole release involves denial of a liberty desired by inmates and that decision depends on an amalgam of elements, some factual but many purely subjective evaluations by the Board. Pp.9-11.
2. While the language and structure of § 83-1,114(1) provides a mechanism for parole that is entitled to some constitutional protection, the Nebraska procedure provides all the process due with respect to the discretionary parole decision. Pp.11-16
(a) The formal hearing required by the Court of Appeals would provide at best a negligible decrease in the risk of error. Since the Board of Parole's decision at its initial review hearing is one that must be made largely on the basis of the inmate's file, this procedure adequately safeguards against serious risks of error and thus satisfies due process. Pp. 14-15.
(b) Nothing in due process concepts requires the Board to specify the particular "evidence" in the inmate's file or at his interview on which it rests its discretionary determination to deny release. The Nebraska procedure affords an opportunity to be heard and when parole is denied, it informs the inmate in what respects he falls short of qualifying for parole; this affords all the process that is due in these circumstances, nothing more being required by the Constitution. Pp 15-16.
576 F.2d 1274, reversed and remanded.
Ralph H. Gillan, Lincoln, Neb., for petitioners.
William Alsup, San Francisco, Cal., for the United States, as amicus curiae, by special leave of Court.
Brian K. Ridenour, Lincoln, Neb., for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to decide whether the Due Process Clause of the Fourteenth Amendment applies to discretionary parole-release determinations made by the Nebraska Board of Parole, and, if so, whether the procedures the Board currently provides meet constitutional requirements.
2
* Inmates of the Nebraska Penal and Correctional Complex brought a class action under 42 U.S.C. § 1983 claiming that they had been unconstitutionally denied parole by the Board of Parole. The suit was filed against the individual members of the Board. One of the claims of the inmates was that the statutes and the Board's procedures denied them procedural due process.
3
The statutes provide for both mandatory and discretionary parole. Parole is automatic when an inmate has served his maximum term, less good-time credits. Neb.Rev.Stat. § 83-1,107(1)(b) (1976). An inmate becomes eligible for discretionary parole when the minimum term, less good-time credits, has been served. § 83-1,110(1). Only discretionary parole is involved in this case.
4
The procedures used by the Board to determine whether to grant or deny discretionary parole arise partly from statutory provisions and partly from the Board's practices. Two types of hearings are conducted: initial parole review hearings and final parole hearings. At least once each year initial review hearings must be held for every inmate, regardless of parole eligibility. § 83-192(9).1 At the initial review hearing, the Board examines the inmate's entire preconfinement and postconfinement record. Following that examination it provides an informal hearing; no evidence as such is introduced, but the Board interviews the inmate and considers any letters or statements that he wishes to present in support of a claim for release.
5
If the Board determines from its examination of the entire record and the personal interview that he is not yet a good risk for release, it denies parole, informs the inmate why release was deferred and makes recommendations designed to help correct any deficiencies observed. It also schedules another initial review hearing to take place within one year.
6
If the Board determines from the file and the initial review hearing that the inmate is a likely candidate for release, a final hearing is scheduled. The Board then notifies the inmate of the month in which the final hearing will be held; the exact day and time is posted on a bulletin board that is accessible to all inmates on the day of the hearing. At the final parole hearing, the inmate may present evidence, call witnesses and be represented by private counsel of his choice. It is not a traditional adversary hearing since the inmate is not permitted to hear adverse testimony or to cross-examine witnesses who present such evidence. However, a complete tape recording of the hearing is preserved. If parole is denied, the Board furnishes a written statement of the reasons for the denial within 30 days. § 83-1,111(2).2
II
7
The District Court held that the procedures used by the Parole Board did not satisfy due process. It concluded that the inmate had the same kind of constitutionally protected "conditional liberty" interest, recognized by this Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held that some of the procedures used by the Parole Board fell short of constitutional guarantees, and prescribed several specific requirements.
8
On appeal, the Court of Appeals for the Eighth Circuit agreed with the District Court that the inmate had a Morrissey- type, conditional liberty interest at stake and also found a statutorily defined, protectible interest in Neb.Rev.Stat. § 83-1,114 (1976). The Court of Appeals, however, 576 F.2d 1274, 1285, modified the procedures required by the District Court as follows:
9
(a) When eligible for parole each inmate must receive a full formal hearing;
10
(b) the inmate is to receive written notice of the precise time of the hearing reasonably in advance of the hearing, setting forth the factors which may be considered by the Board in reaching its decision;
11
(c) subject only to security considerations, the inmate may appear in person before the Board and present documentary evidence in his own behalf. Except in unusual circumstances, however, the inmate has no right to call witnesses in his own behalf;
12
(d) a record of the proceedings, capable of being reduced to writing, must be maintained; and
13
(e) within a reasonable time after the hearing, the Board must submit a full explanation, in writing, of the facts relied upon and reasons for the Board's action denying parole.
14
The court's holding mandating the foregoing procedures for parole determinations conflicts with decisions of other Courts of Appeals, see, e. g., Brown v. Lundgren, 528 F.2d 1050 (CA5), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976); Scarpa v. United States Board of Parole, 477 F.2d 278 (CA5) (en banc), vacated as moot, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44 (1973); Scott v. Kentucky Parole Board, No. 74-1899 (CA6 Jan. 15, 1975), vacated and remanded to consider mootness, 429 U.S. 60, 97 S.Ct. 342, 50 L.Ed.2d 218 (1976). See also Franklin v. Shields, 569 F.2d 784, 800 (CA4 1977), cert. denied, 435 U.S. 1003, 98 S.Ct. 1659, 56 L.Ed.2d 92 (1978); United States ex rel. Richerson v. Wolff, 525 F.2d 797 (CA7 1975), cert. denied, 425 U.S. 914, 96 S.Ct. 1511, 47 L.Ed.2d 764 (1976). We granted certiorari to resolve the Circuit conflicts. 439 U.S. 817, 99 S.Ct. 76, 58 L.Ed.2d 107.
III
15
The Due Process Clause applies when government action deprives a person of liberty or property; accordingly, when there is a claimed denial of due process we have inquired into the nature of the individual's claimed interest.
16
"[T]o determine whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake." Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 2705-2706, 33 L.Ed.2d 548 (1972).
17
This has meant that to obtain a protectible right
18
"a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead,have a legitimate claim of entitlement to it." Id., at 577, 92 S.Ct. at 2709.
19
There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: "[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty." Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976).
20
Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations. See Id., at 225, 96 S.Ct. at 2538; Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976); Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279, 50 L.Ed.2d 236 (1976). This is especially true with respect to the sensitive choices presented by the administrative decision to grant parole release.
21
A state may, as Nebraska has, establish a parole system, but it has no duty to do so. Moreover, to insure that the state-created parole system serves the public-interest purposes of rehabilitation and deterrence,3 the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority. It is thus not surprising that there is no prescribed or defined combination of facts which, if shown, would mandate release on parole. Indeed, the very institution of parole is still in an experimental stage. In parole releases, like its siblings probation release and institution rehabilitation, few certainties exist. In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community.4 This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate's release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice. The entire inquiry is, in a sense, an "equity" type judgment that cannot always be articulated in traditional findings.
IV
22
Respondents suggest two theories to support their view that they have a constitutionally protected interest in a parole determination which calls for the process mandated by the Court of Appeals. First, they claim that a reasonable entitlement is created whenever a state provides for the possibility of parole. Alternatively, they claim that the language in Nebraska's statute, Neb.Rev.Stat. § 83-1,114(1) (1976), creates a legitimate expectation of parole, invoking due process protections.
A.
23
In support of their first theory, respondents rely heavily on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), where we held that a parole-revocation determination must meet certain due process standards. See also Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). They argue that the ultimate interest at stake both in a parole-revocation decision and in a parole determination is conditional liberty and that since the underlying interest is the same the two situations should be accorded the same constitutional protection.
24
The fallacy in respondents' position is that parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires. The parolees in Morrissey (and probationers in Gagnon ) were at liberty and as such could "be gainfully employed and [were] free to be with family and friends and to form the other enduring attachments of normal life." 408 U.S., at 482, 92 S.Ct. at 2600. The inmates here, on the other hand, are confined and thus subject to all of the necessary restraints that inhere in a prison.
25
A second important difference between discretionary parole release from confinement and termination of parole lies in the nature of the decision that must be made in each case. As we recognized in Morrissey, the parole-revocation determination actually requires two decisions: whether the parolee in fact acted in violation of one or more conditions of parole and whether the parolee should be recommitted either for his or society's benefit. Id., at 479-480, 92 S.Ct. at 2599. "The first step in a revocation decision thus involves a wholly retrospective factual question." Id., at 479, 92 S.Ct. at 2599.
26
The parole-release decision, however, is more subtle and depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release. Unlike the revocation decision, there is no set of facts which, if shown, mandate a decision favorable to the individual. The parole determination, like a prisoner-transfer decision, may be made
27
"for a variety of reasons and often involve[s] no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate." Meachum v. Fano, 427 U.S., at 225, 96 S.Ct., at 2538.
28
The decision turns on a "discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done." Kadish, The Advocate and the Expert—Counsel in the Peno-Correctional Process, 45 Minn.L.Rev. 803, 813 (1961).
29
The differences between an initial grant of parole and the revocation of the conditional liberty of the parolee are well recognized. In United States ex rel. Bey v. Connecticut Board of Parole, 443 F.2d 1079, 1086 (CA2 1971), the Second Circuit took note of this critical distinction:
30
"It is not sophistic to attach greater importance to a person's justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom."
31
Judge Henry Friendly cogently noted that "there is a human difference between losing what one has and not getting what one wants." Friendly, "Some Kind of Hearing," 123 U.Pa.L.Rev. 1267, 1296 (1975). See also Brown v. Lundgren, 528 F.2d, at 1053; Scarpa v. United States Board of Parole, 477 F.2d, at 282; Franklin v. Shields, 569 F.2d, at 799 (Field, J., dissenting); United States ex rel. Johnson v. Chairman, New York State Board of Parole, 500 F.2d 925, 936 (CA2 1974) (Hay, J., dissenting).
32
That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained. Board of Regents v. Roth, 408 U.S., at 577, 92 S.Ct., at 2709. To that extent the general interest asserted here is no more substantial than the inmate's hope that he will not be transferred to another prison, a hope which is not protected by due process. Meachum v. Fano, 427 U.S., at 225, 96 S.Ct., at 2538; Montanye v. Haymes, supra.
B
33
Respondents' second argument is that the Nebraska statutory language itself creates a protectible expectation of parole. They rely on the section which provides in part:
34
"Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:
35
"(a) There is a substantial risk that he will not conform to the conditions of parole;
36
"(b) His release would depreciate the seriousness of his crime or promote disrespect for law;
37
"(c) His release would have a substantially adverse effect on institutional discipline; or
38
"(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date." Neb.Rev.Stat. § 83-1,114(1) (1976).5
39
Respondents emphasize that the structure of the provision together with the use of the word "shall" binds the Board of Parole to release an inmate unless any one of the four specifically designated reasons are found. In their view, the statute creates a presumption that parole release will be granted, and that this in turn creates a legitimate expectation of release absent the requisite finding that one of the justifications for deferral exists.
40
It is argued that the Nebraska parole-determination provision is similar to the Nebraska statute involved in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), that granted good-time credits to inmates. There we held that due process protected the inmates from the arbitrary loss of the statutory right to credits because they were provided subject only to good behavior. We held that the statute created a liberty interest protected by due process guarantees. The Board argues in response that a presumption would be created only if the statutory conditions for deferral were essentially factual, as in Wolff and Morrissey, rather than predictive.
41
Since respondents elected to litigate their due process claim in federal court, we are denied the benefit of the Nebraska courts' interpretation of the scope of the interest, if any, the statute was intended to afford to inmates. See Bishop v. Wood, 426 U.S. 341, 345, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). We can accept respondents' view that the expectancy of release provided in this statute is entitled to some measure of constitutional protection. However, we emphasize that this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis. We therefore turn to an examination of the statutory procedures to determine whether they provide the process that is due in these circumstances.
42
It is axiomatic that due process "is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S., at 481, 92 S.Ct., at 2600; Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162163, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
43
Here, as we noted previously, the Parole Board's decision as defined by Nebraska's statue is necessarily subjective in part and predictive in part. Like most parole statutes, it vests very broad discretion in the Board. No ideal, error-free way to make parole-release decisions has been developed; the whole question has been and will continue to be the subject of experimentation involving analysis of psychological factors combined with fact evaluation guided by the practical experience of the actual parole decisionmakers in predicting future behavior. Our system of federalism encourages this state experimentation. If parole determinations are encumbered by procedures that states regard as burdensome and unwarranted, they may abandon or curtail parole. Cf. Me.Rev.Stat.Ann., Tit. 34, §§ 1671-1679 (1964), repealed, 1975 Me.Acts, ch. 499, § 71 (repealing the State's parole system).
44
It is important that we not overlook the ultimate purpose of parole which is a component of the long-range objective of rehabilitation. The fact that anticipations and hopes for rehabilitation programs have fallen far short of expectations of a generation ago need not lead states to abandon hopes for those objectives; states may adopt a balanced approach in making parole determinations, as in all problems of administering the correctional systems. The objective of rehabilitating convicted persons to be useful, law-abiding members of society can remain a goal no matter how disappointing the progress. But it will not contribute to these desirable objectives to invite or encourage a continuing state of adversary relations between society and the inmate.
45
Procedures designed to elicit specific facts, such as those required in Morrissey, Gagnon, and Wolff, are not necessarily appropriate to a Nebraska parole determination. See Board of Curators, Univ. of Missouri v. Horowitz, 435 U.S. 78, 90, 98 S.Ct. 948, 955, 55 L.Ed.2d 124 (1978); Cafeteria & Restaurant Workers v. McElroy, 367 U.S., at 895, 81 S.Ct., at 1748. Merely because a statutory expectation exists cannot mean that in addition to the full panoply of due process required to convict and confine there must also be repeated, adversary hearings in order to continue the confinement. However, since the Nebraska Parole Board provides at least one and often two hearings every year to each eligible inmate, we need only consider whether the additional procedures mandated by the Court of Appeals are required under the standards set out in Mathews v. Eldridge, supra, 424 U.S., at 335, 96 S.Ct., at 903, and Morrissey v. Brewer, supra, 408 U.S., at 481, 92 S.Ct., at 2600.
46
Two procedures mandated by the Court of Appeals are particularly challenged by the Board:6 the requirement that a formal hearing be held for every inmate, and the requirement that every adverse parole decision include a statement of the evidence relied upon by the Board.
47
The requirement of a hearing as prescribed by the Court of Appeals in all cases would provide at best a negligible decrease in the risk of error. See D. Stanley, Prisoners Among Us 43 (1976). When the Board defers parole after the initial review hearing, it does so because examination of the inmate's file and the personal interview satisfies it that the inmate is not yet ready for conditional release. The parole determination therefore must include consideration of what the entire record shows up to the time of the sentence, including the gravity of the offense in the particular case. The behavior record of an inmate during confinement is critical in the sense that it reflects the degree to which the inmate is prepared to adjust to parole release. At the Board's initial interview hearing, the inmate is permitted to appear before the Board and present letters and statements on his own behalf. He is thereby provided with an effective opportunity, first, to insure that the records before the Board are in fact the records relating to his case; and, second, to present any special considerations demonstrating why he is an appropriate candidate for parole. Since the decision is one that must be made largely on the basis of the inmate's files, this procedure adequately safeguards against serious risks of error and thus satisfies due process.7 Cf. Richardson v. Perales, 402 U.S. 389, 408, 91 S.Ct. 1420, 1430, 28 L.Ed.2d 842 (1971).
48
Next, we find nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular "evidence" in the inmate's file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The Board communicates the reason for its denial as a guide to the inmate for his future behavior. See Franklin v. Shields, 569 F.2d, at 800 (en banc). To require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board's parole-release determination with a guilt determination. The Nebraska statute contemplates, and experience has shown, that the parole-release decision is, as we noted earlier, essentially an experienced prediction based on a host of variables. See Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash.U.L.Q. 243, 299-300. The Board's decision is much like a sentencing judge's choice—provided by many states—to grant or deny probation following a judgment of guilt, a choice never thought to require more than what Nebraska now provides for the parole-release determination. Cf. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more.
49
Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.8
50
So ordered.
APPENDIX TO OPINION OF THE COURT
51
The statutory factors that the Board is required to take into account in deciding whether or not to grant parole are the following:
52
(a) The offender's personality, including his maturity, stability, sense of responsibility and any apparent development in his personality which may promote or hinder his conformity to law;
53
(b) The adequacy of the offender's parole plan;
54
(c) The offender's ability and readiness to assume obligations and undertake responsibilities;
55
(d) The offender's intelligence and training;
56
(e) The offender's family status and whether he has relatives who display an interest in him or whether he has other close and constructive associations in the community;
57
(f) The offender's employment history, his occupational skills, and the stability of his past employment;
58
(g) The type of residence, neighborhood or community in which the offender plans to live;
59
(h) The offender's past use of narcotics, or past habitual and excessive use of alcohol;
60
(i) The offender's mental or physical makeup, including any disability or handicap which may affect his conformity to law;
61
(j) The offender's prior criminal record, including the nature and circumstances, recency and frequency of previous offenses;
62
(k) The offender's attitude toward law and authority;
63
(l ) The offender's conduct in the facility, including particularly whether he has taken advantage of the opportunities for self-improvement, whether he has been punished for misconduct within six months prior to his hearing or reconsideration for parole release, whether any reductions of term have been forfeited, and whether such reductions have been restored at the time of hearing or reconsideration;
64
(m) The offender's behavior and attitude during any previous experience of probation or parole and the recency of such experience; and (n) Any other factors the board determines to be relevant. Neb.Rev.Stat. § 83-1,114(2) (1976).
65
Mr. Justice POWELL, concurring in part and dissenting in part.
66
I agree with the Court that the respondents have a right under the Fourteenth Amendment to due process in the consideration of their release on parole. I do not believe, however, that the applicability of the Due Process Clause to parole-release determinations depends upon the particular wording of the statute governing the deliberations of the parole board, or that the limited notice of the final hearing currently given by the State is consistent with the requirements of due process.
67
* A substantial liberty from legal restraint is at stake when the State makes decisions regarding parole or probation. Although still subject to limitations not imposed on citizens never convicted of a crime, the parolee enjoys a liberty incomparably greater than whatever minimal freedom of action he may have retained within prison walls, a fact that the Court recognized in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
68
"The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. . . . Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison." Id., at 482, 92 S.Ct. at 2600.
69
Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Ingraham v. Wright, 430 U.S. 651, 673-674, 97 S.Ct. 1401, 1413-1414, 51 L.Ed.2d 711 (1977); Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972). Because this fundamental liberty "is valuable" and "its termination inflicts a 'grievous loss' on the parolee," the Court concluded in Morrissey that the decision to revoke parole must be made in conformity with due process standards. 408 U.S., at 482, 92 S.Ct. at 2600. Similarly in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), we held that a probationer must be accorded due process when a decision is to be made about the continuation of his probation. And the decision to rescind a prisoner's "good-time credits," which directly determine the time at which he will be eligible for parole, also must be reached in compliance with due process requirements. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
70
In principle, it seems to me that the Due Process Clause is no less applicable to the parole-release determination than to the decisions by state agencies at issue in the foregoing cases. Nothing in the Constitution requires a State to provide for probation or parole. But when a State adopts a parole system that applies general standards of eligibility, prisoners justifiably expect that parole will be granted fairly and according to law whenever those standards are met. This is so whether the governing statute states, as here, that parole "shall" be granted unless certain conditions exist, or provides some other standard for making the parole decision. Contrary to the Court's conclusion, ante, at 9-11, I am convinced that the presence of a parole system is sufficient to create a liberty interest, protected by the Constitution, in the parole-release decision.
71
The Court today, however, concludes that parole release and parole revocation "are quite different," because " 'there is a . . . difference between losing what one has and not getting what one wants,' " ante, at 9,10. I am unpersuaded that this difference, if indeed it exists at all, is as significant as the Court implies. Release on parole marks the first time when the severe restrictions imposed on a prisoner's liberty by the prison regimen may be lifted, and his behavior in prison often is molded by his hope and expectation of securing parole at the earliest time permitted by law. Thus, the parole-release determination may be as important to the prisoner as some later, and generally unanticipated, parole-revocation decision. Moreover, whatever difference there may be in the subjective reactions of prisoners and parolees to release and revocation determinations is not dispositive. From the day that he is sentenced in a State with a parole system, a prisoner justifiably expects release on parole when he meets the standards of eligibility applicable within that system. This is true even if denial of release will be a less severe disappointment than revocation of parole once granted.
72
I am unconvinced also by the Court's suggestion that the prisoner has due process rights in the context of parole revocation but not parole release because of the different "nature of the decision that must be made in each case." Ante, at 9. It is true that the parole-revocation determination involves two inquiries: the parole board must ascertain the facts related to the prisoner's behavior on parole, and must then make a judgment whether or not he should be returned to prison. But unless the parole board makes parole release determinations in some arbitrary or random fashion, these subjective evaluations about future success on parole also must be based on retrospective factual findings. See ante, at 14-15. In addition, it seems to me that even if there were any systematic difference between the factual inquiries relevant to release and revocation determinations, this difference, under currently existing parole systems, would be too slight to bear on the existence of a liberty interest protected by the Due Process Clause. It might be relevant, of course, in determining the process to be accorded in each setting.
II
73
The Court correctly concludes, in my view, that the Court of Appeals erred in ordering that a formal hearing be held for every inmate and that every adverse parole decision include a statement of the evidence relied upon by the Board. Ante, at 14-16. The type of hearing afforded by Nebraska comports generously with the requirements of due process, and the report of the Board's decision also seems adequate. Accordingly, I agree that the judgment of the Court of Appeals must be reversed and the case remanded.
74
I do not agree, however, with the Court's decision that the present notice afforded to prisoners scheduled for final hearings (as opposed to initial review hearings) is constitutionally adequate. Id., at 14 n. 6. Under present procedures, a prisoner is told in advance the month during which his final hearing will be held, but is not notified of the exact date of the hearing until the morning of the day that it will occur. Thus, although a prisoner is allowed to "present evidence, call witnesses and be represented by private counsel," ante, at 5, at the final hearing, his ability to do so necessarily is reduced or nullified completely by the State's refusal to give notice of the hearing more than a few hours in advance.
75
The Court's opinion asserts that "[t]here is no claim that . . . the timing of the notice . . . seriously prejudices the inmate's ability to prepare adequately for the hearing." Ante, at 14 n. 6. But the original complaint in this case cited as an alleged denial of due process the State's failure to "inform the [respondents] in advance of the date and time of their hearings before the Board of Parole." The District Court ordered the petitioners to give prisoners notice of hearings at least 72 hours in advance of the hearings, and the Court of Appeals affirmed that order. The respondents have supported that judgment in this Court by arguing that the courts below correctly determined that the current notice procedure undermines the prisoner's ability to present his case adequately at the final review hearing. Brief for Respondents 65. This conclusion accords with common sense, despite the petitioners' comment that prisoners "are seldom gone on vacation or have conflicting appointments on the day their parole hearing is set." Brief for Petitioners 30. It also imposes only a minimal burden on the State. I therefore agree with the decision of the courts below to require the State to give at least three days' notice of final hearings, and I would not require the Court of Appeals to modify this portion of its judgment on remand.
76
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEVENS join, dissenting in part.
77
My disagreement with the Court's opinion extends to both its analysis of respondents' liberty interest and its delineation of the procedures constitutionally required in parole release proceedings. Although it ultimately holds that the Nebraska statutes create a constitutionally protected "expectation of parole," the Court nonetheless rejects the argument that criminal offenders have such an interest whenever a State establishes the possibility of parole. This gratuitous commentary reflects a misapplication of our prior decisions and an unduly narrow view of the liberty protected by the Fourteenth Amendment. Since the Court chooses to address the issue, I must register my opinion that all prisoners potentially eligible for parole have a liberty interest of which they may not be deprived without due process, regardless of the particular statutory language that implements the parole system.
78
The Court further determines that the Nebraska Board of Parole already provides all the process that is constitutionally due. In my view, the Court departs from the analysis adopted in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), and disregards considerations that militate for greater procedural protection. To supplement existing procedures, I would require that the Parole Board give each inmate reasonable notice of hearing dates and the factors to be considered, as well as a written statement of reasons and the essential facts underlying adverse decisions.
79
* A.
80
It is self-evident that all individuals possess a liberty interest in being free from physical restraint. Upon conviction for a crime, of course, an individual may be deprived of this liberty to the extent authorized by penal statutes.1 But when a State enacts a parole system, and creates the possibility of release from incarceration upon satisfaction of certain conditions, it necessarily qualifies that initial deprivation. In my judgment, it is the existence of this system which allows prison inmates to retain their protected interest in securing freedoms available outside prison.2 Because parole release proceedings clearly implicate this retained liberty interest, the Fourteenth Amendment requires that due process be observed, irrespective of the specific provisions in the applicable parole statute.
81
This Court's prior decisions fully support the conclusion that criminal offenders have a liberty interest in securing parole release. In Morrissey v. Brewer, supra, the Court held that all persons released on parole possess such an interest in remaining free from incarceration. Writing for the Court, Mr. Chief Justice BURGER stated that the applicability of due process protections turns "on the extent to which an individual will be 'condemned to suffer grievous loss,' " citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), and on the "nature of the interest." 408 U.S., at 481, 92 S.Ct., at 2600. In assessing the gravity and nature of the loss caused by parole revocation, Morrissey relied on the general proposition that parole release enables an individual "to do a wide range of things open to persons who have never been convicted of any crime." Id., at 482, 92 S.Ct., at 2600.3 Following Morrissey, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), held that individuals on probation also retain a liberty interest which cannot be terminated without due process of law. Nowhere in either opinion did the Court even intimate that the weight or nature of the criminal offender's interest in maintaining his parole release or probation depends upon the specific terms of any statute, for in both cases the Court disregarded the applicable statutory language.4 Rather, this liberty interest derived solely from the existence of a system that permitted criminal offenders to serve their sentences on probation or parole.
82
Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), adopted a similar approach. There, the Court concluded that abrogation of a prisoner's good-time credits implicates his interest in subsequently obtaining release from incarceration. Although the Court recognized that Nebraska was not constitutionally obligated to establish a credit system, by creating "a right to a shortened prison sentence through the accumulation of credits for good behavior," id., at 557, 94 S.Ct., at 2975, the State had allowed inmates to retain a liberty interest that could be terminated only for "serious misbehavior." This liberty interest derived from the existence of a credit system, not from the specific language of the implementing statute, see id., at 555-558, 94 S.Ct., at 2974-2976, as decisions applying Wolff have consistently recognized.5
B
83
A criminal offender's interest in securing release on parole is therefore directly comparable to the liberty interests we recognized in Morrissey, Scarpelli, and Wolff. However, because the Court discerns two distinctions between "parole release and parole revocation," ante, at 9, it refuses to follow these cases here. In my view, the proffered distinctions do not support this departure from precedent.
84
First, the Court finds a difference of constitutional dimension between a deprivation of liberty one has and a denial of liberty one desires. Ibid. While there is obviously some difference, it is not one relevant to the established constitutional inquiry. Whether an individual currently enjoys a particular freedom has no bearing on whether he possesses a protected interest in securing and maintaining that liberty. The Court acknowledged as much in Wolff v. McDonnell, when it held that the loss of good-time credits implicates a liberty interest even though the forfeiture only deprived the prisoner of freedom he expected to obtain sometime hence. See Drayton v. McCall, 584 F.2d 1208, 1219 (CA2 1978). And in other contexts as well, this Court has repeatedly concluded that the Due Process Clause protects liberty interests that individuals do not currently enjoy.6
85
The Court's distinction is equally unrelated to the nature or gravity of the interest affected in parole release proceedings. The nature of a criminal offender's interest depends on the range of freedoms available by virtue of the parole system's existence. On that basis, Morrissey afforded constitutional recognition to a parolee's interest because his freedom on parole includes "many of the core values of unqualified liberty." 408 U.S., at 482, 92 S.Ct., at 2601. This proposition is true regardless of whether the inmate is presently on parole or seeking parole release. As the Court of Appeals for the Second Circuit has recognized, "[w]hether the immediate issue be release or revocation, the stakes are the same: conditional freedom versus incarceration." United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925, 928, vacated as moot sub nom. Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974).
86
The Court's second justification for distinguishing between parole release and parole revocation is based on the "nature of the decision that must be made in each case." Ante, at 9. The majority apparently believes that the interest affected by parole release proceedings is somehow diminished if the administrative decision may turn on "subjective evaluations." Yet the Court nowhere explains why the nature of the decisional process has even the slightest bearing in assessing the nature of the interest that this process may terminate.7 Indeed, the Court's reasoning here is flatly inconsistent with its subsequent holding that respondents do have a protected liberty interest under Nebraska's parole statutes, which require a decision that is "subjective in part and predictive in part." Ante, at 2107. For despite the Parole Board's argument that such an interest exists "only if the statutory conditions for [denying parole are] essentially factual, as in Wolff and Morrissey, rather than predictive," ante, at 12, the Court nonetheless concludes that respondents' interest is sufficient to merit constitutional protection.
87
But even assuming the subjective nature of the decisionmaking process were relevant to due process analysis in general, this consideration does not adequately distinguish the processes of granting and revoking parole. See Morrissey v. Brewer, 408 U.S., at 477-480, 92 S.Ct., at 2598-2600; Gagnon v. Scarpelli, 411 U.S., at 781-782, 93 S.Ct., at 1759-1760. Contrary to the Court's assertion that the decision to revoke parole is predominantly a " 'retrospective factual question,' " ante, at 9, Morrissey recognized that only the first step in the revocation decision can be so characterized. And once it is
88
"determined that the parolee did violate the conditions [of parole, a] second question arise[s]: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. . . . [T]his second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary." 408 U.S., at 479-480, 92 S.Ct., at 2599-2600 (emphasis added).
89
Morrissey thus makes clear that the parole revocation decision includes a decisive subjective component. Moreover, to the extent parole release proceedings hinge on predictive determinations, those assessments are necessarily predicated on findings of fact.8 Accordingly, the presence of subjective considerations is a completely untenable basis for distinguishing the interests at stake here from the liberty interest recognized in Morrissey.
C
90
The Court also concludes that the existence of a parole system by itself creates "no more than a mere hope that the benefit will be obtained," ante, at 11, and thus does not give rise to a liberty interest. This conclusion appears somewhat gratuitous, give the Court's ultimate holding that the Nebraska statutes do generate a "legitimate expectation of [parole] release" which is protected by the Due Process Clause. Ante, at 12. Moreover, it is unclear what purpose can be served by the Court's endeavor to depreciate the expectations arising solely from the existence of a parole system. The parole statutes in many jurisdictions embody the same standards used in the Model Penal Code, upon which both the Nebraska and federal provisions are patterned, and the Court's analysis of the Nebraska statutes would therefore suggest that the other statutes must also create protectible expectation of release.9
91
Furthermore, in light of the role that parole has assumed in the sentencing process, I believe the Court misapplies its own test, see ante, at 11-12, by refusing to acknowledge that inmates have a legitimate expectation of release whenever the government establishes a parole system. As the Court observed in Morrissey :
92
"During the past 60 years, the practice of releasing prisoners on parole before the end of their sentences has become an integral part of the penological system. . . . Rather than being an ad hoc exercise of clemency, parole is an established variation on imprisonment of convicted criminals." 408 U.S., at 477, 92 S.Ct., at 2598.
93
Indeed, the available evidence belies the majority's broad assumptions concerning inmate expectations, at least with respect to the federal system, and there is no suggestion that experience in other jurisdictions is significantly different.10
94
Government statistics reveal that substantially less than one-third of all first-time federal offenders are held in prison until mandatory release.11 In addition, 88% of the judges responding to a recent survey stated that they considered the availability of parole when imposing sentence, and 47% acknowledged their expectation that defendants would be released on parole after serving one-third of their sentences.12 In accord with these views, the Administrative Conference of the United States has advised Congress that courts set maximum sentences anticipating "that a prisoner who demonstrates his desire for rehabilitation will not serve the maximum term or anything approaching the maximum."13 And in discussing the sentencing provisions of the proposed revision of the Federal Criminal Code, S.1437, the Senate Judiciary Committee observed:
95
"A federal judge who today believes that an offender should serve four years in prison may impose a sentence in the vicinity of ten years, knowing that the offender is eligible for parole release after one third of the sentence." S.Rep.No.95-605, p. 1169 (1977).
96
Thus, experience in the federal system has led both judges and legislators to expect that inmates will be paroled substantially before their sentences expire. Insofar as it is critical under the Court's due process analysis, this understanding would certainly justify a similar expectation on the part of the federal inmates. Hence, I believe it is unrealistic for this Court to speculate that the existence of a parole system provides prisoners "no more than a mere hope" of release. Ante, at 11.
II
A.
97
I also cannot subscribe to the Court's assessment of the procedures necessary to safeguard respondents' liberty interest. Although the majority purports to rely on Morrissey v. Brewer and the test enunciated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), its application of these standards is fundamentally deficient in several respects.
98
To begin with, the Court focuses almost exclusively on the likelihood that a particular procedure will significantly reduce the risk of error in parole release proceedings. Ante, at 14-16. Yet Mathews advances three factors to be considered in determining the specific dictates of due process:
99
"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." 424 U.S., at 335, 96 S.Ct., at 903.
100
By ignoring the other two factors set forth in Mathews, the Court skews the inquiry in favor of the Board. For example, the Court does not identify any justification for the Parole Board's refusal to provide inmates with specific advance notice of the hearing date or with a list of factors that may be considered. Nor does the Board demonstrate that it would be unduly burdensome to provide a brief summary of the evidence justifying the denial of parole. To be sure, these measures may cause some inconvenience, but "the Constitution recognizes higher values than speed and efficiency." Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972); accord, Frontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973); Bell v. Burson, 402 U.S. 535, 540-541, 91 S.Ct. 1586, 1589-1591, 29 L.Ed.2d 90 (1971). Similarly lacking in the Court's analysis is any recognition of the private interest affected by the Board's action. Certainly the interest in being released from incarceration is of sufficient magnitude to have some bearing on the process due.14
101
The second fundamental flaw in the Court's analysis is that it incorrectly evaluates the only factor actually discussed. The contribution that additional safeguards will make to reaching an accurate decision necessarily depends on the risk of error inherent in existing procedures. See Mathews v. Eldridge, supra, 424 U.S., at 334-335, 343-347, 96 S.Ct., at 902-903, 907-909. Here, the Court finds supplemental procedures to be inappropriate because it assumes existing procedures adequately reduce the likelihood that an inmate's files will contain incorrect information which could lead to an erroneous decision. No support is cited for this assumption, and the record affords none. In fact, researchers and courts have discovered many substantial inaccuracies in inmate files, and evidence in the instant case revealed similar errors.15 Both the District Court and the Court of Appeals found additional procedures necessary to decrease the margin of error in Nebraska's parole release proceedings. Particularly since the Nebraska statutes tie the parole decision to a number of highly specific factual inquiries, see ante, at 16-18, I see no basis in the record for rejecting the lower courts' conclusion.
102
Finally, apart from avoiding the risk of actual error, this Court has stressed the importance of adopting procedures that preserve the appearance of fairness and the confidence of inmates in the decisionmaking process. The Chief Justice recognized in Morrissey that "fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness," 408 U.S., at 484, 92 S.Ct., at 2602 (citation omitted), a view shared by legislators, courts, the American Bar Association, and other commentators.16 This consideration is equally significant whether liberty interests are extinguished in parole release or parole revocation proceedings. As Mr. Justice Frankfurter argued in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S., at 171-172, 71 S.Ct., at 649 (concurring opinion):
103
"The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done."
104
In my judgment, the need to assure the appearance, as well as the existence, of fairness supports a requirement that the Parole Board advise inmates of the specific dates for their hearings, the criteria to be applied, and the reasons and essential facts underlying adverse decisions. For " '[o]ne can imagine nothing more cruel, inhuman, and frustrating than serving a prison term without knowledge of what will be measured and the rules determining whether one is ready for release.' " K. Davis, Discretionary Justice: A Preliminary Inquiry 132 (1969).
B
105
Applying the analysis of Morrissey and Mathews, I believe substantially more procedural protection is necessary in parole release proceedings than the Court requires. The types of safeguards that should be addressed here, however, are limited by the posture of this case.17 Thus, only three specific issues need be considered.
106
While the question is close, I agree with the majority that a formal hearing is not always required when an inmate first becomes eligible for discretionary parole. Ante, at 14-15. The Parole Board conducts an initial parole review hearing once a year for every inmate, even before the inmate is eligible for release. Although the scope of this hearing is limited, inmates are allowed to appear and present letters or statements supporting their case. If the Board concludes that an eligible inmate is a good candidate for release, it schedules a final and substantially more formal hearing.
107
The Court of Appeals directed the Parole Board to conduct such a formal hearing as soon as an inmate becomes eligible for parole, even where the likelihood of a favorable decision is negligible, but the court required no hearing thereafter. 576 F.2d 1274, 1285 (CA8 1978). From a practical standpoint, this relief offers no appreciable advantage to the inmates. If the Board would not have conducted a final hearing under current procedures, inmates gain little from a requirement that such a hearing be held, since the evidence almost certainly would be insufficient to justify granting release. And because the Court of Appeals required the Board to conduct only one hearing, inmates risk losing the right to a formal proceeding at the very point additional safeguards may have a beneficial impact. The inmates' interest in this modification of the Board's procedures is thus relatively slight.18 Yet the burden imposed on the Parole Board by the additional formal hearings would be substantial. Accordingly, I believe the Board's current practice of combining both formal and informal hearings is constitutionally sufficient.
108
However, a different conclusion is warranted with respect to the hearing notices given inmates. The Board currently informs inmates only that it will conduct an initial review or final parole hearing during a particular month within the next year. The notice does not specify the day or hour of the hearing. Instead, inmates must check a designated bulletin board each morning to see if their hearing is scheduled for that day. In addition, the Board refuses to advise inmates of the criteria relevant in parole release proceedings, despite a state statute expressly listing 14 factors the Board must consider and 4 permissible reasons for denying parole. See Neb.Rev.Stat. § 83-1,114 (1976), quoted ante, at 11, 16-18.
109
Finding these procedures insufficient, the District Court and the Court of Appeals ordered that each inmate receive written advance notice of the time set for his hearing, along with a list of factors the Board may consider. 576 F.2d, at 1285.19 Although the Board has proffered no justification for refusing to institute these procedures, id. at 1283, the Court sets aside the relief ordered below on the ground that "[t]here is no claim that either the timing of the notice or its substance seriously prejudices the inmate's ability to prepare adequately for the hearing." Ante, at 14 n. 6. But respondents plainly have contended throughout this litigation that reasonable advance notice is necessary to enable them to organize their evidence, call the witnesses permitted by the Board, and notify private counsel allowed to participate in the hearing, see Brief for Respondents 65-66; Answer Brief for Appellee Inmates in No. 77-1889 (CA8), pp. 6, 8-9, 25, 28; Trial Brief for Inmates in Civ. 72-L-335 (Neb.), at pp. 17-18; and the courts below obviously agreed. See 576 F.2d, at 1283; Mem. Op. in Civ. 72-L-335 (Neb., Oct. 21, 1977), App. to Pet. for Cert. 25, 39, 45-47. Given the significant private interests at stake, and the importance of reasonable notice in preserving the appearance of fairness, I see no reason to depart here from this Court's longstanding recognition that adequate notice is a fundamental requirement of due process, e. g., Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 13, 98 S.Ct. 1554, 1562, 56 L.Ed.2d 30 (1978); Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), a principle heretofore found equally applicable in the present context. Wolff v. McDonnell, 418 U.S., at 563-564, 94 S.Ct., at 2978-2979; Gagnon v. Scarpelli, 411 U.S., at 786, 93 S.Ct., at 1761; Morrissey v. Brewer, 408 U.S., at 486-487, 489, 92 S.Ct., at 2602-2603, 2604.
110
Finally, I would require the Board to provide a statement of the crucial evidence on which it relies in denying parole.20 At present, the Parole Board merely uses a form letter noting the general reasons for its decision. In ordering the Board to furnish as well a summary of the essential facts underlying the denial, the Court of Appeals made clear that " 'detailed findings of fact are not required.' " 576 F.2d, at 1284. The majority here, however, believes even this relief to be unwarranted, because it might render parole proceedings more adversary and equate unfavorable decisions with a determination of guilt. Ante, at 15-16.
111
The Court nowhere explains how these particular considerations are relevant to the inquiry required by Morrissey and Mathews. Moreover, it is difficult to believe that subsequently disclosing the factual justification for a decision will render the proceeding more adversarial, especially when the Board already provides a general statement of reasons.21 And to the extent unfavorable parole decisions resemble a determination of guilt, the Board has no legitimate interest in concealing from an inmate the conduct or failings of which he purportedly is guilty.
112
While requiring a summation of the essential evidence might entail some administrative inconvenience, in neither Morrissey v. Brewer, supra, 408 U.S., at 489, 92 S.Ct., at 2604; Gagnon v. Scarpelli, supra, 411 U.S., at 786, 93 S.Ct., at 1761; nor Wolff v. McDonnell, supra, 418 U.S., at 563, 564-565, 94 S.Ct., at 2978, 2978-2979, did the Court find that this factor justified denying a written statement of the essential evidence and the reasons underlying a decision. It simply is not unduly
113
"burdensome to give reasons when reasons exist. Whenever an application . . . is denied . . . there should be some reason for the decision. It can scarcely be argued that government would be crippled by a requirement that the reason be communicated to the person most directly affected by the government's action." Board of Regents v. Roth, 408 U.S. 564, 591, 92 S.Ct. 2701, 2716, 33 L.Ed.2d 548 (1972) (MARSHALL, J., dissenting).
114
See Mathews v. Eldridge, 424 U.S., at 345-346, 96 S.Ct., at 907-908; SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). And an inability to provide any reasons suggests that the decision is, in fact, arbitrary.22
115
Moreover, considerations identified in Morrissey and Mathews militate in favor of requiring a statement of the essential evidence. Such a requirement would direct the Board's focus to the relevant statutory criteria and promote more careful consideration of the evidence. It would also enable inmates to detect and correct inaccuracies that could have a decisive impact.23 And the obligation to justify a decision publicly would provide the assurance, critical to the appearance of fairness, that the Board's decision is not capricious. Finally, imposition of this obligation would afford inmates instruction on the measures needed to improve their prison behavior and prospects for parole, a consequence surely consistent with rehabilitative goals.24 Balancing these considerations against the Board's minimal interest in avoiding this procedure, I am convinced that the Fourteenth Amendment requires the Parole Board to provide inmates a statement of the essential evidence as well as a meaningful explanation of the reasons for denying parole release.25
116
Because the Court's opinion both depreciates inmates' fundamental liberty interest in securing parole release and sanctions denial of the most rudimentary due process protection, I respectfully dissent.
1
The statute defines the scope of the initial review hearing as follows:
"Such review shall include the circumstances of the offender's offense, the presentence investigation report, his previous social history and criminal record, his conduct, employment, and attitude during commitment, and the reports of such physical and mental examinations as have been made. The board shall meet with such offender and counsel him concerning his progress and his prospects for future parole, . . ." Neb.Rev.Stat. § 83-192(9) (1976).
2
Apparently, over a 23-month period, there were eight cases with letters of denial that did not include a statement of reasons for the denial. A representative of the Board of Parole testified at trial that these were departures from standard practice. There is nothing to indicate that these inmates could not have received a statement if they had requested one or that a direct challenge to this departure from the statute would not have produced relief. See Neb.Rev.Stat. § 25-1901, et seq. (1975).
3
These are the traditional justifications advanced to support the adoption of a system of parole. See generally A. von Hirsch & K. Hanrahan, Abolish Parole? 3 (1978); N. Morris, The Future of Imprisonment 47 (1974); J. Wilson, Thinking About Crime 171 (1975); D. Stanley, Prisoners Among Us 59, 76 (1976); Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash.U.L.Q. 243, 249.
4
See Stanley, supra n. 3, at 50-55; Dawson, supra n. 3, at 287-288.
5
The statute also provides a list of 14 explicit factors and one catchall factor that the Board is obligated to consider in reaching a decision. Neb.Rev.Stat. §§ 83-1,114(2)(a)-(n) (1976). See Appendix to this opinion.
6
The Board also objects to the Court of Appeals' order that it provide written notice reasonably in advance of the hearing together with a list of factors that might be considered. At present the Board informs the inmate in advance of the month during which the hearing will be held, thereby allowing time to secure letters or statements; on the day of the hearing it posts notice of the exact time. There is no claim that either the timing of the notice or its substance seriously prejudices the inmate's ability to prepare adequately for the hearing. The present notice is constitutionally adequate.
7
The only other possible risk of error is that relevant adverse factual information in the inmate's file is wholly inaccurate. But the Board has discretion to make available to the inmate any information "[w]henever the board determines that it will facilitate the parole hearing." Neb.Rev.Stat. § 83-1,112(1) (1976). Apparently the inmates are satisfied with the way this provision is administered since there is no issue before us regarding access to their files.
8
The Court of Appeals in its order required the Board to permit all inmates to appear and present documentary support for parole. Since both of these requirements were being complied with prior to this litigation, the Board did not seek review of those parts of the court's order and the validity of those requirements is not before us. The Court of Appeals also held that due process did not provide a right to cross-examine adverse witnesses or a right to present favorable witnesses. The practice of taping the hearings also was declared adequate. Those issues are not before us and we express no opinion on them.
1
A criminal conviction cannot, however, terminate all liberty interests. Wolff v. McDonnell, 418 U.S. 539, 555-556, 94 S.Ct. 2963, 2974-2975, 41 L.Ed.2d 935 (1974); see, e. g., Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 54 L.Ed.2d 24 (1978); Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). See also Carmona v. Ward, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 58 (1979) (MARSHALL, J., dissenting).
2
See Bell v. Wolfish, 441 U.S. 520, 568-571, 99 S.Ct. 1861, 1889-1891, 60 L.Ed.2d 447 (1979) (MARSHALL, J., dissenting); id., at 580-584, 99 S.Ct., at 1895-1898 (STEVENS, J., dissenting); Leis v. Flynt, 439 U.S. 438, 448-453, 99 S.Ct. 698, 703-706, 58 L.Ed.2d 717 (1979) (STEVENS, J., dissenting); Meachum v. Fano, 427 U.S. 215, 230, 96 S.Ct. 2532, 2541, 49 L.Ed.2d 451 (1976) (STEVENS, J., dissenting); cf. Bell v. Wolfish, supra, 441 U.S., at 535-536, 545, 99 S.Ct., at 1872, 1877. See generally Smith v. Organization of Foster Families, 431 U.S. 816, 842-847, 97 S.Ct. 2094, 2109-2112, 53 L.Ed.2d 14 (1977).
3
Because parolees' enjoyment of these freedoms was subject to a number of restrictions, the Court characterized their liberty interest as "conditional." See 408 U.S., at 480, 92 S.Ct., at 2599. The risk that violation of those conditions could lead to termination of parole status, however, did not diminish the significance of the parolees' interest, since the Due Process Clause anticipates that most liberty interests may be abrogated under proper circumstances. So, too, here, respondents' interest does not forfeit constitutional protection simply because their freedom would also be subject to conditions or because of the possibility that the Nebraska Parole Board will deny release after providing due process of law.
4
The state law in Morrissey, quoted only in the dissenting opinion, provided that " '[a]ll paroled prisoners . . . shall be subject, at any time, to be taken into custody and returned to the institution . . . .' " 408 U.S., at 493 n. 2, 92 S.Ct., at 2606 n. 2 (Douglas, J., dissenting in part). The statute specified no other criteria for parole revocation. Thus, had the Court relied solely on particular statutory language, it could not have held that parolees possess a constitutionally protected interest in continuing their status. In Scarpelli, the Court completely ignored the pertinent statutory language. See 411 U.S., at 781-782, 93 S.Ct., at 1759-1760.
5
Cf. Baxter v. Palmigiano, 425 U.S. 308, 323-324, 96 S.Ct. 1551, 1560, 47 L.Ed.2d 810 (1976). Lower courts have understood Wolff to require due process safeguards whenever good-time credits are revoked, and have not focused on the language of various statutory provisions. See, e. g., Franklin v. Shields, 569 F.2d 784, 788-790, 800-801 (CA4) (en banc), cert. denied, 435 U.S. 1003, 98 S.Ct. 1659, 56 L.Ed.2d 92 (1978); United States ex rel. Larkins v. Oswald, 510 F.2d 583 (CA2 1975); Gomes v. Travisono, 510 F.2d 537 (CA1 1974); Willis v. Ciccone, 506 F.2d 1011, 1017 (CA8 1974); Workman v. Mitchell, 502 F.2d 1201 (CA9 1974). See also United States ex rel. Miller v. Twomey, 479 F.2d 701, 712-713 (CA7 1973) (Stevens, J.), cert. denied sub nom. Gutierrez v. Department of Public Safety of Ill., 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974).
Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), signals no departure from the basic principles recognized in Morrissey, Gagnon, and Wolff. While the majority in Meachum concluded that the prisoners did not have a protected liberty interest in avoiding transfers between penal institutions, the Court's opinion rested on the absence of any limitation on such transfers rather than on particular statutory language. 427 U.S., at 225-228, 96 S.Ct., at 2538-2540. See Tracy v. Salamack, 572 F.2d 393, 395 n. 9 (CA2 1978); Four Certain Unnamed Inmates v. Hall, 550 F.2d 1291, 1292 (CA1 1977).
6
See, e. g., Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955); Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926).
The Second Circuit has characterized the attempt to differentiate between a liberty interest currently enjoyed but subject to termination, and an interest that can be enjoyed in the future following an administrative proceeding, as actually "nothing more than a reincarnation of the right-privilege dichotomy in a not-too-deceptive disguise." United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925, 927-928, n. 2, vacated as moot sub nom. Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974), construing United States ex rel. Bey v. Connecticut Board of Parole, 443 F.2d 1079, 1086 (CA2 1971), which the Court quotes ante, at 10; see Comment, The Parole System, 120 U.Pa.L.Rev. 282, 363 (1971).
7
Government decisionmakers do not gain a "license for arbitrary procedure" when legislators confer a "substantial degree of discretion" regarding the assessment of subjective considerations. Kent v. United States, 383 U.S. 541, 553, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84 (1966); see Thorpe v. Housing Authority of City of Durham, 386 U.S. 670, 678, 87 S.Ct. 1244, 1248, 18 L.Ed.2d 394 (1967) (Douglas, J., concurring).
8
See Franklin v. Shields, 569 F.2d, at 791; Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash.U.L.Q. 243, 248-285; cf. Morrissey v. Brewer, 408 U.S., at 479-480, 92 S.Ct., at 2599-2600. The Nebraska statutes, in particular, demonstrate the factual nature of the parole release inquiry. One provision, quoted ante, at 16-18, enumerates factual considerations such as the inmate's intelligence, family status, and employment history, which bear upon the four predictive determinations underlying the ultimate parole decision. See ante, at 11.
9
The parole statutes of 47 States establish particular standards, criteria or factors to be applied in parole release determinations. A list of these statutes is set out in the Brief for Jerome N. Frank Legal Services Organization et al. as Amici Curiae 30-31, 23a-26a. These criteria presumably will be a significant source of inmates' "legitimate expectations" regarding the availability of parole. Expectations would also be shaped by the role that parole actually assumes in a jurisdiction's penological system, see infra, at 30-31. It is in these respects that most parole statutes are similar. While there are some differences in statutory language among jurisdictions, it is unrealistic to believe that variations such as the use of "may" rather than "shall," see ante, at 11-12, could negate the expectations derived from experience with a parole system and the enumerated criteria for granting release.
10
The New York State Parole Board, for example, granted parole in 75.4% of the cases it considered during 1972. See United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d, at 928. In addition, recent studies show that parole is the method of release for approximately 70% of all criminal offenders returned each year to the community. Uniform Parole Reports, Parole in the United States: 1976 and 1977, p. 55 (1978). In some States, the figure is as high as 97%. See Kastenmeier & Eglit, Parole Release Decision-Making: Rehabilitation, Expertise, and the Demise of Mythology, 22 Am.U.L.Rev. 477, 481-482 (1973).
11
See Brief for United States in United States v. Addonizio, O.T. 1978, No. 78-156, p. 55 n. 47.
12
Project, Parole Release Decisionmaking and the Sentencing Process, 84 Yale L.J. 810, 882 n. 361 (1975).
13
Hearings on H.R.1598 and Identical Bills before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 93d Cong., 1st Sess., 163-164, 193 (1973) (testimony and statement of Antonin Scalia, Chairman of the Administrative Conference of the United States).
14
While the severity of a loss does not of itself establish that an interest deserves constitutional protection, this factor does weigh heavily in determining the procedural safeguards mandated by the Fourteenth Amendment. See Goss v. Lopez, 419 U.S. 565, 575-576, 95 S.Ct. 729, 736-737, 42 L.Ed.2d 725 (1975); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
15
In this case, for example, the form notifying one inmate that parole had been denied indicated that the Board believed he should enlist in a self-improvement program at the prison. But in fact, the inmate was already participating in all such programs available. Tr. 38-39. Such errors in parole files are not unusual. E. g., Kohlman v. Norton, 380 F.Supp. 1073 (D.Conn.1974) (parole denied because file erroneously indicated that applicant had used gun in committing robbery); Leonard v. Mississippi State Probation and Parole Board, 373 F.Supp. 699 (ND Miss.1974), rev'd, 509 F.2d 820 (CA5), cert. denied, 423 U.S. 998, 96 S.Ct. 428, 46 L.Ed.2d 373 (1975) (prisoner denied parole on basis of illegal disciplinary action); In re Rodriguez, 14 Cal.3d 639, 122 Cal.Rptr. 552, 537 P.2d 384 (1975) (factually incorrect material in file led parole officers to believe that prisoner had violent tendencies and that his "family reject[ed] him"); State v. Pohlabel, 61 N.J.Super. 242, 160 A.2d 647 (1960) (files erroneously showed that prisoner was under a life sentence in another jurisdiction); Hearings on H.R. 13118 et al. before Subcommittee No. 3 of the House Judiciary Committee, 92d Cong., 2d Sess., pt. VII-A, p. 451 (1972) (testimony of Dr. Willard Gaylin: "I have seen black men listed as white and Harvard graduates listed with borderline IQ's"); S. Singer & D. Gottfredson, Development of a Data Base for Parole Decision-Making 2-5 (NCCD Research Center, Supp. Report 1, 1973) (information provided by FBI often lists same charge six or seven times without showing a final disposition).
16
See, e. g., S.Rep. No. 94-369, p. 19 (1975) ("It is essential, then, that parole has both the fact and appearance of fairness to all. Nothing less is necessary for the maintenance of the integrity of our criminal justice institutions"); United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d, at 928; Phillips v. Williams, 583 P.2d 488, 490 (Okl.1978), cert. pending, No. 78-1282; ABA, Standards Relating to the Legal Status of Prisoners (Tent.Draft 1977), in 14 Am.Crim.L.Rev. 377, 598 (1977); K. Davis, Discretionary Justice: A Preliminary Inquiry 126-133 (1969); Official Report of the New York State Special Commission on Attica 97, 98 (Bantam ed. 1972).
17
In accordance with the majority opinion, ante, at 16 n. 8, I do not address whether the Court of Appeals was correct in holding that the Nebraska Parole Board may not abandon the procedures it already provides. These safeguards include permitting inmates to appear and present documentary support at hearings, and providing a statement of reasons when parole is denied or deferred. Because the inmates failed to seek review of the Court of Appeals' decision, I also express no view on whether it correctly held that the Board's practice of allowing inmates to present witnesses and retain counsel for final parole hearings was not constitutionally compelled. Finally, it would be inappropriate to consider the suggestion advanced here for the first time that inmates should be allowed access to their files in order to correct factual inaccuracies. Cf. ante, at 15 n. 7.
Nevertheless, the range of protections currently afforded does affect whether additional procedures are constitutionally compelled. The specific dictates of due process, of course, depend on what a particular situation demands. See Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). Nebraska's use of formal hearings when the possibility of granting parole is substantial and informal hearings in other cases, for example, combined with provision of a statement of reasons for adverse decisions, obviously reduces the need for supplemental procedures.
18
Although a formal hearing at the point of initial eligibility would reduce the risk of error and enhance the appearance of fairness, providing a summary of essential evidence and reasons, see n. 25, infra, together with allowing inmates to appear at informal hearings, decreases the justification for requiring the Board to conduct formal hearings in every case. See n. 17, supra.
19
The courts below found that 72 hours' advance notice ordinarily would enable prisoners to prepare for their appearances. 576 F.2d, at 1283. The Court of Appeals further determined that the statutory criteria were sufficiently specific that the Board need only include a list of those criteria with the hearing notices or post such a list in public areas throughout the institution. Ibid.
20
Every other Court of Appeals holding the Due Process Clause applicable to parole release proceedings has also concluded that the parole board must advise the inmates in writing of the reasons for denying parole. See Franklin v. Shields, 569 F.2d 784, at 800-801 (en banc); United States ex rel. Richerson v. Wolff, 525 F.2d 797 (CA7 1975), cert. denied, 425 U.S. 914, 96 S.Ct. 1511, 47 L.Ed.2d 764 (1976); Childs v. United States Board of Parole, 167 U.S.App.D.C. 268, 511 F.2d 1270 (1974); United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925 (CA2), vacated as moot, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974). The parties to Franklin v. Shields did not request that the Parole Board also be required to provide a summary of the essential facts, see 569 F.2d, at 787, 797, and the Fourth Circuit did not address the issue. The Second Circuit in Johnson expressly held that the statement of reasons must be supplemented by a summary of the "essential facts upon which the Board's inferences are based." 500 F.2d, at 934. Richerson and Childs also indicated that the notice of reasons should include a description of the crucial facts. See 525 F.2d, at 804; 167 U.S.App.D.C., at 279-282, 511 F.2d, at 1281-1284, aff'g 371 F.Supp. 1246, 1247 (1973).
21
Contrary to its supposition here, in Wolff v. McDonnell, 418 U.S., at 565, 94 S.Ct., at 2979, the Court could perceive no "prospect of prison disruption that can flow from the requirement of these statements."
22
See Hirschkop & Millemann, The Unconstitutionality of Prison Life, 55 Va.L.Rev. 795, 811-812, 839 (1969).
23
The preprinted list of reasons for denying parole is unlikely to disclose these types of factual errors. Out of 375 inmates denied parole during a 6-month period, the only reason given 285 of them was: "Your continued correctional treatment, vocational, educational, or job assignment in the facility will substantially enhance your capacity to lead a law-abiding life when released at a later date." App. 40-42. Although the denial forms also include a list of six "[r]ecommendations for correcting deficiencies," such as "[e]xhibit some responsibility and maturity," the evidence at trial showed that all six items were checked on 370 of the 375 forms, regardless of the facts of the particular case. App. 42; Tr. 38-39, 45-46.
24
See, e. g., cases cited in n. 20, supra; Candarini v. Attorney General of United States, 369 F.Supp. 1132, 1137 (EDNY 1974); Monks v. New Jersey State Parole Board, 58 N.J. 238, 277 A.2d 193, 199 (1971); K. Davis, Discretionary Justice: A Preliminary Inquiry 126-133 (1969); M. Frankel, Criminal Sentences 40-41 (1972); Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash.U.L.Q. 243, 302; Comment, 6 St. Mary's L.J. 478, 487 (1974).
25
This statement of reasons and the summary of essential evidence should be provided to all inmates actually eligible for parole, whether the adverse decision is rendered following an initial review or a final parole hearing.
| 34
|
442 U.S. 95
99 S.Ct. 2150
60 L.Ed.2d 738
Roosevelt GREEN, Jr.v.State of GEORGIA.
No. 78-5944.
May 29, 1979.
PER CURIAM.
1
Petitioner and Carzell Moore were indicted together for the rape and murder of Teresa Carol Allen. Moore was tried separately, was convicted of both crimes, and has been sentenced to death. See Moore v. State, 240 Ga. 807, 243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 249 (1978). Petitioner subsequently was convicted of murder, and also received a capital sentence. The Supreme Court of Georgia upheld the conviction and sentence, 242 Ga. 261, 249 S.E.2d 1 (1978), and petitioner has sought review of so much of the judgment as affirmed the capital sentence. We grant the motion for leave to proceed in forma pauperis and the petition for certiorari and vacate the sentence.
2
The evidence at trial tended to show that petitioner and Moore abducted Allen from the store where she was working alone and, acting either in concert or separately, raped and murdered her. After the jury determined that petitioner was guilty of murder, a second trial was held to decide whether capital punishment would be imposed. See Ga.Code § 27-2503 (1978). At this second proceeding, petitioner sought to prove he was not present when Allen was killed and had not participated in her death. He attempted to introduce the testimony of Thomas Pasby, who had testified for the State at Moore's trial. According to Pasby, Moore had confided to him that he had killed Allen, shooting her twice after ordering petitioner to run an errand. The trial court refused to allow introduction of this evidence, ruling that Pasby's testimony constituted hearsay that was inadmissible under Ga.Code § 38-301 (1978).1 The State then argued to the jury that in the absence of direct evidence as to the circumstances of the crime, it could infer that petitioner participated directly in Allen's murder from the fact that more than one bullet was fired into her body.2 Regardless of whether the proffered testimony comes within Georgia's hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, see Lockett v. Ohio, 438 U.S. 586, 604-605, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (1978) (plurality opinion); id., at 613-616, 98 S.Ct., at 2969-2970 (opinion of BLACKMUN, J.), and substantial reasons existed to assume its reliability. Moore made his statement spontaneously to a close friend. The evidence corroborating the confession was ample, and indeed sufficient to procure a conviction of Moore and a capital sentence. The statement was against interest, and there was no reason to believe that Moore had any ulterior motive in making it. Perhaps most important, the State considered the testimony sufficiently reliable to use it against Moore, and to base a sentence of death upon it.3 In these unique circumstances, "the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973).4 Because the exclusion of Pasby's testimony denied petitioner a fair trial on the issue of punishment, the sentence is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
3
Reversed and remanded.
4
Mr. Justice BRENNAN and Mr. Justice MARSHALL, adhering to their view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 231, 96 S.Ct. 2909, 2950, 2973, 49 L.Ed.2d 859 (1976), would vacate the death sentence without remanding for further proceedings.
5
Mr. Justice REHNQUIST, dissenting.
6
The Court today takes another step toward embalming the law of evidence in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. I think it impossible to find any justification in the Constitution for today's ruling, and take comfort only from the fact that since this is a capital case, it is perhaps an example of the maxim that "hard cases make bad law."
7
The Georgia trial court refused to allow in evidence certain testimony at petitioner's sentencing trial on the ground that it constituted inadmissible hearsay under Ga.Code § 38-301 (1978). This Court does not, and could not, dispute the propriety of that ruling. Instead, it marshals a number of ad hoc reasons why Georgia should adopt a code of evidence that would allow this particular testimony to be admitted, and concludes that "[i]n these unique circumstances, 'the hearsay rule may not be applied mechanistically to defeat the ends of justice.' " Ante, at 97.
8
Nothing in the United States Constitution gives this Court any authority to supersede a State's code of evidence because its application in a particular situation would defeat what this Court conceives to be "the ends of justice." The Court does not disagree that the testimony at issue is hearsay or that it fails to come within any of the exceptions to the hearsay rule provided by Georgia's rules of evidence. The Court obviously is troubled by the fact that the same testimony was admissible at the separate trial of petitioner's codefendant at the behest of the State. But this fact by no means demonstrates that the Georgia courts have not evenhandedly applied their code of evidence, with its various hearsay exceptions, so as to deny petitioner a fair trial. No practicing lawyer can have failed to note that Georgia's evidentiary rules, like those of every other State and of the United States, are such that certain items of evidence may be introduced by one party, but not by another. This is a fact of trial life, embodied throughout the hearsay rule and its exceptions. This being the case, the United States Constitution must be strained to or beyond the breaking point to conclude that all capital defendants who are unable to introduce all of the evidence which they seek to admit are denied a fair trial. I therefore dissent from the vacation of petitioner's sentence.
1
Georgia recognizes an exception to the hearsay rule for declarations against pecuniary interest, but not for declarations against penal interest. See 242 Ga. 261, 269-272, 249 S.E.2d 1, 8-9 (1978), quoting Little v. Stynchcombe, 227 Ga. 311, 180 S.E.2d 541 (1971).
2
The District Attorney stated to the jury:
"We couldn't possibly bring any evidence other than the circumstantial evidence and the direct evidence that we had pointing to who did it, and I think it's especially significant for you to remember what Dr. Dawson said in this case. When the first shot, in his medical opinion, he stated that Miss Allen had positive blood pressure when both shots were fired but I don't know whether Carzell Moore fired the first shot and handed the gun to Roosevelt Green and he fired the second shot or whether it was vice versa or whether Roosevelt Green had the gun and fired the shot or Carzell Moore had the gun and fired the first shot or the second, but I think it can be reasonably stated that you Ladies and Gentlemen can believe that each one of them fired the shots so that they would be as equally involved and one did not exceed the other's part in the commission of this crime." Pet. for Cert. 10.
3
A confession to a crime is not considered hearsay under Georgia law when admitted against a declarant. Ga.Code § 38-414 (1978); Green v. State, 115 Ga.App. 685, 155 S.E.2d 655 (1967).
4
See Western, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 592-593 (1978).
| 01
|
442 U.S. 42
99 S.Ct. 2121
60 L.Ed.2d 698
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al., Petitioners,v.Leroy FOUST.
No. 78-38.
Argued Feb. 26, 1979.
Decided May 29, 1979.
Syllabus
ondent was discharged by his employer, the Union Pacific Railroad Co., for failing properly to request an extension of his medical leave of absence. Petitioner union filed a grievance on respondent's behalf two days after the time for submission had expired. The National Railroad Adjustment Board denied respondent's claim on the ground that the union had not complied with the filing deadline. Respondent then brought an unfair representation suit against the union. A jury found for respondent, awarding him actual and punitive damages. The Court of Appeals affirmed in most respects, but remanded the case for consideration of whether the punitive damages award was excessive.
Held : The Railway Labor Act does not permit an employee to recover punitive damages for a union's breach of its duty of fair representation in processing an employee's grievance against his employer for wrongful discharge. Pp. 46-52.
(a) Since Congress has not specified what remedies are available in unfair representation actions, this Court's function is to implement a remedial scheme that will best effectuate the purposes of the Railway Labor Act, recognizing that the overarching legislative goal is to facilitate collective bargaining and to achieve industrial peace. P. 47-48.
(b) The fundamental purpose of unfair representation suits is to compensate for injuries caused by violations of employees' rights. To permit punitive damages, which, by definition, provide monetary relief in excess of actual loss, could impair the financial stability of unions and unsettle the careful balance of individual and collective interests which this Court has struck in the unfair representation area. Additionally, the prospect of punitive damages could curtail the broad discretion afforded unions in handling grievances and thereby inhibit the proper functioning of the collective-bargaining system. Inflicting such risks on employees, whose welfare depends on the strength of their unions, is too great a price for whatever deterrent effect punitive damages may have. Pp. 48-52.
10 Cir., 572 F.2d 710, reversed in part.
Laurence J. Cohen, Washington, D. C., for petitioners.
Terry W. Mackey, Cheyenne, Wyo., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This action arises from the failure of petitioner union properly to process respondent's grievance alleging wrongful discharge by his employer. The question presented is whether the Railway Labor Act1 permits an employee to recover punitive damages for such a breach of a union's duty of fair representation.
2
* Respondent, a member of the International Brotherhood of Electrical Workers (IBEW), was injured in March 1970 while working for the Union Pacific Railroad Co. (Union Pacific). He received a medical leave of absence through December 22, 1970. The collective-bargaining agreement between the union and the company required that employees either request an extension before their leave expired or return to work as scheduled. Accordingly, respondent sought to renew his leave in late December. Correspondence between Union Pacific and respondent's attorney, however, revealed that the company had not received a doctor's statement supporting respondent's request. Notwithstanding Union Pacific's written assurance on January 25, 1971, that it would await arrival of this document before reviewing respondent's case, respondent was discharged on February 3 because, in the company's view, he had not properly requested an extension.
3
After respondent's attorney failed to persuade Union Pacific to reconsider its decision, he wrote the IBEW District Chairman, D. F. Jones, requesting that the union initiate grievance proceedings on respondent's behalf pursuant to Rule 21 of the collective-bargaining agreement.2 The letter was dated March 26, and was received by Jones on March 27, 52 days after the dismissal. Although Jones was aware that Rule 21 required presentation of grievances "within 60 days from the date of the occurrence on which the claim . . . is based," see n. 2, supra, and that this deadline was imminent, he did not immediately prepare a grievance letter. Rather, he contacted the IBEW General Chairman, Leo Wisniski, who insisted that respondent personally request in writing the union's assistance. Wisniski drafted a letter stating that the union could not "handle" the claim until such an authorization was received. App. to Brief for Respondent 8a. Instead of telephoning respondent or sending the letter directly to him, Wisniski mailed the letter to Jones, who then signed and forwarded it to respondent on April 5, 61 days after the discharge. Without awaiting the requested written authorization, Jones filed respondent's claim with Union Pacific on April 6, two days after the time for submission had expired. The claim form had been prepared by Wisniski in Omaha, Neb., sent to Jones in Rawlins, Wyo., and then mailed by Jones to the railroad in Omaha.
4
Both Union Pacific and the National Railroad Adjustment Board denied respondent's claim on the ground that IBEW had not complied with the 60-day filing deadline. Respondent then brought this suit against the union and several of its officers.3 He alleged that by filing the grievance out of time, the union had breached its duty of fair representation, which resulted in dismissal of his wrongful discharge claim. A jury found for respondent, awarding him $40,000 actual damages and $75,000 punitive damages, and the District Court accepted the jury's award. No. C 74-50B (Wyo., May 17, 1976).
5
The Court of Appeals affirmed the District Court's judgment in most respects, but remanded the case for consideration of whether the punitive damages award was excessive. 572 F.2d 710 (CA10 1978).4 It rejected the suggestion of the Court of Appeals for the Third Circuit that punitive damages are impermissible in unfair representation suits,5 and declined to adopt the Eighth Circuit's standard, which allows punitive damages only when union officers display malice toward the employee.6 Rather, following the Fourth Circuit, the Court of Appeals ruled that a punitive award is appropriate if a union has acted wantonly or in reckless disregard of an employee's rights. See Harrison v. United Transportation Union, 530 F.2d 558, 563-564 (CA4 1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1739, 48 L.Ed.2d 203 (1976).7
6
We granted certiorari to resolve this conflict among the Courts of Appeals as to what if any circumstances justify assessing punitive damages against a union that breaches its duty of fair representation. 439 U.S. 892, 99 S.Ct. 248, 58 L.Ed.2d 237 (1978).
II
7
This Court first recognized the statutory duty of fair representation in Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), a case arising under the Railway Labor Act. Steele held that when Congress empowered unions to bargain exclusively for all employees in a particular bargaining unit, and thereby subordinated individual interests to the interests of the unit as a whole, it imposed on unions a correlative duty "inseparable from the power of representation" to exercise that authority fairly. Id., at 202-204, 65 S.Ct., at 233; see Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964); Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903 (1967); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564, 96 S.Ct. 1048, 1056, 47 L.Ed.2d 231, 17 L.Ed.2d 842 (1976).8 The fair representation doctrine thus serves as a "bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law." Vaca v. Sipes, supra, 386 U.S., at 182, 87 S.Ct., at 912. Under the doctrine, a union must represent fairly the interests of all bargaining-unit members during the negotiation, administration, and enforcement of collective-bargaining agreements. See, e. g., Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Humphrey v. Moore, supra, 375 U.S., at 342, 84 S.Ct., at 367; Hines v. Anchor Motor Freight, Inc., supra, 424 U.S., at 563-567, 96 S.Ct., at 1055-1057. In particular, a union breaches its duty when its conduct is "arbitrary, discriminatory, or in bad faith," as, for example, when it "arbitrarily ignore[s] a meritorious grievance or process[es] it in [a] perfunctory fashion." Vaca v. Sipes, supra, 386 U.S., at 190, 191, 87 S.Ct., at 917.
8
The right to bring unfair representation actions is judicially "implied from the statute and the policy which it has adopted," Steele v. Louisville & Nashville R. Co., supra, 323 U.S., at 204, 65 S.Ct., at 232, and Congress has not specified what remedies are available in these suits.9 Our function, therefore, is to implement a remedial scheme that will best effectuate the purposes of the Railway Labor Act, recognizing that the overarching legislative goal is to facilitate collective bargaining and to achieve industrial peace. See 323 U.S., at 204, 65 S.Ct., at 232; Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S.Ct. 912, 917-918, 1 L.Ed.2d 972 (1957); Machinists v. Street, 367 U.S. 740, 759, 81 S.Ct. 1784, 1795, 6 L.Ed.2d 1141 (1961); cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). Whether awarding punitive damages would comport with this national labor policy is the issue on which the instant case turns.
III
9
Punitive damages "are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence." Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974).10 In respondent's view, this extraordinary sanction is necessary to vindicate an employee's right to fair representation. Because actual damages caused by a union's failure to pursue grievances may be de minimis, see Harrison v. United Transportation Union, supra, 530 F.2d, at 563; St. Clair v. Local Union No. 515, 422 F.2d 128, 132 (CA6 1969); see also infra, at 50, respondent contends that a strong legal remedy is essential to encourage unfair representation suits and thereby inhibit union misconduct.
10
We do not doubt that the prospect of lucrative monetary recoveries unrelated to actual injury would be a powerful incentive to bring unfair representation actions. Similarly, the threat of large punitive sanctions would likely affect unions' willingness to pursue individual complaints. However, offsetting these potential benefits is the possibility that punitive awards could impair the financial stability of unions and unsettle the careful balance of individual and collective interests which this Court has previously articulated in the unfair representation area.
11
The fundamental purpose of unfair representation suits is to compensate for injuries caused by violations of employees' rights. In approving "resort to the usual judicial remedies of injunction and award of damages when appropriate," Steele v. Louisville & Nashville R. Co., 323 U.S., at 207, 65 S.Ct., at 234 (emphasis added), the Court emphasized that relief in each case should be fashioned to make the injured employee whole. Id., at 206-207, 65 S.Ct., at 233-234. This compensation principle was again invoked in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842, to govern an unfair representation suit for compensatory and punitive damages based on a union's refusal to process a grievance alleging wrongful discharge.11 The Court there rejected the contention that an order compelling arbitration was the employee's only remedy, and concluded that damages and equitable relief could be awarded when necessary to ensure full compensation. 386 U.S., at 196, 87 S.Ct., at 919.12
12
The Court in Vaca applied the compensation principle not only to gauge the sufficiency of relief but also to limit union liability. Because an employee can recover in full from his employer for its breach of contract, we reasoned that a union which fails to process a grievance predicated on that breach cannot be held liable for damages attributable to the employer's conduct. Id., at 197, 87 S.Ct., at 920. Recognizing the "real hardship" that large damages awards could impose on unions, the Court found "no merit in requiring [them] to pay the employer's share of the damages." Ibid. To avoid burdening unions beyond the extent necessary to compensate employees for their injuries, we refused to create an exception even for those unions with indemnification rights against employers. Ibid. Although acknowledging that this apportionment rule might in some instances effectively immunize unions from liability for a clear breach of duty, the Court found considerations of deterrence insufficient to risk endangering the financial stability of such institutions. 386 U.S., at 198, 87 S.Ct., at 921. Accordingly, we vacated the jury's award of compensatory and punitive damages against the union since "all or almost all" of the employee's damages were attributable to the discharge. Ibid.13
13
This limitation on union liability thus reflects an attempt to afford individual employees redress for injuries caused by union misconduct without compromising the collective interests of union members in protecting limited funds. To permit punitive damages, which, by definition, provide monetary relief "in excess of . . . actual loss," Scott v. Donald, 165 U.S. 58, 86, 17 S.Ct. 265, 267, 41 L.Ed. 632 (1897), could undermine this careful accommodation. Because juries are accorded broad discretion both as to the imposition and amount of punitive damages, see Gertz v. Robert Welch, Inc., supra, 418 U.S., at 349-350, 94 S.Ct., at 3011-3012; Prosser § 2, pp. 13-14, the impact of these windfall recoveries is unpredictable and potentially substantial. Cf. Hall v. Cole, 412 U.S. 1, 9 n. 13, 93 S.Ct. 1942, 1948, 36 L.Ed.2d 702 (1973).14 Such awards could deplete union treasuries, thereby impairing the effectiveness of unions as collective-bargaining agents. Inflicting this risk on employees, whose welfare depends upon the strength of their union, is simply too great a price for whatever deterrent effect punitive damages may have. Cf. Automobile Workers v. Russell, 356 U.S. 634, 658, 78 S.Ct. 932, 946, 2 L.Ed.2d 1030 (1958) (Warren, C. J., dissenting).
14
Additionally, the prospect of punitive damages in cases such as this could curtail the broad discretion that Vaca afforded unions in handling grievances. We there rejected the notion that employees could force unions to process their claims irrespective of the terms of the collective-bargaining agreement, and ruled that a union satisfies its obligation to represent employees fairly if it does not "arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion." Vaca v. Sipes, 386 U.S., at 191-194, 87 S.Ct., at 917. In so holding, the Court stressed that union discretion is essential to the proper functioning of the collective-bargaining system. Union supervision of employee complaints promotes settlements, avoids processing of frivolous claims, and strengthens the employer's confidence in the union. Id., at 191-193, 87 S.Ct., at 917-918. Without these screening and settlement procedures, the Court found that the costs of private dispute resolution could ultimately render the system impracticable. Ibid.
15
Just as unlimited access to the grievance process could undermine collective bargaining, so too the threat of punitive damages could disrupt the responsible decisionmaking essential to peaceful labor relations. In order to protect against a future punitive award of unforeseeable magnitude, unions might feel compelled to process frivolous claims or resist fair settlements. Indeed, even those unions confident that most juries would hold in their favor could be deterred by the possibility of punitive damages from taking actions clearly in the interest of union members. Absent clear congressional guidance, we decline to inject such an element of uncertainty into union decisions regarding their representative functions.
16
Acknowledging the "essentially remedial" objectives of the National Labor Relations Act, this Court has refused to permit punitive sanctions in certain unfair labor practice cases, see, e. g., Republic Steel Corp. v. NLRB, 311 U.S. 7, 10-12, 61 S.Ct. 77, 78-79, 85 L.Ed. 6 (1940); Carpenters v. NLRB, 365 U.S. 651, 655, 81 S.Ct. 875, 877, 6 L.Ed.2d 1 (1961), and in actions under § 303 of the Labor Management Relations Act, 29 U.S.C. § 187, Teamsters v. Morton, 377 U.S. 252, 260-261, 84 S.Ct. 1253, 1258-1259, 12 L.Ed.2d 280 (1964). Like the NLRA, the Railway Labor Act is essentially remedial in purpose. See supra, at 47-48; 45 U.S.C. § 151a; Virginian R. Co. v. Railway Employees, 300 U.S. 515, 542-548, 57 S.Ct. 592, 596-599, 81 L.Ed. 789 (1937); Machinists v. Street, 367 U.S., at 759-760, 81 S.Ct., at 1795; see also Republic Steel Corp. v. NLRB, supra, 311 U.S., at 10-11, 61 S.Ct., at 78-79. Because general labor policy disfavors punishment, and the adverse consequences of punitive damages awards could be substantial, we hold that such damages may not be assessed against a union that breaches its duty of fair representation by failing properly to pursue a grievance. Accordingly, we reverse the judgment below insofar as it upheld the award of punitive damages.
17
So ordered.
18
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, Mr. Justice REHNQUIST, and Mr. Justice STEVENS join, concurring in the result.
19
The Court now adopts a per se rule that a union's breach of its duty of fair representation can never render it liable for punitive damages, no matter how egregious its breach may be. I seriously doubt both the correctness and the wisdom of this holding. Whatever the merits of the Court's per se rule, however, there is no need to propound such a blanket proscription in this particular case. The union's conduct here betrayed nothing more than negligence, and thus presented an inappropriate occasion for awarding punitive damages under any formula. In order to dispose of this case, therefore, the Court need hold only that the trial judge erred as a matter of law in submitting the punitive damages issue to the jury; this is the holding I would adopt. Inasmuch as the Court reaches to outlaw punitive damages in all unfair representation cases, I shall attempt to show why I think the Court errs and why I concur only in the result.
A.
20
Because the duty of fair representation is judicially created, the consequences of its breach necessarily are left to judicial determination. "The appropriate remedy for a breach of a union's duty of fair representation," the Court wrote in Vaca v. Sipes, 386 U.S. 171, 195, 87 S.Ct. 903, 919, 17 L.Ed.2d 842 (1967), "must vary with the circumstances of the particular breach." Depending on the circumstances of the particular breach, the Court wrote in Steele v. Louisville & N. R. Co., 323 U.S. 192, 207, 65 S.Ct. 226, 234, 89 L.Ed. 173 (1944), "the statute contemplates resort to the usual judicial remedies of injunction and award of damages." These cases make clear that a court, seeking a remedy to match the union's wrong, has at its disposal the full panoply of tools traditionally used by courts to do justice between parties. Punitive damages, being one of these tools, thus are presumptively available for use in appropriate cases, unless Congress has directed otherwise. Since Congress has never expressly interdicted their use, the Court's decision to ban punitive damages from the arsenal necessarily rests upon inference upon a perception that punitive damages in unfair representation suits are per se inconsistent with "federal labor policy." The Court proffers four main theories to support this inference. I find none of them persuasive.
21
First, the Court discerns in Vaca and Steele a "compensation principle," a principle supposedly dictating that a damages award may "make the injured employee whole," but may do no more. Ante, at 49, and n. 12. If these cases do embody a "compensation principle"—really, a neologism in this area of the law—it is a principle of a vastly different sort from that on which the Court relies. Steele and Vaca assuredly do stand for the proposition that a worker injured by his union's breach of duty must at least be made whole. In Steele the Court held the plaintiffs entitled to a judicial damages remedy inasmuch as no "adequate administrative remedy" was available. 323 U.S., at 206-207, 65 S.Ct., at 233-234. In Vaca it refused to find exclusive jurisdiction of unfair representation suits in the National Labor Relations Board, lest victims of union discrimination, owing to the Board's limited remedial powers, on occasion be left remediless. 386 U.S., at 182-183, 87 S.Ct., at 912-913. And in Vaca it also refused to limit judicial relief to a decree compelling arbitration of the underlying grievance, reasoning that an arbitrator might lack power to award damages against the union, and holding instead that "the court should be free to decide the contractual claim and to award the employee appropriate damages or equitable relief." Id., at 196, 87 S.Ct., at 920. In Vaca and Steele, in other words, the Court held that a worker's remedies must include damages so that in all cases he would be fully compensated. But in neither case did it hold that the worker's remedies must exclude damages to the extent they rise above the full compensation norm. The Court has read into Vaca' § affirmative compensation policy a negative pregnant; it has transformed its liberal "compensation principle" into a parsimonious limiting rule; it has converted the floor beneath the injured employee's remedies into a ceiling on top of them.
22
Vaca and Steele, to my mind, contain no such negative pregnant. In Vaca the jury had awarded the worker both compensatory and punitive damages, 386 U.S., at 173, 87 S.Ct., at 907, the Court held that "such damages are not recoverable from the Union in the circumstances of this case," id., at 195, 87 S.Ct., at 919 pointing out that "all or almost all" of the worker's damages were attributable to the employer, not to the union. Id., at 198, 87 S.Ct., at 921. Vaca stands only for the proposition that a union not chargeable with compensatory damages may not be taxed with punitive damages either. If Vaca contains any negative pregnant, it is that when a union is chargeable with compensatory damages, it may be taxed with punitive damages too. In Steele, the Court held that "the statute contemplates resort to the usual judicial remedies of injunction and award of damages." 323 U.S., at 207, 65 S.Ct., at 234. This language, read in context, seems expansive to me. The Court now, by italicizing "usual," implies that punitive damages, being an extraordinary sanction, are an "unusual remedy," and hence outside Steele' § remedial compass. Ante, at 49. This reading is most strained. The Court's italics may make its point clear, but they do not make its argument correct, and they provide no substitute for a fairminded appraisal of what Steele says. Neither Vaca nor Steele, in my view, supports the negative "compensation principle" upon which the Court relies.
23
The Court's second reason for banishing punitive damages from the pantheon, closely related to the first, is that federal labor policy is "essentially remedial" and hence inhospitable to punitive awards. Ante, at 52. The Court cites two major cases to support this theory. Neither is apposite. In Republic Steel Corp. v. NLRB, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6 (1940), the Court held that the Board cannot order punitive sanctions. But the question in that case was whether "Congress [had] conferred the power upon the Board to impose such requirements." Id., at 10, 61 S.Ct., at 79. The question, in other words, was simply one of the Board's statutory competence; the Court decided that punitive sanctions were "beyond the Board's authority" and that it lacked "jurisdiction" to impose them. Id., at 11, 13, 61 S.Ct., at 79-80. Republic Steel has no pertinence here, since the federal courts have both the jurisdiction and the authority to impose punitive sanctions in their efforts to devise a federal law of remedies. In Teamsters v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964), the Court held that punitive damages may not be recovered in § 303 suits for damages from secondary boycotts. ButMorton was a case of statutory construction. Section 303 expressly authorizes an employer's recovery only of "the damages by him sustained." 29 U.S.C. § 187(b). "Punitive damages for violation of § 303," the Court reasoned in Morton, "conflict with the congressional judgment, reflected both in the language of the federal statute and in its legislative history, that recovery for an employer's 187(b). "Punitive damages for violation of § 303," the Court reasoned in Morton, "conflict with the congressional judgment, reflected both in the language of the federal statute and in its legislative history, that recovery for an employer's business losses caused by a union's peaceful secondary activities . . . should be limited to actual, compensatory damages." 377 U.S., at 260, 84 S.Ct., at 1259 (footnotes omitted). Since Congress has expressed no such prohibition on punitive damages in unfair representation suits, Morton is simply inapposite here. Neither Republic Steel nor Morton, therefore, supports the Court's invocation of an "essentially remedial" theory in the fair representation area.
24
The third reason the Court gives in support of its per se rule is that punitive damages awards "could deplete union treasuries, thereby impairing the effectiveness of unions as collective-bargaining agents." Ante, at 50-51. It is true that Vaca, in enunciating its formula for apportioning damages in wrongful-discharge cases, said that "[i]t could be a real hardship on the union" to pay damages in certain circumstances. 386 U.S., at 197, 87 S.Ct., at 920. But the Court was not talking about unions' fiscal soundness; one searches the opinion in vain for references to "depletion of union treasuries" or "impairment of union effectiveness in collective bargaining." What Vaca said was that it could be a real hardship to make a union pay "damages attributable solely to the employer's breach of contract." Ibid. It is, obviously, a "real hardship" for anyone, regardless of his wealth, to be forced to pay money for something that was not his fault. And even if Vaca were read to evince concern for union treasuries, even in cases where the union is at fault, this concern would not support the Court's proscription of punitive damages where the union's fault is egregious. As the Court notes, ante, at 48, the damages a union will be forced to pay in a typical unfair representation suit are minimal; under Vaca' § apportionment formula, the bulk of the award will be paid by the employer, the perpetrator of the wrongful discharge in a parallel § 301 action. See 386 U.S., at 197-198, 87 S.Ct., at 920-921. Union treasuries, in other words, will emerge unscathed in the general run of unfair representation cases. Given this, it can work no undue hardship on union fiscal soundness to permit punitive awards in those rare cases where the union has notoriously misbehaved.
25
The fourth theory underpinning the Court's per se rule is that "the prospect of punitive damages in cases such as this could curtail the broad discretion that Vaca afforded unions in handling grievances," and thus "could disrupt the responsible decisionmaking essential to peaceful labor relations." Ante at 1227. The Court's theory seems to be that a union, fearing punitive damages, might become more vigilant in processing workers' grievances; that this vigilance might lead unions to process frivolous grievances; that this frivolity might antagonize the employer; and that this antagonism might beget disharmony at the bargaining table. This reasoning seems tenuous to me. Surely, the Court cannot believe that such airy speculations will induce union shop stewards to abandon all vestiges of common sense as they go about their diurnal chores. And even if the prospect of punitive damages did operate to chill a union's reason "in cases such as this," no Member of the Court is proposing to award punitive damages "in cases such as this." Everyone agrees that punitive damages here were improper. The question is whether punitive damages are also to be outlawed in cases, unlike this one, where the union's conduct has been truly egregious. A little chilling of union "discretion" in those cases would not bother me.
B
26
The Court's four proffered reasons in support of a per se ban on punitive damages thus leave me unpersuaded. I am not alone in feeling this way, for no Court of Appeals to consider the question has embraced the per se rule the Court today goes out of its way to adopt. As the Court observes, ante, at 45-46, the Fourth Circuit, followed by the Tenth in this case, has approved of punitive damages in unfair representation cases. Harrison v. United Transportation Union, 530 F.2d 558, 563-564 (1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1739, 48 L.Ed.2d 203 (1976). The Eighth Circuit has expressed the view that punitive damages may be awarded where the union is guilty of "outrageous or extraordinary conduct." Butler v. Teamsters Local 823, 514 F.2d 442, 454, cert. denied, 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975). The Ninth Circuit, while barring punitive damages on the facts, restricted its holding to "grievances of the kind alleged" in the case. Williams v. Pacific Maritime Assn., 421 F.2d 1287, 1289 (1970). Even the Third Circuit, upon whose decision the Court relies to make out a Circuit conflict here, ante, at 45-46, declined to embrace the Court's per se approach, refusing to "decide whether any circumstances exist in which a punitive-type remedy . . . for union misconduct might be implied under the Railway Labor Act," and holding only that punitive damages were unavailable where (as in that case) no actual damages had been shown. Deboles v. Trans World Airlines, Inc., 552 F.2d 1005, 1019, cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977).
27
Equally instructive, in my view, are Court of Appeals cases upholding punitive damages awards in suits brought by workers against unions under the Landrum-Griffin Act. That Act outlines a "bill of rights" for union members, 29 U.S.C. § 411(a), and provides that actions for violation of those rights may be had to recover "such relief (including injunctions) as may be appropriate." § 412. Every Circuit to consider the question has held that punitive damages are "appropriate relief" when a union's conduct manifests "actual malice or reckless or wanton indifference" to members' speech and associational rights. Boilermakers v. Braswell, 388 F.2d 193, 199-201 (CA5), cert. denied, 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 854 (1968); Cooke v. Orange Belt Dist. Council, 529 F.2d 815, 820 (CA9 1976); Morrissey v. National Maritime Union, 544 F.2d 19, 24-25 (CA2 1976); Keene v. IUOE Local 624, 569 F.2d 1375, 1381-1382, and n. 8 (CA5 1978). These courts noted that punitive damages would serve a legitimate deterrent purpose in appropriate cases, Braswell, 388 F.2d, at 200; Cooke, 529 F.2d, at 820, and held that "[i]f punitive damages can be awarded against other defendants, they can be awarded against unions as well." Morrissey, 544 F.2d, at 25. This reasoning, I think, is equally in point here. The Court properly reserves decision on Landrum-Griffin cases, ante, at 47 n. 9, but its pronouncements about "[t]he compensation principle," about the "windfall" nature of punitive damages, about the need to safeguard union treasuries, and about the "essentially remedial" quality of federal labor policy, all would seem to apply with equal force to § 412 suits, and they leave me uneasy. Although the Court professes willingness to draw hairline distinctions between different types of tort suits brought by workers against unions under federal labor laws, this willingness, in my view, only suggests how tenuous is the evidence of "congressional intent" on which the Court relies to back up its per se rule here.
C
28
The Court of Appeals' unanimous refusal to erect a per se bar to punitive damages against unions, both in unfair representation cases and in Landrum-Griffin cases, seems judicious to me. If a union's conduct should reveal intentional racial discrimination, deliberate personal animus, or conscious infringement of speech and associational freedoms, I can discern no principle of federal labor policy that stands in the way of a punitive award. Punitive damages in such an exceptional case will serve at least to deter egregious union conduct, and Vaca makes clear that deterrence is a proper objective in unfair representation actions. See 386 U.S., at 187, 87 S.Ct., at 915. If the Court feels obliged to devise some "careful balance of individual and collective interests" here, ante, at 48, the solution, in my view, is not to ban punitive damages across the board, but to restrict them to their proper sphere, namely, to those rare cases where the union's conduct can truly be described as outrageous.
29
For these reasons, I would hesitate to embrace the Court's per se rule even in a case that squarely presented that question for decision. What I find particularly hard to fathom is the Court's willingness to promulgate a per se rule here, where the pronouncement is manifestly unnecessary to decision. This case involves no racial discrimination, no trampling on workers' "bill of rights"; the record does not suggest—indeed, respondent does not even contend—that the union's conduct was motivated by personal hostility. For all this record shows, the union, in neglecting to act promptly on respondent's grievance, was simply following its standard operating procedure, a procedure admittedly inappropriate here, given the time constraints under which the union was operating, but a procedure for whose inappropriateness in this case respondent himself was at least partly responsible, since it was he who failed to notify the union until 52 days of the contract's 60-day limit had expired. The union's conduct, in other words, was negligent or, at worst, grossly negligent. No court, to my knowledge, has ever held that negligence can form the basis for a proper punitive damages award. Especially should this be so in cases arising under the federal labor statutes.
30
To decide this case, in sum, the Court need hold only that the trial judge erred as a matter of law in submitting the punitive damages issue to the jury. Because the Court goes further and proscribes punitive awards in much more difficult and questionable situations, not presented here, I cannot join the opinion and I concur in the result only.
1
44 Stat. 577, as amended, 45 U.S.C. § 151 et seq.
2
Rule 21(a)(1) provides:
"All claims or grievances must be presented in writing by . . . or on behalf of the employe involved, to the officer of the Carrier authorized to receive same, within 60 days from the date of the occurrence on which the claim or grievance is based."
3
Prior to initiating this action, respondent filed a separate suit against the railroad seeking recovery for work-related personal injuries and for the allegedly wrongful discharge. As part of a settlement of the personal injury action, respondent waived his wrongful discharge claim. App. 73.
4
The court held, inter alia, that the jury was correctly instructed on the elements of the cause of action and on the principles for assessing actual damages. It also found the evidence sufficient to support the jury verdict. 572 F.2d, at 714-718.
Our grant of certiorari was limited to the punitive damages question. See 439 U.S. 892, 99 S.Ct. 248, 58 L.Ed.2d 237 (1978). Consequently, for purposes of our analysis, we must take as correct the findings below that IBEW breached its duty of fair representation and that the $40,000 compensatory damages award was proper.
5
Deboles v. Trans World Airlines, Inc., 552 F.2d 1005, 1019 (CA 3), cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). See also Williams v. Pacific Maritime Assn., 421 F.2d 1287 (CA9 1970).
6
See Butler v. Teamsters Local 823, 514 F.2d 442, 454 (CA8), cert. denied, 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975). Under the Eighth Circuit's analysis, plaintiffs may be required to demonstrate that punitive damages are needed to deter future union misconduct. See 514 F.2d, at 454; Emmanuel v. Omaha Carpenters District Council, 560 F.2d 382, 386 (CA8 1977).
7
The court below further determined that the jury instructions comported with this legal standard. The District Court had charged the jury that it could award punitive damages if petitioners acted "maliciously, or wantonly, or oppressively." App. 65.
Mr. Justice BLACKMUN surmises that "as a matter of law," the union's conduct "betrayed nothing more than negligence." Post, at 53. This conclusion necessarily assumes that there was insufficient evidence of malicious, wanton, or oppressive conduct to justify the jury's punitive damages award. We, however, are unwilling to substitute our judgment for that of the jury, District Court, and Court of Appeals on this essentially evidentiary question. See Tr. 270-271; App. 91-94; 572 F.2d, at 719; Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed. 672 (1949); Berenyi v. Immigration Director, 385 U.S. 630, 635-636, 87 S.Ct. 666, 669, 670, 17 L.Ed.2d 656 (1967).
8
The duty of fair representation is also implicit in the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq., because that statute, like the Railway Labor Act, affords unions exclusive power to represent all employees of a bargaining unit. See, e. g., Syres v. Oil Workers, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Vaca v. Sipes, 386 U.S., at 177, 87 S.Ct., at 909. For a discussion of the similarities between unfair representation suits under the two Acts, see Feller, A General Theory of the Collective Bargaining Agreement, 61 Calif.L.Rev. 663, 676-718 (1973).
9
Contrary to the fears expressed in the opinion concurring in the result, post, at 59, we express no view on the propriety of punitive awards in suits under the Landrum-Griffin Act. We are concerned here with judicially created remedies for a judicially implied cause of action. Whether the explicit statutory language of 29 U. S. C. §§ 411 and 412 and the accompanying legislative history authorize punitive damages awards obviously involves different considerations.
10
See W. Prosser, Law of Torts § 2, pp. 9-11 (4th ed. 1971) (hereinafter Prosser); D. Dobbs, Law of Remedies § 3.9, p. 204 (1973); Scott v. Donald, 165 U.S. 58, 86, 17 S.Ct. 265, 267, 41 L.Ed. 632 (1897).
11
Vaca involved a union certified under the National Labor Relations Act and a collective-bargaining agreement that permitted employees to initiate the grievance process, but precluded them from personally pursuing arbitration once grievance procedures were exhausted. 386 U.S., at 175 n. 3, 87 S.Ct., at 909. The Railway Labor Act is somewhat more solicitous of individual rights. It authorizes employees who are unsuccessful at the grievance level to seek relief in their own right from the National Railroad Adjustment Board. §§ 3 First (i), (j), 45 U.S.C. §§ 153 First (i), (j).
12
The compensation principle is also reflected in Vaca's refusal to hold unfair representation claims within the exclusive jurisdiction of the National Labor Relations Board. Because the "public interest in effectuating the policies of the federal labor laws, not the wrong done the individual employee, is always the Board's principal concern in fashioning unfair labor practice remedies," we feared that denial of a judicial forum might "frustrate the basic purposes underlying the duty of fair representation." Vaca v. Sipes, supra, at 182 n. 8, 183, 87 S.Ct. 913 n. 8 (emphasis added). See also Glover v. St. Louis-San Francisco R. Co., 393 U.S. 324, 328-329, 89 S.Ct. 548, 550-551, 21 L.Ed.2d 519 (1969).
13
On similar reasoning, the Court has applied Vaca' § apportionment principle to cases arising under the Railway Labor Act. In Czosek v. O'Mara, 397 U.S. 25, 29, 90 S.Ct. 770, 773, 25 L.Ed.2d 21 (1970), we held that "damages against the union for loss of employment are unrecoverable except to the extent that its refusal to handle the grievances added to the difficulty and expense of collecting from the employer."
14
Moreover, it cannot be ignored that punitive damages may be employed to punish unpopular defendants. As we observed in the defamation context:
"[Since] juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused . . . they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger . . .." Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974).
Community hostility toward unions, management, or minority views can thus find expression in punitive awards. See Automobile Workers v. Russell, 356 U.S. 634, 651, 78 S.Ct. 932, 942, 2 L.Ed.2d 1030 (1958) (Warren, C. J., dissenting).
| 67
|
442 U.S. 92
99 S.Ct. 2149
60 L.Ed.2d 735
GREAT WESTERN SUGAR CO.v.Edward L. NELSON.
No. 78-1060.
May 29, 1979.
PER CURIAM.
1
Respondent Nelson sued in the United States District Court for the District of Colorado to compel arbitration of his discharge by petitioner Great Western Sugar Co. The District Court held that the presumption of arbitrability consistently applied by the Court of Appeals for the Tenth Circuit required that the dispute be submitted to arbitration. Before petitioner's appeal from the District Court's order could be decided on the merits, the arbitration proceedings had been completed, and respondent filed a suggestion of mootness with the Court of Appeals. The Court of Appeals, in an order and opinion admirable for its conciseness, if not for its fidelity to our case law, said:
2
"This matter comes on for consideration of the appellee's suggestion of mootness and motion to vacate judgment of the District Court and to remand the captioned cause with instructions to dismiss. The appellant filed a brief in response arguing that the appeal be allowed to continue but if not the judgment of the trial court should be reversed and the cause be remanded with directions to dismiss.
3
"Upon consideration whereof, the order of the Court is as follows:
4
"1. The appeal is dismissed on the ground of mootness.
5
"2. The judgment of the trial court is allowed to stand." App. to Pet. for Cert. A5.
6
In Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 205, 81 L.Ed. 178 (1936), this Court said:
7
"Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss." (Emphasis supplied.)
8
The course of action prescribed in Duke Power has been followed in countless cases in this Court. See, e. g., Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975); Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960); United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).*
9
Here neither the law nor the facts are in dispute. The Court of Appeals has proceeded on the assumption that the case is moot and has dismissed the appeal for that reason. It has nonetheless stated that the judgment of the District Court shall remain in effect, a statement totally at odds with the holding ofDuke Power. The reasons for not allowing the District Court judgment to remain in effect when the fact of mootness had been properly called to the attention of the Court of Appeals were fully stated in United States v. Munsingwear, Inc., supra, at 39-41, 71 S.Ct., at 106-107, and need not be restated here. The Court of Appeals' disposition of this case may have been the result of a desire to show approval of the reasoning of the District Court in directing arbitration, but that motive cannot be allowed to excuse its failure to follow the teaching of Duke Power Co., supra.
10
Because the fact of mootness is clear, and indeed is relied upon by the Court of Appeals as its reason for dismissing petitioner's appeal, and because the law as laid down by this Court in Duke Power Co., supra, and United States v. Munsingwear, Inc., supra, is equally clear, the petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals with directions to vacate the District Court's judgment and to remand the case for dismissal of respondent's complaint.
11
It is so ordered.
12
Mr. Justice STEVENS, dissenting.
13
If we have time to grant certiorari for the sole purpose of correcting a highly technical and totally harmless error, one might reasonably (but incorrectly) infer that we have more than enough time to dispatch our more important business.
14
I would deny the petition for a writ of certiorari.
*
United States v. Munsingwear, Inc., is perhaps the leading case on the proper disposition of cases that become moot on appeal. There the Court reiterated that "[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss." 340 U.S., at 39, 71 S.Ct., at 106.
| 89
|
442 U.S. 62
99 S.Ct. 2132
60 L.Ed.2d 713
Harry PARKER, Petitioner,v.James RANDOLPH et al.
No. 78-99.
Argued March 20, 1979.
Decided May 29, 1979.
Syllabus
Respondents were convicted, after a joint trial in a Tennessee court, of murder committed during the commission of a robbery. None of the respondents took the witness stand, and their oral confessions, found by the trial court to have been freely and voluntarily given, were admitted into evidence through police officers' testimony. Respondent Pickens' written confession was also admitted into evidence over his objection that it had been obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The trial court instructed the jury that each confession could be used only against the defendant who gave it and could not be considered as evidence of a codefendant's guilt. Ultimately, the Tennessee Supreme Court upheld the convictions, holding that admission of respondents' confessions did not violate the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, which held that a defendant's rights under the Confrontation Clause of the Sixth Amendment were violated by the admission, at a joint trial, of the confession of a codefendant who did not take the stand. Respondents subsequently obtained writs of habeas corpus in a Federal District Court, which held that respondents' rights under Bruton had been violated and that introduction of respondent Pickens' written confession had violated his rights under Miranda. The Court of Appeals affirmed.
Held : The judgment is affirmed as to respondent Pickens and reversed as to the other respondents. Pp. 69-77;77-81 (opinion of REHNQUIST, J.); (opinion of BLACKMUN, J.).
1
6th Cir., 575 F.2d 1178, affirmed in part and reversed in part.
2
Mr. Justice REHNQUIST delivered the opinion of the Court with respect to Parts I and III, concluding that since the grant of certiorari was limited to the Bruton issue, the Court had no occasion to pass on the merits of the ruling that respondent Pickens' rights under Miranda had been violated. P. 76-77.
3
Mr. Justice REHNQUIST joined by THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice WHITE, concluded, in Part II, that admission of respondents' confessions with proper limiting jury instructions did not infringe respondents' right of confrontation secured by the Sixth and Fourteenth Amendments. Pp. 69-76.
4
(a) In Bruton, introduction at a joint trial of a nontestifying codefendant's confession had a "devastating" effect on the nonconfessing defendant's case. Introduction of such incriminating extrajudicial statements of a codefendant will seldom, if ever, have the same "devastating" consequences to a defendant who has himself confessed. The constitutional right of cross-examination protected by Bruton has far less practical value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence. Pp.72-73.
5
(b) Nor does the natural "motivation to shift blame onto others," recognized in Bruton to render the incriminating statements of codefendants "inevitably suspect," require application of the Bruton rule when the incriminated defendant has corroborated his codefendant's statements by heaping blame onto himself. P.73.
6
(c) The Confrontation Clause does not bar admission into evidence of every relevant extrajudicial statement by a nontestifying declarant simply because it in some way incriminates the defendant. And an instruction directing the jury to consider a codefendant's extrajudicial statement only against its source is generally sufficient to avoid offending the implicated defendant's confrontation right. Pp.73-74.
7
(d) When the defendant's own confession is properly before the jury, as here, the possible prejudice resulting from the jury's failure to follow the trial court's instructions is not so "devastating" or "vital" to the confessing defendant as to require departure from the general rule allowing admission of evidence with limiting instructions. P.74-75.
8
Mr. Justice BLACKMUN would not find the rule of Bruton to be inapplicable simply because interlocking confessions are involved. Rather, even where the confessions of nontestifying codefendants overlap to some degree, he would follow the analysis indicated by Bruton and then determine whether the error was harmless beyond a reasonable doubt. On the facts of this case, he concludes that any error was clearly harmless beyond a reasonable doubt. Pp. 77-81.
9
Michael E. Terry, Nashville, Tenn., for petitioner.
10
Walter L. Evans, Memphis, Tenn., for respondents.
11
Mr. Justice REHNQUIST delivered the opinion of the Court (Parts I and III) together with an opinion (Part II), in which THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice WHITE joined, and announced the judgment of the Court.
12
In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), this Court reversed the robbery conviction of a defendant who had been implicated in the crime by his codefendant's extrajudicial confession. Because the codefendant had not taken the stand at the joint trial and thus could not be cross-examined, the Court held that admission of the codefendant's confession had deprived the defendant of his rights under the Confrontation Clause of the Sixth Amendment. The issue before us in this case is whetherBruton requires reversal of a defendant's conviction when the defendant himself has confessed and his confession "interlocks" with and supports the confession of his codefendant. We hold that it does not.
13
* Respondents were convicted of murder committed during the commission of a robbery and were sentenced to life imprisonment. The cast of characters playing out the scenes that led up to the fatal shooting could have come from the pen of Bret Harte.1 The story began in June 1970, when one William Douglas, a professional gambler from Las Vegas, Nev., arrived in Memphis, Tenn., calling himself Ray Blaylock and carrying a gun and a deck of cards. It ended on the evening of July 6, 1970, when Douglas was shot and killed in a Memphis apartment.
14
Testimony at the trial in the Tennessee state court showed that one Woppy Gaddy, who was promised a cut of Douglas' take, arranged a game of chance between Douglas and Robert Wood, a sometime Memphis gambler. Unwilling to trust the outcome of the contest entirely to luck or skill, Douglas marked the cards, and by game's end Robert Wood and his money had been separated. A second encounter between the two men yielded similar results, and Wood grew suspicious of Douglas' good fortune. In order to determine whether and how Douglas was cheating, Wood brought to the third game an acquaintance named Tommy Thomas, who had a reputation of being a "pretty good poker player." Unknown to Wood, however, Thomas' father and Douglas had been close friends; Thomas, predictably, threw in his lot with Douglas, purposefully lost some $1,000, and reported to Wood that the game was clean. Wood nonetheless left the third game convinced that he was being cheated and intent on recouping his now considerable losses. He explained the situation to his brother, Joe E. Wood, and the two men decided to relieve Douglas of his ill-gotten gains by staging a robbery of the upcoming fourth game.
15
At this juncture respondents Randolph, Pickens, and Hamilton entered the picture. To carry out the staged robbery, Joe Wood enlisted respondent Hamilton, who was one of his employees, and the latter in turn associated respondents Randolph and Pickens. Douglas and Robert Wood sat down to the fourth and final contest on the evening of July 6, 1970. Joe Wood and Thomas were present in the room as spectators. During the course of the game, Douglas armed himself with a .38-caliber pistol and an automatic shotgun; in response to this unexpected development Joe Wood pulled a derringer pistol on Douglas and Thomas, gave the gun to Robert Wood, and left to tell respondents to move in on the game. Before respondents arrived, however, Douglas reached for his pistol and was shot and killed by Robert Wood. Moments later, respondents and Joe Wood broke down the apartment door, Robert Wood gathered up the cash left on the table, and the gang of five fled into the night. Respondents were subsequently apprehended by the police and confessed to their involvement in the crime.
16
Respondents and the Wood brothers were jointly tried and convicted of murder during the commission of a robbery. Tenn.Code Ann. § 39-2402 (1975).2 Each defendant was sentenced to life imprisonment. Robert Wood took the stand at trial, admitting that he had killed Douglas, but claiming that the shooting was in self-defense. Thomas described Douglas' method of cheating at cards and admitted his complicity in the fraud on Robert Wood. He also testified in substance that he was present in the room when Joe Wood produced the derringer and when Robert Wood shot and killed Douglas.
17
None of the respondents took the stand. Thomas could not positively identify any of them, and although Robert Wood named Hamilton as one of the three men involved in the staged robbery, he did not clearly identify Randolph and Pickens as the other two. The State's case against respondents thus rested primarily on their oral confessions, found by the trial court to have been freely and voluntarily given, which were admitted into evidence through the testimony of several officers of the Memphis Police Department.3 A written confession signed by Pickens was also admitted into evidence over his objection that it had been obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court instructed the jury that each confession could be used only against the defendant who gave it and could not be considered as evidence of a codefendant's guilt.
18
The Tennessee Court of Criminal Appeals reversed respondents' convictions, holding that they could not be guilty of felony murder since Douglas had been shot before they arrived on the scene and, alternatively, that admission of their confessions at the joint trial violated this Court's decision in Bruton. The Tennessee Supreme Court in turn reversed the Court of Criminal Appeals and reinstated the convictions. Because "each and every defendant either through words or actions demonstrated his knowledge that 'killing may be necessary,' " App. 237, the court held that respondents' agreement to participate in the robbery rendered them liable under the Tennessee felony-murder statute for Douglas' death. The Tennessee Supreme Court also disagreed with the Court of Criminal Appeals that Bruton had been violated, emphasizing that the confession at issue in Bruton had inculpated a nonconfessing defendant in a joint trial at which neither defendant took the stand. Here, in contrast, the "interlocking inculpatory confessions" of respondents Randolph, Pickens, and Hamilton, "clearly demonstrated the involvement of each, as to crucial facts such as time, location, felonious activity, and awareness of the overall plan or scheme." App. 245. Accordingly, the Tennessee Supreme Court concluded: "The fact that jointly tried codefendants have confessed precludes a violation of the Bruton rule where the confessions are similar in material aspects." Ibid., quoting State v. Elliott, 524 S.W.2d 473, 477-478 (Tenn.1975).
19
The United States District Court for the Western District of Tennessee thereafter granted respondents' applications for writs of habeas corpus, ruling that their rights under Bruton had been violated and that introduction of respondent Pickens' uncounseled written confession had violated his rights under Miranda v. Arizona, supra. The Court of Appeals for the Sixth Circuit affirmed, holding that admission of the confessions violated the rule announced in Bruton and that the error was not harmless since the evidence against each respondent, even considering his confession, was "not so overwhelming as to compel the jury verdict of guilty . . ." 575 F.2d 1178, 1182 (1978). The Court of Appeals frankly acknowledged that its decision conflicts with decisions of the Court of Appeals for the Second Circuit holding the Bruton rule inapplicable "[w]here the jury has heard not only a codefendant's confession but the defendant's own [interlocking] confession . . .." United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296, 300 (1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). Accord, United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 48-50, cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975); United States ex rel. Duff v. Zelker, 452 F.2d 1009, 1010 (1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972). We granted certiorari in this case to resolve that conflict.4 439 U.S. 978, 99 S.Ct. 563, 59 L.Ed.2d 649 (1978).
II
20
In Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), a nontestifying codefendant's confession, which incriminated a defendant who had not confessed, was admitted at a joint trial over defendant's hearsay objection. Concluding that "it was reasonably possible for the jury to follow" the trial court's instruction to consider the confession only against the declarant, this Court held that admission of the confession did not constitute reversible error. Little more than a decade later, however, Delli Paoli was expressly overruled in Bruton v. United States. In that case, defendants Bruton and Evans were convicted of armed postal robbery after a joint trial. Although Evans did not take the stand, a postal inspector was allowed to testify that Evans had orally confessed to having committed the robbery with Bruton. The trial judge instructed the jury that Evans' confession was competent evidence against Evans, but was inadmissible hearsay against Bruton and therefore could not be considered in determining Bruton's guilt.
21
This Court reversed Bruton's conviction, noting that despite the trial court's admittedly clear limiting instruction, "the introduction of Evans' confession added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination." 391 U.S., at 127-128, 88 S.Ct., at 1623. Bruton was therefore held to have been denied his Sixth Amendment right of confrontation. The Bruton court reasoned that although in many cases the jury can and will follow the trial judge's instruction to disregard inadmissible evidence,
22
"there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed." Id., at 135-136, 88 S.Ct., at 1627-1628 (citations and footnotes omitted).
23
One year after Bruton was decided, this Court rejected the notion that erroneous admission at a joint trial of evidence such as that introduced in Bruton automatically requires reversal of an otherwise valid conviction. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). In some cases, the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission so insignificant by comparison, that it is clear beyond a reasonable doubt that introduction of the admission at trial was harmless error.5 Petitioner urges us to follow the reasoning of the Court of Appeals for the Second Circuit and to hold that the Bruton rule does not apply in the context of interlocking confessions. Alternatively, he contends that if introduction of interlocking confessions at a joint trial does violate Bruton, the error is all but automatically to be deemed harmless beyond a reasonable doubt. We agree with petitioner that admission at the joint trial of respondents' interlocking confessions did not infringe respondents' right of confrontation secured by the Sixth and Fourteenth Amendments to the United States Constitution, but prefer to cast the issue in a slightly broader form than that posed by petitioner.
24
Bruton recognized that admission at a joint trial of the incriminating extrajudicial statements of a nontestifying codefendant can have "devastating" consequences to a nonconfessing defendant, adding "substantial, perhaps even critical, weight to the Government's case." 391 U.S., at 128, 88 S.Ct., at 1623. Such statements go to the jury untested by cross-examination and, indeed, perhaps unanswered altogether unless the defendant waives his Fifth Amendment privilege and takes the stand. The prejudicial impact of a codefendant's confession upon an incriminated defendant who has, insofar as the jury is concerned, maintained his innocence from the beginning is simply too great in such cases to be cured by a limiting instruction. The same cannot be said, however, when the defendant's own confession—"probably the most probative and damaging evidence that can be admitted against him," id., at 139, 88 S.Ct., at 1630 (WHITE, J., dissenting)—is properly introduced at trial. The defendant is "the most knowledgeable and unimpeachable source of information about his past conduct," id., at 140, 88 S.Ct., at 1630 (WHITE, J., dissenting), and one can scarcely imagine evidence more damaging to his defense than his own admission of guilt. Thus, the incriminating statements of a codefendant will seldom, if ever, be of the "devastating" character referred to in Bruton when the incriminated defendant has admitted his own guilt. The right protected by Bruton—the "constitutional right of cross-examination," id., at 137, 88 S.Ct., at 1628—has far less practical value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence. Successfully impeaching a codefendant's confession on cross-examination would likely yield small advantage to the defendant whose own admission of guilt stands before the jury unchallenged. Nor does the natural "motivation to shift blame onto others," recognized by the Bruton Court to render the incriminating statements of codefendants "inevitably suspect," id., at 136, 88 S.Ct., at 1628, require application of the Bruton rule when the incriminated defendant has corroborated his codefendant's statements by heaping blame onto himself.
25
The right of confrontation conferred by the Sixth Amendment is a safeguard to ensure the fairness and accuracy of criminal trials, see Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970), and its reach cannot be divorced from the system of trial by jury contemplated by the Constitution. A crucial assumption underlying that system is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed. The Confrontation Clause has never been held to bar the admission into evidence of every relevant extrajudicial statement made by a nontestifying declarant simply because it in some way incriminates the defendant. See, e. g., id., at 80, 91 S.Ct., at 215; Mattox v. United States, 156 U.S. 237, 240-244, 15 S.Ct. 337, 39 L.Ed. 409 (1895). And an instruction directing the jury to consider a codefendant's extrajudicial statement only against its source has been found sufficient to avoid offending the confrontation right of the implicated defendant in numerous decisions of this Court.6
26
When, as in Bruton, the confessing codefendant has chosen not to take the stand and the implicated defendant has made no extrajudicial admission of guilt, limiting instructions cannot be accepted as adequate to safeguard the defendant's rights under the Confrontation Clause. Under such circumstances, the "practical and human limitations of the jury system," Bruton v. United States, supra, at 135, 88 S.Ct., at 1627, override the theoretically sound premise that a jury will follow the trial court's instructions. But when the defendant's own confession is properly before the jury, we believe that the constitutional scales tip the other way. The possible prejudice resulting from the failure of the jury to follow the trial court's instructions is not so "devastating" or "vital" to the confessing defendant to require departure from the general rule allowing admission of evidence with limiting instructions.7 We therefore hold that admission of interlocking confessions with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution.8 Accordingly, the judgment of the Court of Appeals as to respondents Hamilton and Randolph is reversed.
III
27
The Court of Appeals affirmed the District Court's granting of habeas corpus relief to respondent Pickens on the additional ground that his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), had been violated. Although petitioner sought review of this ruling, our grant of certiorari was limited to the Bruton issue. We thus have no occasion to pass on the merits of the Court of Appeals' Miranda ruling. Accordingly, the judgment of the Court of Appeals as to respondent Pickens is affirmed.
28
Affirmed in part and reversed in part.
29
Mr. Justice POWELL took no part in the consideration or decision of this case.
30
Mr. Justice BLACKMUN, concurring in part and concurring in the judgment.
31
I join Parts I and III of the principal opinion and concur in the Court's judgment affirming in part and reversing in part the judgment of the Court of Appeals.
32
For me, any error that existed in the admission of the confessions of the codefendants, in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), was, on the facts of this case, clearly harmless beyond a reasonable doubt. I refrain from joining Part II of the principal opinion because, as I read it, it abandons the harmless-error analysis the Court previously has applied in similar circumstances and now adopts a per se rule to the effect that Bruton is inapplicable in an interlocking confession situation.
33
In Bruton, of course, the Court held that the admission in a joint trial of the confession of a codefendant who did not take the stand violated the Sixth Amendment confrontation right of the other defendant. Because in most cases the impact of admitting a codefendant's confession is severe, and because the credibility of any such confession "is inevitably suspect," id., at 136, 88 S.Ct., at 1628, the Court went on to hold that a limiting jury instruction could not alleviate the resultant substantial threat to a fair trial the Confrontation Clause was designed to protect. Id., at 136-137, 88 S.Ct., at 1628.
34
In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), however, the Court recognized that evidence of guilt could be sufficiently overwhelming so as to render any Bruton error "harmless beyond a reasonable doubt," under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Reversal of a conviction, then, was not required merely because of the existence of a Bruton error. The Court applied a similar harmless error analysis in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), a case concerning the defendant's own confession and a partially corroborating statement given by a nontestifying codefendant.
35
In the present case, the principal opinion appears to me to depart from this harmless-error approach and analysis to hold that Bruton simply does not apply in a case involving interlocking confessions. It concludes that in circumstances where one defendant has confessed, the interlocking confession of a codefendant "will seldom, if ever, be of the 'devastating' character referred to in Bruton." Ante, at 73. Similarly, it finds that the fact that the confession of a codefendant is "inevitably suspect" is of little weight where interlocking confessions are in evidence. Ibid. Thus, it holds that the right protected by Bruton, i. e., the Confrontation Clause right of cross-examination, "has far less practical value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence." Ibid. Accordingly, it concludes "that admission of interlocking confessions with proper limiting instructions conforms to the requirements" of the Constitution. Ante, at 75.
36
The Court has not departed heretofore from a harmless-error approach in Bruton cases. It is unclear where the present analysis will lead in cases where interlocking confessions are not in issue, but where any Bruton error appears harmless under Chapman; for where the Bruton error is harmless, the error in admitting the nontestifying codefendant's confession will be far from devastating. I would be unwilling to depart from the traditional harmless-error analysis in the straightforward Bruton -error situation. Neither would I depart from the harmless-error approach in interlocking confession cases. The fact that confessions may interlock to some degree does not ensure, as a per se matter, that their admission will not prejudice a defendant so substantially that a limiting instruction will not be curative. The two confessions may interlock in part only. Or they may cover only a portion of the events in issue at the trial. Although two interlocking confessions may not be internally inconsistent, one may go far beyond the other in implicating the confessor's codefendant. In such circumstances, the admission of the confession of the codefendant who does not take the stand could very well serve to prejudice the defendant who is incriminated by the confession, notwithstanding that the defendant's own confession is, to an extent, interlocking. I fully recognize that in most interlocking-confession cases, any error in admitting the confession of a nontestifying codefendant will be harmless beyond a reasonable doubt. Even so, I would not adopt a rigid per se rule that forecloses a court from weighing all the circumstances in order to determine whether the defendant in fact was unfairly prejudiced by the admission of even an interlocking confession. Where he was unfairly prejudiced, the mere fact that prejudice was caused by an interlocking confession ought not to override the important interests that the Confrontation Clause protects.
37
It is possible, of course, that the new approach will result in no more than a shift in analysis. Instead of focusing on whether the error was harmless, defendants and courts will be forced, instead, to inquire whether the confessions were sufficiently interlocking so as to permit a conclusion that Bruton does not apply. And I suppose that after making a determination that the confessions did not interlock to a sufficient degree, the court then would have to make a harmlesserror determination anyway, thus adding another step to the process.
38
Unfortunately, it is not clear that the new approach mandates even an inquiry whether the confessions interlock. Respondents have argued that the confessions in this case, in fact, did not interlock. Brief for Respondents 34-38. The principal opinion, however, simply assumes the interlock. It thus comes close to saying that so long as all the defendants have made some type of confession which is placed in evidence, Bruton is inapplicable without inquiry into whether the confessions actually interlock and the extent thereof. If it is willing to abandon the factual inquiry that accompanies a harmless-error determination, it should be ready, at least, to substitute an inquiry into whether there is genuine interlocking before it casts the application of Bruton, and the underlying Confrontation Clause right, completely aside.
39
I merely add that in this case, any Bruton error, in my view, clearly was harmless. The principal issue concerning respondents at trial was whether three Negro males identified by a number of witnesses as having been at the murder scene were indeed the respondents. Each confession placed the confessing respondent at the scene of the killing. Each confession implicated the confessor in the Woods' plan to rob the poker game. Each confession largely overlapped with and was cumulative to the others. Corroborative testimony from witnesses who were in the apartment placed respondent Hamilton at the scene of the murder and tentatively identified respondent Randolph as one of the Negroes who received a share of the proceeds in Hamilton's apartment immediately after the killing. The testimony of five witnesses to the events outside the apartment strongly corroborated the confessions. In these circumstances, considering the confession of each respondent against him, I cannot believe that "there is a reasonable possibility that the improperly admitted evidence contributed to the conviction." Schneble v. Florida, 405 U.S., at 432, 92 S.Ct., at 1060. Reversal on the Bruton issue, therefore, is required.
40
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
41
As Mr. Justice BLACKMUN makes clear, ante, at 77-78, proper analysis of this case requires that we differentiate between (1) a conclusion that there was no error under the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and (2) a conclusion that even if constitutional error was committed, the possibility that inadmissible evidence contributed to the conviction is so remote that we may characterize the error as harmless. Because Mr. Justice BLACKMUN properly rejects the first conclusion, my area of disagreement with him is narrow. In my view, but not in his, the concurrent findings of the District Court and the Court of Appeals that the error here was not harmless1 preclude this Court from reaching a different result of this kind of issue. E. g., Berenyi v. Immigration Director, 385 U.S. 630, 635, 87 S.Ct. 666, 669, 17 L.Ed.2d 656; Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed. 672. But see opinion of Mr. Justice BLACKMUN, ante, at 2142-2143.
42
My area of disagreement with the plurality opinion is far wider and prompts more extended remarks. The plurality adopts the first conclusion above—that no constitutional error was committed when the confessions of all three respondents were admitted into evidence at their joint trial. Without purporting to modify the Bruton rule precluding the use of a nontestifying codefendant's extrajudicial admissions against a defendant in a joint trial, the plurality reaches this conclusion by attempting to create a vaguely defined exception for cases in which there is evidence that the defendant has also made inculpatory statements which he does not repudiate at trial.2
43
If ever adopted by the Court, such an exception would seriously undercut the Court's decision in Bruton by limiting its effect to a small and arbitrarily selected class of cases. Indeed, its adoption would squarely overrule holdings in four decisions of this Court that applied the rule of Bruton.3
44
Evidence that a defendant has made an "extrajudicial admission of guilt" which "stands before the jury unchallenged," ante, at 74,73, is not an acceptable reason for depriving him of his constitutional right to confront the witnesses against him.4 In arguing to the contrary, and in striving "to cast the issue" presented "in a . . . broader form" than any of the parties felt necessary to dispose of the case, ante, at 72, the plurality necessarily relies on two assumptions. Both are erroneous. First, it assumes that the jury's ability to disregard a codefendant's inadmissible and highly prejudicial confession is invariably increased by the existence of a corroborating statement by the defendant. Second, it assumes that all unchallenged confessions by a defendant are equally reliable. Aside from two quotations from the dissent in Bruton, however, the plurality supports these assumptions with nothing more than the force of its own assertions. But the infinite variability of inculpatory statements (whether made by defendants or codefendants), and of their likely effect on juries, makes those assertions untenable. A hypothetical example is instructive.
45
Suppose a prosecutor has 10 items of evidence tending to prove that defendant X and codefendant Y are guilty of assassinating a public figure. The first is the tape of a televised interview with Y describing in detail how he and X planned and executed the crime. Items 2 through 9 involve circumstantial evidence of a past association between X and Y, a shared hostility for the victim, and an expressed wish for his early demise—evidence that in itself might very well be insufficient to convict X. Item 10 is the testimony of a drinking partner, a former cellmate, or a divorced spouse of X who vaguely recalls X saying that he had been with Y at the approximate time of the killing. Neither X nor Y takes the stand.
46
If Y's televised confession were placed before the jury while Y was immunized from cross-examination, it would undoubtedly have the "devastating" effect on X that the Bruton rule was designed to avoid. 391 U.S., at 128, 88 S.Ct., at 1623. As Mr. Justice STEWART's characteristically concise explanation of the underlying rationale in that case demonstrates, it would also plainly violate X's Sixth Amendment right to confront his accuser.5 Nevertheless, under the plurality's first remarkable assumption, the prejudice to X—and the violation of his constitutional right—would be entirely cured by the subsequent use of evidence of his own ambiguous statement. In my judgment, such dubious corroboration would enhance, rather than reduce, the danger that the jury would rely on Y's televised confession when evaluating X's guilt. SeeUnited States v. Bozza, 365 F.2d 206, 215 (CA2 1966) (Friendly, J.), quoted in n. 13, infra. Even if I am wrong, however, there is no reason to conclude that the prosecutor's reliance on item 10 would obviate the harm flowing from the use of item 1.
47
The dubiousness of X's confession in this example—as in any case in which the defendant's inculpatory statement is ambiguous, incomplete, the result of coercive influences, or simply the product of the well-recognized and often untrustworthy "urge to confess"6—illustrates the inaccuracy of the plurality's second crucial assumption. It is no doubt true that in some cases a defendant's confession will constitute such convincing evidence of his guilt that the violation of his constitutional rights is harmless beyond a reasonable doubt. E. g., Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208; Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340. But in many cases, it is not so convincing. Moreover, such evidence is not inherently more incriminating or more reliable than other kinds of evidence such as fingerprints, photographs, or eyewitness testimony. Yet, if these types of corroboration are given the same absolute effect that the plurality would accord confessions, the Bruton rule would almost never apply.7
48
I am also at a loss to understand the relevance of X's failure to "challenge" his confession at trial. Ante, at 73. For there is nothing he could say or not say about his own alleged confession that would dispel the dramatically damning effect of Y's. Furthermore, even apart from the general rule that a defendant should not be penalized for exercising one right (in this case the right not to take the stand or to introduce other evidence) by having another taken away (in this case the right to confront one's accuser), e. g., United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, it is unclear why X's failure to repudiate it necessarily enhances the reliability of a self-impeaching "confession" such as the one hypothesized above. Cf. Lakeside v. Oregon, 435 U.S. 333, 343-344, 98 S.Ct. 1091, 1097, 55 L.Ed.2d 319 (STEVENS, J., dissenting).
49
In short, I see no logic to commend the proposed exception to the rule of Bruton save, perhaps, a purpose to limit the effect of that rule to the largely irrelevant set of facts in the case that announced it. If relevant at all in the present context, the factors relied on by the plurality support a proposition no one has even remotely advocated in this case—that the corroborated evidence used in this case was so trustworthy that it should have been fully admissible against all of the defendants, and the jury instructed as much. Conceivably, corroborating or other circumstances surrounding otherwise inadmissible hearsay may so enhance its reliability that its admission in evidence is justified in some situations.8 But before allowing such a rule to defeat a defendant's fundamental right to confront his accusers, this Court surely should insist upon a strong showing not only of the reliability of the hearsay in the particular case but also of the impossibility, or at least difficulty, of making the accusers available for cross-examination.9 And, in most cases the prosecution will be hard pressed to make the latter showing in light of its ability to try the defendant and codefendant separately and to afford each immunity from the use against him of his testimony at the other's trial. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212.
50
Absent admissibility of the codefendants' confessions against respondents, therefore, the controlling question must be whether it is realistic to assume that the jury followed the judge's instructions to disregard those confessions when it was evaluating respondents' guilt. The plurality would answer this question affirmatively. But in so doing, it would repudiate much that has been said by the Court and by an impressive array of judicial and scholarly authorities who have addressed the issue.
51
As the plurality sees it, the answer to this question is supplied by the "crucial assumption underlying [the jury] system . . . that juries will follow the instructions given them by the trial judge." Ante, at 73. This assumption, it is argued, has been applied in "numerous decisions of this Court" regarding codefendants' confessions. Ante, at 74, and n. 6, citing Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101, and Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154. But this reasoning was advanced just as forcefully in the case that Bruton overruled—a case, incidentally, that relied on the same "numerous" decisions that the plurality resurrects in favor of its analysis. See Delli Paoli v. United States, 352 U.S. 232, 242, 77 S.Ct. 294, 300, 1 L.Ed.2d 278. What Bruton said in response to this reasoning—despite the plurality's contrary assertions, see ante, at 70-73—is no less applicable in the present context:
52
"[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. . . . Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed." 391 U.S., at 135-136, 88 S.Ct., at 1627-1628 (citations and footnotes omitted).
53
Rather than falling back on once numerous but now discredited decisions, I prefer to stand by the observations about this sort of question by jurists like Felix Frankfurter, Learned Hand,10 Wiley Rutledge,11 Robert Jackson,12 and Henry Friendly,13 and by scholars like Wigmore and Morgan.14 In my judgment, as I think in theirs, the odds that a jury will obey a command to ignore a codefendant's confession15— whether or not the defendant has himself confessed—are no less stacked against the defendant than was the deck of cards that William Douglas used to Robert Wood's, and ultimately to his own, downfall in the game of chance arranged by Woppy Gaddy. In contests like this, the risk that one player may be confused with another is not insubstantial.
54
I respectfully dissent.
1
As the Court of Appeals aptly commented: "This appeal involves a sequence of events which have the flavor of the old West before the law ever crossed the Pecos. The difference is that here there are no heroes and here there was a trial." 575 F.2d 1178, 1179 (CA6 1978).
2
Tennessee Code Ann. § 39-2402 (1975) provides in pertinent part as follows:
"An individual commits murder in the first degree if . . .
"(4) he commits a willful, deliberate and malicious killing or murder during the perpetration of any arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb."
3
Each of the confessions was subjected to a process of redaction in which references by the confessing defendant to other defendants were replaced with the words "blank" or "another person." As the Court of Appeals for the Sixth Circuit observed below, the confessions were nevertheless "such as to leave no possible doubt in the jurors' minds concerning the 'person[s]' referred to." 575 F.2d, at 1180.
4
The conflict extends throughout the Courts of Appeals. The Courts of Appeals for the Third and Sixth Circuits have expressly ruled that the Bruton rule applies in the context of interlocking confessions, see Hodges v. Rose, 570 F.2d 643 (CA6 1978); United States v. DiGilio, 538 F.2d 972, 981-983 (CA3 1976), cert. denied sub nom. Lupo v. United Staes, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977), and the Court of Appeals for the Ninth Circuit has done so impliedly, see Ignacio v. Guam, 413 F.2d 513, 515-516 (1969), cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970). In addition to the Court of Appeals for the Second Circuit, at least four other Courts of Appeals have rejected the Bruton claims of confessing defendants. Cases from the Fifth and Seventh Circuits have reasoned that the Bruton rule does not apply in the context of interlocking confessions and that, even if it does, the error was harmless beyond a reasonable doubt. See Mack v. Maggio, 538 F.2d 1129, 1130 (CA5 1976); United States v. Spinks, 470 F.2d 64, 65-66 (CA7), cert. denied, 409 U.S. 1011, 93 S.Ct. 456, 34 L.Ed.2d 305 (1972). Two other Courts of Appeals have rejected the Bruton claims of confessing defendants, refusing to concern themselves "with the legal nicety as to whether the . . . case is 'without' the Bruton rule, or is 'within' Bruton [and] the violation thereof constitut[es] only harmless error." Metropolis v. Turner, 437 F.2d 207, 208-209 (CA10 1971); accord, United States v. Walton, 538 F.2d 1348, 1353-1354 (CA8), cert. denied, 429 U.S. 1025, 97 S.Ct. 647, 50 L.Ed.2d 628
(1976). State-court decisions in this area are in similar disarray. Compare, e. g., Stewart v. State, 257 Ark. 753, 519 S.W.2d 733 (1975), and People v. Moll, 26 N.Y.2d 1, 307 N.Y.S.2d 876, 256 N.E.2d 185, cert. denied, sub nom. Stanbridge v. New York, 398 U.S. 911, 90 S.Ct. 1707, 26 L.Ed.2d 71 (1970), with People v. Rosochacki, 41 Ill.2d 483, 244 N.E.2d 136 (1969), and State v. Oliver, 160 Conn. 85, 273 A.2d 867 (1970).
5
In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), four defendants were found guilty of murder after a joint trial. Defendant Harrington's extrajudicial statements placed him at the scene of the crime, but "fell short of a confession." Id., at 252, 89 S.Ct., at 1727. His three codefendants, however, confessed, and their confessions were introduced at trial with the instruction that the jury was to consider each confession only against its source. One of Harrington's codefendants, whose confession implicated Harrington, took the stand and was subject to cross-examination. The other two codefendants, whose statements corroborated Harrington's admitted presence at the scene of the crime, did not take the stand. Noting the overwhelming evidence of Harrington's guilt, and the relatively insignificant prejudicial impact of his codefendants' statements, the Court held that "the lack of opportunity to cross-examine [the non-testifying co-defendants] constituted harmless error under the rule of Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)]." Id., at 253, 89 S.Ct., at 1728.
On two subsequent occasions, this Court has applied the harmless-error doctrine to claimed violations of Bruton. In Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), Schneble and a codefendant were found guilty of murder following a joint trial. Although neither defendant took the stand, police officers were allowed to testify as to a detailed confession given by Schneble and a statement given by his codefendant which tended to corroborate certain portions of Schneble's confession. We assumed, without deciding, that admission of the codefendant's statement had violated Bruton, but held that in view of the overwhelming evidence of Schneble's guilt and the comparatively insignificant impact of the codefendant's statement, "any violation of Bruton that may have occurred at petitioner's trial was harmless [error] beyond a reasonable doubt." 405 U.S., at 428, 92 S.Ct., at 1058 (emphasis added).
In Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), the prosecution introduced police testimony regarding extrajudicial statements made by two nontestifying codefendants. Each statement implicated both of the codefendants in the crimes charged. Neither codefendant took the stand, and the police testimony was admitted into evidence at their joint trial. Because the Solicitor General conceded that the statements were admitted into evidence in violation of Bruton, we had no occasion to consider the question whether introduction of the interlocking confessions violated Bruton. Proceeding from the Solicitor General's concession, we held that the police testimony "was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury." 411 U.S., at 231, 93 S.Ct., at 1570. Thus, any Bruton error was harmless beyond a reasonable doubt.
6
In Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), petitioner contended that the trial court had erred in overruling his motion for severance, arguing that the jury may have improperly considered statements of his codefendant, which were inadmissible as to petitioner, in finding petitioner guilty. This Court rejected the contention:
"It was within the sound discretion of the trial judge as to whether the defendants should be tried together or severally and there is nothing in the record to indicate an abuse of such discretion when petitioner's motion for severance was overruled. The trial judge here made clear and repeated admonitions to the jury at appropriate times that Hollifield's incriminatory statements were not to be considered in establishing the guilt of the petitioner. To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions. There is nothing in this record to call for reversal because of any confusion or injustice arising from the joint trial. The record contains substantial competent evidence upon which the jury could find petitioner guilty." Id., at 95, 75 S.Ct., at 165 (footnote omitted).
See, e. g., Blumenthal v. United States, 332 U.S. 539, 552-553, 68 S.Ct. 248, 254, 92 L.Ed. 154 (1947).
7
Mr. Justice STEVENS characterizes our decision as an attempt "to create a vaguely defined exception" to the Bruton rule for cases involving interlocking confessions, post, at 82, and suggests that the "proposed exception" is designed "to limit the effect of [the Bruton ] rule to the largely irrelevant set of facts in the case that announced it." Post, at 87. First, the dissent describes what we believe to be the "rule" as the "exception." The "rule"—indeed, the premise upon which the system of jury trials functions under the American judicial system—is that juries can be trusted to follow the trial court's instructions. Bruton was an exception to this rule, created because of the "devastating" consequences that failure of the jury to disregard a codefendant's inculpatory confession could have to a nonconfessing defendant's case. We think it entirely reasonable to apply the general rule, and not the Bruton exception, when the defendant's case has already been devastated by his own extrajudicial confession of guilt.
Second, under the reasoning of Bruton, its facts were anything but "irrelevant" to its holding. The Bruton Court recognized:
"[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. . . . Such a context is presented here. . . ." 391 U.S., at 135, 88 S.Ct., at 1627-1628.
Clearly, Bruton was tied to the situation in which it arose: "where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial." Id., at 135-136, 88 S.Ct., at 1628.
8
Mr. Justice STEVENS, in dissent, states that our holding "squarely overrule[s]" this Court's decisions in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968); Hopper v. Louisiana, 392 U.S. 658, 88 S.Ct. 2281, 20 L.Ed.2d 1347 (1968); Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). "In all four of these cases," according to the dissent, "the Court found that a Bruton error even though the defendants' confessions interlocked." Post, at 83 n. 3. We disagree.
We think that the dissent fails both to note significant factual distinctions between the present case and Roberts v. Russell, supra, and to recognize the difference in precedential value between decisions of this
Court which have been fully argued and disposed of on their merits and unargued summary dispositions, a difference which we noted in Edelman v. Jordan, 415 U.S. 651, 670-671, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Roberts "[t]he facts parallel[ed] the facts in Bruton." 392 U.S., at 293, 88 S.Ct., at 1921. Petitioner was convicted of armed robbery after a joint trial in which a codefendant's confession inculpating petitioner was introduced through the testimony of a police officer. Petitioner's cousin testified at trial that petitioner had "indicated that he thought . . . Tennessee was an easy place to commit a robbery." App. to Brief in Opposition, O.T.1967, No. 920, Misc., p. 4. This extrajudicial statement, while inculpatory, was by no stretch of the imagination a "confession." The District Court denied petitioner's application for a writ of habeas corpus, expressly relying on the authority of Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), and the Court of Appeals affirmed. This Court subsequently overruled Delli Paoli in Bruton, and granted the petition for certiorari in Roberts to consider "the question whether Bruton [was] to be applied retroactively." Roberts v. Russell, supra, at 293, 88 S.Ct., at 1921. The Court decided the question affirmatively, vacated the judgment of the Court of Appeals, and remanded the case to the District Court for further consideration in light of Bruton, in no way passing on the merits of petitioner's Bruton claim. Thus, Roberts, contrary to the dissent's reading, neither involved interlocking confessions nor "found a Bruton error."
Hopper v. Louisiana, supra, came to this Court in much the posture as Roberts. Petitioners' manslaughter convictions were affirmed by the Louisiana Supreme Court when Delli Paoli was still good law, but while their petition for certiorari was pending before this Court, Bruton was decided. In a two-sentence summary disposition, this Court granted petitioners' petition for certiorari, vacated the judgment of the Louisiana Supreme Court, and remanded the case "for further consideration in light of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and Roberts v. Russell, [392 U.S.] 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100." 392 U.S., at 658, 88 S.Ct., at 2281. Not having passed on the merits of petitioners' Bruton claim, this Court can hardly be said to have "found a Bruton error" in Hopper.
The dissent, we believe, likewise misreads Harrington v. California, supra, and Brown v. United States, supra, as our discussion of those cases in n. 5, supra, reveals.
1
As Judge Edwards noted, writing for the Court of Appeals:
"In evaluating the question of harmless error in this case, it is important to point out the factors which might affect a jury's verdict in relation to these three defendants in separate trials where the Bruton rule was observed:
"1) Randolph, Pickens and Hamilton were not involved in the gambling game between Douglas, the Las Vegas gambler, and Robert Wood, the hometown gambler who got cheated.
"2) They were not involved in originating the plan for recouping Robert Wood's losses.
"3) They were not in the room (and had not been) when Robert Wood killed Douglas.
"4) Indeed, the jury could conclude from the admissible evidence in this case that when Joe Wood pulled out his pistol, the original plan for three 'unknown' blacks to rob the all-white poker game was aborted and that petitioners' subsequent entry into the room did not involve them in the crime of murder.
"Additionally, if we return to consideration of the joint trial, that jury as charged by the state court judge had the responsibility of determining whether or not any of the three confessions testified to by Memphis police was voluntarily given. Assuming that two of the three confessions had been removed from jury consciousness by adherence to Bruton, we find it impossible to conclude that the jury finding and ultimate verdict would, 'beyond reasonable doubt,' have been the same.
"These factors serve to distinguish this case from Harrington v. California, [395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284,] and Schneble v. Florida, [405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340], and to convince us that the Bruton errors found by the District Judge cannot (as he also held) be determined to be harmless beyond reasonable doubt." 575 F.2d 1178, 1182-1183.
2
As Mr. Justice BLACKMUN points out, ante, at 78-79, it is unclear whether the plurality restricts its analysis to "interlocking" confessions, ante, at 75 (and, if so, what an "interlock" is), or whether a "broader" exception is established for all confessions. Ante, at 72. Indeed, its opinion does not explain how inculpatory a statement must be before it qualifies as a "confession," an "extrajudicial admission of guilt," or a "statemen[t] . . . heaping blame onto [oneself]." Ante, at 73, 74. Moreover, the plurality variously states its test as applicable "when[ever] the incriminated defendant has [once] admitted his own guilt" (i. e., whenever he has not "maintained his innocence from the beginning"), or only when he has once confessed and has left his "admission of guilt . . . before the jury unchallenged" by any evidence of its invalidity. Ante, at 72,73.
3
In Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, petitioner and a codefendant were jointly tried and convicted of armed robbery, to which the codefendant had confessed, implicating petitioner. In addition, petitioner's cousin testified that petitioner made certain inculpatory statements to him concerning the robbery—statements that the State Supreme Court relied upon heavily in upholding the jury finding of petitioner's guilt. App. to Respondent's Brief in Opposition, O.T.1967, No. 920, Misc., pp. 4, 6. That court also held that the redaction of the codefendant's confession to omit the references to petitioner as well as a cautionary instruction to the jury to consider the confession as evidence against the codefendant alone was sufficient to avoid any problem under the Confrontation Clause. On habeas corpus, the District Court and the Court of Appeals agreed. This Court granted the writ of certiorari and summarily vacated the conviction and remanded for reconsideration in light of Bruton. In so doing, it established both that the Bruton rule applied to the States and that it was retroactive. 392 U.S., at 294-295, 88 S.Ct., at 1922.
Similarly, in Hopper v. Louisiana, 392 U.S. 658, 88 S.Ct. 2281, 20 L.Ed.2d 1347, the Court vacated the convictions of two defendants both of whom had made full confessions that were introduced at their joint trial with the usual cautionary instructions. See 251 La. 77, 104, 203 So.2d 222, 232-233 (1967). On remand, the Louisiana Supreme Court held that the Bruton errors as to both defendants were harmless beyond a reasonable doubt in light of the overwhelming untainted evidence inculpating both, 253 La. 439, 218 So.2d 551 (1969), and this Court denied certiorari. 396 U.S. 1012, 90 S.Ct. 545, 24 L.Ed.2d 504.
In two subsequent decisions, the Court held that error had been committed under the rule of Bruton, although it found the error to be harmless. Brown v. United States, 411 U.S. 223, 230-231, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208; Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284. In all four of these cases the Court found a Bruton error even though the defendants' confessions interlocked.
The plurality's analysis is also inconsistent with almost half of the lower federal and state court opinions relied on in Bruton in support of its reasoning. 391 U.S., at 129, 135, and nn. 4, 8, 9, 88 S.Ct., at 1624, 1627. In 6 of the 14 cases cited there, the defendant as well as the codefendant had confessed. See United States ex rel. Floyd v. Wilkins, 367 F.2d 990 (CA2 1966); Greenwell v. United States, 119 U.S.App.D.C. 43, 336 F.2d 962 (1964); Barton v. United States, 263 F.2d 894 (CA5 1959); United States ex rel. Hill v. Deegan, 268 F.Supp. 580 (SDNY 1967); People v. Barbaro, 395 Ill. 264, 69 N.E.2d 692 (1946); People v. Fisher, 249 N.Y. 419, 432, 164 N.E. 336, 341 (1928) (Lehman, J., dissenting).
4
The Sixth Amendment to the United States Constitution provides:
"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ."
5
"I think it clear that the underlying rationale of the Sixth Amendment's Confrontation Clause precludes reliance upon cautionary instructions when the highly damaging out-of-court statement of a codefendant, who is not subject to cross-examination, is deliberately placed before the jury at a joint trial. A basic premise of the Confrontation Clause, it seems to me is that certain kinds of hearsay (see, e. g., Pointer v. Texas, 380 U.S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923]; Douglas v. [State of] Alabama, 380 U.S. 415 [85 S.Ct. 1074, 13 L.Ed.2d 934]) are at once so damaging, so suspect, and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give. See the Court's opinion, [391 U.S.], at 136 n. 12 [at 1628 n. 12]. It is for this very reason that an out-of-court accusation is universally conceded to be constitutionally inadmissible against the accused, rather than admissible for the little it may be worth." 391 U.S., at 137-138, 88 S.Ct., at 1629 (STEWART, J., concurring).
6
E. g., Foster, Confessions and the Station House Syndrome, 18 DePaul L.Rev. 683 (1969); Sterling, Police Interrogation and the Psychology of Confession, 14 J.Pub.L. 25 (1965). See generally T. Reik, The Compulsion to Confess 267 (1959).
7
Indeed, George Bruton was identified at trial as the perpetrator by an eyewitness to the robbery. App. in Bruton v. United States, O.T.1967, No. 705, p. 70.
8
Cf. Fed. Rule Evid. 804(b)(3) ("A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement"); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297.
9
See Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150; Rule 804(b), supra n. 8. See generally Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 582-586, and n. 43 (1978).
10
In his dissenting opinion in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, Mr. Justice Frankfurter commented on the recurring difficulties arising in the trial of two or more persons accused of collaborating in a criminal enterprise when incriminating declarations by one or more of the defendants are not admissible against others. He observed:
"The dilemma is usually resolved by admitting such evidence against the declarant but cautioning the jury against its use in determining the guilt of the others. The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell. While enforcing the rule of admitting the declaration solely against a declarant and admonishing the jury not to consider it against other defendants, Judge Learned Hand, in a series of cases, has recognized the psychological feat that this solution of the dilemma demands of juries. He thus stated the problem:
" 'In effect, however, the rule probably furthers, rather than impedes, the search for truth, and this perhaps excuses the device which satisfies form while it violates substance; that is, the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody else's.' Nash v. United States, 2nd Cir., 54 F.2d 1006, 1007.
" . . . The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds." Id., at 247-248, 77 S.Ct., at 303.
11
Writing for the Court in Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 257, 92 L.Ed. 154, Mr. Justice Rutledge said:
"The grave danger in this case, if any, arose not from the trial court's rulings upon admissibility or from its instructions to the jury. As we have said, these were as adequate as might reasonably be required in a joint trial. The danger rested rather in the risk that the jury, in disregard of the court's direction, would transfer, consciously or unconsciously, the effect of the excluded admissions from the case as made against Goldsmith and Weiss across the barrier of the exclusion to the other three defendants.
"That danger was real. It is one likely to arise in any conspiracy trial and more likely to occur as the number of persons charged together increases. Perhaps even at best the safeguards provided by clear rulings on admissibility, limitations of the bearing of evidence as against particular individuals, and adequate instructions, are insufficient to ward off the danger entirely. It is therefore extremely important that those safeguards be made as impregnable as possible."
12
Referring to the passage quoted from Blumenthal in the preceding footnote, Mr. Justice Jackson made his frequently quoted observation:
"The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, [68 S.Ct. 248, 257, 92 L.Ed. 154], all practicing lawyers know to be unmitigated fiction." Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (concurring opinion).
13
"Not even appellate judges can be expected to be so naive as really to believe that all twelve jurors succeeded in performing what Judge L. Hand aptly called 'a mental gymnastic which is beyond, not only their powers, but anybody's else.' Nash v. United States, 54 F.2d 1006, 1007 (2 Cir. 1932). It is impossible realistically to suppose that when the twelve good men and women had [the codefendant's] confession in the privacy of the jury room, not one yielded to the nigh irresistible temptation to fill in the blanks [caused by the redaction of the defendants' names] with the keys [the other evidence] provided and [to] ask himself the intelligent question to what extent Jones' statement supported [that evidence], or that if anyone did yield, his colleagues effectively persuaded him to dismiss the answers from his mind." United States v. Bozza, 365 F.2d 206, 215.
14
See 8 J. Wigmore, Evidence § 2272, p. 416 (3d ed. 1940); E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 105 (1956).
15
Indeed, the judge's command to ignore the confession may well assure that any juror who happened to miss the connection to the defendant at first will nonetheless have made it by the time he enters the jury room. Lakeside v. Oregon, 435 U.S. 333, 345, 98 S.Ct. 1091, 1098, 55 L.Ed.2d 319 (STEVENS, J., dissenting).
| 01
|
442 U.S. 127
99 S.Ct. 2205
60 L.Ed.2d 767
G. Garvin BROWN, III, Petitioner,v.Mark Paul FELSEN.
No. 78-58.
Argued Feb. 21, 1979.
Decided June 4, 1979.
Syllabus
In the settlement of a state-court collection suit, respondent stipulated that petitioner should have judgment against respondent. Shortly thereafter, respondent filed for bankruptcy, and petitioner sought to establish that respondent's debt to him was not dischargeable because it was the product of respondent's fraud, deceit, and malicious conversion and thus came within §§ 17a(2) and (4) of the Bankruptcy Act, which provide that such debts are not affected by a discharge. The bankruptcy court granted summary judgment for respondent. The court held that the record in the state-court proceeding did not establish that respondent had committed fraud, and res judicata barred petitioner from offering additional evidence to prove the underlying nature of the debt. The District Court and Court of Appeals affirmed.
Held : The bankruptcy court is not confined to a review of the judgment and record in the prior state-court proceeding when determining the dischargeability of respondent's debt. When a debtor asserts the new defense of bankruptcy, res judicata does not bar the creditor from offering additional evidence to meet that defense. A contrary rule would force premature federal issues on the state courts and would frustrate the command of the Bankruptcy Act that only honest debts are to be discharged. Pp. 131-139.
Reversed.
Craig A. Christensen, Denver, Colo., for petitioner.
Alex Stephen Keller, Denver, Colo., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The issue here is whether a bankruptcy court may consider evidence extrinsic to the judgment and record of a prior state suit when determining whether a debt previously reduced to judgment is dischargeable under § 17 of the Bankruptcy Act, 11 U.S.C.A. § 35.
2
* Petitioner G. Garvin Brown III was a guarantor for respondent Mark Paul Felsen and Felsen's car dealership, Le Mans Motors, Inc. Petitioner's guarantee secured a bank loan that financed the dealership's trading in Lotus, Ferrari, and Lamborghini automobiles. In 1975, the lender brought a collection suit against petitioner, respondent, and Le Mans in Colorado state court. Petitioner filed an answer to the bank's complaint, and a cross-claim against respondent and Le Mans. The answer and the cross-claim, by incorporating the answer, alleged that respondent and Le Mans induced petitioner to sign the guarantee "by misrepresentations and non-disclosures of material facts." App. 35. The suit was settled by a stipulation. It provided that the bank should recover jointly and severally against all three defendants, and that petitioner should have judgment against respondent and Le Mans. Neither the stipulation nor the resulting judgment indicated the cause of action on which respondent's liability to petitioner was based. Because the case was settled, respondent's sworn deposition was never made part of the court record.
3
A short time later, respondent filed a petition for voluntary bankruptcy and sought to have his debt to petitioner discharged. Through discharge, the Bankruptcy Act provides "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt," Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). By seeking discharge, however, respondent placed the rectitude of his prior dealings squarely in issue, for, as the Court has noted, the Act limits that opportunity to the "honest but unfortunate debtor." Ibid. Section 14 of the Act, 11 U.S.C. § 32, specifies that a debtor may not obtain a discharge if he has committed certain crimes or offenses. Section 17a, the focus of this case, provides that certain types of debts are not affected by a discharge. These include, under § 17a(2), "liabilities for obtaining money or property by false pretenses or false representations . . . or for willful and malicious conversion of the property of another" and, under § 17a(4), debts that "were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity."1
4
In the bankruptcy court, petitioner sought to establish that respondent's debt to petitioner was not dischargeable. Petitioner alleged that the guarantee debt was the product of respondent's fraud, deceit, and malicious conversion and so came within §§ 17a(2) and 17a(4). Petitioner contended that respondent had prepared false title certificates, sold automobiles out of trust, and applied the proceeds to private purposes. Respondent answered and moved for summary judgment. Respondent said that the prior state-court proceeding did not result in a finding of fraud, and contended that res judicata barred relitigation of the nature of respondent's debt to petitioner, even though the application of § 17 had not been in issue in the prior proceeding.
5
Before 1970, such res judicata claims were seldom heard in federal court. Traditionally, the bankruptcy court determined whether the debtor merited a discharge under § 14, but left the dischargeability under § 17 of a particular debt to the court in which the creditor sued, after bankruptcy, to enforce his prior judgment. Typically, that court was a state court. In 1970, however, Congress altered § 17 to require creditors to apply to the bankruptcy court for adjudication of certain dischargeability questions, including those arising under §§ 17a(2) and 17a(4).2 In In re Nicholas, 510 F.2d 160, cert. denied, 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680 (1975), the United states Court of Appeals for the Tenth Circuit, confronting for the first time the res judicata question presented here, resolved it by holding that, in determining the dischargeability of a claim previously reduced to judgment, the District Court had properly limited its review to the record and judgment in the prior state-court proceeding. The Court of Appeals found that its decision accorded with the majority rule among state courts previously considering the question.
6
The bankruptcy court here, bound by Nicholas, somewhat reluctantly3 confined its consideration to the judgment, pleadings, exhibits, and stipulation which were in the state-court record. It declined to hear other evidence, and it refused to consider respondent's deposition that had never been made part of that record. The court concluded that, because neither the judgment nor the record showed that petitioner's allegation of misrepresentation was the basis for the judgment on the cross-claim against respondent, the liability had not been shown to be within §§ 17a(2) and 17a(4). The court granted summary judgment for respondent and held that the debt was dischargeable. App. 44-48.
7
Both the United States District Court for the District of Colorado, id., at 49, and the United States Court of Appeals for the Tenth Circuit affirmed. In an unpublished opinion, the Court of Appeals followed Nicholas, applied res judicata, and said that the prior consent decree was conclusive as to the nature of respondent's liability. The court noted that neither the stipulation nor the judgment mentioned fraud, and the court said that petitioner had not even met the state requirement that fraud be pleaded with specificity. See Colo.Rule Civ.Proc. 9(b). The court agreed that respondent's debt was dischargeable. App. 50-56.
8
Since Nicholas was decided, every other Court of Appeals that has considered the question has rejected res judicata and held that extrinsic evidence may be admitted in order to determine accurately the dischargeability under § 17 of a debt previously reduced to judgment in state court.4 We granted certiorari to resolve this conflict. 439 U.S. 925, 99 S.Ct. 307, 58 L.Ed.2d 317 (1978).
II
9
Res judicata ensures the finality of decisions. Under res judicata, "a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 320, 84 L.Ed. 329 (1940); 1B J. Moore, Federal Practice ¶ 0.405[1] (2d ed. 1974). Res judicata thus encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.
10
Bankruptcy often breeds litigation, and respondent contends that the policy of repose which underlies res judicata has particular force here. Respondent argues that petitioner chose not to press the question of fraud in the state-court proceeding even though an adjudication of fraud would have entitled petitioner to extraordinary remedies such as exemplary damages and body execution.5 Respondent says that because petitioner did not obtain a stipulation concerning fraud in the prior state-court proceeding, he is now barred from litigating matters that could have been concluded in the consent judgment. See United States v. Armour & Co., 402 U.S. 673, 681-682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). Applying res judicata in bankruptcy court, it is argued, prevents a creditor from raising as an afterthought claims so insubstantial that they had previously been overlooked. In respondent's view, res judicata stops harassment and promotes the orderly processes of justice by encouraging the consolidation of the entire dispute between debtor and creditor into one prior proceeding.
11
Because res judicata may govern grounds and defenses not previously litigated, however, it blockades unexplored paths that may lead to truth. For the sake of repose, res judicata shields the fraud and the cheat as well as the honest person. It therefore is to be invoked only after careful inquiry. Petitioner contends, and we agree, that here careful inquiry reveals that neither the interests served by res judicata, the process of orderly adjudication in state courts, nor the policies of the Bankruptcy Act would be well served by foreclosing petitioner from submitting additional evidence to prove his case.
A.
12
Respondent's res judicata claim is unlike those customarily entertained by the courts. For example, this case is readily distinguishable from Chicot County Drainage Dist. v. Baxter State Bank, supra. There, bondholders participated in a federal statutory proceeding for the readjustment of indebtedness and a judgment was entered. After parties from another State succeeded in having the statute declared unconstitutional, the bondholders brought a suit seeking to collect the sums that had been due before readjustment. The Court held that res judicata barred the second suit and said that the bondholders "were not the less bound by the decree" because they failed to raise the constitutional claim in the first proceeding. 308 U.S., at 375, 60 S.Ct., at 319.
13
Here, in contrast, petitioner readily concedes that the prior decree is binding. That is the cornerstone of his claim. He does not assert a new ground for recovery, nor does he attack the validity of the prior judgment. Rather, what he is attempting to meet here is the new defense of bankruptcy which respondent has interposed between petitioner and the sum determined to be due him. A substantial minority of state-court decisions, particularly those following Fidelity & Casualty Co. v. Golombosky, 133 Conn. 317, 322-324, 50 A.2d 817, 819-820 (1946) (Maltbie, C. J.), have recognized this distinction and have refused to apply res judicata in determining the dischargeability of debts previously reduced to judgment.6 Respondent has upset the repose that would justify treating the prior state-court proceeding as final, and it would hardly promote confidence in judgments to prevent petitioner from meeting respondent's new initiative.
B
14
Respondent contends that the § 17 questions raised here, or similar issues of state law, could have been considered in the prior state-court proceeding and therefore are not "new." Respondent argues that the state-court collection suit is the appropriate forum for resolving all debtor-creditor disputes, including those concerning dischargeability. While in some circumstances the consolidation of proceedings may be desirable, here consolidation would undercut a statutory policy in favor of resolving § 17 questions in bankruptcy court, and would force state courts to decide these questions at a stage when they are not directly in issue and neither party has a full incentive to litigate them. See In re Pigge, 539 F.2d 369, 371-372 (CA4 1976).
15
1. Considerations material to discharge are irrelevant to the ordinary collection proceeding. The creditor sues on the instrument which created the debt. Even if an issue similar to those created by § 17 should arise, the state-law concept is likely to differ from that adopted in the federal statute. See 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy ¶ 17.16[6], p. 1650.1 (14th ed. 1978). For example, in Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934), the Court held that a mere technical conversion by a bankrupt dealer in automobiles was not "willful and malicious" within the meaning of § 17 by virtue of being actionable under state law, nor was a misappropriation of funds, held pursuant to a "trust receipt," a breach of an express trust sufficient to constitute an act done "as an officer or in any fiduciary capacity."
16
When § 17 issues are not identical to those arising under state law, the parties have little incentive to litigate them. In the collection suit, the debtor's bankruptcy is still hypothetical. The rule proposed by respondent would force an otherwise unwilling party to try § 17 questions to the hilt in order to protect himself against the mere possibility that a debtor might take bankruptcy in the future. In many cases, such litigation would prove, in the end, to have been entirely unnecessary, and it is not surprising that at least one state court has expressly refused to embroil itself in an advisory adjudication of this kind. See Pioneer Finance & Thrift Co. v. Powell, 21 Utah 2d 201, 204, 443 P.2d 389, 391 (1968). And absent trial on the merits, there is no particular reason to favor extraneous facts thrown into a record for § 17 purposes over facts adduced before the bankruptcy court.
17
2. If a state court should expressly rule on § 17 questions, then giving finality to those rulings would undercut Congress' intention to commit § 17 issues to the jurisdiction of the bankruptcy court. The 1970 amendments eliminated postbankruptcy state-court collection suits as a means of resolving certain § 17 dischargeability questions. In those suits, creditors had taken advantage of debtors who were unable to retain counsel because bankruptcy had stripped them of their assets. Congress' primary purpose was to stop that abuse. A secondary purpose, however, was to take these § 17 claims away from state courts that seldom dealt with the federal bankruptcy laws and to give those claims to the bankruptcy court so that it could develop expertise in handling them.7 By the express terms of the Constitution, bankruptcy law is federal law, U. S. Const., Art. I, § 8, cl. 4, and the Senate Report accompanying the amendment described the bankruptcy court's jurisdiction over these § 17 claims as "exclusive," S.Rep.No. 91-1173, p. 2 (1970). While Congress did not expressly confront the problem created by prebankruptcy state-court adjudications, it would be inconsistent with the philosophy of the 1970 amendments to adopt a policy of res judicata which takes these § 17 questions away from bankruptcy courts and forces them back into state courts. See In re McMillan, 579 F.2d 289, 293 (CA3 1978); In re Houtman, 568 F.2d 651, 654 (CA9 1978); In re Pigge, 539 F.2d, at 371; 1 D. Cowans, Bankruptcy Law and Practice § 253, p. 298 (1978). Compare 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy ¶ 17.16[6], p. 1650.1 n. 50 (14th ed. 1978) (1970 Act), with id., ¶ 17.16[4], p. 1643 (prior state law).
18
Respondent argues that petitioner could have avoided such a result and preserved his dischargeability contentions for bankruptcy court review by bargaining for a stipulation that § 17 issues were not resolved by the consent judgment. It makes little sense, however, to resolve a federal dischargeability question according to whether or not the parties in state court waived their right to engage in hypothetical litigation in an inappropriate forum.
19
3. Respondent also contends that petitioner had an adequate incentive to prove state-law fraud, which might have entailed proof identical to that required by § 17. Petitioner, however, rejected whatever lure exemplary damages and body execution may have provided. That rejection does not conclusively show that petitioner thought respondent was innocent of fraud. Petitioner may have thought those remedies would not be advantageous to him.8 While respondent is certainly entitled to claim that res judicata would bar further pursuit of those extraordinary remedies in state court, their hypothetical desirability provides no basis for preventing petitioner from recovering on the debt, the remedy he elected from the beginning.
C
20
Refusing to apply res judicata here would permit the bankruptcy court to make an accurate determination whether respondent in fact committed the deceit, fraud, and malicious conversion which petitioner alleges. These questions are now, for the first time, squarely in issue. They are the type of question Congress intended that the bankruptcy court would resolve. That court can weigh all the evidence, and it can also take into account whether or not petitioner's failure to press these allegations at an earlier time betrays a weakness in his case on the merits.
21
Some indication that Congress intended the fullest possible inquiry arises from the history of § 17. In the 1898 Bankruptcy Act, Congress provided that only "judgments" sounding in fraud would be excepted from a bankrupt's discharge. 30 Stat. 550. In 1903, Congress substituted "liabilities" for "judgments." 32 Stat. 798. The amendment, said the accompanying House Report, was "in the interest of justice and honest dealing and honest conduct," and it was intended "to exclude beyond peradventure certain liabilities growing out of offenses against good morals."9 This broad language suggests that all debts arising out of conduct specified in § 17 should be excepted from discharge and the mere fact that a conscientious creditor has previously reduced his claim to judgment should not bar further inquiry into the true nature of the debt. Cf. Hargadine-McKittrick Dry Goods Co. v. Hudson, 111 F. 361, 362-363 (E.D.Mo.1901), aff'd, 122 F. 232, 235-236 (CA8 1903) (comparing 1903 Act to prior law).
22
In sum, we reject respondent's contention that res judicata applies here and we hold that the bankruptcy court is not confined to a review of the judgment and record in the prior state-court proceedings when considering the dischargeability of respondent's debt. Adopting the rule respondent urges would take § 17 issues out of bankruptcy courts well suited to adjudicate them, and force those issues onto state courts concerned with other matters, all for the sake of a repose the bankrupt has long since abandoned.10 This we decline to do.
23
The judgment of the Court of Appeals is reversed.
24
It is so ordered.
1
In 1978, Congress repealed the Bankruptcy Act, effective October 1, 1979. See Bankruptcy Reform Act of 1978, Pub.L. 95-598, § 401(a), 92 Stat. 2682. A case commenced under the Bankruptcy Act continues to be governed by it. § 403(a), 92 Stat. 2683. Discharge provisions substantially similar to § 17 of the Bankruptcy Act appear in § 523 of the new law. 11 U.S.C.App. § 523 (1976 ed., Supp. II).
2
See Pub.L. 91-467, §§ 5-7, 84 Stat. 992; H.R.Rep.No. 91-1502 (1970); S.Rep.No. 91-1173 (1970), U.S.Code Cong. & Admin.News, p. 4156.
3
The court observed that, in its experience, the Nicholas rule had "created more difficulties and more problems then it has solved." Tr. in No. 76 B 56 (Colo., Dec. 14, 1976), p. 13.
4
See In re Wright, 584 F.2d 83, 84 (CA5 1978); In re McMillan, 579 F.2d 289, 293, and n. 6 (CA3 1978); In re Houtman, 568 F.2d 651, 653-654 (CA9 1978); In re Pigge, 539 F.2d 369, 371-372 (CA4 1976).
Two Circuits held that extrinsic evidence as admissible under pre-1970 law. See Martin v. Rosenbaum, 329 F.2d 817, 820 (CA9 1964); In re Johnson, 323 F.2d 574 (CA3 1963). But cf. Chernick v. United States, 492 F.2d 1349, 1351, and n. 4 (CA7 1974) (bound by prior postbankruptcy judgment). This Court, in dictum, indicated that extrinsic evidence could be admitted in a proceeding under the 1867 Bankruptcy Act. Strang v. Bradner, 114 U.S. 555, 560-561, 5 S.Ct. 1038, 1040, 29 L.Ed. 248 (1885).
5
In Colorado, body execution is a statutory remedy which, under certain circumstances, permits a creditor to have a tortious judgment debtor imprisoned at the creditor's expense. See Hershey v. People, 91 Colo. 113, 12 P.2d 345 (1932); Colo.Rev.Stat. § 13-59-103 (1973).
6
See United States Credit Bureau v. Manning, 147 Cal.App.2d 558, 562, 305 P.2d 970, 973 (2d Dist.1957); Welsh v. Old Dominion Bank, 229 A.2d 455, 456 (D.C.App.1967); Levin v. Singer, 227 Md. 47, 57-60, 175 A.2d 423, 428-430 (1961); Fireman's Fund Indemnity Co. v. Caruso, 252 Minn. 435, 439-441, 90 N.W.2d 302, 305-306 (1958); Durrett v. Smith, 358 S.W.2d 261, 263 (Mo.App.1962). The Golombosky case has been applauded by the commentators. See J. MacLachlan, Bankruptcy 111 (1956); Note, Fraudulent Financial Statements and Section 17 of the Bankruptcy Act—The Creditor's Dilemma, 1967 Utah L.Rev. 281, 288-290, 296; Developments in the Law—Res Judicata, 65 Harv.L.Rev. 818, 885 (1952); Comment, 60 Harv.L.Rev. 638 (1947); Comment, 33 Va.L.Rev. 508 (1947). Cf. 8 H. Remington, Bankruptcy Law 186 (6th ed. 1955) (contrary decisions are sound only when applied to the "typical 'afterthought' and harassment case"). But see Note 21 J. Nat. Assn. of Referees in Bankruptcy 94 (1947).
Other States, however, continued to apply res judicata and refused to admit additional evidence. See Miller v. Rush, 155 Colo. 178, 188, 393 P.2d 565, 571 (1964); Security National Bank v. Boccio, 60 Misc.2d 547, 548, 303 N.Y.S.2d 610, 611 (Nassau Cty. 1969); Universal C. I. T. Credit Corp. v. Woodmansee, 213 Tenn. 429, 437, 374 S.W.2d 386, 390 (1964); Beehive State Bank v. Buntine, 17 Utah 2d 351, 352, 411 P.2d 967, 968 (1966); Northey v. Vandermark, 66 Wash.2d 173, 176, 401 P.2d 873, 875-876 (1965).
The state decisions predating Golombosky are close to unanimity in adhering to res judicata. See Aetna Casualty & Surety Co. v. Sentilles, 160 So. 149, 151 (La.App.1935); Rice v. Guider, 275 Mich. 14, 18, 265 N.W. 777, 778 (1936); Ehnes v. Generazzo, 19 N.J.Misc. 393, 396, 20 A.2d 513, 515 (Com.Pl.1941); Scott v. Corn, 19 S.W.2d 412, 415 (Tex.Civ.App.1929), cert. denied, 281 U.S. 736, 50 S.Ct. 249, 74 L.Ed. 1151 (1930); Annot., 170 A.L.R. 368 (1947). But see Gehlen v. Patterson, 83 N.H. 328, 331, 141 A. 914, 916 (1928).
7
See S.Rep.No. 91-1173, pp. 2-3 (1970); H.R.Rep.No. 91-1502, p. 1 (1970). A statement by Professor Lawrence King, prepared for the National Bankruptcy Conference, included in both the House and Senate Reports and placed in the Congressional Record by Representative Wiggins, said:
"One of the strongest arguments in support of the bill is that if the bill is passed, a single court, to wit, the bankruptcy court, will be able to pass upon the question of dischargeability of a particular claim and it will be able to develop an expertise in resolving the problem in particular cases. The State court judges, however capable they may be, do not have enough cases to acquire sufficient experience to enable them to develop this expertise. Moreover, even under the present system, in the last analysis, it is the U. S. Supreme Court which has the ultimate word on the construction of section 17 of the Bankruptcy Act. . . . Since this is a Federal statute, the Federal courts necessarily have the final word as to the meaning of any terms contained therein." S.Rep.No. 91-1173, p. 9 (1970); H.R.Rep.No. 91-1502, p. 8 (1970); 116 Cong.Rec. 34819 (1970), U.S.Code Cong. & Admin.News, p. 4163. See also S.Rep.No. 91-1173, p. 6 (1970) (letter of Royal E. Jackson, Chief, Division of Bankruptcy, quoting Prof. Charles Seligson).
8
So long as a debtor is solvent, the debtor and creditor alike may prefer a simple contract suit to complex tort litigation. Default and consent judgments are common in collection proceedings. For the creditor, the prospect of increased attorney's fees and the likelihood of driving the debtor into bankruptcy may offset the advantages of exemplary damages or other extraordinary remedies. Bankruptcy deprives the debtor of his creditworthiness and so impairs his ability to repay. In the words of a Shakespearean creditor, fearing the worst:
"When every feather sticks in his own wing,
Lord Timon will be left a naked Gull,
Which flashes now a Phoenix." Timon of Athens, Act 2, Scene 1, in VII The Works of Shakespeare 294 (Henley ed. 1903).
Nor does body execution aid in the collection of a debt if the creditor needs to be out of jail in order to earn the money to repay the debt.
9
H.R.Rep.No. 1698, 57th Cong., 1st Sess., 3, 6 (1902). See 36 Cong.Rec. 1375 (1903).
10
This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 59 L.Ed.2d 645 (1979); Cromwell v. County of Sac, 94 U.S. (4 Otto) 351, 352-353, 24 L.Ed. 195 (1877). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court.
Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating a § 17 question should give collateral-estoppel effect to a prior state judgment. In another context, the Court has held that a bankruptcy court should give collateral-estoppel effect to a prior decision. Heiser v. Woodruff, 327 U.S. 726, 736, 66 S.Ct. 853, 857, 90 L.Ed. 970 (1946). The 1970 amendments to the Bankruptcy Act, however, have been interpreted by some commentators to permit a contrary result. See 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy § 17.16[6], p. 1650.2 (14th ed. 1978); Countryman, The New Dischargeability Law, 45 Am.Bankr.L.J. 1, 49-50 (1971). But see 1 D. Cowans, Bankruptcy Law and Practice § 253 (1978).
| 78
|
442 U.S. 191
99 S.Ct. 2243
60 L.Ed.2d 816
Karen MARCHIORO et al., Appellants,v.Neale V. CHANEY et al.
No. 78-647.
Argued March 26, 1979.
Decided June 4, 1979.
Syllabus
Held: A Washington statute that requires each major political party to have a State Committee consisting of two persons from each county in the State does not, by so restricting the composition of the State Committee, violate the rights of members of a political party to freedom of association protected by the First and Fourteenth Amendments insofar as concerns the Committee's activities involving purely internal party decisions. None of these activities—such as exercising the party's policymaking functions when the party's State Convention is in adjournment, directing the party's administrative apparatus, raising and distributing funds to party candidates, conducting workshops to instruct candidates on effective campaign procedures and organization, and seeking to further party objectives of influencing policy and electing its adherents to office—is required by statute to be performed by the Committee; instead, all of the "internal party decisions" are made by the Committee because of delegations of authority from the party's Convention itself. As far as the statutory scheme is concerned, there is no reason why the Convention—instead of attempting to increase the size of the State Committee by providing for the election of members in addition to those specified by the statute—could not create an entirely new separate committee or one, for example, composed of members of the State Committee and such additional membership as might be desired to perform the political functions now performed by the State Committee. Thus, there can be no complaint that the party's right to govern itself has been substantially burdened by statute when the source of the complaint is the party's own decision to confer critical authority on the State Committee. Pp. 195-199.
90 Wash.2d 298, 582 P.2d 487, affirmed.
Charles A. Goldmark, Seattle, Wash., for appellants.
Daniel P. Brink, Seattle, Wash., for appellees.
Mr. Justice STEVENS delivered the opinion of the Court.
1
Since 1927, a Washington statute has required each major political party to have a State Committee consisting of two persons from each county in the State.1 The question presented by this appeal is whether the Washington Supreme Court correctly held that this statute does not violate the First Amendment of the United States Constitution.2
2
The powers of the Democratic State Committee are derived from two sources: the authorizing statute and the Charter of the Democratic Party of Washington. The statute gives the State Committee the power to call conventions, to provide for the election of delegates to national conventions and for the nomination of Presidential electors, and to fill vacancies on the party ticket.
3
The principal activities performed by the State Committee are authorized by the Charter of the Democratic Party of Washington. The Charter provides that the State Committee shall act as the party's governing body when the Convention is in adjournment.3 And it gives the State Committee authority to organize and administer the party's administrative apparatus, to raise and distribute funds to candidates, to conduct workshops, to instruct candidates on effective campaign procedures and organization, and generally to further the party's objectives of influencing policy and electing its adherents to public office.4
4
Under both party rules and state law, the State Convention rather than the State Committee is the governing body of the party. The Charter explicitly provides that the Convention is "the highest policy-making authority within the State Democratic Party."5 And the State Supreme Court has unequivocally held that the "state convention of a major political party is the ultimate repository of statewide party authority. . . . [T]he state convention is implicitly empowered to establish the permanent state organization of the party, create committees, delegate authority, and promulgate, adopt, ratify, amend, repeal or enforce intraparty statewide rules and regulations."6
5
In 1976, the State Democratic Convention adopted a Charter amendment directing that the State Committee include members other than those specified by state statute. The Charter amendment provided that in addition to the two delegates from each of the State's 39 counties, there should be one representative elected from each of the State's 49 legislative districts. Pursuant to this Charter amendment new legislative district representatives were elected to serve on the State Committee. At the January 1977 meeting of the State Committee, a motion to seat these newly elected representatives was ruled out of order, apparently in reliance on the statutory definition of the composition of the Committee.7
6
Thereafter, members and officers of the State Democratic Party, including four who had been elected as legislative district representatives, instituted this action for declaratory and injunctive relief in the King County Superior Court. Among their contentions was a claim that the statutory restriction on the composition of the Democratic State Committee violated their rights to freedom of association protected by the First and Fourteenth Amendments.8
7
The Superior Court granted appellants' motion for a partial summary judgment. On appeal, a divided State Supreme Court reversed that part of the trial court's judgment that invalidated the statutory definition of the central Committee.9 The state court reasoned that although " 'substantial burdens' " on the right to associate for political purposes are invalid unless " 'essential to serve a compelling state interest,' "10 these appellants failed to establish that this statute had imposed any such burden on their attempts to achieve the objectives of the Democratic Party. Since this initial burden had not been met, the court upheld the constitutionality of the challenged statute.
8
We noted probable jurisdiction, 439 U.S. 1044, 99 S.Ct. 718, 58 L.Ed.2d 703 and now affirm the judgment of the Washington Supreme Court.
9
The requirement that political parties form central or county committees composed of specified representatives from each district is common in the laws of the States.11 These laws are part of broader election regulations that recognize the critical role played by political parties in the process of selecting and electing candidates for state and national office. The State's interest in ensuring that this process is conducted in a fair and orderly fashion is unquestionably legitimate; "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714. That interest is served by a state statute requiring that a representative central committee be established, and entrusting that committee with authority to perform limited functions, such as filling vacancies on the party ticket, providing for the nomination of Presidential electors and delegates to national conventions and calling statewide conventions. Such functions are directly related to the orderly participation of the political party in the electoral process.
10
Appellants have raised no objection to the Committee's performance of these tasks.12 Rather, it is the Committee's other activities—those involving "purely internal party decisions," Brief for Appellants 5 n. 11—that concern appellants and give rise to their constitutional attack on the statute.
11
The Committee does play a significant role in internal party affairs: The appellants' description of its activities makes this clear:
12
"Between state conventions, the Democratic State Committee is the statewide party governing body. It meets at least four times each year, exercises the party's policy-making functions, directs the party's administrative apparatus, raises and distributes funds to Democratic candidates, conducts workshops to instruct candidates on effective campaign procedures and organization, and seeks generally to further the party's objectives of influencing policy and electing its adherents to public office. Insofar as is relevant here, the state committee is purely an internal party governing body." Id., at 4-5 (footnotes omitted).
13
None of these activities, however, is required by statute to be performed by the Committee.13 With respect to each, the source of the Committee's authority is the Charter adopted by the Democratic Party.14
14
In short, all of the "internal party decisions" which appellants claim should not be made by a statutorily composed Committee are made not because of anything in the statute, but because of delegations of authority from the Convention itself. Nothing in the statute required the party to authorize such decisionmaking by the Committee; as far as the statutory scheme is concerned, there is no reason why the Convention could not have created an entirely new committee or one, for example, composed of members of the State Committee and such additional membership as might be desired to perform the political functions now performed by the State Committee. The fact that it did not choose such an alternative course is hardly the responsibility of the state legislature.
15
The answer to appellants' claims of a substantial burden on First Amendment rights, then, turns out to be a simple one. There can be no complaint that the party's right to govern itself has been substantially burdened by statute when the source of the complaint is the party's own decision to confer critical authority on the State Committee. The elected legislative representatives who claim that they have been unable to participate in the internal policymaking of the Committee should address their complaint to the party which has chosen to entrust those tasks to the Committee, rather than to the state legislature. Instead of persuading us that this is a case in which a state statute has imposed substantial burdens on the party's right to govern its affairs, appellants' own statement of the facts establishes that it is the party's exercise of that very right that is the source of whatever burdens they suffer.15
16
The judgment of the Washington Supreme Court is affirmed.
17
It is so ordered.
18
Mr. Justice POWELL took no part in the consideration or decision of this case.
1
Washington Rev.Code § 29.42.020 (1976) provides:
"State Committee. The state committee of each major political party shall consist of one committeeman and one committeewoman from each county elected by the county committee at its organization meeting. It shall have a chairman and vice chairman who must be of opposite sexes. This committee shall meet during January of each odd-numbered year for the purpose of organization at a time and place designated by a sufficient notice to all the newly elected state committeemen and committeewomen by the authorized officers of the retiring committee. For the purpose of this section a notice mailed at least one week prior to the date of the meeting shall constitute sufficient notice. At its organizational meeting it shall elect its chairman and vice chairman, and such officers as its bylaws may provide, and adopt bylaws, rules and regulations. It shall have power to:
"(1) Call conventions at such time and place and under such circumstances and for such purposes as the call to convention shall designate. The manner, number and procedure for selection of state convention delegates shall be subject to the committee's rules and regulations duly adopted;
"(2) Provide for the election of delegates to national conventions;
"(3) Fill vacancies on the ticket for any federal or state office to be voted on by the electors of more than one county;
"(4) Provide for the nomination of presidential electors; and
"(5) Perform all functions inherent in such an organization.
"Notwithstanding any provision of this [1972 amendatory act], the committee shall not set rules which shall govern the conduct of the actual proceedings at a party state convention."
Between 1909 and 1927, the statute provided for one member to be elected from each county.
A "major political party" is defined as "a political party of which at least one nominee for president, vice president, United States senator, or a state-wide office received at least five percent of the total vote cast at the last preceding state general election in an even-numbered year . . ." Wash.Rev.Code § 29.01.090 (Supp.1977).
2
The First Amendment provides in pertinent part:
"Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States. Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24.
3
Charter, Art. IV(G)(1), App. 10.
4
Charter, Arts. IV(G)(1), (2), (5), App. 10-11; Charter, Art. VII(C)(1), App. 19.
5
Charter, Art. V(F)(5), App. 15.
6
King County Republican Central Committee v. Republican State Committee, 79 Wash.2d 202, 211-212, 484 P.2d 387, 392 (1971). See also 90 Wash.2d 298, 313, 582 P.2d 487, 496 (1978) (case below).
7
An appeal from that ruling was defeated by a vote of 56 to 17. App. 4-5.
8
Appellants also challenged the requirement of Wash.Rev.Code §§ 29.42.020 and 29.42.030 (1976) that the two persons elected as county delegates be one man and one woman. Appellants argued that this requirement violates the Washington State Equal Rights Amendment, Wash.Const., Art. XXXI. The Washington Supreme Court rejected the claim, 90 Wash.2d, at 308, 582 P.2d, at 493. Appellants do not seek review here of the "one man and one woman" requirements of the statute. Nor do they raise any claim based on the Equal Protection Clause of the Fourteenth Amendment. See n. 12, infra.
9
90 Wash.2d 298, 582 P.2d 487 (1978).
10
Id., at 309, 582 P.2d, at 493, quoting Storer v. Brown, 415 U.S. 724, 729, 94 S.Ct. 1274, 1278, 39 L.Ed.2d 714.
11
In 23 States, political parties are required by state law to establish state central committees composed of an equal number of committee members from each unit of representation. See Cal.Elec.Code Ann. §§ 8660, 9160 (West Supp.1979); Fla.Stat. § 103.111 (1977); Idaho Code § 34-504 (Supp.1978); Ind.Code § 3-1-2-1 (1976); Iowa Code § 43.111 (1979); Kan.Stat.Ann. § 25-3804 (Supp.1978); Mass.Gen.Laws Ann., ch. 52, § 1 (West 1975); Mich.Comp.Laws § 168.597 (1970); Miss.Code Ann. § 23-1-3 (Supp.1978); Mo.Rev.Stat. § 115.621 (1978); Mont.Rev.Codes Ann. § 23-3403 (Supp.1977); Nev.Rev.Stat. § 293.153 (1975); N.J.Stat.Ann. § 19:5-4 (West Supp.1979); N.D.Cent.Code § 16-17-
11 (1971); Ohio Rev.Code Ann. § 3517.03 (1972); S.C.Code § 7-9-90 (1976); S.D.Comp.Laws Ann. § 12-5-16 (1975); Tenn.Code Ann. § 2-1304 (Supp.1978); Tex.Elec.Code Ann., art. 13.38 (Vernon Supp.1978); Vt.Stat.Ann., Tit. 17, § 730 (1968); Wash.Rev.Code § 29.42.020 (1976); W.Va.Code § 3-1-9 (1979); Wyo.Stat. §§ 22-4-105—22-4-110 (1977). Election laws in five States establish state party central committees in which the number of committee members from each unit of representation bears a rough relationship to party membership. See Ariz.Rev.Stat.Ann. § 16-233 (1975); Colo.Rev.Stat. § 1-14-108(2) (Supp.1976); La.Rev.Stat.Ann. § 18:285(1) (West Supp.1979); Ore.Rev.Stat. § 248.075 (1977); Utah Code Ann. § 20-4-2 (1976).
Political parties are required to establish county central committees comprised of an equal number of committee members from each unit of representation by state law in 21 States. See Cal.Elec.Code Ann. §§ 8820-8825, 9320-9325 (West 1977) (limited to certain counties); Colo.Rev.Stat. § 1-14-108(1) (1973); Fla.Stat. § 103.111 (1977); Idaho Code § 34-502 (Supp.1978); Ind.Code Ann. § 3-1-2-1 (1976); Kan.Stat.Ann. § 25-3802 (1973); La.Rev.Stat.Ann. § 18:285(9) (West Supp.1979); Md.Ann.Code, Art. 33, § 11-2 (Supp.1978); Mass.Gen.Laws Ann., ch. 52, § 9 (West 1975); Mich.Comp.Laws § 168.599 (1970); Miss.Code Ann. § 23-1-3 (Supp.1978); Mo.Rev.Stat. § 115.607 (1978); Mont.Rev.Codes Ann. §§ 23-3401, 23-3402 (Supp.1977); N.J.Stat.Ann. § 19-5-3 (West Supp.1979); Ohio Rev.Code Ann. § 3517.03 (1972); S.C.Code § 7-9-60 (1976); S.D.Comp.Laws Ann. §§ 12-5-13, 12-5-14 (1975); Tex.Elec.Code Ann., Art. 13.18 (Vernon Supp.1978); Wash.Rev.Code § 29.42.030 (1976); W.Va.Code § 3-1-9 (1979); Wis.Stat. § 8.17 (1975).
See Note, Equal Representation of Party Members on Political Party Central Committees, 88 Yale L.J. 167, 168-169, and nn. 5-6 (1978).
12
Since appellants do not claim that these statutory requirements impose any impermissible burdens, we have no occasion to consider whether whatever burdens they do impose are justified by the legitimate state interests served by these requirements. By appellants' own admission, the Committee's electoral functions are performed rarely; moreover, when they are performed, they conform with the one-person, one-vote principle.
"Although the state committee on rare occasions performs certain ballot access functions, see RCW 29.18.150 and 29.42.020 (filling vacancies on certain party tickets and nominating presidential electors) and Wash.Const. art. II, § 15 (selecting nominees for certain interim legislative positions), when it does so it is constitutionally required to comply with the principle of one-person, one-vote. See, e. g., Seergy v. Kings County Republican County Comm., 459 F.2d 308, 313-14 (2d Cir. 1972); Fahey v. Darigan, 405 F.Supp. 1386, 1392 (D.R.I.1975). The state committee has recognized this and has stipulated to the entry of an injunction ordering that the state committee be:
"enjoined from filling vacancies on the Democratic ticket for any federal or state office to be voted on by the electors of more than one county or selecting Democratic nominees for interim legislative appointments to represent multi-county districts by any method that contravenes the one-person, one-vote rule.
"Cummingham v. Washington State Democratic Comm., Civ. No. C75-901 (W.D.Wash., permanent injunction entered Nov. 28, 1977). As a result of this injunction, RCW 29.42.020—which results in gross deviations from one-person, one-vote—has been superseded insofar as applied to the state committee when it performs electoral functions." Brief for Appellants 5 n. 11.
13
In addition to its enumerated functions, the Committee is authorized by Wash.Rev.Code § 29.42.020 (1976) to "[p]erform all functions inherent in such an organization." See n. 1, supra. The Committee's role in internal party affairs, however, is clearly not "inherent" in its performance of the limited electoral functions authorized by statute.
14
Indeed, it is the Charter provisions, rather than the state statute, which appellants themselves cite as authority for their description of the Committee activities at issue here. See Brief for Appellants 4 nn. 5-10. Thus, it is Art. IV(G)(1) of the Charter which provides that the Committee is the statewide governing body, shall raise funds for candidates, and shall exercise the party's policymaking functions. And it is subsection (2) of that same Article which authorizes the Committee to direct the party's administrative apparatus, while subsection (5) requires it to meet at least four times per year. Finally, the source of the Committee's authority to conduct workshops for candidates is found in Art. VII(C)(1) of the Charter.
15
Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595, upon which appellants place their primary reliance, does not support their claim here. In Cousins, unlike this case, there was a substantial burden on associational freedoms. This fact alone distinguishes the two cases, and renders Cousins inapposite.
| 23
|
442 U.S. 178
99 S.Ct. 2235
60 L.Ed.2d 805
UNITED STATES, Petitioner,v.Hugh J. ADDONIZIO et al.
No. 78-156.
Argued March 27, 1979.
Decided June 4, 1979.
Syllabus
Held: A federal prisoner's allegation that a postsentencing change in the policies of the United States Parole Commission has prolonged his actual imprisonment beyond the period intended by the sentencing judge will not support a collateral attack on the original sentence under 28 U.S.C. § 2255. Pp. 184-190.
(a) The claimed error that the judge was incorrect in his assumptions about the future course of parole proceedings does not meet any of the established standards of collateral attack, where there is no claim of a constitutional violation, the sentence imposed was within the statutory limits, and the proceeding was not infected with any error of fact or law of a "fundamental" character that renders the entire proceeding irregular and invalid. The change in Parole Commission policies involved here considering the seriousness of the offense as a significant factor in determining whether a prisoner should be granted parole affected the way in which the court's judgment and sentence would be performed but did not affect the lawfulness of the judgment itself, then or now; and there is no claim that the action taken by the sentencing judge was unconstitutional or was based on misinformation of constitutional magnitude. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109, and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, distinguished. Pp. 2240-2241.
(b) There is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge. Under the present statutory scheme, the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term; and while the judge may have expectations as to when release is likely, the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations, and to use collateral attack as a mechanism for ensuring that these expectations are carried out, would substantially undermine the congressional decision to entrust release determinations to the Commission, not the courts, and nothing in § 2255 supports—let alone mandates—such a frustration of congressional intent. Thus, subsequent actions taken by the Parole Commission—whether or not such actions accord with a trial judge's expectations at the time of sentencing do not retroactively affect the validity of the final judgment itself, and do not provide a basis for collateral attack on the sentence pursuant to § 2255. Pp. 187-190.
3 Cir., 573 F.2d 147, reversed.
Frank H. Easterbrook, Washington, D. C., for petitioner.
Michael Edelson, Paterson, N. J., for respondent Addonizio.
Leon J. Greenspan, White Plains, N. Y., for respondents Whelan and Flaherty.
Mr. Justice STEVENS delivered the opinion of the Court.
1
Three prisoners have alleged that a postsentencing change in the policies of the United States Parole Commission has prolonged their actual imprisonment beyond the period intended by the sentencing judge. The question presented is whether this type of allegation will support a collateral attack on the original sentence under 28 U.S.C. § 2255.1 We hold that it will not.
2
* With respect to the legal issue presented, the claims before us are identical. To bring this issue into sharp focus, we accept for purposes of decision Addonizio's view of the facts and the relevant aspects of the Parole Commission's practices.
3
After his conviction in the United States District Court for the District of New Jersey, on September 22, 1970, Addonizio was sentenced to 10 years' imprisonment and a fine of $25,000. Factors which led the District Judge to impose that sentence included the serious character of Addonizio's offenses,2 and the judge's expectation that exemplary institutional behavior would lead to Addonizio's release when he became eligible for parole after serving one-third of his sentence.3 The judge did not contemplate that the Parole Commission might rely on the seriousness of the offense as a reason for refusing a parole which Addonizio would otherwise receive.
4
In 1973, the Parole Commission markedly changed its policies.4 Under its new practices the gravity of the offense became a significant factor in determining whether a prisoner should be granted parole. Addonizio became eligible for parole on July 3, 1975. After hearings, the Parole Commission twice refused to release him, expressly basing its refusal on the serious character of his crimes.5
5
Thereafter, Addonizio invoked the District Court's jurisdiction under 28 U.S.C. § 2255 and moved for resentencing. Following the Third Circuit's decision in United States v. Salerno, 538 F.2d 1005, 1007 (1976), the District Court accepted jurisdiction, found that the Parole Commission had not given Addonizio the kind of "meaningful parole hearing" that the judge had anticipated when sentence was imposed, and reduced his sentence to the time already served. The judge stated that he had "anticipated—assuming an appropriate institutional adjustment and good behavior while confined—that [Addonizio] would be actually confined for a period of approximately three and one-half to four years of the ten-year sentence." This "sentencing expectation" was frustrated by the Parole Commission's subsequent adoption of new standards and procedures.
6
The Court of Appeals affirmed. 573 F.2d 147. Because of a conflict with the decision of the Ninth Circuit holding that § 2255 does not give district courts this type of resentencing authority,6 we granted the Government's petition for certiorari in Addonizio's case and in the consolidated case of two other prisoners in which similar relief was granted.7 439 U.S. 1045, 99 S.Ct. 719, 58 L.Ed.2d 704.
II
7
We decide only the jurisdictional issue. We do not consider the Government's alternative argument that the significance of the changes in the Parole Commission's procedures has been exaggerated because it always attached some weight to the character of the offense in processing parole applications. Nor do we have any occasion to consider whether the new guidelines are consistent with the Parole Commission and Reorganization Act of 1976, 90 Stat. 219;8 or whether their enforcement may violate the Ex Post Facto Clause of the Constitution.9
III
8
When Congress enacted § 2255 in 1948, it simplified the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but it did not purport to modify the basic distinction between direct review and collateral review. It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.10 The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice.11 The question in this case is whether an error has occurred that is sufficiently fundamental to come within those narrow limits.
9
Under § 2255, the sentencing court is authorized to discharge or resentence a defendant if it concludes that it "was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." This statute was intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement, by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. United States v. Hayman, 342 U.S. 205, 216-217, 72 S.Ct. 263, 271, 96 L.Ed. 232.
10
While the remedy is in this sense comprehensive, it does not encompass all claimed errors in conviction and sentencing. Habeas corpus has long been available to attack convictions and sentences entered by a court without jurisdiction. See, e. g., Ex parte Watkins, 3 Pet. 193, 202-203, 7 L.Ed. 650 (Marshall, C. J.). In later years, the availability of the writ was expanded to encompass claims of constitutional error as well. See Waley v. Johnston, 316 U.S. 101, 104-105, 62 S.Ct. 964, 965-966, 86 L.Ed. 1302; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. But unless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited. Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067. The Court has held that an error of law does not provide a basis for collateral attack unless the claimed error constituted "a fundamental defect which inherently results in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417.
11
Similar limitations apply with respect to claimed errors of fact. The justification for raising such errors in a § 2255 proceeding, as amicus here points out,12 is that traditionally they could have been raised by a petition for a writ of coram nobis, and thus fall within § 2255's provision for vacating sentences that are "otherwise subject to collateral attack." Butcoram nobis jurisdiction has never encompassed all errors of fact; instead, it was of a limited scope, existing "in those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid." United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129. Thus, the writ of coram nobis was "available to bring before the court that pronounced the judgment errors in matters of fact which had not been put in issue or passed upon and were material to the validity and regularity of the legal proceeding itself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict or interlocutory judgment." Id., at 68, 35 S.Ct., at 19.
12
The claimed error here—that the judge was incorrect in his assumptions about the future course of parole proceedings—does not meet any of the established standards of collateral attack. There is no claim of a constitutional violation; the sentence imposed was within the statutory limits; and the proceeding was not infected with any error of fact or law of the "fundamental" character that renders the entire proceeding irregular and invalid.
13
The absence of any error of this nature or magnitude distinguishes Addonizio's claim from those in prior cases, upon which he relies, in which collateral attacks were permitted. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109, for example, like this case, involved a claim that a judgment that was lawful when it was entered should be set aside because of a later development. The subsequent development in that case, however, was a change in the substantive law that established that the conduct for which petitioner had been convicted and sentenced was lawful. To have refused to vacate his sentence would surely have been a "complete miscarriage of justice," since the conviction and sentence were no longer lawful. The change in Parole Commission policies involved in this case is not of the same character: this change affected the way in which the court's judgment and sentence would be performed but it did not affect the lawfulness of the judgment itself—then or now. Nor is United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, analogous to the present case. In that case, the Court ordered resentencing of a defendant whose original sentence had been imposed at least in part upon the basis of convictions secured without the assistance of counsel. But the error underlying the sentence in Tucker, as the Court emphasized, was "misinformation of constitutional magnitude." Id., at 447, 92 S.Ct., at 591. We have held that the constitutional right to the assistance of counsel is itself violated when uncounseled convictions serve as the basis for enhanced punishment. Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319. Whether or not the Parole Commission action in this case was constitutional, a question not presented here, there is no claim that the action taken by the sentencing judge was unconstitutional, or was based on "misinformation of constitutional magnitude."
14
Our prior decisions, then, provide no support for Addonizio's claim that he is entitled to relief under § 2255. According to all of the objective criteria—federal jurisdiction, the Constitution, and federal law—the sentence was and is a lawful one. And in our judgment, there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge.
15
As a practical matter, the subjective intent of the sentencing judge would provide a questionable basis for testing the validity of his judgment. The record made when Judge Barlow pronounced sentence against Addonizio, for example, is entirely consistent with the view that the judge then thought that this was an exceptional case in which the severity of Addonizio's offense should and would be considered carefully by the Parole Commission when Addonizio became eligible for parole. If the record is ambiguous, and if a § 2255 motion is not filed until years later, it will often be difficult to reconstruct with any certainty the subjective intent of the judge at the time of sentencing. Regular attempts to do so may well increase the risk of inconsistent treatment of defendants; on the other hand, the implementation of the Parole Commission's policies may reduce that risk.
16
Nothing in the statutory scheme directs sentencing courts to engage in this task on collateral attack; quite to the contrary, the proposed system of sentencing review would be inconsistent with that established by Congress. The decision as to when a lawfully sentenced defendant shall actually be released has been committed by Congress, with certain limitations, to the discretion of the Parole Commission.13 Whether wisely or not, Congress has decided that the Commission is in the best position to determine when release is appropriate, and in doing so, to moderate the disparities in the sentencing practices of individual judges.14 The authority of sentencing judges to select precise release dates is, by contrast, narrowly limited: the judge may select an early parole eligibility date, but that guarantees only that the defendant will be considered at that time by the Parole Commission.15 And once a sentence has been imposed, the trial judge's authority to modify it is also circumscribed. Federal Rule Crim.Proc. 35 now authorizes district courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal.16 The time period, however, is jurisdictional and may not be extended.17 The import of this statutory scheme is clear: the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term. The judge may well have expectations as to when release is likely. But the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations, and to use collateral attack as a mechanism for ensuring that these expectations are carried out, would substantially undermine the congressional decision to entrust release determinations to the Commission and not the courts. Nothing in § 2255 supports—let alone mandates—such a frustration of congressional intent.
17
Accordingly, without reaching any question as to the validity of the Parole Commission's actions, either in promulgating its new guidelines or in denying Addonizio's applications for parole, we hold that subsequent actions taken by the Parole Commission—whether or not such actions accord with a trial judge's expectations at the time of sentencing—do not retroactively affect the validity of the final judgment itself. The facts alleged by the prisoners in these cases do not provide a basis for a collateral attack on their respective sentences pursuant to § 2255.
18
The judgments of the Court of Appeals are therefore reversed.
19
It is so ordered.
20
Mr. Justice BRENNAN took no part in the decision of this case.
21
Mr. Justice POWELL took no part in the consideration or decision of this case.
1
Title 28 U.S.C. § 2255 provides:
"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
* * * * *
"If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate."
2
At the time he imposed sentence, Judge Barlow stated:
"Weighed against these virtues, [Mr. Addonizio's record of public service] . . . is his conviction by a jury in this court of crimes of monumental proportion, the enormity of which can scarcely be exaggerated and the commission of which create the gravest implications for our form of government.
"Mr. Addonizio, and the other defendants here, have been convicted of one count of conspiring to extort and 63 substantive counts of extorting hundreds of thousands of dollars from persons doing business with the City of Newark. An intricate conspiracy of this magnitude, I suggest to you, Mr. Hellring [defense counsel], could have never succeeded without the then-Mayor Addonizio's approval and participation.
"These were no ordinary criminal acts . . .. These crimes for which Mr. Addonizio and the other defendants have been convicted represent a pattern of continuous, highly-organized, systematic criminal extortion over a period of many years, claiming many victims and touching many more lives.
"Instances of corruption on the part of elected and appointed governmental officials are certainly not novel to the law, but the corruption disclosed here, it seems to the Court, is compounded by the frightening alliance of criminal elements and public officials, and it is this very kind of totally destructive conspiracy that was conceived, organized and executed by these defendants.
". . . It is impossible to estimate the impact upon—and the cost of—these criminal acts to the decent citizens of Newark, and, indeed, to the citizens of the State of New Jersey, in terms of their frustration, despair and disillusionment.
* * * * *
"Their crimes, in the judgment of this Court, tear at the very heart of our civilized form of government and of our society. The people will not tolerate such conduct at any level of government, and those who use their public office to betray the public trust in this manner can expect from the courts only the gravest consequences.
* * * * *
"It is, accordingly, the sentence of this Court that the defendant Hugh J. Addonizio shall be committed to the custody of the Attorney General of the United States for a term of ten years, and that, additionally, the defendant Hugh J. Addonizio shall pay a fine of $25,000. That is all." 573 F.2d 147, 154.
3
In his opinion granting Addonizio relief under § 2255 in 1977, Judge Barlow stated:
"At the time sentence was imposed, this Court expected that petitioner would receive a meaningful parole hearing—that is, a determination based on his institutional record and the likelihood of recidivism—upon the completion of one-third (1/3) of his sentence. The Court anticipated—assuming an appropriate institutional adjustment and good behavior while confined—that petitioner would be actually confined for a period of approximately three and one-half to four years of the ten year sentence, in view of the fact that he was a first-offender and that there appeared to be little probability of recidivism, given the circumstances of the case and his personal and social history. This sentencing expectation was based on the court's understanding which was consistent with generally-held notions—of the operation of the parole system in 1970." App. to Pet. for Cert. 28a-29a (footnotes omitted).
4
The Commission commenced using guidelines on a trial basis in 1972 and started to apply them throughout the Nation in November 1973. See 38 Fed.Reg. 31942 (1973). The Commission's present guidelines are codified at 28 CFR § 2.20 (1978). The use of guidelines is now required by statute. See 18 U.S.C. §§ 4203(a)(1) and 4206(a).
5
As Judge Aldisert noted in his opinion for the Third Circuit, the comments made by the Parole Commission on January 13, 1977, explaining its denial of parole are remarkably similar to the reasons given by the trial judge at the time sentence was imposed. The Commission stated:
"Your offense behavior has been rated as very high severity. Your salient factor score is 11. You have been in custody a total of 57 months at time of hearing. Guidelines established by the Commission for adult cases which consider the above factors suggest a range of 26-36 months to be served before release for cases with good institutional adjustment. After careful consideration of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense was part of an ongoing criminal conspiracy lasting from 1965 to 1968, which consisted of many separate offenses committed by you and approximately 14 other co-conspirators. As the highest elected official in the City of Newark, you were convicted of an extortion conspiracy in which, under color of your official authority, you and your co-conspirators conspired to delay, impede, obstruct, and otherwise thwart construction in the City of Newark in order to obtain a percentage of contracts for the privilege of working on city construction projects.
"Because of the magnitude of this crime (money extorted totalling approximately $241,000) its economic effect on innocent citizens of Newark, and because the offense involved a serious breach of public trust over a substantial period of time, a decision above the guidelines is warranted. Parole at this time would depreciate the seriousness of the offense and promote disrespect for the law." 573 F.2d, at 153-154.
6
Bonanno v. United States, 571 F.2d 588 (CA9 1978), cert. dismissed 439 U.S. 1136, 99 S.Ct. 1061, 59 L.Ed.2d 449.
7
United States v. Whelan & Flaherty. In that case, two federal prisoners filed motions under 28 U.S.C. §§ 2241 and 2255 challenging their confinement. The § 2241 motion was denied by the District Court; the Court of Appeals affirmed, 573 F.2d 147, and the prisoners did not seek further review. In the § 2255 motion, which is at issue here, these respondents claimed that the Parole Commission's action frustrated the intent of Judge Shaw, who had originally sentenced them and who had since died. The case was assigned to Judge Biunno, who took the position that "the real issue is whether the Parole Commission's denial of parole was arbitrary and capricious," 428 F.Supp. 379, 381, and concluded that it was not. The Court of Appeals vacated that decision and directed Judge Biunno to reconsider the case to determine whether Judge Shaw's sentencing intent had been frustrated. Proceedings on remand have resulted in the release of both respondents.
8
See Geraghty v. United States Parole Comm'n, 579 F.2d 238 (CA3 1978), cert. granted, 440 U.S. 945, 99 S.Ct. 1420, 59 L.Ed.2d 632 (1979).
9
See Rodriguez v. United States Parole Comm'n, 594 F.2d 170 (CA7 1979).
10
See Adams v. United States ex rel. McCann, 317 U.S. 269, 274, 63 S.Ct. 236, 239, 87 L.Ed. 268 ("Of course the writ of habeas corpus should not do service for an appeal. . . . This rule must be strictly observed if orderly appellate procedure is to be maintained"); Sunal v. Large, 332 U.S. 174, 181-182, 67 S.Ct. 1588, 1592, 91 L.Ed. 1982; Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417.
11
Inroads on the concept of finality tend to undermine confidence in the integrity of our procedures. See, e. g., F. James, Civil Procedure 517-518 (1965). Moreover, increased volume of judicial work associated with the processing of collateral attacks inevitably impairs and delays the orderly administration of justice. Because there is no limit on the time when a collateral attack may be made, evidentiary hearings are often inconclusive and retrials may be impossible if the attack is successful. See Stone v. Powell, 428 U.S. 465, 491 n. 31, 96 S.Ct. 3037, 3051 n. 31, 49 L.Ed.2d 1067; Henderson v. Kibbe, 431 U.S. 145, 154 n. 13, 97 S.Ct. 1730, 1736 n. 13, 52 L.Ed.2d 203.
12
See Brief for Lewisburg Prison Project, as Amicus Curiae 10-12.
13
A federal prisoner is entitled to release at the expiration of his maximum sentence less "good time" computed according to 18 U.S.C. § 4161. In addition, any prisoner sentenced to more than 5 years' imprisonment is entitled to be released on parole after serving two-thirds of each consecutive term or 30 years, whichever is first, unless the Commission determines that the prisoner "has seriously or frequently violated institution rules" or that there is a reasonable probability that he would commit further crimes. 18 U.S.C. § 4206(d). The Commission has substantial discretion to determine whether a prisoner should be released on parole, once he is eligible, prior to the point where release is mandated by statute. Title 18 U.S.C. § 4203 (1970 ed.), in effect when Addonizio was sentenced, provided:
"If it appears to the Board . . . that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole."
Under the statute now in effect, 18 U.S.C. § 4206, the Commission is to consider the risk of recidivism and whether "release would . . . depreciate the seriousness of [the] offense or promote disrespect for the law."
14
See generally S.Conf.Rep.No.94-648, p. 19 (1976).
15
The trial court may set a defendant's eligibility for parole at any point up to one-third of the maximum sentence imposed, see 18 U.S.C. §§ 4205(a), (b); 18 U.S.C. §§ 4202, 4208 (1970 ed.). Whether the defendant will actually be paroled at that time is the decision of the Parole Commission. See United States v. Grayson, 438 U.S. 41, 47, 98 S.Ct. 2610, 2614, 57 L.Ed.2d 582 ("[T]he extent of a federal prisoner's confinement is initially determined by the sentencing judge, who selects a term within an often broad, congressionally prescribed range; release on parole is then available on review by the United States Parole Commission, which, as a general rule, may conditionally release a prisoner any time after he serves one-third of the judicially-fixed term"). The trial judge is precluded from effectively usurping that function by splitting a lengthy sentence between a stated period of probation and imprisonment: probation may not be combined with a sentence entailing incarceration of more than six months. 18 U.S.C. § 3651.
16
Prior to the adoption of Rule 35, the trial courts had no such authority. "The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it." United States v. Murray, 275 U.S. 347, 358, 48 S.Ct. 146, 149, 72 L.Ed. 309. This rule was applied even though the change related only to the second of a pair of consecutive sentences which itself was not being served at the time. Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62.
17
See Fed.Rule Crim.Proc. 45(b); United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259.
| 01
|
442 U.S. 140
99 S.Ct. 2213
60 L.Ed.2d 777
COUNTY COURT OF ULSTER COUNTY, NEW YORK, et al., Petitioners,v.Samuel ALLEN et al.
No. 77-1554.
Argued Feb. 22, 1979.
Decided June 4, 1979.
Syllabus
Respondents (three adult males) and a 16-year-old girl (Jane Doe) were jointly tried in a New York state court on charges, inter alia, of illegally possessing two loaded handguns found in an automobile in which they were riding when it was stopped for speeding. The guns had been positioned crosswise in Jane Doe's open handbag on either the front floor or front seat on the passenger side where she was sitting. All four defendants objected to the introduction of the guns into evidence, arguing that the State had not adequately demonstrated a connection between the guns and the defendants. The trial court overruled the objection, relying on the presumption of possession created by a New York statute providing that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle, except when, inter alia, the firearm is found "upon the person" of one of the occupants. The trial court also denied respondents' motion to dismiss the charges on the alleged ground that such exception applied because the guns were found on Jane Doe's person, the court concluding that the applicability of the exception was a question of fact for the jury. After being instructed that it was entitled to infer possession from the defendants' presence in the car, to consider all circumstances tending to support or contradict such inference, and to decide the matter for itself without regard to how much evidence the defendants introduced, the jury convicted all four defendants of illegal possession of the handguns. Defendants' post-trial motion in which they challenged the constitutionality of the New York statute as applied to them, was denied. Both the intermediate appellate court and the New York Court of Appeals affirmed the convictions, the latter court holding that it was a jury question whether the guns were on Jane Doe's person, treating this question as having been resolved in the prosecution's favor, and concluding that therefore the presumption applied and that there was sufficient evidence to support the convictions. The court also summarily rejected the argument that the presumption was unconstitutional as applied in this case. Respondents then filed a habeas corpus petition in Federal District Court, contending that they were denied due process of law by the application of the statutory presumption. The District Court issued the writ, holding that respondents had not "deliberately bypassed" their federal claim by their actions at trial and that the mere presence of two guns in a woman's handbag in a car could not reasonably give rise to the inference that they were in the possession of three other persons in the car. The United States Court of Appeals affirmed, holding that the New York Court of Appeals had decided respondents' constitutional claim on its merits rather than on any independent state procedural ground that might have barred collateral relief and, without deciding whether the presumption was constitutional as applied in this case, that the statute is unconstitutional on its face.
Held :
1. The District Court had jurisdiction to entertain respondents' claim that the statutory presumption is unconstitutional. There is no support in New York law or the history of this litigation for an inference that the New York courts decided such claim on an independent and adequate state procedural ground that bars the federal courts from addressing the issue on habeas corpus. If neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim. Pp. 147-154.
2. The United States Court of Appeals erred in deciding the facial constitutionality issue. In analyzing a mandatory presumption, which the jury must accept even if it is the sole evidence of an element of an offense (as opposed to a purely permissive presumption, which allows, but does not require, the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant), it is irrelevant that there is ample evidence in the record other than the presumption to support a conviction. Without determining whether the presumption in this case was mandatory, the Court of Appeals analyzed it on its face as if it were, despite the fact that the state trial judge's instructions made it clear that it was not. Pp. 2223-2227.
3. As applied to the facts of this case, the statutory presumption is constitutional. Under the circumstances, the jury would have been entirely reasonable in rejecting the suggestion that the guns were in Jane Doe's sole possession. Assuming that the jury did reject it, the case is tantamount to one in which the guns were lying on the car's floor or seat in the plain view of respondents, and in such a case it is surely rational to infer that each of the respondents was fully aware of the guns' presence and had both the ability and the intent to exercise dominion and control over them. The application of the presumption in this case thus comports with the standard, Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, that there be a "rational connection" between the basic facts that the prosecution proved and the ultimate fact presumed, and that the latter is "more likely than not to flow from" the former. Moreover, the presumption should not be judged by a more stringent "reasonable doubt" test, insofar as it is a permissive rather than a mandatory presumption. Pp. 163-167.
568 F.2d 998, reversed.
Eileen Shapiro, New York City, for petitioners.
Michael A. Young, New York City, for respondents.
Mr. Justice STEVENS delivered the opinion of the Court.
1
A New York statute provides that, with certain exceptions, the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle.1 The United States Court of Appeals for the Second Circuit held that respondents may challenge the constitutionality of this statute in a federal habeas corpus proceeding and that the statute is "unconstitutional on its face." 568 F.2d 998, 1009. We granted certiorari to review these holdings and also to consider whether the statute is constitutional in its application to respondents. 439 U.S. 815, 99 S.Ct. 75, 58 L.Ed.2d 106.
2
Four persons, three adult males (respondents) and a 16-year-old girl (Jane Doe, who is not a respondent here), were jointly tried on charges that they possessed two loaded handguns, a loaded machinegun, and over a pound of heroin found in a Chevrolet in which they were riding when it was stopped for speeding on the New York Thruway shortly after noon on March 28, 1973. The two large-caliber handguns, which together with their ammunition weighed approximately six pounds, were seen through the window of the car by the investigating police officer. They were positioned crosswise in an open handbag on either the front floor or the front seat of the car on the passenger side where Jane Doe was sitting. Jane Doe admitted that the handbag was hers.2 The machinegun and the heroin were discovered in the trunk after the police pried it open. The car had been borrowed from the driver's brother earlier that day; the key to the trunk could not be found in the car or on the person of any of its occupants, although there was testimony that two of the occupants had placed something in the trunk before embarking in the borrowed car.3 The jury convicted all four of possession of the handguns and acquitted them of possession of the contents of the trunk.
3
Counsel for all four defendants objected to the introduction into evidence of the two handguns, the machinegun, and the drugs, arguing that the State had not adequately demonstrated a connection between their clients and the contraband. The trial court overruled the objection, relying on the presumption of possession created by the New York statute. Tr. 474-483. Because that presumption does not apply if a weapon is found "upon the person" of one of the occupants of the car, see n. 1, supra, the three male defendants also moved to dismiss the charges relating to the handguns on the ground that the guns were found on the person of Jane Doe. Respondents made this motion both at the close of the prosecution's case and at the close of all evidence. The trial judge twice denied it, concluding that the applicability of the "upon the person" exception was a question of fact for the jury. Tr. 544-557, 589-590.
4
At the close of the trial, the judge instructed the jurors that they were entitled to infer possession from the defendants' presence in the car. He did not make any reference to the "upon the person" exception in his explanation of the statutory presumption, nor did any of the defendants object to this omission or request alternative or additional instructions on the subject.
5
Defendants filed a post-trial motion in which they challenged the constitutionality of the New York statute as applied in this case. The challenge was made in support of their argument that the evidence, apart from the presumption, was insufficient to sustain the convictions. The motion was denied, id., at 775-776, and the convictions were affirmed by the Appellate Division without opinion. People v. Lemmons, 49 A.D.2d 639, 370 N.Y.S.2d 243 (1975).
6
The New York Court of Appeals also affirmed. People v. Lemmons, 40 N.Y.2d 505, 387 N.Y.S.2d 97, 354 N.E.2d 836 (1976). It rejected the argument that as a matter of law the guns were on Jane Doe's person because they were in her pocketbook. Although the court recognized that in some circumstances the evidence could only lead to the conclusion that the weapons were in one person's sole possession, it held that this record presented a jury question on that issue. Since the defendants had not asked the trial judge to submit the question to the jury, the Court of Appeals treated the case as though the jury had resolved this fact question in the prosecution's favor. It therefore concluded that the presumption did apply and that there was sufficient evidence to support the convictions. Id., at 509-512, 387 N.Y.S.2d, at 99-101, 354 N.E.2d, at 839-841. It also summarily rejected the argument that the presumption was unconstitutional as applied in this case. See infra, at 153-154.
7
Respondents filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York contending that they were denied due process of law by the application of the statutory presumption of possession. The District Court issued the writ, holding that respondents had not "deliberately bypassed" their federal claim by their actions at trial and that the mere presence of two guns in a woman's handbag in a car could not reasonably give rise to the inference that they were in the possession of three other persons in the car. App. to Pet. for Cert. 33a-36a.
8
The Court of Appeals for the Second Circuit affirmed, but for different reasons. First, the entire panel concluded that the New York Court of Appeals had decided respondents' constitutional claim on its merits rather than on any independent state procedural ground that might have barred collateral relief. Then, the majority of the court, without deciding whether the presumption was constitutional as applied in this case, concluded that the statute is unconstitutional on its face because the "presumption obviously sweeps within its compass (1) many occupants who may not know they are riding with a gun (which may be out of their sight), and (2) many who may be aware of the presence of the gun but not permitted access to it."4 Concurring separately, Judge Timbers agreed with the District Court that the statute was unconstitutional as applied but considered it improper to reach the issue of the statute's facial constitutionality. 568 F.2d, at 1011-1012.
9
The petition for a writ of certiorari presented three questions: (1) whether the District Court had jurisdiction to entertain respondents' claim that the presumption is unconstitutional; (2) whether it was proper for the Court of Appeals to decide the facial constitutionality issue; and (3) whether the application of the presumption in this case is unconstitutional. We answer the first question in the affirmative, the second two in the negative. We accordingly reverse.
10
* This is the sixth time that respondents have asked a court to hold that it is unconstitutional for the State to rely on the presumption because the evidence is otherwise insufficient to convict them.5 No court has refused to hear the claim or suggested that it was improperly presented. Nevertheless, because respondents made it for the first time only after the jury had announced its verdict, and because the state courts were less than explicit in their reasons for rejecting it, the question arises whether the New York courts did so on the basis of an independent and adequate state procedural ground that bars the federal courts from addressing the issue on habeas corpus.6 See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594; Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837. We conclude that there is no support in either the law of New York or the history of this litigation for an inference that the New York courts decided respondents' constitutional claim on a procedural ground, and that the question of the presumption's constitutionality is therefore properly before us. See Franks v. Delaware, 438 U.S. 154, 161-162, 98 S.Ct. 2674, 2679-2680, 57 L.Ed.2d 667; Mullaney v. Wilbur, 421 U.S. 684, 704-705, 95 S.Ct. 1881, 1892-1893, 44 L.Ed.2d 508. (REHNQUIST, J., concurring).7
11
New York has no clear contemporaneous-objection policy that applies in this case.8 No New York court, either in this litigation or in any other case that we have found, has ever expressly refused on contemporaneous-objection grounds to consider a post-trial claim such as the one respondents made. Cf. Wainwright v. Sykes, supra, 433 U.S., at 74, 97 S.Ct., at 2499. Indeed, the rule in New York appears to be that "insufficiency of the evidence" claims may be raised at any time until sentence has been imposed.9 Moreover, even if New York's contemporaneous-objection rule did generally bar the type of postverdict insufficiency claim that respondents made, there are at least two judicially created exceptions to that rule that might nonetheless apply in this case.10
12
The conclusion that the New York courts did not rely on a state procedural ground in rejecting respondents' constitutional claim is supported, not only by the probable unavailability in New York law of any such ground, but also by three aspects of this record. First, the prosecution never argued to any state court that a procedural default had occurred. This omission surely suggests that the New York courts were not thinking in procedural terms when they decided the issue. Indeed, the parties did not even apprise the appellate courts of the timing of respondents' objection to the presumption; a procedural default would not have been discovered, therefore, unless those courts combed the transcript themselves. If they did so without any prompting from the parties and based their decision on what they found, they surely would have said so.
13
Second, the trial court ruled on the merits when it denied respondents' motion to set aside the verdict. Tr. 775-776. Because it was not authorized to do so unless the issue was preserved for appeal, the trial court implicitly decided that there was no procedural default.11 The most logical inference to be drawn from the Appellate Division's unexplained affirmance is that that court accepted not only the judgment but also the reasoning of the trial court.
14
Third, it is apparent on careful examination that the New York Court of Appeals did not ignore respondents' constitutional claim in its opinion. Instead, it summarily rejected the claim on its merits. That court had been faced with the issue in several prior cases and had always held the presumption constitutional. Indeed, the State confined its brief on the subject in the Court of Appeals to a string citation of some of those cases. Respondents' Brief in the Court of Appeals, p. 9. It is not surprising, therefore, that the Court of Appeals confined its discussion of the issue to a reprise of the explanation that its prior cases have traditionally given for the statute in holding it constitutional and a citation of two of those cases. 40 N.Y.2d, at 509-511, 387 N.Y.S.2d, at 99-100, 354 N.E.2d, at 839-840, citing People v. McCaleb, 25 N.Y.2d 394, 306 N.Y.S.2d 889, 255 N.E.2d 136 (1969); People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546 (1975). Although it omits the word "constitutional," the most logical interpretation of this discussion is that it was intended as a passing and summary disposition of an issue that had already been decided on numerous occasions. This interpretation is borne out by the fact that the dissenting members of the Court of Appeals unequivocally addressed the merits of the constitutional claim12 and by the fact that three Second Circuit Judges, whose experience with New York practice is entitled to respect, concluded that the State's highest court had decided the issue on its merits. 568 F.2d, at 1000. See Bishop v. Wood, 426 U.S. 341, 345-346, 96 S.Ct. 2074, 2077-2078, 48 L.Ed.2d 684; Huddleston v. Dwyer, 322 U.S. 232, 237, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246.
15
Our conclusion that it was proper for the federal courts to address respondents' claim is confirmed by the policies informing the "adequate state ground" exception to habeas corpus jurisdiction. The purpose of that exception is to accord appropriate respect to the sovereignty of the States in our federal system. Wainwright v. Sykes, supra, 433 U.S., at 88, 97 S.Ct., at 2507. But if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.13
II
16
Although 28 U.S.C. § 2254 authorizes the federal courts to entertain respondents' claim that they are being held in custody in violation of the Constitution, it is not a grant of power to decide constitutional questions not necessarily subsumed within that claim. Federal courts are courts of limited jurisdiction. They have the authority to adjudicate specific controversies between adverse litigants over which and over whom they have jurisdiction. In the exercise of that authority, they have a duty to decide constitutional questions when necessary to dispose of the litigation before them. But they have an equally strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration. E. g., New York Transit Authority v. Beazer, 440 U.S. 568, 582-583, 99 S.Ct. 1355, 1363-1364, 59 L.Ed.2d 587.
17
A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (and cases cited). A limited exception has been recognized for statutes that broadly prohibit speech protected by the First Amendment. Id., at 611-616, 93 S.Ct., at 2915-2918. This exception has been justified by the overriding interest in removing illegal deterrents to the exercise of the right of free speech. E. g., Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408; Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22. That justification, of course, has no application to a statute that enhances the legal risks associated with riding in vehicles containing dangerous weapons.
18
In this case, the Court of Appeals undertook the task of deciding the constitutionality of the New York statute "on its face." Its conclusion that the statutory presumption was arbitrary rested entirely on its view of the fairness of applying the presumption in hypothetical situations—situations, indeed, in which it is improbable that a jury would return a conviction,14 or that a prosecution would ever be instituted.15 We must accordingly inquire whether these respondents had standing to advance the arguments that the Court of Appeals considered decisive. An analysis of our prior cases indicates that the answer to this inquiry depends on the type of presumption that is involved in the case.
19
Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime—that is, an "ultimate" or "elemental" fact—from the existence of one or more "evidentiary" or "basic" facts. E. g., Barnes v. United States, 412 U.S. 837, 843-844, 93 S.Ct. 2357, 2361-2362, 37 L.Ed.2d 380; Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1244, 87 L.Ed.2d 1519; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 42, 31 S.Ct. 136, 137, 55 L.Ed. 78. The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder's freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device's constitutional validity in a given case remains constant: the device must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368; Mullaney v. Wilbur, 421 U.S., at 702-703 n. 31, 95 S.Ct., at 1891-1892 n. 31. The most common evidentiary device is the entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. See, e. g., Barnes v. United States, supra, 412 U.S., at 840 n. 3, 93 S.Ct., at 2360 n. 3. In that situation the basic fact may constitute prima facie evidence of the elemental fact. See, e. g., Turner v. United States, 396 U.S. 398, 402 n. 2, 90 S.Ct. 642, 645, n. 2, 24 L.Ed.2d 610. When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. E. g., Barnes v. United States, supra, 412 U.S., at 845, 93 S.Ct., at 2362; Turner v. United States, supra, 396 U.S., at 419-424, 90 S.Ct., at 653-656. See also United States v. Gainey, 380 U.S. 63, 67-68, 69-70, 85 S.Ct. 754, 757-758, 758-759, 13 L.Ed.2d 658. Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the "beyond a reasonable doubt" standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.
20
A mandatory presumption is a far more troublesome evidentiary device. For it may affect not only the strength of the "no reasonable doubt" burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. E. g., Turner v. United States, supra, at 401-402, and n. 1, 90 S.Ct., at 644-645, and n. 1; Leary v. United States, 395 U.S. 6, 30, 89 S.Ct. 1532, 1545, 23 L.Ed.2d 57; United States v. Romano, 382 U.S. 136, 137, and n. 4, 138, 143, 86 S.Ct. 279, 280, and n. 4, 281, 283, 15 L.Ed.2d 210; Tot v. United States, supra, 319 U.S., at 469, 63 S.Ct., at 1245.16 In this situation, the Court has generally examined the presumption on its face to determine the extent to which the basic and elemental facts coincide. E. g., Turner v. United States, supra, 396 U.S., at 408-418, 90 S.Ct., at 648-653; Leary v. United States, supra, 395 U.S., at 45-52, 89 S.Ct., at 1552-1553; United States v. Romano, supra, 382 U.S., at 140-141, 86 S.Ct., at 281-282; Tot v. United States, 319 U.S., at 468, 63 S.Ct., at 1245. To the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption's constitutional validity is logically divorced from those facts and based on the presumption's accuracy in the run of cases.17 It is for this reason that the Court has held it irrelevant in analyzing a mandatory presumption, but not in analyzing a purely permissive one, that there is ample evidence in the record other than the presumption to support a conviction. E. g., Turner v. United States, 396 U.S., at 407, 90 S.Ct., at 647; Leary v. United States, 395 U.S., at 31-32, 89 S.Ct., at 1545-1546; United States v. Romano, 382 U.S., at 138-139, 86 S.Ct., at 280-281.
21
Without determining whether the presumption in this case was mandatory,18 the Court of Appeals analyzed it on its face as if it were. In fact, it was not, as the New York Court of Appeals had earlier pointed out. 40 N.Y.2d, at 510-511, 387 N.Y.S.2d, at 100, 354 N.E.2d, at 840.
22
The trial judge's instructions make it clear that the presumption was merely a part of the prosecution's case,19 that it gave rise to a permissive inference available only in certain circumstances, rather than a mandatory conclusion of possession, and that it could be ignored by the jury even if there was no affirmative proof offered by defendants in rebuttal.20 The judge explained that possession could be actual or constructive, but that constructive possession could not exist without the intent and ability to exercise control or dominion over the weapons.21 He also carefully instructed the jury that there is a mandatory presumption of innocence in favor of the defendants that controls unless it, as the exclusive trier of fact, is satisfied beyond a reasonable doubt that the defendants possessed the handguns in the manner described by the judge.22 In short, the instructions plainly directed the jury to consider all the circumstances tending to support or contradict the inference that all four occupants of the car had possession of the two loaded handguns and to decide the matter for itself without regard to how much evidence the defendants introduced.23
23
Our cases considering the validity of permissive statutory presumptions such as the one involved here have rested on an evaluation of the presumption as applied to the record before the Court. None suggests that a court should pass on the constitutionality of this kind of statute "on its face." It was error for the Court of Appeals to make such a determination in this case.
III
24
As applied to the facts of this case, the presumption of possession is entirely rational. Notwithstanding the Court of Appeals' analysis, respondents were not "hitchhikers or other casual passengers," and the guns were neither "a few inches in length" nor "out of [respondents'] sight." See n. 4, supra, and accompanying text. The argument against possession by any of the respondents was predicated solely on the fact that the guns were in Jane Doe's pocketbook. But several circumstances—which, not surprisingly, her counsel repeatedly emphasized in his questions and his argument, e. g., Tr. 282-283, 294-297, 306—made it highly improbable that she was the sole custodian of those weapons.
25
Even if it was reasonable to conclude that she had placed the guns in her purse before the car was stopped by police, the facts strongly suggest that Jane Doe was not the only person able to exercise dominion over them. The two guns were too large to be concealed in her handbag.24 The bag was consequently open, and part of one of the guns was in plain view, within easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat.25
26
Moreover, it is highly improbable that the loaded guns belonged to Jane Doe or that she was solely responsible for their being in her purse. As a 16-year-old girl in the company of three adult men she was the least likely of the four to be carrying one, let alone two, heavy handguns. It is far more probable that she relied on the pocketknife found in her brassiere for any necessary self-protection. Under these circumstances, it was not unreasonable for her counsel to argue and for the jury to infer that when the car was halted for speeding, the other passengers in the car anticipated the risk of a search and attempted to conceal their weapons in a pocketbook in the front seat. The inference is surely more likely than the notion that these weapons were the sole property of the 16-year-old girl.
27
Under these circumstances, the jury would have been entirely reasonable in rejecting the suggestion—which, incidentally, defense counsel did not even advance in their closing arguments to the jury26—that the handguns were in the sole possession of Jane Doe. Assuming that the jury did reject it, the case is tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile. In such a case, it is surely rational to infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons. The application of the statutory presumption in this case therefore comports with the standard laid down in Tot v. United States, 319 U.S., at 467, 63 S.Ct., at 1244, and restated in Leary v. United States, supra, 395 U.S., at 36, 89 S.Ct., at 1548. For there is a "rational connection" between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is "more likely than not to flow from" the former.27
28
Respondents argue, however, that the validity of the New York presumption must be judged by a "reasonable doubt" test rather than the "more likely than not" standard employed in Leary.28 Under the more stringent test, it is argued that a statutory presumption must be rejected unless the evidence necessary to invoke the inference is sufficient for a rational jury to find the inferred fact beyond a reasonable doubt. See Barnes v. United States, 412 U.S., at 842-843, 93 S.Ct., at 2361-2362. Respondents' argument again overlooks the distinction between a permissive presumption on which the prosecution is entitled to rely as one not necessarily sufficient part of its proof and a mandatory presumption which the jury must accept even if it is the sole evidence of an element of the offense.29 In the latter situation, since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt. But in the former situation, the prosecution may rely on all of the evidence in the record to meet the reasonable-doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.
29
The permissive presumption, as used in this case, satisfied the Leary test. And, as already noted, the New York Court of Appeals has concluded that the record as a whole was sufficient to establish guilt beyond a reasonable doubt.
30
The judgment is reversed.
31
So ordered.
32
Mr. CHIEF JUSTICE BURGER, concurring.
33
I join fully in the Court's opinion reversing the judgment under review. In the necessarily detailed step-by-step analysis of the legal issues, the central and controlling facts of a case often can become lost. The "underbrush" of finely tuned legal analysis of complex issues tends to bury the facts.
34
On this record, the jury could readily have reached the same result without benefit of the challenged statutory presumption; here it reached what was rather obviously a compromise verdict. Even without relying on evidence that two people had been seen placing something in the car trunk shortly before respondents occupied it, and that a machinegun and a package of heroin were soon after found in that trunk, the jury apparently decided that it was enough to hold the passengers to knowledge of the two handguns which were in such plain view that the officer could see them from outside the car. Reasonable jurors could reasonably find that what the officer could see from outside, the passengers within the car could hardly miss seeing. Courts have long held that in the practical business of deciding cases the factfinders, not unlike negotiators, are permitted the luxury of verdicts reached by compromise.
35
Mr. Justice POWELL, with whom Mr. Justice BRENNAN, Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
36
I agree with the Court that there is no procedural bar to our considering the underlying constitutional question presented by this case. I am not in agreement, however, with the Court's conclusion that the presumption as charged to the jury in this case meets the constitutional requirements of due process as set forth in our prior decisions. On the contrary, an individual's mere presence in an automobile where there is a handgun does not even make it "more likely than not" that the individual possesses the weapon.
37
* In the criminal law, presumptions are used to encourage the jury to find certain facts, with respect to which no direct evidence is presented, solely because other facts have been proved.1 See, e. g., Barnes v. United States, 412 U.S. 837, 840 n. 3, 93 S.Ct. 2357, 2360 n. 3, 37 L.Ed.2d 380 (1973); United States v. Romano, 382 U.S. 136, 138, 86 S.Ct. 279, 280, 15 L.Ed.2d 210 (1965). The purpose of such presumptions is plain: Like certain other jury instructions, they provide guidance for jurors' thinking in considering the evidence laid before them. Once in the juryroom, jurors necessarily draw inferences from the evidence—both direct and circumstantial. Through the use of presumptions, certain inferences are commended to the attention of jurors by legislatures or courts.
38
Legitimate guidance of a jury's deliberations is an indispensible part of our criminal justice system. Nonetheless, the use of presumptions in criminal cases poses at least two distinct perils for defendants' constitutional rights. The Court accurately identifies the first of these as being the danger of interference with "the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt." Ante, at 156. If the jury is instructed that it must infer some ultimate fact (that is, some element of the offense) from proof of other facts unless the defendant disproves the ultimate fact by a preponderance of the evidence, then the presumption shifts the burden of proof to the defendant concerning the element thus inferred.2
39
But I do not agree with the Court's conclusion that the only constitutional difficulty with presumptions lies in the danger of lessening the burden of proof the prosecution must bear. As the Court notes, the presumptions thus far reviewed by the Court have not shifted the burden of persuasion, see ante, at 157-159, n. 16; instead, they either have required only that the defendant produce some evidence to rebut the inference suggested by the prosecution's evidence, see Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed.2d 1519 (1943), or merely have been suggestions to the jury that it would be sensible to draw certain conclusions on the basis of the evidence presented.3 See Barnes v. United States, supra, 412 U.S., at 840 n. 3, 93 S.Ct., at 2360 n. 3. Evolving from our decisions, therefore, is a second standard for judging the constitutionality of criminal presumptions which is based—not on the constitutional requirement that the State be put to its proof—but rather on the due process rule that when the jury is encouraged to make factual inferences, those inferences must reflect some valid general observation about the natural connection between events as they occur in our society.
40
This due process rule was first articulated by the Court in Tot v. United States, supra, in which the Court reviewed the constitutionality of § 2(f) of the Federal Firearms Act. That statute provided in part that "possession of a firearm or ammunition by any . . . person [who has been convicted of a crime of violence] shall be presumptive evidence that such firearm or ammunition was shipped or transported [in interstate or foreign commerce]." As the Court interpreted the presumption, it placed upon a defendant only the obligation of presenting some exculpatory evidence concerning the origins of a firearm or ammunition, once the Government proved that the defendant had possessed the weapon and had been convicted of a crime of violence. Noting that juries must be permitted to infer from one fact the existence of another essential to guilt, "if reason and experience support the inference," 319 U.S., at 467, 63 S.Ct., at 1244, the Court concluded that under some circumstances juries may be guided in making these inferences by legislative or common-law presumptions, even though they may be based "upon a view of relation broader than that a jury might take in a specific case," id., at 468, 63 S.Ct., at 1245. To provide due process, however, there must be at least a "rational connection between the fact proved and the ultimate fact presumed"—a connection grounded in "common experience." Id., at 467-468, 63 S.Ct., at 1245. In Tot, the Court found that connection to be lacking.4
41
Subsequently, in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Court reaffirmed and refined the due process requirement of Tot that inferences specifically commended to the attention of jurors must reflect generally accepted connections between related events. At issue in Leary was the constitutionality of a federal statute making it a crime to receive, conceal, buy, or sell marihuana illegally brought into the United States, knowing it to have been illegally imported. The statute provided that mere possession of marihuana "shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury." After reviewing the Court's decisions in Tot v. United States, supra, and other criminal presumption cases, Mr. Justice Harlan, writing for the Court, concluded "that a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." 395 U.S., at 36, 89 S.Ct., at 1548 (footnote omitted). The Court invalidated the statute, finding there to be insufficient basis in fact for the conclusion that those who possess marihuana are more likely than not to know that it was imported illegally.5
42
Most recently, in Barnes v. United States, we considered the constitutionality of a quite different sort of presumption—one that suggested to the jury that " '[p]ossession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference . . . that the person in possession knew the property had been stolen.' " 412 U.S., at 840 n. 3, 93 S.Ct., at 2360 n. 3. After reviewing the various formulations used by the Court to articulate the constitutionally required basis for a criminal presumption, we once again found it unnecessary to choose among them. As for the presumption suggested to the jury in Barnes, we found that it was well founded in history, common sense, and experience, and therefore upheld it as being "clearly sufficient to enable the jury to find beyond a reasonable doubt" that those in the unexplained possession of recently stolen property know it to have been stolen. Id., at 845, 93 S.Ct., at 2363.
43
In sum, our decisions uniformly have recognized that due process requires more than merely that the prosecution be put to its proof.6 In addition, the Constitution restricts the court in its charge to the jury by requiring that, when particular factual inferences are recommended to the jury, those factual inferences be accurate reflections of what history, common sense, and experience tell us about the relations between events in our society. Generally, this due process rule has been articulated as requiring that the truth of the inferred fact be more likely than not whenever the premise for the inference is true. Thus, to be constitutional a presumption must be at least more likely than not true.
II
In the present case, the jury was told:
44
"Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession. In other words, [under] these presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced."
45
Undeniably, the presumption charged in this case encouraged the jury to draw a particular factual inference regardless of any other evidence presented: to infer that respondents possessed the weapons found in the automobile "upon proof of the presence of the machine gun and the hand weapon" and proof that respondents "occupied the automobile at the time such instruments were found." I believe that the presumption thus charged was unconstitutional because it did not fairly reflect what common sense and experience tell us about passengers in automobiles and the possession of handguns. People present in automobiles where there are weapons simply are not "more likely than not" the possessors of those weapons.
46
Under New York law, "to possess" is "to have physical possession or otherwise to exercise dominion or control over tangible property." N.Y.Penal Law § 10.00(8) (McKinney 1975). Plainly, the mere presence of an individual in an automobile without more—does not indicate that he exercises "dominion or control over" everything within it. As the Court of Appeals noted, there are countless situations in which individuals are invited as guests into vehicles the contents of which they know nothing about, much less have control over. Similarly, those who invite others into their automobile do not generally search them to determine what they may have on their person; nor do they insist that any handguns be identified and placed within reach of the occupants of the automobile. Indeed, handguns are particularly susceptible to concealment and therefore are less likely than are other objects to be observed by those in an automobile.
47
In another context, this Court has been particularly hesitant to infer possession from mere presence in a location, noting that "[p]resence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant's function at the [illegal] still, its connection with possession is too tenuous to permit a reasonable inference of guilt—'the inference of the one from proof of the other is arbitrary . . ..' Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed.2d 1519." United States v. Romano, 382 U.S., at 141, 86 S.Ct., at 282. We should be even more hesitant to uphold the inference of possession of a handgun from mere presence in an automobile, in light of common experience concerning automobiles and handguns. Because the specific factual inference recommended to the jury in this case is not one that is supported by the general experience of our society, I cannot say that the presumption charged is "more likely than not" to be true. Accordingly, respondents' due process rights were violated by the presumption's use.
48
As I understand it, the Court today does not contend that in general those who are present in automobiles are more likely than not to possess any gun contained within their vehicles. It argues, however, that the nature of the presumption here involved requires that we look, not only to the immediate facts upon which the jury was encouraged to base its inference, but to the other facts "proved" by the prosecution as well. The Court suggests that this is the proper approach when reviewing what it calls "permissive" presumptions because the jury was urged "to consider all the circumstances tending to support or contradict the inference." Ante, at 162.
49
It seems to me that the Court mischaracterizes the function of the presumption charged in this case. As it acknowledges was the case in Romano, supra, the "instruction authorized conviction even if the jury disbelieved all of the testimony except the proof of presence" in the automobile.7 Ante, at 159 n. 16. The Court nevertheless relies on all of the evidence introduced by the prosecution and argues that the "permissive" presumption could not have prejudiced defendants. The possibility that the jury disbelieved all of this evidence, and relied on the presumption, is simply ignored.
50
I agree that the circumstances relied upon by the Court in determining the plausibility of the presumption charged in this case would have made it reasonable for the jury to "infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons." But the jury was told that it could conclude that respondents possessed the weapons found therein from proof of the mere fact of respondents' presence in the automobile. For all we know, the jury rejected all of the prosecution's evidence concerning the location and origin of the guns, and based its conclusion that respondents possessed the weapons solely upon its belief that respondents had been present in the automobile.8 For purposes of reviewing the constitutionality of the presumption at issue here, we must assume that this was the case. See Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946); cf. Leary v. United States, 395 U.S., at 31, 89 S.Ct., at 1545.
51
The Court's novel approach in this case appears to contradict prior decisions of this Court reviewing such presumptions. Under the Court's analysis, whenever it is determined that an inference is "permissive," the only question is whether, in light of all of the evidence adduced at trial, the inference recommended to the jury is a reasonable one. The Court has never suggested that the inquiry into the rational basis of a permissible inference may be circumvented in this manner. Quite the contrary, the Court has required that the "evidence necessary to invoke the inference [be] sufficient for a rational juror to find the inferred fact . . .." Barnes v. United States, 412 U.S., at 843, 93 S.Ct., at 2362 (emphasis supplied). See Turner v. United States, 396 U.S. 398, 407, 90 S.Ct. 642, 647, 24 L.Ed.2d 610 (1970). Under the presumption charged in this case, the only evidence necessary to invoke the inference was the presence of the weapons in the automobile with respondents—an inference that is plainly irrational.
52
In sum, it seems to me that the Court today ignores the teaching of our prior decisions. By speculating about what the jury may have done with the factual inference thrust upon it, the Court in effect assumes away the inference altogether, constructing a rule that permits the use of any inference—no matter how irrational in itself—provided that otherwise there is sufficient evidence in the record to support a finding of guilt. Applying this novel analysis to the present case, the Court upholds the use of a presumption that it makes no effort to defend in isolation. In substance, the Court—applying an unarticulated harmless-error standard—simply finds that the respondents were guilty as charged. They may well have been but rather than acknowledging this rationale, the Court seems to have made new law with respect to presumptions that could seriously jeopardize a defendant's right to a fair trial. Accordingly, I dissent.
1
New York Penal Law § 265.15(3) (McKinney 1967):
"The presence in an automobile, other than a stolen one or a public omnibus, of any firearm, defaced firearm, firearm silencer, bomb, bombshell, gravity knife, switchblade knife, dagger, dirk, stiletto, billy, blackjack, metal knuckles, sandbag, sandclub or slungshot is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found, except under the following circumstances:
"(a) if such weapon, instrument or appliance is found upon the person of one of the occupants therein; "(b) if such weapon, instrument or appliance is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his trade, then such presumption shall not apply to the driver; or (c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his possession a valid license to have and carry concealed the same."
In addition to the three exceptions delineated in §§ 265.15(3)(a)-(c) above as well as the stolen-vehicle and public-omnibus exception in § 265.15(3) itself, § 265.20 contains various exceptions that apply when weapons are present in an automobile pursuant to certain military, law enforcement, recreational, and commercial endeavors.
2
The arrest was made by two state troopers. One officer approached the driver, advised him that he was going to issue a ticket for speeding, requested identification, and returned to the patrol car. After a radio check indicated that the driver was wanted in Michigan on a weapons charge, the second officer returned to the vehicle and placed the driver under arrest. Thereafter, he went around to the right side of the car and, in "open view," saw a portion of a .45-caliber automatic pistol protruding from the open purse on the floor or the seat. People v. Lemmons, 40 N.Y.2d 505, 508-509, 387 N.Y.S.2d 97, 99-100, 354 N.E.2d 836, 838-839 (1976). He opened the car door, removed that gun, and saw a .38-caliber revolver in the same handbag. He testified that the crosswise position of one or both of the guns kept the handbag from closing. After the weapons were secured, the two remaining male passengers, who had been sitting in the rear seat, and Jane Doe were arrested and frisked. A subsequent search at the police station disclosed a pocket-knife and marihuana concealed on Jane Doe's person. Tr. 187-192, 208-214, 277-278, 291-297, 408.
3
Early that morning, the four defendants had arrived at the Rochester, N. Y., home of the driver's sister in a Cadillac. Using her telephone, the driver called their brother, advised him that "his car ran hot" on the way there from Detroit and asked to borrow the Chevrolet so that the four could continue on to New York City. The brother brought the Chevrolet to the sister's home. He testified that he had recently cleaned out the trunk and had seen no weapons or drugs. The sister also testified, stating that she saw two of the defendants transfer some unidentified item or items from the trunk of one vehicle to the trunk of the other while both cars were parked in her driveway. Id., at 17-19, 69-73, 115-116, 130-131, 193-194.
4
The majority continued:
"Nothing about a gun, which may be only a few inches in length (e. g., a Baretta or Derringer) and concealed under a seat, in a glove compartment or beyond the reach of all but one of the car's occupants, assures that its presence is known to occupants who may be hitchhikers or other casual passengers, much less that they have any dominion or control over it." 568 F.2d, at 1007.
5
Respondents first made the argument in a memorandum of law in support of their unsuccessful post-trial motion to set aside the verdict. App. 36a-38a. That memorandum framed the argument in three parts precisely as respondents would later frame it in their briefs in the Appellate Division and Court of Appeals, see id., at 41a-44a, 50a-52a, and in their petition for a writ of habeas corpus. See id., at 6a-10a: First, "[t]he only evidence" relied upon to convict them was their presence in an automobile in which the two handguns were found. Id., at 35a. Second, but for the presumption of possession, this evidence was "totally insufficient to sustain the conviction." Id., at 38a. And third, that presumption is "unconstitutional as applied" (or, " 'arbitrary,' and hence unconstitutional") under Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57, a case in which this Court established standards for determining the validity under the Due Process Clauses of statutory presumptions in criminal cases. App. 36a. This sufficiency-focused argument on the presumption is amply supported in our case law. E. g., Turner v. United States, 396 U.S. 398, 424, 90 S.Ct. 642, 656, 24 L.Ed.2d 610 ("[A] conviction resting on [an unconstitutional] presumption cannot be deemed a conviction based on sufficient evidence"). See also Rossi v. United States, 289 U.S. 89, 90, 53 S.Ct. 532, 533, 77 L.Ed. 1051.
Although respondents' memorandum did not cite the provision of the Constitution on which they relied, their citation of our leading case applying that provision, in conjunction with their use of the word "unconstitutional," left no doubt that they were making a federal constitutional argument. Indeed, by its responses to that argument at every step of the way, the State made clear that it, at least, understood the federal basis for the claim. E. g., Respondent's Brief and Appendix in the Court of Appeals of the State of New York, p. 9.
6
Petitioners contend that, in addition to the timing of respondents' claim and the alleged silence of the New York courts, there is another basis for concluding that those courts rejected respondents' claim on procedural grounds. Petitioners point out that respondents—having unsuccessfully argued to the trial court (as they would unsuccessfully argue on appeal) that the "upon the person" exception applied as a matter of law in their case—failed either to ask the trial court to instruct the jury to consider the exceptions or to object when the court omitted the instruction. They further point out that the majority of the New York Court of Appeals, after concluding that the exception's application was a jury question in this case, refused to review the trial court's omission of an instruction on the issue because of respondents' failure to protest that omission. 40 N.Y.2d, at 512, 387 N.Y.S.2d, at 101, 354 N.E.2d, at 841.
Petitioners argue that we should infer from the Court of Appeals' explicit treatment of this state-law claim—a claim never even pressed on appeal—how that court implicitly treated the federal claim that has been the crux of respondents' litigation strategy from its post-trial motion to the present. There is no basis for the inference. Arguing on appeal that an instruction that was never requested should have been given is far more disruptive to orderly judicial proceedings than arguing in a post-trial motion that the evidence was insufficient to support the verdict. Moreover, that the Court of Appeals felt compelled expressly to reject, on procedural grounds, an argument never made is hardly proof that they would silently reject on similar grounds an argument that was forcefully made. As we discuss, infra, at 153-154, it is clear that the court did address the constitutional question and did so on the merits, albeit summarily.
Petitioners also contend that respondents, having failed to seek a jury determination based on state law that the presumption does not apply, may not now argue that the presumption is void as a matter of federal constitutional law. The argument is unpersuasive. Respondents' failure to demand an instruction on the state-law exception is no more and no less than a concession on their part that as a matter of state law the guns were not found "upon the person" of any occupant of the car is that phrase is interpreted by the New York courts, and therefore, again as a matter of state law, that the presumption of possession is applicable. The New York Court of Appeals reviewed the case in that posture, and we do the same.
7
Petitioners advance a second reason why there is no federal jurisdiction in this case. Respondents were convicted on the basis of a statutory presumption they argue is unconstitutional. Following the Court of Appeals' affirmance of their conviction, they could have appealed that decision to this Court under 28 U.S.C. § 1257(2) and thereby forced a binding federal disposition of the matter. Because respondents failed to do so, petitioners argue that respondents waived any right to federal review of the decision on habeas corpus.
In Fay v. Noia, 372 U.S. 391, 435-438, 83 S.Ct. 822, 847-848, 9 L.Ed.2d 837, we rejected a similar argument that habeas corpus review was unavailable in advance of a petition for certiorari. See also Stevens v. Marks, 383 U.S. 234, 86 S.Ct. 788, 15 L.Ed.2d 724, in which the Court entertained a challenge to a state statute in a federal habeas corpus proceeding even though the defendant had not pursued that challenge on appeal to this Court prior to filing his petition for habeas corpus. The analysis of the federal habeas statute that led us to our conclusion in Fay is equally applicable in the present situation. That statute gives federal courts jurisdiction to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" if that custody allegedly violates "the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The only statutory exception to this jurisdiction arises when the petitioner has failed to exhaust "the remedies available in the courts of the State." § 2254(b). As was said in Fay with regard to petitions for certiorari under 28 U.S.C. § 1257(3), direct appeals to this Court under § 1257(2) are not " 'remedies available in the courts of the State.' " 372 U.S., at 436, 83 S.Ct., at 847. Accordingly, there is no statutory requirement of an appeal to this Court as a predicate to habeas jurisdiction.
8
New York's cautious contemporaneous-objection policy is embodied in N.Y.Crim.Proc.Law § 470.05(2) (McKinney 1971):
"For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same " (emphasis added).
That policy is carefully limited by several statutory qualifications in addition to the one italicized above. First, the form of the "protest" is not controlling so long as its substance is clear. Ibid. Second, such protests may be made "expressly or impliedly." Ibid. Third, once a protest is made, it need not be repeated at each subsequent disposition of the matter. Ibid. And finally, the Appellate Division of the New York Supreme Court is authorized in its discretion to "consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant," even if not previously objected to. § 470.15(1). See, e. g., People v. Fragale, 60 A.D.2d 972, 401 N.Y.S.2d 629 (1978); People v. Travison, 59 A.D.2d 404, 408, 400 N.Y.S.2d 188, 191 (1977).
9
E. g., People v. Ramos, 33 A.D.2d 344, 308 N.Y.S.2d 195 (1970); People v. Walker, 26 Misc.2d 940, 206 N.Y.S.2d 377 (1960). Cf. Fed.Rule Crim.Proc. 29(c) ("It shall not be necessary to the making of [a motion for judgment of acquittal] that a similar motion has been made prior to the submission of the case to the jury"); Burks v. United States, 437 U.S. 1, 17-18, 98 S.Ct. 2141, 2150-2151, 57 L.Ed.2d 1 (under federal law a post-trial motion for a new trial based on insufficiency of the evidence is not a waiver of the right to acquittal at that point if the evidence is found to be insufficient).
10
First, the New York Court of Appeals has developed an exception to the State's contemporaneous-objection policy that allows review of unobjected-to errors that affect "a fundamental constitutional right." People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 204 N.E.2d 846, 848 (1965). Accord, People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968); People v. DeRenzzio, 19 N.Y.2d 45, 277 N.Y.S.2d 668, 224 N.E.2d 97 (1966). Indeed, this Court recognized that exception in concluding that an ambiguously presented federal claim had been properly raised in New York trial and appellate courts and was therefore cognizable by this Court on appeal. Street v. New York, 394 U.S. 576, 583-584, 89 S.Ct. 1354, 1361-1362, 22 L.Ed.2d 572. Although this exception has been narrowed more recently, e. g., People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784 (1975), it continues to have currency within the State where there has been a denial of a "fair trial." E. g., La Rocca v. Lane, 37 N.Y.2d 575, 584, 376 N.Y.S.2d 93, 338 N.E.2d 606, 613 (1975); People v. Bennett, 29 N.Y.2d 462, 467, 329 N.Y.S.2d 801, 280 N.E.2d 637, 639 (1972); People v. White, 86 Misc.2d 803, 809, 383 N.Y.S.2d 800, 804 (1976). The relevance of this exception is apparent from the Second Circuit opinion in this case which held that respondents "were denied a fair trial when the jury was charged that they could rely on the presumption . . . ." 568 F.2d, at 1011.
Second, the New York courts will also entertain a federal constitutional claim on appeal even though it was not expressly raised at trial if a similar claim seeking similar relief was clearly raised. E. g., People v. De Bour, 40 N.Y.2d 210, 214-215, 386 N.Y.S.2d 375, 378-379, 352 N.E.2d 562, 565-566 (1976); People v. Robbins, 38 N.Y.2d 913, 382 N.Y.S.2d 977, 346 N.E.2d 815 (1976); People v. Arthur, supra. Cf. United States v. Mauro, 436 U.S. 340, 364-365, 98 S.Ct. 1834, 1849-1850, 56 L.Ed.2d 329 (failure to invoke Interstate Agreement on Detainers time limit in a speedy trial motion is not a waiver of the former argument). In this case, respondents made two arguments based on the unavailability of the presumption and the consequent total absence, in their view, of proof of the crime. The first, that the statutory "upon the person" exception to the presumption should apply in this case, was made in the middle of trial at the close of the prosecutor's case and then repeated at the close of the defendants' case. Tr. 554-590; App., 12a-17a. Indeed, respondents arguably made this claim even earlier, during the middle of the government's case, when they unsuccessfully objected to the introduction of the handguns in evidence on the ground that there was "nothing [in the record up to that point] to connect this weapon with the . . . defendants." Tr. 474-502.
Although the constitutional counterpart to this argument was not made until just after the verdict was announced, the earlier objection to the State's reliance on the presumption might suffice under these cases as an adequate contemporaneous objection. See N.Y.Crim.Proc.Law § 470.05(2) (McKinney 1971); n. 8, supra. The logical linkage between the two objections is suggested by legislative history and case law in New York indicating that the "upon the person" exception was included in the presumption statute to avoid constitutional problems. See People v. Logan, 94 N.Y.S.2d 681, 684 (Sup.Ct., 1949); Report of the New York State Joint Legislative Committee on Firearms and Ammunition, N.Y.Leg.Doc. No. 29, p. 21 (1962).
11
Section 330.30(1) of the N.Y.Crim.Proc.Law (McKinney 1971) authorizes a trial court to grant a motion to set aside the verdict "[a]t any time after rendition of a verdict of guilty and before sentence" on "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court."
12
40 N.Y.2d, at 514-515, 387 N.Y.S.2d, at 99-100, 354 N.E.2d, at 842-843 (Wachtler, J., concurring and dissenting); id., at 516, 387 N.Y.S.2d, at 103-104, 354 N.E.2d, at 843-844 (Fuchsberg, J., concurring and dissenting).
13
Moreover, looking beyond its position as an adversary in this litigation, it is arguable that the State of New York will benefit from an authoritative resolution of the conflict between its own courts and the federal courts sitting in New York concerning the constitutionality of one of its statutes.
14
Indeed, in this very case the permissive presumptions in § 265.15(3) and its companion drug statute, N.Y.Penal Law § 220.25(1) (McKinney Supp. 1978), were insufficient to persuade the jury to convict the defendants of possession of the loaded machinegun and heroin in the trunk of the car notwithstanding the supporting testimony that at least two of them had been seen transferring something into the trunk that morning. See n. 3, supra.
The hypothetical, even implausible, nature of the situations relied upon by the Court of Appeals is illustrated by the fact that there are no reported cases in which the presumption led to convictions in circumstances even remotely similar to the posited situations. In those occasional cases in which a jury has reached a guilty verdict on the basis of evidence insufficient to justify an inference of possession from presence, the New York appellate courts have not hesitated to reverse. E. g., People v. Scott, 53 App.Div.2d 703, 384 N.Y.S.2d 878 (1976); People v. Garcia, 41 App.Div.2d 560, 340 N.Y.S.2d 35 (1973).
In light of the improbable character of the situations hypothesized by the Court of Appeals, its facial analysis would still be unconvincing even were that type of analysis appropriate. This Court has never required that a presumption be accurate in every imaginable case. See Leary v. United States, 395 U.S., at 53, 89 S.Ct., at 1557.
15
See n. 4, supra, and accompanying text. Thus, the assumption that it would be unconstitutional to apply the statutory presumption to a hitchhiker in a car containing a concealed weapon does not necessarily advance the constitutional claim of the driver of a car in which a gun was found on the front seat, or of other defendants in entirely different situations.
16
This class of more or less mandatory presumptions can be subdivided into two parts: presumptions that merely shift the burden of production to
the defendant, following the satisfaction of which the ultimate burden of persuasion returns to the prosecution; and presumptions that entirely shift the burden of proof to the defendant. The mandatory presumptions examined by our cases have almost uniformly fit into the former subclass, in that they never totally removed the ultimate burden of proof beyond a reasonable doubt from the prosecution. E. g., Tot v. United States, 319 U.S., at 469, 63 S.Ct., at 1245. See Roviaro v. United States, 353 U.S. 53, 63, 77 S.Ct. 623, 629, 1 L.Ed.2d 639, describing the operation of the presumption involved in Turner, Leary, and Romano.
To the extent that a presumption imposes an extremely low burden of production—e. g., being satisfied by "any" evidence—it may well be that its impact is no greater than that of a permissive inference, and it may be proper to analyze it as such. See generally Mullaney v. Wilbur, 421 U.S. 684, 703 n. 31, 95 S.Ct. 1881, 1892 n. 31, 44 L.Ed.2d 508.
In deciding what type of inference or presumption is involved in a case, the jury instructions will generally be controlling, although their interpretation may require recourse to the statute involved and the cases decided under it. Turner v. United States, provides a useful illustration of the different types of presumptions. It analyzes the constitutionality of two different presumption statutes (one mandatory and one permissive) as they apply to the basic fact of possession of both heroin and cocaine, and the presumed facts of importation and distribution of narcotic drugs. The jury was charged essentially in the terms of the two statutes.
The importance of focusing attention on the precise presentation of the presumption to the jury and the scope of that presumption is illustrated by a comparison of United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658, with United States v. Romano. Both cases involved statutory presumptions based on proof that the defendant was present at the site of an illegal still. In Gainey the Court sustained a conviction "for carrying on" the business of the distillery in violation of 26 U.S.C. § 5601(a)(4), whereas in Romano, the Court set aside a conviction for being in "possession, or custody, or . . . control" of such a distillery in violation of § 5601(a)(1). The difference in outcome was attributable to two important differences between the cases. Because the statute involved in Gainey was a sweeping prohibition of almost any activity associated with the still, whereas the Romano statute involved only one narrow aspect of the total
undertaking, there was a much higher probability that mere presence could support an inference of guilt in the former case than in the latter.
Of perhaps greater importance, however, was the difference between the trial judge's instructions to the jury in the two cases. In Gainey, the judge had explained that the presumption was permissive; it did not require the jury to convict the defendant even if it was convinced that he was present at the site. On the contrary, the instructions made it clear that presence was only " 'a circumstance to be considered along with all the other circumstances in the case.' " As we emphasized, the "jury was thus specifically told that the statutory inference was not conclusive." 380 U.S., at 69-70, 85 S.Ct., at 758-759. In Romano, the trial judge told the jury that the defendant's presence at the still " 'shall be deemed sufficient evidence to authorize conviction.' " 382 U.S., at 138, 86 S.Ct., at 281. Although there was other evidence of guilt, that instruction authorized conviction even if the jury disbelieved all of the testimony except the proof of presence at the site. This Court's holding that the statutory presumption could not support the Romano conviction was thus dependent, in part, on the specific instructions given by the trial judge. Under those instructions it was necessary to decide whether, regardless of the specific circumstances of the particular case, the statutory presumption adequately supported the guilty verdict.
17
In addition to the discussion of Romano in n. 16, supra, this point is illustrated by Leary v. United States. In that case, Dr. Timothy Leary, a professor at Harvard University, was stopped by customs inspectors in Laredo, Tex., as he was returning from the Mexican side of the international border. Marihuana seeds and a silver snuffbox filled with semirefined marihuana and three partially smoked marihuana cigarettes were discovered in his car. He was convicted of having knowingly transported marihuana which he knew had been illegally imported into this country in violation of 21 U.S.C. § 176a (1964 ed.). That statute included a mandatory presumption: "possession shall be deemed sufficient evidence to authorize conviction [for importation] unless the defendant explains his possession to the satisfaction of the jury." Leary admitted possession of the marihuana and claimed that he had carried it from New York to Mexico and then back.
Mr. Justice Harlan for the Court noted that under one theory of the case, the jury could have found direct proof of all of the necessary elements of the offense without recourse to the presumption. But he deemed that insufficient reason to affirm the conviction because under another theory the jury might have found knowledge of importation on the basis of either direct evidence or the presumption, and there was accordingly no certainty that the jury had not relied on the presumption. 395 U.S., at 31-32, 89 S.Ct., at 1545-1546. The Court therefore found it necessary to test the presumption against the Due Process Clause. Its analysis was facial. Despite the fact that the defendant was well educated and had recently traveled to a country that is a major exporter of marihuana to this country, the Court found the presumption of knowledge of importation from possession irrational. It did so, not because Dr. Leary was unlikely to know the source of the marihuana, but instead because "a majority of possessors" were unlikely to have such knowledge. Id., at 53, 89 S.Ct., at 1557.
Because the jury had been instructed to rely on the presumption even if it did not believe the Government's direct evidence of knowledge of importation (unless, of course, the defendant met his burden of "satisfying" the jury to the contrary), the Court reversed the conviction.
18
Indeed, the court never even discussed the jury instructions.
19
"It is your duty to consider all the testimony in this case, to weigh it carefully and to test the credit to be given to a witness by his apparent intention to speak the truth and by the accuracy of his memory to reconcile, if possible, conflicting statements as to material facts and in such ways to try and get at the truth and to reach a verdict upon the evidence." Tr. 739-740.
"To establish the unlawful possession of the weapons, again the People relied upon the presumption and, in addition thereto, the testimony of Anderson and Lemmons who testified in their case in chief." Id., at 744.
"Accordingly, you would be warranted in returning a verdict of guilt against the defendants or defendant if you find the defendants or defendant was in possession of a machine gun and the other weapons and that the fact of possession was proven to you by the People beyond a reasonable doubt, and an element of such proof is the reasonable presumption of illegal possession of a machine gun or the presumption of illegal possession of firearms, as I have just before explained to you." Id., at 746.
20
"Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession.
"In other words, these presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced." Id., at 743.
"The presumption or presumptions which I discussed with the jury relative to the drugs or weapons in this case need not be rebutted by affirmative proof or affirmative evidence but may be rebutted by any evidence or lack of evidence in the case." Id., at 760.
21
"As so defined, possession means actual physical possession, just as having the drugs or weapons in one's hand, in one's home or other place under one's exclusive control, or constructive possession which may exist without personal dominion over the drugs or weapons but with the intent and ability to retain such control or dominion." Id., at 742.
22
"[Y]ou are the exclusive judges of all the questions of fact in this case. That means that you are the sole judges as to the weight to be given to the evidence and to the weight and probative value to be given to the testimony of each particular witness and to the credibility of any witness." Id., at 730.
"Under our law, every defendant in a criminal trial starts the trial with the presumption in his favor that he is innocent, and this presumption follows him throughout the entire trial and remains with him until such time as you, by your verdict, find him or her guilty beyond a reasonable doubt or innocent of the charge. If you find him or her not guilty, then, of course, this presumption ripens into an established fact. On the other hand, if you find him or her guilty, then this presumption has been overcome and is destroyed." Id., at 734.
"Now, in order to find any of the defendants guilty of the unlawful possession of the weapons, the machine gun, the .45 and the .38, you must be satisfied beyond a reasonable doubt that the defendants possessed the machine gun and the .45 and the .38, possessed it as I defined it to you before." Id., at 745.
23
The verdict announced by the jury clearly indicates that it understood its duty to evaluate the presumption independently and to reject it if it was not supported in the record. Despite receiving almost identical instructions on the applicability of the presumption of possession to the contraband found in the front seat and in the trunk, the jury convicted all four defendants of possession of the former but acquitted all of them of possession of the latter. See n. 14, supra.
24
Jane Doe's counsel referred to the .45-caliber automatic pistol as a "cannon." Tr. 306.
25
The evidence would have allowed the jury to conclude either that the handbag was on the front floor or front seat.
26
Indeed, counsel for two of the respondents virtually invited the jury to find to the contrary:
"One more thing. You know, different people live in different cultures and different societies. You may think that the way [respondent] Hardrick has his hair done up is unusual; it may seem strange to you. People live differently. . . . For example, if you were living under their times and conditions and you traveled from a big city, Detroit, to a bigger city, New York City, it is not unusual for people to carry guns, small arms to protect themselves, is it? There are places in New York City policemen fear to go. But you have got to understand; you are sitting here as jurors. These are people, live flesh and blood, the same as you, different motives, different objectives." Id., at 653-654 (emphasis added). See also id., at 634.
It is also important in this regard that respondents passed up the opportunity to have the jury instructed not to apply the presumption if it determined that the handguns were "upon the person" of Jane Doe.
27
The New York Court of Appeals first upheld the constitutionality of the presumption involved in this case in People v. Russo, 303 N.Y. 673, 102 N.E.2d 834 (1951). That decision relied upon the earlier case of People v. Terra, 303 N.Y. 332, 102 N.E.2d 576 (1951), which upheld the constitutionality of another New York statute that allowed a jury to presume that the occupants of a room in which a firearm was located possessed the weapon. The analysis in Terra, which this Court dismissed for want of a substantial federal question, 342 U.S. 938, 72 S.Ct. 561, 96 L.Ed. 698, is persuasive:
"[T]here can be no doubt about the 'sinister significance' of proof of a machine gun in a room occupied by an accused or about the reasonableness of the connection between its illegal possession and occupancy of the room where it is kept. Persons who occupy a room, who either reside in it or use it in the conduct and operation of a business or other venture—and that is what in its present context the statutory term 'occupying' signifies . . .—normally know what is in it; and, certainly, when the object is as large and uncommon as a machine gun, it is neither unreasonable nor unfair to presume that the room's occupants are aware of its presence. That being so, the legislature may not be considered arbitrary if it acts upon the presumption and erects it into evidence of a possession that is 'conscious' and 'knowing.' " 303 N.Y., at 335-336, 102 N.E.2d, at 578-579.
See also Interim Report of Temporary State Commission to Evaluate the Drug Laws, N.Y.Leg.Doc.No. 10, p. 69 (1972), in which the drafters of the analogous automobile/narcotics presumption in N.Y. Penal Law § 220.25 (McKinney Supp. 1978), explained the basis for that presumption:
"We believe, and find, that it is rational and logical to presume that all occupants of a vehicle are aware of, and culpably involved in, possession of dangerous drugs found abandoned or secreted in a vehicle when the quantity of the drug is such that it would be extremely unlikely for an occupant to be unaware of its presence. . . .
"We do not believe that persons transporting dealership quantities of contraband are likely to go driving about with innocent friends or that they are likely to pick up strangers. We do not doubt that this can and does in fact occasionally happen, but because we find it more reasonable to believe that the bare presence in the vehicle is culpable, we think it reasonable to presume culpability in the direction which the proven facts already point. Since the presumption is an evidentiary one, it may be offset by any evidence, including the testimony of the defendant, which would negate the defendant's culpable involvement."
Legislative judgments such as this one deserve respect in assessing the constitutionality of evidentiary presumptions. E. g., Leary v. United States, 395 U.S., at 39, 89 S.Ct., at 1549; United States v. Gainey, 380 U.S., at 67, 85 S.Ct., at 757.
28
"The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." 395 U.S., at 36, 89 S.Ct., at 1548.
29
The dissenting argument rests on the assumption that "the jury [may have] rejected all of the prosecution's evidence concerning the location and origin of the guns." Post, at 175-176. Even if that assumption were plausible, the jury was plainly told that it was free to disregard the presumption. But the dissent's assumption is not plausible; for if the jury rejected the testimony describing where the guns were found, it would necessarily also have rejected the only evidence in the record proving that the guns were found in the car. The conclusion that the jury attached significance to the particular location of the handguns follows inexorably from the acquittal on the charge of possession of the machinegun and heroin in the trunk.
1
Such encouragement can be provided either by statutory presumptions, see, e. g., 18 U.S.C. § 1201(b), or by presumptions created in the common law. See, e. g., Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). Unless otherwise specified, "presumption" will be used herein to "permissible inferences," as well as to "true" presumptions. See F. James, Civil Procedure § 7.9 (1965).
2
The Court suggests that presumptions that shift the burden of persuasion to the defendant in this way can be upheld provided that "the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt." Ante, at 167. As the present case involves no shifting of the burden of persuasion, the constitutional restrictions on such presumptions are not before us, and I express no views on them.
It may well be that even those presumptions that do not shift the burden of persuasion cannot be used to prove an element of the offense, if the facts proved would not permit a reasonable mind to find the presumed fact beyond a reasonable doubt. My conclusion in Part II, infra, makes it unnecessary for me to address this concern here.
3
The Court suggests as the touchstone for its analysis a distinction between "mandatory" and "permissive" presumptions. See ante, at 157. For general discussions of the various forms of presumptions, see Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325 (1979); F. James, Civil Procedure § 7.9 (1965). I have found no recognition in the Court's prior decisions that this distinction is important in analyzing presumptions used in criminal cases. Cf. ibid. (distinguishing true "presumptions" from "permissible inferences").
4
The analysis of Tot v. United States, was used by the Court in United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), and United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).
5
Because the statute in Leary v. United States was found to be unconstitutional under the "more likely than not" standard, the Court explicitly declined to consider whether criminal presumptions also must follow "beyond a reasonable doubt" from their premises, if an essential element of the crime depends upon the presumption's use. 395 U.S., at 36 n. 64, 89 S.Ct., at 1548 n. 64. See n. 2, supra. The Court similarly avoided this question in Turner v. United States, 396 U.S. 398, 416, 90 S.Ct. 642, 652, 24 L.Ed.2d 610 (1970).
6
The Court apparently disagrees, contending that "the factfinder's responsibility . . . to find the ultimate facts beyond a reasonable doubt" is the only constitutional restraint upon the use of criminal presumptions at trial. See ante, at 156.
7
In commending the presumption to the jury, the court gave no instruction that would have required a finding of possession to be based on anything more than mere presence in the automobile. Thus, the jury was not instructed that it should infer that respondents possessed the handguns only if it found that the guns were too large to be concealed in Jane Doe's handbag, ante, at 163; that the guns accordingly were in the plain view of respondents, ibid.; that the weapons were within "easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat," ibid.; that it was unlikely that Jane Doe was solely responsible for the placement of the weapons in her purse, ibid.; or that the case was "tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile." Ante, at 164.
8
The Court is therefore mistaken in its conclusion that, because "respondents were not 'hitchhikers or other casual passengers,' and the guns were neither 'a few inches in length' nor 'out of [respondents'] sight,' " reference to these possibilities is inappropriate in considering the constitutionality of the presumption as charged in this case. Ante, at 163. To be sure, respondents' challenge is to the presumption as charged to the jury in this case. But in assessing its application here, we are not free, as the Court apparently believes, to disregard the possibility that the jury may have disbelieved all other evidence supporting an inference of possession. The jury may have concluded that respondents—like hitchhikers—had only an incidental relationship to the auto in which they were traveling, or that, contrary to some of the testimony at trial, the weapons were indeed out of respondents' sight.
| 34
|
442 U.S. 100
99 S.Ct. 2190
60 L.Ed.2d 743
Robert DUNN, Petitioner,v.UNITED STATES.
No. 77-6949.
Argued March 29, 1978.
Decided June 4, 1979.
Syllabus
Petitioner's testimony before a grand jury in June 1976 implicated one Musgrave in various drug-related offenses, and an indictment of Musgrave followed. On September 30, 1976, petitioner recanted his testimony in an oral statement made under oath in the office of Musgrave's attorney. Musgrave then moved to dismiss his indictment, alleging that it was based on perjured testimony. At an evidentiary hearing on this motion on October 21, 1976, petitioner adopted his September 30 statement and testified that only a small part of his grand jury testimony was true. As a result, the charges against Musgrave were reduced. Petitioner was subsequently indicted for violations of 18 U.S.C. § 1623 (1976 ed., Supp. I), which prohibits false declarations made under oath "in any proceeding before or ancillary to any court or grand jury." The indictment charged that petitioner's grand jury testimony was inconsistent with statements made "on September 30, 1976, while under oath as a witness in a proceeding ancillary to" the Musgrave prosecution. At trial, the Government introduced, over petitioner's objection, pertinent parts of his grand jury testimony, his testimony at the evidentiary hearing, and his sworn statement to Musgrave's attorney. Petitioner was convicted, and the Court of Appeals affirmed. Although it agreed with petitioner that the September interview in the attorney's office was not an ancillary proceeding under § 1623, the court concluded that the October 21 hearing was such a proceeding. While acknowledging that the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the court construed this discrepancy as a nonprejudicial variance between the indictment and the proof at trial.
Held:
1. Since the indictment and jury instructions specified the September 30 interview as the ancillary proceeding, the Court of Appeals erred in predicating its affirmance on petitioner's October 21 testimony. To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury offends the most basic notions of due process. Although the jury might well have reached the same verdict had the prosecution built its case on petitioner's October 21 testimony adopting his September 30 statement rather than on the latter statement itself, the offense was not so defined, and appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial. Pp. 105-107.
2. As both the language and legislative history of Title IV of the 1970 Organized Crime Control Act make clear, an interview in a private attorney's office at which a sworn statement is given does not constitute a "proceeding ancillary to a court or grand jury" within the meaning of § 1623. Moreover, to characterize such an interview as an ancillary proceeding would contravene the long-established practice of resolving doubt concerning the ambit of criminal statutes in favor of lenity. Pp. 107-113.
10th Cir., 577 F.2d 119, reversed.
Daniel J. Sears, Denver, Colo., for petitioner.
Andrew L. Frey, Washington, D. C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Title IV of the Organized Crime Control Act of 1970, 18 U.S.C. § 1623 (1976 ed., Supp. I), prohibits false declarations made under oath "in any proceeding before or ancillary to any court or grand jury of the United States."1 This case turns on the scope of the term ancillary proceeding in § 1623, a phrase not defined in that provision or elsewhere in the Criminal Code. More specifically, we must determine whether an interview in a private attorney's office at which a sworn statement is given constitutes a proceeding ancillary to a court or grand jury within the meaning of the statute.
2
* On June 16, 1976, petitioner Robert Dunn testified before a federal grand jury under a grant of immunity pursuant to 18 U.S.C. § 6002.2 The grand jury was investigating illicit drug activity at the Colorado State Penitentiary where petitioner had been incarcerated. Dunn's testimony implicated a fellow inmate, Phillip Musgrave, in various drug-related offenses. Following petitioner's appearance, the grand jury indicted Musgrave for conspiracy to manufacture and distribute methamphetamine.
3
Several months later, on September 30, 1976, Dunn arrived without counsel in the office of Musgrave's attorney, Michael Canges. In the presence of Canges and a notary public, petitioner made an oral statement under oath in which he recanted his grand jury testimony implicating Musgrave. Canges subsequently moved to dismiss the indictment against Musgrave, alleging that it was based on perjured testimony. In support of this motion, the attorney submitted a transcript of Dunn's September 30 statement.
4
The District Court held an evidentiary hearing on Musgrave's motion to dismiss on October 21, 1976. At that hearing, petitioner, who was then represented by counsel, adopted the statement he had given in Canges' office and testified that only a small part of what he had told the grand jury was in fact true. App. 46. As a result of petitioner's testimony, the Government reduced the charges against Musgrave to misdemeanor possession of methamphetamine. See 21 U.S.C. § 844.
5
Petitioner was subsequently indicted on five counts of making false declarations in violation of 18 U.S.C. § 1623 (1976 ed., Supp. I). The indictment charged that Dunn's testimony before the grand jury was inconsistent with statements made "on September 30, 1976, while under oath as a witness in a proceeding ancillary to United States v. Musgrave, . . . to the degree that one of said declarations was false . . . ." App. 5-6.3 In response to petitioner's motion for a bill of particulars, the Government indicated that it would rely on the "inconsistent declarations" method of proof authorized by § 1623(c). Under that subsection, the Government must establish the materiality and inconsistency of declarations made in proceedings before or ancillary to a court or grand jury, but need not prove which of the declarations is false. See n. 1, supra.
6
At trial, the Government introduced over objection pertinent parts of Dunn's grand jury testimony, his testimony at the October 21 evidentiary hearing, and his sworn statement to Musgrave's attorney. After the Government rested its case, petitioner renewed his objections in a motion for acquittal. He contended that the September 30 statement was not made in a proceeding ancillary to a federal court or grand jury as required by § 1623(c). In addition, Dunn argued that use of his grand jury testimony to prove an inconsistent declaration would contravene the Government's promise of immunity, in violation of 18 U.S.C. § 6002 and the Fifth Amendment. The court denied the motion and submitted the case to the jury. Petitioner was convicted on three of the five counts of the indictment and sentenced to concurrent 5-year terms on each count.
7
The Court of Appeals for the Tenth Circuit affirmed. 577 F.2d 119 (1978). Although it agreed with petitioner that the interview in Canges' office was not an ancillary proceeding under § 1623, the court determined that the October 21 hearing at which petitioner adopted his September statement was a proceeding ancillary to a grand jury investigation. 577 F.2d, at 123. Acknowledging that the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the Court of Appeals construed this discrepancy as a nonprejudicial variance between the indictment and proof at trial. Id., at 123-124. The court also upheld the use of petitioner's immunized grand jury testimony to prove a § 1623 violation. In so ruling, the court stated that immunized testimony generally may not be used to establish an inconsistent declaration without a prior independent showing that the testimony is false. But, in the court's view, petitioner's unequivocal concession at the October hearing that he had testified falsely before the grand jury justified the Government's reliance on that testimony. 577 F.2d, at 125-126.
8
We granted certiorari, 439 U.S. 1045, 99 S.Ct. 719, 58 L.Ed.2d 703 (1978). Because we disagree with the Court of Appeals' ultimate disposition of the ancillary-proceeding issue, we reverse without reaching the question whether petitioner's immunized testimony was admissible to prove a violation of § 1623.
II
9
A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). In the instant case, since the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the Court of Appeals identified a variance between the pleadings and the Government's proof at trial. However, reasoning that petitioner's October 21 testimony was "inextricably related" to his September 30 declaration, the court concluded that petitioner could have anticipated that the prosecution would introduce the October testimony. 577 F.2d, at 123. The court therefore determined that the variance was not fatal to the Government's case. See Kotteakos v. United States, 328 U.S. 750, 757, 66 S.Ct. 1239, 1243, 90 L.Ed. 1557 (1946).
10
In our view, it is unnecessary to inquire, as did the Court of Appeals, whether petitioner was prejudiced by a variance between what was alleged in the indictment and what was proved at trial. For we discern no such variance. The indictment charged inconsistency between petitioner's statements in the September 30 interview and his grand jury testimony. That was also the theory on which the case was tried and submitted to the jury.4 Indeed, the October 21 testimony was introduced by the Government only in rebuttal to dispel any inference that petitioner's grand jury testimony was true. See Tr. 82-83. But while there was no variance between the indictment and proof at trial, there was a discrepancy between the basis on which the jury rendered its verdict and that on which the Court of Appeals sustained petitioner's conviction. Whereas the jury was instructed to rest its decision on Dunn's September statement, the Tenth Circuit predicated its affirmance on petitioner's October testimony. The Government concedes that this ruling was erroneous. Brief for United States 15, 35; Tr. of Oral Arg. 25. We agree.
11
To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused. See Eaton v. Tulsa, 415 U.S. 697, 698-699, 94 S.Ct. 1228, 1229-1230, 39 L.Ed.2d 693 (1974) (per curiam ); Garner v. Louisiana, 368 U.S. 157, 163-164, 82 S.Ct. 248, 251-252, 7 L.Ed.2d 207 (1961); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948); De Jonge v. iOregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937). There is, to be sure, no glaring distinction between the Government's theory at trial and the Tenth Circuit's analysis on appeal. The jury might well have reached the same verdict had the prosecution built its case on petitioner's October 21 testimony adopting his September 30 statement rather than on the September statement itself. But the offense was not so defined, and appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial. As we recognized in Cole v. Arkansas, supra, 333 U.S., at 201, 68 S.Ct., at 517, "[i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made." Thus, unless the September 30 interview constituted an ancillary proceeding, petitioner's conviction cannot stand.
III
12
Congress enacted § 1623 as part of the 1970 Organized Crime Control Act, Pub.L. 91-452, 84 Stat. 922, to facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries. S.Rep.No. 91-617, pp. 58-59 (1969). Invoking this broad congressional purpose, the Government argues for an expansive construction of the term ancillary proceeding. Under the Government's analysis, false swearing in an affidavit poses the same threat to the fact-finding process as false testimony in open court. Brief for United States 21. Thus, the Government contends that any statements made under oath for submission to a court, whether given in an attorney's office or in a local bar and grill, fall within the ambit of § 1623. See Tr. of Oral Arg. 31. In our judgment, the term "proceeding," which carries a somewhat more formal connotation, suggests that Congress had a narrower end in view when enacting § 1623. And the legislative history of the Organized Crime Control Act confirms that conclusion.
13
Section 1623 was a response to perceived evidentiary problems in demonstrating perjury under the existing federal statute, 18 U.S.C. § 1621.5 As Congress noted, the strict common-law requirements for establishing falsity which had been engrafted onto the federal perjury statute often made prosecution for false statements exceptionally difficult.6 By relieving the Government of the burden of proving which of two or more inconsistent declarations was false, see § 1623(c), Congress sought to afford "greater assurance that testimony obtained in grand jury and court proceedings will aid the cause of truth." S.Rep.No. 91-617, p. 59 (1969). But nothing in the language or legislative history of the statute suggests that Congress contemplated a relaxation of the Government's burden of proof with respect to all inconsistent statements given under oath. Had Congress intended such a result, it presumably would have drafted § 1623 to encompass all sworn declarations irrespective of whether they were made in proceedings before or ancillary to a court or grand jury. Particularly since Congress was aware that statements under oath were embraced by the federal perjury statute without regard to where they were given,7 the choice of less comprehensive language in § 1623 does not appear inadvertent.
14
That Congress intended § 1623 to sweep less broadly than the perjury statute is also apparent from the origin of the term ancillary proceeding. As initially introduced in Congress, the Organized Crime Control Act contained a version of § 1623 which encompassed only inconsistent statements made in any "trial, hearing, or proceeding before any court or grand jury."8 When asked to comment on the proposed statute, the Department of Justice noted that the scope of the inconsistent declarations provision was "not as inclusive" as the perjury statute. See Hearings on S. 30 et al. before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 372 (1969) (hereinafter S. 30 Hearings). Significantly, the Justice Department did not suggest that the provision be made coextensive with the perjury statute. However, in subsequent Senate Subcommittee hearings, Assistant Attorney General Wilson indicated, without elaboration, that the Department advocated "including [under § 1623] other testimony, preliminary testimony and other statements, in the perjury field." Id., at 389.
15
In response to that general suggestion, Senator McClellan, on behalf of the Subcommittee, sent a letter to the Assistant Attorney General clarifying its purpose:
16
"You also read Title IV not to cover 'pre-trial depositions, affidavits and certifications.' This was not our intent in drafting the bill. We had hoped that it would be applicable, for example, to situations such as [the] kind of pre-trial depositions that the enforcement of S. 1861 would present. If we included in the statute the phrase 'proceedings before or ancillary to any court or grand jury,' do you feel that this intent would be adequately expressed?" Id., at 409.9
17
The Government attaches great significance to the qualification, "for example," in Senator McClellan's letter. Because pretrial depositions were mentioned as illustrative, the Government interprets the term ancillary proceeding to subsume affidavits and certifications as well. But that is not the inference the Department of Justice originally drew from the Senator's letter. Responding to the proposed modification of § 1623, Assistant Attorney General Wilson did not advert to affidavits or certifications but stated only that
18
"[i]nclusion of the phrase 'proceedings before or ancillary to any court or grand jury' in the false statement provision would in our opinion adequately bring within the coverage of the provision pre-trial depositions such as that contained in S. 1861." S. 30 Hearings 411.
19
In our view, the Justice Department's contemporaneous rather than its current interpretation offers the more plausible reading of the Subcommittee's intent. Its attention having been drawn to the issue, had the Subcommittee wished to bring all affidavits and certifications within the statutory prohibition, Senator McClellan presumably would have so stated.
20
Finally, to construe the term ancillary proceeding in § 1623 as excluding statements given in less formal contexts than depositions would comport with Congress' use of the phrase in a related provision of the Organized Crime Control Act. Title II of the Act, 18 U.S.C. § 6002, authorizes extension of immunity to any witness who claims his privilege against self-incrimination "in a proceeding . . . ancillary to" a court, grand jury, or agency of the United States, or before Congress or one of its committees. See n. 2, supra. Although neither the House nor Senate Report defines the precise scope of § 6002, they both specify pretrial depositions as the sole example of what would constitute an ancillary proceeding under that provision. H.R.Rep.No. 91-1549, p. 42 (1970); S.Rep.No. 91-617, p. 145 (1969); U.S.Code Cong. & Admin.News 1970, p. 4007.
21
Thus, both the language and history of the Act support the Court of Appeals' conclusion that petitioner's September 30 interview "lack[ed] the degree of formality" required by § 1623. 577 F.2d, at 123.10 For the Government does not and could not seriously maintain that the interview in Canges' office constituted a deposition. See Tr. of Oral Arg. 25. Musgrave's counsel made no attempt to comply with the procedural safeguards for depositions set forth in Fed.Rule Crim.Proc. 15 and 18 U.S.C. § 3503. A court order authorizing the deposition was never obtained.11 Nor did petitioner receive formal notice of the proceeding or of his right to have counsel present.12 Indeed, petitioner did not even certify the transcript of the interview as accurate.13
22
To characterize such an interview as an ancillary proceeding would not only take liberties with the language and legislative history of § 1623, it would also contravene this Court's long-established practice of resolving questions concerning the ambit of a criminal statute in favor of lenity. Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1271, 39 L.Ed.2d 782 (1974); Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971); Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). This practice reflects not merely a convenient maxim of statutory construction. Rather, it is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972); United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939); McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931). Thus, to ensure that a legislature speaks with special clarity when marking the boundaries of criminal conduct, courts must decline to impose punishment for actions that are not " 'plainly and unmistakably' " proscribed. United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 410, 61 L.Ed. 857 (1917).
