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UNITED  STATES  REPORTS 

VOLUME   474 


CASES  ADJUDGED 

IN 

THE  SUPREME  COURT 

AT 

OCTOBER  TERM,  1985 

BEGINNING  OF  TERM 
OCTOBER  7, 1985,  THROUGH  FEBRUARY  21, 1986  * 

TOGETHER  WITH  OPINION  OF  INDIVIDUAL  JUSTICE  IN  CHAMBERS 


HENRY  C.  LIND 

REPORTER  OF  DECISIONS 


UNITED  STATES 

GOVERNMENT  PRINTING  OFFICE 
WASHINGTON    1988 


JUSTICES 

OF  THE 

SUPREME  COURT 

DURING  THE  TIME  OF  THESE  REPORTS 


WARREN  E.  BURGER,  CHIEF  JUSTICE. 
WILLIAM  J,  BRENNAN,  JR.,  ASSOCIATE  JUSTICE. 
BYRON  R.  WHITE,  ASSOCIATE  JUSTICE. 
THURGOOD  MARSHALL,  ASSOCIATE  JUSTICE. 
HARRY  A.  BLACKMUN,  ASSOCIATE  JUSTICE. 
LEWIS  F.  POWELL,  JR.,  ASSOCIATE  JUSTICE. 
WILLIAM  H.  REHNQUIST,  ASSOCIATE  JUSTICE. 
JOHN  PAUL  STEVENS,  ASSOCIATE  JUSTICE. 
SANDRA  DAY  O'CONNOR,  ASSOCIATE  JUSTICE. 

RETIRED 

POTTER  STEWART,  ASSOCIATE  JUSTICE.1 


OFFICERS  OF  THE  COURT 

EDWIN  MEESE  III,  ATTORNEY  GENERAL. 
CHARLES  FRIED,  SOLICITOR  GENERAL.2 
JOSEPH  F.  SPANIOL,  JR.,  CLERK. 
HENRY  C.  LIND,  REPORTER  OF  DECISIONS. 
ALFRED  WONG,  MARSHAL. 
STEPHEN  G.  MARGETON,  LIBRARIAN. 


1  Justice  Stewart,  who  retired  effective  July  3,  1981  (453  U.  S.  vn),  died 
on  December  7,  1985.     See  post,  p.  XXV. 

2  The  Honorable  Charles  Fried,  of  Massachusetts,  was  nominated  by 
President  Reagan  on  September  26,  1985,  to  be  Solicitor  General;  the 
nomination  was  confirmed  by  the  Senate  on  October  22,  1985;  he  was  com- 
missioned on  the  same  date  and  took  the  oath  of  office  on  October  23,  1985. 
He  was  presented  to  the  Court  on  November  4,  1985  (see  post,  p.  xxin). 

in 


SUPREME  COURT  OF  THE  UNITED  STATES 

ALLOTMENT  OF  JUSTICES 

It  is  ordered  that  the  following  allotment  be  made  of  the  Chief 
Justice  and  Associate  Justices  of  this  Court  among  the  circuits, 
pursuant  to  Title  28,  United  States  Code,  Section  42,  and  that 
such  allotment  be  entered  of  record,  effective  nunc  pro  tune 
October  1,  1981,  viz.: 

For  the  District  of  Columbia  Circuit,  WARREN  E.  BURGER,  Chief 
Justice. 

For  the  First  Circuit,  WILLIAM  J.  BRENNAN,  JR.,  Associate 
Justice. 

For  the  Second  Circuit,  THURGOOD  MARSHALL,  Associate 
Justice. 

For  the  Third  Circuit,  WILLIAM  J.  BRENNAN,  JR.,  Associate 
Justice. 

For  the  Fourth  Circuit,  WARREN  E.  BURGER,  Chief  Justice. 

For  the  Fifth  Circuit,  BYRON  R.  WHITE,  Associate  Justice. 

For  the  Sixth  Circuit,  SANDRA  DAY  O'CONNOR,  Associate 
Justice. 

For  the  Seventh  Circuit,  JOHN  PAUL  STEVENS,  Associate 
Justice. 

For  the  Eighth  Circuit,  HARRY  A.  BLACKMUN,  Associate 
Justice. 

For  the  Ninth  Circuit,  WILLIAM  H.  REHNQUIST,  Associate 
Justice. 

For  the  Tenth  Circuit,  BYRON  R.  WHITE,  Associate  Justice. 

For  the  Eleventh  Circuit,  LEWIS  F.  POWELL,  JR.,  Associate 
Justice. 

October  5,  1981. 


Pursuant  to  the  provisions  of  Title  28,  United  States  Code, 
Section  42,  it  is  ordered  that  the  Chief  Justice  be,  and  he 
hereby  is,  assigned  to  the  Federal  Circuit  as  Circuit  Justice, 
effective  October  1,  1982. 

October  12,  1982. 


(For  next  previous  allotment,  see  423  U.  S.,  p.  vi.) 


IV 


PROCEEDINGS  IN  COMMEMORATION  OF  THE 

50TH  ANNIVERSARY  OF  THE  OPENING 

OF  THE  SUPREME  COURT  BUILDING 

MONDAY,  OCTOBER  7,  1985 


Present:  CHIEF  JUSTICE  BURGER,  JUSTICE  BRENNAN, 
JUSTICE  WHITE,  JUSTICE  MARSHALL,  JUSTICE  BLACKMUN, 
JUSTICE  POWELL,  JUSTICE  REHNQUIST,  JUSTICE  STEVENS, 
and  JUSTICE  O'CONNOR. 


THE  CHIEF  JUSTICE  said: 

We  are  in  special  session  today  to  take  note  of  the  fiftieth 
anniversary  of  the  opening  of  this  building;  and,  as  is  not  en- 
tirely uncommon,  the  Court  is  ahead  of  some  of  the  lawyers 
who  will  be  attending  the  proceedings. 

We  have  the  privilege  of  having  three  distinguished  Ameri- 
can lawyers  here  to  take  note  of  these  events.  We  begin 
with  Mr.  Erwin  Griswold,  former  Solicitor  General  of  the 
United  States  and  former  Dean  of  Harvard  Law  School. 
Mr.  Griswold. 


Mr.  Griswold:  MR.  CHIEF  JUSTICE  and  may  it  please  the 
Court: 

This  Court  and  its  bar  live  in  what  I  believe  is  called  a  sym- 
biotic relationship.  Each  benefits  from  the  presence  of  the 
other.  At  any  rate,  the  bar  hopes  that  is  an  accurate 
statement. 

The  bar  has  its  role,  but  it  is  not  very  cohesive.  There  is 
no  published  list  of  the  membership  of  this  Court's  bar  and  no 
organization  of  it.  Indeed,  no  one  knows  how  many  mem- 
bers there  are.  The  Clerk's  office  tells  me  that  no  applica- 
tions were  required  until  1925. 


vi  50TH  ANNIVERSARY  PROCEEDINGS 

Since  then  there  have  been  applications,  and  these  have 
been  numbered  serially.  At  the  present  time  the  number  of 
such  applications  is  somewhat  over  165,000.  But  there  is  no 
record  of  those  who  have  died  or  retired  from  active  practice. 
As  a  guess,  I  would  say  that  there  are  about  75,000  lawyers 
in  this  country  who  are  members  of  this  Court's  bar. 

It  is  a  privilege  to  speak  on  their  behalf  and  to  express  the 
appreciation  of  the  bar  for  the  important  role  which  this 
Court  plays  in  our  constitutional  and  legal  structure. 

We  do  know  one  thing:  The  first  member  of  the  bar  of  this 
Court  was  Ellas  Boudinot  of  New  Jersey,  who  was  admitted 
in  February  1790.  Of  course,  there  was  no  one  to  move  his 
admission,  but  this  Court  was  flexible.  It  had  not  yet  estab- 
lished procedures  for  the  filing  of  credentials. 

For  the  first  few  admissions,  the  Court  apparently  relied 
on  judicial  notice.  The  judges  knew  who  were  the  qualified 
lawyers  and  they  were  admitted.  After  about  a  year,  the 
Court  turned  to  the  Attorney  General,  Edmund  Randolph. 
Though  he  was  never  admitted  to  practice  before  the  Court, 
he  was  treated  as  an  officer  of  the  Court. 

And  before  long,  the  practice  was  established  of  admission 
to  the  bar  on  motion  of  persons  already  admitted.  Under 
the  first  admissions  rule,  adopted  on  February  5,  1790,  the 
Court  made  the  provision,  which  continues  to  this  day,  that 
applicants  for  admission  shall  have  been  admitted  for  "three 
years  past  in  the  Supreme  Court  of  the  state  to  which  they 
respectively  belong." 

The  formula  also  provided  then,  as  it  did  throughout  the 
nineteenth  century,  that  the  private  and  professional  charac- 
ter of  the  applicants  "shall  appear  to  be  fair."  As  our  lan- 
guage evolved,  the  word  "fair"  acquired  a  double  meaning, 
and  the  use  of  the  phrase  sometimes  produced  a  laugh  in  the 
courtroom.  So  the  wording  was  changed,  and  for  many 
years  in  the  twentieth  century  the  sponsor  was  required  to 
say  that  he  vouched  for  the  applicant.  Under  the  rule  as  it 
now  stands,  he  affirms  that  the  applicant  is  of  good  moral  and 
professional  character.  , 


50TH  ANNIVERSARY  PROCEEDINGS  vn 

All  motions  for  admission  were  made  in  open  court  until 
about  15  years  ago.  Now,  in  accordance  with  modern  times, 
the  whole  procedure  can  be  done  by  mail. 

Under  the  first  rule  for  admission,  the  applicant  was  re- 
quired to  elect  whether  he  would  practice  as  an  attorney  or  as 
a  counselor,  and  he  could  not  practice  as  both.  If  this  rule 
had  continued,  the  British  distinction  between  solicitors  and 
barristers  would  have  been  established  here,  and  we  might 
have  a  narrower  group  today  which  could  be  recognized  as 
the  bar  of  the  Supreme  Court. 

Indeed,  the  Circuit  Court  for  the  First  Circuit  provided  for 
four  degrees:  attorneys,  counselors,  barristers,  and  ser- 
geants. Charles  Warren  in  his  "History  of  the  American 
Bar"  refers  to  an  order  by  Justice  Story  made  in  that  court  in 
1812  admitting  on  his  own  motion  Jeremiah  Smith  and  Jere- 
miah Mason  to  the  degree  of  sergeant  at  law,  and  as  far  as  I 
know  they  are  the  only  lawyers  who  have  been  sergeants  at 
law  in  this  country. 

Many  great  lawyers  have  appeared  before  the  Court. 
John  Marshall  appeared  in  one  case  in  the  late  1790's,  unsuc- 
cessfully. Others  who  may  be  mentioned  are  Luther  Martin, 
Caesar  Rodney,  and  Roger  B.  Taney.  These  were  the  days 
of  oratory,  and  by  the  1830's  Daniel  Webster  achieved  his 
long  continued  eminence  before  the  Court. 

His  appearances  were  often  great  social  events,  with  large 
crowds  both  of  men  and  women  attending  the  Court  sessions, 
for  often  several  days  were  devoted  to  a  single  case.  In 
those  days  Webster  argued  several  hundred  cases,  more  than 
have  been  presented  before  the  Court  by  any  other  person  in 
its  history. 

Interestingly  enough,  the  member  of  the  bar  with  the  sec- 
ond largest  total  of  arguments  has  left  little  trace.  He  was 
Walter  Jones,  admitted  to  practice  in  1796,  and  the  United 
States  Attorney  in  the  District  of  Columbia  from  1802  to 
1821. 

In  later  years,  he  often  acted  in  association  with  Daniel 
Webster.  Among;  others,  he  argued  the  case  of  Martin 


vni  50TH  ANNIVERSARY  PROCEEDINGS 

against  Hunter's  Lessee  and  McCulloch  against  Maryland. 
He  also  appeared  in  the  first  hearing  of  the  Charles  River 
Bridge  case,  where  he  was  opposed  by  Daniel  Webster. 

We  ought  to  have  more  information  about  Walter  Jones, 
and  perhaps  the  Supreme  Court  Historical  Society  can  find  a 
way  to  make  him  better  known. 

The  history  of  the  Court  and  its  bar  is  of  course  inter- 
twined with  the  history  of  the  country.  The  details  are 
being  developed  in  the  great  history  of  the  Court  which  is 
being  prepared  under  the  Oliver  Wendell  Holmes  bequest.  I 
will  refer  to  only  two  events,  both  reflecting  the  Court's 
interrelationship  with  the  slow  but  steady  progress  which  the 
country  made  during  the  nineteenth  century  with  two  funda- 
mental problems. 

The  first  black  lawyer  to  be  admitted  to  the  bar  of  the 
Supreme  Court  was  Dr.  John  S.  Rock,  who  was  born  of  free 
parents  in  New  Jersey  in  1825.  He  was  admitted  on  Febru- 
ary 1st,  1865,  just  short  of  his  fortieth  birthday.  Before 
then  he  had  been  a  teacher,  a  dentist,  and  a  doctor.  He  had 
moved  to  Boston  in  1853  and  he  was  one  of  the  founders  of 
the  Republican  Party  in  Massachusetts. 

In  1858  he  wanted  to  go  to  France  for  medical  treatment, 
but  he  was  refused  a  passport  on  the  ground  that  he  was  not 
a  citizen.  The  Massachusetts  legislature  then  passed  a  law 
providing  for  state  passports— I'm  not  sure  this  Court  would 
accept  that  today— and  this  was  accepted  in  France. 

A  year  or  so  later,  Dr.  Rock  returned  to  Boston  and  began 
to  read  law.  He  was  admitted  to  practice  in  Massachusetts 
in  September  1861  and  he  was  admitted  to  practice  in  this 
Court  on  February  1,  1865.  Note  that  date — shortly  after 
the  appointment  of  Salmon  P.  Chase  as  Chief  Justice. 

This  came  before  the  final  termination  of  the  Civil  War  and 
before  the  adoption  of  the  Thirteenth,  Fourteenth,  and  Fif- 
teenth Amendments  and  with  the  Dred  Scott  case  still  on  the 
books.  As  the  New  York  Tribune  reported:  "By  Jupiter,  the 
sight  was  good."  It  must  have  been  one  of  the  dramatic 
moments  in  this  Court's  history,  at  least  in  retrospect. 

Rock's  admission  was  moved  by  Senator  Charles  Surnner. 
The  newspaper  reporter  observed  that  "The  assenting  nod  of 


50TH  ANNIVERSARY  PROCEEDINGS  EX 

the  Chief  Justice  dug  the  grave  to  bury  the  Dred  Scott 
decision." 

I  am  glad  to  record,  too,  that  one  of  the  persons  who 
encouraged  Dr.  Rock  was  George  L.  Ruffin,  whom  we  be- 
lieve to  be  the  first  black  graduate  of  the  Harvard  Law 
School. 

The  next  event  to  which  I  will  refer  was  the  admission  of 
the  first  woman  to  the  Supreme  Court  bar.  In  1872,  this 
Court  had  refused  to  interfere  with  the  action  of  the  Supreme 
Court  of  Illinois,  which  denied  admission  to  Myra  Bradwell, 
who  was  the  wife  of  a  judge  in  Chicago.  She  relied  in  this 
Court  on  the  equal  protection  clause  of  the  recently  adopted 
Fourteenth  Amendment,  but  was  unsuccessful.  It  may  be 
mentioned  that  Chief  Justice  Chase  was  the  sole  dissenter 
from  this  conclusion. 

It  was  less  than  seven  years  later,  though,  that  Belva  A. 
Lockwood  became  the  first  woman  admitted  to  practice  be- 
fore the  Court.  This  was  on  March  3rd,  1879.  So  quick  was 
the  change  of  view  that  this  evoked  no  opinion  from  any 
member  of  the  Court.  Indeed,  Mrs.  Bradwell,  who  was  de- 
nied admission  in  1872,  was  finally  admitted  when  she  applied 
again  in  March  1892  on  motion  of  Attorney  General  W.  H.  H. 
Miller. 

Alice  0'Don.nell  has  pointed  out  in  her  paper  in  the  1977 
Yearbook  of  the  Supreme  Court  Historical  Society  that  it 
took  41  years  or  until  1929  before  the  first  100  women  became 
members  of  the  bar  of  the  Court.  Some  of  the  early 
admittees  had  great  careers  in  the  law.  I  will  mention  only 
Florence  Allen,  who  became  the  first  woman  judge  of  a  con- 
stitutional federal  court;  Mabel  Walker  Willebrand,  who  was 
Assistant  Attorney  General  under  President  Hoover;  and 
Helen  Carloss,  who  had  a  long  and  distinguished  career  in 
the  Tax  Division  of  the  Department  of  Justice  and  was 
an  extraordinarily  persuasive  lawyer  in  the  federal  courts, 
including  this  Court. 

A  great  increase  in  the  number  of  women  lawyers  has  oc- 
curred in  the  past  15  years.  In  another  15  years,  if  present 
trends  continue,  perhaps  30  percent  of  the  members  of  the 
bar  of  this  Court  will  be  women.  This  will  surely  have  an 


x  50TH  ANNIVERSARY  PROCEEDINGS 

important  impact,  though  it  is  not  as  yet  clear  just  what  that 
impact  will  be. 

Is  there  a  bar  of  this  Court?  It  is  hard  to  say.  There 
have  been  periods  when  there  was  a  relatively  small  group  of 
lawyers  who  were  widely  recognized  as  leaders  of  the  bar  of 
this  Court.  They  were  the  orators  of  the  nineteenth  cen- 
tury, starting  with  Daniel  Webster  and  continuing  through 
John  G.  Johnson  of  Pennsylvania. 

There  was  a  bar  in  the  1920's  and  1930's,  when  such  law- 
yers as  Charles  Evans  Hughes,  Owen  D.  Roberts,  John  W. 
Davis,  George  Wharton  Pepper,  and  William  D.  Mitchell 
made  frequent  appearances  before  the  Court.  By  this  time, 
oratory  was  pass£.  The  presentations  were  less  flowery, 
but  they  were  mellifluous. 

As  a  young  lawyer,  I  was  fascinated  by  John  W.  Davis  and 
his  skill  at  crossing  thin  ice  with  great  artistry,  reaching  the 
other  side  safely  before  it  was  fully  recognized  that  the  ice 
was  so  thin. 

There  is  one  case  which  I  recall  which  brought  together 
three  of  these  giants.  This  was  United  States  against 
George  Otis  Smith  in  1932.  It  involved  the  question 
whether  the  Senate  could  reconsider  the  confirmation  of 
a  presidential  nomination  after  the  President  had  acted 
on  it. 

The  Senate  retained  John  W.  Davis  as  its  counsel.  Attor- 
ney General  William  D.  Mitchell  appeared  for  the  United 
States,  essentially  representing  the  President.  And  George 
Wharton  Pepper  represented  Mr.  Smith.  That  was  surely 
one  of  the  high  points  of  advocacy  in  this  century. 

With  the  great  increase  in  ease  and  speed  of  travel  since 
World  War  Two,  there  is  much  less  concentration  on  work 
before  the  Court,  although  it  has  never  been  highly  concen- 
trated since  the  days  of  Daniel  Webster  and  Walter  Jones. 
This  is  inevitable  in  a  country  as  large  and  diverse  as  this 
country  is. 

It  might  have  been  different  if  the  original  division  be- 
tween attorneys  and  counselors  had  prevailed.  It  is  hard  to 


50TH  ANNIVERSARY  PROCEEDINGS  xi 

think,  though,  that  such  an  arrangement,  while  having  some 
advantages,  would  have  been  a  good  one  overall.  In  any 
event,  it  is  really  impossible  to  have  such  distinctions  in  this 
country. 

There  is  one  group  which  has  long  provided  the  backbone 
of  the  Supreme  Court  bar.  That  is  the  Solicitor  General 
and  his  staff  and  his  associates  in  the  Department  of 
Justice.  This  office  has  long  maintained  a  high  standard 
and  a  great  tradition.  It  appears  in  one  way  or  another  in 
nearly  half  of  the  cases  which  are  heard  on  the  merits  by 
the  Court  and  in  a  high  percentage  of  all  applications  for 
review. 

I  should  also  refer  to  the  considerable  number  of  cases 
which  have  been  presented  here  by  what  we  now  know  as 
special  interest  groups.  I  think,  for  example,  of  the  work 
done  in  the  early  days  of  the  NAACP,  which  was  represented 
here  by  one  of  the  country's  great  lawyers,  Charles  Hamilton 
Houston,  work  which  was  carried  on  later  with  great  ability 
by  Thurgood  Marshall.  And  I  may  mention  the  work  done 
by  lawyers  representing  groups  interested  in  the  rights  of 
women,  of  whom  Ruth  Bader  Ginsburg  was  an  outstanding 
example. 

The  bar  of  this  Court  has  a  somewhat  difficult  role.  As  I 
have  indicated,  it  is  scattered  and  diverse.  It  can  never  be 
assembled,  nor  is  it  possible  to  take  a  consensus  of  the  bar. 
Nevertheless  it  is  clear,  at  least  to  me,  that  the  Court  could 
not  get  along  without  it. 

Yet,  the  demands  on  the  Court  are  such  that  the  bar  finds 
difficulty  in  making  its  full  contribution.  Fifty  years  ago 
when  the  Court  first  met  in  this  building,  it  heard  arguments 
five  days  a  week  for  a  total  of  about  75  days  a  year.  Now  it 
hears  arguments  for  about  45  days  during  the  year. 

Fifty  years  ago,  the  time  made  available  for  oral  argu- 
ments was  an  hour  on  each  side  and  there  were  frequent  sub- 
stantial allowances  of  additional  time.  Now  the  time  allotted 
is  30  minutes  on  a  side  and  additional  time  is,  shall  I  say,  a 
very  scarce  commodity. 


XII  50TH  ANNIVERSARY  PROCEEDINGS 

This  inevitably  presents  problems  for  the  oral  advocate  and 
requires  a  wholly  different  type  of  argument  from  that  which 
was  customary  even  50  years  ago.  The  lawyer  today  can 
rarely  deal  with  his  case  as  a  case.  He  has  to  pick  out  cer- 
tain salient  points  and  hope  that,  with  the  welcome  question- 
ing, he  will  have  time  to  deal  with  the  matters  he  regards  as 
vital. 

I  think  that  the  briefs  today  are  on  average  much  better 
than  they  were  50  years  ago,  probably  more  improved  than  is 
commonly  recognized.  But  oral  argument  often  remains  a 
difficult  and  somewhat  tantalizing  field. 

This  Court  moved  into  this  great  building  50  years  ago 
today.  According  to  the  newspaper  articles,  the  first  words 
spoken  by  Chief  Justice  Hughes  in  this  courtroom  were:  "Are 
there  any  admissions?"  Thus  was  the  bar  recognized,  and 
thus  has  it  been  recognized  at  every  session  since. 

The  Court  heard  no  arguments  on  the  opening  day.  There 
were,  however,  many  admissions,  including  Harold  B. 
Willey,  Chief  Deputy  Clerk  of  the  Court,  and  Mary 
Agnes  Quinn,  the  Docket  Clerk  in  the  Solicitor  General's 
Office. 

The  first  business  before  the  Court  was  a  motion  made, 
appropriately  enough,  by  Solicitor  General  Stanley  F.  Reed. 
The  first  case  was  argued  before  the  Court  a  week  later  on 
October  14th.  That  was  the  case  of  Douglas  against  Wil- 
cutts.  It  was  a  tax  case,  and  it  was,  too,  the  first  case  whose 
decision  was  announced  in  this  room.  It  is  reported  in  296 
U.  S.,  page  1. 

Just  as  we  are  hearing  these  days  in  cases  before  the  Court 
about  non-bank  banks,  verbally  a  rather  odd  concept,  I  think 
I  may  well  close  these  remarks  by  referring  to  the  non-bar 
bar.  For  the  brief  for  Douglas  in  that  case  was  written 
by  a  young  lawyer  who  had  graduated  from  the  Harvard  Law 
School  in  1932  and  had  not  yet  completed  the  three  years  re- 
quired for  admission  here.  Thus  his  name,  though  on  the 
brief,  does  not  appear  in  the  United  States  Reports,  since  he 
was  a  member  of  the  non-bar  bar. 


50TH  ANNIVERSARY  PROCEEDINGS  xm 

He  was,  though,  well  worthy  of  the  assignment.  His 
name  later  became  well  known  here.  He  was  Harry  A. 
Blackmun. 


CHIEF  JUSTICE  BURGER:  Thank  you,  Mr.  Griswold. 
Mr.  Attorney  General. 


Attorney  General  Meese:  MR.  CHIEF  JUSTICE  and  may  it 
please  the  Court: 

It  is  a  privilege  for  me  to  be  here  today  representing  the 
Department  of  Justice  and  the  Executive  Branch  of  the  Gov- 
ernment in  these  proceedings. 

Fifty  years  ago  on  the  date  that  we  are  commemorating 
here,  this  nation  was  in  the  midst  of  a  great  Depression.  To 
borrow  Tom  Paine's  language  of  an  earlier  critical  period 
in  our  history,  it  was  a  crisis  that  truly  did  try  men's 
souls. 

The  problems  of  that  era  were  deeper  than  economic  de- 
spair and  Depression.  The  deepest  problem,  the  greatest 
threat  of  that  time,  was  that  our  very  system  of  government 
had  been  called  into  question.  It  was  a  time  where  our  fun- 
damental precepts  of  democracy  were  being  challenged  from 
without  as  well  as  from  within. 

Our  great  national  economic  tragedy  came  at  a  time  when 
new  and  foreign  ideologies  were  attacking  the  very  soul 
and  spirit  of  free  and  democratic  institutions  around  the 
world.  The  communist  and  fascist  movements  abroad  were 
gaining  strength  and  sought  to  promote  themselves  as  the 
dominant  force  in  the  world,  at  the  expense  of  liberty  and 
peace. 

In  the  midst  of  an  increasingly  confused  and  confusing 
world,  the  structure  we  honor  today  arose  here  in  our 
nation's  capital.  As  though  to  serve  as  a  moral  beacon  to 
all  the  world,  the  new  building  of  the  Supreme  Court  stood 


xiv  50TH  ANNIVERSARY  PROCEEDINGS 

forth,  dedicated  to  that  most  basic  principle  of  civilization, 
the  rule  of  law. 

Equal  justice  under  law,  that  is  what  we  as  a  people  stood 
for  then,  as  we  had  since  the  founding  of  our  Republic;  and 
that  is  what  we  as  a  people  stand  for  today. 

Now  as  then,  this  Court  in  many  ways  represents  our 
national  vision  of  a  just  and  civilized  world.  As  an  impartial 
and  independent  institution  under  our  Constitution,  the 
Supreme  Court,  symbolic  of  our  entire  Judiciary,  gives  prac- 
tical effect  to  the  idea  of  the  rule  of  law. 

In  The  Federalist  Papers,  as  in  other  writings  during  our 
founding  period,  this  Court  was  deemed  to  be  an  essential 
part  of  that  new  science  of  government  which  had  led  to  the 
framing  of  the  Constitution.  Alexander  Hamilton  confessed 
that  under  the  previous  Articles  of  Confederation  the  lack  of 
a  judiciary  was  a  crowning  defect.  After  all,  he  said,  'laws 
are  a  dead  letter  without  courts  to  expound  and  define  their 
true  meaning  and  operation." 

Indeed,  Hamilton  went  on  to  say  that  "[t]he  complete 
independence  of  the  courts  of  justice  is  peculiarly  essen- 
tial in  a  limited  Constitution."  He  concluded  that  "[a] 
constitution  is,  in  fact,  and  must  be  regarded  by  the 
judges,  as  a  fundamental  law."  Without  this  understanding 
and  without  an  independent  judiciary  to  guard  the  lines  and 
the  limits  of  the  original  Constitution,  all  the  "particular 
rights  or  privileges"  of  that  Constitution  "would  amount  to 
nothing." 

The  magnificent  structure  in  which  we  are  now  gathered 
symbolizes  both  the  necessary  independence  and  the  con- 
stitutional integrity  of  the  Supreme  Court.  It  stands 
apart  from,  yet  is  near  to,  the  homes  of  the  other  two 
branches. 

It  is  a  serious  and  a  solemn  place.  In  terms  of  those  who 
wrote  in  The  Federalist  Papers,  there  is  no  wielding  of  the 
sword  nor  control  of  the  purse  strings  here.  There  is,  as  the 
founders  prescribed,  only  judgment. 


50TH  ANNIVERSARY  PROCEEDINGS  xv 

I  congratulate  this  Court  as  it  celebrates  its  first  50  years 
in  this  magnificent  marble  building,  a  temple  of  reason,  a 
temple  of  justice,  and  a  temple  of  law. 

Thank  you. 


CHIEF  JUSTICE  BURGER:  Thank  you,  Mr.  Attorney 
General. 

The  Court  recognizes  Mr.  William  Falsgraf,  the  President 
of  the  American  Bar  Association,  to  speak  for  the  legal  pro- 
fession as  a  whole.  Mr.  Falsgraf. 


Mr.  Falsgraf:  MR.  CHIEF  JUSTICE  and  may  it  please  the 
Court: 

I  am  truly  delighted  to  bring  the  congratulations  and  best 
wishes  of  the  American  Bar  Association  and  in  fact  all  of  the 
lawyers  of  America  as  the  Supreme  Court  celebrates  50 
years  in  this  magnificent  hall.  As  spokesman  for  the  Ameri- 
can legal  profession,  I  want  to  express  on  behalf  of  my  col- 
leagues across  the  country  our  profound  respect  for  the 
Court,  both  before  and  after  it  obtained  this  permanent 
home. 

We  know  that  for  some  144  years  the  Court  performed  its 
constitutional  duties  with  dedication  and  often  with  brilliance 
despite  the  lack  of  an  adequate  and  dignified  quarters.  Nev- 
ertheless, there  is  indeed  symbolic  importance  in  its  having 
an  impressive  and  dignified  home. 

Our  Association  has  recognized  and  acknowledged  that  fact 
since  the  first  foundation  stone  of  this  building  was  laid  some 
53  years  ago.  For  we  recognize  that  appropriate  physical 
surroundings  are  essential  in  order  for  the  Court  to  serve  as 
our  nation's  primary  symbol  of  the  rule  of  law. 

Generations  of  Americans  and  guests  from  around  the 
world  have  visited  this  building  and  been  overwhelmed  by  its 
grace  and  by  its  dignity.  This  is  indeed  a  hallowed  place,  an 
appropriate  acknowledgment  by  the  people  of  the  United 


xvi  50TH  ANNIVERSARY  PROCEEDINGS 

States  of  the  critical  role  which  the  third  coequal  branch  of 
government  plays  in  our  constitutional  form  of  government. 
The  special  feeling  that  we  in  the  ABA  have  for  this  build- 
ing was  first  given  expression  by  leaders  of  the  Association 
who  were  intimately  involved  in  the  construction  and  dedica- 
tion of  this  edifice.  The  energy  and  the  leadership  with  re- 
spect to  the  construction  of  this  building  of  course  came  from 
Chief  Justice  William  Howard  Taf  t,  who  was  a  former  Presi- 
dent of  the  American  Bar  Association  as  well  as  a  former 
President  of  the  United  States  of  America.  And  inciden- 
tally, Chief  Justice  Taf  t  was  a  fellow  Ohioan,  of  which  I  am 
personally  quite  proud. 

Unfortunately,  Chief  Justice  Taf  t  died  in  1930,  before  his 
dream  of  a  permanent  home  for  this  Court  could  take  shape. 
But  his  widow  was  present  at  the  cornerstone  laying  of  this 
building  in  1932.  This  was  indeed  an  appropriate  recognition 
of  the  leading  role  which  Chief  Justice  Taf  t  played  in  the 
planning  for  and  the  ultimate  approval  for  the  design  and  con- 
struction of  this  temple  of  the  law. 

All  three  speakers  at  the  laying  of  the  cornerstone  had 
served  or  were  serving  as  President  of  the  American  Bar  As- 
sociation. Guy  Thompson  of  St.  Louis,  who  represented  the 
legal  profession,  was  of  course  then  Acting  President  of  the 
American  Bar  Association.  The  Honorable  John  W.  Davis, 
who  spoke  for  the  bar  of  the  Supreme  Court,  had  served  as 
President  of  the  American  Bar  Association  in  1922-23.  And 
Chief  Justice  Hughes  himself,  speaking  for  the  Court,  had 
been  ABA  President  in  1924-25. 

The  text  of  these  speeches  were  among  the  articles  that 
were  placed  within  the  cornerstone  of  this  building.  In  his 
remarks,  President  Thompson  predicted  that  this  building 
would  be  "a  monument  to  justice,"  and  how  prophetic  those 
comments  have  become. 

John  W.  Davis  called  this  place  "the  abode  of  the  peace- 
maker" and  "the  house  of  refuge  for  all  such  as  are 
oppressed." 


50TH  ANNIVERSARY  PROCEEDINGS  XVII 

In  response,  Chief  Justice  Hughes  said:  "This  building  is 
the  symbol  of  the  distinctive  character  of  the  Republic,  the 
symbol  of  its  faith.  It  suggests  permanence,  not  the  perma- 
nence of  stone  and  steel  but  of  an  idea,  a  testimonial  to  an 
imperishable  idea  of  liberty  under  law. " 

Well,  tremendous  changes  have  swept  over  this  land  in  the 
past  50  years,  and  yet  the  dedicatory  sentiments  of  rny 
predecessors,  like  the  beauty  and  the  grace  of  this  building, 
are  as  relevant  and  apt  today  as  they  were  50  years  ago. 

As  we  look  to  the  Court's  next  50  years  and  beyond,  it  is 
entirely  appropriate  for  us  to  pause  and  to  do  as  we  are 
today,  acknowledging  that  which  is  past.  When  this  Court 
was  established,  constitutional  government  was  indeed  a 
revolutionary  idea,  and  perhaps  still  is  in  other  parts  of  the 
world.  The  form  of  nearly  every  other  government  which 
was  then  in  existence  almost  200  years  ago  has  changed  so 
drastically  as  to  be  virtually  unrecognizable  to  their  subjects 
of  two  centuries  ago. 

Many  of  the  fundamental  tenets  of  scientific  knowledge 
which  were  the  presumption  of  that  age  have  been  found  to 
be  flawed  when  examined  under  the  light  of  newly  discovered 
truths  involving  matter,  energy,  space,  and  time.  The  in- 
dustrial revolution  has  come  and  gone,  the  atomic  age  has 
arrived.  And  yet,  our  nation  and  the  Constitution  under 
which  it  operates  have  not  only  endured,  they  have  thrived. 

How  fitting  it  is,  then,  that  we  celebrate  today  the  tangible 
symbol  of  that  durability  which  is  this  building.  The  Ameri- 
can people  owe  a  debt  beyond  counting  to  the  Supreme  Court 
of  the  United  States  as  the  definitive  interpreter  of  the 
Constitution,  our  highest  law. 

This  Court  is  not  only  the  refuge  for  all  such  as  are 
oppressed,  it  is  the  bulwark  of  freedom  for  every  citizen, 
regardless  of  his  or  her  station  in  life.  For  just  as  the 
cornerstone  serves  as  the  support  for  the  walls  and  the  roof 
of  this  building,  so  the  Constitution  serves  as  the  support 
for  our  Republic  and  the  fundamental  freedoms  that  have 
allowed  our  citizens  to  make  it  great. 


xvni  50TH  ANNIVERSARY  PROCEEDINGS 

Let  us  give  thanks,  then,  first  to  the  architects  of  this 
building  and  all  of  those  who  labored  to  make  that  design  a 
reality.  But  let  us  give  greater  thanks  to  the  architects  of 
our  Constitution  and  those  who  labor  within  these  laws  to 
make  the  blessings  of  freedom  secured  by  that  Constitution  a 
continuing  reality. 


CHIEF  JUSTICE  BURGER:  Thank  you,  Mr.  Falsgraf. 

As  Mr.  Griswold  has  noted  in  his  excellent  statement, 
when  the  Court  gathered  here  precisely  50  years  ago  today  at 
12:00  noon  it  did  not  undertake  to  hear  oral  arguments,  but 
formally  opened  the  Term  and  then  retired  to  the  Conference 
Room  and  undertook  to  deal  with  the  accumulation  of  peti- 
tions for  certiorari,  jurisdictional  statements,  and  motions 
that  had  accumulated  during  the  summer. 

In  recent  years,  the  pressure  of  the  docket  has  led  the 
Court  to  hold  the  conferences  on  the  summer  accumulation  in 
the  last  week  of  September  so  that  we  could  begin,  as  we  did 
this  morning,  at  10:00  o'clock  to  hear  oral  arguments. 

The  tortoise,  which  Cass  Gilbert  employed  in  much  of  his 
design  in  this  Building,  is  of  course,  a  more  ancient  symbol  of 
justice  than  the  blindfolded  lady  for  both  justice  and  the  law 
are  like  the  tortoise,  rather  than  the  swift  hare  of  the  fable. 

Yet  some  changes  have  occurred,  as  some  of  the  speakers 
have  commented.  In  1935,  as  Mr.  Griswold  said,  the  Court 
allowed  one  hour  for  each  side  and  sometimes  more,  and  was 
able  to  hear  two  cases  each  day  or  ten  cases  a  week  with  a 
conference  on  Saturday.  This  was  changed  about  15  years 
ago  when  we  limited  the  oral  argument  to  30  minutes  on  each 
side.  Now  we  hear  12  cases  a  week,  leaving  Thursday  free 
for  the  Justices  to  prepare  for  the  Friday  Conference.  On 
Saturday  and  on  Sunday,  the  Justices  are  still  engaged  in  the 
work  of  the  Court.  The  time  allowed  for  oral  argument  is 
now  very  different  from  an  earlier  day. 

In  the  Dartmouth  College  case,  for  example,  after  some 
days  of  oral  argument,  we  can  well  imagine  that  Chief  Justice 


50TH  ANNIVERSARY  PROCEEDINGS  Xix 

Marshall  may  have  said  to  Daniel  Webster:  "Mr.  Webster, 
you  have  now  had  three  and  a  half  days;  do  you  think  you  will 
finish  this  week?"  Contrast  that,  if  you  will,  with  the  leg- 
end—and it  has  not  been  verified— that  when  the  red  light 
came  on  in  Chief  Justice  Hughes'  time,  he  would  stop  a 
lawyer  in  the  middle  of  the  word  "if." 

Of  course,  we  are  much  more  liberal  now.  We  allow  a 
lawyer  to  finish  the  sentence  that  is  unfolding  when  the 
red  light  goes  on,  provided,  of  course,  the  sentence  is  not 
too  long. 

Sometimes,  as  close  observers  of  the  Court  observed,  we 
Justices  do  not  always  fully  agree  about  everything,  and  that 
was  true  when  the  Chief  Justice  began  his  efforts  to  have  this 
Building  erected.  Some  of  the  Justices  felt  it  was  not  a  good 
idea  for  the  Court  to  lose  regular  contact  with  the  leaders  of 
Congress  whose  support  was  needed  for  whatever  it  was  that 
the  Court  needed. 

There  may  have  been  some  merit  to  that  view,  but  Chief 
Justice  Taft  was  concerned  more,  as  the  speakers  have  indi- 
cated, with  matters  other  than  the  comfort  and  the  needs  of 
the  Justices.  He  was  profoundly  concerned  with  the  need 
for  a  visible  symbol  of  the  independence  of  the  third  branch  of 
government  as  a  separate  and  a  coequal  branch. 

The  differing  views  of  the  Justices  at  that  time  was  illus- 
trated in  a  story,  perhaps  a  legend,  of  1935  that  one  Justice 
is  reported  to  have  said  that  he  expected  each  member  of  the 
Court  would  be  provided  with  an  elephant  to  ride  into  the 
Building  mounted  on  that  elephant  much  like  a  rajah.  Just 
how  those  elephants  were  going  to  negotiate  those  steep 
stairs  out  in  front  of  the  Building  has  never  been  made  clear. 

Habits  of  judges  and  Justices,  as  with  lawyers,  change 
slowly.  Having  worked  in  their  homes  with  their  clerks  and 
secretaries  at  hand,  there  was  no  great  rush  on  the  part  of 
the  Justices  to  occupy  this  splendid  building,  with  luxurious 
three-room  suites  provided  for  each  Justice. 

Chief  Justice  Hughes  himself  continued  to  work  out  of  his 
home  for  the  most  part  and  came  to  Court,  as  he  put  it, 


xx  50TH  ANNIVERSARY  PROCEEDINGS 

chiefly  to  hang  his  hat  and  also  to  take  care  of  the  rapidly 
increasing  administrative  duties  of  that  office. 

When  Hugo  Black  was  confirmed  as  a  member  of  the  Court 
he  had  the  choice  of  any  one  of  eight  suites  in  the  Building, 
and  he  wisely  selected  a  very  choice  corner  suite  and  occu- 
pied that  space  throughout  his  entire  tenure  on  the  Court. 

With  all  his  foresight,  Chief  Justice  Taf  t  and  the  architect 
were  not  able  to  fully  anticipate  the  future  needs  of  the 
Court,  and  so  about  15  years  ago,  Justices'  chambers  were 
enlarged  by  converting  each  of  three  suites  into  two  and  then 
creating  three  sets  of  new  chambers. 

This  required  that  the  Clerk  of  the  Court  move  from  this 
floor  to  the  ground  floor.  Previously,  Chief  Justice  Warren 
had  moved  the  Administrative  Office  of  the  United  States 
Courts  out  of  this  Building  in  order  to  meet  the  growing 
needs  of  the  Court  itself. 

Electric  typewriters  supplanted  the  manual  power  ma- 
chines, and,  in  turn,  they  were  recently  replaced  by  word 
processing  machines,  which  then  in  turn  supplanted  the  hot 
lead  typesetting  process  used  for  preparing  the  opinions  of 
the  Court. 

The  classical  grandeur  of  this  Building  has  been  enhanced 
by  the  advent  of  the  Office  of  the  Curator  of  the  Court.  Miss 
Kathy  Hetos,  the  first  Curator,  served  from  1974  to  1976  and 
was  succeeded  by  Miss  Gail  Galloway,  the  present  Curator. 
Working  with  that  man-of-all-skills,  Mr.  Edward  Douglas,  a 
long-time  member  of  the  Supreme  Court  staff,  the  Lower 
Great  Hall  has  become  a  museum  of  the  history  of  the  Court 
and  the  history  of  the  Building  itself.  The  work  of  these  peo- 
ple can  be  observed  by  those  of  you  who  take  the  time  to  see 
the  special  exhibit  that  has  just  been  completed  on  Chief 
Justice  Taf  t  in  the  Lower  Great  Hall. 

In  these  efforts  to  make  this  great  symbol  of  justice  come 
alive,  the  cooperation  of  Mr.  George  White,  the  Architect  of 
the  Capitol,  has  been  very  important.  Mr.  White  turned  to 
architecture  only  after  graduating  from  the  Harvard  Law 
School,  and  naturally  has  a  sensitive  appreciation  of  both  the 
work  of  the  Architect,  Cass  Gilbert,  and  of  the  law. 


50TH  ANNIVERSARY  PROCEEDINGS  XXI 

The  Attorney  General  and  the  President  of  the  American 
Bar  Association  have  alluded  to  world  events  occurring  soon 
after  the  Court  sat  here,  some  of  them  before  the  Court  sat 
here.  Few  statesmen  of  Europe  and  probably  fewer  in  this 
country  fully  understood  the  meaning  of  the  rise  of  men  like 
Mussolini  and  Hitler  and  the  expansion  of  communism  and 
the  other  dictatorships  of  the  world  of  the  1930's. 

Whether  Chief  Justice  Taf  t  saw  the  trends  in  Europe  as 
undermining  justice  and  were  to  destroy  established  systems 
of  freedom,  we  do  not  know.  What  is  important  was  that  at 
a  great  cataclysmic  epoch  in  history,  when  dictators  first 
destroyed  independent  courts  and  thus  left  no  barriers  to 
protect  free  speech  and  free  press  and  other  freedoms,  this 
Building  became  a  symbol,  as  the  Attorney  General  and  Mr. 
Falsgraf  have  said,  not  only  to  Americans  but  to  the  whole 
world,  a  symbol  of  the  role  and  the  function  of  a  truly  inde- 
pendent judiciary. 

So,  as  we  pause  for  an  hour  to  take  note  of  this  fiftieth  year 
of  a  great  monument  to  justice  and  to  freedom  under  law,  we 
do  well  to  remember  both  the  events  of  interest  in  that  half 
century  and  the  meaning  in  a  larger  sense,  of  this  edifice  as  a 
symbol  of  a  system  that  has  endured  for  two  centuries. 
With  all  of  the  shortcomings  of  human  institutions,  our  sys- 
tem remains  a  beacon  and  a  guide  to  people  everywhere  who 
seek  freedom. 

In  laying  the  cornerstone  of  the  Building,  Chief  Justice 
Hughes  said:  "This  Republic  endures  and  this  Building  is  the 
symbol  of  its  faith." 

Mr.  Griswold,  Mr.  Attorney  General,  Mr.  Falsgraf,  on  be- 
half of  the  Court  I  thank  you  for  your  part  in  this  proceeding, 
the  record  of  which  will  become  part  of  the  permanent 
records  of  this  Court. 


PRESENTATION  OF  THE  SOLICITOR  GENERAL 
SUPREME  COURT  or  THE  UNITED  STATES 

MONDAY,  NOVEMBER  4,  1985 


Present:  CHIEF  JUSTICE  BURGER,  JUSTICE  BRENNAN, 
JUSTICE  WHITE,  JUSTICE  MARSHALL,  JUSTICE  BLACKMUN, 
JUSTICE  POWELL,  JUSTICE  REHNQUIST,  JUSTICE  STEVENS, 
and  JUSTICE  O'CONNOR. 


Mr.  Deputy  Solicitor  General  Lawrence  G.  Wallace  pre- 
sented the  Honorable  Charles  Fried,  Solicitor  General  of  the 
United  States. 

THE  CHIEF  JUSTICE  said: 

Mr.  Solicitor  General,  the  Court  welcomes  you  to  the  per- 
formance of  the  important  office  that  you  have  assumed,  to 
represent  the  government  before  this  Court.  Your  commis- 
sion will  be  duly  recorded  by  the  Clerk. 


XXIII 


DEATH  OF  JUSTICE  STEWART 

SUPREME  COURT  OF  THE  UNITED  STATES 

MONDAY,  DECEMBER  9,  1985 


Present:  CHIEF  JUSTICE  BURGER,  JUSTICE  BRENNAN, 
JUSTICE  WHITE,  JUSTICE  MARSHALL,  JUSTICE  BLACKMUN, 
JUSTICE  POWELL,  JUSTICE  REHNQUIST,  JUSTICE  STEVENS, 
and  JUSTICE  O'CONNOR. 


THE  CHIEF  JUSTICE  said: 

It  is  my  sad  duty  to  announce  that  our  distinguished  col- 
league and  friend,  Justice  Potter  Stewart,  died  Saturday, 
December  7,  1985,  in  Hanover,  New  Hampshire. 

Justice  Stewart  served  as  a  Judge  of  the  United  States 
Court  of  Appeals  for  the  Sixth  Circuit  from  1954  to  1958 
when  he  was  appointed  to  this  Court  to  succeed  Justice  Har- 
old Burton.  He  took  office  on  October  14,  1958,  and  served 
as  an  Associate  Justice  for  23  years  until  his  retirement  in 
1981  at  the  close  of  the  1980  Term  of  Court.  He  had  served 
his  country  for  four  years  in  the  United  States  Navy  in  World 
War  II. 

His  appointment  to  the  Court  of  Appeals  in  1954  came  at 
the  age  of  39,  making  him  the  youngest  Federal  Judge  in  the 
country  at  that  time.  His  opinions  on  a  wide  range  of  sub- 
jects appear  in  nearly  100  volumes  of  the  United  States  Re- 
ports covering  a  period  of  great  social,  political  and  economic 
development  reflecting  the  turmoil,  upheavals  and  changes 
taking  place  throughout  the  world. 

Those  changes  had  a  marked  impact  on  the  kinds  of  issues 
coming  into  all  courts  including  this  Court.  In  meeting  these 
issues  in  the  setting  of  the  dramatic  changes  in  the  world  at 
large,  Justice  Stewart  exhibited  a  steadiness  of  purpose, 
comprehension  and  grasp  of  contemporary  law  and  its  ante- 
cedents in  the  Common  Law. 

xxv 


xxvi  DEATH  OF  JUSTICE  STEWART 

His  work  as  a  Justice  rejected  the  popular  labels  and 
categorizations  of  judges,  Adhering  to  precedent  he  sought 
to  resolve  cases  on  narrow  grounds  leaving  related  but  unre- 
solved issues  to  the  future.  He  was  particularly  concerned 
that  the  rights  of  privacy  of  person  and  home,  protected 
by  the  Fourth  Amendment,  be  observed  by  all  levels  of  gov- 
ernment, Few  legal  issues  concerned  him  more  than  the 
protection  of  the  rights  envisaged  by  those  who  drafted  the 
Constitution  and  the  Bill  of  Rights, 

We  mourn  Justice  Stewart's  passing  but  we  will  not  forget 
the  comradeship  and  friendship  that  overshadowed  the  ines- 
capable differences  arising  in  the  processes  of  resolving  the 
difficult  issues  that  find  their  way  to  this  Court. 

I  speak  for  all  members  of  the  Court  in  expressing  our 
profound  sympathy  to  Mrs,  Stewart  and  her  family, 

In  due  course,  the  traditional  memorial  service  of  the  Bar 
of  this  Court  and  the  Court  will  be  conducted  in  this  Chamber 
to  pay  our  respects  more  fully  to  Justice  Stewart. 


TABLE  OF  CASES  REPORTED 


NOTE:  All  undesignated  references  herein  to  the  United  States  Code  are 
to  the  1982  edition. 

Cases  reported  before  page  801  are  those  decided  with  opinions  of  the 
Court  or  decisions  per  curiam.  Cases  reported  on  page  801  et  seq.  are 
those  in  which  orders  were  entered.  The  opinion  reported  on  page  1301 
et  seq.  is  that  written  in  chambers  by  an  individual  Justice. 


Page 

Abbeville  School  Dist.;  Wharton  v. 1086 

Abbitt  v.  Saied 997 

Abdullah  v.  New  York    919 

Abdul-Rahim  v.  Hardcastle    1010 

Abernathy  v.  United  States 854 

Abington  Memorial  Hospital;  Heckler  v.         863 

Abraham  u  United  States 853 

Abrams  v.  Roman 864 

Abrams;  Roman  v.        860 

Acadian  Metropolitan  Code  Authority;  Kaltenbach  v. 859,906 

Accident  Fund  v.  Baerwaldt 1020 

Accordino  v.  Board  of  Review,  Ohio  Bureau  of  Employment  Services  841 

Acosta  v.  Kraco,  Inc 1022 

Action  Real  Estate  v.  El  Paso  Bd.  of  Realtors 1102 

Adams  v.  Brierton .  .  1010 

Adams  v.  Graham 835 

Adams  v.  Lykes  Brothers  S.S.  Co 840 

Adams  v.  Mcllhany 1101 

Adams  v.  United  States 971,1013 

Adams  v.  Wainwright .    .  1073 

Ad  Hoc  Committee  for  Akwesasne  Rights  v.  Reynolds  Metals  Co,  1021 

Adkins  v.  Times-World  Corp 1109 

Administrator  of  Veterans  Administration;  Pappanikolaou  v.  .  851 

Administrators  of  Tulane  Educational  Fund  u  Cooley 820 

Adventurers  Whitestone  Corp.  v.  New  York  City           .          ...  935 

A.  E.  R.  u  Florida    .  .               1011 

Aetna  Life  Ins.  Co.  v.  Lavoie 811 

Affiliated  Capital  Corp.;  Gulf  Coast  Cable  Television  Co.  u     ....  1053 

XXVII 


xxvni  TABLE  OF  CASES  REPORTED 

Page 

Afro- American  Police  Assn. ,  Inc.  v.  United  States 1080 

Aguilera  v.  Cook  County  Police  and  Corrections  Merit  Bd 907 

Ahmed  v.  Hughes  Aircraft  Co 1067 

Aho  v.  California 995 

Aiello  v.  Massachusetts 919 

Aiken;  Roach  v.   1039 

Aiken;  Yates  v. 896 

Air  Line  Pilots  Assn.;  Ozark  Air  Lines,  Inc.  v. 903 

Air  Line  Pilots  Assn. ;  Peterson  v. 946 

Air  Line  Stewards  &  Stewardesses  v.  American  Airlines,  Inc 1059 

Air  Transport  Assn.  u  United  States 1105 

Ajac  Transmission  Parts  Corp.  v.  Transgo,  Inc 1059 

Akerman  u  Board  of  Higher  Ed.  of  New  York  City 846 

Akron  Airport  Post  No.  8975;  Ohio  v. 1058 

Alabama;  Bell  v. 1038 

Alabama  v.  Callahan    1019 

Alabama;  Campbell  v. 1021 

Alabama;  Chatman  v. 1022 

Alabama;  Clemmons  v. 837 

Alabama;  Colonial  Pipeline  Co.  v. 936 

Alabama;  CoweU  v. 1035 

Alabama;  Felder  v. 976 

Alabama;  Fleming  v. 857 

Alabama;  Grayson  v. 865 

Alabama;  Hamer  v. 1033 

Alabama;  Harrell  v. 935 

Alabama;  Heath  u 82 

Alabama;  Kennedy  v. 975 

Alabama;  Meadows  v. 828 

Alabama;  Montgomery  v. .  904 

Alabama;  Scanlan  v.   1035 

Alabama;  Terry  v. 826 

Alabama  Dept.  of  Corrections  v.  Glover 806 

Alabama  State  Personnel  Bd.;  James  v.     825 

Alaska;  Ames  v. 951 

Alaska;  Atlantic  Richfield  Co.  v. 1043 

Alaska;  Goodlataw  v. 813,996 

Alaska;  Painter  u 990 

Alaska  v.  United  States 968 

Alaska;  United  States  v. .  1044 

Albany;  Call  v.     1057 

Albers;  Whitley  v. 809 

Alberts;  Carroll  v. 1013 

Alcoa  v.  Myers 811,901 


TABLE  OF  CASES  REPORTED  xxix 

Page 

Alderman  v.  Georgia 911,1000 

Aldridge  v.  Morris 1062 

Aleem  u  General  Felt  Industries,  Inc 813 

Aleem  v.  Municipal  Court  of  Cal. ,  Los  Angeles  County 832 

Aleem  v.  Spigner 832 

Alexander,  In  re 977 

Alexander  Grant  &  Co. ;  Kahn  v. 1058 

Alexander  Grant  &  Co. ;  Tiffany  Industries,  Inc.  v. 1058 

Alford;  Carey  v. 856 

Allain;  Papasan  v.        1004 

All  American  Life  &  Cas.  Co.  v.  Oceanic  Trade  Alliance  Coun.  Intl  819 

Allbritton  Communications  Co.  v.  National  Labor  Relations  Bd.    . .  1081 

Allen  v.  California 1068 

Allen  v.  Illinois      979,1080,1100 

Allen  v.  Kinloch    946 

Allen  v.  Merit  Systems  Protection  Bd 834 

Allen  v.  National  Labor  Relations  Bd 1101 

Allen  v.  Pennsylvania 842 

Allen  v.  United  States 983,1021 

Allen  Orchards  v.  United  States 818 

Allied  Bond  &  Collection  Agency  v.  Massachusetts ...  991 

AUinder;  Hedges  v. 892 

Allsbrook;  Strader  v. 834 

Almon  v.  Sharp 1010 

Along!  v.  United  States  .  .               906 

Altemose  Construction  Co.;  Building  &  Constr.  Trades  Council  v  898 

Amadi  v.  United  States  ....            1064 

Aman;  Plummer  v.      1058 

Amato;  Western  Union  International,  Inc.  v. .      .  1113 

Ambrose  v.  Sperry  Rand  Corp . .      .  947 

Amend  v.  Poff ....              ....  849 

American  Airlines,  Inc.;  Air  Line  Stewards  &  Stewardesses  v. .  .  .  1059 

American  Airlines,  Inc.  v.  United  States 1001 

American  Bar  Endowment;  United  States  v.            ....            .    .  1004 

American  Cetacean  Society;  Baldrige  v. ...  1053 

American  Cetacean  Society;  Japan  Whaling  Assn.  v.  .                  .  1053 

American  College  of  Obstetricians  and  Gynecologists;  Thornburgh  v.  809 

American  College  of  Physicians;  United  States  v.  .    . .                  .  1017 

American  Hospital  Assn. ;  Heckler  v. 810 

American  Ins.  Assn.  v.  Chu  .                 ....           ....            .    .  803 

American  Lutheran  Church,  Inc. ;  Thomsen  v. 802 

American  Medical  International,  Inc.;  Scheller  v.   ...          ...  947 

American  Methyl  Corp.  v.  Motor  Vehicle  Mfrs.  Assn.  of  U.  S.  1082 

American  Mut.  Ins.  Co.;  Minnesota  Timber  Producers  Assn.  v.  1059 


xxx  TABLE  OF  CASES  REPORTED 

Page 

American  Petrofina  Co,  of  Tex.  u  Oil  Workers 943 

American  S.S.  Co.  u  Obad 848 

American  Telephone  &  Telegraph  Co. ;  David  v. 832 

Ames  v.  Alaska 951 

Amoco  Chemicals  Corp.;  Day  v. 1065 

Amuny  v.  United  States 818 

Anchorage  Mun.  Zoning  Bd.  of  Examiners  &  App. ;  Spendlove  v.  .  .  895 

Andersen  v.  Ciba-Geigy  Corp 995 

Anderson  v.  Liberty  Lobby,  Inc 811 

Anderson  v.  Stagner 857 

Anderson  v.  United  States 998,1068 

Anderson  County  v.  United  States 919 

Andino  v.  McCotter 839 

Angelastro;  Prudential-Bache  Securities  Inc.  v 935 

Angelone;  Pickard  v. 922 

Aniero  Concrete  Co.;  United  Pacific  Ins.  Co.  u 1033 

Ann  Arbor;  Hodges  v. 859 

Ann  Arbor;  Johnston  v.  947 

Anndep  S.S.  Corp.;  Collins  v. 820 

Anschuetz  &  Co.  v.  Mississippi  River  Bridge  Authority 812 

Ansonia  Bd.  of  Ed.  v.  Philbrook 1080 

Anthony  v.  United  States 1004 

Antone  v.  United  States 818 

Antonelli  v.  Illinois 1103 

Apex  Construction  Co.;  Sac  &  Fox  Tribe  v. 850 

Appleatchee  Riders  Assn. ;  Cheadle  v. 849 

Appleby;  Sarracen  v. 845 

Appoloney  v.  United  States 949 

Aragon;  Pappy,  Kaplon,  Vogel  &  Phillips  v. 1054 

Aragon  v.  Teamsters 902 

Aragon  v.  United  States 1054 

Araiza  v.  United  States 846 

Arango  v.  Compania  Dominicana  de  Aviacion    995 

Arango;  Florida  v. 806,1015 

Arbelaez  v.  United  States 907 

Arcara  v.  Cloud  Books,  Inc 978 

Arcara  v.  Village  Book  &  News  Store 978 

Argus  Chemical  Corp.  v.  Fibre  Glass-Evercoat  Co 903 

Ariyoshi  v.  Robinson . .  1018 

Arizona;  Bracy  v 1110 

Arizona;  Gannon  v. 1010 

Arizona;  Hartford  v.     863 

Arizona;  Hennessy  v. 1067 

Arizona;  Hooper  v. 1073 


TABLE  OF  CASES  REPORTED 

Page 

Arizona;  Hoosman  v. 841 

Arizona;  Martinez- ViUareal  v. 975 

Arizona;  Poland  v. 816,943 

Arkansas;  Bailey  u 866 

Arkansas;  Garrett  v. 823 

Arkansas;  Thomas  v. 821 

Arkansas;  Toland  v. 945 

Arkansas;  Westbrook  v. 1006 

Arkansas;  Williams  v. 844 

Arkansas;  Young  v. 1070 

Armstrong;  Froneberger  v. 1023 

Armstrong  Blum  Mfg.  Co. ;  Chambers  u 833 

Arn;  Thomas  v. 140,1111 

Arney  v.  Black 1084 

Arnold  v.  Reagan 835 

Arrow  Northwest,  Inc.  v.  Greater  Houston  Transportation  Co 903 

Arrow  Northwest,  Inc.  v.  Yellow  Cab  Co 903 

Ascani  v.  Hughes 1001 

Asmussen  v.  Austin 803 

Aspero  v.  Shearson  American  Express,  Inc 1026 

Associated  Gas  Distributors;  Pennzoil  Co.  v.   847 

Association.     For  labor  union,  see  name  of  trade. 

Atiyeh;  Thacker  v.    854 

Atkins,  In  re 808 

Atkins  v.  Rivera 1018 

Atlanta  Gas  Light  Co.  v.  Equal  Employment  Opportunity  Comm'n  968 

Atlantic  Richfield  Co.  v.  Alaska 1043 

Attorney  General;  Corley  v.         837 

Attorney  General;  Martin  v. 862 

Attorney  General  of  Ga.  v.  Hardwick    943 

Attorney  General  of  N.  J.  v.  Morrison        ...    815,917 

Attorney  General  of  N.  J.;  Williams  v.        838 

Attorney  General  of  N.  Y.  v.  Roman 864 

Attorney  General  of  N.  Y.;  Roman  v.      860 

Attorney  General  of  N.  C.  v.  Gingles      808 

Attorney  General  of  N.  C.;  Nantahala  Power  &  Light  Co.  u    1018 

Attorney  Grievance  Comm'n  of  Md.;  Jacob  v.      ....          905 

AT&T  Technologies,  Inc.  v.  Communications  Workers 814 

Atwell  v.  United  States 921 

Aubert;  Stanley  v.               981 

Auger;  Gregory  v.  .      ,          1035 

Augustyniak  v.  Koch 840,1015 

Auld  Co.  v.  Chroma-Graphics  Corp 825 

Aurand  v.  United  States 850 


xxxn  TABLE  OF  CASES  REPORTED 

Page 

Aurora  Civil  Service  Comm'n;  Bara  v. 995 

Aurora  Community  Hospital;  Heckler  v. 863 

Ausley  v.  Mitchell 1100 

Austad  v.  Risley 856 

Austin;  Asmussen  v. 803 

Austin  v.  Tennessee 1073 

Austintown  Bd.  of  Ed.;  Shuba  v. 1033 

Authier  v.  Ginsberg 888 

Automobile  Workers  v.  Brock 825,900 

Automobile  Workers;  Taylor  v. 1081 

Autorino  v.  Superintendent,  Arthur  Kill  Correctional  Facility 849 

Avant  Garde  Condominium  Assn.,  Inc.;  Zerman  v. 895,1077 

Avery  u  United  States 1055 

Avondale  Shipyards,  Inc.  v.  Rosetti 820 

Award  Service,  Inc.;  Northern  Cal.  Retail  Clerks  Union  &  Food 

Employers  Joint  Pension  Trust  Fund  v. 1081 

Awrey  v.  Progressive  Casualty  Ins.  Co 920 

Ayerst  Laboratories;  Helminski  v. 981 

Babcock  &  Wilcox  Co.;  Sims  v. 836 

Bad  Foot  v.  Bolt 855,1000 

Baer;  DuFresne  v. 817 

Baer;  Owens  v. 842 

Baerwaldt;  Accident  Fund  v. 1020 

Baerwaldt;  Food  &  Commercial  Workers  v. 1059 

Baig  v.  United  States 1103 

Bailey  v.  Arkansas 866 

Bailey  v.  Buckeye  Cellulose  Corp 863,1078 

Bailey  v.  Delaware     873 

Bair  v.  Trailer  Train  Co 1021 

Bair;  Whitley  v. 989 

Baker,  In  re 906 

Baker;  Baskerville  u 832 

Baker;  Boiling  v.   824 

Baker  v.  General  Motors  Corp 899 

Baker  v.  United  States 839,945,1077 

Baker  Coal  Co.  v.  United  States 945,1077 

Bakko;  Newman  u 833 

Balair,  Ltd.  v.  United  States 902 

Balchaitis  v.  United  States 901 

Baldrige  v.  American  Cetacean  Society      1053 

Ball  v.  United  States         950 

Ballam  v.  United  States    898,1078 

Baltezore  v.  Concordia  Parish  Sheriff's  Dept 1065 

Baltimore  Gas  &  Electric  Co.  v.  Heintz 847 


TABLE  OF  CASES  REPORTED          xxxm 

Page 

Baltimore  &  Ohio  R.  Co.;  Pittsburgh  Terminal  Corp.  v, 919 

Bandemer;  Davis  V. 991 

Bankers  &  Shippers  Ins.  Co.  of  N.  Y.  v.  Marshall 1056 

Bankers  Trust  Co.  v.  Metge 1072 

Bankers  Trust  Co.;  Metge  v. 1057 

Bank  of  America,  N.  T.  &  S.  A.;  F.  I.  Corp.  v. 850 

Bank  of  America,  N.  T.  &  S.  A.;  Fluidyne  Instrumentation  v..    .    .  850 

Bank  of  Ore.;  Independent  News,  Inc.  u 826 

Bara  v.  Aurora  Civil  Service  Comrn'n 995 

Baraldini  D.  United  States       841 

Barclays  American/Credit,  Inc.  v.  Quiller 1031 

Barclays  American/Credit,  Inc. ;  Quiller  v. 1031 

Barker  u  E.  I.  du  Pont  de  Nemours  &  Co 976 

Barker  u  Morris 1063 

Barlow  v.  Brewery  Workers    1009 

Barnes  u  Henderson 841 

Barnes;  Wilson  v. 907 

Barney  v.  Halperin 828 

Barnhill  v.  United  States 829 

Baron  v.  Meloni     1058 

Barrett  v.  United  States 923 

Barrett  v.  U.  S.  Customs  Service 812,984 

Barrientos  v.  United  States 1062 

Barry;  Currie  v 1060 

Barry  v.  United  States      1064 

Baxton  v.  California      841 

Barton;  McQueen  v, 1085 

Basin  Electric  Power  Cooperative  v.  Midwest  Processing  Co.  .    .    .  1083 

Baskerville  v.  Baker 832 

Bates  v.  Kerr     ...      .              830 

Batson  u  Kentucky  ....  812,942 

Baxter  v.  Georgia ....             935 

Baxter  V.  United  States               1085 

Bazemore  u  Friday    .    .  ...  978,1080,1099 

Beachley  Investments,  N.  V.;  Koscot  Interplanetary,  Inc.  u  1103 

Beacom;  Exotic  Coins,  Inc.  v. 892 

Beans  v  Black  ....             .      .                 .      .  979 

Beard  v.  United  States 907 

Bearden;  Bray  v.  .  .  .               841 

Beary  v.  West  Publishing  Co 903 

Beck  v.  Georgia       .                872 

Beckham  v.  Harris .                     .    .  903 

Beckley;  Fahey  v.   .  .    1001,1097 

Bedford;  Greif  v.     .              ....  907 


xxxiv  TABLE  OF  CASES  REPORTED 

Page 

Becker  v.  Commissioner 822 

Belco  Petroleum  Corp.;  Chevron  U.  S.  A.  Inc.  v. 847 

BeU  v.  Alabama 1038 

BeU  v.  Illinois      852 

BeU  v.  United  States 853 

BeUefonte  Underwriters  Ins.  Co.;  Fine  v. 826 

Belle  Fourche  Pipeline  Co.  v.  United  States 818 

Belletire;  Parks  v. 918 

Bellin,  In  re 891 

Belmont  v.  Dole 1055 

Belz;  Brown  v. 983 

Bender  u  Williamsport  Area  School  Dist 942,1002 

Bennett;  Chula  Vista  City  School  Dist.  v. 1098 

Bennett  v.  Illinois 858 

Bennett  v.  United  States  Trust  Co.  of  N.  Y 1058 

Benson;  Cole  v. 921 

Benson  v.  United  States 858 

Benton;  Pruessner  v. 1033 

Benz  v.  United  States 817 

Berger  &  Montague,  P.  C.;  Zimmer  Paper  Products  Inc.  v.    902 

Bergman  v.  United  States 945 

Berkeley;  Fisher  v. 898 

Berkic  v.  Crichton 826 

Bernard  v.  Bernard 1103 

Bernard  v.  Nickels 1065 

Bernard  v.  Warden .  .  1104 

Berry;  Pursue  Energy  Corp.  v. 828 

Bertoniere  u  United  States 1012 

Best;  Taylor  v. 982 

Bethel  School  Dist.  No.  403  v.  Fraser 814,1046 

Bethlehem  Steel  Corp.;  Davis  v. 1021 

Bethlehem  Steel  Corp.;  McFarland  v. 844 

Betka,  In  re     1003 

Betka  v.  Smith    860,1015 

Betka  v.  West  Linn 836,1015 

Bewley  v.  Oklahoma 829 

Bezold  u  United  States 1063 

Bezotte  v.  Madison  County  Comm'rs 1023 

B  &  G  Crane  Service,  Inc.  v.  Dolphin  Titan  International,  Inc.  .  .  904 

Bieker  v.  Kansas 904 

Billings  v.  Smith 859 

Binladen  BSB  Landscaping  v.  M.V.  "Nedlloyd  Rotterdam"     .      ...  902 

Bint  v.  Creative  Forest  Products 803 

Bippus  v.  Teamsters 1007 


TABLE  OF  CASES  REPORTED  xxxv 

Page 

Bishop  v.  Davis 950,1077 

Bishop  v.  International  Paper  Co 821 

Bisig  v.  United  States      905 

Bixler  v.  Indiana 834 

Black,  In  re 814 

Black;  Arney  v. 1084 

Black;  Beans  v. 979 

Black;  Day  v.  922 

Black;  Greer  v. 837 

Black;  Pittman  v. 982 

Black  v.  United  States 1022 

Black  v.  Wyche      1059 

Blackburn;  Henderson  v.     1023 

Blackburn;  Hobbs  v. 838 

Blackburn;  Lewis  v. 902 

Blackburn;  Michigan  v. 811,989 

Blackmon  v.  Observer  Transportation  Co 864 

Blackwell;  Taylor  v 847 

Blackwood  v.  United  States 1020 

Bladel;  Michigan  v.        810,942 

Blair  v.  Chafin 840 

Blair  v.  H.  Truman  Chafin  Legal  Corp 840 

Blair;  Missouri  v. 1049 

Blairco,  Inc.  v.  Chafin 840 

Blairco,  Inc.  v.  H.  Truman  Chafin  Legal  Corp 840 

Blake;  Kemp  v. 943,998 

Blake  v.  Nassau  County  Dept.  of  Social  Services              862 

Blandon-Gaviria  v.  United  States 908 

Blankfield  v.  Texas  State  Bd.  of  Dental  Examiners 980 

Blau;  Del  Monte  Corp.  v.    .    .  .                .            865 

BLC  Ins.  Co.;  Westin,  Inc.  v.      .      ...                844 

Block;  Bohemia,  Inc.  v. 919 

Block  v.  Castillo         994 

Block;  North  Side  Lumber  Co.  v. .          .  .  931 

Block  v.  Payne  ....  815,942 

Block  v.  United  States  .            .                . .              .    .            1034 

Blocker  v.  Fetherston      .                         .                 .                 831 

Blue  Cross  &  Blue  Shield  of  Mich.  v.  Milliken                .      .    .  805 

Boag  v.  Raines               1085 

Boardman  v.  United  States  Automobile  Assn.                 980 

Board  of  Attorneys  Professional  Responsibility  of  Wis.;  Gibson  v.  976 

Board  of  Ed.  of  Chama  Valley  Independent  School  Dist. ;  Rhodes  v.  802 
Board  of  Governors,  FRS  v.  Dimension  Financial  Corp.  .      .    .        361,897 

Board  of  Governors,  FRS;  U.  S.  Trust  Corp.  u    .            1098 


xxxvi  TABLE  OF  CASES  REPORTED 

Page 

Board  of  Governors  of  State  Colleges  &  Univs.;  Rubin  v. 1104 

Board  of  Higher  Ed.  of  New  York  City;  Akerman  v. 846 

Board  of  Regents;  Colson  v. 835 

Board  of  Regents  of  Univ.  of  Mich.;  Cawley  v. 839,1015 

Board  of  Regents  of  Univ.  of  Wis.  System;  Namenwirth  v. 1061 

Board  of  Review,  Ohio  Bur.  of  Employment  Services;  Accordino  v.  841 

Board  of  Trustees,  State  Insts.  of  Higher  Learning;  Merwine  v.  823 

Board  of  Zoning  Adjust,  of  Atlanta;  Corey  Outdoor  Advertising  v.  802 

Boating  Industry  Assns.  v.  Moore 895 

Bobis  v.  Illinois 827 

Bock  v.  New  York 996 

Bodine  v.  Department  of  Transportation 923,1027 

Boeing  Co.;  Eschler  v. 1082 

Boeing  Co.;  Schoenborn  v. 1082 

Boeing  Vertol;  Koutsoubos  v. 821 

Bogarat  v.  Emerson 1058 

Bogard  u  Kentucky 843 

Boggins  v.  United  States 834 

Bohemia,  Inc.  v.  Block 919 

Bolger;  Burden  v. 1012 

Boiling  v.  Baker 824 

Bolt;  Bad  Foot  u     855,1000 

Bondi  v.  Illinois 836 

Bonham  v.  Texas 865 

Bonjorno;  Kaiser  Aluminum  &  Chemical  Corp.  v. 811 

Bonner  u  Commissioner 923 

Bonner;  Moore  u     827 

Bonneville  Power  Admin. ;  Cal.  Energy  Res.  Cons.  &  Dev.  Comm'n  v.  1005 

Bonwich  v.  Bonwich     848 

Booker  u  Wainwright .  975 

Boone  v.  United  States .  861 

Borntrager  v.  Stevas 1008 

Borough.     See  name  of  borough. 

Borys  v.  United  States 1082 

Boulding,  In  re .      . .      .  1044 

Bourbeau;  Wright  v. 1083 

Bourns,  Inc.;  Owens  v. ...  1038 

Bovee  v.  United  States 854,1015 

Bowden  v.  Idaho  Dept.  of  Health  and  Welfare 805,1000 

Bowden  v.  Kemp .  891 

Bowen  u  Foltz  ...            1035 

Bowen;  Georgia  Dept.  of  Medical  Assistance  v. 1059 

Bowen;  Humana  Inc.  v. 1055 

Bowen  u  Owens 1046 


TABLE  OF  CASES  REPORTED  xxxvii 

Page 

Bowen;  Reeves  v.    1064 

Bowen;  Triplett  v. 1104 

Bowers  v.  Hardwick     943 

Bowers  v.  Wisconsin 837 

Bowker;  Ross  v. 851 

Bowles,  In  re 1079 

Bowman  v.  Cincinnati  Mine  Machinery  Co 855 

Bowring  u  Mills 838 

Boyd;  Heller  u 982 

Boykin  u  Reagan  Administration 921 

Bracy  v.  Arizona 1110 

Bradfield;  Stop-N-Go,  Inc.  v. 805 

Bradley;  Sanford  v. 906 

Bradman;  Bryant  v. 862 

Brady  u  Pettit 845 

Brakefield  v.  United  States 953 

Brancewicz  v.  C.  E.  Lummus  Co 1085 

Brand  v.  New  York 828 

Brantner  u  Wicker 831 

Bray  v.  Bearden 841 

Bray  u  Dodge  County 983 

Breeze  v.  United  States 875,1015 

Bressler  v.  United  States  .            1082 

Brewery  Workers;  Barlow  v. 1009 

Brick  v.  McSurely 1005 

Bridgeport  v.  United  States             ...              905 

Brierton;  Adams  v. 1010 

Brisbon  v.  Illinois 908 

Britt  v.  United  States 829 

Brock;  Automobile  Workers  v. 825,900 

Brock;  DialAmerica  Marketing,  Inc.  v.        .    .            919 

Brock;  Master  Printers  of  America  v. 818 

Brock  v.  Pierce  County .  .  ..  .  944,1046,1099 

Brock  v.  Transportation  Union    .                3 

Brock  v.  United  States                  856 

Brocklesby;  Jeppesen  &  Co.  v.       .      ...            .          1101 

Brodis  v.  Detroit  Public  School  Administrators     .                  .        .  835 
Brofford  v  Morris         .                                .               ...              ...        872,1000 

Bronger  v.  Office  of  Personnel  Management  .            1101 

Brookhaven  National  Laboratory;  Golm  v.      .              .          1059 

Brotherhood.     For  labor  union,  see  name  of  trade. 

Brown  v.  Belz .  .                                       983 

Brown  v.  Bruno  .                                           .                    ...  861 

Brown  v.  Erman      .             .             .                       .......  824 


xxxvin  TABLE  OF  CASES  REPORTED 

Page 

Brown  v.  Ferro  Corp 947 

Brown  v.  Florida 1034,1038 

Brown  u  Francis 865 

Brown;  Jones  v. 1068 

Brown;  Kendricks  v 1069 

Brown;  Khaliq  u 1110 

Brown  v.  Leavitt 836 

Brown  v.  Newsome 982 

Brown  v.  New  York 855 

Brown  u  United  States 823,840,842,905,908,990,1036,1064 

Brown  u  Wainwright 1084 

Brown  v.  Washington 1058 

Brown  v.  Washington  Metropolitan  Area  Transit  Authority 858 

Brown  v.  Woods 1084 

Brown  i>.  Zant 860,990 

Brown-Forman  Distillers  u  N.  Y.  State  Liquor  Auth.     814,977,1079,1099 

Brownstein  v.  Director,  111.  Dept.  of  Corrections 858 

Bruner  v.  Parker 827 

Bruno;  Brown  u 861 

Bruno  v.  New  Orleans  Dept.  of  Police 805 

Bruscantini  v.  United  States 904 

Bryan  County  Bd.  of  Ed.;  Rabon  v.     855 

Bryant  v.  Bradman     862 

Bryant  v.  United  States        953,1036,1054 

Buchanan  v.  Rees ....          1010 

Buckeye  Cellulose  Corp.;  Bailey  v.     863,1078 

Buckley  v.  Commercial  Federal  Savings  &  Loan    1068 

Buena  Vista  Distribution  Co.;  Patterson  v. 1013 

Building  &  Constr.  Trades  Coun.  of  Phila.  v.  Altemose  Constr.  Co.       898 

Bulloch  v.  Pearson 1048,1086 

Bullock;  Cabana  v. 376,897 

Bullock  u  Director,  Dept.  of  Corrections 1023 

Bunch  v.  United  States 1067 

Bunker  v.  California .  837 

Buratt;  Capital  City  Press,  Inc.  v. 817 

Burche  u  Caterpillar  Tractor  Co 971,1027 

Burden  v.  Bolger 1012 

Burden  v.  Kemp 865 

Bureau  of  Prisons;  Hernandez  v.  .  ...  1034 

Burger;  Grace  v. 1026 

Burger;  Holway  v. 949 

Burger  u  Kemp 806 

Burlington  Industries,  Inc.;  Gilbert  v 978 

Burlington  Industries,  Inc.;  Roberts  v.        978 


TABLE  OF  CASES  REPORTED  xxxix 

Page 

Burlington  Northern  Inc.  v.  Herold 888 

Burlington  Northern  R.  Co.  v.  Cherner 1005 

Burnett  v.  United  States 857 

Burnette  v.  United  States 813 

Burnley,  In  re 997 

Burnley  v.  Superintendent  of  Capron  Correctional  Unit 1011 

Burnside  v.  White 1022 

Burr  v.  Florida 879 

Burriss  v.  Northern  Assurance  Co.  of  America     821 

Burrus;  Hijar  v. 816,1016 

Burt;  Connolly  v. 1004 

Burton  v.  Delanie 859 

Burton  v.  Diamond 1035 

Burton  v.  Evan 1035 

Burton  v.  Ford 858 

Burton  v.  Lockhart 1011,1112 

Burton  v.  Reed 949,1077 

Burton  v.  Sargent     1011,1112 

Burton  v.  Smith 997,1077 

Burton  v.  Stouts 856 

Burton  v.  Wilson 997,1077 

Busby  v.  Holt 1068 

Busby  v.  Louisiana 873,1015 

Bush  v.  United  States      1012 

Butler  v.  Federal  Communications  Comm'n 832 

Butler  v.  McCotter     855 

Butler  v.  South  Carolina     1094 

Bykofsky  v.  Hess  ...  .      .          .  995 

Byron  Jackson  Pump  Co.;  Clark  v. 840,1000 

C.;  Department  of  Social  Services  of  Rusk  County  v.    .      .    .          . .       971 

Cabana  v.  Bullock 376,897 

Cain;  McCormick  v.       1010 

Cain;  West  v.          .  1066 

Calder  Race  Course,  Inc.  v.  Division  of  Pari-Mutuel  Wagering    .    .       802 

Caldwell;  Mark  v. 945 

Caldwell;  Williams  v. .  .        ...  945 

Calhoun  v.  Ohio 983 

California;  Aho  v. 995 

California;  Allen  v.  .  .  1068 

California;  Barton  v.  841 

California;  Bunker  v. .  .  837 

California  v.  Callahan  .  .  .    .      1081 

California  v.  Federal  Communications  Comm'n      ...          .      .  .        809,1002 

California;  Geringer  v.  .          1065 


XL  TABLE  OF  CASES  REPORTED 

Page 

California;  Hamilton  v. 1016 

California;  Hampton  v. 825 

California;  Jones  v. 821 

California;  Kenny  v. 860 

California;  Mintz  v. 980 

California;  Morton  v. 1060 

California;  Parra  v. 1023 

California;  Peters  v. 804 

California;  Quick  v. 823 

California;  Ramirez  v. 1043 

California;  Roehler  v. 1021 

California;  Romer  u 1035 

California;  Sade  u 994 

California;  Stevens  v. 1059 

California;  Sturm -y 906,1009 

California  v.  Walnut  Properties,  Inc 903 

California  Coastal  Comm'n;  Remmenga  v. 915,1027 

California  Dept.  of  Transportation  v.  Naegele  Outdoor  Adv.  Co.  1003 

California  Energy  Res.  Cons.  &  Dev.  Comm'n  v.  Bonneville  Pow.  Ad.  1005 
California  ex  rel.  Cooper  v.  Mitchell  Bros.  Santa  Ana  Theater  .  .    948,1077 

California  Federal  Savings  &  Loan  Assn.  v.  Guerra 1049 

California  Institution  for  Men;  Jones  v.       950 

California  Jockey  Club;  Program  Engineering,  Inc.  v. 1007 

California  State  Bar;  Lupert  v. 916 

California  State  Bd.  of  Equalization  u  Chemehuevi  Tribe 9,1077 

California  State  Lands  Comm'n  v.  United  States 1005 

California  State  Personnel  Bd.;  Gilbert  v. 841 

Call  u  Albany 1057 

CaUahan;  Alabama  u 1019 

CaUahan;  California  v. 1081 

Calpin  v.  United  States         1084 

Calver  v.  Owners  of  Ridgecrest  Mobile  Home  Park     1105 

Camacho,  In  re 991,1099 

Camden  County  Bd.  of  Ed.;  Simmons  v. 981 

Camden  Fire  Ins.  Assn.  v.  Justice       936 

Cameron  v.  Oregon 1069 

Campbell  u  Alabama .  .  1021 

Campbell  v.  Department  of  Transportation  ....          ....            ....  1084 

Campbell  u  Kentucky .  .                .  856 

Campbell  v.  Maine 1032 

Campbell  v.  Ohio  Dept.  of  Justice       840,990 

Campbell;  Reed  v. 1018 

Campman  v.  United  States    1064 

Cannin  v.  United  States 1067 


TABLE  OF  CASES  REPORTED  XLI 

Page 

Cannon;  Davidson  v. 344,898 

Cannon;  Hayes  v. 903,1027 

Cannon  v.  Texas 1110 

Cantero-Rodriguez  v.  United  States 856 

Cantone  v.  ScuUy 835 

Canyoneers,  Inc.  v.  Hodel 846 

Capalbo;  Pompano  Beach  v. 824,1000 

Cape  v.  Francis     911,1027 

Capital  Cigar  &  Tobacco  Co. ;  Chou  v. 833 

Capital  City  Press,  Inc.  v.  Buratt       817 

Caprito  v.  Caprito 1020 

Caprito  v.  Mayhew 1020 

Carbalan  v.  Vaughn 1007 

Cardenas-Montilla  v.  United  States 952 

Cardinal  Resources,  Inc.  v.  Eddie  S.S.  Co 823 

Carey  u  Afford 856 

Carey  v.  Minnesota 1010 

Cargffl,  Inc.  v.  Monfort  of  Colo.,  Inc 1031,1049 

Carigon  v.  Michigan     854 

Carl  E.  Widell  &  Sons  v.  Ellison       1083 

Carlin;  Cohran  v 1033,1111 

Carmen;  Cuddy  v.     1034 

Carr  v.  Holland 1083 

Carr  v.  Hutto     1019 

Carradine;  Moeller  v.    .  .  804 

Carrier;  Sielaff  v.  .      .  898 

Carrigan  v.  Lashley 834,990 

Carrillo  v.  United  States     847 

Carrion  v.  New  York  City  Health  and  Hospitals  Corp 842,1015 

Carroll  v.  Alberts .  .    .  .  ...         1013 

Carroll  v.  Illinois 1066 

Carroll  Co.  v.  Morrison  Assurance  Co.        ...  ...          .  .        1060 

Carrollo  v.  United  States  .    .          . .  1062 

Carson  v.  Spanish  Lake  Assn.        ...  .  ...         829 

Carson  v.  Turner ....  944 

Carter;  Mukau  895,1027 

Carter  v.  Spaniol  .  ...  .  .          ...  .       998 

Carter  v.  United  States  .  ...  .  .  836,861,862 

Cartwright  v.  Oklahoma .  .  .  1073 

Carver;  Raspaldo  v.          .    .  .  853 

Cash  Currency  Exchange,  Inc.;  Fryzel  v.     .        .  .          .          904 

Castaldi  v.  United  States  .          .  .  .         826 

Castaneda  v.  Christensen  841 

Castillo;  Block  u  .  ...  ....  .    .       994 


xui  TABLE  OF  CASES  REPORTED 

Page 

Castorina  v.  Lykes  Brothers  S.S.  Co 846 

Caswell  v.  Pennsylvania 1024 

Cataldo  u  Meskill 916 

Caterpmar  Tractor  Co.;  Burchev. 971,1027 

Catholic  Bishop  of  Chicago;  F.  E.  L.  Publications,  Ltd.  v.   824 

Catrett;  Celotex  Corp.  v. 944,1047 

Cauble  v.  United  States 994 

Cauthen-Bey  v.  United  States 862 

Cavros  v.  Connecticut 904 

Cawley  u  Board  of  Regents  of  Univ.  of  Mich 839,1015 

Caylor  v.  Red  Bluff 1037 

CBS,  Inc.;  Redco  Corp.  v. 843 

C  &  C  Metal  Products  Corp.  v.  Defiance  Button  Machine  Co.     .      .  844 

Ceasar  v.  Merrill  Lynch  &  Co 844 

Cedar  u  United  States 859 

Celotex  Corp.  v.  Catrett 944,1047 

C.  E.  Lummus  Co.;  Brancewicz  v. 1085 

Centex  Corp. ;  Futura  Development  Corp.  v.     850 

Central  &  Southern  Motor  Freight  Tariff  Assn.  v.  United  States  .  .  1019 

Cerbone  v.  Conway 1100 

Certain  Unnamed  Prospective  Defendants  v.  Newspapers,  Inc. .    .  1061 

C.  E.  Services,  Inc.;  Control  Data  Corp.  v. 1037 

C  F  &  I  Steel  Corp.;  Turner  v. .          .  1058 

Cha;  Wax-nick  v.          920 

Chafin;  Blair  v. 840 

Chafin;  Blairco,  Inc.  v.       840 

Chafin  Legal  Corp.;  Blair  v. ....  840 

Chafin  Legal  Corp.;  Blair,  Inc.  v. 840 

Chagra  u  United  States 922 

Chambers  v.  Armstrong  Blum  Mfg.  Co ...  833 

Chambers  v.  Kentucky 1021 

Chambers;  Texas  v. 864 

Chandler  u  Lord 853,1078 

Chaney  v.  Maryland 1067 

Chapman  v.  Luna .  947 

Chapman  v.  Smith  Barney,  Harris  Upham  &  Co.  ...          ...          .  850 

Chapman  v.  State  Bar  of  Cal 848 

Charles;  Diamond  u 809 

Chartier,  In  re 896 

Chatman  v.  Alabama 1022 

Chatman  v.  Marquez 841 

C.  H.  B.  Foods,  Inc.  u  English 807 

Cheadle  v.  Appleatchee  Riders  Assn 849 

Cheeseman  v.  United  States 991 


TABLE  OF  CASES  REPORTED  XLIII 

Page 

Chemehuevi  Tribe;  California  State  Bd.  of  Equalization  v. 9,1077 

Chemtrol  Adhesives,  Inc.;  Morgan  Adhesives  Co.  v.     843 

Cheng;  GAF  Corp.  v.     .      .    .  .  809 

Cherner;  Burlington  Northern  R.  Co.  v.     1005 

Chesapeake  City  Police  Dept.;  Humphries  v. 831 

Chesapeake  &  Potomac  Tel.  Co.  of  Md.;  Public  Service  Comm'n  v. .       942 

Chevron  U.  S.  A.  Inc.  v.  Belco  Petroleum  Corp 847 

Chicago;  Thoele  v. 1056 

Chicago;  Tomczak  v. 946 

Chicago  Tribune  Co.  v.  Johnson    915,1027 

Chief  Justice  of  United  States;  Grace  v. 1026 

Chief  Justice  of  United  States;  Holway  v.     949 

Childress  v.  United  States 996 

Chindawongse  v.  United  States  ....          1085 

Chitty  v.  United  States 945 

Chosid,  In  re 1044 

Chou  v.  Capital  Cigar  &  Tobacco  Co 833 

Chrans;  Lucien  v. 1067 

Chris  Craft  Corp.;  Templeman  v. 1021 

Christensen;  Castaneda  v. 841 

Christensen  v.  Equitable  Life  Assurance  Society 1102 

Christian  v.  Veterans  Administration 826 

Christmann  &  Welborn  v.  Department  of  Energy 901 

Chroma-Graphics  Corp.;  D.  L.  Auld  Co.  v. 825 

Chu;  American  Ins.  Assn.  v .  803 

Chu;  Trump  v.  .  915 

Chula  Vista  City  School  Dist.  v.  Bennett 1098 

Ciba-Geigy  Corp.;  Andersen  v.  .  ...  .  .  995 

Cicirello  v.  New  York  Telephone  Co 823 

Cincinnati  Mine  Machinery  Co. ;  Bowman  v. 855 

City.     See  name  of  city. 

Clark  v.  Byron  Jackson  Pump  Co.  840,1000 

Clark;  Rose  v.  .      816,1047 

Clark;  Sestric  v.  .  1086 

Clark  v.  South  Carolina  998 

Clark  v.  United  States  .      .       831 

Class;  New  York  v. .  .  809,1031 

Clear  Pine  Mouldings,  Inc.  v.  National  Labor  Relations  Bd 1105 

Cleavinger  v.  Saxner  .  193 

Clem;  Erlbaum  v.  .  .  849 

Clemente  v.  United  States      .        .  .1101 

Clements  v  West  Virginia  .  ...        .  857 

Clemmons  v.  Alabama       .          837 

Cleveland;  Firefighters  v.      .  .  816,1047 


XLIV  TABLE  OF  CASES  REPORTED 

Page 

Cleveland  Heights  u  Smith 1056 

Clopper  v.  Merrill  Lynch  Relocation  Management,  Inc 823 

Cloud  Books,  Inc.;  Arcara  u 978 

Coats  &  Clark,  Inc.;  Gay  v. 903 

Cochran  v.  United  States 1062 

Cochrane  u  Simor 847 

Coder  v.  Fulcomer 832 

Coder  v.  Grine 907 

Cody,  In  re 977 

Cody  v.  De  lorio 1065 

Cody  v.  Solem 833 

Cohran  v.  Carlin 1033,1111 

Cola  v.  United  States 1023 

Colberg,  Inc.;  Earl's  Pump  &  Supply  Co.  v. 820 

Cole  v.  Benson 921 

Cole  v.  Fulcomer 921 

Cole  v.  McEvers 995 

Coleman  v.  Delaware 950,1077 

Coles,  In  re 1048 

Collard  v.  Flower  Hill 827 

Collins  v.  Anndep  S.S.  Corp 820 

Collins  v.  Illinois 935,1027 

Collins;  Lockhart  v. 1013 

Collins  v.  United  States 922,1024,1027 

Collins  Co.  v.  Tectonics,  Inc 848 

Collis  v.  United  States 851 

Colonial  Pipeline  Co.  v.  Alabama 936 

Colorado  u  Connelly      1050 

Colorado;  Texas  v. 1017 

Colorado;  Wandel  u 1032 

Colorado;  Yellen  v. 1036 

Colorado  State  Bd.  of  Law  Examiners;  Lucero  v. .  856 

Colson  v.  Board  of  Regents 835 

Columbia  Broadcasting  System,  Inc. ;  Hepler  v.    .          946 

Commercial  Federal  Savings  &  Loan;  Buckley  v. 1068 

Commercial  Property  Services,  Inc.;  Public  Employees  v.      850 

Commissioner;  Beeker  u 822 

Commissioner;  Bonner  v. 923 

Commissioner;  Cooper  v. 1069 

Commissioner;  Dale  u 905 

Commissioner;  Derksen  v. 1036 

Commissioner;  Dragatsis  u 1034 

Commissioner;  Foster  v. 1055 

Commissioner;  Gladney  v. 923 


TABLE  OF  CASES  REPORTED  XLV 

Page 

Commissioner;  Hembree-Bey  v. 852 

Commissioner;  Hestnes  v. 904 

Commissioner;  Karmun  v. 819 

Commissioner;  Kenton  Meadows  Co.  v. 1082 

Commissioner;  Knoblauch  v. 830 

Commissioner;  Masters  v. 907 

Commissioner;  Moss  v. 979 

Commissioner;  Piggy  Bank  Stations,  Inc.  v.     843 

Commissioner;  Rockefeller's  Estate  v. 1037 

Commissioner;  Rutter  v.      848 

Commissioner;  Stelly  v. 851 

Commissioner;  Tracy  v. 856 

Commissioner;  Whitt  v.     1005 

Commissioner  of  Internal  Revenue.     See  Commissioner. 

Commissioner  of  Labor  &  Industry  of  Mont.;  Miller-Wohl  Co.  v. . . .  1045 

Commissioner  of  N.  Y.  State  Tax  Comm'n;  Trump  v. 915 

Commissioner  of  Patents  and  Trademarks;  Etter  v 828 

Commissioner  of  Tax.  &  Finance  of  N.  Y.;  American  Ins.  Assn.  v.  803 

Commodity  Futures  Trading  Comm'n  v.  Schor 1018 

Commonwealth.     See  name  of  Commonwealth. 

Communications  Workers;  AT&T  Technologies,  Inc.  v. 814 

Communications  Workers;  Scaglione  v. 921 

Community  Health  Services  of  Crawford  Cty.  v.  Travelers  Ins.  Cos.  1056 

Community  Nutrition  Institute;  Young  v. 1018 

Como  v.  United  States 909 

Compania  Dominicana  de  Aviacion;  Arango  v 995 

Comptroller  of  Currency;  Securities  Industry  Assn.  v.                .    .  1054 

Concordia  Parish  Sheriff's  Dept.;  Baltezore  v. 1065 

Condado  Holiday  Inn  v.  Tourism  Co.  of  Puerto  Rico      917,1031,1046,1079 

Conklin  v.  Georgia      .    .               ...  1038 

Connecticut;  Cavros  v.           .  .          .          ....  904 

Connecticut;  Dolphin  v.    .                  833 

Connecticut;  Dupree  v.  ...  ....          .  .951 

Connecticut;  Gasparro  v.                    .                   .  .               .  828 

Connecticut;  Reddick  v.           ....            .  1067 

Connecticut  v.  Sutton                     ....              1073 

Connelly;  Colorado  v .          .  1050 

Connolly  v  Burt                .        .        .                 1004 

Connolly  v.  Pension  Benefit  Guaranty  Corp .    .  810 

Connor  v.  Department  of  Labor .    998,1077 

Consolidated  Rail  Corp.  v  Hallamore  Motor  Transportation,  Inc.  918 
Consumers  Union  of  United  States,  Inc.;  Cranberg  v.           .            850,1097 

Contact  Lens  Mfrs.  Assn.  v.  Food  &  Drug  Administration       .  1062 

ContiCommodity  Services,  Inc.  v.  Schor  .            1018 


XLVI  TABLE  OF  CASES  REPORTED 

Page 

ContiCommodity  Services,  Inc. ;  Schor  u 1083 

Continental  Group,  Inc.;  Mason  v. 1087 

Continental  Ins.  Cos. ;  Rodman  v.   804 

Contreras  v.  United  States 832 

Control  Data  Corp.  v.  C.  E.  Services,  Inc 1037 

Conway;  Cerbone  v.   1100 

Cook;  De  Nardo  v. 1101 

Cook;  Pan  American  World  Airways,  Inc.  v.   1109 

Cook  County  Police  and  Corrections  Merit  Bd.;  Aguilera  v. 907 

Cook  County  Police  and  Corrections  Merit  Bd.;  Maggette  v.  .  . .    945,1077 

Cooke;  Robinson  v.  840,1015 

Cooke;  Sims  v. 849 

Cooke;  Tate  v.    842 

Cooks  v.  Oklahoma 935 

Cooley;  Administrators  of  Tulane  Educational  Fund  v. 820 

Coombs  v.  McGarry 835,1015 

Cooper  v.  Commissioner 1069 

Cooper;  Dodson  v. 941,1084 

Cooper  v.  Mitchell  Brothers'  Santa  Ana  Theater 948,1077 

Coplin  v.  United  States 1050 

Copy-Data  Systems,  Inc.  v.  Toshiba  America,  Inc 825 

Corbett  v.  Mintzes 1010 

Corbett  v.  United  States 1063 

Corcoran  v.  Wyrick 923 

Cordis  Corp.  v.  Medtronic,  Inc 851 

Corey  Outdoor  Adv.,  Inc.  v.  Bd.  of  Zoning  Adjust,  of  Atlanta  ....         802 

Corley  v.  Herman 831 

Corley  v.  Meese 837 

Cornett  v.  United  States       982 

Coronel-Quintana  v.  United  States 819 

Corporation  Comm'n  of  Kan.;  Northwest  Central  Pipeline  Corp.  v.       812 

Corpus  Christi  People's  Baptist  Church,  Inc.  v.  Texas 801 

Corrections  Commissioner.     See  name  of  commissioner. 

Correia;  John  Holman  &  Sons,  Ltd.  v. 1082 

Cortez  v.  Pennsylvania 950 

Cortez  v.  Unauthorized  Practice  Comm.,  State  Bar  of  Tex 980 

Cortez  Agency  v.  Unauthorized  Practice  Comm. ,  State  Bar  of  Tex.       980 

Cossett  v.  Ledford 1065 

Cotton  v.  Federal  Land  Bank  of  Columbia.    . .    .          1104 

Coughlin  v.  Patterson 1100 

Coughlin;  Payne  v. 861,1054 

County.     See  name  of  county. 

County  Sanitation  Dist.  No.  2  v.  Los  Angeles  County  Employees       995 

Court  House  Plaza  Co.  v.  Palo  Alto 945,1077 


TABLE  OF  CASES  REPORTED  XLvn 

Page 

Court  of  Appeals  of  Md. ;  Marshall  v. 802 

Cousineau;  Firestone  Tire  &  Rubber  Co.  -V.   971 

Covington  v.  Leeke 856 

Cowell  v.  Alabama 1035 

Cox  Communications,  Inc. ;  Lowe  v.   982 

Cox  Enterprises,  Inc.;  Shockley  v. 1102 

Craig  v.  Tuscaloosa  News,  Inc 841 

Cranberg  v.  Consumers  Union  of  United  States,  Inc 850,1097 

Crane;  Dallas  County  v. 1020 

Crane  u  Kentucky 1019 

Crane;  Wade  v. 1020 

Crawford  v.  Edmonson 905 

Crawford  v.  United  States    1084 

Crawford  Fitting  Co.  v.  J.  T.  Gibbons,  Inc 890 

Creative  Forest  Products;  Bint  v. 803 

Creed  &  Son,  Inc.  v.  Trident  Technical  College 1060 

Crespo-Diaz  v.  United  States       952 

Crest  Street  Community  Coun. ;  North  Carolina  Dept.  of  Transp.  v.  1049 

Crichton;  Berkic  v. 826 

Crooker  v.  United  States 1024 

Crooks  v.  United  States    996 

Cudahy;  Schramm  v. 852 

Cuddy  v.  Carmen 1034 

Cuervo  v.  United  States 1009 

Cumberland  Area  Teamsters  Pension  Fund  v.  Hoover    845 

Cummings  v.  United  States 817,1014 

Cunningham  v.  Housing  Authority  of  Opelousas 1007 

Cunningham  v.  Las  Vegas 831 

Cunningham;  Lawrence  v.       1083 

Cunningham  v.  Opelousas  Housing  Authority 1007 

Cunningham  v.  Shafer 831,997 

Cuomo;  Maresca  v. 802 

Currey  v.  Waffenschmidt 1056 

Carrie  v.  Barry 1060 

Curtis  v.  Doubleday  &  Co 912 

Gushing-Gale  u  Smith 1012 

Cuyahoga  Valley  R.  Co.  v.  Transportation  Union 3 

Dabney;  Montgomery  Ward  &  Co.  -w.     904 

Da-Chuan  Zheng  v.  United  States      ....  1060 

Dacon;  Meiri  -v 829 

Daetwyler  Corp.  v.  Meyer 980 

Daurymen,  Inc.  v.  United  States .  .          .  822 

Dale  v.  Commissioner    905 


XLVIII  TABLE  OF  CASES  REPORTED 

Page 

Dallas  County  v.  Crane 1020 

Dallas  Offset,  Inc.;  Lopez  v. 830 

Daly  v.  United  States 1022 

Damon  v.  South  Carolina 865,1015 

Dampier  u  Lane 1085 

Daniel  u  United  States  Parcel  Service 1067 

Daniel  P.  Foster,  P.  C.  u  United  States    1061 

Daniels,  In  re 977 

Daniels  v.  Papasan 996 

Daniels  v.  Williams 327 

Dannon  Co. ;  McGreevy  v. 828 

Dano  v.  Szombathy 950,1077 

Danzig;  Grynberg  v. 819 

Darden  v.  Wainwright 899 

Darling  v.  United  States 1024 

Darr  v.  United  States 834 

Darud  u  United  States 983 

Darwin  V.  Rison 1062 

Darwin  v.  United  States 834,836,838,1104,1110 

Davenport  v.  United  States 840 

Daves  u  State  Bar  of  Tex ...     1043 

David  u  American  Telephone  &  Telegraph  Co 832 

Davidson  v.  Cannon 344,898 

Davis,  In  re 896,1032 

Davis  v.  Bandemer 991 

Davis  v.  Bethlehem  Steel  Corp 1021 

Davis;  Bishop  v. 950,1077 

Davis;  Delbridge  v. .       839 

Davis  v.  First  State  Bank     1098 

Davis  u  Fuleomer 1010 

Davis  v.  Gupton 1023 

Davis  u  Indiana 1014 

Davis;  Longshoremen  v.      899,1098 

Davis;  Mitchell  v. 949 

Davis;  Tillis  u 837 

Davis  u  United  States 908,998,1036 

Day,  In  re 813,814,943 

Day  v.  Amoco  Chemicals  Corp 1065 

Day  v.  Black 922 

Day  v.  South  Park  Independent  School  Dist 1101 

Day  v.  Wettman .    .     1035 

Dayton  Christian  Schools,  Inc.;  Ohio  Civil  Rights  Comm'n  v.    .    .  978 

Deacon  u  Illinois 921 

Dean  u  United  States 916,1005 


TABLE  OF  CASES  REPORTED  XLIX 


Deane  v.  Thomson  McKinnon  Securities,  Inc  .....................       903 

Dean  Forwarding  Co.;  Prenzler  u  ...........................       990 

Dean  Steel  Erection  Co.  ;  Whalen  v.  .......................         802 

DeFazio  u  Springfield  ..............................       1055 

Defiance  Button  Machine  Co.;  C  &  C  Metal  Products  Corp.  v.      ...       844 

DeGarmo  v.  Texas  ....................................       973 

Deglow,  In  re  ......................................       1O79 

De  lorio;  Cody  v.     ................................     1O65 

DeKalb  County;  Pine  Hill  Civic  Club,  Inc.  v.  ................         892 

DeLaine;  Span  v.     ..................................    835,990 

De  la  Lastra  Petrire  v.  Spantax,  S.A  .......................       846 

Delanie;  Burton  v.  .................................       859 

Delaware;  Bailey  v.  ................................         873 

Delaware;  Coleman  v.  .................................    950,1077 

Delaware;  Edgerton  u  ............................       804 

Delaware  v.  Fensterer  .............................          15 

Delaware;  Flarner  v.  ..............................         865 

Delaware;  Robinson  v.   ............................       921 

Delaware  v.  Van  Arsdall  ............................    897,977 

Delaware;  Williams  v.  ....................          .........       824 

Delaware  Valley  Git.  Coun.  for  Clean  Air;  Pennsylvania  v.      815,819,1047 
Delbridge  v.  Davis  ................................       839 

De  Le  Puente  v.  United  States  ......................     10O5 

Delespine  v.  McCotter  ................................       9O6 

Delia  Porta  v.  Department  of  Transportation    .............       981 

Dellinger  u  United  States  ........  .................       10O5 

Del  Monte  Corp.  v.  Blau  ..........................       865 

Delozier;  Gillies  v.   .................  ..........         11OO 

Delta  Air  Lines,  Inc.  v.  Florida  Dept.  of  Revenue  ..........         892 

Del  Vecchio  v.  Illinois      ............................    883,1015 

Dernjanjuk  v.  United  States       .....................     1034 

De  Nardo  v.  Cook  ........................     11O1 

Dennie  v  University  of  Pittsburgh  School  of  Medicine  .....  849 

Dennis  v.  United  States  .....................         832 

Denson^  Department  of  Health  and  Human  Services.          .      .    946,1077 
Denton;  Scott  v.     ..............  .        .      .       950 

Department  of  Agriculture;  Park  County  Resource  Council,  Inc.  v.        8O7 
Department  of  Army;  Evans  v.        ...  .  .  .          ....       979 

Department  of  Energy;  Christmann  &  Welborn  u   .....  9O1 

Department  of  Energy;  MGPC,  Inc.  v.      .....  .....       823 

Department  of  Energy;  Texas  v     ......  ....     10O8 

Department  of  Health  and  Human  Services;  Denson  v.     .....    946,1077 

Department  of  Health  and  Human  Services;  Marin  v.       .      .          .  .     1061 

Department  of  Health  and  Human  Services;  Miller  v.  .....  852 


L  TABLE  OF  CASES  REPORTED 

Page 

Department  of  Health  and  Human  Services;  Okello  v. 1036 

Department  of  Interior;  Lunday-Thagard  Co.  v. 1055 

Department  of  Interior;  Rhodes  v.   1103 

Department  of  Justice;  Landes  u 821,1014 

Department  of  Labor;  Connor  v.     998,1077 

Department  of  Labor;  Newby  v.   898 

Department  of  Labor;  Schwender  v. 1054 

Department  of  Labor;  Theatrical  Stage  Employees  v.  901 

Department  of  Navy;  Richards  u 833 

Department  of  Revenue  of  Ore. ;  Worre  v. 1058 

Department  of  Social  Services  of  Rusk  County  v.  J.  C 971 

Department  of  State;  Jordan  v. 813,996 

Department  of  Transportation;  Bodine  v. 923,1027 

Department  of  Transportation;  Campbell  v.       1084 

Department  of  Transportation;  Delia  Porta  v. 981 

Department  of  Transportation;  Gray  v. 1069 

Department  of  Transportation  v.  Paralyzed  Veterans  of  America    918,992 

Department  of  Transportation;  Poquiz  v 952 

Department  of  Treasury;  Dutka  v. 905 

Department  of  Treasury  v.  Galioto 943 

Department  of  Treasury;  Srubar  v. 855,1000 

Derksen  v.  Commissioner 1036 

DeRobertis;  Smith  v.    838 

DeRobertis;  Veal  v. 1082 

DeSantis  v.  United  States    1008 

Desert  Outdoor  Advertising,  Inc.  v.  Naegele  Outdoor  Adv.  Co.        .      1003 

Des  Moines;  Devan  v. 1068 

Des  Moines  v.  Moore 1060 

Detroit  Manpower  Dept.;  Henry  v. 1036 

Detroit  Public  School  Administrators;  Brodis  v. 835 

Devan  v.  Des  Moines 1068 

Devex  Corp.  v.  General  Motors  Corp 890 

Devine;  Sparrow  u 949,1077 

Dial  v.  United  States 838 

DialAmerica  Marketing,  Inc.  u  Brock     919 

Diamond;  Burton  v.    1035 

Diamond  v.  Charles 809 

Diaz  v.  United  States 1043 

Dick  v.  Georgia 865 

Dieball;  Mueller  v.    864 

Dietz;  Simons  u 838 

Di  Gilio  v.  United  States 822 

Dillon;  Miller  v. 857 

Dillon  v.  Potomac  Hospital  Corp 971 


TABLE  OF  CASES  REPORTED  o 

Page 

DiMaggio  v.  United  States 983 

Dimension  Financial  Corp.;  Board  of  Governors,  FRS  v. 361,897 

Di  Napoli  w  Northeast  Regional  Parole  Comm'n 1020 

Dion;  United  States  v.    900,978 

Director,  Dept.  of  Corrections;  Bullock  v. 1023 

Director,  Division  of  Taxation;  Silent  Hoist  &  Crane  Co,  v. 995 

Director,  111.  Dept.  of  Corrections;  Brownstein  v. 858 

Director,  Office  of  Workers'  Compensation;  Hinton  v.    847 

Director,  Office  of  Workers'  Compensation;  Idlebird  -BL 859,1000 

Director  of  penal  or  correctional  institution.      See  name  or  title 
of  director. 

Director,  State  Dept.  of  Social  Services;  Midwife  v. 1012 

Directory  Service  Co.  of  Colo.,  Inc.  v.  Rockford  Map  Publishers. .  .  1061 

Disbrow  v.  United  States 1023 

Dise  v.  United  States 982 

DiSilvestro  v.  United  States 862,990 

District  Court.     See  U.  S.  District  Court. 

District  Director  of  Internal  Revenue  Service;  Moyer  v.     1103 

District  Judge.     See  U.  S.  District  Judge. 

District  of  Columbia;  Rustin  v. 946 

District  of  Columbia;  Sobin  v. 860 

District  of  Columbia;  Tinker-Bey  v. 1065 

District  of  Columbia  Teachers  Fed.  Credit  Union;  Shaffer-Corona  v.  1065 

Division  of  Medical  Quality;  Hurvitz  v. 1081 

Division  of  Pari-Mutuel  Wagering;  Calder  Race  Course,  Inc.  v.   .  .  .  802 

Dixon;  Garcia  v.     1043 

Dixon;  Travalino  v.      1043 

Dixon  u  United  States    829 

D.  L.  Auld  Co.  v.  Chroma-Graphics  Corp 825 

Dobbs,  In  re 917 

Dobey  v.  United  States 818 

Dodge  County;  Bray  V. 983 

Dodson  v.  Cooper 941,1084 

Doe  v.  N"ew  Mexico     1063 

Dole;  Belmont  v 1055 

Dole;  Hoover  v.     902 

Dole  v.  Railway  Labor  Executives'  Assn 1099 

Dolphin  -&  Connecticut     833 

Dolphin  Titan  International,  Inc.;  B  &  G  Crane  Service,  Inc.  v.      .  .  904 

Doran  u  Travelers  Indemnity  Co 1007 

Dotson  v.  United  States 862 

Doubleday&  Co.;  Curtis  v. 912 

Douglas;  Groshon  -z;. 1035 

Douglas  -v.  Holiday  Inn  of  Wilkesboro . .  847 


LII  TABLE  OF  CASES  REPORTED 

Page 

Douglas  v.  Travelers  Inns  of  North  Wilkesboro,  Inc 847 

Dow  v.  United  Van  Lines 825,1014 

Dow  Chemical  Co.;  Sibaja  v. 948 

Dow  Chemical  Co.  v.  United  States 810 

Dowling;  Johnston  v. 904 

Dowty  v.  Pioneer  Rural  Electric  Cooperative,  Inc 1021 

Dracos  v.  Hellenic  Lines  Ltd 945 

Dragatsis  v.  Commissioner 1034 

Drake;  Kemp  v. 993 

Drape  u  United  States 821 

Drivers  &  Helpers  u  Mid-Continent  Bottlers,  Inc 947 

Drury;  Shorter  v. 827 

Ducher  v.  United  States 840 

Duckworth;  Holleman  v. 1069 

Duckworth;  Kalec  v.     860 

Duckworth;  Kimble  v. 1023 

Duckworth;  Phelps  v. 1011 

Duckworth;  Zellers  v. 952 

Duff  v.  Virginia 905 

Duff-Smith  v.  Texas 865 

DuFresne  v.  Baer 817 

Dunbar  v.  South  Carolina 1063 

Dunlap  v.  Massey 1063 

Dunlop  Tire  &  Rubber  Co.;  Razzano  v. 948 

Dunn  v.  Mearls 821 

Du  Pont  de  Nemours  &  Co.;  Barker  v. 976 

Dupree  v.  Connecticut 951 

Duquesne  Light  Co.  v.  Mine  Workers 863 

Durwood  Medical  Clinic,  Inc.;  Hume  v. 848 

Dutka  v.  Department  of  Treasury 905 

Duty  Free  Shoppers,  Ltd.;  Sakamoto  v. 993 

Eagle  v.  United  States    853 

Eagle  Books,  Inc.  v.  Jones   .      . .          920 

Earl  v.  Israel . 951 

Earl's  Pump  &  Supply  Co.  u  Colberg,  Inc 820 

Earnest;  New  Mexico  v. 918 

East  v.  Texas 1000 

Eastern  Airlines  Inc.  v.  Florida  Dept.  of  Revenue 892 

Eastern  Air  Lines,  Inc.  v.  Mahfoud 213 

Eastern  Air  Lines,  Inc.  v.  Winbourne 1036 

East  River  S.S.  Corp.  v.  Transamerica  Delaval  Inc.   ...          .    814,1046 

Eckels  v.  Greater  Houston  Chapter  of  ACLU 980 

Eddie  S.S.  Co.;  Cardinal  Resources,  Inc.  v.       . .          823 

Edge  u  United  States 862 


TABLE  OF  CASES  REPORTED  nil 

Page 

Edgerton  t).  Delaware 804 

Edmonds  v.  Virginia 975 

Edmonson;  Crawford  v. 905 

Edwards  v.  Hannon 823 

Edwards  v.  Harris 1004 

Edwards;  Kane  v.   835 

Edwards  v.  Wilkes-Barre  Publishing  Co.  Pension  Trust 843 

Eichenlaub  v.  Yurky 1049 

E.  I.  du  Pont  de  Nemours  &  Co.;  Barker  v. 976 

Eisenberg;  Pelino,  Wasserstrom,  Chucas  &  Monte verde,  P.  C.  v.  . .  946 

Eisenberg;  Wasserstrom  v.       946 

Eisenberg;  Weinstein  v. 946 

Eissa  v.  United  States 1013 

El  Cid,  Ltd.  v.  New  Jersey  Zinc  Co 1021 

Electrical  Workers;  Gormong  v. 834,990 

Elevator  Constructors  v.  National  Elevator  Industry,  Inc 819 

ElFadl;  Maryland  u 811 

Ellington  u  United  States 1034 

Elliott;  El  Shahawy  v. 980,1077 

Elliott  u  Ohio 1058 

Elliott;  University  of  Tenn.  v. 1004 

Ellis;  McKinney  u 1022 

Ellison;  Carl  E.  Widell  &  Sons  -V.      1083 

Elmore  v.  United  States 996 

El  Paso  Bd.  of  Realtors;  Action  Real  Estate  v. 1102 

El  Paso  Bd.  of  Realtors;  Park  v.     1102 

Elrod;  Miller  v 951 

El  Shahawy  v.  Elliott 980,1077 

El  Shahawy  v.  Sarasota  County  Public  Hospital  Bd 829,1014 

Emerson;  Bogarat  v. 1058 

Engelhart  v.  United  States .  1101 

England  v.  Ryan 952 

Engle;  Robinson  v.      842 

English;  C.  H.  B.  Foods,  Inc.  v. 807 

Enriquez  v.  Florida 906 

Environmental  Protection  Agency;  Modine  Mfg.  Co.  v. 1005 

Environmental  Protection  Agency;  Quivira  Mining  Co.  v.  1055 

EEOC;  Atlanta  Gas  Light  Co.  u 968 

EEOC  v.  Federal  Labor  Relations  Authority 811,1031 

EEOC;  First  Citizens  Bank  of  Billings  v 902 

EEOC  v.  Missouri  State  Highway  Patrol 828 

EEOC;  Prudential  Federal  Savings  &  Loan  Assn.  v. 946 

EEOC;  Sheet  Metal  Workers  v. 815,1045 

Equitable  Life  Assurance  Society;  Chnstensen  v. 1102 


Liv  TABLE  OF  CASES  REPORTED 

Page 

Ergazos,  In  re 807 

Erlbaum  v.  Clem 849 

Erman;  Brown  u 824 

Erman;  Sheppard  v. 835 

Ernest  u  U.  S.  Attorney  for  Southern  Dist.  of  Ala 1016 

Eschler  v.  Boeing  Co 1082 

Esdaille  u  United  States 923 

Estate.     See  name  of  estate. 