23
We cannot conclude here that Congress in fact intended or clearly expressed an intent that § 1623 should encompass statements made in contexts less formal than a deposition. Accordingly, we hold that petitioner's September 30 declarations were not given in a proceeding ancillary to a court or grand jury within the meaning of the statute.14
The judgment of the Court of Appeals is
24
Reversed.
25
Mr. Justice POWELL took no part in the consideration or decision of this case.
1
In pertinent part, 18 U.S.C. § 1623 (1976 ed., Supp. I) provides:
"(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
* * * * *
"(c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if—
"(1) each declaration was material to the point in question, and
"(2) each declaration was made within the period of the statute of limitations for the offense charged under this section.
"In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury. It shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true."
2
Under 18 U.S.C. § 6002:
"Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
"(1) a court or grand jury of the United States,
"(2) an agency of the United States, or
"(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order."
3
Each count alleged that a specific representation in the September 30 statement was inconsistent with a corresponding portion of petitioner's grand jury testimony. See App. 3-11.
4
The District Court instructed the jury that in order to convict petitioner, it had to determine beyond a reasonable doubt that petitioner "while under oath, made irreconcilably contradictory declarations . . . in any proceeding before or ancillary to a court or grand jury." Tr. 179. The court did not define the term ancillary proceeding, but admonished the jury to render its verdict on the charges alleged in the indictment, which specified June 16, 1976, and September 30, 1976, as the proceedings at which inconsistent statements were given. Id., at 175-176; App. 3-11. Moreover, both the Assistant United States Attorney and defense counsel focused their summations on the September 30 statement. See Tr. 151, 167.
5
Title 18 U.S.C. § 1621 provides:
"Whoever—
"(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
"(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;
"is guilty of perjury and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States."
6
In particular, Congress focused on the two-witness rule, under which "the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused." Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926); accord, Weiler v. United States, 323 U.S. 606, 608-610, 65 S.Ct. 548, 549-550, 89 L.Ed. 495 (1945). See S.Rep.No. 91-617, pp. 57-59 (1969).
7
See id., at 110-111; n. 5, supra.
8
In its entirety, the original version of § 1623(a) provided:
"Whoever, having taken an oath in any trial, hearing, or proceeding before any court or grand jury, in which a law of the United States authorizes the oath, knowingly falsifies fact, or makes any false, fictitious, or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined not more than $10,000 or imprisonment not more than five years, or both." S. 30, 91st Cong., 1st Sess., § 401 (1969).
9
The provision of S. 1861 to which the Senator adverted involved use of depositions in racketeering investigations. It is currently codified as 18 U.S.C. § 1968.
10
In arguing that petitioner's September 30 interview was an ancillary proceeding, the Government relies on United States v. Stassi, 583 F.2d 122 (CA3 1978), and United States v. Krogh, 366 F.Supp. 1255, 1256 (DC 1973). The defendant in Stassi was convicted under § 1623 of making statements in a Fed.Rule Crim.Proc. 11 guilty plea hearing that were irreconcilable with his declarations in an affidavit supporting a motion to vacate sentence. Without adverting to any legislative history, the Court of Appeals affirmed on the theory that a false affidavit "offends the administration of criminal justice as much as [other] false material declaration[s]." 583 F.2d, at 127. Insofar as Stassi's analysis is inconsistent with our decision here, we decline to follow it. And Krogh affords no support for the Government's position in this case since the court there held only that a sworn deposition taken in the office of an Assistant United States Attorney General was a proceeding ancillary to a grand jury investigation.
11
Title 18 U.S.C. § 3503(a) provides:
"whenever due to exceptional circumstances it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved, the court at any time after the filing of an indictment or information may upon motion of such party and notice to the parties order that the testimony of such witness be taken by deposition . . . ."
The language of Fed.Rule Crim.Proc. 15(a) is substantially the same.
12
See 18 U.S.C. §§ 3503(b), (c); Fed.Rule Crim.Proc. 15(b).
13
See App. 46; 18 U.S.C. § 3503(d); Fed.Rule Crim.Proc. 15(d).
14
The Government points out that if this Court reverses petitioner's conviction on the ground that the September 30 statement was not given in an ancillary proceeding, petitioner will be subject to reindictment for making declarations in the October 21 hearing inconsistent with his testimony in the June 16 grand jury proceeding. Thus, the Government urges us to reach the second question decided by the Court of Appeals concerning the use of petitioner's immunized testimony to prove a violation of § 1623. Brief for United States 36-37. We decline to render an advisory opinion based on the Government's suppositions not only that petitioner will be reindicted but also that he will be convicted after a trial at which the immunized testimony is introduced.
| 01
|
442 U.S. 114
99 S.Ct. 2198
60 L.Ed.2d 755
UNITED STATES, Petitioner,v.Milton Dean BATCHELDER.
No. 78-776.
Argued April 18, 1979.
Decided June 4, 1979.
Syllabus
Respondent was found guilty of violating 18 U.S.C. § 922(h), which is part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 (Act). That provision prohibits previously convicted felons from receiving a firearm that has traveled in interstate commerce. The District Court sentenced respondent under 18 U.S.C. § 924(a) to five years' imprisonment, the maximum term authorized for violation of § 922(h). The Court of Appeals affirmed the conviction but remanded for resentencing. Noting that the substantive elements of § 922(h) and 18 U.S.C.App. § 1202(a), which is contained in Title VII of the Act, are identical as applied to a convicted felon who unlawfully receives a firearm, the court interpreted the Act to allow no more than the 2-year maximum sentence provided by § 1202(a).
Held: A defendant convicted of violating § 922(h) is properly sentenced under § 924(a) even though his conduct also violates § 1202(a). Pp. 118-126.
(a) Nothing in the language, structure, or legislative history of the Act suggests that because of the overlap between §§ 922(h) and 1202(a), a defendant convicted under § 922(h) may be imprisoned for no more than the maximum term specified in § 1202(a). Rather, each substantive statute, in conjunction with its own sentencing provision operates independently of the other. Pp. 118-121.
(b) The Court of Appeals erroneously relied on three principles of statutory interpretation in construing § 1202(a) to override the penalties authorized by § 924(a). The doctrine that ambiguities in criminal statutes must be resolved in favor of lenity is not applicable here since there is no ambiguity to resolve. Nor can § 1202(a) be interpreted as implicitly repealing § 924(a) whenever a defendant's conduct might violate both sections. Legislative intent to repeal must be manifest in the " 'positive repugnancy between the provisions.' " United States v. Borden Co., 308 U.S. 188, 199, 60 S.Ct. 182, 188, 84 L.Ed. 181. In this case, the penalty provisions are fully capable of coexisting because they apply to convictions under different statutes. Finally, the maxim that statutes should be construed to avoid constitutional questions offers no assistance here, since this principle applies only when an alternative interpretation is fairly possible from the language of the statute. There is simply no basis in the Act for reading the term "five" in § 924(a) to mean "two." Pp. 121-122.
(c) The statutory provisions at issue are not void for vagueness because they unambiguously specify the activity proscribed and the penalties available upon conviction. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent that would a single statute authorizing alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied. P.123
(d) Nor are the statutes unconstitutional under the equal protection component or Due Process Clause of the Fifth Amendment on the theory that they allow the prosecutor unfettered discretion in selecting which of two penalties to apply. A prosecutor's discretion to choose between §§ 922(h) and 1202(a) is not "unfettered"; selectivity in the enforcement of criminal laws is subject to constitutional constraints. Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion. Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced. Pp. 123-125.
(e) The statutes are not unconstitutional as impermissibly delegating to the Executive Branch the Legislature's responsibility to fix criminal penalties. Having clearly informed the courts, prosecutors, and defendants of the permissible punishment alternatives available under each statute, Congress has fulfilled its duty. Pp.125-126.
581 F.2d 626, reversed.
Andrew J. Levander, Washington, D.C., for petitioner, pro hac vice.
Charles A. Bellows, Chicago, Ill., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
At issue in this case are two overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus Act).1 sBoth prohibit convicted felons from receivingfirearms, but each authorizes different maximum penalties. We must determine whether a defendant convicted of the offense carrying the greater penalty may be sentenced only under the more lenient provision when his conduct violates both statutes.
2
* Respondent, a previously convicted felon, was found guilty of receiving a firearm that had traveled in interstate commerce, in violation of 18 U.S.C. § 922(h).2 The District Court sentenced him under 18 U.S.C. § 924(a) to five years' imprisonment, the maximum term authorized for violation of § 922(h).3
3
The Court of Appeals affirmed the conviction but, by a divided vote, remanded for resentencing. 581 F.2d 626 (CA7 1978). The majority recognized that respondent had been indicted and convicted under § 922(h) and that § 924(a) permits five years' imprisonment for such violations. 581 F.2d, at 629. However, noting that the substantive elements of § 922(h) and 18 U.S.C.App. § 1202(a) are identical as applied to a convicted felon who unlawfully receives a firearm, the court interpreted the Omnibus Act to allow no more than the 2-year maximum sentence provided by § 1202(a). 581 F.2d, at 629.4 In so holding, the Court of Appeals relied on three principles of statutory construction. Because, in its view, the "arguably contradict[ory]" penalty provisions for similar conduct and the "inconclusive" legislative history raised doubt whether Congress had intended the two penalty provisions to coexist, the court first applied the doctrine that ambiguities in criminal legislation are to be resolved in favor of the defendant. Id. at 630. Second, the court determined that since § 1202(a) was "Congress' last word on the issue of penalty," it may have implicitly repealed the punishment provisions of § 924(a). 581 F.2d, at 630. Acknowledging that the "first two principles cannot be applied to these facts without some difficulty," the majority also invoked the maxim that a court should, if possible, interpret a statute to avoid constitutional questions. Id., at 630-631. Here, the court reasoned, the "prosecutor's power to select one of two statutes that are identical except for their penalty provisions" implicated "important constitutional protections." Id., at 631.
4
The dissent found no basis in the Omnibus Act or its legislative history for engrafting the penalty provisions of § 1202(a) onto §§ 922(h) and 924(a). 581 F.2d, at 638-639. Relying on "the long line of cases . . . which hold that where an act may violate more than one criminal statute, the government may elect to prosecute under either, even if [the] defendant risks the harsher penalty, so long as the prosecutor does not discriminate against any class of defendants," the dissent further concluded that the statutory scheme was constitutional. Id., at 637.
5
We granted certiorari, 439 U.S. 1066, 99 S.Ct. 830, 59 L.Ed.2d 30 (1979), and now reverse the judgment vacating respondent's 5-year prison sentence.
II
6
This Court has previously noted the partial redundancy of §§ 922(h) and 1202(a), both as to the conduct they proscribe and the individuals they reach. See United States v. Bass, 404 U.S. 336, 341-343, and n.9, 92 S.Ct. 515, 519-20, 30 L.Ed.2d 488 (1971). However, we find nothing in the language, structure, or legislative history of the Omnibus Act to suggest that because of this overlap, a defendant convicted under § 922(h) may be imprisoned for no more than the maximum term specified in § 1202(a). As we read the Act, each substantive statute, in conjunction with its own sentencing provision, operates independently of the other.
7
Section 922(h), contained in Title IV of the Omnibus Act, prohibits four categories of individuals from receiving "any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." See n.2, supra. Persons who violate Title IV are subject to the penalties provided by § 924(a), which authorizes a maximum fine of $5,000 and imprisonment for up to five years. See n.3, supra. Section 1202(a), located in Title VII of the Omnibus Act, forbids five categories of individuals from "receiv[ing], possess[ing], or transport[ing] in commerce or affecting commerce . . . any firearm." This same section authorizes a maximum fine of $10,000 and imprisonment for not more than two years. See n.4, supra.
8
While §§ 922 and 1202(a) both prohibit convicted felons such as petitioner from receiving firearms5 each Title unambiguously specifies the penalties available to enforce its substantive proscriptions. Section 924(a) applies without exception to "[w]hoever violates any provision" of Title IV, and § 922(h) is patently such a provision. See 18 U.S.C., ch. 44; 82 Stat. 226, 234; S.Rep. No. 1097, 90th Cong., 2d Sess., 20-25, 117 (1968); U.S.Code Cong. & Admin.News 1968, p. 2112. Similarly, because Title VII's substantive prohibitions and penalties are both enumerated in § 1202, its penalty scheme encompasses only criminal prosecutions brought under that provision. On their face, these statutes thus establish that § 924(a) alone delimits the appropriate punishment for violations of § 922(h).
9
That Congress intended to enact two independent gun control statutes, each fully enforceable on its own terms, is confirmed by the legislative history of the Omnibus Act. Section 922(h) derived from § 2(f) of the Federal Firearms Act of 1938, 52 Stat. 1251, and § 5 of that Act, 52 Stat. 1252, authorized the same maximum prison term as § 924(a). Title IV of the Omnibus Act merely recodified with some modification this "carefully constructed package of gun control legislation," which had been in existence for many years. Scarborough v. United States, 431 U.S. 563, 570, 97 S.Ct. 1963, 1967, 52 L.Ed.2d 582 (1977); see United States v. Bass, supra, 404 U.S., at 343 n.10, 92 S.Ct., at 520; 15 U.S.C. §§ 902, 905 (1964 ed.).
10
By contrast, Title VII was a "last-minute" floor amendment, "hastily passed, with little discussion, no hearings, and no report." United States v. Bass, supra, at 344, and n.11, 92 S.Ct., at 520; see Scarborough v. United States, supra, 431 U.S., at 569-570, and n.9, 97 S.Ct., at 1967. And the meager legislative debates involving that amendment demonstrate no intention to alter the terms of Title IV. Immediately before the Senate passed Title VII, Senator Dodd inquired whether it would substitute for Title IV. 114 Cong.Rec. 14774 (1968). Senator Long, the sponsor of the amendment, replied that § 1202 would "take nothing from" but merely "add to" Title IV. 114 Cong.Rec. 14774 (1968). Similarly, although Title VII received only passing mention in House discussions of the bill, Representative Machen made clear that the amendment would "complement . . . the gun-control legislation contained in title IV." Id., at 16286. Had these legislators intended to pre-empt Title IV in cases of overlap, they presumably would not have indicated that the purpose of Title VII was to complement Title IV. See Scarborough v. United States, supra, at 573, 97 S.Ct., at 1968.6 These discussions, together with the language and structure of the Omnibus Act, evince Congress' clear understanding that the two Titles would be applied independently.7
11
In construing § 1202(a) to override the penalties authorized by § 924(a), the Court of Appeals relied, we believe erroneously, on three principles of statutory interpretation. First, the court invoked the well-established doctrine that ambiguities in criminal statutes must be resolved in favor of lenity. E. g., Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971); United States v. Bass, 404 U.S., at 347, 92 S.Ct., at 522; United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978); United States v. Naftalin, 441 U.S. 768, 778-779, 99 S.Ct. 2077, 2084, 60 L.Ed.2d 624 (1979); Dunn v. United States, 442 U.S., at 112-113, 99 S.Ct., at 2197. Although this principle of construction applies to sentencing as well as substantive provisions, see Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 913-914, 55 L.Ed.2d 70 (1978), in the instant case there is no ambiguity to resolve. Respondent unquestionably violated § 922(h), and § 924(a) unquestionably permits five years' imprisonment for such a violation. That § 1202(a) provides different penalties for essentially the same conduct is no justification for taking liberties with unequivocal statutory language. See Barrett v. United States, 423 U.S. 212, 217, 96 S.Ct. 498, 501, 46 L.Ed.2d 450 (1976). By its express terms, § 1202(a) limits its penalty scheme exclusively to convictions obtained under that provision. Where as here, "Congress has conveyed its purpose clearly, . . . we decline to manufacture ambiguity where none exists." United States v. Culbert, supra, 435 U.S., at 379, 98 S.Ct., at 1117.
12
Nor can § 1202(a) be interpreted as implicitly repealing § 924(a) whenever a defendant's conduct might violate both Titles. For it is "not enough to show that the two statutes produce differing results when applied to the same factual situation." Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976). Rather, the legislative intent to repeal must be manifest in the " 'positive repugnancy between the provisions.' " United States v. Borden Co., 308 U.S. 188, 199, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939). In this case, however, the penalty provisions are fully capable of coexisting because they apply to convictions under different statutes.
13
Finally, the maxim that statutes should be construed to avoid constitutional questions offers no assistance here. This " 'cardinal principle' of statutory construction . . . is appropriate only when [an alternative interpretation] is 'fairly possible' " from the language of the statute. Swain v. Pressley, 430 U.S. 372, 378 n.11, 97 S.Ct. 1224, 1228, 51 L.Ed.2d 411 (1977); see Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 334, 92 L.Ed. 297 (1948); Shapiro v. United States, 335 U.S. 1, 31, 68 S.Ct. 1375, 1391, 92 L.Ed. 1787 (1948). We simply are unable to discern any basis in the Omnibus Act for reading the term "five" in § 924(a) to mean "two."
III
14
In resolving the statutory question, the majority below expressed "serious doubts about the constitutionality of two statutes that provide different penalties for identical conduct." 581 F.2d, at 633-634 (footnote omitted). Specifically, the court suggested that the statutes might (1) be void for vagueness, (2) implicate "due process and equal protection interest[s] in avoiding excessive prosecutorial discretion and in obtaining equal justice," and (3) constitute an impermissible delegation of congressional authority. Id., at 631-633. We find no constitutional infirmities.
A.
15
It is a fundamental tenet of due process that "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). A criminal statute is therefore invalid if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). See Connally v. General Construction Co., 269 U.S. 385, 391-393, 46 S.Ct. 126, 127-128, 70 L.Ed. 322 (1926); Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972); Dunn v. United States, 442 U.S., at 112-113, 99 S.Ct., at 2197. So too, vague sentencing provisions may post constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute. SeeUnited States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948); United States v. Brown, 333 U.S. 18, 68 S.Ct. 376, 92 L.Ed. 442 (1948); cf. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).
16
The provisions in issue here, however, unambiguously specify the activity proscribed and the penalties available upon conviction. See supra, at 119. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.
B
17
This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecutes under either so long as it does not discriminate against any class of defendants. See United States v. Beacon Brass Co., 344 U.S. 43, 45-46, 73 S.Ct. 77, 79, 97 L.Ed. 61 (1952); Rosenberg v. United States, 346 U.S. 273, 294, 73 S.Ct. 1152, 1163, 97 L.Ed. 1607 (1953) (Clark, J., concurring, joined by five Members of the Court); Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962); SEC v. National Securities, Inc., 393 U.S. 453, 468, 89 S.Ct. 564, 572, 21 L.Ed.2d 668 (1969); United States v. Naftalin, 441 U.S., at 778, 99 S.Ct., at 2084. Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion. See Confiscation Cases, 7 Wall. 454, 19 L.Ed. 196 (1869); United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978).
18
The Court of Appeals acknowledged this "settled rule" allowing prosecutorial choice. 581 F.2d, at 632. Nevertheless, relying on the dissenting opinion in Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956),8 the court distinguished overlapping statutes with identical standards of proof from provisions that vary in some particular. 581 F.2d, at 632-633. In the court's view, when two statutes prohibit "exactly the same conduct," the prosecutor's "selection of which of two penalties to apply" would be "unfettered." Id., at 633, and n.11. Because such prosecutorial discretion could produce "unequal justice," the court expressed doubt that this form of legislative redundancy was constitutional. Id., at 631. We find this analysis factually and legally unsound.
19
Contrary to the Court of Appeals' assertions, a prosecutor's discretion to choose between §§ 922(h) and 1202(a) is not "unfettered." Selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints.9 And a decision to proceed under § 922(h) does not empower the Government to predetermine ultimate criminal sanctions. Rather, it merely enables the sentencing judge to impose a longer prison sentence than § 1202(a) would permit and precludes him from imposing the greater fine authorized by § 1202(a). More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. Cf. Rosenberg v. United States, supra, 346 U.S., at 294, 73 S.Ct., at 1163 (Clark, J., concurring); Oyler v. Boles, supra, 368 U.S., at 456, 82 S.Ct., at 505. Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution neither is he entitled to choose the penalty scheme under which he will be sentenced. See U.S.Const., Art. II, §§ 2, 3; 28 U.S.C. §§ 515, 516; United States v. Nixon, supra, 418 U.S., at 694, 94 S.Ct., at 3100.
C
20
Approaching the problem of prosecutorial discretion from a slightly different perspective, the Court of Appeals postulated that the statutes might impermissibly delegate to the Executive Branch the Legislature's responsibility to fix criminal penalties. See United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812); United States v. Grimaud, 220 U.S. 506, 516-517, 519, 31 S.Ct. 480, 482-483, 484, 55 L.Ed. 563 (1911); United States v. Evans, 333 U.S., at 486, 68 S.Ct., at 636. We do not agree. The provisions at issue plainly demarcate the range of penalties that prosecutors and judges may seek and impose. In light of that specificity, the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing the criminal laws. Having informed the courts, prosecutors, and defendants of the permissible punishment alternatives available under each Title, Congress has fulfilled its duty. See United States v. Evans, supra, at 486, 492, 495, 68 S.Ct., at 636, 639, 640.
21
Accordingly, the judgment of the Court of Appeals is
22
Reversed.
1
82 Stat. 197.
2
In pertinent part, 18 U.S.C. § 922(h) provides:
"It shall be unlawful for any person—
"(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
"(2) who is a fugitive from justice;
"(3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug . . . or narcotic drug . . .; or
"(4) who has been adjudicated as a mental defective or who has been committed to any mental institution;
"to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
3
Title 18 U.S.C. § 924(a) provides in relevant part:
"Whoever violates any provision of this chapter . . . shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine."
4
Section 1202(a) states:
"Any person who—
"(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
"(2) has been discharged from the Armed Forces under dishonorable conditions, or
"(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
"(4) having been a citizen of the United States has renounced his citizenship, or
"(5) being an alien is illegally or unlawfully in the United States,
"and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both." 18 U.S.C.App. § 1202(a).
5
Even in the case of convicted felons, however, the two statutes are not coextensive. For example, Title VII defines a felony as
"any offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less." 18 U.S.C.App. § 1202(c)(2).
Under Title IV, "a crime punishable by imprisonment for a term exceeding one year," 18 U.S.C. § 922(h)(1), excludes
"(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices . . ., or
"(B) any State offense (other than one involving a firearm or explosive) classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." 18 U.S.C. § 921(a)(20).
In addition, the Commerce Clause elements of §§ 922(h) and 1202(a) may vary slightly. See Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976); Scarborough v. United States, 431 U.S. 563, 571-572, 97 S.Ct. 1963, 1968, 52 L.Ed.2d 582 (1977).
6
Four months after enacting the Omnibus Act, the same Congress amended and re-enacted Titles IV and VII as part of the Gun Control Act of 1968. 82 Stat. 1213. This latter Act also treats the provisions of Titles IV and VII as independent and self-contained. Title I of the Gun Control Act amended Title IV, compare 82 Stat. 225 with 82 Stat. 1214, and Title III of the Gun Control Act amended Title VII. Compare 82 Stat. 236 with 82 Stat. 1236. The accompanying legislative Reports nowhere indicate that the sentencing scheme of § 1202(a) was to govern convictions under § 922. See H.R.Conf.Rep. No. 1956, 90th Cong., 2d Sess., 31, 34 (1968); S.Rep. No. 1501, 90th Cong., 2d Sess., 21, 37 (1968); U.S.Code Cong. & Admin.News 1968, p. 4410.
7
The anomalies created by the Court of Appeals' decision further suggest that Congress must have intended only the penalties specified in § 924(a) to apply to violations of § 922(h). For example, a person who received a firearm while under indictment for murder would be subject to five years' imprisonment, since only § 922(h) includes those under indictment for a felony. 18 U.S.C. § 922(h)(1). If he received the firearm after his conviction, however, the term of imprisonment could not exceed two years. Similarly, because § 922(h) alone proscribes receipt of ammunition, a felon who obtained a single bullet could receive a 5-year sentence, while receipt of a firearm would be punishable by no more than two years' imprisonment under § 1202(a). In addition, the Court of Appeals' analysis leaves uncertain the result that would obtain if a sentencing judge wished to impose a maximum prison sentence and a maximum fine for conduct violative of both Titles. The doctrine of lenity would suggest that the $5,000 maximum of § 924(a) and the 2-year maximum of § 1202(a) would apply. However, if the doctrine of implied repeal controls, arguably the $10,000 fine authorized by § 1202(a) could be imposed for a violation of § 922(h). See infra, at 122.
8
Berra involved two tax evasion statutes, which the Court interpreted as proscribing identical conduct. The defendant, who was charged and convicted under the felony provision, argued that the jury should have been instructed on the misdemeanor offense as well. The Court rejected this contention and refused to consider whether the defendant's sentence was invalid because in excess of the maximum authorized by the misdemeanor statute. The dissent urged that permitting the prosecutor to control whether a particular act would be punished as a misdemeanor or a felony raised "serious constitutional questions." 351 U.S., at 139-140, 76 S.Ct., at 691.
9
The Equal Protection Clause prohibits selective enforcement "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 (1962). Respondent does not allege that his prosecution was motivated by improper considerations.
| 01
|
442 U.S. 200
99 S.Ct. 2248
60 L.Ed.2d 824
Irving Jerome DUNAWAY, Petitioner,v.State of NEW YORK.
No. 78-5066.
Argued March 21, 1979.
Decided June 5, 1979.
Syllabus
A Rochester, N. Y., police detective questioned a jail inmate, the supposed source of a lead implicating petitioner in an attempted robbery and homicide, but learned nothing that supplied "enough information to get a warrant" for petitioner's arrest. Nevertheless, the detective ordered other detectives to "pick up" petitioner and "bring him in." Petitioner was then taken into custody, and although not told that he was under arrest, he would have been physically restrained if he had attempted to leave. He was driven to police headquarters and placed in an interrogation room, where he was questioned by officers after being given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. He waived counsel and eventually made statements and drew sketches that incriminated him in the crime. At his state-court trial, his motions to suppress the statements and sketches were denied, and he was convicted. The New York appellate courts affirmed the conviction, but this Court vacated the judgment, and remanded for further consideration in light of the supervening decision in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, which held that there is no per se rule that Miranda warnings in and of themselves suffice to cure a Fourth Amendment violation involved in obtaining inculpatory statements during custodial interrogation following a formal arrest on less than probable cause, and that in order to use such statements, the prosecution must show not only that the statements meet the Fifth Amendment voluntariness standard, but also that the causal connection between the statements and the illegal arrest is broken sufficiently to purge the primary taint of the illegal arrest in light of the distinct policies and interests of the Fourth Amendment. On remand from the New York Court of Appeals, the trial court granted petitioner's motion to suppress, but the Appellate Division of the New York Supreme Court reversed, holding that although the police lacked probable cause to arrest petitioner, law enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable period of time under carefully controlled conditions which are ample to protect the individual's Fifth and Sixth Amendment rights, and that even if petitioner's detention were illegal, the taint of such detention was sufficiently attenuated to allow the admission of his statements and sketches.
Held:
1. The Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they seized petitioner and transported him to the police station for interrogation. Pp. 206-216.
(a) Petitioner was "seized" in the Fourth Amendment sense when he was taken involuntarily to the police station, and the State concedes that the police lacked probable cause to arrest him before his incriminating statement during interrogation. Pp. 207.
(b) Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, which held that limited "stop and frisk" searches for weapons are so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment "seizures" reasonable can be replaced by a test balancing the limited violation of individual privacy against the opposing interests in crime prevention and detection and in the police officer's safety, and the Terry case's progeny, do not support the application of a balancing test so as to hold that "seizures" such as that in this case may be justified by mere "reasonable suspicion." The narrow intrusions in Terry and its progeny were judged by a balancing test rather than the general rule requiring probable cause only because those intrusions fell so far short of the kind of intrusion associated with an arrest. For all but those narrowly defined intrusions, the requisite balancing has been performed in centuries of precedent and is embodied in the principle that seizures are reasonable only if supported by probable cause. Pp. 208-214.
(c) The treatment of petitioner, whether or not technically characterized as an arrest, was in important respects indistinguishable from a traditional arrest and must be supported by probable cause. Detention for custodial interrogation regardless of its label—intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. Cf. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676; Brown v. Illinois, supra. Pp. 214-216.
2. The connection between the unconstitutional police conduct and the incriminating statements and sketches obtained during petitioner's illegal detention was not sufficiently attenuated to permit the use at trial of the statements and sketches. Pp. 216-219.
(a) Even though proper Miranda warnings may have been given and petitioner's statements may have been "voluntary" for purposes of the Fifth Amendment, "[t]he exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth." Brown v. Illinois, supra, 422 U.S. at 601, 95 S.Ct. 2254. While a confession after proper Miranda warnings may be found "voluntary" for Fifth Amendment purposes, this type of "voluntariness" is merely a threshold requirement for Fourth Amendment analysis. Pp. 216-217.
(b) Under Fourth Amendment analysis, which focuses on "the causal connection between the illegality and the confession," Brown v. Illinois, supra, at 603, 95 S.Ct. 2254, factors to be considered in determining whether the confession is obtained by exploitation of an illegal arrest include: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. Here, petitioner was admittedly seized without probable cause in the hope that something might turn up, and confessed without any intervening event of significance. Cf. Brown v. Illinois, supra. Pp. 217-219.
61 A.D.2d 299, 402 N.Y.S.2d 490, reversed.
Edward John Nowak, Rochester, N. Y., for petitioner.
Melvin Bressler, Rochester, N. Y., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
We decide in this case the question reserved 10 years ago in Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969), namely, "the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest." Id., at 106, 90 S.Ct., at 293.
2
* On March 26, 1971, the proprietor of a pizza parlor in Rochester, N.Y., was killed during an attempted robbery. On August 10, 1971, Detective Anthony Fantigrossi of the Rochester Police was told by another officer that an informant had supplied a possible lead implicating petitioner in the crime. Fantigrossi questioned the supposed source of the lead—a jail inmate awaiting trial for burglary—but learned nothing that supplied "enough information to get a warrant" for petitioner's arrest. App. 60.1 Nevertheless, Fantigrossi ordered other detectives to "pick up" petitioner and "bring him in." Id., at 54. Three detectives located petitioner at a neighbor's house on the morning of August 11. Petitioner was taken into custody; although he was not told he was under arrest, he would have been physically restrained if he had attempted to leave. Opinion in People v. Dunaway (Monroe County Ct., Mar. 11, 1977), App. 116, 117. He was driven to police headquarters in a police car and placed in an interrogation room, where he was questioned by officers after being given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Petitioner waived counsel and eventually made statements and drew sketches that incriminated him in the crime.2
3
At petitioner's jury trial for attempted robbery and felony murder, his motions to suppress the statements and sketches were denied, and he was convicted. On appeal, both the Appellate Division of the Fourth Department and the New York Court of Appeals initially affirmed the conviction without opinion. 42 A.D.2d 689, 346 N.Y.S.2d 779 (1973), aff'd 35 N.Y.2d 741, 361 N.Y.S.2d 912, 320 N.E.2d 646 (1974). However, this Court granted certiorari, vacated the judgment, and remanded the case for further consideration in light of the Court's supervening decision in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 705 (1975). The petitioner in Brown, like petitioner Dunaway, made inculpatory statements after receiving Miranda warnings during custodial interrogation following his seizure—in that case a formal arrest on less than probable cause. Brown's motion to suppress the statements was also denied and the statements were used to convict him. Although the Illinois Supreme Court recognized that Brown's arrest was unlawful, it affirmed the admission of the statements on the ground that the giving of Miranda warnings served to break the causal connection between the illegal arrest and the giving of the statements. This Court reversed, holding that the Illinois courts erred in adopting a per se rule that Miranda warnings in and of themselves sufficed to cure the Fourth Amendment violation; rather the Court held that in order to use such statements, the prosecution must show not only that the statements meet the Fifth Amendment voluntariness standard, but also that the causal connection between the statements and the illegal arrest is broken sufficiently to purge the primary taint of the illegal arrest in light of the distinct policies and interests of the Fourth Amendment.
4
In compliance with the remand, the New York Court of Appeals directed the Monroe County Court to make further factual findings as to whether there was a detention of petitioner, whether the police had probable cause, "and, in the event there was a detention and probable cause is not found for such detention, to determine the further question as to whether the making of the confessions was rendered infirm by the illegal arrest (see Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, supra )." People v. Dunaway, 38 N.Y.2d 812, 813-814, 382 N.Y.S.2d 40, 41, 345 N.E.2d 583, 584 (1975).
5
The County Court determined after a supplementary suppression hearing that Dunaway's motion to suppress should have been granted. Although reaffirming that there had been "full compliance with the mandate of Miranda v. Arizona," the County Court found that "this case does not involve a situation where the defendant voluntarily appeared at police headquarters in response to a request of the police . . . ." App. 117. The State's attempt to justify petitioner's involuntary investigatory detention on the authority of People v. Morales, 22 N.Y.2d 55, 290 N.Y.S.2d 898, 238 N.E.2d 307 (1968)—which upheld a similar detention on the basis of information amounting to less than probable cause for arrest—was rejected on the grounds that the precedential value of Morales was questionable,3 and that the controlling authority was the "strong language" in Brown v. Illinois indicating "disdain for custodial questioning without probable cause to arrest."4 The County Court further held that "the factual predicate in this case did not amount to probable cause sufficient to support the arrest of the defendant," that "the Miranda warnings by themselves did not purge the taint of the defendant's illegal seizure[,] Brown v. Illinois, supra, and [that] there was no claim or showing by the People of any attenuation of the defendant's illegal detention," App. 121. Accordingly petitioner's motion to suppress was granted. Ibid.
6
A divided Appellate Division reversed. Although agreeing that the police lacked probable cause to arrest petitioner, the majority relied on the Court of Appeals' reaffirmation, subsequent to the County Court's decision, that " '[l]aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual's Fifth and Sixth Amendment rights'." 61 A.D.2d 299, 302, 402 N.Y.S.2d 490, 492 (1978), quoting People v. Morales, 42 N.Y.2d 129, 135, 397 N.Y.S.2d 587, 590, 366 N.E.2d 248, 251 (1977). The Appellate Division also held that even if petitioner's detention were illegal, the taint of his illegal detention was sufficiently attenuated to allow the admission of his statements and sketches. The Appellate Division emphasized that petitioner was never threatened or abused by the police and purported to distinguish Brown v. Illinois.5 The Court of Appeals dismissed petitioner's application for leave to appeal. App. 134.
7
We granted certiorari, 439 U.S. 979, 99 S.Ct. 563, 58 L.Ed.2d 649 (1978), to clarify the Fourth Amendment's requirements as to the permissible grounds for custodial interrogation and to review the New York court's application of Brown v. Illinois. We reverse.
II
8
We first consider whether the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they took petitioner into custody, transported him to the police station, and detained him there for interrogation.
9
The Fourth Amendment, applicable to the States through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), provides: "The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause . . . ." There can be little doubt that petitioner was "seized" in the Fourth Amendment sense when he was taken involuntarily to the police station.6 And respondent State concedes that the police lacked probable cause to arrest petitioner before his incriminating statement during interrogation.7 Nevertheless respondent contends that the seizure of petitioner did not amount to an arrest and was therefore permissible under the Fourth Amendment because the police had a "reasonable suspicion" that petitioner possessed "intimate knowledge about a serious and unsolved crime." Brief for Respondent 10. We disagree.
10
Before Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Fourth Amendment's guarantee against unreasonable seizures of persons was analyzed in terms of arrest, probable cause for arrest, and warrants based on such probable cause. The basic principles were relatively simple and straightforward: The term "arrest" was synonymous with those seizures governed by the Fourth Amendment. While warrants were not required in all circumstances,8 the requirement of probable cause, as elaborated in numerous precedents,9 was treated as absolute.10 The "long-prevailing standards" of probable cause embodied "the best compromise that has been found for accommodating [the] often opposing interests" in "safeguard[ing] citizens from rash and unreasonable interferences with privacy" and in "seek[ing] to give fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest "reasonable" under the Fourth Amendment. The standard applied to all arrests, without the need to "balance" the interests and circumstances involved in particular situations. Cf. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
11
Terry for the first time recognized an exception to the requirement that Fourth Amendment seizures of persons must be based on probable cause. That case involved a brief, on-the-spot stop on the street and a frisk for weapons, a situation that did not fit comfortably within the traditional concept of an "arrest." Nevertheless, the Court held that even this type of "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat" constituted a "serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment," 392 U.S., at 20, 17, 88 S.Ct., at 1879, 1877, and therefore "must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." Id., at 20, 88 S.Ct., at 1879. However, since the intrusion involved in a "stop and frisk" was so much less severe than that involved in traditional "arrests," the Court declined to stretch the concept of "arrest" and the general rule requiring probable cause to make arrests "reasonable" under the Fourth Amendment—to cover such intrusions. Instead, the Court treated the stop-and-frisk intrusion as a sui generis "rubric of police conduct," ibid. And to determine the justification necessary to make this specially limited intrusion "reasonable" under the Fourth Amendment, the Court balanced the limited violation of individual privacy involved against the opposing interests in crime prevention and detection and in the police officer's safety. Id., at 22-27, 88 S.Ct., at 1880-1883. As a consequence, the Court established "a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Id., at 27, 88 S.Ct., at 1883.11 Thus, Terry departed from traditional Fourth Amendment analysis in two respects. First, it defined a special category of Fourth Amendment "seizures" so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment "seizures" reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons.
12
Because Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope. Terry itself involved a limited, on-the-street frisk for weapons.12 Two subsequent cases which applied Terry also involved limited weapons frisks. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (frisk for weapons on basis of reasonable suspicion); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (order to get out of car is permissible "de minimis" intrusion after car is lawfully detained for traffic violations; frisk for weapons justified after "bulge" observed in jacket). United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), applied Terry in the special context of roving border patrols stopping automobiles to check for illegal immigrants. The investigative stops usually consumed less than a minute and involved "a brief question or two." 422 U.S., at 880, 95 S.Ct., at 2579. The Court stated that "[b]ecause of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest." Ibid.13 See alsoUnited States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (fixed checkpoint to stop and check vehicles for aliens); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (random checks for drivers' licenses and proper vehicle registration not permitted on less than articulable reasonable suspicion).
13
Respondent State now urges the Court to apply a balancing test, rather than the general rule, to custodial interrogations, and to hold that "seizures" such as that in this case may be justified by mere "reasonable suspicion."14 Terry and its progeny clearly do not support such a result. The narrow intrusions involved in those cases were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the "long-prevailing standards" of probable cause, Brinegar v. United States, 338 U.S., at 176, 69 S.Ct., at 1311, only because these intrusions fell far short of the kind of intrusion associated with an arrest. Indeed, Brignoni-Ponce expressly refused to extend Terry in the manner respondent now urges. The Court there stated: "The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause." 422 U.S., at 881-882, 95 S.Ct., at 2580. (emphasis added). Accord, United States v. Martinez-Fuerte, supra, 428 U.S., at 567, 96 S.Ct., at 3087.
14
In contrast to the brief and narrowly circumscribed intrusions involved in those cases, the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was "free to go"; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment's requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an "arrest" under state law. The mere facts that petitioner was not told he was under arrest, was not "booked," and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, see Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), obviously do not make petitioner's seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any "exception" that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are "reasonable" only if based on probable cause.
15
The central importance of the probable-cause requirement to the protection of a citizen's privacy afforded by the Fourth Amendment's guarantees cannot be compromised in this fashion. "The requirement of probable cause has roots that are deep in our history." Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959). Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that "common rumor or report, suspicion, or even 'strong reason to suspect' was not adequate to support a warrant for arrest." Id., at 101, 80 S.Ct., at 170 (footnotes omitted). The familiar threshold standard of probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the "reasonableness" requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary to the implementation of a workable rule. See Brinegar v. United States, supra, 338 U.S., at 175-176, 69 S.Ct., at 1310-1311.
16
In effect, respondent urges us to adopt a multifactor balancing test of "reasonable police conduct under the circumstances" to cover all seizures that do not amount to technical arrests.15 But the protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the "often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.16 Indeed, our recognition of these dangers, and our consequent reluctance to depart from the proved protections afforded by the general rule, are reflected in the narrow limitations emphasized in the cases employing the balancing test. For all but those narrowly defined intrusions, the requisite "balancing" has been performed in centuries of precedent and is embodied in the principle that seizures are "reasonable" only if supported by probable cause.
17
Moreover, two important decisions since Terry confirm the conclusion that the treatment of petitioner, whether or not it is technically characterized as an arrest, must be supported by probable cause. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 679 (1969), decided the Term after Terry, considered whether fingerprints taken from a suspect detained without probable cause must be excluded from evidence. The State argued that the detention "was of a type which does not require probable cause," 394 U.S., at 726, 89 S.Ct., at 1397, because it occurred during an investigative, rather than accusatory, stage, and because it was for the sole purpose of taking fingerprints. Rejecting the State's first argument, the Court warned:
18
"[T]o argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment. Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrests' or 'investigatory detentions.' " Id., at 726-727, 89 S.Ct., at 1397.
19
The State's second argument in Davis was more substantial, largely because of the distinctions between taking fingerprints and interrogation:
20
"Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person's prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eye witness identifications or confessions and is not subject to such abuses as the improper line-up and the 'third degree.' Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time." Id., at 727, 89 S.Ct., at 1398.
21
In Davis, however, the Court found it unnecessary to decide the validity of a "narrowly circumscribed procedure for obtaining" the fingerprints of suspects without probable cause—in part because, as the Court emphasized, "petitioner was not merely fingerprinted during the . . . detention but also subjected to interrogation." Id., at 728, 89 S.Ct., at 1398 (emphasis added). The detention therefore violated the Fourth Amendment.
22
Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), similarly disapproved arrests made for "investigatory" purposes on less than probable cause. Although Brown's arrest had more of the trappings of a technical formal arrest than petitioner's, such differences in form must not be exalted over substance.17 Once in the police station, Brown was taken to an interrogation room, and his experience was indistinguishable from petitioner's. Our condemnation of the police conduct in Brown fits equally the police conduct in this case:
23
"The impropriety of the arrest was obvious; awareness of the fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was 'for investigation' or for 'questioning.' . . . The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up." Id., at 605, 95 S.Ct., at 2262.
24
See also, id., at 602, 95 S.Ct., at 2261.
25
These passages from Davis and Brown reflect the conclusion that detention for custodial interrogation—regardless of its label intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. We accordingly hold that the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause, they seized petitioner and transported him to the police station for interrogation.
III
26
There remains the question whether the connection between this unconstitutional police conduct and the incriminating statements and sketches obtained during petitioner's illegal detention was nevertheless sufficiently attenuated to permit the use at trial of the statements and sketches. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
27
The New York courts have consistently held, and petitioner does not contest, that proper Miranda warnings were given and that his statements were "voluntary" for purposes of the Fifth Amendment. But Brown v. Illinois, supra, settled that "[t]he exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth," 422 U.S., at 601, 95 S.Ct., at 2260, and held therefore that "Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation." Ibid.
28
"If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. . . . Arrests made without warrant or without probable cause, for questioning or 'investigation,' would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings." Id., at 602, 95 S.Ct., at 2261.
29
Consequently, although a confession after proper Miranda warnings may be found "voluntary" for purposes of the Fifth Amendment,18 this type of "voluntariness" is merely a "threshold requirement" for Fourth Amendment analysis, 422 U.S., at 604, 95 S.Ct., at 2262. Indeed, if the Fifth Amendment has been violated, the Fourth Amendment issue would not have to be reached.
30
Beyond this threshold requirement, Brown articulated a test designed to vindicate the "distinct policies and interests of the Fourth Amendment." Id., at 602, 95 S.Ct., at 2261. Following Wong Sun, the Court eschewed any per se or "but for" rule, and identified the relevant inquiry as "whether Brown's statements were obtained by exploitation of the illegality of his arrest," 422 U.S., at 600, 95 S.Ct., at 2260; see Wong Sun v. United States, supra, 371 U.S., at 488, 83 S.Ct., at 417. Brown's focus on "the causal connection between the illegality and the confession," 422 U.S., at 603, 95 S.Ct., at 2261, reflected the two policies behind the use of the exclusionary rule to effectuate the Fourth Amendment. When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but also use of the evidence is more likely to compromise the integrity of the courts.
31
Brown identified several factors to be considered "in determining whether the confession is obtained by exploitation of an illegal arrest[:t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct . . . . And the burden of showing admissibility rests, of course, on the prosecution." Id., at 603-604, 95 S.Ct., at 2261-62.19 Examining the case before it, the Court readily concluded that the State had failed to sustain its burden of showing the confession was admissible. In the "less than two hours" that elapsed between the arrest and the confession "there was no intervening event of significance whatsoever." Ibid. Furthermore, the arrest without probable cause had a "quality of purposefulness" in that it was an "expedition for evidence" admittedly undertaken "in the hope that something might turn up." Id., at 605, 95 S.Ct., at 2262.
32
The situation in this case is virtually a replica of the situation in Brown. Petitioner was also admittedly seized without probable cause in the hope that something might turn up, and confessed without any intervening event of significance.20 Nevertheless, three members of the Appellate Division purported to distinguish Brown on the ground that the police did not threaten or abuse petitioner (presumably putting aside his illegal seizure and detention) and that the police conduct was "highly protective of defendant's Fifth and Sixth Amendment rights." 61 A.D.2d, at 303, 402 N.Y.S.2d, at 493. This betrays a lingering confusion between "voluntariness" for purposes of the Fifth Amendment and the "causal connection" test established in Brown. Satisfying the Fifth Amendment is only the "threshold" condition of the Fourth Amendment analysis required by Brown. No intervening events broke the connection between petitioner's illegal detention and his confession. To admit petitioner's confession in such a case would allow "law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the 'procedural safeguards' of the Fifth."21
33
Reversed.
34
Mr. Justice POWELL took no part in the consideration or decision of this case.
35
Mr. Justice WHITE, concurring.
36
The opinion of the Court might be read to indicate that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is an almost unique exception to a hard-and-fast standard of probable cause. As our prior cases hold, however, the key principle of the Fourth Amendment is reasonableness—the balancing of competing interests. E. g., Delaware v. Prouse, 440 U.S. 648, 653-654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 1948, 56 L.Ed.2d 486 (1978); Marshall v. Barlow's, Inc., 436 U.S. 307, 321-322, 98 S.Ct. 1816, 1825, 56 L.Ed.2d 305 (1978); United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); Terry v. Ohio, supra, 392 U.S., at 20-21, 88 S.Ct., at 1879; Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1734-1735, 18 L.Ed.2d 930 (1967). But if courts and law enforcement officials are to have workable rules, see Rakas v. Illinois, 439 U.S. 128, 168, 99 S.Ct. 421, 443, 58 L.Ed.2d 387 (1978) (dissenting opinion), this balancing must in large part be done on a categorical basis—not in an ad hoc, case-bycase fashion by individual police officers. Cf. Mincey v. Arizona, 437 U.S. 385, 394-395, 98 S.Ct. 2408, 2414-2415, 57 L.Ed.2d 290 (1978). On the other hand, the need for rules of general applicability precludes neither the recognition in particular cases of extraordinary private or public interests, cf. Zurcher v. Stanford Daily, 436 U.S. 547, 564-565, 98 S.Ct. 1970, 1981, 56 L.Ed.2d 525 (1978), nor the generic recognition of certain exceptions to the normal rule of probable cause where more flexibility is essential. Cf., e. g., Terry v. Ohio, supra. It is enough, for me, that the police conduct here is similar enough to an arrest that the normal level of probable cause is necessary before the interests of privacy and personal security must give way.
37
Mr. Justice STEVENS, concurring.
38
Although I join the Court's opinion, I add this comment on the significance of two factors that may be considered when determining whether a confession has been obtained by exploitation of an illegal arrest.
39
The temporal relationship between the arrest and the confession may be an ambiguous factor. If there are no relevant intervening circumstances, a prolonged detention may well be a more serious exploitation of an illegal arrest than a short one. Conversely, even an immediate confession may have been motivated by a prearrest event such as a visit with a minister.
40
The flagrancy of the official misconduct is relevant, in my judgment, only insofar as it has a tendency to motivate the defendant. A midnight arrest with drawn guns will be equally frightening whether the police acted recklessly or in good faith. Conversely, a courteous command has the same effect on the arrestee whether the officer thinks he has probable cause or knows that he does not. In either event, if the Fourth Amendment is violated, the admissibility question will turn on the causal relationship between that violation and the defendant's subsequent confession.
41
I recognize that the deterrence rationale for the exclusionary rule is sometimes interpreted quite differently.1 Under that interpretation, exclusion is applied as a substitute for punishment of the offending officer; if he acted recklessly or flagrantly, punishment is appropriate, but if he acted in good faith, it is not.2 But when evidence is excluded at a criminal trial, it is the broad societal interest in effective law enforcement that suffers. The justification for the exclusion of evidence obtained by improper methods is to motivate the law enforcement profession as a whole—not the aberrant individual officer—to adopt and enforce regular procedures that will avoid the future invasion of the citizen's constitutional rights. For that reason, exclusionary rules should embody objective criteria rather than subjective considerations.
42
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
43
If the Court did no more in this case than it announced in the opening sentence of its opinion—"decide . . . the question reserved 10 years ago in Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 291 (1969), namely, 'the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest' "—I would have little difficulty joining its opinion. The decision of this question, however, does not, contrary to the implication in the Court's opening sentence, decide this case. For the Court goes on to conclude that petitioner Dunaway was in fact "seized" within the meaning of the Fourth Amendment, and that the connection between Dunaway's purported detention and the evidence obtained therefrom was not sufficiently attenuated as to dissipate the taint of the alleged unlawful police conduct. Ante, at 207, 216-219. I cannot agree with either conclusion, and accordingly, I dissent.
44
* There is obviously nothing in the Fourth Amendment that prohibits police from calling from their vehicle to a particular individual on the street and asking him to come over and talk with them; nor is there anything in the Fourth Amendment that prevents the police from knocking on the door of a person's house and when the person answers the door, inquiring whether he is willing to answer questions that they wish to put to him. "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Voluntary questioning not involving any "seizure" for Fourth Amendment purposes may take place under any number of varying circumstances. And the occasions will not be few when a particular individual agrees voluntarily to answer questions that the police wish to put to him either on the street, at the station, or in his house, and later regrets his willingness to answer those questions. However, such morning-after regrets do not render involuntary responses that were voluntary at the time they were made. In my view, this is a case where the defendant voluntarily accompanied the police to the station to answer their questions.
45
In Terry v. Ohio, the Court set out the test for determining whether a person has been "seized" for Fourth Amendment purposes. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Ibid. In this case, three police officers were dispatched to petitioner's house to question him about his participation in a robbery. According to the testimony of the police officers, one officer approached a house where petitioner was thought to be located and knocked on the door. When a person answered the door, the officer identified himself and asked the individual his name. App. 97-98. After learning that the person who answered the door was petitioner, the officer asked him if he would accompany the officers to police headquarters for questioning, and petitioner responded that he would. Id., at 89-90; see 61 A.D.2d 299, 301, 402 N.Y.S.2d 490, 491 (1978). Petitioner was not told that he was under arrest or in custody and was not warned not to resist or flee. No weapons were displayed and petitioner was not handcuffed. Each officer testified that petitioner was not touched or held during the trip downtown; his freedom of action was not in any way restrained by the police. App. 78-79, 99. In short, the police behavior in this case was entirely free of "physical force or show of authority."
46
The Court, however, categorically states in text that "[t]here can be little doubt that petitioner was 'seized' in the Fourth Amendment sense when he was taken involuntarily to the police station." Ante, at 207. In an accompanying footnote, the Court states: "Respondent contends that petitioner accompanied the police voluntarily and therefore was not 'seized.' . . . The County Court found otherwise . . . and the Appellate Division treated the case as an involuntary detention justified by reasonable suspicion." Ante, at 207 n. 6. The Court goes on to cite a commentary from the Tentative Draft of the ALI Model Code of Pre-Arraignment Procedure to the effect that a "request to come to [the] police station 'may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen.' " Ibid.
47
The Court's heavy reliance on the conclusions of the Monroe County Court on this issue is misplaced, however. That court clearly did not apply the Terry standard in determining whether there had been a seizure. Instead, that court's conclusions were based solely on the facts that petitioner was in the physical custody of detectives until he reached police headquarters and that "had he attempted to leave the company of the said detectives, they would have physically restrained him (per stipulation of People at conclusion of hearing)." App. 117. But the fact that the officers accompanied petitioner from his house to the station in no way vitiates the State's claim that petitioner acted voluntarily. Similarly, the unexpressed intentions of police officers as to hypothetical situations have little bearing on the question whether the police conduct, objectively viewed, restrained petitioner's liberty by show of force or authority.
48
The Appellate Division's opinion also can be of no assistance to the Court. The Court's opinion characterizes the Appellate Division's treatment of the case "as an involuntary detention justified by reasonable suspicion." Ante, at 207 n. 6. But the Appellate Division did not accept the County Court's conclusion that petitioner did not voluntarily accompany the police to the station. To the contrary, in its recitation of the facts, the Appellate Division recites the officers' testimony that petitioner voluntarily agreed to come downtown to talk with them. 61 A.D.2d, at 301, 302, 402 N.Y.S.2d, at 491, 492. That the Appellate Division found that it was able to resolve the case on the basis of the Court of Appeals' decision in People v. Morales, 42 N.Y.2d 129, 290 N.Y.S.2d 898, 366 N.E.2d 248 (1977), does not mean that the Appellate Division decided that petitioner had been "seized" within the meaning of the Fourth Amendment.
49
Finally, the Court quotes the Model Code for Pre-Arraignment Procedure to support its assertion. Ante, at 207 n. 6. I do not dispute the fact that a police request to come to the station may indeed be an "awesome experience." But I do not think that that fact alone means that in every instance where a person assents to a police request to come to headquarters, there has been a "seizure" within the meaning of the Fourth Amendment. The question turns on whether the officer's conduct is objectively coercive or physically threatening, not on the mere fact that a person might in some measure feel cowed by the fact that a request is made by a police officer. Cf. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 713, 50 L.Ed.2d 714 (1977).1
50
Therefore, although I agree that the police officers in this case did not have that degree of suspicion or probable cause that would have justified them in physically compelling petitioner to accompany them to the police station for questioning, I do not believe that the record demonstrates as a fact that this is what happened. No involuntary detention for questioning was shown to have taken place. The Fourth Amendment, accordingly, does not require suppression of petitioner's statements.
II
51
Assuming, arguendo, that there was a "seizure" in this case, I still cannot agree with the Court that the Fourth Amendment requires suppression of petitioner's statements and sketches. Relying on Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the Court concludes that this evidence must be suppressed primarily, it seems, because no intervening events broke the connection between petitioner's detention and his confession. Ante, at 219. In my view, the connection between petitioner's allegedly, unlawful detention and the incriminating statements and sketches is sufficiently attenuated to permit their use at trial. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
52
In Brown v. Illinois, supra, we identified several factors to be considered in determining whether inculpatory statements were sufficiently a product of free will to be admissible under the Fourth Amendment. The voluntariness of the statements is a threshold requirement. That Miranda warnings are given is "an important factor." 422 U.S., at 603-604, 95 S.Ct., at 2261-2262. Also relevant are "[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct." Ibid. But the Court did not assign equal weight to each of these factors. Given the deterrent purposes of the exclusionary rule, the "purpose and flagrancy" of the police conduct is, in my view, the most important factor. Where police have acted in good faith and not in a flagrant manner, I would require no more than that proper Miranda warnings be given and that the statement be voluntary within the meaning of the Fifth Amendment. Brown v. Illinois, supra, at 612, 95 S.Ct., at 2266 (POWELL, J., concurring in part). "Absent aggravating circumstances, I would consider a statement given at the station house after one has been advised of Miranda rights to be sufficiently removed from the immediate circumstances of the illegal arrest to justify its admission at trial." Ibid.
53
The Court concedes that petitioner received proper Miranda warnings and that his statements were "voluntary" for purposes of the Fifth Amendment. Ante, at 216. And the police acted in good faith. App. 61; see United States v. Peltier, 422 U.S. 531, 536-537, 95 S.Ct. 2313, 2316-2317, 45 L.Ed.2d 1382 (1975). At the time of petitioner's detention, the New York Court of Appeals had held that custodial questioning on less than probable cause for an arrest was permissible under the Fourth Amendment. People v. Morales, 22 N.Y.2d 55, 290 N.Y.S.2d 898, 238 N.E.2d 307 (1968).2 Petitioner atestified that the police never threatened or abused him. App. 35. Petitioner voluntarily gave his first statement to police about an hour after he reached the police station and then gave another statement to police the following day. Contrary to the Court's suggestion, the police conduct in this case was in no manner as flagrant as that of the police in Brown v. Illinois, supra. See 422 U.S., at 605, 95 S.Ct., at 2262; n. 1, supra. Thus, in my view, the record convincingly demonstrates that the statements and sketches given police by petitioner were of sufficient free will as to purge the primary taint of his alleged illegal detention. I would, therefore, affirm the judgment of the Appellate Division of the Supreme Court of New York.
1
See opinion in People v. Dunaway (Monroe County Ct., Mar. 11, 1977), App. 116-117. An informant had reportedly told the other detective that one James Cole had said that he and someone named "Irving" had been involved in the crime. The informant did not know "Irving's" last name, but had identified a picture of petitioner Dunaway from a police file. After hearing this information, Fantigrossi interviewed Cole, who was in jail pending an indictment for burglary. Cole denied any involvement in the crime, but stated that he had been told about it two months earlier by another inmate, Hubert Adams. According to Cole, Adams had mentioned that his younger brother, Ba Ba Adams, had told him that he and a fellow named "Irving," also known as "Axelrod," had been involved in the crime.
2
See 61 A.D.2d 299, 301, 402 N.Y.S.2d 490, 491 (1978). The first statement was made within an hour after Dunaway reached the police station; the following day he made a second, more complete statement.
3
We granted certiorari in Morales and noted that "[t]he ruling below, that the State may detain for custodial questioning on less than probable cause for a traditional arrest, is manifestly important, goes beyond our subsequent decisions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1899, 1912, 20 L.Ed.2d 917 (1968), and is claimed by petitioner to be at odds with Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 679 (1969)." Morales v. New York, 396 U.S. 102, 104-105, 90 S.Ct. 291, 293, 24 L.Ed.2d 299 (1969). Nevertheless, inadequacies in the record led us to remand for further development and to reserve the issue we decide today for a record that "squarely and necessarily presents the issue and fully illuminates the factual context in which the question arises." Id., 396 U.S., at 105, 90 S.Ct., at 293. On remand, the New York courts determined that Morales had gone to the police voluntarily. People v. Morales, 42 N.Y.2d 129, 137-138, 397 N.Y.S.2d 587, 591-592, 366 N.E.2d 248, 252-253 (1977).
4
App. 118; see Brown v. Illinois, 422 U.S., at 602, 605, 95 S.Ct.,
5
61 A.D.2d, at 303-304, 402 N.Y.S.2d, at 493. Two of the five members of the court dissented on this issue. Id., at 304, 402 N.Y.S.2d, at 493 (Denman, J., concurring); id., at 305, 402 N.Y.S.2d, at 494 (Cardamone, J., dissenting).
6
"It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). Respondent contends that petitioner accompanied the police voluntarily and therefore was not "seized." Brief for Respondent 7-9. The County Court found otherwise, App. 117, quoted supra, at 205, and the Appellate Division treated the case as an involuntary detention justified by reasonable suspicion. See 61 A.D.2d, at 302-303, 402 N.Y.S.2d, at 492. See also ALI, Model Code of Pre-arraignment Procedure § 2.01(3) and commentary, p. 91 (Tent.Draft No. 1, 1966) (request to come to police station "may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen").
7
Both the County Court and the Appellate Division found that the police lacked probable cause, and respondent does not question those findings here. See 61 A.D.2d, at 302, 402 N.Y.S.2d, at 492; App. 120, citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
8
See, e. g., Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (hot pursuit); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (felony arrests in public places).
9
"Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed [by the person to be arrested]." Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949), quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed.2d 543 (1925). See generally 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 436-480 (1978).
10
See Gerstein v. Pugh, 420 U.S. 103, 111-112, 95 S.Ct. 854, 861-862 (1975); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).
11
The Court stressed the limits of its holding: the police officer's belief that his safety or that of others is in danger must be objectively reasonable—based on reasonable inferences from known facts—so that it can be tested at the appropriate time by "the more detached, neutral scrutiny of a judge," 392 U.S., at 21, 27, 88 S.Ct., at 1880, 1883, and the extent of the intrusion must be carefully tailored to the rationale justifying it.
12
Terry specifically declined to address "the constitutional propriety of an investigative 'seizure' upon less than probable cause for purposes of 'detention' and/or interrogation." Id., at 19 n. 16, 88 S.Ct., at 1879. Mr. Justice WHITE, in a concurring opinion, made these observations on the matter of interrogation during an investigative stop:
"There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation." Id., at 34, 88 S.Ct., at 1886.
13
"[B]ecause of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion." 422 U.S., at 881, 95 S.Ct., at 2580.
14
The factors that respondent would consider relevant in its balancing test, and the scope of the rule the test would produce, are not completely clear. The Appellate Division quoted two apparently different tests from the Court of Appeals opinion in People v. Morales, 42 N.Y.2d 129, 397 N.Y.S.2d 587, 366 N.E.2d 248 (1977):
" '[L]aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual's Fifth and Sixth Amendment rights' (42 N.Y.2d, at p. 135, 397 N.Y.S.2d, at p. 590, 366 N.E.2d, at p. 251). ' "[A] policeman's right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter" ' 42 N.Y.2d, at p. 137, 397 N.Y.S.2d, at p. 591, 366 N.E.2d, at p. 251, quoting from People v. De Bour, 40 N.Y.2d 210, 219, 386 N.Y.S.2d 375, 382, 352 N.E.2d 562, 569." 61 A.D.2d, at 302, 402 N.Y.S.2d, at 492.
Then, in characterizing the case before it, the Appellate Division suggested yet a third "test":
"[T]his case involves a brief detention for interrogation based upon reasonable suspicion, where there was no formal accusation filed against defendant and where great public interest existed in solving a brutal crime which had remained unsolved for a period of almost five months." Id., at 303, 402 N.Y.S.2d, at 492.
15
See n. 14, supra.
16
While the rule proposed by respondent is not entirely clear, the Appellate Division cited with approval a test that would require an officer to weigh before any custodial interrogation "the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter." See n. 14, supra.
17
The officers drew their guns, informed Brown that he was under arrest, and handcuffed him. But Brown, unlike petitioner, was not a teenager; and the police had a report that he possessed a pistol and had used it on occasion, 422 U.S., at 594. The police in this case would have resorted to similar measures if petitioner had resisted being taken into custody. App. 117.
18
But see Westover v. United States, 384 U.S. 436, 494-497, 86 S.Ct. 1602, 1638-1639, 16 L.Ed.2d 694 (1966) (decided with Miranda v. Arizona).
19
See generally, 3 LaFave, supra n. 9, at 630-638; Comment, 25 Emory L.J. 227, 239-244 (1976); Comment, 13 Houston L.Rev. 753, 763-770 (1976).
20
The cases are even parallel in that both Brown and petitioner made subsequent statements, see n. 2, supra; Brown v. Illinois, 422 U.S., at 595-596, 95 S.Ct., at 2257-2258, which in each case were "clearly the result and the fruit of the first." Id., at 605, and n. 12, 95 S.Ct., at 2262.
21
Comment, 25 Emory L.J. 227, 238 (1976).
1
See, e. g., Mr. Justice REHNQUIST, dissenting, post, at 226.
2
I would agree that the officer's subjective state of mind is relevant when he is being sued for damages, but this case involves the question whether the evidence he has obtained is admissible at trial.
1
Neither Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 679 (1969), nor Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), which the Court treats as points of departure for today's opinion, supports the Court's conclusion that petitioner was "seized" within the meaning of the Fourth Amendment. In Davis, the State made no claim that Davis had voluntarily accompanied the police officers to headquarters. 394 U.S., at 726, 89 S.Ct., at 1397. Similarly, in Brown there could be no reasonable disagreement that the defendant had been "seized" for Fourth Amendment purposes. In Brown, two detectives of the Chicago police force broke into Brown's apartment and searched it. When Brown entered the apartment, he was told that he was under arrest, was held at gunpoint, and was searched. He then was handcuffed and escorted to the squad car that eventually took him to the police station. 422 U.S., at 593, 95 S.Ct., at 2256. No doubt this police activity was the cause of the Court's observation that "[t]he illegality here, moreover, had a quality of purposefulness. . . . The manner in which Brown's arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion." Id., at 605, 95 S.Ct., at 2262. No such circumstances occurred here.
2
This Court granted certiorari in Morales, but, as the Court points out, ante, at 205 n. 3, we ultimately reserved decision on the question of the legality of involuntary investigatory detention on less than probable cause. Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969).
| 01
|
442 U.S. 256
99 S.Ct. 2282
60 L.Ed.2d 870
PERSONNEL ADMINISTRATOR OF MASSACHUSETTS et al., Appellants,v.Helen B. FEENEY.
No. 78-233.
Argued Feb. 26, 1979.
Decided June 5, 1979.
Syllabus
During her 12-year tenure as a state employee, appellee, who is not a veteran, had passed a number of open competitive civil service examinations for better jobs, but because of Massachusetts' veterans' preference statute, she was ranked in each instance below male veterans who had achieved lower test scores than appellee. Under the statute, all veterans who qualify for state civil service positions must be considered for appointment ahead of any qualifying nonveterans. The statutory preference, which is available to "any person, male or female, including a nurse," who was honorably discharged from the United States Armed Forces after at least 90 days of active service, at least one day of which was during "wartime," operates overwhelmingly to the advantage of males. Appellee brought an action in Federal District Court, alleging that the absolute-preference formula established in the Massachusetts statute inevitably operates to exclude women from consideration for the best state civil service jobs and thus discriminates against women in violation of the Equal Protection Clause of the Fourteenth Amendment. A three-judge court declared the statute unconstitutional and enjoined its operation, finding that while the goals of the preference were legitimate and the statute had not been enacted for the purpose of discriminating against women, the exclusionary impact upon women was so severe as to require the State to further its goals through a more limited form of preference. On an earlier appeal, this Court vacated the judgment and remanded the case for further consideration in light of the intervening decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, which held that a neutral law does not violate the Equal Protection Clause solely because it results in a racially disproportionate impact and that, instead, the disproportionate impact must be traced to a purpose to discriminate on the basis of race. Upon remand, the District Court reaffirmed its original judgment, concluding that a veterans' hiring preference is inherently nonneutral because it favors a class from which women have traditionally been excluded, and that the consequences of the Massachusetts absolute-preference formula for the employment opportunities of women were too inevitable to have been "unintended."
Held: Massachusetts, in granting an absolute lifetime preference to veterans, has not discriminated against women in violation of the Equal Protection Clause of the Fourteenth Amendment. Pp. 271-281.
(a) Classifications based upon gender must bear a close and substantial relationship to important governmental objectives. Although public employment is not a constitutional right and the States have wide discretion in framing employee qualifications, any state law overtly or covertly designed to prefer males over females in public employment would require an exceedingly persuasive justification to withstand a constitutional challenge under the Equal Protection Clause. Pp. 271-273.
(b) When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionably adverse, a twofold inquiry is appropriate. The first question is whether the statutory classification is indeed neutral in the sense that it is not gender-based. If the classification itself, covert or overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination. Pp.273-274.
(c) Here, the appellee's concession and the District Court's finding that the Massachusetts statute is not a pretext for gender discrimination are clearly correct. Apart from the facts that the definition of "veterans" in the statute has always been neutral as to gender and that Massachusetts has consistently defined veteran status in a way that has been inclusive of women who have served in the military, this is not a law that can plausibly, or even rationally, be explained only as a gender-based classification. Significant numbers of nonveterans are men, and all nonveterans male as well as female—are placed at a disadvantage. The distinction made by the Massachusetts statute is, as it seems to be, quite simply between veterans and nonveterans, not between men and women. Pp. 274-275
(d) Appellee's contention that this veterans' preference is "inherently nonneutral" or "gender-biased" in the sense that it favors a status reserved under federal military policy primarily to men is wholly at odds with the District Court's central finding that Massachusetts has not offered a preference to veterans for the purpose of discriminating against women; nor can it be reconciled with the assumption made by both the appellee and the District Court that a more limited hiring preference for veterans could be sustained, since the degree of the preference makes no constitutional difference. Pp. 276-278.
(e) While it would be disingenuous to say that the adverse consequences of this legislation for women were unintended, in the sense that they were not volitional or in the sense that they were not foreseeable, nevertheless "discriminatory purpose" implies more than intent as volition or intent as awareness of consequences; it implies that the decision maker selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group. When the totality of legislative actions establishing and extending the Massachusetts veterans' preference are considered, the law remains what it purports to be: a preference for veterans of either sex over nonveterans of either sex, not for men over women. Pp. 278-280.
(f) Although absolute and permanent preferences have always been subject to the objection that they give the veteran more than a square deal, the Fourteenth Amendment "cannot be made a refuge from ill-advised . . . laws." District of Columbia v. Brooke, 214 U.S. 138, 150, 29 S.Ct. 560, 563, 53 L.Ed. 941. The substantial edge granted to veterans by the Massachusetts statute may reflect unwise policy, but appellee has simply failed to demonstrate that the law in any way reflects a purpose to discriminate on the basis of sex. Pp. 280-281.
D.C., 451 F.Supp. 143, reversed and remanded.
Thomas R. Kiley, Boston, Mass., for appellants.
Richard P. Ward, Boston, Mass., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case presents a challenge to the constitutionality of the Massachusetts veterans' preference statute, Mass.Gen.Laws Ann., ch. 31, § 23, on the ground that it discriminates against women in violation of the Equal Protection Clause of the Fourteenth Amendment. Under ch. 31, § 23,1 all veterans who qualify for state civil service positions must be considered for appointment ahead of any qualifying nonveterans. The preference operates overwhelmingly to the advantage of males.
2
The appellee Helen B. Feeney is not a veteran. She brought this action pursuant to 42 U.S.C. § 1983, alleging that the absolute preference formula established in ch. 31, § 23, inevitably operates to exclude women from consideration for the best Massachusetts civil service jobs and thus unconstitutionally denies them the equal protection of the laws.2 The three-judge District Court agreed, one judge dissenting. Anthony v. Massachusetts, 415 F.Supp. 485 (Mass.1976).3
3
The District Court found that the absolute preference afforded by Massachusetts to veterans has a devastating impact upon the employment opportunities of women. Although it found that the goals of the preference were worthy and legitimate and that the legislation had not been enacted for the purpose of discriminating against women, the court reasoned that its exclusionary impact upon women was nonetheless so severe as to require the State to further its goals through a more limited form of preference. Finding that a more modest preference formula would readily accommodate the State's interest in aiding veterans, the court declared ch. 31, § 23, unconstitutional and enjoined its operation.4
4
Upon an appeal taken by the Attorney General of Massachusetts,5 this Court vacated the judgment and remanded the case for further consideration in light of our intervening decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597. Massachusetts v. Feeney, 434 U.S. 884, 98 S.Ct. 252, 54 L.Ed.2d 169. The Davis case held that a neutral law does not violate the Equal Protection Clause solely because it results in a racially disproportionate impact; instead the disproportionate impact must be traced to a purpose to discriminate on the basis of race. 426 U.S., at 238-244, 96 S.Ct., at 2046-2050.
5
Upon remand, the District Court, one judge concurring and one judge again dissenting, concluded that a veterans' hiring preference is inherently nonneutral because it favors a class from which women have traditionally been excluded, and that the consequences of the Massachusetts absolute-preference formula for the employment opportunities of women were too inevitable to have been "unintended." Accordingly, the court reaffirmed its original judgment. Feeney v. Massachusetts, 451 F.Supp. 143. The Attorney General again appealed to this Court pursuant to 28 U.S.C. § 1253, and probable jurisdiction of the appeal was noted. 439 U.S. 891, 99 S.Ct. 247, 58 L.Ed.2d 236.
6
* A.
7
The Federal Government and virtually all of the States grant some sort of hiring preference to veterans.6 The Massachusetts preference, which is loosely termed an "absolute lifetime" preference, is among the most generous.7 It applies to all positions in the State's classified civil service, which constitute approximately 60% of the public jobs in the State. It is available to "any person, male or female, including a nurse," who was honorably discharged from the United States Armed Forces after at least 90 days of active service, at least one day of which was during "wartime."8 Persons who are deemed veterans and who are otherwise qualified for a particular civil service job may exercise the preference at any time and as many times as they wish.9
8
Civil service positions in Massachusetts fall into two general categories, labor and official. For jobs in the official service, with which the proofs in this action were concerned, the preference mechanics are uncomplicated. All applicants for employment must take competitive examinations. Grades are based on a formula that gives weight both to objective test results and to training and experience. Candidates who pass are then ranked in the order of their respective scores on an "eligible list." Chapter 31, § 23, requires, however, that disabled veterans, veterans, and surviving spouses and surviving parents of veterans be ranked—in the order of their respective scores—above all other candidates.10
9
Rank on the eligible list and availability for employment are the sole factors that determine which candidates are considered for appointment to an official civil service position. When a public agency has a vacancy, it requisitions a list of "certified eligibles" from the state personnel division. Under formulas prescribed by civil service rules, a small number of candidates from the top of an appropriate list, three if there is only one vacancy, are certified. The appointing agency is then required to choose from among these candidates.11 Although the veterans' preference thus does not guarantee that a veteran will be appointed, it is obvious that the preference gives to veterans who achieve passing scores a well-nigh absolute advantage.
B
10
The appellee has lived in Dracut, Mass., most of her life. She entered the work force in 1948, and for the next 14 years worked at a variety of jobs in the private sector. She first entered the state civil service system in 1963, having competed successfully for a position as Senior Clerk Stenographer in the Massachusetts Civil Defense Agency. There she worked for four years. In 1967, she was promoted to the position of Federal Funds and Personnel Coordinator in the same agency. The agency, and with it her job, was eliminated in 1975.
11
During her 12-year tenure as a public employee, Ms. Feeney took and passed a number of open competitive civil service examinations. On several she did quite well, receiving in 1971 the second highest score on an examination for a job with the Board of Dental Examiners, and in 1973 the third highest on a test for an Administrative Assistant position with a mental health center. Her high scores, however, did not win her a place on the certified eligible list. Because of the veterans' preference, she was ranked sixth behind five male veterans on the Dental Examiner list. She was not certified, and a lower scoring veteran was eventually appointed. On the 1973 examination, she was placed in a position on the list behind 12 male veterans, 11 of whom had lower scores. Following the other examinations that she took, her name was similarly ranked below those of veterans who had achieved passing grades.
12
Ms. Feeney's interest in securing a better job in state government did not wane. Having been consistently eclipsed by veterans, however, she eventually concluded that further competition for civil service positions of interest to veterans would be futile. In 1975, shortly after her civil defense job was abolished, she commenced this litigation.
C
13
The veterans' hiring preference in Massachusetts, as in other jurisdictions, has traditionally been justified as a measure designed to reward veterans for the sacrifice of military service, to ease the transition from military to civilian life, to encourage patriotic service, and to attract loyal and well-disciplined people to civil service occupations.12 See, e. g., Hutcheson v. Director of Civil Service, 361 Mass. 480, 281 N.E.2d 53 (1972). The Massachusetts law dates back to 1884, when the State, as part of its first civil service legislation, gave a statutory preference to civil service applicants who were Civil War veterans if their qualifications were equal to those of nonveterans. 1884 Mass. Acts, ch. 320, § 14 (sixth). This tie-breaking provision blossomed into a truly absolute preference in 1895, when the State enacted its first general veterans' preference law and exempted veterans from all merit selection requirements. 1895 Mass. Acts, ch. 501, § 2. In response to a challenge brought by a male non-veteran, this statute was declared violative of state constitutional provisions guaranteeing that government should be for the "common good" and prohibiting hereditary titles. Brown v. Russell, 166 Mass. 14, 43 N.E. 1005 (1896).
14
The current veterans' preference law has its origins in an 1896 statute, enacted to meet the state constitutional standards enunciated in Brown v. Russell. That statute limited the absolute preference to veterans who were otherwise qualified.13 A closely divided Supreme Judicial Court, in an advisory opinion issued the same year, concluded that the preference embodied in such a statute would be valid. Opinion of the Justices, 166 Mass. 589, 44 N.E. 625 (1896). In 1919, when the preference was extended to cover the veterans of World War I, the formula was further limited to provide for a priority in eligibility, in contrast to an absolute preference in hiring.14 See Corliss v. Civil Service Comm'rs, 242 Mass. 61, 136 N.E. 356 (1922). In Mayor of Lynn v. Commissioner of Civil Service, 269 Mass. 410, 414, 169 N.E. 502, 503-504 (1929), the Supreme Judicial Court, adhering to the views expressed in its 1896 advisory opinion, sustained this statute against a state constitutional challenge.
15
Since 1919, the preference has been repeatedly amended to cover persons who served in subsequent wars, declared or undeclared. See 1943 Mass. Acts, ch. 194; 1949 Mass. Acts, ch. 642, § 2 (World War II); 1954 Mass. Acts, ch. 627 (Korea); 1968 Mass. Acts, ch. 531, § 1 (Vietnam).15 The current preference formula in ch. 31, § 23, is substantially the same as that settled upon in 1919. This absolute preference—even as modified in 1919 has never been universally popular. Over the years it has been subjected to repeated legal challenges, see Hutcheson v. Director of Civil Service, supra (collecting cases), to criticism by civil service reform groups, see, e. g., Report of the Massachusetts Committee on Public Service on Initiative Bill Relative to Veterans' Preference, S.No. 279 (1926); Report of Massachusetts Special Commission on Civil Service and Public Personnel Administration 37-43 (June 15, 1967), and, in 1926, to a referendum in which it was reaffirmed by a majority of 51.9%. See id., at 38. The present case is apparently the first to challenge the Massachusetts veterans' preference on the simple ground that it discriminates on the basis of sex.16
D
16
The first Massachusetts veterans' preference statute defined the term "veterans" in gender-neutral language. See 1896 Mass. Acts, ch. 517, § 1 ("a person" who served in the United States Army or Navy), and subsequent amendments have followed this pattern, see, e. g., 1919 Mass. Acts, ch. 150, § 1 ("any person who has served . . ."); 1954 Mass. Acts, ch. 627, § 1 ("any person, male or female, including a nurse"). Women who have served in official United States military units during wartime, then, have always been entitled to the benefit of the preference. In addition, Massachusetts, through a 1943 amendment to the definition of "wartime service," extended the preference to women who served in unofficial auxiliary women's units. 1943 Mass. Acts, ch. 194.17
17
When the first general veterans' preference statute was adopted in 1896, there were no women veterans.18 The statute, however, covered only Civil War veterans. Most of them were beyond middle age, and relatively few were actively competing for public employment.19 Thus, the impact of the preference upon the employment opportunities of nonveterans as a group and women in particular was slight.20
18
Notwithstanding the apparent attempts by Massachusetts to include as many military women as possible within the scope of the preference, the statute today benefits an overwhelmingly male class. This is attributable in some measure to the variety of federal statutes, regulations, and policies that have restricted the number of women who could enlist in the United States Armed Forces,21 and largely to the simple fact that women have never been subjected to a military draft. See generally Binkin and Bach 4-21.
19
When this litigation was commenced, then, over 98% of the veterans in Massachusetts were male; only 1.8% were female. And over one-quarter of the Massachusetts population were veterans. During the decade between 1963 and 1973 when the appellee was actively participating in the State's merit selection system, 47,005 new permanent appointments were made in the classified official service. Forty-three percent of those hired were women, and 57% were men. Of the women appointed, 1.8% were veterans, while 54% of the men had veteran status. A large unspecified percentage of the female appointees were serving in lower paying positions for which males traditionally had not applied.22 On each of 50 sample eligible lists that are part of the record in this case, one or more women who would have been certified as eligible for appointment on the basis of test results were displaced by veterans whose test scores were lower.
20
At the outset of this litigation appellants conceded that for "many of the permanent positions for which males and females have competed" the veterans' preference has "resulted in a substantially greater proportion of female eligibles than male eligibles" not being certified for consideration. The impact of the veterans' preference law upon the public employment opportunities of women has thus been severe. This impact lies at the heart of the appellee's federal constitutional claim.
II
21
The sole question for decision on this appeal is whether Massachusetts, in granting an absolute lifetime preference to veterans, has discriminated against women in violation of the Equal Protection Clause of the Fourteenth Amendment.
A.
22
The equal protection guarantee of the Fourteenth Amendment does not take from the States all power of classification. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520. Most laws classify, and many affect certain groups unevenly, even though the law itself treats them no differently from all other members of the class described by the law. When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern. New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587; Jefferson v. Hackney, 406 U.S. 535, 548, 92 S.Ct. 1724, 1732, 32 L.Ed.2d 285. Cf. James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678. The calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. In assessing an equal protection challenge, a court is called upon only to measure the basic validity of the legislative classification. Barrett v. Indiana, 229 U.S. 26, 29-30, 33 S.Ct. 692, 693, 57 L.Ed. 1050; Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533. When some other independent right is not at stake, see, e. g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 and when there is no "reason to infer antipathy," Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171, it is presumed that "even improvident decisions will eventually be rectified by the democratic process . . . ." Ibid.
23
Certain classifications, however, in themselves supply a reason to infer antipathy. Race is the paradigm. A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222. This rule applies as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340; cf. Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. But, as was made clear in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose. Classifications based upon gender, not unlike those based upon race, have traditionally been the touchstone for pervasive and often subtle discrimination. Caban v. Mohammed, 441 U.S. 380, 398, 99 S.Ct. 1760, 1771, 60 L.Ed.2d 297 (STEWART, J., dissenting). This Court's recent cases teach that such classifications must bear a close and substantial relationship to important governmental objectives, Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 and are in many settings unconstitutional. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514; Craig v. Boren, supra; Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270; Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306; Caban v. Mohammed, supra. Although public employment is not a constitutional right, Massachusetts Bd. of Retirement v. Murgia, supra, and the States have wide discretion in framing employee qualifications, see, e. g., New York City Transit Authority v. Beazer, supra, these precedents dictate that any state law overtly or covertly designed to prefer males over females in public employment would require an exceedingly persuasive justification to withstand a constitutional challenge under the Equal Protection Clause of the Fourteenth Amendment.
B
24
The cases of Washington v. Davis, supra, and Arlington Heights v. Metropolitan Housing Dev. Corp., supra, recognize that when a neutral law has a disparate impact upon a group that has historically been the victim of discrimination, an unconstitutional purpose may still be at work. But those cases signaled no departure from the settled rule that the Fourteenth Amendment guarantees equal laws, not equal results. Davis upheld a job-related employment test that white people passed in proportionately greater numbers than Negroes, for there had been no showing that racial discrimination entered into the establishment or formulation of the test. Arlington Heights upheld a zoning board decision that tended to perpetuate racially segregated housing patterns, since, apart from its effect, the board's decision was shown to be nothing more than an application of a constitutionally neutral zoning policy. Those principles apply with equal force to a case involving alleged gender discrimination.
25
When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionably adverse, a twofold inquiry is thus appropriate. The first question is whether the statutory classification is indeed neutral in the sense that it is not gender-based. If the classification itself, covert of overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination. See Arlington Heights v. Metropolitan Housing Dev. Corp., supra. In this second inquiry, impact provides an "important starting point," 429 U.S., at 266, 97 S.Ct., at 564, but purposeful discrimination is "the condition that offends the Constitution." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554.
26
It is against this background of precedent that we consider the merits of the case before us.
III
A.
27
The question whether ch. 31, § 23, establishes a classification that is overtly or covertly based upon gender must first be considered. The appellee has conceded that ch. 31, § 23, is neutral on its face. She has also acknowledged that state hiring preferences for veterans are not per se invalid, for she has limited her challenge to the absolute lifetime preference that Massachusetts provides to veterans. The District Court made two central findings that are relevant here: first, that ch. 31, § 23, serves legitimate and worthy purposes; second, that the absolute preference was not established for the purpose of discriminating against women. The appellee has thus acknowledged and the District Court has thus found that the distinction between veterans and nonveterans drawn by ch. 31, § 23, is not a pretext for gender discrimination. The appellee's concession and the District Court's finding are clearly correct.
28
If the impact of this statute could not be plausibly explained on a neutral ground, impact itself would signal that the real classification made by the law was in fact not neutral. See Washington v. Davis, 426 U.S., at 242, 96 S.Ct., at 2049; Arlington Heights v. Metropolitan Housing Dev. Corp., supra, 429 U.S., at 266, 97 S.Ct., at 564. But there can be but one answer to the question whether this veteran preference excludes significant numbers of women from preferred state jobs because they are women or because they are nonveterans. Apart from the facts that the definition of "veterans" in the statute has always been neutral as to gender and that Massachusetts has consistently defined veteran status in a way that has been inclusive of women who have served in the military, this is not a law that can plausibly be explained only as a gender-based classification. Indeed, it is not a law that can rationally be explained on that ground. Veteran status is not uniquely male. Although few women benefit from the preference the nonveteran class is not substantially all female. To the contrary, significant numbers of nonveterans are men, and all nonveterans—male as well as female are placed at a disadvantage. Too many men are affected by ch. 31, § 23, to permit the inference that the statute is but a pretext for preferring men over women.
29
Moreover, as the District Court implicitly found, the purposes of the statute provide the surest explanation for its impact. Just as there are cases in which impact alone can unmask an invidious classification, cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, there are others, in which notwithstanding impact—the legitimate noninvidious purposes of a law cannot be missed. This is one. The distinction made by ch. 31, § 23, is, as it seems to be, quite simply between veterans and nonveterans, not between men and women.
B
30
The dispositive question, then, is whether the appellee has shown that a gender-based discriminatory purpose has, at least in some measure, shaped the Massachusetts veterans' preference legislation. As did the District Court, she points to two basic factors which in her view distinguish ch. 31, § 23, from the neutral rules at issue in the Washington v. Davis and Arlington Heights cases. The first is the nature of the preference, which is said to be demonstrably gender-biased in the sense that it favors a status reserved under federal military policy primarily to men. The second concerns the impact of the absolute lifetime preference upon the employment opportunities of women, an impact claimed to be too inevitable to have been unintended. The appellee contends that these factors, coupled with the fact that the preference itself has little if any relevance to actual job performance, more than suffice to prove the discriminatory intent required to establish a constitutional violation.
31
* The contention that this veterans' preference is "inherently nonneutral" or "gender-biased" presumes that the State, by favoring veterans, intentionally incorporated into its public employment policies the panoply of sex-based and assertedly discriminatory federal laws that have prevented all but a handful of women from becoming veterans. There are two serious difficulties with this argument. First, it is wholly at odds with the District Court's central finding that Massachusetts has not offered a preference to veterans for the purpose of discriminating against women. Second, it cannot be reconciled with the assumption made by both the appellee and the District Court that a more limiting hiring preference for veterans could be sustained. Taken together, these difficulties are fatal.
32
To the extent that the status of veteran is one that few women have been enabled to achieve, every hiring preference for veterans, however, modest or extreme, is inherently gender-biased. If Massachusetts by offering such a preference can be said intentionally to have incorporated into its state employment policies the historical gender-based federal military personnel practices, the degree of the preference would or should make no constitutional difference. Invidious discrimination does not become less so because the discrimination accomplished is of a lesser magnitude.23 Discriminatory intent is simply not amenable to calibration. It either is a factor that has influenced the legislative choice or it is not. The District Court's conclusion that the absolute veterans' preference was not originally enacted or subsequently reaffirmed for the purpose of giving an advantage to males as such necessarily compels the conclusion that the State is intended nothing more than to prefer "veterans." Given this finding, simple logic suggests that an intent to exclude women from significant public jobs was not at work in this law. To reason that it was, by describing the preference as "inherently nonneutral" or "gender-biased," is merely to restate the fact of impact, not to answer the question of intent.
33
To be sure, this case is unusual in that it involves a law that by design is not neutral. The law overtly prefers veterans as such. As opposed to the written test at issue in Davis, it does not purport to define a job-related characteristic. To the contrary, it confers upon a specifically described group—perceived to be particularly deserving—a competitive headstart. But the District Court found, and the appellee has not disputed, that this legislative choice was legitimate. The basic distinction between veterans and nonveterans, having been found not gender-based, and the goals of the preference having been found worthy, ch. 31 must be analyzed as is any other neutral law that casts a greater burden upon women as a group than upon men as a group. The enlistment policies of the Armed Services may well have discrimination on the basis of sex. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; cf. Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610. But the history of discrimination against women in the military is not on trial in this case.
2
34
The appellee's ultimate argument rests upon the presumption, common to the criminal and civil law, that a person intends the natural and foreseeable consequences of his voluntary actions. Her position was well stated in the concurring opinion in the District Court:
35
"Conceding . . . that the goal here was to benefit the veteran, there is no reason to absolve the legislature from awareness that the means chosen to achieve this goal would freeze women out of all those state jobs actively sought by men. To be sure, the legislature did not wish to harm women. But the cutting-off of women's opportunities was an inevitable concomitant of the chosen scheme—as inevitable as the proposition that if tails is up, heads must be down. Where a law's consequences are that inevitable, can they meaningfully be described as unintended?" 451 F.Supp., at 151.
36
This rhetorical question implies that a negative answer is obvious, but it is not. The decision to grant a preference to veterans was of course "intentional." So, necessarily, did an adverse impact upon nonveterans follow from that decision. And it cannot seriously be argued that the Legislature of Massachusetts could have been unaware that most veterans are men. It would thus be disingenuous to say that the adverse consequences of this legislation for women were unintended, in the sense that they were not volitional or in the sense that they were not foreseeable. "Discriminatory purpose," however, implies more than intent as volition or intent as awareness of consequences. See United Jewish Organizations v. Carey, 430 U.S. 144, 179, 97 S.Ct. 996, 1016, 51 L.Ed.2d 229 (concurring opinion).24 It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.25 Yet, nothing in the record demonstrates that this preference for veterans was originally devised or subsequently re-enacted because it would accomplish the collateral goal of keeping women in a stereotypic and predefined place in the Massachusetts Civil Service.
37
To the contrary, the statutory history shows that the benefit of the preference was consistently offered to "any person" who was a veteran. That benefit has been extended to women under a very broad statutory definition of the term veteran.26 The preference formula itself, which is the focal point of this challenge, was first adopted—so it appears from this record—out of a perceived need to help a small group of older Civil War veterans. It has since been reaffirmed and extended only to cover new veterans.27 When the totality of legislative actions establishing and extending the Massachusetts veterans' preference are considered, see Washington v. Davis, 426 U.S., at 242, 96 S.Ct., at 2049, the law remains what it purports to be: a preference for veterans of either sex over nonveterans of either sex, not for men over women.
IV
38
Veterans' hiring preferences represent an awkward—and, many argue, unfair—exception to the widely shared view that merit and merit alone should prevail in the employment policies of government. After a war, such laws have been enacted virtually without opposition. During peacetime, they inevitable have come to be viewed in many quarters as undemocratic and unwise.28 Absolute and permanent preferences, as the troubled history of this law demonstrates, have always been subject to the objection that they give the veteran more than a square deal. But the Fourteenth Amendment "cannot be made a refuge from ill-advised . . . laws." District of Columbia v. Brooke, 214 U.S. 138, 150, 29 S.Ct. 560, 563, 53 L.Ed. 941. The substantial edge granted to veterans by ch. 31, § 23, may reflect unwise policy. The appellee, however, has simply failed to demonstrate that the law in any way reflects a purpose to discriminate on the basis of sex.
39
The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
40
It is so ordered.
41
Mr. Justice STEVENS, with whom Mr. Justice WHITE joins, concurring.
42
While I concur in the Court's opinion, I confess that I am not at all sure that there is any difference between the two questions posed ante, at 274. If a classification is not overtly based on gender, I am inclined to believe the question whether it is covertly gender based is the same as the question whether its adverse effects reflect invidious gender-based discrimination. However the question is phrased, for me the answer is largely provided by the fact that the number of males disadvantaged by Massachusetts' veterans' preference (1,867,000) is sufficiently large—and sufficiently close to the number of disadvantaged females (2,954,000)—to refute the claim that the rule was intended to benefit males as a class over females as a class.
43
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
44
Although acknowledging that in some circumstances, discriminatory intent may be inferred from the inevitable or foreseeable impact of a statute, ante, at 279 n. 25, the Court concludes that no such intent has been established here. I cannot agree. In my judgment, Massachusetts' choice of an absolute veterans' preference system evinces purposeful gender-based discrimination. And because the statutory scheme bears no substantial relationship to a legitimate governmental objective, it cannot withstand scrutiny under the Equal Protection Clause.
45
* The District Court found that the "prime objective" of the Massachusetts veterans' preference statute, Mass.Gen.Laws Ann., ch. 31, § 23, was to benefit individuals with prior military service. Anthony v. Commonwealth, 415 F.Supp. 485, 497 (Mass.1976). See Feeney v. Massachusetts, 451 F.Supp. 143, 145 (Mass.1978). Under the Court's analysis, this factual determination "necessarily compels the conclusion that the State intended nothing more than to prefer 'veterans.' Given this finding, simple logic suggests than an intent to exclude women from significant public jobs was not at work in this law." Ante, at 277. I find the Court's logic neither simple nor compelling.
46
That a legislature seeks to advantage one group does not, as a matter of logic or of common sense, exclude the possibility that it also intends to disadvantage another. Individuals in general and lawmakers in particular frequently act for a variety of reasons. As this Court recognized in Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977), "[r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern." Absent an omniscience not commonly attributed to the judiciary, it will often be impossible to ascertain the sole or even dominant purpose of a given statute. See McGinnis v. Royster, 410 U.S. 263, 276-277, 93 S.Ct. 1055, 1062-1063, 35 L.Ed.2d 282 (1973); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1214 (1970). Thus, the critical constitutional inquiry is not whether an illicit consideration was the primary or but-for cause of a decision, but rather whether it had an appreciable role in shaping a given legislative enactment. Where there is "proof that a discriminatory purpose has been a motivating factor in the decision, . . . judicial deference is no longer justified." Arlington Heights v. Metropolitan Housing Dev. Corp., supra, 429 U.S., at 265-266, 97 S.Ct., at 563 (emphasis added).
47
Moreover, since reliable evidence of subjective intentions is seldom obtainable, resort to inference based on objective factors is generally unavoidable. See Beer v. United States, 425 U.S. 130, 148-149, n. 4, 96 S.Ct. 1357, 1367, n. 4, 47 L.Ed.2d 629 (1976) (MARSHALL, J., dissenting); cf. Palmer v. Thompson, 403 U.S. 217, 224-225, 91 S.Ct. 1940, 1944-1945, 29 L.Ed.2d 438 (1971); United States v. O'Brien, 391 U.S. 367, 383-384, 88 S.Ct. 1673, 1682-1683, 20 L.Ed.2d 672 (1968). To discern the purposes underlying facially neutral policies, this Court has therefore considered the degree, inevitability, and foreseeability of any disproportionate impact as well as the alternatives reasonably available. See Monroe v. Board of Commissioners, 391 U.S. 450, 459, 88 S.Ct. 1700, 1705, 20 L.Ed.2d 733 (1968); Goss v. Board of Education, 373 U.S. 683, 688-689, 83 S.Ct. 1405, 1408-1409, 10 L.Ed.2d 632 (1963); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Griffin v. Illinois, 351 U.S. 12, 17 n. 11, 76 S.Ct. 585, 590 n. 11, 100 L.Ed. 891 (1956). Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975).
48
In the instant case, the impact of the Massachusetts statute on women is undisputed. Any veteran with a passing grade on the civil service exam must be placed ahead of a nonveteran, regardless of their respective scores. The District Court found that, as a practical matter, this preference supplants test results as the determinant of upper level civil service appointments. 415 F.Supp., at 488-489. Because less than 2% of the women in Massachusetts are veterans, the absolute-preference formula has rendered desirable state civil service employment an almost exclusively male prerogative. 451 F.Supp., at 151 (Campbell, J., concurring).
49
As the District Court recognized, this consequence follows foreseeably, indeed inexorably, from the long history of policies severely limiting women's participation in the military.1 Although neutral in form, the statute is anything but neutral in application. It inescapably reserves a major sector of public employment to "an already established class which, as a matter of historical fact, is 98% male." Ibid. Where the foreseeable impact of a facially neutral policy is so disproportionate, the burden should rest on the State to establish that sex-based considerations played no part in the choice of the particular legislative scheme. Cf. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976); Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972); see generally Brest, Palmer v. Thompson : An Approach to the Problem of Unconstitutional Legislative Motive, 1971 Sup.Ct.Rev. 95, 123.
50
Clearly, that burden was not sustained here. The legislative history of the statute reflects the Commonwealth's patent appreciation of the impact the preference system would have on women, and an equally evident desire to mitigate that impact only with respect to certain traditionally female occupations. Until 1971, the statute and implementing civil service regulations exempted from operation of the preference any job requisitions "especially calling for women." 1954 Mass. Acts, ch. 627, § 5. See also 1896 Mass. Acts, ch. 517, § 6; 1919 Mass. Acts, ch. 150, § 2; 1945 Mass. Acts, ch. 725, § 2(e); 1965 Mass. Acts, ch. 53; ante, at 266 nn. 13, 14. In practice, this exemption, coupled with the absolute preference for veterans, has created a gender-based civil service hierarchy, with women occupying low-grade clerical and secretarial jobs and men holding more responsible and remunerative positions. See 415 F.Supp., at 488; 451 F.Supp., at 148 n. 9.
51
Thus, for over 70 years, the Commonwealth has maintained, as an integral part of its veterans' preference system, an exemption relegating female civil service applicants to occupations traditionally filled by women. Such a statutory scheme both reflects and perpetuates precisely the kind of archaic assumptions about women's roles which we have previously held invalid. See Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Califano v. Goldfarb, 430 U.S. 199, 210-211, 97 S.Ct. 1021, 1028-1029, 51 L.Ed.2d 270 (1977); Stanton v. Stanton, 421 U.S. 7, 14, 95 S.Ct. 1373, 1377, 43 L.Ed.2d 688 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 645, 95 S.Ct. 1225, 1231, 43 L.Ed.2d 514 (1975). Particularly when viewed against the range of less discriminatory alternatives available to assist veterans,2 Massachusetts' choice of a formula that so severely restricts public employment opportunities for women cannot reasonably be thought gender-neutral. Cf. Albemarle Paper Co. v. Moody, supra, 422 U.S., at 425, 95 S.Ct., at 2375. The Court's conclusion to the contrary—that "nothing in the record" evinces a "collateral goal of keeping women in a stereotypic and predefined place in the Massachusetts Civil Service," ante, at 279 —displays a singularly myopic view of the facts established below.3
II
52
To survive challenge under the Equal Protection Clause, statutes reflecting gender-based discrimination must be substantially related to the achievement of important governmental objectives. See Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194-1195, 51 L.Ed.2d 360 (1977); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971). Appellants here advance three interests in support of the absolute-preference system: (1) assisting veterans in their readjustment to civilian life; (2) encouraging military enlistment; and (3) rewarding those who have served their country. Brief for Appellants 24. Although each of those goals is unquestionably legitimate, the "mere recitation of a benign, compensatory purpose" cannot of itself insulate legislative classifications from constitutional scrutiny. Weinberger v. Wiesenfeld, supra, 420 U.S., at 648, 95 S.Ct., at 1233. And in this case, the Commonwealth has failed to establish a sufficient relationship between it objectives and the means chosen to effectuate them.
53
With respect to the first interest, facilitating veterans' transition to civilian status, the statute is plainly overinclusive. Cf. Trimble v. Gordon, 430 U.S. 762, 770-772, 97 S.Ct. 1459, 1465-1466, 52 L.Ed.2d 31 (1977); Jimenez v. Weinberger, 417 U.S. 628, 637, 94 S.Ct. 2496, 2502, 41 L.Ed.2d 363 (1974). By conferring a permanent preference, the legislation allows veterans to invoke their advantage repeatedly, without regard to their date of discharge. As the record demonstrates, a substantial majority of those currently enjoying the benefits of the system are not recently discharged veterans in need of readjustment assistance.4
54
Nor is the Commonwealth's second asserted interest, encouraging military service, a plausible justification for this legislative scheme. In its original and subsequent re-enactments, the statute extended benefits retroactively to veterans who had served during a prior specified period. See ante, at 265-267. If the Commonwealth's "actual purpose" is to induce enlistment, this legislative design is hardly well suited to that end. See Califano v. Webster, supra, 430 U.S., at 317, 97 S.Ct., at 1195; Weinberger v. Wiesenfeld, supra, 420 U.S., at 648, 95 S.Ct., at 1233. For I am unwilling to assume what appellants made no effort to prove, that the possibility of obtaining an ex post facto civil service preference significantly influenced the enlistment decisions of Massachusetts residents. Moreover, even if such influence could be presumed, the statute is still grossly overinclusive in that it bestows benefits on men drafted as well as those who volunteered.
55
Finally, the Commonwealth's third interest, rewarding veterans, does not "adequately justify the salient features" of this preference system. Craig v. Boren, supra, at 202-203, 97 S.Ct., at 459. See Orr v. Orr, supra, 442 U.S., at 281, 99 S.Ct., at 1113. Where a particular statutory scheme visits substantial hardship on a class long subject to discrimination, the legislation cannot be sustained unless " 'carefully tuned to alternative considerations.' " Trimble v. Gordon, supra, 430 U.S., at 772, 97 S.Ct., at 1466. See Caban v. Mohammed, 441 U.S. 380, 392-393, n. 13, 99 S.Ct. 1760, 1768-1769, n. 13, 60 L.Ed.2d 297 (1979); Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). Here, there are a wide variety of less discriminatory means by which Massachusetts could effect its compensatory purposes. For example, a point preference system, such as that maintained by many States and the Federal Government, see n. 2, supra, or an absolute preference for a limited duration, would reward veterans without excluding all qualified women from upper level civil service positions. Apart from public employment, the Commonwealth, can, and does, afford assistance to veterans in various ways, including tax abatements, educational subsidies, and special programs for needy veterans. See Mass.Gen.Laws Ann., ch. 59, § 5, Fifth (West Supp.1979); Mass.Gen.Laws Ann., ch. 69, §§ 7, 7B (West Supp.1979); and Mass.Gen.Laws Ann., chs. 115, 115A (West 1969 and Supp.1978). Unlike these and similar benefits, the costs of which are distributed across the taxpaying public generally, the Massachusetts statute exacts a substantial price from a discrete group of individuals who have long been subject to employment discrimination,5 and who, "because of circumstances totally beyond their control, have [had] little if any chance of becoming members of the preferred class." 415 F.Supp ., at 499. See n. 1,supra.
56
In its present unqualified form, the veterans' preference statute precludes all but a small fraction of Massachusetts women from obtaining any civil service position also of interest to men. See 451 F.Supp., at 151 (Campbell, J., concurring). Given the range of alternatives available, this degree of preference is not constitutionally permissible.
57
I would affirm the judgment of the court below.
1
For the text of ch. 31, § 23, see n. 10, infra. The general Massachusetts Civil Service law, Mass.Gen.Laws Ann., ch. 31, was recodified on January 1, 1979, 1978 Mass. Acts, ch. 393, and the veterans' preference is now found at Mass.Gen.Laws Ann., ch. 31, § 26 (West 1979). Citations in this opinion, unless otherwise indicated, are to the ch. 31 codification in effect when this litigation was commenced.
2
No statutory claim was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Section 712 of the Act, 42 U.S.C. § 2000e-11, provides that "[n]othing contained in this subchapter shall be construed to repeal or modify any Federal, State, territorial or local law creating special rights or preference for veterans." The parties have evidently assumed that this provision precludes a Title VII challenge.
3
The appellee's case had been consolidated with a similar action brought by Carol A. Anthony, a lawyer whose efforts to obtain a civil service Counsel I position had been frustrated by ch. 31, § 23. In 1975, Massachusetts exempted all attorney positions from the preference, 1975 Mass. Acts, ch. 134, and Anthony's claims were accordingly found moot by the District Court. Anthony v. Massachusetts, 415 F.Supp., at 495.
4
The District Court entered a stay pending appeal, but the stay was rendered moot by the passage of an interim statute suspending ch. 31, § 23, pending final judgment and replacing it with an interim provision granting a modified point preference to veterans. 1976 Mass. Acts, ch. 200, now codified at Mass.Gen.Law Ann., ch. 31, § 26 (West 1979).
5
The Attorney General appealed the judgment over the objection of other state officers named as defendants. In response to our certification of the question whether Massachusetts law permits this, see Massachusetts v. Feeney, 429 U.S. 66, 97 S.Ct. 345, 50 L.Ed.2d 224, the Supreme Judicial Court answered in the affirmative. Feeney v. Commonwealth, 373 Mass. 359, 366 N.E.2d 1262 (1977).
6
The first comprehensive federal veterans' statute was enacted in 1944. Veterans' Preference Act of 1944, 58 Stat. 387. The Federal Government has, however, engaged in preferential hiring of veterans, through official policies and various special laws, since the Civil War. See, e. g., Res. of Mar. 3, 1865, No. 27, 13 Stat. 571 (hiring preference for disabled veterans). See generally House Committee on Veterans' Affairs, The Provision of Federal Benefits for Veterans, An Historical Analysis of Major Veterans' Legislation, 1862-1954, 84th Cong., 1st Sess., 258-265 (Comm.Print 1955). For surveys of state veterans' preference laws, many of which also date back to the late 19th century, see State Veterans' Laws, Digests of State Laws Regarding Rights, Benefits, and Privileges of Veterans and Their Dependents, House Committee on Veterans' Affairs, 91st Cong., 1st Sess. (1969); Fleming & Shanor, Veterans Preferences in Public Employment: Unconstitutional Gender Discrimination?, 26 Emory L.J. 13 (1977).
7
The forms of veterans' hiring preferences vary widely. The Federal Government and approximately 41 States grant veterans a point advantage on civil service examinations, usually 10 points for a disabled veteran and 5 for one who is not disabled. See Fleming & Shanor, supra n. 6, at 17, and n. 12 (citing statutes). A few offer only tie-breaking preferences. Id., at n. 14 (citing statutes). A very few States, like Massachusetts, extend absolute hiring or positional preferences to qualified veterans. Id. n. 13. See, e. g., N.J.Stat.Ann. § 11:27-4 (West 1976); S.D.Comp.Laws Ann. § 3-3-1 (1974); Utah Code Ann. § 34-30-11 (1953); Wash.Rev.Code §§ 41.04.010, 73.16.010 (1976).
8
Massachusetts Gen.Laws Ann., ch. 4, § 7, Forty-third (West 1976), which supplies the general definition of the term "veteran," reads in pertinent part: " 'Veteran' shall mean any person, male or female, including a nurse, (a) whose last discharge or release from his wartime service, as defined herein, was under honorable conditions and who (b) served in the army, navy, marine corps, coast guard, or air force of the United States for not less than ninety days active service, at least one day of which was for wartime service . . . ."
Persons awarded the Purple Heart, ch. 4, § 7, cl. 43, or one of a number of specified campaign badges or the Congressional Medal of Honor are also deemed veterans. Mass.Gen.Laws Ann., ch. 31, § 26 (West 1979).
"Wartime service" is defined as service performed by a "Spanish War veteran," a "World War I veteran," a "World War II veteran," a "Korean veteran," a "Vietnam veteran," or a member of the "WAAC." Mass.Gen.Laws Ann., ch. 4, § 7, Forty-third (West 1976). Each of these terms is further defined to specify a period of service. The statutory definitions, taken together, cover the entire period from September 16, 1940, to May 7, 1975. See ibid.
"WAAC" is defined as follows: "any woman who was discharged and so served in any corps or unit of the United States established for the purpose of enabling women to serve with, or as auxiliary to, the armed forces of the United States and such woman shall be deemed to be a veteran." Ibid.
9
The Massachusetts preference law formerly imposed a residency requirement, see 1954 Mass. Acts, ch. 627, § 3 (eligibility conditioned upon Massachusetts domicile prior to induction or five years' residency in State). The distinction was invalidated as violative of the Equal Protection Clause in Stevens v. Campbell, 332 F.Supp. 102, 105 (D.C.Mass.1971). Cf. August v. Bronstein, 369 F.Supp. 190 (S.D.N.Y.1974) (upholding, inter alia, nondurational residency requirement in New York veterans' preference statute), summarily aff'd, 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208.
10
Chapter 31, § 23, provides in full:
"The names of persons who pass examinations for appointment to any position classified under the civil service shall be placed upon the eligible lists in the following order:—
"(1) Disabled veterans . . . in the order of their respective standing; (2) veterans in the order of their respective standing; (3) person described in section twenty-three B [the widow or widowed mother of a veteran killed in action or who died from a service-connected disability incurred in wartime service and who has not remarried] in the order of their respective standing; (4) other applicants in the order of their respective standing. Upon receipt of a requisition, names shall be certified from such lists according to the method of certification prescribed by the civil service rules. A disabled veteran shall be retained in employment in preference to all other persons, including veterans."
A 1977 amendment extended the dependents' preference to "surviving spouses," and "surviving parents." 1977 Mass. Acts, ch. 815.
11
A 1978 amendment requires the appointing authority to file a written statement of reasons if the person whose name was not highest is selected. 1978 Mass. Acts, ch. 393, § 11, currently codified at Mass.Gen.Laws Ann., ch. 31, § 27 (West 1979).
12
Veterans' preference laws have been challenged so often that the rationale in their support has become essentially standardized. See, e. g., Koelfgen v. Jackson, 355 F.Supp. 243 (D.C.Minn.1972), summarily aff'd, 410 U.S. 976, 93 S.Ct. 1502, 36 L.Ed.2d 173; August v. Bronstein, supra; Rios v. Dillman, 499 F.2d 329 (CA5 1974); cf. Mitchell v. Cohen, 333 U.S. 411, 419 n. 12, 68 S.Ct. 518, 522 n. 12, 92 L.Ed. 774. See generally Blumberg, De Facto and De Jure Sex Discrimination Under the Equal Protection Clause: A Reconsideration of the Veterans' Preference in Public Employment, 26 Buffalo L.Rev. 3 (1977). For a collection of early cases, see Annot., Veterans' Preference Laws, 161 A.L.R. 494 (1946).
13
1896 Mass. Acts, ch. 517, § 2. The statute provided that veterans who passed examinations should "be preferred in appointment to all persons not veterans . . . ." A proviso stated: "But nothing herein contained shall be construed to prevent the certification and employment of women."
14
1919 Mass. Acts, ch. 150, § 2. The amended statute provided that "The names of veterans who pass examinations . . . shall be placed upon the . . . eligible lists in the order of their respective standing, above the names of all other applicants," and further provided that "upon receipt of a requisition not especially calling for women, names shall be certified from such lists . . . ." The exemption for "women's requisitions" was retained in substantially this form in subsequent revisions, see, e. g., 1954 Mass. Acts, ch. 627, § 5. It was eliminated in 1971, 1971 Mass. Acts, ch. 219, when the State made all single-sex examinations subject to the prior approval of the Massachusetts Commission Against Discrimination, 1971 Mass. Acts, ch. 221.
15
A provision requiring public agencies to hire disabled veterans certified as eligible was added in 1922. 1922 Mass. Acts, ch. 463. It was invalidated as applied in Hutcheson v. Director of Civil Service, 361 Mass. 480, 281 N.E.2d 53 (1972) (suit by veteran arguing that absolute preference for disabled veterans was arbitrary on facts). It has since been eliminated and replaced with a provision giving disabled veterans an absolute preference in retention. See Mass.Gen.Laws Ann., ch. 31, § 26 (West 1979). See n. 10, supra.
16
For cases presenting similar challenges to the veterans' preference laws of other States, see Ballou v. State Department of Civil Service, 75 N.J. 365, 382 A.2d 1118 (1978) (sustaining New Jersey absolute preference); Feinerman v. Jones, 356 F.Supp. 252 (M.D.Pa.1973) (sustaining Pennsylvania point preference); Branch v. Du Bois, 418 F.Supp. 1128 (N.D.Ill.1976) (sustaining Illinois modified point preference); Wisconsin Nat. Organization for Women v. Wisconsin, 417 F.Supp. 978 (W.D.Wis.1976) (sustaining Wisconsin point preference).
17
The provision, passed shortly after the creation of the Women's Army Auxiliary Corps (WAAC), see n. 21, infra, is currently found at Mass.Gen.Laws Ann., ch. 4, § 7, cl. 43 (West 1976), see n. 8, supra. "Wartime service" is defined as service performed by a member of the "WAAC." A "WAAC" is "any woman who was discharged and so served in any corps or unit of the United States established for the purpose of enabling women to serve with, or as auxiliary to, the armed forces of the United States and such woman shall be deemed to be a veteran." Ibid.
18
Small numbers of women served in combat roles in every war before the 20th century in which the United States was involved, but usually unofficially or disguised as men. See M. Binkin & S. Bach, Women and the Military 5 (1977) (hereinafter Binkin and Bach). Among the better known are Molly Pitcher (Revolutionary War), Deborah Sampson (Revolutionary War), and Lucy Brewer (War of 1812). Passing as one "George Baker," Brewer served for three years as a gunner on the U.S.S. Constitution ("Old Ironsides") and distinguished herself in several major naval battles in the War of 1812. See J. Laffin, Women in Battle 116-122 (1967).
19
By 1887, the average age of Civil War veterans in Massachusetts was already over 50. Massachusetts Civil Service Commissioners, Third Annual Report 22 (1887). The tie-breaking preference which had been established under the 1884 statute had apparently been difficult to enforce, since many appointing officers "prefer younger men." Ibid. The 1896 statute which established the first valid absolute preference, see supra, at 266, again covered only Civil War veterans. 1896 Mass. Acts, ch. 517, § 1.
20
In 1896, for example, 2,804 persons applied for civil service positions: 2,031 were men, of whom only 32 were veterans; 773 were women. Of the 647 persons appointed, 525 were men, of whom only 9 were veterans; 122 were women. Massachusetts Civil Service Commissioners, Thirteenth Annual Report 5, 6 (1896). The average age of the applicants was 38. Ibid.
21
The Army Nurse Corps, created by Congress in 1901, was the first official military unit for women, but its members were not granted full military rank until 1944. See Binkin and Bach 4-21; M. Treadwell, The Women's Army Corps 6 (Dept. of Army 1954) (hereinafter Treadwell). During World War I, a variety of proposals were made to enlist women for work as doctors, telephone operators, and clerks, but all were rejected by the War Department. See ibid. The Navy, however, interpreted its own authority broadly to include a power to enlist women as Yeoman F's and Marine F's. About 13,000 women served in this rank, working primarily at clerical jobs. These women were the first in the United States to be admitted to full military rank and status. See id., at 10.
Official military corps for women were established in response to the massive personnel needs of War II. See generally Binkin and Bach; Treadwell. The Women's Army Auxiliary Corps (WAAC)—the unofficial predecessor of the Women's Army Corps (WAC) was created on May 14, 1942, followed two months later by the WAVES (Women Accepted for Voluntary Emergency Service). See Binkin and Bach 7. Not long after, the United States Marine Corps Women's Reserve and the Coast Guard Women's Reserve (SPAR) were established. See ibid. Some 350,000 women served in the four services; some 800 women also served as Women's Airforce Service Pilots (WASPS). Ibid. Most worked in health care, administration, and communications; they were also employed as airplane mechanics, parachute riggers, gunnery instructors, air traffic controllers, and the like.
The authorizations for the women's units during World War II were temporary. The Women's Armed Services Integration Act of 1948, 62 Stat. 356, established the women's services on a permanent basis. Under the Act, women were given regular military status. However, quotas were placed on the numbers who could enlist, 62 Stat. 357, 360-361 (no more than 2% of total enlisted strength), eligibility requirements were more stringent than those for men, and career opportunities were limited. Binkin and Bach 11-12. During the 1950's and 1960's, enlisted women constituted little more than 1% of the total force. In 1967, the 2% quota was lifted, § 1(9)(E), 81 Stat. 375, 10 U.S.C. § 3209(b), and in the 1970's many restrictive policies concerning women's participation in the military have been eliminated or modified. See generally Binkin and Bach. In 1972, women still constituted less than 2% of the enlisted strength. Id., at 14. By 1975, when this litigation was commenced, the percentage had risen to 4.6%. Ibid.
22
The former exemption for "women's requisitions," see nn. 13, 14, supra, may have operated in the 20th century to protect these types of jobs from the impact of the preference. However, the statutory history indicates that this was not its purpose. The provision dates back to the 1896 veterans' preference law and was retained in the law substantially unchanged until it was eliminated in 1971. See n. 14, supra. Since veterans in 1896 were a small but an exclusively male class, such a provision was apparently included to ensure that the statute would not be construed to outlaw a pre-existing practice of single-sex hiring explicitly authorized under the 1884 Civil Service statute. See Rule XIX.3, Massachusetts Civil Service Law and Rules and Regulations of Commissioners (1884) ("In case the request for any . . . certification, or any law or regulation, shall call for persons of one sex, those of that sex shall be certified; otherwise sex shall be disregarded in certification"). The veterans' preference statute at no point endorsed this practice. Historical materials indicate, however, that the early preference law may have operated to encourage the employment of women in positions from which they previously had been excluded. See Thirteenth Annual Report, supra n. 20, at 5, 6; Third Annual Report, supra n. 19, at 23.
23
This is not to say that the degree of impact is irrelevant to the question of intent. But it is to say that a more modest preference, while it might well lessen impact and, as the State argues, might lessen the effectiveness of the statute in helping veterans, would not be any more or less "neutral" in the constitutional sense.
24
Proof of discriminatory intent must necessarily usually rely on objective factors, several of which were outlined in Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 397. The inquiry is practical. What a legislature or any official entity is "up to" may be plain from the results its actions achieve, or the results they avoid. Often it is made clear from what has been called, in a different context, "the give and take of the situation." Cramer v. United States, 325 U.S. 1, 32-33, 65 S.Ct. 918, 934, 89 L.Ed. 1441 (Jackson, J.).
25
This is not to say that the inevitability or foreseeability of consequences of a neutral rule has no bearing upon the existence of discriminatory intent. Certainly, when the adverse consequences of a law upon an identifiable group are as inevitable as the gender-based consequences of ch. 31, § 23, a strong inference that the adverse effects were desired can reasonably be drawn. But in this inquiry—made as it is under the Constitution—an inference is a working tool, not a synonym for proof. When, as here, the impact is essentially an unavoidable consequence of a legislative policy that has in itself always been deemed to be legitimate, and when, as here, the statutory history and all of the available evidence affirmatively demonstrate the opposite, the inference simply fails to ripen into proof.
26
See nn. 8, 17, supra.
27
The appellee has suggested that the former statutory exception for "women's requisitions," see nn. 13, 14, supra, supplies evidence that Massachusetts, when it established and subsequently reaffirmed the absolute-preference legislation, assumed that women would not or should not compete with men. She has further suggested that the former provision extending the preference to certain female dependents of veterans, see n. 10, supra, demonstrates that ch. 31, § 23, is laced with "old notions" about the proper roles and needs of the sexes. See Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270; Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514. But the first suggestion is totally belied by the statutory history, see supra, at 267-271, and nn. 19, 20, and the second fails to account for the consistent statutory recognition of the contribution of women to this Nation's military efforts.
28
See generally Hearings on Veterans' Preference Oversight before the Subcommittee on Civil Service of the House Post Office and Civil Service Committee, 95th Cong., 1st Sess. (1977); Report of Comptroller General, Conflicting Congressional Policies: Veterans' Preference and Apportionment vs. Equal Employment Opportunity (Sept. 29, 1977).
1
See Anthony v. Massachusetts, 415 F.Supp. 485, 490, 495-499 (Mass.1976); Feeney v. Massachusetts, 451 F.Supp. 143, 145, 148 (Mass.1978). In addition to the 2% quota on women's participation in the Armed Forces, see ante, at 270 n. 21, enlistment and appointment requirements have been more stringent for females than males with respect to age, mental and physical aptitude, parental consent, and educational attainment. M. Binkin & S. Bach, Women and the Military (1977)
(hereinafter Binkin and Bach); Note, The Equal Rights Amendment and the Military, 82 Yale L.J. 1533, 1539 (1973). Until the 1970's, the Armed Forces precluded enlistment and appointment of women, but not men, who were married or had dependent children. See 415 F.Supp. at 490; App. 85; Exs. 98, 99, 103, 104. Sex-based restrictions on advancement and training opportunities also diminished the incentives for qualified women to enlist. See Binkin and Bach 10-17; Beans, Sex Discrimination in the Military, 67 Mil.L.Rev. 19, 59-83 (1975). Cf. Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. 572, 577, 42 L.Ed.2d 610 (1975).
Thus, unlike the employment examination in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), which the Court found to be demonstrably job related, the Massachusetts preference statute incorporates the results of sex-based military policies irrelevant to women's current fitness for civilian public employment. See 415 F.Supp., at 498-499.
2
Only four States afford a preference comparable in scope to that of Massachusetts. See Fleming & Shanor, Veterans' Preferences and Public Employment: Unconstitutional Gender Discrimination?, 26 Emory L.J. 13, 17 n. 13 (1977) (citing statutes). Other States and the Federal Government grant point or tie-breaking preferences that do not foreclose opportunities for women. See id., at 13, and nn. 12, 14; ante, at 261 n. 7; Hearings on Veterans' Preference Oversight before the Subcommittee on Civil Service of the House Committee on Post Office and Civil Service, 95th Cong., 1st Sess., 4 (1977) (statement of Alan Campbell, Chairman, United States Civil Service Commission).
3
Although it is relevant that the preference statute also disadvantages a substantial group of men, see ante, at 281 (STEVENS, J., concurring), it is equally pertinent that 47% of Massachusetts men over 18 are veterans, as compared to 0.8% of Massachusetts women. App. 83. Given this disparity, and the indicia of intent noted supra, at 284-285, the absolute number of men denied preference cannot be dispositive, especially since they have not faced the barriers to achieving veteran status confronted by women. See n. 1, supra.
4
The eligibility lists for the positions Ms. Feeney sought included 95 veterans for whom discharge information was available. Of those 95 males, 64 (67%) were discharged prior to 1960. App. 106, 150-151, 169-170.
5
See Frontiero v. Richardson, 411 U.S. 677, 689 n. 23, 93 S.Ct. 1764, 1772 n. 23, 36 L.Ed.2d 583 (1973); Kahn v. Shevin, 416 U.S. 351, 353-354, 94 S.Ct. 1734, 1736-1737, 40 L.Ed.2d 189 (1974); United States Bureau of the Census, Current Population Reports, No. 107, Money Income and Poverty Status of Families and Persons in the United States: 1976 (Advance Report) (Table 7) (Sept. 1977).
| 12
|
442 U.S. 289
99 S.Ct. 2301
60 L.Ed.2d 895
Bruce BABBITT, Governor of the State of Arizona, et al., Appellants,v.UNITED FARM WORKERS NATIONAL UNION, etc., et al.
No. 78-225.
Argued Feb. 21, 1979.
Decided June 5, 1979.
Syllabus
Appellees (a farmworkers' union, a union agent, farmworkers, and a union supporter) brought suit in Federal District Court in Arizona seeking a declaration of the constitutionality of various provisions of Arizona's farm labor statute, as well as of the entire statute, and an injunction against its enforcement. A three-judge court ruled unconstitutional on various grounds the provisions (1) specifying procedures for the election of employee bargaining representatives; (2) limiting union publicity directed at consumers of agricultural products; (3) imposing a criminal penalty for violations of the statute; (4) excusing an agricultural employer from furnishing a union any materials, information, time, or facilities to enable it to communicate with the employer's employees (access provision); and (5) governing arbitration of labor disputes, construed by the court as mandating compulsory arbitration. Deeming these provisions inseparable from the remainder of the statute, the court went on to declare the whole statute unconstitutional and enjoined its enforcement.
Held:
1. The challenges to the provisions regulating election procedures, consumer publicity, and criminal sanctions present a case or controversy, but the challenges to the access and arbitration provisions are not justiciable. Pp. 297-305.
(a) The fact that appellees have not invoked the election procedures provision in the past or expressed any intention to do so in the future, does not defeat the justiciability of their challenge in view of the nature of their claim that delays attending the statutory election scheme and the technical limitations on who may vote in unit elections severely curtail their freedom of association. To await appellees' participation in an election would not assist the resolution of the threshold question whether the election procedures are subject to scrutiny under the First Amendment at all, and as this question is dispositive of appellees' challenge there is no warrant for postponing consideration of the election procedures claim. Pp. 299-301. (b) With respect to appellees' claim that the consumer publicity provision (which on its face proscribes, as an unfair labor practice, dishonest, untruthful, and deceptive publicity) unconstitutionally penalizes inaccuracies inadvertently uttered, appellees have reason to fear prosecution for violation of the provision, where the State has not disavowed any intention of invoking the criminal penalty provision (which applies in terms to "[a]ny person . . . who violates any provision" of the statute) against unions that commit unfair labor practices. Accordingly, the positions of the parties are sufficiently adverse with respect to the consumer publicity provision to present a case or controversy. For the same reasons, a case or controversy is also presented by appellees' claim that such provision unduly restricts protected speech by limiting publicity to that directed at agricultural products of an employer with whom a union has a primary dispute. Pp. 301-303.
(c) Where it is clear that appellees desire to engage in prohibited consumer publicity campaigns, their claim that the criminal penalty provision is unconstitutionally vague was properly entertained by the District Court and may be raised in this appeal. If the provision were truly vague, appellees should not be expected to pursue their collective activities at their peril. P. 303.
(d) Appellees' challenge to the access provision is not justiciable, where not only is it conjectural to anticipate that access will be denied but, more importantly, appellees' claim that such provision violates the First and Fourteenth Amendments because it deprives the state agency responsible for enforcing the statute of any discretion to compel agricultural employers to furnish the enumerated items, depends upon the attributes of the situs involved. An opinion on the constitutionality of the provision at this time would be patently advisory, and adjudication of the challenge must wait until appellees can assert an interest in seeking access to particular facilities as well as a palpable basis for believing that access will be refused. Pp.303-304.
(e) Similarly, any ruling on the allegedly compulsory arbitration provision would be wholly advisory, where the record discloses that there is no real and concrete dispute as to the application of the provision, appellees themselves acknowledging that employers may elect responses to an arguably unlawful strike other than seeking an injunction and agreeing to arbitrate, and appellees never having contested the constitutionality of the provision. P. 304-305.
2. The District Court properly considered the constitutionality of the election procedures provision even though a prior construction of the provision by the Arizona state courts was lacking, but the court should have abstained from adjudicating the challenges to the consumer publicity and criminal penalty provisions until material unresolved questions of state law were determined by the Arizona courts. Pp. 305-312.
(a) A state-court construction of the election procedures provision would not obviate the need for decision of the constitutional issue or materially alter the question to be decided, as the resolution of the question whether such procedures are affected with a First Amendment interest at all is dispositive of appellees' challenge. P. 306.
(b) The criminal penalty provision might be construed broadly as applying to all provisions of the statute affirmatively proscribing or commanding courses of conduct, or narrowly as applying only to certain provisions susceptible of being "violated," but in either case the provision is reasonably susceptible of constructions that might undercut or modify appellees' vagueness attack or otherwise significantly alter the constitutional questions requiring resolution. Pp.307-308.
(c) In view of the fact that the consumer publicity provision is patently ambiguous and subject to varying interpretations which would substantially affect the constitutional question presented, the District Court erred in entertaining all aspects of appellees' challenge to such provision without the benefit of a construction thereof by the Arizona courts. Pp. 308-312.
3. The District Court erred in invalidating the election procedures provision. Arizona was not constitutionally obliged to provide procedures pursuant to which agricultural employees, through a chosen representative might compel their employers to negotiate, and that it has undertaken to do so in an assertedly niggardly fashion, presents as a general matter no First Amendment problems. Moreover, the statute does not preclude voluntary recognition of a union by an agricultural employer. Pp. 312-314.
449 F.Supp. 449, reversed and remanded.
Rex E. Lee, Washington, D. C., for appellants.
Jerome Cohen, Salinas, Cal., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
In this case we review the decision of a three-judge District Court setting aside as unconstitutional Arizona's farm labor statute. The District Court perceived particular constitutional problems with five provisions of the Act; deeming these provisions inseparable from the remainder of the Act, the court declared the entire Act unconstitutional and enjoined its enforcement. We conclude that the challenges to two of the provisions specifically invalidated did not present a case or controversy within the jurisdiction of a federal court and hence should not have been adjudicated. Although the attacks on two other provisions were justiciable, we conclude that the District Court should have abstained from deciding the federal issues posed until material, unresolved questions of state law were determined by the Arizona courts. Finally, we believe that the District Court properly reached the merits of the fifth provision but erred in invalidating it. Accordingly, we reverse the judgment of the District Court.
2
* In 1972, the Arizona Legislature enacted a comprehensive scheme for the regulation of agricultural employment relations. Arizona Agricultural Employment Relations Act, Ariz.Rev.Stat.Ann. §§ 23-1381 to 23-1395 (Supp.1978). The statute designates procedures governing the election of employee bargaining representatives, establishes various rights of agricultural employers and employees, proscribes a range of employer and union practices, and establishes a civil and criminal enforcement scheme to ensure compliance with the substantive provisions of the Act.
3
Appellees—the United Farm Workers National Union (UFW), an agent of the UFW, named farmworkers, and a supporter of the UFW commenced suit in federal court to secure a declaration of the unconstitutionality of various sections of the Act, as well as of the entire Act, and an injunction against its enforcement.1 A three-judge District Court was convened to entertain the action. On the basis of past instances of enforcement of the Act and in light of the provision for imposition of criminal penalties for "violat[ion of] any provision" of the Act, Ariz.Rev.Stat.Ann. § 23-1392 (Supp.1978), the court determined that appellees' challenges were presently justiciable.2 Reaching the merits of some of the claims, the court ruled unconstitutional five distinct provisions of the Act.3 Specifically, the court disapproved the section specifying election procedures, § 23-1389,4 on the ground that, by failing to account for seasonal employment peaks, it precluded the consummation of elections before most workers dispersed and hence frustrated the associational rights of agricultural employees. The court was also of the view that the Act restricted unduly the class of employees technically eligible to vote for bargaining representatives and hence burdened the workers' freedom of association in this second respect.5
4
The court, moreover, ruled violative of the First and Fourteenth Amendments the provision limiting union publicity directed at consumers of agricultural products, § 23-1385(B)(8),6 because as it construed the section, it proscribed innocent as well as deliberately false representations. The same section was declared infirm for the additional reason that it prohibited any consumer publicity, whether true or false, implicating a product trade name that "may include" agricultural products of an employer other than the employer with whom the protesting labor organization is engaged in a primary dispute.
5
The court also struck down the statute's criminal penalty provision, § 23-1392,7 on vagueness grounds, and held unconstitutional the provision excusing the employer from furnishing to a labor organization any materials, information, time, or facilities to enable the union to communicate with the employer's employees. § 23-1385(C).8 The court thought that the latter provision permitted employers to prevent access by unions to migratory farmworkers residing on their property, in violation of the guarantees of free speech and association.
6
Finally, the court disapproved a provision construed as mandating compulsory arbitration, § 23-1393(B),9 on the ground that it denied employees due process and the right to a jury trial, which the District Court found guaranteed by the Seventh Amendment. The remainder of the Act fell "by reason of its inseparability and inoperability apart from the provisions found to be invalid." 449 F.Supp. 449, 467 (Ariz.1978).
7
Appellants sought review by this Court of the judgment below. Because of substantial doubts regarding the justiciability of appellees' claims, we postponed consideration of our jurisdiction to review the merits. 439 U.S. 891, 99 S.Ct. 247, 58 L.Ed.2d 236 (1978). We now hold that, of the five provisions specifically invalidated by the District Court,10 only the sections pertaining to election of bargaining representatives, consumer publicity, and imposition of criminal penalties are susceptible of judicial resolution at this time. We further conclude that the District Court should have abstained from adjudicating appellees' challenge to the consumer publicity and criminal penalty provisions, although we think the constitutionality of the election procedures was properly considered even lacking a prior construction by the Arizona courts. We are unable to sustain the District Court's declaration, however, that the election procedures are facially unconstitutional.
II
8
We address first the threshold question whether appellees have alleged a case or controversy within the meaning of Art. III of the Constitution or only abstract questions not currently justiciable by a federal court. The difference between an abstract question and a "case or controversy" is one of degree, of course, and is not discernible by any precise test. See Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). The basic inquiry is whether the "conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Railway Mail Assn. v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945); see Evers v. Dwyer, 358 U.S. 202, 203, 79 S.Ct. 178, 179, 3 L.Ed.2d 222 (1958); Maryland Casualty Co. v. Pacific Coal & Oil Co., supra.
9
A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). But "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough." Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923); see Regional Rail Reorganization Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 358, 42 L.Ed.2d 320 (1974); Pierce v. Society of Sisters, 268 U.S. 510, 526, 45 S.Ct. 571, 574, 69 L.Ed. 1070 (1925).
10
When contesting the constitutionality of a criminal statute, "it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974); see Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Evers v. Dwyer, supra, at 204, 79 S.Ct., at 179. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973). But "persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs." Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). When plaintiffs "do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible," they do not allege a dispute susceptible to resolution by a federal court. Younger v. Harris, supra, at 42, 91 S.Ct., at 749.
11
Examining the claims adjudicated by the three-judge court against the foregoing principles, it is our view that the challenges to the provisions regulating election procedures, consumer publicity, and criminal sanctions—but only those challenges—present a case or controversy.11 As already noted, appellees' principal complaint about the statutory election procedures is that they entail inescapable delays and so preclude conducting an election promptly enough to permit participation by many farmworkers engaged in the production of crops having short seasons. Appellees also assail the assertedly austere limitations on who is eligible to participate in elections under the Act. Appellees admittedly have not invoked the Act's election procedures in the past nor have they expressed any intention of doing so in the future. But, as we see it, appellees' reluctance in this respect does not defeat the justiciability of their challenge in view of the nature of their claim.
12
Appellees insist that agricultural workers are constitutionally entitled to select representatives to bargain with their employers over employment conditions. As appellees read the statute, only representatives duly elected under its provisions may compel an employer to bargain with them. But appellees maintain, and have adduced evidence tending to prove, that the statutory election procedures frustrate rather than facilitate democratic selection of bargaining representatives. And the UFW has declined to pursue those procedures, not for lack of interest in representing Arizona farmworkers in negotiations with employers, but due to the procedures' asserted futility. Indeed, the UFW has in the past sought to represent Arizona farmworkers and has asserted in its complaint a desire to organize such workers and to represent them in collective bargaining. Moreover, the UFW has participated in nearly 400 elections in California under procedures thought to be amenable to prompt and fair elections. The lack of a comparable opportunity in Arizona is said to impose a continuing burden on appellees' associational rights.
13
Even though a challenged statute is sure to work the injury alleged, however, adjudication might be postponed until "a better factual record might be available." Regional Rail Reorganization Act Cases, supra, 419 U.S., at 143, 95 S.Ct., at 358. Thus, appellants urge that we should decline to entertain appellees' challenge until they undertake to invoke the Act's election procedures. In that way, the Court might acquire information regarding how the challenged procedures actually operate, in lieu of the predictive evidence that appellees introduced at trial.12 We are persuaded, however, that awaiting appellees' participation in an election would not assist our resolution of the threshold question whether the election procedures are subject to scrutiny under the First Amendment at all. As we regard that question dispositive to appellees' challenge—as elaborated below—we think there is no warrant for postponing adjudication of the election claim.
14
Appellees' twofold attack on the Act's limitation on consumer publicity is also justiciable now. Section 23-1385(B)(8) makes it an unfair labor practice "[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity." And violations of that section may be criminally punishable. § 23-1392. Appellees maintain that the consumer publicity provision unconstitutionally penalizes inaccuracies inadvertently uttered in the course of consumer appeals.
15
The record shows that the UFW has actively engaged in consumer publicity campaigns in the past in Arizona, and appellees have alleged in their complaint an intention to continue to engage in boycott activities in that State. Although appellees do not plan to propagate untruths, they contend—as we have observed—that "erroneous statement is inevitable in free debate." New York Times Co. v. Sullivan, 376 U.S. 254, 271, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). They submit that to avoid criminal prosecution they must curtail their consumer appeals, and thus forgo full exercise of what they insist are their First Amendment rights. It is urged, accordingly, that their challenge to the limitation on consumer publicity plainly poses an actual case or controversy.
16
Appellants maintain that the criminal penalty provision has not yet been applied and may never be applied to commissions of unfair labor practices, including forbidden consumer publicity. But, as we have noted, when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative a plaintiff need not "first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute." Steffel v. Thompson, 415 U.S., at 459, 94 S.Ct., at 1216. The consumer publicity provision on its face proscribes dishonest, untruthful, and deceptive publicity, and the criminal penalty provision applies in terms to "[a]ny person . . . who violates any provision" of the Act. Moreover, the State has not disavowed any intention of invoking the criminal penalty provision against unions that commit unfair labor practices. Appellees are thus not without some reason in fearing prosecution for violation of the ban on specified forms of consumer publicity.13 In our view, the positions of the parties are sufficiently adverse with respect to the consumer publicity provision proscribing misrepresentations to present a case or controversy within the jurisdiction of the District Court.
17
Section 23-1385(B)(8) also is said to limit consumer appeals to those directed at products with whom the labor organization involved has a primary dispute; as appellees construe it, it proscribes "publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name." Appellees challenge that limitation as unduly restricting protected speech. Appellees have in the past engaged in appeals now arguably prohibited by the statute and allege an intention to continue to do the same. For the reasons that appellees' challenge to the first aspect of the consumer publicity provision is justiciable, we think their claim directed against the second aspect may now be entertained as well.
18
We further conclude that the attack on the criminal penalty provision, itself, is also subject to adjudication at this time. Section 23-1392 authorizes imposition of criminal sanctions against "[a]ny person . . . who violates any provision" of the Act. Appellees contend that the penalty provision is unconstitutionally vague in that it does not give notice of what conduct is made criminal. Appellees aver that they have previously engaged, and will in the future engage, in organizing, boycotting, picketing, striking, and collective-bargaining activities regulated by various provisions of the Act.14 They assert that they cannot be sure whether criminal sanctions may be visited upon them for pursuing any such conduct, much of which is allegedly constitutionally protected. As we have noted, it is clear that appellees desire to engage at least in consumer publicity campaigns prohibited by the Act; accordingly, we think their challenge to the precision of the criminal penalty provision, itself, was properly entertained by the District Court and may be raised here on appeal. If the provision were truly vague, appellees should not be expected to pursue their collective activities at their peril.
19
Appellees' challenge to the access provision, however, is not justiciable. The provision, § 23-1385(C), stipulates that "[n]o employer shall be required to furnish or make available to a labor organization . . . information, time, or facilities to enable such . . . labor organization . . . to communicate with employees of the employer, members of the labor organization, its supporters, or adherents." Appellees insist, and the District Court held, that this provision deprives the Arizona Employment Relations Board—charged with responsibility for enforcing the Act of any discretion to compel agricultural employers to furnish materials, information, time, or facilities to labor organizations desirous of communicating with workers located on the employers' property and that the section for this reason violates the First and Fourteenth Amendments to the Constitution.
20
It may be accepted that the UFW will inevitably seek access to employers' property in order to organize or simply to communicate with farmworkers. But it is conjectural to anticipate that access will be denied. More importantly, appellees' claim depends inextricably upon the attributes of the situs involved. They liken farm labor camps to the company town involved in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), in which the First Amendment was held to operate. Yet it is impossible to know whether access will be denied to places fitting appellees' constitutional claim. We can only hypothesize that such an event will come to pass, and it is only on this basis that the constitutional claim could be adjudicated at this time. An opinion now would be patently advisory; the adjudication of appellees' challenge to the access provision must therefore await at least such time as appellees can assert an interest in seeking access to particular facilities as well as a palpable basis for believing that access will be refused.
21
Finally, the constitutionality of the allegedly compulsory arbitration provision was also improperly considered by the District Court. That provision specifies that an employer may seek and obtain an injunction "upon the filing of a verified petition showing that his agricultural employees are unlawfully on strike or are unlawfully conducting a boycott, or are unlawfully threatening to strike or boycott, and that the resulting cessation of work or conduct of a boycott will result in the prevention of production or the loss, spoilage, deterioration, or reduction in grade, quality or marketability of an agricultural commodity or commodities for human consumption in commercial quantities." § 23-1393(B). If an employer invokes a court's jurisdiction to issue a temporary restraining order to enjoin a strike, the employer "must as a condition thereto agree to submit the dispute to binding arbitration as the means of settling the unresolved issues." And if the parties cannot agree on an arbitrator, the court must appoint one.
22
On the record before us, there is an insufficiently real and concrete dispute with respect to application of this provision. Appellees themselves acknowledge that, assuming an arguably unlawful strike will occur, employers may elect to pursue a range of responses other than seeking an injunction and agreeing to arbitrate. Moreover, appellees have never contested the constitutionality of the arbitration clause. They declare that "[t]he three judge court below on its own motion found the binding arbitration provision of § 1393(B) violative of substantive due process and the Seventh Amendment." Brief for Appellees 71 n. 153. Appellees, instead, raised other challenges to the statute's civil enforcement scheme, which we do not consider on this appeal. See n. 10, supra. It is clear, then, that any ruling on the compulsory arbitration provision would be wholly advisory.
III
23
Appellants contend that, even assuming any of appellees' claims are justiciable, the District Court should have abstained from adjudicating those claims until the Arizona courts might authoritatively construe the provisions at issue. We disagree that appellees' challenge to the statutory election procedures should first be submitted to the Arizona courts, but we think that the District Court should have abstained from considering the constitutionality of the criminal penalty provision and the consumer publicity provision pending review by the state courts.
24
As we have observed, " '[a]bstention . . . sanctions . . . escape [from immediate decision] only in narrowly limited "special circumstances." ' " Kusper v. Pontikes, 414 U.S. 51, 54, 94 S.Ct. 303, 306, 38 L.Ed.2d 260 (1973), quoting Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972). "The paradigm of the 'special circumstances' that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question." Kusper v. Pontikes, supra, at 54, 94 S.Ct., at 306; see Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967); Harrison v. NAACP, 360 U.S. 167, 176-177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1959); Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Of course, the abstention doctrine "contemplates that deference to state court adjudication only be made where the issue of state law is uncertain." Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965). But when the state statute at issue is "fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question," id., at 535, 85 S.Ct., at 1182, abstention may be required "in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication," id., at 534, 85 S.Ct., at 1182.
25
We think that a state-court construction of the provision governing election procedures would not obviate the need for decision of the constitutional issue or materially alter the question to be decided. As we shall discuss, our resolution of the question whether the statutory election procedures are affected with a First Amendment interest at all is dispositive of appellees' challenge. And insofar as it bears on that matter, the statute is pointedly clear. Accordingly, we perceive no basis for declining to decide appellees' challenge to the election procedures, notwithstanding the absence of a prior state-court adjudication. We conclude, however, that the District Court should have postponed resolution of appellees' challenge to the criminal penalty provision. That section provides in pertinent part that "[a]ny person . . . who violates any provision of [the Act] is guilty of a . . . misdemeanor." § 23-1392. Appellees maintain that the penalty provision leaves substantial doubt regarding what activities will elicit criminal sanctions. The District Court so concluded, observing that "[c]onsidering the enormous variety of activities covered by the Act, [the penalty section] is clearly a statutory provision so vague that men of common intelligence can only guess at its meaning." 449 F.Supp., at 453. The court elaborated: "There is no way for anyone to guess whether criminal provisions will apply to any particular conduct, in advance, and it is clear that the statute is unconstitutionally vague and does not adequately define prohibited conduct and is, therefore, in violation of the due process clause of the Fourteenth Amendment." Ibid.
26
Appellants, themselves, do not argue that the criminal penalty provision is unambiguous. Indeed, they insist that until the provision is enforced "it is impossible to know what will be considered a 'violatio[n]' of the Act." Brief for Appellants 37. Appellants submit that various unfair labor practices, for example, have not been treated as yet as criminal violations.
27
It is possible, however, that the penalty provision might be construed broadly as applying to all sections of the Act that affirmatively proscribe or command courses of conduct. In terms it reaches "[a]ny person . . . who violates any provision of" the Act. Alternatively, the Arizona courts might conclude that only limited portions of the Act are susceptible of being "violated" and thus narrowly define the reach of the penalty section. In either case, it is evident that the statute is reasonably susceptible of constructions that might undercut or modify appellees' vagueness attack. It may be that, if construed broadly, the penalty provision would operate in conjunction with substantive provisions of the Act to restrict unduly the pursuit of First Amendment activities. But it is at least evident that an authoritative construction of the penalty provision may significantly alter the constitutional questions requiring resolution.15
28
We have noted, of course, that when "extensive adjudications, under the impact of a variety of factual situations, [would be required in order to bring a challenged statute] within the bounds of permissible constitutional certainty," abstention may be inappropriate. Baggett v. Bullitt, 377 U.S. 360, 378, 84 S.Ct. 1316, 1326, 12 L.Ed.2d 377 (1964). But here the Arizona courts may determine in a single proceeding what substantive provisions the penalty provision modifies. In this case, the "uncertain issue of state law [turns] upon a choice between one or several alternative meanings of [the] state statute." Ibid. Accordingly, we think the Arizona courts should be "afforded a reasonable opportunity to pass upon" the section under review. Harrison v. NAACP, supra, 360 U.S., at 176, 79 S.Ct., at 1030.
29
The District Court should have abstained with respect to appellees' challenges to the consumer publicity provision as well. Appellees have argued that Arizona's proscription of misrepresentations by labor organizations in the course of appeals to consumers intolerably inhibits the exercise of their First Amendment right freely to discuss issues concerning the employment of farm laborers and the production of crops. Appellants submit, however, that the statutory ban on untruthful consumer publicity might fairly be construed by an Arizona court as proscribing only misrepresentations made with knowledge of their falsity or in reckless disregard of truth or falsity. As that is the qualification that appellees insist the prohibition of misstatements must include, a construction to that effect would substantially affect the constitutional question presented.
30
It is reasonably arguable that the consumer publicity provision is susceptible of the construction appellants suggest. Section 23-1385(B)(8) makes it unlawful "[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by use of dishonest, untruthful and deceptive publicity." (Emphasis added.) On its face, the statute does not forbid the propagation of untruths without more. Rather, to be condemnable, consumer publicity must be "dishonest" and "deceptive" as well as untruthful. And the Arizona courts may well conclude that a "dishonest" and "untruthful" statement is one made with knowledge of falsity or in reckless disregard of falsity.16
31
To be sure, the consumer publicity provision further provides that "[p]ermissible inducement or encouragement . . . means truthful, honest and nondeceptive publicity . . . ." (Emphasis added.) That phrase may be read to indicate that representations not having all three attributes are prohibited under the Act. But it could be held that the phrase denotes only that "truthful, honest and nondeceptive publicity" is permissible, not that any other publicity is prohibited. When read in conjunction with the prohibitory clause preceding it, the latter phrase thus introduces an ambiguity suitable for state-court resolution. In sum, we think adjudication of appellees' attack on the statutory limitation on untruthful consumer appeals should await an authoritative interpretation of that limitation by the Arizona courts.
32
We further conclude that the District Court should have abstained from adjudicating appellees' additional contention that the consumer publicity provision unconstitutionally precludes publicity not directed at the products of employers with whom the protesting labor organization has a primary dispute. We think it is by no means clear that the statute in fact prohibits publicity solely because it is directed at the products of particular employers. As already discussed, § 23-1385(B)(8) declares it an unfair labor practice to induce or encourage the ultimate consumer of agricultural products to refrain from purchasing products "by the use of dishonest, untruthful and deceptive publicity." The provision then stipulates:
33
"Permissible inducement or encouragement within the meaning of this section means truthful, honest and nondeceptive publicity which identifies the agricultural product produced by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name."
34
The section nowhere proscribes publicity directed at products of employers with whom a labor organization is not engaged in a primary dispute. It indicates only that publicity ranging beyond a primary disagreement is not accorded affirmative statutory protection. The Arizona courts might reasonably determine that the language in issue does no more than that and might thus ameliorate appellees' concerns.17
35
Moreover, § 23-1385(B)(8) might be construed, in light of § 23-1385(C), to prohibit only threatening speech. The latter provision states in pertinent part that "[t]he expressing of any views, argument, opinion or the making of any statement . . . or the dissemination of such views whether in written, printed, graphic, visual or auditory form, if such expression contains no threat of reprisal or force or promise of benefit, shall not constitute or be evidence of an unfair labor practice . . . ." On its face, § 23-1385(C) would appear to qualify § 23-1385(B)(8), as the latter identifies "an unfair labor practice for a labor organization or its agents." Were the consumer publicity provision interpreted to intercept only those expressions embodying a threat of force, the issue of its constitutional validity would assume a character wholly different from the question posed by appellees' construction.
36
Thus, we conclude that the District Court erred in entertaining all aspects of appellees' challenge to the consumer publicity section without the benefit of a construction thereof by the Arizona courts. We are sensitive to appellees' reluctance to repair to the Arizona courts after extensive litigation in the federal arena. We nevertheless hold that in this case the District Court should not have adjudicated substantial constitutional claims with respect to statutory provisions that are patently ambiguous on their face.18
IV
37
The merits of appellees' challenge to the statutory election procedures remain to be considered. Appellees contend, and the District Court concluded, that the delays assertedly attending the statutory election scheme and the technical limitations on who may vote in unit elections severely curtail appellees' freedom of association. This freedom, it is said, entails the liberty not only to join or sustain a labor union and collectively to express a position to an agricultural employer, but also to create or elect an organization entitled to invoke the statutory provision requiring an employer to bargain collectively with the certified representative of his employees. As we see it, however, these general complaints that the statutory election procedures are ineffective are matters for the Arizona Legislature and not the federal courts.
38
Accepting that the Constitution guarantees workers the right individually or collectively to voice their views to their employers, see Givhan v. Western Line Consolidated School Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); cf. Madison School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 173-175, 97 S.Ct. 421, 425-426, 50 L.Ed.2d 376 (1976), the Constitution does not afford such employees the right to compel employers to engage in a dialogue or even to listen. Accordingly, Arizona was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate. That it has undertaken to do so in an assertedly niggardly fashion, then, presents as a general matter no First Amendment problems.19 Moreover, the Act does not preclude voluntary recognition of a labor organization by an agricultural employer. Thus, in the event that an employer desires to bargain with a representative chosen by his employees independently of the statutory election procedures, such bargaining may readily occur. The statutory procedures need be pursued only if farmworkers desire to designate exclusive bargaining representatives and to compel their employer to bargain—rights that are conferred by statute rather than the Federal Constitution. Accordingly, at this time, we are unable to discern any First Amendment difficulty with the Arizona statutory election scheme, whether or not the procedures are as fair or efficacious as appellees would like.
39
Reversed and remanded.
40
Mr. Justice BRENNAN with whom Mr. Justice MARSHALL joins, concurring in part and dissenting in part.
41
I join the opinion of the Court, with the exception that I respectfully dissent from the Court's holding that the District Court should have abstained and postponed resolution of appellees' constitutional challenge to § 23-1392, Ariz.Rev.Stat.Ann. (Supp.1978), until this statutory provision had been construed by the Arizona courts.
42
It must be stressed that "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule. 'The doctrine of abstention . . . is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. . . . ' County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163, 1166 (1959)." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). If a state statute is susceptible of a construction that would avoid or significantly alter a constitutional issue, however, abstention is appropriate to avoid needless friction "between federal pronouncements and state policies." Reetz v. Bozanich, 397 U.S. 82, 87, 90 S.Ct. 788, 790, 25 L.Ed.2d 68 (1970). But, as the Court today correctly points out the state statute at issue must be " 'fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question,' [Harman v. Forssenius, 380 U.S. 528], 535, 85 S.Ct. [1177], at 1182 [, 14 L.Ed.2d 50] [1965]." Ante, at 306. (Emphasis supplied.) This is not the case with § 23-1392.1
Section 23-1392 provides in part:
43
"Any person who . . . violates any provision of this article is guilty of a . . . misdemeanor. The provisions of this section shall not apply to any activities carried on outside the state of Arizona."
44
The District Court concluded concerning this provision that "[i]t would appear on [its] face . . . that it cuts across and covers the entire [Arizona Agricultural Employment Relations] Act, not just a limited area where a criminal penalty might be acceptable. It says in plain English that it applies to 'any person' and further [that] any person 'who violates any provision of this article is guilty of a misdemeanor . . . .' " 449 F.Supp. 449, 453 (Ariz.1978). The District Court found the provision unconstitutionally overbroad.2 Ibid.
45
The District Court is clearly correct that the language of § 23-1392 is "plain and unambiguous."3 Davis v. Mann, 377 U.S. 678, 690, 84 S.Ct. 1441, 1447, 12 L.Ed.2d 609 (1964). The statute is not "obviously susceptible of a limiting construction" that would avoid the federal constitutional question reached by the District Court. Zwickler v. Koota, 389 U.S. 241, 251 n. 14, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967). Of course, as every attorney knows, any statutory provision can be made ambiguous through a sufficiently assiduous application of legal discrimination. The Court resorts to such lawyerly legerdemain when it concludes that abstention is appropriate because Arizona courts might perhaps find "that only limited portions of the [Agricultural Employment Relations] Act are susceptible of being 'violated' and thus narrowly define the reach of the penalty section." Ante, at 307. But the potential ambiguity which the Court thus reads into § 23-1392 does not derive from the plain words of the statute. It is simply the Court's own invention, not an uncertainty that is "fairly" in the statute.4
46
Abstention is particularly inappropriate with respect to § 23-1392 because the provision impacts so directly on precious First Amendment rights. The statute creates sanctions for violations of the provisions of the Agricultural Employment Relations Act that regulate the speech of employees and employers.5 This potential impairment of First Amendment interests strongly counsels against abstention. "The abstention doctrine is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise of a court's equity powers. Ascertainment of whether there exist the 'special circumstances,' Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480, prerequisite to its application must be made on a case-by-case basis. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971; NAACP v. Bennett, 360 U.S. 471, 79 S.Ct. 1192, 3 L.Ed.2d 1375." Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377 (1964). Relevant to the exercise of this equitable discretion, are "the constitutional deprivation alleged and the probable consequences of abstaining." Harman v. Forssenius, 380 U.S. 528, 537, 85 S.Ct. 1177, 1183, 14 L.Ed.2d 50 (1965). "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." ' Lake Carriers' Assn. v. MacMullan, 406 U.S. [498], at 509, 92 S.Ct. [1749], at 1757 [, 32 L.Ed.2d 257], quoting England v. Medical Examiners, 375 U.S. 411, 418, 84 S.Ct. 461, 466, 11 L.Ed.2d 440, 446 (1964)." Bellotti v. Baird, 428 U.S. 132, 150, 96 S.Ct. 2857, 2867, 49 L.Ed.2d 844 (1976). Therefore, when "constitutionally protected rights of speech and association,"Baggett v. Bullitt, supra, at 378, 84 S.Ct., at 1326, are at stake, abstention becomes especially inappropriate. This is because "[i]n such [a] case to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect." Zwickler v. Koota, supra, at 252, 88 S.Ct., at 397.
47
Even assuming that appellees have the financial resources to pursue this case through the Arizona courts, appellees may well avoid speech that is perhaps constitutionally protected throughout the long course of that litigation, because such speech might fall within the cold shadow of criminal liability.6 The potential for this self-censorship is abhorrent to the First Amendment. It should be permitted by a court in equity only for the most important of reasons. It cannot be tolerated on the basis of the slender ambiguity which the Court has managed to create in this statute. Abstention on this issue is therefore manifestly unjustified.7
1
The complaint asserted that the Act as a whole was invalid because it was pre-empted by the federal labor statutes, imposed an impermissible burden on commerce, denied appellees equal protection, and amounted to a bill of attainder. In addition, various constitutional challenges were made to one or more parts of 15 provisions of the Act.
2
The District Court did not analyze section by section why a case or controversy existed with respect to each of the challenged sections. Rather, from instances of private and official enforcement detailed in a stipulation filed by the parties, the court concluded that the case was not "hypothetical, abstract, or generalized." 449 F.Supp. 449, 452 (Ariz.1978). It did, however, focus specifically on § 23-1392. That provision makes it a crime to violate any other provision of the Act; and although the District Court deemed this section severable from the rest of the Act, it relied heavily on its conclusion that it had jurisdiction to adjudicate the validity of this section to justify its considering the constitutionality of other sections of the Act. See 449 F.Supp., at 454. In proceeding to do so, it ruled that evidence would be considered only in connection with § 23-1389 dealing with the election of bargaining representatives and with respect to § 23-1385(C) limiting union access to employer properties, although evidence was introduced at trial relative to other provisions.
3
The court did not explain the basis for selecting from all of the challenges presented the five provisions on which it passed judgment.
4
Section 23-1389 declares that representatives selected by a secret ballot for the purpose of collective bargaining by the majority of agricultural employees in an appropriate bargaining unit shall be the exclusive representatives of all agricultural employees in such unit for the purpose of collective bargaining. And it requires the Agricultural Employment Relations Board to ascertain the unit appropriate for purposes of collective bargaining. The section further provides that the Board shall investigate any petition alleging facts specified in § 23-1389 indicating that a question of representation exists and schedule an appropriate hearing when the Board has reasonable cause to believe that a question of representation does exist. If the hearing establishes that such a question exists, the Board is directed to order an election by secret ballot and to certify the results thereof. Section 23-1389 details the manner in which an election is to be conducted. The section further provides for procedures by which an employer might challenge a petition for an election. Additionally, § 23-1389 stipulates that no election shall be directed or conducted in any unit within which a valid election has been held in the preceding 12 months.
Section 23-1389 also sets down certain eligibility requirements regarding participation in elections conducted thereunder. And it imposes obligations on employers to furnish information to the Board, to be made available to interested unions and employees, concerning bargaining-unit employees qualified to vote. Finally, the section specifies procedures whereby agricultural employees may seek to rescind the representation authority of a union currently representing those employees.
5
The election provision contemplates voting by "agricultural employees," § 23-1389(A), which is defined in § 23-1382(1) so as to exclude workers having only a brief history of employment with an agricultural employer.
6
Section 23-1385(B)(8) makes it an unfair labor practice for a labor organization or its agents:
"To induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity. Permissible inducement or encouragement within the meaning of this section means truthful, honest and nondeceptive publicity which identifies the agricultural product produced by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name."
7
Section 23-1392 provides:
"Any person who knowingly resists, prevents, impedes or interferes with any member of the board or any of its agents or agencies in the performance of duties pursuant to this article, or who violates any provision of this article is guilty of a class 1 misdemeanor. The provisions of this section shall not apply to any activities carried on outside the state of Arizona."
8
Section 23-1385(C) provides in part:
"No employer shall be required to furnish or make available to a labor organization, and no labor organization shall be required to furnish or make available to an employer, materials, information, time, or facilities to enable such employer or labor organization, as the case may be, to communicate with employees of the employer, members of the labor organization, its supporters, or adherents."
9
Section 23-1393(B) provides:
"In the case of a strike or boycott, or threat of a strike or boycott, against an agricultural employer, the court may grant, and upon proper application shall grant as provided in this section, a ten-day restraining order enjoining such a strike or boycott, provided that if an agricultural employer invokes the court's jurisdiction to issue the ten-day restraining order to enjoin a strike as provided by this subsection, said employer must as a condition thereto agree to submit the dispute to binding arbitration as the means of settling the unresolved issues. In the event the parties cannot agree on an arbitrator within two days after the court awards a restraining order, the court shall appoint one to decide the unresolved issues. Any agricultural employer shall be entitled to injunctive relief accorded by Rule 65 of the Arizona Rules of Civil Procedure upon the filing of a verified petition showing that his agricultural employees are unlawfully on strike or are unlawfully conducting a boycott, or are unlawfully threatening to strike or boycott, and that the resulting cessation of work or conduct of a boycott will result in the prevention of production or the loss, spoilage, deterioration, or reduction in grade, quality or marketability of an agricultural commodity or commodities for human consumption in commercial quantities. For the purpose of this subsection, an agricultural commodity or commodities for human consumption with a market value of five thousand dollars or more shall constitute commercial quantities."
10
Appellees challenged numerous provisions before the District Court not expressly considered by that court. After disapproving the five provisions that we address on this appeal, the court concluded that "there is obviously no need to rule on plaintiffs' other contentions including the claimed equal protection violation." 449 F.Supp., at 466. The court then enjoined enforcement of the Act in its entirety, finding the provisions not explicitly invalidated to be inseparable from those actually adjudicated. Id., at 467. We find insufficient reason to consider in this Court in the first instance appellees' challenges to the provisions on which the District Court did not specifically pass judgment.
11
Although appellants have contested the justiciability of appellees' several challenges to the Act's provisions, they have not contended that the standing of any particular appellee is more dubious than the standing of any other. We conclude that at least the UFW has a "sufficient 'personal stake' in a determination of the constitutional validity of [the three aforementioned provisions] to present 'a real and substantial controversy admitting of specific relief through a decree of a conclusive character.' " Buckley v. Valeo, 424 U.S. 1, 12, 96 S.Ct. 612, 631, 46 L.Ed.2d 659 (1976) (footnote omitted), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). See NAACP v. Alabama, 357 U.S. 449, 458, 78 S.Ct. 1163, 1169, 2 L.Ed.2d 1488 (1958). Accordingly, we do not assess the standing of the remaining appellees. See Buckley v. Valeo, supra, at 12, 96 S.Ct., at 631.
12
Though waiting until appellees invoke unsuccessfully the statutory election procedures would remove any doubt about the existence of concrete injury resulting from application of the election provision, little could be done to remedy the injury incurred in the particular election. Challengers to election procedures often have been left without a remedy in regard to the most immediate election because the election is too far underway or actually consummated prior to judgment. See, e. g., Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 998, 31 L.Ed.2d 274 (1972); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Williams v. Rhodes, 393 U.S. 23, 34-35, 89 S.Ct. 5, 12, 21 L.Ed.2d 24 (1968). Justiciability in such cases depends not so much on the fact of past injury but on the prospect of its occurrence in an impending or future election. See, e. g., Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 (1973); Dunn v. Blumstein, supra, at 333 n. 2, 92 S.Ct., at 998. There is value in adjudicating election challenges notwithstanding the lapse of a particular election because "[t]he construction of the statute, an understanding of its operation, and possible constitutional limits on its application, will have the effect of simplifying future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before an election is held." Storer v. Brown, supra, at 737 n. 8, 94 S.Ct., at 1283 (emphasis added).
13
Even independently of criminal sanctions, § 23-1385(B)(8) affirmatively prohibits the variety of consumer publicity specified therein. We think that the prospect of issuance of an administrative cease-and-desist order, § 23-1390(C), or a court-ordered injunction, §§ 23-1390(E), (J), (K), against such prohibited conduct provides substantial additional support for the conclusion that appellees' challenge to the publicity provision is justiciable.
14
E. g., § 23-1385(C) (access to employer's property); § 23-1385(B)(7) (boycotts); § 23-1385(B)(12) (picketing and boycotts); § 23-1385(B)(13) (striking by minorities); §§ 23-1384, 23-1385(D) (collective bargaining).
15
The dissent suggests that § 23-1392 is unambiguous and needs no construction and that abstention is therefore improper. But the District Court invalidated § 23-1392 on vagueness grounds, and the State's position with respect to the issue is such that we are reluctant to conclude that appellees' challenge to § 23-1392 on vagueness grounds is without substance and hence that it contains no ambiguity warranting abstention.
If there were to be no abstention regarding § 23-1392 on the basis that it clearly criminalizes any departure from the command of any provision of the Act, adequate consideration of whether the section is unconstitutionally overbroad would require inquiry into whether some conduct prohibited by the Act is constitutionally shielded from criminal punishment. But that would entail dealing with the validity of provisions about which there may be no case or controversy or with respect to which abstention is the proper course.
16
Although construing the section in this manner would apparently satisfy appellees, we should not be understood as declaring that the section and its criminal sanction would be unconstitutional if they proscribed damaging falsehoods perpetrated unknowingly or without recklessness. We have not adjudicated the role of the First Amendment in suits by private parties against nonmedia defendants, nor have we considered the constitutional implications of causes of action for injurious falsehoods outside the area of defamation and the ground covered by Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), holding that application of state defamation remedies for speech uttered in a labor dispute is dependent upon a showing of knowledge or recklessness, was grounded in federal labor policy, though the case had constitutional overtones.
Furthermore, we express no view on whether the section would be vulnerable to constitutional attack if it declared false consumer publicity, whether innocent or culpable, to be an unfair labor practice and had as its only sanction a prospective cease-and-desist order or court injunction directing that the defendant cease publishing material already determined to be false.
17
Were the section construed to prohibit all appeals directed against the products of agricultural employers whose employees the labor organization did not actually represent, its constitutionality would be substantially in doubt. Even picketing may not be so narrowly circumscribed. AFL v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855 (1941). Additional difficulties would arise were the section interpreted to intercept publicity by means other than picketing. Although we have previously concluded that picketing aimed at discouraging trade across the board with a truly neutral employer may be barred compatibly with the Constitution, Carpenters v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143 (1942); cf. NLRB v. Fruit Packers, 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964), we have noted that, for First Amendment purposes, picketing is qualitatively "different from other modes of communication." Hughes v. Superior Court, 339 U.S. 460, 465, 70 S.Ct. 718, 721, 94 L.Ed. 985 (1950); see Buckley v. Valeo, 424 U.S., at 17, 96 S.Ct., at 633; Teamsters v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957).
18
It has been suggested that the impact of abstention on appellees' pursuit of constitutionally protected activities should be reduced by directing the District Court to protect appellees against enforcement of the state statute pending a definitive resolution of issues of state law by the Arizona courts. See Harrison v. NAACP, 360 U.S. 167, 178-179, 79 S.Ct. 1025, 1031, 3 L.Ed.2d 1152 (1959). But this is a matter that is best addressed by the District Court in the first instance.
19
We do not consider whether the election procedures deny any of the appellees equal protection of the law. Although appellees have challenged other provisions of the Act on equal protection grounds, they have not directed such an argument in this Court against the section governing election procedures. We understand appellees' equal protection challenge to embrace the sections pertaining to access to an employer's property and consumer publicity. But we have determined that appellees' assault on the first provision is premature and that appellees' attack on the second should be held in abeyance pending resort to the Arizona courts.
1
Because of the ambiguous relationship between § 23-1385(C) and § 23-1385(B)(8), I concur in the Court's holding that the District Court should have abstained with respect to § 23-1385(B)(8).
2
The District Court also found § 23-1392 to be "unconstitutionally vague." 449 F.Supp., at 453. The Court stated:
"Considering the enormous variety of activities covered by the Act, and the fact that . . . many of these involve First and Fourteenth Amendment constitutional rights, it is clearly a statutory provision so vague that men of common intelligence can only guess at its meaning.
* * * * *
"There is no way for anyone to guess whether criminal provisions will apply to any particular conduct, in advance, and it is clear that the statute is unconstitutionally vague and does not adequately define prohibited conduct and is, therefore, in violation of the due process clause of the Fourteenth Amendment." Ibid.
3
The fact that § 23-1392 is, for purposes of the abstention doctrine, "plain and unambiguous," does not necessarily mean that it cannot be unconstitutionally vague for purposes of the Due Process Clause of the Fourteenth Amendment. The section may plainly and unambiguously create criminal sanctions for violations of sections of the Act which, considered as criminal prohibitions, would be unconstitutionally vague.
4
Even if the statute were ambiguous in the manner suggested by the Court, abstention would still be inappropriate. It is extraordinarily unlikely that, in a statute as complex and far ranging as this Act, a single adjudication could definitively specify the exact reach of § 23-1392. In such circumstances, we have held that a federal court should not abstain from exercising its jurisdiction. As we stated in Procunier v. Martinez, 416 U.S. 396, 401 n. 5, 94 S.Ct. 1800, 1805, 40 L.Ed.2d 224 (1974):
"Where . . ., as in this case, the statute or regulation is challenged as vague because individuals to whom it plainly applies simply cannot understand what is required of them and do not wish to forswear all activity arguably within the scope of the vague terms, abstention is not required. [Baggett v. Bullitt, 377 U.S. 360,] 378, 84 S.Ct. [1316,] at 1326 [, 12 L.Ed.2d 377] [1964]. In such a case no single adjudication by a state court could eliminate the constitutional difficulty. Rather it would require 'extensive adjudications, under the impact of a variety of factual situations', to bring the challenged statute or regulation 'within the bounds of permissible constitutional certainty.' Ibid. "
5
Section 1385(B)(8), for example, makes it an unfair labor practice
"[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity. Permissible inducement or encouragement within the meaning of this section means truthful, honest and nondeceptive publicity which identifies the agricultural product produced by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name." Section 23-1392 makes violation of § 23-1385(B)(8) a crime.
6
Appellees may be deterred from constitutionally protected speech even if the regulations which the Agricultural Employment Relations Act otherwise imposes on their speech are permissible under the First Amendment. This is because criminal sanctions discourage speech much more powerfully than do administrative regulations. Such sanctions would thus be more apt to cause employers and employees to "steer far wider of the unlawful zone," Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), and more likely to contract the "breathing space" necessary for the survival of "First Amendment freedoms." NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). For this reason, it does not follow that because the First Amendment permits certain speech to be regulated, it must also permit such speech to be punished. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 348-350, 94 S.Ct. 2997, 3011-3012, 41 L.Ed.2d 789 (1974).
7
Because of the First Amendment interests involved, my view is that the District Court on remand should issue an injunction "to protect appellees against enforcement of the state statute pending a definitive resolution of issues of state law by the Arizona courts. See Harrison v. NAACP, 360 U.S. 167, 178-179, 79 S.Ct. 1025, 1031, 3 L.Ed.2d 1152 (1959)." Ante, at 312 n. 18.
| 89
|
442 U.S. 228
99 S.Ct. 2264
60 L.Ed.2d 846
Shirley DAVIS, Petitioner,v.Otto E. PASSMAN.
No. 78-5072.
Argued Feb. 27, 1979.
Decided June 5, 1979.
Syllabus
Petitioner brought suit in Federal District Court alleging that respondent, who was a United States Congressman at the time this case commenced, had discriminated against petitioner on the basis of her sex, in violation of the Fifth Amendment, by terminating her employment as a deputy administrative assistant. Petitioner sought damages in the form of backpay, and jurisdiction was founded on the provisions of 28 U.S.C. § 1331(a) that confer original jurisdiction on federal district courts of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 and arises under the Federal Constitution. The District Court ruled that petitioner had no private right of action, and the Court of Appeals ultimately held that "no right of action may be implied from the Due Process Clause of the fifth amendment."
Held: A cause of action and damages remedy can be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated. Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619; Butz v. Economou, 438 U.S. 478. Pp. 233-249.
(a) The equal protection component of the Fifth Amendment's Due Process Clause confers on petitioner a federal constitutional right to be free from gender discrimination that does not serve important governmental objectives or is not substantially related to the achievement of such objectives. P. 234-235.
(b) The term "cause of action," as used in this case, refers to whether a plaintiff is a member of a class of litigants that may, as a matter of law, appropriately invoke the power of the court. Since petitioner rests her claim directly on the Due Process Clause of the Fifth Amendment, claiming that her rights under that Amendment have been violated and that she has no effective means other than the judiciary to vindicate these rights, she is an appropriate party to invoke the District Court's general federal-question jurisdiction to seek relief, and she therefore has a cause of action under the Fifth Amendment. The Court of Appeals erred in using the criteria of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, to conclude that petitioner lacked such a cause of action, since the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right protected by the Constitution. Pp. 236-244. (c) Petitioner should be able to redress her injury in damages if she is able to prevail on the merits. A damages remedy is appropriate, since it is a "remedial mechanism normally available in the federal courts," Bivens, supra, 403 U.S., at 397, 91 S.Ct., at 2005, since it would be judicially manageable without difficult questions of valuation or causation, and since there are no available alternative forms of relief. Moreover, if respondent's actions are not shielded by the Speech or Debate Clause, the principle that legislators ought generally to be bound by the law as are ordinary persons applies. And there is "no explicit congressional declaration that persons" in petitioner's position injured by unconstitutional federal employment discrimination "may not recover money damages from" those responsible for the injury. Ibid. To afford petitioner a damages remedy does not mean that the federal courts will be deluged with claims, as the Court of Appeals feared. Moreover, current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles. Pp. 2276-2278.
571 F.2d 793, reversed and remanded.
Sana F. Shtasel, Washington, D. C., pro hac vice by special leave of the Court, for petitioner.
A. Richard Gear, Monroe, La., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), held that a "cause of action for damages" arises under the Constitution when Fourth Amendment rights are violated. The issue presented for decision in this case is whether a cause of action and a damages remedy can also be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated. The Court of Appeals for the Fifth Circuit, en banc, concluded that "no civil action for damages" can be thus implied. 571 F.2d 793, 801 (1978). We granted certiorari, 439 U.S. 925, 99 S.Ct. 308, 58 L.Ed.2d 318 (1978), and we now reverse.
2
* At the time this case commenced, respondent Otto E. Passman was a United States Congressman from the Fifth Congressional District of Louisiana.1 On February 1, 1974, Passman hired petitioner Shirley Davis as a deputy administrative assistant.2 Passman subsequently terminated her employment, effective July 31, 1974, writing Davis that, although she was "able, energetic and a very hard worker," he had concluded "that it was essential that the understudy to my Administrative Assistant be a man."3 App. 6.
3
Davis brought suit in the United States District Court for the Western District of Louisiana, alleging that Passman's conduct discriminated against her "on the basis of sex in violation of the United States Constitution and the Fifth Amendment thereto." Id., at 4. Davis sought damages in the form of backpay. Id., at 5.4 Jurisdiction for her suit was founded on 28 U.S.C. § 1331(a), which provides in pertinent part that federal "district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 . . . and arises under the Constitution . . . of the United States. . . ." Passman moved to dismiss Davis' action for failure to state a claim upon which relief can be granted, Fed.Rule Civ.Proc. 12(b)(6), arguing, inter alia, that "the law affords no private right of action" for her claim.5 App. 8. The District Court accepted this argument, ruling that Davis had "no private right of action." Id., at 9.6 A panel of the Court of Appeals for the Fifth Circuit reversed. 544 F.2d 865 (1977). The panel concluded that a cause of action for damages arose directly under the Fifth Amendment; that, taking as true the allegations in Davis' complaint, Passman's conduct violated the Fifth Amendment; and that Passman's conduct was not shielded by the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1.7
4
The Court of Appeals for the Fifth Circuit, sitting en banc, reversed the decision of the panel. The en banc court did not reach the merits, nor did it discuss the application of the Speech or Debate Clause. The court instead held that "no right of action may be implied from the Due Process Clause of the fifth amendment." 571 F.2d, at 801. The court reached this conclusion on the basis of the criteria that had been set out in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), for determining whether a private cause of action should be implied from a federal statute.8 Noting that Congress had failed to create a damages remedy for those in Davis' position, the court also concluded that "the proposed damage remedy is not constitutionally compelled" so that it was not necessary to "countermand the clearly discernible will of Congress" and create such a remedy. 571 F.2d, at 800.
II
5
In Bivens v. Six Unknown Fed. Narcotics Agents, federal agents had allegedly arrested and searched Bivens without probable cause, thereby subjecting him to great humiliation, embarrassment, and mental suffering. Bivens held that the Fourth Amendment guarantee against "unreasonable searches and seizures" was a constitutional right which Bivens could enforce through a private cause of action, and that a damages remedy was an appropriate form of redress. Last Term, Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), reaffirmed this holding, stating that "the decision in Bivens established that a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an award of monetary damages against the responsible federal official." Id., at 504, 98 S.Ct., at 2910.
6
Today we hold that Bivens and Butz require reversal of the holding of the en banc Court of Appeals. Our inquiry proceeds in three stages. We hold first that, pretermitting the question whether respondent's conduct is shielded by the Speech or Debate Clause, petitioner asserts a constitutionally protected right; second, that petitioner has stated a cause of action which asserts this right; and third, that relief in damages constitutes an appropriate form of remedy.
A.
7
The Fifth Amendment provides that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law . . . ." In numerous decisions, this Court "has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws. E. g., Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 1903, 48 L.Ed.2d 495 (1976); Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228, 43 L.Ed.2d 514 (1975); Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954)." Vance v. Bradley, 440 U.S. 93, 95 n. 1, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979). "To withstand scrutiny under the equal protection component of the Fifth Amendment's Due Process Clause, 'classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.' Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976)."9 Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360 (1977). The equal protection component of the Due Process Clause thus confers on petitioner a federal constitutional right10 to be free from gender discrimination which cannot meet these requirements.11 We inquire next whether petitioner has a cause of action to assert this right.
B
8
It is clear that the District Court had jurisdiction under 28 U.S.C. § 1331(a) to consider petitioner's claim. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). It is equally clear, and the en banc Court of Appeals so held, that the Fifth Amendment confers on petitioner a constitutional right to be free from illegal discrimination.12 Yet the Court of Appeals concluded that petitioner could not enforce this right because she lacked a cause of action. The meaning of this missing "cause of action," however, is far from apparent.
9
Almost half a century ago, Mr. Justice Cardozo recognized that a " 'cause of action' may mean one thing for one purpose and something different for another." United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67-68, 53 S.Ct. 278, 280, 77 L.Ed. 619 (1933).13 The phrase apparently became a legal term of art when the New York Code of Procedure of 1848 abolished the distinction between actions at law and suits in equity and simply required a plaintiff to include in his complaint "[a] statement of the facts constituting the cause of action . . . ."14 1848 N.Y.Laws, ch. 379, § 120(2). By the first third of the 20th century, however, the phrase had become so encrusted with doctrinal complexity that the authors of the Federal Rules of Civil Procedure eschewed it altogether, requiring only that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.Rule Civ.Proc. 8(a). See Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (CA2 1943). Nevertheless, courts and commentators have continued to use the phrase "cause of action" in the traditional sense established by the Codes to refer roughly to the alleged invasion of "recognized legal rights" upon which a litigant bases his claim for relief.15 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 693, 69 S.Ct. 1457, 1463, 93 L.Ed. 1628 (1949).
10
This is not the meaning of the "cause of action" which the Court of Appeals below refused to imply from the Fifth Amendment, however, for the court acknowledged that petitioner had alleged an invasion of her constitutional right to be free from illegal discrimination.16 Instead the Court of Appeals appropriated the meaning of the phrase "cause of action" used in the many cases in which this Court has parsed congressional enactments to determine whether the rights and obligations so created could be judicially enforced by a particular "class of litigants." Cannon v. University of Chicago, 441 U.S. 667, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975), for example, held that although "Congress' primary purpose in . . . creating the SIPC was . . . the protection of investors," and although investors were thus "the intended beneficiaries of the [Securities Investor Protection] Act [of 1970]," 84 Stat. 1636, 15 U.S.C. § 78aaa et seq., investors nevertheless had no private cause of action judicially to compel SIPC "to commit its funds or otherwise to act for the protection" of investors. 421 U.S., at 418, 421, 95 S.Ct., at 1737. We held that under the Act only the Securities and Exchange Commission had a cause of action enabling it to invoke judicial authority to require SIPC to perform its statutory obligations. On the other hand, Texas & N. O. R. Co. v. Railway & Steamship Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034 (1930), held that § 2 of the Railway Labor Act of 1926, 44 Stat. 577, 45 U.S.C. § 152, which provides that railroad employees be able to designate representatives "without interference, influence, or coercion," did not confer "merely an abstract right," but was judicially enforceable through a private cause of action.17 281 U.S., at 558, 567-568, 50 S.Ct., at 429, 432-43.
11
In cases such as these, the question is which class of litigants may enforce in court legislatively created rights or obligations. If a litigant is an appropriate party to invoke the power of the courts, it is said that he has a "cause of action" under the statute, and that this cause of action is a necessary element of his "claim." So understood, the question whether a litigant has a "cause of action" is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive. The concept of a "cause of action" is employed specifically to determine who may judicially enforce the statutory rights or obligations.18 It is in this sense that the Court of Appeals concluded that petitioner lacked a cause of action. The Court of Appeals reached this conclusion through the application of the criteria set out in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), for ascertaining whether a private cause of action may be implied from "a statute not expressly providing one." Id., at 78, 95 S.Ct., at 2088.19 The Court of Appeals used these criteria to determine that those in petitioner's position should not be able to enforce the Fifth Amendment's Due Process Clause, and that petitioner therefore had no cause of action under the Amendment. This was error, for the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right that is protected by the Constitution.
12
Statutory rights and obligations are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition, who may enforce them and in what manner. For example, statutory rights and obligations are often embedded in complex regulatory schemes, so that if they are not enforced through private causes of action, they may nevertheless be enforced through alternative mechanisms, such as criminal prosecutions, see Cort v. Ash, supra, or other public causes of actions. See Securities Investor Protection Corp. v. Barbour, supra; National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 457, 94 S.Ct. 690, 692-693, 38 L.Ed.2d 646 (1974). In each case, however, the question is the nature of the legislative intent informing a specific statute, and Cort set out the criteria through which this intent could be discerned.
13
The Constitution, on the other hand, does not "partake of the prolixity of a legal code." McCulloch v. Maryland, 17 U.S. 316, 407, 4 Wheat. 316, 407, 4 L.Ed. 579 (1819). It speaks instead with a majestic simplicity. One of "its important objects," ibid., is the designation of rights. And in "its great outlines," ibid., the judiciary is clearly discernible as the primary means through which these rights may be enforced. As James Madison stated when he presented the Bill of Rights to the Congress:
14
"If [these rights] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." 1 Annals of Cong. 439 (1789).
15
At least in the absence of "a textually demonstrable constitutional commitment of [an] issue to a coordinate political department," Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), we presume that justiciable constitutional rights are to be enforced through the courts. And, unless such rights are to become merely precatory, the class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights. "The very essence of civil liberty," wrote Mr. Chief Justice Marshall in Marbury v. Madison, 5 U.S. 137, 163, 1 Cranch 137, 163, 2 L.Ed. 60 (1803), "certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." Traditionally, therefore, "it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State to do." Bell v. Hood, 327 U.S., at 684, 66 S.Ct., at 777. See Bivens, 403 U.S., at 400, 91 S.Ct., at 2006 (Harlan, J., concurring in judgment). Indeed, this Court has already settled that a cause of action may be implied directly under the equal protection component of the Due Process Clause of the Fifth Amendment in favor of those who seek to enforce this constitutional right.20 The plaintiffs in Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), for example, claimed that they had been refused admission into certain public schools in the District of Columbia solely on account of their race. They rested their suit directly on the Fifth Amendment and on the general federal-question jurisdiction of the district courts, 28 U.S.C. § 1331. The District Court dismissed their complaint for failure "to state a claim upon which relief can be granted." Fed.Rule Civ.Proc. 12(b)(6). This Court reversed. Plaintiffs were clearly the appropriate parties to bring such a suit, and this Court held that equitable relief should be made available. 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955).
16
Like the plaintiffs in Bolling v. Sharpe, supra, petitioner rests her claim directly on the Due Process Clause of the Fifth Amendment. She claims that her rights under the Amendment have been violated, and that she has no effective means other than the judiciary to vindicate these rights.21 We conclude, therefore, that she is an appropriate party to invoke the general federal-question jurisdiction of the District Court to seek relief. She has a cause of action under the Fifth Amendment.22
17
Although petitioner has a cause of action, her complaint might nevertheless be dismissed under Rule 12(b)(6) unless it can be determined that judicial relief is available. We therefore proceed to consider whether a damages remedy is an appropriate form of relief.
C
18
We approach this inquiry on the basis of established law. "[I]t is . . . well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood, 327 U.S., at 684, 66 S.Ct., at 777. Bivens, 403 U.S., at 396, 91 S.Ct., at 2005, holds that in appropriate circumstances a federal district court may provide relief in damages for the violation of constitutional rights if there are "no special factors counselling hesitation in the absence of affirmative action by Congress." See Butz v. Economou, 438 U.S., at 504, 98 S.Ct., at 2909.
19
First, a damages remedy is surely appropriate in this case. "Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." Bivens, supra, at 395, 91 S.Ct., at 2004. Relief in damages would be judicially manageable, for the case presents a focused remedial issue without difficult questions of valuation or causation. See 403 U.S., at 409, 91 S.Ct., at 2011 (Harlan, J., concurring in judgment). Litigation under Title VII of the Civil Rights Act of 1964 has given federal courts great experience evaluating claims for backpay due to illegal sex discrimination. See 42 U.S.C. § 2000e-5(g). Moreover since respondent is no longer a Congressman, see n. 1, supra, equitable relief in the form of reinstatement would be unavailing. And there are available no other alternative forms of judicial relief. For Davis, as for Bivens, "it is damages or nothing."23 Bivens, supra, at 410, 91 S.Ct., at 2011 (Harlan, J., concurring in judgment). Second, although a suit against a Congressman for putatively unconstitutional actions taken in the course of his official conduct does raise special concerns counseling hesitation, we hold that these concerns are coextensive with the protections afforded by the Speech or Debate Clause.24 See n. 11, supra. If respondent's actions are not shielded by the Clause, we apply the principle that "legislators ought . . . generally to be bound by [the law] as are ordinary persons." Gravel v. United States, 408 U.S. 606, 615, 92 S.Ct. 2614, 2622, 33 L.Ed.2d 583 (1972). Cf. Doe v. McMillan, 412 U.S. 306, 320, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912 (1973). As Butz v. Economou stated only last Term:
20
"Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law:
21
" 'No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.' United States v. Lee, 106 U.S. [196,] 220, 1 S.Ct. 240, 260, 27 L.Ed. 171 [(1882)]." 438 U.S., at 506, 98 S.Ct., at 2910-2911.25
22
Third, there is in this case "no explicit congressional declaration that persons" in petitioner's position injured by unconstitutional federal employment discrimination "may not recover money damages from" those responsible for the injury. Bivens, supra, 403 U.S., at 397, 91 S.Ct., at 2005. (Emphasis supplied.) The Court of Appeals apparently interpreted § 717 of Title VII of the Civil Rights Act of 1964, 86 Stat. 111, 42 U.S.C. § 2000e-16, as an explicit congressional prohibition against judicial remedies for those in petitioner's position. When § 717 was added to Title VII to protect federal employees from discrimination, it failed to extend this protection to congressional employees such as petitioner who are not in the competitive service.26 See 42 U.S.C. § 2000e-16(a). There is no evidence, however, that Congress meant § 717 to foreclose alternative remedies available to those not covered by the statute. Such silence is far from "the clearly discernible will of Congress" perceived by the Court of Appeals. 571 F.2d, at 800. Indeed, the Court of Appeals' conclusion that § 717 permits judicial relief to be made available only to those who are protected by the statute is patently inconsistent with Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976), which held that equitable relief was available in a challenge to the constitutionality of Civil Service Commission regulations excluding aliens from federal employment. That § 717 does not prohibit discrimination on the basis of alienage27 did not prevent Hampton from authorizing relief. In a similar manner, we do not now interpret § 717 to foreclose the judicial remedies of those expressly unprotected by the statute. On the contrary, § 717 leaves undisturbed whatever remedies petitioner might otherwise possess. Finally, the Court of Appeals appeared concerned that, if a damages remedy were made available to petitioner, the danger existed "of deluging federal courts with claims . . .." 571 F.2d, at 800. We do not perceive the potential for such a deluge. By virtue of 42 U.S.C. § 1983, a damages remedy is already available to redress injuries such as petitioner's when they occur under color of state law. Moreover, a plaintiff seeking a damages remedy under the Constitution must first demonstrate that his constitutional rights have been violated. We do not hold that every tort by a federal official may be redressed in damages. See Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963). And, of course, were Congress to create equally effective alternative remedies, the need for damages relief might be obviated. See Bivens, 403 U.S., at 397, 91 S.Ct., at 2005. But perhaps the most fundamental answer to the concerns expressed by the Court of Appeals is that provided by Mr. Justice Harlan concurring in Bivens:
23
"Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests. And current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles." Id., at 411, 91 S.Ct., at 2012.
24
We conclude, therefore, that in this case, as in Bivens, if petitioner is able to prevail on the merits, she should be able to redress her injury in damages, a "remedial mechanism normally available in the federal courts." Id., at 397, 91 S.Ct., at 2005.
III
25
We hold today that the Court of Appeals for the Fifth Circuit, en banc, must be reversed because petitioner has a cause of action under the Fifth Amendment, and because her injury may be redressed by a damages remedy. The Court of Appeals did not consider, however, whether respondent's conduct was shielded by the Speech or Debate Clause of the Constitution. Accordingly, we do not reach this question. And, of course, we express no opinion as to the merits of petitioner's complaint.
26
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
27
So ordered.
28
Mr. Chief Justice BURGER, with whom Mr. Justice POWELL and Mr. Justice REHNQUIST join, dissenting.
29
I dissent because, for me, the case presents very grave questions of separation of powers, rather than Speech or Debate Clause issues, although the two have certain common roots. Congress could, of course, make Bivens-type remedies available to its staff employees—and to other congressional employees—but it has not done so. On the contrary, Congress has historically treated its employees differently from the arrangements for other Government employees. Historically, staffs of Members have been considered so intimately a part of the policymaking and political process that they are not subject to being selected, compensated, or tenured as others who serve the Government. The vulnerability of employment on congressional staffs derives not only from the hazards of elections but also from the imperative need for loyalty, confidentiality, and political compatibility—not simply to a political party, an institution, or an administration, but to the individual Member.
30
A Member of Congress has a right to expect that every person on his or her staff will give total loyalty to the political positions of the Member, total confidentiality, and total support. This may, on occasion, lead a Member to employ a particular person on a racial, ethnic, religious, or gender basis thought to be acceptable to the constituency represented, even though in other branches of Government—or in the private sector such selection factors might be prohibited. This might lead a Member to decide that a particular staff position should be filled by a Catholic or a Presbyterian or a Mormon, a Mexican-American or an Oriental-American—or a woman rather than a man. Presidents consciously select—and dispense with—their appointees on this basis and have done so since the beginning of the Republic. The very commission of a Presidential appointee defines the tenure as "during the pleasure of the President."
31
Although Congress altered the ancient "spoils system" as to the Executive Branch and prescribed standards for some limited segments of the Judicial Branch, it has allowed its own Members, Presidents, and Judges to select their personal staffs without limit or restraint—in practical effect their tenure is "during the pleasure" of the Member.
32
At this level of Government—staff assistants of Members long-accepted concepts of separation of powers dictate, for me, that until Congress legislates otherwise as to employment standards for its own staffs, judicial power in this area is circumscribed. The Court today encroaches on that barrier. Cf. Sinking-Fund Cases, 99 U.S. 700, 718, 25 L.Ed. 496 (1879).
33
In relation to his or her constituents, and in the performance of constitutionally defined functions, each Member of the House or Senate occupies a position in the Legislative Branch comparable to that of the President in the Executive Branch; and for the limited purposes of selecting personal staffs, their authority should be uninhibited except as Congress itself, or the Constitution, expressly provides otherwise.
34
The intimation that if Passman were still a Member of the House, a federal court could command him, on pain of contempt, to re-employ Davis represents an astonishing break with concepts of separate, coequal branches; I would categorically reject the notion that courts have any such power in relation to the Congress.
35
Mr. Justice STEWART, with whom Mr. Justice REHNQUIST joins, dissenting.
36
Few questions concerning a plaintiff's complaint are more basic than whether it states a cause of action. The present case, however, involves a preliminary question that may be completely dispositive, for, as the Court recognizes, "the [Speech or Debate] Clause shields federal legislators with absolute immunity 'not only from the consequences of litigation's results but also from the burden of defending themselves.' Dombrowski v. Eastland, 387 U.S. 82, 85 [, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577] (1967)." Ante, at 236 n. 11. See also Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324.
37
If, therefore, the respondent's alleged conduct was within the immunity of the Speech or Debate Clause, that is the end of this case, regardless of the abstract existence of a cause of action or a damages remedy. Accordingly, it seems clear to me that the first question to be addressed in this litigation is the Speech or Debate Clause claim—a claim that is far from frivolous.
38
I would vacate the judgment and remand the case to the Court of Appeals with directions to decide the Speech or Debate Clause issue.*
39
Mr. Justice POWELL, with whom The Chief Justice and Mr. Justice REHNQUIST join, dissenting.
40
Although I join the opinion of The Chief Justice, I write separately to emphasize that no prior decision of this Court justifies today's intrusion upon the legitimate powers of Members of Congress.
41
The Court's analysis starts with the general proposition that "the judiciary is clearly discernible as the primary means through which [constitutional] rights may be enforced," ante, at 241. It leaps from this generalization, unexceptionable itself, to the conclusion that individuals who have suffered an injury to a constitutionally protected interest, and who lack an "effective" alternative, "must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights." Ante, at 242 (emphasis supplied). Apart from the dubious logic of this reasoning, I know of no precedent of this Court that supports such an absolute statement of the federal judiciary's obligation to entertain private suits that Congress has not authorized. On the contrary, I have thought it clear that federal courts must exercise a principled discretion when called upon to infer a private cause of action directly from the language of the Constitution. In the present case, for reasons well summarized by The Chief Justice, principles of comity and separation of powers should require a federal court to stay its hand.
42
To be sure, it has been clear—at least since Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)—that in appropriate circumstances private causes of action may be inferred from provisions of the Constitution.1 But the exercise of this responsibility involves discretion, and a weighing of relevant concerns. As Mr. Justice Harlan observed in addressing this very point, a court should "take into account [a range of policy considerations] at least as broad as the range of those a legislature would consider with respect to an express statutory authorization of a traditional remedy." Id., at 407, 91 S.Ct., at 2010.
43
Among those policies that a court certainly should consider in deciding whether to imply a constitutional right of action is that of comity toward an equal and coordinate branch of government.2 As Mr. Chief Justice Waite observed over a century ago: "One branch of government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." Sinking-Fund Cases, 99 U.S. 700, 718, 25 L.Ed. 496 (1879). Even where the authority of one branch over a matter is not exclusive, so that a federal court properly may accept jurisdiction over the dispute, we have recognized that the principle of separation of powers continues to have force as a matter of policy. For example, in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), we held on the one hand that the question whether the President had a claim of privilege as to conversations with his advisers was an issue to be resolved by the judiciary, and on the other hand that separation-of-powers considerations required the recognition of a qualified privilege.
44
Whether or not the employment decisions of a Member of Congress falls within the scope of the Speech or Debate Clause of the Constitution, a question the Court does not reach today,3 it is clear that these decisions are bound up with the conduct of his duties. As The Chief Justice observes, ante, at 249, a Congressman necessarily relies heavily on his personal staff in discharging the duties of his office. Because of the nature of his office, he must rely to an extraordinary extent on the loyalty and compatibility of everyone who works for him. Cf. Elrod v. Burns, 427 U.S. 347, 377-388, 96 S.Ct. 2673, 2691-2696, 49 L.Ed.2d 547 (1976) (Powell, J., dissenting). A Congressman simply cannot perform his constitutional duties effectively, or serve his constituents properly, unless he is supported by a staff in which he has total confidence.
45
The foregoing would seem self-evident even if Congress had not indicated an intention to reserve to its Members the right to select, employ, promote, and discharge staff personnel without judicial interference. But Congress unmistakably has made clear its view on this subject. It took pains to exempt itself from the coverage of Title VII. Unless the Court is abandoning or modifying sub silentio our holding in Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), that Title VII, as amended, "provides the exclusive judicial remedy for claims of discrimination in federal employment," id., at 835, 96 S.Ct., at 1969, the exemption from this statute for congressional employees should bar all judicial relief.
46
In sum, the decision of the Court today is not an exercise of principled discretion. It avoids our obligation to take into account the range of policy and constitutional considerations that we would expect a legislature to ponder in determining whether a particular remedy should be enacted. It fails to weigh the legitimate interests of Members of Congress. Indeed, the decision simply ignores the constitutional doctrine of separation of powers. In my view, the serious intrusion upon the authority of Members of Congress to choose and control their own personal staffs cannot be justified.4
47
I would affirm the judgment of the Court of Appeals.
1
Passman was defeated in the 1976 primary election, and his tenure in office ended January 3, 1977.
2
In her complaint, Davis avers that her "salary was $18,000.00 per year with the expectation of a promotion to defendant's administrative assistant at a salary of $32,000.00 per year upon the imminent retirement of defendant's current administrative assistant." App. 4.
Davis was not hired through the competitive service. See 2 U.S.C. § 92.
3
The full text of Passman's letter is as follows:
Dear Mrs. Davis:
My Washington staff joins me in saying that we miss you very much. But, in all probability, inwardly they all agree that I was doing you an injustice by asking you to assume a responsibility that was so trying and so hard that it would have taken all of the pleasure out of your work. I must be completely fair with you, so please note the following:
You are able, energetic and a very hard worker. Certainly you command the respect of those with whom you work; however, on account of the unusually heavy work load in my Washington Office, and the diversity of the job, I concluded that it was essential that the understudy to my Administrative Assistant be a man. I believe you will agree with this conclusion.
It would be unfair to you for me to ask you to waste your talent and experience in my Monroe office because of the low salary that is available because of a junior position. Therefore, and so that your experience and talent may be used to advantage in some organization in need of an extremely capable secretary, I desire that you be continued on the payroll at your present salary through July 31, 1974. This arrangement gives you your full year's vacation of one month, plus one additional month. May I further say that the work load in the Monroe office is very limited, and since you would come in as a junior member of the staff at such a low salary, it would actually be an offense to you.
I know that secretaries with your ability are very much in demand in Monroe. If an additional letter of recommendation from me would be advantageous to you, do not hesitate to let me know. Again, assuring you that my Washington staff and your humble Congressman feel that the contribution you made to our Washington office has helped all of us.
With best wishes,
Sincerely,
/s/ Otto E. Passman
OTTO E. PASSMAN
Member of Congress
App. 6-7.
4
Davis also sought equitable relief in the form of reinstatement, as well as a promotion and salary increase. Id., at 4-5. Since Passman is no longer a Congressman, however, see n. 1, supra, these forms of relief are no longer available.
5
Passman also argued that his alleged conduct was "not violative of the Fifth Amendment to the Constitution," and that relief was barred "by reason of the sovereign immunity doctrine and the official immunity doctrine." App. 8.
6
The District Court also ruled that, although "the doctrines of sovereign and official immunity" did not justify dismissal of Davis' complaint, "the discharge of plaintiff on alleged grounds of sex discrimination by defendant is not violative of the Fifth Amendment to the Constitution." Id., at 9.
7
The panel also held that, although sovereign immunity did not bar a damages award against Passman individually, he was entitled at trial to a defense of qualified immunity.
8
The criteria set out in Cort v. Ash are:
"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, 484, 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, 693, 694, 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. 412, 423, 95 S.Ct. 1733, 1740, 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 law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394-395, 91 S.Ct. 1999, 2003-2004, 29 L.Ed.2d 619 (1971); id., at 400, 91 S.Ct. at 2006 (Harlan, J., concurring in judgment)." 422 U.S., at 78, 95 S.Ct., at 2088.
The Court of Appeals had some difficulty applying these criteria to determine whether a cause of action should be implied under the Constitution. It eventually concluded, however, (1) that although "the fifth amendment right to due process certainly confers a right upon Davis, the injury alleged here does not infringe this right as directly as" the violation of the Fourth Amendment rights alleged in Bivens, 571 F.2d, at 797; (2) that "[c]ongressional remedial legislation for employment discrimination has carefully avoided creating a cause of action for money damages for one in Davis' position," id., at 798; (3) that, unlike violations of the Fourth Amendment, "the breadth of the concept of due process indicates that the damage remedy sought will not be judicially manageable," id., at 799; and (4) that implying a cause of action under the Due Process Clause would create "the danger of deluging federal courts with claims otherwise redressable in state courts or administrative proceedings . . . ." Id., at 800.
9
Before it can be determined whether petitioner's Fifth Amendnent right has been violated, therefore, inquiry must be undertaken into what "important governmental objectives," if any, are served by the gender-based employment of congressional staff. See n. 21, infra. We express no views as to the outcome of this inquiry.
10
This right is personal; it is petitioner, after all, who must suffer the effects of such discrimination. See Cannon v. University of Chicago, 441 U.S. 677, 690-693 n. 13, 99 S.Ct. 1946, 1954-1955 n. 13, 60 L.Ed.2d 560 (1979); cf. Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, 13 S.Ct. 622, 626, 37 L.Ed. 463 (1893).
11
Respondent argues that the subject matter of petitioner's suit is nonjusticiable because judicial review of congressional employment decisions would necessarily involve a "lack of the respect due coordinate branches of government." Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). We disagree. While we acknowledge the gravity of respondent's concerns, we hold that judicial review of congressional employment decisions is constitutionally limited only by the reach of the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1. The Clause provides that Senators and Representatives, "for any Speech or Debate in either House, . . . shall not be questioned in any other Place." It protects Congressmen for conduct necessary to perform their duties "within the 'sphere of legitimate legislative activity.' " Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501, 95 S.Ct. 1813, 1820, 44 L.Ed.2d 324 (1975). The purpose of the Clause is "to protect the integrity of the legislative process by insuring the independence of individual legislators." United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972). Thus "[i]n the American governmental structure the clause serves the . . . function of reinforcing the separation of powers so deliberately established by the Founders." United States v. Johnson, 383 U.S. 169, 178, 86 S.Ct. 749, 754, 15 L.Ed.2d 681 (1966). The Clause is therefore a paradigm example of "a textually demonstrable constitutional commitment of [an] issue to a coordinate political department." Baker v. Carr, supra, at 217, 82 S.Ct., at 710. Since the Speech or Debate Clause speaks so directly to the separation-of-powers concerns raised by respondent, we conclude that if respondent is not shielded by the Clause, the question whether his dismissal of petitioner violated her Fifth Amendment rights would, as we stated in Powell v. McCormack, 395 U.S. 486, 548-549, 89 S.Ct. 1944, 1978, 23 L.Ed.2d 491 (1969), "require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a 'lack of respect due [a] coordinate branch of government,' nor does it involve an 'initial policy determination of a kind clearly for non-judicial discretion.' Baker v. Carr, 369 U.S. 186, at 217, 82 S.Ct. 691, at 710."
The en banc Court of Appeals did not decide whether the conduct of respondent was shielded by the Speech or Debate Clause. In the absence of such a decision, we also intimate no view on this question. We note, however, that the Clause shields federal legislators with absolute immunity "not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967). Defenses based upon the Clause should thus ordinarily be given priority, since federal legislators should be exempted from litigation if their conduct is in fact protected by the Clause. We nevertheless decline to remand this case to the en banc Court of Appeals before we have decided whether petitioner's complaint states a cause of action, and whether a damages remedy is an appropriate form of relief. These questions are otherwise properly before us and may be resolved without imposing on respondent additional litigative burdens. Refusal to decide them at this time may actually increase these burdens.
12
The restraints of the Fifth Amendment reach far enough to embrace the official actions of a Congressman in hiring and dismissing his employees. That respondent's conduct may have been illegal does not suffice to transform it into merely private action. "[P]ower, once granted, does not disappear like a magic gift when it is wrongfully used." Bivens, 403 U.S., at 392, 91 S.Ct., at 2002. See Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 287-289, 33 S.Ct. 312, 314-315, 57 L.Ed. 510 (1913).
13
See United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 1384, 91 L.Ed. 1789 (1947); Arnold, The Code "Cause of Action" Clarified by United States Supreme Court, 19 A.B.A.J. 215 (1933).
14
See Clark, The Code Cause of Action, 33 Yale L.J. 817, 820 (1924); Blume, The Scope of a Civil Action, 42 Mich.L.Rev. 257 (1943).
15
See, e. g., United States v. Employing Plasterers Assn., 347 U.S. 186, 74 S.Ct. 452, 98 L.Ed. 618 (1954); 2A J. Moore, Federal Practice ¶ 8.13, pp. 1704-1705 (2d ed. 1975) ("Perhaps it is not entirely accurate to say, as one court has said, that 'it is only necessary to state a claim in the pleadings . . . and not a cause of action.' While the Rules have substituted 'claim' or 'claim for relief' in lieu of the older and troublesome term 'cause of action,' the pleading still must state a 'cause of action' in the sense that it must show 'that the pleader is entitled to relief.' It is not enough to indicate merely that the plaintiff has a grievance but sufficient detail must be given so that the defendant, and the court, can obtain a fair idea of what the plaintiff is complaining, and can see that there is some legal basis for recovery") (footnotes omitted).
There was, of course, great controversy concerning the exact meaning of the phrase "cause of action" in the Codes. See 2 J. Moore, Federal Parctice ¶ 2.06, p. 359 n. 26 (2d ed. 1978); J. Pomeroy, Code Remedies 459-466 (4th ed. 1904); Wheaton, The Code "Cause of Action": Its Definition, 22 Cornell L.Q. 1 (1936); Clark, supra n. 14, at 837.
16
The Court of Appeals apparently found that petitioner lacked a "cause of action" in the sense that a cause of action would have been supplied by 42 U.S.C. § 1983. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), holds this Term that, although § 1983 serves "to ensure that an individual [has] a cause of action for violations of the Constitution," the statute itself "does not provide any substantive rights at all." Id., at 617, 618, 99 S.Ct., at 1916. Section 1983, of course provides a cause of action only for deprivations of constitutional rights that occur "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory," and thus has no application to this case.
17
Texas & N. O. R. Co. v. Railway & Steamship Clerks is now understood as having implied a "cause of action" although the opinion itself did not use the phrase. See Cannon v. University of Chicago, 441 U.S., at 690-693 n. 13, 99 S.Ct., at 1954-1955 n. 13.
18
Thus it may be said that jurisdiction is a question of whether a federal court has the power, under the Constitution or laws of the United States, to hear a case, see Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 384, 4 S.Ct. 510, 512, 28 L.Ed. 462 (1884); Montana-Dakota Utilities Co. v. Northwestern Public Serv. Co., 341 U.S. 246, 249, 71 S.Ct. 692, 694, 95 L.Ed. 912 (1951); standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or controversy, or
at least to overcome prudential limitations on federal-court jurisdiction, see Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975); cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court; and relief is a question of the various remedies a federal court may make available. A plaintiff may have a cause of action even though he be entitled to no relief at all, as, for example, when a plaintiff sues for declaratory or injunctive relief although his case does not fulfill the "preconditions" for such equitable remedies. See Trainor v. Hernandez, 431 U.S. 434, 440-443, 97 S.Ct. 1911, 1916-1917, 52 L.Ed.2d 486 (1977).
The Court of Appeals appeared to confuse the question of whether petitioner had standing with the question of whether she had asserted a proper cause of action. See National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 465 n. 13, 94 S.Ct. 690, 696, 38 L.Ed.2d 646 (1974). Although the court acknowledged the existence of petitioner's constitutional right, 571 F.2d, at 797-798, it concluded that she had no cause of action in part because "the injury alleged here does not infringe this right as directly as the injury inflicted in the unreasonable search of Webster Bivens offended the fourth amendment." Id., at 797. The nature of petitioner's injury, however, is relevant to the determination of whether she has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S., at 204, 82 S.Ct., at 703. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978). And under the criteria we have set out, petitioner clearly has standing to bring this suit. If the allegations of her complaint are taken to be true, she has shown that she "personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). Whether petitioner has asserted a cause of action, however, depends not on the quality or extent of her injury, but on whether the class of litigants of which petitioner is a member may use the courts to enforce the right at issue. The focus must therefore be on the nature of the right petitioner asserts.
19
See n. 8, supra.
20
Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933), held that a plaintiff who alleged that his property had been taken by the United States for public use without just compensation could bring suit directly under the Fifth Amendment.
21
Clause 9 of Rule XLIII of the House of Representatives prohibits sex discrimination as part of the Code of Official Conduct of the House:
"A Member, officer, or employee of the House of Representatives shall not discharge or refuse to hire any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
Clause 9 was adopted on January 14, 1975 see 121 Cong.Rec. 22, approximately six months after petitioner's discharge. In 1977, the House Commission on Administrative Review ("Obey Commission") termed "the anti-discrimination provisions of Rule XLIII . . . all but unenforceable." House Commission on Administrative Review, Recommendations and Rationales Concerning Administrative Units and Work Management, 95th Cong., 1st Sess., 53 (Comm.Print 1977). The Commission recommended the establishment of a Fair Employment Practices Panel to provide non-binding conciliation in cases of alleged violations of Clause 9. See H.Res. 766, 95th Cong., 1st Sess., § 504 (1977); Commission on Administrative Review, supra, at 52-53. This proposal was prevented from reaching the House floor, however, when the House defeated the Rule which would have governed consideration of the Obey Commission's resolution. See 123 Cong.Rec. 33435-33444 (Oct. 12, 1977).
On September 25, 1978, H.Res. 1380 was introduced calling for the implementation of Clause 9 through the creation of "a House Fair Employment Relations Board, a House Fair Employment Relations Office, and procedures for hearing and settling complaints alleging violations of Clause 9 of Rule XLIII . . . ." H.Res. 1380, 95th Cong., 2d Sess., § 2 (1978). H.Res. 1380 was referred to the House Committees on Administration and Rules, where it apparently languished. See 124 Cong.Rec. 31334 (Sept. 25, 1978). The House failed to consider it before adjournment.
There presently exists a voluntary House Fair Employment Practices Agreement. Members of the House who have signed the Agreement elect a House Fair Employment Practices Committee, which has authority to investigate cases of alleged discrimination among participating Members. The Committee has no enforcement powers.
22
Five Courts of Appeals have implied causes of action directly under the Fifth Amendment. See Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938 (1973); United States ex rel. Moore v. Koelzer, 457 F.2d 892 (CA3 1972); Loe v. Armistead, 582 F.2d 1291 (CA4 1978), cert. pending sub nom. Moffit v. Loe, No. 78-1260; States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (CA4 1974); Green v. Carlson, 581 F.2d 669 (CA7 1978), cert. pending, No. 78-1261; Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353 (CA9 1977), reversed in part and affirmed in part on other grounds sub nom. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Bennett v. Campbell, 564 F.2d 329 (CA9 1977).
23
Respondent does not dispute petitioner's claim that she "has no cause of action under Louisiana law." Brief for Petitioner 19. See 3 CCH Employment Practices ¶ 23,548 (Aug. 1978). And it is far from clear that a state court would have authority to effect a damages remedy against a United States Congressman for illegal actions in the course of his official conduct, even if a plaintiff's claim were grounded in the United States Constitution. See Tarble's Case, 80 U.S. 397, 13 Wall. 397, 20 L.Ed. 597 (1872). Deference to state-court adjudication in a case such as this would in any event not serve the purposes of federalism, since it involves the application of the Fifth Amendment to a federal officer in the course of his federal duties. It is therefore particularly appropriate that a federal court be the forum in which a damages remedy be awarded.
24
The reasoning and holding of Bivens is pertinent to the determination whether a federal court may provide a damages remedy. The question of the appropriateness of equitable relief in the form of reinstatement is not in this case, and we consequently intimate no view on that question.
25
The decision of the panel of the Court of Appeals for the Fifth Circuit found that respondent was not foreclosed "from asserting the same qualified immunity available to other government officials. See generally Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)." 544 F.2d 865, 881 (1977). The en banc Court of Appeals did not reach this issue, and accordingly we express no view concerning its disposition by the panel.
26
Since petitioner was not in the competitive service, see n. 2, supra, the remedial provisions of § 717 of Title VII are not available to her. In Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), we held that the remedies provided by § 717 are exclusive when those federal employees covered by the statute seek to redress the violation of rights guaranteed by the statute.
27
Section 717 prohibits discrimination on the basis of "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a).
*
This issue was fully briefed and argued before the en banc Court of Appeals. The court's opinion gives no indication of why the court did not decide it.
1
A court necessarily has wider latitude in interpreting the Constitution than it does in construing a statute, McCulloch v. Maryland, 17 U.S. 316, 407, 4 Wheat. 316, 407, 4 L.Ed. 579 (1819). Moreover, the federal courts have a far greater responsibility under the Constitution for the protection of those rights derived directly from it, than for the definition and enforcement of rights created solely by Congress. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S., at 407, 91 S.Ct., at 2010 (Harlan, J., concurring in judgment).
2
It is settled that where discretion exists, a variety of factors rooted in the Constitution may lead a federal court to refuse to entertain an otherwise properly presented constitutional claim. See, e. g., Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Alabama Public Service Comm'n v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610 (1933). Traditionally, the issue has arisen in the context of a federal court's exercise of its equity powers with respect to the States. Concerns of comity similar to those that govern our dealings with the States also come into play when we are asked to interfere with the functioning of Congress.
The Court suggests that because the Speech or Debate Clause of the Constitution embodies a separation-of-powers principle, the Constitution affords no further protection to the prerogatives of Members of Congress. Ante, at 246. This assertion not only marks a striking departure from precedent, but also constitutes a non sequitur. Our constitutional structure of government rests on a variety of checks and balances; the existence of one such check does not negate all others.
3
It is quite doubtful whether the Court should not consider respondent's Speech or Debate Clause claim as a threshold issue. The purpose of that Clause, when it applies, includes the protection of Members of Congress from the harassment of litigation. Since the Court chooses not to consider this claim, and addresses only the cause-of-action issue, I limit my dissent accordingly. In doing so, I imply no view as to the merits of the Speech or Debate Clause issue or to the propriety of not addressing the claim before all other issues.
4
The justification the Court relies upon is the duty of federal courts to vindicate constitutional rights—a duty no one disputes. But it never has been thought that this duty required a blind exercise of judicial power without regard to other interests or constitutional principles. Indeed, it would not be surprising for Congress to consider today's action unwarranted and to exercise its authority to reassert the proper balance between the legislative and judicial branches. If the reaction took the form of limiting the jurisdiction of federal courts, the effect conceivably could be to frustrate the vindication of rights properly protected by the Court.
| 12
|
442 U.S. 397
99 S.Ct. 2361
60 L.Ed.2d 980
SOUTHEASTERN COMMUNITY COLLEGE, Petitioner,v.Frances B. DAVIS.
No. 78-711.
Argued April 23, 1979.
Decided June 11, 1979.
Syllabus
Respondent, who suffers from a serious hearing disability and who seeks to be trained as a registered nurse, was denied admission to the nursing program of petitioner Southeastern Community College, a state institution that receives federal funds. An audiologist's report indicated that even with a hearing aid respondent cannot understand speech directed to her except through lipreading, and petitioner rejected respondent's application for admission because it believed her hearing disability made it impossible for her to participate safely in the normal clinical training program or to care safely for patients. Respondent then filed suit against petitioner in Federal District Court, alleging, inter alia, a violation of § 504 of the Rehabilitation Act of 1973, which prohibits discrimination against an "otherwise qualified handicapped individual" in federally funded programs "solely by reason of his handicap." The District Court entered judgment in favor of petitioner, confirming the audiologist's findings and concluding that respondent's handicap prevented her from safely performing in both her training program and her proposed profession. On this basis, the court held that respondent was not an "otherwise qualified handicapped individual" protected by § 504 and that the decision to exclude her was not discriminatory within the meaning of § 504. Although not disputing the District Court's factfindings, the Court of Appeals reversed, holding that in light of intervening regulations of the Department of Health, Education, and Welfare (HEW), § 504 required petitioner to reconsider respondent's application for admission without regard to her hearing ability, and that in determining whether respondent was "otherwise qualified," petitioner must confine its inquiry to her "academic and technical qualifications." The Court of Appeals also suggested that § 504 required "affirmative conduct" by petitioner to modify its program to accommodate the disabilities of applicants.
Held: There was no violation of § 504 when petitioner concluded that respondent did not qualify for admission to its program. Nothing in the language or history of § 504 limits the freedom of an educational institution to require reasonable physical qualifications for admission to a clinical training program. Nor has there been any showing in this case that any action short of a substantial change in petitioner's program would render unreasonable the qualifications it imposed. Pp. 405-414.
(a) The terms of § 504 indicate that mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context, but do not mean that a person need not meet legitimate physical requirements in order to be "otherwise qualified." An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap. HEW's regulations reinforce, rather than contradict, this conclusion. Pp. 405-407.
(b) Section 504 does not compel petitioner to undertake affirmative action that would dispense with the need for effective oral communication, such as by giving respondent individual supervision whenever she attends patients directly or by dispensing with certain required courses for respondent and training her to perform some but not all of the tasks a registered nurse is licensed to perform. On the record, it appears unlikely that respondent could benefit from any affirmative action that HEW regulations reasonably could be interpreted as requiring with regard to "modifications" of postsecondary educational programs to accommodate handicapped persons and the provision of "auxiliary aids" such as sign-language interpreters. Moreover, an interpretation of the regulations that required the extensive modifications necessary to include respondent in the nursing program would raise grave doubts about their validity. Neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds, and thus even if HEW has attempted to create such an obligation itself, it lacks the authority to do so. Pp. 407-412.
(c) The line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons will not always be clear, and situations may arise where a refusal to modify an existing program to accommodate the needs of a disabled person amounts to discrimination against the handicapped. In this case, however, petitioner's unwillingness to make major adjustments in its nursing program does not constitute such discrimination. Uncontroverted testimony established that the purpose of petitioner's program was to train persons who could serve the nursing profession in all customary ways, and this type of purpose, far from reflecting any animus against handicapped individuals, is shared by many if not most of the institutions that train persons to render professional service. Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person. Pp.412-413
574 F.2d 1158, reversed and remanded.
Eugene Gressman, Chapel Hill, N. C., for petitioner.
Marc P. Charmatz, Washington, D. C., for respondent.
[Amicus Curiae Information from pages 399-400 intentionally omitted]
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents a matter of first impression for this Court: Whether § 504 of the Rehabilitation Act of 1973, which prohibits discrimination against an "otherwise qualified handicapped individual" in federally funded programs "solely by reason of his handicap," forbids professional schools from imposing physical qualifications for admission to their clinical training programs.
2
* Respondent, who suffers from a serious hearing disability, seeks to be trained as a registered nurse. During the 1973-1974 academic year she was enrolled in the College Parallel program of Southeastern Community College, a state institution that receives federal funds. Respondent hoped to progress to Southeastern's Associate Degree Nursing program, completion of which would make her eligible for state certification as a registered nurse. In the course of her application to the nursing program, she was interviewed by a member of the nursing faculty. It became apparent that respondent had difficulty understanding questions asked, and on inquiry she acknowledged a history of hearing problems and dependence on a hearing aid. She was advised to consult an audiologist.
3
On the basis of an examination at Duke University Medical Center, respondent was diagnosed as having a "bilateral, sensori-neural hearing loss." App. 127a. A change in her hearing aid was recommended, as a result of which it was expected that she would be able to detect sounds "almost as well as a person would who has normal hearing." Id., at 127a-128a. But this improvement would not mean that she could discriminate among sounds sufficiently to understand normal spoken speech. Her lipreading skills would remain necessary for effective communication: "While wearing the hearing aid, she is well aware of gross sounds occurring in the listening environment. However, she can only be responsible for speech spoken to her, when the talker gets her attention and allows her to look directly at the talker." Id., at 128a.
4
Southeastern next consulted Mary McRee, Executive Director of the North Carolina Board of Nursing. On the basis of the audiologist's report, McRee recommended that respondent not be admitted to the nursing program. In McRee's view, respondent's hearing disability made it unsafe for her to practice as a nurse.1 In addition, it would be impossible for respondent to participate safely in the normal clinical training program, and those modifications that would be necessary to enable safe participation would prevent her from realizing the benefits of the program: "To adjust patient learning experiences in keeping with [respondent's] hearing limitations could, in fact, be the same as denying her full learning to meet the objectives of your nursing programs." Id., at 132a-133a.
5
After respondent was notified that she was not qualified for nursing study because of her hearing disability, she requested reconsideration of the decision. The entire nursing staff of Southeastern was assembled, and McRee again was consulted. McRee repeated her conclusion that on the basis of the available evidence, respondent "has hearing limitations which could interfere with her safely caring for patients." Id., at 139a. Upon further deliberation, the staff voted to deny respondent admission.
6
Respondent then filed suit in the United States District Court for the Eastern District of North Carolina, alleging both a violation of § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. § 794 (1976 ed., Supp. II),2 and a denial of equal protection and due process. After a bench trial, the District Court entered judgment in favor of Southeastern. 424 F.Supp. 1341 (1976). It confirmed the findings of the audiologist that even with a hearing aid respondent cannot understand speech directed to her except through lipreading, and further found:
7
"[I]n many situations such as an operation room intensive care unit, or post-natal care unit, all doctors and nurses wear surgical masks which would make lip reading impossible. Additionally, in many situations a Registered Nurse would be required to instantly follow the physician's instructions concerning procurement of various types of instruments and drugs where the physician would be unable to get the nurse's attention by other than vocal means." Id., at 1343.
Accordingly, the court concluded:
8
"[Respondent's] handicap actually prevents her from safely performing in both her training program and her proposed profession. The trial testimony indicated numerous situations where [respondent's] particular disability would render her unable to function properly. Of particular concern to the court in this case is the potential of danger to future patients in such situations." Id., at 1345.
9
Based on these findings, the District Court concluded that respondent was not an "otherwise qualified handicapped individual" protected against discrimination by § 504. In its view, "[o]therwise qualified, can only be read to mean otherwise able to function sufficiently in the position sought in spite of the handicap, if proper training and facilities are suitable and available." 424 F.Supp., at 1345. Because respondent's disability would prevent her from functioning "sufficiently" in Southeastern's nursing program, the court held that the decision to exclude her was not discriminatory within the meaning of § 504.3
10
On appeal, the Court of Appeals for the Fourth Circuit reversed. 574 F.2d 1158 (1978). It did not dispute the District Court's findings of fact, but held that the court had misconstrued § 504. In light of administrative regulations that had been promulgated while the appeal was pending, see 42 Fed.Reg. 22676 (1977),4 the appellate court believed that § 504 required Southeastern to "reconsider plaintiff's application for admission to the nursing program without regard to her hearing ability." 574 F.2d, at 1160. It concluded that the District Court had erred in taking respondent's handicap into account in determining whether she was "otherwise qualified" for the program, rather than confining its inquiry to her "academic and technical qualifications." Id., at 1161. The Court of Appeals also suggested that § 504 required "affirmative conduct" on the part of Southeastern to modify its program to accommodate the disabilities of applicants, "even when such modifications become expensive." 574 F.2d, at 1162.
11
Because of the importance of this issue to the many institutions covered by § 504, we granted certiorari. 439 U.S. 1065, 99 S.Ct. 830, 59 L.Ed.2d 30 (1979). We now reverse.5
II
12
As previously noted, this is the first case in which this Court has been called upon to interpret § 504. It is elementary that "[t]he 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); see Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 2375, 57 L.Ed.2d 239 (1978); Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977). Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate. Instead, it requires only that an "otherwise qualified handicapped individual" not be excluded from participation in a federally funded program "solely by reason of his handicap," indicating only that mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context.6 The court below, however, believed that the "otherwise qualified" persons protected by § 504 include those who would be able to meet the requirements of a particular program in every respect except as to limitations imposed by their handicap. See 574 F.2d, at 1160. Taken literally, this holding would prevent an institution from taking into account any limitation resulting from the handicap, however disabling. It assumes, in effect, that a person need not meet legitimate physical requirements in order to be "otherwise qualified." We think the understanding of the District Court is closer to the plain meaning of the statutory language. An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap.
13
The regulations promulgated by the Department of HEW to interpret § 504 reinforce, rather than contradict, this conclusion. According to these regulations, a "[q]ualified handicapped person" is, "[w]ith respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the [school's] education program or activity . . . ." 45 CFR § 84.3(k)(3) (1978). An explanatory note states:
14
"The term 'technical standards' refers to all nonacademic admissions criteria that are essential to participation in the program in question." 45 CFR pt. 84, App. A, p. 405 (1978) (emphasis supplied).
15
A further note emphasizes that legitimate physical qualifications may be essential to participation in particular programs.7 We think it clear, therefore, that HEW interprets the "other" qualifications which a handicapped person may be required to meet as including necessary physical qualifications.
III
16
The remaining question is whether the physical qualifications Southeastern demanded of respondent might not be necessary for participation in its nursing program. It is not open to dispute that, as Southeastern's Associate Degree Nursing program currently is constituted, the ability to understand speech without reliance on lipreading is necessary for patient safety during the clinical phase of the program. As the District Court found, this ability also is indispensable for many of the functions that a registered nurse performs.
17
Respondent contends nevertheless that § 504, properly interpreted, compels Southeastern to undertake affirmative action that would dispense with the need for effective oral communication. First, it is suggested that respondent can be given individual supervision by faculty members whenever she attends patients directly. Moreover, certain required courses might be dispensed with altogether for respondent. It is not necessary, she argues, that Southeastern train her to undertake all the tasks a registered nurse is licensed to perform. Rather, it is sufficient to make § 504 applicable if respondent might be able to perform satisfactorily some of the duties of a registered nurse or to hold some of the positions available to a registered nurse.8
18
Respondent finds support for this argument in portions of the HEW regulations discussed above. In particular, a provision applicable to postsecondary educational programs requires covered institutions to make "modifications" in their programs to accommodate handicapped persons, and to provide "auxiliary aids" such as sign-language interpreters.9 Respondent argues that this regulation imposes an obligation to ensure full participation in covered programs by handicapped individuals and, in particular, requires Southeastern to make the kind of adjustments that would be necessary to permit her safe participation in the nursing program.
19
We note first that on the present record it appears unlikely respondent could benefit from any affirmative action that the regulation reasonably could be interpreted as requiring. Section 84.44(d)(2), for example, explicitly excludes "devices or services of a personal nature" from the kinds of auxiliary aids a school must provide a handicapped individual. Yet the only evidence in the record indicates that nothing less than close, individual attention by a nursing instructor would be sufficient to ensure patient safety if respondent took part in the clinical phase of the nursing program. See 424 F.Supp., at 1346. Furthermore, it also is reasonably clear that § 84.44(a) does not encompass the kind of curricular changes that would be necessary to accommodate respondent in the nursing program. In light of respondent's inability to function in clinical courses without close supervision, Southeastern, with prudence, could allow her to take only academic classes. Whatever benefits respondent might realize from such a course of study, she would not receive even a rough equivalent of the training a nursing program normally gives. Such a fundamental alteration in the nature of a program is far more than the "modification" the regulation requires.
20
Moreover, an interpretation of the regulations that required the extensive modifications necessary to include respondent in the nursing program would raise grave doubts about their validity. If these regulations were to require substantial adjustments in existing programs beyond those necessary to eliminate discrimination against otherwise qualified individuals, they would do more than clarify the meaning of § 504. Instead, they would constitute an unauthorized extension of the obligations imposed by that statute.
21
The language and structure of the Rehabilitation Act of 1973 reflect a recognition by Congress of the distinction between the evenhanded treatment of qualified handicapped persons and affirmative efforts to overcome the disabilities caused by handicaps. Section 501(b), governing the employment of handicapped individuals by the Federal Government, requires each federal agency to submit "an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals . . . ." These plans "shall include a description of the extent to which and methods whereby the special needs of handicapped employees are being met." Similarly, § 503(a), governing hiring by federal contractors, requires employers to "take affirmative action to employ and advance in employment qualified handicapped individuals . . . ." The President is required to promulgate regulations to enforce this section.
22
Under § 501(c) of the Act, by contrast, state agencies such as Southeastern are only "encourage[d] . . . to adopt and implement such policies and procedures." Section 504 does not refer at all to affirmative action, and except as it applies to federal employers it does not provide for implementation by administrative action. A comparison of these provisions demonstrates that Congress understood accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so.10
23
Although an agency's interpretation of the statute under which it operates is entitled to some deference, "this deference is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history." Teamsters v. Daniel, 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 800 n. 20, 58 L.Ed.2d 808 (1979). Here, neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds.11 Accordingly, we hold that even if HEW has attempted to create such an obligation itself, it lacks the authority to do so.
IV
24
We do not suggest that the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons always will be clear. It is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue financial and administrative burdens upon a State. Thus, situations may arise where a refusal to modify an existing program might become unreasonable and discriminatory. Identification of those instances where a refusal to accommodate the needs of a disabled person amounts to discrimination against the handicapped continues to be an important responsibility of HEW.
25
In this case, however, it is clear that Southeastern's unwillingness to make major adjustments in its nursing program does not constitute such discrimination. The uncontroverted testimony of several members of Southeastern's staff and faculty established that the purpose of its program was to train persons who could serve the nursing profession in all customary ways. See, e. g., App. 35a, 52a, 53a, 71a, 74a. This type of purpose, far from reflecting any animus against handicapped individuals is shared by many if not most of the institutions that train persons to render professional service. It is undisputed that respondent could not participate in Southeastern's nursing program unless the standards were substantially lowered. Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person.12
26
One may admire respondent's desire and determination to overcome her handicap, and there well may be various other types of service for which she can qualify. In this case, however, we hold that there was no violation of § 504 when Southeastern concluded that respondent did not qualify for admission to its program. Nothing in the language or history of § 504 reflects an intention to limit the freedom of an educational institution to require reasonable physical qualifications for admission to a clinical training program. Nor has there been any showing in this case that any action short of a substantial change in Southeastern's program would render unreasonable the qualifications it imposed.
V
27
Accordingly, we reverse the judgment of the court below, and remand for proceedings consistent with this opinion.
28
So ordered.
1
McRee also wrote that respondent's hearing disability could preclude her practicing safely in "any setting" allowed by "a license as L[icensed] P[ractical] N[urse]." App. 132a. Respondent contends that inasmuch as she already was licensed as a practical nurse, McRee's opinion was inherently incredible. But the record indicates that respondent had "not worked as a licensed practical nurse except to do a little bit of private duty," id., at 32a, and had not done that for several years before applying to Southeastern. Accordingly, it is at least possible to infer that respondent in fact could not work safely as a practical nurse in spite of her license to do so. In any event, we note the finding of the District Court that "a Licensed Practical Nurse, unlike a Licensed Registered Nurse, operates under constant supervision and is not allowed to perform medical tasks which require a great degree of technical sophistication." 424 F.Supp. 1341, 1342-1343 (EDNC 1976).
2
The statute, as set forth in 29 U.S.C. § 794 (1976 ed., Supp. II), provides in full:
"No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees."
The italicized portion of the section was added by § 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, 92 Stat. 2982. Respondent asserts no claim under this portion of the statute.
3
The District Court also dismissed respondent's constitutional claims. The Court of Appeals affirmed that portion of the order, and respondent has not sought review of this ruling.
4
Relying on the plain language of the Act, the Department of Health, Education, and Welfare (HEW) at first did not promulgate any regulations to implement § 504. In a subsequent suit against HEW, however, the United States District Court for the District of Columbia held that Congress had intended regulations to be issued and ordered HEW to do so. Cherry v. Mathews, 419 F.Supp. 922 (1976). The ensuing regulations currently are embodied in 45 CFR pt. 84 (1978).
5
In addition to challenging the construction of § 504 by the Court of Appeals, Southeastern also contends that respondent cannot seek judicial relief for violations of that statute in view of the absence of any express private right of action. Respondent asserts that whether or not § 504 provides a private action, she may maintain her suit under 42 U.S.C. § 1983. In light of our disposition of this case on the merits, it is unnecessary to address these issues and we express no views on them. See Norton v. Mathews, 427 U.S. 524, 529-531, 96 S.Ct. 2771, 2774, 2775, 49 L.Ed.2d 672 (1976); Moor v. County of Alameda, 411 U.S. 693, 715, 93 S.Ct. 1785, 1798, 36 L.Ed.2d 596 (1973); United States v. Augenblick, 393 U.S. 348, 351-352, 89 S.Ct. 528, 531, 21 L.Ed.2d 537 (1969).
6
The Act defines "handicapped individual" as follows:
"The term 'handicapped individual' means any individual who (A) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (B) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services provided pursuant to subchapters I and III of this chapter. For the purposes of subchapters IV and V of this chapter, such term means any person who (A) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (B) has a record of such an impairment, or (C) is regarded as having such an impairment." § 7(6) of the Rehabilitation Act of 1973, 87 Stat. 361, as amended, 88 Stat. 1619, 89 Stat. 2-5, 29 U.S.C. § 706(6).
This definition comports with our understanding of § 504. A person who has a record of, or is regarded as having, an impairment may at present have no actual incapacity at all. Such a person would be exactly the kind of individual who could be "otherwise qualified" to participate in covered programs. And a person who suffers from a limiting physical or mental impairment still may possess other abilities that permit him to meet the requirements of various programs. Thus, it is clear that Congress included among the class of "handicapped" persons covered by § 504 a range of individuals who could be "otherwise qualified." See S.Rep.No. 93-1297, pp. 38-39 (1974), U.S.Code Cong. & Admin.News, p. 6373.
7
The note states:
"Paragraph (k) of § 84.3 defines the term 'qualified handicapped person.' Throughout the regulation, this term is used instead of the statutory term 'otherwise qualified handicapped person.' The Department believes that the omission of the word 'otherwise' is necessary in order to comport with the intent of the statute because, read literally, 'otherwise' qualified handicapped persons include persons who are qualified except for their handicap, rather than in spite of their handicap. Under such a literal reading, a blind person possessing all the qualifications for driving a bus except sight could be said to be 'otherwise qualified' for the job of driving. Clearly, such a result was not intended by Congress. In all other respects, the terms 'qualified' and 'otherwise qualified' are intended to be interchangeable." 45 CFR pt. 84, App. A, p. 405 (1978).
8
The court below adopted a portion of this argument:
"[Respondent's] ability to read lips aids her in overcoming her hearing disability; however, it was argued that in certain situations such as in an operating room environment where surgical masks are used, this ability would be unavailing to her.
"Be that as it may, in the medical community, there does appear to be a number of settings in which the plaintiff could perform satisfactorily as an RN, such as in industry or perhaps a physician's office. Certainly [respondent] could be viewed as possessing extraordinary insight into the medical and emotional needs of those with hearing disabilities.
"If [respondent] meets all the other criteria for admission in the pursuit of her RN career, under the relevant North Carolina statutes, N.C.Gen.Stat. §§ 90-158, et seq., it should not be foreclosed to her simply because she may not be able to function effectively in all the roles which registered nurses may choose for their careers." 574 F.2d 1158, 1161 n. 6 (1978).
9
This regulation provides:
"(a) Academic requirements. A recipient [of federal funds] to which this subpart applies shall make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student. Academic requirements that the recipient can demonstrate are essential to the program of instruction being pursued by such student or to any directly related licensing requirement not be regarded as discriminatory within the meaning of this section. Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.
* * * * *
"(d) Auxiliary aids. (1) A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the education program or activity operated by the recipient because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.
"(2) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions. Recipients need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature." 45 CFR § 84.44 (1978).
10
Section 115(a) of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 added to the 1973 Act a section authorizing grants to state units for the purpose of providing "such information and technical assistance (including support personnel such as interpreters for the deaf) as may be necessary to assist those entities in complying with this Act, particularly the requirements of section 504." 92 Stat. 2971, 29 U.S.C. § 775(a) (1976 ed., Supp. III). This provision recognizes that on occasion the elimination of discrimination might involve some costs; it does not imply that the refusal to undertake substantial changes in a program by itself constitutes discrimination. Whatever effect the availability of these funds might have on ascertaining the existence of discrimination in some future case, no such funds were available to Southeastern at the time respondent sought admission to its nursing program.
11
The Government, in a brief amicus curiae in support of respondent, cites a Report of the Senate Committee on Labor and Public Welfare on the 1974 amendments to the 1973 Act and several statements by individual Members of Congress during debate on the 1978 amendments, some of which indicate a belief that § 504 requires affirmative action. See Brief for United States as Amicus Curiae 44-50. But these isolated statements by individual Members of Congress or its committees, all made after the enactment of the statute under consideration, cannot substitute for a clear expression of legislative intent at the time of enactment. Quern v. Mandley, 436 U.S. 725, 736 n. 10, 98 S.Ct. 2069, 2075 n. 10, 56 L.Ed.2d 658 (1978); Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 714, 98 S.Ct. 1370, 1378, 55 L.Ed.2d 657 (1978). Nor do these comments, none of which represents the will of Congress as a whole, constitute subsequent "legislation" such as this Court might weigh in construing the meaning of an earlier enactment. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969).
The Government also argues that various amendments to the 1973 Act contained in the Rehabilitation Act Amendments of 1978 further reflect Congress' approval of the affirmative-action obligation created by HEW's regulations. But the amendment most directly on point undercuts this position. In amending § 504, Congress both extended that section's prohibition of discrimination to "any program or activity conducted by any Executive agency or by the United States Postal Service" and authorized administrative regulations to implement only this amendment. See n. 2, supra. The fact that no other regulations were mentioned supports an inference that no others were approved.
Finally, we note that the assertion by HEW of the authority to promulgate any regulations under § 504 has been neither consistent nor longstanding. For the first three years after the section was enacted, HEW maintained the position that Congress had not intended any regulations to be issued. It altered its stand only after having been enjoined to do so. See n. 4, supra. This fact substantially diminishes the deference to be given to HEW's present interpretation of the statute. See General Electric Co. v. Gilbert, 429 U.S. 125, 143, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976).
12
Respondent contends that it is unclear whether North Carolina law requires a registered nurse to be capable of performing all functions open to that profession in order to obtain a license to practice, although McRee, the Executive Director of the State Board of Nursing, had informed Southeastern that the law did so require. See App. 138a-139a. Respondent further argues that even if she is not capable of meeting North Carolina's present licensing requirements, she still might succeed in obtaining a license in another jurisdiction.
Respondent's argument misses the point. Southeastern's program, structured to train persons who will be able to perform all normal roles of a registered nurse, represents a legitimate academic policy, and is accepted by the State. In effect, it seeks to ensure that no graduate will pose a danger to the public in any professional role in which he or she might be cast. Even if the licensing requirements of North Carolina or some other State are less demanding, nothing in the Act requires an educational institution to lower its standards.
| 12
|
442 U.S. 444
99 S.Ct. 2388
60 L.Ed.2d 1017
SOUTHERN RAILWAY COMPANY, Petitioner,v.SEABOARD ALLIED MILLING CORP. et al. INTERSTATE COMMERCE COMMISSION, Petitioner, v. SEABOARD ALLIED MILLING CORP. et al. SEABOARD COAST LINE RAILROAD COMPANY et al., Petitioners, v. SEABOARD ALLIED MILLING CORP. et al.
Nos. 78-575, 78-597, and 78-604.
Argued April 23, 1979.
Decided June 11, 1979.
Rehearing Denied Oct. 1, 1979.
See 444 U.S. 890, 100 S.Ct. 194, 195.
Syllabus
When petitioner railroads proposed a seasonal increase in the shipping rates for grain and soybeans, a number of shippers filed protests with the Interstate Commerce Commission (ICC) requesting that it exercise its authority under § 15(8)(a) of the Interstate Commerce Act (Act) to suspend such rates and to investigate the charges of their illegality. But the ICC issued an order declining such request, although it admonished the railroads to correct any such violations as might exist and directed that records be kept to protect the shippers' right to recover damages in such subsequent proceedings as they might bring pursuant to § 13(1) of the Act. The Court of Appeals held that the ICC had begun an investigation but had then erroneously terminated it without adequately investigating the charges of illegality and without supporting its decision with appropriate findings. The court concluded that a decision by the ICC to refuse to make or to terminate an investigation of the lawfulness of a proposed tariff is subject to judicial review, even though suspension orders are not, primarily because a single § 15(8)(a) proceeding initiated by the ICC is a better means of determining the lawfulness of rates than numerous § 13(1) complaint proceedings initiated by shippers.
Held:
1. To the extent that the Court of Appeals interpreted the ICC's order as a final decision that the proposed tariff was lawful, rather than simply a discretionary decision not now to investigate its lawfulness, it misconstrued the order. The order's express language belies any such interpretation, and the ICC did not reject the shippers' claim of illegality on the merits but on the contrary admonished the railroads about possible violations. Moreover, since the ICC expressly indicated that charges of violation of the Act could be resolved in § 13(1) proceedings, it is plainly incorrect to interpret its action as a prejudgment on the issue. Pp. 452-454. 2. The ICC's "no investigation" decision is not subject to judicial review. Pp. 454-463.
(a) This conclusion is supported by § 15(8)(a)'s language of permission and discretion (the ICC "may, upon the complaint of an interested party . . ., order a hearing concerning the lawfulness of [a] rate"), and by the fact that the statute is silent on what factors should guide the ICC's decision. Pp. 455-456.
(b) The structure of the Act also indicates that Congress intended to prohibit judicial review of the ICC's "no investigation" decision. Congress did not use permissive language such as that found in § 15(8)(a) when it wished to create reviewable duties under the Act, but instead used mandatory language such as in § 13(1). To treat § 15(8)(a) as if it were written in § 13(1)'s mandatory language, would allow shippers to use the open-ended and ill-defined procedures in § 15(8)(a) to render obsolete the carefully designed and detailed procedures in § 13(1). Moreover, in view of the linkage between the ICC's power to investigate and its power to suspend proposed rates, the decisions holding that the merits of a suspension order are not reviewable, Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 95 S.Ct. 2336, 45 L.Ed.2d 191; United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254; Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52, furnish further authority for holding that a "no investigation" decision is not reviewable. Pp. 456-459.
(c) The legislative history of the Mann-Elkins amendments adding § 15(8) to the Act further supports nonreviewability of "no investigation" decisions. Prior to those amendments, the ICC had no authority to suspend rates, or to adjudicate their lawfulness in advance either of their becoming effective or of their being challenged in a § 13(1) complaint, and the adoption of § 15(8) was designed to avoid the disruptive consequences of judicial interference with the ICC's rate-making process. To allow the courts to review § 15(8)(a) investigation decisions would amount to "backhanded approval" of these same consequences, and judicial review would once again undermine the ICC's primary jurisdiction by bringing courts into the adjudication of the lawfulness of rates in advance of administrative consideration. Pp.459-460
3. There is no statutory support for a compromise position that, while not immediately reviewable, the ICC's decisions under § 15(8)(a) do become reviewable later, upon the completion of whatever proceedings may be initiated under § 13(1). While the § 13(1) remedy lessens the risk of harm from the ICC's initial refusal to investigate or suspend under § 15(8)(a), that remedy is independent of § 15(8)(a) proceedings. Pp. 463-464.
570 F.2d 1349, reversed.
Mark L. Evans, Washington, D. C., for the petitioner in No. 78-597.
Wandaleen Poynter, Jacksonville, Fla., for the petitioners in No. 78-604.
Richard A. Allen, Cambridge, Mass., for the respondent, the United States.
John H. Caldwell, Washington D. C., for the respondents Seaboard Allied Milling Corp., et al.
Harold E. Spencer, Chicago, Ill., for the respondents Board of Trade of the City of Chicago, et al.
Mr. Justice STEVENS delivered the opinion of the Court.
1
On September 14, 1977, the Interstate Commerce Commission decided not to exercise its authority under § 15(8)(a) of the Interstate Commerce Act (Act) to order a hearing to investigate the lawfulness of a seasonal rate increase proposed by a group of railroads.1 The question presented is whether the Commission's refusal to conduct such an investigation is subject to judicial review.
2
Because the Courts of Appeals for the Eighth Circuit, Seaboard Allied Milling Corp. v. ICC, 570 F.2d 1349, and the District of Columbia Circuit have answered this question differently,2 we granted certiorari. 439 U.S. 1066, 99 S.Ct. 831, 59 L.Ed.2d 31. We now hold that the Commission's "no investigation" decision is not reviewable.
3
Petitioner railroads' rate schedule was the first one proposed under § 202(d) of the Railroad Revitalization and Regulatory Reform Act of 1976 (the 4-R Act). 90 Stat. 36, amending 49 U.S.C. § 15 (1970 ed.) See App. to Pet. for Cert. in No. 78-597, p. 28a. That provision directs the Commission to adopt "expeditious procedures for the establishment of railroad rates based on seasonal, regional, or peak-period demand for rail services."3
4
In August 1977, after the Commission had promulgated its new standards and procedures for seasonal rate adjustments, see Ex parte No. 324, 355 I.C.C. 522, the Southern Freight Association proposed a 20% increase in the rates for grain and soybeans shipped from the Midwest in railroad-owned cars between September 15 and December 15, 1977. The railroads supported their proposal with statistics describing the high volume of grain shipments in the fall, an explanation of the anticipated effect of the temporary rates on railcar usage, and some cost evidence.
5
A number of shippers and large users of transported grain (hereinafter shippers) filed protests claiming the proposed rates were unlawful.4 They requested that the Commission exercise its authority under § 15(8)(a) to suspend these rates and to investigate the charges of illegality. On September 14, 1977, a month after the rates were filed, and eight days after receiving the protests, the Commission issued its order declining either to suspend or to investigate the legality of the rates. App. 286-291.
6
In that order the Commission admonished the railroads "to take prompt action to remove violations of the long-and-short-haul provision of section 4(1) of the Act, if any, in connection with inter-territorial and intra-territorial movements that may be caused by application of demand-sensitive rates on whole grains between points in southern territory." Id., at 288. Moreover, the Commission directed the carriers to file detailed weekly reports relating to the effects of the new schedules, id., at 289-290 (and, in a later order, to keep accounts of all charges and receipts under the rates, id., at 302), and "out of caution" it instructed its Bureau of Investigations and Enforcement and Bureau of Operations "to closely monitor this matter." Id., at 290. With respect to the basic question whether to suspend the rates and conduct a formal investigation, the Commission concluded:
7
"Weighing the contentions before us and the clear Congressional purpose to permit experimental ratemaking, we will permit this temporary adjustment to become effective." Id., at 289.
8
It noted, however, that § 13(1) of the Act, which allows shippers to initiate mandatory posteffective proceedings to inquire into and remedy violations of the Act, would still be available to "protect" persons aggrieved by the rates.5 App. 289.
9
Immediately after the Commission entered its order, two judges of the Court of Appeals granted an ex parte application for a temporary stay and enjoined the Commission from permitting the tariff to go into effect. Id., at 295. Eight days later, however, the court dissolved its stay and the new rates went into effect. Id., at 298-300. Two months after the seasonal tariff had expired, the Court of Appeals filed its opinion concluding that the Commission had begun an investigation but had then erroneously terminated it without "adequately investigat[ing] the charges" of "patent illegality" and without supporting its decision "with appropriate findings and conclusions." 570 F.2d, at 1352, 1355, 1356. It directed the Commission to hold hearings to investigate more fully the protestants' charges of patent illegality and, if the investigation revealed that the tariff was unlawful, to make appropriate provisions for refund of increased charges collected under the tariff. Id., at 1356.
10
Although some of the just-quoted passages suggest that the Court of Appeals viewed the Commission's order as an inadequately investigated decision on the merits, other passages indicate that it reviewed and disapproved of the order, realizing that it was a decision not to reach the merits and not to investigate the lawfulness of the rates. Because the period covered by the seasonal tariff had already expired, the court first stated that it would not decide whether the Commission's refusal to suspend the effectiveness of the rates pending investigation was reviewable. Id., at 1352. Assuming, however, that United States v. SCRAP, 412 U.S. 669, 698, 93 S.Ct. 2405, 2421, 37 L.Ed.2d 254, andArrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 667-668, 83 S.Ct. 984, 988-989, 10 L.Ed.2d 52, had established that a suspension decision is not reviewable, the court reasoned that the Commission's suspension and investigation powers are separate and distinct and that the factors that had prompted this Court in Arrow "to hold suspension orders not reviewable are not applicable to decisions of the Commission to refuse to make or to terminate an investigation of the lawfulness of a proposed tariff." 570 F.2d, at 1353. It then concluded that the latter type of decision is subject to judicial review even though the former is not, primarily because, in its view, a single § 15(8)(a) proceeding initiated by the Commission is a better means of determining the lawfulness of the rates than numerous § 13(1) complaint proceedings initiated by shippers contending that they have been overcharged. Id., at 1355.
11
We reverse. First, to the extent that the Court of Appeals interpreted the Commission's order as a final decision that the tariff was lawful, rather than simply a discretionary decision not now to investigate its lawfulness, it has misconstrued the order. Second, to the extent that its decision transcends this misinterpretation of the Commission's order and suggests that even a "no investigation" determination would be reviewable, it has misconstrued Congress' intent with respect to § 15(8)(a).
12
* It is, of course, true that a decision by the Commission following a § 15(8) investigation to approve or disapprove a set of rates is a judicially reviewable final decision. E. g., United States v. Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181. See Chicago v. United States, 396 U.S. 162, 90 S.Ct. 309, 24 L.Ed.2d 340. The shippers contend that this rule governs here. In their view, the Commission, by reviewing and then leaving intact rates it knew to be unlawful, effectively approved those rates. But the express language of the Commission's order belies any interpretation of its decision as a ruling on the legality of petitioner railroads' seasonal tariff.
13
The claim of illegality most forcefully urged by the shippers, both here and in the Court of Appeals, is that the schedules contain a number of violations of the long-and-shorthaul restrictions in § 4(1) of the Act. The Commission did not reject this claim on its merits; on the contrary, it admonished the carriers to correct any such violations that might exist and directed that records be kept to protect the shippers' right to recover their damages in such subsequent proceedings as they might bring pursuant to § 13(1) of the Act. App. 288-290. Since the Commission expressly indicated that charges of violation of § 4(1) could be resolved in § 13(1) proceedings, App. at 289, it is plainly incorrect to interpret its action as a prejudgment of the issue.6
14
The Commission did note in addition that "the evidence offered to support the alleged [§ 4(1)] violations [did] not warrant suspension" or investigation. Id., at 288. But, in light of the nature of the inquiry that the Commission makes when a request for suspension and investigation of an area-wide group of rates is filed, this, too, is clearly not a decision that there were no violations. Since 1910, when § 15(8)(a)'s precursor was added to the Act, the Commission has typically made its suspension and investigation decisions simultaneously; indeed, the Act appears to contemplate that result. See infra, at 458-459. In addition, the Act leaves the Commission only 30 days to decide on suspension before the rates automatically become effective. 49 U.S.C. § 6(3). The Commission's primary duty, therefore, is to make a prompt appraisal of the probable and general reasonableness and legality of the proposed schedule—which may, as in this case, involve thousands of rates for designated commodities and routes rather than a detailed review of the lawfulness of each individual component of the tariff schedules.7 In short, the Commission simply has no time to, and did not in these cases, finally decide on the lawfulness of the rate schedule or its individual components during the preliminary 30-day period.
II
15
Nor can § 15(8) be read to tolerate judicial review of the Commission's decision not to investigate the lawfulness of a proposed rate schedule. Although we will not lightly interpret a statute to confer unreviewable power on an administrative agency, Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 2419, 53 L.Ed.2d 506; Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377, we have no choice in this case. For the ultimate analysis is always one of Congress' intent, and in these cases, "there is persuasive reason to believe that [nonreviewability] was the purpose of Congress." Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681.
16
Initially, it is important to note the extremely limited scope of the administrative decision that we conclude is not judicially reviewable. We are not here concerned with the Commission's rate-suspension authority because, as we shall see, our prior cases have already placed the exercise of that authority beyond the control of the courts. Nor, in fact, are we holding entirely unreviewable the Commission's exercise of its rate-investigation authority. For any shipper may require the Commission to investigate the lawfulness of any rate at any time and may secure judicial review of any decision not to do so—by filing a § 13(1) complaint. E. g., ICC v. Baird, 194 U.S. 25, 39, 24 S.Ct. 563, 566, 48 L.Ed. 860.
17
Instead, our sole concern is the Commission's decision not to investigate under § 15(8)(a), a decision that has only two final consequences. First, the burden of proof with regard to reasonableness is placed on the shipper under § 13(1) rather than on the carrier, who would have borne it in a § 15(8)(a) proceeding. (With respect to all other aspects of lawfulness, however, the burden is borne by the shipper in both proceedings.) Second, the shipper's relief, if unlawfulness is proved, is limited under § 13(1) to actual damages rather than the full refund of overcharges available under § 15(8)(a). It is only with regard to these two determinations, neither of which necessarily affects any citizen's ultimate rights8 that we conclude—based on the language, structure, and history of the Act as well as the relevant case law—that the agency's exercise of discretion is unreviewable.
18
With respect to the Commission's investigation power, § 15(8)(a) is written in the language of permission and discretion. Under it, "the Commission may, upon the complaint of an interested party or upon its own initiative, order a hearing concerning the lawfulness of [a] rate [which] hearing may be conducted without answer or other formal pleading . . . ." (Emphasis added.)
19
The statute is silent on what factors should guide the Commission's decision; not only is "[t]he extent of this inquiry . . . not . . . marked . . . with certainty," cf. United States v. Louisiana, 290 U.S., at 77, 54 S.Ct., at 32, but also on the face of the statute there is simply "no law to apply" in determining if the decision is correct. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136.9 Similar circumstances have been emphasized in cases in which we have inferred nonreviewability. See Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 25 L.Ed.2d 192; Schilling v. Rogers, 363 U.S. 666, 674, 80 S.Ct. 1288, 1294, 4 L.Ed.2d 1478.
B
20
The structure of the Act also indicates that Congress intended to prohibit judicial review. Congress did not use permissive language such as that found in § 15(8)(a) when it wished to create reviewable duties under the Act. Instead, it used mandatory language, and it typically included standards to guide both the Commission in exercising its authority and the courts in reviewing that exercise. In particular, § 13(1), which plainly authorizes rate-investigation decisions that are reviewable, ICC v. Baird, supra, 194 U.S., at 39, 24 S.Ct. 563, provides that "[i]f . . . there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of . . . ." (Emphasis added.) The Court of Appeals' interpretation therefore treats § 15(8)(a) as if it were written in the mandatory language of § 13(1).
21
Of even greater significance, that interpretation would allow shippers to use the open-ended and ill-defined procedures in § 15(8)(a) to render obsolete the carefully designed and detailed procedures in § 13(1). For under the court's reading, at least when one of the perhaps thousands of rates in a proposed schedule is "patently illegal," any party could (and, given the burden-of-proof and remedial advantages, many surely would) force the Commission immediately to undertake an investigation under § 15(8)(a) and to reach a judicially reviewable decision on the legality of the rates. Nothing would be left for consideration under § 13(1). We, of course, are reluctant almost a century after the Act was passed to adopt an interpretation of it that would effectively nullify one of its original and most frequently used provisions.
22
The disruptive practical consequences of such a determination confirm our view that Congress intended no such result. The Commission reviews over 50,000 rate-schedule filings each year; many, including the one involved here, contain thousands of individual rates. See 91 ICC Ann.Rep. 113 (1977). If the Commission, which generally makes its § 15(8)(a) investigation decisions within 30 days in order to allow pre -effective suspension, must carefully analyze and explain its actions with regard to each component of each proposed schedule, and if it must increase the number of investigations it conducts, all in order to avoid judicial review and reversal, its workload would increase tremendously.
23
These practical effects of reviewability would be especially disruptive in the present context of seasonal rates proposed under § 202(d) of the 4-R Act. The policies underlying that provision favor greater freedom of action by the railroads, greater rate flexibility, especially with respect to short-term rates, and more limited supervision by the Commission10—all of which would be disserved if the courts may examine the Commission's initial investigation decisions with respect to temporary rate adjustments. Furthermore, an increase in the number of rate investigations in which the railroad, rather than the challenging party, bears the burden of proof and in which the challenger need not prove actual damages before recovering refunds would be out of place in a regulatory system that leaves "the initiative in setting rates . . . with the railroad." Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 311, 95 S.Ct. 2336, 2351, 45 L.Ed.2d 191.
24
There is an additional structural reason why the Commission's investigation decisions are unreviewable. Section 15(8) was originally included in the Mann-Elkins Act of 1910, 36 Stat. 552. As adopted, and as it has remained during the ensuing 70 years, the provision has given the Commission the power not only to investigate but also to suspend proposed rates. 49 U.S.C. § 15(8)(b). Congress phrased the two powers in precisely the same language and placed the same time limits on the exercise of both. See Asphalt Roofing Mfg. Assn. v. ICC, 186 U.S.App.D.C. 1, 8-9, 567 F.2d 994, 1001-1002 (1977); n. 2, supra. The two powers are inextricably linked because the Commission has no occasion to suspend a rate unless it also intends to investigate it. See United States v. Chesapeake & Ohio R. Co., 426 U.S. 500, 512-513, 96 S.Ct. 2318, 2324, 49 L.Ed.2d 14 (Chessie).
25
In view of this linkage, we need look no further than our previous decisions concluding that the merits of a suspension decision are not reviewable to find a sufficient answer to the question presented in these cases. Aberdeen & Rockfish R. Co. v. SCRAP, supra, 422 U.S., at 311, 95 S.Ct., at 2351; United States v. SCRAP,, 412 U.S., at 691-692, 698, 93 S.Ct., at 2417-2418, 2421; Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658.11 Indeed, if any distinction is to be drawn, it would make more sense to subject suspension rather than investigation decisions to review, for the pre-effective suspension of a new rate has a greater and more immediate impact on carriers and shippers than does the initiation of an investigation whose outcome is inevitably in doubt. See Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 641, 98 S.Ct. 2053, 2060; Chessie, supra, 426 U.S., at 513, 96 S.Ct., at 2324.12
C
26
The legislative history of the Mann-Elkins amendments to the Act also supports nonreviewability. Prior to the enactment of those amendments, the Commission had no authority to suspend rates, or to adjudicate their lawfulness in advance either of their becoming effective or of their being challenged by a private party in a § 13(1) complaint. In the years immediately preceding the enactment of the amendments, rapidly rising rates encouraged shippers, with some success, to ask the courts to enjoin unlawful rates before they went into effect. As a result of the ensuing judicial intervention in the ratemaking process, the Commission was divested of much of its primary jurisdiction with respect to rates, and the public was subjected to nonuniform rates that depended on whether or not the local district court had issued an injunction. See 21 ICC Ann.Rep. 9-10 (1907); 22 ICC Ann.Rep. 10-12 (1908); 23 ICC Ann.Rep. 6-7 (1909).13
27
As discussed at greater length in Arrow, supra, 372 U.S., at 662-672, 83 S.Ct., at 986-991, the adoption of § 15(8) was designed to avoid these disruptive consequences of judicial interference. If we should now allow the courts to review § 15(8) investigation decisions, we would be giving "backhanded approval" to these very same consequences. 372 U.S., at 664, 83 S.Ct., at 987. Judicial review would once again undermine the Commission's primary jurisdiction by bringing the courts into the adjudication of the lawfulness of rates in advance of administrative consideration. As we said in Arrow with respect to judicially mandated rate suspension:
28
"A court's disposition of an application for [an order directing the Commission to investigate rates] would seem to require at least some consideration of the applicant's claim that the carrier's proposed rates are unreasonable [or otherwise unlawful]. But such consideration would create the hazard of forbidden judicial intrusion into the administrative domain." Id., at 669-670, 83 S.Ct., at 990.
29
Moreover, this allowance for independent judicial appraisal of the reasonableness of rates by every court of appeals in the country might replicate the judicially created "hazard[s] to uniformity" that, along with the courts' assault on the Commission's primary jurisdiction, prompted Congress to pass § 15(8) in the first place. See 372 U.S., at 671, 83 S.Ct., at 991.14
D
30
Given the strength of the statutory and legislative evidence supporting nonreviewability, it is not surprising that prior to 1977 no court had ever even adverted to the possibility of reviewing a "no investigation" decision under § 15(8)(a). Nonetheless, this Court has indicated on at least two occasions that the decision whether the Commission should commence an investigation under an analogous provision in the Act, § 13a(1), is committed to the agency's discretion and therefore not reviewable.15
31
In Chicago v. United States, 396 U.S. 162, 90 S.Ct. 309, 24 L.Ed.2d 340, the Court held that orders discontinuing § 13a(1) investigations into the propriety of certain changes in passenger service were reviewable rulings on the merits. In so holding, however, the Court expressly distinguished a Commission decision on the question whether an investigation should be undertaken in the first place, saying:
32
"Whether the Commission should make an investigation of a § 13a(1) discontinuance [of passenger service] is of course within its discretion, a matter which is not reviewable. New Jersey v. United States, 168 F.Supp. 324, aff'd, 359 U.S. 27 [79 S.Ct. 607, 3 L.Ed.2d 625]" 396 U.S., at 165, 90 S.Ct., at 311.
33
In the New Jersey case cited in Chicago, a three-judge District Court had squarely held that the Commission's refusal to commence a § 13a(1) investigation into a railroad's abandonment of service was not reviewable. See 168 F.Supp. 324, 328 (NJ 1958). Our summary affirmance of that holding in 359 U.S. 27, 79 S.Ct. 607, 3 L.Ed.2d 625, while having less precedential value than an opinion in an argued case, was nonetheless a ruling on the merits, Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223, and it, along with the Chicago dictum, strongly supports the nonreviewability of § 15(8)(a) investigation determinations.
34
In short, the necessary " 'clear and convincing evidence' that Congress meant to prohibit all judicial review" of the Commission's limited decision not to initiate an investigation under § 15(8)(a) is provided by the language of the statute, as well as its place within the statutory design of the Act, its legislative history, and the light shed on it by our case law concerning analogous statutes. Dunlop v. Bachowski, 421 U.S., at 568, 95 S.Ct., at 1858. See Abbott Laboratories v. Gardner, 387 U.S., at 141, 87 S.Ct., at 1511.
III
35
We also find no statutory support for the Solicitor General's belated compromise position that, while not immediately reviewable (i. e., not "final" at the stage of the administrative proceedings involved in these cases), the Commission's decisions under § 15(8)(a) do become reviewable later, upon the completion of whatever proceedings may be initiated under § 13(1).16 Under this novel reading of the Act, if a shipper is denied § 13(1) relief, he not only may appeal that decision to a court of appeals but also may appeal the Commission's earlier decision not to suspend or investigate a rate under § 15(8)(a).
36
Although it is true that the § 13(1) remedy lessens the risk of harm from the Commission's initial refusal to investigate or to suspend under § 15(8)(a), Aberdeen & Rockfish R. Co., supra, 422 U.S., at 311, 95 S.Ct., at 2351, it is nonetheless clear that that remedy is independent of § 15(8)(a) proceedings. First, the language of § 15(8)(a) suggests no linkage to § 13(1) nor any basis for judicial review at any point in the administrative process. Second, § 13(1) has been an independent and self-contained procedure since the Act was first passed in 1887. When § 15(8)(a) was added some 23 years later, there was no indication that it was intended as an amendment to § 13(1), rather than as a limited pre-effective and Commission-initiated alternative to the posteffective and shipper-initiated procedures in § 13(1). Third, if shippers are encouraged in every case to request investigations under § 15(8)(a) in order to preserve for later review under § 13(1) a claim that one was not conducted, and if the Commission's decisions are ultimately subjected to review, many of the practical problems that we discussed above with respect to the Court of Appeals' approach would still arise.
37
In sum, the force of the arguments against reviewability of § 15(8)(a) investigation decisions is not diminished by altering the point in the administrative process at which the courts are allowed to intrude.
The judgment of the Court of Appeals is
38
Reversed.
39
Mr. Justice POWELL took no part in the consideration or decision of these cases.
1
At all relevant times, § 15(8) provided in pertinent part:
"(a) Whenever a schedule is filed with the Commission by a common carrier by railroad stating a new individual or joint rate, fare, or charge, or a new individual or joint classification, regulation, or practice affecting a rate, fare, or charge, the Commission may, upon the complaint of an interested party or upon its own initiative, order a hearing concerning the lawfulness of such rate, fare, charge, classification, regulation, or practice. The hearing may be conducted without answer or other formal pleading, but reasonable notice shall be provided to interested parties. Such hearing shall be completed and a final decision rendered by the Commission not later than 7 months after such rate, fare, charge, classification, regulation, or practice was scheduled to become effective, unless, prior to the expiration of such 7-month period, the Commission reports in writing to the Congress that it is unable to render a decision within such period, together with a full explanation of the reason for the delay. If such a report is made to the Congress, the final decision shall be made not later than 10 months after the date of the filing of such schedule. If the final decision of the Commission is not made within the applicable time period, the rate, fare, charge, classification, regulation, or practice shall go into effect immediately at the expiration of such time period, or shall remain in effect if it has already become effective. Such rate, fare, charge, classification, regulation, or practice may be set aside thereafter by the Commission if, upon complaint of an interested party, the Commission finds it to be unlawful.
"(b) Pending a hearing pursuant to subdivision (a), the schedule may be suspended, pursuant to subdivision (d), for 7 months beyond the time when it would otherwise go into effect, or for 10 months if the Commission makes a report to the Congress pursuant to subdivision (a), except under the following conditions . . . ." 90 Stat. 2630, 49 U.S.C. § 15(8).
On October 17, 1978, President Carter signed into law Subtitle IV of Title 49, United States Code, "Transportation," 49 U.S.C. § 10101 et seq. (1976 ed., Supp.II), which recodifies and revises some of the archaic language of the Interstate Commerce Act. See note preceding 49 U.S.C. § 10101 (1976 ed., Supp.II). Section 10707 of the recodified Title 49 corresponds to § 15(8) of the old statute. In this opinion we shall refer to the relevant statutes by their former designations.
2
In Asphalt Roofing Mfg. Assn. v. ICC, 186 U.S.App.D.C. 1, 8-9, 567 F.2d 994, 1001-1002 (1977), the Court of Appeals for the District of Columbia Circuit held:
"The orders challenged in each of these proceedings permitted rates filed by the railroads to go into effect without either investigation or suspension. It is firmly settled that ICC orders suspending rate increases for the statutory period are within the agency's sole discretion and are judicially unreviewable. . . . The United States and the petitioners urge that a distinction should be drawn between Commission orders refusing to suspend rate increases and those declining to institute an investigation; the latter, they argue, should be held reviewable. The basic difficulty with this argument is that section [15(8)(a)], which empowers the Commission both to suspend and to investigate proposed rate increases, grants both powers in substantially the same language. There is therefore no ground, on the basis of the Act, for treating the two powers differently for purposes of reviewability. We hold that the reviewability of the Commission's decision to permit the rate increases in these proceedings to go into effect without suspension or investigation is controlled by the cases holding the Commission's decision whether to suspend a rate increase to be unreviewable."
3
Section 202(d), codified originally at 49 U.S.C. § 15(17), and as set forth therein, provides as follows:
"Within 1 year after February 5, 1976, the Commission shall establish, by rule, standards and expeditious procedures for the establishment of railroad rates based on seasonal, regional, or peak-period demand for rail services. Such standards and procedures shall be designed to (a) provide sufficient incentive to shippers to reduce peak-period shipments, through rescheduling and advance planning; (b) generate additional revenues for the railroads; and (c) improve (i) the utilization of the national supply of freight cars, (ii) the movement of goods by rail, (iii) levels of employment by railroads, and (iv) the financial stability of markets served by railroads. Following the establishment of such standards and procedures, the Commission shall prepare and submit to the Congress annual reports on the implementation of such rates, including recommendations with respect to the need, if any, for additional legislation to facilitate the establishment of such demand-sensitive rates."
The provision is currently codified in 49 U.S.C. § 10727. (1976 ed., Supp.II). See n. 1, supra.
4
The shippers objected to the rates as unreasonably high in violation of 49 U.S.C. § 1(5); as discriminatory contrary to §§ 2, 3(1), because they applied only to railroad-owned cars; as not conforming to the goals of the seasonal-rate authorization; and as violating the long-and-short-haul clause of § 4(1).
5
Section 13(1) provides:
"Any person, firm, corporation, company, or association, or any mercantile, agricultural, or manufacturing society or other organization, or any body politic or municipal organization, or any common carrier complaining of anything done or omitted to be done by any common carrier subject to the provisions of this chapter in contravention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts; whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing, within a reasonable time, to be specified by the Commission. If such common carrier within the time specified shall make reparation for the injury alleged to have been done, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier or carriers shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper." 49 U.S.C. § 13(1).
This provision is currently codified in 49 U.S.C. § 11701(b). (1976 ed., Supp.II). See n. 1, supra.
6
The analysis in text applies with equal force to the Commission's treatment of the alleged § 2 and § 3(1) violations. See App. 288-289.
7
Cf. United States v. Louisiana, 290 U.S. 70, 75-77, 54 S.Ct. 28, 31-32, 78 L.Ed. 181; Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 312-313, 95 S.Ct. 2336, 2352; United States v. SCRAP, 412 U.S. 669, 692 n. 16, 93 S.Ct. 2405, 2418 n. 16 (even after actually investigating an areawide rate schedule and finding that it contains individually unlawful components, the Commission may properly approve it if the rates are "generally" lawful).
8
If a shipper proves that a rate is unreasonable and that he was damaged in the full amount he was overcharged, the outcome of a § 13(1) proceeding will be no different than that of a § 15(8)(a) proceeding in which the carrier fails to establish the reasonableness of the rate.
9
Our cases foreclose requiring the Commission to disapprove, much less to investigate, every rate schedule that can be shown to include some individually unlawful rates. E. g., United States v. Louisiana, supra, 290 U.S., at 75-77, 54 S.Ct., at 31-32. The standard proposed by the Court of Appeals, which would require an investigation if individual rates are "patently illegal," is equally foreclosed by those cases. Moreover, like the standard proposed by the Solicitor General, Brief for United States, 34 (review for "abuse of discretion or [action] contrary to [Commission's] statutory mandate"), it is entirely without support in the statute.
10
In its declaration of policy with respect to the Title of the 4-R Act that included the precursor of § 202(d), the Senate Report on that Act stated:
"[T]he purposes of [the Title] include fostering competition among all carriers in order to promote more adequate and efficient transportation and the attractiveness of rail investment, permitting greater railroad price flexibility, promotion of a rate structure more sensitive to variations in demand and separate rates for distinct services, formulation of standards and guidelines for determining adequate revenue levels, and modernizing and clarifying the functions of rate bureaus." S.Rep., No. 94-499, p. 45 (1975); U.S.Code Cong. & Admin.News 1976, pp. 14, 60.
See also id., at 15 (primary purpose of the 4-R Act amendments was to end "excessive regulatory delay"); n. 3, supra.
11
See also Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 638-639, n. 17, 98 S.Ct. 2053, 2059, n. 17, 56 L.Ed.2d 591. In those cases, the Court reaffirmed the conclusion in Arrow and the SCRAP cases "that courts may not independently appraise the reasonableness of rates"—i. e., the merits—in reviewing suspension decisions. It did, however, "conclude that Congress did not mean to cut off judicial review for [the] limited purpos[e]" of deciding whether the Commission had jurisdiction to suspend the rates in question, i. e., whether they were "new rates" within the meaning of § 15(8)(a). See also Schilling v. Rogers, 363 U.S. 666, 676-677, 80 S.Ct. 1288, 1295, 4 L.Ed.2d 1478 ("different considerations" apply to the reviewability of an agency "refus[al] or fail[ure] to exercise a statutory discretion" than to the reviewability of its decision once it does exercise that discretion). Here, it is conceded by all that the Commission has authority with respect to rates such as those at issue either to suspend (or investigate) or not to suspend (or investigate) them and that it has exercised its authority. The question raised is whether it did so correctly under the particular circumstances involved—a question that cannot be answered by a reviewing court without "independently apprais[ing] the [lawfulness] of [the] rat[e]."
12
Similarly, the situation in Arrow, in which the courts first held a "no suspension" decision unreviewable, was far more conducive to a finding of reviewability than the situation presented by these cases. For in Arrow, the parties seeking judicial intervention were competitors of the railroads alleging predatory pricing, rather than shippers alleging excessive pricing. As such, it was uncertain—and the Court expressly refused to decide—whether those complainants had access to the posteffective judicial remedies that are available to shippers such as respondents here. See 372 U.S., at 669, 83 S.Ct., at 990. In short, it was possible in Arrow, but not here, that nonreviewability would leave the aggrieved party without any judicial remedy at all.
13
See generally 1 I. Sharfman, The Interstate Commerce Commission 49-55 (1931); Spritzer, Uses of the Summary Power to Suspend Rates: An Examination of Federal Regulatory Agency Practices, 120 U.Pa.L.Rev. 39, 45-49 (1971).
14
Although most of the debate surrounding the relevant portions of the Mann-Elkins Act was concerned with the suspension power, it is absolutely clear both that Congress intended to commit that power to the unfettered discretion of the Commission and that it perceived it and the investigation power as closely linked. E. g., S.Rep.No.355, 61st Cong., 2d Sess., pt. 1, p. 9 (1910); 45 Cong.Rec. 3472 (1910) (Sen. Elkins); id., at 462 (transmittal message of Pres. Taft).
15
Title 49 U.S.C. § 13a(1) provides in relevant part:
"A carrier . . . may, but shall not be required to, file with the Commission . . . notice at least thirty days in advance of any . . . proposed discontinuance or change [in service]. The carrier or carriers filing such notice may discontinue or change any such operation or service pursuant to such notice except as otherwise ordered by the Commission pursuant to this paragraph . . . . Upon the filing of such notice the Commission shall have authority during said thirty days' notice period, either upon complaint or upon its own initiative without complaint, to enter upon an investigation of the proposed discontinuance or change. Upon the institution of such investigation, the Commission, by order served upon the carrier or carriers affected thereby at least ten days prior to the day on which such discontinuance or change would otherwise become effective, may require such train or ferry to be continued in operation or service, in whole or in part, pending hearing and decision in such investigation, but not for a longer period than four months beyond the date when such discontinuance or change would otherwise have become effective. If, after hearing in such investigation whether concluded before or after such discontinuance or change has become effective, the Commission finds that the operation or service of such train or ferry is required by public convenience and necessity and will not unduly burden interstate or foreign commerce, the Commission may by order require the continuance or restoration of operation or service of such train or ferry, in whole or in part, for a period not to exceed one year from the date of such order." (Emphasis added.)
This provision, it should be noted, closely parallels § 15(8)(a). Both use permissive language and both grant the Commission mutually supportive investigation and suspension powers.
16
The United States did not take this position in the Court of Appeals, nor, so far as we are advised, has this position previously been advanced to any federal court.
| 89
|
442 U.S. 415
99 S.Ct. 2371
60 L.Ed.2d 994
Hilmar G. MOORE et al., Appellants,v.John Pleasant SIMS et al.
No. 78-6.
Argued Feb. 26, 1979.
Decided June 11, 1979.
Syllabus
When school authorities reported suspected abuse of one of adult appellees' children to the Texas Department of Human Resources (Department), the Department took temporary custody of all three of appellees' minor children and instituted suit in the Harris County, Tex., Juvenile Court for their emergency protection under Title 2 of the Texas Family Code. The Juvenile Court entered an emergency ex parte order giving temporary custody to the Department. Appellees then filed a motion to modify the ex parte order, but when they were unable to obtain an immediate hearing, they filed a habeas corpus petition in Harris County rather than renewing the motion or appealing the ex parte order. The Harris County court ultimately entered an order transferring venue to the Montgomery County Juvenile Court, and at the Harris County judge's direction the Department filed another suit, which was also transferred to Montgomery County, while temporary custody of the children was continued in the Department. Rather than attempting to expedite a hearing in the Montgomery County court, appellees filed an action in Federal District Court, broadly challenging the constitutionality of the interrelated parts of Title 2's statutory scheme defining the contours of the parent-child relationship and the permissible areas and modes of state intervention. The District Court denied appellees a temporary restraining order, but later held that the state court's temporary orders had expired and that the children had to be returned to their parents. The Department then filed a new suit in the Montgomery County court, which issued a show-cause order and writ of attachment ordering that the child suspected of being abused be delivered to the temporary custody of his grandparents. Appellees countered by filing in the Federal District Court a second application for a temporary restraining order addressed to the Montgomery County Juvenile Court and this was granted. A three-judge District Court thereafter preliminarily enjoined the Department and other defendants from filing or prosecuting any state suit under the challenged state statutes until a final determination by the three-judge court. Subsequently, this determination was made, the court concluding that abstention under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, was unwarranted because the litigation was "multifaceted," involved custody of children, and was the product of procedural confusion in the state courts, and thereafter addressing the merits of the constitutional challenges.
Held: In light of the pending state proceedings, the Federal District Court should not have exercised its jurisdiction but should have abstained under the doctrine of Younger v. Harris, supra, which, in counseling federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff. Pp. 423-435.
(a) The basic concern—the threat to our federal system posed by displacement of state courts by those of the National Government—is applicable not only to state criminal proceedings but also to civil proceedings in which important state interests are involved. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482. As was the case in Huffman, the State here was a party to the state proceedings, and the temporary removal of a child in the child-abuse context is, like the public nuisance statute involved in Huffman, "in aid of and closely related to criminal statutes." Id., at 604, 95 S.Ct., at 1208. P.423
(b) While the District Court's reference to the litigation as being "multifaceted" as a reason for refusing abstention is unclear, it appears that this reference meant either that the appellees' constitutional challenge could not have been raised in the pending state proceedings, or that, in view of the breadth of such challenge, abstention was inappropriate. However, with respect to the pertinent inquiry whether the state proceedings afford an adequate opportunity to raise the constitutional claims, Texas law appears to raise no procedural barriers. And the breadth of a challenge to a complex state statutory scheme has traditionally militated in favor of abstention, not against it. Pp. 424-428.
(c) There are three distinct considerations that counsel abstention when broad-based challenges are made to state statutes. First is the concern of Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, that a federal court will be forced to interpret state law without the benefit of state-court consideration and therefore under circumstances where a constitutional determination is predicated on a reading of the statute that is not binding on state courts and may be discredited at any time, such dangers increasing with the breadth of the challenge. Second is the need for a concrete case or controversy, a concern also enhanced by the scope of the challenge and one that is demonstrated by the instant case. The third concern is the threat to our federal system of government posed by "the needless obstruction to the domestic policy of the states by forestalling state action in construing and applying its own statutes." Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 471, 65 S.Ct. 1384, 1394, 89 L.Ed. 1725. Almost every constitutional challenge—and particularly one as far ranging as that involved here—offers the opportunity for narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests. Pp.428-430
(d) With respect to appellees' argument that delay in affording them a hearing in state court made Younger abstention inappropriate, the federal injunction did in fact address the state proceeding and it was unnecessary to obtain release of the children, as they had already been placed in appellees' custody pursuant to federal-court order. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, distinguished. Furthermore, such argument cannot be distinguished from conventional claims of bad faith and other sources of irreparable harm; in this case the state authorities' conduct evinced no bad faith and, while there was confusion, confusion is not bad faith. Pp. 430-432.
(e) In the absence of bad faith, there remain only limited grounds for not applying Younger. Here, no claim could be properly made that the state proceedings were motivated by a desire to harass or that the challenged statute is " 'flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph,' " Huffman, supra, 420 U.S., at 611, 95 S.Ct., at 1211. Nor were there present in this case other "extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment," Younger, supra, at 53, 91 S.Ct., at 754. Unless it were held that every attachment issued to protect a child creates great, immediate, and irreparable harm warranting federal-court intervention, it cannot be properly concluded that with the state proceedings here in the posture they were at the time of the federal action, federal intervention was warranted. Pp. 432-435.
438 F.Supp. 1179, reversed and remanded.
David H. Young, Austin, Tex., for appellants.
Windell E. C. Porter, Fort Worth, Tex., for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Title 2 of the Texas Family Code was enacted in 1973 and first went into effect on January 1, 1974. It was amended substantially in the following year. The Title defines the contours of the parent-child relationship and the permissible areas and modes of state intervention. This suit presents the first broad constitutional challenge to interrelated parts of that statutory scheme. It raises novel constitutional questions of the correlative rights and duties of parents, children, and the State in suits affecting the parent-child relationship.
2
This litigation, involving suspected instances of child abuse, was initiated by state authorities in the Texas state courts in 1976. The state proceedings, however, were enjoined by the three-judge District Court below, which went on to find various parts of Title 2 unconstitutional on their face or as applied. We noted probable jurisdiction. 439 U.S. 925, 99 S.Ct. 306, 58 L.Ed.2d 317 (1978). This appeal first raises the question whether in light of the pending state proceedings, the Federal District Court should have exercised its jurisdiction. We conclude that it should not have done so and accordingly reverse and remand with instructions that the complaint be dismissed.
3
* The appellees in this case, husband and wife and their three minor children, seek a declaration that parts of Title 2 of the Texas Family Code unconstitutionally infringe family integrity.1 The state-court litigation was precipitated by school authorities who reported to the Texas Department of Human Resources (formerly the State Department of Public Welfare) on March 25, 1976, that a child, Paul Sims, suffered from physical injuries apparently inflicted or aggravated by his father on a visit to the Osborne Elementary School in Houston, Tex. To protect the Sims children and to investigate the extent of any injuries, the Texas Department of Human Resources (hereinafter Department) on the same day took temporary custody of all three Sims children, who were in the school, and had them examined by a physician. The doctor found that the children were battered, and Paul was hospitalized for 11 days.
4
On the day that it took custody of the children, the Department decided to institute a suit for emergency protection of the children under § 17.02 of the Texas Family Code.2 The suit was filed in the Harris County Juvenile Court on March 26, 1976, the day after the children were removed from the school. Pursuant to § 17.04 of the Texas Code, the Juvenile Court Judge entered an emergency ex parte order which gave temporary custody of the children to the Department.3
5
Five days later, the appellees appeared in court and moved to modify the ex parte order, the proper procedure for terminating the Department's temporary custody.4 A hearing on such a motion is required under Texas law, but the Juvenile Court Judge was temporarily unavailable and the court clerk returned the motion to appellees' attorney. Rather than renew the motion or appeal the emergency order, appellees filed a petition for a writ of habeas corpus in the same Harris County court.5 A hearing on that petition was held on April 5, 1976, and on that date the Juvenile Court Judge concluded that venue was properly in neighboring Montgomery County, where the children were residents, and he transferred the proceedings to that county. See Tex.Fam.Code Ann., Tit. 2, § 11.04(a) (1975). At the judge's direction, see, § 17.05(b)(2) (Supp.1978-1979), the Department filed a "Suit Affecting the Parent-Child Relationship" as authorized by § 11.02, which was also transferred to Montgomery County. In addition, the judge issued a temporary restraining order continuing the Department's temporary custody of the children.6
6
The appellees then had actual knowledge that the action had been moved to Montgomery County.7 There is no indication that any effort was made to expedite the hearing in that county; the appellees did not request an early hearing from state trial or appellate courts. Nor did they appeal the temporary order. See In re Stuart, 544 S.W.2d 821 (Tex.Civ.App.1976). Instead, on April 19, 1976, they filed this action in the United States District Court for the Southern District of Texas, and thereby initiated two months of procedural maneuvers in both the state and federal courts.
7
On April 20, a temporary restraining order was denied appellees by the District Court. A hearing on the application for a preliminary injunction was ultimately set for May 5. When the Department received notice of the federal proceeding on April 22, the pending state proceedings were suspended.
8
On May 4, however, one day before the scheduled federal hearing, the Simses returned to the state-court system, moving to file an original petition for a writ of habeas corpus in the Texas Court of Civil Appeals. The motion was denied for want of jurisdiction.
9
The next day, the Federal District Court held that the temporary orders issued by the state court had expired and that the children had to be returned to their parents, although the Department was not enjoined from pursuing a new action in state court. The court noted that it was requesting a three-judge court to consider appellees' constitutional challenge to Title 2. On May 14, the Department did file a new § 11.02 suit in Montgomery County, and the state court issued a show-cause order and writ of attachment ordering that Paul Sims be delivered to the temporary custody of his grandparents. The court set the show-cause hearing for May 21, but the Simses could not be found for purposes of service and the hearing was reset for June 21. The Simses countered by filing in the United States District Court a second application for a temporary restraining order addressed to the Montgomery County Juvenile Court, which was granted on May 21. The three-judge court on June 7 entered a preliminary injunction enjoining the Department and other defendants from filing or prosecuting any state suit under the challenged state statutes until a final determination by the three-judge court. That determination was made on October 12, 1977, and is the subject of this appeal.
10
After concluding that abstention under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), was unwarranted because the litigation was "multifaceted," involved custody of children, and was the product of procedural confusion in the state courts, the District Court addressed the merits of the due process challenges. It surveyed virtually every aspect of child-abuse proceedings in Texas. Sims v. State Dept. of Public Welfare, 438 F.Supp. 1179, 1189-1195. Since we conclude that it should never have embarked on this survey, we do not recount it here.
II
11
Appellants argue that the Federal District Court should have abstained in this case under the principles of Younger v. Harris, supra. The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff. Samuels v. Mackell, 401 U.S. 66, 69, 91 S.Ct. 764, 766, 27 L.Ed.2d 688 (1971). That policy was first articulated with reference to state criminal proceedings, but as we recognized in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the basic concern—that threat to our federal system posed by displacement of state courts by those of the National Government—is also fully applicable to civil proceedings in which important state interests are involved. As was the case in Huffman, the State here was a party to the state proceedings, and the temporary removal of a child in a child-abuse context is, like the public nuisance statute involved in Huffman, "in aid of and closely related to criminal statutes." Id., at 604, 95 S.Ct., at 1208. The existence of these conditions, or the presence of such other vital concerns as enforcement of contempt proceedings, Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), or the vindication of "important state policies such as safeguarding the fiscal integrity of [public assistance] programs," Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486 (1977), determines the applicability of Younger-Huffman principles as a bar to the institution of a later federal action.8
12
In Huffman, we noted those well-established circumstances where the federal court need not stay its hand in the face of pending state proceedings.
13
"Younger, and its civil counterpart which we apply today, do of course allow intervention in those cases where the District Court properly finds that the state proceeding is motivated by a desire to harass or is conducted in bad faith, or where the challenged statute is ' "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." ' " 420 U.S., at 611, 95 S.Ct., at 1212.
14
The District Court, however, did not rely expressly on these established exceptions to the Younger doctrine in finding that abstention was inappropriate in this case. Rather, it concluded that Younger abstention was not warranted because the action taken by the State of Texas in this case is "multifaceted"; "there is no single state proceeding to which the plaintiffs may look for relief on constitutional or any other grounds." 438 F.Supp., at 1187.
15
"Many of the challenged actions taken by the state do not and will not involve any judicial proceeding. Certainly as to these, there is no pending state civil litigation about which even to consider abstention." Ibid. (footnote omitted).
16
The court specifically alluded to the allegations regarding the Child Abuse and Neglect Report and Inquiry System (CANRIS), id., at 1187 n. 5, that is, the appellees' challenge on constitutional grounds to the State's computerized collection and dissemination of child-abuse information, where that information is not the product of a judicial determination of abuse or neglect.
17
The meaning of the District Court's reference to this litigation as "multifaceted" is unclear, but two possible interpretations suggest themselves. Under established principles of equity, the exercise of equitable powers is inappropriate if there is an adequate remedy at law. See Douglas v. City of Jeannette, 319 U.S. 157, 164, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943). Restated in the abstention context, the federal court should not exert jurisdiction if the plaintiffs "had an opportunity to present their federal claims in the state proceedings." Juidice v. Vail, supra, 430 U.S., at 337, 97 S.Ct., at 1218 (emphasis in original); see Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973). The pertinent issue is whether appellees' constitutional claims could have been raised in the pending state proceedings. The District Court's reference to the child-abuse reporting system reflects a misunderstanding of the nature of the inquiry. That the Department's suit does not necessarily implicate CANRIS is not determinative. The question is whether that challenge can be raised in the pending state proceedings subject to conventional limits on justiciability. On this point, Texas law is apparently as accommodating as the federal forum.9 Certainly, abstention is appropriate unless state law clearly bars the interposition of the constitutional claims.
18
There are also intimations in the District Court's opinion that its decision to exert jurisdiction was influenced by a broader and novel consideration—the breadth of appellees' challenge to Title 2.
19
"The entire statutory scheme by which Texas attempts to deal with the problem of child abuse has been challenged and should be viewed as an integrated whole. This court will not consider part of the scheme and abstain from another part. To do so would seriously jeopardize any hope for an effective statutory scheme and, in the name of comity and federalism, do violence to the state functions those principles seek to protect." 438 F.Supp., at 1187.10
20
Thus, the District Court suggests that the more sweeping the challenge the more inappropriate is abstention, and thereby inverts traditional abstention reasoning. The breadth of a challenge to a complex state statutory scheme has traditionally militated in favor of abstention, not against it. This is evident in a number of distinct but related lines of abstention cases which, although articulated in different ways, reflect the same sensitivity to the primacy of the State in the interpretation of its own laws and the cost to our federal system of government inherent in federal-court interpretation and subsequent invalidation of parts of an integrated statutory framework.