Estrada  u  United  States 830 

Etheridge  v.  Mitchell 1019,1111 

Ethyl  Corp.  v.  United  States 1070 

Eti-Quette  Assaf  Ltd.;  Hoffinan  v. 1001 

Etter  v.  Commissioner  of  Patents  and  Trademarks 828 

Eubanks  v.  O'Brien 904 

Euclid  u  Mabel 826 

Evan;  Burton  u 1035 

Evans,  In  re 1002 

Evans  u  Department  of  Army 979 

Evans  u  Franklin  State  Bank 949 

Evans  v.  Fulcomer 1066 

Evatt  v.  United  States 1012 

Ewert  v.  Exxon  Co 819 

Ewing;  Regents  of  Univ.  of  Mich.  v.    214,810,1017 

EWP  Corp.  v.  Reliance  Universal,  Inc 843 

Exotic  Coins,  Inc.  v.  Beacom     892 

Exxon  Co.,  USA;  Ewert  u .  819 

Exxon  Corp.  v.  United  States     1105 

Fahey  v.  Beckley 1001,1097 

Fairley  u  Mississippi 855 

Fail-man;  Parker  v. 1066 

Fairmont;  Sharon  Steel  Corp.  u 993,1098 

Faison  v.  McLean  Trucking  Co 856 

Faith  Center,  Inc.  v.  Federal  Communications  Comm'n 1006,1111 

Farkas  u  New  York  State  Dept.  of  Health 1033 

Farley  v.  Roberts     1005 

Farm  Stores,  Inc.  v.  Texaco  Inc 1039 

Farrier;  Lamp  v. 1009 

Farris  v.  U.  S.  Postal  Service ....  907 

Faulisi  v.  United  States 908 

Fauver;  Zeltner  u 838 

Fay  v.  O'Brien 854 

Fay  v.  United  States 853 

Fazzino  v.  United  States 851 

FCC;  Butler  v. 832 


TABLE  OF  CASES  REPORTED  LV 

Page 

FCC;  California  v. 809,1002 

FCC;  Faith  Center,  Inc.  v. 1006,1111 

FCC;  Florida  Public  Service  Comm'n  v. 809,1002 

FCC;  Genesis  Broadcasting  Ltd.  v. 946 

FCC;  Louisiana  Public  Service  Conun'n  v. 809,1002 

FCC;  Martin-Trigona  v. 1034 

FCC;  Public  Utilities  Comm'n  of  Ohio  v. 809,1002 

FCC;  Royce  International  Broadcasting  Co.  u 995 

Federal  Deposit  Ins.  Corp.;  Morrison  v. 1019 

Federal  Deposit  Ins,  Corp.  u  Philadelphia  Gear  Corp 918 

Federal  Deposit  Ins.  Corp.;  Wood  v. 944 

FEC;  Hopftnann  v.     1038 

FEC  v.  Massachusetts  Citizens  for  Life,  Inc 1049 

FERC;  Natural  Gas  Pipeline  Co.  v. 1066 

FERC;  Public  Service  Co.  of  Colo.  v. 1081 

FERC;  Tulalip  Tribes  of  Wash.  v. 900 

Federal  Home  Loan  Bank  Bd.;  State  Savings  &  Loan  Assn.  v.  .    .  .     1057 

FLRA;  Equal  Employment  Opportunity  Comm'n  v. 811,1031 

FLRA;  New  York  Council  Assn.  of  Civilian  Technicians  v. 846 

Federal  Land  Bank  of  Columbia;  Cotton  v. 1104 

Federal  Trade  Cornm'n  v.  Indiana  Federation  of  Dentists 900 

Fein  u  Perrnanente  Medical  Group 892 

Felder  v.  Alabama 976 

Felder  v.  South  Carolina     1066 

Fells  v.  Snyder 922 

F.  E.  L.  Publications,  Ltd.  u  Catholic  Bishop  of  Chicago 824 

Felt  v.  First  Bank  of  S.  D 824 

Fensterer;  Delaware  u 15 

Fenton;  Miller  v. 104 

Ferguson  v.  United  States 857,1032 

Ferrari;  Martin-Trigona  v. 860 

Ferro  Corp.;  Brown  v.     947 

Fetherston;  Blocker  v    .  .  831 

Fibre  Glass-Evercoat  Co.;  Argus  Chemical  Corp.  v.          903 

F.  I.  Corp.  v.  Bank  of  America,  N.  T.  &  S.  A 850 

Fidelity  &  Casualty  Co.  u  Philadelphia  Resins  Corp 1082 

Figneroa  u  United  States         .  840 

Fine  u  Bellefonte  Underwriters  Ins.  Co.        .  .  826 

Finkbeiner;  Kerr  v. .    .  929 

Firefighters  v.  Cleveland  .  816,1047 

Firestone;  Geison  v     1066 

Firestone  Tire  &  Rubber  Co.  u  Cousineau 971 

Firestone  Tire  &  Rubber  Co.;  Morgan  v. 843 

Firestone  Tire  &  Rubber  Co.  v.  United  States 1070 


LVI  TABLE  OF  CASES  REPORTED 

Page 

First  Ala,  Bank;  Parsons  Steel,  Inc.  v. 518 

First  Bank  of  S.  D.;  Felt  v. 824 

First  Citizens  Bank  of  Billings  v.  EEOC     902 

First  Federal  of  Mich.;  Miller  v. 849 

First  Federal  Savings  &  Loan  Assn.  of  Brunswick;  McGee  v.    905 

First  National  Bank  of  Mt.  Vernon;  Waffenschmidt  v. 1056 

First  National  Bank  &  Trust  Co.;  Thompson  v. 895,1027 

First  Presbyterian  Church  of  Anna;  York  v. 865 

First  State  Bank;  Davis  u 1098 

Fisher  v.  Berkeley 898 

Fisher  v.  United  States 819,838 

Fitzgerald;  Sorensen  v. 918,1014 

Flamer  u  Delaware 865 

Fleming  v.  Alabama 857 

Fleming  v.  United  States 997 

Flores  v.  Southern  Pacific  Transportation  Co 828 

Florida;  A.  E.  R.  v. 1011 

Florida  u  Arango     806,1015 

Florida;  Brown  v. 1034,1038 

Florida;  Burr  v. 879 

Florida;  Enriquez  v. 906 

Florida;  Francis  v. 1094 

Florida;  Griffin  v. 1094 

Florida;  Johnson  v. 865 

Florida;  Oats  v. 865 

Florida;  O'Neil  v. 861 

Florida;  Patten  v. 876 

Florida;  Pressley  v 982 

Florida;  Pugh  v. 847 

Florida;  Reynolds  v. 980 

Florida  v.  Ross 898,945 

Florida;  Stano  v.     1093 

Florida;  Wigley  v. 949 

Florida;  Wright  v. 1094 

Florida  Dept.  of  Revenue;  Delta  Air  Lines,  Inc.  v. 892 

Florida  Dept.  of  Revenue;  Eastern  Airlines  Inc.  v.    .          892 

Florida  Dept.  of  Revenue;  Northeastern  International  Airways  v.       891 
Florida  Dept.  of  Revenue;  Wardair  Canada  Inc.  v.          .        943,1002,1079 

Florida  Public  Service  Comm'n  v.  FCC     .  809,1002 

Florida  State  Univ.  Health  Center  v.  Joshi 948 

Flota  Mercante  Grancolombiana,  S.A.;  Pennington  v. .          1057 

Flower  Hill;  Collard  v.       827 

Flowers  v.  General  Motors  Corp 1085 

Fluidyne  Instrumentation  v.  Bank  of  America,  N.  T.  &  S.  A.  .    .  .         850 


TABLE  OF  CASES  REPORTED  LVII 

Page 

Flying  Tiger  Line,  Inc.;  Patel  -v. 947 

Flying  Tiger  Line,  Inc.;  Zlomke  v. 833,1014 

Flynn  v.  Shultz 830 

Folak  v.  United  States         827 

Folger  Coffee  Co.  v.  Indian  Coffee  Corp 863 

Foltz;  Bowen  v.     1035 

Fondel  u  Ford  Motor  Co 993 

Food  &  Commercial  Workers  v.  Baerwaldt 1059 

Food  &  Commercial  Workers;  Jones  Dairy  Farm  v. 845 

Food  &  Drug  Administration;  Contact  Lens  Mfrs.  Assn.  v. 1062 

Foote  Memorial  Hospital,  Inc.  v.  Grubb 946 

Forbes;  Varnes  v.      1058 

Ford,  In  re 814 

Ford;  Burton  v.   858 

Ford  v.  Ford   909 

Ford  v.  Heckler 859 

Ford  v.  Wainwright 1019 

Ford  Motor  Co.;  Fondel  v. 993 

Ford  Motor  Co.;  O'Kane  u 888 

Ford  Motor  Credit  Co.;  Suburban  Ford,  Inc.  v.    995 

Foreman  v.  United  States 1023 

Forsyth  v.  Larsen           982 

Fortune;  Schiavone  v.    814 

Fosburg;  Mir  v. 981 

Foster  v.  Commissioner 1055 

Foster  v.  New  York       857 

Foster  v.  Smith 861,990 

Foster,  P.  C.  v.  United  States     1061 

$4,255,625.39  v.  United  States 1056 

Fowler  v.  Southeast  Toyota  Distributors,  Inc 951,1038 

Francis;  Brown  v.            .      .                     865 

Francis;  Cape  v. 911,1027 

Francis  v  Florida       .              . .  1094 

Francis;  Smith  v. .      .      .    925,1026 

Franklin  State  Bank;  Evans  v. 949 

Franklin  State  Bank;  McCrary  v. 949 

Fransaw;  McCotter  v ....                   864 

Franzen;  Gorham  v.  .                       ...           ...                     ...  922 

Fraser;  Bethel  School  Dist.  No.  403  v.  .    814,1046 

Frazier  v  Placer  Savings  &  Loan  Assn 1035 

Frazier  v.  United  States     ...            922 

Frederick  v.  United  States       .  .               1009 

Freedom  Realty;  Freedom  Savings  &  Loan  Assn.  v.            .              .  845 

Freedom  Savings  &  Loan  Assn.  v.  Freedom  Realty 845 


LVIII  TABLE  OF  CASES  REPORTED 

Page 

Freedom  Savings  &  Loan  Assn.  u  Way 845 

Freeland  v.  United  States 1009,1097 

Freeman;  Owens  v. 838,990 

French  v.  Mead  Paper  Corp 820 

Friday;  Bazemore  v.     978,1080,1099 

Friday;  United  States  v.     978,1099 

Friel  v.  Maine 1032 

Fritz  v.  Marsh 832 

Froeman  v.  Maryland 860 

Froneberger  v.  Armstrong 1023 

Frontier  Properties,  Inc.;  Wade  v. 837 

Fryar,  In  re 993 

Frye  v.  Steelworkers       1007 

Fryzel  v.  Cash  Currency  Exchange,  Inc 904 

Fudger  v.  Montgomery  County 947 

Fuentes  v.  New  York 906 

Fulcomer;  Coder  v. 832 

Fulcomer;  Cole  v. 921 

Fulcomer;  Davis  v. 1010 

Fulcomer;  Evans  v. 1066 

Fulcomer;  Sawyer  v. 1063 

Fulcomer;  Weibner  v. 852 

Fulcomer;  Zimmerman  v. .  997 

Fuller  u  North  Carolina 1065 

Fuller  v.  United  States 1008 

Fulsorn  v.  Morris 952 

Furka;  Great  Lakes  Dredge  &  Dock  Co.  v 846 

Futura  Development  Corp.  v.  Centex  Corp .        .  850 

Gabriel  Energy  Corp.  v.  Hodel         900 

Gaertner  v.  United  States                1009 

GAF  Corp.  v.  Cheng 809 

Gaines  u  Merchants  National  Bank  &  Trust  Co.  of  Indianapolis  .  .  .  1030 

Gainesville  v.  Island  Creek  Coal  Sales  Co 948 

Galioto;  Department  of  Treasury  v.  .          943 

Gallentine  v.  United  States 1105 

Galuszka  v.  Schwab ...          803 

Gamez  v.  Texas ...  833 

Gannon  v.  Arizona 1010 

Gans  v.  Mundy ...  1010 

Gant  v.  United  States 851 

Gantt,  In  re 896,1016 

Garcia  v.  Dixon .  1043 

Garcia  v.  Southern  Pacific  Transportation  Co .  .  848 

Garcia  v.  United  States 832,907 


TABLE  OF  CASES  REPORTED  LEX 

Page 

Garrnany  v.  United  States 1062 

Garrett  v.  Arkansas 823 

Garwood  v.  United  States 1005 

Gasparro  v.  Connecticut 828 

Gassett  v.  United  States     855 

Gati  v.  United  States 1024 

Gay  v.  Coats  &  Clark,  Inc 903 

Gay  v.  Henry     983 

Gay  v.  Petsock 951 

Geiger  v.  United  States 1086 

Geisler  v.  Kansas 904 

Geison  -v.  Firestone 1066 

Gel  Spice  Co.  v.  United  States 1060 

General  Dynamics,  Inc.;  Jackson  v.    1063 

General  Electric  Credit  Corp.;  Grant  v. 1031 

General  Felt  Industries,  Inc.;  Aleern  v. 813 

General  Motors  Corp. ;  Baker  v.    899 

General  Motors  Corp. ;  Devex  Corp.  v. 890 

General  Motors  Corp. ;  Flowers  u 1085 

General  Motors  Corp. ;  Technograph,  Inc.  v. 819 

General  Services  Administration;  Thomas  v. 843 

Genesis  Broadcasting  Ltd.  v.  Federal  Communications  Comm'n     .  946 

Gentsch  v.  Roberson     1065 

George;  Liberty  National  Bank  &  Trust  Co.  of  Louisville  v.    821 

George;  United  Ky.  Bank,  Inc.  v.        821 

George  A.  Creed  &  Son,  Inc.  v.  Trident  Technical  College  ...      .  1060 

Georgia;  Alderman  v 911,1000 

Georgia;  Baxter  v.           935 

Georgia;  Beck  v. .          872 

Georgia;  Conklin  v. 1038 

Georgia;  Dick  v.  .            865 

Georgia;  Hance  v. 1038 

Georgia;  Walker  -v 865,1015 

Georgia  Dept.  of  Medical  Assistance  v.  Bowen 1059 

Georgia  Theatre  Co. ;  Patterson  v. 1024 

Gerace  v.  Grocery  Mfrs.  of  America,  Inc 801 

Gerace;  Grocery  Mfrs.  of  America,  Inc.  v.          820 

Geringer  v.  California 1065 

Gholson;  Reid  v. .        824,1014 

Gholston  v.  United  States 1012 

Gibbons,  Inc.;  Crawford  Fitting  Co.  v. 890 

Gibson  v.  Board  of  Attorneys  Professional  Responsibility  of  Wis.  976 

Gibson;  Prevatte  v. 918 

Gibson  v.  United  States       1100 


LX  TABLE  OF  CASES  REPORTED 

Page 

Gilbert  v.  Burlington  Industries,  Inc 978 

Gilbert  v.  California  State  Personnel  Bd 841 

Giles  v.  Indiana 858 

Gillespie  v.  Wisconsin 1083 

Gillies  v.  Delozier ....    1100 

Gillis  v.  Orr 908 

Gingles;  Thornburg  v.    808 

Ginnodo  v.  Office  of  Personnel  Management 848 

Ginsberg;  Authier  v. 888 

Girjalva;  Wright  v. 861 

Givens  v.  United  States 953 

Givens  Signs,  Inc.  u  Nags  Head 826 

Gladney  v.  Commissioner 923 

Glaesman;  Tudor  v. 995 

Glass  v.  United  States 856 

Glassboro;  Philadelphia  v. 1008 

Gleason  v.  United  States 1058 

Glenwood  T.V.,  Inc.  v.  Ratner      ....  916 

Glick  u  Lockhart 834,997,1084 

Glover;  Alabama  Dept.  of  Corrections  v. 806 

G.  N.  A.  C.  Corp.;  Simone  v.      820 

Gobley  v.  Minnesota 922 

Goeres;  Rosberg  v. 861 

Goldberg  v.  United  Parcel  Service  of  America,  Inc 920 

Goldblatt  v.  Vogel     952 

Golden;  Grace  v. 901 

Golden  Nugget  Hotel  &  Casino;  Simone  v 820 

Golden  State  Transit  Corp.  v.  Los  Angeles 811 

Golden  West  Broadcasters,  Inc. ;  Sharp-Eye  Enterprises  v.  . .    .  817 

Golden  West  Broadcasters,  Inc.;  Smith  v.  .    .                             ....  817 

Goldfarb  v.  Supreme  Court  of  Va 1086 

Goldhammer;  Pennsylvania  v. 28 

Goldman  v.  Massachusetts 906 

Goldman;  Ridley  v. 1011 

Goldstein;  Manhattan  Industries,  Inc.  v 1005 

Golin  v.  Brookhaven  National  Laboratory 1059 

Gonzales  v.  United  States 1068 

Gonzalez  v.  United  States 831 

Gonzalez-Rios  v.  United  States ....  822 

Goodlataw  v.  Alaska 813,996 

Goodpaster  v.  United  States      983 

Goodwin  u  United  States 1084 

Gordon  v.  Idaho ...    803, 1097 

Gordon  v.  New  York 1009 


TABLE  OF  CASES  REPORTED  LXI 

Page 

Gorham  v.  Franzen 922 

Gormong  v.  Electrical  Workers 834,990 

Gottschall  u  Jones  &  Laughlin  Steel  Corp 845 

Goudlock  v.  Morris 979 

Gould  Inc.;  Wisconsin  Dept.  of  Industry,  Labor  &  Human  Rel.  v.        942 

Govern  v.  United  States 851 

Government  Employees  v.  Reagan     1001 

Government  Employees;  Warren  v 1006 

Governor  of  Haw.  v.  Robinson 1018 

Governor  of  Mich.;  Blue  Cross  &  Blue  Shield  of  Mich,  u 805 

Governor  of  Miss.;  Papasan  -v.    1004 

Governor  of  N.  Y. ;  Maresca  v 802 

Governor  of  Pa.  v.  Am.  College  of  Obstetricians  &  Gynecologists       809 

Grace  v.  Burger 1026 

Grace  v.  Golden     901 

Grace  v.  Wainwright 901 

Graczyk  v.  Steelworkers 970 

Grady  v.  Missouri 951 

Graewe  u  United  States 1068,1069 

Graham;  Adams  v.        835 

Graham  v.  United  States     .  .  901 

Grand  Canyon  Trail  Guides  u  Hodel 846 

Grant  u  General  Electric  Credit  Corp 1031 

Grant;  Stetz  v. 1033 

Grant  u  United  States     998,1023 

Grant  &  Co.;  Kahn  v 1058 

Grant  &  Co.;  Tiffany  Industries,  Inc.  v 1058 

Grason  Electric  Co.  v.  Sacramento  Municipal  Utility  Dist 1103 

Graves  v.  United  States ..      1064,1100 

Gray  v.  Department  of  Transportation ...        .     1069 

Grayson  v.  Alabama         .  .          865 

Great  Atlantic  &  Pacific  Tea  Co. ;  Young  v.  947 

Greater  Baton  Rouge  Port  Cornm'n  v.  Jacintoport  Corp. 1057 

Greater  Houston  Chapter  of  ACLU;  Eckels  v. 980 

Greater  Houston  Transportation  Co.;  Arrow  Northwest,  Inc.  v.  , .         903 

Great  Lakes  Dredge  &  Dock  Co.  -v.  Furka 846 

Greber  v.  United  States  ....       988 

Green  v.  Mansour        .  .  64,977,1100 

Green  v.  Maryland           .  .    .          .  .  1066 

Green;  McMahon  v.  .  .  .  819 

Green  v  Mississippi        .    .      .         979 

Green  v,  Schwarzer 921,1027 

Green  v.  South  Carolina      .  .          .      .      . .          921 

Green  v  United  States .      .  905,925 


LXII  TABLE  OF  CASES  REPORTED 

Page 

Greenfield;  Wainwright  u 284,810,897 

Greenspun  u  United  States 901,1032 

Greer  i;.  Black 837 

Greer;  Jones  v. 1011 

Greer;  Lillard  v. 1084 

Greer;  Searcy  v. 996 

Greer  v.  United  States    841 

Gregory  v.  Auger 1035 

Gregory;  Strode  u 803,948 

Greif  u  Bedford 907 

Greyhound  Lines,  Inc.  v.  Wilhite 910,1026 

Griffin,  In  re 1100 

Griffin  v.  Florida 1094 

Griffin  u  Rhode  Island 845 

Griffin  u  Scully 905 

Griffith  u  United  States 837,1085 

Grimmer  v.  Harden 1007 

Grine;  Coder  v. 907 

Grisso  v.  Lockhart 841 

Grocery  Mfrs.  of  America,  Inc.  v.  Gerace 820 

Grocery  Mfrs.  of  America,  Inc.;  Gerace  u 801 

Gronowicz  v.  United  States    1055 

Groshon  v.  Douglas    1035 

Grothe,  In  re 944 

Group  I  Defendants;  Pleasant  View  Elementary  School  PTA  v.  .  .  .  .  1021 

Grove  v.  Mead  School  Dist.  No.  354     826 

Groza  v.  Veterans  Administration 873 

Grubb;  W.  A.  Foote  Memorial  Hospital,  Inc.  v. 946 

Grumman  Ohio  Corp.  v.  New  York  City 1081 

Grynberg  v.  Danzig    ....              819 

Guam;  Snear  v. 828 

Guerra;  California  Federal  Savings  &  Loan  Assn.  u 1049 

Guilford  County  Bd.  of  Ed.;  Hunt  u  . .          947 

Gulf  Coast  Cable  Television  Co.  v.  Affiliated  Capital  Corp 1053 

Gulf  Oil  Co.;  Palazzo  v. 1058 

Gulf  South  Machine,  Inc.;  Kearney  &  Trecker  Corp.  v. 902 

Gupton;  Davis  v. .  1023 

Guthrie  v.  Holland 841 

Guzman  v.  United  States 1054 

Guzmon  v.  Texas ...          1015 

Haas  v.  Weiner .  981 

Hackett  v.  Housing  Authority  of  San  Antonio       . .          850 

Hackley  v.  United  States .  839 

Haddix  v.  Ohio  Liquor  Control  Cornm'n 997,1077 


TABLE  OP  CASES  REPORTED  LXIII 

Page 

Hafher  v.  Alabama 1033 

Hagerty  v.  Keller 968 

Hairston  v.  United  States 854 

Haislip  v.  Kansas 1022 

Hajimaholis;  Sparrow  v. 1006,1111 

Hakim  v.  Wolverine  Packing  Co 998 

Haley  u  United  States 854 

Hall  u  Simcox 1006 

Hallamore  Motor  Transportation;  Consolidated  Rail  Corp.  v. 918 

Hallstrom  v.  Stivers 902 

Halperin;  Barney  v. 828 

Hamilton  v.  California 1016 

Hamm  v.  Parker 1103 

Hammond  v.  Rapides  Parish  School  Bd 829 

Hampton  v.  California        825 

Han  v.  Pilato    1056 

Hance  v.  Georgia     1038 

Hancharik  v.  Pennsylvania     819 

Handley  v.  United  States 916,951 

Hannon;  Edwards  v.     823 

Hannon;  SoweDs  v.      823 

Hanrahan  v.  Welborn     .          1104 

Hansen  v.  United  States     834 

Hardcastle;  Abdul-Rahim  u 1010 

Harden;  Grimmer  v.  . .    . .            1007 

Hardin  v.  United  States    905 

Hardwick;  Bowers  v. 943 

Harley  v.  United  States    .            858 

Harney  u  United  States                847 

Harrell  v.  Alabama       935 

Harrell  v.  United  States 1100 

Harrelson  v.  United  States 1034 

Harris;  Beckham  v.  .    .            903 

Harris;  Edwards  v.           .                    1004 

Harris  v.  Kentucky .        ...  842 

Harris;  Pernsley  v.                         965 

Harrison  v.  McDade                   1066 

Harrleson  v.  United  States                 . .            908 

Harrod  v.  Lincoln   .  .                             ....           .          835 

Hart  v.  Risley          1013 

Hart  v.  United  States 839,1101 

Hartford  u  Arizona     .          863 

Hartford  Federal  Savings  &  Loan  Assn.;  Tucker  u       896,920 

Hartford  National  Bank  &  Trust  Co.;  Tucker  v. 845 


LXIV  TABLE  OF  CASES  REPORTED 

Page 

Hart  Schaf&ier  &  Marx  v.  Natural  Footwear  Ltd 920 

Harvey  v.  United  States     831 

Harvis  Construction  v.  U.  S.  ex  rel.  Martin  Steel  Constructors  ....       817 

Hassain  v.  Newblatt 836 

Hatch  v.  Oklahoma 1073 

Hatch  v.  Reliance  Ins.  Co 1021,1048 

Hatcher  v.  United  States    952 

Hauptman;  Hollidayv. 950,1077 

Hauptmann  v.  Wilentz 1103 

Hawaii;  Hou  Hawaiians  v. 1055 

Hawaii;  Kahikina  v. 950 

Hawes  v.  United  States 909 

Hawkins  v.  United  States 839,1103 

Hawley  v.  United  States 848 

Hayes  v.  Cannon 903,1027 

Hayes  v.  Hayes     853 

Hayes  u  Illinois 1084 

Hayes  v.  Lockhart 922 

Hayes  v.  United  States 842 

Haynes  v.  Verdeyen 1083 

Hazelwood  v.  United  States 1033 

Hearron  v.  Kansas 839 

Heath  v.  Alabama 82 

Hebert  v.  United  States 818 

Heckler  v.  Abington  Memorial  Hospital 863 

Heckler  v.  American  Hospital  Assn 810 

Heckler  v.  Aurora  Community  Hospital 863 

Heckler;  Ford  v. 859 

Heckler  v.  Humana  of  Aurora,  Inc .          863 

Heckler;  Jensen  v. 945 

Heckler;  Kolman  v. 997 

Heckler  v.  Michigan  Academy  of  Family  Physicians 815 

Heckler  v.  New  York  City 815 

Heckler  v.  Owens .  899 

Heckler  v.  Public  Agencies  Opposed  to  Social  Security  Entrapment      1004 

Heckler  v.  St.  James  Hospital 902 

Heckler;  Suarez  v. 844,1097 

Heckler;  Van  Horn  v. 854,1015 

Heckler;  Weisbraut  v. 852 

Hedges  v.  Allinder 892 

Hedwig  Village;  Ramie  v.     . .  1062 

Hefner,  In  re 992,1079 

Heggy  v.  Welty       947 

Heintz;  Baltimore  Gas  &  Electric  Co.  v.     847 


TABLE  OF  CASES  REPORTED 

Page 

Heiser  v.  Heiser 824 

Helena  Marine  Services;  New  York  Marine  Managers,  Inc.  v. 850 

Helena  Rubinstein,  Inc. ;  Marcon,  Ltd.  v. 825 

Helen  Mining  Co. ;  Mine  Workers  v.   1006 

Helfricht  v.  New  Jersey 807,1008 

Hellenic  Lines  Ltd. ;  Dracos  v.   945 

Heller  v.  Boyd 982 

Helminski  v.  Ayerst  Laboratories 981 

Helms;  Men's  Wearhouse,  Inc.  v.    804 

Helms;  Sisson  v.      846 

Hembree-Bey  v.  Commissioner 852 

Hemme;  United  States  v. 814 

Hemphill  v.  United  States      982 

Henderson;  Barnes  v. 841 

Henderson  v.  Blackburn    1023 

Henderson;  Lee  v. 833 

Henderson;  Rasullah  v. 841 

Henderson  v.  United  States 900,992 

Hennessy  v.  Arizona    1067 

Henry  v.  Detroit  Manpower  Dept. 1036 

Henry;  Gay  v. 983 

Henry;  Miller  v 824 

Henry  v.  United  States     855 

Hepler  v.  Columbia  Broadcasting  System,  Inc 946 

Hercules  Inc.;  Philadelphia  Electric  Co.  v.       980 

Heredia-Fernandez  v.  United  States 836 

Herier-Darcheriel  v.  United  States 822 

Herion;  Paulussen  v 899,1017,1031,1047 

Herman;  Corley  v. 831 

Hernandez  v.  Bureau  of  Prisons 1034 

Hernandez  u  McCotter 832 

Hernandez  v.  United  States 905 

Hernandez-Cartaya  v.  United  States 816 

Hero  Id;  Burlington  Northern  Inc.  V.       888 

Herrera-Ceballos  -v.  Immigration  and  Naturalization  Service 853 

Herrera-Vega  v  United  States 858 

Hershey  v.  United  States.              1062 

Hess;  Bykofsky  v.        ...                   995 

Hess  Oil  Virgin  Islands  Corp. ;  Vanterpool  v.        ...            1059 

Hestnes  v.  Commissioner          ...          904 

Hewitt  v.  Truth  or  Consequences           .                     .  .            ...          .  844 

H.  F.  Allen  Orchards  v.  United  States.    .                818 

Hicks  v.  McCotter             . .                                 ...            ....  952 

Hicks;  Sloan  v. .          .  ...      1006,1111 


LXVI  TABLE  OF  CASES  REPORTED 

Page 

Hiegel  v.  Hill 1058 

Hijar  v.  Burrus 816,1016 

Hilbmann  u  United  States 1062 

Hill;  Hiegel  v. 1058 

Hill  u  Lockhart 52 

Hill  v.  United  States 923 

Hillery;  Vasquez  v.     254 

Hinke  v.  Workers'  Compensation  Appeals  Bd 1013 

Hinton  v.  Director,  Office  of  Workers'  Compensation  Programs   . .  847 

H.  K.  Porter  Co.;  Oman  v. 970 

Hobbs  v.  Blackburn 838 

Hodel;  Canyoneers,  Inc.  v. 846 

Hodel;  Gabriel  Energy  Corp.  v. 900 

Hodel;  Grand  Canyon  Trail  Guides  v.     846 

Hodel  v.  Irving 1049 

Hodel;  Montana  v. 919 

Hodel;  Stearns  Co.  v. '. 900 

Hodges  v.  Ann  Arbor    859 

Hoerner;  Woodside  v. 949 

Hoffer  v.  Illinois 847 

Hof&nan  v.  Eti-Quette  Assaf  Ltd 1001 

Hogg  Brothers  Partnership;  Miller  v. 1007 

Holiday  Inn  of  Wilkesboro;  Douglas  v.     847 

Hollahan;  Rodriguez  v. 1035 

Holland;  Carr  v. 1083 

Holland;  Guthrie  u 841 

Holland;  Spaulding  v 998 

Holland;  Thornton  v. 1083 

Holleman  v.  Duckworth 1069 

Holliday  v.  Hauptman 950,1077 

Holloway  v.  Lockhart        .            836 

Holloway  v.  Walker 1037 

Holman  u  United  States 1062 

Holman  &  Sons,  Ltd.  v.  Correia .    ...  1082 

Holman  &  Sons,  Ltd.  v.  Superior  Court  of  Cal.,  San  Diego  Cty.  1082 

Holmes;  Kewanee  Oil  Co.  v.     953 

Holmes  v.  United  States 1061 

Holohan;  Ronwin  v.        ...      .  864 

Holsey  u  Maryland        .      ...  1004,1006,1077 

Holt;  Busby  v. 1068 

Holway  v.  Burger 949 

Hooks  v.  Phelps 1068 

Hooper  v.  Arizona 1073 

Hooper  v.  Washington 919 


TABLE  OF  CASES  REPORTED  LXVII 

Page 

Hoosman  v.  Arizona 841 

Hoover;  Cumberland  Area  Teamsters  Pension  Fund  v. 845 

Hoover  v.  Dole 902 

Hopfmann  u  Federal  Election  Cornm'n 1038 

Hopkinson  v.  United  States    1022 

Hopkinson  v.  Wyoming 865,1026 

Horan  v.  United  States 1043,1112 

Home  v.  United  States 836 

Horowitz  v.  United  States 822 

Hotel  &  Restaurant  Employees  V.  Seritis 1060 

Houdenosaunee;  Oneida  Indian  Nation  v. 823 

Hou  Hawaiians  u  Hawaii 1055 

Housing  Authority  of  Opelousas;  Cunningham  v. 1007 

Housing  Authority  of  San  Antonio;  Hackett  v. 850 

Houston  Northwest  Medical  Center,  Inc.;  Hughes  v.       1020 

Howard,  In  re 991 

Howard  v.  Howard 857 

Howard  v.  Radio  Corp.  of  America 907 

Howard  Univ. ;  Mabin  v. 922 

Howell  u  Maryland      996,1077 

H.  Trurnan  Chafin  Legal  Corp.;  Blair  v.        840 

H.  Trurnan  Chafin  Legal  Corp.;  Blairco,  Inc.  v.    840 

Hubbard  v.  White 834 

Hudson  v.  Moran       981 

Hudson;  Teachers  v. 810 

Hudspeth  v.  North  Miss.  Savings  &  Loan  Assn 1054 

Huebner;  Satterneld  v. 818 

Huebner  v.  United  States 817 

Hughes;  Ascani  v. 1001 

Hughes  v.  Houston  Northwest  Medical  Center,  Inc 1020 

Hughes  v.  Rhode  Island 1009 

Hughes  v.  United  States 860 

Hughes  Aircraft  Co. ;  Ahrned  v. 1067 

Hughes  Properties,  Inc.;  United  States  v.    1004 

Hughes  Tool  Co.;  Smith  International,  Inc.  v. 827 

Hughs  v  United  States     1084 

Hulsey  v.  United  States      1022 

Humana  Inc.  u  Bowen  ...             1055 

Humana  of  Aurora,  Inc.;  Heckler  v. 863 

Hume  v.  Durwood  Medical  Clinic,  Inc 848 

Humphrey  v.  U.  S.  District  Court      853 

Humphries  v.  Chesapeake  City  Police  Dept 831 

Humphries;  Pittsburgh  &  Lake  Erie  R.  Co.  v. 863 

Hunt  v.  Guilford  County  Bd.  of  Ed 947 


Lxvm  TABLE  OF  CASES  REPORTED 

Page 

Hunt  v.  Ohio 840 

Hunt;  Shaw  v. 1012 

Hunt  v.  United  States 1061 

Hunter  v.  Illinois 997 

Hunter  v.  United  States 842,1067 

Hunter;  United  Van  Lines,  Inc.  v. 863,1014 

Kurd,  In  re 916 

Hurvitz  v.  Division  of  Medical  Quality 1081 

Hurwitz  v.  Texas 1102 

Huskey  v.  Tennessee 936 

Hutchings  v.  United  States 829 

Hatchings  von  Ludwitz  v.  United  States  Parole  Comm'n 984 

Hutto;  Carr  v. 1019 

Hutto  v.  Jones 916 

Hyde  v.  Van  Wormer 827,992 

Hylin  v.  United  States 807 

Hyter,  In  re 807 

lannaccio  v.  Pennsylvania 830 

Icicle  Seafoods,  Inc.  v.  Worthington 900,978,1080 

Idaho;  Gordon  v. 803,1097 

Idaho  Dept.  of  Health  and  Welfare;  Bowden  v.     805,1000 

Idlebird  u  Director,  Office  of  Workers'  Compensation 859,1000 

Igbatayo  v.  United  States 862 

Illinois;  Allen  u 979,1080,1100 

Illinois;  Antonelli  v.    1103 

Illinois;  Bell  v. 852 

Illinois;  Bennett  v 858 

Illinois;  Bobis  v. 827 

Illinois;  Bondi  v. 836 

Illinois;  Brisbon  u 908 

Illinois;  Carroll  v. 1066 

Illinois;  Collins  v. 935,1027 

Illinois;  Deacon  v. 921 

Illinois;  Del  Vecchio  v. 883,1015 

Illinois;  Hayes  v.     1084 

Illinois;  Hoffer  v. 847 

Illinois;  Hunter  v. .  997 

Illinois;  Kosyla  v. 832,907 

Illinois;  Lee  v. 812 

Illinois;  Lewis  v. . .          865 

Illinois;  Lovinger  v. 919 

Illinois;  Lyles  v. 859 

Illinois;  Madej  v. 935, 1038 

Illinois;  Morris  v. 856 


TABLE  OF  CASES  REPORTED  LXIX 

Page 

Illinois;  Norton  v.    803 

Illinois;  Perez  u 1110 

Illinois;  Smith  v. 949 

Illinois;  Stocki  v. 952 

Illinois;  Thrasher  v. 850 

Illinois;  Williams  v. 836 

Illinois;  Young  v. 833 

Illinois  Commerce  Comm'n  v.  Interstate  Commerce  Comm'n 820 

Illinois  Community  Coll.  Dist.  515,  Prairie  State  Coll.;  Piarowski  v.  1007 

Illinois  Dept.  of  Revenue;  Pfluger  v. 848 

Illinois  Pro-Life  Coalition,  Inc.,  Ill  v.  Keith 980 

Immigration  and  Naturalization  Service;  Herrera-Ceballos  v. 853 

Immigration  and  Naturalization  Service;  Lachica  v. 1060 

Immigration  and  Naturalization  Service;  Mainsah  v. 977 

Immigration  and  Naturalization  Service;  Pasco  v. 1033 

Immigration  and  Naturalization  Service;  Quan  Young  v. 996 

INA  Life  Ins.  Co.;  Norwood  v. 1059 

Independent  Bankers  Assn.  of  N.  Y. ,  Inc.  v.  Marine  Midland  Bank  812 

Independent  News,  Inc.  v.  Bank  of  Ore 826 

Indiana;  Bixler  v.        834 

Indiana;  Davis  v.       1014 

Indiana;  Giles  u       858 

Indiana;  Kentucky  v. 1 

Indiana;  Moore  v. 1026 

Indiana;  Willardo  v. 1098 

Indiana  Federation  of  Dentists;  Federal  Trade  Comm'n  v. 900 

Indian  Coffee  Corp. ;  Folger  Coffee  Co.  v.      863 

Inge  v.  Sielaff 833 

In  re.     See  name  of  party. 

Insurance  Co.  of  North  America  v.  Puerto  Rico  Marine  Management  1102 

Integon  General  Ins.  Corp.;  Spellman  v. 1010,1097 

Internal  Revenue  Service;  Pfluger  v. 824 

International.     For  labor  union,  see  name  of  trade. 

International  Business  Machines;  Mally  v.          .  .  1037 

International  Paper  Co.;  Bishop  v. .      .                821 

International  Telephone  &  Telegraph  Corp.;  Miller  v.  ...        851,1015 

ICC;  Illinois  Commerce  Comm'n  v.       820 

ICC;  Monon  Shippers  Assn.,  Inc.  v. 828 

ICC;  Public  Service  Comm'n  of  Ind.,  Inc.  v.      909 

ICC;  Simmons  v. .  1055 

Inupiat  Community  of  Arctic  Slope  v.  United  States 820 

Iowa;  Van  Hoff  v,            1034 

Iris  v.  United  States ....  923 

Irving;  Hodel  v. 1049 


LXX  TABLE  OF  CASES  REPORTED 

Page 

Isadore  u  Kincheloe 1011 

Isaraphanich  v.  New  York 858 

Islamic  Republic  of  Iran  v.  McDonnell  Douglas  Corp 948 

Island  Creek  Coal  Sales  Co.;  Gainesville  u 948 

Israel;  Earl  v. 951 

Israel  v.  Walberg    1013 

Italiano  v.  Ohio 904 

Ivy  v.  Reed 1067 

Jacintoport  Corp.;  Greater  Baton  Rouge  Port  Comm'n  v.       1057 

Jackson,  In  re 978 

Jackson  u  General  Dynamics,  Inc 1063 

Jackson;  Michigan  v. 810,942 

Jackson  u  Oklahoma 838 

Jackson  v.  United  States 924,994 

Jackson  Pump  Co.;  Clark  v. 840,1000 

Jacob,  In  re 808 

Jacob  v.  Attorney  Grievance  Comm'n  of  Md 905 

Jacob  v.  United  States     851 

Jacobs;  Zerman  v. 845,1026 

Jaffe;  Mihal  v. 1030 

Jago;  McGaharan  v. 979 

James,  In  re 950 

James  u  Alabama  State  Personnel  Bd 825 

James  u  Tyler 1026 

James;  United  States  v. 978,1046 

James  River  Corp. ;  Salisbury  v. 1061 

Jamison  v.  United  States 830 

Jankowski  v.  United  States 1023 

Japan  Whaling  Assn.  v.  American  Cetacean  Society 1053 

Jarrad  v.  United  States 830 

J.  C.;  Department  of  Social  Services  of  Rusk  County  v. 971 

Jefferson  v.  Mercer 831 

Jefferson  v.  Muncy 997 

Jefferson  v.  United  States 806 

Jemmott  v.  United  States     998 

Jennell  v.  United  States 837 

Jennings  v.  Jennings      941 

Jensen  v.  Heckler 945 

Jeppesen  &  Co.  v.  Brocklesby .  1101 

Jin  Cha;  Warnick  v. 920 

Johanns  v.  United  States 850 

John  Holman  &  Sons,  Ltd.  u  Correia 1082 

John  Holman  &  Sons,  Ltd.  v.  Superior  Court  of  Cal. ,  San  Diego  Cty.  1082 

John  Koerner  &  Co.  v.  Plaintiff  Class  Reps.,  Corn  Deriv.  Antitr.  Lit.  1057 


TABLE  OF  CASES  REPORTED  LXXI 

Page 

Johns  v.  Supreme  Court  of  Ohio 824 

Johnson,  In  re 1048 

Johnson;  Chicago  Tribune  Co.  v. 915,1027 

Johnson  v.  Florida    865 

Johnson  v,  Johnson 920 

Johnson  v.  Linden  Shore  Dist 1102 

Johnson;  Lojuk  v. 1067 

Johnson  v.  Manson 1063 

Johnson  v.  Maryland    1093 

Johnson  v.  McCotter 994 

Johnson  v.  New  York  State  Court  Officers  Assn 855,1000 

Johnson  v.  Rex 967 

Johnson  v.  Righetti    828 

Johnson  v.  Tennessee  Dept.  of  Employment  Security ...      .  .    826 

Johnson  v.  Texas     865 

Johnson  v.  United  States 862 

Johnson;  Weeks  v 950 

Johnston  v.  Ann  Arbor      947 

Johnston  v.  Dowling 904 

Jokinen,  In  re 943 

Jones  v.  Brown    1068 

Jones  v.  California  .            821 

Jones  v.  California  Institution  for  Men    950 

Jones;  Eagle  Books,  Inc.  v.     920 

Jones  v.  Greer 1011 

Jones;  Hutto  v. 916 

Jones  v.  Jones 830 

Jones  v.  Lightner    .      .          801 

Jones  v.  Lightner  Auto  Sales     .            .    .          ....  801 

Jones;  McCotter  v. 947 

Jones;  Pak-Mor  Mfg.  Co.  v.        948 

Jones  v.  Postal  Workers      .  .      .            1003 

Jones;  Preuit  &  Mauldin  v.     .    .            ...            ...  1105 

Jones;  St.  Amand  v.               .          1065 

Jones  v.  Smith  .      .                 1073 

Jones  v.  United  States  .  .  837,981,1006 

Jones  v.  Wells .          .      .                .          .                1102 

Jones  Dairy  Farm  v.  Food  &  Commercial  Workers          .  .    .  .  845 

Jones  &  Laughlin  Steel  Corp. ;  Gottschall  v. 845 

Joost,  In  re                       ....            .  814 

Jorandby;  Raske  v.         .  .                    .  .                  802 

Jordan  v  Department  of  State 813,996 

Joseph  v.  New  Orleans  Electrical  Pension  and  Retirement  Plan     .  1006 

Joseph  Schlitz  Brewing  Co.;  Transcon  Lines,  Inc.  v.      .          .  848 


LXXII  TABLE  OF  CASES  REPORTED 

Page 

Joshi;  Florida  State  Univ.  Health  Center  v. 948 

J.  P.  Stevens  &  Co.;  Lex  Tex  Ltd.  v. 822 

J.  T.  Gibbons,  Inc.;  Crawford  Fitting  Co.  u 890 

Judge,  Court  of  Common  Pleas  of  Cuyahoga  County;  Kelly  v. 1008 

Judge,  Cuyahoga  County  Court  of  Common  Pleas;  Mihal  v. 1030 

Judge,  47th  Judicial  Dist.  Court  of  Tex.;  Amend  v. 849 

Judge  of  County  Court,  Schenectady  County;  Owen  v. 994 

Judge,  162d  Judicial  Dist.  Court,  Dallas  County;  Holloway  v.   1037 

Judge,  Second  Judicial  Dist.;  Rock  v. 1001 

Judge,  Superior  Court  of  D.  C.;  Edwards  v. 823 

Judge,  Superior  Court  of  D.  C.;  Sowells  u    823 

Judge,  Tenth  Judicial  Circuit  of  Ala.;  Burlington  Northern  R.  Co.  v.  1005 

Junction  City;  McQuay  v. 1007 

Junior  College  Dist.  of  Metropolitan  Kansas  City;  Sanders  v.  .      ...  922 

Jureczki  v.  Seabrook 941 

Justice;  Camden  Fire  Ins.  Assn.  v. 936 

Justice  of  Village  Court,  Mt.  Kisco  Village  v.  Conway 1100 

Kabanuk  v.  Minnesota 846 

Kabongo  v.  United  States 1063 

Kadota  u  United  States 839 

Kahikina  u  Hawaii 950 

Kahliq  v.  Brown 1110 

Kahn  v.  Alexander  Grant  &  Co 1058 

Kaiser  Aluminum  &  Chemical  Corp.  v.  Bonjorno 811 

Kaiser  Engineers,  Inc.;  Mauget  v.    1057 

Kalec  v.  Duckworth 860 

Kaltenbach  v.  Acadian  Metropolitan  Code  Authority 859,906 

Kaminsky,  In  re 896,1079 

Kane  v.  Edwards 835 

Kansas;  Bieker  v. 904 

Kansas;  Geisler  v.   904 

Kansas;  Haislip  v.   1022 

Kansas;  Hearron  v. .  .  839 

Kanter,  In  re .  .  991 

Kaplus  v.  Phillips 1059 

Kaprelian  v.  United  States 1008 

Karabin  v.  Petsock 857 

Karam  v.  United  States 1060 

Karapinka  v.  Union  Carbide  Corp 1060 

Karmun  v.  Commissioner 819 

Kasvin  v.  United  States 1032 

Kearney  &  Trecker  Corp.  v.  Gulf  South  Machine,  Inc 902 

Kearns  v.  United  States 821 

Kearson  v.  Southern  Bell  Telephone  &  Telegraph  Co 1065 


TABLE  OF  CASES  REPORTED  LXXin 

Page 

Keating  v.  United  States 1101 

Keith;  Illinois  Pro-Life  Coalition,  Inc.,  Ill  v.  980 

Keith;  Strader  v.     833 

Keith  v.  United  States 829 

KeUeher;  Randall  v. 840 

Keller;  Hagerty  v. 968 

Keller  v.  United  States 1082 

Kelley;  Metropolitan  County  Bd.  of  Ed.  of  Nashville  County  v. . . . .  1083 

Kelley  v.  United  States 860,990 

Kelly  v.  Warden,  House  of  Correction 853 

Kelly  v.  Whiting 1008 

Kemp  v.  Blake 943,998 

Kemp;  Bowden  v. 891 

Kemp;  Burden  v. 865 

Kemp;  Burger  v.     806 

Kemp  v.  Drake 993 

Kemp;  Mathis  v. 865,1015 

Kemp;  McCleskey  v. 812 

Kemp;  Messer  v.     1088 

Kemp  v.  Thomas     1048 

Kemp;  Tucker  v. 1001 

Kemp  v.  United  States 829 

Kemp;  Williams  v. 806 

Kendall  v.  United  States 1081 

Kendricks  u  Brown ....            1069 

Kennedy  v.  Alabama 975 

Kennedy  v.  Wainwright    1112 

Kenner  v.  United  States 980 

Kenny  v.  California 860 

Kenton  Meadows  Co.  v.  Commissioner 1082 

Kentucky;  Batson  u     812,942 

Kentucky;  Bogard  v. 843 

Kentucky;  Campbell  v.       856 

Kentucky;  Chambers  v. 1021 

Kentucky;  Crane  v. 1019 

Kentucky;  Harris  v. 842 

Kentucky  v.  Indiana 1 

Kentucky;  Shelor  v. 919 

Kentucky;  Vanover  v.      . .          953 

Kepreos  v.  United  States                  ...            ...  901 

Kerpelman  v.  Land       ...          820 

Kerr;  Bates  v.  .            .              . .              .              830 

Kerr  v.  Finkbeiner.  .                929 

Kessler  v.  United  States     860 


LXXIV  TABLE  OF  CASES  REPORTED 

Page 

Kewanee  Oil  Co.  u  Holmes 953 

Key  International  Mfg.,  Inc.  v.  Morse/Diesel,  Inc 1039,1078 

Kidwell,  In  re 1030 

Kimble  v.  Duckworth 1023 

Kimmelman  v.  Morrison 815,917 

Kimmelman;  Williams  v. 838 

Kincheloe;  Isadore  v. 1011 

King;  Lawhorn  u 903 

King  v.  Love 971 

King;  Scheppf  v. 1035 

King  County  Superior  Court;  Likakur  v. 835 

Kinloch;  Allen  v. 946 

Kirmane,  In  re 814 

Kirby  v.  United  States 901 

Kirchner  v.  Kirchner 1101 

Kirk  v.  Rees 838 

Kirkley  v.  Louisiana 1061 

Klein  v.  United  States 1009 

Kline,  In  re 896,1030 

Kling;  Los  Angeles  County  v. 936,1097 

Klir  -y.  United  States 1022 

Knapp;  Whitaker  v.        803 

Knight  v.  United  States    1067,1068 

Knoblauch  v.  Commissioner 830 

Knox  v.  Teamsters 857 

Koch;  Augustyniak  v.       840,1015 

Koecher;  United  States  u 815,992 

Koerner  &  Co.  u  Plaintiff  Class  Reps.,  Corn  Deriv.  Antitr.  Litig.  .     1057 

Koller;  Richardson-Merrell  Inc.  v. 808 

Kolman  v.  Heckler 997 

Komoto  u  Washington      .  .          ...     1021 

Korb  u  Pennsylvania ....  831 

Kori  Corp.;  Wilco  Marsh  Buggies  &  Draglines,  Inc.  v. .         902 

Koscot  Interplanetary,  Inc.  v.  Beachley  Investments,  N.  V.  .  .     1103 

Kosyla  v.  Illinois 832,907 

Kotvas  v.  United  States 953 

Kouhestanian  v.  United  States 952 

Koutsoubos  v.  Boeing  Vertol 821 

Kraco,  Inc. ;  Acosta  v. 1022 

Krahn,  In  re 899,1015 

Kramsvogel  v.  Wisconsin    .          901 

Krodel  v.  Young .          817 

KuUberg  u  United  States  .     1007 

Kwang-Wei  Han  v.  Pilato 1056 


TABLE  OF  CASES  REPORTED 

Page 

Kwiatecki  ^  United  States 905 

Labor  and  Industrial  Relations  Comm'n  of  Mo. ;  Wimberly  v. 942 

Labor  Union.     See  name  of  trade. 

Lacayo  v.  United  States 1019 

Lachica  v.  Immigration  and  Naturalization  Service 1060 

Lackey  v.  United  States 1101 

Laffitte  v.  United  States 862 

Lake  Coal  Co.  v.  Roberts  &  Schaefer  Co 120 

Lamb  v.  United  States 953 

Lambert  v.  United  States 1034 

Lamont  v.  Wolf 825 

Lamp  v.  Farrier 1009 

Land;  Kerpelrnan  v. 820 

Landes  v.  Department  of  Justice 821,1014 

Landi  v.  Sui 846 

Lane;  Dampier  v.    1085 

Lane  T>.  United  States 438 

Lane;  United  States  v. 438 

Lane;  Young  v. 951 

Langenegger  u  United  States 824 

Lanier  v.  South  Carolina     25 

Lapsley  v.  Legal  Services  of  Mauniee  Valley     1024 

Largo  v.  United  States 1 105 

Larkin,  In  re 941,1044 

Larsen;  Forsyth  u    982 

Larson;  National  Freight,  Inc.  v. 902 

Larson  v.  United  States      .            849 

Lashley;  Carrigan  v 834,990 

Lassiter-Geers  v.  Reichenbach 1019 

Las  Vegas;  Cunningham  v.   .  .    .          831 

Latham  v.  United  States 923 

Lauga  u  United  States   .    .            860 

Lavado  v.  United  States       .                 1054 

Lavelle  v.  United  States 817 

Lavicky;  Moore  v.            .                  1 101 

Lavoie;  Aetna  Life  Ins.  Co.  v 811 

Law  Firm  of  Daniel  P.  Foster,  P.  C.  v.  United  States 1061 

Lawhorn  v.  King     .                 .           .                   903 

Lawrence  v.  Cunningham            1083 

Lawton  v   Lusby  .                 805 

Layhue  v.  United  States           854 

Layne  v.  United  States 1085 

Lazard  v.  United  States                  908 

La-Z-Boy  Chair  Co.  v.  World  of  Sleep,  Inc 823 


LXXVI  TABLE  OF  CASES  REPORTED 

Page 

La-Z-Boy  Chair  Co.;  World  of  Sleep,  Inc.  v. 823 

L  &  C  Marine  Transport,  Ltd.;  Ward  u 904 

Leahey  v.  McGuire     . 860 

Leavitt;  Brown  v. 836 

LeBlanc  v.  United  States 854 

Lebovitz,  In  re 977 

Ledford;  Cossett  u 1065 

Lee  v.  Henderson 833 

Lee  u  Illinois 812 

Lee  v.  United  States 1081 

Leek  v.  United  States 1104 

Leeke;  Covington  v.     856 

Legal  Services  of  Maumee  Valley;  Lapsley  v. 1024 

Lehman  v.  United  States 994 

Lennon;  Ochoa  v. 979 

Leone  v.  Pierce  County  Medical  Bureau 1057 

Lepiscopo  v.  York 1105 

Lepman  v.  New  Jersey  Racing  Comxn'n 996 

Lerner;  Wold  v. 983 

Leroy  v.  Morris 831 

Levitt  v.  Monroe 1034 

Lewingdon  u  Ohio 982 

Lewis  v.  Blackburn 902 

Lewis  u  Illinois 865 

Lewis  v.  Port  Authority  of  N.  Y 944 

Lewis  u  United  States 1024 

Lex  Tex  Ltd.  v.  J.  P.  Stevens  &  Co 822 

Li;  Tsai  u 826 

Libbey-Owens-Ford  Co.  v.  Shatterproof  Glass  Corp 976 

Liberty  Lobby,  Inc.;  Anderson  v. 811 

Liberty  National  Bank  &  Trust  Co.  of  Louisville  v.  George 821 

Library  of  Congress  v.  Shaw     815,992 

Light  v.  United  States 1034 

Lightner;  Jones  u 801 

Lightner  Auto  Sales;  Jones  v. 801 

Lightsey  v.  Oklahoma 841,1000 

Lika  u  United  States 1022 

Likakur  v.  King  County  Superior  Court 835 

Lillard  u  Greer 1084 

Lincoln;  Harrod  v. 835 

Linden  Shore  Dist.;  Johnson  v 1102 

Liphete  v.  Stierheim 1069 

Lipsman  v.  New  York     . .              1066 

Little;  Michigan  v. 1024 


TABLE  OF  CASES  REPORTED  LXXVII 

Page 

Little,  Brown  &  Co.;  Martin  v 834 

Little  Flower's  Children's  Services;  Torres  v. 864 

Lizzana  v.  Schwegmann  Giant  Supermarkets,  Inc 854 

Local.     For  labor  union,  see  name  of  trade. 

Lockhart;  Burton  v. 1011,1112 

Lockhart  v.  Collins 1013 

Lockhart;  GUck  u     834,997,1084 

Lockhart;  Grisso  v. 841 

Lockhart;  Hayes  v.       922 

Lockhart;  Hill  v. 52 

Lockhart;  Holloway  v. 836 

Lockhart;  Lovelace  v. 1010 

Lockhart  v.  McCree 816 

Lockhart;  Pitts  v. 982 

Lockhart;  Williams  v. 832 

Lockheed  Missiles  &  Space  Co.;  Sakellar  v. 1084 

Lodi  Medical  Group,  Inc. ;  Roa  v. 990 

Lodowski;  Maryland  v. 811 

Loftsgaarden;  Randall  u 978 

Lojuk  v.  Johnson     .  .  1067 

Lombard;  Spika  v.       1056 

Lombardi;  Phillips  v. 861 

Lombard's  Inc.  v.  Prince  Mfg. ,  Inc 1082 

London  v.  Manhattan  Life  Corp 827 

Long  v.  United  States 856 

Longshoremen  v.  Davis  899,1098 

Longshoremen  v.  Ward         .        .     1008 

Longshoremen;  West  Gulf  Maritime  Assn.  v.     844 

Lopes  v.  United  States ...        .     1063 

Lopez  v.  Dallas  Offset,  Inc ....  ....       830 

Lopez  v.  United  States    ...          .  1054 

Lorain  Journal  Co.  v.  Milkovich       .  898,953 

Lord;  Chandler  v  .  .        ..  .  ....      853,1078 

Los  Angeles;  Golden  State  Transit  Corp.  v.  ,    .  .      .         811 

Los  Angeles;  Miller  v.  995 

Los  Angeles  u  Preferred  Communications,  Inc.  979,1048,1080,1099 

Los  Angeles  Branch  NAACP  v.  Los  Angeles  Unified  School  Dist.        919 

Los  Angeles  County  v.  Kling 936,1097 

Los  Angeles  County;  Perruzza  v.  .  .  ....          936 

Los  Angeles  County  Employees;  County  Sanitation  Dist.  No.  2  v.  .  995 
Los  Angeles  NAACP;  Los  Angeles  Unified  School  Dist.  v.  .  919 

Los  Angeles  Unified  School  Dist.;  Los  Angeles  Branch  NAACP  v.  919 
Los  Angeles  Unified  School  Dist.  v.  Los  Angeles  NAACP  .  ...  919 
Loud  Hawk;  United  States  v.  ...  .  302 


LXXVIII  TABLE  OF  CASES  REPORTED 

Page 

Louisiana;  Busby  v. 873,1015 

Louisiana;  Kirkley  v. 1061 

Louisiana;  Taylor  v. 1022 

Louisiana;  Wilson  v.   911,1027 

Louisiana  Public  Service  Comm'n  v.  FCC 809,1002 

Love;  King  v. 971 

Love  v.  United  States 1081 

Lovelace  v.  Lockhart 1010 

Lovelace  v.  United  States 907 

Lovett,  In  re 1079 

Lovett  u.  Michigan 1069 

Lovinger  v.  Illinois 919 

Lowe  v.  Cox  Communications,  Inc 982 

Lucas  v.  New  York 911 

Lucci  v.  United  States 843 

Lucero  u  Colorado  State  Bd.  of  Law  Examiners 856 

Lucien  v.  Chrans 1067 

Lucker  v.  United  States 909 

Lummus  Co. ;  Brancewicz  v. 1085 

Luna;  Chapman  v. 947 

Lunday-Thagard  Co.  v.  Department  of  Interior 1055 

Lundien  v.  United  States .      .        1064 

Lundy  v.  Union  Carbide  Corp 848 

Lupert  v.  California  State  Bar 916 

Luqman  v.  Ohio 1086 

Lusby;  Lawton  v. 805 

Lusby;  T.  G.  &  Y.  Stores,  Inc.  v.     818,1014 

Luther;  Mercer  v.      859 

Luther;  Owens  v.        839,852 

Lutjeharms  v.  Rose 817,1014 

Luxury  Blankets,  Inc.  v.  United  States 849,1015 

Lykes  Brothers  S.S.  Co.;  Adams  v. 840 

Lykes  Brothers  S.S.  Co.;  Castorina  v. 846 

Lyles  v.  Illinois 859 

Lyons;  McCotter  v. 1073 

Mabel;  Euclid  v. 826 

Mabin  v.  Howard  Univ. 922 

MacDonald;  Ortho  Pharmaceutical  Corp.  v .         920 

MacDonald,  Sommer  &  Frates  v.  Yolo  County 917 

Mack  v.  Williams 852 

Madej  v.  Illinois 935,1038 

Madison  County  Comm'rs;  Bezotte  v.      1023 

Madrid  v.  Montelongo 1073 

Maggette  v.  Cook  County  Police  and  Corrections  Merit  Bd.      .      945,1077 


TABLE  OF  CASES  EEPORTED  LXXIX 

Page 

Maggio;  McQueen  v. 852 

Maggio;  Vernon  v. 945,1078 

Maggio;  Williams  v. 1011 

Maggio;  Zeno  v.     1085 

Mahdavi  v.  Shirani 960 

Mahfoud;  Eastern  Air  Lines,  Inc.  v. 213 

Maine;  Campbell  v. 1032 

Maine;  Friel  v. 1032 

Maine;  Maine  State  Troopers  Assn.  v.     802 

Maine;  Marshall  v. 908 

Maine  v.  Moulton 159 

Maine  u  Taylor 943,1047 

Maine;  United  States  v. 808,897 

Maines  v.  Secretary  of  State  of  Me 947 

Maine  State  Troopers  Assn.  v.  Maine      802 

Mainsah  v.  Immigration  and  Naturalization  Service 977 

Mallet  v.  United  States 1062 

Mallonn;  Sheffer  v. 1083 

Malloy  v.  United  States 1009 

Mally  v.  International  Business  Machines 1037 

Mally  v.  New  York  Univ. 1035 

Mandanici  v.  United  States 1082 

Manecke;  School  Bd.  of  Pinellas  County  v. 1062 

Manhattan  Industries,  Inc.  v.  Goldstein 1005 

Manhattan  Industries,  Inc.;  Sweater  Bee  by  Banff,  Ltd.  v. 819 

Manhattan  Life  Corp. ;  London  v. 827 

Mankin  v.  Ohio      825 

Mann,  In  re  917,1099 

Mann  v.  Spiegel 935 

Mann  v.  United  States 1007 

Manson;  Johnson  v. 1063 

Mansour;  Green  v 64,977,1111 

Manzur  v.  McCotter 833 

Marathon  Oil  Co.;  Moses  v. 835 

Marathon  Oil  Co.;  Tenneco  West,  Inc.  v. 845 

Marathon  Petroleum  Co.  v.  United  States 1105 

Marcaccio  u  United  States 1100 

Marcone  v.  Penthouse  International,  Ltd 864,1014 

Marcon,  Ltd.  v.  Helena  Rubinstein,  Inc . .       825 

Maresca  v.  Cuomo     .  .  .  802 

Marin  v.  Department  of  Health  and  Human  Services 1061 

Marin  v   United  States 859 

Marine  Midland  Bank;  Independent  Bankers  Assn.  of  N.  Y.,  Inc.  v.       812 
Mark  v.  Caldwell       .      .  945 


LXXX  TABLE  OF  CASES  REPORTED 

Page 

Marquez;  Chatman  v. 841 

Marrapese  v.  Rhode  Island 921 

Marsh;  Fritz  v. 832 

Marsh  v.  Oregon 997 

Marsh;  Pacyna  v. 1078 

Marshall;  Bankers  &  Shippers  Ins.  Co.  of  N.  Y.  v. 1056 

Marshall  v.  Court  of  Appeals  of  Md 802 

Marshall  v.  Maine 908 

Marshall  Field  &  Co.;  Paskuly  v. 1064 

Martin  v.  Little,  Brown  &  Co 834 

Martin  u  Meese 862 

Martin  v.  Ohio 1073 

Martin;  Praylow  v. 1009 

Martin;  Roach  v. 865,1014 

Martin;  Shahryar  v. 912 

Martin  v.  Two-R  Drilling  Co 849 

Martinez-Torres  v.  United  States 859 

Martinez- Valdez  u  United  States 945 

Martinez- Villareal  v.  Arizona 975 

Martin  Steel  Constructors,  Inc.;  Harvis  Construction,  Inc.  v.    817 

Martin-Trigona,  In  re 1034,1061 

Martin-Trigona  v.  Federal  Communications  Comm'n 1034 

Martin-Trigona  v.  Ferrari 860 

Martorano  v.  United  States 949 

Marty  v.  United  States 1061 

Maryland;  Chaney  v. 1067 

Maryland  v.  ElFadl 811 

Maryland;  Froeman  *o. 860 

Maryland;  Green  v. 1066 

Maryland;  Holsey  u     1004,1066,1077 

Maryland;  Howell  v. 996, 1077 

Maryland;  Johnson  v. 1093 

Maryland  v.  LodowsM 811 

Maryland;  Sellner  v. 1066 

Maryland;  Smith  u 854 

Maryland;  Whittlesey  v. 858,1000 

Maschner;  Smith  v. 996 

Masiello  v.  United  States 996 

Mason  v.  Continental  Group,  Inc ...  1087 

Massachusetts;  Aiello  v.      919 

Massachusetts;  Allied  Bond  &  Collection  Agency  v. 991 

Massachusetts;  Goldman  u 906 

Massachusetts;  Pavilonis  v. 805 

Massachusetts  Citizens  for  Life,  Inc.;  FEC  v. 1049 


TABLE  OF  CASES  REPORTED  LXXXI 

Page 

Massachusetts  Hospital  School  v.  Stock 844 

Massey;  Dunlap  i>. 1063 

Master  Printers  of  America  v.  Brock 818 

Masters  u  Commissioner 907 

Masters  v.  Texas 853 

Mastropieri  v.  United  States 825 

Matecki  -V.  United  States     1009 

Mathis  v.  Kemp     865,1015 

Matrix  Enterprises,  Inc.  v.  Millington  Telephone  Co 903 

Matsushita  Electric  Industrial  Co.  v.  Zenith  Radio  Corp 941 

Mattox  v.  United  States 1050 

Maturo  v.  United  States 1020 

Mauget  v.  Kaiser  Engineers,  Inc 1057 

Mauldin  u  United  States 829 

Max  Daetwyler  Corp.  v.  Meyer 980 

Maxneld;  Sinclair  International  v. 1057 

Maxwell  v.  United  States 818 

May,  In  re 1100 

Mayfield;  Ross  v. 835 

Mayhew;  Caprito  v.    1020 

Mayor  of  D.  C. ;  Currie  v. 1060 

Mayor  of  New  York  City;  Augustyniak  u 840,1015 

Mays  v.  United  States     998 

Mazak  v.  United  States 840,1097 

Mazurkiewicz;  Poli  v. 998 

Mazzella  v.  United  States 1006 

McAfee  v.  McCotter 907 

McAllister  v.  United  States        829,839 

McCallister  v.  United  States 1068 

McClellan;  McSurely  v. 1005 

McCleskey  v.  Kemp 812 

McClintock  u  United  States 822 

McCommon  v.  Mississippi 984 

McConnick  u  Cain     ...             1010 

McCorstin  v.  United  States  Steel  Corp 1008,1097 

McCotter;  Andino  v. .  839 

McCotter;  Butler  v. .  855 

McCotter;  Delespine  v. 906 

McCotter  u  Fransaw       .    .        .            864 

McCotter;  Hernandez  v .  832 

McCotter;  Hicks  v. 952 

McCotter;  Johnson  v      994 

McCotter  v  Jones     . .        .          .            947 

McCotter  v.  Lyons 1073 


LXXXII  TABLE  OF  CASES  REPORTED 

Page 

McCotter;  Manzur  v. 833 

McCotter;  McAfee  v. 907 

McCotter;  Morris  v. 1011 

McCotter  v.  Muniz 934 

McCotter;  Parker  v. 855 

McCotter;  Pinkerton  v. 865,990 

McCotter;  Price  v. 1063 

McCotter;  Prince  v. 1012 

McCotter;  Seaton  v. 836 

McCotter;  Shabazz  <v. 979 

McCotter;  Thomas  u 935,1015 

McCotter;  Tubbs  v.     997 

McCrary  v.  Franklin  State  Bank 949 

McCree;  Lockhart  v. 816 

McCullough;  Texas  u     897 

McDade;  Harrison  v.    1066 

McDonald  v.  Tennessee 951 

McDonnell  Douglas  Corp.;  Islamic  Republic  of  Iran  v. 948 

McDowell  v.  United  States 952 

McEvers;  Cole  v. 995 

McFarland  v.  Bethlehem  Steel  Corp 844 

McGaharan  u  Jago 979 

McGarry;  Coombs  v.    835,1015 

McGee  v.  First  Federal  Savings  &  Loan  Assn.  of  Brunswick 905 

McGiffen  v.  United  States 842 

McGlory  u  Yoka 997,1077 

McGreevy  v.  Dannon  Co 828 

McGuire;  Leahey  u      860 

Mcllhany;  Adams  v. 1101 

McKaba,  In  re 991 

McKague  v.  Nevada 1038 

McKenna  v.  Nevada 1093 

McKenzie  v.  United  States 1086 

McKinney  v.  Ellis 1022 

McKnight  v.  Wainwright      1064 

McLain  v.  Walker 1061 

McLaughlin;  324  Liquor  Corp.  v. 811 

McLaughlin  v.  United  States 944,1003 

McLaughlin;  Yorkshire  Wine  &  Spirits  v. .  811 

McLaurin  v.  Syracuse  Univ.           .            ....              1011 

McLean  Trucking  Co.;  Faison  v 856 

McMackin;  Rodman  v. .    . .    .          1009 

McMackin;  Wilson  v.      1065 

McMahon  v.  Green 819 


TABLE  OF  CASES  REPORTED  LXXXIII 

Page 

McMananiy  -v.  United  States 830 

McMillan  v.  Pennsylvania 815 

McMullen  V.  United  States 829 

McNamara;  Reehlnian  v. 1032 

McQuay  v.  Junction  City     1007 

McQueen  v.  Barton 1085 

McQueen  v.  Maggio 852 

McQueen  v.  U.  S.  District  Court 1064 

McSureley;  Brick  v. 1005 

McSurely  v.  McClellan 1005 

McWherter;  Patterson  v. 854 

Meachum  v.  Worthen  Bank  &  Trust  Co 844 

Mead  v.  United  States 948 

Meadows,  In  re 943 

Meadows  v.  Alabama ....  828 

Meadows  v.  New  York 820 

Mead  Paper  Corp. ;  French  v. 820 

Mead  School  Dist.  No,  354;  Grove  v. 826 

Mearls;  Dunn  v. 821 

Medford;  Medford  Assembly  of  God  v. 1020 

Medford  Assembly  of  God  v.  Medford 1020 

Medina  v.  United  States      948 

Medlin  v.  United  States 862 

Medtronic,  Inc. ;  Cordis  Corp.  v. 851 

Meeker  v.  New  Mexico 845 

Meese;  Corley  v. 837 

Meese;  Martin  v. 862 

Meiri  v.  Dacon 829 

Meloni;  Baron  v. 1058 

Melton;  Zerrnan  v.     845,1026 

Memphis  Community  School  Dist.  v.  Stachura . .  918 

Mendell,  In  re 941 

Men's  Wearhouse,  Inc.  ^.  Helms .            .  804 

Mental  Health  and  Mental  Retardation  Authority;  Wheeler  v.  .        .  824 

Mercer;  Jefferson  v .  831 

Mercer  v.  Luther      ...            . .  859 

Merchants  National  Bank  &  Trust  Co.  of  Indianapolis;  Gaines  v.  .  1030 

Merck  &  Co.;  Par  Pharmaceutical,  Inc.?;.           .      .      .          ....  981 

Merida  v.  United  States .  829 

Meritor  Savings  Bank,  FSB  v.  Vinson     .  .                   .                         .  1047 

Merit  Systems  Protection  Bd.;  Allen  v.  .            .            ...  834 

Merit  Systems  Protection  Bd.;  Stone  v. .  1033 

Merrell  Dow  Pharmaceuticals  Inc.  v  Thompson .  1004 

Merrill  v.  United  States             ...                       .  837 


LXXXIV  TABLE  OF  CASES  REPORTED 

Page 

Merrill  Lynch  &  Co.;  Ceasar  v. 844 

Merrill  Lynch  Relocation  Management,  Inc. ;  Clopper  u 823 

Merwine  v.  Board  of  Trustees  for  State  Insts.  of  Higher  Learning .  823 

Meskill;  Cataldo  v. 916 

Messer  v.  Kemp 1088 

Messerschmitt  Bolkow  Blohm,  GmbH  v.  Walker 812 

Metge  v.  Bankers  Trust  Co 1057 

Metge;  Bankers  Trust  Co.  v.    1072 

Methodist  Hospital  of  Brooklyn  v.  State  Ins.  Fund 801 

Metropolitan  County  Bd.  of  Ed.  of  Nashville  County  v.  Kelley  ....  1083 

Meyer;  Max  Daetwyler  Corp.  v. 980 

Meyer  v.  Oregon 990 

Meyers  Industries,  Inc.  v.  Prill 948,971 

MGPC,  Inc.  v.  Department  of  Energy 823 

Michaels  v.  Michaels 1057 

Michelle  Marie  W.  v.  Riley 1043 

Michigan  v.  Blackburn 811,989 

Michigan  v.  Bladel 810,942 

Michigan;  Carigon  v. 854 

Michigan  v.  Jackson 810,942 

Michigan  v.  Little 1024 

Michigan;  Lovett  v. 1069 

Michigan  Academy  of  Family  Physicians;  Heckler  v. 815 

Mickens  v.  United  States 1104 

Mid-Continent  Bottlers,  Inc.;  Drivers  &  Helpers  v. 947 

Middlesex  Presbyterian  Church;  Presbytery  of  Beaver-Butler  v.     .  887 

Middle  South  Energy,  Inc.;  Ratepayers  Fight  Back  v. 1102 

Midgett;  Sackett-Chicago,  Inc.  v. 909 

Midlantic  National  Bank  v.  N.  J.  Dept.  of  Environmental  Prot 494 

Midwest  Processing  Co.;  Basin  Electric  Power  Cooperative  v. 1083 

Midwife  v.  Director,  State  Department  of  Social  Services    1012 

Midwife  v.  Woods 944 

MihaluJaffe 1030 

Mihal  v.  Sargis 803,1015 

Milburn  v.  United  States 994 

Milford  Radio  Corp.;  PaceUa  v. 844 

Milian-Rodriguez  v.  United  States .  845 

Milkovich;  Lorain  Journal  Co.  v.   898,953 

Miller  v.  Department  of  Health  and  Human  Services 852 

Miller  v.  Dillon ...  857 

Miller  v.  Elrod 951 

Miller  v.  Fenton 104 

Miller  v.  First  Federal  of  Mich 849 

Miller  v.  Henry     824 


TABLE  OF  CASES  REPORTED  LXXXV 

Page 

Miller  v.  Hogg  Brothers  Partnership 1007 

Miller  u  International  Telephone  &  Telegraph  Corp 851,1015 

Miller  u  Los  Angeles 995 

Miller  v.  New  York 951 

Miller  u  United  States 861,994,1037 

Miller  u  Webster 858 

Miller- Wohl  Co.  v.  Commissioner  of  Labor  &  Industry  of  Mont.  .  .  1045 

Milliken;  Blue  Cross  &  Blue  Shield  of  Mich.  v.    805 

Milliken;  Nordgren  u     1032 

Millington  Telephone  Co.;  Matrix  Enterprises,  Inc.  v. 903 

Mills;  Bowring  v. 838 

Mills  v.  United  States 1061 

Mims  v.  United  States     861 

Mine  Workers;  Duquesne  Light  Co.  v. 863 

Mine  Workers  v.  Helen  Mining  Co 1006 

Mine  Workers;  Pierce  u    1104 

Mink;  Republican  Party  of  Haw.  v. 1301 

Minnesota;  Carey  v. 1010 

Minnesota;  Gobley  v. 922 

Minnesota;  Kabanuk  v. 846 

Minnesota;  White  v. 1057 

Minnesota  Comm'r  of  Public  Safety;  Nyflot  v. 1027 

Minnesota  State  Ethical  Practices  Bd.;  National  Rifle  Assn.  v.     . .  1082 

Minnesota  Timber  Producers  Assn.  v.  American  Mut.  Ins.  Co.     . .  .  1059 

Minor  v.  United  States      991 

Mintz  v.  California 980 

Mintzes;  Corbett  v. 1010 

Mir  u  Fosburg 981 

Misleh  v.  United  States     1054 

Mississippi;  Fairley  v.  . .                    855 

Mississippi;  Green  v               .                    979 

Mississippi;  McCommon  v.                 .          .  .          .  984 

Mississippi;  Moreno  v      .    .    .                              .                    949 

Mississippi;  Nickens  u         .              1104 

Mississippi;  Page  v. 950 

Mississippi  River  Bridge  Authority;  Anschuetz  &  Co.  v.  .    .              .  812 

Mississippi  State  Bar  Assn.;  Sanders  v.  .            ...              844 

Missouri  v.  Blair          1049 

Missouri;  Grady  v.                   .  .              ....  951 

Missouri;  Pepper  v.                   .                    ...          .          ....  830 

Missouri;  Ross  v.  .             .  .           .                 .  .               1066 

Missouri;  Thomas  v.                ...  842 

Missouri  State  Highway  Patrol;  EEOC  v. 828 

Mitchell;  Ausley  v.          .  .            1100 


LXXXVI  TABLE  OF  CASES  REPORTED 

Page 

Mitchell  v.  Davis  949 

Mitchell;  Etheridge  v. 1019,1111 

Mitchell  v.  United  States 839,983,1066 

Mitchell  Bros.  Santa  Ana  Theater;  California  ex  rel.  Cooper  v.  .    948,1077 

Mitsui  &  Co.  (U.S.A.)  v.  Western  Concrete  Structures  Co 903 

Mobil  Oil  Corp.;  Typhoon  Car  Wash,  Inc.  v. 981 

Mock  v.  United  States 838 

Modine  Mfg.  Co.  v.  Environmental  Protection  Agency 1005 

Moeller  v.  Carradine 804 

Moffitt  v.  United  States 1013 

Monarch  Long  Beach  Corp.  v.  Soft  Drink  Workers     1020 

Monarch  Long  Beach  Corp. ;  Soft  Drink  Workers  v. 1020 

Monfort  of  Colo.,  Inc.;  Cargill,  Inc.  u   1031,1049 

Monick  v.  United  States 817 

Monon  Shippers  Assn. ,  Inc.  v.  Interstate  Commerce  Comm'ij 828 

Monroe;  Levitt  v. 1034 

Montana  v.  Hodel 919 

Montana;  Smith  v. 1073 

Montelongo;  Madrid  v. 1073 

Montgomery  v.  Alabama 904 

Montgomery  v.  United  States 979 

Montgomery  County;  Fudger  v. 947 

Montgomery  County  Dept.  of  Parole  and  Probations;  Simons  v.       .  979 

Montgomery  County  Dept.  of  Police;  Simons  v. 1054 

Montgomery  Ward  &  Co.  v.  Dabney 904 

Moore,  In  re 916 

Moore;  Boating  Industry  Assns.  v. 895 

Moore  v.  Bonner 827 

Moore;  Des  Moines  v. 1060 

Moore  v.  Indiana       1026 

Moore  v.  Lavicky 1101 

Moore  v.  Orner,  Shayne  &  Reizner,  Inc 906 

Moore  v.  Rice 983 

Moore  u  Texas 1113 

Moore  u  United  States 979 

Mora  v.  United  States 1083 

Moran;  Hudson  v. 981 

Moran  v.  Pima  County 989 

Moran  v.  United  States 1102 

Moreland  v.  Poss     807 

Moreno  v.  Mississippi 949 

Moreno-Sevano  v.  United  States 838 

Morgan  v.  Firestone  Tire  &  Rubber  Co 843 

Morgan  Adhesives  Co.  v.  Chemtrol  Adhesives,  Inc 843 


TABLE  OF  CASES  REPORTED  LXXXVH 

Page 

Morganstern  v.  United  States 1033 

Morlan  v.  United  States 837 

Morris;  Aldridge  v. 1062 

Morris;  Barker  u 1063 

Morris;  Brofford  v.    872,1000 

Morris;  Fulsom  v.   952 

Morris;  Goudlock  v. 979 

Morris  v.  Illinois 866 

Morris;  Leroy  v. 831 

Morris  v.  McCotter 1011 

Morris;  Provens  v. 865 

Morris;  Turner  v. 906 

Morrison  v.  Federal  Deposit  Ins.  Corp 1019 

Morrison;  Kimmelman  v.     815,917 

Morrison  Assurance  Co.;  Preston  Carroll  Co.  u    1060 

Morse/Diesel,  Inc.;  Key  International  Mfg.,  Inc.  u 1039,1078 

Morton  u  California 1060 

Moses  v.  Marathon  Oil  Co 835 

Moss  v.  Commissioner 979 

Mother  Goose  Nursery  Schools,  Inc.  v.  Sendak 1102 

Motor  Vehicle  Mfrs.  Assn.  of  U.  S.,  Inc.;  American  Methyl  Corp.  v.     1082 

Motta  u  Samuel  Weiser,  Inc 1033 

Mottaz;  United  States  v.      994,1099 

Moulton;  Maine  v.      .         159 

Moyer  v.  District  Director  of  Internal  Revenue  Service       1103 

Mueller,  In  re 1044 

Mueller  v.  Dieball 864 

Mueller  v.  Pevsner     .  .        .          ...  ....  .         846 

Muhammad  v.  Semicole  Allied  Van  Lines 1103 

Muhammad  v.  United  States          .          .      .  858,981,1085 

Muka  v.  Carter .  895,1027 

Mullady  v.  Smith     .  949 

Mullen  v.  Skinner  .  .      .  980 

Mullins  v.  Newsome  .  ....       1069 

Mulvey  v.  Pennsylvania         ...  994 

Muncy;  Jefferson  v.     .    .  .  ...       997 

Mundy;  Gans  v  .  .       1010 

Municipal  Court  of  Cal.,  Los  Angeles  County;  Aleem  v.  .    .  832 

Muniz;  McCotter  v.     .  .  .  .  .  934 

Munro  v.  Socialist  Workers  Party  .      1049 

Muriel  v.  United  States  .  ...     1013 

Murray  City;  Potter  v. .  .  849 

Musicant  v.  Terry   .  .  .  856 

Mustacchio  v.  United  States  .  .  .  .  906 


LXXXVHI  TABLE  OF  CASES  REPORTED 

Page 

Muth  v.  Showers 1008 

M/V  Capt.  W.  D.  Cargill;  Pacific  Employers  Ins.  Co.  v.   909 

M.V.  "Nedlloyd  Rotterdam";  Binladen  BSB  Landscaping  v. 902 

Myers;  Alcoa  v. 811,901 

Myrick  v.  Petsock 1067 

Nabors  u  United  States 851,1077 

Naegele  Outdoor  Advertising  Co.;  California  Dept.  of  Transp.  v.  . .  1003 

Naegele  Outdoor  Advertising  Co.;  Desert  Outdoor  Advertising  v.  1003 

Nags  Head;  R.  O.  Givens  Signs,  Inc.  v. 826 

Namenwirth  v.  Board  of  Regents  of  Univ.  of  Wis.  System 1061 

Nantahala  Power  &  Light  Co.  v.  Thornburg 1018 

Napolitano  v.  United  States 842 

Nash,  In  re 1030 

Nassau  County  Dept.  of  Social  Services;  Blake  v. 862 

National  Director  of  Veteran's  Administration;  Woodside  v. 851 

National  Distillers  &  Chemical  Corp.  v.  Pratt 849 

National  Elevator  Industry,  Inc.;  Elevator  Constructors  v. 819 

National  Freight,  Inc.  v.  Larson 902 

National  Freight,  Inc.  v.  United  States 1105 

National  Labor  Relations  Bd.;  Allbritton  Communications  Co.  v.  . .  1081 

National  Labor  Relations  Bd.;  Allen  u 1101 

National  Labor  Relations  Bd.;  Clear  Pine  Mouldings,  Inc.  v. 1105 

National  Labor  Relations  Bd.;  Ohio  New  &  Rebuilt  Parts,  Inc.  v.  1020 

National  Labor  Relations  Bd.;  Truck  Drivers  v. 901 

National  Rifle  Assn.  v.  Minnesota  State  Ethical  Practices  Bd 1082 

Natural  Footwear  Ltd.;  Hart  Schaffiier  &  Marx  v. 920 

Natural  Gas  Pipeline  Co.  v.  Federal  Energy  Regulatory  Comm'n  . .  1056 

Nazarian  v.  Nazarian 1007 

Neal  u  Texas 818 

Nebraska;  South  Dakota  v. 941 

Negrito  Comercial,  S.A.  v.  Sea-Land  Service,  Inc 1033 

Nelson  v.  Pleasant  Grove  City  Corp 936 

Nethery  u  Texas 1110 

Network  Video;  New  York  v. 918 

Neumann  v.  United  States 861 

Nevada;  McKague  v. 1038 

Nevada;  McKenna  v. 1093 

Nevada;  New  Jersey  v. 917,1045 

Nevada;  Smith  v. 1104 

New;  Western  Reserve  Oil  &  Gas  Co.  u 1056 

Newblatt;  Hassain  v. 836 

New  Boston;  Raskiewicz  v. 845 

Newby  v.  Department  of  Labor 898 

New  England  Medical  Center  Inc.;  Penza  v. 802 


TABLE  OF  CASES  BEPORTED  LXXXIX 

Page 

New  Jersey;  Helfricht  u 807,1008 

New  Jersey  v.  Nevada 917,1045 

New  Jersey;  Petrillo  v. 922 

New  Jersey;  Smith  v. 820 

New  Jersey  Dept.  of  Environmental  Prot. ;  Midlantic  Nat.  Bk.  v.  .  .  494 

New  Jersey  Dept.  of  Environmental  Prot. ;  O'Neill  v. 494 

New  Jersey  Racing  Comm'n;  Lepman  v.     996 

New  Jersey  Zinc  Co.;  El  Cid,  Ltd.  v. 1021 

Newman  v.  Bakko 833 

New  Mexico;  Doe  v.    1063 

New  Mexico  v.  Earnest 918 

New  Mexico;  Meeker  u     845 

New  Mexico;  Pascarella  v. 994 

New  Mexico;  Wiggins  v. 831 

New  Motor  Vehicle  Bd.;  Wilmshurst  v. 936 

New  Orleans  Dept.  of  Police;  Bruno  v. 805 

New  Orleans  Electrical  Pension  and  Retirement  Plan;  Joseph  v. . .  .  1006 

Newsome;  Brown  v.    982 

Newsome;  Mullins  v. 1069 

Newspapers,  Inc.;  Certain  Unnamed  Prospective  Defendants  v.    .  1061 

New  York;  Abdullah  v. 919 

New  York;  Bock  -v. 996 

New  York;  Brand  v. 828 

New  York;  Brown  v.    855 

New  York  v.  Class 809,1031 

New  York;  Foster  u 857 

New  York;  Fuentes  v. 906 

New  York;  Gordon  u 1009 

New  York;  Isaraphanich  v. 858 

New  York;  Lipsman  v.        1066 

New  York;  Lucas  v.      ...                  911 

New  York;  Meadows  v .  .  820 

New  York;  Miller  v.    .              ....  951 

New  York  v.  Network  Video  .    .              918 

New  York;  Petty  v.  .    .  .             .    .               1064 

New  York;  Pitt  v. .    .                ....  922 

New  York  v.  P.  J.  Video,  Inc.  .            918 

New  York;  Richards  v.  .      .  .              1066 

New  York;  Sailor  u 982 

New  York;  Whitaker  u                  .                  830 

New  York  City;  Adventurers  Whitestone  Corp.  v.    .  .  935 

New  York  City;  Grumman  Ohio  Corp.  v.            .          . .  1081 

New  York  City;  Heckler  v.                 815 

New  York  City;  O'Neill  v.     .                        494 


XC  TABLE  OF  CASES  REPORTED 

Page 

New  York  City  Health  and  Hospitals  Corp.;  Carrion  u 842,1015 

New  York  Council  Assn.  of  Civilian  Technicians  v.  FLRA 846 

New  York  Marine  Managers,  Inc.  v.  Helena  Marine  Services 850 

New  York  State  Court  Officers  Assn.;  Johnson  v. 855,1000 

New  York  State  Dept.  of  Health;  Farkas  v.     1033 

New  York  State  Dept.  of  Transportation;  Rothman  v. 1032 

New  York  State  Liquor  Auth. ;  Brown-Forman  Dists.  v.    814,977, 1079, 1099 

New  York  State  Nurses  Assn.  v.  St.  Joseph's  Hospital 827 

New  York  Telephone;  Whigham  v 1011 

New  York  Telephone  Co.;  Cicirello  v. 823 

New  York  Univ.;  Mally  u 1035 

Niagara  Frontier  Tariff  Bureau;  Square  D  Co.  v. 815,1017,1080 

Nichols  v.  Texas 1034 

Nickels;  Bernard  v 1065 

Nickens  v.  Mississippi 1104 

Nickson  Industries,  Inc.;  Rol  Mfg.  Co.  v. 843 

Nilson  Van  &  Storage  v.  United  States 818 

Noble  V.  United  States 818 

Nokes  v.  United  States 827 

Nordgren  u  Milliken 1032 

North  American  Reporting,  Inc.  u  United  States 905 

North  Carolina;  Fuller  v. 1065 

North  Carolina;  Smith  v.     1026 

North  Carolina  Dept.  of  Human  Resources;  Turner  v. 1011,1111 

North  Carolina  Dept.  of  Transp.  v.  Crest  Street  Community  Council  1049 

North  Carolina  State  Bar;  Sheffield  v.     981 

Northeastern  International  Airways  v.  Florida  Dept.  of  Revenue .  .  891 

Northeast  Regional  Parole  Comm'n;  Di  Napoli  v. 1020 

Northern  Assurance  Co.  of  America;  Burriss  v.      821 

Northern  Cal.  Retail  Clerks  Union  &  Food  Employers  Joint  Pen- 
sion Trust  Fund  v.  Award  Service,  Inc 1081 

Northern  Oil  Co.  u  Standard  Oil  Co.  of  Cal 821 

North  Miss.  Savings  &  Loan  Assn.;  Hudspeth  v. 1054 

North  Side  Lumber  Co.  v.  Block 931 

Northwest  Central  Pipeline  Corp.  v.  Corporation  Comm'n  of  Kan.  812 

Norton  u  Illinois  . .          803 

Norwood  v.  INA  Life  Ins.  Co 1059 

Nottingham  u  United  States 854 

N.  P.,  In  re 976 

Nyflot  u  Minnesota  Comm'r  of  Public  Safety 1027 

Oates  v.  United  States 857 

Oats  v.  Florida .  .  865 

Obad;  American  S.S.  Co.  v. . .  848 

O'Boyle,  In  re 896,1030 


TABLE  OF  CASES  REPORTED  xci 

Page 

O'Brien;  Eubanks  v.   904 

O'Brien;  Fay  v. 854 

Observer  Transportation  Co.;  Blackmon  v. 864 

Occidental  Oil  Shale,  Inc.  v.  State  Bd.  of  Land  Comm'rs  of  Colo.  .  .  817 

Oceanic  Trade  Alliance  Coun.  Int'l;  All  American  Life  &  Cas.  Co.  v.  819 

Oceanport;  Pietroniro  v. 1020 

Oehoa  v.  Lennon 979 

O'Connor  v.  Ortega 1018, 1048 

O'Connor;  Treasury  Employees  v. 909 

O'Connor  v.  United  States 1050 

O'Dell,  In  re 1112 

Odinga  v.  United  States 841 

Oettinger  v.  Oettinger 912 

O'Farrell;  Porter  v. 825 

Office  of  Personnel  Management;  Bronger  v. 1101 

Office  of  Personnel  Management;  Ginnodo  v. 848 

Offshore  Logistics,  Inc.  v.  Tallentire 816,1003,1017 

Ogberaha  v.  United  States 1103 

Oglala  Sioux  Tribe  v.  South  Dakota 1102 

Ohio  v.  Akron  Airport  Post  No.  8975 1058 

Ohio;  Calhoun  v. 983 

Ohio;  Elliott  v.   1058 

Ohio;  Hunt  v.    840 

Ohio;  Italiano  v. 904 

Ohio;  Lewingdon  v. 982 

Ohio;  Luqrnan  v. 1086 

Ohio;  Mankin  v. 825 

Ohio;  Martin  v. 1073 

Ohio;  Patterson  v. 860,1010 

Ohio;  Pointer  v.      908 

Ohio;  Rogers  v. 1002 

Ohio;  Welch  v. 907,1010 

Ohio  Civil  Rights  Comrn'n  v.  Dayton  Christian  Schools,  Inc 978 

Ohio  Dept.  of  Justice;  Campbell  v. 840,990 

Ohio  High  School  Athletic  Assn.;  Zeiler  v. 818 

Ohio  Liquor  Control  Comm'n;  Haddix  v. 997,1077 

Ohio  New  &  Rebuilt  Parts,  Inc.  v.  National  Labor  Relations  Bd.     .  1020 

Ohle  -y.  Pennsylvania 1083 

Oil  Workers;  American  Petrofina  Co.  of  Tex.  v. 943 

O'Kane  v.  Ford  Motor  Co 888 

O'Keefe;  Taylor  u       888 

Okello  v.  Department  of  Health  and  Human  Services  .          1036 

Oklahoma;  Bewley  v.      829 

Oklahoma;  Cartwright  u     1073 


xcn  TABLE  OF  CASES  REPORTED 

Page 

Oklahoma;  Cooks  u 935 

Oklahoma;  Hatch  u 1073 

Oklahoma;  Jackson  v.  838 

Oklahoma;  Lightsey  v. 841,1000 

Oklahoma;  Shabazz  u 1068 

Oklahoma;  Stafford  v. 865 

Oklahoma;  Villanueva  v. 901 

Olinger  v.  United  States 839 

Oliva  v.  United  States 1068 

Olympic  Sports  Products,  Inc.;  Whittaker  Corp.  v. 1060 

Omaha;  Smith  v. 1068 

Oman  v.  H.  K.  Porter  Co 970 

On-Deck,  Inc.  v.  Rostad 1006 

Oneida  Indian  Nation  v.  Houdenosaunee 823 

O'Neil  v.  Florida 861 

O'Neill  v.  New  Jersey  Dept.  of  Environmental  Protection 494 

O'Neill  v.  New  York  City 494 

Opelousas  Housing  Authority;  Cunningham  u 1007 

Operating  Engineers  v.  Pennsylvania 1060 

Oregon;  Cameron  u 1069 

Oregon;  Marsh  v. 997 

Oregon;  Meyer  v. 990 

Oregon  Workers'  Compensation  Bd.;  Reed  v. 842 

Orner,  Shayne  &  Reizner,  Inc.;  Moore  v. 906 

Ornsbey  v.  Tulare 842 

Orr;  Gillis  v.   908 

Ortega;  O'Connor  v. 1018,1048 

Ortho  Pharmaceutical  Corp.  v.  MacDonald 920 

Otis  v.  Sears,  Roebuck  &  Co 854 

Owen  v.  Judge  of  County  Court,  Schenectady  County 994 

Owens  u  Baer 842 

Owens  v.  Bourns,  Inc 1038 

Owens;  Bowen  v. 1046 

Owens  v.  Freeman 838,990 

Owens;  Heckler  u 899 

Owens  u  Luther 839,852 

Owens  v.  Ryan 1064 

Owens  v.  United  States 857,990,1085 

Owners  of  Ridgecrest  Mobile  Home  Park;  Calver  v. 1105 

Ozark  Air  Lines,  Inc.  v.  Air  Line  Pilots  Assn 903 

P.,  In  re 976 

Pacella  v.  Milford  Radio  Corp 844 

Pacella  u  Radio  Station  WMRC 844 

Pacific  Care  Center,  Inc.;  St.  Joseph's  Hill  Infirmary,  Inc.  v. 801 


TABLE  OF  CASES  REPORTED  xcra 

Page 

Pacific  Employers  Ins.  Co.  v.  M/V  Capt.  W,  D.  Cargill 909 

Pacific  Intermountain  Express  Co.;  Springston  v. 1023 

Pacyna  v.  Marsh 1078 

Padron  v.  United  States 855 

Page  v.  Mississippi 950 

Painter  v.  Alaska 990 

Pak-Mor  Mfg.  Co.  v.  Jones 948 

Palazzo  v.  Gulf  Oil  Co 1058 

Pallett,  In  re 814,943 

Palmer  v.  Seattle 828 

Palo  Alto;  Court  House  Plaza  Co,  v. 945,1077 

Pan  American  World  Airways,  Inc.  v.  Cook 1109 

Pando  v.  United  States 831 

Papasan  v.  Allain 1004 

Papasan;  Daniels  v. 996 

Pappanikolaou  v.  Administrator  of  Veterans  Administration 851 

Pappanikolaou  v.  Secretary  of  Army 949 

Pappy,  Kaplon,  Vogel  &  Phillips  v.  Aragon 1054 

Papse  v.  United  States 861 

Paralyzed  Veterans  of  America;  Department  of  Transportation  v.    918,992 
Parish.     See  name  of  parish. 

Park  v.  El  Paso  Bd.  of  Realtors 1102 

Park  County  Resource  Council,  Inc.  v.  Department  of  Agriculture .  807 

Parker;  Bruner  v. 827 

Parker  v.  Fairman 1066 

Parker;  Hamm  v. 1103 

Parker  u  McCotter 855 

Parks  v.  Belletire 918 

Par  Pharmaceutical,  Inc.  v.  Merck  &  Co 981 

Parra  v.  California 1023 

Parrish,  In  re    943 

Parsons  Steel,  Inc.  v.  First  Ala.  Bank 518 

Parton;  Wyrick  v.        995 

Pascarella  u  New  Mexico 994 

Pasco  v.  Immigration  and  Naturalization  Service 1033 

Pascua  Yaqui  Tribe;  Val/Del,  Inc.  v. 920 

Pascuel-Soler  v.  United  States 953 

Paskuly  v.  Marshall  Field  &  Co 1064 

Patchett  v.  Patchett 850 

Patel  v.  Flying  Tiger  Line,  Inc 947 

Patrascu,  In  re 1100 

Patten  v.  Florida  .            876 

Patterson  u  Buena  Vista  Distribution  Co 1013 

Patterson;  Coughlin  v. 1100 


XCIV  TABLE  OF  CASES  REPORTED 

Page 

Patterson  u  Georgia  Theatre  Co 1024 

Patterson  u  McWherter 864 

Patterson  u  Ohio 860,1010 

Patterson  v.  United  States 830 

Paul  v.  United  States 1019 

Paulussen  u  Herion 899,1017,1031,1047 

Pautz  v.  Wisconsin  Dept.  of  Industry,  Labor  &  Human  Relations  . .     1022 

Pavilonis  v.  Massachusetts 805 

Payne;  Block  v. 815,942 

Payne  v.  Coughlin 861,1054 

Peacock  v.  United  States 847 

Pearson;  Bulloch  v.  1048,1086 

Peil  v.  Sporck 903 

Pelino,  Wasserstrom,  Chucas  &  Monteverde,  P.  C.  v.  Eisenberg  . .       946 

PeUetier  v.  United  States 983 

Perm  Central  Corp.;  Pinney  Dock  &  Transport  Co.  v. 1033 

Pennington  v.  Flota  Mercante  Grancolombiana,  S.A 1057 

Pennsylvania;  Allen  v. 842 

Pennsylvania;  Caswell  v. 1024 

Pennsylvania;  Cortez  v. 950 

Pennsylvania  v.  Delaware  Valley  Citizens'  Council 815,819,1047 

Pennsylvania  v.  Goldhammer 28 

Pennsylvania;  Hancharik  v. 819 

Pennsylvania;  lannaccio  v. 830 

Pennsylvania;  Korb  v. 831 

Pennsylvania;  McMillan  v. 815 

Pennsylvania;  Mulvey  v.    994 

Pennsylvania;  Ohle  u 1083 

Pennsylvania;  Operating  Engineers  v.   1060 

Pennsylvania;  Radogna  v.   837 

Pennsylvania;  Smalis  v.   944,1047 

Pennsylvania;  Unangst  v. 837 

Pennsylvania;  Wivorkoski  v. 822 

Pennsylvania;  Wood  v. 1012 

Pennsylvania  Bureau  of  Correction  v.  U.  S.  Marshals  Service 34 

Pennzoil  Co.  u  Associated  Gas  Distributors 847 

Pennzoil  Co.  v.  Public  Service  Comm'n  of  W.  Va 822 

Penry  v.  Texas 1073 

Pension  Benefit  Guaranty  Corp. ;  Connolly  v. 810 

Pension  Benefit  Guaranty  Corp. ;  Woodward  Sand  Co.  v. 810 

Penthouse  International,  Ltd.;  Marcone  v.       864,1014 

Penza  v.  New  England  Medical  Center  Inc 802 

Pepper  u  Missouri 830 

Perez  v.  Illinois 1110 


OF  CASES  REPORTED  xcv 

Page 

Pernianente  Medical  Group;  Fein  u   892 

Pernsley  v.  Harris 965 

Perpignand  v.  United  States 1063 

Perruzza  v.  Los  Angeles  County 936 

Pescosolido  v.  Secretary  of  Agriculture 1098 

Pesner,  In  re  1016 

Peters  u  California 804 

Peterson  v.  Air  Line  Pilots  Assn 946 

Peterson  v.  United  States 923 

Petrillo  v.  New  Jersey 922 

Petsock;  Gay  V, 951 

Petsock;  Karabin  v. 857 

Petsock;  Myrick  v. 1067 

Petsock;  Sakal  v.  855 

Pettit;  Brady  u    845 

Pettit  v.  United  States 1012 

Petty  v.  New  York 1064 

Pevsner;  Mueller  v. 846 

Pfeil  v.  Rogers 812 

Pfluger  v.  Illinois  Dept.  of  Revenue 848 

Pfluger  v.  Internal  Revenue  Service 824 

Phelps,  In  re 917,1043 

Phelps  u  Duckworth 1011 

Phelps;  Hooks  v. 1068 

Phelps  v.  Sovran  Bank 858,1015 

Phelps;  Williams  v.     951 

Philadelphia  v.  Glassboro 1008 

Philadelphia  Electric  Co.  v.  Hercules  Inc 980 

Philadelphia  Electric  Co.  v.  United  States 1105 

Philadelphia  Gear  Corp.;  Federal  Deposit  Ins.  Corp.  u    918 

Philadelphia  Resins  Corp.;  Fidelity  &  Casualty  Co,  u 1082 

Philbrook;  Ansonia  Bd.  of  Ed.  v. 1080 

Phillips;  Kaplus  u       1059 

Phillips  v.  Lombardi     ...            861 

Karowski  v.  Illinois  Community  Coll.  Dist.  515,  Prairie  State  Coll.  1007 

Pickard  v.  Ajigelone  .     .        .  .          922 

Pierce  v.  Mine  Workers  .  .            1104 

Pierce  County;  Brock  v.       944,1046,1099 

Pierce  County  Medical  Bureau;  Leone  v. 1057 

Pietroniro  v.  Oceanport 1020 

Piggy  Bank  Stations,  Inc.  u  Commissioner 843 

Pilato;  Kwang-Wei  Han  v. 1056 

Pima  County;  Moran  v. 989 

Pima  County  Superior  Court;  Stamps  v. 1035 


xcvi  TABLE  OF  CASES  REPORTED 

Page 

Pinckard  u  United  States 949 

Pine  Hill  Civic  Club,  Inc.  v.  DeKalb  County 892 

Pinkerton  v.  McCotter 865,990 

Pinney  Dock  &  Transport  Co.  v.  Perm  Central  Corp 1033 

Pioneer  Rural  Electric  Cooperative,  Inc.;  Dowty  v. 1021 

Pitt  u  New  York 922 

Pittman  v.  Black 982 

Pitts  u  Lockhart 982 

Pittsburgh;  Smith  v. 950 

Pittsburgh  &  Lake  Erie  R.  Co.  v.  Humphries 863 

Pittsburgh  Terminal  Corp.  v.  Baltimore  &  Ohio  R.  Co 919 

P.  J.  Video,  Inc.;  New  York  v. 918 

Placer  Savings  &  Loan  Assn.;  Frazier  v. 1035 

Plaintiff  Class  Reps.,  Corn  Deriv.  Antitr.  Litig.;  Koerner  &  Co.  v.  1057 

Pleasant  Grove  City  Corp.;  Nelson  v. 936 

Pleasant  View  Elementary  School  PTA  v.  Group  I  Defendants 1021 

Plummer  v.  Aman 1058 

Poff;  Amend  v. 849 

Pointer  v.  Ohio 908 

Poland  v.  Arizona 816,943 

Poll  v.  Mazurkiewicz 998 

Polo  Fashions,  Inc.  v.  Stock  Buyers  International,  Inc 1018 

Pompano  Beach  u  Capalbo 824,1000 

Poole  v.  United  States 1067 

Poquiz  t;.  Department  of  Transportation 952 

Port  Authority  of  N.  Y.;  Lewis  v. 944 

Porter  <v.  O'Farrell 825 

Porter  Co. ;  Oman  v.  970 

Posadas  de  Puerto  Rico  Assoc.  v.  Tourism  Co.  of  P.  R.    917,1031,1046,1079 

Poss;  Moreland  v. 807 

Postal  Workers;  Jones  v. 1003 

Postal  Workers  v.  U.  S.  Postal  Service 1055 

Postmaster  General;  Burden  v. 1012 

Potomac  Hospital  Corp.;  Dillon  v. 971 

Potter  v.  Murray  City 849 

Powell  u  United  States 981 

Poyner  v.  Virginia 865,888 

Pratt;  National  Distillers  &  Chemical  Corp.  v. 849 

Praylow  v.  Martin 1009 

Preferred  Communications,  Inc.;  Los  Angeles  v.  . .    .     979,1048,1080,1099 

Prenzler  u  Dean  Forwarding  Co 990 

Prenzler  v.  Reynolds 804 

Presbytery  of  Beaver-Butler  v.  Middlesex  Presbyterian  Church      .  887 

President  of  United  States;  Arnold  v. 835 


TABLE  OF  CASES  EEPORTED  xcvu 

Page 

President  of  United  States;  Government  Employees  v. 1001 

President  of  United  States;  Raine  v.    853 

Press-Enterprise  Co.  v.  Superior  Court  of  Cal.,  Riverside  Cty.     899,1017 

Pressley  v.  Florida 982 

Preston  u  Texas 982 

Preston  Carroll  Co.  v.  Morrison  Assurance  Co 1060 

Preuit  &  Mauldin  v.  Jones 1105 

Prevatte  v.  Gibson 918 

Prewitt  v.  United  States 952 

Prewitt  v.  U,  S.  Postal  Service 813 

Price  v.  McCotter       1063 

Price  v.  Whitmer 828 

Prieber;  Vizbaras  v.   1101 

Prill;  Meyers  Industries,  Inc.  v. 948,971 

Prince  v.  McCotter 1012 

Prince  Mfg. ,  Inc.;  Lombard's  Inc.  v.    1082 

Prisoner  Review  Bd.;  Walker  v. 1065 

Pritchard  u  United  States 1085 

Program  Engineering,  Inc.  v.  California  Jockey  Club 1007 

Progressive  Casualty  Ins.  Co. ;  Awrey  v. 920 

Provens  v.  Morris     865 

Provenzano  v.  United  States 949 

Prudential-Bache  Securities;  Zerman  v. 845,1026 

Prudential-Bache  Securities  Inc.  v.  Angelastro 935 

Prudential  Federal  Savings  &  Loan  Assn.  v.  EEOC 946 

Prudential  Lines,  Inc.;  Sklut  Hide  &  Furs  V. 824 

Pruessner  v.  Benton 1033 

Pruitt  u  United  States    1084 

PSFS  Savings  Bank,  FSB  v.  Vinson 815 

Public  Agencies  Opposed  to  Social  Security  Entrapment;  Heckler  v.  1004 

Public  Employees  v.  Commercial  Property  Services,  Inc 850 

Public  Service  Comrn'n  of  Ind.,  Inc.  v.  ICC 909 

Public  Service  Cornm'n  of  Md.  v.  Chesapeake  &  Potomac  Tel.  Co.  942 

Public  Service  Comrn'n  of  W.  Va.;  Pennzoil  Co.  v. 822 

Public  Service  Co.  of  Colo.  v.  FERC         1081 

Public  Utilities  Comm'n  of  Ohio  v.  FCC 809,1002 

Puerto  Rico  Marine  Management;  Insurance  Co.  of  North  America  v.  1102 

Pugh  v.  Florida 847 

Pursue  Energy  Corp.  v.  Berry        828 

Quan  Young  v.  Immigration  and  Naturalization  Service     996 

Quick  v.  California  .          823 

Quiller  v.  Barclays  American/Credit,  Inc 1031 

Quiller;  Barclays  American/Credit,  Inc.  u 1031 

Quinault  Indian  Nation  v.  Washington     1100 


xcvm  TABLE  OF  CASES  REPORTED 

Page 

Quinn  v.  United  States 817 

Quinn;  United  States  v.  900 

Quivira  Mining  Co.  v.  Environmental  Protection  Agency 1055 

R.  v.  Florida 1011 

Rabon  v.  Bryan  County  Bd.  of  Ed 855 

Rader  v.  Wisconsin  Bd.  of  Attorneys  Professional  Responsibility     .  820 

Radio  Corp.  of  America;  Howard  v. 907 

Radio  Station  WRMC;  Pacella  v. 844 

Radogna  v.  Pennsylvania 837 

Ragin  v.  United  States 839 

Railway  Labor  Executives'  Assn.;  Dole  v. 1099 

Raine  v.  Reagan 853 

Raines;  Boag  v. 1085 

Ramie  v.  Hedwig  Village 1062 

Ramirez  v.  California 1043 

Ramsey  v.  United  States 1082 

Randall  v.  Kelleher 840 

Randall  v.  Lof  tsgaarden 978 

Randell  v.  United  States 1008 

Randies  v.  United  States 994 

Raphan  v.  United  States 843 

Rapides  Parish  School  Bd. ;  Hammond  v. 829 

Raske  v.  Jorandby 802 

Raskiewicz  u  New  Boston 845 

Raspaldo  v.  Carver 853 

Rasullah  v.  Henderson        841 

Ratcliff,  In  re 814 

Ratepayers  Fight  Back  v.  Middle  South  Energy,  Inc 1102 

Ratner;  Glenwood  T.V.,  Inc.  v. 916 

Ratner  v.  Superior  Court  of  Cal. ,  San  Bernardino  County 834 

Rayburn  Dam  Electric  Cooperative  v.  United  States 890 

Rayl;  Wilson  v. 831 

Rayner  v.  United  States 851 

Razzano  v.  Dunlop  Tire  &  Rubber  Co 948 

Reading  Co.  u  Schweitzer 864 

Reagan;  Arnold  v. 835 

Reagan;  Government  Employees  v. 1001 

Reagan;  Raine  v. 853 

Reagan  Administration;  Boykin  v. 921 

Red  Bluff;  Caylor  v. 1037 

Redco  Corp.  v.  CBS,  Inc 843 

Reddick  v.  Connecticut 1067 

Redic  v.  Schwartz .  920 

Reed;  Burton  u 949,1077 


TABLE  OF  CASES  EEPOETED  xcix 

Page 

Reed  v.  Campbell 1018 

Reed;  Ivy  v.  1067 

Reed  v.  Oregon  Workers'  Compensation  Bd 842 

Reed  v.  Terrell 946 

Reed  v.  United  States 836 

Reed  v.  Wainwright 950 

Reehlman  v.  McNamara 1032 

Rees;  Buchanan  v. 1010 

Rees;  Kirk  u 838 

Rees;  Wilson  v. 944 

Reeves  i>.  Bowen 1064 

Reeves  -y.  United  States 834 

Regents  of  Univ.  of  Mich.  v.  Ewing 214,810,1017 

Reichenbach;  Lassiter-Geers  v. 1019 

Reid  v.  Gholson  824,1014 

Reid  v.  United  States 1104 

Reliance  Ins.  Co.;  Hatch  v. 1021,1048 

Reliance  Universal,  Inc. ;  EWP  Corp.  v.     843 

Remigio  v.  United  States 1009 

Remmenga  v.  California  Coastal  Cornm'n 915,1027 

Republican  Party  of  Conn.;  Tashjian  v.   1049 

Republican  Party  of  Haw.  v.  Mink 1301 

Retina  Consultants,  P.  C.;  Eoussos  u 803,895 

Revels  v.  United  States 908 

Rex;  Johnson  v. 967 

Reyes  v.  United  States 857 

Reynolds  v.  Florida 980 

Reynolds;  Prenzler  v. 804 

Reynolds  Metals  Co. ;  Ad  Hoc  Committee  for  Akwesasne  Rights  v.  1021 

Rhode  Island;  Griffin  v. 845 

Rhode  Island;  Hughes  v. 1009 

Rhode  Island;  Marrapese  -v. 921 

Rhodes  v.  Board  of  Ed.  of  Chama  Valley  Independent  School  Dist.  802 

Rhodes  v.  Department  of  Interior 1103 

Rice;  Moore  u 983 

Rice;  Rook  v. 1112 

Richards  v.  Department  of  Navy 833 

Richards  v.  New  York       1066 

Richardson-Merrell  Inc.  v.  Roller     808 

Richardson  Securities  of  Canada;  Schubert  v. 827 

Richmond  County  Hospital  Authority;  Wolf  v. 826 

Rickus  -y  United  States     921 

Ridley  u  Goldman 1011 

Righetti;  Johnson  v 828 


c  TABLE  OF  CASES  REPORTED 

Page 

Riley;  Michelle  Marie  W.  u 1043 

Ringsby  Truck  Lines,  Inc.  u  Trucking  Employers,  Inc 1006 

Risley;  Austad  v. 856 

Risley;  Hart  v. 1013 

Rison;  Darwin  v.  1062 

Rispoli  v.  United  States 1069 

Rivera;  Atkins  v. 1018 

Rivera;  Riverside  v.   917 

Riverside  v.  Rivera 917 

Riverside  Bayview  Homes,  Inc.;  United  States  v. 121 

Roa  u  Lodi  Medical  Group,  Inc 990 

Roach  v.  Aiken 1039 

Roach  v.  Martin 865,1014 

Roach  v.  United  States 835 

Roanoke  Redevelopment  and  Housing  Authority;  Wright  v. 1081 

Roberson;  Gentsch  v.   1065 

Roberts  v.  Burlington  Industries,  Inc 978 

Roberts;  Farley  v. 1005 

Roberts  v.  Rutgers  State  Univ.  of  N.  J 952 

Roberts  v.  Simpson 946,1077 

Roberts  Enterprises,  Inc.  v.  Secretary  of  Transportation  of  Kan. . .  915 

Roberts  &  Schaefer  Co.;  Lake  Coal  Co.  v. 120 

Robinson;  Ariyoshi  u 1018 

Robinson  v.  Cooke 840,1015 

Robinson  u  Delaware 921 

Robinson  v.  Engle 842 

Robinson  v.  United  States 851,1032,1103 

Rock  v.  Zinn 1001 

Rockefeller;  Wilson  u 859 

Rockefeller's  Estate  v.  Commissioner 1037 

Rockford  Map  Publishers,  Inc.;  Directory  Service  Co.  of  Colo.  v.  . .  1061 

Rock  Island  Arsenal  Dept.  of  Army;  Steines  v. 822 

Rockview  State  Correctional  Institution;  Scott  u  1063 

Rockwell  International;  Williams  v. 857 

Rodman,  In  re 1049 

Rodman  v.  Continental  Ins.  Cos 804 

Rodman  v.  McMackin 1009 

Rodriguez  u  Hollahan 1035 

Roe  v.  United  States 994 

Roeder  v.  Texas 988 

Roehler  v.  California 1021 

Rogers  v.  Ohio 1002 

Rogers;  Pfeil  v. 812 

R.  O.  Givens  Signs,  Inc.  v.  Nags  Head 826 


TABLE  OF  CASES  REPORTED  Cl 

Page 

Kojas-Contreras;  United  States  v. 231 

Bolleston  n  Sea  Island  Properties,  Inc 823 

Eol  Mfg.  Co.  u  Nickson  Industries,  Inc 843 

Eornan  v.  Abrams 860 

Roman;  Abrams  v. 864 

Romano,  In  re 1017 

Eorner  v.  California 1035 

Ronwin  v.  Holohan   864 

Rook  v.  Rice 1112 

Rosberg  v.  Goeres 861 

Rose  v.  Clark 816,1047 

Rose;  Lutjeharms  v. 817,1014 

Rose  v.  United  States 856 

Roseberry  v.  Shearson  American  Express,  Inc 1026 

Rosetti;  Avondale  Shipyards,  Inc.  v. 820 

Ross  v.  Bowker  851 

Ross;  Florida  v. 898,945 

Ross  v.  Mayfield 835 

Ross  v,  Missouri 1066 

Ross  v.  United  States 1022 

Rosser-El  v.  United  States 10O9 

Rostad;  On-Deck,  Inc.  u 10O6 

Roth,  In  re      896 

Roth;  Sanchez  v. 982 

Rothman  v.  New  York  State  Dept.  of  Transportation 1032 

Rothschild  v.  U.  S.  Supreme  Court 997 

Rouse,  In  re    807 

Roussos  v.  Retina  Consultants,  P.  C 803,895 

Rovetuso  v.  United  States 1076 

Rowan  Cos.;  Transco  Exploration  Co.  v. 822 

Royce  International  Broadcasting  Co.  v.  FCC 995 

Royse  v.  United  States 1043 

Royster  v.  United  States 1064 

Rubin  v.  Board  of  Governors  of  State  Colleges  &  Univs 1104 

Rubin  v.  Western  111.  Univ. 11O4 

Ruby  D.  United  States 1101 

Rucker  v.  St.  Louis 804,805,1015 

Russell  v.  United  States 10O8 

Rustin  v.  District  of  Columbia     946 

Rutgers  State  Univ.  of  N.  J.;  Roberts  v. 952 

Ruth  v.  Texas 829 

Rutter  v.  Commissioner    848 

Ryan;  England  v. 952 

Ryan;  Owens  v.     1064 


en  TABLE  OF  CASES  REPORTED 

Page 

Ryan;  Trotman  u 862 

Sabiston,  In  re 977 

Sac  &  Fox  Tribe  u  Apex  Construction  Co 850 

Sackett-Chicago,  Inc.  v.  Midgett 909 

Sacramento  Municipal  Utility  Dist.;  Grason  Electric  Co.  v. 1103 

Sade  v.  California 994 

Saffels;  Weser  v.  983 

Saied;  Abbitt  u   997 

Sailor  u  New  York 982 

St.  Amand  v.  Jones 1065 

St.  Bernard  v.  United  States 1070 

St.  Claire,  In  re 1100 

St.  James  Hospital;  Heckler  v. 902 

St.  Joseph's  Hill  Infirmary,  Inc.  u  Pacific  Care  Center,  Inc 801 

St.  Joseph's  Hospital;  New  York  State  Nurses  Assn.  v. 827 

St.  Louis;  Rucker  u  804,805,1015 

Sakal  u  Petsock 855 

Sakamoto  v.  Duty  Free  Shoppers,  Ltd 993 

Sakellar  v.  Lockheed  Missiles  &  Space  Co 1084 

Salisbury  v.  James  River  Corp 1061 

Salman  u  United  States  Supreme  Court 853 

Sam  Rayburn  Dam  Electric  Cooperative  v.  United  States 890 

Samuel  Weiser,  Inc.;  Motta  v. 1033 

San  Antonio;  San  Antonio  Independent  School  Dist.  v.   948 

San  Antonio  Independent  School  Dist.  v.  San  Antonio 948 

Sanchez  v.  Roth 982 

Sanchez-Berridi,  In  re 899 

Sanders  v.  Junior  College  Dist.  of  Metropolitan  Kansas  City  ....  922 

Sanders  v.  Mississippi  State  Bar  Assn 844 

Sanford  v.  Bradley 906 

Sarasota  County  Public  Hospital  Bd.;  El  Shahawy  v. 829,1014 

Sargent;  Burton  v. 1011,1112 

Sargis;  Mihal  v. 803,1015 

Sarracen  u  Appleby 845 

Satterfield  u  Huebner 818 

Saugus  i>.  Voutour 1100 

Saville  v.  Westinghouse  Electric  Corp 911 

Savoca  v.  United  States 852 

Sawyer  u  Fulcomer 1063 

Sawyer  v.  United  States 1024 

Saxner;  Cleavinger  v.     ...  193 

Scaglione  v.  Communications  Workers 921 

Scanlan  v.  Alabama 1035 

Scarnati  v.  United  States 1056 


TABLE  OF  CASES  REPORTED  cm 

Page 

ScheUer  v.  American  Medical  International,  Inc 947 

Scheppf  v.  King 1036 

Schiavone  v.  Fortune  814 

Schiavone  v.  Time,  Inc 814 

Schiavone  v.  United  States 1020 

Schilling  v.  Telegraph  Savings  &  Loan  Assn.  of  Chicago 1069 

Schlitz  Brewing  Co. ;  Transcon  Lines,  Inc.  v.   848 

Schmid,  In  re 993,1077 

Schmidt;  Smallwood  v. 853 

Schoenborn  v.  Boeing  Co 1082 

School  Bd.  of  Pinellas  County  v.  Manecke 1062 

Schor;  Commodity  Futures  Trading  Comm'n  v. 1018 

Schor  v.  ContiCommodity  Services,  Inc 1083 

Schor;  ContiCommodity  Services,  Inc.  v. 1018 

Schramm  u  Cudahy 852 

Schubert  v.  Richardson  Securities  of  Canada 827 

Schuchman  V.  United  States 807,1079 

Schwab;  Galuszka  u 803 

Schwartz;  Redic  v.    920 

Schwarzer;  Green  u 921,1027 

Schwegmann  Giant  Supermarkets,  Inc. ;  Lizzana  v. 854 

Schweitzer;  Reading  Co.  v. 864 

Schwender  u  Department  of  Labor 1054 

Scott  v.  Denton 950 

Scott  v.  Rockview  State  Correctional  Institution      .                .    .  1O63 