21
The earliest abstention cases were rooted in notions of equity. In Railroad Comm'n v. Pullman Co., 312 U.S. 496, 498, 61 S.Ct. 643, 644, 85 L.Ed. 971 (1941), the Court observed that the dispute before it implicated "a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open." The Court found the "resources of equity" sufficient to accommodate an adjustment which would avoid "the friction of a premature constitutional adjudication" and obviate the need for a federal court to interpret state law without the benefit of an authoritative interpretation by a state court. Id., at 500, 61 S.Ct., at 645. Thus evolved the doctrine of Pullman abstention: that a federal action should be stayed pending determination in state court of state-law issues central to the constitutional dispute. Mr. Justice Frankfurter in his opinion for the Court observed:
22
"The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction. There have been as many and as variegated applications of this supple principle as the situations that have brought it into play. . . . Few public interests have a higher claim on the discretion of a federal chancellor than the avoidance of needless friction with state policies, whether the policy relates to the enforcement of the criminal law, Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927; Spielman Motor Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322; or the administration of a specialized scheme for liquidating embarrassed business enterprises, Pennsylvania v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841, 96 A.L.R. 1166; or the final authority of a state court to interpret doubtful regulatory laws of the state, Gilchrist v. Interborough Co., 279 U.S. 159, 49 S.Ct. 282, 73 L.Ed. 652 . . . ." Ibid.
23
There are three distinct considerations that counsel abstention when broad-based challenges are made to state statutes, and it is common to see each figure in an abstention decision; for the broader the challenge, the more evident each consideration becomes. There is first the Pullman concern: that a federal court will be forced to interpret state law without the benefit of state-court consideration and therefore under circumstances where a constitutional determination is predicated on a reading of the statute that is not binding on state courts and may be discredited at any time—thus essentially rendering the federal-court decision advisory and the litigation underlying it meaningless. Watson v. Buck, 313 U.S. 387, 401-402, 61 S.Ct. 962, 966-967, 85 L.Ed. 1416 (1941); and Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 459-461, 65 S.Ct. 1384, 1388-1389, 89 L.Ed. 1725 (1945). These dangers increase with the breadth of the challenge.
24
The second consideration is the need for a concrete case or controversy—a concern also obviously enhanced by the scope of the challenge. That is demonstrated by the instant case. For example, appellees challenge § 11.15 of the Texas Family Code which provides that the standard of proof in any suit affecting the parent-child relationship shall be the "preponderance of the evidence." The District Court held that in any proceeding involving parental rights, the State must bear as a matter of federal constitutional law a burden of "clear and convincing" evidence. Yet no proceeding was pursued in this case to the point where the standard could be applied, and consequently appellees can point to no injury in fact. A second illustration is the challenge to statutorily authorized preseizure investigative procedures: there was apparently no preseizure investigation in this case.11 Alabama State Federation of Labor v. McAdory, supra, at 461, 65 S.Ct., at 1389; Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 245-246, 73 S.Ct. 236, 241-242, 97 L.Ed. 291 (1952).
25
The final concern prompted by broad facial attacks on state statutes is the threat to our federal system of government posed by "the needless obstruction to the domestic policy of the states by forestalling state action in construing and applying its own statutes." Alabama State Federation of Labor v. McAdory, supra, 325 U.S., at 471, 65 S.Ct., at 1394.
26
"The seriousness of federal judicial interference with state civil functions has long been recognized by this Court. We have consistently required that when federal courts are confronted with requests for such relief, they should abide by standards of restraint that go well beyond those of private equity jurisprudence." Huffman v. Pursue, Ltd., 420 U.S., at 603, 95 S.Ct., at 1208.
27
State courts are the principal expositors of state law. Almost every constitutional challenge—and particularly one as far ranging as that involved in this case—offers the opportunity for narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests. When federal courts disrupt that process of mediation while interjecting themselves in such disputes, they prevent the informed evolution of state policy by state tribunals. Trainor v. Hernandez, 431 U.S., at 445, 97 S.Ct., at 1919. The price exacted in terms of comity would only be outweighed if state courts were not competent to adjudicate federal constitutional claims—a postulate we have repeatedly and emphatically rejected. Huffman, supra, 420 U.S., at 610-611, 95 S.Ct., at 1211-1212.
28
In sum, the only pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims, and Texas law appears to raise no procedural barriers.12 Nor do appellees seriously argue to the contrary. Rather, they contend that because they were not granted a hearing at the time that they thought they were entitled to one, there was no practical opportunity to present their federal claims.13 Thus, the issue as posed by appellees is whether the conduct of the state judiciary was such that it in fact denied appellees an opportunity to be heard that was theirs in theory. That claim is related to the District Court's second theory why Younger abstention was not warranted in this case.
29
The District Court framed this "second independent basis for the inapplicability of Younger principles" as follows:
30
"[W]e note that the plaintiffs' constitutional challenge is directed primarily at the legality of the children's seizure and detention for a 42-day period without a hearing. It is clear that because this issue cannot be raised as a defense in the normal course of the pending judicial proceeding, abstention would be inappropriate. See Gerstein v. Pugh, 420 U.S. 103, 108 n. 9 [95 S.Ct. 854, 860 n. 9, 43 L.Ed.2d 54] (1975). The denial of custody of the children pending any hearing regardless of the result of the hearing, is in itself sufficient to prevent the application of Younger." 438 F.Supp., at 1187.
31
The reliance on Gerstein is misplaced. That case involved a challenge to pretrial restraint on the basis of a prosecutor's information alone, without the benefit of a determination of probable cause by a judicial officer. This Court held that the District Court properly found that the action was not barred by Younger because the injunction was not addressed to a state proceeding and therefore would not interfere with the criminal prosecutions themselves. "The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits." Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 860 n. 9, 43 L.Ed.2d 54 (1975). Here the injunction did address the state proceeding and it was not necessary to obtain the release of the children, for they had already been placed in the custody of their parents pursuant to a federal-court order. This Court has addressed the Younger doctrine on a number of occasions since Gerstein. In Juidice v. Vail, 430 U.S., at 336-337, 97 S.Ct., at 1217-1218, we noted that the teaching of Gerstein was that the federal plaintiff must have an opportunity to press his claim in the state courts and, as noted above, the appellees have not shown that state procedural law barred presentation of their claims—in fact Texas law seems clearly to the contrary.
32
As for the argument that the delay in affording the parents a hearing in state court made Younger abstention inappropriate, we cannot distinguish this argument from conventional claims of bad faith and others sources of great, immediate, and irreparable harm if the federal court does not intervene—traditional circumstances where a federal court need not stay its hand. We simply cannot agree that the conduct of the state authorities in this case evinces bad faith; and we do not read the District Court as expressly so finding. That there was confusion is undeniable. It is evident in the uncertainty regarding the effective period of a temporary order under § 11.11 and regarding the propriety of entering that order when venue was in Montgomery County. But confusion is not bad faith, and in this case confusion was the predictable byproduct of a new statutory scheme. The question would be a much closer one had appellees diligently sought a hearing in Montgomery County after the Harris County action was transferred or had they pursued their appellate remedies.
33
Once it is determined that there is no bad faith, there remain only limited grounds for not applying Younger. The District Court did not find, nor could it have found, "harassment." Nor could it credibly be claimed that Title 2 is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Watson v. Buck, 313 U.S., at 402, 61 S.Ct., at 967, quoted in Younger v. Harris, 401 U.S., at 53-54, 91 S.Ct., at 754-755.
34
The District Court placed some reliance on the observation in Younger that there may be other "extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment." Id., at 53, 91 S.Ct., at 755. See Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 676, 27 L.Ed.2d 701 (1971); Mitchum v. Foster, 407 U.S. 225, 230-231, 92 S.Ct. 2151, 2155-2156, 32 L.Ed.2d 705 (1972). The most extensive explanation of those "extraordinary circumstances" that might constitute great, immediate, and irreparable harm is that in Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975). Although its discussion is with reference to state criminal proceedings, it is fully applicable in this context as well.
35
"Only if 'extraordinary circumstances' render the state court incapable of fairly and fully adjudicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state criminal process. The very nature of 'extraordinary circumstances,' of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. But whatever else is required, such circumstances must be 'extraordinary' in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation." Id., at 124-125, 95 S.Ct., at 1531.
36
See Trainor v. Hernandez, 431 U.S., at 442 n. 7, 97 S.Ct., at 1917 n. 7.
37
To gauge whether such extraordinary circumstances exist in this case, we must view the situation at the time the state proceedings were enjoined. On May 21, when the District Court granted a temporary restraining order, and on June 7, when the three-judge court entered a preliminary injunction enjoining appellants from filing or prosecuting any state suit under the challenged state statutes until the District Court had finally determined the questions at issue, the two adult appellees had already successfully obtained possession of their minor children by means of the federal-court order of May 5. The District Court's order of that date did not enjoin the Department from instituting a new suit in state court, and such a suit was instituted in Montgomery County on May 14. The Montgomery County action was entitled a "Suit Affecting the Parent-Child Relationship," and the Department's petition related the documented child abuse and prayed that a writ of attachment issue to protect the minor child, Paul Sims. The state court issued a writ pursuant to § 11.11 directing that Paul Sims be placed in the temporary custody of his grandparents, appointing a guardian ad litem, and setting a hearing to show cause for May 21. The record indicates that appellees absented themselves from home, work, and school, thereby impeding the attachment and service of the show-cause order, and does not indicate that the actual physical custody of Paul Sims was ever surrendered by appellees pursuant to the Montgomery County court writ.
38
It is in this posture that one must consider the propriety of the District Court's injunction barring further state proceedings. Paul Sims was within the custody of his parents, and a specific date had been set for the show-cause hearing regarding the writ of attachment, at which time the parents could press their objections. Unless we were to hold that every attachment issued to protect a child creates great, immediate, and irreparable harm warranting federal-court intervention, we are hard pressed to conclude that with the state proceedings in this posture federal intervention was warranted.
39
Perhaps anticipating this logic, the District Court in this case concluded that "[t]he denial of custody of the children pending any hearing regardless of the result of the hearing, is in itself sufficient to prevent the application of Younger," 438 F.Supp., at 1187. Presumably, this conclusion was prompted by the District Court's observation that "the constitutional issues raised by the plaintiffs reach the application of due process in an area of the greatest importance to our society, the family." Ibid. But the District Court again inverts traditional abstention logic when it states that because the interests involved are important, abstention is inappropriate. Family relations are a traditional area of state concern. This was recognized by the District Court when it noted the "compelling state interest in quickly and effectively removing the victims of child abuse from their parents." Id., at 1189. We are unwilling to conclude that state processes are unequal to the task of accommodating the various interests and deciding the constitutional questions that may arise in child-welfare litigation.14
40
We reverse the judgment of the District Court and remand with instructions that the complaint be dismissed.
41
It is so ordered.
42
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join, dissenting.
43
Before asking whether any of the recognized exceptions to the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, make it appropriate for a federal court to exercise its jurisdiction to pass on the constitutionality of a state statute, the Court should first decide whether there is a legitimate basis for invoking the Younger doctrine at all. It has never been suggested that every pending proceeding between a State and a federal plaintiff justifies abstention unless one of the exceptions to Younger applies; for example, a pending charge that the federal plaintiff is guilty of a traffic violation will not justify dismissal of a federal attack on the constitutionality of the State's child-abuse legislation.
44
The policy of equitable restraint expressed in Younger "is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights." Kugler v. Helfant, 421 U.S. 117, 124, 95 S.Ct. 1524, 1531, 44 L.Ed.2d 15. Since "no citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts," Younger v. Harris, supra, 401 U.S., at 46, 91 S.Ct., at 751, there is no justification for intervention by a court of equity to rule on claims which may be raised as a defense to the criminal prosecution and which, if meritorious, will result in adequate relief in that forum. Moreover, in our federal system, intervention by a federal court with respect to the questions at issue in state proceedings carries with it additional costs in terms of comity and federalism, for it "can readily be interpreted 'as reflecting negatively upon the state court's ability to enforce constitutional principles.' " Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482.
45
The District Court's conclusion that abstention was inappropriate in this case was based squarely on its finding "that there is for these plaintiffs no 'opportunity to fairly pursue their constitutional claims in an ongoing state proceeding.' "1 In the absence of such an opportunity, Younger is simply inapplicable. Its underlying concerns with comity, equity, and federalism, we have recognized, have little force or vitality where there is no single pending state proceeding in which the constitutional claims may be raised "as a defense" and effective relief secured.2 "When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles." Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505. To be sure, it can be argued that whenever a federal court rules on the constitutionality of a state statute, it is making a decision that interferes with the operation of important state mechanisms, and performing a task that could equally be performed by a state court. See ante, at 427. But this sort of lesser affront to principles of comity and federalism is not one that justifies a federal court in refusing to exercise the jurisdiction over federal claims that Congress has entrusted to it. As this Court has repeatedly held, if a constitutional violation is alleged, even with respect to the most important state statute, a plaintiff is free to bring his suit in federal court without any requirement that he first exhaust state judicial remedies.3
46
In requiring abstention in this case, the Court, in my judgment, is departing from these well-established principles and extending Younger beyond its logical bounds. The Sims parents sought relief in federal court after 42 days of "diligent efforts" to secure a hearing in state court in order to regain custody of their children.4 Despite their efforts, they not only failed to regain custody, but also did not even have an opportunity to be heard in a state court. Their constitutional challenge in federal court was "directed primarily at the legality of the children's seizure and detention for a 42-day period without a hearing" and the statutory scheme which allowed this serious deprivation of liberty to occur.5
47
The only proceeding pending in state court at the time they brought this suit was a "Suit Affecting the Parent-Child Relationship" initiated by the Harris County Welfare Unit on April 5 pursuant to ch. 11 of the Texas Family Code.6 As of the first hearing in federal court on May 5, the plaintiff-parents had yet to receive notice of this suit, let alone any actual hearing before the judge. Had the federal court not intervened, however, notice would eventually have been provided, assuming compliance with the statute, and an adversary hearing would eventually have taken place. But this does not mean that federal-court abstention was required or appropriate.
48
In the hearing to be afforded under ch. 11, the state court would be required to decide whether the children should be returned to the custody of their parents or whether their interests would be better served by alternative arrangements for their care. With limited exceptions,7 the Simses' suit in federal court had nothing to do with that question. The issues raised by their federal complaint did not go to their fitness as parents or to their rights to permanent custody of their children. Rather, the thrust of their federal complaint was that the procedures employed by the State to gather information and to seize and retain the children pending the formal adversary hearing under ch. 11 violated the Constitution.8
49
As to these constitutional claims, the hearing to be afforded in state court on parental fitness and permanent custody was virtually as irrelevant as a hearing on a traffic violation. It is clearly the case, and the majority does not suggest otherwise, that the Simses could not avoid losing custody of their children at that point by successfully arguing that the State had acted unconstitutionally in its initial seizure of the children, or that a hearing should have been afforded earlier. These claims could not be raised "as a defense to the ongoing proceedings," Juidice v. Vail, 430 U.S. 327, 330, 97 S.Ct. 1211, 1214-1215, 51 L.Ed.2d 376;9 nothing in the ch. 11 determinations required the court to consider or pass upon the different issues that the Simses sought to raise in federal court.
50
It may well be, as the majority suggests, that the Simses could have raised their constitutional claims against the State, not in defense, but in the nature of permissive counterclaims. The findings of the District Court, however, suggest the contrary.10 But even if Texas does allow a party to raise any and all claims against the other party—no matter how unrelated—in a single proceeding, it certainly does not mandate that he do so. Broadening the scope of the state litigation to encompass new and difficult issues could only complicate and delay the Simses' efforts to obtain a hearing on the merits of the State's complaint as promptly as possible. In the meantime, of course, custody of the children would remain with the State and the deprivation of the parents' interests in the integrity of the family unit would continue.
51
The Younger doctrine does not require a litigant to pursue such an unwise and impractical course of litigation. Younger does not bar federal-court consideration of "an issue that could not be raised in defense of the criminal prosecution." Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 860, 43 L.Ed.2d 54.11 The considerations of comity, equity, and federalism underlying that doctrine are no more implicated by the Sims decision that claims unrelated to a pending state proceeding should be brought in federal rather than state court than they are by a similar decision in the absence of an unrelated state proceeding. If there is no requirement that federal plaintiffs initiate constitutional litigation in state rather than federal court in the first instance—and this Court has repeatedly held that there is not12—then the coincidence of an unrelated state proceeding provides no justification for imposing such a requirement.
52
While this factor alone is sufficient to render the Younger doctrine inapplicable, there is an even more basic objection to its application here. Younger abstention in these circumstances does not merely deprive the plaintiffs of their right to initiate new claims in the forum of their choice. Far more seriously, it deprives them of any relief at all. For this state forum could not and did not afford plaintiffs the sufficient opportunity to vindicate their constitutional rights that is not only a predicate to a Younger dismissal, but also their entitlement under the Constitution.
53
The three Sims children were taken into custody by the Harris County Child Welfare Unit on March 25, 1976, based on a telephone report that one of the children was possibly the victim of child abuse. After "diligent" but unsuccessful efforts by the parents to be heard in state court, they finally went to federal court where, 42 days after they lost custody of their children, the Simses were heard for the first time in a court of law and their children were returned to them.13 In due course, the federal court held that the state statutory procedures were defective because they did not provide for adequate notice to the parents, and did not provide for an adequate hearing whenever the State sought to retain custody for more than 10 days. Although other portions of the District Court decision as to the State's procedures are challenged by the appeal in this Court, the appellants have not questioned these aspects of the District Court's judgment.14 It is therefore undisputed that the Texas procedures did not afford the parents a fair opportunity to vindicate their rights.
54
"[T]he opportunity to raise and have timely decided by a competent state tribunal the federal issues involved,"15 is, of course, required to support a Younger dismissal. And in the circumstances of this case, it is also—concededly—required by the Due Process Clause. Here, such an opportunity was simply not available in the state-court system; the opportunity to be heard at a later ch. 11 hearing is, as the State accepts, too late to meet the requirements of due process and to afford relief as to the interim deprivation. By ordering abstention nonetheless, the majority is not only extending the Younger doctrine beyond its underlying premise, but is also implicitly sanctioning a deprivation of parental rights without procedural protections which, as the State itself agrees, are constitutionally required.16
55
In my judgment, there could be no serious criticism of a holding that the Younger doctrine could properly be invoked in this case to bar consideration of the limited and easily divisible aspects of the Simses' challenge which were directed at the procedures to be followed in the ch. 11 adversary hearing.17 That hearing would afford the parents "a fair and sufficient opportunity" to raise those claims, and there is no reason why the State should not have been able, if it wished, to go forward with an adversary hearing in the April 5 suit. Were the Court's decision today so limited, it would be supported by its prior cases. But in going further and holding that the federal court should have abstained as to the legality of the State's prehearing procedures and practices, the Court is applying the Younger doctrine where it simply does not belong. The District Court's finding that plaintiffs did not have a fair opportunity to pursue these constitutional claims in an ongoing state proceeding is amply supported by the record and the concessions of the State. This finding should foreclose any claim that the Younger doctrine makes abstention appropriate. I respectfully dissent.
1
Although it is not clear that the children were nominal parties in all of the proceedings in the state courts, for ease of reference all of those actions will be referred to as actions by the appellees.
2
Chapter 17 of Title 2 of the Texas Family Code provides for suits for protection of children in emergencies. Section 17.01 states:
"An authorized representative of the State Department of Public Welfare, a law-enforcement officer, or a juvenile probation officer may take possession of a child to protect him from an immediate danger to his health or physical safety and deliver him to any court having jurisdiction of suits under this subtitle, whether or not the court has continuing jurisdiction under Section 11.05 of this code. The child shall be delivered immediately to the court." Tex.Fam.Code Ann., Tit. 2, § 17.01 (Supp.1978-1979).
These emergency seizures are to be followed by hearings provided for in § 17.02 (1975):
"Unless the child is taken into possession pursuant to a temporary order entered by a court under Section 11.11 of this code, the officer or representative shall file a petition in the court immediately on delivery of the child to the court, and a hearing shall be held to provide for the temporary care or protection of the child."
3
Tex.Fam.Code Ann., Tit. 2, § 17.04 (1975):
"On a showing that the child is apparently without support and is dependent on society for protection, or that the child is in immediate danger of physical or emotional injury, the court may make any appropriate order for the care and protection of the child and may appoint a temporary managing conservator for the child."
§ 17.05 (Supp.1978-1979):
"(a) An order issued under Section 17.04 of this code expires at the end of the 10-day period following the date of the order, on the restoration of the child to the possession of its parent, guardian, or conservator, or on the issuance of ex parte temporary orders in a suit affecting the parent-child relationship under this subtitle, whichever occurs first.
"(b) If the child is not restored to the possession of its parent, guardian, or conservator, the court shall:
"(1) order such restoration or possession; or
"(2) direct the filing of a suit affecting the parent-child relationship in the appropriate court with regard to continuing jurisdiction."
4
§ 17.06 (1975):
"On the motion of a parent, managing conservator, or guardian of the person of the child, and notice to those persons involved in the original emergency hearing, the court shall conduct a hearing and may modify any emergency order made under this chapter if found to be in the best interest of the child."
5
Emergency orders are apparently appealable under Texas law. See § 17.07 (1975); In re R. E. W., 545 S.W.2d 573 (Tex.Civ.App.1976).
6
In issuing this temporary order, the Harris County Juvenile Court relied on Tex.Fam.Code Ann., Tit. 2, § 11.11 (1975 and Supp.1978-1979), which authorizes a court in a suit affecting the parent-child relationship to make "any temporary order for the safety and welfare of the child." The parties in this litigation disagree whether the Juvenile Court Judge had jurisdiction to enter that order. This is one of a number of ambiguous state-law questions in this case. Another is the period for which such a temporary order may remain in effect.
Suits affecting the parent-child relationship are authorized by § 11.02 (1975). These suits are the vehicles by which the State brings about any change in the parent-child relationship.
7
There is testimony in the record that a hearing had been set in Montgomery County for May 8, 1976. Defendant's Exhibit # 1A, Sworn Statement of Rex Downing 65-66.
8
Therefore, contrary to the suggestion of the dissent, we do not remotely suggest "that every pending proceeding between a State and a federal plaintiff justifies abstention unless one of the exceptions to Younger applies." Post, at 435-436.
9
Section 11.02(b) of Title 2 provides:
"(b) One or more matters covered by this subtitle may be determined in the suit. The court, on its own motion, may require the parties to replead in order that any issue affecting the parent-child relationship may be determined in the suit." Tex.Fam.Code Ann., Tit. 2, § 11.02(b) (1975).
As one Texas commentator has noted, § 11.02(b) vests "a broad range of powers and duties on district courts in cases in which minors appear before the court." Smith, Draftmen's Commentary to Title 2 of the Texas Family Code, 5 Tex.Tech.L.Rev. 389, 393 (1974). He notes that this section adopts the liberal approach to joinder of claims and remedies found in Tex.Rule Civ.Proc. 51. Section 11.14, which describes the hearing in suits affecting the parent-child relationship, fortifies that view. It states: "(a) Except as otherwise provided in this subtitle, proceedings shall be as in civil cases generally."
Texas Rule Civ.Proc. 51 is modeled on Fed.Rule Civ.Proc. 18 and provides in relevant part that "[t]he plaintiff in his petition or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party." Thus, Texas procedural law has long encouraged joinder of claims in civil actions. See, e. g., Texas Gauze Mills v. Goatley, 119 S.W.2d 887, 888 (Tex.Civ.App.1938); Blair v. Gay, 33 Tex. 157, 165 (1870).
In a very recent case, In re R. E. W., 545 S.W.2d 573 (1976), the Texas Court of Civil Appeals has indicated that under Title 2 the full range of constitutional challenges is cognizable in the emergency-removal proceedings and in suits affecting the parent-child relationship. Id., at 575. Therefore, this is not a case like Hernandez v. Finley, 471 F.Supp. 516 (NDIll.1978), summarily aff'd sub nom. Quern v. Hernandez, 440 U.S. 951, 99 S.Ct. 1488, 59 L.Ed.2d 765 (1979), where the three-judge court found, after our remand in Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), that the applicable state procedures did not permit the defendant to raise a constitutional challenge.
10
Thus, we cannot agree with the dissenters' characterization of the claims raised below as being as unrelated as child abuse and traffic violations. As the District Court properly perceived it, this action is a comprehensive attack on an integrated statutory structure best suited to resolution in one forum. Our disagreement with the District Court is with its choice of forum. Likewise, there is little in our case law or sound judicial administration to commend the suggestion that Younger should have been invoked with respect to some of the claims in this case and others should have been left to the federal forum. Post, at 443. Given the interrelated nature of the claims, such a bifurcation would result in the duplicative litigation and lack of state-court interpretation of an integrated statutory framework that this Court, in Trainor v. Hernandez, supra, 431 U.S., at 445, 97 S.Ct., at 1919, identified as central concerns underlying the Younger doctrine.
The dissenters' additional argument that a constitutional attack on state procedures automatically vitiates the adequacy of those procedures for purposes of the Younger-Huffman line of cases is reiteration of a theme sounded and rejected in prior cases. See Trainor v. Hernandez, supra, at 469-470, 97 S.Ct., at 1931-1932 (STEVENS, J., dissenting); Juidice v. Vail, 430 U.S. 327, 339-340, 97 S.Ct. 1211, 1219-1220, 51 L.Ed.2d 376 (1977) (STEVENS, J., concurring in judgment).
11
The District Court focused on psychiatric examinations, although there is no evidence that there was any examination of this nature administered to the Sims children before or after the temporary removal. Sims v. State Dept. of Public Welfare, 438 F.Supp. 1179, 1191.
12
The proposition that claims must be cognizable "as a defense" in the ongoing state proceeding, as put forward by our dissenting Brethren, post, at 436-437, converts a doctrine with substantive content into a mere semantical joust. There is no magic in the term "defense" when used in connection with the Younger doctrine if the word "defense" is intended to be used as a term of art. We do not here deal with the long-past niceties which distinguished among "defense," "counterclaims," "setoffs," "recoupments," and the like. As we stated in Juidice v. Vail, 430 U.S., at 337, 97 S.Ct., at 1218:
"Here it is abundantly clear that appellees had an opportunity to present their federal claims in the state proceedings. No more is required to invoke Younger abstention. . . . Appellees need be accorded only an opportunity to fairly pursue their constitutional claims in the ongoing state proceedings . . . and their failure to avail themselves of such opportunities does not mean that the state procedures were inadequate." (Footnotes omitted; emphasis in original.)
13
In their brief, appellees argue that there was no adequate remedy at state law because their "every effort, to obtain judicial relief in State court was either frustrated or denied." Brief for Appellees 25. During oral argument, counsel for appellees responded to a request for justification of federal-court involvement in this case by stating that appellees did not believe that there was a state action pending below. Tr. of Oral Arg. 34. Counsel did not argue that the perceived deficiency in the state proceedings was the product of a procedural bar to appellees' constitutional claims.
14
The dissenters' concern that requiring appellees to raise their challenges to the Texas Family Code in the pending proceeding will complicate and delay resolution of the merits of the State's claims would clearly be misplaced if the dissent were correct in its characterization of the bulk of appellees' claims as analogous to "a traffic violation" as far as their relation to the pending state proceeding is concerned. Appellees could simply obtain a resolution of the pending proceeding and then file their separate action. They are certainly not required to pursue "an unwise and impractical course of litigation." Post, at 440. Nor is there reason to believe that consolidating all of these claims in federal court or litigating simultaneously in two different courts would prove more expeditious, wise, or practical.
1
Sims v. State Dept. of Public Welfare, 438 F.Supp. 1179, 1189, quoting Juidice v. Vail, 430 U.S. 327, 338, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376. A comparable finding by the District Court following this Court's remand in Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486, led to our unanimous summary affirmance of a holding that Younger v. Harris did not justify abstention. See Quern v. Hernandez, 440 U.S. 951, 99 S.Ct. 1488, 59 L.Ed.2d 765.
2
See Steffel v. Thompson, 415 U.S. 452, 462-463, 94 S.Ct. 1209, 1217-1218, 39 L.Ed.2d 505; Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257. See also Younger v. Harris, 401 U.S., at 46, 91 S.Ct., at 751 ("the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution").
3
See Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 481, 5 L.Ed.2d 492; Steffel v. Thompson, supra. See also Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705; Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510.
4
"The plaintiffs' having sought through diligent efforts an opportunity to be heard in a state proceeding, this court must conclude that whatever opportunities exist for them are not such as to allow them to 'fairly pursue' their constitutional objections." 438 F.Supp., at 1188-1189.
5
Id., at 1187.
6
Id., at 1185. These proceedings were suspended, apparently voluntarily, by the State on April 22, when the Department of Human Resources received notice of the federal suit. A second ch. 11 suit was later filed by the Department, with respect to Paul Sims alone, on May 14, after suit in federal court had been filed and the first hearing held. Whether that action could in any circumstances serve as a predicate for a Younger dismissal is a substantial question which the Court does not purport to address. See Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223.
7
In addition to their challenges to the practices and procedures afforded by the State prior to a final adversary hearing, the Simses also claimed that an attorney ad litem should be appointed for a child in any suit affecting the parent-child relationship and that, where the State sought conservatorship of a child or termination of the parent-child relationship, it should be required to prove its case by clear and convincing evidence. The second claim relates only to the rules governing the formal ch. 11 hearing; the first to that hearing as well as prior hearings which they claimed were required.
8
See 438 F.Supp., at 1187.
9
"[T]he plaintiffs' constitutional challenge is directed primarily at the legality of the children's seizure and detention for a 42-day period without a hearing. It is clear that because this issue cannot be raised as a defense in the normal course of the pending judicial proceeding, abstention would be inappropriate." Ibid.
10
"[T]here is no single state proceeding to which the plaintiffs may look for relief on constitutional or any other grounds." Ibid.
11
See also Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556. See generally Developments in the Law—Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1318-1319 (1977).
12
See n. 3, supra.
13
The majority does not address separately the question of the federal court's authority to order the children returned to custody of their parents pending the final state hearing. Since that order did not resolve the merits of any issue to be decided in the state proceeding under ch. 11, I see no basis for distinguishing that decision from the District Court's underlying holdings that the statutory scheme pursuant to which the children were seized and detained by the State is unconstitutional.
14
Specifically, the appellants do not challenge the validity of paragraphs 2, 5, 6, 7, and 8 of the judgment entered by the District Court; these paragraphs read as follows:
"2. That the use of Section 11.11(a)(4) in conjunction with Chapter 17 of Title 2 of the Texas Family Code to deprive parents of the custody of children for longer than ten (10) days measured from the date of the deprivation, without a full adversary hearing, is an unconstitutional application of said provision.
* * *
"5. That Section 17.03 is unconstitutional on its face insofar as it fails to require the State to make all reasonable efforts to serve notice on the parents of the ex parte hearing to be held immediately after possession of a child is taken by the State.
"6. That Section 17.05 is unconstitutional on its face insofar as it fails to require the State to hold a full adversary hearing with adequate notice to the parents before possession of a child taken by the State can be retained by the State beyond ten (10) days.
"7. That Section 17.06 is unconstitutional on its face insofar as it fails to require the State to hold a full adversary hearing at the expiration of the ex parte order, if the State seeks to obtain an order to retain possession of the child beyond ten (10) days.
"8. That Section 34.05(c) is unconstitutional on its face insofar as it fails to require notice to the parents and a hearing in which the State makes a showing that a court order allowing psychological or psychiatric examinations is necessary to aid in the investigation of the abuse or neglect before such an order is obtained." App., at A-102—A-103.
15
Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488. In Gibson, the Court concluded that this predicate to a Younger dismissal was not present because of the District Court's conclusion—on the merits of the plaintiffs' challenge—that the State Board was incompetent to adjudicate the issues pending before it. The critical point was that "the administrative body itself was unconstitutionally constituted, and so not entitled to hear the charges filed against the appellees." 411 U.S., at 577, 93 S.Ct., at 1697. The case before us is analogous: if the District Court here is correct—and the State accepts that it is, at least in part—that the procedures afforded by the State after its seizure of the children fail to comport with the minimum requirements of due process, then there is no more reason to abstain in favor of an unconstitutionally limited opportunity than in favor of the unconstitutionally composed Board in Gibson. The availability of a later full hearing in state court does not cure the problem in either case. As the Court recognized in Gibson, a subsequent de novo hearing cannot undo the interim harm to constitutional rights. Id., at 577 n. 16, 93 S.Ct., 1697 n. 16. See also Juidice v. Vail, 430 U.S., at 340-341, 97 S.Ct., at 1219-1220 (STEVENS, J., concurring in judgment).
16
In some sense, every Younger dismissal involves an implicit constitutional decision that remitting the federal plaintiff to defend in the state forum is not itself a deprivation of his constitutional rights. In Younger itself, the Court was careful to point out that "[n]o citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts." Younger v. Harris, 401 U.S., at 46, 91 S.Ct., at 751. The same cannot be said about the extended deprivation of custody of one's children without any form of notice or hearing.
17
See n. 6, supra.
| 89
|
442 U.S. 366
99 S.Ct. 2345
60 L.Ed.2d 957
GREAT AMERICAN FEDERAL SAVINGS & LOAN ASSOCIATION et al., Petitioners,v.John R. NOVOTNY.
No. 78-753.
Argued April 18, 1979.
Decided June 11, 1979.
Syllabus
After respondent, a former officer, director, and loan officer of petitioner Great American Federal Savings and Loan Association (Association) received a right-to-sue letter upon filing a complaint with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, he brought this suit against the Association and its directors in Federal District Court, alleging that the Association had intentionally embarked upon a course of conduct the effect of which was to deny to female employees equal employment opportunity; that when respondent expressed support for the female employees at a meeting of the board of directors, his connection with the Association abruptly ended; and that his support for the female employees was the cause of the termination of his employment. Respondent claimed damages under 42 U.S.C. § 1985(3) (1976 ed., Supp. II), contending that he had been injured as the result of a conspiracy to deprive him of equal protection of, and equal privileges and immunities under, the laws. Section 1985(3) provides,inter alia, that a person so injured may have an action for damages against any one or more of the conspirators. The District Court granted petitioners' motion to dismiss, holding that § 1985(3) could not be invoked because the directors of a single corporation cannot, as a matter of law and fact, engage in a conspiracy. The Court of Appeals reversed, holding that conspiracies motivated by an invidious animus against women fall within § 1985(3), and that respondent, a male allegedly injured as a result of such a conspiracy, has standing to bring suit under that provision. The court further ruled that Title VII can be the source of a right asserted in a § 1985(3) action, and that intracorporate conspiracies come within the intendment of the section.
Held : Section 1985(3) may not be invoked to redress violations of Title VII. It creates no substantive rights itself but is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right—to equal protection of the laws or equal privileges and immunities under the laws—is breached by a conspiracy in the manner defined by the section. Thus, the question in this case is whether rights created by Title VII—respondent alleged that he was injured by a conspiracy to violate § 704(a) of Title VII, which makes it an unlawful employment practice for an employer to discriminate against an employee because he has opposed any employment practice made unlawful by Title VII or because he has participated in an investigation or proceeding under Title VII—may be asserted within the remedial framework of § 1985(3). If a violation of Title VII could be asserted through § 1985(3), a complainant could avoid most if not all of the detailed and specific provisions of Title VII, which provides a comprehensive plan of administrative and judicial process designed to provide an opportunity for nonjudicial and nonadversary resolution of claims. Perhaps most importantly, the complainant could completely bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII. Unimpaired effectiveness can be given to the plan of Title VII only by holding that deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3). Cf. Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402. Pp. 370-378.
3 Cir., 584 F.2d 1235, vacated and remanded.
Eugene K. Connors, Pittsburgh, Pa., for petitioners.
Stanley M. Stein, Pittsburgh, Pa., for respondent.
Lawrence G. Wallace, Washington, D. C., for the United States, as amicus curiae, by special leave of Court.
Mr. Justice STEWART delivered the opinion of the Court.
1
More than a century after their passage, the Civil Rights Acts of the Reconstruction Era continue to present difficult problems of statutory construction. Cf. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508. In the case now before us, we consider the scope of 42 U.S.C. § 1985(3) (1976 ed., Supp. II), the surviving version of § 2 of the Civil Rights Act of 1871.1
2
* The respondent, John R. Novotny, began his career with the Great American Federal Savings and Loan Association (hereinafter Association) in Allegheny County, Pa., in 1950. By 1975, he was secretary of the Association, a member of its board of directors, and a loan officer. According to the allegations of the complaint in this case the Association "intentionally and deliberately embarked upon and pursued a course of conduct the effect of which was to deny to female employees equal employment opportunity . . . ." When Novotny expressed support for the female employees at a meeting of the board of directors, his connection with the Association abruptly ended. He was not re-elected as secretary; he was not re-elected to the board; and he was fired. His support for the Association's female employees, he alleges, was the cause of the termination of his employment.
3
Novotny filed a complaint with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964.2 After receiving a right-to-sue letter,3 he brought this lawsuit against the Association and its directors in the District Court for the Western District of Pennsylvania. He claimed damages under 42 U.S.C. § 1985(3) (1976 ed., Supp. II), contending that he had been injured as the result of a conspiracy to deprive him of equal protection of and equal privileges and immunities under the laws.4 The District Court granted the defendants' motion to dismiss. It held that § 1985(3) could not be invoked because the directors of a single corporation could not, as a matter of law and fact, engage in a conspiracy. 430 F.Supp. 227, 230.5
4
Novotny appealed. After oral argument before a three-judge panel, the case was reargued before the en banc Court of Appeals for the Third Circuit, which unanimously reversed the District Court's judgment. 584 F.2d 1235. The Court of Appeals ruled that Novotny had stated a cause of action under § 1985(3). It held that conspiracies motivated by an invidious animus against women fall within § 1985(3), and that Novotny, a male allegedly injured as a result of such a conspiracy, had standing to bring suit under that statutory provision. It ruled that Title VII could be the source of a right asserted in an action under § 1985(3), and that intracorporate conspiracies come within the intendment of the section. Finally, the court concluded that its construction of § 1985(3) did not present any serious constitutional problem.6
5
We granted certiorari, 439 U.S. 1066, 99 S.Ct. 830, 59 L.Ed.2d 30, to consider the applicability of § 1985(3) to the facts alleged in Novotny's complaint.
II
6
The legislative history of § 2 of the Civil Rights Act of 1871, of which § 1985(3) was originally a part, has been reviewed many times in this Court.7 The section as first enacted authorized both criminal and civil actions against those who have conspired to deprive others of federally guaranteed rights. Before the 19th century ended, however, the Court found the criminal provisions of the statute unconstitutional because they exceeded the scope of congressional power, United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290; Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656, 32 L.Ed. 766, and the provisions thus invalidated were later formally repealed by Congress. The civil action provided by the Act remained, but for many years was rarely, if ever, invoked.
7
The provisions of what is now § 1985(3) were not fully considered by this Court until 1951, in the case of Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253.8 There the Court concluded that the section protected citizens only from injuries caused by conspiracies "under color of state law."9 Twenty years later, in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, the Court unanimously concluded that the Collins Court had accorded to the provisions of § 1985(3) too narrow a scope.10 The fears concerning congressional power that had motivated the Court in theCollins case had been dissolved by intervening cases. See Griffin v. Breckenridge, supra, at 96-97, 104-106, 91 S.Ct., at 1795, 1799-1800. Therefore, the Court found that § 1985(3) did provide a cause of action for damages caused by purely private conspiracies.
8
The Court's opinion in Griffin discerned the following criteria for measuring whether a complaint states a cause of action under § 1985(3):
9
"To come within the legislation a complaint must allege that the defendants did (1) 'conspire or go in disguise on the highway or on the premises of another' (2) 'for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.' It must then assert that one or more of the conspirators (3) did, or caused to be done, 'any act in furtherance of the object of [the] conspiracy,' whereby another was (4a) 'injured in his person of property' or (4b) 'deprived of having and exercising any right or privilege of a citizen of the United States.' " 403 U.S., at 102-103, 91 S.Ct. at 1798-1799.
10
Section 1985(3) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates. The primary question in the present case, therefore, is whether a person injured by a conspiracy to violate § 704(a) of Title VII of the Civil Rights Act of 1964 is deprived of "the equal protection of the laws, or of equal privileges and immunities under the laws" within the meaning of § 1985(3).11
11
Under Title VII, cases of alleged employment discrimination are subject to a detailed administrative and judicial process designed to provide an opportunity for nonjudicial and nonadversary resolution of claims. As the Court explained in Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147:
12
"Congress enacted Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin. . . . Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit."
13
As part of its comprehensive plan, Congress provided that a complainant in a State or locality with a fair employment commission must first go to that commission with his claim. Alternatively, an employee who believes himself aggrieved must first file a charge with the federal Equal Employment Opportunity Commission.12 The time limitations for administrative and judicial filing are controlled by express provisions of the statute.13 At several different points, the statutory plan prevents immediate filing of judicial proceedings in order to encourage voluntary conciliation.14 The EEOC has the power to investigate and to prosecute a civil action in a complainant's case.15 The Act provides for injunctive relief, specifically including backpay relief.16 The majority of the federal courts have held that the Act does not allow a court to award general or punitive damages.17 The Act expressly allows the prevailing party to recover his attorney's fees, and, in some cases, provides that a district court may appoint counsel for a plaintiff.18 Because the Act expressly authorizes only equitable remedies, the courts have consistently held that neither party has a right to a jury trial.19
14
If a violation of Title VII could be asserted through § 1985(3), a complainant could avoid most if not all of these detailed and specific provisions of the law. Section 1985(3) expressly authorizes compensatory damages; punitive damages might well follow. The plaintiff or defendant might demand a jury trial. The short and precise time limitations of Title VII would be grossly altered.20 Perhaps most importantly, the complaint could completely bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII.
15
The problem in this case is closely akin to that in Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402. There, we held that § 717 of Title VII provides the exclusive remedy for employment discrimination claims of those federal employees that it covers. Our conclusion was based on the proposition that
16
"[t]he balance, completeness, and structural integrity of § 717 are inconsistent with the petitioner's contention that the judicial remedy afforded by § 717(c) was designed merely to supplement other putative judicial relief." 425 U.S., at 832, 96 S.Ct. at 1968.
17
Here, the case is even more compelling. In Brown, the Court concluded that § 717 displaced other causes of action arguably available to assert substantive rights similar to those granted by § 717. Section 1985(3), by contrast, creates no rights. It is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right—to equal protection of the laws or equal privileges and immunities under the laws—is breached by a conspiracy in the manner defined by the section. Thus, we are not faced in this case with a question of implied repeal. The right Novotny claims under § 704(a) did not even arguably exist before the passage of Title VII. The only question here, therefore, is whether the rights created by Title VII may be asserted within the remedial framework of § 1985(3).
18
This case thus differs markedly from the cases recently decided by this Court that have related the substantive provisions of last century's Civil Rights Acts to contemporary legislation conferring similar substantive rights. In those cases we have held that substantive rights conferred in the 19th century were not withdrawn, sub silentio, by the subsequent passage of the modern statutes. Thus, in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413-417, 88 S.Ct. 2186, 2189-2191, 20 L.Ed.2d 1189, we considered the effect of the fair housing provisions of the Civil Rights Act of 1968 on the property rights guaranteed by the Civil Rights Act of 1866, now codified at 42 U.S.C. § 1982. And in Johnson v. Railway Express Agency, 421 U.S. 454, 457-461, 95 S.Ct. 1716, 1718-1720, 44 L.Ed.2d 295, we held that the passage of Title VII did not work an implied repeal of the substantive rights to contract conferred by the same 19th-century statute and now codified at 42 U.S.C. § 1981. See also Sullivan v. Little Hunting Park, 396 U.S. 229, 237-238, 90 S.Ct. 400, 404-405, 24 L.Ed.2d 386; Runyon v. McCrary, 427 U.S. 160, 174-175, 96 S.Ct. 2586, 2596, 49 L.Ed.2d 415.21
19
Somewhat similarly, in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, the Court upheld an employee's invocation of two alternative remedies for alleged employment discriminations arbitration under a collective-bargaining agreement, and litigation under Title VII. As the Court pointed out:
20
"In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums." Id., at 49-50, 94 S.Ct., at 1020.
21
This case, by contrast, does not involve two "independent" rights, and for the same basic reasons that underlay the Court's decision in Brown v. GSA, supra, reinforced by the other considerations discussed in this opinion, we conclude that § 1985(3) may not be invoked to redress violations of Title VII. It is true that a § 1985(3) remedy would not be coextensive with Title VII, since a plaintiff in an action under § 1985(3) must prove both a conspiracy and a group animus that Title VII does not require. While this incomplete congruity would limit the damage that would be done to Title VII, it would not eliminate it. Unimpaired effectiveness can be given to the plan put together by Congress in Title VII only by holding that deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3).
22
Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to that Court for further proceedings consistent with this opinion.
23
It is so ordered.
24
Mr. Justice POWELL, concurring.
25
I agree with the opinion of the Court as far as it goes, and I join it. I also agree with the views expressed by Mr. Justice STEVENS' concurring opinion. I write separately because it seems to me that the Court's decision affords unnecessarily limited guidance to courts in the federal system.
26
The Court's specific holding is that 42 U.S.C. § 1985(3) (1976 ed., Supp. II) may not be invoked to redress violations of Title VII. The broader issue argued to us in this case was whether this Civil War Era remedial statute, providing no substantive rights itself, was intended to provide a remedy generally for the violation of subsequently created statutory rights. For essentially the reasons suggested by Mr. Justice STEVENS, I would hold that § 1985(3) should not be so construed, and that its reach is limited to conspiracies to violate those fundamental rights derived from the Constitution.
27
The Court's unanimous decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), is to this effect. The alleged conspiracy there was an attempt by white citizens, resorting to force and violence, to deprive Negro citizens of the right to use interstate highways. In sustaining a cause of action under § 1985(3), the Court found that the alleged conspiracy—if implemented—would violate the constitutional "right of interstate travel" as well as the right of Negro citizens to be free from "invidiously discriminatory" action. The Court declared:
28
"That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others. For, though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe, in the words of Representative Cook, 'that Congress has a right to punish an assault and battery when committed by two or more persons within a State.' [Cong. Globe, 42d Cong., 1st Sess. 485 (1871).] The constitutional shoals that would lie in the path of interpreting § 1985[(3)] as a general federal tort law can be avoided by giving full effect to the congressional purpose—by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. See the remarks of Representatives Willard and Shellabarger, quoted supra, at 100 [supra, at 1797]. The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all." 403 U.S., at 101-102, 91 S.Ct., at 1798.
29
In reaching its conclusion, the Court identified "two constitutional sources" (id., at 107, 91 S.Ct., at 1801) relied upon to support a cause of action under § 1985(3):
30
"We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men.
31
* * * * *
32
"Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. [Citations omitted.] The 'right to pass freely from State to State' has been explicitly recognized as 'among the rights and privileges of National citizenship.' Twining v. New Jersey, 211 U.S. 78, 97 [29 S.Ct. 14, 19, 53 L.Ed. 97]. That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation." Id., at 105-106, 91 S.Ct., at 1800.
33
By contrast, this Court has never held that the right to any particular private employment is a "right of national citizenship," or derives from any other right created by the Constitution. Indeed, even Congress, in the exercise of its powers under the Commerce Clause of the Constitution, has accorded less than full protection to private employees. It excluded several classes of employers from the coverage of Title VII, for example, employers of fewer than 15 employees. See 42 U.S.C. § 2000e(b). Nor does the Constitution create any right to be free of gender-based discrimination perpetuated solely through private action.
34
The rationale of Griffin accords with the purpose, history, and common understanding of this Civil War Era statute. Rather than leave federal courts in any doubt as to the scope of actions under § 1985(3), I would explicitly reaffirm the constitutional basis of Griffin.*
35
Mr. Justice STEVENS, concurring.
36
While I join the Court's opinion, including its reliance on Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402, and while I agree with much of Mr. Justice POWELL's concurrence, I add a few words of my own to explain why I would reach the same conclusion even if the Court had agreed with my dissenting views in Brown.
37
Sections 1983 and 1985(3) of Title 42 of the United States Code (1976 ed., and Supp. II) are the surviving direct descendants of §§ 1 and 2 of the Civil Rights Act of 1871. 17 Stat. 13. Neither of these sections created any substantive rights. Earlier this Term we squarely held that § 1983 merely provides a remedy for certain violations of certain federal rights,1 and today the Court unequivocally holds that § 1985(3) "provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates." Ante, at 372.2
38
Somewhat different language was used by Congress in describing the substantive rights encompassed within the two provisions: § 1 of the 1871 Act, the predecessor to § 1983, referred to "rights, privileges, or immunities secured by the Constitution of the United States," whereas § 2, the predecessor to § 1985(3), referred to "equal protection of the laws" and "equal privileges and immunities under the laws."3 The import of the language, however, as well as the relevant legislative history, suggests that the Congress which enacted both provisions was concerned with providing federal remedies for deprivations of rights protected by the Constitution and, in particular, the newly ratified Fourteenth Amendment. If a violation was effected "under color of any law, statute, ordinance, regulation, custom, or usage of any State," § 1983 afforded redress; if a violation was caused by private persons who "conspire or go in disguise on the highway," § 1985(3) afforded redress. Thus, the former authorized a remedy for state action depriving an individual of his constitutional rights, the latter for private action.
39
Some privileges and immunities of citizenship, such as the right to engage in interstate travel and the right to be free of the badges of slavery, are protected by the Constitution against interference by private action, as well as impairment by state action. Private conspiracies to deprive individuals of these rights are, as this Court held in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, actionable under § 1985(3) without regard to any state involvement.4
40
Other privileges and immunities of citizenship such as the right to due process of law and the right to the equal protection of the laws are protected by the Constitution only against state action. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161. If a state agency arbitrarily refuses to serve a class of persons—Chinese-Americans, for example, see Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220—it violates the Fourteenth Amendment. Or if private persons take conspiratorial action that prevents or hinders the constituted authorities of any State from giving or securing equal treatment, the private persons would cause those authorities to violate the Fourteenth Amendment; the private persons would then have violated § 1985(3).5
41
If, however, private persons engage in purely private acts of discrimination—for example, if they discriminate against women or against lawyers with a criminal practice, see Dombrowski v. Dowling, 459 F.2d 190, 194-196—they do not violate the Equal Protection Clause of the Fourteenth Amendment.6 The rights secured by the Equal Protection and Due Process Clauses of the Fourteenth Amendment are rights to protection against unequal or unfair treatment by the State, not by private parties. Thus, while § 1985(3) does not require that a defendant act under color of state law, there still can be no claim for relief based on a violation of the Fourteenth Amendment if there has been no involvement by the State. The requirement of state action, in this context, is no more than a requirement that there be a constitutional violation.
42
Here, there is no claim of such a violation. Private discrimination on the basis of sex is not prohibited by the Constitution. The right to be free of sex discrimination by other private parties is a statutory right that was created almost a century after § 1985(3) was enacted. Because I do not believe that statute was intended to provide a remedy for the violation of statutory rights—let alone rights created by statutes that had not yet been enacted—I agree with the Court's conclusion that it does not provide respondent with redress for injuries caused by private conspiracies to discriminate on the basis of sex.7
43
With this additional explanation of my views, I join the Court's opinion.
44
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
45
The Court today releases employers acting with invidious discriminatory animus in concert with others from liability under 42 U.S.C. § 1985(3) (1976 ed., Supp. II) for the injuries they inflict. Because for both respondent in this case and as a general matter § 1985(3) is an entirely consistent supplement to Title VII, I dissent.
46
* Respondent sought compensatory damages under § 1985(3)1 on the ground that he had been injured by acts done in furtherance of a conspiracy for the purpose of depriving others of "equal privileges and immunities" guaranteed in § 703(a) of Title VII,2 which prohibits discrimination on the basis of, inter alia, sex. Additionally, and separately, respondent sought relief under Title VII itself on the ground that he had been deprived of his right under § 704(a) of Title VII3 not to be discriminated against because he assisted others in asserting their Title VII rights. Petitioners have not sought review of the Court of Appeals' holding that respondent had stated a cause of action under § 704(a), and, accordingly, the Court does not address that issue. However, the majority holds that the claim under § 1985(3) must be dismissed because "deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3)," ante, at 378.
47
Unfortunately, the majority does not explain whether the "right created by Title VII" to which it refers is the right guaranteed to women employees under § 703(a) or the right guaranteed to respondent under § 704(a). Although in stating its view of the issue before the Court, the majority intimates that it is relying on the fact that respondent has a claim directly under § 704(a),4 the reasoning of the majority opinion in no way indicates why the existence of a § 704(a) claim should prevent respondent from seeking to vindicate under § 1985(3) the entirely separate right provided by § 703(a).
48
Clearly, respondent's right under § 704(a)—to be free from retaliation for efforts to aid others asserting Title VII rights is distinct from the Title VII right implicated in his claim under § 1985(3), which is the right of women employees not to be discriminated against on the basis of their sex. Moreover, that respondent in this case is in a position to assert claims under both § 1985(3) and § 704(a) is due solely to the peculiar facts of this case, rather than to any necessary relationship between the two provisions. First, it is of course possible that a person could be injured in the course of a conspiracy to deny § 703(a) rights—as respondent claims under his § 1985(3) cause of action—by some means other than retaliatory discrimination prohibited under § 704(a). Second, § 704(a) itself protects only employees and applicants for employment; others, such as customers or suppliers, retaliated against in the course of a conspiracy to violate § 703(a) are not expressly protected under any provision of Title VII. Indeed, if respondent in this case had been only a director, rather than both a director and an employee, of the Great American Federal Savings and Loan Association, he apparently would not be able to assert a claim under § 704(a).
49
Because the existence of a § 704(a) claim is due entirely to the peculiar facts of this case, I interpret the majority's broad holding that "deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3)" to preclude respondent from suing under § 1985(3) not because he coincidentally has a § 704(a) claim, but because the purpose of the conspiracy allegedly resulting in injury to him was to deny § 703(a) rights.
II
50
The pervasive and essential flaw in the majority's approach to reconciliation of § 1985(3) and Title VII proceeds from its characterization of the former statute as solely a "remedial" provision. It is true that the words "equal privileges and immunities under the laws" in § 1985(3) refer to substantive rights created or guaranteed by other federal law, be it the Constitution or federal statutes other than § 1985(3);5 andin this case it is a conspiracy to deny a substantive right created in § 703(a) of Title VII6 that is part of the basis for respondent's suit under § 1985(3).7 However, § 1985(3), unlike a remedial statute such as 42 U.S.C. § 1983,8 does not merely provide a cause of action for persons deprived of rights elsewhere guaranteed. Because § 1985(3) provides a remedy for any person injured as a result of deprivation of a substantive federal right, it must be seen as itself creating rights in persons other than those to whom the underlying federal right extends.
51
In this case, for instance, respondent is seeking to redress an injury inflicted upon him, which injury is distinct and separate from the injury inflicted upon the female employees whose § 703(a) rights were allegedly denied. The damages available to a person such as respondent suing under § 1985(3) are not dependent upon the amount of injury caused persons deprived of "equal privileges and immunities under the laws," but upon the gravity of the separate injury inflicted upon the person suing. Cf. Sullivan v. Little Hunting Park, 396 U.S. 229, 254-255, 90 S.Ct. 400, 413-414, 24 L.Ed.2d 386 (1969) (Harlan, J., dissenting).
52
In this circumstance—where the § 1985(3) plaintiff is seeking redress for injury caused as a result of the denial of other persons' Title VII rights—it makes no sense to hold that the remedies provided in Title VII are exclusive, for such a § 1985(3) plaintiff has no Title VII remedy.9 It thus can hardly be asserted that allowing this § 1985(3) plaintiff to seek redress of his injury would allow such individual to "completely bypass" the administrative and other "detailed and specific" enforcement mechanisms provided in Title VII, ante, at 375-376.
53
In enacting § 1985(3), Congress specifically contemplated that persons injured by private conspiracies to deny the federal rights of others could redress their injuries, quite apart from any redress by those who are the object of the conspiracy. Griffin v. Breckenridge, 403 U.S. 88, 103, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Nothing in the Court's opinion suggests any warrant for refusal to recognize this cause of action simply because Title VII rights are involved.
III
54
I am also convinced that persons whose own Title VII rights have allegedly been violated retain the separate right to seek redress under § 1985(3). In seeking to accommodate the civil rights statutes enacted in the decade after the Civil War and the civil rights statutes of the recent era, the Court has recognized that the later statutes cannot be said to have impliedly repealed the earlier unless there is an irreconcilable conflict between them. Runyon v. McCrary, 427 U.S. 160, 173 n. 10, 96 S.Ct. 2586, 2595, 49 L.Ed.2d 415 (1976). See Johnson v. Railway Express Agency, 421 U.S. 454, 457-461, 95 S.Ct. 1716, 1718-1720, 44 L.Ed.2d 295 (1975); Sullivan v. Little Hunting Park, supra, at 237-238, 90 S.Ct., at 404-405. Cf. United States v. Johnson, 390 U.S. 563, 88 S.Ct. 1231, 20 L.Ed.2d 132 (1968). Of course, the mere fact of overlap in modes of redressing discrimination does not constitute such irreconcilable conflict. See, e. g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), and cases cited above. Indeed, we have embraced the notion of an implied repeal only when "[i]t would require the suspension of disbelief to ascribe to Congress the design" to allow vindication under a Reconstruction statute of a right also subject to redress under one of the modern Civil Rights Acts. Brown v. GSA, 425 U.S. 820, 833, 96 S.Ct. 1961, 1968, 48 L.Ed.2d 402 (1976).
55
It is clear that such overlap as may exist between Title VII and § 1985(3) occurs only because the latter is directed at a discrete and particularly disfavored form of discrimination, and examination of § 1985(3) shows that it constitutes a compatible and important supplement to the more general prohibition and remedy provided in Title VII. Thus, while it may be that in many cases persons seeking redress under § 1985(3) also have a claim directly under Title VII,10 this is not sufficient reason to deprive those persons of the right to sue for the compensatory and punitive damages to which they are entitled under the post-Civil War statute.11
56
As previously indicated, the majority's willingness to infer a silent repeal of § 1985(3) is based on its view that the provision only gives a remedy to redress deprivations prohibited by other federal law. But this narrow view of § 1985(3) is incorrect even as to § 1985(3) plaintiffs themselves denied Title VII rights. Because only conspiracies to deprive persons of federal rights are subject to redress under § 1985(3), that statute, like 18 U.S.C. § 241,12 is itself a prohibition separate and apart from the prohibitions stated in the underlying provisions of federal law. Moreover, only those deprivations imbued with "invidiously discriminatory motivation" amounting to "class-based . . . animus," Griffin v. Breckenridge, supra, at 102, 91 S.Ct., at 1798, are encompassed by § 1985(3). Viewed in this manner, the right guaranteed by § 1985(3) is the right not to be subjected to an invidious conspiracy to deny other federal rights. This discrete category of deprivations to which § 1985(3) is directed stands in sharp contrast to the broad prohibition on discrimination provided in § 703(a) of Title VII, see n. 2, supra; Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). If, as the majority suggests, it would not recognize an implied repeal of an earlier statute granting a separate but overlapping right, then it should not do so in this case; for respondent has alleged a violation of § 703(a) in a manner independently prohibited by § 1985(3), and under the majority's approach should be allowed to redress both deprivations.
57
Even to the extent that § 1985(3) is properly characterized as a "remedial" statute, there is no reason for holding it inapplicable to redress deprivations of Title VII rights. The majority's apparent assumption that this Court has greater freedom in inferring repeal of remedial statutes than it does of statutes guaranteeing substantive rights has no support in our previous cases. The one instance in which we held Title VII's remedies to be exclusive, Brown v. GSA, supra, was required because of the unmistakable legislative intent that alternative modes of redress were not to be available for a grievance relating to discrimination in federal employment.13 Nor has the majority's right/remedy distinction been enunciated in any of our cases recognizing that Congress did not intend Title VII to pre-empt all "alternative means to redress individual grievances," Runyon v. McCrary, supra, at 174 n. 11, 96 S.Ct., at 2596 n. 11, quoting 118 Cong.Rec. 3371 (1972) (Sen. Williams).14 With respect to remedies as well as with respect to substantive rights, an implied repeal of post-Civil War civil rights legislation occurs only when the legislative scheme of the new statute is incompatible with the old.
58
In this case, Title VII and the remedial aspect of § 1985(3) are entirely consistent, the latter clearly supplementing the former. Title VII operates both to create new federal rights and to provide a general remedy for the denial thereof, while § 1985(3) operates to provide a separate remedy when the manner of denial is especially invidious and threatening.15 The Reconstruction Congress that enacted § 1985(3) believed that an especial danger was posed by persons acting with invidious animus and acting in concert—thereby compounding their power and resources16—to deny federal rights. Because such private conspiratorial action, the paradigm of which was the activity of the Ku Klux Klan, constituted a serious threat to civil rights and civil order,17 it was deemed necessary to "giv[e] a civil action to anybody who shall be injured by [such] conspiracy."18 Thus, though it may be that those who conspire with invidious motivation to violate § 703(a) may in many cases also be reached under Title VII itself, there is no basis for inferring a silent repeal19 of the legislative judgment that the distinct nature of the deprivation to which § 1985(3) is directed warrants separate and more complete relief, and, accordingly, the Court has an obligation to honor the terms of that statute.20
59
Because respondent exhausted his administrative remedies under Title VII, see ante, at 369, there is no need in this case to reach the question whether persons whose Title VII rights have been violated may bring suit directly in federal court alleging an invidious conspiracy to deny those Title VII rights. I note, however, that the majority's desire not to undercut the administrative enforcement scheme, including the encouragement of voluntary conciliation, provided by Title VII would be completely fulfilled by insisting that § 1985(3) plaintiffs exhaust whatever Title VII remedies they may have. The concerns expressed in the majority opinion do not provide a basis for precluding redress altogether under § 1985(3).
1
Title 42 U.S.C. § 1985(3) (1976 ed., Supp. II), Rev.Stat. § 1980, provides:
"If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws; or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
2
42 U.S.C. § 2000e et seq.
3
42 U.S.C. § 2000e-5(f)(1).
4
His complaint also alleged, as a second cause of action, that his discharge was in retaliation for his efforts on behalf of equal employment opportunity, and thus violated § 704(a) of Title VII of the Civil Rights Act of 1964, 78 Stat. 257, as amended, 86 Stat. 109. Section 704(a), as set forth in 42 U.S.C. § 2000e-3(a), reads in relevant part:
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
5
As to the Title VII claim, the District Court held that Novotny was not a proper plaintiff under § 704(a).
6
The Court of Appeals ruled that Novotny had also stated a valid cause of action under Title VII. It held that § 704(a) applies to retaliation for both formal and informal actions taken to advance the purposes of the Act. That holding is not now before this Court.
We note the relative narrowness of the specific issue before the Court. It is unnecessary for us to consider whether a plaintiff would have a cause of action under § 1985(3) where the defendant was not subject to suit under Title VII or a comparable statute. Cf. United States v. Johnson, 390 U.S. 563, 88 S.Ct. 1231, 20 L.Ed.2d 132. Nor do we think it necessary to consider whether § 1985(3) creates a remedy for statutory rights other than those fundamental rights derived from the Constitution. Cf. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338.
7
A partial list of the opinions of this Court that have discussed the Act's legislative history includes Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608-612, 99 S.Ct. 1905, 1911-1913, 60 L.Ed.2d 508 (opinion of the Court); id., at 650-658, 99 S.Ct., at 1932-1936 (WHITE, J., concurring in judgment); id., at 627-640, 99 S.Ct., at 1921-1927 (POWELL, J., concurring); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 665-689, 98 S.Ct. 2018, 2022, 56 L.Ed.2d 611; District of Columbia v. Carter, 409 U.S. 418, 423, 425-429, 93 S.Ct. 602, 606-608, 34 L.Ed.2d 613; Griffin v. Breckenridge, supra, 403 U.S., at 99-101, 91 S.Ct., at 1796-1797; Adickes v. S. H. Kress Co., 398 U.S. 144, 162-166, 90 S.Ct. 1598, 1611-1613, 26 L.Ed.2d 142 (opinion of the Court); id., at 215-231, 90 S.Ct., at 1633-1641 (BRENNAN, J., concurring in part and dissenting in part; Monoe v. Pape, 365 U.S. 167, 172-185, 81 S.Ct. 473, 476-483, 5 L.Ed.2d 492 (opinion of the Court); id., at 194-198, 81 S.Ct., at 487-489 (HARLAN, J., concurring in judgment); id., at 225-236, 81 S.Ct., at 504-510 (FRANKFURTER, J., dissenting).
8
At least two earlier cases in this Court involved causes of action based upon what is now § 1985(3). In Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, the plaintiff had stated claims based on the predecessors of both § 1985(3) and 42 U.S.C. § 1983. The opinions of Mr. Justice Roberts and Mr. Justice Stone both discussed the § 1983 cause of action, but neither discussed the conspiracy claim. In Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497, the plaintiff had also stated claims under the predecessors of both sections. The Court held that no constitutional violation had been shown, and did not consider whether the statutes could have been utilized if such a showing had been made.
9
Mr. Justice Burton dissented, joined by Mr. Justice Black and Mr. Justice Douglas. 341 U.S., at 663, 71 S.Ct., at 942.
10
Mr. Justice Harlan concurred, with one reservation. He found it unnecessary to rely, as the Court did in part, on the defendants' alleged interference with the right of interstate travel. 403 U.S., at 107, 91 S.Ct., at 1801.
11
For the purposes of this question, we assume but certainly do not decide that the directors of a single corporation can form a conspiracy within the meaning of § 1985(3).
12
Title 42 U.S.C. § 2000e-5(b) provides for filing charges with the federal Commission. When a State or locality has a "State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto," filing a complaint with that authority is a predicate for assertion of the federal rights involved. 42 U.S.C. § 2000e-5(c). If a member of the EEOC files a charge alleging violations in such a State or locality, the federal Commission must notify the state or local authority of the charge before taking any action. 42 U.S.C. § 2000e-5(d). Cf. Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679.
13
The statute requires that a complaint be filed with the federal agency within 180 days "after the alleged unlawful employment practice occurred . . . ." If the complainant has filed a charge with a state or local agency, the time is extended to 300 days from the event, or 30 days from the end of state or local proceedings, whichever is sooner. 42 U.S.C. § 2000e-5(e). After a "right to sue" letter issues from the EEOC, the complainant is given another 90 days to bring a civil action in a federal district court. 42 U.S.C. § 2000e-5(f)(1). Cf. United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571.
14
Within 10 days of the Commission's receipt of a complaint, it must notify the employer of the charge, including the date, place, and circumstances of the alleged violation. 42 U.S.C. §§ 2000e-5(b), (e). Only if the Commission has been unable to secure an acceptable conciliation agreement from the employer within 30 days of the filing of the charge may it bring a civil action against the employer. 42 U.S.C. § 2000e-5(f)(1). The complainant must await notice from the Commission of his right to bring a suit. This notice is provided if (1) the Commission dismisses his charge, (2) neither the Commission nor the Attorney General has filed a civil action in his case within 180 days of the filing of the charge, or (3) the Commission has not entered into a conciliation agreement to which he is a party. 42 U.S.C. § 2000e-5(f)(1). Cf. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402.
15
42 U.S.C. §§ 2000e-5(a), (b), (f)(1). See Occidental Life Ins. Co. v. EEOC, supra.
16
Section 706(g) of the Act, as amended, as set forth in 42 U.S.C. § 2000e-5(g), provides:
"If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title."
See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280.
17
See EEOC v. Detroit Edison Co., 515 F.2d 301, 308-310 (CA6 1975); Richerson v. Jones, 551 F.2d 918, 926-928 (CA3 1977); cases collected in id., at 926 n. 13.
18
Title 42 U.S.C. § 2000e-5(k) provides:
"In any action or proceeding under this subchapter 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."
See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648.
Title 42 U.S.C. § 2000e-5(f)(1) provides that "[u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security."
19
See Slack v. Havens, 522 F.2d 1091, 1094 (CA9 1975); EEOC v. Detroit Edison Co., supra, 515 F.2d, at 308; Johnson v. Georgia Highway Express, 417 F.2d 1122, 1125 (CA5 1969); Smith v. Hampton Training School for Nurses, 360 F.2d 577, 581 (CA4 1966) (en banc). See also Albemarle Paper Co. v. Moody, supra, 422 U.S., at 441-445, 95 S.Ct., at 2384-2386 (REHNQUIST, J., concurring).
20
The Court of Appeals for the Third Circuit recently applied a 6-year Pennsylvania statute of limitations to employment discrimination claims brought under 42 U.S.C. § 1981. Davis v. United States Steel Supply, 581 F.2d 335, 337 (1978). See also Johnson v. Railway Express Agency, 421 U.S. 454, 462-466, 95 S.Ct. 1716, 1721-1723, 44 L.Ed.2d 295.
21
Another difference between those cases and this one is to be found in the legislative history of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1968. As the Court noted in Johnson v. Railway Express Agency, supra, and Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, the Civil Rights Acts of 1866 and 1871 were explicitly discussed during the course of the legislative debates on both the Civil Rights Act of 1968 and the 1972 amendments to the 1964 Act, and the view was consistently expressed that the earlier statutes would not be implicitly repealed. See Johnson v. Railway Express Agency, supra, at 457-459, 88 S.Ct., at 2212-2213; Jones v. Alfred H. Mayer Co., supra, at 413-417, 88 S.Ct., at 2189-2191. Specific references were made to §§ 1981 and 1983, but, significantly, no notice appears to have been taken of § 1985. See case below, 584 F.2d 1235, 1252 n. 86.
*
The doubts which will remain after the Court's decision are far from insubstantial. At least one federal court, for example, has held that although Title VII rights may not be asserted through § 1985(3), claims based on § 3 of the Equal Pay Act of 1963, 77 Stat. 56, 29 U.S.C. § 206(d), may be raised in a § 1985(3) suit. Hodgin v. Jefferson, 447 F.Supp. 804, 808 (Md.1978). See also Murphy v. Operating Engineers, Local 18, 99 LRRM 2074, 2124-2126 (ND Ohio 1978) (conspiracy to violate Labor-Management Reporting and Disclosure Act cognizable under § 1985(3)); Local No. 1, ACA v. International Brotherhood of Teamsters, 419 F.Supp. 263, 276 (ED Pa.1976) (same). I would take advantage of the present opportunity to make clear that this Civil War Era statute was intended to provide a remedy only for conspiracies to violate fundamental rights derived from the Constitution.
1
"Standing alone, § 1983 clearly provides no protection for civil rights since, as we have just concluded, § 1983 does not provide any substantive rights at all." Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508.
In that opinion we quoted Senator Edmunds' comment in the 1871 debate:
"All civil suits, as every lawyer understands, which this act authorizes, are not based upon it; they are based upon the right of the citizen. The act only gives a remedy." Cong. Globe, 42d Cong., 1st Sess., 568 (1871).
2
And ante, at 376, the Court states:
"Section 1985(3), by contrast, creates no rights. It is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right—to equal protection of the laws or equal privileges and immunities under the laws—is breached by a conspiracy in the manner defined by the section."
3
In its present form, 42 U.S.C. § 1983 refers to deprivations of "rights, privileges, or immunities secured by the Constitution and laws." The "and laws" language was not included in the original statute enacted in 1871, however; it was added in 1874 when Congress enacted the Revised Statutes of the United States. Rev.Stat. § 1979. No similar change was ever made in § 2 of the 1871 Act, the predecessor to § 1985(3). As originally introduced, that section did provide for criminal and civil actions for deprivations of "rights, privileges, or immunities . . . under the Constitution and laws of the United States." Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871) (emphasis added). "The enormous sweep of the original language led to pressures for amendment." Griffin v. Breckenridge, 403 U.S. 88, 100, 91 S.Ct. 1790, 1797, 29 L.Ed.2d 338, and the present language was substituted. The criminal provisions of § 2 were later declared unconstitutional, United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290, and repealed by Congress. 35 Stat. 1088, 1154. This criminal provision should be distinguished from 18 U.S.C. § 241 relied upon by Mr. Justice WHITE, see post, at 389 n. 5. Section 241 has, since its enactment in 1870, referred explicitly to "the Constitution or laws of the United States." See 16 Stat. 141 (emphasis added).
4
In Griffin, supra, at 105, 91 S.Ct., at 1800, the Court quoted the statement from the Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 27, 27 L.Ed. 835, that the Thirteenth Amendment "is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States." The opinion added:
"We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men." 403 U.S., at 105, 91 S.Ct., at 1800.
With respect to the right of interstate travel, the opinion added:
"Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference." Ibid.
5
I have paraphrased the statutory language "preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws" because that language sheds important light on the meaning of the entire section.
6
As the Court stated in Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161, the Fourteenth Amendment "erects no shield against merely private conduct, however discriminatory or wrongful."
7
Unlike the problem presented by Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415, where I concluded, that it was my duty to follow decisions of this Court which in my judgment had erroneously construed the actual intent of Congress, this is a case in which I am free to respect my understanding of congressional intent. To do so does not require me to advocate overruling any prior decisions of this Court in favor of a position which would appear to be "a significant step backwards . . . clearly contrary to my understanding of the mores of today." Id., at 191-192, 96 S.Ct., at 2605 (STEVENS, J., concurring). And with respect to the issue which is presented in this case, there is no doubt in my mind that the construction of the statute adopted by the Court of Appeals "would have amazed the legislators who voted for it." Id., at 189, 96 S.Ct., at 2603.
1
Title 42 U.S.C. § 1985(3) (1976 ed., Supp. II) provides in relevant part that when persons who "conspire . . . for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury . . ., against any one or more of the conspirators."
2
42 U.S.C. § 2000e-2(a). This statute 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; or
"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."
3
42 U.S.C. § 2000e-3(a). This statute provides:
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
4
See ante, at 372 ("The primary question in the present case, therefore, is whether a person injured by a conspiracy to violate § 704(a) of Title VII of the Civil Rights Act of 1964 is deprived of 'the equal protection of the laws, or of equal privileges and immunities under the laws' within the meaning of § 1985(3)"). See also ante, at 377 ("The only question here, therefore, is whether [the right Novotny claims under § 704(a)] may be asserted within the remedial framework of § 1985(3)"). (Emphasis deleted.)
5
The majority opinion does not reach the issue whether § 1985(3) encompasses federal statutory rights other than those proceeding in "fundamental" fashion from the Constitution itself. I am not certain in what manner the Court conceives of sex discrimination by private parties to proceed from explicit constitutional guarantees. In any event, I need not pursue this issue because I think it clear that § 1985(3) encompasses all rights guaranteed in federal statutes as well as rights guaranteed directly by the Constitution. As originally introduced, § 2 of the Civil Rights Act of 1871, 17 Stat. 13, encompassed "rights, privileges, or immunities . . . under the Constitution and laws of the United States." Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871). The substitution of the terms "the equal protection of the laws" and "equal privileges and immunities under the laws," see n. 1, supra, did not limit the scope of the rights protected but added a requirement of certain "class-based, invidiously discriminatory animus behind the conspirators' action," Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).
We have repeatedly held that 18 U.S.C. § 241 (derived from § 6 of the Civil Rights Act of 1870, 16 Stat. 141), which is the "closest remaining criminal analogue to § 1985(3)," Griffin v. Breckenridge, supra, at 98, 91 S.Ct., at 1796, encompasses all federal statutory rights. See United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673 (1884); In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895); United States v. Mosley, 238 U.S. 383, 387-388, 35 S.Ct. 904, 905, 59 L.Ed. 1355 (1915); United States v. Price, 383 U.S. 787, 800, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966); United States v. Johnson, 390 U.S. 563, 565-566, 88 S.Ct. 1231, 1233, 20 L.Ed.2d 132 (1968). Similarly, we have stated that 42 U.S.C. § 1983, derived from § 1 of the 1871 Civil Rights Act, encompasses federal statutory as well as constitutional rights. Edelman v. Jordan, 415 U.S. 651, 675, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). See generally Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 646, 99 S.Ct. 1905, 1930, 60 L.Ed.2d 508 (1979) (WHITE, J., concurring in judgment).
6
Athough Griffin v. Breckenridge, supra, at 102 n. 9, 91 S.Ct., at 1798, did not reach the issue whether discrimination on a basis other than race may be vindicated under § 1985(3), the Court correctly assumes that the answer to this question is "Yes". The statute broadly refers to all privileges and immunities, without any limitation as to the class of persons to whom these rights may be granted. It is clear that sex discrimination may be sufficiently invidious to come within the prohibition of § 1985(3), see infra, at 392. See generally Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Mathews v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651 (1976).
7
This is analogous to United States v. Johnson, supra, where the basis for a prosecution under 18 U.S.C. § 241 was a conspiracy to deny the substantive right to equality in public accommodations guaranteed under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a.
8
See Chapman v. Houston Welfare Rights Organization, 441 U.S., at 602, 99 S.Ct., at 1908; id., at 623, 99 S.Ct., at 1919 (POWELL, J., concurring); id., at 646, 99 S.Ct., at 1930 (WHITE, J., concurring in judgment); id., at 672, 99 S.Ct., at 1944 (STEWART, J., dissenting).
9
Section 706(b) of Title VII, 42 U.S.C. § 2000e-5(b), contemplates suit only "on or behalf of . . . person[s] . . . aggrieved" under § 703 or § 704.
10
It is, of course, theoretically possible that an individual could be injured by a conspiracy to violate his Title VII rights even though that conspiracy was never brought to fruition and thus there was no violation of Title VII itself.
11
Title VII authorizes only equitable relief, including backpay for a period not to exceed two years. See § 706(g), 42 U.S.C. § 2000e-5(g).
12
See nn. 5, 7, supra.
13
The Court asserts, ante, at 378, that its holding is required for "the same basic reasons that underlay the Court's decision in Brown v. General Services Administration," as reinforced by the consideration that § 1985(3) is assertedly purely remedial. But the majority opinion utterly fails to explain in what way the basis for the decision in Brown —clear congressional intent—is applicable in this case. Brown concerned the peculiar legislative context in which the extension of Title VII to federal employment was enacted, stressing that Congress was under the impression that there was at that time (1972) no other effective judicial remedy for federal discriminatory action. By contrast, this case concerns private discrimination which, of course, has been encompassed by Title VII since the original enactment of the Civil Rights Act in 1964. Brown expressly reaffirmed the conclusion of our previous cases that with respect to private employment, "the explicit legislative history of the 1964 Act . . . ' "manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes," ' " Brown v. GSA, 425 U.S., at 833, 96 S.Ct., at 1968, quoting Johnson v. Railway Express Agency, 421 U.S. 454, 459, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975); Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974).
14
See cases cited in n. 13, supra; Runyon v. McCrary, 427 U.S., at 174-175, 96 S.Ct., at 2596.
15
Because § 1985(3) refers to all federal rights, it is irrelevant that the particular right sought to be vindicated thereunder was not in existence at the time the cause of action was enacted. Cf. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970) (cause of action under § 1983 to vindicate right under subsequently enacted statute); United States v. Johnson, 390 U.S. 563, 88 S.Ct. 1231, 20 L.Ed.2d 132 (1968) (prosecution under 18 U.S.C. § 241 for violation of subsequently enacted statute); see also United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673 (1884).
16
Cf. Callanan v. United States, 364 U.S. 587, 593-594, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961); Krulewitch v. United States, 336 U.S. 440, 448-449, 69 S.Ct. 716, 720-721, 93 L.Ed. 790 (1949) (Jackson, J., concurring); Pinkerton v. United States, 328 U.S. 640, 654, 66 S.Ct. 1180, 1187, 90 L.Ed. 1489 (1946).
17
See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 665, and n. 11, 98 S.Ct. 2018, 2022, 56 L.Ed.2d 611 (1978); Griffin v. Breckenridge, 403 U.S., at 99-102, 91 S.Ct., at 1798.
18
Cong.Globe, 42d Cong., 1st Sess., 568 (1871) (Sen. Edmunds). The passage from which this remark is excerpted is also instructive:
"The second section, it will be observed, only provides for the punishment of a conspiracy. It does not provide for the punishment of any act done in pursuance of the conspiracy, but only a conspiracy to deprive citizens of the United States, in the various ways named, of the rights which the Constitution and the laws of the United States made pursuant to it give to them; that is to say, conspiracies to overthrow the Government, conspiracies to impede the course of justice, conspiracies to deprive people of the equal protection of the laws, whatever those laws may be. It does not provide, as I say, for any punishment for any act which these conspirators shall do in furtherance of the conspiracy. It punishes the conspiracy alone, leaving the States, if they see fit, to punish the acts and crimes which may be committed in pursuance of the conspiracy. I confess that I thought myself it was desirable, to make the bill complete, to make it completely logical and completely effective, that a section should have been added providing not only for punishing the conspiracy, but providing also in the same way for punishing any act done in pursuance of the conspiracy. This section gives a civil action to anybody who shall be injured by the conspiracy, but does not punish an act done as a crime." Ibid.
19
The majority recognizes that Congress has explicitly noted that Title VII does not pre-empt redress of grievances under 42 U.S.C. § 1981 and 42 U.S.C. § 1983, ante, at 377 n. 21. See H.R.Rep. No. 92-238, p. 19 (June 2, 1971); S.Rep. No. 92-415, p. 24 (Oct. 28, 1971), U.S.Code Cong. & Admin.News 1972, p. 2137. This Court did not resurrect § 1985(3), Griffin v. Breckenridge, supra (June 7, 1971), from its interment under Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), until one week after the House Report was filed; neither Report mentions § 1985(3), nor does the Senate Report mention Griffin.
20
Petitioners argue that neither the Thirteenth Amendment, the Fourteenth Amendment, nor the Commerce Clause grants Congress authority to reach private conspiracies to deny Title VII rights such as are involved in this case. But petitioners do not dispute that the Commerce Clause is the source of authority for the enactment of Title VII, and Congress needs no additional grant of authority to prohibit, and provide a remedy for, invidious conspiracies to deny such rights.
| 12
|
442 U.S. 347
99 S.Ct. 2335
60 L.Ed.2d 943
Cecil D. ANDRUS, Secretary of the Interior, et al., Petitioners,v.SIERRA CLUB et al.
No. 78-625.
Argued April 18, 1979.
Decided June 11, 1979.
Syllabus
Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) requires environmental impact statements (EIS's) to be included in recommendations or reports of federal agencies on "proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." Contending that § 102(2)(C) requires federal agencies to prepare EIS's to accompany appropriation requests, respondents, three organizations with interests in the preservation of the environment, brought suit in Federal District Court against petitioners, the Secretary of the Interior and the Director of the Office of Management and Budget (OMB). Respondents alleged that proposed curtailments in the budget of the National Wildlife Refuge System would significantly affect the quality of the human environment, and hence should have been accompanied by an EIS prepared both by the Department of the Interior's Fish and Wildlife Service, which administers the Refuge System, and by OMB. The District Court granted summary judgment for respondents and ordered petitioners to prepare EIS's on annual proposals for financing the Refuge System. The District Court's holding was modified by the Court of Appeals, which concluded that while § 102(2)(C) has no application to a routine appropriation request for continuance of an ongoing program, an EIS is required when an appropriation request accompanies a proposal for taking new action that significantly changes the status quo, or when the request "ushers in a considered programmatic course following a programmatic review."
Held: Section 102(2)(C) does not require federal agencies to prepare EIS's to accompany appropriation requests. Pp. 355-365.
(a) Appropriation requests, even those which are the result of an agency's "painstaking review" of an ongoing program, are not "proposals for legislation" within the meaning of § 102(2)(C). NEPA makes no distinction between "proposals for legislation" that are the result of "painstaking review," and those that are merely "routine"; and the interpretation of NEPA by the Council on Environmental Quality (CEQ) under its current mandatory regulations which specify that "legislation" does not include appropriation requests, is entitled to substantial deference even though the regulations reverse CEQ's interpretation under earlier advisory guidelines that were in effect at the time of the Court of Appeals' decision. Moreover, CEQ's current interpretation is consistent with the traditional distinction which Congress has drawn between "legislation" and "appropriation," the rules of both Houses prohibiting "legislation" from being added to an appropriation bill. Pp. 356-361.
(b) Nor do appropriation requests constitute "proposals for . . . major Federal actions" for purposes of § 102(2)(C). Appropriation requests do not "propose" federal actions at all, but instead fund actions already proposed. Thus, § 102(2)(C) is best interpreted as applying to those recommendations or reports that actually propose programmatic actions, rather than to those which merely suggest how such actions may be funded. Even if changes in agency programs occur because of budgetary decisions, an EIS at the appropriation stage would only be repetitive of the EIS that must accompany any proposed changes in the agency's programs that would significantly affect the quality of the human environment. Pp. 361-364.
189 U.S.App.D.C. 117, 581 F.2d 895, reversed.
John M. Harmon, Washington, D. C., for petitioners.
James H. Cohen, Washington, D. C., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question for decision is whether § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 853, 42 U.S.C. § 4332(2)(C), requires federal agencies to prepare environmental impact statements (EIS's) to accompany appropriation requests. We hold that it does not.
2
* NEPA sets forth its purposes in bold strokes:
3
"The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation . . . ." 83 Stat. 852, 42 U.S.C. § 4321.1
4
Congress recognized, however, that these desired goals could be incorporated into the everyday functioning of the Federal Government only with great difficulty. See S.Rep.No.91-296, p. 19 (1969). NEPA therefore contains "action-forcing procedures which will help to insure that the policies [of the Act] are implemented." Ibid. See Kleppe v. Sierra Club, 427 U.S. 390, 409, 96 S.Ct. 2718, 2729, 49 L.Ed.2d 576 (1976). Section 102(2)(C) of the Act sets out one of these procedures:
5
"The Congress authorizes and directs that, to the fullest extent possible . . . (2) all agencies of the Federal Government shall—
6
* * * * *
7
"(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
8
"(i) the environmental impact of the proposed action,
9
"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
10
"(iii) alternatives to the proposed action,
11
"(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
12
"(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." 83 Stat. 853, 42 U.S.C. § 4332(2)(C) (emphasis supplied).
13
The thrust of § 102(2)(C) is thus that environmental concerns be integrated into the very process of agency decision-making. The "detailed statement" it requires is the outward sign that environmental values and consequences have been considered during the planning stage of agency actions.2 If environmental concerns are not interwoven into the fabric of agency planning, the "action-forcing" characteristics of § 102(2)(C) would be lost. "In the past, environmental factors have frequently been ignored and omitted from consideration in the early stages of planning . . . . As a result, unless the results of planning are radically revised at the policy level—and this often means the Congress—environmental enhancement opportunities may be foregone and unnecessary degradation incurred." S.Rep.No.91-296, supra, at 20. For this reason the regulations of the Council on Environmental Quality (CEQ) require federal agencies to "integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values . . . ." 43 Fed.Reg. 55992 (1978) (to be codified at 40 CFR § 1501.2).3
14
In 1974, respondents, three organizations with interests in the preservation of the environment,4 brought suit in the Federal District Court for the District of Columbia alleging that § 102(2)(C) requires federal agencies to prepare EIS's5 to accompany their appropriation requests. Respondents named as defendants the Secretary of the Interior and the Director of the Office of Management and Budget (OMB), and alleged that proposed curtailments in the budget of the National Wildlife Refuge System (NWRS), 80 Stat. 927, 16 U.S.C. § 668dd, would "cut back significantly the operations, maintenance, and staffing of units within the System."6 Complaint ¶ 17. The System is administered by the Fish and Wildlife Service of the Department of the Interior, and consists of more than 350 refuges encompassing more than 30 million acres in 49 States. The primary purpose of the NWRS is to provide a national program "for the restoration, preservation, development and management of wildlife and wildlands habitat; for the protection and preservation of endangered or threatened species and their habitat; and for the management of wildlife and wildlands to obtain the maximum benefits from these resources." 50 CFR § 25.11(b) (1978).7 Respondents alleged that the proposed budget curtailments would significantly affect the quality of the human environment,8 and hence should have been accompanied by an EIS prepared both by the Fish and Wildlife Service and by the OMB.9
15
The District Court agreed with respondents' contentions. Relying on provisions of the then applicable CEQ guidelines,10 and on the Department of the Interior's Manual,11 the District Court held that "appropriation requests are 'proposals for legislation' within the meaning of NEPA," and also that "annual proposals for financing the Refuge System are major Federal actions which clearly have a significant effect on the environment." Sierra Club v. Morton, 395 F.Supp. 1187, 1188, 1189 (1975). The District Court granted respondents' motion for summary judgment, and provided declaratory and injunctive relief. It stated that the Department of the Interior and OMB were required "to prepare, consider, and disseminate environmental impact statements on annual proposals for financing the National Wildlife Refuge System."12 App. to Pet. for Cert. 61a.
16
The Court of Appeals for the District of Columbia Circuit modified the holding of the District Court. The Court of Appeals was apprehensive because "[a] rule requiring preparation of an EIS on the annual budget request for virtually every ongoing program would trivialize NEPA." 189 U.S.App.D.C. 117, 125, 581 F.2d 895, 903 (1978). Therefore, the Court of Appeals concluded that § 102(2)(C) required the preparation of an EIS only when an appropriation request accompanies "a 'proposal' for taking new action which significantly changes the status quo," or when "the request for budget approval and appropriations is one that ushers in a considered programmatic course followng a programmatic review." 189 U.S.App.D.C., at 125, 581 F.2d, at 903. Section 102(2)(C) would thus have no application to "a routine request for budget approval and appropriations for continuance and management of an on-going program." 189 U.S.App.D.C., at 125, 581 F.2d, at 903. The Court of Appeals held, however, that there was no need for injunctive relief because the Fish and Wildlife Service had completed during the pendency of the appeal a "Programmatic EIS" that adequately evaluated the environmental consequences for the NWRS of various budgetary alternatives.13 Id., at 126, 581 F.2d, at 904. See United States Fish and Wildlife Service, Final Environmental Statement: Operation of the National Wildlife Refuge System (Nov. 1976).14
17
We granted certiorari, 439 U.S. 1065, 99 S.Ct. 829, 59 L.Ed.2d 30 (1979), and we now reverse.
II
18
NEPA requires EIS's to be included in recommendations or reports on both "proposals for legislation . . . significantly affecting the quality of the human environment" and "proposals for . . . major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). See CEQ regulations, 43 Fed.Reg. 56001 (1978) (to be codified at 40 CFR § 1506.8(a)). Petitioners argue, however, that the requirements of § 102(2)(C) have no application to the budget process. The contrary holding of the Court of Appeals rests on two alternative interpretations of § 102(2)(C). The first is that appropriation requests which are the result of "an agency's painstaking review of an ongoing program," 189 U.S.App.D.C., at 125, 581 F.2d, at 903, are "proposals for legislation" within the meaning of § 102(2)(C). The second is that appropriation requests which are the reflection of "new" agency initiatives constituting "major Federal actions" under NEPA, are themselves "proposals for . . . major Federal actions" for purposes of § 102(2)(C). We hold that neither interpretation is correct.
A.
19
We note initially that NEPA makes no distinction between "proposals for legislation" that are the result of "painstaking review," and those that are merely "routine." When Congress has thus spoken "in the plainest of words," TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2301, 57 L.Ed.2d 117 (1978), we will ordinarily decline to fracture the clear language of a statute, even for the purpose of fashioning from the resulting fragments a rule that "accords with 'common sense and the public weal.' " Id., at 195, 98 S.Ct. at 2302. Therefore, either all appropriation requests constitute "proposals for legislation," or none does.
20
There is no direct evidence in the legislative history of NEPA that enlightens whether Congress intended the phrase "proposals for legislation" to include requests for appropriations. At the time of the Court of Appeals' decision, however, CEQ guidelines provided that § 102(2)(C) applied to "[r]ecommendations or favorable reports relating to legislation including requests for appropriations." 40 CFR § 1500.5(a)(1) (1977).15 At that time CEQ's guidelines were advisory in nature, and were for the purpose of assisting federal agencies in complying with NEPA. § 1500.1(a).
21
In 1977, however, President Carter, in order to create a single set of uniform, mandatory regulations, ordered CEQ, "after consultation with affected agencies," to "[i]ssue regulations to Federal agencies for the implementation of the procedural provisions" of NEPA. Exec. Order No. 11991, 3 CFR 124 (1978). The President ordered the heads of federal agencies to "comply with the regulations issued by the Council . . . ." Ibid. CEQ has since issued these regulations, 43 Fed.Reg. 55978-56007 (1978),16 and they reverse CEQ's prior interpretation of § 102(2)(C). The regulations provide specifically that " '[l]egislation' includes a bill or legislative proposal to Congress . . . but does not include requests for appropriations." 43 Fed.Reg. 56004 (1978) (to be codified at 40 CFR § 1508.17). (Emphasis supplied.) CEQ explained this reversal by noting that, on the basis of "traditional concepts relating to appropriations and the budget cycle, considerations of timing and confidentiality, and other factors, . . . the Council in its experience found that preparation of EISs is ill-suited to the budget preparation process."17 43 Fed.Reg., at 55989. CEQ's interpretation of NEPA is entitled to substantial deference. See Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 1309-1310, 94 S.Ct. 2542, 2547, 41 L.Ed.2d 654 (1974) (Douglas, J., in chambers). The Council was created by NEPA, and charged in that statute with the responsibility "to review and appraise the various programs and activities of the Federal Government in the light of the policy set forth in . . . this Act . . ., and to make recommendations to the President with respect thereto." 83 Stat. 855, 42 U.S.C. § 4344(3).
22
It is true that in the past we have been somewhat less inclined to defer to "administrative guidelines" when they have "conflicted with earlier pronouncements of the agency." General Electric Co. v. Gilbert, 429 U.S. 125, 143, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976). But CEQ's reversal of interpretation occurred during the detailed and comprehensive process, ordered by the President, of transforming advisory guidelines into mandatory regulations applicable to all federal agencies. See American Trucking Assns. v. Atchison, T. & S. F. R. Co., 387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 847 (1967). A mandatory requirement that every federal agency submit EIS's with its appropriation requests raises wholly different and more serious issues "of fair and prudent administration," ibid., than does nonbinding advice. This is particularly true in light of the Court of Appeals' correct observation that "[a] rule requiring preparation of an EIS on the annual budget request for virtually every ongoing program would trivialize NEPA." 189 U.S.App.D.C., at 125, 581 F.2d, at 903. The Court of Appeals accurately noted that such an interpretation of NEPA would be a "reductio ad absurdum . . . . It would be absurd to require an EIS on every decision on the management of federal land, such as fluctuation in the number of forest fire spotters." Id., at 124, 581 F.2d, at 902. Even respondents do not now contend that NEPA should be construed so that all appropriation requests constitute "proposals for legislation." Brief for Respondents 13 n. 6, 55-61.
23
CEQ's interpretation of the phrase "proposals for legislation" is consistent with the traditional distinction which Congress has drawn between "legislation" and "appropriation."18 The rules of both Houses "prohibit 'legislation' from being added to an appropriation bill." L. Fisher, Budget Concepts and Terminology: The Appropriations Phase, in 1 Studies in Taxation, Public Finance and Related Subjects—A Compendium 437 (Fund for Public Policy Research 1977). See Standing Rules of the United States Senate, Rule 16(4) ("No amendment which proposes general legislation shall be received to any general appropriation bill . . ."); Rules of the House of Representatives, 96th Cong., 1st Sess., Rule XXI (2) (1979);19 7 C. Cannon Precedents of the House of Representatives §§ 1172, 1410, 1443, 1445, 1448, 1459, 1463, 1470, 1472 (1935). The distinction is maintained "to assure that program and financial matters are considered independently of one another. This division of labor is intended to enable the Appropriations Committees to concentrate on financial issues and to prevent them from trespassing on substantive legislation." House Budget Committee, Congressional Control of Expenditures 19 (Comm. Print 1977). House and Senate rules thus require a "previous choice of policy . . . before any item of appropriations might be included in a general appropriations bill." United States ex rel. Chapman v. FPC, 345 U.S. 153, 164 n. 5, 73 S.Ct. 609, 616, 97 L.Ed. 918 (1953). Since appropriations therefore "have the limited and specific purpose of providing funds for authorized programs," TVA v. Hill, 437 U.S., at 190, 98 S.Ct., at 2299-2300 and since the "action-forcing" provisions of NEPA are directed precisely at the processes of "planning and . . . decisionmaking," 42 U.S.C. § 4332(2)(A), which are associated with underlying legislation, we conclude that the distinction made by CEQ's regulations is correct and that "proposals for legislation" do not include appropriation requests.
B
24
The Court of Appeals' alternative interpretation of NEPA is that appropriation requests constitute "proposals for . . . major Federal actions."20 But this interpretation distorts the language of the Act, since appropriation requests do not "propose" federal actions at all; they instead fund actions already proposed. Section 102(2)(C) is thus best interpreted as applying to those recommendations or reports that actually propose programmatic actions, rather than to those which merely suggest how such actions may be funded. Any other result would create unnecessary redundancy. For example, if the mere funding of otherwise unaltered agency programs were construed to constitute major federal actions significantly affecting the quality of the human environment, the resulting EIS's would merely recapitulate the EIS's that should have accompanied the initial proposals of the programs. And if an agency program were to be expanded or revised in a manner that constituted major federal action significantly affecting the quality of human environment,21 an EIS would have been required to accompany the underlying programmatic decision.22 An additional EIS at the appropriation stage would add nothing.
25
Even if changes in agency programs occur because of budgetary decisions, an EIS at the appropriation stage would only be repetitive. For example, respondents allege in their complaint that OMB required the Fish and Wildlife Service to decrease its appropriation request for the NWRS, and that this decrease would alter the operation of the NWRS in a manner that would significantly affect the quality of the human environment. See n. 9, supra. But since the Fish and Wildlife Service could respond to OMB's budgetary curtailments in a variety of ways, see United States Fish and Wildlife Service, Final Environmental Statement: Operation of the National Wildlife Refuge System (Nov. 1976), it is impossible to predict whether or how any particular budget cut will in fact significantly affect the quality of the human environment. OMB's determination to cut the Service's budget is not a programmatic proposal, and therefore requiring OMB to include an EIS in its budgetary cuts would be premature. See Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320, 95 S.Ct. 2336, 2355, 45 L.Ed.2d 191 (1975). And since an EIS must be prepared if any of the revisions the Fish and Wildlife Service proposes in its ongoing programs in response to OMB's budget cuts would significantly affect the quality of the human environment, requiring the Fish and Wildlife Service to include an EIS with its revised appropriation request would merely be redundant. Moreover, this redundancy would have the deleterious effect of circumventing and eliminating the careful distinction Congress has maintained between appropriation and legislation. It would flood House and Senate Appropriations Committees with EIS's focused on the policy issues raised by underlying authorization legislation,23 thereby dismantling the "division of labor" so deliberately created by congressional rules.
C
26
We conclude therefore, for the reasons given above, that appropriation requests constitute neither "proposals for legislation" nor "proposals for . . . major Federal actions," and that therefore the procedural requirements of § 102(2)(C) have no application to such requests.24 The judgment of the Court of Appeals is reversed.
27
So ordered.
1
Section 101(b) articulates these purposes with even greater particularity:
"In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may—
"(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
"(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;
"(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
"(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;
"(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and
"(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources." 83 Stat. 852, 42 U.S.C. § 4331(b).
2
Of course, an EIS need not be promulgated unless an agency's planning ripens into a "recommendation or report on proposals for legislation [or] other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). See Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Moreover, although NEPA requires compliance "to the fullest extent possible," we have held that the duty to prepare an EIS must yield before "a clear and unavoidable conflict in statutory authority." Flint Ridge Development Co. v. Scenic Rivers Assn., 426 U.S. 776, 788, 96 S.Ct. 2430, 2438, 49 L.Ed.2d 205 (1976).
3
CEQ regulations state that "[t]he primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in [NEPA] are infused into the on-going programs and actions of the Federal Government. . . . An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with other relevant material to plan actions and make decisions." 43 Fed.Reg. 55994 (1978) (to be codified at 40 CFR § 1502.1).
In Exec. Order No. 11991, President Carter required the CEQ to issue regulations that included procedures "for the early preparation of environmental impact statements." 3 CFR 124 (1978). As a consequence, CEQ regulations provide:
"An agency shall commence preparation of an environmental impact statement as close as possible to the time the agency is developing or is presented with a proposal . . . so that preparation can be completed in time for the final statement to be included in any recommendation or report on the proposal. The statement shall be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made. . . . For instance:
"(a) For projects directly undertaken by Federal agencies the environmental impact statement shall be prepared at the feasibility analysis (go-no go) stage and may be supplemented at a later stage if necessary. . . ." 43 Fed.Reg. 55995 (1978) (to be codified at 40 CFR § 1502.5).
4
Respondents are the Sierra Club, the National Parks and Conservation Association, and the Natural Resources Defense Council, Inc.
5
CEQ regulations define an "environmental impact statement" to mean "a detailed written statement as required by Sec. 102(2)(C) of [NEPA]." 43 Fed.Reg. 56004 (1978) (to be codified at 40 CFR § 1508.11).
6
See United States Fish and Wildlife Service, Final Environmental Statement: Operation of the National Wildlife Refuge System I-8 to I-9 (Nov. 1976).
7
The System is administered according to the provisions of several statutes. The most significant of these are the Fish and Wildlife Coordination Act of 1934, 48 Stat. 401, as amended, 72 Stat. 563, 16 U.S.C. § 661 et seq.; the Fish and Wildlife Act of 1956, 70 Stat. 1119, 16 U.S.C. § 742a et seq.; the Migratory Bird Conservation Act, ch. 257, 45 Stat. 1222, as amended, 16 U.S.C. § 715 et seq.; and the Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C. § 1531 et seq.
8
Respondents brought suit on behalf of themselves, claiming that they had organizational interests in monitoring and publicizing the management of the NWRS, and on behalf of their members, alleging that the latter used the NWRS for recreational and other purposes and would be affected by the proposed budget curtailments.
9
Respondents alleged that OMB had "significantly reduced the Interior Department's request for appropriations for the operation of the National Wildlife Refuge System during fiscal year 1974 and during other years without preparing or considering the environmental-impact statement required by NEPA." Complaint ¶ 25.
Respondents also contended that § 102(2)(B) of NEPA required OMB to develop procedures to assure consideration of environmental factors in the budget process. Section 102(2)(B) requires all federal agencies to "identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations." 83 Stat. 853, 42 U.S.C. § 4332(2)(B).
10
At that time, CEQ was authorized by Exec. Order No. 11514, § 3(h), to issue nonbinding "guidelines to Federal agencies for the preparation of detailed statements on proposals for legislation and other Federal actions affecting the environment." 3 CFR 904 (1966-1970 Comp.). These guidelines stated that the "major Federal actions" to which § 102(2)(C) applied included "[r]ecommendations or favorable reports relating to legislation including requests for appropriations." 40 CFR § 1500.5(a)(1) (1974). See § 1500.3.
11
At that time the Department of the Interior's Manual, following CEQ's proposed guidelines, provided:
"The following criteria are to be used in deciding whether a proposed action requires the preparation of an environmental statement:
"A. Types of Federal actions to be considered include, but are not limited to:
"(1) Recommendations or favorable reports to the Congress relating to legislation, including appropriations." Department of the Interior Manual, § 516.5, 36 Fed.Reg. 19344 (1971).
12
Without additional discussion, the District Court also stated that the Director of OMB was required "to develop formal methods and procedures which will, with respect to [OMB]'s own administrative actions and proposals, identify those agency actions requiring environmental statements to be prepared, considered, and disseminated." App. to Pet. for Cert. 62a. See n. 9, supra.
13
Respondents do not now challenge this holding.
14
The Court of Appeals also affirmed what it took to be the District Court's declaratory relief requiring OMB "to adopt procedures and appropriate regulations to comply with the obligations NEPA imposes on the budget process . . . ." 189 U.S.App.D.C., at 127, 581 F.2d, at 905. See n. 12, supra.
15
CEQ had taken this position from the first draft of its guidelines. CEQ was required by President Nixon to issue guidelines on March 5, 1970. See Exec. Order No. 11514, 3 CFR 902 (1966-1970 Comp.). On April 30, 1970, CEQ promulgated interim guidelines which provided that "major Federal actions" included "[r]ecommendations or reports relating to legislation and appropriations." Council on Environmental Quality, First Annual Report: Environmental Quality 288 (1970). On April 23, 1971, the guidelines were revised to state that "major Federal actions" included "[r]ecommendations or favorable reports relating to legislation including that for appropriations." 36 Fed.Reg. 7724 (1971). On August 1, 1973, the guidelines were once again revised, this time to the form noted by the Court of Appeals. 38 Fed.Reg. 20551 (1973).
Relying on the CEQ guidelines, two prior decisions by Courts of Appeals have both interpreted "proposals for legislation" to include appropriation requests. See Environmental Defense Fund v. TVA, 468 F.2d 1164, 1181 (CA6 1972); Scientists' Institute for Public Information, Inc. v. Atomic Energy Comm'n, 156 U.S.App.D.C. 395, 404, 481 F.2d 1079, 1088 (1973).
16
These regulations become effective July 30, 1979. 43 Fed.Reg. 55978 (1978).
17
The CEQ also noted that "[n]othing in the Council's determination, however, relieves agencies of responsibility to prepare statements when otherwise required on the underlying program or other actions." Id., at 55989.
18
The Congressional Budget Act of 1974 directs the Comptroller General of the United States, "in cooperation with the Secretary of the Treasury, the Director of the Office of Management and Budget, and the Director of the Congressional Budget Office, [to] develop, establish, maintain, and publish standard terminology, definitions, classifications, and codes for Federal fiscal, budgetary, and program-related data and information." 88 Stat. 327, 31 U.S.C. § 1152(a)(1). Pursuant to this statutory authority, the Comptroller General has published definitions distinguishing "authorizing legislation" from "appropriation." Authorizing legislation is defined in the following manner:
"Basic substantive legislation enacted by Congress which sets up or continues the legal operation of a Federal program or agency either indefinitely or for a specific period of time or sanctions a particular type of obligation or expenditure within a program. Such legislation is normally a prerequisite for subsequent appropriations or other kinds of budget authority to be contained in appropriations acts. It may limit the amount of budge authority to be provided subsequently or may authorize the appropriation of 'such sums as may be necessary.' " Comptroller General of the United States, Terms Used in the Budgetary Process 4 (1977).
Appropriation, on the other hand, is defined as:
"An authorization by an act of the Congress that permits Federal agencies to incur obligations and to make payments out of the Treasury for specified purposes. An appropriation usually follows enactment of authorizing legislation. . . . Appropriations do not represent cash actually set aside in the Treasury for purposes specified in the appropriation act; they represent limitations of amounts which agencies may obligate during the time period specified in the respective appropriations acts." Id., at 3.
Congressional enactments employ this distinction between appropriation and legislation. For example, the Budget and Accounting Act requires the President, to include in the proposed budget he submits to Congress
"with respect to each proposal in the Budget for new or additional legislation which would create or expand any function, activity, or authority, in
addition to those functions, activities, and authorities then existing or as then being administered and operated, a tabulation showing—
"(A) the amount proposed in the Budget for appropriation and for expenditure in the ensuing fiscal year on account of such proposal; and
"(B) the estimated appropriation required on account of such proposal in each of the four fiscal years, immediately following that ensuing fiscal year during which such proposal is to be in effect . . . ." As added, 84 Stat. 1169, 31 U.S.C. § 11(a)(12) (emphasis supplied).
See also 18 U.S.C. § 1913; 22 U.S.C. § 2394(c).
The Executive Branch also recognizes the distinction between appropriation and legislation. For example, OMB distinguishes its function "[t]o supervise and control the administration of the budget" from its task of assisting "the President by clearing and coordinating departmental advise on proposed legislation." Requiring Confirmation of Future Appointments of the Director and Deputy Director of the Office of Management and Budget, H.R.Rep. No. 93-697, p. 18 (1973). See Neustadt, Presidency and Legislation: The Growth of Central Clearance, 48 Am.Pol.Sci.Rev. 641 (1954). OMB Circular No. A-19 (1972) establishes OMB's procedures for "legislative coordination and clearance," whereas OMB Circular No. A-11 (1978) sets out OMB's guidelines for the "Preparation and Submission of Budget Estimates." OMB Circular No. A-19, § 6(a), requires each federal agency to "prepare and submit to OMB annually its proposed legislative program for the next session of Congress. These programs must be submitted at the same time as the initial submissions of an agency's annual budget request as required by OMB Circular A-11." OMB Circular A-11, § 13.2, on the other hand, provides:
"If, in addition to the regular appropriation requests, it appears probable that proposals for new legislation may require a further budget request or result in a change in revenues or outlays, a tentative forecast of the supplemental estimate will be set forth separately. . . . Such proposed supplementals must be consistent with items appearing in the agency's legislative program as required by OMB Circular No. A-19 . . . ."
19
L. Deschler, Procedure in the U.S. House of Representatives § 26-1.2 (1977) states that "[l]anguage in an appropriation bill changing existing law is legislation and not in order." Conversely, "[r]estrictions against the inclusion of appropriations in legislative bills are provided for by House rule . . . ." Id., § 25-3.1.
20
CEQ regulations define "major Federal action" in the following manner:
" 'Major Federal action' includes actions with effects that may be major and which are potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly. . . . Actions include the circumstance where the responsible offi-
cials fail to act and that failure to act is reviewable by courts or administrative tribunals under the Administrative Procedure Act or other applicable law as agency action.
"(a) Actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals . . . .
"(b) Federal actions tend to fall within one of the following categories:
"(1) Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.; treaties and international conventions or agreements; formal documents establishing an agency's policies which will result in or substantially alter agency programs.
"(2) Adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of federal resources, upon which future agency actions will be based.
"(3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.
"(4) Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities." 43 Fed.Reg. 56004-56005 (1978) (to be codified at 40 CFR § 1508.18).
21
"[M]ajor Federal actions" include the "expansion or revision of ongoing programs." S.Rep. No. 91-296, p. 20 (1969).
22
For example, if an agency were to seek an appropriation to initiate a major new program that would significantly affect the quality of the human environment, or if it were to decline to ask for funding so as to terminate a program with a similar effect, the agency would have been required to include EIS's in the recommendations or reports on the proposed underlying programmatic decisions.
23
The Court of Appeals held that EIS's need be included in appropriation requests for "major Federal actions" only if major changes that would significantly affect the quality of the human environment are proposed in the underlying programs for which funding is sought. See 189 U.S.App.D.C., at 125, 581 F.2d, at 903. But an appropriation request applies not only to major changes in a federal program, but also to the entire program it is designed to fund. Without appropriations, the underlying program would cease to exist. Therefore, if the existence vel non of that program is a major federal action significantly affecting the quality of the human environment, the Court of Appeals' alternative interpretation of NEPA would require an EIS to be included in the concomitant appropriation request.
It is important to note that CEQ regulations provide that the adjective "major" in the phrase "major Federal actions" "reinforces but does not have a meaning independent of [the adverb] significantly" in the phrase "significantly affecting the quality of the human environment." 43 Fed.Reg. 56004 (1978) (to be codified at 40 CFR § 1508.18). See n. 20, supra. As a consequence, the Court of Appeals' holding that certain appropriation requests are "proposals for . . . major Federal actions" is operationally identical to its holding that certain appropriation requests constitute "proposals for legislation." Both holdings would require EIS's to accompany funding requests for every federal program that significantly affects the quality of the human environment. Thus, not only do both holdings run the same dangers of "trivializing" NEPA, but also the same "traditional concepts relating to appropriations and the budget cycle, considerations of timing and confidentiality," 43 Fed.Reg. 55989 (1978), which led CEQ to distinguish "appropriations" from "legislation," would require appropriations to be distinguished from "proposals for . . . major Federal actions."
24
Because we conclude that § 102(2)(C) has no application to appropriation requests, it is clear that the Court of Appeals was incorrect in requiring OMB "to adopt procedures and appropriate regulations to comply with the obligations NEPA imposes on the budget process . . . ." 189 U.S.App.D.C., at 127, 581 F.2d, at 905. See n. 14, supra.
| 78
|
60 L.Ed.2d 931
99 S.Ct. 2326
442 U.S. 330
Kathleen R. REITER, Petitioner,v.SONOTONE CORPORATION et al.
No. 78-690.
Argued April 25, 1979.
Decided June 11, 1979.
Syllabus
Petitioner brought a class action on behalf of herself and all persons in the United States who purchased hearing aids manufactured by respondents, alleging that, because of antitrust violations committed by respondents, she and the class she seeks to represent have been forced to pay illegally fixed higher prices for the hearing aids and related services they purchased from respondents' retail dealers. Treble damages were sought under § 4 of the Clayton Act, which provides that "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws" may bring suit and recover treble damages. Respondents moved to dismiss the damages claim on the ground that petitioner had not been injured in her "business or property" within the meaning of § 4. The District Court held that under § 4 a retail purchaser is injured in "property" if it can be shown that antitrust violations caused an increase in the price paid for the article purchased; however, it certified the question to the Court of Appeals. The Court of Appeals reversed, holding that retail purchasers of consumer goods and services who allege no injury of a commercial or business nature are not injured in their "business or property" within the meaning of § 4, and that the phrase "business or property" was intended to limit standing to those engaged in commercial ventures.
Held: Consumers who pay a higher price for goods purchased for personal use as a result of antitrust violations sustain an injury in their "property" within the meaning of § 4. Pp. 337-345.
(a) Statutory construction must begin with the language employed by Congress. The word "property" has a naturally broad and inclusive meaning comprehending, in common usage, anything of material value owned or possessed. Congress' use of the disjunctive "or" in the phrase "business or property" indicates "business" was not intended to modify "property," nor was "property" intended to modify "business." Giving the word "property" the independent significance to which it is entitled in this context does not destroy the restrictive significance of the phrase "business or property" as a whole. Pp. 337-339.
(b) Monetary injury, standing alone, may be injury in one's "property" within the meaning of § 4. Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241. Thus, the fact that petitioner was deprived of only money is no reason to conclude that she did not sustain a "property" injury. Pp. 339-340.
(c) Nor does petitioner's status as a "consumer" who purchased goods at retail for personal use change the nature of the injury she suffered or the intrinsic meaning of "property" in § 4. Pp. 340-342.
(d) The legislative history reflects that the treble-damages remedy was designed to protect consumers, and that no one questioned the right of consumers to sue under § 4. Thus, to the extent that § 4's legislative history is relevant, it also supports the conclusion that a consumer deprived of money by reason of anticompetitive conduct is injured in "property" within the meaning of § 4. Pp. 342-344
(e) The fact that allowing class actions such as this may add a significant burden to the federal courts' already overcrowded dockets is an important but not a controlling consideration, since Congress created the § 4 treble-damages remedy precisely for the purpose of encouraging private challenges to antitrust violations. P. 344
(f) Respondents' arguments that the cost of defending consumer class actions will have a potentially ruinous effect on small businesses in particular and will ultimately be paid by consumers, are policy considerations more properly addressed to Congress than to this Court; in any event they cannot govern the reading of the plain language of § 4. Pp. 344-345
579 F.2d 1077, reversed and remanded.
John E. Thomas, St. Paul, Minn., for petitioner.
John H. Shenefield, Washington, D. C., for the United States, as amicus curiae.
Warren R. Spannaus, St. Paul, Minn., for the States of Alabama et al., amicus curiae.
Julian R. Wilheim, Chicago, Ill., and Elliot S. Kaplan, Minneapolis, Minn., for respondents.
[Argument of Counsel from pages 331-333 intentionally omitted]
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to decide whether consumers who pay a higher price for goods purchased for personal use as a result of antitrust violations sustain an injury in their "business or property" within the meaning of § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15.
2
* Petitioner brought a class action on behalf of herself and all persons in the United States who purchased hearing aids manufactured by five corporations, respondents here. Her complaint alleges that respondents have committed a variety of antitrust violations, including vertical and horizontal price fixing.1 Because of these violations, the complaint alleges, petitioner and the class of persons she seeks to represent have been forced to pay illegally fixed higher prices for the hearing aids and related services they purchased from respondents' retail dealers. Treble damages and injunctive relief are sought under §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U.S.C. §§ 15 and 26.
3
Respondents moved for dismissal of the complaint or summary judgment in the District Court. Among other things, respondents argued that Reiter, as a retail purchaser of hearing aids for personal use, lacked standing to sue for treble damages under § 4 of the Clayton Act because she had not been injured in her "business or property" within the meaning of the Act.
4
The District Court held that under § 4 a retail purchaser is injured in "property" if the purchaser can show that antitrust violations caused an increase in the price paid for the article purchased. The District Court relied on Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 396, 27 S.Ct. 65, 66, 51 L.Ed. 241 (1906), and the legislative history of the Clayton Act set forth in 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), indicating that Congress intended to give a § 4 remedy to consumers. 435 F.Supp. 933, 935-938 (Minn.1977).
5
The District Court determined, however, that the respondents had raised a "controlling question of law as to which there is substantial ground for difference of opinion," id., at 938, and accordingly certified the question for interlocutory review under 28 U.S.C. § 1292(b). It then stayed further proceedings in the case and declined to express any opinion on the merits of the other issues raised by respondents' motions or on the certifiability of the class.
6
The Court of Appeals reversed, holding that retail purchasers of consumer goods and services who allege no injury of a commercial or business nature are not injured in their "business or property" within the meaning of § 4. 579 F.2d 1077 (CA 8 1978). Noting the absence of any holdings on this precise issue by this Court or other courts of appeal, the court reasoned that the phrase "business or property" was intended to limit standing to those engaged in commercial ventures. It relied on the legislative history and this Court's statement in Hawaii v. Standard Oil Co., 405 U.S. 251, 264, 92 S.Ct. 885, 892, 31 L.Ed.2d 184 (1972), that "business or property" referred to "commercial interests or enterprises." A contrary holding, the Court of Appeals observed, would add a substantial volume of litigation to the already strained dockets of the federal courts and could be used to exact unfair settlements from retail businesses. Small and medium-sized retailers would be especially hard hit by "gigantic consumer class actions," and granting standing to retail consumers might actually have an anticompetitive impact as a consequence. Accordingly, the Court of Appeals thought "it sensible as a matter of policy and compelled as a matter of law that consumers alleging no injury of a commercial or competitive nature are not injured in their property under section 4 of the Clayton Act." 579 F.2d, at 1087.
7
We granted certiorari, 439 U.S. 1065, 99 S.Ct. 830, 59 L.Ed.2d 30 (1979).2 We reverse.3
II
8
As is true in every case involving the construction of a statute, our starting point must be the language employed by Congress. Section 4 of the Clayton Act, 38 Stat. 731, provides:
9
"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 . . . 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." 15 U.S.C. § 15 (emphasis added).
10
On its face, § 4 contains little in the way of restrictive language. In Pfizer Inc. v. Government of India, 434 U.S. 308, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978), we remarked:
11
" '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, 92 L.Ed. 1328; cf. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 138-139, 88 S.Ct. 1981, 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." Id., at 312, 98 S.Ct., at 587.
12
Similarly here, the word "property" has a naturally broad and inclusive meaning. In its dictionary definitions and in common usage "property" comprehends anything of material value owned or possessed. See, e. g., Webster's Third New International Dictionary 1818 (1961). Money, of course, is a form of property.
13
Respondents protest that, if the reference to "property" in § 4 means "money," the term "business" then becomes superfluous, for every injury in one's business necessarily involves a pecuniary injury. They argue that if Congress wished to permit one who lost only money to bring suit under § 4, it would not have used the restrictive phrase "business or property"; rather, it would have employed more generic language akin to that of § 16, for example, which provides for injunctive relief against any "threatened loss or damage." 15 U.S.C. § 26. Congress plainly intended to exclude some category of injury in choosing the phrase "business or property" for § 4. Only a "commercial interest" gloss, they argue, both gives the phrase the restrictive significance intended for it and at the same time gives independent significance to the word "business" and the word "property." The argument of respondents is straightforward: the phrase "business or property" means "business activity or property related to one's business." Brief for Respondents 11 n. 7.
14
That strained construction would have us ignore the disjunctive "or" and rob the term "property" of its independent and ordinary significance; moreover, it would convert the noun "business" into an adjective. In construing a statute we are obliged to give effect, if possible, to every word Congress used. United States v. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 519-520, 99 L.Ed. 615 (1955). Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not. See FCC v. Pacifica Foundation, 438 U.S. 726, 739-740, 98 S.Ct. 3026, 3035, 57 L.Ed.2d 1073 (1978). Congress' use of the word "or" makes plain that "business" was not intended to modify "property," nor was "property" intended to modify "business."
15
When a commercial enterprise suffers a loss of money it suffers an injury in both its "business" and its "property." But neither term is rendered redundant by recognizing that a consumer not engaged in a "business" enterprise, but rather acquiring goods or services for personal use, is injured in "property" when the price of those goods or services is artificially inflated by reason of the anticompetitive conduct complained of. The phrase "business or property" also retains restrictive significance. It would, for example, exclude personal injuries suffered. E. g., Hamman v. United States, 267 F.Supp. 420, 432 (D.C.Mont.1967). Congress must have intended to exclude some class of injuries by the phrase "business or property." But it taxes the ordinary meaning of common terms to argue, as respondents do, that a consumer's monetary injury arising directly out of a retail purchase is not comprehended by the natural and usual meaning of the phrase "business or property." We simply give the word "property" the independent significance to which it is entitled in this context. A consumer whose money has been diminished by reason of an antitrust violation has been injured "in his . . . property" within the meaning of § 4.
16
Indeed, this Court indicated as much in Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906). There the city alleged that the anticompetitive conduct of the defendants had caused the city to pay more for water pipes purchased for use in the city's water system. The defendants answered that the pecuniary injury resulting from the alleged overcharges did not injure the city in its "business or property" within the meaning of § 4. This Court, without relying on the fact that the city was engaged in a business enterprise, stated:
17
"The city was . . . injured in its property, at least, if not in its business of furnishing water, by being led to pay more than the worth of the pipe. A person whose property is diminished by a payment of money wrongfully induced is injured in his property." 203 U.S., at 396, 27 S.Ct., at 66.
18
The holding of Chattanooga Foundry could well have been grounded on the undisputed fact that the city was engaged in the commercial enterprise of supplying water for a charge and, therefore, engaged in a business. It was not uncommon for both municipalities and private companies to own and operate competing waterworks at the turn of the century. In operating a municipal public utility, the city was in a real sense engaged in the "business of furnishing water" when it purchased the pipe to carry water from the city's reservoirs to its customers. Ibid.
19
Yet, the Court's holding in Chattanooga Foundry was deliberately grounded on the premise that the city had been injured in its "property"—independent of any injury it had sustained in its "business of furnishing water"—because the defendants' antitrust violation caused it to pay a higher price for the pipe than it otherwise would have paid. Ibid. Chattanooga Foundry therefore establishes that monetary injury, standing alone, may be injury in one's "property" within the meaning of § 4. Thus, the fact that petitioner Reiter was deprived of only money, albeit a modest amount, is no reason to conclude that she did not sustain a "property" injury.
20
Nor does her status as a "consumer" change the nature of the injury she suffered or the intrinsic meaning of "property" in § 4. That consumers of retail goods and services have standing to sue under § 4 is implicit in our decision in Goldfarb v. Virginia State Bar, 421 U.S. 773, 780, 782, 95 S.Ct. 2004, 2009-2010, 44 L.Ed.2d 572 (1975). There we held that a bar association was subject to a treble-damages suit brought under § 4 by persons who sought legal services in connection with the purchase of a residence. Furthermore, we have often referred to "consumers" as parties entitled to seek damages under § 4 without intimating that consumers of goods and services purchased for personal rather than commercial use were in any way foreclosed by the statutory language from asserting an injury in their "property." E. g., Pfizer Inc. v. Government of India, 434 U.S., at 313-315, 98 S.Ct., at 587-589; Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S., at 486 n. 10, 97 S.Ct., at 696; Hanover Shoe, Inc. v. United Shoe Machine Corp., 392 U.S. 481, 494, 88 S.Ct. 2224, 2232, 20 L.Ed.2d 1231 (1968); Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 1006, 92 L.Ed. 1328 (1948).
21
Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972), is not to the contrary. There we held that injury to a state's total economy, for which the state sought redress in its parens patriae capacity, was not cognizable under § 4. It is true we noted that the words "business or property" refer to "commercial interests or enterprises," and reasoned that Hawaii could not recover on its claim for damage done to its "general economy" because such injury did not harm Hawaii's "commercial interests." 405 U.S., at 264, 92 S.Ct., at 892.
22
However, the language of an opinion is not always to be parsed as though we were dealing with language of a statute. Use of the phrase "commercial interests or enterprises," read on context, in no sense suggests that only injuries to a business entity are within the ambit of § 4. Respondents ignore the Court's careful use of the disjunctive and the naturally broad meaning of the term "interests" in Hawaii v. Standard Oil Co., supra. The phrase "commercial interests" was used there as a generic reference to the interests of the State of Hawaii as a party to a commercial transaction. This is apparent from Hawaii § explicit reaffirmance of the rule of Chattanooga Foundry and statement that, where injury to a state "occurs in its capacity as a consumer in the marketplace" through a "payment of money wrongfully induced," treble damages are recoverable by a state under the Clayton Act. Hawaii v. Standard Oil Co., supra, at 263 n. 14, 92 S.Ct., at 891. A central premise of our holding in Hawaii was concern over duplicative recoveries. We noted that a "large and ultimately indeterminable part of the injury to the 'general economy' " for which the State sued was "no more than a reflection of injuries to the 'business or property' of consumers" for which, on a proper showing, they could recover in their own right. 405 U.S., at 263-264, 92 S.Ct., at 891-892.
23
Consumers in the United States purchase at retail more than $1.2 trillion in goods and services annually. 1978 Economic Report of the President 257 (Table B-1). It is in the sound commercial interests of the retail purchasers of goods and services to obtain the lowest price possible within the framework of our competitive private enterprise system. The essence of the antitrust laws is to ensure fair price competition in an open market. Here, where petitioner alleges a wrongful deprivation of her money because the price of the hearing aid she bought was artificially inflated by reason of respondents' anticompetitive conduct, she has alleged an injury in her "property" under § 4.
24
Nothing in the legislative history of § 4 conflicts with our holding today. Many courts and commentators have observed that the respective legislative histories of § 4 of the Clayton Act and § 7 of the Sherman Act, its predecessor, shed no light on Congress' original understanding of the terms "business or property."4 Nowhere in the legislative record is specific reference made to the intended scope of those terms. Respondents engage in speculation in arguing that the substitution of the terms "business or property" for the broader language originally proposed by Senator Sherman5 was clearly intended to exclude pecuniary injuries suffered by those who purchase goods and services at retail for personal use. None of the subsequent floor debates reflect any such intent. On the contrary, they suggest that Congress designed the Sherman Act as a "consumer welfare prescription." R. Bork, The Antitrust Paradox 66 (1978). Certainly the leading proponents of the legislation perceived the treble-damages remedy of what is now § 4 as a means of protecting consumers from overcharges resulting from price fixing. E. g., 21 Cong.Rec. 2457, 2460, 2558 (1890). Because Congress in 1890 rejected a proposal to allow a group of consumers to bring a collective action as a class, some legislators questioned whether individual consumers would be willing to bring actions for relatively small amounts. See, e. g., id., at 1767-1768, 2569, 2612, 3147-3148, 3150. At no time, however, was the right of a consumer to bring an action for damages questioned.6
25
In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, after examining the legislative history of § 4, we described the Sherman Act as "conceived of primarily as a remedy for '[t]he people of the United States as individuals,' especially consumers," and the treble-damages provision of the Clayton Act as "conceived primarily as 'open[ing] the door of justice to every man . . . and giv[ing] the injured party ample damages for the wrong suffered.' " 429 U.S., at 486 n. 10, 97 S.Ct., at 696 n. 10. Thus, to the extent that the legislative history is relevant, it supports our holding that a consumer deprived of money by reason of allegedly anticompetitive conduct is injured in "property" within the meaning of § 4.7
26
Respondents also argue that allowing class actions to be brought by retail consumers like the petitioner here will add a significant burden to the already crowded dockets of the federal courts. That may well be true but cannot be a controlling consideration here. We must take the statute as we find it. Congress created the treble-damages remedy of § 4 precisely for the purpose of encouraging private challenges to antitrust violations. These private suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations. Indeed, nearly 20 times as many private antitrust actions are currently pending in the federal courts as actions filed by the Department of Justice. Administrative Office of the United States Courts Ann.Rep. 101, Table 28 (1978). To be sure, these private suits impose a heavy litigation burden on the federal courts; it is the clear responsibility of Congress to provide the judicial resources necessary to execute its mandates.
27
Finally, respondents argue that the cost of defending consumer class actions will have a potentially ruinous effect on small businesses in particular and will ultimately be paid by consumers in any event. These are not unimportant considerations, but they are policy considerations more properly addressed to Congress than to this Court. However accurate respondents' arguments may prove to be—and they are not without substance—they cannot govern our reading of the plain language in § 4.
28
District courts must be especially alert to identify frivolous claims brought to extort nuisance settlements; they have broad power and discretion vested in them by Fed.Rule Civ.Proc. 23 with respect to matters involving the certification and management of potentially cumbersome or frivolous class actions. See generally Durham & Dibble, Certification: A Practical Device for Early Screening of Spurious Antitrust Litigation, 1978 B.Y.U.L.Rev. 299. Recognition of the plain meaning of the statutory language "business or property" need not result in administrative chaos, class-action harassment, or "windfall" settlements if the district courts exercise sound discretion and use the tools available.
29
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
30
Reversed and remanded.
31
Mr. Justice BRENNAN took no part in the decision of this case.
32
Mr. Justice REHNQUIST, concurring.
33
I join the Court's opinion and write separately only to point out that the concern expressed by the Court of Appeals that an interpretation of "business or property" in the manner in which the Court interprets it today would "add a substantial volume of litigation to the already strained dockets of the federal courts and could be used to exact unfair settlements from retail businesses," ante, at 336, is by no means an unfounded one. And pronouncements from this Court exhorting district courts to be "especially alert to identify frivolous claims brought to extort nuisance settlements" will not be a complete solution for those courts which are actually on the firing line in this type of litigation. Ante, at 345. But I fully agree that we must take the statute as Congress wrote it, and I also fully agree with the Court's construction of the phrase "business or property." I think that the Court's observation, ante, at 343 n. 6, that "the treble-damages remedy of § 4 took on new practical significance for consumers with the advent of Fed.Rules Civ.Proc. 23" is a miracle of understatement; and in the absence of any jurisdictional limit, there is considerable doubt in my mind whether this type of action is indeed ultimately of primary benefit to consumers themselves, who may recover virtually no monetary damages, as opposed to the attorneys for the class, who stand to obtain handsome rewards for their services. Be that as it may, the problem, if there is one, is for Congress and not for the courts.
1
Specifically, Reiter alleges that respondents violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1 and 2, and § 3 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 14. She claims respondents restricted the territories, customers, and brands of hearing aids offered by their retail dealers, used the customer lists of their retail dealers for their own purposes, prohibited unauthorized retailers from dealing in or repairing their hearing aids, and conspired among themselves and with their retail dealers to fix the retail prices of the hearing aids.
2
Differing views on this issue have been expressed by various courts. See, e. g., Reiter v. Sonotone Corp., 579 F.2d 1077 (CA 8 1978) (case below); Bravman v. Bassett Furniture Industries, 552 F.2d 90, 98-99, and n. 23 (CA3), cert. denied, 434 U.S. 823, 98 S.Ct. 69, 54 L.Ed.2d 80 (1977); Cleary v. Chalk, 159 U.S.App.D.C. 415, 419 n. 17, 488 F.2d 1315, 1319 n. 17 (1973), cert. denied, 416 U.S. 938, 94 S.ct. 1940, 40 L.Ed.2d 289 (1974); Theophil v. Sheller-Globe Corp., 446 F.Supp. 131 (EDNY 1978); Gutierrez v. E. & J. Gallo Winery Co., 425 F.Supp. 1221 (ND Cal.1977), appeal docketed, No. 77-1725 (CA 9).
3
The Court of Appeals expressly noted that Reiter's claim for injunctive relief under § 16 of the Clayton Act was not before it on interlocutory appeal. 579 F.2d, at 1087 n. 19. The court therefore expressed no view as to Reiter's standing to raise this claim. It also expressly refused to decide whether Reiter's claim for treble damages under § 4 was barred by the direct-purchaser rule of Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). 579 F.2d, at 1079 n. 3. Accordingly, these issues are not before us.
4
See, e. g., Hawaii v. Standard Oil Co., 405 U.S. 251, 261, 92 S.Ct. 885, 890, 31 L.Ed.2d 184 (1972); Weinberg v. Federated Department Stores, Inc., 426 F.Supp. 880, 882-883 (ND Cal.1977), appeal docketed, No. 77-1547 (CA 9); M. Forkosch, Antitrust and the Consumer 2-3 (1956); Comment, Closing the Door on Consumer Antitrust Standing, 54 N.Y.U.L.Rev. 237, 242-243, 249-252 (1979). See also 1 P. Areeda & D. Turner, Antitrust Law ¶ 106, pp. 14-16 (1978).
5
As originally introduced, the bill that ultimately became the Sherman Act authorized "any person or corporation injured or damnified by [an unlawful] arrangement, contract, agreement, trust, or combination" to sue for damages thereby sustained. S. 1, 51st Cong., 1st Sess., § 2 (1889).
6
Of course, the treble-damages remedy of § 4 took on new practical significance for consumers with the advent of Fed.Rule Civ.Proc. 23.
7
Although in no sense a controlling consideration, we note that our holding is consistent with the assumption on which Congress enacted the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1394, 15 U.S.C. § 15c et seq. The text and legislative history of this statute make clear that in 1976 Congress believed that consumers have a cause of action under § 4, which the statute authorizes the states to assert in a parens patriae capacity. See e. g., 15 U.S.C. §§ 15c(a)(1), 15c(a)(1)(B)(ii), 15c(b)(2); H.R.Rep.No.94-499, pp. 6, 9 (1975), U.S.Code Cong. & Admin.News, 1976, p. 2572. See also Illinois Brick Co. v. Illinois, 431 U.S., at 734 n. 14, 97 S.Ct., at 2068.
| 78
|
442 U.S. 319
99 S.Ct. 2319
60 L.Ed.2d 920
LO-JI SALES, INC., Petitioner,v.State of NEW YORK.
No. 78-511.
Argued April 16, 1979.
Decided June 11, 1979.
Syllabus
A New York State Police investigator, after purchasing two films from petitioner's "adult" bookstore and after viewing them and concluding that they violated state obscenity laws, took the films to a Town Justice, who also viewed the films. Based on the investigator's affidavit, the justice issued a warrant authorizing the search of the store and the seizure of other copies of the two films. The investigator's affidavit also asserted that "similar" films and printed matter portraying similar activities could be found on the premises and requested that the justice accompanying the investigator in executing the warrant so that the justice might determine independently if any other items at the store were possessed in violation of law and subject to seizure. The justice included in the warrant a recital that authorized the seizure of "[t]he following items which the Court independently [on examination] has determined to be possessed in violation" of law. However, at the time the justice signed the warrant no items were listed or described following this statement. The justice also signed a warrant for the arrest of the store clerk for having sold the two films to the investigator. Thereafter, the justice, the investigator, and nine other law enforcement officials entered the bookstore, arrested the clerk (the only employee present), and advised him of the search warrant; they conducted a search that lasted nearly six hours, covering various areas of the store, and examined and seized numerous films, projectors, and magazines. The seized items were inventoried at a State Police barracks and each item was then listed by the police on the search warrant. Petitioner was charged with obscenity in the second degree. The trial court denied petitioner's pretrial motion to suppress the evidence as having been searched for and seized in violation of the First, Fourth, and Fourteenth Amendments; petitioner then entered a guilty plea. As permitted by New York law, petitioner appealed the denial of the motion to suppress, and the convictions were affirmed.
Held:
1. The Fourth Amendment does not permit the action taken here, where, except for the specification of copies of the two films previously purchased by the investigator, the warrant did not purport to particularly describe the things to be seized but, instead, left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure. The Fourth Amendment does not countenance open-end warrants to be completed while a search is being conducted and items seized or after the seizure has been carried out. Pp.325-326.
2. The Town Justice's presence and participation in the search did not ensure that no items would be seized absent probable cause to believe that they were obscene; nor did his presence provide an immediate adversary hearing on the issue. The justice conducted a generalized search and was not acting as a neutral and detached judicial officer. This procedure is not authorized by Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745. Here, the Town Justice undertook to telescope the processes of the application for a warrant, the issuance of the warrant, and its execution. Pp. 326-328.
3. The actions involved here cannot be justified on the theory that because the items at issue were displayed in areas of the store open to the general public, petitioner had no legitimate expectation of privacy against governmental intrusion and warrantless search. Merely because a retail store invites the public to enter, it does not consent to wholesale searches and seizures that do not conform to Fourth Amendment guarantees. The actions involved cannot be sustained on the ground that petitioner's clerk consented to the sweeping search. After the clerk was under arrest and aware of the presumed authority of the search warrant, his conduct complying with official requests cannot, on this record, be considered voluntary. Pp. 328-329.
Reversed and remanded.
Bernard A. Berkman, Cleveland, Ohio, for petitioner.
Richard L. Parker, Elmira, N. Y., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari on claims that the seizure of magazines, films, and other objects from petitioner's bookstore violated guarantees of the First, Fourth, and Fourteenth Amendments. 439 U.S. 978, 99 S.Ct. 562, 58 L.Ed.2d 649 (1978).
2
* On June 20, 1976, an investigator for the New York State Police purchased two reels of film from petitioner's so-called "adult" bookstore. Upon viewing them, he concluded the films violated New York's obscenity laws. On June 25, he took them to a Town Justice for a determination whether there was reasonable cause to believe the films violated the state obscenity laws so as to justify a warrant to search the seller's store. The Town Justice viewed both films in their entirety, and he apparently concluded they were obscene. Based upon an affidavit of the investigator subscribed before the Town Justice after this viewing, a warrant issued authorizing the search of petitioner's store and the seizure of other copies of the two films exhibited to the Town Justice.
3
The investigator's affidavit also contained an assertion that "similar" films and printed matter portraying similar activities could be found on the premises, and a statement of the affiant's belief that the items were possessed in violation of the obscenity laws. The warrant application requested that the Town Justice accompany the investigator to petitioner's store for the execution of the search warrant. The stated purpose was to allow the Town Justice to determine independently if any other items at the store were possessed in violation of law and subject to seizure. The Town Justice agreed. Accordingly, the warrant also contained a recital that authorized the seizure of "[t]he following items that the Court independently [on examination] has determined to be possessed in violation of Article 235 of the Penal Law . . . ."1 However, at the time the Town Justice signed the warrant there were no items listed or described following this statement. As noted earlier, the only "things to be seized" that were described in the warrant were copies of the two films the state investigator had purchased. Before going to the store, the Town Justice also signed a warrant for the arrest of the clerk who operated the store for having sold the two films to the investigator.
4
The Town Justice and the investigator enlisted three other State Police investigators, three uniformed State Police officers, and three members of the local prosecutor's office—a total of 11 and the search party converged on the bookstore. The store clerk was immediately placed under arrest and advised of the search warrant. He was the only employee present; he was free to continue working in the store to the extent the search permitted, and the store remained open to the public while the party conducted its search mission which was to last nearly six hours.
5
The search began in an area of the store which contained booths in which silent films were shown by coin-operated projectors. The clerk adjusted the machines so that the films could be viewed by the Town Justice without coins; it is disputed whether he volunteered or did so under compulsion of the arrest or the warrant. See infra, at 329. The Town Justice viewed 23 films for two to three minutes each and, satisfied there was probable cause to believe they were obscene, then ordered the films and the projectors seized.
6
The Town Justice next focused on another area containing four coin-operated projectors showing both soundless and sound films. After viewing each film for two to five minutes, again without paying, he ordered them seized along with their projectors.
7
The search party then moved to an area in which books and magazines were on display. The magazines were encased in clear plastic or cellophane wrappers which the Town Justice had two police officers remove prior to his examination of the books. Choosing only magazines that did not contain significant amounts of written material, he spent not less than 10 seconds nor more than a minute looking through each one. When he was satisfied that probable cause existed, he immediately ordered the copy which he had reviewed, along with other copies of the same or "similar" magazines, seized. An investigator wrote down the titles of the items seized. All told, 397 magazines were taken.
8
The final area searched was one in which petitioner displayed films and other items for sale behind a glass enclosed case. When it was announced that each box of film would be opened, the clerk advised that a picture on the outside of the box was representative of what the film showed. Therefore, if satisfied from the picture that there was probable cause to believe the film in the box was obscene, the Town Justice ordered the seizure of all copies of that film. As with the magazines, an investigator wrote down the titles of the films seized, a total of 431 reels.2 Miscellaneous other items, including business records, were also seized, but no issue concerning them is raised here.
9
Throughout the day, two or three marked police cars were parked in front of the store and persons who entered the store were asked to show identification and their names were taken by the police. Not surprisingly, no sales were made during the period the search party was at the store, and no customers or potential customers remained in the store for any appreciable time after becoming aware of the police presence.
10
After the search and seizure was completed, the seized items were taken to a State Police barracks where they were inventoried. Each item was then listed on the search warrant, and late the same night the completed warrant was given to the Town Justice. The warrant, which had consisted of 2 pages when he signed it before the search, by late in the day contained 16 pages. It is clear, therefore, that the particular description of "things to be seized" was entered in the document after the seizure and impoundment of the books and other articles.
11
The items seized formed the basis for a three-count information charging petitioner with obscenity in the second degree under New York law.3 The counts were based upon the three main groups of items seized: the magazines, Count I; the films for sale to the public, Count II; and the films and coin-operated projectors, Count III. Before trial, petitioner moved to suppress all the evidence upon which the three counts were based because it had been searched for and seized in violation of the First, Fourth, and Fourteenth Amendments. The motion was denied. Petitioner then entered a guilty plea to all three counts and was fined $1,000 on each. Accordingly, the obscenity of the magazines and films having been the subject of a judicial confession, there is no issue of obscenity in the case.4 Only the validity of the warrant and the search and seizure of the property are before us.
12
New York permits appeal of a denial of a motion to suppress even after a plea of guilty to the charge. N.Y. Crim. Proc. Law § 710.70(2) (McKinney 1971). Pursuant to this procedure, petitioner appealed and the intermediate appellate court for that judicial district affirmed the convictions. A timely application for leave to appeal to the New York Court of Appeals was denied.
II
13
This search warrant and what followed the entry on petitioner's premises are reminiscent of the general warrant or writ of assistance of the 18th century against which the Fourth Amendment was intended to protect. See Marshall v. Barlow's, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819, 56 L.Ed.2d 305 (1978); Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 509, 13 L.Ed.2d 431 (1965); Marcus v. Search Warrant, 367 U.S. 717, 724, 81 S.Ct. 1708, 1712, 6 L.Ed.2d 1127 (1961). Except for the specification of copies of the two films previously purchased, the warrant did not purport to "PARTICULARLY DESCRIB[E] . . . THE . . . tHINGS to be seized." u.s.const., Amdt. 4. Based on the conclusory statement of the police investigator that other similarly obscene materials would be found at the store, the warrant left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure. The Fourth Amendment does not permit such action. Roaden v. Kentucky, 413 U.S. 496, 502, 93 S.Ct. 2796, 2800, 37 L.Ed.2d 737 (1973); Stanford v. Texas, supra, 379 U.S., at 485, 85 S.Ct., at 511, Marcus v. Search Warrant, supra, 367 U.S., at 732, 81 S.Ct., at 1716. Nor does the Fourth Amendment countenance open-ended warrants, to be completed while a search is being conducted and items seized or after the seizure has been carried out.
14
This search began when the local justice and his party entered the premises. But at that time there was not sufficient probable cause to pursue a search beyond looking for additional copies of the two specified films, assuming the validity of searching even for those. And the record is clear that the search began and progressed pursuant to the sweeping open-ended authorization in the warrant. It was not limited at the outset as a search for other copies of the two "sample" films; it expanded into a more extensive search because other items were found that the local justice deemed illegal. Therefore, we have no occasion to decide whether in this context the "plain view" doctrine might be applicable. See Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971).5 Nor can it reasonably be argued that the search was incident to arrest of the store clerk. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
III
15
We have repeatedly said that a warrant authorized by a neutral and detached judicial officer is "a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer 'engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948)." United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977). See also Coolidge v. New Hampshire, supra, 403 U.S., at 450, 91 S.Ct., at 2029. The State contends that the presence and participation of the Town Justice in the search ensured that no items would be seized absent probable cause to believe they were obscene, and that his presence enabled petitioner to enjoy an immediate adversary hearing on the issue.
16
The Town Justice did not manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure. Coolidge v. New Hampshire, supra, 403 U.S., at 449, 91 S.Ct., at 2029. We need not question the subjective belief of the Town Justice in the propriety of his actions, but the objective facts of record manifest an erosion of whatever neutral and detached posture existed at the outset. He allowed himself to become a member, if not the leader, of the search party which was essentially a police operation. Once in the store, he conducted a generalized search under authority of an invalid warrant; he was not acting as a judicial officer but as an adjunct law enforcement officer. When he ordered an item seized because he believed it was obscene, he instructed the police officers to seize all "similar" items as well, leaving determination of what was "similar" to the officer's discretion. Indeed, he yielded to the State Police even the completion of the general provision of the warrant. Though it would not have validated the warrant in any event, the Town Justice admitted at the hearing to suppress evidence that he could not verify that the inventory prepared by the police and presented to him late that evening accurately reflected what he had ordered seized.
17
We also cannot accept the State's contention that it acted in compliance with Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). There, based on police reports of probable violation of state law, a judge viewed a film in a theater as an ordinary paying patron; on the basis of his observation of the entire performance, he then issued a warrant for the seizure of the particular viewed film as evidence. There was no claim that seizure of the single copy impeded the exhibitor's continued business pending decision on the issue of obscenity. Heller's claim was that not even one of his films could be lawfully seized without a prior adversary hearing. We rejected that claim and held that seizure on the warrant so issued by a neutral judicial officer on probable cause after viewing one film was constitutionally permissible so long as, on request, a prompt adversary hearing was available on the issue of obscenity. "With such safeguards, we do not perceive that an adversary hearing prior to a seizure [of a single sample film] by lawful warrant would materially increase First Amendment protection." Id., at 493, 93 S.Ct. at 2795. We also took pains to point out:
18
"Courts will scrutinize any large-scale seizure of books, films, or other materials presumptively protected under the First Amendment to be certain that the requirements of A Quantity of Books [v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964),] and Marcus [v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961),] are fully met. . . .
19
"But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film." Id., at 491-492, 93 S.Ct. at 2794-2795.
20
In contrast, the local justice here undertook to telescope the processes of the application for a warrant, the issuance of the warrant, and its execution. It is difficult to discern when he was acting as a "neutral and detached" judicial officer and when he was one with the police and prosecutors in the executive seizure, and indeed even whether he thought he was conducting, ex parte, the "prompt" postseizure hearings on obscenity called for by Heller, supra, at 492, 93 S.Ct., at 2794. Heller does not permit the kind of activities revealed by this record.6
IV
21
Perhaps anticipating our disposition of the case, the State raises a different theory from the one advanced in its opposition to the petition for certiorari and on which it had relied in the state courts. The suggestion is that by virtue of its display of the items at issue to the general public in areas of its store open to them, petitioner had no legitimate expectation of privacy against governmental intrusion, see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and that accordingly no warrant was needed. But there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees. See Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966). The Town Justice viewed the films, not as a customer, but without the payment a member of the public would be required to make. Similarly, in examining the books and in the manner of viewing the containers in which the films were packaged for sale, he was not seeing them as a customer would ordinarily see them.
22
Any suggestion that petitioner through its clerk consented to the sweeping search also comes too late. After Lo-Ji's agent was placed under arrest and was aware of the presumed authority of the search warrant, his conduct complying with official requests cannot, on this record, be considered free and voluntary. Any "consent" given in the face of "colorably lawful coercion" cannot validate the illegal acts shown here. Bumper v. North Carolina, 391 U.S. 543, 549-550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). Our society is better able to tolerate the admittedly pornographic business of petitioner than a return to the general warrant era; violations of law must be dealt with within the framework of constitutional guarantees.
23
The judgment of the Appellate Term of the Supreme Court of the State of New York for the Ninth and Tenth Judicial Districts is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
24
Reversed and remanded.
1
New York Penal Law § 235.00 (McKinney Supp. 1978-1979) is the definitional section of the State's obscenity law. Petitioner was later charged with obscenity in the second degree, § 235.05. See n. 3, infra.
2
The State's brief asserts approximately 474 films were taken, but from the inventory filed in the case it appears the number was 431.
3
New York Penal Law § 235.05 (McKinney Supp. 1978-1979) defines obscenity in the second degree as follows:
"A person is guilty of obscenity in the second degree when, knowing its content and character, he:
"1. Promotes, or possesses with intent to promote, any obscene material . . . ."
Section 235.00 of the Penal Law states:
"4. 'Promote' means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same."
4
The clerk arrested at petitioner's store entered a guilty plea to a charge of disorderly conduct for selling the two films to the State Police investigator. He did not appeal.
5
Of course, contraband may be seized without a warrant under the "plain view" doctrine. See, e. g., Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 1624-1635, 10 L.Ed.2d 726 (1963). But we have recognized special constraints upon searches for and seizures of material arguably protected by the First Amendment, e. g., Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Marcus v. Search Warrant, 367 U.S. 717, 731-732, 81 S.Ct. 1708, 1715-1716, 6 L.Ed.2d 1127 (1961); materials normally may not be seized on the basis of alleged obscenity without a warrant.
6
We do not suggest, of course, that a "neutral and detached magistrate," Shadwick v. Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2122, 32 L.Ed.2d 783 (1972), loses his character as such merely because he leaves his regular office in order to make himself readily available to law enforcement officers who may wish to seek the issuance of warrants by him. For example, in Heller, the judge signed the search warrant for the seizure of the film in the theater itself. But as we have just pointed out, Heller cannot control this case where the local Town Justice undertook not merely to issue a warrant, but to participate with the police and prosecutors in its execution.
| 01
|
442 U.S. 500
99 S.Ct. 2445
61 L.Ed.2d 30
Henry HELSTOSKI, Petitioner,v.H. Curtis MEANOR, United States District Judge, et al.
No. 78-546.
Argued March 27, 1979.
Decided June 18, 1979.
Syllabus
Petitioner, then a Member of Congress, was indicted in 1976 for conspiring to solicit and accept, and for soliciting and accepting, bribes in return for being influenced in the performance of official acts, namely, the introduction of certain private bills in the House of Representatives. He moved in District Court to dismiss the indictment on the ground, inter alia, that the indictment violated the Speech or Debate Clause of the Constitution because the grand jury had heard evidence of legislative acts, but the motion was denied. Thereafter, he petitioned the Court of Appeals for the Third Circuit for a writ of mandamus directing the District Court to dismiss the indictment. The court declined to issue the writ, holding that the indictment did not violate the Speech or Debate Clause.
Held: Mandamus was not the appropriate means of challenging the validity of the indictment on the ground that it violated the Speech or Debate Clause. Direct appeal to the Court of Appeals was available and was the proper course. Pp. 505-508.
(a) Once the motion to dismiss the indictment was denied, there was nothing further petitioner could do under the Speech or Debate Clause in the trial court to prevent the trial, and an appeal of the ruling was clearly available. Cf. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651. Pp. 506-507.
(b) The Speech or Debate Clause was designed to protect Congressmen "not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577. Pp.507-508
(c) If a Member of Congress "is to avoid exposure to [being questioned for acts done in either House] and thereby enjoy the full protection of the [Speech or Debate] Clause his . . . challenge to the indictment must be reviewable before . . . exposure [to trial] occurs." Abney, supra, 431 U.S., at 662, 97 S.Ct., at 2042. P. 508
(d) Petitioner cannot be viewed as being penalized for failing to anticipate the decision in Abney, since the controlling law of the Third Circuit was announced at the time of the District Court's order denying dismissal of the indictment, see United States v. DiSilvio, 520 F.2d 247, and the holding in Abney did no more than affirm the correctness of that holding. P. 508.
576 F.2d 511, affirmed.
Morton Stavis, Newark, N. J., for petitioner.
Stanley M. Brand, Washington, D. C., for Thomas P. O'Neill, Jr., Speaker of the House, et al.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question in this case is whether mandamus is an appropriate means of challenging the validity of an indictment of a Member of Congress on the ground that it violates the Speech or Debate Clause of the Constitution.1 The Court of Appeals declined to issue the writ. We affirm.
2
* Petitioner Helstoski served in the United States Congress from 1965 through 1976 as a Representative from New Jersey. In 1974, the Department of Justice began investigating reported political corruption, including allegations that aliens had paid money for the introduction and processing of private bills which would suspend the application of the immigration laws so as to allow them to remain in this country.
3
In June 1976, a grand jury returned a 12-count indictment charging Helstoski and others with various criminal acts. Only the first four counts are involved in this case. The first count charged that Helstoski and others had conspired to violate 18 U.S.C. § 201(c)(1) by accepting money in return for Helstoski's "being influenced in the performance of official acts, to wit: the introduction of private bills in the United States House of Representatives." The charge recited 16 overt acts, 4 of which referred to the actual introduction of private bills; a 5th referred to an agreement to introduce a private bill. The entire conspiracy was charged as a violation of the general conspiracy statute, 18 U.S.C. § 371.
4
Counts II, III, and IV were substantive counts charging violations of 18 U.S.C. §§ 201(c)(1) and (2):
5
"Whoever, being a public official[,] directly or indirectly, corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself or for any other person or entity, in return for:
6
"(1) being influenced in his performance of any official act; or
7
"(2) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
8
* * * * *
9
"Shall be fined . . . or imprisoned." (Emphasis added.) "Public official" and "official act" are defined in 18 U.S.C. § 201:
10
"(a) For the purpose of this section:
11
" 'public official' means Member of Congress . . . ; and
12
* * * * *
13
" 'official act' means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in his official capacity, or in his place of trust or profit."
14
Each count charged that Helstoski, acting through his legislative aide, had solicited money from aliens in return for "being influenced in the performance of official acts, to wit: the introduction of private bills in the United States House of Representatives on behalf of" the aliens. Essentially, the charges against Helstoski parallel those dealt with in United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), and United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972).
15
Each count also charged that Helstoski, again acting through his aide, had accepted a bribe "in return for his being influenced in the performance of official acts, to wit: the introduction of private bills in the United States House of Representatives on behalf of" the aliens. Finally, each count charged that a private bill had been introduced on a particular date.
16
Helstoski neither appeared before nor submitted material to the particular grand jury that returned the indictment. The prosecutor provided that grand jury with transcripts of most, but not all, of the testimony of witnesses, including Helstoski, before eight other grand juries.2 The United States Attorney explained that to avoid any possible prejudice to Helstoski he had not told the ninth grand jury of Helstoski's invocation of his privilege under the Fifth Amendment. Moreover, he sought to avoid any challenge resulting from the fact that the District Judge had appeared before one grand jury to rule on Helstoski's claim of that privilege.
17
Helstoski moved to dismiss the indictment, contending that the grand jury process had been abused and that the indictment violated the Speech or Debate Clause. He supported his allegation of abuse of the grand jury by characterizing the eight grand juries as "discovery tools." The effect, he contended, was to permit the prosecutor to select the information presented to the indicting grand jury and to deprive that grand jury of evidence of the demeanor of witnesses, especially that of Helstoski himself.
18
District Judge Meanor denied the motion after examining a transcript of the evidence presented to the indicting grand jury. He held that there had been no such abuse to justify invalidating the indictment. He found that most of the material not submitted to the indicting grand jury "was either prejudicial to the defendants, or neither inculpating nor exculpating in nature." He also found that the testimony of two grand jury witnesses should have been presented to the indicting grand jury and concluded that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), required that the Government provide Helstoski with transcripts of their testimony. Judge Meanor also held that the Speech or Debate Clause did not require dismissal.
19
Approximately three months later, in June 1977, Helstoski petitioned the Court of Appeals for a writ of mandamus directing the District Court to dismiss the indictment.
20
The Court of Appeals declined to issue the writ of mandamus. 576 F.2d 511 (CA3 1978). It concluded that the indictment in this case was indistinguishable from that in United States v. Brewster, supra, where an indictment was held not to violate the Speech or Debate Clause even though it contained references to legislative acts. The Court of Appeals rejected Helstoski's argument that the indictment was invalid because the grand jury had heard evidence of legislative acts, which he argued was in violation of the Speech or Debate Clause. The court declined to go behind the indictment, holding that it was valid on its face.
21
In seeking reversal here of the Court of Appeals holding, Helstoski argues that the extraordinary remedy of mandamus is appropriate in this case to protect the constitutional command of separation of powers. He contends that the Speech or Debate Clause assigns exclusive jurisdiction over all legislative acts to Congress. The indictment itself, he urges, is a violation of that Clause because it represents an impermissible assertion of jurisdiction over the legislative function by the grand jury and the federal courts. He challenges the validity of the indictment on two grounds. First, the indictment itself refers to legislative acts. Any attempt at restricting the proof at trial, as approved by the Court of Appeals, will amount to an amendment of the indictment, thereby violating a Fifth Amendment right to be tried only on an indictment in precisely the form issued by a grand jury. Second, he contends the Speech or Debate Clause was violated when the grand jury was allowed to consider evidence of his legislative acts notwithstanding that such evidence and testimony was presented by him.
II
22
Almost 100 years ago, this Court explained: "The general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary writ, may not be done with it. It lies only when there is practically no other remedy." Ex parte Rowland, 104 U.S. 604, 617, 26 L.Ed. 861 (1882) (emphasis added). More recently we summarized certain considerations for determining whether the writ should issue:
23
"Among these are that the party seeking issuance of the writ have no other adequate means to attain the relief he desires, and that he satisfy 'the burden of showing that [his] right to issuance of the writ is "clear and indisputa ble." Moreover, it is important to remember that issuance of the writ is in large part a matter of discretion with the court to which the petition is addressed." Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976) (citations omitted).
24
Helstoski contends that his petition for a writ of mandamus should not be governed by the rules which we have developed for assessing mandamus petitions generally. He argues that the writ is especially appropriate for enforcing the commands of the Speech or Debate Clause. We agree that the guarantees of that Clause are vitally important to our system of government and therefore are entitled to be treated by the courts with the sensitivity that such important values require. We are unwilling, however, to accept the contention that mandamus is the appropriate vehicle for assuring protection of the Clause in the circumstances shown here. Helstoski could readily have secured review of the ruling complained of and all objectives now sought, by direct appeal to the Court of Appeals from the District Court order denying his motion to dismiss the indictment.
25
Only recently in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), we held that "pretrial orders rejecting claims of former jeopardy . . . constitute 'final decisions' and thus satisfy the jurisdictional prerequisites of [28 U.S.C.] § 1291." Id., at 662, 97 S.Ct., at 2042. The reasoning undergirding that holding applies with particular force here. The language of the Abney opinion is particularly apt, even though the context was the Double Jeopardy Clause:
26
"[T]here can be no doubt that such orders constitute a complete, formal and, in the trial court, final rejection of a criminal defendant's double jeopardy claim. There are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment's guarantee." Id., at 659, 97 S.Ct., at 2040.
27
This is equally true for a claim that an indictment violates the fundamental guarantees of the Speech or Debate Clause. Once a motion to dismiss is denied, there is nothing the Member can do under that Clause in the trial court to prevent the trial; but it is equally clear an appeal of the District Court ruling was available.
Second, we noted:
28
"[T]he very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i. e., whether or not the accused is guilty of the offense charged. In arguing that the Double Jeopardy Clause of the Fifth Amendment bars his prosecution, the defendant makes no challenge whatsoever to the merits of the charge against him. Nor does he seek suppression of evidence which the Government plans to use in obtaining a conviction. Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him."3 Ibid. (Emphasis added; citations omitted.)
Abney concludes:
29
"[T]he 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. . . . [T]his Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense." Id., at 660-661, 97 S.Ct., at 2041.
30
That characterization of the purpose of the Double Jeopardy Clause echoed this Court's statement in Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967), that the Speech or Debate Clause was designed to protect Congressmen "not only from the consequences of litigation's results but also from the burden of defending themselves."
31
Here, the holding of Abney becomes highly relevant; by analogy, if a Member "is to avoid exposure to [being questioned for acts done in either House] and thereby enjoy the full protection of the Clause, his . . . challenge to the indictment must be reviewable before . . . exposure [to trial] occurs." Abney, supra, 431 U.S., at 662, 97 S.Ct., at 2042.
32
Helstoski argues that he should not be penalized for failing to predict our decision in Abney. But he cannot be viewed as being penalized since the controlling law of the Third Circuit was announced at the time of the District Court order denying dismissal of the indictment, and our holding did no more than affirm the correctness of the law of that Circuit. See United States v. DiSilvio, 520 F.2d 247, 248 n. 2a (CA3), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975). The relevance of the Abney-DiSilvio holdings, read in light of Dombrowski v. Eastland, supra, was predictable. We hold that if Helstoski wished to challenge the District Court's denial of his motion to dismiss the indictment, direct appeal to the Court of Appeals was the proper course under DiSilvio, supra.4
33
Affirmed.
34
Mr. Justice POWELL took no part in the consideration or decision of this case.
35
Mr. Justice BRENNAN, dissenting.
36
In today's decision, the Court professes to "agree that the guarantees of [the Speech or Debate] Clause are vitally important to our system of government and therefore are entitled to be treated by the courts with the sensitivity that such important values require." Ante, at 506. Nonetheless, it refuses to hold mandamus an appropriate vehicle for assuring the protections of the Clause because "Helstoski could readily have secured review of the ruling complained of and all objectives now sought, by direct appeal to the Court of Appeals from the District Court order denying his motion to dismiss the indictment." Ibid.
37
Mr. Helstoski may well be excused if he views the Court's holding as if it were a line out of Joseph Heller's "Catch-22." He cannot utilize mandamus because he should have sought a direct appeal. But he cannot seek a direct appeal, because that avenue is time barred. Ante, at 508 n. 4. Of course, the dilemma could have been short-circuited had Helstoski brought an immediate appeal at the time his motion for dismissal of the indictment was denied. Unfortunately, he could not have known that avenue of relief was available until today—for we have never before held that the denial of a claim that an indictment violates the Speech or Debate Clause is an exception to the longstanding rule forbidding interlocutory appeals.* And, as the Court holds, today it is too late. Values as "vitally important" as those guaranteed by the Speech or Debate Clause are entitled to more sensitive treatment.
1
The Speech or Debate Clause provides that "for any Speech or Debate in either House, they [the Senators and Representatives] shall not be questioned in any other Place." Art. I, § 6.
This case was argued together with No. 78-349, United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12, which concerns the restrictions the Speech or Debate Clause places on the admissibility of evidence at a trial on charges that a former Member of the House accepted money in return for promising to introduce and introducing private bills.
2
The proceedings before the various grand juries are described in United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12.
3
It is true that Helstoski challenges the admissibility of evidence at his trial; that challenge, however, is raised only if the indictment is allowed to stand.
4
If the petition for a writ of mandamus were treated as an appeal it would, of course, have been jurisdictionally out of time. Fed.Rule App.Proc. 4.
*
The Court makes the surprising assertion that Helstoski should have anticipated today's holding on the basis of a footnote in a 1975 Third Circuit opinion dealing with a different issue. (That opinion, like this Court's decision in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), was limited to the double jeopardy issue, Abney was announced far too late to have helped the defendant.) Although I agree with the Court's extension of the Abney principle from double jeopardy claims to those based upon the Speech or Debate Clause, I do not regard the extension as obvious. Nor, apparently, does the Government, as it carefully refrains from endorsing that view. See Brief for United States 92. I certainly would not use it as a basis for penalizing a former Congressman in his assertion of a principle so "vitally important to our system of government." Ante, at 506.
| 78
|
442 U.S. 560
99 S.Ct. 2479
61 L.Ed.2d 82
TOUCHE ROSS & CO., Petitioner,v.Edward S. REDINGTON, etc., et al.
No. 78-309.
Argued March 26, 1979.
Decided June 18, 1979.
Opinion after remand, 2 Cir., 612 F.2d 68.
Syllabus
ccounting firm was retained by a securities brokerage firm (Weis) registered with the Securities and Exchange Commission (SEC) and a member of the New York Stock Exchange (Exchange), and in this capacity audited Weis' books and records and prepared for filing with the SEC the annual reports of financial condition required by § 17(a) of the Securities Exchange Act of 1934 (1934 Act) and implementing regulations. Subsequently, because of Weis' precarious financial condition, respondent Redington was appointed as trustee in the liquidation of Weis' business pursuant to the Securities Investor Protection Act (SIPA). During the liquidation, Weis' cash and securities on hand, as well as a sum of money advanced by respondent Securities Investor Protection Corporation (SIPC) to the trustee under the SIPA, proved to be insufficient to make whole those customers who had left assets or deposits with Weis. The SIPC and the trustee then filed an action for damages against petitioner in District Court, seeking to impose liability upon petitioner by reason of its allegedly improper audit of Weis' financial statements and alleging that because of such improper conduct petitioner breached duties owed to the SIPC, the trustee, and others under the common law, § 17(a), and the regulations, and that this misconduct prevented Weis' true financial condition from becoming known until it was too late to forestall liquidation or to lessen the adverse financial consequences to Weis' customers. The District Court dismissed the complaint, holding that no claim for relief was stated because no private cause of action could be implied from § 17(a). The Court of Appeals reversed, holding that § 17(a) imposes a duty on accountants, that a breach of this duty gives rise to an implied private right of action for damages in favor of a broker-dealer's customers, and that the SIPC and the trustee could assert this implied cause of action on behalf of Weis' customers.
Held: There is no implied private cause of action for damages under § 17(a). Pp. 568-579.
(a) In terms, § 17(a) simply requires broker-dealers to keep such records and file such reports as the SEC may prescribe, and does not purport to create a private cause of action in favor of anyone. The section's intent, evident from its face, is to provide the SEC, the Exchange, and other authorities with a sufficiently early warning to enable them to take appropriate action to protect investors before a broker-dealer's financial collapse, and not by any stretch of its language does the section purport to confer private damages rights or any remedy in the event the regulatory authorities are unsuccessful in achieving their objectives and the broker-dealer becomes insolvent before corrective steps can be taken. Pp. 568-571.
(b) The conclusion that no private right of action is implicit in § 17(a) is reinforced by the fact that the 1934 Act's legislative history is entirely silent on whether or not such a right of action should be available. This conclusion is also supported by the statutory scheme under which other sections of the Act explicitly grant private causes of action. More particularly, a cause of action in § 17(a) should not be implied that is significantly broader than the one granted in § 18(a), which provides the principal express civil remedy for misstatements in reports but limits it to purchasers and sellers of securities. Pp. 571-574.
(c) The inquiry in a case such as this ends when it is determined on the basis of the statutory language and the legislative history that Congress did not intend to create, either expressly or by implication, a private cause of action. Further inquiries as to the "necessity" of implying a private remedy and the proper forum for enforcement of the asserted rights have little relevance to the decision of the case. Pp.575-576
(d) Section 27 and the remedial purposes of the 1934 Act do not furnish a sufficient ground for holding that the federal courts should provide a damages remedy for petitioner's alleged breach of its duties under § 17(a). Section 27 merely grants jurisdiction to federal district courts over violations of the Act and suits to enforce any liability or duty thereunder and provides for venue and service of process. It creates no cause of action of its own force and effect and imposes no liabilities. And generalized references to the "remedial purposes" of the Act do not justify reading a provision "more broadly than its language and the statutory scheme reasonably permit." SEC v. Sloan, 436 U.S. 103, 116, 98 S.Ct. 1702, 1711, 56 L.Ed.2d 148. Pp. 576-578.
2 Cir., 592 F.2d 617, reversed and remanded.
Arnold I. Roth, New York City, for petitioner.
Philip R. Forlenza, New York City, for respondent, Securities Investor Protection Corp.
James B. Kobak, Jr., New York City, for respondent Redington.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Once again, we are called upon to decide whether a private remedy is implicit in a statute not expressly providing one. During this Term alone, we have been asked to undertake this task no fewer than five times in cases in which we have granted certiorari.1 Here we decide whether customers of securities brokerage firms that are required to file certain financial reports with regulatory authorities by § 17(a) of the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 897, as amended, 15 U.S.C. § 78q(a), have an implied cause of action for damages under § 17(a) against accountants who audit such reports, based on misstatements contained in the reports.2
2
* Petitioner Touche Ross & Co. is a firm of certified public accountants. Weis Securities Inc. (Weis), a securities brokerage firm registered as a broker-dealer with the Securities and Exchange Commission (Commission) and a member of the New York Stock Exchange (Exchange), retained Touche Ross to serve as Weis' independent certified public accountant from 1969 to 1973. In this capacity, Touche Ross conducted audits of Weis' books and records and prepared for filing with the Commission the annual reports of financial condition required by § 17(a) of the 1934 Act, 15 U.S.C. § 78q(a), and the rules and regulations adopted thereunder. 17 CFR § 240.17a-5 (1972).3 Touche Ross also prepared for Weis responses to financial questionnaires required by the Exchange of its member firms.
3
This case arises out of the insolvency and liquidation of Weis. In 1973, the Commission and the Exchange learned of Weis' precarious financial condition and of possible violations of the 1934 Act by Weis and its officers. In May 1973, the Commission sought and was granted an injunction barring Weis and five of its officers from conducting business in violation of the 1934 Act.4 At the same time, the Securities Investor Protection Corporation (SIPC), pursuant to statutory authority, applied in the United States District Court for the Southern District of New York for a decree adjudging that Weis' customers were in need of the protection afforded by the Securities Investor Protection Act of 1970 (SIPA), 84 Stat. 1636, 15 U.S.C. § 78aaa et seq.5 The District Court granted the requested decree and appointed respondent Redington (Trustee) to act as trustee in the liquidation of the Weis business under SIPA.
4
During the liquidation, Weis' cash and securities on hand appeared to be insufficient to make whole those customers who had left assets or deposits with Weis. Accordingly, pursuant to SIPA, SIPC advanced the Trustee $14 million to satisfy, up to specified statutory limits, the claims of the approximately 34,000 Weis customers and certain other creditors of Weis. Despite the advance of $14 million by SIPC, there apparently remain several million dollars of unsatisfied customer claims.6
5
In 1976, SIPC and the Trustee filed this action for damages against Touche Ross in the District Court for the Southern District of New York. The "common allegations" of the complaint, which at this stage of the case we must accept as true, aver that certain of Weis' officers conspired to conceal substantial operating losses during its 1972 fiscal year by falsifying financial reports required to be filed with regulatory authorities pursuant to § 17(a) of the 1934 Act. App. 8. SIPC and the Trustee seek to impose liability upon Touche Ross by reason of its allegedly improper audit and certification of the 1972 Weis financial statements and preparation of answers to the Exchange financial questionnaire. Id., at 15-19. The complaint alleges that because of its improper conduct, Touche Ross breached duties that it owed SIPC, the Trustee, and others under the common law, § 17(a) and the regulations thereunder, and that Touche Ross' alleged dereliction prevented Weis' true financial condition from becoming known until it was too late to take remedial action to forestall liquidation or to lessen the adverse financial consequences of such a liquidation to the Weis customers. App. 8-9. The Trustee seeks to recover $51 million on behalf of Weis in its own right and on behalf of the customers of Weis whose property the Trustee was unable to return. SIPC claims $14 million, either as subrogee of Weis' customers whose claims it has paid under SIPA or in its own right. The federal claims are based on § 17(a) of the 1934 Act; the complaint also alleges several state common-law causes of action based on accountants' negligence, breach of contract, and breach of warranty.7
6
The District Court dismissed the complaint, holding that no claim for relief was stated because no private cause of action could be implied from § 17(a). 428 F.Supp. 483 (SDNY 1977).8 A divided panel of the Second Circuit reversed. 592 F.2d 617 (1978). The court first found that § 17(a) imposes a duty on accountants. 592 F.2d, at 621. It next concluded, based on the factors set forth in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), that an accountant's breach of his § 17(a) duty gives rise to an implied private right of action for damages in favor of a broker-dealer's customers, even though it acknowledged that the "legislative history of the section is mute on the issue." 592 F.2d, at 622. The court held that SIPC and the Trustee could assert this implied cause of action on behalf of the Weiss customers.9 We granted certiorari, 439 U.S. 979, 99 S.Ct. 563, 58 L.Ed.2d 649 (1978), and we now reverse.
II
7
The question of the existence of a statutory cause of action is, of course, one of statutory construction. Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979); see National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974) (hereinafter Amtrak ). SIPC's argument in favor of implication of a private right of action based on tort principles, therefore, is entirely misplaced. Brief for Respondent SIPC 22-23. As we recently have emphasized, "the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." Cannon v. University of Chicago, supra, 441 U.S., at 688, 99 S.Ct., at 1953. Instead, our task is limited solely to determining whether Congress intended to create the private right of action asserted by SIPC and the Trustee. And as with any case involving the interpretation of a statute, our analysis must begin with the language of the statute itself. Cannon v. University of Chicago, supra, at 689, 99 S.Ct. at 1953; Teamsters v. Daniel, 439 U.S. 551, 558, 99 S.Ct. 790, 795-796, 58 L.Ed.2d 808 (1979); Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977); Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 24, 97 S.Ct. 926, 940, 51 L.Ed.2d 124 (1977); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976).
8
At the time pertinent to the case before us, § 17(a) read, in relevant part, as follows:
9
"Every national securities exchange, every member thereof, . . . and every broker or dealer registered pursuant to . . . this title, shall make, keep, and preserve for such periods, such accounts, correspondence, . . . and other records, and make such reports, as the Commission by its rules and regulations may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. § 78q(a) (1970 ed.).
10
In terms, § 17(a) simply requires broker-dealers and others to keep such records and file such reports as the Commission may prescribe. It does not, by its terms, purport to create a private cause of action in favor of anyone. It is true that in the past our cases have held that in certain circumstances a private right of action may be implied in a statute not expressly providing one. But in those cases finding such implied private remedies, the statute in question at least prohibited certain conduct or created federal rights in favor of private parties. E. g., Cannon v. University of Chicago, supra (20 U.S.C. § 1681); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (42 U.S.C. § 1981); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971) (15 U.S.C. § 78j(b)); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) (42 U.S.C. § 1982); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) ( 42 U.S.C. § 1973c); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (42 U.S.C. § 1982); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) (15 U.S.C. § 78n(a)). By contrast, § 17(a) neither confers rights on private parties nor proscribes any conduct as unlawful.
11
The intent of § 17(a) is evident from its face. Section 17(a) is like provisions in countless other statutes that simply require certain regulated businesses to keep records and file periodic reports to enable the relevant governmental authorities to perform their regulatory functions. The reports and records provide the regulatory authorities with the necessary information to oversee compliance with and enforce the various statutes and regulations with which they are concerned. In this case, the § 17(a) reports, along with inspections and other information, enable the Commission and the Exchange to ensure compliance with the "net capital rule," the principal regulatory tool by which the Commission and the Exchange monitor the financial health of brokerage firms and protect customers from the risks involved in leaving their cash and securities with broker-dealers.10 The information contained in the § 17(a) reports is intended to provide the Commission, the Exchange, and other authorities with a sufficiently early warning to enable them to take appropriate action to protect investors before the financial collapse of the particular broker-dealer involved. But § 17(a) does not by any stretch of its language purport to confer private damages rights or, indeed, any remedy in the event the regulatory authorities are unsuccessful in achieving their objectives and the broker becomes insolvent before corrective steps can be taken. By its terms, § 17(a) is forward-looking, not retrospective; it seeks to forestall insolvency, not to provide recompense after it has occurred. In short, there is no basis in the language of § 17(a) for inferring that a civil cause of action for damages lay in favor of anyone. Cort v. Ash, 422 U.S., at 79, 95 S.Ct., at 2088.
12
As the Court of Appeals recognized, the legislative history of the 1934 Act is entirely silent on the question whether a private right of action for damages should or should not be available under § 17(a) in the circumstances of this case. 592 F.2d, at 622. SIPC and the Trustee nevertheless argue that because Congress did not express an intent to deny a private cause of action under § 17(a), this Court should infer one. But implying a private right of action on the basis of congressional silence is a hazardous enterprise, at best. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 64, 98 S.Ct. 1670, 1680, 56 L.Ed.2d 106 (1978). And where, as here, the plain language of the provision weighs against implication of a private remedy, the fact that there is no suggestion whatsoever in the legislative history that § 17(a) may give rise to suits for damages reinforces our decision not to find such a right of action implicit within the section. See Cort v. Ash, supra, 422 U.S., at 82-84, 95 S.Ct., at 2089-2091; cf. Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975); Amtrak, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974); T. I. M. E. Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959).11
13
Further justification for our decision not to imply the private remedy that SIPC and the Trustee seek to establish may be found in the statutory scheme of which § 17(a) is a part. First, § 17(a) is flanked by provisions of the 1934 Act that explicitly grant private causes of action. § 16(b), 15 U.S.C. § 78p(b); § 18(a), 15 U.S.C. § 78r(a). Section 9(e) of the 1934 Act also expressly provides a private right of action. 15 U.S.C. § 78i(e). See also § 20, 15 U.S.C. § 78t. Obviously, then, when Congress wished to provide a private damage remedy, it knew how to do so and did so expressly. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734, 95 S.Ct. 1917, 1919, 44 L.Ed.2d 539 (1975); see Amtrak, 414 U.S., at 458, 94 S.Ct., at 693; T. I. M. E. Inc. v. United States, supra, 359 U.S., at 471, 79 S.Ct., at 908.
14
Second, § 18(a) creates a private cause of action against persons, such as accountants, who "make or cause to be made" materially misleading statements in any reports or other documents filed with the Commission, although the cause of action is limited to persons who, in reliance on the statements, purchased or sold a security whose price was affected by the statements.12 15 U.S.C. § 78r(a); see Ernst & Ernst v. Hochfelder, 425 U.S., at 211 n. 31, 96 S.Ct., at 1389 n. 31; Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S., at 736, 95 S.Ct., at 1925. Since SIPC and the Trustee do not allege that the Weis customers purchased or sold securities in reliance on the § 17(a) reports at issue, they cannot sue Touche Ross under § 18(a).13 Instead, their claim is that the Weis customers did not get the enforcement action they would have received if the § 17(a) reports had been accurate.14 SIPC and the Trustee argue that § 18(a) cannot provide the exclusive remedy for misstatements made in § 17(a) reports because the cause of action created by § 18(a) is expressly limited to purchasers and sellers. They assert that Congress could not have intended in § 18(a) to deprive customers, such as those whom they seek to represent, of a cause of action for misstatements contained in § 17(a) reports.
15
There is evidence to support the view that § 18(a) was intended to provide the exclusive remedy for misstatements contained in any reports filed with the Commission, including those filed pursuant to § 17(a).15 Certainly, SIPC and the Trustee have pointed to no evidence of a legislative intent to except § 17(a) reports from § 18(a)'s purview. Cf. Securities Investor Protection Corp., 421 U.S., at 419-420, 95 S.Ct., at 1738; Amtrak, 414 U.S., at 458, 94 S.Ct., at 693. But we need not decide whether Congress expressly intended § 18(a) to provide the exclusive remedy for misstatements contained in § 17(a) reports. For where the principal express civil remedy for misstatements in reports created by Congress contemporaneously with the passage of § 17(a) is by its terms limited to purchasers and sellers of securities, we are extremely reluctant to imply a cause of action in § 17(a) that is significantly broader than the remedy that Congress chose to provide. Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S., at 735-736, 95 S.Ct., at 1925-1926; see Ernst & Ernst v. Hochfelder, supra, 425 U.S., at 210, 96 S.Ct., at 1389; Securities Investor Protection Corp. v. Barbour, supra, 421 U.S., at 421-423, 95 S.Ct., at 1738-1740; Amtrak, supra, 414 U.S., at 458, 94 S.Ct., at 693; cf. T. I. M. E. Inc. v. United States, 359 U.S., at 471, 79 S.Ct., at 908.16 SIPC and the Trustee urge, and the Court of Appeals agreed, that the analysis should not stop here. Relying on the factors set forth in Cort v. Ash, 422 U.S., at 78, 95 S.Ct., at 2088, they assert that we also must consider whether an implied private remedy is necessary to "effectuate the purpose of the section" and whether the cause of action is one traditionally relegated to state law. SIPC and the Trustee contend that implication of a private remedy is essential to the goals of § 17(a) and that enforcement of § 17(a) is properly a matter of federal, not state, concern. Brief for Respondent Redington 30-35; Brief for Respondent SIPC 42-52. We need not reach the merits of the arguments concerning the "necessity" of implying a private remedy and the proper forum for enforcement of the rights asserted by SIPC and the Trustee, for we believe such inquiries have little relevance to the decision of this case. It is true that in Cort v. Ash, the Court set forth four factors that it considered "relevant" in determining whether a private remedy is implicit in a statute not expressly providing one. But the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort —the language and focus of the statute, its legislative history, and its purpose, see 422 U.S., at 78, 95 S.Ct., at 2088—are ones traditionally relied upon in determining legislative intent. Here, the statute by its terms grants no private rights to any identifiable class and proscribes no conduct as unlawful. And the parties as well as the Court of Appeals agree that the legislative history of the 1934 Act simply does not speak to the issue of private remedies under § 17(a). At least in such a case as this, the inquiry ends there: The question whether Congress, either expressly or by implication, intended to create a private right of action, has been definitely answered in the negative.
16
Finally, SIPA and the Trustee argue that our decision in J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), requires implication of a private cause of action under § 17(a). In Borak, the Court found in § 14(a) of the 1934 Act, 15 U.S.C. § 78n(a), an implied cause of action for damages in favor of shareholders for losses resulting from deceptive proxy solicitations in violation of § 14(a). SIPC and the Trustee emphasize language in Borak that discusses the remedial purposes of the 1934 Act and § 27 of the Act, which, inter alia, grants to federal district courts the exclusive jurisdiction of violations of the Act and suits to enforce any liability or duty created by the Act or the rules and regulations thereunder.17 They argue that Touche Ross has breached its duties under § 17(a) and the rules adopted thereunder and that in view of § 27 and of the remedial purposes of the 1934 Act, federal courts should provide a damages remedy for the breach.18
17
The reliance of SIPC and the Trustee on § 27 is misplaced. Section 27 grants jurisdiction to the federal courts and provides for venue and service of process. It creates no cause of action of its own force and effect; it imposes no liabilities. The source of plaintiffs' rights must be found, if at all, in the substantive provisions of the 1934 Act which they seek to enforce, not in the jurisdictional provision. See Securities Investor Protection Corp. v. Barbour, 421 U.S., at 424, 95 S.Ct., at 1740. The Court in Borak found a private cause of action implicit in § 14(a). See Cannon v. University of Chicago, 441 U.S., at 690-693, n. 13, 99 S.Ct., at 1954-1955 n. 13; Piper v. Chris-Craft Industries, Inc., 430 U.S., at 25, 97 S.Ct., at 941; Allen v. State Board of Elections, 393 U.S., at 557, 89 S.Ct., at 827. We do not now question the actual holding of that case, but we decline to read the opinion so broadly that virtually every provision of the securities Acts gives rise to an implied private cause of action. E. g., Piper v. Chris-Craft Industries, Inc., supra.19 The invocation of the "remedial purposes" of the 1934 Act is similarly unavailing. Only last Term, we emphasized that generalized references to the "remedial purposes" of the 1934 Act will not justify reading a provision "more broadly than its language and the statutory scheme reasonably permit." SEC v. Sloan, 436 U.S. 103, 116, 98 S.Ct. 1702, 1711, 56 L.Ed.2d 148 (1978); see Ernst & Ernst v. Hochfelder, 425 U.S., at 200, 96 S.Ct., at 1384. Certainly, the mere fact that § 17(a) was designed to provide protection for brokers' customers does not require the implication of a private damages action in their behalf. Cannon v. University of Chicago, supra, 442 U.S., at 688, and n. 9, 99 S.Ct., at 1953, and n. 9; Securities Investor Protection Corp. v. Barbour, supra, 421 U.S., at 421, 95 S.Ct., at 1739. To the extent our analysis in today's decision differs from that of the Court in Borak, it suffices to say that in a series of cases since Borak we have adhered to a stricter standard for the implication of private causes of action, and we follow that stricter standard today. Cannon v. University of Chicago, supra, at 688-709, 99 S.Ct., at 1953-1964. The ultimate question is one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law.
III
18
SIPC and the Trustee contend that the result we reach sanctions injustice. But even if that were the case, the argument is made in the wrong forum, for we are not at liberty to legislate. If there is to be a federal damages remedy under these circumstances, Congress must provide it. "[I]t is not for us to fill any hiatus Congress has left in this area." Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1446, 10 L.Ed.2d 605 (1963). Obviously, nothing we have said prevents Congress from creating a private right of action on behalf of brokerage firm customers for losses arising from misstatements contained in § 17(a) reports. But if Congress intends those customers to have such a federal right of action, it is well aware of how it may effectuate that intent.
19
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
20
It is so ordered.
21
Mr. Justice POWELL took no part in the consideration or decision of this case.
22
Mr. Justice BRENNAN, concurring.
23
I join the Court's opinion. The Court of Appeals implied a cause of action for damages under § 17(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78q(a), in favor of respondents, who purport to represent customers of a bankrupt brokerage firm, against petitioner account firm, which allegedly injured those customers by improperly preparing and certifying the reports on the brokerage firm required by § 17(a) and the rules promulgated thereunder. Under the tests established in our prior cases, no cause of action should be implied for respondents under § 17(a). Although analyses of the several factors outlined in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), may often overlap, I agree that when, as here, a statute clearly does not "create a federal right in favor of the plaintiff," id., at 78, 95 S.Ct., at 2088, i. e., when the plaintiff is not " 'one of the class for whose especial benefit the statute was enacted,' " ibid., quoting Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed 874 (1916), and when there is also in the legislative history no "indication of legislative intent, explicit or implicit, . . . to create such a remedy," 422 U.S., at 78, 95 S.Ct., at 2088, the remaining two Cort factors cannot by themselves be a basis for implying a right of action.
24
Mr. Justice MARSHALL, dissenting.
25
In determining whether to imply a private cause of action for damages under a statute that does not expressly authorize such a remedy, this Court has considered four factors:
26
"First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted,'—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? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?" Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975) (citations omitted).
27
Applying these factors, I believe respondents are entitled to bring an action against accountants who have allegedly breached duties imposed under § 17(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78q(a).
28
Since respondents seek relief on behalf of brokerage firm customers, the first inquiry is whether those customers are the intended beneficiaries of the regulatory scheme. Under § 17(a), brokers must file such reports "as the [SEC], by rule, prescribes as necessary or appropriate . . . for the protection of investors." 15 U.S.C. § 78q(a)(1) (emphasis added). Cf. J. I. Case Co. v. Borak, 377 U.S. 426, 432, 84 S.Ct. 1555, 1559, 12 L.Ed.2d 423 (1964). Pursuant to this authority, the SEC requires brokers to provide a battery of financial statements, and directs independent accountants to verify the brokers' reports. 17 CFR § 240.17a-5 (1978); see also ante, at 563-564, n. 3. The purpose of these requirements, as the Commission has consistently emphasized, is to enable regulators to "monitor the financial health of brokerage firms and protect customers from the risks involved in leaving their cash and securities with broker-dealers." Ante, at 570.1 In addition, at the time of the events giving rise to this suit, the rules implementing § 17 mandated that brokers disclose to customers whether an accountant's audit had revealed any "material inadequacies" in financial procedures. 37 Fed.Reg. 14608 (1972). Thus, it is clear that brokerage firm customers are the "favored wards" of § 17, 592 F.2d 617, 623 (CA2 1978), and that the initial test of Cort v. Ash is satisfied here.2
29
With respect to the second Cort factor, the legislative history does not explicitly address the availability of a damages remedy under § 17. The majority, however, discerns an intent to deny private remedies from two aspects of the statutory scheme. Because unrelated sections in the 1934 Act expressly grant private rights of action for violation of their terms, the Court suggests that Congress would have made such provision under § 17 had it wished to do so. But as we noted recently in Cannon v. University of Chicago, 441 U.S. 677, 711, 99 S.Ct. 1946, 1965, 60 L.Ed.2d 560 (1979), "that other provisions of a complex statutory scheme create express remedies has not been accepted as a sufficient reason for refusing to imply an otherwise appropriate remedy under a separate section." The Court finds a further indication of congressional intent in the interaction between §§ 17 and 18 of the 1934 Act. Section 18(a), 15 U.S.C. § 78r(a), affords an express remedy for misstatements in reports filed with the Commission, apparently including reports required by § 17, but limits relief to purchasers or sellers of securities whose price was affected by the misstatement. In light of this limitation, the majority reasons, we should not imply a remedy under § 17 which embraces a broader class of plaintiffs. However, § 18 pertains to investors who are injured in the course of securities transactions, while § 17 is concerned exclusively with brokerage firm customers who may be injured by a broker's insolvency. Given this divergence in focus, § 18 does not reflect an intent to restrict the remedies available under § 17. Indeed, since false reports regarding a broker's financial condition would not affect the price of securities held by the broker's customers, § 18 would provide these persons with no remedy at all. I am unwilling to assume that "Congress simultaneously sought to protect a class and deprived [it] of the means of protection." 592 F.2d, at 623.
30
A cause of action for damages here is also consistent with the underlying purposes of the legislative scheme. Because the SEC lacks the resources to audit all the documents that brokers file, it must rely on certification by accountants. See J. I. Case Co. v. Borak, supra, 377 U.S., at 432, 84 S.Ct., at 1559; Allen v. State Board of Elections, 393 U.S. 544, 556, 89 S.Ct. 817, 826, 22 L.Ed.2d 1 (1969); see also 592 F.2d, at 623 n. 12. Implying a private right of action would both facilitate the SEC's enforcement efforts and provide an incentive for accountants to perform their certification functions properly.
31
Finally, enforcement of the 1934 Act's reporting provisions is plainly not a matter of traditional state concern, but rather relates solely to the effectiveness of federal statutory requirements. And, as the Court of Appeals held, since the problems caused by broker insolvencies are national in scope, so too must be the standards governing financial disclosure. Id., at 623.
32
In sum, straightforward application of the four Cort factors compels affirmance of the judgment below. Because the Court misapplies this precedent and disregards the evident purpose of § 17, I respectfully dissent.
1
See, in addition to the instant case, Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980; Transamerica Mortgage Advisers, Inc. v. Lewis, No. 77-1645, cert. granted, 439 U.S. 952, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978).
2
In 1972, the date relevant to the instant case, § 17(a), as set forth in 15 U.S.C. § 78q(a) (1970 ed.), read as follows:
"(a) Every national securities exchange, every member thereof, every broker or dealer who transacts a business in securities through the medium of any such member, every registered securities association, and every broker or dealer registered pursuant to section 78o of this title, shall make, keep, and preserve for such periods, such accounts, correspondence, memoranda, papers, books, and other records, and make such reports, as the Commission by its rules and regulations may prescribe as necessary or appropriate in the public interest or for the protection of investors. Such accounts, correspondence, memoranda, papers, books, and other records shall be subject at any time or from time to time to such reasonable periodic, special, or other examinations by examiners or other representatives of the Commission as the Commission may deem necessary or appropriate in the public interest or for the protection of investors."
Section 17 of the 1934 Act was substantially amended by the Securities Acts Amendments of 1975. § 14, 89 Stat. 137. The present § 17(a)(1) contains essentially the same language as the first sentence of the 1972 version of § 17(a). Compare 15 U.S.C. § 78q(a) (1970 ed.) with 15 U.S.C. § 78q(a)(1) (1976 ed.).
In Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194 n. 13, 96 S.Ct. 1375, 1381 n. 13, 47 L.Ed.2d 668 (1976), we reserved decision on the question whether the respondents in that case could assert a private cause of action against Ernst & Ernst under § 17(a).
3
At the time Touche Ross performed auditing services for Weis, Commission Rule 17a-5 required Weis to file an annual report of its financial condition, including a certificate by an independent public accountant stating "clearly the opinion of the accountant with respect to the financial statement covered by the certificate and the accounting principles and practices reflected therein." 17 CFR §§ 240.17a-5(a), (h) (1972). See also SEC Release No. 3338 (Nov. 28, 1942), X-17A-5. The Rule also required the accountant's certificate to contain a "reasonably comprehensive statement as to the scope of the audit made, including a statement as to whether the accountant reviewed the procedures followed for safeguarding the securities of customers, . . . whether the audit was made in accordance with generally accepted auditing standards applicable in the circumstances; and . . . whether the audit made omitted any procedure deemed necessary by the accountant under the circumstances of the particular case." 17 CFR § 240.17a-5(g)(2) (1972). Nothing in the Rule was to be interpreted to imply authority to omit any procedure the accountant ordinarily would employ in the course of an audit made for the purpose of expressing the opinions required by the Rule. § 240.17a-5(g)(3). Weis was required to attach an oath or affirmation to the report that the financial statements were true and correct. § 240.17a-5(b)(2). The Commission has amended Rule 17a-5 since 1972. See 17 CFR § 240-17a-5 (1978).
4
Some months later, several of Weis' officers were indicted, in part, for a conspiracy to violate and a number of substantive violations of the recordkeeping and reporting regulations adopted by the Commission under § 17(a). United States v. Levine, 73 Crim. 693 (SDNY); see United States v. Solomon, 509 F.2d 863, 865 (CA2 1975). Four of the defendants pleaded guilty to at least one substantive count; the other was found guilty of one substantive count. Ibid.
5
SIPC is a nonprofit organization of securities dealers established by Congress in 1970 in the Securities Investor Protection Act. 15 U.S.C. § 78ccc. SIPC maintains a fund, supported by assessments of its members, which is used to compensate, up to specified limits, customers of brokerage firms who incur losses as a result of broker insolvencies. §§ 78ddd, 78fff(f). If SIPC determines that a member has failed or is in danger of failing to meet its obligations to customers and finds any one of five specified conditions indicating possible financial instability, it may apply to a court of competent jurisdiction for a decree adjudicating that the customers of such member are in need of the protection afforded by the Act. § 78eee(a)(2). SIPA also provides procedures for the liquidation of brokerage firms when required. § 78fff. See generally Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 415-418, 95 S.Ct. 1733, 1736-1738, 44 L.Ed.2d 263 (1975).
6
At the time Weis was liquidated, property on hand permitted the Trustee to return to the Weis customers 67% of the property they should have received. 592 F.2d 617, 620 n. 6 (CA2 1978). Subsequent marshaling of assets and recoveries in other litigation apparently have reduced the amount of the deficit in the fund of customer property. Brief for Respondent Redington 10 n. 5. The Weis customer accounts were protected by SIPA up to a maximum of $50,000 for each customer, except that cash claims were limited to $20,000. 15 U.S.C. § 78fff(f).
7
Approximately one year prior to institution of this action in federal court, SIPC and the Trustee commenced a nearly identical suit against Touche Ross in New York state court. Redington v. Touche Ross & Co., Index No. 13996/76 (N.Y.S.Ct., N.Y. County). The parties, factual allegations, claims, and requests for damages are the same in the state-court action as they are in the federal suit, except that there is no claim in the state-court action under § 17(a). Touche Ross has begun discovery in the state-court action, but otherwise it has remained virtually inactive since the filing of the complaint. 592 F.2d, at 620 n. 7.
8
In the District Court's view, § 17(a) was essentially a bookkeeping provision. By its terms, it did not impose any duty on accountants and did not "create any rights in anybody." 428 F.Supp., at 489, 491. By contrast, the court noted that § 18(a) of the 1934 Act, 15 U.S.C. § 78r(a), did create an express private right of action for damages arising from materially misleading statements in any report filed pursuant to the 1934 Act in favor of any person who, in reliance on the statements, purchased or sold a security whose price was affected by the statements. See n. 12, infra. SIPC and the Trustee could not sue under § 18(a) because neither they nor Weis' customers had bought or sold stock in reliance on the reports Touche Ross had prepared and certified. In view of § 18(a), the court declined to infer a private right of action under § 17(a) broader than the express remedy Congress had created in the very next section of the Act. The court concluded that the subject matter, titles, and juxtaposition of the two sections "strongly suggest a legislative intent that the only private claim for a violation of Section 17 was the claim created in Section 18." 428 F.Supp., at 489.
The District Court also held that since the § 17(a) claim should be dismissed, there was no basis for exercising pendent jurisdiction over the common-law claims, and that there was no other basis for exercising subject-matter jurisdiction over the common-law claims. 428 F.Supp., at 492-493. None of these latter rulings are before us.
9
The court rejected the District Court's conclusion that § 18(a) was intended to be the exclusive remedy for violation of § 17(a). Because, in the court's view, it was plain that brokers' customers were the "favored wards" of § 17(a), it could not agree that "Congress simultaneously sought to protect a class and deprived the class [by virtue of § 18's limiting language] of the means of protection." 592 F.2d, at 623. The court held that the Trustee could assert the § 17(a) action on behalf of the Weis customers as "bailee" of the customer property that he was unable to return, and that SIPC could sue on behalf of the customers as "subrogee" of the customers whose claims it had paid. 592 F.2d, at 624-625. The court also held that the Trustee could not maintain the § 17(a) action in its own right, and it reserved decision on whether "SIPC could ever have a claim for damages other than on behalf of a broker's customers." 592 F.2d, at 624, and n. 13. The court remanded the case to the District Court for consideration of whether to exercise pendent jurisdiction over the state actions in light of the Court of Appeals' ruling on § 17(a) and whether to stay the federal action pending determination of the state action. 592 F.2d, at 619 n. 3, 625. Since we hold that the Court of Appeals wrongly implied a private federal claim under § 17(a), it is unnecessary to reach these other rulings by the Court of Appeals.
10
See, e. g., Study of Unsafe and Unsound Practices of Brokers and Dealers, Report and Recommendations of the Securities and Exchange Commission, H.R.Doc. No. 92-231, pp. 7-8, 15, 22, 24 (1971); Exchange Act Release No. 11497 (1975); National Assn. of Securities Dealers, Inc., 12 S.E.C. 322, 329 n. 9 (1942). The net capital rule requires a broker to maintain a certain minimum ratio of net capital to aggregate indebtedness so that the broker's assets will always be sufficiently liquid to enable him to meet all of his current obligations. See 15 U.S.C. § 78o (c)(3); 17 CFR § 240.15c3-1 (1978).
A number of provisions of the 1934 Act provide the Commission with the authority needed to enforce the reporting requirements of § 17(a) and the rules adopted thereunder. E. g., § 15(b)(4), 15 U.S.C. § 78o (b)(4) (authorizes institution of administrative proceedings and imposition of sanctions against brokers for, inter alia, materially misleading statements in reports or applications required to be filed with the Commission); § 21, 15 U.S.C. § 78u (allows Commission to investigate and enjoin violations and to refer violations to the Attorney General for possible prosecution); § 32, 15 U.S.C. § 78ff (authorizes criminal sanctions for violations of statute and rules and for materially misleading statements in reports or documents required to be filed by the statute or rules); see n. 4, supra.
11
What legislative history there is of § 17(a) simply confirms our belief that § 17(a) was intended solely to be an integral part of a system of preventative reporting and monitoring, and not to provide remedies to customers for losses after liquidation. S.Rep. No. 792, 73d Cong., 2d Sess., 13, 21 (1934); H.R.Rep. No. 1383, 73d Cong., 2d Sess., 25 (1934); Hearing on H.R. 7852 et al. before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 22, 225-226 (1934). See also S.Rep. No. 94-75, p. 119 (1975), U.S.Code Cong. & Admin.News 1975, p. 179 (legislative history of the 1975 amendments to § 17).
12
Section 18(a), as set forth in 15 U.S.C. § 78r(a), provides:
"Liability for misleading statements
"(a) Any person who shall make or cause to be made any statement in any application, report, or document filed pursuant to this chapter or any rule or regulation thereunder or any undertaking contained in a registration statement as provided in subsection (d) of section 78o of this title, which statement was at the time and in the light of the circumstances under which it was made false or misleading with respect to any material fact, shall be liable to any person (not knowing that such statement was false or misleading) who, in reliance upon such statement, shall have purchased or sold a security at a price which was affected by such statement, for damages caused by such reliance, unless the person sued shall prove that he acted in good faith and had no knowledge that such statement was false or misleading. A person seeking to enforce such liability may sue at law or in equity in any court of competent jurisdiction. In any such suit the court may, in its discretion, require an undertaking for the payment of the costs of such suit, and assess reasonable costs, including reasonable attorneys' fees, against either party litigant."
13
In another action arising out of the Weis financial collapse, the District Court has sustained a § 18(a) claim against Touche Ross by a bank that allegedly purchased securities of Weis in reliance upon the § 17(a) reports involved in this case. Exchange National Bank v. Touche Ross & Co., 75 Civ. 916 (SDNY); see 592 F.2d, at 631 n. 5 (Mulligan, J., dissenting). And in a case related to the instant case, the customers of Weis brought a class action against Touche Ross under § 18(a), claiming, inter alia, that Touche Ross violated Commission Rule 17a-5, 17 CFR § 240.17a-5 (1972). The District Court in that case dismissed the complaint on the ground that the plaintiffs did not meet the purchaser-seller requirement of § 18(a) and thus could not maintain an action under that section. Rich v. Touche Ross & Co., 415 F.Supp. 95, 102-104 (S.D.N.Y.1976). We express no view as to the correctness of either of these rulings.
14
For example, the complaint alleges:
"Weis' 1973 forced liquidation under [SIPA] would not have become necessary, and most if not all of Weis' assets and its good will as a going concern could have been preserved by a number of means including [infusion of capital or merger with another firm] . . . . Moreover, if a liquidation of Weis had become necessary as the result of . . . truthful reporting, such liquidation could have occurred at the end of Weis' 1972 fiscal year, when its assets were greater and the aggregate of its liabilities was lower than a year later." App. 8-9.
15
For example, Senator Fletcher in introducing the bill that formed the basis for the 1934 Act, stated that "Section [18] imposes civil liability for false or misleading statements in any of the reports or records required under this act." 78 Cong.Rec. 2271 (1934) (emphasis added). Richard Whitney, President of the New York Stock Exchange, testified at length regarding the 1934 Act proposals. In testimony before the Senate Committee on Banking and Currency, he indicated his understanding that § 18(a) liability extended to "persons transacting business in securities." Hearings on S.Res. 84 et al. before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., pt. 15, p. 6638 (1934).
16
Touche Ross insists that the existence of SIPA also is relevant to the question whether to imply a private right of action in § 17(a). Congress specifically enacted SIPA in 1970 to afford customers of broker-dealers, such as Weis' customers, protection against losses they might incur as a result of the financial failure of their broker-dealer. SIPA established a comprehensive plan of insurance for customers of brokerage firms. See n. 5, supra. And recently, Congress has increased the amounts by which customer accounts are insured to $40,000 for cash claims and $100,000 for cash and securities claims. Securities Investor Protection Act Amendments of 1978, § 9, 92 Stat. 265, 15 U.S.C. § 78fff-3 (1976 ed., Supp.III). Touche Ross asserts that there is no indication in the legislative history of SIPA or its amendments that Congress thought the 1934 Act contained a remedy for customers of insolvent brokerage firms. Brief for Petitioner 62 n. 37; Reply Brief for Petitioner 11-12. It claims that Congress believed it was " 'filling a regulatory void' " when it passed SIPA. Id., at 12; see S.Rep. No. 91-1218, p. 3 (1970). Given the fact that our task is to discern the intent of Congress when it enacted § 17(a) in 1934, we doubt the relevance of SIPA to our inquiry. And even if the 91st Congress had believed that there was an implied right of action under § 17(a), SIPA still would have been needed to protect customers in situation where there was no fraud or where the fraud was committed only by the broker, who, because of its insolvency, would probably be judgment proof. Accordingly, our decision not to infer a right of action in favor of brokerage customers from § 17(a) is not influenced by the existence of SIPA.
17
Section 27, as set forth in 15 U.S.C. § 78aa, provides as follows:
"The district courts of the United States, and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. Judgments and decrees so rendered shall be subject to review as provided in sections 1254, 1291, and 1292 of Title 28. No costs shall be assessed for or against the Commission in any proceeding under this chapter brought by or against it in the Supreme Court or such other courts."
18
SIPC and the Trustee also appear to suggest that the rules adopted under § 17(a) can themselves provide the source of an implied damages remedy even if § 17(a) itself cannot. See Brief for Respondent SIPC 27-31; Brief for Respondent Redington 25-35; n. 3, supra. It suffices to say, however, that the language of the statute and not the rules must control. Ernst & Ernst v. Hochfelder, 425 U.S., at 214, 96 S.Ct., at 1391; Santa Fe Industries v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977).
19
We also have found implicit within § 10(b) of the 1934 Act a private cause of action for damages. See Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n. 9, 92 S.Ct. 165, 169 n. 9, 30 L.Ed.2d 128 (1971). But we recently have stated that in Superintendent this Court simply explicitly acquiesced in the 25-year-old acceptance by the lower federal courts of an implied action under § 10(b). Cannon v. University of Chicago, 441 U.S., at 690-693, n. 13, 99 S.Ct., at 1954-1955, n. 13; see Ernst & Ernst v. Hochfelder, supra, 425 U.S., at 196, 96 S.Ct., at 1382; Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539 (1975). There is no similar history of longstanding lower-court interpretation in this case. Indeed, only one other court in the 45-year history of the 1934 Act has held that a private cause of action for damages is available under § 17(a). Hawkins v. Merrill, Lynch, Pierce, Fenner & Beane, 85 F.Supp. 104, 124 (W.D.Ark.1949). In Hawkins, a national brokerage firm was held liable for damages under § 17(a) to a defalcating correspondent's customers for improperly advising the correspondent who was found to be controlled by the national firm, to describe its business in such a way as to avoid filing certified financial statements with the Commission under § 17(a). Citing Kardon v. National Gypsum Co., 69 F.Supp. 512 (E.D.Pa.1946), the District Court simply stated that violation of any of the provisions of the 1934 Act would give rise to a civil suit for damages on the part of the one injured, and that the defendants did not contend to the contrary. 85 F.Supp., at 121.
1
See SEC, Study of Unsafe and Unsound Practices of Brokers and Dealers, H.R.Doc.No. 92-231, p. 24 (1971); Exchange Act Release No. 8024 (1967); Exchange Act Release No. 11,497 (1975); see also 592 F.2d 617, 621-622 (CA2 1978).
2
In the Court's view, it is inappropriate to imply a private remedy because § 17(a) "neither confers rights on private parties nor proscribes any conduct as unlawful." Ante, at 569. But § 17 does impose duties for the benefit of private parties; in that sense, it both generates expectations, on which customers may appropriately rely, that those duties will be performed, and prohibits conduct inconsistent with the obligations created.
| 78
|
442 U.S. 477
99 S.Ct. 2432
61 L.Ed.2d 12
UNITED STATES, Petitioner,v.Henry HELSTOSKI.
No. 78-349.
Argued March 27, 1979.
Decided June 18, 1979.
Syllabus
During an investigation by several federal grand juries of reported political corruption, including allegations that aliens had paid money for the introduction of private bills in Congress to suspend the application of the immigration laws to allow the aliens to remain in the United States, respondent, then a Member of the House of Representatives, appeared voluntarily before the grand juries on 10 occasions. He testified as to his practices in introducing private immigration bills, voluntarily produced his files on numerous private bills, and provided copies of many such bills introduced on behalf of various aliens. Initially, respondent made no claim of privilege under the Fifth Amendment but eventually invoked that privilege as well as alluding to his privilege under the Speech or Debate Clause. Subsequently, respondent was indicted on charges of accepting money in return for being influenced in the performance of official acts, in violation of 18 U.S.C. § 201. He moved in District Court to dismiss the indictment on the ground, inter alia, that it violated the Speech or Debate Clause. The District Court denied the motion, holding that the Clause did not require dismissal, but that the Government was precluded from introducing evidence of past legislative acts in any form. The Court of Appeals affirmed this evidentiary ruling, holding, contrary to the Government's arguments, that legislative acts could not be introduced to show motive, since otherwise the protection of the Speech or Debate Clause would be negated, and that respondent had not waived the protection of that Clause by testifying before the grand juries.
Held: Under the Speech or Debate Clause, evidence of a legislative act of a Member of Congress may not be introduced by the Government in a prosecution under 18 U.S.C. § 201. United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507; United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681. Pp. 487-494.
(a) While the exclusion of evidence of past legislative acts undoubtedly will make prosecutions more difficult, nevertheless, the Speech or Debate Clause was designed to preclude prosecution of Members for legislative acts. References to legislative acts of a Member cannot be admitted without undermining the values protected by that Clause. Pp. 488-489. (b) As to what restrictions the Clause places on the admission of evidence, the concern is with whether there is evidence of a legislative act; the protection of the Clause extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes is not "speech or debate" within the meaning of the Clause, nor is a promise to introduce a bill at some future date a legislative act. Pp.489-490
(c) Respondent did not waive the protection of the Clause by testifying before the grand juries and voluntarily producing documentary evidence of legislative acts. Assuming, without deciding, that a Member of Congress may waive the Clause's protection against being prosecuted for a legislative act, such waiver could be found only after explicit and unequivocal renunciation of the protection. On this record, respondent's words and conduct did not constitute such a waiver; his exchanges with the attorneys for the United States indicated at most a willingness to waive the protection of the Fifth Amendment. Pp. 490-492.
(d) Nor does 18 U.S.C. § 201 amount to a congressional waiver of the protection of the Speech or Debate Clause. Assuming, arguendo, that Congress could constitutionally waive the protection of the Clause for individual Members, such waiver could be shown only by an explicit and unequivocal legislative expression, and there is no evidence of such a waiver. Pp. 492-493.
576 F.2d 511, affirmed.
Morton Stavis, Newark, N. J., for respondent.
Stanley M. Brand, Washington, D. C., for Thomas P. O'Neill, Jr., Speaker of the House, et al.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to resolve important questions concerning the restrictions the Speech or Debate Clause1 places on the admissibility of evidence at a trial on charges that a former Member of the House had, while a Member, accepted money in return for promising to introduce and introducing private bills.2
2
* Respondent Helstoski is a former Member of the United States House of Representatives from New Jersey. In 1974, while Helstoski was a Member of the House, the Department of Justice began investigating reported political corruption, including allegations that aliens had paid money for the introduction of private bills which would suspend the application of the immigration laws so as to allow them to remain in this country.
3
The investigation was carried on before nine grand juries. The grand juries were called according to the regular practice in the District of New Jersey, which was to have a different grand jury sitting on each of six days during the week; on two days there was a second grand jury. When the United States Attorney was ready to present evidence, he presented it to whichever grand jury was sitting that day. There was therefore no assurance that any grand jury which voted an indictment would see and hear all of the witnesses or see all of the documentary evidence. It was contemplated that the grand jury that was asked to return an indictment would review transcripts of relevant testimony presented to other grand juries.
4
Helstoski appeared voluntarily before grand juries on 10 occasions between April 1974 and May 1976. Each time he appeared, he was told that he had certain constitutional rights. Different terms were used by different attorneys for the United States, but the following exchange, which occurred at Helstoski's first appearance before a grand jury, fairly represents the several exchanges:
5
"Q. You were told at that time [at the office of the United States attorney earlier]—and just to repeat them today before we begin you were told that you did not have to give any testimony to the Grand Jury or make any statements to any officer of the United States. You understand that, do you not?
6
"A. I come with full and unlimited cooperation.
7
"Q. I understand that. . . .
8
* * * * *
9
"Q. And that you also know that anything that you may say to any agent of the United States or to this Grand Jury may later be used in a court of law against you; you understand that as well?
10
[Affirmative response given.]
11
* * * * *
12
"A. Whatever is in my possession, in my files, in its original form, will be turned over. Those files which I have some of them are very, very old. I've been in Congress since 1965. We mentioned this.
13
* * * * *
14
"Q. The Grand Jury wants from you simply the records that are in your possession, whether it be in your office in East Rutherford, New Jersey, Washington, D. C., your home, wherever they may be, the Grand Jury would like you to present those documents. Of course, you understand that if you wish not to present those documents you do not have to and that anything you do present may also, as I have told you about your personal testimony, may be used against you later in a court of law?
15
"A. I understand that. Whatever I have will be turned over to you with full cooperation of [sic ] this Grand Jury and with yourself, sir.
16
* * * * *
17
"A. I understand that. I promise full cooperation with your office, with the FBI, this Grand Jury.
18
"Q. The Grand Jury is appreciative of that fact. They also want to make certain that when you are giving this cooperation that you understand, as with anyone else that might be called before a United States Grand Jury, exactly what their constitutional rights are. And that is why I have gone through this step by step carefully so there will be no question and there will be no doubt in anybody's mind.
19
"A. As I indicated, I come with no request for immunity and you can be assured there won't be any plea of the Fifth Amendment under any circumstances."
20
Helstoski testified as to his practices in introducing private immigration bills, and he produced his files on numerous private bills. Included in the files were correspondence with a former legislative aide and with individuals for whom bills were introduced. He also provided copies of 169 bills introduced on behalf of various aliens.
21
Beginning with his fourth appearance before a grand jury, in October 1975, Helstoski objected to the burden imposed by the requests for information. The requests, he claimed, violated his own right of privacy and that of his constituents. In that appearance, he also stated that there were "some serious Constitutional questions" raised by the failure of the United States Attorney to return tax records which Helstoski had voluntarily delivered. He did not, however, assert a privilege against producing documents until the seventh appearance, on December 12, 1975. Then he declined to answer questions, complaining that the United States Attorney had stated to the District Court that the grand jury had concluded that Helstoski had misapplied campaign funds. He asserted a general invocation of rights under the Constitution and specifically listed the Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments.
22
At the next, and eighth, appearance on December 29, 1975, he repeated his objections to the conduct of the United States Attorney. After answering questions about campaign financing, personal loans, and other topics, he declined to answer questions about the receipt of a sum of money. That action was based upon his privilege under the Fifth Amendment "and on further grounds that to answer that question would violate my rights under the Constitution."
23
Because the grand jury considered that Helstoski's invocation of constitutional privileges was too general to be acceptable, it adjourned and reconvened before the District Judge to seek a ruling on Helstoski's claim of privilege "under the Constitution." After questioning Helstoski, the judge stated that the privilege against compulsory self-incrimination was the only privilege available to Helstoski. The judge assisted Helstoski in wording a statement invoking the privilege that was satisfactory to the grand jury. Thereafter, Helstoski invoked his Fifth Amendment privilege in refusing to answer further questions, including a series of questions about private immigration bills.
24
Not until his ninth, and penultimate, appearance before a grand jury did Helstoski assert any privilege under the Speech or Debate Clause. On May 7, 1976, Helstoski asked if he was a target of the investigation. The prosecutor declined to answer the question, stating, "[I]t would be inappropriate for this Grand Jury or indeed for me to say that you are a target." Helstoski then invoked his privilege against compulsory selfincrimination and declined to answer further questions or to produce documents.3 He also declined to produce a copy of an insert from the Congressional Record, saying "I consulted with my attorneys and based on the statement that was made on the floor, I don't have any right to be questioned at any other time or place as reference to statements made on the floor of Congress."
25
Although that was the first instance which can even remotely be characterized as reliance upon the Speech or Debate Clause, Helstoski earlier had indicated an awareness of another aspect of the constitutional privileges afforded Congressmen.4 During his fourth appearance before a grand jury, in October 1975, Helstoski complained that he had been served with a subpoena directing him to appear before a grand jury on a day that Congress was in session.5
26
At his 10th and final appearance before a grand jury, Helstoski invoked his Fifth Amendment privilege. But he also referred repeatedly to "other constitutional privileges which prevail." Nevertheless, he continued to promise to produce campaign and personal financial records as requested by the grand jury and directed by the District Judge.
II
27
In June 1976, a grand jury returned a multiple-count indictment charging Helstoski and others with various criminal acts. Helstoski moved to dismiss the indictment, contending that the grand jury process had been abused and that the indictment violated the Speech or Debate Clause.
28
The District Judge denied the motion after examining a transcript of the evidence presented to the indicting grand jury. He held that the Speech or Debate Clause did not require dismissal. He also ruled that the Government would not be allowed to offer evidence of the actual performance of any legislative acts. That ruling prompted the Government to file a motion requesting that the judge pass on the admissibility of 23 categories of evidence. The Government urged that a ruling was necessary to avoid the possibility of a mistrial. Helstoski opposed the motion, arguing that the witnesses would not testify as the Government indicated in its proffer.
29
The District Judge declined to rule separately on each of the categories. Instead, he ordered:
30
"The United States may not, during the presentation of its case-in-chief at the trial of [this] Indictment, introduce evidence of the performance of a past legislative act on the part of the defendant, Henry Helstoski, derived from any source and for any purpose." (Emphasis added.)
31
The Government filed a timely appeal from the evidentiary ruling, relying upon 18 U.S.C. § 3731:
32
"An appeal by the United States shall lie to a court of appeals from a decision or order of a district court 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 the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
33
"The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.
34
* * * * *
35
"The provisions of this section shall be liberally construed to effectuate its purposes."
36
The Court of Appeals affirmed the District Court's evidentiary ruling. 576 F.2d 511 (CA3 1978). It first concluded that an appeal was proper under § 3731, relying primarily upon its earlier decision in United States v. Beck, 483 F.2d 203 (1973), cert. denied, 414 U.S. 1132, 94 S.Ct. 873, 38 L.Ed.2d 757 (1974), and upon the language in the section mandating that it be "liberally construed."
37
Turning to the merits of the Government's appeal, the Court of Appeals rejected both of the Government's arguments: (a) that legislative acts could be introduced to show motive; and (b) that legislative acts could be introduced because Helstoski had waived his privilege by testifying before the grand juries. The court relied upon language in United States v. Brewster, 408 U.S. 501, 527, 92 S.Ct. 2531, 2545, 33 L.Ed.2d 507 (1972), prohibiting the introduction of evidence as to how a Congressman acted on, voted on, or resolved a legislative issue. The court reasoned that to permit evidence of such acts under the guise of showing motive would negate the protection afforded by the Speech or Debate Clause.
38
In holding Helstoski had not waived the protection of the Speech or Debate Clause, the Court of Appeals did not decide whether the protection could be waived. Rather, it assumed that a Member of Congress could waive the privilege, but held that any waiver must be "express and for the specific purpose for which the evidence of legislative acts is sought to be used against the member." 576 F.2d, at 523-524. Any lesser standard, the court reasoned, would frustrate the purpose of the Clause. Having found on the record before it that no waiver was shown, it affirmed the District Court order under which the Government is precluded from introducing evidence of past legislative acts in any form.
39
In seeking review of the judgment of the Court of Appeals, the Government contends that the Speech or Debate Clause does not bar the introduction of all evidence referring to legislative acts. It concedes that, absent a waiver, it may not introduce the bills themselves. But the Government argues that the Clause does not prohibit it from introducing evidence of discussions and correspondence which describe and refer to legislative acts if the discussions and correspondence did not occur during the legislative process. The Government contends that it seeks to introduce such evidence to show Helstoski's motive for taking money, not to show his motive for introducing the bills. Alternatively, the Government contends that Helstoski waived his protection under the Speech or Debate Clause when he voluntarily presented evidence to the grand juries. Volunteered evidence, the Government argues, is admissible at trial regardless of its content.
40
Finally, the Government argues, by enacting 18 U.S.C. § 201, Congress has shared its authority with the Executive and the Judiciary by express delegation authorizing the indictment and trial of Members who violate that section—in short an institutional decision to waive the privilege of the Clause.
III
41
The Court's holdings in United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), and United States v. Brewster, supra, leave no doubt that evidence of a legislative act of a Member may not be introduced by the Government in a prosecution under § 201.6 In Johnson there had been extensive questioning of both Johnson, a former Congressman, and others about a speech which Johnson had delivered in the House of Representatives and the motive for the speech. The Court's conclusion was unequivocal:
42
"We see no escape from the conclusion that such an intensive judicial inquiry, made in the course of a prosecution by the Executive Branch under a general conspiracy statute, violates the express language of the Constitution and the policies which underlie it." 383 U.S., at 177, 86 S.Ct., at 754.
43
In Brewster, we explained the holding of Johnson in this way:
44
"Johnson thus stands as a unanimous holding that a Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." 408 U.S., at 512, 92 S.Ct., at 2537.
45
The Government, however, argues that exclusion of references to past legislative acts will make prosecutions more difficult because such references are essential to show the motive for taking money. In addition, the Government argues that the exclusion of references to past acts is not logically consistent. In its view, if jurors are told of promises to perform legislative acts they will infer that the acts were performed, thereby calling the acts themselves into question.
46
We do not accept the Government's arguments; without doubt the exclusion of such evidence will make prosecutions more difficult. Indeed, the Speech or Debate Clause was designed to preclude prosecution of Members for legislative acts.7 The Clause protects "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts." Id., at 525, 92 S.Ct., at 2544. It "precludes any showing of how [a legislator] acted, voted, or decided." Id., at 527, 92 S.Ct., at 2545. Promises by a Member to perform an act in the future are not legislative acts. Brewster makes clear that the "compact" may be shown without impinging on the legislative function. Id., at 526, 92 S.Ct., at 2544.
47
We therefore agree with the Court of Appeals that references to past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause. We implied as much in Brewster when we explained: "To make a prima facie case under [the] indictment, the Government need not show any act of [Brewster] subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illicit compact, that is a criminal act." Ibid. (Emphasis altered.) A similar inference is appropriate from Johnson where we held that the Clause was violated by questions about motive addressed to others than Johnson himself. That holding would have been unnecessary if the Clause did not afford protection beyond legislative acts themselves.
48
Mr. Justice STEVENS misconstrues our holdings on the Speech or Debate Clause in urging: "The admissibility line should be based on the purpose of the offer rather than the specificity of the reference." Post, at 496. The Speech or Debate Clause does not refer to the prosecutor's purpose in offering evidence. The Clause does not simply state, "No proof of a legislative act shall be offered "; the prohibition of the Clause is far broader. It provides that Members "shall not be questioned in any other Place." Indeed, as Mr. Justice STEVENS recognizes, the admission of evidence of legislative acts "may reveal [to the jury] some information about the performance of legislative acts and the legislator's motivation in conducting official duties." Post, at 496. Revealing information as to a legislative act—speaking or debating—to a jury would subject a Member to being "questioned" in a place other than the House or Senate, thereby violating the explicit prohibition of the Speech or Debate Clause.
49
As to what restrictions the Clause places on the admission of evidence, our concern is not with the "specificity" of the reference. Instead, our concern is whether there is mention of a legislative act. To effectuate the intent of the Clause, the Court has construed it to protect other "legislative acts" such as utterances in committee hearings and reports. E. g., Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). But it is clear from the language of the Clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not "speech or debate." Likewise, a promise to introduce a bill is not a legislative act. Thus, in light of the strictures of Johnson and Brewster, the District Court order prohibiting the introduction of evidence "of the performance of a past legislative act" was redundant.
50
The Government argues that the prohibition of the introduction of evidence should not apply in this case because the protections of the Clause have been waived. The Government suggests two sources of waiver: (a) Helstoski's conduct and utterances, and (b) the enactment of 18 U.S.C. § 201 by Congress. The Government argues that Helstoski waived the protection of the Clause by testifying before the grand juries and voluntarily producing documentary evidence of legislative acts. The Government contends that Helstoski's conduct is sufficient to meet whatever standard is required for a waiver of that protection. We cannot agree.
51
Like the District Court and the Court of Appeals, we perceive no reason to decide whether an individual Member may waive the Speech or Debate Clause's protection against being prosecuted for a legislative act. Assuming that is possible, we hold that waiver can be found only after explicit and unequivocal renunciation of the protection. The ordinary rules for determining the appropriate standard of waiver do not apply in this setting. See generally Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) ("intentional relinquishment or abandonment of a known right or privilege"); Garner v. United States, 424 U.S. 648, 654 n. 9, 657, 96 S.Ct. 1178, 1182, 1183, 47 L.Ed.2d 370 (1976).
52
The Speech or Debate Clause was designed neither to assure fair trials nor to avoid coercion. Rather, its purpose was to preserve the constitutional structure of separate, coequal, and independent branches of government. The English and American history of the privilege suggests that any lesser standard would risk intrusion by the Executive and the Judiciary into the sphere of protected legislative activities. The importance of the principle was recognized as early as 1808 in Coffin v. Coffin, 4 Mass. 1, 27, where the court said that the purpose of the principle was to secure to every member "exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office." (Emphasis added.)
53
This Court has reiterated the central importance of the Clause for preventing intrusion by Executive and Judiciary into the legislative sphere.
54
"[I]t is apparent from the history of the clause that the privilege was not born primarily of a desire to avoid private suits . . . but rather to prevent intimidation by the executive and accountability before a possibly hostile judiciary.
55
* * * * *
56
"There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause." United States v. Johnson, 383 U.S., at 180-181, 182, 86 S.Ct., at 755, 756.
57
We reaffirmed that principle in Gravel v. United States, 408 U.S. 606, 618, 92 S.Ct. 2614, 2623, 33 L.Ed.2d 583 (1972), when we noted that the "fundamental purpose" of the Clause was to free "the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator."
58
On the record before us, Helstoski's words and conduct cannot be seen as an explicit and unequivocal waiver of his immunity from prosecution for legislative acts—assuming such a waiver can be made. The exchanges between Helstoski and the various United States Attorneys indeed indicate a willingness to waive the protection of the Fifth Amendment; but the Speech or Debate Clause provides a separate, and distinct, protection which calls for at least as clear and unambiguous an expression of waiver. No such showing appears on this record.
59
The Government also argues that there has been a sort of institutional waiver by Congress in enacting § 201. According to the Government, § 201 represents a collective decision to enlist the aid of the Executive Branch and the courts in the exercise of Congress' powers under Art. I, § 5, to discipline its Members. This Court has twice declined to decide whether a Congressman could, consistent with the Clause, be prosecuted for a legislative act as such, provided the prosecution were "founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members." Johnson, supra, 383 U.S., at 185, 86 S.Ct., at 758. United States v. Brewster, 408 U.S., at 529 n. 18, 92 S.Ct., at 2546 n. 18. We see no occasion to resolve that important question. We hold only that § 201 does not amount to a congressional waiver of the protection of the Clause for individual Members.
60
We recognize that an argument can be made from precedent and history that Congress, as a body, should not be free to strip individual Members of the protection guaranteed by the Clause from being "questioned" by the Executive in the courts. The controversy over the Alien and Sedition Acts reminds us how one political party in control of both the Legislative and the Executive Branches sought to use the courts to destroy political opponents.
61
The Supreme Judicial Court of Massachusetts noted in Coffin that "the privilege secured . . . is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the house." 4 Mass., at 27 (emphasis added). In a similar vein in Brewster we stated:
62
"The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." 408 U.S., at 507, 92 S.Ct., at 2535. (emphasis added).
63
See also id., at 524, 92 S.Ct., at 2543. We perceive no reason to undertake, in this case, consideration of the Clause in terms of separating the Members' rights from the rights of the body.
64
Assuming, arguendo, that the Congress could constitutionally waive the protection of the Clause for individual Members, such waiver could be shown only by an explicit and unequivocal expression. There is no evidence of such a waiver in the language or the legislative history of § 201 or any of its predecessors.8
65
We conclude that there was neither individual nor institutional waiver and that the evidentiary barriers erected by the Speech or Debate Clause must stand. Accordingly, the judgment of the Court of Appeals is
66
Affirmed.
67
Mr. Justice POWELL took no part in the consideration or decision of this case.
68
Mr. Justice STEVENS, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
69
The Court holds that United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507, and United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681, preclude the Government from introducing evidence of a legislative act by a Member of Congress. I agree that those cases do prevent the prosecution from attempting to prove that a legislative act was performed. I do not believe, however, that they require rejection of evidence that merely refers to legislative acts when that evidence is not offered for the purpose of proving the legislative act itself.
70
In Johnson, the Court held that a Member of Congress could not be prosecuted for conspiracy against the United States based on his preparation and delivery of an improperly motivated speech in the House of Representatives. After noting that the attention given to the speech was not merely "an incidental part of the Government's case," but rather was "an intensive judicial inquiry" into the speech's substance and motivation, id., at 176-177, 86 S.Ct., at 753, the Court held that the prosecution violated the express language of the Speech or Debate Clause and the policies that underlie it. The Court carefully emphasized, however, that its decision was limited to a case of that character and "does not touch a prosecution which . . . does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them." Id., at 185, 86 S.Ct., at 758.
71
In Brewster, the Court held that the Speech or Debate Clause did not bar prosecution of a former Senator for receiving money in return for being influenced in the performance of a legislative act. The Court read Johnson as allowing a prosecution of a Member of Congress so long as the Government's case does not rely on legislative acts or the motivation for such acts. It reasoned that Brewster was not being prosecuted for the performance of a legislative act, but rather for soliciting or agreeing to take money with knowledge that the donor intended to compensate him for an official act. Whether the Senator ever performed the official act was irrelevant.
72
As a practical matter, of course, it is clear that evidence relating to a legislator's motivation for accepting a bribe will also be probative of his intent in committing the official act for which the bribe was solicited or paid. Nonetheless, the Court made clear in Brewster that inquiries into the legislator's motivation in accepting payment are not barred by Johnson's proscription against inquiry into legislative motivation. "[A]n inquiry into the purpose of a bribe," the Brewster Court held, " 'does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.' " 408 U.S., at 526, 92 S.Ct., at 2544, quoting Johnson, supra, at 185, 86 S.Ct., at 757. Thus, so long as the Government's case does not depend upon the legislator's motivation in committing an official act, inquiries into his motivation in accepting a bribe—which obviously may be revealing as to both the existence of legislative acts and the motivation for them—are permissible under the Speech or Debate Clause, as interpreted in Brewster.
73
Brewster's recognition of this distinction, in my judgment, provides strong support for the Government's argument in this case. Here, the Government is seeking to introduce written and testimonial evidence as to Helstoski's motivation in soliciting and accepting bribes. Some of this evidence makes reference to past or future legislative acts for which payment is being sought or given. Obviously, this evidence, to the extent it is probative of Helstoski's intent in accepting payment, is an important and legitimate part of the Government's case against the former Congressman. Whether or not he ever committed the legislative acts is wholly irrelevant to the Government's proof, and inquiry into that subject is prohibited by Johnson and Brewster. But the mere fact that legislative acts are mentioned does not, in my view, require that otherwise relevant and admissible evidence be excluded. The acts may or may not have been performed; the statements in the letters may be true or false. The existence of the statements does not establish that legislative acts were performed; nor does it constitute inquiry into those acts. To be sure, such statements may reveal some information about the performance of legislative acts and the legislator's motivation in conducting official duties. However, that is also true of other evidence making no reference to specific past legislative acts, but rather dealing only with promises of future performance or less specific commitments to legislative action. Brewster establishes that such evidence is admissible in bribery prosecutions because it does not draw in question the legislative act itself or its motivation. The admissibility line should be based on the purpose of the offer rather than the specificity of the reference. So long as the jury is instructed that it should not consider the references as proof of legislative acts, and so long as no inquiry is made with respect to the motivations for such acts, Brewster does not bar the introduction of evidence simply because reference is made to legislative acts.*
74
Indeed, I think it important to emphasize that the majority today does not read Brewster to foreclose the introduction of any evidence making reference to legislative acts. The Court holds that evidence referring only to acts to be performed in the future may be admitted into evidence. Ante, at 490. The Court explains this holding by noting that a promise to perform a legislative act in the future is not itself a legislative act. But it is equally true that the solicitation of a bribe which contains a self-laudatory reference to past performance is not itself a legislative act. Whether the legislator refers to past or to future performance, his statement will be probative of his intent in accepting payment and, in either event, may incidentally shed light on the performance and motivation of legislative acts. The proper remedy, in my judgment, is not automatic inadmissibility for past references and automatic admissibility for future references. Rather, drawing on the language of the Constitution itself, the test should require the trial court to analyze the purpose of the prosecutor's questioning. If the evidentiary references to legislative acts are merely incidental to a proper purpose, the judge should admit the evidence and instruct the jury as to its limited relevance. The Constitution mandates that legislative acts "shall not be questioned"; it does not say they shall not be mentioned.
75
The Court properly notes that the Government has no valid complaint simply because application of the Speech or Debate Clause renders some prosecution of Members of Congress "difficult." Ante, at 488. But I do not believe the Clause was intended to make such prosecution virtually impossible. In light of the Court's holding in Brewster that bribery prosecutions are permissible, it is illogical to adopt rules of evidence that will allow a Member of Congress effectively to immunize himself from conviction simply by inserting references to past legislative acts in all communications, thus rendering all such evidence inadmissible. Because I believe the exclusionary rule the Court applies today affords greater protection than is necessary to fulfill the mission of the Speech or Debate Clause, I respectfully dissent to the limited extent indicated above.
76
Mr. Justice BRENNAN, dissenting.
77
While I have no quarrel with the Court's decision to limit the evidence which the Government may introduce at Helstoski's trial, I would go much further and order the dismissal of Helstoski's indictment altogether. "[P]roof of an agreement to be 'influenced' in the performance of legislative acts is by definition an inquiry into their motives, whether or not the acts themselves or the circumstances surrounding them are questioned at trial." United States v. Brewster, 408 U.S. 501, 536, 92 S.Ct. 2531, 2549, 33 L.Ed.2d 507 (1972) (BRENNAN J., dissenting). I continue to adhere to the view expressed in my dissent in Brewster, and would hold that "a corrupt agreement to perform legislative acts, even if provable without reference to the acts themselves, may not be the subject of a general conspiracy prosecution." Id., at 539, 92 S.Ct., at 2551.
1
The Speech or Debate Clause provides that "for any Speech or Debate in either House, they [the Senators and Representatives] shall not be questioned in any other Place." Art. I, § 6.
2
This case was argued together with No. 78-546, Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30, which involves the question of whether mandamus is an appropriate means of challenging the validity of an indictment on the ground that it violates the Speech or Debate Clause of the Constitution.
3
That Helstoski may not have had the extent of his privilege clearly in mind is indicated by the following exchange between him and an Assistant United States Attorney during Helstoski's ninth appearance before a grand jury:
"A. [Helstoski] I stand on my Constitutional privilege regarding the Fifth Amendment.
"Q. And that privilege is against self incrimination?
"A. Whatever the Fifth Amendment is."
4
The District Court found that "Helstoski was aware of the Speech or Debate Clause at the time he made his first grand jury appearance. He had recently concluded litigation involving his franking privilege in which he had relied upon the Speech or Debate Clause. Schiaffo v. Helstoski, 350 F.Supp. 1076 (D.N.J.1972), rev'd in part, aff'd in part and remanded, 492 F.2d 413 (3d Cir. 1974). In that litigation, Helstoski was represented by the same attorney who represented him throughout his grand jury appearances."
5
He offered this explanation to an Assistant United States Attorney:
"A. [Helstoski] Do you want to get into the Constitutional question of whether or not you could serve a member of Congress while Congress is in session?
"You know very well that can't be done . . . .
* * * * *
"Q. Congressman, you've used the term 'illegal subpoena.' Who told you it was illegal?
"A. That's my own judgment based on the Constitution and the Rules of Procedure of the House of Representatives."
6
We agree with the Court of Appeals that 18 U.S.C. § 3731 authorized the Government to appeal the District Court order restricting the evidence that could be used at trial. All of the requisites of § 3731 were met. There was an order of a district court excluding evidence; a United States attorney filed the proper certification; and the appeal was taken within 30 days. In United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975), we concluded that the purpose of the section was "to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." See also United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 2190-2191, 57 L.Ed.2d 65 (1978); H.R.Conf.Rep. No.91-1768, p. 21 (1970); S.Rep. No.91-1296, pp. 2-3 (1970); 116 Cong.Rec. 35659 (1970) (remarks of Sen. Hruska). There are no constitutional barriers to this appeal, and we conclude that the appeal was authorized by § 3731.
7
Mr. Justice STEVENS suggests that our holding is broader than the Speech or Debate Clause requires. In his view, "it is illogical to adopt rules of evidence that will allow a Member of Congress effectively to immunize himself from conviction [for bribery] simply by inserting references to past legislative acts in all communications, thus rendering all such evidence inadmissible." Post, at 498. Nothing in our opinion, by any conceivable reading, prohibits excising references to legislative acts, so that the remainder of the evidence would be admissible. This is a familiar process in the admission of documentary evidence. Of course, a Member can use the Speech or Debate Clause as a shield against prosecution by the Executive Branch, but only for utterances within the scope of legislative acts as defined in our holdings. That is the clear purpose of the Clause. The Clause is also a shield for libel and beyond doubt it "has enabled reckless men to slander and even destroy others with impunity, but that was the conscious choice of the Framers." United States v. Brewster, 408 U.S. 501, 516, 92 S.Ct. 2531, 2539, 33 L.Ed.2d 507 (1972). Nothing in our holding today, however, immunizes a Member from punishment by the House or the Senate by disciplinary action including expulsion from the Member's seat.
8
Section 201 was enacted in 1962. Pub.L. 87-849, 76 Stat. 1119. It replaced a section that had remained unchanged since its original enactment in 1862. Ch. 180, 12 Stat. 577. See Rev.Stat. § 1781; 18 U.S.C. § 205 (1958 ed.). The debates on the 1862 Act reveal no discussion of the speech or debate privilege. See, e. g., Cong. Globe, 37th Cong., 2d Sess., 3260 (1862). As explained in the House Report accompanying the 1962 Act, the purpose of the Act was "to render uniform the law describing a bribe and prescribing the intent or purpose which makes its transfer unlawful." H.R.Rep. No.748, 87th Cong., 1st Sess., 15 (1961). The Senate Report expanded the explanation and said that a purpose of the Act was the "substitution of a single comprehensive section of the Criminal Code for a number of existing statutes concerned with bribery. This consolidation would make no significant changes of substance and, more particularly, would not restrict the broad scope of the present bribery statutes as construed by the courts." S.Rep. No.2213, 87th Cong., 2d Sess., 4 (1962); U.S.Code Cong. & Admin.News, 1962, pp. 3852, 3853.
*
In reaching this conclusion, I have not overlooked the language in Brewster, relied upon by respondent, that "Johnson precludes any showing of how [Brewster] acted, voted, or decided." 408 U.S., at 527, 92 S.Ct., at 2545. Taken out of context, that language would appear to support Helstoski's claim that all references to legislative action are inadmissible. When placed in its proper context, however, it clearly does not.
The quoted statement was made with respect to the dissent's argument that criminal prosecution should not be permitted since the indictment charged the offense as being in part linked to Brewster's " 'action, vote and decision on postage rate legislation.' " In response, the Court pointed out that, while this was true, "[t]he Government, as we have noted, need not prove any specific act, speech, debate, or decision to establish a violation of the statute under which appellee was indicted. To accept the arguments of the dissent would be to retreat from the Court's position in Johnson that a Member may be convicted if no showing of legislative act is required." Id., at 528, 92 S.Ct., at 2545 (emphasis added). When placed in this context, I think it clear that the statement relied upon by respondent should be read only as establishing—as Johnson itself held, and as the Brewster Court read Johnson —that a Member of Congress may not be prosecuted if proof of a specific legislative act would be required as an element of the Government's case. The recognition by the Court today that evidence referring to future legislative actions is admissible, see ante, at 490, itself is a rejection of the broad reading respondent attaches to "any showing."
| 78
|
442 U.S. 510
99 S.Ct. 2450
61 L.Ed.2d 39
David SANDSTROM, Petitioner,v.State of MONTANA.
No. 78-5384.
Argued April 18, 1979.
Decided June 18, 1979.
Syllabus
Based upon a confession and other evidence, petitioner was charged under a Montana statute with "deliberate homicide," in that he "purposely or knowingly" caused the victim's death. At trial, petitioner argued that, although he killed the victim, he did not do so "purposely or knowingly," and therefore was not guilty of deliberate homicide. The trial court instructed the jury that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts," over petitioner's objection that such instruction had the effect of shifting the burden of proof on the issue of purpose or knowledge. The jury found petitioner guilty, and the Montana Supreme Court affirmed, holding that although shifting the burden of proof to the defendant by means of a presumption is prohibited, allocation of "some burden of proof" to a defendant is permissible. Finding that under the instruction in question petitioner's sole burden was to produce "some " evidence that he did not intend the ordinary consequences of his voluntary acts, and not to disprove that he acted "purposely or knowingly," the Montana court held that the instruction did not violate due process standards.
Held: Because the jury may have interpreted the challenged presumption as conclusive, like the presumptions in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, and United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854, or as shifting the burden of persuasion, like that in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, and because either interpretation would have violated the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt, the instruction is unconstitutional. Pp. 514-527.
(a) The effect of a presumption in a jury instruction is determined by the way in which a reasonable juror could have interpreted it, not by a state court's interpretation of its legal import. Pp.514,517.
(b) Conclusive presumptions "conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime," Morissette, supra, at 275, 72 S.Ct. at 255, and they "invad[e the] factfinding function," United States Gypsum Co., supra, at 446, 98 S.Ct. at 2878, which in a criminal case the law assigns to the jury. The presumption announced to petitioner's jury may well have had exactly these consequences, since upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and "ordinary consequences" of petitioner's action), the jury could have reasonably concluded that it was directed to find against petitioner on the element of intent. The State was thus not forced to prove "beyond a reasonable DOUBT . . . EVERY FACT NECESSARY TO CONSTITUTe the crime . . . charged," in re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, and petitioner was deprived of his constitutional rights. Pp. 521-523.
(c) A presumption which, although not conclusive, had the effect of shifting the burden of persuasion to petitioner, would have suffered from similar infirmities. If the jury interpreted the presumption in this manner, it could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was then shifted to petitioner to prove that he lacked the requisite mental state. Such a presumption was found constitutionally deficient in Mullaney, supra. P.524
(d) Without merit is the State's argument that since the jury could have interpreted the word "intends" in the instruction as referring only to petitioner's "purpose," and could have convicted petitioner solely for his "knowledge" without considering "purpose," it might not have relied upon the tainted presumption at all. First, it is not clear that a jury would have so interpreted "intends". More significantly, even if a jury could have ignored the presumption, it cannot be certain that this is what it did do, as its verdict was a general one. Pp. 525-526.
(e) Since whether the jury's reliance upon the instruction constituted, or could have ever constituted, harmless error are issues that were not considered by the Montana Supreme Court, this Court will not reach them as an initial matter. Pp. 526-527.
176 Mont. 492, 580 P.2d 106, reversed and remanded.
Byron W. Boggs, Helena, Mont., for petitioner.
Michael T. Greely, Atty. Gen., Helena, Mont., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question presented is whether, in a case in which intent is an element of the crime charged, the jury instruction, "the law presumes that a person intends the ordinary consequences of his voluntary acts," violates the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt.
2
* On November 22, 1976, 18-year-old David Sandstrom confessed to the slaying of Annie Jessen. Based upon the confession and corroborating evidence, petitioner was charged on December 2 with "deliberate homicide," Mont.Code Ann. § 45-5-102 (1978), in that he "purposely or knowingly caused the death of Annie Jessen." App. 3.1 At trial, Sandstrom's attorney informed the jury that, although his client admitted killing Jessen, he did not do so "purposely or knowingly," and was therefore not guilty of "deliberate homicide" but of a lesser crime. Id., at 6-8. The basic support for this contention was the testimony of two court-appointed mental health experts, each of whom described for the jury petitioner's mental state at the time of the incident. Sandstrom's attorney argued that this testimony demonstrated that petitioner, due to a personality disorder aggravated by alcohol consumption, did not kill Annie Jessen "purposely or knowingly."2
3
The prosecution requested the trial judge to instruct the jury that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." Petitioner's counsel objected, arguing that "the instruction has the effect of shifting the burden of proof on the issue of" purpose or knowledge to the defense, and that "that is impermissible under the Federal Constitution, due process of law." Id., at 34. He offered to provide a number of federal decisions in support of the objection, including this Court's holding in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), but was told by the judge: "You can give those to the Supreme Court. The objection is overruled." App. 34. The instruction was delivered, the jury found petitioner guilty of deliberate homicide, id., at 38, and petitioner was sentenced to 100 years in prison.
4
Sandstrom appealed to the Supreme Court of Montana, again contending that the instruction shifted to the defendant the burden of disproving an element of the crime charged, in violation of Mullaney v. Wilbur, supra, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The Montana court conceded that these cases did prohibit shifting the burden of proof to the defendant by means of a presumption, but held that the cases "do not prohibit allocation ofsome burden of proof to a defendant under certain circumstances." 176 Mont. 492, 497, 580 P.2d 106, 109 (1978). Since in the court's view, "[d]efendant's sole burden under instruction No. 5 was to produce some evidence that he did not intend the ordinary consequences of his voluntary acts, not to disprove that he acted 'purposely' or 'knowingly,' . . . the instruction does not violate due process standards as defined by the United States or Montana Constitution . . . ." Ibid. (emphasis added).
5
Both federal and state courts have held, under a variety of rationales, that the giving of an instruction similar to that challenged here is fatal to the validity of a criminal conviction.3 We granted certiorari, 439 U.S. 1067, 99 S.Ct. 832, 59 L.Ed.2d 31 (1979), to decide the important question of the instruction's constitutionality. We reverse.
II
6
The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. See Ulster County Court v. Allen, 442 U.S. 140, 157-163, 99 S.Ct. 2213, 2224-2227, 60 L.Ed.2d 777 (1979). That determination requires careful attention to the words actually spoken to the jury, see id., at 157-159, n. 16, 99 S.Ct., at 2225, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.
7
Respondent argues, first, that the instruction merely described a permissive inference—that is, it allowed but did not require the jury to draw conclusions about defendant's intent from his actions—and that such inferences are constitutional. Brief for Respondent 3, 15. These arguments need not detain us long, for even respondent admits that "it's possible" that the jury believed they were required to apply the presumption. Tr. of Oral Arg. 28. Sandstrom's jurors were told that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." They were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory. See generally United States v. Wharton, 139 U.S.App.D.C. 293, 298, 433 F.2d 451, 456 (1970); Green v. United States, 132 U.S.App.D.C. 98, 99, 405 F.2d 1368, 1369 (1968). See also Montana Rule of Evidence 301(a).4
8
In the alternative, respondent urges that, even if viewed as a mandatory presumption rather than as a permissive inference, the presumption did not conclusively establish intent but rather could be rebutted. On this view, the instruction required the jury, if satisfied as to the facts which trigger the presumption, to find intent unless the defendant offered evidence to the contrary. Moreover, according to the State, all the defendant had to do to rebut the presumption was produce "some" contrary evidence; he did not have to "prove" that he lacked the required mental state. Thus, "[a]t most, it placed a burden of production on the petitioner," but "did not shift to petitioner the burden of persuasion with respect to any element of the offense . . .." Brief for Respondent 3 (emphasis added). Again, respondent contends that presumptions with this limited effect pass constitutional muster.
9
We need not review respondent's constitutional argument on this point either, however, for we reject this characterization of the presumption as well. Respondent concedes there is a "risk" that the jury, once having found petitioner's act voluntary, would interpret the instruction as automatically directing a finding of intent. Tr. of Oral Arg. 29. Moreover, the State also concedes that numerous courts "have differed as to the effect of the presumption when given as a jury instruction without further explanation as to its use by the jury," and that some have found it to shift more than the burden of production, and even to have conclusive effect. Brief for Respondent 17. Nonetheless, the State contends that the only authoritative reading of the effect of the presumption resides in the Supreme Court of Montana. And the State argues that by holding that "[d]efendant's sole burden under instruction No. 5 was to produce some evidence that he did not intend the ordinary consequences of his voluntary acts, not to disprove that he acted 'purposely' or 'knowingly,' " 176 Mont., at 497-498, 580 P.2d at 109 (emphasis added), the Montana Supreme Court decisively established that the presumption at most affected only the burden of going forward with evidence of intent—that is, the burden of production.5
10
The Supreme Court of Montana is, of course, the final authority on the legal weight to be given a presumption under Montana law, but it is not the final authority on the interpretation which a jury could have given the instruction. If Montana intended its presumption to have only the effect described by its Supreme Court, then we are convinced that a reasonable juror could well have been misled by the instruction given, and could have believed that the presumption was not limited to requiring the defendant to satisfy only a burden of production. Petitioner's jury was told that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." They were not told that the presumption could be rebutted, as the Montana Supreme Court held, by the defendant's simple presentation of "some" evidence; nor even that it could be rebutted at all. Given the common definition of "presume" as "to suppose to be true without proof," Webster's New Collegiate Dictionary 911 (1974), and given the lack of qualifying instructions as to the legal effect of the presumption, we cannot discount the possibility that the jury may have interpreted the instruction in either of two more stringent ways.
11
First, a reasonable jury could well have interpreted the presumption as "conclusive," that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant's voluntary actions (and their "ordinary" consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than "some" evidence thus effectively shifting the burden of persuasion on the element of intent. Numerous federal and state courts have warned that instructions of the type given here can be interpreted in just these ways. See generally United States v. Wharton, 139 U.S.App.D.C. 293, 433 F.2d 451 (1970); Berkovitz v. United States, 213 F.2d 468 (CA5 1954); State v. Roberts, 88 Wash.2d 337, 341-342, 562 P.2d 1259, 1261-1262 (1977) (en banc); State v. War britton, 211 Kan. 506, 509, 506 P.2d 1152, 1155 (1973); Hall v. State, 49 Ala.App. 381, 385, 272 So.2d 590, 593 (Crim.App.1973). See also United States v. Chiantese, 560 F.2d 1244, 1255 (CA5 1977). And although the Montana Supreme Court held to the contrary in this case, Montana's own Rules of Evidence expressly state that the presumption at issue here may be overcome only "by a preponderance of evidence contrary to the presumption." Montana Rule of Evidence 301(b)(2).6 Such a requirement shifts not only the burden of production, but also the ultimate burden of persuasion on the issue of intent.7
12
We do not reject the possibility that some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with "some" evidence in rebuttal. However, the fact that a reasonable juror could have given the presumption conclusive or persuasion-shifting effect means that we cannot discount the possibility that Sandstrom's jurors actually did proceed upon one or the other of these latter interpretations. And that means that unless these kinds of presumptions are constitutional, the instruction cannot be adjudged valid.8 Ulster County Court v. Allen, 442 U.S., at 159-160, n. 17, 99 S.Ct., at 2226, and at 175-176, 99 S.Ct., at 2234 (POWELL, J., dissenting); Bachellar v. Maryland, 397 U.S. 564, 570-571, 90 S.Ct. 1312, 1315-1316, 25 L.Ed.2d 570 (1970); Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 1545-1546, 23 L.Ed.2d 57 (1969); Carpenters v. United States, 330 U.S. 395, 408-409, 67 S.Ct. 775, 782, 91 L.Ed. 973 (1947); Bollenbach v. United States, 326 U.S. 607, 611-614, 66 S.Ct. 402, 404-405, 90 L.Ed. 350 (1946). It is the line of cases urged by petitioner, and exemplified by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that provides the appropriate mode of constitutional analysis for these kinds of presumptions.9
III
In Winship, this Court stated:
13
"Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id., at 364, 90 S.Ct. at 1073 (emphasis added).
14
Accord, Patterson v. New York, 432 U.S., at 210, 97 S.Ct. at 2327. The petitioner here was charged with and convicted of deliberate homicide, committed purposely or knowingly, under Mont.Code Ann. § 45-5-102(a) (1978). See App. 3, 42. It is clear that under Montana law, whether the crime was committed purposely or knowingly is a fact necessary to constitute the crime of deliberate homicide.10 Indeed, it was the lone element of the offense at issue in Sandstrom's trial, as he confessed to causing the death of the victim, told the jury that knowledge and purpose were the only questions he was controverting, and introduced evidence solely on those points. App. 6-8. Moreover, it is conceded that proof of defendant's "intent" would be sufficient to establish this element.11 Thus, the question before this Court is whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner's state of mind. We conclude that under either of the two possible interpretations of the instruction set out above, precisely that effect would result, and that the instruction therefore represents constitutional error.
15
We consider first the validity of a conclusive presumption. This Court has considered such a presumption on at least two prior occasions. In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the defendant was charged with willful and knowing theft of Government property. Although his attorney argued that for his client to be found guilty, " 'the taking must have been with felonious intent'," the trial judge ruled that " '[t]hat is presumed by his own act.' " Id., at 249, 72 S.Ct. at 243. After first concluding that intent was in fact an element of the crime charged, and after declaring that "[w]here intent of the accused is an ingredient of the crime charged, its existence is . . . a jury issue," Morissette held:
16
"It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a 'presumption' a conclusion which a court thinks probable from given facts. . . . [But] [w]e think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime." Id., at 274-275, 72 S.Ct. at 255-256. (Emphasis added; footnote omitted.)
17
Just last Term, in United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), we reaffirmed the holding of Morissette. In that case defendants, who were charged with criminal violations of the Sherman Act, challenged the following jury instruction:
18
"The law presumes that a person intends the necessary and natural consequences of his acts. Therefore, if the effect of the exchanges of pricing information was to raise, fix, maintain and stabilize prices, then the parties to them are presumed, as a matter of law, to have intended that result." 438 U.S., at 430, 98 S.Ct., at 2869.
19
After again determining that the offense included the element of intent, we held:
20
"[A] defendant's state of mind or intent is an element of a criminal antitrust offense which . . . cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices. Cf. Morissette v. United States . . . .
21
* * * * *
22
"Although an effect on prices may well support an inference that the defendant had knowledge of the probability of such a consequence at the time he acted, the jury must remain free to consider additional evidence before accepting or rejecting the inference. . . . [U]ltimately the decision on the issue of intent must be left to the trier of fact alone. The instruction given invaded this factfinding function." Id., at 435, 446, 98 S.Ct. at 2872, 2878 (emphasis added).
23
See also Hickory v. United States, 160 U.S. 408, 422, 16 S.Ct. 327, 332, 40 L.Ed. 474 (1896).
24
As in Morissette and United States Gypsum Co., a conclusive presumption in this case would "conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime," and would "invade [the] factfinding function" which in a criminal case the law assigns solely to the jury. The instruction announced to David Sandstrom's jury may well have had exactly these consequences. Upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and "ordinary consequences" of defendant's action), Sandstrom's jurors could reasonably have concluded that they were directed to find against defendant on the element of intent. The State was thus not forced to prove "beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged," 397 U.S., at 364, 90 S.Ct. at 1073, and defendant was deprived of his constitutional rights as explicated in Winship. A presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant, would have suffered from similar infirmities. If Sandstrom's jury interpreted the presumption in that manner, it could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state. Such a presumption was found constitutionally deficient in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In Mullaney, the charge was murder, which under Maine law required proof not only of intent but of malice. The trial court charged the jury that " 'malice aforethought is an essential and indispensable element of the crime of murder.' " Id., at 686, 95 S.Ct. at 1883. However, it also instructed that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. Ibid. As we recounted just two Terms ago in Patterson v. New York, "[t]his Court . . . unanimously agreed with the Court of Appeals that Wilbur's due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation." 432 U.S., at 214, 97 S.Ct. at 2329. And Patterson reaffirmed that "a State must prove every ingredient of an offense beyond a reasonable doubt, and . . . may not shift the burden of proof to the defendant" by means of such a presumption. Id., at 215, 97 S.Ct. at 2330.
25
Because David Sandstrom's jury may have interpreted the judge's instruction as constituting either a burden-shifting presumption like that in Mullaney, or a conclusive presumption like those in Morissette and United States Gypsum Co., and because either interpretation would have deprived defendant of his right to the due process of law, we hold the instruction given in this case unconstitutional.
IV
26
Respondent has proposed two alternative rationales for affirming petitioner's conviction, even if the presumption at issue in this case is unconstitutional. First, the State notes that the jury was instructed that deliberate homicide may be committed "purposely or knowingly."12 App. 35 (emphasis added). Since the jury was also instructed that a person "intends" the ordinary consequences of his voluntary acts, but was not provided with a definition of "intends," respondent argues that jurors could have interpreted the word as referring only to the defendant's "purpose." Thus, a jury which convicted Sandstrom solely for his "knowledge," and which interpreted "intends" as relevant only to "purpose", would not have needed to rely upon the tainted presumption at all.
27
We cannot accept respondent's argument. As an initial matter, we are not at all certain that a jury would interpret the word "intends" as bearing solely upon purpose. As we said in United States v. United States Gypsum Co., 438 U.S., at 445, 98 S.Ct. at 2877, "[t]he element of intent in the criminal law has traditionally been viewed as a bifurcated concept embracing either the specific requirement of purpose or the more general one of knowledge or awareness." See also W. LaFave & A. Scott, Criminal Law 196 (1972).
28
But, more significantly, even if a jury could have ignored the presumption and found defendant guilty because he acted knowingly, we cannot be certain that this is what they did do.13 As the jury's verdict was a general one, App. 38, we have no way of knowing that Sandstrom was not convicted on the basis of the unconstitutional instruction. And "[i]t has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside. See, e. g., Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931)." Leary v. United States, 395 U.S., at 31-32, 89 S.Ct. at 1545-1546. See Ulster County Court v. Allen, 442 U.S., at 159-160, n. 17, 99 S.Ct., at 2226, and at 175-176, 99 S.Ct., at 2234 (POWELL, J., dissenting); Bachellar v. Maryland, 397 U.S., at 570-571, 90 S.Ct. at 1315-1316; Brotherhood of Carpenters v. United States, 330 U.S., at 408-409, 67 S.Ct. at 782; Bollenbach v. United States, 326 U.S., at 611-614, 66 S.Ct. at 404-405.
29
Respondent's final argument is that even if the jury did rely upon the unconstitutional instruction, this constituted harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), because both defendant's confession and the psychiatrist's testimony demonstrated that Sandstrom possessed the requisite mental state. Brief for Respondent 4-13. In reply, it is said that petitioner confessed only to the slaying and not to his mental state, that the psychiatrist's testimony amply supported his defense, Brief for Petitioner 15-16, and that in any event an unconstitutional jury instruction on an element of the crime can never constitute harmless error, see generally Carpenters v. United States, supra, 330 U.S., at 408 -409, 67 S.Ct., at 782; Bollenbach v. United States, supra, 326 U.S., at 614, 615, 66 S.Ct., at 405-406. As none of these issues was considered by the Supreme Court of Montana, we decline to reach them as an initial matter here. See Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Coleman v. Alabama, 399 U.S. 1, 11, 90 S.Ct. 1999, 2004, 26 L.Ed.2d 387 (1970). The Montana court will, of course, be free to consider them on remand if it so desires. Ibid. Accordingly, the judgment of the Supreme Court of Montana is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
30
It is so ordered.
31
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, concurring.
32
The Fourteenth Amendment to the United States Constitution prohibits any State from depriving a person of liberty without due process of law, and in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), this Court held that the Fourteenth Amendment's guarantees prohibit a State from shifting to the defendant the burden of disproving an element of the crime charged. I am loath to see this Court go into the business of parsing jury instructions given by state trial courts, for as we have consistently recognized, "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). And surely if this charge had, in the words of the Court, "merely described a permissive inference," ante at 514, it could not conceivably have run afoul of the constitutional decisions cited by the Court in its opinion. But a majority of my Brethren conclude that "it is clear that a reasonable juror could easily have viewed such an instruction as mandatory," ante, at 515, and counsel for the State admitted in oral argument "that 'it's possible' that the jury believed they were required to apply the presumption." Ante, at 514-515.
33
While I continue to have doubts as to whether this particular jury was so attentively attuned to the instructions of the trial court that it divined the difference recognized by lawyers between "infer" and "presume," I defer to the judgment of the majority of the Court that this difference in meaning may have been critical in its effect on the jury. I therefore concur in the Court's opinion and judgment.
1
The statute provides:
"45-5-101. Criminal homicide. (1) A person commits the offense of criminal homicide if he purposely, knowingly, or negligently causes the death of another human being.
"(2) Criminal homicide is deliberate homicide, mitigated deliberate homicide, or negligent homicide.
"45-5-102. Deliberate homicide. (1) Except as provided in 45-5-103(1), criminal homicide constitutes deliberate homicide if:
"(a) it is committed purposely or knowingly . . . ."
2
Petitioner initially filed a notice of intent to rely on "mental disease or defect excluding criminal responsibility" as a defense. That defense required evidence that defendant was "unable either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." Mont.Code Ann. § 46-14-101 (1978). The defense was withdrawn at trial, with the petitioner contending that, although he was not "unable" to form the requisite intent, he did not have it at the time of the killing.
3
See Chappell v. United States, 270 F.2d 274 (CA9 1959); Bloch v. United States, 221 F.2d 786 (CA9 1955); Berkovitz v. United States, 213 F.2d 468 (CA5 1954); Wardlaw v. United States, 203 F.2d 884 (CA5 1953); State v. Warbritton, 211 Kan. 506, 506 P.2d 1152 (1973); Hall v. State, 49 Ala.App. 381, 272 So.2d 590, 593 (Crim.App.1973). See also United States v. Wharton, 139 U.S.App.D.C. 293, 433 F.2d 451 (1970). In addition, two United States Courts of Appeals have ordered their District Courts to delete the instruction in future cases. See United States v. Garrett, 574 F.2d 778 (CA3 1978); United States v. Chiantese, 560 F.2d 1244 (CA5 1977). The standard reference work for federal instructions, 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions 405 (3d ed. 1977), describes the instruction as "clearly erroneous," and as constituting "reversible error," id., at 448.
4
"Rule 301. (a) Presumption defined. A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action or proceeding." (Emphasis added.)
5
For purposes of argument, we accept respondent's definition of the production burden when applied to a defendant in a criminal case. We note, however, that the burden is often described quite differently when it rests upon the prosecution. See United States v. Vuitch, 402 U.S. 62, 72 n. 7, 91 S.Ct. 1294, 1299, 28 L.Ed.2d 601 (1971) ("evidence from which a jury could find a defendant guilty beyond a reasonable doubt"); C. McCormick, Evidence § 338, p. 790, and n. 33 (2d ed. 1972), p. 101, and n. 34.1 (Supp.1978). We also note that the effect of a failure to meet the production burden is significantly different for the defendant and prosecution. When the prosecution fails to meet it, a directed verdict in favor of the defense results. Such a consequence is not possible upon a defendant's failure, however, as verdicts may not be directed against defendants in criminal cases. United States v. Martin Linen Supply Co., 430 U.S. 564, 572-573, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977); Carpenters v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973 (1947); Mims v. United States, 375 F.2d 135, 148 (CA5 1967).
6
Montana Code Ann. § 26-1-602 (1978) states:
" '[D]isputable presumptions' . . . may be controverted by other evidence. The following are of that kind:
* * * * *
"3. that a person intends the ordinary consequence of his voluntary act."
Montana Rule of Evidence 301 provides:
"(b)(2) All presumptions, other than conclusive presumptions, are disputable presumptions and may be controverted. A disputable presumption may be overcome by a preponderance of evidence contrary to the presumption. Unless the presumption is overcome, the trier of fact must find the assumed fact in accordance with the presumption." (Emphasis added.)
See also Monaghan v. Standard Motor Co., 96 Mont. 165, 173-174, 29 P.2d 378, 379-380 (1934). At oral argument, the Attorney General of Montana agreed that "admittedly Montana law . . . states that a presumption requires a person to overcome that presumption by a preponderance of evidence." Tr. of Oral Arg. 30.
We do not, of course, cite this Rule of Evidence to dispute the Montana Supreme Court's interpretation of its own law. It merely serves as evidence that a reasonable man—here, apparently, the drafter of Montana's own Rules of Evidence—could interpret the presumption at issue in this case as shifting to the defendant the burden of proving his innocence by a preponderance of the evidence.
7
The potential for these interpretations of the presumption was not removed by the other instructions given at the trial. It is true that the jury was instructed generally that the accused was presumed innocent until proved guilty, and that the State had the burden of proving beyond a reasonable doubt, that the defendant caused the death of the deceased purposely or knowingly. App. 34-35; Brief for Respondent 21. But this is not rhetorically inconsistent with a conclusive or burden-shifting presumption. The jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied. For example, if the presumption were viewed as conclusive, the jury could have believed that, although intent must be proved beyond a reasonable doubt, proof of the voluntary slaying and its ordinary consequences constituted proof of intent beyond a reasonable doubt. Cf. Mullaney v. Wilbur, 421 U.S. 684, 703 n. 31, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975) ("These procedural devices require (in the case of a presumption) . . . the trier of fact to conclude that the prosecution has met its burden of proof with respect to the presumed . . . fact by having satisfactorily established other facts").
8
Given our ultimate result in this case, we do not need to consider what kind of constitutional analysis would be appropriate for other kinds of presumptions.
9
Another line of our cases also deals with the validity of certain kinds of presumptions. See Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). These cases did not, however, involve presumptions of the conclusive or persuasion-shifting variety. See Ulster County Court v. Allen, 442 U.S., at 157, and n. 16, 99 S.Ct., at 2224-2225, and n. 16; and at 169, 99 S.Ct., at 2231 (POWELL, J., dissenting); Mullaney v. Wilbur, supra, 421 U.S., at 703 n. 31, 95 S.Ct., at 1892 (1975); Leary v. United States, supra, 395 U.S., at 35, 89 S.Ct., at 1547; Roviaro v. United States, supra, 353 U.S., at 63, 77 S.Ct., at 629; C. McCormick, Evidence 831 (2d ed. 1972).
A line of even older cases urged upon us by respondent is equally inapplicable. In Agnew v. United States, 165 U.S. 36, 50, 17 S.Ct 235, 240, 41 L.Ed. 624 (1897), the trial court's instruction expressly stated that the presumption was not conclusive, and this Court found that other problems with the instruction were cured by the charge considered as a whole. The other proffered cases simply involved general comments by the Court upon the validity of presuming intent from action. See Radio Officers v. NLRB, 347 U.S. 17, 45, 74 S.Ct. 323, 338, 98 L.Ed. 455 (1954); Cramer v. United States, 325 U.S. 1, 31, 65 S.Ct. 918, 933, 89 L.Ed. 1441 (1945). See also Reynolds v. United States, 98 U.S. 145, 167, 25 L.Ed. 244 (1879) (religious objection to polygamy law not a defense).
10
The statute is set out at n. 1, supra. In State v. McKenzie, 177 Mont. 280, 327-328, 581 P.2d 1205, 1232 (1978), the Montana Supreme Court stated:
"In Montana, a person commits the offense of deliberate homicide if he purposely or knowingly causes the death of another human being. Sections 94-5-102(1)(a), 94-5-101(1), R.C.M.1947. The statutorily defined elements of the offense, each of which the State must prove beyond a reasonable doubt, are therefore causing the death of another human being with the knowledge that you are causing or with the purpose to cause the death of that human being." (Emphasis added.)
Accord, State v. Collins, 178 Mont. 36, 45, 582 P.2d 1179, 1184 (1978) ("committing the homicide 'purposely or knowingly' is an element of deliberate homicide").
11
Respondent agrees that "intent" and "purpose" are roughly synonymous, see also Webster's New Collegiate Dictionary 601 (1974), but contests the relevance of "intent" to "knowledge." See Tr. of Oral Arg. 18; Brief for Respondent 8-9. This problem is discussed in Part IV, infra.
12
The jurors were instructed:
"INSTRUCTION NO. 7
" 'Knowingly' is defined as follows: A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as 'knowing' or 'with knowledge' have the same meaning.
"INSTRUCTION NO. 8
" 'Purposely' is defined as follows: A person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is his conscious object to engage in that conduct or to cause that result." App. 35-36.
13
Indeed, with respondent's interpretation of "intends" as going solely to "purpose," it would be surprising if the jury considered "knowledge" before it considered "purpose." With the assistance of the presumption, the latter would have been easier to find than the former, and there is no reason to believe the jury would have deliberately undertaken the more difficult task.
| 01
|
442 U.S. 544
99 S.Ct. 2470
61 L.Ed.2d 68
UNITED STATES et al., Petitioners,v.Glen L. RUTHERFORD et al.
No. 78-605.
Argued April 25, 1979.
Decided June 18, 1979.
Opinion after remand, 10 Cir., 616 F.2d 455.
Syllabus
Terminally ill cancer patients and their spouses brought this action to enjoin the Government from interfering with the interstate shipment and sale of Laetrile, a drug not approved for distribution under the Federal Food, Drug and Cosmetic Act (Act). Section 505 of the Act prohibits interstate distribution of any "new drug" unless the Secretary of Health, Education, and Welfare approves an application supported by substantial evidence of the drug's safety and effectiveness. Section 201(p)(1) of the Act defines a "new drug" to include "any drug . . . not generally recognized . . . as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling." Finding that Laetrile, in proper dosages, was nontoxic and effective, the District Court ordered the Government to permit limited purchases of the drug by one of the named plaintiffs. While not disturbing the injunction, the Court of Appeals instructed the District Court to remand the case to the Food and Drug Administration (FDA) for determination whether Laetrile was a "new drug" under § 201(p)(1), and, if so, whether it was exempt from premarketing approval under either of the Act's two grandfather clauses. After completion of administrative hearings, the Commissioner of the FDA found that Laetrile constituted a "new drug" as defined in § 201(p)(1) and fell within neither grandfather provision. On review of the Commissioner's decision, the District Court concluded that Laetrile was entitled to an exemption from premarketing approval under the Act's 1962 grandfather clause and, alternatively, that the Commissioner had infringed constitutionally protected privacy interests by denying cancer patients access to Laetrile. The Court of Appeals, without addressing either the statutory or constitutional rulings of the District Court, held that the Act's "safety" and "effectiveness" standards have "no reasonable application" to terminally ill cancer patients and approved intravenous injections of Laetrile for such individuals.
Held: The Act makes no express exception for drugs used by the terminally ill and no implied exemption is necessary to attain congressional objectives or to avert an unreasonable reading of the terms "safe" and "effective" in § 201(p)(1). Pp. 551-559. (a) Nothing in the legislative history suggests that Congress intended protection only for persons suffering from curable diseases. Moreover, in implementing the statutory scheme, the FDA has never exempted drugs used by the terminally ill. The construction of a statute by those charged with its administration is entitled to substantial deference particularly where, as here, an agency's interpretation involves issues of considerable public controversy, and Congress has not acted to correct any misperception of its statutory objectives. Pp. 552-554.
(b) The Court of Appeals erred in concluding that the safety and effectiveness standards of § 201(p)(1) could have "no reasonable application" to terminal patients. For purposes of § 201(p)(1), the effectiveness of a drug does not necessarily denote capacity to cure; in the treatment of any illness, terminal or otherwise, a drug is effective if it fulfills, by objective indices, its sponsor's claims of prolonged life, improved physical condition, or reduced pain. Nor is the concept of safety under § 201(p)(1) without meaning for terminal patients; a drug is unsafe for the terminally ill, as for anyone else, if its potential for inflicting death or physical injury is not offset by the possibility of therapeutic benefit. Finally, construing § 201(p)(1) to encompass treatments for terminal diseases does not foreclose all resort to experimental cancer drugs by patients for whom conventional therapy is unavailing. That § 505(i) of the Act makes explicit provision for carefully regulated use of certain drugs not yet demonstrated to be safe and effective reinforces the conclusion that no exception for terminal patients may be judicially implied. Pp. 554-559.
582 F.2d 1234, reversed and remanded.
Wade H. McCree, Jr., Sol. Gen., Washington, D. C., for petitioners.
Kenneth Ray Coe, Oklahoma City, Okl., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The question presented in this case is whether the Federal Food, Drug, and Cosmetic Act precludes terminally ill cancer patients from obtaining Laetrile, a drug not recognized as "safe and effective" within the meaning of § 201(p)(1) of the Act, 52 Stat. 1041, as amended, 21 U.S.C. § 321(p)(1).
2
* Section 505 of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1052, as amended, 21 U.S.C. § 355, prohibits interstate distribution of any "new drug" unless the Secretary of Health, Education, and Welfare approves an application supported by substantial evidence of the drug's safety and effectiveness.1 As defined in § 201(p)(1) of the Act, 21 U.S.C. § 321(p)(1), the term "new drug" includes
3
"[a]ny drug . . . not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling . . . ." Exemptions from premarketing approval procedures are available for drugs intended solely for investigative use2 and drugs qualifying under either of the Act's two grandfather provisions.3
4
In 1975, terminally ill cancer patients and their spouses brought this action to enjoin the Government from interfering with the interstate shipment and sale of Laetrile, a drug not approved for distribution under the Act.4 Finding that Laetrile, in proper dosages, was nontoxic and effective, the District Court ordered the Government to permit limited purchases of the drug by one of the named plaintiffs. 399 F. Supp. 1208, 1215 (WD Okl. 1975).5 On appeal by the Government, the Court of Appeals for the Tenth Circuit did not disturb the injunction. However, it instructed the District Court to remand the case to the Food and Drug Administration for determination whether Laetrile was a "new drug" under § 201(p)(1), and, if so, whether it was exempt from premarketing approval under either of the Act's grandfather clauses. 542 F.2d 1137 (1976).
5
After completion of administrative hearings,6 the Commissioner issued his opinion on July 29, 1977. 42 Fed.Reg. 39768 (1977). He determined first that no uniform definition of Laetrile exists; rather, the term has been used generically for chemical compounds similar to, or consisting at least in part of, amygdalin, a glucoside present in the kernels or seeds of most fruits. Id., at 39770-39772. The Commissioner further found that Laetrile in its various forms constituted a "new drug" as defined in § 201(p)(1) of the Act because it was not generally recognized among experts as safe and effective for its prescribed use. See 42 Fed.Reg. 39775-39787 (1977). In so ruling, the Commissioner applied the statutory criteria delineated in Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 629-630, 73 S.Ct. 2469, 2483, 37 L.Ed.2d 207 (1973), and concluded that there were no adequate well-controlled scientific studies of Laetrile's safety or effectiveness. 42 Fed.Reg. 39775-39787 (1977).7
6
Having determined that Laetrile was a new drug, the Commissioner proceeded to consider whether it was exempt from premarketing approval under the 1938 or 1962 grandfather provisions. On the facts presented, the Commissioner found that Laetrile qualified under neither clause. See id., at 39787-39795. First, there was no showing that the drug currently known as Laetrile was identical in composition or labeling to any drug distributed before 1938. See 21 U.S.C. § 321(p)(1); n. 3, supra. Nor could the Commissioner conclude from the evidence submitted that, as of October 9, 1962, Laetrile in its present chemical composition was commercially used or sold in the United States, was generally recognized by experts as safe, and was labeled for the same recommended uses as the currently marketed drug. See § 107(c)(4), 76 Stat. 789; n. 3, supra.
7
On review of the Commissioner's decision, the District Court sustained his determination that Laetrile, because not generally regarded as safe or effective, constituted a new drug under § 201(p)(1). 438 F.Supp. 1287, 1293-1294 (WD Okl. 1977). The court also approved the Commissioner's denial of an exemption under the 1938 grandfather clause. However, concluding that the record did not support the Commissioner's findings as to the 1962 grandfather provision, the District Court ruled that Laetrile was entitled to an exemption from premarketing approval requirements. Id., at 1294-1298. Alternatively, the court held that, by denying cancer patients the right to use a nontoxic substance in connection with their personal health, the Commissioner had infringed constitutionally protected privacy interests. Id., at 1298-1300.
8
The Court of Appeals addressed neither the statutory nor the constitutional rulings of the District Court. Rather, the Tenth Circuit held that "the 'safety' and 'effectiveness' terms used in the statute have no reasonable application to terminally ill cancer patients." 582 F.2d 1234, 1236 (1978). Since those patients, by definition, would "die of cancer regardless of what may be done," the court concluded that there were no realistic standards against which to measure the safety and effectiveness of a drug for that class of individuals. Id., at 1237. The Court of Appeals therefore approved the District Court's injunction permitting use of Laetrile by cancer patients certified as terminally ill. However, presumably because the Commissioner had found some evidence that Laetrile was toxic when orally administered, see 42 Fed.Reg. 39786-39787 (1977), the Court of Appeals limited relief to intravenous injections for patients under a doctor's supervision. 582 F.2d, at 1237. In addition, the court directed the FDA to promulgate regulations "as if" the drug had been found " 'safe' and 'effective' " for terminally ill cancer patients. Ibid.
9
We granted certiorari, 439 U.S. 1127, 99 S.Ct. 1042, 59 L.Ed.2d 87 (1979), and now reverse.
II
10
The Federal Food, Drug, and Cosmetic Act makes no special provision for drugs used to treat terminally ill patients. By its terms, § 505 of the Act requires premarketing approval for "any new drug" unless it is intended solely for investigative use or is exempt under one of the Act's grandfather provisions. See nn. 2, 3, supra. And § 201(p)(1) defines "new drug" to encompass "[a]ny drug . . . not generally recognized . . . as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling." See supra, at 546-547.
11
When construing a statute so explicit in scope, a court must act within certain well-defined constraints. If a legislative purpose is expressed in "plain and unambiguous language, . . . the . . . duty of the courts is to give it effect according to its terms." United States v. Lexington Mill & Elevator Co., 232 U.S. 399, 409, 34 S.Ct. 337, 340, 58 L.Ed. 658, 662 (1914). See Andrus v. Sierra Club, 442 U.S. 347, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). Exceptions to clearly delineated statutes will be implied only where essential to prevent "absurd results" or consequences obviously at variance with the policy of the enactment as a whole. Helvering v. Hammel, 311 U.S. 504, 510-511, 61 S.Ct. 368, 371, 85 L.Ed. 303 (1941). See TVA v. Hill, 437 U.S. 153, 187-188, 98 S.Ct. 2279, 2298, 57 L.Ed.2d 117 (1978); United States v. Key, 397 U.S. 322, 324-325, 90 S.Ct. 1049, 1051, 25 L.Ed.2d 340 (1970); United States v. American Trucking Assns., 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1063-1064, 84 L.Ed. 1345 (1940). In the instant case, we are persuaded by the legislative history and consistent administrative interpretation of the Act that no implicit exemption for drugs used by the terminally ill is necessary to attain congressional objectives or to avert an unreasonable reading of the terms "safe" and "effective" in § 201(p)(1).
A.
12
Nothing in the history of the 1938 Food, Drug, and Cosmetic Act, which first established procedures for review of drug safety, or of the 1962 Amendments, which added the current safety and effectiveness standards in § 201(p)(1),8 suggests that Congress intended protection only for persons suffering from curable diseases. To the contrary, in deliberations preceding the 1938 Act, Congress expressed concern that individuals with fatal illnesses, such as cancer, should be shielded from fraudulent cures. See, e. g., 79 Cong.Rec. 5023 (1935) (remarks of Sen. Copeland, sponsor of the Act); 83 Cong.Rec. 7786-7787, 7789 (1938) (remarks of Reps. Phillips and Lea). Similarly, proponents of the 1962 Amendments to the Act, including Senator Kefauver, one of the bill's sponsors, indicated an understanding that experimental drugs used to treat cancer "in its last stages" were within the ambit of the statute. See, e. g., 108 Cong.Rec. 17399 (1962) (remarks of Sen. Kefauver); id., at 17401 (comments of Sen. Eastland). That same understanding is reflected in the Committee Reports on the 1962 Amendments. Both Reports note with approval the FDA's policy of considering effectiveness when passing on the safety of drugs prescribed for "life-threatening disease."9
13
In implementing the statutory scheme, the FDA has never made exception for drugs used by the terminally ill. As this Court has often recognized, the construction of a statute by those charged with its administration is entitled to substantial deference. Board of Governors of FRS v. First Lincoln wood Corp., 439 U.S. 234, 248, 99 S.Ct. 505, 513, 58 L.Ed.2d 484 (1978); Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298, 304, 97 S.Ct. 576, 581, 50 L.Ed.2d 494 (1977); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Such deference is particularly appropriate where, as here, an agency's interpretation involves issues of considerable public controversy, and Congress has not acted to correct any misperception of its statutory objectives. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969); Zemel v. Rusk, 381 U.S. 1, 11-12, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965).10 Unless and until Congress does so, we are reluctant to disturb a longstanding administrative policy that comports with the plain language, history, and prophylactic purpose of the Act.
B
14
In the Court of Appeals' view, an implied exemption from the Act was justified because the safety and effectiveness standards set forth in § 201(p)(1) could have "no reasonable application" to terminally ill patients. 582 F.2d, at 1236. We disagree. Under our constitutional framework, federal courts do not sit as councils of revision, empowered to rewrite legislation in accord with their own conceptions of prudent public policy. See Anderson v. Wilson, 289 U.S. 20, 27, 53 S.Ct. 417, 420, 77 L.Ed. 1004 (1933). Only when a literal construction of a statute yields results so manifestly unreasonable that they could not fairly be attributed to congressional design will an exception to statutory language be judicially implied. See TVA v. Hill, 437 U.S., at 187-188, 98 S.Ct., at 2298. Here, however, we have no license to depart from the plain language of the Act, for Congress could reasonably have intended to shield terminal patients from ineffectual or unsafe drugs.
15
A drug is effective within the meaning of § 201(p)(1) if there is general recognition among experts, founded on substantial evidence, that the drug in fact produces the results claimed for it under prescribed conditions. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S., at 629-634, 93 S.Ct., at 2483-2485; n. 7, supra. Contrary to the Court of Appeals' apparent assumption, see 582 F.2d, at 1236, effectiveness does not necessarily denote capacity to cure. In the treatment of any illness, terminal or otherwise, a drug is effective if it fulfills, by objective indices, its sponsor's claims of prolonged life, improved physical condition, or reduced pain. See 42 Fed.Reg. 39776-39786 (1977).
16
So too, the concept of safety under § 201(p)(1) is not without meaning for terminal patients. Few if any drugs are completely safe in the sense that they may be taken by all persons in all circumstances without risk.11 Thus, the Commissioner generally considers a drug safe when the expected therapeutic gain justifies the risk entailed by its use.12 For the terminally ill, as for anyone else, a drug is unsafe if its potential for inflicting death or physical injury is not offset by the possibility of therapeutic benefit. Indeed, the Court of Appeals implicitly acknowledged that safety considerations have relevance for terminal cancer patients by restricting authorized use of Laetrile to intravenous injections for persons under a doctor's supervision. See 582 F.2d, at 1237; supra, at 551.
17
Moreover, there is a special sense in which the relationship between drug effectiveness and safety has meaning in the context of incurable illnesses. An otherwise harmless drug can be dangerous to any patient if it does not produce its purported therapeutic effect. See 107 Cong.Rec. 5640 (1961) (comments of Sen. Kefauver). But if an individual suffering from a potentially fatal disease rejects conventional therapy in favor of a drug with no demonstrable curative properties, the consequences can be irreversible.13 For this reason, even before the 1962 Amendments incorporated an efficacy standard into new drug application procedures, the FDA considered effectiveness when reviewing the safety of drugs used to treat terminal illness. See nn. 8, 9, supra. The FDA's practice also reflects the recognition, amply supported by expert medical testimony in this case, that with diseases such as cancer it is often impossible to identify a patient as terminally ill except in retrospect.14 Cancers vary considerably in behavior and in responsiveness to different forms of therapy. See 42 Fed.Reg. 39777 (1977).15 Even critically ill individuals may have unexpected remissions and may respond to conventional treatment. Id., at 39777, 39805. Thus, as the Commissioner concluded, to exempt from the Act drugs with no proved effectiveness in the treatment of cancer "would lead to needless deaths and suffering among . . . patients characterized as 'terminal' who could actually be helped by legitimate therapy." Id., at 39805.
18
It bears emphasis that although the Court of Appeals' ruling was limited to Laetrile, its reasoning cannot be so readily confined. To accept the proposition that the safety and efficacy standards of the Act have no relevance for terminal patients is to deny the Commissioner's authority over all drugs, however toxic or ineffectual, for such individuals. If history is any guide, this new market would not be long overlooked. Since the turn of the century, resourceful entrepreneurs have advertised a wide variety of purportedly simple and painless cures for cancer, including liniments of turpentine, mustard, oil, eggs, and ammonia; peat moss; arrangements of colored floodlamps; pastes made from glycerin and limburger cheese; mineral tablets; and "Fountain of Youth" mixtures of spices, oil, and suet.16 In citing these examples, we do not, of course, intend to deprecate the sincerity of Laetrile's current proponents, or to imply any opinion on whether that drug may ultimately prove safe and effective for cancer treatment. But this historical experience does suggest why Congress could reasonably have determined to protect the terminally ill, no less than other patients, from the vast range of self-styled panaceas that inventive minds can devise.
19
We note finally that construing § 201(p)(1) to encompass treatments for terminal diseases does not foreclose all resort to experimental cancer drugs by patients for whom conventional therapy is unavailing. Section 505(i) of the Act, 21 U.S.C. § 355(i), exempts from premarketing approval drugs intended solely for investigative use if they satisfy certain preclinical testing and other criteria.17 An application for clinical testing of Laetrile by the National Cancer Institute is now pending before the Commissioner. Brief for United States 35 n. 23. That the Act makes explicit provision for carefully regulated use of certain drugs not yet demonstrated safe and effective reinforces our conclusion that no exception for terminal patients may be judicially implied. Whether, as a policy matter, an exemption should be created is a question for legislative judgment, not judicial inference.
20
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.18
21
So ordered.
1
Section 505, as set forth in 21 U.S.C. § 355, provides in part:
"(a) . . . No person shall introduce or deliver for introduction into interstate commerce any new drug, unless an approval of an application filed pursuant to subsection (b) of this section is effective with respect to such drug.
"(b) . . . Any person may file with the Secretary an application with re-
spect to any drug subject to the provisions of subsection (a) of this section. Such person shall submit to the Secretary as a part of the application (1) full reports of investigations which have been made to show whether or not such drug is safe for use and whether such drug is effective in use . . . .
* * * * *
"(d) . . . If the Secretary finds . . . that (1) the investigations . . . required to be submitted to the Secretary . . . do not include adequate tests by all methods reasonably applicable to show whether or not such drug is safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling thereof; (2) the results of such tests show that such drug is unsafe for use under such conditions or do not show that such drug is safe for use under such conditions; . . . (4) . . . he has insufficient information to determine whether such drug is safe for use under such conditions; or (5) . . . there is a lack of substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof; or (6) based on a fair evaluation of all material facts, such labeling is false or misleading in any particular; he shall issue an order refusing to approve the application. . . . As used in this subsection . . ., the term 'substantial evidence' means evidence consisting of adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved, on the basis of which it could fairly and responsibly be concluded by such experts that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling or proposed labeling thereof.
* * * * *
"(i) . . . The Secretary shall promulgate regulations for exempting from the operation of the foregoing subsections of this section drugs intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety and effectiveness of drugs. . . ."
The Secretary has delegated his approval authority to the Commissioner of the Food and Drug Administration. See 21 CFR § 5.1(a)(1) (1978).
2
The requirements for investigative use are set forth in § 505(i) of the Act, 21 U.S.C. § 355(i). See n. 1, supra.
3
In the Federal Food, Drug, and Cosmetic Act of 1938, 52 Stat. 1041, Congress exempted from the definition of "new drug" any drug that was subject to the Pure Food and Drug Act of 1906, ch. 3915, 34 Stat. 768, if its labeling retained the same representations concerning conditions of use made prior to 1938. This exemption is currently contained in § 201(p)(1) of the Act, as codified in 21 U.S.C. § 321(p)(1). The Drug Amendments of 1962 added a second grandfather clause, which provides:
"In the case of any drug which, on the day immediately preceding the enactment date [October 10, 1962], (A) was commercially used or sold in the United States, (B) was not a new drug as defined by section 201(p) of the basic Act as then in force, and (C) was not covered by an effective [new drug] application under section 505 of that Act, the amendments to section 201(p) made by this Act shall not apply to such drug when intended solely for use under conditions prescribed, recommended, or suggested in labeling with respect to such drug on that day." § 107(c)(4), 76 Stat. 789.
4
The suit was originally instituted by a cancer patient, Juanita Stowe, and her husband, Jimmie Stowe. After Ms. Stowe's death, two other patients, Glen L. Rutherford and Phyllis S. Schneider, and Ms. Schneider's husband, filed an amended complaint on behalf of a class composed of all cancer patients and spouses responsible for the costs of treatment. By order entered April 8, 1977, the District Court certified a class consisting of terminally ill cancer patients. 429 F.Supp. 506 (WD Okl.). The Government did not seek review of that order.
5
The District Court subsequently entered similar orders for other individuals who submitted affidavits averring their membership in the certified class of terminally ill cancer patients. See App. 1-6.
6
The Commissioner initiated proceedings with an announcement in the Federal Register seeking public comment. 42 Fed.Reg. 10066-10069 (1977). Notice was also afforded to certain known proponents of Laetrile. See id., at 39785-39786.
7
The Act does not define what constitutes general recognition of a drug's safety and effectiveness under § 201(p)(1). However, based on the structure and purpose of the statutory scheme, this Court in Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S., at 629-634, 93 S.Ct., at 2483-2485, interpreted § 201(p)(1) to require an "expert consensus" on safety and effectiveness founded upon "substantial evidence" as defined in § 505(d) of the Act, 21 U.S.C. § 355(d). See n. 1, supra.
8
Under the 1938 Act, a "new drug" was one not generally recognized by qualified experts as safe for its recommended use. § 201(p)(1), 52 Stat. 1041. The Drug Amendments of 1962, Pub.L. 87-781, 76 Stat. 789, redefined the term to include drugs not generally recognized as effective or safe for their intended use. § 201(p)(1), 21 U.S.C. § 321(p)(1). See supra, at 546-547,551. In addition, the Amendments provided that no new drug application may be approved absent substantial evidence that the drug is effective as well as safe under prescribed conditions. § 505(d), 21 U.S.C. § 355(d). See n. 1, supra.
9
The Senate Report states:
"The Food and Drug Administration now requires, in determining whether a 'new drug' is safe, a showing as to the drug's effectiveness where the drug is offered for use in the treatment of a life-threatening disease, or where it appears that the 'new drug' will occasionally produce serious toxic or even lethal effects so that only its usefulness would justify the risks involved in its use. In such cases, the determination of safety is, in the light of the purposes of the new drug provisions, considered by the Food and Drug Administration to be inseparable from consideration of the drug's effectiveness. The provisions of the bill are in no way intended to affect any existing authority of the Department of Health, Education, and Welfare to consider and evaluate the effectiveness of a new drug in the context of passing upon its safety." S.Rep.No.1744, 87th Cong., 2d Sess., pt. 1, p. 15 (1962), U.S.Code Cong. & Admin.News 1962, pp. 2884, 2891.
See also H.R.Rep.No.2464, 87th Cong., 2d Sess., 3 (1962).
The FDA's practice was further amplified by HEW Secretary Ribicoff in testimony on the bill that ultimately became the 1962 Amendments:
"If the drug is offered for treatment of progressive or life-threatening diseases, such as cancer, . . . we now consider its effectiveness. In such cases the determination of safety is, in the light of the purpose of the new drug provisions, inseparable from consideration of the drug's effectiveness." Hearings on S. 1552 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 87th Cong., 1st Sess., 2588 (1961).
10
To be sure, it may not always be realistic to infer approval of a judicial or administrative interpretation from congressional silence alone. See, e. g., Helvering v. Hallock, 309 U.S. 106, 119-121, 60 S.Ct. 444, 451-452, 84 L.Ed. 604 (1940); Toucey v. New York Life Ins. Co., 314 U.S. 118, 140-141, 62 S.Ct. 139, 147, 86 L.Ed. 100 (1941). But once an agency's statutory construction has been "fully brought to the attention of the public and the Congress," and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned. Apex Hosiery Co. v. Leader, 310 U.S. 469, 487-489, 60 S.Ct. 982, 988-989, 84 L.Ed. 1311 (1940). See United States v. Bergh, 352 U.S. 40, 46-47, 77 S.Ct. 106, 109-110, 1 L.Ed.2d 102 (1956). See, e. g., Pub.L. 94-295, 90 Stat. 575; Pub.L. 94-278, 90 Stat. 411; and Pub.L. 91-513, 84 Stat. 1281 (amending § 201 of the Act, 21 U.S.C. § 321).
The issue presented in this case plainly has not escaped public or legislative notice. Whether Laetrile should be freely accessible to cancer patients has been a frequent subject of political debate. Seventeen States have legalized the prescription and use of Laetrile for cancer treatment within their borders, and similar statutes have been defeated in 14 other States. See CCH F.D.Cosm.L.Rep. ¶ 42,292 (1978); Comment, Laetrile: Statutory and Constitutional Limitations on the Regulation of Ineffective Drugs, 127 U.Pa.L.Rev. 233, 234 n. 8 (1978). That Congress is aware of the FDA's policy concerning Laetrile is evident from Senate Subcommittee hearings on the Commissioner's 1977 ruling. See Hearing before the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources, 95th Cong., 1st Sess. (1977).
11
See L. Goodman & A. Gilman, The Pharmacological Basis of Therapeutics 325-339 (5th ed. 1975).
12
See statement of Dr. Theodore Klumpp, Chief, Drug Division, FDA, June 23, 1941, CCH F.D.Cosm.L.Rep. ¶ 71,053.59 (1977); n. 13, infra.
13
See, e. g., 42 Fed.Reg. 39768, 39787 (1977) (statement of Dr. Carl Leventhal, Deputy Director of the Bureau of Drugs, FDA, and Assistant Professor of Neurology and Pathology at Georgetown University) ("The safety of a drug for human use depends, in large measure, on the therapeutic effectiveness of the particular drug . . . . In the case of cancer, treatment with an ineffective drug will . . . inexorably lead to the patient's death"); ibid. (statement of Dr. George J. Hill II, Chairman of the Department of Surgery at Marshall University School of Medicine, W. Va.) (Ineffectual treatment can lead to delay in accepted modes of therapy and needless deaths; thus, "[i]n the absence of scientific evidence of effectiveness, no drug intended for use in treating cancer can be regarded as safe").
14
See, e. g., id., at 39805 (statement of Dr. Peter Wiernik, Chief of the Clinical Oncology Branch of the National Cancer Institute's Baltimore Research Center) ("[N]o one can prospectively define the term 'terminal' with any accuracy. A patient can be said to be terminal only after he dies. Many patients who are critically ill respond to modern day management of cancer"); ibid. (statement of Dr. Joseph Ross, Professor of Medicine, University of California School of Medicine at Los Angeles) ("[T]he distinction of 'terminal' patients from 'non-terminal' patients may not be reliably determined and an assumption that Laetrile may be given to ['terminal'] patients with impunity may deprive such patients of therapeutic measures which could help them").
15
The Commissioner noted that these unexpected behavior patterns may account for anecdotal claims of Laetrile's effectiveness. Users of Laetrile who experience spontaneous remissions or delayed responses to conventional therapy after its abandonment may ascribe their improvement to Laetrile without any objective basis for that attribution. See, e. g., id., at 39777 (statement of Dr. Daniel S. Martin, researcher in cancer immunology and chemotherapy); id., at 39800 (statement of Dr. Emil J. Frereich, Chief of the Division of Oncology at University of Texas Medical School at Houston); ibid. (statement of Dr. Melvin Krant, Director of Cancer Project at the University of Massachusetts Medical Center). Particularly since accepted cancer treatments such as chemotherapy and radiation often have painful side effects, the Commissioner concluded that patients who subjectively perceive improvement after substituting Laetrile for these modes of therapy may erroneously believe that their condition has been arrested or ameliorated. See id., at 39777, 39799-39800.
16
CCH Fed.F.D.Cosm.L.Admin.Reps., 1907-1949, p. 745 (1951); id., at 1408; id., at 1170-1171, 1298-1299; id., at 224; FDA Ann.Reps., 1950-1974, pp. 309, 464; id., at 45; id., at 412.
17
See n. 1, supra. At present, some 300 experimental drugs are available to critically ill cancer patients at authorized institutions. See Brief for United States 34 n. 23; National Cancer Institute, Extramural Clinical Trial Programs of the Division of Cancer Treatment, General Overview and Scope of Contract-Supported Activities (1979). During 1977, over 90,000 cancer patients participated in investigative programs under the auspices of the National Cancer Institute or the Veterans' Administration. Brief for United States 35 n. 23.
18
Respondents urge that we consider the District Court's rulings on the constitutional and grandfather clause questions as alternative bases for sustaining the judgment below. However, since the Court of Appeals addressed neither issue, we remand the case for further consideration of respondents' claims. See Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 549, 98 S.Ct. 1197, 1208, 55 L.Ed.2d 460 (1978); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 271, 97 S.Ct. 555, 566, 50 L.Ed.2d 450 (1977).
| 78
|
442 U.S. 529
99 S.Ct. 2461
61 L.Ed.2d 54
UNITED GAS PIPE LINE COMPANY, Petitioner,v.Billy J. McCOMBS et al. FEDERAL ENERGY REGULATORY COMMISSION, Petitioner, v. Billy J. McCOMBS et al.
Nos. 78-17, 78-249.
Argued Feb. 22, 1979.
Decided June 18, 1979.
Syllabus
In 1954, the Federal Power Commission, now the Federal Energy Regulatory Commission, issued a certificate of public convenience and necessity authorizing the sale to petitioner United Gas Pipe Line Co. (United) of natural gas produced from a leased tract of land. After the lease had been assigned several times and a replacement certificate issued, the lessee-producer notified United in 1966 that the existing wells were depleted and that no other gas was available at that time. Despite a warning from the Commission, the lessee never sought the Commission's authorization, pursuant to § 7(b) of the Natural Gas Act (Act), for abandoning the service in interstate commerce. The lease was subsequently assigned to a group headed by respondent McCombs, which group discovered new gas reserves underlying the tract and contracted to sell the gas to respondent E. I. du Pont de Nemours & Co. for uses in intrastate commerce. Upon learning of the renewed production, United asserted its contractual right to purchase the newly discovered gas and filed a complaint with the Commission. The Commission upheld the Administrative Law Judge's determination that the McCombs group could not divert the gas from the interstate market, because the gas had been dedicated to interstate commerce and the agency had never authorized an abandonment of service. In addition, the Commission refused to grant its approval retroactively since the supply of gas was not in fact depleted. Accordingly, the Commission ordered delivery to United of all gas derived from the tract. The Court of Appeals set aside the Commission's order, holding that "strict compliance" with § 7(b)'s approval requirement was unnecessary in this case, the abandonment having been accomplished "as a matter of law, when all of the parties recognized that the then known natural gas reserves were depleted in 1966 followed by failure to provide any service . . . for a period of five years."
Held:
1. Section 7(b) requires producers to continue supplying in interstate commerce all gas produced from a dedicated leasehold until they obtain permission for abandonment from the Commission. Pp. 535-539.
(a) Congress could not have been more explicit in establishing Commission approval as a prerequisite for lawful abandonment of service within its jurisdiction. The statutory language simply does not admit of any exception to the procedure set forth in § 7(b), as this Court's previous decisions have recognized. Pp. 535-538.
(b) The Commission's control over the continuation of service is a fundamental component of the regulatory scheme, and to deprive the Commission of this authority, even in limited circumstances, would conflict with basic policies underlying the Act. Requiring Commission approval of abandonment, "after due hearing," permits all interested parties to be heard and therefore facilitates full presentation of the facts necessary to determine whether § 7(b)'s criteria have been met. Moreover, the obligation to obtain Commission approval promotes certainty and reliability in the regulatory scheme. Pp. 538-539.
2. It need not be determined whether § 7(b) allows the Commission to approve an abandonment retroactively and disregard evidence of subsequent production, since the Commission did not abuse its discretion in declining to do so here. Given the potential for retroactive approvals to disrupt the regulatory scheme, it was within the Commission's discretion to reject allegations of good faith in failing to seek Commission approval as a sufficient justification, by itself, for determining whether the evidence available in 1966 warranted granting an abandonment. Pp. 539-541.
3. Respondents' contention that the current production of gas is not subject to § 7(b)'s requirements is without merit. The Commission properly found that the certificates of public convenience and necessity cover all reservoirs located on the tract. And initiation of interstate service pursuant to the certificates dedicated all fields subject to the certificates. California v. Southland Royalty Co., 436 U.S. 519, 525, 98 S.Ct. 1955, 1958, 56 L.Ed.2d 505. Once so dedicated, there can be no withdrawal of that supply from the interstate market absent Commission approval. Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 156, 80 S.Ct. 1392, 1403, 4 L.Ed.2d 1623. Pp. 541-543.
570 F.2d 1376, reversed.
Richard A. Allen, Dept. of Justice, Washington, D.C., for petitioner in No. 78-249.
Knox Bemis, Washington, D. C., for petitioner in No. 78-17.
Stanley L. Cunningham, Bartlesville, Okl., for respondents in both cases.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Under § 7(c) of the Natural Gas Act, producers who sell natural gas to pipelines for resale in interstate commerce must obtain a certificate of public convenience and necessity from the Federal Energy Regulatory Commission.1 Section 7(b) of the Act obligates these producers to continue supplying gas in the interstate market until the Commission authorizes an "abandonment."2 The principal issue presented by this case is whether a producer may, consistent with § 7(b), ever terminate this service obligation without obtaining the agency's express approval.
2
* The natural gas involved in this case is produced from a 163-acre tract of land located in Karnes County, Tex., and known as the Butler B tract. In 1948, the owner of this land, B. C. Butler, Sr., executed an oil and gas lease with W. R. Quin as the lessee. Quin's widow contracted in 1953 to sell petitioner United Gas Pipe Line Co. (United), for a 10-year period, all "merchantable natural gas . . . now or hereafter" produced from the Butler B tract. App. 7A. Because United was an interstate pipeline company, Ms. Quin applied to the Commission for a certificate of public convenience and necessity authorizing this sale. The certificate issued by the Commission contained neither a time limitation nor any designation of the depths from which the gas would be produced.
3
After United installed gathering facilities on the property and began receiving gas from a well 2,960 feet deep, the Butler B lease was assigned several times. H. A. Pagenkopf eventually obtained the leasehold, and in 1961, he agreed to extend the term of United's gas purchase contract through February 7, 1981. Upon Pagenkopf's application, the Commission issued a new certificate in 1963, authorizing continued service to United under the same terms as the earlier certificate. In March 1966, Pagenkopf assigned the Butler B lease to a group headed by L. H. Haring,3 and shortly thereafter, the only successful well on the property stopped producing. Haring's operator, Bay Rock Corp., notified United some months later that the existing wells were depleted and no other gas would be available at that time. United replied that it would remove its metering equipment for use elsewhere, but would reinstall the equipment "if, at some future date, you have further gas to deliver to us at the above delivery point, which will be subject to the terms of the above-captioned contract." App. 8A-9A. Despite the Commission's subsequent warning that § 7(b) required the filing of an abandonment application if no further sales were contemplated, Haring never sought the Commission's authorization for abandoning service to United.4
4
During 1971 and 1972, Haring divided the Butler B lease hold horizontally and vertically, and he assigned to a group headed by respondent McCombs a working interest in the eastern 113 acres of the tract between the depths of 6,500 and 8,653 feet. A few months later, the group acquired a similar interest in the entire Butler B tract from depths of 8,700 to 9,700 feet. Drilling to these deeper horizons, the McCombs group discovered new gas reserves.5 In 1972, they contracted to sell this gas to respondent E. I. du Pont de Nemours & Co. for industrial uses in intrastate commerce. Upon learning of the renewed production, however, United asserted its rights under the 1953 contract, as extended in 1961, to purchase all gas produced from the property. When the McCombs group rejected this claim, United filed a complaint with the Commission.
5
The Commission upheld the Administrative Law Judge's determination that the McCombs group could not sell the Butler B gas in intrastate commerce, at least through February 7, 1981. Opinion No. 740, App. to Pet. for Cert. in No. 78-17, pp. A-32 to A-33. In particular, the Commission found that the certificates issued to the group's predecessors covered all gas produced from the property, including the reserves discovered in 1971 and 1972.6 Because these predecessors had commenced deliveries pursuant to the certificates, the Commission ruled that all reserves embraced by the certificates were "dedicated" to interstate commerce and could not be diverted from that market without obtaining the agency's approval under § 7(b). Noting that it had not authorized abandonment during the 5-year interruption in service, the Commission refused to grant its approval retroactively where, as here, the supply of natural gas was not in fact depleted. Accordingly, the Commission declared the sales in intrastate commerce violative of the Act, and ordered delivery to United of all gas derived from the Butler B leasehold.7
6
A divided panel of the Court of Appeals for the Tenth Circuit set aside the Commission's order. 570 F.2d 1376 (1978).8 The court did not dispute the Commission's determination that all gas underlying the Butler B tract had been dedicated to interstate commerce. However, while acknowledging that § 7(b) expressly requires Commission approval before a producer may withdraw dedicated natural gas from the interstate market, the majority held that "strict compliance" with this requirement was unnecessary here. 570 F.2d, at 1381. In the court's view, "there was no need for the formality of a Section 7(b) hearing," ibid., because
7
"the abandonment of the service in the instant case was accomplished, as a matter of law, when all of the parties recognized that the then known natural gas reserves were depleted in 1966 followed by failure to provide any service under the certificates for a period of five years during which time there was no evidence of other estimated gas reserves recoverable from the subject leaseholds." Id., at 1382.
8
In sum, the Court of Appeals considered the facts so clear that the abandonment issue was no longer "within the expertise of the Commission." Id., at 1381. The dissenting judge found this conclusion "directly contrary to the plain terms of § 7(b)," which mandate approval by the Commission as the sole means of effectuating a valid abandonment. Id., at 1382.
9
We granted certiorari, 439 U.S. 892, 99 S.Ct. 248, 58 L.Ed.2d 237 (1978), and now reverse.
II
10
Congress could not have been more explicit in establishing Commission approval as a prerequisite for lawful abandonment of service within its jurisdiction. Section 7(b) provides:
11
"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." 52 Stat. 824, 15 U.S.C. § 717f(b).
12
Not only does the statute require companies to obtain the "approval of the Commission . . . after due hearing," but it also prohibits abandonment absent specific findings by the Commission. The language of § 7(b) simply does not admit of any exception to the statutory procedure.9
13
This plain meaning has been acknowledged in several of our previous decisions. Emphasizing that the Natural Gas Act's fundamental purpose was to assure the public a reliable supply of gas at reasonable prices, the Court noted in Atlantic Refining Co. v. Public Service Comm'n, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959), that once gas has been dedicated to interstate commerce, "there can be no withdrawal of that supply from continued interstate movement without Commission approval." Id., at 388, 389, 392, 79 S.Ct., at 1254 (emphasis added). The Court again addressed the necessity of obtaining the agency's permission in Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 80 S.Ct. 1392, 4 L.Ed.2d 1623 (1960). There, the Court upheld the Commission's authority to insist upon issuing permanent certificates of convenience and necessity, reasoning that this power was essential to prevent companies from circumventing the regulatory scheme. For if producers could demand certificates of limited duration, and thereby escape federal regulation when the certificates expire, the abandonment procedures of § 7(b) would be rendered meaningless. 364 U.S., at 142-144, 148, 80 S.Ct., at 1395-1397, 1399. Of particular importance here, the Court specifically considered the impact that depletion of gas supplies would have on a company's obligation to seek abandonment permission. Approving the Commission's practice of issuing certificates that extend beyond the expected life of a given reserve, the Court stressed:
14
"[I]f the companies, failing to find new sources of gas supply, desired to abandon service because of a depletion of supply, they would have to make proof thereof before the Commission, under § 7(b). The Commission thus, even though there may be physical problems beyond its control, [keeps] legal control over the continuation of service by the applicants." Id., at 158 n. 25, 80 S.Ct., at 1404 n. 25.
15
In short, Sunray makes clear that producers must secure Commission approval to abandon service even when there is little or no doubt that gas supplies are exhausted.
16
This Court expressed a similar understanding of the abandonment provision in United Gas Pipe Line Co. v. FPC, 385 U.S. 83, 87 S.Ct. 265, 17 L.Ed.2d 181 (1966), which upheld the Commission's determination that a company had violated § 7(b) of the Act by unilaterally abandoning jurisdictional facilities to avoid paying increased gas prices. In so holding, the Court reiterated that the "statutory necessity of prior Commission approval, with its underlying findings, cannot be escaped." 385 U.S., at 89, 87 S.Ct., at 269 (emphasis added). We reaffirmed this interpretation of § 7(b) just last Term in California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978). The lessees in Southland had dedicated to interstate commerce gas produced from a particular tract, but when the lease expired, the lessors to whom the oil and gas rights had reverted arranged to sell the remaining gas in the intrastate market. This Court held that even expiration of the lease did not terminate the obligation to continue selling the gas in interstate commerce. To conclude otherwise, we reasoned, would enable private parties to circumvent the Commission's authority over abandonments. And evasion of federal jurisdiction by this means could not be reconciled with the principle that "[o]nce the gas commenced to flow into interstate commerce from the facilities used by the lessees, § 7(b) require[s] that the Commission's permission be obtained prior to the discontinuance of 'any service rendered by means of such facilities.' " Id., at 527, 98 S.Ct., at 1960 (emphasis added).
17
Thus, we have consistently recognized that the Commission's "legal control over the continuation of service," Sunray, supra, 364 U.S., at 158 n. 25, 80 S.Ct., at 1404 n. 25, is a fundamental component of the regulatory scheme. To deprive the Commission of this authority, even in limited circumstances, would conflict with basic policies underlying the Act.
18
Requiring Commission approval, "after due hearing," permits all interested parties to be heard and therefore facilitates full presentation of the facts necessary to determine whether § 7(b)'s criteria have been met. Contrary to respondents' assumption, see Brief for Respondents 20-21, the Commission does not automatically approve abandonments whenever production has ceased. Indeed, the agency recently refused to grant an application where the producer had not adequately tested for new gas reserves.10 Had the lessees in the instant case filed an application for abandonment between 1966 and 1971, United might well have demonstrated that exploration of the leasehold had been insufficient to justify finding "the available supply of natural gas . . . depleted to the extent that the continuance of service [was] unwarranted." § 7(b). And the Commission might have concluded that production from deeper reserves or other measures to restore service were feasible. Permitting natural gas companies to bypass abandonment proceedings simply because known reserves appear depleted would obviously foreclose these factual inquiries. Consequently, the abandonment determination would rest, as a practical matter, in the producer's control, a result clearly at odds with Congress' purpose to regulate the supply and price of natural gas. See California v. Southland Royalty Co., supra, 436 U.S., at 526-527, 529-530, 98 S.Ct., at 1959-1960, 1961-1962; Sunray Mid-Continent Oil Co. v. FPC, supra, 364 U.S., at 142-147, 80 S.Ct., at 1395-1399.
19
Moreover, the obligation to obtain Commission approval promotes certainty and reliability in the regulatory scheme. Knowledge that termination of service is lawful only if authorized by the Commission enables producers, prospective assignees, and other interested parties to determine with assurance whether a particular tract remains dedicated to interstate commerce. In contrast, the Court of Appeals' test for de facto abandonment would invite speculation regarding the extent of the Commission's jurisdiction. The confusion that would inevitably result from the lack of clear standards as to when producers must seek Commission approval fortifies our conclusion that Congress intended agency supervision of all abandonments.
III
20
Respondents maintain that even if producers must always obtain Commission approval for abandonment, the decision below should nevertheless be affirmed. In their view, the Court of Appeals actually concluded that the Commission had erred as a matter of law by refusing to authorize an abandonment retroactively. Assuming this was the true purport of the decision below, we believe the Court of Appeals lacked authority to set aside the Commission's order on this ground.
21
Although respondents urged the agency to authorize an abandonment of service from Butler B, the Administrative Law Judge and the Commission rejected this suggestion in light of the clear evidence that the leasehold was still capable of production. Respondents, however, contend that because Haring acted in good faith in failing to seek agency approval, the Commission was obligated to treat their answer to United's complaint as if it were an abandonment application filed in 1966. Thus, according to respondents, the Court of Appeals was entitled to conclude that the Commission should have ignored the evidence of subsequent production and authorized an abandonment based on the evidence available in 1966.
22
We need not determine whether § 7(b) allows the Commission to approve an abandonment retroactively and disregard evidence of subsequent production.11 For the agency certainly did not abuse its discretion in declining to do so here. Authorizing abandonments retroactively would often deprive interested parties of the opportunity to be heard at a meaningful time and to present evidence on the likelihood of renewing gas production in the future. Thus, the Commission would be required to determine on a hypothetical set of facts what action it would have taken had an application been timely filed. Additionally, the jurisdictional status of all dedicated acreage would become uncertain, since the property would be subject to retroactive Commission pronouncements in the indefinite future. Frequent retroactive action would also undermine the statutory scheme by creating an incentive for producers to delay seeking agency approval in the hope that they could later establish good faith. Given this potential for disruption of § 7(b)'s approval procedure, we believe it is within the Commission's discretion to reject good faith alone as a sufficient justification for determining whether the evidence available in 1966 warranted granting an abandonment.12
IV
23
Finally, respondents defend the judgment below on the ground that only the depleted shallow reserves underlying Butler B, as opposed to the newly discovered gas, were subject to the approval requirements of § 7(b). In their view, the deliveries actually made in interstate commerce, rather than the certificates of public convenience and necessity, define the "service" that may not be abandoned without Commission approval. Although deliveries were once made from a reservoir approximately 2,900 feet deep, the "separate and distinct" gas from the deeper reservoirs was never delivered into interstate commerce. Thus, according to respondents, the current production is not subject to the requirements of § 7(b), even though the certificates of public convenience and necessity cover all reservoirs located on Butler B.13
24
Our prior decisions compel rejection of this narrow statutory interpretation. In California v. Southland Royalty Co., we expressly agreed with the Commission that the "initiation of interstate service pursuant to the certificate dedicated all fields subject to that certificate." 436 U.S., at 525, 98 S.Ct., at 1959 (emphasis added). And as the Court emphasized in Sunray Mid-Continent Oil Co. v. FPC, " 'once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval.' " 364 U.S., at 156, 80 S.Ct., at 1403, quoting Atlantic Refining Co. v. Public Service Comm'n, 360 U.S., at 389, 79 S.Ct., at 1253.14
25
Applying these principles, the Commission determined that all reserves underlying Butler B were dedicated to interstate commerce pursuant to the certificates it had issued in 1954 and 1963, see supra, at 534, and n. 6, and therefore were subject to the requirements of § 7(b). There being ample factual and legal justification for the Commission's conclusions, see Sun Oil Co. v. FPC, 364 U.S. 170, 80 S.Ct. 1388, 4 L.Ed.2d 1639 (1960), we hold that § 7(b) requires respondents to continue supplying in interstate commerce all gas produced from the leasehold until they properly obtain permission for abandonment.
The judgment of the Court of Appeals is
26
Reversed.
27
Mr. Justice STEWART took no part in the consideration or decision of these cases.
1
52 Stat. 825, as amended, 15 U.S.C. § 717f(c). See Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). Pursuant to the Department of Energy Organization Act, 91 Stat. 565, the regulatory functions at issue here were transferred from the Federal Power Commission to the Federal Energy Regulatory Commission, effective October 1, 1977.
2
Section 7(b), 52 Stat. 824, 15 U.S.C. § 717f(b), provides:
"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."
3
Although Haring advised United that he would apply to the Commission for a successor producer certificate, no application was ever filed. App. to Pet. for Cert. in No. 78-17, pp. A-6 to A-7.
4
The Secretary of the Commission wrote Bay Rock in January 1971 that it would be necessary to file an application for permission to abandon service and a notice of cancellation of rate schedule. Id., at A-100 to A-101. This letter also directed the lessee to submit either a copy of any agreement with United canceling the gas purchase contract or a statement from United "indicating its position with respect to the proposed abandonment." Ibid. The Secretary had written a similar letter to Pagenkopf in August 1968, but he, too, failed to respond. Id., at A-97 to A-98.
5
In addition to the Butler B interests, the McCombs group also owned an interest in an adjoining tract of land. In order to operate both tracts as a single entity, the group "unitized," or combined, their interests in Butler B with those in the corresponding depths of the adjacent tract. As a result, a fraction of the production from each of four successful wells located on the total unitized acreage is attributable to the Butler B leasehold for purposes of the gas purchase contract and the Commission's certificates. Id., at A-8 to A-10. See generally 6 H. Williams & C. Meyers, Oil & Gas Law 2-3 (1977 ed.)
6
In determining the scope of Pagenkopf's certificate, the Commission analyzed separately the depths covered and the duration of the obligation to sell gas in interstate commerce. The Commission based its conclusion that the certificates encompassed all reservoirs on the absence of any reference to particular depths in either the applications for certification, which incorporated the contract with United, or in the certificates issued Pagenkopf and Ms. Quin. App. to Pet. for Cert. in No. 78-17, pp. A-29 to A-35. Referring to these same documents, the Commission interpreted Pagenkopf's certificate to encompass all gas produced from wells drilled before the contract's expiration date, even if the gas is extracted after February 7, 1981. Ibid. However, the Commission refused to consider whether the certificate also covered gas produced from wells drilled after the contract's expiration date. Id., at A-33, and n. 28; see Sun Oil Co. v. FPC, 364 U.S. 170, 80 S.Ct. 1388, 4 L.Ed.2d 1639 (1960). Since the parties have not challenged here these findings on duration, we express no view on the Commission's ruling concerning production beyond 1981.
7
The Commission did not address the validity of United's gas purchase contract. McCombs has raised that issue in a separate suit, which is being held in abeyance pending completion of this litigation. McCombs v. United Gas Pipe Line Co., No. SA-73-CA-210 (W.D.Tex., filed Aug. 2, 1973).
8
The Court of Appeals rendered this decision on rehearing after withdrawing an earlier opinion by a different panel. See 542 F.2d 1144 (1976).
9
Although Congress has recently revised the federal scheme for regulating natural gas, see the Natural Gas Policy Act of 1978, 92 Stat. 3351, that legislation does not affect the outcome of this case. With certain exceptions not relevant here, gas reserves dedicated to interstate commerce before November 8, 1978, remain subject to § 7(b) of the Natural Gas Act. See §§ 2(18), 104, 106(a), and 601(a) of the Natural Gas Policy Act, 92 Stat. 3354, 3362, 3365, 3409, 15 U.S.C. §§ 3301(18), 3314, 3316(a), 3431(a) (1976 ed., Supp.III); S.Conf.Rep.No.95-1126, pp. 71-72, 82, 84-85, 123-124 (1978); H.R.Conf.Rep.No.95-1752, pp. 71-72, 82, 84-85, 123-124 (1978), U.S.Code Cong. & Admin.News 1978, pp. 8800, 8983.
10
See Texaco, Inc., FERC Docket Nos. G-8820 et al., Order Granting Petition for Reconsideration and Modifying Prior Order (Nov. 1, 1977).
11
Respondents contend that the Commission recently approved a retroactive § 7(b) abandonment in Arkansas Louisiana Gas Co., FPC Docket No. CP76-329 (Mar. 8, 1977). In that case, a certificated pipeline had agreed to sell excess gas, but its supply became depleted in 1971. Although the pipeline did not seek abandonment permission until 1977, the Commission approved the abandonment because the supply of excess gas was still depleted and there was no likelihood of obtaining additional gas. The agency's decision therefore had no retroactive impact.
12
Relying on four lower court decisions that did not involve § 7(b), respondents argue that the Commission was required to approve abandonment retroactively here. None of these cases, however, supports respondents' contention that the Commission abused its discretion in this suit. In Ellwood City v. FERC, 583 F.2d 642 (CA3 1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1423, 59 L.Ed.2d 634 (1979), and Niagara Mohawk Power Corp. v. FPC, 126 U.S.App.D.C. 376, 379 F.2d 153 (1967), the Courts of Appeals found no abuse of discretion in the Commission's decision to give retroactive effect to certain rate schedules and licensing orders. Accordingly, neither decision addresses whether the Commission was required to exercise its discretion in this manner. Moreover, retrospective action was taken in Niagara Mohawk to prevent the utility from benefiting by its failure to comply with the law, a consideration that militates against granting retroactive approval in the instant action.
Plaquemines Oil & Gas Co. v. FPC, 146 U.S.App.D.C. 287, 450 F.2d 1334 (1971), merely held that once the Commission chooses "to regard as being done that which should have been done," id., at 290, 450 F.2d, at 1337, it must apply this principle consistently within the same case. Finally, Highland Resources, Inc. v. FPC, 537 F.2d 1336 (CA5 1976), involved a producer that, relying on a published order of the Commission, failed to submit certain rate applications. After the agency changed its filing requirements, the producer promptly tendered the appropriate papers. The Commission nevertheless refused to give the application retroactive effect. The Court of Appeals set aside this aspect of the Commission's order, holding that a producer should not be penalized for its reliance on the agency's own pronouncements. There was no such reliance, however, in the present litigation. See n. 4, supra.
13
Since the Commission and lower federal courts have held that § 7(b) prohibits abandonment of service without agency approval even where the producer has not obtained a certificate, see, e. g., Cumberland Natural Gas Co., 34 F.P.C. 132 (1965); Mesa Petroleum Co. v. FPC, 441 F.2d 182 (CA5, 1971), respondents contend that § 7(b)'s reference to "service rendered" can never be measured by the certificate of public convenience and necessity. See n. 2, supra. Respondents, however, misperceive the basis for these decisions. Because a company may not circumvent the regulatory scheme by failing to comply with the certification requirement, the Commission must, in such cases, rely on sources other than a certificate to ascertain the scope of a dedication in interstate commerce. These cases obviously do not preclude the agency from referring to certificates when they exist.
14
The agency's decisions have reflected a similar understanding of § 7(b). For example, in Cumberland Natural Gas Co., supra, where the producer had not yet obtained a certificate of convenience and necessity, the Commission held that "dedication of reserves for sale in interstate commerce occur[red] at least as soon as deliveries commenc[ed]" from any part of the 9,000-acre leasehold contractually committed to an interstate pipeline. 34 F.P.C., at 136. Accordingly, the agency required that all gas subsequently produced from the entire dedicated leasehold, even if discovered after the dedication, be sold in interstate commerce until the Commission approved an abandonment. Id., at 136-137. See also Pioneer Gathering System, Inc., 23 F.P.C. 260, 263 (1960); Murphy Oil Corp. v. FERC, 589 F.2d 944 (CA8 1978); Mitchell Energy Corp. v. FPC, 533 F.2d 258 (CA5 1976).
| 89
|
442 U.S. 753
99 S.Ct. 2586
61 L.Ed.2d 235
State of ARKANSAS, Petitioner,v.Lonnie James SANDERS.
No. 77-1497.
Argued Feb. 27, 1979.
Decided June 20, 1979.
Syllabus
Acting on an informant's information that respondent, upon arriving at an airport, would be carrying a green suitcase containing marihuana, Little Rock, Ark., police officers placed the airport under surveillance. They watched as respondent retrieved a green suitcase from the airline baggage service, placed it into the trunk of a taxi, and entered the vehicle with a companion. When the taxi drove away, two of the officers gave pursuit and stopped the vehicle several blocks from the airport, requesting the taxi driver to open the vehicle's trunk. Without asking the permission of respondent or his companion, the police opened the unlocked suitcase and discovered marihuana. Before trial in state court on a charge of possession of marihuana with intent to deliver, respondent moved to suppress the evidence obtained from the suitcase, contending that the search violated his rights under the Fourth and Fourteenth Amendments. The trial court denied the motion and respondent was convicted. The Arkansas Supreme Court reversed, ruling that the marihuana should have been suppressed because it was obtained through an unlawful search of the suitcase.
Held: In the absence of exigent circumstances, police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband. Cf. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538. Pp. 757-766.
(a) In the ordinary case, a search of private property must be both reasonable and pursuant to a properly issued search warrant. The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment. P. 758.
(b) The "automobile exception" from the warrant requirement, as set forth in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and its progeny, will not be extended to the warrantless search of one's personal luggage merely because it was located in an automobile lawfully stopped by the police. Luggage is a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy. Once police have seized a suitcase from an automobile, the extent of its mobility is in no way affected by the place from which it was taken; accordingly, as a general rule there is no greater need for warrantless searches of luggage taken from automobiles than of luggage taken from other places. Similarly, a suitcase taken from an automobile stopped on the highway is not necessarily attended by any lesser expectation of privacy than is associated with luggage taken from other locations. Where—as in the present case—the police, without endangering themselves or risking loss of the evidence, lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay the search thereof until after judicial approval has been obtained. Pp. 761-766.
262 Ark. 595, 559 S.W.2d 704, affirmed.
Joseph H. Purvis, Little Rock, Ark., for petitioner, pro hac vice.
Jack T. Lassiter, Little Rock, Ark., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case presents the question whether, in the absence of exigent circumstances, police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband. We took this case by writ of certiorari to the Supreme Court of Arkansas to resolve some apparent misunderstanding as to the application of our decision in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), to warrantless searches of luggage seized from automobiles.1
2
* On April 23, 1976, Officer David Isom of the Little Rock, Ark., Police Department received word from an informant that at 4:35 that afternoon respondent would arrive aboard an American Airlines flight at gate No. 1 of the Municipal Airport of Little Rock. According to the informant, respondent would be carrying a green suitcase containing marihuana. Both Isom and the informant knew respondent well, as in January 1976 the informant had given the Little Rock Police Department information that had led to respondent's arrest and conviction for possession of marihuana. Acting on the tip, Officer Isom and two other police officers placed the airport under surveillance. As the informant had predicted, respondent duly arrived at gate No. 1. The police watched as respondent deposited some hand luggage in a waiting taxicab, returned to the baggage claim area, and met a man whom police subsequently identified as David Rambo. While Rambo waited, respondent retrieved from the airline baggage service a green suitcase matching that described by the informant. Respondent gave this suitcase to his companion and went outside, where he entered the taxi into which he had put his luggage. Rambo waited a short while in the airport and then joined respondent in the taxi, after placing the green suitcase in the trunk of the vehicle.
3
When respondent's taxi drove away carrying respondent, Rambo, and the suitcase, Officer Isom and one of his fellow officers gave pursuit and, with the help of a patrol car, stopped the vehicle several blocks from the airport. At the request of the police, the taxi driver opened the trunk of his vehicle, where the officers found the green suitcase. Without asking the permission of either respondent or Rambo, the police opened the unlocked suitcase and discovered what proved to be 9.3 pounds of marihuana packaged in 10 plastic bags.
4
On October 14, 1976, respondent and Rambo were charged with possession of marihuana with intent to deliver in violation of Ark.Stat.Ann. § 82-2617 (1976).2 Before trial, respondent moved to suppress the evidence obtained from the suitcase, contending that the search violated his rights under the Fourth and Fourteenth Amendments. The trial court held a hearing on January 31, 1977, and denied the suppression motion without explanation. After respondent's conviction by a jury on February 3, 1977, he was sentenced to 10 years in prison and was fined $15,000.
5
On appeal the Supreme Court of Arkansas reversed respondent's conviction, ruling that the trial court should have suppressed the marihuana because it was obtained through an unlawful search of the suitcase. 262 Ark. 595, 559 S.W.2d 704 (1977). Relying upon United States v. Chadwick, supra, and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the court concluded that a warrantless search generally must be supported by "probable cause coupled with exigent circumstances." 262 Ark., at 599, 559 S.W.2d, at 706. In the present case, the court found there was ample probable cause for the police officers' belief that contraband was contained in the suitcase they searched. The court found to be wholly lacking, however, any exigent circumstance justifying the officers' failure to secure a warrant for the search of the luggage. With the police in control of the automobile and its occupants, there was no danger that the suitcase and its contents would be rendered unavailable to due legal process. The court concluded, therefore, that there was "nothing in this set of circumstances that would lend credence to an assertion of impracticality in obtaining a search warrant." Id., at 600, 559 S.W.2d, at 706.3
II
6
Although the general principles applicable to claims of Fourth Amendment violations are well settled, litigation over requests for suppression of highly relevant evidence continues to occupy much of the attention of courts at all levels of the state and federal judiciary. Courts and law enforcement officials often find it difficult to discern the proper application of these principles to individual cases, because the circumstances giving rise to suppression requests can vary almost infinitely. Moreover, an apparently small difference in the factual situation frequently is viewed as a controlling difference in determining Fourth Amendment rights. The present case presents an example. Only two Terms ago, we held that a locked footlocker could not lawfully be searched without a warrant, even though it had been loaded into the trunk of an automobile parked at a curb. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In earlier cases, on the other hand, the Court sustained the constitutionality of warrantless searches of automobiles and their contents under what has become known as the "automobile exception" to the warrant requirement. See, e. g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). We thus are presented with the task of determining whether the warrantless search of respondent's suitcase falls on the Chadwick or the Chambers/Carroll side of the Fourth Amendment line. Although in a sense this is a line-drawing process, it must be guided by established principles.
7
We commence with a summary of these principles. The Fourth Amendment protects the privacy and security of persons in two important ways. First, it guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In addition, this Court has interpreted the Amendment to include the requirement that normally searches of private property be performed pursuant to a search warrant issued in compliance with the Warrant Clause.4 See, e. g., Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); United States v. Chadwick, supra, 433 U.S., at 9, 97 S.Ct., at 2481; United States v. United States District Court, 407 U.S. 297, 317, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925). In the ordinary case, therefore, a search of private property must be both reasonable and pursuant to a properly issued search warrant. The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment. See United States v. United States District Court, supra. As the Court said in Coolidge v. New Hampshire, supra, 403 U.S., at 481, 91 S.Ct., at 2046:
8
"The warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow 'weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the 'well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement." The prominent place the warrant requirement is given in our decisions reflects the "basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of government." United States v. United States District Court, supra, 407 U.S., at 317, 92 S.Ct., at 2137. By requiring that conclusions concerning probable cause and the scope of a search "be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime," Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948), we minimize the risk of unreasonable assertions of executive authority. See McDonald v. United States, 335 U.S. 451, 455-456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).5
9
Nonetheless, there are some exceptions to the warrant requirement. These have been established where it was concluded that the public interest required some flexibility in the application of the general rule that a valid warrant is a prerequisite for a search. See United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976). Thus, a few "jealously and carefully drawn"6 exceptions provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate. See United States v. United States District Court, supra, 407 U.S., at 318, 92 S.Ct., at 2137. But because each exception to the warrant requirement invariably impinges to some extent on the protective purpose of the Fourth Amendment, the few situations in which a search may be conducted in the absence of a warrant have been carefully delineated and "the burden is on those seeking the exemption to show the need for it." United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951). See Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969); Katz v. United States, supra, 389 U.S., at 357, 88 S.Ct., at 514. Moreover, we have limited the reach of each exception to that which is necessary to accommodate the identified needs of society. See Mincey v. Arizona, supra, 437 U.S., at 393, 98 S.Ct., at 2414; United States v. Chadwick, 433 U.S., at 15, 97 S.Ct., at 2485; Coolidge v. New Hampshire, supra, 403 U.S., at 455, 91 S.Ct., at 2032.
10
One of the circumstances in which the Constitution does not require a search warrant is when the police stop an automobile on the street or highway because they have probable cause to believe it contains contraband or evidence of a crime. See United States v. Martinez-Fuerte, supra, 428 U.S., at 561-562, 96 S.Ct., at 3084-3085; United States v. Ortiz, 422 U.S. 891, 896, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975); Texas v. White, 423 U.S. 67, 68, 96 S.Ct. 304, 305, 46 L.Ed.2d 209 (1975). As the Court said in Carroll v. United States, 267 U.S., at 153, 45 S.Ct., at 285:
11
"[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant . . . ."7
12
There are essentially two reasons for the distinction between automobiles and other private property. First, as the Court repeatedly has recognized, the inherent mobility of automobiles often makes it impracticable to obtain a warrant. See, e. g., United States v. Chadwick, supra, at 12, 97 S.Ct., at 2484; Chambers v. Maroney, 399 U.S., at 49-50, 90 S.Ct., at 1980; Carroll v. United States, supra. In addition, the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property. See Rakas v. Illinois, 439 U.S. 128, 155, 99 S.Ct. 421, 436, 58 L.Ed.2d 387 (1978) (POWELL, J., concurring); United States v. Chadwick, supra; South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion); Cady v. Dombrowski, 413 U.S. 433, 441-442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 2541, 37 L.Ed.2d 596 (1973) (POWELL, J., concurring).
III
13
In the present case, the State argues that the warrantless search of respondent's suitcase was proper under Carroll and its progeny.8 The police acted properly—indeed commendably—in apprehending respondent and his luggage. They had ample probable cause to believe that respondent's green suitcase contained marihuana. A previously reliable informant had provided a detailed account of respondent's expected arrival at the Little Rock Airport, which account proved to be accurate in every detail, including the color of the suitcase in which respondent would be carrying the marihuana. Having probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping the vehicle, searching it on the spot, and seizing the suitcase they suspected contained contraband. See Chambers v. Maroney, supra, 399 U.S., at 52, 90 S.Ct., at 1981. At oral argument, respondent conceded that the stopping of the taxi and the seizure of the suitcase were constitutionally unobjectionable. See Tr. of Oral Arg. 30, 44-46.
14
The only question, therefore, is whether the police, rather than immediately searching the suitcase without a warrant, should have taken it, along with respondent, to the police station and there obtained a warrant for the search. A lawful search of luggage generally may be performed only pursuant to a warrant. In Chadwick, we declined an invitation to extend the Carroll exception to all searches of luggage, noting that neither of the two policies supporting warrantless searches of automobiles applies to luggage. Here, as in Chadwick, the officers had seized the luggage and had it exclusively within their control at the time of the search. Consequently, "there was not the slightest danger that [the luggage] or its contents could have been removed before a valid search warrant could be obtained." 433 U.S., at 13, 97 S.Ct., at 2484. And, as we observed in that case, luggage is a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy. Ibid.
15
The State argues, nevertheless, that the warrantless search of respondent's suitcase was proper, not because the property searched was luggage, but rather because it was taken from an automobile lawfully stopped and searched on the street. In effect, the State would have us extend Carroll to allow warrantless searches of everything found within an automobile, as well as of the vehicle itself. As noted above, the Supreme Court of Arkansas found our decision in Chadwick virtually controlling in this case.9 The State contends, however, that Chadwick does not control because in that case the vehicle had remained parked at the curb where the footlocker had been placed in its trunk and that therefore no argument was made that the "automobile exception" was applicable. This Court has not had occasion previously to rule on the constitutionality of a warrantless search of luggage taken from an automobile lawfully stopped. Rather, the decisions to date have involved searches of some integral part of the automobile. See, e. g., South Dakota v. Opperman, supra, 428 U.S., at 366, 96 S.Ct., at 3095 (glove compartment); Texas v. White, 423 U.S., at 68, 96 S.Ct., at 305 (passenger compartment); Cady v. Dombrowski, supra, 413 U.S., at 437, 93 S.Ct., at 2526 (trunk); Chambers v. Maroney, supra, 399 U.S., at 44, 90 S.Ct., at 1977 (concealed compartment under the dashboard); Carroll v. United States, 267 U.S., at 136, 45 S.Ct., at 281 (behind the upholstering of the seats).
16
We conclude that the State has failed to carry its burden of demonstrating the need for warrantless searches of luggage properly taken from automobiles. A closed suitcase in the trunk of an automobile may be as mobile as the vehicle in which it rides. But as we noted in Chadwick, the exigency of mobility must be assessed at the point immediately before the search—after the police have seized the object to be searched and have it securely within their control.10 See 433 U.S., at 13, 97 S.Ct., at 2484. Once police have seized a suitcase, as they did here, the extent of its mobility is in no way affected by the place from which it was taken.11 Accordingly as a general rule there is no greater need for warrantless searches of luggage taken from automobiles than of luggage taken from other places.12
17
Similarly, a suitcase taken from an automobile stopped on the highway is not necessarily attended by any lesser expectation of privacy than is associated with luggage taken from other locations. One is not less inclined to place private, personal possessions in a suitcase merely because the suitcase is to be carried in an automobile rather than transported by other means or temporarily checked or stored. Indeed, the very purpose of a suitcase is to serve as a repository for personal items when one wishes to transport them.13 Accordingly, the reasons for not requiring a warrant for the search of an automobile do not apply to searches of personal luggage taken by police from automobiles. We therefore find no justification for the extension of Carroll and its progeny to the warrantless search of one's personal luggage merely because it was located in an automobile lawfully stopped by the police.14
18
In sum, we hold that the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree it applies to such luggage in other locations. Thus, insofar as the police are entitled to search such luggage without a warrant, their actions must be justified under some exception to the warrant requirement other than that applicable to automobiles stopped on the highway. Where—as in the present case the police, without endangering themselves or risking loss of the evidence, lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay the search thereof until after judicial approval has been obtained. In this way, constitutional rights of suspects to prior judicial review of searches will be fully protected.
19
The judgment of the Arkansas Supreme Court is
20
Affirmed.
21
Mr. Chief Justice BURGER, with whom Mr. Justice STEVENS joins, concurring in the judgment.
22
I concur in the Court's judgment but cannot join its unnecessarily broad opinion, which seems to treat this case as if it involved the "automobile" exception to the warrant requirement. It is not such a case.
23
Because the police officers had probable cause to believe that respondent's green suitcase contained marihuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The essence of our holding in Chadwick is that there is a legitimate expectation of privacy in the contents of a trunk or suitcase accompanying or being carried by a person; that expectation of privacy is not diminished simply because the owner's arrest occurs in a public place. Whether arrested in a hotel lobby, an airport, a railroad terminal, or on a public street, as here, the owner has the right to expect that the contents of his luggage will not, without his consent, be exposed on demand of the police. If not carrying contraband, many persons arrested in such circumstances might choose to consent to a search of their luggage to obviate any delay in securing their release. But even if wholly innocent, some persons might well prefer not to have the contents of their luggage exposed in a public place. They may stand on their right to privacy and require a search warrant. The warrant requirement is not so onerous as to command suspension of Fourth Amendment guarantees once the receptacle involved is securely in the control of the police, as it was here after Sanders' arrest.
24
The breadth of the Court's opinion and its repeated references to the "automobile" from which respondent's suitcase was seized at the time of his arrest, however, might lead the reader to believe—as the dissenters apparently do—that this case involves the "automobile" exception to the warrant requirement. See ante, at 762-765, and n. 14. It does not. Here, as in Chadwick, it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent's arrest does not turn this into an "automobile" exception case. The Court need say no more.
25
This case simply does not present the question of whether a warrant is required before opening luggage when the police have probable cause to believe contraband is located somewhere in the vehicle, but when they do not know whether, for example, it is inside a piece of luggage in the trunk, in the glove compartment, or concealed in some part of the car's structure. I am not sure whether that would be a stronger or weaker case for requiring a warrant to search the suitcase when a warrantless search of the automobile is otherwise permissible. But it seems to me it would be better to await a case in which the question must be decided.
26
The dissent complains that the Court does not adopt a "clear" rule, presumably one capable of resolving future Fourth Amendment litigation. That is not cause for lament, however desirable it might be to fashion a universal prescription governing the myriad Fourth Amendment cases that might arise. We are construing the Constitution, not writing a statute or a manual for law enforcement officers. My disagreement with the Court's opinion is very different from that of the dissenters. Our institutional practice, based on hard experience, generally has been to refrain from deciding questions not presented by the facts of a case; there are risks in formulating constitutional rules broader than required by the facts to which they are applied. See Ashwander v. TVA, 297 U.S. 288, 346-348, 56 S.Ct. 466, 482-483, 80 L.Ed. 688 (1936).
27
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, dissenting.
28
This case illustrates the difficulties and confusion that United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), has spawned and will continue to spawn. For reasons stated in dissent in Chadwick, id., at 18-22 and 24, 97 S.Ct., at 2487-2489 and 2490, I continue to feel that that decision was wrong.
29
The Court today goes farther down the Chadwick road, undermines the automobile exception, and, while purporting to clarify the confusion occasioned by Chadwick, creates, in my view, only greater difficulties for law enforcement officers, for prosecutors, for those suspected of criminal activity, and, of course, for the courts themselves. Still hanging in limbo, and probably soon to be litigated, are the briefcase, the wallet, the package, the paper bag, and every other kind of container.
30
I am unpersuaded by the Court's casual statement, ante, at 762 n. 9, that Chadwick and this case are factually similar "in several critical respects." Even accepting Chadwick as good law, which I do not, this, for me, is a different case. In Chadwick, the defendants were arrested, and a 200-pound, double-locked footlocker was seized, as the locker was being loaded into the open trunk of a stationary automobile. The relationship between the footlocker and the vehicle was sufficiently attenuated that the Government chose not to argue in this Court that the automobile exception applied. 433 U.S., at 11, 97 S.Ct., at 2483. Here, in contrast, the Little Rock police stopped a taxicab on a busy highway at the height of late afternoon traffic. They had probable cause to believe the taxi contained contraband narcotics. They opened the trunk, and briefly examined the contents of a small unlocked suitcase inside. The State has vigorously contended throughout these proceedings that the warrantless search of the trunk and the unlocked suitcase was constitutionally permissible under the automobile exception.1
31
I fully agree. If "contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant," Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), then, in my view, luggage and similar containers found in an automobile may be searched for contraband without a warrant. The luggage, like the automobile transporting it, is mobile. And the expectation of privacy in a suitcase found in the car is probably not significantly greater than the expectation of privacy in a locked glove compartment or trunk.
32
To be sure, as the dissent acknowledged in Chadwick, 433 U.S., at 19, 97 S.Ct., at 2487, impounding the luggage without searching it would be a less intrusive alternative than searching it on the spot. But this Court has not distinguished between the "lesser" intrusion of a seizure and the "greater" intrusion of a search, either with respect to automobiles, Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970), or with respect to persons subject to custodial arrest. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973).2 And I see no reason to impose such a distinction here. Given the significant encroachment on privacy interests entailed by a seizure of personal property, the additional intrusion of a search may well be regarded as incidental. Moreover, the additional protection provided by a search warrant will be minimal. Since the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routinely forthcoming in the overwhelming majority of cases. Finally, the carving out of a special warrant requirement for one type of personal property, but not for others, will impose untoward costs on the criminal justice systems of this country in terms of added delay and uncertainty.3
33
The impractical nature of the Court's line drawing is brought into focus if one places himself in the position of the policeman confronting an automobile that properly has been stopped. In approaching the vehicle and its occupants, the officer must divide the world of personal property into three groups. If there is probable cause to arrest the occupants, then under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), he may search objects within the occupants' immediate control, with or without probable cause. If there is probable cause to search the automobile itself, then under Carroll and Chambers the entire interior area of the automobile may be searched, with or without a warrant. But under Chadwick and the present case, if any suitcase-like object is found in the car outside the immediate control area of the occupants, it cannot be searched, in the absence of exigent circumstances without a warrant.
34
The inherent opaqueness of these "principles" in terms of the policies underlying the Fourth and Fourteenth Amendments, and the confusion to be created for all concerned, are readily illustrated. Suppose a portable luggage-container-rack is affixed to the top of the vehicle. Is the arresting officer constitutionally able to open this on the spot, on the theory that it is like the car's trunk, or must he remove it and take it to the station for a warrant, on the theory that it is like the 200-pound footlocker in Chadwick ? Or suppose there is probable cause to arrest persons seated in the front seat of the automobile, and a suitcase rests on the back seat. Is that suitcase within the area of immediate control, such that the Chadwick-Sanders rules do not apply? Or suppose the arresting officer opens the car's trunk and finds that it contains an array of containers—an orange crate, a lunch bucket, an attache case, a duffelbag, a cardboard box, a backpack, a totebag, and a paper bag. Which of these may be searched immediately, and which are so "personal" that they must be impounded for future search only pursuant to a warrant? The problems of distinguishing between "luggage" and "some integral part of the automobile," ante, at 763; between luggage that is within the "immediate control" of the arrestee and luggage that is not; and between "personal luggage" and other "containers and packages" such as those most curiously described ante, at 764-765 n. 13, will be legion. The lines that will be drawn will not make much sense in terms of the policies of the Fourth and Fourteenth Amendments. And the heightened possibilities for error will mean that many convictions will be overturned, highly relevant evidence again will be excluded, and guilty persons will be set free in return for little apparent gain in precise and clearly understood constitutional analysis.
35
In my view, it would be better to adopt a clear-cut rule to the effect that a warrant should not be required to seize and search any personal property found in an automobile that may in turn be seized and searched without a warrant pursuant to Carroll and Chambers. Cf. United States v. Chadwick, 433 U.S., at 21-22, and n. 3, 97 S.Ct., at 2488-2489, and n. 3 (dissenting opinion). Such an approach would simplify the constitutional law of criminal procedure without seriously derogating from the values protected by the Fourth Amendment's prohibition of unreasonable searches and seizures.
1
Compare United States v. Finnegan, 568 F.2d 637, 641-642 (CA9 1977), with United States v. Stevie, 582 F.2d 1175, 1178-1179 (CA8 1978) (en banc).
2
In addition to the marihuana found in the suitcase, police officers found one ounce of heroin hidden in their patrol car after transporting Rambo to police headquarters. Accordingly, Rambo also was charged with possession of heroin with intent to deliver. Immediately before trial on both counts, the court severed the heroin-possession count for later trial.
3
"With the suitcase safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant." 262 Ark., at 601, 559 S.W.2d, at 707. The court also rejected the State's contention that luggage is entitled to a lesser protection against warrantless searches than are other private areas, such as homes. It noted that suitcases, unlike automobiles, customarily are the repositories for personal effects.
4
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." The Fourth Amendment has been made fully applicable to the States by the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). In this opinion we refer to the Fourth Amendment as it so applies to the State of Arkansas.
5
The need for a carefully drawn, limited warrant for searches of private premises was the product in large part of the colonists' resentment of the writs of assistance to which they were subjected by the English. See United States v. Chadwick, 433 U.S. 1, 8, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); J. Landynski, Search and Seizure and the Supreme Court 19 (1966); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 51-78 (1937). Mr. Justice Frankfurter went so far as to suggest that abuses of the writs of assistance were "so deeply felt by the Colonies as to be one of the potent causes of the Revolution." United States v. Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950) (dissenting opinion).
6
Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958).
7
The willingness of courts to excuse the absence of a warrant where spontaneous searches are required of a vehicle on the road has led to what is called the "automobile exception" to the warrant requirement, although the exception does not invariably apply whenever automobiles are searched. See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 461-462, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971) ("The word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears"). See generally Moylan, The Automobile Exception: What it is and What it is not—A Rationale in Search of a Clearer Label, 27 Mercer L.Rev. 987 (1976).
8
Respondent concedes that the suitcase was his property, see Brief for Respondent 3, and so there is no question of his standing to challenge the search. See Simmons v. United States, 390 U.S. 377, 387-388, 88 S.Ct. 967, 972-973, 19 L.Ed.2d 1247 (1968). Cf. Rakas v. Illinois, 439 U.S. 128, 148-149, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978).
9
The facts of the two cases are similar in several critical respects. In Chadwick, a locked, 200-pound footlocker was searched without a warrant after the police, acting with probable cause, had taken it from the trunk of a parked automobile. In the present case, respondent's comparatively small, unlocked suitcase also had been placed in the trunk of an automobile and was searched without a warrant by police acting upon probable cause. We do not view the difference in the sizes of the footlocker and suitcase as material here; nor did respondent's failure to lock his suitcase alter its fundamental character as a repository for personal, private effects. Cf. Note, A Reconsideration of the Katz Expectation of Privacy Test, 76 Mich.L.Rev. 154, 170 (1977).
10
The difficulties in seizing and securing automobiles have led the Court to make special allowances for their search. See n. 14, infra.
11
There may be cases in which the special exigencies of the situation would justify the warrantless search of a suitcase. Cf. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (police had reason to suspect automobile trunk contained a weapon). Generally, however, such exigencies will depend upon the probable contents of the luggage and the suspect's access to those contents—not upon whether the luggage is taken from an automobile. In the present case the State has conceded that there were no special exigencies. See Tr. of Oral Arg. 16.
Nor do we consider the constitutionality of searches of luggage incident to the arrest of its possessor. See, e. g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The State has not argued that respondent's suitcase was searched incident to his arrest, and it appears that the bag was not within his "immediate control" at the time of the search.
12
We have recognized that personal property brought into the country may be searched at the border under circumstances that would not otherwise justify a warrantless search. See United States v. Ramsey, 431 U.S. 606, 616-617, 97 S.Ct. 1972, 1979, 52 L.Ed.2d 617 (1977). Arkansas does not assert, however, that the search of respondent's luggage was a border search. Moreover it may be that the public safety requires luggage to be searched without a warrant in some circumstances—such as when luggage is about to be placed onto an airplane. This presents questions under the Fourth Amendment wholly absent from the present case.
It is beyond question that the police easily could have obtained a warrant to search respondent's bag if they had taken the suitcase to a magistrate. They had probable cause to believe not only that respondent was carrying marihuana, but also that the contraband was contained in the suitcase that they seized. The State argues that under the circumstances of this case inconvenience to all concerned would have been the only result of deferring search of the suitcase until a warrant was obtained. Those in respondent's position who find such inconvenience unacceptable may avoid it simply by consenting to the search.
13
Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to "plain view," thereby obviating the need for a warrant. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968) (per curiam ). There will be difficulties in determining which parcels taken from an automobile require a warrant for their search and which do not. Our decision in this case means only that a warrant generally is required before personal luggage can be searched and that the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile.
14
We are not persuaded by the State's argument that, under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), if the police were entitled to seize the suitcase, then they were entitled to search it. In Chambers, the Court upheld the warrantless search of an automobile stopped on the highway by police who believed that its occupants had robbed a gasoline station a short time before. The Court recognized that "[a]rguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained . . . ." Id., at 51, 90 S.Ct., at 1981. Nonetheless, the Court ruled that a warrantless search was permissible, concluding that there was no constitutional difference between the intrusion of seizing and holding the automobile until a warrant could be obtained, on the one hand, and searching the vehicle without a warrant, on the other.
We view, however, the seizure of a suitcase as quite different from the seizure of an automobile. In Chambers, if the Court had required seizure and holding of the vehicle, it would have imposed a constitutional requirement upon police departments of all sizes around the country to have available the people and equipment necessary to transport impounded automobiles to some central location until warrants could be secured. Moreover, once seized automobiles were taken from the highway the police would be responsible for providing some appropriate location where they could be kept, with due regard to the safety of the vehicles and their contents, until a magistrate ruled on the application for a warrant. Such a constitutional requirement therefore would have imposed severe, even impossible, burdens on many police departments. See Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835, 841-842 (1974). No comparable burdens are likely to exist with respect to the seizure of personal luggage.
1
Since respondent was not formally arrested until after the suitcase was searched, the State does not argue that the suitcase was examined as part of a search incident to custodial arrest. Cf. United States v. Chadwick, 433 U.S., at 23, and n. 5, 97 S.Ct., at 2489, and n. 5 (dissenting opinion).
2
The Court stated in Chambers, 399 U.S., at 51-52, 90 S.Ct., at 1981:
"Arguably because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the 'lesser' intrusion is permissible until the magistrate authorizes the 'greater.' But which is the 'greater' and which the 'lesser' intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant."
3
The opinion concurring in the judgment would distinguish between a case where there is probable cause to search the car and its contents as a whole, and a case where there is probable cause to search a particular item of luggage within the car. Ante, at 767-768. The opinion suggests, without deciding, that the automobile exception might apply in the former case, but not the latter. Surely, however, the intrusion on privacy, and consequently the need for the protection of the Warrant Clause, is, if anything, greater when the police search the entire interior area of the car, including possibly several suitcases, than when they confine their search to a single suitcase. Moreover, given the easy transferability of articles to and from luggage once it is placed in a vehicle, the police would be entitled to assume that if contraband was not found in the suspect suitcase, it would likely be secreted somewhere else in the car. The possibility the opinion concurring in the judgment would preserve for future decision thus contemplates the following two-step ritual: first, the police would take the targeted suitcase to the station for a search pursuant to a warrant; then, if the contraband was not discovered in the suitcase, they would return for a warrantless search of other luggage and compartments of the car. It does not require the adjudication of a future controversy to reject that result.
| 01
|
442 U.S. 640
99 S.Ct. 2523
61 L.Ed.2d 142
SECRETARY OF PUBLIC WELFARE OF PENNSYLVANIA et al., Appellants,v.INSTITUTIONALIZED JUVENILES et al.
No. 77-1715.
Argued Oct. 10, 1978.
Decided June 20, 1979.
Syllabus
Appellees filed a class action in Federal District Court against the Pennsylvania Secretary of Public Welfare and the directors of three state mental health facilities, seeking declaratory and injunctive relief and contending that Pennsylvania's procedures for the voluntary admission of mentally ill and mentally retarded children to a state hospital violated the Due Process Clause of the Fourteenth Amendment. Holding that the State's procedures were insufficient to satisfy the Due Process Clause and that only a formal adversary hearing could suffice to protect children in appellees' class from being needlessly confined in mental hospitals, the District Court concluded that specified procedures were required before any child could be admitted voluntarily to a mental hospital.
Held:
1. The risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a "neutral factfinder" to determine whether the statutory requirements for admission are satisfied. That inquiry must carefully probe the child's background and must also include an interview with the child. It is also necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, the child's continuing need for commitment must be reviewed periodically. Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101, controlling. P. 646.
2. Pennsylvania's procedures comply with these due process requirements. No child is admitted without at least one and often more psychiatric examinations by an independent team of mental health professionals whose sole concern is whether the child needs and can benefit from institutional care. The treatment team interviews the child and parents and compiles a full background history. If the treatment team concludes that institutional care is not in the child's best interest, it must refuse the child's admission; every child's condition is reviewed at least every 30 days. Pp. 646-650.
459 F.Supp. 30, reversed and remanded.
Norman J. Watkins, Harrisburg, Pa., for appellants.
David Ferleger, Philadelphia, Pa., for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
This appeal raises issues similar to those decided in Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101, as to what process is due when the parents or guardian of a child seek state institutional mental health care.
2
* This is the second time we have reviewed a District Court's judgment that Pennsylvania's procedures for the voluntary admission of mentally ill and mentally retarded children to a state hospital are unconstitutional. In the earlier suit, five children who were between the ages of 15 and 18 challenged the 1966 statute pursuant to which they had been admitted to Haverford State Hospital. Pa.Stat.Ann., Tit. 50, §§ 4402, 4403 (Purdon 1969). After a three-judge District Court, with one judge dissenting, declared the statute unconstitutional, Bartley v. Kremens, 402 F.Supp. 1039 (ED Pa. 1975), the Pennsylvania Legislature amended its mental health code with regard to the mentally ill. The amendments placed adolescents over the age of 14 in essentially the same position as adults for purposes of a voluntary admission. Mental Health Procedures Act of 1976, § 201, Pa.Stat.Ann., Tit. 50, § 7201 (Purdon Supp.1978). Under the new statute, the named plaintiffs could obtain their requested releases from the state hospitals independently of the constitutionality of the 1966 statute, and we therefore held that the claims of the named plaintiffs were moot. Kremens v. Bartley, 431 U.S. 119, 129, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977). We then remanded the case to the District Court for "reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claims." Id., at 135, 97 S.Ct. at 1718.
3
On remand, 12 new plaintiffs, appellees here, were named to represent classes of mentally ill and mentally retarded children. Nine of the children were younger than 14 and constituted all of those who had been admitted to the State's hospitals for the mentally ill in accordance with the 1976 Act at the time the suit was brought; three other children represented a class of patients who were 18 and younger and who had been or would be admitted to a state hospital for the mentally retarded under the 1966 Act and 1973 regulations implementing that Act. All 12 children had been admitted on the application of parents or someone standing in loco parentis with state approval after an independent medical examination.
4
The suit was filed against several named defendants, the Pennsylvania Secretary of Public Welfare and the directors of three state owned and operated facilities. The District Court, however, certified a defendant class that consisted of " 'directors of all mental health and mental retardation facilities in Pennsylvania which are subject to regulation by the defendant Secretary of Public Welfare.' " 459 F.Supp. 30, 40 n. 37 (ED Pa. 1978).1
5
Representatives of the nine mentally ill children sought a declaration that the admission procedures embodied in § 2012 of the Pennsylvania Mental Health Procedures Act of 1976, Pa.Stat.Ann., Tit. 50, § 7201 (Purdon Supp.1978), which subsequently have been expanded by regulations promulgated by the Secretary of Public Welfare, 8 Pa.Bull. 2432 et seq. (1978), violated their procedural due process rights and requested the court to issue an injunction against the statute's future enforcement. The three mentally retarded children presented the same claims as to §§ 4023 and 4034 of the Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann., Tit. 50, §§ 4402 and 4403 (Purdon 1969), and the regulations promulgated thereunder.5
6
The District Court certified two subclasses of plaintiffs6 under Fed.Rule Civ.Proc. 23 and held that the statutes challenged by each subclass were unconstitutional. It held that the State's procedures were insufficient to satisfy the Due Process Clause of the Fourteenth Amendment.
7
The District Court's analysis in this case was similar to that used by the District Court in J. L. v. Parham, 412 F.Supp. 112 (MD Ga. 1976), reversed and remanded sub nom. Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101. The court in this case concluded that these children had a constitutionally protected liberty interest that could not be "waived" by their parents. This conclusion, coupled with the perceived fallibility of psychiatric diagnosis, led the court to hold that only a formal adversary hearing could suffice to protect the children in appellees' class from being needlessly confined in mental hospitals.
8
To further protect the children's interests, the court concluded that the following procedures were required before any child could be admitted voluntarily to a mental hospital:
9
1) 48-hour notice prior to any hearing;
10
2) legal counsel "during all significant stages of the commitment process";
11
3) the child's presence at all commitment hearings;
12
4) a finding by an impartial tribunal based on clear and convincing evidence that the child required institutional treatment;
13
5) a probable-cause determination within 72 hours after admission to a hospital;
14
6) a full hearing, including the right to confront and cross-examine witnesses, within two weeks from the date of the initial admission. App. 1097a-1098a.7
15
Appellants, all of the defendants before the District Court, appealed the judgment. We noted probable jurisdiction, and consolidated the case with Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101. 437 U.S. 902, 98 S.Ct. 3087, 57 L.Ed.2d 1132.
II
16
(a) Much of what we said in Parham v. J. R. applies with equal force to this case. The liberty rights and interests of the appellee children, the prerogatives, responsibilities, and interests of the parents, and the obligations and interests of the State are the same. Our holding as to what process is due in Parham controls here, particularly:
17
"We conclude that the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a 'neutral factfinder' to determine whether the statutory requirements for admission are satisfied. . . . That inquiry must carefully probe the child's background using all available sources, including, but not limited to, parents, schools, and other social agencies. Of course, the review must also include an interview with the child. It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, it is necessary that the child's continuing need for commitment be reviewed periodically by a similarly independent procedure." Parham v. J. R., supra, at 606-607, 99 S.Ct., at 2506.
18
The only issue is whether Pennsylvania's procedures for the voluntary commitment of children comply with these requirements.
19
(b) Unlike in Parham v. J. R., where the statute being challenged was general and thus the procedures for admission were evaluated hospital by hospital, the statute and regulations in Pennsylvania are specific. Our focus here is on the codified procedures declared unconstitutional by the District Court.
20
The Mental Health Procedures Act of 1976 and regulations promulgated by the Secretary describe the procedures for the voluntary admission for inpatient treatment of mentally ill children. Section 201 of the Act provides that "[a] parent, guardian, or person standing in loco parentis to a child less than 14 years of age" may apply for a voluntary examination and treatment for the child. After the child receives an examination and is provided with temporary treatment, the hospital must formulate "an individualized treatment plan . . . by a treatment team." Within 72 hours the treatment team is required to determine whether inpatient treatment is "necessary" and why. Pa.Stat.Ann., Tit. 50, § 7205 (Purdon Supp.1978). The hospital must inform the child and his parents both of the necessity for institutional treatment and of the nature of the proposed treatment. Ibid.
21
Regulations promulgated under the 1976 Act provide that each child shall be re-examined and his or her treatment plan reviewed not less than once every 30 days. See § 7100.108(a), 8 Pa.Bull. 2436 (1978). The regulations also permit a child to object to the treatment plan and thereby obtain a review by a mental health professional independent of the treatment team. The findings of this person are reported directly to the director of the hospital who has the power and the obligation to release any child who no longer needs institutional treatment.
22
The statute indeed provides three methods for release of a child under the age of 14 from a mental hospital. First, the child's parents or guardian may effect his release at will. Pa.Stat.Ann., Tit. 50, § 7206(b) (Purdon Supp.1978). Second, "any responsible party" may petition the juvenile court if the person believes that treatment in a less restrictive setting would be in the best interests of the child. Ibid. If such a petition is filed, an attorney is appointed to represent the child's interests and a hearing is held within 10 days to determine "what inpatient treatment, if any, is in the minor's best interest." Ibid. Finally, the director of the hospital may release any child whenever institutional treatment is no longer medically indicated. § 7206(c).
23
The Mental Health and Mental Retardation Act of 1966 regulates the voluntary admission for inpatient hospital habilitation of the mentally retarded. The admission process has been expanded significantly by regulations promulgated in 1973 by Pennsylvania's Secretary of Public Welfare. 3 Pa.Bull. 1840 (1973). Unlike the procedure for the mentally ill, a hospital is not permitted to admit a mentally retarded child based solely on the application of a parent or guardian. All children must be referred by a physician and each referral must be accompanied by a medical or psychological evaluation. In addition, the director of the institution must make an independent examination of each child, and if he disagrees with the recommendation of the referring physician as to whether hospital care is "required," the child must be discharged. Mentally retarded children or anyone acting on their behalf may petition for a writ of habeas corpus to challenge the sufficiency or legality of the "proceedings leading to commitment." Pa.Stat.Ann., Tit. 50, § 4426 (Purdon 1969).
24
Any child older than 13 who is admitted to a hospital must have his rights explained to him and must be informed that a status report on his condition will be provided periodically. The older child is also permitted to object, either orally or in writing, to his hospitalization. After such objection, the director of the facility, if he feels that hospitalization is still necessary, must institute an involuntary commitment proceeding under § 406 of the Act, Pa.Stat.Ann., Tit. 50, § 4406 (Purdon 1969).
25
What the statute and regulations do not make clear is how the hospital staff decides that inpatient care is required for a child. The director of Haverford State Hospital for the mentally ill was the sole witness called by either side to testify about the decisionmaking process at a state hospital. She described the process as follows:
26
"[T]here is an initial examination made by the psychiatrist, and is so designated admission note on the hospital record. Subsequently, for all adolescents on the Adolescent Service at Haverford State Hospital, there are routine studies done, such as an electroencephalogram, a neurological examination, a medical examination, and a complete battery of psychological tests and school evaluation, as well as a psychiatric evaluation. When all their data has been compiled, an entire staff conference is held, which is called a new case conference, at which point the complete case is re-examined and it is decided whether or not the child needs hospitalization, and at that same time, as well, an adequate treatment course is planned." App. 112a.
27
In addition to the physical and mental examinations that are conducted for each child within the institutions, the staff compiles a substantial "pre-admission background information" file on each child.8 After the child is admitted, there is a periodic review of the child's condition by the staff. His status is reviewed by a different social worker at least every 30 days. Since the State places a great deal of emphasis on family therapy, the parents or guardians are met with weekly to discuss the child's case. Id., at 113a.
28
We are satisfied that these procedures comport with the due process requirements set out earlier. No child is admitted without at least one and often more psychiatric examinations by an independent team of mental health professionals whose sole concern under the statute is whether the child needs and can benefit from institutional care. The treatment team not only interviews the child and parents but also compiles a full background history from all available sources. If the treatment team concludes that institutional care is not in the child's best interest, it must refuse the child's admission. Finally, every child's condition is reviewed at least every 30 days. This program meets the criteria of our holding in Parham.9 Accordingly, the judgment of the District Court that Pennsylvania's statutes and regulations are unconstitutional is reversed, and the case is remanded for further proceedings consistent with this opinion.
29
Reversed and remanded.
30
For the reasons stated in his opinion concurring in the judgment in Parham v. J. R., 442 U.S. 584, 621, 99 S.Ct. 2493, 2513, 61 L.Ed.2d 101, Mr. Justice STEWART concurs in the judgment.
31
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice STEVENS join, concurring in part and dissenting in part.
32
For the reasons stated in my opinion in Parham v. J. R., 442 U.S. 584, 625, 99 S.Ct. 2493, 2515, 61 L.Ed.2d 101 (concurring in part and dissenting in part), I agree that Pennsylvania's preadmission psychiatric interview procedures pass constitutional muster. I cannot agree, however, with the Court's decision to pretermit questions concerning Pennsylvania's postadmission procedures. See ante, at 650 n. 9. In my view, these procedures should be condemned now.
33
Pennsylvania provides neither representation nor reasonably prompt postadmission hearings to mentally retarded children 13 years of age and younger. For the reasons stated in my opinion in Parham v. J. R., I believe that this is unconstitutional.
34
As a practical matter, mentally retarded children over 13 and children confined as mentally ill fare little better. While under current regulations these children must be informed of their right to a hearing and must be given the telephone number of an attorney within 24 hours of admission, see 459 F.Supp. 30, 49, 51 (ED Pa.1978) (Broderick, J., dissenting),* the burden of contacting counsel and the burden of initiating proceedings is placed upon the child. In my view, this placement of the burden vitiates Pennsylvania's procedures. Many of the institutionalized children are unable to read, write, comprehend the formal explanation of their rights, or use the telephone. See App. 1019a (testimony of L. Glenn). Few, as a consequence, will be able to take the initiative necessary for them to secure the advice and assistance of a trained representative. Few will be able to trigger the procedural safeguards and hearing rights that Pennsylvania formally provides. Indeed, for most of Pennsylvania's institutionalized children the recitation of rights required by current regulations will amount to no more than a hollow ritual. If the children's constitutional rights to representation and to a fair hearing are to be guaranteed in substance as well as in form and if the commands of the Fourteenth Amendment are to be satisfied, then waiver of those constitutional rights cannot be inferred from mere silence or inaction on the part of the institutionalized child. Cf. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Pennsylvania must assign each institutionalized child a representative obliged to initiate contact with the child and ensure that the child's constitutional rights are fully protected. Otherwise, it is inevitable that the children's due process rights will be lost through inadvertence, inaction, or incapacity. See 459 F.Supp., at 44 n. 47; Bartley v. Kremens, 402 F.Supp. 1039, 1050-1051 (ED Pa.1975).
1
Appellants argue that the State's regulation of admission to private hospitals is insufficient to constitute state action for purposes of the Due Process Clause of the Fourteenth Amendment. They, however, did not contest the District Court's definition of the defendant class, which included directors of both public and private facilities. In light of our holding that Pennsylvania's procedures comport with due process, we do not decide whether the District Court correctly found state action.
2
Section 201 provides in part: "A parent, guardian, or person standing in loco parentis to a child less than 14 years of age may subject such child to examination and treatment under this act, and in so doing shall be deemed to be acting for the child."
3
Section 402 provides:
"(a) Application for voluntary admission to a facility for examination, treatment and care may be made by:
* * * * *
"(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger.
"(b) When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he may be admitted."
4
Section 403 provides:
"(a) Application for voluntary commitment to a facility for examination, treatment and care may be made by:
* * * * *
"(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger.
"(b) The application shall be in writing, signed by the applicant in the presence of at least one witness. When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he shall be committed for a period not to exceed thirty days."
5
The 1973 regulations provide in part:
"1. . . . [M]entally retarded juveniles may be referred by either a pediatrician, or general physician or psychologist;
"2. This referral must be accomplished by a psychiatric evaluation and that report must indicate with specificity the reasons that the person requires institutional care; however, a medical or psychological evaluation may accompany the referral of a mentally retarded juvenile;
"3. The Director of the Institution . . . shall have conducted an independent examination of the proposed juvenile, and if his results disagree with the professional's opinion, the Director . . . shall discharge the juvenile;
* * * * *
"5. Within 24 hours after the juvenile's admission, every youth who is at least 13 years of age must receive written notification (which he signs) explaining his rights indicating that he will be given a status report periodically of his condition; that he can contact by telephone or by mail his parents or the person who requested his admission; and that he will be furnished with the number of counsel . . . that he can call for representation . . . ;
"6. In the event that a juvenile whose chronological age is 13 or older objects (either orally or in writing) to remaining in the Institution, the Director . . . if he feels it is necessary for the youth to remain, may continue the institutionalization for two business days during which time he shall notify the applicant and the referral unit so that either party may institute a 406 [involuntary commitment] proceeding. . . ." 3 Pa.Bull. 1840 (1973).
6
One subclass consisted of "all juveniles under the age of fourteen who are subject to inpatient treatment under Article II of the 1976 Act." 459 F.Supp., at 41. The other subclass was "mentally retarded juveniles age eighteen or younger." Id., at 42. Appellants argue that the District Court failed to heed our admonition in remanding this case previously that it should " 'stop, look, and listen' before certifying a class in order to adjudicate constitutional claims." Kremens v. Bartley, 431 U.S. 119, 135, 97 S.Ct. 1709, 1718, 52 L.Ed.2d 184 (1977). Given our disposition of the merits of this appeal, we need not decide whether these subclasses satisfy the requirements of Fed.Rule Civ.Proc. 23.
7
Judge Broderick dissented from the judgment of the majority. In his view, the majority "has prescribed 'an overdose' of due process." 459 F.Supp., at 53.
8
Appellees argue that not much weight should be accorded to these files because the record does not make clear whether they were used in making the admission decision. The District Court, however, found that "virtually all of the information was received by the admitting facilities prior to admission." 459 F.Supp., at 36 n. 15. The court did acknowledge that it was not clear to what extent the information was used, but nonetheless admitted all of the records into evidence. Since it was available, we, like the District Court, assume the information served as a factual basis for some portions of the diagnoses of the children at the time of their admission to the hospitals.
9
Although the District Court briefly described the situation of each of the children in appellees' class, it did not indicate the process for each of their admissions. We cannot determine on the record before us whether each child's admission conformed to our due process standards. Just as in Parham, individual members of appellees' class are free to argue on remand that their particular commitments violated those standards.
Also, we note that as in Parham we are faced only with the issue of what process is due at the initial admission, and thus we are not deciding what postadmission procedures are constitutionally adequate to continue a voluntary commitment. The District Court had no reason to consider that issue, and indeed from our reading of appellees' complaint there does not appear to be any specific challenge to the State's review procedures. However, we leave it to the District Court on remand to determine what further proceedings are necessary.
*
See also Pa.Stat.Ann., Tit. 16, § 9960.6(c) (Purdon Supp.1979) (Pennsylvania Public Defender obliged to represent institutionalized children in commitment and related proceedings).
| 12
|
442 U.S. 707
99 S.Ct. 2560
61 L.Ed.2d 197
Kenneth F. FARE, etc., Petitioner,v.MICHAEL C.
No. 78-334.
Argued Feb. 27, 1979.
Decided June 20, 1979.
Rehearing Denied Oct. 1, 1979.
See 444 U.S. 887, 100 S.Ct. 186.
Syllabus
Respondent, at the time 161/2 years old, was taken into custody by Van Nuys, Cal., police on suspicion of murder. Before being questioned at the station house, he was fully advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. At the outset of the questioning, respondent, who was on probation to the Juvenile Court, had served a term in a youth corrections camp, and had a record of prior offenses, asked to see his probation officer. But when the police denied this request, respondent stated he would talk without consulting an attorney, and he then proceeded to make statements and draw sketches implicating him in the murder. Upon being charged in Juvenile Court with the murder, he moved to suppress the incriminating statements and sketches on the ground that they had been obtained in violation of Miranda in that his request to see his probation officer constituted an invocation of his Fifth Amendment right to remain silent, just as if he had requested the assistance of an attorney. The court denied the motion, holding that the facts showed that respondent had waived his right to remain silent, notwithstanding his request to see his probation officer. The California Supreme Court reversed, holding that respondent's request for his probation officer was a per se invocation of his Fifth Amendment rights in the same way the request for an attorney was found in Miranda to be, regardless of what the interrogation otherwise might reveal. This holding was based on the court's view that a probation officer occupies a position as a trusted guardian figure in a juvenile's life that would make it normal for the juvenile to turn to the officer when apprehended by the police, and was also based on the state-law requirement that the officer represent the juvenile's interests.
Held:
1. The California Supreme Court erred in finding that respondent's request for his probation officer was a per se invocation of his Fifth Amendment rights under Miranda, and therefore also erred in holding that because the police did not cease interrogating respondent the statements and sketches made during the interrogation should have been suppressed. Pp. 716-724. (a) The rule in Miranda that if an accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, was based on the unique role the lawyer plays in the adversary system of criminal justice. A probation officer is not in a position to offer the type of legal assistance necessary to protect the Fifth Amendment rights of an accused undergoing custodial interrogation that a lawyer can offer. Pp. 719-722.
(b) The fact that a relationship of trust and cooperation might exist between a probation officer and a juvenile does not indicate that the officer is capable of rendering effective legal advice sufficient to protect the juvenile's rights during police interrogation, or of providing the other services rendered by a lawyer. Similarly, the fact that the probation officer has a statutory duty to protect the juvenile's interests does not make the officer any more capable of rendering legal assistance to the juvenile or of protecting his legal rights, especially where the officer also has a statutory duty to report wrongdoing by the juvenile and serve the ends of the juvenile court system. Pp. 722-723.
(c) A juvenile's request to speak with his probation officer does not constitute a per se request to remain silent nor is it tantamount to a request for an attorney. Pp.723-724
2. Whether the incriminating statements and sketches were admissible on the basis of waiver was a question to be resolved on the totality of the circumstances surrounding the interrogation. On the basis of the record, it is clear that respondent voluntarily and knowingly waived his Fifth Amendment rights and consented to continued interrogation, and that the statements and sketches obtained from him were voluntary, and hence their admission in the Juvenile Court proceeding was correct. Pp. 724-727.
21 Cal.3d 471, 146 Cal.Rptr. 358, 579 P.2d 7, reversed and remanded.
Mark Alan Hart, Los Angeles, Cal., for petitioner.
Albert J. Menaster, Los Angeles, Cal., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), this Court established certain procedural safeguards designed to protect the rights of an accused, under the Fifth and Fourteenth Amendments, to be free from compelled self-incrimination during custodial interrogation. The Court specified, among other things, that if the accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at his trial. Id., at 444-445, 473-474, 86 S.Ct., at 1612-1613, 1627-1628.
2
In this case, the State of California, in the person of its acting chief probation officer, attacks the conclusion of the Supreme Court of California that a juvenile's request, made while undergoing custodial interrogation, to see his probation officer is per se an invocation of the juvenile's Fifth Amendment rights as pronounced in Miranda.
3
* Respondent Michael C. was implicated in the murder of Robert Yeager. The murder occurred during a robbery of the victim's home on January 19, 1976. A small truck registered in the name of respondent's mother was identified as having been near the Yeager home at the time of the killing, and a young man answering respondent's description was seen by witnesses near the truck and near the home shortly before Yeager was murdered.
4
On the basis of this information, Van Nuys, Cal., police took respondent into custody at approximately 6:30 p. m. on February 4. Respondent then was 161/2 years old and on probation to the Juvenile Court. He had been on probation since the age of 12. Approximately one year earlier he had served a term in a youth corrections camp under the supervision of the Juvenile Court. He had a record of several previous offenses, including burglary of guns and purse snatching, stretching back over several years.
5
Upon respondent's arrival at the Van Nuys station house two police officers began to interrogate him. The officers and respondent were the only persons in the room during the interrogation. The conversation was tape-recorded. One of the officers initiated the interview by informing respondent that he had been brought in for questioning in relation to a murder. The officer fully advised respondent of his Miranda rights. The following exchange then occurred, as set out in the opinion of the California Supreme Court, In re Michael C., 21 Cal.3d 471, 473-474, 146 Cal.Rptr. 358, 359-360, 579 P.2d 7, 8 (1978) (emphasis added by that court):
6
"Q. . . . Do you understand all of these rights as I have explained them to you?
7
"A. Yeah.
8
"Q. Okay, do you wish to give up your right to remain silent and talk to us about this murder?
9
"A. What murder? I don't know about no murder.
10
"Q. I'll explain to you which one it is if you want to talk to us about it.
11
"A. Yeah, I might talk to you.
12
"Q. Do you want to give up your right to have an attorney present here while we talk about it?
13
"A. Can I have my probation officer here?
14
"Q. Well I can't get a hold of your probation officer right now. You have the right to an attorney.
15
"A. How I know you guys won't pull no police officer in and tell me he's an attorney? "Q. Huh?
16
"A. [How I know you guys won't pull no police officer in and tell me he's an attorney?]
17
"Q. Your probation officer is Mr. Christiansen.
18
"A. Yeah.
19
"Q. Well I'm not going to call Mr. Christiansen tonight. There's a good chance we can talk to him later, but I'm not going to call him right now. If you want to talk to us without an attorney present, you can. If you don't want to, you don't have to. But if you want to say something, you can, and if you don't want to say something you don't have to. That's your right. You understand that right?
20
"A. Yeah.
21
"Q. Okay, will you talk to us without an attorney present?
22
"A. Yeah I want to talk to you."
23
Respondent thereupon proceeded to answer questions put to him by the officers. He made statements and drew sketches that incriminated him in the Yeager murder.
24
Largely on the basis of respondent's incriminating statements, probation authorities filed a petition in Juvenile Court alleging that respondent had murdered Robert Yeager, in violation of Cal.Penal Code Ann. § 187 (West Supp.1979), and that respondent therefore should be adjudged a ward of the Juvenile Court, pursuant to Cal.Welf. & Inst.Code Ann. § 602 (West Supp.1979).1 App. 4-5. Respondent thereupon moved to suppress the statements and sketches he gave the police during the interrogation. He alleged that the statements had been obtained in violation of Miranda in that his request to see his probation officer at the outset of the questioning constituted an invocation of his Fifth Amendment right to remain silent, just as if he had requested the assistance of an attorney. Accordingly, respondent argued that since the interrogation did not cease until he had a chance to confer with his probation officer, the statements and sketches could not be admitted against him in the Juvenile Court proceedings. In so arguing, respondent relied by analogy on the decision in People v. Burton, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793 (1971), where the Supreme Court of California had held that a minor's request, made during custodial interrogation, to see his parents constituted an invocation of the minor's Fifth Amendment rights.
25
In support of his suppression motion, respondent called his probation officer, Charles P. Christiansen, as a witness. Christiansen testified that he had instructed respondent that if at any time he had "a concern with his family," or ever had "a police contact," App. 27, he should get in touch with his probation officer immediately. The witness stated that, on a previous occasion, when respondent had had a police contact and had failed to communicate with Christiansen, the probation officer had reprimanded him. Id., at 28. This testimony, respondent argued, indicated that when he asked for his probation officer, he was in fact asserting his right to remain silent in the face of further questioning.
26
In a ruling from the bench, the court denied the motion to suppress. Id., at 41-42. It held that the question whether respondent had waived his right to remain silent was one of fact to be determined on a case-by-case basis, and that the facts of this case showed a "clear waiver" by respondent of that right. Id., at 42. The court observed that the transcript of the interrogation revealed that respondent specifically had told the officers that he would talk with them, and that this waiver had come at the outset of the interrogation and not after prolonged questioning. The court noted that respondent was a "16 and a half year old minor who has been through the court system before, has been to [probation] camp, has a probation officer, [and is not] a young, naive minor with no experience with the courts." Ibid. Accordingly, it found that on the facts of the case respondent had waived his Fifth Amendment rights, notwithstanding the request to see his probation officer.2
27
On appeal, the Supreme Court of California took the case by transfer from the California Court of Appeal and, by a divided vote, reversed. In re Michael C., 21 Cal.3d 471, 146 Cal.Rptr. 358, 579 P.2d 7 (1978). The court held that respondent's "request to see his probation officer at the commencement of interrogation negated any possible willingness on his part to discuss his case with the police [and] thereby invoked his Fifth Amendment privilege." Id., at 474, 146 Cal.Rptr., at 360, 579 P.2d, at 8. The court based this conclusion on its view that, because of the juvenile court system's emphasis on the relationship between a probation officer and the probationer, the officer was "a trusted guardian figure who exercises the authority of the state as parens patriae and whose duty it is to implement the protective and rehabilitative powers of the juvenile court." Id., at 476, 146 Cal.Rptr., at 361, 579 P.2d, at 10. As a consequence, the court found that a minor's request for his probation officer was the same as a request to see his parents during interrogation, and thus under the rule of Burton constituted an invocation of the minor's Fifth Amendment rights.
28
The fact that the probation officer also served as a peace officer, and, whenever a proceeding against a juvenile was contemplated, was charged with a duty to file a petition alleging that the minor had committed an offense, did not alter, in the court's view, the fact that the officer in the eyes of the juvenile was a trusted guardian figure to whom the minor normally would turn for help when in trouble with the police. 21 Cal.3d, at 476, 146 Cal.Rptr., at 361, 579 P.2d, at 10. Relying on Burton, the court ruled that it would unduly restrict Miranda to limit its reach in a case involving a minor to a request by the minor for an attorney, since it would be " 'fatuous to assume that a minor in custody will be in a position to call an attorney for assistance and it is unrealistic to attribute no significance to his call for help from the only person to whom he normally looks—a parent or guardian.' " 21 Cal.3d, at 475-476, 146 Cal.Rptr., at 360, 579 P.2d, at 9, quoting People v. Burton, 6 Cal.3d, at 382, 99 Cal.Rptr., at 6, 491 P.2d, at 797-798. The court dismissed the concern expressed by the State that a request for a probation officer could not be distinguished from a request for one's football coach, music teacher, or clergyman on the ground that the probation officer, unlike those other figures in the juvenile's life, was charged by statute to represent the interests of the juvenile. 21 Cal.3d, at 477, 146 Cal.Rptr., at 361, 579 P.2d, at 10.
29
The court accordingly held that the probation officer would act to protect the minor's Fifth Amendment rights in precisely the way an attorney would act if called for by the accused. In so holding, the court found the request for a probation officer to be a per se invocation of Fifth Amendment rights in the same way the request for an attorney was found in Miranda to be, regardless of what the interrogation otherwise might reveal. In rejecting a totality-of-the-circumstances inquiry, the court stated:
30
"Here, however, we face conduct which, regardless of considerations of capacity, coercion or voluntariness, per se invokes the privilege against self-incrimination. Thus our question turns not on whether the [respondent] had the ability, capacity or willingness to give a knowledgeable waiver, and hence whether he acted voluntarily, but whether, when he called for his probation officer, he exercised his Fifth Amendment privilege. We hold that in doing so he no less invoked the protection against self-incrimination than if he asked for the presence of an attorney." Ibid., 146 Cal.Rptr., at 362, 579 P.2d, at 10-11.
31
See also id., at 478 n. 4, 146 Cal.Rptr., at 362 n. 4, 579 P.2d, at 11 n. 4. The court went on to conclude that since the State had not met its "burden of proving that a minor who requests to see his probation officer does not intend to assert his Fifth Amendment privilege," id., at 478, 146 Cal.Rptr., at 362, 579 P.2d, at 11, the trial court should not have admitted the confessions obtained after respondent had requested his probation officer.3
32
The State of California petitioned this Court for a writ of certiorari. Mr. Justice REHNQUIST, as Circuit Justice, stayed the execution of the mandate of the Supreme Court of California. 439 U.S. 1310, 99 S.Ct. 3, 58 L.Ed.2d 19 (1978). Because the California judgment extending the per se aspects of Miranda presents an important question about the reach of that case, we thereafter issued the writ. 439 U.S. 925, 99 S.Ct. 308, 58 L.Ed.2d 318 (1978).
II
33
We note at the outset that it is clear that the judgment of the California Supreme Court rests firmly on that court's interpretation of federal law. This Court, however, has not heretofore extended the per se aspects of the Miranda safeguards beyond the scope of the holding in the Miranda case itself.4 We therefore must examine the California court's decision to determine whether that court's conclusion so to extend Miranda is in harmony with Miranda's underlying principles. For it is clear that "a State may not impose . . . greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975) (emphasis in original). See North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).
34
The rule the Court established in Miranda is clear. In order to be able to use statements obtained during custodial interrogation of the accused, the State must warn the accused prior to such questioning of his right to remain silent and of his right to have counsel, retained or appointed, present during interrogation. 384 U.S., at 473, 86 S.Ct., at 1627. "Once [such] warnings have been given, the subsequent procedure is clear." Ibid.
35
"If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." Id., at 473-474, 86 S.Ct., at 1627, 1628 (footnote omitted).
36
Any statements obtained during custodial interrogation conducted in violation of these rules may not be admitted against the accused, at least during the State's case in chief. Id., at 479, 86 S.Ct., at 1630. Cf. Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971).
37
Whatever the defects, if any, of this relatively rigid requirement that interrogation must cease upon the accused's request for an attorney, Miranda's holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis. See Michigan v. Tucker, 417 U.S. 433, 443-446, 94 S.Ct. 2357, 2363-2365, 41 L.Ed.2d 182 (1974).
38
The California court in this case, however, significantly has extended this rule by providing that a request by a juvenile for his probation officer has the same effect as a request for an attorney. Based on the court's belief that the probation officer occupies a position as a trusted guardian figure in the minor's life that would make it normal for the minor to turn to the officer when apprehended by the police, and based as well on the state-law requirement that the officer represent the interest of the juvenile, the California decision found that consultation with a probation officer fulfilled the role for the juvenile that consultation with an attorney does in general, acting as a " 'protective [device] . . . to dispel the compulsion inherent in custodial surroundings.' " 21 Cal.3d, at 477, 146 Cal.Rptr., at 361, 579 P.2d, at 10, quoting Miranda v. Arizona, 384 U.S., at 458, 86 S.Ct., at 1619.
39
The rule in Miranda, however, was based on this Court's perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that "the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system" established by the Court. Id., at 469, 86 S.Ct., at 1625. Moreover, the lawyer's presence helps guard against overreaching by the police and ensures that any statements actually obtained are accurately transcribed for presentation into evidence. Id., at 470, 86 S.Ct., at 1625.
40
The per se aspect of Miranda was thus based on the unique role the lawyer plays in the adversary system of criminal justice in this country. Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts. For this reason, the Court fashioned in Miranda the rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.
41
A probation officer is not in the same posture with regard to either the accused or the system of justice as a whole. Often he is not trained in the law, and so is not in a position to advise the accused as to his legal rights. Neither is he a trained advocate, skilled in the representation of the interests of his client before both police and courts. He does not assume the power to act on behalf of his client by virtue of his status as adviser, nor are the communications of the accused to the probation officer shielded by the lawyer-client privilege. Moreover, the probation officer is the employee of the State which seeks to prosecute the alleged offender. He is a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers. He owes an obligation to the State, notwithstanding the obligation he may also owe the juvenile under his supervision. In most cases, the probation officer is duty bound to report wrongdoing by the juvenile when it comes to his attention, even if by communication from the juvenile himself. Indeed, when this case arose, the probation officer had the responsibility for filing the petition alleging wrongdoing by the juvenile and seeking to have him taken into the custody of the Juvenile Court. It was respondent's probation officer who filed the petition against him, and it is the acting chief of probation for the State of California, a probation officer, who is petitioner in this Court today.5
42
In these circumstances, it cannot be said that the probation officer is able to offer the type of independent advice that an accused would expect from a lawyer retained or assigned to assist him during questioning. Indeed, the probation officer's duty to his employer in many, if not most, cases would conflict sharply with the interests of the juvenile. For where an attorney might well advise his client to remain silent in the face of interrogation by the police, and in doing so would be "exercising [his] good professional judgment . . . to protect to the extent of his ability the rights of his client," Miranda v. Arizona, 384 U.S., at 480-481, 86 S.Ct., at 1631, a probation officer would be bound to advise his charge to cooperate with the police. The justices who concurred in the opinion of the California Supreme Court in this case aptly noted: "Where a conflict between the minor and the law arises, the probation officer can be neither neutral nor in the minor's corner." 21 Cal.3d, at 479, 146 Cal.Rptr., at 363, 579 P.2d, at 12. It thus is doubtful that a general rule can be established that a juvenile, in every case, looks to his probation officer as a "trusted guardian figure" rather than as an officer of the court system that imposes punishment.
43
By the same token, a lawyer is able to protect his client's rights by learning the extent, if any, of the client's involvement in the crime under investigation, and advising his client accordingly. To facilitate this, the law rightly protects the communications between client and attorney from discovery. We doubt, however, that similar protection will be afforded the communications between the probation officer and the minor. Indeed, we doubt that a probation officer, consistent with his responsibilities to the public and his profession, could withhold from the police or the courts facts made known to him by the juvenile implicating the juvenile in the crime under investigation.
44
We thus believe it clear that the probation officer is not in a position to offer the type of legal assistance necessary to protect the Fifth Amendment rights of an accused undergoing custodial interrogation that a lawyer can offer. The Court in Miranda recognized that "the attorney plays a vital role in the administration of criminal justice under our Constitution." 384 U.S., at 481, 86 S.Ct., at 1631. It is this pivotal role of legal counsel that justifies the per se rule established in Miranda, and that distinguishes the request for counsel from the request for a probation officer, a clergyman, or a close friend. A probation officer simply is not necessary, in the way an attorney is, for the protection of the legal rights of the accused, juvenile or adult. He is significantly handicapped by the position he occupies in the juvenile system from serving as an effective protector of the rights of a juvenile suspected of a crime.
45
The California Supreme Court, however, found that the close relationship between juveniles and their probation officers compelled the conclusion that a probation officer, for purposes of Miranda, was sufficiently like a lawyer to justify extension of the per se rule. 21 Cal.3d, at 476, 146 Cal.Rptr., at 361, 579 P.2d, at 10. The fact that a relationship of trust and cooperation between a probation officer and a juvenile might exist, however, does not indicate that the probation officer is capable of rendering effective legal advice sufficient to protect the juvenile's rights during interrogation by the police, or of providing the other services rendered by a lawyer. To find otherwise would be "an extension of the Miranda requirements [that] would cut this Court's holding in that case completely loose from its own explicitly stated rationale." Beckwith v. United States, 425 U.S. 341, 345, 96 S.Ct. 1612, 1615, 48 L.Ed.2d 1 (1976). Such an extension would impose the burdens associated with the rule of Miranda on the juvenile justice system and the police without serving the interests that rule was designed simultaneously to protect. If it were otherwise, a juvenile's request for almost anyone he considered trustworthy enough to give him reliable advice would trigger the rigid rule of Miranda.
46
Similarly, the fact that the State has created a statutory duty on the part of the probation officer to protect the interests of the juvenile does not render the probation officer any more capable of rendering legal assistance to the juvenile or of protecting his legal rights, especially in light of the fact that the State has also legislated a duty on the part of the officer to report wrongdoing by the juvenile and serve the ends of the juvenile court system. The State cannot transmute the relationship between probation officer and juvenile offender into the type of relationship between attorney and client that was essential to the holding of Miranda simply by legislating an amorphous "duty to advise and care for the juvenile defendant." 21 Cal.3d, at 477, 146 Cal.Rptr., at 361, 579 P.2d, at 10. Though such a statutory duty might serve to distinguish to some degree the probation officer from the coach and the clergyman, it does not justify the extension of Miranda to requests to see probation officers. If it did, the State could expand the class of persons covered by the Miranda per se rule simply by creating a duty to care for the juvenile on the part of other persons, regardless of whether the logic of Miranda would justify that extension.
47
Nor do we believe that a request by a juvenile to speak with his probation officer constitutes a per se request to remain silent. As indicated, since a probation officer does not fulfill the important role in protecting the rights of the accused juvenile that an attorney plays, we decline to find that the request for the probation officer is tantamount to the request for an attorney. And there is nothing inherent in the request for a probation officer that requires us to find that a juvenile's request to see one necessarily constitutes an expression of the juvenile's right to remain silent. As discussed below, courts may take into account such a request in evaluating whether a juvenile in fact had waived his Fifth Amendment rights before confessing. But in other circumstances such a request might well be consistent with a desire to speak with the police. In the absence of further evidence that the minor intended in the circumstances to invoke his Fifth Amendment rights by such a request, we decline to attach such overwhelming significance to this request.
48
We hold, therefore, that it was error to find that the request by respondent to speak with his probation officer per se constituted an invocation of respondent's Fifth Amendment right to be free from compelled self-incrimination. It therefore was also error to hold that because the police did not then cease interrogating respondent the statements he made during interrogation should have been suppressed.
III
49
Miranda further recognized that after the required warnings are given the accused, "[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." 384 U.S., at 475, 86 S.Ct., at 1628. We noted in North Carolina v. Butler, 441 U.S., at 373, 99 S.Ct., at 1757, that the question whether the accused waived his rights "is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case." Thus, the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. Miranda v. Arizona, 384 U.S., at 475-477, 86 S.Ct., at 1628-1629.
50
This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits—indeed, it mandates inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. See North Carolina v. Butler, supra.
51
Courts repeatedly must deal with these issues of waiver with regard to a broad variety of constitutional rights. There is no reason to assume that such courts—especially juvenile courts, with their special expertise in this area—will be unable to apply the totality-of-the-circumstances analysis so as to take into account those special concerns that are present when young persons, often with limited experience and education and with immature judgment, are involved. Where the age and experience of a juvenile indicate that his request for his probation officer or his parents is, in fact, an invocation of his right to remain silent, the totality approach will allow the court the necessary flexibility to take this into account in making a waiver determination. At the same time, that approach refrains from imposing rigid restraints on police and courts in dealing with an experienced older juvenile with an extensive prior record who knowingly and intelligently waives his Fifth Amendment rights and voluntarily consents to interrogation.
52
In this case, we conclude that the California Supreme Court should have determined the issue of waiver on the basis of all the circumstances surrounding the interrogation of respondent. The Juvenile Court found that under this approach, respondent in fact had waived his Fifth Amendment rights and consented to interrogation by the police after his request to see his probation officer was denied. Given its view of the case, of course, the California Supreme Court did not consider this issue, though it did hold that the State had failed to prove that, notwithstanding respondent's request to see his probation officer, respondent had not intended to invoke his Fifth Amendment rights.
53
We feel that the conclusion of the Juvenile Court was correct. The transcript of the interrogation reveals that the police officers conducting the interrogation took care to ensure that respondent understood his rights. They fully explained to respondent that he was being questioned in connection with a murder. They then informed him of all the rights delineated in Miranda, and ascertained that respondent understood those rights. There is no indication in the record that respondent failed to understand what the officers told him. Moreover, after his request to see his probation officer had been denied, and after the police officer once more had explained his rights to him, respondent clearly expressed his willingness to waive his rights and continue the interrogation.
54
Further, no special factors indicate that respondent was unable to understand the nature of his actions. He was a 161/2-year-old juvenile with considerable experience with the police. He had a record of several arrests. He had served time in a youth camp, and he had been on probation for several years. He was under the full-time supervision of probation authorities. There is no indication that he was of insufficient intelligence to understand the rights he was waiving, or what the consequences of that waiver would be. He was not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit.
55
On these facts, we think it clear that respondent voluntarily and knowingly waived his Fifth Amendment rights. Respondent argues, however, that any statements he made during interrogation were coerced. Specifically, respondent alleges that the police made threats and promises during the interrogation to pressure him into cooperating in the hope of obtaining leniency for his cooperative attitude. He notes also that he repeatedly told the officers during his interrogation that he wished to stop answering their questions, but that the officers ignored his pleas. He argues further that the record reveals that he was afraid that the police would coerce him, and that this fear caused him to cooperate. He points out that at one point the transcript revealed that he wept during the interrogation.
56
Review of the entire transcript reveals that respondent's claims of coercion are without merit. As noted, the police took care to inform respondent of his rights and to ensure that he understood them. The officers did not intimidate or threaten respondent in any way. Their questioning was restrained and free from the abuses that so concerned the Court in Miranda. See 384 U.S., at 445-455, 86 S.Ct., at 1612-1618. The police did indeed indicate that a cooperative attitude would be to respondent's benefit, but their remarks in this regard were far from threatening or coercive. And respondent's allegation that he repeatedly asked that the interrogation cease goes too far: at some points he did state that he did not know the answer to a question put to him or that he could not, or would not, answer the question, but these statements were not assertions of his right to remain silent.
IV
57
We hold, in short, that the California Supreme Court erred in finding that a juvenile's request for his probation officer was a per se invocation of that juvenile's Fifth Amendment rights under Miranda. We conclude, rather, that whether the statements obtained during subsequent interrogation of a juvenile who has asked to see his probation officer, but who has not asked to consult an attorney or expressly asserted his right to remain silent, are admissible on the basis of waiver remains a question to be resolved on the totality of the circumstances surrounding the interrogation. On the basis of the record in this case, we hold that the Juvenile Court's findings that respondent voluntarily and knowingly waived his rights and consented to continued interrogation, and that the statements obtained from him were voluntary, were proper, and that the admission of those statements in the proceeding against respondent in Juvenile Court was correct.
58
The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
59
It is so ordered.
60
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEVENS join, dissenting.
61
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), this Court sought to ensure that the inherently coercive pressures of custodial interrogation would not vitiate a suspect's privilege against self-incrimination. Noting that these pressures "can operate very quickly to overbear the will of one merely made aware of his privilege," id., at 469, 86 S.Ct., at 1625, the Court held:
62
"If [a suspect in custody] indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Id., at 473-474, 86 S.Ct., at 1627-1628 (footnote omitted).
63
See also id., at 444-445, 86 S.Ct., at 1612-1613.
64
As this Court has consistently recognized, the coerciveness of the custodial setting is of heightened concern where, as here, a juvenile is under investigation. In Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), the plurality reasoned that because a 151/2-year-old minor was particularly susceptible to overbearing interrogation tactics, the voluntariness of his confession could not "be judged by the more exacting standards of maturity." Id. at 599, 68 S.Ct., at 304. The Court reiterated this point in Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1213, 8 L.Ed.2d 325 (1962), observing that a 14-year-old suspect could not "be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions." The juvenile defendant, in the Court's view, required
65
"the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not." Ibid.
66
And, in In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 1458, 18 L.Ed.2d 527 (1967), the Court admonished that "the greatest care must be taken to assure that [a minor's] admission was voluntary."
67
It is therefore critical in the present context that we construe Miranda's prophylactic requirements broadly to accomplish their intended purpose—"dispel[ling] the compulsion inherent in custodial surroundings." 384 U.S., at 458, 86 S.Ct., at 1619. To effectuate this purpose, the Court must ensure that the "protective device" of legal counsel, id., at 465-466, 469, 86 S.Ct., at 1623-1624, 1625, be readily available, and that any intimation of a desire to preclude questioning be scrupulously honored. Thus, I believe Miranda requires that interrogation cease whenever a juvenile requests an adult who is obligated to represent his interests. Such a request, in my judgment, constitutes both an attempt to obtain advice and a general invocation of the right to silence. For, as the California Supreme Court recognized, " '[i]t is fatuous to assume that a minor in custody will be in a position to call an attorney for assistance,' " 21 Cal.3d 471, 475-476, 146 Cal.Rptr. 358, 360, 579 P.2d 7, 9 (1978), quoting People v. Burton, 6 Cal.3d 375, 382, 99 Cal.Rptr. 1, 6, 491 P.2d 793, 797 (1971), or that he will trust the police to obtain a lawyer for him.1 A juvenile in these circumstances will likely turn to his parents, or another adult responsible for his welfare, as the only means of securing legal counsel. Moreover, a request for such adult assistance is surely inconsistent with a present desire to speak freely. Requiring a strict verbal formula to invoke the protections of Miranda would "protect the knowledgeable accused from stationhouse coercion while abandoning the young person who knows no more than to ask for the . . . person he trusts." Chaney v. Wainwright, 561 F.2d 1129, 1134 (CA5 1977) (Goldberg, J., dissenting).
68
On my reading of Miranda, a California juvenile's request for his probation officer should be treated as a per se assertion of Fifth Amendment rights. The California Supreme Court determined that probation officers have a statutory duty to represent minors' interests and, indeed, are "trusted guardian figure[s]" to whom a juvenile would likely turn for assistance. 21 Cal.3d, at 476, 146 Cal.Rptr., at 361, 579 P.2d, at 10. In addition, the court found, probation officers are particularly well suited to assist a juvenile "on such matters as to whether or not he should obtain an attorney" and "how to conduct himself with police." Id., at 476, 477, 146 Cal.Rptr., at 361, 579 P.2d, at 10. Hence, a juvenile's request for a probation officer may frequently be an attempt to secure protection from the coercive aspects of custodial questioning.2
69
This Court concludes, however, that because a probation officer has law enforcement duties, juveniles generally would not call upon him to represent their interests, and if they did, would not be well served. Ante, at 2570. But that conclusion ignores the California Supreme Court's express determination that the officer's responsibility to initiate juvenile proceedings did not negate his function as personal adviser to his wards.3 I decline to second-guess that court's assessment of state law. See Murdock v. Memphis, 20 Wall. 590, 626, 22 L.Ed. 429 (1875); General Trading Co. v. State Tax Comm'n, 322 U.S. 335, 337, 64 S.Ct. 1028, 1029, 88 L.Ed. 1309 (1944); Scripto, Inc. v. Carson, 362 U.S. 207, 210, 80 S.Ct. 619, 621, 4 L.Ed.2d 660 (1960).4 Further, although the majority here speculates that probation officers have a duty to advise cooperation with the police, ante, at 721—a proposition suggested only in the concurring opinion of two justices below, 21 Cal.3d, at 479, 146 Cal.Rptr., at 363, 579 P.2d, at 11-12 (Mosk, J., joined by Bird, C. J., concurring)—respondent's probation officer instructed all his charges "not to go and admit openly to an offense, [but rather] to get some type of advice from . . . parents or a lawyer." App. 30. Absent an explicit statutory provision or judicial holding, the officer's assessment of the obligations imposed by state law is entitled to deference by this Court.
70
Thus, given the role of probation officers under California law, a juvenile's request to see his officer may reflect a desire for precisely the kind of assistance Miranda guarantees an accused before he waives his Fifth Amendment rights. At the very least, such a request signals a desire to remain silent until contact with the officer is made. Because the Court's contrary determination withdraws the safeguards of Miranda from those most in need of protection, I respectfully dissent.
71
Mr. Justice POWELL, dissenting.
72
Although I agree with the Court that the Supreme Court of California misconstrued Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),1 I would not reverse the California court's judgment. This Court repeatedly has recognized that "the greatest care" must be taken to assure that an alleged confession of a juvenile was voluntary. See, e. g., In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 1458, 18 L.Ed.2d 527 (1967); Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1212, 8 L.Ed.2d 325 (1962); Haley v. Ohio, 332 U.S. 596, 599-600, 68 S.Ct. 302, 303-304, 92 L.Ed. 224 (1948) (plurality opinion). Respondent was a young person, 16 years old at the time of his arrest and the subsequent prolonged interrogation at the stationhouse. Although respondent had had prior brushes with the law, and was under supervision by a probation officer, the taped transcript of his interrogation—as well as his testimony at the suppression hearing—demonstrates that he was immature, emotional,2 and uneducated, and therefore was likely to be vulnerable to the skillful, two-on-one, repetitive style of interrogation to which he was subjected. App. 54-82.
73
When given Miranda warnings and asked whether he desired an attorney, respondent requested permission to "have my probation officer here," a request that was refused. Id., at 55. That officer testified later that he had communicated frequently with respondent, that respondent had serious and "extensive" family problems, and that the officer had instructed respondent to call him immediately "at any time he has a police contact, even if they stop him and talk to him on the street." Id., at 26-31.3 The reasons given by the probation officer for having so instructed his charge were substantially the same reasons that prompt this Court to examine with special care the circumstances under which a minor's alleged confession was obtained. After stating that respondent had been "going through problems," the officer observed that "many times the kids don't understand what is going on, and what they are supposed to do relative to police . . . ." Id., at 29. This view of the limited understanding of the average 16-year-old was borne out by respondent's question when, during interrogation, he was advised of his right to an attorney: "How I know you guys won't pull no police officer in and tell me he's an attorney?" Id., at 55. It was during this part of the interrogation that the police had denied respondent's request to "have my probation officer here." Ibid.
74
The police then proceeded, despite respondent's repeated denial of any connection to the murder under investigation, see id., at 56-60, persistently to press interrogation until they extracted a confession. In In re Gault, in addressing police interrogation of detained juveniles, the Court stated:
75
"If counsel was not present for some permissible reason when an admission was obtained [from a child], the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair." 387 U.S., at 55, 87 S.Ct., at 1458.
76
It is clear that the interrogating police did not exercise "the greatest care" to assure that respondent's "admission was voluntary."4 In the absence of counsel, and having refused to call the probation officer, they nevertheless engaged in protracted interrogation.
77
Although I view the case as close, I am not satisfied that this particular 16-year-old boy, in this particular situation, was subjected to a fair interrogation free from inherently coercive circumstances. For these reasons, I would affirm the judgment of the Supreme Court of California.
1
The petition also alleged that respondent had participated in an attempted armed robbery earlier on the same evening Yeager was murdered. The Juvenile Court, however, held that the evidence was insufficient to support this charge and it was dismissed. App. 6. No issue relating to this second charge is before the Court.
2
The California Court of Appeal, in an opinion reported and then vacated, affirmed. In re Michael C., 135 Cal.Rptr. 762 (1977). That court noted that since the Juvenile Court's findings of fact resolved against respondent his contention that the confession had been coerced from him by threats and promises, it would have to "conclude that there was a knowing and intelligent waiver of the minor's Miranda rights unless it can be said that the request to speak to a probation officer was in and of itself sufficient to invoke" respondent's Fifth Amendment privilege. Id., at 765-766 (footnote omitted). It refused to extend the rule of People v. Burton, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793 (1971), to include a request for a probation officer, finding it difficult to distinguish such a request from a request to see "one's football coach, music teacher or clergyman." 135 Cal.Rptr., at 766. Even if the Burton rule were applicable, the court held, there was sufficient evidence of an affirmative waiver of his rights by respondent to distinguish Burton, where the California Supreme Court had noted that there was "nothing in the way of affirmative proof that defendant did not intend to assert his privilege." 6 Cal.3d, at 383, 99 Cal.Rptr., at 6, 491 P.2d, at 798.
3
Two justices concurred in the court's opinion and judgment. 21 Cal.3d, at 478, 146 Cal.Rptr., at 362, 579 P.2d, at 11. They expressed concern that a probation officer's public responsibilities would make it difficult for him to offer legal advice to a minor implicated in a crime, and that a minor advised to cooperate with the police, perhaps even to confess, justifiably could complain later "that he had been subjected to a variation of the Mutt-and-Jeff technique criticized in Miranda : initial interrogating by overbearing officers, then comforting by a presumably friendly and gentle peace officer in the guise of a probation officer." Id., at 479, 146 Cal.Rptr., at 363, 579 P.2d, at 12.
Two justices dissented. Id., at 480, 146 Cal.Rptr., at 363, 579 P.2d, at 12. They would have affirmed respondent's conviction on the basis of the finding of the Juvenile Court that, in light of all the circumstances surrounding the interrogation of respondent, there was sufficient affirmative proof that respondent had waived his privilege.
The dissenters pointed out that the opinion of the court was confusing in holding, on the one hand, that the request for a probation officer was
per se an invocation of the minor's Fifth Amendment rights, and, on the other, that reversal was required because the State had not carried its burden of proving that respondent, by requesting his probation officer, did not intend thereby to assert his Fifth Amendment privilege. Ibid., 146 Cal.Rptr., at 363-364, 579 P.2d, at 12-13.
There may well be ambiguity in this regard. See id., at 477-478, 146 Cal.Rptr., at 361-362, 579 P.2d, at 11. On the basis of that ambiguity, respondent argues that the California court did not establish a per se rule, but held only that on the facts here respondent's request to see his probation officer constituted an invocation of his Fifth Amendment rights. The decision in People v. Randall, 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114 (1970), upon which the California court relied in both Burton and the present case, however, indicates that the court did indeed establish a per se rule in this case. In Randall, the court stated that even though a suspect might have invoked his Fifth Amendment rights by asking for counsel or by stating he wished to remain silent, it might be possible that subsequent voluntary statements of the accused, not prompted by custodial interrogation, would be admissible if the State could show that they were the product of the voluntary decision of the accused to waive the rights he had asserted. People v. Randall, 1 Cal.3d, at 956, and n. 7, 83 Cal.Rptr., at 663, and n. 7, 464 P.2d, at 119, and n. 7.
Randall thus indicates that the per se language employed by the California Supreme Court in this case is compatible with the finding that the State could have negated the per se effect of the request for a probation officer by showing that, notwithstanding his per se invocation of his rights, respondent later voluntarily decided to waive those rights and volunteer statements. In light of Randall, and in light of the strong per se language used by the California Supreme Court in its opinion in this case, see, e. g., 21 Cal.3d, at 477, 146 Cal.Rptr., at 361-362, 579 P.2d, at 10-11, we think that any ambiguity in that opinion must be resolved in favor of a conclusion that the court did in fact establish a per se rule.
4
Indeed, this Court has not yet held that Miranda applies with full force to exclude evidence obtained in violation of its proscriptions from consideration in juvenile proceedings, which for certain purposes have been distinguished from formal criminal prosecutions. See McKeiver v. Pennsylvania, 403 U.S. 528, 540-541, 91 S.Ct. 1976, 1983-1984, 29 L.Ed.2d 647 (1971) (plurality opinion). We do not decide that issue today. In view of our disposition of this case, we assume without deciding that the Miranda principles were fully applicable to the present proceedings.
5
When this case arose, a California statute provided that a proceeding in juvenile court to declare a minor a ward of the court was to be commenced by the filing of a petition by a probation officer. Cal. Welf. & Inst. Code Ann. § 650 (West 1972). This provision since has been amended to provide that most such petitions are to be filed by the prosecuting attorney. 1976 Cal.Stats., ch. 1071, § 20. Respondent argues that, whatever the status of the probation officer as a peace officer at the time this case arose, the amendment of § 650 indicates that in the future a probation officer is not to be viewed as a legal adversary of the accused juvenile. Consequently, respondent believes that any holding of this Court with regard to respondent's 1976 request for a probation officer will be mere dictum with regard to a juvenile's similar request today. Brief for Respondent 9-10, and n. 4.
We disagree. The fact that a California probation officer in 1976 was responsible for initiating a complaint is only one factor in our analysis. The fact remains that a probation officer does not fulfill the role in our system of criminal justice that an attorney does, regardless of whether he acts merely as a counselor or has significant law enforcement duties. And in California, as in many States, the other duties of a probation officer are incompatible with the view that he may act as a counselor to a juvenile accused of crime. The very California statute that imposes upon the probation officer the duty to represent the interests of the juvenile also provides: "It shall be the duty of the probation officer to prepare for every hearing [of criminal charges against a juvenile] a social study of the minor, containing such matters as may be relevant to a proper disposition of the case." Cal. Welf. & Inst. Code Ann. § 280 (West Supp.1979).
Similarly, a probation officer is required, upon the order of the juvenile court or the Youth Authority, to investigate the circumstances surrounding the charge against the minor and to file written reports and recommendations. §§ 281, 284. And a probation officer in California continues to have the powers and authority of a peace officer in connection with any violation of a criminal statute that is discovered by the probation officer in the coarse of his probation activities. § 283; Cal. Penal Code Ann. § 830.5 (West Supp.1970). The duties of a peace officer, like the investigative and reporting duties of probation officers, are incompatible with the role of legal adviser to a juvenile accused of crime.
1
The facts of the instant case are illustrative. When the police offered to obtain an attorney for respondent, he replied: "How I know you guys won't pull no police officer in and tell me he's an attorney?" Ante, at 710. Significantly, the police made no attempt to allay that concern. See 21 Cal.3d at 476 n. 3, 146 Cal.Rptr. at 361 n. 3, 579 P.2d, at 10 n. 3.
2
The Court intimates that construing a request for a probation officer as an invocation of the Fifth Amendment privilege would undermine the specificity of Miranda's prophylactic rules. Ante, at 718. Yet the Court concedes that the statutory duty to "advise and care for the juvenile defendant," 21 Cal.3d, at 477, 146 Cal.Rptr., at 361, 579 P.2d, at 10, distinguishes probation officers from other adults, such as coaches and clergymen. Ante, at 723. Since law enforcement officials should be on notice of such legal relationships, they would presumably have no difficulty determining whether a suspect has asserted his Fifth Amendment rights.
Although I agree with my Brother POWELL that, on the facts here, respondent was not "subjected to a fair interrogation free from inherently coercive circumstances," post, at 734, I do not believe a case-by-case approach provides police sufficient guidance, or affords juveniles adequate protection.
3
In filing the petition and performing the other functions enumerated ante, at 720-721 n. 5, the probation officer must act in the best interests of the minor. See In re Steven C., 9 Cal.App.3d 255, 264-265, 88 Cal.Rptr. 97, 101-102 (1970).
4
One thing is certain. The California Supreme Court is more familiar with the duties and performance of its probation officers than we are.
Of course, "[i]t is peculiarly within the competence of the highest court of a State to determine that in its jurisdiction the police should be subject to more stringent rules than are required as a federal constitutional minimum." Oregon v. Hass, 420 U.S. 714, 728, 95 S.Ct. 1215, 1224, 43 L.Ed.2d 570 (1975) (Marshall, J., dissenting). See also People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 (1976) (refusing to follow Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977).
1
The California Supreme Court, purporting to apply Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), stated that:
"Here . . . we face conduct which, regardless of considerations of capacity, coercion or voluntariness, per se invokes the privilege against self-incrimination." 21 Cal.3d 471, 477, 146 Cal.Rptr. 358, 362, 579 P.2d 7, 10 (1978). I agree with the Court's opinion today that Miranda cannot be read as support for any such per se rule.
2
The Juvenile Court Judge observed that he had "heard the tapes" of the interrogation, and was "aware of the fact that Michael [respondent] was crying at the time he talked to the police officers." App. 53.
3
The Supreme Court of California stated that a "probation officer is an official appointed pursuant to legislative enactment 'to represent the interests' of the juvenile [and] . . . has borne the duty to advise and care for the juvenile defendant." 21 Cal.3d, at 477, 146 Cal.Rptr., at 361, 579 P.2d, at 10.
4
Minors who become embroiled with the law range from the very young up to those on the brink of majority. Some of the older minors become fully "street-wise," hardened criminals, deserving no greater consideration than that properly accorded all persons suspected of crime. Other minors are more of a child than an adult. As the Court indicated in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the facts relevant to the care to be exercised in a particular case vary widely. They include the minor's age, actual maturity, family environment, education, emotional and mental stability, and, of course, any prior record he might have.
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442 U.S. 773
99 S.Ct. 2598
61 L.Ed.2d 251
NATIONAL LABOR RELATIONS BOARD et al., Petitioner,v.BAPTIST HOSPITAL, INC., Respondent.
No. 78-223.
Argued April 23, 1979.
Decided June 20, 1979.
Syllabus
Intervenor labor union filed unfair labor practice charges with the National Labor Relations Board with respect to respondent hospital's rule prohibiting solicitation by its employees at all times "in any area of the Hospital which is accessible to or utilized by the public," including the lobbies, gift shop, cafeteria, and entrances on the first floor, as well as corridors, sitting rooms, and public restrooms on the other floors. In justification of the rule, respondent offered extensive evidence, through the testimony of doctors and hospital officials, as to the need for the rule to prevent interference with patients' treatment and convalescence, especially as applicable in the corridors and sitting rooms adjoining or accessible to the patients' rooms on the upper floors of the hospital. After applying its presumption that the no-solicitation rule was invalid except in "immediate patient-care areas," the NLRB concluded that respondent had failed to meet the burden placed upon it by such presumption, found that there was no demonstrated likelihood that solicitation outside of "immediate patient-care areas" would disrupt patient care or disturb patients, and, accordingly, issued an order prohibiting respondent from applying the no-solicitation rule in any area of the hospital other than "immediate patient-care areas." The Court of Appeals denied enforcement of the order, holding that respondent had presented sufficient evidence of the ill effects of solicitation on patient care to justify the broad prohibition of solicitation.
Held:
1. Given the definition of "immediate patient-care areas" as areas "such as patients' rooms, operating rooms, and places where patients receive treatment," the NLRB's order prevents respondent from applying its no-solicitation rule not only to its lobbies, cafeteria, and gift shop but also to the corridors and sitting rooms that adjoin or are accessible to patients' rooms and operating and treatment rooms. Pp. 778-781.
2. The Court of Appeals correctly concluded that the NLRB lacked substantial evidence in the record to support its order forbidding any prohibition of solicitation in the corridors and sitting rooms on floors of the hospital having either patients' rooms or operating and therapy rooms. Nothing in the evidence provided any basis, with respect to those areas, for doubting the accuracy of the doctors' testimony for respondent that union solicitation in the presence or within the hearing of patients may have adverse effects on their recovery. Pp. 784-786.
3. There was, however, substantial evidence in the record to support the NLRB's conclusion that respondent had not justified the prohibition of union solicitation in the cafeteria, gift shop, and lobbies on the first floor of the hospital. While there was no evidence directly contradicting the expert testimony offered by respondent as to the importance of a tranquil hospital atmosphere to successful patient care, nevertheless, when viewed as a whole, the evidence presented by respondent may be regarded fairly as insufficient to rebut the NLRB's presumption that the needs of essential patient care do not require the banning of all solicitation in such areas. Pp. 786-787.
4. This Court does not agree with the apparent view of the Court of Appeals that the NLRB's presumption is irrational in all respects, since experience in such cases as Beth Israel Hospital v. NLRB, 437 U.S. 483, and the present one makes clear that solicitation in at least some of the public areas of hospitals often will not adversely affect patient care or disturb patients. But the evidence in this case and other similar cases does cast serious doubt on a presumption as to hospitals so sweeping that it embraces solicitation in the corridors and sitting rooms on floors occupied by patients. Pp. 787-790.
6 Cir., 576 F.2d 107, affirmed in part and vacated and remanded in part.
Norton J. Come, Deputy Associate Gen. Counsel, NLRB, Washington, D. C., for petitioner.
Laurence Gold, Washington, D. C., for intervenor-petitioner Local 150-T, Service Emp. Intern. Union.
Fred W. Elarbee, Jr., Atlanta, Ga., for respondent.
Mr. Justice POWELL, delivered the opinion of the Court.
1
This case presents the question of the validity of an order of the National Labor Relations Board (Board) prohibiting respondent, Baptist Hospital (Hospital), from enforcing any rule against solicitation by employees "on behalf of any labor organization during their nonworking time in any area of its hospital other than immediate patient care areas."
2
* The Hospital is a nonprofit general hospital with 600 beds and 1,800 employees. For several years prior to 1974, the Hospital enforced a rule against solicitation anywhere on its premises.1 The intervenor, Local 150-T, Service Employees International Union, AFL-CIO (Union), in August 1974 began a campaign to organize the Hospital's employees. The Hospital, at least partly in response to this organizational activity, promulgated a new rule prohibiting solicitation by employees at all times "in any area of the Hospital which is accessible to or utilized by the public." These areas include the lobbies, gift shop, cafeteria, and entrances on the first floor of the hospital as well as the corridors, sitting rooms, and public restrooms on the other floors. In parts of the Hospital not open to patients and their visitors, employee solicitation is allowed in work areas on nonwork time, and distributions are allowed in nonwork areas on nonwork time.2
3
The Union filed charges with the Board, which thereupon issued a complaint against the Hospital. The complaint focused primarily on the Hospital's no-solicitation rule, charging that the broad proscriptions contained in the rule violated § 8(a)(1) of the National Labor Relations Act (Act), as amended, 29 U.S.C. § 158(a)(1).3 After hearing testimonial evidence introduced by both the Hospital and the General Counsel for the Board, the Administrative Law Judge concluded that the Hospital's solicitation rule was invalid, Baptist Hospital, Inc., 223 N.L.R.B. 344, 347 (1976). The Board agreed, and issued an order that the Hospital cease and desist from "[p]romulgating, maintaining in effect, enforcing, or applying any rule or regulation prohibiting its employees from soliciting on behalf of any labor organization during their nonworking time in any area of its hospital other than immediate patient care areas." Id., at 346.4
4
The Board sought enforcement of its order by the Court of Appeals. After reviewing the evidence of record before the Board, the court concluded that the Hospital had presented evidence of the ill effects of solicitation on patient care that justified the broad prohibition of solicitation.5 The court accordingly denied enforcement of the Board's order. 576 F.2d 107 (C.A.6 1978). We granted the Board's petition for certiorari, 439 U.S. 1065, 99 S.Ct. 829, 59 L.Ed.2d 30 (1979), and now affirm in part and vacate and remand in part.
II
5
The Board, in implementing the 1974 extension of the Act to nonprofit health-care institutions,6 has modified its general rule regarding the validity of employer regulations of solicitation. Because its usual presumption that rules against solicitation on nonwork time are invalid7 gives too little weight to the need to avoid disruption of patient care and disturbance of patients in the hospital setting, the Board has indicated that it will not regard as presumptively invalid proscriptions on solicitation in immediate patient-care areas.8 In Beth Israel Hospital v. NLRB, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978), the Court considered the general acceptability of the use of this presumption by the Board.
6
At issue in Beth Israel Hospital was that hospital's rule against solicitation in its cafeteria and coffeeshop. The Court, in the course of affirming a decision of the Board that struck down the no-solicitation rule, described the Board's general approach to such rules.
7
"The Board concluded that prohibiting solicitation in [immediate patient-care areas] was justified and required striking the balance against employees' interests in organizational activity. The Board determined, however, that the balance should be struck against the prohibition in areas other than immediate patient-care areas such as lounges and cafeterias absent a showing that disruption to patient care would necessarily result if solicitation and distribution were permitted in those areas." Id., at 495, 98 S.Ct., at 2471.
8
The Court found no merit in Beth Israel's argument that the Board's use of such a presumption was inconsistent with the legislative intent underlying extension of the Act to nonprofit health-care institutions. The Congress has committed to the Board the task of striking the appropriate balance among the interests of hospital employees, patients, and employers, a role familiar to the Board in other contexts. Beth Israel Hospital v. NLRB, supra, at 496-497, 500-501, 98 S.Ct., at 2471-2472, 2473-2474, Hudgens v. NLRB, 424 U.S. 507, 521-523, 96 S.Ct. 1029, 1037-1038, 47 L.Ed.2d 196 (1976). And the balance struck by the Board—solicitation on nonwork time may be prohibited only where necessary to avoid disruption of patient care or disturbance of patients—is not inconsistent with the Act. Beth Israel Hospital v. NLRB, supra, at 497-500, 98 S.Ct., at 2471-2473. Accordingly, the Court held "that the Board's general approach of requiring health-care facilities to permit employee solicitation and distribution during nonworking time in nonworking areas, where the facility has not justified the prohibitions as necessary to avoid disruption of health-care operations or disturbance of patients, is consistent with the Act." 437 U.S., at 507, 98 S.Ct., at 2477.
9
The scope of the Board's presumption depends upon the definition of the phrase "immediate patient-care areas." The Court had no occasion in Beth Israel to determine or review the limits of the Board's definition. The attack on the no-solicitation rule at issue there focused entirely on the prohibition of solicitation in the cafeteria and coffeeshop, and the Board's order was limited to a requirement that the hospital "[r]escind its written rule prohibiting distribution of union literature and union solicitation in its cafeteria and coffeeshop." Beth Israel Hospital, 223 N.L.R.B. 1193, 1199 (1976) (emphasis added); see NLRB v. Beth Israel Hospital, 554 F.2d 477, 482 (CA1 1977), aff'd, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). The Board's definition of "immediate patient-care areas" is essential, however, to an understanding of both the operation of the presumption and the Board's final order in the present case. The Hospital's rule prohibits solicitation in all areas of the Hospital open to patients or visitors, and the complaint charged that the Hospital had violated § 8(a)(1) by maintaining an overly broad rule against solicitation. 223 N.L.R.B., at 347, 355. The Board's order covers all areas of the Hospital, and explicitly limits application of a no-solicitation rule to areas of "immediate patient care."9
10
Neither the Board nor the Administrative Law Judge mentioned in their respective opinions the exact scope that they assigned to the term "immediate patient-care areas." But, as the Court of Appeals remarked, 576 F.2d, at 109, the Board based its ruling on the analysis it had adopted in St. John's Hospital & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), enf. granted in part and denied in part, 557 F.2d 1368 (CA10 1977). See 223 N.L.R.B., at 344 n.2. In St. John's Hospital, the Board stated that immediate patient-care areas are areas "such as the patients' rooms, operating rooms, and places where patients receive treatment, such as x-ray and therapy areas." 222 N.L.R.B., at 1150. Thus, it appears that in the present case the Board assumed the validity of prohibitions on solicitation only in these limited areas, treating any broader ban as presumptively invalid. And given this definition of patient-care areas, the Board's order prevents the Hospital from applying a no-solicitation rule not only to its lobbies, cafeteria, and gift shop but also to the corridors and sitting rooms that adjoin or are accessible to patients' rooms and operating and treatment rooms.10
III
11
The Board's presumption, of course, does no more than place on the Hospital the burden of proving, with respect to areas to which it applies, that union solicitation may adversely affect patients. Accordingly, in Beth Israel the Court described the Board's presumption as a ban on the prohibition of solicitation in areas other than immediate patient-care areas "where the facility has not justified the prohibitions as necessary to avoid disruption of health care operations or disturbance of patients." 437 U.S., at 507, 98 S.Ct., at 2477, accord, id., at 495, 98 S.Ct., at 2471.11 The hospital in Beth Israel failed to introduce any evidence that the proscription of solicitation in its cafeteria and coffeeshop was necessary to prevent either disruption of patient care or disturbance of patients. The Court found that "patient the cafeteria [was] voluntary, random, and infrequent," and considered it of "critical significance that only 1.56% of the cafeteria's patrons are patients." Id., at 502, 98 S.Ct., at 2474; see also id., at 508-509, 98 S.Ct., at 2477-2478 (BLACKMUN, J., concurring in judgment); id., at 516-517, 98 S.Ct., at 2481-2482 (POWELL, J., concurring in judgment).
12
In the present case, in contrast, extensive evidence was offered, through the testimony of doctors and a hospital administrator, in justification of the no-solicitation rule. The Board, after applying its presumption to the evidence before it, concluded that the Hospital had failed to meet the burden placed upon it by the presumption. In doing so, the Board made a finding of fact that there was no demonstrated likelihood that solicitation outside of "immediate patient-care areas" would disrupt patient care or disturb patients. 223 N.L.R.B., at 357; 576 F.2d, at 109.
13
Such findings are binding on the reviewing courts, but only if they are supported by "substantial evidence on the record considered as a whole." Act, § 10(e), 29 U.S.C. § 160(e). When the Board's findings lack such support in the record, the reviewing courts must set them aside, along with the orders of the Board that rest on those findings. Administrative Procedure Act, 5 U.S.C. § 706(2)(E); Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). The Court of Appeals, exercising its reviewing function, determined that the Board's findings were contrary to the proof of record, which in its view provided adequate support for the application of the no-solicitation rule in all areas of the Hospital. We think that the correct position lies between those taken by the Board and the court below. While the Board's holding with respect to some of the areas in dispute has substantial evidentiary support in the record, the Court of Appeals was justified in concluding that the Board lacked such support for its sweeping protection of solicitation in all but "immediate patient-care areas."
14
The Hospital's Vice President for Personnel Services, Victory, testified that the no-solicitation rule was adopted because of concern about the ill effects of union organizational activity on patients. App. 5-6, 31. The general purpose of the rule, he indicated, is to protect the patients and their families from the disquiet that might result if they perceived that the Hospital's staff had concerns other than the care of patients. Id., at 12, 13. The rule rests, in Victory's words, on the Hospital's experience: "we have found that anytime we do anything that lets a patient or their [sic ] family see that we have our mind on anything but patient care, this is very disruptive to the patient and sometimes affects the patient's ability to recover." Id., at 12. The Hospital's Chief of Medical Staff, Ricketson, echoed this rationale for proscription of solicitation in any area of the Hospital open to patients or their visitors, emphasizing that the "psychological attitudes [of patients] play a good part," id., at 57, in determining the success of their treatment. See id., at 53, 57-58, 62. Another doctor, Birmingham, testified that because "[p]eople who are physically ill are more emotionally upset," it is essential to create within the Hospital the tranquillity that is most conducive to their recovery. Id., at 43-44. The Court of Appeals laid great stress on this aspect of the evidence before the Board, stating that "[t]hese witnesses, two physicians and an experienced hospital administrator, repeatedly referred to the necessity of creating and maintaining a tranquil atmosphere throughout the hospital for patients and visitors. The testimony of the medical witnesses related this requirement directly to the well-being of the patients. The witnesses made no distinction between areas of immediate patient care and other areas of the hospital." 576 F.2d, at 109-110.12
15
The evidence concerning the corridors and sitting rooms adjoining or accessible to the patients' rooms and treatment rooms on the upper floors of the Hospital provided more detailed illustration of the need for a no-solicitation rule applicable to those areas. Patients in the most critical and fragile conditions often move or are moved through these corridors, either en route to treatment in some other part of the Hospital or as part of their convalescence. App. 10, 24, 54, 64.13 The increased emphasis in modern hospitals on the mobility of patients as an important aspect of patient therapy is well known, and appears to be a part of patient care at the Hospital. Id., at 40-41, 54. Small public rooms or sitting areas on the patient-care floors, as well as the corridors themselves, provide places for patients to visit with family and friends, as well as for doctors to confer with patients' families—often during times of crisis. Id., at 24, 40, 55-56. Nothing in the evidence before the Board provided any basis, with respect to those areas of the Hospital, for doubting the accuracy of the statements made by Ricketson and Birmingham that union solicitation in the presence or within the hearing of patients may have adverse effects on their recovery. Id., at 23, 39-40, 57-58, 62.
16
The Hospital also presented uncontradicted evidence that solicitation on nonwork time is allowed in other areas even under the no-solicitation rule at issue here. These areas include the 26 nurses' stations14 and adjoining utility rooms located throughout the Hospital, two employee lounges, and the maintenance and laundry buildings. Id., at 8, 16, 25-26. Especially in view of our ruling upholding the Board's position on the first-floor lobbies, gift shop, and cafeteria, the availability of these alternative locations for solicitation, though not dispositive, lends support to the validity of the Hospital's ban on such activity in other areas of the Hospital. As the Court remarked in Beth Israel:
17
"[I]n the context of health care facilities, the importance of the employer's interest in protecting patients from disturbance cannot be gainsaid. While outside of the health care context, the availability of alternative means of communication is not, with respect to employee organizational activity, a necessary inquiry . . ., it may be that the importance of the employer's interest here demands use of a more finely calibrated scale. For example, the availability of one part of a health-care facility for organizational activity might be regarded as a factor required to be considered in evaluating the permissibility of restrictions in other areas of the same facility." 437 U.S., at 505, 98 S.Ct., at 2476.
18
We conclude that, with respect to the corridors and sitting rooms on patients' floors, the Court of Appeals correctly determined that there was no substantial evidence of record to support the Board's holding that the Hospital had failed to justify its ban on solicitation in these areas.
19
The same may not be said, however, of the cafeteria, gift shop, and lobbies on the first floor of the Hospital. No evidence directly contradicting the professional judgments of Victory, Birmingham, and Ricketson as to the importance of a tranquil hospital atmosphere to successful patient care was presented to the Board. But when viewed as a whole, the evidence presented by the Hospital may be regarded fairly as insufficient to rebut the Board's presumption that the needs of essential patient care do not require the banning of all solicitation in such areas.15 The Hospital presented no clear evidence of the frequency with which patients use the cafeteria and gift shop, or visit the lobbies on the first floor. See App. 11-13, 27, 36-38. It appears that patients normally remain on the floors of the Hospital above the first floor, with visits to the first floor only by some patients and then only occasionally. Id., at 20, 28, 35-36, 64. In fact, a patient must have special permission to leave the floor on which his room is located, as well as to take meals in the cafeteria. Id., at 54, 64; 223 N.L.R.B., at 348. From this evidence, one may conclude reasonably that only those patients who are judged fit to withstand the activities of the public areas on the first floor are allowed to visit those parts of the Hospital. Moreover, both Victory and Ricketson testified that at least some kinds of solicitation in public areas such as the cafeteria would be unlikely to have a significant adverse impact on patients or patient care. App. 10, 31-32, 62. It thus appears that there was substantial evidence in the record to support the Board's conclusion that the Hospital had not justified the prohibition of union solicitation in the cafeteria, gift shop, and lobbies on the first floor of the Hospital.
IV
20
In addition to reviewing the sufficiency of the evidence in this case to support the Board's findings and order, the Court of Appeals also adopted a broader rationale for refusing to enforce the order. "In the setting of a modern general hospital," it stated, "it is difficult to define the areas of immediate patient care." 576 F.2d at 110. Since patients visit many parts of such a hospital during their treatment and convalescence, activities anywhere in the public areas of the hospital may well affect their recovery. Thus, the Court of Appeals concluded, in effect, that the Board's presumption that solicitation outside of immediate patient-care areas does not disrupt patient care or disturb patients is irrational, and that the Board should be required to prove that solicitation in any particular patient-access area will not interfere with patients' treatment or convalescence.
21
It is, of course, settled law that a presumption adopted and applied by the Board must rest on a sound factual connection between the proved and inferred facts. As the Court stated in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 804-805, 65 S.Ct. 982, 988, 989, 89 L.Ed. 1372 (1945), "[l]ike a statutory presumption or one established by regulation, the validity [of the Board's presumption regarding the permissibility of no-solicitation rules], perhaps in a varying degree, depends upon the rationality between what is proved and what is inferred." More recently, in Beth Israel, the Court again recognized that the courts have the duty to review the Board's presumptions both "for consistency with the Act, and for rationality." 437 U.S., at 501, 98 S.Ct., at 2474.
22
We do not share the apparent view of the Court of Appeals that the Board's presumption is irrational in all respects, since experience in cases such as Beth Israel and the present one makes clear that solicitation in at least some of the public areas of hospitals often will not adversely affect patient care or disturb patients. The evidence of record in this case and other similar cases does, however, cast serious doubt on a presumption as to hospitals so sweeping that it embraces solicitation in the corridors and sitting rooms on floors occupied by patients. Since the 1974 amendments to the Act, each hospital making the attempt has overcome the effect of the Board's presumption as applied to such corridors and sitting rooms. The evidence by which the Hospital rebutted the presumption in the present case has been reviewed above. In Baylor University Medical Center v. NLRB, 188 U.S.App.D.C. 109, 578 F.2d 351 (1978), vacated in part and remanded, 439 U.S. 9, 99 S.Ct. 299, 58 L.Ed.2d 202 (1978), the evidence demonstrating the need for the prohibition of solicitation in such areas was even more extensive.
23
"The importance of preventing crowding and disruption in the hospital corridors cannot be seriously debated. Experienced witnesses testified of the extent to which congestion in the corridors impedes the operation of the medical staff and annoys patients and visitors. Quick and unimpeded passage through the hallways was shown to be imperative to the efficient operation of the hospital and to the success of certain of its emergency services, such as the cardiac arrest unit. The hallways serve not only as passageways for patients, visitors, doctors, and medicine, but also as viewing rooms for the nursery and storerooms for a variety of hospital equipment which must be available at a moment's notice. There was also testimony that a great deal of the physical therapy undertaken at [the hospital] actually took place in the corridors, and that for many departments the corridors served as the only available waiting room." 188 U.S.App.D.C., at 113-114, 578 F.2d, at 355-356 (footnotes omitted).
24
After reviewing the record in St. John's Hospital & School of Nursing, Inc. v. NLRB, 557 F.2d 1368 (CA10 1977), the court there found that the Board's presumption (first adopted in that case) was unsupported by any evidence that solicitation in such areas would not adversely affect patient care. It concluded that to save the Board's presumption, "the Board's definition of 'strictly patient care areas' must be interpreted to include such areas as halls, stairways, elevators, and waiting rooms accessible to patients." Id., at 1375.
25
Because the evidence presented by the Hospital in this case is sufficient to rebut the Board's presumption as applied to corridors and sitting rooms on patients' floors, we need not here decide the rationality of this portion of the Board's presumption, or undertake the task of framing the limits of an appropriate presumption regarding the permissibility of union solicitation in a modern hospital. Indeed, the development of such presumptions is normally the function of the Board. It must be said, however, that the experience to date raises serious doubts as to whether the Board's interpretation of its present presumption adequately takes into account the medical practices and methods of treatment incident to the delivery of patient-care services in a modern hospital.16 In its continuous review of the usefulness of its presumption, the Board should be mindful of the Court's admonition in Beth Israel.
26
" '[T]he Board [bears] a heavy continuing responsibility to review its policies concerning organizational activities in various parts of hospitals. Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique considerations that do not apply in the industrial settings with which the Board is more familiar. The Board should stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized.' " 437 U.S., at 508, 98 S.Ct., at 2477, quoting NLRB v. Beth Israel Hospital, 554 F.2d, at 481.
V
27
The Court of Appeals correctly concluded that the Board lacked substantial evidence in the record to support its order forbidding any prohibition on solicitation in the corridors and sitting rooms on floors of the Hospital housing either patients' rooms or operating and therapy rooms, and we affirm that portion of its judgment. The judgment of the Court of Appeals with respect to other parts of the Hospital is vacated, and the case is remanded for further proceedings consistent with this opinion.
28
So ordered.
29
Mr. Justice BLACKMUN, concurring.
30
I join the Court's opinion and its judgment. I write only to underline what is plainly said in the opinion, ante, at 789-790, and n. 16, that these hospital cases so often turn on the proof presented. What may be true of one hospital's gift shop and cafeteria may not be true of another's. And I continue to have difficulty perceiving any rational distinction between the Board's recognition that solicitation is inappropriate in a department store, see Beth Israel Hospital v. NLRB, 437 U.S. 483, 511-512, and nn. 2 and 3, 98 S.Ct. 2463, 2479-2480, 57 L.Ed.2d 370 (1978) (POWELL, J., concurring in judgment); id., at 508, 98 S.Ct., at 2477 (concurring opinion), and its contrary presumption with respect to the retail shop (usually operated on a not-for-profit basis) and cafeteria in the hospital. The admonition contained in the last paragraph of n. 16 of the Court's opinion, ante, at 790, cannot be overemphasized.
31
Mr. Chief Justice BURGER, concurring in the judgment.
32
I concur only in the judgment because I do not agree with the basis of the Court's opinion. The Court accepts as valid the Board's presumption that hospital rules prohibiting solicitation during nonworking time outside of "immediate patient care areas" violate employees' right to organize. The Court denies enforcement to the Board's order in part on the ground that its finding that the Hospital failed to overcome this presumption was not supported by substantial evidence.
33
I would think no "evidence" is needed to establish the proposition that the primary mission of every hospital is care and concern for the patients and that anything which tends to interfere with that objective cannot be tolerated. A religious choir singing in a hospital chapel may well be desirable but if that interferes with patient care, it cannot be allowed.
34
To be supportable a presumption cannot rest on grounds which are irrational. Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2474, 57 L.Ed.2d 370 (1978). For me, it is wholly irrational for the Board to create a presumption that removes from the hospital absolute authority to control all activity in areas devoted primarily to patient care, including all areas frequented by patients. I would place the decision on the basis that: (1) the Board's presumption is wholly invalid as applied to areas of a hospital devoted primarily to the care of patients; (2) once the Board's order is deprived of the support of the presumption it must be scrutinized to determine if it is supported by independent substantial evidence. That examination leads me to the conclusion that the Board's order is not supported by substantial evidence with respect to any of the patient-care areas or public areas above the first floor of the Hospital.
35
In short the Board's presumption is wholly invalid as applied to any area of the hospital devoted primarily to the care of patients for the reasons stated in Mr. Justice POWELL's opinion concurring in the judgment in Beth Israel Hospital, supra, at 510-514, 98 S.Ct., at 2478-2480, which I joined. A hospital differs from a factory or industrial establishment. This is especially important in light of the Board's presumption against solicitation in the analogous public areas of restaurants and retail stores. Id., at 511-513, 98 S.Ct., at 2479-2480.
36
Nothing in Beth Israel Hospital is to the contrary. There the Court stressed the necessity for continuing development and possible revision of the Board's approach to hospital employees' activities. Id., at 507-508, 98 S.Ct., at 2477. Moreover, Mr. Justice BRENNAN, speaking for the Court in that case, carefully explained that the particular cafeteria there was primarily an employee-service area, id., at 506, 98 S.Ct., at 2476, not a patient-care facility.
37
The inquiry then properly turns to whether the Board's decision was supported by substantial evidence on the record as a whole. On the basis of the evidence described by the Court, ante, at 782-786, it seems clear to me that the decision of the Board was not supported by substantial evidence with respect to public areas above the first floor of the Hospital. The fundamental issue in cases such as this is whether the employees' organizational rights affected by the hospital rules in question are superior to the hospital's needs in carrying out its mission.
38
The central "business" of a hospital is not a business in the sense that term is generally used in industrial contexts. The hospital's only purpose is the care and treatment of its patients, and I agree fully with the Court's statement that "[n]othing in the evidence before the Board provided any basis . . . for doubting the accuracy of the [testimony] that union solicitation in the presence or within the hearing of patients may have adverse effects on their recovery." Ante, at 784. The union's interest in membership solicitation in the public areas of the Hospital above the first floor was severely undercut by the availability of abundant alternative areas for such union activity. Whatever doubts there may be as to the adverse effects on patients should be resolved in favor of their protection. I would not elevate the interests of unions or employees, whose highest duty is to patients, to a higher plane than that of the patients.
39
The evidence described by the Court, ante, at 786-787, demonstrates that the gift shop on the first floor is maintained primarily for the accommodation of visitors who wish to purchase articles for patients and is not a "patient-care" area; as in Beth Israel, supra, the first floor cafeteria is not a primarily patient-care area.
40
Mr. Justice BRENNAN, with whom Mr. Justice WHITE and Mr. Justice MARSHALL join, concurring in the judgment.
41
In this case, the Court of Appeals for the Sixth Circuit found that respondent had demonstrated the special circumstances necessary to overcome the NLRB's presumption against bans on solicitation, and that there was no substantial evidence to support the Board's holding to the contrary. The scope of our review of such a Court of Appeals finding is narrowly circumscribed:
42
" 'Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.' " Beth Israel Hospital v. NLRB, 437 U.S. 483, 507, 98 S.Ct. 2463, 2477, 57 L.Ed.2d 370 (1978), quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951).
43
Because I believe that the Court of Appeals "misapprehended or grossly misapplied" the substantial-evidence rule with respect to the cafeteria, gift shop, and first-floor lobbies of Baptist Hospital, but that the same cannot be said for the patient-floor corridors and sitting rooms, I concur in the judgment of the Court.
44
* As the Court notes, "[t]he Hospital presented no clear evidence of the frequency with which patients use the cafeteria and gift shop, or visit the lobbies on the first floor," ante, at 786. See App. 11-13, 27, 36-38. In fact, the evidence demonstrated that patients normally remain on floors above the first floor, id., at 20, 28, 35-36, 64; that they must have special permission to leave the floor on which their room is located, or to eat in the cafeteria, id., at 64; Baptist Hospital, Inc., 223 N.L.R.B. 344, 348 (1976); and that only a small number of patients actually use the cafeteria, App. 50, 64; 223 N.L.R.B., at 348. See generally, ante, at 786-787. Given such evidence, the Hospital could not have overcome the Board's presumption against solicitation bans in nonimmediate patient-care areas—that is, the Hospital could not have met its affirmative burden to demonstrate that the prohibition was "necessary to avoid disruption of health-care operations or disturbance of patients," Beth Israel Hospital v. NLRB, supra, 437 U.S., at 507, 98 S.Ct., at 2477. Since there clearly was substantial evidence to support the Board's determination that the presumption was not overcome, the Court of Appeals' holding to the contrary constituted a gross misapplication of the appropriate standard of review of Board findings.*
45
The same cannot be said of the Court of Appeals' holding with respect to those corridors and sitting rooms which adjoin, or are accessible to, the patient and treatment rooms on the upper floors. There was evidence that "[p]atients in the most critical and fragile conditions often move or are moved through these corridors, either en route to treatment in some other part of the Hospital or as part of their convalescence," ante, at 784. See App. 54, 64. Considerable additional evidence, including the testimony of two doctors, suggested that in this hospital, in these areas, a prohibition of solicitation was necessary to avoid disruption of health-care operations or disturbance of patients. See ante, at 782-784. This does not mean that were this Court reviewing the evidence de novo, or even were it applying the standard of review appropriate for the Court of Appeals, it would have been inexorably driven to conclude that the presumption against no-solicitation rules was adequately overcome. But we do not sit as a court of first, or even second, instance. We cannot overturn the Court of Appeals' decision as to the substantiality of the evidence unless it misapprehended or grossly misapplied the appropriate standard of review. And given the evidence presented on the questions concerning the upper floors of the hospital, I cannot say that the appellate court so erred here.
II
46
Both this opinion, and that of the Court, base their dispositions of the Board's petition upon the evidence presented in this case; neither rejects the legality of the presumption which the Board applied. See ante, at 789. In dicta, however, the Court questions the application of the presumption to the corridors and sitting rooms of floors occupied by patients. See ante, at 788-789. I do not share these sentiments.
47
"[T]he development of . . . presumptions is normally the function of the Board," ante, at 789, and its conclusions on such matters are traditionally accorded considerable deference. See NLRB v. Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978); NLRB v. Weingarten, Inc., 420 U.S. 251, 266-267, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975). Beth Israel Hospital v. NLRB, 437 U.S., at 500-501, 98 S.Ct., at 2473-2474, made it clear that Board decisions in the health-care area are no exception to this rule. Although it is true that hospitals "give rise to unique considerations that do not apply in . . . industrial settings," and that the Board should therefore "stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized," ante, at 790, quoting Beth Israel Hospital v. NLRB, supra, at 508, 98 S.Ct., at 2478, it is also true that the Board has shown itself to be sensitive to the difference between the hospital and the industrial workplace. Indeed, the very presumption at issue in this case reflects that sensitivity. As the Court itself notes:
48
"Because its usual presumption that rules against solicitation on nonwork time are invalid gives too little weight to the need to avoid disruption of patient care and disturbance of patients in the hospital setting, the Board has indicated that it will not regard as presumptively invalid proscriptions on solicitation in immediate patient-care areas." Ante, at 778.
49
Judges, like most of the rest of the public, experience hospitals solely as patients. It is the Board, by contrast, which confronts every day the complexities of labor relations policy in the health-care area. And it is for that reason "that the 1974 amendments vested responsibility" in the Board "for developing that policy in the health-care industry." Beth Israel Hospital v. NLRB, 437 U.S., at 501, 98 S.Ct., at 2474. As we explained in Beth Israel:
50
"Here, as in many other contexts of labor policy, '[t]he ultimate problem is the balancing of the conflicting legitimate interests. The 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.' . . . The judicial role is narrow: The rule which the Board adopts is judicially reviewable for consistency with the Act, and for rationality, but if it satisfies those criteria, the Board's application of the rule, if supported by substantial evidence on the record as a whole must be enforced." Ibid.
51
At this stage, I do not believe there is any warrant for second-guessing the Board's handling of its "difficult and delicate responsibility" in this sensitive area of labor-management relations.
1
The rule read:
"In order to protect employees from any form of solicitation, raffle, charity drives, etc., it is strictly prohibited for anyone to solicit patients or visitors while on hospital premises without written approval from Administration. Violation of this policy will subject employee to disciplinary action. Employees who discover persons making unauthorized solicitation should report this immediately to their Supervisor."
This rule was adopted primarily to keep salesmen out of the Hospital. Baptist Hospital, Inc., 223 N.L.R.B. 344, 348, 357 (1976), enf. granted in part and denied in part, 576 F.2d 107 (CA6 1978).
2
The new rule governing solicitation in the Hospital provides:
"No solicitations of any kind, including solicitations for memberships or subscriptions, will be permitted by employees at any time, including work time and non-work time in any area of the Hospital which is accessible to or utilized by the public. Anyone who does so will be subject to disciplinary action. In those work areas of the Hospital not accessible to or utilized by the public, no solicitations of any kind, including solicitations for memberships or subscriptions will be permitted at any time by employees who are supposed to be working, or in such a way as to interfere with the work of other employees who are supposed to be working. Anyone who does so and thereby neglects his work or interferes with the work of others will likewise be subject to disciplinary action.
"No distributions of any kind, including circulars or other printed materials, shall be permitted in any work area at any time."
All of the parties agree that the restrictions on solicitation and distribution imposed with respect to areas of the Hospital not accessible to patients and the public are in conformity with existing law.
3
Section 8(a)(1), as set forth in 29 U.S.C. § 158(a)(1), makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights [of self-organization and collective bargaining] guaranteed in section 157 of [Title 29]."
The complaint also charged that the Hospital had violated § 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), by discriminating against an employee, Russell French, on account of his union organizational activities. The Board sustained this charge, ordering the Hospital to reinstate French and pay him any wages lost because of such discrimination. French died before the decision of the case in the Court of Appeals, leaving only the issue of backpay. The Court of Appeals, after concluding that the Hospital's no-solicitation rule did not violate § 8(a)(1), remanded to the Board for a determination of what portions of the backpay previously ordered were unrelated to the Hospital's no-solicitation rule. 576 F.2d, at 111. Neither the Board nor the Hospital has questioned this disposition of the § 8(a)(3) claim.
4
Section 1(a) of the Board's order; see 223 N.L.R.B., at 346. In § 2(b) of its order, the Board also directed the Hospital to rescind its existing no-solicitation rule "to the extent that it prohibits its employees from soliciting on behalf of a labor organization during their nonworking time in any nonworking area of the Hospital including those areas open to the public." 223 N.L.R.B., at 346, 361.
5
The court also noted that the proscription of solicitation and distribution did not extend to the Hospital's parking lots. "[I]n denying enforcement of the Board's order we construe the hospital's . . . rule to apply only to areas within the various buildings occupied by the hospital and those exterior areas immediately adjacent to entrances used by patients and the public." 576 F.2d, at 111. This conclusion comports with the testimony given at the administrative hearing on the Board's complaint. App. 34, 45, 63.
6
Act of July 26, 1974, 88 Stat. 395; see Beth Israel Hospital v. NLRB, 437 U.S. 483, 485, and n.1, 98 S.Ct. 2463, 2466, 57 L.Ed.2d 370 (1978).
7
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803-804, and n.10, 65 S.Ct. 982, 987-988, 89 L.Ed. 1372 (1945).
8
The Board first announced this modification of the presumption in St. John's Hospital & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), enf. granted in part and denied in part, 557 F.2d 1368 (CA10 1977). The Board has applied its modified presumption in a number of subsequent cases involving union organizational activities in hospitals, including, in addition to the present case, Beth Israel Hospital, 223 N.L.R.B. 1193 (1976), enf'd, 554 F.2d 477 (CA1 1977), aff'd, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978); Lutheran Hospital of Milwaukee, 224 N.L.R.B. 176 (1976), enf. granted in part and denied in part, 564 F.2d 208 (CA7 1977), vacated and remanded, 438 U.S. 902, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978); Baylor University Medical Center, 225 N.L.R.B. 771 (1976), enf. granted in part and denied in part, 188 U.S.App.D.C. 109, 578 F.2d 351, vacated in part and remanded, 439 U.S. 9, 99 S.Ct. 299, 58 L.Ed.2d 202 (1978); St. Joseph Hospital, 228 N.L.R.B. 158 (1977).
9
The order recommended by the ALJ was phrased in terms of "nonworking areas" (Hospital forbidden to interfere with solicitation on nonworking time in "nonworking areas"), but the Board substituted an order prohibiting interference with solicitation on nonwork time in areas other than those for "immediate patient care." 223 N.L.R.B., at 346, 361.
10
Although the Board has never published a more definite list of "immediate patient-care areas" than the one included in St. John's Hospital & School of Nursing, Inc., nothing in its subsequent opinions has suggested that the Board views areas other than patients' rooms, operating rooms, and treatment rooms as areas of immediate patient care. In Baylor University Medical Center v. NLRB, 188 U.S.App.D.C., at 110-111, 578 F.2d, at 352-353, for example, the corridors of the hospital as well as its cafeteria were excluded by the Board from "immediate patient-care areas."
11
The Court's restatement of the Board's presumption makes it clear that a hospital may overcome the presumption by showing that solicitation is likely either to disrupt patient care or disturb patients. The distinction is an important one. Solicitation may disrupt patient care if it interferes with the health-care activities of doctors, nurses, and staff, even though not conducted in the presence of patients. And solicitation that does not impede the efforts of those charged with the responsibility of caring for patients nonetheless may disturb patients exposed to it.
12
Mr. Justice BLACKMUN has commented perceptively on the importance of maintaining a peaceful and relaxed atmosphere within hospitals.
"Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day's activity, and where the patient and his family—irrespective of whether that patient and that family are labor or management oriented—need a restful, uncluttered, relaxing, and helpful atmosphere, rather than one remindful of the tensions of the marketplace in addition to the tensions of the sick bed." Beth Israel Hospital v. NLRB, 437 U.S., at 509, 98 S.Ct., at 2478 (concurring in judgment).
13
Although the elevators and stairways in every hospital also are used by patients moving and being moved to and from various treatment areas, the Hospital presented no specific evidence regarding these areas, and the Board made no specific finding as to them.
14
The Hospital exempts nurses' stations from the ban on solicitation in areas that are accessible to patients and visitors, but does subject them to the prohibition against solicitation in work areas on working time. App. 18-19, 25. The Hospital's acceptance of solicitation in nurses' stations during employees' nonworking time appears to rest on the partition of these stations from surrounding areas open to patients, and on the use of the stations by employees on breaks from work. Id., at 25-26. It may well be that in other hospitals, solicitation in these critical areas would threaten to disturb patients or disrupt patient care since there are always some employees on duty there.
15
The courts of appeals are required to review the substantiality of evidence to support the Board's findings "on the record considered as a whole," 29 U.S.C. § 160(e) (emphasis added). Here, it appears that the Court of Appeals failed to give appropriate weight to the evidence favorable to the Board regarding the cafeteria, gift shop, and lobbies.
16
The Board, in reviewing the scope and application of its presumption, should take into account that a modern hospital houses a complex array of facilities and techniques for patient care and therapy that defy simple classification. Patients not undergoing treatment at the moment are cared for in a variety of settings—recovery rooms, intensive-care units, patients' rooms, wards, sitting rooms, and even the corridors, where patients often are encouraged to walk, or to visit with their families. In different hospitals, the use and physical layout of such a variety of areas may require varying resolutions of questions about the validity of bans on union solicitation. In addition, outpatient clinics such as the Hospital's emergency room and "shortstay" unit, App. 28, 35, may raise special considerations because of the nature of the services rendered to patients there.
Some corridors in some hospitals, as well as elevators and stairways, may be used neither for treatment nor for care, but may be of great importance in the movement of patients (and emergency equipment) through the hospital. Id., at 54; see Baylor University Medical Center v. NLRB, 188 U.S.App.D.C., at 113-114, 578 F.2d, at 355-356. Still another group of areas, including cafeterias and gift shops, also may present difficult problems regarding the validity of no-solicitation rules. As Mr. Justice BLACKMUN noted in his opinion concurring in the judgment in Beth Israel, "[t]here are many hospital coffeeshops and cafeterias that are primarily patient and patient-relative oriented, despite the presence of employee-patrons." 437 U.S., at 509, 98 S.Ct., at 2477.
In discharging its responsibility for administration of the Act, the Board must frame its rules and administer them with careful attention to the wide variety of activities within the modern hospital. The Union, and other labor organizations involved before the Board in cases similar to the present one, have adopted this view, urging the Board to abandon the simplistic "immediate patient care" criterion. See Brief for Intervenor 38-42.
*
The Court of Appeals' misapplication of the standard of review of evidence may have been partially due to its misapprehension of the legal merits of the Board's presumption as applied to cafeterias. Although the court based its holding primarily upon a factual finding that the Hospital "did carry its burden in the present case" to establish the circumstances justifying a ban on solicitation, it also questioned the legal distinction which the Board makes between hospital cafeterias and public restaurants. See 576 F.2d 107, 110 (1978). The Court of Appeals noted that the Board's insistence upon applying the presumption to the former, while not applying it to the latter, was rejected by the Court of Appeals for the District of Columbia Circuit in Baylor University Medical Center v. NLRB, 188 U.S.App.D.C. 109, 578 F.2d 351 (1978).
Subsequent to the Court of Appeals decision below, we upheld the NLRB's distinction between public and hospital cafeterias, Beth Israel Hospital v. NLRB, 437 U.S., at 505-507, 98 S.Ct., at 2476-2477, and vacated the decision of the Court of Appeals for the District of Columbia Circuit on that question. See NLRB v. Baylor University Medical Center, 439 U.S. 9, 99 S.Ct. 299, 58 L.Ed.2d 202 (1978). It may well be that had the court below had the benefit of our decision in Beth Israel, it might have viewed more favorably the Board's findings concerning Baptist Hospital's cafeteria.
| 67
|
442 U.S. 735
99 S.Ct. 2577
61 L.Ed.2d 220
Michael Lee SMITH, Petitioner,v.State of MARYLAND.
No. 78-5374.
Argued March 28, 1979.
Decided June 20, 1979.
Syllabus
The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland Court of Appeals affirmed.
Held: The installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746.
(a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Pp. 2579-2580.
(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police, cf. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71. Pp. 741-746.
283 Md. 156, 389 A.2d 858, affirmed.
Howard L. Cardin, Baltimore, Md., for petitioner.
Stephen H. Sachs, Baltimore, Md., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the question whether the installation and use of a pen register1 constitutes a "search" within the meaning of the Fourth Amendment,2 made applicable to the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
2
* On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. Tr. 66-68. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. Id., at 70. On March 16, police spotted a man who met McDonough's description driving a 1975 Monte Carlo in her neighborhood. Id., at 71-72. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith. Id., at 72.
3
The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home. Id., at 73, 75. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner's home to McDonough's phone. Id., at 74. On the basis of this and other evidence, the police obtained a warrant to search petitioner's residence. Id., at 75. The search revealed that a page in petitioner's phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Ibid. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her. Id., at 70-71.
4
Petitioner was indicted in the Criminal Court of Baltimore for robbery. By pretrial motion, he sought to suppress "all fruits derived from the pen register" on the ground that the police had failed to secure a warrant prior to its installation. Record 14; Tr. 54-56. The trial court denied the suppression motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Id., at 63. Petitioner then waived a jury, and the case was submitted to the court on an agreed statement of facts. Id., at 65-66. The pen register tape (evidencing the fact that a phone call had been made from petitioner's phone to McDonough's phone) and the phone book seized in the search of petitioner's residence were admitted into evidence against him. Id., at 74-76. Petitioner was convicted, id., at 78, and was sentenced to six years. He appealed to the Maryland Court of Special Appeals, but the Court of Appeals of Maryland issued a writ of certiorari to the intermediate court in advance of its decision in order to consider whether the pen register evidence had been properly admitted at petitioner's trial. 283 Md. 156, 160, 389 A.2d 858, 860 (1978).
5
The Court of Appeals affirmed the judgment of conviction, holding that "there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system and hence no search within the fourth amendment is implicated by the use of a pen register installed at the central offices of the telephone company." Id., at 173, 389 A.2d, at 867. Because there was no "search," the court concluded, no warrant was needed. Three judges dissented, expressing the view that individuals do have a legitimate expectation of privacy regarding the phone numbers they dial from their homes; that the installation of a pen register thus constitutes a "search"; and that, in the absence of exigent circumstances, the failure of police to secure a warrant mandated that the pen register evidence here be excluded. Id., at 174, 178, 389 A.2d, at 868, 870. Certiorari was granted in order to resolve indications of conflict in the decided cases as to the restrictions imposed by the Fourth Amendment on the use of pen registers.3 439 U.S. 1001, 99 S.Ct. 609, 58 L.Ed.2d 676 (1978).
II
A.
6
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In determining whether a particular form of government-initiated electronic surveillance is a "search" within the meaning of the Fourth Amendment,4 our lodestar is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Katz, Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a "search" can occur only when there has been a "physical intrusion" into a "constitutionally protected area," noting that the Fourth Amendment "protects people, not places." Id., at 351-353, 88 S.Ct., at 511-512. Because the Government's monitoring of Katz' conversation "violated the privacy upon which he justifiably relied while using the telephone booth," the Court held that it "constituted a 'search and seizure' within the meaning of the Fourth Amendment." Id., at 353, 88 S.Ct., at 512.
7
Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action. E. g., Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, and n. 12 (1978); id., at 150, 151, 99 S.Ct., at 434, 435 (concurring opinion); id., at 164, 99 S.Ct., at 441 (dissenting opinion); United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); United States v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 1623, 48 L.Ed.2d 71 (1976); United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973); Couch v. United States, 409 U.S. 322, 335-336, 93 S.Ct. 611, 619-620, 34 L.Ed.2d 548 (1973); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971) (plurality opinion); Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968). This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," 389 U.S., at 361, 88 S.Ct., at 516 whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." Id., at 351, 88 S.Ct., at 511. The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable,' " id., at 361, 88 S.Ct., at 516—whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the circumstances. Id., at 353, 88 S.Ct., at 512.5 See Rakas v. Illinois, 439 U.S., at 143-144 n. 12, 99 S.Ct., at 430; id., at 151, 99 S.Ct., at 434 (concurring opinion); United States v. White, 401 U.S., at 752, 91 S.Ct., at 1126 (plurality opinion).
B
8
In applying the Katz analysis to this case, it is important to begin by specifying precisely the nature of the state activity that is challenged. The activity here took the form of installing and using a pen register. Since the pen register was installed on telephone company property at the telephone company's central offices, petitioner obviously cannot claim that his "property" was invaded or that police intruded into a "constitutionally protected area." Petitioner's claim, rather, is that, notwithstanding the absence of a trespass, the State, as did the Government in Katz, infringed a "legitimate expectation of privacy" that petitioner held. Yet a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications. This Court recently noted:
9
"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." United States v. New York Tel. Co., 434 U.S. 159, 167, 98 S.Ct. 364, 369, 54 L.Ed.2d 376 (1977).
10
Given a pen register's limited capabilities, therefore, petitioner's argument that its installation and use constituted a "search" necessarily rests upon a claim that he had a "legitimate expectation of privacy" regarding the numbers he dialed on his phone.
11
This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud and preventing violations of law." United States v. New York Tel. Co., 434 U.S., at 174-175, 98 S.Ct., at 373. Electronic equipment is used not only to keep billing records of toll calls, but also "to keep a record of all calls dialed from a telephone which is subject to a special rate structure." Hodge v. Mountain States Tel. & Tel. Co., 555 F.2d 254, 266 (CA9 1977) (concurring opinion). Pen registers are regularly employed "to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling." Note, The Legal Constraints upon the Use of the Pen Register as a Law Enforcement Tool, 60 Cornell L.Rev. 1028, 1029 (1975) (footnotes omitted). Although most people may be oblivious to a pen register's esoteric functions, they presumably have some awareness of one common use: to aid in the identification of persons making annoying or obscene calls. See, e. g., Von Lusch v. C & P Telephone Co., 457 F.Supp. 814, 816 (Md.1978); Note, 60 Cornell L.Rev., at 1029-1030, n. 11; Claerhout, The Pen Register, 20 Drake L.Rev. 108, 110-111 (1970). Most phone books tell subscribers, on a page entitled "Consumer Information," that the company "can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls." E. g., Baltimore Telephone Directory 21 (1978); District of Columbia Telephone Directory 13 (1978). Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.
12
Petitioner argues, however, that, whatever the expectations of telephone users in general, he demonstrated an expectation of privacy by his own conduct here, since he "us[ed] the telephone in his house to the exclusion of all others." Brief for Petitioner 6 (emphasis added). But the site of the call is immaterial for purposes of analysis in this case. Although petitioner's conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed. Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.
13
Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not "one that society is prepared to recognize as 'reasonable.' " Katz v. United States, 389 U.S., at 361, 88 S.Ct., at 516. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. E. g., United States v. Miller, 425 U.S., at 442-444, 96 S.Ct., at 1623-1624; Couch v. United States, 409 U.S., at 335-336, 93 S.Ct., at 619-620; United States v. White, 401 U.S., at 752, 91 S.Ct., at 1126 (plurality opinion); Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). In Miller, for example, the Court held that a bank depositor has no "legitimate 'expectation of privacy' " in financial information "voluntarily conveyed to . . . banks and exposed to their employees in the ordinary course of business." 425 U.S., at 442, 96 S.Ct., at 1624. The Court explained:
14
"The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Id., at 443, 96 S.Ct., at 1624.
15
Because the depositor "assumed the risk" of disclosure, the Court held that it would be unreasonable for him to expect his financial records to remain private.
16
This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. Tr. of Oral Arg. 3-5, 11-12, 32. We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.
17
Petitioner argues, however, that automatic switching equipment differs from a live operator in one pertinent respect. An operator, in theory at least, is capable of remembering every number that is conveyed to him by callers. Electronic equipment, by contrast can "remember" only those numbers it is programmed to record, and telephone companies, in view of their present billing practices, usually do not record local calls. Since petitioner, in calling McDonough, was making a local call, his expectation of privacy as to her number, on this theory, would be "legitimate."
18
This argument does not withstand scrutiny. The fortuity of whether or not the phone company in fact elects to make a quasi-permanent record of a particular number dialed does not in our view, make any constitutional difference. Regardless of the phone company's election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record. In these circumstances, petitioner assumed the risk that the information would be divulged to police. Under petitioner's theory, Fourth Amendment protection would exist, or not, depending on how the telephone company chose to define local-dialing zones, and depending on how it chose to bill its customers for local calls. Calls placed across town, or dialed directly, would be protected; calls placed across the river, or dialed with operator assistance, might not be. We are not inclined to make a crazy quilt of the Fourth Amendment, especially in circumstances where (as here) the pattern of protection would be dictated by billing practices of a private corporation.
19
We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not "legitimate." The installation and use of a pen register, consequently, was not a "search," and no warrant was required. The judgment of the Maryland Court of Appeals is affirmed.
20
It is so ordered.
21
Mr. Justice POWELL took no part in the consideration or decision of this case.
22
Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, dissenting.
23
I am not persuaded that the numbers dialed from a private telephone fall outside the constitutional protection of the Fourth and Fourteenth Amendments.
24
In Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, the Court acknowledged the "vital role that the public telephone has come to play in private communication[s]." The role played by a private telephone is even more vital, and since Katz it has been abundantly clear that telephone conversations carried on by people in their homes or offices are fully protected by the Fourth and Fourteenth Amendments. As the Court said in United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2135, 32 L.Ed.2d 752, "the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards." (Footnote omitted.)
25
Nevertheless, the Court today says that those safeguards do not extend to the numbers dialed from a private telephone, apparently because when a caller dials a number the digits may be recorded by the telephone company for billing purposes. But that observation no more than describes the basic nature of telephone calls. A telephone call simply cannot be made without the use of telephone company property and without payment to the company for the service. The telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or overheard by the use of other company equipment. Yet we have squarely held that the user of even a public telephone is entitled "to assume that the words he utters into the mouthpiece will not be broadcast to the world." Katz v. United States, supra, 389 U.S., at 352, 88 S.Ct., at 512.
26
The central question in this case is whether a person who makes telephone calls from his home is entitled to make a similar assumption about the numbers he dials. What the telephone company does or might do with those numbers is no more relevant to this inquiry than it would be in a case involving the conversation itself. It is simply not enough to say, after Katz, that there is no legitimate expectation of privacy in the numbers dialed because the caller assumes the risk that the telephone company will disclose them to the police.
27
I think that the numbers dialed from a private telephone—like the conversations that occur during a call—are within the constitutional protection recognized in Katz.1 It seems clear to me that information obtained by pen register surveillance of a private telephone is information in which the telephone subscriber has a legitimate expectation of privacy.2 The information captured by such surveillance emanates from private conduct within a person's home or office—locations that without question are entitled to Fourth and Fourteenth Amendment protection. Further, that information is an integral part of the telephonic communication that under Katz is entitled to constitutional protection, whether or not it is captured by a trespass into such an area.
28
The numbers dialed from a private telephone—although certainly more prosaic than the conversation itself—are not without "content." Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life.
29
I respectfully dissent.
30
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
31
The Court concludes that because individuals have no actual or legitimate expectation of privacy in information they voluntarily relinquish to telephone companies, the use of pen registers by government agents is immune from Fourth Amendment scrutiny. Since I remain convinced that constitutional protections are not abrogated whenever a person apprises another of facts valuable in criminal investigations, see, e. g., United States v. White, 401 U.S. 745, 786-790, 91 S.Ct. 1122, 1143-1145, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting); id., at 795-796, 91 S.Ct., at 1147-1148 (MARSHALL, J., dissenting); California Bankers Assn. v. Shultz, 416 U.S. 21, 95-96, 94 S.Ct. 1494, 1534, 39 L.Ed.2d 812 (1974) (MARSHALL, J., dissenting); United States v. Miller, 425 U.S. 435, 455-456, 96 S.Ct. 1619, 1629-1630, 48 L.Ed.2d 71 (1976) (MARSHALL, J., dissenting), I respectfully dissent.
32
Applying the standards set forth in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), the Court first determines that telephone subscribers have no subjective expectations of privacy concerning the numbers they dial. To reach this conclusion, the Court posits that individuals somehow infer from the long-distance listings on their phone bills, and from the cryptic assurances of "help" in tracing obscene calls included in "most" phone books, that pen registers are regularly used for recording local calls. See ante, at 742-743. But even assuming, as I do not, that individuals "typically know" that a phone company monitors calls for internal reasons, ante, at 743,1 it does not follow that they expect this information to be made available to the public in general or the government in particular. Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes. See California Bankers Assn. v. Shultz, supra, 416 U.S., at 95-96, 94 S.Ct., at 1534 (MARSHALL, J., dissenting).
33
The crux of the Court's holding, however, is that whatever expectation of privacy petitioner may in fact have entertained regarding his calls, it is not one "society is prepared to recognize as 'reasonable'." Ante, at 743. In so ruling, the Court determines that individuals who convey information to third parties have "assumed the risk" of disclosure to the government. Ante, at 744,745. This analysis is misconceived in two critical respects.
34
Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications. See, e. g., Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462 (1963); Hoffa v. United States, 385 U.S. 293, 302-303, 87 S.Ct. 408, 413-414, 17 L.Ed.2d 374 (1966); United States v. White, supra, 401 U.S., at 751-752, 91 S.Ct., at 1125-1126 (plurality opinion). By contrast here, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance. Cf. Lopez v. United States, supra, 373 U.S., at 465-466, 83 S.Ct., at 1401-1402 (BRENNAN, J., dissenting). It is idle to speak of "assuming" risks in contexts where, as a practical matter, individuals have no realistic alternative.
35
More fundamentally, to make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections. For example, law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications. See Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 384, 407 (1974). Yet, although acknowledging this implication of its analysis, the Court is willing to concede only that, in some circumstances, a further "normative inquiry would be proper." Ante, at 740-741 n. 5. No meaningful effort is made to explain what those circumstances might be, or why this case is not among them.
36
In my view, whether privacy expectations are legitimate within the meaning of Katz depends not on the risks an individual can be presumed to accept when imparting information to third parties, but on the risks he should be forced to assume in a free and open society. By its terms, the constitutional prohibition of unreasonable searches and seizures assigns to the judiciary some prescriptive responsibility. As Mr. Justice Harlan, who formulated the standard the Court applies today, himself recognized: "[s]ince it is the task of the law to form and project, as well as mirror and reflect, we should not . . . merely recite . . . risks without examining the desirability of saddling them upon society." United States v. White, supra, 401 U.S., at 786, 91 S.Ct., at 1143 (dissenting opinion). In making this assessment, courts must evaluate the "intrinsic character" of investigative practices with reference to the basic values underlying the Fourth Amendment. California Bankers Assn. v. Shultz, 416 U.S., at 95, 94 S.Ct., at 1534 (MARSHALL, J., dissenting). And for those "extensive intrusions that significantly jeopardize [individuals'] sense of security . . . . more than self-restraint by law enforcement officials is required." United States v. White, supra, 401 U.S., at 786, 91 S.Ct., at 1143 (Harlan, J., dissenting).
37
The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise ignores the vital role telephonic communication plays in our personal and professional relationships, see Katz v. United States, 389 U.S., at 352, 88 S.Ct., at 511, as well as the First and Fourth Amendment interests implicated by unfettered official surveillance. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. See NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958); Branzburg v. Hayes, 408 U.S. 665, 695, 92 S.Ct. 2646, 2663, 33 L.Ed.2d 626 (1972); id., at 728-734, 92 S.Ct., at 2673-2676 (STEWART, J., dissenting). Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity,2 I am unwilling to insulate use of pen registers from independent judicial review.
38
Just as one who enters a public telephone booth is "entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world," Katz v. United States, supra, 389 U.S., at 352, 88 S.Ct., at 512, so too, he should be entitled to assume that the numbers he dials in the privacy of his home will be recorded, if at all, solely for the phone company's business purposes. Accordingly, I would require law enforcement officials to obtain a warrant before they enlist telephone companies to secure information otherwise beyond the government's reach.
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." United States v. New York Tel. Co., 434 U.S. 159, 161 n. 1, 98 S.Ct. 364, 366 n. 1, 54 L.Ed.2d 376 (1977). A pen register is "usually installed at a central telephone facility [and] records on a paper tape all numbers dialed from [the] line" to which it is attached. United States v. Giordano, 416 U.S. 505, 549 n. 1, 94 S.Ct. 1820, 1842 n. 1, 40 L.Ed.2d 341 (1974) (opinion concurring in part and dissenting in part). See also United States v. New York Tel. Co., 434 U.S., at 162, 98 S.Ct., at 367.
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." U.S.Const., Amdt. 4.
3
See Application of United States for Order, 546 F.2d 243, 245 (CA8 1976), cert. denied, sub nom. Southwestern Bell Tel. Co. v. United States, 434 U.S. 1008, 98 S.Ct. 716, 54 L.Ed.2d 750 (1978); Application of United States in Matter of Order, etc., 538 F.2d 956, 959-960 (CA2 1976), rev'd on other grounds sub nom. United States v. New York Tel. Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977); United States v. Falcone, 505 F.2d 478, 482, and n. 21 (CA3 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975); Hodge v. Mountain States Tel. & Tel. Co., 555 F.2d 254, 256 (CA9 1977); id., at 266 (concurring opinion); and United States v. Clegg, 509 F.2d 605, 610 (CA5 1975). In previous decisions, this Court has not found it necessary to consider whether "pen register surveillance [is] subject to the requirements of the Fourth Amendment." United States v. New York Tel. Co., 434 U.S., at 165 n. 7, 98 S.Ct., at 369 n. 7. See United States v. Giordano, 416 U.S., at 554 n. 4, 94 S.Ct., at 1845 (opinion concurring in part and dissenting in part).
4
In this case, the pen register was installed, and the numbers dialed were recorded, by the telephone company. Tr. 73-74. The telephone company, however, acted at police request. Id., at 73, 75. In view of this, respondent appears to concede that the company is to be deemed an "agent" of the police for purposes of this case, so as to render the installation and use of the pen register "state action" under the Fourth and Fourteenth Amendments. We may assume that "state action" was present here.
5
Situations can be imagined, of course, in which Katz' two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation's traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual's subjective expectations had been "conditioned" by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a "legitimate expectation of privacy" existed in such cases, a normative inquiry would be proper.
1
It is true, as the Court pointed out in United States v. New York Tel. Co., 434 U.S. 159, 166-167, 98 S.Ct. 364, 369, 54 L.Ed.2d 376, that under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, pen registers are not considered "interceptions" because "they do not acquire the 'contents' of communications," as that term is defined by Congress. We are concerned in this case, however, not with the technical definitions of a statute, but with the requirements of the Constitution.
2
The question whether a defendant who is not a member of the subscriber's household has "standing" to object to pen register surveillance of a private telephone is, of course, distinct. Cf. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387.
1
Lacking the Court's apparently exhaustive knowledge of this Nation's telephone books and the reading habits of telephone subscribers, see ante, at 742-743, I decline to assume general public awareness of how obscene phone calls are traced. Nor am I persuaded that the scope of Fourth Amendment protection should turn on the concededly "esoteric functions" of pen registers in corporate billing, ante, at 742, functions with which subscribers are unlikely to have intimate familiarity.
2
See, e. g., Reporters Committee For Freedom of Press v. American Tel. & Tel. Co., 192 U.S.App.D.C. 376, 593 F.2d 1030 (1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979); Halperin v. Kissinger, 434 F.Supp. 1193 (DC 1977); Socialist Workers Party v. Attorney General, 463 F.Supp. 515 (SDNY 1978).
| 01
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442 U.S. 682
99 S.Ct. 2545
61 L.Ed.2d 176
CALIFANO, Secretary of Health, Education and Welfarev.YAMASAKI et al.
No. 77-1511.
Argued March 19, 1979
Decided June 20, 1979
Section 204(a)(1) of the Social Security Act (Act) authorizes the Secretary of the Department of Health, Education, and Welfare to recoup erroneous overpayments made to a beneficiary under the old-age, survivors', or disability insurance programs by decreasing future payments to which the overpaid person is entitled. However, § 204 (b) commands that "there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment would defeat the purpose of this subchapter or would be against equity and good conscience." Under the Secretary's practice, after an ex parte determination is made under § 204 (a) that an overpayment has been made, and after the recipient is notified of that determination, the recipient may file a written request seeking reconsideration of the determination or asking the Secretary to waive recovery in accordance with § 204 (b). If, upon review of the papers, the decision goes against the recipient, recoupment begins and the recipient is given an opportunity for an oral hearing only if he thereafter continues to object to recoupment. The recipient may seek subsequent administrative review, and finally may seek review by a federal court under § 205 (g) of the Act, which provides that any person, after any final decision of the Secretary made after a hearing to which he was a party, may obtain review of the decision by instituting a civil action. Respondents, who had unsuccessfully sought administrative relief from recoupment determinations, instituted federal actions, alleging that because they had not been given adequate notice and an opportunity for an oral hearing before recoupment began, the recoupment procedures violated both § 204 and the Due Process Clause of the Fifth Amendment. In each action, class certification was sought, and in one action it was requested that the class be nationwide. The respective District Courts granted class certification, held that the Secretary's recoupment procedures were unconstitutional, and ordered injunctive relief. The Court of Appeals consolidated the cases on appeal and upheld the certification of the classes. On the merits, the court, without directly addressing respondents' statutory claims, held, inter alia, that when waiver of recoupment was requested pursuant to § 204(b), the Due Process Clause required that the recipient be given an oral hearing before recoupment began, but that a prior hearing was not required in § 204(a) reconsideration cases if the dispute centered on a computational error or a payment problem not demanding an evaluation of credibility.
Held:
1. Recipients who file a written request for waiver under § 204(b) are entitled to the opportunity for a prerecoupment oral hearing, but those who merely request reconsideration under § 204(a) are not so entitled. Pp. 692-697.
(a) On its face, § 204 requires that the Secretary make a prerecoupment waiver decision, and that the decision, like that concerning the fact of the overpayment, be accurate. Pp. 693-695.
(b) Neither § 204 nor the standards of the Due Process Clause require prerecoupment oral hearings as to requests under § 204(a) for reconsideration as to whether overpayment occurred. The rare instance in which a credibility dispute is relevant to a § 204(a) claim is not sufficient to require the Secretary to grant a hearing to the few requests that involve credibility. However, with respect to § 204(b) waiver of the Secretary's right to recoup, the nature of the statutory standards involving determinations of "fault" and whether recoupment would be "against equity and good conscience" makes a prerecoupment oral hearing essential when a recipient requests waiver. Pp. 695-697.
2. Nothing in § 205(g) prohibits the prerecoupment hearing relief awarded in this case. Pp. 697-706.
(a) Where a district court has jurisdiction over the claims of the members of the class in accordance with the requirements set out in § 205(g), it also has discretion under Fed.Rule Civ.Proc. 23 to certify a class action for the litigation of those claims. Pp. 698-701.
(b) There was no abuse of discretion in certifying a nationwide class. Pp.701-703
(c) While the classes certified here exceed the bounds permitted by § 205(g)'s "final decision" requirement because they include persons who have not filed requests for reconsideration or waiver in the past and will not do so in the future, nevertheless there is no basis for altering the relief actually granted, as it did not include those who do not meet such requirement. Pp. 703-704.
(d) Injunctive relief may be awarded in a § 205(g) proceeding, nothing in either the language or the legislative history of the statute indicating that Congress intended to preclude injunctive relief. Pp. 704-706.
564 F.2d 1219, affirmed in part and reversed in part.
Peter Buscemi, Washington, D. C., for petitioner, pro hac vice, by special leave of Court.
Stanley E. Levin, Honolulu, Hawaii, for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Petitioner, the Secretary of the Department of Health, Education, and Welfare (HEW), has determined that respondents, beneficiaries under the Social Security Act, have been overpaid. He seeks to recoup those overpayments by withholding future benefits to which respondents would otherwise be entitled. Respondents in turn have requested reconsideration or waiver of recoupment under § 204 of the Act, 42 U.S.C. § 404. The primary questions in this case are whether petitioner must grant respondents the opportunity for an oral hearing before recoupment begins, and whether jurisdiction under § 205(g) of the Act, 42 U.S.C. § 405(g), permits a federal district court to certify a nationwide class and grant injunctive relief.
2
* Section 204(a)(1) of the Social Security Act, 53 Stat. 1368, as amended, 42 U.S.C. § 404(a)(1), authorizes the recovery of overpayments made to a beneficiary under the old-age, survivors', or disability insurance programs administered by HEW. In particular, it permits the Secretary to recoup erroneous overpayments by decreasing future payments to which the overpaid person is entitled.
3
Section 204(b), however, expressly limits the recoupment authority conferred by § 204(a)(1). Section 204(b), as set forth in 42 U.S.C. § 404(b), commands that
4
"there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience."1
5
The Secretary has undertaken to define the terms employed in § 204(b). Under his regulations, "without fault" means that the recipient neither knew nor should have known that the overpayment or the information on which it was based was incorrect. 20 CFR § 404.507 (1978). For example, a recipient who justifiably relied upon erroneous information from an official source within the Social Security Administration would be "without fault." § 404.510.
6
The regulations say that to "defeat the purpose of the subchapter" is to "deprive a person of income required for ordinary and necessary living expenses." § 404.508(a). Those expenses are defined to include, among other things, food, rent, and medical bills. §§ 404.508(a)(1) and (2). Recoupment is "against equity and good conscience" when the recipient "because of a notice that such payment would be made or by reason of the incorrect payment, relinquished a valuable right . . . or changed his position for the worse." § 404.509. An example of detrimental reliance that would be sufficient is permitting private hospital insurance to lapse in the mistaken expectation of receiving federal hospital benefits. Ibid.
7
The Secretary's practice is to make an ex parte determination under § 204(a) that an overpayment has been made, to notify the recipient of that determination, and then to shift to the recipient the burden of either (i) seeking reconsideration to contest the accuracy of that determination, or (ii) asking the Secretary to forgive the debt and waive recovery in accordance with § 204(b).2 If a recipient files a written request for reconsideration or waiver, recoupment is deferred pending action on that request. Social Security Claims Manual §§ 5503.2(c), 5503.4(b) (Dec. 1978) (Claims Manual). The papers are sent to one of the seven regional offices where the request is reviewed.
8
If the regional office decision goes against the recipient, recoupment begins. The recipient's monthly benefits are reduced or terminated3 until the overpayment has been recouped. Only if the recipient continues to object is he given an opportunity to present his story in person to someone with authority to decide his case. That opportunity takes the form of an on-the-record de novo evidential hearing before an independent hearing examiner. 20 CFR §§ 404.917, 404.931 (1978). The recipient may seek subsequent review by the Appeals Council, § 404.945, and finally by a federal court. § 205(g) of the Act, 42 U.S.C. § 405(g). If it is decided that the Secretary's initial determination was in error, the amounts wrongfully recouped are repaid.
II
The Elliott Case4
9
The Secretary overpaid the Hawaii respondents,5 and notified them of his determination to recoup the overpayments. After unsuccessful attempts to obtain administrative relief, they brought suit in the United States District Court for the District of Hawaii challenging the legality of the Secretary's recoupment procedures. They alleged that, because the notice they received was inadequate and because they were not given an opportunity for an oral hearing before recoupment began, the recoupment procedures violated both § 204 of the Act and the Fifth Amendment of the Constitution. They sought class certification, and requested both declaratory and injunctive relief that would require the Secretary to cease future recoupment until such time as he provided the class with adequate notice and opportunity for a hearing. App. 11-21.
10
The District Court certified a class of "all social security old age and disability benefit recipients resident in the State of Hawaii, who are being or will be subjected to adjustment of their social security benefits pursuant to 42 U.S.C. §§ 404(a) and (b) without adequate prior notice of the grounds for such action and without a prior hearing on disputed issues relating to such actions." Id., at 35. The court found jurisdiction under the mandamus statute, 28 U.S.C. § 1361, and granted relief to respondents. The court said that due process required that the Secretary provide an opportunity for an informal oral hearing before an independent decision maker prior to recoupment. In so holding, the court relied on Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), which determined that, under the Due Process Clause, a statutory right to welfare benefits could not be terminated without prior notice and opportunity for an evidential hearing. The court also held that the Constitution required that the initial overpayment notice be modified to inform the recipient more fully concerning recoupment procedures. Although the court did not discuss respondents' statutory claim, it granted judgment for respondents on both statutory and constitutional grounds and ordered injunctive relief for the class. Elliott v. Weinberger, 371 F.Supp. 960 (1974).
The Buffington Case
11
Relying on annual earnings reports, the Secretary determined that the individual respondents in Buffington had been overpaid for previous years.6 After receiving notice, both named respondents sought administrative relief, but were unable to halt recoupment. They then brought suit in the United States District Court for the Western District of Washington. They, too, alleged that the Secretary's recoupment procedures were contrary to both § 204 and the Due Process Clause of the Fifth Amendment. They requested certification of a nationwide class, an injunction ordering repayment of amounts unlawfully withheld, and declaratory and mandamus relief that would require the Secretary to provide notice and an opportunity for a hearing before recoupment began again. App. 188-201.
12
The District Court certified a nationwide class composed of "all individuals eligible for [old-age and survivors' benefits] whose benefits have been or will be reduced or otherwise adjusted without prior notice and opportunity for a hearing." The court, however, excluded from the class residents of Hawaii and the Eastern District of Pennsylvania, where suits raising similar issues were known to have been brought. Id., at 259. See, e. g., Mattern v. Weinberger, 519 F.2d 150 (CA3 1975). As a precautionary measure, the court also excluded all persons who had participated as plaintiffs or members of a plaintiff class in litigation against the Secretary on similar issues, if a decision on the merits previously had been rendered. App. 259-260.
13
The court then granted summary judgment for the class. The court found jurisdiction under the mandamus statute, 28 U.S.C. § 1361.7 It enjoined the Secretary from ordering recoupment without having provided recipients with a prior opportunity for an informal hearing before an independent decision maker. The court also ordered that the initial notice be amended to provide more information about recoupment procedures. Buffington v. Weinberger, Civ. No. 734-73C2 (W.D.Wash. Oct. 22, 1974). App. 262-265.
The Court of Appeals
14
The United States Court of Appeals for the Ninth Circuit consolidated the two cases for disposition on appeal. In an unreported opinion, Elliott v. Weinberger, Nos. 74-1611 and 74-3118 (Oct. 1, 1975), App. to Pet. for Cert. 40A-84A, that court found that the complaints presented substantial constitutional questions and so § 1361 mandamus jurisdiction was proper. It upheld the certification of the classes under Fed.Rule Civ.Proc. 23(b)(2), finding counsel was sufficiently skilled and experienced to represent the class. It rejected the Secretary's contention that a nationwide class should not have been certified. It found nothing in Rule 23 indicating that such a class was improper, and it believed as a practical matter that, because respondents did not seek damages, no manageability problems were present. It indicated that to require recipients to sue individually would result in an unnecessary duplication of actions, the evil that Rule 23 was designed to prevent. On the merits, the Court of Appeals, without directly addressing respondents' statutory claims, affirmed the holdings that the Secretary's recoupment procedures were unconstitutional.
15
Subsequent to that decision, this Court, in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), held that the Due Process Clause does not require an oral hearing prior to termination of Social Security disability insurance benefits. We then granted petitions for writs of certiorari filed by the Secretary both in this case and in Mattern, supra, vacated the judgments below, and remanded the cases for further consideration in light of Eldridge. 425 U.S. 987, 96 S.Ct. 2196, 48 L.Ed.2d 812 (1976).
16
On remand, the Court of Appeals adhered to the essential features of its original decision. Elliott v. Weinberger, 564 F.2d 1219 (1977). The court reaffirmed its holding that it had jurisdiction under the mandamus statute. It noted that, while Eldridge had indicated that named plaintiffs would be able to assert jurisdiction based on § 205(g) under Weinberger v. Salfi, 422 U.S. 749, 755, 764, 95 S.Ct. 2457, 2462, 2466, 45 L.Ed.2d 522 (1975), there was some doubt as to whether that statute would provide jurisdiction for a class action seeking injunctive relief, and therefore the extraordinary remedy of mandamus could be invoked. The court found that these actions were not foreclosed by the jurisdictional limitations contained in § 205(h), because these actions were brought to enforce constitutional rights, not "to recover on any claim" for benefits.
17
On the merits, the court found Eldridge distinguishable. One of three grounds cited in support of this conclusion is of particular relevance here. The court expressly found that the Secretary's procedures for handling waivers created an undue risk of erroneous deprivation. It said that, unlike the medical decision at issue in Eldridge, the grant of a waiver frequently depended on credibility, which could not be ascertained from the written submission on which the Secretary relied. The court thus held that when waiver was requested, the Due Process Clause required that the recipient be given an oral hearing before recoupment begins. The court said a prior hearing was not required, however, in § 204(a) reconsideration cases if the dispute was a routine one centering on a computational error or a payment problem that did not demand an evaluation of credibility.8 The court specified six requirements that the oral hearing should meet, including rights to receive notice, to submit evidence, to cross-examine witnesses, to have counsel, to have an impartial hearing officer, and to receive a written decision. The court did not require that a transcript of the hearing be made. 564 F.2d, at 1235.
18
The court also held that the notice must be "plainly and clearly communicated." Ibid. The court suggested that this could be accomplished by including in the notice such matters as the reason for overpayment, a statement of the right to request reconsideration or waiver, the forms available for that purpose, a description of the nature of reconsideration and waiver, and notice of the right to a prerecoupment hearing. Id., at 1236.
19
The Secretary filed a petition for a writ of certiorari seeking review of both the holding that the Due Process Clause required a prerecoupment oral hearing, and the determination that the class was properly certified. The Secretary, however, did not request review of the holding that his notice of recoupment was constitutionally defective. Certiorari was granted. Califano v. Elliott, 439 U.S. 816, 99 S.Ct. 75, 58 L.Ed.2d 106 (1978).
III
20
A court presented with both statutory and constitutional grounds to support the relief requested usually should pass on the statutory claim before considering the constitutional question. New York City Transit Authority v. Beazer, 440 U.S. 568, 582-583, and n. 22, 99 S.Ct. 1355, 1364, 59 L.Ed.2d 587 (1979); United States v. CIO, 335 U.S. 106, 110, 68 S.Ct. 1349, 1351, 92 L.Ed. 1849 (1948); Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (concurring opinion). Due respect for the coordinate branches of government, as well as a reluctance when conscious of fallibility to speak with our utmost finality, see Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (1953) (Jackson, J., concurring in result), counsels against unnecessary constitutional adjudication. And if "a construction of the statute is fairly possible by which [a serious doubt of constitutionality] may be avoided," Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932), a court should adopt that construction. In particular, this Court has been willing to assume a congressional solicitude for fair procedure, absent explicit statutory language to the contrary. See Greene v. McElroy, 360 U.S. 474, 507-508, 79 S.Ct. 1400, 1419-1420, 3 L.Ed.2d 1377 (1959).
21
The District Courts and Court of Appeals in the cases now before us gave these principles somewhat short shrift in declining to pass expressly on respondents' contention that § 204 itself requires a prerecoupment oral hearing. We turn to the statute first, and find that it fairly may be read to require a prerecoupment decision by the Secretary. With respect to § 204(a) reconsideration as to whether overpayment occurred, we agree that the statute does not require that the decision involve a prior oral hearing, and we reject respondents' contention that the Constitution does so. With respect to § 204(b) waiver of the Secretary's right to recoup, however, because the nature of the statutory standards makes a hearing essential, we find it unnecessary to determine whether the Constitution would require a similar result.
A.
22
On its face, § 204 requires that the Secretary make a pre-recoupment waiver decision, and that the decision, like that concerning the fact of the overpayment, be accurate. In the imperative voice,9 it says "there shall be no adjustment of payments to, or recovery by the United States from, any person" who qualifies for waiver. See Mattern v. Weinberger, 519 F.2d, at 166, and n. 32. Echoing this requirement, § 204(a) says that only "proper" adjustments or recoveries are to be made. The implication is that a recoupment from a person qualifying under § 204(b) would not be "proper."
23
Insofar as § 204 is read to require a prerecoupment decision, the reading is in accord with the manner in which the Secretary presently administers the statute. No recoupment is made until a preliminary waiver or reconsideration decision has taken place, either by default after the recipient has received proper notice, or by review of a written request. Claims Manual §§ 5503.2(c), 5503.4(b). This interpretation is also reinforced by a comparison with other sections of the Social Security Act. Section 204 is strikingly unlike § 225,10 which expressly permits suspension of disability benefits before eligibility is finally decided. See Richardson v. Wright, 405 U.S. 208, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972). On the other hand, an analogy may be drawn between § 204 and § 303(a)(1), 42 U.S.C. § 503(a)(1), which this Court in California Human Resources Dept. v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971), interpreted to require payment of unemployment benefits pending a final determination of eligibility.11 Neither § 204 nor § 303(a)(1) expressly addresses the timing of a hearing, but both speak in mandatory terms and imply that the mandated act—here waiver of recoupment, there payment of benefits—is to precede other action.
B
24
The heart of the present dispute concerns not whether a prerecoupment decision should be made, but whether making the decision by regional office review of the written waiver request is sufficient to protect the recipient's right not to be subjected to an improper recoupment.
25
In this regard, requests for reconsideration under § 204(a), as to whether overpayment occurred, may be distinguished from requests for waiver of the Secretary's right to recoup under § 204(b). As the Court of Appeals in this case and in Mattern noted, requests under § 204(a) for reconsideration involve relatively straightforward matters of computation for which written review is ordinarily an adequate means to correct prior mistakes. Elliott, 564 F.2d, at 1231; Mattern v. Mathews, 582 F.2d 248, at 255-256 (CA3 1978). Many of the named respondents were found to have been overpaid based on earnings reports they themselves had submitted. But unlike the Court of Appeals in this case, we do not think that the rare instance in which a credibility dispute is relevant to a § 204(a) claim is sufficient to require the Secretary to sift through all requests for reconsideration and grant a hearing to the few that involve credibility. The statute authorizes only "proper" recoupment, but some leeway for practical administration must be allowed. Nor do the standards of the Due Process Clause, more tolerant than the strict language here in issue, require that prerecoupment oral hearings be afforded in § 204(a) cases. The nature of a due process hearing is shaped by the "risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions." Mathews v. Eldridge, 424 U.S., at 344, 96 S.Ct., at 907. It would be inconsistent with that principle to require a hearing under § 204(a) when review of a beneficiary's written submission is an adequate means of resolving all but a few § 204(a) disputes. Mattern, 582 F.2d, at 258.
26
By contrast, written review hardly seems sufficient to discharge the Secretary's statutory duty to make an accurate determination of waiver under § 204(b). Under that subsection, the Secretary must assess the absence of "fault" and determine whether or not recoupment would be "against equity and good conscience." These standards do not apply under § 204(a). The Court previously has noted that a "broad 'fault' standard is inherently subject to factual determination and adversarial input." Mitchell v. W. T. Grant Co., 416 U.S. 600, 617, 94 S.Ct. 1895, 1905, 40 L.Ed.2d 406 (1974). As the Secretary's regulations make clear, "fault" depends on an evaluation of "all pertinent circumstances" including the recipient's "intelligence . . . and physical and mental condition" as well as his good faith. 20 CFR § 404.507 (1978). We do not see how these can be evaluated absent personal contact between the recipient and the person who decides his case. Evaluating fault, like judging detrimental reliance, usually requires an assessment of the recipient's credibility, and written submissions are a particularly inappropriate way to distinguish a genuine hard luck story from a fabricated tall tale. See Goldberg v. Kelly, 397 U.S., at 269, 90 S.Ct., at 1021.
27
The consequences of the injunctions entered by the District Courts confirm the reasonableness of interpreting § 204(b) to require a prerecoupment oral hearing. In compliance with those orders, the Secretary, beginning with calendar year 1977, has granted what respondents term "a short personal conference with an impartial employee of the Social Security Administration at which time the recipient presents testimony and evidence and cross-examines witnesses, and the administrative employee questions the recipient." Brief for Respondents 46. Of the approximately 2,000 conferences held between January 1977 and October 1978, 30% resulted in a reversal of the Secretary's decision. Brief for Petitioner 46. This rate of reversal confirms the view that, without an oral hearing, the Secretary may misjudge a number of cases that he otherwise would be able to assess properly, and that the hearing requirement imposed by the Court of Appeals significantly furthers the statutory goal that "there shall be no" recoupment when waiver is appropriate. We therefore agree with the Court of Appeals that an opportunity for a pre-recoupment oral hearing is required when a recipient requests waiver under § 204(b).
IV
28
Without full consideration of the question, the Court of Appeals expressed doubts about the availability of full relief under § 205(g), the Act's judicial review provision. It therefore invoked the extraordinary remedy of mandamus, for which jurisdiction is provided by 28 U.S.C. § 1361. In this Court, the Secretary contends that mandamus is not appropriate. And though he concedes that jurisdiction over the claims of the named plaintiffs was proper under § 205(g), he argues that class relief is inappropriate under that section. The Secretary contends in the alternative that even if class relief were appropriate, a nationwide class should not have been certified, and, because the classes here include individuals who have not filed for reconsideration or waiver, relief was awarded to persons over whom the courts had no § 205(g) jurisdiction. The Secretary also contends that injunctive relief cannot be awarded in a § 205(g) suit. While we do not reject the Secretary's contentions entirely, we find that nothing in § 205(g) prohibits the pre-recoupment hearing relief awarded in this case, and so we do not reach the question whether mandamus would otherwise be available.
A.
29
The Secretary argues that class relief is not available in connection with any action brought under § 205(g),12 and therefore that class relief should not have been afforded in this case. In making this argument, the Secretary relies on the language of § 205(g) which authorizes suit by "[a]ny individual," speaks of judicial review of "any final decision of the Secretary made after a hearing to which [the plaintiff] was a party," and empowers district courts "to enter . . . a judgment affirming, modifying, or reversing the decision of the Secretary." This language, the Secretary says, indicates that Congress contemplated a case-by-case adjudication of claims under § 205(g) that is incompatible with class relief.
30
The Secretary contends that the decision in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), finding class relief inappropriate on the facts of that case, and the legislative history of § 205(g)13 support his argument in this regard. And though the Secretary concedes that every Court of Appeals that has considered this issue has concluded that class relief is available under § 205(g),14 he distinguishes those cases on the grounds they evinced insufficient respect for the statute's plain language and exaggerated the need for class relief in § 205(g) actions. Restricted judicial review will not have a detrimental effect on the administration of the Social Security Act, the Secretary says, because he will appeal adverse decisions or abide them within the jurisdiction of the courts rendering them. There is thus no need for repetitious litigation in order to establish legal principles beyond the confines of a particular case and no need to afford class relief in cases brought under § 205(g).
31
Section 205(g) contains no express limitation of class relief. It prescribes that judicial review shall be by the usual type of "civil action" brought routinely in district court in connection with the array of civil litigation. Federal Rule Civ.Proc. 1, in turn, provides that the Rules "govern the procedure in the United States district courts in all suits of a civil nature." (Emphasis added.) Those Rules provide for class actions of the type certified in this case. Fed.Rule Civ.Proc. 23(b)(2). In the absence of a direct expression by Congress of its intent to depart from the usual course of trying "all suits of a civil nature" under the Rules established for that purpose, class relief is appropriate in civil actions brought in federal court, including those seeking to overturn determinations of the departments of the Executive Branch of the Government in cases where judicial review of such determinations is authorized.
32
We do not find in § 205(g) the necessary clear expression of congressional intent to exempt actions brought under that statute from the operation of the Federal Rules of Civil Procedure. The fact that the statute speaks in terms of an action brought by "any individual" or that it contemplates case-by-case adjudication does not indicate that the usual Rule providing for class actions is not controlling, where under that Rule certification of a class action otherwise is permissible. Indeed, a wide variety of federal jurisdictional provisions speak in terms of individual plaintiffs, but class relief has never been thought to be unavailable under them. See, e. g., 28 U.S.C. § 1343 (civil rights; provides jurisdiction over civil actions "authorized by law to be commenced by any person"); 28 U.S.C. § 1361 (mandamus; empowers federal courts to compel certain Government officials and agencies "to perform a duty owed to the plaintiff"); 29 U.S.C. § 1132(a) (Employee Retirement Income Security Act of 1974 provides jurisdiction over a civil action brought under the Act "by a participant or beneficiary"). It is not unusual that § 205(g), like these other jurisdictional statutes, speaks in terms of an individual plaintiff, since the Rule 23 class-action device was designed to allow an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.
33
Moreover, class relief is consistent with the need for case-by-case adjudication emphasized by the Secretary, at least so long as the membership of the class is limited to those who meet the requirements of § 205(g). See Norton v. Mathews, 427 U.S. 524, 535-537, 96 S.Ct. 2771, 2776-2778, 49 L.Ed.2d 672 and nn. 4-8 (1976) (STEVENS, J., dissenting). Where the district court has jurisdiction over the claim of each individual member of the class, Rule 23 provides a procedure by which the court may exercise that jurisdiction over the various individual claims in a single proceeding.
34
Finally, we note that class relief for claims such as those presented by respondents in this case is peculiarly appropriate. The issues involved are common to the class as a whole. They turn on questions of law applicable in the same manner to each member of the class. The ultimate question is whether a prerecoupment hearing is to be held, and each individual claim has little monetary value. It is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue. And the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every social security beneficiary to be litigated in an economical fashion under Rule 23.
35
We therefore agree that where the district court has jurisdiction over the claims of the members of the class in accordance with the requirements set out in § 205(g), it also has the discretion under Fed.Rule Civ.Proc. 23 to certify a class action for the litigation of those claims.
B
36
The Secretary next argues that, assuming class actions in fact may be maintained under § 205(g), it was error for the courts here to sustain the nationwide class in the Buffington litigation. He argues that a nationwide class is unwise in that it forecloses reasoned consideration of the same issues by other federal courts and artificially increases the pressure on the docket of this Court by endowing with national importance issues that, if adjudicated in a narrower context, might not require our immediate attention. Moreover, the Secretary, citing Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977), as an example, argues that nationwide class relief is inconsistent with the rule that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.
37
Nothing in Rule 23, however, limits the geographical scope of a class action that is brought in conformity with that Rule. Since the class here was certified in accordance with Rule 23(b)(2), the limitations on class size associated with Rule 23(b)(3) actions do not apply directly. Nor is a nationwide class inconsistent with principles of equity jurisprudence, since the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class. Dayton Board, 433 U.S., at 414-420, 97 S.Ct., at 2772-2775. If a class action is otherwise proper, and if jurisdiction lies over the claims of the members of the class, the fact that the class is nationwide in scope does not necessarily mean that the relief afforded the plaintiffs will be more burdensome than necessary to redress the complaining parties.
38
We concede the force of the Secretary's contentions that nationwide class actions may have a detrimental effect by foreclosing adjudication by a number of different courts and judges, and of increasing, in certain cases, the pressures on this Court's docket. It often will be preferable to allow several courts to pass on a given class claim in order to gain the benefit of adjudication by different courts in different factual contexts. For this reason, a federal court when asked to certify a nationwide class should take care to ensure that nationwide relief is indeed appropriate in the case before it, and that certification of such a class would not improperly interfere with the litigation of similar issues in other judicial districts. But we decline to adopt the extreme position that such a class may never be certified. The certification of a nationwide class, like most issues arising under Rule 23, is committed in the first instance to the discretion of the district court. On the facts of this case we cannot conclude that the District Court in Buffington abused that discretion especially in light of its sensitivity to ongoing litigation of the same issue in other districts, and the determination that counsel was adequate to represent the class.
C
39
The Secretary concedes that the named plaintiffs have satisfied the requirements of § 205(g) jurisdiction.15 He argues, however, that the District Courts erred in awarding relief to class members who have been subjected to recoupment but who have not sought either reconsideration of overpayment determinations or waiver of recovery. The Secretary contends that these class members have failed to obtain a "final decision" from the Secretary as required by § 205(g), as construed in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
40
The relief to which the Secretary objects in this Court is the determination that he must afford class members an opportunity for a prerecoupment oral hearing. With respect to that relief, the classes certified were plainly too broad. Both the Elliott and the Buffington classes included persons who had not filed requests for reconsideration or waiver in the past and would not do so in the future.16 As to them, no "final decision" concerning the right to a prerecoupment hearing has been or will be made.
41
The Secretary errs, however, in suggesting that the lower courts ordered that an opportunity for a prerecoupment oral hearing be afforded to those persons. The Court of Appeals aptly summarized its holding, and that of the District Courts, as being that recipients are entitled to the opportunity for a hearing "when they claim a waiver." 564 F.2d, at 1222. Because the procedure for claiming waiver involves filing a written request with the Secretary, we cannot agree that the Court of Appeals ordered this relief for those who do not meet the jurisdictional prerequisites of § 205(g). The Secretary's objection to the class definition is well taken, but it provides no basis for altering the relief actually granted in this case.
D
42
Finally, the Secretary contends that the District Courts erred in granting injunctive relief. He argues that the grant of jurisdiction found in § 205(g), which speaks only of the power to enter a judgment "affirming, modifying, or reversing the decision of the Secretary," does not encompass the equitable power to direct that the statute be implemented through procedures other than those authorized by the Secretary. Invoking the maxim that equitable relief is appropriate only when a party has no adequate remedy at law, he says that respondents would have an adequate remedy if a court simply reversed the Secretary's decision not to grant them prerecoupment oral hearings. In the face of such an order, he would be forced, he says, to suspend recoupment until the recipient was afforded a hearing.
43
The Secretary's reading of the statute is too grudging. Absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction. See Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946); Scripps-Howard Radio v. FCC, 316 U.S. 4, 9-11, 62 S.Ct. 875, 86 L.Ed. 1229 (1942). Nothing in either the language or the legislative history17 of § 205(g) indicates that Congress intended to preclude injunctive relief in § 205(g) suits.
44
Injunctions can play an essential role in § 205(g) litigation. Without the power to order a stay of recoupment pending decision, a court for all practical purposes would be unable to "reverse" a decision concerning prerecoupment rights. In class actions, injunctions may be necessary to protect the interests of absent class members and to prevent repetitive litigation. While the grant of injunctive relief makes the Secretary's duty to comply enforceable by contempt order, "[s]urely Congress did not intend § 205(g) to provide reluctant federal officials with a means of delay in the remote eventuality that they might not feel bound by the judgment of a federal court." Norton v. Mathews, 427 U.S., at 535, 96 S.Ct., at 2777 (dissenting opinion). The conclusion that injunctive relief is available under § 205(g) is supported both by our implicit holding that a three-judge court was properly convened in Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), and by the opinions of four Courts of Appeals.18
V
45
For these reasons, we hold that recipients who file a written request for waiver under § 204(b) are entitled to the opportunity for a prerecoupment oral hearing; that those who merely request reconsideration under § 204(a) are not so entitled; that class certification is permissible under § 205(g); that the Buffington court did not abuse its discretion in certifying a nationwide class; that the class did exceed the bounds permitted by § 205(g), but that the class members who received relief all satisfied the § 205(g) requirement that a request for waiver be filed; and that injunctive relief may be awarded in a § 205(g) proceeding.
46
The judgment of the Court of Appeals is therefore affirmed in part and reversed in part.
47
It is so ordered.
48
Mr. Justice POWELL took no part in the consideration or decision of this case.
1
In pertinent part, § 204(a), as set forth in 42 U.S.C. § 404(a), provides:
"Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, as follows:
"(1) With respect to payment to a person [of] more than the correct amount, the Secretary shall decrease any payment under this subchapter to which such overpaid person is entitled, or shall require such overpaid person or his estate to refund the amount in excess of the correct amount, or shall decrease any payment under this subchapter payable to his estate or to any other person on the basis of the wages and self-employment income which were the basis of the payments to such overpaid person, or shall apply any combination of the foregoing."
Section 204(b), as set forth in 42 U.S.C. § 404(b), reads in full:
"In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience."
2
Although during 1977 the average overpayment to old-age and survivors' insurance beneficiaries who were overpaid exceeded $500, only 3.4% of those thus subject to recoupment sought waiver. Brief for Petitioner 45, and n. 33. These figures do not include disability beneficiaries. Ibid. See also Elliott v. Weinberger, 371 F.Supp. 960, 967 (D.C.Haw.1974).
3
The Secretary has altered his procedures in several respects since the initiation of this litigation, including: (i) rather than terminate all benefits until recoupment is completed, the Secretary now in nonfraud cases usually reduces the recipient's monthly payments by only 25%, see Claims Manual § 5515 (Jan. 1979); and (ii) recipients who report excessive earnings and are found to have been overpaid now receive notice before, rather than after, recoupment begins. See Elliott v. Weinberger, 564 F.2d 1219, 1223 (CA9 1977). Neither party contends that these changes moot this case.
4
Respondent Evelyn Elliott died in 1973. Counsel for the respondent class moved to substitute Nancy Yamasaki as the respondent named in the caption of the case in this Court, and that motion was granted. 441 U.S. 959, 99 S.Ct. 2402, 60 L.Ed.2d 1063 (1979). In order to be consistent with the heretofore published reports of these cases, we refer to the decisions in the District Courts and Court of Appeals by their original captions.
5
For respondents Isabelle Ortiz, Jordan Silva, and John Vaquilar, the Secretary's determination was based on annual excess earnings reports they filed. The Secretary determined that respondents Raymond Gaines and Nancy Yamasaki were overpaid because of administrative errors. Elliott v. Weinberger, 371 F.Supp., at 965-966.
6
Respondent Fannie Buffington received wife's benefits. Her husband filed a report which revealed that his earnings had exceeded the statutory limit. Respondent Frances Biner was asked to file an earnings report for 1972 after a check with her employer showed that her earnings exceeded those previously reported. Elliott v. Weinberger, 564 F.2d, at 1224-1225.
7
The District Court also asserted jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Thereafter, in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), however, this Court held that that Act does not provide a grant of federal-court jurisdiction. Respondents do not rely on that statute here.
8
The United States Court of Appeals for the Third Circuit on remand reaffirmed its prior holding that the Due Process Clause required an oral hearing prior to recoupment when waiver was requested under § 204(b), but it said that no such hearing was ever required when reconsideration was requested under § 204(a). Mattern v. Mathews, 582 F.2d 248 (1978), cert. pending sub nom. Califano v. Mattern, No. 78-699.
9
A number of statutes authorizing the recovery of federal payments make an exception for cases that are "against equity and good conscience." Most are entirely permissive. They provide that recovery "is not required," e. g., 10 U.S.C. §§ 1442, 1453 (serviceman's family annuity and survivors' benefit); or that an agency "may waive" recovery if a proper showing is made, 5 U.S.C. § 4108(c) (civil service training expenses), 5 U.S.C. § 5922(b)(2) (foreign station allowances); or that the agency
head "shall make such provision as he finds appropriate", 42 U.S.C. § 1383(b) (supplemental security income); or simply that recovery "may be waived," 10 U.S.C. § 2774(a) (military pay).
In contrast, § 204 is mandatory in form. It says "there shall be no" recovery when waiver is proper. In this regard, it resembles the "equity and good conscience" waiver provisions found in only four other statutes: 38 U.S.C. § 3102(a) (veterans' benefits); 42 U.S.C. § 1395gg(c) (Medicare); 45 U.S.C. § 231i(c) (Railroad Retirement Act of 1974); 45 U.S.C. § 352(d) (Railroad Unemployment Insurance Act). Even those statutes are not identical to § 204 in all material respects. While the use of the word "shall," particularly with reference to an equitable decision, does not eliminate all discretion, see Hecht Co. v. Bowles, 321 U.S. 321, 327-331, 64 S.Ct. 587, 590-592, 88 L.Ed. 754 (1944), it at least imposes on the Secretary a duty to decide. And here where the provision for recovery, § 204(a), and the provision for waiver, § 204(b), are phrased in equally mandatory terms, it is reasonable to infer that in this particular statute Congress did not intend to exalt recovery over waiver.
The legislative history of § 204(b) indicates merely that Congress intended to make recovery more equitable by authorizing waiver. See H.R.Rep. No. 728, 76th Cong., 1st Sess., 19 (1939); Hearings on Social Security before the House Committee on Ways and Means, 76th Cong., 1st Sess., 2287-2288 (1939); S.Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 256 (1965), U.S.Code Cong. & Admin.News 1965, p. 1943; S.Rep. No. 744, 90th Cong., 1st Sess., 257 (1967), U.S.Code Cong. & Admin.News 1967, p. 2834.
10
Section 225, 42 U.S.C. § 425, provides:
"If the Secretary, on the basis of information obtained by or submitted to him, believes that an individual entitled to [disability benefits] . . . may have ceased to be under a disability, the Secretary may suspend the payment of benefits . . . until it is determined . . . whether or not such individual's disability has ceased or until the Secretary believes that such disability has not ceased."
11
Section 303(a) provides:
"The Secretary of Labor shall make no certification for payment to any State unless he finds that the law of such State . . . includes provision for—
"(1) Such methods of administration . . . as are found by the Secretary of Labor to be reasonably calculated to insure full payment of unemployment compensation when due."
12
In pertinent part, § 205(g), 42 U.S.C. § 405(g), provides:
"Any individual, after any final decision of the Secretary made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow."
13
The Secretary, noting the sparseness of the legislative history of the Social Security Act on this issue, points only to language indicating that § 205(g) was intended to fill a gap in the original Act. Congress indicated that it amended the Act because it did not "specify what remedy, if any, is open to a claimant in the event his claim to benefits is denied by the [Social Security] Board." S.Rep. No. 734, 76th Cong., 1st Sess., 52 (1939). The reference in this passage to "a claimant" and "his claim," the Secretary believes, bolsters his argument that Congress intended only case-by-case adjudication under § 205(g).
14
See, e. g., Caswell v. Califano, 583 F.2d 9, 14 n. 12 (CA1 1978); Jones v. Califano, 576 F.2d 12, 21-22 (CA2 1978); Liberty Alliance of the Blind v. Califano, 568 F.2d 333, 344-346 (CA3 1977); Johnson v. Mathews, 539 F.2d 1111, 1125-1126 (CA8 1976); Jimenez v. Weinberger, 523 F.2d 689, 694-697 (CA7 1975), cert. denied, sub nom. Mathews v. Jimenez, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976).
15
Brief for Petitioner 54-55. There are five named representatives in the Elliott class. The District Court found that the notice sent to respondents by the Secretary did not advise them of the need to file a written request, but that even so all had personally been in touch with the local Social Security office within 30 days and objected to recoupment. The court also found that, after suit was initiated, John Vaquilar, Evelyn Elliott, Raymond Gaines, and Nancy Yamasaki filed written requests for reconsideration and waiver, and that these requests would not have changed their status had filing been timely. 371 F.Supp., at 965, and n. 8, 966, and n. 14. The Secretary says that files of the Social Security Administration also show that Jordan Silva filed a request for reconsideration and waiver, which was denied. Brief for Petitioner 12 n. 16. Because Isabelle Ortiz never filed such a request, the Secretary expresses some reservation as to whether she has met the requirements of § 205(g). Brief for Petitioner 55.
There are two named representatives of the Buffington class. Fannie Buffington filed a request for reconsideration, and Frances Biner filed a request for waiver. 564 F.2d, at 1224-1225.
16
Respondents also sought and obtained a ruling that the Secretary had not provided constitutionally adequate notice. The breadth of the classes is caused in part by the inclusion of all those who had not received adequate notice, a class far larger than the class of those who, after receiving notice, filed a request for reconsideration or waiver with the Secretary. The Secretary does not challenge in this Court the Court of Appeals' ruling as to notice, and none of the parties discuss whether a decision to send notice could be a "final decision" within the meaning of § 205(g). We therefore decline to consider whether the Court of Appeals had jurisdiction under § 205(g) to grant notice relief to the class members.
17
See S.Rep. No. 734, 76th Cong., 1st Sess., 52 (1939); H.R.Rep. No. 728, 76th Cong., 1st Sess., 43 (1939).
18
See Caswell v. Califano, 583 F.2d, at 14 n. 12; In re Letourneau, 559 F.2d 892, 894 (CA2 1977); Johnson v. Mathews, 539 F.2d, at 1125-1126; Jimenez v. Weinberger, 523 F.2d, at 694-697. See generally Weinberger v. Salfi, 422 U.S. 749, 763 n. 8, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), noting this issue.
| 12
|
442 U.S. 653
99 S.Ct. 2529
61 L.Ed.2d 153
Roy Tibbals WILSON et al., Petitioners,v.OMAHA INDIAN TRIBE et al. State of IOWA et al., Petitioners, v. OMAHA INDIAN TRIBE et al.
Nos. 78-160, 78-161.
Argued March 21, 1979.
Decided June 20, 1979.
Syllabus
Pursuant to an 1854 treaty, the reservation of the Omaha Indian Tribe (Tribe) was established in the Territory of Nebraska on the west bank of the Missouri River, with the eastern boundary being fixed as the center of the river's main channel. In 1867, a General Land Office survey established that certain land was included in the reservation but since then the river has changed course several times, leaving most of the survey area on the Iowa side of the river, separated from the rest of the reservation. Residents of Iowa ultimately settled on and improved this land, and these non-Indian owners and their successors in title occupied the land for many years prior to April 2, 1975, when they were dispossessed by the Tribe, with the assistance of the Bureau of Indian Affairs. Three federal actions, consolidated in District Court, were instituted by respondents, the Tribe and the United States as trustee of the reservation lands, against petitioners, including the State of Iowa and several individuals. Both sides sought to quiet title in their names, respondents arguing that the river's movement had been avulsive and thus did not affect the reservation's boundary, whereas petitioners argued that the disputed land had been formed by gradual accretion and belonged to the Iowa riparian owners. The District Court held that state rather than federal law should be the basis of decision; that 25 U.S.C. § 194—which provides that "[i]n all trials about the right of property in which an Indian may be a party on one side, and a white person on the other, the burden of proof shall rest upon the white person, whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership"—was not applicable because the Tribe could not make out a prima facie case that it possessed the disputed land in the past without proving its case on the merits; and that under Nebraska law, the changes in the river had been accretive and thus the petitioners were the owners of the disputed area. The Court of Appeals reversed, ruling that federal rather than state law was applicable; that the Tribe had made a sufficient showing to invoke § 194; and that applying the federal common law of accretion and avulsion to the evidence, the evidence was in equipoise and thus, under § 194, judgment must be entered for the Tribe.
Held:
1. The Court of Appeals was partially correct in ruling that § 194 is applicable here; by its terms, § 194 applies to the private petitioners but not to petitioner State of Iowa. In view of the history of § 194 and its purpose of protecting Indians from claims made by non-Indian squatters on their lands, it applies even when an Indian tribe is the litigant rather than one or more individual Indians. But, while Congress was aware that § 194 would be interpreted to cover artificial entities, such as corporations, as well as individuals, there is nothing to indicate that Congress intended the word "white person" to include any of the States of the Union. Here, there seems to be no question that the disputed land was once riparian land lying on the west bank of the Missouri River and was long occupied by the Tribe as part of the reservation set apart for it in consequence of the 1854 treaty, and this was enough to bring § 194 into play. In view of the purpose of the statute and its use of the term "presumption" which the "white man" must overcome, § 194 contemplates the non-Indian's shouldering the burden of persuasion as well as the burden of producing evidence once the tribe has made out its prima facie case of prior title or possession. Pp. 664-669.
2. The Court of Appeals properly concluded that federal law governs the substantive aspects of the dispute, but it erred in arriving at a federal standard, independent of state law, to determine whether there had been an avulsion or an accretion. Pp. 669-679.
(a) The general rule that, absent an overriding federal interest, the laws of the several States determine the ownership of the banks and shores of waterways, Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550, does not oust federal law in this litigation. Here, the United States has never yielded title or terminated its interest in the property, and, in these circumstances, the Indians' right to the property depends on federal law, "wholly apart from the application of state law principles which normally and separately protect a valid right of possession." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 677, 94 S.Ct. 772, 782, 39 L.Ed.2d 73. Pp. 669-671.
(b) However, state law should be borrowed as the federal rule of decision here. There is no imperative need to develop a general body of federal common law to decide cases such as this, where an interstate boundary is not in dispute (the location of the boundary between Iowa and Nebraska having been settled by Compact in 1943). Furthermore, given equitable application of state law, there is little likelihood of injury to federal trust responsibilities or to tribal possessory interests. And this is also an area in which the States have substantial interest in having their own law resolve controversies such as these; there is considerable merit in not having the reasonable expectations, under state real property law, of private landowners upset by the vagaries of being located adjacent to or across from Indian reservations or other property in which the United States has a substantial interest. Cf. Board of Comm'rs v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313; Arkansas v. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638. Pp. 671-676.
(c) Under the construction of the 1943 Compact in Nebraska v. Iowa, 406 U.S. 117, 92 S.Ct. 1379, 31 L.Ed.2d 733, Nebraska law should be applied in determining whether the changes in the river that moved the disputed land from Nebraska to Iowa were avulsive or accretive. Pp. 676-678.
575 F.2d 620, vacated and remanded.
1
Edson Smith, Omaha, Neb., for petitioners in No. 78-160.
2
George Bennett Cullison, Jr., Harlan, Iowa, for petitioners in No. 78-161.
3
William H. Veeder, Alexandria, Va., for respondent Omaha Indian Tribe.
4
Sara S. Beale, Detroit, Mich., for respondent United States.
5
[Amicus Curiae Information from pages 655-657 intentionally omitted]
6
Mr. Justice WHITE, delivered the opinion of the Court.
7
At issue here is the ownership of a tract of land on the east bank of the Missouri River in Iowa. Respondent Omaha Indian Tribe, supported by the United States as trustee of the Tribe's reservation lands,1 claims the tract as part of reservation lands created for it under an 1854 treaty. Petitioners, including the State of Iowa and several individuals, argue that past movements of the Missouri River washed away part of the reservation and the soil accreted to the Iowa side of the river, vesting title in them as riparian landowners.2
8
Two principal issues are presented. First, we are faced with novel questions regarding the interpretation and scope of Rev.Stat. § 2126, as set forth in 25 U.S.C. § 194, a 145-year-old, but seldom used, statute that provides:
9
"In all trials about the right of property in which an Indian may be a party on one side, and a white person on the other, the burden of proof shall rest upon the white person, whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership."
10
Second, we must decide whether federal or state law determines whether the critical changes in the course of the Missouri River in this case were accretive or avulsive.
11
* In 1854, the Omaha Indian Tribe ceded most of its aboriginal lands by treaty to the United States in exchange for money and assistance to enable the Tribe to cultivate its retained lands. Treaty of Mar. 16, 1854, 10 Stat. 1043; see United States v. Omaha Indians, 253 U.S. 275, 277-278, 40 S.Ct. 522, 523, 64 L.Ed. 901 (1920). The retained lands proved unsatisfactory to the Tribe, and it exercised its option under the treaty to exchange those lands for a tract of 300,000 acres to be designated by the President and acceptable to the Tribe. The Blackbird Hills area, on the west bank of the Missouri, all of which was then part of the Territory of Nebraska, was selected. The eastern boundary of the reservation was fixed as the center of the main channel of the Missouri River, the thalweg.3 That land, as modified by a subsequent treaty and statutes4 has remained the home of the Omaha Indian Tribe.
12
In 1867, a survey by T. H. Barrett of the General Land Office established that the reservation included a large peninsula jutting east toward the opposite, Iowa, side of the river, around which the river flowed in an oxbow curve known as Blackbird Bend.5 Over the next few decades, the river changed course several times, sometimes moving east, sometimes west.6 Since 1927, the river has been west of its 1867 position, leaving most of the Barrett survey area on the Iowa side of the river, separated from the rest of the reservation.
13
As the area, now on the Iowa side, dried out, Iowa residents settled on, improved, and farmed it. These non-Indian owners and their successors in title occupied the land for many years prior to April 2, 1975, when they were dispossessed by the Tribe, with the assistance of the Bureau of Indian Affairs.
14
Four lawsuits followed the seizure, three in federal court and one in state court. The Federal District Court for the Northern District of Iowa consolidated the three federal actions, severed claims to damages and lands outside the Barrett survey area, and issued a temporary injunction that permitted the Tribe to continue possession. The court then tried the case without a jury. At trial, the Government and the Tribe argued that the river's movement had been avulsive, and therefore the change in location of the river had not affected the boundary of the reservation. Petitioners argued that the river had gradually eroded the reservation lands on the west bank of the river, and that the disputed land on the east bank, in Iowa, had been formed by gradual accretion and belonged to the east-bank riparian owners.7 Both sides sought to quiet title in their names.
15
The District Court concluded that state rather than federal law should be the basis of decision. United States v. Wilson, 433 F.Supp. 57 (1977). The court interpreted the Rules of Decision Act, 28 U.S.C. § 1652, as not requiring the application of federal law in land disputes, even though the United States and an Indian tribe were claimants,8 unless the Constitution, a treaty, or an Act of Congress specifically supplanted state law. The court found no indication in those sources that federal law was to govern. It then went on to conclude that 25 U.S.C. § 194 was not applicable to the case because it was impossible for the Tribe to make out a prima facie case that it possessed the disputed lands in the past without proving its case on the merits. Thus, § 194 had no significance because it was "inextricably entwined with the merits." 433 F.Supp., at 66.9
16
Applying Nebraska law,10 which places the burden of proof on the party seeking to quiet title, the court concluded that the key changes in the river had been accretive, and that the east-bank riparians, the petitioners, were thus the owners of the disputed area. 433 F.Supp. 67 (1977).11
17
The Court of Appeals reversed. 575 F.2d 620 (CA8 1978). It began by ruling that the District Court should have applied federal rather than state law for two distinct reasons. First, the boundary of the reservation was coincidental with an interstate boundary at the time the river moved. Therefore, under Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 375, 97 S.Ct. 582, 589, 50 L.Ed.2d 550 (1977), and other cases of this Court, the governing law is federal because
18
"[t]he rendering of a decision in a private dispute which would 'press back' an interstate boundary sufficiently implicates the interests of the states to require the application of federal common law." 575 F.2d at 628.
19
Second, the Court of Appeals construed our decision in Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 677, 94 S.Ct. 772, 782, 39 L.Ed.2d 73 (1974), as requiring the application of federal law because the Tribe asserted a right to reservation land based directly on the 1854 treaty and therefore arising under and protected by federal law.
20
The Court of Appeals also ruled that the District Court had erred by refusing to apply 25 U.S.C. § 194. Because the Tribe had proved that the 1854 treaty included the land area within the Barrett survey, it had made a sufficient showing of "previous possession or ownership" to invoke the statute and place the burden of proof on petitioners. Adopting the District Court's construction "would negate the application of the § 194 statutory burden upon a pleading that simply recites Indian land had been destroyed by the erosive action of a river." 575 F.2d, at 631.
21
Reviewing what it perceived to be the federal common law of accretion and avulsion and with no more than passing reference to Nebraska law on the issue, the Court of Appeals concluded that the District Court had based its ruling on a too narrow definition of avulsion.12 The court then applied the law to the evidence and found that the evidence was in equipoise. Because § 194 placed the burden of proof on the non-Indians, however, the court ruled that judgment must be entered for the Tribe.
22
We granted separate petitions for certiorari filed by the State of Iowa and its Conservation Commission in No. 78-161 and by the individual petitioners in No. 78-160, but limited to the questions whether 25 U.S.C. § 194 is applicable in the circumstances of this litigation, in particular with respect to the State of Iowa, and whether federal or state law governs the substantive aspects of these cases. 439 U.S. 963, 99 S.Ct. 448, 58 L.Ed.2d 420 (1978).13 We are in partial, but serious, disagreement with the Court of Appeals, and vacate its judgment.
II
23
Petitioners challenge on several grounds the Court of Appeals' construction and application of § 194 to these cases.14 First, they argue that by its plain language the section does not apply when an Indian tribe, rather than one or more individual Indians, is the litigant. We think the argument is untenable. The provision first appeared in slightly different form in 1822, Act of May 6, 1822, 3 Stat. 683, as part of an Act amending the 1802 Indian Trade and Intercourse Act, Act of Mar. 30, 1802, 2 Stat. 139, which was one of a series of Acts originating in 1790 and designed to regulate trade and other forms of intercourse between the North American Indian tribes and non-Indians.15 Because of recurring trespass upon and illegal occupancy of Indian territory, a major purpose of these Acts as they developed was to protect the rights of Indians to their properties. Among other things, non-Indians were prohibited from settling on tribal properties, and the use of force was authorized to remove persons who violated these restrictions. The 1822 provision was part of this design; and with only slight change in wording, it was incorporated in the 1834 consolidation of the various statutes dealing with Indian affairs. Act of June 30, 1834, 4 Stat. 729. Section 22 of that Act is now 25 U.S.C. § 194, already set out in this opinion. Although the word "Indian" in the second line of § 22 of the 1834 Act replaced the word "Indians" in the 1822 provision, there is no indication that any change in meaning was intended; and none should be implied at this late date, particularly in light of 1 U.S.C. § 1, which provides that unless the context indicates otherwise, "words importing the singular include and apply to several persons, parties, or things."
24
Even construed as including the plural, however, it is urged that the word "Indians" does not literally include an Indian tribe, and that it is plain from other provisions of the Act that Congress intended to distinguish between Indian tribes and individual Indians. But as we see it, this proves too much. At the time of the enactment of the predecessors of § 194, Indian land ownership was primarily tribal ownership; aboriginal title, a possessory right, was recognized and was extinguishable only by agreement with the tribes with the consent of the United States. Oneida Indian Nation v. County of Oneida, 414 U.S., at 669-670, 94 S.Ct., at 778. Typically, this was accomplished by treaty between the United States and the tribe, and typically the land reserved or otherwise set aside was held in trust by the United States for the tribe itself. " 'Whatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members.' " United States v. Jim, 409 U.S. 80, 82, 93 S.Ct. 261, 263, 34 L.Ed.2d 282 (1972), quoting Cherokee Nation v. Hitchcock, 187 U.S. 294, 307, 23 S.Ct. 115, 119, 47 L.Ed. 183 (1902). It is clear enough that, when enacted, Congress intended the 1822 and 1834 provisions to protect Indians from claims made by non-Indian squatters on their lands. To limit the force of these provisions to lands held by individual Indians would be to drain them of all significance, given the historical fact that at the time of the enactment virtually all Indian land was tribally held. Legislation dealing with Indian affairs "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 [it]." Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206, 98 S.Ct. 1011, 1019, 55 L.Ed.2d 209 (1978). Furthermore, " 'statutes passed for the benefit of dependent Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in favor of the Indians.' " Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976), quoting Alaska Pacific Fisheries v. United States, 248 U.S 78, 89, 39 S.Ct. 40, 41, 63 L.Ed. 138 (1918).
25
The second argument, presented in its most acute form by the State of Iowa, is that § 194 applies only where the Indians' antagonist is an individual white person and has no force at all where the adverse claimant is an artificial entity.16 We cannot accept this broad submission. The word "person" for purposes of statutory construction, unless the context indicates to the contrary, is normally construed to include "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." 1 U.S.C. § 1. And in terms of the protective purposes of the Acts of which § 194 and its predecessors were a part, it would make little sense to construe the provision so that individuals, otherwise subject to its burdens, could escape its reach merely by incorporating and carrying on business as usual. As we said in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 687, 98 S.Ct. 2018, 2034, 56 L.Ed.2d 611 (1978), "by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis."17 It stands to reason that in re-enacting this provision in the Revised Statutes, now codified in the United States Code, Congress was fully aware that it would be interpreted to cover artificial entities as well as individuals.
26
It nevertheless does not follow that the "white persons" to whom will be shifted the burden of proof in title litigation with Indians also include the sovereign States of the Union. "[I]n common usage, the term 'person' does not include the sovereign, [and] statutes employing the phrase are ordinarily construed to exclude it." United States v. Cooper Corp., 312 U.S. 600, 604, 61 S.Ct. 742, 743, 85 L.Ed. 1071 (1941); accord, United States v. Mine Workers, 330 U.S. 258, 275, 67 S.Ct. 677, 687, 91 L.Ed. 884 (1947). Particularly is this true where the statute imposes a burden or limitation, as distinguished from conferring a benefit or advantage. United States v. Knight, 39 U.S. 301, 315, 14 Pet. 301, 315, 10 L.Ed. 465 (1840). There is nevertheless "no hard and fast rule of exclusion," United States v. Cooper Corp., supra, 312 U.S., at 604-605, 61 S.Ct., at 743; and much depends on the context, the subject matter, legislative history, and executive interpretation. The legislative history here in uninformative, and executive interpretation is unhelpful with respect to this dormant statute. But in terms of the purpose of the provision that of preventing and providing remedies against non-Indian squatters on Indian lands—it is doubtful that Congress anticipated such threats from the States themselves or intended to handicap the States so as to offset the likelihood of unfair advantage. Indeed, the 1834 Act, which included § 22, the provision identical to the present § 194, was "intended to apply to the whole Indian country, as defined in the first section." H.R.Rep. No. 474, 23d Cong., 1st Sess., 10 (1834). Section 1 defined Indian country as being "all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the United States east of the Mississippi River, and not within any state to which the Indian title has not been extinguished . . . ." 4 Stat. 729. Although this definition was discarded in the Revised Statutes, see Rev.Stat. § 5596, it is apparent that in adopting § 22 Congress had in mind only disputes arising in Indian country, disputes that would not arise in or involve any of the States.
27
Nor have we discovered anything since its passage or in connection with the definition of Indian country now contained in the Criminal Code, 18 U.S.C. § 1151, indicating that Congress intended the words "white person" in § 194 to include any of the original or any of the newly admitted States of the Union. We hesitate, therefore, to hold that the State of Iowa must necessarily be disadvantaged by § 194 when litigating title to the property to which it claims ownership, particularly where its opposition is an organized Indian tribe litigating with the help of the United States of America. It may well be that a State, like other litigants and like the State of Iowa did in this case, will often bear the burden of proof on various issues in litigating the title to real estate. But § 194 operates regardless of the circumstances once the Tribe or its champion, the United States, has demonstrated that the Tribe was once in possession of or had title to the area under dispute.
28
Petitioners also defend the refusal of the District Court to apply § 194 on the grounds that a precondition to applying it is proof of prior possession or title in the Indians and that this involves the merits of the issue on which this case turns—whether the changes in the river were avulsive or accretive. We think the Court of Appeals had the better view of the statute in this regard. Section 194 is triggered once the Tribe makes out a prima facie case of prior possession or title to the particular area under dispute. The usual way of describing real property is by identifying an area on the surface of the earth through the use of natural or artificial monuments. There seems to be no question here that the area within the Barrett survey was once riparian land lying on the west bank of the Missouri River and was long occupied by the Tribe as part of the reservation set apart for it in consequence of the treaty of 1854. This was enough, it seems to us, to bring § 194 into play. Of course, that would not foreclose the State of Iowa from offering sufficient evidence to prove its own title or from prevailing on any affirmative defenses it may have.
29
Petitioners also assert that even if § 194 is operative and even if the Tribe has made out its prima facie case, only the burden of going forward with the evidence, and not the burden of persuasion, is shifted to the State. Therefore they, the petitioners, should prevail if the evidence is in equipoise. The term "burden of proof" may well be an ambiguous term connoting either the burden of going forward with the evidence, the burden of persuasion, or both. But in view of the evident purpose of the statute and its use of the term "presumption" which the "white man" must overcome, we are in agreement with the two courts below that § 194 contemplates the non-Indian's shouldering the burden of persuasion as well as the burden of producing evidence once the tribe has made out its prima facie case of prior title or possession.
III
A.
30
In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977), this Court held that, absent an overriding federal interest, the laws of the several States determine the ownership of the banks and shores of waterways. This was expressive of the general rule with respect to the incidents of federal land grants:
31
" 'We hold the true principle to be this, that whenever the question in any Court, state or federal, is, whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.' " Id., at 377, 97 S.Ct., at 590, quoting Wilcox v. Jackson, 38 U.S. 498, 517, 13 Pet. 498, 517, 10 L.Ed. 264 (1839) (emphasis added by the Corvallis Court).
32
The Court's conclusion in the particular dispute before it in Corvallis was that state law governed the rights of the riparian owner because there was no claim of an applicable federal right other than the equal-footing origin of the State's title.
33
As the Court of Appeals held, however, the general rule recognized by Corvallis does not oust federal law in this case. Here, we are not dealing with land titles merely derived from a federal grant, but with land with respect to which the United States has never yielded title or terminated its interest. The area within the survey was part of land to which the Omahas had held aboriginal title and which was reserved by the Tribe and designated by the United States as a reservation and the Tribe's permanent home. The United States continues to hold the reservation lands in trust for the Tribe and to recognize the Tribe pursuant to the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S.C. § 461 et seq.
34
In these circumstances, where the Government has never parted with title and its interest in the property continues, the Indians' right to the property depends on federal law, "wholly apart from the application of state law principles which normally and separately protect a valid right of possession." Oneida Indian Nation v. County of Oneida, 414 U.S., at 677, 94 S.Ct., at 782. It is rudimentary that "Indian title is a matter of federal law and can be extinguished only with federal consent" and that the termination of the protection that federal law, treaties, and statutes extend to Indian occupancy is "exclusively the province of federal law." Id., at 670, 94 S.Ct., at 779. Insofar as the applicable law is concerned, therefore, the claims of the Omahas are "clearly distinguishable from the claims of land grantees for whom the Federal Government has taken no such responsibility." Id., at 684, 94 S.Ct., at 786 (REHNQUIST, J., concurring). This is not a case where the United States has patented or otherwise granted lands to private owners in a manner that terminates its interest and subjects the grantees' incidents of ownership to determination by the applicable state law. The issue here is whether the Tribe is no longer entitled to possession of an area that in the past was concededly part of the reservation as originally established. That question, under Oneida, is a matter for the federal law to decide.18
B
35
Although we have determined that federal law ultimately controls the issue in this case, it is still true that "[c]ontroversies . . . governed by federal law, do not inevitably require resort to uniform federal rules. . . . Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy 'dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.' " United States v. Kimbell Foods, Inc., 440 U.S. 715, 727-728, 99 S.Ct. 1448, 1458, 59 L.Ed.2d 711 (1979), quoting United States v. Standard Oil Co., 332 U.S. 301, 310, 67 S.Ct. 1604, 1609, 91 L.Ed. 2067 (1947).19 The Court of Appeals, noting the existence of a body of federal law necessarily developed by this Court in the course of adjudicating boundary disputes between States having their common border on a navigable stream, purported to find in those doctrines the legal standards to apply in deciding whether the changes in the course of the Missouri River involved in this case had been avulsive or accretive in nature.
36
The federal law applied in boundary cases, however, does not necessarily furnish the appropriate rules to govern this case. No dispute between Iowa and Nebraska as to their common border on or near the Missouri River is involved here. The location of that border on the ground was settled by Compact in 1943 and by further litigation in this Court, Nebraska v. Iowa, 406 U.S. 117, 92 S.Ct. 1379, 31 L.Ed.2d 733 (1972). The federal interest in this respect has thus been satisfied, except to the extent that the Compact itself may bear upon a dispute such as this. United States v. Kimbell Foods, Inc., supra, advises that at this juncture we should consider whether there is need for a nationally uniform body of law to apply in situations comparable to this, whether application of state law would frustrate federal policy or functions, and the impact a federal rule might have on existing relationships under state law. An application of these factors suggests to us that state law should be borrowed as the federal rule of decision here.
37
First, we perceive no need for a uniform national rule to determine whether changes in the course of a river affecting riparian land owned or possessed by the United States or by an Indian tribe have been avulsive or accretive. For this purpose, we see little reason why federal interests should not be treated under the same rules of property that apply to private persons holding property in the same area by virtue of state, rather than federal, law. It is true that States may differ among themselves with respect to the rules that will identify and distinguish between avulsions and accretions, but as long as the applicable standard is applied, evenhandedly to particular disputes, we discern no imperative need to develop a general body of federal common law to decide cases such as this, where an interstate boundary is not in dispute. We should not accept "generalized pleas for uniformity as substitutes for concrete evidence that adopting state law would adversely affect [federal interests]." United States v. Kimbell Foods, Inc., supra, 440 U.S., at 730, 99 S.Ct., at 1459.
38
Furthermore, given equitable application of state law, there is little likelihood of injury to federal trust responsibilities or to tribal possessory interests. On some occasions, Indian tribes may lose some land because of the application of a particular state rule of accretion and avulsion, but it is as likely on other occasions that the tribe will stand to gain. The same would be the case under a federal rule, including the rule that the Court of Appeals announced in this case. The United States fears a hostile and unfavorable treatment at the hands of state law, but, as we have said, the legal issues are federal and the federal courts will have jurisdiction to hear them. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). Adequate means are thus available to insure fair treatment of tribal and federal interests.
39
This is also an area in which the States have substantial interest in having their own law resolve controversies such as these. Private landowners rely on state real property law when purchasing real property, whether riparian land or not. There is considerable merit in not having the reasonable expectations of these private landowners upset by the vagaries of being located adjacent to or across from Indian reservations or other property in which the United States has a substantial interest. Borrowing state law will also avoid arriving at one answer to the avulsive-accretion riddle in disputes involving Indians on one side and possibly quite different answers with respect to neighboring land where non-Indians are the disputants. Indeed, in this case several hundred acres of land within the Barrett survey are held in fee, and concededly are not Indian property. These tracts would not be governed by the federal rule announced by the Court of Appeals.
40
We have borrowed state law in Indian cases before. In Board of Comm'rs v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313 (1939), the question was what law, federal or state, would apply in a claim to recover taxes improperly levied by a political subdivision of a State upon Indians' trust lands. The Court observed that "[s]ince the origin of the right to be enforced is the Treaty, plainly whatever rule we fashion is ultimately attributable to the Constitution, treaties or statutes of the United States, and does not owe its authority to the law-making agencies of Kansas." Id., at 349-350, 60 S.Ct., at 287-288. The Court, nevertheless, elected to adopt state law as the federal rule of decision. There was no reason in the circumstances of the case for the beneficiaries of federal rights to have a privileged position over other aggrieved taxpayers, and "[t]o respect the law of interest prevailing in Kansas in no wise impinges upon the exemption which the Treaty of 1861 has commanded Kansas to respect and the federal courts to vindicate."20
41
The importance of attending to state law, once an interstate boundary has been determined, is underlined by Arkansas v. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638 (1918). In that case, because the disputed boundary between Arkansas and Tennessee had been determined, the question of title to riparian land and to the river bottom was a matter to be determined by local law:
42
"How the land that emerges on either side of an interstate boundary stream shall be disposed of as between public and private ownership is a matter to be determined according to the law of each State, under the familiar doctrine that it is for the States to establish for themselves such rules of property as they deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent to them. . . . But these dispositions are in each case limited by the interstate boundary, and cannot be permitted to press back the boundary line from where otherwise it should be located." Id., at 175-176, 38 S.Ct., at 305.
43
Likewise, in the present case, the Compact of 1943 settled the location of the interstate boundary, within and without the river; and the question of land ownership within or adjacent to the river is best settled by reference to local law even where Indian trust land, a creature of the federal law, is involved.
C
44
The passage quoted above from Arkansas v. Tennessee was quoted with approval in Nebraska v. Iowa, 406 U.S., at 126-127, 92 S.Ct., at 1385, where the central question was the interpretation of the Interstate Compact determining the location of the entire border between Nebraska and Iowa.21 Our opinion in Nebraska v. Iowa is also instructive with respect to which state law, Iowa or Nebraska, the federal court should refer to in determining the federal standard applicable to this case.
45
Under § 2 of the Compact, each State ceded to the other and relinquished jurisdiction over all lands within the Compact boundary of the other State. Under § 3, "Titles, mortgages, and other liens" affecting such lands that are "good in" the ceding State "shall be good in" the other State.22 Thus, ceded lands east of the Compact line came under Iowa jurisdiction; but Iowa was obligated to respect title to any ceded land east of the new boundary if that title was "good in" Nebraska. Accepting the Special Master's recommendations in this respect, the Court ruled that one claiming a Nebraska title to land east of the Compact line need show only "good title" under Nebraska law and need not also prove either the location of the original boundary between the two States or that the land at issue was on the Nebraska side of that original boundary. The Court further ruled, in agreement with the Special Master, that in litigating with private claimants seeking to prove good Nebraska title to land east of the Compact line, the State of Iowa was disentitled to rely on certain doctrines of Iowa common law bearing on riparian land ownership.23
46
In this case, the District Court ruled that even though the United States and an Indian tribe rather than private parties were plaintiffs, title to the Barrett survey land, which was once in Nebraska but is now unquestionably in Iowa, should be governed by Nebraska law in accordance with the terms of the Compact. Proceeding to adjudicate the case in accordance with Nebraska law, the District Judge found that the Tribe and the Government, respondents here, had failed to prove that the Blackbird Bend area had been separated from the rest of the reservation by avulsive changes in the Missouri River and that the defendants, petitioners here, without the aid of any presumption of accretion available under Iowa law if applicable, had instead proved that the river changes had been accretion. In the course of arriving at this conclusion, the District Court, relying on Nebraska cases, rejected the Government's definition of avulsion, later embraced by the Court of Appeals, as contrary to the common law of Nebraska. The defendants, petitioners here, having carried the burden of proving their good title to the land at issue, were entitled to a decree quieting title in them.
47
Although we have already held that the District Court erred in concluding that determination of titles to reservations lands is not a matter for the federal law, we have also indicated that the federal law should incorporate the applicable state property law to resolve the dispute. Therefore, it seems to us that the District court reached the correct result in ruling that under the construction of the Compact in Nebraska v. Iowa, Nebraska law should be applied in determining whether the changes in the river that moved the Blackbird Bend area from Nebraska to Iowa had been avulsive or accretive. It should also be noted that the District Court, although wrong in wholly rejecting the applicability of § 194, concluded as a matter of fact and law that the defendants, petitioners here, had carried the burden of persuasion normally incumbent upon a plaintiff in a quiet-title action, and had proved by a preponderance of the evidence that the reservation lands had eroded and had accreted to the Iowa shoreline. Apparently for this reason, the trial judge observed at the end of his memorandum opinion that were he wrong in refusing to apply § 194, his findings and conclusions "would not be altered by any different allocation of the burden of persuasion." 433 F. Supp., at 67.
IV
48
In sum, the Court of Appeals was partially correct in ruling that § 194 was applicable in this case. By its terms, § 194 applies to the private petitions but not to petitioner State of Iowa. We also agree with the Court of Appeals' conclusion that federal law governed the substantive aspects of the dispute, but find it in error for arriving at a federal standard, independent of state law, to determine whether there had been an avulsion or an accretion. Instead, the court should have incorporated the law of the State that otherwise would have been applicable which, as we have said, is the law of Nebraska. Of course, because of its view of the controlling law, the Court of Appeals did not consider whether the District Court had correctly interpreted Nebraska law and had properly applied it to the facts of this case. These tasks are still to be performed, and we vacate the Court of Appeals' judgment and remand the case for further proceedings consistent with this opinion.
49
It is so ordered.
50
Mr. Justice POWELL took no part in the consideration or decision of these cases.
51
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring.
52
I join the Court's opinion, but I write briefly to add a comment about my views as to the scope of 25 U.S.C. § 194.
53
Section 194 applies to a property dispute between an Indian and a "white person." The property dispute here is between Indians, on the one hand, and, on the other, nine individuals, two corporations, and the State of Iowa. See 575 F.2d 620, 622 (CA8 1978). The Court holds that "white person" includes an artificial entity and thus that § 194 applies in the dispute between the Omahas and the two corporate petitioners. Ante, at 666-667. Contrariwise, the Court holds that "white person" does not include a sovereign State, and thus that § 194 does not apply in the dispute between the Omahas and petitioner State of Iowa. Ante, at 667-668, 678. The court, however, does not expressly discuss § 194's applicability to the nine individual claimants.
54
Since the Court nevertheless holds that "§ 194 applies to the private petitioners" without exception, ante, at 678, it must be proceeding on one of two assumptions. The Court could assume, first, that all nine individual petitioners are Caucasians, and hence each literally is a "white person" under § 194. There is no evidence in the record, however, as to the race of these individuals. See Brief for Petitioners in No. 78-160, p. 30; Brief for United States 32 n. 25; Tr. of Oral Arg. 13. Since the burden of proving the factual predicate for § 194's applicability presumably rests on the Indians who seek to invoke it, the Court, in holding § 194 applicable to the individual petitioners here, could not properly rely on this first possible assumption.
55
The Court could assume, second, that "white person" in § 194 refers, not to a Caucasian, but to a "non-Indian" individual. On this assumption, the race of the individual petitioners (so long as they are not Indians) would be irrelevant in determining § 194's applicability. That this is in fact the assumption the Court makes is suggested by its decision to ignore the adjective "white" in holding each of the corporate petitioners to be a "white person," and by its refusal to follow United States v. Perryman, 100 U.S. 235 (1880), where it was held that "white person," as used in another section of the Non-Intercourse Act, did not include a Negro. Ante, at 666 n. 16.
56
The Court seems to hold implicitly, therefore, that "white person" in § 194 includes any "non-Indian" individual. I would prefer to make this holding explicit. In my view, any other construction of § 194 would raise serious constitutional questions. To construe § 194 as applicable to disputes between Indians and Caucasians, but not to disputes between Indians and black or oriental individuals, would create an irrational racial classification highly questionable under the Fifth Amendment's equal protection guarantee. To avoid this result, § 194's reference to a "white person" must be read to mean any "non-Indian" individual or entity, and I so interpret the Court's holding today. To the extent that Perryman is inconsistent with this reading, I must regard that case as overruled sub silentio.
1
In Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820 (1912), the Court explained the source and nature of this trust relationship. In the exercise of its plenary authority over Indian affairs, Congress has the power to place restrictions on the alienation of Indian lands. Where it does so, it continues guardianship over Indian lands and "[d]uring the continuance of this guardianship, the right and duty of the Nation to enforce by all appropriate means the restrictions designed for the security of the Indians cannot be gainsaid. . . . A transfer of the [Indian land] is not simply a violation of the proprietary rights of the Indian. It violates the governmental rights of the United States." Id., at 437-438, 32 S.Ct. at 431-432. Accordingly, the United States is entitled to go into court as trustee to enforce Indian land rights. "It [is] not essential that it should have a pecuniary interest in the controversy." Id., at 439, 32 S.Ct., at 432. See also Morrison v. Work, 266 U.S. 481, 485, 45 S.Ct. 149, 151, 69 L.Ed. 394 (1925); Choate v. Trapp, 224 U.S. 665, 678, 32 S.Ct. 565, 570, 56 L.Ed. 941 (1912); F. Cohen, Handbook of Federal Indian Law 94-96 (1942).
2
The State of Iowa claims title to certain lands deeded to it by quitclaim and to the bed of the Missouri between the thalweg (see n. 3, infra ) and the ordinary high-water mark, any islands formed in that portion of the river, and any abandoned channels. The latter claims are based upon the equal-footing doctrine, see Pollard's Lessee v. Hagan, 44 U.S. 212, 3 How. 212, 11 L.Ed. 565 (1845), and the 1943 Boundary Compact between Iowa and Nebraska, see n. 6, infra.
3
The term is commonplace in boundary disputes between riparian States. See, e. g., Minnesota v. Wisconsin, 252 U.S. 273, 282, 40 S.Ct. 313, 319, 64 L.Ed. 558 (1920):
"The doctrine of Thalweg, a modification of the more ancient principle which required equal division of territory, was adopted in order to preserve to each State equality of right in the beneficial use of the stream as a means of communication. Accordingly, the middle of the principal channel of navigation is commonly accepted as the boundary. Equality in the beneficial use often would be defeated, rather than promoted, by fixing the boundary on a given line merely because it connects points of greatest depth. Deepest water and the principal navigable channel are not necessarily the same. The rule has direct reference to actual or probable use in the ordinary course, and common experience shows that vessels do not follow a narrow crooked channel close to shore, however deep when they can proceed on a safer and more direct one with sufficient water."
4
Treaty of Mar. 6, 1865, 14 Stat. 667; Act of June 22, 1874, 18 Stat. 146, 170; Act of Aug. 7, 1882, 22 Stat. 341; see also Act of Mar. 3, 1885, 23 Stat. 362, 370, as amended by Act of Jan. 7, 1925, ch. 34, 43 Stat. 726.
5
There is some dispute over whether the Barrett survey actually marked the reservation boundary because several years had passed since the Tribe began occupying the reservation and the Missouri may have changed its course during that period. See United States v. Wilson, 433 F.Supp. 67, 69, 74 (ND Iowa 1977). This does not appear to be of significance in this litigation. Id., at 75.
6
In Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892), the Court decided a boundary dispute between the States of Nebraska and Iowa caused by the wanderings of the Missouri. "[T]he fickle Missouri River," however, "refused to be bound by the . . . decree," Eriksson, The Boundaries of Iowa, 25 Iowa J. of Hist. and Pol. 163, 234 (1927); and in 1943 Nebraska and Iowa entered into a Compact fixing the boundary between the States independent of the river's location. Congress ratified the Compact in the Act of July 12, 1943, ch. 220, 57 Stat. 494. Since the time of the Compact, the Army Corps of Engineers has been largely successful in taming the river. See Nebraska v. Iowa, 406 U.S. 117, 119, 92 S.Ct. 1379, 1381, 31 L.Ed.2d 733 (1972).
7
The District Court stated the common-law rule, 433 F.Supp. 57, 62 (1977):
"Simply stated, when a river which forms a boundary between two parcels of land moves by processes of erosion and accretion, the boundary follows the movements of the river. Independent Stock Farm v. Stevens, 128 Neb. 619, 259 N.W. 647 (1935). On the other hand, when a river which forms a boundary between two parcels of land abruptly moves from its old channel to a new channel through an event known as avulsion, the boundary remains defined by the old river channel. Iowa Railroad Land Co. v. Coulthard, 96 Neb. 607, 148 N.W. 328 (1914). The jurisdiction of Nebraska applies these principles to the movements of the Missouri River. DeLong v. Olsen, 63 Neb. 327, 88 N.W. 512 (1901)."
This Court has followed the same principles resolving boundary disputes between States bordering on navigable streams. Arkansas v. Tennessee, 246 U.S. 158, 173, 38 S.Ct. 301, 304, 62 L.Ed. 638 (1918); Missouri v. Nebraska, 196 U.S. 23, 34-36, 25 S.Ct. 155, 157, 49 L.Ed. 372 (1904); Nebraska v. Iowa, 143 U.S., at 360-361, 370, 12 S.Ct., at 396, 397, 400.
8
The District Court relied on Mason v. United States, 260 U.S. 545, 43 S.Ct. 200, 67 L.Ed. 396 (1923); Francis v. Francis, 203 U.S. 233, 27 S.Ct. 129, 51 L.Ed. 165 (1906); and Fontenelle v. Omaha Tribe of Nebraska, 298 F.Supp. 855 (Neb.1969), aff'd 430 F.2d 143 (CA8 1970).
9
The District Court also suggested that the possessory interest of the Tribe was not of sufficient quality to trigger the burden shifting contemplated by 25 U.S.C. § 194.
10
The District Court construed the Court's decision in Nebraska v. Iowa, 406 U.S. 117, 92 S.Ct. 1379, 31 L.Ed.2d 733 (1972), as requiring the application of Nebraska law with respect to changes in the river that occurred before 1943, the date of the Iowa-Nebraska Compact that permanently fixed the boundary between the States, because the land at issue here was indisputably part of Nebraska before the river changed its course. 433 F.Supp., at 60, and n. 2.
11
Although the District Court hewed closely to Nebraska case law, it also observed that insofar as the relevant definitions of avulsion and accretion were concerned, there was no significant difference between Iowa and Nebraska law, except that under Iowa law accretion was presumed, which was not the case under Nebraska law. Because Nebraska law would not aid the defendants by a presumption of accretion, the Tribe was favored by the application of Nebraska law. The District Court was also of the view that the federal accretion-avulsion law was not substantially different. As we shall see, the Court of Appeals differed with the District Court in this respect.
12
The Court of Appeals relied on two cases, Veatch v. White, 23 F.2d 69 (CA9 1927), and Uhlhorn v. United States Gypsum Co., 366 F.2d 211 (CA8 1966), cert. denied, 385 U.S. 1026, 87 S.Ct. 753, 17 L.Ed.2d 674 (1967), in concluding that, under federal law, "the sudden, perceptible change of the channel, whether within or without the river's original bed, is a critical factor in defining an avulsion." 575 F.2d 620, 637 (CA8 1978). This definition was broader than the Nebraska rule as understood and applied by the District Court, which the Court of Appeals described as follows: "an avulsion occurs only where a sudden shift in a channel cuts off land 'so that after the shift it remains identifiable as land which existed before the change of the channel and which never became a part of the river bed.' " Id., at 634, quoting 433 F.Supp., at 73. As is evident, the definition employed by the Court of Appeals permits a finding of avulsion even where the river is still largely within its original bed.
13
In No. 78-161, filed by the State of Iowa and its Conservation Commission, the questions on which certiorari was granted were stated as follows:
"Whether the State of Iowa is 'a white person', and the Omaha Indian Tribe is 'an Indian' within the meaning of 25 U.S.C. § 194.
* * * * *
"Whether federal law requires divestiture of Iowa's apparent good title to real property located within its boundaries."
In No. 78-160, we granted certiorari on the following questions:
"Whether the Eighth Circuit erroneously construed Title 25 U.S.Code § 194 to make it applicable in this case.
"Whether the Eighth Circuit erred in holding that Federal and not state common law with regard to accretion and avulsion is applicable in this case."
14
Of these various arguments, only the single ground relied on by the District Court in refusing to apply § 194 was discussed and rejected by the Court of Appeals. The other grounds for holding § 194 inapplicable to this case were presented by petitioners either in their briefs on the merits before the Court of Appeals or their petition for rehearing before that court after it reversed the District Court.
15
The background, history, and development of these laws and Acts are explored exhaustively in F. Prucha, American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts 1790-1834 (1962). See also Cohen, supra n. 1, at 68-75.
16
Petitioners cite United States v. Perryman, 100 U.S. 235, 25 L.Ed. 645 (1880), as support for their position that § 194 must be construed literally to apply only to a "white person," or individual Caucasian. But that case dealt with another provision of the 1834 Nonintercourse Act, § 16, and there were distinct grounds in the legislative history indicating that the term "white person" as used in § 16 did not include a Negro. Whether Perryman would be followed today is a question we need not decide.
17
There were two corporate defendants among the parties in the District Court. They filed a separate petition for certiorari, No. 78-162, RGP, Inc. v. Omaha Indian Tribe, but no action has yet been taken on it. Under our Rules, however, the two corporations are party-respondents in the cases in which we have granted certiorari. Rule 21(4).
18
Petitioners claim that Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922), mandates the applicability of state rather than federal law in this case. But there the United States issued patents granting former reservation lands. The Court merely held that, absent contrary evidence, when the United States conveyed and completely parted with its territory, even though Indian land, it intended the incidents of the resulting ownership to be determined by state law. This is no more than the general rule that Oneida recognized. In the present case, of course, the area at issue was never conveyed away by the United States or by the Tribe and is claimed by the United States and the Tribe to remain as part of the reservation established as the result of the treaty of 1854. Neither do we find that United States v. Oklahoma Gas & Electric Co., 318 U.S. 206, 63 S.Ct. 534, 87 L.Ed. 716 (1943), presents a contrary holding. There, the Court refused to construe a federal statute permitting the Secretary of the Interior to grant permission for the opening of highways over Indian land "in accordance with the laws of the state" as prohibiting the establishment of a power line in the highway right-of-way without further federal consent. Id., at 208, 63 S.Ct., at 535. As we understand that case, the Court held only that the consent authorized by the federal statute included the uses which such consent would authorize under state law.
19
Compare P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler's, The Federal Courts and the Federal System 768 (2d ed. 1973):
"The federal 'command' to incorporate state law may be a judicial rather than a legislative command; that is, it may be determined as a matter of choice of law, even in the absence of statutory command or implication, that, although federal law should 'govern' a given question, state law furnishes an appropriate and convenient measure of the content of this federal law."
20
See Board of Comm'rs v. United States, 308 U.S., at 351-352, 60 S.Ct., at 288-289:
"Having left the matter at large for judicial determination within the framework of familiar remedies equitable in their nature, see Stone v. White, 301 U.S. 532, 534, 57 S.Ct. 851, 852, 81 L.Ed. 1265, Congress has left us free to take into account appropriate considerations of 'public convenience.' Cf. Virginian Ry. Co. v. Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789. Nothing seems to us more appropriate than due regard for local institutions and local interests. We are concerned with the interplay between the rights of Indians under federal guardianship and the local repercussion of those rights. Congress has not been heedless of the interests of the states in which Indian lands were situated, as reflected by their local laws. See, e. g., § 5 of the General Allotment Act of 1887, 24 Stat. 388, 389. With reference to other federal rights, the state law has been absorbed, as it were, as the governing federal rule not because state law was the source of the right but because recognition of state interests was not deemed inconsistent with federal policy. See Brown v. United States, 263 U.S. 78, 44 S.Ct. 92, 68 L.Ed. 171; Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664. In the absence of explicit legislative policy cutting across state interests, we draw upon a general principle that the beneficiaries of federal rights are not to have a privileged position over other aggrieved tax-payers in their relation with the states or their political subdivisions. To respect the law of interest prevailing in Kansas in no wise impinges upon the exemption which the Treaty of 1861 has commanded Kansas to respect and the federal courts to vindicate."
21
The Special Master in that case observed that, although it would be difficult, the location of the agreed-upon boundary in the Compact could be determined with reasonable accuracy. Report of Special Master in Nebraska v. Iowa, O.T.1964, No. 17 Orig., p. 50.
22
See 1943 Iowa Acts, ch. 306,, as ratified by Act of July 12, 1943, ch. 220, 56 Stat. 494:
"Sec. 2. The State of Iowa hereby cedes to the State of Nebraska and relinquishes jurisdiction over all lands now in Iowa but lying westerly of said boundary line and contiguous to lands in Nebraska.
"Sec. 3. Titles, mortgages, and other liens good in Nebraska shall be good in Iowa as to any lands Nebraska may cede to Iowa and any pending suits or actions concerning said lands may be prosecuted to final judgment in Nebraska and such judgments shall be accorded full force and effect in Iowa."
23
Under this ruling, Iowa was disentitled, either as plaintiff or defendant, from invoking its presumption that changes in the Missouri had been accretive rather than avulsive, and could not rely on its rule that no person can claim adversely against the sovereign State of Iowa. Thus, a title based on adverse possession good under Nebraska law would be good in Iowa. Report of Special Master, supra, at 174-175.
| 12
|
442 U.S. 584
99 S.Ct. 2493
61 L.Ed.2d 101
James PARHAM, Individually and as Commissioner of the Department of Human Resources, et al., Appellants,v.J. R. et al.
No. 75-1690.
Argued Dec. 6, 1977.
Reargued Oct. 10, 1978.
Decided June 20, 1979.
Syllabus
Appellees, children being treated in a Georgia state mental hospital, instituted in Federal District Court a class action against Georgia mental health officials. Appellees sought a declaratory judgment that Georgia's procedures for voluntary commitment of children under the age of 18 to state mental hospitals violated the Due Process Clause of the Fourteenth Amendment, and requested an injunction against their future enforcement. Under the Georgia statute providing for the voluntary admission of children to state regional hospitals, admission begins with an application for hospitalization signed by a parent or guardian and, upon application, the superintendent of the hospital is authorized to admit temporarily any child for "observation and diagnosis." If after observation the superintendent finds "evidence of mental illness" and that the child is "suitable for treatment" in the hospital, the child may be admitted "for such period and under such conditions as may be authorized by law." Under Georgia's mental health statute, any child who has been hospitalized for more than five days may be discharged at the request of a parent or guardian, and the hospital superintendent, even without a request for discharge, has an affirmative duty to release any child "who has recovered from his mental illness or who has sufficiently improved that the superintendent determines that hospitalization of the patient is no longer desirable." The District Court held that Georgia's statutory scheme was unconstitutional because it failed to protect adequately the appellees' due process rights and that the process due included at least the right after notice to an adversary-type hearing before an impartial tribunal.
Held : The District Court erred in holding unconstitutional the State's procedures for admitting a child for treatment to a state mental hospital, since on the record in this case, Georgia's medical factfinding processes are consistent with constitutional guarantees. Pp. 598-621.
(a) Testing challenged state procedures under a due process claim requires a balancing of (i) the private interest that will be affected by the official action; (ii) 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 (iii) the state's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Cf. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18; Smith v. Organization of Foster Families, 431 U.S. 816, 848-849, 97 S.Ct. 2094, 2112-2113, 53 L.Ed.2d 14. Pp. 599-600.
(b) Notwithstanding a child's liberty interest in not being confined unnecessarily for medical treatment, and assuming that a person has a protectible interest in not being erroneously labeled as mentally ill, parents—who have traditional interests in and responsibility for the upbringing of their child—retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse. However, the child's rights and the nature of the commitment decision are such that parents do not always have absolute discretion to institutionalize a child; they retain plenary authority to seek such care for their children, subject to an independent medical judgment. Cf. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15; Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788, distinguished. Pp. 2503-2505.
(c) The State has significant interests in confining the use of costly mental health facilities to cases of genuine need, in not imposing unnecessary procedural obstacles that may discourage the mentally ill or their families from seeking needed psychiatric assistance, and in allocating priority to the diagnosis and treatment of patients as soon as they are admitted to a hospital rather than to time-consuming preadmission procedures. Pp. 604-606.
(d) The risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a "neutral factfinder" to determine whether the statutory requirements for admission are satisfied, see Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287; Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, and to probe the child's background. The decisionmaker must have the authority to refuse to admit any child who does not satisfy the medical standards for admission. The need for continuing commitment must be reviewed periodically. Pp. 606-607.
(e) Due process does not require that the neutral factfinder be law trained or a judicial or administrative officer; nor is it necessary that the admitting physician conduct a formal or quasi-formal adversary hearing or that the hearing be conducted by someone other than the admitting physician. While the medical decisionmaking process may not be error free, nevertheless the independent medical decisionmaking process, which includes a thorough psychiatric investigation followed by additional periodic review of a child's condition will identify children who should not be admitted; risks of error will not be significantly reduced by a more formal, judicial-type hearing. Pp. 607-613.
(f) Georgia's practices, as described in the record, comport with minimum due process requirements. The state statute envisions a careful diagnostic medical inquiry to be conducted by the admitting physician at each regional hospital. Georgia's procedures are not "arbitrary" in the sense that a single physician or other professional has the "unbridled discretion" to commit a child to a regional hospital. While Georgia's general administrative and statutory scheme for the voluntary commitment of children is not unconstitutional, the District Court, on remand, may consider any individual claims that the initial admissions of particular children did not meet due process standards, and may also consider whether the various hospitals' procedures for periodic review of their patients' need for institutional care are sufficient to justify continuing a voluntary commitment. Pp. 613-617.
(g) The differences between the situation where the child is a ward of the State of Georgia and the State requests his admission to a state mental hospital, and the situation where the child's natural parents request his admission, do not justify requiring different procedures at the time of the child's initial admission to the hospital. Pp. 617-620.
412 F.Supp. 112, reversed and remanded.
R. Douglas Lackey, Atlanta, Ga., for appellants.
John L. Cromartie, Jr., Atlanta, Ga., for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question presented in this appeal is what process is constitutionally due a minor child whose parents or guardian seek state administered institutional mental health care for the child and specifically whether an adversary proceeding is required prior to or after the commitment.
2
* (a) Appellee1 J. R., a child being treated in a Georgia state mental hospital, was a plaintiff in this class action2 based on 42 U.S.C. § 1983, in the District Court for the Middle District of Georgia. Appellants are the State's Commissioner of the Department of Human Resources, the Director of the Mental Health Division of the Department of Human Resources, and the Chief Medical Officer at the hospital where appellee was being treated. Appellee sought a declaratory judgment that Georgia's voluntary commitment procedures for children under the age of 18, Ga.Code §§ 88-503.1, 88-503.2 (1975),3 violated the Due Process Clause of the Fourteenth Amendment and requested an injunction against their future enforcement.
3
A three-judge District Court was convened pursuant to 28 U.S.C. §§ 2281 (1970 ed.) and 2284. After considering expert and lay testimony and extensive exhibits and after visiting two of the State's regional mental health hospitals, the District Court held that Georgia's statutory scheme was unconstitutional because it failed to protect adequately the appellees' due process rights. J. L. v. Parham, 412 F.Supp. 112, 139 (1976).
4
To remedy this violation, the court enjoined future commitments based on the procedures in the Georgia statute. It also commanded Georgia to appropriate and expend whatever amount was "reasonably necessary" to provide nonhospital facilities deemed by the appellant state officials to be the most appropriate for the treatment of those members of plaintiffs' class, n. 2, supra, who could be treated in a less drastic, nonhospital environment. 412 F.Supp., at 139.
5
Appellants challenged all aspects of the District Court's judgment. We noted probable jurisdiction, 431 U.S. 936, 97 S.Ct. 2647, 53 L.Ed.2d 253, and heard argument during the 1977 Term. The case was then consolidated with Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640, 99 S.Ct. 2523, 61 L.Ed.2d 142, and reargued this Term.
6
(b) J. L., a plaintiff before the District Court who is now deceased, was admitted in 1970 at the age of 6 years to Central State Regional Hospital in Milledgeville, Ga. Prior to his admission, J. L. had received out-patient treatment at the hospital for over two months. J. L.'s mother then requested the hospital to admit him indefinitely.
7
The admitting physician interviewed J. L. and his parents. He learned that J. L.'s natural parents had divorced and his mother had remarried. He also learned that J. L. had been expelled from school because he was uncontrollable. He accepted the parents' representation that the boy had been extremely aggressive and diagnosed the child as having a "hyperkinetic reaction of childhood."
8
J. L.'s mother and stepfather agreed to participate in family therapy during the time their son was hospitalized. Under this program, J. L. was permitted to go home for short stays. Apparently his behavior during these visits was erratic. After several months, the parents requested discontinuance of the program.
9
In 1972, the child was returned to his mother and stepfather on a furlough basis, i. e., he would live at home but go to school at the hospital. The parents found they were unable to control J. L. to their satisfaction, and this created family stress. Within two months, they requested his readmission to Central State. J. L.'s parents relinquished their parental rights to the county in 1974.
10
Although several hospital employees recommended that J. L. should be placed in a special foster home with "a warm, supported, truly involved couple," the Department of Family and Children Services was unable to place him in such a setting. On October 24, 1975, J. L. (with J. R.) filed this suit requesting an order of the court placing him in a less drastic environment suitable to his needs.
11
(c) Appellee J. R. was declared a neglected child by the county and removed from his natural parents when he was three months old. He was placed in seven different foster homes in succession prior to his admission to Central State Hospital at the age of 7.
12
Immediately preceding his hospitalization, J. R. received outpatient treatment at a county mental health center for several months. He then began attending school where he was so disruptive and incorrigible that he could not conform to normal behavior patterns. Because of his abnormal behavior, J. R.'s seventh set of foster parents requested his removal from their home. The Department of Family and Children Services then sought his admission at Central State. The agency provided the hospital with a complete sociomedical history at the time of his admission. In addition, three separate interviews were conducted with J. R. by the admission team of the hospital.
13
It was determined that he was borderline retarded, and suffered an "unsocialized, aggressive reaction of childhood." It was recommended unanimously that he would "benefit from the structured environment" of the hospital and would "enjoy living and playing with boys of the same age."
14
J. R.'s progress was re-examined periodically. In addition, unsuccessful efforts were made by the Department of Family and Children Services during his stay at the hospital to place J. R. in various foster homes. On October 24, 1975, J. R. (with J. L.) filed this suit requesting an order of the court placing him in a less drastic environment suitable to his needs.
15
(d) Georgia Code § 88-503.1 (1975) provides for the voluntary admission to a state regional hospital of children such as J. L. and J. R. Under that provision, admission begins with an application for hospitalization signed by a "parent or guardian." Upon application, the superintendent of each hospital is given the power to admit temporarily any child for "observation and diagnosis." If, after observation, the superintendent finds "evidence of mental illness" and that the child is "suitable for treatment" in the hospital, then the child may be admitted "for such period and under such conditions as may be authorized by law."
16
Georgia's mental health statute also provides for the discharge of voluntary patients. Any child who has been hospitalized for more than five days may be discharged at the request of a parent or guardian. § 88-503.3(a) (1975). Even without a request for discharge, however, the superintendent of each regional hospital has an affirmative duty to release any child "who has recovered from his mental illness or who has sufficiently improved that the superintendent determines that hospitalization of the patient is no longer desirable." § 88-503.2 (1975).
17
Georgia's Mental Health Director has not published any statewide regulations defining what specific procedures each superintendent must employ when admitting a child under 18. Instead, each regional hospital's superintendent is responsible for the procedures in his or her facility. There is substantial variation among the institutions with regard to their admission procedures and their procedures for review of patients after they have been admitted. A brief description of the different hospitals' procedures4 will demonstrate the variety of approaches taken by the regional hospitals throughout the State.
18
Southwestern Hospital in Thomasville, Ga., was built in 1966. Its children and adolescent program was instituted in 1974. The children and adolescent unit in the hospital has a maximum capacity of 20 beds, but at the time of suit only 10 children were being treated there.
19
The Southwestern superintendent testified that the hospital has never admitted a voluntary child patient who was not treated previously by a community mental health clinic. If a mental health professional at the community clinic determines that hospital treatment may be helpful for a child, then clinic staff and hospital staff jointly evaluate the need for hospitalization, the proper treatment during hospitalization, and a likely release date. The initial admission decision thus is not made at the hospital.
20
After a child is admitted, the hospital has weekly reviews of his condition performed by its internal medical and professional staff. There also are monthly reviews of each child by a group composed of hospital staff not involved in the weekly reviews and by community clinic staff people. The average stay for each child who was being treated at Southwestern in 1975 was 100 days.
21
Atlanta Regional Hospital was opened in 1968. At the time of the hearing before the District Court, 17 children and 21 adolescents were being treated in the hospital's children and adolescent unit.
22
The hospital is affiliated with nine community mental health centers and has an agreement with them that "persons will be treated in the comprehensive community mental health centers in every possible instance, rather than being hospitalized." The admission criteria at Atlanta Regional for voluntary and involuntary patients are the same. It has a formal policy not to admit a voluntary patient unless the patient is found to be a threat to himself or others. The record discloses that approximately 25% of all referrals from the community centers are rejected by the hospital admissions staff.
23
After admission, the staff reviews the condition of each child every week. In addition, there are monthly utilization reviews by nonstaff mental health professionals; this review considers a random sample of children's cases. The average length of each child's stay in 1975 was 161 days.
24
The Georgia Mental Health Institute (GMHI) in Decatur, Ga., was built in 1965. Its children and adolescent unit housed 26 children at the time this suit was brought.
25
The hospital has a formal affiliation with four community mental health centers. Those centers may refer patients to the hospital only if they certify that "no appropriate alternative resources are available within the client's geographic area." For the year prior to the trial in this case, no child was admitted except through a referral from a clinic. Although the hospital has a policy of generally accepting for 24 hours all referrals from a community clinic, it has a team of staff members who review each admission. If the team finds "no reason not to treat in the community" and the deputy superintendent of the hospital agrees, then it will release the applicant to his home.
26
After a child is admitted, there must be a review of the admission decision within 30 days. There is also an unspecified periodic review of each child's need for hospitalization by a team of staff members. The average stay for the children who were at GMHI in 1975 was 346 days.
27
Augusta Regional Hospital was opened in 1969 and is affiliated with 10 community mental health clinics. Its children and adolescent unit housed 14 children in December 1975.
28
Approximately 90% of the children admitted to the hospital have first received treatment in the community, but not all of them were admitted based on a specific referral from a clinic. The admission criterion is whether "the child needs hospitalization," and that decision must be approved by two psychiatrists. There is also an informal practice of not admitting a child if his parents refuse to participate in a family therapy program.
29
The admission decision is reviewed within 10 days by a team of staff physicians and mental health professionals; thereafter each child is reviewed every week. In addition, every child's condition is reviewed by a team of clinic staff members every 100 days. The average stay for the children at Augusta in December 1975 was 92 days.
30
Savannah Regional Hospital was built in 1970, and it housed 16 children at the time of this suit. The hospital staff members are also directors of the community mental health clinics.
31
It is the policy of the hospital that any child seeking admission on a nonemergency basis must be referred by a community clinic. The admission decision must be made by a staff psychiatrist, and it is based on the materials provided by the community clinic, an interview with the applicant, and an interview with the parents, if any, of the child.
32
Within three weeks after admission of a child, there is review by a group composed of hospital and clinic staff members and people from the community, such as juvenile court judges. Thereafter, the hospital staff reviews each child weekly. If the staff concludes that a child is ready to be released, then the community committee reviews the child's case to assist in placement. The average stay of the children being treated at Savannah in December 1975 was 127 days.
33
West Central Hospital in Columbus, Ga., was opened in December 1974, and it was organized for budgetary purposes with several community mental health clinics. The hospital itself has only 20 beds for children and adolescents, 16 of which were occupied at the time this suit was filed.
34
There is a formal policy that all children seeking admission to the hospital must be referred by a community clinic. The hospital is regarded by the staff as "the last resort in treating a child"; 50% of the children referred are turned away by the admissions team at the hospital.
35
After admission, there are staff meetings daily to discuss problem cases. The hospital has a practicing child psychiatrist who reviews cases once a week. Depending on the nature of the problems, the consultant reviews between 1 and 20 cases. The average stay of the children who were at West Central in December 1975 was 71 days.