Scott  v.  United  States 863 

Scully;  Cantone  v. ...      .          .  836 

Scully;  Griffin  v. 905 

Scully;  Smith  v. .      .  895 

Seabrook;  Jureczki  v.       .  .    .            ...                .  941 

Sea  Island  Properties,  Inc.;  Rolleston  v.  .                  .          .  823 

Sea-Land  Service,  Inc.;  Negrito  Comercial,  S.A.  v  1033 

Searcy  v.  Greer ....              .                .    .  996 

Sears;  Stewart  v.  .    .                      .          .      .                   .  1057 

Sears,  Roebuck  &  Co. ;  Otis  v.              ....            .  854 

Sears,  Roebuck  &  Co.;  Wilsons       ...                 .  1059 

Seaton  v.  McCotter  ....              .                   .  836 

Seattle;  Palmer  v.                                      828 

Seaver  v.  United  States                                 .  1101 

Secretary  of  Agriculture;  Bohemia,  Inc.  v.     .             .  919 

Secretary  of  Agriculture  v.  Castillo            ....  994 

Secretary  of  Agriculture;  North  Side  Lumber  Co,  v.  931 

Secretary  of  Agriculture  v.  Payne  815,942 

Secretary  of  Agriculture;  Pescosolido  v 1O98 


Civ  TABLE  OF  CASES  REPORTED 

Page 

Secretary  of  Air  Force;  Gfflis  u 908 

Secretary  of  Army;  Fritz  v. 832 

Secretary  of  Army;  Pacyna  v. 1078 

Secretary  of  Army;  Pappanikolaou  v. 949 

Secretary  of  Commerce  u  American  Cetacean  Society 1053 

Secretary  of  HHS  v.  Abington  Memorial  Hospital 863 

Secretary  of  HHS  v.  American  Hospital  Assn 810 

Secretary  of  HHS  v.  Aurora  Community  Hospital 863 

Secretary  of  HHS;  Ford  v.   869 

Secretary  of  HHS;  Georgia  Dept.  of  Medical  Assistance  v. 1059 

Secretary  of  HHS;  Humana  Inc.  v.  . . .' 1055 

Secretary  of  HHS  v.  Humana  of  Aurora,  Inc 863 

Secretary  of  HHS;  Jensen  v. 945 

Secretary  of  HHS;  Kolman  v. 997 

Secretary  of  HHS  u  Michigan  Academy  of  Family  Physicians 815 

Secretary  of  HHS  v.  New  York  City 815 

Secretary  of  HHS  v.  Owens  899,1046 

Secretary  of  HHS  v.  Pub.  Agencies  Opposed  to  Social  Sec.  Entrap.  1004 

Secretary  of  HHS;  Reeves  u  1064 

Secretary  of  HHS  u  St.  James  Hospital 902 

Secretary  of  HHS;  Suarez  v. 844,1097 

Secretary  of  HHS;  Triplett  v. 1104 

Secretary  of  HHS;  Van  Horn  v. 854,1015 

Secretary  of  HHS;  Weisbraut  u 852 

Secretary  of  Interior;  Canyoneers,  Inc.  v. 846 

Secretary  of  Interior;  Gabriel  Energy  Corp.  v. 900 

Secretary  of  Interior;  Grand  Canyon  Trail  Guides  v.   846 

Secretary  of  Interior  v.  Irving 1049 

Secretary  of  Interior;  Montana  v.   919 

Secretary  of  Interior;  Stearns  Co.  v. 900 

Secretary  of  Labor;  Automobile  Workers  v. 825,900 

Secretary  of  Labor;  DialAmerica  Marketing,  Inc.  v. 919 

Secretary  of  Labor;  Master  Printers  of  America  v. 818 

Secretary  of  Labor  v.  Pierce  County 944,1046,1099 

Secretary  of  Labor  v.  Transportation  Union 3 

Secretary  of  State;  Flynn  v.  830 

Secretary  of  State;  Ukrainian-American  Bar  Assn.  v.   976 

Secretary  of  State  of  Conn,  u  Republican  Party  of  Conn 1049 

Secretary  of  State  of  Ga.;  Geison  v. 1066 

Secretary  of  State  of  Me.;  Maines  v. 947 

Secretary  of  State  of  Wash,  u  Socialist  Workers  Party 1049 

Secretary  of  Transportation;  Belmont  v. 1055 

Secretary  of  Transportation;  Hoover  v.   902 

Secretary  of  Transportation  v.  Railway  Labor  Executives'  Assn.  . .  1099 


TABLE  OF  CASES  REPORTED  cv 

Page 

Secretary  of  Transportation  of  Kan.;  Roberts  Enterprises,  Inc.  v.  .  915 

Secretary  of  Transportation  of  Pa.;  National  Freight,  Inc.  v. 902 

Securities  and  Exchange  Cornm'n;  WACO  Financial,  Inc.  u 818 

Securities  Industry  Assn.  u  Comptroller  of  Currency 1054 

Seibold  v.  URN-Rohn  Co 920,1038 

Self  v.  Stephenson 858 

Sellner  v.  Maryland 1066 

Semicole  Allied  Van  Lines;  Muhammad  v. 1103 

Sendak;  Mother  Goose  Nursery  Schools,  Inc.  v. 1102 

Senft  v.  United  States 945 

Seritis;  Hotel  &  Restaurant  Employees  v. 1060 

Sestric  v.  Clark 1086 

Shabazz  v.  McCotter 979 

Shabazz  v.  Oklahoma 1068 

Shafer;  Cunningham  v. 831,997 

Shaffer-Corona  v.  District  of  Columbia  Teachers  Fed.  Credit  Union  1065 

Shahryar  u  Martin 912 

Shanghai  Power  Co.  v.  United  States 909 

Sharon  Steel  Corp.  v.  Fairmont 993,1098 

Sharp;  Almon  v. 1010 

Sharp-Eye  Enterprises  u  Golden  West  Broadcasters,  Inc 817 

Shatterproof  Glass  Corp.;  Libbey-Owens-Ford  Co.  v.   976 

Shaw  v.  Hunt 1012 

Shaw;  Library  of  Congress  -». 815,992 

Shaw  u  Woodard 922 

Shearson  American  Express,  Inc.;  Aspero  v. 1026 

Shearson  American  Express,  Inc.;  Roseberry  v. 1026 

Sheet  Metal  Workers  v.  EEOC 815,1045 

Sheffer  v.  Mallonn 1083 

Sheffield  u  North  Carolina  State  Bar 981 

Shelor  v.  Kentucky 919 

Shelton  v.  Washington 920 

Shelton  v.  Winsor 846 

Sheppard  v.  Erman 835 

Shirani;  Mahdavi  v.     950 

Shockley  u  Cox  Enterprises,  Inc 1102 

Shorter  v.  Drury 827 

Showers;  Muth  v. 1008 

Shuba  v.  Austintown  Bd.  of  Ed 1033 

Shultz;  Flynn  v. 830 

Shultz;  Ukrainian- American  Bar  Assn.,  Inc.  v. 976 

Sibaja  v.  Dow  Chemical  Co 948 

Siegfried,  In  re     941, 1044 

Sielaif  v.  Carrier 898 


cvi  TABLE  OF  CASES  REPORTED 

Page 

Sielaff;  Inge  u  833 

Sielaff;  Smith  u 918,993,1031 

Sielaff;  Turner  v. 1003 

Sielaff;  Williams  v. 906 

Sierra  v.  United  States 981 

SignAd,  Inc. ;  Sugar  Land  v. 822 

Silas  v.  Winans 1022 

Silent  Hoist  &  Crane  Co.  v.  Director,  Division  of  Taxation 995 

Sirncox;  Hall  v. 1006 

Simmons  v.  Camden  County  Bd.  of  Ed 981 

Simmons  v.  Interstate  Commerce  Comm'n 1055 

Simon  u  United  States 863,1013 

Simone  v.  G.  N.  A.  C.  Corp 820 

Simone  v.  Golden  Nugget  Hotel  &  Casino 820 

Simons  v.  Dietz 838 

Simons  v.  Montgomery  County  Dept.  of  Parole  and  Probations  ....       979 

Simons  v.  Montgomery  County  Dept.  of  Police 1054 

Simor;  Cochrane  v.   847 

Simplot  v.  Strobl 1006 

Simpson;  Roberts  v.   946,1077 

Sims  v.  Babcock  &  Wilcox  Co 836 

Sims  v.  Cooke 849 

Sinclair  International  v.  Maxfield 1057 

Siripan  v.  United  States 1086 

Sisson  u  Helms 846 

Skaggs  v.  United  States 852 

Skinner;  Mullen  v. 980 

Skipper  u  South  Carolina     900,942 

Sklut  Hide  &  Furs  v.  Prudential  Lines,  Inc 824 

Sloan  v.  Hicks 1006,1111 

Slone,  In  re 807 

Smalis  v.  Pennsylvania 944, 1047 

Smallwood  v.  Schmidt 853 

Smith,  In  re 1030 

Smith;  Betkau 860,1015 

Smith;  Billings  v. 859 

Smith;  Burton  v 997, 1077 

Smith;  Cleveland  Heights  v. 1056 

Smith;  Cushing-Gale  v. 1012 

Smith  v.  DeRobertis 838 

Smith;  Foster  u 861,990 

Smith  v.  Francis 925,1026 

Smith  v.  Golden  West  Broadcasters,  Inc 817 

Smith  v.  Illinois 949 


TABLE  OF  CASES  REPORTED  cvn 

Page 

Smith;  Jones  v. 1073 

Smith  v.  Maryland 854 

Smith  v.  Maschner 996 

Smith  v.  Montana 1073 

Smith;  Mullady  u 949 

Smith  v.  Nevada 1104 

Smith  v.  New  Jersey 820 

Smith  v.  North  Carolina 1026 

Smith  v.  Omaha 1068 

Smith  v.  Pittsburgh    950 

Smith  v.  Scully 895 

Smith  v.  Sielaff 918,993,1031 

Smith  v.  Thigpen 944 

Smith  v.  United  States 830,1098 

Smith;  Welch  v. 1086 

Smith  Barney,  Harris  Upham  &  Co.;  Chapman  v. 850 

Smith-Bey,  In  re 814,978 

Smith  International,  Inc.  v.  Hughes  Tool  Co 827 

Smith's  Estate  v.  United  States 1056 

Snaer  v.  Guam 828 

Snowden  v.  United  States 1011 

Snyder;  Fells  v. 922 

Sobin  t).  District  of  Columbia 860 

Socialist  Workers  Party;  Munro  v.    .      .       1049 

Soft  Drink  Workers  v.  Monarch  Long  Beach  Corp 1020 

Soft  Drink  Workers;  Monarch  Long  Beach  Corp.  v. 1020 

Solern;  Cody  v. 833 

Sonmier  v.  Suffolk  County 852,1000 

Sonnrnerstedt  v.  United  States  ...  .          .          .         851 

Sorensen  v.  Fitzgerald 918,1014 

Sotelo  v.  United  States 806 

Soto  v.  United  States 832 

South  v.  South  Carolina .         888 

South  Carolina;  Butler  v. .  1094 

South  Carolina;  Clark  -v.    .  ...  .  .         998 

South  Carolina;  Damon  v  ....  .    865,1015 

South  Carolina;  Dunbar  v.  ...  .  1063 

South  Carolina;  Felder  v. .    .      .        .  .  1066 

South  Carolina;  Green  v.   .      .        .    .  .  .  921 

South  Carolina;  Lanier  u  .  .  25 

South  Carolina;  Skipper  v. .         .  ...      900,942 

South  Carolina;  South  v.    .  .  .  .    .  888 

South  Dakota  v.  Nebraska      ...  ...  .  941 

South  Dakota;  Oglala  Sioux  Tribe  v.  ....  1102 


cvm  TABLE  OF  CASES  REPORTED 

Page 

Southeast  Toyota  Distributors,  Inc.;  Fowler  v.  951,1038 

Southern  Bell  Telephone  &  Telegraph  Co.;  Kearson  v. 1065 

Southern  Pacific  Transportation  Co.;  Flores  v. 828 

Southern  Pacific  Transportation  Co.;  Garcia  v. 848 

Southern  R.  Co.;  Whitehead  v. 1083 

Southern  R.  Co.;  Woodrum  v. 821 

Southland  Corp.  v.  United  States 825 

South  Park  Independent  School  Dist.;  Day  u 1101 

Southwest  Chem.  Services  v.  Superior  Ct.  of  Maricopa  Cty 847 

Sovran  Bank;  Phelps  v. 858,1015 

Sowells  v.  Harmon 823 

Span  v.  DeLaine 835,990 

Spaniol;  Carter  v. 998 

Spanish  Lake  Assn.;  Carson  v. 829 

Spann  v.  Wainwright 830 

Spantax,  S.A.;  De  la  Lastra  Petrire  v. 846 

Sparrow  v.  Devine 949,1077 

Sparrow  v.  Hajimaholis 1006,1111 

Spaulding  v.  Holland 998 

Spellman  v.  Integon  General  Ins.  Corp 1010,1097 

Spendlove  v.  Anchorage  Mun.  Zoning  Bd.  of  Examiners  &  App. .  . .       895 

Sperry  Rand  Corp. ;  Ambrose  v. 947 

Spicer  v.  United  States 924 

Spiegel;  Mann  v. 935 

Spiess  v.  United  States 1004 

Spigner;  Aleem  u   832 

Spika  v.  Lombard 1056 

Spivey  v.  United  States 923 

Sporck;  Peil  v. 903 

Springfield;  DeFazio  v. 1055 

Springston  v.  Pacific  Intermountain  Express  Co 1023 

Spruytte;  Walters  v. 811,1054 

Square  D  Co.  u  Niagara  Frontier  Tariff  Bureau,  Inc 815,1017,1080 

Srubar  v.  Department  of  Treasury 855,1000 

Stachura;  Memphis  Community  School  Dist.  v.   918 

Stafford  u  Oklahoma 865 

Stagner;  Anderson  v.   857 

Stamps  v.  Pima  County  Superior  Court    1035 

Standard  Oil  Co.  of  CaL;  Northern  Oil  Co.  v. 821 

Standford  v.  United  States 1067 

Stanley  v.  Aubert 981 

Stano  u  Florida 1093 

Staples  v.  United  States 908 

State.     See  name  of  State. 


TABLE  OF  CASES  REPORTED  CDC 

Page 

State  Bar  of  Cal.;  Chapman  v. 848 

State  Bar  of  Tex.;  Daves  v. 1043 

State  Bd.  of  Land  Comm'rs  of  Colo.;  Occidental  Oil  Shale,  Inc.  v. .  .  817 

State,  County  &  Municipal  Employees  v.  United  States  1022 

State  Ins.  Fund;  Methodist  Hospital  of  Brooklyn  *v.   801 

State  Oil  &  Gas  Bd.;  Transcontinental  Gas  Pipe  Line  v. .  . .    897,1030,1045 

State  Oil  &  Gas  Bd.  of  Miss.;  Transcontinental  Gas  Pipe  Line  v. .  .  .  409 

State  Savings  &  Loan  Assn.  v.  Federal  Home  Loan  Bank  Bd 1057 

Stauffer  v.  United  States 1063 

Stearns  Co.  v.  Hodel 900 

Steelworkers;  Frye  v. 1007 

Steelworkers;  Graczyk  v. 970 

Steines  v.  Rock  Island  Arsenal  Dept.  of  Army 822 

Stelly  -v.  Commissioner 851 

Stephenson;  Self  v.   858 

Sterley  v.  United  States 1013 

Stetz  v.  Grant 1033 

Stevas;  Borntrager  u 1008 

Stevens  v.  California 1059 

Stevens  v.  Wisconsin 852 

Stevens  &  Co.;  Lex  Tex  Ltd.  v 822 

Steves  Sash  &  Door  Co.;  Uviedo  v. 1054 

Stewart  v.  Sears 1057 

Stewart  v.  Texas 866 

Stewart  v.  United  States 1103 

Stewart  v.  Wisconsin 906 

Stierheim;  Liphete  D. 1069 

Stivers;  Hallstrom  v. 902 

Stock,  In  re 1002 

Stock;  Massachusetts  Hospital  School  v. 844 

Stock  Buyers  International,  Inc.;  Polo  Fashions,  Inc.  v. 1018 

Stocki  v.  Illinois 952 

Stone  v>  Merit  Systems  Protection  Bd 1033 

Stop-N-Go,  Inc.  v.  Bradfield 805 

Stouts;  Burton  v. 856 

Strader  v.  Allsbrook 834 

Strader  v.  Keith 833 

Streeter  v.  United  States      1064 

Streich  v.  United  States 860,1000 

Strobl;  Siinplot  v.  .      .              1006 

Strode  v.  Gregory 803,948 

Sturm,  In  re 982 

Sturm  v.  California 906, 1009 

Suarez  v.  Heckler 844, 1097 


ex  TABLE  OF  CASES  REPORTED 

Page 

Suburban  Ford,  Inc.  v.  Ford  Motor  Credit  Co 995 

Suffolk  County;  Sommer  v. 852,1000 

Sugar  Land  v.  SignAd,  Inc 822 

Sui;  Landi  v. 846 

Sunnyside  Valley  Irrigation  Dist.  v.  United  States 1032 

Sun  Oil  Co.  v.  Wortman 806 

Superintendent,  Arthur  Kill  Correctional  Facility;  Autorino  u  ....  849 

Superintendent  of  Capron  Correctional  Unit;  Burnley  v. 1011 

Superintendent  of  penal  or  correctional  institution.     See  also  name 
or  title  of  superintendent. 

Superior  Court  of  Ariz.,  Pima  Cty.;  Val/Del,  Inc.  v. 920 

Superior  Court  of  Cal.,  Riverside  Cty.;  Press-Enterprise  Co.  v.    899,1017 

Superior  Court  of  Cal.,  San  Bernardino  Cty.;  Ratner  v.  834 

Superior  Court  of  Cal.,  San  Diego  Cty.;  John  Holman  &  Sons  v. .  . .  1082 

Superior  Court  of  Contra  Costa  Cty.;  Valentino  v. 837 

Superior  Court  of  Maricopa  Cty.;  Southwest  Chem.  Services,  Inc.  v.  847 

Supreme  Court  of  Appeals  of  W.  Va.;  WestfaU  v. 1065 

Supreme  Court  of  Ohio;  Johns  v. 824 

Supreme  Court  of  Va.;  Goldfarb  v. 1086 

Surdut,  In  re 896 

Sutton;  Connecticut  v. 1073 

Swaim  v.  United  States 825 

Swain  v.  United  States 908 

Swan  v.  Texas 1102 

Sweater  Bee  by  Banff,  Ltd.  v.  Manhattan  Industries,  Inc 819 

Sweeney  v.  United  States 908 

Swicegood  v.  United  States 1012 

Syracuse  Univ.;  McLaurin  v. 1011 

Systems  Architects,  Inc.  v.  United  States    847 

Szombathy;  Dano  v. 950,1077 

Tafoya  v.  United  States 921 

TaUentire;  Offshore  Logistics,  Inc.  v. 816,1003,1017 

Tamayo  v.  United  States 839 

Tashjian  v.  Republican  Party  of  Conn 1049 

Tate  v.  Cooke 842 

Taylor  v.  Automobile  Workers 1081 

Taylor  v.  Best 982 

Taylor  v.  Blackwell 847 

Taylor  v.  Louisiana     1022 

Taylor;  Maine  v. 943,1047 

Taylor  v.  O'Keefe 888 

Taylor  v.  United  States 821,829 

Teachers  v.  Hudson 810 

Teamsters;  Aragon  v. 902 


TABLE  OF  CASES  REPORTED  cxi 

Page 

Teamsters;  Bippus  v. 1007 

Teamsters;  Knox  v. 857 

Technograph,  Inc.  v.  General  Motors  Corp 819 

Tectonics,  Inc.;  Collins  Co.  v. 848 

Telegraph  Savings  &  Loan  Assn.  of  Chicago;  Schilling  v.   1069 

Templeman  u  Chris  Craft  Corp 1021 

Tenneco  West,  Inc.  u  Marathon  Oil  Co 845 

Tennessee;  Austin  v. 1073 

Tennessee;  Huskey  u 936 

Tennessee;  McDonald  v. 951 

Tennessee  Dept.  of  Employment  Security;  Johnson  v. 826 

Terrell;  Reed  v.   946 

Territory.     See  name  of  Territory. 

Terry  v.  Alabama 826 

Terry;  Musicant  v. 856 

Texaco  Inc.;  Farm  Stores,  Inc.  v. 1039 

Texas;  Bonham  v. 865 

Texas;  Cannon  v. 1110 

Texas  v.  Chambers 864 

Texas  v.  Colorado 1017 

Texas;  Corpus  Christi  People's  Baptist  Church,  Inc.  v. 801 

Texas;  DeGarmo  v.   973 

Texas  v.  Department  of  Energy 1008 

Texas;  Duff-Smith  v. 865 

Texas;  East  v. 1000 

Texas;  Gamez  v. 833 

Texas;  Guzmon  v. .            1015 

Texas;  Hurwitz  v.    1102 

Texas;  Johnson  v. .  865 

Texas;  Masters  v.        853 

Texas  v.  McCullough 897 

Texas;  Moore  v. 1113 

Texas;  Neal  v. .  818 

Texas;  Nethery  v.                                    .    .          1110 

Texas;  Nichols  v.               .                  ...                .          1034 

Texas;  Penry  v. . .          .    .  1073 

Texas;  Preston  v. 982 

Texas;  Roeder  v.   .      .  .          ....           988 

Texas;  Ruth  v. ...      .              ...  829 

Texas;  Stewart  v.                        866 

Texas;  Swan  u             .  .                       ...              ...              .  .              .    .  1102 

Texas;  Thompson  v. .        ...              ...              ...          865 

Texas  v.  United  States      .      .  .  843,1078 

Texas;  Wiley  v.      .                           944 


cxn  TABLE  OF  CASES  REPORTED 

Page 

Texas;  Williams  v. 1110 

Texas  State  Bd.  of  Dental  Examiners;  Blankfield  v. 980 

T.  G.  &  Y.  Stores,  Inc.  v.  Lusby 818,1014 

Thacker  v.  Atiyeh 854 

Thanh,  In  re 1100 

Theatrical  Stage  Employees  «.  Department  of  Labor 901 

Thigpen;  Smith  v. 944 

Thoele  v.  Chicago 1056 

Thomas  v.  Arkansas 821 

Thomas  v.  Am 140,1111 

Thomas  v.  General  Services  Administration 843 

Thomas;  Kemp  v. 1048 

Thomas  v.  McCotter 935,1015 

Thomas  u  Missouri 842 

Thomas  v.  United  States 873,980,1066 

Thomas;  Wainwright  v.   864 

Thomas  v.  Ylst 859 

Thompson  v.  First  National  Bank  &  Trust  Co 895,1027 

Thompson;  Merrell  Dow  Pharmaceuticals  Inc.  v. 1004 

Thompson  v.  Texas 865 

Thompson  v.  United  States 828 

Thomson  v.  American  Lutheran  Church,  Inc 802 

Thomson  McKinnon  Securities,  Inc.;  Dearie  v. 903 

Thornburg  v.  Gingles 808 

Thornburg;  Nantahala  Power  &  Light  Co.  v. 1018 

Thornburgh  u  American  College  of  Obstetricians  &  Gynecologists .  809 

Thome  v.  West  Virginia 996 

Thornton  v.  Holland 1083 

Thrasher  v.  Illinois 850 

Three  Affiliated  Tribes  of  Ft.  Berthold  v.  Wold  Engineering  . .  .    900,1046 

324  Liquor  Corp.  v.  McLaughlin  811 

Tierney  v.  United  States 843 

Tiffany  Industries,  Inc.  v.  Alexander  Grant  &  Co 1058 

Tillis  v.  Davis 837 

Timberlake  v.  United  States 1101 

Time,  Inc.;  Schiavone  v. 814 

Times-World  Corp.;  Adkins  v.  1109 

Tinker-Bey  v.  District  of  Columbia 1065 

Toland  v.  Arkansas 945 

Toler  v.  United  States     829 

Tomczak  v.  Chicago 946 

Toomey  v.  United  States 1069 

Torres  v.  Little  Flower's  Children's  Services 864 

Toshiba  America,  Inc.;  Copy-Data  Systems,  Inc.  v. 825 


TABLE  OF  CASES  REPORTED  cxni 

Page 

Tourism  Co.  of  P.  R.;  Condado  Holiday  Inn  v. 917,1031,1046,1079 

Tourism  Co.  of  P.  R.;  Posadas  de  P.  R.  Associates  v.    917,1031,1046,1079 

Towles  u  United  States 935 

Town.     See  name  of  town. 

Tracey,  In  re 899,1111 

Tracy  v.  Commissioner 866 

Trailer  Train  Co.;  Bair  v. 1021 

Transanierica  Delaval  Inc.;  East  River  S.S.  Corp.  v. 814,1046 

Transco  Exploration  Co.  v.  Rowan  Cos 822 

Transcon  Lines,  Inc.  v.  Joseph  Schlitz  Brewing  Co 848 

Transcontinental  Gas  Pipe  Line^.  State  Oil  &  Gas  Bd.    409,897,1030,1045 

Transgo,  Inc.;  Ajac  Transmission  Parts  Corp.  v. 1059 

Transportation  Union;  Brock  v. 3 

Transportation  Union;  Cuyahoga  Valley  R.  Co.  v. 3 

Travalino  v.  Dixon 1043 

Travelers  Indemnity  Co.;  Doran  v. 1007 

Travelers  Inns  of  N"orth  Wilkesboro,  Inc.;  Douglas  v. 847 

Travelers  Ins.  Cos.;  Community  Health  Services  of  Crawford  Cty.  v.  1056 

Travis  v.  United  States 840 

Treadwell  u  United  States 1064 

Treasury  Employees  v.  O'Connor 909 

Trichell  v.  United  States 1104 

Trident  Technical  College;  George  A.  Creed  &  Son,  Inc.  v. 1060 

Tripati,  In  re 1048 

Triplett  v.  Bowen 1104 

Trotman  v.  Ryan 862 

Truck  Drivers  v.  National  Labor  Relations  Bd 901 

Trucking  Employers,  Inc. ;  Ringsby  Truck  Lines,  Inc.  v. 1006 

Tnirnan  Chafin  Legal  Corp.;  Blair  v. 840 

Truman  Chafin  Legal  Corp.;  Blairco,  Inc.  v.    840 

Trump  V.  Chu 915 

Truth  or  Consequences;  Hewitt  v. 844 

Tsai  u  Li 826 

Tsuchiya;  Woods  v.   825 

Tubbs  v.  McCotter 997 

Tucker  v.  Hartford  Federal  Savings  &  Loan  Assn 896,920 

Tucker  -v.  Hartford  National  Bank  &  Trust  Co 845 

Tucker  -y.  Kemp 1001 

Tucker  v.  United  States 1085 

Tudor  v.  Glaesman 995 

Tufaro  u  United  States 826 

Tulalip  Tribes  of  Wash.  t>.  Federal  Energy  Regulatory  Comm'n     . .  900 

Tulare;  Ornsbey  v. 842 

Turner;  Carson  v. 944 


cxrv  TABLE  OF  CASES  REPORTED 

Page 

Turner  v.  C  F  &  I  Steel  Corp 1058 

Turner  v.  Morris 906 

Turner  v.  North  Carolina  Dept.  of  Human  Resources 1011,1111 

Turner  v.  Sielaff 1003 

Tuscaloosa  News,  Inc.;  Craig  v. 841 

Two-R  Drilling  Co.;  Martin  v. 849 

Tyler;  James  v. 1026 

Typhoon  Car  Wash,  Inc.  v.  Mobil  Oil  Corp 981 

Ugarte  v.  United  States  Lines,  Inc 848 

Ukrainian- American  Bar  Assn. ,  Inc.  v.  Shultz 976 

Unangst  u  Pennsylvania 837 

Unauthorized  Practice  Comm.,  State  Bar  of  Tex.;  Cortez  v. 980 

Unauthorized  Practice  Comm. ,  State  Bar  of  Tex. ;  Cortez  Agency  v.  980 
Union.     For  labor  union,  see  name  of  trade. 

Union  Carbide  Corp.;  Karapinka  v. 1060 

Union  Carbide  Corp.;  Lundy  v. 848 

Union  Gap  Irrigation  Dist.  v.  United  States 1032 

United.     For  labor  union,  see  name  of  trade. 

United  Artists  Communications,  Inc.  v.  United  States 945 

United  Ky.  Bank,  Inc.  v.  George 821 

United  Pacific  Ins.  Co.  v.  Aniero  Concrete  Co 1033 

United  Parcel  Service  of  America,  Inc. ;  Goldberg  v. 920 

United  States.     See  name  of  other  party. 

U.  S.  Attorney  for  Southern  Dist.  of  Ala.;  Ernest  v. 1016 

United  States  Automobile  Assn.;  Boardman  v. 980 

U.  S.  Court  of  Appeals  Judge;  Cataldo  v.     916 

U.  S.  Customs  Service;  Barrett  v. 812,984 

U.  S.  District  Court;  Humphrey  v. 853 

U.  S.  District  Court;  McQueen  v.   1064 

U.  S.  District  Judge;  Day  v. 922 

U.  S.  District  Judge;  Green  v. 921,1027 

U.  S.  District  Judge;  Prevatte  u 918 

U.  S.  District  Judge;  Randall  v. 840 

U.  S.  District  Judge;  Reehlman  v. 1032 

U.  S.  District  Judge;  Weser  v. 983 

United  States  ex  rel.  Martin  Steel  Constructors;  Harvis  Const,  v.  817 

United  States  Lines,  Inc.;  Ugarte  v. 848 

U.  S.  Marshals  Service;  Pennsylvania  Bureau  of  Correction  v. . .    .  34 

United  States  Parcel  Service;  Daniel  v. 1067 

U.  S.  Parole  Comm'n;  Hutchings  von  Ludwitz  v. .  .                .  984 

U.  S.  Postal  Service;  Farris  v. 907 

U.  S.  Postal  Service;  Postal  Workers  v. 1055 

U.  S.  Postal  Service;  Prewitt  v. 813 

United  States  Steel  Corp.;  McCorstin  v. 1008,1097 


TABLE  OF  CASES  REPORTED  cxv 

Page 

U.  S.  Supreme  Court;  Rothschild  v. 997 

U.  S.  Supreme  Court;  Salman  v. 853 

United  States  Trust  Co.  of  N.  Y.;  Bennett  v. 1058 

United  Van  Lines;  Dow  v. 825,1014 

United  Van  Lines,  Inc.  v.  Hunter 863,1014 

University  of  Pittsburgh  School  of  Medicine;  Dennie  v. 849 

University  of  Term.  v.  Elliott 1004 

URN-Rohn  Co.;  Seibold  v. 920,1038 

U.  S.  Trust  Corp.  v.  Board  of  Governors,  FRS 1098 

UTC/Hamilton  Standard  Division;  Velilla  v. 832 

Utz  v.  United  States 1032 

Uviedo  v.  Steves  Sash  &  Door  Co 1054 

Val/Del,  Inc.  v.  Pascua  Yaqui  Tribe 920 

Val/Del,  Inc.  v.  Superior  Court  of  Ariz.,  Pima  County   920 

Valentino  v.  Superior  Court  of  Contra  Costa  County 837 

Van  Arsdall;  Delaware  v. 897,977 

Van  Hoff  v.  Iowa 1034 

Van  Horn  v.  Heckler 854,1015 

Vanover  v.  Kentucky 953 

Vanterpool  v.  Hess  Oil  Virgin  Islands  Corp 1059 

Van  Worrner;  Hyde  v. 827,992 

Vargas  n  United  States • 1069 

Varnes  u  Forbes 1058 

Vasquez  v.  Hillery 254 

Vaughn;  Carbalan  v. 1007 

Veal  v.  DeRobertis 1082 

Veale  v.  Veale 1010 

Veatch  v.  United  States 908 

Velilla  v.  UTC/Hamilton  Standard  Division      832 

Verdeyen;  Haynes  v. 1083 

Verdon  v.  United  States 1012 

Vernon  v.  Maggio 945, 1078 

Veterans  Administration;  Christian  u      826 

Veterans  Administration;  Groza  v. 873 

Vetter,  In  re 1044 

Vido  u  United  States      1013 

Vigne  u  United  States 861,983 

Vignes  v.  Virginia  ...  1062 

Village.     See  name  of  village. 

Village  Book  &  News  Store;  Arcara  u      978 

Villano  v.  United  States      981 

Villanueva  v.  Oklahoma       901 

Villarreal  v  United  States 904 

Vincent  v.  United  States .       838 


cxvi  TABLE  OF  CASES  REPORTED 

Page 

Vinson;  Meritor  Savings  Bank,  FSB  u 1047 

Vinson;  PSFS  Savings  Bank,  FSB  v.   815 

Virginia;  Duff  v. 905 

Virginia;  Edmonds  v.  975 

Virginia;  Poyner  v.   865,888 

Virginia;  Vignes  u 1062 

Vivitar  Corp.  v.  United  States 1055 

Vizbaras  v.  Prieber 1101 

Vogel;  Goldblatt  v. 952 

Von  Ludwitz  v.  U.  S.  Parole  Comm'n 984 

Von  Neumann;  United  States  v. 242 

Voutour;  Saugus  v. 1100 

W.  v.  Riley 1043 

WACO  Financial,  Inc.  v.  Securities  and  Exchange  Comm'n 818 

Wade  v.  Crane 1020 

Wade  v.  Frontier  Properties,  Inc 837 

Wade  v.  United  States 1048 

Waffenschmidt;  Currey  v.  1056 

Waffenschmidt  v.  First  National  Bank  of  Mt.  Vernon 1056 

W.  A.  Foote  Memorial  Hospital,  Inc.  v.  Grubb 946 

Waggoner  v.  United  States 1103 

Wainwright;  Adams  v.   1073 

Wainwright;  Booker  u 975 

Wainwright;  Brown  v.   1084 

Wainwright;  Darden  v. 899 

Wainwright;  Ford  v. 1019 

Wainwright;  Grace  v. 901 

Wainwright  v.  Greenfield 284,810,897 

Wainwright;  Kennedy  v. 1112 

Wainwright;  McKnight  v. 1064 

Wainwright;  Reed  v. 950 

Wainwright;  Spann  u 830 

Wainwright  v.  Thomas 864 

Wainwright;  Young  v. 859 

Walberg;  Israel  v.  1013 

Walker,  In  re 836 

Walker  v.  Georgia 865,1015 

Walker;  Holloway  u 1037 

Walker;  McLain  v. 1061 

Walker;  Messerschmitt  Bolkow  Blohm,  GmbH  v. 812 

Walker  v.  Prisoner  Review  Bd 1065 

Walker  v.  United  States 953 

Walker  u  Warren     801 

Wallace  v.  United  States 908,1112 


TABLE  OF  CASES  REPORTED  cxvn 

Page 

Walnut  Properties,  Inc.;  California  v. 903 

Walters,  In  re 808 

Walters  v.  Spruytte 811,1054 

Walton,  In  re 814,1014 

Wandel  v.  Colorado 1032 

Wansong  v.  Wansong 1014 

Ward,  In  re 1031 

Ward  v.  L  &  C  Marine  Transport,  Ltd 904 

Ward;  Longshoremen  v. 1008 

Wardair  Canada  Inc.  v.  Florida  Dept.  of  Revenue 943,1002,1079 

Warden.     See  also  name  of  warden. 

Warden;  Bernard  v. 1104 

Warden  v.  Wyrick 1035 

Warden,  House  of  Correction;  Kelly  v. 853 

Wamick  v.  Jin  Cha 920 

Warren  v.  Government  Employees 1006 

Warren;  Walker  v, 801 

Warren  County  Fiscal  Court;  West  v. 1086 

Washington;  Brown  v. 1058 

Washington;  Hooper  v. 919 

Washington;  Komoto  v. 1021 

Washington;  Quinault  Indian  Nation  v. 1100 

Washington;  Shelton  v. 920 

Washington  v.  United  States 994 

Washington  Dept.  of  Services  for  Blind;  Witters  v. 481 

Washington  Metropolitan  Area  Transit  Authority;  Brown  v.   .  .  .    .  858 

Wasserstrom  v.  Eisenberg 946 

Watkins,  In  re 814 

Watson,  In  re 808,1030 

Way;  Freedom  Savings  &  Loan  Assn.  v.     845 

Webster;  Miller  v. 858 

Weeks  v.  Johnson ....  950 

Weempe  v.  United  States 863 

Weide  v.  United  States 822 

Weiner;  Haas  v.       981 

Weinstein  v.  Eisenberg         946 

Weisbraut  v.  Heckler             852 

Weiser,  Inc.;  Motta  v. ....          1033 

Weiss  v.  United  States .    .  944 

Welborn;  Hanrahan  v .    .          ...                  ...  1104 

Welch  u  Ohio.  .          907,1010 

Welch  v.  Smith 1085 

Welcker  v.  United  States  .              826 

Wellington  v.  United  States       .    .  1032 


cxvni  TABLE  OF  CASES  REPORTED 

Page 

Wells;  Jones  u 1102 

Welty;  Heggy  u 947 

Wendolkowski  u  United  States 996 

Weser  v.  Saffels 983 

West  v.  Cain 1066 

West  v.  Warren  County  Fiscal  Court 1086 

Westbrook  v.  Arkansas 1006 

West  Central  Cooperative  v.  United  States 1000 

Western  Concrete  Structures  Co.;  Mitsui  &  Co.  (U.S.A.)  v. 903 

Western  111.  Univ.;  Rubin  v. 1104 

Western  Reserve  Oil  &  Gas  Co.  v.  New  1056 

Western  Union  International,  Inc.  v.  Amato 1113 

Westfall  v.  Supreme  Court  of  Appeals  of  W.  Va 1065 

West  Gulf  Maritime  Assn.  v.  Longshoremen 844 

Westinghouse  Electric  Corp. ;  Saville  v. 911 

Westin,  Inc.  u  BLC  Ins.  Co 844 

West  Linn;  Betka  v.  836,1015 

West  Publishing  Co.;  Beary  v. 903 

West  Virginia;  Clements  v. 857 

West  Virginia;  Thorne  v. 996 

Wetherbee,  In  re 897 

Wettman;  Day  v. 1035 

Whalen  u  Dean  Steel  Erection  Co 802 

Whaley,  In  re 814,990 

Wham  v.  United  States 1105 

Wharton  v.  Abbeville  School  Dist 1086 

Wheeler  v.  Mental  Health  and  Mental  Retardation  Authority  . .      .  824 

Wheeler  v.  United  States 1081 

Wheelings  v.  United  States 819 

Whiddon  v.  United  States     835 

Whigham  v.  New  York  Telephone 1011 

Whitaker  v.  Knapp 803 

Whitaker  v.  New  York 830 

White;  Burnside  v. 1022 

White;  Hubbard  v. 834 

White  v.  Minnesota 1057 

White  v.  United  States 983,1101,1103 

White;  Zerman  v. 895,1077 

Whitehead  v.  Southern  R.  Co ....  1083 

Whiting;  Kelly  v. 1008 

Whitley  v.  Albers 809 

Whitley  v.  Bair .              .  989 

Whitley  v.  United  States      873 

Whitmer;  Price  v. 828 


TABLE  OF  CASES  REPORTED  cxix 

Page 

Whitt  v.  Commissioner 1005 

Whittaker  Corp.  v.  Olympic  Sports  Products,  Inc 1060 

Whittlesey  v.  Maryland 858,1000 

Wicker;  Brantner  v. 831 

Wickham  v.  United  States 983 

Widell  &  Sons  v.  Ellison 1083 

Wiebner  v.  Fulcomer 852 

Wiggins  v.  New  Mexico 831 

Wigley  v.  Florida 949 

Wilco  Marsh  Buggies  &  Draglines,  Inc.  v.  Kori  Corp 902 

Wilentz;  Hauptmann  v. 1103 

Wiley  v.  Texas 944 

Wiley  v.  United  States    1054 

Wilhite;  Greyhound  Lines,  Inc.  v, ...    .    910,1026 

Wilkes-Barre  Publishing  Co.  Pension  Trust;  Edwards  v. 843 

Willardo  v.  Indiana 1098 

Williams  v.  Arkansas 844 

Williams  v.  Caldwell .      .       945 

Williams;  Daniels  v. 327 

Williams  v.  Delaware     .    .          824 

Williams  v.  Illinois .  .  836 

Williams  v.  Kemp ....  .  806 

Williams  v.  Kimmelman     .  .  ...       838 

Williams  v.  Lockhart .          .  .        .832 

Williams;  Mack  u  .  .  .  852 

Williams  i>.  Maggio     ....          .        ...          .  1011 

Williams  v.  Phelps      .    .  . .  .          .  .  951 

Williams  v.  Rockwell  International  ....  ...  .  857 

Williams  v.  Sielaff         .      .  906 

Williams  v.  Texas    .  .  .  1110 

Williams  v.  United  States .          829,838,906,1004,1013 

Williamsport  Area  School  Dist.;  Bender  v.          .  942,1002 

Willis  v.  United  States  .  849 

Wilmshurst  v.  New  Motor  Vehicle  Bd.  936 

Wilson  v.  Barnes     ,  907 

Wilson;  Burton  v.         .    .  997,1077 

Wilson  v.  Louisiana  .  911,1027 

Wilson  v.  McMackin  1065 

Wilson  v.  Rayl  831 

Wilson  v.  Rees  944 

Wilson  v.  Rockefeller  .  859 

Wilson  v.  Sears,  Roebuck  &  Co.  .  1059 

Wilsons.  United  States  862,921,1012,1078,1097 

Wimberly  v.  Labor  and  Industrial  Relations  Comm'n  of  Mo.  942 


cxx  TABLE  OF  CASES  REPORTED 

Page 

Winans;  Silas  u  1022 

Winbourne;  Eastern  Air  Lines,  Inc.  u 1036 

Winsor;  Shelton  v. 846 

Wisconsin;  Bowers  u  837 

Wisconsin;  Gillespie  v. 1083 

Wisconsin;  Kramsvogel  v.   901 

Wisconsin;  Stevens  u 852 

Wisconsin;  Stewart  v. 906 

Wisconsin  Bd.  of  Attorneys  Professional  Responsibility;  Rader  v. . .  820 

Wisconsin  Dept.  of  Industry,  Labor  &  Human  Rel.  v.  Gould  Inc.  .  942 

Wisconsin  Dept.  of  Industry,  Labor  &  Human  Rel. ;  Pautz  v. 1022 

Witters  u  Washington  Dept.  of  Services  for  Blind 481 

Wivorkoski  u  Pennsylvania 822 

Wold  tfc  Lerner 983 

Wold  Engineering,  P.  C.;  Three  Affiliated  Tribes  v. 900,1046 

Wolf;  Lament  v. 825 

Wolf  v.  Richmond  County  Hospital  Authority 826 

Wolverine  Packing  Co.;  Hakim  u     998 

Wood  v.  Federal  Deposit  Ins.  Corp 944 

Wood  v.  Pennsylvania 1012 

Woodard;  Shaw  u 922 

Woodrum  v.  Southern  R.  Co 821 

Woods;  Brown  v. 1084 

Woods;  Midwife  v. 944 

Woods  v.  Tsuchiya 825 

Woodside  v.  Hoerner 949 

Woodside  v.  National  Director  of  Veteran's  Administration 851 

Woodward  Sand  Co.  v.  Pension  Benefit  Guaranty  Corp 810 

Woolard  u  United  States 921 

Word,  In  re 814 

Workers'  Compensation  Appeals  Bd.;  Hinke  v.   1013 

World  of  Sleep,  Inc.  u  La-Z-Boy  Chair  Co 823 

World  of  Sleep,  Inc.;  La-Z-Boy  Chair  Co.  u 823 

Worre  u  Department  of  Revenue  of  Ore 1058 

Worthen  Bank  &  Trust  Co.;  Meachum  v. 844 

Worthington;  Icicle  Seafoods,  Inc.  u 900,978,1080 

Wortman;  Sun  Oil  Co.  u 806 

Wright  v.  Bourbeau 1083 

Wright  v.  Florida 1094 

Wright  v.  Girjalva    861 

Wright  v.  Roanoke  Redevelopment  and  Housing  Authority 1081 

Wright  v.  United  States 920 

Wyche;  Black  v. 1059 

Wyoming;  Hopkinson  u 865,1026 


TABLE  OF  CASES  REPORTED  cxxi 

Page 

Wyrick;  Corcoran  v.   923 

Wyrick  v.  Parton 995 

Wyrick;  Warden  v.    1036 

Yater  v.  United  States 901 

Yates  v.  Aiken 896 

Yellen  v.  Colorado 1036 

Yellow  Cab  Co.;  Arrow  Northwest,  Inc.  v. 903 

Ylst;  Thomas  v.   869 

Yoka;  McGlory  u 997,1077 

Yolo  County;  MacDonald,  Sommer  &  Prates  u 917 

York  v.  First  Presbyterian  Church  of  Anna 865 

York;  Lepiscopo  v. 1105 

Yorkshire  Wine  &  Spirits  v.  McLaughlin 811 

Young  v.  Arkansas 1070 

Young  v.  Community  Nutrition  Institute 1018 

Young  v.  Great  Atlantic  &  Pacific  Tea  Co 947 

Young  v.  Illinois 833 

Young  v.  Immigration  and  Naturalization  Service 996 

Young;  Krodel  v.     817 

Young  v.  Lane 951 

Young  v.  Wainwright 859 

Yurky;  Eichenlaub  v.          1049 

Zabel  v.  United  States     1019 

Zant;  Brown  v. 860,990 

Zeiler  v.  Ohio  High  School  Athletic  Assn 818 

Zellers  v.  Duckworth 952 

Zeltner  v.  Fauver 838 

Zenith  Radio  Corp.;  Matsushita  Electric  Industrial  Co.  v.     .    .      .         941 

Zeno  v.  Maggio 1085 

Zerman  v.  Avant  Garde  Condominium  Assn. ,  Inc 895,1077 

Zerman  v.  Jacobs      845,1026 

Zerman  v.  Melton 845,1026 

Zerman  v.  Prudential-B ache  Securities 845,1026 

Zerman  v.  White  .    .  ..      895,1077 

Zheng  v.  United  States 1060 

Zimmerman  v.  Fulcomer         .  997 

Zimmer  Paper  Products  Inc.  v.  Berger  &  Montague,  P.  C.    .  .      .  902 

Zinn;  Rock  v. 1001 

Zlomke  v.  Flying  Tiger  Line,  Inc .  .    833,1014 

Zoeller  v.  United  States .      .  .         921 

Zucker  v.  United  States  .    .          .  842 

Zuger,  In  re  .  814 

Zuger  v.  United  States  804,805 

Zurica  v.  United  States  1104 


TABLE  OF  CASES  CITED 


Page 

Abbate  v.  United  States,  359 

U.S.  187  89,  92,  94,  95,  99 

Abel  v.  United  States,  362  U.S. 

217  984 

Adams  v.  United  States  ex  rel. 

McCann,  317  U.S.  269  40 

Addington  v.  Texas,  441  U.S. 

418  881 

Adelphi  Hospital  Corp.,  In  re, 

579  F.  2d  726  514 

Aetna  Life  Ins.  Co.  v.  Haworth, 

300  U.S.  227  933 

Agins  v.  Tiburon,  447  U.S.  255  126 
Aguilar  v.  Texas,  378  U.S.  108  984 
Akins  v.  Texas,  325  U.S.  398  276 
Alabama  v.  Pugh,  438  U.S.  781  221 
Alexander  v.  Louisiana,  405 

U.S.  625  261 

Alexander  v.  Smith.  582  F.  2d 

212  109 

Alfred  L.  Snapp  &  Son,  Inc.  v. 

Puerto  Rico  ex  rel.  Barez,  458 

U.S.  592  93 

Allen  v.  McCurry,  449  U.S.  90  523 
Allen  v.  State,  253  Ga.  390  402 
Allen  v.  United  States,  164  U.S. 

492  876-878 

Amaro  v.  Continental  Can  Co. , 

724  F.  2d  747  1087 

Amato  v.  Bernard,  618  F.  2d 

559  1087 

Ambach  v.  Norwick,  441  U.S. 

68  958,  959 

American  Surety  Co.  v.  Pauly, 

170  U.S.  133  456 

Anderson  v.  Bessemer  City,  470 

U.S.  564  388,  406,  936,  940 

Anderson  v.  Celebrezze,  460 

U.S.  780  1301,  1302 

Anderson  v.  Charles,  447  U.S. 

404  291 

Angel  v.  Bullington,  330  U.S. 

183  525 


Page 

Appleyard  v.  Wallace,  754  F.  2d 
955  67 

Arizona  v.  Rumsey,  467  U.S. 
203  269,  877 

Arkansas  Electric  Cooperative 
Corp.  v.  Arkansas  Public 
Service  Comm'n,  461  U.S. 
375  415,  422,  433 

Arlington  Heights  v.  Metropol- 
itan Housing  Development 
Corp.,  429  U.S.  252  275,  330 

Armstrong  v.  Manzo,  380  U.S. 
545  155 

Ameson  v.  Olsen,  270  N.  W.  2d 
125  893,  894 

Arnold  v.  North  Carolina,  376 
U.S.  773  261 

Ashcraf t  v.  Tennessee,  322  U.  S. 
143  109,  110 

Ashwander  v.  TVA,  297  U.S. 
288  128,  222 

Atascadero  State  Hospital  v. 
Scanlon,  473  U.S.  234  74, 

78,  79,  81 

Atlantic  Coast  Line  R.  Co.  v. 
Locomotive  Engineers,  398 
U.S.  281  525 

Atlas  Roofing  Co.  v.  Occupa- 
tional Safety  and  Health 
Comm'n,  430  U.S.  442  6 

Baker  v.  Carr,  369  U.S.  186      1053 

Baker  v.  McCollan,  443  U.S. 
137  333,  339,  357 

Baker  v.  United  States,  131 
U.S.  App.  D.  C.  7  440 

Ballard  v.  Spradley,  557  F.  2d 
476  37,  44,  48 

Bank  of  Columbia  v.  Okely,  4 
Wheat.  235  331 

Bank  of  United  States  v.  Daniel, 
12  Pet.  32  93 

Baptist  Hospital  of  Southeast 
Tex.  v.  Baber,  672  S.  W.  2d 
296  893,  894 

CXXIII 


CX3OV 


TABLE  OF  CASES  CITED 


Page 

Barefoot  v.  Estelle,  463  U.S. 

880  883,  885,  1041 

Barina  v.  Gulf  Trading  &  Trans- 
portation Co.,  726  F.  2d  560    910 
Barker  v.  Wingo,  407  U.S. 
514  147,  247,  248,  251,  313- 

316,  318,  321,  324-326 
Barr  v.  Matteo,  360  U.S.  564     201, 

207 

Barrowclough  v.  Kidder,  Pea- 
body  &  Co.,  752  F.  2d  923     1087 
Bartkus  v.  Illinois,  359  U.S. 

121  89,  93,  98,  99 

Baumgartner  v.  United  States, 

322TJ.S.  665  113 

Beans  v.  Black,  757  F.  2d  933       59 
Beatty  v.  United  States,  389 

U.S.  45  175 

Beavers  v.  Haubert,  198  U.S. 

77  313 

Beck  v.  Alabama,  447  U.S. 

625  385,  400 

Beecher  v.  Alabama,  389  U.S. 

35  110 

Bell  v.  Burson,  402  U.S.  535       331 
Bell  v.  Wolfish,  441  U.S.  520     355, 

358 

Beltran  v.  Myers,  701  F.  2d  91     67 
Benton  v.  Maryland,  395  U.S. 

784  97,  337 

Berger  v.  United  States,  295 

U.S.  78  283 

Bernal  v.  Fainter,  467  U.S.  216  959 
Bilbrey  v.  Brown,  738  F.  2d 

1462  910 

Bishop  v.  Wood,  426  U.S.  341      13, 
222,  224,  226,  342 
Bivens  v.  Six  Unknown  Fed. 
Narcotics  Agents,  403  U.S. 
388  198,  201,  207,  211,  272 

B.    K.    Instrument,   Inc.   v. 

United  States,  715  F.  2d  713  933 
Blackburn  v.  Alabama,  361  U.S. 

199  109,  116,  885 

Blake  v.  Zant,  737  F.  2d  925;  513 

F.  Supp.  772  999 

Block  v.  Rutherford,  468  U.S. 

576  355 

Blumenthal  v.  United  States, 
332  U.S.  539  450,  451,  478 


Page 

Board  of  Curators,  Univ.  of  Mo. 

v.  Horowitz,  435  U.S.  78         222, 
225,  226,  230 
Board  of  Ed.  v.  Allen,  392  U.S. 

236  492 

Board  of  Ed.  v.  Pico,  457  U.S. 

853  959 

Board  of  Governors,  FRS  v.  Di- 
mension Financial  Corp. ,  474 

U.S.  361  512 

Board  of  Regents  v.  Roth,  408 

U.S.  564  222,  224,  229 

Bob  Jones  Univ.  v.   United 

States,  461  U.S.  574  137 

Booker  v.  Grand  Rapids  Medi- 
cal College,  156  Mich.  95          222 
Bose  Corp.  v.  Consumers  Union 

of  United  States,  Inc.,  466 

U.S.  485  113,  114 

Boulden  v.  Holman,  394  U.S. 

478  111 

Bounds  v.  Smith,  430  U.S.  817  210 
Boyd  v.  Boyd,  252  N.  Y.  422  401 
Boykin  v.  Alabama,  395  U.S. 

238  56 

Bradley  v.  Fisher,  13  Wall.  335  199 
Brandon  v.  Holt,  469  U.S.  464  221 
Brantley  v.  McKaskle,  722  F. 

2d  187  109 

Brewer  v.  Williams,  430  U.S. 

387  170,  175,  191,  192 

Bricker  v.  Michigan  Parole  Bd. , 

405  F.  Supp.  1340  204 

Briscoe  v.  LaHue,  460  U.S. 

325  200,  201 

Britt  v.  Simi  Valley  Unified 

School  Dist.,  708  F.  2d  452      146 
Broadrick  v.  Oklahoma,  413 

U.S.  601  1071 

Brown  v.  Board  of  Ed.,  347 

U.S.  483  958 

Brown  v.  Herald  Co.,  464  U.S. 

928  812,  813, 

899,  993,  1003,  1048 
Brown  v.  Illinois,  422  U.S.  590  26 
Brown  v.  Mississippi,  297  U.S. 

278  109 

Brown  v.  Ohio,  432  U.S.  161        87, 

97 
Brown  v.  O'Keefe,  300  U.S.  598  508 


TABLE  OF  CASES  CITED 


cxxv 


Page 

Bruno  v.   United  States,  308 

U.S.  287  471 

Bruton  v.  United  States.  391 

U.S.  123  18,  449,  461 

Buck  v.  Bell,  274  U.S.  200  927 

Buford  v.  State,  403  So.  2d 

943  880 

Bullington  v.  Missouri,  451  U.S. 

430  877,  878 

Bullock  v.  Lucas,  743  F.  2d 

244  871 

Burnet  v.  Coronado  Oil  &  Gas 

Co.,  285  U.S.  393  266,  268,  460 
Burt  v.  Abel,  585  F.  2d  613  989 
Bushv.  Kentucky,  107  U.S.  110  261 
Bush  v.  Lucas,  462  U.S.  367  272 
Bush  v.  Muncy,  659  F.  2d  402  930 
Butner  v.  United  States,  440 

U.S.  48  14,  224 

Butz  v.  Economou,  438  U.S. 

478  200-202,  206-208,  211,  212 
Cabell  v.  Chavez-Salido,  454 

U.S.  432  959 

Caldwell  v.  Mississippi,  472 

U.S.  320  394,  397,  399, 

400,  405,  873-875,  883, 
884,  887,  889,  890,  1091 
California  v.  Carney,  471  U.S. 

386  23 

California  v.  Green,  399  U.S. 

149  18,  20,  21,  23,  24 

California  v.  LaRue,  409  U.S. 

109  1071,  1072 

California  v.  Ramos,  463  U.S. 

992  400,  874 

Campbell  v.  U.  S.  District 

Court,  501  F.  2d  196  150,  151 
Carbo  v.  United  States,  364 

U.S.  611  39 

Carey  v.  O'Donnell,  165  U.S. 

App.  D.  C.  46  1109 

Carey  v.  Piphus,  435  U.S.  247  339 
Carroll  v.  United  States,  267 

U.S.  132  986 

Carson  v.  Maurer,  120  N.  H. 

925  893,  894 

Carter  v.  Jury  Comm'n  of 

Greene  County,  396  U.S.  320  262 
Carter  v.  Texas,  177  U.S.  442  261 
Cassell  v.  Texas,  339  U.S. 

282  261,  271,  274,  275 


Page 

Castaneda  v.  Partida,  430  U.S. 
482  259,  276,  279 

Caston  v.  Sears,  Roebuck,  & 
Co.,  Hattiesburg,  Miss.,  556 
F.  2d  1305  1036 

Chambers  v.  Florida,  309  U.S. 
227  109 

Chambers  v.  Maroney,  399  U.S. 
42  986 

Champlin  Refining  Co.  v.  Cor- 
poration Comm'n  of  Okla., 
286  U.S.  210  419,  426,  433,  434 

Chapman  v.   California,  386 
U.S.  18     269,  271,  445,  446,  460, 
461, 472-474, 1096, 1097 

Chavis  v.  Rowe,  643  F.  2d  1281    199 

Chemical  Mfrs.  Assn.  v.  Natu- 
ral Resources  Defense  Coun- 
cil, Inc.,  470  U.S.  116  131,  505 

Chevron  Oil  Co.  v.  Huson,  404 
U.S.  97  910,  911 

Chevron  U.  S.  A.  Inc.  v.  Natu- 
ral Resources  Defense  Coun- 
cil, Inc.,  467  U.S.  837  131, 
368,  473 

Chiarella  v.  United  States,  445 
U.S.  222  1074 

Chicago  Rapid  Transit  Co.,  In 
re,  129  F.  2d  1  500,  511,  512 

Chisholm  v.  Georgia,  2  Dall.  419     78 

Cities  Service  Gas  Co.  v.  Peer- 
less Oil  &  Gas  Co.,  340  U.S. 
179  416,  419,  434,  435 

City.     See  name  of  city. 