36
The children's unit at Central State Regional Hospital in Milledgeville, Ga., was added to the existing structure during the 1970's. It can accommodate 40 children. The hospital also can house 40 adolescents. At the time of suit, the hospital housed 37 children under 18, including both named plaintiffs.
37
Although Central State is affiliated with community clinics, it seems to have a higher percentage of nonreferral admissions than any of the other hospitals. The admission decision is made by an "admissions evaluator" and the "admitting physician." The evaluator is a Ph.D. in psychology, a social worker, or a mental-health-trained nurse. The admitting physician is a psychiatrist. The standard for admission is "whether or not hospitalization is the more appropriate treatment" for the child. From April 1974 to November 1975, 9 of 29 children applicants screened for admission were referred to noninstitutional settings.
38
All children who are temporarily admitted are sent to the children and adolescent unit for testing and development of a treatment plan. Generally, seven days after the admission, members of the hospital staff review all of the information compiled about a patient "to determine the need for continued hospitalization." Thereafter, there is an informal review of the patient approximately every 60 days. The patients who were at Central State in December 1975 had been there, on the average, 456 days. There is no explanation in the record for this large variation from the average length of hospitalization at the other institutions.
39
Although most of the focus of the District Court was on the State's mental hospitals, it is relevant to note that Georgia presently funds over 50 community mental health clinics and 13 specialized foster care homes. The State has built seven new regional hospitals within the past 15 years, and it has added a new children's unit to its oldest hospital. The state budget in fiscal year 1976 was almost $150 million for mental health care. Georgia ranks 22d among the states in per capita expenditures for mental health and 15th in total expenditures.5
40
The District Court nonetheless rejected the State's entire system of providing mental health care on both procedural and substantive grounds. The District Court found that 46 children could be "optimally cared for in another, less restrictive, non-hospital setting if it were available." 412 F.Supp., at 124-125. These "optimal" settings included group homes, therapeutic camps, and home-care services. The Governor of Georgia and the chairmen of the two Appropriations Committees of its legislature, testifying in the District Court, expressed confidence in the Georgia program and informed the court that the State could not justify enlarging its budget during fiscal year 1977 to provide the specialized treatment settings urged by appellees in addition to those then available.
41
Having described the factual background of Georgia's mental health program and its treatment of the named plaintiffs, we turn now to examine the legal bases for the District Court's judgment.
II
42
In holding unconstitutional Georgia's statutory procedure for voluntary commitment of juveniles, the District Court first determined that commitment to any of the eight regional hospitals6 constitutes a severe deprivation of a child's liberty. The court defined this liberty interest in terms of both freedom from bodily restraint and freedom from the "emotional and psychic harm" caused by the institutionalization.7 Having determined that a liberty interest is implicated by a child's admission to a mental hospital, the court considered what process is required to protect that interest. It held that the process due "includes at least the right after notice to be heard before an impartial tribunal." 412 F.Supp., at 137.
43
In requiring the prescribed hearing, the court rejected Georgia's argument that no adversary-type hearing was required since the State was merely assisting parents who could not afford private care by making available treatment similar to that offered in private hospitals and by private physicians. The court acknowledged that most parents who seek to have their children admitted to a state mental hospital do so in good faith. It, however, relied on one of appellees' witnesses who expressed an opinion that "some still look upon mental hospitals as a 'dumping ground.' " Id., at 138.8 No specific evidence of such "dumping," however, can be found in the record.
44
The District Court also rejected the argument that review by the superintendents of the hospitals and their staffs was sufficient to protect the child's liberty interest. The court held that the inexactness of psychiatry, coupled with the possibility that the sources of information used to make the commitment decision may not always be reliable, made the superintendent's decision too arbitrary to satisfy due process. The court then shifted its focus drastically from what was clearly a procedural due process analysis to what appears to be a substantive due process analysis and condemned Georgia's "officialdom" for its failure, in the face of a state-funded 1973 report9 outlining the "need" for additional resources to be spent on nonhospital treatment, to provide more resources for noninstitutional mental health care. The court concluded that there was a causal relationship between this intransigence and the State's ability to provide any "flexible due process" to the appellees. The District Court therefore ordered the State to appropriate and expend such resources as would be necessary to provide nonhospital treatment to those members of appellees' class who would benefit from it.
III
45
In an earlier day, the problems inherent in coping with children afflicted with mental or emotional abnormalities were dealt with largely within the family. See S. Brakel & R. Rock, The Mentally Disabled and the Law 4 (1971). Sometimes parents were aided by teachers or a family doctor. While some parents no doubt were able to deal with their disturbed children without specialized assistance, others especially those of limited means and education, were not. Increasingly, they turned for assistance to local, public sources or private charities. Until recently, most of the states did little more than provide custodial institutions for the confinement of persons who were considered dangerous. Id., at 5-6; Slovenko, Criminal Justice Procedures in Civil Commitment, 24 Wayne L.Rev. 1, 3 (1977) (hereinafter Slovenko).
46
As medical knowledge about the mentally ill and public concern for their condition expanded, the states, aided substantially by federal grants,10 have sought to ameliorate the human tragedies of seriously disturbed children. Ironically, as most states have expanded their efforts to assist the mentally ill, their actions have been subjected to increasing litigation and heightened constitutional scrutiny. Courts have been required to resolve the thorny constitutional attacks on state programs and procedures with limited precedential guidance. In this case, appellees have challenged Georgia's procedural and substantive balance of the individual, family, and social interests at stake in the voluntary commitment of a child to one of its regional mental hospitals.
47
The parties agree that our prior holdings have set out a general approach for testing challenged state procedures under a due process claim. Assuming the existence of a protectible property or liberty interest, the Court has required a balancing of a number of factors:
48
"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), quoted inSmith v. Organization of Foster Families, 431 U.S. 816, 848-849, 97 S.Ct. 2094, 2111-2112, 53 L.Ed.2d 14 (1977).
49
In applying these criteria, we must consider first the child's interest in not being committed. Normally, however, since this interest is inextricably linked with the parents' interest in and obligation for the welfare and health of the child, the private interest at stake is a combination of the child's and parents' concerns.11 Next, we must examine the State's interest in the procedures it has adopted for commitment and treatment of children. Finally, we must consider how well Georgia's procedures protect against arbitrariness in the decision to commit a child to a state mental hospital.
50
(a) It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment and that the state's involvement in the commitment decision constitutes state action under the Fourteenth Amendment. See Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979); In re Gault, 387 U.S. 1, 27, 87 S.Ct. 1428, 1443, 18 L.Ed.2d 527 (1967); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). We also recognize that commitment sometimes produces adverse social consequences for the child because of the reaction of some to the discovery that the child has received psychiatric care. Cf. Addington v. Texas, supra, 441 U.S., at 425-426, 99 S.Ct., at 1809.
51
This reaction, however, need not be equated with the community response resulting from being labeled by the state as delinquent, criminal, or mentally ill and possibly dangerous. See ibid.; In re Gault, supra, 387 U.S., at 23, 87 S.Ct., at 1441; Paul v. Davis, 424 U.S. 693, 711-712, 96 S.Ct. 1155, 1165-1166, 47 L.Ed.2d 405 (1976). The state through its voluntary commitment procedures does not "label" the child; it provides a diagnosis and treatment that medical specialists conclude the child requires. In terms of public reaction, the child who exhibits abnormal behavior may be seriously injured by an erroneous decision not to commit. Appellees overlook a significant source of the public reaction to the mentally ill, for what is truly "stigmatizing" is the symptomatology of a mental or emotional illness. Addington v. Texas, supra, 441 U.S., at 429, 99 S.Ct., at 1811. See also Schwartz, Myers, & Astrachan, Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 Archives of General Psychiatry 329 (1974).12 The pattern of untreated, abnormal behavior—even if nondangerous—arouses at least as much negative reaction as treatment that becomes public knowledge. A person needing, but not receiving, appropriate medical care may well face even greater social ostracism resulting from the observable symptoms of an untreated disorder.13
52
However, we need not decide what effect these factors might have in a different case. For purposes of this decision, we assume that a child has a protectible interest not only in being free of unnecessary bodily restraints but also in not being labeled erroneously by some persons because of an improper decision by the state hospital superintendent.
53
(b) We next deal with the interests of the parents who have decided, on the basis of their observations and independent professional recommendations, that their child needs institutional care. Appellees argue that the constitutional rights of the child are of such magnitude and the likelihood of parental abuse is so great that the parents' traditional interests in and responsibility for the upbringing of their child must be subordinated at least to the extent of providing a formal adversary hearing prior to a voluntary commitment.
54
Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is "the mere creature of the State" and, on the contrary, asserted that parents generally "have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations." Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). See also Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Meyer v. Nebraska, 262 U.S. 390, 400, 43 S.Ct. 625, 627, 67 L.Ed. 1042 (1923). Surely, this includes a "high duty" to recognize symptoms of illness and to seek and follow medical advice. The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries * 447; 2 J. Kent, Commentaries on American Law * 190.
55
As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents "may at times be acting against the interests of their children" as was stated in Bartley v. Kremens, 402 F.Supp. 1039, 1047-1048 (ED Pa. 1975), vacated and remanded, 431 U.S. 119, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977), creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests. See Rolfe & MacClintock 348-349. The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.
56
Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. See Wisconsin v. Yoder, supra, 406 U.S., at 230, 92 S.Ct., at 1540; Prince v. Massachusetts, supra, 321 U.S., at 166, 64 S.Ct., at 442. Moreover, the Court recently declared unconstitutional a state statute that granted parents an absolute veto over a minor child's decision to have an abortion. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). Appellees urge that these precedents limiting the traditional rights of parents, if viewed in the context of the liberty interest of the child and the likelihood of parental abuse, require us to hold that the parents' decision to have a child admitted to a mental hospital must be subjected to an exacting constitutional scrutiny, including a formal, adversary, pre-admission hearing.
57
Appellees' argument, however, sweeps too broadly. Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. Here, there is no finding by the District Court of even a single instance of bad faith by any parent of any member of appellees' class. We cannot assume that the result in Meyer v. Nebraska, supra, and Pierce v. Society of Sisters, supra, would have been different if the children there had announced a preference to learn only English or a preference to go to a public, rather than a church, school. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents' authority to decide what is best for the child. See generally Goldstein, Medical Case for the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L.J. 645, 664-668 (1977); Bennett, Allocation of Child Medical Care Decisionmaking Authority: A Suggested Interest Analysis, 62 Va.L.Rev. 285, 308 (1976). Neither state officials nor federal courts are equipped to review such parental decisions.
58
Appellees place particular reliance on Planned Parenthood, arguing that its holding indicates how little deference to parents is appropriate when the child is exercising a constitutional right. The basic situation in that case, however, was very different; Planned Parenthood involved an absolute parental veto over the child's ability to obtain an abortion. Parents in Georgia in no sense have an absolute right to commit their children to state mental hospitals; the statute requires the superintendent of each regional hospital to exercise independent judgment as to the child's need for confinement. See supra, at 591.
59
In defining the respective rights and prerogatives of the child and parent in the voluntary commitment setting, we conclude that our precedents permit the parents to retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse, and that the traditional presumption that the parents act in the best interests of their child should apply. We also conclude, however, that the child's rights and the nature of the commitment decision are such that parents cannot always have absolute and unreviewable discretion to decide whether to have a child institutionalized. They, of course, retain plenary authority to seek such care for their children, subject to a physician's independent examination and medical judgment.
60
(c) The State obviously has a significant interest in confining the use of its costly mental health facilities to cases of genuine need. The Georgia program seeks first to determine whether the patient seeking admission has an illness that calls for inpatient treatment. To accomplish this purpose, the State has charged the superintendents of each regional hospital with the responsibility for determining, before authorizing an admission, whether a prospective patient is mentally ill and whether the patient will likely benefit from hospital care. In addition, the State has imposed a continuing duty on hospital superintendents to release any patient who has recovered to the point where hospitalization is no longer needed.
61
The State in performing its voluntarily assumed mission also has a significant interest in not imposing unnecessary procedural obstacles that may discourage the mentally ill or their families from seeking needed psychiatric assistance. The parens patriae interest in helping parents care for the mental health of their children cannot be fulfilled if the parents are unwilling to take advantage of the opportunities because the admission process is too onerous, too embarrassing, or too contentious. It is surely not idle to speculate as to how many parents who believe they are acting in good faith would forgo state-provided hospital care if such care is contingent on participation in an adversary proceeding designed to probe their motives and other private family matters in seeking the voluntary admission.
62
The State also has a genuine interest in allocating priority to the diagnosis and treatment of patients as soon as they are admitted to a hospital rather than to time-consuming procedural minuets before the admission.14 One factor that must be considered is the utilization of the time of psychiatrists, psychologists, and other behavioral specialists in preparing for and participating in hearings rather than performing the task for which their special training has fitted them. Behavioral experts in courtrooms and hearings are of little help to patients.
63
The amici brief of the American Psychiatric Association et al. points out at page 20 that the average staff psychiatrist in a hospital presently is able to devote only 47% of his time to direct patient care. One consequence of increasing the procedures the state must provide prior to a child's voluntary admission will be that mental health professionals will be diverted even more from the treatment of patients in order to travel to and participate in—and wait for—what could be hundreds—or even thousands—of hearings each year. Obviously the cost of these procedures would come from the public moneys the legislature intended for mental health care. See Slovenko 34-35.
64
(d) We now turn to consideration of what process protects adequately the child's constitutional rights by reducing risks of error without unduly trenching on traditional parental authority and without undercutting "efforts to further the legitimate interests of both the state and the patient that are served by" voluntary commitments. Addington v. Texas, 441 U.S., at 430, 99 S.Ct., at 1811. See also Mathews v. Eldridge, 424 U.S., at 335, 96 S.Ct., at 903. We conclude that the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a "neutral factfinder" to determine whether the statutory requirements for admission are satisfied. See Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970); Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). That inquiry must carefully probe the child's background using all available sources, including, but not limited to, parents, schools, and other social agencies. Of course, the review must also include an interview with the child. It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, it is necessary that the child's continuing need for commitment be reviewed periodically by a similarly independent procedure.15
65
We are satisfied that such procedures will protect the child from an erroneous admission decision in a way that neither unduly burdens the states nor inhibits parental decisions to seek state help.
66
Due process has never been thought to require that the neutral and detached trier of fact be law trained or a judicial or administrative officer. SeeGoldberg v. Kelly, supra, 397 U.S., at 271, 90 S.Ct., at 1022; Morrissey v. Brewer, supra, 408 U.S., at 489, 92 S.Ct., at 2604. Surely, this is the case as to medical decisions, for "neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments." In re Roger S., 19 Cal.3d 921, 942, 141 Cal.Rptr. 298, 311, 569 P.2d 1286, 1299 (1977) (Clark, J., dissenting). Thus, a staff physician will suffice, so long as he or she is free to evaluate independently the child's mental and emotional condition and need for treatment.
67
It is not necessary that the deciding physician conduct a formal or quasi-formal, hearing. A state is free to require such a hearing, but due process is not violated by use of informal traditional medical investigative techniques. Since well-established medical procedures already exist, we do not undertake to outline with specificity precisely what this investigation must involve. The mode and procedure of medical diagnostic procedures is not the business of judges. What is best for a child is an individual medical decision that must be left to the judgment of physicians in each case. We do no more than emphasize that the decision should represent an independent judgment of what the child requires and that all sources of information that are traditionally relied on by physicians and behavioral specialists should be consulted.
68
What process is constitutionally due cannot be divorced from the nature of the ultimate decision that is being made. Not every determination by state officers can be made most effectively by use of "the procedural tools of judicial or administrative decisionmaking." Board of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 90, 98 S.Ct. 948, 955, 55 L.Ed.2d 124 (1978). See also Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 13-14, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668; Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).16
69
Here, the questions are essentially medical in character: whether the child is mentally or emotionally ill and whether he can benefit from the treatment that is provided by the state. While facts are plainly necessary for a proper resolution of those questions, they are only a first step in the process. In an opinion for a unanimous Court, we recently stated in Addington v. Texas, 441 U.S., at 429, 99 S.Ct., at 1811, that the determination of "whether [a person] is mentally ill turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists."
70
Although we acknowledge the fallibility of medical and psychiatric diagnosis, see O'Connor v. Donaldson, 422 U.S. 563, 584, 95 S.Ct. 2486, 2498, 45 L.Ed.2d 396 (1975) (concurring opinion), we do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative hearing officer after a judicial-type hearing. Even after a hearing, the nonspecialist decisionmaker must make a medical-psychiatric decision. Common human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real. See Albers, Pasewark, & Meyer, Involuntary Hospitalization and Psychiatric Testimony: The Fallibility of the Doctrine of Immaculate Perception, 6 Cap.U.L.Rev. 11, 15 (1976).17
71
Another problem with requiring a formalized, factfinding hearing lies in the danger it poses for significant intrusion into the parent-child relationship. Pitting the parents and child as adversaries often will be at odds with the presumption that parents act in the best interests of their child. It is one thing to require a neutral physician to make a careful review of the parents' decision in order to make sure it is proper from a medical standpoint; it is a wholly different matter to employ an adversary contest to ascertain whether the parents' motivation is consistent with the child's interests.
72
Moreover, it is appropriate to inquire into how such a hearing would contribute to the successful long-range treatment of the patient. Surely, there is a risk that it would exacerbate whatever tensions already exist between the child and the parents. Since the parents can and usually do play a significant role in the treatment while the child is hospitalized and even more so after release, there is a serious risk that an adversary confrontation will adversely affect the ability of the parents to assist the child while in the hospital. Moreover, it will make his subsequent return home more difficult. These unfortunate results are especially critical with an emotionally disturbed child; they seem likely to occur in the context of an adversary hearing in which the parents testify. A confrontation over such intimate family relationships would distress the normal adult parents and the impact on a disturbed child almost certainly would be significantly greater.18
73
It has been suggested that a hearing conducted by someone other than the admitting physician is necessary in order to detect instances where parents are "guilty of railroading their children into asylums" or are using "voluntary commitment procedures in order to sanction behavior of which they disapprov[e]." Ellis, Volunteering Children: Parental Commitment of Minors to Mental Institutions, 62 Calif.L.Rev. 840, 850-851 (1974). See also J. L. v. Parham, 412 F.Supp., at 133; Brief for Appellees 38. Curiously, it seems to be taken for granted that parents who seek to "dump" their children on the state will inevitably be able to conceal their motives and thus deceive the admitting psychiatrists and the other mental health professionals who make and review the admission decision. It is elementary that one early diagnostic inquiry into the cause of an emotional disturbance of a child is an examination into the environment of the child. It is unlikely, if not inconceivable, that a decision to abandon an emotionally normal, healthy child and thrust him into an institution will be a discrete act leaving no trail of circumstances. Evidence of such conflicts will emerge either in the interviews or from secondary sources. It is unrealistic to believe that trained psychiatrists, skilled in eliciting responses, sorting medically relevant facts, and sensing motivational nuances will often be deceived about the family situation surrounding a child's emotional disturbance.19 Surely a lay, or even law-trained, factfinder would be no more skilled in this process than the professional.
74
By expressing some confidence in the medical decisionmaking process, we are by no means suggesting it is error free. On occasion, parents may initially mislead an admitting physician or a physician may erroneously diagnose the child as needing institutional care either because of negligence or an overabundance of caution. That there may be risks of error in the process affords no rational predicate for holding unconstitutional an entire statutory and administrative scheme that is generally followed in more than 30 states.20 "[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions." Mathews v. Eldridge, 424 U.S., at 344, 96 S.Ct., at 907. In general, we are satisfied that an independent medical decisionmaking process, which includes the thorough psychiatric investigation described earlier, followed by additional periodic review of a child's condition, will protect children who should not be admitted; we do not believe the risks of error in that process would be significantly reduced by a more formal, judicial-type hearing. The issue remains whether the Georgia practices, as described in the record before us, comport with these minimum due process requirements.
75
(e) Georgia's statute envisions a careful diagnostic medical inquiry to be conducted by the admitting physician at each regional hospital. The amicus brief for the United States explains, at pages 7-8:
76
"[I]n every instance the decision whether or not to accept the child for treatment is made by a physician employed by the State . . ..
77
"That decision is based on interviews and recommendations by hospital or community health center staff. The staff interviews the child and the parent or guardian who brings the child to the facility . . . [and] attempts are made to communicate with other possible sources of information about the child . . .."
78
Focusing primarily on what it saw as the absence of any formal mechanism for review of the physician's initial decision, the District Court unaccountably saw the medical decision as an exercise of "unbridled discretion." 412 F.Supp., at 136. But extravagant characterizations are no substitute for careful analysis, and we must examine the Georgia process in its setting to determine if, indeed, any one person exercises such discretion.
79
In the typical case, the parents of a child initially conclude from the child's behavior that there is some emotional problem—in short, that "something is wrong." They may respond to the problem in various ways, but generally the first contact with the State occurs when they bring the child to be examined by a psychologist or psychiatrist at a community mental health clinic.
80
Most often, the examination is followed by outpatient treatment at the community clinic. In addition, the child's parents are encouraged, and sometimes required, to participate in a family therapy program to obtain a better insight into the problem. In most instances, this is all the care a child requires. However, if, after a period of outpatient care, the child's abnormal emotional condition persists, he may be referred by the local clinic staff to an affiliated regional mental hospital.
81
At the regional hospital an admissions team composed of a psychiatrist and at least one other mental health professional examines and interviews the child—privately in most instances. This team then examines the medical records provided by the clinic staff and interviews the parents. Based on this information, and any additional background that can be obtained, the admissions team makes a diagnosis and determines whether the child will likely benefit from institutionalized care. If the team finds either condition not met, admission is refused.
82
If the team admits a child as suited for hospitalization, the child's condition and continuing need for hospital care are reviewed periodically by at least one independent, medical review group. For the most part, the reviews are as frequent as weekly, but none are less often than once every two months. Moreover, as we noted earlier, the superintendent of each hospital is charged with an affirmative statutory duty to discharge any child who is no longer mentally ill or in need of therapy.21
83
As with most medical procedures, Georgia's are not totally free from risk of error in the sense that they give total or absolute assurance that every child admitted to a hospital has a mental illness optimally suitable for institutionalized treatment. But it bears repeating that "procedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions." Mathews v. Eldridge, supra, 424 U.S., at 344, 96 S.Ct., at 907.
84
Georgia's procedures are not "arbitrary" in the sense that a single physician or other professional has the "unbridled discretion" the District Court saw to commit a child to a regional hospital. To so find on this record would require us to assume that the physicians, psychologists, and mental health professionals who participate in the admission decision and who review each other's conclusions as to the continuing validity of the initial decision are either oblivious or indifferent to the child's welfare—or that they are incompetent. We note, however, the District Court found to the contrary; it was "impressed by the conscientious, dedicated state employed psychiatrists who, with the help of equally conscientious, dedicated state employed psychologists and social workers, faithfully care for the plaintiff children . . . ." 412 F.Supp., at 138.
85
This finding of the District Court also effectively rebuts the suggestion made in some of the briefs amici that hospital administrators may not actually be "neutral and detached" because of institutional pressure to admit a child who has no need for hospital care. That such a practice may take place in some institutions in some places affords no basis for a finding as to Georgia's program; the evidence in the record provides no support whatever for that charge against the staffs at any of the State's eight regional hospitals. Such cases, if they are found, can be dealt with individually;22 they do not lend themselves to class-action remedies.
86
We are satisfied that the voluminous record as a whole supports the conclusion that the admissions staffs of the hospitals have acted in a neutral and detached fashion in making medical judgments in the best interests of the children. The State, through its mental health programs, provides the authority for trained professionals to assist parents in examining, diagnosing, and treating emotionally disturbed children. Through its hiring practices, it provides well-staffed and well-equipped hospitals and—as the District Court found—conscientious public employees to implement the State's beneficent purposes.
87
Although our review of the record in this case satisfies us that Georgia's general administrative and statutory scheme for the voluntary commitment of children is not per se unconstitutional, we cannot decide on this record, whether every child in appellees' class received an adequate, independent diagnosis of his emotional condition and need for confinement under the standards announced earlier in this opinion. On remand, the District Court is free to and should consider any individual claims that initial admissions did not meet the standards we have described in this opinion.
88
In addition, we note that appellees' original complaint alleged that the State had failed to provide adequate periodic review of their need for institutional care and claimed that this was an additional due process violation. Since the District Court held that the appellees' original confinement was unconstitutional, it had no reason to consider this separate claim. Similarly, we have no basis for determining whether the review procedures of the various hospitals are adequate to provide the process called for or what process might be required if a child contests his confinement by requesting a release. These matters require factual findings not present in the District Court's opinion. We have held that the periodic reviews described in the record reduce the risk of error in the initial admission and thus they are necessary. Whether they are sufficient to justify continuing a voluntary commitment is an issue for the District Court on remand. The District Court is free to require additional evidence on this issue.
IV
89
(a) Our discussion in Part III was directed at the situation where a child's natural parents request his admission to a state mental hospital. Some members of appellees' class, including J. R., were wards of the State of Georgia at the time of their admission. Obviously their situation differs from those members of the class who have natural parents. While the determination of what process is due varies somewhat when the state, rather than a natural parent, makes the request for commitment, we conclude that the differences in the two situations do not justify requiring different procedures at the time of the child's initial admission to the hospital.
90
For a ward of the state, there may well be no adult who knows him thoroughly and who cares for him deeply. Unlike with natural parents where there is a presumed natural affection to guide their action, 1 W. Blackstone, Commentaries *447; 2 J. Kent, Commentaries on American Law *190, the presumption that the state will protect a child's general welfare stems from a specific state statute. Ga.Code § 24A-101 (1978). Contrary to the suggestion of the dissent, however, we cannot assume that when the State of Georgia has custody of a child it acts so differently from a natural parent in seeking medical assistance for the child. No one has questioned the validity of the statutory presumption that the State acts in the child's best interest. Nor could such a challenge be mounted on the record before us. There is no evidence that the State, acting as guardian, attempted to admit any child for reasons unrelated to the child's need for treatment. Indeed, neither the District Court nor the appellees have suggested that wards of the State should receive any constitutional treatment different from children with natural parents.
91
Once we accept that the State's application for a child's admission to a hospital is made in good faith, then the question is whether the medical decisionmaking approach of the admitting physician is adequate to satisfy due process. We have already recognized that an independent medical judgment made from the perspective of the best interests of the child after a careful investigation is an acceptable means of justifying a voluntary commitment. We do not believe that the soundness of this decisionmaking is any the less reasonable in this setting.
92
Indeed, if anything, the decision with regard to wards of the State may well be even more reasonable in light of the extensive written records that are compiled about each child while in the State's custody. In J. R.'s case, the admitting physician had a complete social and medical history of the child before even beginning the diagnosis. After carefully interviewing him and reviewing his extensive files, three physicians independently concluded that institutional care was in his best interests. See supra, at 590.
93
Since the state agency having custody and control of the child in loco parentis has a duty to consider the best interests of the child with respect to a decision on commitment to a mental hospital, the State may constitutionally allow that custodial agency to speak for the child, subject, of course, to the restrictions governing natural parents. On this record, we cannot declare unconstitutional Georgia's admission procedures for wards of the State.
94
(b) It is possible that the procedures required in reviewing a ward's need for continuing care should be different from those used to review the need of a child with natural parents. As we have suggested earlier, the issue of what process is due to justify continuing a voluntary commitment must be considered by the District Court on remand. In making that inquiry, the District Court might well consider whether wards of the State should be treated with respect to continuing therapy differently from children with natural parents.
95
The absence of an adult who cares deeply for a child has little effect on the reliability of the initial admission decision, but it may have some effect on how long a child will remain in the hospital. We noted in Addington v. Texas, 141 U.S., at 428-429, 99 S.Ct., at 1811, that "the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected." For a child without natural parents, we must acknowledge the risk of being "lost in the shuffle." Moreover, there is at least some indication that J. R.'s commitment was prolonged because the Department of Family and Children Services had difficulty finding a foster home for him. Whether wards of the State generally have received less protection than children with natural parents, and, if so, what should be done about it, however, are matters that must be decided in the first instance by the District Court on remand,23 if the court concludes the issue is still alive.
V
96
It is important that we remember the purpose of Georgia's comprehensive mental health program. It seeks substantively and at great cost to provide care for those who cannot afford to obtain private treatment and procedurally to screen carefully all applicants to assure that institutional care is suited to the particular patient. The State resists the complex of procedures ordered by the District Court because in its view they are unnecessary to protect the child's rights, they divert public resources from the central objective of administering health care, they risk aggravating the tensions inherent in the family situation, and they erect barriers that may discourage parents from seeking medical aid for a disturbed child.
97
On this record, we are satisfied that Georgia's medical factfinding processes are reasonable and consistent with constitutional guarantees. Accordingly, it was error to hold unconstitutional the State's procedures for admitting a child for treatment to a state mental hospital. The judgment is therefore reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.
98
Reversed and remanded.
99
Mr. Justice STEWART, concurring in the judgment.
100
For centuries it has been a canon of the common law that parents speak for their minor children.1 So deeply imbedded in our traditions is this principle of law that the Constitution itself may compel a State to respect it. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070.2 In ironic contrast, the District Court in this case has said that the Constitutionrequires the State of Georgia to disregard this established principle. I cannot agree.
101
There can be no doubt that commitment to a mental institution results in a "massive curtailment of liberty," Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394. In addition to the physical confinement involved, O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396, a person's liberty is also substantially affected by the stigma attached to treatment in a mental hospital.3 But not every loss of liberty is governmental deprivation of liberty, and it is only the latter that invokes the Due Process Clause of the Fourteenth Amendment.
102
The appellees were committed under the following section of the Georgia Code:
103
"Authority to receive voluntary patients—
104
"(a) The superintendent of any facility may receive for observation and diagnosis any individual 18 years of age, or older, making application therefor, any individual under 18 years of age for whom such application is made by his parent or guardian and any person legally adjudged to be incompetent for whom such application is made by his guardian. If found to show evidence of mental illness and to be suitable for treatment, such person may be given care and treatment at such facility and such person may be detained by such facility for such period and under such conditions as may be authorized by law." Ga.Code § 88-503.1 (1975).
105
Clearly, if the appellees in this case were adults who had voluntarily chosen to commit themselves to a state mental hospital, they could not claim that the State had thereby deprived them of liberty in violation of the Fourteenth Amendment. Just as clearly, I think, children on whose behalf their parents have invoked these voluntary procedures can make no such claim.
106
The Georgia statute recognizes the power of a party to act on behalf of another person under the voluntary commitment procedures in two situations: when the other person is a minor not over 17 years of age and the party is that person's parent or guardian, and when the other person has been "legally adjudged incompetent" and the party is that person's guardian. In both instances two conditions are present. First, the person being committed is presumptively incapable of making the voluntary commitment decision for himself. And second, the parent or guardian is presumed to be acting in that person's best interests.4 In the case of guardians, these presumptions are grounded in statutes whose validity nobody has questioned in this case. Ga.Code § 49-201 (1978).5 In the case of parents, the presumptions are grounded in a statutory embodiment of long-established principles of the common law.
107
Thus, the basic question in this case is whether the Constitution requires Georgia to ignore basic principles so long accepted by our society. For only if the State in this setting is constitutionally compelled always to intervene between parent and child can there be any question as to the constitutionally required extent of that intervention. I believe this basic question must be answered in the negative.6
108
Under our law, parents constantly make decisions for their minor children that deprive the children of liberty, and sometimes even of life itself. Yet surely the Fourteenth Amendment is not invoked when an informed parent decides upon major surgery for his child, even in a state hospital. I can perceive no basic constitutional differences between commitment to a mental hospital and other parental decisions that result in a child's loss of liberty.
109
I realize, of course, that a parent's decision to commit his child to a state mental institution results in a far greater loss of liberty than does his decision to have an appendectomy performed upon the child in a state hospital. But if, contrary to my belief, this factual difference rises to the level of a constitutional difference, then I believe that the objective checks upon the parents' commitment decision, embodied in Georgia law and thoroughly discussed, ante, at 613-617, are more than constitutionally sufficient.
110
To be sure, the presumption that a parent is acting in the best interests of his child must be a rebuttable one, since certainly not all parents are actuated by the unselfish motive the law presumes. Some parents are simply unfit parents. But Georgia clearly provides that an unfit parent can be stripped of his parental authority under laws dealing with neglect and abuse of children.7
111
This is not an easy case. Issues involving the family and issues concerning mental illness are among the most difficult that courts have to face, involving as they often do serious problems of policy disguised as questions of constitutional law. But when a state legislature makes a reasonable definition of the age of minority, and creates a rebuttable presumption that in invoking the statutory procedures for voluntary commitment a parent is acting in the best interests of his minor child, I cannot believe that the Fourteenth Amendment is violated. This is not to say that in this area the Constitution compels a State to respect the traditional authority of a parent, as in the Meyer and Pierce cases. I believe, as in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, that the Constitution would tolerate intervention by the State.8 But that is a far cry from holding that such intervention is constitutionally compelled.
112
For these reasons I concur in the judgment.
113
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice STEVENS join, concurring in part and dissenting in part.
114
I agree with the Court that the commitment of juveniles to state mental hospitals by their parents or by state officials acting in loco parentis involves state action that impacts upon constitutionally protected interests and therefore must be accomplished through procedures consistent with the constitutional mandate of due process of law. I agree also that the District Court erred in interpreting the Due Process clause to require preconfinement commitment hearings in all cases in which parents wish to hospitalize their children. I disagree, however, with the Court's decision to pretermit questions concerning the postadmission procedures due Georgia's institutionalized juveniles. While the question of the frequency of postadmission review hearings may properly be deferred, the right to at least one postadmission hearing can and should be affirmed now. I also disagree with the Court's conclusion concerning the procedures due juvenile wards of the State of Georgia. I believe that the Georgia statute is unconstitutional in that it fails to accord preconfinement hearings to juvenile wards of the State committed by the State acting in loco parentis.
115
* Rights of Children Committed to Mental Institutions
116
Commitment to a mental institution necessarily entails a "massive curtailment of liberty," Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972), and inevitably affects "fundamental rights." Baxstrom v. Herold, 383 U.S. 107, 113, 86 S.Ct. 760, 764, 15 L.Ed.2d 620 (1966). Persons incarcerated in mental hospitals are not only deprived of their physical liberty, they are also deprived of friends, family, and community. Institutionalized mental patients must live in unnatural surroundings under the continuous and detailed control of strangers. They are subject to intrusive treatment which, especially if unwarranted, may violate their right to bodily integrity. Such treatment modalities may include forced administration of psychotropic medication1 aversive conditioning,2 convulsive therapy,3 and even psychosurgery.4 Furthermore, as the Court recognizes, see ante, at 600, persons confined in mental institutions are stigmatized as sick and abnormal during confinement and, in some cases, even after release.5
117
Because of these considerations, our cases have made clear that commitment to a mental hospital "is a deprivation of liberty which the State cannot accomplish without due process of law." O'Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 2496, 45 L.Ed.2d 396 (1975) (BURGER, C. J., concurring). See, e. g., McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972) (defective delinquent commitment following expiration of prison term); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) (sex offender commitment following criminal conviction); Chaloner v. Sherman, 242 U.S. 455, 461, 37 S.Ct. 136, 137, 61 L.Ed. 427 (1917) (incompetence inquiry). In the absence of a voluntary, knowing, and intelligent waiver, adults facing commitment to mental institutions are entitled to full and fair adversary hearings in which the necessity for their commitment is established to the satisfaction of a neutral tribunal. At such hearings they must be accorded the right to "be present with counsel, have an opportunity to be heard, be confronted with witnesses against [them], have the right to cross-examine, and to offer evidence of [their] own." Specht v. Patterson, supra, at 610, 87 S.Ct., at 1212.
118
These principles also govern the commitment of children. "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors as well as adults are protected by the Constitution and possess constitutional rights. See, e. g., Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)." Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788 (1976).
119
Indeed, it may well be argued that children are entitled to more protection than are adults. The consequences of an erroneous commitment decision are more tragic where children are involved. Children, on the average, are confined for longer periods than are adults.6 Moreover, childhood is a particularly vulnerable time of life7 and children erroneously institutionalized during their formative years may bear the scars for the rest of their lives.8 Furthermore, the provision of satisfactory institutionalized mental care for children generally requires a substantial financial commitment9 that too often has not been forthcoming.10 Decisions of the lower courts have chronicled the inadequacies of existing mental health facilities for children. See, e. g., New York State Assn. for Retarded Children v. Rockefeller, 357 F.Supp. 752, 756 (EDNY 1973) (conditions at Willowbrook School for the Mentally Retarded are "inhumane," involving "failure to protect the physical safety of [the] children," substantial personnel shortage, and "poor" and "hazardous" conditions); Wyatt v. Stickney, 344 F.Supp. 387, 391 (MD Ala.1972), aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (CA5 1974) ("grossly substandard" conditions at Partlow School for the Mentally Retarded lead to "hazardous and deplorable inadequacies in the institution's operation.").11
120
In addition, the chances of an erroneous commitment decision are particularly great where children are involved. Even under the best of circumstances psychiatric diagnosis and therapy decisions are fraught with uncertainties. See O'Connor v. Donaldson, supra, 422 U.S., at 584, 95 S.Ct., at 2498 (BURGER, C. J., concurring). These uncertainties are aggravated when, as under the Georgia practice, the psychiatrist interviews the child during a period of abnormal stress in connection with the commitment, and without adequate time or opportunity to become acquainted with the patient.12 These uncertainties may be further aggravated when economic and social class separate doctor and child, thereby frustrating the accurate diagnosis of pathology.13
121
These compounded uncertainties often lead to erroneous commitments since psychiatrists tend to err on the side of medical caution and therefore hospitalize patients for whom other dispositions would be more beneficial.14 The National Institute of Mental Health recently found that only 36% of patients below age 20 who were confined at St. Elizabeths Hospital actually required such hospitalization.15 Of particular relevance to this case, a Georgia study Commission on Mental Health Services for Children and Youth concluded that more than half of the State's institutionalized children were not in need of confinement if other forms of care were made available or used. Cited in J. L. v. Parham, 412 F.Supp. 112, 122 (MD Ga.1976).
II
122
Rights of Children Committed by Their Parents
A.
123
Notwithstanding all this, Georgia denies hearings to juveniles institutionalized at the behest of their parents. Georgia rationalizes this practice on the theory that parents act in their children's best interests and therefore may waive their children's due process rights. Children incarcerated because their parents wish them confined, Georgia contends, are really voluntary patients. I cannot accept this argument.
124
In our society, parental rights are limited by the legitimate rights and interests of their children. "Parents may be free to be become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 (1944). This principle is reflected in the variety of statutes and cases that authorize state intervention on behalf of neglected or abused children16 and that, inter alia, curtail parental authority to alienate their children's property,17 to withhold necessary medical treatment,18 and to deny children exposure to ideas and experiences they may later need as independent and autonomous adults.19
125
This principle is also reflected in constitutional jurisprudence. Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children. States, for example, may not condition a minor's right to secure an abortion on attaining her parents' consent since the right to an abortion is an important personal right and since disputes between parents and children on this question would fracture family autonomy. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 75, 96 S.Ct., at 2844.
126
This case is governed by the rule of Danforth. The right to be free from wrongful incarceration, physical intrusion, and stigmatization has significance for the individual surely as great as the right to an abortion. Moreover, as in Danforth, the parent-child dispute at issue here cannot be characterized as involving only a routine child-rearing decision made within the context of an ongoing family relationship. Indeed, Danforth involved only a potential dispute between parent and child, whereas here a break in family autonomy has actually resulted in the parents' decision to surrender custody of their child to a state mental institution. In my view, a child who has been ousted from his family has even greater need for an independent advocate.
127
Additional considerations counsel against allowing parents unfettered power to institutionalize their children without cause or without any hearing to ascertain that cause. The presumption that parents act in their children's best interests, while applicable to most child-rearing decisions, is not applicable in the commitment context. Numerous studies reveal that parental decisions to institutionalize their children often are the results of dislocation in the family unrelated to the children's mental condition.20 Moreover, even well-meaning parents lack the expertise necessary to evaluate the relative advantages and disadvantages of inpatient as opposed to outpatient psychiatric treatment. Parental decisions to waive hearings in which such questions could be explored, therefore, cannot be conclusively deemed either informed or intelligent. In these circumstances, I respectfully suggest, it ignores reality to assume blindly that parents act in their children's best interests when making commitment decisions and when waiving their children's due process rights.
B
128
This does not mean States are obliged to treat children who are committed at the behest of their parents in precisely the same manner as other persons who are involuntarily committed. The demands of due process are flexible and the parental commitment decision carries with it practical implications that States may legitimately take into account. While as a general rule due process requires that commitment hearings precede involuntary hospitalization, when parents seek to hospitalize their children special considerations militate in favor of postponement of formal commitment proceedings and against mandatory adversary preconfinement commitment hearings.
129
First, the prospect of an adversary hearing prior to admission might deter parents from seeking needed medical attention for their children. Second, the hearings themselves might delay treatment of children whose home life has become impossible and who require some form of immediate state care. Furthermore, because adversary hearings at this juncture would necessarily involve direct challenges to parental authority, judgment, or veracity, preadmission hearings may well result in pitting the child and his advocate against the parents. This, in turn, might traumatize both parent and child and make the child's eventual return to his family more difficult.
130
Because of these special considerations, I believe that States may legitimately postpone formal commitment proceedings when parents seek inpatient psychiatric treatment for their children. Such children may be admitted, for a limited period, without prior hearing, so long as the admitting psychiatrist first interviews parent and child and concludes that short-term inpatient treatment would be appropriate.
131
Georgia's present admission procedures are reasonably consistent with these principles. See ante, at 613-616. To the extent the District Court invalidated this aspect of the Georgia juvenile commitment scheme and mandated preconfinement hearings in all cases, I agree with the Court that the District Court was in error.
C
132
I do not believe, however, that the present Georgia juvenile commitment scheme is constitutional in its entirety. Although Georgia may postpone formal commitment hearings, when parents seek to commit their children, the State cannot dispense with such hearings altogether. Our cases make clear that, when protected interests are at stake, the "fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), quoting in part from Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). Whenever prior hearings are impracticable, States must provide reasonably prompt postdeprivation hearings. Compare North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), with Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).
133
The informal postadmission procedures that Georgia now follows are simply not enough to qualify as hearings—let alone reasonably prompt hearings. The procedures lack all the traditional due process safeguards. Commitment decisions are made ex parte. Georgia's institutionalized juveniles are not informed of the reasons for their commitment; nor do they enjoy the right to be present at the commitment determination, the right to representation, the right to be heard, the right to be confronted with adverse witnesses, the right to cross-examine, or the right to offer evidence of their own. By any standard of due process, these procedures are deficient. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972); Specht v. Patterson, 386 U.S., at 610, 87 S.Ct., at 1212. See also Goldberg v. Kelly, 397 U.S. 254, 269-271, 90 S.Ct. 1011, 1021-1022, 25 L.Ed.2d 287 (1970). I cannot understand why the Court pretermits condemnation of these ex parte procedures which operate to deny Georgia's institutionalized juveniles even "some form of hearing," Mathews v. Eldridge, supra, 424 U.S., at 333, 96 S.Ct., at 902, before they are condemned to suffer the rigors of long-term institutional confinement.21
134
The special considerations that militate against preadmission commitment hearings when parents seek to hospitalize their children do not militate against reasonably prompt postadmission commitment hearings. In the first place, postadmission hearings would not delay the commencement of needed treatment. Children could be cared for by the State pending the disposition decision.
135
Second, the interest in avoiding family discord would be less significant at this stage since the family autonomy already will have been fractured by the institutionalization of the child. In any event, postadmission hearings are unlikely to disrupt family relationships. At later hearings, the case for and against commitment would be based upon the observations of the hospital staff and the judgments of the staff psychiatrists, rather than upon parental observations and recommendations. The doctors urging commitment, and not the parents, would stand as the child's adversaries. As a consequence, postadmission commitment hearings are unlikely to involve direct challenges to parental authority, judgment, or veracity. To defend the child, the child's advocate need not dispute the parents' original decision to seek medical treatment for their child, or even, for that matter, their observations concerning the child's behavior. The advocate need only argue, for example, that the child had sufficiently improved during his hospital stay to warrant outpatient treatment or outright discharge. Conflict between doctor and advocate on this question is unlikely to lead to family discord.
136
As a consequence, the prospect of a postadmission hearing is unlikely to deter parents from seeking medical attention for their children and the hearing itself is unlikely so to traumatize parent and child as to make the child's eventual return to the family impracticable.
137
Nor would postadmission hearings defeat the primary purpose of the state juvenile mental health enterprise. Under the present juvenile commitment scheme, Georgia parents do not enjoy absolute discretion to commit their children to public mental hospitals. See ante, at 614-615. Superintendents of state facilities may not accept children for long-term treatment unless they first determine that the children are mentally ill and will likely benefit from long-term hospital care. See ibid. If the superintendent determines either condition is unmet, the child must be released or refused admission, regardless of the parents' desires. See ibid. No legitimate state interest would suffer if the superintendent's determinations were reached through fair proceedings with due consideration of fairly presented opposing viewpoints rather than through the present practice of secret, ex parte deliberations.22
138
Nor can the good faith and good intentions of Georgia's psychiatrists and social workers, adverted to by the Court, see ante, at 615-616, excuse Georgia's ex parte procedures. Georgia's admitting psychiatrists, like the school disciplinarians described in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), "although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed." Id., at 580, 95 S.Ct., at 739. See App. 188-190, testimony of Dr. Messinger. Here, as in Goss, the "risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the . . . process. '[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . .' 'Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.' " Goss v. Lopez, supra, at 580, 95 S.Ct., at 739, quoting in part from Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170, 171-172, 71 S.Ct. 624, 647-648, 649, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
III
139
Rights of Children Committed by Their State Guardians
140
Georgia does not accord prior hearings to juvenile wards of the State of Georgia committed by state social workers acting in loco parentis. The Court dismisses a challenge to this practice on the grounds that state social workers are obliged by statute to act in the children's best interest. See ante, at 619.
141
I find this reasoning particularly unpersuasive. With equal logic, it could be argued that criminal trials are unnecessary since prosecutors are not supposed to prosecute innocent persons.
142
To my mind, there is no justification for denying children committed by their social workers the prior hearings that the Constitution typically requires. In the first place, such children cannot be said to have waived their rights to a prior hearing simply because their social workers wished them to be confined. The rule that parents speak for their children, even if it were applicable in the commitment context, cannot be transmuted into a rule that state social workers speak for their minor clients. The rule in favor of deference to parental authority is designed to shield parental control of child rearing from state interference. See Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). The rule cannot be invoked in defense of unfettered state control of child rearing or to immunize from review the decisions of state social workers. The social worker-child relationship is not deserving of the special protection and deference accorded to the parent-child relationship, and state officials acting in loco parentis cannot be equated with parents. See O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
143
Second, the special considerations that justify postponement of formal commitment proceedings whenever parents seek to hospitalize their children are absent when the children are wards of the State and are being committed upon the recommendations of their social workers. The prospect of preadmission hearings is not likely to deter state social workers from discharging their duties and securing psychiatric attention for their disturbed clients. Moreover, since the children will already be in some form of state custody as wards of the State, prehospitalization hearings will not prevent needy children from receiving state care during the pendency of the commitment proceedings. Finally, hearings in which the decisions of state social workers are reviewed by other state officials are not likely to traumatize the children or to hinder their eventual recovery.
144
For these reasons, I believe that, in the absence of exigent circumstances, juveniles committed upon the recommendation of their social workers are entitled to preadmission commitment hearings. As a consequence, I would hold Georgia's present practice of denying these juveniles prior hearings unconstitutional.
IV
145
Children incarcerated in public mental institutions are constitutionally entitled to a fair opportunity to contest the legitimacy of their confinement. They are entitled to some champion who can speak on their behalf and who stands ready to oppose a wrongful commitment. Georgia should not be permitted to deny that opportunity and that champion simply because the children's parents or guardians wish them to be confined without a hearing. The risk of erroneous commitment is simply too great unless there is some form of adversary review. And fairness demands that children abandoned by their supposed protectors to the rigors of institutional confinement be given the help of some separate voice.
1
Pending our review, one of the named plaintiffs before the District Court, J. L., died. Although the individual claim of J. L. is moot, we discuss the facts of this claim because, in part, they form the basis for the District Court's holding.
2
The class certified by the District Court, without objection by appellants, consisted "of all persons younger than 18 years of age now or hereafter received by any defendant for observation and diagnosis and/or detained for care and treatment at any 'facility' within the State of Georgia pursuant to" Ga.Code § 88-503.1 (1975). Although one witness testified that on any given day there may be 200 children in the class, in December 1975 there were only 140.
3
Section 88-503.1 provides:
"The superintendent of any facility may receive for observation and diagnosis . . . any individual under 18 years of age for whom such application is made by his parent or guardian . . . . If found to show evidence of mental illness and to be suitable for treatment, such person may be given care and treatment at such facility and such person may be detained by such facility for such period and under such conditions as may be authorized by law."
Section 88-503.2 provides:
"The superintendent of the facility shall discharge any voluntary patient who has recovered from his mental illness or who has sufficiently improved that the superintendent determines that hospitalization of the patient is no longer desirable."
Section 88-503 was amended in some respects in 1978, but references herein are to the provisions in effect at the time in question.
4
Although the State has eight regional hospitals, superintendents from only seven of them were deposed. In addition, the District Court referred to only seven hospitals in its list of members of the plaintiff class. Apparently, the eighth hospital, Northwest Regional in Rome, Ga., had no children being treated there. The District Court's order was issued against the State Commissioner of the Department of Human Resources, who is responsible for the activities of all eight hospitals, including Northwest Regional.
5
The source for these data is National Association of State Mental Health Program Directors, State Report: State Mental Health Agency Expenditures (Aug. 1, 1978).
6
The record is very sparse with regard to the physical facilities and daily routines at the various regional hospitals. The only hospital discussed by appellees' expert witness was Central State. The District Court visited Central State and one other hospital, but did not discuss the visits in its opinion.
7
In both respects, the District Court found strong support for its holding in this Court's decision in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In that decision, we held that a state cannot institutionalize a juvenile delinquent without first providing certain due process protections.
8
In light of the District Court's holding that a judicial or quasi-judicial body should review voluntary commitment decisions, it is at least interesting to note that the witness who made the statement quoted in the text was not referring to parents as the people who "dump" children into hospitals. This witness opined that some juvenile court judges and child welfare agencies misused the hospitals. App. 768. See also Rolfe & MacClintock, The Due Process Rights of Minors "Voluntarily Admitted" to Mental Institutions, 4 J. Psychiatry & L. 333, 351 (1976) (hereinafter Rolfe & MacClintock).
9
This study was conducted by the Study Commission on Mental Health Services for Children and Youth and was financed by the State of Georgia. The Commission was made up of eight distinguished scholars in the field of mental health. They spent six months studying the five regional hospitals that were in existence at that time.
10
See, e. g., Community Health Centers Act, 77 Stat. 290, as amended, 42 U.S.C. § 2689 et seq.
11
In this part of the opinion, we will deal with the issues arising when the natural parents of the child seek commitment to a state hospital. In Part IV, we will deal with the situation presented when the child is a ward of the state.
12
See also Gove & Fain, The Stigma of Mental Hospitalization, 28 Archives of General Psychiatry 494, 500 (1973); Phillips, Rejection of the Mentally Ill: The Influence of Behavior and Sex, 29 Am.Sociological Rev. 679, 686-687 (1964). Research by Schwartz, Myers, and Astrachan and that of Gove and Fain found "that the stigma of mental hospitalization is not a major problem for the ex-patient." Schwartz, Myers, & Astrachan, Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 Archives of General Psychiatry 329, 333 (1974).
13
As Schwartz, Myers, and Astrachan concluded:
"Discharge [from a mental hospital] before disturbed behavior is well controlled may advance the patient into an inhospitable world that can incubate the chronicity that was to be avoided in the first place." Id., at 334.
14
Judge Friendly has cogently pointed out:
"It should be realized that procedural requirements entail the expenditure of limited resources, that at some point the benefit to individuals from an additional safeguard is substantially outweighed by the cost of providing such protection, and that the expense of protecting those likely to be found undeserving will probably come out of the pockets of the deserving." Friendly, "Some Kind of Hearing," 123 U.Pa.L.Rev. 1267, 1276 (1975). See also Wheeler v. Montgomery, 397 U.S. 280, 282, 90 S.Ct. 1026, 1027, 25 L.Ed.2d 307 (1970) (dissenting opinion).
15
As we discuss more fully later, infra, at 617, the District Court did not decide and we therefore have no reason to consider at this time what procedures for review are independently necessary to justify continuing a child's confinement. We merely hold that a subsequent, independent review of the patient's condition provides a necessary check against possible arbitrariness in the initial admission decision.
16
Relying on general statements from past decisions dealing with governmental actions not even remotely similar to those involved here, the dissent concludes that if a protectible interest is involved then there must be some form of traditional, adversary, judicial, or administrative hearing either before or after its deprivation. That result is mandated, in their view, regardless of what process the state has designed to protect the individual and regardless of what the record demonstrates as to the fairness of the state's approach.
The dissenting approach is inconsistent with our repeated assertion that "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (emphasis added). Just as there is no requirement as to exactly what procedures to employ whenever a traditional judicial-type hearing is mandated, compare Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Morrissey v. Brewer, supra, with Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), there is no reason to require a judicial-type hearing in all circumstances. As the scope of governmental action expands into new areas creating new controversies for judicial review, it is incumbent on courts to design procedures that protect the rights of the individual without unduly burdening the legitimate efforts of the states to deal with difficult social problems. The judicial model for factfinding for all constitutionally protected interests, regardless of their nature, can turn rational decisionmaking into an unmanageable enterprise.
17
See Albers & Pasewark, Involuntary Hospitalization: Surrender at the Courthouse, 2 Am.J.Community Psychology 287, 288 (1974) (mean hearing time for 21 of 300 consecutive commitment cases was 9.2 minutes); Miller & Schwartz, County Lunacy Commission Hearings: Some Observations of Commitments to a State Mental Hospital, 14 Social Prob. 26 (1966) (mean time for hearings was 3.8 minutes); Scheff, The Societal Reaction to Deviance: Ascriptive Elements in the Psychiatric Screening of Mental Patients in a Midwestern State, 11 Social Prob. 401 (1964) (average hearing lasted 9.2 minutes). See also Cohen, The Function of the Attorney and the Commitment of the Mentally Ill, 44 Texas L.Rev. 424 (1966).
18
While not altogether clear, the District Court opinion apparently contemplated a hearing preceded by a written notice of the proposed commitment. At the hearing the child presumably would be given an opportunity to be heard and present evidence, and the right to cross-examine witnesses, including, of course, the parents. The court also required an impartial trier of fact who would render a written decision reciting the reasons for accepting or rejecting the parental application.
Since the parents in this situation are seeking the child's admission to the state institution, the procedure contemplated by the District Court presumably would call for some other person to be designated as a guardian ad litem to act for the child. The guardian, in turn, if not a lawyer, would be empowered to retain counsel to act as an advocate of the child's interest.
Of course, a state may elect to provide such adversary hearings in situations where it perceives that parents and a child may be at odds, but nothing in the Constitution compels such procedures.
19
In evaluating the problem of detecting "dumping" by parents, it is important to keep in mind that each of the regional hospitals has a continuing relationship with the Department of Family and Children Services. The staffs at those hospitals refer cases to the Department when they suspect a child is being mistreated and thus are sensitive to this problem. In fact, J. L.'s situation is in point. The family conflicts and problems were well documented in the hospital records. Equally well documented, however, were the child's severe emotional disturbances and his need for treatment.
20
Alaska Stat.Ann. § 47.30.020 (1975); Ariz.Rev.Stat.Ann. §§ 36-518, 36-519 (1974); Ark.Stat.Ann. § 59-405 (B) (1971); Cal.Welf. & Inst.Code Ann. § 6000 (West Supp.1979); D.C.Code §§ 21-511, 21-512 (1973); Fla.Stat. § 394.465(1)(a) (Supp.1979); Ga.Code §§ 88-503.1, 88-503.2 (1978); Haw.Rev.Stat. § 334-60(a)(2) (1976) (only for child less than 15); Idaho Code §§ 66-318, 66-320 (Supp.1978) (parent may admit child under 14, but child over 16 may obtain release); Ill.Rev.Stat., ch. 911/2, §§ 3-502, 3-503 (Supp.1978); Ind.Code § 16-14-9.1-2 (1976); Kan.Stat.Ann. §§ 59-2905, 59-2907 (Supp.1978); Ky.Rev.Stat. § 202A.020 (1977); La.Rev.Stat.Ann. § 28:57(C) (West Supp.1979); Md.Ann.Code, Art. 59, § 11(g) (Supp.1978) (parental consent permissible only to some facilities); Mass.Gen.Laws Ann., ch. 123, § 10(a) (West Supp.1979); Mich.Comp.Laws § 330.1415 (1976) (child may object within 30 days and receive a hearing); Miss.Code Ann. § 41-21-103(1) (Supp.1978) (certificate of need for treatment from two physicians required); Mo.Rev.Stat. §§ 202.115(1)(2), 202.115(2)(2) (1978); Nev.Rev.Stat. §§ 422A.560, 433A.540 (1975); N.Y. Mental Hyg. Law § 9.13 (McKinney 1978) (parent may admit, but child may obtain own release); N.D.Cent.Code § 25-03.1-04 (Supp.1977); Ohio Rev.Code Ann. § 5122.02(B) (Supp.1978); Okl.Stat., Tit. 43A, § 184 (1971); Or.Rev.Stat. § 426.220(1) (1977); Pa.Stat.Ann., Tit. 50, § 7201 (Purdon Supp.1978-1979) (only for child less than 14); R.I.Gen.Laws § 26-2-8 (Supp.1978) (requires certificate of two physicians that child is insane); S.C.Code § 44-17-310(2) (Supp.1978); S.D.Comp.Laws Ann. § 27A-8-2 (1976); Tenn.Code Ann. § 33-601(a)(1) (1977); Utah Code Ann. §§ 64-7-29, 64-7-31(2) (1953); Wash.Rev.Code § 72.23.070(2) (1978) (child over 13 also must consent); W.Va.Code § 27-4-1(b) (1976) (consent of child over 12 required); Wyo.Stat. § 25-3-106(a)(i) (1977).
21
While the record does demonstrate that the procedures may vary from case to case, it also reflects that no child in Georgia was admitted for indefinite hospitalization without being interviewed personally and without the admitting physician's checking with secondary sources, such as school or work records.
22
One important means of obtaining individual relief for these children is the availability of habeas corpus. As the appellants' brief explains, "Ga.Code § 88-502.11 . . . provides that at any time and without notice a person detained in a facility, or a relative or friend of such person, may petition for a writ of habeas corpus to question the cause and legality of the detention of the person." Brief for Appellants 36-37.
23
To remedy the constitutional violation, the District Court ordered hearings to be held for each member of the plaintiff class, see n. 2, supra. For 46 members of the class found to be treatable in "less drastic" settings, the District Court also ordered the State to expend such moneys as were necessary to provide alternative treatment facilities and programs. While the order is more appropriate as a remedy for a substantive due process violation, the court made no findings on that issue. The order apparently was intended to remedy the procedural due process violation it found. Since that judgment is reversed, there is no basis for us to consider the correctness of the remedy.
1
See 1 W. Blackstone, Commentaries *452-453; 2 J. Kent, Commentaries on American Law *203-206; J. Schouler, A Treatise on the Law of Domestic Relations 335-353 (3d ed. 1882); G. Field, The Legal Relations of Infants 63-80 (1888).
"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.
"The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." Wisconsin v. Yoder, 406 U.S. 205, at 232, 92 S.Ct., 1526, at 1542, 32 L.Ed.2d 15.
"Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent." Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 102, 96 S.Ct. 2831, 2856, 49 L.Ed.2d 788 (STEVENS, J., concurring in part and dissenting in part).
Cf. Stump v. Sparkman, 435 U.S. 349, 366, 98 S.Ct. 1099, 1109-1110, 55 L.Ed.2d 331 (dissenting opinion).
2
"The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Pierce v. Society of Sisters, 268 U.S., at 535, 45 S.Ct., at 573.
3
The fact that such a stigma may be unjustified does not mean it does not exist. Nor does the fact that public reaction to past commitment may be less than the reaction to aberrant behavior detract from this assessment. The aberrant behavior may disappear, while the fact of past institutionalization lasts forever.
4
This is also true of a child removed from the control of his parents. For the juvenile court then has a duty to "secure for him care as nearly as possible equivalent to that which [his parents] should have given him." Ga.Code § 24A-101 (1978).
5
"The power of the guardian over the person of his or her ward shall be the same as that of the parent over his or her child, the guardian standing in his or her place; and in like manner it shall be the duty of the guardian to protect and maintain, and, according to the circumstances of the ward, to educate him or her."
6
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788, was an entirely different case. The Court's opinion today discusses some of these differences, ante, at 604, but I think there is a more fundamental one. The Danforth case involved an expectant mother's right to decide upon an abortion—a personal substantive constitutional right. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201. By contrast, the appellees in this case had no substantive constitutional right not to be hospitalized for psychiatric treatment.
7
See Mr. Justice BRENNAN's opinion, post, at 630-631, and n. 16.
8
The Prince case held that the State may constitutionally intervene in the parent-child relationship for the purpose of enforcing its child-labor law.
If the State intervened, its procedures would, of course, be subject to the limitations imposed by the Fourteenth Amendment.
1
See Winters v. Miller, 446 F.2d 65 (CA2), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971); Scott v. Plante, 532 F.2d 939 (CA3 1976); Souder v. McGuire, 423 F.Supp. 830 (MD Pa.1976).
2
See Knecht v. Gillman, 488 F.2d 1136 (CA8 1973); Mackey v. Procunier, 477 F.2d 877 (CA9 1973).
3
See Wyatt v. Hardin, No. 3195-N (MD Ala., Feb. 28, June 26, and July 1, 1975); Price v. Sheppard, 307 Minn. 250, 239 N.W.2d 905 (1976); Nelson v. Hudspeth, C.A. No. J75-40 (R) (SD Miss., May 16, 1977).
4
See Kaimowitz v. Michigan Dept. of Mental Health, 42 U.S.L.W. 2063 (Cir.Ct. Wayne Cty., Mich., 1973).
5
See generally Note, Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1200 (1974).
6
See Dept. of HEW, National Institute of Mental Health, Biometry Branch, Statistical Note 90, Utilization of Psychiatric Facilities by Persons 18 Years of Age, Table 8, p. 14 (July 1973).
7
See J. Bowlby, Child Care and the Growth of Love 80 (1953); J. Horrocks, The Psychology of Adolescence 156 (1976); F. Elkin, Agents of Socialization in Children's Behavior 357, 360 (R. Bergman ed. 1968).
8
See B. Flint, The Child and the Institution 14-15 (1966); H. Leland & D. Smith, Mental Retardation: Present and Future Perspectives 86 (1974); N. Hobbs, The Futures of Children 142-143 (1975).
9
See Joint Commission on Mental Health of Children, Crisis in Child Mental Health: Challenge for the 1970's p. 271 (1969).
10
See R. Kugel & W. Wolfensberger, Changing Patterns in Residential Services for the Mentally Retarded 22 (1969).
11
See also Wheeler v. Glass, 473 F.2d 983 (CA7 1973); Davis v. Watkins, 384 F.Supp. 1196 (ND Ohio 1974); Welsch v. Likins, 373 F.Supp. 487 (D Minn.1974).
12
See J. Simmons, Psychiatric Examination of Children 1, 6 (1974); Lourie & Rieger, Psychiatric and Psychological Examination of Children, in 2 American Handbook of Psychiatry 19 (2d ed. 1974).
13
See Joint Commission on Mental Health of Children, supra n. 9, at 267.
14
See T. Scheff, Being Mentally Ill: A Sociological Theory (1966); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif.L.Rev. 693 (1974).
15
See Dept. of HEW, National Institute of Mental Health, Biometry Branch, Statistical Note 115, Children and State Mental Hospitals 4 (Apr.1975).
16
See generally S. Katz, When Parents Fail (1971); M. Midonick & D. Besharov, Children, Parents and the Courts: Juvenile Delinquency, Ungovernability, and Neglect (1972); Wald, State Intervention on Behalf of "Neglected" Children: A Search for Realistic Standards, 27 Stan.L.Rev. 985 (1975).
17
See, e. g., Martorell v. Ochoa, 276 F. 99 (CA1 1921).
18
See, e. g., Jehovah's Witnesses v. King County Hospital, 278 F.Supp. 488 (WD Wash.1967), aff'd, 390 U.S. 598, 88 S.Ct. 1260, 20 L.Ed.2d 158 (1968); In re Sampson, 65 Misc.2d 658, 317 N.Y.S.2d 641 (Fam.Ct. Ulster County, 1970), aff'd, 37 A.D.2d 668, 323 N.Y.S.2d 253 (1971), aff'd, 29 N.Y.2d 900, 328 N.Y.S.2d 686, 278 N.E.2d 918 (1972); State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962). Similarly, more recent legal disputes involving the sterilization of children had led to the conclusion that parents are not permitted to authorize operations with such far-reaching consequences. See, e. g., A. L. v. G. R. H., 163 Ind.App. 636, 325 N.E.2d 501 (1975); In re M. K. R., 515 S.W.2d 467 (Mo.1974); Frazier v. Levi, 440 S.W.2d 393 (Tex.Civ.App.1969).
19
See Commonwealth v. Renfrew, 332 Mass. 492, 126 N.E.2d 109 (1955); Meyerkorth v. State, 173 Neb. 889, 115 N.W.2d 585 (1962), appeal dism'd, 372 U.S. 705, 83 S.Ct. 1018, 10 L.Ed.2d 125 (1963); In re Weberman, 198 Misc. 1055, 100 N.Y.S.2d 60 (Sup.Ct.1950), aff'd 278 App.Div. 656, 102 N.Y.S.2d 418, aff'd, 302 N.Y. 855, 100 N.E.2d 47, appeal dism'd, 342 U.S. 884, 72 S.Ct. 178, 96 L.Ed. 663 (1951).
20
Murdock, Civil Rights of the Mentally Retarded: Some Critical Issues, 48 Notre Dame Law. 133, 138 (1972); Vogel & Bell, The Emotionally Disturbed Child as the Family Scapegoat, in a Modern Introduction to the Family 412 (1968).
21
The National Institute of Mental Health has reported: "[T]housands upon thousands of elderly patients now confined on the back wards of . . . state [mental] institutions were first admitted as children thirty, forty, and even fifty years ago. A recent report from one state estimates that one in every four children admitted to its mental hospitals 'can anticipate being permanently hospitalized for the next 50 years of their lives.' " Joint Commission on Mental Health of Children, supra n. 9, at 5-6.
22
Indeed, postadmission hearings may well advance the purposes of the state enterprise. First, hearings will promote accuracy and ensure that the superintendent diverts children who do not require hospitalization to more appropriate programs. Second, the hearings themselves may prove therapeutic. Children who feel that they have received a fair hearing may be more likely to accept the legitimacy of their confinement, acknowledge their illness, and cooperate with those attempting to give treatment. This, in turn, would remove a significant impediment to successful therapy. See Katz, The Right to Treatment—An Enchanting Legal Fiction?, 36 U.Chi.L.Rev. 755, 768-769 (1969); O'Connor v. Donaldson, 422 U.S. 563, 579, 95 S.Ct. 2486, 2495, 45 L.Ed.2d 396 (1975) (BURGER, C. J., concurring).
| 12
|
443 U.S. 47
99 S.Ct. 2637
61 L.Ed.2d 357
Zackary C. BROWN, Appellant,v.State of TEXAS.
No. 77-6673.
Argued Feb. 21, 1979.
Decided June 25, 1979.
Syllabus
Two police officers, while cruising near noon in a patrol car, observed appellant and another man walking away from one another in an alley in an area with a high incidence of drug traffic. They stopped and asked appellant to identify himself and explain what he was doing. One officer testified that he stopped appellant because the situation "looked suspicious and we had never seen that subject in that area before." The officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed. When appellant refused to identify himself, he was arrested for violation of a Texas statute which makes it a criminal act for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information." Appellant's motion to set aside an information charging him with violation of the statute on the ground that the statute violated the First, Fourth, Fifth, and Fourteenth Amendments was denied, and he was convicted and fined.
Held : The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be "reasonable." Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607. The Fourth Amendment requires that such a seizure be based on specific, objective facts indicating that society's legitimate interests require such action, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. Here, the State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, and the officers' actions were not justified on the ground that they had a reasonable suspicion, based on objective facts, that he was involved in criminal activity. Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal security and privacy tilts in favor of freedom from police interference. Pp. 50-53.
Reversed.
Raymond C. Caballero, El Paso, Tex., for appellant.
Renea Hicks, Austin, Tex., for appellee, pro hac vice, by special leave of Court.
Mr. CHIEF JUSTICE BURGER delivered the opinion of the Court.
1
This appeal presents the question whether appellant was validly convicted for refusing to comply with a policeman's demand that he identify himself pursuant to a provision of the Texas Penal Code which makes it a crime to refuse such identification on request.
2
* At 12:45 in the afternoon of December 9, 1977, Officers Venegas and Sotelo of the El Paso Police Department were cruising in a patrol car. They observed appellant and another man walking in opposite directions away from one another in an alley. Although the two men were a few feet apart when they first were seen, Officer Venegas later testified that both officers believed the two had been together or were about to meet until the patrol car appeared.
3
The car entered the alley, and Officer Venegas got out and asked appellant to identify himself and explain what he was doing there. The other man was not questioned or detained. The officer testified that he stopped appellant because the situation "looked suspicious and we had never seen that subject in that area before." The area of El Paso where appellant was stopped has a high incidence of drug traffic. However, the officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed.
4
Appellant refused to identify himself and angrily asserted that the officers had no right to stop him. Officer Venegas replied that he was in a "high drug problem area"; Officer Sotelo then "frisked" appellant, but found nothing.
5
When appellant continued to refuse to identify himself, he was arrested for violation of Texas Penal Code Ann. § 38.02(a) (1974), which makes it a criminal act for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information."1 Following the arrest the officers searched appellant; nothing untoward was found.
6
While being taken to the El Paso County Jail appellant identified himself. Nonetheless, he was held in custody and charged with violating § 38.02(a). When he was booked he was routinely searched a third time. Appellant was convicted in the El Paso Municipal Court and fined $20 plus court costs for violation of § 38.02. He then exercised his right under Texas law to a trial de novo in the El Paso County Court. There, he moved to set aside the information on the ground that § 38.02(a) of the Texas Penal Code violated the First, Fourth, and Fifth Amendments and was unconstitutionally vague in violation of the Fourteenth Amendment. The motion was denied. Appellant waived a jury, and the court convicted him and imposed a fine of $45 plus court costs.
7
Under Texas law an appeal from an inferior court to a county court is subject to further review only if a fine exceeding $100 is imposed. Tex.Code Crim.Proc.Ann., Art. 4.03 (Vernon 1977). Accordingly, the County Court's rejection of appellant's constitutional claims was a decision "by the highest court of a State in which a decision could be had." 28 U.S.C. § 1257(2). On appeal here we noted probable jurisdiction. 439 U.S. 909, 99 S.Ct. 276, 58 L.Ed.2d 255 (1978). We reverse.
II
8
When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment. In convicting appellant, the County Court necessarily found as a matter of fact that the officers "lawfully stopped" appellant. See Tex.Penal Code Ann., Tit. 8, § 38.02 (1974). The Fourth Amendment, of course, "applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). " '[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person,' id., at 16, 88 S.Ct., at 1877, and the Fourth Amendment requires that the seizure be 'reasonable.' " United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).
9
The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, 442 U.S. 200, 209-210, 99 S.Ct. 2248, 2254-2255, 60 L.Ed.2d 824 (1979); Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968), depends " 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' " Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977); United States v. Brignoni-Ponce, supra, 422 U.S., at 878, 95 S.Ct., at 2578. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. See, e. g., 422 U.S., at 878-883, 95 S.Ct., at 2578-2581.
10
A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U.S. 648, 654-655, 99 S.Ct. 1391, 1396-1397, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, supra, 422 U.S., at 882, 95 S.Ct., at 2580. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra, at 663, 99 S.Ct., at 1401. See United States v. Martinez-Fuerte, 428 U.S. 543, 558-562, 96 S.Ct. 3074, 3083-3085, 49 L.Ed.2d 1116 (1976).
11
The State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, but rather maintains that the officers were justified in stopping appellant because they had a "reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed." We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have "probable cause" to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, supra, 422 U.S., at 880-881, 95 S.Ct., at 2580. See Terry v. Ohio, supra, 392 U.S., at 25-26, 88 S.Ct., at 1882. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Delaware v. Prouse, supra, at 663, 99 S.Ct., at 1401; United States v. Brignoni-Ponce, supra 422 U.S., at 882-883, 95 S.Ct., at 2581; see also Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939).
12
The flaw in the State's case is that none of the circumstances preceding the officers' detention of appellant justified a reasonable suspicion that he was involved in criminal conduct. Officer Venegas testified at appellant's trial that the situation in the alley "looked suspicious," but he was unable to point to any facts supporting that conclusion.2 There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant's activity was no different from the activity of other pedestrians in that neighborhood. When pressed, Officer Venegas acknowledged that the only reason he stopped appellant was to ascertain his identity. The record suggests an understandable desire to assert a police presence; however, that purpose does not negate Fourth Amendment guarantees.
13
In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, at 661, 99 S.Ct., at 1400.
14
The application of Tex.Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct.3 Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is
15
Reversed.
APPENDIX TO OPINION OF THE COURT
16
"THE COURT: . . . What do you think about if you stop a person lawfully, and then if he doesn't want to talk to you, you put him in jail for committing a crime.
17
"MR. PATTON [Prosecutor]: Well first of all, I would question the Defendant's statement in his motion that the First Amendment gives an individual the right to silence.
18
"THE COURT: . . . I'm asking you why should the State put you in jail because you don't want to say anything.
19
"MR. PATTON: Well, I think there's certain interests that have to be viewed.
20
"THE COURT: Okay, I'd like you to tell me what those are.
21
"MR. PATTON: Well, the Governmental interest to maintain the safety and security of the society and the citizens to live in the society, and there are certainly strong Governmental interests in that direction and because of that, these interests outweigh the interests of an individual for a certain amount of intrusion upon his personal liberty. I think these Governmental interests outweigh the individual's interests in this respect, as far as simply asking an individual for his name and address under the proper circumstances.
22
"THE COURT: But why should it be a crime to not answer?
23
"MR. PATTON: Again, I can only contend that if an answer is not given, it tends to disrupt.
24
"THE COURT: What does it disrupt?
25
"MR. PATTON: I think it tends to disrupt the goal of this society to maintain security over its citizens to make sure they are secure in their gains and their homes.
26
"THE COURT: How does that secure anybody by forcing them, under penalty of being prosecuted, to giving their name and address, even though they are lawfully stopped?
27
"MR. PATTON: Well I, you know, under the circumstances in which some individuals would be lawfully stopped, it's presumed that perhaps this individual is up to something, and the officer is doing his duty simply to find out the individual's name and address, and to determine what exactly is going on.
28
"THE COURT: I'm not questioning, I'm not asking whether the officer shouldn't ask questions. I'm sure they should ask everything they possibly could find out. What I'm asking is what's the State's interest in putting a man in jail because he doesn't want to answer something. I realize lots of times an officer will give a defendant a Miranda warning which means a defendant doesn't have to make a statement. Lots of defendants go ahead and confess, which is fine if they want to do that. But if they don't confess, you can't put them in jail, can you, for refusing to confess to a crime?" App. 15-17 (emphasis added).
1
The entire section reads as follows:
"§ 38.02 Failure to Identify as Witness
"(a) A person commits an offense if he intentionally refuses to report or gives a false report of his name and residence address to a peace officer who has lawfully stopped him and requested the information."
2
This situation is to be distinguished from the observations of a trained, experienced police officer who is able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer. See United States v. Brignoni-Ponce, 422 U.S. 873, 884-885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975); Christensen v. United States,, 104 U.S.App.D.C. 35, 36, 259 F.2d 192, 193 (1958).
3
We need not decide whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements. See Dunaway v. New York, 442 U.S. 200, 210 n. 12, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979); Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 882 (1968) (WHITE, J., concurring). The County Court Judge who convicted appellant was troubled by this question, as shown by the colloquy set out in the Appendix to this opinion.
| 01
|
443 U.S. 1
99 S.Ct. 2612
61 L.Ed.2d 321
Alan MACKEY, Registrar of Motor Vehicles of Massachusetts, Appellant,v.Donald E. MONTRYM, etc.
No. 77-69.
Argued Nov. 29, 1978.
Decided June 25, 1979.
Syllabus
A Massachusetts statute mandates suspension of a driver's license for refusing to take a breath-analysis test upon arrest for operating a motor vehicle while under the influence of intoxicating liquor. The Registrar of Motor Vehicles must order a 90-day suspension upon receipt of the police report of the licensee's refusal to take such test; the licensee, after surrendering his license, is entitled to an immediate hearing before the Registrar. Appellee, whose license was suspended under the statute, brought a class action in Federal District Court alleging that the Massachusetts statute was unconstitutional on its face and as applied in that it authorized the suspension of his license without affording him a presuspension hearing. The District Court held that appellee was entitled as a matter of due process to some sort of presuspension hearing, declared the statute unconstitutional on its face as violative of the Due Process Clause of the Fourteenth Amendment, and granted injunctive relief.
Held : The Massachusetts statute is not void on its face as violative of the Due Process Clause. Cf. Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172. Pp. 2617-2621.
(a) Suspension of a driver's license for statutorily defined cause implicates a property interest protected by the Due Process Clause. Resolution of the question of what process is due to protect against an erroneous deprivation of a protectible property interest requires consideration of (i) the nature and weight of the private interest affected by the official action challenged; (ii) the risk of an erroneous deprivation of such interest as a consequence of the summary procedures used; and (iii) the governmental function involved and state interests served by such procedures, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. Pp. 2617-2618.
(b) Here, neither the nature of the private interest involved—the licensee's interest in the continued possession and use of his license pending the outcome of the hearing due him—nor its weight compels a conclusion that the summary suspension procedures are unconstitutional, particularly in view of the postsuspension hearing immediately available and of the fact that the suspension is for a maximum of only 90 days. Pp. 2617-2618.
(c) Nor is the risk of error inherent in the presuspension procedure so substantial in itself as to require a departure from the "ordinary principle" that "something less than an evidentiary hearing is sufficient prior to adverse administrative action." Dixon v. Love, supra, 431 U.S., at 113, 97 S.Ct., at 1728. The risk of erroneous observation or deliberate misrepresentation by the reporting police officer of the facts forming the basis for the suspension is insubstantial. When there are disputed facts, the risk of error inherent in the statute's initial reliance on the reporting officer's representations is not so substantial in itself as to require the Commonwealth to stay its hand pending the outcome of any evidentiary hearing necessary to resolve questions of credibility or conflicts in the evidence. Pp. 2618-2620.
(d) Finally, the compelling interest in highway safety justifies Massachusetts in making a summary suspension effective pending the outcome of the available prompt postsuspension hearing. Such interest is substantially served by the summary suspension because (i) it acts as a deterrent to drunk driving; (ii) provides an inducement to take the breath-analysis test, permitting the Commonwealth to obtain a reliable form of evidence for use in subsequent criminal proceedings; and (iii) summarily removes from the road licensees arrested for drunk driving who refuse to take the test. Conversely, a presuspension hearing would substantially undermine the Commonwealth's interest in public safety by giving drivers an incentive to refuse the breath-analysis test and demand such a hearing as a dilatory tactic, which in turn would cause a sharp increase in the number of hearings sought and thus impose a substantial fiscal and administrative burden on the Commonwealth. Nor is it any answer to the Commonwealth's interest in public safety promoted by the summary sanction that such interest could be served as well in other ways. A state has the right to offer incentives for taking the breath-analysis test and, in exercising its police powers, is not required by the Due Process Clause to adopt an "all or nothing" approach to the acute safety hazard posed by drunk drivers. Pp. 2620-2621.
429 F.Supp. 393, reversed and remanded.
Mitchell J. Sikora, Jr., Boston, Mass., for appellant.
Robert W. Hagopian, Cambridge, Mass., for appellee.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question presented by this appeal is whether a Massachusetts statute that mandates suspension of a driver's license because of his refusal to take a breath-analysis test upon arrest for driving while under the influence of intoxicating liquor is void on its face as violative of the Due Process Clause of the Fourteenth Amendment.
2
Commonly known as the implied consent law, the Massachusetts statute provides:
3
"Whoever operates a motor vehicle upon any [public] way . . . shall be deemed to have consented to submit to a chemical test or analysis of his breath in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor. . . . If the person arrested refuses to submit to such test or analysis, after having been informed that his license . . . to operate motor vehicles . . . in the commonwealth shall be suspended for a period of ninety days for such refusal, no such test or analysis shall be made, but the police officer before whom such refusal was made shall immediately prepare a written report of such refusal[, which] . . . shall be endorsed by a third person who shall have witnessed such refusal[,] . . . shall be sworn to under the penalties of perjury by the police officer before whom such refusal was made[,] . . . shall set forth the grounds for the officer's belief that the person arrested had been driving a motor vehicle . . . while under the influence of intoxicating liquor, and shall state that such person had refused to submit to such chemical test or analysis which requested by such police officer to do so. Each such report shall be endorsed by the police chief . . . and shall be sent forthwith to the registrar. Upon receipt of such report, the registrar shall suspend any license or permit to operate motor vehicles issued to such person . . . for a period of ninety days." Mass.Gen.Laws Ann., ch. 90, § 24(1)(f) (West Supp.1979).
4
* While driving a vehicle in Acton, Mass., appellee Donald Montrym was involved in a collision about 8:15 p. m. on May 15, 1976. Upon arrival at the scene of the accident an Acton police officer observed, as he wrote in his official report, that Montrym was "glassy eyed," unsteady on his feet, slurring his speech, and emitting a strong alcoholic odor from his person. The officer arrested Montrym at 8:30 p. m. for operating his vehicle while under the influence of intoxicating liquor, driving to endanger, and failing to produce his motor vehicle registration upon request. Montrym was then taken to the Acton police station.
5
There, Montrym was asked to take a breath-analysis examination at 8:45 p. m. He refused to do so.1 Twenty minutes after refusing to take the test and shortly after consulting his lawyer, Montrym apparently sought to retract his prior refusal by asking the police to administer a breath-analysis test. The police declined to comply with Montrym's belated request. The statute leaves an officer no discretion once a breath-analysis test has been refused: "If the person arrested refuses to submit to such test or analysis, . . . the police officer before whom such refusal was made shall immediately prepare a written report of such refusal." § 24(1)(f) (emphasis added). The arresting officer completed a report of the events, including the refusal to take the test.
6
As mandated by the statute, the officer's report recited (a) the fact of Montrym's arrest for driving while under the influence of intoxicating liquor, (b) the grounds supporting that arrest, and (c) the fact of his refusal to take the breath-analysis examination. As required by the statute, the officer's report was sworn to under penalties of perjury, and endorsed by the arresting officer and another officer present when Montrym refused to take the test; it was counterendorsed by the chief of police. The report was then sent to the Massachusetts Registrar of Motor Vehicles pursuant to the statute.
7
On June 2, 1976, a state court dismissed the complaint brought against Montrym for driving while under the influence of intoxicating liquor.2 Dismissal apparently was predicated on the refusal of the police to administer a breath-analysis test at Montrym's request after he sought to retract his initial refusal to take the test. The dismissal order of the state court cryptically recites:
8
"Dismissed. Breathalyzer refused when requested within 1/2 hr of arrest at station. See affidavit & memorandum."
9
According to Montrym's affidavit incorporated by reference in the state court's dismissal order, he was visited by an attorney at 9:05 o'clock on the night of his arrest; and, after consulting with counsel, he requested a breath-analysis test. The police, however, refused the requests made by Montrym and his counsel between 9:07 and 10:07 p. m.
10
Montrym's attorney immediately advised the Registrar by letter of the dismissal of this charge and asked that the Registrar stay any suspension of Montrym's driver's license. Enclosed with the letter was a copy of Montrym's affidavit attesting to the officer's refusals to administer a breath-analysis test at his request. However, Montrym's attorney did not enclose a certified copy of the state court's order dismissing the charge.
11
The Registrar, who has no discretionary authority to stay a suspension mandated by the statute,3 formally suspended Montrym's license for 90 days on June 7, 1976. The suspension notice stated that it was effective upon its issuance and directed Montrym to return his license at once. It advised Montrym of his right to appeal the suspension.4
12
When Montrym received the suspension notice, his attorney requested an appeal on the question of whether Montrym had in fact refused a breath-analysis test within the meaning of the statute. Montrym surrendered his license by mail on June 8, 1976.
13
Under the Massachusetts statute, Montrym could have obtained an immediate hearing before the Registrar at any time after he had surrendered his license; that hearing would have resolved all questions as to whether grounds existed for the suspension.5 For reasons not explained, but presumably on advice of counsel, Montrym failed to exercise his right to a hearing before the Registrar; instead, he took an appeal to the Board of Appeal. On June 24, 1976, the Board of Appeal advised Montrym by letter that a hearing of his appeal would be held on July 6, 1976.
14
Four days later, Montrym's counsel made demand upon the Registrar by letter for the return of his driver's license. The letter reiterated Montrym's acquittal of the driving-under-the-influence charge, asserted that the state court's finding that the officer had refused to administer a breath-analysis test was binding on the Registrar, and declared that suspension of Montrym's license without first holding a hearing violated his right to due process. The letter did not contain a copy of the state court's dismissal order, but did threaten the Registrar with suit if the license were not returned immediately. Had Montrym's counsel enclosed a copy of the order dismissing the drunken-driving charge, the entire matter might well have been disposed of at that stage without more.
15
Thereafter, forgoing his administrative appeal scheduled for hearing on July 6, Montrym brought this action asking the convening of a three-judge United States District Court. The complaint alleges that § 24(1)(f) is unconstitutional on its face and as applied in that it authorized the suspension of Montrym's driver's license without affording him an opportunity for a presuspension hearing. Montrym sought a temporary restraining order enjoining the suspension of his license, compensatory and punitive damages, and declaratory and injunctive relief on behalf of all persons whose licenses had been suspended pursuant to the statute without a prior hearing.
16
On July 9, 1976, a single District Judge issued the temporary restraining order sought by Montrym and directed the Registrar to return Montrym's license pending further order of the court. Subsequently, a three-judge District Court was convened pursuant to 28 U.S.C. §§ 2281 (1970 ed.), 2284, and Montrym moved for partial summary judgment on stipulated facts.
17
With one judge dissenting, the three-judge District Court granted Montrym's motion. Relying principally on this Court's decision in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), the District Court concluded that Montrym was entitled as a matter of due process to some sort of a presuspension hearing before the Registrar to contest the allegation of his refusal to take the test. In a partial summary judgment order issued on April 4, and a final judgment order issued on April 12, the District Court certified the suit under Fed.Rule Civ.Proc. 23(b)(2) as a class action on behalf of all persons whose licenses to operate a motor vehicle had been suspended pursuant to Mass.Gen.Laws Ann., ch. 90, § 24(1)(f) (West Supp.1979). The court then declared the statute unconstitutional on its face as violative of the Due Process Clause, permanently enjoined the Registrar from further enforcing the statute, and directed him to return the driver's licenses of the plaintiff class members. Montrym v. Panora, 429 F.Supp. 393 (Mass.1977).
18
After taking timely appeals from the District Court's judgment orders, the Registrar moved the District Court for a stay and modification of its judgment, which motions were denied. After release of our opinion in Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), upholding the constitutionality of an Illinois statute authorizing the summary suspension of a driver's license prior to any evidentiary hearing, the Registrar moved for reconsideration of his motions for a stay and modification of judgment.
19
In a second opinion issued October 6, 1977, the District Court reasoned that Love was distinguishable on several grounds and denied the Registrar's motion to reconsider; the dissenting judge thought Love controlled. Montrym v. Panora, 438 F.Supp. 1157 (Mass.1977).
20
We noted probable jurisdiction following the submission of supplemental briefs by the parties. Sub nom. Panora v. Montrym, 435 U.S. 967, 98 S.Ct. 1603, 56 L.Ed.2d 58 (1978). We reverse.6
II
21
The Registrar concedes here that suspension of a driver's license for statutorily defined cause implicates a protectible property interest;7 accordingly, the only question presented by this appeal is what process is due to protect against an erroneous deprivation of that interest. Resolution of this inquiry requires consideration of a number of factors:
22
"first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
23
Applying this balancing test, the District Court concluded due process required an opportunity for hearing before suspension of a license. 429 F.Supp., at 398-400. Later, the court further held that our decision in Dixon v. Love, supra, did not control. Love was thought distinguishable because the potential for irreparable personal and economic hardship was regarded as greater under the Massachusetts statutory scheme than the Illinois scheme; the risk of error was deemed more substantial as well; and requiring a hearing before suspending a driver's license for refusing to take a breath-analysis test was believed not to offend the state interest in safe highways. 438 F.Supp., at 1159-1161.
24
We conclude that Love cannot be materially distinguished from the case before us. Both cases involve the constitutionality of a statutory scheme for administrative suspension of a driver's license for statutorily defined cause without a pre-suspension hearing. In each, the sole question presented is the appropriate timing of the legal process due a licensee. And, in both cases, that question must be determined by reference to the factors set forth in Eldridge.
A.
25
The first step in the balancing process mandated by Eldridge is identification of the nature and weight of the private interest affected by the official action challenged. Here, as in Love, the private interest affected is the granted license to operate a motor vehicle. More particularly, the driver's interest is in continued possession and use of his license pending the outcome of the hearing due him. As we recognized in Love, that interest is a substantial one, for the Commonwealth will not be able to make a driver whole for any personal inconvenience and economic hardship suffered by reason of any delay in redressing an erroneous suspension through postsuspension review procedures. 431 U.S., at 113, 97 S.Ct., at 1728.
26
But, however substantial Montrym's property interest may be, it is surely no more substantial than the interest involved in Love. The private interest involved here actually is less substantial, for the Massachusetts statute authorizes suspension for a maximum of only 90 days, while the Illinois scheme permitted suspension for as long as a year and even allowed for the possibility of indefinite revocation of a license.
27
To be sure, as the District Court observed, the Illinois statute in Love contained provisions for hardship relief unavailable under the Massachusetts statute. Though we adverted to the existence of such provisions in Love, they were in no sense the "controlling" factor in our decision that the District Court believed them to be. 438 F.Supp., at 1159. Hardship relief was available under the Illinois scheme only after a driver had been suspended and had demonstrated his eligibility for such relief. See Dixon v. Love, 431 U.S., at 114 n. 10, 97 S.Ct., at 1728 n. 10. The bearing such provisions had in Love stemmed from the delay involved in providing a postsuspension hearing. Here, unlike the situation in Love, a postsuspension hearing is available immediately upon a driver's suspension and may be initiated by him simply by walking into one of the Registrar's local offices and requesting a hearing. The Love statute, in contrast, did not mandate that a date be set for a postsuspension hearing until 20 days after a written request for such a hearing was received from the affected driver. Id., at 109-110, 97 S.Ct., at 1726.
28
The duration of any potentially wrongful deprivation of a property interest is an important factor in assessing the impact of official action on the private interest involved. Fusari v. Steinberg, 419 U.S. 379, 389, 95 S.Ct. 533, 539, 42 L.Ed.2d 521 (1975). The District Court's failure to consider the relative length of the suspension periods involved in Love and the case at bar, as well as the relative timeliness of the postsuspension review available to a suspended driver, was erroneous. Neither the nature nor the weight of the private interest involved in this case compels a result contrary to that reached in Love.
B
29
Because a primary function of legal process is to minimize the risk of erroneous decisions. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12-13, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979); Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979), the second stage of the Eldridge inquiry requires consideration of the likelihood of an erroneous deprivation of the private interest involved as a consequence of the procedures used. And, although this aspect of the Eldridge test further requires an assessment of the relative reliability of the procedures used and the substitute procedures sought, the Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectible "property" or "liberty" interest be so comprehensive as to preclude any possibility of error. The Due Process Clause simply does not mandate that all governmental decisionmaking comply with standards that assure perfect, error-free determinations. Greenholtz v. Nebraska Penal Inmates, supra, 442 U.S., at 7, 99 S.Ct., at 2103. Thus, even though our legal tradition regards the adversary process as the best means of ascertaining truth and minimizing the risk of error, the "ordinary principle" established by our prior decisions is that "something less than an evidentiary hearing is sufficient prior to adverse administrative action." Dixon v. Love, supra, 431 U.S., at 113, 97 S.Ct., at 1728. And, when prompt postdeprivation review is available for correction of administrative error, we have generally required no more than that the predeprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be. See, e. g., Barry v. Barchi, 443 U.S. 55, 64-65, 99 S.Ct. 2642, 2649, 61 L.Ed.2d 365 (1979); Mathews v. Eldridge, 424 U.S., at 334, 96 S.Ct., at 902.
30
As was the case in Love, the predicates for a driver's suspension under the Massachusetts scheme are objective facts either within the personal knowledge of an impartial government official or readily ascertainable by him. Cause arises for license suspension if the driver has been arrested for driving while under the influence of an intoxicant, probable cause exists for arrest, and the driver refuses to take a breath-analysis test. The facts of the arrest and the driver's refusal will inevitably be within the personal knowledge of the reporting officer; indeed, Massachusetts requires that the driver's refusal be witnessed by two officers. At the very least, the arresting officer ordinarily will have provided the driver with an informal opportunity to tell his side of the story and, as here, will have had the opportunity to observe the driver's condition and behavior before effecting any arrest.
31
The District Court, in holding that the Due Process Clause mandates that an opportunity for a further hearing before the Registrar precede a driver's suspension, overstated the risk of error inherent in the statute's initial reliance on the corroborated affidavit of a law enforcement officer. The officer whose report of refusal triggers a driver's suspension is a trained observer and investigator. He is, by reason of his training and experience, well suited for the role the statute accords him in the presuspension process. And, as he is personally subject to civil liability for an unlawful arrest and to criminal penalties for willful misrepresentation of the facts, he has every incentive to ascertain accurately and truthfully report the facts. The specific dictates of due process must be shaped by "the risk of error inherent in the truthfinding process as applied to the generality of cases" rather than the "rare exceptions." Mathews v. Eldridge, supra, at 344, 96 S.Ct., at 907. And, the risk of erroneous observation or deliberate misrepresentation of the facts by the reporting officer in the ordinary case seems insubstantial.
32
Moreover, as this case illustrates, there will rarely be any genuine dispute as to the historical facts providing cause for a suspension. It is significant that Montrym does not dispute that he was arrested, or that probable cause existed for his arrest, or that he initially refused to take the breath-analysis test at the arresting officer's request. The allegedly "factual" dispute that he claims a constitutional right to raise and have determined by the Registrar prior to his suspension really presents questions of law; namely, whether the state court's subsequent finding that the police later refused to administer a breath-analysis test at Montrym's request is binding on the Registrar as a matter of collateral estoppel; and, if so, whether that finding undermines the validity of Montrym's suspension, which may well be justified under the statute solely on the basis of Montrym's initial refusal to take the breath-analysis test and notwithstanding the officer's subsequent refusal to honor Montrym's belated request for the test.8 The Commonwealth must have the authority, if it is to protect people from drunken drivers, to require that the breath-analysis test record the alcoholic content of the bloodstream at the earliest possible moment.
33
Finally, even when disputes as to the historical facts do arise, we are not persuaded that the risk of error inherent in the statute's initial reliance on the representations of the reporting officer is so substantial in itself as to require that the Commonwealth stay its hand pending the outcome of any evidentiary hearing necessary to resolve questions of credibility or conflicts in the evidence. Cf. Barry v. Barchi, 443 U.S. at 64-65, 99 S.Ct., at 2649. All that Montrym seeks was available to him immediately upon his suspension, and we believe that the "same day" hearing before the Registrar available under § 24(1)(g) provides an appropriately timely opportunity for the licensee to tell his side of the story to the Registrar, to obtain correction of clerical errors, and to seek prompt resolution of any factual disputes he raises as to the accuracy of the officer's report of refusal.
34
Nor would the avowedly "nonevidentiary" presuspension hearing contemplated by the District Court substantially enhance the reliability of the presuspension process. Clerical errors and deficiencies in the officer's report of refusal, of course, could be called to the Registrar's attention if the driver were provided with an opportunity to respond to the report in writing prior to suspension. But if such errors and deficiencies are genuinely material they already will have been noted by the Registrar in the ordinary course of his review of the report. Just as the Registrar has no power to stay a suspension upon receipt of a report of refusal that complies on its face with statutory requirements, he has no power to suspend a license if the report is materially defective. Necessarily, then, the Registrar must submit the officer's report to his independent scrutiny. This independent review of the report of refusal by a detached public officer should suffice in the ordinary case to minimize the only type of error that could be corrected by something less than an evidentiary hearing.
35
The only other purpose that might be served by an opportunity to respond to the report of refusal prior to a driver's suspension would be alerting the Registrar to the existence of factual disputes between the driver and the reporting officer. This would be an exercise in futility, for the Registrar has no discretion to stay a suspension pending the outcome of an evidentiary hearing. And, it simply begs the question of a driver's right to a presuspension evidentiary hearing to suggest, as did the District Court, that the Registrar be given such discretion. The Massachusetts Legislature has already made the discretionary determination that the District Court apparently would have the Registrar make on a case-by-case basis. It has determined that the Registrar, who is further removed in time and place from the operative facts than the reporting officer, should treat a report of refusal that complies on its face with the statutory requirements as presumptively accurate notwithstanding any factual disputes raised by a driver. Simply put, it has determined that the Registrar is not in a position to make an informed probable-cause determination or exercise of discretion prior to an evidentiary hearing. We cannot say the legislature's judgment in this matter is irrational.
36
In summary, we conclude here, as in Love, that the risk of error inherent in the presuspension procedures chosen by the legislature is not so substantial in itself as to require us to depart from the "ordinary principle" that "something less than an evidentiary hearing is sufficient prior to adverse administrative action." 431 U.S., at 113, 97 S.Ct., at 1728. We fail to see how reliability would be materially enhanced by mandating the presuspension "hearing" deemed necessary by the District Court.
C
37
The third leg of the Eldridge balancing test requires us to identify the governmental function involved; also, to weigh in the balance the state interests served by the summary procedures used, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought.
38
Here, as in Love, the statute involved was enacted in aid of the Commonwealth's police function for the purpose of protecting the safety of its people. As we observed in Love, the paramount interest the Commonwealth has in preserving the safety of its public highways, standing alone, fully distinguishes this case from Bell v. Burson, 402 U.S., at 539, 91 S.Ct., at 1589, on which Montrym and the District Court place principal reliance. See 431 U.S., at 114-115, 97 S.Ct., at 1728, 1729. We have traditionally accorded the states great leeway in adopting summary procedures to protect public health and safety. States surely have at least as much interest in removing drunken drivers from their highways as in summarily seizing mislabeled drugs or destroying spoiled foodstuffs.9 E.g., Ewing v. Myitinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); North American Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908).
39
The Commonwealth's interest in public safety is substantially served by the summary suspension of those who refuse in several ways to take a breath-analysis test upon arrest. First, the very existence of the summary sanction of the statute serves as a deterrent to drunken driving. Second, it provides strong inducement to take the breath-analysis test and thus effectuates the Commonwealth's interest in obtaining reliable and relevant evidence for use in subsequent criminal proceedings. Third, in promptly removing such drivers from the road, the summary sanction of the statute contributes to the safety of public highways.
40
The summary and automatic character of the suspension sanction available under the statute is critical to attainment of these objectives. A presuspension hearing would substantially undermine the state interest in public safety by giving drivers significant incentive to refuse the breath-analysis test and demand a presuspension hearing as a dilatory tactic. Moreover, the incentive to delay arising from the availability of a presuspension hearing would generate a sharp increase in the number of hearings sought and therefore impose a substantial fiscal and administrative burden on the Commonwealth. Dixon v. Love, supra, 431 U.S., at 114, 97 S.Ct., at 1728.
41
Nor is it any answer to the Commonwealth's interest in public safety that its interest could be served as well in other ways. The fact that the Commonwealth, for policy reasons of its own, elects not to summarily suspend those drivers who do take the breath-analysis test does not, as the District Court erroneously suggested, in any way undermine the Commonwealth's strong interest in summarily removing from the road those who refuse to take the test. A state plainly has the right to offer incentives for taking a test that provides the most reliable form of evidence of intoxication for use in subsequent proceedings. Indeed, in many cases, the test results could lead to prompt release of the driver with no charge being made on the "drunken driving" issue. And, in exercising its police powers, the Commonwealth is not required by the Due Process Clause to adopt an "all or nothing" approach to the acute safety hazards posed by drunken drivers.
42
We conclude, as we did in Love, that the compelling interest in highway safety justifies the Commonwealth in making a summary suspension effective pending the outcome of the prompt postsuspension hearing available.
43
Accordingly, the judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
44
It is so ordered.
45
Mr. Justice STEWART, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting.
46
The question in this case, simply put, is whether a person who is subject to losing his driver's license for three months as a penalty for allegedly refusing a demand to take a breath-analysis test is constitutionally entitled to some sort of hearing before his license is taken away. In Massachusetts, such suspensions are effected by the Registrar of Motor Vehicles solely upon the strength of a policeman's affidavit recounting his version of an encounter between the police and the motorist. Mass.Gen.Laws Ann., ch. 90, § 24(1)(f), (West Supp.1979). The driver is afforded no opportunity, before this deprivation occurs, to present his side of the story in a forum other than a police station. He is given no notice of any entitlement he might have to a "same day" hearing before the Registrar. The suspension penalty itself is concededly imposed not as an emergency measure to remove unsafe drivers from the roads, but as a sanction to induce drivers to submit to breath-analysis tests. In short, the critical fact that triggers the suspension is noncooperation with the police, not drunken driving. In my view, the most elemental principles of due process forbid a State from extracting this penalty without first affording the driver an opportunity to be heard.
A.
47
Our decisions in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, and Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172, made clear that a person's interest in his driver's license is "property" that a State may not take away without satisfying the requirements of the due process guarantee of the Fourteenth Amendment. And the constitutional guarantee of procedural due process has always been understood to embody a presumptive requirement of notice and a meaningful opportunity to be heard before the State acts finally to deprive a person of his property. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865; Fuentes v. Shevin, 407 U.S. 67, 82, 92 S.Ct. 1983, 1995, 32 L.Ed.2d 556; Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113; Bell v. Burson, supra, 402 U.S., at 542, 91 S.Ct., at 1591; Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 16, 19, 98 S.Ct. 1554, 1563, 1565, 56 L.Ed.2d 30.
48
This settled principle serves to ensure that the person threatened with loss has an opportunity to present his side of the story to a neutral decisionmaker "at a time when the deprivation can still be prevented." Fuentes v. Shevin, supra, 407 U.S., at 81-82, 92 S.Ct., at 1994. It protects not simply against the risk of an erroneous decision. It also protects a "vulnerable citizenry from the overbearing concern for efficiency . . . that may characterize praiseworthy government officials no less . . . than mediocre ones." Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551. Cf. Memphis Light, Gas & Water Div. v. Craft, supra, 436 U.S., at 21 n. 28, 98 S.Ct., at 1566 n. 28. The very act of dealing with what purports to be an "individual case" without first affording the person involved the protection of a hearing offends the concept of basic fairness that underlies the constitutional due process guarantee.
49
When a deprivation is irreversible—as is the case with a license suspension that can at best be shortened but cannot be undone—the requirement of some kind of hearing before a final deprivation takes effect is all the more important. Thus, in Bell v. Burson, the Court deemed it fundamental that "except in emergency situations" the State must afford a prior hearing before a driver's license termination becomes effective. 402 U.S., at 542, 91 S.Ct., at 1591.1 In Bell, the State did provide a presuspension administrative hearing, but the Court held that the State could not, while purporting to condition a suspension in part on fault, exclude the element of fault from consideration in that hearing. The dimensions of a prior hearing may, of course, vary depending upon the nature of the case, the interests affected, and the prompt availability of adequate postdeprivation procedures. Boddie v. Connecticut, supra; Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18. But when adjudicative facts are involved, when no valid governmental interest would demonstrably be disserved by delay, and when full retroactive relief cannot be provided, an after-the-fact evidentiary hearing on a critical issue is not constitutionally sufficient. CompareMathews v. Eldridge, supra, with Bell v. Burson, supra.
50
The case of Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172, is not, as the Court seems to suggest, to the contrary. At issue in Love was a statute permitting the summary revocation of the license of a repeat traffic offender on the strength of a cumulative record of traffic convictions and suspensions. The Court in Love stressed that the appellee had not contested the factual basis for his license revocation and had not contested the procedures followed in securing his previous convictions. Instead, the Love appellee had merely asserted a right to appear in person in advance to ask for leniency. Id., 431 U.S., at 114, 97 S.Ct., at 1728. Under these circumstances, the Court held that summary suspension was permissible, for the "appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the . . . decision was based." id., at 113, 97 S.Ct., at 1728 (emphasis added). Love, then, involved an instance in which a revocation followed virtually automatically from the fact of duly obtained convictions for a stated number of traffic offenses. It established no broad exception to the normal presumption in favor of a prior hearing. See Memphis Light, Gas & Water Div. v. Craft, supra, 436 U.S., at 19 n. 24, 98 S.Ct., at 1565 n. 24.
B
51
The Court likens this driver's license revocation to the suspension at issue in Love, but in my view that analogy simply cannot be drawn. The Massachusetts breath-analysis suspension statute, in clear contrast to the Love statute, affords the driver no prior hearing of any kind to contest the critical factual allegations upon which the suspension is based. Those allegations can hardly be equated with routinely kept records of serious traffic offense convictions.
52
A breath-analysis suspension is premised upon three factors: reasonable grounds for an arrest for driving while intoxicated; a proper request by the officer that the driver submit to a breath-analysis test; and a refusal to do so by the driver. Mass.Gen.Laws Ann., ch. 90, § 24(1)(f) (West Supp.1979). The appellee in this case was indeed arrested, after a collision in which his car was struck in the rear by a motorcycle, for driving while intoxicated. Moreover, he admitted that he initially refused to take a breath-analysis test. But he consistently contended that he was not informed of the sanction, as is required by § 24(1)(f), and he vigorously disputed the accuracy of the police affidavit that said he was so informed. His further claim that he requested a test as soon as he learned by inadvertence of the sanction, and that the police then refused to administer the test—was apparently accepted by the Massachusetts judge who subsequently dismissed the drunken-driving charge against him. Thus, there was clearly a significant factual dispute in this case.
53
That dispute, as in Bell v. Burson, concerned a critical element of the statutory basis for a suspension—in this instance whether there was indeed a refusal to take a breath-analysis test after a proper demand. The Court suggests nonetheless that the "fact" of a informed refusal, as well as the other statutory factual bases for a suspension, is somehow so routine, objective, and reliable as to be equivalent to routinely maintained official records of criminal convictions. I find this equation highly dubious. Initial deprivations of liberty based upon ex parte probable-cause determinations by the police are, of course, not unusual, Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54; ex parte probable-cause determinations by neutral magistrates relying upon properly corroborated police affidavits to determine whether arrest or search warrants should issue are likewise commonly made. E. g., Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. But these practices, to the extent that they permit ex parte deprivations of liberty or property, are clearly necessitated by the exigencies of law enforcement. They supply no support for the proposition that a police affidavit can provide a constitutionally sufficient basis for the deprivation of property in a civil proceeding, when there is ample time to give the owner an opportunity to be heard in an impartial forum before an impartial decisionmaker.
54
Moreover, there is a vast difference between the record of duly adjudicated convictions at issue in Love and the historical facts of the encounter between the police and a motorist that form the basis for the driver's license suspension in the present case. To be sure, these relatively uncomplicated facts are unquestionably within "the personal knowledge of the reporting officer." Ante, at 2619. But they are also within the knowledge of the driver. This Court has yet to hold that the police version of a disputed encounter between the police and a private citizen is inevitably accurate and reliable.2
55
I am not persuaded that the relative infrequency with which a driver may be able successfully to show that he did not refuse to take a breath-analysis test should excuse the State from the constitutional need to afford a prior hearing to any person who wishes to make such a challenge. The question whether or not there was such a refusal is one classically subject to adjudicative factfinding, and one that plainly involves issues of credibility and veracity. Mathews v. Eldridge, 424 U.S., at 343-344, 96 S.Ct., at 907. The driver's "opportunity to tell his side of the story" to "the arresting officer," ante, at 2619, surely cannot seriously be deemed a "meaningful opportunity to be heard" in the due process sense. There is simply no escaping the fact that the first hearing Massachusetts supplies on a breath-analysis suspension comes after the license of the driver has been taken away. And it is clear that the suspension itself effects a final deprivation of property that no subsequent proceeding can restore. Cf. Mathews v. Eldridge, supra, 424 U.S., at 340, 96 S.Ct., at 905.3
56
The State has urged, and the Court seems to agree, ante, at 2620-2621, that summary procedures are nevertheless required to further the State's interest in protecting the public from unsafe drivers. It cannot be doubted that the interest in "removing drunken drivers from the road" is significant. But the precedents supporting ex parte action have not turned simply on the significance of the governmental interest asserted. To the contrary, they have relied upon the extent to which that interest will be frustrated by the delay necessitated by a prior hearing. E. g., North American Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed.2d 195 (allegedly spoiled food), and cases cited in n.1, supra. The breath-analysis test is plainly not designed to remove an irresponsible driver from the road as swiftly as possible. For if a motorist submits to the test and fails it, he keeps his driver's license—a result wholly at odds with any notion that summary suspension upon refusal to take the test serves an emergency protective purpose. A suspension for refusal to take the test is obviously premised not on intoxication, but on noncooperation with the police.
57
The State's basic justification for its summary suspension scheme, as the Court recognizes, ante, at 2621, lies in the unremarkable idea that a prior hearing might give drivers a significant incentive to refuse to take the test. Related to this argument is the suggestion that the availability of a prior hearing might encourage a driver to demand such a hearing as a "dilatory" tactic, and thus might increase administrative costs by generating a "sharp increase in the number of hearings." Ante, at 2621. In sum, the State defends the ex parte suspension as essential to enlist the cooperation of drivers and also as a cost-saving device. I cannot accept either argument.
58
The 3-month driver's license suspension alone is obviously sufficient to promote the widespread use of the breath-analysis test, if drivers are informed not only of this sanction for a refusal but also realize that cooperation may conclude the entire case in their favor. Moreover, as is generally the case when a person's ability to protect his interests will ultimately depend upon a swearing contest with a law enforcement officer, the deck is already stacked heavily against the motorist under this statute. This point will not be lost upon the motorist. The State's position boils down to the thesis that the failure to afford an opportunity for a prior hearing can itself be part of the stacked deck. But there is no room for this type of argument in our constitutional system. A State is simply not free to manipulate Fourteenth Amendment procedural rights to coerce a person into compliance with its substantive rules, however important it may consider those rules to be. The argument that a prior hearing might encourage "dilatory" tactics on the part of the motorist, true as it might be to human nature, is likewise wholly inconsistent with the simple Fourteenth Amendment guarantee that every "person" is entitled to be heard, before he may be deprived of his property by the State. Finally, the all too familiar cost-saving arguments raised by the State have regularly been made here and have as regularly been rejected as a justification for dispensing with the guarantees of the Fourteenth Amendment. For if costs were the criterion, the basic procedural protections of the Fourteenth Amendment could be read out of the Constitution. Happily, the Constitution recognizes higher values than "speed and efficiency." Stanley v. Illinois, supra, 405 U.S., at 656, 92 S.Ct., at 1215.
C
59
The Court's holding that the Massachusetts breath-analysis suspension scheme satisfies the Constitution seems to be premised in large part on the assumption that a prompt postsuspension hearing is available. But even assuming that such an after-the-fact procedure would be constitutionally sufficient in this situation, the so-called "prompt postsuspension" remedy afforded by Massachusetts is, so far as I can tell, largely fictional. First, the State does not notify the driver of the availability of any such remedy.4 And without notice, the remedy, even if it exists, is hardly a meaningful safeguard. Only last Term we reaffirmed that "reasonable" notice of a procedural right is itself integral to due process. Memphis Light, Gas & Water Div. v. Craft, 436 U.S., at 13-15, 98 S.Ct., at 1562-1563. This inherent principle has long been established, see Mullane v. Central Hanover Trust Co., 339 U.S., at 314, 70 S.Ct., at 657, and Massachusetts clearly has not honored it.
60
Quite apart from the failure of Massachusetts to inform the driver of any entitlement to a "walk-in" hearing, that remedy cannot—as the Court recognizes—provide immediate relief to the driver who contests the police report of his refusal to take a test. To resolve such a factual dispute, a "meaningful hearing" before an impartial decisionmaker would require the presence of the officer who filed the report, the attesting officer, and any witnesses the driver might wish to call. But the State has provided no mechanism for scheduling any such immediate postsuspension evidentiary hearing.5 The fact is that the "walk-in" procedure provides little more than a right to request the scheduling of a later hearing. In the meantime, the license suspension continues, for the Registrar is without statutory power to stay a suspension founded upon a technically correct affidavit pending the outcome of an evidentiary hearing.
61
Finally, the Registrar—according to the Court's own description of the Massachusetts scheme—quite possibly does not have authority to resolve even the most basic questions that might be raised about the validity of a breath-analysis suspension. Ante, at 2619 n. 8. And, if the Registrar has no final authority to resolve the "legal" question the Court perceives in this case,6 it can hardly be concluded that there exists the prompt postsuspension relief that is said to excuse the State from any need to provide a prior hearing. For, if a prompt postsuspension hearing is even to be eligible for consideration as minimally adequate to satisfy the demands of procedural due process, it must provide for an impartial decisionmaker with authority to resolve the basic dispute and to provide prompt relief. See Memphis Light, Gas & Water Div. v. Craft, supra, 436 U.S., at 18, 98 S.Ct., at 1564.7
D
62
The Court has never subscribed to the general view "that a wrong may be done if it can be undone," Stanley v. Illinois, 405 U.S., at 647, 92 S.Ct., at 1210. We should, in my opinion, be even less enchanted by the proposition that due process is satisfied by delay when the wrong cannot be undone at all, but at most can be limited in duration. Even a day's loss of a driver's license can inflict grave injury upon a person who depends upon an automobile for continued employment in his job.
63
I do not mean to minimize the importance of breath-analysis testing as part of a state effort to identify, prosecute, and rehabilitate the alcohol-ridden motorist. I cannot, however, agree that the summary suspension of a driver's license authorized by this Massachusetts law is a constitutionally permissible method to further those objectives. For, on the sole basis of a policeman's affidavit, the license is summarily suspended, and it is suspended not for drunken driving but only for failure to cooperate with the police. The State—in my view—has totally failed to demonstrate that this summary suspension falls within any recognized exception to the established protections of the Fourteenth Amendment. Accordingly, I respectfully dissent.
1
Montrym does not deny having refused the test; he claims that he was not advised of the mandatory 90-day suspension penalty prior to his refusal, as required by the statute; however, the officer's report of refusal asserts that Montrym was given the required prior warning.
2
Montrym was also acquitted on the driving-to-endanger charge but was found guilty on the registration charge and fined $15.
3
It provides in relevant part:
"Upon receipt of such report [or refusal], the registrar shall suspend any license . . . issued to such person . . . for a period of ninety days." Mass.Gen.Laws Ann., ch. 90, § 24(1)(f) (West Supp.1979) (emphasis added).
4
Massachusetts Gen.Laws Ann., ch. 90, § 28 (West 1969), provides that any person aggrieved by a ruling of the Registrar may appeal such ruling to the Board of Appeal, which may, after a hearing, order such ruling to be affirmed, modified, or annulled. However, no such appeal shall operate to stay any ruling of the Registrar. In turn, the Board's decision is subject to judicial review. Mass.Gen.Laws Ann., ch. 30A, § 14 (West 1979).
5
Massachusetts Gen.Laws Ann., ch. 90, § 24(1)(g) (West 1969) provides:
"Any person whose license, permit or right to operate has been suspended under paragraph (f ) shall be entitled to a hearing before the registrar which shall be limited to the following issues: (1) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any [public] way . . . , (2) was such person placed under arrest, and (3) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall reinstate such license, permit or right to operate."
As stipulated by the parties, the § 24(1)(g) hearing is available the moment the driver surrenders his license. At the hearing, the suspended driver may be represented by counsel. Upon request, a hearing officer will examine the report of refusal and return the driver's license immediately if the report does not comply with the requirements of § 24(1)(f). If the report complies with those requirements, the burden is on the driver to show either that he was not arrested, that there was no probable cause for arrest, or that he did not refuse to take the breath-analysis test. The hearing may be adjourned at the request of the driver or sua sponte by the hearing officer in order to permit the attendance of witnesses or for the gathering of relevant evidence. Witnesses at the hearing are subject to cross-examination by the driver or his attorney, and he may appeal an adverse decision of the Registrar to the Board of Appeal pursuant to § 28.
The Registrar has represented to the Court that a driver can obtain a decision from the hearing officer within one or two days following the driver's receipt of the suspension notice. Montrym asserts that greater delay will occur if the driver raises factual issues requiring the taking of evidence. But, even under his more pessimistic view, which takes into account the possibility of intervening weekends, the driver will obtain a decision from the hearing officer within 7 to 10 days.
6
Because the District Court held the statute unconstitutional on its face and granted class-wide relief, it never reached the "as applied" challenge raised in Montrym's complaint; nor do we. The validity of that challenge, and the resolution of any contested factual issues relevant to it, must be determined by the District Court on remand in light of our opinion.
Also, the question of whether the Commonwealth is constitutionally required to give notice of the § 24(1)(g) hearing procedure independent of the notice given by the statute itself was neither framed by the pleadings nor decided by the District Court; it is not properly before us notwithstanding the observations of the dissenting opinion on this issue. See post, at 2626.
7
That the Due Process Clause applies to a state's suspension or revocation of a driver's license is clear from our decisions in Dixon v. Love, 431 U.S. 105, 112, 97 S.Ct. 1723, 1727, 52 L.Ed.2d 172 (1977), and Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971).
8
An evidentiary hearing into the historical facts would be ill suited for resolution of such questions of law. Indeed, it is not clear whether the Registrar even has the plenary authority to resolve such questions. Ultimately, any legal questions must be resolved finally by the Massachusetts courts on judicial review of the decision of the Board of Appeal after any appeal taken from the ruling of the Registrar. See n. 4, supra.
9
Drunken drivers accounted for 283 of the 884 traffic fatalities in Massachusetts during 1975 alone and must have been responsible for countless other injuries to persons and property. App. 31. More people were killed in alcohol-related traffic accidents in a year in this one State than were killed in the tragic DC-10 crash at O'Hare Airport in May 1979. Traffic deaths commonly exceed 50,000 annually in the United States, and approximately one-half of these fatalities are alcohol related. See U.S. Dept. of Transportation, 1977 Highway Safety Act Report App. A-9 (Table A-1); U.S. Dept. of Health, Education, and Welfare, Third Special Report on Alcohol and Health 61 (1978).
1
Emergency situations have generally been defined as those in which swift action is necessary to protect public health, safety, revenue or the integrity of public institutions. See, e. g., Central Union Trust Co. v. Garvan, 254 U.S. 554, 41 S.Ct. 214, 65 L.Ed. 403 (emergency action during wartime); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (seizure of misbranded drugs); North American Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (seizure of allegedly diseased poultry); Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (effective tax collection); Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (emergency bank management); cf. Goss v. Lopez, 419 U.S. 565, 582, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (to protect a public institution from a continuing danger). See generally J. Freedman, Crisis and Legitimacy: The Administrative Process and American Government (1978); L. Tribe, American Constitutional Law § 10-14 (1978).
2
Contrary to the Court's suggestion, the case of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, provides no precedential support for the ex parte suspension procedure followed by Massachusetts. The disability-benefit termination procedures upheld in Mathews did not involve an "ex parte " deprivation of property. To the contrary, the Court in Mathews stressed that the recipient had been afforded an opportunity to make extensive written submissions to the decisionmaker before any initial termination decision was made. Id., at 344, 345, 96 S.Ct., at 907, 908. Given the amenability of the critical issue to written presentation and the clear availability of a prompt posttermination evidentiary hearing, this prior opportunity to be heard—albeit in writing—was deemed constitutionally sufficient.
3
The Court stresses that a presuspension evidentiary hearing would be futile since the Registrar has no discretion to stay a suspension pending that hearing. The Court also emphasizes that the decision not to give the Registrar such discretion reflects a "rational" legislative choice. Ante, at 2620. I fail to see how these observations answer the procedural due process claim in this case. The choice that the Massachusetts Legislature has made is merely a part of its decision to dispense with a presuspension hearing that is here under constitutional challenge. To be sure, that choice might well be "rational" in the equal protection sense. But the "rationality" of a legislative decision to dispense with the procedural safeguards that constitutionally must precede state deprivation of a person's interest has never been deemed controlling. The Court may, of course, be suggesting that the legislature has established a presumption that a driver who refuses a breath-analysis test is per se an unsafe driver. But the State has not made this argument, and indeed it would be a strange one in the context of this statute. For the state law expressly provides that an alleged refusal to take a breath-analysis test is not admissible as evidence in a prosecution for driving while intoxicated. Mass.Gen.Laws Ann., ch. 90, § 24(1)(e) (West Supp.1979).
4
To be sure, the statute states that a driver is entitled to a limited hearing before the Registrar, see Mass.Gen.Laws Ann., ch. 90, § 24(1)(g) (West 1969), and the parties have stipulated that under Massachusetts practice the driver may schedule this hearing by "walking in" to a Registry Office. The only postdeprivation remedy mentioned in the suspension notice sent to the driver, however, is a right to take "an appeal" within 10 days to the Board of Appeal on Motor Vehicle Liability. The unexplained reason for the appellee's failure to exercise his right to the putative "walk-in" hearing, ante, at 2615-2616, thus may lie in the failure of the State to notify him of any such right.
5
An obvious mechanism is suggested by the procedures generally followed for routine traffic offenses. The driver is immediately notified by summons of his right to request a judicial hearing. If a request is made, a date is set, the driver and the police are notified, and the question of liability is then resolved in a single proceeding.
6
The legal question identified by the Court is whether a delayed offer to cooperate on the driver's part should excuse the suspension penalty. In this case, that question presumably would not arise if the delay had in fact been attributable to the failure on the part of the police to comply with the statutory requirement that the driver be informed of the sanction. If, as the appellee has claimed, this is what happened, the question would be whether a refusal after an improper demand is legally sufficient to justify a suspension.
7
Indeed, under the Court's description of the postsuspension relief available under the statute, it appears that the appellee was by no means "assured a prompt proceeding and a prompt disposition of the outstanding issues between [him] and the State." Barry v. Barchi, 443 U.S. 55, 66, 99 S.Ct. 2642, 2650, 61 L.Ed.2d 365 (emphasis added). This precise constitutional infirmity has led the Court in Barry v. Barchi, to sustain the Fourteenth Amendment claim of a horse trainer whose trainer's racing license was summarily suspended upon a probable-cause showing that his horse was drugged before a race. Here, as in Barchi, the appellee was not notified of any right to prompt postsuspension relief. Here, as in Barchi, the hearing available upon "appeal" from the administrative summary suspension, see Mass.Gen.Laws Ann., ch. 90, § 28 (West 1969), appears to be the only meaningful postsuspension evidentiary hearing afforded. As in Barchi, the statute involved here does not specify when this review must begin, does not require that the suspension be stayed during review, and does not require the Board of Appeal to reach a prompt decision. Further, in view of the Registrar's apparent lack of authority to make any definitive determination of the issues in any evidentiary hearing that the driver might schedule by "walking in," there seems to be no "assurance" under this statute that the driver will receive prompt postsuspension relief from a "trial level" hearing examiner. In sum, under the principle established in Barchi, the District Court upon remand for consideration of this appellee's "as applied" challenge to his suspension, ante, at 2617 n. 6, will be required to sustain that challenge, unless the courts find that the appellee was in fact given advance notice of his right to an immediate postsuspension hearing and was "assured" under the statute of an immediate and definitive resolution of the contested issues in his case.
| 34
|
443 U.S. 76
99 S.Ct. 2655
61 L.Ed.2d 382
Joseph A. CALIFANO, Secretary of Health, Education, and Welfare, Appellant,v.Cindy WESTCOTT et al., John D. PRATT, etc., Appellant, v. Cindy WESTCOTT et al.
Nos. 78-437, 78-689.
Argued April 16, 1979.
Decided June 25, 1979.
Syllabus
Section 407 of the Social Security Act, which governs the Aid to Families with Dependent Children, Unemployed Father (AFDC-UF) program, provides benefits to families whose dependent children have been deprived of parental support because of the unemployment of the father, but does not provide such benefits when the mother becomes unemployed. This class action was instituted in Federal District Court against the Secretary of the Department of Health, Education, and Welfare (Secretary) and the Commissioner of the Massachusetts Department of Public Welfare (Commissioner) by appellees, two couples (each having an infant son) who satisfy all the requirements for AFDC-UF benefits except for the requirement that the parent who is "unemployed" within the meaning of the Act and applicable regulations be the father. Appellees alleged that § 407 and its implementing regulations discriminate on the basis of gender in violation of the Fifth and Fourteenth Amendments, and sought declaratory and injunctive relief. The District Court declared § 407 unconstitutional insofar as it establishes a classification which discriminates solely on the basis of sex, and determined that extension of the AFDC-UF program to all families with needy children where either parent is unemployed, rather than nullification of the program, was the proper remedial course. Subsequently, the District Court declined to modify its order so as to permit the Commissioner to pay benefits only to those families where needy children have been deprived of parental support by the unemployment of the family's "principal wage-earner." The Secretary challenges only the holding on the constitutionality of § 407, whereas the Commissioner challenges only the relief.
Held :
1. The gender classification of § 407 is not substantially related to the attainment of any important and valid statutory goals; it is, rather, part of the "baggage of sexual stereotypes," Orr v. Orr, 440 U.S. 268, 283, 99 S.Ct. 1102, 1113, 59 L.Ed.2d 306, that presumes the father has the "primary responsibility to provide a home and its essentials," Stanton v. Stanton, 421 U.S. 7, 10, 95 S.Ct. 1373, 1375, 43 L.Ed.2d 688 while the mother is the "center of home and family life." Taylor v. Louisiana, 419 U.S. 522, 534 n. 15, 95 S.Ct. 692, 699 n. 15, 42 L.Ed.2d 690. Legislation that rests on such presumptions, without more, cannot survive scrutiny under the Due Process Clause of the Fifth Amendment. Pp. 83-89.
(a) The constitutionality of § 407 cannot be sustained on the theory that although it incorporates a gender distinction, it does not discriminate against women as a class because it affects family units rather than individuals. Pp. 83-85.
(b) Nor can § 407's gender distinction survive constitutional scrutiny as being substantially related to achievement of an important governmental objective. It does not serve the statutory goal of providing aid for needy children, nor is it substantially related to achieving the alleged objective of the AFDC-UF program of reducing the incentive for fathers to desert in order to make their families eligible for assistance. Pp. 85-89.
2. The District Court's remedial order was proper. Pp. 89-93.
(a) Since no party has argued that nullification of the AFDC-UF program is the proper remedial course, this Court would be inclined to consider that issue only if the power to order extension of the program were clearly beyond the constitutional competence of a federal district court. However, this Court's previous decisions, which routinely have affirmed district court judgments ordering extension of federal welfare programs, suggest strongly that no such remedial incapacity exists. Pp. 89-91.
(b) The District Court, in ordering that benefits be paid to families in which either the mother or the father is unemployed within the meaning of the Act, rather than accepting the "principal wage-earner" model suggested by the Commissioner, adopted the simplest and most equitable extension possible. Pp. 91-93.
D.C.Mass., 460 F.Supp. 737, affirmed.
William H. Alsup, Dept of Justice, Washington, D.C., for appellant in No. 78-437.
Paul W. Johnson, Boston, Mass., for appellant in No. 78-689.
Henry A. Freedman, New York City, for appellees in both cases.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Section 407 of the Social Security Act, 75 Stat. 75, as amended, 42 U.S.C. § 607, part of the Aid to Families with Dependent Children program, provides benefits to families whose dependent children have been deprived of parental support because of the unemployment of the father, but does not provide such benefits when the mother becomes unemployed. The United States District Court for the District of Massachusetts held that this distinction violates the Due Process Clause of the Fifth Amendment, and ordered that benefits be paid to families deprived of support because of the unemployment of the mother to the same extent they are paid to families deprived of support because of the unemployment of the father. 460 F.Supp. 737 (1978). In these appeals, the Secretary of the Department of Health, Education, and Welfare (HEW), in No. 78-437, challenges the holding on the constitutionality of § 407, but does not question the relief ordered by the District Court; the Commissioner of the Massachusetts Department of Public Welfare (DPW), in No. 78-689, acquiesces in the decision on the merits, but contests the relief.
2
* The Aid to Families with Dependent Children (AFDC) program, 49 Stat. 626, as amended, 42 U.S.C. § 601 et seq., provides financial assistance to families with needy dependent children. The program is administered by participating States, in conformity with federal standards, and is financed by the Federal Government and the States on a matching-funds basis. King v. Smith, 392 U.S. 309, 316-317, 88 S.Ct. 2128, 2132-2133, 20 L.Ed.2d 1118 (1968); Shea v. Vialpando, 416 U.S. 251, 253, 94 S.Ct. 1746, 1750, 40 L.Ed.2d 120 (1974).
3
As originally enacted in 1935, the AFDC program provided benefits to families whose dependent children were needy because of the death, absence, or incapacity of a parent. Batterton v. Francis, 432 U.S. 416, 418, 97 S.Ct. 2399, 2402, 53 L.Ed.2d 448 (1977). This provision, which forms the core of the AFDC program today, is gender neutral: benefits are available to any family so long as one parent of either sex is dead, absent from the home, or incapacitated, and the family otherwise meets the financial requirements of eligibility. 42 U.S.C. § 606.
4
In 1961, and again in 1962, Congress temporarily extended the AFDC program to provide assistance to families whose dependent children were deprived of support because of a parent's unemployment. Batterton v. Francis, 432 U.S., at 419, 97 S.Ct., at 2403; Philbrook v. Glodgett, 421 U.S. 707, 709-710, 95 S.Ct. 1893, 1896-1897, 44 L.Ed.2d 525 (1975). Again, this provision was gender neutral. A "dependent child," for purposes of determining eligibility for AFDC benefits, was defined to include "a needy child . . . who has been deprived of parental support or care by reason of the unemployment . . . of a parent." 75 Stat. 75 (emphasis added).
5
In 1968, as part of a general revision of the Social Security Act, Congress made this extension permanent. In so doing, however, it added a gender qualification to the statute. The definition of "dependent child" in § 407 was amended to include a "needy child . . . who has been deprived of parental support or care by reason of the unemployment . . . of his father." 42 U.S.C. § 607(a) (emphasis added). This portion of the AFDC program is known as Aid to Families with Dependent Children, Unemployed Father (AFDC-UF). Although all 50 States have chosen to participate in the basic AFDC program, only 26 States (plus Guam and the District of Columbia) take part in the AFDC-UF program. One of these is the Commonwealth of Massachusetts.
6
Appellees are two couples who, it is stipulated, satisfy all the requirements for AFDC-UF benefits1 except for the requirement that the unemployed parent be the father. Cindy and William Westcott are married and have an infant son. They applied to the Massachusetts DPW for public assistance, but were informed that they did not qualify because William, who was unable to find work, had not previously been employed for a sufficient period to qualify as an "unemployed" father under the Act and applicable regulations. Cindy, until her recent unemployment, was the family breadwinner, and would have satisfied the "unemployment" criteria had she been male.
7
Susan and John Westwood are also married and have an infant son. They applied for Medicaid benefits as a family eligible for, but not receiving, AFDC-UF benefits.2 They, too, were turned down on the ground that John's prior work history was insufficient. Susan, like Cindy Westcott, had been the family breadwinner before losing her job, and would have qualified the family for benefits had she been male.
8
Appellees instituted this class action in the United States District Court for the District of Massachusetts, naming as defendants the Secretary of HEW and the Commissioner of the DPW. Appellees alleged that § 407 and its implementing regulations discriminate on the basis of gender in violation of the Fifth and Fourteenth Amendments. They sought declaratory and injunctive relief.
9
The District Court certified the case as a class action,3 and granted appellees' motion for summary judgment. 460 F.Supp. 737 (1978). The court found that the gender qualification of § 407 was not substantially related to the achievement of any important governmental interests. 460 F.Supp., at 748-751. It was, rather, the product of an "archaic and overbroad generalization"—that "mothers in two parent families are not breadwinners, so that loss of their earnings would not substantially affect the families' well being." Id., at 751. The court accordingly declared § 407 unconstitutional "insofar as it establishes a classification which discriminates . . . solely on the basis of sex." 460 F.Supp., at 754.
10
The District Court then turned to the question of relief. The court saw two remedial alternatives: a simple injunction against further operation of the AFDC-UF program, or extension of the program to all families with needy children where either parent is unemployed. Id., at 753. The court decided that extension, rather than nullification, was the proper remedial course; it noted the strength of Congress' commitment to the "specific goal of assisting needy children," and emphasized that if provision of benefits "were halted because of the constitutional defect, many persons would lose their very means of subsistence." Id., at 753-754. The court therefore, by order dated April 20, 1978, enjoined the Commissioner from refusing to grant benefits to families made needy by the unemployment of the mother "in the same amounts and under the same standards" as he grants benefits to families made needy by the unemployment of the father. App. to Juris. Statement in No. 78-437, pp. 41A-42A. The court likewise enjoined the Secretary from refusing to provide federal matching funds for payment of such benefits. Id., at 40A-41A.
11
Although the Commissioner originally had agreed that this was the appropriate remedy, Juris. Statement in No. 78-689, p. 6, he later sought modification of the District Court's order, so as to effect a more limited extension of the AFDC-UF program. The Commissioner requested that he be permitted to pay benefits "only to those families where needy children have been deprived of parental support or care by the unemployment of the family's principal wage-earner. " App. to Juris. Statement in No. 78-689, p. 3a (emphasis added).4 This modification, he argued, would accomplish a gender-neutral extension of the program at a much lower cost. Id., at 4a. On August 9, 1978, the District Court denied the Commissioner's motion, believing that "any reformulation of the statutory scheme . . . which goes beyond the remedy already ordered in this case is properly left to Congressional action." Id., at 13a.
12
The Secretary, pursuant to 28 U.S.C. § 1252, appealed directly to this Court from the District Court's April 20 decision holding § 407 unconstitutional. App. to Juris. Statement in No. 78-437, p. 43A. The Commissioner took a separate appeal, also pursuant to § 1252, from the District Court's August 9 refusal to modify its remedial order. App. to Juris. Statement in No. 78-689, p. 15a. We noted probable jurisdiction and consolidated the cases for argument. 439 U.S. 1044, 99 S.Ct. 718, 58 L.Ed.2d 703 (1978).
II
THE SECRETARY'S APPEAL
13
The Secretary advances two arguments in support of the constitutionality of § 407. First, he contends that although § 407 incorporates a gender distinction, it does not discriminate against women as a class. Second, he urges that the distinction is substantially related to the achievement of an important governmental objective: the need to deter real or pretended desertion by the father in order to make his family eligible for AFDC benefits.
A.
14
The Secretary readily concedes that § 407 entails a gender distinction. Brief for Appellant in No. 78-437, p. 36. He submits, however, that the Act does not award AFDC benefits to a father where it denies them to a mother. Rather, the grant or denial of aid based on the father's unemployment necessarily affects, to an equal degree, one man, one woman, and one or more children. As the Secretary puts it, even if the statute is "gender-based," it is not "gender-biased." Ibid.
15
We are not persuaded by this analysis. For mothers who are the primary providers for their families, and who are unemployed, § 407 is obviously gender biased, for it deprives them and their families of benefits solely on the basis of their sex. The Secretary's argument, at bottom, turns on the fact that the impact of the gender qualification is felt by family units rather than individuals. But this Court has not hesitated to strike down gender classifications that result in benefits being granted or denied to family units on the basis of the sex of the qualifying parent. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (military quarters allowances and medical and dental benefits); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (survivor's benefits); Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) (survivor's benefits); Califano v. Jablon, 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 789 (1977), summarily aff'g 399 F.Supp. 118 (Md.1975) (spousal benefits). Here, as in those cases, the statute "discriminates against one particular category of family that in which the female spouse is a wage earner." Goldfarb, 430 U.S., at 209, 97 S.Ct., at 1028 (plurality opinion).
16
The Secretary appears to acknowledge the force of these precedents, but suggests that each involved benefits that either were a form of compensation earned by a woman as a member of the labor force, or were directly related to such compensation. In the present case, in contrast, the benefits are part of a noncontributory welfare program. Thus, the Secretary argues, the gender qualification of § 407 is distinguishable from those contained in the earlier cases, for it does not denigrate "the efforts of women who do work and whose earnings contribute significantly to their families' support." Wiesenfeld, 420 U.S., at 645, 95 S.Ct., at 1232.
17
The distinction between employment-related benefits and other forms of government largesse may be relevant to equal protection analysis, for example in determining whether the differential treatment of survivor's benefits denigrates the efforts of the deceased spouse. Wiesenfeld, 420 U.S., at 645-647, 95 S.Ct., at 1231-1232; Goldfarb, 430 U.S., at 206-207, 97 S.Ct., at 1026-1027 (plurality opinion). This does not mean, however, that the Constitution is indifferent to a statute that conditions the availability of noncontributory welfare benefits on the basis of gender. The Secretary's argument to the contrary in effect invites a return to the discredited view that welfare benefits are a "privilege" not subject to the guarantee of equal protection. See Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534 (1971). Putting labels aside, the exclusion here is if anything more pernicious than those in Frontiero, Wiesenfeld, and Goldfarb. AFDC-UF benefits are not "fringe benefits," nor are they a type of social assistance paid without regard to need. Rather, they are subsistence payments made available as a last resort to families that would otherwise lack basic necessities. The deprivation imposed by § 407, moreover, is not a mere procedural barrier, like the proof-of-dependency requirement in Frontiero and Goldfarb, but is an absolute bar to qualification for aid. We therefore reject the contention that the classification imposed by § 407 does not discriminate on the basis of gender.
B
18
The Secretary next argues that the gender distinction imposed by § 407 survives constitutional scrutiny because it is substantially related to achievement of an important governmental objective. Orr v. Orr, 440 U.S. 268, 279, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979); Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194-1195, 51 L.Ed.2d 360 (1977); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976). The Secretary identifies two important objectives served by § 407.
19
First and most obviously, the statute was intended to provide aid for children deprived of basic sustenance because of a parent's unemployment. H.R.Rep.No. 28, 87th Cong., 1st Sess., 2 (1961). As then HEW Secretary Ribicoff put it in testimony before the House Ways and Means Committee, "there is no justification whatsoever for denying to the child of the unemployed parent the food that you give to the child of the parent who deserts or is absent or dead." Hearings on H.R. 3864 and 3865 before the House Committee on Ways and Means, 87th Cong., 1st Sess., 102 (1961). The appellant Secretary does not contend, however, that the gender qualification of § 407 serves to achieve this goal. Tr. of Oral Arg. 6, 7-8. Nor could he, since families where the mother is the principal wage earner and is unemployed are often in as much need of AFDC-UF benefits and Medicaid as families where the father is unemployed.
20
Second, the statute was designed to remedy a structural fault in the original AFDC program. Under that program, a family was eligible for benefits if deprived of parental support because of the "continued absence from the home . . . of a parent." 42 U.S.C. § 606(a). In times of economic adversity, this provision was thought to create an incentive for the father to desert, or to pretend to desert, in order to make the family eligible for assistance. Section 407, by providing AFDC benefits to families rendered needy by parental unemployment, was intended to reduce this incentive and thereby promote the goal of family stability. The Secretary submits that reducing the incentive for the father to desert was an important objective of the AFDC-UF program, and he argues that the gender qualification is substantially related to its achievement.
21
We perceive, however, at least two flaws in this argument. Although it is relatively clear that Congress was concerned about the problem of parental desertion, see S.Rep.No.744, 90th Cong., 1st Sess., 160 (1967), U.S.Code Cong. & Admin.News 1967, p. 2834; H.R.Rep.No.28, 87th Cong., 1st Sess., 2 (1961), there is no evidence that the gender distinction was designed to address this problem. See Weinberger v. Wiesenfeld, 420 U.S., at 648, 95 S.Ct., at 1233. Both the original AFDC program, and the temporary versions of the AFDC-UF program enacted in 1961 and 1962, were gender neutral. The gender qualification added to the permanent version of AFDC-UF in 1968 escaped virtually unnoticed in the hearings and floor debates.5 The only explanation for this addition is contained in the following passage, which appears in nearly identical form in both the House and Senate Reports:
22
"This program was originally conceived by Congress as one to provide aid for the children of unemployed fathers. However, some States make families in which the father is working but the mother is unemployed eligible for assistance. The bill would not allow such situations. Under the bill, the program could apply only to the children of unemployed fathers." S.Rep.No.744, at 160.
23
See also H.R.Rep.No.554, 90th Cong., 1st Sess., 108 (1967), U.S.Code Cong. & Admin.News 1967, p. 2997.
24
This suggests that the gender qualification was part of the general objective of the 1968 amendments to tighten standards for eligibility and reduce program costs.6 Congress was concerned that certain States were making AFDC-UF assistance available to families where the mother was out of work, but the father remained fully employed and able to supportthe family. Apparently, Congress was not similarly concerned about States making benefits available where the father was out of work, but the mother remained fully employed. From all that appears, Congress, with an image of the "traditional family" in mind, simply assumed that the father would be the family breadwinner, and that the mother's employment role, if any, would be secondary. In short, the available evidence indicates that the gender distinction was inserted to reduce costs and eliminate what was perceived to be a type of superfluous eligibility for AFDC-UF benefits. There is little to suggest that the gender qualification had anything to do with reducing the father's incentive to desert.7
25
Even if the actual purpose of the gender qualification was to deal with the problem of paternal desertion, it does not appear that the classification is substantially related to the achievement of that goal. The Secretary argues there is "[s]olid statistical evidence" that fathers are more susceptible to pressure to desert than mothers, and thus that Congress was justified in excluding families headed by unemployed mothers from the AFDC-UF program. Brief for Appellant in No. 78-437, p. 33. We may assume, for purposes of discussion, that Congress could legitimately view paternal desertion as a problem separate and distinct from maternal desertion. Even so, the gender qualification of § 407 is not substantially related to the stated purpose. There is no evidence, in the legislative history or elsewhere, that a father has less incentive to desert in a family where the mother is the breadwinner and becomes unemployed, than in a family where the father is the breadwinner and becomes unemployed. In either case, the family's need will be equally great, and the father will be equally subject to pressure to leave the home to make the family eligible for benefits. The Secretary urges that Congress could take "one firm step" toward the goal of eliminating the incentive to desert, quoting Califano v. Jobst, 434 U.S. 47, 57-58, 98 S.Ct. 95, 101-102, 54 L.Ed.2d 228 (1977). But Congress may not legislate "one step at a time" when that step is drawn along the line of gender, and the consequence is to exclude one group of families altogether from badly needed subsistence benefits. Cf. Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955).
26
We conclude that the gender classification of § 407 is not substantially related to the attainment of any important and valid statutory goals. It is, rather, part of the "baggage of sexual stereotypes," Orr v. Orr, 440 U.S., at 283, 99 S.Ct., at 1113, that presumes the father has the "primary responsibility to provide a home and its essentials," Stanton v. Stanton, 421 U.S. 7, 10, 95 S.Ct. 1373, 1376, 43 L.Ed.2d 688 (1975), while the mother is the " 'center of home and family life.' " Taylor v. Louisiana, 419 U.S. 522, 534 n. 15, 95 S.Ct. 692, 699 n. 15, 42 L.Ed.2d 690 (1975). Legislation that rests on such presumptions, without more, cannot survive scrutiny under the Due Process Clause of the Fifth Amendment.
III
THE COMMISSIONER'S APPEAL
A.
27
"Where a statute is defective because of underinclusion," Mr. Justice Harlan noted, "there exist two remedial alternatives: a court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion." Welsh v. United States, 398 U.S. 333, 361, 90 S.Ct. 1792, 1807-1808, 26 L.Ed.2d 308 (1970) (concurring in result). In previous cases involving equal protection challenges to underinclusive federal benefits statutes, this Court has suggested that extension, rather than nullification, is the proper course. See e. g., Jimenez v. Weinberger, 417 U.S. 628, 637-638, 94 S.Ct. 2496, 2502-2503, 41 L.Ed.2d 363 (1974); Frontiero v. Richardson, 411 U.S., at 691 and n. 25, 93 S.Ct., at 1772 and n. 25 (plurality opinion). Indeed, this Court regularly has affirmed District Court judgments ordering that welfare benefits be paid to members of an unconstitutionally excluded class. E. g., Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), aff'g 396 F.Supp. 308, 309 (EDNY 1975); Califano v. Silbowitz, 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 768 (1977), summarily aff'g 397 F.Supp. 862, 871 (SDFla.1975); Jablon v. Califano, 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 789 (1977), summarily aff'g 399 F.Supp. 118, 132-133 (Md.1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), aff'g 367 F.Supp. 981, 991 (NJ 1973); United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973), aff'g 345 F.Supp. 310, 315-316 (DC 1972); Richardson v. Griffin, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972), summarily aff'g 346 F.Supp. 1226, 1237 (Md.).
28
The District Court ordered extension rather than invalidation by way of remedy here, and equitable considerations surely support its choice. Approximately 300,000 needy children currently receive AFDC-UF benefits, see 42 Soc.Sec.Bull. 78 (Jan. 1979), and an injunction suspending the program's operation would impose hardship on beneficiaries whom Congress plainly meant to protect. The presence in the Social Security Act of a strong severability clause, 42 U.S.C. § 1303,8 likewise counsels against nullification, for it evidences a congressional intent to minimize the burdens imposed by a declaration of unconstitutionality upon innocent recipients of government largesse.
29
There is no need, however, to elaborate here the conditions under which invalidation rather than extension of an underinclusive federal benefits statute should be ordered, for no party has presented that issue for review. All parties before the District Court agreed that extension was the appropriate remedy. Juris. Statement in No. 78-689, p. 6; Motion to Affirm 5; Juris. Statement in No. 78-437, p. 6 n. 5. Appellees support that remedy here, and the Secretary, while arguing in favor of § 407's constitutionality, urges that, if the statute is invalidated, the District Court's remedy should be affirmed. Brief for Federal Appellee in No. 78-689, pp. 5-10. The Commissioner likewise argues that extension, rather than nullification, is proper, Tr. of Oral Arg. 18; indeed, the Commissioner did not appeal from the District Court's April 20 extension order, but only from its August 9 refusal to limit extension along "principal wage-earner" lines. App. to Juris. Statement in No. 78-689, p. 15a. Since no party has presented the issue of extension versus nullification for review, we would be inclined to consider it only if the power to order extension were clearly beyond the constitutional competence of a federal district court. This Court's previous decisions, however, which routinely have affirmed District Court judgments ordering extension of federal welfare programs, suggest strongly that no such remedial incapacity exists.
B
30
The narrower question presented by the Commissioner's appeal concerns not the merits of extension versus nullification, but rather the form that extension should take. The District Court ordered that benefits be paid to families in which either the mother or the father is unemployed within the meaning of the Act. The Commissioner agrees that either the mother's or the father's unemployment should be able to qualify a needy family for benefits, but proposes to award them only if the parent in question can show that he or she is both unemployed and the family's "principal wage-earner." Citing the legislative history of the AFDC-UF program, the Commissioner argues that his proposed remedy comports with Congress' intent to aid families made needy by their breadwinner's unemployment. This argument, as the preceding portions of this opinion show, is not without force. We may assume arguendo that, if Congress knew in 1968 what it knows now, it might well have adopted the "principal wage-earner" model suggested by the Commissioner. But this does not mean that the AFDC-UF program should be restructured along these lines by a federal court.
31
First, the Commissioner's proposed remedy would have the effect of terminating benefits to many families currently receiving them. Under the Act and implementing regulations, benefits are paid to needy families of all unemployed fathers, whether or not the father is actually the "principal wage-earner." See 42 U.S.C. § 607(a); 45 CFR § 233.100(a)(1) (1978). No one contends that the Act and regulations, insofar as they provide benefits to families of all unemployed fathers, are invalid. Absent some such showing of invalidity, we would hesitate to terminate needy families' entitlement to statutory benefits merely because the unemployed father cannot prove "breadwinner" status.
32
Second, the Commissioner's proposed remedy would involve a restructuring of the Act that a court should not undertake lightly. Whenever a court extends a benefits program to redress unconstitutional underinclusiveness, it risks infringing legislative prerogatives. The extension ordered by the District Court possesses at least the virtue of simplicity: by ordering that "father" be replaced by its gender-neutral equivalent, the court avoided disruption of the AFDC-UF program, for benefits simply will be paid to families with an unemployed parent on the same terms that benefits have long been paid to families with an unemployed father. The "principal wage-earner" solution, by contrast, would introduce a term novel in the AFDC scheme,9 and would pose definitional and policy questions best suited to legislative or administrative elaboration. The Commissioner, with his "principal wage-earner" gloss on parental unemployment, in essence asks this Court to redefine "unemployment" within the meaning of the Act. Yet "Congress in § 407(a) expressly delegated to the Secretary the power to prescribe standards for determining what constitutes 'unemployment' for purposes of AFDC-UF eligibility. In a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term." Batterton v. Francis, 432 U.S., at 425, 97 S.Ct., at 2405 (emphasis in original).
33
The remedy the Commissioner proposes, of course, undeniably would be cheaper than the remedy the District Court decreed, in part because it would terminate some current recipients' eligibility. Although cost may prove a dispositive factor in other contexts, we do not regard it as controlling here. The United States, which will bear the main burden of added coverage through federal matching grants, urges that the District Court's remedy be affirmed. The AFDC-UF program, furthermore, is optional with the States, id., at 431, 97 S.Ct., at 2408, and any State is free to drop out of it if dissatisfied with the added expense. This Court, in any event, is ill-equipped both to estimate the relative costs of various types of coverage, and to gauge the effect that different levels of expenditures would have upon the alleviation of human suffering. Under these circumstances, any fine-tuning of AFDC coverage along "principal wage-earner" lines is properly left to the democratic branches of the Government. In sum, we believe the District Court, in an effort to render the AFDC-UF program gender neutral, adopted the simplest and most equitable extension possible.
34
The judgment of the District Court accordingly is affirmed.
35
It is so ordered.
36
Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice REHNQUIST join, concurring in part and dissenting in part.
37
I agree with the Court that § 407 violates the equal protection component of the Fifth Amendment. In my view, however, the court below erred when it ordered the extension of benefits to all families in which a mother has become unemployed. This extension reinstates a system of distributing benefits that Congress rejected when it amended § 407 in 1968. Rather than frustrate the clear intent of Congress, the court simply should have enjoined any further payment of benefits under the provision found to be unconstitutional.
As Mr. Justice Harlan observed:
38
"Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion." Welsh v. United States, 398 U.S. 333, 361, 90 S.Ct. 1792, 1807-1808, 26 L.Ed.2d 308 (1970) (concurring in result).
39
In choosing between these alternatives, a court should attempt to accommodate as fully as possible the policies and judgments expressed in the statutory scheme as a whole. See id., at 365-366, and n. 18, 90 S.Ct., at 1809-1810, and n. 18. It should not use its remedial powers to circumvent the intent of the legislature.
40
The Court correctly observes that "the gender qualification [of § 407] was part of the general objective of the 1968 amendments to tighten standards for eligibility and reduce program costs." Ante, at 87. It is clear that Congress intended to proscribe the payment of benefits to families where only one parent was unemployed and where the principal wage earner continued to work.
41
"From all that appears, Congress, with an image of the 'traditional family' in mind, simply assumed that the father would be the family breadwinner, and that the mother's employment role, if any, would be secondary." Ante, at 88.
42
Yet the result of the Court's decision affirming the District Court's relief is to compel exactly the extension of benefits Congress wished to prevent.1
43
Rather than thus rewriting § 407, we should leave this task to Congress. Now that we have held that this statute constitutes impermissible gender-based discrimination, it is the duty and function of the Legislative Branch to review its AFDC-UF program in light of our decision and make such changes therein as it deems appropriate. Leaving the resolution to Congress is especially desirable in cases such as this one, where the allocation and distribution of welfare funds are peculiarly within the province of the Legislative Branch. See Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977); Maher v. Roe, 432 U.S. 464, 479, 97 S.Ct. 2376, 2385, 53 L.Ed.2d 484 (1977); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).
44
We cannot predict what Congress will think to be in the best interest of its total welfare program. The extension of AFDC benefits to families suffering only from unemployment was a relatively recent development in the history of the program, a development that Congress made permanent only on the understanding that payments could be limited to cases where the principal wage earner was out of work. We cannot assume that Congress in 1968 would have approved this extension if it had known that ultimately payments would be made whenever either parent became unemployed. Nor can we assume that Congress now would adopt such a system in light of the Court's ruling that § 407 is invalid.
45
The Court emphasizes the hardships that may be caused by enjoining the program until Congress can act. There is the possibility, not mentioned by the Court, that other hardships might be occasioned in the allocating of limited funds as a result of court-ordered extension of these particular benefits. In any event, Congress has the option to mitigate hardships by providing promptly for retroactive payments. An injunction prohibiting further payments at least will conserve the funds appropriated until Congress determines which group, if any, it does want to assist. The relief ordered by the Court today, in contrast, ensures the irretrievable payment of funds to a class of recipients Congress did not wish to benefit.2
46
Because it is clear that Congress intended to prevent the result mandated today, and that the re-examination of § 407 required under our decision properly should be made by Congress, I dissent.
1
To be eligible for benefits under the AFDC-UF program, a family must meet both financial and categorical requirements. The financial requirements are determined by the participating States, and vary widely from one State to another. Rosado v. Wyman, 397 U.S. 397, 408-409, 90 S.Ct. 1207, 1215-1216, 25 L.Ed.2d 442 (1970). The categorical requirements, however, are largely determined by the Federal Government. The Act itself specifies that the father must have had 6 or more quarters of work in any 13-quarter period ending within one year prior to the application for aid, and must be currently employed for less than 100 hours per month. 42 U.S.C. § 607(b)(1)(C). In addition, § 407 of the Act gives the Secretary of HEW authority to promulgate regulations further defining the "unemployment" that will render a family eligible for AFDC-UF benefits. Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977). The regulations, like the statute, speak in terms of the unemployment of the "father." 45 CFR § 233.100(a)(1) (1978).
2
In States that participate in both the AFDC program and the Medicaid program, 42 U.S.C. § 1396 et seq., individuals who qualify for AFDC benefits are also entitled to receive Medicaid benefits. § 1396a(a)(10).
3
The class was defined as
"those Massachusetts families with two parents in the home and with minor dependent children, born or unborn, who would otherwise be eligible for AFDC under Massachusetts' AFDC program, and hence Medicaid as well, but for the sex discrimination in the federal statute [42 U.S.C. § 607] and Massachusetts regulations [6 CHSR III, Subch. A, Pt. 301, § 301.03; Pt. 303, Subpt. A, §§ 303.01 & 303.04] which provide for the granting of federally funded AFDC and Medicaid to families deprived of support because of the unemployment of their father, but not to families deprived of support because of the mother's unemployment." App. to Juris. Statement in No. 78-437, pp. 39A-40A.
The Secretary does not contest the class certification. Juris. Statement in No. 78-437, p. 5 n. 4.
4
The Commissioner proposed to define "principal wage-earner" as the parent whose earned income or unemployment compensation was greater during the six months preceding the month of application. App. to Juris. Statement in No. 78-689, pp. 7a-8a.
5
During the Senate floor debate on the Conference Report, Senator Muskie briefly noted and opposed the gender limitation of § 407. 113 Cong.Rec. 36914 (1967).
6
The overriding purpose of the 1968 AFDC amendments was "[t]o give greater emphasis to getting appropriate members of families drawing aid to families with dependent children (AFDC) payments into employment and thus no longer dependent on the welfare rolls." H.R.Rep.No.544, 90th Cong., 1st Sess., 3 (1967). The principal changes in the AFDC-UF program designed to accomplish this end included provisions "to authorize a Federal definition of unemployment by the Secretary (but within certain limits set forth in the legislation), to tie the program more closely to the work and training program authorized by the bill, and to protect only the children of unemployed fathers who have had a recent attachment to the work force." Id., at 108.
7
This conclusion is reinforced by the fact that both the House and Senate Reports included material dealing specifically with the problem of parental desertion, yet none of this material mentioned the gender qualification of § 407. H.R.Rep.No.544, 90th Cong., 1st Sess., 102-103 (1967); S.Rep.No.744, 90th Cong., 1st Sess., 160-163 (1967).
8
"If any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby." 42 U.S.C. § 1303.
9
The Act, for example, provides benefits to two-parent families made needy by the incapacity of either parent, regardless of which parent may have been the "principal wage-earner." 42 U.S.C. § 606(a).
1
The relief that perhaps would best approximate what Congress appears to have intended would limit payment of benefits to those families in which the principal wage earner, regardless of gender, has become unemployed. But this approach presents several difficulties, as the Court demonstrates. Ante, at 91-93. Under these circumstances, the modification of the order sought by appellant in No. 78-689 properly was rejected.
The Court suggests that payments to families where a breadwinner remains employed are not inconsistent with the Act, because in cases where a parent becomes incapacitated, benefits are paid regardless of the other parent's employment status or history. 42 U.S.C. § 606(a); see ante, at 92 n. 9. This overlooks the special circumstances involved when a parent suffers from an incapacity. In such cases, the family usually must bear not only the costs of income lost through the one parent's unemployment, but also medical and other expenses resulting from the disability that often are quite substantial.
2
The fact that none of the parties here has sought this step, a point which the Court emphasizes, is irrelevant. This issue should turn on the intent of Congress, not the interests of the parties. A court no less is "infringing legislative prerogatives," ante, at 92, when it acts at the behest of the particular litigants before it, than when it chooses a remedy on its own initiative.
| 12
|
443 U.S. 55
99 S.Ct. 2642
61 L.Ed.2d 365
William G. BARRY, etc., et al., Appellants,v.John BARCHI.
No. 77-803.
Argued Nov. 7, 1978.
Decided June 25, 1979.
Syllabus
The New York State Racing and Wagering Board (Board), which is empowered to license horse trainers participating in harness horse-race meets in New York, has issued regulations specifying the standards of conduct that a trainer must satisfy to retain his license. The trainer's responsibility rules provide that when a postrace test of a horse reveals the presence of drugs, it is to be presumed—subject to rebuttal—that the drug was either administered by the trainer or resulted from his negligence in failing adequately to protect against such occurrence. Under a New York statute (§ 8022), a suspended licensee is entitled to a postsuspension hearing, but the statute specifies no time in which the hearing must be held, affords the Board as long as 30 days after the hearing in which to issue a final order, and ordains that "[p]ending such hearing and final determination thereon, the action of the [Board] in . . . suspending a license . . . shall remain in full force and effect." Pursuant to the trainer's responsibility rules and the evidentiary presumption created therein, the Board summarily suspended appellee's trainer's license for 15 days on the basis of a postrace test that revealed a drug in the system of a horse trained by him. Without resorting to the § 8022 procedures, appellee filed suit in Federal District Court, challenging the constitutionality of § 8022 and the evidentiary presumption under the Board's rules. The court upheld the presumption, but concluded that § 8022 was unconstitutional under the Due Process Clause of the Fourteenth Amendment, since it permitted the State to sanction a trainer without either a presuspension or a prompt postsuspension hearing, and that § 8022 also violated the Equal Protection Clause of the Fourteenth Amendment, since it prohibited a stay of a license suspension pending administrative review, whereas under the laws applicable to thoroughbred racing, suspensions could be stayed pending appeal.
Held:
1. Section 8022 does not violate the Due Process Clause by authorizing summary suspensions without a presuspension hearing. Although appellee has a property interest in his license under state law sufficient to invoke due process protections, and although the magnitude of a trainer's interest in avoiding suspension is substantial, the State also has an important interest in assuring the integrity of racing carried on under its auspices. In these circumstances, the State is entitled to impose an interim suspension, pending a prompt judicial or administrative hearing that will definitely determine the issues, whenever it has satisfactorily established probable cause to believe that a horse has been drugged and that a trainer has been at least negligent in connection with the drugging. Here, the State adduced the assertion of its testing official as proof that appellee's horse had been drugged, and, at the interim suspension stage, an expert's affirmance would appear sufficiently reliable to satisfy constitutional requirements. As for appellee's culpability, in light of the Board's trainer's responsibility rules, the inference, predicated on the fact of drugging, that appellee was at least negligent will be accepted as defensible, and the State will not be put to further presuspension proof that appellee had not complied with the applicable rules. Pp. 63-66.
2. However, appellee was not assured a sufficiently timely post-suspension hearing and § 8022 was unconstitutionally applied in this respect. The statutory provision for an administrative hearing, neither on its face nor as applied, assured a prompt proceeding and prompt disposition of the outstanding issues between appellee and the State, it being as likely as not that appellee and others subject to relatively brief suspensions would have no opportunity to put the State to its proof until they have suffered the full penalty imposed. Once suspension has been imposed, the trainer's interest in a speedy resolution of the controversy becomes paramount, and there is little or no state interest in an appreciable delay in going forward with a full hearing. P. 66.
3. The State's prohibition of administrative stays pending a hearing in the harness racing context without a like prohibition in thoroughbred racing does not deny harness racing trainers equal protection of the laws. The legislative history of § 8022 makes clear that it and other provisions applicable to harness racing resulted from a legislative conclusion that harness racing should be subject to strict regulation, and appellee has not demonstrated that the acute problems attending harness racing also plague thoroughbred racing and that both types of racing should be treated identically. Also, the procedural mechanism selected to mitigate the threats to the public interest arising in the harness racing context is rationally related to the achievement of that goal. Pp. 67-68.
D.C.N.Y., 436 F.Supp. 775, affirmed in part, reversed in part, and remanded.
Robert S. Hammer, New York City, for appellants.
Joseph A. Faraldo, Kew Gardens, N. Y., for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
The New York State Racing and Wagering Board (Board) is empowered to license horse trainers and others participating in harness horse-race meets in New York.1 The Board also issues regulations setting forth the standards of conduct that a horse trainer must satisfy to retain his license.2 Among other things, the rules issued by the Board forbid the drugging of horses within 48 hours of a race and make trainers responsible for the condition and soundness of their horses before, during, and after a race.3 A trainer is forbidden to permit a horse in his custody to start a race "if he knows, or if by the exercise of reasonable care he might have known or have cause to believe" that a horse trained by him has been drugged.4 Every trainer is required to "guard or cause to be guarded each horse trained by him in such manner . . . as to prevent any person not employed by or connected with the owner or trainer from administering any drug . . .."5 And when a post-race test, which must be administered to horses finishing first, second, or third, reveals the presence of drugs, it is to be presumed—subject to rebuttal—that the drug "was either administered by the trainer or resulted from his negligence in failing to adequately protect against such occurrence."6
2
On June 22, 1976, Be Alert, a harness race horse trained by appellee, John Barchi, finished second in a race at Monticello Raceway. Two days later, Barchi was advised by the Board steward that a postrace urinalysis had revealed a drug in Be Alert's system. Barchi proclaimed his innocence, and two lie-detector tests supported his lack of knowledge of the drugging. On July 8, relying on the trainer's responsibility rules and the evidentiary presumption arising thereunder, the steward suspended Barchi for 15 days, commencing July 10.7 Under § 8022 of the New York Unconsolidated Laws,8 a suspended licensee is entitled to a post-suspension hearing, but the section ordains that "[p]ending such hearing and final determination thereon, the action of the [Board] in . . . suspending a license . . . shall remain in full force and effect." The section specifies no time in which the hearing must be held, and it affords the Board as long as 30 days after the conclusion of the hearing in which to issue a final order adjudicating a case. Without resorting to the § 8022 procedures, Barchi filed this suit in the United States District Court.
3
Barchi alleged that his trainer's license was protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution and that § 8022 was unconstitutional because it permitted his license to be suspended without a prior hearing to determine his culpability and because a summary suspension could not be stayed pending the administrative review provided by the statute. Barchi also challenged the rule permitting the Board to presume rebuttably from the drugging of a horse that its trainer was responsible. His claim was that "there is no rational connection between the fact proved, that the horse was illegally drugged, and the ultimate fact presumed that the trainer is guilty of the act or carelessly guarded against the act occurring," App. at 15a (complaint), it being impossible, Barchi alleged, for the trainer to guard the horse against all those who by stealth might gain access to it. Barchi's third claim was that, in prohibiting a stay of his suspension pending administrative review, § 8022 denied him equal protection of the laws, since in the context of thoroughbred racing, in contrast to harness racing, suspensions can be stayed pending appeal.9
4
The District Court upheld the evidentiary presumption on its face, concluding: "[T]he duty of a trainer to oversee his horses is sufficiently connected to the occurrence of tampering to support the presumption established by the trainer's 'insurer' rules. The state's definition of trainer responsibility is reasonably related to the interests involved and, given the rebuttable nature of the 4120.5 presumption, the high standard of accountability is not unconstitutional." Barchi v. Sarafan, 436 F.Supp. 775, 784 (SDNY 1977). The District Court went on to hold, however, that § 8022 of the New York law was unconstitutional under the Due Process Clause since it permitted the State "to irreparably sanction a harness race horse trainer without a pre-suspension or a prompt post-suspension hearing in violation of plaintiff's right to due process." App. to Juris. Statement 2a (order of judgment).10 The court further concluded that the difference between the procedures applicable to harness racing and those applicable to thoroughbred racing was so unwarranted as to violate the Equal Protection Clause of the Fourteenth Amendment.
5
We noted probable jurisdiction of the appeal. 435 U.S. 921, 98 S.Ct. 1482, 55 L.Ed.2d 514 (1978). In this Court, the appellants adhere to their fundamental position that, as a constitutional matter, Barchi was entitled to no more process than was available to him under § 8022 either before or after the suspension was imposed and became effective. Barchi, on the other hand, continues to insist that his suspension could in no event become effective without a prior hearing to establish that his horse had been drugged and that he was culpable.
6
We agree with appellants that § 8022 does not affront the Due Process Clause by authorizing summary suspensions without a presuspension hearing, and we reject Barchi's contrary contention. In disagreement with appellants, however, we conclude that Barchi was not assured a sufficiently timely postsuspension hearing and that § 8022 was unconstitutionally applied in this respect.
7
It is conceded that, under New York law, Barchi's license could have been suspended only upon a satisfactory showing that his horse had been drugged and that he was at least negligent in failing to prevent the drugging. As a threshold matter, therefore, it is clear that Barchi had a property interest in his license sufficient to invoke the protection of the Due Process Clause.11 We do not agree with Barchi's basic contention, however, that an evidentiary hearing was required prior to the effectuation of his suspension. Unquestionably, the magnitude of a trainer's interest in avoiding suspension is substantial; but the State also has an important interest in assuring the integrity of the racing carried on under its auspices. In these circumstances, it seems to us that the State is entitled to impose an interim suspension, pending a prompt judicial or administrative hearing that would definitely determine the issues, whenever it has satisfactorily established probable cause to believe that a horse has been drugged and that a trainer has been at least negligent in connection with the drugging. Cf. Gerstein v. Pugh, 420 U.S. 103, 111-112, 95 S.Ct. 854, 861-862, 43 L.Ed.2d 54 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600, 609, 94 S.Ct. 1895, 1900, 40 L.Ed.2d 406 (1974); Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971). In such circumstances, the State's interest in preserving the integrity of the sport and in protecting the public from harm becomes most acute. At the same time, there is substantial assurance that the trainer's interest is not being baselessly compromised.
8
Under this standard, Barchi received all the process that was due him prior to the suspension of his license. As proof that Barchi's horse had been drugged, the State adduced the assertion of its testing official, who had purported to examine Barchi's horse pursuant to prescribed testing procedures. To establish probable cause, the State need not postpone a suspension pending an adversary hearing to resolve questions of credibility and conflicts in the evidence. At the interim suspension stage, an expert's affirmance, although untested and not beyond error, would appear sufficiently reliable to satisfy constitutional requirements.
9
As for Barchi's culpability, the New York trainer's responsibility rules, approved by the District Court, established a rebuttable presumption or inference, predicated on the fact of drugging, that Barchi was at least negligent. In light of the duties placed upon the trainer by the trainer's responsibility rules, we accept this inference of culpability as defensible and would not put the State to further presuspension proof that Barchi had not complied with the applicable rules. Furthermore, although Barchi was not given a formal hearing prior to the suspension of his license, he was immediately notified of the alleged drugging, 16 days elapsed prior to the imposition of the suspension, and he was given more than one opportunity to present his side of the story to the State's investigators. In fact, he stated his position in the course of taking two lie-detector examinations. He points to nothing in the record demonstrating convincingly that he was not negligent, and the State's investigators apparently failed to unearth an explanation for the drugging that would completely exonerate him. Even if the State's presuspension procedures, then, were not adequate finally to resolve the issues fairly and accurately, they sufficed for the purposes of probable cause and interim suspension.
10
That the State's presuspension procedures were satisfactory, however, still leaves unresolved how and when the adequacy of the grounds for suspension is ultimately to be determined. As the District Court found, the consequences to a trainer of even a temporary suspension can be severe; and we have held that the opportunity to be heard must be "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1192, 14 L.Ed.2d 62 (1965). Here, the provision for an administrative hearing, neither on its face nor as applied in this case, assured a prompt proceeding and prompt disposition of the outstanding issues between Barchi and the State. Indeed, insofar as the statutory requirements are concerned, it is as likely as not that Barchi and others subject to relatively brief suspensions would have no opportunity to put the State to its proof until they have suffered the full penalty imposed. Yet, it is possible that Barchi's horse may not have been drugged and Barchi may not have been at fault at all. Once suspension has been imposed, the trainer's interest in a speedy resolution of the controversy becomes paramount, it seems to us. We also discern little or no state interest, and the State has suggested none, in an appreciable delay in going forward with a full hearing. On the contrary, it would seem as much in the State's interest as Barchi's to have an early and reliable determination with respect to the integrity of those participating in state-supervised horse racing.
11
In these circumstances, it was necessary that Barchi be assured a prompt postsuspension hearing, one that would proceed and be concluded without appreciable delay. Because the statute as applied in this case was deficient in this respect, Barchi's suspension was constitutionally infirm under the Due Process Clause of the Fourteenth Amendment. The question remains whether the State's prohibition of administrative stays pending a hearing in the harness racing context without a like prohibition in thoroughbred racing denies harness racing trainers equal protection of the laws. The District Court acknowledged that the inquiry in this respect is "whether or not the classification is without a reasonable basis." 436 F.Supp., at 783. Put another way, a statutory classification such as this should not be overturned "unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational." Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979). In holding that § 8022 violated the Equal Protection Clause, the District court misapplied this standard. The legislative history of § 8022 makes clear that the section and other provisions applicable to harness racing resulted from a legislative conclusion that harness racing should be subject to strict regulation,12 and neither Barchi nor the District Court has demonstrated that the acute problems attending harness racing also plague the thoroughbred racing industry. Barchi has not shown that the two industries should be identically regulated in all respects; he has not convinced us that "the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley, supra, at 111, 99 S.Ct., at 950. It was not the State's burden to disprove by resort to "current empirical proof," 440 U.S., at 110, 99 S.Ct., at 950. Barchi's bare assertions that thoroughbred and harness racing should be treated identically.
12
It also seems clear to us that the procedural mechanism selected to mitigate the threats to the public interest arising in the harness racing context is rationally related to the achievement of that goal. The State could reasonably conclude that swift suspension of harness racing trainers was necessary to protect the public from fraud and to foster public confidence in the harness racing sport. Accordingly, we think the District Court erred in disapproving the difference in the procedural courses applicable to harness racing and thoroughbred racing.
13
We thus affirm the judgment of the District Court insofar as it ruled Barchi's suspension unconstitutional for lack of assurance of a prompt postsuspension hearing. We reverse its judgment, however, to the extent that it declared § 8022 unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The judgment of the District Court is accordingly affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.13
14
It is so ordered.
15
Mr. Justice BRENNAN, with whom Mr. Justice STEWART, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, concurring in part.
16
I agree that the District Court properly declined either to abstain in this case or to require exhaustion of state remediesthat were themselves being challenged as unconstitutional.1
17
I also agree that appellee's trainer's license clothes him with a constitutionally protected interest of which he cannot be deprived without procedural due process. What was said of automobile drivers' licenses in Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971), is even more true of occupational licenses such as Barchi's:
18
"Once licenses are issued, . . . their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment."
19
See Dixon v. Love, 431 U.S. 105, 112, 97 S.Ct. 1723, 1727, 52 L.Ed.2d 172 (1977); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); cf. New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978). Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), stated, in identifying protected interests, that Bell v. Burson was an example of situations in which "[t]he Court has . . . made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money."2
20
Appellants seek to avoid these cases by characterizing appellee's license as a "privilege" and arguing that one who has accepted the benefits of a license is precluded from challenging the conditions attached to it, including the procedures for suspension and revocation. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (plurality opinion). The Court properly rejects this contention—indeed, does not even mention it. Board of Regents v. Roth, supra, 408 U.S., at 571, 92 S.Ct., at 2706, emphasized that "the Court has fully and finally rejected the wooden distinction between 'rights' and 'privileges' that once seemed to govern the applicability of procedural due process rights." Having once determined that the interest at stake is protected by the Due Process Clause, a court has occasion only to inquire what process is due. See Dixon v. Love, supra, 431 U.S., at 112, 97 S.Ct., at 1727; Mathews v. Eldridge, 424 U.S. 319, 332-333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976).
21
Turning then to the question whether the procedures available to Barchi satisfied the mandates of due process, appellants argue that the State's interest in protecting horses and in protecting the repute of racing and the State's income derived from racing justify summary suspensions of trainers' licenses when traces of drugs are allegedly found in their horses' urine.3 Prior decisions established that "[b]efore a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, 'except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event,' " Board of Regents v. Roth, supra, 408 U.S., at 570 n. 7, 92 S.Ct., at 2705, quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971); see Smith v. Organization of Foster Families, 431 U.S. 816, 848, 97 S.Ct. 2094, 2112, 53 L.Ed.2d 14 (1977); Bell v. Burson, supra, at 542, 91 S.Ct., at 1591. Even where a State'sinterests justify action, after only summary informal proceedings, that temporarily infringes on protected interests pending a later full hearing, that full hearing must be available promptly after the temporary deprivation occurs. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Goldberg v. Kelly, 397 U.S. 254, 266-267, 90 S.Ct. 1011, 1019-1020, 25 L.Ed.2d 287 (1970). In any event,
22
"[t]his Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. [Citations omitted.] The 'right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.' Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). See Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914)." Mathews v. Eldridge, supra, 424 U.S., at 333, 96 S.Ct., at 902.
23
The District Court held in this case that "[o]n balance . . . the absence of either a pre-suspension hearing or a prompt post-suspension hearing denie[d Barchi] the meaningful review due process requires." Barchi v. Sarafan, 436 F.Supp. 775, 782 (SDNY 1977). I agree with the District Court and with the Court that the absence of an opportunity for a prompt postsuspension hearing denied Barchi due process. Given the "in the alternative" phrasing of the District Court's judgment and the absence of a cross appeal by Barchi,4 however, I would not reach the question whether due process required a presuspension hearing in this case. Even assuming that the presuspension procedures afforded Barchi satisfied due process in light of the State's allegedly substantial interests,5 the State has failed to identify any substantial interest in postponing Barchi's opportunity for a full hearing once Barchi's license was suspended. Yet the District Court found that no opportunity for an immediate postsuspension full hearing was available. Furthermore, the District Court found that, in harness racing, even a temporary suspension can irreparably damage a trainer's livelihood. Not only does a trainer lose the income from races during the suspension, but also, even more harmful, he is likely to lose the clients he has collected over the span of his career.6 Where, as here, even a short temporary suspension threatens to inflict substantial and irreparable harm, an "initial" deprivation quickly becomes "final," and the procedures afforded either before or immediately after suspension are de facto the final procedures. A final full hearing and determination after Barchi had been barred from racing his horses and had lost his clients to other trainers was aptly described by the District Court as an "exercise in futility," 436 F.Supp., at 782, and would certainly not qualify as a "meaningful opportunity to be heard at a meaningful time." To be meaningful, an opportunity for a full hearing and determination must be afforded at least at a time when the potentially irreparable and substantial harm caused by a suspension can still be avoided—i. e., either before or immediately after suspension.
24
I therefore join those parts of the Court's opinion holding that the District Court properly refused to abstain or to require exhaustion and that the procedures available to Barchi failed to satisfy the requirements of due process because they did not assure a suspended trainer an opportunity for an immediate postsuspension full hearing and determination. In light of this holding, of Barchi's failure to cross appeal from the judgment of the District Court, and of possibly significant changes in the procedures applicable to all future suspensions,7 I would not reach the additional questions whether Barchi was constitutionally entitled to a pre-suspension hearing and whether the difference between the procedures in harness racing and those in flat racing violates the Equal Protection Clause.
25
Accordingly, I would affirm the judgment of the District Court insofar as it nullifies Barchi's suspension because the procedures applicable to his case at the time of his suspension did not satisfy due process. Like the Court, I express no view as to the constitutionality of procedures under § 8022 as it may have been modified by subsequent legislation; I would therefore vacate that portion of the District Court's judgment that declares § 8022 unconstitutional and enjoin its enforcement.
1
New York Unconsol.Laws § 8010(1) (McKinney 1979) authorizes the "state harness racing commission," whose powers are now exercised by the New York State Racing and Wagering Board, see §§ 7951-a, 8162 (McKinney 1979), to "license drivers and such other persons participating in harness horse race meets, as the commission may by rule prescribe . . .." See also 9 N.Y.C.R.R. § 4101.24 (1975).
2
The Board has issued, in particular, a series of rules specifying a trainer's responsibility for the condition of horses under the trainer's care, 9 N.Y.C.R.R. §§ 4116.11, 4120.5, 4120.6 (1974):
"4116.11. Trainer's responsibility. A trainer is responsible for the condition, fitness, equipment, and soundness of each horse at the time it is declared to race and thereafter when it starts in a race."
"4120.5 Presumptions. Whenever [certain tests required to be made on horses that place first, second, or third in a race] disclose the presence in any horse of any drug, stimulant, depressant or sedative, in any amount whatsoever, it shall be presumed:
"(a) that the same was administered by a person or persons having the control and/or care and/or custody of such horse with the intent thereby to affect the speed or condition of such horse and the result of the race in which it participated;
"(b) that it was administered within the period prohibited [by § 4120.4(d), see n. 3, infra ]; and
"(c) that a sufficient quantity was administered to affect the speed or condition of such animal.
"4120.6. Trainer's responsibility. A trainer shall be responsible at all times for the condition of all horses trained by him. No trainer shall start a horse or permit a horse in his custody to be started if he knows, or if by the exercise of reasonable care he might have known or have cause to believe, that the horse has received any drug, stimulant, sedative, depressant, medicine, or other substance that could result in a positive test. Every trainer must guard or cause to be guarded each horse trained by him in such manner and for such period of time prior to racing the horse so as to prevent any person not employed by or connected with the owner or trainer from administering any drug, stimulant, sedative, depressant, or other substance resulting in a positive test."
3
Title 9 N.Y.C.R.R. § 4120.4 (1974) provides in part:
"No person shall, or attempt to, or shall conspire with another or others to:
"(a) Stimulate or depress a horse through the administration of any drug, medication, stimulant, depressant, hypnotic or narcotic.
* * * * *
"(d) Administer any drug, medicant, stimulant, depressant, narcotic or hypnotic to a horse within 48 hours of its race."
See also § 4116.11, quoted in n.2, supra.
4
9 N.Y.C.R.R. § 4120.6 (1974), quoted in n.2, supra.
5
Ibid.
6
Barchi v. Sarafan, No. 76 Civ. 3070 (SDNY, Dec. 23, 1976), reprinted in App. to Juris. Statement 24a; see Barchi v. Sarafan, 436 F.Supp. 775, 784 (SDNY 1977); App. 25a (affidavit of John Barchi). The Assistant Attorney General of New York interpreted the presumption in this way both before the three-judge court and in oral argument before this Court:
"QUESTION: What this is is a presumption to get the matter started and that can be rebutted by other evidence.
"MR. HAMMER: Absolutely, Your Honor. This is a permissive presumption. It is a rule of evidence, nothing more." Tr. of Oral Arg. 7.
See id., at 5; Tr. 33-34 (trainer not held absolutely responsible for drugging of horse "if it is shown that the trainer was not culpable, that he, himself, could not administer the drug and he was not found to be negligent in supervising the people under him").
7
Title 9 N.Y.C.R.R. § 4105.8(f) (1974), authorizes presiding judges "[w]here a violation of any rule is suspected to conduct an inquiry promptly and to take such action as may be appropriate . . .." New York Unconsol.Laws § 8010(2) (McKinney 1979) states the grounds for revocation or suspension:
". . . The commission may suspend or revoke a license issued pursuant to this section if it shall determine that (a) the applicant or licensee (1) has been convicted of a crime involving moral turpitude; (2) has engaged in bookmaking or other form of illegal gambling; (3) has been found guilty of any fraud in connection with racing or breeding; (4) has been guilty of any violation or attempt to violate any law, rule or regulation of any racing jurisdiction for which suspension from racing might be imposed in such jurisdiction; (5) or . . . has violated any rule, regulation or order of the commission, or [that (b)] the experience, character or general fitness of any applicant or licensee is such [that] the participation of such person in harness racing or related activities would be inconsistent with the public interest, convenience or necessity or with the best interests of racing generally."
8
New York Unconsol.Laws § 8022 (McKinney 1979) provides in full:
"If the state harness racing commission shall refuse to grant a license applied for under this act, or shall revoke or suspend such a license granted by it, or shall impose a monetary fine upon a participant in harness racing the applicant or licensee or party fined may demand, within ten days after notice of the said act of the commission, a hearing before the commission and the commission shall give prompt notice of a time and place for such hearing at which the commission will hear such applicant or licensee or party fined in reference thereto. Pending such hearing and final determination thereon, the action of the commission in refusing to grant or in revoking or suspending a license or in imposing a monetary fine shall remain in full force and effect. The commission may continue such hearing from time to time for the convenience of any of the parties. Any of the parties affected by such hearing may be represented by counsel, and the commission may be represented by the attorney-general, a deputy attorney-general or its counsel. In the conduct of such hearing the commission shall not be bound by technical rules of evidence, but all evidence offered before the commission shall be reduced to writing, and such evidence together with the exhibits, if any, and the findings of the commission, shall be permanently preserved and shall constitute the record of the commission in such case. In connection with such hearing, each member of the commission shall have the power to administer oaths and examine witnesses, and may issue subpoenas to compel attendance of witnesses, and the production of all material and relevant reports, books, papers, documents, correspondence and other evidence. The commission may, if occasion shall require, by order, refer to one or more of its members or officers, the duty of taking testimony in such matter, and to report thereon to the commission, but no determination shall be made therein except by the commission. Within thirty days after the conclusion of such hearing, the commission shall make a final order in writing, setting forth the reasons for the action taken by it and a copy thereof shall be served on such applicant or licensee or party fined, as the case may be. The action of the commission in refusing to grant a license or in revoking or suspending a license or in imposing a monetary fine shall be reviewable in the supreme court in the manner provided by the provisions of article seventy-eight of the civil practice law and rules."
9
The provision applicable to thoroughbred racing, N.Y.Unconsol.Laws § 7915(3) (McKinney 1979), provides:
"No license shall be revoked unless such revocation is at a meeting of the state racing commission on notice to the licensee, who shall be entitled to a hearing in respect of such revocation. In the conduct of such hearing the commission shall not be bound by technical rules of evidence but all evidence offered before the commission shall be reduced to writing, and such evidence together with the exhibits, if any, and the findings of the commission, shall be permanently preserved and shall constitute the record of the commission in such case. The action of the commission in refusing, suspending or in revoking a license shall be reviewable in the supreme court in the manner provided by the provisions of article seventy-eight of the civil practice law and rules. Such hearing may be held by the chairman thereof or by any commissioner designated by him in writing, and the chairman or said commissioner may issue subpoenas for witnesses and administer oaths to witnesses. The chairman or commissioner holding such hearing shall, at the conclusion thereof, make his findings with respect thereto and said findings, if concurred in by two members of the commission, shall become the findings and determination of the commission."
10
The District Court declined to abstain to permit the state courts to construe § 8022 prior to adjudication of Barchi's constitutional claims on their merits. Appellants had maintained that the provision might be construed to give the Board discretion to stay suspensions pending the outcome of the postsuspension hearing provided by § 8022. The District Court thought the language of the statute unequivocally foreclosed that construction. We cannot say that the District Court erred in this respect. Section 8022 provides that, pending a full hearing and final determination thereon, "the action of the [Board] in . . . suspending a license . . . shall remain in full force and effect." (Emphasis added.) The provision gives no assurance of a presuspension or prompt postsuspension hearing and determination. And it makes clear that the Board need not reach a determination until "thirty days after the conclusion of [the] hearing."
We reject appellants' further contention that Barchi should not have commenced suit prior to exhausting the procedure contemplated under § 8022. Under existing authority, exhaustion of administrative remedies is not required when "the question of the adequacy of the administrative remedy . . . [is] for all practical purposes identical with the merits of [the plaintiff's] lawsuit." Gibson v. Berryhill, 411 U.S. 564, 575, 93 S.Ct. 1689, 1696, 36 L.Ed.2d 488 (1973).
11
Under New York law, a license may not be revoked or suspended at the discretion of the racing authorities. Cf. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Rather, suspension may ensue only upon proof of certain contingencies. See N.Y.Unconsol.Laws § 8010 (McKinney 1979), quoted in n.7, supra. Notably, when a horse is found to have been drugged, the license of the horse's trainer may be suspended or revoked if he did the drugging, if he knew or should have known that the horse had been drugged, or if he negligently failed to prevent it. Accordingly, state law has engendered a clear expectation of continued enjoyment of a license absent proof of culpable conduct by the trainer. Barchi, therefore, has asserted a legitimate "claim of entitlement . . . that he may invoke at a hearing." Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); see Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
12
In response to the slaying of a union official who represented employees at a harness track and the resulting disclosure of "a pattern of activities . . . clearly inimical to the public interest," Governor Dewey appointed a commission to inquire into the general regulation of harness tracks. N.Y. Legis. Doc. No. 86, 177th Sess., 3 (1954). The investigation disclosed that harness racing had become "a lush and attractive field for every kind of abuse." Id., at 4; see Report of the New York State Commission, in Public Papers of Governor Thomas E. Dewey 505 (1954). The Commission recommended major changes in the harness racing laws, including enactment of the provisions of § 8022 ruled unconstitutional by the District Court. See 1954 N.Y. Laws, ch. 510, § 8; Report of the New York State Commission, supra, at 512.
13
We express no view on whether the procedures under § 8022, as that section may have been modified by subsequent legislation, satisfy the strictures of the Due Process Clause. After the District Court rendered its decision, the Appellate Division of the New York Supreme Court nullified a Board order summarily suspending a veterinarian's license to practice medicine at racetracks on the ground that the Board had not made "any finding that the public health, safety, or welfare imperatively required such emergency action as a suspension prior to a hearing." Gerard v. Barry, 59 A.D.2d 901, 399 N.Y.S.2d 876 (1977). The court relied on § 401(3) of the State Administrative Procedure Act, N.Y. State Admin.Proc. Act § 401(3) (McKinney Supp.1977), which provides:
"If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered, effective on the date specified in such order or upon service of a certified copy of such order on the licensee, whichever shall be later, pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined."
Section 401(3) did not take effect until September 1, 1976, two months after Barchi was suspended. The section has no bearing on the constitutionality of procedures under § 8022 as applied to persons like Barchi who were suspended prior to its effective date. See N.Y. State Admin.Proc. Act § 103(3) (McKinney Supp.1977).
1
I also agree that the Court need not address the District Court's holding that the rebuttable presumption of trainer responsibility is constitutional; appellee did not cross appeal, and he is not to be heard upon the challenge to that holding made in his brief, since agreement with that challenge would result in greater relief than was awarded him by the District Court. See FEA v. Algonquin SNG, Inc., 426 U.S. 548, 560 n. 11, 96 S.Ct. 2295, 2302, 49 L.Ed.2d 49 (1976); United States v. Raines, 362 U.S. 17, 27 n. 7, 80 S.Ct. 519, 526, 4 L.Ed.2d 524 (1960).
Lower court decisions conflict on the question whether an irrebuttable presumption of trainer responsibility is constitutional. Compare Brennan v. Illinois Racing Board, 42 Ill.2d 352, 247 N.E.2d 881 (1969) (irrebuttable presumption unconstitutional), with Hubel v. West Virginia Racing Comm'n, 513 F.2d 240 (CA4 1975) (irrebuttable presumption constitutional). See generally Note, Brennan v. Illinois Racing Board : The Validity of Statutes Making a Horse Trainer the Absolute Insurer for the Condition of His Horse, 74 Dick.L.Rev. 303 (1970).
2
408 U.S., at 571-572, 92 S.Ct., at 2706. Roth explained that "[t]o have a [protected] property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id., at 577, 92 S.Ct., at 2709. No extended inquiry into the formal and informal "rules or understandings that secure certain benefits and that support claims of entitlement to those benefits," ibid., is necessary here. Cf. Perry v. Sindermann, 408 U.S. 593, 599-603, 92 S.Ct. 2694, 2698-2700 (1972). Appellee's claim to an entitlement in his duly issued trainer's license is confirmed by the state statutes authorizing the issuance of licenses. See N.Y. Unconsol.Laws § 8010 (McKinney 1979).
3
Cf. Hubel v. West Virginia Racing Commission, supra, 513 F.2d 240 (CA4 1975), which described West Virginia's interests as follows:
"The state has at least two substantial interests to be served. It has a humanitarian interest in protecting the health of the horse, and it has a broader and more weighty interest in protecting the purity of the sport, both from the standpoint of protecting its own substantial revenues derived from taxes on legalized pari-mutuel betting and protecting patrons of the sport from being defrauded. . . . If a horse is fleeter or slower than his normal speed because of having been drugged, the integrity of the race is irretrievably lost. Of course, if stimulated, his artificial position at the finish may be corrected and he may be deprived of any purse that he apparently won. But the interests of bettors cannot be protected. Winning tickets must be paid promptly at the end of the race before the disqualification of the horse, except for the most obvious reasons, can be accomplished." 513 F.2d, at 243-244.
4
See n. 1, supra.
5
My reservation of the presuspension hearing issue does not imply agreement with the Court on this matter. The record in this case in my view raises serious doubts that the alleged state interests in this context are sufficient to justify postponing a trainer's hearing until after his suspension. See Mackey v. Montrym, 443 U.S. 1, 25-26, 99 S.Ct. 2612, 2621, 61 L.Ed.2d 321 (1979) (STEWARD, J., dissenting). The asserted importance of New York's interest in summary action is plainly depreciated by the State Board's claimed practice of staying suspensions when appropriate. See Tr. of Oral Arg., 10-12; Tr. 27-30; affidavit of John M. Dailey, Aug. 26, 1976, App. 34a. Moreover, in this case 16 days elapsed between the positive urine test and the suspension order. These practices are hardly consistent with appellants' claim that summary suspensions are necessary to serve important state interests whenever a drug test is positive.
6
"Race horse trainers may be entrusted with the care of a number of trotters at any given time. A trainer's income is derived in large measure from the proceeds of horse races (as opposed to a salary), and, since, harness 'meetings' are sporadic, trainers cannot recapture the racing opportunities lost by missed meetings. Once a trainer is suspended, even for a brief period, an owner will immediately seek the services of another trainer so that the horse is not barred from racing. This change is often permanent in order to avoid further disruption in the care of the animal. Significantly, plaintiff has proffered the affidavit of a third-party trainer/driver who experienced just such a loss during a suspension for a similar drug infraction. He had also suffered irreparable damage for a subsequent ex parte suspension that was later reversed. Racing opportunities lost because of a suspension cannot be recovered by a later reversal in [a] review hearing for obvious reasons. Furthermore, defendants do not dispute the fact that a loss of horses in a trainer's stable occasioned during his suspension can often be an irremediable injury, even though such suspension is erroneous and without justification." Barchi v. Sarafan, 436 F.Supp. 775, 778 (SDNY 1977).
See affidavit of John Barchi, July 12, 1976, App. 23a; affidavit of Lucien Fontaine, Aug. 17, 1976, App. 39a.
7
See ante, at 68-69, n. 13.
| 34
|
443 U.S. 31
99 S.Ct. 2627
61 L.Ed.2d 343
State of MICHIGAN, Petitioner,v.Gary DeFILLIPPO.
No. 77-1680.
Argued Feb. 21, 1979.
Decided June 25, 1979.
Syllabus
At 10 o'clock at night, Detroit police officers found respondent in an alley with a woman who was in the process of lowering her slacks. When asked for identification, respondent gave inconsistent and evasive responses. He was then arrested for violation of a Detroit ordinance, which provides that a police officer may stop and question an individual if he has reasonable cause to believe that the individual's "behavior . . . warrants further investigation" for criminal activity, and further provides that it is unlawful for any person so stopped to refuse to identify himself and produce evidence of his identity. In a search which followed, the officers discovered drugs on respondent's person, and he was charged with a drug offense but not with violation of the ordinance. The trial court denied his motion to suppress the evidence obtained in the search. The Michigan Court of Appeals reversed, holding that the Detroit ordinance was unconstitutionally vague, that both the arrest and search were invalid because respondent had been arrested pursuant to that ordinance, and that the evidence obtained in the search should have been suppressed on federal constitutional grounds even though it was obtained as a result of an arrest pursuant to a presumptively valid ordinance.
Held : Respondent's arrest, made in good-faith reliance on the Detroit ordinance, which at the time had not been declared unconstitutional, was valid regardless of the subsequent judicial determination of its unconstitutionality, and therefore the drugs obtained in the search should not have been suppressed. Pp. 35-40.
(a) Under the Fourth and Fourteenth Amendments, an arresting officer may, without a warrant, search a person validly arrested. The fact of a lawful arrest, standing alone, authorizes a search. Pp. 35-36.
(b) The Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense. Here, the arresting officer had abundant probable cause to believe that respondent's conduct violated the ordinance: respondent's presence with a woman in the circumstances described clearly was "behavior warrant[ing] further investigation" under the ordinance, and respondent's responses to the request for identification constituted a refusal to identify himself as the ordinance required. Pp. 36-37.
(c) Under these circumstances, the arresting officer did not lack probable cause simply because he should have known the ordinance was invalid and would be judicially declared unconstitutional. A prudent officer, in the course of determining whether respondent had committed an offense under such circumstances, should not have been required to anticipate that a court would later hold the ordinance unconstitutional. Pp. 37-38.
(d) Since the arrest under the presumptively valid ordinance was valid, the search which followed was valid because it was incidental to that arrest. Torres v. Puerto Rico, 442 U.S. 465, 99 S.Ct. 2425, 61 L.Ed.2d 1; Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596; and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917; Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, distinguished. Pp. 39-40.
80 Mich.App. 197, 262 N.W.2d 921, reversed and remanded.
Timothy A. Baughman, Detroit, Mich., for petitioner.
James C. Howarth, Detroit, Mich., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The question presented by this case is whether an arrest made in good-faith reliance on an ordinance, which at the time had not been declared unconstitutional, is valid regardless of a subsequent judicial determination of its unconstitutionality.
2
* At approximately 10 p. m. on September 14, 1976, Detroit police officers on duty in a patrol car received a radio call to investigate two persons reportedly appearing to be intoxicated in an alley. When they arrived at the alley, they found respondent and a young woman. The woman was in the process of lowering her slacks. One of the officers asked what they were doing, and the woman replied that she was about to relieve herself. The officer then asked respondent for identification; respondent asserted that he was Sergeant Mash, of the Detroit Police Department; he also purported to give his badge number, but the officer was unable to hear it. When respondent again was asked for identification, he changed his answer and said either that he worked for or that he knew Sergeant Mash. Respondent did not appear to be intoxicated.
3
Section 39-1-52.3 of the Code of the City of Detroit provides that a police officer may stop and question an individual if he has reasonable cause to believe that the individual's behavior warrants further investigation for criminal activity. In 1976 the Detroit Common Council amended § 39-1-52.3 to provide that it should be unlawful for any person stopped pursuant thereto to refuse to identify himself and produce evidence of his identity.1
4
When he failed to identify himself, respondent was taken into custody for violation of § 39-1-52.3;2 he was searched by one of the officers who found a package of marihuana in one of respondent's shirt pockets, and a tinfoil packet secreted inside a cigarette package in the other. The tinfoil packet subsequently was opened at the station; an analysis established that it contained phencyclidine, another controlled substance.
5
Respondent was charged with possession of the controlled substance phencyclidine. At the preliminary examination, he moved to suppress the evidence obtained in the search following the arrest; the trial court denied the motion. The Michigan Court of Appeals allowed an interlocutory appeal and reversed. It held that the Detroit ordinance, § 39-1-52.3, was unconstitutionally vague and concluded that since respondent had been arrested pursuant to that ordinance, both the arrest and the search were invalid.
6
The court expressly rejected the contention that an arrest made in good-faith reliance on a presumptively valid ordinance is valid regardless of whether the ordinance subsequently is declared unconstitutional. Accordingly, the Michigan Court of Appeals remanded with instructions to suppress the evidence and quash the information. 80 Mich.App. 197, 262 N.W.2d 921 (1977).
7
The Michigan Supreme Court denied leave to appeal. We granted certiorari, 439 U.S. 816, 99 S.Ct. 76, 58 L.Ed.2d 107 (1978), to review the Michigan court's holding that evidence should be suppressed on federal constitutional grounds, although it was obtained as a result of an arrest pursuant to a presumptively valid ordinance. That holding was contrary to the holdings of the United States Court of Appeals for the Fifth Circuit that such arrests are valid. See United States v. Carden, 529 F.2d 443 (CA5 1976); United States v. Kilgen, 445 F.2d 287 (1971).
II
8
Respondent was not charged with or tried for violation of the Detroit ordinance. The State contends that because of the violation of the ordinance, i. e., refusal to identify himself, which respondent committed in the presence of the officers, respondent was subject to a valid arrest. The search that followed being incidental to that arrest, the State argues that it was equally valid and the drugs found should not have been suppressed. Respondent contends that since the ordinance which he was arrested for violating has been found unconstitutionally vague on its face, the arrest and search were invalid as violative of his rights under the Fourth and Fourteenth Amendments. Accordingly, he contends the drugs found in the search were correctly suppressed.
9
Under the Fourth and Fourteenth Amendments, an arresting officer may, without a warrant search a person validly arrested. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). The constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search. United States v. Robinson, supra, 414 U.S., at 235, 94 S.Ct., at 476. Here the officer effected the arrest of respondent for his refusal to identify himself; contraband drugs were found as a result of the search of respondent's person incidental to that arrest. If the arrest was valid when made, the search was valid and the illegal drugs are admissible in evidence.
10
Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law. Ker v. California, 374 U.S. 23, 37, 83 S.Ct. 1623, 1631, 10 L.Ed.2d 726 (1963); Johnson v. United States, 333 U.S. 10, 15, and n. 5, 68 S.Ct. 367, 370, and n. 5, 92 L.Ed. 436 (1948). Respondent does not contend, however, that the arrest was not authorized by Michigan law. See Mich.Comp.Laws § 764.15 (1970). His sole contention is that since the arrest was for allegedly violating a Detroit ordinance later held unconstitutional, the search was likewise invalid.
III
11
It is not disputed that the Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense. Adams v. Williams, 407 U.S. 143, 148-149, 92 S.Ct. 1921, 1924-1925, 32 L.Ed.2d 612 (1972); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest. We have made clear that the kinds and degree of proof and the procedural requirements necessary for a conviction are not prerequisites to a valid arrest. See Gerstein v. Pugh, 420 U.S. 103, 119-123, 95 S.Ct. 854, 865-867, 43 L.Ed.2d 54 (1975); Brinegar v. United States, 338 U.S. 160, 174-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1949).
12
When the officer arrested respondent, he had abundant probable cause to believe that respondent's conduct violated the terms of the ordinance. The ordinance provides that a person commits an offense if (a) an officer has reasonable cause to believe that given behavior warrants further investigation, (b) the officer stops him, and (c) the suspect refuses to identify himself. The offense is then complete.
13
Respondent's presence with a woman, in the circumstances described, in an alley at 10 p. m. was clearly, in the words of the ordinance, "behavior . . . warrant[ing] further investigation." Respondent's inconsistent and evasive responses to the officer's request that he identify himself, stating first that he was Sergeant Mash of the Detroit Police Department and then that he worked for or knew Sergeant Mash, constituted a refusal by respondent to identify himself as the ordinance required. Assuming, arguendo, that a person may not constitutionally be required to answer questions put by an officer in some circumstances, the false identification violated the plain language of the Detroit ordinance.
14
The remaining question, then, is whether, in these circumstances, it can be said that the officer lacked probable cause to believe that the conduct he observed and the words spoken constituted a violation of law simply because he should have known the ordinance was invalid and would be judicially declared unconstitutional. The answer is clearly negative.
15
This Court repeatedly has explained that "probable cause" to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. See Gerstein v. Pugh, supra, 420 U.S., at 111, 95 S.Ct., at 861; Adams v. Williams, supra, 407 U.S., at 148, 92 S.Ct., at 1924; Beck v. Ohio, supra, 379 U.S., at 91, 85 S.Ct., at 225; Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959); Brinegar v. United States, supra, 338 U.S., at 175-176, 69 S.Ct., at 1310-1311; Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925).
16
On this record there was abundant probable cause to satisfy the constitutional prerequisite for an arrest. At that time, of course, there was no controlling precedent that this ordinance was or was not constitutional, and hence the conduct observed violated a presumptively valid ordinance. A prudent officer, in the course of determining whether respondent had committed an offense under all the circumstances shown by this record, should not have been required to anticipate that a court would later hold the ordinance unconstitutional.
17
Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality—with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.
18
In Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), persons who had been arrested for violating a statute later declared unconstitutional by this Court sought damages for false arrest under state law and for violation of the Fourteenth Amendment under 42 U.S.C. § 1983. Mr. Chief Justice Warren speaking for the Court, in holding that police action based on a presumptively valid law was subject to a valid defense of good faith, observed: "A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." 386 U.S., at 555, 87 S.Ct., at 1218. The Court held that "the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983." Id., at 557, 87 S.Ct., at 1219. Here, the police were not required to risk "being charged with dereliction of duty if [they did] not arrest when [they had] probable cause" on the basis of the conduct observed.3
IV
19
We have held that the exclusionary rule requires suppression of evidence obtained in searches carried out pursuant to statutes, not previously declared unconstitutional, which purported to authorize the searches in question without probable cause and without a valid warrant. See, e. g., Torres v. Puerto Rico, 442 U.S. 465, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Our holding today is not inconsistent with these decisions; the statutes involved in those cases bore a different relationship to the challenged searches than did the Detroit ordinance to respondent's arrest and search.
20
Those decisions involved statutes which, by their own terms, authorized searches under circumstances which did not satisfy the traditional warrant and probable-cause requirements of the Fourth Amendment. For example, in Almeida-Sanchez v. United States, supra, we held invalid a search pursuant to a federal statute which authorized the Border Patrol to search any vehicle within a "reasonable distance" of the border, without a warrant or probable cause. The Attorney General, by regulation, fixed 100 miles as a "reasonable distance" from the border. 413 U.S., at 268, 93 S.Ct., at 2537. We held a search so distant from the point of entry was unreasonable under the Constitution. In Berger v. New York, we struck down a statute authorizing searches under warrants which did not "particularly describ[e] the place to be searched, and the persons or things to be seized," as required by the Fourth and Fourteenth Amendments. 388 U.S., at 55-56, 87 S.Ct., at 1882.
21
In contrast, the ordinance here declared it a misdemeanor for one stopped for "investigation" to "refuse to identify himself"; it did not directly authorize the arrest or search.4 Once respondent refused to identify himself as the presumptively valid ordinance required, the officer had probable cause to believe respondent was committing an offense in his presence, and Michigan's general arrest statute, Mich.Comp.Laws § 764.15 (1970), authorized the arrest of respondent, independent of the ordinance. The search which followed was valid because it was incidental to that arrest. The ordinance is relevant to the validity of the arrest and search only as it pertains to the "facts and circumstances" we hold constituted probable cause for arrest.
22
The subsequently determined invalidity of the Detroit ordinance on vagueness grounds does not undermine the validity of the arrest made for violation of that ordinance, and the evidence discovered in the search of respondent should not have been suppressed. Accordingly, the case is remanded for further proceedings not inconsistent with this opinion.
23
Reversed and remanded.
24
Mr. Justice BLACKMUN, concurring.
25
I join the Court's opinion, but add a few words about the concern so evident in Mr. Justice BRENNAN'S dissenting opinion that today's decision will allow States and municipalities to circumvent the probable-cause requirement of the Fourth Amendment. There is some danger, I acknowledge, that the police will use a stop-and-identify ordinance to arrest persons for improper identification; that they will then conduct a search pursuant to the arrest; that if they discover contraband or other evidence of crime, the arrestee will be charged with some other offense; and that if they do not discover contraband or other evidence of crime, the arrestee will be released. In this manner, if the arrest for violation of the stopand-identify ordinance is not open to challenge, the ordinance itself could perpetually evade constitutional review.
26
There is no evidence in this case, however, that the Detroit ordinance is being used in such a pretextual manner. See Tr. of Oral Arg. 8. If a defendant in a proper case showed that the police habitually arrest, but do not prosecute, under a stop-and-identify ordinance, then I think this would suffice to rebut any claim that the police were acting in reasonable, good-faith reliance on the constitutionality of the ordinance. The arrestee could then challenge the validity of the ordinance, and, if the court concluded it was unconstitutional, could have the evidence obtained in the search incident to the arrest suppressed.
27
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice STEVENS join, dissenting.
28
I disagree with the Court's conclusion that the Detroit police had constitutional authority to arrest and search respondent because respondent refused to identify himself in violation of the Detroit ordinance. In my view, the police conduct, whether or not authorized by state law, exceeded the bounds set by the Constitution and violated respondent's Fourth Amendment rights.
29
At the time of respondent's arrest, Detroit City Code § 39-1-52.3 (1976) read as follows:
30
"When a police officer has reasonable cause to believe that the behavior of an individual warrants further investigation for criminal activity, the officer may stop and question such person. It shall be unlawful for any person stopped pursuant to this section to refuse to identify himself, and to produce verifiable documents or other evidence of such identification. In the event that such person is unable to provide reasonable evidence of his true identity, the police officer may transport him to the nearest precinct in order to ascertain his identity." Detroit police, acting purely on suspicion, stopped respondent Gary DeFillippo on the authority of this ordinance and demanded that he identify himself and furnish proof of his identity. When respondent rebuffed their inquiries the police arrested him for violation of the ordinance. Thereafter, police searched respondent and discovered drugs.
31
Respondent challenges the constitutionality of the ordinance and his arrest and search pursuant to it. The Court assumes the unconstitutionality of the ordinance but upholds respondent's arrest nonetheless. The Court reasons that the police had probable cause to believe that respondent's actions violated the ordinance, that the police could not have been expected to know that the ordinance was unconstitutional, and that the police actions were therefore reasonable.
32
The Court errs, in my view, in focusing on the good faith of the arresting officers and on whether they were entitled to rely upon the validity of the Detroit ordinance. For the dispute in this case is not between the arresting officers and respondent. Cf. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).1 The dispute is between respondent and the State of Michigan. The ultimate issue is whether the State gathered evidence against respondent through unconstitutional means. Since the State is responsible for the actions of its legislative bodies as well as for the actions of its police, the State can hardly defend against this charge of unconstitutional conduct by arguing that the constitutional defect was the product of legislative action and that the police were merely executing the laws in good faith. See Torres v. Puerto Rico, 442 U.S. 465, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). States "may not . . . authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure 'is not whether the search [or seizure] was authorized by state law. The question is rather whether the search [or seizure] was reasonable under the Fourth Amendment.' " Sibron v. New York, 392 U.S. 40, 61, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968), quoting in part from Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 790, 17 L.Ed.2d 730 (1967).
33
If the Court's inquiry were so directed and had not asked whether the arresting officers faithfully applied state law, invalidation of respondent's arrest and search would have been inescapable. For the Court's assumption that the Detroit ordinance is unconstitutional is well founded; the ordinance is indeed unconstitutional and patently so. And if the reasons for that constitutional infirmity had only been explored, rather than simply assumed, it would have been obvious that the application of the ordinance to respondent by Detroit police in this case trenched upon respondent's Fourth Amendment rights and resulted in an unreasonable search and seizure.
34
The touchstone of the Fourth Amendment's protection of privacy interests and prohibition against unreasonable police searches and seizures is the requirement that such police intrusions be based upon probable cause—" 'the best compromise that has been found for accommodating [the] often opposing interests' in 'safeguard[ing] citizens from rash and unreasonable interferences with privacy' and in 'seek[ing] to give fair leeway for enforcing the law in the community's protection.' " Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979), quoting from Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949).
35
Because of this requirement and the constitutional policies underlying it, the authority of police to accost citizens on the basis of suspicion is "narrowly drawn," Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968), and carefully circumscribed. See Dunaway v. New York, supra. Police may not conduct searches when acting on less than probable cause. Even weapons frisks in these circumstances are permissible only if the police have reason to believe that they are dealing with an armed and dangerous individual. See Terry v. Ohio, supra, at 24, 88 S.Ct., at 1881. Furthermore, while a person may be briefly detained against his will on the basis of reasonable suspicion "while pertinent questions are directed to him . . . the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest . . . ." Terry v. Ohio, supra, at 34, 88 S.Ct., at 1886 (WHITE, J., concurring). In the context of criminal investigation, the privacy interest in remaining silent simply cannot be overcome at the whim of any suspicious police officer.2 "[W]hile the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer." Davis v. Mississippi, 394 U.S. 721, 727 n. 6, 89 S.Ct. 1394, 1397 n. 6, 22 L.Ed.2d 676 (1969).
36
In sum then, individuals accosted by police on the basis merely of reasonable suspicion have a right not to be searched, a right to remain silent, and, as a corollary, a right not to be searched if they choose to remain silent.
37
It is plain that the Detroit ordinance and the police conduct that it purports to authorize abridge these rights and their concomitant limitations upon police authority. The ordinance authorizes police, acting on the basis of suspicion, to demand answers from suspects and authorizes arrest, search, and conviction for those who refuse to comply. The ordinance therefore commands that which the Constitution denies the State power to command and makes "a crime out of what under the Constitution cannot be a crime." Coates v. Cincinnati, 402 U.S. 611, 616, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971). Furthermore, the ordinance, by means of a transparent expedient making the constitutionally protected refusal to answer itself a substantive offense—sanctions circumvention by the police of the Court's holding that refusal to answer police inquiries during a Terry stop furnishes no basis for a full-scale search and seizure. Clearly, this is a sheer piece of legislative legerdemain not to be countenanced. See Davis v. Mississippi, supra, 394 U.S., at 726-727, 89 S.Ct., at 1397-1398; Sibron v. New York, supra.
38
The Court does not dispute this analysis. Rather, it assumes that respondent had a constitutional right to refuse to cooperate with the police inquiries, that the ordinance is unconstitutional and that henceforward the ordinance shall be regarded as null and void. Yet, the Court holds that arrests and searches pursuant to the ordinance prior to its invalidation by the Michigan Court of Appeals are constitutionally valid. Given the Court's assumptions concerning the invalidity of the ordinance, its conclusion must rest on the tacit assumption that the defects requiring invalidation of the ordinance and of convictions entered pursuant to it do not also require the invalidation of arrests pursuant to the ordinance. But only a brief reflection upon the pervasiveness of the ordinance's constitutional infirmities demonstrates the fallacy of that assumption.
39
A major constitutional defect of the ordinance is that it forces individuals accosted by police solely on the basis of suspicion to choose between forgoing their right to remain silent and forgoing their right not to be searched if they choose to remain silent. Clearly, a constitutional prohibition merely against prosecutions under the ordinance and not against arrests under the ordinance as well would not solve this dilemma. For the fact would remain that individuals who chose to remain silent would be forced to relinquish their right not to be searched (and indeed would risk conviction on the basis of any evidence seized from them), while those who chose not to be searched would be forced to forgo their constitutional right to remain silent. This Hobson's choice can be avoided only by invalidating such police intrusions whether or not authorized by ordinance and holding fast to the rule of Terry and its progeny: that police acting on less than probable cause may not search, compel answers, or search those who refuse to answer their questions.3
40
The conduct of Detroit police in this case plainly violated Fourth Amendment limitations. The police commanded respondent to relinquish his constitutional right to remain silent and then arrested and searched him when he refused to do so. The Detroit ordinance does not validate that constitutionally impermissible conduct. Accordingly, I would affirm the judgment of the Michigan Court of Appeals invalidating respondent's arrest and suppressing its fruits.
1
As amended, Code of the City of Detroit § 39-1-52.3 provided:
"When a police officer has reasonable cause to believe that the behavior of an individual warrants further investigation for criminal activity, the officer may stop and question such person. It shall be unlawful for any person stopped pursuant to this section to refuse to identify himself, and to produce verifiable documents or other evidence of such identification. In the event that such person is unable to provide reasonable evidence of his true identity, the police officer may transport him to the nearest precinct in order to ascertain his identity."
While holding the ordinance unconstitutional, the Michigan Court of Appeals construed the ordinance to make refusal to identify oneself a crime meriting arrest. 80 Mich.App. 197, 201 n. 1, 262 N.W.2d 921, 923 n. 1 (1977).
The preamble to the amendment indicates that it was enacted in response to an emergency caused by a marked increase in crime, particularly street crime by gangs of juveniles.
2
The woman was arrested on a charge of disorderly conduct; she is not involved in this case.
3
The purpose of the exclusionary rule is to deter unlawful police action. No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found on the person of the respondent, was the product of a lawful arrest and a lawful search. To deter police from enforcing a presumptively valid statute was never remotely in the contemplation of even the most zealous advocate of the exclusionary rule.
4
In terms of the ordinance, § 39-1-52.3 authorizes officers to detain an individual who is "unable to provide reasonable evidence of his true identity." However, the State disclaims reliance on this provision to authorize the arrest of a person who, like respondent, "refuse[s] to identify himself." Tr. of Oral Arg. 5.
1
The Court's reliance upon Pierson v. Ray, 386 U.S., at 555, 87 S.Ct., at 1218, exposes the fallacy of its constitutional analysis. The Court assumes that respondent had a constitutional right to refuse to answer the questions put to him by the police, see ante, at 37, but nonetheless, relying upon Pierson v. Ray, upholds respondent's arrest and search for exercising this constitutional right. But Pierson involved an action for damages against individual police officers and held only that it would be unfair to penalize those officers for actions undertaken in a good-faith, though mistaken interpretation of the Constitution. Since the officer who arrested respondent in this case is not being mulcted for damages or penalized in any way for his actions, Pierson does not support the Court's position. Rather, since respondent is the one who is being penalized for the exercise of what he reasonably believed to be his constitutional rights, Pierson counsels for invalidation of respondent's arrest and not for its validation. For if it is unfair to penalize a police officer for actions undertaken pursuant to a good-faith, though mistaken, interpretation of the Constitution, then surely it is unfair to penalize respondent for actions undertaken pursuant to a good-faith and correct interpretation of the Constitution.
2
In addition to the Fourth Amendment, see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the right to remain silent when detained by police on the basis of suspicion may find its source in the Fifth Amendment's privilege against self-incrimination, see Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Albertson v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), or, more generally, in "the right to be let alone—the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis J., dissenting). See also Griswold v. Connecticut, 381 U.S. 479, 494, 85 S.Ct. 1678, 1687, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring).
3
There is also the risk that if stop-and-identify ordinances cannot be challenged in collateral proceedings they may never be presented for judicial review. Jurisdictions so minded may avoid prosecuting under them and use them merely as investigative tools to gather evidence of other crimes through pretextual arrests and searches. The possibility of such evasion is yet another reason that demonstrates the constitutional error of the Court's approval of respondent's arrest.
| 01
|
443 U.S. 111
99 S.Ct. 2675
61 L.Ed.2d 411
Ronald R. HUTCHINSON, Petitioner,v.William PROXMIRE and Morton Schwartz.
No. 78-680.
Argued April 17, 1979.
Decided June 26, 1979.
Syllabus
Respondent United States Senator publicizes examples of wasteful governmental spending by awarding his "Golden Fleece of the Month Award." One such award was given to federal agencies that had funded petitioner scientist's study of emotional behavior in which he sought an objective measure of aggression, concentrating upon the behavior patterns of certain animals. The award was announced in a speech prepared with the help of respondent legislative assistant, the text of which was incorporated in a widely distributed press release. Subsequently, the award was also referred to in newsletters sent out by the Senator, in a television interview program on which he appeared, and in telephone calls made by the legislative assistant to the sponsoring federal agencies. Petitioner sued respondents in Federal District Court for defamation, alleging, inter alia, that in making the award and publicizing it nationwide, respondents had damaged him in his professional and academic standing. The District Court granted summary judgment for respondents, holding that the Speech or Debate Clause afforded absolute immunity for investigating the funding of petitioner's research, for the speech in the Senate, and for the press release, since it fell within the "informing function" of Congress. The court further held that petitioner was a "public figure" for purposes of determining respondents' liability; that respondents were protected by the First Amendment thereby requiring petitioner to prove "actual malice"; and that based on the depositions, affidavits, and pleadings there was no genuine issue of material fact on the issue of actual malice, neither respondents' failure to investigate nor unfair editing and summarizing being sufficient to establish "actual malice." Finally, the court held that even if petitioner were found to be a "private person," relevant state law required a summary judgment for respondents. The Court of Appeals affirmed, holding that the Speech or Debate Clause protected the statements made in the press release and newsletters and that, although the followup telephone calls and the statements made on television were not protected by that Clause, they were protected by the First Amendment, since petitioner was a "public figure," and that on the record there was no showing of "actual malice." Held:
1. While this Court's practice is to avoid reaching constitutional questions if a dispositive nonconstitutional ground is available, special considerations in this case mandate that the constitutional questions first be resolved. If respondents have immunity under the Speech or Debate Clause, no other questions need be considered. And where it appears that the Court of Appeals would not affirm the District Court's state-law holding so that the appeal could not be decided without reaching the First Amendment issue, that issue will also be reached here. Pp. 122-123.
2. The Speech or Debate Clause does not protect transmittal of information by individual Members of Congress by press releases and newsletters. Pp. 123-133.
(a) There is nothing in the history of the Clause or its language suggesting any intent to create an absolute privilege from liability or suit for defamatory statements made outside the legislative Chambers; precedents support the conclusion that a Member may be held liable for republishing defamatory statements originally made in the Chamber. Pp. 127-130.
(b) Neither the newsletters nor the press release here was "essential to the deliberation of the Senate" and neither was part of the deliberative process. Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583; Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912. P. 2685.
(c) The newsletters and press release were not privileged as part of the "informing function" of Members of Congress to tell the public about their activities. Individual Members' transmittal of information about their activities by press releases and newsletters is not part of the legislative function or the deliberations that make up the legislative process; in contrast to voting and preparing committee reports, which are part of Congress' function to inform itself, newsletters and press releases are primarily means of informing those outside the legislative forum and represent the views and will of a single Member. Doe v. McMillan, supra, distinguished. Pp. 132-133.
3. Petitioner is not a "public figure" so as to make the "actual malice" standard of proof of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, applicable. Neither the fact that local newspapers reported the federal grants to petitioner for his research nor the fact that he had access to the news media as shown by reports of his response to the announcement of the Golden Fleece Award, demonstrates that he was a public figure prior to the controversy engendered by that award. His access, such as it was, came after the alleged libel and was limited to responding to the announcement of the award. Those charged with alleged defamation cannot, by their own conduct, create their own defense by makingthe claimant a public figure. Nor is the concern about public expenditures sufficient to make petitioner a public figure, petitioner at no time having assumed any role of public prominence in the broad question of such concern. Pp. 133-136.
7 Cir., 579 F.2d 1027, reversed and remanded.
Michael E. Cavanaugh, Okemos, Mich., for petitioner.
Alan Raywid, Washington, D. C., for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari, 436 U.S. 1066, 99 S.Ct. 832, 59 L.Ed.2d 31 (1979), to resolve three issues: (1) Whether a Member of Congress is protected by the Speech or Debate Clause of the Constitution, Art. I, § 6, against suits for allegedly defamatory statements made by the Member in press releases and newsletters; (2) whether petitioner Hutchinson is either a "public figure" or a "public official," thereby making applicable the "actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); and (3) whether respondents were entitled to summary judgment.
2
Ronald Hutchinson, a research behavioral scientist, sued respondents, William Proxmire, a United States Senator, and his legislative assistant, Morton Schwartz, for defamation arising out of Proxmire's giving what he called his "Golden Fleece" award. The "award" went to federal agencies that had sponsored Hutchinson's research. Hutchinson alleged that in making the award and publicizing it nationwide, respondents had libeled him, damaging him in his professional and academic standing, and had interfered with his contractual relations. The District Court granted summary judgment for respondents and the Court of Appeals affirmed, 7 Cir., 579 F.2d 1027.
3
We reverse and remand to the Court of Appeals for further proceedings consistent with this opinion.
4
* Respondent Proxmire is a United States Senator from Wisconsin. In March 1975, he initiated the "Golden Fleece of the Month Award" to publicize what he perceived to be the most egregious examples of wasteful governmental spending. The second such award, in April 1975, went to the National Science Foundation, the National Aeronautics and Space Administration, and the Office of Naval Research, for spending almost half a million dollars during the preceding seven years to fund Hutchinson's research.1
5
At the time of the award, Hutchinson was director of research at the Kalamazoo State Mental Hospital. Before that he had held a similar position at the Ft. Custer State Home. Both the hospital and the home are operated by the Michigan State Department of Mental Health; he was therefore a state employee in both positions. During most of the period in question he was also an adjunct professor at Western Michigan University. When the research department at Kalamazoo State Mental Hospital was closed in June 1975, Hutchinson became research director of the Foundation for Behavioral Research, a nonprofit organization. The research funding was transferred from the hospital to the foundation.
6
The bulk of Hutchinson's research was devoted to the study of emotional behavior. In particular, he sought an objective measure of aggression, concentrating upon the behavior patterns of certain animals, such as the clenching of jaws when they were exposed to various aggravating stressful stimuli.2 The National Aeronautics and Space Agency and the Navy were interested in the potential of this research for resolving problems associated with confining humans in close quarters for extended periods of time in space and undersea exploration.
7
The Golden Fleece Award to the agencies that had sponsored Hutchinson's research was based upon research done for Proxmire by Schwartz. While seeking evidence of wasteful governmental spending, Schwartz read copies of reports that Hutchinson had prepared under grants from NASA. Those reports revealed that Hutchinson had received grants from the Office of Naval Research, the National Science Foundation, and the Michigan State Department of Mental Health. Schwartz also learned that other federal agencies had funded Hutchinson's research. After contacting a number of federal and state agencies, Schwartz helped to prepare a speech for Proxmire to present in the Senate on April 18, 1975; the text was then incorporated into an advance press release, with only the addition of introductory and concluding sentences. Copies were sent to a mailing list of 275 members of the news media throughout the United States and abroad.
8
Schwartz telephoned Hutchinson before releasing the speech to tell him of the award; Hutchinson protested that the release contained an inaccurate and incomplete summary of his research. Schwartz replied that he thought the summary was fair.
9
In the speech, Proxmire described the federal grants for Hutchinson's research, concluding with the following comment:3
10
"The funding of this nonsense makes me almost angry enough to scream and kick or even clench my jaw. It seems to me it is outrageous.
11
"Dr. Hutchinson's studies should make the taxpayers as well as his monkeys grind their teeth. In fact, the good doctor has made a fortune from his monkeys and in the process made a monkey out of the American taxpayer.
12
"It is time for the Federal Government to get out of this 'monkey business.' In view of the transparent worthlessness of Hutchinson's study of jaw-grinding and biting by angry or hard-drinking monkeys, it is time we put a stop to the bite Hutchinson and the bureaucrats who fund him have been taking of the taxpayer." 121 Cong.Rec. 10803 (1975).
13
In May 1975, Proxmire referred to his Golden Fleece Awards in a newsletter sent to about 100,000 people whose names were on a mailing list that included constituents in Wisconsin as well as persons in other states. The newsletter repeated the essence of the speech and the press release. Later in 1975, Proxmire appeared on a television interview program where he referred to Hutchinson's research, though he did not mention Hutchinson by name.4
14
The final reference to the research came in a newsletter in February 1976. In that letter, Proxmire summarized his Golden Fleece Awards of 1975. The letter did not mention Hutchinson's name, but it did report:
15
"—The NSF, the Space Agency, and the Office of Naval Research won the 'Golden Fleece' for spending jointly $500,000 to determine why monkeys clench their jaws.
16
* * * * *
17
"All the studies on why monkeys clench their jaws were dropped. No more monkey business." App. 168-171.
18
After the award was announced, Schwartz, acting on behalf of Proxmire, contacted a number of the federal agencies that had sponsored the research. In his deposition he stated that he did not attempt to dissuade them from continuing to fund the research but merely discussed the subject.5 Hutchinson, by contrast, contends that these calls were intended to persuade the agencies to terminate his grants and contracts.
II
19
On April 16, 1976, Hutchinson filed this suit in United States District Court in Wisconsin.6 In Count I he alleges that as a result of the actions of Proxmire and Schwartz he has "suffered a loss of respect in his profession, has suffered injury to his feelings, has been humiliated, held up to public scorn, suffered extreme mental anguish and physical illness and pain to his person. Further, he has suffered a loss of income and ability to earn income in the future." Count II alleges that the respondents' conduct has interfered with Hutchinson's contractual relationships with supporters of his research. He later amended the complaint to add an allegation that his rights of privacy and peace and tranquility have been infringed.
20
Respondents moved for a change of venue and for summary judgment. In their motion for summary judgment they asserted that all of their acts and utterances were protected by the Speech or Debate Clause. In addition, they asserted that their criticism of the spending of public funds was privileged under the Free Speech Clause of the First Amendment. They argued that Hutchinson was both a public figure and a public official, and therefore would be obliged to prove the existence of "actual malice." Respondents contended that the facts of this case would not support a finding of actual malice.
21
Without ruling on venue, the District Court granted respondents' motion for summary judgment. 431 F.Supp. 1311 (W.D.Wis.1977). In so ruling, the District Court relied on both grounds urged by respondents. It reasoned that the Speech or Debate Clause afforded absolute immunity for respondents' activities in investigating the funding of Hutchinson's research, for Proxmire's speech in the Senate, and for the press release covering the speech. The court concluded that the investigations and the speech were clearly within the ambit of the Clause. The press release was said to be protected because it fell within the "informing function" of Congress. To support its conclusion, the District Court relied upon cases interpreting the franking privilege granted to Members by statute. See 39 U.S.C. § 3210.
22
Although the District Court referred to the "informing function" of Congress and to the franking privilege, it did not base its conclusion concerning the press release on those analogies. Instead, the District Court held that the "press release, in a constitutional sense, was no different than would have been a television or radio broadcast of his speech from the Senate floor."7 431 F.Supp., at 1325. That the District Court did not rely upon the "informing function" is clear from its implicit holding that the newsletters were not protected.
23
The District Court then turned to the First Amendment to explain the grant of summary judgment on the claims arising from the newsletters and interviews. It concluded that Hutchinson was a public figure for purposes of determining respondents' liability:
24
"Given Dr. Hutchinson's long involvement with publicly-funded research, his active solicitation of federal and state grants, the local press coverage of his research, and the public interest in the expenditure of public funds on the precise activities in which he voluntarily participated, the court concludes that he is a public figure for the purpose of this suit. As he acknowledged in his deposition, 'Certainly, any expenditure of public funds is a matter of public interest.' " Id., at 1327.8
25
Having reached that conclusion, the District Court relied upon the depositions, affidavits, and pleadings before it to evaluate Hutchinson's claim that respondents had acted with "actual malice." The District Court found that there was no genuine issue of material fact on that issue. It held that neither a failure to investigate nor unfair editing and summarizing could establish "actual malice." It also held that there was nothing in the affidavits or depositions of either Proxmire or Schwartz to indicate that they ever entertained any doubt about the truth of their statements. Relying upon cases from other courts, the District Court said that in determining whether a plaintiff had made an adequate showing of "actual malice," summary judgment might well be the rule rather than the exception. Id., at 1330.9
Finally, the District Court concluded:
26
"But even if for the purpose of this suit it is found that Dr. Hutchinson is a private person so that First Amendment protections do not extend to [respondents], relevant state law dictates the grant of summary judgment." Ibid.
27
The District Court held that the controlling state law was either that of Michigan or that of the District of Columbia. Without deciding which law would govern under Wisconsin's choice-of-law principles, the District Court concluded that Hutchinson would not be able to recover in either jurisdiction.
28
The Court of Appeals affirmed, holding that the Speech or Debate Clause protected the statements made in the press and in the newsletters. 579 F.2d 1027 (CA7 1978). It interpreted Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), as recognizing a limited protection for the "informing function" of Congress and concluded that distribution of both the press release and the newsletters did not exceed what was required for legislative purposes. 579 F.2d at 1033. The followup telephone calls and the statements made by Proxmire on television and radio were not protected by the Speech or Debate Clause; they were, however, held by the Court of Appeals to be protected by the First Amendment.10 It reached that conclusion after first finding that, based on the affidavits and pleadings of record, Hutchinson was a "public figure." Id., at 1034-1035. The court then examined the record to determine whether there had been a showing by Hutchinson of "actual malice." It agreed with the District Court "that, upon this record, there is no question that [respondents] did not have knowledge of the actual or probable 'falsity' of their statements." Id., at 1035. The Court of Appeals also rejected Hutchinson's argument that the District Court had erred in granting summary judgment on the claimed wrongs other than defamation—interference with contractual relations, intentional infliction of emotional anguish, and invasion of privacy:
29
"We view these additional allegations of harm as merely the results of the statements made by the defendants. If the alleged defamatory falsehoods themselves are privileged, it would defeat the privilege to allow recovery for the specified damages which they caused." Id., at 1036 (footnote omitted).11
30
The Court of Appeals did not review the District Court's holding that state law also justified summary judgment for respondents.
III
31
The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue. The constitutional issue arose from the District Court's view that solicitude for the First Amendment required a more hospitable judicial attitude toward granting summary judgment in a libel case. See n. 9, supra. The state-law issue arose because the District Court concluded that, as a matter of local law, Hutchinson could not recover.
32
Our practice is to avoid reaching constitutional questions if a dispositive nonconstitutional ground is available. See, e. g., Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909). Were we to follow that course here we would remand to the Court of Appeals to review the state-law question which it did not consider. If the District Court correctly decided the state-law question, resolution of the First Amendment issue would be unnecessary. We conclude, however, that special considerations in this case mandate that we first resolve the constitutional questions.
33
The purpose of the Speech or Debate Clause is to protect Members of Congress "not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967). See also Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975). If the respondents have immunity under the Clause, no other questions need be considered for they may "not be questioned in any other Place."
34
Ordinarily, consideration of the constitutional issue would end with resolution of the Speech or Debate Clause question. We would then remand for the Court of Appeals to consider the issue of state law. Here, however, there is an indication that the Court of Appeals would not affirm the state-law holding. We surmise this because, in explaining its conclusion that the press release and the newsletters were protected by the Speech or Debate Clause, the Court of Appeals stated: "[T]he statements in the press release intimating that Dr. Hutchinson had made a personal fortune and that the research was 'perhaps duplicative' may be defamatory falsehoods." 579 F.2d, at 1035 n. 15. In light of that surmise, what we said in Wolston v. Reader's Digest, Inc., 443 U.S. 157, at 161 n. 2, 99 S.Ct. 2701, at 2704 n. 2, 61 L.Ed.2d 450, is also appropriate here: "We assume that the Court of Appeals is as familiar as we are with the general principle that dispositive issues of statutory and local law are to be treated before reaching constitutional issues. . . . We interpret the footnote to the Court of Appeals opinion in this case, where jurisdiction is based upon diversity of citizenship, to indicate its view that . . . the appeal could not be decided without reaching the constitutional question." In light of the necessity to do so, we therefore reach the First Amendment issue as well as the Speech or Debate Clause question.
IV
35
In support of the Court of Appeals holding that newsletters and press releases are protected by the Speech or Debate Clause, respondents rely upon both historical precedent and present-day congressional practices. They contend that impetus for the Speech or Debate Clause privilege in our Constitution came from the history of parliamentary efforts to protect the right of members to criticize the spending of the Crown and from the prosecution of a Speaker of the House of Commons for publication of a report outside of Parliament. Respondents also contend that in the modern day very little speech or debate occurs on the floor of either House; from this they argue that press releases and newsletters are necessary for Members of Congress to communicate with other Members. For example, in his deposition Proxmire testified:
36
"I have found in 19 years in the Senate that very often a statement on the floor of the Senate or something that appears in the Congressional Record misses the attention of most members of the Senate, and virtually all members of the House, because they don't read the Congressional Record. If they are handed a news release, or something, that is going to call it to their attention . . .." App., at 220.
37
Respondents also argue that an essential part of the duties of a Member of Congress is to inform constituents, as well as other Members, of the issues being considered.
38
The Speech or Debate Clause has been directly passed on by this Court relatively few times in 190 years. Eastland v. United States Servicemen's Fund, supra; Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); Dombrowski v. Eastland, supra; United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881). Literal reading of the Clause would, of course, confine its protection narrowly to a "Speech or Debate in either House." But the Court has given the Clause a practical rather than a strictly literal reading which would limit the protection to utterances made within the four walls of either Chamber. Thus, we have held that committee hearings are protected, even if held outside the Chambers; committee reports are also protected. Doe v. McMillan, supra; Gravel v. United States, supra. Cf. Coffin v. Coffin, 4 Mass. *1, *27-*28 (1808).
39
The gloss going beyond a strictly literal reading of the Clause has not, however, departed from the objective of protecting only legislative activities. In Thomas Jefferson's view:
40
"[The privilege] is restrained to things done in the House in a Parliamentary course . . . . For [the Member] is not to have privilege contra morem parliamentarium, to exceed the bounds and limits of his place and duty." T. Jefferson, A Manual of Parliamentary Practice 20 (1854), reprinted in The Complete Jefferson 704 (S. Padover ed. 1943).
41
One of the draftsmen of the Constitution, James Wilson, expressed a similar thought in lectures delivered between 1790 and 1792 while he was a Justice of this Court. He rejected Blackstone's statement, 1 W. Blackstone, Commentaries * 164, that Parliament's privileges were preserved by keeping them indefinite:
42
"Very different is the case with regard to the legislature of the United States . . .. The great maxims, upon which our law of parliament is founded, are defined and ascertained in our constitutions. The arcana of privilege, and the arcana of prerogative, are equally unknown to our system of jurisprudence." 2 J. Wilson, Works 35 (J. Andrews ed. 1896).12
43
In this respect, Wilson was underscoring the very purpose of our Constitution—inter alia, to provide written definitions of the powers, privileges, and immunities granted rather than rely on evolving constitutional concepts identified from diverse sources as in English law. Like thoughts were expressed by Joseph Story, writing in the first edition of his Commentaries on the Constitution in 1833:
44
"But this privilege is strictly confined to things done in the course of parliamentary proceedings, and does not cover things done beyond the place and limits of duty." Id., § 863, at 329.
45
Cf. Coffin v. Coffin, supra, at *34.
46
In United States v. Brewster, supra, we acknowledged the historical roots of the Clause going back to the long struggle between the English House of Commons and the Tudor and Stuart monarchs when both criminal and civil processes were employed by Crown authority to intimidate legislators. Yet we cautioned that the Clause
47
"must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system. . . . [T]heir Parliament is the supreme authority, not a coordinate branch. Our speech or debate privilege was designed to preserve legislative independence, not supremacy." 408 U.S., at 508, 92 S.Ct., at 2535.
48
Nearly a century ago, in Kilbourn v. Thompson, supra, 103 U.S., at 204, this Court held that the Clause extended "to things generally done in a session of the House by one of its members in relation to the business before it." (Emphasis added.) More recently we expressed a similar definition of the scope of the Clause:
49
"Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but 'only when necessary to prevent indirect impairment of such deliberations.' " Gravel v. United States,, 408 U.S., at 625, 92 S.Ct., at 2627 (quoting United States v. Doe, 455 F.2d 753, 760 (CA1 1972)) (emphasis added).
50
Cf. Doe v. McMillan, 412 U.S., at 313-314, 317, 93 S.Ct., at 2025, 2027; United States v. Brewster, 408 U.S., at 512, 515-516, 517-518, 92 S.Ct., at 2537, 2538-2539, 2540; Long v. Ansell, 293 U.S. 76, 82, 55 S.Ct. 21, 22, 79 L.Ed. 208 (1934).
51
Whatever imprecision there may be in the term "legislative activities," it is clear that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber. In Brewster, supra, 408 U.S., at 507, 92 S.Ct., at 2535, we observed:
52
"The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators."
53
Claims under the Clause going beyond what is needed to protect legislative independence are to be closely scrutinized. In Brewster we took note of this:
54
"The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from two sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process." 408 U.S., at 517, 92 S.Ct., at 2540 (emphasis added).
55
Indeed, the precedents abundantly support the conclusion that a Member may be held liable for republishing defamatory statements originally made in either House. We perceive no basis for departing from that long-established rule.
56
Mr. Justice Story in his Commentaries, for example, explained that there was no immunity for republication of a speech first delivered in Congress:
57
"Therefore, although a speech delivered in the house of commons is privileged, and the member cannot be questioned respecting it elsewhere; yet, if he publishes his speech, and it contains libellous matter, he is liable to an action and prosecution therefor, as in common cases of libel. And the same principles seem applicable to the privilege of debate and speech in congress. No man ought to have a right to defame others under colour of a performance of the duties of his office. And if he does so in the actual discharge of his duties in congress, that furnishes no reason, why he should be enabled through the medium of the press to destroy the reputation, and invade the repose of other citizens. It is neither within the scope of his duty, nor in furtherance of public rights, or public policy. Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat."13 2 J. Story, Commentaries on the Constitution § 863, p. 329 (1833) (emphasis added).
58
See also L. Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States of America ¶ 604, p. 244 (1st ed. reprint 1971).
59
Story summarized the state of the common law at the time the Constitution was drafted, recalling that Parliament had by then succeeded in its struggle to secure freedom of debate. But the privilege did not extend to republication of libelous remarks even though first made in Parliament. Thus, in King v. Lord Abingdon, 1 Esp. 225, 170 Eng.Rep. 337 (N.P.1794), Lord Chief Justice Kenyon rejected Lord Abingdon's argument that parliamentary privilege protected him from suit for republication of a speech first made in the House of Lords:
60
"[A]s to the words in question, had they been spoken in the House of Lords, and confined to its walls, [the] Court would have had no jurisdiction to call his Lordship before them, to answer for them as an offence; but . . . in the present case, the offence was the publication under his authority and sanction, and at his expense: . . . a member of Parliament had certainly a right to publish his speech, but that speech should not be made the vehicle of slander against any individual; if it was, it was a libel . . .." Id., at 228, 170 Eng.Rep., at 338.
61
A similar result was reached in King v. Creevey, 1 M. & S. 273, 105 Eng.Rep. 102 (K.B.1813).
62
In Gravel v. United States, 408 U.S., at 622-626, 92 S.Ct., at 2625-2628, we recognized that the doctrine denying immunity for republication had been accepted in the United States:
63
"[P]rivate publication by Senator Gravel . . . was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence." Id., at 625, 92 S.Ct., at 2627.
64
We reaffirmed that principle in Doe v. McMillan, 412 U.S., at 314-315, 93 S.Ct., at 2025-2026:
65
"A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report. The reason is that republishing a libel under such circumstances is not an essential part of the legislative process and is not part of that deliberative process 'by which Members participate in committee and House proceedings.' " (Footnote omitted; quoting from Gravel v. United States, supra, 408 U.S., at 625, 92 S.Ct., at 2627.)14
66
We reach a similar conclusion here. A speech by Proxmire in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record. But neither the newsletters nor the press release was "essential to the deliberations of the Senate" and neither was part of the deliberative process.
67
Respondents, however, argue that newsletters and press releases are essential to the functioning of the Senate; without them, they assert, a Senator cannot have a significant impact on the other Senators. We may assume that a Member's published statements exert some influence on other votes in the Congress and therefore have a relationship to the legislative and deliberative process. But in Brewster, 408 U.S., at 512, we rejected respondents' expansive reading of the Clause:
68
"It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include . . . preparing so-called 'news letters' to constituents, news releases, and speeches delivered outside the Congress."
69
There we went on to note that United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), had carefully distinguished between what is only "related to the due functioning of the legislative process," and what constitutes the legislative process entitled to immunity under the Clause:
70
"In stating that those things [Johnson's attempts to influence the Department of Justice] 'in no wise related to the due functioning of the legislative process' were not covered by the privilege, the Court did not in any sense imply as a corollary that everything that 'related' to the office of a Member was shielded by the Clause. Quite the contrary in Johnson we held, citing Kilbourn v. Thompson, supra, that only acts generally done in the course of the process of enacting legislation were protected.
71
* * * * *
72
"In no case has this Court ever treated the Clause as protecting all conduct relating to the legislative process.
73
* * * * *
74
". . . In its narrowest scope, the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander [by speech or debate] and even destroy others with impunity, but that was the conscious choice of the Framers. 408 U.S., at 513-516, 92 S.Ct., at 2538-2539. (Emphasis in original.)
75
We are unable to discern any "conscious choice" to grant immunity for defamatory statements scattered far and wide by mail, press, and the electronic media.
76
Respondents also argue that newsletters and press releases are privileged as part of the "informing function" of Congress. Advocates of a broad reading of the "informing function" sometimes tend to confuse two uses of the term "informing." In one sense, Congress informs itself collectively by way of hearings of its committees. It was in that sense that Woodrow Wilson used "informing" in a statement quoted by respondents. In reality, Wilson's statement related to congressional efforts to learn of the activities of the Executive Branch and administrative agencies; he did not include wide-ranging inquiries by individual Members on subjects of their choice. Moreover, Wilson's statement itself clearly implies a distinction between the informing function and the legislative function:
77
"Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. . . . [T]he only really self-governing people is that people which discusses and interrogates its administration." W. Wilson, Congressional Government 303 (1885).
78
It is in this narrower Wilsonian sense that this Court has employed "informing" in previous cases holding that congressional efforts to inform itself through committee hearings are part of the legislative function.
79
The other sense of the term, and the one relied upon by respondents, perceives it to be the duty of Members to tell the public about their activities. Valuable and desirable as it may be in broad terms, the transmittal of such information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process.15 As a result, transmittal of such information by press releases and newsletters is not protected by the Speech or Debate Clause.
80
Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), is not to the contrary. It dealt only with reports from congressional committees, and held that Members of Congress could not be held liable for voting to publish a report. Voting and preparing committee reports are the individual and collective expressions of opinion within the legislative process. As such, they are protected by the Speech or Debate Clause. Newsletters and press releases, by contrast, are primarily means of informing those outside the legislative forum; they represent the views and will of a single Member. It does not disparage either their value or their importance to hold that they are not entitled to the protection of the Speech or Debate Clause.
V
81
Since New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964),16 this Court has sought to define the accommodation required to assure the vigorous debate on public issues that the First Amendment was designed to protect while at the same time affording protection to the reputations of individuals. E. g., Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). In Gertz v. Robert Welch, Inc., the Court offered a general definition of "public figures":
82
"For the most part those who attain this status [of public figure] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment." 418 U.S. at 345, 94 S.Ct. at 3009.
83
It is not contended that Hutchinson attained such prominence that he is a public figure for all purposes. Instead, respondents have argued that the District Court and the Court of Appeals were correct in holding that Hutchinson is a public figure for the limited purpose of comment on his receipt of federal funds for research projects. That conclusion was based upon two factors: first, Hutchinson's successful application for federal funds and the reports in local newspapers of the federal grants; second, Hutchinson's access to the media, as demonstrated by the fact that some newspapers and wire services reported his response to the announcement of the Golden Fleece Award. Neither of those factors demonstrates that Hutchinson was a public figure prior to the controversy engendered by the Golden Fleece Award; his access, such as it was, came after the alleged libel.
84
On this record, Hutchinson's activities and public profile are much like those of countless members of his profession. His published writings reach a relatively small category of professionals concerned with research in human behavior. To the extent the subject of his published writings became a matter of controversy, it was a consequence of the Golden Fleece Award. Clearly, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. See Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157, 167-168, 99 S.Ct. 2701, 2708, 61 L.Ed.2d 450.
85
Hutchinson did not thrust himself or his views into public controversy to influence others. Respondents have not identified such a particular controversy; at most, they point to concern about general public expenditures. But that concern is shared by most and relates to most public expenditures; it is not sufficient to make Hutchinson a public figure. If it were, everyone who received or benefited from the myriad public grants for research could be classified as a public figure—a conclusion that our previous opinions have rejected. The "use of such subject-matter classifications to determine the extent of constitutional protection afforded defamatory falsehoods may too often result in an improper balance between the competing interests in this area." Time, Inc. v. Firestone, supra, 424 U.S., at 456, 96 S.Ct., at 966.
86
Moreover, Hutchinson at no time assumed any role of public prominence in the broad question of concern about expenditures. Neither his applications for federal grants nor his publications in professional journals can be said to have invited that degree of public attention and comment on his receipt of federal grants essential to meet the public figure level. The petitioner in Gertz v. Robert Welch, Inc., had published books and articles on legal issues; he had been active in local community affairs. Nevertheless, the Court concluded that his activities did not make him a public figure.
87
Finally, we cannot agree that Hutchinson had such access to the media that he should be classified as a public figure. Hutchinson's access was limited to responding to the announcement of the Golden Fleece Award. He did not have the regular and continuing access to the media that is one of the accouterments of having become a public figure.
88
We therefore reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals for further proceedings consistent with this opinion.
89
Reversed and remanded.
90
Mr. Justice STEWART joins in all but footnote 10 of the Court's opinion. He cannot agree that the question whether a communication by a Congressman or a member of his staff with a federal agency is entitled to Speech or Debate Clause immunity depends upon whether the communication is defamatory. Because telephone calls to federal agency officials are a routine and essential part of the congressional oversight function, he believes such activity is protected by the Speech or Debate Clause.
91
Mr. Justice BRENNAN, dissenting.
92
I disagree with the Court's conclusion that Senator Proxmire's newsletters and press releases fall outside the protection of the speech-or-debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States, 408 U.S. 606, 648, 92 S.Ct. 2614, 2637, 33 L.Ed.2d 583 (1972).
1
There is disagreement over the actual total. The speech said the total was "over $500,000." In preparation for trial, both sides have offered higher estimates of the total amount.
2
Reports of Hutchinson's research were published in scientific journals. The research is not unlike the studies of primates reported in less technical periodicals such as the National Geographic. E. g., Fossey, More Years with Mountain Gorillas, 140 National Geographic 574 (1971); Galdikas-Brindamour, Orangutans, Indonesia's "People of the Forest," 148 National Geographic 444 (1975); Goodall, Life and Death at Gombe, 155 National Geographic 592 (1979); Goodall, My Life Among Wild Chimpanzees, 124 National Geographic 272 (1963); Strum, Life With the "Pumphouse Gang": New Insights into Baboon Behavior, 147 National Geographic 672 (1975).
3
Proxmire is not certain that he actually delivered the speech on the Senate floor. He said that he might have merely inserted it into the Congressional Record. App. 220-221. In light of that uncertainty, the question arises whether a nondelivered speech printed in the Congressional Record is covered by the Speech or Debate Clause. This Court has never passed on that question and neither the District Court nor the Court of Appeals seemed to think it was important. Nevertheless, we assume, without deciding, that a speech printed in the Congressional Record carries immunity under the Speech or Debate Clause as though delivered on the floor.
4
The parties agree that Proxmire referred to research like Hutchinson's on at least one television show. They do not agree whether there were other appearances on either radio or television. Hutchinson has suggested that there were others and has produced affidavits to support his suggestion. Proxmire cannot recall any others.
5
Senate Resolution 543, 94th Cong., 2d Sess. (1976), authorized respondents and an additional member of Proxmire's staff to give deposition testimony. 122 Cong.Rec. 29876 (1976).
6
On April 13, 1976, Hutchinson had written to Proxmire requesting that he retract certain erroneous statements made in the 1975 press release.
7
Of course, in light of Proxmire's uncertainty, see n. 3, supra, there is no assurance that there even was a speech on the Senate floor.
8
The District Court also concluded that Hutchinson was a "public official." 431 F.Supp., at 1327-1328. The Court of Appeals did not decide whether that conclusion was correct. 579 F.2d 1027, 1035 n. 14 (CA7 1978). We therefore express no opinion on the issue. The Court has not provided precise boundaries for the category of "public official"; it cannot be thought to include all public employees, however.
9
Considering the nuances of the issues raised here, we are constrained to express some doubt about the so-called "rule." The proof of "actual malice" calls a defendant's state of mind into question, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and does not readily lend itself to summary disposition. See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2730, pp. 590-592 (1973). Cf. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). In the present posture of the case, however, the propriety of dealing with such complex issues by summary judgment is not before us.
10
Respondents did not cross petition; neither did they argue that the Speech or Debate Clause protected the followup telephone calls made by Schwartz to governmental agencies or the television and radio interviews of Proxmire. Instead, respondents relied only upon the protection afforded by the First Amendment. In light of our conclusion, infra, that Hutchinson is not a public figure, rpAe
| 23
|
443 U.S. 157
99 S.Ct. 2701
61 L.Ed.2d 450
Ilya WOLSTON, Petitioner,v.READER'S DIGEST ASSOCIATION, INC., et al.
No. 78-5414.
Argued April 17, 1979.
Decided June 26, 1979.
Syllabus
As a result of a grand jury investigation, during 1957 and 1958, of Soviet intelligence agents in the United States, petitioner's aunt and uncle were arrested on, and later pleaded guilty to, espionage charges. In the ensuing months, petitioner, pursuant to grand jury subpoenas, traveled from his home in the District of Columbia to New York City, where the grand jury was sitting, but on one occasion he failed to respond to a subpoena, having previously attempted unsuccessfully to persuade law enforcement authorities not to require him to travel because of his mental condition. A Federal District Judge then issued an order to show cause why petitioner should not be adjudged in criminal contempt of court. Petitioner appeared in court on the return date of this order and offered to testify before the grand jury but the offer was refused, and thereafter he pleaded guilty to the contempt charge when his pregnant wife became hysterical upon being called to testify as to his mental condition. Petitioner received a suspended sentence. These events were reported in a number of stories in the Washington and New York newspapers, but the publicity subsided following petitioner's sentencing and he succeeded for the most part in returning to the private life he had led prior to such events. In 1974, respondent Reader's Digest Association published a book written by respondent Barron, which describes the Soviet Union's espionage organization and chronicles its activities since World War II. The book was later published by the other respondent publishers. In one passage in the book, petitioner is named as "[a]mong Soviet agents identified in the United States" and "convicted of . . . contempt charges following espionage indictments," and the index lists petitioner as a "Soviet agent in U. S." Petitioner sued respondents, claiming that the above passages in the book were false and defamatory. The District Court granted respondents' motion for summary judgment, holding that petitioner was a "public figure" because, by failing to appear before the grand jury and subjecting himself to a citation for contempt, he "became involved in a controversy of a decidedly public nature in a way that invited attention and comment, and thereby created in the public an interest in knowing about his connection with espionage"; that the First Amendment therefore precluded recovery unless petitioner proved that respondents had published a defamatory falsehood with "actual malice"; and that the evidence raised no genuine issue with respect to the existence of "actual malice." The Court of Appeals affirmed.
Held : Petitioner was not a public figure within the meaning of this Court's defamation cases and therefore was not required by the First Amendment to meet the "actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, in order to recover from respondents. Pp. 163-169.
(a) Contrary to respondents' argument and the lower court's holdings, petitioner does not fall within the category of those public figures who have "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved," Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789. Neither the mere fact that petitioner voluntarily chose not to appear before the grand jury, knowing that this might be attended by publicity, the citation for contempt, nor the simple fact that his failure to appear and the contempt citation attracted media attention, rendered him such a public figure. His failure to appear was in no way calculated to draw attention to himself in order to invite public comment or influence the public with respect to any issue, but rather appears simply to have been the result of his poor health. And there is no evidence that his failure to appear was intended to have, or did in fact have, any effect on any issue of public concern. Pp. 165-168.
(b) A person who engages in criminal conduct does not automatically become a public figure for purposes of comment on a limited range of issues relating to his conviction. Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154. To hold otherwise would create an "open season" for all who sought to defame persons convicted of a crime. Pp. 168-168.
188 U.S.App.D.C. 185, 578 F.2d 427, reversed.
Sidney Dickstein, Washington, D. C., for petitioner.
John J. Buckley, Jr., Washington, D. C., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
In 1974, respondent Reader's Digest Association, Inc., published a book entitled KGB, the Secret Work of Soviet Agents (KGB), written by respondent John Barron.1 The book describes the Soviet Union's espionage organization and chronicles its activities since World War II. In a passage referring to disclosures by "royal commissions in Canada and Australia, and official investigations in Great Britain and the United States," the book contains the following statements relating to petitioner Ilya Wolston:
2
"Among Soviet agents identified in the United States were Elizabeth T. Bentley, Edward Joseph Fitzgerald, William Ludwig Ullmann, William Walter Remington, Franklin Victor Reno, Judith Coplon, Harry Gold, David Greenglass, Julius and Ethel Rosenberg, Morton Sobell, William Perl, Alfred Dean Slack, Jack Soble, Ilya Wolston, Alfred and Martha Stern.*
3
"*No claim is made that this list is complete. It consists of Soviet agents who were convicted of espionage or falsifying information or perjury and/or contempt charges following espionage indictments, or who fled to the Soviet bloc to avoid prosecution. . . . " App. 28 (emphasis supplied).
4
In addition, the index to KGB lists petitioner as follows: "Wolston, Ilya, Soviet agent in U.S." Id., at 29.
5
Petitioner sued the author and publishers of KGB in the United States District Court for the District of Columbia, claiming that the passages in KGB stating that he had been indicted for espionage and had been a Soviet agent were false and defamatory. The District Court granted respondents' motion for summary judgment. 429 F.Supp. 167 (1977). The court held that petitioner was a "public figure" and that the First Amendment therefore precluded recovery unless petitioner proved that respondents had published a defamatory falsehood with " 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not," New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). 429 F.Supp., at 172, 176. While the District Court agreed that the above-quoted portions of KGB appeared to state falsely that petitioner had been indicted for espionage, it ruled, on the basis of affidavits and deposition testimony, that the evidence raised no genuine issue with respect to the existence of "actual malice" on the part of respondents. Id., at 180-181. The Court of Appeals for the District of Columbia Circuit affirmed. 188 U.S.App.D.C. 185, 578 F.2d 427 (1978).2 We granted certiorari, 439 U.S. 1066, 99 S.Ct. 832, 59 L.Ed.2d 31 (1979), and we now reverse. We hold that the District Court and the Court of Appeals were wrong in concluding that petitioner was a public figure within the meaning of this Court's defamation cases. Petitioner therefore was not required by the First Amendment to meet the "actual malice" standard of New York Times Co. v. Sullivan, supra, in order to recover from respondents.3
6
During 1957 and 1958, a special federal grand jury sitting in New York City conducted a major investigation into the activities of Soviet intelligence agents in the United States. As a result of this investigation, petitioner's aunt and uncle, Myra and Jack Soble, were arrested in January 1957 on charges of spying. The Sobles later pleaded guilty to espionage charges, and in the ensuing months, the grand jury's investigation focused on other participants in a suspected Soviet espionage ring, resulting in further arrests, convictions, and guilty pleas. On the same day the Sobles were arrested, petitioner was interviewed by agents of the Federal Bureau of Investigation at his home in the District of Columbia.4 Petitioner was interviewed several more times during the following months in both Washington and in New York City and traveled to New York on various occasions pursuant to grand jury subpoenas.
7
On July 1, 1958, however, petitioner failed to respond to a grand jury subpoena directing him to appear on that date. Petitioner previously had attempted to persuade law enforcement authorities not to require him to travel to New York for interrogation because of his state of mental depression. App. 91 (affidavit of petitioner, June 15, 1976).5 On July 14, a Federal District Judge issued an order to show cause why petitioner should not be held in criminal contempt of court. These events immediately attracted the interest of the news media, and on July 15 and 16, at least seven news stories focusing on petitioner's failure to respond to the grand jury subpoena appeared in New York and Washington newspapers.
8
Petitioner appeared in court on the return date of the show-cause order and offered to testify before the grand jury, but the offer was refused. A hearing then commenced on the contempt charges. Petitioner's wife, who then was pregnant, was called to testify as to petitioner's mental condition at the time of the return date of the subpoena, but after she became hysterical on the witness stand, petitioner agreed to plead guilty to the contempt charge. See App. 92 (affidavit of petitioner, June 15, 1976). He received a 1-year suspended sentence and was placed on probation for three years, conditioned on his cooperation with the grand jury in any further inquiries regarding Soviet espionage. Ibid. Newspapers also reported the details of the contempt proceedings and petitioner's guilty plea and sentencing. In all, during the 6-week period between petitioner's failure to appear before the grand jury and his sentencing, 15 stories in newspapers in Washington and New York mentioned or discussed these events. This flurry of publicity subsided following petitioner's sentencing, however, and, thereafter, he succeeded for the most part in returning to the private life he had led prior to issuance of the grand jury subpoena. 429 F.Supp., at 174.6 At no time was petitioner indicted for espionage.
9
In New York Times Co. v. Sullivan, 376 U.S., at 279-280, 84 S.Ct., at 275-276, the Court held that the First and Fourteenth Amendments prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct absent proof that the statement was made with "actual malice," as that term is defined in that opinion. See also St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Three years later, the Court extended the New York Times standard to "public figures." Curtis Publishing Co. v. Butts, 388 U.S. 130, 162, 87 S.Ct. 1975, 1995, 18 L.Ed.2d 1094 (1967) (Warren, C.J., concurring in result). But in Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-347, 94 S.Ct. 2997, 3009-3010, 41 L.Ed.2d 789 (1974), we declined to expand the protection afforded by that standard to defamation actions brought by private individuals. We explained in Gertz that the rationale for extending the New York Times rule to public figures was two-fold. First, we recognized that public figures are less vulnerable to injury from defamatory statements because of their ability to resort to effective "self-help." They usually enjoy significantly greater access than private individuals to channels of effective communication, which enable them through discussion to counter criticism and expose the falsehood and fallacies of defamatory statements. 418 U.S., at 344, 94 S.Ct., at 3009; see Curtis Publishing Co. v. Butts, 388 U.S., at 155, 87 S.Ct., at 1991 (plurality opinion); id., at 164, 87 S.Ct., at 1996 (Warren, C. J., concurring in result). Second, and more importantly, was a normative consideration that public figures are less deserving of protection than private persons because public figures, like public officials, have "voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them." 418 U.S., at 345, 94 S.Ct., at 3010; see Curtis Publishing Co. v. Butts, supra, 388 U.S., at 164, 87 S.Ct., at 1996 (Warren, C. J., concurring in result). We identified two ways in which a person may become a public figure for purposes of the First Amendment:
10
"For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." 418 U.S., at 345, 94 S.Ct., at 3009.
11
See id., at 351, 94 S.Ct., at 3012; Time, Inc. v. Firestone, 424 U.S. 448, 453, 96 S.Ct. 958, 964, 47 L.Ed.2d 154 (1976).
12
Neither respondents nor the lower courts relied on any claim that petitioner occupied a position of such "persuasive power and influence" that he could be deemed one of that small group of individuals who are public figures for all purposes. Petitioner led a thoroughly private existence prior to the grand jury inquiry and returned to a position of relative obscurity after his sentencing. He achieved no general fame or notoriety and assumed no role of special prominence in the affairs of society as a result of his contempt citation or because of his involvement in the investigation of Soviet espionage in 1958. See Time, Inc. v. Firestone, supra, at 453, 96 S.Ct., at 964; Gertz v. Robert Welch, Inc., supra, 418 U.S., at 352, 94 S.Ct., at 3012.
13
Instead, respondents argue, and the lower courts held, that petitioner falls within the second category of public figures those who have "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved"—and that, therefore, petitioner is a public figure for the limited purpose of comment on his connection with, or involvement in, Soviet espionage in the 1940's and 1950's. 188 U.S.App.D.C., at 189, 578 F.2d, at 431; 429 F.Supp., at 174-178. Both lower courts found petitioner's failure to appear before the grand jury and citation for contempt determinative of the public-figure issue. The District Court concluded that by failing to appear before the grand jury and subjecting himself to a citation for contempt, petitioner "became involved in a controversy of a decidedly public nature in a way that invited attention and comment, and thereby created in the public an interest in knowing about his connection with espionage . . . ." Id., at 177 n. 33. Similarly, the Court of Appeals stated that by refusing to comply with the subpoena, petitioner "stepped center front into the spotlight focused on the investigation of Soviet espionage. In short, by his voluntary action he invited attention and comment in connection with the public questions involved in the investigation of espionage." 188 U.S.App.D.C., at 189, 578 F.2d, at 431.
14
We do not agree with respondents and the lower courts that petitioner can be classed as such a limited-purpose public figure.7 First, the undisputed facts do not justify the conclusion of the District Court and Court of Appeals that petitioner "voluntarily thrust" or "injected" himself into the forefront of the public controversy surrounding the investigation of Soviet espionage in the United States.8 See Time, Inc. v. Firestone, supra, 424 U.S., at 453-454, 96 S.Ct., at 964-965; Gertz v. Robert Welch, Inc., supra, 418 U.S., at 352, 94 S.Ct., at 3013; Curtis Publishing Co. v. Butts, supra, 388 U.S., at 155, 87 S.Ct., at 1991 (plurality opinion). It would be more accurate to say that petitioner was dragged unwillingly into the controversy. The Government pursued him in its investigation. Petitioner did fail to respond to a grand jury subpoena, and this failure, as well as his subsequent citation for contempt, did attract media attention. But the mere fact that petitioner voluntarily chose not to appear before the grand jury, knowing that his action might be attended by publicity, is not decisive on the question of public-figure status. In Gertz, we held that an attorney was not a public figure even though he voluntarily associated himself with a case that was certain to receive extensive media exposure. 418 U.S., at 352, 94 S.Ct., at 3013. We emphasized that a court must focus on the "nature and extent of an individual's participation in the particular controversy giving rise to the defamation." Ibid. In Gertz, the attorney took no part in the criminal prosecution, never discussed the litigation with the press, and limited his participation in the civil litigation solely to his representation of a private client. Ibid. Similarly, petitioner never discussed this matter with the press and limited his involvement to that necessary to defend himself against the contempt charge. It is clear that petitioner played only a minor role in whatever public controversy there may have been concerning the investigation of Soviet espionage. We decline to hold that his mere citation for contempt rendered him a public figure for purposes of comment on the investigation of Soviet espionage.
15
Petitioner's failure to appear before the grand jury and citation for contempt no doubt were "newsworthy," but the simple fact that these events attracted media attention also is not conclusive of the public-figure issue. A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention. To accept such reasoning would in effect re-establish the doctrine advanced by the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), which concluded that the New York Times standard should extend to defamatory falsehoods relating to private persons if the statements involved matters of public or general concern. We repudiated this proposition in Gertz and in Firestone, however, and we reject it again today. A libel defendant must show more than mere newsworthiness to justify application of the demanding burden of New York Times. See Time, Inc. v. Firestone, 424 U.S., at 454, 96 S.Ct., at 965.
16
Nor do we think that petitioner engaged the attention of the public in an attempt to influence the resolution of the issues involved. Petitioner assumed no "special prominence in the resolution of public questions." See Gertz v. Robert Welch, Inc., 418 U.S., at 351, 94 S.Ct., at 3012. His failure to respond to the grand jury's subpoena was in no way calculated to draw attention to himself in order to invite public comment or influence the public with respect to any issue. He did not in any way seek to arouse public sentiment in his favor and against the investigation. Thus, this is not a case where a defendant invites a citation for contempt in order to use the contempt citation as a fulcrum to create public discussion about the methods being used in connection with an investigation or prosecution. To the contrary, petitioner's failure to appear before the grand jury appears simply to have been the result of his poor health. 429 F.Supp., at 177 n. 33; App. 91-92 (affidavit of petitioner, June 15, 1976). He then promptly communicated his desire to testify and, when the offer was rejected, passively accepted his punishment. There is no evidence that petitioner's failure to appear was intended to have, or did in fact have, any effect on any issue of public concern. In short, we find no basis whatsoever for concluding that petitioner relinquished, to any degree, his interest in the protection of his own name.
17
This reasoning leads us to reject the further contention of respondents that any person who engages in criminal conduct automatically becomes a public figure for purposes of comment on a limited range of issues relating to his conviction. Brief for Respondents 24; Tr. of Oral Arg. 15, 17. We declined to accept a similar argument in Time, Inc. v. Firestone, supra, 424 U.S., at 457, 96 S.Ct., at 966-67, where we said:
18
"[W]hile participants in some litigation may be legitimate 'public figures,' either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others. There appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom. The public interest in accurate reports of judicial proceedings is substantially protected by Cox Broadcasting Co. [v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975)]. As to inaccurate and defamatory reports of facts, matters deserving no First Amendment protection . . . , we think Gertz provides an adequate safeguard for the constitutionally protected interests of the press and affords it a tolerable margin for error by requiring some type of fault."
19
We think that these observations remain sound, and that they control the disposition of this case. To hold otherwise would create an "open season" for all who sought to defame persons convicted of a crime.
20
Accordingly, the judgment of the Court of Appeals is
21
Reversed.
22
Mr. Justice BLACKMUN, with whom Mr. Justice MARSHALL joins, concurring in the result.
23
I agree that petitioner is not a "public figure" for purposes of this case. The Court reaches this conclusion by reasoning that a prospective public figure must enter a controversy "in an attempt to influence the resolution of the issues involved," ante, at 168, and that petitioner failed to act in that manner purposefully here. The Court seems to hold, in other words, that a person becomes a limited-issue public figure only if he literally or figuratively "mounts a rostrum" to advocate a particular view.
24
I see no need to adopt so restrictive a definition of "public figure" on the facts before us. Assuming, arguendo, that petitioner gained public-figure status when he became involved in the espionage controversy in 1958, he clearly had lost that distinction by the time respondents published KGB in 1974. Because I believe that the lapse of the intervening 16 years renders consideration of this petitioner's original public-figure status unnecessary, I concur only in the result.*
25
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), this Court held that a person may become a public figure for a limited range of issues if he "voluntarily injects himself or is drawn into a particular public controversy." Id., at 351, 94 S.Ct., at 3013. Such a person, the Court reasoned, resembles a public official in that he typically enjoys "significantly greater access to the channels of effective communication" and knowingly "runs the risk of closer public scrutiny" than would have been true had he remained in private life. Id., at 344, 94 S.Ct., at 3009. The passage of time, I believe, often will be relevant in deciding whether a person possesses these two public-figure characteristics. First, a lapse of years between a controversial event and a libelous utterance may diminish the defamed party's access to the means of counterargument. At the height of the publicity surrounding the espionage controversy here, petitioner may well have had sufficient access to the media effectively to rebut a charge that he was a Soviet spy. It would strain credulity to suggest that petitioner could have commanded such media interest when respondents published their book in 1974. Second, the passage of time may diminish the "risk of public scrutiny" that a putative public figure may fairly be said to have assumed. In ignoring the grand jury subpoena in 1958, petitioner may have anticipated that his conduct would invite critical commentary from the press. Following the contempt citation, however, petitioner "succeeded for the most part in returning to . . . private life." Ante, at 163. Any inference that petitioner "assumed the risk" of public scrutiny in 1958 assuredly is negated by his conscious efforts to regain anonymity during the succeeding 16 years.
26
This analysis implies, of course, that one may be a public figure for purposes of contemporaneous reporting of a controversial event, yet not be a public figure for purposes of historical commentary on the same occurrence. Historians, consequently, may well run a greater risk of liability for defamation. Yet this result, in my view, does no violence to First Amendment values. While historical analysis is no less vital to the marketplace of ideas than reporting current events, historians work under different conditions than do their media counterparts. A reproter trying to meet a deadline may find it totally impossible to check thoroughly the accuracy of his sources. A historian writing sub specie aeternitatis has both the time for reflection and the opportunity to investigate the veracity of the pronouncements he makes.
27
For these reasons, I conclude that the lapse of 16 years between petitioner's participation in the espionage controversy and respondents' defamatory reference to it was sufficient to erase whatever public-figure attributes petitioner once may have possessed. Because petitioner clearly was a private individual in 1974, I see no need to decide the more difficult question whether he was a public figure in 1958.
28
Mr. Justice BRENNAN, dissenting.
29
I dissent. I agree with the holding of the District Court, 429 F.Supp. 167, 176 (1977), affirmed by the Court of Appeals, 188 U.S.App.D.C. 185, 189, 578 F.2d 427, 431 (1978), that petitioner qualified "as a public figure for the limited purpose of comment on his connection with, or involvement in, espionage in the 1940's and '50's." I further agree with the holding of the District Court, 429 F.Supp., at 178, affirmed by the Court of Appeals, 188 U.S.App.D.C., at 189, 578 F.2d, at 431, that petitioner also qualified as a public figure in 1974. That conclusion follows, in my view, for the reasons stated by the Court of Appeals, ibid., 578 F.2d, at 431: "The issue of Soviet espionage in 1958 and of Wolston's involvement in that operation continues to be a legitimate topic of debate today, for that matter concerns the security of the United States. The mere lapse of time is not decisive."
30
I disagree, however, with the holding of the District Court, affirmed by the Court of Appeals, that respondent Barron was entitled to summary judgment. In my view the evidence raised a genuine issue of fact respecting the existence of actual malice on his part. I would therefore reverse the judgment of the Court of Appeals and remand to the District Court for trial of that issue.
1
Respondents Bantam Books, Inc., MacMillan Book Clubs, Inc., and Book-of-the-Month Club, Inc., are subsequent publishers of KGB under contractual arrangements with Reader's Digest.
2
Both the District Court and the Court of Appeals rested their decisions on the First Amendment to the United States Constitution. The District Court commented in a footnote that it "might also have decided to apply the actual-malice standard in this case on the ground that the law in the District of Columbia requires it." 429 F.Supp., at 178-179, n.37. The court referred to an unpublished decision of the Superior Court of the District of Columbia as support for that proposition. Hatter v. Evening Star Newspaper Co., Civ. No. 8298-75 (Mar. 15, 1975). But the Court of Appeals in a footnote to its opinion cast substantial doubt on the correctness of the District Court's comment. See 188 U.S.App.D.C., at 193, n.3, 578 F.2d, at 435 n. 3. It described Hatter as "a brief unpublished order which recited several other grounds for granting summary judgment" and which cited no District of Columbia authority, and it noted that subsequent to the District Court's decision, another judge of the District of Columbia Superior Court had "filed an elaborate opinion which concluded to the contrary that in the District a newspaper may be liable for actual damages suffered by a private person if it negligently publishes defamation, without actual malice." 188 U.S.App.D.C., at 193 n.3, 578 F.2d, at 435 n.3, citing Phillips v. Evening Star Newspaper Co., Civ. No. 9999-75 (June 30, 1977). We assume that the Court of Appeals is as familiar as we are with the general principle that dispositive issues of statutory and local law are to be treated before reaching constitutional issues. E. g., Dillard v. Virginia Industrial Comm'n, 416 U.S. 783, 785, 94 S.Ct. 2028, 2030, 40 L.Ed.2d 540 (1974); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136, 67 S.Ct. 231, 233, 91 L.Ed. 128 (1946); Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909). We interpret the footnote to the Court of Appeals' opinion in this case, where jurisdiction is based upon diversity of citizenship, to indicate its view that Phillips represents a more accurate expression of District of Columbia law than the dicta from Hatter and that, therefore, the appeal could not be decided without reaching the constitutional question. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967); King v. Order of Travelers, 333 U.S. 153, 162, 68 S.Ct. 488, 493, 92 L.Ed. 608 (1948); West v. American Tel. & Tel. Co., 311 U.S. 223, 236-237 (1940); Washington Times Co. v. Bonner, 66 App.D.C. 280, 86 F.2d 836 (1936); Johnson v. Johnson Pub. Co., 271 A.2d 696 (D.C.App.1970); Chaloner v. Washington Post Co., 36 App.D.C. 231 (1911).
3
Petitioner also challenges the propriety of summary judgment on the issue of "actual malice." Brief for Petitioner 21-31. In view of our disposition of the public-figure issue, we need not and do not reach this question. See generally Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9, 99 S.Ct. 2675, 2680 n.9, 61 L.Ed.2d 411.
4
"Wolston was born in Russia in 1918. He subsequently lived in Lithuania, Germany, France, and England before coming to the United States in 1939. The army drafted him in 1942, and during his tour of duty he became a naturalized citizen; he was trained as an interpreter and served primarily in Alaska. After receiving an honorable discharge in 1946 he worked as an interpreter for the United States Military Government and the State Department in Allied-occupied Berlin. He returned to the United States in 1951 and worked as a clerk until 1953, when he enrolled in an undergraduate program at New York University. In 1955 he and his wife moved to Washington, D. C., where he worked several months for the Army Map Service and then as a free-lance translator until January 1957. Deposition of Ilya Wolston at 5-42." 429 F.Supp., at 169 n. 1.
5
Since this case was decided on respondents' motion for summary judgment, we must construe the record most favorably to petitioner. E. g., Bishop v. Wood, 426 U.S. 341, 347 n. 11, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).
6
A short time after these events, petitioner was mentioned in two publications. In the book My Ten Years as a Counterspy, written by Boris Morros and published in 1959, Morros, a former confederate of Jack Soble who later became a double agent, states that Soble identified petitioner as a Soviet agent. App. 30-34. And in 1960, a report prepared by the Federal Bureau of Investigation, entitled Expose of Soviet Espionage May 1960, listed petitioner's name among people "the FBI investigation resulted in identifying as Soviet intelligence agents." Sen. Doc. No. 114, 86th Cong., 2d Sess., 24, 26-27 (1960).
7
Both lower courts found that petitioner became a public figure at the time of his contempt citation in 1958. See 188 U.S.App.D.C., at 189, 578 F.2d, at 431; 429 F.Supp., at 176-177. Petitioner argued below that even if he was once a public figure, the passage of time has restored him to the status of a private figure for purposes of the First Amendment. Both the District Court and the Court of Appeals rejected this argument. 188 U.S.App.D.C., at 189, 578 F.2d, at 431; 429 F.Supp., at 178. And petitioner has abandoned the argument in this Court. Reply Brief for Petitioner 5-6, n. 8; Tr. of Oral Arg. 10. Because petitioner does not press the issue in this Court and because we conclude that petitioner was not a public figure in 1958, we need not and do not decide whether or when an individual who was once a public figure may lose that status by the passage of time.
8
It is difficult to determine with precision the "public controversy" into which petitioner is alleged to have thrust himself. Certainly, there was no public controversy or debate in 1958 about the desirability of permitting Soviet espionage in the United States; all responsible United States citizens understandably were and are opposed to it. Respondents urge, and the Court of Appeals apparently agreed, that the public controversy involved the propriety of the actions of law enforcement officials in investigating and prosecuting suspected Soviet agents. 188 U.S.App.D.C., at 189, 578 F.2d, at 431; Brief for Respondents 26-27; Tr. of Oral Arg. 27-29. We may accept, arguendo, respondents' characterization of the "public controversy" involved in this case, for it is clear that petitioner fails to meet the other criteria established in Gertz for public-figure status.
*
The Court notes, ante, at 166 n. 7, that petitioner at oral argument here disclaimed the contention that the passage of time had restored him to private status, electing to place all his eggs in the more expansive basket that forms the framework of the Court's opinion. Petitioner proffered this contention in both the District Court and the Court of Appeals, however, and both courts expressly considered it. 429 F.Supp. 167, 178 (1977); 188 U.S.App.D.C. 185, 189, 578 F.2d 427, 431 (1978). Under these circumstances, petitioner's tactical decision does not foreclose the "passage of time" rationale as a ratio decidendi. Indeed, petitioner makes the related argument that, if he should be deemed a public figure, the passage of time would be relevant in determining whether respondents' failure to investigate amounted in this case to "actual malice." Reply Brief for Petitioner 5-6, n. 8; Tr. of Oral Arg. 10-12.
| 23
|
443 U.S. 173
99 S.Ct. 2710
61 L.Ed.2d 464
David H. LEROY, Attorney General of Idaho, et al., Appellants,v.GREAT WESTERN UNITED CORPORATION.
No. 78-759.
Argued April 17, 1979.
Decided June 26, 1979.
Syllabus
After publicly announcing its intent to make a tender offer to purchase shares of stock of a company having substantial assets in Idaho, appellee, a Texas-based corporation which is also engaged in business in New York and Maryland, filed the informational schedule with the Securities and Exchange Commission required by the Securities Exchange Act of 1934 (1934 Act), as amended by the Williams Act, and also filed documents in Idaho in an attempt to satisfy that State's takeover statute. When Idaho officials objected to the filing and delayed the effective date of the tender offer, appellee brought an action in the Federal District Court for the Northern District of Texas against the officials responsible for enforcing Idaho's takeover law, seeking a declaration that the state law was invalid insofar as it purported to apply to interstate tender offers to purchase securities traded on a national exchange. The District Court held that personal jurisdiction over the Idaho defendants had been obtained under the Texas long-arm statute, and that venue could be sustained under the special venue provision in § 27 of the 1934 Act giving federal district courts exclusive jurisdiction of actions brought to enforce "any liability or duty created" by the Act. The court then went on to hold that the Idaho takeover statute was pre-empted by the Williams Act and placed an impermissible burden on interstate commerce. The Court of Appeals affirmed, holding, inter alia, that venue was authorized by § 27 of the 1934 Act, because Idaho's enforcement attempt, by conflicting with the Williams Act, constituted a violation of a "duty" imposed by § 28(a) of the 1934 Act (which provides that nothing in the Act shall affect a state securities regulatory agency's jurisdiction over any security or person insofar as it does not conflict with the Act), and that venue was also proper under 28 U.S.C. § 1391(b) (which permits actions not founded solely on diversity of citizenship to be brought in the district where all defendants reside or "in which the claim arose") because the allegedly invalid restraint against appellee occurred in the Northern District of Texas and that was accordingly the district "in which the claim arose." Held:
1. There is a sound prudential justification in this case for reversing the normal order of considering personal jurisdiction in advance of venue, since otherwise this Court would have to decide a constitutional law question not previously decided as to whether personal jurisdiction was properly obtained under the Texas long-arm statute. Pp. 180-181.
2. Venue was improper under § 27 of the 1934 Act because § 28(a) of that Act imposed no duty on the Idaho officials. Pp. 181-182.
3. Nor was venue available in the Northern District of Texas under 28 U.S.C. § 1391(b). The District of Idaho, where the actions forming the basis for appellee's claim took place, is the only one in which "the claim arose" within the meaning of § 1391(b). Pp. 183-187.
577 F.2d 1256, reversed.
Peter E. Heiser, Jr., Boise, Idaho, for appellants.
Amy Juviler, New York City, for the State of New York, as amicus curiae.
Ivan Irwin, Jr., Dallas, Tex., for appellee.
Frank H. Easterbrook, Washington D. C., for the Securities and Exchange Commission, as amicus curiae.
Mr. Justice STEVENS delivered the opinion of the Court.
1
An Idaho statute imposes restrictions on certain purchasers of stock in corporations having substantial assets in Idaho. The questions presented by this appeal are whether the state agents responsible for enforcing the statute may be required to defend its constitutionality in a Federal District Court in Texas and, if so, whether the statute conflicts with the Williams Act amendments to the Securities Exchange Act of 1934,1 or with the Commerce Clause of the United States Constitution.2
2
Sunshine Mining and Metal Co. (Sunshine) is a "target company" within the meaning of the Idaho Corporate Takeover Act—a statute designed to regulate takeovers of corporations that have certain connections to the State.3 Sunshine's principal business is a silver mining operation in the Coeur d'Alene Mining District in Idaho. Its executive offices and most of its assets are located in the State. Sunshine is also engaged in business in New York and, through a subsidiary, in Maryland. Its stock is traded over the New York Stock Exchange, and its shareholders are dispersed throughout the country. App. 36. It is a Washington corporation. Great Western United Corp. v. Kidwell, 439 F.Supp. 420, 423-424.
3
Great Western United Corp. (Great Western) is an "offeror" within the meaning of the Idaho statute.4 Great Western is a publicly owned Delaware corporation with executive headquarters in Dallas, Tex., and corporate offices in Denver, Colo. App. 131. In early 1977, Great Western decided to make a public offer to purchase 2 million shares of Sunshine stock for a premium price. Because consummation of the proposed tender offer would cause Great Western to own more than 5% of Sunshine's outstanding shares, Great Western was required to comply with certain provisions of the Williams Act and arguably also to comply with the Idaho Corporate Takeover Act as well as with similar provisions of New York and Maryland.
4
On March 21, 1977, Great Western publicly announced its intent to make a tender offer for 2 million shares of Sunshine, and its representatives took simultaneous steps to implement the proposed tender offer. They filed a Schedule 13D with the Securities and Exchange Commission in Washington, D.C., disclosing the information required by the Williams Act. They consulted with state officials in Idaho, New York, and Maryland about compliance with the corporate takeover laws of those States. And they filed documents with the Idaho Director of Finance in an attempt to satisfy Idaho's statute.
5
On March 25, 1977, Melvin Baptie, who was then the Deputy Administrator of Securities of the Idaho Department of Finance, sent a telecopy letter of objections to Great Western's filing to the company's offices in Dallas. The letter stated that certain pages of Great Western's SEC Form 13D were missing, asked for several additional items of information, and indicated that no hearing would be scheduled, nor other action taken, until all of the requested information had been received. App. to Juris. Statement A-156 to A-164. On the same day, Tom McEldowney, the Director of Finance of Idaho, entered an order delaying the effective date of the tender offer. Id., at A-165 to A-166. Great Western made no response to Baptie's letter or to McEldowney's order.
6
On March 28, 1977, Great Western filed this action in the United States District Court for the Northern District of Texas, naming as defendants the state officials responsible for enforcing the Idaho, New York, and Maryland takeover laws. The complaint prayed for a declaration that the state laws were invalid insofar as they purported to apply to interstate cash tender offers to purchase securities traded on the national exchange. App. 1-36. The claims against the Maryland and New York defendants were dismissed because the former did not attempt to enforce their statute against Great Western and the latter expressly stated that they would not assert jurisdiction over the proposed tender offer. 439 F.Supp., at 428-429. The two Idaho defendants—McEldowney, the Director of Finance, and Wayne Kidwell, then Attorney General of the State5 —appeared specially to contest jurisdiction and venue, and later filed an answer contesting the merits of the claim.
7
The District Court found four separate statutory bases for federal jurisdiction.6 It held that personal jurisdiction over the Idaho defendants had been obtained by service pursuant to the Texas long-arm statute.7 It concluded, however, that venue was improper under the general federal venue statute, 28 U.S.C. § 1391(b),8 because the defendants obviously did not reside in Texas and the claim arose in Idaho rather than in Texas. Nonetheless, it decided that venue could be sustained under the special venue provision in § 27 of the Securities Exchange Act of 1934 (1934 Act). 48 Stat. 902, as amended, 15 U.S.C. § 78aa. See nn. 9 and 10, infra, and accompanying text.
8
On the merits, the District Court held that the Idaho Corporate Takeover Act is pre-empted by the Williams Act and places an impermissible burden on interstate commerce. It granted injunctive relief that enabled Great Western to acquire the desired Sunshine shares in the fall of 1977. 439 F.Supp., at 434-440. That acquisition did not moot the case, however, because the question whether Great Western has violated Idaho's statute will remain open unless and until the District Court's judgment is finally affirmed.
9
A divided panel of the Court of Appeals for the Fifth Circuit affirmed. The court sustained federal subject-matter jurisdiction on the same four grounds relied upon by the District Court. See n. 6, supra. It then advanced alternative theories in support of both its determination that the District Court had personal jurisdiction over the defendants and its conclusion that venue lay in the Northern District of Texas. First, it noted that the Texas long-arm statute authorized the assertion of personal jurisdiction over nonresidents to the fullest extent allowable under the Due Process Clause of the Fourteenth Amendment. It then held that an Idaho official who seeks to enforce an Idaho statute to prevent a Texas-based corporation from proceeding with a national tender offer has sufficient contacts with Texas to support jurisdiction. Second, it held that jurisdiction was available under § 27 of the 1934 Act,9 which gives the federal district courts exclusive jurisdiction over suits brought "to enforce any . . . duty created" by the Act. It based this holding on the theory that Idaho's enforcement attempts, by conflicting with the Williams Act, constituted a violation of a "duty" imposed by § 28(a) of the 1934 Act.10 It relied on the same reasoning to support its conclusion that venue was authorized by § 27 of the 1934 Act. Finally, disagreeing with the District Court, the Court of Appeals concluded that venue in the Northern District of Texas was also proper under the general federal venue provision, 28 U.S.C. § 1391(b), because the allegedly invalid restraint against Great Western occurred there and it was accordingly "the judicial district . . . in which the claim arose." Great Western United Corp. v. Kidwell, 577 F.2d 1256, 1265-1274. On the merits, the Court of Appeals agreed with the analysis of the District Court. Id., at 1274-1287.
10
We noted probable jurisdiction of the appeal. 435 U.S. 1065, 99 S.Ct. 829, 59 L.Ed.2d 30. Without reaching either the merits or the constitutional question arising out of the attempt to assert personal jurisdiction over appellants, we now reverse because venue did not lie in the Northern District of Texas.
11
* The question of personal jurisdiction, which goes to the court's power to exercise control over the parties, is typically decided in advance of venue, which is primarily a matter of choosing a convenient forum. See generally C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3801, pp. 5-6 (1976) (hereinafter Wright, Miller & Cooper). On the other hand, neither personal jurisdiction nor venue is fundamentally preliminary in the sense that subject-matter jurisdiction is, for both are personal privileges of the defendant, rather than absolute strictures on the court, and both may be waived by the parties. See Olberding v. Illinois Central R. Co., 346 U.S. 338, 340, 74 S.Ct. 83, 85, 98 L.Ed. 39; Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 167-168, 60 S.Ct. 153, 154-155, 84 L.Ed. 167. Accordingly, when there is a sound prudential justification for doing so, we conclude that a court may reverse the normal order of considering personal jurisdiction and venue.
12
Such a justification exists in this case. Although for the reasons discussed in Part II, infra, it is clear that § 27 of the 1934 Act does not provide a basis for personal jurisdiction, the question whether personal jurisdiction was properly obtained pursuant to the Texas long-arm statute is more difficult. Indeed, because the Texas Supreme Court has construed its statute as authorizing the exercise of jurisdiction over non-residents to the fullest extent permitted by the United States Constitution,11 resolution of this question would require the Court to decide a question of constitutional law that it has not heretofore decided. As a prudential matter it is our practice to avoid the unnecessary decision of novel constitutional questions. We find it appropriate to pretermit the constitutional issue in this case because it is so clear that venue was improper either under § 27 of the 1934 Act or under § 1391(b) of the Judicial Code.
II
13
The linchpin of Great Western's argument that venue is provided by § 27 of the 1934 Act is its interpretation of § 28(a) of that Act. See nn. 9, 10, supra. It reads § 28(a) as imposing an affirmative "duty" on the State of Idaho, the violation of which may be redressed in the federal courts under § 27. As Mr. Justice Frankfurter said of a similar argument in a similar case, however, "[t]his is a horse soon curried." Olberding, supra, 346 U.S., at 340, 74 S.Ct., at 85.
14
The reference in § 27 to the "liabilit[ies] or dut[ies] created by this chapter" clearly corresponds to the various provisions in the 1934 Act that explicitly establish duties for certain participants in the securities market or that subject such persons to possible actions brought by the Government, the Securities and Exchange Commission, or private litigants.12 Section 28(a) is not such a provision. There is nothing in its text or its legislative history to suggest that it imposes any duty on the States or that indicates who might enforce any such duty. The section was plainly intended to protect, rather than to limit, state authority.13 Because § 28(a) imposed no duty on appellants, the argument that § 27 establishes venue in the District Court is unsupportable.14
III
15
Nor, as the District Court correctly concluded, is venue available under § 1391(b). The first test of venue under that provision—the residence of the defendants—obviously points to Idaho rather than Texas. The Court of Appeals reasoned, however, under the second relevant test that the claim arose in Dallas because that is the place where the Idaho officials "invalidly prevented Great Western from initiating a tender offer for Sunshine." 577 F.2d, at 1273.15 The court buttressed its conclusion by noting that a single action against the officials of New York, Maryland, and Idaho could not have been instituted in any one place unless the claim was treated as having arisen in Dallas. Ibid.
16
The easiest answer to this latter argument is that Great Western's complaint did not in fact raise justiciable claims against any officials save those in Idaho. But that is not the only answer. Although the legal issues raised in the complaint challenging the constitutionality of the statutes of three different States were similar, and the convenience of Great Western would obviously be served by consolidating the three claims for trial in one district, the general venue statute does not authorize the plaintiff to rely on either of those reasons to justify its choice of forum.
17
In most instances, the purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial.16 For that reason, Congress has generally not made the residence of the plaintiff a basis for venue in nondiversity cases. But cf. 28 U.S.C. § 1391(e). The desirability of consolidating similar claims in a single proceeding may lead defendants, such perhaps as the New York and Maryland officials in this case, to waive valid objections to otherwise improper venue. But that concern does not justify reading the statute to give the plaintiff the right to select the place of trial that best suits his convenience. So long as the plain language of the statute does not open the severe type of "venue gap" that the amendment giving plaintiffs the right to proceed in the district where the claim arose was designed to close,17 there is no reason to read it more broadly on behalf of plaintiffs.18
18
Moreover, the plain language of § 1391(b) will not bear the Court of Appeals' interpretation. The statute allows venue in "the judicial district . . . in which the claim arose." Without deciding whether this language adopts the occasionally fictive assumption that a claim may arise in only one district,19 it is absolutely clear that Congress did not intend to provide for venue at the residence of the plaintiff or to give that party an unfettered choice among a host of different districts. Denver & R. G. W. R. Co. v. Railroad Trainmen, 387 U.S. 556, 560, 87 S.Ct. 1746, 1748, 18 L.Ed.2d 954. Rather, it restricted venue either to the residence of the defendants or to "a place which may be more convenient to the litigants"—i. e., both of them—"or to the witnesses who are to testify in the case." S.Rep.No.1752, 89th Cong., 2d Sess. 3 (1966). See Denver & R. G. W. R. Co., supra, at 560, 87 S.Ct., at 1748. See also Brunette Machine Works v. Kockum Industries, 406 U.S. 706, 710, 92 S.Ct. 1936, 1939, 32 L.Ed.2d 428. In our view, therefore, the broadest interpretation of the language of § 1391(b) that is even arguably acceptable is that in the unusual case in which it is not clear that the claim arose in only one specific district,20 a plaintiff may choose between those two (or conceivably even more) districts that with approximately equal plausibility—in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff)—may be assigned as the locus of the claim. Cf. Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 493-494, 93 S.Ct. 1123, 1128-1129, 35 L.Ed.2d 443.
19
This case is not, however, unusual. For the claim involved has only one obvious locus—the District of Idaho. Most importantly, it is action that was taken in Idaho by Idaho residents—the enactment of the statute by the legislature, the review of Great Western's filing, the forwarding of the comment letter by Deputy Administrator Baptie, and the entry of the order postponing the effective date of the tender by Finance Director McEldowney—as well as the future action that may be taken in the State by its officials to punish or to remedy any violation of its law, that provides the basis for Great Western's federal claim. For this reason, the bulk of the relevant evidence and witnesses—apart from employees of the plaintiff, and securities experts who come from all over the United States21 —is also located in the State. Less important, but nonetheless relevant, the nature of this action challenging the constitutionality of a state statute makes venue in the District of Idaho appropriate. The merits of Great Western's claims may well depend on a proper interpretation of the State's statute, and federal judges sitting in Idaho are better qualified to construe Idaho law, and to assess the character of Idaho's probable enforcement of that law, than are judges sitting elsewhere. See cases cited in n. 11, supra.
20
We therefore reject the Court of Appeals' reasoning that the "claim arose" in Dallas because that is where Great Western proposed to initiate its tender offer, and that is where Idaho's statute had its impact on Great Western. Aside from the fact that these "contacts" between the "claim" and the Texas District fall far short of those connecting the claim and the Idaho District, we note that this reasoning would subject the Idaho officials to suit in almost every district in the country. For every prospective offeree—be he in New York, Los Angeles, Miami, or elsewhere, rather than in Dallas—could argue with equal force (or Great Western could argue on his behalf) that he had intended to direct his local broker to accept the tender and was frustrated in that desire by the Idaho law.22 As we noted above, however, such a reading of § 1391(b) is inconsistent with the underlying purpose of the provision, for it would leave the venue decision entirely in the hands of plaintiffs, rather than making it "primarily a matter of convenience of litigants and witnesses." Denver & R. G. W. R. Co., supra, 387 U.S., at 560, 87 S.Ct., at 1748.23 In short, the District of Idaho is the only one in which "the claim arose" within the meaning of § 1391(b).
21
The judgment of the Court of Appeals is reversed.
22
It is so ordered.
23
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
24
When Great Western proposed in Dallas, Tex., to make a cash tender offer for up to two million shares of Sunshine, officials in Idaho, Maryland, and New York indicated that the offer would be subject to the corporate takeover statute of each State. Having complied with the provisions of the Williams Act governing tender offers and believing that extraterritorial application of the additional requirements of the state statutes was pre-empted by and in conflict with the federal statute, Great Western brought suit in Federal District Court for the Northern District of Texas for declaratory and injunctive relief against enforcement of the state statutes. Because I conclude that venue in that District and personal jurisdiction over the defendant state officials were authorized by § 27 of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa, I disagree with the Court's disposition of this appeal and would reach the merits of Great Western's contention that Idaho's statute is pre-empted by the Williams Act.
25
* The Williams Act was enacted in the form of a set of amendments to the Securities Exchange Act, which, like the Securities Act of 1933, contains its own venue provision. Section 27 prescribes two separate requirements—one relating to the attributes of the judicial district in which suit is brought, and the second relating to the nature of the suit. I consider these in turn.
A.
26
Comparison of the terms of § 27 with the terms of the general federal venue statute, 28 U.S.C. § 1391(b), shows the relative ease with which venue may be obtained in suits brought under the Securities Exchange Act. Whereas under § 1391(b) venue is proper only in a judicial district that is either where (a) the defendant(s) reside, or (b) "the claim arose," under § 27 suit may be brought in any district that is either where (a) the defendant may be found, is an inhabitant, or transacts business, or (b) "any act or transaction constituting the violation occurred." As the majority notes, some courts have been reluctant to embrace the view that a claim may arise in more than one district for purposes of § 1391(b). On the other hand, it has been widely accepted that there may be more than one district where acts constituting a violation may occur for purposes of § 27, and indeed that the act on which venue is predicated need be only a "material" part of an alleged violation of the Securities Exchange Act.1 "Without question, the intent of the venue . . . provisions of the securities laws is to grant potential plaintiffs liberal choice in their selection of a forum." Ritter v. Zuspan, 451 F.Supp. 926, 928 (ED Mich.1978). Given the underlying policy of § 27 to confer venue in a wide variety of districts in order to ease the task of enforcement of federal securities law, it would be anomalous indeed if venue were not available in the Northern District of Texas in this case. Faced with the alternative left to it by the majority—of instituting separate suits in each State attempting to apply its extraterritorial takeover law, or perhaps waiting and defending separate enforcement actions brought by each State—Great Western might well choose to forgo its tender offer altogether, a result not in keeping with the purposes of the Williams Act or § 27. Although in this case only three States indicated an intention to assert jurisdiction over the tender offer, and only Idaho ultimately attempted to enforce its statute, it is important to note that there are analogous statutes in a total of 36 States.2
27
With the foregoing in mind, even if the claim in this case did not arise in Dallas within the meaning of § 1391(b), Dallas is a place where an act constituting an alleged violation of the Williams Act occurred, because it is where appellants sought to apply Idaho's statute. Of course, for purposes of determining whether venue requirements were met, the substantive allegations of Great Western's claim—that is, that Idaho's statute conflicts with the Williams Act—must be accepted as true. The specific act alleged to violate a duty created by the Williams Act is the application of the Idaho statute to the Dallas tender offer. The gist of the act complained of being extraterritorial application of Idaho's statute, this act obviously occurs not only in Idaho but also in the district where the extraterritorial tender offer is made.
B
28
Having determined that the Northern District of Texas has the required relationship to the claim in this case, venue in that District was proper under § 27 as long as the second general requirement of the provision was met; that is, if it may be said that Great Western's suit was "to enforce any liability or duty created by this chapter . . ., or to enjoin any violation of such chapter . . . ." In the majority's view, the term "duty created by this chapter" means only those duties "explicitly" prescribed by a provision of the Williams Act. Ante, at 181-182. The majority would further restrict the term to refer only to duties imposed on "participants in the securities market," ante, at 181, which presumably does not include officials seeking to enforce state corporate takeover laws.
29
But § 27 does not provide that the duty must be "explicitly" stated in a provision of the Williams Act or that only "participants in the securities market" have duties under the Act. Rather, it broadly encompasses all suits to enforce "any . . . duty created by" the Act. Here respondent sought an injunction against enforcement of Idaho's statute as applied to its interstate tender offer, on the ground that such enforcement is pre-empted by and in conflict with the Williams Act. The only question, then, is whether the Williams Act imposes on state officials, expressly or impliedly, the duty not to enact or enforce legislation inconsistent therewith. In my view, the answer to this question must be in the affirmative. The Supremacy Clause of the Constitution provides that if state law conflicts with federal law, federal law prevails. Given this command, the very enactment and existence of the Williams Act pre-empts and invalidates all conflicting state efforts to regulate cash tender offers. Viewed from the perspective of potential offerors, the existence of the Act creates the right not to be subject to conflicting state regulation. Viewed from the perspective of state officials, the existence of the Act creates a duty not to undertake conflicting regulation efforts.
30
That the duty alleged to have been violated in this case would not exist in the absence of the Supremacy Clause does not make the duty any less a creation of the Williams Act. "[A]ll federal actions to enjoin a state enactment rest ultimately on the Supremacy Clause," Swift & Co. v. Wickham, 382 U.S. 111, 126, 86 S.Ct. 258, 267, 15 L.Ed.2d 194 (1965), whether the substantive federal law relied upon be a statute—as in Swift3 and as in this case—or another provision of the Constitution, such as the Commerce Clause. Thus, the command of the Supremacy Clause is necessary to the authoritative assertion of any federal right or counterpart duty, and imposes the general duty not to act in a manner inconsistent with federal law. However, the specific duty alleged to have been violated in this case—not to enforce extraterritorial state takeover laws such as Idaho's—is imposed by the existence of pre-emptive federal regulation.4 Just as various provisions of the Williams Act creates certain duties on the part of participants in the securities market, the Williams Act as a whole creates the duty on the part of state officials not to regulate in a manner inconsistent with that Act.
II
31
Once it is determined that § 27 contemplates venue for Great Western's claim in the Northern District of Texas, the federal court in that District also had personal jurisdiction over the Idaho defendants, they having been served in a "district . . . wher[e] . . . found," there being no objection to the manner of service of process, and there being no restrictions imposed by the Constitution on the exercise of jurisdiction by the United States over its residents, see Fitzsimmons v. Barton, 589 F.2d 330 (CA7 1979).5
1
82 Stat. 454; see 15 U.S.C. §§ 78m(d), 78m(e), 78n(d)-78n(f).
2
"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.
3
Chapter 15 of Title 30 of the Idaho Code is entitled "Corporate Takeovers." Its opening provision contains the following definition:
" 'Target company' means a corporation or other issuer of securities which is organized under the laws of this state or has its principal office in this state, which has substantial assets located in this state, whose equity securities of any class are or have been registered under chapter 14, title 30, Idaho Code, or predecessor laws or section 12 of the Securities Exchange Act of 1934, and which is or may be involved in a take-over offer relating to any class of its equity securities." Idaho Code § 30-1501(6) (Supp.1979) (emphasis added).
4
" 'Offeror' means a person who makes or in any way participates in making a take-over offer, and includes all affiliates and associates of that person, and all persons acting jointly or in concert for the purpose of acquiring, holding or disposing of or exercising any voting rights attached to the equity securities for which a take-over offer is made.
* * * * *
" 'Take-over offer' means the offer to acquire or the acquisition of any equity security of a target company, pursuant to a tender offer or request or invitation for tenders, if after the acquisition thereof the offeror would be directly or indirectly a beneficial owner of more than five per cent (5%) of any class of the outstanding equity securities of the issuer." §§ 30-1501(3), (5) (Supp.1979).
5
Baptie, who wrote the letter of comment on March 25, 1977, was not named as a defendant. David H. Leroy has now replaced Kidwell as Attorney General of the State.
6
"The Court has subject matter jurisdiction over this case on four bases: 28 U.S.C. § 1331 (general federal question), 28 U.S.C. § 1332 (diversity), 28 U.S.C. § 1337 (acts affecting commerce) and Section 27 of the [Securities Exchange Act of 1934, 15 U.S.C. § 78aa]." 439 F.Supp., at 430.
7
Tex.Rev.Civ.Stat. Ann., Art. 2031b (Vernon 1964).
8
Section 1391(b) provides:
"A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law."
9
"The district courts of the United States . . . shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity or actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. . . ." 15 U.S.C. § 78aa.
10
Section 28(a), as set forth in 15 U.S.C. § 78bb(a), provides in pertinent part:
"Nothing in this chapter shall affect the jurisdiction of the securities commission (or any agency or officer performing like functions) of any State over any security or any person insofar as it does not conflict with the provisions of this chapter or the rules and regulations thereunder."
11
E. g., U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.1977). Appellants argue that this construction is only applicable to private commercial defendants and should not govern either in a suit against the agents of another sovereign State or in one against persons who are not engaged in commercial endeavors. Both the District Court and the Court of Appeals, however, have concluded that the statute does extend to the limits of the Due Process Clause in this case, and it is not our practice to re-examine state-law determinations of this kind. E. g., Butner v. United States, 440 U.S. 48, 57-58, 99 S.Ct. 914, 919, 59 L.Ed.2d 136; Bishop v. Wood, 426 U.S. 341, 345-346, 96 S.Ct. 2074, 2077-2078, 48 L.Ed.2d 684 and n. 8; Propper v. Clark, 337 U.S. 472, 486-487, 69 S.Ct. 1333, 1341-1342, 93 L.Ed. 1480.
12
E. g., § 14(a) of the 1934 Act, 15 U.S.C. § 78n(a) ("It shall be unlawful for any person . . . to solicit any proxy . . . in contravention of such rules and regulations as the Commission may prescribe . . . ") (emphasis added); § 16(b), 15 U.S.C. § 78p(b) ("For the purpose of preventing the unfair use of information which may have been obtained by [the] beneficial owner [of 10% of any class of equity security], director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer . . . ." (emphasis added); § 17(a)(1), as set forth in 15 U.S.C. § 78q(a)(1). ("Every national securities exchange, member thereof, broker or dealer who transacts a business in securities through the medium of any such member, registered securities association, registered broker or dealer, registered municipal securities dealer, registered securities information processor, registered transfer agent, and registered clearing agency . . . shall make, and keep . . . such records . . . and make . . . such reports as the Commission, by rule, prescribes . . . .") (emphasis added).
13
Thomas Corcoran, a principal draftsman of the 1934 Act, indicated to Congress that the purpose of § 28(a) was to leave the States with as much leeway to regulate securities transactions as the Supremacy Clause would allow them in the absence of such a provision. Hearings on S.Res. 84 (72d Cong.), 56, and 97 (73d Cong.) before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 6577 (1934). In particular, the provision was designed to save state blue-sky laws from pre-emption. See ibid.
14
When one considers the straightforward language of §§ 27 and 28(a), it is difficult to regard Mr. Justice White's ingenuous and intricate argument as a realistic reflection of the actual intent of the legislators who enacted these provisions.
Nor is the breadth of the venue created by § 27, see post, at 188-189, citing Ritter v. Zuspan, 451 F.Supp. 926, 928 (ED Mich.1978), a sufficient reason for assuming that that section, rather than some narrower venue provision, applies whenever a suit involves the 1934 Act. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540.
15
The Court of Appeals properly concluded that the determination of where "the claim arose" for purposes of federal venue under § 1391 is a federal question whose answer depends on federal law. See cases cited in 1 J. Moore, Federal Practice ¶ 0.142[5.-2], pp. 1429-1430 (1979); Wright, Miller, & Cooper, § 3803, pp. 10-13.
16
See Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 493-494, 93 S.Ct. 1123, 1128-1129, 35 L.Ed.2d 443; Denver & R. G. W. R. Co. v. Railroad Trainmen, 387 U.S. 556, 560, 87 S.Ct. 1746, 1748, 18 L.Ed.2d 954; Nierbo Co. v. Bethlehem Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 154, 84 L.Ed. 167; Reuben H. Donnelley Corp. v. FTC, 580 F.2d 264, 269 (CA7 1978).
17
See Brunette Machine Works v. Kockum Industries, 406 U.S. 706, 710, and n. 8, 92 S.Ct. 1936, 1939, 32 L.Ed.2d 428. As Brunette indicates, the amendment of § 1391 to provide for venue where the claim arose was designed to close the "venue gaps" that existed under earlier versions of the statute in situations in which joint tortfeasors, or other multiple defendants who contributed to a single injurious act, could not be sued jointly because they resided in different districts. 406 U.S., at 710 n. 8, 92 S.Ct., at 1939. In this case, by contrast, Great Western has attempted to join in one suit three separate claims—each challenging a different statute—against three sets of defendants from three States. The statute simply does not contemplate such a choice on the part of plaintiffs.
18
"The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a 'liberal' construction." Olberding v. Illinois Central R. Co., 346 U.S. 338, 340, 74 S.Ct. 83, 85, 98 L.Ed. 39.
19
The two sides of this question, and the cases supporting each, are discussed in 1 Moore, supra n.15, at ¶ 0.142[5.-2], pp. 1426-1435; Wright, Miller, & Cooper § 3806, pp. 28-34.
20
See ALI, Study of Division of Jurisdiction Between State and Federal Courts, Commentary 136-137 (1969).
21
At the trial held in the Northern District of Texas, the witness roster, in addition to various Idaho officials and Great Western employees from Dallas, mainly included experts from the New York area as well as one each from California, Maryland, Texas, and Wisconsin. App. 100-292.
22
Sunshine's shareholders are located in 49 States as well as the District of Columbia and Puerto Rico. Id., at 36.
23
In Denver & R. G. W. R. Co., the Court concluded that the drafters of § 1391(b) did not intend to provide venue in suits against unincorporated associations in every district in which a member of the association resided. To do so, it noted, would give the plaintiff an unrestrained choice of venues and would accordingly be "patently unfair" to the defendant. 387 U.S., at 560, 87 S.Ct., at 1748. A like reasoning is controlling here.
1
See Puma v. Marriott, 294 F.Supp. 1116, 1120 (Del.1969); Prettner v. Aston, 339 F.Supp. 273 (Del.1972); Mayer v. Development Corp. of America, 396 F.Supp. 917, 928-930 (Del.1975). See also Black & Co. v. Nova-Tech, Inc., 333 F.Supp. 468 (Or.1971).
2
See Note, Securities Law and the Constitution: State Tender Offer Statutes Reconsidered, 88 Yale L.J. 510, 514-515, n. 29 (1979).
3
A claim of pre-emption is based on an alleged violation of a federal statute. In Swift, appellants—poultry packing companies alleged that "enforcement [of a New York statute's labeling requirements] would violate the . . . overriding requirements of [a federal labeling statute]." 382 U.S., at 114, 86 S.Ct., at 260. Similarly, state welfare practices may be challenged on the ground that they conflict with the Social Security Act, see, e. g., Edelman v. Jordan, 415 U.S. 651, 675, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974); Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); King v. Smith, 392 U.S. 309, 312 n. 3, 88 S.Ct. 2128, 2130, 20 L.Ed.2d 1118 (1968).
4
The Court of Appeals concluded that appellants' duty was created by § 28(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78bb(a). See Great Western United Corp. v. Kidwell, 577 F.2d 1256, 1271-1272 (CA5 1978). However, the duty not to act in a manner inconsistent with the Williams Act would exist even without § 28(a). Of course, that provision may be relevant in considering the merits of Great Western's claim of pre-emption, in that it may shed light on the nature and scope of state regulation of tender offers that would not be in conflict with the Williams Act.
5
Appellants also raise the issue whether a tender offeror has a cause of action "under the Williams Act amendments to the Securities Exchange Act of 1934 to challenge the constitutionality of state corporate takeover laws." Juris. Statement 4. In Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 47 n. 33, 97 S.Ct. 926, 952, 51 L.Ed.2d 124 (1977), we left open the question "whether as a general proposition a suit in equity for injunctive relief . . . would lie in favor of a tender offeror" under an antifraud provision of the Williams Act. See also Touche Ross & Co. v. Redington, 442 U.S. 560, 577, 99 S.Ct. 2479, 2490, 61 L.Ed.2d 82 (1979), rejecting the notion that § 27 of the Securities Exchange Act of 1934 creates any implied cause of action. However, the complaint alleged a cause of action not only under the Williams Act and § 27, but also under 42 U.S.C. § 1983, see App. 3-4, 13, which applies in suits against state officials. Because the pre-emption claim alleges deprivation of a right secured by a federal statute, see Part I-B of text, supra, it states a cause of action under the "and laws" provision of § 1983.
| 89
|
443 U.S. 137
99 S.Ct. 2689
61 L.Ed.2d 433
T. L. BAKER, Petitioner,v.Linnie Carl McCOLLAN.
No. 78-752.
Argued April 23, 1979.
Decided June 26, 1979.
Syllabus
Respondent's brother somehow procured a duplicate of respondent's driver's license, except that it bore the brother's picture. The brother was arrested on narcotics charges, booked in respondent's name, and released on bond. An arrest warrant intended for the brother was subsequently issued in respondent's name. Pursuant to that warrant, respondent, over his protest, was taken into custody by the Potter County, Tex., Sheriff's Department and detained in jail for several days before the error was discovered and he was released. Claiming that his detention in jail had deprived him of liberty without due process of law, respondent brought an action in District Court against petitioner sheriff of Potter County and his surety under 42 U.S.C. § 1983, which imposes civil liability on any person who, under color of state law, subjects another to the deprivation of rights "secured by the Constitution and laws." The District Court directed a verdict in favor of petitioner and his surety. The Court of Appeals, characterizing respondent's cause of action as a "[§] 1983 false imprisonment action," reversed, holding that respondent was entitled to have his § 1983 claim presented to the jury even though the evidence supported no more than a finding of negligence on petitioner's part.
Held: Respondent failed to satisfy § 1983's threshold requirement that the plaintiff be deprived of a right "secured by the Constitution and laws," and hence had no claim cognizable under § 1983. Pp. 142-147.
(a) Absent an attack on the validity of the warrant under which he was arrested, respondent's complaint is simply that, despite his protests of mistaken identity, he was detained in jail for three days. Whatever claim this situation might give rise to under state tort law, it gives rise to no claim under the Fourteenth Amendment to the United States Constitution. While respondent was deprived of his liberty for three days, it was pursuant to a warrant conforming to the requirements of the Fourth Amendment. His detention, therefore, did not amount to a deprivation of liberty without due process of law. Pp. 142-145.
(b) Respondent's innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment, is largely irrelevant to his claim of deprivation of liberty without due process of law. Given the requirements that an arrest be made only on probable cause and that one detained be accorded a speedy trial, a sheriff executing a valid arrest warrant is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official maintaining custody of the person named in the warrant required by the Constitution to perform an error-free investigation of such a claim. Pp. 145-146.
(c) The tort of false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official. P. 146.
5 Cir., 575 F.2d 509, reversed.
A. W. So Relle III, Amarillo, Tex., for petitioner.
Douglas R. Larson, Dallas, Tex., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Last Term, in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), we granted certiorari to consider the question whether negligent conduct can form the basis of an award of damages under 42 U.S.C. § 1983. The constitutional violation alleged in Procunier was interference on the part of prison officials with a prisoner's outgoing mail. The complaint alleged that the prison officials had acted with every conceivable state of mind, from "knowingly" and in "bad faith" to "negligently and inadvertently." We granted certiorari, however, only on the question "[w]hether negligent failure to mail certain of a prisoner's outgoing letters states a cause of action under § 1983." 434 U.S., at 559 n.6, 98 S.Ct., at 858.
2
Following oral argument and briefing on the merits, the Court held that since the constitutional right allegedly violated had not been authoritatively declared at the time the prison officials acted, the officials were entitled, as a matter of law, to prevail on their claim of qualified immunity. Quoting from Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975), we observed: "Because [the prison officials] could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, [they] did not act with such disregard for the established law that their conduct 'cannot reasonably be characterized as being in good faith.' " 434 U.S., at 565, 98 S.Ct., at 861. It was thus unnecessary to reach the question on which certiorari had been granted.
3
In the instant case, the Court of Appeals for the Fifth Circuit saw the focal issue as whether petitioner Baker, the sheriff of Potter County, Tex., had negligently failed to establish certain identification procedures which would have revealed that respondent was not the man wanted in connection with the drug charges on which he was arrested. Accordingly, it withheld decision until our opinion in Procunier was handed down. Finding no guidance in Procunier on the question whether an allegation of "simple negligence" states a claim for relief under § 1983, the Court of Appeals proceeded to answer that question affirmatively, holding that respondent was entitled to have his § 1983 claim presented to the jury even though the evidence supported no more than a finding of negligence on the part of Sheriff Baker. We granted certiorari. 439 U.S. 1114, 99 S.Ct. 1015, 59 L.Ed.2d 71 (1979).
4
Having been around this track once before in Procunier, supra, we have come to the conclusion that the question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action. In any event, before the relationship between the defendant's state of mind and his liability under § 1983 can be meaningfully explored, it is necessary to isolate the precise constitutional violation with which he is charged. For § 1983 imposes civil liability only upon one
5
"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 . . . ."
6
The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right "secured by the Constitution and laws." If there has been no such deprivation, the state of mind of the defendant is wholly immaterial.1 We think that respondent has failed to satisfy this threshold requirement of § 1983 and thus defer once again consideration of the question whether simple negligence can give rise to § 1983 liability.
7
* Leonard McCollan and respondent Linnie Carl McCollan are brothers. Leonard somehow procured a duplicate of Linnie's driver's license, identical to the original in every respect except that, as the Court of Appeals put it, "Leonard's picture graced it instead of Linnie's." McCollan v. Tate, 575 F.2d 509, 511 (CA5 1978). In October 1972, Leonard, masquerading as Linnie, was arrested in Potter County on narcotics charges. He was booked as Linnie Carl McCollan, signed various documents as Linnie Carl McCollan, and was released on bail as Linnie Carl McCollan. Leonard's bondsman sought and received an order allowing him to surrender his principal and a warrant was issued for the arrest of "Linnie Carl McCollan."
8
On December 26, 1972, Linnie was stopped in Dallas for running a red light. A routine warrant check revealed that Linnie Carl McCollan was wanted in Potter County, and respondent was taken into custody over his protests of mistaken identification. The Dallas Police Department contacted the Potter County Sheriff's Department, compared the identifying information on respondent's driver's license with that contained in the Potter County arrest records, and understandably concluded that they had their man. On December 30, Potter County deputies took custody of respondent and placed him in the Potter County Jail in Amarillo. He remained there until January 2, 1973, when officials compared his appearance against a file photograph of the wanted man and, recognizing their error, released him.
9
Respondent brought this damages action "pursuant to the Fourteenth Amendment to the United States Constitution and . . . [§] 1983." App. 6. After each party had rested his case, the United States District Court for the Northern District of Texas directed a verdict in favor of Sheriff Baker and his surety, Transamerica Insurance Co., without articulating its reasons. The Court of Appeals for the Fifth Circuit reversed. Characterizing respondent's cause of action as a "[§] 1983 false imprisonment action," the Court of Appeals determined that respondent had made out a prima facie case by showing (1) intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. The question in the court's view thus became whether Sheriff Baker was entitled to the defense of qualified immunity, which in turn depended on the reasonableness of his failure to institute an identification procedure that would have disclosed the error. Noting that the error would have been discovered if Potter County officials had sent identifying material to Dallas or had immediately upon respondent's arrival in Amarillo compared him with the file photograph and fingerprints of the wanted man, the Court of Appeals determined that a jury could reasonably conclude that the sheriff had behaved unreasonably in failing to institute such measures. Accordingly, the case was remanded to the District Court for a new trial.
II
10
Respondent's claim is that his detention in the Potter County jail was wrongful. Under a tort-law analysis it may well have been. The question here, however, is whether his detention was unconstitutional. For, as the Court of Appeals recognized, a public official is liable under § 1983 only "if he causes the plaintiff to be subjected to deprivation of his constitutional rights." 575 F.2d, at 512 (emphasis in original). Despite this recognition, the Court of Appeals analyzed respondent's so-called "[§] 1983 false imprisonment action" exclusively in terms of traditional tort-law concepts, relying heavily on the Restatement (Second) of Torts (1965). Indeed, nowhere in its opinion does the Court of Appeals specifically identify the constitutional right allegedly infringed in this case. Because respondent's claim and the Court of Appeals' decision focus exclusively on respondent's prolonged detention caused by petitioner's failure to institute adequate identification procedures, the constitutional provision allegedly violated by petitioner's actions is presumably the Fourteenth Amendment's protection against deprivations of liberty without due process of law.
11
By virtue of its "incorporation" into the Fourteenth Amendment, the Fourth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty. Ger- stein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The probable-cause determination "must be made by a judicial officer either before or promptly after arrest." Id., at 125, 95 S.Ct. at 869. Since an adversary hearing is not required, and since the probable cause standard for pretrial detention is the same as that for arrest, a person arrested pursuant to a warrant issued by a magistrate on a showing of probable-cause is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial.2
12
In this case, respondent was arrested pursuant to a facially valid warrant, and the Court of Appeals made no suggestion that respondent's arrest was constitutionally deficient. Indeed, respondent makes clear that his § 1983 claim was based solely on Sheriff Baker's actions after respondent was incarcerated:
13
"McCollan's § 1983 claim against the sheriff is not for the wrong name being placed in the warrant or the failure to discover and change same or even the initial arrest of the respondent, but rather for the intentional failure to investigate and determine that the wrong man was imprisoned." Brief for Respondent 12.
14
For purposes of analysis, then, this case can be parsed with relative ease. Absent an attack on the validity of the warrant under which he was arrested, respondent's complaint is simply that despite his protests of mistaken identity, he was detained in the Potter County jail from December 30, when Potter County deputies retrieved him from Dallas, until January 2, when the validity of his protests was ascertained. Whatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United States Constitution. Respondent was indeed deprived of his liberty for a period of days, but it was pursuant to a warrant conforming, for purposes of our decision, to the requirements of the Fourth Amendment. Obviously, one in respondent's position could not be detained indefinitely in the face of repeated protests of innocence even though the warrant under which he was arrested and detained met the standards of the Fourth Amendment. For the Constitution likewise guarantees an accused the right to a speedy trial, and invocation of the speedy trial right need not await indictment or other formal charge; arrest pursuant to probable cause is itself sufficient. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).3 We may even assume, arguendo, that, depending on what procedures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a certain amount of time deprive the accused of "liberty . . . without due process of law." But we are quite certain that a detention of three days over a New Year's weekend does not and could not amount to such a deprivation.
15
Respondent's innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law.4 The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released. Nor are the manifold procedural protections afforded criminal defendants under the Bill of Rights "without limits." Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977). "Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person." Ibid.
16
The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished "without due process of law." A reasonable division of functions between law enforcement officers, committing magistrates, and judicial officers—all of whom may be potential defendants in a § 1983 action—is entirely consistent with "due process of law." Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim. The ultimate determination of such claims of innocence is placed in the hands of the judge and the jury.5
III
17
The Court of Appeals closed its opinion with the following summary of its holding:
18
"We are saying that the sheriff or arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the person sought under the warrant and not merely someone of the same or a similar name. See Restatement (2d) Torts § 125, comment (d) (1965)." 575 F.2d, at 513.
19
Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles. Just as "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner," Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.
20
Having been deprived of no rights secured under the United States Constitution, respondent had no claim cognizable under § 1983. The judgment of the Court of Appeals for the Fifth Circuit is therefore
21
Reversed.
22
Mr. Justice BLACKMUN, concurring.
23
The Court long has struggled to define the "liberty" protected by the Due Process Clause of the Fourteenth Amendment. The Court today looks to the provisions of the Bill of Rights that have been "incorporated" into the Due Process Clause, including the right to be free from unreasonable seizures, the right to bail, and the right to a speedy trial, and, finding that none of those specifically incorporated rights apply here, concludes that petitioner did not deny respondent due process in holding him in jail during a holiday weekend. Ante, at 144-145.
24
The Court's cases upon occasion have defined "liberty" without specific guidance from the Bill of Rights. For example, it has found police conduct that "shocks the conscience" to be a denial of due process. Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). Mr. Justice Harlan once wrote: "This 'liberty' is not a series of isolated points pricked out in terms of [the Bill of Rights]. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints." Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776-1777, 6 L.Ed.2d 989 (1961) (dissenting opinion). See also Roe v. Wade, 410 U.S. 113, 152-156, 93 S.Ct. 705, 726-728, 35 L.Ed.2d 147 (1973).
25
The Court today does not consider whether petitioner's conduct "shocks the conscience" or is so otherwise offensive to the "concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151, 82 L.Ed. 288 (1937), as to warrant a finding that petitioner denied respondent due process of law. Nothing in petitioner's conduct suggests outrageousness. He had been sheriff for only 40 days when this incident occurred, and, viewing the facts in the light most favorable to respondent, petitioner's error lay solely in failing to supervise the conduct of the deputies who transferred respondent to the Potter County jail and kept him there over the weekend. The Court of Appeals' finding that petitioner "intended to confine" respondent rested solely on petitioner's knowledge of the office procedures, not on any knowledge of respondent or even on an awareness at the time this incident occurred that the procedures might be ineffective. In contrast to the deputies who, as Mr. Justice STEVENS and Mr. Justice MARSHALL point out, post, at 151-152 and 149, turned a deaf ear to respondent's protests, petitioner checked the files and released respondent as soon as petitioner became aware of respondent's claim. The deputies are not parties to this lawsuit. While I concluded in Rizzo v. Goode, 423 U.S. 362, 384-387, 96 S.Ct. 598, 610-611, 46 L.Ed.2d 561 (1976) (dissenting opinion), that the reckless failure of a police official to stop a pattern of clearly unconstitutional conduct by his subordinates could be enjoined under § 1983, here there is no indication that petitioner was aware, or should have been aware, either of the likelihood of misidentification or of his subordinates' action in this case.
26
I do not understand the Court's opinion to speak to the possibility that Rochin might be applied to this type of case or otherwise to foreclose the possibility that a prisoner in respondent's predicament might prove a due process violation by a sheriff who deliberately and repeatedly refused to check the identity of a complaining prisoner against readily available mug shots and fingerprints. Such conduct would be far more "shocking" than anything this petitioner has done. The Court notes that intent is relevant to the existence of a constitutional violation, ante, at 140 n. 1, it reserves judgment as to whether a more lengthy incarceration might deny due process, ante, at 144, and it concludes only that "every" claim of innocence need not be investigated independently, ante, at 145-146. I therefore do not agree with Mr. Justice STEVENS' suggestion, post, at 154 n. 14, that a prisoner in respondent's predicament would be foreclosed from seeking a writ of habeas corpus. Because this is my understanding, and because I agree that the rights surveyed by the Court do not here provide a basis for the damages award respondent seeks, I concur in the judgment of the Court and join its opinion.
27
Mr. Justice MARSHALL, dissenting.
28
While I join the dissenting opinion of my Brother STEVENS, I would add one or two additional words. As I view this case, neither "negligence" nor "mere negligence" is involved. Respondent was arrested and not released. This constituted intentional action and not, under these circumstances, negligence. For despite respondent's repeated protests of misidentification, as well as information possessed by the Potter County sheriff suggesting that the name in the arrest warrant was incorrect, see post, at 151 (STEVENS, J., dissenting), petitioner and his deputies made absolutely no effort for eight days to determine whether they were holding an innocent man in violation of his constitutionally protected rights.
29
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
30
When a State deprives a person of his liberty after his arrest, the Constitution requires that it be prepared to justify not only the initial arrest, but the continued detention as well.1 Respondent's arrest on December 26, 1972, was authorized by a valid warrant and no claim is raised that it violated his Fourth Amendment rights. The question is whether the deprivation of his liberty during the next eight days—despite his protests of mistaken identity—was "without due process of law" within the meaning of the Fourteenth Amendment. The record in this case makes clear that the procedures employed by the sheriff of Potter County, Tex., at the time were not reasonably calculated to establish that a person being detained for the alleged commission of a crime was in fact the person believed to be guilty of the offense. In my judgment, such procedures are required by the Due Process Clause, and the deprivation of respondent's liberty occasioned by their absence is a violation of his Fourteenth Amendment rights.
31
* Respondent's brother Leonard was arrested by a member of the City of Amarillo Police Force on September 11, 1972; city police officers photographed and fingerprinted him. On October 6, 1972, he was transferred to the custody of the sheriff of Potter County. At that time, contrary to normal practice, the Potter County sheriff's office took possession of the driver's license the brother was carrying. They did so because it was apparent that the license had been altered. The sheriff testified that an alteration of that kind established a likelihood that the arrestee was using an alias.2
32
A professional surety posted bond and respondent's brother was released. On November 3, 1972, for reasons that do not appear in the record, the bondsman sought and received an order allowing him to surrender respondent's brother. A warrant for his re-arrest was therefore issued. Since the brother had been masquerading as respondent, the warrant was issued in respondent's name.3 Although respondent has not questioned the validity of the warrant—presumably because it issued before petitioner became sheriff—he has emphasized the fact that the altered driver's license in the file gave the sheriff's deputies reason to believe that the wanted person was using an alias.
33
On December 26, 1972, respondent was stopped for a traffic violation in Dallas. The Dallas patrolman made a routine radio check and learned that the Potter County warrant was outstanding. Over respondent's repeated protests that he was not the right man, the officer placed him under arrest and took him to a Dallas police station. The desk sergeant telephoned the Potter County sheriff's office and apparently learned that respondent's name, sex, race, and date of birth corresponded with the information provided by the sheriff. No mention appears to have been made of the fact that the sheriff's files contained an altered driver's license issued in respondent's name, even though respondent was obviously carrying a license when he was ticketed for the traffic offense.4 In short, the fact that the sheriff's office had reason to believe that the name in the warrant was an alias did not motivate any special effort to verify the arrestee's identification.
34
The sheriff's deputies allowed respondent to remain in the Dallas lockup for four days before they picked him up. At the time they did so, they failed to follow an identification procedure used by comparable sheriff's offices. They did not take the pictures and fingerprints in the file with them to Dallas to be sure that they had the man they wanted. Nor, when they returned to the Potter County jail, did they refer to the pictures or the prints notwithstanding respondent's continued protests of misidentification and the ready availability of the information.5
35
The ensuing four days included a holiday weekend when the sheriff was apparently away from his office. It was nevertheless a busy period for his staff since about 150 prisoners were being detained in a jail designed to house only 88.6 In all, there was no procedure in effect that led any of the sheriff's deputies to pull out the file and compare the pictures and fingerprints with respondent. Of course, as soon as the sheriff did so on January 2, he recognized the mistake that had been made and immediately released respondent.
36
It is evident that respondent's 8-day imprisonment would have been at least cut in half if any one of several different procedures had been followed by the sheriff's office. If his brother's file had been marked to indicate that he was probably using an alias, a more thorough and prompt identification check would surely have been made; if he had been transferred from Dallas to Potter County promptly, he apparently would have arrived before the sheriff left for the holiday weekend. If a prompt pickup was not feasible, a prompt mailing of the fingerprints and photographs would have revealed the error; if the deputies who picked him up had taken the fingerprints and photographs with them, he would have been released in Dallas; if the file had been checked when he arrived at the Potter County jail, or if the sheriff had delegated authority to review complaints of misidentification during his absence, respondent would not have spent four days in the Potter County jail. In short, almost any regular procedures for verifying an arrestee's identification would have resulted in the prompt release of respondent.
II
37
The Due Process Clause clearly protects an individual from conviction based on identification procedures which are improperly suggestive. In a criminal trial, that Clause requires the exclusion of evidence obtained through procedures presenting "a very substantial likelihood of . . . misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247. Fair procedures must be used, to prevent an "irreparable misidentification" and the resulting deprivation of liberty attaching to conviction. Ibid.7 In my judgment, the Due Process Clause equally requires that fair procedures be employed to ensure that the wrong individual is not subject to the deprivations of liberty attaching to pretrial detention.
38
Pretrial detention unquestionably involves a serious deprivation of individual liberty. "The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships." Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54. The burdens of pretrial detention are substantial ones to impose on a presumptively innocent man, even when there is probable cause to believe he has committed a crime.8 To impose such burdens on the wrong man—on a man who has been mistakenly identified as a suspect because of inadequate identification procedures—seems to me clearly unconstitutional. It is wholly at odds with the constitutional restraints imposed on police officers in the performance of investigative stops,9 the establishment of probable cause to detain as well as to arrest,10 and the questioning of suspects taken into custody.11 In each of these activities, police officers must conform to procedures mandated by the Constitution which serve to minimize the risk of wrongful and unjustified deprivations of personal liberty. It surely makes little sense to enforce limits on the police officer seeking out and detaining those whom he believes to have committed crimes without at the same time requiring adherence to procedures designed to ensure that the subject of the police action and detention is in fact the individual the officer believes he is.
39
In rejecting respondent's claim that his mistaken detention violated his constitutional rights, the Court today relies on two alternative rationales. First, it seems to hold that the constitutional right to a speedy trial provides adequate assurance against unconstitutional detentions, so long as the initial arrest is valid. I cannot agree. A speedy trial within the meaning of the Constitution may take place weeks or months—if not years—after the initial arrest.12 And many arrested persons—as many as 49% of those arrested in the District of Columbia—are never tried at all, with charges being dropped at some point prior to trial.13
40
Alternatively, the majority relies on the fact that the last three days of respondent's detention occurred over a holiday weekend to establish that the deprivation of his liberty was so minimal as not to require procedural protections. Whatever relevance the holiday might have to the sheriff's good-faith defense14—an issue not presented here—it is clear to me that the coincidence of a holiday weekend hardly reduces the deprivation of liberty from respondent's point of view; indeed, one might regard the deprivation of liberty as particularly serious over a holiday weekend, and require a higher standard of care at such a time. No claim is made that respondent's deprivation was due to the failure to follow otherwise applicable procedures during a holiday weekend; and no such claim could be made, since the respondent was detained for five days before the holiday weekend, and since he was brought to Potter County before the weekend without confirming his identity according to procedures which are customary in comparable police departments.15
41
Certainly, occasional mistakes may be made by conscientious police officers operating under the strictest procedures. But this is hardly such a case. Here, there were no identification procedures. And the problems of mistaken identification are not, in my judgment, so insubstantial that the absence of such procedures, and the deprivation of individual liberty which results from their absence, should be lightly dismissed as of no constitutional significance. The practice of making a radio check with a centralized data bank is now a routine policy, followed not only in every traffic stop in Potter County,16 but also in literally hundreds of thousands of cases per day nationwide.17 The risk of misidentification based on coincidental similarity of names, birthdays, and descriptions is unquestionably substantial;18 it is reflected not only in cases processed by this Court,19 but also in the emphasis placed on securing fingerprint identification by those responsible for the national computer system.20 The societal interests in apprehending the guilty as well as the interests in avoiding the incarceration of the innocent equally demand that the identification of arrested persons conform to standards designed to minimize the risk of error. I am not prepared or qualified to define the standards that should govern this aspect of the law enforcement profession's work, but I have no hesitation in concluding that an 8-day imprisonment resulting from a total absence of any regular identification procedures in Potter County was a deprivation of liberty without the due process of law that the Constitution commands.
42
I respectfully dissent.
1
Of course, the state of mind of the defendant may be relevant on the issue of whether a constitutional violation has occurred in the first place, quite apart from the issue of whether § 1983 contains some additional qualification of that nature before a defendant may be held to respond in damages under its provisions.
2
In rejecting the contention that a defendant is entitled to an adversary hearing on the question of probable cause to detain, the Gerstein Court stated:
"These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard—probable cause to believe the suspect has committed a crime—traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof." 420 U.S., at 120, 95 S.Ct., at 866 (footnote omitted).
3
We of course agree with the dissent's quotation of the statement from Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 484, 30 L.Ed.2d 502 (1971), that "the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." Post, at 149 n. 1. But the inference that the dissent appears to draw from this statement—that States are required by the United States Constitution to release an accused criminal defendant on bail—would, if correct, merely supply one more possibility of release from incarceration by resort to procedures specifically set out in the Bill of Rights, over and above those guarantees discussed in the text. It is for violations of such constitutional and statutory rights that 42 U.S.C. § 1983 authorizes redress; that section is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes. Cases such as Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972), relied upon by the dissent, post at 152-153, and n. 7, in no way contradict this view. The discussion of misidentification in Neil was in the context of the use of eyewitness identification testimony at the trial which the United States Constitution guarantees to any accused before he may be punished. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
4
We, of course, do not deal here with a criminal defendant's claim to a new trial after conviction where that claim is based upon newly discovered evidence. Most States provide a procedure similar to that contained in Fed.Rule Crim.Proc. 33 to process such claims.
5
In view of the substantive analysis employed by the dissent, it would seem virtually impossible to reach a conclusion other than that any case of misidentification in connection with an arrest made pursuant to an admittedly valid warrant or concededly on probable cause would constitute a deprivation of liberty without due process of law.
1
See Gerstein v. Pugh, 420 U.S. 103, 113-114, 95 S.Ct. 854, 862-863, 43 L.Ed.2d 54. See also Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 484, 30 L.Ed.2d 502 ("[T]he Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment"); Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 ("Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning").
2
App. 36-40.
3
Id., at 40-42, at 118.
4
See id., at 42-43.
5
"The sheriff himself testified that it was a standard practice in most sheriff's departments the size of his to send such identifying material." McCollan v. Tate, 575 F.2d 509, 513. See App. 44-45, 52-53.
6
Id., at 83.
7
See Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 ("It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster"). See also United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 ("The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification").
8
See Bell v. Wolfish, 441 U.S. 520, 569, and n.7 99 S.Ct. 1861, 1889-1890, 60 L.Ed.2d 447 (MARSHALL, J., dissenting); id., at 593, 99 S.Ct., at 1895 (STEVENS, J., dissenting).
9
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660.
10
See, e. g., Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.
11
See, e. g., Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (coerced confession excluded on due process grounds even if "trustworthiness" test met). See also Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183.
12
See, e. g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (delay of over four years held constitutional).
13
See K. Brosi, A Cross-City Comparison of Felony Case Processing 7 (1979). Nationally, as many as 40% of all adult arrestees are released without the filing of charges. Y. Kamisar, W. LaFave, & J. Israel, Modern Criminal Procedure 7 (1974).
14
While it might be argued that the holiday weekend would provide support for the sheriff's claim that he should be immune from damages on the grounds of a good-faith defense, it would surely seem irrelevant to any claim that respondent might have raised in a habeas corpus proceeding that he was being held in violation of his constitutional rights. Yet under the majority's holding, respondent would not be entitled to such relief, since his detention is not a violation of his constitutional rights.
15
See 575 F.2d, at 512 ("[T]he deputies' actions were authorized by Sheriff Baker and the same actions were in keeping with the policies of the Potter County Sheriff's Department at that time").
16
See App. 26 (testimony of Sheriff Baker).
17
As of May 1979, there were 7,285,951 records included in the data base of the National Crime Information Center (NCIC), the national computerized data bank operated by the Federal Bureau of Investigation and designed to assist federal, state, and local law enforcement agencies. In April 1979, an average of 279,966 requests for information from the system were made daily by law enforcement officials.
18
According to a study conducted by the International Association of Chiefs of Police, over 5,000 civil actions were filed against police officers asserting claims of false arrest or imprisonment between 1967 and 1971. This figure represented over 40% of the total number of suits filed during those years alleging any form of police misconduct. See Survey of Police Misconduct Litigation 1967-1971, p. 6 (Americans for Effective Law Enforcement 1974).
19
See, e. g., Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777, in which the police held one of the respondents on the basis of mistaken information received in response to a radio check with headquarters. See also United States v. Mackey, 387 F.Supp. 1121 (Nev.1975) (individual arrested based on inaccurate computer information). See generally Note, Garbage In, Gospel Out: Establishing Probable Cause Through Computerized Criminal Information Transmittals, 28 Hastings L.J. 509 (1976); DeWeese, Reforming our "Record Prisons": A Proposal for the Federal Regulation of Crime Data Banks, 6 Rutgers-Camden L.J. 26, 33 (1974) (citing report of 35% inaccuracy in criminal histories maintained by FBI).
20
In the NCIC system, "[e]ach computerized offender criminal history cycle must have a criminal fingerprint card as its basic source document. This is necessary in order to preserve the personal identification integrity of the system." NCIC, Computerized Criminal History Program; Background, Concept and Policy 4 (FBI 1978). "[T]he long-standing law enforcement fingerprint identification process is an essential element in the criminal justice system." Id., at 13.
| 12
|
443 U.S. 307
99 S.Ct. 2781
61 L.Ed.2d 560
James A. JACKSON, Petitioner,v.Commonwealth of VIRGINIA et al.
No. 78-5283.
Argued March 21, 1979.
Decided June 28, 1979.
Rehearing Denied Oct. 1, 1979.
See 444 U.S. 890, 100 S.Ct. 195.
Syllabus
Petitioner was convicted of first-degree murder after a bench trial in a Virginia court, and his motion and petition in the state courts to set aside the conviction on the ground that there was insufficient evidence of premeditation, a necessary element of first-degree murder, were denied. He then brought a habeas corpus proceeding in Federal District Court, which, applying the "no evidence" criterion of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, found the record devoid of evidence of premeditation and granted the writ. Applying the same criterion, the Court of Appeals reversed, holding that there was some evidence that petitioner had intended to kill the victim.
Held:
1. A federal habeas corpus court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Pp. 313-324.
(a) In re Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. Pp. 316-320.
(b) After In re Winship, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Thompson "no evidence" rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt. Pp. 313-324.
(c) In a challenge to a state conviction brought under 28 U.S.C. § 2254, which requires a federal court to entertain a state prisoner's claim that he is being held in "custody in violation of the Constitution or laws or treaties of the United States," the applicant is entitled to habeas corpus relief if it is found that upon the evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Pp. 320-324.
2. A review of the record in this case in the light most favorable to the prosecution shows that a rational factfinder could have found petitioner guilty beyond a reasonable doubt of first-degree murder under Virginia law. Pp. 324-326.
4th Cir., 580 F.2d 1048, affirmed.
Carolyn J. Colville, Richmond, Va., for petitioner, pro hac vice, by special leave of Court.
Marshall Coleman, Richmond, Va., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. The question in this case is what standard is to be applied in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence.
2
* The petitioner was convicted after a bench trial in the Circuit Court of chesterfield County, Va., of the first-degree murder of a woman named Mary Houston Cole.1 Under Virginia law, murder is defined as "the unlawful killing of another with malice aforethought." Stapleton v. Commonwealth, 123 Va. 825, 96 S.E. 801. Premeditation, or specific intent to kill, distinguishes murder in the first from murder in the second degree; proof of this element is essential to conviction of the former offense, and the burden of proving it clearly rests with the prosecution. Shiflett v. Commonwealth, 143 Va. 609, 130 S.E. 777; Jefferson v. Commonwealth, 214 Va. 432, 201 S.E.2d 749.
3
That the petitioner had shot and killed Mrs. Cole was not in dispute at the trial. The State's evidence established that she had been a member of the staff at the local county jail, that she had befriended him while he was imprisoned there on a disorderly conduct charge, and that when he was released she had arranged for him to live in the home of her son and daughter-in-law. Testimony by her relatives indicated that on the day of the killing the petitioner had been drinking and had spent a great deal of time shooting at targets with his revolver. Late in the afternoon, according to their testimony, he had unsuccessfully attempted to talk the victim into driving him to North Carolina. She did drive the petitioner to a local diner. There the two were observed by several police officers, who testified that both the petitioner and the victim had been drinking. The two were observed by a deputy sheriff as they were preparing to leave the diner in her car. The petitioner was then in possession of his revolver, and the sheriff also observed a kitchen knife in the automobile. The sheriff testified that he had offered to keep the revolver until the petitioner sobered up, but that the latter had indicated that this would be unnecessary since he and the victim were about to engage in sexual activity.
4
Her body was found in a secluded church parking lot a day and a half later, naked from the waist down, her slacks beneath her body. Uncontradicted medical and expert evidence established that she had been shot twice at close range with the petitioner's gun. She appeared not to have been sexually molested. Six cartridge cases identified as having been fired from the petitioner's gun were found near the body.
5
After shooting Mrs. Cole, the petitioner drove her car to North Carolina, where, after a short trip to Florida, he was arrested several days later. In a postarrest statement, introduced in evidence by the prosecution, the petitioner admitted that he had shot the victim. He contended, however, that the shooting had been accidental. When asked to describe his condition at the time of the shooting, he indicated that he had not been drunk, but had been "pretty high." His story was that the victim had attacked him with a knife when he resisted her sexual advances. He said that he had defended himself by firing a number of warning shots into the ground, and had then reloaded his revolver. The victim, he said, then attempted to take the gun from him, and the gun "went off" in the ensuing struggle. He said that he fled without seeking help for the victim because he was afraid. At the trial, his position was that he had acted in self-defense. Alternatively, he claimed that in any event the State's own evidence showed that he had been too intoxicated to form the specific intent necessary under Virginia law to sustain a conviction of murder in the first degree.2
6
The trial judge, declaring himself convinced beyond a reasonable doubt that the petitioner had committed first-degree murder, found him guilty of that offense.3 The petitioner's motion to set aside the judgment as contrary to the evidence was denied, and he was sentenced to serve a term of 30 years in the Virginia state penitentiary. A petition for writ of error to the Virginia Supreme Court on the ground that the evidence was insufficient to support the conviction was denied.4
7
The petitioner then commenced this habeas corpus proceeding in the United States District Court for the Eastern District of Virginia, raising the same basic claim.5 Applying the "no evidence" criterion of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, the District Court found the record devoid of evidence of premeditation and granted the writ. The Court of Appeals for the Fourth Circuit reversed the judgment.6 The court noted that a dissent from the denial of certiorari in a case in this Court had exposed the question whether the constitutional rule of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, might compel a new criterion by which the validity of a state criminal conviction must be tested in a federal habeas corpus proceeding. See Freeman v. Zahradnick, 429 U.S. 1111, 97 S.Ct. 1150, 51 L.Ed.2d 566 (dissent from denial of certiorari). But the appellate court held that in the absence of further guidance from this Court it would apply the same "no evidence" criterion of Thompson v. Louisville that the District Court had adopted. The court was of the view that some evidence that the petitioner had intended to kill the victim could be found in the facts that the petitioner had reloaded his gun after firing warning shots, that he had had time to do so, and that the victim was then shot not once but twice. The court also concluded that the state trial judge could have found that the petitioner was not so intoxicated as to be incapable of premeditation.
8
We granted certiorari to consider the petitioner's claim that under In re Winship, supra, a federal habeas corpus court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt. 439 U.S. 1001, 99 S.Ct. 609, 58 L.Ed.2d 676.
II
9
Our inquiry in this case is narrow. The petitioner has not seriously questioned any aspect of Virginia law governing the allocation of the burden of production or persuasion in a murder trial. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. As the record demonstrates, the judge sitting as factfinder in the petitioner's trial was aware that the State bore the burden of establishing the element of premeditation, and stated that he was applying the reasonable-doubt standard in his appraisal of the State's evidence. The petitioner, moreover, does not contest the conclusion of the Court of Appeals that under the "no evidence" rule of Thompson v. Louisville, supra, his conviction of first-degree murder is sustainable. And he has not attacked the sufficiency of the evidence to support a conviction of second-degree murder. His sole constitutional claim, based squarely upon Winship, is that the District Court and the Court of Appeals were in error in not recognizing that the question to be decided in this case is whether any rational factfinder could have concluded beyond a reasonable doubt that the killing for which the petitioner was convicted was premeditated. The question thus raised goes to the basic nature of the constitutional right recognized in the Winship opinion.
III
A.
10
This is the first of our cases to expressly consider the question whether the due process standard recognized in Winship constitutionally protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt. Upon examination of the fundamental differences between the constitutional underpinnings of Thompson v. Louisville, supra, and of In re Winship, supra, the answer to that question, we think, is clear.
11
It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644; Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207. These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend. E. g., Hovey v. Elliott, 167 U.S. 409, 416-420, 17 S.Ct. 841, 844-846, 42 L.Ed. 215. Cf. Boddie v. Connecticut, 401 U.S. 371, 377-379, 91 S.Ct. 780, 785-787, 28 L.Ed.2d 113. A meaningful opportunity to defend, if not the right to a trial itself, presumes as well that a total want of evidence to support a charge will conclude the case in favor of the accused. Accordingly, we held in the Thompson case that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. See also Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666; Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149; Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134; Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52. The "no evidence" doctrine of Thompson v. Louisville thus secures to an accused the most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty.
12
The Court in Thompson explicitly stated that the due process right at issue did not concern a question of evidentiary "sufficiency." 362 U.S., at 199, 80 S.Ct., at 625. The right established in In re Winship, however, clearly stands on a different footing. Winship involved an adjudication of juvenile delinquency made by a judge under a state statute providing that the prosecution must prove the conduct charged as delinquent—which in Winship would have been a criminal offense if engaged in by an adult—by a preponderance of the evidence. Applying that standard, the judge was satisfied that the juvenile was "guilty," but he noted that the result might well have been different under a standard of proof beyond a reasonable doubt. In short, the record in Winship was not totally devoid of evidence of guilt.
13
The constitutional problem addressed in Winship was thus distinct from the stark problem of arbitrariness presented in Thompson v. Louisville. In Winship, the Court held for the first time that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S., at 364, 90 S.Ct., at 1073. In so holding, the Court emphasized that proof beyond a reasonable doubt has traditionally been regarded as the decisive difference between criminal culpability and civil liability. Id., at 358-362, 90 S.Ct., at 1068-1072. See Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499; Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879; Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302; 9 J. Wigmore, Evidence § 2495, pp. 307-308 (3d ed. 1940). Cf. Woodby v. INS, 385 U.S. 276, 285, 87 S.Ct. 483, 487, 17 L.Ed.2d 362. The standard of proof beyond a reasonable doubt, said the Court, "plays a vital role in the American scheme of criminal procedure," because it operates to give "concrete substance" to the presumption of innocence to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. 397 U.S., at 363, 90 S.Ct., at 1072. At the same time by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. Id., at 372, 90 S.Ct., at 1076 (Harlan, J., concurring).
14
The constitutional standard recognized in the Winship case was expressly phrased as one that protects an accused against a conviction except on "proof beyond a reasonable doubt . . . ." In subsequent cases discussing the reasonable-doubt standard, we have never departed from this definition of the rule or from the Winship understanding of the central purposes it serves. See, e. g., Ivan V. v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659; Lego v. Twomey, 404 U.S. 477, 486-487, 92 S.Ct. 619, 625-626, 30 L.Ed.2d 618; Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335. In short, Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.
B
15
Although several of our cases have intimated that the factfinder's application of the reasonable-doubt standard to the evidence may present a federal question when a state conviction is challenged, Lego v. Twomey, supra, 404 U.S., at 487, 92 S.Ct., at 625; Johnson v. Louisiana, 406 U.S. 356, 360, 92 S.Ct. 1620, 1623, 32 L.Ed.2d 152, the Federal Courts of Appeals have generally assumed that so long as the reasonable-doubt instruction has been given at trial, the no-evidence doctrine of Thompson v. Louisville remains the appropriate guide for a federal habeas corpus court to apply in assessing a state prisoner's challenge to his conviction as founded upon insufficient evidence. See, e. g., Cunha v. Brewer, 511 F.2d 894 (CA8).7 We cannot agree.
16
The Winship doctrine requires more than simply a trial ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence.8 A "reasonable doubt," at a minimum, is one based upon "reason."9 Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a federal trial, such an occurrence has traditionally been deemed to require reversal of the conviction. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680; Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568. See also, e. g., Curley v. United States, 81 U.S.App.D.C. 389, 392-393, 160 F.2d 229, 232-233.10 Under Winship, which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand.
17
A federal court has a duty to assess the historic facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court. For example, on direct review of a state-court conviction, where the claim is made that an involuntary confession was used against the defendant, this Court reviews the facts to determine whether the confession was wrongly admitted in evidence. Blackburn v. Alabama, 361 U.S. 199, 205-210, 80 S.Ct. 274, 279-282, 4 L.Ed.2d 242. Cf. Drope v. Missouri, 420 U.S. 162, 174-175, and n. 10, 95 S.Ct. 896, 905-906, and n. 10, 43 L.Ed.2d 103. The same duty obtains in federal habeas corpus proceedings. See Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770; Brown v. Allen, 344 U.S. 443, 506-507, 73 S.Ct. 397, 445-446, 97 L.Ed. 469 (opinion of Frankfurter, J.).
18
After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.11 But this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Woodby v. INS, 385 U.S., at 282, 87 S.Ct., at 486 (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S., at 362, 92 S.Ct., at 1624-1625. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.12 The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law.13
19
That the Thompson "no evidence" rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt is readily apparent. "[A] mere modicum of evidence may satisfy a 'no evidence' standard . . . ." Jacobellis v. Ohio, 378 U.S. 184, 202, 84 S.Ct. 1676, 1686, 12 L.Ed.2d 793 (Warren, C.J., dissenting). Any evidence that is relevant—that has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence, cf. Fed.Rule Evid. 401—could be deemed a "mere modicum." But it could not seriously be argued that such a "modicum" of evidence could by itself rationally support a conviction beyond a reasonable doubt. The Thompson doctrine simply fails to supply a workable or even a predictable standard for determining whether the due process command ofWinship has been honored.14
C
20
Under 28 U.S.C. § 2254, a federal court must entertain a claim by a state prisoner that he or she is being held in "custody in violation of the Constitution or laws or treaties of the United States." Under the Winship decision, it is clear that a state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a federal constitutional claim. Thus, assuming that state remedies have been exhausted, see 28 U.S.C. § 2254(b), and that no independent and adequate state ground stands as a bar, see Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126; Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149; Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594; Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837, it follows that such a claim is cognizable in a federal habeas corpus proceeding. The respondents have argued, nonetheless, that a challenge to the constitutional sufficiency of the evidence should not be entertained by a federal district court under 28 U.S.C. § 2254.
21
In addition to the argument that a Winship standard invites replication of state criminal trials in the guise of § 2254 proceedings—an argument that simply fails to recognize that courts can and regularly do gauge the sufficiency of the evidence without intruding into any legitimate domain of the trier of fact—the respondents have urged that any departure from the Thompson test in federal habeas corpus proceedings will expand the number of meritless claims brought to the federal courts, will duplicate the work of the state appellate courts, will disserve the societal interest in the finality of state criminal proceedings, and will increase friction between the federal and state judiciaries. In sum, counsel for the State urges that this type of constitutional claim should be deemed to fall within the limit on federal habeas corpus jurisdiction identified in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, with respect to Fourth Amendment claims. We disagree.
22
First, the burden that is likely to follow from acceptance of the Winship standard has, we think, been exaggerated. Federal-court challenges to the evidentiary support for state convictions have since Thompson been dealt with under § 2254. E. g., Freeman v. Stone, 444 F.2d 113 (CA9); Grieco v. Meachum, 533 F.2d 713 (CA1); Williams v. Peyton, 414 F.2d 776 (CA4). A more stringent standard will expand the contours of this type of claim, but will not create an entirely new class of cases cognizable on federal habeas corpus. Furthermore, most meritorious challenges to constitutional sufficiency of the evidence undoubtedly will be recognized in the state courts, and, if the state courts have fully considered the issue of sufficiency, the task of a federal habeas court should not be difficult. Cf. Brown v. Allen, 344 U.S., at 463, 73 S.Ct., at 410.15 And this type of claim can almost always be judged on the written record without need for an evidentiary hearing in the federal court.
23
Second, the problems of finality and federal-state comity arise whenever a state prisoner invokes the jurisdiction of a federal court to redress an alleged constitutional violation. A challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt states a federal constitutional claim. Although state appellate review undoubtedly will serve in the vast majority of cases to vindicate the due process protection that follows from Winship, the same could also be said of the vast majority of other federal constitutional rights that may be implicated in a state criminal trial. It is the occasional abuse that the federal writ of habeas corpus stands ready to correct. Brown v. Allen, supra, at 498-501, 73 S.Ct., at 441-443 (opinion of Frankfurter, J.).
24
The respondents have argued nonetheless that whenever a person convicted in a state court has been given a "full and fair hearing" in the state system—meaning in this instance state appellate review of the sufficiency of the evidence—further federal inquiry—apart from the possibility of discretionary review by this Court—should be foreclosed. This argument would prove far too much. A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. See 28 U.S.C. § 2254(b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur—reflecting as it does the belief that the "finality" of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right—is not one that can be so lightly abjured.
25
The constitutional issue presented in this case is far different from the kind of issue that was the subject of the Court's decision in Stone v. Powell, supra. The question whether a defendant has been convicted upon inadequate evidence is central to the basic question of guilt or innocence. The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. E. g., Mullaney v. Wilbur, 421 U.S., at 697-698, 95 S.Ct., at 1888-1889 (requirement of proof beyond a reasonable doubt is not "limit[ed] to those facts which, that if not proved, would wholly exonerate" the accused). Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar.
26
We hold that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254—if the settled procedural prerequisites for such a claim have otherwise been satisfied—the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.16
IV
27
Turning finally to the specific facts of this case, we reject the petitioner's claim that under the constitutional standard dictated by Winship his conviction of first-degree murder cannot stand. A review of the record in the light most favorable to the prosecution convinces us that a rational factfinder could readily have found the petitioner guilty beyond a reasonable doubt of first-degree murder under Virginia law.
28
There was no question at the trial that the petitioner had fatally shot Mary Cole. The crucial factual dispute went to the sufficiency of the evidence to support a finding that he had specifically intended to kill her. This question, as the Court of Appeals recognized, must be gauged in the light of applicable Virginia law defining the element of premeditation. Under that law it is well settled that premeditation need not exist for any particular length of time, and that an intent to kill may be formed at the moment of the commission of the unlawful act. Commonwealth v. Brown, 90 Va. 671, 19 S.E. 447. From the circumstantial evidence in the record, it is clear that the trial judge could reasonably have found beyond a reasonable doubt that the petitioner did possess the necessary intent at or before the time of the killing.
29
The prosecution's uncontradicted evidence established that the petitioner shot the victim not once but twice. The petitioner himself admitted that the fatal shooting had occurred only after he had first fired several shots into the ground and then reloaded his gun. The evidence was clear that the two shots that killed the victim were fired at close, and thus predictably fatal, range by a person who was experienced in the use of the murder weapon. Immediately after the shooting, the petitioner drove without mishap from Virginia to North Carolina, a fact quite at odds with his story of extreme intoxication. Shortly before the fatal episode, he had publicly expressed an intention to have sexual relations with the victim. Her body was found partially unclothed. From these uncontradicted circumstances, a rational factfinder readily could have inferred beyond a reasonable doubt that the petitioner, notwithstanding evidence that he had been drinking on the day of the killing, did have the capacity to form and had in fact formed an intent to kill the victim.
30
The petitioner's calculated behavior both before and after the killing demonstrated that he was fully capable of committing premeditated murder. His claim of self-defense would have required the trial judge to draw a series of improbable inferences from the basic facts, prime among them the inference that he was wholly uninterested in sexual activity with the victim but that she was so interested as to have willingly removed part of her clothing and then attacked him with a knife when he resisted her advances, even though he was armed with a loaded revolver that he had just demonstrated he knew how to use. It is evident from the record that the trial judge found this story, including the petitioner's belated contention that he had been so intoxicated as to be incapable of premeditation, incredible.
31
Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150. We decline to adopt it today. Under the standard established in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Applying these criteria, we hold that a rational trier of fact could reasonably have found that the petitioner committed murder in the first degree under Virginia law.
32
For these reasons, the judgment of the Court of Appeals is affirmed.
33
It is so ordered.
34
Mr. Justice POWELL took no part in the consideration or decision of this case.
35
Mr. Justice STEVENS, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in the judgment.
36
The Constitution prohibits the criminal conviction of any person except upon proof sufficient to convince the trier of fact of guilt beyond a reasonable doubt. Cf. ante, at 309. This rule has prevailed in our courts "at least from our early years as a Nation." In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368.
37
Today the Court creates a new rule of law—one that has never prevailed in our jurisprudence. According to the Court, the Constitution now prohibits the criminal conviction of any person including, apparently, a person against whom the facts have already been found beyond a reasonable doubt by a jury, a trial judge, and one or more levels of state appellate judges—except upon proof sufficient to convince a federal judge that a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ante, at 319.
38
The adoption of this novel constitutional rule is not necessary to the decision of this case. Moreover, I believe it is an unwise act of lawmaking. Despite its chimerical appeal as a new counterpart to the venerable principle recognized in Winship, I am persuaded that its precipitous adoption will adversely affect the quality of justice administered by federal judges. For that reason I shall analyze this new brainchild with some care.
39
I shall begin by explaining why neither the record in this case, nor general experience with challenges to the sufficiency of the evidence supporting criminal convictions, supports, much less compels, the conclusion that there is any need for this new constitutional precept. I shall next show that it is not logically compelled by either the holding or the analysis in In re Winship, supra. Finally, I shall try to demonstrate why the Court's new rule—if it is not just a meaningless shibboleth threatens serious harm to the quality of our judicial system.
40
* It is, of course, part of this Court's tradition that new rules of law emerge from the process of case-by-case adjudication of constitutional issues. Widespread concern that existing constitutional doctrine is unjust often provides the occasion, and is sometimes even relied upon as a justification, for the exercise of such lawmaking authority by the Court. Without entering the debate over the legitimacy of this justification for judicial action, it is at least certain that it should not be the basis for dramatic—indeed, for any —constitutional lawmaking efforts unless (1) those efforts are necessary to the decision of the case at hand and (2) powerful reasons favor a change in the law. See Ashwander v. TVA, 297 U.S. 288, 345-348, 56 S.Ct. 466, 482-483, 80 L.Ed. 688 (Brandeis, J., concurring).
41
In this case, the Court's analysis fails on both counts. It has accordingly formulated a new constitutional principle under the most dangerous possible circumstances—i. e., where the exercise of judicial authority is neither necessitated nor capable of being limited by "the precise facts to which [the rule is originally] to be applied," Liverpool, N. Y. & P. S. S. Co. v. Emigration Comm'rs, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899, nor even by some broader set of identifiable experiences with the evil supposedly involved.
42
Most significantly, the Court has announced its new constitutional edict in a case in which it has absolutely no bearing on the outcome. The only factual issue at stake is whether petitioner intended to kill his victim. If the evidence is viewed "in the light most favorable to the prosecution," ante, at 319—and, indeed, we may view it through the eyes of the actual factfinder, whose observations about the evidence are recorded in the trial transcript—there can be only one answer to that question no matter what standard of appellate review is applied. In Part IV of its opinion, the Court accepts this conclusion. There is, therefore, no need to fashion a broad new rule of constitutional law to dispose of this squalid but rather routine murder case. Under any view, the evidence is sufficient.
43
The Court's new rule is adopted simply to forestall some hypothetical evil that has not been demonstrated, and in my view is not fairly demonstrable. Although the Judiciary has received its share of criticism—principally because of the delays and costs associated with litigation—I am aware of no general dissatisfaction with the accuracy of the factfinding process or the adequacy of the rules applied by state appellate courts when reviewing claims of insufficiency.
44
What little evidence the Court marshals in favor of a contrary conclusion is unconvincing. See ante, at 317-318 n. 10. The Court is simply incorrect in implying that there are a significant number of occasions when federal convictions are overturned on appeal because no rational trier of fact could have found guilt beyond a reasonable doubt. The two opinions of this Court cited ante, at 317, stand for no such proposition. In neither was a conviction reversed for insufficiency. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568.
45
Moreover, a study of the 127 federal criminal convictions that were reviewed by the various Courts of Appeals and reported in the most recent hardbound volume of the Federal Reporter, Second Series, Volume 589, reveals that only 3 were overturned on sufficiency grounds. And of those, one was overturned under a "no evidence" standard, while the other two, in which a total of only 3 out of 36 counts were actually reversed, arguably involved legal issues masquerading as sufficiency questions.1 It is difficult to believe that the federal courts will turn up more sufficiency problems than this on habeas review when, instead of acting as the first level of review, as in the cases studied, they will be acting as the second, third, or even fourth level of appellate review. In short, there is simply no reason to tinker with an elaborate mechanism that is now functioning well.
II
46
There is nothing in the facts of this case or, so far as the Court has demonstrated, in those of cases like it to warrant today's excursion into constitutional rulemaking. The Court instead portrays its rule as the logical corollary of the principle recognized in Winship regarding the subjective state of mind that persons charged with the responsibility of evaluating the credibility of evidence must possess before they find the defendant guilty in a criminal case. But an examination of Winship reveals that it has nothing to do with appellate, much less habeas corpus, review standards; that the reasoning used in that case to reach its conclusion with respect to the trier of fact does not support, and indeed counsels against, the Court's conclusion with respect to federal habeas judges; and that there is no necessary connection between the rule recognized in Winship and the rule invented by the Court today.
47
In distinct contrast to the circumstances of this case, the facts of Winship presented "a case where the choice of the standard of proof has made a difference: the [trial] judge below forthrightly acknowledged that he believed by a preponderance of the evidence [in], but was not convinced beyond a reasonable doubt" of, the juvenile's guilt. 397 U.S., at 369, 90 S.Ct., at 1075 (Harlan, J., concurring). Because the trier of fact entertained such a doubt, this Court held that the juvenile was constitutionally entitled to the same verdict that an adult defendant in a criminal case would receive. In so holding, the Court merely extended to juveniles a protection that had traditionally been available to defendants in criminal trials in this Nation. Id., at 361, 90 S.Ct., at 1071.
48
But nothing in the Winship opinion suggests that it also bore on appellate or habeas corpus procedures. Although it repeatedly emphasized the function of the reasonable-doubt standard as describing the requisite "subjective state of certitude" of the "factfinder,"2 it never mentioned the question of how appellate judges are to know whether the trier of fact really was convinced beyond a reasonable doubt, or indeed, whether the factfinder was a "rational" person or group of persons.
49
Moreover, the mode of analysis employed in Winship finds no counterpart in the Court's opinion in this case. For example, in Winship, the Court pointed out the breadth of both the historical and the current acceptance of the reasonable-doubt trial standard.3 In this case, by contrast, the Court candidly recognizes that the Federal Courts of Appeals have "generally"rejected the habeas standard that it adopts today. Ante, at 316.4
50
The Winship court relied on nine prior opinions of this Court that bore directly on the issue presented. 397 U.S., at 362, 90 S.Ct., at 1971. Here, the Court purportedly relies on two prior decisions, but as is pointed out, supra, at 2794, neither of these cases itself applied a "reasonable doubt" appellate standard to overturn a conviction, neither purported to be interpreting the Constitution, and neither expressed any view whatsoever on the appropriate standard in collateral proceedings such as are involved in this case.5 As the Court itself notes, we have instead repeatedly endorsed the "no evidence" test, and have continued to do so after Winship was decided. Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666; Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52; Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134; Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149; Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. See also Clyatt v. United States, 197 U.S. 207, 222, 25 S.Ct. 429, 432, 49 L.Ed. 726.
51
The primary reasoning of the Court in Winship is also inapplicable here. The Court noted in that case that the reasonable-doubt standard has the desirable effect of significantly reducing the risk of an inaccurate factfinding and thus of erroneous convictions, as well as of instilling confidence in the criminal justice system. 397 U.S., at 363-364, 90 S.Ct., at 1072-1073. See also id., at 370-372, 90 S.Ct., at 1075-1077 (Harlan, J., concurring). In this case, however, it would be impossible (and the Court does not even try) to demonstrate that there is an appreciable risk that a factfinding made by a jury beyond a reasonable doubt, and twice reviewed by a trial judge in ruling on directed verdict and post-trial acquittal motions and by one or more levels of appellate courts on direct appeal, as well as by two federal habeas courts under the Thompson "no evidence" rule, is likely to be erroneous.6 Indeed, the very premise of Winship is that properly selected judges and properly instructed juries act rationally, that the former will tell the truth when they declare that they are convinced beyond a reasonable doubt and the latter will conscientiously obey and understand the reasonable-doubt instructions they receive before retiring to reach a verdict, and therefore that either factfinder will itself provide the necessary bulwark against erroneous factual determinations. To presume otherwise is to make light of Winship.7
52
Having failed to identify the evil against which the rule is directed, and having failed to demonstrate how it follows from the analysis typically used in due process cases of this character, the Court places all of its reliance on a dry, and in my view incorrect syllogism: If Winship requires the factfinder to apply a reasonable-doubt standard, then logic requires a reviewing judge to apply a like standard.
53
But, taken to its ultimate conclusion, this "logic" would require the reviewing court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (emphasis added). The Court, however, rejects this standard, as well as others that might be considered consistent with Winship. For example, it does not require the reviewing court to view just the evidence most favorable to the prosecution and then to decide whether that evidence convinced it beyond a reasonable doubt, nor whether, based on the entire record, rational triers of fact could be convinced of guilt beyond a reasonable doubt. Instead, and without explanation, it chooses a still narrower standard that merely asks whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ante, at 319.8 It seems to me that if "logic" allows this choice after Winship it should also allow the presumption that the Court has rejected—that trial judges and juries will act rationally and honestly in applying the reasonable-doubt standard, at least so long as the trial is free of procedural error and the record contains evidence tending to prove each of the elements of the offense.
54
Time may prove that the rule the Court has adopted today is the wisest compromise between one extreme that maximizes the protection against the risk that innocent persons will be erroneously convicted and the other extreme that places the greatest faith in the ability of fair procedures to produce just verdicts. But the Court's opinion should not obscure the fact that its new rule is not logically compelled by the analysis or the holding in Winship or in any other precedent, or the fact that the rule reflects a new policy choice rather than the application of a pre-existing rule of law.
III
55
The Court cautions against exaggerating the significance of its new rule. Ante, at 321. It is true that in practice there may be little or no difference between a record that does not contain at least some evidence tending to prove every element of an offense and a record containing so little evidence that no rational factfinder could be persuaded of guilt beyond a reasonable doubt. Moreover, I think the Court is quite correct when it acknowledges that "most meritorious challenges to constitutional sufficiency of the evidence undoubtedly will be recognized in the state courts." Ibid. But this only means that the new rule will seldom, if ever, provide a convicted state prisoner with any tangible benefits. It does not mean that the rule will have no impact on the administration of justice. On the contrary, I am persuaded that it will be seriously harmful both to the state and federal judiciaries.
56
The Court indicates that the new standard to be applied by federal judges in habeas corpus proceedings may be substantially the same as the standard most state reviewing courts are already applying. Ante, at 322. The federal district courts are therefore being directed simply to duplicate the reviewing function that is now being performed adequately by state appellate courts. In my view, this task may well be inconsistent with the prohibition—added by Congress to the federal habeas statute in order to forestall undue federal interference with state proceedings, see Wainwright v. Sykes, 433 U.S. 72, 80, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594—against overturning "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction." 28 U.S.C. § 2254(d). See La Vallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637. In any case, to assign a single federal district judge the responsibility of directly reviewing, and inevitably supervising, the most routine work of the highest courts of a State can only undermine the morale and the esteem of the state judiciary particularly when the stated purpose of the additional layer of review is to determine whether the State's factfinder is "rational."9 Such consequences are intangible but nonetheless significant.
57
The potential effect on federal judges is even more serious. Their burdens are already so heavy that they are delegating to staff assistants more and more work that we once expected judges to perform.10 The new standard will invite an unknown number of state prisoners to make sufficiency challenges that they would not have made under the old rule. Moreover, because the "rational trier of fact" must certainly base its decisions on all of the evidence, the Court's broader standard may well require that the entire transcript of the state trial be read whenever the factfinders' rationality is challenged under the Court's rule.11 Because this task will confront the courts of appeals as well as district courts, it will surely impose countless additional hours of unproductive labor on federal judges and their assistants.12 The increasing volume of work of this character has already led some of our most distinguished lawyers to discontinue or reject service on the federal bench.13 The addition of a significant volume of pointless labor can only impair the quality of justice administered by federal judges and thereby undermine "the respect and confidence of the community in applications of the . . . law." In re Winship, 397 U.S., at 364, 90 S.Ct., at 1072.
58
For these reasons, I am unable to join the Court's gratuitous directive to our colleagues on the federal bench.
1
The degrees of murder in Virginia are specified in Va.Code § 18.2-32 (1975) as follows:
"Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, robbery, burglary or abduction . . . is murder of the first degree, punishable as a Class 2 felony.
"All murder other than capital murder and murder in the first degree is murder of the second degree and is punishable as a Class 3 felony."
Class 2 felonies carry a term of 20 years to life. § 18.2-10(b) (1975). The sentence for Class 3 felonies can range from 5 to 20 years, § 18.2-10(c). Murder itself takes its definition in Virginia from the common law. Stapleton v. Commonwealth, 123 Va. 825, 96 S.E. 801.
2
Under Virginia law, voluntary intoxication—although not an affirmative defense to second-degree murder—is material to the element of premeditation and may be found to have negated it. Hatcher v. Commonwealth, 218 Va. 811, 241 S.E.2d 756.
3
When trial without a jury is had on a not guilty plea in Virginia, the court is to "have and exercise all the powers, privileges and duties given to juries . . . ." Va.Code § 19.2-257 (1975).
4
There is no appeal as of right from a criminal conviction in Virginia. Saunders v. Reynolds, 214 Va. 697, 204 S.E.2d 421. Each petition for writ of error under Va.Code § 19.2-317 (1975) is reviewed on the merits, however, and the effect of a denial is to affirm the judgment of conviction on the merits. Saunders v. Reynolds, supra.
The petition for writ of error alleged that "the trial Court erred in finding the Petitioner guilty of first degree murder in light of the evidence introduced on behalf of the Commonwealth, and on unwarranted inferences drawn from this evidence." The petitioner contended that an affirmance would violate the Due Process Clause of the Fourteenth Amendment. In its order denying Jackson's petition, the Virginia Supreme Court stated it was "of [the] opinion that there is no reversible error in the judgment complained of . . . ." Virginia law requires sufficiency claims to be raised on direct appeal; such a claim may not be raised in a state habeas corpus proceeding. Pettus v. Peyton, 207 Va. 906, 153 S.E.2d 278.
5
The District Court correctly found that the petitioner had exhausted his state remedies on this issue. See n. 4, supra.
6
The opinions of the District Court and the Court of Appeals are not reported. The Court of Appeals' judgment order is reported at 580 F.2d 1048.
7
The Court of Appeals in the present case, of course, recognized that Winship may have changed the constitutional standard in federal habeas corpus. And the Court of Appeals for the Sixth Circuit recently recognized the possible impact of Winship on federal habeas corpus in a case in which it held that "a rational trier of fact could have found the defendant . . . guilty beyond a reasonable doubt." Spruytte v. Koehler, affirmance order, 590 F.2d 335. An even more recent case in that court provoked a lively debate among three of its members regarding the effect of Winship upon federal habeas corpus. The writ was granted in that case, even though the trial record concededly contained "some evidence" of the applicant's guilt. See Speigner v. Jago, 603 F.2d 1208.
8
The trier of fact in this case was a judge and not a jury. But this is of no constitutional significance. The record makes clear that the judge deemed himself "properly instructed."
9
A "reasonable doubt" has often been described as one "based on reason which arises from the evidence or lack of evidence." Johnson v. Louisiana, 406 U.S. 356, 360, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152 (citing cases). For a discussion of variations in the definition used in jury instructions, see Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (rejecting contention that circumstantial evidence must exclude every hypothesis but that of guilt).
10
This, of course, does not mean that convictions are frequently reversed upon this ground. The practice in the federal courts of entertaining properly preserved challenges to evidentiary sufficiency, see Fed.Rule Crim.Proc. 29, serves only to highlight the traditional understanding in our system that the application of the beyond-a-reasonable-doubt standard to the evidence is not irretrievably committed to jury discretion. To be sure, the factfinder in a criminal case has traditionally been permitted to enter an unassailable but unreasonable verdict of "not guilty." This is the logical corollary of the rule that there can be no appeal from a judgment of acquittal, even if the evidence of guilt is overwhelming. The power of the factfinder to err upon the side of mercy, however, has never been thought to include a power to enter an unreasonable verdict of guilty. Carpenters & Joiners v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973. Cf. Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 585-586, 43 L.Ed. 873. Any such premise is wholly belied by the settled practice of testing evidentiary sufficiency through a motion for judgment of acquittal and a postverdict appeal from the denial of such a motion. See generally 4 L. Orfield, Criminal Procedure Under the Federal Rules §§ 29:1-29:29 (1967 and Supp.1978).
11
Until 1972, the Court of Appeals for the Second Circuit took the position advanced today by the opinion concurring in the judgment that the beyond-a-reasonable-doubt standard is merely descriptive of the state of mind required of the factfinder in a criminal case and not of the actual quantum and quality of proof necessary to support a criminal conviction. Thus, that court held that in a jury trial the judge need not distinguish between criminal and civil cases for the purpose of ruling on a motion for judgment of acquittal. United States v. Feinberg, 140 F.2d 592, 594. In United States v. Taylor, 464 F.2d 40 (CA2), Feinberg was overruled, partly on the strength of Winship. The Taylor court adopted the directed-verdict criterion articulated in Curley v. United States, 81 U.S.App.D.C. 389, 392-393, 160 F.2d 229, 232-233 (If "reasonable" jurors "must necessarily have . . . a reasonable doubt" as to guilt, the judge "must require acquittal, because no other result is permissible within the fixed bounds of jury consideration"). This is now the prevailing criterion for judging motions for acquittal in federal criminal trials. See generally 2 C. Wright, Federal Practice and Procedure § 467 (1969 and Supp.1978).
12
Contrary to the suggestion in the opinion concurring in the judgment, the criterion announced today as the constitutional minimum required to enforce the due process right established in Winship is not novel. See, e. g., United States v. Amato, 495 F.2d 545, 549 (CA5) ("whether, taking the view [of the evidence] most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt") (emphasis added); United States v. Jorgenson, 451 F.2d 516, 521 (CA10) (whether, "considering the evidence in the light most favorable to the government, there is substantial evidence from which a jury might reasonably find that an accused is guilty beyond a reasonable doubt") (emphasis added). Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, has universally been understood as a case applying this criterion. See, e. g., Harding v. United States, 337 F.2d 254, 256 (CA8). See generally, 4 Orfield, supra n.10, § 29.28.
13
The question whether the evidence is constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict was actually reached. Just as the standard announced today does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder—if known. See generally 3 F. Wharton, Criminal Procedure § 520 (12th ed. 1975 and Supp.1978).
14
Application of the Thompson standard to assess the validity of a criminal conviction after Winship could lead to absurdly unjust results. Our cases have indicated that failure to instruct a jury on the necessity of proof of guilt beyond a reasonable doubt can never be harmless error. See Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335. Cf. Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468. Thus, a defendant whose guilt was actually proved by overwhelming evidence would be denied due process if the jury was instructed that he could be found guilty on a mere preponderance of the evidence. Yet a defendant against whom there was but one slender bit of evidence would not be denied due process so long as the jury has been properly instructed on the prosecution's burden of proof beyond a reasonable doubt. Such results would be wholly faithless to the constitutional rationale of Winship.
15
The Virginia Supreme Court's order denying Jackson's petition for writ of error does not make clear what criterion was applied to the petitioner's claim that the evidence in support of his first-degree murder conviction was insufficient. See n. 4, supra. At oral argument, counsel for the petitioner contended that the Virginia sufficiency standard is not keyed to Winship. Counsel for the State disagreed. Under these circumstances, we decline to speculate as to the criterion that the state court applied. The fact that a state appellate court invoked the proper standard, however, although entitled to great weight, does not totally bar a properly presented claim of this type under § 2254.
16
The respondents have suggested that this constitutional standard will invite intrusions upon the power of the States to define criminal offenses. Quite to the contrary, the standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Whether the State could constitutionally make the conduct at issue criminal at all is, of course, a distinct question. See Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110; Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.
1
In United States v. Tarr, 589 F.2d 55 (CA1 1978), the court overturned one of two counts of which appellant was convicted because there was insufficient evidence to prove that he had the intent to aid and abet the unauthorized transfer of a machinegun in violation of 26 U.S.C. § 5861(e) and 18 U.S.C. § 2. The court found "no evidence" that appellant had the requisite knowledge. 589 F.2d, at 60.
In United States v. Whetzel, 191 U.S.App.D.C. 184, 589 F.2d 707 (1978), the court overturned 2 of the 35 counts of appellant's conviction because "the Government failed to offer proof that would permit a jury to reasonably infer that the merchandise [appellant] transported had a value of $5,000." Id., 191 U.S.App.D.C., at 188, 589 F.2d, at 711. However, the basis for this determination was that the Government's valuation method, which the trial court allowed the jury to consider, was legally erroneous. Similarly, in United States v. Fearn, 589 F.2d 1316 (CA7 1978), the court overturned the conviction based on a federal nonconstitutional rule, which surely would not apply in habeas review of state convictions, "that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused." Id., at 1321. The court did not independently analyze whether the uncorroborated confession involved in that case could itself have allowed a rational trier of fact to find guilt beyond a reasonable doubt.
2
In In re Winship, 397 U.S., at 364, 90 S.Ct., at 1072, the Court stated: "As we said in Speiser v. Randall, [357 U.S. 513,] 525-526, 78 S.Ct. [1332], at 1342 [2 L.Ed.2d 1460]: 'There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.' To this end, the reasonable-doubt standard is indispensable, for it 'impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.' Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967)." (Emphasis added.)
Later on the same page, 90 S.Ct., at 1073, the Court added:
"It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty." Ibid. (emphasis added).
See also id., at 370, 90 S.Ct., at 1076 (Harlan, J., concurring) ("[A] standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication"). (emphasis added).
3
The Court, relying on treatises that analyzed the law in all 50 States as well as in the federal system, determined both that the reasonable-doubt standard has prevailed at the trial level "at least from our early years as a Nation" and that it "is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt." Id., at 361, 90 S.Ct., at 1071 (emphasis added). See also id., at 372, 90 S.Ct., at 1077 (Harlan, J., concurring). ("It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation") (emphasis added).
4
The Court has undertaken no systematic analysis of the standards for reviewing the sufficiency of the evidence that prevail either in state habeas corpus and other collateral proceedings or in state appellate courts. What sources I have discovered suggest that "varied standards" are in use and that each is "subject to shifting and elastic definitions." Winningham, The Dilemma of the Directed Acquittal, 15 Vand.L.Rev. 699, 705-706 (1962). See ALI Code of Criminal Procedure, Commentary on § 321, pp. 961-962 (1930); Rules of Criminal Procedure 481(c), 522(a) and commentary, 10 U.L.A. (1974).
5
It hardly bears repeating that habeas corpus is not intended as a substitute for appeal, nor as a device for reviewing the merits of guilt determinations at criminal trials. See generally Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067. Instead, it is designed to guard against extreme malfunctions in the state criminal justice systems.
6
As I discussed earlier, see supra, at 329, the incidence of factual error at the trial level in federal courts appears to be exceedingly low, even when measured by the relatively strict appellate standard used by the Federal Courts of Appeals. Presumably the incidence of errors that survive that first level of review is even smaller.
7
Indeed, the Court makes light of Winship by suggesting that, in the absence of its new habeas procedure, the result of that case is simply "a trial ritual." Ante, at 316-317. Far more likely in my view is that the Court's difficult-to-apply but largely unnecessary rule will itself result in a "collateral-attack ritual" that will undermine the integrity of both the state and federal judiciaries. See infra, at 336-339.
8
So far as I can determine, this standard first appeared in our jurisprudence in Mr. Justice STEWART's opinion dissenting from the Court's denial of certiorari in Freeman v. Zahradnick, 429 U.S. 1111, 1112, 1113, 1114, 1116, 97 S.Ct. 1150, 1151, 1152, 1153, 51 L.Ed.2d 566. At that time, it gave the impression of being somewhat narrower than—if only because it was stated quite differently from—the test used by the Courts of Appeals in reviewing federal convictions on direct appeal. See Curley v. United States, 81 U.S.App.D.C. 389, 392-393, 160 F.2d 229, 232-233 (1947). Although the Court twice repeats the Freeman test, see ante, at 313, 319, it now appears either to equate that standard with the—in my view—broader federal direct-review standard, or to endorse both standards despite their differences. See ante, at 318, and nn. 11-12.
9
In the past, collateral review of state proceedings has been justified largely on the grounds (1) that federal judges have special expertise in the federal issues that regularly arise in habeas corpus proceeding, and (2) that they are less susceptible than state judges to political pressures against applying constitutional rules to overturn convictions. See, e. g., Bartels, Avoiding a Comity of Errors, 29 Stan.L.Rev. 27, 30 n. 9 (1976). Cf. Steffel v. Thompson, 415 U.S. 452, 464, 94 S.Ct. 1209, 1218, 39 L.Ed.2d 505; Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705. But neither of these justifications has any force in the present context. State judges are more familiar with the elements of state offenses than are federal judges and should be better able to evaluate sufficiency claims. Moreover, of all decisions overturning convictions, the least likely to be unpopular and thus to distort state decisionmaking processes are ones based on the inadequacy of the evidence. Indeed, once federal courts were divested of authority to second-guess state courts on Fourth Amendment issues, which are far more likely to generate politically motivated state-court decisions, see Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, a like result in this case would seem to be a fortiori.
10
For example, the heavy federal workload has required the 13 regular and 7 senior judges on the Ninth Circuit to hire 30 staff attorneys and 33 law clerks to assist them in their labors.
11
Additional burdens will also be imposed if the Court's rule is extended to federal habeas proceedings reviewing federal criminal trials, as well as to ones reviewing state civil commitment proceedings in which we have recently required at least the "clear and convincing" test to be applied as a matter of federal constitutional law. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323.
This Court's workload will also increase, of course, when its certiorari docket expands to accommodate the challenges generated by the Court's new rule. The effect will be even greater if the Court's opinion is read to require state appellate courts to apply the reasonable-doubt test on direct review and to require this Court to apply it when reviewing the decisions of those courts on certiorari.
12
Professor Bator has persuasively explained how the law of diminishing returns inevitably makes it unwise to have duplicative review processes on the "merits" in criminal cases:
"[I]f a criminal judgment is ever to be final, the notion of legality must at some point include the assignment of final competences to determine legality. But, it may be asked, why should we seek a point at which such a judgment becomes final? Conceding that no process can assure ultimate truth, will not repetition of inquiry stand a better chance of approximat-
ing it? In view of the awesomeness of the consequences of conviction, shouldn't we allow redetermination of the merits in an attempt to make sure that no error has occurred?
"Surely the answer runs, in the first place, in terms of conservation of resources—and I mean not only simple economic resources, but all of the intellectual, moral, and political resources involved in the legal system. The presumption must be, it seems to me, that if a job can be well done once, it should not be done twice. If one set of institutions is as capable of performing the task at hand as another, we should not ask both to do it. The challenge really runs the other way: if a proceeding is held to determine the facts and law in a case, and the processes used in that proceeding are fitted to the task in a manner not inferior to those which would be used in a second proceeding, so that one cannot demonstrate that relitigation would not merely consist of repetition and second-guessing, why should not the first proceeding 'count'? Why should we duplicate effort? After all, it is the very purpose of the first go-around to decide the case. Neither it nor any subsequent go-around can assure ultimate truth. If, then, the previous determination is to be ignored, we must have some reasoned institutional justification why this should be so.
"Mere iteration of process can do other kinds of damage. I could imagine nothing more subversive of a judge's sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else. Of course this does not mean that we should not have appeals. As we shall see, important functional and ethical purposes are served by allowing recourse to an appellate court in a unitary system, and to a federal supreme court in a federal system. The acute question is the effect it will have on a trial judge if we then allow still further recourse where these purposes may no longer be relevant. What seems so objectionable is second-guessing merely for the sake of second-guessing, in the service of the illusory notion that if we only try hard enough we will find the 'truth.' " Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 450-451 (1963).
See also F. James, Civil Procedure 518 (1965).
13
The testimony of Griffin Bell at his confirmation hearings for Attorney General is particularly relevant. When asked by Senator Scott of Virginia why he had earlier resigned from his seat on the Court of Appeals for the Fifth Circuit, Judge Bell responded:
"I found it not to be a rewarding experience any longer. Whether it was because there was no more excitement after the 1960's, or whether it was because the case load changed, but the work load was oppressive. I would not have minded the work load, but the character of the cases changed. It was almost like serving on a criminal court. I did not want to do that any longer." Hearings on the Prospective Nomination of Griffin B. Bell, of Georgia, to be Attorney General, before the Senate Committee on the Judiciary, 95th Cong., 1st Sess., 27 (1977).
| 01
|
443 U.S. 340
99 S.Ct. 2800
61 L.Ed.2d 587
FEDERAL OPEN MARKET COMMITTEE OF the FEDERAL RESERVE SYSTEM, Petitioner,v.David R. MERRILL.
No. 77-1387.
Argued Dec. 6, 1978.
Decided June 28, 1979.
Syllabus
This case presents the question whether the Freedom of Information Act (FOIA) is violated by petitioner's practice, authorized by regulation, 12 CFR § 271.5 (1978), of withholding certain monetary policy directives from the public during the month they are in effect, such directives being published in full in the Federal Register at the end of the month. To implement its authority to conduct open market operations of the Federal Reserve System, petitioner has established a combined investment pool for all Federal Reserve banks, administered by the Account Manager. Petitioner meets approximately once a month to review the overall state of the economy and consider the appropriate course of monetary and open market policy. Its principal conclusions are embodied in a "Domestic Policy Directive," which indicates in general terms whether petitioner wishes to follow an expansionary, deflationary, or unchanged monetary policy in the period ahead, and which includes specific tolerance ranges for the growth in the money supply and for the federal funds rate. The Account Manager is guided by the Domestic Policy Directive in his transactions with dealers who trade in Government securities. A Domestic Policy Directive exists as a document for approximately one month before it appears in the Federal Register, by which time it has been supplanted by a new Directive. Respondent, who had been denied immediate access under the FOIA to certain records of petitioner's policy actions, instituted suit for declaratory and injunctive relief against the operation of 12 CFR § 271.5 and the policy of delayed disclosure. Without expressly considering petitioner's contention that immediate disclosure of Domestic Policy Directives and tolerance ranges would interfere with the conduct of national monetary policy, the District Court entered judgment for respondent, holding, inter alia, that the Directives were "statements of general policy" which, under the FOIA, had to be "currently" published in the Federal Register; that the 1-month delay failed to satisfy the current publication requirement; and that the Directives could not be withheld under Exemption 5 of the FOIA, which applies to documents that are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." The Court of Appeals affirmed, also expressing no opinion about petitioner's assertion that immediate disclosure of Domestic Policy Directives and tolerance ranges would seriously interfere with the conduct of national monetary policy.
Held :
1. Petitioner's Domestic Policy Directives are "intra-agency memorandums" within the meaning of Exemption 5 of the FOIA. Petitioner is clearly an "agency" as that term is defined in the Administrative Procedure Act, and the Directives are essentially petitioner's written instructions to the Account Manager, a subordinate official of the agency. The instructions are binding only upon the Account Manager, and neither establish rules that govern the adjudication of individual rights nor require particular conduct or forbearance by any member of the public. Pp. 352-353.
2. Although Exemption 5 does not confer general authority upon an agency, without regard to any privilege enjoyed by the Government in the civil discovery context, to delay disclosure of intra-agency memorandums that would undermine the effectiveness of the agency's policy if released immediately, nevertheless Exemption 5 does incorporate a qualified privilege for confidential commercial information, at least to the extent that this information is generated by the Government itself in the process leading up to awarding a contract. See Fed.Rule Civ.Proc. 26(c)(7). Pp. 353-360.
3. Although petitioner's Domestic Policy Directives can fairly be described as containing confidential commercial information generated in the process of awarding a contract, it does not necessarily follow that they would be protected against immediate disclosure in the civil discovery process. If the Directives contain sensitive information not otherwise available, and if immediate release of the Directives would significantly harm the Government's monetary functions or commercial interests, then a slight delay in the publication of the Directives, such as that authorized by 12 CFR § 271.5, would be permitted under Exemption 5. Determination of whether, or to what extent, the Directives would in fact be afforded protection in civil discovery must await the development of a proper record on remand. If the District Court concludes that the Directives would be afforded protection, then it should also consider whether the operative portions of the Directives can feasibly be segregated from the purely descriptive materials therein, and the latter made subject to disclosure or publication without delay. See EPA v. Mink, 410 U.S. 73, 91, 93 S.Ct. 827, 837, 35 L.Ed.2d 119. Pp. 361-364.
184 U.S.App.D.C. 203, 565 F.2d 778, vacated and remanded.
Kenneth S. Geller, Washington, D. C., for petitioner.
Victor H. Kramer, Washington, D. C., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The Federal Open Market Committee has a practice, authorized by regulation, 12 CFR § 271.5 (1978),1 of withholding certain monetary policy directives from the public during the month they are in effect. At the end of the month, the directives are published in full in the Federal Register. The United States Court of Appeals for the District of Columbia Circuit held that this practice violates the Freedom of Information Act, 5 U.S.C. § 552. 184 U.S.App.D.C. 203, 565 F.2d 778 (1977). We granted certiorari on the strength of the Committee's representations that this ruling could seriously interfere with the implementation of national monetary policy. 436 U.S. 917, 98 S.Ct. 2260, 56 L.Ed.2d 757 (1978).
2
* Open market operations—the purchase and sale of Government securities in the domestic securities market—are the most important monetary policy instrument of the Federal Reserve System.2 When the Federal Reserve System buys securities in the open market, the payment is ordinarily credited in the reserve account of the seller's bank, increasing the total volume of bank reserves. When the Federal Reserve System sells securities on the open market, the sales price usually is debited in the reserve account of the buyer's bank, decreasing the total volume of reserves. Changes in the volume of bank reserves affect the ability of banks to make loans and investments.3 This in turn has a substantial impact on interest rates and investment activity in the economy as a whole.
3
The Federal Open Market Committee (FOMC or Committee), petitioner herein, by statute has exclusive control over the open market operations of the entire Federal Reserve System. 12 U.S.C. § 263(b). The FOMC4 is charged with conducting open market operations "with a view to accommodating commerce and business and with regard to their bearing upon the general credit situation of the country." § 263(c). To implement this authority, the Committee has established a combined investment pool for all Federal Reserve banks, known as the System Open Market Account. A senior officer of the Federal Reserve Bank of New York is regularly appointed Account Manager of the System Open Market Account.
4
The FOMC meets approximately once a month to review the overall state of the economy and consider the appropriate course of monetary and open market policy. The Committee's principal conclusions are embodied in a statement called the Domestic Policy Directive. The Directive summarizes the economic and monetary background of the FOMC's deliberations and indicates in general terms whether the Committee wishes to follow an expansionary, deflationary, or unchanged monetary policy in the period ahead. The Committee also attempts to agree on specific tolerance ranges for the growth in the money supply and for the federal funds rate.5 The recent practice of the Committee has been to include these tolerance ranges in the Domestic Policy Directive.6
5
The day-to-day operations of the Account Manager are guided by the Domestic Policy Directive and associated tolerance ranges, and by a daily conference call with the staff and at least one member of the FOMC. Subject to this oversight, the Manager has broad discretion in implementing the Committee's policy. In transacting business for the System Open Market Account, he deals with about 25 dealers who actively trade in United States Government and federal agency securities. Roughly half of these dealers are departments of large commercial banks; the others include large investment firms and smaller firms that specialize in Government securities. These dealers trade primarily for their own account. App. 33.
6
The Federal Reserve Board is required by statute to keep a record of all policy actions taken by the FOMC with respect to open market operations. 12 U.S.C. § 247a. To comply with this requirement, the FOMC secretariat prepares a document during the month after each Committee meeting. This document is called the Record of Policy Actions. It contains a general review of economic and monetary conditions at the time of the meeting, the text of the Domestic Policy Directive, any other policy actions taken by the Committee, the votes on these actions, and the dissenting views, if any. A draft of the Record of Policy Actions is distributed to the participants at the next meeting of the Committee for their comments, and is revised and released for publication in the Federal Register a few days later. 41 Fed.Reg. 22261 (1976).
7
In other words, the Record of Policy Actions is published in the Federal Register almost as soon as it is drafted and approved in final form by the Committee.7 The Domestic Policy Directive, however, exists, as a document for approximately one month before it makes its first public appearance as part of the Record of Policy Actions. Moreover, by the time the Domestic Policy Directive is released as part of the Record of Policy Actions, it has been supplanted by a new Directive and is no longer the current and effective policy of the FOMC.
II
8
Respondent, when this action was instituted in May 1975, was a law student at Georgetown University Law Center, Washington, D.C. App. 8. The complaint alleged that he had "developed a strong interest in administrative law and the operation of agencies of the federal government," and had formed a desire to study "the process by which the FOMC regulates the national money supply through the frequent adoption of domestic policy directives." Ibid.
9
In pursuit of these professed academic interests, respondent in March 1975, through counsel, filed a request under the Freedom of Information Act (FOIA) seeking the "[r]ecords of policy actions taken by the Federal Open Market Committee at its meetings in January 1975 and February 1975, including, but not limited to, instructions to the Manager of the Open Market Account and any other person relating to the purchase and sale of securities and foreign currencies." Id., at 13.8 The FOMC denied the request, explaining that the Records of Policy Actions, including the Domestic Policy Directive, were available only on a delayed basis under the policy set forth in 12 CFR § 271.5.9 An administrative appeal resulted in release of the requested documents, but only because the withholding period by then had expired. Governor Robert C. Holland of the Federal Reserve Board, on behalf of the Committee, wrote to respondent's counsel that the Committee remained firmly committed to what he described as "a legislative policy against premature disclosures which would impair the effectiveness of the operations of Government agencies." App. 21.
10
Respondent then instituted this litigation in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief against the operation of 12 CFR § 271.5 and the policy of delayed disclosure. App. 7. The FOMC in due course moved for summary judgment, and submitted affidavits from Committee members and staff that generally advanced two reasons why immediate disclosure of the Domestic Policy Directives and tolerance ranges would interfere with the FOMC's statutory functions.
11
First, the Committee argued that immediate release of the Domestic Policy Directive and tolerance ranges would make it difficult to implement limited or gradual changes in monetary policy. Disclosure of the FOMC's monetary policy objectives would have an immediate "announcement effect," as market participants moved quickly to adjust their holdings of Government securities in anticipation of purchases or sales by the System Open Market Account. This would result in sudden price and interest rate movements, which might be considerably larger than the Committee contemplated and might be beyond the power of the FOMC or the Federal Reserve to control.
12
Second, the FOMC contended that immediate disclosure of the Directive and tolerance ranges would permit large institutional investors, who would have the means to analyze the information quickly and act rapidly in buying or selling securities, to obtain an unfair advantage over small investors.
13
Respondent submitted no counter-affidavits to these contentions, since he considered them "irrelevant" to the legal issues presented. Brief for Respondent 33-34, n. 12. The District Court apparently agreed. Without addressing the FOMC's affidavits, or entering any findings about the effect that premature disclosure might have on open market operations, the court granted summary judgment for respondent. 413 F.Supp. 494 (DC 1976). It held, as the FOMC had conceded, that the Domestic Policy Directives were "statements of general policy . . . formulated and adopted by the agency" that, under 5 U.S.C. § 552(a)(1)(D), had to be "currently publish[ed] in the Federal Register for the guidance of the public."10 It further concluded that by waiting until a new Directive had been promulgated before publishing the preceding one, the FOMC was in violation of the "current-publication" requirement. 413 F.Supp., at 505. Finally, the court rejected the Committee's contentions that the Domestic Policy Directives could be withheld under either Exemption 2 of the FOIA, relating to internal personnel rules and practices of an agency, or Exemption 5, relating to inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with an agency.11
14
On appeal to the United States Court of Appeals for the District of Columbia Circuit, the FOMC did not contest the ruling that the Domestic Policy Directives were "statements of general policy" that, under § 552(a)(1)(D), had to be "currently publish[ed]" in the Federal Register. Similarly, it did not challenge the conclusion that the 1-month delay failed to satisfy the current publication requirement. Moreover, the Committee abandoned the argument that the Directives were covered by Exemption 2. The Committee, instead, concentrated on the contention that premature disclosure would seriously disrupt the conduct of open market operations, and continued to urge that the policy of delayed disclosure was authorized by Exemption 5.
15
The Court of Appeals rejected the FOMC's Exemption 5 arguments. It held that the Domestic Policy Directives were not exempt from disclosure under the "executive" privilege attaching to predecisional communications. It also ruled that Exemption 5 was not designed to protect against premature disclosure of otherwise final decisions. Finally, it concluded that there was no other civil discovery privilege that could serve as a basis for holding that the Directives were exempt from disclosure under Exemption 5. Like the District Court, the Court of Appeals expressed no opinion about the FOMC's assertion that immediate disclosure of the Domestic Policy Directives and tolerance ranges would seriously interfere with the conduct of national monetary policy. If the assertion were true, the court suggested, Congress could specifically exempt this material from the prompt-disclosure requirement of the FOIA.12 184 U.S.App.D.C. 203, 565 F.2d 778 (1977).
III
16
This Court has had frequent occasion to consider the FOIA,13 and it is not necessary to describe its history and background in detail. It suffices to say that the purpose of the FOIA is "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). The Act makes available to any person all agency records, which it divides into three categories: some must be currently published in the Federal Register, 5 U.S.C. § 552(a)(1); others must be "promptly publish[ed]" or made publicly available and indexed, § 552(a)(2); and all others must be promptly furnished on request, § 552(a)(3). It then defines nine specific categories of records to which the Act "does not apply." § 552(b). The district court is given jurisdiction to enjoin an agency from withholding agency records, and to order the production of any agency records improperly withheld. § 552(a)(4)(B). The burden in any such proceeding is on the agency to establish that the requested information is exempt. Ibid.
17
At issue here is Exemption 5 of the FOIA, which provides that the affirmative disclosure provisions do not apply to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." § 552(b)(5). Exemption 5, in other words, applies to documents that (a) are "inter-agency or intra-agency memorandums or letters," and (b) consist of material that "would not be available by law to a party . . . in litigation with the agency."
A.
18
There can be little doubt that the FOMC's Domestic Policy Directives constitute "inter-agency or intra-agency memorandums or letters." FOMC is clearly an "agency" as that term is defined in the Administrative Procedure Act. 5 U.S.C. §§ 551(1), 552(e). And the Domestic Policy Directives are essentially the FOMC's written instructions to the Account Manager, a subordinate official of the agency. These instructions, although possibly of interest to members of the public, are binding only upon the Account Manager. The Directives do not establish rules that govern the adjudication of in dividual rights, nor do they require particular conduct or forbearance by any member of the public. They are thus "intra-agency memorandums" within the meaning of Exemption 5.
B
19
Whether the Domestic Policy Directives "would not be available by law to a party . . . in litigation with the agency" presents a more difficult question. The House Report states that Exemption 5 was intended to allow an agency to withhold intra-agency memoranda which would not "routinely be disclosed to a private party through the discovery process in litigation with the agency . . . ." H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966), U.S.Code Cong. & Admin.News, pp. 2418, 2428. EPA v. Mink, 410 U.S. 73, 86-87, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1973), recognized that one class of intra-agency memoranda shielded by Exemption 5 is agency reports and working papers subject to the "executive" privilege for predecisional deliberations. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), confirmed this interpretation, and further held that Exemption 5 encompasses materials that constitute a privileged attorney's work product. Id., at 154-155, 95 S.Ct., at 1518.
20
The FOMC does not contend that the Domestic Policy Directives are protected by either the privilege for predecisional communications or the privilege for an attorney's work product.14 Its principal argument, instead, is that Exemption 5 confers general authority upon an agency to delay disclosure of intra-agency memoranda that would undermine the effectiveness of the agency's policy if released immediately. This general authority exists, according to the FOMC, even if the memoranda in question could be routinely discovered by a party in civil litigation with the agency.
21
We must reject this analysis. First, since the FOMC does not indicate that the asserted authority to defer disclosure of intra-agency memoranda rests on a privilege enjoyed by the Government in the civil discovery context, its argument is fundamentally at odds with the plain language of the statute. EPA v. Mink, 410 U.S., at 85-86, 93 S.Ct., at 835; NLRB v. Sears, Roebuck & Co., 421 U.S., at 149, 95 S.Ct., at 1515. In addition, the Committee's argument proves too much. Such an interpretation of Exemption 5 would appear to allow an agency to withhold any memoranda, even those that contain final opinions and statements of policy, whenever the agency concluded that disclosure would not promote the "efficiency" of its operations or otherwise would not be in the "public interest." This would leave little, if anything, to FOIA's requirement of prompt disclosure, and would run counter to Congress' repeated rejection of any interpretation of the FOIA which would allow an agency to withhold information on the basis of some vague "public interest" standard. H.R.Rep. No. 1497, supra, at 5, 9; S.Rep. No. 813, supra, at 3, 5, 8; EPA v. Mink, 410 U.S., at 78-80, 93 S.Ct., at 831-32.
22
The FOMC argues, in the alternative, that there are several civil discovery privileges, in addition to the privileges for predecisional communications and an attorney's work product, that would allow a district court to delay discovery of documents such as the Domestic Policy Directives until they are no longer operative. The Committee contends that Exemption 5 incorporates each of these privileges, and that it thus shields the Directives from a requirement of immediate disclosure.
23
Preliminarily, we note that it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 254 n. 12, 98 S.Ct. 2311, 2321, 57 L.Ed.2d 159 (1978) (POWELL, J., concurring in part and dissenting in part). There are, to be sure, statements in our cases construing Exemption 5 that imply as much. See, e. g., Renegotiation Board v. Grumman Aircraft Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 1500, 44 L.Ed.2d 57 (1975) ("Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context"). Heretofore, however, this Court has recognized only two privileges in Exemption 5, and, as NLRB v. Sears, Roebuck & Co., 421 U.S., at 150-154, 95 S.Ct., at 1516-1518, emphasized, both these privileges are expressly mentioned in the legislative history of that Exemption.15 Moreover, material that may be subject to some other discovery privilege may also be exempt from disclosure under one of the other eight exemptions of FOIA, particularly Exemptions 1, 4, 6, and 7.16 We hesitate to construe Exemption 5 to incorporate a civil discovery privilege that would substantially duplicate another exemption. Given that Congress specifically recognized that certain discovery privileges were incorporated into Exemption 5, and dealt with other civil discovery privileges in exemptions other than Exemption 5, a claim that a privilege other than executive privilege or the attorney privilege is covered by Exemption 5 must be viewed with caution.
24
The most plausible of the three privileges asserted by the FOMC17 is based on Fed.Rule Civ.Proc. 26(c)(7), which provides that a district court, "for good cause shown," may order "that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way."18 The Committee argues that the Domestic Policy Directives constitute "confidential . . . commercial information," at least during the month in which they provide guidance to the Account Manager, and that they therefore would be privileged from civil discovery during this period.
25
The federal courts have long recognized a qualified evidentiary privilege for trade secrets and other confidential commercial information. See, e. g., E. I. du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100, 103, 37 S.Ct. 575, 576, 61 L.Ed. 1016 (1917); 8 J. Wigmore, Evidence § 2212, pp. 156-157 (McNaughton rev. 1961). The Federal Rules of Civil Procedure provide similar qualified protection for trade secrets and confidential commercial information in the civil discovery context. Federal Rule Civ.Proc. 26(c)(7), which replaced former Rule 30(b) in 1970, was intended in this respect to "reflec[t] existing law." Advisory Committee's Notes on Fed.Rule Civ.Proc. 26, 28 U.S.C. App., p. 444. The Federal Rules, of course, are fully applicable to the United States as a party. See, e. g., United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 985, 2 L.Ed.2d 1077 (1958); 4 J. Moore, Federal Practice ¶ 26.61[2], p. 26-263 (1976). And we see no reason why the Government could not, in an appropriate case, obtain a protective order under Rule 26(c)(7).19
26
To be sure, the House and Senate Reports do not provide the same unequivocal support for an Exemption 5 privilege for "confidential . . . commercial information" as they do for the executive and attorney work product privileges. Nevertheless, we think that the House Report, when read in conjunction with the hearings conducted by the relevant House and Senate Committees, can fairly be read as authorizing at least a limited form of Exemption 5 protection for "confidential . . . commercial information."
27
In hearings that preceded the enactment of the FOIA, various agencies complained that the original Senate bill, which did not include the present Exemption 5,20 failed to provide sufficient protection for confidential commercial information and other information about Government business transactions. For example, the Department of Defense expressed concern that information relating to the purchase or sale of real estate, materials, or other property might not be protected, Hearings on S. 1160, etc., before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 418 (1965); the General Services Administration stressed the need to avoid early disclosure of information that might prejudice the Government's bargaining position in business transactions, id., at 480; and the Post Office Department urged that in matters such as the negotiation of contracts, it should stand on the same footing as a private party. Hearings on H.R. 5012, etc. before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 224 (1965). Included among those expressing such criticism was the Acting General Counsel of the Department of the Treasury, who specifically referred to the Department's concern about premature disclosure of information concerning Federal Reserve open market operations. Id., at 49.21
28
After the hearings were completed, Congress amended the provision that ultimately became Exemption 5 to provide for nondisclosure of materials that "would not be available by law to a party . . . in litigation with the agency." The House Report, echoing the Report on the original Senate bill, S.Rep. No. 1219, 88th Cong., 2d Sess., 6-7, 13-14 (1964), explained that one purpose of the revised Exemption 5 was to protect internal agency deliberations and thereby ensure "full and frank exchange of opinions" within an agency. H.R.Rep. No. 1497, supra, n. 15, at 10, U.S.Code Cong. & Admin.News 1966, p. 2427. It then added, significantly:
29
"Moreover, a Government agency cannot always operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or regulation. This clause is intended to exempt from disclosure this and other information and records wherever necessary without, at the same time, permitting indiscriminate administrative secrecy" (emphasis added). Ibid.
30
In light of the complaints registered by the agencies about premature disclosure of information relating to Government contracts, we think it is reasonable to infer that the House Report, in referring to "information . . . generated [in] the process of awarding a contract," specifically contemplated a limited privilege for confidential commercial information pertaining to such contracts.22
31
This conclusion is reinforced by consideration of the differences between commercial information generated in the process of awarding a contract, and the type of material protected by executive privilege. The purpose of the privilege for predecisional deliberations is to insure that a decisionmaker will receive the unimpeded advice of his associates. The theory is that if advice is revealed, associates may be reluctant to be candid and frank. It follows that documents shielded by executive privilege remain privileged even after the decision to which they pertain may have been effected, since disclosure at any time could inhibit the free flow of advice, including analysis, reports, and expression of opinion within the agency. The theory behind a privilege for confidential commercial information generated in the process of awarding a contract, however, is not that the flow of advice may be hampered, but that the Government will be placed at a competitive disadvantage or that the consummation of the contract may be endangered. Consequently, the rationale for protecting such information expires as soon as the contract is awarded or the offer withdrawn.
32
We are further convinced that recognition of an Exemption 5 privilege for confidential commercial information generated in the process of awarding a contract would not substantially duplicate any other FOIA exemption. The closest possibility is Exemption 4, which applies to "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). Exemption 4, however, is limited to information "obtained from a person," that is, to information obtained outside the Government. See 5 U.S.C. § 551(2). The privilege for confidential information about Government contracts recognized by the House Report, in contrast, is necessarily confined to information generated by the Federal Government itself.
33
We accordingly conclude that Exemption 5 incorporates a qualified privilege for confidential commercial information, at least to the extent that this information is generated by the Government itself in the process leading up to awarding a contract.23
C
34
The only remaining questions are whether the Domestic Policy Directives constitute confidential commercial information of the sort given qualified protection by Exemption 5, and, if so, whether they would in fact be privileged in civil discovery. Although the analogy is not exact, we think that the Domestic Policy Directives and associated tolerance ranges are substantially similar to confidential commercial information generated in the process of awarding a contract. During the month that the Directives provide guidance to the Account Manager, they are surely confidential, and the information is commercial in nature because it relates to the buying and selling of securities on the open market. Moreover, the Directive and associated tolerance ranges are generated in the course of providing ongoing direction to the Account Manager in the execution of large-scale transactions in Government securities; they are, in this sense, the Government's buy-sell order to its broker.
35
Although the Domestic Policy Directives can fairly be described as containing confidential commercial information generated in the process of awarding a contract, it does not necessarily follow that they are protected against immediate disclosure in the civil discovery process. As with most evidentiary and discovery privileges recognized by law, "there is no absolute privilege for trade secrets and similar confidential information." 8 C. Wright & A. Miller, Federal Practice and Procedure § 2043, p. 300 (1970); 4 J. Moore, Federal Practice ¶ 26.60[4], p. 26-242 (1970). Cf. United States v. Nixon, 418 U.S. 683, 705-707, 94 S.Ct. 3090, 3106-07, 41 L.Ed.2d 1039 (1974). "The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection." Advisory Committee's Notes on Fed.Rule Civ.Proc. 26, 28 U.S.C.App., p. 444; 4 J. Moore, Federal Practice ¶ 26.75, pp. 26-540 to 26-543 (1970).24 We are mindful that "the discovery rules can only be applied under Exemption 5 by way of rough analogies," EPA v. Mink, 410 U.S., at 86, 93 S.Ct., at 835, and, in particular, that the individual FOIA applicant's need for information is not to be taken into account in determining whether materials are exempt under Exemption 5. Ibid.; NLRB v. Sears, Roebuck & Co., 421 U.S., at 149 n. 16, 95 S.Ct. at 1516. Nevertheless, the sensitivity of the commercial secrets involved, and the harm that would be inflicted upon the Government by premature disclosure, should continue to serve as relevant criteria in determining the applicability of this Exemption 5 privilege. Accordingly, we think that if the Domestic Policy Directives contain sensitive information not otherwise available, and if immediate release of these Directives would significantly harm the Government's monetary functions or commercial interests, then a slight delay in the publication of the Directives, such as that authorized by 12 CFR § 271.5, would be permitted under Exemption 5.
36
Here, the District Court made no findings about the impact of immediate disclosure of the Domestic Policy Directives and tolerance ranges. The Committee submitted unanswered affidavits purporting to show that prompt disclosure of this information would interfere with the orderly execution of the FOMC's monetary policies, and would give unfair advantage to large investors. In this Court, the FOMC has sought to supplement those affidavits by arguing, for the first time, that immediate release of the Domestic Policy Directives would jeopardize the Government's commercial interests by imposing substantial additional borrowing costs on the United States Treasury.25 Respondent has sought, again for the first time, to show that there is substantial disagreement among experts about the impact of prompt disclosure of the Directives, and that some experts actually believe prompt disclosure would have a beneficial effect. Brief for Respondent 33-46.
37
Under the circumstances, we do not consider whether, or to what extent, the Domestic Policy Directives would in fact be afforded protection in civil discovery. That determination must await the development of a proper record. If the District Court on remand concludes that the Directives would be afforded protection, then it should also consider whether the operative portions of the Domestic Policy Directives26 can feasibly be segregated from the purely descriptive materials therein, and the latter made subject to disclosure or publication without delay. See EPA v. Mink, 410 U.S., at 91, 93 S.Ct., at 837.
38
The judgment of the Court of Appeals is therefore vacated, and the case is remanded for further proceedings consistent with this opinion.
39
It is so ordered.
40
Mr. Justice STEVENS, with whom Mr. Justice STEWART* joins, dissenting.
41
The practical question in this case is whether the Federal Reserve System's monthly changes in monetary policy should be made available immediately to the general public or should be filtered into the market through a handful of sophisticated representatives of large commercial banks and investment firms. The legal question is whether the statutory requirement that statements describing such policy changes be published "currently" means what it says.
42
On the practical level, it seems to me that the operation of an "open" market committee should be open to all—not just to a selected few.1 On the legal level, I am satisfied that the District Court and the Court of Appeals correctly read the plain language of the Freedom of Information Act.
43
The FOIA, 5 U.S.C. § 552(a)(1), provides that every "agency shall separately state and currently publish in the Federal Register for the guidance of the public . . . statements of general policy . . . formulated and adopted by the agency." It is agreed that the Federal Open Market Committee is an agency within the meaning of the Act, and both the District Court and the Court of Appeals concluded that the monthly monetary policy directives are "statements of general policy." This Court does not disagree with that conclusion. It is plain therefore that the statute imposes a mandatory requirement of "current" publication.
44
In my opinion that requirement is not satisfied by withholding publication "temporarily"—i. e., until the policy directives become obsolete. The same principle of construction should apply to monthly policy statements as to annual policy statements. They should be made public while they are effective.
45
Although the Court recognizes that these policy directives may not be permanently withheld from public view without violating the Act, it nonetheless concludes that their temporary suppression is warranted by one of the statutory exemptions to the Act. I find this conclusion incomprehensible.
46
In the first place, nothing in any of the nine exemptions to the Act has any bearing on the present situation.2 But more fundamentally, the Court's temporary exemption is inconsistent with the structure of the Act. Under FOIA, all information must be released, in the specified manner—i. e., in this case, "currently"—unless it fits into one of nine categories. As to material in those categories, the Act simply "does not apply." 5 U.S.C. § 552(b) (emphasis added). Between "current" release and total exemption, therefore, the statute establishes no middle ground. Accordingly, I cannot agree with the Court's recognition of a third alternative for "exempt" material to which the Act nonetheless applies—albeit on a delayed basis. If there is to be a new category subject to full disclosure but only after a "slight delay," I believe it should be created by Congress rather than the Court.
47
The Court's newly created category will impose substantial litigation costs and burdens on any requesting party seeking to overcome an agency's objection to immediate disclosure. For henceforth that party must prove that compliance with the statute's disclosure mandate would not "significantly harm the Government's monetary functions or commercial interests." Ante, at 363. The imposition of such an obstacle to prompt disclosure is inconsistent with the overriding statutory policy of giving the ordinary citizen unfettered access to information about how his Government operates.3
48
I respectfully dissent.
1
The regulation provides:
"§ 271.5 Deferment of availability of certain information.
"(a) Deferred availability of information. In some instances, certain types of information of the Committee are not published in the Federal Register or made available for public inspection or copying until after such period of time as the Committee may determine to be reasonably necessary to avoid the effects described in paragraph (b) of this section or as may otherwise be necessary to prevent impairment of the effective discharge of the Committee's statutory responsibilities.
"(b) Reasons for deferment of availability. Publication of, or access to, certain information of the Committee may be deferred because earlier disclosure of such information would:
"(1) Interfere with the orderly execution of policies adopted by the Committee in the performance of its statutory functions;
"(2) Permit speculators and others to gain unfair profits or to obtain advantages by speculative trading in securities, foreign exchange, or otherwise;
"(3) Result in unnecessary or unwarranted disturbances in the securities market;
"(4) Make open market operations more costly;
"(5) Interfere with the orderly execution of the objectives or policies of other Government agencies concerned with domestic of foreign economic or fiscal matters; or
"(6) Interfere with, or impair the effectiveness of, financial transactions with foreign banks, bankers, or countries that may influence the flow of gold and of dollar balances to or from foreign countries."
2
App. 46, 55. See generally Federal Reserve Board, The Federal Reserve System, Purposes and Functions 14-15, 49-67 (1974).
Other major economic tools employed by the Federal Reserve System include the setting of reserve requirements for commercial banks that are members of the Federal Reserve System, and the determination of the discount rate for borrowing by member banks. App. 46, 56.
3
Under the Federal Reserve Board's Regulation D, 12 CFR Pt. 204 (1978), member banks are required to hold reserves in a prescribed ratio to deposits. Member banks typically respond to an increase in available reserves (or to a reduction in the required reserve-to-deposit ratio) by either making new loans and investments, or by selling their excess reserves to other member banks that can take advantage of these reserves because of particular lending or investment opportunities. App. 47.
4
The Committee is composed of the seven members of the Board of Governors of the Federal Reserve System, and five representatives of the Federal Reserve banks. 12 U.S.C. § 263(a).
5
The tolerance ranges for the growth of the money supply are stated in terms of "M1," defined as currency in circulation plus demand deposits held by the public in commercial banks, and "M2," defined as "M1" plus time and savings deposits, other than large negotiable certificates of deposit, held in commercial banks. App. 81. The federal funds rate is the rate at which commercial banks are willing to lend or borrow immediately available reserves on an overnight basis. Id., at 78. As such, it is particularly sensitive to changes in the availability of reserves. The Committee's use of these concepts, expressed in terms of tolerance ranges, is illustrated by the operative language of the Domestic Policy Directive adopted at the October 17, 1978, meeting of the FOMC:
"Early in the period before the next regular meeting, System open market operations shall be directed at attaining a weekly-average Federal funds rate slightly above the current level. Subsequently, operations shall be directed at maintaining the weekly-average Federal funds rate within the range of 83/4 to 91/4 per cent. In deciding on the specific objective for the Federal funds rate the Manager shall be guided mainly by a range of tolerance for growth in M -2 over the October-November period of 51/2 to 91/2 per cent, provided that growth of M -1 over that period does not exceed an annual rate of 61/2 per cent." 64 Fed.Res.Bull. 947, 956 (1978).
6
Prior to February 1977, the Domestic Policy Directives did not include specific tolerance ranges for the growth in money supply and the federal funds rate. Instead, the operative language of the Directives contained such general phrases as "the Committee seeks to achieve some easing in bank reserve and money market conditions, provided that the monetary aggregates do not appear to be growing excessively"; "the Committee seeks to achieve bank reserve and money market conditions consistent with more rapid growth in monetary aggregates over the months ahead than has occurred in recent months"; or "the Committee seeks to achieve bank reserve and money market conditions consistent with moderate growth in monetary aggregates over the months ahead." App. 82-83. The record does not indicate in what manner the tolerance ranges were communicated to the Account Manager during this period.
After February 1977, the operative language of the Directives began to incorporate specific tolerance ranges of the form set forth in n. 5, supra. The record contains no explanation as to why the FOMC began including the tolerance ranges in the Directives at that time. Nor is there any explanation in the Record of Policy Actions issued after the February meeting. 63 Fed.Res.Bull. 380-394 (1977).
7
Prior to 1967, the Records of Policy Actions were published only in the Federal Reserve Board's Annual Report to Congress. See Committee's Press Release, Mar. 24, 1975, App. 59; 413 F.Supp. 494, 504 (DC 1976). In response to the passage of the Freedom of Information Act in that year, the FOMC instituted a policy of releasing the Record of Policy Actions, including the Domestic Policy Directive, 90 days after the Directive was adopted by the Commission. Ibid. On March 21, 1975, just before the instant lawsuit was filed, the period of delay was shortened to 45 days. 40 Fed.Reg. 13204 (1975). The present policy was adopted on May 24, 1976. 41 Fed.Reg. 22261 (1976).
Because the Record of Policy Actions is not completed and formally adopted until the meeting after the meeting to which it applies, respondent apparently conceded in the Court of Appeals that the Committee's present guidelines for release of that document are consistent with the FOIA. See 184 U.S.App.D.C. 203, 207, 565 F.2d 778, 782 (1977).
8
Respondent also requested the Memoranda of Discussion for the January 1975 and February 1975 meetings. App. 13. Memoranda of Discussion were detailed minutes of the statements made and actions taken at the Committee's meetings. The District Court held that under 5 U.S.C. § 552(b)(5) respondent was entitled to those parts of the Memoranda that contained "reasonably segregable" statements of fact, 413 F.Supp., at 506, and the parties subsequently agreed on the factual portions of the Memoranda to be produced. This ruling was not challenged in the Court of Appeals, see 184 U.S.App.D.C., at 207 n. 8, 565 F.2d, at 782 n. 8, and is not in issue here.
In May 1976, the FOMC voted to discontinue the preparation of Memoranda of Discussion. 62 Fed.Res.Bull. 581, 590-591 (1976).
9
In accordance with the then-current policy of the FOMC, see n. 7, supra, the regulation specifically provided that "the Committee's current economic policy directive adopted at each meeting of the Committee is published in the Federal Register approximately 90 days after the date of its adoption." 12 CFR § 271.5 (1975).
10
Section 552 provides:
"(a) Each agency shall make available to the public information as follows:
"(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—
* * * * *
"(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency."
The District Court also held that policy actions of the FOMC other than the Domestic Policy Directive had to be indexed and promptly disclosed pursuant to 5 U.S.C. § 552(a)(B).
11
Title 5 U.S.C. § 552 also provides:
"(b) This section does not apply to matters that are—
* * * * *
"(2) related solely to the internal personnel rules and practices of an agency;
* * * * *
"(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."
12
The third exemption specified by 5 U.S.C. § 552(b) covers matters that are
"(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld."
13
See EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Renegotiation Board v. Grumman Aircraft Corp., 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975); FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975); Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979).
14
Although the FOMC argued in the Court of Appeals that the Domestic Policy Directives were protected by executive privilege, it has not presented that argument here. Brief for Petitioner 30 n. 22.
15
See H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966) (referring to "advice from staff assistants and the exchange of ideas among agency personnel"); S.Rep. No. 813, 89th Cong., 1st Sess., 2 (1965) (noting that Exemption 5 includes "the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties").
16
Exemption 1 applies to classified national security information; Exemption 4 applies to trade secrets and privileged commercial or financial information obtained from a person; Exemption 6 covers personnel and medical files the disclosure of which would constitute a clearly unwarranted invasion of privacy; and Exemption 7 shields certain types of investigatory records gathered for law enforcement purposes. 5 U.S.C. § 552(b)(1), (4), (6), (7).
17
The two other privileges advanced by the FOMC are a privilege for "official government information" whose disclosure would be harmful to the public interest, see Machin v. Zuckert, 114 U.S.App.D.C. 335, 338, 316 F.2d 336, 339, cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963), and a privilege based on Fed.Rule Civ.Proc. 26(c)(2), which permits a court to order that discovery "may be had only on specified terms and conditions, including a designation of the time or place." In light of our disposition of this case, we do not consider whether either asserted privilege is incorporated in Exemption 5.
18
The full text reads:
"Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way." Fed.Rule Civ.Proc. 26(c)(7).
19
See Menominee Engineering Corp. v. United States, 20 Fed.Rules Serv.2d 894 (Ct.Cl.1975); Consolidated Box Co., Inc. v. United States, 18 Fed.Rules Serv.2d 115 (Ct.Cl.1973) (involving applications for protective orders under the identically worded Rule 71(f) of the Court of Claims).
20
S. 1666, introduced in the 88th Congress in 1963, included a fifth-numbered exemption for "intra-agency or inter-agency memorandums or letters dealing solely with matters of law or policy." It was reported favorably by the Senate Judiciary Committee, S.Rep. No. 1219, 88th Cong., 2d Sess. (1964), and passed the Senate, but reached the House too late for action. Department of Air Force v. Rose, 425 U.S., at 362-363, 96 S.Ct., at 1600; Renegotiation Board v. Bannercraft Clothing Co., 415 U.S., at 18 n. 18, 94 S.Ct., at 1037 n. 18. Substantially the same measure was reintroduced in the 89th Congress as S. 1160 and H.R. 5012. Freedom of Information Source Book, Subcommittee on Administrative Practice and Procedure, Senate Judiciary Committee, S.Doc. No. 93-82, p. 8 (1974). After additional hearings in the House in March and April 1965, Hearings on H.R. 5012, etc., before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess. (1965), and in the Senate in May 1965, Hearings on S. 1160, etc., before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965), the Senate Judiciary Committee struck the words "dealing solely with matters of law or policy," and inserted in lieu thereof "which would not be available by law to a private party in litigation with the agency." S.Rep. No. 813, supra, n. 15, at 1. The bill, as thus amended, passed the Senate on October 13, 1965. It was reported favorably by the House Committee on Government Operations, H.R.Rep. No. 1497, supra, n. 15, passed the House on June 20, 1966, and was signed by President Johnson on July 4, 1966.
21
Acting General Counsel Smith stated:
"I might interpolate at this point another example or two which I do not have in my statement. Information as to purchases by the Federal Reserve System, for example, of Government securities in the market, if prematurely disclosed could have, we feel, serious effects on the orderly handling of the Government's financing requirements so that in all of these things there is a question of timing. There are many things on which full disclosure is made in reports which are published or filed with the Congress with a timelag, there is no basic secrecy about these matters, and yet the premature release of these could be very damaging to the general interest."
22
Although the Senate Report does not contain a similar reference to information generated in the process of awarding a contract, there is no inconsistency in this respect between the House Report and the Senate Report. Cf. Department of Air Force v. Rose, 425 U.S., at 363-367, 96 S.Ct., at 1600-1602.
23
Our conclusion that the Domestic Policy Directives are at least potentially eligible for protection under Exemption 5 does not conflict with the District Court's finding that the Directives are "statements of general policy . . . formulated and adopted by the agency," which must be "currently publish[ed]" in the Federal Register pursuant to 5 U.S.C. § 552(a)(1). 413 F.Supp., at 504-505. It is true that in NLRB v. Sears, Roebuck & Co., we noted that there is an obvious relationship between Exemption 5 and the affirmative portion of the FOIA which requires the prompt disclosure and indexing of final opinions and statements of policy that have been adopted by the agency. 5 U.S.C. § 552(a)(2). We held that, with respect to final opinions, Exemption 5 can never apply; with respect to other documents covered by 5 U.S.C. § 552(a)(2), we said that we would be "reluctant" to hold that the Exemption 5 privilege would ever apply. 421 U.S., at 153-154, 95 S.Ct., at 1518. These observations, however, were made in the course of a discussion of the privilege for predecisional communications. It should be obvious that the kind of mutually exclusive relationship between final
opinions and statements of policy, on one hand, and predecisional communications, on the other, does not necessarily exist between final statements of policy and other Exemption 5 privileges. In this respect, we note that Sears itself held that a memorandum subject to the affirmative disclosure requirement of § 552(a)(2) was nevertheless shielded from disclosure under Exemption 5 because it contained a privileged attorney's work product. 421 U.S., at 160, 95 S.Ct., at 1521.
24
Actually, orders forbidding any disclosure of trade secrets or confidential commercial information are rare. More commonly, the trial court will enter a protective order restricting disclosure to counsel, see, e. g., Chesa International, Ltd. v. Fashion Associates, Inc., 425 F.Supp. 234 (SDNY 1977); Xerox Corp. v. International Business Machines Corp., 64 F.R.D. 367 (SDNY 1974); Scovill Mfg. Co. v. Sunbeam Corp., 61 F.R.D. 598 (Del.1973); or to the parties, see, e. g., Borden Co. v. Sylk, 289 F.Supp. 847 (ED Pa.1968); United States v. Article of Drug Consisting of 30 Individually Cartoned Jars, More or Less, 43 F.R.D. 181 (Del.1967); United States v. Standard Oil Co. (New Jersey ), 23 F.R.D. 1 (SDNY 1958). We think the Domestic Policy Directives should be considered "privileged," for Exemption 5 purposes, if any type of order would be appropriate forbidding disclosure of the confidential material therein to the general public.
25
In its brief, the Committee argues that the "announcement effect" produced by immediate disclosure of the Directives and tolerance ranges would cause sharper fluctuations in the interest rates on Government securities traded by the System Open Market Account. As a result of these fluctuations, the risk of dealing in or purchasing Government securities would increase. To compensate for this larger risk, dealers and purchasers would demand a higher yield on Government securities. Given the huge amount of borrowing by the Federal Government each year, even a small change in yield on Government securities would represent a substantial cost to the Government. The FOMC estimates that the cost might run as high as $300 million annually. Brief for Petitioner 29.
26
See nn. 5 and 6, supra.
*
Mr. Justice STEWART joins this dissenting opinion insofar as it expresses views concerning the "legal question" presented.
1
As Professor Milton Friedman of the University of Chicago stated:
"May I say also that I have long been in favor of the immediate release of the records of policy actions of the FOMC. I have recommended repeatedly in testimony to Congress that the FOMC meetings be held on a Friday so that the record of policy actions can be written . . . and then released not later than Sunday night so that no business days pass without this record being available." Hearings on H.R. 9465 and 9589 before the Subcommittee on Domestic Monetary Policy of the House Committee on Banking, Finance and Urban Affairs, 95th Cong., 1st Sess., 202 (1977).
These views also reflect those of Sherman Maisel, a former member of the Federal Reserve Board, who has written in this context that "[m]ost experts on markets . . . believe that the better the information, the better the market." S. Maisel, Managing the Dollar 175 (1973).
2
The Court relies on Exemption 5, but I find its analysis unpersuasive. The Court admirably recognizes the danger of allowing every conceivable discovery privilege to be read into Exemption 5. See ante, at 354-355. It proposes, therefore, that only those privileges that are recognized in the legislative history of FOIA should be incorporated in the Exemption. To the extent, however, that every reference in the subcommittee hearings to the danger of disclosing some type of governmental information suffices under this test—virtually every agency appeared before Congress with a list of such "dangers"—the Exemption would render the Act meaningless. On the other hand, if the Court's test is designed to limit Exemption 5 to those references in the legislative history that clearly bear on Congress' final understanding of the Act, I see no justification for the Court's recognition of a vague "commercial information" component of that Exemption.
First, the passage in the House Report that the Court relies on, which refers to "information which [an agency] has received or generated before it completes the process of awarding a contract," H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966), U.S.Code Cong. & Admin.News, at p. 2427, is rather clearly directed both at a different governmental activity (i. e., procurement of goods or services by the Government acting as commercial buyer) and at a different stage in the course of that activity (i. e., "before it completes [its] process") than is involved in this case. Here, the agency is engaged in a clearly governmental activity—the regulation of financial markets—and has already settled upon its final position and has acted upon it. Moreover, the absence in the Senate Report of even this thin reed to support the Court's analysis is significant in light of our recognition that that Report, rather than the House Report, is the most accurate reflection of the congressional will with respect to FOIA. Department of Air Force v. Rose, 425 U.S. 352, 363-367, 96 S.Ct. 1592, 1600-1602, 48 L.Ed.2d 11. Finally, the fact that Congress did include a "commercial information" exemption in the Act, albeit one that clearly does not apply in this case—Exemption 4 should persuasively counsel against our adopting a novel and strained interpretation of another exemption to encompass such information. This is particularly so in this case in view of the fact that the very agency involved here unsuccessfully requested that Congress amend the proposed Exemption 4 to provide protection for the policy directives involved in this case. Hearings on H.R. 5012, etc., before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 51, 55, 228, 229 (1965). Having failed to provide such protection in Exemption 4, which so clearly relates to commercial information, Congress will no doubt be surprised to find that the Court has read that protection into Exemption 5.
3
E. g., Department of Air Force v. Rose, supra, at 361, 96 S.Ct., at 1599; EPA v. Mink, 410 U.S. 73, 79-80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119.
| 45
|
443 U.S. 282
99 S.Ct. 2767
61 L.Ed.2d 541
Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Appellant,v.Norman J. BOLES et al.
No. 78-808.
Argued April 25, 1979.
Decided June 27, 1979.
Syllabus
Held : Section 202(g)(1) of the Social Security Act restricting "mother's insurance benefits" to widows and divorced wives of wage earners does not violate the equal protection component of the Due Process Clause of the Fifth Amendment by thus denying such benefits to the mother of an illegitimate child because she was never married to the wage earner who fathered the child. Pp. 288-297.
(a) Such denial bears a rational relation to the Government's desire to ease the economic dislocation that occurs when the wage earner dies and the surviving parent is left with the choice to stay home and care for the children or to go to work. Congress could reasonably conclude that a woman who never married the wage earner is far less likely than one who did to be dependent upon the wage earner at the time of his death. Pp. 288-293.
(b) The incidental and, to a large degree, speculative impact of § 202(g)(1) on illegitimate children as a class is not sufficient to treat the denial of "mother's insurance benefits" to unwed mothers as discrimination against the children. The focus of these benefits is on the economic dilemma of the surviving spouse or former spouse, whereas the needs, as such, as of the minor children of the deceased wage earner are addressed through the separate "child's insurance benefits" provided by the Act. Pp. 293-296.
464 F.Supp. 408, reversed.
Harriet S. Shapiro, Washington, D. C., for appellant.
Herbert Semmel, Washington, D. C., for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Since the Depression of the 1930's, the Government has taken increasingly upon itself the task of insulating the economy at large and the individual from the buffeting of economic fortune. The federal old-age, survivors, and disability insurance provisions of the Social Security Act (SSA) are possibly the pre-eminent examples: attempts to obviate, through a program of forced savings, the economic dislocations that may otherwise accompany old age, disability, or the death of a breadwinner. As an exercise in governmental administration, the social security system is of unprecedented dimension; in fiscal year 1977 nearly 150 million claims were filed.1
2
Given this magnitude, the number of times these SSA claims have reached this Court warrants little surprise.2 Our cases evidence a sensitivity to the legislative and administrative problems posed in the design of such a program and in the adjudication of claims on this scale. The problems are generally of two types. The first is categorization.3 In light of the specific dislocations Congress wishes to alleviate, it is necessary to define categories of beneficiaries. The process of categorization presents the difficulties inherent in any line-drawing exercise where the draftsman confronts a universe of potential beneficiaries with different histories and distinct needs. He strives for a level of generality that is administratively practicable with full appreciation that the included class has members whose "needs" upon a statutorily defined occurrence may not be as marked as those of isolated individuals outside the classification. "General rules are essential if a fund of this magnitude is to be administered with a modicum of efficiency, even though such rules inevitably produce seemingly arbitrary consequences in some individual cases." Califano v. Jobst, 434 U.S. 47, 53, 98 S.Ct. 95, 99, 54 L.Ed.2d 228 (1977). A process of case-by-case adjudication that would provide a "perfect fit" in theory would increase administrative expenses to a degree that benefit levels would probably be reduced, precluding a perfect fit in fact. Mathews v. Lucas, 427 U.S. 495, 509, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976); Weinberger v. Salfi, 422 U.S. 749, 776-777, 95 S.Ct. 2457, 2472-2473, 45 L.Ed.2d 522 (1975).
3
The second type of problem that has been brought to this Court involves the Social Security Administration's procedures for dispute resolution where benefits have been denied, decreased, or terminated because the Administration has concluded that the claimant is not entitled to what he has requested or to what he has received in the past.4 Again the Court has been sensitive to the special difficulties presented by the mass administration of the social security system. After the legislative task of classification is completed, the administrative goal is accuracy and promptness in the actual allocation of benefits pursuant to those classifications. The magnitude of that task is not amenable to the full trappings of the adversary process lest again benefit levels be threatened by the costs of administration. Mathews v. Eldridge, 424 U.S. 319, 343-349, 96 S.Ct. 893, 906-910, 47 L.Ed.2d 18 (1976); Richardson v. Perales, 402 U.S. 389, 406, 91 S.Ct. 1420, 1430, 28 L.Ed.2d 842 (1971). Fairness can best be assured by Congress and the Social Security Administration through sound managerial techniques and quality control designed to achieve an acceptable rate of error.
4
This case involves a challenge to a categorization. Appellees Norman J. Boles and Margaret Gonzales represent a nationwide class of all illegitimate children and their mothers who are allegedly ineligible for insurance benefits under the SSA because in each case the mother was never married to the wage earner who fathered her child. Section 202(g)(1) of the SSA, as amended, 42 U.S.C. § 402(g)(1), only makes "mother's insurance benefits" available to widows and divorced wives.5 By virtue of this Court's decision inWeinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), "mother's insurance benefits" are available to widowers, leaving the title of these benefits a misnomer. There we held that the provision of such benefits only to women violated the Due Process Clause of the Fifth Amendment.
5
Norman W. Boles died in 1971. He left a widow, Nancy L. Boles, and their two children, who were each promptly awarded child's insurance benefits. Nancy Boles receives mother's insurance benefits. Appellee Gonzales lived with Norman W. Boles for three years before his marriage to Nancy Boles and bore a son by him, Norman J. Boles.6 Gonzales sought mother's insurance benefits for herself and child's benefits for her son. Her son was granted benefits, but her personal request was denied because she had never been married to the wage earner.
6
Gonzales exhausted her administrative remedies and then filed this suit in the United States District Court for the Western District of Texas. The District Court certified a class of "all illegitimate children and their mothers who are presently ineligible for Mother's Insurance Benefits solely because 42 U.S.C. § 402(g)(1) restricts such benefits to women who were once married to the fathers of their children." App. to Juris. Statement 1a-2a. The District Court found that § 202(g)(1) of the SSA was unconstitutional. There were three steps in its logic.
7
First, it read Weinberger v. Wiesenfeld, supra, as holding that mother's insurance benefits are chiefly for the benefit of the child. It quoted from a passage in that opinion where this Court observed:
8
"[Section] 402(g), linked as it is directly to responsibility for minor children, was intended to permit women to elect not to work and to devote themselves to the care of children. . . .
9
"That the purpose behind § 402(g) is to provide children deprived of one parent with the opportunity for the personal attention of the other could not be more clear in the legislative history." 420 U.S., at 648-649, 95 S.Ct., at 1233.
10
On the basis of this language it then concluded that for purposes of equal protection analysis, the pertinent discrimination in this case is not unequal treatment of unwed mothers, but rather discrimination against illegitimate children. In its final step the District Court held that the application of § 202(g)(1) at issue here is unconstitutional, relying on cases of this Court invalidating on constitutional grounds legislation that discriminated against illegitimates solely because of their status at birth. E. g., Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).
11
We noted probable jurisdiction, 439 U.S. 1126, 99 S.Ct. 1042, 59 L.Ed.2d 87 (1979), and now conclude that the District Court incorrectly analyzed the equal protection issue in this case. We accordingly reverse.
12
As this Court noted in Weinberger v. Wiesenfeld, supra, 420 U.S., at 643, 95 S.Ct., at 1231, § 202(g) "was added to the Social Security Act in 1939 as one of large number of amendments designed to 'afford more adequate protection to the family as a unit.' H.R.Rep.No. 728, 76th Cong., 1st Sess., 7 (1939)." The benefits created in 1939 "were intended to provide persons dependent on the wage earner with protection against the economic hardship occasioned by loss of the wage earner's support." Califano v. Jobst, 434 U.S., at 50, 98 S.Ct., at 97-98; see Mathews v. De Castro, 429 U.S. 181, 185-186, 97 S.Ct. 431, 434-435, 50 L.Ed.2d 389 (1976). Specifically, § 202(g) "was intended to permit women [and now men] to elect not to work and to devote themselves to care of children." 420 U.S., at 648, 95 S.Ct., at 1233. The animating concern was the economic dislocation that occurs when the wage earner dies and the surviving parent is left with the choice to stay home and care for the children or to go to work, a hardship often exacerbated by years outside the labor force. "Mother's insurance benefits" were intended to make the choice to stay home easier. But the program was not designed to be, and we think is not now, a general system for the dispensing of child-care subsidies.7 Instead, Congress sought to limit the category of beneficiaries to those who actually suffer economic dislocation upon the death of a wage earner and are likely to be confronted at that juncture with the choice between employment or the assumption of full-time child-care responsibilities.
13
In this light there is an obvious logic in the exclusion from § 202(g) of women or men who have never married the wage earner. "Both tradition and common experience support the conclusion that marriage is an event which normally marks an important change in economic status." Califano v. Jobst, supra, 434 U.S., at 53, 98 S.Ct., at 99. Congress could reasonably conclude that a woman who has never been married to the wage earner is far less likely to be dependent upon the wage earner at the time of his death. He was never legally required to support her and therefore was less likely to have been an important source of income. Thus, the possibility of severe economic dislocation upon his death is more remote.
14
We confronted an analogous classification in Mathews v. De Castro, supra, which involved a challenge to the exclusion of divorced women from "wife's income benefits." In concluding that the classification did not deny equal protection, we observed:
15
"Divorce by its nature works a drastic change in the economic and personal relationship between a husband and wife. . . . Congress could have rationally assumed that divorced husbands and wives depend less on each other for financial and other support than do couples who stay married. The problems that a divorced wife may encounter when her former husband becomes old or disabled may well differ in kind and degree from those that a woman married to a retired or disabled husband must face. . . . She may not feel the pinch of the extra expenses accompanying her former husband's old age or disability. . . . It was not irrational for Congress to recognize this basic fact in deciding to defer monthly payments to divorced wives of retired or disabled wage earners until they reach the age of 62." 429 U.S., at 188-189, 97 S.Ct., at 436.
16
Likewise, Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), upheld a 9-month duration-of-relationship eligibility requirement for the wife and stepchildren of a deceased wage earner. The stated purpose of the requirement was "to prevent the use of sham marriages to secure Social Security payments." Id., at 767, 95 S.Ct., at 2468. We found that the only relevant constitutional argument was whether "the test [appellees could not] meet [was] not so rationally related to a legitimate legislative objective that it [could] be used to deprive them of benefits available to those who [did] satisfy that test." Id., at 772, 95 S.Ct., at 2470. We recognized that the statutory requirement would deny benefits in some cases of legitimate, sincere marriage relationships.
17
"While it is possible to debate the wisdom of excluding legitimate claimants in order to discourage sham relationships, and of relying on a rule which may not exclude some obviously sham arrangements, we think it clear that Congress could rationally choose to adopt such a course. Large numbers of people are eligible for these programs and are potentially subject to inquiry as to the validity of their relationships to wage earners. . . . Not only does the prophylactic approach thus obviate the necessity for large numbers of individualized determinations, but it also protects large numbers of claimants who satisfy the rule from the uncertainties and delays of administrative inquiry into the circumstances of their marriages." Id., at 781-782, 95 S.Ct., at 2475.
18
It is with this background that we must analyze what the District Court in this case perceived to be the flaw in relying on dependence as a rationale for the statutory distinction between married and unmarried persons. The District Court pointed out that in 1972 Congress lifted the requirement that divorced women seeking mother's insurance benefits show that they were in some measure dependent on the wage earner immediately before his death.8 It seized this fact as refutation of any characterization of these benefits as an attempt to ease the dislocation of those who had been dependent on the deceased. We think the District Court is demanding a precision not warranted by our cases.
19
Certainly Congress did not envision such precision. The legislative history surrounding the devolution of support requirements suggests that its effect on mother's insurance benefits was an incidental and relatively minor byproduct of Congress' core concern: older women who were married to wage earners for over 20 years—women who often only knew work as housewives—and who were not eligible for surviving divorced wife's insurance benefits because state divorce laws did not permit alimony or because they had accepted a property settlement in lieu of alimony.9 The Social Security laws have maintained uniform support requirements for divorced wife's, divorced widow's, and surviving divorced mother's benefits. Obviously administration is thereby simplified. Undoubtedly, some younger divorced wives with children of deceased wage earners in their care who could not meet the old support requirements incidentally benefit from Congress' concern that many older women were being victimized once by state divorce laws and again by the Social Security laws.10 However, when Congress seeks to alleviate hardship and inequity under the Social Security laws, it may quite rightly conceive its task to be analogous to painting a fence, rather than touching up an etching. We have repeatedly stated that there is no constitutional requirement that "a statutory provision . . . filte[r] out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute." Weinberger v. Salfi, 422 U.S., at 777, 95 S.Ct., at 2472; Mathews v. De Castro, 429 U.S., at 189, 97 S.Ct., at 436. In sum, we conclude that the denial of mother's insurance benefits to a woman who never married the wage earner bears a rational relation to the Government's desire to ease economic privation brought on by the wage earner's death.
20
But the appellees argue that to characterize the problem in this fashion is to miss the point because at root this case involves discrimination against illegitimate children. Quite naturally, those who seek benefits denied them by statute will frame the constitutional issue in a manner most favorable to their claim. The proper classification for purposes of equal protection analysis is not an exact science, but scouting must begin with the statutory classification itself. Only when it is shown that the legislation has a substantial disparate impact on classes defined in a different fashion may analysis continue on the basis of the impact on those classes.
21
We conclude that the legislation in this case does not have the impact on illegitimates necessary to warrant further inquiry whether § 202(g) is the product of discriminatory purposes. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). "Mother's insurance benefits" are distinct from "child's insurance benefits." The latter are benefits paid to the minor children of the deceased wage earner11 and, as noted, Gonzales' son did receive child's insurance benefits. The benefit to a child as a result of the parent or guardian's receipt of mother's insurance benefits is incidental: mother's insurance benefit payments do not vary with the number of children within the recipient's care, they are not available in the foster care context, and they are lost on remarriage or if the surviving parent earns a substantial income—all despite the needs of the child. Thus, the focus of these benefits is on the economic dilemma of the surviving spouse or former spouse; the child's needs as such are addressed through the separate child's insurance benefits.12 Nor is it invariably true that whatever derivative benefits are enjoyed by the child whose parent or guardian receives mother's insurance benefits will not be enjoyed by illegitimate children. If the illegitimate child is cared for by the deceased wage earner's wife, she will receive mother's insurance benefits even though she has no natural children of her own and never adopted the child.13 And many legitimate children live in households that are not headed by individuals eligible for mother's benefits.
22
In order to make out a disparate impact warranting further scrutiny under the Due Process Clause of the Fifth Amendment, it is necessary to show that the class which is purportedly discriminated against consequently suffers significant deprivation of a benefit or imposition of a substantial burden. If the class of beneficiaries were expanded in the fashion pressed by appellees, the beneficiaries, in terms of those who would exercise dominion over the benefits and whose freedom of choice would be enhanced thereby, would be unwed mothers, not illegitimate children. Certainly every governmental benefit has a ripple effect through familial relationships and the economy generally, its propagation determined by the proximity and sensibilities of others. Possibly the largest class of incidental beneficiaries are those who are gratified in a nonmaterial way to see a friend or relative receive benefits. Some limits must be imposed for purposes of constitutional analysis, and we conclude that in this case the incidental and, to a large decree, speculative impact on illegitimates as a class is not sufficient to treat the denial of mother's insurance benefits to unwed mothers as discrimination against illegitimate children.
23
The SSA and its amendments are the product of hard choices and countervailing pressures. The desire to alleviate hardship wherever it is found is tempered by the concern that the social security system in this country remain a contributory insurance plan and not become a general welfare program. General welfare objectives are addressed through public assistance legislation. In light of the limited resources of the insurance fund, any expansion of the class of beneficiaries invariably poses the prospect of reduced benefits to individual claimants. We need look no further than the facts of this case for an illustration. The benefits available to Norman W. Boles' beneficiaries under the Act are limited by his earnings record. The effect of extending benefits to Gonzales will be to reduce benefits to Nancy Boles and her children by 20%.14 Thus, the end result of extending benefits to Gonzales may be to deprive Nancy Boles of a meaningful choice between full-time employment and staying home with her children, thereby undermining the express legislative purpose of mother's insurance benefits. We think Congress could rationally choose to concentrate limited funds where the need is likely to be greatest.
24
Because of our disposition of the Fifth Amendment issue, we need not and do not reach the appellant's other arguments: that the District Court improperly certified a nationwide class that included individuals who were not shown to have met the jurisdictional requirements of § 205(g) of the SSA, 42 U.S.C. § 405(g),15 and that sovereign immunity barred that court's award of retroactive monetary relief.
25
The judgment of the District Court is accordingly
26
Reversed.
27
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice BLACKMUN join, dissenting.
28
The critical question in this dispute is whether § 202(g) of the Social Security Act, 42 U.S.C. § 402(g), discriminates against unmarried parents or against illegitimate children. The Court determines that the intended beneficiaries of § 202(g) are dependent spouses, and that the statute therefore distinguishes between categories of parents. Having thus characterized the statute, the Court concludes that the use of marital status as an index of dependency on a deceased wage earner is permissible under Califano v. Jobst, 434 U.S. 47, 50, 98 S.Ct. 95, 97, 54 L.Ed.2d 228 (1977), and Mathews v. De Castro, 429 U.S. 181, 185-186, 97 S.Ct. 431, 434-435, 50 L.Ed.2d 389 (1976). If, however, as the District Court found, the statute benefits children, then it incorporates a distinction based on legitimacy which must be tested under the more rigorous standards of Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), and Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).
29
Determining the proper classification for purposes of equal protection analysis is, to be sure, not "an exact science." Ante, at 294. But neither is it an exercise in statutory revision. And only by disregarding the clear legislative history, structure, and effect of the Mother's Insurance Benefits Program can the Court characterize dependent spouses, rather than children, as the intended beneficiaries of § 202(g). Just four Terms ago, a unanimous Court concluded that the clear purpose underlying § 202(g) "is to provide children deprived of one parent with the opportunity for the personal attention of the other." Weinberger v. Wiesenfeld, 420 U.S. 636, 648-649, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975).1 Indeed, the author of today's opinion for the Court concurred separately in Wiesenfeld on the ground that an examination of the legislative history and statutory context of § 202(g) "convincingly demonstrates that the only purpose of [§ 202(g)] is to make it possible for children of deceased contributing workers to have the personal care and attention of a surviving parent." 420 U.S., at 655, 95 S.Ct., at 1236 (REHNQUIST, J., concurring) (emphasis added). That same legislative history and statutory context now persuade the Court that the "animating concern" of § 202(g) is to assist a surviving spouse, and that any benefit to a child is merely "incidental." Ante, at 288-289, 294 . I cannot agree. In my judgment, the history and structure of the Act establish as "convincingly" here as they did in Wiesenfeld that § 202(g) was designed to aid children. And because denial of support for illegitimates bears no substantial relationship to that purpose, I respectfully dissent.
30
* The Court concedes, as it must, that Congress intended the Mother's Insurance Benefits Program to enable surviving spouses to stay at home and care for their children. Ante, at 289. Despite this concession, the Court manages to conclude that the sole beneficiaries of the program, for equal protection purposes, are the spouses who provide care, not the children who receive it. Unencumbered by any direct support from the legislative history, the Court reaches this conclusion by positing that the program was designed to aid surviving parents who "actually suffer economic dislocation upon the death of a wage earner." Ibid. Given this asserted purpose, the Court finds "obvious logic" in § 202(g)'s exclusion of unwed mothers, since "Congress could reasonably conclude that a woman who has never been married to the wage earner is far less likely to be dependent upon the wage earner at the time of his death." Ante, at 289. However, neither the history nor structure of the statute supports the Court's determination that Congress enacted § 202(g) to assist dependent spouses rather than their children.
31
Aid to surviving parents was first extended under the Social Security Act Amendments of 1939 in the form of "widows' benefits." The Advisory Council on Social Security, which formulated the program, indicated that payments were "intended as supplements to the orphans' benefits with the purpose of enabling the widow to remain at home and care for the children." Final Report of the Advisory Council on Social Security 31 (1938). Proposals to grant benefits to dependent widows without minor children were rejected, on the apparent theory that young childless women could work and older widows would have savings or grown children able to assist them. Report of the Social Security Board, H.R.Doc. No. 110, 76th Cong., 1st Sess., 7-8 (1939). See also H.R.Rep. No. 728, 76th Cong., 1st Sess., 36-37 (1939); Hearings on the Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 76th Cong., 1st Sess., 61 (1939). Subsequent re-enactments of the program reflected no change in the underlying statutory objective—to allow surviving parents "to stay home and care for [their] children instead of working." 1971 Advisory Council on Social Security, Reports on the Old-Age, Survivors, and Disability Insurance and Medicare Programs 30 (1971).
32
Moreover, the entire structure of the statute belies the Court's determination that Congress intended mother's insurance to aid a wage earner's economically dependent spouse rather than his children. Section 202(g) imposes no express requirement of dependency. As the District Court noted, mothers and their legitimate children may obtain benefits under § 202(g) "regardless of whether [the wage earner] was living with them or supporting them at the time of his death, or even if he never lived with or supported them." 464 F.Supp. 408, 412 (W.D.Tex.1978). By contrast, an unmarried mother and her child who were fully dependent on the insured nonetheless remain ineligible for assistance under § 202(g). That divorced parents and their children qualify for mother's insurance further undercuts the Court's attempted linkage between the marital requirement and dependency. A woman previously married to a deceased wage earner is eligible for benefits even if neither she nor her child ever received support from the father, and even if the father was excused from any legal support obligations in the divorce proceedings. Indeed, a mother whose second marriage terminates in death or divorce may claim benefits on the account of her first husband although in all likelihood, any entitlement to support terminated upon her remarriage. See 464 F.Supp., at 413.2 In short, nothing in the structure or history of the statute sustains the Court's conclusion that the purpose of § 202(g) is to benefit dependent spouses as opposed to children.
33
Equally untenable is the Court's further determination that § 202(g) has insufficient discriminatory impact on illegitimates to warrant further analysis. See ante, at 294. In concluding that § 202(g) has no such disparate effect, the Court reasons first that
34
"[t]he benefit to a child as a result of the parent or guardian's receipt of mother's insurance benefits is incidental: mother's insurance benefit payments do not vary with the number of children within the recipient's care, they are not available in the foster care context, and they are lost on remarriage or if the surviving parent earns a substantial income . . . ." Ante, at 294.
35
But none of these enumerated eligibility requirements support the Court's characterization of children as "incidental" rather than intended beneficiaries of § 202(g). On the contrary, these restrictions, together with two others the Court neglects to mention, are consistent with the stated purpose of the program—to afford parents who would otherwise be forced to work the option of caring for their children at home. That objective is plainly served by eligibility limitations excluding individuals whose economic resources already permit such a choice. Factors including remarriage, outside income, and qualification for foster care payments directly or indirectly reflect such resources; the number of the recipient's children does not. Similarly, the conditions that mother's benefits cease when a child reaches 18 or leaves the parent's care and custody, see § 202(d)(5), 42 U.S.C. § 402(d)(5), also reinforce the conclusion that children are the actual beneficiaries of § 202(g). For the parent's eligibility continues "only so long as it is realistic to think that the children might need their parent at home." Weinberger v. Wiesenfeld, 420 U.S., at 650 n. 17, 95 S.Ct., at 1234 n. 17.
36
The Court further submits that the discriminatory impact of § 202(g) is not of constitutional dimension because an illegitimate child could conceivably obtain benefits if he leaves the home of his natural mother to live with his deceased father's wife. This suggestion, of course, presupposes both an extraordinary beneficence on the part of the wife, and no strong attachment between the natural mother and her child, assumptions which the Court does not and could not defend.3 And forcing a child to forgo living with his natural mother in order to obtain assistance under § 202(g) hardly comports with the articulated purpose of the program, to encourage parental care.
37
In any event, as this Court's prior holdings amply demonstrate, a statute that disadvantages illegitimates as a class is not saved simply because not all members of that class are penalized under all conceivable circumstances. For example, in both Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), and Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), we rejected an argument that illegitimates suffered no discrimination under statutes extending benefits to legitimate children but only to certain categories of illegitimates.4 Similarly, in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the Court held unconstitutional a statute denying illegitimate children the right to inherit from their intestate fathers even though illegitimates whose fathers wrote wills were not disadvantaged by the provision. So too here, the Court cannot dismiss the discriminatory impact of § 202(g) by a "hypothetical reshuffling of the facts," Trimble v. Gordon, supra, at 774, 97 S.Ct., at 1467, particularly one that disregards the very relationship between a surviving single parent and child which the statute was intended to foster.
38
Finally, the Court suggests that § 202(g) does not disadvantage illegitimates in any constitutionally cognizable sense because it is surviving spouses, not their children, who "exercise dominion over the benefits and whose freedom of choice [is] enhanced thereby." Ante, at 295. However, that the parent makes the decision to stay at home does not render the child any less the beneficiary of that choice. As a practical matter, the parent also exercises "dominion" over the children's insurance benefits afforded by § 202(d) of the Act, 42 U.S.C. § 402(d), but the child is nonetheless the recipient. Children now become "incidental" and "speculative" beneficiaries of § 202(g) only because the Court declares them to be so.
39
I would adhere to the understanding, unanimously expressed in Wiesenfeld, that the Mother's Insurance Program, both in purpose and effect, is a form of assistance to children. Thus, the statute's eligibility restrictions should be evaluated as they in fact operate, as discrimination based on legitimacy.
II
40
Statutes that foreclose opportunities solely because of a child's status at birth represent a particularly invidious form of discrimination. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). To penalize an illegitimate child for conduct he could not prevent and a status he cannot alter is both "illogical and unjust." Weber v. Aetna Casualty & Surety Co., supra, 406 U.S., at 175, 92 S.Ct., at 1406. Accordingly, classifications based on legitimacy violate the equal protection requirements of the Fifth Amendment5 unless they bear a close and substantial relationship to a permissible governmental interest. See Jimenez v. Weinberger, 417 U.S., at 637, 94 S.Ct., at 2502; Mathews v. Lucas, supra, 427 U.S. 495, 509-510, 96 S.Ct. 2755, 2764-2765, 49 L.Ed.2d 651 (1976).
41
In arguing that § 202(g) meets this test, the Secretary suggests that legitimate children as a class are more likely than illegitimates to be dependent on the insured wage earner at the time of his death. Therefore, because the statute establishes a maximum amount payable to any one wage earner's survivors, the Secretary contends that the exclusion of illegitimates is an appropriate means of allocating finite resources to those most likely to have suffered economically from the insured's death. Brief for Appellant 28.
42
The threshold difficulty with this argument is that § 202(g)'s marital restriction bars recovery by illegitimates regardless of whether any other individuals are eligible to claim benefits on a particular wage earner's account. Thus, the restriction defended here as a rationing device withholds assistance to illegitimates even when there are no competing claimants among whom to ration. Insofar as the exclusion of illegitimates is designed to allocate limited funds on the basis of need, it is not carefully tailored to achieve that objective. See Trimble v. Gordon, supra, 430 U.S., at 770-771, 97 S.Ct., at 1465-1466; Gomez v. Perez, supra, 409 U.S., at 538, 93 S.Ct., at 875.6
43
But even if § 202(g)'s marital restriction operated only in contexts of multiple claimants, it could not withstand scrutiny under Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), and Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974). In both those cases, the Court recognized that the marital status of parents is not a sufficiently accurate index of the economic needs of their children to warrant conclusively denying assistance to illegitimates. At issue in Weber was a workmen's compensation scheme which provided that unacknowledged illegitimate children could recover on the account of an insured only if payments to other eligible claimants did not exhaust the maximum allowable benefits. Noting that an unacknowledged illegitimate child "may suffer as much from the loss of a parent as a child born within wedlock," 406 U.S., at 169, 92 S.Ct., at 1403, the Court declined to view status at birth as an adequate proxy for economic dependence. See also Richardson v. Griffin, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972), summarily aff'g 346 F.Supp. 1226 (D.C.Md.); Richardson v. Davis, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972), summarily aff'g 342 F.Supp. 588 (D.C.Conn.). Again in Jimenez v. Weinberger, we struck down a statute granting social security benefits to a disabled worker's legitimate children born after the onset of disability but not to afterborn illegitimate children except under certain limited circumstances. See n. 4, supra. The constitutional infirmities identified in Jimenez are equally evident in this case; that statute, like § 202(g), was overinclusive to the extent it aided legitimate children not actually dependent on the insured wage earner, and underinclusive to the extent it withheld assistance from illegitimate children who were in fact dependent. And here, as inJimenez, it serves no purpose consistent with the aims of the Social Security Act to deny illegitimates all opportunity to establish their dependence and their concomitant right to insurance benefits. See 417 U.S., at 636, 94 S.Ct., at 2501.7
44
We cannot, of course, expect perfect congruence between legislative ends and means in the administration of a complex statutory scheme. See ante, at 284-285. But neither should we give our imprimatur to distinctions needlessly predicated on a disfavored social status, particularly one beyond an individual's power to affect. Although a "blanket and conclusive exclusion" of illegitimate children may be an administratively expedient means of screening for dependence under § 202(g), see Jimenez v. Weinberger, supra, at 636, 94 S.Ct., at 2501, it is also inaccurate, unjust, and, under this Court's settled precedents, unconstitutional.
45
I respectfully dissent.
1
Social Security Administration's Office of Management and Administration, The Year in Review: The Administration of Social Security Programs 1977, p. ii (July 1978).
2
Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979); Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977); Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977); Mathews v. De Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976); Norton v. Mathews, 427 U.S. 524, 96 S.Ct. 2771, 49 L.Ed.2d 672 (1976); Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); Richardson v. Wright, 405 U.S. 208, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Many other cases have been disposed of by summary action. This Court has also had numerous cases involving claims arising under federal-state cooperative welfare programs authorized by the SSA. See, e. g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (Assistance to Persons Permanently and Totally Disabled); California Human Resources Dept. v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971) (unemployment insurance); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (Aid to Families With Dependent Children).
3
The bulk of our cases fall under this heading. Califano v. Jobst, supra (termination of dependent child's benefits upon his marriage); Califano v. Webster, supra (gender-based differences in benefit computation); Califano v. Goldfarb, supra (gender-based differences in defining dependent of deceased wage earner); Mathews v. De Castro, supra (denial of "wife's insurance benefits" to divorced women under 62 years of age); Norton v. Mathews, supra (illegitimate children denied presumption of dependency enjoyed by legitimates); Mathews v. Lucas, supra (same as Norton ); Weinberger v. Salfi, supra (duration-of-relationship requirements for receipt of mother's or child's insurance benefits); Weinberger v. Wiesenfeld, supra (gender-based denial of survivor's benefits to widowers); Jimenez v. Weinberger, supra (denial of disability insurance benefits to illegitimate children born after onset of wage earner's disability); Richardson v. Belcher, supra (reduction in social security benefits to reflect state workmen's compensation benefits); Flemming v. Nestor, supra (termination of insurance benefits to aliens upon their deportation).
4
Califano v. Yamasaki, supra (lack of prerecoupment oral hearing in overpayment cases); Mathews v. Eldridge, supra (question whether evidentiary hearing necessary before termination of disability insurance benefits); Richardson v. Wright, supra (challenge to procedures employed in suspension or termination of disability benefits); Richardson v. Perales, supra (written reports by physicians who have examined disability insurance claimants are "substantial evidence" supporting denial of benefits).
5
Section 202(g)(1), as set forth in 42 U.S.C. § 402(g)(1), provides:
"(g)(1) The widow and every surviving divorced mother (as defined in section 416(d) of this title) of an individual who died a fully or currently insured individual, if such widow or surviving divorced mother—
"(A) is not married,
"(B) is not entitled to a widow's insurance benefit,
"(C) is not entitled to old-age insurance benefits, or is entitled to old-age insurance benefits each of which is less than three-fourths of the primary insurance amount of such individual,
"(D) has filed application for mother's insurance benefits, or was entitled to wife's insurance benefits on the basis of the wages and self-employment income of such individual for the month preceding the month in which he died,
"(E) at the time of filing such application has in her care a child or such individual entitled to a child's insurance benefit, and
"(F) in the case of a surviving divorced mother—
"(i) the child referred to in subparagraph (E) is her son, daughter, or legally adopted child, and
"(ii) the benefits referred to in such subparagraph are payable on the basis of such individual's wages and self-employment income,
"shall (subject to subsection (s) of this section) be entitled to a mother's insurance benefit for each month, beginning with the first month after August 1950 in which she becomes so entitled to such insurance benefits and ending with the month preceding the first month in which any of the following occurs: no child of such deceased individual is entitled to a child's insurance benefit, such widow or surviving divorced mother becomes entitled to an old-age insurance benefit equal to or exceeding three-fourths of the primary insurance amount of such deceased individual, she becomes entitled to a widow's insurance benefit, she remarries, or she dies. Entitlement to such benefits shall also end, in the case of a surviving divorced mother, with the month immediately preceding the first month in which no son, daughter, or legally adopted child of such surviving divorced mother is entitled to a child's insurance benefit on the basis of the wages and self-employment income of such deceased individual."
Section 216(d)(3), 42 U.S.C. § 416(d)(3), states:
"(3) The term 'surviving divorced mother' means a woman divorced from an individual who has died, but only if (A) she is the mother of his son or daughter, (B) she legally adopted his son or daughter while she was married to him and while such son or daughter was under the age of 18, (C) he legally adopted her son or daughter while she was married to him and while such son or daughter was under the age of 18, or (D) she was married to him at the time both of them legally adopted a child under the age of 18."
6
Norman W. Boles had acknowledged his paternity of Norman J. Boles.
7
Califano v. Jobst, 434 U.S., at 52, 98 S.Ct., at 98:
"The statute is designed to provide the wage earner and the dependent members of his family with protection against the hardship occasioned by his loss of earnings; it is not simply a welfare program generally benefiting needy persons."
See also Mathews v. De Castro, 429 U.S., at 185-186, 97 S.Ct., at 434-435.
8
Originally, nothing similar to mother's insurance benefits for divorced women was provided by the SSA. Then in 1950 these benefits, subject to limitations not relevant here, were made available to a surviving divorced wife, if she had not remarried, had a child in her care entitled to child's insurance benefits, and at the time of the wage earner's death had been receiving at least one-half of her support from him. Act of Aug. 28, 1950, § 101(a), 64 Stat. 485.
In 1965, the remarriage bar to mother's insurance benefits was relaxed. A woman's rights as a surviving divorced mother would be restored if her second marriage ended in divorce. Moreover, a showing that she was receiving or entitled to receive "substantial contributions" from the wage earner at the time of his death would suffice in lieu of a showing that she received at least one-half of her support from the wage earner. Old-Age, Survivors, and Disability Amendments of 1965, § 308, 79 Stat. 377-379.
Finally, in 1972 Congress made the changes discussed by the District Court. Social Security Amendments of 1972, § 114(c), 86 Stat. 1348.
9
Interestingly, younger women receiving mother's benefits are not even mentioned in the Committee Reports on the 1972 amendment.
"Benefits, under present law, are payable to a divorced wife age 62 or older and a divorced widow age 60 or older if her marriage lasted at least 20 years before the divorce, and to a surviving divorced mother. In order to qualify for any of these benefits a divorced woman is required to show that: (1) she was receiving at least one-half of her support from her former husband; (2) she was receiving substantial contributions from her former husband pursuant to a written agreement; or (3) there was a court order in effect providing for substantial contributions to her support by her former husband.
"In some States the courts are prohibited from providing for alimony, and in these States a divorced woman is precluded from meeting the third support requirement. Even in States which allow alimony, the court may have decided at the time of the divorce that the wife was not in need of financial support. Moreover, a divorced woman's eligibility for social security benefits may depend on the advice she received at the time of her divorce. If a woman accepted a property settlement in lieu of alimony, she could, in effect, have disqualified herself for divorced wife's, divorced widow's, or surviving divorced mother's benefits.
"The intent of providing benefits to divorced women is to protect women whose marriages are dissolved when they are far along in years—particularly housewives who have not been able to work and earn social security protection of their own. The committee believes that the support requirements of the law have operated to deprive some divorced women of the protection they should have received and, therefore, recommends that these requirements be eliminated. The requirement that the marriage of a divorced wife or widow must have lasted for at least 20 years before the divorce would not be changed."
S.Rep. No. 92-1230, p. 142 (1972). See H.R.Rep. No. 92-231, pp. 54-55 (1971), U.S.Code Cong. & Admin.News 1972, p. 4989. When the 1965 Changes were made there was only passing mention of younger women receiving mother's insurance benefits. S.Rep. No. 404, 89th Cong., 1st Sess., 108 (1965).
10
There are no precise figures as to the extra cost to the insurance fund posed by this expansion of mother's insurance benefits. It can be inferred from the attention this expansion received in the legislative history that its cost was a relatively small part of the $23 million annual increase in benefits estimated for eliminating support requirements across the board. See S.Rep. No. 92-1230, supra, at 142. The Department of Health, Education, and Welfare has estimated that compliance with the District Court's decision in this case will cost $60 million annually.
11
In Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), this Court struck down an absolute bar to child's insurance benefits for illegitimate children whose paternity had never been acknowledged or affirmed by evidence of domicile with, or support by, the wage earner before the onset of the disability.
12
There is obviously a significant difference between this interpretation of the statutory purpose and that subscribed to by the author of this opinion in his separate concurrence in Weinberger v. Wiesenfeld, 420 U.S., at 655, 95 S.Ct., at 1236. To the extent that these interpretations conflict, the author feels he can do no better than quote Mr. Justice Jackson, concurring in McGrath v. Kristensen, 340 U.S. 162, 177-178, 71 S.Ct. 224, 233, 95 L.Ed. 173 (1950):
"Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' Andrews v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court . . . .' United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. . . . If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all."
13
Compare 42 U.S.C. § 402(g)(1)(E) with § 402(g)(1)(F)(i).
14
Brief for Appellant 29 n. 22.
15
See Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979).
1
In Wiesenfeld, the Court held that § 202(g)'s denial of benefits to widowers reflected impermissible gender-based discrimination. In so ruling, we reasoned that classifications based on the sex of the surviving parent bore no relationship to the statutory objective of enabling children who had lost one parent to receive full-time care by the other. See 420 U.S., at 651, 95 S.Ct., at 1234.
2
The Court dismisses this awkward fact with an equally awkward metaphor. In the Court's view, Congress' inclusion of divorced parents represents an attempt to "alleviate hardship and inequity under the Social Security laws." Ante, at 293. And, under the Court's analysis, when Congress undertakes such an endeavor, "it may quite rightly conceive its task to be analogous to painting a fence, rather than touching up an etching." Ibid. But this characterization of legislative technique elides the issue relevant here, the purpose of the statutory scheme. Metaphor cannot mask the significance of Congress' decision to confer benefits on divorced spouses. That these individuals may obtain mother's insurance of itself negates the proposition that the painter-draftsman was concerned with assisting dependent parents rather than their children.
3
Although statistics in this area are difficult to obtain, available data reveal that a very high percentage of illegitimate children reside with their natural mothers. Approximately one-half of all illegitimate births are to women under age 20, see Department of Health, Education, and Welfare, Monthly Vital Statistics Report, Final Natality Statistics, 1977, p. 19 (Feb. 1979), and studies indicate that between 86% and 93% of these mothers are living with their children. See Report by the Alan Guttmacher Institute, Research and Development Division of the Planned Parenthood Federation of America, 11 Million Teenagers 11 (1976) (hereinafter cited as Planned Parenthood Report); F. Furstenberg, Unplanned Parenthood 174 (1976) (hereinafter cited as Furstenberg); Zelnik & Kanter, the Resolution of Teenage First Pregnancies, 6 Family Planning Perspectives 77 (1974) (Table 5). Comparable figures have been reported for mothers over age 20. See Wisconsin Department of Health and Social Services, Unmarried Mothers in Wisconsin, 1974 (1975) (Tables 11, 13). The remaining children are residing with either adoptive parents or other individuals. See Planned Parenthood Report 11; Furstenberg 174. One in-depth study found that the latter separations were generally attributable to the mother's illness or inability to obtain child care during hours of employment. Ibid.
4
Under the workmen's compensation statute at issue in Weber, illegitimate children could recover benefits on the same basis as legitimates only if acknowledged by their fathers. See 406 U.S. 164, 167-168, 92 S.Ct. 1400, 1402-1403, 31 L.Ed.2d 768 (1972). Jimenez involved a statute granting disability insurance benefits to illegitimates where: (1) state law permitted them to inherit from the wage earner; (2) their illegitimacy resulted from formal or nonobvious defects in their parents' marriage ceremony; (3) they had subsequently been legitimated; or (4) the disabled wage-earning parent had contributed to their support or had lived with them prior to disability. See 417 U.S., at 631, and n. 2, 94 S.Ct., at 2499, and n. 2.
5
See Vance v. Bradley, 440 U.S. 93, 94-95, n. 1, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
6
That Congress has established a maximum which cannot fully provide for all survivors affords no basis for preferring legitimate children over dependent illegitimates. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175-176, 92 S.Ct. 1400, 1406-1407, 31 L.Ed.2d 768 (1972); Richardson v. Griffin, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972), summarily aff'g 346 F.Supp. 1226 (D.C.Md.); Richardson v. Davis, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972), summarily aff'g 342 F.Supp. 588 (D.C.Conn.).
7
Unlike the statute upheld in Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), which presumed the dependence of legitimate children but required proof of dependence by illegitimates, § 202(g) conclusively bars recovery even to those illegitimates who could establish that they were supported by the deceased wage earner at the time of his death.
| 12
|
443 U.S. 193
99 S.Ct. 2721
61 L.Ed.2d 480
UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner,v.Brian F. WEBER et al. KAISER ALUMINUM & CHEMICAL CORPORATION, Petitioner, v. Brian F. WEBER et al. UNITED STATES et al., Petitioners, v. Brian F. WEBER et al.
Nos. 78-432, 78-435 and 78-436.
Argued March 28, 1979.
Decided June 27, 1979.
Syllabus
In 1974, petitioners United Steelworkers of America (USWA) and Kaiser Aluminum & Chemical Corp. (Kaiser) entered into a master collective-bargaining agreement covering terms and conditions of employment at 15 Kaiser plants. The agreement included an affirmative action plan designed to eliminate conspicuous racial imbalances in Kaiser's then almost exclusively white craftwork forces by reserving for black employees 50% of the openings in in-plant craft-training programs until the percentage of black craftworkers in a plant is commensurate with the percentage of blacks in the local labor force. This litigation arose from the operation of the affirmative action plan at one of Kaiser's plants where, prior to 1974, only 1.83% of the skilled craftworkers were black, even though the local work force was approximately 39% black. Pursuant to the national agreement, Kaiser, rather than continuing its practice of hiring trained outsiders, established a training program to train its production workers to fill craft openings, selecting trainees on the basis of seniority, with the proviso that at least 50% of the trainees were to be black until the percentage of black skilled craftworkers in the plant approximated the percentage of blacks in the local labor force. During the plan's first year of operation, seven black and six white craft trainees were selected from the plant's production work force, with the most senior black trainee having less seniority than several white production workers whose bids for admission were rejected. Thereafter, respondent Weber, one of those white production workers, instituted this class action in Federal District Court, alleging that because the affirmative action program had resulted in junior black employees' receiving training in preference to senior white employees, respondent and other similarly situated white employees had been discriminated against in violation of the provisions of § 703(a) and (d) of Title VII of the Civil Rights Act of 1964 that make it unlawful to "discriminate . . . because of . . . race" in hiring and in the selection of apprentices for training programs. The District Court held that the affirmative action plan violated Title VII, entered judgment in favor of the plaintiff class, and granted injunctive relief. The Court of Appeals affirmed, holding that all employment preferences based upon race, including those preferences incidental to bona fide affirmative action plans, violated Title VII's prohibition against racial discrimination in employment.
Held:
1. Title VII's prohibition in § 703(a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans. Pp. 200-208.
(a) Respondent Weber's reliance upon a literal construction of the statutory provisions and upon McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493, which held, in a case not involving affirmative action, that Title VII protects whites as well as blacks from certain forms of racial discrimination, is misplaced, since the Kaiser-USWA plan is an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation. "[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers," Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226, and thus, the prohibition against racial discrimination in §§ 703(a) and (d) must be read against the background of the legislative history of Title VII and the historical context from which the Act arose. P. 201.
(b) Examination of those sources makes clear that an interpretation of §§ 703(a) and (d) that forbids all race-conscious affirmative action would bring about an end completely at variance with the purpose of the statute and must be rejected. Congress' primary concern in enacting the prohibition against racial discrimination in Title VII was with the plight of the Negro in our economy, and the prohibition against racial discrimination in employment was primarily addressed to the problem of opening opportunities for Negroes in occupations which have been traditionally closed to them. In view of the legislative history, the very statutory words intended as a spur or catalyst to cause "employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history," Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 245, cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges. Pp. 201-204.
(c) This conclusion is further reinforced by examination of the language and legislative history of § 703(j) of Title VII, which provides that nothing contained in Title VII "shall be interpreted to require any employer . . . to grant preferential treatment . . . to any group because of the race . . . of such . . . group on account of" a de facto racial imbalance in the employer's work force. Had Congress meant to prohibit all race-conscious affirmative action, it could have provided that Title VII would not require or permit racially preferential integration efforts. The legislative record shows that § 703(j) was designed to prevent § 703 from being interpreted in such a way as to lead to undue federal regulation of private businesses, and thus use of the word "require" rather than the phrase "require or permit" in § 703(j) fortifies the conclusion that Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious affirmative action. Pp. 204-207.
2. It is not necessary in these cases to define the line of demarcation between permissible and impermissible affirmative action plans; it suffices to hold that the challenged Kaiser-USWA plan falls on the permissible side of the line. The purposes of the plan mirror those of the statute, being designed to break down old patterns of racial segregation and hierarchy, and being structured to open employment opportunities for Negroes in occupations which have been traditionally closed to them. At the same time, the plan does not unnecessarily trammel the interests of white employees, neither requiring the discharge of white workers and their replacement with new black hirees, nor creating an absolute bar to the advancement of white employees since half of those trained in the program will be white. Moreover, the plan is a temporary measure, not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Pp. 208-209.
5 Cir., 563 F.2d 216, reversed.
Noyes Thompson Powers, Washington, D. C., for petitioner in No. 78-435.
Michael H. Gottesman, Washington, D. C., for petitioner in No. 78-432.
Lawrence G. Wallace, Washington, D. C., for petitioners in No. 78-436.
Michael R. Fontham, New Orleans, La., for respondents in each case.
[Amicus Curiae Information from Pages 196-197 intentionally omitted]
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Challenged here is the legality of an affirmative action plan collectively bargained by an employer and a union—that reserves for black employees 50% of the openings in an in-plant craft-training program until the percentage of black craft-workers in the plant is commensurate with the percentage of blacks in the local labor force. The question for decision is whether Congress, in Title VII of the Civil Rights Act of 1964, 78 Stat., 253, as amended, 42 U.S.C. § 2000e et seq.,, left employers and unions in the private sector free to take such race-conscious steps to eliminate manifest racial imbalances in traditionally segregated job categories. We hold that Title VII does not prohibit such race-conscious affirmative action plans.
2
* In 1974, petitioner United Steelworkers of America (USWA) and petitioner Kaiser Aluminum & Chemical Corp. (Kaiser) entered into a master collective-bargaining agreement covering terms and conditions of employment at 15 Kaiser plants. The agreement contained, inter alia, an affirmative action plan designed to eliminate conspicuous racial imbalances in Kaiser's then almost exclusively white craft-work forces. Black craft-hiring goals were set for each Kaiser plant equal to the percentage of blacks in the respective local labor forces. To enable plants to meet these goals, on-the-job training programs were established to teach unskilled production workers—black and white—the skills necessary to become craftworkers. The plan reserved for black employees 50% of the openings in these newly created in-plant training programs.
3
This case arose from the operation of the plan at Kaiser's plant in Gramercy, La. Until 1974, Kaiser hired as craftworkers for that plant only persons who had had prior craft experience. Because blacks had long been excluded from craft unions,1 few were able to present such credentials. As a consequence, prior to 1974 only 1.83% (5 out of 273) of the skilled craftworkers at the Gramercy plant were black, even though the work force in the Gramercy area was approximately 39% black.
4
Pursuant to the national agreement Kaiser altered its craft-hiring practice in the Gramercy plant. Rather than hiring already trained outsiders, Kaiser established a training program to train its production workers to fill craft openings. Selection of craft trainees was made on the basis of seniority, with the proviso that at least 50% of the new trainees were to be black until the percentage of black skilled craftworkers in the Gramercy plant approximated the percentage of blacks in the local labor force. See 415 F.Supp. 761, 764.
5
During 1974, the first year of the operation of the Kaiser-USWA affirmative action plan, 13 craft trainees were selected from Gramercy's production work force. Of these, seven were black and six white. The most senior black selected into the program had less seniority than several white production workers whose bids for admission were rejected. Thereafter one of those white production workers, respondent Brian Weber (hereafter respondent), instituted this class action in the United States District Court for the Eastern District of Louisiana.
6
The complaint alleged that the filling of craft trainee positions at the Gramercy plant pursuant to the affirmative action program had resulted in junior black employees' receiving training in preference to senior white employees, thus discriminating against respondent and other similarly situated white employees in violation of §§ 703(a)2 and (d)3 of Title VII. The District Court held that the plan violated Title VII, entered a judgment in favor of the plaintiff class, and granted a permanent injunction prohibiting Kaiser and the USWA "from denying plaintiffs, Brian F. Weber and all other members of the class, access to on-the-job training programs on the basis of race." App. 171. A divided panel of the Court of Appeals for the Fifth Circuit affirmed, holding that all employment preferences based upon race, including those preferences incidental to bona fide affirmative action plans, violated Title VII's prohibition against racial discrimination in employment. 563 F.2d 216 (1977). We granted certiorari. 439 U.S. 1045, 99 S.Ct. 720, 58 L.Ed.2d 704 (1978). We reverse.
II
7
We emphasize at the outset the narrowness of our inquiry. Since the Kaiser-USWA plan does not involve state action, this case does not present an alleged violation of the Equal Protection Clause of the Fourteenth Amendment. Further, since the Kaiser-USWA plan was adopted voluntarily, we are not concerned with what Title VII requires or with what a court might order to remedy a past proved violation of the Act. The only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the Kaiser-USWA plan. That question was expressly left open in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 281 n. 8, 96 S.Ct. 2574, 2579, 49 L.Ed.2d 493 (1976), which held, in a case not involving affirmative action, that Title VII protects whites as well as blacks from certain forms of racial discrimination.
8
Respondent argues that Congress intended in Title VII to prohibit all race-conscious affirmative action plans. Respondent's argument rests upon a literal interpretation of §§ 703(a) and (d) of the Act. Those sections make it unlawful to "discriminate . . . because of . . . race" in hiring and in the selection of apprentices for training programs. Since, the argument runs, McDonald v. Sante Fe Trail Transp. Co., supra, settled that Title VII forbids discrimination against whites as well as blacks, and since the Kaiser-USWA affirmative action plan operates to discriminate against white employees solely because they are white, it follows that the Kaiser-USWA plan violates Title VII.
9
Respondent's argument is not without force. But it overlooks the significance of the fact that the Kaiser-USWA plan is an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation. In this context respondent's reliance upon a literal construction of §§ 703(a) and (d) and upon McDonald is misplaced. See McDonald v. Sante Fe Trail Transp. Co., supra, at 281 n. 8, 96 S.Ct., at 2579. It is a "familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers." Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892). The prohibition against racial discrimination in §§ 703(a) and (d) of Title VII must therefore be read against the background of the legislative history of Title VII and the historical context from which the Act arose. See Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976); National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 620, 87 S.Ct. 1250, 1255, 18 L.Ed.2d 357 (1967); United States v. American Trucking Assns., 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1063-1064, 84 L.Ed. 1345 (1940). Examination of those sources makes clear that an interpretation of the sections that forbade all race-conscious affirmative action would "bring about an end completely at variance with the purpose of the statute" and must be rejected. United States v. Public Utilities Comm'n, 345 U.S. 295, 315, 73 S.Ct. 706, 718, 97 L.Ed. 1020 (1953). See Johansen v. United States, 343 U.S. 427, 431, 72 S.Ct. 849, 852, 96 L.Ed. 1051 (1952); Longshoremen v. Juneau Spruce Corp., 342 U.S. 237, 243, 72 S.Ct. 235, 239, 96 L.Ed. 275 (1952); Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907).
10
Congress' primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with "the plight of the Negro in our economy." 110 Cong.Rec. 6548 (1964) (remarks of Sen. Humphrey). Before 1964, blacks were largely relegated to "unskilled and semi-skilled jobs." Ibid. (remarks of Sen. Humphrey); id., at 7204 (remarks of Sen. Clark); id., at 7379-7380 (remarks of Sen. Kennedy). Because of automation the number of such jobs was rapidly decreasing. See id., at 6548 (remarks of Sen. Humphrey); id., at 7204 (remarks of Sen. Clark). As a consequence, "the relative position of the Negro worker [was] steadily worsening. In 1947 the nonwhite unemployment rate was only 64 percent higher than the white rate; in 1962 it was 124 percent higher." Id., at 6547 (remarks of Sen. Humphrey). See also id., at 7204 (remarks of Sen. Clark). Congress considered this a serious social problem. As Senator Clark told the Senate:
11
"The rate of Negro unemployment has gone up consistently as compared with white unemployment for the past 15 years. This is a social malaise and a social situation which we should not tolerate. That is one of the principal reasons why the bill should pass." Id., at 7220.
12
Congress feared that the goals of the Civil Rights Act—the integration of blacks into the mainstream of American society could not be achieved unless this trend were reversed. And Congress recognized that that would not be possible unless blacks were able to secure jobs "which have a future." Id., at 7204 (remarks of Sen. Clark). See also id., at 7379-7380 (remarks of Sen. Kennedy). As Senator Humphrey explained to the Senate:
13
"What good does it do a Negro to be able to eat in a fine restaurant if he cannot afford to pay the bill? What good does it do him to be accepted in a hotel that is too expensive for his modest income? How can a Negro child be motivated to take full advantage of integrated educational facilities if he has no hope of getting a job where he can use that education?" Id., at 6547.
14
"Without a job, one cannot afford public convenience and accommodations. Income from employment may be necessary to further a man's education, or that of his children. If his children have no hope of getting a good job, what will motivate them to take advantage of educational opportunities?" Id., at 6552.
15
These remarks echoed President Kennedy's original message to Congress upon the introduction of the Civil Rights Act in 1963.
16
"There is little value in a Negro's obtaining the right to be admitted to hotels and restaurants if he has no cash in his pocket and no job." 109 Cong.Rec. at 11159.
17
Accordingly, it was clear to Congress that "[t]he crux of the problem [was] to open employment opportunities for Negroes in occupations which have been traditionally closed to them," 10 Cong.Rec. 6548 (1964) (remarks of Sen. Humphrey), and it was to this problem that Title VII's prohibition against racial discrimination in employment was primarily addressed.
18
It plainly appears from the House Report accompanying the Civil Rights Act that Congress did not intend wholly to prohibit private and voluntary affirmative action efforts as one method of solving this problem. The Report provides:
19
"No bill can or should lay claim to eliminating all of the causes and consequences of racial and other types of discrimination against minorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination." H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963); U.S.Code Cong. & Admin.News 1964, pp. 2355, 2393. (Emphasis supplied.)
20
Given this legislative history, we cannot agree with respondent that Congress intended to prohibit the private sector from taking effective steps to accomplish the goal that Congress designed Title VII to achieve. The very statutory words intended as a spur or catalyst to cause "employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history," Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975), cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges.4 It would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had "been excluded from the American dream for so long," 110 Cong.Rec. 6552 (1964) (remarks of Sen. Humphrey), constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.
21
Our conclusion is further reinforced by examination of the language and legislative history of § 703(j) of Title VII.5 Opponents of Title VII raised two related arguments against the bill. First, they argued that the Act would be interpreted to require employers with racially imbalanced work forces to grant preferential treatment to racial minorities in order to integrate. Second, they argued that employers with racially imbalanced work forces would grant preferential treatment to racial minorities, even if not required to do so by the Act. See 110 Cong.Rec. 8618-8619 (1964) (remarks of Sen. Sparkman). Had Congress meant to prohibit all race-conscious affirmative action, as respondent urges, it easily could have answered both objections by providing that Title VII would not require or permit racially preferential integration efforts. But Congress did not choose such a course. Rather, Congress added § 703(j) which addresses only the first objection. The section provides that nothing contained in Title VII "shall be interpreted to require any employer . . . to grant preferential treatment . . . to any group because of the race . . . of such . . . group on account of" a de facto racial imbalance in the employer's work force. The section does not state that "nothing in Title VII shall be interpreted to permit " voluntary affirmative efforts to correct racial imbalances. The natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action.
22
The reasons for this choice are evident from the legislative record. Title VII could not have been enacted into law without substantial support from legislators in both Houses who traditionally resisted federal regulation of private business. Those legislators demanded as a price for their support that "management prerogatives, and union freedoms . . . be left undisturbed to the greatest extent possible." H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963), U.S.Code Cong. & Admin.News 1964, p. 2391. Section 703(j) was proposed by Senator Dirksen to allay any fears that the Act might be interpreted in such a way as to upset this compromise. The section was designed to prevent § 703 of Title VII from being interpreted in such a way as to lead to undue "Federal Government interference with private businesses because of some Federal employee's ideas about racial balance or racial imbalance." 110 Cong.Rec. 14314 (1964) (remarks of Sen. Miller).6 See also id., at 9881 (remarks of Sen. Allott); id., at 10520 (remarks of Sen. Carlson); id., at 11471 (remarks of Sen. Javits); id., at 12817 (remarks of Sen. Dirksen). Clearly, a prohibition against all voluntary, race-conscious, affirmative action efforts would disserve these ends. Such a prohibition would augment the powers of the Federal Government and diminish traditional management prerogatives while at the same time impeding attainment of the ultimate statutory goals. In view of this legislative history and in view of Congress' desire to avoid undue federal regulation of private businesses, use of the word "require" rather than the phrase "require or permit" in § 703(j) fortifies the conclusion that Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious affirmative action.7
23
We therefore hold that Title VII's prohibition in §§ 703(a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans.
III
24
We need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans. It suffices to hold that the challenged Kaiser-USWA affirmative action plan falls on the permissible side of the line. The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both were structured to "open employment opportunities for Negroes in occupations which have been traditionally closed to them." 110 Cong.Rec. 6548 (1964) (remarks of Sen. Humphrey).8
25
At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require the discharge of white workers and their replacement with new black hirees. Cf. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Preferential selection of craft trainees at the Gramercy plant will end as soon as the percentage of black skilled craftworkers in the Gramercy plant approximates the percentage of blacks in the local labor force. See 415 F.Supp., at 763.
26
We conclude, therefore, that the adoption of the Kaiser-USWA plan for the Gramercy plant falls within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories.9 Accordingly, the judgment of the Court of Appeals for the Fifth Circuit is
27
Reversed.
28
Mr. Justice POWELL and Mr. Justice STEVENS took no part in the consideration or decision of these cases.
29
Mr. Justice BLACKMUN, concurring.
30
While I share some of the misgivings expressed in Mr. Justice REHNQUIST's dissent, post, p. 219, concerning the extent to which the legislative history of Title VII clearly supports the result the Court reaches today, I believe that additional considerations, practical and equitable, only partially perceived, if perceived at all, by the 88th Congress, support the conclusion reached by the Court today, and I therefore join its opinion as well as its judgment.
31
* In his dissent from the decision of the United States Court of Appeals for the Fifth Circuit, Judge Wisdom pointed out that this litigation arises from a practical problem in the administration of Title VII. The broad prohibition against discrimination places the employer and the union on what he accurately described as a "high tightrope without a net beneath them." 563 F.2d 216, 230. If Title VII is read literally, on the one hand they face liability for past discrimination against blacks, and on the other they face liability to whites for any voluntary preferences adopted to mitigate the effects of prior discrimination against blacks.
32
In this litigation, Kaiser denies prior discrimination but concedes that its past hiring practices may be subject to question. Although the labor force in the Gramercy area was proximately 39% black, Kaiser's work force was less than 15% black, and its craftwork force was less than 2% black. Kaiser had made some effort to recruit black painters, carpenters, insulators, and other craftsmen, but it continued to insist that those hired have five years' prior industrial experience, a requirement that arguably was not sufficiently job related to justify under Title VII any discriminatory impact it may have had. See Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1389 (CA5 1978), cert. denied, sub nom. Steelworkers v. Parson, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979). The parties dispute the extent to which black craftsmen were available in the local labor market. They agree, however, that after critical reviews from the Office of Federal Contract Compliance, Kaiser and the Steelworkers established the training program in question here and modeled it along the lines of a Title VII consent decree later entered for the steel industry. See United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (CA5 1975). Yet when they did this, respondent Weber sued, alleging that Title VII prohibited the program because it discriminated against him as a white person and it was not supported by a prior judicial finding of discrimination against blacks.
33
Respondent Weber's reading of Title VII endorsed by the Court of Appeals, places voluntary compliance with Title VII in profound jeopardy. The only way for the employer and the union to keep their footing on the "tightrope" it creates would be to eschew all forms of voluntary affirmative action. Even a whisper of emphasis on minority recruiting would be forbidden. Because Congress intended to encourage private efforts to come into compliance with Title VII, see Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974), Judge Wisdom concluded that employers and unions who had committed "arguable violations" of Title VII should be free to make reasonable responses without fear of liability to whites. 563 F.2d, at 230. Preferential hiring along the lines of the Kaiser program is a reasonable response for the employer, whether or not a court, on these facts, could order the same step as a remedy. The company is able to avoid identifying victims of past discrimination, and so avoids claims for backpay that would inevitably follow a response limited to such victims. If past victims should be benefited by the program, however, the company mitigates its liability to those persons. Also, to the extent that Title VII liability is predicated on the "disparate effect" of an employer's past hiring practices, the program makes it less likely that such an effect could be demonstrated. Cf. County of Los Angeles v. Davis, 440 U.S. 625, 633-634, 99 S.Ct. 1379, 1384, 59 L.Ed.2d 642 (1979) (hiring could moot a past Title VII claim). And the Court has recently held that work-force statistics resulting from private affirmative action were probative of benign intent in a "disparate treatment" case. Furnco Construction Corp. v. Waters, 438 U.S. 567, 579-580, 98 S.Ct. 2943, 2950-951, 57 L.Ed.2d 957 (1978).
34
The "arguable violation" theory has a number of advantages. It responds to a practical problem in the administration of Title VII not anticipated by Congress. It draws predictability from the outline of present law and closely effectuates the purpose of the Act. Both Kaiser and the United States urge its adoption here. Because I agree that it is the soundest way to approach this case, my preference would be to resolve this litigation by applying it and holding that Kaiser's craft training program meets the requirement that voluntary affirmative action be a reasonable response to an "arguable violation" of Title VII.
II
35
The Court, however, declines to consider the narrow "arguable violation" approach and adheres instead to an interpretation of Title VII that permits affirmative action by an employer whenever the job category in question is "traditionally segregated." Ante, at 209, and n. 9. The sources cited suggest that the Court considers a job category to be "traditionally segregated" when there has been a societal history of purposeful exclusion of blacks from the job category, resulting in a persistent disparity between the proportion of blacks in the labor force and the proportion of blacks among those who hold jobs within the category.*
36
"Traditionally segregated job categories," where they exist, sweep far more broadly than the class of "arguable violations" of Title VII. The Court's expansive approach is somewhat disturbing for me because, as Mr. Justice REHNQUIST points out, the Congress that passed Title VII probably thought it was adopting a principle of nondiscrimination that would apply to blacks and whites alike. While setting aside that principle can be justified where necessary to advance statutory policy by encouraging reasonable responses as a form of voluntary compliance that mitigates "arguable violations," discarding the principle of nondiscrimination where no countervailing statutory policy exists appears to be at odds with the bargain struck when Title VII was enacted.
37
A closer look at the problem, however, reveals that in each of the principal ways in which the Court's "traditionally segregated job categories" approach expands on the "arguable violations" theory, still other considerations point in favor of the broad standard adopted by the Court, and make it possible for me to conclude that the Court's reading of the statute is an acceptable one.
38
A. The first point at which the Court departs from the "arguable violations" approach is that it measures an individual employer's capacity for affirmative action solely in terms of a statistical disparity. The individual employer need not have engaged in discriminatory practices in the past. While, under Title VII, a mere disparity may provide the basis for a prima facie case against an employer, Dothard v. Rawlinson, 433 U.S. 321, 329-331, 97 S.Ct. 2720, 2726-2727, 53 L.Ed.2d 786 (1977), it would not conclusively prove a violation of the Act. Teamsters v. United States, 431 U.S. 324, 339-340, n. 20, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977); see § 703(j), 42 U.S.C. § 2000e-2(j). As a practical matter, however, this difference may not be that great. While the "arguable violation" standard is conceptually satisfying, in practice the emphasis would be on "arguable" rather than on "violation." The great difficulty in the District Court was that no one had any incentive to prove that Kaiser had violated the Act. Neither Kaiser nor the Steelworkers wanted to establish a past violation, nor did Weber. The blacks harmed had never sued and so had no established representative. The Equal Employment Opportunity Commission declined to intervene, and cannot be expected to intervene in every case of this nature. To make the "arguable violation" standard work, it would have to be set low enough to permit the employer to prove it without obligating himself to pay a damages award. The inevitable tendency would be to avoid hairsplitting litigation by simply concluding that a mere disparity between the racial composition of the employer's work force and the composition of the qualified local labor force would be an "arguable violation," even though actual liability could not be established on that basis alone. See Note, 57 N.C.L.Rev. 695, 714-719 (1979).
39
B. The Court also departs from the "arguable violation" approach by permitting an employer to redress discrimination that lies wholly outside the bounds of Title VII. For example, Title VII provides no remedy for pre-Act discrimination. Hazelwood School District v. United States, 433 U.S. 299, 309-310, 97 S.Ct. 2736, 2742-2743, 53 L.Ed.2d 768 (1977); yet the purposeful discrimination that creates a "traditionally segregated job category" may have entirely predated the Act. More subtly, in assessing a prima facie case of Title VII liability, the composition of the employer's work force is compared to the composition of the pool of workers who meet valid job qualifications. Hazelwood, 433 U.S., at 308 and n. 13, 97 S.Ct., at 2741; Teamsters v. United States, 431 U.S., at 339-340, and n. 20, 97 S.Ct., at 1856. When a "job category" is traditionally segregated, however, that pool will reflect the effects of segregation, and the Court's approach goes further and permits a comparison with the composition of the labor force as a whole, in which minorities are more heavily represented.
40
Strong considerations of equity support an interpretation of Title VII that would permit private affirmative action to reach where Title VII itself does not. The bargain struck in 1964 with the passage of Title VII guaranteed equal opportunity for white and black alike, but where Title VII provides no remedy for blacks, it should not be construed to foreclose private affirmative action from supplying relief. It seems unfair for respondent Weber to argue, as he does, that the asserted scarcity of black craftsmen in Louisiana, the product of historic discrimination, makes Kaiser's training program illegal because it ostensibly absolves Kaiser of all Title VII liability. Brief for Respondents 60. Absent compelling evidence of legislative intent, I would not interpret Title VII itself as a means of "locking in" the effects of segregation for which Title VII provides no remedy. Such a construction, as the Court points out, ante, at 204, would be "ironic," given the broad remedial purposes of Title VII.
41
Mr. Justice REHNQUIST's dissent, while it focuses more on what Title VII does not require than on what Title VII forbids, cites several passages that appear to express an intent to "lock in" minorities. In mining the legislative history anew, however, the dissent, in my view, fails to take proper account of our prior cases that have given that history a much more limited reading than that adopted by the dissent. For example, in Griggs v. Duke Power Co., 401 U.S. 424, 434-436, and n. 11, 91 S.Ct. 849, 855-856, 28 L.Ed.2d 158 (1971), the Court refused to give controlling weight to the memorandum of Senators Clark and Case which the dissent now finds so persuasive. See post, at 239-241. And in quoting a statement from that memorandum that an employer would not be "permitted . . . to prefer Negroes for future vacancies," post, at 240, the dissent does not point out that the Court's opinion in Teamsters v. United States, 431 U.S., at 349-351, 97 S.Ct., at 1861-1862, implies that that language is limited to the protection of established seniority systems. Here, seniority is not in issue because the craft training program is new and does not involve an abrogation of pre-existing seniority rights. In short, the passages marshaled by the dissent are not so compelling as to merit the whip hand over the obvious equity of permitting employers to ameliorate the effects of past discrimination for which Title VII provides no direct relief.
III
42
I also think it significant that, while the Court's opinion does not foreclose other forms of affirmative action, the Kaiser program it approves is a moderate one. The opinion notes that the program does not afford an absolute preference for blacks, and that it ends when the racial composition of Kaiser's craftwork force matches the racial composition of the local population. It thus operates as a temporary tool for remedying past discrimination without attempting to "maintain" a previously achieved balance. See University of California Regents v. Bakke, 438 U.S. 265, 342 n. 17, 98 S.Ct. 2733, 2775, 57 L.Ed.2d 750 (1978) (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.). Because the duration of the program is finite, it perhaps will end even before the "stage of maturity when action along this line is no longer necessary." Id., at 403, 98 S.Ct., at 2806 (opinion of BLACKMUN, J.). And if the Court has misperceived the political will, it has the assurance that because the question is statutory Congress may set a different course if it so chooses.
43
Mr. Chief Justice BURGER, dissenting.
44
The Court reaches a result I would be inclined to vote for were I a Member of Congress considering a proposed amendment of Title VII. I cannot join the Court's judgment, however, because it is contrary to the explicit language of the statute and arrived at by means wholly incompatible with long-established principles of separation of powers. Under the guise of statutory "construction," the Court effectively rewrites Title VII to achieve what it regards as a desirable result. It "amends" the statute to do precisely what both its sponsors and its opponents agreed the statute was not intended to do.
45
When Congress enacted Title VII after long study and searching debate, it produced a statute of extraordinary clarity, which speaks directly to the issue we consider in this case. In § 703(d) Congress provided:
46
"It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training." 42 U.S.C. § 2000e-2(d).
47
Often we have difficulty interpreting statutes either because of imprecise drafting or because legislative compromises have produced genuine ambiguities. But here there is no lack of clarity, no ambiguity. The quota embodied in the collective-bargaining agreement between Kaiser and the Steelworkers unquestionably discriminates on the basis of race against individual employees seeking admission to on-the-job training programs. And, under the plain language of § 703(d), that is "an unlawful employment practice."
48
Oddly, the Court seizes upon the very clarity of the statute almost as a justification for evading the unavoidable impact of its language. The Court blandly tells us that Congress could not really have meant what it said, for a "literal construction" would defeat the "purpose" of the statute—at least the congressional "purpose" as five Justices divine it today. But how are judges supposed to ascertain the purpose of a statute except through the words Congress used and the legislative history of the statute's evolution? One need not even resort to the legislative history to recognize what is apparent from the face of Title VII—that it is specious to suggest that § 703(j) contains a negative pregnant that permits employers to do what §§ 703(a) and (d) unambiguously and unequivocally forbid employers from doing. Moreover, as Mr. Justice REHNQUIST's opinion—which I join—conclusively demonstrates, the legislative history makes equally clear that the supporters and opponents of Title VII reached an agreement about the statute's intended effect. That agreement, expressed so clearly in the language of the statute that no one should doubt its meaning, forecloses the reading which the Court gives the statute today.
49
Arguably, Congress may not have gone far enough in correcting the effects of past discrimination when it enacted Title VII. The gross discrimination against minorities to which the Court adverts—particularly against Negroes in the building trades and craft unions—is one of the dark chapters in the otherwise great history of the American labor movement. And, I do not question the importance of encouraging voluntary compliance with the purposes and policies of Title VII. But that statute was conceived and enacted to make discrimination against any individual illegal, and I fail to see how "voluntary compliance" with the no-discrimination principle that is the heart and soul of Title VII as currently written will be achieved by permitting employers to discriminate against some individuals to give preferential treatment to others.
50
Until today, I had thought the Court was of the unanimous view that "[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed" in Title VII. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Had Congress intended otherwise, it very easily could have drafted language allowing what the Court permits today. Far from doing so, Congress expressly prohibited in §§ 703(a) and (d) the very discrimination against Brian Weber which the Court today approves. If "affirmative action" programs such as the one presented in this case are to be permitted, it is for Congress, not this Court, to so direct.
51
It is often observed that hard cases make bad law. I suspect there is some truth to that adage, for the "hard" cases always tempt judges to exceed the limits of their authority, as the Court does today by totally rewriting a crucial part of Title VII to reach a "desirable" result. Cardozo no doubt had this type of case in mind when he wrote:
52
"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life.' Wide enough in all conscience is the field of discretion that remains." The Nature of the Judicial Process 141 (1921).
53
What Cardozo tells us is beware the "good result," achieved by judicially unauthorized or intellectually dishonest means on the appealing notion that the desirable ends justify the improper judicial means. For there is always the danger that the seeds of precedent sown by good men for the best of motives will yield a rich harvest of unprincipled acts of others also aiming at "good ends."
54
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
55
In a very real sense, the Court's opinion is ahead of its time: it could more appropriately have been handed down five years from now, in 1984, a year coinciding with the title of a book from which the Court's opinion borrows, perhaps subconsciously, at least one idea. Orwell describes in his book a governmental official of Oceania, one of the three great world powers, denouncing the current enemy, Eurasia, to an assembled crowd:
56
"It was almost impossible to listen to him without being first convinced and then maddened. . . . The speech had been proceeding for perhaps twenty minutes when a messenger hurried onto the platform and a scrap of paper was slipped into the speaker's hand. He unrolled and read it without pausing in his speech. Nothing altered in his voice or manner, or in the content of what he was saying, but suddenly the names were different. Without words said, a wave of understanding rippled through the crowd. Oceania was at war with Eastasia! . . . The banners and posters with which the square was decorated were all wrong! . . .
57
"[T]he speaker had switched from one line to the other actually in mid-sentence, not only without a pause, but without even breaking the syntax." G. Orwell, Nineteen Eighty-Four 181-182 (1949).
58
Today's decision represents an equally dramatic and equally unremarked switch in this Court's interpretation of Title VII.
59
The operative sections of Title VII prohibit racial discrimination in employment simpliciter. Taken in its normal meaning and as understood by all Members of Congress who spoke to the issue during the legislative debates, see infra, at 231-251, this language prohibits a covered employer from considering race when making an employment decision, whether the race be black or white. Several years ago, however, a United States District Court held that "the dismissal of white employees charged with misappropriating company property while not dismissing a similarly charged Negro employee does not raise a claim upon which Title VII relief may be granted." McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976). This Court unanimously reversed, concluding from the "uncontradicted legislative history" that "[T]itle VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes . . . ." Id., at 280, 96 S.Ct., at 2579.
60
We have never wavered in our understanding that Title VII "prohibits all racial discrimination in employment, without exception for any group of particular employees." Id., at 283, 96 S.Ct., at 2580 (emphasis in original). In Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), our first occasion to interpret Title VII, a unanimous Court observed that "[d]iscriminatory preference, for any group, minority or majority, is precisely and only what Congress has proscribed." And in our most recent discussion of the issue, we uttered words seemingly dispositive of this case: "It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant's race are already proportionately represented in the work force." Furnco Construction Corp. v. Waters, 438 U.S. 567, 579, 98 S.Ct. 2943, 2951, 57 L.Ed.2d 957 (1978) (emphasis in original).1
61
Today, however, the Court behaves much like the Orwellian speaker earlier described, as if it had been handed a note indicating that Title VII would lead to a result unacceptable to the Court if interpreted here as it was in our prior decisions. Accordingly, without even a break in syntax, the Court rejects "a literal construction of § 703(a)" in favor of newly discovered "legislative history," which leads it to a conclusion directly contrary to that compelled by the "uncontradicted legislative history" unearthed in McDonald and our other prior decisions. Now we are told that the legislative history of Title VII shows that employers are free to discriminate on the basis of race: an employer may, in the Court's words, "trammel the interests of the white employees" in favor of black employees in order to eliminate "racial imbalance." Ante, at 208. Our earlier interpretations of Title VII, like the banners and posters decorating the square in Oceania, were all wrong.
62
As if this were not enough to make a reasonable observer question this Court's adherence to the oft-stated principle that our duty is to construe rather than rewrite legislation, United States v. Rutherford, 442 U.S. 544, 555, 99 S.Ct. 2470, 2477, 61 L.Ed.2d 68 (1979), the Court also seizes upon § 703(j) of Title VII as an independent, or at least partially independent, basis for its holding. Totally ignoring the wording of that section, which is obviously addressed to those charged with the responsibility of interpreting the law rather than those who are subject to its proscriptions, and totally ignoring the months of legislative debates preceding the section's introduction and passage, which demonstrate clearly that it was enacted to prevent precisely what occurred in this case, the Court infers from § 703(j) that "Congress chose not to forbid all voluntary race-conscious affirmative action." Ante, at 206.
63
Thus, by a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, "uncontradicted" legislative history and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions. It may be that one or more of the principal sponsors of Title VII would have preferred to see a provision allowing preferential treatment of minorities written into the bill. Such a provision, however, would have to have been expressly or impliedly excepted from Title VII's explicit prohibition on all racial discrimination in employment. There is no such exception in the Act. And a reading of the legislative debates concerning Title VII, in which proponents and opponents alike uniformly denounced discrimination in favor of, as well as discrimination against, Negroes, demonstrates clearly that any legislator harboring an unspoken desire for such a provision could not possibly have succeeded in enacting it into law.
64
* Kaiser opened its Gramercy, La., plant in 1958. Because the Gramercy facility had no apprenticeship or in-plant craft training program, Kaiser hired as craftworkers only persons with prior craft experience. Despite Kaiser's efforts to locate and hire trained black craftsmen, few were available in the Gramercy area, and as a consequence, Kaiser's craft positions were manned almost exclusively by whites. In February 1974, under pressure from the Office of Federal Contract Compliance to increase minority representation in craft positions at its various plants,2 and hoping to deter the filing of employment discrimination claims by minorities, Kaiser entered into a collective-bargaining agreement with the United Steelworkers of America (Steelworkers) which created a new on-the-job craft training program at 15 Kaiser facilities, including the Gramercy plant. The agreement required that no less than one minority applicant be admitted to the training program for every nonminority applicant until the percentage of blacks in craft positions equaled the percentage of blacks in the local work force.3 Eligibility for the craft training programs was to be determined on the basis of plant seniority, with black and white applicants to be selected on the basis of their relative seniority within their racial group.
65
Brian Weber is white. He was hired at Kaiser's Gramercy plant in 1968. In April 1974, Kaiser announced that it was offering a total of nine positions in three on-the-job training programs for skilled craft jobs. Weber applied for all three programs, but was not selected. The successful candidates—five black and four white applicants—were chosen in accordance with the 50% minority admission quota mandated under the 1974 collective-bargaining agreement. Two of the successful black applicants had less seniority than Weber.4 Weber brought the instant class action5 in the United States District Court for the Eastern District of Louisiana, alleging that use of the 50% minority admission quota to fill vacancies in Kaiser's craft training programs violated Title VII's prohibition on racial discrimination in employment. The District Court and the Court of Appeals for the Fifth Circuit agreed, enjoining further use of race as a criterion in admitting applicants to the craft training programs.6
II
66
Were Congress to act today specifically to prohibit the type of racial discrimination suffered by Weber, it would be hard pressed to draft language better tailored to the task than that found in § 703(d) of Title VII:
67
"It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training." 78 Stat. 256, 42 U.S.C. § 2000e-2(d).
68
Equally suited to the task would be § 703(a)(2), which makes it unlawful for an employer to classify his employees "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 78 Stat. 255, 42 U.S.C. § 2000e-2(a)(2).7
69
Entirely consistent with these two express prohibitions is the language of § 703(j) of Title VII, which provides that the Act is not to be interpreted "to require any employer . . . to grant preferential treatment to any individual or to any group because of the race . . . of such individual or group" to correct a racial imbalance in the employer's work force. 42 U.S.C. § 2000e-2(j).8 Seizing on the word "require," the Court infers that Congress must have intended to "permit" this type of racial discrimination. Not only is this reading of § 703(j) outlandish in the light of the flat prohibitions of §§ 703(a) and (d), but also, as explained in Part III, it is totally belied by the Act's legislative history.
70
Quite simply, Kaiser's racially discriminatory admission quota is flatly prohibited by the plain language of Title VII. This normally dispositive fact,9 however, gives the Court only momentary pause. An "interpretation" of the statute upholding Weber's claim would, according to the Court, " 'bring about an end completely at variance with the purpose of the statute.' " Ante, at 202, quoting United States v. Public Utilities Comm'n, 345 U.S. 295, 315, 73 S.Ct. 706, 718, 97 L.Ed. 1020 (1953). To support this conclusion, the Court calls upon the "spirit" of the Act, which it divines from passages in Title VII's legislative history indicating that enactment of the statute was prompted by Congress' desire " 'to open employment opportunities for Negroes in occupations which [had] been traditionally closed to them.' " Ante, at 203, quoting 110 Cong.Rec. 6548 (1964) (remarks of Sen. Humphrey).10 But the legislative history invoked by the Court to avoid the plain language of §§ 703(a) and (d) simply misses the point. To be sure, the reality of employment discrimination against Negroes provided the primary impetus for passage of Title VII. But this fact by no means supports the proposition that Congress intended to leave employers free to discriminate against white persons.11 In most cases, "[l]egislative history . . . is more vague than the statute we are called upon to interpret." supra, at 320, 73 S.Ct., at 720 (Jackson, J., concurring). Here, however, the legislative history of Title VII is as clear as the language of §§ 703(a) and (d), and it irrefutably demonstrates that Congress meant precisely what it said in §§ 703(a) and (d)—that no racial discrimination in employment is permissible under Title VII, not even preferential treatment of minorities to correct racial imbalance.
III
71
In undertaking to review the legislative history of Title VII, I am mindful that the topic hardly makes for light reading, but I am also fearful that nothing short of a thorough examination of the congressional debates will fully expose the magnitude of the Court's misinterpretation of Congress' intent.
A.
72
Introduced on the floor of the House of Representatives on June 20, 1963, the bill—H.R. 7152—that ultimately became the Civil Rights Act of 1964 contained no compulsory provisions directed at private discrimination in employment. The bill was promptly referred to the Committee on the Judiciary, where it was amended to include Title VII. With two exceptions, the bill reported by the House Judiciary Committee contained §§ 703(a) and (d) as they were ultimately enacted. Amendments subsequently adopted on the House floor added § 703's prohibition against sex discrimination and § 703(d)'s coverage of "on-the-job training."
73
After noting that "[t]he purpose of [Title VII] is to eliminate . . . discrimination in employment based on race, color, religion, or national origin," the Judiciary Committee's Report simply paraphrased the provisions of Title VII without elaboration. H.R.Rep., pt. 1, p. 26, U.S.Code Cong. & Admin.News 1964, p. 2401. In a separate Minority Report, however, opponents of the measure on the Committee advanced a line of attack which was reiterated throughout the debates in both the House and Senate and which ultimately led to passage of § 703(j). Noting that the word "discrimination" was nowhere defined in H.R.7152, the Minority Report charged that the absence from Title VII of any reference to "racial imbalance" was a "public relations" ruse and that "the administration intends to rely upon its own construction of 'discrimination' as including the lack of racial balance . . . ." H.R.Rep., pt. 1, pp. 67-68, U.S.Code Cong. & Admin.News 1964, p. 2436. To demonstrate how the bill would operate in practice, the Minority Report posited a number of hypothetical employment situations, concluding in each example that the employer "may be forced to hire according to race, to 'racially balance' those who work for him in every job classification or be in violation of Federal law." Id., at 69, U.S.Code Cong. & Admin.News 1964, p. 2438 (emphasis in original).12
74
When H.R. 7152 reached the House floor, the opening speech in support of its passage was delivered by Representative Celler, Chairman of the House Judiciary Committee and the Congressman responsible for introducing the legislation. A portion of that speech responded to criticism "seriously misrepresent[ing] what the bill would do and grossly distort[ing] its effects":
75
"[T]he charge has been made that the Equal Employment Opportunity Commission to be established by title VII of the bill would have the power to prevent a business from employing and promoting the people it wished, and that a 'Federal inspector' could then order the hiring and promotion only of employees of certain races or religious groups. This description of the bill is entirely wrong. . . .
76
* * * * *
77
"Even [a] court could not order that any preference be given to any particular race, religion or other group, but would be limited to ordering an end of discrimination. The statement that a Federal inspector could order the employment and promotion only of members of a specific racial or religious group is therefore patently erroneous.
78
* * * * *
79
". . . The Bill would do no more than prevent . . . employers from discriminating against or in favor of workers because of their race, religion, or national origin.
80
"It is likewise not true that the Equal Employment Opportunity Commission would have power to rectify existing 'racial or religious imbalance' in employment by requiring the hiring of certain people without regard to their qualifications simply because they are of a given race or religion. Only actual discrimination could be stopped." 110 Cong.Rec. 1518 (1964) (emphasis added).
81
Representative Celler's construction of Title VII was repeated by several other supporters during the House debate.13
82
Thus, the battle lines were drawn early in the legislative struggle over Title VII, with opponents of the measure charging that agencies of the Federal Government such as the Equal Employment Opportunity Commission (EEOC), by interpreting the word "discrimination" to mean the existence of "racial imbalance," would "require" employers to grant preferential treatment to minorities, and supporters responding that the EEOC would be granted no such power and that, indeed, Title VII prohibits discrimination "in favor of workers because of their race." Supporters of H.R. 7152 in the House ultimately prevailed by a vote of 290 to 130,14 and the measure was sent to the Senate to begin what became the longest debate in that body's history.
B
83
The Senate debate was broken into three phases: the debate on sending the bill to Committee, the general debate on the bill prior to invocation of cloture, and the debate following cloture.
84
* When debate on the motion to refer the bill to Committee opened, opponents of Title VII in the Senate immediately echoed the fears expressed by their counterparts in the House, as is demonstrated by the following colloquy between Senators Hill and Ervin:
85
"Mr. ERVIN. I invite attention to . . . Section [703(a)] . . . .
86
* * * * *
87
"I ask the Senator from Alabama if the Commission could not tell an employer that he had too few employees, that he had limited his employment, and enter an order, under [Section 703(a)], requiring him to hire more persons, not because the employer thought he needed more persons, but because the Commission wanted to compel him to employ persons of a particular race.
88
"Mr. HILL. The Senator is correct. That power is written into the bill. The employer could be forced to hire additional persons . . . ." 110 Cong.Rec. 4764 (1964).15
89
Senator Humphrey, perhaps the primary moving force behind H.R. 7152 in the Senate, was the first to state the proponents' understanding of Title VII. Responding to a political advertisement charging that federal agencies were at liberty to interpret the word "discrimination" in Title VII to require racial balance, Senator Humphrey stated: "[T]he meaning of racial or religious discrimination is perfectly clear. . . . [I]t means a distinction in treatment given to different individuals because of their different race, religion, or national origin." Id., at 5423.16 Stressing that Title VII "does not limit the employer's freedom to hire, fire, promote or demote for any reasons—or no reasons—so long as his action is not based on race," Senator Humphrey further stated that "nothing in the bill would permit any official or court to require any employer or labor union to give preferential treatment to any minority group." Ibid.17
90
After 17 days of debate, the Senate voted to take up the bill directly, without referring it to a committee. Id., at 6455. Consequently, there is no Committee Report in the Senate.
2
91
Formal debate on the merits of H.R. 7152 began on March 30, 1964. Supporters of the bill in the Senate had made elaborate preparations for this second round. Senator Humphrey, the majority whip, and Senator Kuchel, the minority whip, were selected as the bipartisan floor managers on the entire civil rights bill. Responsibility for explaining and defending each important title of the bill was placed on bipartisan "captains." Senators Clark and Case were selected as the bipartisan captains responsible for Title VII. Vaas, Title VII: Legislative History, 7 B.C.Ind. & Com.L.Rev. 431, 444-445 (1966) (hereinafter Title VII: Legislative History).
92
In the opening speech of the formal Senate debate on the bill, Senator Humphrey addressed the main concern of Title VII's opponents, advising that not only does Title VII not require use of racial quotas, it does not permit their use. "The truth," stated the floor leader of the bill, "is that this title forbids discriminating against anyone on account of race. This is the simple and complete truth about title VII." 110 Cong.Rec. 6549 (1964). Senator Humphrey continued:
93
"Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial 'quota' or to achieve a certain racial balance.
94
"That bugaboo has been brought up a dozen times; but it is nonexistent. In fact, the very opposite is true. Title VII prohibits discrimination. In effect, it says that race, religion and national origin are not to be used as the basis for hiring and firing. Title VII is designed to encourage hiring on the basis of ability and qualifications, not race or religion." Ibid. (emphasis added).
95
At the close of his speech, Senator Humphrey returned briefly to the subject of employment quotas: "It is claimed that the bill would require racial quotas for all hiring, when in fact it provides that race shall not be a basis for making personnel decisions." Id., at 6553.
96
Senator Kuchel delivered the second major speech in support of H.R. 7152. In addressing the concerns of the opposition, he observed that "[n]othing could be further from the truth" than the charge that "Federal inspectors" would be empowered under Title VII to dictate racial balance and preferential advancement of minorities. Id., at 6563. Senator Kuchel emphasized that seniority rights would in no way be affected by Title VII: "Employers and labor organizations could not discriminate in favor of or against a person because of his race, his religion, or his national origin. In such MATTERS . . . THE BILL NOW BEFORE US . . . Is color-blind." id., at 6564 (emphasis added).
97
A few days later the Senate's attention focused exclusively on Title VII, as Senators Clark and Case rose to discuss the title of H.R. 7152 on which they shared floor "captain" responsibilities. In an interpretative memorandum submitted jointly to the Senate, Senators Clark and Case took pains to refute the opposition's charge that Title VII would result in preferential treatment of minorities. Their words were clear and unequivocal:
98
"There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited as to any individual." Id., at 7213.18
99
Of particular relevance to the instant litigation were their observations regarding seniority rights. As if directing their comments at Brian Weber, the Senators said:
100
"Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer's obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged—or indeed permitted —to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier." Ibid. (emphasis added).19
101
Thus, with virtual clairvoyance the Senate's leading supporters of Title VII anticipated precisely the circumstances of this case and advised their colleagues that the type of minority preference employed by Kaiser would violate Title VII's ban on racial discrimination. To further accentuate the point, Senator Clark introduced another memorandum dealing with common criticisms of the bill, including the charge that radial quotas would be imposed under Title VII. The answer was simple and to the point: "Quotas are themselves discriminatory." Id., at 7218.
102
Despite these clear statements from the bill's leading and most knowledgeable proponents, the fears of the opponents were not put to rest. Senator Robertson reiterated the view that "discrimination" could be interpreted by a federal "bureaucrat" to require hiring quotas. Id., at 7418-7420.20 Senators Smathers and Sparkman, while conceding that Title VII does not in so many words require the use of hiring quotas, repeated the opposition's view that employers would be coerced to grant preferential hiring treatment to minorities by agencies of the Federal Government.21 Senator Williams was quick to respond:
103
"Those opposed to H.R. 7152 should realize that to hire a Negro solely because he is a Negro is racial discrimination, just as much as a 'white only' employment policy. Both forms of discrimination are prohibited by title VII of this bill. The language of that title simply states that race is not a qualification for employment. . . . Some people charge that H.R. 7152 favors the Negro, at the expense of the white majority. But how can the language of equality favor one race or one religion over another? Equality can have only one meaning, and that meaning is self-evident to reasonable men. Those who say that equality means favoritism do violence to common sense." Id., at 8921.
104
Senator Williams concluded his remarks by noting that Title VII's only purpose is "the elimination of racial and religious discrimination in employment." Ibid.22 On May 25, Senator Humphrey again took the floor to defend the bill against "the well-financed drive by certain opponents to confuse and mislead the American people." Id., at 11846. Turning once again to the issue of preferential treatment, Senator Humphrey remained faithful to the view that he had repeatedly expressed:
105
"The title does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that any quota systems may be established to maintain racial balance in employment. In fact, the title would prohibit preferential treatment for any particular group, and any person, whether or not a member of any minority group would be permitted to file a complaint of discriminatory employment practices." Id., at 11848 (emphasis added).
106
While the debate in the Senate raged, a bipartisan coalition under the leadership of Senators Dirksen, Mansfield, Humphrey, and Kuchel was working with House leaders and representatives of the Johnson administration on a number of amendments to H.R. 7152 designed to enhance its prospects of passage. The so-called "Dirksen-Mansfield" amendment was introduced on May 26 by Senator Dirksen as a substitute for the entire House-passed bill. The substitute bill, which ultimately became law, left unchanged the basic prohibitory language of §§ 703(a) and (d), as well as the remedial provisions in § 706(g). It added, however, several provisions defining and clarifying the scope of Title VII's substantive prohibitions. One of those clarifying amendments, § 703(j), was specifically directed at the opposition's concerns regarding racial balancing and preferential treatment of minorities, providing in pertinent part: "Nothing contained in [Title VII] shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race . . . of such individual or group on account of" a racial imbalance in the employer's work force. 42 U.S.C. § 2000e-2(j); quoted in full in n. 8, supra.
107
The Court draws from the language of § 703(j) primary support for its conclusion that Title VII's blanket prohibition on racial discrimination in employment does not prohibit preferential treatment of blacks to correct racial imbalance. Alleging that opponents of Title VII had argued (1) that the Act would be interpreted to require employers with racially imbalanced work forces to grant preferential treatment to minorities and (2) that "employers with racially imbalanced work forces would grant preferential treatment to racial minorities even if not required to do so by the Act," ante, at 2729, the Court concludes that § 703(j) is responsive only to the opponents' first objection and that Congress therefore must have intended to permit voluntary, private discrimination against whites in order to correct racial imbalance.
108
Contrary to the Court's analysis, the language of § 703(j) is precisely tailored to the objection voiced time and again by Title VII's opponents. Not once during the 83 days of debate in the Senate did a speaker, proponent or opponent, suggest that the bill would allow employers voluntarily to prefer racial minorities over white persons.23 In light of Title VII's flat prohibition on discrimination "against any individual . . . because of such individual's race," § 703(a), 42 U.S.C. § 2000e-2(a), such a contention would have been, in any event, too preposterous to warrant response. Indeed, speakers on both sides of the issue, as the legislative history makes clear, recognized that Title VII would tolerate no voluntary racial preference, whether in favor of blacks or whites. The complaint consistently voiced by the opponents was that Title VII, particularly the word "discrimination," would be interpreted by federal agencies such as the EEOC to require the correction of racial imbalance through the granting of preferential treatment to minorities. Verbal assurances that Title VII would not require—indeed, would not permit—preferential treatment of blacks having failed, supporters of H.R. 7152 responded by proposing an amendment carefully worded to meet, and put to rest, the opposition's charge. Indeed, unlike §§ 703(a) and (d), which are by their terms directed at entities—e. g., employers, labor unions—whose actions are restricted by Title VII's prohibitions, the language of § 703(j) is specifically directed at entities—federal agencies and courts—charged with the responsibility of interpreting Title VII's provisions.24
109
In light of the background and purpose of § 703(j), the irony of invoking the section to justify the result in this case is obvious. The Court's frequent references to the "voluntary" nature of Kaiser's racially discriminatory admission quota bear no relationship to the facts of this case. Kaiser and the Steelworkers acted under pressure from an agency of the Federal Government, the Office of Federal Contract Compliance, which found that minorities were being "underutilized" at Kaiser's plants. See n. 2, supra. That is, Kaiser's work force was racially imbalanced. Bowing to that pressure, Kaiser instituted an admissions quota preferring blacks over whites, thus confirming that the fears of Title VII's opponents were well founded. Today, § 703(j), adopted to allay those fears, is invoked by the Court to uphold imposition of a racial quota under the very circumstances that the section was intended to prevent.25
110
Section 703(j) apparently calmed the fears of most of the opponents; after its introduction, complaints concerning racial balance and preferential treatment died down considerably.26 Proponents of the bill, however, continued to reassure the opposition that its concerns were unfounded. In a lengthy defense of the entire civil rights bill, Senator Muskie emphasized that the opposition's "torrent of words . . . cannot obscure this basic, simple truth: Every American citizen has the right to equal treatment—not favored treatment, not complete individual equality—just equal treatment." 110 Cong.Rec. 12614 (1964). With particular reference to Title VII, Senator Muskie noted that the measure "seeks to afford to all Americans equal opportunity in employment without discrimination. Not equal pay. Not 'racial balance.' Only equal opportunity." Id., at 12617.27
111
Senator Saltonstall, Chairman of the Republican Conference of Senators participating in the drafting of the Dirksen-Mansfield amendment, spoke at length on the substitute bill. He advised the Senate that the Dirksen-Mansfield substitute, which included § 703(j), "provides no preferential treatment for any group of citizens. In fact, it specifically prohibits such treatment." 110 Cong.Rec. 12691 (1964) (emphasis added).28
112
On June 9, Senator Ervin offered an amendment that would entirely delete Title VII from the bill. In answer to Senator Ervin's contention that Title VII "would make the members of a particular race special favorites of the laws," id., at 13079, Senator Clark retorted:
113
"The bill does not make anyone higher than anyone else. It establishes no quotas. It leaves an employer free to select whomever he wishes to employ. . . .
114
"All this is subject to one qualification, and that qualification, is to state: 'In your activity as an employer . . . you must not discriminate because of the color of a man's skin. . . .'
115
"That is all this provision does. . . .
116
"It merely says, 'When you deal in interstate commerce, you must not discriminate on the basis of race . . . .' " Id., at 13080.
117
The Ervin amendment was defeated, and the Senate turned its attention to an amendment proposed by Senator Cotton to limit application of Title VII to employers of at least 100 employees. During the course of the Senate's deliberations on the amendment, Senator Cotton had a revealing discussion with Senator Curtis, also an opponent of Title VII. Both men expressed dismay that Title VII would prohibit preferential hiring of "members of a minority race in order to enhance their opportunity":
118
"Mr. CURTIS. Is it not the opinion of the Senator that any individuals who provide jobs for a class of people who have perhaps not had sufficient opportunity for jobs should be commended rather than outlawed? "Mr. COTTON. Indeed it is." Id., at 13086.29
119
Thus, in the only exchange on the Senate floor raising the possibility that an employer might wish to reserve jobs for minorities in order to assist them in overcoming their employment disadvantage, both speakers concluded that Title VII prohibits such, in the words of the Court, "voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy." Ante, at 204. Immediately after this discussion, both Senator Dirksen and Senator Humphrey took the floor in defense of the 25-employee limit contained in the Dirksen-Mansfield substitute bill, and neither Senator disputed the conclusions of Senators Cotton and Curtis. The Cotton amendment was defeated.
3
120
On June 10, the Senate, for the second time in its history, imposed cloture on its Members. The limited debate that followed centered on proposed amendments to the Dirksen-Mansfield substitute. Of some 24 proposed amendments, only 5 were adopted.
121
As the civil rights bill approached its final vote, several supporters rose to urge its passage. Senator Muskie adverted briefly to the issue of preferential treatment: "It has been said that the bill discriminates in favor of the Negro at the expense of the rest of us. It seeks to do nothing more than to lift the Negro from the status of inequality to one of equality of treatment." 110 Cong.Rec. 14328 (1964) (emphasis added). Senator Moss, in a speech delivered on the day that the civil rights bill was finally passed, had this to say about quotas:
122
"The bill does not accord to any citizen advantage or preference—it does not fix quotas of employment or school population—it does not force personal association. What it does is to prohibit public officials and those who invite the public generally to patronize their businesses or to apply for employment, to utilize the offensive, humiliating, and cruel practice of discrimination on the basis of race. In short, the bill does not accord special consideration; it establishes equality." Id., at 14484 (emphasis added).
123
Later that day, June 19, the issue was put to a vote, and the Dirksen-Mansfield substitute bill was passed.
C
124
The Act's return engagement in the House was brief. The House Committee on Rules reported the Senate version without amendments on June 30, 1964. By a vote of 289 to 126, the House adopted H.Res. 789, thus agreeing to the Senate's amendments of H.R. 7152.30 Later that same day, July 2, the President signed the bill and the Civil Rights Act of 1964 became law.
IV
125
Reading the language of Title VII, as the Court purports to do, "against the background of [its] legislative history . . . and the historical context from which the Act arose," ante, at 201, one is led inescapably to the conclusion that Congress fully understood what it was saying and meant precisely what it said. Opponents of the civil rights bill did not argue that employers would be permitted under Title VII voluntarily to grant preferential treatment to minorities to correct racial imbalance. The plain language of the statute too clearly prohibited such racial discrimination to admit of any doubt. They argued, tirelessly, that Title VII would be interpreted by federal agencies and their agents to require unwilling employers to racially balance their work forces by granting preferential treatment to minorities. Supporters of H.R. 7152 responded, equally tirelessly, that the Act would not be so interpreted because not only does it not require preferential treatment of minorities, it also does not permit preferential treatment of any race for any reason. It cannot be doubted that the proponents of Title VII understood the meaning of their words, for "[s]eldom has similar legislation been debated with greater consciousness of the need for 'legislative history,' or with greater care in the making thereof, to guide the courts in interpreting and applying the law." Title VII: Legislative History, at 444.
126
To put an end to the dispute, supporters of the civil rights bill drafted and introduced § 703(j). Specifically addressed to the opposition's charge, § 703(j) simply enjoins federal agencies and courts from interpreting Title VII to require an employer to prefer certain racial groups to correct imbalances in his work force. The section says nothing about voluntary preferential treatment of minorities because such racial discrimination is plainly proscribed by §§ 703(a) and (d). Indeed, had Congress intended to except voluntary, race-conscious preferential treatment from the blanket prohibition of racial discrimination in §§ 703(a) and (d), it surely could have drafted language better suited to the task than § 703(j). It knew how. Section 703(i) provides:
127
"Nothing contained in [Title VII] shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation." 78 Stat. 257, 42 U.S.C. § 2000e-2(i).
V
128
Our task in this case, like any other case involving the construction of a statute, is to give effect to the intent of Congress. To divine that intent, we traditionally look first to the words of the statute and, if they are unclear, then to the statute's legislative history. Finding the desired result hopelessly foreclosed by these conventional sources, the Court turns to a third source—the "spirit" of the Act. But close examination of what the Court proffers as the spirit of the Act reveals it as the spirit animating the present majority, not the 88th Congress. For if the spirit of the Act eludes the cold words of the statute itself, it rings out with unmistakable clarity in the words of the elected representatives who made the Act law. It is equality. Senator Dirksen, I think, captured that spirit in a speech delivered on the floor of the Senate just moments before the bill was passed:
129
". . . [T]oday we come to grips finally with a bill that advances the enjoyment of living; but, more than that, it advances the equality of opportunity.
130
"I do not emphasize the word 'equality' standing by itself. It means equality of opportunity in the field of education. It means equality of opportunity in the field of employment. It means equality of opportunity in the field of participation in the affairs of government . . . .
131
"That is it.
132
"Equality of opportunity, if we are going to talk about conscience, is the mass conscience of mankind that speaks in every generation, and it will continue to speak long after we are dead and gone." 110 Cong.Rec. 14510 (1964).
133
There is perhaps no device more destructive to the notion of equality than the numerus clausus —the quota. Whether described as "benign discrimination" or "affirmative action," the racial quota is nonetheless a creator of castes, a two-edged sword that must demean one in order to prefer another. In passing Title VII, Congress outlawed all racial discrimination, recognizing that no discrimination based on race is benign, that no action disadvantaging a person because of his color is affirmative. With today's holding, the Court introduces into Title VII a tolerance for the very evil that the law was intended to eradicate, without offering even a clue as to what the limits on that tolerance may be. We are told simply that Kaiser's racially discriminatory admission quota "falls on the permissible side of the line." Ante, at 208. By going not merely beyond, but directly against Title VII's language and legislative history, the Court has sown the wind. Later courts will face the impossible task of reaping the whirlwind.
1
Judicial findings of exclusion from crafts on racial grounds are so numerous as to make such exclusion a proper subject for judicial notice. See, e. g., United States v. Elevator Constructors, 538 F.2d 1012 (CA3 1976); Associated General Contractors of Massachusetts v. Altshuler, 490 F.2d 9 (CA1 1973); Southern Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (CA7 1972); Contractors Assn. of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (CA3 1971); Insulators & Asbestos Workers v. Vogler, 407 F.2d 1047 (CA5 1969); Buckner v. Goodyear Tire & Rubber Co., 339 F.Supp. 1108 (ND Ala.1972), aff'd without opinion, 476 F.2d 1287 (CA5 1973). See also U.S. Commission on Civil Rights, The Challenge Ahead: Equal Opportunity in Referral Unions 58-94 (1976) (summarizing judicial findings of discrimination by craft unions); G. Myrdal, An American Dilemma 1079-1124 (1944); F. Marshall & V. Briggs, The Negro and Apprenticeship (1967); S. Spero & A. Harris, The Black Worker (1931); U.S. Commission on Civil Rights, Employment 97 (1961); State Advisory Committees, U.S. Commission on Civil Rights, 50 States Report 209 (1961); Marshall, The Negro in Southern Unions, in The Negro and the American Labor Movement 145 (J. Jacobson, ed. 1968); App. 63, 104.
2
Section 703(a), 78 Stat. 255, as amended, 86 Stat. 109, 42 U.S.C. § 2000e-2(a), provides:
"(a) . . . It shall be an unlawful employment practice for an employer—
"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."
3
Section 703(d), 78 Stat. 256, 42 U.S.C. § 2000e-2(d), provides:
"It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training."
4
The problem that Congress addressed in 1964 remains with us. In 1962, the nonwhite unemployment rate was 124% higher than the white rate. See 110 Cong.Rec. 6547 (1964) (remarks of Sen. Humphrey). In 1978, the black unemployment rate was 129% higher. See Monthly Labor Review, U. S. Department of Labor, Bureau of Labor Statistics 78 (Mar. 1979).
5
Section 703(j) of Title VII, 78 Stat. 257, 42 U.S.C. § 2000e-2(j), provides:
"Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area."
Section 703(j) speaks to substantive liability under Title VII, but it does not preclude courts from considering racial imbalance as evidence of a Title VII violation. See Teamsters v. United States, 431 U.S. 324, 339-340, n. 20, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977). Remedies for substantive violations are governed by § 706(g), 42 U.S.C. § 2000e-5(g).
6
Title VI of the Civil Rights Act of 1964, considered in University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), contains no provision comparable to § 703(j). This is because Title VI was an exercise of federal power over a matter in which the Federal Government was already directly involved: the prohibitions against race-based conduct contained in Title VI governed "program[s] or activit[ies] receiving Federal financial assistance." 42 U.S.C. § 2000d. Congress was legislating to assure federal funds would not be used in an improper manner. Title VII, by contrast, was enacted pursuant to the commerce power to regulate purely private decisionmaking and was not intended to incorporate and particularize the commands of the Fifth and Fourteenth Amendments. Title VII and Title VI, therefore, cannot be read in pari materia. See 110 Cong.Rec. 8315 (1964) (remarks of Sen. Cooper). See also id., at 11615 (remarks of Sen. Cooper).
7
Respondent argues that our construction of § 703 conflicts with various remarks in the legislative record. See, e. g., 110 Cong.Rec. 7213 (1964) (Sens. Clark and Case); id., at 7218 (Sens. Clark and Case); id., at 6549 (Sen. Humphrey); id., at 8921 (Sen. Williams). We do not agree. In Senator Humphrey's words, these comments were intended as assurances that Title VII would not allow establishment of systems "to maintain racial balance in employment." Id., at 11848 (emphasis added). They were not addressed to temporary, voluntary, affirmative action measures undertaken to eliminate manifest racial imbalance in traditionally segregated job categories. Moreover, the comments referred to by respondent all preceded the adoption of § 703(j), 42 U.S.C. § 2000e-2(j). After § 703(j) was adopted, congressional comments were all to the effect that employers would not be required to institute preferential quotas to avoid Title VII liability, see, e. g., 110 Cong.Rec. 12819 (1964) (remarks of Sen. Dirksen); id., at 13079-13080 (remarks of Sen. Clark); id., at 15876 (remarks of Rep. Lindsay). There was no suggestion after the adoption of § 703(j) that wholly voluntary, race-conscious, affirmative action efforts would in themselves constitute a violation of Title VII. On the contrary, as Representative MacGregor told the House shortly before the final vote on Title VII:
"Important as the scope and extent of this bill is, it is also vitally important that all Americans understand what this bill does not cover.
"Your mail and mine, your contacts and mine with our constituents, indicates a great degree of misunderstanding about this bill. People complain about . . . preferential treatment or quotas in employment. There is a mistaken belief that Congress is legislating in these areas in this bill. When we drafted this bill we excluded these issues largely because the problems raised by these controversial questions are more properly handled at a governmental level closer to the American people and by communities and individuals themselves." 110 Cong.Rec. 15893 (1964).
8
See n. 1, supra. This is not to suggest that the freedom of an employer to undertake race-conscious affirmative action efforts depends on whether or not his effort is motivated by fear of liability under Title VII.
9
Our disposition makes unnecessary consideration of petitioners' argument that their plan was justified because they feared that black employees would bring suit under Title VII if they did not adopt an affirmative action plan. Nor need we consider petitioners' contention that their affirmative action plan represented an attempt to comply with Exec. Order No. 11246, 3 CFR 339 (1964-1965 Comp.).
*
The jobs in question here include those of carpenter, electrician, general repairman, insulator, machinist, and painter. App. 165. The sources cited, ante, at 198 n. 1, establish, for example, that although 11.7% of the United States population in 1970 was black, the percentage of blacks among the membership of carpenters' unions in 1972 was only 3.7%. For painters, the percentage was 4.9, and for electricians, 2.6. U.S. Commission on Civil Rights, The Challenge Ahead: Equal Opportunity in Referral Unions 274, 281 (1976). Kaiser's Director of Equal Opportunity Affairs testified that, as a result of discrimination in employment and training opportunity, blacks were underrepresented in skilled crafts "in every industry in the United States, and in every area of the United States." App. 90. While the parties dispute the cause of the relative underrepresentation of blacks in Kaiser's craftwork force, the Court of Appeals indicated that it thought "the general lack of skills among available blacks" was responsible. 563 F.2d 216, 224 n. 13. There can be little doubt that any lack of skill has its roots in purposeful discrimination of the past, including segregated and inferior trade schools for blacks in Louisiana, U.S. Commission on Civil Rights, 50 States Report 209 (1961); traditionally all-white craft unions in that State, including the electrical workers and the plumbers, id., at 208; union nepotism, Asbestos Workers v. Vogler, 407 F.2d 1047 (CA5 1969); and segregated apprenticeship programs, F. Marshall & V. Briggs, The Negro and Apprenticeship 27 (1967).
1
Our statements in Griggs and Furnco Construction patently inconsistent with today's holding, are not even mentioned, much less distinguished, by the Court.
2
The Office of Federal Contract Compliance (OFCC), subsequently renamed the Office of Federal Contract Compliance Programs (OFCCP), is an arm of the Department of Labor responsible for ensuring compliance by Government contractors with the equal employment opportunity requirements established by Exec.Order No. 11246, 3 CFR 339 (1964-1965 Comp.), as amended by Exec.Order No. 11375, 3 CFR 684 (1966-1970 Comp.), and by Exec.Order No. 12086, 3 CFR 230 (1979).
Executive Order No. 11246, as amended, requires all applicants for federal contracts to refrain from employment discrimination and to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." § 202(1), 3 CFR 685 (1966-1970 Comp.), note following 42 U.S.C. § 2000e. The Executive Order empowers the Secretary of Labor to issue rules and regulations necessary and appropriate to achieve its purpose. He, in turn, has delegated most enforcement duties to the OFCC. See 41 CFR § 60-20.1 et seq., § 60-2.24 (1978).
The affirmative action program mandated by 41 CFR § 60-2 (Revised Order No. 4) for nonconstruction contractors requires a "utilization" study to determine minority representation in the work force. Goals for hiring and promotion must be set to overcome any "underutilization" found to exist.
The OFCC employs the "power of the purse" to coerce acceptance of its affirmative action plans. Indeed, in this litigation, "the district court found that the 1974 collective bargaining agreement reflected less of a desire on Kaiser's part to train black craft workers than a self-interest in satisfying the OFCC in order to retain lucrative government contracts." 563 F.2d 216, 226 (CA5 1977).
3
The pertinent portions of the collective-bargaining agreement provide:
"It is further agreed that the Joint Committee will specifically review the minority representation in the existing Trade, Craft and Assigned Main-
tenance classifications, in the plants set forth below, and, where necessary, establish certain goals and time tables in order to achieve a desired minority ratio:
"[Gramercy Works listed, among others]
"As apprentice and craft jobs are to be filled, the contractual selection criteria shall be applied in reaching such goals; at a minimum, not less than one minority employee will enter for every non-minority employee entering until the goal is reached unless at a particular time there are insufficient available qualified minority candidates. . . .
* * * * *
"The term 'minority' as used herein shall be as defined in EEOC Reporting Requirements." 415 F.Supp. 761, 763 (ED La.1976).
The "Joint Committee" subsequently entered into a "Memorandum of Understanding" establishing a goal of 39% as the percentage of blacks that must be represented in each "craft family" at Kaiser's Gramercy plant. Id., at 764. The goal of 39% minority representation was based on the percentage of minority workers available in the Gramercy area.
Contrary to the Court's assertion, it is not at all clear that Kaiser's admission quota is a "temporary measure . . . not intended to maintain racial balance." Ante, at 208. Dennis E. English, industrial relations superintendent at the Gramercy plant, testified at trial:
"Once the goal is reached of 39 percent, or whatever the figure will be down the road, I think it's subject to change, once the goal is reached in each of the craft families, at that time, we will then revert to a ratio of what that percentage is, if it remains at 39 percent and we attain 39 percent someday, we will then continue placing trainees in the program at that percentage. The idea, again, being to have a minority representation in the plant that is equal to that representation in the community work force population." App. 69.
4
In addition to the April programs, the company offered three more training programs in 1974 with a total of four positions available. Two white and two black employees were selected for the programs, which were for "Air Conditioning Repairman" (one position), "Carpenter-Painter" (two positions), and "Insulator" (one position). Weber sought to bid for the insulator trainee position, but he was not selected because that job was reserved for the most senior qualified black employee. Id., at 46.
5
The class was defined to include the following employees:
"All persons employed by Kaiser Aluminum & Chemical Corporation at its Gramercy, Louisiana, works who are members of the United Steelworkers of America, AFL-CIO Local 5702, who are not members of a minority group, and who have applied for or were eligible to apply for on-the-job training programs since February 1, 1974." 415 F.Supp., at 763.
6
In upholding the District Court's injunction, the Court of Appeals affirmed the District Court's finding that Kaiser had not been guilty of any past discriminatory hiring or promotion at its Gramercy plant. The court thus concluded that this finding removed the instant litigation from this Court's line of "remedy" decisions authorizing fictional seniority in order to place proved victims of discrimination in as good a position as they would have enjoyed absent the discriminatory hiring practices. See Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). "In the absence of prior discrimination," the Court of Appeals observed, "a racial quota loses its character as an equitable remedy and must be banned as an unlawful racial preference prohibited by Title VII, §§ 703(a) and (d). Title VII outlaws preferences for any group, minority or majority, if based on race or other impermissible classifications, but it does not outlaw preferences favoring victims of discrimination." 563 F.2d, at 224 (em-
phasis in original). Nor was the Court of Appeals moved by the claim that Kaiser's discriminatory admission quota is justified to correct a lack of training of Negroes due to past societal discrimination: "Whatever other effects societal discrimination may have, it has had—by the specific finding of the court below—no effect on the seniority of any party here." Id., at 226 (emphasis in original). Finally, the Court of Appeals rejected the argument that Kaiser's admission quota does not violate Title VII because it is sanctioned, indeed compelled, by Exec.Order No. 11246 and regulations issued by the OFCC mandating affirmative action by all Government contractors. See n. 2, supra. Citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), the court concluded that "[i]f Executive Order 11246 mandates a racial quota for admission to on-the-job training by Kaiser, in the absence of any prior hiring or promotion discrimination, the Executive Order must fall before this direct congressional prohibition [of § 703(d)]." 563 F.2d, at 227 (emphasis in original).
Judge Wisdom, in dissent, argued that "[i]f an affirmative action plan, adopted in a collective bargaining agreement, is a reasonable remedy for an arguable violation of Title VII, it should be upheld." Id., at 230. The United States, in its brief before this Court, and Mr. Justice BLACKMUN, ante, at 200, largely adopt Judge Wisdom's theory, which apparently rests on the conclusion that an employer is free to correct arguable discrimination against his black employees by adopting measures that he knows will discriminate against his white employees.
7
Section 703(a)(1) provides the third express prohibition in Title VII of Kaiser's discriminatory admission quota:
"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).
8
The full text of § 703(j), 78 Stat. 257, 42 U.S.C. § 2000e-2(j), provides as follows:
"Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area."
9
"If the words are plain, they give meaning to the act, and it is neither the duty nor the privilege of the courts to enter speculative fields in search of a different meaning.
". . . [W]hen words are free from doubt they must be taken as the final expression of the legislative intent, and are not to be added to or subtracted from by considerations drawn . . . from any extraneous source." Caminetti v. United States, 242 U.S. 470, 490, 37 S.Ct. 192, 196, 61 L.Ed. 442 (1917).
10
In holding that Title VII cannot be interpreted to prohibit use of Kaiser's racially discriminatory admission quota, the Court reasons that it would be "ironic" if a law inspired by the history of racial discrimination in employment against blacks forbade employers from voluntarily discriminating against whites in favor of blacks. I see no irony in a law that prohibits all voluntary racial discrimination, even discrimination directed at whites in favor of blacks. The evil inherent in discrimination against Negroes is that it is based on an immutable characteristic, utterly irrelevant to employment decisions. The characteristic becomes no less immutable and irrelevant, and discrimination based thereon becomes no less evil, simply because the person excluded is a member of one race rather than another. Far from ironic, I find a prohibition on all preferential treatment based on race as elementary and fundamental as the principle that "two wrongs do not make a right."
11
The only shred of legislative history cited by the Court in support of the proposition that "Congress did not intend wholly to prohibit private and voluntary affirmative action efforts," ante, at 203, is the following excerpt from the Judiciary Committee Report accompanying the civil rights bill reported to the House:
"No bill can or should lay claim to eliminating all of the causes and consequences of racial and other types of discrimination against minorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination." H.R.Rep.No.914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963), U.S.Code Cong. & Admin.News 1964, p. 2393 (hereinafter H.R.Rep.), quoted ante, at 203-204.
The Court seizes on the italicized language to support its conclusion that Congress did not intend to prohibit voluntary imposition of racially discriminatory employment quotas. The Court, however, stops too short in its reading of the House Report. The words immediately following the material excerpted by the Court are as follows:
"It is, however, possible and necessary for the Congress to enact legislation which prohibits and provides the means of terminating the most serious types of discrimination. This H.R. 7152, as amended, would achieve in a number of related areas. It would reduce discriminatory obstacles to the exercise of the right to vote and provide means of expediting the vindication of that right. It would make it possible to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public. It would guarantee that there will be no discrimination upon recipients of Federal financial assistance. It would prohibit discrimination in employment, and
provide means to expedite termination of discrimination in public education. It would open additional avenues to deal with redress of denials of equal protection of the laws on account of race, color, religion, or national origin by State or local authorities." H.R.Rep., pt. 1 p. 18 (emphasis added).
When thus read in context, the meaning of the italicized language in the Court's excerpt of the House Report becomes clear. By dealing with "the most serious types of discrimination," such as discrimination in voting, public accommodations, employment, etc., H.R. 7152 would hopefully inspire "voluntary or local resolution of other forms of discrimination," that is, forms other than discrimination in voting, public accommodations, employment, etc.
One can also infer from the House Report that the Judiciary Committee hoped that federal legislation would inspire voluntary elimination of discrimination against minority groups other than those protected under the bill, perhaps the aged and handicapped to name just two. In any event, the House Report does not support the Court's proposition that Congress, by banning racial discrimination in employment, intended to permit racial discrimination in employment.
Thus, examination of the House Judiciary Committee's report reveals that the Court's interpretation of Title VII, far from being compelled by the Act's legislative history, is utterly without support in that legislative history. Indeed, as demonstrated in Part III, infra, the Court's interpretation of Title VII is totally refuted by the Act's legislative history.
12
One example has particular relevance to the instant litigation:
"Under the power granted in this bill, if a carpenters' hiring hall, say, had 20 men awaiting call, the first 10 in seniority being white carpenters, the union could be forced to pass them over in favor of carpenters beneath them in seniority but of the stipulated race. And if the union roster did not contain the names of the carpenters of the race needed to 'racially balance' the job, the union agent must, then, go into the street and recruit members of the stipulated race in sufficient number to comply with Federal orders, else his local could be held in violation of Federal law." H.R.Rep., pt. 1, p. 71. U.S.Code Cong. & Admin.News 1964, p. 2440.
From this and other examples, the Minority Report concluded: "That this is in fact, a not too subtle system of racism-in-reverse cannot be successfully denied." Id., at 73, U.S.Code Cong. & Admin.News 1964, p. 2441.
Obviously responding to the Minority Report's charge that federal agencies, particularly the Equal Employment Opportunity Commission would equate "discrimination" with "racial imbalance," the Republican sponsors of the bill on the Judiciary Committee stated in a separate Report:
"It must also be stressed that the Commission must confine its activities to correcting abuse, not promoting equality with mathematical certainty. In this regard, nothing in the title permits a person to demand employment. . . . Internal affairs of employers and labor organizations must not be interfered with except to the limited extent that correction is required in discrimination practices. Its primary task is to make certain that the channels of employment are open to persons regardless of their race and that jobs in companies or membership in unions are strictly filled on the basis of qualification." Id., pt. 2, p. 29.
The Republican supporters of the bill concluded their remarks on Title VII by declaring that "[a]ll vestiges of inequality based solely on race must be removed . . . ." Id., at 30.
13
Representative Lindsay had this to say:
"This legislation . . . does not, as has been suggested heretofore both on and off the floor, force acceptance of people in . . . jobs . . . because they are Negro. It does not impose quotas or any special privileges of seniority or acceptance. There is nothing whatever in this bill about racial balance as appears so frequently in the minority report of the Committee.
"What the bill does do is prohibit discrimination because of race . . . ." 110 Cong.Rec. 1540 (1964).
Representative Minish added: "Under title VII, employment will be on the basis of merit, not of race. This means that no quota system will be set up, no one will be forced to hire incompetent help because of race or religion, and no one will be given a vested right to demand employment for a certain job." Id., at 1600. Representative Goodell, answering the charge that Title VII would be interpreted "to requir[e] a racial balance," id., at 2557, responded: "There is nothing here as a matter of legislative history that would require racial balancing. . . . We are not talking about a union having to balance its membership or an employer having to balance the number of employees. There is no quota involved. It is a matter of an individual's rights having been violated, charges having been brought, investigation carried out and conciliation having been attempted and then proof in court that there was discrimination and denial of rights on the basis of race or color." Id., at 2558. After H.R. 7152 had been passed and sent to the Senate, Republican supporters of the bill in the House prepared an interpretative memorandum making clear that "title VII does not permit the ordering of racial quotas in businesses or unions and does not permit interferences with seniority rights of employees or union members." Id., at 6566 (emphasis added).
14
Eleven Members did not vote.
15
Continuing with their exchange, Senators Hill and Ervin broached the subject of racial balance:
"Mr. ERVIN. So if the Commissioner . . . should be joined by another member of the Commission in the finding that the employer had too high a percentage, in the Commission's judgment, of persons of the Caucasian race working in his business, they could make the employer either hire, in addition to his present employees, an extra number of Negro employees, or compel him to fire employees of the Caucasian race in order to make a place for Negro employees?
"Mr. HILL. The Senator is correct, although the employer might not need the additional employees, and although they might bring his business into bankruptcy." 110 Cong.Rec. 4764 (1964).
This view was reiterated by Senator Robertson:
"It is contemplated by this title that the percentage of colored and white population in a community shall be in similar percentages in every business establishment that employs over 25 persons. Thus, if there were 10,000 colored persons in a city and 15,000 whites, an employer with 25 employees would, in order to overcome racial imbalance, be required to have 10
colored personnel and 15 white. And if by chance that employer had 20 colored employees, he would have to fire 10 of them in order to rectify the situation. Of course, this works the other way around where whites would be fired." Id., at 5092.
Senator Humphrey interrupted Senator Robertson's discussion, responding: "The bill does not require that at all. If it did, I would vote against it. . . . There is no percentage quota." Ibid.
16
This view was reiterated two days later in the "Bipartisan Civil Rights Newsletter" distributed to the Senate on March 19 by supporters of H.R. 7152:
"3. Defining discrimination: Critics of the civil rights bill have charged that the word 'discrimination' is left undefined in the bill and therefore the door is open for interpretation of this term according to 'whim or caprice.' . . .
* * * * *
"There is no sound basis for uncertainty about the meaning of discrimination in the context of the civil rights bill. It means a distinction in treatment given to different individuals because of their different race, religion, or national origin." Id., at 7477.
17
Earlier in the debate, Senator Humphrey had introduced a newspaper article quoting the answers of a Justice Department "expert" to the "10 most commonly expressed objections to [Title VII]." Insofar as is pertinent here, the article stated:
"Objection: The law would empower Federal 'inspectors' to require employers to hire by race. White people would be fired to make room for Negroes. Seniority rights would be destroyed. . . .
"Reply: The bill requires no such thing. The five-member Equal Employment Opportunity Commission that would be created would have no powers to order anything. . . .
". . . The bill would not authorize anyone to order hiring or firing to achieve racial or religious balance. An employer will remain wholly free to hire on the basis of his needs and of the job candidate's qualifications. What is prohibited is the refusal to hire someone because of his race or religion. Similarly, the law will have no effect on union seniority rights." Id., at 5094.
18
In obvious reference to the charge that the word "discrimination" in Title VII would be interpreted by federal agencies to mean the absence of racial balance, the interpretative memorandum stated:
"[Section 703] prohibits discrimination in employment because of race, color, religion, sex, or national origin. It has been suggested that the concept of discrimination is vague. In fact it is clear and simple and has no hidden meanings. To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by [Section 703] are those which are based on any five of the forbidden criteria: race, color, religion, sex, and national origin." Id., at 7213 (emphasis added).
Earlier in his speech, Senator Clark introduced a memorandum prepared at his request by the Justice Department with the purpose of responding to criticisms of Title VII leveled by opponents of the measure, particularly Senator Hill. With regard to racial balance, the Justice Department stated:
"Finally, it has been asserted that title VII would impose a requirement for 'racial balance.' This is incorrect. There is no provision . . . in title VII . . . that requires or authorizes any Federal agency or Federal court to require preferential treatment for any individual or any group for the purpose of achieving racial balance. . . . No employer is required to maintain any ratio of Negroes to whites . . .. On the contrary, any deliberate attempt to maintain a given balance would almost certainly run afoul of title VII because it would involve a failure or refusal to hire some individual because of his race, color, religion, sex, or national origin. What title VII seeks to accomplish, what the civil rights bill seeks to accomplish is equal treatment for all." Id., at 7207.
19
A Justice Department memorandum earlier introduced by Senator Clark, see n. 18, supra, expressed the same view regarding Title VII's impact on seniority rights of employees:
"Title VII would have no effect on seniority rights existing at the time it takes effect. . . . This would be true even in the case where owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes. . . . [A]ssuming that seniority rights were built up over a period of time during which Negroes were not hired, these rights would not be set aside by the taking effect of title VII. Employers and labor organizations would simply be under a duty not to discriminate against Negroes because of their race." 110 Cong.Rec. 7207 (1964).
The interpretation of Title VII contained in the memoranda introduced by Senator Clark totally refutes the Court's implied suggestion that Title VII would prohibit an employer from discriminating on the basis of race in order to maintain a racial balance in his work force, but would permit him to do so in order to achieve racial balance. See ante, at 208, and n. 7.
The maintain-achieve distinction is analytically indefensible in any event.
Apparently, the Court is saying that an employer is free to achieve a racially balanced work force by discriminating against whites, but that once he has reached his goal, he is no longer free to discriminate in order to maintain that racial balance. In other words, once Kaiser reaches its goal of 39% minority representation in craft positions at the Gramercy plant, it can no longer consider race in admitting employees into its on-the-job training programs, even if the programs become as "all-white" as they were in April 1974.
Obviously, the Court is driven to this illogical position by the glaring statement, quoted in text, of Senators Clark and case that "any deliberate attempt to maintain a racial balance . . . would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race." 110 Cong.Rec. 7213 (1964) (emphasis added). Achieving a certain racial balance, however, no less than maintaining such a balance, would require an employer to hire or to refuse to hire on the basis of race. Further the Court's own conclusion that Title VII's legislative history, coupled with the wording of § 703(j), evinces a congressional intent to leave employers free to employ "private, voluntary, race-conscious affirmative action plans," ante, at 208, is inconsistent with its maintain-achieve distinction. If Congress' primary purpose in enacting Title VII was to open employment opportunities previously closed to Negroes, it would seem to make little difference whether the employer opening those opportunities was achieving or maintaining a certain racial balance in his work force. Likewise, if § 703(j) evinces Congress' intent to permit imposition of race-conscious affirmative action plans, it would seem to make little difference whether the plan was adopted to achieve or maintain the desired racial balance.
20
Senator Robertson's observations prompted Senator Humphrey to make the following offer: "If the Senator can find in title VII . . . any language which provides that an employer will have to hire on the basis of percentage or quota related to color . . . I will start eating the pages one after another, because it is not in there." 110 Cong.Rec. 7420 (1964).
21
Referring to the EEOC, Senator Smathers argued that Title VII "would make possible the creation of a Federal bureaucracy which would, in the final analysis, cause a man to hire someone whom he did not want to hire, not on the basis of ability, but on the basis of religion, color, or creed . . .." Id., at 8500. Senator Sparkman's comments were to the same effect. See n. 23, infra. Several other opponents of Title VII expressed similar views. See 110 Cong.Rec. 9034-9035 (1964) (remarks of Sens. Stennis and Tower); id., at 9943-9944 (remarks of Sens. Long and Talmadge); id., at 10513 (remarks of Sen. Robertson).
22
Several other proponents of H.R. 7152 commented briefly on Title VII, observing that it did not authorize the imposition of quotas to correct racial imbalance. See id., at 9113 (remarks of Sen. Keating); id., at 9881-9882 (remarks of Sen. Allott); id., at 10520 (remarks of Sen. Carlson); id., at 11768 (remarks of Sen. McGovern).
23
The Court cites the remarks of Senator Sparkman in support of its suggestion that opponents had argued that employers would take it upon themselves to balance their work forces by granting preferential treatment to racial minorities. In fact, Senator Sparkman's comments accurately reflected the opposition's "party line." He argued that while the language of Title VII does not expressly require imposition of racial quotas (no one, of course, had ever argued to the contrary), the law would be applied by
federal agencies in such a way that "some kind of quota system will be used." Id., at 8619. Senator Sparkman's view is reflected in the following exchange with Senator Stennis:
"Mr. SPARKMAN. At any rate, when the Government agent came to interview an employer who had 100 persons in his employ, the first question would be, 'How many Negroes are you employing?' Suppose the population of that area was 20 percent Negro. Immediately the agent would say, 'You should have at least 20 Negroes in your employ, and they should be distributed among your supervisory personnel and in all the other categories'; and the agent would insist that that be done immediately.
* * * * *
"Mr. STENNIS. . . .
"The Senator from Alabama has made very clear his point about employment on the quota basis. Would not the same basis be applied to promotions?
"Mr. SPARKMAN. Certainly it would. As I have said, when the Federal agents came to check on the situation in a small business which had 100 employees, and when the agents said to the employer, 'You must hire 20 Negroes, and some of them must be employed in supervisory capacities,' and so forth, and so on, the agent would also say, 'And you must promote the Negroes, too, in order to distribute them evenly among the various ranks of your employees.' " Id., at 8618 (emphasis added).
Later in his remarks, Senator Sparkman stated: "Certainly the suggestion will be made to a small business that may have a small Government contract . . . that if it does not carry out the suggestion that has been made to the company by an inspector, its Government contract will not be renewed." Ibid. Except for the size of the business, Senator Sparkman has seen his prophecy fulfilled in this case.
24
Compare § 703(a), 42 U.S.C. § 2000e-2(a) ("It shall be an unlawful employment practice for an employer . . ."), with § 703(j), 42 U.S.C. § 2000e-2(j) ("Nothing contained in this subchapter shall be interpreted . . .").
25
In support of its reading of § 703(j), the Court argues that "a prohibition against all voluntary, race-conscious, affirmative action efforts would disserve" the important policy, expressed in the House Report on H.R. 7152, that Title VII leave "management prerogatives, and union freedoms . . . undisturbed to the greatest extent possible." H.R.Rep., pt. 2, p. 29, quoted ante, at 206. The Court thus concludes that "Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious affirmative action." Ante, at 207.
The sentences in the House Report immediately following the statement quoted by the Court, however, belie the Court's conclusion:
"Internal affairs of employers and labor organizations must not be interfered with except to the limited extent that correction is required in discrimination practices. Its primary task is to make certain that the channels of employment are open to persons regardless of their race and that jobs in companies or membership in unions are strictly filled on the basis of qualification." H.R.Rep., pt. 2, p. 29 (emphasis added).
Thus, the House Report invoked by the Court is perfectly consistent with the countless observations elsewhere in Title VII's voluminous legislative history that employers are free to make employment decisions without governmental interference, so long as those decisions are made without regard to race. The whole purpose of Title VII was to deprive employers of their "traditional business freedom" to discriminate on the basis of race. In this case, the "channels of employment" at Kaiser were hardly "open" to Brian Weber.
26
Some of the opponents still were not satisfied. For example, Senator Ervin of North Carolina continued to maintain that Title VII "would give the Federal Government the power to go into any business or industry in the United States . . . and tell the operator of that business whom he had to hire." 110 Cong.Rec. 13077 (1964). Senators Russell and Byrd remained of the view that pressures exerted by federal agencies would compel employers "to give priority definitely and almost completely, in most instances, to the members of the minority group." Id., at 13150 (remarks of Sen. Russell).
27
Senator Muskie also addressed the charge that federal agencies would equate "discrimination," as that word is used in Title VII, with "racial balance":
"[S]ome of the opposition to this title has been based upon its alleged vagueness [and] its failure to define just what is meant by discrimination . . . . I submit that, on either count, the opposition is not well taken. Discrimination in this bill means just what it means anywhere: a distinction in treatment given to different individuals because of their race . . . [a]nd, as a practical matter, we all know what constitutes racial discrimination." Id., at 12617.
Senator Muskie then reviewed the various provisions of § 703, concluding that they "provide a clear and definitive indication of the type of practice which this title seeks to eliminate. Any serious doubts concerning [Title VII's] application would, it seems to me, stem at least partially from the predisposition of the person expressing such doubt." 110 Cong.Rec. 12618 (1964).
28
The Court states that congressional comments regarding § 703(j) "were all to the effect that employers would not be required to institute preferential quotas to avoid Title VII liability." Ante, at 207 n. 7 (emphasis in original). Senator Saltonstall's statement that Title VII of the Dirksen-Mansfield substitute, which contained § 703(j), "specifically prohibits" preferential treatment for any racial group disproves the Court's observation. Further, in a major statement explaining the purpose of the Dirksen-Mansfield substitute amendments, Senator Humphrey said of § 703(j): "This subsection does not represent any change in the substance of the title. It does state clearly and accurately what we have maintained all along about the bill's intent and meaning." 110 Cong.Rec. 12723 (1964). What Senator Humphrey had "maintained all along about the bill's intent and meaning," was that it neither required nor permitted imposition of preferential quotas to eliminate racial imbalances.
29
The complete exchange between Senators Cotton and Curtis, insofar as is pertinent here, is as follows:
"Mr. COTTON. . . .
* * * * *
"I would assume that anyone who will administer the laws in future years will not discriminate between the races. If I were a Negro, and by dint of education, training, and hard work I had amassed enough property as a Negro so that I had a business of my own—and there are many of them in this country—and I felt that, having made a success of it myself, I wanted to help people of my own race to step up as I had stepped up, I think I should have the right to do so. I think I should have the right to employ Negroes in my own establishment and put out a helping hand to them if I so desired. I do not believe that anyone in Washington should be permitted to come in and say, 'You cannot employ all Negroes. You must have some Poles. You must have some Yankees.' . . .
* * * * *
"Mr. CURTIS. . . .
"The Senator made reference to the fact that a member of a minority race might become an employer and should have a right to employ members of his race in order to give them opportunity. Would not the same thing follow, that a member of a majority race might wish to employ almost entirely, or entirely, members of a minority race in order to enhance their opportunity? And is it not true that under title VII as written, that would constitute discrimination?
"Mr. COTTON. It certainly would, if someone complained about it and felt that he had been deprived of a job, and that it had been given to a member of a minority race because of his race and not because of some other reason." Id., at 13086.
This colloquy refutes the Court's statement that "[t]here was no suggestion after the adoption of § 703(j) that wholly voluntary, race-conscious, affirmative action efforts would in themselves constitute a violation of Title VII." Ante, at 207 n. 7.
30
Only three Congressmen spoke to the issue of racial quotas during the House's debate on the Senate amendments. Representative Lindsay stated: "[W]e wish to emphasize also that this bill does not require quotas, racial balance, or any of the other things that the opponents have been saying about it." 110 Cong.Rec. 15876 (1964). Representative McCulloch echoed this understanding, remarking that "[t]he bill does not permit the Federal Government to require an employer or union to hire or accept for membership a quota of persons from any particular minority group." Id., at 15893. The remarks of Representative MacGregor, quoted by the Court, ante, at 207-208, n. 7, are singularly unhelpful. He merely noted that by adding § 703(j) to Title VII of the House bill, "[t]he Senate . . . spelled out [the House's] intentions more specifically." 110 Cong.Rec. 15893 (1964).
| 12
|
443 U.S. 256
99 S.Ct. 2753
61 L.Ed.2d 521
Stanley D. EDMONDS, Petitioner,v.COMPAGNIE GENERALE TRANSATLANTIQUE
No. 78-479.
Argued March 19, 1979.
Decided June 27, 1979.
Syllabus
Petitioner longshoreman, while employed by a stevedoring concern that respondent shipowner had engaged to unload cargo from its vessel, was injured in the course of that work, and received benefits for the injury from his employer under the Longshoremen's and Harbor Workers' Compensation Act (Act). Petitioner also brought this negligence action against respondent in Federal District Court, wherein the jury determined that petitioner was responsible for 10% of the total negligence resulting in his injury, that the stevedore's fault, through a coemployee's negligence, contributed 70%, and that respondent was accountable for 20%. Following established maritime law, the District Court reduced the award to petitioner by the 10% attributed to his own negligence but refused further to reduce the award against respondent in proportion to the fault of the stevedore-employer. The Court of Appeals reversed, holding that the 1972 Amendments to the Act had altered the traditional admiralty rule by making the shipowner liable only for that share of the total damages equivalent to the ratio of its fault to the total fault.
Held:
1. Under the 1972 Amendments to the Act, Congress did not intend to change the judicially created admiralty rule that the shipowner can be made to pay all the damages not due to the plaintiff's own negligence by imposing a proportionate-fault rule. Pp. 263-271.
(a) There is no conflict between the provisions of the Amendments that (1) in the event of injury to a person covered by the Act "caused by the negligence of a vessel," such person may bring an action against the vessel as a third party, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void, and (2) if such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was "caused by the negligence of persons engaged in providing stevedoring services to the vessel." The first provision addresses the recurring situation, such as in this case, where the party injured by the vessel's negligence is a longshoreman employed by a stevedoring concern, and does not purport to modify the traditional admiralty rule. The second provision applies only to the less familiar arrangement where the ship is its own stevedore, and is to construed as permitting a third-party suit against the shipowner-stevedore when negligence in its nonstevedoring capacity contributes to the injury. Pp. 263-266.
(b) The legislative history does not support the Court of Appeals' interpretation of the statute, which modifies the longshoreman's pre-existing rights against the negligent vessel. Pp. 266-268.
(c) While some inequity appears inevitable in the present statutory scheme, and while the Court of Appeals' proportionate-fault rule may remove some of the inequities, nevertheless it creates others and appears to shift some burdens to the longshoreman. There is nothing to indicate and it will not be presumed that Congress intended to place the burden of the inequity on the longshoreman whom the Act seeks to protect. Pp. 268-271.
2. Nor will this Court change the traditional rule so as to make the vessel liable only for the damages in proportion to its own negligence. By now changing what Congress understood to be the law and did not itself wish to modify, this Court might knock out of kilter the delicate balance effected by Congress concerning the liability of vessels, as third parties, to pay damages to longshoremen who are injured while engaged in stevedoring operations. This Court should stay its hand in these circumstances. Pp. 271-273.
4 Cir., 577 F.2d 1153, reversed and remanded.
Calvin W. Breit, Norfolk, Va., for petitioner.
Charles F. Tucker, Norfolk, Va., for respondent.
Mr. Justice WHITE, delivered the opinion of the Court.
1
On March 3, 1974, the S.S. Atlantic Cognac, a containership owned by respondent, arrived at the Portsmouth Marine Terminal, Va. Petitioner, a longshoreman, was then employed by the Nacirema Operating Co., a stevedoring concern that the shipowner had engaged to unload cargo from the vessel. The longshoreman was injured in the course of that work, and he received benefits for that injury from his employer under the Longshoremen's and Harbor Workers' Compensation Act. 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq. In addition, the longshoreman brought this negligence action against the shipowner in Federal District Court.
2
A jury determined that the longshoreman had suffered total damages of $100,000, that he was responsible for 10% of the total negligence resulting in his injury, that the stevedore's fault, through a co-employee's negligence, contributed 70%, and that the shipowner was accountable for 20%.1 Following an established principle of maritime law, the District Court reduced the award to the longshoreman by the 10% attributed to his own negligence.2 But also in accordance with maritime law, and the common law as well, the court refused further to reduce the award against the shipowner in proportion to the fault of the employer.
3
The United States Court of Appeals for the Fourth Circuit, with two judges dissenting, reversed en banc, holding that the 1972 Amendments to the Act, 86 Stat. 1251, had altered the traditional admiralty rule by making the shipowner liable only for that share of the total damages equivalent to the ratio of its fault to the total fault. 577 F.2d 1153, 1155-1156 (1978).3 Other Courts of Appeals have reached the contrary conclusion.4 We granted certiorari to resolve this conflict, 439 U.S. 952, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978), and, once again,5 we have before us a question of the meaning of the 1972 Amendments.
4
* Admiralty law is judge-made law to a great extent, United States v. Reliable Transfer Co., 421 U.S. 397, 409, 95 S.Ct. 1708, 1714, 44 L.Ed.2d 251 (1975); Fitzgerald v. United States Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963), and a longshoreman's maritime tort action against a shipowner was recognized long before the 1972 Amendments, see Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 413-414, 74 S.Ct. 202, 207, 98 L.Ed. 143 (1953), as it has been since.6 As that law had evolved by 1972, a longshoreman's award in a suit against a negligent shipowner would be reduced by that portion of the damages assignable to the longshoreman's own negligence; but, as a matter of maritime tort law, the shipowner would be responsible to the longshoreman in full for the remainder, even if the stevedore's negligence contributed to the injuries.7 This latter rule is in accord with the common law, which allows an injured party to sue a tortfeasor for the full amount of damages for an indivisible injury that the tortfeasor's negligence was a substantial factor in causing, even if the concurrent negligence of others contributed to the incident.8
5
The problem we face today, as was true of similar problems the Court has dealt with in the past, is complicated by the overlap of loss-allocating mechanisms that are guided by somewhat inconsistent principles. The liability of the ship to the longshoreman is determined by a combination of judge-made and statutory law and, in the present context, depends on a showing of negligence or some other culpability. The longshoreman-victim, however, and his stevedore-employer—also a tortfeasor in this case are participants in a workers' compensation scheme that affords benefits to the longshoreman regardless of the employer's fault and provides that the stevedore's only liability for the longshoreman's injury is to the longshoreman in the amount specified in the statute.9 33 U.S.C. § 905. We have more than once attempted to reconcile these systems.
6
We first held that the shipowner could not circumvent the exclusive-remedy provision by obtaining contribution from the concurrent tortfeasor employer. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952); Pope & Talbot, Inc. v. Hawn, supra; see Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 111-113, 94 S.Ct. 2174, 2177-2178, 40 L.Ed.2d 694 (1974). As a matter of maritime law, we also held that a longshoreman working on a vessel was entitled to the warranty of seaworthiness, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94, 66 S.Ct. 872, 877, 90 L.Ed. 1099 (1946), which amounted to liability without fault for most onboard injuries.10 However, we went on to hold, as a matter of contract law, that the shipowner could obtain from the stevedore an express or implied warranty of workmanlike service that might result in indemnification of the shipowner for its liability to the longshoreman. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).
7
Against this background, Congress acted in 1972, among other things,11 to eliminate the shipowner's liability to the longshoreman for unseaworthiness and the stevedore's liability to the shipowner for unworkmanlike service resulting in injury to the longshoreman—in other words, to overrule Sieracki and Ryan. See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 260-261, and n. 18, 97 S.Ct. 2348, 2355-2356, and n. 18, 53 L.Ed.2d 320 (1977); Cooper Stevedoring Co. v. Fritz Kopke, Inc., supra, 417 U.S., at 113 n. 6, 94 S.Ct., at 2178 n. 6. Though admitting that nothing in either the statute or its history expressly indicates that Congress intended to modify as well the existing rules governing the longshoreman's maritime negligence suit against the shipowner by diminishing damages recoverable from the latter on the basis of the proportionate fault of the nonparty stevedore, 577 F.2d, at 1155, and n. 2, the en banc Court of Appeals found that such a result was necessary to reconcile two sentences added in 1972 as part of 33 U.S.C. § 905(b). The two sentences state:
8
"In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel." 33 U.S.C. § 905(b).