Ciucci  v.  Illinois,  356  U.S.  571     103 

Clark  v.  State,  363  So.  2d  331     288 

Clark  v.  United  States,  289 
U.S.  1  189 

Clearfield  Trust  Co.  v.  United 
States,  318  U.S.  363  934 

Cleburne  v.  Cleburne  Living 
Center,  473  U.S.  432  927 

Cody  v.  Morris,  623  F.  2d  101     931 

Coker  v.  Georgia,  433  U.S. 
584  403,  929 

Colbeth  v.  Wilson,  554  F.  Supp. 
539  67 

Cole  v.  Arkansas,  333  U.S. 
196  385,  388,  398,  399 

Coleman  v.  Alabama,  399  U.S. 
1  170,  269 


CXXVI 


TABLE  OF  CASES  CITED 


Page 

Colorado  River  Water  Con- 
servation Dist.   v.   United 

States,  424  U.S.  800  966 

Committee  for  Public  Ed.  & 

Religious  Liberty  v.  Nyquist, 

413  U.S.  756  485, 

487,  488,  490-492 
Commonwealth.      See  also 

name  of  Commonwealth. 
Commonwealth  v.  Dixon,  344 

Pa.  Super.  293  32 

Commonwealth  v.  Drumgoole, 

341  Pa.  Super.  468  32 

Commonwealth  v.  Green,  396 

Pa.  137  928 

Commonwealth  v.  Hutchinson, 

343  Pa.  Super.  596  32 

Commonwealth  v.  Mahdi,  388 

Mass.  679  295 

Connecticut  v.  Johnson,   460 

U.S.  73  385,  461,  464 

Connecticut  Bd.  of  Pardons  v. 

Dumschat,  452  U.S.  458  252 

Connors  v.  United  States,  158 

U.S.  408  456 

Coolidge  v.  New  Hampshire, 

403  U.S.  443  984,  987 

Costello  v.  United  States,  350 

U.S.  359  202,  277 

County.     See  name  of  county. 
Coyle  v.  Oklahoma,  221  U.S. 

559  89,  93 

Crawford  v.  State,  377  So.  2d 

145  189 

Crowell  v.  Benson,  285  U.S.  22  154 
Crowell  v.  Randell,  10  Pet.  368  87 
Culombe  v.  Connecticut,  367 

U.S.  568  112,  116,  119 

Cupp  v.  Naughten,  414  U.S. 

141  147,  301 

Curtis  v.  Everette,  489  F.  2d 

516  348 

Curtis  Publishing  Co.  v.  Butts, 

388  U.S.  130  954,  960,  961 

Cuyler  v.  Sullivan,  446  U.S.  335  146 
Daniels  v.  Williams,  474  U.S. 

327      347,  348,  350,  355,  356,  360 
Davidson  v.  Cannon,  474  U.S 

344  341,  342 

Davidson  v.  New  Orleans,  96 
U.S.  97  331 


Page 

Davis  v.  Alaska,  415  U.S.  308      19, 

1111 

Davis  v.  Georgia,  429  U.S.  122  263 

Davis  v.  North  Carolina,  384 
U.S.  737  111 

Davis  v.  Passman,  442  U.S.  228  272 

Davis  v.  United  States,  417 
U.S.  333  930,  931 

Dayton  Bd.  of  Ed.  v.  Brinkman, 
443  U.S.  526  113 

DeFunis  v.  Odegaard,  416  U.S. 
312  120 

Delaware  v.  Fensterer,  474 
U.S.  15  1051 

DelCostello  v.  Teamsters,  462 
U.S.  151  910,  911 

Dent  v.  West  Virginia,  129  U.S. 
114  331 

Deskins  v.  Commonwealth,  512 
S.  W.  2d  520  189 

Diematic  Mfg.  Corp.  v.  Pack- 
aging Industries,  Inc.,  516 
F.  2d  975  1109 

Dillingham  v.  United  States, 
423  U.S.  64  322,  323 

Dobbert  v.  Wainwright,  468 
U.S.  1231  1076 

Donnelly  v.  DeChristoforo,  416 
U.S.  637  301 

Donovan  v.  Allied  Industrial 
Workers  (Midland),  760  F. 
2d  783  6 

Donovan  v.  International 
Union,  Allied  Industrial 
Workers  (Whirlpool),  722  F. 
2d  1415  6,  7 

Donovan  v.  Local  962,  Inter- 
national Chemical  Workers 
Union  (Englehard),  748  F.  2d 
1470  6 

Donovan  v.  Occupational  Safety 
and  Health  Review  Comm'n 
(Mobil  Oil),  713  F.  2d  918  6,  7 

Donovan  v.  Oil,  Chemical  and 
Atomic  Workers  Interna- 
tional (American  Petrofina), 
718  F.  2d  1341  6 

Donovan  v.  United  Steelwork- 
ers  of  America  (Monsanto), 
722  F.  2d  1158  6 


TABLE  OF  CASES  CITED 


CXXVII 


Page 

Doran  v.  Salem  Inn,  Inc.,  422 

U.S.  922  1072 

Douglas  v.  Jeannette,  319  U.S. 

157  337 

Doyle  v.  Ohio,  426  U.S.  610  285, 

289-300 
Duke  Power  Co.  v.  Carolina 

Environmental  Study  Group, 

Inc.,  438  U.S.  59  894 

Dunaway  v.  New  York,  442 

U.S.  200  26 

Dun  &  Bradstreet,  Inc.  v. 

Greenmoss  Builders,   Inc., 

472  U.S.  749  963 

Duncan  v.  Louisiana,  391  U.S. 

145  337,  384 

Dutton  v.  Evans,  400  U.S.  74  18 
Eaton  v.  Price,  360  U.S.  246  1052 
Eddings  v.  Oklahoma,  455  U.S. 

104  396,  870, 

878,  879,  882,  883,  1040 
Edelman  v.  Jordan,  415  U.S. 

651  67-70,  73 

Edmonds  v.  Compagnie  Gener- 

ale  Transatlantique,  443  U.S. 

256  501 

Edwards  v.  United  States,  564 

F.  2d  652  931 

Elkins  v.  United  States,  364 

U.S.  206  102 

Energy  Reserves  Group,  Inc.  v. 

Kansas  Power  &  Light  Co., 

459  U.S.  400  435 

Engle  v.  Isaac,  456  U.S.  107  143 
Enmund  v.  Florida,  458  U.S. 

782  378, 

381,  382,  384-^05,  407, 
408,  866,  869-872,  929 
Escobedo  v.  Illinois,  378  U.S. 

478  170 

Estelle  v.  Gamble,  429  U.S. 

97  330,  333,  354,  357,  358 

Eubanks  v.  Louisiana,  356  U.S. 

584  261 

Evans  v.  Dillahunty,  711  F.  2d 

828  201 

Evans  v.  Meyer,  742  F.  2d  371  59, 

1053 
Everson  v.  Board  of  Ed.,  330 

U.S.  1  492 

Evitts  v.  Lucey,  469  U.S.  387  319 


Page 

Ex  parte.     See  name  of  party. 
Exxon  Corp.  v.  Eagerton,  462 

U.S.  176  429,  432 

Fahy  v.  Connecticut,  375  U.S. 

85  1096 

Farrell  v.  State,  101  So.  2d  130  286 
Fasano  v.  Hall,  615  F.  2d  555  931 
Fast  v.  School  Dist.  of  City  of 

Ladue,  712  F.  2d  379  989 

Fay  v.  Noia,  372  U.S.  391  282 

Ferri  v.  Ackerman,  444  U.S. 

193  359 

Fetterman  v.  University  of 

Conn.,  192  Conn.  539  1038 

First  Bancorporation  v.  Board 

of  Governors,  728  F.  2d  434  364 
Flast  v.  Cohen,  392  U.S.  83  270 
Fletcher  v.  Weir,  455  U.S. 

603  290,  291,  300 

Florida  v.  Meyers,  466  U.S. 

380  1050,  1051 

Florida  v.  Rodriguez,  469  U.S. 

1  1051 

Florida  Dept.  of  Health  v.  Flor- 
ida Nursing  Home  Assn. ,  450 

U.S.  147  221 

Ford  v.  Allen,  728  F.  2d  1369      37, 

44 

Ford  v.  Carballo,  577  F.  2d  404   38, 

44 
Forte  v.  State,  686  S.  W.  2d 

744  1029 

Francis  v.  Franklin,  471  U.S. 

307  383 

Francis  v.  Henderson,  425  U.S. 

536  279 

Franklin  v.  State,  257  So.  2d 

21  1075 

Franks  v.  Delaware,  438  U.S. 

154  289 

Frazier  v.  Cupp,  394  U.S.  731  111 
Fuentes  v.  Shevin,  407  U.S.  67  337 
Furman  v.  Georgia,  408  U.S. 

238  867,  927,  928,  973,  1040 

Gallegos  v.  Colorado,  370  U.S. 

49  116 

Garcia  v.  San  Antonio  Metropol- 
itan Transit  Authority,  469 

U.S.  528  81,  269 

Garcia  v.  United  States,  469 

U.S.  70  510 


CXXVIII 


TABLE  OF  CASES  CITED 


Page 

Garcia  v.  Wilson,  731  F.  2d 

640  1107 

Gardner  v.  Florida,  430  U.S. 

349  400,  885 

Gates  v.  Spinks,  771  F.  2d 

916  1107 

Germanic,  The,  196  U.S.  589  353 
Gerstein  v.  Pugh,  420  U.S.  103  270 
Gertz  v.  Robert  Welch,  Inc., 

418  U.S.  33        953,  954,  961-963 
Gibson  v.  Mississippi,  162  U.S. 

565  261 

Gideon  v.  Wainwright,  372  U.S. 

335  169,  170,  271,  461 

Giglio  v.  United  States,  405 

U.S.  150  974 

Giordenello  v.  United  States, 

357  U.S.  480  984 

Glover  v.  United  Grocers,  Inc., 

746  F.  2d  1380  910 

Godfrey  v.  Georgia,  446  U.S. 

420  928 

Goss  v.  Lopez,  419  U.S.  565      222, 

339 
Grafton  v.  United  States,  206 

U.S.  333  89,  90 

Grand  Rapids  School  Dist.  v. 

Ball,  473  U.S.  373    485,  487,  489 
Graves   v.    Smith's  Transfer 

Corp.,  736  F.  2d  819  910 

Gray  v.  Swenson,  430  F.  2d  9  999 
Greathouse  v.  United  States, 

655  F.  2d  1032  931 

Great  Lakes  Co.  v.  Huffman, 

319  U.S.  293  72,  73 

Green  v.  Carlson,  581  F.  2d  669  195 
Greenfield  v.  State,  337  So.  2d 

1021  287,  288 

Greenfield  v.  State,  364  So.  2d 

885  288 

Gregg  v.  Georgia,  428  U.S. 
153  261,  270,  387, 

393,  395,  396,  404,  866, 
867,  876,  888,  891,  911, 
925-928,  935,  973-975, 
988,  989,  1000,  1014, 
1026,  1038-1040,  1073, 
1074,  1094,  1110,  1113 


Greyhound  Lines,  Inc.  v.  Wil- 
hite,  474  U.S.  910 


911 


Page 

Grieco  v.  Meachum,  533  F.  2d 
713  189 

Griffin  v.  California,  380  U.S. 
609  291 

Griswold  v.  Connecticut,  381 
U.S.  479  229,  230 

Groppi  v.  Leslei,  404  U.S.  496  337, 


Haas  v.  State,  103  Ohio  St.  1  143 
Halderman  v.  Pennhurst  State 

School  &  Hospital,  446  F. 

Supp.  1295  927 

Hall  v.  State,  47  Md.  App.  590  189 
Hamilton  v.  Alabama,  368  U.S. 

52  170 

Hamilton  v.  City  of  Overland 

Park,  730  F.  2d  613  1106-1108 
Hampton  v.  Chicago,  484  F.  2d 

602  343,  359 

Hans  v.  Louisiana,  134  U.S.  1       78 

Haring  v.  Prosise,  462  U.S.  306    13, 

224,  343,  886 

Harlow  v.  Fitzgerald,  457  U.S. 

800  201,  207 

Harrah  Independent  School 

Dist.  v.  Martin,  440  U.S.  194  230 
Harrington  v.  California,  395 

U.S.  250  269 

Harris  v.  Nelson,  394  U.S.  286  42 
Hatch  v.  Oklahoma,  662  P.  2d 

1377  402 

Haynes  v.  Washington,  373 

U.S.  503  109,  110,  114,  117 

Heckler  v.  Chaney,  470  U.S. 

821  5 

Heiney  v.  Florida,  469  U.S. 

920  881,  882 

Heles  v.  South  Dakota,  530  F. 

Supp.  646  1029 

Henry  v.  Mississippi,  379  U.S. 

443  886 

Hicks  v.  Oklahoma,  447  U.S. 

343  387,  405 

Hill  v.  Texas,  316  U.S.  400  259, 

261 
Hill  v.  United  States,  368  U.S. 

424  930 

Hillery,  In  re,  71  Cal.  2d  857; 

Crim.  No.  20424  (Cal.)  256 

Hillery  v.  Sumner,  496  F.  Supp. 

632  265 


TABLE  OF  CASES  CITED 


CXXIX 


Page 

Hillsdale  Foundry  Co.,  In  re,  1 

BCD  195  504 

Hobby  v.  United  States,  468 

U.S.  339  272,  273,  281 

Hodel  v.  Virginia  Surface  Min- 
ing &  Reclamation  Assn.,  452 

U.S.  264  126 

Hoffa  v.  United  States,  385 

U.S.  293  185 

Holland  v.  United  States,  209  F. 

2d  516  880 

Holloway  v.  Arkansas,  435  U.S. 

475  474 

Holmgren  v.  United  States,  217 

U.S.  509  456 

Honeycutt  v.  Ward,  612  F.  2d 

36  281 

Hudson  v.  Palmer,  468  U.S. 

517  203,  328, 

331,  333,  339,  356,  358 
Huff  v.  United  States,  599  F.  2d 

860  931 

Huffman  v.  Pursue,  Ltd.,  420 

U.S.  592  966 

Hull,  Ex  parte,  312  U.S.  546      207 
Hummel  v.  Commonwealth,  219 

Va.  252  190 

Humphrey  v.  Cady,  405  U.S. 

504  257 

Huntley  v.  Community  School 

Bd.  of  Brooklyn,  579  F.  2d 

738  989 

Hurtado  v.  California,  110  U.S. 

516  331 

Hutchinson  v.   Proxmire,   443 

U.S.  Ill  961,  964 

Illinois  v.  Gates,  462  U.S.  213      87, 

984,  986 

Illinois  v.  Vitale,  447  U.S.  410      87 
Imbler  v.  Pachtman,  424  U.S. 

409  200,  967 

Ingraham  v.  Wright,  430  U.S. 

651  205,  328,  331, 

335,  346,  352,  353,  358 
In  re.     See  name  of  party. 
International  Harvester  Co.  v. 

Deere  &  Co.,  623  F.  2d  1207  910 
Inwood  Laboratories,   Inc.   v. 

Ives  Laboratories,  Inc.,  456 

U.S.  844  1096 

Jackson  v.  Denno,  378  U.S. 

368  117,  391,  885,  887 


Page 

Jackson  v.  Joliet,  465  U.S.  1049  329 

Jackson  v.  Virginia,  443  U.S. 
307  881 

Jenkins  v.  Anderson,  447  U.S. 
231  291,  294 

Jihaad  v.  O'Brien,  645  F.  2d 
556  199 

Johnson  v.  Avery,  393  U.S.  483  207 

Johnson  v.  Glick,  481  F.  2d  1028  348 

Johnson  v.  St.  Vincent  Hospi- 
tal, Inc.,  404  N.  E.  2d  585  893 

Johnson  v.  United  States,  333 
U.S.  10  984 

Johnson  v.  Zerbst,  304  U.S. 
458  169 

Johnston  v.  Corinthian  Televi- 
sion Corp.,  583  P.  2d  1101  959 

Jones  v.  Alabama,  470  U.S. 
1062  876 

Jones  v.  North  Carolina  Pris- 
oners' Labor  Union,  433  U.S. 
119  209 

Jones  v.  State  Bd.  of  Medicine, 
97  Idaho  859  893 

Jones,  Inc.,  In  re,  1  BCD 
277  501,  511 

Jordan  v.  Trainor,  563  F.  2d 
873  70,  75 

Jordan  v.  Weaver,  472  F.  2d 
985;  No.  71  C  70  (ND  111.)  69 

Juidice  v.  Vail,  430  U.S.  327        967 

Jurek  v.  Texas,  428  U.S.  262     404, 

Kaiser  Aetna  v.  United  States, 

444  U.S.  164  127 

Kann  v.  United  States,  323  U.S. 

88  451 

Kentucky  v,  Graham,  473  U.S. 

159  221 

Keyishian  v.  Board  of  Regents, 

385  U.S.  589  226,  230 

Kirby  v.  Illinois,  406  U.S. 

682  170,  1028 

Kirchberg  v.  Feenstra,  450 

U.S.  455  914,  915 

Klopfer  v.  North  Carolina,  386 

U.S.  213  311 

Kothe  v.  R.  C.  Taylor  Trust,  280 

U.S.  224  508 

Kotteakos  v.  United  States,  328 

U.S.  750  446- 

450,  457,  458,  461,  463- 
465,  471,  472,  475-478 


cxxx 


TABLE  OF  CASES  CITED 


Page 

Kremer  v.  Chemical  Construc- 
tion Corp.,  456  U.S.  461  523 
Kross  v.  Western  Electric  Co. , 

701  F.  2d  1238  1087 

Krulewitch  v.  United  States, 

336  U.S.  440  475 

Larder  v.  South  Carolina,  474 

U.S.  25  1051 

LaVallee  v.  Delle  Rose,  410 

U.S.  690  112 

Layne  v.  Vinzant,  657  F.  2d  468  357 
Leary  v.  United  States,  395 

U.S.  6  1074 

Lee  v.  Washington,  390  U.S. 

333  207 

Lemon  v.  Kurtzman,  403  U.S. 

602  485,  486,  490-493 

Leroy  v.  Great  Western  United 

Corp.,  443  U.S.  173    13,  224,  342 
LeRoy  Fibre  Co.  v.  Chicago, 

M.  &  St.  P.  R.  Co.,  232  U7S. 

340  335 

Lewis  Jones,  Inc.,  In  re,  1  BCD 

277  501,  511 

Liberty  Mutual  Ins.  Co.  v.  Wet- 

zel,  424  U.S.  737  916 

Link  v.  Wabash  R.  Co.,  370 

U.S.  626  147 

Lockett  v.   Ohio,  438  U.S. 

586  396,  400,  403, 

404,  871,  879, 1088, 1091 
Logan  v.  Zimmerman  Brush 

Co.,  455  U.S.  422      155,  339,  360 
Lo— Ji  Sales,  Inc.  v.  New  York, 

442  U.S.  319  984 

Lorain  Journal  Co.  v.  Milkov- 

ich,  449  U.S.  966  956, 

Lorin  Corp.  v.  Goto  &  Co.,  700 

F.  2d  1202  146,  148,  156 

Loudermill  v.  Cleveland  Bd.  of 

Ed.,  470  U.S.  532  339 

Lummus  Co.  v.  Commonwealth 

Oil  Refining  Co.,  297  F.  2d 

80  1109 

Lynch  v.  Donnelly,  465  U.S. 

668  486,  489,  493 

Machibroda  v.  United  States, 

368  U.S.  487  56 

Machinists  v.  Wisconsin  Em- 
ployment Relations  Comm'n, 
427  U.S.  132  422 


Page 

Maggio  v.  Fulford,  462  U.S. 

Ill  8,  12, 

23,  27, 113, 116-118,  937 
Maish  v.  Arizona,  164  U.S.  599  456 
Malloy  v.  Hogan,  378  U.S. 

1  110,  337 

Manhattan  Life  Ins.  Co.  v.  Co- 
hen, 24  U.S.  123  289 
Mapp  v.  Ohio,  367  U.S.  643  337 
Marrese  v.  American  Academy 

of  Orthopaedic  Surgeons,  470 

U.S.  373  523,  525 

Mars  v.  United  States,  615  F.  2d 

704  931 

Marshall  v.  Lonberger,  459 

U.S.  422  113,  115,  117,  118,  401 
Marshall  v.  Sun  Petroleum 

Products  Co.,   622  F.  2d 

1176  6,  7 

Martinez  v.  California,  444  U.S. 

277  200,  343,  359 

Mary  v.  Ramsden,  635  F.  2d 

590  198,  199 

Maryland  v.  Louisiana,  451 

U.S.  725  432 

Massachusetts  v.  Upton,  466 

U.S.  727  1051 

Massiah  v.  United  States,  377 

U.S.  201  172,  174- 

176,  178-180,  185-190 
Mathews  v.  Weber,  423  U.S. 

261  152 

Matzker  v.  Herr,  748  F.  2d 

1142  357 

Mayola  v.  Alabama,  623  F.  2d 

992  281 

McCabe  &  Steen  Constr.  Co.  v. 

Wilson,  209  U.S.  275  456 

McCarthy  v.  Manson,  714  F.  2d 

234  146,  149 

McClung  v.  Silliman,  6  Wheat. 

598  36,  41 

McCulloch  v.  Maryland,  4 

Wheat.  316  93,  332 

McElroy  v.  United  States,  164 

U.S.  76  444,  445,  448, 

455-457,  462-464,  466, 
467,  470,  471,  475,  476 
McGautha  v.  California,  402 

U.S.  183  396 


TABLE  OF  CASES  CITED 


CXXXI 


Page 

Mclntire  v.  Wood,  7  Cranch 

504  36,  41 

McKay  v.  Hammock,  730  F.  2d 

1367  1107 

McMann  v.  Richardson,  397 

U.S.  759  56-62 

McNeese  v.  Board  of  Ed.,  373 

U.S.  668  338 

Mealer  v.  Jones,  741  F.  2d 

1451  185,  190 

Meek  v.  Pittenger,  421  U.S. 

349  488 

Merrill  Lynch,  Pierce,  Fenner 

&  Smith,  Inc.  v.  Curran,  456 

U.S.  353  511 

Middlesex  County  Ethics  Com- 
mittee v.  Garden  State  Bar 

Assn.,  457  U.S.  423  966 

Migra  v.  Warren  City  School 

Dist.  Bd.   of  Ed.,  465  U.S. 

75  523,  526 

Milkovich  v.  Lorain  Journal 

Co.,  65  Ohio  App.  2d  143  956 
Miller  v.  Solem,  728  F.  2d 

1020  357 

Miller  v.  Twomey,  479  F.  2d 

701  340 

Milliken  v.  Bradley,  433  U.S. 

267  68,  80 

Mincey  v.  Arizona,  437  U.S. 

385  109,  110,  116 

Miranda  v.  Arizona,  384  U.S. 

436  26, 84, 106, 108, 110, 117, 

273,  285,  286,  289-300, 
967,  1029,  1051,  1052 
Mismash  v.  Murray  City,  730  F. 

2d  1366  1107,  1108 

Missouri  v.  Kansas  Natural  Gas 

Co.,  265  U.S.  298  429 

MitcheU  v.  Forsyth,  472  U.S. 

511  207 

MitcheU  v.  Scully,  746  F.  2d  951  59 
Mitchum  v.  Foster,  407  U.S. 

225  359,  526 

Moe  v.  Confederated  Salish  and 

Kootenai  Tribes,  425  U.S. 

463  11,  12 

Molony  v.  Boy  Comics  Publish- 
ers, 277  App.  Div.  166  961 
Monell  v.  New  York  City  Dept. 

of  Social  Services,  436  U.S. 

658  70 


Page 

Monroe  v.   Pape,   365  U.S. 

167  338,  355,  359,  360 

Moore  v.  East  Cleveland,  431 

U.S.  494  226,  229,  337 

Moore  v.  Illinois,  14  How.  13  88, 

98,  100 

Moore  v.  Sims,  442  U.S.  415  966 
Moragne  v.  States  Marine 

Lines,  Inc.,  398  U.S.  375  115 
Morrissey  v.  Brewer,  408  U.S. 

471  204 

Mueller  v.  Allen,  463  U.S. 

388  485,  490-493 

Mullaney  v.  Wilbur,  421  U.S. 

684  289 

Murphy  v.  Waterfront  Comm'n, 

378  U.S.  52  102 

Murray's  Lessee  v.  Hoboken 

Land  &  Improvement  Co.,  18 

How.  272  332 

NAACP  v.  Button,  371  U.S. 

415  953 

NLRB  v.  Bildisco  &  Bildisco, 

465  U.S.  513  502,  510,  511,  514 
Neal  v.  Delaware,  103  U.S. 

370  261 

Nettles  v.  Wainwright,  677  F. 

2d  404  146 

New  Haven  Inclusion  Cases, 

399  U.S.  392  486 

New  Jersey  v.  Portash,  440 

U.S.  450  911 

New  Jersey  v.  T.  L.  O.,  469 

U.S.  325  964,  1050,  1051 

New  York  v.  Ricco,  56  N.  Y.  2d 

320  912 

New  York  State  Liquor  Author- 

ity  v.  Bellanca,  452  U.S. 

714  1071,  1072 

New  York  Times  Co.  v.  Sulli- 
van, 376  U.S.  254  953, 
954,  956-961,  963,  964 
Nielsen,  In  re,  131  U.S.  176  94 
Nielsen  v.  Oregon,  212  U.S. 

315  91,  100 

Nilson  Van  &  Storage  Co.  v. 

Marsh,  755  F.  2d  362  988 

Nixon  v.  Fitzgerald,  457  U.S. 

731  201 

Norris  v.  Alabama,  294  U.S. 

587  114 


CXXXEI 


TABLE  OF  CASES  CITED 


Page 

North  Carolina  v.  Alford,  400 

U.S.  25  56 

North  Carolina  v.  Pearce,  395 

U.S.  711  29,  30 

Northern  Natural  Gas  Co.  v. 

State  Corporation  Comm'n  of 

Kan.,  372  U.S.  84  411, 

415,  417,  419,  420,  422, 
423,  429-433,  437 
Northern  Pipeline  Co.  v.  Mara- 
thon Pipeline  Co.,  458  U.S. 

50  154 

Odom  v.  State,  403  So.  2d  936    877 

Ohio  v.  Kovacs,  469  U.S.  274     502, 

508,  509,  517 

Ohio  v.  Roberts,  448  U.S. 

56  18-20 

Ohio  ex  rel.  Eaton  v.  Price,  360 

U.S.  246  1052 

Oil,  Chem.  &  Atomic  Workers 

Int'l  v.  Occup.   Safety  & 

Health  Comm'n  (Am.  Cyna- 

mid),  217 U.S.  App.  D.  C.  137       6 
Oklahoma  City  v.  Tuttle,  471 

U.S.  800  157 

Oliver,  In  re,  333  U.S.  257          337 
One  Lot  Emerald  Cut  Stones  v. 

United  States,  409  U.S.  232    250 
On  Lee  v.  United  States,  343 

U.S.  747  157 

Oregon  v.  Elstad,  470  U.S. 

298  273 

Orr  v.  Orr,  440  U.S.  268      913,  914 
Ottenheimer  v.  Whitaker,  198 

F.  2d  289  500,  510-512 

Oyler  v.  Boles,  368  U.S.  448       277 
Palmer  v.  Massachusetts,  308 

U.S.  79  501 

Parham  v.  Hughes,  441  U.S. 

347  915 

Park  Motor  Mart,  Inc.  v.  Ford 

Motor   Co.,    616   F.    2d 

603  146,  149 

Parratt  v.  Taylor,  451  U.S. 

527  328-333,  337-339,  341, 

342,  346,  347,  350,  358 
Parsons  Steel,  Inc.  v.  First  Ala. 

Bank  of  Montgomery,  679  F. 

2d  242  520 

Patsy  v.  Florida  Bd.  of  Regents, 

457  U.S.  496          222,  1037,  1038 


Page 

Patterson  v.  Cuyler,  729  F.  2d 

925  108 

Patterson  v.  Mintzes,  717  F.  2d 

284  145,  146 

Patton  v.  Yount,  467  U.S. 

1025  112,  114,  116,  118 

Paul  v.  Davis,  424  U.S.  693  332 
Payne  v.  Virginia,  468  U.S. 

1062  1051 

Penn  Central  Transportation 

Co.  v.  New  York  City,  438 

U.S.  104  126 

Pennhurst  State  School  & 

Hospital  v.  Halderman,  465 

U.S.  89  68 

Pennsylvania  v.  Goldhanuner, 

474  U.S.  28  1051 

People  v.  Costello,  101  App. 

Div.  2d  244  190 

People  v.  DeFore,  242  N.  Y. 

13  192 

People  v.  Garcia,  36  Cal.  3d 


539 


402 


People  v.  Hillery,  34  Cal.  Rptr. 

853;  65  Cal.  2d  795  256 

People  v.  Hillery,  62  Cal.  2d 

692  256,  258,  275 

People  v.  Hillery,  10  Cal.  3d 

897  256,  267 

People  v.  Mealer,  57  N.  Y.  2d 

214  190 

People  v.  Schindler,  114  Cal. 

App.  3d  178  295 

People  v.  Vanda,  111  111.  App. 

3d  551  295 

Perez  v.  Dana  Corp.,  Parish 

Frame  Div.,  718  F.  2d  581  911 
Perry  v.  Sindermann,  408  U.S. 

593  222,  224 

Peters  v.  Kiff,  407  U.S.  493  279 
Peyton  v.  Rowe,  391  U.S.  54  280 
Phillips  Petroleum  Co.  v.  Wis- 
consin, 347  U.S.  672  419,  430 
Picard  v.  Connor,  404  U.S. 

270  257,  258 

Pierre  v.  Louisiana,  306  U.S. 

354  261 

Pierson  v.  Ray,  386  U.S.  547  199- 

201,  203 
Pike  v.  Bruce  Church,  Inc.,  397 

U.S.  137  416,  435 


TABLE  OF  CASES  CITED 


CXXXIII 


Page 

Poe  v.  Ullman,  367  U.S.  497  229 
Pollard  v.  United  States,  352 

U.S.  354  322 

Ponte  v.  Real,  471  U.S.  491  204 
Porm  v.  White,  762  F.  2d  635  357 
Powell  v.  Alabama,  287  U.S. 

45  57,  169,  172 

Powell  v.  Irving,  684  F.  2d  494  201 
Preiser  v.  Rodriguez,  411  U.S. 

475  209 

Presnell  v.  Georgia,  439  U.S. 

14  385,  387,  388,  398,  399 

Price  v.  Johnston,  334  U.S. 

266  42,  212 

Price  v.  State,  362  So.  2d  204  380 
Procunier  v.  Navarette,  434 

U.S.  555  201 

Proffitt  v.  Florida,  428  U.S. 

242  404 

Propper  v.  Clark,  337  U.S. 

472  13,  224,  342 

Public  Service  Comm'n  v.  Wy- 

coff  Co.,  344  U.S.  237  72,  73 

Public  Service  Comm'n  of  N.Y. 

v.  Mid-Louisiana  Gas  Co. ,  463 

U.S.  319  420,  432 

Puerto  Rico  v.  Shell  Co.,  302 

U.S.  253  88,  90 

Pulley  v.  Harris,  465  U.S. 

37  387,  974 

Pullman-Standard  v.  Swint,  456 

U.S.  273  113 

Quern  v.  Jordan,  440  U.S. 

332  67-71,  74-76,  79-81 

Raley  v.  Ohio,  360  U.S.  423  158, 

289 
Randall  v.  Lukhard,  729  F.  2d 

966  67 

Redding  v.  Fairman,  717  F.  2d 

1105  199 

Reddix  v.  Thigpen,  728  F.  2d 

705  382,  385,  402,  403 

Red  Lion  Broadcasting  Co.  v. 

FCC,  395  U.S.  367  139 

Reece  v.  Georgia,  350  U.S. 

85  57,  261 

Rescue  Army  v.  Municipal 

Court,  331  U.S.  549  490 

Revere  v.  Massachusetts  Gen- 
eral Hospital,  463  U.S.  239  358 


Page 

Rhodes  v.  Chapman,  452  U.S. 

337  355 

Richards  v.  United  States,  369 

U.S.  1  373 

Richardson  v.  Morris,  409  U.S. 

464  932 

Robinson  v.  California,  370  U.S. 

660  337 

Rochin  v.  California,  342  U.S. 

165  331 

Roe  v.  Wade,  410  U.S.  113  338 
Rogers  v.  Alabama,  192  U.S. 

2^6  261 

Rogers  v.  Richmond,  365  U.S. 

534  110,  391 

Rose  v.  Lundy,  455  U.S.  509  257, 

462,  474 
Rose  v.  Mitchell,  443  U.S. 

545  261,  262,  264,  266, 

270-274,  278,  280,  474 

Rose  v.  State,  425  So.  2d  521     877, 

878 
Rosenblatt  v.  Baer,  383  U.S. 

75  957-960,  963 

Ross  v.  Kemp,  756  F.  2d 

1483  382,  388,  391 

Ross  v.  Moffitt,  417  U.S.  600  319 
Ruckelshaus  v.  Monsanto  Co., 

467  U.S.  986  128 

Ruiz  v.  State,  579  S.  W.  2d 

206  869 

Rushen  v.  Spain,  464  U.S. 

114  113,  115,  118 

Russell  v.  Southard,  12  How. 

139  486 

Russello  v.  United  States,  464 

U.S.  16  973 

St.  Amant  v.  Thompson,  390 

U.S.  727  953 

Samuels  v.  Mackell,  401  U.S. 

66  72,  73 

San  Antonio  Independent 

School  Dist.  v,  Rodriguez, 

411  U.S.  1  958 

Sandstrom  v.  Montana,  442 

U.S.  510  384,  871 

Santobello  v.  New  York,  404 

U.S.  257  103 

Schad  v.  Mount  Ephraim,  452 

U.S.  61  1072 


cxxxrv 


TABLE  OF  CASES  CITED 


Page 

Schaffer  v.  United  States,  362 

U.S.  511     447,  448,  451,  475,  476 
Schaumburg  v.  Citizens  for  a 
Better  Environment,   444 
U.S.  620  1071 

Scheuer  v.  Rhodes,  416  U.S. 
232  201,  207,  359 

Screws  v.  United  States,  325 
U.S.  91  99 

Secretary  of  State  of  Md.  v. 
Joseph  H.  Munson  Co.,  467 
U.S.  947  1071 

SEC  v.  United  Realty  &  Im- 
provement Co.,  310  U.S.  434  514 

Sellars  v.  Procunier,  641  F.  2d 
1295  201,  204 

Shadwick  v.  City  of  Tampa,  407 
U.S.  345  984 

Sheppard  v.  Maxwell,  384  U.S. 
333  263 

Silkwood  v.  Kerr-McGee  Corp., 
464  U.S.  238  431,  432 

Silva  v.  Vowell,  621  F.  2d  640       67 

Simon  v.  St.  Elizabeth  Medical 
Center,  3  Ohio  Op.  3d  164  893 

Sites  v.  State,  300  Md.  702         1029 

Skelly  Oil  Co.  v.  Phillips  Petro- 
leum Co.,  339  U.S.  667  933,  934 

SMllem  v.  Estelle,  720  F.  2d 
839  403 

Skiriotes  v.  Florida,  313  U.S. 
69  89,  93 

Skoda  v.  Fontani,  646  F.  2d 
1193  989 

Slaughter  v.  City  of  Maple- 
wood,  731  F.  2d  587  1037 

Sloan  v.  Lemon,  413  U.S. 
825  487,  488,  491,  492 

Smith  v.  Allwright,  321  U.S. 
649  269 

Smith  v.  Balkcom,  660  F.  2d 
573  882 

Smith  v.  General  Motors  Corp. , 
747  F.  2d  372  910 

Smith  v.  Illinois,  390  U.S.  129      19 

Smith  v.  Illinois,  469  U.S.  91     1051 

Smith  v.  Texas,  311  U.S.  128      261 

Smith  v.  Wade,  461  U.S. 
30  338,  356 

Smith  v.  Wainwright,  741  F.  2d 
1248  882 


Page 

Snapp  &  Son,  Inc.  v.  Puerto 

Rico  ex  rel.  Barez,  458  U.S. 

592  93 

Solem  v.   Helm,   463  U.S. 

277  386,  403,  974 

South  v.  Maryland,   18  How. 

396  335,  340 

South  Dakota  v.  Neville,  459 

U.S.  553  291,  293,  294,  1029 

South  Dakota  v.  Opperman,  428 

U.S.  364  986 

Southeastern  Promotions,  Ltd. 

v.  Conrad,  420  U.S.  546  1072 
Spalding  v.  Vilas,  161  U.S.  483  201 
Spano  v.  New  York,  360  U.S. 

315  171,  172,  885 

Spaziano  v.  Florida,  468  U.S. 

447  385,  387,  388,  399,  401, 

402,  408,  876-878,  881 
State.     See  also  name  of  State. 
State  v.  Behler,  65  Idaho  464      928 
State  v.  Burwick,  442  So.  2d 

944  289,  294 

State  v.  Duff,  136  Vt.  537  1029 

State  v.  Fitzsimmons,  94  Wash. 

2d  858  1030 

State  v.  Hall,  176  Neb.  295  928 
State  v.McDaniel,  136  Ariz.  188  402 
State  v.  Ortiz,  131  Ariz.  195  190 
State  v.  Peterson  287  S.  C.  244  402 
State  v.  Stokes,  308  N.  C.  634  402 
State  v.  Welch,  135  Vt.  316  1029 
State  Farm  Mut.  Automobile 

Ins.  Co.  v.  Duel,  324  U.S.  154  87 
Steffel  v.  Thompson,  415  U.S. 

452  72,  73 

Stein  v.   New  York,   346  U.S. 

156  887 

Stevens  v.  Marks,  383  U.S.  234  102 
Stewart  v.  Bishop,  403  F.  2d 

674  999 

Stone  v.   Powell,  428  U.S. 

465  191,  273,  282 

Strader  v.  Garrison,  611  F.  2d 

61  53 

Strauder  v.  West  Virginia,  100 

U.S.  303  261,  264,  278 

Strickland  v.  Washington,  466 

U.S.  668  57-60, 

62,  270,  271,  1088-1091 
Stromberg  v.  California,  283 

U.S.  359  1074,  1076 


TABLE  OF  CASES  CITED 


cxxxv 


Page 

Stryker  v.   Republic  Pictures 

Corp.,  108  Cal.  App.  2d  191  961 
Stump  v.  Sparkman,  435  U.S. 

349  200 

Succession  of  Clement,  402  So. 

2d  702  968 

Sugarman  v.  Dougall,  413  U.S. 

634  958 

Sulie  v.  Duckworth,  689  F.  2d 

128  289 

Sumner  v.  Mata,  449  U.S. 

539  118,  258,  388,  399,  400 

Sumner  v.  Mata,  455  U.S.  591  118 
Swarts  v.  Hammer,  194  U.S. 

441  501 
Sweezy  v.  New  Hampshire,  354 

U.S.  234  226 

Talamini  v.  Allstate  Ins.  Co., 

470  U.S.  1067  970 

Taylor  v.  Alabama,  457  U.  S.  687  26 
Taylor  v.  Kentucky,  436  U.S. 

478  880 

Tedder  v.  State,  322  So.  2d 

908  877,  878,  883 

Tennessee  v.  Street,  471  U.S. 

409  18 

TVA  v.  Hill,  437  U.S.  153  374,375 
Thaw,  In  re,  166  F.  71  38 

Thomas  v.  Lockhart,  738  F.  2d 

304  59 

Thompson  v.  Louisiana,  469 

U.S.  17  1051 

Thompson  v.  State,  456  So.  2d 

444  928 

Time,  Inc.  v.  Firestone,  424 

U.S.  448  961,  964 

Tingler  v.  Marshall,  716  F.  2d 

1109  147 

Tollett  v.  Henderson,  411  U.S. 

258  56,  58,  279,  886 

Toucey  v.  New  York  Life  Ins. 

Co.,  314  U.S.  118  524 

Townsend  v.  Sain,  372  U.S. 

293  111,  112,  115,  258,  260 

Trop  v.  Dulles,  356  U.S.  86  397, 

1040 

Tumey  v.  Ohio,  273  U.S.  510  263, 

461 
Ulster  County  Court  v.  Allen, 

442  U.S.  140  157,  289 


Page 

United  States  v.  Abadi,  706  F. 

2d  178  988 

United  States  v.  Agurs,  427 

U.S.  97  283 

United  States  v.  Ajlouny,  629 

F.  2d  830  440 

United  States  v.  Arkus,  675  F. 

2d  245  233,  234 

United  States  v.  Auerbach,  420 

F.  2d  921  317 

United  States  v.  Banks,  682  F. 

2d  841  306,  309 

United  States  v.  Banks,  368  F. 

Supp.  1245;  374  F.  Supp.  321; 

383  F.  Supp.  389  305 

United  States  v.  Barnett,  376 

U.S.  681  269 

United  States  v.  Bastanipour, 

697  F.  2d  170  22 

United  States  v.  Batchelder, 

442  U.S.  114  264,  276 

United  States  v.  Benchimol,  471 

U.S.  453  1051 

United  States  v.  Bishton,  150 

U.S.  App.  D.  C.  51  310 

United  States  v.  Bledsoe,  674  F. 

2d  647  440 

United  States  v.  Boffa,  89 

F.  R.  D.  523  190 

United  States  v.  Bova,  493  F.  2d 

33  440 

United  States  v.  Bronston,  658 

F.  2d  920  925 

United  States  v.  Brown,  699  F. 

2d  585  912 

United  States  v.  Calandra,  414 

U.S.  338  202,  277 

United  States  v.  Carter,  721  F. 

2d  1514  972 

United  States  v.  Chadwick,  433 

U.S.  1  984 

United  States  v.  Ciambrone, 

601  F.  2d  616  263 

United  States  v.  Classic,  313 

U.S.  299  355 

United  States  v.  County  of  Alle- 
gheny, 322  U.S.  174  934 
United  States  v.  Cruikshank,  92 

U.S.  542  100 

United  States  v.  Daly,  716  F.  2d 

1499  234 


CXXXVI 


TABLE  OF  CASES  CITED 


Page 

United  States  v.  Darwin,  757 

F.  2d  1193  189 

United  States  v.  DeWolf,  696 

F.  2d  1  186,  189 

United  States  v.  DiFrancesco, 

449  U.S.  117  29-32 

United  States  v.  Eagleston,  417 

F.  2d  11  440 

United  States  v.  $8,850,  461 

U.S.  555  244,  247-249,  251 

United  States  v.  Ellis,  709  F.  2d 

688  440 

United  States  v.  Ewell,  383 

U.S.  116  312,  313 

United  States  v.  Feldman,  761 

F.  2d  380  232 

United  States  v.  Fernando,  745 

F.  2d  1328  924 

United  States  v.  Florea,  541  F. 

2d  568  147 

United  States  v.  Fowler,  735 

F.  2d  823  925 

United  States  v.  Frady,  456 

U.S.  152  270 

United  States  v.  Gagnon,  470 

U.S.  522  1051 

United  States  v.  Gambler,  213 

U.S.  App.  D.  C.  278  925 

United  States  v.  Gavilan,  761  F. 

2d  226  59 

United  States  v.  Gouveia,  467 
U.S.  180  170, 

319,  322,  1028,  1029 
United  States  v.  Graci,  504  F. 

2d  411  440 

United  States  v.  Guzman,  754 

F.  2d  482  232 

United  States  v.  Hale,  422  U.S. 

171  290 

United  States  v.  Harris,  724  F. 

2d  1452  234 

United  States  v.  Hasting,  461 
U.S.  499  269,  445, 

446,  448,  450,  460,  461, 
464,  465,  476,  940,  1096 
United  States  v.  Hatcher,  680 

F.  2d  438  440 

United  States  v.  Henry,  447 
U.S.  264  173- 

177,  186-188,   190,  192 
United  States  v.  Herman,  576 
F.  2d  1139  310,  315,  324 


Page 

United  States  v.  Hinton,  543  F. 

2d  1002  187,  189 

United  States  v.  Hollywood 
Motor  Car  Co.,  458  U.S. 
263  315-317 

United  States  v.  Hopkins,  744 

F.  2d  716  925 

United  States  v.  Horton,  676  F. 

2d  1165  232,  233 

United  States  v.  Irwin,  654  F. 

2d  671  988 

United  States  v.  Jackson,  429 

F.  2d  1368  473 

United  States  v.  Jackson,  508 

F.  2d  1001  310 

United  States  v.  Johns,  469 

U.S.  478  986 

United  States  v.  Lanza,  260 

U.S.  377  88-90,  92 

United  States  v.  Ledesma,  632 

F.  2d  670  453 

United  States  v.  Lefkowitz,  285 

U.S.  452  984 

United  States  v.  Leon,  468  U.S. 
897  191,  192,  273, 

277,  357,  984,  987,  1050 
United  States  v.  Levine,  546  F. 

2d  658  443 

United  States  v.  Lewis,  621  F. 

2d  1382  146 

United  States  v.  Lisenby,  716 

F.  2d  1355  185 

United  States  v.  Loud  Hawk, 

628  F.  2d  1139  305,  306,  308 

United  States  v.  MacDonald, 

456  U.S.  1  310-312,  317-321 

United  States  v.  Marion,  404 
U.S.  307  310, 

311,  318-320,  322,  323 
United  States  v.  Martin,  567  F. 

2d  849  440 

United  States  v.  Martin,  704  F. 

2d  267  145 

United  States  v.  Maze,  414  U.S. 

395  443,  452,  453 

United  States  v.  McGuire,  744 

F.  2d  1197  925 

United  States  v.  McManaman, 

606  F.  2d  919  912 

United  States  v.  Merritts,  527 
F.  2d  713  188,  189 


TABLE  OF  CASES  CITED 


cxxxvn 


Page 

United  States  v.   Mississippi 

Tax  Comm'n,  421  U.S.  599  11 
United  States  v.  Morrison,  449 

U.S.  361  191 

United  States  v.  Moschiano,  695 

F.  2d  236  190 

United  States  v.  New  York 

Telephone   Co.,   434  U.S. 

159  40,  42 

United  States  v.  O'Brien,  391 

U.S.  367  1072 

United  States  v.  Palmer,  502 

F.  2d  1233  323 

United  States  v.  Payner,  447 

U.S.  727  148 

United  States  v.  Peltier,  422 

U.S.  531  192 

United  States  v.  Raddatz,  447 

U.S.  667  153,  154 

United  States  v.  Ross,  456  U.S. 

798  986 

United  States  v.  Ruggiero,  726 

F.  2d  913  972 

United  States  v.  Rush,  738  F.  2d 

497  232 

United  States  v.  Rutherford, 

442  U.S.  544  137 

United  States  v.  Saintil,  705  F. 

2d  415  324 

United  States  v.  Sampson,  371 

U.S.  75  443,  452,  453 

United  States  v.  Schiavo,  504  F. 

2d  1  147 

United  States  v.  Schronce,  727 

F.  2d  91  146,  148 

United  States  v.  Seckinger,  397 

U.S.  203  934 

United  States  v.  Security  In- 
dustrial Bank,  459  U.S.  70  128, 

500 
United  States  v.  Seidel,  620  F. 

2d  1006  440 

United  States  v.  Sherer,  653  F. 

2d  334  925 

United  States  v.  Smith,  440  F. 

2d  521  58 

United  States  v.  Taxe,  540  F.  2d 

961  189 

United  States  v.  Timmreck,  441 

U.S.  780  58 


Page 

United  States  v.  Todisco,  667  F. 

2d  255  232 

United  States  v.  Trujillo,  578 

F.  2d  285  289 

United  States  v.  Turkette,  632 

F.  2d  896  440 

United  States  v.  Valdez,  594  F. 

2d  725  988 

United  States  v.  Varelli,  407  F. 

2d  735  440 

United  States  v.  Wade,  388 

U.S.  218  170 

United  States  v.  Walters,  638 

F.  2d  947  144,  145,  149 

United  States  v.  Wheeler,  435 

U.S.  313  88-90,  92,  98,  100 

United  States  v.  Williams,  615 

F.  2d  585  931 

United  States  v.  Williford,  No. 

83-1376  (CA5)  232 

United  States  v.  Wilson,  420 

U.S.  332  313 

United  States  v.  Winter,  663  F. 

2d  1120  972 

United  States  v.  Woodward, 

469  U.S.  105  1051 

United  States  Alkali  Export 

Assn.  v.  United  States,  325 

U.S.  196  41,  42 

United  States  ex  rel.  Miller  v. 

Twomey,  479  F.  2d  701  340 

United  States  ex  rel.  Powell  v. 

Irving,  684  F.  2d  494  201 

University  of  Cal.   Regents  v. 

Bakke,  438  U.S.  265         226,  230 
Vasquez  v.  Hillery,  474  U.S. 

254  461 

Village.     See  name  of  village. 
Vitek  v.  Jones,  445  U.S.  480       353 
Wainwright  v.  Henry,  463  U.S. 

1223  875 

Wainwright  v.  Sykes,  433  U.S. 

72  270,  289 

Wainwright  v.  Witt,  469  U.S. 

412  112,  114,  117,  118, 

388,  401,  406, 1050, 1053 
Wallace  v.  Jaffree,  472  U.S. 

38  486 

Waller  v.   Florida,  397  U.S. 

387  88,  90 


cxxxvni 


TABLE  OF  CASES  CITED 


Page 

Walz  v.  Tax  Comm'n,  397  U.S. 

664  492 

Ward  v.  Johnson,  690  F.  2d 

1098  199,  203,  204 

Ward  v.  Texas,  316  U.S.  547  117 
Ward  v.  United  States,  110 

U.S.  App.  D.  C.  136  475 

Washington  v.  Confederated 

Tribes  of  Colville  Indian  Res- 
ervation, 447  U.S.  134  10-12 
Washington  v.  Davis,  426  U.S. 

229  275, 874 

Watts  v.  Indiana,  338  U.S.  49  114 
Wayte  v.  United  States,  470 

U.S.  598  188 

Weems  v.  United  States,  217 

U.S.  349  386,  397 

Welyczko  v.  U.  S.  Air,  Inc.,  733 

F.  2d  239  910 

West  v.  Rowe,  448  F.  Supp.  58  357 
WestfaU  v.  United  States,  274 

U.S.  256  89 

Whirlpool  Corp.  v.  Marshall, 

445  U.S.  1  4 

White  v.  Maryland,  373  U.S. 

59  170 

White  v.  Rochford,  592  F.  2d 

381  354 

Wiggins  v.  County  of  Alameda, 

717  F.  2d  466  38,  44 

Wiley  v.  State,  449  So.  2d  756  405 
Williams  v.  State,  445  So.  2d 

798  405 

Williams  v.  United  States,  168 

U.S.  382  456 

Williamson  County  Regional 

Planning  Comm'n  v.  Hamilton 

Bank,  473  U.S.  172  126, 128, 129 
Wilson  v.  Brown,  189  Misc.  79  961 


Page 

Wilson  v.  Garcia,  471  U.S. 

261  1105,  1106,  1108,  1109 

Wingo  v.  Wedding,  418  U.S. 

461  152 

Winship,  In  re,  397  U.S.  358  881 
Wisconsin  v.  Yoder,  406  U.S. 

205  958 

Witherspoon  v.  Illinois,  391 

U.S.  510  408 

Wolff  v.  McDonnell,  418  U.S. 

539  203-205, 207, 

210,  331-333,  353,  358 
Wolman v.Walter,  433  U.S.  229  487 
Wolson  v.  Reader's  Digest 

Assn.,  Inc.,  443  U.S.  157  961, 

963 
Wood  v.  Strickland,  420  U.S. 

308  201,  204 

Woodard  v.  Hutchins,  464  U.S. 

377  281 

Woodson  v.  North  Carolina,  428 

U.S.  280  400,  883,  887 

Wright  v.  Central  Du  Page 

Hospital  Assn.,  63  111.  2d 

313  893,  894 

Wyrick  v.  Fields,  459  U.S. 

42  8,  13,  27,  937 

Yaselli  v.  Goff,  275  U.S.  503  200 
Ybarra  v.  Illinois,  444  U.S. 

85  1025,  1026 

Young,  Ex  parte,  209  U.S. 

123  68,  69,  71,  77 

Youngberg  v.  Romeo,  457  U.S. 

307  225,  337,  352 

Younger  v.  Harris,  401  U.S. 

37  72,  391,  966 

Zant  v.  Stephens,  462  U.S. 

862  387,  396,  885,  1074 

Zant  v.  Stephens,  250  Ga.  97  396 
Zykan  v.  Warsaw  Community 

School  Corporation,  631  F.  2d 

1300  959 


CASES  ADJUDGED 

IN  THE 

SUPREME  COURT  OF  THE  UNITED  STATES 

AT 
OCTOBER  TERM,  1985 


KENTUCKY  v.  INDIANA  ET  AL. 

ON  BILL  OF  COMPLAINT 
No.  81,  Orig.     Decree  entered  November  4,  1985 

The  Report  of  the  Special  Master  is  received  and  ordered 
filed.  The  parties  having  waived  the  right  to  file  Excep- 
tions, the  Report  is  adopted. 

DECREE 

IT  Is  ORDERED,  ADJUDGED,  AND  DECREED  THAT: 

1.  The  boundary  line  between  the  State  of  Indiana  and  the 
Commonwealth   of  Kentucky  is  fixed  as  geodetically  de- 
scribed in  Joint  Exhibit  50  to  the  Special  Master's  Report 
filed  with  this  Court  on  November  4,  1985.    Joint  Exhibit  50 
is  incorporated  by  reference  herein. 

2.  Copies  of  this  Decree  and  the  Special  Master's  Report 
(including  Joint  Exhibits  1-50,  inclusive)  shall  be  filed  with 
the  Clerk  of  this  Court,  the  Archives  Division  of  the  Indiana 
Commission  on  Public  Records  of  Indiana,  and  the  Secretary 
of  State  of  the  Commonwealth  of  Kentucky. 

3.  Copies  of  this  Decree  and  the  Special  Master's  Report 
(including  Joint  Exhibit  50  and  paper  prints  of  Joint  Exhibits 
1-49,  inclusive,  once  they  become  available)  shall  be  filed 
with  the  Office  of  the  County  Recorder  in  each  of  the  follow- 

l 


2  OCTOBER  TERM,  1985 

Decree  474  U,  S, 

ing  Indiana  counties:  the  counties  of  Posey,  Vanderburgh, 
Warrick,  Spencer,  Perry,  Crawford,  Harrison,  Floyd,  Clark, 
Jefferson,  Switzerland,  Ohio,  and  Dearborn;  and  with  the 
County  Clerk's  Office  in  the  Commonwealth  of  Kentucky  in 
each  of  the  following  Kentucky  counties:  the  counties  of 
Union,  Henderson,  Daviess,  Hancock,  Breckinridge,  Meade, 
Hardin,  Jefferson,  Oldham,  Trimble,  Carroll,  Gallatin,  and 
Boone, 

4,  The  State  of  Indiana  and  the  Commonwealth  of  Ken- 
tucky each  have  concurrent  jurisdiction  over  the  Ohio  River, 

5,  The  costs  of  this  proceeding  shall  be  divided  between 
the  parties  as  recommended  by  the  Special  Master, 


CUYAHOGA  VALLEY  R.  CO.  u  TRANSPORTATION  UNION      3 

Per  Curiam 


CUYAHOGA  VALLEY  RAILWAY  CO.  v.  UNITED 
TRANSPORTATION  UNION  ET  AL. 

ON  PETITION  FOR  WRIT  OF  CERTIORARI  TO  THE  UNITED 
STATES  COURT  OF  APPEALS  FOR  THE  SIXTH  CIRCUIT 

No.  84-1634.     Decided  November  4,  1985* 

Pursuant  to  the  Occupational  Safety  and  Health  Act  (Act),  the  Secretary 
of  Labor  issued  a  citation  to  Cuyahoga  Valley  Railway  Co.  for  a  viola- 
tion of  the  Act;  the  company  contested  the  citation;  the  Secretary  filed 
a  complaint  with  the  Occupational  Safety  and  Health  Review  Commis- 
sion (Commission),  and  the  company  filed  an  answer;  and  the  United 
Transportation  Union,  which  represents  the  company's  employees,  in- 
tervened. At  the  hearing,  the  Administrative  Law  Judge  (AL  J),  over 
the  Union's  objection,  granted  the  Secretary's  motion  to  vacate  the 
citation  on  the  ground  that  the  Secretary  did  not  have  jurisdiction  over 
the  relevant  safety  conditions.  Despite  the  Secretary's  objection,  the 
Commission  directed  review  of  the  ALJ's  order  and  ultimately  remanded 
the  case  to  the  ALJ  for  consideration  of  the  Union's  objections.  The 
Court  of  Appeals  affirmed,  holding  that,  because  the  adversarial  process 
was  well  advanced  at  the  time  the  Secretary  attempted  to  withdraw  the 
citation,  the  Commission,  as  the  adjudicative  body,  had  the  authority  to 
review  the  Secretary's  withdrawal  of  the  citation. 

Held:  The  Secretary  has  unreviewable  discretion  to  withdraw  a  citation 
charging  an  employer  with  violating  the  Act.  The  Court  of  Appeals'  de- 
cision is  inconsistent  with  the  detailed  statutory  scheme,  which  con- 
templates that  the  rights  created  by  the  Act  are  to  be  protected  by  the 
Secretary,  and  that  enforcement  of  the  Act  is  the  Secretary's  sole  re- 
sponsibility. The  Commission's  function  is  to  act  as  a  neutral  arbiter 
and  to  determine  whether  the  Secretary's  citations  should  be  enforced. 
Its  authority  does  not  extend  to  overturning  the  Secretary's  decision  not 
to  issue  or  to  withdraw  a  citation. 

Certiorari  granted;  748  F.  2d  340,  reversed. 

PER  CURIAM. 

The  Secretary  of  Labor  is  authorized  to  inspect  work  sites 
to  uncover  noncompliance  with  the  Occupational  Safety  and 

*Together  with  No.  85-170,  Brock,  Secretary  of  Labor  v.  United 
Transportation  Union  et  al.t  also  on  petition  for  certiorari  to  the  same 
court. 


4  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

Health  Act.  29  U.  S.  C.  §  657(a).  If,  as  a  result  of  such  an 
inspection,  the  Secretary  discovers  a  violation  of  the  Act,  he 
is  authorized  to  issue  a  citation  to  the  employer  fixing  a  rea- 
sonable time  for  the  abatement  of  the  violation,  §  658(a),  and 
assessing  a  penalty  for  the  violation.  §  666.  The  employer 
then  has  15  days  in  which  to  contest  the  citation.  §  659(a). 
Similarly,  employees  have  15  days  in  which  to  challenge  as 
unreasonable  "the  period  of  time  fixed  in  the  citation  for  the 
abatement  of  the  violation."  §  659(c).  See  generally  Whirl- 
pool Corp.  v.  Marshall,  445  U.  S.  1,  9,  n.  11  (1980).  The 
statute  and  rules  of  the  Occupational  Safety  and  Health 
Review  Commission  also  permit  affected  employees  to  par- 
ticipate as  parties  in  any  hearing  in  which  the  employer  con- 
tests the  citation.  29  U.  S.  C.  §659(c);  29  CFR  §2200.20(a) 
(1985). 