9
The Court of Appeals described the perceived conflict in this fashion:
10
"The first sentence says that if the injury is caused by the negligence of a vessel the longshoreman may recover, but the second sentence says he may not recover anything of the ship if his injury was caused by the negligence of a person providing stevedoring services. The sentences are irreconcilable if read to mean that any negligence on the part of the ship will warrant recovery while any negligence on the part of the stevedore will defeat it. They may be harmonized only if read in apportioned terms." 577 F.2d, at 1155.
11
For a number of reasons, we are unpersuaded that Congress intended to upset a "long-established and familiar principl[e]" of maritime law by imposing a proportionate-fault rule. Cf. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952).
A.
12
In the first place, the conflict seen by the Court of Appeals is largely one of its own creation. Both sides admit that each sentence may be read so as not to conflict with the other. The first sentence addresses the recurring situation, reflected by the facts in this case, where the party injured by the negligence of the vessel is a longshoreman employed by a stevedoring concern. In these circumstances, the longshoreman may sue the vessel as a third party, but his employer, the stevedore, is not to be liable directly or indirectly for any damages that may be recovered. This first sentence overrules Ryan and prevents the vessel from recouping from the stevedore any of the damages that the longshoreman may recover from the vessel. But the sentence neither expressly nor implicitly purports to overrule or modify the traditional rule that the longshoreman may recover the total amount of his damages from the vessel if the latter's negligence is a contributing cause of his injury, even if the stevedore, whose limited liability is fixed by statute, is partly to blame.
13
The second sentence of the paragraph is expressly addressed to the different and less familiar arrangement where the injured longshoreman loading or unloading the ship is employed by the vessel itself, not by a separate stevedoring company—in short, to the situation where the ship is its own stevedore.12 In this situation, the second sentence places some limitations on suits against the vessel for injuries caused during its stevedoring operations.13 Whatever these limitations may be, there is no conflict between the two sentences, and one arises only if the second sentence is read, as the Court of Appeals read it, as applying to all injured longshoremen, whether employed by the ship or by an independent stevedore. Nothing in the legislative history advises this construction of the sentence,14 and we see no reason to depart from the language of the statute in this respect.
14
Respondent insists that, even though the two sentences may deal with different business arrangements, problems still arise. If under the first sentence a third-party suit against the vessel is authorized when any part of the negligence causing the injury is that of the vessel, it is argued that suit against the vessel under the second sentence should be barred when any part of the negligence causing the injury is that of a co-worker also providing stevedoring services to the vessel. Under this interpretation, the employee of the independent stevedore could recover from the ship where the stevedore was responsible for 99% of the negligence, though a ship's employee performing stevedoring services could not hold the vessel liable if his co-worker's negligence was the slightest cause of the injury.15 This is said to be preposterous and contrary to the legislative intent to treat the vessel that provides its own stevedoring services just like other shipowners when and if it negligently causes injury in its capacity as a shipowner and just like other stevedores when it negligently injures in the course of providing its own loading or unloading services.16
15
Aside from the fact that the problem suggested would arise only in the application of the second sentence, which is not involved in this case, the argument that the words "caused by the negligence of" in the two sentences must be given the same meaning and that they cannot have the meaning ascribed to them by petitioner's construction of the first sentence, logically leads to the conclusion that the injured longshoreman should never be able to bring suit against the vessel unless it is the sole cause of the injury. This is a doubly absurd conclusion. It is supported by no one, and to avoid it, it is necessary only to construe the second sentence to permit a third-party suit against the vessel providing its own loading and unloading services when negligence in its nonstevedoring capacity contributes to the injury. The second sentence means no more than that all longshoremen are to be treated the same whether their employer is an independent stevedore or a shipowner-stevedore and that all stevedores are to be treated the same whether they are independent or an arm of the shipowner itself.
16
This leaves the question of the measure of recovery against a shipowner, whether or not it is doing its own stevedoring, when as shipowner it is only partially responsible for the negligence, but we are quite unable to distill from the face of the obviously awkward wording of the two sentences any indication that Congress intended to modify the pre-existing rule that a longshoreman who is injured by the concurrent negligence of the stevedore and the ship may recover for the entire amount of his injuries from the ship.
B
17
The legislative history strongly counsels against the Court of Appeals' interpretation of the statute, which modifies the longshoreman's pre-existing rights against the negligent vessel. The reports and debates leading up to the 1972 Amendments contain not a word of this concept.17 This silence is most eloquent, for such reticence while contemplating an important and controversial change in existing law is unlikely.18 Moreover, the general statements appearing in the legislative history concerning § 905(b) are inconsistent with what respondent argues was in the back of the legislators' minds about this specific issue. The Committees repeatedly refer to the refusal to limit the shipowner's liability for negligence,19 which they felt left the vessel in the same position as a land-based third party whose negligence injures an employee.20 Because an employee generally may recover in full from a third-party concurrent tortfeasor,21 these statements are hardly indicative of an intent to modify the law in the respect found by the Court of Appeals. At the very least, one would expect some hint of a purpose to work such a change, but there was none.
18
The shipowner denies that the legislative history is so one-sided, relying upon statements that vessels "will not be chargeable with the negligence of the stevedore or [the] employees of the stevedore." S.Rep. 11; see 577 F.2d, at 1156 n. 2. But in context these declarations deal only with removal of the shipowner's liability under the warranty of seaworthiness for acts of the stevedore22—even nonnegligent ones.23
C
19
Finally, we note that the proportionate-fault rule adopted by the Court of Appeals itself produces consequences that we doubt Congress intended. It may remove some inequities, but it creates others and appears to shift some burdens to the longshoreman.
20
As we have said, § 905 permits the injured longshoreman to sue the vessel and exempts the employer from any liability to the vessel for any damages that may be recovered. Congress clearly contemplated that the employee be free to sue the third-party vessel, to prove negligence and causation on the vessel's part, and to have the total damages set by the court or jury without regard to the benefits he has received or to which he may be entitled under the Act. Furthermore, under the traditional rule, the employee may recover from the ship the entire amount of the damages so determined. If he recovers less than the statutory benefits, his employer is still liable for the statutory amount.
21
Under this arrangement, it is true that the ship will be liable for all of the damages found by the judge or jury; yet its negligence may have been only a minor cause of the injury. The stevedore-employer may have been predominantly responsible; yet its liability is limited by the Act, and if it has lien rights on the longshoreman's recovery it may be out-of-pocket even less.
22
Under the Court of Appeals' proportionate-fault rule, however, there will be many circumstances where the longshoreman will not be able to recover in any way the full amount of the damages determined in his suit against the vessel. If, for example, his damages are at least twice the benefits paid or payable under the Act and the ship is less than 50% at fault, the total of his statutory benefits plus the reduced recovery from the ship will not equal his total damages. More generally, it would appear that if the stevedore's proportionate fault is more than the proportion of compensation to actual damages, the longshoreman will always fall short of recovering the amount that the factfinder has determined is necessary to remedy his total injury, even though the diminution is due not to his fault, but to that of his employer.24
23
But the impact of the proportionate-fault rule on the longshoreman does not stop there. Under § 933(b), an administrative order for benefits operates as an assignment to the stevedore-employer of the longshoreman's rights against the third party unless the longshoreman sues within six months. And a corresponding judicially created lien in the employer's favor operates where the longshoreman himself sues.25 In the past, this lien has been for the benefits paid up to the amount of the recovery.26 And under § 933(c), which Congress left intact in 1972, where the stevedore-employer sues the vessel as statutory assignee it may retain from any recovery an amount equal in general to the expenses of the suit, the costs of medical services and supplies it provided the employee, all compensation benefits paid, the present value of benefits to be paid, plus one-fifth of whatever might remain. Under the Court of Appeals' proportionate-fault system, the longshoreman would get very little, if any, of the diminished recovery obtained by his employer. Indeed, unless the vessel's proportionate fault exceeded the ratio of compensation benefits to total damages, the longshoreman would receive nothing from the third-party action, and the negligent stevedore might recoup all the compensation benefits it had paid.
24
Some inequity appears inevitable in the present statutory scheme, but we find nothing to indicate and should not presume that Congress intended to place the burden of the inequity on the longshoreman whom the Act seeks to protect.27 Further, the 1972 Amendments make quite clear that "the employer shall not be liable to the vessel for such damages directly or indirectly," 33 U.S.C. § 905(b) (emphasis supplied),28 and that with the disappearance of the ship's contribution and indemnity right against the stevedore the latter should no longer have to appear routinely in suits between longshoreman and shipowner.29 Consequently, as we have done before, we must reject a "theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts . . . a remedial Act . . . ." Northeast Marine Terminal Co. v. Caputo, 432 U.S., at 278-279, 97 S.Ct., at 2365.
II
25
Of course, our conclusion that Congress did not intend to change the judicially created rule that the shipowner can be made to pay all the damages not due to the plaintiff's own negligence does not decide whether we are free to and should change that rule so as to make the vessel liable only for the damages in proportion to its own negligence. Indeed, some amici in support of respondent share the view that Congress did not change the rule but argue that this Court should do so. We disagree.
26
Though we recently acknowledged the sound arguments supporting division of damages between parties before the court on the basis of their comparative fault, see United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975),30 we are mindful that here we deal with an interface of statutory and judge-made law. In 1972 Congress aligned the rights and liabilities of stevedores, shipowners, and longshoremen in light of the rules of maritime law that it chose not to change.31 "One of the most controversial and difficult issues which [Congress was] required to resolve . . . concern[ed] the liability of vessels, as third parties, to pay damages to longshoremen who are injured while engaged in stevedoring operations." S.Rep. 8. By now changing what we have already established that Congress understood to be the law,32 and did not itself wish to modify, we might knock out of kilter this delicate balance. As our cases advise, we should stay our hand in these circumstances. Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S., at 112, 94 S.Ct., at 2177; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S., at 285-286, 72 S.Ct., at 279-280. Once Congress has relied upon conditions that the courts have created, we are not as free as we would otherwise be to change them. A change in the conditions would effectively alter the statute by causing it to reach different results than Congress envisioned. Indeed, Congress might have intended to adopt the existing maritime rule even for third-party actions under the Act that are not within the admiralty jurisdiction, though we need not and do not reach that issue today.
27
Accordingly, we reverse the judgment below and remand for proceedings consistent with this opinion.
28
It is so ordered.
29
Mr. Justice POWELL took no part in the consideration or decision of this case.
30
Mr. Justice BLACKMUN, with whom Mr. Justice MARSHALL and Mr. Justice STEVENS join, dissenting.
31
The jury in this case found that the shipowner, the stevedore, and the longshoreman were each partially responsible for the latter's (petitioner Stanley Edmonds) injury. A member of the ship's crew instructed Edmonds to remove a jack from the rear wheel of a large cargo container. As Edmonds went behind the container to remove the jack, another longshoreman backed a truck into the container, causing it to roll backwards and pin Edmonds against the bulkhead. The jury concluded that the shipowner, as the employer of the crewman, was 20% responsible for the accident; the stevedore, as the employer of the longshoreman driving the truck, was 70% responsible; and Edmonds himself was 10% responsible.
32
The Court holds that the shipowner, who was 20% negligent, must pay 90% of Edmonds' damages. Edmonds, because of his comparative negligence, must absorb 10% of the damages himself. But the stevedore, who, the jury determined, was 70% at fault, will recoup its statutory compensation payments out of the damages payable to Edmonds, and thus will go scot-free.1
33
The Court does not, and indeed could not, defend this result on grounds of reason or fairness. Today's ruling means that concurrently negligent stevedores will be insulated from the obligation to pay statutory workmen's compensation benefits, and thus will have inadequate incentives to provide a safe working environment for their employees. It also means that shipowners in effect will be held vicariously liable for the negligence of stevedores, and will have to pay damages far out of proportion to their degree of fault. Nor does the Court suggest that its holding is compelled by the language or legislative history of § 5(b) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b). The Court appears to advance two justifications for its decision: first, that principles of comparative negligence did not apply under the traditional law of admiralty, and Congress intended to preclude judicial modification of that law when it passed the 1972 Amendments to the LHWCA; and second, that a rule of comparative negligence would be unfair to injured longshoremen. Since I find both purported justifications wholly inadequate to support the Court's decision, I respectfully dissent.
34
* The Court begins with the proposition that, under the law maritime as it existed in 1972, the shipowner could not reduce its liability because of the comparative negligence of the stevedore: I am not entirely convinced. None of the decisions cited by the Court, ante, at 260 n. 7, stands for this proposition; the cases relied upon all concern the conceptually distinct problem—to which the Court has given varying answers—of whether there is a right of contribution among joint tort-feasors.2 I am willing to assume, however, for purposes of argument, that the Court has correctly stated the "traditional" admiralty rule.
35
The Court next states that Congress itself did not impose a rule of comparative negligence when it adopted § 905(b) in 1972. Again, I am not altogether sure. As Chief Judge Haynsworth demonstrated in his opinion for the en banc court below, there is some tension between the first and second sentences of § 905(b).3 These sentences are most easily reconciled if one assumes that Congress was thinking in terms of comparative negligence. The Court points out that there are other, less plausible, ways of reconciling the two sentences. Although I feel there is room for debate on this question, I am again willing to assume, for purposes of argument, that Congress did not impose a rule of comparative negligence in third-party suits under the LHWCA.
36
I cannot agree, however, with the Court's third proposition: that Congress intended to prohibit this Court from fashioning a rule of comparative negligence in suits for damages by a longshoreman against the shipowner. It is well established that courts exercising jurisdiction in maritime affairs have broad powers of interstitial rulemaking. As the Court stated in United States v. Reliable Transfer Co., 421 U.S. 397, 409, 95 S.Ct. 1708, 1715, 44 L.Ed.2d 251 (1975), "the Judiciary has traditionally taken the lead in formulating flexible and fair remedies in the law maritime, and 'Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law.' Fitzgerald v. United States Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 10 L.Ed.2d 720." I find nothing in the language or legislative history of § 905(b) that indicates Congress intended to reverse this presumption with respect to third-party actions under the LHWCA.
37
The Court suggests that Congress, in enacting § 905(b), "aligned the rights and liabilities of stevedores, shipowners, and longshoremen" on the specific assumption that the shipowner would not be allowed to reduce its liability because of the stevedore's comparative negligence. Ante, at 272. The legislative history belies this notion. Congress had two narrow objectives in mind in enacting § 905(b) in 1972: to overcome this Court's decision in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), and its decision in Ryan Stevedoring Co v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). See S.Rep. No. 92-1125, pp. 8-11 (1972). These decisions had created a form of circuitous liability whereby the longshoreman, under Seas Shipping, sued the shipowner under a theory of unseaworthiness; the shipowner, under Ryan Stevedoring, obtained full indemnity from the stevedore; and the stevedore ended up paying actual damages rather than statutory compensation. Congress overruled the strict-liability theory of Seas Shipping to ensure that "[t]he vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore." S.Rep. No. 92-1125, supra, at 11. It eliminated the Ryan Stevedoring action for indemnification because if "the vessel's liability is to be based on its own negligence, and the vessel will no longer be liable under the unseaworthiness doctrine for injuries which are really the fault of the stevedore, there is no longer any necessity for permitting the vessel to recover the damages for which it is liable to the injured worker from the stevedore . . .." S.Rep. No. 92-1125, supra, at 11. These statements of legislative purpose are as consistent, or more consistent, with a system of comparative negligence, than with a congressional assumption that the shipowner would be fully liable for the concurrent negligence of the stevedore.
38
The legislative history indicates that, if anything, Congress intended to preserve the role of the federal courts in filling in the contours of § 905(b). The House and Senate Reports state that the liability of a shipowner in an action brought by a longshoreman should be analogous to that which "would render a land-based third party in non-maritime pursuits liable under similar circumstances." S.Rep. No. 92-1125, supra, at 11. The Report emphasizes, however, that this does not mean state tort law is to govern third-party negligence suits against the vessel.
39
"[T]he Committee does not intend that the negligence remedy authorized in the bill shall be applied differently in different ports depending on the law of the State in which the port may be located. The Committee intends that legal questions which may arise in actions brought under these provisions of the law shall be determined as a matter of Federal law. In that connection, the Committee intends that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence, shall apply in cases where the injured employee's own negligence may have contributed to causing the injury. Also, the Committee intends that the admiralty rule which precludes the defense of 'assumption of risk' in an action by an injured employee shall also be applicable." Id., at 12.
40
In other words, Congress specifically reaffirmed the admiralty law tradition in the 1972 Amendments, and intended that this Court would continue to resolve "legal questions which may arise in actions brought under these provisions" in accordance with that tradition.
41
In short, in this case, as in Reliable Transfer, 421 U.S., at 409, 95 S.Ct., at 1715 "[n]o statutory or judicial precept precludes a change in the rule [that the shipowner is fully liable for the concurrent negligence of the stevedore], and indeed a proportional fault rule would simply bring recovery [as between the stevedore and shipowner] into line with the rule of admiralty law long since established [as between the longshoreman and the shipowner]."
II
42
I am also convinced that no injustice to injured longshoremen would result from a rule of comparative negligence. A rule of comparative negligence in no case would reduce the longshoreman's total award below his statutory workmen's compensation benefits.4 The rule of comparative negligence would affect only the relative proportion of statutory benefits and damages in the longshoreman's total compensation package. In the present case, for example, a rule of comparative negligence would mean the longshoreman would receive 20% damages and 80% statutory benefits, as opposed to 90% damages and 10% statutory benefits.
43
At first blush, it might appear that there is something unfair about reducing the total potential award of the longshoreman in this manner. But when the different purposes of the statutory compensation scheme and the third-party action for negligence are considered, it can be seen that this result is fully consistent with the policies of the statute. The LHWCA statutory compensation scheme, like other workmen's compensation plans, is based on a compromise. The longshoreman accepts less than full damages for work-related injuries. In exchange, he is guaranteed that these statutory benefits will be paid for every work-related injury without regard to fault. The third-party tort action, in contrast, embodies an element of risk. The longshoreman faces the prospect of an increased award, but also the possibility of receiving nothing if the shipowner is found not to have been negligent.
44
The problem of perceiving the equities arises because of the interaction of the compensation scheme and the tort scheme. If a longshoreman is injured while working on a vessel, and the stevedore is 100% at fault, no one considers it unjust that the longshoreman receives only statutory benefits. The award of less than full damages is the quid pro quo for the guarantee of recovery without regard to the employer's fault. Similarly, if a longshoreman is injured and the shipowner is 100% to blame, everyone agrees that it is fitting and proper for the shipowner to pay full damages. The Court, however, perceives "some inequity" in not allowing the longshoreman to obtain full damages when the shipowner has been determined to be only 20% negligent. Presumably, this same "inequity" would result if the longshoreman did not obtain full damages when the shipowner was 10% or 5% or even 1% negligent. This is not equity, however, but a windfall. Under the Court's rule, the longshoreman is guaranteed statutory compensation without regard to fault and is given a risk-free chance to obtain full damages if the shipowner is found negligent in even the slightest degree. A more evenhanded equity, in my view, would be for the longshoreman to recover damages for that portion of the injury for which the shipowner's negligence is responsible, and to recover the balance in statutory compensation, representing that portion of the injury for which the longshoreman is guaranteed an award regardless of fault.5
III
45
In sum, this case presents the relatively common situation where a statute is open to two interpretations, and the legislative history, although instructive as to the overriding purposes of Congress, provides no specific guidance as to which interpretation Congress would have adopted if it had addressed the precise issue. Our duty, in such a case, is to adopt the interpretation most consonant with reason, equity, and the underlying purposes Congress sought to achieve. If we are wrong, Congress can, as it has in the past, step in and adopt some other solution. But the problem should not be resolved by complacently accepting an unfair and unjust result, on the assumption the choice between the two interpretations ideally should be made by Congress. Under that approach, the Court and the country at large may end up with nothing more than an unfair and unjust result.
1
The District Court set aside a jury verdict for the longshoreman in an earlier trial because of errors in the jury instructions.
2
The plaintiff's negligence is not an absolute bar to recovery under maritime law, which accepts the concept of comparative negligence of plaintiff and defendant. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-409, 74 S.Ct. 202, 204, 98 L.Ed. 143 (1953); The Max Morris, 137 U.S. 1, 15, 11 S.Ct. 29, 33, 34 L.Ed. 586 (1890); see n. 23, infra.
3
A panel of the Court of Appeals had earlier reached a similar conclusion. 4 Cir., 558 F.2d 186, 193-194 (1977); see n. 26, infra.
4
Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 725 (CA2 1978); Samuels v. Empresa Lineas Maritimas Argentinas, 573 F.2d 884, 887-889 (CA5 1978), cert. pending, No. 78-795; Dodge v. Mitsui Shintaku Ginko K. K. Tokyo, 528 F.2d 669, 671-673 (CA9 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); Shellman v. United States Lines, Inc., 528 F.2d 675, 679-680 (CA9 1975), cert. denied, 425 U.S. 936, 96 S.Ct. 1668, 48 L.Ed.2d 177 (1976). See also Cella v. Partenreederei MS Ravenna, 529 F.2d 15, 20 (CA1 1975) (indicating agreement with Dodge, supra ), cert. denied, 425 U.S. 975, 96 S.Ct. 2175, 48 L.Ed.2d 799 (1976); Marant v. Farrell Lines, Inc., 550 F.2d 142, 145-147 (CA3 1977) (discussing but reserving the issue); id., at 147-152 (Van Dusen, J., concurring) (expressing concern over validity of apportionment of damages).
5
See also Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977); Director, Workers' Compensation Programs v. Rasmussen, 440 U.S. 29, 99 S.Ct. 903, 59 L.Ed.2d 122 (1979); P. C. Pfeiffer Co. v. Diverson Ford, No. 78-425 (to be reargued October Term 1979).
6
Title 33 U.S.C. § 933(a), which was unchanged in 1972, states that when a longshoreman "determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive . . . compensation or to recover damages against such third person." Section 905(b), which was added in 1972, states that the longshoreman "may bring an action against [the shipowner] as a third party in accordance with the provisions of section 933 . . . ."
7
See, e. g., Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 108, 113, 94 S.Ct. 2174, 2178, 40 L.Ed.2d 694 (1974) (longshoreman could have recovered entire damages from shipowner responsible for 50% of the total fault); Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 283, 72 S.Ct. 277, 278, 96 L.Ed. 318 (1952) (shipowner responsible for 25% of negligence required to pay 100% of damages, and contribution unavailable from negligent shoreside contractor, an employer under the Act). See also The Atlas, 93 U.S. 302, 23 L.Ed. 863 (1876); The Juniata, 93 U.S. 337, 23 L.Ed. 930 (1876). We stated the common-law rule in The Atlas and adopted it as part of admiralty jurisprudence: "Nothing is more clear than the right of a plaintiff, having suffered such a loss, to sue in a common-law action all the wrong-doers, or any one of them, at his election; and it is equally clear, that, if he did not contribute to the disaster, he is entitled to judgment in either case for the full amount of his loss." 93 U.S., at 315, 23 L.Ed. 863.
8
Restatement (Second) of Torts §§ 433A, 875, and 879 (1965 and 1979); T. Cooley, Law of Torts 142-144 (1879); W. Prosser, Law of Torts § 47, pp. 297-299, and § 52, pp. 314-315 (4th ed. 1971); cf. Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 527, 17 S.Ct. 661, 663, 41 L.Ed. 1101 (1897). A tortfeasor is not relieved of liability for the entire harm he caused just because another's negligence was also a factor in effecting the injury. "Nor are the damages against him diminished." Restatement, supra, § 879, Comment a. Likewise, under traditional tort law, a plaintiff obtaining a judgment against more than one concurrent tortfeasor may satisfy it against any one of them. Id., § 886. A concurrent tortfeasor generally may seek contribution from another, id., § 886A, but he is not relieved from liability for the entire damages even when the nondefendant tortfeasor is immune from liability. Id., § 880. These principles, of course, are inapplicable where the injury is divisible and the causation of each part can be separately assigned to each tortfeasor. Id., §§ 433A(1) and 881.
9
Generally, workers' compensation benefits are not intended to compensate for an employee's entire losses. 1A Larson, Law of Workmen's Compensation § 2.50 (1978). The 1972 Amendments to the Act, however, make a determined effort to narrow the gap between the harm suffered and the benefits payable.
10
See, e. g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-550, 80 S.Ct. 926, 932-933, 4 L.Ed.2d 941 (1960).
11
The Amendments also increased compensation benefits, expanded the Act's geographic coverage, and instituted a new means of adjudicating compensation cases. Robertson, Jurisdiction, Shipowner Negligence and Stevedore Immunities under the 1972 Amendments to the Longshoremen's Act, 28 Mercer L.Rev. 515, 516 (1977).
12
The first proposals in the legislative movement that produced the 1972 Amendments would have made all shipowners statutory employers, not just those also acting as stevedores, and thus cut off any tort action by the longshoreman. S. 525, 92d Cong., 1st Sess., § 1 (1971), Legislative History of the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (Committee Print compiled for the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare), pp. 393-394 (1972). Congress ultimately decided to preserve the longshoremen's tort action against shipowners acting as shipowners.
13
In Jackson v. Lykes Bros. S. S. Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967), and Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963), we upheld a longshoreman's negligence or unseaworthiness action against the shipowner-stevedore.
14
See S.Rep.No. 92-1125, p. 11 (1972), U.S.Code Cong. & Admin.News, p. 4698 (hereinafter S.Rep.) ("Accordingly, the bill provides in the case of a longshoreman who is employed directly by the vessel there will be no action for damages if the injury was caused by the negligence of persons engaged in performing longshoring services") (emphasis supplied). The House Report, H.R.Rep. No. 92-1441 (1972), is identical to the Senate Report in all respects material to this case. Accordingly, further references will be only to the Senate Report.
15
In many cases, of course, the shipowner whose act or omission contributed only a very small percentage of the total negligence will avoid liability on the ground of lack of causation.
16
S.Rep. 11-12.
17
In the Senate hearings, a plaintiff's lawyer mentioned diminution of damages as a possible solution so long as the shipowner's liability for unseaworthiness was retained. The only committee member present rejected this proposal, and Congress apparently never gave it serious consideration. See Hearings on S. 2318, S. 525, and S. 1547 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 354-355 (1972).
18
Laborers' International Union, Local No. 1057 v. NLRB, 186 U.S.App.D.C. 13, 20, 567 F.2d 1006, 1013 (1977).
The debate over § 905(b) involved the removal of the shipowner's liability for unseaworthiness. That occurred as a concomitant of ending liability under the stevedore's warranty of workmanlike service, which was a quid pro quo for increasing the compensation benefits. See S.Rep. 9-10. Some Congressmen objected to removing the vessel's liability for unseaworthiness because that would deny millions of dollars of relief for longshoremen's injuries. 118 Cong.Rec. 36382-36384 (1972) (Reps. Eckhardt, Dent, and Ashley). Indeed, the concern shared by some Congressmen over any modification of third-party actions "had political ramifications WHICH . . . RESULTED IN FORESTALLING ANY IMPROVEMENts in the . . . act for over twelve years." S.Rep. 9. Those Congressmen likely would have assailed the diminution of the longshoreman's recovery in proportion to the stevedore's fault if they had any inkling that the Amendments did that.
19
Id., at 2, 5, 10.
20
Id., at 8 ("where a longshoreman or other worker covered under this Act is injured through the fault of the vessel, the vessel should be liable for damages as a third party, just as land-based third parties in non-maritime pursuits are liable for damages when, through their fault, a worker is injured"); accord, id., at 10 and 11.
21
See n. 8, supra; 2A Larson, supra n. 9, § 75.22, at 14-263; Soule, Toward an Equitable and Rational Allocation of Employee Injury Losses in Cases with Third Party Liability, 1979 Ins. Counsel J. 201, 202-208.
22
S.Rep. 9-11.
23
E. g., Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964).
The shipowner also relies upon the Reports' reference to "comparative negligence," S.Rep. 12, but in context it is obvious that Congress alluded only, and not erroneously, see Prosser, Comparative Negligence, 51 Mich.L.Rev. 465 n. 2 (1953), to the comparative negligence of the plaintiff longshoreman and the defendant shipowner—a concept that, unlike the proposal before us today, was well established in admiralty. See S.Rep. 12; 33 U.S.C. § 905(a); n. 2, supra. It would be particularly curious for Congress to refer expressly to the established principle of comparative negligence, yet say not a word about adopting a new rule limiting the liability of the shipowner on the basis of the nonparty employer's negligence.
24
See Zapico v. Bucyrus-Erie Co., 579 F.2d, at 725 ("one is still left to wonder why the longshoreman injured by the negligence of a third party should recover less when his employer has also been negligent than when the employer has been without fault").
25
See The Etna, 138 F.2d 37 (CA3 1943).
26
The original Fourth Circuit panel opinion would have made the shipowner liable for an amount equal not just to his proportionate fault, but also to the employer's lien. 558 F.2d, at 194. The en banc court refused to make the vessel liable for the additional amount of the lien and declined to rule on any alteration of the lien since the employer was not party to the suit. 577 F.2d, at 1156.
27
Cf. Northeast Marine Terminal Co. v. Caputo, 432 U.S., at 279, 97 S.Ct., at 2365.
28
"It is the Committee's intention to prohibit such recovery under any theory including, without limitation, theories based on contract or tort." S.Rep. 11; see Pope & Talbot, Inc. v. Hawn, 346 U.S., at 412, 74 S.Ct., at 206 ("reduction of [the shipowner's] liability at the expense of [the employer] would be the substantial equivalent of contribution"); Dodge v. Mitsui Shintaku Ginko K. K. Tokyo, 528 F.2d, at 673; Steinberg, The 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act: Negligence Actions by Longshoremen against Shipowners—A Proposed Solution, 37 Ohio St.L.J. 767, 792-793 (1976).
29
See S.Rep. 9 ("much of the financial resources which could better be utilized to pay improved compensation benefits were now being spent to defray litigation costs" of stevedores in third-party actions).
30
As noted in n. 8, supra, the general rule is that a person whose negligence is a substantial factor in the plaintiff's indivisible injury is entirely liable even if other factors concurred in causing the injury. Normally, the chosen tortfeasor may seek contribution from another concurrent tortfeasor. If both are already before the court—for example, when the
plaintiff himself is the concurrent tortfeasor or when the two tortfeasors are suing each other as in a collision case like Reliable Transfer —a separate contribution action is unnecessary, and damages are simply allocated accordingly. But the stevedore is not a party and cannot be made a party here, so the Reliable Transfer contribution shortcut is inapplicable. Contribution remedies the unjust enrichment of the concurrent tortfeasor, see Leflar, Contribution and Indemnity Between Tortfeasors, 81 U.Pa.L.Rev. 130, 136 (1932), and while it may sometimes limit the ultimate loss of the tortfeasor chosen by the plaintiff, it does not justify allocating more of the loss to the innocent employee, who was not unjustly enriched. See also H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 525 (tent. ed. 1958). Our prior cases recognize that. Even before Reliable Transfer, we apportioned damages between vessels that collided and sued one another. Reliable Transfer merely changed the apportionment from equal division to division on the basis of relative fault. But we did not upset the rule that the plaintiff may recover from one of the colliding vessels the damage concurrently caused by the negligence of both. Compare Reliable Transfer Co. (apportionment of damages on basis of relative fault between plaintiff and defendant who concurrently caused grounding), and The Schooner Catharine v. Dickinson, 17 How. 170, 5 L.Ed. 233 (1855) (equal apportionment of damages between libelant and respondent vessels where both at fault in collision), with The Atlas, 93 U.S. 302, 23 L.Ed. 863 (1876) (in suit by insurer of cargo against one of two ships whose concurrent fault caused collision, the insurer is entitled to recover in full, despite the rule of equal apportionment, because the insurer is not a wrongdoer), and The Juniata, 93 U.S. 337, 340, 23 L.Ed. 930 (1876) (same; if respondent vessel has any rights against nonparty vessel, they "must be settled in another proceeding").
31
Of course, our decision does not necessarily have any effect on situations where the Act provides the workers' compensation scheme but the third-party action is not governed by principles of maritime law. Cf. Dawson v. Contractors Transp. Corp., 151 U.S.App.D.C. 401, 467 F.2d 727 (1972) (private employees in the District of Columbia). See also infra, at 273.
32
Respondent seeks support for its position in the results of "a meeting attended by representatives of labor and industry, Committee members and Committee staff." Brief for Respondent 16. Respondent asserts that the participants at this meeting arrived at a compromise whereby the courts were to fashion the rules to be applied in concurrent-fault situations. No official record of this meeting exists, and subsequent legislative history does not so much as hint at such a compromise. We are not told that the Senators and Representatives who voted for the Amendments when they reached the floor knew of the compromise, and we can only presume that they acted with the existing state of the law, not the probability of future judicial change, in mind.
1
As of December 18, 1978, the stevedore's insurance company had paid Edmonds a total of $49,152 in statutory benefits. Brief for Liberty Mutual Insurance Co. as Amicus Curiae 2. Under the judicially created lien sanctioned by the Court's opinion, ante, at 269-270, the stevedore's insurer will recover this entire sum out of the $90,000 damages awarded to Edmonds.
2
Technically, there is no issue of "joint and several" liability here, for the stevedore has statutory immunity from tort liability. 33 U.S.C. § 905(a). Nor are the policies behind the common-law rule of joint and several liability applicable. The common-law rule serves largely to protect plaintiffs from defendants who are unable to pay judgments entered against them. The LHWCA, however, provides safeguards to ensure the payment of compensation benefits. 33 U.S.C. § 932. There is little need, therefore, to make the shipowner liable for full damages to protect the longshoreman from impecunious stevedores.
3
The first sentence reads: "In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person . . . may bring an action against such vessel as a third party . . . ." The second sentence reads: "If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel." (Emphasis added.) If the phrase "caused by the negligence" in both sentences is given the same meaning, and interpreted to mean "caused by any negligence whatsoever," then an employee of an independent stevedoring company could recover full damages under the first sentence if the shipowner was 1% negligent and the stevedore 99% negligent. A longshoreman hired directly by the shipowner, however, would be denied any recovery at all under the second sentence if persons involved in doing stevedoring work committed as little as 1% of the negligence, even if the shipowner was otherwise 99% negligent. If the statutory phrase "caused by the negligence" is interpreted to import the notion of comparative negligence, this anomaly does not arise.
4
Those benefits, after the 1972 Amendments, are relatively generous. The LHWCA claimant receives two-thirds of his lost wages, free of income taxes, and adjusted periodically for inflation, 33 U.S.C. §§ 906, 908; his medical and rehabilitation expenses are paid, § 907; and his attorney's fees are paid. § 928.
5
See Coleman & Daly, Equitable Credit: Apportionment of Damages According to Fault in Tripartite Litigation Under the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 35 Md.L.Rev. 351 (1976).
| 78
|
443 U.S. 368
99 S.Ct. 2898
61 L.Ed.2d 608
GANNETT CO., INC., Petitioner,v.Daniel A. DePASQUALE, etc., et al.
No. 77-1301.
Argued Nov. 7, 1978.
Decided July 2, 1979.
Syllabus
At a pretrial hearing on a motion to suppress allegedly involuntary confessions and certain physical evidence, respondents Greathouse and Jones, who were defendants in a state prosecution for second-degree murder, robbery, and grand larceny, requested that the public and the press be excluded from the hearing, arguing that the unabated buildup of adverse publicity had jeopardized their ability to receive a fair trial. The district attorney did not oppose the motion and a reporter employed by petitioner, whose newspapers had given extensive coverage of the crime through the defendants' indictment and arraignment, made no objection at the time of the closure motion though she was present in the courtroom. Respondent trial judge granted the motion, and in response to the reporter's letter on the next day asserting a right to cover the hearing and requesting access to the transcript, stated that the suppression hearing had concluded and that any decision on immediate release of the transcript had been reserved. Petitioner then moved to have the closure order set aside but the trial judge, after a hearing, refused to vacate the order or grant petitioner immediate access to the transcript, ruling that the interest of the press and the public was outweighed by the defendants' right to a fair trial. Petitioner immediately commenced a proceeding in the nature of prohibition and mandamus in the New York Supreme Court, Appellate Division, challenging the trial court's orders on First, Sixth, and Fourteenth Amendment grounds. The Appellate Division vacated the orders, holding that they transgressed the public's vital interest in open judicial proceedings and further constituted an unlawful prior restraint in violation of the First and Fourteenth Amendments. The New York Court of Appeals, although holding that the case was technically moot because shortly before entry of the Appellate Division's judgment, the defendants had pleaded guilty to lesser included offenses and a transcript of the suppression hearing was made available to petitioner, nevertheless retained jurisdiction in view of the importance of the issues and upheld the exclusion of the press and the public from the pretrial proceeding.
Held:
1. The controversy is not moot. This Court's jurisdiction is not defeated "simply because the order attacked has expired, if the underlying dispute between the parties is one 'capable of repetition, yet evading review.' " Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683. Here, the order closing the pretrial hearing is too short in its duration to permit full review, and it is reasonably to be expected that petitioner will be subjected to similar closure orders in the future. Pp. 378-394.
2. The Constitution does not give petitioner an affirmative right of access to the pretrial proceeding, all the participants in the litigation having agreed that it should be closed to protect the fair-trial rights of the defendants. Pp. 378-394.
(a) To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity, and he may take protective measures even when they are not strictly and inescapably necessary. Publicity concerning pretrial suppression hearings poses special risks of unfairness because it may influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial. Pp. 378-379.
(b) The Sixth Amendment's guarantee of a public trial is for the benefit of the defendant alone. The Constitution nowhere mentions any right of access to a criminal trial on the part of the public. Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543. While there is a strong societal interest in public trials, nevertheless members of the public do not have an enforceable right to a public trial that can be asserted independently of the parties in the litigation. The adversary system of criminal justice is premised upon the proposition that the public interest is fully protected by the participants in the litigation. Pp. 379-384.
(c) The history of the Sixth Amendment's public-trial guarantee demonstrates no more than the existence of a common-law rule of open civil and criminal proceedings, not a constitutional right of members of the general public to attend a criminal trial. Even if the Sixth and Fourteenth Amendments could properly be viewed as embodying the common-law right of the public to attend criminal trials, there is no persuasive evidence that the public had any right at common law to attend pretrial proceedings. To the contrary, by the time of the adoption of the Constitution, public trials were clearly associated with the protection of the defendant, and pretrial proceedings, precisely because of the same concern for a fair trial, were never characterized by the same degree of openness as were actual trials. Pp. 384-391.
(d) Even assuming, arguendo, that the First and Fourteenth Amendments may guarantee a right to members of the press and the public to attend criminal trials in some situations, this putative right was given all appropriate deference by the state nisi prius court in the present case. Even though none of the spectators present in the courtroom, including petitioner's reporter, objected when the defendants made the closure motion, petitioner's counsel was given an opportunity to be heard, and the trial court thereafter concluded that the defendants' right to a fair trial outweighed the "constitutional rights of the press and the public." Furthermore, any denial of access was only temporary; once the danger of prejudice had dissipated, a transcript of the suppression hearing was made available. Thus, any First and Fourteenth Amendment right of petitioner to attend criminal trials was not violated. Pp. 391-393.
43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544, affirmed.
Robert C. Bernius, Rochester, N.Y., for petitioner.
Bernard Kobroff, New York City, for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The question presented in this case is whether members of the public have an independent constitutional right to insist upon access to a pretrial judicial proceeding, even though the accused, the prosecutor, and the trial judge all have agreed to the closure of that proceeding in order to assure a fair trial.
2
* Wayne Clapp, aged 42 and residing at Henrietta, a Rochester, N. Y., suburb, disappeared in July 1976. He was last seen on July 16 when, with two male companions, he went out on his boat to fish in Seneca Lake, about 40 miles from Rochester. The two companions returned in the boat the same day and drove away in Clapp's pickup truck. Clapp was not with them. When he failed to return home by July 19, his family reported his absence to the police. An examination of the boat, laced with bulletholes, seemed to indicate that Clapp had met a violent death aboard it. Police then began an intensive search for the two men. They also began lake-dragging operations in an attempt to locate Clapp's body.
3
The petitioner, Gannett Co., Inc., publishes two Rochester newspapers, the morning Democrat & Chronicle and the evening Times-Union.1 On July 20, each paper carried its first story about Clapp's disappearance. Each reported the few details that were then known and stated that the police were theorizing that Clapp had been shot on his boat and his body dumped overboard. Each stated that the body was missing. The Times-Union mentioned the names of respondents Greathouse and Jones and said that Greathouse "was identified as one of the two companions who accompanied Clapp Friday" on the boat; said that the two were aged 16 and 21, respectively; and noted that the police were seeking the two men and Greathouse's wife, also 16. Accompanying the evening story was a 1959 photograph of Clapp. The report also contained an appeal from the state police for assistance.
4
Michigan police apprehended Greathouse, Jones, and the woman on July 21. This came about when an interstate bulletin describing Clapp's truck led to their discovery in Jackson County, Mich., by police who observed the truck parked at a local motel. The petitioner's two Rochester papers on July 22 reported the details of the capture. The stories recounted how the Michigan police, after having arrested Jones in a park, used a helicopter and dogs and tracked down Greathouse and the woman in some woods. They recited that Clapp's truck was located near the park.
5
The stories also stated that Seneca County police theorized that Clapp was shot with his own pistol, robbed, and his body thrown into Seneca Lake. The articles provided background on Clapp's life, sketched the events surrounding his disappearance, and said that New York had issued warrants for the arrest of the three persons. One of the articles reported that the Seneca County District Attorney would seek to extradite the suspects and would attempt to carry through with a homicide prosecution even if Clapp's body were not found. The paper also quoted the prosecutor as stating, however, that the evidence was still developing and "the case could change." The other story noted that Greathouse and Jones were from Texas and South Carolina, respectively.
6
Both papers carried stories on July 23. These revealed that Jones, the adult, had waived extradition and that New York police had traveled to Michigan and were questioning the suspects. The articles referred to police speculation that extradition of Greathouse and the woman might involve "legalities" because they were only 16 and considered juveniles in Michigan. The morning story provided details of an interview with the landlady from whom the suspects had rented a room while staying in Seneca County at the time Clapp disappeared. It also noted that Greathouse, according to state police, was on probation in San Antonio, Tex., but that the police did not know the details of his criminal record.
7
The Democrat & Chronicle carried another story on the morning of July 24. It stated that Greathouse had led the Michigan police to the spot where he had buried a .357 magnum revolver belonging to Clapp and that the gun was being returned to New York with the three suspects. It also stated that the police had found ammunition at the motel where Greathouse and the woman were believed to have stayed before they were arrested. The story repeated the basic facts known about the disappearance of Clapp and the capture of the three suspects in Michigan. It stated that New York police continued to search Seneca Lake for Clapp's body.
8
On July 25, the Democrat & Chronicle reported that Greathouse and Jones had been arraigned before a Seneca County Magistrate on second-degree murder charges shortly after their arrival from Michigan; that they and the woman also had been arraigned on charges of second-degree grand larceny; that the three had been committed to the Seneca County jail; that all three had "appeared calm" during the court session; and that the Magistrate had read depositions signed by three witnesses, one of whom testified to having heard "five or six shots" from the lake on the day of the disappearance, just before seeing Clapp's boat "veer sharply" in the water.
9
Greathouse, Jones, and the woman were indicted by a Seneca County grand jury on August 2. The two men were charged, in several counts, with second-degree murder, robbery, and grand larceny. The woman was indicted on one count of grand larceny. Both the Democrat & Chronicle and the Times-Union on August 3 reported the filing of the indictments. Each story stated that the murder charges specified that the two men had shot Clapp with his own gun, had weighted his body with anchors and tossed it into the lake, and then had made off with Clapp's credit card, gun, and truck. Each reported that the defendants were held without bail, and each again provided background material with details of Clapp's disappearance. The fact that Clapp's body still had not been recovered was mentioned. One report noted that, according to the prosecutor, if the body were not recovered prior to trial, "it will be the first such trial in New York State history." Each paper on that day also carried a brief notice that a memorial service for Clapp would be held that evening in Henrietta. These notices repeated that Greathouse and Jones had been charged with Clapp's murder and that his body had not been recovered.
10
On August 6, each paper carried a story reporting the details of the arraignments of Greathouse and Jones the day before. The papers stated that both men had pleaded not guilty to all charges. Once again, each story repeated the basic facts of the accusations against the men and noted that the woman was arraigned on a larceny charge. The stories noted that defense attorneys had been given 90 days in which to file pretrial motions.
11
During this 90-day period, Greathouse and Jones moved to suppress statements made to the police. The ground they asserted was that those statements had been given involuntarily.2 They also sought to suppress physical evidence seized as fruits of the allegedly involuntary confessions; the primary physical evidence they sought to suppress was the gun to which, as petitioner's newspaper had reported, Greathouse had led the Michigan police.
12
The motions to suppress came on before Judge DePasquale on November 4.3 At this hearing, defense attorneys argued that the unabated buildup of adverse publicity had jeopardized the ability of the defendants to receive a fair trial. They thus requested that the public and the press be excluded from the hearing. The District Attorney did not oppose the motion. Although Carol Ritter, a reporter employed by the petitioner, was present in the courtroom, no objection was made at the time of the closure motion. The trial judge granted the motion.
13
The next day, however, Ritter wrote a letter to the trial judge asserting a "right to cover this hearing," and requesting that "we . . . be given access to the transcript." The judge responded later the same day. He stated that the suppression hearing had concluded and that any decision on immediate release of the transcript had been reserved. The petitioner then moved the court to set aside its exclusionary order.
14
The trial judge scheduled a hearing on this motion for November 16 after allowing the parties to file briefs. At this proceeding, the trial judge stated that, in his view, the press had a constitutional right of access although he deemed it "unfortunate" that no representative of the petitioner had objected at the time of the closure motion. Despite his acceptance of the existence of this right, however, the judge emphasized that it had to be balanced against the constitutional right of the defendants to a fair trial. After finding on the record that an open suppression hearing would pose a "reasonable probability of prejudice to these defendants," the judge ruled that the interest of the press and the public was outweighed in this case by the defendants' right to a fair trial. The judge thus refused to vacate his exclusion order or grant the petitioner immediate access to a transcript of the pretrial hearing.
15
The following day, an original proceeding in the nature of prohibition and mandamus, challenging the closure orders on First, Sixth, and Fourteenth Amendment grounds, was commenced by the petitioner in the Supreme Court of the State of New York, Appellate Division, Fourth Department. On December 17, 1976, that court held that the exclusionary orders transgressed the public's vital interest in open judicial proceedings and further constituted an unlawful prior restraint in violation of the First and Fourteenth Amendments. It accordingly vacated the trial court's orders. 55 A.D.2d 107, 389 N.Y.S.2d 719 (1976).
16
On appeal, the New York Court of Appeals held that the case was technically moot4 but, because of the critical importance of the issues involved, retained jurisdiction and reached the merits. The court noted that under state law, "[c]riminal trials are presumptively open to the public, including the press," but held that this presumption was overcome in this case because of the danger posed to the defendants' ability to receive a fair trial. Thus, the Court of Appeals upheld the exclusion of the press and the public from the pretrial proceeding. 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544 (1977). Because of the significance of the constitutional questions involved, we granted certiorari. 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387.
II
17
We consider, first, the suggestion of mootness, noted and rejected by the New York Court of Appeals. 43 N.Y.2d, at 376, 401 N.Y.S.2d, at 759, 372 N.E.2d, at 547. We conclude that this aspect of the case is governed by Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546-547, 96 S.Ct. 2791, 2796-2797, 49 L.Ed.2d 683, and that the controversy is not moot. The petitioner, of course, has obtained access to the transcript of the suppression hearing. But this Court's jurisdiction is not defeated, id., at 546, 96 S.Ct., at 2797, "simply because the order attacked has expired, if the underlying dispute between the parties 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)." To meet that test, two conditions must be satisfied: "(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, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350.
18
Those conditions have been met. The order closing a pretrial hearing is too short in its duration to permit full review. And to the extent the order has the effect of denying access to the transcript, termination of the underlying criminal proceeding by a guilty plea, as in this case, or by a jury verdict, nearly always will lead to a lifting of the order before appellate review is completed. The order is "by nature short-lived." Nebraska Press, supra, 427 U.S., at 547, 96 S.Ct., at 2797. Further, it is reasonably to be expected that the petitioner, as publisher of two New York newspapers, will be subjected to similar closure orders entered by New York courts in compliance with the judgment of that State's Court of Appeals. We therefore turn to the merits.
III
19
This Court has long recognized that adverse publicity can endanger the ability of a defendant to receive a fair trial. E. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. Cf. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543. To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Sheppard v. Maxwell, supra. And because of the Constitution's pervasive concern for these due process rights, a trial judge may surely take protective measures even when they are not strictly and inescapably necessary.
20
Publicity concerning pretrial suppression hearings such as the one involved in the present case poses special risks of unfairness. The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.
21
The danger of publicity concerning pretrial suppression hearings is particularly acute, because it may be difficult to measure with any degree of certainty the effects of such publicity on the fairness of the trial. After the commencement of the trial itself, inadmissible prejudicial information about a defendant can be kept from a jury by a variety of means.5 When such information is publicized during a pretrial proceeding, however, it may never be altogether kept from potential jurors. Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun. Cf. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663.6
IV
A.
22
The Sixth Amendment, applicable to the States through the Fourteenth, surrounds a criminal trial with guarantees such as the rights to notice, confrontation, and compulsory process that have as their overriding purpose the protection of the accused from prosecutorial and judicial abuses.7 Among the guarantees that the Amendment provides to a person charged with the commission of a criminal offense, and to him alone, is the "right to a speedy and public trial, by an impartial jury." The Constitution nowhere mentions any right of access to a criminal trial on the part of the public; its guarantee, like the others enumerated, is personal to the accused. See Faretta v. California, 422 U.S. 806, 848, 95 S.Ct. 2525, 2547, 45 L.Ed.2d 562 ("[T]he specific guarantees of the Sixth Amendment are personal to the accused") (BLACKMUN, J., dissenting).
23
Our cases have uniformly recognized the public trial guarantee as one created for the benefit of the defendant. In In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, this Court held that the secrecy of a criminal contempt trial violated the accused's right to a public trial under the Fourteenth Amendment. The right to a public trial, the Court stated, "has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." Id., at 270, 68 S.Ct., at 506. In an explanatory footnote, the Court stated that the public trial guarantee
24
" . . . 'is for the protection of all persons accused of crime—the innocently accused, that they may not become the victim of an unjust prosecution, as well as the guilty, that they may be awarded a fair trial—that one rule [as to public trials] must be observed and applied to all.' Frequently quoted is the statement in [1] Cooley, Constitutional Limitations (8th ed. 1927) at 647: 'The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions . . . .' " Id., at 270 n. 25, 68 S.Ct., at 506 n. 25.8
25
Similarly, in Estes v. Texas, supra, the Court held that a defendant was deprived of his right to due process of law under the Fourteenth Amendment by the televising and broadcasting of his trial. In rejecting the claim that the media representatives had a constitutional right to televise the trial, the Court stated that "[t]he purpose of the requirement of a public trial was to guarantee that the accused would be fairly dealt with and not unjustly condemned." 381 U.S., at 538-539, 85 S.Ct., at 1631. See also id., at 588, 85 S.Ct., at 1662 ("Thus the right of 'public trial is not one belonging to the public, but one belonging to the accused, and inhering in the institutional process by which justice is administered") (Harlan, C. J., concurring); id., at 583, 85 S.Ct., at 1653. ("[T]he public trial provision of the Sixth Amendment is a 'guarantee to an accused' . . . [and] a necessary component of an accused's right to a fair trial . . .") (Warren, C. J., concurring).
26
Thus, both the Oliver and Estes cases recognized that the constitutional guarantee of a public trial is for the benefit of the defendant. There is not the slightest suggestion in either case that there is any correlative right in members of the public to insist upon a public trial.9
B
27
While the Sixth Amendment guarantees to a defendant in a criminal case the right to a public trial, it does not guarantee the right to compel a private trial. "The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right." Singer v. United States, 380 U.S. 24, 34-35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630.10 But the issue here is not whether the defendant can compel a private trial.11 Rather, the issue is whether members of the public have an enforceable right to a public trial that can be asserted independently of the parties in the litigation.
28
There can be no blinking the fact that there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system. Estes v. Texas, 381 U.S., at 583, 85 S.Ct., at 1653 (Warren, C. J., concurring). But there is a strong societal interest in other constitutional guarantees extended to the accused as well. The public, for example, has a definite and concrete interest in seeing that justice is swiftly and fairly administered. See Barker v. Wingo, 407 U.S. 514, 519, 92 S.Ct. 2182, 2186, 33 L.Ed.2d 101. Similarly, the public has an interest in having a criminal case heard by a jury, an interest distinct from the defendant's interest in being tried by a jury of his peers. Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854.
29
Recognition of an independent public interest in the enforcement of Sixth Amendment guarantees is a far cry, however, from the creation of a constitutional right on the part of the public. In an adversary system of criminal justice, the public interest in the administration of justice is protected by the participants in the litigation. Thus, because of the great public interest in jury trials as the preferred mode of fact-finding in criminal cases, a defendant cannot waive a jury trial without the consent of the prosecutor and judge. Singer v. United States, supra, 380 U.S., at 38, 85 S.Ct., at 791; Patton v. United States, supra, 281 U.S., at 312, 50 S.Ct., at 263. But if the defendant waives his right to a jury trial, and the prosecutor and the judge consent, it could hardly be seriously argued that a member of the public could demand a jury trial because of the societal interest in that mode of fact-finding. Cf. Fed.Rule Crim.Proc. 23(a) (trials to be by jury unless waived by a defendant, but the court must approve and the prosecution must consent to the waiver). Similarly, while a defendant cannot convert his right to a speedy trial into a right to compel an indefinite postponement, a member of the general public surely has no right to prevent a continuance in order to vindicate the public interest in the efficient administration of justice. In short, our adversary system of criminal justice is premised upon the proposition that the public interest is fully protected by the participants in the litigation.12
V
30
In arguing that members of the general public have a constitutional right to attend a criminal trial, despite the obvious lack of support for such a right in the structure or text of the Sixth Amendment, the petitioner and amici rely on the history of the public-trial guarantee. This history, however, ultimately demonstrates no more than the existence of a common-law rule of open civil and criminal proceedings.
A.
31
Not many common-law rules have been elevated to the status of constitutional rights. The provisions of our Constitution do reflect an incorporation of certain few common-law rules and a rejection of others. The common-law right to a jury trial, for example, is explicitly embodied in the Sixth and Seventh Amendments. The common-law rule that looked upon jurors as interested parties who could give evidence against a defendant13 was explicitly rejected by the Sixth Amendment provision that a defendant is entitled to be tried by an "impartial jury." But the vast majority of common-law rules were neither made part of the Constitution nor explicitly rejected by it.
32
Our judicial duty in this case is to determine whether the common-law rule of open proceedings was incorporated, rejected, or left undisturbed by the Sixth Amendment. In pursuing this inquiry, it is important to distinguish between what the Constitution permits and what it requires. It has never been suggested that by phrasing the public-trial guarantee as a right of the accused, the Framers intended to reject the common-law rule of open proceedings. There is no question that the Sixth Amendment permits and even presumes open trials as a norm. But the issue here is whether the Constitution requires that a pretrial proceeding such as this one be opened to the public, even though the participants in the litigation agree that it should be closed to protect the defendants' right to a fair trial.14 The history upon which the petitioner and amici rely totally fails to demonstrate that the Framers of the Sixth Amendment intended to create a constitutional right in strangers to attend a pretrial proceeding, when all that they actually did was to confer upon the accused an explicit right to demand a public trial.15 In conspicuous contrast with some of the early state constitutions that provided for a public right to open civil and criminal trials,16 the Sixth Amendment confers the right to a public trial only upon a defendant and only in a criminal case.
B
33
But even if the Sixth and Fourteenth Amendments could properly be viewed as embodying the common-law right of the public to attend criminal trials, it would not necessarily follow that the petitioner would have a right of access under the circumstances of this case. For there exists no persuasive evidence that at common law members of the public had any right to attend pretrial proceedings; indeed, there is substantial evidence to the contrary.17 By the time of the adoption of the Constitution, public trials were clearly associated with the protection of the defendant.18 And pretrial proceedings, precisely because of the same concern for a fair trial, were never characterized by the same degree of openness as were actual trials.19
34
Under English common law, the public had no right to attend pretrial proceedings. E. g., E. Jenks, The Book of English Law 75 (6th ed. 1967) ("It must, of course, be remembered, that the principle of publicity only applies to the actual trial of a case, not necessarily to the preliminary or prefatory stages of the proceedings . . . "); F. Maitland, Justice and Police 129 (1885) (The "preliminary examination of accused persons has gradually assumed a very judicial form . . .. The place in which it is held is indeed no 'open court,' the public can be excluded if the magistrate thinks that the ends of justice will thus be best answered . . . "). See also Indictable Offences Act, 11 § 12 Vict., ch. 42, § 19 (1848) (providing that pretrial proceedings should not be deemed an open court and that the public could therefore be excluded); Magistrates' Courts Act, 15 & 16 Geo. 6 & 1 Eliz. 2, ch. 55, § 4(2) (1952) (same).20
35
Closed pretrial proceedings have been a familiar part of the judicial landscape in this country as well. The original New York Field Code of Criminal Procedure published in 1850, for example, provided that pretrial hearings should be closed to the public "upon the request of a defendant."21 The explanatory report made clear that this provision was designed to protect defendants from prejudicial pretrial publicity:
36
"If the examination must necessarily be public, the consequence may be that the testimony upon the mere preliminary examination will be spread before the community, and a state of opinion created, which, in cases of great public interest, will render it difficult to obtain an unprejudiced jury. The interests of justice require that the case of the defendant should not be prejudiced, if it can be avoided; and no one can justly complain, that until he is put upon his trial, the dangers of this prejudgment are obviated."22
37
Indeed, eight of the States that have retained all or part of the Field Code have kept the explicit provision relating to closed pretrial hearings.23
38
For these reasons, we hold that members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials.
VI
39
The petitioner also argues that members of the press and the public have a right of access to the pretrial hearing by reason of the First and Fourteenth Amendments. In Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495; Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 and Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553; this Court upheld prison regulations that denied to members of the press access to prisons superior to that afforded to the public generally. Some Members of the Court, however, took the position in those cases that the First and Fourteenth Amendments do guarantee to the public in general, or the press in particular, a right of access that precludes their complete exclusion in the absence of a significant governmental interest. See Saxbe, supra, 417 U.S., at 850, 94 S.Ct., at 2815 (POWELL, J., dissenting); Houchins, supra, 438 U.S., at 19, 98 S.Ct., at 2599 (STEVENS, J., dissenting). See also id., at 16, 98 S.Ct., at 2598 (STEWART, J., concurring).
40
The petitioner in this case urges us to narrow our rulings in Pell, Saxbe, and Houchins at least to the extent of recognizing a First and Fourteenth Amendment right to attend criminal trials.24 We need not decide in the abstract, however, whether there is any such constitutional right. For even assuming, arguendo, that the First and Fourteenth Amendments may guarantee such access in some situations, a question we do not decide, this putative right was given all appropriate deference by the state nisi prius court in the present case.
41
Several factors lead to the conclusion that the actions of the trial judge here were consistent with any right of access the petitioner may have had under the First and Fourteenth Amendments. First, none of the spectators present in the courtroom, including the reporter employed by the petitioner, objected when the defendants made the closure motion. Despite this failure to make a contemporaneous objection, counsel for the petitioner was given an opportunity to be heard at a proceeding where he was allowed to voice the petitioner's objections to closure of the pretrial hearing. At this proceeding, which took place after the filing of briefs, the trial court balanced the "constitutional rights of the press and the public" against the "defendants' right to a fair trial." The trial judge concluded after making this appraisal that the press and the public could be excluded from the suppression hearing and could be denied immediate access to a transcript, because an open proceeding would pose a "reasonable probability of prejudice to these defendants." Thus, the trial court found that the representatives of the press did have a right of access of constitutional dimension, but held, under the circumstances of this case, that this right was outweighed by the defendants' right to a fair trial. In short, the closure decision was based "on an assessment of the competing societal interests involved . . . rather than on any determination that First Amendment freedoms were not implicated." Saxbe, supra, 417 U.S., at 860, 94 S.Ct., at 2819-2820 (POWELL, J., dissenting).
42
Furthermore, any denial of access in this case was not absolute but only temporary. Once the danger of prejudice had dissipated, a transcript of the suppression hearing was made available. The press and the public then had a full opportunity to scrutinize the suppression hearing. Unlike the case of an absolute ban on access, therefore, the press here had the opportunity to inform the public of the details of the pretrial hearing accurately and completely. Under these circumstances, any First and Fourteenth Amendment right of the petitioner to attend a criminal trial was not violated.25
VII
43
We certainly do not disparage the general desirability of open judicial proceedings. But we are not asked here to declare whether open proceedings represent beneficial social policy, or whether there would be a constitutional barrier to a state law that imposed a stricter standard of closure than the one here employed by the New York courts. Rather, we are asked to hold that the Constitution itself gave the petitioner an affirmative right of access to this pretrial proceeding, even though all the participants in the litigation agreed that it should be closed to protect the fair-trial rights of the defendants.
44
For all of the reasons discussed in this opinion, we hold that the Constitution provides no such right. Accordingly, the judgment of the New York Court of Appeals is affirmed.
45
It is so ordered.
46
Mr. Chief Justice BURGER, concurring.
47
I join the opinion of the Court, but I write separately to emphasize my view of the nature of the proceeding involved in today's decision. By definition, a hearing on a motion before trial to suppress evidence is not a trial ; it is a pre trial hearing.
48
The Sixth Amendment tells us that "[i]n all criminal prosecutions, the accused SHALL ENJOY THE RIGHT TO A . . . PUBLIC TRIAL." (EMPHASIS SUPPLIED.) it is the practice of Western societies, and has been part of the common-law tradition for centuries, that trials generally be public. This is an important prophylaxis of the system of justice that constitutes the adhesive element of our society. The public has an interest in observing the performance not only of the litigants and the witnesses, but also of the advocates and the presiding judge. Similarly, if the accused testifies, there is a proper public interest in that testimony. But interest alone does not create a constitutional right.
49
At common law there was a very different presumption for proceedings which preceded the trial. There was awareness of the untoward effects that could result from the publication of information before an indictment was returned or before a person was bound over for trial. For an example we need only consider the case of Daubney v. Cooper, 5 M. & R. 314 (K.B.1829), which involved a suit for trespass against a judge for forcing a person out of a courtroom. The argument concentrated on whether a defendant was entitled to be represented by counsel. But the following exchange on appeal illustrates the distinction drawn between trials and pre trial proceedings:
50
(Counsel) ". . . The decision in Cox v. Coleridge proceeded on the ground that what had taken place before the magistrates, was merely a preliminary inquiry. The decision proceeded entirely upon that ground. The Court pointed out the inconvenience which would result from giving publicity to such previous inquiry."
51
Bayley, J. (interrupting) ". . . I believe that in that case a distinction was taken between a preliminary inquiry and an inquiry upon which there may be a conviction."
52
(Counsel continued) ". . . Lord Tenterden there says, 'This being only a preliminary inquiry, and not a trial, makes, in my mind, all the difference.' "** [Emphasis in original.]
53
Parke, J. (interrupting) ". . . The decision in Cox v. Coleridge turned upon its being a case of preliminary inquiry." Id., at 316, 318.
54
In sum, at common law, the courts recognized that the timing of a proceeding was likely to be critical.
55
When the Sixth Amendment was written, and for more than a century after that, no one could have conceived that the exclusionary rule and pretrial motions to suppress evidence would be part of our criminal jurisprudence. The authors of the Constitution, imaginative, farsighted, and perceptive as they were, could not conceivably have anticipated the paradox inherent in a judge-made rule of evidence that excludes undoubted truth from the truthfinding processes of the adversary system. Nevertheless, as of now, we are confronted not with a legal theory but with the reality of the unique strictures of the exclusionary rule, and they must be taken into account in this setting. To make public the evidence developed in a motion to suppress evidence, cf. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), would, so long as the exclusionary rule is not modified, introduce a new dimension to the problem of conducting fair trials.
56
Even though the draftsmen of the Constitution could not anticipate the 20th-century pretrial proceedings to suppress evidence, pretrial proceedings were not wholly unknown in that day. Written interrogatories were used pretrial in 18th-century litigation, especially in admiralty cases. Thus, it is safe to assume that those lawyers who drafted the Sixth Amendment were not unaware that some testimony was likely to be recorded before trials took place. Yet, no one ever suggested that there was any "right" of the public to be present at such pretrial proceedings as were available in that time; until the trial it could not be known whether and to what extent the pretrial evidence would be offered or received.
57
Similarly, during the last 40 years in which the pretrial processes have been enormously expanded, it has never occurred to anyone, so far as I am aware, that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants. A pretrial deposition does not become part of a "trial" until and unless the contents of the deposition are offered in evidence. Pretrial depositions are not uncommon to take the testimony of a witness, either for the defense or for the prosecution. In the entire pretrial period, there is no certainty that a trial will take place. Something in the neighborhood of 85 percent of all criminal charges are resolved by guilty pleas, frequently after pretrial depositions have been taken or motions to suppress evidence have been ruled upon.
58
For me, the essence of all of this is that by definition "pretrial proceedings" are exactly that.
59
Mr. Justice POWELL, concurring.
60
Although I join the opinion of the Court, I would address the question that it reserves. Because of the importance of the public's having accurate information concerning the operation of its criminal justice system, I would hold explicitly that petitioner's reporter had an interest protected by the First and Fourteenth Amendments in being present at the pretrial suppression hearing.1 As I have argued in Saxbe v. Washington Post Co., 417 U.S. 843, 850, 94 S.Ct. 2811, 2815, 41 L.Ed.2d 514 (1974) (POWELL, J., dissenting), this constitutional protection derives, not from any special status of members of the press as such, but rather because "[i]n seeking out the news the press . . . acts as an agent of the public at large," each individual member of which cannot obtain for himself "the information needed for the intelligent discharge of his political responsibilities." Id., at 863, 94 S.Ct., at 2821. Cf. First National Bank of Boston v. Bellotti, 435 U.S. 765, 776-778, 98 S.Ct. 1407, 1415-1417, 55 L.Ed.2d 707 (1978).
61
The right of access to courtroom proceedings, of course, is not absolute. It is limited both by the constitutional right of defendants to a fair trial, see, e. g., Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and by the needs of government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants. Cf. Procunier v. Martinez, 416 U.S. 396, 412-413, 94 S.Ct. 1800, 1810-1811, 40 L.Ed.2d 224 (1974); Houchins v. KQED, Inc., 438 U.S. 1, 34-35, 98 S.Ct. 2588, 2607-2609, 57 L.Ed.2d 553 (1978) (STEVENS, J., dissenting); Saxbe v. Washington Post Co., supra, 417 U.S., at 872-873, 94 S.Ct., at 2825-2826 (dissenting opinion). The task of determining the application of these limitations in each individual trial necessarily falls almost exclusively upon the trial court asked to exclude members of the press and public from the courtroom. For it would be entirely impractical to require criminal proceedings to cease while appellate courts were afforded an opportunity to review a trial court's decision to close proceedings. It is all the more important, therefore, that this Court identify for the guidance of trial courts the constitutional standard by which they are to judge whether closure is justified, and the minimal procedure by which this standard is to be applied.2
62
In cases such as this, where competing constitutional rights must be weighed in the context of a criminal trial, the often difficult question is whether unrestrained exercise of First Amendment rights poses a serious danger to the fairness of a defendant's trial. "As we stressed in Estes, the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged." Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507, 1520, 16 L.Ed.2d 600 (1966) (footnote omitted); see Estes v. Texas, supra, 387 U.S., at 539, 85 S.Ct., at 1631. In striking this balance there are a number of considerations to be weighed. In Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), we concluded that there is a strong presumption against prohibiting members of the press from publishing information already in their possession concerning courtroom proceedings. Excluding all members of the press from the courtroom, however, differs substantially from the "gag order" at issue in Nebraska Press, as the latter involved a classic prior restraint, "one of the most extraordinary remedies known to our jurisprudence," id., at 562, 96 S.Ct., at 2804, and applied to information irrespective of its source. In the present case, on the other hand, we are confronted with a trial court's order that in effect denies access only to one, albeit important, source. It does not in any way tell the press what it may and may not publish.
63
Despite these differences between Nebraska Press and the present case, petitioner asks the Court to impose a severe burden upon defendant seeking closure. The approach taken in Mr. Justice BLACKMUN's opinion would grant this request, limiting closure to those cases where "it is strictly and inescapably necessary in order to protect the fair-trial guarantee." See post, at 440. It is difficult to imagine a case where closure could be ordered appropriately under this standard. A rule of such apparent inflexibility could prejudice defendants' rights and disserve society's interest in the fair and prompt disposition of criminal trials. As a result of pretrial publicity, defendants could be convicted after less than the meticulously fair trial that the Constitution demands. There also could be an increase in reversal of convictions on appeal. In either event, it seems to me that the approach suggested by petitioner would not adequately safeguard the defendant's right to a fair trial, a right of equal constitutional significance to the right of access. The better course would be a more flexible accommodation between First and Sixth Amendment rights which are protected from state-law interference by the Fourteenth Amendment an accommodation under which neither defendants' rights nor the rights of members of the press and public should be made subordinate. Cf. Branzburg v. Hayes, 408 U.S. 665, 709-710, 92 S.Ct. 2646, 2670, 2671, 33 L.Ed.2d 626 (1972) (POWELL, J., concurring). The question for the trial court, therefore, in considering a motion to close a pretrial suppression hearing is whether a fair trial for the defendant is likely to be jeopardized by publicity, if members of the press and public are present and free to report prejudicial evidence that will not be presented to the jury.
64
Although the strict standard of Nebraska Press is not applicable to decisions concerning closure of courtroom proceedings, much of the discussion in that case of the factors to be considered in making decisions with respect to "gag orders" is relevant to closure decisions. Thus, where a defendant requests the trial court to exclude the public, it should consider whether there are alternative means reasonably available by which the fairness of the trial might be preserved without interfering substantially with the public's interest in prompt access to information concerning the administration of justice. Similarly, because exclusion is justified only as a protection of the defendant's right to a fair trial and the State's interest in confidentiality, members of the press and public objecting to the exclusion have the right to demand that it extend no farther than is likely to achieve these goals. Thus, for example, the trial court should not withhold the transcript of closed courtroom proceedings past the time when no prejudice is likely to result to the defendant or the State from its release.
65
It is not enough, however, that trial courts apply a certain standard to requests for closure. If the constitutional right of the press and public to access is to have substance, representatives of these groups must be given an opportunity to be heard on the question of their exclusion. But this opportunity extends no farther than the persons actually present at the time the motion for closure is made, for the alternative would require substantial delays in trial and pretrial proceedings while notice was given to the public. Upon timely objection to the granting of the motion, it is incumbent upon the trial court to afford those present a reasonable opportunity to be heard on the question whether the defendant is likely to be deprived of a fair trial if the press and public are permitted to remain in attendance. At this hearing, it is the defendant's responsibility as the moving party to make some showing that the fairness of his trial likely will be prejudiced by public access to the proceedings. Similarly, if the State joins in the closure request, it should be given the opportunity to show that public access would interfere with its interests in fair proceedings or preserving the confidentiality of sensitive information. On the other hand, members of the press and public who object to closure have the responsibility of showing to the court's satisfaction that alternative procedures are available that would eliminate the dangers shown by the defendant and the State.
66
The question, then, is whether the First Amendment right of access outlined above was adequately respected in the present case. As the Court notes, the reporter ordered from the courtroom upon the motion of the defendants did not object to the closure order until the suppression hearing was all but completed. Petitioner's right to be heard on the question of closure, therefore, was not invoked until the closure was an accomplished and irrevocable fact.3 Upon petitioner's request, counsel for the newspaper was allowed within a reasonable time after the request to present written and oral arguments to the court challenging its closure order.
67
At this oral argument, the trial court applied a standard similar to that set forth above. It first reviewed for petitioner's counsel the factual basis for its finding that closure had been necessary to preserve the fairness of the defendants' trial. In the court's view, the nature of the evidence to be considered at the hearing, the young age of two of the defendants, and the extent of the publicity already given the case had indicated that an open hearing would substantially jeopardize the fairness of the defendants' subsequent trial. Moreover, the court emphasized the fact that the prosecutor, as well as each of the defense lawyers, had endorsed the closure motion. On the other hand, the court found that petitioner had not presented any basis for changing the court's views on the need for closure. Throughout oral argument, the court recognized the constitutional right of the press and public to be present at criminal proceedings. It concluded, however, that in the "unique situation" presented to it, closure had been appropriate, and that the seal it had placed upon the transcript of the suppression hearing should continue in effect.4
68
In my view, the procedure followed by the trial court fully comported with that required by the Constitution. Moreover, the substantive standard applied was essentially correct, and, giving due deference to the proximity of the trial judge to the surrounding circumstances, I cannot conclude that it was error in this case to exclude petitioner's reporter. I therefore agree that the judgment of the New York Court of Appeals must be affirmed.
69
Mr. Justice REHNQUIST, concurring.
70
While I concur in the opinion of the Court, I write separately to emphasize what should be apparent from the Court's Sixth Amendment holding and to address the First Amendment issue that the Court appears to reserve.
71
The Court today holds, without qualification, that "members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials." Ante, at 391. In this case, the trial judge closed the suppression hearing because he concluded that an open hearing might have posed a danger to the defendants' ability to receive a fair trial. Ante, at 376. But the Court's recitation of this fact and its discussion of the need to preserve the defendant's right to a fair trial, ante, at 378-379, should not be interpreted to mean that under the Sixth Amendment a trial court can close a pretrial hearing or trial only when there is a danger that prejudicial publicity will harm the defendant.1 To the contrary, since the Court holds that the public does not have any Sixth Amendment right of access to such proceedings, it necessarily follows that if the parties agree on a closed proceeding, the trial court is not required by the Sixth Amendment to advance any reason whatsoever for declining to open a pretrial hearing or trial to the public. "There is no question that the Sixth Amendment permits and even presumes open trials as a norm." Ante, at 385. But, as the Court today holds, the Sixth Amendment does not require a criminal trial or hearing to be opened to the public if the participants to the litigation agree for any reason, no matter how jurisprudentially appealing or unappealing, that it should be closed.
72
The Court states that it may assume "arguendo " that the First and Fourteenth Amendments guarantee the public a right of access to pretrial hearings in some situations, because it concludes that in this case this "putative right was given all appropriate deference." Ante, at 392. Despite the Court's seeming reservation of the question whether the First Amendment guarantees the public a right of access to pretrial proceedings, it is clear that this Court repeatedly has held that there is no First Amendment right of access in the public or the press to judicial or other governmental proceedings. See post, at 411; Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 1317, 55 L.Ed.2d 570 (1978); Saxbe v. Washington Post Co., 417 U.S. 843, 850, 94 S.Ct. 2811, 2815, 41 L.Ed.2d 514 (1974); Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974); Branzburg v. Hayes, 408 U.S. 665, 684-685, 92 S.Ct. 2646, 2658-2659, 33 L.Ed.2d 626 (1972); Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 1280-1281, 14 L.Ed.2d 179 (1965); Estes v. Texas, 381 U.S. 532, 539-540, 85 S.Ct. 1628, 1631-1632, 14 L.Ed.2d 543 (1965). See also Houchins v. KQED, Inc., 438 U.S. 1, 9-15, 98 S.Ct. 2588, 2594-2597, 57 L.Ed.2d 553 (1978) (opinion of BURGER, C. J., joined by WHITE and REHNQUIST, JJ.); id., at 16 (STEWART, J., concurring). "The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government, nor do they guarantee the press any basic right of access superior to that of the public generally. The Constitution does no more than assure the public and the press equal access once government has opened its doors." Ibid. Thus, this Court emphatically has rejected the proposition advanced in Mr. Justice POWELL's concurring opinion, ante, at 400-401, that the First Amendment is some sort of constitutional "sunshine law" that requires notice, an opportunity to be heard, and substantial reasons before a governmental proceeding may be closed to the public and press. Because this Court has refused to find a First Amendment right of access in the past, lower courts should not assume that after today's decision they must adhere to the procedures employed by the trial court in this case or to those advanced by Mr. Justice POWELL in his separate opinion in order to avoid running afoul of the First Amendment. To the contrary, in my view and, I think, in the view of a majority of this Court, the lower courts are under no constitutional constraint either to accept or reject those procedures. They remain, in the best tradition of our federal system, free to determine for themselves the question whether to open or close the proceeding.2 Hopefully, they will decide the question by accommodating competing interests in a judicious manner. But so far as the Constitution is concerned, the question is for them, not us, to resolve.
73
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice MARSHALL join, concurring in part and dissenting in part.
74
I concur in Part II of the Court's opinion but I dissent from that opinion's subsequent Parts. I also cannot join the Court's phrasing of the "question presented," ante, at 370-371, or its distress and concern with the publicity the Clapp murder received in the Seneca County, N. Y., area.
75
Today's decision, as I view it, is an unfortunate one. I fear that the Court surrenders to the temptation to overstate and overcolor the actual nature of the pre-August 7, 1976, publicity; that it reaches for a strict and flat result; and that in the process it ignores the important antecedents and significant developmental features of the Sixth Amendment. The result is an inflexible per se rule, as Mr. Justice REHNQUIST so appropriately observes in his separate concurrence, ante, at 403-404. That rule is to the effect that if the defense and the prosecution merely agree to have the public excluded from a suppression hearing, and the trial judge does not resist—as trial judges may be prone not to do, since nonresistance is easier than resistance—closure shall take place, and there is nothing in the Sixth Amendment that prevents that happily agreed upon event. The result is that the important interests of the public and the press (as a part of that public) in open judicial proceedings are rejected and cast aside as of little value or significance.
76
Because I think this easy but wooden approach is without support either in legal history of in the intendment of the Sixth Amendment, I dissent.
77
* The Court's review of the facts, ante, at 371-377, does not face up to the placid, routine, and innocuous nature of the news articles about the case and, indeed, their comparative infrequency. I attempt to supply what is missing:
78
The reporting by both newspapers on August 3 of the filing of the indictments was the first time either of the two papers had carried any comment about the case since July 25, nine days before. On August 6, each paper carried a story reporting the arraignments of Greathouse and Jones on the preceding day. Thereafter, no story about the Clapp case appeared in petitioner's papers until the suppression hearing on November 4. Thus, for 90 days preceding that hearing there was no publicity whatsoever. From July 20, when the first story appeared, until August 6, a period of 18 days, 14 different articles were printed in the two papers. Because the evening paper usually reprinted or substantially duplicated the morning story, there were articles on only 7 different days during this 18-day period, with the evening story containing little that differed from the morning story on the 5 days that accounts appeared in both papers.
79
Furthermore, there can be no dispute whatsoever that the stories consisted almost entirely on straightforward reporting of the facts surrounding the investigation of Clapp's disappearance, and of the arrests and charges. The stories contained no "editorializing" and nothing that a fairminded person could describe as sensational journalism. Only one picture appeared; it was a photograph of Clapp that accompanied the first story printed by the Times-Union. There is nothing in the record to indicate that the stories were placed on the page or within the paper so as to play up the murder investigation. Headlines were entirely factual. The stories were relatively brief. They appeared only in connection with a development in the investigation, and they gave no indication of being published to sustain popular interest in the case.
80
The motions to suppress came on before Judge DePasquale on November 4. Despite the absence of any publicity in the newspapers for three months, counsel for both defendants, at the commencement of the hearing and without previously having indicated their intention so to do, asked for the exclusion of all members of the public and press present in the courtroom. They urged as grounds for their motions that "we are going to take evidentiary matters into consideration here that may or may not be brought forth subsequently at a trial." App. 4. After being reminded by the court that the defendants had a constitutional right to a public trial and that such exclusion "does abridge the rights, the constitutional rights of the defendants," Greathouse's attorney, joined by Jones' lawyer, stated: 'I fully understand that, your Honor, but this is not a trial, it is a hearing, and I think the dilatorious [sic ] effects far outweigh the constitutional rights." Id., at 5. The court then turned to the District Attorney. The prosecutor indicated that he did not wish to be heard with respect to the motion and said only: "I stated earlier that I thought it was up to the defense, and I would not oppose what they wished to do." Ibid. Thereupon the court, without further inquiry, granted the motion for closure. It said that "it is not the trial of the matter" and that "matters may come up in the testimony of the People's witnesses that may be prejudicial to the defendant." Id., at 6.
81
We therefore have a situation where the two defense attorneys suddenly and without notice moved that the suppression hearing be closed, and where the prosecutor, obviously taken off guard and having no particularly strong feeling, or any considered position, acquiesced. The court, to its credit, was sensitive about the rights of the defendants to a public proceeding, even though it thought "it is not the trial of the matter." The court obviously was not impressed with any brooding presence of possible prejudicial publicity. Its comment was only that "evidentiary matters may come up . . . that may be prejudicial." It is difficult to imagine anything less sensational in a murder context.
82
Yet this is all that the Court possesses to justify its description of the question presented as one in the context of an agreement by the accused, the prosecutor, and the trial judge to have closure "in order to assure a fair trial," ante, at 371, and the hearing as one where, ante, at 375, "defense attorneys argued that the unabated buildup of adverse publicity had jeopardized the ability of the defendants to receive a fair trial."
83
I find little in the record that tends to support either of those descriptions of such serious consequence. There is no reference to or inference of an "unabated buildup of adverse publicity." All the defense attorneys spoke of were "the dilatorious [sic ] effects" of "evidentiary matters . . . that may or may not be brought forth subsequently at a trial." App. 5, 4. Mr. Justice REHNQUIST notes this thin concern. Ante, at 403-404. The defense lawyers were representing their clients, of course, and perhaps were properly overcautious, but they certainly favored the court with nothing about "unabated buildup of adverse publicity" that must be prevented "in order to assure a fair trial." In fairness to the Court today, its colorful allusions to what it assumes took place when the motions were presented on November 4 may be attributable to comments in the opinion of the majority of the New York Court of Appeals:1
84
"At the commencement of a pretrial suppression hearing, defense attorneys argued that an unabated buildup of adverse publicity had already jeopardized their clients' ability to receive a fair trial." 43 N.Y.2d 370, 375, 401 N.Y.S.2d 756, 758, 372 N.E.2d 544, 546.
85
"The details, however, were not known and public curiosity was intense." Id., at 381, 401 N.Y.S.2d, at 762, 372 N.E.2d, at 550.
86
The New York majority went on to rule that the presumption of closure was raised in this case because the public knew that respondents Greathouse and Jones "had been caught 'red-handed' by Michigan police with fruits of the crime," and because it was "widely known" that they "had made incriminating statements before being returned to" New York. Ibid., 401 N.Y.S.2d, at 762, 372 N.E.2d, at 550. And the court found that the level of "legitimate public concern" necessary to overcome the presumption of closure had not been demonstrated:
87
"Widespread public awareness kindled by media saturation does not legitimize mere curiosity. Here the public's concern was not focused on prosecutorial or judicial accountability; irregularities, if any, had occurred out of State. The interest of the public was chiefly one of active curiosity with respect to a notorious local happening." Ibid., 401 N.Y.S.2d, at 763, 372 N.E.2d, at 550.
88
With all respect, it is difficult for me to extract all of that from the casual comments made at the hearing before Judge DePasquale. Cf. People v. Jones, 47 N.Y.2d 409, 418 N.Y.S.2d 359, 391 N.E.2d 1335 (1979).
II
89
This Court confronts in this case another aspect of the recurring conflict that arises whenever a defendant in a criminal case asserts that his right to a fair trial clashes with the right of the public in general, and of the press in particular, to an open proceeding. It has considered other aspects of the problem in deciding whether publicity was sufficiently prejudicial to have deprived the defendant of a fair trial. Compare Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), with Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). And recently it examined the extent to which the First and Fourteenth Amendments protect news organizations' rights to publish, free from prior restraint, information learned in open court during a pretrial suppression hearing. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). But the Court has not yet addressed the precise issue raised by this case: whether and to what extent the Constitution prohibits the States from excluding, at the request of a defendant, members of the public from such a hearing. See id., at 564 n. 8, 96 S.Ct., at 2805 n. 8, id., at 584 n. 11, 96 S.Ct., at 2814 n. 11 (BRENNAN, J., concurring in judgment); Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1308 n. 3, 95 S.Ct. 1, 5 n. 3, 42 L.Ed.2d 17 (1974) (POWELL, J., in chambers).
90
It is clear that this case does not involve the type of prior restraint that was in issue in cases like Nebraska Press. Neither the County Court nor the Court of Appeals restrained publication of, or comment upon, information already known to the public or the press, or about the case in general. The issue here, then, is not one of prior restraint on the press but is, rather, one of access to a judicial proceeding.
91
Despite Mr. Justice POWELL's concern, ante, p. 397, this Court heretofore has not found, and does not today find, any First Amendment right of access to judicial or other governmental proceedings. See, e. g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 608-610, 98 S.Ct. 1306, 1317-1318, 55 L.Ed.2d 570 (1978); Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974). One turns then, instead, to that provision of the Constitution that speaks most directly to the question of access to judicial proceedings, namely, the public-trial provision of the Sixth Amendment.
A.
92
The familiar language of the Sixth Amendment reads: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." This provision reflects the tradition of our system of criminal justice that a trial is a "public event" and that "[w]hat transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947). And it reflects, as well, "the notion, deeply rooted in the common law, that 'justice must satisfy the appearance of justice.' " Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 1042, 4 L.Ed.2d 989 (1960), quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954).
93
More importantly, the requirement that a trial of a criminal case be public embodies our belief that secret judicial proceedings would be a menace to liberty. The public trial is rooted in the "principle that justice cannot survive behind walls of silence," Sheppard v. Maxwell, 384 U.S., at 349, 86 S.Ct., at 1515, and in the "traditional Anglo-American distrust for secret trials," In re Oliver, 333 U.S. 257, 268, 68 S.Ct. 499, 505, 92 L.Ed. 682 (1948). This Nation's accepted practice of providing open trials in both federal and state courts "has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." Id., at 270, 68 S.Ct., at 506.
94
The public-trial guarantee, moreover, ensures that not only judges but all participants in the criminal justice system are subjected to public scrutiny as they conduct the public's business of prosecuting crime." This publicity "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., at 350, 86 S.Ct., at 1515. Publicity "serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice." Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1044-45, 43 L.Ed.2d 328 (1975). "The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions . . . are without question events of legitimate concern to the public." Ibid. Indeed, such information is "of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business." Id., at 495, 95 S.Ct., at 1046.2 Even in those few cases in which the Court has permitted limits on courtroom publicity out of concern for prejudicial coverage, it has taken care to emphasize that publicity of judicial proceedings "has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field." Sheppard v. Maxwell, 384 U.S., at 350, 86 S.Ct., at 1515. And in Estes v. Texas, 381 U.S. 532, 541, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965), the Court found that it "is true that the public has the right to be informed as to what occurs in its courts. Mr. Justice STEWART, the author of the Court's opinion here, stated in dissent in Estes, id., at 614-615, 85 S.Ct., at 1676: "The suggestion that there are limits upon the public's right to know what goes on in the courts causes me deep concern." The importance we as a Nation attach to the public trial is reflected both in its deep roots in the English common law and in its seemingly universal recognition in this country since the earliest times. When In re Oliver was decided in 1948, the Court was "unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country," 333 U.S., at 266, 68 S.Ct., at 504 (footnote omitted), with the exception of cases in courts-martial and the semiprivate conduct of juvenile court proceedings. Id., at 266 n. 12, 68 S.Ct., at 504 n. 12. Nor could it uncover any record "of even one such secret criminal trial in England since abolition of the Court of Star Chamber in 1641." Ibid. This strong tradition of publicity in criminal proceedings, and the States' recognition of the importance of a public trial, led the Court in In re Oliver to conclude that the Sixth Amendment's guarantee of a public trial as applied to the States through the Fourteenth Amendment, proscribed conviction through the type of secret process at issue in that case.
95
The public-trial concept embodied in the Sixth Amendment remains a fundamental and essential feature of our system of criminal justice in both the federal courts and in the state courts.3 The Due Process Clause of the Fourteenth Amendment requires that in criminal cases the States act in conformity with the public-trial provision of the Sixth Amendment. Duncan v. Louisiana, 391 U.S. 145, 148, 88 S.Ct. 1444, 1446-1447, 20 L.Ed.2d 491 (1968); Argersinger v. Hamlin, 407 U.S. 25, 28, 92 S.Ct. 2006, 2008, 32 L.Ed.2d 530 (1972).
B
96
By its literal terms, the Sixth Amendment secures the right to a public trial only to "the accused." And in this case, the accused were the ones who sought to waive that right, and to have the public removed from the pretrial hearing in order to guard against publicity that possibly would be prejudicial to them. The Court is urged, accordingly, to hold that the decision of respondents Greathouse and Jones to submit to a private hearing is controlling.
97
The Court, however, previously has recognized that the Sixth Amendment may implicate interests beyond those of the accused. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for example, the Court unanimously found this to be so with respect to the right to a speedy trial. "In addition to the general concern that all accused persons be treated according to decent and fair procedures, 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." Id., at 519, 92 S.Ct., at 2186. This separate public interest led the Court to reject a rule that would have made the defendant's assertion of his speedy-trial right the critical factor in deciding whether the right had been denied for a rule depending entirely on the defendant's demand failed to take into account that "society has a particular interest in bringing swift prosecutions." Id., at 527, 92 S.Ct., at 2190.
98
The same is true of other provisions of the Sixth Amendment. In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), the Court rejected a contention that, since the constitutional right to a jury trial was the right of the accused, he had an absolute right to be tried by a judge alone if he considered a bench trial to be to his advantage. Rejecting a mechanistic waiver approach, the Court reviewed the history of trial by jury at English common law and the practice under the Constitution. The common law did not indicate that the accused had a right to compel a bench trial. Although there were isolated instances where such a right had been recognized in the American Colonies, the Court could find no "general recognition of a defendant's right to be tried by the court instead of by a jury. Indeed, if there had been recognition of such a right, it would be difficult to understand why Article III and the Sixth Amendment were not drafted in terms which recognized an option." Id., at 31, 85 S.Ct., at 788. Noting that practice under the Constitution similarly established no independent right to a bench trial, the Court held that neither the jury trial provision in Art. III, § 2,4 nor the Sixth Amendment empowered an accused to compel the opposite of what he was guaranteed specifically by the Constitution.
99
The Court in Singer recognized that in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), it had held that a defendant could waive his jury trial right, but it held that a proffered waiver need not be given effect in all cases. Quoting Patton, 281 U.S., at 312, 50 S.Ct., at 263, the Court observed: "Trial by jury has been established by the Constitution as the 'normal and . . . preferable mode of disposing of issues of fact in criminal cases.' " 380 U.S., at 35, 85 S.Ct., at 790. The Court rejected "the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process." Id., at 36, 85 S.Ct., at 790. Rather, the Court said, a defendant's "only constitutional right concerning the method of trial is to an impartial trial by jury." Ibid. Accordingly, the Court concluded that the Constitution was no impediment to conditioning the grant of a request for a bench trial upon the consent of the court and the Government.
100
In Singer, the Court also recognized that similar reasoning is applicable to other provisions to the Sixth Amendment. "The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right." Id., at 34-35, 85 S.Ct., at 790. For example, although the accused "can waive his right to be tried in the State and district where the crime was committed, he cannot in all cases compel transfer of the case to another district." Id., at 35, 85 S.Ct., at 790. While he "can waive his right to be confronted by the witnesses against him," he cannot thereby compel the prosecution "to try the case by stipulation." And, most relevant here, "although a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial." Ibid.
101
Indeed, in only one case, apparently, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), has this Court ever inferred from the Sixth Amendment a right that fairly may be termed the "opposite" of an explicit guarantee. In Faretta, the Court found that not only did the Amendment secure the assistance of counsel to the defendant in a criminal prosecution, but, by inference, it also granted him the right to self-representation. In so ruling, however, the Court was careful to stress that it followed Singer § holding that the ability to waive a Sixth Amendment right did not carry with it the automatic right to insist upon its opposite. "The inference of rights is not, of course, a mechanical exercise." 422 U.S., at 819 n. 15, 95 S.Ct., at 2533 n. 15. By inferring the existence of a right to self-representation, the Court did not mean to "suggest that this right arises mechanically from a defendant's power to waive the right to the assistance of counsel. . . . on the contrary, the right must be independently found in the structure and history of the constitutional text." Id., at 819-820, n. 15, 95 S.Ct., at 2533 n. 15. Following the approach of Singer, then, the Court found that "the structure of the Sixth Amendment, as well as . . . the English and colonial jurisprudence from which the Amendment emerged," 422 U.S., at 818, 95 S.Ct., at 2532, established the existence of an independent right of self-representation.
C
102
It is thus clear from Singer, Barker, and Faretta that the fact the Sixth Amendment casts the right to a public trial in terms of the right of the accused is not sufficient to permit the inference that the accused may compel a private proceeding simply by waiving that right. Any such right to compel a private proceeding must have some independent basis in the Sixth Amendment. In order to determine whether an independent basis exists, we should examine, as the Court did in Singer, the common-law and colonial antecedents of the public-trial provision as well as the original understanding of the Sixth Amendment. If no such basis is found, we should then turn to the function of the public trial in our system so that we may decide under what circumstances, if any, a trial court may give effect to a defendant's attempt to waive his right.
103
1. The Court, in In re Oliver, 333 U.S., at 266, 68 S.Ct., at 504, recognized that this Nation's "accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage." Study of that heritage reveals that the tradition of conducting the proceedings in public came about as an inescapable concomitant of trial by jury, quite unrelated to the rights of the accused, and that the practice at common law was to conduct all criminal proceedings in public.
104
Early Anglo-Saxon criminal proceedings were "open-air meetings of the freemen who were bound to attend them." F. Pollock, The Expansion of the Common Law 140 (1904) (hereinafter Pollock). Criminal trials were by compurgation or by ordeal, and took place invariably before the assembled community, many of whom were required to attend. 1 W. Holdsworth, A History of English Law 7-24 (4th ed. 1927) (hereinafter Holdsworth). This Anglo-Saxon tradition of conducting a judicial proceeding "like an ill-managed public meeting," Pollock 30, persisted after the Conquest, when the Norman kings introduced in England the Frankish system of conducting inquests by means of a jury. Wherever royal justice was introduced, the jury system accompanied it, and both spread rapidly throughout England in the years after 1066. 1 Holdsworth 316. The rapid spread of royal courts led to the replacement of older methods of trial, which were always public, with trial by jury with little procedural change. The jury trial "was simply substituted for [older methods], and was adapted with as little change as possible to its new position." Id., at 317. This substitution of royal justice for traditional law served the Crown's interests by "enlarging the king's jurisdiction and bringing well-earned profit in fines and otherwise to the king's exchequer, and the best way of promoting those ends was to develop the institution, or let it develop itself, along the lines of least resistance." Pollock 40.
105
Thus, the common law from its inception was wedded to the Anglo-Saxon tradition of publicity, and the "ancient rul[e that c]ourts of justice are public," id., at 51, was in turn strengthened by the hegemony the royal courts soon established over the administration of justice. Bentham noted that by this accommodation of the common law to the AngloSaxon practice of holding open courts, "publicity . . . became a natural, and, as good fortune would have it, at length an inseparable, concomitant" of English justice. 1 J. Bentham, The Rationale of Judicial Evidence 584-585 (1827).
106
Publicity thus became intrinsically associated with the sittings of the royal courts. Coke noted that the very words "In curia Domini Regis" ("In the King's Court"), in the Statutum de Marleberge, ch. 1, enacted in 1267, 52 Hen. 3, indicated public proceedings. 2 E. Coke, Institutes of the Laws of England 103 (6th ed. 1681).5
107
This and other commentary6 indicate that by the 17th century the concept of a public trial was firmly established under the common law. Indeed, there is little record, if any, of secret proceedings, criminal or civil, having occurred at any time in known English history. Apparently, not even the Court of Star Chamber, the name of which has been linked with secrecy, conducted hearings in private. 5 Holdsworth 156, and nn. 5 and 7, and 163; Radin, The Right to a Public Trial, 6 Temp.L.Q. 381, 386-387 (1932). Rather, the unbroken tradition of the English common law was that criminal trials were conducted "openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so manie as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide." T. Smith, De Republica Anglorum 101 (Alston ed. 1972).
108
In the light of this history, it is most doubtful that the tradition of publicity ever was associated with the rights of the accused. The practice of conducting the trial in public was established as a feature of English justice long before the defendant was afforded even the most rudimentary rights. For example, during the century preceding the English Civil War, the defendant was kept in secret confinement and could not prepare a defense. He was not provided with counsel either before or at the trial. He was given no prior notice of the charge or evidence against him. He probably could not call witnesses on his behalf. Even if he could, he had no means to procure their attendance. Witnesses were not necessarily confronted with the prisoner. Document originals were not required to be produced. There were no rules of evidence. The confessions of accomplices were admitted against each other and regarded as specially cogent evidence. And the defendant was compelled to submit to examination. 1 J. Stephen, A History of the Criminal Law of England 350 (1883). Yet the trial itself, without exception, was public.
109
It is not surprising, therefore, that both Hale and Blackstone, in identifying the function of publicity at common law, discussed the open-trial requirement not in terms of individual liberties but in terms of the effectiveness of the trial process. Each recognized publicity as an essential of trial at common law. And each emphasized that the requirement that evidence be given in open court deterred perjury, since "a witness may frequently depose that in private, which he will be ashamed to testify in a public and solemn tribunal." 3 W. Blackstone, Commentaries *373. See M. Hale, The History of the Common Law of England 343, 345 (6th ed. 1820). Similarly, both recognized that publicity was an effective check on judicial abuse, since publicity made it certain that "if the judge be PARTIAL, his partiality and injustice will be evident to all by-standers." Id., at 344. See 3 W. Blackstone, Commentaries *372.7
110
In the same vein, Bentham stressed that publicity was "the most effectual safeguard of testimony, and of the decisions depending on it; it is the soul of justice; it ought to be extended to every part of the procedure, and to all causes." J. Bentham, A Treatise On Judicial Evidence 67 (1825). Bentham believed that, above all, publicity was the most effectual safeguard against judicial abuse, without which all other checks on misuse of judicial power became ineffectual. 1 J. Bentham, The Rationale of Judicial Evidence 525 (1827). And he contended that publicity was of such importance to the administration of justice, especially in criminal cases, that it should not be dispensed with even at the request of the defendant. "The reason is . . . there is a party interested (viz. the public at large) whose interest might, by means of the privacy in question, and a sort of conspiracy, more or less explicit, between the other persons concerned (the judge included) be made a sacrifice." Id., at 576-577.
111
This English common-law tradition concerning public trials out of which the Sixth Amendment provision grew is not made up of "shreds of English legal history and early state constitutional and statutory provisions," see Faretta v. California, 422 U.S., at 843, 95 S.Ct., at 2545 (dissenting opinion describing the right of self-representation), pieced together to produce the desired result. Whatever may be said of the historical analysis of other Sixth Amendment provisions, history here reveals an unbroken tradition at English common law of open judicial proceedings in criminal cases. In publicity, we "have one tradition, at any rate, which has persisted through all changes" from Anglo-Saxon times through the development of the modern common law. Pollock 31-32. See E. Jenks, The Book of English Law 73-74 (6th ed. 1967). There is no evidence that criminal trials of any sort ever were conducted in private at common law, whether at the request of the defendant or over his objection. And there is strong evidence that the public trial, which developed before other procedural rights now routinely afforded the accused, widely was perceived as serving important social interests, relating to the integrity of the trial process, that exist apart from, and conceivably in opposition to, the interests of the individual defendant. Accordingly, I find no support in the common-law antecedents of the Sixth Amendment public-trial provision for the view that the guarantee of a public trial carries with it a correlative right to compel a private proceeding.8
112
2. This English common-law view of the public trial early was transplanted to the American Colonies, largely through the influence of the common-law writers whose views shaped the early American legal systems. "Coke's Institutes were read in the American Colonies by virtually every student of the law," Klopfer v. North Carolina, 386 U.S. 213, 225, 87 S.Ct. 988, 994, 18 L.Ed.2d 1 (1967), and no citation is needed to establish the impact of Hale and Blackstone on colonial legal thought. Early colonial charters reflected the view that open proceedings were an essential quality of a court of justice, and they cast the concept of a public trial in terms of a characteristic of the system of justice, rather than of a right of the accused. Indeed, the first public-trial provision to appear in America spoke in terms of the right of the public, not the accused, to attend trials:
113
"That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner." Concessions and Agreements of West New Jersey (1677), ch. XXIII, quoted in 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971) (hereinafter Schwartz).
114
Similarly, the Pennsylvania Frame of Government of 1682, which Professor Schwartz described as, "[i]n many ways, [one of] the most influential of the Colonial documents protecting individual rights," 1 Schwartz 130, provided that in William Penn's colony "all courts shall be open." Id., at 140.
115
This practice of conducting judicial proceedings in criminal cases in public took firm hold in all the American Colonies. There is no evidence that any colonial court conducted criminal trials behind closed doors or that any recognized the right of an accused to compel a private trial.
116
Neither is there any evidence that casting the public-trial concept in terms of a right of the accused signaled a departure from the common-law practice by granting the accused the power to compel a private proceeding. The first provision to speak of the public trial as an entitlement of the accused apparently was that in ¶ IX of the Pennsylvania Declaration of Rights of 1776. It said that "in all prosecutions for criminal offences, a man hath a right to . . . a speedy public trial." See 1 Schwartz 265. The provision was borrowed almost verbatim from the Virginia Declaration of Rights, adopted earlier the same year, with one change: the word "public" was added. Virginia's Declaration had provided only that the accused "hath a right to . . . a speedy trial." See id., 235. It is doubtful that, by adding this single word, Pennsylvania intended to depart from its historic practice by creating a right waivable by the defendant, for at the time its Declaration of Rights was adopted, Pennsylvania also adopted its Constitution of 1776, providing, in § 26, that "[a]ll courts shall be open." See 1 Schwartz 271. And there is no evidence that after 1776 Pennsylvania departed from earlier practice, either by conducting trials in private or by recognizing a power in the accused to compel a nonpublic proceeding.9
117
Similarly, there is no indication that the First Congress, in proposing what became the Sixth Amendment, meant to depart from the common-law practice by creating a power in an accused to compel a private proceeding. The Constitution as originally adopted, of course, did not contain a public-trial guarantee. And though several States proposed amendments to Congress along the lines of the Virginia Declaration, only New York mentioned a "public" trial. See E. Dumbauld, The Bill of Rights 173-205 and, specifically, 190 (1957); 1 Elliott's Debates 328 (2d ed. 1836). But New York did not follow Virginia's language by casting the right as one belonging only to the accused; it urged rather that Congress should propose an amendment providing that the "trial should be speedy, public, and by an impartial jury . . .." Amendments Proposed by New York (1788), quoted in 1 Elliot's Debates, at 328.
118
I am thus persuaded that Congress, modeling the proposed amendment on the cognate provision in the Virginia Declaration as many States had urged, did merely what Pennsylvania had done in 1776, namely, added the word "public" to the Virginia language without at all intending thereby to create a correlative right to compel a private proceeding. Indeed, in light of the settled practice at common law, one may also say here that "if there had been recognition of such a right, it would be difficult to understand why . . . the Sixth Amendment [was] not drafted in terms which recognized an option." Singer v. United States, 380 U.S., at 31, 85 S.Ct., at 788. And, to use the language of the Court in Faretta v. California, 422 U.S., at 832, 95 S.Ct., at 2539: "If anyone had thought that the Sixth Amendment as drafted," departed from the common-law principal of publicity in criminal proceedings, "there would undoubtedly have been some debate or comment on the issue. But there was none." Mr. Justice Story, writing when the adoption of the Sixth Amendment was within the memory of living man, noted that "in declaring, that the accused shall enjoy the right to a speedy and public trial . . . [the Sixth Amendment] does but follow out the established course of the common law in all trials for crimes. The trial is always public." 3 J. Story, Commentaries on the Constitution of the United States 662 (1833).
119
I consequently find no evidence in the development of the public-trial concept in the American Colonies and in the adoption of the Sixth Amendment to indicate that there was any recognition in this country, any more than in England, of a right to a private proceeding or a power to compel a private trial arising out of the ability to waive the grant of a public one. I shall not indulge in a mere mechanical inference that, by phrasing the public trial as one belonging to the accused, the Framers of the Amendment must have meant the accused to have the power to dispense with publicity.
120
3. I thus conclude that there is no basis in the Sixth Amendment for the suggested inference. I also find that, because there is a societal interest in the public trial that exists separately from, and at times in opposition to, the interests of the accused, cf. Barker v. Wingo, 407 U.S., at 519, 92 S.Ct., at 2186, a court may give effect to an accused's attempt to waive his public-trial right only in certain circumstances.
121
The courts and the scholars of the common law perceived the public-trial tradition as one serving to protect the integrity of the trial and to guard against partiality on the part of the court. The same concerns are generally served by the public trial today. The protection against perjury which publicity provides, and the opportunity publicity offers to unknown witnesses to make themselves known, do not necessarily serve the defendant. See 6 J. Wigmore, Evidence § 1834 (Chadbourn rev. 1976) (hereinafter Wigmore). The public has an interest in having criminal prosecutions decided on truthful and complete records, and this interest, too, does not necessarily coincide with that of the accused.
122
Nor does the protection against judicial partiality serve only the defendant. It is true that the public-trial provision serves to protect every accused from the abuses to which secret tribunals would be prone. But the defendant himself may benefit from the partiality of a corrupt, biased, or incompetent judge, "for a secret trial can result in favor to as well as unjust prosecution of a defendant." Lewis v. Peyton, 352 F.2d 791, 792 (CA4 1965).
123
Open trials also enable the public to scrutinize the performance of police and prosecutors in the conduct of public judicial business. Trials and particularly suppression hearings typically involve questions concerning the propriety of police and government conduct that took place hidden from the public view. Any interest on the part of the prosecution in hiding police or prosecutorial misconduct or ineptitude may coincide with the defendant's desire to keep the proceedings private, with the result that the public interest is sacrificed from both sides.
124
Public judicial proceedings have an important educative role as well. The victim of the crime, the family of the victim, others who have suffered similarly, or others accused of like crimes, have an interest in observing the course of a prosecution. Beyond this, however, is the interest of the general public in observing the operation of the criminal justice system. Judges, prosecutors, and police officials often are elected or are subject to some control by elected officials, and a main source of information about how these officials perform is the open trial. And the manner in which criminal justice is administered in this country is in and of itself of interest to all citizens. In Cox Broadcasting Corp. v. Cohn, 420 U.S., at 495, 95 S.Ct., at 1046, it was noted that information about the criminal justice system "appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business."
125
Important in this regard, of course, is the appearance of justice. "Secret hearings—though they be scrupulously fair in reality—are suspect by nature. Public confidence cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view." United States v. Cianfrani, 573 F.2d 835, 851 (CA3 1978). The ability of the courts to administer the criminal laws depends in no small part on the confidence of the public in judicial remedies, and on respect for and acquaintance with the processes and deliberations of those courts. 6 Wigmore § 1834, at 438. Anything that impairs the open nature of judicial proceedings threatens to undermine this confidence and to impede the ability of the courts to function.
126
These societal values secured by the public trial are fundamental to the system of justice on both the state and federal levels. As such, they have been recognized by the large majority of both state10 and federal11 courts that have considered the issue over the years since the adoption of the Constitution. Indeed, in those States with constitutional provisions modeled on the Sixth Amendment, guaranteeing the right to a public trial literally only to the accused, there has been widespread recognition that such provisions serve the interests of the public as well as those of the defendant.12
127
I therefore conclude that the Due Process Clause of the Fourteenth Amendment, insofar as it incorporates the publictrial provision of the Sixth Amendment, prohibits the States from excluding the public from a proceeding within the ambit of the Sixth Amendment's guarantee without affording full and fair consideration to the public's interests in maintaining an open proceeding. And I believe that the Sixth and Fourteenth Amendments require this conclusion notwithstanding the fact it is the accused who seeks to close the trial.13
D
128
Before considering whether and under what circumstances a court may conduct a criminal proceeding in private, one must first decide whether the Sixth Amendment, as applied through the Fourteenth, encompasses the type of pretrial hearing contemplated by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and at issue in this case. The Amendment, of course, speaks only of a public "trial." Both the County Court and the New York Court of Appeals emphasized that exclusion from the formal trial on the merits was not at issue, apparently in the belief that the Sixth Amendment's public-trial provision applies with less force, or not at all, to a pretrial proceeding.
129
I find good reason to hold that even if a State, as it may, chooses to hold a Jackson v. Denno or other suppression hearing separate from and prior to the full trial, the Sixth Amendment's public-trial provision applies to that hearing. First, the suppression hearing resembles and relates to the full trial in almost every particular. Evidence is presented by means of live testimony, witnesses are sworn, and those witnesses are subject to cross-examination. Determination of the ultimate issue depends in most cases upon the trier of fact's evaluation of the evidence, and credibility is often crucial. Each side has incentive to prevail, with the result that the role of publicity as a testimonial safeguard, as a mechanism to encourage the parties, the witnesses, and the court to a strict conscientiousness in the performance of their duties, and in providing a means whereby unknown witnesses may become known, is just as important for the suppression hearing as it is for the full trial.
130
Moreover, the pretrial suppression hearing often is critical, and it may be decisive, in the prosecution of a criminal case. If the defendant prevails, he will have dealt the prosecution's case a serious, perhaps fatal, blow; the proceeding often then will be dismissed or negotiated on terms favorable to the defense. If the prosecution successfully resists the motion to suppress, the defendant may have little hope of success at trial (especially where a confession is in issue), with the result that the likelihood of a guilty plea is substantially increased. United States v. Clark, 475 F.2d 240, 246-247 (CA2 1973); United States v. Cianfrani, 573 F.2d, at 848-851.
131
The suppression hearing often is the only judicial proceeding of substantial importance that takes place during a criminal prosecution. In this very case, the hearing from which the public was excluded was the only one in which the important factual and legal issues in the prosecution of respondents Greathouse and Jones were considered. It was the only proceeding at which the conduct of the police, prosecution, and the court itself was exposed to scrutiny. Indeed, in 1976, when this case was processed, every felony prosecution in Seneca County and I say this without criticism—was terminated without a trial on the merits. N.Y.Leg.Doc. No. 90, Judicial Conference of the State of New York, 22d Annual Report 55 (1977). This statistic is characteristic of our state and federal criminal justice systems as a whole,14 and it underscores the importance of the suppression hearing in the functioning of those systems.
132
Further, the issues considered at such hearings are of great moment beyond their importance to the outcome of a particular prosecution. A motion to suppress typically involves, as in this case, allegations of misconduct by police and prosecution that raise constitutional issues. Allegations of this kind, although they may prove to be unfounded, are of importance to the public as well as to the defendant. The searches and interrogations that such hearings evaluate do not take place in public. The hearing therefore usually presents the only opportunity the public has to learn about police and prosecutorial conduct, and about allegations that those responsible to the public for the enforcement of laws themselves are breaking it.
133
A decision to suppress often involves the exclusion of highly relevant evidence. Because this is so, the decision may generate controversy. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 412-420, 91 S.Ct. 1999, 2012-2017, 29 L.Ed.2d 619 (1971) (dissenting opinion). It is important that any such decision be made on the basis of evidence and argument offered in open court, so that all who care to see or read about the case may evaluate for themselves the propriety of the exclusion.
134
These factors lead me to conclude that a pretrial suppression hearing is the close equivalent of the trial on the merits for purposes of applying the public-trial provision of the Sixth Amendment. Unlike almost any other proceeding apart from the trial itself, the suppression hearing implicates all the policies that require that the trial be public. For this reason, I would be loath to hold that a State could conduct a pretrial Jackson v. Denno hearing in private over the objection of the defendant. And for this same reason, the public's interest in the openness of judicial proceedings is implicated fully when it is the accused who seeks to exclude the public from such a hearing. Accordingly, I conclude that the Sixth and Fourteenth Amendments prohibit a State from conducting a pretrial suppression hearing in private, even at the request of the accused, unless full and fair consideration is first given to the public's interest, protected by the Amendments, in open trials.15
135
The Court holds, however, that, even assuming the Sixth and Fourteenth Amendments could be viewed as embodying a public right of access to trials, there was no common-law right in members of the public to attend preliminary proceedings.
136
But I have not said that there was. I have demonstrated that there was a right to attend trials. And I have said that, because of the critical importance of suppression hearings to our systems of criminal justice—as well as because of the close similarity in form of a suppression hearing to a full trial—for purposes of the Sixth Amendment public-trial provision the pretrial suppression hearing at issue in this case must be considered part of the trial.
137
It is significant that the sources upon which the Court relies do not concern suppression hearings. They concern hearings to determine probable cause to bind a defendant over for trial. E. g., Indictable Offences Act, 11 & 12 Vict., ch. 42, §§ 17, 19 (1848); Cal.Penal Code Ann. § 868 (West Supp.1979). Such proceedings are not critical to the criminal justice system in the way the suppression-of-evidence hearing is and they are not close equivalents of the trial itself in form. The fact that such proceedings might have been held in private at common law in England or in this country does not detract from my conclusion that pretrial suppression hearings should not be, any more than does the fact that grand juries—or preliminary proceedings such as coroner's inquests at common law—were and are secret.
138
Indeed, the modern suppression hearing, unknown at common law, is a type of objection to evidence such as took place at common law, and as takes place today in the case of nonconstitutional objections, in open court during trial. There is no federal requirement that States conduct suppression hearings prior to trial. See Pinto v. Pierce, 389 U.S. 31, 32, 88 S.Ct. 192, 193, 19 L.Ed.2d 31 (1967). I assume that if such an objection were made during trial, it would be made in open court during the course of the public trial. I am unwilling to allow the temporal factor to control whether the public will be able to have access to the proceeding.
139
The Court also must believe that not even the accused has a right to a public pretrial suppression hearing. For if, as the Court assumes for the sake of argument, there is a public right to attend trials that the Sixth Amendment protects, it is difficult to see why, if that right does not extend to preliminary proceedings insofar as the public is concerned, it should extend to such proceedings insofar as the defendant is concerned. And many of the precedents upon which the Court relies denied a public preliminary proceeding to the accused as well as to the public. E. g., Indictable Offences Act, 11 & 12 Vict., ch. 42, § 17 (1848); Mont.Rev.Codes Ann. § 95-1202(c) (1969).
140
Alternatively, the Court finds that the right to a public trial is the right of the accused only, and that the public has no enforceable interest in public trials. Under this analysis, the defendant—so long as the prosecution and the judge agree—may surely close a full trial on the merits as well as a pretrial suppression hearing. The Court's analysis would thus allow closed trials as well without providing for any standards to insure that "the public['s] . . . right to be informed as to what occurs in its courts" has been protected. Estes v. Texas, 381 U.S., at 541, 85 S.Ct., at 1632.
141
I, for one, am unwilling to allow trials and suppression hearings to be closed with no way to ensure that the public interest is protected. Unlike the other provisions of the Sixth Amendment, the public-trial interest cannot adequately be protected by the prosecutor and judge in conjunction, or connivance, with the defendant. The specter of a trial or suppression hearing where a defendant of the same political party as the prosecutor and the judge—both of whom are elected officials perhaps beholden to the very defendant they are to try—obtains closure of the proceeding without any consideration for the substantial public interest at stake is sufficiently real to cause me to reject the Court's suggestion that the parties be given complete discretion to dispose of the public's interest as they see fit. The decision of the parties to close a proceeding in such a circumstance, followed by suppression of vital evidence or acquittal by the bench, destroys the appearance of justice and undermines confidence in the judicial system in a way no subsequent provision of transcript might remedy. But even where no connivance occurs, prosecutors and judges may have their own reasons for preferring a closed proceeding. And a prosecutor, who seeks to obtain a conviction free from error, and a judge who seeks the same while protecting the defendant's rights, may lack incentive to assert some notion of the public interest in the face of a motion by a criminal defendant to close a trial.
III
142
At the same time, I do not deny that the publication of information learned in an open proceeding may harm irreparably, under certain circumstances, the ability of a defendant to obtain a fair trial. This is especially true in the context of a pretrial hearing, where disclosure of information, determined to be inadmissible at trial, may severely affect a defendant's rights. Although the Sixth Amendment's public-trial provision establishes a strong presumption in favor of open proceedings, it does not require that all proceedings be held in open court when to do so would deprive a defendant of a fair trial.
143
No court has held that the Sixth Amendment imposes an absolute requirement that courts be open at all times. On the contrary, courts on both the state and federal levels have recognized exceptions to the public-trial requirement even when it is the accused who objects to the exclusion of the public or a portion thereof. Thus, it is clear that the court may exclude unruly spectators or limit the number of spectators. And in both Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), this Court held that a court may place restrictions on the access of the electronic media in particular, and certain types of newsgathering in general, inside the courthouse doors. There are a number of instances where the courts have gone further and upheld the exclusion of the public for limited periods of time. Examples are when it was necessary to preserve the confidentiality of the Government's "skyjacker profile," United States v. Bell, 464 F.2d 667 (CA2), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972), and when it was necessary to effectuate Congress' determination that the confidentiality of communications intercepted under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., be preserved prior to the determination that such communications were lawfully intercepted. United States v. Cianfrani, 573 F.2d 835 (CA3 1978).
144
I need express no opinion on the correctness of such decisions. But they illustrate that courts have been willing to permit limited exceptions to the principle of publicity where necessary to protect some other interest. Because of the importance we attach to a fair trial, it is clear that whatever restrictions on access the Sixth Amendment may prohibit in another context, it does not prevent a trial court from restricting access to a pretrial suppression hearing where such restriction is necessary in order to ensure that a defendant not be denied a fair trial as a result of prejudicial publicity flowing from that hearing.16 See Branzburg v. Hayes, 408 U.S. 665, 685, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626 (1972).
145
At the same time, however, the public's interest in maintaining open courts requires that any exception to the rule be narrowly drawn. It comports with the Sixth Amendment to require an accused who seeks closure to establish that it is strictly and inescapably necessary in order to protect the fair-trial guarantee. That finding must be made in the first instance, of course, by the trial court. I cannot detail here all the factors to be taken into account in evaluating the defendant's closure request, nor can I predict how the balance should be struck in every hypothetical case. The accused who seeks closure should establish, however, at a minimum the following:
146
First, he should provide an adequate basis to support a finding that there is a substantial probability that irreparable damage to his fair-trial right will result from conducting the proceeding in public. This showing will depend on the facts. But I think it requires evidence of the nature and extent of the publicity prior to the motion to close in order to establish a basis for the trial court to conclude that further coverage will result in the harm sought to be prevented. In most cases, this will involve a showing of the impact on the jury pool. This seldom can be measured with exactness, but information relating to the size of the pool, the extent of media coverage in the pertinent locality, and the ease with which change of venire can be accomplished or searching voir dire instituted to protect against prejudice, would be relevant. The court also should consider the extent to which the information sought to be suppressed is already known to the public, and the extent to which publication of such information, if unknown, would have an impact in the context of the publicity that has preceded the motion to close.
147
Second, the accused should show a substantial probability that alternatives to closure will not protect adequately his right to a fair trial. One may suggest numerous alternatives, but I think the following should be considered: continuance, severance, change of venue, change of venire, voir dire, peremptory challenges, sequestration, and admonition of the jury. ABA Project for Criminal Justice, Fair Trial and Free Press, Standard 8-3.2, p. 16 (App. Draft 1978). See Nebraska Press Assn. v. Stuart, 427 U.S., at 562-565, 96 S.Ct., at 2804-2806; Sheppard v. Maxwell, 384 U.S., at 354 n. 9, 358-362, 86 S.Ct., at 1518 n. 9, 1519-1522. One or more of these alternatives may adequately protect the accused's interests and relieve the court of any need to close the proceeding in advance.17
148
I note, too, that for suppression hearings alternatives to closure exist that would enable the public to attend but that would limit dissemination of the information sought to be suppressed. At most such hearings, the issues concern not so much the contents of a confession or of a wiretap, or the nature of the evidence seized, but the circumstances under which the prosecution obtained this material. Many hearings, with care, could be conducted in public with little risk that prejudicial information would be disclosed.
149
Third, the accused should demonstrate that there is a substantial probability that closure will be effective in protecting against the perceived harm. Where significantly prejudicial information already has been made public, there might well be little justification for closing a pretrial hearing in order to prevent only the disclosure of details.
150
I emphasize that the trial court should begin with the assumption that the Sixth Amendment requires that a pretrial suppression hearing be conducted in open court unless a defendant carries his burden to demonstrate a strict and inescapable necessity for closure. There should be no need for a representative of the public to demonstrate that the public interest is legitimate or genuine or that the public seeks access out of something more than mere curiosity. Trials and suppression hearings by their nature are events of legitimate public interest, and the public need demonstrate no threshold of respectability in order to attend. This is not to say, of course, that a court should not take into account heightened public interest in cases of unusual importance to the community or to the public at large. The prosecution of an important officeholder could intensify public interest in observing the proceedings, and the court should take that interest into account where it is warranted. It is also true, however, that as the public interest intensifies, so does the potential for prejudice.
151
As a rule, the right of the accused to a fair trial is compatible with the interest of the public in maintaining the publicity of pretrial proceedings. "In the overwhelming majority of criminal trials, pretrial publicity presents few unmanageable threats to this important right." Nebraska Press Assn. v. Stuart, 427 U.S., at 551, 96 S.Ct., at 2799. Our cases "cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process." Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). A high level of publicity is not necessarily inconsistent with the ability of the defendant to obtain a fair trial where the publicity has been largely factual in nature, id., at 802, 95 S.Ct., at 2037; Beck v. Washington, 369 U.S. 541, 542-545, 557-558, 82 S.Ct. 955, 956-958, 964, 8 L.Ed.2d 98 (1962), or where it abated some time prior to trial. See Stroble v. California, 343 U.S. 181, 191-194, 72 S.Ct. 599, 604-606, 96 L.Ed. 872 (1952).
152
In those cases where a court has found publicity sufficiently prejudicial as to warrant reversal on due process grounds, the publicity went far beyond the normal bounds of coverage. In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), for example, there was a barrage of adverse publicity about the defendant's offer to plead guilty and his confession to several murders and burglaries. In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), there was live pretrial television coverage of the defendant's confession. And in Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the press, and especially the electronic media, intruded to such an extent on the courtroom proceedings that all semblance of decorum and sobriety was lost. See Nebraska Press Assn. v. Stuart, 427 U.S., at 551-556, 96 S.Ct., at 2799-2801; Murphy v. Florida, 421 U.S., at 798-799, 95 S.Ct., at 2035-2036.
153
But "[c]ases such as these are relatively rare." Nebraska Press, 427 U.S., at 554, 96 S.Ct., at 2800. All our decisions in this area, "[t]aken together, . . . demonstrate that pretrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial." Ibid. These cases provide the background against which a trial judge must evaluate a motion to close a hearing on the ground that an open hearing will result in publicity so prejudicial that a defendant will be deprived of his due process right to a fair trial. In Stroble, Murphy, and Beck, of course, the sharpened vision of hindsight helped the Court to see that the trial had been fair notwithstanding the publicity. The trial judge faced with a closure motion has the more difficult task of looking into the future. I do not mean to suggest that only in the egregious circumstances of cases such as Estes and Sheppard would closure be permissible. But to some extent the harm that the defendant fears from publicity is also speculative.
154
If, after considering the essential factors, the trial court determines that the accused has carried his burden of establishing that closure is necessary, the Sixth Amendment is no barrier to reasonable restrictions on public access designed to meet that need. Any restrictions imposed, however, should extend no further than the circumstances reasonably require. Thus, it might well be possible to exclude the public from only those portions of the proceeding at which the prejudicial information would be disclosed, while admitting to other portions where the information the accused seeks to suppress would not be revealed. United States v. Cianfrani, 573 F.2d, at 854. Further, closure should be temporary in that the court should ensure that an accurate record is made of those proceedings held in camera and that the public is permitted proper access to the record as soon as the threat to the defendant's fair-trial right has passed.
155
I thus reject the suggestion that the defendant alone may determine when closure should occur. I also reject any notion that the decision whether to permit closure should be in the hands of the prosecutor on the theory that he is the representative of the public's interest. It is in part the public's interest in observing the conduct of the prosecutor, and the police with whom he is closely associated, that the public-trial provision serves. To cloak his own actions or those of his associates from public scrutiny, a prosecutor thus may choose to close a hearing where the facts do not warrant it. Moreover, prosecutors often are elected, and the public has a strong interest, as noted, in observing the conduct of elected officials. In addition, the prosecutor may fear reversal on appeal if he too strenuously resists the motion of a defendant to close a hearing. Conversely, a prosecutor may wrap in the mantle of the public interest his desire to disseminate prejudicial information about an accused prior to trial, and so resist a motion to close where the circumstances warrant some restrictions on access. I thus am unwilling to commit to the discretion of the prosecutor, against whose own misconduct or incompetence the public-trial requirement is designed in part to protect, the decision as to whether an accused's motion to close will be granted.
156
As a final safeguard, I would conclude that any person removed from a court should be given a reasonable opportunity to state his objections prior to the effectiveness of the order. This opportunity need not take the form of an evidentiary hearing; it need not encompass extended legal argument that results in delay; and the public need not be given prior notice that a closure order will be considered at a given time and place. But where a member of the public contemporaneously objects, the court should provide a reasonable opportunity to that person to state his objection. Finally, the court should state on the record its findings concerning the need for closure so that a reviewing court may be adequately informed.
IV
157
The Sixth Amendment, in establishing the public's right of access to a criminal trial and a pretrial proceeding, also fixes the rights of the press in this regard. Petitioner, as a newspaper publisher, enjoys the same right of access to the Jackson v. Denno hearing at issue in this case as does the general public. And what petitioner sees and hears in the courtroom it may, like any other citizen, publish or report consistent with the First Amendment. "Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom." Sheppard v. Maxwell, 384 U.S., at 362-363, 86 S.Ct., at 1522. Reporters for newspaper, television, and radio "are entitled to the same rights as the general public" to have access to the courtroom, Estes v. Texas, 381 U.S., at 540, 85 S.Ct., at 1631, where they "are always present if they wish to be and are plainly free to report whatever occurs in open court through their respective media." Id., at 541-542, 85 S.Ct., at 1632. "[O]nce a public hearing ha[s] been held, what transpired there could not be subject to prior restraint." Nebraska Press Assn. v. Stuart, 427 U.S., at 568, 96 S.Ct., at 2807.
158
Petitioner acknowledges that it seeks no greater rights than those due the general public. But it argues that, the Sixth Amendment aside, the First Amendment protects the free flow of information about judicial proceedings, and that this flow may not be cut off without meeting the standards required to justify the imposition of a prior restraint under the First Amendment. Specifically, petitioner argues that the First Amendment prohibits closure of a pretrial proceeding except in accord with the standards established in Nebraska Press and only after notice and hearing and a stay pending appeal.
159
I do not agree. As I have noted, this case involves no restraint upon publication or upon comment about information already in the possession of the public or the press. It involves an issue of access to a judicial proceeding. To the extent the Constitution protects a right of public access to the proceeding, the standards enunciated under the Sixth Amendment suffice to protect that right. I therefore need not reach the issue of First Amendment access.
V
160
I return to the exclusion order entered by Judge DePasquale. It is clear that the judge entered the order because of his apparent concern for the fair-trial rights of the defendants and his suspicion that those rights would be threatened if the hearing were public. I acknowledge that concern, but I conclude that the order was not justified on the facts of this case.
161
There was no factual basis upon which the court could conclude that a substantial probability existed that an open proceeding would result in harm to the defendants' rights to a fair trial. The coverage in petitioner's newspapers of Clapp's disappearance and the subsequent arrest and prosecution of Greathouse and Jones was circumspect. Stories appeared on only 7 of the 18 days between July 20 and August 6. All coverage ceased on August 6 and did not resume until after the suppression hearing three months later. The stories that appeared were largely factual in nature. The reporting was restrained and free from editorializing or sensationalism. There was no screaming headline, no lurid photograph, no front-page overemphasis. The stories were of moderate length and were linked to factual developments in the case. And petitioner's newspapers had only a small circulation in Seneca County. See n. 1, ante, of the Court's opinion.
162
In addition, counsel for respondents stated that the only fact not known to petitioner prior to the suppression hearing was the content of the confessions. Tr. of Oral Arg. 40. Prior to the hearing, petitioner had learned of the confessions and of the existence and nature of the physical evidence sought to be suppressed. It is thus not at all likely that the openness of the suppression hearing would have resulted in the divulgence of additional information that would have made it more probable that Greathouse and Jones would be denied a fair trial.
163
On this record, I cannot conclude, as a matter of law, that there was a sufficient showing to establish the strict and inescapable necessity that supports an exclusion order. The circumstances also would not have justified a holding by the trial court that there was substantial probability that alternatives to closure would not have sufficed to protect the rights of the accused.
164
It has been said that publicity "is the soul of justice." J. Bentham, A Treatise on Judicial Evidence 67 (1825). And in many ways it is: open judicial processes, especially in the criminal field, protect against judicial, prosecutorial, and police abuse; provide a means for citizens to obtain information about the criminal justice system and the performance of public officials; and safeguard the integrity of the courts. Publicity is essential to the preservation of public confidence in the rule of law and in the operation of courts. Only in rare circumstances does this principle clash with the rights of the criminal defendant to a fair trial so as to justify exclusion. The Sixth and Fourteenth Amendments require that the States take care to determine that those circumstances exist before excluding the public from a hearing to which it otherwise is entitled to come freely. Those circumstances did not exist in this case.
1
The Democrat & Chronicle and the Times-Union are published in Rochester, N. Y. Rochester, in Monroe County, is approximately 40 miles from the Seneca County line. The circulation of the newspapers is primarily in Monroe County. There are some subscribers, however, in Seneca County. In 1976, when this case arose, the Democrat & Chronicle had a Seneca County daily circulation of 1,022, giving it a 9.6% share of the market in that county, and a Sunday circulation of 1,532 for a 14.3% share of the market. The Times-Union published only a daily edition and had but one subscriber in Seneca County. American Newspaper Markets, Inc., Circulation '77/'78, pp. 522, 541. The Bureau of the Census estimated Seneca County's 1976 population at 34,000. U. S. Department of Commerce, Bureau of the Census, Current Population Reports, Series P-26, No. 76-32, Population Estimates 3 (Aug. 1977).
The petitioner in 1976 also owned a Rochester, N. Y., television station. And there were other newspapers in Seneca County at that time. See Circulation '77/'78, supra, at 522. The record in this case, however, contains no evidence concerning newspaper coverage of Clapp's disappearance and the subsequent prosecution of respondents Greathouse and Jones other than that which appeared in the Democrat & Chronicle and the Times-Union.
2
Under N.Y.Crim.Proc. Law §§ 710.40 and 255.20 (McKinney Supp.1978), a defendant was required to file in advance of trial any motion to suppress evidence. The statutes permitted a defendant to make such a motion for the first time during trial only when he did not have a reasonable opportunity to do so prior to trial, or when the State failed to provide notice before trial that it would seek to introduce a confession of the defendant. §§ 710.30 and 710.40.2.
3
The hearing on the motion of defendants Greathouse and Jones to suppress their confessions as involuntary was held before trial in accordance with the decision in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). In Huntley, the New York Court of Appeals ruled that the separate inquiry into the voluntariness of a confession, required by this Court's decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), was to be made in a preliminary hearing. 15 N.Y.2d, at 78, 255 N.Y.S.2d, at 843, 204 N.E.2d, at 183.
4
Shortly before the entry of judgment by the Appellate Division, both defendants had pleaded guilty to lesser included offenses in satisfaction of the charges against them. Immediately thereafter, a transcript of the suppression hearing was made available to the petitioner.
5
In addition to excluding inadmissible evidence, a trial judge may order sequestration of the jury or take any of a variety of protective measures. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 562-565, 96 S.Ct. 2791, 2804-2806, 49 L.Ed.2d 683; Sheppard v. Maxwell, 384 U.S. 333, 358-362, 86 S.Ct. 1507, 1519-1522, 16 L.Ed.2d 600.
6
All of this does not mean, of course, that failure to close a pretrial hearing, or take other protective measures to minimize the impact of prejudicial publicity, will warrant the extreme remedy of reversal of a conviction. But it is precisely because reversal is such an extreme remedy, and is employed in only the rarest cases, that our criminal justice system permits, and even encourages, trial judges to be over-cautious in ensuring that a defendant will receive a fair trial.
7
The Sixth Amendment provides:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
8
The Court also recognized that while the right to a public trial is guaranteed to an accused, publicity also provides various benefits to the public. 333 U.S., at 270 n. 24, 68 S.Ct., at 506 n. 24.
9
Numerous commentators have also recognized that only a defendant has a right to a public trial under the Sixth Amendment. E. g., Radin, The Right to a Public Trial, 6 Temple L.Q. 381, 392 (1932) (a public right to a public trial "cannot be derived from the Constitution because the Constitution certainly does not mention a public trial as the privilege of the public, but expressly as that of the accused"); Boldt, Should Canon 35 Be Amended?, 41 A.B.A.J. 55, 56 (1955) ("[T]he guarantee of public trial is for the benefit of persons charged with crime . . . . It is significant that the Constitution does not say that the public has the right to 'enjoy' or even attend trials. There is nothing in the constitutional language indicating that any individual other than the accused in a criminal trial . . . [has] either a right to attend the trial or to publicity emanating from the trial"); Note, The Right to Attend Criminal Hearings, 78 Colum.L.Rev. 1308, 1321 (1978) (since the Sixth Amendment confers a right to a public trial to the accused, "to elaborate a parallel and possibly adverse public right of access from the public trial guarantee clause strains even flexible constitutional language beyond its proper bounds"); Note, The Right to a Public Trial in Criminal Cases, 41 N.Y.U.L.Rev. 1138, 1156 (1966). ("Despite the importance of the public's interest, however, it does not appear that a public right is 'so rooted in the traditions and conscience of our people as to be ranked as fundamental,' . . . particularly in view of the uncertain status of this right in the majority of the state courts").
See also Powell, The Right to a Fair Trial, 51 A.B.A.J. 534, 538 (1965) ("We must bear in mind that the primary purpose of a public trial and of the media's right as a part of the public to attend and report what occurs there is to protect the accused"); 1 T. Cooley, Constitutional Limitations 647 (8th ed. 1927) ("The requirement of a public trial is for the benefit of the accused . . .").
It appears that before today, only one court, state or federal, has ever held that the Sixth and Fourteenth Amendments confer upon members of the public a right of access to a criminal trial. United States v. Cianfrani, 573 F.2d 835 (CA3 1978). The Cianfrani case has been criticized for its departure from the plain meaning of the Sixth Amendment. See Note, 78 Colum.L.Rev., at 1321-1322.
10
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, by contrast, the Court held that the Sixth and Fourteenth Amendments guarantee that an accused has a right to proceed without counsel in a criminal case when he voluntarily and intelligently elects to do so. In reaching this result, the Court relied on the language and structure of the Sixth Amendment which grants to the accused the right to make a defense. As part of this right to make a defense, the Amendment speaks of the "assistance" of counsel, thus contemplating a norm in which the accused, and not a lawyer, is master of his own defense. Id., at 819-820, 95 S.Ct., at 2533-2534.
11
The question in this case is not, as the dissenting opinion repeatedly suggests, post, at 411, 415, 418, 425, 426, whether the Sixth and Fourteenth Amendments give a defendant the right to compel a secret trial. In this case the defendants, the prosecutor, and the judge all agreed that closure of the pretrial suppression hearing was necessary to protect the defendants' right to a fair trial. Moreover, a transcript of the proceedings was made available, to the public. Thus there is no need to decide the question framed by the dissenting opinion. If that question were presented, it is clear that the defendant would have no such right. See Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 ("[A]lthough a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial").
12
The Court has recognized that a prosecutor "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law . . . ." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314. The responsibility of the prosecutor as a representative of the public surely encompasses a duty to protect the societal interest in an open trial. But this responsibility also requires him to be sensitive to the due process rights of a defendant to a fair trial. A fortiori, the trial judge has the same dual obligation.
13
Blackstone, for example, stated that it "universally obtains" that if a juror knows of a matter in issue, he may "give his evidence publicly in court." 3 W. Blackstone, Commentaries *375.
14
Thus, it is not enough to say, in the words of the dissenting opinion, that there is no "evidence that casting the public-trial concept in terms of a right of the accused signaled a departure from the common-law practice," post, at 425, and that "there is no indication that the First Congress, in proposing what became the Sixth Amendment, meant to depart from the common-law practice . . . ." Post, at 426.
15
An additional problem with the historical analysis of the petitioner and amici is that it is equally applicable to civil and criminal cases and therefore proves too much. For many centuries, both civil and criminal trials have traditionally been open to the public. As early as 1685, Sir John Hawles commented that open proceedings were necessary so "that truth may be discovered in civil as well as criminal matters" (emphasis added). Remarks upon Mr. Cornish's Trial, 11 How.St.Tr. 455, 460. English commentators also assumed that the common-law rule was that the public could attend civil and criminal trials without distinguishing between the two. E. g., 2 E. Coke, Institutes of the Laws of England 103 (6th ed. 1681) ("all Causes ought to be heard . . . openly in the Kings Courts"); 3 W. Blackstone, Commentaries *372; M. Hale, The History of the Common Law of England 343, 345 (6th ed. 1820); E. Jenks, The Book of English Law 73-74 (6th ed. 1967).
The experience in the American Colonies was analogous. From the beginning, the norm was open trials. Indeed, the 1677 New Jersey Constitution provided that any person could attend a trial whether it was "civil or criminal," Concessions and Agreements of West New Jersey (1677), ch. XXIII, quoted in 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971) (emphasis added). Similarly, the 1682 and 1776 Pennsylvania Constitutions both provided that "all courts shall be open," 1 Schwartz, supra, at 140, 271 (emphasis added).
If the existence of a common-law rule were the test for whether there is a Sixth Amendment public right to a public trial, therefore, there would be such a right in civil as well as criminal cases. But the Sixth Amendment does not speak in terms of civil cases at all; by its terms it is limited to providing rights to an accused in criminal cases. In short, there is no principled basis upon which a public right of access to judicial proceedings can be limited to criminal cases if the scope of the right is defined by the common law rather than the text and structure of the Constitution.
Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context. While the operation of the judicial process in civil cases is often of interest only to the parties in the litigation, this is not always the case. E. g., Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691; Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750. Thus, in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.
16
See n. 15, supra.
17
Although pretrial suppression hearings were unknown at common law, other preliminary hearings were formalized by statute as early as 1554 and 1555. 1 & 2 Phil. & M., ch. 13 (1554); 2 & 3 Phil. & M., ch. 10 (1555).
18
After the abolition of the Star Chamber in 1641, defendants in criminal cases began to acquire many of the rights that are presently embodied in the Sixth Amendment. Thus, the accused now had the right to confront witnesses, call witnesses in his own behalf, and generally the right to a fair trial as we now know it. It was during this period that the public trial first became identified as a right of the accused. As one commentator has stated:
"The public trial, although it had always been the custom, acquired new significance. It gave the individual protection against being denied any of his other fundamental rights. A public trial would make it difficult for a judge to abuse a jury or the accused. Any such abuses would cause much public indignation. Thus, it must have seemed implicit that the public trial was as much an essential element of a fair trial as any of the newer conventions." Note, Legal History: Origins of the Public Trial, 35 Ind.L.J. 251, 255 (1960).
It was during this period that we first find defendants demanding a public trial. See, The Trial of John Lilburne, 4 How.St.Tr. 1270, 1273 (1649), in which Lilburne, on trial for treason, referred to a public trial as "the first fundamental liberty of an Englishman." Indeed, the fact that the Framers guaranteed to an accused the right to a public trial in the same Amendment that contains the other fair trial rights of an accused also suggests that open trials were by then clearly associated with the rights of a defendant.
19
Even with respect to trials themselves, the tradition of publicity has not been universal. Exclusion of some members of the general public has been upheld, for example, in cases involving violent crimes against minors. Geise v. United States, 262 F.2d 151 (CA9 1958). The public has also been temporarily excluded from trials during testimony of certain witnesses. E. g., Beauchamp v. Cahill, 297 Ky. 505, 180 S.W.2d 423 (1944) (exclusion justified when children forced to testify to revolting facts); State v. Callahan, 100 Minn. 63, 110 N.W. 342 (1907) (exclusion justified when embarrassment could prevent effective testimony); Hogan v. State, 191 Ark. 437, 86 S.W.2d 931 (1935) (trial judge properly closed trial to spectators during testimony of 10-year-old rape victim); United States ex rel. Smallwood v. La Valle, 377 F.Supp. 1148 (E.D.N.Y.), aff'd, 508 F.2d 837 (CA2 1974). Exclusion has also been permitted when the evidence in a case was expected to be obscene. State v. Croak, 167 La. 92, 118 So. 703 (1928). Finally, trial judges have been given broad discretion to exclude spectators to protect order in their courtrooms. United States ex rel. Orlando v. Fay, 350 F.2d 967 (CA2 1965) (exclusion of general public justified after an outburst in court by defendant and his mother).
Approximately half the States also have statutory provisions containing limitations upon public trials. E. g., Ala.Code § 12-21-202 (1975) (public can be excluded in rape cases); Ga.Code § 81-1006 (1978) (public can be excluded where evidence is vulgar); Mass.Gen.Laws Ann., ch. 278, § 16A (West 1972) (general public can be excluded from all trials of designated crimes); Minn.Stat. § 631.04 (1978) (no person under 17 who is not a party shall be present in a criminal trial); Va.Code § 19.2-266 (1975) ("In the trial of all criminal cases . . . the court may, in its discretion, exclude . . . any persons whose presence would impair the conduct of a fair trial . . .").
The petitioner and amici appear to argue that since exclusion of members of the public is relatively rare, there must be a constitutional public right to a public trial. This argument, however, confuses the existence of a constitutional right with the common-law tradition of open civil and criminal proceedings. See n. 15, supra. This common-law tradition, coupled with the explicit right of the accused to a public trial in criminal cases, fully explains the general prevalence of open trials.
20
Similarly, the press had no privilege for the reporting of pretrial judicial proceedings under English common law. Thus in the well-known case of King v. Fisher, 2 Camp. 563, 170 Eng.Rep. 1253 (N.P.1811), the court forbade the dissemination of information about a pretrial hearing to protect the right of the accused to receive a fair trial. In distinguishing between the privilege accorded the reporting of trials, and the absence of such a privilege of reporting pretrial proceedings, Lord Ellenborough declared:
"If any thing is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced. . . . Trials at law, fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. . . . But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice." Id., at 570-571, 170 Eng.Rep., at 1255.
See also King v. Parke, [1903] 2 K.B. 432, 438.
Restrictions of public access and reporting of pretrial proceedings did not involve suppression hearings because such hearings did not exist in early common law. But the rationale for the lack of a public right of access to pretrial judicial proceedings—protection of the right of the accused to a fair trial is equally applicable to pretrial suppression hearings. Indeed, the entire purpose of a pretrial suppression hearing is to ensure that the accused will not be unfairly convicted by contaminated evidence.
21
Commissioners on Practice and Pleadings, Code of Criminal Procedure, § 202 (Final Report 1850).
22
Id., at 94. To protect a defendant's right to a public trial, however, closure could be ordered only at the request of the defendant:
"To guard the rights of the defendant against a secret examination, the section provides that it shall not be conducted in private, unless at his request." Id., at 95.
23
Ariz.Rule Crim.Proc. 9.3; Cal.Penal Code Ann. § 868 (West 1970); Idaho Code § 19-811 (1979); Iowa Code § 761.13 (1973); Mont.Code Ann. § 46-10-201 (1978); Nev.Rev.Stat. § 171.204 (1975); N.D.Cent.Code § 29-07-14 (1974); Utah Code Ann. § 77-15-13 (1978). Other States have similar provisions. E. g., Pa.Rule Crim.Proc. 323(f) (providing that suppression hearings shall be open "unless defendant moves that it be held in the presence of only the defendant, counsel for the parties, court officers and necessary witnesses"). Still other States allow closure of pretrial hearings without statutory authorization. Nebraska Press Assn. v. Stuart, 427 U.S., at 568, 96 S.Ct., at 2807.
Until a year ago, the American Bar Association also endorsed the view that presiding officers should close pretrial hearings at the request of a defendant unless there was no "substantial likelihood" that the defendant would be prejudiced by an open proceeding. ABA Project on Standards for Criminal Justice, Fair Trial and Free Press § 3.1 (App.Draft 1968). The ABA, following the "approach taken by the Supreme Court in Nebraska Press Association v. Stuart," has now changed this standard. ABA Project on Standards for Criminal Justice, Fair Trial and Free Press, Standard 8-3.2, p. 16 (App.Draft 1978). The Nebraska Press case, however, is irrelevant to the question presented here. See n. 25, infra.
24
The petitioner argues that trials have traditionally been open to the public, in contrast to prisons from which the public has been traditionally excluded. We need not decide in this case whether this factual difference is of any constitutional significance.
25
This Court's decision in Nebraska Press Assn. v. Stuart, supra, is of no assistance to the petitioners in this case. The Nebraska Press case involved a direct prior restraint imposed by a trial judge on the members of the press, prohibiting them from disseminating information about a criminal trial. Since "it has been generally, if not universally, considered that it is the chief purpose of the [First Amendment's] guaranty to prevent previous restraints upon publication," Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 630, 75 L.Ed. 1357, the Court held that the order violated the constitutional guarantee of a free press. See also Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355. The exclusion order in the present case, by contrast, did not prevent the petitioner from publishing any information in its possession. The proper inquiry, therefore, is whether the petitioner was denied any constitutional right of access.
*
The full quotation was: "It [the proceeding] is only a preliminary inquiry, whether there be sufficient ground to commit the prisoner for trial. The proceeding before the grand jury is precisely of the same nature, and it would be difficult, if the right exists in the present case, to deny it in that. This being only a preliminary inquiry, and not a trial, makes, in my mind, all the difference." Cox v. Coleridge, B. & C. 37, 49-50, 107 Eng.Rep. 15, 19-20 (1822).
1
In the present case, members of the press and public were excluded from a pretrial suppression hearing, rather than from the trial itself. In our criminal justice system as it has developed, suppression hearings often are as important as the trial which may follow. The government's case may turn upon the confession or other evidence that the defendant seeks to suppress, and the trial court's ruling on such evidence may determine the outcome of the case. Indeed, in this case there was no trial as, following the suppression hearing, plea bargaining occurred that resulted in guilty pleas. In view of the special significance of a suppression hearing, the public's interest in this proceeding often is comparable to its interest in the trial itself. It is to be emphasized, however, that not all of the incidents of pretrial and trial are comparable in terms of public interest and importance to a formal hearing in which the question is whether critical, if not conclusive, evidence is to be admitted or excluded. In the criminal process, there may be numerous arguments, consultations, and decisions, as well as depositions and interrogatories, that are not central to the process and that implicate no First Amendment rights. And, of course, grand jury proceedings traditionally have been held in strict confidence. See Houchins v. KQED, Inc., 438 U.S. 1, 34-35 (1978), 98 S.Ct. 2588, 2607-2608, 57 L.Ed.2d 553 (STEVENS, J., dissenting).
2
Contrary to Mr. Justice REHNQUIST's suggestion, post, at 405, lower courts cannot assume after today's decision that they are "free to determine for themselves the question whether to open or close the proceeding" free from all constitutional constraint. For although I disagree with my four dissenting Brethren concerning the origin and the scope of the constitutional limitations on the closing of pretrial proceedings, I agree with their conclusion that there are limitations and that they require the careful attention of trial courts before closure can be ordered.
3
Indeed, during subsequent oral argument, the trial court told counsel for petitioner: "It is very unfortunate that you were not here when the [closure] motion was made, but the motion was made and it was made with the moving force behind the motion being the rights of the defendants to a fair trial." App. 13. "The Gannett newspapers knew that the matter was scheduled for a hearing, they did have an opportunity to have counsel present on that particular morning that the [closure] motion was made, and unfortunately there was no representative of the Gannett newspapers." Id., at 17.
4
It does not appear from the record that the trial court gave any explicit consideration to the alternatives to closure and the sealing of the transcript. Although generally such consideration is necessary in order to determine whether the Constitution permits closure, see supra, at 400, in the circumstances of the present case I cannot find error in the trial court's method of proceeding. Petitioner's counsel, when he appeared after the closure order had been effectuated, suggested only obliquely that the court should consider alternatives such as a change of venue. At oral argument before the court, the lawyer insisted that "there must be a factual showing that there are no alternative means of remedying that problem [of prejudicial publicity], and the only thing that has been mentioned today . . . is that there is a reasonable probability that the defendants' case would be prejudiced." Insofar as this remark suggested that the burden was on the defendants to prove that there were no alternatives to closure, the court properly rejected the suggestion. See discussion, supra, at 401. And it appears that petitioner's counsel, for his part, made no effort to show that any alternative method of proceeding would be satisfactory. In light of the unsettled state of the law confronting the trial court, and the uncertain nature of the claims petitioner was making, I conclude that there was no material deviation from the guidelines set forth above.
1
In fact, as both the Court and the dissent recognize, the instances in which pretrial publicity alone, even pervasive and adverse publicity, actually deprives a defendant of the ability to obtain a fair trial will be quite rare. Ante, at 379 n. 6; post, at 443-444; see Nebraska Press Assn. v. Stuart, 427 U.S. 539, 551-555, 96 S.Ct. 2791, 2799-2801, 49 L.Ed.2d 683 (1976); Murphy v. Florida, 421 U.S. 794, 798-799, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975); Beck v. Washington, 369 U.S. 541, 557, 82 S.Ct. 955, 964, 8 L.Ed.2d 98 (1962); Stroble v. California, 343 U.S. 181, 191-194, 72 S.Ct. 599, 604-606, 96 L.Ed. 872 (1952).
2
My Brother POWELL suggests in his concurring opinion that I am wrong in so stating. Ante, at 398 n. 2. He believes that the four dissenters—who expressly reject his First Amendment views, post, at 411, and who, instead, rely on a Sixth Amendment analysis that is repudiated by a majority of the Court today—will join him in any subsequent case to impose constitutional limitations on the ability of a trial court to close judicial proceedings. I disagree with Mr. Justice POWELL for two reasons. First, in a matter so commonly arising in the regular administration of criminal justice, I do not so lightly as my Brother POWELL impute to the four dissenters in this case a willingness to ignore the doctrine of stare decisis and to join with him in some later decision to form what might fairly be called an "odd quintuplet," agreeing that the authority of trial courts to close judicial proceedings to the public is subject to limitations stemming from two different sources in the Constitution. But even if this were to occur, the very diversity of views that necessarily would be reflected in any such disposition would seem to me, as a practical matter, to place outside of any limits imposed by the United States Constitution all but the most bizarre orders closing judicial proceedings—the sort of orders which have spawned the saying that "hard cases make bad law."
1
Two of the six judges who heard the case in the New York Court of Appeals dissented. They would have found the order entered by the County Court to be of the type of prior restraint prohibited by Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), and would have affirmed the Appellate Division on the ground that the evidence did not support entry of the order. 43 N.Y.2d 370, 382, 401 N.Y.S.2d 756, 763, 372 N.E.2d 544, 551.
2
Although I am dealing here with access under the Sixth Amendment, it is worthy of note that this Court's decisions emphasizing the protection afforded reporting of judicial proceedings under the First Amendment also point up the grave concern that information relating to the administration of criminal justice be widely available. In Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), for example, the Court noted that "the operation of the judicial system itself . . . is a matter of public interest," id., at 839, 98 S.Ct., at 1542 and that reporting judicial disciplinary proceedings "lies near the core of the First Amendment." Id., at 838, 98 S.Ct., at 1541. And in Nebraska Press Assn. v. Stuart, 427 U.S., at 559, 96 S.Ct., at 2803, the Court recognized that "[t]ruthful reports of public judicial proceedings have been afforded special protection against subsequent punishment" because of the importance of free commentary about the conduct of the criminal justice system. Any question of access under the Sixth Amendment aside, the "extraordinary protections afforded by the First Amendment" with respect to the reporting of judicial proceedings, id., at 560, 96 S.Ct., at 2803, indicate the importance attached to making the public aware of the business of the courts. "The administration of the law is not the problem of the judge or prosecuting attorney alone, but necessitates the active cooperation of an enlightened public." Wood v. Georgia, 370 U.S. 375, 391, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962). See Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946).
3
Forty-eight of the fifty States protect the right to a public trial in one way or another. Forty-five have constitutional provisions specifically guaranteeing the right: Ala.Const., Art. 1, § 6; Alaska Const., Art. 1, § 11; Ariz.Const., Art. 2, §§ 11, 24; Ark.Const., Art. 2, § 10; Cal.Const., Art. 1, § 15; Colo.Const., Art. 2, § 16; Conn.Const., Art. 1, § 8; Del.Const., Art. 1, §§ 7, 9; Fla.Const., Art. 1, § 16; Ga.Const., Art. 1, § 1, ¶ 11; Haw.Const., Art. 1, § 11; Idaho Const., Art. 1, § 13; Ill.Const., Art. 1, § 8; Ind.Const., Art. 1, §§ 12, 13; Iowa Const., Art. 1, § 10; Kan.Const., Bill of Rights, § 10; Ky.Const., Bill of Rights, §§ 11, 14; La.Const., Art. 1, §§ 16, 22; Me.Const., Art. 1, § 6; Mich.Const., Art. 1, § 20; Minn.Const., Art. 1, § 6; Miss.Const., Art. 3, §§ 24, 26; Mo.Const., Art. 1, § 18(a); Mont.Const., Art. 2, § 24; Neb.Const., Art. 1, § 11; N.J.Const., Art. 1, ¶ 10; N.M.Const., Art. 2, § 14; N.C.Const., Art. 1, §§ 18, 24; N.D.Const. Art. 1, §§ 13, 22; Ohio Const., Art. 1, §§ 10, 16; Okla.Const., Art. 2, § 20; Ore.Const., Art. 1, § 11; Pa.Const., Art. 1, §§ 9, 11; R.I.Const., Art. 1, § 10; S.C.Const., Art. 1, §§ 9, 14; S.D.Const., Art. 6, §§ 7, 20; Tenn.Const., Art. 1, §§ 9, 17; Tex.Const., Art. 1, § 10; Utah Const., Art. 1, §§ 11, 12; Vt.Const., Ch. 1, Art. 10th; Va.Const., Art. 1, § 8; Wash.Const., Art. 1, § 22; W.Va.Const., Art. 3, §§ 14, 17; Wis.Const., Art. 1, § 7; Wyo.Const., Art. 1, § 8.
In addition, New Hampshire has held that the Due Process Clause of its Constitution, Pt. 1, Art. 15, requires that criminal trials be held in public. Martineau v. Helgemoe, 117 N.H. 841, 842, 379 A.2d 1040, 1041 (1977). Maryland by judicial decision requires open proceedings. Dutton v. State, 123 Md. 373, 386-387, 91 A. 417, 422-423 (1914). New York by statute provides for open trials. N.Y.Civil Rights Law, Art. 2, § 12 (McKinney 1976).
Only Massachusetts and Nevada appear to have no state provision for public trials. But see Commonwealth v. Marshall, 356 Mass. 432, 253 N.E.2d 333 (1969).
4
"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury."
5
"These words are of great importance, for all Causes ought to be heard, ordered, and determined before the Judges of the Kings Courts openly in the Kings Courts, whither all persons may resort; and in no chambers, or other private places: for the Judges are not Judges of chambers, but of Courts, and therefore in open Court, where the parties Councel and Attorneys attend, ought orders, rules, awards, and Judgments to be made and given, and not in chambers or other private places . . .. Nay, that Judge that ordereth or ruleth a Cause in his chamber, though his order or rule be just, yet offendeth he the Law, (as here it appeareth) because he doth it not in Court."
6
See, e. g., T. Smith, De Republica Anglorum 79, 101 (Alston ed. 1972), published in 1583, where the author, in contrasting the English common law with the civil law system of the Continent, stressed that in England all adjudications were open to the public as a matter of course. See also Trial of John Lilburne (1649), reported in 4 How.St.Tr. 1270, 1274 (1816).
7
Similarly, the Solicitor General, Sir John Hawles, in 1685 in his Remarks upon Mr. Cornish's Trial, 11 How.St.Tr. 455, 460, stated:
"The reason that all matters of law are, or ought to be transacted publicly, is, That any person, unconcerned as well as concerned, may, as amicus curiae, inform the court better, if he thinks they are in an error, that justice may be done: and the reason that all trials are public, is, that any person may inform in point of fact, though not subpoena'd, that truth may be discovered in civil as well as criminal matters."
8
The continuing development in England of the common-law notion of publicity during the years since the founding of our own Nation casts light upon the function of publicity in our system of justice. For example, in a series of cases establishing a privilege for the reporting of judicial proceedings, the courts recognized: "Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of Courts of Justice should be universally known. The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings." King v. Wright, 8 D. & E. 293, 298, 101 Eng.Rep. 1396, 1399 (K.B. 1799). See Davison v. Duncan, 7 El. & Bl. 229, 230-231, 119 Eng.Rep. 1233, 1234 (Q.B. 1857); Wason v. Walter, 4 L.R. 73, 88 (Q.B. 1868).
Important for my purposes is the decision in Daubney v. Cooper, 10 B. & C. 237, 109 Eng.Rep. 438 (K.B. 1829). There the court upheld a verdict for damages in an action by a spectator, who had been ejected from a criminal proceeding, against the magistrate who had ejected him. The court stated:
"[I]t is one of the essential qualities of a court of justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose,—provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed,—have a right to be present for the purpose of hearing what is going on." Id., at 240, 109 Eng.Rep., at 440.
See also Scott v. Scott, [1913] A.C. 417, 438-439 (Haldane, L.C.), 440-441 (Earl of Halsbury).
9
Although a number of States followed the language of Virginia's Declaration, only Vermont copied the Pennsylvania emendation by adding the word "public" to the speedy-trial provision. Vt. Const., Declaration of Rights ch. I, § X (1777), quoted in 1 Schwartz 323. Once again, however, there is no evidence that by so doing Vermont intended to depart from the common-law practice of holding court in public. Indeed, the Vermont Declaration, adopted by the revolutionary legislature in haste, was "virtually [a] verbatim repetitio[n] of the relevant Pennsylvania" article. 1 Schwartz 319. It is thus doubtful that by adding the word "public" Vermont, any more than Pennsylvania, intended to alter existing practice.
10
Nearly every State that has considered the issue has recognized that the public has a strong interest in maintaining open trials. Most of these cases have involved state constitutional provisions modeled on the Sixth Amendment in that the public-trial right is phrased in terms of a guarantee to the accused. See, e. g., Jackson v. Mobley, 157 Ala. 408, 411-412, 47 So. 590, 592 (1908); Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270, 273-274 (1977); Lincoln v. Denver Post, 31 Colo.App. 283, 285-286, 501 P.2d 152, 154 (1972); State ex rel. Gore Newspapers Co. v. Tyson, 313 So.2d 777, 785-788 (Fla.App.1975); Gannett Pacific Corp. v. Richardson, Haw., 580 P.2d 49, 55 (1978); State v. Beaudoin, 386 A.2d 731, 733 (Me.1978); Cox v. State, 3 Md.App. 136, 139-140, 238 A.2d 157, 158-159 (1968); State v. Schmit, 273 Minn. 78, 86-88, 139 N.W.2d 800, 806-807 (1966); State v. Keeler, 52
Mont. 205, 218-219, 156 P. 1080, 1083-1084 (1916); Keene Publishing Corp. v. Keene District Court, 117 N.H. 959, 962-963, 380 A.2d 261, 263-264 (1977); State v. Allen, 73 N.J. 132, 157-160, 373 A.2d 377, 389-390 (1977); Neal v. State, 86 Okl.Cr. 283, 289, 192 P.2d 294, 297 (1948); State v. Holm, 67 Wyo. 360, 382-385, 224 P.2d 500, 508-509 (1950).
Several States have recognized such an interest under constitutional provisions establishing open courts. E. g., State v. White, 97 Ariz. 196, 198, 398 P.2d 903, 904 (1965); Smith v. State, 317 A.2d 20, 23-24 (Del.1974); Johnson v. Simpson, 433 S.W.2d 644, 646 (Ky.1968); Brown v. State, 222 Miss. 863, 869, 77 So.2d 694, 696 (1955); In re Edens, 290 N.C. 299, 306, 226 S.E.2d 5, 9-10 (1976); E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 160-169, 125 N.E.2d 896, 899-904 (1955); State ex rel. Varney v. Ellis, 149 W.Va. 522, 523-524, 142 S.E.2d 63, 65 (1965).
Massachusetts appears to have no case precisely in point. But in Cowley v. Pulsifer, 137 Mass. 392 (1884), the Supreme Judicial Court, in an opinion by Mr. Justice Holmes, stated that the chief advantage of permitting a privilege for publication of reports of judicial proceedings "is the security which publicity gives for the proper administration of justice." Id., at 394. The court continued:
"[This] privilege and the access of the public to the courts stand in reason upon common ground. . . . It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed." Ibid.
11
See, e. g., United States v. Clark, 475 F.2d 240, 246-247 (CA2 1973); Stamicarbon, N. V. v. American Cyanamid Co., 506 F.2d 532, 540-542 (CA2 1974); United States v. Cianfrani, 573 F.2d 835, 852-854 (CA3 1978); Lewis v. Peyton, 352 F.2d 791, 792 (CA4 1965).
The Court today cites no case where the public has been totally excluded from all of a trial or all of a pretrial suppression hearing. See ante, at 388 n. 19. Indeed, in almost every case that the Court cites, no such general exclusion was permitted: In Geise v. United States, 262 F.2d 151, 155 (CA9 1958), for example, the press, members of the bar, and relatives and friends of parties and the witnesses were allowed to remain. Similarly, in United
States ex rel. Orlando v. Fay, 350 F.2d 967, 970 (CA2 1965), the press and members of the bar were admitted at all times. In State v. Croak, 167 La. 92, 94-95, 118 So. 703, 704 (1928), a fair-sized audience composed of members of the public was always present. The court in Beauchamp v. Cahill, 297 Ky. 505, 508, 180 S.W.2d 423, 424 (1944), though it recognized that the trial court could exclude limited classes of spectators in certain circumstances, held that that court could not exclude a "reasonable portion of the public" who wanted to attend, and it disapproved the limited exclusion that did occur. In State v. Callahan, 100 Minn. 63, 110 N.W. 342 (1907), and Hogan v. State, 191 Ark. 437, 86 S.W.2d 931 (1935), the Court does point to cases where a court upheld an exclusion of all the public, though even there the exclusions were for strictly limited periods of time. Those exclusions were over the objections of the defendants, and they surely are questionable law today not only under the Sixth Amendment but under state law as well. See State v. Schmit, 273 Minn., at 86-88, 139 N.W.2d, at 805-807; Commercial Printing Co. v. Lee, 262 Ark., at 95-96, 553 S.W.2d, at 273-274.
Similarly, though the Court cites a number of state statutory provisions that it says contain limitations on public trials, it cites no cases decided under those provisions excluding all the public and the press from trials or suppression hearings. If any such cases exist, which is doubtful, they are few indeed. It appears, rather, that such statutes have been interpreted to permit limited exclusion of certain groups of spectators from trial, but seldom applied so as to result in blanket exclusion of the public and press. For example, in Reeves v. State, 264 Ala. 476, 483, 88 So.2d 561, 567 (1956), the court, in applying the Alabama provision cited by the Court, ante, at 388 n. 19, noted that the trial court had not excluded, among others, "members of the press, radio, television or other news-gathering services, . . . [and] members of the bar." Accord, Ex parte Rudolph, 276 Ala. 392, 393, 162 So.2d 486, 487 (1964). Similarly, in applying the Georgia statute cited by the Court, the courts of that State have not excluded, among others, members of the press and of the bar. E. g., Moore v. State, 151 Ga. 648, 651-652, 658-659, 108 S.E. 47, 49, 52 (1921). Indeed, in Moore, the trial court allowed the press to attend as one of the "parties at interest" not excludable. Id., at 651, 108 S.E., at 49. And in upholding the constitutionality of the Massachusetts statute permitting exclusion in certain cases involving sex crimes, the Supreme Judicial Court noted that the press had not been excluded under the statute, and that it therefore need not reach the constitutionality of the
statute in circumstances where the press was excluded, "even if the statute could be interpreted as permitting such exclusion" of the press, Commonwealth v. Blondin, 324 Mass. 564, 572, 87 N.E.2d 455, 460 (1949). There is no evidence that under any of the other provisions cited by the Court tribunals have excluded all members of the public, including the press, from a trial or suppression proceeding.
The Court in In re Oliver recognized that, even though some cases up to that time had allowed limited departures from publicity, no court had gone so far as to sanction exclusion of the press. 333 U.S., at 272 n. 29, 68 S.Ct., at 507 n. 29. Since that time only the New York courts in this case, and perhaps some isolated others, have departed from this tradition in criminal cases. And although some commentators have criticized the Sixth Amendment approach to establishing a public right of access, they have gone on to find that right rooted in some other provision of the Constitution. E. g., Note, The Right to Attend Criminal Hearings, 78 Colum.L.Rev. 1308, 1326-1331 (1978) (public access right derived from combination of the First and Sixth Amendments). Even Radin, whose ideas in this area Professor Wigmore described as "farfetched," 6 Wigmore § 1834, though he criticized public access, would not have excluded the press and selected members of the public from any trial. Radin, The Right to a Public Trial, 6 Temple L. Q. 381, 394-395 (1932).
12
See cases cited, in n. 10, supra. For example, in Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W. 2d 270 (1977), the Supreme Court of Arkansas held that the exclusion of the public from the voir dire phase of a criminal trial violated the State's public-trial constitutional provision, even though it, like the Sixth Amendment, literally read in favor of only the accused. The court found that members of the public have a strong interest in observing criminal proceedings, inasmuch as they involve crimes against society. And it added that since courthouses, prosecutors, judges, and often defense attorneys are paid for with public funds, the public "has every right to ascertain by personal observation whether its officials are properly carrying out their duties in responsibly and capably administering justice, and it would require unusual circumstances for this right to be held subordinate to the contention of a defendant that he is prejudiced by a public trial (or any part thereof)." Id., at 95, 553 S.W.2d, at 274.
13
The American Bar Association Standards adopt the view that the public has a strong interest in maintaining the openness of criminal trials, and that the Sixth Amendment protects that interest:
"The sixth amendment speaks in terms of the right of the accused to a public trial, but this right does not belong solely to the accused to assert or forgo as he or she desires. . . . The defendant's interest, primarily, is to ensure fair treatment in his or her particular case. While the public's more generalized interest in open trials includes a concern for justice to individual defendants, it goes beyond that. The transcendent reason for public trials is to ensure efficiency, competence, and integrity in the overall operation of the judicial system. Thus, the defendant's willingness to waive the right to a public trial in a criminal case cannot be the deciding factor. . . . It is just as important to the public to guard against undue favoritism or leniency as to guard against undue harshness or discrimination." ABA Project on Standards for Criminal Justice, Fair Trial and Free Press, Standard 8-3.2, p. 15 (App. Draft 1978). (Footnotes omitted.)
14
In 1976, in the Supreme Court for the city of New York, 89.7% of all criminal cases were terminated by dismissal (25.6%) or by plea of guilty (64.1%). N.Y.Leg.Doc. No. 90, Judicial Conference of the State of New York, 22d Annual Report 52 (1977). In the Supreme Courts and County Courts outside New York City, 93.4% of the criminal cases were disposed of by dismissal (18.9%) or by plea of guilty (74.5%). Id., at 56.
As noted, these statistics are characteristic of the criminal justice system across the country. See generally National Institute of Law Enforcement and Criminal Justice, Law Enforcement Assistance Administration, Plea Bargaining in the United States, App. A (1978).
15
The ABA Standards take the position that pretrial suppression hearings are within the scope of the Sixth Amendment's public-trial provision. ABA Project on Standards for Criminal Justice, Fair Trial and Free Press, Standard 8-3.2, p. 15, and n. 1 (App. Draft 1978).
16
This observation is confined to cases where the defendant seeks to close the hearing on the ground that his fair-trial rights will be infringed by an open proceeding. I express no opinion as to whether or when a proceeding subject to the command of the Sixth Amendment may be closed over the objection of the defendant. Nor need I determine what interests other than those of the defendant in a fair trial may support an order of closure. My comments are also confined to rulings within the ambit of the Sixth Amendment's public-trial provision. I thus express no opinion about proceedings, such as those in juvenile court, not otherwise subject to the requirement of the Sixth Amendment. See McKeiver v. Pennsylvania, 403 U.S. 528, 540-541, 91 S.Ct. 1976, 1983-1984, 29 L.Ed.2d 647 (1971) (plurality opinion.)
17
The Court suggests that the public's interest will be served adequately by permitting delayed access to the transcript of the closed proceeding once the danger to the accused's fair-trial right has dissipated. A transcript, however, does not always adequately substitute for presence at the proceeding itself. Also, the inherent delay may defeat the purpose of the public-trial requirement. Later events may crowd news of yesterday's proceeding out of the public view. "As a practical matter . . . the element of time is not unimportant if press coverage is to fulfill its traditional function of bringing news to the public promptly." Nebraska Press Assn. v. Stuart, 427 U.S., at 561, 96 S.Ct., at 2803. Public access is restricted precisely at the time when public interest is at its height. Bridges v. California, 314 U.S. 252, 268, 62 S.Ct. 190, 196, 86 L.Ed. 192 (1941). Moreover, an important event, such as a judicial election or the selection of a prosecuting attorney, may occur when the public is ignorant of the details of judicial and prosecutorial conduct. Finally, although a record is kept for later release, when the proceeding itself is kept secret, it is impossible to know what it would have been like had the pressure of publicity been brought to bear on the parties during the proceeding itself.
| 01
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443 U.S. 709
99 S.Ct. 3086
61 L.Ed.2d 860
Howard L. MORLAND et al.v.Robert A. SPRECHER, Judge, United States Court of Appeals for the Seventh Circuit, et al.
No. 78-1904.
July 2, 1979.
PER CURIAM.
1
On March 26, 1979, the District Court for the Western District of Wisconsin entered a preliminary injunction restraining petitioners from publishing or otherwise disseminating an article entitled "The H-Bomb Secret: How We Got It, Why We're Telling It." On June 21, 1979, one judge of the Court of Appeals for the Seventh Circuit denied in part petitioners' motion for an expedited hearing of their appeal. That hearing is currently set for September 10, 1979.
2
Petitioners seek a writ of mandamus to the Court of Appeals ordering it to expedite their appeal. They claim that parties who have been enjoined from engaging in constitutionally protected speech have a right to prompt appellate review of that injunction. See National Socialist Party v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977). See also Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 96 S.Ct. 237, 46 L.Ed.2d 199 (1975) (BLACKMUN, J., in chambers); Nebraska Press Assn. v. Stuart, 423 U.S. 1327, 96 S.Ct. 251, 46 L.Ed.2d 237 (1975) (BLACKMUN, J., in chambers). In view of their conduct in prosecuting their appeal before the Court of Appeals, however, we conclude that petitioners have effectively relinquished whatever right they might otherwise have had to expedited consideration.
3
The District Court's preliminary injunction was entered on March 26, 1979, yet petitioners waited until June 15, 1979, to file a meaningful motion for expedited review before the Court of Appeals. Prior to that time, petitioners (1) waited two weeks after the District Court entered its injunction before filing a notice of appeal, and then waited another week before proposing that the appeal be accorded special scheduling treatment; (2) in that proposal, suggested an 89-day briefing schedule that—as they knew—provided for oral argument in the case, at the earliest, 10 days after the Court of Appeals' summer recess was to begin; (3) at a subsequent prehearing conference held by the Senior Staff Attorney of the Court of Appeals, asked that the briefing and argument schedule they had originally proposed be extended by an additional three weeks, i. e., into the latter half of July; (4) participated in a second prehearing conference in which a panel of the Court of Appeals discussed scheduling with the parties, and did not object either to the briefing schedule ordered by the court or to the September 10 hearing date; and (5) pursuant to the schedule discussed at the conference, took 81 days to file their opening brief on the merits. It was only upon the filing of that brief on June 15, 1979 (just four days before the Seventh Circuit's scheduled recess was to begin), that they sought expedition. Accordingly, as proposed by petitioners, the onus of expedition would have fallen entirely on the Government, which would have had a severely limited opportunity to respond to petitioners' opening brief, and on the Court of Appeals, whose conscientious attempts during the preceding two months—by way of two prehearing conferences and numerous additional discussions with the parties—to manage its docket in an orderly fashion, would have been frustrated.
4
It is true that between May 8, 1979, and June 15, 1979, petitioners were unsuccessfully seeking reconsideration by the District Court based on newly discovered information. But that information did not affect the essentials of petitioners' legal argument in favor of expedited review of the District Court's March 26 order—i. e., that ever since the order was issued, petitioners had been operating under an allegedly unconstitutional and irreparably injurious prior restraint against the publication of information subject to First Amendment protection. Because they chose not to make that argument to the Court of Appeals until long after it had ripened, and until they had taken close to three months to prepare their own brief on the merits, petitioners forbore any right to expedition that the Constitution might otherwise have afforded them.
5
The motion for leave to file a petition for writ of mandamus is
6
Denied.
7
Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins, dissenting.
8
It is my view that the Court of Appeals, by declining to hear arguments until the conclusion of its summer recess, has unduly delayed plenary consideration of this case. And I do not agree with my Brothers that the petitioners have forfeited whatever rights to an early hearing they might otherwise have had. Our cases indicate that the proffered justification for an injunction against publication should be considered and verified or rejected by appellate courts without unnecessary delay. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); United States v. Thirty-seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); cf. National Socialist Party v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977); Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 96 S.Ct. 237, 46 L.Ed.2d 199 (1975) (BLACKMUN, J., in chambers); Nebraska Press Assn. v. Stuart, 423 U.S. 1327, 96 S.Ct. 251, 46 L.Ed.2d 237 (1975) (BLACKMUN, J., in chambers). As I see it, the Court of Appeals should schedule a hearing herein at the earliest date that is both practicable and consistent with mature consideration of the questions involved. I would have preferred the Court to have reached and stated this conclusion and then, on the assumption that the Court of Appeals would follow this Court's suggestion, to have withheld the issuance of the writ of mandamus. See Connor v. Coleman, 440 U.S. 612, 613-614, 99 S.Ct. 1523, 1524, 59 L.Ed.2d 619 (1979); Connor v. Coleman, 425 U.S. 675, 679, 96 S.Ct. 1814, 1816, 48 L.Ed.2d 295 (1976); Bucolo v. Adkins, 424 U.S. 641, 644, 96 S.Ct. 1086, 1087, 47 L.Ed.2d 301 (1976); Deen v. Hickman, 358 U.S. 57, 58, 79 S.Ct. 1, 2, 3 L.Ed.2d 28 (1958); cf. National Socialist Party v. Skokie, supra, 432 U.S., at 44, 97 S.Ct., at 2206; Nebraska Press Assn. v. Stuart, supra, 423 U.S., at 1325-1326, 96 S.Ct., at 240. Of course, with or without advancement of the hearing schedule in the Court of Appeals, the petitioners, pursuant to 28 U.S.C. § 1254(1), may request this Court to grant certiorari prior to judgment in the Court of Appeals.
| 89
|
443 U.S. 658
99 S.Ct. 3055
61 L.Ed.2d 823
State of WASHINGTON et al., Petitioners,v.WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL ASSOCIATION et al. State of WASHINGTON et al., Petitioners, v. UNITED STATES et al. PUGET SOUND GILLNETTERS ASSOCIATION et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF WASHINGTON (United States et al., Real Parties in Interest).
Nos. 77-983, 78-119 and 78-139.
Argued Feb. 28, 1979.
Decided July 2, 1979.
Syllabus
In 1854 and 1855, the United States entered into a series of treaties with certain Indian tribes whereby the Indians relinquished their interest in certain lands in what is now the State of Washington in exchange for monetary payments, certain relatively small parcels of land reserved for their exclusive use, and other guarantees, including protection of their "right of taking fish at usual and accustomed grounds and stations . . . in common with all citizens of the Territory." The principal question in this extensive litigation concerns the character of the treaty right to take fish. In 1970, the United States, on its own behalf and as trustee for seven Indian tribes, brought suit against the State of Washington in Federal District Court, seeking an interpretation of the treaties and an injunction requiring the State to protect the Indians' share of runs of anadromous fish. At various stages of the proceedings, additional tribes, the State Departments of Fisheries and Game, and a commercial fishing group were joined as parties. The District Court held that under the treaties, the Indians are currently entitled to a 45% to 50% share of the harvestable fish passing through their recognized tribal fishing grounds in the case area, to be calculated on a river-by-river, run-by-run basis, subject to certain adjustments. With a slight modification of one of the adjustments, the Court of Appeals affirmed, and this Court denied certiorari. Pursuant to the District Court's injunction, the Department of Fisheries promulgated regulations protecting the Indians' treaty rights, but the State Supreme Court, in two cases (consolidated here in No. 77-983), ruled that the Fisheries Department could not comply with the federal injunction, holding, inter alia, that, as a matter of federal law, the treaties did not give the Indians a right to a share of the fish runs. The District Court then entered a series of orders enabling it directly to supervise those aspects of the State's fisheries necessary to the preservation of treaty fishing rights. The District Court's power to take such direct action and, in doing so, to enjoin persons who were not parties to the proceedings was affirmed by the Court of Appeals. That court, in a separate opinion, also held that regulations of the International Pacific Salmon Fisheries Commission (IPSFC) posed no impediment to the District Court's interpretation of the treaty language and to its enforcement of that interpretation.
Held :
1. The language of the treaties securing a "right of taking fish . . . in common with all citizens of the Territory" was not intended merely to guarantee the Indians access to usual and accustomed fishing sites and an "equal opportunity" for individual Indians, along with non-Indians, to try to catch fish, but instead secures to the Indian tribes a right to harvest a share of each run of anadromous fish that passes through tribal fishing areas. This conclusion is mandated by a fair appraisal of the purpose of the treaty negotiations, the language of the treaties, and, particularly, this Court's prior decisions construing the treaties. United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089; Puyallup Tribe v. Washington Game Dept., 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (Puyallup I ); Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (Puyallup II ); Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (Puyallup III ). Pp. 674-685.
2. An equitable measure of the common right to take fish should initially divide the harvestable portion of each run that passes through a "usual and accustomed" place into approximately equal treaty and nontreaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount. Cf. Puyallup III, supra. Although the District Court's exercise of its discretion, as slightly modified by the Court of Appeals, is in most respects unobjectionable, the District Court erred in excluding fish taken by the Indians on their reservations from their share of the runs, and in excluding fish caught for the Indians' ceremonial and subsistence needs. Pp. 685-689.
3. The Convention of May 26, 1930, whereby Canada and the United States agreed that the catch of Fraser River salmon should be equally divided between Canadian and American fishermen, subject to regulations proposed by the IPSFC for approval by both countries, does not pre-empt the Indians' fishing rights under the treaties with respect to Fraser River salmon runs passing through certain "usual and accustomed" places of treaty tribes. Pp. 689-692.
4. Any state-law prohibition against compliance with the District Court's decree cannot survive the command of the Supremacy Clause, and the State Game and Fisheries Departments, as parties to this litigation, may be ordered to prepare a set of rules that will implement the court's interpretation of the parties' rights even if state law withholds from them the power to do so. Cf. Puyallup III, supra. Whether or not the Game and Fisheries Departments may be ordered actually to promulgate regulations having effect as a matter of state law, the District Court may assume direct supervision of the fisheries if state recalcitrance or state-law barriers should be continued. If the spirit of cooperation motivating the State Attorney General's representation to this Court that definitive resolution of the basic federal question of construction of the treaties will allow state compliance with federal-court orders is not confirmed by the conduct of state officials, the District Court has the power to undertake the necessary remedial steps and to enlist the aid of appropriate federal law enforcement agents in carrying out those steps. Pp. 3078-3080.
No. 78-119, 573 F.2d 1118, affirmed, and 573 F.2d 1123, vacated and remanded; No. 77-983, 88 Wash.2d 677, 565 P.2d 1151 (first case), and 89 Wash.2d 276, 571 P.2d 1373 (second case), vacated and remanded; No. 78-139, 573 F.2d 1123, vacated and remanded.
1
Slade Gorton, Atty. Gen., for State of Washington.
2
Philip A. Lacovara, Washington, D.C., for Associations of Non-Indian Fishermen.
3
Mason D. Morisset, Seattle, Wash., for the Indian Tribes.
4
Louis F. Claiborne, Washington, D.C., for United States et al.
5
Mr. Justice STEVENS delivered the opinion of the Court.
6
To extinguish the last group of conflicting claims to lands lying west of the Cascade Mountains and north of the Columbia River in what is now the State of Washington,1 the United States entered into a series of treaties with Indian tribes in 1854 and 1855.2 The Indians relinquished their interest in most of the Territory in exchange for monetary payments. In addition, certain relatively small parcels of land were reserved for their exclusive use, and they were afforded other guarantees, including protection of their "right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory." 10 Stat. 1133.
7
The principal question presented by this litigation concerns the character of that treaty right to take fish. Various other issues are presented, but their disposition depends on the answer to the principal question. Before answering any of these questions, or even stating the issues with more precision, we shall briefly describe the anadromous fisheries of the Pacific Northwest, the treaty negotiations, and the principal components of the litigation complex that led us to grant these three related petitions for certiorari.
8
* Anadromous fish hatch in fresh water, migrate to the ocean where they are reared and reach mature size, and eventually complete their life cycle by returning to the fresh-water place of their origin to spawn. Different species have different life cycles, some spending several years and traveling great distances in the ocean before returning to spawn and some even returning to spawn on more than one occasion before dying. 384 F.Supp. 312, 384, 405. See Comment, State Power and the Indian Treaty Right to Fish, 59 Calif.L.Rev. 485, 501, and n. 99 (1971). The regular habits of these fish make their "runs" predictable; this predictability in turn makes it possible for both fishermen and regulators to forecast and to control the number of fish that will be caught or "harvested." Indeed, as the terminology associated with it suggests, the management of anadromous fisheries is in many ways more akin to the cultivation of "crops"—with its relatively high degree of predictability and productive stability, subject mainly to sudden changes in climatic patterns—than is the management of most other commercial and sport fisheries. 384 F.Supp., at 351, 384.
9
Regulation of the anadromous fisheries of the Northwest is nonetheless complicated by the different habits of the various species of salmon and trout involved, by the variety of methods of taking the fish, and by the fact that a run of fish may pass through a series of different jurisdictions.3 Another complexity arises from the fact that the State of Washington has attempted to reserve one species, steelhead trout, for sport fishing and therefore conferred regulatory jurisdiction over that species upon its Department of Game, whereas the various species of salmon are primarily harvested by commercial fishermen and are managed by the State's Department of Fisheries. Id., at 383-385, 389-399. Moreover, adequate regulation not only must take into account the potentially conflicting interests of sport and commercial fishermen, as well as those of Indian and nontreaty fishermen, but also must recognize that the fish runs may be harmed by harvesting either too many or too few of the fish returning to spawn. Id., at 384, 390.
10
The anadromous fish constitute a natural resource of great economic value to the State of Washington. Millions of salmon, with an average weight of from 4 or 5 to about 20 pounds, depending on the species, are harvested each year. Over 6,600 nontreaty fishermen and about 800 Indians make their livelihood by commercial fishing; moreover, some 280,000 individuals are licensed to engage in sport fishing in the State.4 Id., at 387. See id., at 399.
II
11
One hundred and twenty-five years ago when the relevant treaties were signed, anadromous fish were even more important to most of the population of western Washington than they are today. At that time, about three-fourths of the approximately 10,000 inhabitants of the area were Indians. Although in some respects the cultures of the different tribes varied—some bands of Indians, for example, had little or no tribal organization5 while others, such as the Makah and the Yakima, were highly organized—all of them shared a vital and unifying dependence on anadromous fish. Id., at 350. See Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 179, 97 S.Ct. 2616, 2624, 53 L.Ed.2d 667 (BRENNAN, J., dissenting in part).
12
Religious rites were intended to insure the continual return of the salmon and the trout; the seasonal and geographic variations in the runs of the different species determined the movements of the largely nomadic tribes. 384 F.Supp., at 343, 351, 382; 459 F.Supp. 1020, 1079; 520 F.2d 676, 682. Fish constituted a major part of the Indian diet, was used for commercial purposes,6 and indeed was traded in substantial volume.7 The Indians developed food-preservation techniques that enabled them to store fish throughout the year and to transport it over great distances. 384 F.Supp., at 351.8 They used a wide variety of methods to catch fish, including the precursors of all modern netting techniques. Id., at 351, 352, 362, 368, 380. Their usual and accustomed fishing places were numerous and were scattered throughout the area, and included marine as well as fresh-water areas. Id., at 353, 360, 368-369.
13
All of the treaties were negotiated by Isaac Stevens, the first Governor and first Superintendent of Indian Affairs of the Washington Territory, and a small group of advisers. Contemporaneous documents make it clear that these people recognized the vital importance of the fisheries to the Indians and wanted to protect them from the risk that non-Indian settlers might seek to monopolize their fisheries. Id., at 355, 363.9 There is no evidence of the precise understanding the Indians had of any of the specific English terms and phrases in the treaty.10 Id., at 356. It is perfectly clear, however, that the Indians were vitally interested in protecting their right to take fish at usual and accustomed places, whether on or off the reservations, id., at 355, and that they were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right.11
14
Referring to the negotiations with the Yakima Nation, by far the largest of the Indian tribes, the District Court found:
15
"At the treaty council the United States negotiators promised, and the Indians understood, that the Yakimas would forever be able to continue the same off-reservation food gathering and fishing practices as to time, place, method, species and extent as they had or were exercising. The Yakimas relied on these promises and they formed a material and basic part of the treaty and of the Indians' understanding of the meaning of the treaty." Id., at 381 (record citations omitted).
16
See also id., at 363 (similar finding regarding negotiations with the Makah Tribe).
17
The Indians understood that non-Indians would also have the right to fish at their off-reservation fishing sites. But this was not understood as a significant limitation on their right to take fish.12 Because of the great abundance of fish and the limited population of the area, it simply was not contemplated that either party would interfere with the other's fishing rights. The parties accordingly did not see the need and did not intend to regulate the taking of fish by either Indians or non-Indians, nor was future regulation foreseen. Id., at 334, 355, 357.
18
Indeed, for several decades after the treaties were signed, Indians continued to harvest most of the fish taken from the waters of Washington, and they moved freely about the Territory and later the State in search of that resource. Id., at 334. The size of the fishery resource continued to obviate the need during the period to regulate the taking of fish by either Indians or non-Indians. Id., at 352. Not until major economic developments in canning and processing occurred in the last few years of the 19th century did a significant non-Indian fishery develop.13 It was as a consequence of these developments, rather than of the treaty, that non-Indians began to dominate the fisheries and eventually to exclude most Indians from participating in it—a trend that was encouraged by the onset of often discriminatory state regulation in the early decades of the 20th century. Id., at 358, 394, 404, 407; 459 F.Supp., at 1032.14
19
In sum, it is fair to conclude that when the treaties were negotiated, neither party realized or intended that their agreement would determine whether, and if so how, a resource that had always been thought inexhaustible would be allocated between the native Indians and the incoming settlers when it later became scarce.
III
20
Unfortunately, that resource has now become scarce, and the meaning of the Indians' treaty right to take fish has accordingly become critical. The United States Court of Appeals for the Ninth Circuit and the Supreme Court of the State of Washington have issued conflicting decisions on its meaning. In addition, their holdings raise important ancillary questions that will appear from a brief review of this extensive litigation.
21
The federal litigation was commenced in the United States District Court for the Western District of Washington in 1970. The United States, on its own behalf and as trustee for seven Indian tribes, brought suit against the State of Washington seeking an interpretation of the treaties and an injunction requiring the State to protect the Indians' share of the anadromous fish runs. Additional Indian tribes, the State's Fisheries and Game Departments, and one commercial fishing group, were joined as parties at various stages of the proceedings, while various other agencies and groups, including all of the commercial fishing associations that are parties here, participated as amici curiae. 384 F.Supp., at 327, 328, and n. 4; 459 F.Supp., at 1028.
22
During the extensive pretrial proceedings, four different interpretations of the critical treaty language were advanced. Of those, three proceeded from the assumption that the language required some allocation to the Indians of a share of the runs of fish passing through their traditional fishing areas each year. The tribes themselves contended that the treaties had reserved a pre-existing right to as many fish as their commercial and subsistence needs dictated. The United States argued that the Indians were entitled either to a 50% share of the "harvestable" fish that originated in and returned to the "case area" and passed through their fishing places,15 or to their needs, whichever was less. The Department of Fisheries agreed that the Indians were entitled to "a fair and equitable share" stated in terms of a percentage of the harvestable salmon in the area; ultimately it proposed a share of "one-third."
23
Only the Game Department thought the treaties provided no assurance to the Indians that they could take some portion of each run of fish. That agency instead argued that the treaties gave the Indians no fishing rights not enjoyed by non-treaty fishermen except the two rights previously recognized by decisions of this Court—the right of access over private lands to their usual and accustomed fishing grounds, see Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555; United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089, and an exemption from the payment of license fees. See Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115.
24
The District Court agreed with the parties who advocated an allocation to the Indians, and it essentially agreed with the United States as to what that allocation should be. It held that the Indians were then entitled to a 45% to 50% share of the harvestable fish that will at some point pass through recognized tribal fishing grounds in the case area.16 The share was to be calculated on a river-by-river, run-by-run basis, subject to certain adjustments. Fish caught by Indians for ceremonial and subsistence purposes as well as fish caught within a reservation were excluded from the calculation of the tribes' share.17 In addition, in order to compensate for fish caught outside of the case area, i. e., beyond the State's jurisdiction, the court made an "equitable adjustment" to increase the allocation to the Indians. The court left it to the individual tribes involved to agree among themselves on how best to divide the Indian share of runs that pass through the usual and accustomed grounds of more than one tribe, and it postponed until a later date the proper accounting for hatchery-bred fish. 384 F.Supp., at 416-417; 459 F.Supp., at 1129. With a slight modification,18 the Court of Appeals for the Ninth Circuit affirmed, 520 F.2d 676, and we denied certiorari, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97.19
25
The injunction entered by the District Court required the Department of Fisheries (Fisheries) to adopt regulations protecting the Indians' treaty rights. 384 F.Supp., at 416-417. After the new regulations were promulgated, however, they were immediately challenged by private citizens in suits commenced in the Washington state courts. The State Supreme Court, in two cases that are here in consolidated form in No. 77-983, ultimately held that Fisheries could not comply with the federal injunction. Puget Sound Gillnetters Assn. v. Moos, 88 Wash.2d 677, 565 P. 1151 (1977); Fishing Vessel Assn. v. Tollefson, 89 Wash.2d 276, 571 P.2d 1373 (1977).
26
As a matter of federal law, the state court first accepted the Game Department's and rejected the District Court's interpretation of the treaties and held that it did not give the Indians a right to a share of the fish runs, and second concluded that recognizing special rights for the Indians would violate the Equal Protection Clause of the Fourteenth Amendment. The opinions might also be read to hold, as a matter of state law, that Fisheries had no authority to issue the regulations because they had a purpose other than conservation of the resource. In this Court, however, the Attorney General of the State disclaims the adequacy and independence of the state-law ground and argues that the state-law authority of Fisheries is dependent on the answers to the two federal-law questions discussed above. Brief for State of Washington 99. See n. 34, infra. We defer to that interpretation, subject, of course, to later clarification by the State Supreme Court. Because we are also satisfied that the constitutional holding is without merit,20 our review of the state court's judgment will be limited to the treaty issue.
27
When Fisheries was ordered by the state courts to abandon its attempt to promulgate and enforce regulations in compliance with the federal court's decree—and when the Game Department simply refused to comply—the District Court entered a series of orders enabling it, with the aid of the United States Attorney for the Western District of Washington and various federal law enforcement agencies, directly to supervise those aspects of the State's fisheries necessary to the preservation of treaty fishing rights. 459 F.Supp. 1020. The District Court's power to take such direct action and, in doing so, to enjoin persons who were not parties to the proceeding was affirmed by the United States Court of Appeals for the Ninth Circuit. 573 F.2d 1123. That court, in a separate opinion, 573 F.2d 1118, also held that regulations of the International Pacific Salmon Fisheries Commission posed no impediment to the District Court's interpretation of the treaty language and to its enforcement of that interpretation. Subsequently, the District Court entered an enforcement order regarding the salmon fisheries for the 1978 and subsequent seasons, which, prior to our issuance of a writ of certiorari to review the case, was pending on appeal in the Court of Appeals. App. 486-490.
28
Because of the widespread defiance of the District Court's orders, this litigation has assumed unusual significance. We granted certiorari in the state and federal cases to interpret this important treaty provision and thereby to resolve the conflict between the state and federal courts regarding what, if any, right the Indians have to a share of the fish, to address the implications of international regulation of the fisheries in the area, and to remove any doubts about the federal court's power to enforce its orders. 439 U.S. 909, 99 S.Ct. 277, 58 L.Ed.2d 255.
IV
29
The treaties secure a "right of taking fish." The pertinent articles provide:
30
"The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens."21
31
At the time the treaties were executed there was a great abundance of fish and a relative scarcity of people. No one had any doubt about the Indians' capacity to take as many fish as they might need. Their right to take fish could therefore be adequately protected by guaranteeing them access to usual and accustomed fishing sites which could be—and which for decades after the treaties were signed were—comfortably shared with the incoming settlers.
32
Because the sparse contemporaneous written materials refer primarily to assuring access to fishing sites "in common with all citizens of the Territory," the State of Washington and the commercial fishing associations, having all adopted the Game Department's original position, argue that it was merely access that the negotiators guaranteed. It is equally plausible to conclude, however, that the specific provision for access was intended to secure a greater right—a right to harvest a share of the runs of anadromous fish that at the time the treaties were signed were so plentiful that no one could question the Indians' capacity to take whatever quantity they needed. Indeed, a fair appraisal of the purpose of the treaty negotiations, the language of the treaties, and this Court's prior construction of the treaties, mandates that conclusion.
33
A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations. E. g., Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299. When the signatory nations have not been at war and neither is the vanquished, it is reasonable to assume that they negotiated as equals at arm's length. There is no reason to doubt that this assumption applies to the treaties at issue here. See 520 F.2d, at 684.
34
Accordingly, it is the intention of the parties, and not solely that of the superior side, that must control any attempt to interpret the treaties. When Indians are involved, this Court has long given special meaning to this rule. It has held that the United States, as the party with the presumptively su perior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side. "[T]he treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians." Jones v. Meehan, 175 U.S. 1, 11, 20 S.Ct. 1, 5, 44 L.Ed. 49. This rule, in fact, has thrice been explicitly relied on by the Court in broadly interpreting these very treaties in the Indians' favor. Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115; Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555; United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. See also Washington v. Yakima Indian Nation, 439 U.S. 463, 484, 99 S.Ct. 740, 753, 58 L.Ed.2d 740.
35
Governor Stevens and his associates were well aware of the "sense" in which the Indians were likely to view assurances regarding their fishing rights. During the negotiations, the vital importance of the fish to the Indians was repeatedly emphasized by both sides, and the Governor's promises that the treaties would protect that source of food and commerce were crucial in obtaining the Indians' assent. See supra, at 666-668. It is absolutely clear, as Governor Stevens himself said, that neither he nor the Indians intended that the latter "should be excluded from their ancient fisheries," see n. 9, supra, and it is accordingly inconceivable that either party deliberately agreed to authorize future settlers to crowd the Indians out of any meaningful use of their accustomed places to fish. That each individual Indian would share an "equal opportunity" with thousands of newly arrived individual settlers is totally foreign to the spirit of the negotiations.22 Such a "right," along with the $207,500 paid the Indians, would hardly have been sufficient to compensate them for the millions of acres they ceded to the Territory.
36
It is true that the words "in common with" may be read either as nothing more than a guarantee that individual Indians would have the same right as individual non-Indians or as securing an interest in the fish runs themselves. If we were to construe these words by reference to 19th-century property concepts, we might accept the former interpretation, although even "learned lawyers" of the day would probably have offered differing interpretations of the three words.23 But we think greater importance should be given to the Indians' likely understanding of the other words in the treaties and especially the reference to the "right of taking fish"—a right that had no special meaning at common law but that must have had obvious significance to the tribes relinquishing a portion of their pre-existing rights to the United States in return for this promise. This language is particularly meaningful in the context of anadromous fisheries—which were not the focus of the common law because of the relative predictability of the "harvest." In this context, it makes sense to say that a party has a right to "take" rather than merely the "opportunity" to try to catch—some of the large quantities of fish that will almost certainly be available at a given place at a given time.
37
This interpretation is confirmed by additional language in the treaties. The fishing clause speaks of "securing" certain fishing rights, a term the Court has previously interpreted as synonymous with "reserving" rights previously exercised. Winans, 198 U.S., at 381, 25 S.Ct., at 664. See also New York ex rel. Kennedy v. Becker, 241 U.S. 556, 563-564, 36 S.Ct. 705, 707-708, 60 L.Ed. 1166. Because the Indians had always exercised the right to meet their subsistence and commercial needs by taking fish from treaty area waters, they would be unlikely to perceive a "reservation" of that right as merely the chance, shared with millions of other citizens, occasionally to dip their nets into the territorial waters. Moreover, the phrasing of the clause quite clearly avoids placing each individual Indian on an equal footing with each individual citizen of the State. The referent of the "said Indians" who are to share the right of taking fish with "all citizens of the Territory" is not the individual Indians but the various signatory "tribes and bands of Indians" listed in the opening article of each treaty. Because it was the tribes that were given a right in common with non-Indian citizens, it is especially likely that a class right to a share of fish, rather than a personal right to attempt to land fish, was intended.
38
In our view, the purpose and language of the treaties are unambiguous; they secure the Indians' right to take a share of each run of fish that passes through tribal fishing areas. But our prior decisions provide an even more persuasive reason why this interpretation is not open to question. For notwithstanding the bitterness that this litigation has engendered, the principal issue involved is virtually a "matter decided" by our previous holdings.
39
The Court has interpreted the fishing clause in these treaties on six prior occasions. In all of these cases the Court placed a relatively broad gloss on the Indians' fishing rights and more or less explicitly—rejected the State's "equal opportunity" approach; in the earliest and the three most recent cases, moreover, we adopted essentially the interpretation that the United States is reiterating here.
40
In United States v. Winans, supra, the respondent, having acquired title to property on the Columbia River and having obtained a license to use a "fish wheel"—a device capable of catching salmon by the ton and totally destroying a run of fish asserted the right to exclude the Yakimas from one of their "usual and accustomed" places. The Circuit Court for the District of Washington sustained respondent, but this Court reversed. The Court initially rejected an argument that is analogous to the "equal opportunity" claim now made by the State:
41
"[I]t was decided [below] that the Indians acquired no rights but what any inhabitant of the Territory or State would have. Indeed, acquired no rights but such as they would have without the treaty. This is certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more. . . . How the treaty in question was understood may be gathered from the circumstances.
42
"The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed. New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted. And the form of the instrument and its language was adapted to that purpose. . . . There was an exclusive right to fishing reserved within certain boundaries. There was a right outside of those boundaries reserved 'in common with citizens of the Territory.' As a mere right, it was not exclusive in the Indians. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. They were given 'the right of taking fish at all usual and accustomed places,' and the right 'of erecting temporary buildings for curing them.' The contingency of the future ownership of the lands, therefore, was foreseen and provided for; in other words, the Indians were given a right in the land—the right of crossing it to the river—the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty." 198 U.S., at 380-381, 25 S.Ct., at 664.
43
See also Seufert Bros., 249 U.S., at 198, 39 S.Ct., at 205, and Tulee, 315 U.S., at 684, 62 S.Ct., at 864, both of which repeated this analysis, in holding that treaty Indians had rights, "beyond those which other citizens may enjoy," to fish without paying license fees in ceded areas and even in accustomed fishing places lying outside of the lands ceded by the Indians. See n. 22, supra.
44
But even more significant than the language in Winans is its actual disposition. The Court not only upheld the Indians' right of access to respondent's private property but also ordered the Circuit Court on remand to devise some "adjustment and accommodation" that would protect them from total exclusion from the fishery. 198 U.S., at 384, 25 S.Ct., at 665. Although the accommodation it suggested by reference to the Solicitor General's brief in the case is subject to interpretation, it clearly included removal of enough of the fishing wheels to enable some fish to escape and be available to Indian fishermen upstream. Brief for United States, O.T. 1904, No. 180, pp. 54-56. In short, it assured the Indians a share of the fish.
45
In the more recent litigation over this treaty language between the Puyallup Tribe and the Washington Department of Game,24 the Court in the context of a dispute over rights to the run of steelhead trout on the Puyallup River reaffirmed both of the holdings that may be drawn from Winans —the treaty guarantees the Indians more than simply the "equal opportunity" along with all of the citizens of the State to catch fish, and it in fact assures them some portion of each relevant run. But the three Puyallup cases are even more explicit; they clearly establish the principle that neither party to the treaties may rely on the State's regulatory powers or on property law concepts to defeat the other's right to a "fairly apportioned" share of each covered run of harvestable anadromous fish.
46
In Puyallup I, the Court sustained the State's power to impose nondiscriminatory regulations on treaty fishermen so long as they were "necessary" for the conservation of the various species. In so holding, the Court again explicitly rejected the equal-opportunity theory. Although nontreaty fishermen might be subjected to any reasonable state fishing regulation serving any legitimate purpose, treaty fishermen are immune from all regulation save that required for conservation.25
47
When the Department of Game sought to impose a total ban on commercial net fishing for steelhead, the Court held in Puyallup II that such regulation was not a "reasonable and necessary conservation measure" and would deny the Indians their "fairly apportioned" share of the Puyallup River run. 414 U.S., 44-45, 48, 94 S.Ct., 330, 332, 333, 38 L.Ed.2d 254. Although under the challenged regulation every individual fisherman would have had an equal opportunity to use a hook and line to land the steelhead, most of the fish would obviously have been caught by the 145,000 nontreaty licensees rather than by the handful of treaty fishermen. This Court vindicated the Indians' treaty right to "take fish" by invalidating the ban on Indian net fishing and remanding the case with instructions to the state courts to determine the portion of harvestable steelhead that should be allocated to net fishing by members of the tribe. Id., at 48-49, 94 S.Ct., at 333. Even if Winans had not already done so, this unanimous holding foreclosed the basic argument that the State is now advancing.
48
On remand, the Washington state courts held that 45% of the steelhead run was allocable to commercial net fishing by the Indians. We shall later discuss how that specific percentage was determined; what is material for present purposes is the recognition, upheld by this Court in Puyallup III, that the treaty secured the Tribe's right to a substantial portion of the run, and not merely a right to compete with nontreaty fishermen on an individual basis.26
49
Puyallup III also made it clear that the Indians could not rely on their treaty right to exclude others from access to certain fishing sites to deprive other citizens of the State of a "fair apportionment" of the runs. For although it is clear that the Tribe may exclude non-Indians from access to fishing within the reservation, we unequivocally rejected the Tribe's claim to an untrammeled right to take as many of the steelhead running through its reservation as it chose. In support of our holding that the State has regulatory jurisdiction over on-reservation fishing, we reiterated Mr. Justice Douglas' statement for the Court in Puyallup II that the "Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets." 414 U.S., at 49, 94 S.Ct., at 334. It is in this sense that treaty and nontreaty fishermen hold "equal" rights. For neither party may deprive the other of a "fair share" of the runs.
50
Not only all six of our cases interpreting the relevant treaty language but all federal courts that have interpreted the treaties in recent times have reached the foregoing conclusions, see Sohappy v. Smith, 302 F.Supp. 899, 908, 911 (Ore.1969) (citing cases), as did the Washington Supreme Court itself prior to the present litigation. State v. Satiacum, 50 Wash.2d 513, 523-524, 314 P.2d 400, 406 (1957). A like interpretation, moreover, has been followed by the Court with respect to hunting rights explicitly secured by treaty to Indians " 'in common with all other persons,' " Antoine v. Washington, 420 U.S. 194, 205-206, 95 S.Ct. 944, 951, 43 L.Ed.2d 129, and to water rights that were merely implicitly secured to the Indians by treaties reserving land—treaties that the Court enforced by ordering an apportionment to the Indians of enough water to meet their subsistence and cultivation needs. Arizona v. California, 373 U.S. 546, 598-601, 83 S.Ct. 1468, 1496-1498, 10 L.Ed.2d 542, followingUnited States v. Powers, 305 U.S. 527, 528-533, 59 S.Ct. 344, 345-346, 83 L.Ed. 330; Winters v. United States, 207 U.S. 564, 576, 28 S.Ct. 207, 211, 52 L.Ed. 340.
51
The purport of our cases is clear. Nontreaty fishermen may not rely on property law concepts, devices such as the fish wheel, license fees, or general regulations to deprive the Indians of a fair share of the relevant runs of anadromous fish in the case area. Nor may treaty fishermen rely on their exclusive right of access to the reservations to destroy the rights of other "citizens of the Territory." Both sides have a right, secured by treaty, to take a fair share of the available fish. That, we think, is what the parties to the treaty intended when they secured to the Indians the right of taking fish in common with other citizens.
V
52
We also agree with the Government that an equitable measure of the common right should initially divide the harvestable portion of each run that passes through a "usual and accustomed" place into approximately equal treaty and nontreaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount. Although this method of dividing the resource, unlike the right to some division, is not mandated by our prior cases, it is consistent with the 45%-55% division arrived at by the Washington state courts, and affirmed by this Court, in Puyallup III with respect to the steelhead run on the Puyallup River. The trial court in the Puyallup litigation reached those figures essentially by starting with a 50% allocation based on the Indians' reliance on the fish for their livelihoods and then adjusting slightly downward due to other relevant factors. App. to Pet. for Cert. in Puyallup III, O.T. 1976, No. 76-423, pp. C-56 to C-57. The District Court took a similar tack in this case, i. e., by starting with a 50-50 division and adjusting slightly downward on the Indians' side when it became clear that they did not need a full 50%. 384 F.Supp., at 402, 416-417; 459 F.Supp., at 1101; 573 F.2d, at 1129.
53
The division arrived at by the District Court is also consistent with our earlier decisions concerning Indian treaty rights to scarce natural resources. In those cases, after determining that at the time of the treaties the resource involved was necessary to the Indians' welfare, the Court typically ordered a trial judge or special master, in his discretion, to devise some apportionment that assured that the Indians' reasonable livelihood needs would be met. Arizona v. California, supra, 373 U.S., at 600, 83 S.Ct., at 1497; Winters, supra. See Winans, 198 U.S., at 384, 25 S.Ct., at 665. This is precisely what the District Court did here, except that it realized that some ceiling should be placed on the Indians' apportionment to prevent their needs from exhausting the entire resource and thereby frustrating the treaty right of "all [other] citizens of the Territory."
54
Thus, it first concluded that at the time the treaties were signed, the Indians, who comprised three-fourths of the territorial population, depended heavily on anadromous fish as a source of food, commerce, and cultural cohesion. Indeed, it found that the non-Indian population depended on Indians to catch the fish that the former consumed. See supra, at 664-669, and n. 7. Only then did it determine that the Indians' present-day subsistence and commercial needs should be met, subject, of course, to the 50% ceiling. 384 F.Supp., at 342-343.
55
It bears repeating, however, that the 50% figure imposes a maximum but not a minimum allocation. As in Arizona v. California and its predecessor cases, the central principle here must be that Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood—that is to say, a moderate living. Accordingly, while the maximum possible allocation to the Indians is fixed at 50%,27 the minimum is not; the latter will, upon proper submissions to the District Court, be modified in response to changing circumstances. If, for example, a tribe should dwindle to just a few members, or if it should find other sources of support that lead it to abandon its fisheries, a 45% or 50% allocation of an entire run that passes through its customary fishing grounds would be manifestly inappropriate because the livelihood of the tribe under those circumstances could not reasonably require an allotment of a large number of fish.
56
Although the District Court's exercise of its discretion, as slightly modified by the Court of Appeals, see n. 18, supra, is in most respects unobjectionable, we are not satisfied that all of the adjustments it made to its division are consistent with the preceding analysis.
57
The District Court determined that the fish taken by the Indians on their reservations should not be counted against their share. It based this determination on the fact that Indians have the exclusive right under the treaties to fish on their reservations. But this fact seems to us to have no greater significance than the fact that some nontreaty fishermen may have exclusive access to fishing sites that are not "usual and accustomed" places. Shares in the fish runs should not be affected by the place where the fish are taken. Cf. Puyallup III, 433 U.S., at 173-177, 97 S.Ct., at 2621-2623.28 We therefore disagree with the District Court's exclusion of the Indians' on-reservation catch from their portion of the runs.29
58
This same rationale, however, validates the Court-of-Appeals-modified equitable adjustment for fish caught outside the jurisdiction of the State by nontreaty fishermen from the State of Washington. See n. 18, supra, and accompanying text. So long as they take fish from identifiable runs that are destined for traditional tribal fishing grounds, such persons may not rely on the location of their take to justify excluding it from their share. Although it is true that the fish involved are caught in waters subject to the jurisdiction of the United States, rather than of the State, see 16 U.S.C. §§ 1811, 1812, the persons catching them are nonetheless "citizens of the Territory" and as such the beneficiaries of the Indians' reciprocal grant of land in the treaties as well as the persons expressly named in the treaties as sharing fishing rights with the Indians. Accordingly, they may justifiably be treated differently from nontreaty fishermen who are not citizens of Washington. The statutory provisions just cited are therefore important in this context only because they clearly place a responsibility on the United States, rather than the State, to police the take of fish in the relevant waters by Washington citizens insofar as is necessary to assure compliance with the treaties.
59
On the other hand, as long as there are enough fish to satisfy the Indians' ceremonial and subsistence needs, we see no justification for the District Court's exclusion from the treaty share of fish caught for these purposes. We need not now decide whether priority for such uses would be required in a period of short supply in order to carry out the purposes of the treaty. See 384 F.Supp., at 343. For present purposes, we merely hold that the total catch—rather than the commercial catch—is the measure of each party's right.30
60
Accordingly, any fish (1) taken in Washington waters or in United States waters off the coast of Washington, (2) taken from runs of fish that pass through the Indians' usual and accustomed fishing grounds, and (3) taken by either members of the Indian tribes that are parties to this litigation, on the one hand, or by non-Indian citizens of Washington, on the other hand, shall count against that party's respective share of the fish.
VI
61
Regardless of the Indians' other fishing rights under the treaties, the State argues that an agreement between Canada and the United States pre-empts their rights with respect to the sockeye and pink salmon runs on the Fraser River.
62
In 1930, the United States and Canada agreed that the catch of Fraser River salmon should be equally divided between Canadian and American fishermen. Convention of May 26, 1930, 50 Stat. 1355, as amended by [1957] 8 U.S.T. 1058. To implement this agreement, the two Governments established the International Pacific Salmon Fisheries Commission (IPSFC). Each year that Commission proposes regulations to govern the time, manner, and number of the catch by the fishermen of the two countries; those regulations become effective upon approval of both countries.
63
In the United States, pursuant to statute and Presidential designation, enforcement of those regulations is vested in the National Marine Fisheries Service, which, in turn, may authorize the State of Washington to act as the enforcing agent. Sockeye Salmon or Pink Salmon Fishing Act of 1947, 61 Stat. 511, as amended, 16 U.S.C. § 776 et seq. (hereinafter Sockeye Act). For many years Washington has accepted this responsibility and enacted IPSFC regulations into state statutory law.
64
The Fraser River salmon run passes through certain "usual and accustomed" places of treaty tribes. The Indians have therefore claimed a share of these runs. Consistently with its basic interpretation of the Indian treaties, the District Court in its original decision held that the tribes are entitled to up to one-half of the American share of any run that passes through their "usual and accustomed" places. To implement that holding, the District Court also entered an order authorizing the use by Indians of certain gear prohibited by IPSFC regulations then in force. 384 F.Supp., at 392-393, 411. The Court of Appeals affirmed, 520 F.2d at 689-690, and we denied certiorari. 423 U.S. 1086.
65
In later proceedings commenced in 1975, the State of Washington contended in the District Court that any Indian rights to Fraser River salmon were extinguished either implicitly by the later agreement with Canada or more directly by the IPSFC regulations promulgated pursuant to those agreements insofar as they are inconsistent with the District Court's order. The State's claim was rejected by the District Court and the Court of Appeals. 459 F.Supp., at 1050-1056; 573 F.2d, at 1120-1121.
66
First, we agree with the Court of Appeals that the Convention itself does not implicitly extinguish the Indians' treaty rights. Absent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights, e. g., Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697, and there is no reason to do so here. Indeed, the Canadian Government has long exempted Canadian Indians from regulations promulgated under the Convention and afforded them special fishing rights.
67
We also agree with the United States that the conflict between the District Court's order and IPSFC does not present us with a justiciable issue. The initial conflict occasioned by the regulations for the 1975 season has been mooted by the passage of time, and there is little prospect that a similar conflict will revive and yet evade review. See DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705, 40 L.Ed.2d 164. Since 1975, the United States, in order to protect the Indian rights, has exercised its power under Art. VI of the Convention and refused to give the necessary approval to those portions of the IPSFC regulations that affected Indian fishing rights. Those regulations have accordingly not gone into effect in the United States. The Indians' fishing rights and responsibilities have instead been the subject of separate regulations promulgated by the Interior Department, under its general Indian powers, 25 U.S.C. §§ 2, 9; see 25 CFR § 256.11 et seq. (1978); 50 CFR § 371.1 et seq. (1978); 25 CFR § 256.11 et seq. (1979), and enforced by the National Marine Fisheries Service directly, rather than by delegation to the State. The District Court's order is fully consistent with those regulations.31 To the extent that any Washington State statute imposes any conflicting obligations, the statute is without effect under the Sockeye Act and must give way to the federal treaties, regulations, and decrees. E. g., Missouri v. Holland, 252 U.S. 416, 432, 40 S.Ct. 382, 383, 64 L.Ed. 641.
VII
68
In addition to their challenges to the District Court's basic construction of the treaties, and to the scope of its allocation of fish to treaty fishermen, the State and the commercial fishing associations have advanced two objections to various remedial orders entered by the District Court.32 It is claimed that the District Court has ordered a state agency to take action that it has no authority to take as a matter of state law and that its own assumption of the authority to manage the fisheries in the State after the state agencies refused or were unable to do so was unlawful.33
69
These objections are difficult to evaluate in view of the representations to this Court by the Attorney General of the State that definitive resolution of the basic federal question of construction of the treaties will both remove any state-law impediment to enforcement of the State's obligations under the treaties,34 and enable the State and Fisheries to carry out those obligations.35 Once the state agencies comply, of course, there would be no issue relating to federal authority to order them to do so or any need for the District Court to continue its own direct supervision of enforcement efforts.
70
The representations of the Attorney General are not binding on the courts and legislature of the State, although we assume they are authoritative within its executive branch. Moreover, the State continues to argue that the District Court exceeded its authority when it assumed control of the fisheries in the State, and the commercial fishing groups continue to argue that the District Court may not order the state agencies to comply with its orders when they have no state-law authority to do so. Accordingly, although adherence to the Attorney General's representations by the executive, legislative, and judicial officials in the State would moot these two issues, a brief discussion should foreclose the possibility that they will not be respected. State-law prohibition against compliance with the District Court's decree cannot survive the command of the Supremacy Clause of the United States Constitution. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5; Ableman v. Booth, 21 How. 506, 16 L.Ed. 169. It is also clear that Game and Fisheries, as parties to this litigation, may be ordered to prepare a set of rules that will implement the Court's interpretation of the rights of the parties even if state law withholds from them the power to do so. E. g., North Carolina Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586; Griffin v. County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 496; Tacoma v. Taxpayers, 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345. Once again the answer to a question raised by this litigation is largely dictated by our Puyallup trilogy. There, this Court mandated that state officers make precisely the same type of allocation of fish as the District Court ordered in this case. See Puyallup III, 433 U.S., at 177, 97 S.Ct., at 2623.
71
Whether Game and Fisheries may be ordered actually to promulgate regulations having effect as a matter of state law may well be doubtful. But the District Court may prescind that problem by assuming direct supervision of the fisheries if state recalcitrance or state-law barriers should be continued. It is therefore absurd to argue, as do the fishing associations, both that the state agencies may not be ordered to implement the decree and also that the District Court may not itself issue detailed remedial orders as a substitute for state supervision. The federal court unquestionably has the power to enter the various orders that state official and private parties have chosen to ignore, and even to displace local enforcement of those orders if necessary to remedy the violations of federal law found by the court. E. g., Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522; Milliken v. Bradley, 433 U.S. 267, 280-281, 290, 97 S.Ct. 2749, 53 L.Ed.2d 745; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554. Even if those orders may have been erroneous in some respects, all parties have an unequivocal obligation to obey them while they remain in effect.
72
In short, we trust that the spirit of cooperation motivating the Attorney General's representation will be confirmed by the conduct of state officials. But if it is not, the District Court has the power to undertake the necessary remedial steps and to enlist the aid of the appropriate federal law enforcement agents in carrying out those steps. Moreover, the comments by the Court of Appeals strongly imply that it is prepared to uphold the use of stern measures to require respect for federal-court orders.36
73
The judgments of the Court of Appeals for the Ninth Circuit, and the Supreme Court of the State of Washington are vacated and the respective causes are remanded to those courts for further proceedings not inconsistent with this opinion, except that the judgment in United States v. Washington, 573 F.2d 1118 (the International Fisheries case) is affirmed.
74
So ordered.
75
Mr. Justice POWELL, with whom Mr. Justice STEWART and Mr. Justice REHNQUIST join, dissenting in part.
76
I join Parts I-III of the Court's opinion. I am not in agreement, however, with the Court's interpretation of the treaties negotiated in 1854 and 1855 with the Indians of the Washington Territory. The Court's opinion, as I read it, construes the treaties' provision "of taking fish . . . in common" as guaranteeing the Indians a specified percentage of the runs of the anadromous fish passing land upon which the Indians traditionally have fished. Indeed, it takes as a starting point for determining fishing rights an equal division of these fish between Indians and non-Indians. Ante, at 685 et seq. As I do not believe that the language and history of the treaties can be construed to support the Court's interpretation, I dissent.
77
* At issue in these cases is the meaning of language found in six similar Indian treaties negotiated and signed in 1854 and 1855.1 Each of the treaties provides substantially that "[t]he right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing."2 The question before us is whether this "common" fishing right is a right only of access to usual and accustomed fishing sites for the purpose of fishing there, or includes the greater right to exclude others from taking a particular portion of the fish that pass through the sites. As the Court observes, at the time the treaties were signed there was no need to address this question, for the surfeit of fish made lack of access to fishing areas the only constraint upon supply. Nonetheless, I believe that the compelling inference to be drawn from the language and history of the treaties is that the Indians sought and retained only the right to go to their accustomed fishing places and there to fish along with non-Indians. In addition, the Indians retained the exclusive right to take fish on their reservations, a right not involved in this litigation. In short, they have a right of access to fish.
78
Nothing in the language of the treaties indicates that any party understood that constraints would be placed on the amount of fish that anyone could take, or that the Indians would be guaranteed a percentage of the catch. Quite to the contrary, the language confers upon non-Indians precisely the same right to fish that it confers upon Indians, even in those areas where the Indians traditionally had fished. United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). As it cannot be argued that Congress intended to guarantee non-Indians any specified percentage of the available fish, there is neither force nor logic to the argument that the same language—the "right of taking fish"—does guarantee such a percentage to Indians.
79
This conclusion is confirmed by the language used in the treaty negotiated with the Yakima Tribe, which explicitly includes what apparently is implicit in each of the treaties: the Indians' right to take fish on their reservations is exclusive. Thus, the Yakima Treaty provides that "[t]he exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places in common with citizens of the Territory . . . ." 12 Stat. 953. There is no reason apparent from the language used in the treaties why the "right of taking fish" should mean one thing for purposes of the exclusive right of reservation fishing and quite another for purposes of the "common" right of fishing at usual and accustomed places. Since the Court interprets the right of taking fish in common to be an entitlement to half of the entire catch taken from fisheries passing the Indians' traditional fishing grounds, it therefore should follow that the Court would interpret the exclusive right of taking fish to be an entitlement to all of the fish taken from fisheries passing the Indians' reservations. But the Court apparently concedes that this exclusive right is not of such Draconian proportions. Indeed, the Court would reduce the Indians' 50% portion by those fish caught on the reservation. The more reasonable conclusion, therefore, is that when the Indians and Governor Stevens agreed upon a "right of taking fish," they understood this right to be one of access to fish—exclusive access with respect to fishing places on the reservation, and common access with respect to fishing places off the reservation.3
80
In addition to the language of the treaties, the historical setting in which they were negotiated supports the inference that the fishing rights secured for the Indians were rights of access alone. The primary purpose of the six treaties negotiated by Governor Stevens was to resolve growing disputes between the settlers claiming title to land in the Washington Territory under the Land Donation Act of 1850, 9 Stat. 437, and the Indians who had occupied the land for generations. Under the bargain struck in the treaties, the Indians ceded their claims to vast tracts of land, retaining only certain specified areas as reservations, where they would have exclusive rights of possession and use. In exchange, the Indian tribes were given substantial sums of money and were promised various forms of aid. See, e. g., Treaty of Medicine Creek, 10 Stat. 1132. By thus separating the Indians from the settlers it was hoped that friction could be minimized.
81
The negotiators apparently realized, however, that restricting the Indians to relatively small tracts of land might interfere with their securing food. See letter of George Gibbs to Captain McClellan, App. 326 ("[The Indians] require the liberty of motion for the purpose of seeking, in their proper season, roots, berries, and fish" ). This necessary "liberty of motion" was jeopardized by the title claims of the settlers whose land abutted or would abut—the waterways from which fish traditionally had been caught. Thus, in Governor Stevens' report to the Commissioner of Indian Affairs, he noted the tension between the land rights afforded settlers under the 1850 Land Donation Act and the Indians' need to have some access to the fisheries. Although he expressed the view that "[i]t never could have been the intention of Congress that Indians should be excluded from their ancient fisheries," he noted that "no condition to this effect was inserted in the donation act," and therefore recommended the question "should be set at rest by law." Report of Governor Stevens to the Commissioner of Indian Affairs, App. 327. Viewed within this historical context, the common fishing right reserved to the Indians by the treaties of 1854 and 1855 could only have been the right, over and above their exclusive fishing right on their reservations, to roam off the reservations in order to reach fish at the locations traditionally used by the Indians for this purpose. On the other hand, there is no historical indication that any of the parties to the treaties understood that the Indians would be specifically guaranteed some set portion of the fisheries to which they traditionally had had access.
II
82
Prior decisions of this Court have prevented the dilution of these treaty rights, but none has addressed the issue now before us. I read these decisions as supporting the interpretation set forth above. This is particularly true of United States v. Winans, supra, the case most directly relevant. In that case a settler had constructed several fish wheels in the Columbia River. These fish wheels were built at locations where the Indians traditionally had fished, and " 'necessitate[d] the exclusive possession of the space occupied by the wheels,' " 198 U.S., at 380, 25 S.Ct., at 664, thereby interfering with the Indians' treaty right of access to fish. This Court reviewed in some detail the precise nature of the Indians' fishing rights under the Yakima Treaty, and concluded:
83
"[The treaties] reserved rights . . . to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein. There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of those boundaries reserved 'in common with citizens of the Territory.' As a mere right, it was not exclusive in the Indians. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. They were given 'the right of taking fish at all usual and accustomed places,' and the right 'of erecting temporary buildings for curing them.' The contingency of the future ownership of the lands, therefore, was foreseen and provided for; in other words, the Indians were given a right in the land,—the right of crossing it to the river,—the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty." Id., at 381, 25 S.Ct., at 664 (emphasis added).
84
The Court thus viewed these treaties as intended to "giv[e] a right in the land"—a "servitude" upon all non-Indian land—to enable Indians to fish "in common with citizens of the Territory." The focus was on access to the traditional fishing areas for the purpose of enjoying the "right of fishing." Ibid. The Winans Court concluded, on the facts before it, that the right of access to fish in these areas had been abridged. It stated that "[i]n the actual taking of fish white men may not be confined to a spear or crude net, but it does not follow that they may construct and use a device which gives them exclusive possession of the fishing places, as it is admitted a fish wheel does." Id., at 382, 25 S.Ct., at 664 (emphasis added). Thus, Winans was decided solely upon the basis of a treaty-secured right of access to fish. Moreover, the Court's analysis of the treaty right at issue in Winans strongly indicates that nothing more than a right of access fairly could be inferred from the treaty.4
85
Nor do the Puyallup cases interpret the treaties to require that any specified proportion of the catch be reserved for Indians. Indeed, Puyallup Tribe v. Washington Game Dept., 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968) (Puyallup I ), consistently with Winans, described the right of Indians under the treaties as "the right to fish 'at all usual and accustomed places.' " 391 U.S., at 398, 88 S.Ct., at 1728.5 The issue before the Court in Puyallup I was the extent to which the State could regulate fishing. It held:
86
"[T]he 'right' to fish outside the reservation was a treaty 'right' that could not be qualified or conditioned by the State. But 'the time and manner of fishing . . . necessary for the conservation of fish,' not being defined or established by the treaty, were within the reach of state power." Id., at 399, 88 S.Ct., at ---.
87
The Court today finds support for its views in Puyallup I because the Court there recognized that, apart from conservation measures, the State could not impose restrictive regulations on the treaty rights of Indians. But it does not follow from this that an affirmative right to a specified percentage of the catch is guaranteed by the treaties to Indians or to non-Indians, for the Court misapprehends the nature of the basic right sought to be preserved by Congress. This, as noted above, was a right of the Indians to reach their usual and accustomed fishing areas. Put differently, this right, described in Winans as a servitude or right over land not owned by the Indians, entitled the Indians to trespass on any land when necessary to reach their traditional fishing areas, and is a right not enjoyed by non-Indian residents of the area.
88
In permitting the State to place limitations on the Indians' access rights when conservation so requires, the Court went further in Puyallup I and suggested that even regulations thus justified would have to satisfy the requirements of "equal protection implicit in the phrase 'in common with.' " 391 U.S., at 403, 88 S.Ct., at 1731. Accordingly, in Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (1973) (Puyallup II ), we considered whether the conservation measures taken by the State had been evenhanded in the treatment of the Indians. At issue was a Washington State ban on all net fishing—by both Indians and non-Indians—for steelhead trout in the Puyallup River. According to testimony before the trial court, the annual run of steelhead trout in the Puyallup River was between 16,000 and 18,000, while unlimited sport fishing would result in the taking of between 12,000 and 14,000 steelhead annually. Because the escape of at least 25% of the entire run was required for hatcheries and spawning, the sport fishing totally pre-empted all commercial fishing by Indians. The State therefore imposed a ban on all net fishing. The Indians claimed that this ban amounted to an improper subordination of their treaty rights to the privilege of recreational fishing enjoyed by non-Indians.
89
We held in Puyallup II that the ban on net fishing, as it applied to Indians covered by treaty, was an infringement of their rights. The State in the name of conservation was discriminating against the Indians "because all Indian net fishing is barred and only hook-and-line fishing, entirely preempted by non-Indians, is allowed." Id., at 48, 94 S.Ct., at 333. Because "[o]nly an expert could fairly estimate what degree of net fishing plus fishing by hook and line would allow the escapement of fish necessary for perpetuation of the species," ibid., we remanded to the Washington courts for a fair apportionment of the steelhead run between Indian net fishing and non-Indian sport fishing.
90
Relying upon the reference in Puyallup II to "apportionment," the Court expansively reads the decision in that case as strongly implying, if not holding, that the catch at Indians' "accustomed" fishing sites must be apportioned between Indian and non-Indian fishermen. This view certainly is not a necessary reading of Puyallup II. Indeed, I view it as a quite unjustified extension of that case. Puyallup II addressed an extremely narrow situation: where there had been "discrimination" by state regulations under which "all Indian net fishing [was] barred and only hook-and-line fishing, entirely pre-empted by non-Indians, [was] allowed." Ibid. In any event, to the extent language in Puyallup II may be read as supporting some general apportionment of the catch, it is dictum that is plainly incompatible with the language and historical understanding of these treaties.6
91
Emerging from our decisions in Winans, Puyallup I, and Puyallup II, therefore, is the proper approach to interpretation of the Indians' common fishing rights at the present time, when demand outstrips supply. The Indians have the right to go to their traditional fishing grounds to fish. Once there, they cannot be restricted in their methods or in the size of their take, save insofar as restrictions are required for conserving the fisheries from which they draw. Even in situations where such regulations are required, however, the State must be evenhanded in limiting Indian and non-Indian fishing activity. It is not free to make the determination—apparently made by Washington with respect to the ban on net fishing in the Puyallup River—that Indian fishing rights will be totally subordinated to the interests of non-Indians.7
III
92
In my view, the District Court below—and now this Court—has formulated an apportionment doctrine that cannot be squared with the language or history of the treaties, or indeed with the prior decisions of this Court. The application of this doctrine, and particularly the construction of the term "in common" as requiring a basic 50-50 apportionment, is likely to result in an extraordinary economic windfall to Indian fishermen in the commercial fish market by giving them a substantial position in the market wholly protected from competition from non-Indian fishermen.8 Indeed, non-Indian fishermen apparently will be required from time to time to stay out of fishing areas completely while Indians catch their court-decreed allotment. In sum, the District Court's decision will discriminate quite unfairly against non-Indians.9
93
To be sure, if it were necessary to construe the treaties to produce these results, it would be our duty so to construe them. But for the reasons stated above, I think the Court's construction virtually ignores the historical setting and purposes of the treaties, considerations that bear compellingly upon a proper reading of their language. Nor do the prior decisions of this Court support or justify what seems to me to be a substantial reformation of the bargain struck with the Indians in 1854-1855.
94
I would hold that the treaties give to the Indians several significant rights that should be respected. As made clear in Winans, the purpose of the treaties was to assure to Indians the right of access over private lands so that they could continue to fish at their usual and accustomed fishing grounds. Indians also have the exclusive right to fish on their reservations, and are guaranteed enough fish to satisfy their ceremonial and subsistence needs. Moreover, as subsequently construed, the treaties exempt Indians from state regulation (including the payment of license fees) except as necessary for conservation in the interest of all fishermen. Finally, under Puyallup II, it is settled that even a facially neutral conservation regulation is invalid if its effect is to discriminate against Indian fishermen. These rights, privileges, and exemptions—possessed only by Indians—are quite substantial. I find no basis for according them additional advantages.
1
By three earlier treaties the United States had extinguished the conflicting claims of Spain in 1820 and Russia in 1824, 8 Stat. 252, 302, and Great Britain in 1846, 9 Stat. 869. In 1848, Congress established the Oregon Territory, 9 Stat. 323; that statute provided that nothing contained therein "shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians." In 1850, Congress authorized the negotiation of treaties to extinguish the Indian claims to land lying west of the Cascade Mountains, 9 Stat. 437. In 1853, the Washington Territory, which includes the present State of Washington, was organized out of the Oregon Territory. Ch. 90, 10 Stat. 172.
2
Treaty of Medicine Creek (10 Stat. 1132); Treaty of Point Elliott (12 Stat. 927); Treaty of Point No Point (12 Stat. 933); Treaty of Neah Bay (12 Stat. 939); Treaty with the Yakamas (12 Stat. 951); and Treaty of Olympia (12 Stat. 971). The parties to the treaties and to this litigation include these Indian tribes: Hoh; Lower Elwha Band of Clallam Indians; Lummi; Makah; Muckleshoot; Nisqually; Nooksack; Port Gamble Band of Clallam Indians; Puyallup; Quileute; Quinault; Sauk-Suiattle; Skokomish; Squaxin Island; Stillaguamish; Suquamish; Swinomish; Tulalip; Upper Skagit; and Yakima Nation. D.C., 384 F.Supp. 312, 349; D.C., 459 F.Supp. 1020, 1028.
3
For example, pink and sockeye salmon hatched in Canada's Fraser River pass through the Strait of Juan de Fuca in the State of Washington, swim out into international waters on the open sea, and return through the strait to the river, passing on the way the usual and accustomed fishing grounds of the Makah Indian Tribe once again in Washington. 384 F.Supp., at 392. During much of the return run during which they pass through international, state, and Canadian waters, the fish are in optimum harvestable condition. See also id., at 386-387, regarding the Puget Sound and Olympic Peninsula origin chinook salmon that pass through international waters, as well as those of Washington, Canada, and Alaska.
4
Although in terms of the number and weight of the fish involved, the commercial salmon catch is far more substantial than the recreational steelhead catch, the latter apparently provides the State with more revenue than the former, involves more people, and has accordingly been a more controversial political issue within the State. See id., at 399.
5
Indeed, the record shows that the territorial officials who negotiated the treaties on behalf of the United States took the initiative in aggregating certain loose bands into designated tribes and even appointed many of the chiefs who signed the treaties. Id., at 354-355, 366.
6
"From the earliest known times, up to and beyond the time of the . . . treaties, the Indians comprising each of the treating tribes and bands were primarily a fishing, hunting and gathering people dependent almost entirely upon the natural animal and vegetative resources of the region for their subsistence and culture. They were heavily dependent upon anadromous fish for their subsistence and for trade with other tribes and later with the settlers. Anadromous fish was the great staple of their diet and livelihood. They cured and dried large quantities for year around use, both for themselves and for others through sale, trade, barter and employment." Id., at 406. See also 520 F.2d 676, 682 ("The Indians west of the Cascade Mountains were known as 'fish-eaters'; their diets, social customs, and religious practices centered on the capture of fish").
7
"At the time of the treaties, trade was carried on among the Indian groups throughout a wide geographic area. Fish was a basic element of the trade. There is some evidence that the volume of this intra-tribal trade was substantial, but it is not possible to compare it with the volume of present day commercial trading in salmon. Such trading was, however, important to the Indians at the time of the treaties. In addition to potlatching, which is a system of exchange between communities in a social context often typified by competitive gifting, there was a considerable amount of outright sale and trade beyond the local community and sometimes over great distances. In the decade immediately preceding the treaties, Indian fishing increased in order to accommodate increased demand for local non-Indian consumption and for export, as well as to provide money for purchase of introduced commodities and to obtain substitute non-Indian goods for native products which were no longer available because of the non-Indian movement into the area. Those involved in negotiating the treaties recognized the contribution that Indian fishermen made to the territorial economy because Indians caught most of the non-Indians' fish for them, plus clams and oysters." 384 F.Supp., at 351-352 (citations to record omitted). See also id., at 364 (Makah Tribe "maintained from time immemorial a thriving economy based on commerce" in "marine resources").
8
In late December 1854, one territorial official wrote the Commissioner of Indian Affairs that "[t]he Indians on Puget Sound . . . form a very considerable portion of the trade of the Sound. . . . They catch most of our fish, supplying not only our people with clams and oysters, but salmon to those who cure and export it." App. 329.
9
Governor Stevens in discussing the policy that he intended to pursue during negotiations with the tribes, in a letter dated September 16, 1854, to the Commissioner of Indian Affairs, said:
"The subject of the right of fisheries is one upon which legislation is demanded. It never could have been the intention of Congress that Indians should be excluded from their ancient fisheries; but, as no condition to this effect was inserted in the donation act, the question has been raised whether persons taking claims, including such fisheries, do not possess the right of monopolizing. It is therefore desirable that this question should be set at rest by law." Id., at 327. See also id., at 332.
The Governor's concern with protecting the Indians' continued exploitation of their accustomed fisheries was reflected in his assurances to the Indians during the treaty negotiations that under the treaties they would be able to go outside of reservation areas for the purpose of harvesting fish. His statement at the signing of the Treaty of Point Elliott on Monday, January 22, 1855, was characteristic:
"We want to place you in homes where you can cultivate the soil, using potatoes and other articles of food, and where you will be able to pass in canoes over the waters of the Sound and catch fish and back to the mountains to get roots and berries." Id., at 329-330.
10
Indeed, the translation of the English words was difficult because the interpreter used a "Chinook jargon" to explain treaty terms, and that jargon not only was imperfectly (and often not) understood by many of the Indians but also was composed of a simple 300-word commercial vocabulary that did not include words corresponding to many of the treaty terms. 384 F.Supp., at 330, 355-356, 364, 381; 520 F.2d, at 683.
11
For example, Governor Stevens made the following statement to the Indians gathered at Point-No-Point to negotiate the treaty bearing that name:
"Are you not my children and also children of the Great Father? What will I not do for my children, and what will you not for yours? Would you not die for them? This paper is such as a man would give to his children and I will tell you why. This paper gives you a home. Does not a father give his children a home? . . . This paper secures your fish. Does not a father give food to his children?" App. 330-331.
12
"There is nothing in the written records of the treaty councils or other accounts of discussions with the Indians to indicate that the Indians were told that their existing fishing activities or tribal control over them would in any way be restricted or impaired by the treaty. The most that could be implied from the treaty context is that the Indians may have been told or understood that non-Indians would be allowed to take fish at the Indian fishing locations along with the Indians." 384 F.Supp., at 357.
13
"The non-Indian commercial fishing industry did not fully develop in the case area until after the invention and perfection of the canning process. The first salmon cannery in Puget Sound began in 1877 with a small operation at Mukilteo. Large-scale development of the commercial fisheries did not commence in Puget Sound until the mid-1890's. The large-scale development of the commercial fishing industry in the last decades of the Nineteenth Century brought about the need for regulation of fish harvests." Id., at 352 (record citations omitted). See also id., at 406.
14
The impact of illegal regulation, see Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115, and of illegal exclusionary tactics by non-Indians, see United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089, in large measure accounts for the decline of the Indian fisheries during this century and renders that decline irrelevant to a determination of the fishing rights the Indians assumed they were securing by initialing the treaties in the middle of the last century.
15
The "harvestable" amount of fish is determined by subtracting from the total number of fish in each run the number that must be allowed to escape for conservation purposes.
The "case area" was defined by the District Court as
"that portion of the State of Washington west of the Cascade Mountains and north of the Columbia River drainage area, and includes the American portion of the Puget Sound watershed, the watersheds of the Olympic Peninsula north of the Grays Harbor watershed, and the offshore waters adjacent to those areas." 384 F.Supp., at 328.
16
A factual dispute exists on the question of what percentage of the fish in the case area actually passes through Indian fishing areas and is therefore subject to the District Court's allocations. In the absence of any relevant findings by the courts below, we are unable to express any view on the matter.
17
Moreover, fish caught by individual Indians at off-reservation locations that are not "usual and accustomed" sites, were treated as if they had been caught by nontreaty fishermen. 384 F.Supp., at 410.
18
The Court of Appeals held that fish caught by nonresidents of Washington should be eliminated from the equitable adjustment for fish caught beyond the State's jurisdiction. 520 F.2d, at 689.
19
Despite our earlier denial of certiorari on the treaty interpretation issue, we decline the Government's invitation to treat the matter as having been finally adjudicated. Our earlier denial came at an interlocutory stage in the proceedings—the District Court has retained continuing enforcement jurisdiction over the case—so that we certainly are not required to treat the earlier disposition as final for our purposes. Reece v. Georgia, 350 U.S. 85, 87, 76 S.Ct. 167, 169, 100 L.Ed. 77. Moreover, the reason for our recent grant of certiorari on the question remains because the state courts are—and, at least since the State Supreme Court's decision in Department of Game v. Puyallup Tribe, 86 Wash.2d 664, 548 P.2d 1058 (1976), have been—on record as interpreting the treaties involved differently from the federal courts. Accordingly, there is strong reason not to treat it as final as a discretionary matter.
20
The Washington Supreme Court held that the treaties would violate equal protection principles if they provided fishing rights to Indians that were not also available to non-Indians. The simplest answer to this argument is that this Court has already held that these treaties confer enforceable special benefits on signatory Indian tribes, e. g., Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115; United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089, and has repeatedly held that the peculiar semisovereign and constitutionally recognized status of Indians justifies special treatment on their behalf when rationally related to the Government's "unique obligation toward the Indians." Morton v. Mancari, 417 U.S. 535, 555, 94 S.Ct. 2474, 2485, 41 L.Ed.2d 290. See United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701; Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129. See also Fishing Vessel Assn. v. Tollefson, 89 Wash.2d 276, 287-288, 571 P.2d 1373, 1379-1380 (1977) (Utter, J. dissenting).
21
The language is quoted from Art. III of the Treaty of Medicine Creek, 10 Stat. 1133. Identical, or almost identical, language is included in each of the other treaties.
22
The State characterizes its interpretation of the treaty language as assuring Indians and non-Indians an "equal opportunity" to take fish from the State's waters. This appellation is misleading. In the first place, even the State recognizes that the treaties provide Indians with certain rights i. e., the right to fish without a license and to cross private lands—that non-Indians do not have. See Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115; Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555; United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. See also Puyallup Tribe v. Washington Dept. of Game, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed. 667. Whatever opportunities the treaties assure Indians with respect to fish are admittedly not "equal" to, but are to some extent greater than, those afforded other citizens. It is therefore simply erroneous to suggest that the treaty language "confers upon non-Indians precisely the same right to fish that it confers upon Indians." Powell, J., dissenting, post, at 698.
Moreover, in light of the far superior numbers, capital resources, and technology of the non-Indians, the concept of the Indians' "equal opportunity " to take advantage of a scarce resource is likely in practice to mean that the Indians' "right of taking fish" will net them virtually no catch at all. For the "opportunity" is at best theoretical. Indeed, in 1974, before the
District Court's injunction took effect, and while the Indians were still operating under the "equal opportunity" doctrine, their take amounted to approximately 2% of the total harvest of salmon and trout in the treaty area. 459 F.Supp., at 1032.
23
The State argues that at common law a "common fishery" was merely a nonexclusive right of access, see 3 J. Kent, Commentaries 412 (5th ed. 1844), and that the right of a fishery was appurtenant to specific parcels of real property. The State does not suggest, however, that these concepts were understood by, or explained to, the Indians. Indeed, there is no evidence that Governor Stevens understood them, although one of his advisers, George Gibbs, was a lawyer.
But even if we indulge in the highly dubious assumption that Gibbs was learned in the intricacies of water law, that he incorporated them in the treaties, and that he explained them fully to the Indians, the treaty language would still be subject to the different interpretations presented by the parties to this litigation. For in addition to "common fisheries," the "in common with" language was used in two other relevant senses during the period. First, a "common of fishery" meant a limited right, acquired from the previously exclusive owner of certain fishing rights (in this case the Indians), "of taking fish in common with certain others in waters flowing through [the grantor's] land." J. Gould, Laws of Waters § 183 (3d ed. 1900) (emphasis added); see 3 Kent, supra, at 410. Under that understanding of the language, it would hardly make sense that the Indians effectively relinquished all of their fishing rights by granting a merely nonexclusive right.
Even more to the point, the United States had previously used the "in common with" language in two treaties with Britain, including one signed in 1854, that dealt with fishing rights in certain waters adjoining the United States and Canada. Treaty of Oct. 20, 1818, 8 Stat. 248; Treaty of June 5, 1854, 10 Stat. 1089. As interpreted by the Department of State during the 19th century, these treaties gave each signatory country an "equal" and apportionable "share" of the take of fish in the treaty areas. See H.R.Ex.Doc. No. 84, 46th Cong., 2d Sess., 7 (1880); 5 American State Papers (For.Rel.) 528-529 (1823); J. Q. Adams, The Duplicate Letters, The Fisheries and the Mississippi, 184-185 (1822).
24
Puyallup Tribe v. Washington Game Dept., 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (Puyallup I ); Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (Puyallup II ); and Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (Puyallup III ).
25
Mr. Justice Douglas wrote for the Court:
"The right to fish 'at all usual and accustomed' places may, of course, not be qualified by the State . . . . But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians." 391 U.S., at 398, 88 S.Ct., at 1728.
In describing the "appropriate standards" referred to, Mr. Justice Douglas continued:
"As to a 'regulation' concerning the time and manner of fishing . . ., the power of the State [is] measured by whether [the regulation is] 'necessary for the conservation of fish.' [Tulee,] 315 U.S., at 684, 62 S.Ct., at 864.
"The measure of the legal propriety of those kinds of conservation measures is therefore distinct from the federal constitutional standard concerning the scope of the police power of a State. See Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 . . . ." Id., at 402 n. 14, 88 S.Ct., at 1730 n. 14.
See also Antoine v. Washington, 420 U.S., at 207-208, 95 S.Ct., at 951-952; Tulee, 315 U.S., at 684, 62 S.Ct., at 864; Winans, 198 U.S., at 384, 25 S.Ct., at 665; Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244.
26
Although some members of the Washington Supreme Court in their opinions in Puyallup III expressed the view that the treaties could not be interpreted as affording treaty fishermen an allocable share of the fish, Department of Game v. Puyallup Tribe, 86 Wash.2d, at 674-681, 548 P.2d, at 1066-1070; see id., at 690-698, 548 P.2d, at 1075-1080 (Rosellini, J., concurring); but see id., at 688-690, 548 P.2d, at 1074-1075 (Stafford, C. J., concurring in result), they recognized that any other interpretation would be inconsistent with "the express language on the face of [this Court's decision in] Puyallup II . . . ."
27
Because the 50% figure is only a ceiling, it is not correct to characterize our holding "as guaranteeing the Indians a specified percentage" of the fish. See POWELL, J., dissenting, post, at 697.
The logic of the 50% ceiling is manifest. For an equal division—especially between parties who presumptively treated with each other as equals—is suggested, if not necessarily dictated, by the word "common" as it appears in the treaties. Since the days of Solomon, such a division has been accepted as a fair apportionment of a common asset, and Anglo-American common law has presumed that division when, as here, no other percentage is suggested by the language of the agreement or the surrounding circumstances. E. g., 2 American Law of Property § 6.5, p. 19 (A. Casner ed. 1952); E. Hopkins, Handbook on the Law of Real Property § 209, p. 336 (1896).
28
This Court's decision in Puyallup III, which approved state regulation of on-reservation fishing in the interest of conservation, was issued after the District Court excluded the Indians' on-reservation take and the Court of Appeals affirmed. See 520 F.2d, at 690.
29
A like reasoning requires the fish taken by treaty fishermen off the reservations and at locations other than "usual and accustomed" sites, see n. 17, supra, to be counted as part of the Indians' share. Of course, the District Court, in its discretion, may determine that so few fish fit into this, or any other, category (e. g., "take-home" fish caught by nontreaty commercial fishermen for personal use) that accounting for them individually is unnecessary, and that an estimated figure may be relied on in making the annual computation. Indeed, if the amount is truly de minimis, no accounting at all may be required.
30
The Government suggests that the District Court's exclusion of the "take-home" catch of nontreaty fishermen from the nontreaty share makes up for any losses to those fishermen occasioned by the exclusion of the Indians' ceremonial and subsistence take. We see nothing in the District Court's findings to verify this allegation, see 384 F.Supp., at 343, although the District Court may wish to address the issue in this light on remand.
Although there is some discussion in the briefs concerning whether the treaties give Indians the same right to take hatchery-bred fish as they do to take native fish, the District Court has not yet reached a final decision on this issue, see 459 F.Supp., at 1072-1085, and it is not therefore fairly subsumed within our grant of certiorari. See Puyallup III, 433 U.S., at 177 n. 17, 97 S.Ct., at 2623 n. 17.
31
Although the IPSFC has refused to accede to the suggestions of the United States that special regulations be promulgated to cover the Indian fisheries, we are informed by the Solicitor General that the Canadian Government has no objection to those suggestions, has unilaterally implemented similar rules on behalf of its own Indians, and has expressed no dissatisfaction with the unilateral actions taken by the United States in this regard. Brief for United States 40 n. 26.
Because the Department of the Interior regulations assure that no disproportion will occur, the equitable adjustment ordered by the District Court to cover the possibility that IPSFC regulations would result in a disproportionate nontreaty take will not be effectuated. We accordingly have no issue before us concerning the validity of that adjustment.
32
The associations advance a third objection as well—that the District Court had no power to enjoin individual nontreaty fishermen, who were not parties to its decisions, from violating the allocations that it has ordered. The reason this issue has arisen is that state officials were either unwilling or unable to enforce the District Court's orders against nontreaty fishermen by way of state regulations and state law enforcement efforts. Accordingly, nontreaty fishermen were openly violating Indian fishing rights, and, in order to give federal law enforcement officials the power via contempt to end those violations, the District Court was forced to enjoin them. 459 F.Supp., at 1043, 1098-1099, 1113-1117. The commercial fishing organizations, on behalf of their individual members, argue that they should not be bound by these orders because they were not parties to (although the associations all did participate as amici curiae in) the proceedings that led to their issuance.
If all state officials stand by the Attorney General's representations that the State will implement the decision of this Court, see nn. 34 and 35, infra, this issue will be rendered moot because the District Court no longer will be forced to enforce its own decisions. Nonetheless, the issue is still live since state implementation efforts are now at a standstill and the orders are still in effect. Accordingly, we must decide it.
In our view, the commercial fishing associations and their members are probably subject to injunction under either the rule that nonparties who interfere with the implementation of court orders establishing public rights may be enjoined, e. g., United States v. Hall, 472 F.2d 261 (CA5 1972), cited approvingly in Golden State Bottling Co. v. NLRB, 414 U.S. 168, 180, 94 S.Ct. 414, 423, 38 L.Ed.2d 388, or the rule that a court possessed of the res in a proceeding in rem, such as one to apportion a fishery, may enjoin those who would interfere with that custody. See Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 641, 97 S.Ct. 2881, 2892, 53 L.Ed.2d 1009. But in any case, these individuals and groups are citizens of the State of Washington, which was a party to the relevant proceedings, and "they, in their common public rights as citizens of the State, were represented by the State in those proceedings, and, like it, were bound by the judgment." Tacoma v. Taxpayers, 357 U.S. 320, 340-341, 78 S.Ct. 1209, 1221, 2 L.Ed.2d 1345. Moreover, a court clearly may order them to obey that judgment. See Golden State Bottling, supra, 414 U.S., at 179-180, 94 S.Ct., at 422-423.
33
The State has also argued that absent congressional legislation the treaties involved here are not enforceable. This argument flies directly in the face of Art. XIII of the treaties which states that they "shall be obligatory on the contracting parties as soon as [they are] ratified by the President and Senate of the United States." Moreover, the argument was implicitly rejected in Winans and our ensuing decisions regarding these treaties, all of which assumed that the treaties are self-enforcing. E. g., Puyallup I, 391 U.S., at 397-398, 88 S.Ct., at 1725, 1728.
Significantly, Congress thrice rejected efforts in the early 1960's to terminate the Indians' fishing rights under these treaties. See S.J.Res. 170 and 171, 88th Cong., 2d Sess. (1964); H.J.Res. 48, 88th Cong., 1st Sess. (1963); H.J.Res. 698, 87th Cong., 2d Sess. (1962).
34
In his brief, the Attorney General represented:
"If this Court now concludes that Indian treaty fishermen and all other fishermen are not members of the same class with respect to an allocation of fishery, it will thereby lay the foundation for the validity under state law of a separate classification of treaty Indian fishermen for the purpose of allocation. We would respectfully submit that if the Court rejects our earlier argument and finds that treaty Indian fishermen are a special class for allocation purposes, such a conclusion would remove the impediment found by the Washington Supreme Court to the exercise of necessary regulatory power by the Department of Fisheries to allocate between Indian and non-Indian fishermen.
* * * * *
"Fisheries will be able to comply with the Court's decision in this case even if it requires some type of allocation of the fishery." Brief for the State of Washington 99.
See also Department of Game v. Puyallup Tribe, 86 Wash.2d 664, 681, 684-688, 548 P.2d 1058, 1070, 1072-1074 (1976), in which the Washington Supreme Court held that the Department of Game had authority to allocate a certain portion of the steelhead trout run on the Puyallup River to treaty fishermen.
35
According to the Attorney General:
"The State of Washington and its Department of Fisheries cannot emphasize too strongly that they do not propose to inhibit the enforcement of proper federal court orders. . . .
* * * * *
"Whatever the decision of this Court, the state will implement it. The state believes that after a decision by this Court it will be in a position to comply with District Court orders, if the same are necessary to comply with this Court's decision. We do not believe the state courts could or would take a different point of view: We are confident that they will accede to this Court's interpretation of the treaties in the future just as they have in the past, as this Court expressly found in Puyallup III, [433 U.S.,] at 177 [97 S.Ct. 2616, 2623, 53 L.Ed.2d 667]." Brief for State of Washington, 95, 96.
We note the omission of the same firm representation on behalf of the Game Department. Although the history of that agency is not nearly as favorable as that of Fisheries with respect to attempting to comply with the District Court's order, e. g., 384 F.Supp., at 395, 398; 459 F.Supp., at 1043, 1045, 1099, we assume that this omission stems from the fact that only Fisheries was named as a party in the litigation in the state courts regarding the state agencies' authority to comply with the District Court's order. See 88 Wash.2d, at 679, 565 P.2d, at 1152. See also Department of Game v. Puyallup Tribe, discussed in n. 34, supra.
36
"The state's extraordinary machinations in resisting the [1974] decree have forced the district court to take over a large share of the management of the state's fishery in order to enforce its decrees. Except for some desegregation cases . . ., the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century. The challenged orders in this appeal must be reviewed by this court in the context of events forced by litigants who offered the court no reasonable choice." 573 F.2d 1123, 1126 (CA9 1978).
1
Treaty of Medicine Creek, 10 Stat. 1132; Treaty of Point Elliott, 12 Stat. 927; Treaty of Point No Point, 12 Stat. 933; Treaty with the Makahs, 12 Stat. 939; Treaty with the Yakamas, 12 Stat. 951; Treaty of Olympia, 12 Stat. 971.
2
Treaty of Medicine Creek, 10 Stat. 1133 (emphasis supplied). There were some slight, immaterial variations in the language used. See, e. g., Treaty with the Yakamas, quoted infra, at 698.
3
Indeed, if the Court's interpretation of the treaties were correct, then the exclusive right with respect to reservation fishing would be largely superfluous. If the Indians had the right to 50%, and no more, of the fish irrespective of where they are caught, then it hardly would be of any great value to them that they could keep others from taking fish from locations on the reservation. The most reasonable way to interpret the exclusive right of reservation fishing so that it was of value, therefore, is as a special right of access.
4
The Government's brief in Winans, cited approvingly by the Court in that case, indicates that the Government also understood the treaty to guarantee nothing more than access rights to traditional fishing locations. In that brief, the Government advocated only "a way of easy access, free ingress and egress to and from the fishing grounds." Brief for Appellants, O.T. 1904, No. 180, p. 56.
This interpretation of Winans was unequivocally affirmed by the Court a short time later in Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555 (1919). At issue in that case was whether Indians from the Yakima Nation had the right under their treaty to cross the Columbia River and fish from the south bank, which admittedly had belonged to other tribes at the time of the treaty. The Court viewed Seufert, a case unquestionably involving only the right of access, to be squarely controlled by its earlier decision in Winans. 249 U.S., at 198, 39 S.Ct., at 205. Moreover, the Court reaffirmed its view that the effect of the reservation of common fishing rights to the Indians amounted to a servitude. Id., at 199, 39 S.Ct., at 205.
5
The treaty right was repeatedly referred to in Puyallup I as a "right to fish." This phrase was used no less than seven times in the course of the opinion, with no distinction being made between the right "to fish" and the right "of taking fish." 391 U.S., at 397-399, 88 S.Ct., at 1728-1729.
6
Having decided that some regulation was required, but that the treaty forbade the State to choose to regulate only Indian fishing for conservation purposes, we remanded for an apportionment between net fishing and sport fishing. Puyallup Tribe v. Washington Game Dept., 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977) (Puyallup III ), is of little assistance in deciding the issue in the present cases. The Court in that case decided only that the regulations permitted in Puyallup I could be applied against Indian fishing on the reservations, as well as off them.
7
Because it is admitted that the Indians at all times have taken substantial numbers of fish at their traditional fishing places, I do not consider whether a monopolization of all of the fish by the non-Indians would violate the spirit of the Indians' treaty right of access. Of course, if state conservation regulations were to operate discriminatorily to deny fish to Indians, the Court's decision in Puyallup II would apply.
8
The Court apparently sees this windfall as being necessary for the Indians, for it concludes that "in light of the far superior numbers, capital resources, and technology of the non-Indians, the concept of the Indians' 'equal opportunity ' to take advantage of a scarce resource is likely in practice to mean that the Indians' 'right of taking fish' will net them virtually no catch at all." Ante, at 677 n. 22. But if the situation of the Indians in the Pacific Northwest requires that special provisions be made for their livelihood, this Court should not enact these provisions by reforming a bargain struck more than 100 years ago. Nor should the cost of compensating for any disadvantage the Indians may suffer, or have suffered, be borne solely by the commercial fishermen of the State of Washington—a fraction of the people who have benefited from the population imbalance. This is a problem for resolution by Congress. It has the basic responsibility for making sure that Indians are not discriminated against, and that their rights are fully protected. In the exercise of this responsibility, Congress could pursue various avenues for relief of any perceived discrimination or disadvantage. It could, for example, provide for Indian fishermen the modern technology and capital resources that they lack, thereby enabling them to compete on an equal basis with non-Indian fishermen. Moreover, a legislation of this problem can protect the interests of Indians without imposing substantially the entire cost upon non-Indian fishermen of the State of Washington.
9
In addition to the burdens placed upon non-Indian fishermen, the Court's decision is likely to prove difficult to enforce fairly and effectively. To date, the District Court has had to resort to the outer limits of its equitable powers in order to enforce its decree. This has included taking over supervision of all of the commercial fishing in the Puget Sound area, ordering the creation of a telephone "hot line" that fishermen can use to determine when and where they may legally fish, and ordering United States Marshals to board fishing craft and inspect for violations of the court's preliminary injunction. Indeed, in his response to the petition for certiorari in the present case, the Solicitor General set forth in some detail the extraordinary difficulty the Government has had in enforcing the District Court's decrees, saying:
"[T]he default of the state government has required the United States to concentrate a disproportionate amount of its limited fisheries enforcement personnel on what is essentially a local enforcement problem. Agents of the National Marine Fisheries Service, the United States Fish and Wildlife Service, the United States Marshals Service, and the Coast Guard have been diverted from their regular duties to assist the district court in implementing the Indians' treaty rights. This has resulted in a reduction in the federal fisheries services available for the rest of the country and for the enforcement of the ocean fisheries programs governed by the Fishery Conservation and Management Act of 1976." Brief for United States on Petition for Certiorari in Nos. 78-119 and 78-139, p. 20.
These problems, it seems to me, will be exacerbated by a formula apportionment such as that ordered by the Court.
| 12
|
443 U.S. 622
99 S.Ct. 3035
61 L.Ed.2d 797
Francis X. BELLOTTI, Attorney General of Massachusetts, et al., Appellants,v.William BAIRD et al. Jane HUNERWADEL, etc., Appellant, v. William BAIRD et al.
Nos. 78-329, 78-330.
Argued Feb. 27, 1979.
Decided July 2, 1979.
Rehearing Denied Oct. 1, 1979.
See 444 U.S. 887, 100 S.Ct. 185.
Syllabus
A Massachusetts statute requires parental consent before an abortion can be performed on an unmarried woman under the age of 18. If one or both parents refuse such consent, however, the abortion may be obtained by order of a judge of the superior court "for good cause shown." In appellees' class action challenging the constitutionality of the statute, a three-judge District Court held it unconstitutional. Subsequently, this Court vacated the District Court's judgment, Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844, holding that the District Court should have abstained and certified to the Massachusetts Supreme Judicial Court appropriate questions concerning the meaning of the statute. On remand, the District Court certified several questions to the Supreme Judicial Court. Among the questions certified was whether the statute permits any minors—mature or immature—to obtain judicial consent to an abortion without any parental consultation whatsoever. The Supreme Judicial Court answered that, in general, it does not; that consent must be obtained for every nonemergency abortion unless no parent is available; and that an available parent must be given notice of any judicial proceedings brought by a minor to obtain consent for an abortion. Another question certified was whether, if the superior court finds that the minor is capable of making, and has, in fact, made and adhered to, an informed and reasonable decision to have an abortion, the court may refuse its consent on a finding that a parent's, or its own, contrary decision is a better one. The Supreme Judicial Court answered in the affirmative. Following the Supreme Judicial Court's judgment, the District Court again declared the statute unconstitutional and enjoined its enforcement.
Held: The judgment is affirmed. Pp. 633-651; 652-656.
D.C., 450 F.Supp. 997, affirmed.
Mr. Justice POWELL, joined by Mr. Chief Justice BURGER, Mr. Justice STEWART, and Mr. Justice REHNQUIST, concluded that:
1
1. There are three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the guiding role of parents in the upbringing of their children. Pp. 633-639.
2
2. The abortion decision differs in important ways from other decisions facing minors, and the State is required to act with particular sensitivity when it legislates to foster parental involvement in this matter. Pp. 639-642.
3
3. If a State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained. A pregnant minor is entitled in such a proceeding to show either that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes, or that even if she is not able to make this decision independently, the desired abortion would be in her best interests. Such a procedure must ensure that the provision requiring parental consent does not in fact amount to an impermissible "absolute, and possibly arbitrary, veto." Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788. Pp. 642-644.
4
4. The Massachusetts statute, as authoritatively interpreted by the Supreme Judicial Court, unduly burdens the right to seek an abortion. The statute falls short of constitutional standards in two respects. First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification of every instance, whether or not in the pregnant minor's best interests, without affording her an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests. Pp. 644-651.
5
Mr. Justice STEVENS, joined by Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN, concluded that the Massachusetts statute is unconstitutional because under the statute, as written and as construed by the Massachusetts Supreme Judicial Court, no minor, no matter how mature and capable of informed decisionmaking, may receive an abortion without the consent of either both parents or a superior court judge, thus making the minor's abortion decision subject in every instance to an absolute third-party veto. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788, controlling. Pp. 652-656.
6
Garrick F. Cole, Boston, Mass., for appellants in No. 78-329, by Brian A. Riley, Boston, Mass., for appellant in No. 78-330.
7
Joseph J. Balliro and John H. Henn, Boston, Mass., for appellees in both cases.
8
Mr. Justice POWELL announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice REHNQUIST joined.
9
These appeals present a challenge to the constitutionality of a state statute regulating the access of minors to abortions. They require us to continue the inquiry we began in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), and Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976).
10
* A.
11
On August 2, 1974, the Legislature of the Commonwealth of Massachusetts passed, over the Governor's veto, an Act pertaining to abortions performed within the State. 1974 Mass. Acts, ch. 706. According to its title, the statute was intended to regulate abortions "within present constitutional limits." Shortly before the Act was to go into effect, the class action from which these appeals arise was commenced in the District Court1 to enjoin, as unconstitutional, the provision of the Act now codified as Mass.Gen.Laws Ann., ch. 112, § 12S (West Supp.1979).2
Section 12S provides in part:
12
"If the mother is less than eighteen years of age and has not married, the consent of both the mother and her parents [to an abortion to be performed on the mother] is required. If one or both of the mother's parents refuse such consent, consent may be obtained by order of a judge of the superior court for good cause shown, after such hearing as he deems necessary. Such a hearing will not require the appointment of a guardian for the mother. If one of the parents has died or has deserted his or her family, consent by the remaining parent is sufficient. If both parents have died or have deserted their family, consent of the mother's guardian or other person having duties similar to a guardian, or any person who had assumed the care and custody of the mother is sufficient. The commissioner of public health shall prescribe a written form for such consent. Such form shall be signed by the proper person or persons and given to the physician performing the abortion who shall maintain it in his permanent files."
13
Physicians performing abortions in the absence of the consent required by § 12S are subject to injunctions and criminal penalties. See Mass.Gen.Laws Ann., ch. 112, §§ 12Q, 12T, and 12U (West Supp.1979).
14
A three-judge District Court was convened to hear the case pursuant to 28 U.S.C. § 2281 (1970 ed.), repealed by Pub.L. 94-381, § 1, 90 Stat. 1119.3 Plaintiffs in the suit, appellees in both the cases before us now, were William Baird; Parents Aid Society, Inc. (Parents Aid), of which Baird is founder and director; Gerald Zupnick, M. D., who regularly performs abortions at the Parents Aid clinic; and an unmarried minor, identified by the pseudonym "Mary Moe," who, at the commencement of the suit, was pregnant, residing at home with her parents, and desirous of obtaining an abortion without informing them.4
15
Mary Moe was permitted to represent the "class of unmarried minors in Massachusetts who have adequate capacity to give a valid and informed consent [to abortion], and who do not wish to involve their parents." Baird v. Bellotti, 393 F.Supp. 847, 850 (Mass.1975) (Baird). Initially there was some confusion whether the rights of minors who wish abortions without parental involvement but who lack "adequate capacity" to give such consent also could be adjudicated in the suit. The District Court ultimately determined that Dr. Zupnick was entitled to assert the rights of these minors. See Baird v. Bellotti, 450 F.Supp. 997, 1001, and n. 6 (Mass.1978).5
16
Planned Parenthood League of Massachusetts and Crittenton Hastings House & Clinic, both organizations that provide counseling to pregnant adolescents, and Phillip Stubblefield, M. D. (intervenors),6 appeared as amici curiae on behalf of the plaintiffs. The District Court "accepted [this group] in a status something more than amici because of reservations about the adequacy of plaintiffs' representation [of the plaintiff classes in the suit]." Id., at 999 n. 3.
17
Defendants in the suit, appellants here in No. 78-329, were the Attorney General of Massachusetts and the District Attorneys of all counties in the State. Jane Hunerwadel was permitted to intervene as a defendant and representative of the class of Massachusetts parents having unmarried minor daughters who then were, or might become, pregnant. She and the class she represents are appellants in No. 78-330.7
18
Following three days of testimony, the District Court issued an opinion invalidating § 12S. Baird I, supra. The court rejected appellees' argument that all minors capable of becoming pregnant also are capable of giving informed consent to an abortion, or that it always is in the best interests of a minor who desires an abortion to have one. See 393 F.Supp., at 854. But the court was convinced that "a substantial number of females under the age of 18 are capable of forming a valid consent," id., at 855, and "that a significant number of [these] are unwilling to tell their parents." Id., at 853.
19
In its analysis of the relevant constitutional principles, the court stated that "there can be no doubt but that a female's constitutional right to an abortion in the first trimester does not depend upon her calendar age." Id., at 855-856. The court found no justification for the parental consent limitation placed on that right by § 12S, since it concluded that the statute was "cast not in terms of protecting the minor, . . . but in recognizing independent rights of parents." Id., at 856. The "independent" parental rights protected by § 12S, as the court understood them, were wholly distinct from the best interests of the minor.8
B
20
Appellants sought review in this Court, and we noted probable jurisdiction. Bellotti v. Baird, 423 U.S. 982, 96 S.Ct. 390, 46 L.Ed.2d 301 (1975). After briefing and oral argument, it became apparent that § 12S was susceptible of a construction that "would avoid or substantially modify the federal constitutional challenge to the statute." Bellotti v. Baird, 428 U.S. 132, 148, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976) (Bellotti ). We therefore vacated the judgment of the District Court, concluding that it should have abstained and certified to the Supreme Judicial Court of Massachusetts appropriate questions concerning the meaning of § 12S, pursuant to existing procedure in that State. See Mass.Sup.Jud.Ct. Rule 3:21.
21
On remand, the District Court certified nine questions to the Supreme Judicial Court.9 These were answered in an opinion styled Baird v. Attorney General, 371 Mass. 741, 360 N.E.2d 288 (1977) (Attorney General ). Among the more important aspects of § 12S, as authoritatively construed by the Supreme Judicial Court, are the following:
22
1. In deciding whether to grant consent to their daughter's abortion, parents are required by § 12S to consider exclusively what will serve her best interests. See id., at 746-747, 360 N.E.2d, at 292-293.
23
2. The provision in § 12S that judicial consent for an abortion shall be granted, parental objections notwithstanding, "for good cause shown" means that such consent shall be granted if found to be in the minor's best interests. The judge "must disregard all parental objections, and other considerations, which are not based exclusively" on that standard. Id., at 748, 360 N.E.2d, at 293.
24
3. Even if the judge in a § 12S proceeding finds "that the minor is capable of making, and has made, an informed and reasonable decision to have an abortion," he is entitled to withhold consent "in circumstances where he determines that the best interests of the minor will not be served by an abortion." Ibid., 360 N.E.2d, at 293.
25
4. As a general rule, a minor who desires an abortion may not obtain judicial consent without first seeking both parents' consent. Exceptions to the rule exist when a parent is not available or when the need for the abortion constitutes " 'an emergency requiring immediate action.' "10 Id., at 750, 360 N.E.2d, at 294. Unless a parent is not available, he must be notified of any judicial proceedings brought under § 12S. Id., at 755-756, 360 N.E.2d, at 297.
26
5. The resolution of § 12S cases and any appeals that follow can be expected to be prompt. The name of the minor and her parents may be held in confidence. If need be, the Supreme Judicial Court and the superior courts can promulgate rules or issue orders to ensure that such proceedings are handled expeditiously. Id., at 756-758, 360 N.E.2d, at 297-298.
27
6. Massachusetts Gen.Laws Ann., ch. 112, § 12F (West Supp.1979), which provides, inter alia, that certain classes of minors may consent to most kinds of medical care without parental approval, does not apply to abortions, except as to minors who are married, widowed, or divorced. See 371 Mass., at 758-762, 360 N.E.2d, at 298-300. Nor does the State's common-law "mature minor rule" create an exception to § 12S. Id., at 749-750, 360 N.E.2d, at 294. See n. 27,infra.
C
28
Following the judgment of the Supreme Judicial Court, appellees returned to the District Court and obtained a stay of the enforcement of § 12S until its constitutionality could be determined. Baird v. Bellotti, 428 F.Supp. 854 (Mass.1977) (Baird II ). After permitting discovery by both sides, holding a pretrial conference, and conducting further hearings, the District Court again declared § 12S unconstitutional and enjoined its enforcement. Baird v. Bellotti, 450 F.Supp. 997 (Mass.1978) (Baird III ). The court identified three particular aspects of the statute which, in its view, rendered it unconstitutional.
29
First, as construed by the Supreme Judicial Court, § 12S requires parental notice in virtually every case where the parent is available. The court believed that the evidence warranted a finding "that many, perhaps a large majority of 17-year olds are capable of informed consent, as are a not insubstantial number of 16-year olds, and some even younger." Id., at 1001. In addition, the court concluded that it would not be in the best interests of some "immature" minors—those incapable of giving informed consent—even to inform their parents of their intended abortions. Although the court declined to decide whether the burden of requiring a minor to take her parents to court was, per se, an impermissible burden on her right to seek an abortion, it concluded that Massachusetts could not constitutionally insist that parental permission be sought or notice given "in those cases where a court, if given free rein, would find that it was to the minor's best interests that one or both of her parents not be informed . . . ." Id., at 1002.
30
Second, the District Court held that § 12S was defective in permitting a judge to veto the abortion decision of a minor found to be capable of giving informed consent. The court reasoned that upon a finding of maturity and informed consent, the State no longer was entitled to impose legal restrictions upon this decision. Id., at 1003. Given such a finding, the court could see "no reasonable basis" for distinguishing between a minor and an adult, and it therefore concluded that § 12S was not only "an undue burden in the due process sense, [but] a discriminatory denial of equal protection [as well]." Id., at 1004.
31
Finally, the court decided that § 12S suffered from what it termed "formal overbreadth," ibid., because the statute failed explicitly to inform parents that they must consider only the minor's best interests in deciding whether to grant consent. The court believed that, despite the Supreme Judicial Court's construction of § 12S, parents naturally would infer from the statute that they were entitled to withhold consent for other, impermissible reasons. This was thought to create a "chilling effect" by enhancing the possibility that parental consent would be denied wrongfully and that the minor would have to proceed in court.
32
Having identified these flaws in § 12S, the District Court considered whether it should engage in "judicial repair." Id., at 1005. It declined either to sever the statute or to give it a construction different from that set out by the Supreme Judicial Court, as that tribunal arguably had invited it to do. See Attorney General, 371 Mass., at 745-746, 360 N.E.2d, at 292. The District Court therefore adhered to its previous position, declaring § 12S unconstitutional and permanently enjoining its enforcement.11 Appellants sought review in this Court a second time, and we again noted probable jurisdiction. 439 U.S. 925, 99 S.Ct. 307, 58 L.Ed.2d 317 (1978).
II
33
A child, merely on account of his minority, is not beyond the protection of the Constitution. As the Court said in In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967), "whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."12 This observation, of course, is but the beginning of the analysis. The Court long has recognized that the status of minors under the law is unique in many respects. As Mr. Justice Frankfurter aptly put it: "[C]hildren have a very special place in life which law should reflect. Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to determination of a State's duty towards children." May v. Anderson, 345 U.S. 528, 536, 73 S.Ct. 840, 844, 97 L.Ed. 1221 (1953) (concurring opinion). The unique role in our society of the family, the institution by which "we inculcate and pass down many of our most cherished values, moral and cultural," Moore v. East Cleveland, 431 U.S. 494, 503-504, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977) (plurality opinion), requires that constitutional principles be applied with sensitivity and flexibility to the special needs of parents and children. We have recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.
34
The Court's concern for the vulnerability of children is demonstrated in its decisions dealing with minors' claims to constitutional protection against deprivations of liberty or property interests by the State. With respect to many of these claims, we have concluded that the child's right is virtually coextensive with that of an adult. For example, the Court has held that the Fourteenth Amendment's guarantee against the deprivation of liberty without due process of law is applicable to children in juvenile delinquency proceedings. In re Gault, supra. In particular, minors involved in such proceedings are entitled to adequate notice, the assistance of counsel, and the opportunity to confront their accusers. They can be found guilty only upon proof beyond a reasonable doubt, and they may assert the privilege against compulsory self-incrimination. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, supra. See also Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977) (corporal punishment of school-children implicates constitutionally protected liberty interest); cf. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (Double Jeopardy Clause prohibits prosecuting juvenile as an adult after an adjudicatory finding in juvenile court that he had violated a criminal statute). Similarly, in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the Court held that children may not be deprived of certain property interests without due process.
35
These rulings have not been made on the uncritical assumption that the constitutional rights of children are indistinguishable from those of adults. Indeed, our acceptance of juvenile courts distinct from the adult criminal justice system assumes that juvenile offenders constitutionally may be treated differently from adults. In order to preserve this separate avenue for dealing with minors, the Court has said that hearings in juvenile delinquency cases need not necessarily " 'conform with all of the requirements of a criminal trial or even of the usual administrative hearing.' " In re Gault, supra, 387 U.S., at 30, 87 S.Ct., at 1445, quoting Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966). Thus, juveniles are not constitutionally entitled to trial by jury in delinquency adjudications. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Viewed together, our cases show that although children generally are protected by the same constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust its legal system to account for children's vulnerability and their needs for "concern, . . . sympathy, and . . . paternal attention." Id., at 550, 91 S.Ct., at 1989 (plurality opinion).
B
36
Second, the Court has held that the States validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences. These rulings have been grounded in the recognition that, during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.13
37
Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), illustrates well the Court's concern over the inability of children to make mature choices, as the First Amendment rights involved are clear examples of constitutionally protected freedoms of choice. At issue was a criminal conviction for selling sexually oriented magazines to a minor under the age of 17 in violation of a New York state law. It was conceded that the conviction could not have stood under the First Amendment if based upon a sale of the same material to an adult. Id., at 634, 88 S.Ct. 1277. Notwithstanding the importance the Court always has attached to First Amendment rights, it concluded that "even where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults . . .,' " id., at 638, 88 S.Ct., at 1280, quoting Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 (1944).14 The Court was convinced that the New York Legislature rationally could conclude that the sale to children of the magazines in question presented a danger against which they should be guarded. Ginsberg, supra, at 641, 88 S.Ct., at 1281. It therefore rejected the argument that the New York law violated the constitutional rights of minors.15
C
38
Third, the guiding role of parents in the upbringing of their children justifies limitations on the freedoms of minors. The State commonly protects its youth from adverse governmental action and from their own immaturity by requiring parental consent to or involvement in important decisions by minors.16 But an additional and more important justification for state deference to parental control over children is that "[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). "The duty to prepare the child for 'additional obligations' . . . must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship." Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972). This affirmative process of teaching, guiding, and inspiring by precept and example is essential to the growth of young people into mature, socially responsible citizens.
39
We have believed in this country that this process, in large part, is beyond the competence of impersonal political institutions. Indeed, affirmative sponsorship of particular ethical, religious, or political beliefs is something we expect the State not to attempt in a society constitutionally committed to the ideal of individual liberty and freedom of choice. Thus, "[i]t 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, supra, 321 U.S., at 166, 64 S.Ct., at 442 (emphasis added).
40
Unquestionably, there are many competing theories about the most effective way for parents to fulfill their central role in assisting their children on the way to responsible adulthood. While we do not pretend any special wisdom on this subject, we cannot ignore that central to many of these theories, and deeply rooted in our Nation's history and tradition, is the belief that the parental role implies a substantial measure of authority over one's children. Indeed, "constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society." Ginsberg v. New York, supra, 390 U.S., at 639, 88 S.Ct., at 1280.
41
Properly understood, then, the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter. Legal restrictions on minors, especially those supportive of the parental role, may be important to the child's chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding.17 Under the Constitution, the State can "properly conclude that parents and others, teachers for example, who have [the] primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility." Ginsberg v. New York, 390 U.S., at 639, 88 S.Ct., at 1280.18
III
42
With these principles in mind, we consider the specific constitutional questions presented by these appeals. In § 12S, Massachusetts has attempted to reconcile the constitutional right of a woman, in consultation with her physician, to choose to terminate her pregnancy as established by Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), with the special interest of the State in encouraging an unmarried pregnant minor to seek the advice of her parents in making the important decision whether or not to bear a child. As noted above, § 12S was before us in Bellotti I, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976), where we remanded the case for interpretation of its provisions by the Supreme Judicial Court of Massachusetts. We previously had held in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), that a State could not lawfully authorize an absolute parental veto over the decision of a minor to terminate her pregnancy. Id., at 74, 96 S.Ct., at 2843. In Bellotti, supra, we recognized that § 12S could be read as "fundamentally different from a statute that creates a 'parental veto,' " 428 U.S., at 145, 96 S.Ct., at 2865, thus "avoid[ing] or substantially modify[ing] the federal constitutional challenge to the statute." Id., at 148, 96 S.Ct., at 2866. The question before us—in light of what we have said in the prior cases—is whether § 12S, as authoritatively interpreted by the Supreme Judicial Court, provides for parental notice and consent in a manner that does not unduly burden the right to seek an abortion. See id., at 147, 96 S.Ct., at 2866.
43
Appellees and intervenors contend that even as interpreted by the Supreme Judicial Court of Massachusetts, § 12S does unduly burden this right. They suggest, for example, that the mere requirement of parental notice constitutes such a burden. As stated in Part II above, however, parental notice and consent are qualifications that typically may be imposed by the State on a minor's right to make important decisions. As immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor.19 It may further determine, as a general proposition, that such consultation is particularly desirable with respect to the abortion decision—one that for some people raises profound moral and religious concerns.20 As Mr. Justice STEWART wrote in concurrence in Planned Parenthood of Central Missouri v. Danforth, supra, at 91, 96 S.Ct., at 2851:
44
"There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support. It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place." (Footnote omitted.)21
45
But we are concerned here with a constitutional right to seek an abortion. The abortion decision differs in important ways from other decisions that may be made during minority. The need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, require a State to act with particular sensitivity when it legislates to foster parental involvement in this matter.
A.
46
The pregnant minor's options are much different from those facing a minor in other situations, such as deciding whether to marry. A minor not permitted to marry before the age of majority is required simply to postpone her decision. She and her intended spouse may preserve the opportunity for later marriage should they continue to desire it. A pregnant adolescent, however, cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy.
47
Moreover, the potentially severe detriment facing a pregnant woman, see Roe v. Wade, 410 U.S., at 153, 93 S.Ct., at 726, is not mitigated by her minority. Indeed, considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor. In addition, the fact of having a child brings with it adult legal responsibility, for parenthood, like attainment of the age of majority, is one of the traditional criteria for the termination of the legal disabilities of minority. In sum, there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.
48
Yet, an abortion may not be the best choice for the minor. The circumstances in which this issue arises will vary widely. In a given case, alternatives to abortion, such as marriage to the father of the child, arranging for its adoption, or assuming the responsibilities of motherhood with the assured support of family, may be feasible and relevant to the minor's best interests. Nonetheless, the abortion decision is one that simply cannot be postponed, or it will be made by default with far-reaching consequences.
49
For these reasons, as we held in Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 74, 96 S.Ct., at 2843, "the State may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy." Although, as stated in Part II, supra, such deference to parents may be permissible with respect to other choices facing a minor, the unique nature and consequences of the abortion decision make it inappropriate "to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent." 428 U.S., at 74, 96 S.Ct., at 2843. We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure22 whereby authorization for the abortion can be obtained.
50
A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes;23 or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained. In sum, the procedure must ensure that the provision requiring parental consent does not in fact amount to the "absolute, and possibly arbitrary, veto" that was found impermissible in Danforth. Ibid.
B
51
It is against these requirements that § 12S must be tested. We observe initially that as authoritatively construed by the highest court of the State, the statute satisfies some of the concerns that require special treatment of a minor's abortion decision. It provides that if parental consent is refused, authorization may be "obtained by order of a judge of the superior court for good cause shown, after such hearing as he deems necessary." A superior court judge presiding over a § 12S proceeding "must disregard all parental objections, and other considerations, which are not based exclusively on what would serve the minor's best interests."24 Attorney General, 371 Mass., at 748, 360 N.E.2d, at 293. The Supreme Judicial Court also stated: "Prompt resolution of a [§ 12S] proceeding may be expected. . . . The proceeding need not be brought in the minor's name and steps may be taken, by impoundment or otherwise, to preserve confidentiality as to the minor and her parents. . . . [W]e believe that an early hearing and decision on appeal from a judgment of a Superior Court judge may also be achieved." Id., at 757-758, 360 N.E.2d, at 298. The court added that if these expectations were not met, either the superior court, in the exercise of its rulemaking power, or the Supreme Judicial Court would be willing to eliminate any undue burdens by rule or order. Ibid.25
52
Despite these safeguards, which avoid much of what was objectionable in the statute successfully challenged in Danforth, § 12S falls short of constitutional standards in certain respects. We now consider these.
(1)
53
Among the questions certified to the Supreme Judicial Court was whether § 12S permits any minors—mature or immature—to obtain judicial consent to an abortion without any parental consultation whatsoever. See n. 9, supra. The state court answered that, in general, it does not. "[T]he consent required by [§ 12S must] be obtained for every nonemergency abortion where the mother is less than eighteen years of age and unmarried." Attorney General, supra, at 750, 360 N.E.2d, at 294. The text of § 12S itself states an exception to this rule, making consent unnecessary from any parent who has "died or has deserted his or her family."26 The Supreme Judicial Court construed the statute as containing an additional exception: Consent need not be obtained "where no parent (or statutory substitute) is available." Ibid. The court also ruled that an available parent must be given notice of any judicial proceedings brought by a minor to obtain consent for an abortion.27 Id., at 755-756, 360 N.E.2d, at 297.
54
We think that, construed in this manner, § 12S would impose an undue burden upon the exercise by minors of the right to seek an abortion. As the District Court recognized, "there are parents who would obstruct, and perhaps altogether prevent, the minor's right to go to court." Baird III, 450 F.Supp., at 1001. There is no reason to believe that this would be so in the majority of cases where consent is withheld. But many parents hold strong views on the subject of abortion, and young pregnant minors, especially those living at home, are particularly vulnerable to their parents' efforts to obstruct both an abortion and their access to court. It would be unrealistic, therefore, to assume that the mere existence of a legal right to seek relief in superior court provides an effective avenue of relief for some of those who need it the most.
55
We conclude, therefore, that under state regulation such as that undertaken by Massachusetts, every minor must have the opportunity—if she so desires—to go directly to a court without first consulting or notifying her parents. If she satisfies the court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent. If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nevertheless would be in her best interests. If the court is persuaded that it is, the court must authorize the abortion. If, however, the court is not persuaded by the minor that she is mature or that the abortion would be in her best interests, it may decline to sanction the operation.
56
There is, however, an important state interest in encouraging a family rather than a judicial resolution of a minor's abortion decision. Also, as we have observed above, parents naturally take an interest in the welfare of their children—an interest that is particularly strong where a normal family relationship exists and where the child is living with one or both parents. These factors properly may be taken into account by a court called upon to determine whether an abortion in fact is in a minor's best interests. If, all things considered, the court determines that an abortion is in the minor's best interests, she is entitled to court authorization without any parental involvement. On the other hand, the court may deny the abortion request of an immature minor in the absence of parental consultation if it concludes that her best interests would be served thereby, or the court may in such a case defer decision until there is parental consultation in which the court may participate. But this is the full extent to which parental involvement may be required.28 For the reasons stated above, the constitutional right to seek an abortion may not be unduly burdened by state-imposed conditions upon initial access to court.
57
(2)
58
Section 12S requires that both parents consent to a minor's abortion. The District Court found it to be "custom" to perform other medical and surgical procedures on minors with the consent of only one parent, and it concluded that "nothing about abortions . . . requires the minor's interest to be treated differently." Baird I, 393 F.Supp., at 852. See Baird III, supra, at 1004 n. 9.
59
We are not persuaded that, as a general rule, the requirement of obtaining both parents' consent unconstitutionally burdens a minor's right to seek an abortion. The abortion decision has implications far broader than those associated with most other kinds of medical treatment. At least when the parents are together and the pregnant minor is living at home, both the father and mother have an interest—one normally supportive—in helping to determine the course that is in the best interests of a daughter. Consent and involvement by parents in important decisions by minors long have been recognized as protective of their immaturity. In the case of the abortion decision, for reasons we have stated, the focus of the parents' inquiry should be the best interests of their daughter. As every pregnant minor is entitled in the first instance to go directly to the court for a judicial determination without prior parental notice, consultation, or consent, the general rule with respect to parental consent does not unduly burden the constitutional right. Moreover, where the pregnant minor goes to her parents and consent is denied, she still must have recourse to a prompt judicial determination of her maturity or best interests.29
60
(3)
61
Another of the questions certified by the District Court to the Supreme Judicial Court was the following: "If the superior court finds that the minor is capable [of making], and has, in fact, made and adhered to, an informed and reasonable decision to have an abortion, may the court refuse its consent based on a finding that a parent's, or its own, contrary decision is a better one?" Attorney General, 371 Mass., at 747 n. 5, 360 N.E.2d, at 293 n. 5. To this the state court answered:
62
"[W]e do not view the judge's role as limited to a determination that the minor is capable of making, and has made, an informed and reasonable decision to have an abortion. Certainly the judge must make a determination of those circumstances, but, if the statutory role of the judge to determine the best interests of the minor is to be carried out, he must make a finding on the basis of all relevant views presented to him. We suspect that the judge will give great weight to the minor's determination, if informed and reasonable, but in circumstances where he determines that the best interests of the minor will not be served by an abortion, the judge's determination should prevail, assuming that his conclusion is supported by the evidence and adequate findings of fact." Id., at 748, 360 N.E.2d, at 293.
63
The Supreme Judicial Court's statement reflects the general rule that a State may require a minor to wait until the age of majority before being permitted to exercise legal rights independently. See n. 23, supra. But we are concerned here with the exercise of a constitutional right of unique character. See supra, at 642-643. As stated above, if the minor satisfies a court that she has attained sufficient maturity to make a fully informed decision, she then is entitled to make her abortion decision independently. We therefore agree with the District Court that § 12S cannot constitutionally permit judicial disregard of the abortion decision of a minor who has been determined to be mature and fully competent to assess the implications of the choice she has made.30
IV
64
Although it satisfies constitutional standards in large part, § 12S falls short of them in two respects: First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests.31 Accordingly, we affirm the judgment of the District Court insofar as it invalidates this statute and enjoins its enforcement.32
65
Affirmed.
66
Mr. Justice REHNQUIST, concurring.
67
I join the opinion of Mr. Justice POWELL and the judgment of the Court. At such time as this Court is willing to reconsider its earlier decision inPlanned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), in which I joined the opinion of Mr. Justice WHITE, dissenting in part, I shall be more than willing to participate in that task. But unless and until that time comes, literally thousands of judges cannot be left with nothing more than the guidance offered by a truly fragmented holding of this Court.
68
Mr. Justice STEVENS, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN join, concurring in the judgment.
69
In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the Court held that a woman's right to decide whether to terminate a pregnancy is entitled to constitutional protection. In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 72-75, 96 S.Ct. 2831, 2842-2843, 49 L.Ed.2d 788, the Court held that a pregnant minor's right to make the abortion decision may not be conditioned on the consent of one parent. I am persuaded that these decisions require affirmance of the District Court's holding that the Massachusetts statute is unconstitutional.
70
The Massachusetts statute is, on its face, simple and straightforward. It provides that every woman under 18 who has not married must secure the consent of both her parents before receiving an abortion. "If one or both of the mother's parents refuse such consent, consent may be obtained by order of a judge of the Superior Court for good cause shown." Mass.Gen.Laws Ann., ch. 112, § 12S (West Supp.1979).
71
Whatever confusion or uncertainty might have existed as to how this statute was to operate, see Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844, has been eliminated by the authoritative construction of its provisions by the Massachusetts Supreme Judicial Court. See Baird v. Attorney General, 371 Mass. 741, 360 N.E.2d 288 (1977). The statute was construed to require that every minor who wishes an abortion must first seek the consent of both parents, unless a parent is not available or unless the need for the abortion constitutes " 'an emergency requiring immediate action.' " Id., at 750, 360 N.E.2d, at 294. Both parents, so long as they are available, must also receive notice of judicial proceedings brought under the statute by the minor. In those proceedings, the task of the judge is to determine whether the best interests of the minor will be served by an abortion. The decision is his to make, even if he finds "that the minor is capable of making, and has made, an informed and reasonable decision to have an abortion." Id., at 748, 360 N.E.2d, at 293. Thus, no minor in Massachusetts, no matter how mature and capable of informed decisionmaking, may receive an abortion without the consent of either both her parents or a superior court judge. In every instance, the minor's decision to secure an abortion is subject to an absolute third-party veto.1
72
In Planned Parenthood of Central Missouri v. Danforth, supra, this Court invalidated statutory provisions requiring the consent of the husband of a married woman and of one parent of a pregnant minor to an abortion. As to the spousal consent, the Court concluded that "we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the State itself lacks that right." 428 U.S., at 70, 96 S.Ct. at 2841. And as to the parental consent, the Court held that "[j]ust as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent." Id., at 74, 96 S.Ct., at 2843. These holdings, I think, equally apply to the Massachusetts statute. The differences between the two statutes are few. Unlike the Missouri statute, Massachusetts requires the consent of both of the woman's parents. It does, of course, provide an alternative in the form of a suit initiated by the woman in superior court. But in that proceeding, the judge is afforded an absolute veto over the minor's decisions, based on his judgment of her best interests. In Massachusetts, then, as in Missouri, the State has imposed an "absolute limitation on the minor's right to obtain an abortion," id., at 90, 96 S.Ct., at 2851 (STEWART, J., concurring), applicable to every pregnant minor in the State who has not married.
73
The provision of an absolute veto to a judge—or, potentially, to an appointed administrator2—is to me particularly troubling. The constitutional right to make the abortion decision affords protection to both of the privacy interests recognized in this Court's cases: "One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (footnotes omitted). It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties. In Massachusetts, however, every minor who cannot secure the consent of both her parents which under Danforth cannot be an absolute prerequisite to an abortion—is required to secure the consent of the sovereign. As a practical matter, I would suppose that the need to commence judicial proceedings in order to obtain a legal abortion would impose a burden at least as great as, and probably greater than, that imposed on the minor child by the need to obtain the consent of a parent.3 Moreover, once this burden is met, the only standard provided for the judge's decision is the best interest of the minor. That standard provides little real guidance to the judge, and his decision must necessarily reflect personal and societal values and mores whose enforcement upon the minor particularly when contrary to her own informed and reasonable decision—is fundamentally at odds with privacy interests underlying the constitutional protection afforded to her decision.
74
In short, it seems to me that this litigation is governed by Danforth ; to the extent this statute differs from that in Danforth, it is potentially even more restrictive of the constitutional right to decide whether or not to terminate a pregnancy. Because the statute has been once authoritatively construed by the Massachusetts Supreme Judicial Court, and because it is clear that the statute as written and construed is not constitutional, I agree with Mr. Justice POWELL that the District Court's judgment should be affirmed. Because his opinion goes further, however, and addresses the constitutionality of an abortion statute that Massachusetts has not enacted, I decline to join his opinion.4
75
Mr. Justice WHITE, dissenting.
76
I was in dissent in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 94-95, 96 S.Ct. 2831, 2853, 49 L.Ed.2d 788 (1976), on the issue of the validity of requiring the consent of a parent when an unmarried woman under 18 years of age seeks an abortion. I continue to have the views I expressed there and also agree with much of what Mr. Justice STEVENS said in dissent in that case. Id., at 101-105, 96 S.Ct. at 2855-2857. I would not, therefore, strike down this Massachusetts law.
77
But even if a parental consent requirement of the kind involved in Danforth must be deemed invalid, that does not condemn the Massachusetts law, which, when the parents object, authorizes a judge to permit an abortion if he concludes that an abortion is in the best interests of the child. Going beyond Danforth, the Court now holds it unconstitutional for a State to require that in all cases parents receive notice that their daughter seeks an abortion and, if they object to the abortion, an opportunity to participate in a hearing that will determine whether it is in the "best interests" of the child to undergo the surgery. Until now, I would have thought inconceivable a holding that the United States Constitution forbids even notice to parents when their minor child who seeks surgery objects to such notice and is able to convince a judge that the parents should be denied participation in the decision.
78
With all due respect, I dissent.
1
The court promptly issued a restraining order which remained in effect until its decision on the merits. Subsequent stays of enforcement were issued during the complex course of this litigation, with the result that Mass.Gen.Laws Ann., ch. 112, § 12S (West Supp.1979), never has been enforced by Massachusetts.
2
As originally enacted, § 12S was designated as § 12P of chapter 112. In 1977, the provision was renumbered as § 12S, and the numbering of subdivisions within the section was eliminated. No changes of substance were made. We shall refer to the section as § 12S throughout this opinion.
3
The proceedings before the court and the substance of its opinion are described in detail in Bellotti v. Baird, 428 U.S. 132, 136-143, 96 S.Ct. 2857, 2861-2864, 49 L.Ed.2d 844 (1976).
4
Three other minors in similar circumstances were named in the complaint, but the complaint was dismissed as to them for want of proof of standing. That decision has not been challenged on appeal.
5
Appellants argue that these "immature" minors never were before the District Court and that the court's remedy should have been tailored to grant relief only to the class of "mature" minors. It is apparent from the District Court's opinions, however, that it considered the constitutionality of § 12S as applied to all pregnant minors who might be affected by it. We accept that the rights of this entire category of minors properly were subject to adjudication.
6
In 1978, the District Court permitted postjudgment intervention by these parties, who now appear jointly before this Court as intervenor-appellees.
7
As their positions are closely aligned, if not identical, appellants in Nos. 78-329 and 78-330 are hereinafter referred to collectively as appellants.
8
One member of the three-judge court dissented, arguing that the decision of the majority to allow Mary Moe to proceed in the case without notice to her parents denied them their parental rights without due process of law, and that § 12S was consistent with the decisions of this Court recognizing the propriety of parental control over the conduct of children. See 393 F.Supp., at 857-865.
9
The nine questions certified by the District Court, with footnotes omitted, are as follows:
"1. What standards, if any, does the statute establish for a parent to apply when considering whether or not to grant consent?
"a) Is the parent to consider 'exclusively . . . what will serve the child's best interest'?
"b) If the parent is not limited to considering exclusively the minor's best interests, can the parent take into consideration the 'long-term consequences to the family and her parents' marriage relationship'?
"c) Other?
"2. What standard or standards is the superior court to apply?
"a) Is the superior court to disregard all parental objections that are not based exclusively on what would serve the minor's best interests?
"b) If the superior court finds that the minor is capable, and has, in fact, made and adhered to, an informed and reasonable decision to have an abortion, may the court refuse its consent based on a finding that a parent's, or its own, contrary decision is a better one?
"c) Other?
"3. Does the Massachusetts law permit a minor (a) 'capable of giving informed consent,' or (b) 'incapable of giving informed consent,' 'to obtain [a court] order without parental consultation'?
"4. If the court answers any of question 3 in the affirmative, may the superior court, for good cause shown, enter an order authorizing an abortion, (a), without prior notification to the parents, and (b), without subsequent notification?
"5. Will the Supreme Judicial Court prescribe a set of procedures to implement c. 112, [§ 12S] which will expedite the application, hearing, and decision phases of the superior court proceeding provided thereunder? Appeal?
"6. To what degree do the standards and procedures set forth in c. 112, § 12F (Stat.1975, c. 564), authorizing minors to give consent to medical and dental care in specified circumstances, parallel the grounds and procedures for showing good cause under c. 112, [§ 12S]?
"7. May a minor, upon a showing of indigency, have court-appointed counsel?
"8. Is it a defense to his criminal prosecution if a physician performs an abortion solely with the minor's own, valid, consent, that he reasonably, and in good faith, though erroneously, believed that she was eighteen or more years old or had been married?
"9. Will the Court make any other comments about the statute which, in its opinion, might assist us in determining whether it infringes the United States Constitution?"
10
Section 12S itself dispenses with the need for the consent of any parent who "has died or has deserted his or her family."
11
The dissenting judge agreed that the State could not permit a judge to override the decision of a minor found to be mature and capable of giving informed consent to an abortion. He disagreed with the remainder of the court's conclusions: the best-interests limitation on the withholding of parental consent in the Supreme Judicial Court's opinion, he argued, must be treated as if part of the statutory language itself; and he read the evidentiary record as proving that only rarely would a pregnant minor's interests be disserved by consulting with her parents about a desired abortion. He also noted the value to a judge in a § 12S proceeding of having the parents before him as a source of evidence as to the minor's maturity and what course would serve her best interests. See Baird III, 450 F.Supp., at 1006-1020.
12
Similarly, the Court said in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788 (1976):
"Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights."
13
As Mr. Justice STEWART wrote of the exercise by minors of the First Amendment rights that "secur[e] . . . the liberty of each man to decide for himself what he will read and to what he will listen," Ginsberg v. New York, 390 U.S. 629, 649, 88 S.Ct. 1274, 1285, 20 L.Ed.2d 195 (1968) (concurring in result):
"[A]t least in some precisely delineated areas, a child—like someone in a captive audience—is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees. It is only upon such a premise, I should suppose, that a State may deprive children of other rights the right to marry, for example, or the right to vote—deprivations that would be constitutionally intolerable for adults." Id., at 649-650, 88 S.Ct., at 1286 (footnotes omitted).
14
In Prince an adult had permitted a child in her custody to sell religious literature on a public street in violation of a state child-labor statute. The child had been permitted to engage in this activity upon her own sincere request. 321 U.S., at 162, 64 S.Ct., at 440. In upholding the adult's conviction under the statute, we found that "the interests of society to protect the welfare of children" and to give them "opportunities for growth into free and independent well-developed men and citizens," id., at 165, 64 S.Ct., at 442, permitted the State to enforce its statute, which "[c]oncededly . . . would be invalid," id., at 167, 64 S.Ct., at 442, if made applicable to adults.
15
Although the State has considerable latitude in enacting laws affecting minors on the basis of their lesser capacity for mature, affirmative choice, Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), illustrates that it may not arbitrarily deprive them of their freedom of action altogether. The Court held in Tinker that a schoolchild's First Amendment freedom of expression entitled him, contrary to school policy, to attend school wearing a black armband as a silent protest against American involvement in the hostilities in Vietnam. The Court acknowledged that the State was permitted to prohibit conduct otherwise shielded by the Constitution that "for any reason—whether it stems from time, place, or type of behavior materially disrupts classwork or involves substantial disorder or invasion of the rights of others." Id., at 513, 89 S.Ct., at 740. It upheld the First Amendment right of the schoolchildren in that case, however, not only because it found no evidence in the record that their wearing of black armbands threatened any substantial interference with the proper objectives of the school district, but also because it appeared that the challenged policy was intended primarily to stifle any debate whatsoever—even nondisruptive discussions—on important political and moral issues. See id., at 510, 89 S.Ct., at 738.
16
See, e. g., Mass.Gen.Laws Ann., ch. 207, §§ 7, 24, 25, 33, 33A (West 1958 and Supp.1979) (parental consent required for marriage of person under 18); Mass.Gen.Laws Ann., ch. 119, § 55A (West Supp.1979) (waiver of counsel by minor in juvenile delinquency proceedings must be made through parent or guardian).
17
See Hafen, Children's Liberation and the New Egalitarianism: Some Reservations About Abandoning Children to Their "Rights," 1976 B.Y.U.L.Rev. 605.
18
The Court's opinions discussed in the text above—Pierce, Yoder, Prince, and Ginsberg —all have contributed to a line of decisions suggesting the existence of a constitutional parental right against undue, adverse interference by the State. See also Smith v. Organization of Foster Families, 431 U.S. 816, 842-844, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14 (1977); Carey v. Population Services International, 431 U.S. 678, 708, 97 S.Ct. 2010, 2028, 52 L.Ed.2d 675 (1977) (opinion of POWELL, J.); Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Cf. Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); id., at 621, 99 S.Ct., at 2513 (STEWART, J., concurring in result).
19
In Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 75, 96 S.Ct., at 2844, "[w]e emphasize[d] that our holding . . . [did] not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy."
20
The expert testimony at the hearings in the District Court uniformly was to the effect that parental involvement in a minor's abortion decision, if compassionate and supportive, was highly desirable. The findings of the court reflect this consensus. See Baird I, 393 F.Supp., at 853.
21
Mr. Justice STEWART's concurring opinion in Danforth underscored the need for parental involvement in minors' abortion decisions by describing the procedures followed at the clinic operated by the Parents Aid Society and Dr. Gerald Zupnick:
"The counseling . . . occurs entirely on the day the abortion is to be performed . . . . It lasts for two hours and takes place in groups that include both minors and adults who are strangers to one another . . . . The physician takes no part in this counseling process . . . . Counseling is typically limited to a description of abortion procedures, possible complications, and birth control techniques . . . .
"The abortion itself takes five to seven minutes . . . . The physician has no prior contact with the minor, and on the days that abortions are being performed at the [clinic], the physician . . . may be performing abortions on many other adults and minors . . . . On busy days patients are scheduled in separate groups, consisting usually of five patients . . . . After the abortion [the physician] spends a brief period with the minor and others in the group in the recovery room . . . ." 428 U.S., at 91-92, n. 2, 96 S.Ct., at 2851 n. 2, quoting Brief for Appellants in Bellotti I, O.T.1975, No. 75-73, pp. 43-44.
In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), we emphasized the importance of the role of the attending physician. Those cases involved adult women presumably capable of selecting and obtaining a competent physician. In this case, however, we are concerned only with minors who, according to the record, may range in age from children of 12 years to 17-year-old teenagers. Even the latter are less likely than adults to know or be able to recognize ethical, qualified physicians, or to have the means to engage such professionals. Many minors who bypass their parents probably will resort to an abortion clinic, without being able to distinguish the competent and ethical from those that are incompetent or unethical.
22
As § 12S provides for involvement of the state superior court in minors' abortion decisions, we discuss the alternative procedure described in the text in terms of judicial proceedings. We do not suggest, however, that a State choosing to require parental consent could not delegate the alternative procedure to a juvenile court or an administrative agency or officer. Indeed, much can be said for employing procedures and a forum less formal than those associated with a court of general jurisdiction.
23
The nature of both the State's interest in fostering parental authority and the problem of determining "maturity" makes clear why the State generally may resort to objective, though inevitably arbitrary, criteria such as age limits, marital status, or membership in the Armed Forces for lifting some or all of the legal disabilities of minority. Not only is it difficult to define, let alone determine, maturity, but also the fact that a minor may be very much an adult in some respects does not mean that his or her need and opportunity for growth under parental guidance and discipline have ended. As discussed in the text, however, the peculiar nature of the abortion decision requires the opportunity for case-by-case evaluations of the maturity of pregnant minors.
24
The Supreme Judicial Court held that § 12S imposed this standard on the superior court in large part because it construed the statute as containing the same restriction on parents. See supra, at 630. The court concluded that the judge should not be entitled "to exercise his authority on a standard broader than that to which a parent must adhere." Attorney General, 371 Mass., at 748, 360 N.E.2d, at 293.
Intervenors argue that, assuming state-supported parental involvement in the minor's abortion decision is permissible, the State may not endorse the withholding of parental consent for any reason not believed to be in the minor's best interests. They agree with the District Court that, even though § 12S was construed by the highest state court to impose this restriction, the statute is flawed because the restriction is not apparent on its face. Intervenors thus concur in the District Court's assumption that the statute will encourage parents to withhold consent for impermissible reasons. See Baird III, 450 F.Supp. at 1004-1005; Baird II, 428 F.Supp., 854, 855-856 (Mass.1977).
There is no basis for this assertion. As a general rule, the interpretation of a state statute by the State's highest court "is as though written into the ordinance itself," Poulos v. New Hampshire, 345 U.S. 395, 402, 73 S.Ct. 760, 765, 97 L.Ed. 1105 (1953), and we are obliged to view the restriction on the parental-consent requirement "as if [§ 12S] had been so amended by the [Massachusetts] legislature." Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840 (1948).
25
Intervenors take issue with the Supreme Judicial Court's assurances that judicial proceedings will provide the necessary confidentiality, lack of procedural burden, and speed of resolution. In the absence of any evidence as to the operation of judicial proceedings under § 12S—and there is none, since appellees successfully sought to enjoin Massachusetts from putting it into effect—we must assume that the Supreme Judicial Court's judgment is correct.
26
The statute also provides that "[i]f both parents have died or have deserted their family, consent of the mother's guardian or other person having duties similar to a guardian, or any person who had assumed the care and custody of the mother is sufficient."
27
This reading of the statute requires parental consultation and consent more strictly than appellants themselves previously believed was necessary. In their first argument before this Court, and again before the Supreme Judicial Court, appellants argued that § 12S was not intended to abrogate Massachusetts' common-law "mature minor" rule as it applies to abortions. See 428 U.S., at 144, 96 S.Ct., at 2864. They also suggested that, under some circumstances, § 12S might permit even immature minors to obtain judicial approval for an abortion without any parental consultation. See 428 U.S., at 145, 96 S.Ct., at 2865; Attorney General, supra, 371 Mass., at 751, 360 N.E.2d, at 294. The Supreme Judicial Court sketched the outlines of the mature minor rule that would apply in the absence of § 12S: "The mature minor rule calls for an analysis of the nature of the operation, its likely benefit, and the capacity of the particular minor to understand fully what the medical procedure involves. . . . Judicial intervention is not required. If judicial approval is obtained, however, the doctor is protected from a subsequent claim that the circumstances did not warrant his reliance on the mature minor rule, and, of course, the minor patient is afforded advance protection against a misapplication of the rule." Id., at 752, 360 N.E.2d, at 295. "We conclude that, apart from statutory limitations which are constitutional, where the best interests of a minor will be served by not notifying his or her parents of intended medical treatment and where the minor is capable of giving informed consent to that treatment, the mature minor rule applies in this Commonwealth." Id., at 754, 360 N.E.2d, at 296. The Supreme Judicial Court held that the common-law mature minor rule was inapplicable to abortions because it had been legislatively superseded by § 12S.
28
Of course, if the minor consults with her parents voluntarily and they withhold consent, she is free to seek judicial authorization for the abortion immediately.
29
There will be cases where the pregnant minor has received approval of the abortion decision by one parent. In that event, the parent can support the daughter's request for a prompt judicial determination, and the parent's support should be given great, if not dispositive, weight.
30
Appellees and intervenors have argued that § 12S violates the Equal Protection Clause of the Fourteenth Amendment. As we have concluded that the statute is constitutionally infirm for other reasons, there is no need to consider this question.
31
Section 12S evidently applies to all nonemergency abortions performed on minors, without regard to the period in pregnancy during which the procedure occurs. As the court below recognized, most abortions are performed during the early stages of pregnancy, before the end of the first trimester. See Baird III, 450 F.Supp., at 1001; Baird I, 393 F.Supp., at 853. This coincides approximately with the pre-viability period during which a pregnant woman's right to decide, in consultation with her physician, to have an abortion is most immune to state intervention. See Roe v. Wade, 410 U.S., at 164-165, 93 S.Ct., at 732.
The propriety of parental involvement in a minor's abortion decision does not diminish as the pregnancy progresses and legitimate concerns for the pregnant minor's health increase. Furthermore, the opportunity for direct access to court which we have described is adequate to safeguard throughout pregnancy the constitutionally protected interests of a minor in the abortion decision. Thus, although a significant number of abortions within the scope of § 12S might be performed during the later stages of pregnancy, we do not believe a different analysis of the statute is required for them.
32
The opinion of Mr. Justice STEVENS, concurring in the judgment, joined by three Members of the Court, characterizes this opinion as "ad-
visory" and the questions it addresses as "hypothetical." Apparently, this is criticism of our attempt to provide some guidance as to how a State constitutionally may provide for adult involvement—either by parents or a state official such as a judge in the abortion decisions of minors. In view of the importance of the issue raised, and the protracted litigation to which these parties already have been subjected, we think it would be irresponsible simply to invalidate § 12S without stating our views as to the controlling principles.
The statute before us today is the same one that was here in Bellotti I. The issues it presents were not then deemed "hypothetical." In a unanimous opinion, we remanded the case with directions that appropriate questions be certified to the Supreme Judicial Court of Massachusetts "concerning the meaning of [§ 12S] and the procedure it imposes." 428 U.S., at 151, 96 S.Ct., at 2868. We directed that this be done because, as stated in the opinion, we thought the construction of § 12S urged by appellants would "avoid or substantially modify the federal constitutional challenge to the statute." Id., at 148, 96 S.Ct., at 2866. The central feature of § 12S was its provision that a state-court judge could make the ultimate decision, when necessary, as to the exercise by a minor of the right to an abortion. See Id., at 145, 96 S.Ct. at 2865. We held that this "would be fundamentally different from a statute that creates a 'parental veto' [of the kind rejected in Danforth.]" Ibid. (footnote omitted). Thus, all Members of the Court agreed that providing for decisionmaking authority in a judge was not the kind of veto power held invalid in Danforth. The basic issues that were before us in Bellotti I remain in the case, sharpened by the construction of § 12S by the Supreme Judicial Court.
1
By affording such a veto, the Massachusetts statute does far more than simply provide for notice to the parents. See post, at 657 (WHITE, J., dissenting). Neither Danforth nor this case determines the constitutionality of a statute which does no more than require notice to the parents, without affording them or any other third party an absolute veto.
2
See ante, at 643 n. 22.
3
A minor may secure the assistance of counsel in filing and prosecuting her suit, but that is not guaranteed. The Massachusetts Supreme Judicial Court in response to the question whether a minor, upon a showing of indigency, may have court-appointed counsel, "construe[d] the statutes of the Commonwealth to authorize the appointment of counsel or a guardian ad litem for an indigent minor at public expense, if necessary, if the judge, in his discretion, concludes that the best interests of the minor would be served by such an appointment." Baird v. Attorney General, 371 Mass. 741, 764, 360 N.E.2d 288, 301 (1977) (emphasis added).
4
Until and unless Massachusetts or another State enacts a less restrictive statutory scheme, this Court has no occasion to render an advisory opinion on the constitutionality of such a scheme. A real statute—rather than a mere outline of a possible statute—and a real case or controversy may well present questions that appear quite different from the hypothetical questions Mr. Justice POWELL has elected to address. Indeed, there is a certain irony in his suggestion that a statute that is intended to vindicate "the special interest of the State in encouraging an unmarried pregnant minor to seek the advice of her parents in making the important decision whether or not to bear a child," see ante, at 639, need not require notice to the parents of the minor's intended decision. That irony makes me wonder whether any legislature concerned with parental consultation would, in the absence of today's advisory opinion, have enacted a statute comparable to the one my Brethren have discussed.
| 45
|
443 U.S. 449
99 S.Ct. 2941
61 L.Ed.2d 666
COLUMBUS BOARD OF EDUCATION et al., Petitioners,v.Gary L. PENICK et al.
No. 78-610.
Argued April 24, 1979.
Decided July 2, 1979.
Rehearing Denied Oct. 1, 1979.
See 444 U.S. 887, 100 S.Ct. 186.
Syllabus
This class action was brought in 1973 by students in the Columbus, Ohio, school system, charging that the Columbus Board of Education (Board) and its officials had pursued and were pursuing a course of conduct having the purpose and effect of causing and perpetuating racial segregation in the public schools, contrary to the Fourteenth Amendment. The case was ultimately tried in April-June 1976, final arguments were heard in September 1976, and in March 1977 the District Court filed an opinion and order containing its findings of fact and conclusions of law. It found (1) that in 1954, when Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I), was decided, the Board was not operating a racially neutral unitary school system, but was conducting "an enclave of separate, black schools on the near east side of Columbus" and that this was "the direct result of cognitive acts or omissions of those school board members and administrators who had originally intentionally caused and later perpetuated the racial isolation"; (2) that since the decision in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II), the Board had been under a continuous constitutional obligation to disestablish its dual system and that it has failed to discharge this duty; and (3) that in the intervening years since 1954 there had been a series of Board actions and practices that could not "reasonably be explained without reference to racial concerns" and that "intentionally aggravated, rather than alleviated," racial separation in the schools. Ultimately concluding that at the time of trial the racial segregation in the Columbus school system "directly resulted from [the Board's] intentional segregative acts and omissions," in violation of the Equal Protection Clause of the Fourteenth Amendment, the court, accordingly, enjoined the defendants from continuing to discriminate on the basis of race in operating the public schools and ordered the submission of a systemwide desegregation plan. Subsequently, following the decision in Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (Dayton I ), the District Court rejected the Board's argument that that decision required or permitted modification of the court's finding or judgment. Based on its examination of the record, the Court of Appeals affirmed the judgments against the defendants. Held:
1. On the record, there is no apparent reason to disturb the findings and conclusions of the District Court, affirmed by the Court of Appeals, that the Board's conduct at the time of trial and before not only was animated by an unconstitutional, segregative purpose, but also had current segregative impact that was sufficiently systemwide to warrant the remedy ordered by the District Court. Pp. 454-463.
(a) Proof of purposeful and effective maintenance of a body of separate black schools in a substantial part of the system is itself prima facie proof of a dual system and supports a finding to this effect absent sufficient contrary proof by the Board, which was not forthcoming in this case. Pp. 455-458.
(b) The Board's continuing affirmative duty to disestablish the dual school system, mandated by Brown II, is beyond question, and there is nothing in the record to show that at the time of trial the dual school system in Columbus and its effects had been disestablished. Pp. 458-461.
2. There is no indication that the judgments below rested on any misapprehension of the controlling law. Pp. 463-468.
(a) Where it appears that the District Court, while recognizing that disparate impact and foreseeable consequences, without more, do not establish a constitutional violation, correctly noted that actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact of a forbidden purpose, the court stayed well within the requirements of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, that a plaintiff seeking to make out an equal protection violation on the basis of racial discrimination must show purpose. Pp. 464-465.
(b) Where the District Court repeatedly emphasized that it had found purposefully segregative practices with current, systemwide impact, there was no failure to observe the requirements of Dayton I, that the remedy imposed by a court of equity should be commensurate with the violation ascertained. Pp. 465-467.
(c) Nor was there any misuse of Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, where it was held that purposeful discrimination in a substantial part of a school system furnishes a sufficient basis for an inferential finding of a systemwide discriminatory intent unless otherwise rebutted and that given the purpose to operate a dual school system one could infer a connection between such purpose and racial separation in other parts on the school system. Pp. 467-468.
6 Cir., 583 F.2d 787, affirmed.
Samuel H. Porter, Columbus, Ohio, for petitioners.
Thomas I. Atkins, Boston, Mass., for respondents.
Drew S. Days, III, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
[Amicus Curiae intentionally omitted]
Mr. Justice WHITE delivered the opinion of the Court.
1
The public schools of Columbus, Ohio, are highly segregated by race. In 1976, over 32% of the 96,000 students in the system were black. About 70% of all students attended schools that were at least 80% black or 80% white. 429 F.Supp. 229, 240 (SD Ohio 1977). Half of the 172 schools were 90% black or 90% white. 583 F.2d 787, 800 (CA6 1978). Fourteen named students in the Columbus school system brought this case on June 22, 1973, against the Columbus Board of Education, the State Board of Education, and the appropriate local and state officials.1 The second amended complaint, filed on October 22, 1974, charged that the Columbus defendants had pursued and were pursuing a course of conduct having the purpose and effect of causing and perpetuating segregation in the public schools, contrary to the Fourteenth Amendment. A declaratory judgment to this effect and appropriate injunctive relief were prayed. Trial of the case began more than a year later, consumed 36 trial days, produced a record containing over 600 exhibits and a transcript in excess of 6,600 pages, and was completed in June 1976. Final arguments were heard in September, and in March 1977 the District Court filed an opinion and order containing its findings of fact and conclusions of law. 429 F.Supp. 229.
The trial court summarized its findings:
2
"From the evidence adduced at trial, the Court has found earlier in this opinion that the Columbus Public Schools were openly and intentionally segregated on the basis of race when Brown [v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I )] was decided in 1954. The Court has found that the Columbus Board of Education never actively set out to dismantle this dual system. The Court has found that until legal action was initiated by the Columbus Area Civil Rights Council, the Columbus Board did not assign teachers and administrators to Columbus schools at random, without regard for the racial composition of the student enrollment at those schools. The Columbus Board even in very recent times . . . has approved optional attendance zones, discontiguous attendance areas and boundary changes which have maintained and enhanced racial imbalance in the Columbus Public Schools. The Board, even in very recent times and after promising to do otherwise, has adjured [sic ] workable suggestions for improving the racial balance of city schools.
3
"Viewed in the context of segregative optional attendance zones, segregative faculty and administrative hiring and assignments, and the other such actions and decisions of the Columbus Board of Education in recent and remote history, it is fair and reasonable to draw an inference of segregative intent from the Board's actions and omissions discussed in this opinion." Id., at 260-261.
4
The District Court's ultimate conclusion was that at the time of trial the racial segregation in the Columbus school system "directly resulted from [the Board's] intentional segregative acts and omissions," id., at 259, in violation of the Equal Protection Clause of the Fourteenth Amendment. Accordingly, judgment was entered against the local and state defendants enjoining them from continuing to discriminate on the basis of race in operating the Columbus public schools and ordering the submission of a systemwide desegregation plan.
5
Following decision by this Court in Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (Dayton I ), in June 1977, and in response to a motion by the Columbus Board, the District Court rejected the argument that Dayton I required or permitted any modification of its findings or judgment. It reiterated its conclusion that the Board's " 'liability in this case concerns the Columbus School District as a whole,' " App. to Pet. for Cert. 94, quoting 429 F.Supp., at 266, asserting that, although it had "no real interest in any remedy plan which is more sweeping than necessary to correct the constitutional wrongs plaintiffs have suffered," neither would it accept any plan "which fails to take into account the systemwide nature of the liability of the defendants." App. to Pet. for Cert. 95. The Board subsequently presented a plan that complied with the District Court's guidelines and that was embodied in a judgment entered on October 7. The plan was stayed pending appeal to the Court of Appeals.
6
Based on its own examination of the extensive record, the Court of Appeals affirmed the judgments entered against the local defendants.2 583 F.2d 787. The Court of Appeals could not find the District Court's findings of fact clearly erroneous. Id. at 789. Indeed, the Court of Appeals examined in detail each set of findings by the District Court and found strong support for them in the record. Id., at 798, 804, 805, 814. The Court of Appeals also discussed in detail and found unexceptionable the District Court's understanding and application of the Fourteenth Amendment and the cases construing it.
7
Implementation of the desegregation plan was stayed pending our disposition of the case. 439 U.S. 1348, 99 S.Ct. 24, 58 L.Ed.2d 55 (1978) (REHNQUIST, J., in chambers). We granted the Board's petition for certiorari, 439 U.S. 1066, 99 S.Ct. 831, 59 L.Ed.2d 31 (1979), and we now affirm the judgment of the Court of Appeals.
8
* The Board earnestly contends that when this case was brought and at the time of trial its operation of a segregated school system was not done with any general or specific racially discriminatory purpose, and that whatever unconstitutional conduct it may have been guilty of in the past such conduct at no time had systemwide segregative impact and surely no remaining systemwide impact at the time of trial. A systemwide remedy was therefore contrary to the teachings of the cases, such as Dayton I, that the scope of the constitutional violation measures the scope of the remedy.3
9
We have discovered no reason, however, to disturb the judgment of the Court of Appeals, based on the findings and conclusions of the District Court, that the Board's conduct at the time of trial and before not only was animated by an unconstitutional, segregative purpose, but also had current, segregative impact that was sufficiently systemwide to warrant the remedy ordered by the District Court.
10
These ultimate conclusions were rooted in a series of constitutional violations that the District Court found the Board to have committed and that together dictated its judgment and decree. In each instance, the Court of Appeals found the District Court's conclusions to be factually and legally sound.
A.
11
First, although at least since 1888 there had been no statutory requirement or authorization to operate segregated schools,4 the District Court found that in 1954, when Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I ), was decided, the Columbus Board was not operating a racially neutral, unitary school system, but was conducting "an enclave of separate, black schools on the near east side of Columbus," and that "[t]he then-existing racial separation was the direct result of cognitive acts or omissions of those school board members and administrators who had originally intentionally caused and later perpetuated the racial isolation . . . ." 429 F.Supp., at 236. Such separateness could not "be said to have been the result of racially neutral official acts." Ibid.
12
Based on its own examination of the record, the Court of Appeals agreed with the District Court in this respect, observing that, "[w]hile the Columbus school system's dual black-white character was not mandated by state law as of 1954, the record certainly shows intentional segregation by the Columbus Board. As of 1954 the Columbus School Board had 'carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers and facilities within the school system.' " 583 F.2d, at 798-799, quoting Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 201-202, 93 S.Ct. 2686, 2694-2695, 37 L.Ed.2d 548 (1973).
13
The Board insists that, since segregated schooling was not commanded by state law and since not all schools were wholly black or wholly white in 1954, the District Court was not warranted in finding a dual system.5 But the District Court found that the "Columbus Public Schools were officially segregated by race in 1954," App. to Pet. for Cert. 94 (emphasis added);6 and in any event, there is no reason to question the finding that as the "direct result of cognitive acts or omissions" the Board maintained "an enclave of separate, black schools on the near east side of Columbus." 429 F.Supp., at 236. Proof of purposeful and effective maintenance of a body of separate black schools in a substantial part of the system itself is prima facie proof of a dual school system and supports a finding to this effect absent sufficient contrary proof by the Board, which was not forthcoming in this case. Keyes, supra, 413 U.S., at 203, 93 S.Ct., at 2695.7
B
14
Second, both courts below declared that since the decision in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II ), the Columbus Board has been under a continuous constitutional obligation to disestablish its dual school system and that it has failed to discharge this duty. App. to Pet. for Cert. 94; 583 F.2d, at 799. Under the Fourteenth Amendment and the cases that have construed it, the Board's duty to dismantle its dual system cannot be gainsaid.
15
Where a racially discriminatory school system has been found to exist, Brown II imposes the duty on local school boards to "effectuate a transition to a racially nondiscriminatory school system." 349 U.S., at 301, 75 S.Ct., at 756. "Brown II was a call for the dismantling of well-entrenched dual systems," and school boards operating such systems were "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board, 391 U.S. 430, 437-438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). Each instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment. Dayton I, 433 U.S., at 413-414, 97 S.Ct., at 2771-2772; Wright v. Council of City of Emporia, 407 U.S. 451, 460, 92 S.Ct. 2196, 2202, 33 L.Ed.2d 51 (1972); United States v. Scotland Neck Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972) (creation of a new school district in a city that had operated a dual school system but was not yet the subject of court-ordered desegregation).
16
The Green case itself was decided 13 years after Brown II. The core of the holding was that the school board involved had not done enough to eradicate the lingering consequences of the dual school system that it had been operating at the time Brown I was decided. Even though a freedom-of-choice plan had been adopted, the school system remained essentially a segregated system, with many all-black and many all-white schools. The board's continuing obligation, which had not been satisfied, was " 'to come forward with a plan that promises realistically to work . . . now . . . until it is clear that state-imposed segregation has been completely removed.' " Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 13, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971), quoting Green, supra, 391 U.S., at 439, 88 S.Ct., at 1694 (emphasis in original).
17
As THE CHIEF JUSTICE's opinion for a unanimous Court in Swann recognized, Brown and Green imposed an affirmative duty to desegregate. "If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. . . . In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system." 402 U.S., at 15-16, 91 S.Ct., at 1276. In Swann, it should be recalled, an initial desegregation plan had been entered in 1965 and had been affirmed on appeal. But the case was reopened, and in 1969 the school board was required to come forth with a more effective plan. The judgment adopting the ultimate plan was affirmed here in 1971, 16 years after Brown II.
18
In determining whether a dual school system has been disestablished, Swann also mandates that matters aside from student assignments must be considered:
19
"[W]here it is possible to identify a 'white school' or a 'Negro school' simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown." 402 U.S., at 18, 91 S.Ct., at 1277.
20
Further, Swann stated that in devising remedies for legally imposed segregation the responsibility of the local authorities and district courts is to ensure that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual school system. Id., at 20-21, 91 S.Ct., at 1278-1279. As for student assignments, the Court said:
21
"No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority's compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantly of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory." Id., at 26, 91 S.Ct., at 1281.
22
The Board's continuing "affirmative duty to disestablish the dual school system" is therefore beyond question, McDaniel- v. Barresi, 402 U.S. 39, 41, 91 S.Ct. 1287, 1288, 28 L.Ed.2d 582 (1971), and it has pointed to nothing in the record persuading us that at the time of trial the dual school system and its effects had been disestablished. The Board does not appear to challenge the finding of the District Court that at the time of trial most blacks were still going to black schools and most whites to white schools. Whatever the Board's current purpose with respect to racially separate education might be, it knowingly continued its failure to eliminate the consequences of its past intentionally segregative policies. The Board "never actively set out to dismantle this dual system." 429 F.Supp., at 260.
C
23
Third, the District Court not only found that the Board had breached its constitutional duty by failing effectively to eliminate the continuing consequences of its intentional systemwide segregation in 1954, but also found that in the intervening years there had been a series of Board actions and practices that could not "reasonably be explained without reference to racial concerns," id., at 241, and that "intentionally aggravated, rather than alleviated," racial separation in the schools. App. to Pet. for Cert. 94. These matters included the general practice of assigning black teachers only to those schools with substantial black student populations, a practice that was terminated only in 1974 as the result of a conciliation agreement with the Ohio Civil Rights Commission; the intentionally segregative use of optional attendance zones,8 discontiguous attendance areas,9 and boundary changes;10 and the selection of sites for new school construction that had the foreseeable and anticipated effect of maintaining the racial separation of the schools.11 The court generally noted that "[s]ince the 1954 Brown decision, the Columbus defendants or their predecessors were adequately put on notice of the fact that action was required to correct and to prevent the increase in" segregation, yet failed to heed their duty to alleviate racial separation in the schools. 429 F.Supp., at 255.12
II
24
Against this background, we cannot fault the conclusion of the District Court and the Court of Appeals that at the time of trial there was systemwide segregation in the Columbus schools that was the result of recent and remote intentionally segregative actions of the Columbus Board. While appearing not to challenge most of the subsidiary findings of historical fact, Tr. of Oral Arg. 7, petitioners dispute many of the factual inferences drawn from these facts by the two courts below. On this record, however, there is no apparent reason to disturb the factual findings and conclusions entered by the District Court and strongly affirmed by the Court of Appeals after its own examination of the record.
25
Nor do we discern that the judgments entered below rested on any misapprehension of the controlling law. It is urged that the courts below failed to heed the requirements of Keyes, Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), that a plaintiff seeking to make out an equal protection violation on the basis of racial discrimination must show purpose. Both courts, it is argued, considered the requirement satisfied if it were shown that disparate impact would be the natural and foreseeable consequence of the practices and policies of the Board, which, it is said, is nothing more than equating impact with intent, contrary to the controlling precedent.
26
The District Court, however, was amply cognizant of the controlling cases. It is understood that to prevail the plaintiffs were required to " 'prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action,' " 429 F.Supp., at 251, quoting Keyes, 413 U.S., at 198, 93 S.Ct., at 2692—that is, that the school officials had "intended to segregate." 429 F.Supp., at 254. See also 583 F.2d, at 801. The District Court also recognized that under those cases disparate impact and foreseeable consequences, without more, do not establish a constitutional violation. See, e. g., 429 F.Supp., at 251. Nevertheless, the District Court correctly noted that actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose. Those cases do not forbid "the foreseeable effects standard from being utilized as one of the several kinds of proofs from which an inference of segregative intent may be properly drawn." Id., at 255. Adherence to a particular policy or practice, "with full knowledge of the predictable effects of such adherence upon racial imbalance in a school system is one factor among many others which may be considered by a court in determining whether an inference of segregative intent should be drawn." Ibid. The District Court thus stayed well within the requirements of Washington v. Davis and Arlington Heights. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 n. 25, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979).
27
It is also urged that the District Court and the Court of Appeals failed to observe the requirements of our recent decision in Dayton I, which reiterated the accepted rule that the remedy imposed by a court of equity should be commensurate with the violation ascertained, and held that the remedy for the violations that had then been established in that case should be aimed at rectifying the "incremental segregative effect" of the discriminatory acts identified.13 In Dayton I, only a few apparently isolated discriminatory practices had been found;14 yet a systemwide remedy had been imposed without proof of a systemwide impact. Here, however, the District Court repeatedly emphasized that it had found purposefully segregative practices with current, systemwide impact.15 429 F.Supp., at 252, 259-260, 264, 266; App. to Pet. for Cert. 95; 583 F.2d, at 799.16 And the Court of Appeals, responding to similar arguments, said:
28
"School board policies of systemwide application necessarily have systemwide impact. 1) The pre-1954 policy of creating an enclave of five schools intentionally designed for black students and known as 'black' schools, as found by the District Judge, clearly had a 'substantial'—indeed, a systemwide—impact. 2) The post-1954 failure of the Columbus Board to desegregate the school system in spite of many requests and demands to do so, of course, had systemwide impact. 3) So, too, did the Columbus Board's segregative school construction and siting policy as we have detailed it above. 4) So too did its student assignment policy which, as shown above, produced the large majority of racially identifiable schools as of the school year 1975-76. 5) The practice of assigning black teachers and administrators only or in large majority to black schools likewise represented a systemwide policy of segregation. This policy served until July 1974 to deprive black students of opportunities for contact with and learning from white teachers, and conversely to deprive white students of similar opportunities to meet, know and learn from black teachers. It also served as discriminatory, systemwide racial identification of schools." 583 F.2d, at 814.
29
Nor do we perceive any misuse of Keyes, where we held that purposeful discrimination in a substantial part of a school system furnishes a sufficient basis for an inferential finding of a systemwide discriminatory intent unless otherwise rebutted, and that given the purpose to operate a dual school system one could infer a connection between such a purpose and racial separation in other parts of the school system. There was no undue reliance here on the inferences permitted by Keyes, or upon those recognized by Swann. Furthermore, the Board was given ample opportunity to counter the evidence of segregative purpose and current, systemwide impact, and the findings of the courts below were against it in both respects. 429 F.Supp., at 260; App. to Pet. for Cert. 95, 102, 105.
30
Because the District Court and the Court of Appeals committed no prejudicial errors of fact or law, the judgment appealed from must be affirmed.
31
So ordered.
32
Mr. CHIEF JUSTICE BURGER, concurring in the judgment.
33
I perceive no real difference in the legal principles stated in the dissenting opinions of Mr. Justice REHNQUIST and Mr. Justice POWELL on the one hand and the opinion of Mr. Justice STEWART, concurring in the result in this case on the other, 443 U.S. 449, 99 S.Ct. 2982, 61 L.Ed.2d 666; they differ only in their view of the District Court's role in applying these principles in the finding of facts.
34
Like Mr. Justice REHNQUIST, I have serious doubts as to how many of the post-1954 actions of the Columbus Board of Education can properly be characterized as segregative in intent and effect. On this record I might very well have concluded that few of them were. However, like Mr. Justice STEWART, I am prepared to defer to the trier of fact because I find it difficult to hold that the errors rise to the level of "clearly erroneous" under Rule 52. The District Court did find facts sufficient to justify the conclusion reached by Mr. Justice STEWART that the school "district was not being operated in a racially neutral manner" and that the Board's actions affected "a meaningful portion" of the school system. Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973). For these reasons I join Mr. Justice STEWART's opinion.
35
In joining that opinion, I must note that I agree with much that is said by Justices REHNQUIST and POWELL in their dissenting opinions in this case and in Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720. I agree especially with that portion of Mr. Justice REHNQUIST's opinion that criticizes the Court's reliance on the finding that both Columbus and Dayton operated "dual school systems" at the time of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), as a basis for holding that these school boards have labored under an unknown and unforeseeable affirmative duty to desegregate their schools for the past 25 years. Nothing in reason or our previous decisions provides foundation for this novel legal standard.
36
I also agree with many of the concerns expressed by Mr. Justice POWELL with regard to the use of massive transportation as a "remedy." It is becoming increasingly doubtful that massive public transportation really accomplishes the desirable objectives sought. Nonetheless our prior decisions have sanctioned its use when a constitutional violation of sufficient magnitude has been found. We cannot retry these sensitive and difficult issues in this Court; we can only set the general legal standards and, within the limits of appellate review, see that they are followed.
37
Mr. Justice STEWART, with whom THE CHIEF JUSTICE, joins, concurring in the result in No. 78-610 and dissenting in No. 78-627.
38
My views in these cases differ in significant respects from those of the Court, leading me to concur only in the result in the Columbus case, and to dissent from the Court's judgment in the Dayton case.
39
It seems to me that the Court of Appeals in both of these cases ignored the crucial role of the federal district courts in school desegregation litigation1—a role repeatedly emphasized by this Court throughout the course of school desegregation controversies, from Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II ),2 to Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (Dayton I ).3 The development of the law concerning school segregation has not reduced the need for sound factfinding by the district courts, nor lessened the appropriateness of deference to their findings of fact. To the contrary, the elimination of the more conspicuous forms of governmentally ordained racial segregation over the last 25 years counsels undiminished deference to the factual adjudications of the federal trial judges in cases such as these, uniquely situated as those judges are to appraise the societal forces at work in the communities where they sit.
40
Whether actions that produce racial separation are intentional within the meaning of Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548; Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597; and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, is an issue that can present very difficult and subtle factual questions. Similarly intricate may be factual inquiries into the breadth of any constitutional violation, and hence of any permissible remedy. See Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (Milliken I ); Dayton I, supra. Those tasks are difficult enough for a trial judge. The coldness and impersonality of a printed record, containing the only evidence available to an appellate court in any case, can hardly make the answers any clearer. I doubt neither the diligence nor the perseverance of the judges of the courts of appeals, or of my Brethren, but I suspect that it is impossible for a reviewing court factually to know a case from a 6,600-page printed record as well as the trial judge knew it. In assessing the facts in lawsuits like these, therefore, I think appellate courts should accept even more readily than in most cases the factual findings of the courts of first instance.
41
My second disagreement with the Court in these cases stems from my belief that the Court has attached far too much importance in each case to the question whether there existed a "dual school system" in 1954. As I understand the Court's opinions in these cases, if such an officially authorized segregated school system can be found to have existed in 1954, then any current racial separation in the schools will be presumed to have been caused by acts in violation of the Constitution. Even if, as the Court says, this presumption is rebuttable, the burden is on the school board to rebut it. And, when the factual issues are as elusive as these, who bears the burden of proof can easily determine who prevails in the litigation. Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1341-1342, 2 L.Ed.2d 1460.
42
I agree that a school district in violation of the Constitution in 1954 was under a duty to remedy that violation. So was a school district violating the Constitution in 1964, and so is one violating the Constitution today. But this duty does not justify a complete shift of the normal burden of proof.4
43
Presumptions are sometimes justified because in common experience some facts are likely to follow from others. See Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777; Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. A constitutional violation in 1954 might be presumed to make the existence of a constitutional violation 20 years later more likely than not in one of two ways. First, because the school board then had an invidious intent, the continuing existence of that collective state of mind might be presumed in the absence of proof to the contrary. Second, quite apart from the current intent of the school board, an unconstitutionally discriminatory school system in 1954 might be presumed still to have major effects on the contemporary system. Neither of these possibilities seems to me likely enough to support a valid presumption.
44
Much has changed in 25 years, in the Nation at large and in Dayton and Columbus in particular. Minds have changed with respect to racial relationships. Perhaps more importantly, generations have changed. The prejudices of the school boards of 1954 (and earlier) cannot realistically be assumed to haunt the school boards of today. Similarly, while two full generations of students have progressed from kindergarten through high school, school systems have changed. Dayton and Columbus are both examples of the dramatic growth and change in urban school districts.5 It is unrealistic to assume that the hand of 1954 plays any major part in shaping the current school systems in either city. For these reasons, I simply cannot accept the shift in the litigative burden of proof adopted by the Court.
45
Because of these basic disagreements with the Court's approach, these two cases look quite different to me from the way they look to the Court. In both cases there is no doubt that many of the districts' children are in schools almost solely with members of their own race. These racially distinct areas make up substantial parts of both districts. The question remains, however, whether the plaintiffs showed that this racial separation was the result of intentional systemwide discrimination.
The Dayton case
46
After further hearings following the remand by this Court in the first Dayton case, the District Court dismissed this lawsuit. It found that the plaintiffs had not proved a discriminatory purpose behind many of the actions challenged. It found further that the plaintiffs had not proved that any significant segregative effect had resulted from those few practices that the school board had previously undertaken with an invalid intent. The Court of Appeals held these findings to be clearly erroneous. I cannot agree.
47
As to several claimed acts of post-1954 discrimination, the Court of Appeals seems simply to have differed with the trial court's factual assessments, without offering a reasoned explanation of how the trial court's finding fell short.6 The Court of Appeals may have been correct in its assessment of the facts, but that is not demonstrated by its opinion. I would accept the trial judge's findings of fact.
48
Furthermore, the Court of Appeals relied heavily on the proposition that the Dayton School District was a "dual system" in 1954, and today this Court places great stress on the same foundation. In several instances, the Court of Appeals overturned the District Court's findings of fact because of the trial court's failure to shift the burden of proof.7 Because I think this shifting of the burden is wholly unjustified, it seems to me a serious mistake to upset the District Court's findings on any such basis. If one accepts the facts as found by the District Judge, there is almost no basis for finding any constitutional violations after 1954. Nor is there any substantial evidence of the continuing impact of pre-1954 discrimination. Only if the defendant school board is saddled with the burdens of proving that it acted out of proper motives after 1954 and that factors other than pre-1954 policies led to racial separation in the district's schools, could these plaintiffs possibly prevail.
49
For the reasons I have expressed, I dissent from the opinion and judgment of the Court.
The Columbus case
50
In contrast, the Court of Appeals did not upset the District Court's findings of fact in this case. In a long and careful opinion, the District Judge discussed numerous examples of overt racial discrimination continuing into the 1970's.8 Just as I would defer to the findings of fact made by the District Court in the Dayton case, I would accept the trial court's findings in this case.
51
The Court of Appeals did rely in part on its finding that the Columbus Board operated a dual school system in 1954, as does this Court. But evidence of recent discriminatory intent, so lacking in the Dayton case, was relatively strong in this case. The particular illustrations recounted by the District Court may not have affected a large portion of the school district, but they demonstrated that the district was not being operated in a racially neutral manner. The District Court found that the Columbus Board had intentionally discriminated against Negro students in some schools, and that there was substantial racial separation throughout the district. The question in my judgment is whether the District Court's conclusion that there had been a systemwide constitutional violation can be upheld on the basis of those findings, without reference to an affirmative duty stemming from the situation in 1954.
52
I think the Court's decision in Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, provides the answer:
53
"[W]e hold that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions." Id., at 208, 93 S.Ct., at 2697.
54
The plaintiffs in the Columbus case, unlike those in the Dayton case, proved what the Court in Keyes defined as a prima facie case.9 The District Court and the Court of Appeals correctly found that the school board did not rebut this presumption. It is on this basis that I agree with the District Court and the Court of Appeals in concluding that the Columbus School District was operated in violation of the Constitution.
55
The petitioners in the Columbus case also challenge the remedy imposed by the District Court. Just two Terms ago we set out the test for determining the appropriate scope of a remedy in a case such as this:
56
"If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the . . . school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy." Dayton I, 433 U.S., at 420, 97 S.Ct., at 2775.
57
In the context in which the Columbus case has reached us, I cannot say that the remedy imposed by the District Court was impermissible under this test. For the reasons discussed above, the District Court's conclusion that there was a systemwide constitutional violation was soundly based. And because the scope of the remedy is tied to the scope of the violation, a remedy encompassing the entire school district was presumptively appropriate. In litigating the question of remedy, however, I think the defendants in a case such as this should always be permitted to show that certain schools or areas were not affected by the constitutional violation.
58
The District Court in this case did allow the defendants to show just that. The school board proposed several remedies, but it put forward only one plan that was limited by the allegedly limited effects of the violation. That plan would have remedied racial imbalance only in the schools mentioned in the District Court's opinion. Another remedy proposed by the school board would have resulted in a rough racial balance in all but 22 "all-white" schools. But the board did not assert that those schools had been unaffected by the violations. Instead, it justified that plan on the ground that it would bring the predominately Negro schools into balance with no need to involve the 22 all-white schools on the periphery of the district. The District Court rejected this plan, finding that it would not offer effective desegregation since it would leave those 22 schools available for "white flight." The plan ultimately adopted by the District Court used the Negro school population of Columbus as a benchmark, and decreed that all the public schools should be a 32% minority, plus or minus 15%.
59
Although, as the Court stressed in Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, a remedy is to be judged by its effectiveness, effectiveness alone is not a reason for extending a remedy to all schools in a district. An easily visible correlation between school segregation and residential segregation cannot by itself justify the blanket extension of a remedy throughout a district. As Dayton I made clear, unless a school was affected by the violations, it should not be included in the remedy. I suspect the defendants in Columbus might have been able to show that at least some schools in the district were not affected by the proved violations. Schools in the far eastern or northern portions of the district were so far removed from the center of Negro population that the unconstitutional actions of the board may not have affected them at all. But the defendants did not carry the burden necessary to exclude those schools.
60
The remedy adopted by the District Court used numerical guidelines, but it was not for that reason invalid. As this Court said in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554:
61
"Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court." Id., at 25, 91 S.Ct., at 1280.
62
On this record, therefore, I cannot say that the remedy was improper.
63
For these reasons, I concur in the result in Columbus Board of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666, and dissent in Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720.
64
Mr. Justice POWELL, dissenting.
65
I join the dissenting opinions of Mr. Justice REHNQUIST and write separately to emphasize several points. The Court's opinions in these two cases are profoundly disturbing. They appear to endorse a wholly new constitutional concept applicable to school cases. The opinions also seem remarkably insensitive to the now widely accepted view that a quarter of a century after Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I ), the federal judiciary should be limiting rather than expanding the extent to which courts are operating the public school systems of our country. In expressing these views, I recognize, of course, that my Brothers who have joined the Court's opinions are motivated by purposes and ideals that few would question. My dissent is based on a conviction that the Court's opinions condone the creation of bad constitutional law and will be even worse for public education—an element of American life that is essential, especially for minority children.
66
* Mr. Justice REHNQUIST's dissents demonstrate that the Court's decisions mark a break with both precedent and principle. The Court indulges the courts below in their stringing together of a chain of "presumptions," not one of which is close enough to reality to be reasonable. See ante, at 2984 (opinion of STEWART, J.). This chain leads inexorably to the remarkable conclusion that the absence of integration found to exist in a high percentage of the 241 schools in Columbus and Dayton was caused entirely by intentional violations of the Fourteenth Amendment by the school boards of these two cities. Although this conclusion is tainted on its face, is not supported by evidence in either case, and as a general matter seems incredible, the courts below accepted it as the necessary premise for requiring as a matter of constitutional law a systemwide remedy prescribing racial balance in each and every school.
67
There are unintegrated schools in every major urban area in the country that contains a substantial minority population. This condition results primarily from familiar segregated housing patterns, which—in turn—are caused by social, economic, and demographic forces for which no school board is responsible. These causes of the greater part of the school segregation problem are not newly discovered. Nearly a decade ago, Professor Bickel wrote:
68
"In most of the larger urban areas, demographic conditions are such that no policy that a court can order, and a school board, a city or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of the environment involving economic and social policy on the broadest conceivable front might have an appreciable impact." A. Bickel, The Supreme Court and the Idea of Progress 132, and n. 47 (1970).1
69
Federal courts, including this Court today, continue to ignore these indisputable facts. Relying upon fictions and presumptions in school cases that are irreconcilable with principles of equal protection law applied in all other cases, see, e. g., Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), federal courts prescribe systemwide remedies without relation to the causes of the segregation found to exist, and implement their decrees by requiring extensive transportation of children of all school ages.
70
The type of state-enforced segregation that Brown I property condemned no longer exists in this country. This is not to say that school boards—particularly in the great cities of the North, Midwest, and West—are taking all reasonable measures to provide integrated educational opportunities. As I indicated in my separate opinion in Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 223-236, 93 S.Ct. 2686, 2704-2711, 37 L.Ed.2d 548 (1973), de facto segregation has existed on a large scale in many of these cities, and often it is indistinguishable in effect from the type of de jure segregation outlawed by Brown. Where there is proof of intentional segregative action or inaction, the federal courts must act, but their remedies should not exceed the scope of the constitutional violation. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Austin Independent School Dist. v. United States, 429 U.S. 990, 991, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976) (POWELL, J., concurring); Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976); Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). Systemwide remedies such as were ordered by the courts below, and today are approved by this Court, lack any principled basis when the absence of integration in all schools cannot reasonably be attributed to discriminatory conduct.2
71
Mr. Justice REHNQUIST has dealt devastatingly with the way in which the Court of Appeals endowed prior precedents with new and wondrous meanings. I can add little to what he has said. I therefore move to more general but, in my view, important considerations that the Court simply ignores.
II
72
Holding the school boards of these two cities responsible for all of the segregation in the Dayton and Columbus systems and prescribing fixed racial ratios in every school as the constitutionally required remedy necessarily implies a belief that the same school board—under court supervision—will be capable of bringing about and maintaining the desired racial balance in each of these schools. The experience in city after city demonstrates that this is an illusion. The process of resegregation, stimulated by resentment against judicial coercion and concern as to the effect of court supervision of education, will follow today's decisions as surely as it has in other cities subjected to similar sweeping decrees.
73
The orders affirmed today typify intrusions on local and professional authorities that affect adversely the quality of education. They require an extensive reorganization of both school systems, including the reassignment of almost half of the 96,000 students in the Columbus system and the busing of some 15,000 students in Dayton. They also require reassignments of teachers and other staff personnel, reorganization of grade structures, and the closing of certain schools. The orders substantially dismantle and displace neighborhood schools in the face of compelling economic and educational reasons for preserving them. This wholesale substitution of judicial legislation for the judgments of elected officials and professional educators derogates the entire process of public education.3 Moreover, it constitutes a serious interference with the private decisions of parents as to how their children will be educated. These harmful consequences are the inevitable byproducts of a judicial approach that ignores other relevant factors in favor of an exclusive focus on racial balance in every school.
74
These harmful consequences, moreover, in all likelihood will provoke responses that will defeat the integrative purpose of the courts' orders. Parents, unlike school officials are not bound by these decrees and may frustrate them through the simple expedient of withdrawing their children from a public school system in which they have lost confidence. In spite of the substantial costs often involved in relocation of the family or in resort to private education,4 experience demonstrates that many parents view these alternatives as preferable to submitting their children to court-run school systems. In the words of a leading authority:
75
"An implication that should have been seen all along but can no longer be ignored is that a child's enrollment in a given public school is not determined by a governmental decision alone. It is a joint result of a governmental decision (the making of school assignments) and parental decisions, whether to remain in the same residential location, whether to send their child to a private school, or which school district to move into when moving into a metropolitan area. The fact that the child's enrollment is a result of two decisions operating jointly means that government policies must, to be effective, anticipate parental decisions and obtain the parents' active cooperation in implementing school policies." Coleman, New Incentives for Desegregation, 7 Human Rights, No. 3, pp. 10, 13 (1978).
76
At least where inner-city populations comprise a large proportion of racial minorities and surrounding suburbs remain white, conditions that exist in most large American cities, the demonstrated effect of compulsory integration is a substantial exodus of whites from the system. See J. Coleman, S. Kelly, & J. Moore, Trends in School Segregation, 1968-1973, pp. 66, 76-77 (1975). It would be unfair and misleading to attribute this phenomenon to a racist response to integration per se. It is at least as likely that the exodus is in substantial part a natural reaction to the displacement of professional and local control that occurs when courts go into the business of restructuring and operating school systems.
77
Nor will this resegregation be the only negative effect of court-coerced integration on minority children. Public schools depend on community support for their effectiveness. When substantial elements of the community are driven to abandon these schools, their quality tends to decline, sometimes markedly. Members of minority groups, who have relied especially on education as a means of advancing themselves, also are likely to react to this decline in quality by removing their children from public schools.5 As a result, public school enrollment increasingly will become limited to children from families that either lack the resources to choose alternatives or are indifferent to the quality of education. The net effect is an overall deterioration in public education, the one national resource that traditionally has made this country a land of opportunity for diverse ethnic and racial groups. See Keyes,, 413 U.S., at 250, 93 S.Ct., at 2718 (opinion of POWELL, J.).
III
78
If public education is not to suffer further, we must "return to a more balanced evaluation of the recognized interests of our society in achieving desegregation with other educational and societal interests a community may legitimately assert." Id., at 253, 93 S.Ct., at 2719. The ultimate goal is to have quality school systems in which racial discrimination is neither practiced nor tolerated. It has been thought that ethnic and racial diversity in the classroom is a desirable component of sound education in our country of diverse populations, a view to which I subscribe. The question that courts in their single-minded pursuit of racial balance seem to ignore is how best to move toward this goal.
79
For a decade or more after Brown I, the courts properly focused on dismantling segregated school systems as a means of eliminating state-imposed discrimination and furthering wholesome diversity in the schools.6 Experience in recent years, however, has cast serious doubt upon the efficacy of far-reaching judicial remedies directed not against specific constitutional violations, but rather imposed on an entire school system on the fictional assumption that the existence of identifiable black or white schools is caused entirely by intentional segregative conduct, and is evidence of systemwide discrimination. In my view, some federal courts—now led by this Court—are pursuing a path away from rather than toward the desired goal. While these courts conscientiously view their judgments as mandated by the Constitution (a view that would have astonished constitutional scholars throughout most of our history), the fact is that restructuring and overseeing the operation of major public school systems—as ordered in these cases—fairly can be viewed as social engineering that hardly is appropriate for the federal judiciary.
80
The time has come for a thoughtful re-examination of the proper limits of the role of courts in confronting the intractable problems of public education in our complex society. Proved discrimination by state or local authorities should never be tolerated, and it is a first responsibility of the judiciary to put an end to it where it has been proved. But many courts have continued also to impose wide-ranging decrees, and to retain ongoing supervision over school systems. Local and state legislative and administrative authorities have been supplanted or relegated to initiative-stifling roles as minions of the courts. Indeed, there is reason to believe that some legislative bodies have welcomed judicial activism with respect to a subject so inherently difficult and so politically sensitive that the prospect of others confronting it seems inviting. Federal courts no longer should encourage this deference by the appropriate authorities—no matter how willing they may be to defer. Courts are the branch least competent to provide long-range solutions acceptable to the public and most conducive to achieving both diversity in the classroom and quality education.
81
School boards need not wait, and many have not waited, for innovative legislative guidance. The opinion of the Court in Swann, though often cited (as in this case) for views I think were never intended, identified some constructive actions always open to school authorities:
82
"An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority [or less in the majority] is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such a transfer arrangement must grant the transferring student free transportation and space must be made available in the school to which he desires to move." 402 U.S., at 26-27, 91 S.Ct., at 1281.
83
See also Keyes, 413 U.S., at 240-241, 93 S.Ct., at 2713 (opinion of POWELL, J.). Incentives can be employed to encourage these transfers, such as creation of magnet schools providing special educational benefits and state subsidization of those schools that expand their minority enrollments. See, e. g., Willie, Racial Balance or Quality Education?, in School Desegregation, Shadow and Substance 7 (Levinsohn & Wright eds. 1976). These and like plans, if adopted voluntarily by States, also could help counter the effects of racial imbalances between school districts that are beyond the reach of judicial correction. See Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) ; cf. Coleman, 7 Human Rights, at 48-49.7
84
After all, and in spite of what many view as excessive government regulation, we are a free society—perhaps the most free of any in the world. Our people instinctively resent coercion, and perhaps most of all when it affects their children and the opportunities that only education affords them. It is now reasonably clear that the goal of diversity that we call integration, if it is to be lasting and conducive to quality education, must have the support of parents who so frequently have the option to choose where their children will attend school. Courts, of course, should confront discrimination wherever it is found to exist. But they should recognize limitations on judicial action inherent in our system and also the limits of effective judicial power. The primary and continuing responsibility for public education, including the bringing about and maintaining of desired diversity, must be left with school officials and public authorities.
85
Mr. Justice REHNQUIST, with whom Mr. Justice POWELL joins, dissenting.
86
The school desegregation remedy imposed on the Columbus school system by this Court's affirmance of the Court of Appeals is as complete and dramatic a displacement of local authority by the federal judiciary as is possible in our federal system. Pursuant to the District Court's order, 42,000 of the system's 96,000 students are reassigned to new schools. There are like reassignment of teachers, staff, and administrators, reorganization of the grade structure of virtually every elementary school in the system, the closing of 33 schools, and the additional transportation of 37,000 students.
87
It is difficult to conceive of a more serious supplantation because, as this Court recognized in Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) (Brown I ), "education is perhaps the most important function of state and local governments"; indeed, it is "a vital national tradition." Dayton Board of Education v. Brinkman, 433 U.S. 406, 410, 97 S.Ct. 2766, 2770, 53 L.Ed.2d 851 (1977) (Dayton I ); see Milliken v. Bradley, 418 U.S. 717, 741-742, 94 S.Ct. 3112, 3125-3126, 41 L.Ed.2d 1069 (1974); Wright v. Council of City of Emporia, 407 U.S. 451, 469, 92 S.Ct. 2196, 2206, 33 L.Ed.2d 51 (1972). That "local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process," Milliken, supra, does not, of course, place the school system beyond the authority of federal courts as guardians of federal constitutional rights. But the practical and historical importance of the tradition does require that the existence of violations of constitutional rights be carefully and clearly defined before a federal court invades the traditional ambit of local control, and that the subsequent displacement of local authority be limited to that necessary to correct the identified violations. "It is for this reason that the case for displacement of the local authorities by a federal court in a school desegregation case must be satisfactorily established by factual proof and justified by a reasoned statement of legal principles." Dayton I, supra, 433 U.S., at 410, 97 S.Ct., at 2770.
88
I think the District Court and Court of Appeals in this case did not heed this admonition. One can search their opinions in vain for any concrete notion of what a "systemwide violation" consists of or how a trial judge is to go about determining whether such a violation exists or has existed. What logic is evident emasculates the key determinants set down in Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), for proving the existence and scope of a violation warranting federal court-intervention: discriminatory purpose and a causal relationship between acts motivated by such a purpose and a current condition of segregation in the school system. The lower courts' methodology would all but eliminate the distinction between de facto and de jure segregation and render all school systems captives of a remote and ambiguous past.
89
Today the Court affirms the Court of Appeals for the Sixth Circuit in this case and Dayton Board of Education v. Brinkman (Dayton II ), 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720, in opinions so Delphic that lower courts will be hard pressed to fathom their implications for school desegregation litigation. I can only offer two suggestions. The first is that the Court, possibly chastened by the complexity and emotion that accompanies school desegregation cases, wishes to relegate the determination of a violation of the Equal Protection Clause of the Fourteenth Amendment in any plan of pupil assignment, and the formulation of a remedy for its violation, to the judgment of a single district judge. That judgment should be subject to review under the "clearly erroneous" standard by the appropriate court of appeals, in much the same way that actions for an accounting between private partners in a retail shoe business or claimants in an equitable receivership of a failing commercial enterprise are handled. "Discriminatory purpose" and "systemwide violation" are to be treated as talismanic phrases which, once invoked, warrant only the most superficial scrutiny by appellate courts.
90
Such an approach is, however, obviously inconsistent with the Dayton I admonition and disparages both this Court's oft-expressed concern for the important role of local autonomy in educational matters and the significance of the constitutional rights involved. It also holds out the disturbing prospect of very different remedies being imposed on similar school systems because of the predilections of individual judges and their good-faith but incongruent efforts to make sense of this Court's confused pronouncements today.1 Concepts such as "discriminatory purpose" and "systemwide violation" present highly mixed questions of law and fact. If district court discretion is not channelized by a clearly articulated methodology, the entire federal-court system will experience the disaffection which accompanies violation of Cicero's maxim not to "lay down one rule in Athens and another rule in Rome."
91
Yet, the only alternative reading of today's opinions, i. e., a literal reading, is even more disquieting. Such a reading would require embracing a novel analytical approach to school segregation in systems without a history of statutorily mandated separation of the races—an approach that would have dramatic consequences for urban school systems in this country. Perhaps the adjective "analytical" is out of place, since the Court's opinions furnish only the most superficial methodology, a framework which if it were to be adopted ought to be examined in a far more thorough and critical manner than is done by the Court's "lick and a promise" opinions today. Given the similar approaches employed by the Court in this case and Dayton II, this case suffices for stating what I think are the glaring deficiencies both in the Court's new framework and in its decision to subject the Columbus school system to the District Court's sweeping racial balance remedy.
92
* The Court suggests a radical new approach to desegregation cases in systems without a history of statutorily mandated separation of the races: if a district court concludes—employing what in honesty must be characterized as an irrebuttable presumption—that there was a "dual" school system at the time of Brown I, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), it must find post-1954 constitutional violations in a school board's failure to take every affirmative step to integrate the system. Put differently, racial imbalance at the time the complaint is filed is sufficient to support a systemwide, racial balance, school busing remedy if the district court can find some evidence of discriminatory purpose prior to 1954, without any inquiry into the causal relationship between those pre-1954 violations and current segregation in the school system.
93
This logic permeates the findings of the District Court and Court of Appeals, and the latter put it most bluntly.
94
"[T]he District Judge on review of pre-1954 history found that the Columbus schools were de jure segregated in 1954 and, hence, the Board had a continuing constitutional duty to desegregate the Columbus schools. The pupil assignment figures for 1975-76 demonstrate the District Judge's conclusion that this burden has not been carried. On this basis alone (if there were no other proofs), we believe we would be required to affirm the District Judge's finding of present unconstitutional segregation." 583 F.2d 787, 800 (CA 6 1978).
95
In Brinkman v. Gilligan, 583 F.2d 243, 256 (CA 6 1978), also affirmed today, this post-1954 "affirmative duty" is characterized as a duty "to diffuse black and white students" throughout the system.
96
The Court in this case apparently endorses that view. For the Court finds that "[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment," ante, at 459, and the mere fact that at the time of suit "most blacks were still going to black schools and most whites to white schools" establishes current effect. Ante, at 2948.
97
In order to fully comprehend the dramatic reorientation the Court's opinion thus implies, and its lack of any principled basis, a brief historical review is necessary. In 1954, this Court announced Brown I and struck down on equal protection grounds laws requiring or permitting school assignment of children on the basis of race. See also Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The question of remedy was reserved for a new round of briefing, and the following Term this Court remanded to the District Courts in the five consolidated cases "to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases." Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 757, 99 L.Ed. 1083 (1955) (Brown II ).
98
The majority concedes that this case does not involve racial assignment of students mandated by state law; Ohio abandoned any "statutory requirement or authorization to operate segregated schools" by 1888. Ante, at 455. Yet, it was precisely this type of segregation—segregation expressly mandated or permitted by state statute or constitution—that was addressed by Brown I and the mandate of the Brown cases was that "[a]ll provisions of federal, state, or local law requiring or permitting such discrimination must yield" to "the fundamental principal that racial discrimination in public education is unconstitutional." 349 U.S., at 298, 75 S.Ct., at 755. The message of Brown II was simple and resonant because the violation was simple and pervasive.
99
There were, however, some issues upon which the Brown II Court was vague. It did not define what it meant by "effectuat[ing] a transition to a racially nondiscriminatory school system," id., at 301, 75 S.Ct., at 756, and therefore the next 17 years focused on the question of the appropriate remedy where racial separation had been maintained by operation of state law.
100
The earliest post-Brown school cases in this Court only intimated that "a transition to a racially nondiscriminatory school system" required adoption of a policy of nondiscriminatory admission.2 It was not until the 1967 Term that this Court indicated that school systems with a history of statutorily or constitutionally mandated separation of the races would have to do more than simply permit black students to attend white schools and vice versa. In that Term, the Court had before it "freedom-of-choice" plans put forward as desegregation remedies. The factual context of the lead case, Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), is a far cry from the complicated urban metropolitan system we confront today. The New Kent County school system consisted of two schools one black and one white—with a total enrollment of 1,300 pupils. At the time of suit a black student had never attended the white school or a white student the black school.
101
This Court found that the "freedom-of-choice" plan approved by the District Court for the desegregation of the New Kent County schools was inadequate. Noting that the "pattern of separate 'white' and 'Negro' schools in the New Kent County school system established under compulsion of state laws is precisely the pattern of segregation to which Brown I and Brown II were particularly addressed," the Court observed that Brown II charged "[s]chool boards such as the respondent then operating state-compelled dual systems . . . with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." 391 U.S., at 435, 437-438, 88 S.Ct., at 1694. In the three years following court approval of the freedom-of-choice plan in New Kent County, not a single white child had chosen to attend the historically black school, which continued to serve 85% of the county's black schoolchildren. The Green Court concluded that a freedom-of-choice plan, in a school system such as this and in the absence of other efforts at desegregation, was not sufficient to provide the remedy mandated by Brown II. The Court suggested zoning, i. e., some variation of a neighborhood school policy, as a possible alternative remedy.3
102
That brings the history of school desegregation litigation in this Court to THE CHIEF JUSTICE's opinion in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), upon which the majority and respondents heavily rely.4 Swann also addressed school systems with a history of statutorily or constitutionally mandated separation of the races; "[t]hat was what Brown v. Board of Education was all about." Id., at 6, 91 S.Ct., at 1271. Swann was an attempt to define "in more precise terms" the appropriate scope of the remedy in cases of that nature. Ibid. It simply did not attempt to articulate the manner by which courts were to determine the existence of a violation in school systems without a history of segregation imposed by statute or the state constitution.5 Certainly school systems with such a history were charged by Brown II to "effectuate a transition to a racially nondiscriminatory school system." But Swann did not speak of the failure to conform to this duty as a "continuing violation." The specific references to an affirmative duty in Swann were to the duty of a school board found to have overseen a school system with state-imposed segregation to put forward a plan to remedy that situation. It was in this context that the Court observed that upon "default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system." 402 U.S., at 166, 91 S.Ct., at 1276.
103
This understanding of the "affirmative duty" was acknowledged in the first case confronting a school system without a history of state-mandated racial assignment, Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). There the Court observed:
104
"[W]e have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I ), the State automatically assumes an affirmative duty 'to effectuate a transition to a racially nondiscriminatory school system,' Brown v. Board of Education, 349 U.S.
105
294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II ), see also Green v. County School Board, 391 U.S. 430, 437-438, 88 S.Ct. 1689, 1693-1694, 20 L.Ed.2d 716 (1968), that is, to eliminate from the public schools within their school system 'all vestiges of state-imposed segregation.' Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971).
106
"This is not a case, however, where a statutory dual system has ever existed." Id., at 200-201, 93 S.Ct., at 2693-94 (footnote omitted).
107
It was at this juncture that the Court articulated the proposition that has become associated with Keyes.
108
"Nevertheless, where plaintiffs prove that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system." Id., at 201, 93 S.Ct., at 2694.
109
The notion of an "affirmative duty" as acknowledged in Keyes is a remedial concept defining the obligation on the school board to come forward with an effective desegregation plan after a finding of a dual system. This could not be clearer in Keyes itself.
110
"[P]roof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system. Of course, where that finding is made, as in cases involving statutory dual systems, the school authorities have an affirmative duty 'to effectuate a transition to a racially nondiscriminatory school system.' Brown II, supra, 349 U.S., at 301, 75 S.Ct., at 756." Id., at 203, 93 S.Ct., at 2695.7
111
Indeed, Keyes did not discuss the complexion of the Denver school system in 1954 or in any other way intimate the analysis adopted by the Court today.8 Rather, it emphasized that the relevance of past actions was determined by their causal relationship to current racially imbalanced conditions.
112
Even so brief a history of our school desegregation jurisprudence sheds light on more than one point. As a matter of history, case law, or logic, there is nothing to support the novel proposition that the primary inquiry in school desegregation cases involving systems without a history of statutorily mandated racial assignment is what happened in those systems before 1954. As a matter of history, 1954 makes no more sense as a benchmark—indeed it makes less sense—than 1968, 1971, or 1973. Perhaps the latter year has the most to commend it, if one insists on a benchmark, because in Keyes this Court first confronted the problem of school segregation in the context of systems without a history of statutorily mandated segregation of the races.
113
As a matter of logic, the majority's decision to turn the year 1954 into a constitutional Rubicon also fails. The analytical underpinnings of the concept of discriminatory purpose have received their still incomplete articulation in the 1970's. It is sophistry to suggest that a school board in Columbus in 1954 could have read Brown I and gleaned from it a constitutional duty "to diffuse black students throughout the . . . system" or take whatever other action the Court today thinks it should have taken. And not only was the school board to anticipate the state of the law 20 years hence, but also to have a full appreciation for discrete acts or omissions of school boards 20 to 50 years earlier.9
114
Of course, there are always instances where constitutional standards evolve and parties are charged with conforming to the new standards. But I am unaware of a case where the failure to anticipate a change in the law and take remedial steps is labeled an independent constitutional violation. The difference is not simply one of characterization: the Court's decision today enunciates, without analysis or explanation, a new methodology that dramatically departs from Keyes by relieving school desegregation plaintiffs from any showing of a causal nexus between intentional segregative actions and the conditions they seek to remedy.
115
Causality plays a central role in Keyes as it does in all equal protection analysis. The Keyes Court held that before the burden of production shifts to the school board, the plaintiffs must prove "that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system." 413 U.S., at 201, 93 S.Ct., at 2694 (emphasis added). The Court recognized that a trial court might find "that a lesser degree of segregated schooling . . . would not have resulted even if the Board had not acted as it did," and "that at some point in time the relationship between past segregative acts and present segregation may become so attenuated as to be incapable of supporting a finding of de jure segregation warranting judicial intervention." Id., at 211, 93 S.Ct., at 2699. The relevance of past acts of the school board was to depend on whether "segregation resulting from those actions continues to exist." Id., at 210, 93 S.Ct., at 2698.10 That inquiry is not central under the approach approved by the Court today. Henceforth, the question is apparently whether pre-1954 acts contributed in some unspecified manner to segregated conditions that existed in 1954. If the answer is "Yes," then the only question is whether the school board has exploited all integrative opportunities that presented themselves in the subsequent 25 years. If not, a systemwide remedy is in order, despite the plaintiff's failure to demonstrate a link between those past acts and current racial imbalance.
116
The Court's use of the term "affirmative duty" implies that integration be the pre-eminent—indeed, the controlling—educational consideration in school board decisionmaking. It takes precedence over other legitimate educational objectives subject to some vague feasibility limitation. That implication is dramatically demonstrated in this case. Both lower courts necessarily gave special significance to the Columbus School Board's post-1954 school construction and siting policies as supporting the systemwide remedy in this case.11 They did not find—in fact, could not have found—that the siting and construction of schools were racially motivated. As the District Court observed:
117
"In 1950, pursuant to a request of the then Columbus school superintendent, the Bureau of Educational Research at The Ohio State University began a comprehensive, scientific and objective analysis of the school plant needs of the school system. The Bureau studied and reported on community growth characteristics, educational programs, enrollment projections, the system's plan of organization, the existing plant, and the financial ability of the community to pay for new school facilities. Thereafter, a number of general and specific recommendations were made to the Columbus Board by the Bureau. The recommendations included the size and location of new school sites as well as additions to existing sites. The recommendations were conceived to accommodate the so called 'community or neighborhood school concept.' The 1950 concept was related to a distance criteria grounded on walking distance to schools as follows: 3/4 mile for elementary, 11/2 miles for junior high and 2 miles for senior high students.
118
"The Board of Education adopted and relied upon the Bureau's recommendations in proposing and encouraging the passage of bond issues in 1951, 1953, 1956, 1959 and 1964. School construction of new facilities and additions to existing structures were accomplished in substantial conformity with the Bureau's periodic studies and recommendations." 429 F.Supp. 229, 237-238 (SD Ohio 1977).
119
Thus, the Columbus Board of Education employed the most objective criteria possible in the placement of new schools.
120
Nevertheless, the District Court and Court of Appeals found that conformity with these recommendations was a violation of the Equal Protection Clause because "in some instances the need for school facilities could have been met in a manner having an integrative rather than a segregative effect." Id., at 243.12 By endorsing this logic, the Court, as a result of its finding of an affirmative duty, employs remedy standards to determine the existence of post-1954 violations in school construction and ignores the previously pivotal role of discriminatory purpose.13
121
This unprecedented "affirmative duty" superstructure sits atop a weak foundation—the existence of a "dual" school system in 1954. This finding was predicated on the presence of four predominantly black elementary schools and one predominantly black junior high school on the "near east side of Columbus," a then and now black residential area. The Columbus School Board at that time employed, as it does now, a neighborhood school policy. The specific Board actions that the District Court cited were racial assignment of teachers and gerrymandering along part of the border between two school districts.14 The Court concludes that these violations involved a substantial part of the Columbus school system in 1954, and invokes Keyes for the proposition that the finding of a dual school system follows "absent sufficient contrary proof by the Board, which was not forthcoming in this case." Ante, at 458.
122
There are two major difficulties with this use of Keyes. First, without any explanation, the Court for the first time applies it to define the character of a school system remote in time—here 25 or more years ago—without any examination of the justifications for the Keyes burden-shifting principles when those principles are used in this fashion. Their use is a matter of " 'policy and fairness,' " 413 U.S., at 209, 93 S.Ct., at 2698 (quoting 9 J. Wigmore, Evidence § 2486, p. 275 (3d ed. 1940)), and I think the Keyes "presumption" scores poorly on both counts when focused on a period beyond memory and often beyond records.15 What records are available are equally available to both sides. In this case the District Court relied almost exclusively on instances that occurred between 1909 and 1943: undoubtedly beyond the period when many Board members had their experiences with the system as students, let alone as administrators. It is much more difficult for school board authorities to piece together the influences that shaped the racial composition of a district 20, 30, or 40 years ago. The evidence on both sides becomes increasingly anecdotal. Yet the consequences of the School Board's inability to make such a showing only become more dramatic. Here violations with respect to 5 schools, only 3 of which exist today, occurring over 30 years ago are the key premise for a systemwide racial balance remedy involving 172 schools—most of which did not exist in 1950.16
123
My second concern about the Court's use of the Keyes presumption may render my first concern academic. For as I suggest in Part III below, the Court today endorses views regarding the neighborhood school policy and racially identifiable neighborhoods that essentially make the Keyes presumption irrebuttable.
II
124
The departure from established doctrines of causation and discriminatory purpose does not end with the lower courts' preoccupation with an "affirmative duty" exhumed from the conduct of past generations to be imposed on the present without regard to the forces that actually shaped the current racial imbalance in the school system. It is also evident in their examination of post-1954 violations, which the Court refers to as "the intentionally segregative use of optional attendance zones, discontiguous attendance areas, and boundary changes." Ante, at 461-462 (footnotes omitted).
125
As a preliminary matter, I note that the Court of Appeals observed, I think correctly, that these post-1954 incidents "can properly be classified as isolated in the sense that they do not form any systemwide pattern." 583 F.2d, at 805. All the incidents cited, let alone those that can meet a properly applied segregative intent standard, could not serve as the basis for a systemwide racial balance remedy.
126
In Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), we have emphasized that discriminatory purpose as a motivating factor in governmental action is a critical component of an equal protection violation. Like causation analysis, the discriminatory-purpose requirement sensibly seeks to limit court intervention to the rectification of conditions that offend the Constitution—stigma and other harm inflicted by racially motivated governmental action and prevent unwarranted encroachment on the autonomy of local governments and private individuals which could well result from a less structured approach.
127
This Court has not precisely defined the manner in which discriminatory purpose is to be proved. Indeed, in light of the varied circumstances in which it might be at issue, simple and precise rules for proving discriminatory purpose could not be drafted. The focus of the inquiry in a case such as this, however, is not very difficult to articulate: Is a desire to separate the races among the reasons for a school board's decision or particular course of action? The burden of proof on this issue is on the plaintiffs. Washington v. Davis, supra, 426 U.S., at 244-245, 96 S.Ct., at 2049-2050; Arlington Heights v. Metropolitan Housing Dev. Corp., supra, 429 U.S., at 270, 97 S.Ct., at 566.
128
The best evidence on this score would be a contemporaneous explanation of its action by the school board, or other less dramatic evidence of the board's actual purpose, which indicated that one objective was to separate the races. See Arlington Heights, supra, at 268, 97 S.Ct., at 565. Objective evidence is also probative. Indeed, were it not, this case would warrant very little discussion, for all the evidence relied on by the courts below was of an "objective" nature.
129
But objective evidence must be carefully analyzed for it may otherwise reduce the "discriminatory purpose" requirement to a "discriminatory impact" test by another name. Private and governmental conduct in matters of general importance to the community is notoriously ambiguous, and for objective evidence to carry the day it must be a reliable index of actual motivation for a governmental decision—at least sufficient to meet the plaintiff's burden of proof on purpose or intent. We have only recently emphasized:
130
" 'Discriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of Massachusetts v. Feeney, supra, 443 U.S., at 279, 99 S.Ct., at 2296.
131
The maintenance of this distinction is important: both to limit federal courts to their constitutional missions and to afford school boards the latitude to make good-faith, colorblind decisions about how best to realize legitimate educational objectives without extensive post hoc inquiries into whether integration would have been better served—even at the price of other educational objectives—by another decision: a different school site, a different boundary, or a different organizational structure. In a school system with racially imbalanced schools, every school board action regarding construction, pupil assignment, transportation, annexation, and temporary facilities will promote integration, aggravate segregation, or maintain segregation. Foreseeability follows from the obviousness of that proposition. Such a tight noose on school board decisionmaking will invariably move government of a school system from the townhall to the courthouse.
132
The District Court in this case held that it was bound by the standard for segregative intent articulated by the Court of Appeals for the Sixth Circuit in Oliver v. Michigan State Board of Education, 508 F.2d 178, 182 (1974):
133
"A presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials' action or inaction was an increase or perpetuation of public school segregation.
134
The presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies." 429 F.Supp., at 254 n. 3.
135
This is precisely the type of "impact" trigger for shifting the burden of proof on the intent component of an equal protection violation that we rejected in Washington v. Davis, supra. There the Court of Appeals had applied the standards of Title VII to determine whether a qualifying test for police candidates discriminated against blacks in violation of the Equal Protection Clause. According to the Court of Appeals, the plaintiffs were initially required to show disproportionate impact on blacks.17 That impact was a constitutional violation absent proof by the defendants that the test was "an adequate measure of job performance in addition to being an indicator of probable success in the training program." 426 U.S., at 237, 96 S.Ct., at 2046. Put differently, the defendants were to show that the test was the product of a racially neutral policy. This Court reversed, rejecting "the view that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation." Id., at 245, 96 S.Ct., at 2050.
136
Indeed, reflection indicates that the District Court's test for segregative intent in this case is logically nothing more than the affirmative duty stated a different way. Under the test, a "presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials' . . . inaction was . . . perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively establish that their . . . inaction was a consistent and resolute application of racially neutral policies." If that standard were to be applied to the average urban school system in the United States, the implications are obvious. Virtually every urban area in this country has racially and ethnically identifiable neighborhoods, doubtless resulting from a melange of past happenings prompted by economic considerations, private discrimination, discriminatory school assignments, or a desire to reside near people of one's own race or ethnic background. See Austin Independent School Dist. v. United States, 429 U.S. 990, 994, 97 S.Ct. 517, 519, 50 L.Ed.2d 603 (1976) (POWELL, J., concurring). It is likewise true that the most prevalent pupil assignment policy in urban areas is the neighborhood school policy. It follows inexorably that urban areas have a large number of racially identifiable schools.
137
Certainly "public officials' . . . inaction . . . perpetuat[es] . . . public school segregation" in this context. School authorities could move to pairing, magnet schools, or any other device to integrate the races. The failure to do so is a violation under Oliver unless the "inaction was a consistent and resolute application of racially neutral policies." The policy that most school boards will rely on at trial, and the policy which the Columbus School Board in fact did rely on, is the neighborhood school policy. According to the District Court in this case, however, not only is that policy not a defense, but in combination with racially segregated housing patterns, it is itself a factor from which one can infer segregative intent and a factor in this case from which the District Court did infer segregative intent, stating that "[t]hose who rely on it as a defense to unlawful school segregation fail to recognize the high priority of the constitutional right involved." 429 F.Supp., at 258.
138
But the Constitution does not command that school boards not under an affirmative duty to desegregate follow a policy of "integration uber alles." If the Court today endorses that view, and unfortunately one cannot be sure, it has wrought one of the most dramatic results in the history of public education and the Constitution. A duty not to discriminate in the school board's own actions is converted into a duty to ameliorate or compensate for the discriminatory conduct of other entities and persons.
139
I reserve judgment only because the Court at points in its opinion seems of the view that the District Court applied a test other than the Oliver test for segregative intent, despite the District Court's clear indication to the contrary. 429 F.Supp., at 253-254, n. 3. In fact, in Dayton II, 443 U.S., at 536, n. 9, 99 S.Ct., at 2978, n. 9, the Court expressly rejects the Oliver test, and in its opinion in this case, ante, at 464-465, indicates that the District Court treated foreseeable effects as only another bit of evidence and finds that not incompatible with this Court's prior cases.
140
"Those cases do not forbid 'the foreseeable effects standard from being utilized as one of the several kinds of proofs from which an inference of segregative intent may be properly drawn.' [429 F.Supp.], at 255. Adherence to a particular policy or practice, 'with full knowledge of the predictable effects of such adherence upon racial imbalance in a school system is one factor among many others which may be considered by a court in determining whether an inference of segregative intent should be drawn.' Ibid."
141
I have no difficulty with the proposition that foreseeable effects are permissible considerations "as one of the several kinds of proofs" as long as they are not the only type of proof. Use of foreseeable effects in the latter fashion would be clearly inconsistent with Davis, Arlington Heights, and Feeney. But I do have great difficulty with this Court's taking the above quotations from the District Court out of context and thereby imputing a general test for discriminatory purpose to the District Court from a passage which in fact was part of a discussion of the probativeness of a very special kind of evidence on intent: a neighborhood school policy simpliciter.18 As far as gauging the purpose underlying specific actions is concerned, it is quite clear from its expression and application of the relevant test for intent, that the District Court looked for foreseeability per se.19
142
As such, the District Court's treatment of specific post-1954 conduct reflects the same cavalier approach to causality and purpose that underlies the 1954 affirmative duty. That determination requires no more "omnipotence and omniscience," ante, at 457, n. 6, than similar determinations in Dayton I, Davis, and Arlington Heights. The court found violations with respect to three optional attendance zones. The Near-Bexley zone, the only zone discussed by this Court, afforded students the option to attend schools in either one of two bordering districts. The District Court found that the zone gave white students of Bexley the opportunity to avoid attending the predominantly black schools to the east. I do not think that the District Court finding can be said to be clearly erroneous despite the lack of any direct evidence on discriminatory purpose, for the School Board did not suggest any educational justification for this zone and none is apparent. But as that court recognized, the zone is of little significance as far as the current state of segregation in the school system is concerned. "The July 10, 1972, minutes of the State Board of Education . . . appear to indicate that in 1972, there were 25 public elementary school students and two public high school students residing in the optional zone." 429 F.Supp., at 245 (emphasis added). As of 1975, the zone has been dismantled, and the District Court clearly suggests that it does not have any current effect on the Columbus school system.20
143
Two other optional attendance zones were identified as offensive.sS One existed for two years between 1955 and 1957, and permitted students in a predominantly white neighborhood to attend the "white" West Broad Elementary School rather than the predominantly black Highland School. Like the Near-Bexley option, there is no apparent educational justification and, therefore, no grounds to upset the District Court's finding of a violation. This optional zone afforded the District Court an excellent opportunity to probe the effects of a past violation, because in 1957 the optional zone was made a permanent part of the West Broad district. But the District Court made no findings as to the current effect of the past violation nor saw fit to hypothesize how many students might have been affected. It was clearly of the opinion that no such inquiry was necessary.
144
The final optional attendance zone demonstrates the influence of the "affirmative duty"—whether the 1954 variety or that which follows from Oliver. This optional zone was also created in 1955 in roughly the same part of Columbus. It gave some students within Highland's boundaries the option of attending the neighboring West Mound Street Elementary School. Again, the District Court found, this permitted transfer to a "whiter" school. But the District Court also found that there was a legitimate educational objective for creation of the zone: Highland was overcrowded and West Mound was under capacity. The District Court, however, concluded that the School Board's actions were objectionable because "feasible alternatives" were available; that is, other optional attendance zones could have been drawn which would have had "an integrative effect on West Mound." This again suggests a duty on the School Board to select the most integrative alternative.
145
The second set of post-1954 actions faulted by the District Court were two discontiguous attendance areas. These were situations where students in a defined geographical area were assigned to a school in a zone not contiguous with their neighborhood. One zone was established in 1963 and involved about 70 students. The School Board unsuccessfully argued at trial that the children were sent to the predominantly white Moler Elementary School because the nearest school the predominantly black Alum Crest Elementary, had no room for them. The District Court indicates that this violative condition existed until 1969, presumably because after that date the discontiguous area had a substantial black population and an integrative effect on the Moler Elementary School. Since the discontiguous area now has an integrative effect, one might ask what is its current segregative effect on the school system? Ironically, under the District Court's reasoning, it would be a violation for the Columbus School Board to now disband the Moler Elementary discontiguous attendance area.
146
The second discontiguous zone existed from 1957 to 1963 and permitted students on three streets within the Heimandale Elementary District to attend the "whiter" Fornof Elementary School. The Columbus School Board "inherited" this discontiguous attendance arrangement when it annexed the Marion-Franklin District in 1957. Both schools at that time were at or over capacity and when a six-classroom addition was made to Heimandale in 1963, the discontiguous zone was terminated and the children assigned to Heimandale. According to the HEW Civil Rights Survey, Heimandale today is a racially balanced school. App. 747. The District Court made no findings as to the current effect of the Board's 5-year retention of the Heimandale-Fornof arrangement.
147
The last discrete violation discussed by the District Court involved the Innis-Cassady alternative organizational proposals. These proposals involved an area of the Columbus school district that was annexed in 1971. The area had one school, the Cassady Elementary School, which was very overcrowded, and placing another school in the district was a priority for the Columbus School Board in 1972. The District Court did not fault the site chosen for the second school in the old Mifflin District. However, it inferred segregative intent in the School Board's decision to use a K-6 organization in both schools, rather than using K-3 organization in one school and 4-6 organization in the other and thereby drawing students from throughout the district. The District Court found that the latter would have been the more integrative alternative because of residential segregation in the district. At trial, the School Board attempted to justify its choice by pointing out that the pairing alternative would have required substantial transportation and a deviation from the standard K-6 organization employed throughout the Columbus school system. The court found "no evidence in this record" that pairing would have necessitated "substantial transportation" and that the Board had on prior occasions used a K-3 structure—apparently a reference to the K-3 primary center for crippled children.21
148
Thus, the Innis-Cassady discussion evinces this same affirmative duty to select the more integrative alternative and a consequent shift of the burden of proof to the School Board to prove that the segregative choice was mandated by other legitimate educational concerns. But under Washington v. Davis, and Arlington Heights the burden is on the plaintiffs to show impact and purpose, and in a situation where there is "no evidence" in the record to prove or disprove a proffered justification for a school board decision, the plaintiffs have failed to establish a violation of their constitutional rights.
149
Secondly, the fact that a school board has once or twice or three times in the past deviated from a policy does not impugn that policy as a justification for a school board decision. There is no constitutional requirement of perfect consistency. Arlington Heights, 429 U.S., at 269, 97 S.Ct., at 565. The fact that the Columbus School Board currently maintains a K-3 organization for crippled children hardly diminishes the Board's interest in maintaining a standard organizational structure for traditional schools throughout the school district.22 Rather, in Arlington Heights we spoke of substantivedepartures from existing policy as casting light on discriminatory purpose, "particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached." Id., at 267, 97 S.Ct., at 564, 565.
150
Thus, it is clear that with respect to a number of the post-1954 actions that the District Court found to be independent violations, foreseeability was not one kind of evidence, but the whole ball game—whether the District Court thought that result dictated by the Oliver test or the post-1954 "affirmative duty" purportedly imposed as a result of pre-1954 conduct. Those findings that could be supported by the concept of discriminatory purpose propounded in Davis and Arlington Heights were not accompanied by any effort to link those violations with current conditions of segregation in the school system. In sum, it is somewhat misleading for the Court to refer to these actions as in some sense independent of the constitutional duty it suggests that the Columbus Board assumed in 1954. And, in any event, the small number of students involved in these instances could not independently support the sweeping racial balance remedy imposed by the District Court. Cf. Dayton I, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977).
III
151
The casualness with which the District Court and Court of Appeals assumed that past actions of the Board had a continuing effect on the school system, and the facility and doctrinal confusion with which they went from these actions to announce a "systemwide violation" undermine the basic limitations on the federal courts' authority. If those violations are not the product of a careful inquiry of the impact on the current school system, if they are reaction to taint or atmosphere rather than identifiable conditions that would not exist now "but for" the constitutional violation, there are effectively no limits on the ability of federal courts to supplant local authority. Only two Terms ago, in Dayton I, supra, at 420, 97 S.Ct., at 2775, we set out the basic line of inquiry that should govern school desegregation litigation:
152
"The duty of both the District Court and the Court of Appeals in a case such as this, where mandatory segregation by law of the races in the schools has long since ceased, is to first determine whether there was any action in the conduct of the business of the school board which was intended to, and did in fact, discriminate against minority pupils, teachers, or staff. Washington v. Davis, supra. All parties should be free to introduce such additional testimony and other evidence as the District Court may deem appropriate. If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy. Keyes, supra, 413 U.S., at 213, 93 S.Ct., at 2699."
153
See also School Dist. of Omaha v. United States, 433 U.S. 667, 97 S.Ct. 2905, 53 L.Ed.2d 1039 (1977); Brennan v. Armstrong, 433 U.S. 672, 97 S.Ct. 2907, 53 L.Ed.2d 1044 (1977).
154
The District Court made no attempt to determine the incremental segregative effects of identified violations; given the absence of causality considerations in the court's findings, it was simply not in a position to do so.23 To distinguish Dayton , the majority relies on the District Court's conclusion that its "finding of liability in this case concerns the Columbus school district as a whole." 429 F.Supp., at 266. But incantation is not a substitute for analysis and the District Court's findings and analysis do not support its conclusion.
155
But the majority's opinion takes on its most delusive air when the Court suggests that the scope of the remedy is the Board's own fault.
156
"[T]he Board was given ample opportunity to counter the evidence of segregative purpose and current, systemwide impact, and the findings of the courts below were against it in both respects." Ante, at 468.
157
Specifically, the Court is alluding to the Board's purported failure to show that the violation was not systemwide under Keyes or that a more limited remedy should have been applied under Swann. In fact, the logic of the District Court, apparently endorsed by the Court today, turns the Swann and Keyes showings into chimeras.
158
Once a showing is made that the District Court believes satisfies the Keyes requirement of purposeful discrimination in a substantial part of the school system, the School Board will almost invariably rely on its neighborhood school policy and residential segregation to show that it is not responsible for the existence of certain predominantly black and white schools in other parts of the school system. Under the District Court's reasoning, as I have noted, not only is that evidence not probative on the Board's lack of responsibility, it itself supports an inference of a constitutional violation. In addition, the District Court relied on a general proposition that "there is often a substantial reciprocal effect between the color of the school and the color of the neighborhood it serves" to block any inquiry into whether racially identifiable schools were the product of racially identifiable neighborhoods or whether past discriminatory acts bore a "but for" relationship to current segregative conditions.24
159
"It is not now possible to isolate these factors and draw a picture of what Columbus schools or housing would have looked like today without the other's influence. I do not believe that such an attempt is required.
160
"I do not suggest that any reasonable action by the school authorities could have fully cured the evils of residential segregation. The Court could not and would not impose such a duty upon the defendants. I do believe, however, that the Columbus defendants could and should have acted to break the segregative snowball created by their interaction with housing. That is, they could and should have acted with an integrative rather than a segregative influence upon housing; they could and should have been cautious concerning the segregation influences that are exerted upon the schools by housing. They certainly should not have aggravated racial imbalance in the schools by their official actions." 429 F.Supp., at 259 (emphasis added).
161
But, as the District Court recognized, other factors play an important role in determining segregated residential patterns.
162
"Housing segregation has been caused in part by federal agencies which deal with financing of housing, local housing authorities, financing institutions, developers, landlords, personal preferences of blacks and whites, real estate brokers and sales persons, restrictive covenants, zoning and annexation, and income of blacks as compared to whites." Ibid.
163
The Swann Court cautioned that "[t]he elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage." 402 U.S., at 22, 91 S.Ct., at 1279. Yet today the School Board is called to task for all the forces beyond its control that shaped residential segregation in Columbus. There is thus no room for Keyes or Swann rebuttal either with respect to the school system today or that of 30 years ago.
IV
164
I do not suggest that the inquiry required by Dayton I and Keyes is a simple one, and reviewing courts must defer to the findings of district court judges. But appellate courts also must ensure that these judges are asking themselves the right questions: it is clear in the instant case that critical questions regarding causality and purpose were not asked at all. The city of Columbus has changed enormously in the last 25 years and with it the racial character of many neighborhoods. Incidents related here may have been paved over by years of private choice as well as undesirable influences beyond the control of school authorities, influences such as poverty and housing discrimination, both public and private. Expert testimony should play an important role in putting together the demographic history of a city and the role of a school board in it. I do not question that there were constitutional violations on the part of the Columbus School Board in the past, but there are no deterrence or retribution components of the rationale for a school desegregation remedy. The fundamental mission of such remedies is to restore those integrated educational opportunities that would now exist but for purposefully discriminatory school board conduct. Because critically important questions were neither asked nor answered by the lower courts, the record before us simply cannot inform as to whether so sweeping a remedy as that imposed is justified.
165
At the beginning of this dissent, far too many pages ago, I suggested that the Court's opinion may only communicate a "hands-off" attitude in school desegregation cases and that my concerns should therefore be institutional rather than doctrinal. School desegregation cases, however, will certainly be with this Court as long as any of its current Members, and I doubt the Court can for long, like Pilate, wash its hands of disparate results in cases throughout the country.
166
It is most unfortunate that the Court chooses not to speak clearly today. Dayton I and Keyes are not overruled, yet their essential messages are ignored. The Court does not intimate that it has fathomed the full implications of the analysis it has sanctioned—an approach that would certainly make school desegregation litigation a "loaded game board," Swann, 402 U.S., at 28, 91 S.Ct., at 1282, but one at which a school board could never win. A school system's only hope of avoiding a judicial receivership would be a voluntary dismantling of its neighborhood school program. If that is the Court's intent today, it had indeed accepted the role of Judge Learned Hand's feared "Platonic Guardians,"25 and intellectual integrity—if not the Constitution or the interests of our beleaguered urban school systems and their students of all races—would be better served by discarding the pretextual distinction between de facto and de jure segregation. Whether the Court's result be reached by the approach of Pilate or Plato, I cannot subscribe to it.
1
A similar group of plaintiffs was allowed to intervene, and the original plaintiffs were allowed to file an amended complaint that was certified as a class action. 429 F.Supp. 229, 233-234 (SD Ohio 1977); App. 50.
2
The Court of Appeals vacated the judgment against the state defendants and remanded for further proceedings regarding those parties. 583 F.2d 787, 815-818 (CA6 1978). No issue with respect to the state defendants is before us now.
3
Petitioners also argue that the District Court erred in requiring that every school in the system be brought roughly within proportionate racial balance. We see no misuse of mathematical ratios under our decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22-25, 91 S.Ct. 1267, 1279-1281, 28 L.Ed.2d 554 (1971), especially in light of the Board's failure to justify the continued existence of "some schools that are all or predominantly of one race . . . ." Id., at 26, 91 S.Ct., at 1281; see App. to Pet. for Cert. 102-103. Petitioners do not otherwise question the remedy if a systemwide violation was properly found.
4
In 1871, pursuant to the requirements of state law, Columbus maintained a complete separation of the races in the public schools. 429 F.Supp., at 234-235. The Ohio Supreme Court ruled in 1888 that state law no longer required or permitted the segregation of schoolchildren. Board of Education v. State, 45 Ohio St. 555, 16 N.E. 373. Even prior to that, in 1881, the Columbus Board abolished its separate schools for black and white students, but by the end of the first decade of this century it had returned to a segregated school policy. Champion Avenue School was built in 1909 in a predominantly black area and was completely staffed with black teachers. Other black schools were established as the black population grew. The Board gerrymandered attendance zones so that white students who lived near these schools were assigned to or could attend white schools, which often were further from their homes. By 1943, a total of five schools had almost exclusively black student bodies, and each was assigned an all-black faculty, often through all-white to all-black faculty transfers that occurred each time the Board came to consider a particular school as a black school. 429 F.Supp., at 234-236.
5
Both our dissenting Brethren and the separate concurrence of Mr. Justice STEWART put great weight on the absence of a statutory mandate or authorization to discriminate, but the Equal Protection Clause was aimed at all official actions, not just those of state legislatures. "[N]o agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of the laws . . . violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State." Ex parte Virginia, 100 U.S. 339, 347, 25 L.Ed. 676 (1880). Thus, in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), the discriminatory application of an ordinance fair on its face was found to be unconstitutional state action. Even actions of state agents that may be illegal under state law are attributable to the State. United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). Our decision in Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), plainly demonstrates in the educational context that there is no magical difference between segregated schools mandated by statute and those that result from local segregative acts and policies. The presence of a statute or ordinance commanding separation of the races would ease the plaintiff's problems of proof, but here the District Court found that the local officials, by their conduct and policies, had maintained a dual school system in violation of the Fourteenth Amendment. The Court of Appeals agreed, and we fail to see why there should be a lesser constitutional duty to eliminate that system than there would have been had the system been ordained by law.
6
The dissenters in this case claim a better grasp of the historical and ultimate facts than the two courts below had. But on the issue of whether there was a dual school system in Columbus, Ohio, in 1954, on the record before us we are much more impressed by the views of the judges who have lived with the case over the years. Also, our dissenting Brothers' suggestion that this Court should play a special oversight role in reviewing the factual determinations of the lower courts in school desegregation cases, post, at 491-492 (REHNQUIST, J., dissenting), asserts an omnipotence and omniscience that we do not have and should not claim.
7
It is argued that Dayton I, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977), implicitly overruled or limited those portions of Keyes and Swann approving, in certain circumstances, inferences of general, systemwide purpose and current, systemwide impact from evidence of discriminatory purpose that has resulted in substantial current segregation, and approving a systemwide remedy absent a showing by the defendant of what part of the current imbalance was not caused by the constitutional breach. Dayton I does not purport to disturb any aspect of Keyes and Swann ; indeed, it cites both cases with approval. On the facts found by the District Court and affirmed by the Court of Appeals at the time Dayton first came before us, there were only isolated instances of intentional segregation, which were insufficient to give rise to an inference of systemwide institutional purpose and which did not add up to a facially substantial systemwide impact. Dayton Board of Education v. Brinkman (Dayton II ), 443 U.S. 526, 531 and n. 5, 99 S.Ct. 2971, 2976 and n. 5, 61 L.Ed.2d 720.
8
Despite petitioners' avowedly strong preference for neighborhood schools, in times of residential racial transition the Board created optional attendance zones to allow white students to avoid predominantly black schools, which were often closer to the homes of the white pupils. For example, until well after the time the complaint was filed, petitioners allowed students in a "small, white enclave on Columbus' predominantly black near-east side . . . to escape attendance at black" schools. 429 F.Supp., at 244. The court could perceive no racially neutral reasons for this optional zone. Id., at 245. "Quite frankly, the Near-Bexley Option appears to this Court to be a classic example of a segregative device designed to permit white students to escape attendance at predominantly black schools." Ibid.
9
This technique was applied when neighborhood schools would have tended to desegregate the involved schools. In the 1960's, a group of white students were bused past their neighborhood school to a "whiter" school. The District Court could "discern no other explanation than a racial one for the existence of the Moler discontiguous attendance area for the period 1963 through 1969." Id., at 247. From 1957 until 1963, students living in a predominantly white area near Heimandale Elementary School attended a more remote, but identifiably white, school. Id., at 247-248.
10
Gerrymandering of boundary lines also continued after 1954. The District Court found, for instance, that for one area on the west side of the city containing three white schools and one black school the Board had altered the lines so that white residential areas were removed from the black school's zone and black students were contained within that zone. Id., at 245-247. The Court found that the segregative choice of lines was not justified "as a matter of academic administration" and "had a substantial and continuing segregative impact upon these four west side schools." Id., at 247.
Another example involved the former Mifflin district that had been absorbed into the Columbus district. The Board staff presented two alternative means of drawing necessary attendance zones: one that was desegregative and one that was segregative. The Board chose the segregative option, and the District Court was unpersuaded that it had any legitimate educational reasons for doing so. Id., at 248-250.
11
The District Court found that, of the 103 schools built by the Board between 1950 and 1975, 87 opened with racially identifiable student bodies and 71 remained that way at the time of trial. This result was reasonably foreseeable under the circumstances in light of the sites selected, and the Board was often specifically warned that it was, without apparent justification, choosing sites that would maintain or further segregation. Id., at 241-243. As the Court of Appeals noted:
"[T]his record actually requires no reliance upon inference, since, as indicated above, it contains repeated instances where the Columbus Board was warned of the segregative effect of proposed site choices, and was urged to consider alternatives which could have had an integrative effect. In these instances the Columbus Board chose the segregative sites. In this situation the District Judge was justified in relying in part on the history of the Columbus Board's site choices and construction program in finding deliberate and unconstitutional systemwide segregation." 583 F.2d, at 804.
12
Local community and civil rights groups, the "Ohio State University Advisory Commission on Problems Facing the Columbus Public Schools, and officials of the Ohio State Board of Education all called attention to the problem [of segregation] and made certain curative recommendations." 429 F.Supp., at 255. This was particularly important because the Columbus system grew rapidly in terms of geography and number of students, creating many crossroads where the Board could either turn toward segregation or away from it. See id., at 243. Specifically, for example, the University Commission in 1968 made certain recommendations that it thought not only would assist desegregation of the schools but also would encourage integrated residential patterns. Id., at 256. The Board itself came to similar conclusions about what could be done, but its response was "minimal." Ibid. See also id., at 264. Additionally, the Board refused to create a site-selection advisory group to assist in avoiding sites with a segregative effect, refused to ask state education officials to present plans for desegregating the Columbus public schools, and refused to apply for federal desegregation-assistance funds. Id., at 257; see id., at 239. The District Court drew "the inference of segregative intent from the Columbus defendants' failures, after notice, to consider predictable racial consequences of their acts and omissions when alternatives were available which would have eliminated or lessened racial imbalance." Id., at 240.
13
Petitioners have indicated that a few of the recent violations specifically discussed by the District Court involved so few students and lasted for such a short time that they are unlikely to have any current impact. But that contention says little or nothing about the incremental impact of systemwide practices extending over many years. Petitioners also argue that because many of the involved schools were in areas that had become predominantly black residential areas by the time of trial, the racial separation in the schools would have occurred even without the unlawful conduct of petitioners. But, as the District Court found, petitioners' evidence in this respect was insufficient to counter respondents' proof. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 271 n. 21, 97 S.Ct. 555, 566, 50 L.Ed.2d 450 (1977); Mt. Healthy City Bd. of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). And the phenomenon described by petitioners seems only to confirm, not disprove, the evidence accepted by the District Court that school segregation is a contributing cause of housing segregation. 429 F.Supp., at 259; see Keyes, 413 U.S., at 202-203, 93 S.Ct., at 2694-2695; Swann, 402 U.S., at 20-21, 91 S.Ct., at 1278-1279.
14
Although the District Court in this case discussed in its major opinion a number of specific instances of purposeful segregation, it made it quite clear that its broad findings were not limited to those instances: "Viewing the Court's March 8 findings in their totality, this case does not rest on three specific violations, or eleven, or any other specific number. It concerns a school board which since 1954 has by its official acts intentionally aggravated, rather than alleviated, the racial imbalance of the public schools it administers. These were not the facts of the Dayton case." App. to Pet. for Cert. 94.
15
Mr. Justice REHNQUIST's dissent erroneously states that we have "reliev[ed] school desegregation plaintiffs from any showing of a causal nexus between intentional segregative actions and the conditions they seek to remedy." Post, at 501. As we have expressly noted, both the District Court and the Court of Appeals found that the Board's purposefully discriminatory conduct and policies had current, systemwide impact—an essential predicate, as both courts recognized, for a systemwide remedy. Those courts reveal a much more knowledgeable and reliable view of the facts and of the record than do our dissenting Brethren.
16
"For example, there is little dispute that Champion, Felton, Mt. Vernon, Pilgrim and Garfield were de jure segregated by direct acts of the Columbus defendants' predecessors. They were almost completely segregated in 1954, 1964, 1974 and today. Nothing has occurred to substantially alleviate that continuity of discrimination of thousands of black students over the intervening decades." 429 F.Supp., at 260 (footnote omitted).
"The finding of liability in this case concerns the Columbus school district as a whole. Actions and omissions by public officials which tend to make black schools blacker necessarily have the reciprocal effect of making white schools whiter. '[I]t is obvious that a practice of concentrating Negroes in certain schools by structuring attendance zones or designating "feeder" schools on the basis of race has the reciprocal effect of keeping other nearby schools predominantly white.' Keyes[, supra, 413 U.S., at 201, 93 S.Ct., at 2694]. The evidence in this case and the factual determinations made earlier in this opinion support the finding that those elementary, junior, and senior high schools in the Columbus school district which presently have a predominantly black student enrollment have been substantially and directly affected by the intentional acts and omissions of the defendant local and state school boards." Id., at 266.
1
Federal Rule Civ.Proc. 52(a) reflects the general deference that is to be paid to the findings of a district court. "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." See United States v. United States Gypsum Co., 333 U.S. 364, 394-395, 68 S.Ct. 525, 541, 92 L.Ed. 746.
2
"School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal." Brown II, 349 U.S., at 299, 75 S.Ct., at 756.
3
"Indeed, the importance of the judicial administration aspects of the case are heightened by the presence of the substantive issues on which it turns. The proper observance of the division of functions between the federal trial courts and the federal appellate courts is important in every case. It is especially important in a case such as this where the District Court for the Southern District of Ohio was not simply asked to render judgment in accordance with the law of Ohio in favor of one private party against another; it was asked by the plaintiffs, students in the public school system of a large city, to restructure the administration of that system." Dayton I, 433 U.S., at 409-410, 97 S.Ct., at 2770.
4
In Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, the Court did discuss the affirmative duty of a school board to desegregate the school district, but limited its discussion to cases "where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education . . . ." Id., at 200, 93 S.Ct., at 2693. It is undisputed that Ohio has forbidden its school boards racially to segregate the public schools since at least 1888. See Dayton I, 433 U.S., at 410 n. 4, 97 S.Ct., at 2770 n. 4; Ohio Rev.Code Ann. § 3313.48 (Supp.1978); Board of Education v. State, 45 Ohio St. 555, 16 N.E. 373; Clemons v. Board of Education, 9 Cir., 228 F.2d 853, 858.
5
The Columbus School District grew quickly in the years after 1954. In 1950-1951, the district had 46,352 students. In 1960-1961, over 83,000 students were enrolled. Attendance peaked in 1971-1972 at just over 110,000 students, before sinking to 95,000 at the time of trial. Between 1950 and 1970, an average of over 100 classrooms a year were added to the district.
Although the Dayton District grew less dramatically, the student population increased from 35,000 in 1950-1951, of whom approximately 6,600 were Negro, to 45,000 at the time of trial, of whom about 22,000 were Negro. Twenty-four new schools were opened in Dayton between 1950 and the time of trial.
6
For example, the District Court concluded that faculty segregation in the Dayton district ceased by 1963. The Court of Appeals reversed, saying:
"In Brinkman I, supra, [6 Cir.,] 503 F.2d [684] at 697-98, this court found that defendants 'effectively continued in practice the racial assignment of faculty through the 1970-71 school year.' This finding is supported by substantial evidence on the record. The finding of the district court to the contrary is clearly erroneous." (Footnotes omitted.) Brinkman v. Gilligan, 583 F.2d 243, 253 (CA 6).
7
Thus, in considering certain optional attendance zones that the District Court found had not been instituted with a discriminatory intent, the Court of Appeals wrote:
"In reaching these clearly erroneous findings of fact, the district court once again failed to recognize the optional zones as a perpetuation, rather than an elimination, of the existing dual system; failed to afford plaintiffs the burden-shifting benefits of their prima facie case; and failed to evaluate the evidence in light of tests for segregative intent enunciated by the Supreme Court, this court and other circuits in decisions cited in this opinion." Id., at 255.
The Court of Appeals opinion relied upon the same theory in overturning the factual conclusions of the District Court that school construction and site selection had not been undertaken with a discriminatory purpose in Dayton. Thus, it is impossible to separate the conclusions of law made by the Court of Appeals from its rulings that the District Court made clearly erroneous findings of fact.
8
The two clearest cases of discrimination involved attendance zones. The near-Bexley optional zone operated from the 1959-1960 school year through the 1974-1975 school year. This zone encompassed a small area of Columbus between Alum Creek and the town of Bexley. The area west of the creek was predominately Negro; the area covered by the option was predominately white. Students living in that zone were given the option of being bused entirely through the town of Bexley to "white" Columbus schools on its eastern border. The District Court concluded:
"Nothing presented by the Columbus defendants at trial, at closing arguments, or in their briefs convinces the Court that the Near-Bexley Option was created or maintained for racially neutral reasons. The Court finds that the option was not created and maintained because of overcrowding or geographical barriers.
* * * * *
". . . Quite frankly, the Near-Bexley Option appears to this Court to be a classic example of a segregative device designed to permit white students to escape attendance at predominately black schools." 429 F.Supp. 229, 245 (SD Ohio).
The Moler discontiguous zone affected two elementary schools in the southeastern portion of the school district. A majority of the students in the Alum Crest Elementary School were, at all relevant times, Negro. Through 1969, no more than 8.7% of the students at the other school, Moler Elementary, were Negro. The District Court found:
"Between September, 1966 and June, 1968, about 70 students, most of them white, were bused daily past Alum Crest Elementary from the discontiguous attendance area to Moler Elementary. The then-principal of Alum Crest watched the bus drive past the Alum Crest building on its way to and from Moler. At the time, the Columbus Board of Education was leasing 11 classrooms at Alum Crest to Franklin County. There was enough classroom space at Alum Crest to accommodate the students who were transported to Moler. When the principal inquired of a Columbus school administrator why this situation existed, he was given no reasonable explanation.
"The Court can discern no other explanation than a racial one for the existence of the Moler discontiguous attendance area for the period 1963 through 1969." Id., at 247.
9
The Denver School District at the time of the trial in Keyes had 96,000 students, almost exactly the number of students in the Columbus system at the time of this trial. The Park Hill region of Denver had been the scene of the intentional discrimination that the Court believed justified a presumption of systemwide violation. That region contained six elementary schools and one junior high school, educating a small portion of the school district's students, but a large number of the district's Negro students.
1
See also Farley, Residential Segregation and Its Implications for School Integration, 39 Law & Contemp.Prob., No. 1, p. 164 (1975); K. Taeuber & A. Taeuber, Negroes in Cities (1965). The Court of Appeals below treated the residential segregation in Dayton and Columbus as irrelevant. See 443 U.S. 449, at 522, and n. 24, 99 S.Ct. 2941, at 2969, and n. 24, 61 L.Ed.2d 666 (REHNQUIST, J., dissenting).
2
As I suggested in my separate opinion in Keyes, it is essential to identify the constitutional right that is asserted in school desegregation cases. The Court's decisions hardly have been lucid on this point. In Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II ), the Court identified the "fundamental principle" enunciated in Brown I, as being the unconstitutionality of "racial discrimination in public education." 349 U.S., at 298, 75 S.Ct., at 755. In Keyes, I undertook to define the right, derived from the Equal Protection Clause, as one to attend an "integrated school system," a system in which school authorities take into consideration the enhancement of integrated school opportunities in addition to the goal of quality education in making and implementing their customary decisions. 413 U.S., at 226, 93 S.Ct., at 2706. I also noted that an integrated system does not mean that "every school must in fact be an integrated unit," id., at 227, 93 S.Ct., at 2706, and emphasized that the Equal Protection Clause "does not require that school authorities undertake widespread student transportation solely for the sake of maximizing integration." Id., at 242, 93 S.Ct., at 2714. When challenged, the school authorities must show that in fact they are operating an integrated system in the foregoing sense. This is quite different from the burden imposed on the school authorities by the Court of Appeals and the District Court in No. 78-610, of proving, by a preponderance of the evidence, that they have met an affirmative duty in existence since 1954 to eliminate every racially identifiable school "root and branch."
3
Defending lawsuits that remain active for years and complying with elaborate court decrees also divert the time, attention, and resources of school authorities from education.
4
A third alternative is available to parents moving for the first time into a metropolitan area where a school district is operating under a "systemwide remedy" decree. To avoid the probability of their children being bused away from neighborhood schools, and in view of the widely held belief that the schools under a court decree are likely to be inferior, these parents may seek residences beyond the urban school district.
5
Academic debate has intensified as to the degree of educational benefit realized by children due to integration. See R. Crain & R. Mahard, The Influence of High School Racial Composition on Black College Attendance and Test Performance (1978); Coleman, New Incentives for Desegregation, 7 Human Rights, No. 3, p. 10 (1978); Weinberg, The Relationship Between School Desegregation and Academic Achievement: A Review of the Research, 39 Law & Contemp.Prob., No. 2, p. 241 (1975). Much of the dispute seems beside the point. It is essential that the diverse peoples of our country learn to live in harmony and mutual respect. This end is furthered when young people attend schools with diverse student bodies. But the benefits that may be achieved through this experience often will be compromised where the methods employed to promote integration include coercive measures such as forced transportation to achieve some theoretically desirable racial balance. Cf. N. St. John, School Desegregation Outcomes for Children (1975).
6
During this period the issues confronted by the courts by and large involved combating the devices by which States deliberately perpetuated dual school systems and dismantling segregated systems in small, rural areas. E. g., Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). See Wilkinson, The Supreme Court and Southern School Desegregation, 1955-1970: A History and Analysis, 64 Va.L.Rev. 485 (1978). This Court did not begin to face the difficult administrative and social problems associated with de facto segregation in large urban school systems until Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). It is especially unfortunate that the Court today refuses to acknowledge these problems and chooses instead to sanction methods that, although often appropriate and salutary in the earlier context, are disruptive and counter-productive in school systems like those in Columbus and Dayton.
7
Wisconsin has implemented a system of subsidized, voluntary, intra- and inter-district majority-to-minority transfers. 1975 Wis. Laws, ch. 220, codified at Wis.Stat. § 121.85 (1975). It is too early to determine whether this experiment will attain its objective of encouraging substantial integration. But it is the sort of effort that should be considered by state and local officials and elected bodies. The contrast between the underlying philosophy of the Wisconsin plan and the massive coercion undertaken by the courts below is striking. See Meadows, Open Enrollment and Fiscal Incentives, in School Desegregation, Shadow and Substance 143 (Levinsohn & Wright eds. 1976).
1
See Dayton Board of Education v. Brinkman, 443 U.S. 526, 542, 99 S.Ct. 2971, 2981, 61 L.Ed.2d 720 (Dayton II ) (REHNQUIST, J., dissenting).
2
Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963); Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).
In discussing the Brown II mandate, this Court in Cooper v. Aaron, supra, 358 U.S., at 7, 78 S.Ct., at 1404, observed:
"Of course, in many locations, obedience to the duty of desegregation would require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes, at particular
schools. On the other hand, a District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children."
A similar limited expectation pervades Goss v. Board of Education, supra, where this Court invalidated court-ordered desegregation plans which permitted transfers on the basis of race. Specifically, the desegregation plan called for the redrawing of school districts without reference to race, but explicitly authorized transfers by students of one race from a school where their race was a minority to a school where their race was a majority. There was no provision for majority-to-minority school transfers. This Court objected to the explicit racial character of the transfer program.
"Our task then is to decide whether these transfer provisions are . . . unconstitutional. In doing so, we note that if the transfer provisions were made available to all students regardless of their race and regardless as well of the racial composition of the school to which he requested transfer we would have an entirely different case. Pupils could then at their option (or that of their parents) choose, entirely free of any imposed racial considerations, to remain in the school of their zone or transfer to another." 373 U.S., at 687, 83 S.Ct., at 1408.
Griffin v. School Board, supra, involved a situation where a school system literally closed down its schools rather than desegregate. The decree endorsed by this Court, in the face of massive resistance, was simply an order to the school board requiring it to admit students without regard to race to a white high school and to make plans for admissions to elementary schools without regard to race.
3
Two other cases were handed down on the same day as Green. Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968), involved an almost identical factual situation with a similar experience under a freedom-of-choice plan. For the same reasons that such a plan was inadequate for New Kent County, it was found inadequate for the Gould School District involved in the Raney litigation. The other case handed down with Green, Monroe v. Board of Comm'rs, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968), concerned the city of Jackson, Tenn. At issue in that case was a "free-transfer" rather than "freedom-of-choice" plan. The "free-transfer" provisions were part of a court-ordered plan that essentially instituted a neighborhood school policy for the three junior high schools in the system. Any child could transfer to another school if space was available, i. e., if there were no neighborhood-zone residents to fill the spaces. This Court did not object to the neighborhood school policy as part of a remedy, even though some neighborhoods were racially identifiable, but it found that the effect of the free-transfer policy was to maintain the racial characters of the three junior high schools. One remained all black and another 99% white.
4
There were two school desegregation cases heard in this Court in the years between Swann and Green. Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), reiterated that the era of "all deliberate speed" had ended. United States v. Montgomery County Board of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969), involved an order requiring the reassignment of some faculty and staff of the Montgomery County school system in line with numerical targets set by the District Court.
5
Nevertheless, the Court of Appeals refers to Swann as an opinion which "dealt more thoroughly than any other opinion of the Court with the method of proof of constitutional violations," 583 F.2d 787, 793 (CA6 1978), and relies on it throughout its opinion for standards of proof in determining the existence of a violation. Swann was in fact an attempt to articulate the "equitable remedial discretion of the District Court" which admits more latitude than the standards for determining a violation. 402 U.S., at 25, 91 S.Ct., at 1280; see id., at 15-16, 91 S.Ct., at 1275-1276. There is no "discretion" in the latter context.
6
Later in its opinion, the Swann Court refers to the District Court's finding, "approved by the Court of Appeals, that the school board had totally defaulted in its acknowledged duty to come forward with an acceptable plan of its own, notwithstanding the patient efforts of the District Judge who, on at least three occasions, urged the board to submit plans." Id., at 24, 91 S.Ct., at 1280.
Four other cases came down the same day as Swann. One was dismissed for lack of jurisdiction, Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47, 91 S.Ct. 1292, 28 L.Ed.2d 590 (1971); one upheld a declaration that a North Carolina antibusing law was unconstitutional, North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971); and another remanded a remedy order for reconsideration in light of criteria laid down in Swann, Davis v. Board of School Comm'rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971). The final case, McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971), invalidated a state-court order barring on federal grounds a formerly statutory dual system's voluntary transition to a modified neighborhood school policy.
7
The point is reiterated later in the Keyes opinion.
"If the District Court determines that the Denver school system is a dual school system, respondent School Board has the affirmative duty to desegregate the entire system 'root and branch.' " 413 U.S., at 213, 93 S.Ct., at 2700.
8
In fact, this theory was pressed upon the Court in Dayton , Brief for Respondents, O.T. 1976, No. 76-539, pp. 58-71; yet it was implicitly rejected in this Court's detailed articulation of the proper approach to equal protection challenges involving school systems "where mandatory segregation by law of the races in the schools has long since ceased." 433 U.S., at 420, 97 S.Ct., at 2775.
9
As the Court notes, incidents relied on by the District Court occurred anywhere from 1909 to 1943.
10
"The essential element of de jure segregation is 'a current condition of segregation resulting from intentional state action.' " Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976) (quoting Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S., at 205, 93 S.Ct., at 2695).
11
The reliance on school construction was critical. As the Court of Appeals found, the other post-1954 incidents relied on by the District Court were "isolated," 583 F.2d, at 805, and therefore could not have constituted a basis for a systemwide remedy. Dayton I, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977). And the only other conduct arguably having systemwide implications, racial assignment of teachers, had been corrected, was not the subject of any remedial order, 429 F.Supp. 229, 238, 260 (SD Ohio 1977), and, in any event, could not itself support the systemwide remedy under the Sixth Circuit's own precedents. Higgins v. Board of Education of City of Grand Rapids, 508 F.2d 779 (CA 6 1974); see Dayton II, 443 U.S., at 536 n. 9, 99 S.Ct., at 2978 n. 9.
12
Prefacing its discussion with the observation that "in some instances initial site selection and boundary changes present integrative opportunities," 429 F.Supp., at 241, the District Court made specific findings only with respect to 2 of the 103 schools constructed between 1950 and 1975 in the Columbus school system—Gladstone Elementary and Sixth Avenue
Elementary—1 of which does not exist today. The sites for both schools followed recommendations by the Bureau of Education Research of Ohio State University. Ohio State University, Bureau of Educational Research, The 1958-1959 Study of the Public School Building Needs of Columbus, Ohio 58 (1959) (Sixth Avenue); Ohio State University, Bureau of Educational Research, The 1963-1964 Study of the Public School Building Needs of Columbus, Ohio 65 (1964) (Gladstone).
The Gladstone Elementary School opened in 1965. The "violation" inherent in that siting is described as follows by the District Court and this passage is quoted and fully adopted by the Court of Appeals.
"The need for greater school capacity in the general Duxberry area would have been logically accommodated by the construction of Gladstone north of its present location, nearer to Hudson Street. This would, of course, require some redrawing of boundary lines in order to accommodate the need for class space in Hamilton and Duxberry. If, however, the boundary lines had been drawn on a north-south pattern rather than an east-west pattern, as some suggested, the result would have been an integrative effect on Hamilton, Duxberry and the newly-constructed school." 429 F.Supp., at 242, quoted in 583 F.2d, at 803.
Thus, the placement of Gladstone is a violation—not because the placement was racially motivated, it was demonstrably not so but because another site would have had a more integrative impact, and it is a violation despite the determination by the Bureau of Educational Research that objective and legitimate educational criteria militated in favor of the Gladstone site.
The secondary status of educational objectives other than integration is even more obvious in the discussion of the Sixth Avenue School where the District Court characterized the relevant inquiry as whether "the objectives of racial integration would have been better served" by a different site and different boundaries. 429 F.Supp., at 243. The Sixth Avenue School does not exist any more, and students within its old boundaries attend two neighboring, racially balanced schools.
13
This is explicitly recognized by the Court in Dayton II, 443 U.S., at 538, 99 S.Ct., at 2979 (emphasis added):
"[T]he measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the
purpose, of the actions in decreasing or increasing the segregation caused by the dual system."
But the cases relied on by the Court, ante, at 459, to establish this affirmative duty and its implications—Dayton I, Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), and United States v. Scotland Neck Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972)—bear absolutely no relation to the analysis in this case. The pages cited from Dayton I simply endorse a Court of Appeals' observation that there is nothing wrong with a school board rescinding resolutions it was under no duty to promulgate; as I have indicated, the analysis set out in Dayton I is entirely inconsistent with the "affirmative duty" invoked by the courts below. See n. 8, supra. The citation to Wright is equally mysterious. The city of Emporia is located in Greensville County, Va. Up until 1968, it was part of Greensville County's public school system. A desegregation lawsuit was initiated in 1965 and resulted in a court-ordered "freedom-of-choice" desegregation plan for the Greensville County schools, including those within the city of Emporia. After Green, the court modified its decree and ordered pairing of certain schools. The city of Emporia then announced its intention to withdraw its schools from the Greensville County school system. The District Court enjoined it from doing so because Emporia's schools had been part of the adjudicated dual system, and the court's decree would be frustrated by withdrawal of the Emporia schools. In contrast the instant case has nothing to do with frustrating outstanding court orders.
United States v. Scotland Neck Board of Education, supra, was a case where the United States Department of Justice had been negotiating with the County School Board of Halifax County, N.C., in an attempt to bring it into compliance with federal law. In 1965, the schools of Halifax County were completely segregated on the basis of race. An agreement was reached that was designed to make the Halifax County school system unitary by the 1969 school year. However, in 1969, the North Carolina Legislature authorized a new independent school district in the middle of Halifax County which was to be bounded by the city limits of Scotland Neck. The United States promptly filed suit seeking desegregation of the Halifax County schools and an injunction blocking Scotland Neck's withdrawal. The District Court ordered desegregation of the Halifax County schools and enjoined creation of the independent Scotland Neck district. This Court held, quoting Wright, that if the
Scotland Neck " 'proposal would impede the dismantling of a dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out.' " 407 U.S., at 489, 92 S.Ct., at 2217. There is certainly no support in Scotland Neck for the analysis employed today, and the Court offers no explanation.
14
As the Court today acknowledges, Dayton II, 443 U.S., at 536 n. 9, 99 S.Ct., at 2978 n. 9, racial assignment of teachers does not make out a Keyes showing regarding racial assignment of students. And testimony on the existence of gerrymandering went little beyond the establishment of an irregular boundary line. Testimony of W. A. Montgomery, App. 389-390. Cf. Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964). The District Court conceded that at the time of Brown I, there was "substantial racial mixing of both students and faculty in some schools" in the Columbus system. 429 F.Supp., at 236.
15
"The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion." E. Cleary, McCormick on Evidence 786 (2d ed. 1972).
There is a policy judgment sometimes made, which "should not be overemphasized," id., at 787, that the facts on a particular issue are so peculiarly within the knowledge of a certain party that the burden of proof on that issue should be allocated to him. Whatever the merits of the burden-shift to the school board where contemporaneous board decisions are at issue, see Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S., at 262-263, 93 S.Ct., at 2723-2724 (REHNQUIST, J., dissenting), they do not commend a burden-shift regarding conduct 25 or more years ago.
The Court charges that in questioning the propriety of employing the Keyes burden-shift in this case, we "claim a better grasp of the historical and ultimate facts than the two courts below had." Ante, at 457 n. 6. But the Keyes burden-shift is not an ultimate finding of fact at all. It is a creature of this Court, brought into play by the making of only a prima facie showing, and applied in this case in a completely novel way. To criticize its use is not to upset "factfinding," but to criticize the absence of findings of fact which have heretofore been thought necessary in order to support the sort of remedy imposed by the District Court. Its use here is surely no less a subject for this Court's review than it was in Keyes itself.
16
The Columbus school system has changed dramatically in the last 25 years. The city grew from 40 square miles in 1950 to 173 square miles in 1975, and its student enrollment more than doubled. Many of the system's schools serve areas that were undeveloped in 1950. One hundred and three new school buildings were added during this period and 145 additions were made to existing buildings. On average, over 100 new classrooms were built each year.
17
To add the word "foreseeable" does not change the analysis, because the police department in Davis would be hard pressed to say that the disparate impact of the examination was unforeseeable. It is well documented that minorities do not perform as well as Anglo-Americans on standardized exams principally because of cultural and socioeconomic differences. The Davis Court implicitly recognized that the impact in that and similar cases was foreseeable. 426 U.S., at 248, 96 S.Ct., at 2051, and n. 14. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, at 278-279, 99 S.Ct. 2282, at 2295-2296, 60 L.Ed.2d 870 (1979).
18
Specifically, the District Court prefaced its discussion of the neighborhood school policy with the following question:
"If a board of education assigns students to schools near their homes pursuant to a neighborhood school policy, and does so with full knowledge of segregated housing patterns and with full understanding of the foreseeable racial effects of its actions, is such an assignment policy a factor which may be considered by a court in determining whether segregative intent exists? A majority of the United States Supreme Court has not directly answered this question regarding non-racially motivated inaction." 429 F.Supp., at 254 (latter emphasis added).
Before today, I would have thought that the question whether nonracially motivated inaction was probative on discriminatory purpose would answer itself with an emphatic "No." We have to date indicated that only racially motivated governmental decisionmaking is addressed by the Equal Protection Clause. It was in the course of reasoning to an affirmative answer to this question that the District Court made the first observation quoted by the Court, i. e., that the foreseeable effects of nonracially motivated inaction is probative on segregative intent. And the second quotation lifts the District Court's conclusion on this issue out of context.
"Substantial adherence to the neighborhood school concept with full knowledge of the predictable effects of such adherence upon racial imbalance in a school system is one factor among many others which may be considered by a court in determining whether an inference of segregative intent should be drawn." Id., at 255 (emphasis added).
Thus the interesting proposition, worthy of Lewis Carroll at his best, that a lack of discriminatory purpose will not by itself support an inference of discriminatory purpose.
19
In its general discussion of discriminatory intent or purpose, the District Court defines the relevant test as follows:
"The intent contemplated as necessary proof can best be described as it is usually described—intent embodies the expectations that are the natural and probable consequences of one's act or failure to act. That is, the law presumes that one intends the natural and probable consequences of one's actions or inactions." Id., at 252.
See id., at 253-254, n. 3.
20
Id., at 245:
"The Court is not so concerned with the numbers of students who exercised or could have exercised this option, as it is with the light that the creation and maintenance of the option sheds upon the intent of the Columbus Board of Education."
21
There were apparently only two other instances where the Columbus School Board has had K-3 primary units and both of those were to supplement overcrowding in the lower grades of K-6 home schools. Id., at 249.
22
There is substantial discussion in the District Court's opinion about various groups that gave the Columbus School Board notice that certain decisions would have a segregative rather than integrative impact. Id., at 255-256. But notice in and of itself only goes so far as to establish foreseeability, and foreseeability itself is not the ultimate fact in issue if we continue to adhere to Davis and Arlington Heights.
23
Dayton I was handed down after the liability phase of this case. It was brought to the District Court's attention while it was considering the remedy, and the District Court dismissed it as simply reiterating the maxim that "the nature of the violation determines the scope of the remedy." Certainly Dayton I was a much more precise articulation of what implementing that maxim entailed than is found in this Court's prior cases. And the Court of Appeals' explanation of "incremental segregative effect" in this case communicates no clear conception of the type of inquiry into causation that Dayton I requires.
"It is clear to us that the phrases 'incremental segregative effect' and 'systemwide impact' employed in the Dayton case require that the question of systemwide impact be determined by judging segregative intent and impact as to each isolated practice, or episode. Each such practice or episode inevitably adds its own 'increment' to the totality of the impact of segregation. Dayton does not, however, require each of fifty segregative practices or episodes to be judged solely upon its separate impact on the system. The question posed concerns the impact of the total amount of segregation found—after each separate practice or episode has added its 'increment' to the whole. It was not just the last wave which breached the dike and caused the flood." 583 F.2d, at 813-814 (emphasis in original).
In Brinkman v. Gilligan, 583 F.2d 243, 257 (CA6 1978), the court's description becomes metaphysical:
"The word 'incremental' merely describes the manner in which segregative impact occurs in a northern school case where each act, even if minor in itself, adds incrementally to the ultimate condition of segregated schools. The impact is 'incremental' in that it occurs gradually over the years instead of all at once as in a case where segregation was mandated by a state statute or a provision of a state constitution."
24
This empirical observation was not the product of evidence about Columbus, but general opinions expressed by two experts, Dr. Karl Taeuber and Martin Sloane; the latter testified on federal housing policy in the United States. As Mr. Justice POWELL has noted, experts have found that residential segregation exists " 'regardless of the character of local laws and policies, and regardless of the extent of other forms of segregation or discrimination.' " Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S., at 223 n. 9, 93 S.Ct., at 2705 n. 9 (concurring in part and dissenting in part) (quoting Dr. Taeuber).
Dr. Taeuber credited residential segregation to economics, choice, and discrimination. In the latter category he included racially motivated site selection in public housing and urban renewal programs, restrictive covenants in housing deeds, lending policies of financial institutions, practices of the real estate industry, and zoning policies. Entering into all of this in some unspecified manner is the influence of school attendance zones. Testimony of Dr. Karl Taeuber, App. 280-311.
25
L. Hand, The Bill of Rights 73 (The Oliver Wendell Holmes Lectures, 1958):
"For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."
| 12
|
443 U.S. 595
99 S.Ct. 3020
61 L.Ed.2d 775
R. W. JONES, Sr., et al., Petitioners,v.Charles T. WOLF et al.
No. 78-91.
Argued Jan. 16, 1979.
Decided July 2, 1979.
Syllabus
This case involves a dispute over the ownership of church property following a schism in a local church affiliated with a hierarchical church organization. The property of the Vineville Presbyterian Church of Macon, Ga. (local church), is held in the names of the local church or of trustees for the local church. That church, however, was established as a member of the Augusta-Macon Presbytery of the Presbyterian Church in the United States (PCUS), which has a generally hierarchical form of government. Under the polity of the PCUS, the government of the local church is committed to its Session in the first instance, but the actions of this "court" are subject to the review and control of the higher church courts (the Presbytery, Synod, and General Assembly). At a congregational meeting attended by a quorum of the local church's members, 164 of them voted to separate from the PCUS, while 94 opposed the resolution. The majority then united with another denomination and has retained possession of the local church property. The Augusta-Macon Presbytery appointed a commission to investigate the dispute, and the commission eventually issued a ruling declaring that the minority faction constituted the "true congregation" of the local church, and withdrawing from the majority faction "all authority to exercise office derived from the [PCUS]." Representatives of the minority faction brought this class action in state court, seeking declaratory and injunctive orders establishing their right to exclusive possession and use of the local church's property as a member of the PCUS. The trial court, purporting to apply Georgia's "neutral principles of law" approach to church property disputes, granted judgment for the majority. The Georgia Supreme Court affirmed, holding that the trial court had correctly stated and applied Georgia law and rejecting the minority's challenge based on the First and Fourteenth Amendments.
Held:
1. As a means of adjudicating a church property dispute, a State is constitutionally entitled to adopt a "neutral principles of law" analysis involving consideration of the deeds, state statutes governing the holding of church property, the local church's charter, and the general church's constitution. The First Amendment does not require the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved. Pp. 602-606.
2. Here, the case must be remanded since the grounds for the Georgia courts' decision that the majority faction represents the local church were not articulated, both the trial court and the Georgia Supreme Court having applied Georgia's neutral-principles analysis as developed in cases involving church property disputes between general churches and entire local congregations, without alluding to the significant complicating factor in the present case that the local congregation was itself divided. If in fact Georgia has adopted a presumptive rule of majority representation, defeasible upon a showing that the identity of the local church is to be determined by some other means, this would be consistent with both the neutral-principles analysis and the First Amendment. However, there are at least some indications that under Georgia law the process of identifying the faction that represents a local church involves considerations of religious doctrine and polity, and thus if Georgia law provides that the identity of the local church here is to be determined according to the laws and regulations of the PCUS, then the First Amendment requires that the Georgia courts give deference to the presbyterial commission's determination that the minority faction represents the "true congregation." Pp. 606-610.
241 Ga. 208, 243 S.E.2d 860, vacated and remanded.
E. Barrett Prettyman, Jr., Washington, D. C., for petitioners.
Frank C. Jones, Atlanta, Ga., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case involves a dispute over the ownership of church property following a schism in a local church affiliated with a hierarchical church organization. The question for decision is whether civil courts, consistent with the First and Fourteenth Amendments to the Constitution, may resolve the dispute on the basis of "neutral principles of law," or whether they must defer to the resolution of an authoritative tribunal of the hierarchical church.
2
* The Vineville Presbyterian Church of Macon, Ga., was organized in 1904, and first incorporated in 1915. Its corporate charter lapsed in 1935, but was revived and renewed in 1939, and continues in effect at the present time.
3
The property at issue and on which the church is located was acquired in three transactions, and is evidenced by conveyances to the "Trustees of [or 'for'] Vineville Presbyterian Church and their successors in office," App. 251, 253, or simply to the "Vineville Presbyterian Church." Id., at 249. The funds used to acquire the property were contributed entirely by local church members. Pursuant to resolutions adopted by the congregation, the church repeatedly has borrowed money on the property. This indebtedness is evidenced by security deeds variously issued in the name of the "Trustees of the Vineville Presbyterian Church," e. g., id., at 278, or, again, simply the "Vineville Presbyterian Church." Id., at 299.
4
In the same year it was organized, the Vineville church was established as a member church of the Augusta-Macon Presbytery of the Presbyterian Church in the United States (PCUS). The PCUS has a generally hierarchical or connectional form of government, as contrasted with a congregational form. Under the polity of the PCUS, the government of the local church is committed to its Session in the first instance, but the actions of this assembly or "court" are subject to the review and control of the higher church courts, the Presbytery, Synod, and General Assembly, respectively. The powers and duties of each level of the hierarchy are set forth in the constitution of the PCUS, the Book of Church Order, which is part of the record in the present case.
5
On May 27, 1973, at a congregational meeting of the Vineville church attended by a quorum of its duly enrolled members, 164 of them, including the pastor, voted to separate from the PCUS. Ninety-four members opposed the resolution. The majority immediately informed the PCUS of the action, and then united with another denomination, the Presbyterian Church in America. Although the minority remained on the church rolls for three years, they ceased to participate in the affairs of the Vineville church and conducted their religious activities elsewhere.
6
In response to the schism within the Vineville congregation, the Augusta-Macon Presbytery appointed a commission to investigate the dispute and, if possible, to resolve it. The commission eventually issued a written ruling declaring that the minority faction constituted "the true congregation of Vineville Presbyterian Church," and withdrawing from the majority faction "all authority to exercise office derived from the [PCUS]." App. 235. The majority took no part in the commission's inquiry, and did not appeal its ruling to a higher PCUS tribunal.
7
Representatives of the minority faction sought relief in federal court, but their complaint was dismissed for want of jurisdiction. Lucas v. Hope, 515 F.2d 234 (CA5 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1464, 47 L.Ed.2d 734 (1976). They then brought this class action in state court, seeking declaratory and injunctive orders establishing their right to exclusive possession and use of the Vineville church property as a member congregation of the PCUS. The trial court, purporting to apply Georgia's "neutral principles of law" approach to church property disputes, granted judgment for the majority. The Supreme Court of Georgia, holding that the trial court had correctly stated and applied Georgia law, and rejecting the minority's challenge based on the First and Fourteenth Amendments, affirmed. 241 Ga. 208, 243 S.E.2d 860 (1978). We granted certiorari. 439 U.S. 891, 99 S.Ct. 247, 58 L.Ed. 237 (1978).
II
8
Georgia's approach to church property litigation has evolved in response to Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969) (Presbyterian Church I ), rev'g Presbyterian Church v. Eastern Heights Church, 224 Ga. 61, 159 S.E.2d 690 (1968). That case was a property dispute between the PCUS and two local Georgia churches that had withdrawn from the PCUS. The Georgia Supreme Court resolved the controversy by applying a theory of implied trust, whereby the property of a local church affiliated with a hierarchical church organization was deemed to be held in trust for the general church, provided the general church had not "substantially abandoned" the tenets of faith and practice as they existed at the time of affiliation.1 This Court reversed, holding that Georgia would have to find some other way of resolving church property disputes that did not draw the state courts into religious controversies. The Court did not specify what that method should be, although it noted in passing that "there are neutral principles of law, developed for use in all property disputes, which can be applied without 'establishing' churches to which property is awarded." 393 U.S., at 449, 89 S.Ct., at 606.
9
On remand, the Georgia Supreme Court concluded that, without the departure-from-doctrine element, the implied trust theory would have to be abandoned in its entirety. Presbyterian Church v. Eastern Heights Church, 225 Ga. 259, 167 S.E.2d 658 (1969) (Presbyterian Church II ). In its place, the court adopted what is now known as the "neutral principles of law" method for resolving church property disputes. The court examined the deeds to the properties, the state statutes dealing with implied trusts, Ga.Code §§ 108-106, 108-107 (1978), and the Book of Church Order to determine whether there was any basis for a trust in favor of the general church. Finding nothing that would give rise to a trust in any of these documents, the court awarded the property on the basis of legal title, which was in the local church, or in the names of trustees for the local church. 225 Ga., at 261, 167 S.E.2d, at 660. Review was again sought in this Court, but was denied. 396 U.S. 1041, 90 S.Ct. 680, 24 L.Ed.2d 685 (1970).
10
The neutral-principles analysis was further refined by the Georgia Supreme Court in Carnes v. Smith, 236 Ga. 30, 222 S.E.2d 322, cert. denied, 429 U.S. 868, 97 S.Ct. 180, 50 L.Ed.2d 148 (1976). That case concerned a property dispute between The United Methodist Church and a local congregation that had withdrawn from that church. As in Presbyterian Church II, the court found no basis for a trust in favor of the general church in the deeds, the corporate charter, or the state statutes dealing with implied trusts. The court observed, however, that the constitution of The United Methodist Church, its Book of Discipline, contained an express trust provision in favor of the general church.2 On this basis, the church property was awarded to the denominational church. 236 Ga., at 39, 222 S.E.2d, at 328.
11
In the present case, the Georgia courts sought to apply the neutral-principles analysis of Presbyterian Church II and Carnes to the facts presented by the Vineville church controversy. Here, as in those two earlier cases, the deeds conveyed the property to the local church. Here, as in the earlier cases, neither the state statutes dealing with implied trusts, nor the corporate charter of the Vineville church, indicated that the general church had any interest in the property. And here, as in Presbyterian Church II, but in contrast to Carnes, the provisions of the constitution of the general church, the Book of Church Order, concerning the ownership and control of property failed to reveal any language of trust in favor of the general church. The courts accordingly held that legal title to the property of the Vineville church was vested in the local congregation. Without further analysis or elaboration, they further decreed that the local congregation was represented by the majority faction, respondents herein. App. to Pet. for Cert. 9a.; 241 Ga., at 212, 243 S.E.2d, at 864.
III
12
The only question presented by this case is which faction of the formerly united Vineville congregation is entitled to possess and enjoy the property located at 2193 Vineville Avenue in Macon, Ga. There can be little doubt about the general authority of civil courts to resolve this question. The State has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively. Presbyterian Church I, 393 U.S., at 445, 89 S.Ct., at 604.
13
It is also clear, however, that "the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes." Id., at 449, 89 S.Ct., at 606. Most importantly, the First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710, 96 S.Ct. 2372, 2381, 49 L.Ed.2d 151 (1976); Maryland & Va. Churches v. Sharpsburg Church, 396 U.S. 367, 368, 90 S.Ct. 499, 500, 24 L.Ed.2d 582 (1970); Presbyterian Church I, 393 U.S., at 449, 89 S.Ct., at 606. As a corollary to this commandment, the Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization. Serbian Orthodox Diocese, 426 U.S., at 724-725, 96 S.Ct., at 2387; cf. Watson v. Jones, 80 U.S. 679, 733-734, 13 Wall. 679, 733-734, 20 L.Ed. 666 (1872). Subject to these limitations, however, the First Amendment does not dictate that a State must follow a particular method of resolving church property disputes. Indeed, "a State may adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith." Maryland & Va. Churches, 396 U.S., at 368, 90 S.Ct., at 500. (BRENNAN, J., concurring) (emphasis in original).
14
At least in general outline, we think the "neutral principles of law" approach is consistent with the foregoing constitutional principles. The neutral-principles approach was approved in Maryland & Va. Churches, supra, an appeal from a judgment of the Court of Appeals of Maryland settling a local church property dispute on the basis of the language of the deeds, the terms of the local church charters, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property. Finding that this analysis entailed "no inquiry into religious doctrine," the Court dismissed the appeal for want of a substantial federal question. 396 U.S., at 368, 90 S.Ct., at 500. "Neutral principles of law" also received approving reference in Presbyterian Church I, 393 U.S., at 449, 89 S.Ct., at 606; in Mr. Justice BRENNAN's concurrence in Maryland & Va. Churches, 396 U.S., at 370, 90 S.Ct., at 501; and in Serbian Orthodox Diocese, 426 U.S., at 723 n. 15, 96 S.Ct., at 23873.
15
The primary advantages of the neutral-principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice. Furthermore, the neutral-principles analysis shares the peculiar genius of private-law systems in general—flexibility in ordering private rights and obligations to reflect the intentions of the parties. Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members.
16
This is not to say that the application of the neutral-principles approach is wholly free of difficulty. The neutral-principles method, at least as it has evolved in Georgia, requires a civil court to examine certain religious documents, such as a church constitution, for language of trust in favor of the general church. In undertaking such an examination, a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust. In addition, there may be cases where the deed, the corporate charter, or the constitution of the general church incorporates religious concepts in the provisions relating to the ownership of property. If in such a case the interpretation of the instruments of ownership would require the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body. Serbian Orthodox Diocese, 426 U.S., at 709, 96 S.Ct., at 2380.
17
On balance, however, the promise of nonentanglement and neutrality inherent in the neutral-principles approach more than compensates for what will be occasional problems in application. These problems, in addition, should be gradually eliminated as recognition is given to the obligation of "States, religious organizations, and individuals [to] structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions." Presbyterian Church I, 393 U.S., at 449, 89 S.Ct., at 606. We therefore hold that a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.
18
The dissent would require the States to abandon the neutral-principles method, and instead would insist as a matter of constitutional law that whenever a dispute arises over the ownership of church property, civil courts must defer to the "authoritative resolution of the dispute within the church itself." Post, at 614. It would require, first, that civil courts review ecclesiastical doctrine and polity to determine where the church has "placed ultimate authority over the use of the church property." Post, at 619. After answering this question, the courts would be required to "determine whether the dispute has been resolved within that structure of government and, if so, what decision has been made." Post, at 619 n. 6. They would then be required to enforce that decision. We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved.
19
The dissent suggests that a rule of compulsory deference would somehow involve less entanglement of civil courts in matters of religious doctrine, practice, and administration. Under its approach, however, civil courts would always be required to examine the polity and administration of a church to determine which unit of government has ultimate control over church property. In some cases, this task would not prove to be difficult. But in others, the locus of control would be ambiguous, and "[a] careful examination of the constitutions of the general and local church, as well as other relevant documents, [would] be necessary to ascertain the form of governance adopted by the members of the religious association." Post, at 619-620. In such cases, the suggested rule would appear to require "a searching and therefore impermissible inquiry into church polity." Serbian Orthodox Diocese, 426 U.S., at 723, 96 S.Ct., at 2387. The neutral-principles approach, in contrast, obviates entirely the need for an analysis or examination of ecclesiastical polity or doctrine in settling church property disputes.
20
The dissent also argues that a rule of compulsory deference is necessary in order to protect the free exercise rights "of those who have formed the association and submitted themselves to its authority." Post, at 618. This argument assumes that the neutral-principles method would somehow frustrate the free-exercise rights of the members of a religious association. Nothing could be further from the truth. The neutral-principles approach cannot be said to "inhibit" the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods. Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.4
IV
21
It remains to be determined whether the Georgia neutral-principles analysis was constitutionally applied on the facts of this case. Although both the trial court and the Supreme Court of Georgia viewed the case as involving nothing more than an application of the principles developed in Presbyterian Church II and in Carnes, the present case contains a significant complicating factor absent in each of those earlier cases. Presbyterian Church II and Carnes each involved a church property dispute between the general church and the entire local congregation. Here, the local congregation was itself divided between a majority of 164 members who sought to withdraw from the PCUS, and a minority of 94 members who wished to maintain the affiliation. Neither of the state courts alluded to this problem, however; each concluded without discussion or analysis that the title to the property was in the local church and that the local church was represented by the majority rather than the minority.
22
Petitioners earnestly submit that the question of which faction is the true representative of the Vineville church is an ecclesiastical question that cannot be answered by a civil court. At least, it is said, it cannot be answered by a civil court in a case involving a hierarchical church, like the PCUS, where a duly appointed church commission has determined which of the two factions represents the "true congregation." Respondents, in opposition, argue in effect that the Georgia courts did no more than apply the ordinary presumption that, absent some indication to the contrary, a voluntary religious association is represented by a majority of its members.
23
If in fact Georgia has adopted a presumptive rule of majority representation, defeasible upon a showing that the identity of the local church is to be determined by some other means, we think this would be consistent with both the neutral-principles analysis and the First Amendment. Majority rule is generally employed in the governance of religious societies. See Bouldin v. Alexander, 82 U.S. 131, 15 Wall. 131, 21 L.Ed. 69 (1872). Furthermore, the majority faction generally can be identified without resolving any question of religious doctrine or polity. Certainly, there was no dispute in the present case about the identity of the duly enrolled members of the Vineville church when the dispute arose, or about the fact that a quorum was present, or about the final vote. Most importantly, any rule of majority representation can always be overcome, under the neutral-principles approach, either by providing, in the corporate charter or the constitution of the general church, that the identity of the local church is to be established in some other way, or by providing that the church property is held in trust for the general church and those who remain loyal to it. Indeed, the State may adopt any method of overcoming the majoritarian presumption, so long as the use of that method does not impair free-exercise rights or entangle the civil courts in matters of religious controversy.5
24
Neither the trial court nor the Supreme Court of Georgia, however, explicitly stated that it was adopting a presumptive rule of majority representation.6 Moreover, there are at least some indications that under Georgia law the process of identifying the faction that represents the Vineville church involves considerations of religious doctrine and polity. Georgia law requires that "church property be held according to the terms of the church government," and provides that a local church affiliated with a hierarchical religious association "is part of the whole body of the general church and is subject to the higher authority of the organization and its laws and regulations." Carnes v. Smith, 236 Ga., at 33, 38, 222 S.E.2d, at 325, 328; see Ga.Code §§ 22-5507, 22-5508 (1978). All this may suggest that the identity of the "Vineville Presbyterian Church" named in the deeds must be determined according to terms of the Book of Church Order, which sets out the laws and regulations of churches affiliated with the PCUS. Such a determination, however, would appear to require a civil court to pass on questions of religious doctrine,7 and to usurp the function of the commission appointed by the Presbytery, which already has determined that petitioners represent the "true congregation" of the Vineville church. Therefore, if Georgia law provides that the identity of the Vineville church is to be determined according to the "laws and regulations" of the PCUS, then the First Amendment requires that the Georgia courts give deference to the presbyterial commission's determination of that church's identity.8
25
This Court, of course, does not declare what the law of Georgia is. Since the grounds for the decision that respondents represent the Vineville church remain unarticulated, the judgment of the Supreme Court of Georgia is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
26
It is so ordered.
27
Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice WHITE join, dissenting.
28
This case presents again a dispute among church members over the control of a local church's property. Although the Court appears to accept established principles that I have thought would resolve this case, it superimposes on these principles a new structure of rules that will make the decision of these cases by civil courts more difficult. The new analysis also is more likely to invite intrusion into church polity forbidden by the First Amendment.
29
* The Court begins by stating that "[t]his case involves a dispute over the ownership of church property," ante, at 597, suggesting that the concern is with legal or equitable ownership in the real property sense. But the ownership of the property of the Vineville church is not at issue. The deeds place title in the Vineville Presbyterian Church, or in trustees of that church, and none of the parties has questioned the validity of those deeds. The question actually presented is which of the factions within the local congregation has the right to control the actions of the titleholder, and thereby to control the use of the property, as the Court later acknowledges. Ante,, at 602.
30
Since 1872 disputes over control of church property usually have been resolved under principles established by Watson v. Jones, 80 U.S. 679, 13 Wall. 679, 20 L.Ed. 666 (1872). Under the new and complex, two-stage analysis approved today, a court instead first must apply newly defined "neutral principles of law" to determine whether property titled to the local church is held in trust for the general church organization with which the local church is affiliated. If it is, then the court will grant control of the property to the councils of the general church. If not, then control by the local congregation will be recognized. In the latter situation, if there is a schism in the local congregation, as in this case, the second stage of the new analysis becomes applicable. Again, the Court fragments the analysis into two substeps for the purpose of determining which of the factions should control the property.
31
As this new approach inevitably will increase the involvement of civil courts in church controversies, and as it departs from long-established precedents, I dissent.
A.
32
The first stage in the "neutral principles of law" approach operates as a restrictive rule of evidence. A court is required to examine the deeds to the church property, the charter of the local church (if there is one), the book of order or discipline of the general church organization, and the state statutes governing the holding of church property. The object of the inquiry, where the title to the property is in the local church, is "to determine whether there [is] any basis for a trust in favor of the general church." Ante, at 600. The court's investigation is to be "completely secular," "rel[ying] exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges." Ante, at 603. Thus, where religious documents such as church constitutions or books of order must be examined "for language of trust in favor of the general church," "a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust." Ante, at 604. It follows that the civil courts using this analysis may consider the form of religious government adopted by the church members for the resolution of intrachurch disputes only if that polity has been stated, in express relation to church property, in the language of trust and property law.1
33
One effect of the Court's evidentiary rule is to deny to the courts relevant evidence as to the religious polity—that is, the form of governance—adopted by the church members. The constitutional documents of churches tend to be drawn in terms of religious precepts. Attempting to read them "in purely secular terms" is more likely to promote confusion than understanding. Moreover, whenever religious polity has not been expressed in specific statements referring to the property of a church, there will be no evidence of that polity cognizable under the neutral-principles rule. Lacking such evidence, presumably a court will impose some rule of church government derived from state law. In the present case, for example, the general and unqualified authority of the Presbytery over the actions of the Vineville church had not been expressed in secular terms of control of its property. As a consequence, the Georgia courts could find no acceptable evidence of this authoritative relationship, and they imposed instead a congregational form of government determined from state law.
34
This limiting of the evidence relative to religious government cannot be justified on the ground that it "free[s] civil courts completely from entanglement in questions of religious doctrine, polity, and practice." Ante, at 603. For unless the body identified as authoritative under state law resolves the underlying dispute in accord with the decision of the church's own authority, the state court effectively will have reversed the decisions of doctrine and practice made in accordance with church law. The schism in the Vineville church, for example, resulted from disagreements among the church members over questions of doctrine and practice. App. 233. Under the Book of Church Order, these questions were resolved authoritatively by the higher church courts, which then gave control of the local church to the faction loyal to that resolution. The Georgia courts, as a matter of state law, granted control to the schismatic faction, and thereby effectively reversed the doctrinal decision of the church courts. This indirect interference by the civil courts with the resolution of religious disputes within the church is no less proscribed by the First Amendment than is the direct decision of questions of doctrine and practice.2
35
When civil courts step in to resolve intrachurch disputes over control of church property, they will either support or overturn the authoritative resolution of the dispute within the church itself. The new analysis, under the attractive banner of "neutral principles," actually invites the civil courts to do the latter. The proper rule of decision, that I thought had been settled until today, requires a court to give effect in all cases to the decisions of the church government agreed upon by the members before the dispute arose.
B
36
The Court's basic neutral-principles approach, as a means of isolating decisions concerning church property from other decisions made within the church, relies on the concept of a trust of local church property in favor of the general church. Because of this central premise, the neutral-principles rule suffices to settle only disputes between the central councils of a church organization and a unanimous local congregation. Where, as here, the neutral-principles inquiry reveals no trust in favor of the general church, and the local congregation is split into factions, the basic question remains unresolved: which faction should have control of the local church? The Court acknowledges that the church law of the Presbyterian Church in the United States (PCUS), of which the Vineville church is a part, provides for the authoritative resolution of this question by the Presbytery. Ante, at 608-609, and n. 7. Indeed, the Court indicates that Georgia, consistently with the First Amendment, may adopt the Watson v. Jones rule of adherence to the resolution of the dispute according to church law a rule that would necessitate reversal of the judgment for the respondents. Ante, at 609. But instead of requiring the state courts to take this approach, the Court approves as well an alternative rule of state law: the Georgia courts are said to be free to "adop[t] a presumptive rule of majority representation, defeasible upon a showing that the identity of the local church is to be determined by some other means." Ante, at 607. This showing may be made by proving that the church has "provid[ed], in the corporate charter or the constitution of the general church, that the identity of the local church is to be established in some other way." Ante, at 607-608.
37
On its face, this rebuttable presumption also requires reversal of the state court's judgment in favor of the schismatic faction. The polity of the PCUS commits to the Presbytery the resolution of the dispute within the local church. Having shown this structure of church government for the determination of the identity of the local congregation, the petitioners have rebutted any presumption that this question has been left to a majority vote of the local congregation.
38
The Court nevertheless declines to order reversal. Rather than decide the case here in accordance with established First Amendment principles, the Court leaves open the possibility that the state courts might adopt some restrictive evidentiary rule that would render the petitioners' evidence inadequate to overcome the presumption of majority control. Ante, at 608 n. 5. But, aside from a passing reference to the use of the neutral-principles approach developed earlier in its opinion,3 the Court affords no guidance as to the constitutional limitations on such an evidentiary rule; the state courts, it says, are free to adopt any rule that is constitutional.
39
"Indeed, the state may adopt any method of overcoming the majoritarian presumption, so long as the use of that method does not impair free-exercise rights or entangle the civil courts in matters of religious controversy." Ante, at 608.
40
In essence, the Court's instructions on remand therefore allow the state courts the choice of following the long-settled rule of Watson v. Jones or of adopting some other rule-unspecified by the Court—that the state courts view as consistent with the First Amendment. Not only questions of state law but also important issues of federal constitutional law thus are left to the state courts for their decision, and, if they depart from Watson v. Jones, they will travel a course left totally uncharted by this Court.
II
41
Disputes among church members over the control of church property arise almost invariably out of disagreements regarding doctrine and practice. Because of the religious nature of these disputes, civil courts should decide them according to principles that do not interfere with the free exercise of religion in accordance with church polity and doctrine. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 720, 96 S.Ct. 2372, 2380-2385, 49 L.Ed.2d 151 (1976); Presbyterian Church v. Hull Church, 393 U.S. 440, 445-446, 449, 89 S.Ct. 601, 604, 606, 21 L.Ed.2d 658 (1969); Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 107, 73 S.Ct. 143, 149, 97 L.Ed. 120 (1952); id., at 121-122, 73 S.Ct., at 157 (Frankfurter, J., concurring). See also Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190, 80 S.Ct. 1037, 4 L.Ed.2d 1140 (1960); Maryland & Va. Eldership v. Sharpsburg Church, 254 Md. 162, 254 A.2d 162 (1969), appeal dismissed for want of substantial federal question, 396 U.S. 367, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970). The only course that achieves this constitutional requirement is acceptance by civil courts of the decisions reached within the polity chosen by the church members themselves. The classic statement of this view is found in Watson v. Jones, 13 Wall., at 728-729:4
42
"The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for."
43
Accordingly, in each case involving an intrachurch dispute including disputes over church property—the civil court must focus directly on ascertaining, and then following, the decision made within the structure of church governance. By doing so, the court avoids two equally unacceptable departures from the genuine neutrality mandated by the First Amendment. First, it refrains from direct review and revision of decisions of the church on matters of religious doctrine and practice that underlie the church's determination of intrachurch controversies, including those that relate to control of church property.5 Equally important, by recognizing the authoritative resolution reached within the religious association, the civil court avoids interfering indirectly with the religious governance of those who have formed the association and submitted themselves to its authority. See supra, at 612-614; Watson v. Jones, supra, 80 U.S., at 728-729; Kedroff v. Saint Nicholas Cathedral, supra, 344 U.S., at 107-110, 73 S.Ct., at 149-151.
III
44
Until today, and under the foregoing authorities, the first question presented in a case involving an intrachurch dispute over church property was where within the religious association the rules of polity, accepted by its members before the schism, had placed ultimate authority over the use of the church property.6 The courts, in answering this question have recognized two broad categories of church government. One is congregational, in which authority over questions of church doctrine, practice, and administration rests entirely in the local congregation or some body within it. In disputes over the control and use of the property of such a church, the civil courts enforce the authoritative resolution of the controversy within the local church itself. Watson v. Jones, supra, 80 U.S., at 724-726. The second is hierarchical, in which the local church is but an integral and subordinate part of a larger church and is under the authority of the general church. Since the decisions of the local congregation are subject to review by the tribunals of the church hierarchy, this Court has held that the civil courts must give effect to the duly made decisions of the highest body within the hierarchy that has considered the dispute. As we stated in Serbian Orthodox Diocese v. Milivojevich:
45
"[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them." 426 U.S., at 724-725, 96 S.Ct., at 2387, 2888 (emphasis added).7
46
A careful examination of the constitutions of the general and local church, as well as other relevant documents, may be necessary to ascertain the form of governance adopted by the members of the religious association. But there is no reason to restrict the courts to statements of polity related directly to church property. For the constitutionally necessary limitations are imposed not on the evidence to be considered but instead on the object of the inquiry, which is both limited and clear: the civil court must determine whether the local church remains autonomous, so that its members have unreviewable authority to withdraw it (and its property) from the general church, or whether the local church is inseparably integrated into and subordinate to the general church.8
IV
47
The principles developed in prior decisions thus afford clear guidance in the case before us. The Vineville church is presbyterian, a part of the PCUS. The presbyterian form of church government, adopted by the PCUS, is "a hierarchical structure of tribunals which consists of, in ascending order, (1) the Church Session, composed of the elders of the local church; (2) the Presbytery, composed of several churches in a geographical area; (3) the Synod, generally composed of all Presbyteries within a State; and (4) the General Assembly, the highest governing body." Presbyterian Church v. Hull Church, 393 U.S., at 442, 89 S.Ct., at 602. The Book of Church Order subjects the Session to "review and control" by the Presbytery in all matters, even authorizing the Presbytery to replace the leadership of the local congregation, to winnow its membership, and to take control of it. No provision of the Book of Church Order gives the Session the authority to withdraw the local church from the PCUS; similarly, no section exempts such a decision by the local church from review by the Presbytery.
48
Thus, while many matters, including the management of the church property, are committed in the first instance to the Session and congregation of the local church, their actions are subject to review by the Presbytery. Here, the Presbytery exercised its authority over the local church, removing the dissidents from church office, asserting direct control over the government of the church, and recognizing the petitioners as the legitimate congregation and Session of the church. It is undisputed that under the established government of the Presbyterian Church—accepted by the members of the church before the schism—the use and control of the church property have been determined authoritatively to be in the petitioners. Accordingly, under the principles I have thought were settled, there is no occasion for the further examination of the law of Georgia that the Court directs. On remand, the Georgia courts should be directed to enter judgment for the petitioners.
1
This is sometimes referred to as the "English approach" to resolving property disputes in hierarchical churches. See Presbyterian Church I, 393 U.S., at 443, and n. 2, 89 S.Ct., at 603; Watson v. Jones, 80 U.S. 679, 727-728, 13 Wall. 679, 727-728, 20 L.Ed. 666 (1872).
2
The Book of Discipline of the United Methodist Church ¶ 1537 (1968), requires that
"title to all real property now owned or hereafter acquired by an unincorporated local church . . . shall be held by and/or conveyed and transferred to its duly elected trustees . . . and their successors in office . . . in trust, nevertheless, for the use and benefit of such local church and of The United Methodist Church. Every instrument of conveyance of real estate shall contain the appropriate trust clause as set forth in the Discipline (¶ 1503)" (emphasis added).
Although in Carnes the deeds to the local church did not contain the required trust clause, The Book of Discipline provided that in the absence of a trust clause, a trust in favor of The United Methodist Church was to be implied if (a) the conveyance was to the trustees of a local church or agency of any predecessor to The United Methodist Church, or (b) the local church used the name of any predecessor to The United Methodist Church and was known to the community as a part of the denomination, or (c) the local church accepted the pastorate of ministers appointed by any predecessor to The United Methodist Church. The Book of Discipline ¶ 1503.5. The local church in Carnes satisfied all three of these conditions. 236 Ga., at 39, 222 S.E.2d, at 328.
3
Indeed, even in Watson v. Jones, a common-law decision heavily relied upon by the dissent, Mr. Justice Miller, in speaking for the Court, stated that, regardless of the form of church government, it would be the "obvious duty" of a civil tribunal to enforce the "express terms" of a deed, will, or other instrument of church property ownership. 80 U.S., at 722-723, 13 Wall., at 722-723.
4
Given that the Georgia Supreme Court clearly enunciated its intent to follow the neutral-principles analysis in Presbyterian Church II and Carnes, this case does not involve a claim that retroactive application of a neutral-principles approach infringes free-exercise rights.
5
If the Georgia Supreme Court adopts a rule of presumptive majority representation on remand, then it should also specify how, under Georgia law, that presumption may be overcome. Because these critical issues of state law remain undetermined, we, unlike the dissent, express no view as to the ultimate outcome of the controversy if the Georgia Supreme Court adopts a presumptive rule of majority representation.
6
The Georgia Code contains the following provision dealing with the identity of a religious corporation:
"The majority of those who adhere to its organization and doctrines represent the church. The withdrawal by one part of a congregation from the original body, or uniting with another church or denomination, is a relinquishment of all rights in the church abandoned." Ga.Code § 22-5504 (1978).
The trial court noted that the defendants (respondents here) did not claim any right of possession of the Vineville church property under this section. App. to Pet. for Cert. 6a. The Georgia Supreme Court did not mention the provision.
7
Issues of church doctrine and polity pervade the provisions of the Book of Church Order of the Presbyterian Church (1972) dealing with the identity of the local congregation. The local church corporation consists of "all the communing members on the active roll" of the church. Id., § 6-2; App. 35. The "active roll," in turn, is composed "of those admitted to the Lord's Table who are active in the church's life and work." § 8-7; App. 38. The Session is given the power "to suspend or exclude from the Lord's Supper those found delinquent, according to the Rules of Discipline." § 15-6(2); App. 51. See § 111-2; App. 124. The Session is subject to "the review and control" of the Presbytery, § 14-5; App. 49, as a part of the Presbytery's general authority to "order whatever pertains to the spiritual welfare of the churches under its care." § 16-7(19); App. 56.
8
There is no suggestion in this case that the decision of the commission was the product of "fraud" or "collusion." See Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 96 S.Ct. 2372, 2382 (1976). In the absence of such circumstances, "the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them." Id., 426 U.S., at 709, 96 S.Ct., at 2380.
1
Despite the Court's assertion to the contrary, ante, at 602-603, this "neutral principles" approach was not approved by the Court in dismissing the appeal, Maryland & Va. Eldership v. Sharpsburg Church, 254 Md. 162, 254 A.2d 162 (1969). 396 U.S. 367, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970). The state court there examined the constitution of the general church, the charters of the local churches, the deeds to the property at issue, and the relevant state statutes. But it did not restrict its inquiry to a search for statements expressed in the language of trust and property law; see 254 Md., at 169-176, 254 A.2d, at 168-170. Rather, the state court canvassed all of these sources, and others, see Maryland & Va. Eldership v. Sharpsburg Church, 249 Md. 650, 665-668, 241 A.2d 691, 700-701 (1968), for information about the basic polity of the Church of God. Having concluded that the local congregations retained final authority over their property, it awarded judgment accordingly. Contrary to the statement of the Court in the present case that such an inquiry into church polity requires analysis of "ecclesiastical . . . doctrine," ante, at 605, "the Maryland court's resolution of the dispute involved no inquiry into religious doctrine." 396 U.S., at 368, 90 S.Ct., at 500.
In Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969), "neutral principles" were referred to in passing, but were never described. Id., at 449, 89 S.Ct., at 606. What the Court refers to as an "approving reference" to "neutral principles" in Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976), was only an acknowledgment in a footnote that "[n]o claim is made that the 'formal title' doctrine by which church property disputes may be decided in civil courts is to be applied in this case." Id., at 723 n. 15, 96 S.Ct., at 2387. Nor can the Court find support for its position in Watson v. Jones, 80 U.S. 679, 724-729, 13 Wall. 679, 724-729, 20 L.Ed. 666 (1872).
2
The neutral-principles approach appears to assume that the requirements of the Constitution will be satisfied if civil courts are forbidden to consider certain types of evidence. The First Amendment's Religion Clauses, however, are meant to protect churches and their members from civil law interference, not to protect the courts from having to decide difficult evidentiary questions. Thus, the evidentiary rules to be applied in cases involving intrachurch disputes over church property should be fashioned to avoid interference with the resolution of the dispute within the accepted church government. The neutral-principles approach consists instead of a rule of evidence that ensures that in some cases the courts will impose a form of church government and a doctrinal resolution at odds with that reached by the church's own authority.
The neutral-principles approach creates other difficulties. It imposes on the organization of churches additional legal requirements which in some cases might inhibit their formation by forcing the organizers to confront issues that otherwise might never arise. It also could precipitate church property disputes, for existing churches may deem it necessary, in light of today's decision, to revise their constitutional documents, charters, and deeds to include a specific statement of church polity in the language of property and trust law.
3
Ante, at 607-608. Such a use would be an extension of this restrictive rule of evidence, and one likely to exacerbate further the interference with free religious exercise. See supra, at 612-614. Not only will a local congregation of a general hierarchical church be treated as an independent congregational church unless the rules of church government have been expressed in specified documents with explicit reference to church property, in addition, all local congregations will be regarded as having a rule of majority control unless they have related their general voting rules explicitly to disputes about church property. As a consequence, the resolution of doctrinal disputes within the polity chosen by the church members often will be overturned by the civil courts, an interference with religious exercise that cannot be squared with the First Amendment.
4
Watson v. Jones was decided at a time when the First Amendment was not considered to be applicable to the States through the Fourteenth Amendment, and before Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), made state law applicable in diversity cases. But beginning with Kedroff v. Saint Nicholas Cathedral, 344 U.S., at 116, 73 S.Ct., at 154, this Court has indicated repeatedly that the principles of general federal law announced in Watson v. Jones are now regarded as rooted in the First Amendment, and are applicable to the States through the Fourteenth Amendment. Presbyterian Church v. Hull Church, 393 U.S., at 447-448, 89 S.Ct., at 605; Serbian Orthodox Diocese v. Milivojevich, 426 U.S., at 710-711, 96 S.Ct., at 2381.
5
Thus, in Presbyterian Church v. Hull Church, supra, the Court forbade the use of the "English approach" in the resolution of church property disputes because it requires the civil courts to determine whether authoritative decisions of doctrine and practice are consistent with the longstanding tenets of faith of a particular church. 393 U.S., at 449-450, 89 S.Ct., at 606; accord, Watson v. Jones, supra, 13 Wall., at 727-729. Similarly, in Serbian Orthodox Diocese v. Milivojevich, supra, the control of church property turned on the resolution of questions of doctrine and practice, "which under our cases is [only] for ecclesiastical and not civil tribunals." 426 U.S., at 709, 96 S.Ct., at 2380; see id., at 720, 96 S.Ct., at 2385.
6
After answering this question, of course, the civil court must determine whether the dispute has been resolved within that structure of government and, if so, what decision has been made.
7
Accord, Kedroff v. Saint Nicholas Cathedral, supra, 344 U.S., at 113-114, 73 S.Ct., at 153; Watson v. Jones, supra, 80 U.S., at 727.
8
See Kauper, Church Autonomy and the First Amendment: the Presbyterian Church Case, in Church and State: The Supreme Court and the First Amendment 90-92, 97-98 (P. Kurland ed. 1975). The Court suggests that the careful consideration of church constitutions and other relevant documents as a prerequisite to deciding basic questions of church polity may be impermissible if it requires a "searching . . . inquiry into church polity." Ante, at 605, quoting Serbian Orthodox Diocese v. Milivojevich, 426 U.S., at 723, 96 S.Ct., at 2387. The issue in Serbian Orthodox Diocese, however, was quite different. There, the hierarchical polity of the church was clear. Id., at 715-717, 96 S.Ct., at 2383-2384. What the Court held impermissible was the state court's further inquiry into the faithfulness of the church hierarchy's decisions to the detailed provisions of church law. Id., at 712-713, 718, 721-723, 96 S.Ct., at 2381-2382, 2386-2387; id., at 725, 96 S.Ct., at 2387 (WHITE, J., concurring).
| 23
|
443 U.S. 545
99 S.Ct. 2993
61 L.Ed.2d 739
Jim ROSE, Warden, Petitioner,v.James E. MITCHELL and James Nichols, Jr.
No. 77-1701.
Argued Jan. 16, 1979.
Decided July 2, 1979.
Syllabus
Respondents, who are Negroes, were indicted by a county grand jury in Tennessee for murder. They filed a plea in abatement seeking dismissal of the indictment on the ground, inter alia, that the foreman of the grand jury had been selected in a racially discriminatory fashion. At a hearing on this plea, respondents called as witnesses 3 jury commissioners who testified only as to the selection of the grand jury venire; 2 former foremen who testified that they had never known of a Negro foreman but were not questioned as to how long they had resided in the county; the current foreman who stated he had no knowledge as to whether any Negro had ever served; and 11 of the 12 grand jurors (other than the foreman) who served when respondents were indicted, none of whom testified relative to selection of the foreman or the race of past foremen. The trial court denied the plea. Subsequently, respondents were convicted, and the Tennessee Court of Criminal Appeals affirmed. Respondents then filed a habeas corpus petition in Federal District Court, which dismissed the petition, finding that respondents' prima facie case of discrimination in selecting the grand jury foreman was rebutted by the State. The Court of Appeals reversed.
Held:
1. Claims of racial discrimination in the selection of members of a state grand jury are cognizable in federal habeas corpus and will support issuance of a writ setting aside a conviction and ordering the indictment quashed, notwithstanding that no constitutional impropriety tainted the selection of the petit jury and guilt was established beyond a reasonable doubt at a trial free from constitutional error. Pp. 550-564.
(a) Because discrimination on the basis of race in the selection of members of a grand jury strikes at fundamental values of our judicial system and our society as a whole, a criminal defendant's right to equal protection of the laws is denied when he is indicted by a grand jury from which members of a racial group have been purposefully excluded. Pp. 2997-3001.
(b) Such costs as exist in permitting a federal court to hear claims of racial discrimination in the selection of a grand jury when reviewing a state conviction, are outweighed by the recognized policy of combatting racial discrimination in the administration of justice. Even though there are alternative remedies to vindicate the rights of those members of the class denied the chance to serve on grand juries, the fact is that permitting challenges to unconstitutional state action by defendants has been, and is, the main avenue by which Fourteenth Amendment rights are vindicated in this context. Pp. 557-559.
(c) The rationale of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067, in which it was held that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim at trial and on direct review, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained through an unconstitutional search and seizure was introduced at his trial, will not be extended to a claim of discrimination in the selection of the grand jury that indicts the habeas petitioner. This latter claim differs fundamentally from application on habeas of the Fourth Amendment exclusionary rule. Such a claim concerns allegations that the trial court itself violated the Fourteenth Amendment in the operation of the grand jury system, whereas in Fourth Amendment cases, courts are called upon to evaluate the actions of the police in seizing evidence. Moreover, a claim of grand jury discrimination involves charges that state officials are violating the direct command of the Equal Protection Clause of the Fourteenth Amendment, and federal statutes passed thereunder, that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Federal habeas review is necessary to ensure that constitutional defects in the state judiciary's grand jury selection procedure are not overlooked by the very state judges who operate that system. Pp. 559-564.
2. As a matter of law, respondents failed to make out a prima facie case of discrimination in violation of the Equal Protection Clause with regard to the selection of the grand jury foreman. Respondents' case rested entirely on the testimony of the two former foremen and the current foreman, since they were the only ones who testified at all about the selection of a foreman, and their testimony was insufficient to establish respondents' case. Absent evidence as to the total number of foremen appointed by the judges in the county during the critical period of time, it is difficult to say that the number of Negroes appointed foreman, even if zero, is statistically so significant as to make out a case of discrimination under the "rule of exclusion." Pp. 564-574.
570 F.2d 129, reversed and remanded.
William M. Leech, Jr., Atty. Gen. of Tenn., for petitioner.
Walter C. Kurtz, Nashville, Tenn., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.*
1
In this federal habeas corpus case, respondents claim they were the victims of racial discrimination, in violation of the Equal Protection Clause of the Fourteenth Amendment, in the selection of the foreman of the Tennessee grand jury that indicted them for murders in the first degree. As the case comes to this Court, no issue of discrimination in the selection of the venire is presented; we are concerned only with the selection of the foreman.
2
* In November 1972 respondents James E. Mitchell and James Nichols, Jr., and two other men were jointly indicted by the grand jury of Tipton County, Tenn. The four were charged in two counts of first-degree murder in connection with the shooting deaths of patrons during the robbery of a place known as White's Cafe.1 Prior to trial, respondents filed with the county court a written pro se motion in the nature of a plea in abatement. App. 1. They sought thereby, together with other relief, the dismissal of the indictment on the grounds that the grand jury array, and the foreman, had been selected in a racially discriminatory fashion.2 Each respondent is a Negro.
3
The court appointed counsel to represent respondents and in due course conducted an evidentiary hearing on the plea in abatement. At that hearing, testimony on behalf of the respondents was taken from the 3 Tipton County jury commissioners; from 2 former Tipton County grand jury foremen; from the foreman of the grand jury serving at the time respondents were indicted; and from 11 of the 12 other members of that grand jury. The court clerk was a witness on behalf of the State. Id., at 3-35.
4
At the close of this evidence, the court denied the plea in abatement, first orally, and then by written order, without comment. Id., at 35 and 36.
5
Respondents were then tried jointly to a jury. A verdict of guilty of first-degree murder on each count was returned. Respondents received sentences of 60 years on each count, the sentences to run consecutively with credit allowed for time spent in jail awaiting trial.
6
On appeal, the Court of Criminal Appeals of Tennessee affirmed the convictions, finding, with respect to an assignment of error relating to the plea in abatement, that the "facts here do not demonstrate a systematic exclusion of Negroes upon racial grounds." Id., at 38-39. The Supreme Court of Tennessee denied certiorari. Id., at 42.
7
Respondents each then filed a pro se petition for a writ of habeas corpus in the United States District Court for the Western District of Tennessee, id., at 43-52, 62-73, renewing, among other things, the allegation of discrimination in the selection of the Tipton County grand jury and its foreman. The District Court referred the petitions to a magistrate who, after reviewing the evidence introduced in the state court at the hearing on the plea in abatement and studying the method of selection, recommended that the court hold an evidentiary hearing on the grand jury and jury foreman selection issues. Specifically, the magistrate concluded that respondents had presented an unrebutted prima facie case with respect to the selection of the foreman. Id., at 84, 90, 97. The District Court disagreed with the magistrate as to the grand jury, and concluded that the state judge had ruled correctly on that issue. On the foreman question, the District Court went along with the magistrate, and ordered the State to make further response. Id., at 98. The State then submitted affidavits from the acting foreman of the grand jury that indicted respondents and from the state trial judge who appointed the foreman. Id., at 102-106, 108-113. On the basis of these affidavits, the petitions were ordered dismissed. Id., at 121-122.
8
The District Judge, however, granted the certificate of probable cause required by Fed.Rule App.Proc. 22(b), App. 126-127, and respondents appealed to the United States Court of Appeals for the Sixth Circuit.
9
The Court of Appeals reversed. 570 F.2d 129 (1978). That court deemed it unnecessary to resolve respondents' contentions concerning discrimination in the selection of the grand jury venire, id., at 134, since it found sufficient grounds to reverse with respect to the selection of the foreman. It remanded the case with instructions for the entry of an order that respondents' murder convictions be set aside and that respondents be reindicted within 60 days or be released. Id., at 137.
10
We granted certiorari to consider the foreman issue. 439 U.S. 816, 99 S.Ct. 76, 58 L.Ed.2d 107 (1978).
II
11
We initially address two arguments that, aside from the specific facts of this particular case, go to the question whether a federal court, as a matter of policy, should hear claims of racial discrimination in the selection of a grand jury when reviewing a state conviction. First, we consider whether claims of grand jury discrimination should be considered harmless error when raised, on direct review or in a habeas corpus proceeding, by a defendant who has been found guilty beyond a reasonable doubt by a properly constituted petit jury at a trial on the merits that was free from other constitutional error. Second, we consider the related question whether such claims should be cognizable any longer on federal habeas corpus in light of the decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
A.
12
For nearly a century, this Court in an unbroken line of cases has held that "a criminal conviction of a Negro cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which Negroes were excluded by reason of their race." Alexander v. Louisiana, 405 U.S. 625, 628, 92 S.Ct. 1221, 1224, 31 L.Ed.2d 536 (1972); Bush v. Kentucky, 107 U.S. 110, 119, 1 S.Ct. 625, 633, 27 L.Ed. 354 (1883); Neal v. Delaware, 103 U.S. 370, 394, 26 L.Ed. 567 (1881). See Castaneda v. Partida, 430 U.S. 482, 492-495, and n. 12, 97 S.Ct. 1272, 1278-1281, and n. 12, 51 L.Ed.2d 498 (1977).3 A criminal defendant "is entitled to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice." Alexander v. Louisiana, 405 U.S., at 628-629, 92 S.Ct., at 1224. Accordingly, where sufficient proof of discrimination in violation of the Fourteenth Amendment has been made out and not rebutted, this Court uniformly has required that the conviction be set aside and the indictment returned by the unconstitutionally constituted grand jury be quashed. E. g., Hill v. Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86 L.Ed. 1559 (1942).4
13
Until today, only one Justice among those who have served on this Court in the 100 years since Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), has departed from this line of decisions. In his dissent in Cassell v. Texas, 339 U.S. 282, 298, 70 S.Ct. 629, 637, 94 L.Ed. 839 (1950), Mr. Justice Jackson voiced this lone objection by arguing that federal courts should not set aside criminal convictions solely on the ground that discrimination occurred in the selection of the grand jury, so long as no constitutional impropriety tainted the selection of the petit jury, and guilt was established beyond a reasonable doubt at a trial free from constitutional error. The Cassell dissent noted that discrimination in the selection of the grand jury had nothing to do with the fairness of the trial or the guilt or innocence of the defendant, and that reversals based on such discrimination conflicted "with another principle important to our law, viz., that no conviction should be set aside for errors not affecting substantial rights of the accused." Id., at 299, 70 S.Ct., at 637.
14
Mr. Justice Jackson could discern no reason to permit this conflict. In the first place, he noted, the convicted defendant suffered no possible prejudice. Unlike the petit jury, the grand jury sat only to determine probable cause to hold the defendant for trial. It did not consider the ultimate issue of guilt or innocence. Once a trial court heard all the evidence and determined it was sufficient to submit the case to the trier of fact, and once that trier determined that the defendant was guilty beyond a reasonable doubt, Mr. Justice Jackson believed that it "hardly lies in the mouth of a defendant . . . to say that his indictment is attributable to prejudice." Id., at 302, 70 S.Ct., at 639. "Under such circumstances," he concluded, "it is frivolous to contend that any grand jury, however constituted, could have done its duty in any way other than to indict." Ibid. Nor did Mr. Justice Jackson believe the Strauder line of cases to be justified by a need to enforce the rights of those discriminated against to sit on grand juries without regard to their race. He pointed out that Congress had made it a crime to discriminate in this manner, 18 U.S.C. § 243,5 and that civil remedies at law and equity were available to members of the class discriminated against. Accordingly, Mr. Justice Jackson would have held that "discrimination in selection of the grand jury . . ., however great the wrong toward qualified Negroes of the community, was harmless to this defendant," 339 U.S., at 304, 70 S.Ct., at 640, and would have left enforcement of Fourteenth Amendment interests to criminal prosecutions under § 243 and civil actions instituted by such "qualified Negroes."
15
This position for the first time has attracted the support of additional Members of the Court, as expressed in the separate opinion of Mr. Justice STEWART in this case. Echoing the Cassell dissent, this separate opinion asserts that "the time has come to acknowledge that Mr. Justice Jackson's [position] is unanswerable, and to hold that a defendant may not rely on a claim of grand jury discrimination to overturn an otherwise valid conviction." Post, at 575. It argues that the conviction of the defendant should be a break in the chain of events that preceded it, and notes that where Fourth or Fifth Amendment rights are violated, the evidence illegally obtained is suppressed, but "the prosecution is not barred altogether." Post, at 576-577 n. 4. The separate opinion believes that any other interests that are harmed by grand jury discrimination may be protected adequately by prosecutions, civil actions, or pretrial remedies available to defendants. In such circumstances, it finds the heavy social cost entailed in a reversal unjustified, especially in light of the fact the defendant himself has suffered no prejudice. Accordingly, the separate opinion would not recognize, either on direct review or on an application for a writ of habeas corpus, a claim of grand jury discrimination as a valid ground for setting aside a criminal conviction.6
16
This Court, of course, consistently has rejected this argument. It has done so implicitly in those cases in which it has reaffirmed the Strauder principle in the context of grand jury discrimination. E. g., Reece v. Georgia, 350 U.S. 85, 87, 76 S.Ct. 167, 169, 100 L.Ed. 77 (1955); Alexander v. Louisiana, 405 U.S., at 628, 92 S.Ct., at 1224. And it has done so expressly, where the argument was pressed in the guise of the claim that the constitutional rights of the defendant are not violated by grand jury discrimination since an indictment only brings that defendant before the petit jury for trial. Pierre v. Louisiana, 306 U.S. 354, 356-358, 59 S.Ct. 536, 537-539, 83 L.Ed. 757 (1939). See Cassell v. Texas, 339 U.S., at 290, 70 S.Ct., at 633 (Frankfurter, J., concurring); id., at 296, 70 S.Ct. at 636 (Clark, J., concurring). We decline now to depart from this longstanding consistent practice, and we adhere to the Court's previous decisions.
17
Discrimination on account of race was the primary evil at which the Amendments adopted after the War Between the States, including the Fourteenth Amendment, were aimed. The Equal Protection Clause was central to the Fourteenth Amendment's prohibition of discriminatory action by the State: it banned most types of purposeful discrimination by the State on the basis of race in an attempt to lift the burdens placed on Negroes by our society. It is clear from the earliest cases applying the Equal Protection Clause in the context of racial discrimination in the selection of a grand jury, that the Court from the first was concerned with the broad aspects of racial discrimination that the Equal Protection Clause was designed to eradicate, and with the fundamental social values the Fourteenth Amendment was adopted to protect, even though it addressed the issue in the context of reviewing an individual criminal conviction. Thus, in the first case establishing the principles that have guided the Court's decisions these 100 years, the Court framed the issue in terms of the larger concerns with racial discrimination in general that it understood as being at the core of the Fourteenth Amendment:
18
"The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others. . . . [T]he apprehension that through prejudice [such persons] might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the national government the power to enforce the provision that no State shall deny to them the equal protection of the laws." Strauder v. West Virginia, 100 U.S., at 308, 309.
19
Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice. Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process. The exclusion from grand jury service of Negroes, or any group otherwise qualified to serve, impairs the confidence of the public in the administration of justice. As this Court repeatedly has emphasized, such discrimination "not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government." Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940) (footnote omitted). The harm is not only to the accused, indicted as he is by a jury from which a segment of the community has been excluded. It is to society as a whole. "The injury is not limited to the defendant—there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts." Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946).
20
Because discrimination on the basis of race in the selection of members of a grand jury thus strikes at the fundamental values of our judicial system and our society as a whole, the Court has recognized that a criminal defendant's right to equal protection of the laws has been denied when he is indicted by a grand jury from which members of a racial group purposefully have been excluded. E. g., Neal v. Delaware, 103 U.S., at 394; Reece v. Georgia, 350 U.S., at 87, 76 S.Ct., at 169. For this same reason, the Court also has reversed the conviction and ordered the indictment quashed in such cases without inquiry into whether the defendant was prejudiced in fact by the discrimination at the grand jury stage. Since the beginning, the Court has held that where discrimination in violation of the Fourteenth Amendment is proved, " '[t]he court will correct the wrong, will quash the indictment[,] or the panel[;] or, if not, the error will be corrected in a superior court,' and ultimately in this court upon review," and all without regard to prejudice. Neal v. Delaware, 103 U.S., at 394, quoting Virginia v. Rives, 100 U.S. 313, 322, 25 L.Ed. 667 (1880). See Bush v. Kentucky, 107 U.S., at 119, 1 S.Ct., at 633. The Court in Hill v. Texas, 316 U.S., at 406, 62 S.Ct., at 1162, stated:
21
"[N]o state is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty. Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749, 50 A.L.R. 1243. It is the state's function, not ours, to assess the evidence against a defendant. But it is our duty as well as the state's to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained. Equal protection of the laws is something more than an abstract right. It is a command which the state must respect, the benefits of which every person may demand. Not the least merit of our constitutional system is that its safeguards extend to all—the least deserving as well as the most virtuous."7
22
We do not deny that there are costs associated with this approach. But the remedy here is in many ways less drastic than in situations where other constitutional rights have been violated. In the case of a Fourth or Fifth Amendment violation, the violation often results in the suppression of evidence that is highly probative on the issue of guilt. Here, however, reversal does not render a defendant "immune from prosecution," nor is a subsequent reindictment and reprosecution "barred altogether," as Mr. Justice STEWART's opinion suggests. Post, at 576-577 n. 4. "A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for [the State] may indict and try him again by the procedure which conforms to constitutional requirements." Hill v. Texas, 316 U.S., at 406, 62 S.Ct., at 1162. And in that subsequent prosecution, the State remains free to use all the proof it introduced to obtain the conviction in the first trial.
23
In any event, we believe such costs as do exist are outweighed by the strong policy the Court consistently has recognized of combating racial discrimination in the administration of justice. And regardless of the fact that alternative remedies remain to vindicate the rights of those members of the class denied the chance to serve on grand juries, the fact is that permitting challenges to unconstitutional state action by defendants has been, and is, the main avenue by which Fourteenth Amendment rights are vindicated in this context. Prosecutions under 18 U.S.C. § 243 have been rare, and they are not under the control of the class members and the courts. Civil actions, expensive to maintain and lengthy, have not often been used. And even assuming that some type of pretrial procedure would be open to a defendant, e. g., petitioning for a writ of habeas corpus in federal court, under such a procedure the vindication of federal constitutional rights would turn on a race to obtain a writ before the State could commence the trial.
24
We think the better view is to leave open the route that over time has been the main one by which Fourteenth Amendment rights in the context of grand jury discrimination have been vindicated. For we also cannot deny that, 114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole. Perhaps today that discrimination takes a form more subtle than before. But it is not less real or pernicious. We therefore decline "to reverse a course of decisions of long standing directed against racial discrimination in the administration of justice," Cassell v. Texas, 339 U.S., at 290, 70 S.Ct., at 633 (Frankfurter, J., concurring), and we adhere to our position that discrimination in the selection of the grand jury remains a valid ground for setting aside a criminal conviction.8
B
25
The State makes the additional argument that the decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), should be extended so as to foreclose a grant of federal habeas corpus relief to a state prisoner on the ground of discrimination in the selection of the grand jury. Mr. Justice POWELL, dissenting in Castaneda v. Partida, 430 U.S., at 508 n. 1, 97 S.Ct., at 1287 n. 1, joined by THE CHIEF JUSTICE and Mr. Justice REHNQUIST, and at least inferentially by Mr. Justice STEWART, id., at 507, 97 S.Ct., at 1286, specifically observed that a "strong case may be made that claims of grand jury discrimination are not cognizable on federal habeas corpus after Stone v. Powell." In this connection, Mr. Justice POWELL noted that a claim by a convicted prisoner of grand jury discrimination goes only to the "moot determination by the grand jury that there was sufficient cause to proceed to trial [and not to any] flaw in the trial itself." Id., at 508 n. 1, 97 S.Ct., at 1287. He concluded that, as in Stone, "the incremental benefit of extending habeas corpus as a means of correcting unconstitutional grand jury selection procedures might be viewed as 'outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.' " 430 U.S., at 508 n. 1, 97 S.Ct., at 1287 n. 1, quoting Stone, 428 U.S., at 494, 96 S.Ct., at 3052.
26
The State echoes these arguments. It contends that habeas corpus relief should be granted only where the error alleged in support of that relief affected the determination of guilt. In this case, as in Stone v. Powell, it argues, no error affected the trial on the merits. Moreover, only a relatively minor error, involving the nonvoting foreman of the grand jury and not the entire venire, is at issue. Accordingly, following its interpretation of Stone, the State contends that the benefits derived from extending habeas relief in this case are outweighed by the costs associated with reversing a state conviction entered upon a finding of guilt beyond a reasonable doubt at a trial free from constitutional error.9
27
In Stone v. Powell, however, the Court carefully limited the reach of its opinion. It stressed that its decision to limit review was "not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally." 428 U.S., at 495 n. 37, 96 S.Ct., at 3052-3053 (emphasis in original). Rather, the Court made it clear that it was confining its ruling to cases involving the judicially created exclusionary rule, which had minimal utility when applied in a habeas corpus proceeding. "In sum," the Court concluded, it was holding "only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review." Ibid.
28
Mindful of this limited reach of Stone, we conclude that a claim of discrimination in the selection of the grand jury differs so fundamentally from application on habeas of the Fourth Amendment exclusionary rule that the reasoning of Stone v. Powell should not be extended to foreclose habeas review of such claims in federal court.
29
In the first place, claims such as those pressed by respondents in this case concern allegations that the trial court itself violated the Fourteenth Amendment in the operation of the grand jury system. In most such cases, as in this one, this same trial court will be the court that initially must decide the merits of such a claim, finding facts and applying the law to those facts. This leads us to doubt that claims that the operation of the grand jury system violates the Fourteenth Amendment in general will receive the type of full and fair hearing deemed essential to the holding of Stone. See, e. g., 428 U.S., at 494, 495 n. 37, 96 S.Ct., at 3052, 3053 n. 37. In Fourth Amendment cases, courts are called upon to evaluate the actions of the police in seizing evidence, and this Court believed that state courts were as capable of performing this task as federal habeas courts. Id., at 493-494, n. 35, 96 S.Ct., at 3052 n. 35. But claims that the state judiciary itself has purposely violated the Equal Protection Clause are different. There is a need in such cases to ensure that an independent means of obtaining review by a federal court is available on a broader basis than review only by this Court will permit. A federal forum must be available if a full and fair hearing of such claims is to be had.
30
Beyond this, there are fundamental differences between the claim here at issue and the claim at issue in Stone v. Powell. Allegations of grand jury discrimination involve charges that state officials are violating the direct command of the Fourteenth Amendment, and federal statutes passed under that Amendment, that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Since the first days after adoption of the Amendment, the Court has recognized that by its direct operation the Equal Protection Clause forbids the States to discriminate in the selection of members of a grand jury. This contrasts with the situation in Stone, where the Court considered application of "a judicially created remedy rather than a personal constitutional right." 428 U.S., at 495 n. 37, 96 S.Ct., at 3053. Indeed, whereas the Fourteenth Amendment by its terms always has been directly applicable to the States, the Fourth Amendment and its attendant exclusionary rule only recently have been applied fully to the States.
31
In this context, the federalism concerns that motivated the Court to adopt the rule of Stone v. Powell are not present. Federal courts have granted relief to state prisoners upon proof of the proscribed discrimination for nearly a century. See, e. g., Virginia v. Rives, 100 U.S., at 322, 25 L.Ed. 667. The confirmation that habeas corpus remains an appropriate vehicle by which federal courts are to exercise their Fourteenth Amendment responsibilities is not likely further to increase " 'friction between our federal and state systems of justice, [or impair] the maintenance of the constitutional balance upon which the doctrine of federalism is founded.' " Stone v. Powell, 428 U.S., at 491 n. 31, 96 S.Ct., at 3051, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 259, 93 S.Ct. 2041, 2064, 36 L.Ed.2d 854 (1973) (POWELL, J., concurring).
32
Further, Stone rested to a large extent on the Court's perception that the exclusionary rule is of minimal value when applied in a federal habeas proceeding. The Court there found that the deterrent value of the exclusionary rule was not enhanced by the possibility that a "conviction obtained in state court and affirmed on direct review might be overturned in collateral proceedings often occurring years after the incarceration of the defendant." 428 U.S., at 493, 96 S.Ct., at 3052. Nor did the Court believe that the "overall educative effect of the exclusionary rule would be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions." Ibid. And it could not find any basis to say that federal review would reveal flaws in the search or seizure that had gone undetected at trial or on appeal. Ibid. In these circumstances, the Court concluded that the benefits of applying the Fourth Amendment exclusionary rule on federal habeas did not outweigh the costs associated with it.
33
None of this reasoning has force here. Federal habeas review is necessary to ensure that constitutional defects in the state judiciary's grand jury selection procedure are not overlooked by the very state judges who operate that system. There is strong reason to believe that federal review would indeed reveal flaws not appreciated by state judges perhaps too close to the day-to-day operation of their system to be able properly to evaluate claims that the system is defective. The educative and deterrent effect of federal review is likely to be great, since the state officials who operate the system, judges or employees of the judiciary, may be expected to take note of a federal court's determination that their procedures are unconstitutional and must be changed.
34
We note also that Stone rested to an extent on the Court's feeling that state courts were as capable of adjudicating Fourth Amendment claims as were federal courts. But where the allegation is that the state judiciary itself engages in discrimination in violation of the Fourteenth Amendment, there is a need to preserve independent federal habeas review of the allegation that federal rights have been transgressed. As noted above, in this case, the very judge whose conduct respondents challenged decided the validity of that challenge.
35
It is also true that the concern with judicial integrity, deprecated by the Court in Stone in the context of habeas review of exclusionary rule issues, is of much greater concern in grand jury discrimination cases. The claim that the court has discriminated on the basis of race in a given case brings the integrity of the judicial system into direct question. The force of this justification for extending federal habeas review cannot be said to be minimal where allegations of improper judicial conduct are made.
36
As pointed out in our discussion of the Cassell dissent, it is tempted to exaggerate the costs associated with quashing an indictment returned by an improperly constituted grand jury. In fact, the costs associated with quashing an indictment are significantly less than those associated with suppressing evidence. Evidence suppressed under the Fourth Amendment may not be used by the State in any new trial, though it be highly probative on the issue of guilt. In contrast, after a federal court quashes an indictment, the State remains free to use at a second trial any and all evidence it employed at the first proceeding. A prisoner who is guilty in fact is less likely to go free, therefore, than in cases involving the exclusionary rule. Hill v. Texas, 316 U.S., at 406, 62 S.Ct., at 1162. Providing federal habeas corpus relief is, as a consequence, less of an intrusion on the State's system of criminal justice than was the case in Stone.
37
Finally, we note that the constitutional interests that a federal court adjudicating a claim on habeas of grand jury discrimination seeks to vindicate are substantially more compelling than those at issue in Stone. As noted above, discrimination on account of race in the administration of justice strikes at the core concerns of the Fourteenth Amendment and at fundamental values of our society and our legal system. Where discrimination that is "at war with our basic concepts of a democratic society and a representative government," Smith v. Texas, 311 U.S., at 130, 61 S.Ct., at 165, infects the legal system, the strong interest in making available federal habeas corpus relief outweighs the costs associated with such relief.
38
We therefore decline to extend the rationale of Stone v. Powell to a claim of discrimination in the selection of the grand jury that indicts the habeas petitioner. And we hold that federal habeas corpus relief remains available to provide a federal forum for such claims.
III
39
Notwithstanding these holdings that claims of discrimination in the selection of members of the grand jury are cognizable on federal habeas corpus, and will support issuance of a writ setting aside a state conviction and ordering the indictment quashed, it remains true that to be entitled to habeas relief the present respondents were required to prove discrimination under the standards set out in this Court's cases. That is, "in order to show that an equal protection violation has occurred in the context of grand jury [foreman] selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs." Castaneda v. Partida, 430 U.S., at 494, 97 S.Ct., at 1280. Specifically, respondents were required to prove their prima facie case with regard to the foreman as follows:
40
"The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. . . . Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as [foreman], over a significant period of time. . . . This method of proof, sometimes called the 'rule of exclusion,' has been held to be available as a method of proving discrimination in jury selection against a delineated class. . . . Finally . . . a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing." Ibid.
41
Only if respondents established a prima facie case of discrimination in the selection of the foreman in accord with this approach, did the burden shift to the State to rebut that prima facie case. Id., at 495, 97 S.Ct., at 1280.
42
There is no question, of course, that respondents, as Negroes, are members of a group recognizable as a distinct class capable of being singled out for different treatment under the laws. Id., at 494, 97 S.Ct., at 1280; Hernandez v. Texas, 347 U.S. 475, 478-479, 74 S.Ct. 667, 670-671, 98 L.Ed. 866 (1954). And one may assume for purposes of this case that the Tennessee method of selecting a grand jury foreman is susceptible of abuse. Accordingly, we turn to a consideration of the evidence offered by respondents in their attempt to prove sufficient underrepresentation to make out a prima facie case.
43
Respondents' case at the hearing on the plea in abatement consisted in its entirety of the following:
44
Respondents first called as witnesses the three Tipton County jury commissioners. These commissioners, all white, testified only as to the selection of the grand jury venire. In view of the Tennessee method of foreman selection, n. 2, supra, they did not testify, and could hardly be expected to have testified, as to the method of selection of foremen; neither did any of them refer to the race of any past foremen.
45
Respondents next called two former foremen and the current foreman of the Tipton County grand jury. The first, Frank McBride, testified that he was a lifelong resident of the county, but there was no evidence as to his age and thus as to the years he lived in the county. McBride stated that he had served as foreman, "ten or twelve years ago . . . for five or six years . . . and then about two or three times since then, just for one session of Court." App. 17. In answer to respondents' inquiry whether he had "ever known of any foreman that was a black man," McBride said "No, sir." Id., at 18. The second past foreman, Peyton J. Smith, stated that he had resided in Tipton County all his life but, again, no inquiry was made to as to how long that had been. Smith testified that he had served as foreman "for several years back in the early '50's, and . . . several times since then on occasion of the illness of the foreman at that time." Id., at 20. Like McBride, Smith answered "No" when asked whether he had ever known of a Negro foreman. Ibid. Jimmy Neifeh, the current foreman, testified that he had served for approximately two years and that he did not know "if there was or if there wasn't" ever a Negro foreman of the county grand jury. Id., at 25. No inquiry was made of Naifeh as to the length of time he had lived in the county.
46
Respondents then called 11 of the 12 grand jurors10 (other than the foreman) who were serving when respondents were indicted. Not one testified relative to the selection of the foreman or the race of past foremen. Their testimony, individually and collectively, was to the effect that one among their number was a Negro; that they had heard only one witness, a deputy sheriff, on respondents' case; that no one voiced any prejudice or hostility toward respondents because of their race; and that there was no consideration of the fact that respondents were Negroes. Indeed, when some were asked whether they knew whether respondents were Negroes, they answered in the negative. Id., at 26-32.
47
This was all the evidence respondents presented in support of their case. In rebuttal, the State called only the clerk of the trial court. He was asked no question relating to grand jury foremen, and respondents made no inquiry of him on cross-examination on that or on any other topic. Id., at 34-35.
48
Two additional facts were stressed by the State at the later federal habeas proceeding. The first was the recruitment, at the 1972 term, of temporary (and former) foreman Smith in place of regular foreman Naifeh. Smith had testified at the hearing on the plea in abatement that Naifeh "could not be here and I was asked to come and appear before this Court and the judge asked me to serve." Id., at 21. The State argued that Smith had been selected only because the judge believed Smith, in view of his experience, would be a capable temporary replacement for the regular foreman. This proper motive, the State said, negated any claim that racial discrimination played a role in the selection of Smith to be temporary foreman. The second fact was that the temporary foreman did not vote on the indictment returned against respondents, see id., at 105; this was because the other 12 had all voted to indict and the temporary foreman's vote therefore was unnecessary. Thus, the State argued, any possible error in the selection of the foreman was harmless and of no consequence to respondents.
49
In support of its argument to the federal habeas court, the State submitted the affidavit of the judge who had selected the temporary foreman and the permanent foreman, and who had presided at the hearing on the plea in abatement as well as at respondents' trial. The judge, who had served since 1966, id., at 5, a period of seven years, stated that Naifeh "was unable to serve because he was going to be out of the County at the November 1972 term." Id., at 112. The judge went on to say that he had appointed Smith temporary foreman because Smith had had experience "and does a good job as such foreman." The affidavit concluded:
50
"In my five counties, I do not have a black grand jury foreman, although I have a black member of my Jury Commission in one county. Most all of my Grand Juries and Petit Juries have sizeable numbers of blacks on them, both men and women. I don't appoint Grand Jury Foreman very often because when their two year term expires, I usually reappoint them, thus they serve a long time and the problem doesn't come up very often. I don't think that I have really given any thought to appointing a black foreman but I have no feeling against doing so." Id., at 113.
51
It was on the basis of this material in rebuttal that the District Court declined to issue the writs of habeas corpus. It found that no racial discrimination had been proved, since the foreman had been "selected for other than racial reasons, and . . . did not vote at the time the indictment was rendered." Id., at 122.
52
The Court of Appeals, in reversing, conceded: "The facts elicited at the pretrial hearing were meager." 570 F.2d, at 132. It went on, however, to note: "There has never been a black foreman or forewoman of a grand jury in Tipton County according to the recollections of the trial judge, three jury commissioners, and three former foremen." Id., at 134-135. This fact, the court concluded, coupled with the opportunity for discrimination found to be inherent in the selection system, was sufficient to make out a prima facie case of discrimination in the selection of the foreman. And the Court of Appeals held that the State had failed to rebut that case. The exculpatory affidavit of the judge asserting a benign reason for the selection of the foreman, in the court's view, could not serve to rebut respondents' case in the absence of proof that there were no qualified Negroes to serve as foreman. The fact the foreman did not vote, the court held, similarly did not support the District Court's judgment, since the broad powers exercised by the foreman in conducting the grand jury's proceedings meant that respondents could have been prejudiced even though the foreman had not cast a vote against them.
IV
53
In reaching our conclusion in disagreement with the Court of Appeals, we note first that that court seems to have overemphasized and exaggerated the evidence in support of its conclusion that there had "never been a black foreman or forewoman of a grand jury in Tipton County." The Court of Appeals believed this conclusion had been proved by the recollections of the trial judge, the testimony of three jury commissioners, and the testimony of three former foremen. Ibid. But recollections of the trial judge—by which the Court of Appeals presumably meant the affidavit filed in Federal District Court by the trial judge formed no part of the case put on by respondents. (Indeed, the Court of Appeals seems to have recognized this in another portion of its opinion, where it considered the state trial judge's affidavit to have been offered in rebuttal of the respondents' asserted prima facie case.) And the jury commissioners gave no testimony whatsoever relating to foremen of the grand jury, to the method of selecting foremen, or to the race of past foremen. Thus, respondents' prima facie case as to discrimination in the selection of grand jury foremen rested entirely and only on the testimony of the three foremen. On the record of this case, it is that testimony alone upon which respondents' allegations of discrimination must stand or fall.
54
The testimony of the three foremen, however, did not establish respondents' case. First, it cannot be said that the testimony covered any significant period of time. Smith testified that he served in the early 1950's and occasionally thereafter, but except for the fact that Smith was resident in the county, and for his negative answer to the question whether he had "known of any foreman that has been black," there is nothing in the record to show that Smith knew who had served as foremen in the interim years when he was not serving. Similarly, McBride testified that he had served for 5 or 6 years some 10 or 12 years prior to the 1973 hearing, and on two or three occasions since then, and had not known of any Negro's having acted as foreman of the grand jury, but he gave no indication that he was knowledgeable as to the years not covered by this service. Naifeh's testimony was the weakest from respondents' point of view. He had served as foreman for only two years prior to the hearing, and he did not know one way or the other whether a Negro had served as foreman of the county grand jury. Thus, even assuming that the period 1951-1973 is the significant one for purposes of this case, respondents' evidence covered only portions of that time and left a number of years during that period about which no evidence whatsoever was offered.
55
Moreover, such evidence as was provided by the testifying foremen was of little force. McBride and Smith simply said "No" in response to the question whether either had ever known of any Negro foreman. Naifeh could give no information on the point. There thus was no positive testimony that no Negro had ever served during the critical period of time; the only testimony was that three foremen who served for parts of that period had no knowledge of any. And there is no indication in the record that Smith, McBride, and Naifeh necessarily would have been aware had a Negro ever served as foreman.
56
Most important, there was no evidence as to the total number of foremen appointed by the judges in Tipton County during the critical period of time. Absent such evidence, it is difficult to say that the number of Negroes appointed foreman, even if zero, is statistically so significant as to make out a case of discrimination under the "rule of exclusion." The only testimony in the record concerning Negro population of the county was to the effect that it was approximately 30%.11 App. 11. Given the fact that any foreman was not limited in the number of 2-year terms he could serve, and given the inclination on the part of the judge to reappoint, it is likely that during the period in question only a few persons in actual number served as foremen of the grand jury. If the number was small enough, the disparity between the ratio of Negroes chosen to be foreman to the total number of foremen, and the ratio of Negroes to the total population of the county, might not be "sufficiently large [that] it is unlikely that [this disparity] is due solely to chance or accident." Castaneda v. Partida, 430 U.S., at 494, n. 13, 97 S.Ct., at 1280. Inasmuch as there is no evidence in the record of the number of foremen appointed, it is not possible to perform the calculations and comparisons needed to permit a court to conclude that a statistical case of discrimination had been made out, id., at 496-497, n. 17, 97 S.Ct., at 1281-1282, n. 17, and proof under the "rule of exclusion" fails. Id., at 494, n. 13, 97 S.Ct., at 1280, n. 13; see Hernandez v. Texas, 347 U.S., at 480, 74 S.Ct., at 671.12
57
Comparison of the proof introduced by respondents in this case with the proof offered by defendants in cases where this Court has found that a prima facie case was made out is most instructive. In Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), for example, the defendant proved his case by witnesses who testified as to the number of Negroes called for jury duty. The evidence in support of the prima facie case was summarized by the Court:
58
"It appeared that no negro had served on any grand or petit jury in that county within the memory of witnesses who had lived there all their lives. Testimony to that effect was given by men whose ages ran from fifty to seventy-six years. Their testimony was uncontradicted. It was supported by the testimony of officials. The clerk of the jury commission and the clerk of the circuit court had never known of a negro serving on a grand jury in Jackson County. The court reporter, who had not missed a session in that county in twenty-four years, and two jury commissioners testified to the same effect. One of the latter, who was a member of the commission which made up the jury roll for the grand jury which found the indictment, testified that he had 'never known of a single instance where any negro sat on any grand or petit jury in the entire history of that county.' " Id., at 591, 55 S.Ct., at 581.
59
See Castaneda v. Partida, 430 U.S., at 495-496, 97 S.Ct., at 1280-1281; Eubanks v. Louisiana, 356 U.S. 584, 586-587, 78 S.Ct. 970, 972-973, 2 L.Ed.2d 991 (1958); Reece v. Georgia, 350 U.S., at 87-88, 76 S.Ct., at 169-170; Hill v. Texas, 316 U.S., at 402-404, 62 S.Ct., at 1160-1161.
60
The comparison of the evidence in Norris and in the other cited cases stands in stark contrast with the evidence in the present case. All that we have here to establish the prima facie case is testimony from two former foremen and from a briefly serving present foreman that they had no knowledge of a Negro's having served. There is no evidence that these foremen were knowledgeable about years other than the ones in which they themselves served. And there is no evidence to fill in the gaps for the years they did not serve. In contrast to Norris, there is no direct assertion that for long periods of time no Negro had ever served, or that officials with access to county records could state that none had ever served. And there is no basis in the record upon which to determine that, even assuming no Negro had ever served as foreman, that fact statistically was so significant as to support an inference that the disparity between the Negroes serving and the Negro population in the county was the result of discrimination in violation of the Fourteenth Amendment.
61
It thus was error for the District Court to have concluded initially that respondents made out a prima facie case. And it was error, as well, for the Court of Appeals to have reached the same final conclusion. The State, however, under questioning at oral argument, tended to concede that the finding that a prima facie case had been established was correct ("we did not contest that"), Tr. of Oral Arg. 6-7, and did the same in its brief, although there it described the proof as "very questionable." Brief for Petitioner 26.
62
Normally, a flat concession by the State might be given effect. But the inadequacy of respondents' proof is plain. And the error of the Court of Appeals in exaggerating the extent of that proof is equally plain. We decline to overlook so fundamental a defect in respondents' case.13
63
Accordingly, we hold that, as a matter of law, respondents failed to make out a prima facie case of discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment with regard to the selection of the grand jury foreman. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
64
It is so ordered.
65
Mr. Justice REHNQUIST, concurring in part.
66
I fully agree with, and have joined, the separate opinions of my Brothers STEWART and POWELL concurring in the judgment in this case. For the separate reasons they state, neither of them would reach the merits of the claim of grand jury discrimination which the Court decides. Since, however, a majority of the Court rejects these views, I join Parts I, III, and IV of the Court's opinion.
67
Mr. Justice STEWART, with whom Mr. Justice REHNQUIST joins, concurring in the judgment.
68
The respondents were found guilty beyond a reasonable doubt after a fair and wholly constitutional jury trial. Why should such persons be entitled to have their convictions set aside on the ground that the grand jury that indicted them was improperly constituted? That question was asked more than 25 years ago by Mr. Justice Jackson in Cassell v. Texas, 339 U.S. 282, 298, 70 S.Ct. 629, 637, 94 L.Ed. 839 (dissenting opinion). It has never been answered.1 I think the time has come to acknowledge that Mr. Justice Jackson's question is unanswerable, and to hold that a defendant may not rely on a claim of grand jury discrimination to overturn an otherwise valid conviction.
69
* A grand jury proceeding "is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person." United States v. Calandra, 414 U.S. 338, 343-344, 94 S.Ct. 613, 618, 38 L.Ed.2d 561. It is not a proceeding in which the guilt or innocence of a defendant is determined, but merely one to decide whether there is a prima facie case against him. Any possible prejudice to the defendant resulting from an indictment returned by an invalid grand jury thus disappears when a constitutionally valid trial jury later finds him guilty beyond a reasonable doubt.2 In short, a convicted defendant who alleges that he was indicted by a discriminatorily selected grand jury is complaining of an antecedent constitutional violation that could have had no conceivable impact on the fairness of the trial that resulted in his conviction.
70
It is well settled that deprivations of constitutional rights that occur before trial are no bar to conviction unless there has been an impact upon the trial itself.3 A conviction after trial, like a guilty plea, "represents a break in the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235. See United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510; cf. Stroble v. California, 343 U.S. 181, 197, 72 S.Ct. 599, 607, 96 L.Ed. 872 ("illegal acts of state officials prior to trial are relevant only as they bear on petitioner's contention that he has been deprived of a fair trial").
71
The cases in this Court dealing with unlawful arrest are particularly instructive. Unconstitutional arrests are unreasonable seizures of the person that violate the Fourth and Fourteenth Amendments. E. g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Yet, an "illegal arrest or detention does not void a subsequent conviction." Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54. In Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, for example, a defendant had been forcibly abducted from one State and brought to another to stand trial, but the trial itself was fair, and the Court upheld his conviction. See also Mahon v. Justice, 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283; Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421.4
72
The cases in this Court specifically dealing with grand jury proceedings are equally instructive. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, the Court sustained the conviction of a defendant who had sought to dismiss the charges against him on the ground that the indictment had been based exclusively upon inadmissible hearsay evidence. See also Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021. In Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321, the Court held that a defendant could not avoid trial and conviction on the ground that the indictment had been procured by evidence obtained in violation of the Fifth Amendment. "[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence, . . . or even on the basis of information obtained in violation of a defendant's Fifth Amendment privilege against self-incrimination." United States v. Calandra, supra, 414 U.S., at 345, 94 S.Ct., at 618. Cf. Gelbard v. United States, 408 U.S. 41, 60, 92 S.Ct. 2357, 2367, 33 L.Ed.2d 179 ("The 'general rule' . . . is that a defendant is not entitled to have his indictment dismissed before trial simply because the Government 'acquire[d] incriminating evidence in violation of the [rule],' even if the 'tainted evidence was presented to the grand jury.' "); United States v. Blue, supra, 384 U.S., at 255 n. 3, 86 S.Ct. 1416 n. 3.
II
73
A person who has been indicted on the basis of incompetent or illegal evidence has suffered demonstrable prejudice. By contrast, the prejudice suffered by a defendant who has been indicted by an unconstitutionally chosen grand jury is speculative at best, and more likely nonexistent. But there are, of course, other interests implicated when a State systematically excludes qualified Negroes from grand jury service. Such discrimination denies Negroes the right to participate equally in the responsibilities of citizenship. The compelling constitutional interest of our Nation in eliminating all forms of racial discrimination requires that no group of qualified citizens be excluded from participation as either grand or petit jurors in the administration of justice.
74
These interests can be fully vindicated, however, by means other than setting aside valid criminal convictions. This Court has held, for example, that Negroes can obtain injunctive relief to remedy unconstitutional exclusion from grand or petit jury service. Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549; Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567. That remedy has the advantage of allowing the members of the class actually injured by grand jury discrimination to vindicate their rights without the heavy societal cost entailed when valid criminal convictions are overturned.5 Moreover, Congress has made it a criminal offense for a public official to exclude any person from a grand or petit jury on the basis of his or her race. 18 U.S.C. § 243.6 Defendants may also have pretrial remedies against unlawful indictments. But, as Mr. Justice Jackson stated in the Cassell case, "[i]t hardly lies in the mouth of a defendant whom a fairly chosen trial jury has found guilty beyond reasonable doubt, to say that his indictment is attributable to prejudice." 339 U.S., at 302, 70 S.Ct., at 639.
75
For all these reasons, I believe that a claim of discrimination in the selection of a grand jury or its foreman is not a ground for setting aside a valid criminal conviction. Accordingly, I concur only in the judgment.
76
Mr. Justice POWELL, with whom Mr. Justice REHNQUIST joins, concurring in the judgment.
77
I agree that respondents' convictions should not be overturned. As the Court holds, respondents failed to show a prima facie case of discrimination in the selection of the foreman of the grand jury that indicted them. A more fundamental reason exists, however, for reversing the judgment of the Court of Appeals. Respondents were found guilty of murder beyond a reasonable doubt by a petit jury whose composition is not questioned, following a trial that was fair in every respect. Furthermore, respondents were given a full and fair opportunity to litigate in the state courts their claim of discrimination. In these circumstances, allowing an attack on the selection of the grand jury in this case is an abuse of federal habeas corpus.
78
Whenever a federal court is called upon by a state prisoner to issue a writ of habeas corpus, it is asked to do two things that should be undertaken only with restraint and respect for the way our system of justice is structured. First, as one court of general jurisdiction, it is requested to entertain a collateral attack upon the final judgment of another court of general jurisdiction. Second, contrary to principles of federalism, a lower federal court is asked to review not only a state trial court's judgment, but almost invariably the judgment of the highest court of the State as well.1 These considerations prompt one to inquire, more critically than this Court ever has, whether it is appropriate to allow the use of habeas corpus by state prisoners who do not seek to protect their personal interest in the justness of their convictions.
79
* The history and purpose of the writ of habeas corpus do not support the application of the writ suggested by five Members of the Court today. Originally, this writ was granted only when the criminal trial court had been without jurisdiction to entertain the action. See, e. g., Ex parte Watkins, 3 Pet. 193, 28 U.S. 193, 202, 7 L.Ed. 650 (1830); Schechtman v. Foster, 172 F.2d 339 (CA2 1949), cert. denied, 339 U.S. 924, 70 S.Ct. 613, 94 L.Ed. 1346 (1950); Schneckloth v. Bustamonte, 412 U.S. 218, 254, 93 S.Ct. 2041, 2061, 36 L.Ed.2d 854 (1973) (POWELL, J., concurring); Oaks, Legal History in the High Court—Habeas Corpus, 64 Mich.L.Rev. 451, 468 (1966); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 466 (1963) (hereinafter Bator). Subsequently, the scope of the writ was modestly expanded to encompass those cases where the defendant's federal constitutional claims had not been considered in the state-court proceeding. See Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915). In recent years, this Court has extended habeas corpus far beyond the historical uses to which the writ was put. Today, federal habeas is granted in a variety of situations where, although the trial court plainly had jurisdiction over the case, and the defendant's constitutional claims were fully and fairly considered by the state courts, some sort of constitutional error is found to have been committed. E. g., Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); see Fay v. Noia, 372 U.S. 391, 449-463, 83 S.Ct. 822, 854-862, 9 L.Ed.2d 837 (1963) (Harlan, J., dissenting).
80
I do not suggest that we should revert to the 19th-century conception of the writ and limit habeas corpus to those circumstances where the trial court lacked jurisdiction to enter a competent judgment. In expanding the scope of habeas corpus, however, the Court seems to have lost sight entirely of the historical purpose of the writ. It has come to accept review by federal district courts of state-court judgments in criminal cases as the rule, rather than the exception that it should be. Federal constitutional challenges are raised in almost every state criminal case, in part because every lawyer knows that such claims will provide nearly automatic federal habeas corpus review. If we now extend habeas corpus to encompass constitutional claims unrelated to the fairness of the trial in which the claimant was convicted, we will take another long step toward the creation of a dual system of review under which a defendant convicted of crime in a state court, having exhausted his remedies in the state system, repeats the process through the federal system. The extent to which this duplication already exists in this country is without parallel in any other system of justice in the world.2
81
We simply have not heeded the admonition of thoughtful scholars that federal habeas corpus should not be "made the instrument for re-determining the merits of all cases in the legal system that have ended in detention." P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 1428 (2d ed. 1973); see Bator 446-448. Today's case is an extreme example of this loss of historical perspective. In extending use of the writ to circumstances wholly unrelated to its purpose, the Court would move beyond anything heretofore decided in our cases. It is true that on a number of occasions this Court has considered state grand jury discrimination, but no prior decision fairly can be viewed as authority for federal habeas corpus review in the absence of a challenge to the fairness of the trial itself. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), and all of its progeny, involved cases in which the composition of both the grand and petit juries was challenged, so that the integrity of the trial itself was at issue. In cases such as Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939), and Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942), the question of discrimination in selection of the grand jury was presented on direct appeal, and there was no occasion to consider the propriety of federal collateral attack. Finally, in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), the charge of grand jury discrimination was before the Court on habeas corpus, but the propriety of the use of habeas corpus to assert the claim was not raised, and hence was not decided. Id., at 508 n. 1, 97 S.Ct., at 1287 n. 1 (POWELL, J., dissenting). Until today, therefore, it has been an open question whether federal habeas corpus could be granted a state prisoner solely because the prisoner's grand jury was discriminatorily chosen.3
II
82
The Court makes no pretense of arguing that either the history or purpose of the writ of habeas corpus supports its extension to a case such as this, where the claimant concededly was found guilty after a fair trial. Rather, the Court looks to the policies of the Fourteenth Amendment for justification, noting that the Amendment's purpose was to eliminate racial discrimination such as respondents here allege.4 Apart from the fact that other, more appropriate means are available for attacking discrimination in the selection of grand juries,5 the Fourteenth Amendment is irrelevant to a principled determination of when the writ of habeas corpus is a proper remedy. I know of nothing in the language or history of the Fourteenth Amendment, or the civil rights statutes implementing it, that suggests some special use of the writ of habeas corpus. If, however, we are to assume that it is open to this Court to extend the writ to cases in which the guilt of the incarcerated claimant is not an issue, at least we should weigh thoughtfully the societal costs that may be involved. As some of these were fully addressed in my concurring opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1972); I now mention the principal costs only briefly.
83
Because habeas corpus is a unique remedy which allows one court of general jurisdiction to review the correctness of the judgment of another court of general jurisdiction, its exercise entails certain costs inherent whenever there is dual review. It is common knowledge that prisoner actions occupy a disproportionate amount of the time and energy of the federal judiciary. In the year ending June 30, 1978, almost 9,000 of the prisoner actions filed were habeas corpus petitions. See 1978 Annual Report of the Director of the Administrative Office of the United States Courts 76. Apart from the burden of these petitions, many of which are frivolous, collateral review can have a particularly deleterious effect upon both the deterrent and rehabilitative functions of the criminal justice system. See Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977); Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1081-1082, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting); Bator 452; Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 146 (1970).
84
Perhaps the most serious cost of extending federal habeas corpus review of state judgments is the effect upon the federal structure of our government.6 Mr. Justice Black has emphasized the importance of
85
"a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971).
86
See also National League of Cities v. Usery, 426 U.S. 833, 844, 96 S.Ct. 2465, 2470, 49 L.Ed.2d 245 (1976); Schneckloth v. Bustamonte, supra, 412 U.S., at 264-265, 93 S.Ct., at 2066-2067.
87
Nowhere has a "proper respect for state functions" been more essential to our federal system than in the administration of criminal justice. This Court repeatedly has recognized that criminal law is primarily the business of the States, and that absent the most extraordinary circumstances the federal courts should not interfere with the States' administration of that law. See, e. g., Younger v. Harris, supra; Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971).
88
The overextension of habeas corpus by federal courts does more than simply threaten the essential role of the States in our federal system. It runs afoul of the very principle of primary state jurisdiction over the criminal laws that the Court repeatedly has asserted. This interference with state operations is not merely academic. The review by a single federal district court judge of the considered judgment of a state trial court, an intermediate appellate court, and the highest court of the State, necessarily denigrates those institutions.7
B
89
The Court's expansion of our dual system of review therefore inflicts substantial costs on society, our system of justice, and our federal fabric. When the claim being vindicated on federal habeas corpus is that the individual claimant is being unjustly incarcerated, these costs are justified, for the very purpose of the Great Writ is to provide some means by which the legality of an individual's incarceration may be tested. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); McNally v. Hill, 293 U.S. 131, 136-137, 55 S.Ct. 24, 26-27, 79 L.Ed. 238 (1934); Schneckloth v. Bustamonte, 412 U.S., at 252-256, 93 S.Ct., at 2060-2063 (POWELL, J., concurring). Indeed, it is only by providing a means of releasing prisoners from custody that we can assure that no innocent person will be incarcerated, a pre-eminent objective of our criminal justice system. SeeJackson v. Virginia, 443 U.S. 307, 315-316, 99 S.Ct. 2781, 2787-2788, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 371, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring).
90
Preventing discrimination in the selection of grand juries also is a goal of high priority in our system.8 But the question is not simply, as the Court seems to think, whether the goal and the interests it serves are important. Habeas corpus is not a general writ meant to promote the social good or vindicate all societal interests of even the highest priority. The question rather is whether this ancient writ, developed by the law to serve a precise and particular purpose, properly may be employed for the furthering of the general societal goal of grand jury integrity. For the provision of indictment by grand jury does not protect innocent defendants from unjust convictions. Rather, it helps to assure that innocent persons will not be made unjustly to stand trial at all. Once a defendant is found guilty beyond a reasonable doubt by a fairly drawn petit jury, following a fair trial, he hardly can claim that it was unjust to have made him stand trial.9 Because the need to protect the innocent from incarceration is not implicated in cases such as this, the writ of habeas corpus is not an appropriate remedy. Other remedies can be, and have been, provided to protect society's interest in eliminating racial discrimination in the selection of those who are to serve on grand juries. See n. 5, supra.10
III
91
In sum, I view the Court's extension today of federal habeas corpus to be wholly at odds with the history and purpose of the writ. Furthermore, any careful analysis of the costs and benefits of the Court's approach plainly shows that habeas corpus should not be available for the vindication of claims, such as respondents' grand jury discrimination claim, that have nothing to do with the fairness of the claimant's conviction. Courts often are tempted to reach for any available remedy when they have before them a claim of intrinsic importance. In my view, however, this is an unprincipled way in which to administer the judicial process, especially when other remedies are available to protect the interests at stake. I therefore would hold that a challenge to the composition of a state prisoner's grand jury cannot be raised in a collateral federal challenge to his incarceration, provided that a full and fair opportunity was provided in the state courts for the consideration of the federal claim.
92
Mr. Justice WHITE, with whom Mr. Justice STEVENS joins, dissenting in part.
93
Although I agree with Parts I and II of the Court's opinion, I believe that a prima facie case of purposeful discrimination was made out and was not rebutted by the State. I therefore dissent from Parts III and IV and from the judgment. On the basis of the evidence presented at the evidentiary hearing in state court, the District Court concluded that respondents "appear[ed]" to have made out a prima facie case of discrimination in the selection of the foreman of the grand jury that indicted them. App. 99. However, upon the affidavits submitted by the State in response, the court concluded that in fact the foreman had been chosen for other than racial reasons, that he had not voted on the indictment, and thus that there had not been a violation of the Equal Protection Clause. Id., at 122. The Court of Appeals agreed that a prima facie case was shown, interpreting the record testimony to the effect that the recollections of those testifying were that there had never been a black chosen as foreman of a grand jury in Tipton County, and pointing out the potential for discrimination in a system which leaves the selection of the foreman to the discretion of a single judge who has not "really given any thought to appointing" a black, id., at 113. See 570 F.2d 129, 134-135 (1978). The Court of Appeals disagreed, however, that this prima facie case had been rebutted by the testimony of the selecting judge that he had "no feeling against" appointing a black to be foreman, and found irrelevant that the foreman did not vote on respondents' indictment. Id., at 131. Because we do not sit to redetermine the factfindings of lower courts and because the Court of Appeals correctly enunciated and applied the law governing proof of discrimination in the context of grand jury selection, I dissent.
94
The only difference between this case and our previous cases voiding a conviction due to discriminatory selection of members of the grand jury is that in this case it has been shown only that the grand jury foreman, who did not vote on the indictment, was chosen in a manner prohibited by the Equal Protection Clause. I agree with the Court of Appeals that given the vital importance of the foreman in the functioning of grand juries in Tennessee,1 a conviction based on an indictment where the foreman was chosen in a discriminatory fashion is void just as would be a conviction where the entire grand jury is discriminatorily selected, whether or not there is a showing of actual prejudice, see Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Bush v. Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883).
95
That this case involves only the foreman, rather than the entire grand jury, does have implications for the manner in which respondents may meet their burden of proving discrimination. In the context of racial discrimination in the selection of juries, "the systematic exclusion of Negroes is itself such an 'unequal application of the law . . . as to show intentional discrimination,' " a necessary component of any equal protection violation. Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). Generally, in those cases in which we have found unconstitutional discrimination in jury selection, those alleging discrimination have relied upon a significant statistical discrepancy between the percentage of the underrepresented group in the population and the percentage of this group called to serve as jurors, combined with a selection procedure "that is susceptible of abuse or is not racially neutral." Castaneda v. Partida, supra 430 U.S., at 494, 97 S.Ct., at 1280. See, e. g., Alexander v. Louisiana, supra, Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). Once this showing is made, the burden shifts to the State to rebut the inference of discriminatory purpose. Castaneda v. Partida, supra, 430 U.S., at 495, 97 S.Ct., at 1280. This method of proof, sometimes called the "rule of exclusion," 430 U.S., at 494, 97 S.Ct., at 1280, may not be well suited when the focus of inquiry is a single officeholder whose term lasts two full years, as is true of the Tipton County grand jury foreman. For instance, in Castaneda v. Partida, we considered statistics relating to an 11-year period showing that 39% of the 870 persons selected for grand jury duty were Hispanic, from a general population that was over 79% Hispanic. The likelihood that this statistical discrepancy could be explained on the basis of chance alone was less than 1 in 10140. See id., at 495-496, and n. 17, 97 S.Ct., at 1280-1281 and n. 17. The sample size necessarily considered in a case of discrimination in the selection of a foreman simply does not permit a statistical inference as overwhelming as that in Castaneda. During any 11-year period, there would be only five or six opportunities for selecting jury foremen in Tipton County, assuming that every foreman selected serves at least the full 2-year term.2
96
Despite the inherent difficulty of any statistical presentation with respect to discrimination in filling a particular grand jury spot, respondents nonetheless have made a strong showing of underrepresentation supporting an inference of purposeful discrimination. This Court is not in a position to reject the finding, explicitly made by the Court of Appeals and implicitly made by the District Court,3 that those who testified believed there had never been a black foreman during the period 1951-1973. See Berenyi v. Immigration Director, 385 U.S. 630, 635, 87 S.Ct. 666, 670, 17 L.Ed.2d 656 (1967); Graver Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed. 672 (1949). Assuming that 11 foreman selections were made during this period,4 the expected number of black foremen would be more than 3 and the likelihood of no blacks being chosen would be less than 1 in 50—if blacks, who constituted nearly a third of the county's population, and whites had an equal chance of being selected. I do not see how respondents could be expected to make a stronger statistical showing.5
97
In any event, any possible weakness in respondents' statistical presentation was more than overcome by the additional evidence before the District Court. First, the selection of a foreman is left to the complete discretion of a single person—the circuit judge. The potentialities for abuse in such a system are obvious, cf. Castaneda v. Partida, supra, at 497, 97 S.Ct., at 1281; Carter v. Jury Comm'n, supra; Hernandez v. Texas, 347 U.S. 475, 479, 74 S.Ct. 667, 671, 98 L.Ed. 866 (1954) ("key man" system). Moreover, the particular judge who chose the foreman of respondents' grand jury had never chosen a black in any of the five counties for which he appointed foremen over a 6-year period, App. 113. Finally, the judge himself admitted that he had never even considered appointing a black foreman. Ibid.6 Although these facts are not necessarily inconsistent with an ultimate conclusion that respondents' foreman was not chosen on racial grounds, they raise, in conjunction with the previously described statistical presentation, a strong inference of intentional racial discrimination, shifting the burden to the State. Clearly the Court of Appeals is correct that the Circuit Judge's further self-serving statement that he had "nothing against" appointing blacks is not sufficient rebuttal, see Alexander v. Louisiana, 405 U.S., at 632, 92 S.Ct., at 1226; Turner v. Fouche, 396 U.S., at 361, 90 S.Ct., at 540; Hernandez v. Texas, supra, 347 U.S., at 481-482, 74 S.Ct., at 672-673. It can hardly be said that the judge, as the official authorized by the State to appoint grand jury foremen performed his "constitutional duty . . . not to pursue a course of conduct in the administration of [his] office which would operate to discriminate in the selection of jurors on racial grounds." Hill v. Texas, 316 U.S., at 404, 62 S.Ct., at 1161.
98
Mr. Justice STEVENS, dissenting in part.
99
Mr. Justice STEWART's opinion prompts me to explain that by joining Part II of the Court's opinion I do not necessarily indicate that I would have rejected the arguments set forth in Mr. Justice Jackson's dissenting opinion in Cassell v. Texas, 339 U.S. 282, 298, 70 S.Ct. 629, 637, 94 L.Ed. 839, if I had been a Member of the Court when the issue was first addressed. But there is surely enough force to Mr. Justice BLACKMUN's reasoning to require adherence to a course of decision that has been consistently followed by this Court since 1880.
100
The doctrine of stare decisis is not a straitjacket that forecloses re-examination of outmoded rules. The doctrine does, however, provide busy judges with a valid reason for refusing to remeasure a delicate balance that has tipped in the same direction every time the conflicting interests have been weighed.
101
The stare decisis considerations that weigh heavily in my decision to join Part II of the Court's opinion also support Mr. Justice WHITE's opinion dissenting from Parts III and IV. Accordingly, I join his dissent.
*
Mr. Chief Justice BURGER and Mr. Justice REHNQUIST join only Parts I, III, and IV of the opinion, and Mr. Justice WHITE and Mr. Justice STEVENS join only Parts I and II.
1
The Constitution of Tennessee requires that any prosecution for the crimes with which respondents were charged be instituted by presentment or indictment by a grand jury. Tenn.Const., Art. I, § 14.
2
In Tennessee, the grand jury is composed of 12 grand jurors, Tenn.Code Ann. § 40-1501 (1975), and a foreman or forewoman who "shall be the thirteenth member of each grand jury organized during his term of office, having equal power and authority in all matters coming before the grand jury with the other members thereof." § 40-1506 (Supp.1978). The foreman or forewoman is appointed for a term of two years by the judge of the court having criminal jurisdiction in the county. Ibid. There is no limitation on reappointment. The foreman or forewoman must be at least 25 years of age, "shall be a good and lawful man or woman," and possess all the other qualifications required of Tennessee jurors. § 40-1507 (Supp.1978). See § 22-101 (Supp.1978).
The members of the grand jury, other than the foreman or forewoman, are selected through the operation of the "key man" system, whereby three jury commissioners compile a list of qualified potential jurors from which the grand jurors are selected at random. See §§ 22-223 to 22-228 (Supp.1978); §§ 40-1501 and 40-1502 (1975). Twelve members of the grand jury must concur in order to return an indictment. § 40-1706 (1975). The foreman or forewoman may be 1 of the 12. Bolen v. State, 544 S.W.2d 918, 920 (Tenn.Cr.App.1976). The foreman or forewoman acts as chairman or "presiding officer." State v. Collins, 65 Tenn. 151, 153 (1873). He or she is charged with the duty of assisting the district attorney in investigating crime, may order the issuance of subpoenas for witnesses before the grand jury, may administer oaths to grand jury witnesses, must endorse every bill returned by the grand jury, and must present any indictment to the court in the presence of the grand jury. Tenn.Code Ann. §§ 40-1510, 40-1622, 40-1706, and 40-1709 (1975 and Supp.1978). The absence of the foreman's endorsement makes an indictment "fatally defective." Bird v. State, 103 Tenn. 343, 344, 52 S.W. 1076 (1899).
3
In Castaneda v. Partida, we noted that among the cases in which the Court had applied this principle in circumstances involving grand jury discrimination were Bush v. Kentucky; Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417 (1904); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964); and Alexander v. Louisiana.
4
In view of the disposition of this case on the merits, we may assume without deciding that discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire grand jury venire. See Carter v. Jury Comm'n, 396 U.S. 320, 338, 90 S.Ct. 518, 528, 24 L.Ed.2d 549 (1970).
5
Title 18 U.S.C. § 243 provides:
"No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000."
6
The State makes a variation of this argument by contending that any constitutional error that occurred in the selection of the foreman of the grand jury is "now moot procedural error which had no effect on the integrity of the trial," Brief for Petitioner 29, and so was harmless beyond a reasonable doubt in light of the subsequent conviction by a properly constituted petit jury.
7
The fact that there is no constitutional requirement that States institute prosecutions by means of an indictment returned by a grand jury, see Hurtado v. California, 110 U.S. 516, 4 S.Ct. 292, 28 L.Ed. 232 (1884), does not relieve those States that do employ grand juries from complying with the commands of the Fourteenth Amendment in the operation of those juries.
8
There is no contention in this case that respondents sought to press their challenge to the grand jury without complying with state procedural rules as to when such claims may be raised. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). Nor do they seek to press this challenge after pleading guilty. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
9
The Stone v. Powell issue was raised by petition for rehearing in the Court of Appeals. App. 142. In denying that petition, the court stated "that the issues raised therein were fully considered upon the original submission and decision of this case." Id., at 151. In its opinion denying respondents' motion for amendment of judgment, the District Court found that its original ruling denying the writ was bolstered by the decision in Stone. App., at 125.
10
The record indicates that one grand juror was in Florida at the time of the hearing. App. 27.
11
The 1970 census figure was 32.44%. Bureau of the Census, 1970 Census of Population, Characteristics of the Population, Part 44 Tennessee, Table 35, p. 124.
12
Respondents urge us to fill the gap in their proof by reference to the history of race relations in Tennessee and the fact that the State in past years practiced de jure discrimination against Negroes in many ways. We decline to do this. Reference to history texts in a case of this kind does not supply what respondents failed to prove. If it were otherwise, one alleging discrimination always would be able to prove his case simply by referring to the history of discrimination within the State. The Court's cases, however, make it clear that more is required to establish a violation of the Equal Protection Clause of the Fourteenth Amendment.
13
The State in this case apparently places no reliance on 28 U.S.C. § 2254(d), which provides in relevant part:
"[A] determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear . . .—
"(1) that the merits of the factual dispute were not resolved in the State court hearing . . . ."
See LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973).
1
In proffering an answer today, the Court relies on (1) historical precedents and (2) the duty of the courts to apply the Equal Protection Clause with special vigor in the area of racial discrimination.
As to the first ground, I can only recall what Mr. Justice Frankfurter once said: "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." Henslee v. Union Planters Bank, 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (dissenting opinion). As to the second ground, I agree wholeheartedly with the Court's general view of the Equal Protection Clause, but believe, as explained in this opinion, that that constitutional guarantee protects the victims of discrimination rather than defendants who have been convicted after fair trials by lawfully constituted juries.
2
There is no constitutional requirement that a state criminal prosecution even be initiated by a grand jury. A State is free to bring a criminal charge through information filed by a prosecutor. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 292, 28 L.Ed. 232. And the Court has held that a defendant is not entitled "to judicial oversight or review of the decision to prosecute." Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54.
3
In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, the Court vacated a conviction in a situation where a State had failed to provide a defendant with appointed counsel at the preliminary hearing. The Court's holding was premised on the opportunity of defense counsel at a preliminary hearing to develop a record that could be useful for impeachment purposes at the trial. Favorable testimony of a witness who did not appear at trial could also be preserved. In addition, the Court emphasized the ability of counsel at a preliminary hearing to discover the substance of the prosecution's case and thus to prepare an effective trial defense. Id., at 9, 90 S.Ct., at 2003.
4
Similarly, a defendant is not immune from prosecution under an outstanding indictment if he is searched in violation of his Fourth Amendment rights or interrogated in violation of his "Miranda " rights. Illegally obtained evidence may be excluded from the trial, but the prosecution is not barred altogether. "So drastic a step might advance marginally some of the ends served by the exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book." United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510.
5
That Negroes are the class most directly affected by grand jury discrimination was first recognized by this Court in the landmark case of Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664. The Court stated:
"The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others." Id., at 308.
Since qualified Negroes can now vindicate their rights directly, the rationale for allowing a defendant who has been convicted by a constitutional petit jury to assert the rights of Negroes who were excluded from the grand jury has been undermined.
6
The constitutionality of this statute was upheld in Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676.
1
Both advocates and opponents of broad federal habeas corpus relief have recognized the unusual role the Great Writ plays in our federal system. See Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 463 (1963); Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315, 1330-1331 (1961).
2
Not only may the state claimant have a "rerun" of his conviction in the federal courts, but also there is no limit to the number of habeas corpus petitions such a claimant may file. The jailhouse lawyers in the prisons of this country conduct a flourishing business in repetitive habeas corpus petitions. It is not unusual to see, at this Court, a score or more of petitions filed over a period of years by the same claimant.
3
Although the opinion of the Court discusses the extension of habeas corpus to claims of grand jury discrimination, this discussion is unnecessary in view of the Court's conclusion that no prima facie case of discrimination was made out by respondents. Indeed, it may fairly be questioned whether Part II of the opinion is part of the holding of the Court, for not all of the four Members who join it support even the Court's judgment.
4
The Court explicitly bases its extension of habeas corpus in this case upon its conclusion that the constitutional interests involved in a claim of grand jury discrimination are "more compelling" than those involved in other constitutional claims. See ante, at 564. It is not clear, however, that it would be possible to cabin the Court's rule to cases where racial discrimination is alleged. There are, of course, numerous constitutional challenges to grand jury indictments that have nothing to do with racial discrimination. The logic of the Court's position may lead to the extension of habeas corpus to every conceivable constitutional defect in indictments.
5
As Mr. Justice STEWART points out, a federal statute makes it a crime to discriminate on the basis of race in the selection of jurors, 18 U.S.C. § 243, and both Government and private actions may be brought by those improperly excluded from jury service. See Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). Furthermore, in the past this Court has allowed a claim of grand jury discrimination to be made on direct appeal from a conviction. See Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950). But see n. 9, infra.
6
The Court suggests that "federalism concerns . . . are not present" when the fairness of an indictment is challenged on federal habeas, because "[f]ederal courts have granted relief to state prisoners upon proof of the proscribed discrimination for nearly a century. See, e. g., Virginia v. Rives, 100 U.S. [313], 322 [25 L.Ed. 667 (1880)]." Ante, at 562. There is no logic to this reasoning. The mere fact that federal courts have reviewed some state-court decisions for nearly a century hardly supports a conclusion that no federalism concerns exist. Nor does Virginia v. Rives support the Court's argument. In that case, the petitioner challenged the composition of his petit jury, as well as that of the grand jury that had indicted him. Whenever the fairness of the petit jury is brought into question doubts are raised as to the integrity of the process that found the prisoner guilty. See Cassell v. Texas, supra, 339 U.S., at 301-302, 70 S.Ct., at 638-639 (Jackson, J., dissenting). Collateral relief therefore may be justified even though it entails some damages to our federal fabric. See infra, at 586.
7
The Court implies that state trial judges cannot be trusted to rule fairly on the issue here presented, because they are involved administratively in the selection of the grand jury. Ante, at 561, 563. This is a view I find wholly unacceptable. In numerous circumstances, trial judges are called upon to rule on the validity of their own judicial and administrative action. I know of no general constitutional rule requiring disqualification in such cases. I certainly would not accept an assumption at this point in our history that state judges in particular cannot be trusted fairly to consider claims of racial discrimination. See Schneckloth v. Bustamonte, 412 U.S. 218, 263-264, n. 20, 93 S.Ct. 2041, 2066-2067, n. 20, 36 L.Ed.2d 854 (1973) (POWELL, J., concurring).
8
The Court also would justify collateral review of claims of grand jury discrimination because of the damage that such discrimination can do to the perceived integrity of the judicial system as a whole. But it ignores the damage done to society's perception of the criminal justice system by allowing valid convictions to be reversed on collateral attack on the basis of claims having nothing to do with the defendant's guilt or innocence. Moreover, any discriminatory action so notorious as to undermine the public's faith in the fairness of the judiciary is likely to be remedied on direct review by the state courts and by this Court.
9
Although I need not reach the question in this case, I find much of what Mr. Justice STEWART says persuasive on the question whether complaints concerning the fairness of indictment should survive conviction even for purposes of direct appeal. See ante, p. 574. In his dissenting opinion in Cassell v. Texas, Mr. Justice Jackson suggested that "any discrimination in selection of the grand jury in this case, however great the wrong toward qualified Negroes of the community, was harmless to this defendant." 339 U.S., at 304, 70 S.Ct., at 640. Until today this Court never has undertaken to answer Mr. Justice Jackson's arguments in Cassell. Nor am I completely satisfied with today's attempt. For purposes of this opinion, however, I shall assume that direct review of respondents' claims was appropriate.
10
Finding no support in our prior decisions for today's extension of habeas corpus, the Court considers only whether our decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), forbids federal courts to grant habeas corpus in cases such as this. Stone, of course, did not address the proper method for presenting claims of grand jury discrimination, as it involved only claims under the Fourth Amendment exclusionary rule. Nonetheless, the Court overstates the differences between Stone and the present case. See ante, at 560-564. To be sure, in Stone v. Powell, supra, at 495 n. 37, 96 S.Ct., at 3053, we emphasized that the Fourth Amendment exclusionary rule was a "judicially created remedy rather than a personal constitutional right." We did so, however, only in rejecting the suggestion of the dissent that our decision would lead to a "drastic withdrawal of federal habeas jurisdiction," 428 U.S., at 517, 96 S.Ct., at 3063, the extent of which might be unlimited. Stone recognized that the Fourth Amendment exclusionary rule was not designed to protect the right of an individual to be free from unjust conviction. Thus, the justification for undermining the finality of state-court judgments that exists in many habeas corpus actions was absent. Properly understood, therefore, the rationale of our decision in Stone is not only consistent with denying collateral relief for claims of unfair indictment, but actually presages such a limitation on habeas corpus. For, as I have stated in the text above, the right not to be indicted by a discriminatorily selected grand jury, like the right not to have improperly obtained, but highly probative, evidence introduced at trial, has nothing to do with the guilt or innocence of the prisoner.
1
See 570 F.2d 129, at 136 (1978):
"The foreman or forewoman is vitally important to the functioning of grand juries in Tennessee, being 'the thirteenth member of each grand jury organized during his term of office, having equal power and authority in all matters coming before the grand jury with the other members thereof.' Tenn.Code Ann. § 40-1506. He or she is expected to assist the district attorney in investigating crime, may administer oaths to all witnesses, conduct the questioning of witnesses, must indorse and sign all indictments, and like every other chairperson is in a position to guide, whether properly or improperly, the decision-making process of the body. . . ." (Footnote omitted.)
2
The key numbers to compare are the number of blacks selected to be foremen and the total number of opportunities to select a foreman. The latter number may be greater than the number of different individuals who serve if the appointing judge has an inclination to reappoint those who have previously served.
3
The District Court did not make written findings of fact explaining the basis of its conclusion that a prima facie case appeared to have been established. However, the Court of Appeals was in a position to dispose of the appeal, without the necessity of a remand to the District Court, because the record and the District Court's conclusions of law clearly reveal the basis for its conclusion, see Finney v. Arkansas Board of Correction, 505 F.2d 194 (CA8 1974). This was the failure of any of the foremen who testified at the state-court hearing to recollect there having been a black foreman, and the inference therefrom—not clearly erroneous, see Fed.Rule Civ.Proc. 52(a)—that these witnesses believed there had never been a black foreman.
4
See n. 2, supra.
5
If there were any doubt that the evidence adduced in the state-court hearing on respondents' plea in abatement was insufficient—perhaps because it did not unequivocally establish the race of every foreman chosen since 1950—the appropriate course would be for the District Court to hold an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) (evidentiary hearing must be held "unless the state-court trier of fact has after a full hearing reliably found the relevant facts"); 28 U.S.C. § 2254(d)(3) (determination of merits of factual issue by state court shall be presumed to be correct unless it appears "that the material facts were not adequately developed at the State court hearing").
6
Clearly, it is irrelevant that the admissions on the part of the selecting judge that he had never given thought to appointing, and indeed had never appointed, a black foreman came as part of the petitioner's written response to respondents' petitions for writs of federal habeas corpus. In ascertaining whether a plaintiff has carried his burden of proof, all the evidence must be considered. It is not unusual that an affidavit or other evidence submitted by one party to a lawsuit turns out to be of primary, and perhaps even determinative, aid to the other party.
| 01
|
443 U.S. 526
99 S.Ct. 2971
61 L.Ed.2d 720
DAYTON BOARD OF EDUCATION et al., Petitioners,v.Mark BRINKMAN et al.
No. 78-627.
Argued April 24, 1979.
Decided July 2, 1979.
Rehearing Denied Oct. 1, 1979.
See 444 U.S. 887, 100 S.Ct. 186.
Syllabus
A number of students in the Dayton, Ohio, school system, through their parents, brought this action in District Court in 1972, alleging that the Dayton Board of Education, the State Board of Education, and various local and state officials were operating a racially segregated school system in violation of the Equal Protection Clause of the Fourteenth Amendment. After protracted litigation at both the trial and appellate levels, the District Court dismissed the complaint, ruling that, although the Dayton Schools concededly were highly segregated, the Dayton Board's failure to alleviate this condition was not actionable absent sufficient evidence that the racial separation had been caused by the Board's own purposeful discriminatory conduct. In the District Court's view, plaintiffs had failed to show either discriminatory purpose or segregative effect, or both, with respect to the Board's challenged practices and policies, which included faculty hiring and assignments, the use of optional attendance zones and transfer policies, the location and construction of new and expanded school facilities, and the rescission of certain prior resolutions recognizing the Board's responsibility to eradicate racial separation in the public schools. The Court of Appeals reversed, holding that at the time of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I ), in 1954, the Dayton Board had operated a racially segregated, dual school system, that it was constitutionally required to disestablish that system and its effects, that it had failed to discharge this duty, and that the consequences of the dual system together with the intentionally segregative impact of various practices since 1954, were of systemwide import and an appropriate basis for a systemwide remedy.
Held :
1. On the record, there is no basis for disturbing the Court of Appeals' holding that at the time of Brown I the Dayton Board was intentionally operating a dual school system in violation of the Equal Protection Clause. Pp. 2977-2979.
2. Given the fact that a dual system existed in 1954, the Court of Appeals also properly held that the Dayton Board was thereafter under a continuing duty to eradicate the effects of that system, and that the systemwide nature of the violation furnished prima facie proof that current segregation in the Dayton schools was caused at least in part by prior intentionally segregative official acts. Part of the affirmative duty imposed on a school board is the obligation not to take any action that would impede the process of disestablishing the dual system and its effects, Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51, and here the Dayton Board had engaged in many post-Brown I actions that had the effect of increasing or perpetuating segregation. The measure of a school board's post-Brown I conduct under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system. The Dayton Board had to do more than abandon its prior discriminatory purpose, Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548; Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554. The Board has had an affirmative responsibility to see that pupil assignment policies and school construction and abandonment practices were not used and did not serve to perpetuate or re-establish the dual system, and has a "heavy burden" of showing that actions that increased or continued the effects of the dual system serve important and legitimate ends. Pp. 537-540.
3. Nor is there any reason to fault the Court of Appeals' finding, after the remand of this case in Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851, that a sufficient case of current, systemwide effect had been established. This was not a misuse of Keyes, supra, where it was held that "purposeful discrimination in a substantial part of a school system furnishes a sufficient basis for an inferential finding of a systemwide discriminatory intent unless otherwise rebutted" and that "given the purpose to operate a dual school system one could infer a connection between such a purpose and racial separation in other parts of the school system." Columbus Board of Education v. Penick, 443 U.S. 449, 467-468, 99 S.Ct. 2941, 2952, 61 L.Ed.2d 666. The Court of Appeals was also justified in utilizing the Dayton Board's failure to fulfill its affirmative duty and its conduct perpetuating or increasing segregation to trace the current, systemwide segregation back to the purposefully dual system of the 1950's and the subsequent acts of intentional discrimination. Pp. 467-468.
6th Cir., 583 F.2d 243, affirmed.
David C. Greer, Dayton, Ohio, for petitioners.
William E. Caldwell, Memphis, Tenn., for respondents.
Drew S. Days, III, Washington, D. C., for the United States, as amicus curiae, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
This litigation has a protracted history in the courts below and has already resulted in one judgment and opinion by this Court. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977) (Dayton I ). In its most recent opinion, the
2
[Amicus Curiae Information from Page 528 intentionally omitted] United States Court of Appeals for the Sixth Circuit approved a systemwide plan for desegregating the public schools of Dayton, Ohio. Brinkman v. Gilligan, 583 F.2d 243 (1978). The Court of Appeals found that the Dayton Board of Education had operated a racially segregated, dual school system at the time of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I ), and that "[t]he evidence of record demonstrates convincingly that defendants have failed to eliminate the continuing systemwide effects of their prior discrimination" and "actually have exacerbated the racial separation existing at the time of Brown I." 583 F.2d, at 253. We granted certiorari, 439 U.S. 1066, 99 S.Ct. 831, 59 L.Ed.2d 31 (1979), and heard argument in this case in tandem with Columbus Board of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666. We now affirm the judgment of the Court of Appeals.
3
* The public schools of Dayton are highly segregated by race. In the year the complaint was filed, 43% of the students in the Dayton system were black, but 51 of the 69 schools in the system were virtually all white or all black.1 Brinkman v. Gilligan, 446 F.Supp. 1232, 1237 (SD Ohio 1977). A number of students in the Dayton system, through their parents, brought this action on April 17, 1972, alleging that the Dayton Board of Education, the State Board of Education, and the appropriate local and state officials2 were operating a racially segregated school system in violation of the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs sought a court order compelling desegregation. The District Court sustained their challenge, determining that certain actions by the Dayton Board amounted to a "cumulative" violation of the Fourteenth Amendment. Id., at 1259.3 The District Court also approved a plan having limited remedial objectives.
4
The District Court's judgment that the Board had violated the Fourteenth Amendment was affirmed by the Court of Appeals; but after twice being reversed on the ground that the prescribed remedy was inadequate to eliminate all vestiges of state-imposed segregation, the District Court ordered the Board to take the necessary steps to assure that each school in the system would roughly reflect the systemwide ratio of black and white students. App. to Pet. for Cert. 103a.4 The Court of Appeals then affirmed. Brinkman v. Gilligan, 539 F.2d 1084 (1976).
5
We reversed the judgment of the Court of Appeals and ordered the case remanded to the District Court for further proceedings. Dayton I, supra. In light of the District Court's limited findings regarding liability,5 we concluded that there was no warrant for imposing a systemwide remedy. Rather, the District Court should have "determine[d] how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy." 443 U.S., at 420, 97 S.Ct., at 2775. In view of the confusion evidenced at various stages of the proceedings regarding the scope of the violation established, we remanded the case to permit supplementation of the record and specific findings addressed to the scope of the remedy, id., at 418-419, 97 S.Ct., at 2774-2775, but allowed the existing remedy to remain in effect on remand subject to further orders of the District Court, id., at 420-421, 97 S.Ct., at 2775-2776.
6
The District Court held a supplemental evidentiary hearing, undertook to review the entire record anew, and entered findings of fact and conclusions of law and a judgment dismissing the complaint. In support of its judgment, the District Court observed that, although various instances of purposeful segregation in the past evidenced "an inexcusable history of mistreatment of black students," 446 F.Supp., at 1237, plaintiffs had failed to prove that acts of intentional segregation over 20 years old had any current incremental segregative effects.6 The District Court conceded that the Dayton schools were highly segregated but ruled that the Board's failure to alleviate this condition was not actionable absent sufficient evidence that the racial separation had been caused by the Board's own purposeful discriminatory conduct. In the District Court's eyes, plaintiffs had failed to show either discriminatory purpose or segregative effect, or both, with respect to the challenged practices and policies of the Board, which included faculty hiring and assignments, the use of optional attendance zones and transfer policies, the location and construction of new and expanded school facilities, and the rescission of certain prior resolutions recognizing the Board's responsibility to eradicate racial separation in the public schools.7
7
The Court of Appeals reversed. The basic ingredients of the Court of Appeals' judgment were that at the time of Brown I, the Dayton Board was operating a dual school system, that it was constitutionally required to disestablish that system and its effects, that it had failed to discharge this duty, and that the consequences of the dual system, together with the intentionally segregative impact of various practices since 1954, were of systemwide import and an appropriate basis for a systemwide remedy. In arriving at these conclusions, the Court of Appeals found that in some instances the findings of the District Court were clearly erroneous and that in other respects the District Court had made errors of law. 583 F.2d, at 247. Petitioners contend that the District Court, not the Court of Appeals, correctly understood both the facts and the law.
II
A.
8
The Court of Appeals expressly held that, "at the time of Brown I, defendants were intentionally operating a dual school system in violation of the Equal Protection Clause of the fourteenth amendment," and that the "finding of the district court to the contrary is clearly erroneous." 583 F.2d, at 247 (footnote omitted). On the record before us, we perceive no basis for petitioners' challenge to this holding of the Court of Appeals.8
9
Concededly, in the early 1950's, "77.6 percent of all students attended schools in which one race accounted for 90 percent or more of the students and 54.3 percent of the black students were assigned to four schools that were 100 percent black." Id., at 248-249. One of these schools was Dunbar High School, which, the District Court found, had been established as a districtwide black high school with an all-black faculty and a black principal, and remained so at the time of Brown I and up until 1962. 446 F.Supp., at 1245. The District Court also found that "among" the early and relatively undisputed acts of purposeful segregation was the establishment of Garfield as a black elementary school. Id., at 1236-1237. The Court of Appeals found that two other elementary schools were, through a similar process of optional attendance zones and the creation and maintenance of all-black faculties, intentionally designated and operated as all-black schools in the 1930's, in the 1940's, and at the time of Brown I. 583 F.2d, at 249, 250-251. Additionally, the District Court had specifically found that in 1950 the faculty at 100% black schools was 100% black and that the faculty at all other schools was 100% white. 446 F.Supp., at 1238.
10
These facts, the Court of Appeals held, made clear that the Board was purposefully operating segregated schools in a substantial part of the district, which warranted an inference and a finding that segregation in other parts of the system was also purposeful absent evidence sufficient to support a finding that the segregative actions "were not taken in effectuation of a policy to create or maintain segregation" or were not among the "factors . . . causing the existing condition of segregation in these schools." Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 214, 93 S.Ct. 2686, 2700, 37 L.Ed.2d 548 (1973); see id., at 203, 93 S.Ct., at 2695; Columbus Board of Education v. Penick, 443 U.S. 449, 467-468, 99 S.Ct. 2941, 2952, 61 L.Ed.2d 666. The District Court had therefore ignored the legal significance of the intentional maintenance of a substantial number of black schools in the system at the time of Brown I. It had also ignored, contrary to Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 1277, 28 L.Ed.2d 554 (1971), the significance of purposeful segregation in faculty assignments in establishing the existence of a dual school system;9 here the "purposeful segregation of faculty by race was inextricably tied to racially motivated student assignment practices." 583 F.2d, at 248. Based on its review of the entire record, the Court of Appeals concluded that the Board had not responded with sufficient evidence to counter the inference that a dual system was in existence in Dayton in 1954. Thus, it concluded that the Board's "intentional segregative practices cannot be confined in one distinct area"; they "infected the entire Dayton public school system." Id., at 252.
B
11
Petitioners next contend that, even if a dual system did exist a quarter of a century ago, the Court of Appeals erred in finding any widespread violations of constitutional duty since that time.
12
Given intentionally segregated schools in 1954, however, the Court of Appeals was quite right in holding that the Board was thereafter under a continuing duty to eradicate the effects of that system, Columbus, 443 U.S., at 458, 99 S.Ct., at 2947-2949, and that the systemwide nature of the violation furnished prima facie proof that current segregation in the Dayton schools was caused at least in part by prior intentionally segregative official acts. Thus, judgment for the plaintiffs was authorized and required absent sufficient countervailing evidence by the defendant school officials. Keyes, supra, 413 U.S., at 211, 93 S.Ct., at 2698; Swann, supra, 402 U.S., at 26, 91 S.Ct., at 1281. At the time of trial, Dunbar High School and the three black elementary schools, or the schools that succeeded them, remained black schools; and most of the schools in Dayton were virtually one-race schools, as were 80% of the classrooms. " 'Every school which was 90 percent or more black in 1951-52 or 1963-64 or 1971-72 and which is still in use today remains 90 percent or more black. Of the 25 white schools in 1972-73, all open, 90 percent or more white and, if open, were 90 percent or more white in 1971-72, 1963-64 and 1951-52.' " 583 F.2d, at 254 (emphasis in original), quoting Brinkman v. Gilligan, 503 F.2d 684, 694-695 (CA6 1974). Against this background, the Court of Appeals held that "[t]he evidence of record demonstrates convincingly that defendants have failed to eliminate the continuing systemwide effects of their prior discrimination and have intentionally maintained a segregated school system down to the time the complaint was filed in the present case." 583 F.2d, at 253. At the very least, defendants had failed to come forward with evidence to deny "that the current racial composition of the school population reflects the systemwide impact" of the Board's prior discriminatory conduct. Id., at 258.
13
Part of the affirmative duty imposed by our cases, as we decided in Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), is the obligation not to take any action that would impede the process of disestablishing the dual system and its effects. See also United States v. Scotland Neck Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972). The Dayton Board, however, had engaged in many post-Brown I actions that had the effect of increasing or perpetuating segregation. The District Court ignored this compounding of the original constitutional breach on the ground that there was no direct evidence of continued discriminatory purpose. But the measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system. Wright, supra, 407 U.S., at 460, 462, 92 S.Ct., at 2202; Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1291, 28 L.Ed.2d 577 (1971); see Washington v. Davis, 426 U.S. 229, 243, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). As was clearly established in Keyes and Swann, the Board had to do more than abandon its prior discriminatory purpose. 413 U.S., at 200-201 n. 11, 93 S.Ct., at 2693-2694 n. 11; 402 U.S., at 28, 91 S.Ct., at 1282. The Board has had an affirmative responsibility to see that pupil assignment policies and school construction and abandonment practices "are not used and do not serve to perpetuate or re-establish the dual school system," Columbus, 443 U.S., at 460, 99 S.Ct., at 2948, and the Board has a " 'heavy burden' " of showing that actions that increased or continued the effects of the dual system serve important and legitimate ends. Wright, supra, 407 U.S., at 467, 92 S.Ct., at 2205, quoting Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968).
14
The Board has never seriously contended that it fulfilled its affirmative duty or the heavy burden of explaining its failure to do so. Though the Board was often put on notice of the effects of its acts or omissions,10 the District Court found that "with one [counterproductive] exception . . . no attempt was made to alter the racial characteristics of any of the schools." 446 F.Supp., at 1237. The Court of Appeals held that far from performing its constitutional duty, the Board had engaged in "post-1954 actions which actually have exacerbated the racial separation existing at the time of Brown I." 583 F.2d, at 253. The court reversed as clearly erroneous the District Court's finding that intentional faculty segregation had ended in 1951; the Court of Appeals found that it had effectively continued into the 1970's.11 This was a systemwide practice and strong evidence that the Board was continuing its efforts to segregate students. Dunbar High School remained as a black high school until 1962, when a new Dunbar High School opened with a virtually all black faculty and student body. The old Dunbar was converted into an elementary school to which children from two black grade schools were assigned. Furthermore, the Court of Appeals held that since 1954 the Board had used some "optional attendance zones for racially discriminatory purposes in clear violation of the Equal Protection Clause." Id., at 255. The District Court's finding to the contrary was clearly erroneous.12 At the very least, the use of such zones amounted to a perpetuation of the existing dual school system. Likewise, the Board failed in its duty and perpetuated racial separation in the schools by its pattern of school construction and site selection, recited by the District Court, see n. 7, supra, that resulted in 22 of the 24 new schools built between 1950 and the filing of the complaint opening 90% black or white. The same pattern appeared with respect to additions of classroom space made to existing schools. Seventy-eight of a total of 86 additions were made to schools that were 90% of one race. We see no reason to disturb these factual determinations, which conclusively show the breach of duty found by the Court of Appeals.
C
15
Finally, petitioners contend that the District Court correctly interpreted our earlier decision in this litigation as requiring respondents to prove with respect to each individual act of discrimination precisely what effect it has had on current patterns of segregation.13 This argument results from a misunderstanding of Dayton I, where the violation that had then been established included at most a few high schools. See Columbus, 443 U.S., at 458 n. 7 and 465-466, 99 S.Ct., at 2947 n. 7 and 2950-2951; nn. 3 and 5, supra. We have found no reason to fault the Court of Appeals' findings after our remand that a sufficient case of current, systemwide effect had been established. In reliance on its decision in Columbus, the Court of Appeals held:
16
"First, the dual school system extant at the time of Brown I embraced 'a systemwide program of segregation affecting a substantial portion of the schools, teachers, and facilities' of the Dayton schools, and, thus, clearly had systemwide impact. . . . Secondly, the post-1954 failure of defendants to desegregate the school system in contravention of their affirmative constitutional duty obviously had systemwide impact. . . . The impact of defendants' practices with respect to the assignment of faculty and students, use of optional attendance zones, school construction and site selection, and grade structure and reorganization clearly was systemwide in that the actions perpetuated and increased public school segregation in Dayton." 583 F.2d, at 258 (footnote omitted), quoting Keyes, 413 U.S., at 201, 93 S.Ct., at 2694.
17
As we note in Columbus today, this is not a misuse of Keyes, "where we held that purposeful discrimination in a substantial part of a school system furnishes a sufficient basis for an inferential finding of a systemwide discriminatory intent unless otherwise rebutted, and that given the purpose to operate a dual school system one could infer a connection between such a purpose and racial separation in other parts of the school system." Columbus, 443 U.S., at 467-468, 99 S.Ct., at 2952. See also Swann, 402 U.S., at 26, 91 S.Ct., at 1281. The Court of Appeals was also quite justified in utilizing the Board's total failure to fulfill its affirmative duty—and indeed its conduct resulting in increased segregation—to trace the current, systemwide segregation back to the purposefully dual system of the 1950's and to the subsequent acts of intentional discrimination. See supra, at 537; Columbus, 443 U.S., at 464-465, 99 S.Ct., at 2950; Keyes, supra, 413 U.S., at 211, 93 S.Ct., at 2698; Swann, supra, 402 U.S., at 21, 26-27, 91 S.Ct., at 1278, 1281-1282.
18
Because the Court of Appeals committed no prejudicial errors of fact or law, the judgment appealed from must be affirmed.
19
So ordered.
20
Mr. Justice REHNQUIST, with whom Mr. Justice POWELL joins, dissenting.
21
For the reasons set out in my dissent in Columbus Board of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 2952, 61 L.Ed.2d 666 (1979). I cannot join the Court's opinion in this case. Both the Court of Appeals for the Sixth Circuit and this Court used their respective Columbus opinions as a roadmap, and for the reasons I could not subscribe to the affirmative duty, the foreseeability test, the cavalier treatment of causality, and the false hope of Keyes and Swann rebuttal in Columbus, I cannot subscribe to them here. Little would be gained by another "blow-by-blow" recitation in dissent of how the Court's cascade of presumptions in this case sweeps away the distinction between de facto and de jure segregation.
22
In its haste to affirm the Court of Appeals, the Court barely breaks stride to note that there was some "overreading of Swann " in the Court of Appeals' conclusion that there was a "dual" school system at the time of Brown I, and that the court had the wrong conception of segregative intent, i. e., the mysterious Oliver standard which this Court thinks the Court of Appeals talks a lot about but never really applies. Ante, at 2978 n. 9. But as the Court more candidly recognizes in this case, the affirmative duty renders any discussion of segregative intent after 1954 gratuitous anyway. The Court is also more honest about the stringency of the standard by which all post-1954 conduct is to be judged: "[T]he Board has a ' "heavy burden" ' of showing that actions that increased or continued the effects of the dual [school] system serveimportant and legitimate ends." Ante, at 538 (emphasis added).
23
I think that the Columbus and Dayton District Court opinions point out the limitation of my Brother STEWART's perception of the proper roles of the trial judge and reviewing courts. That this and other appellate courts must defer to the factfindings of trial courts is unexceptionable. With the aid of this observation, he concludes that the Court of Appeals should be affirmed in Columbus, insofar as it agreed with the District Court there, and should be reversed here because it upset the District Court's conclusion that there was no warrant for a desegregation remedy. But even a casual reading of the District Court opinions makes it very clear that the primary determinants of the different results in these two cases were two totally different conceptions of the law and methodology that govern school desegregation litigation. The District Judge in Dayton did not employ a post-1954 "affirmative duty" test. Violations he did identify were found not to have any causal relationship to existing conditions of segregation in the Dayton school system. He did not employ a foreseeability test for intent, hold the school system responsible for residential segregation, or impugn the neighborhood school policy as an explanation for some existing one-race schools. In short, the Dayton and Columbus District Judges had completely different ideas of what the law required. As I am sure my Brother STEWART agrees, it is for reviewing courts to make those requirements clear.
24
Thus, the District Court opinions in these two cases demonstrate dramatically the hazards presented by the laissez-faire theory of appellate review in school desegregation cases. And I have no doubt that the Court of Appeals' heavyhanded approach in this case is to some degree explained by the perceived inequity of imposing a systemwide racial-balance remedy on Columbus while finding no violation in Dayton.* The simple meting out of equal remedies, however, is not by any means "equal justice under law."
1
The Court of Appeals set out the undisputed statistics:
" 'Enrollment data from the Dayton system reveals the substantial lack of progress that has been made over the past 23 years in integrating the Dayton school system. In 1951-52, of 47 schools, 38 had student enrollments 90 per cent or more one race (4 black, 34 white). Of the 35,000 pupils in the district, 19 per cent were black. Yet over half of all black pupils were enrolled in the four all black schools; and 77.6 per cent of all pupils were assigned to virtual one race schools. "Virtual one race schools" refers to schools with student enrollments 90 per cent or more one race. In 1963-64, of 64 schools, 57 had student enrollments of 90 per cent or more one race (13 black, 44 white). Of the 57,400 pupils in the district, 27.8 per cent were black. Yet 79.2 per cent of all black pupils were enrolled in the 13 black schools; and 88.8 per cent of all pupils were enrolled in such one race schools.
" 'In 1971-72 (the year the complaint was filed), of 69 schools, 49 had student enrollments 90 per cent or more one race (21 black, 28 white). Of the 54,000 pupils 42.7 per cent were black; and 75.9 per cent of all black students were assigned to the 21 black schools. In 1972-73 (the year the hearing was held) of 68 schools, 47 were virtually one race (22 black, 25 white); fully 80 per cent of all classrooms were virtually one race. (Of the 50,000 pupils in the district, 44.6 per cent were black).
" 'Every school which was 90 per cent or more black in 1951-52 or 1963-64 or 1971-72 and which is still in use today remains 90 per cent or more black. Of the 25 white schools in 1972-73, all opened 90 per cent or more white and, if open, were 90 per cent or more white in 1971-72, 1963-64 and 1951-52.' " Brinkman v. Gilligan, 583 F.2d 243, 254 (CA6 1978) (emphasis in original), quoting Brinkman v. Gilligan, 503 F.2d 684, 694-695 (CA6 1974).
2
In the last stages of this litigation, respondents did not press their claims against the state officials. Only the Dayton Board and local officials petitioned for writ of certiorari.
3
The violation found by the District Court had three major components: first, the marked racial separation of students, which the Board had made no significant effort to alter; second, the utilization of optional attendance zones, in some cases racially motivated and having significant segregative effect in two high school zones; and third, the Board's rescission of previously adopted resolutions recognizing the Board's role in racial segregation and its responsibility to eradicate the existing pattern.
4
To preserve continuity, the court exempted enrolled high school students for two academic years. And the court noted that it would evaluate on a case-by-case basis any deviations from the target percentage. The court, moreover, set down certain guidelines to be followed in achieving the redistribution: (1) students would be permitted to attend neighborhood walk-in schools in those neighborhoods where the schools were already within the approved ratios; (2) students would be transported to the nearest available school; and (3) no student would be transported further than two miles or, if traveling that distance would take more time, for longer than 20 minutes. The District Court appointed a master to supervise the logistics of the plan. Certain other particulars were worked out when the master's report was filed. The plan has now been in effect for three school years.
5
The three parts of the violation found by the District Court are discussed in n. 3, supra. Racial imbalance, we noted in Dayton I, is not per se a constitutional violation, and rescission of prior resolutions proposing desegregation is unconstitutional only if the resolutions were required in the first place by the Fourteenth Amendment. 433 U.S., at 413-414, 97 S.Ct., at 2772. Thus, the scope of liability extended no further than the use of some optional zones, which apparently had a present effect only as to certain high schools, and the rescission of the resolutions so far as they pertained to these high schools. See id., at 412, 97 S.Ct., at 2771.
6
The District Court observed that "[m]any of those practices, if they existed today, would violate the Equal Protection Clause." 446 F.Supp., at 1236. The court identified certain Board policies as being "among" such practices: until at least 1934, black elementary students were kept separate from white students; until approximately 1950, high school athletics were deliberately segregated by race; and until about that same time, black students at one high school were ordered or induced to sit at the rear of classrooms and suffered other indignities.
7
Reviewing the faculty assignment and hiring practices, the District Court found that until at least 1951 the Board's policies had been intentionally segregative. But in that year the Board instituted a policy of "dynamic gradualism" and "by 1969 all traces of segregation were virtually eliminated." Id., at 1238-1239. Reasoning that the predominant factor in the racial identifiability of schools is the pupil population and not the faculty, the court ruled that plaintiffs had not established that past discrimination in faculty assignments had an incremental segregative effect.
Similarly, the court ruled that the plaintiff children had not shown that the Board's use of attendance zones and transfers denied equal protection. In certain instances, segregative intent had not been satisfactorily demonstrated. In fact, the District Court reversed itself with respect to the high school optional zones it had earlier held unconstitutional. In other instances, current segregative effect had not been proved. Though another high school, Dunbar, had been created and maintained until 1962 as a citywide black high school, the District Court found that because of the increasing black population in that area Dunbar would have been virtually all black by 1960 anyway. And though until the early 1950's black orphans had been bused past nearby white schools to all-black schools, this "arguably" discriminatory conduct had not been shown by "objective proof" to have any continued segregative effect. Id., at 1241.
The court also looked to school construction and siting practices. Although 22 of 24 new schools, 78 of 95 additions, and all of 26 portable schools built or utilized by the Board between 1950 and 1972 opened virtually all black or all white, and though many of the accompanying decisions appeared to be so without any rationale as to be "haphazard," the District Court found that the plaintiffs had not shown purposeful segregation. The court also refused to investigate whether the Board had any legitimate grounds for the failure to close some schools and consolidate others when enrollment declined in recent years. Though such a course would have decreased racial separation and saved money, the court found no evidence of discriminatory purpose in those facts. Nor did the court see any hint of impermissible purpose in the Board's decisions in the 1940's to supply school services for legally segregated housing projects and to rent elementary school space in such projects.
Finally, the court held that the Board's rescission of its earlier resolutions was not violative of the Fourteenth Amendment since, in light of the court's finding that the current segregation had no unconstitutional origin, the Board had no constitutional obligation to adopt the resolutions in the first place.
8
We have no quarrel with our Brother STEWART's general conclusion that there is great value in appellate courts showing deference to the fact-finding of local trial judges. 443 U.S. 449, 470-471, 99 S.Ct. 2982, 2983-2984, 61 L.Ed.2d 666. The clearly-erroneous standard serves that purpose well. But under that standard, the role and duty of the Court of Appeals are clear: it must determine whether the trial court's findings are clearly erroneous, sustain them if they are not, but set them aside if they are. The Court of Appeals performed its unavoidable duty in this case and concluded that the District Court had erred. Differing with our dissenting Brothers, we see no reason on the record before us to upset the judgment of the Court of Appeals in this respect.
9
We do not deprecate the relevance of segregated faculty assignments as one of the factors in proving the existence of a school system that is dual for teachers and students; but to the extent that the Court of Appeals understood Swann v. Charlotte-Mecklenburg Board of Education as holding that faculty segregation makes out a prima facie case not only of intentionally discriminatory faculty assignments contrary to the Fourteenth Amendment but also of purposeful racial assignment of students, this is an overreading of Swann.
The Court of Appeals also held that the District Court had not given proper weight to Oliver v. Michigan State Board of Education, 508 F.2d 178, 182 (CA6 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975), where the Court of Appeals had held that "[a] presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials' action or inaction was an increase or perpetuation of public school segregation," and that "[t]he presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies." We have never held that as a general proposition the foreseeability of segregative consequences makes out a prima facie case of purposeful racial discrimination and shifts the burden of producing evidence to the defendants if they are to escape judgment; and even more clearly there is no warrant in our cases for holding that such foreseeability routinely shifts the burden of persuasion to the defendants. Of course, as we hold in Columbus today, 443 U.S., at 464-465, 99 S.Ct., at 2950, proof of foreseeable consequences is one type of quite relevant evidence of racially discriminatory purpose, and it may itself show a failure to fulfill the duty to eradicate the consequences of prior purposefully discriminatory conduct. See supra, at 535.
10
The Board heard from the local National Association for the Advancement of Colored People and other community groups, the Department of Health, Education, and Welfare, the Ohio State Department of Education, and a citizens advisory group the Board had appointed; at times the Board itself expressed its recognition of the problem and of its responsibility, though ultimately it did nothing. 446 F.Supp., at 1251-1252.
11
Under the policy of "dynamic gradualism" instituted in 1951, see n. 7, supra, black teachers were assigned to white or mixed schools when the surrounding communities were ready to accept black teachers, and white teachers who agreed were assigned to black schools. App. 182-Ex. By 1969, each school in the system had at least one black teacher. The District Court apparently did not think the post-1951 policy was purposeful discrimination. 446 F.Supp., at 1238-1239. We think the Court of Appeals was completely justified in finding that conclusion to be clearly erroneous on the undisputed facts. As late as the 1968-1969 school year, the Board assigned 72% of all black teachers to schools that were 90% or more black, and only 9% of white teachers to such schools. And faculty segregation disappeared completely only after efforts of the Department of Health, Education, and Welfare under Title VI of the Civil Rights Act of 1964. See 446 F.Supp., at 1238.
12
The Court of Appeals found that the District Court had committed clear error in reversing its earlier findings of purpose as to certain optional zones, which the Court of Appeals had earlier affirmed and this Court had not set aside. 583 F.2d, at 255.
13
Petitioners also contend that the respondent children have failed to establish their standing to bring this action. This challenge is dependent on petitioners' major contentions, for if the Court of Appeals was correct that the current, systemwide segregation is a result of past unlawful conduct then respondents, as students in the system, clearly have standing.
*
The Court of Appeals did not even remand to allow the Dayton school authorities the opportunity to show that a more limited remedy was warranted, even though the Court of Appeals made findings of fact with respect to liability that had never been made before by any court in this long litigation, and therefore were never part of a remedy hearing. This doubtlessly reflects the Court of Appeals' honest appraisal of the futility of attempts at Swann rebuttal by a school board.
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Subsets and Splits