If  an  employer  contests  the  citation,  and  the  Secretary 
intends  to  seek  its  enforcement,  the  Secretary  must  file  a 
complaint  with  the  Commission  within  20  days,  and  the  em- 
ployer must  file  an  answer  within  15  days.  29  CFR  §  2200.33 
(1985).  Once  these  pleadings  are  filed,  a  hearing  to  deter- 
mine the  validity  of  the  citation  will  be  held  before  an  admin- 
istrative law  judge  (ALJ),  with  discretionary  review  by  the 
Commission.  29  U.  S.  C.  §§659(c),  661(j). 

In  the  present  cases,  the  Secretary  cited  Cuyahoga  Valley 
Railway  Company  for  a  violation  of  the  Act.  Cuyahoga  con- 
tested the  citation,  the  Secretary  filed  a  complaint  with  the 
Commission,  and  Cuyahoga  filed  an  answer.  Respondent 
United  Transportation  Union,  which  represents  Cuyahoga 
employees,  properly  moved  to  intervene  in  the  proceedings. 
At  the  hearing,  however,  the  Secretary  moved  to  vacate  the 
citation  on  the  ground  that  the  Federal  Railway  Administra- 
tion, not  the  Secretary,  had  jurisdiction  over  the  relevant 
safety  conditions.  Despite  the  Union's  objection,  the  ALJ 
granted  the  Secretary's  motion  and  vacated  the  citation. 
Thereafter,  the  Commission  directed  review  of  the  ALJ's 
order.  The  Secretary  promptly  objected  to  this  action,  as- 


CUYAHOGA  VALLEY  R.  CO.  u  TRANSPORTATION  UNION      5 
3  Per  Curiam 

serting  that  part  of  the  citation  involved  matters  beyond  the 
reach  of  the  Act  and  that  additional  portions  of  the  citation 
did  not  warrant  litigation  because  of  the  state  of  the  evi- 
dence. He  also  stated  that  the  record  before  the  Commis- 
sion was  inadequate  to  resolve  the  issue  posed.1  Some  six 
years  later,  the  Commission  rejected  this  submission  and  re- 
manded the  case  to  the  AL  J  for  consideration  of  the  Union's 
objections. 

The  Court  of  Appeals  for  the  Sixth  Circuit  affirmed  the 
Commission's  holding  that  it  could  review  the  Secretary's  de- 
cision to  withdraw  a  citation.  Donovan  v.  United  Transpor- 
tation Union,  748  F.  2d  340  (1984).  The  court  recognized 
that  the  Secretary  "has  the  sole  authority  to  determine 
whether  to  prosecute"  a  violation  of  the  Act.  Id. ,  at  343. 
Here,  however,  the  court  found  that  the  Secretary  tf<had 
already  made  the  decision  to  prosecute  by  filing  a  complaint 
and  that  complaint  had  been  answered  at  the  time  the  Secre- 
tary attempted  to  withdraw  the  citation."  Ibid.  Because 
the  "adversarial  process  was  well-advanced  at  the  time  the 
Secretary  attempted  to  withdraw  the  citation,"  the  court  rea- 
soned that  the  Commission,  "as  the  adjudicative  body,  had 
control  of  the  case  and  the  authority  to  review  the  Secre- 
tary's withdrawal  of  the  citation."  Ibid.2 

1  Vacating  the  citation  thus  did  not  rest  solely  on  jurisdictional  grounds. 
Nor  did  the  Court  of  Appeals'  decision  sustaining  the  Commission's  order 
focus  on  jurisdiction.     Its  holding  would  permit  review  by  the  Commission 
of  the  Secretary's  withdrawal  of  any  citation,  whatever  the  reason,  pro- 
vided the  adversarial  process  was  sufficiently  advanced  to  vest  control  in 
the  Commission.     For  these  reasons  and  because  the  issue  relates  to  the 
statutory  division  of  authority  between  the  Secretary  and  the  Commission, 
rather  than  the  question  of  judicial  review  of  administrative  action,  the 
cases  do  not  pose  the  question  whether  an  agency's  decision,  resting  on 
jurisdictional  concerns,  not  to  take  enforcement  action  is  presumptively 
immune  from  judicial  review  under  the  Administrative  Procedure  Act,  5 
U.  S.  C.   §701(a)(2).      See  Heckler  v.   Chancy,  470  U.  S.  821,  833,  n.  4 
(1985). 

2  The  Court  of  Appeals  also  relied  to  some  extent  on  the  position  of  the 
Commission  as  to  the  scope  of  its  powers.     The  Commission,  however,  has 


6  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

Contrary  to  the  Sixth  Circuit's  decision,  eight  other  Courts 
of  Appeals  have  held  that  the  Secretary  has  unreviewable 
discretion  to  withdraw  a  citation  charging  an  employer  with 
violating  the  Occupational  Health  and  Safety  Act.  Donovan 
v.  Allied  Industrial  Workers  (Midland),  760  F.  2d  783,  785 
(CA7  1985);  Donovan  v.  Local  962,  International  Chemical 
Workers  Union  (Englehard),  748  F.  2d  1470,  1473  (CA11, 
1984);  Donovan  v.  International  Union,  Allied  Industrial 
Workers  (Whirlpool),  722  F.  2d  1415,  1422  (CAS  1983);  Dono- 
van v.  United  Steelworkers  of  America  (Monsanto),  722  F. 
2d  1158,  1160  (CA4  1983);  Donovan  v.  Oil,  Chemical  and 
Atomic  Workers  International  (American  Petrofina),  718  F. 
2d  1341,  1352-1353  (CAS  1983),  cert,  denied,  466  U.  S.  971 
(1984);  Donovan  v.  Occupational  Safety  and  Health  Review 
Comm'n  (Mobil  Oil),  713  F.  2d  918,  926-927  (CA2  1983);  Oil, 
Chemical  and  Atomic  Workers  International  v.  Occupa- 
tional Safety  and  Health  Comm'n  (American  Cynamid),  217 
U.  S.  App.  D.  C.  137,  144-145,  671  F.  2d  643,  650-651,  cert, 
denied,  459  U.  S.  905  (1982);  Marshall  v.  Sun  Petroleum 
Products  Co.,  622  F.  2d  1176,  1187  (CA3),  cert,  denied,  449 
U.  S.  1061  (1980).  We  agree  with  the  decisions  of  these 
courts. 

It  is  apparent  that  the  Court  of  Appeals'  decision  is  in- 
consistent with  the  detailed  statutory  scheme  which  contem- 
plates that  the  rights  created  by  the  Act  are  to  be  protected 
by  the  Secretary.  See  Atlas  Roofing  Co.  v.  Occupational 
Safety  and  Health  Comm'n,  430  U.  S.  442,  444-447  (1977); 
Mobil  Oil,  supra,  at  927;  Sun  Petroleum  Products,  supra,  at 
1187.  It  is  also  clear  that  enforcement  of  the  Act  is  the  sole 
responsibility  of  the  Secretary.  Oil,  Chemical  and  Atomic 
Workers  International  v.  Occupational  Safety  and  Health 
Comm'n,  supra,  at  143,  671  F.  2d,  at  649.  It  is  the  Secre- 


since  revised  its  view  and  now  declines  to  review  the  Secretary's  dismissal 
of  a  citation.  Pan  American  World  Airways,  Inc.,  1984  OSHD  1126,920; 
American  Bakeries  Co.,  1984  OSHD  1126,951;  Copperweld  Steel  Co.,  1984 
OSHD  11 26,956. 


CUYAHOGA  VALLEY  R.  CO.  u  TRANSPORTATION  UNION      7 
3  Per  Curiam 

tary,  not  the  Commission,  who  sets  the  substantive  stand- 
ards for  the  workplace,  and  only  the  Secretary  has  the  au- 
thority to  determine  if  a  citation  should  be  issued  to  an 
employer  for  unsafe  working  conditions,  29  U.  S.  C.  §658. 
A  necessary  adjunct  of  that  power  is  the  authority  to  with- 
draw a  citation  and  enter  into  settlement  discussions  with  the 
employer.  Whirlpool,  supra,  at  1420;  Mobil  Oil,  supra,  at 
927.  The  Commission's  function  is  to  act  as  a  neutral  arbiter 
and  determine  whether  the  Secretary's  citations  should  be 
enforced  over  employee  or  union  objections.  Its  authority 
plainly  does  not  extend  to  overturning  the  Secretary's  deci- 
sion not  to  issue  or  to  withdraw  a  citation. 

The  Sixth  Circuit's  conclusion  that  the  Commission  can  re- 
view the  Secretary's  decision  to  withdraw  a  citation  would 
discourage  the  Secretary  from  seeking  voluntary  settlements 
with  employers  in  violation  of  the  Act,  thus  unduly  hamper- 
ing the  enforcement  of  the  Act.  Whirlpool,  supra,  at  1420; 
Mobil  Oil,  supra,  at  927.  Such  a  procedure  would  also  allow 
the  Commission  to  make  both  prosecutorial  decisions  and 
to  serve  as  the  adjudicator  of  the  dispute,  a  commingling 
of  roles  that  Congress  did  not  intend.  Whirlpool,  supra, 
at  1419;  Mobil  Oil,  supra,  at  930-931;  Sun  Petroleum  Prod- 
ucts, supra,  at  1187.  Indeed,  the  Commission  itself  was 
created  to  avoid  giving  the  Secretary  both  prosecutorial 
and  adjudicatory  powers.  See  generally  Senate  Committee 
on  Labor  and  Public  Welfare,  Subcommittee  on  Labor,  92d 
Cong.,  1st  Sess.,  Legislative  History  of  the  Occupational 
Safety  and  Health  Act  of  1970  (S.  2193,  Pub.  L.  91-596) 
(Comm.  Print  1971).  Accord,  Whirlpool,  supra,  at  1419; 
Mobil  Oil,  supra,  at  930-931,  and  n.  21.  The  other  Courts 
of  Appeals  to  address  this  problem  have  recognized  the  dis- 
tinct roles  of  the  Secretary  and  the  Commission  and  accord- 
ingly have  acknowledged  that  the  Secretary's  decision  to 
withdraw  a  citation  against  an  employer  under  the  Act  is 


8  OCTOBER  TERM,  1985 

PerCuriam  474  U.S. 

not  renewable  by  the  Commission,  Based  on  these  consid- 
erations, the  petitions  for  certiorari  are  granted,  and  the 
judgment  of  the  Court  of  Appeals  is 

Reversed. 

JUSTICE  BRENNAN  and  JUSTICE  BLACKMUN  dissent  from 
summary  disposition.  They  would  grant  certiorari  and  set 
the  cases  for  oral  argument, 

JUSTICE  MARSHALL  dissents  from  this  summary  disposi- 
tion, which  has  been  ordered  without  affording  the  parties 
prior  notice  or  an  opportunity  to  file  briefs  on  the  merits, 
See  Moggto  v,  Fulford,  462  U,  S,  111,  120-121  (1983)  (MAR- 
SHALL, J,,  dissenting);  ffyrick  v,  FMb,  459  U,  S.  42, 51-52 
(1982)  (MARSHALL,  J.,  dissenting), 


GAL.  BD.  OF  EQUALIZATION  v.  CHEMEHUEVI  TRIBE 

Syllabus 


CALIFORNIA  STATE  BOARD  OF  EQUALIZATION 
ET  AL.  v.  CHEMEHUEVI  INDIAN  TRIBE 

ON    PETITION    FOR    WRIT    OF    CERTIORARI    TO    THE    UNITED 
STATES  COURT  OF  APPEALS  FOR  THE  NINTH  CIRCUIT 

No.  85-130.     Decided  November  4,  1985 

Since  1959,  California  has  imposed  an  excise  tax  on  the  distribution  of  ciga- 
rettes, and  respondent  Chemehuevi  Indian  Tribe  originally  remitted  the 
tax  to  petitioner  State  Board  of  Equalization  (Board)  insofar  as  the  tax 
was  imposed  on  the  distribution  of  cigarettes  to  non-Indians  who  pur- 
chased the  cigarettes  from  the  Tribe  on  its  reservation  in  California. 
However,  in  1977  the  Tribe  enacted  its  own  cigarette  tax  and  ceased  col- 
lecting and  remitting  the  state  tax.  When  California  sought  to  obtain 
the  unremitted  tax,  the  Tribe  filed  suit  in  Federal  District  Court  for  in- 
junctive  relief  and  a  declaratory  judgment  that  the  Board  could  not  law- 
fully apply  the  state  tax  to  cigarettes  sold  by  the  Tribe  to  non-Indian 
purchasers.  The  court  held  that  the  Board's  counterclaim  for  damages 
in  the  amount  of  back  taxes  allegedly  owed  by  the  Tribe  was  barred  by 
sovereign  immunity,  but  that  California  could  lawfully  require  the  Tribe 
to  collect  state  taxes  imposed  on  cigarettes  that  it  sold  to  non-Indians. 
The  Court  of  Appeals  affirmed  the  first  determination,  but  reversed  the 
second. 

Held:  The  Court  of  Appeals  erred  insofar  as  it  held  that  the  Tribe  could 
not  be  required  to  collect  the  tax  imposed  by  California  on  non-Indian 
purchasers  at  tribal  smoke  shops.  It  is  not  necessary  that  a  state  ciga- 
rette tax  statute  contain  an  express  statement  that  the  tax  is  to  be 
passed  on  to  the  ultimate  purchaser  in  order  for  the  State  to  require 
a  tribe  to  collect  the  tax  from  non-Indian  purchasers  and  remit  the 
amounts  of  such  tax  to  the  State.  If  the  legal  incidence  of  the  tax  falls 
on  non-Indian  purchasers,  the  State  may  impose  on  the  tribe  the  burden 
of  collecting  the  tax.  The  proper  test  for  determining  the  legal  inci- 
dence of  the  tax  is  nothing  more  than  a  fair  interpretation  of  the  taxing 
statute  as  written  and  applied.  The  fairest  reading  of  California's  ciga- 
rette scheme  as  a  whole  is  that  the  legal  incidence  of  the  tax  falls  on  con- 
suming purchasers  if  the  vendors  are  untaxable,  and  thus  the  Board  has 
the  right  to  require  the  Tribe  to  collect  the  tax  on  the  Board's  behalf  with 
regard  to  purchases  of  cigarettes  by  non-Indian  consumers. 

Certiorari  granted;  757  F.  2d  1047,  reversed  in  part. 


10  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

PER  CURIAM. 

Since  1959  California  has  imposed  an  excise  tax  on  the 
distribution  of  cigarettes.  Respondent  Chemehuevi  Indian 
Tribe  sells  cigarettes  on  its  reservation  in  southeastern 
California.  The  Tribe  originally  remitted  the  state  tax  to 
petitioner  State  Board  of  Equalization  (petitioner)  insofar  as 
that  tax  was  imposed  on  the  distribution  of  cigarettes  to  non- 
Indian  purchasers.  But  in  1977  the  Tribe  enacted  a  ciga- 
rette tax  of  its  own  that  was  the  equivalent  of  the  California 
tax,  and  then  ceased  collecting  and  remitting  the  state  tax. 
When  California  sought  to  obtain  the  unremitted  tax  from 
the  Tribe,  the  Tribe  brought  an  action  in  the  United  States 
District  Court  for  the  Northern  District  of  California  re- 
questing a  declaratory  judgment  that  petitioner  could  not 
lawfully  apply  the  state  tax  to  cigarettes  sold  by  the  Tribe 
to  non-Indian  purchasers.  Respondent  Tribe  also  sought  an 
injunction  preventing  petitioner  from  enforcing  the  state  cig- 
arette tax  against  it.  Petitioner  counterclaimed  for  damages 
in  the  amount  of  back  taxes  claimed  to  be  owed  by  respond- 
ent Tribe. 

The  District  Court  held  that  petitioner's  counterclaim  was 
barred  by  sovereign  immunity,  492  F.  Supp,  55  (1979),  but 
also  held  that  California  could  lawfully  require  the  Tribe 
to  collect  cigarette  excise  taxes  imposed  on  cigarettes  that 
it  sold  to  non-Indians.  On  appeal,  the  Court  of  Appeals 
affirmed  the  first  determination,  but  reversed  the  second. 
757  F.  2d  1047  (CA9  1985). 

The  Court  of  Appeals  observed  that,  unlike  the  Washing- 
ton statute  that  we  considered  in  Washington  v.  Confeder- 
ated Tribes  of  Colville  Indian  Reservation,  447  U.  S.  134 
(1980),  California's  cigarette  tax  statute  "does  not  contain 
any  .  .  .  explicit  'pass-through'  language,"  757  F.  2d,  at  1056 
(emphasis  added),  and  that  therefore  the  question  of  the  legal 
incidence  of  the  California  cigarette  tax  was  not  controlled  by 
our  decision  in  that  case.  Id.,  at  1055-1056.  It  went  on  to 
observe  that  a  'legislative  intent  to  impose  even  a  collection 


CAL.  BD.  OF  EQUALIZATION  v.  CHEMEHUEVI  TRIBE        11 
9  Per  Curiam 

burden  should  be  explicitly  stated."  Id.,  at  1056,  n.  11  (em- 
phasis added).  The  Court  of  Appeals  concluded  that  the 
California  excise  tax,  properly  construed,  did  not  impose 
liability  on  the  ultimate  purchaser  of  cigarettes  when  the 
vendor  was  not  a  taxable  entity.  Id.,  at  1057,  and  n.  13. 

We  think  that  the  Court  of  Appeals  applied  a  mistaken 
standard  in  determining  whether  or  not  the  California  tax  on 
cigarettes  was  sufficiently  like  the  Washington  tax  involved 
in  Colville  so  that  the  result  in  the  latter  case  should  be 
controlling  here.  None  of  our  cases  has  suggested  that  an 
express  statement  that  the  tax  is  to  be  passed  on  to  the  ulti- 
mate purchaser  is  necessary  before  a  State  may  require  a 
tribe  to  collect  cigarette  taxes  from  non-Indian  purchasers 
and  remit  the  amounts  of  such  tax  to  the  State.  Nor  do  our 
cases  suggest  that  the  only  test  for  whether  the  legal  inci- 
dence of  such  a  tax  falls  on  purchasers  is  whether  the  taxing 
statute  contains  an  express  "pass  on  and  collect"  provision. 
Indeed,  the  Washington  statute  in  Colville  did  not  contain  an 
express  pass-through  provision;  the  conclusion  of  the  District 
Court  in  that  case,  which  we  accepted,  was  that  the  statutory 
scheme  required  consumers  to  pay  the  tax  whenever  the  ven- 
dor was  untaxable,  and  thus  the  legal  incidence  of  the  tax  fell 
on  purchasers  in  such  cases.  447  U.  S.,  at  142,  and  n.  9. 
The  test  to  be  derived  from  cases  such  as  Colville  and  Moe  v. 
Confederated  Salish  and  Kootenai  Tribes,  425  U.  S.  463, 
481—483  (1976),  is  nothing  more  than  a  fair  interpretation  of 
the  taxing  statute  as  written  and  applied,  without  any  re- 
quirement that  pass-through  provisions  or  collection  require- 
ments be  "explicitly  stated."  Cf.  United  States  v.  Missis- 
sippi Tax  Com'm'n,  421  U.  S.  599,  607-608  (1975). 

We  think  the  fairest  reading  of  California's  cigarette 
scheme  as  a  whole  is  that  the  legal  incidence  of  the  tax  falls 
on  consuming  purchasers  if  the  vendors  are  untaxable.  Cali- 
fornia Rev.  &  Tax  Code  Ann.  §30107  (West  1979)  clearly 
seems  to  place  on  consumers  the  obligation  to  pay  the  tax  for 
all  previously  untaxed  cigarettes.  The  Board's  implement- 


12  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

ing  regulation  does  not  restrict  this  obligation  to  the 
hypotheticals  contained  in  the  regulation;  it  merely  indicates 
that  the  consumer  has  a  duty  to  pay  any  tax  directly  to  the 
Board  when  the  vendor  is  the  type  of  entity  on  which  the 
State  cannot  impose  a  collection  requirement.  See  Cal. 
Admin.  Register  72,  No.  16,  Tit.  18,  Art.  16,  §4091.  The 
regulation  does  not  address  itself  to  the  question  of  legal  inci- 
dence. And  since  both  Colville  and  Moe  hold  that  if  the  legal 
incidence  of  a  state  excise  tax  falls  on  non-Indian  purchasers, 
the  State  may  impose  on  the  tribe  the  burden  of  collecting 
that  tax  from  the  purchasers,  447  U.  S.,  at  159;  425  U.  S.,  at 
482-483,  this  particular  regulation  is  inapplicable  to  purchas- 
ers from  Indian  tribes  if  the  ultimate  liability  for  the  tax  falls 
on  the  purchaser  when  the  vendor  is  not  taxable.  We  think 
that  in  the  context  of  the  entire  California  statutory  scheme, 
interpreted  without  any  of  the  restrictive  requirements 
which  the  Court  of  Appeals  employed,  Cal.  Rev.  &  Tax  Code 
Ann.  §30108(a)  (West  1979)  evidences  an  intent  to  impose  on 
the  Tribe  such  a  "pass  on  and  collect"  requirement.  We  hold 
that  the  legal  incidence  of  California's  cigarette  tax  falls  on 
the  non-Indian  consumers  of  cigarettes  purchased  from  re- 
spondent's smoke  shop,  and  that  petitioner  has  the  right  to 
require  respondent  to  collect  the  tax  on  petitioner's  behalf. 
The  petition  for  certiorari  is  granted  on  the  first  three 
questions  it  presents.  Insofar  as  the  Court  of  Appeals  held 
that  respondent  might  not  be  required  to  collect  the  cigarette 
tax  imposed  by  California  on  non-Indian  purchasers  at  tribal 
smoke  shops,  its  judgment  is 

Reversed. 

JUSTICE  BRENNAN  would  deny  certiorari. 

JUSTICE  MARSHALL  dissents  from  this  summary  dispo- 
sition, which  has  been  ordered  without  affording  the  parties 
prior  notice  or  an  opportunity  to  file  briefs  on  the  merits. 
See  Maggio  v.  Fulford,  462  U.  S.  Ill,  120-121  (1983)  (MAR- 


CAL.  BD.  OF  EQUALIZATION  v.  CHEMEHUEVI  TRIBE        13 
9  STEVENS,  J.,  dissenting 

SHALL,  J.,  dissenting);  Wyrick  v.  Fields,  459  U.  S.  42,  51-52 
(1982)  (MARSHALL,  J.,  dissenting). 

JUSTICE  BLACKMUN  would  grant  certiorari  and  give  the 
case  plenary  consideration. 

JUSTICE  STEVENS,  dissenting. 

The  courts  of  appeals  are  better  qualified  to  decide  ques- 
tions of  state  law  than  is  this  Court.  Most  circuit  judges  for- 
merly practiced  in  States  within  their  respective  circuits. 
As  judges,  they  must  confront  state-law  issues  on  a  regular 
basis.  For  these  reasons,  it  has  long  been  the  settled  prac- 
tice in  this  Court  to  show  the  greatest  deference  to  opinions 
of  the  courts  of  appeals  on  questions  of  state  law,  "In  deal- 
ing with  issues  of  state  law  that  enter  into  judgments  of  fed- 
eral courts,  we  are  hesitant  to  overrule  decisions  by  federal 
courts  skilled  in  the  law  of  particular  states  unless  their  con- 
clusions are  shown  to  be  unreasonable."  Propper  v.  Clark, 
337  U.  S.  472,  486-487  (1949).  See  also  Haring  v.  Prosise, 
462  U.  S.  306,  314,  n.  8  (1983)  ("a  challenge  to  state-law 
determinations  by  the  Court  of  Appeals  will  rarely  constitute 
an  appropriate  subject  of  this  Court's  review");  Leroy  v. 
Great  Western  United  Corp.,  443  U.  S.  173,  181,  n.  11  (1979) 
("it  is  not  our  practice  to  re-examine  state-law  determina- 
tions of  this  kind");  Bishop  v.  Wood,  426  U.  S.  341,  345-347 
(1976),  and  cases  cited  therein. 

The  outcome  of  this  case  depends  entirely  on  an  interpreta- 
tion of  the  California  Revenue  and  Taxation  Code.  I  am  not 
prepared  to  say  that  the  Court  of  Appeals'  construction  of  the 
California  Code  is  correct  or  incorrect.1  I  am  prepared, 

'The  Court  of  Appeals  summarized  its  construction  of  the  California 
statute  as  follows: 

"Upon  careful  examination,  it  is  apparent  that  section  30108(a)  is  merely 
a  procedural  section  that  denotes  the  manner  in  which  a  vendor  shall  collect 
a  tax  from  a  purchaser  if  and  when  the  purchaser  is  obligated  to  pay  the 
tax.  In  the  case  of  a  sale  with  respect  to  which  'the  [usual  cigarette]  tax 
imposed  by  Section  30101  is  inapplicable,'  the  vendor  is  required  to  collect 
the  tax  from  the  purchaser  either  (a)  at  the  time  of  sale,  if  the  purchaser  is 


14  OCTOBER  TERM,  1985 

STEVENS,  J.,  dissenting  474  U.  S. 

however,  to  disagree  with  the  Court's  conclusion  that  we 
should  undertake  to  decide  the  state-law  question  in  a  case  of 
this  kind.  Even  if  the  Court  is  correct  in  its  view  that  the 
Court  of  Appeals  applied  a  mistaken  standard  in  construing 
the  California  tax,2  that  premise  does  not  justify  the  action  of 
the  Court  today  in  undertaking  to  decide  the  state-law  issue 
on  its  own— particularly  when  that  issue  has  not  been  fully 
briefed  and  argued.  At  most,  the  Court  should  remand  the 
case  to  the  Court  of  Appeals  for  a  reconsideration  under  the 
proper  standard.  Such  a  remand  would  at  least  demonstrate 
that  this  Court  has  not  forgotten  that  "federal  judges  who 
deal  regularly  with  questions  of  state  law  in  their  respective 
districts  and  circuits  are  in  a  better  position  than  we"  to 
interpret  state  law.  Butner  v.  United  States,  440  U.  S.  48, 
58  (1979).  Because  the  Court's  summary  disposition  conveys 
a  different  message,  I  respectfully  dissent. 


then  obligated  to  pay  the  tax,  or  (b)  if  the  purchaser  is  not  then  obligated  to 
pay  the  tax,  at  the  time  the  purchaser  becomes  so  obligated.  Gal.  Rev.  & 
Tax.  Code  §  30108(a)  (West  1979).  Collection  by  the  vendor  is  mandatory, 
but  only  if  and  when  the  purchaser  has  a  tax  obligation.  The  section  does 
not  contain  any  substantive  provisions  that  themselves  impose  any  tax  or 
that  indicate  when  section  30101  is  inapplicable.  Nor  does  it  specify  under 
which  situations  a  purchaser  is  obligated  to  pay  the  tax  at  the  time  of  sale 
or,  if  the  purchaser  is  not  then  obligated,  when  the  purchaser  becomes  so 
obligated.  We  find  no  language  in  section  30108 — the  only  section  on 
which  the  Board  relies  for  its  argument  that  the  incidence  of  the  tax  falls 
upon  the  purchaser — that  remotely  suggests  a  legislative  intent  to  have 
the  purchaser  pay  the  tax  whenever  the  vendor  is  a  non-taxable  entity." 
757  F.  2d  1047,  1056-1057  (CA9  1985)  (footnotes  omitted). 

2  The  portion  of  the  Court  of  Appeals  opinion  which  I  have  quoted  in 
n.  1,  supra,  suggests  that  the  Court  of  Appeals  would  have  reached  the 
same  conclusion  even  if  it  had  not  used  the  unfortunate  word  "explicit"  ear- 
lier in  its  opinion. 


DELAWARE  v.  FENSTERER  15 

Syllabus 

DELAWARE  v.  FENSTERER 

ON   PETITION   FOR    WRIT   OF   CERTIORARI   TO  THE    SUPREME 
COURT  OF  DELAWARE 

No,  85-214.     Decided  November  4,  1985 

During  respondent's  murder  trial  in  a  Delaware  court,  the  State  sought 
to  prove  that  a  cat  leash  was  the  weapon  used  in  strangling  the  victim, 
and  that  a  hair  found  on  the  leash  was  similar  to  the  victim's  hair  and 
had  been  forcibly  removed.  The  State's  expert  witness  testified  that 
in  his  opinion  the  hair  had  been  forcibly  removed  but  stated,  on  both 
direct  examination  and  cross-examination,  that  he  could  not  recall  which 
of  three  methods  he  had  employed  in  determining  that  the  hair  had  been 
forcibly  removed.  The  trial  court  overruled  respondent's  objection 
that  the  admission  of  the  expert's  testimony  precluded  adequate  cross- 
examination  unless  he  could  testify  as  to  which  of  the  methods  he  relied 
upon.  The  defense  offered  its  own  expert,  who  testified  that  he  had 
talked  earlier  with  the  State's  expert  and  had  been  informed  as  to  the 
method  employed  by  the  State's  expert  in  reaching  his  'forcible  re- 
moval" conclusion.  The  defense's  expert  then  proceeded  to  challenge 
the  premise  of  that  method.  Respondent  was  convicted,  but  the  Dela- 
ware Supreme  Court  reversed,  holding  that  because  the  State's  expert 
was  unable  to  recall  the  method  he  used  in  arriving  at  his  opinion,  the 
admission  of  the  opinion  violated  respondent's  rights  under  the  Con- 
frontation Clause  of  the  Sixth  Amendment. 

Held: 

1.  The  admission  of  the  State's  expert's  opinion  did  not  offend  the 
Confrontation  Clause  despite  his  inability  to  recall  the  basis  for  that 
opinion.  This  case  does  not  fall  within  the  category  of  Confrontation 
Clause  cases  involving  the  admission  of  out-of-court  statements  as 
substantive  hearsay  evidence  against  the  defendant  and  his  literal  right 
to  "confront"  the  witness  at  the  time  of  trial.  The  State  made  no 
attempt  to  introduce  an  out-of-court  statement  by  its  expert  for  any 
purpose,  let  alone  as  hearsay.  Nor  does  this  case  fall  within  the  cate- 
gory of  Confrontation  Clause  cases  involving  restrictions  imposed  by  law 
or  by  the  trial  court  on  the  scope  of  cross-examination  of  prosecution  wit- 
nesses. The  trial  court  here  did  not  limit  the  scope  or  nature  of  defense 
counsel's  cross-examination  of  the  State's  expert.  Generally  speaking, 
the  Confrontation  Clause  guarantees  an  opportunity  for  effective  cross- 
examination  (as  in  this  case),  not  cross-examination  that  is  effective  in 
whatever  way,  and  to  whatever  extent,  the  defense  might  wish. 


16  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

2.  The  prosecution's  foreknowledge  that  its  expert  would  be  unable  to 
give  the  precise  basis  for  his  opinion  did  not  impose  an  obligation  on  it,  as 
a  matter  of  due  process,  to  refrain  from  introducing  the  expert's  testi- 
mony unless  the  basis  for  that  testimony  could  definitely  be  ascertained. 
Whether  or  not,  under  state  law,  the  State's  expert's  opinion  should 
have  been  admitted,  the  Federal  Constitution  does  not  forbid  the  trial 
court's  conclusion  that  the  expert's  inability  to  recall  the  basis  for  his 
opinion  went  to  the  weight  of  the  evidence,  not  its  admissibility.  The 
testimony  of  the  defense's  expert,  suggesting  the  actual  basis  for  the 
State's  expert's  opinion  and  disputing  its  validity,  dispels  any  possibility 
of  a  claim  that  the  introduction  of  the  State's  expert's  opinion  was  so 
lacking  in  reliability  and  so  prejudicial  as  to  deny  respondent  a  fair  trial. 
Certiorari  granted;  493  A.  2d  959,  reversed  and  remanded. 

PER  CURIAM. 

In  this  case,  the  Delaware  Supreme  Court  reversed  re- 
spondent William  Fensterer's  conviction  on  the  grounds  that 
the  admission  of  the  opinion  testimony  of  the  prosecution's 
expert  witness,  who  was  unable  to  recall  the  basis  for  his 
opinion,  denied  respondent  his  Sixth  Amendment  right  to 
confront  the  witnesses  against  him.  493  A.  2d  959  (1985). 
We  conclude  that  the  Delaware  Supreme  Court  misconstrued 
the  Confrontation  Clause  as  interpreted  by  the  decisions  of 
this  Court. 

I 

Respondent  was  convicted  of  murdering  his  fiancee,  Steph- 
anie Ann  Swift.  The  State's  case  was  based  on  circumstan- 
tial evidence,  and  proceeded  on  the  theory  that  respondent 
had  strangled  Swift  with  a  cat  leash.  To  establish  that  the 
cat  leash  was  the  murder  weapon,  the  State  sought  to  prove 
that  two  hairs  found  on  the  leash  were  similar  to  Swift's 
hair,  and  that  one  of  those  hairs  had  been  forcibly  removed. 
To  prove  these  theories,  the  State  relied  on  the  testimony 
of  Special  Agent  Allen  Robillard  of  the  Federal  Bureau  of 
Investigation. 

At  trial,  Robillard  testified  that  one  of  the  hairs  had  been 
forcibly  removed.  He  explained  that,  in  his  opinion,  there 
are  three  methods  of  determining  that  a  hair  has  forcibly 


DELAWARE  v.  FENSTERER  1? 

15  Per  Curiam 

been  removed:  (1)  if  the  follicular  tag  is  present  on  the  hair, 
(2)  if  the  root  is  elongated  and  misshaped,  or  (3)  if  a  sheath 
of  skin  surrounds  the  root.  However,  Robillard  went  on  to 
say  that  "'I  have  reviewed  my  notes,  and  I  have  no  specific 
knowledge  as  to  the  particular  way  that  I  determined  the 
hair  was  forcibly  removed  other  than  the  fact  that  one  of 
those  hairs  was  forcibly  removed/"  Id.,  at  963.  On  cross- 
examination,  Agent  Robillard  was  again  unable  to  recall 
which  method  he  had  employed  to  determine  that  the  hair 
had  forcibly  been  removed.  He  also  explained  that  what  he 
meant  by  "forcibly  removed"  was  no  more  than  that  the  hair 
could  have  been  removed  by  as  little  force  as  is  entailed  in 
"^brushing  your  hand  through  your  head  or  brushing  your 
hair.'"  Pet.  for  Cert.  7.  The  trial  court  overruled  respond- 
ent's objection  that  the  admission  of  Robillard's  testimony 
precluded  adequate  cross-examination  unless  he  could  testify 
as  to  which  of  the  three  theories  he  relied  upon,  explaining 
that  in  its  view  this  objection  went  to  the  weight  of  the  evi- 
dence rather  than  its  admissibility. 

The  defense  offered  its  own  expert  in  hair  analysis,  Dr. 
Peter  DeForest,  who  agreed  with  Agent  Robillard  that  the 
hairs  were  similar  to  Swift's.  Doctor  DeForest  testified 
that  he  had  observed  that  one  of  the  hairs  had  a  follicular 
tag.  He  also  testified  that  he  had  spoken  by  telephone  with 
Robillard,  who  advised  him  that  his  conclusion  of  forcible  re- 
moval was  based  on  the  presence  of  the  follicular  tag.  App. 
to  Pet.  for  Cert.  D-2.  Doctor  DeForest  then  proceeded  to 
challenge  the  premise  of  Robillard's  theory— that  the  pres- 
ence of  a  follicular  tag  indicates  forcible  removal.  According 
to  Dr.  DeForest,  no  adequate  scientific  study  supported  that 
premise,  and  a  follicular  tag  could  be  attached  to  hairs  that 
naturally  fall  out. 

On  appeal,  the  Delaware  Supreme  Court  reversed  re- 
spondent's conviction  on  the  authority  of  the  Confrontation 
Clause.  Noting  that  "[t]he  primary  interest  secured  by  the 
Clause  is  the  right  of  cross-examination,"  493  A.  2d,  at  963, 


18  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

the  court  reasoned  that  "[e]ffective  cross-examination  and 
discrediting  of  Agent  Robillard's  opinion  at  a  minimum  re- 
quired that  he  commit  himself  to  the  basis  of  his  opinion." 
Id.,  at  964  (footnote  omitted).  Absent  such  an  acknowledg- 
ment of  the  basis  of  his  opinion,  the  court  believed  that 
"defense  counsel's  cross-examination  of  the  Agent  was  noth- 
ing more  than  an  exercise  in  futility."  Ibid.  Since  the  court 
could  not  rule  out  the  possibility  that  Robillard  could  have 
been  "completely  discredited"  had  he  committed  himself  as  to 
the  theory  on  which  his  conclusion  was  based,  it  held  that  re- 
spondent "was  denied  his  right  to  effectively  cross-examine  a 
key  state  witness."  Ibid.  Accordingly,  the  court  reversed 
without  reaching  respondent's  additional  claim  that  Ro- 
billard's  testimony  was  inadmissible  under  the  pertinent  Del- 
aware Rules  of  Evidence.  We  now  reverse  the  Delaware 
Supreme  Court's  holding  that  Agent  Robillard's  inability  to 
recall  the  method  whereby  he  arrived  at  his  opinion  rendered 
the  admission  of  that  opinion  violative  of  respondent's  rights 
under  the  Confrontation  Clause. 

II 

This  Court's  Confrontation  Clause  cases  fall  into  two  broad 
categories:  cases  involving  the  admission  of  out-of-court 
statements  and  cases  involving  restrictions  imposed  by  law 
or  by  the  trial  court  on  the  scope  of  cross-examination.  The 
first  category  reflects  the  Court's  longstanding  recognition 
that  the  "literal  right  to  'confront'  the  witness  at  the  time 
of  trial  .  .  .  forms  the  core  of  the  values  furthered  by  the 
Confrontation  Clause."  California  v.  Green,  399  U.  S.  149, 
157  (1970).  Cases  such  as  Ohio  v.  Roberts,  448  U.  S.  56 
(1980),  and  Button  v.  Evans,  400  U.  S.  74  (1970),  gave  rise  to 
Confrontation  Clause  issues  "because  hearsay  evidence  was 
admitted  as  substantive  evidence  against  the  defendants." 
Tennessee  v.  Street,  471  U.  S.  409,  413  (1985).  Cf.  Bruton  v. 
United  States,  391  U.  S.  123  (1968). 


DELAWARE  v.  FENSTERER  19 

15  Per  Curiam 

The  second  category  of  cases  is  exemplified  by  Davis  v. 
Alaska,  415  U.  S.  308,  318  (1974),  in  which,  although  some 
cross-examination  of  a  prosecution  witness  was  allowed,  the 
trial  court  did  not  permit  defense  counsel  to  "expose  to  the 
jury  the  facts  from  which  jurors,  as  the  sole  triers  of  fact  and 
credibility,  could  appropriately  draw  inferences  relating  to 
the  reliability  of  the  witness."  As  the  Court  stated  in  Davis, 
supra,  at  315,  "[confrontation  means  more  than  being  al- 
lowed to  confront  the  witness  physically."  Consequently,  in 
Davis,  as  in  other  cases  involving  trial  court  restrictions  on 
the  scope  of  cross-examination,  the  Court  has  recognized  that 
Confrontation  Clause  questions  will  arise  because  such  re- 
strictions may  "effectively  .  .  .  emasculate  the  right  of  cross- 
examination  itself."  Smith  v.  Illinois,  390  U.  S.  129,  131 
(1968). 

This  case  falls  in  neither  category.  It  is  outside  the  first 
category,  because  the  State  made  no  attempt  to  introduce  an 
out-of-court  statement  by  Agent  Robillard  for  any  purpose, 
let  alone  as  hearsay.  Therefore,  the  restrictions  the  Con- 
frontation Clause  places  on  "the  range  of  admissible  hear- 
say," Roberts,  supra,  at  65,  are  not  called  into  play. 

The  second  category  is  also  inapplicable  here,  for  the  trial 
court  did  not  limit  the  scope  or  nature  of  defense  counsel's 
cross-examination  in  any  way.  The  Court  has  recognized 
that  "the  cross-examiner  is  not  only  permitted  to  delve  into 
the  witness'  story  to  test  the  witness'  perceptions  and  mem- 
ory, but  [also]  .  .  .  allowed  to  impeach,  i.  e.,  discredit,  the 
witness."  Davis,  415  U.  S.,  at  316.  But  it  does  not  follow 
that  the  right  to  cross-examine  is  denied  by  the  State  when- 
ever the  witness'  lapse  of  memory  impedes  one  method  of  dis- 
crediting him.  Quite  obviously,  an  expert  witness  who  can- 
not recall  the  basis  for  his  opinion  invites  the  jury  to  find 
that  his  opinion  is  as  unreliable  as  his  memory.  That  the  de- 
fense might  prefer  the  expert  to  embrace  a  particular  theory, 
which  it  is  prepared  to  refute  with  special  vigor,  is  irrelevant. 
"  'The  main  and  essential  purpose  of  confrontation  is  to  secure 


20  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

for  the  opponent  the  opportunity  of  cross-examination.9" 
Id.,  at  315-316  (quoting  5  J.  Wigmore,  Evidence  §1395, 
p.  123  (3d  ed.  1940)  (emphasis  in  original)).  Generally 
speaking,  the  Confrontation  Clause  guarantees  an  opportu- 
nity for  effective  cross-examination,  not  cross-examination 
that  is  effective  in  whatever  way,  and  to  whatever  extent, 
the  defense  might  wish.  See  Roberts,  448  U.  S. ,  at  73,  n.  12 
(even  where  the  only  opportunity  the  defense  has  to  cross- 
examine  the  declarant  is  at  a  preliminary  hearing,  except  in 
"extraordinary  cases"  where  defense  counsel  provided  inef- 
fective representation  at  the  earlier  proceeding,  "no  inquiry 
into  ^effectiveness'  is  required")*  This  conclusion  is  con- 
firmed by  the  fact  that  the  assurances  of  reliability  our  cases 
have  found  in  the  right  of  cross-examination  are  fully  satis- 
fied in  cases  such  as  this  one,  notwithstanding  the  witness' 
inability  to  recall  the  basis  for  his  opinion:  the  factfinder  can 
observe  the  witness'  demeanor  under  cross-examination,  and 
the  witness  is  testifying  under  oath  and  in  the  presence  of  the 
accused.  See  id.,  at  63,  n.  6. 

We  need  not  decide  whether  there  are  circumstances  in 
which  a  witness'  lapse  of  memory  may  so  frustrate  any  oppor- 
tunity for  cross-examination  that  admission  of  the  witness' 
direct  testimony  violates  the  Confrontation  Clause.  In  this 
case,  defense  counsel's  cross-examination  of  Agent  Robillard 
demonstrated  to  the  jury  that  Robillard  could  not  even  re- 
call the  theory  on  which  his  opinion  was  based.  Moreover, 
through  its  own  expert  witness,  the  defense  was  able  to  sug- 
gest to  the  jury  that  Robillard  had  relied  on  a  theory  which 
the  defense  expert  considered  baseless.  The  Confrontation 
Clause  certainly  requires  no  more  than  this. 

Although  Green,  supra,  involved  a  witness  who  professed 
a  lapse  of  memory  on  the  stand,  that  case  lends  no  support 
to  respondent.  In  pertinent  part,  Green  was  a  case  in  which 
a  minor  named  Porter  informed  a  police  officer  of  a  transac- 
tion in  which  he  claimed  Green  supplied  him  with  drugs.  At 
trial,  Porter  professed  to  be  unable  to  recall  how  he  obtained 


DELAWARE  v.  FENSTERER  21 

15  Per  Cur  lam 

the  drugs.  The  prosecution  then  introduced  Porter's  prior 
inconsistent  statements  as  substantive  evidence.  Green,  399 
U.  S.,  at  152.  This  Court  held  that  "the  Confrontation 
Clause  does  not  require  excluding  from  evidence  the  prior 
statements  of  a  witness  who  concedes  making  the  state- 
ments, and  who  may  be  asked  to  defend  or  otherwise  explain 
the  inconsistency  between  his  prior  and  his  present  version  of 
the  events  in  question,  thus  opening  himself  to  full  cross- 
examination  at  trial  as  to  both  stories."  Id.,  at  164.  How- 
ever, the  Court  also  concluded  that,  in  the  posture  of  that 
case,  it  would  be  premature  to  reach  the  question  "[wjhether 
Porter's  apparent  lapse  of  memory  so  affected  Green's  right 
to  cross-examine  as  to  make  a  critical  difference  in  the  appli- 
cation of  the  Confrontation  Clause  .  .  .  ."  Id.,  at  168.  In 
this  connection,  the  Court  noted  that  even  some  who  argue 
that  "prior  statements  should  be  admissible  as  substantive 
evidence"  believe  that  this  rule  should  not  apply  to  "the  case 
of  a  witness  who  disclaims  all  present  knowledge  of  the  ulti- 
mate event,"  because  "in  such  a  case  the  opportunities  for 
testing  the  prior  statement  through  cross-examination  at 
trial  may  be  significantly  diminished."  Id.,  at  169,  n.  18 
(citations  omitted). 

We  need  not  decide  today  the  question  raised  but  not  re- 
solved in  Green.  As  Green's  framing  of  that  question  indi- 
cates, the  issue  arises  only  where  a  "prior  statement,"  not  it- 
self subjected  to  cross-examination  and  the  other  safeguards 
of  testimony  at  trial,  is  admitted  as  substantive  evidence. 
Since  there  is  no  such  out-of-court  statement  in  this  case,  the 
adequacy  of  a  later  opportunity  to  cross-examine,  as  a  substi- 
tute for  cross-examination  at  the  time  the  declaration  was 
made,  is  not  in  question  here. 

Under  the  Court's  cases,  then,  Agent  Robillard's  inability 
to  recall  on  the  stand  the  basis  for  his  opinion  presents  none 
of  the  perils  from  which  the  Confrontation  Clause  protects 
defendants  in  criminal  proceedings.  The  Confrontation 
Clause  includes  no  guarantee  that  every  witness  called  by  the 


22  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

prosecution  will  refrain  from  giving  testimony  that  is  marred 
by  forgetfulness,  confusion,  or  evasion.  To  the  contrary,  the 
Confrontation  Clause  is  generally  satisfied  when  the  defense 
is  given  a  fall  and  fair  opportunity  to  probe  and  expose  these 
infirmities  through  cross-examination,  thereby  calling  to  the 
attention  of  the  factfinder  the  reasons  for  giving  scant  weight 
to  the  witness'  testimony.  Accordingly,  we  hold  that  the  ad- 
mission into  evidence  of  Agent  Robillard's  opinion  did  not  of- 
fend the  Confrontation  Clause  despite  his  inability  to  recall 
the  basis  for  that  opinion. 

The  Delaware  Supreme  Court  also  appears  to  have  be- 
lieved that  the  prosecution  breached  its  "serious  obligation 
not  to  obstruct  a  criminal  defendant's  cross-examination  of 
expert  testimony,"  493  A.  2d,  at  963,  seemingly  because  the 
prosecution  knew  in  advance  that  Agent  Robillard  would  be 
unable  to  recall  the  basis  for  his  opinion  when  he  testified  at 
trial.     While  we  would  agree  that  Robillard's  testimony  at 
the  voir  dire  examination  must  be  taken  to  have  alerted  both 
the  prosecution  and  the  defense  to  his  lapse  of  memory,  see 
App.  to  Brief  in  Opposition  A-l,  we  do  not  think  the  prose- 
cution was  obliged  to  refrain  from  calling  Robillard  unless  it 
could  somehow  refresh  his  recollection.      Whether  or  not, 
under  state  law,  Robillard's  opinion  should  have  been  admit- 
ted into  evidence,  nothing  in  the  Federal  Constitution  forbids 
the  conclusion  reached  by  the  trial  court  in  this  case:  that  the 
expert's  inability  to  recall  the  basis  for  his  opinion  went  to  the 
weight  of  the  evidence,  not  its  admissibility.      See  United 
States  v.  Bastanipour,  697  F.  2d  170,  176-177  (CA7  1982), 
cert,  denied,  460  U.  S.  1091  (1983).     That  being  so,  the  pros- 
ecution's foreknowledge  that  its  expert  would  be  unable  to 
give  the  precise  basis  for  his  opinion  did  not  impose  an  obliga- 
tion on  it,  as  a  matter  of  due  process,  to  refrain  from  intro- 
ducing the  expert's  testimony  unless  the  basis  for  that  testi- 
mony could  definitely  be  ascertained.     We  need  not  decide 
whether  the  introduction  of  an  expert  opinion  with  no  basis 
could  ever  be  so  lacking  in  reliability,  and  so  prejudicial,  as  to 


DELAWARE  v.  FENSTERER  23 

15  STEVENS,  J. ,  concurring  in  judgment 

deny  a  defendant  a  fair  trial.  The  testimony  of  Dr.  DeFor- 
est,  suggesting  the  actual  basis  for  Robillard's  opinion  and 
vigorously  disputing  its  validity,  utterly  dispels  any  possibil- 
ity of  such  a  claim  in  this  case. 

The  petition  for  certiorari  is  granted,  the  judgment  of  the 
Delaware  Supreme  Court  is  reversed,  and  the  case  is  re- 
manded to  that  court  for  further  proceedings  not  inconsistent 
with  this  opinion. 

It  is  so  ordered. 

JUSTICE  MARSHALL  dissents  from  this  summary  dispo- 
sition, which  has  been  ordered  without  affording  the  parties 
prior  notice  or  an  opportunity  to  file  briefs  on  the  merits. 
See  Maggio  v.  Fulford,  462  U.  S.  Ill,  120-121  (1983)  (MAR- 
SHALL, J.,  dissenting);  Wyrick  v.  Fields,  459  U.  S.  42,  51-52 
(1982)  (MARSHALL,  J.,  dissenting). 

JUSTICE  BLACKMUN  would  grant  certiorari  and  give  this 
case  plenary  consideration. 

JUSTICE  STEVENS,  concurring  in  the  judgment. 

Summary  reversal  of  a  state  supreme  court's  application 
of  federal  constitutional  strictures  to  its  own  police  and 
prosecutors  in  novel  cases  of  this  kind  tends  to  stultify 
the  orderly  development  of  the  law.  Because  I  believe  this 
Court  should  allow  state  courts  some  latitude  in  the  admin- 
istration of  their  criminal  law,1  I  voted  to  deny  certiorari. 
Cf.  California  v.  Carney,  471  U.  S.  386,  395  (1985)  (STE- 
VENS, J.,  dissenting). 

On  the  merits,  I  find  the  issue  much  closer  to  the  question 
reserved  in  California  v.  Green,  399  U.  S.  149,  168-170 


1  In  California  v.  Green,  399  U.  S.  149,  171  (1970),  THE  CHIEF  JUSTICE 
wrote  separately  "to  emphasize  the  importance  of  allowing  the  States  to 
experiment  and  innovate,  especially  in  the  area  of  criminal  justice."  He 
correctly  observed  that  "neither  the  Constitution  as  originally  drafted,  nor 
any  amendment,  nor  indeed  any  need,  dictates  that  we  must  have  absolute 
uniformity  in  the  criminal  law  in  all  the  States."  Id.,  at  171-172. 


24  OCTOBEE  TERM,  1985 

STEVENS,  J.,  concurring  in  judgment  474  U.  S. 

(1970),  than  does  the  Court.  The  question  reserved  in  Green 
concerned  the  admissibility  of  an  earlier  out-of-court  state- 
ment by  the  witness  Porter  of  which  Porter  disclaimed  any 
present  recollection  at  the  time  of  trial.2  The  question 
decided  by  the  Court  today  concerns  the  admissibility  of  an 
earlier  out-of-court  conclusion  reached  by  a  witness  who  dis- 
claims any  present  recollection  of  the  basis  for  that  con- 
clusion. The  reasons  for  carefully  reserving  the  question 
in  Green  persuade  me  that  this  case  should  not  be  decided 
without  full  argument.  Nevertheless,  because  the  Court  has 
granted  certiorari  and  decided  to  act  summarily,  because  I 
am  not  persuaded  that  the  Federal  Constitution  was  violated, 
and  because  the  State  Supreme  Court  remains  free  to  rein- 
state its  judgment  on  the  basis  of  its  interpretation  of  state 
law,  I  reluctantly  concur  in  the  judgment. 


2  "Whether  Porter's  apparent  lapse  of  memory  so  affected  Green's  right 
to  cross-examine  as  to  make  a  critical  difference  in  the  application  of  the 
Confrontation  Clause  in  this  case  is  an  issue  which  is  not  ripe  for  decision  at 
this  juncture"  (footnote  omitted).  Id.,  at  168-169.  See  also  id.,  at  169, 
n.  18. 


LANIER  v.  SOUTH  CAROLINA  25 

Per  Curiam 

LANIER  v.  SOUTH  CAROLINA 

ON  PETITION  FOR  WRIT  OF  CERTIORARI  TO  THE  COURT  OF 
APPEALS  OF  SOUTH  CAROLINA 

No.  85-5260.     Decided  November  4,  1985 

Petitioner,  who  was  convicted  of  armed  robbery,  contended  that  the  South 
Carolina  trial  court  should  have  suppressed  his  confession  as  being  the 
product  of  an  illegal  arrest.  The  South  Carolina  Court  of  Appeals  af- 
firmed the  trial  court,  holding  that,  even  assuming  petitioner's  arrest 
was  illegal,  the  confession  was  admissible  because  voluntariness  was  the 
test  of  admissibility  and  petitioner  did  not  claim  that  his  confession  was 
not  voluntary. 

Held:  The  South  Carolina  Court  of  Appeals'  judgment  is  vacated,  and  the 
case  is  remanded,  because  the  court's  reasoning  is  inconsistent  with  well- 
established  precedent  holding  that  a  finding  of  voluntariness  of  a  con- 
fession for  Fifth  Amendment  purposes  is  not  by  itself  sufficient  to  purge 
the  taint  of  an  illegal  arrest,  but  is  merely  a  threshold  requirement  for 
Fourth  Amendment  analysis. 

Certiorari  granted;  vacated  and  remanded. 

PER  CURIAM. 

The  motion  for  leave  to  proceed  in  forma  pauperis  is 
granted.  The  petition  for  a  writ  of  certiorari  is  granted. 

Petitioner  was  convicted  of  armed  robbery.  He  contends 
that  his  confession  should  have  been  suppressed  because  it 
was  the  product  of  an  illegal  arrest.  The  South  Carolina 
Court  of  Appeals  affirmed  the  trial  court's  rejection  of  his 
motion  to  suppress  the  confession: 

"Assuming,  without  deciding,  that  Lanier's  arrest  was 
illegal,  we  nevertheless  hold  his  confession  was  admissi- 
ble. A  confession  made  while  the  accused  is  in  custody 
before  any  warrant  for  his  arrest  has  been  issued  is  not 
per  se  inadmissible.  State  v.  Funchess,  255  S.  C.  385, 
179  S.  E.  2d  25,  cert,  denied,  404  U.  S.  915,  92  S.  Ct. 
236,  30  L.  Ed.  2d  189  (1971).  Voluntariness  remains  as 
the  test  of  admissibility.  Id.  Even  if  the  arrest  was 


26  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

illegal,  the  confession  will  be  admissible  if  it  is  freely  and 
voluntarily  given.  State  v.  Plath,  277  S.  C.  126,  284 
S.  E.  2d  221  (1981).  Since  Lanier  does  not  claim  his 
confession  was  not  voluntary,  his  argument  that  the 
confession  was  inadmissible  is  without  merit."  App.  to 
Pet.  for  Cert.  A-2. 

The  South  Carolina  Supreme  Court  declined  farther  review. 
Under  well-established  precedent,  "the  fact  that  [a]  confes- 
sion may  be  Voluntary"  for  purposes  of  the  Fifth  Amend- 
ment, in  the  sense  that  Miranda  warnings  were  given  and 
understood,  is  not  by  itself  sufficient  to  purge  the  taint  of  the 
illegal  arrest.  In  this  situation,  a  finding  of  'voluntariness' 
for  purposes  of  the  Fifth  Amendment  is  merely  a  threshold 
requirement  for  Fourth  Amendment  analysis."  Taylor  v. 
Alabama,  457  U.  S.  687,  690  (1982).  See  also  Dunaway  v. 
New  York,  442  U.  S.  200,  217-218  (1979);  Brown  v.  Illinois, 
422  U.  S.  590,  602  (1975).  .  The  reasoning  of  the  South  Caro- 
lina Court  of  Appeals  is  inconsistent  with  those  cases.  We 
therefore  vacate  the  judgment  and  remand  the  case  to  that 
court  for  further  proceedings. 

It  is  so  ordered. 

JUSTICE  O'CONNOR,  with  whom  JUSTICE  REHNQUIST 
joins,  concurring  in  the  judgment. 

I  concur  in  the  judgment  of  the  Court  vacating  the  judg- 
ment and  remanding  this  case  to  the  South  Carolina  Court  of 
Appeals.  For  the  reasons  stated  in  my  opinion  in  Taylor  v. 
Alabama,  457  U.  S.  687,  694  (1982)  (O'CONNOR,  J.,  dissent- 
ing), I  believe  the  court  on  remand  can  consider  the  timing, 
frequency,  and  likely  effect  of  whatever  Miranda  warnings 
were  given  to  petitioner  as  factors  relevant  to  the  question 
whether,  if  petitioner  was  illegally  arrested,  his  subsequent 
confession  was  tainted  by  the  illegal  arrest. 

JUSTICE  MARSHALL  dissents  from  this  summary  dispo- 
sition, which  has  been  ordered  without  affording  the  parties 
prior  notice  or  an  opportunity  to  file  briefs  on  the  merits. 


Lfati 


J      I 


y 


28  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

PENNSYLVANIA  v.  GOLDHAMMER 

ON   PETITION   FOR   WRIT   OF   CERTIORARI   TO   THE    SUPREME 
COURT  OF  PENNSYLVANIA,  EASTERN  DISTRICT 

No.  84-1852.     Decided  November  12,  1985 

Respondent  was  convicted  in  a  Pennsylvania  trial  court  on  multiple  counts 
of  theft  and  multiple  counts  of  forgery.  He  -was  sentenced  to  two-to-five 
years  of  imprisonment  on  a  single  theft  count  and  five  years  of  probation 
on  one  of  the  forgery  counts.  Sentence  was  suspended  on  the  remaining 
counts.  On  respondent's  appeal,  the  Pennsylvania  Superior  Court  held 
that  the  statute  of  limitations  barred  the  prosecution  of  several  of  the 
theft  counts,  including  the  count  on  which  respondent  had  received  his 
sentence  of  imprisonment.  On  the  Commonwealth's  appeal,  the  Penn- 
sylvania Supreme  Court  affirmed  the  Superior  Court's  ruling  on  the  stat- 
ute of  limitations,  and  denied  the  Commonwealth's  request  that  the  case 
be  remanded  to  the  trial  court  for  resentencing  on  the  remaining  theft 
counts.  The  court  acknowledged  that  a  defendant  could  be  twice  sen- 
tenced for  the  same  count  when  there  was  an  intervening  retrial  at  the 
defendant's  request,  but  it  held  that  resentencing  on  the  counts  which 
were  affirmed  after  an  appeal  by  the  Commonwealth  was  barred  by  the 
Double  Jeopardy  Clause  when  the  sentence  of  imprisonment  on  another 
count  was  vacated. 

Held:  The  Pennsylvania  Supreme  Court's  rationale  was  inconsistent  with 
the  rationale  of  the  holding  in  United  States  v.  DiFrancesco,  449  U.  S. 
117,  that  the  Double  Jeopardy  Clause  was  not  violated  by  18  U.  S.  C. 
§  3576,  which  allows  the  United  States  to  appeal  to  a  court  of  appeals  the 
sentence  given  a  "dangerous  special  offender"  by  a  district  court,  and  al- 
lows the  court  of  appeals  to  affirm  the  sentence,  impose  a  different  sen- 
tence, or  remand  to  the  district  court  for  further  sentencing  proceedings. 
Since  the  Pennsylvania  Supreme  Court  in  this  case  held  that  resentenc- 
ing was  barred  by  the  Double  Jeopardy  Clause,  it  did  not  consider 
whether  Pennsylvania  laws  in  effect  at  the  time  allowed  the  State  to  ob- 
tain review  of  the  sentences  on  the  counts  for  which  the  sentence  had 
been  suspended.  Accordingly,  the  judgment  is  reversed,  and  the  case  is 
remanded  for  a  determination  of  that  issue  and  for  further  consideration 
in  light  of  DiFrancesco. 

Certiorari  granted;  507  Pa.  236,  489  A.  2d  1307,  reversed  and  remanded. 

PER  CURIAM. 

The  Supreme  Court  of  Pennsylvania  held  below  that  the 
Double  Jeopardy  Clause  of  the  Fifth  Amendment  of  the 


PENNSYLVANIA  v.  GOLDHAMMER  29 

28  Per  Curiam 

United  States  Constitution  barred  the  resentencing  of  re- 
spondent. 507  Pa.  236,  489  A.  2d  1307  (1985).  We  grant 
certiorari,  and,  on  the  basis  of  our  decision  in  United  States 
v.  DiFrancesco,  449  U.  S.  117  (1980),  we  reverse  and  re- 
mand. The  motion  of  respondent  for  leave  to  proceed  in 
forma  pauper  is  is  granted. 

Respondent  was  convicted  in  the  Philadelphia  Court  of 
Common  Pleas  on  56  counts  of  forgery  and  56  counts  of  theft. 
He  was  sentenced  by  the  trial  court  to  two-to-five  years  of 
imprisonment  on  a  single  theft  count  and  five  years  of  proba- 
tion on  one  of  the  forgery  counts.  Sentence  was  suspended 
on  the  remaining  counts. 

Respondent  appealed  all  112  convictions  to  the  Superior 
Court  of  Pennsylvania.  That  court  ruled  that  the  statute  of 
limitations  barred  the  prosecution  of  34  of  the  theft  counts, 
including  the  count  on  which  respondent  had  received  his 
sentence  of  imprisonment. 

On  appeal  by  the  Commonwealth,  the  Supreme  Court  of 
Pennsylvania  affirmed  the  Superior  Court's  ruling  on  the 
statute  of  limitations.  In  addition,  the  Supreme  Court  of 
Pennsylvania  denied  petitioner's  request  that  the  case  be  re- 
manded to  the  trial  court  for  resentencing  on  the  remaining 
22  theft  counts.  The  court  acknowledged  that  a  defendant 
could  be  twice  sentenced  for  the  same  count  when  there  was 
an  intervening  retrial  at  the  request  of  the  defendant,  but  it 
held  that  resentencing  on  the  counts  which  were  affirmed 
after  an  appeal  by  the  Commonwealth  is  barred  by  the  Dou- 
ble Jeopardy  Clause  when  the  sentence  of  imprisonment  on 
another  count  is  vacated.  507  Pa.,  at  248-251,  489  A.  2d, 
at  1314-1315,  citing  North  Carolina  v.  Pearce,  395  U.  S.  711 
(1969). 

The  Pennsylvania  Supreme  Court's  rationale  is  inconsist- 
ent with  the  rationale  of  the  holding  of  this  Court  in  DiFran- 
cesco, supra.  In  DiFrancesco  we  upheld  the  constitutional- 
ity of  18  U.  S.  C.  §3576,  which  allows  the  United  States  to 
appeal  to  the  court  of  appeals  the  sentence  given  a  "danger- 
ous special  offender"  by  a  district  court,  and  allows  the  court 


30  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

of  appeals  to  affirm  the  sentence,  impose  a  different  sen- 
tence, or  remand  to  the  district  court  for  further  sentencing 
proceedings. 

We  noted  that  the  decisions  of  this  Court  "clearly  establish 
that  a  sentencing  in  a  noncapital  case]  does  not  have  the 
qualities  of  constitutional  finality  that  attend  an  acquittal." 
DiFrancesco,  supra,  at  134.  In  North  Carolina  v.  Pearce, 
supra,  we  held  that  a  court  could  sentence  a  defendant  on  re- 
trial more  severely  than  after  the  first  trial.  Any  distinction 
between  the  situation  in  Pearce  and  that  in  DiFrancesco  is 
"no  more  than  a  'conceptual  nicety.'"  DiFrancesco,  supra, 
at  136  (quoting  Pearce,  supra,  at  722).  Indeed,  a  resentenc- 
ing  after  an  appeal  intrudes  even  less  upon  the  values  pro- 
tected by  the  Double  Jeopardy  Clause  than  does  a  resentenc- 
ing  after  retrial: 

"[T]he  basic  design  of  the  double  jeopardy  provision  [is 
to]  bar  .  .  .  repeated  attempts  to  convict,  with  conse- 
quent subjection  of  the  defendant  to  embarrassment,  ex- 
pense, anxiety,  and  insecurity,  and  the  possibility  that 
he  may  be  found  guilty  even  though  innocent.  These 
considerations,  however,  have  no  significant  application 
to  the  prosecution's  statutorily  granted  right  to  review  a 
sentence.  This  limited  appeal  does  not  involve  a  retrial 
or  approximate  the  ordeal  of  a  trial  on  the  basic  issue  of 
guilt  or  innocence."  DiFrancesco,  supra,  at  136. 

In  DiFrancesco  a  federal  statute  clearly  allowed  the  appel- 
late review  of  the  sentences  at  issue.  The  Court  noted  that, 
in  light  of  that  statute,  the  defendant  could  not  claim  any 
expectation  of  finality  in  his  original  sentencing.  449  U.  S. , 
at  136,  139.  Here,  because  the  Pennsylvania  Supreme  Court 
held  that  resentencing  was  barred  by  the  Double  Jeopardy 
Clause,  there  was  no  need  to  consider  below  whether  the 
Pennsylvania  laws  in  effect  at  the  time  allowed  the  State  to 
obtain  review  of  the  sentences  on  the  counts  for  which  the 
sentence  had  been  suspended.  We  reverse  and  remand  the 


PENNSYLVANIA  u  GOLDHAMMER  31 

28  STEVENS,  J.,  dissenting 

case  to  the  Supreme  Court  of  Pennsylvania  for  a  determina- 
tion of  that  issue,  and  for  further  consideration  of  this  case  in 
light  of  DiFrancesco,  supra. 

Reversed  and  remanded. 

JUSTICE  BRENNAN  dissents  from  summary  disposition  and 
would  vote  to  deny  the  petition. 

JUSTICE  MARSHALL,  dissents  from  this  summary  dispo- 
sition, which  has  been  ordered  without  affording  the  parties 
prior  notice  or  an  opportunity  to  file  briefs  on  the  merits. 
See  Maggio  v.  Fulford,  462  U.  S.  Ill,  120-121  (1983)  (MAR- 
SHALL, J.,  dissenting);  Wyrick  v.  Fields,  459  U.  S.  42,  51-52 
(1982)  (MARSHALL,  J. ,  dissenting). 

JUSTICE  BLACKMUN  would  grant  the  petition  and  set  the 
case  for  argument. 

JUSTICE  STEVENS,  dissenting. 

In  United  States  v.  DiFrancesco,  449  U.  S.  117  (1980),  this 
Court  upheld  the  constitutionality  of  a  federal  statute  that 
permitted  Government  appeals  from  certain  sentences. 
Today,  the  Court  summarily  reverses  because  it  finds  that 
the  "Pennsylvania  Supreme  Court's  rationale  is  inconsistent 
with  the  rationale  of  the  holding  of  this  Court  in  DiFran- 
cesco." Ante,  at  29. 

The  Pennsylvania  Supreme  Court  opinion  does  not  mention 
DiFrancesco.  The  appellate  briefs  before  the  Pennsylvania 
court  did  consider  that  case,  however.1  Indeed,  Mr.  Gold- 
hammer  argued  that  DiFrancesco  did  not  govern  precisely 
because  no  Pennsylvania  statute  authorized  government 
appeals  of  sentences  at  the  time  of  his  conviction  and  sen- 
tencing.2 Mr.  Goldhammer  has  raised  the  same  argument 

1  See  Brief  for  Appellant  in  No.  CR  84-1852,  p.  13,  n.  3;  Brief  for  Appel- 
lee in  No.  CR  84-1852,  pp.  13-15. 

2  See  id. ,  at  14  ("At  the  time  the  instant  case  arose  in  Pennsylvania,  the 
Commonwealth  did  not  have  the  right  to  appeal  from  a  sentence.     That 
right  did  not  exist  until  the  sentencing  guidelines  were  approved  in  July, 
1982.     See  42  Pa.  C.  S.  A.  §  9781"). 


32  OCTOBER  TERM,  1985 

STEVENS,  J.,  dissenting  474  U.  S. 

before  this  Court  in  his  response  to  the  Commonwealth's  pe- 
tition.3 Moreover,  it  should  be  noted  that,  unlike  the  situa- 
tion in  DiFrancesco,  the  Pennsylvania  prosecutor  made  no 
attempt  to  take  an  appeal  from  the  sentences  imposed  by  the 
trial  court.  The  Commonwealth,  in  its  petition  and  in  its 
reply,  has  not  adequately  addressed  these  points. 

The  majority  recognizes  that  the  Pennsylvania  court's 
judgment  may  ultimately  be  supported  by  state-law  grounds. 
See  ante,  at  30-31.  In  view  of  that  uncertainty,  and  in 
view  of  the  Commonwealth's  failure  to  address  this  important 
issue,  I  would  simply  deny  certiorari.4  I  would  presume 
that  the  Pennsylvania  Supreme  Court  determined  that  Di- 
Francesco did  not  govern  for  the  plausible  state-law  reason 
that  had  been  argued  to  it. 

Three  factors  support  this  presumption.  First,  Pennsyl- 
vania's current  statutory  framework  for  permitting  govern- 
ment appeals  from  sentences  was  not  in  place  at  the  time  of 
Mr.  Goldhammer's  conviction  and  sentencing.6  Second, 
Pennsylvania  courts  are  now  applying  the  new  statutory 
framework,6  with  full  knowledge  of  DiFrancesco.7  Third, 


3  See  Brief  in  Opposition  9,  n.  6  ("At  the  time  of  the  trial  and  sentence 
here,   there  was  no  statutory  provision  in  Pennsylvania  for  appeal  of 
sentences"). 

4  See  this  Court's  Rule  21.5  ("The  failure  of  a  petitioner  to  present  with 
accuracy,  brevity,  and  clearness  whatever  is  essential  to  a  ready  and  ade- 
quate understanding  of  the  points  requiring  consideration  will  be  a  suffi- 
cient reason  for  denying  his  petition"). 

6  See  42  Pa.   Cons.   Stat.   §9781  (1982);  204  Pa.   Code  §303.1  et  seq. 
(1982),  reproduced  following  Pa.  Stat.  Ann.,  Tit.  42,  §  9721  (Purdon  1982). 

6  See,  e.  g.,  Commonwealth  v.  Dixon,  344  Pa.  Super.  293,  496  A.  2d 
802  (1985);  Commonwealth  v.  Hutchinson,  343  Pa.  Super.  596,  495  A.  2d 
956  (1985);  Commonwealth  v.  Drumgoole,  341  Pa.  Super.  468,  491  A.  2d 
1352  (1985). 

7  See  Commonwealth  v.  Drumgoole,  supra,  at  477,  n.  2,  491  A.  2d,  at 
1356,  n.  2  ("Appellee  also  suggests  that  to  grant  the  relief  sought  by  the 
Commonwealth  *would  appear  to  be  a  violation  of  the  Fifth  Amendment 
Constitutional  guarantee  against  double  jeopardy/     This  argument  has 


PENNSYLVANIA  v.  GOLDHAMMER  33 

28  STEVENS,  J.,  dissenting 

and  perhaps  most  importantly,  we  should  assume  that  a 
State  Supreme  Court  is  familiar  with  this  Court's  precedents 
and  with  its  own  State's  law.  Because  the  majority's  sum- 
mary reversal  reflects  a  contrary  assumption,  I  respectfully 
dissent. 


been  resolved  contrary  to  appellee's  claim.      United  States  v.  DiFrancesco, 
449  U.  S.  117  .  .  ."). 


34  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

PENNSYLVANIA  BUREAU  OF  CORRECTION  v. 
UNITED  STATES  MARSHALS  SERVICE  ET  AL. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  THIRD  CIRCUIT 

No.  84-489.     Argued  October  15,  1985— Decided  November  18,  1985 

A  Pennsylvania  state  prisoner  temporarily  confined  in  the  Philadelphia 
County  jail  brought  suit  in  Federal  District  Court  under  42  U.  S.  C. 
§  1983  against  various  county  officials,  alleging  that  they  had  beaten  and 
harassed  him.  The  court  assigned  the  action  to  a  Magistrate,  who  is- 
sued writs  of  habeas  corpus  ad  testificandum  for  the  producing  of  state 
prisoners,  including  the  plaintiff,  as  witnesses.  The  order  directed  the 
state  Wardens  to  transport  the  prisoners  to  the  county  jail  nearest  the 
federal  court,  and  then  directed  the  United  States  Marshals  Service  (re- 
spondent) to  transport  the  prisoners  from  the  county  jail  to  the  federal 
court.  Respondent's  motion  for  reconsideration  of  the  latter  part  of  the 
order  was  denied.  The  Court  of  Appeals  reversed  in  pertinent  part, 
holding  that  the  All  Writs  Act  .did  not  confer  power  on  the  District  Court 
to  compel  noncustodians  to  bear  the  expense  of  producing  the  prisoner- 
witnesses. 

Held:  There  is  no  statutory  authority  for  the  order  in  question.  Pp.  37- 
43. 

(a)  Title  28  U.  S.  C.  §§  567  and  569(b)  merely  enumerate  respondent's 
obligations  to  obey  a  federal  court's  mandate  and  to  transport  prisoners 
if  the  court  so  orders.     The  court's  authority  to  issue  such  mandates 
must  derive  from  some  independent  source.     Pp.  37-38. 

(b)  The  habeas  corpus  statutes -28  U.  S.  C.  §§2241(c)(5)  and  2243- 
do  not  authorize  a  federal  court  to  direct  a  writ  ad  testificandum  to  par- 
ties who  do  not  have  custody  of  the  prisoner.     There  is  no  evidence  in 
the  language  of  §§2241  and  2243,  in  their  legislative  history,  or  in  the 
common-law  writ  ad  testificandum  that  courts  are  empowered  to  cause 
third  parties  who  are  neither  custodians  nor  parties  to  the  litigation  to 
bear  the  cost  of  producing  the  prisoner  in  federal  court.    Nor  does  Carbo 
v.  United  States,  364  U.  S.  611,  support  an  expansive  reading  of  the 
power  conferred  upon  federal  district  courts  by  the  writ  of  habeas  corpus 
ad  testificandum.     Pp.  38-39. 

(c)  The  All  Writs  Act  does  not  confer  authority  upon  a  federal  court  to 
issue  an  order  such  as  the  one  at  issue.    An  examination  of  the  Act,  its 
legislative  history,  and  this  Court's  past  interpretations  of  the  Act  all 
support  this  conclusion.     Although  the  Act  empowers  federal  courts  to 


PA.  BUREAU  OF  CORRECTION  v.  U.  S.  MARSHALS  35 

34  Opinion  of  the  Court 

fashion  extraordinary  remedies  when  the  need  arises,  it  does  not  author- 
ize them  to  issue  ad  hoc  writs  whenever  compliance  with  statutory  pro- 
cedures appears  inconvenient  or  less  appropriate.     Pp.  40—43. 
737  F.  2d  1283,  affirmed. 

POWELL,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER,  C.  J. , 
and  BEENNAN,  WHITE,  MARSHALL,  BLACKMUNT,  REHNQUIST,  and  O'CON- 
NOR, JJ.,  joined.  STEVENS,  J.,  filed  a  dissenting  opinion,  post,  p.  43. 

Leroy  S.  Zimmerman,  Attorney  General  of  Pennsylvania, 
argued  the  cause  for  petitioner.  With  him  on  the  briefs  were 
Maria  Parisi  Vickers,  Andrew  S.  Gordon,  and  Allen  C.  War- 
shaw,  Senior  Deputy  Attorneys  General. 

Mark  I.  Levy  argued  the  cause  for  respondents.  With  him 
on  the  brief  were  Acting  Solicitor  General  Fried,  Acting  As- 
sistant Attorney  General  Willard,  Deputy  Solicitor  General 
Geller,  and  Barbara  L.  Henuig. 

JUSTICE  POWELL  delivered  the  opinion  of  the  Court. 

The  question  presented  is  whether  a  United  States  district 
court  may  compel  the  United  States  Marshals  Service  to 
transport  state  prisoners  to  the  federal  courthouse  to  testify 
in  an  action  brought  under  42  U.  S.  C.  §  1983  by  a  state  pris- 
oner against  county  officials. 


In  June  1980,  Richard  Garland  brought  suit  under  42 
U,  S.  C.  §  1983  against  various  Philadelphia  County  officials 
in  the  United  States  District  Court  for  the  Eastern  District 
of  Pennsylvania,  alleging  that  he  had  been  beaten  and  ha- 
rassed by  the  defendant  deputy  sheriffs  and  prison  guards. 
At  the  time  Garland  filed  this  suit,  he  was  incarcerated  in  the 
Philadelphia  County  jail,  but  was  subsequently  transferred 
to  a  state  facility.  The  District  Court  assigned  the  action  to 
a  Magistrate  for  disposition  on  the  merits. 

In  December  1982,  the  Magistrate  issued  writs  of  habeas 
corpus  ad  testificandum  to  produce  five  witnesses,  including 
plaintiff  Garland.  At  that  time,  Garland  was  in  a  state  cor- 


36  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

rectional  facility  in  Huntingdon,  approximately  220  miles 
from  Philadelphia.  The  other  four  witnesses  were  all  con- 
fined in  state  facilities  over  100  miles  from  Philadelphia. 
The  orders  directed  the  Wardens  of  the  state  facilities  to 
transport  inmates  from  state  prison  to  the  county  jail  nearest 
the  federal  courthouse  in  Philadelphia.  The  orders  then 
commanded  the  United  States  Marshals  Service  (Marshals) 1 
to  transport  the  inmates  from  that  county  facility  to  the  fed- 
eral court  and  to  maintain  custody  of  them  during  trial.  The 
Marshals  unsuccessfully  moved  for  reconsideration  of  that 
portion  of  the  order  that  directed  them  to  transport  the  state 
prisoners  from  the  county  jail  to  the  federal  courthouse  and 
to  guard  them  during  trial. 

On  the  Marshals'  appeal  from  this  denial,  the  Court  of  Ap- 
peals for  the  Third  Circuit  reversed  in  part,  holding  that  the 
All  Writs  Act  did  not  confer  power  upon  the  District  Court 
"to  compel  non-custodians  to  bear  the  expense  of  [the  pro- 
duction of  witnesses]  simply  because  they  have  access  to  a 
deeper  pocket."  Garland  v.  Sullivan,  737  F.  2d  1283,  1287 
(1984)  (emphasis  in  original).2  The  Court  of  Appeals  did 
find,  however,  that  the  District  Court  has  the  power  to  com- 
pel the  Marshals  to  take  custody  of  state  prisoners  while 
those  prisoners  are  in  the  federal  courthouse  in  connection 

1  The  Marshals  are  within  the  Executive  Branch  of  the  Federal  Govern- 
ment.    The  Marshal  for  each  district  is  appointed  by  the  President,  28 
U.  S.  C.  §  561  (a),  is  subject  to  the  supervision  and  direction  of  the  Attor- 
ney General,  see,  e.  g.,  §§562,  567,  569(c),  571(a)  and  (d),  and  is  funded 
through  Department  of  Justice  appropriations,  e.  g.t  §567. 

2  Judge  Becker  concurred  in  the  judgment,  believing  the  court  to  be 
bound  by  McClung  v.  Silliman,  6  Wheat.   598  (1821),  and  Mclntire  v. 
Wood,  1  Cranch  504  (1813).     He  hoped  that  this  Court  would  "find  that, 
because  statutes  can  adapt  to  fit  the  needs  of  changing  times,  the  All  Writs 
Act  now  permits  what,  in  the  time  of  Mclntire  and  McClung  it  did  not." 
737  F.  2d,  at  1292  (footnote  omitted).     Judge  Atkins,  sitting  by  designa- 
tion from  the  Southern  District  of  Florida,  concurred  in  part  and  dissented 
in  part,  believing  that  the  Third  Circuit  could  impose  a  duty  on  the  Mar- 
shals to  transport  state  prisoners.     Ibid. 


PA.  BUREAU  OF  CORRECTION  v.  U.  S.  MARSHALS  37 

34  Opinion  of  the  Court 

with  federal  judicial  proceedings.  Ibid.  Finally,  the  court 
held  that  the  District  Court  could  order  the  Marshals  to  take 
custody  of  state  prisoners  if  the  trial  court  made  a  spe- 
cific finding  that  special  security  risks  required  that  state 
prisoner- witnesses  be  in  the  Marshals'  custody  away  from  the 
federal  courthouse.  Id. ,  at  1289. 

The  Commonwealth  Bureau  of  Correction  (Common- 
wealth) petitioned  this  Court  for  a  writ  of  certiorari  on  the 
question  whether  a  federal  court  can  command  the  Marshals 
to  share  responsibility  with  state  officials  for  transporting 
state  inmates  to  the  federal  courthouse  when  neither  the 
State  nor  any  state  official  is  a  party.3  Because  this  case 
presents  a  recurrent  problem  on  which  the  Circuits  differ,  we 
granted  the  writ.  469  U.  S.  1206  (1985).  We  find  that 
there  is  no  statutory  authority  for  a  United  States  district 
court  to  command  the  Marshals  to  take  custody  of  state  pris- 
oners outside  the  federal  courthouse  during  the  normal 
course  of  producing  state  prisoner-witnesses  for  trial,  and 
accordingly  affirm. 

II 

The  Commonwealth  argues  that  the  Marshals  have  a  statu- 
tory obligation  to  obey  the  lawful  orders  and  writs  of  the  fed- 
eral courts,  28  U.  S.  C.  §569(b),  and  are  statutorily  author- 
ized to  expend  funds  for  the  specific  purpose  of  transporting 
prisoners,  §  567.  It  also  contends  that  these  provisions  rec- 
ognize the  authority  of  the  district  courts  to  seek  assistance 
from  the  Marshals.  Two  Circuits  have  summarily  agreed. 
Ford  v.  Allen,  728  F.  2d  1369,  1370  (CA11  1984)  (per 
curiam);  Ballard  v.  Spradley,  557  F.  2d  476,  481  (CA5  1977). 
Two  other  Circuits  have  relied  in  part  on  these  provisions  in 


8  The  propriety  of  that  part  of  the  order  commanding  the  Marshals  to 
take  custody  of  the  state  prisoners  while  they  are  in  the  federal  courthouse 
is  not  specifically  before  us.  The  Marshals  have  conceded  that  they  are 
responsible  for  the  custody  of  state  prisoners  in  the  federal  courthouse  as 
witnesses  or  parties. 


38  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

imposing  the  responsibility  for  transport  upon  the  Marshals. 
Wiggins  v.  County  of  Alameda,  717  F.  2d  466  (CA9  1983), 
cert,  denied  sub  nom.  California  Dept.  of  Corrections  v. 
United  States,  465  U.  S.  1070  (1984);  Ford  v.  Carballo,  577 
F.  2d  404  (CA7  1978).  The  Court  of  Appeals  for  the  Third 
Circuit  is  the  only  Circuit  to  deny  a  district  court  authority  to 
compel  the  Marshals  to  assist  in  transporting  state  prisoner- 
witnesses  to  the  federal  courthouse. 

Sections  569(b)  and  567  merely  enumerate  obligations  of 
the  Marshals.  The  Marshals  must  obey  the  mandates  of 
federal  courts  and  transport  prisoners  if  the  court  so  orders. 
The  courts'  authority  to  issue  such  writs,  however,  must  de- 
rive from  some  independent  statutory  source.  We  therefore 
must  look  to  the  habeas  corpus  statute  or  the  All  Writs  Act  to 
see  if  they  authorize  federal  courts  to  order  the  transporta- 
tion of  state  prisoners  to  the  federal  courthouse. 

Ill 

The  Court  of  Appeals  reasoned  that  the  Magistrate's  order 
amounted  to  a  writ  of  habeas  corpus  ad  testificandum*  prop- 
erly directed  only  to  the  custodian,  and  that  there  was  no 
basis  in  the  habeas  corpus  statute  for  the  District  Court's 
authority  to  direct  a  writ  ad  testificandum  to  a  noncustodian. 
We  agree. 

Since  1867,  the  writ  of  habeas  corpus  has  incorporated  the 
common-law  command  that  the  writ  "shall  be  directed  to  the 
person  in  whose  custody  the  party  is  detained."  Act  of  Feb. 
5,  1867,  ch.  28,  14  Stat.  386  (emphasis  added).  See  In  re 
Thaw,  166  F.  71,  74-75  (CAS  1908).  It  was  the  custodian 
who  then  was  to  "make  return  of  said  writ  and  bring  the 
party  before  the  judge  who  granted  the  writ."  Ibid.  Con- 


4  The  habeas  corpus  statute  provides  in  pertinent  part  that  the  writ 
"shall  be  directed  to  the  person  having  custody  of  the  person  detained," 
and  that  'the  person  to  whom  the  writ  is  directed  shall  be  required  to 
produce  at  the  hearing  the  body  of  the  person  detained."  28  U.  S.  C. 
§2243. 


PA.  BUREAU  OF  CORRECTION  v.  U.  S.  MARSHALS  39 

34  Opinion  of  the  Court 

gress  preserved  this  unambiguous  directive  throughout  sub- 
sequent revisions,  and  the  current  habeas  corpus  statute 
states  that  the  writ  "shall  be  directed  to  the  person  having 
custody  of  the  person  detained."  28  U.  S.  C.  §2243.  Sec- 
tion 2243  also  specifically  provides  that  "the  person  to  whom 
the  writ  is  directed  shall  be  required  to  produce  at  the  hear- 
ing the  body  of  the  person  detained." 

The  language  of  the  statute  thus  expressly  commands  the 
custodian  to  bring  his  prisoner  to  the  court,  but  extends  this 
duty  to  no  other.  See  also  Fed.  Rule  Civ.  Proc.  81(a)(2) 
("The  writ  of  habeas  corpus  .  .  .  shall  be  directed  to  the  per- 
son having  custody  of  the  person  detained").  We  find  no  evi- 
dence in  the  language  of  §§2241  and  2243,  in  their  legislative 
history,  or  in  the  common-law  writ  ad  testificandum  to  sug- 
gest that  courts  are  also  empowered  to  cause  third  parties 
who  are  neither  custodians  nor  parties  to  the  litigation  to 
bear  the  cost  of  producing  the  prisoner  in  a  federal  court. 
We  therefore  conclude  that  there  is  no  basis  in  the  habeas 
corpus  statute  for  a  federal  court  to  order  the  Marshals  to 
transport  state  prisoners  to  the  federal  courthouse.5 


6Carbo  v.  United  States,  364  U.  S.  611  (1961),  does  not  support  an  ex- 
pansive reading  of  the  power  conferred  upon  federal  district  courts  by  the 
writ  of  habeas  corpus  ad  testificandum.  In  Car&o,  the  Court  found  that 
although  §2241  contained  an  express  territorial  limitation  of  "[w]rits  of 
habeas  corpus,"  28  U.  S.  C.  §  2241  (a),  the  limitation  applied  to  habeas  cor- 
pus ad  subjicieridum,  but  not  to  habeas  corpus  ad  proseqitendum.  The 
Commonwealth  similarly  argues  that  the  provisions  in  §  2243  that  direct 
the  custodian  to  produce  the  prisoners  in  court  do  not  apply  to  the  writ  ad 
testificandum  but  instead  are  limited  to  the  Great  Writ,  habeas  corpus 
ad  subjiciendum. 

Carbo's  expansive  reading  of  the  statute  was  consistent  with  common- 
law  procedure  and  requirements  applied  to  the  writ  ad  pronequendmn  and 
with  the  legislative  history  of  §  224 l(a)  364  U  S  ,  at  615-618  But  this 
case  involves  the  writ  ad  teNtificatidHw,  which  has  been  confined  in  its 
application  to  the  actual  custodian  of  the  prisoners  from  before  its  initial 
codification  in  1789  to  the  present  We  therefore  do  not  believe  that 
Carbo  justifies  a  more  expansive  view  of  the  writ  of  habeas  corpus  ad 
testificandum  today. 


40  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

IV 

Finally,  the  Commonwealth  argues  that  the  All  Writs  Act, 
28  U.  S.  C.  §  1651, 6  confers  authority  upon  a  district  court  to 
order  the  Marshals  to  transport  state  prisoners  to  and  from 
the  federal  courthouse  in  connection  with  federal  litigation. 
It  argues  that  the  "deluge  of ...  civil  rights  actions"  calls  for 
"creative"  use  of  federal  judicial  power  to  alleviate  the  drain 
on  the  States'  fiscs  from  the  transport  of  inmates  to  and  from 
federal  courthouses. 

It  is  true  that  this  Court  consistently  has  construed  the  All 
Writs  Act  to  authorize  a  federal  court  "to  issue  such  com- 
mands ...  as  may  be  necessary  or  appropriate  to  effectuate 
and  prevent  the  frustration  of  orders  it  has  previously  issued 
in  its  exercise  of  jurisdiction  otherwise  obtained."  United 
States  v.  New  York  Telephone  Co.,  434  U.  S.  159,  172  (1977). 
This  Court  also  has  held  that  the  supplemental  powers  of  the 
Act  are  not  limited  to  situations  where  it  is  "necessary"  to 
issue  the  writ  or  order  "in  the  sense  that  the  court  could  not 
otherwise  physically  discharge  its  appellate  duties."  Adams 
v.  United  States  ex  rel.  McCann,  317  U.  S.  269,  273  (1942). 
An  examination  of  the  language  of  the  All  Writs  Act,  its  leg- 
islative history,  and  our  decisions  construing  it  convinces  us, 
however,  that  the  Act  does  not  authorize  a  district  court  to 
order  the  Marshals  to  transport  state  prisoners  from  state 
prisons  to  the  federal  courthouse  in  the  ordinary  course  of 
litigation  in  federal  courts. 

The  All  Writs  Act  originally  was  codified  in  §  14  of  the 
Judiciary  Act  of  1789,  1  Stat.  81-82,  which  provided  that 

"all  the  .  .  .  courts  of  the  United  States,  shall  have 
power  to  issue  writs  of  scire  facias,  habeas  corpus,  and 
all  other  writs  not  specifically  provided  for  by  statute, 


6  The  All  Writs  Act  provides  in  pertinent  part: 

"The  Supreme  Court  and  all  courts  established  by  Act  of  Congress  may 
issue  all  writs  necessary  or  appropriate  in  aid  of  their  respective  jurisdic- 
tions and  agreeable  to  the  usages  and  principles  of  law. " 


PA.  BUREAU  OF  CORRECTION  u  U.  S.  MARSHALS  41 

34  Opinion  of  the  Court 

which  may  be  necessary  for  the  exercise  of  their  respec- 
tive jurisdictions,  and  agreeable  to  the  principles  and 
usages  of  law." 

Our  early  view  of  the  scope  of  the  all  writs  provision  con- 
fined it  to  filling  the  interstices  of  federal  judicial  power  when 
those  gaps  threatened  to  thwart  the  otherwise  proper  exer- 
cise of  federal  courts'  jurisdiction.  McClung  v.  Sillirnan,  6 
Wheat.  598  (1821);  Mclntire  v.  Wood,  7  Cranch  504  (1813). 
This  limitation  is  especially  significant  in  construing  federal 
courts'  power  to  issue  writs  of  habeas  corpus  ad  testifican- 
dum:  The  Judiciary  Act  of  1789  codified  the  ad  testificandum 
writ  in  the  same  section  as  the  all  writs  provision. 

The  original  phrase  "not  specifically  provided  for  by  stat- 
ute" remained  in  the  all  writs  section  until  1948.  Although 
the  legislative  history  is  scant,  it  appears  that  Congress  then 
merely  consolidated  various  provisions  into  §  1651  and  made 
"necessary  changes  in  phraseology"  without  substantive 
amendment.  See  H.  R.  Rep.  No.  308,  80th  Cong.,  1st 
Sess.,  A144  (1947);  see  also  id.,  at  5.  The  legislative  history 
did,  however,  state  that  the  new  section  was  "expressive  of 
the  construction  recently  placed  upon  [the  all  writs  provision] 
by  the  Supreme  Court  in  U.  S.  Alkali  Export  Assn.  [v. 
United  States,  325  U.  S.  196  (1945)]."  Id.,  at  A145.  In 
United  States  Alkali,  the  Court  rejected  use  of  the  all  writs 
provision  to  enable  the  Court  to  review  a  lower  court's  deter- 
mination where  jurisdiction  did  not  lie  under  an  express  stat- 
utory provision.  Chief  Justice  Stone  wrote: 

"The  writs  may  not  be  used  as  a  substitute  for  an  author- 
ized appeal;  and  where,  as  here,  the  statutory  scheme 
permits  appellate  review  of  interlocutory  orders  only  on 
appeal  from  the  final  judgment,  review  by  certiorari  or 
other  extraordinary  writ  is  not  permissible  in  the  face  of 
the  plain  indication  of  the  legislative  purpose  to  avoid 
piecemeal  reviews."  325  U.  S.,  at  203. 


42  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  TJ.  S. 

Although  Congress  dropped  the  phrase  "not  specifically 
provided  for  by  statute"  in  its  1948  consolidation,  we  con- 
clude that  it  apparently  intended  to  leave  the  all  writs  provi- 
sion substantially  unchanged.  That  intention  and  the  favor- 
able reference  to  United  States  Alkali  convince  us  that  the 
1948  changes  in  phraseology  do  not  mark  a  congressional  ex- 
pansion of  the  powers  of  federal  courts  to  authorize  issuance 
of  any  "appropriate"  writ. 

Nevertheless,  the  Commonwealth,  relying  on  United 
States  v.  New  York  Telephone  Co.,  supra,  at  171,  as  well  as 
Harris  v.  Nelson,  394  U.  S.  286,  299  (1969),  and  Price  v. 
Johnston,  334  U.  S.  266,  282  (1948),  insists  that  under  the  All 
Writs  Act  the  District  Court  can  order  the  Marshals  to  trans- 
port state  prisoners  upon  a  mere  statement  that  such  an 
order  would  be  "necessary  or  appropriate."  As  summarized 
in  the  margin  below,  these  cases  are  clearly  distinguishable 
and  lend  little  support  to  the  Commonwealth's  argument.7 


7 In  United  States  v.  New  York  Telephone  Co.,  434  U.  S.  159  (1977),  the 
Court  held  that  a  District  Court  could  under  the  All  Writs  Act  compel  a 
third  party,  the  New  York  Telephone  Company,  to  assist  the  Federal  Bu- 
reau of  Investigation  in  installing  devices  under  a  warrant  that  would  reg- 
ister the  numbers  dialed  on  certain  telephones.  In  that  case  the  All  Writs 
Act  filled  a  gap  in  federal  statutes  by  granting  the  District  Court  jurisdic- 
tion over  the  only  party  capable  of  installing  the  devices.  In  the  instant 
case,  by  contrast,  the  habeas  corpus  statute  already  expressly  provides  for 
the  issuance  of  a  writ  "to  the  person  having  custody  of  the  person 
detained." 

In  Price  v.  Johnston,  334  U.  S.  266  (1948),  the  Court  held  that  a  Court  of 
Appeals  could  order  a  prisoner  to  be  brought  before  it  to  argue  his  own 
appeal,  finding  that  the  All  Writs  Act  was  a  mechanism  to  achieve  the  "ra- 
tional ends  of  law."  Id.,  at  282.  In  Price,  however,  there  was  no  alterna- 
tive way  to  bring  the  prisoner  before  the  court.  In  the  present  case,  the 
traditional  writ  ad  testificandum  is  sufficient.  Similarly,  Harris  v.  Nel- 
son, 394  U.  S.  286  (1969),  held  that  the  District  Court  in  that  case  had  no 
alternative  means  of  providing  an  effective  habeas  corpus  proceeding  ex- 
cept by  use  of  an  extraordinary  writ.  New  York  Telephone,  Price,  and 
Harris  afforded  resort  to  the  All  Writs  Act  to  fill  statutory  interstices. 
We  do  not  find  their  reasoning  controlling  here,  where  a  writ  ad  testifican- 


PA.  BUREAU  OF  CORRECTION  u  U.  S.  MARSHALS  43 

34  STEVENS,  J.,  dissenting 

The  All  Writs  Act  is  a  residual  source  of  authority  to  issue 
writs  that  are  not  otherwise  covered  by  statute.  Where  a 
statute  specifically  addresses  the  particular  issue  at  hand,  it 
is  that  authority,  and  not  the  All  Writs  Act,  that  is  control- 
ling. Although  that  Act  empowers  federal  courts  to  fashion 
extraordinary  remedies  when  the  need  arises,  it  does  not  au- 
thorize them  to  issue  ad  hoc  writs  whenever  compliance  with 
statutory  procedures  appears  inconvenient  or  less  appropri- 
ate. We  need  not  categorically  rule  out  reliance  on  the  All 
Writs  Act  and  the  use  of  Marshals  in  procuring  or  safeguard- 
ing state  prisoner-witnesses  in  the  course  of  federal  litiga- 
tion. There  may  be  exceptional  circumstances  in  which  a 
district  court  can  show  clearly  the  inadequacy  of  traditional 
habeas  corpus  writs,  such  as  where  there  are  serious  security 
risks.  In  such  circumstances,  a  district  court  may  find  it 
"necessary  or  appropriate"  for  Marshals  to  transport  state 
prisoners.  We  therefore  leave  open  the  question  of  the 
availability  of  the  All  Writs  Act  to  authorize  such  an  order 
where  exceptional  circumstances  require  it. 

V 

We  conclude,  at  least  in  the  absence  of  an  express  finding 
of  exceptional  circumstances,  that  neither  a  magistrate  nor  a 
district  court  has  authority  to  order  the  Marshals  to  trans- 
port state  prisoners  to  the  federal  courthouse  to  testify  in  an 
action  brought  by  a  state  prisoner  under  42  U.  S.  C.  §  1983 
against  county  officials.  Accordingly,  we  affirm  the  Court  of 
Appeals  for  the  Third  Circuit. 

It  is  so  ordered. 

JUSTICE  STEVENS,  dissenting. 

This  is  an  exceptional  case.  It  involves  a  dispute  between 
the  Marshals  Service  and  a  Federal  District  Court.  Ordi- 
narily, the  marshals  and  the  federal  courts  which  they  serve 


dum  directed  to  the  custodian  indisputably  provides  a  district  court  with  a 
means  of  producing  a  prisoner-witness. 


44  OCTOBER  TERM,  1985 

STEVENS,  J.,  dissenting  474  U.  S. 

have  a  close  and  harmonious  relationship.  To  be  sure,  the 
special  responsibilities  of  the  marshal— an  office  that  serves 
both  the  Executive  and  Judicial  Branches — can  give  rise  to 
administrative  problems.1  Customarily  such  problems  are 
resolved  on  a  voluntary,  cooperative  basis,  either  in  the  indi- 
vidual court  or  circuit,  or  in  high-level  discussions  between 
the  Executive  and  Judicial  Branches.2  Open  disputes  be- 
tween the  marshals  and  the  courts  are  rare,  and  appropri- 
ately so. 

The  question  whether  federal  marshals  should  be  required 
to  transport  state  prisoners  to  testify  in  federal  litigation  is, 
however,  a  recurring  problem  that  has  not  been  resolved  am- 
icably, either  between  the  federal  courts  and  the  marshals3 
or  between  the  marshals  and  the  States.4  The  majority 
notes  that,  in  "exceptional  circumstances,"  ante,  at  43,  the 
district  court  may  order  marshals  to  transport  state  prison- 
ers. I  entirely  agree.  The  majority's  holding,  however,  is 
that,  absent  such  circumstances,  the  district  court  may  not 


*See  Report  by  the  Comptroller  General,  U.  S.  Marshals'  Dilemma: 
Serving  Two  Branches  of  Government  (1982). 

2  See,  e.  g.,  U.  S.  Marshals  Service,  Oversight  Hearing  before  the 
Subcommittee  on  Courts,  Civil  Liberties,  and  the  Administration  of  Justice 
of  the  House  Committee  on  the  Judiciary,  99th  Cong.,  1st  Sess.,  3  (1985) 
(citing  agreement  between  the  Attorney  General  and  THE  CHIEF  JUSTICE 
regarding  court  security);  id.,  at  26  (citing  agreement  between  the  Attor- 
ney General  and  THE  CHIEF  JUSTICE  regarding  contract  guard  program); 
Hearings  on  H.  R.  7039  before  the  Subcommittee  on  Courts,  Civil  Liber- 
ties, and  the  Administration  of  Justice  of  the  House  Committee  on  the 
Judiciary,  97th  Cong.,  2d  Sess.,  175  (1982)  (citing  agreement  between  the 
Attorney  General  and  THE  CHIEF  JUSTICE  regarding  court  security  and 
the  allocation  of  marshals). 

3  See  Ford  v.  Allen,  728  F.  2d  1369  (CA11  1984)  (per  cumam);  Wiggins 
v.  County  of  Alameda,  717  F.  2d  466  (CA9  1983),  cert,  denied,  465  U.  S. 
1070  (1984);  Ford  v.    Carballo,   577  F.   2d  404  (CA7   1978);  Ballard  v. 
Spradley,  557  F.  2d  476  (CAS  1977). 

4  See  Wiggins  v.  County  of  Alameda,  717  F.  2d,  at  469  ("We  decry  the 
inability  of  state  and  federal  officials  to  resolve  such  matters  fairly  and 
equitably  .  .  ."). 


PA.  BUREAU  OF  CORRECTION  v.  U.  S.  MARSHALS  45 

34  STEVENS,  J.,  dissenting 

order  marshals  to  do  so  because  no  statute  expressly  author- 
izes that  action.  In  my  view,  this  conclusion  ignores  the  im- 
portance of  history  and  tradition  in  defining  the  relationship 
between  the  Marshals  Service  and  the  Federal  Judiciary. 

History  and  tradition  suggest  that  the  court's  authority 
over  the  marshal  is  not  so  narrowly  circumscribed  as  the 
Court  suggests.  In  the  Judiciary  Act  of  1789,  Congress 
placed  the  marshal  under  the  direction  of  the  court.  Be- 
cause the  office  of  the  marshal  was  patterned  after  the  office 
of  the  common-law  sheriff,5  there  was  no  need  for  Congress 
to  define  the  judge's  authority  to  issue  orders  to  the  marshal 
with  any  particularity.  Instead,  §  27  of  the  Judiciary  Act  of 
1789  provided  that  a  marshal  should  be  appointed  in  each 


5  See  U.  S.  Dept.  of  Justice,  United  States  Marshals  Service  — 
Then  .  .  .  and  Now  3  (1978)  ("the  Marshal  carried  on  the  tradition  of  the 
English  common  law  sheriff,  possessing  complete  authority  within  his  baili- 
wick"). Indeed,  one  of  the  objections  expressed  to  the  Judiciary  Act  of 
1789  was  that  it  would  lead  to  conflicts  between  the  federal  marshals  and 
the  local  sheriffs.  1  Annals  of  Cong.  826  (1789)  (statement  of  Rep.  Stone) 
("in  different  tribunals,  not  connected,  mischiefs  may  happen.  Will  a  sher- 
iff be  justifiable  in  delivering  up  his  prisoner  to  the  marshal,  or  will  it  be  a 
proper  return  by  the  marshal  that  the  prisoner  is  kept  by  the  State  sher- 
iff"). In  1792,  moreover,  Congress  expressly  provided  that  "the  marshals 
of  the  several  districts  and  their  deputies,  shall  have  the  same  powers  in 
executing  the  laws  of  the  United  States,  as  sheriffs  and  their  deputies  in 
the  several  states  have  by  law,  in  executing  the  laws  of  their  respective 
states,"  1  Stat.  265 — a  provision  that,  in  substance,  exists  today,  28 
U.  S.  C.  §  570.  On  the  power  of  the  sheriff  at  English  common  law,  see 
G.  Atkinson,  Sheriff-Law  5  (1861)  ("The  sheriff  is  the  immediate  officer  to 
all  the  Courts  at  Westminster  to  execute  writs.  .  .  .  [Wjhether  a  writ 
comes  to  him,  by  authority,  or  without  authority,  or  is  awarded  against 
whom  it  does  not  lie,  he  cannot  doubt,  or  dispute  its  validity"). 

The  title  for  the  marshals  may  have  been  derived  from  the  example  of 
the  marshals  to  the  British  and  colonial  vice-admiralty  courts.  See  L. 
Ball,  The  United  States  Marshals  of  New  Mexico  and  Arizona  Territories  3 
(1978).  See  also  C.  Ubbelohde,  The  Vice-Admiralty  Courts  and  the  Amer- 
ican Revolution  10  (1960)  (In  the  colonial  vice-admiralty  courts,  "[t]he  mar- 
shals' duties  were  similar  to  those  of  a  sheriff:  serving  processes,  taking 
custody  of  goods  or  people,  and  executing  the  decrees  of  the  court"). 


46  OCTOBER  TERM,  1985 

STEVENS,  J.,  dissenting  474  U.  S. 

judicial  district.6  The  primary  duty  of  the  marshal,  as  ex- 
pressed in  that  Act,  was  "to  attend  the  district  and  circuit 
courts  when  sitting  therein,  and  also  the  Supreme  Court  in 
the  district  in  which  that  court  shall  sit."  In  carrying  out  his 
duty  to  execute  "all  lawful  precepts  directed  to  him,"  each 
marshal  was  given  the  power  to  appoint  "one  or  more  depu- 
ties," but  such  deputies  were  removable  at  will  by  the  appro- 
priate federal  judge.  Read  against  the  background  of  the 
relationship  between  the  judge  and  the  sheriff  that  had 
existed  at  common  law,  it  is  evident  that  the  statute  simply 
assumed  that  the  judge  had  ample  power  to  call  upon  the 
marshal  for  appropriate  assistance  in  carrying  out  the  duties 
of  judicial  office. 

Although  the  marshal  was  subsequently  given  a  variety  of 
other  duties,  including  some  subject  to  direction  from  the 


6  "SEC.  27.  And  be  it  further  enacted,  That  a  marshal  shall  be  appointed 
in  and  for  each  district  for  the  term  of  four  years,  but  shall  be  removable 
from  office  at  pleasure,  whose  duty  it  shall  be  to  attend  the  district  and 
circuit  courts  when  sitting  therein,  and  also  the  Supreme  Court  in  the  dis- 
trict in  which  that  court  shall  sit.  And  to  execute  throughout  the  district, 
all  lawful  precepts  directed  to  him,  and  issued  under  the  authority  of  the 
United  States,  and  he  shall  have  power  to  command  all  necessary  assist- 
ance in  the  execution  of  his  duty,  and  to  appoint  as  there  shall  be  occasion, 
one  or  more  deputies,  who  shall  be  removable  from  office  by  the  judge  of 
the  district  court,  or  the  circuit  court  sitting  within  the  district,  at  the 
pleasure  of  either;  and  before  he  enters  on  the  duties  of  his  office,  he  shall 
become  bound  for  the  faithful  performance  of  the  same,  by  himself  and  by 
his  deputies  before  the  judge  of  the  district  court  to  the  United  States, 
jointly  and  severally,  with  two  good  and  sufficient  sureties,  inhabitants  and 
freeholders  of  such  district,  to  be  approved  by  the  district  judge,  in  the 
sum  of  twenty  thousand  dollars,  and  shall  take  before  said  judge,  as  shall 
also  his  deputies,  before  they  enter  on  the  duties  of  their  appointment,  the 
following  oath  of  office:  'I,  A.  B. ,  do  solemnly  swear  or  affirm,  that  I  will 
faithfully  execute  all  lawful  precepts  directed  to  the  marshal  of  the  district 
of  under  the  authority  of  the  United  States,  and  true  returns 

make,  and  in  all  things  well  and  truly,  and  without  malice  or  partiality,  per- 
form the  duties  of  the  office  of  marshal  (or  marshal's  deputy,  as  the  case 
may  be)  of  the  district  of  ,  during  my  continuance  in  said  office, 

and  take  only  my  lawful  fees.     So  help  me  God.*"     1  Stat.  87. 


PA.  BUREAU  OF  CORRECTION  v.  U.  S.  MARSHALS  47 

34  STEVENS,  J.,  dissenting 

Executive  Branch,7  it  was  not  until  1861  that  Congress  gave 
the  Attorney  General  any  authority  over  United  States 
marshals.8  Furthermore,  it  was  not  until  1969  that  the 
Attorney  General  formalized  his  control  over  the  marshals 
through  the  establishment  of  the  Office  of  the  Director  of 
the  Marshals  Service.9 

Under  the  current  statutory  framework,  the  United  States 
marshals  owe  obligations  both  to  the  Executive  Branch  and 
to  the  Judiciary.  Thus,  although  as  the  majority  points  out, 
the  Marshals  Service  is  under  the  control  of  the  Attorney 
General,  ante,  at  36,  n.  1,  marshals  also  remain  subject  to  the 
instructions  of  the  court.10  Indeed,  Congress  has  consid- 
ered, but  not  passed,  legislation  to  lodge  control  of  the  mar- 
shals exclusively  in  the  Executive  Branch.11  Thus,  Congress 
has  not  yet  divested  the  Judiciary  of  the  control  of  marshals 
that  it  has  had  since  1789,  and  that  it  has  shared  with  the 
Attorney  General  since  1861. 

Throughout  our  history,  the  marshals  have  played  an  im- 
portant role  in  the  administration  of  justice.  Although  their 
most  dramatic  exploits  may  be  called  to  mind  by  references 
to  names  like  Bat  Masterson,  Wyatt  Earp,  and  David 
Neagle,  or  to  events  like  the  enforcement  of  civil  rights  legis- 
lation in  the  1960's,  the  primary  assistance  to  the  Federal 
Judiciary  provided  by  the  marshals  has  been  in  the  area  of 


7  See  U.  S.  Dept.  of  Justice,  The  Office  of  the  United  States  Marshal 
2-3  (1981). 

8  See  Report  by  the  Comptroller  General,  supra  n.  1,  at  8  ("On  August 
2,  1861,  an  act  of  Congress  (ch.  37,  12  Stat.  285)  placed  U.  S.  attorneys  and 
marshals  under  the  general  superintendence  and  direction  of  the  Attorney 
General.     The  1861  legislation  neither  explicitly  repealed  nor  made  refer- 
ence to  any  prior  statutes  affecting  marshals"). 

9  Id.,  at  10. 

10  See  28  U.  S.  C.  §  569(a)  ("The  United  States  marshal  of  each  district  is 
the  marshal  of  the  district  court  and  of  the  court  of  appeals  when  sitting  in 
his  district,  .  .  .  and  may,  in  the  discretion  of  the  respective  courts,  be 
required  to  attend  any  session  of  court"). 

11  See  Hearings  on  H.  R.  7039,  supra  n.  2,  at  141. 


48  OCTOBER  TERM,  1985 

STEVENS,  J.,  dissenting  474  U.  S. 

protection  of  the  trial  process,  including  the  courtroom  itself, 
and  the  service  of  writs  issued  by  the  judges.  The  duty  of 
the  Marshals  Service  "to  service  the  federal  forum"12  does, 
however,  encompass  more  than  these  two  specific  activities. 

Many  aspects  of  the  court's  authority  over  the  marshal  are 
not  set  forth  in  detail  in  any  Act  of  Congress.  Thus,  it  is  not 
the  Congress  that  decided  that  formal  proceedings  in  our 
courtroom  shall  be  preceded  by  the  Marshal's  cry  of  "Oyez, 
Oyez."  Nor  is  it  Congress,  or  the  United  States  Marshals 
Service,  that  has  decided  to  use  different  language  to  call  the 
court  to  order  in  other  federal  courthouses.  Decisions  of 
that  kind  concerning  the  administration  of  justice  in  federal 
courts  are  made  by  federal  judges. 

When  a  federal  judge  orders  the  marshal  to  open  court  at  a 
particular  time,  or  in  a  particular  way,  to  provide  appropriate 
security  for  a  trial  participant,  or  to  escort  a  prisoner  from 
the  lockup  in  the  federal  building  to  the  courtroom,  the  court 
is  exercising  judicial  power  in  a  manner  that  is  certainly 
"agreeable  to  the  usages  and  principles  of  law"  as  that  phrase 
is  used  in  the  All  Writs  Act.13  In  my  judgment,  however, 
such  an  order  is  not  a  "writ."  The  court's  authority  to  issue 
such  directives  to  the  marshal  is  therefore  not  derived  from 
the  All  Writs  Act,  but  rather  is  simply  one  of  the  powers  of 
the  federal  judicial  office  that  has  long  been  an  aspect  of  the 
relationship  between  the  court  and  its  officers. 

These  daily  instances  of  judicial  authority  over  the  marshal 
reflect  the  conventional  relationship  between  the  court  and 
the  marshal.  The  closeness  of  the  relationship  is  derived, 
not  from  an  assertion  of  judicial  power  over  an  unwilling  mar- 
shal, but  from  the  cooperative  nature  of  the  shared  mission  to 
administer  justice.  This  case  represents  one  of  those  un- 


12  "The  raison  d'etre  of  the  Marshal  Service  is  to  service  the  federal 
forum  in  civil  as  well  as  criminal  litigation."     Ballard  v.  Spradley,  557  F. 
2d,  at  481. 

13  The  statute's  original  and  present  forms  are  both  quoted  by  the  Court, 
ante,  at  40-41,  and  n.  6. 


PA  BUREAU  OF  CORRECTION  v.  U.  S.  MARSHALS  49 

34  STEVENS,  J.,  dissenting 

usual  instances  in  which  the  ordinary  mechanisms  for  ad- 
dressing disagreements  have  apparently  failed.  The  major- 
ity holds  that  the  answer  must  he  found  in  an  explicit  stat- 
utory delineation  of  each  exercise  of  judicial  authority.  In 
my  view,  the  nature  of  the  shared  mission  of  the  federal 
courts  and  the  federal  marshals  should  provide  the  standard 
for  resolving  the  dispute.  Thus,  the  controlling  question  is 
whether  the  district  court's  order  is  reasonably  related  to  the 
administration  of  justice  and  is  a  sound  exercise  of  judicial 
discretion.14 

As  noted,  the  Court  recognizes  that  there  may  be  "excep- 
tional circumstances"  in  which  it  would  be  appropriate  for  a 
trial  court  to  order  the  marshal  to  transport  a  state  prisoner 
to  a  federal  courthouse.  See  ante,  at  43.  In  my  judgment, 
even  with  respect  to  an  ordinary  witness,  special  circum- 
stances might  make  it  appropriate  to  order  the  marshal  to 
transport  the  witness  to  court,  even  though  there  may  not  be 
any  common-law  writ  that  would  be  available  in  a  comparable 
situation.  The  question  whether  such  an  order  to  a  marshal 
constitutes  an  appropriate  exercise  of  the  judge's  inherent 
power  to  control  the  course  of  proceedings  in  a  particular 
trial  should  not,  in  my  opinion,  be  answered  by  reference  to 
the  All  Writs  Act,  but  rather  by  reference  to  the  traditional 
relationship  between  the  court  and  the  marshal  and  to  the 
particular  facts  that  may  support  the  order  in  a  particular 
case. 

In  this  case,  four  factors  suggest  that  ordering  the  federal 
marshal  to  transport  the  state  prisoners  was  a  sound  exercise 
of  judicial  discretion.  First,  federal  marshals  have  consider- 


14  Four  of  the  five  United  States  Courts  of  Appeals  that  have  considered 
federal-court  orders  to  transport  state  prisoners  for  their  testimony  in  fed- 
eral htig-ation  have  viewed  the  issue  as  a  question  of  the  District  Court's 
discretion,  and  located  the  authority  for  that  discretion  in  a  specific  statu- 
tory provision.  See  cases  cited  in  n.  3,  supra. 


50  OCTOBER  TERM,  1985 

STEVENS,  J.,  dissenting  474  U.  S. 

able  expertise  in  transporting  prisoners  to  federal  courts;15 
moreover,  the  marshals  acknowledge  that  they  have  ample 
authority  to  transport  state,  as  well  as  federal,  prisoners 
when  appropriate.16  Second,  in  this  instance,  the  federal 
marshal  will  be  responsible  for  the  prisoners  when  they  are 
in  the  federal  courthouse.17  Third,  federal  marshals  fre- 
quently house  federal  prisoners  at  state  and  local  jails,  and, 
indeed,  have  developed  special  programs  to  serve  that  end.18 
Fourth,  in  this  case,  the  District  Court,  through  the  Magis- 
trate, specifically  found  that  requiring  the  State  to  bear  the 
entire  responsibility  of  transporting  the  state  prisoners  for 
this  federal  litigation  would  impose  an  unfair  financial  hard- 
ship upon  the  Commonwealth  of  Pennsylvania. 19  This  find- 
ing derives  support,  not  only  from  the  particular  facts  dis- 
closed by  this  record,20  but  also  from  the  strong  federal  policy 


15  The  marshals  transported  more  than  130,000  prisoners  in  fiscal  year 
1984.     Oversight  Hearing,  supra  n.-  2,  at  10. 

16  See  Tr.  of  Oral  Arg.  38-40. 

17  See  ante,  at  37,  n.  3. 

18  Oversight  Hearing,  supra  n.  2,  at  16. 

19  See  Magistrate's  opinion,  App.  to  Pet.  for  Cert.  58a-59a.     The  Magis- 
trate ordered  the  Marshals  Service  to  transport  the  prisoners  from  the 
Philadelphia  Detention  Center  to  the  federal  courthouse  in  Philadelphia. 
The  State,  in  contrast,  remained  responsible  for  transporting  the  prisoners 
from  their  prisons  in  other  parts  of  the  State  to  the  Philadelphia  Detention 
Center.     Id.,  at  58a. 

20  The  Magistrate  found  that  the  financial  costs  imposed  by  his  require- 
ment that  the  State  transport  the  prisoners  to  the  Philadelphia  Detention 
Center  were  "significant,"  id.,  at  59a.     Determining  that  it  was  "equitable 
and  reasonable,"  ibid.,  to  refrain  from  imposing  additional  costs  on  the 
State,  he  emphasized  that  the  Marshal  already  made  frequent  trips  from 
the  Philadelphia  Detention  Center  to  the   federal  courthouse  because 
federal  prisoners  were  often  housed  at  the  Detention  Center  during  their 
federal  trials.     Id.,  at  60a.     According  to  the  Magistrate's  findings,  the 
Detention  Center  is  "relatively  close"  to  the  federal  courthouse.     Id.,  at 
59a-60a.     At  oral  argument,  the  Federal  Government  reported  that  "the 
Marshal  typically  brings  between  six  and  twelve  prisoners  from  the  Phila- 
delphia Detention  Center  to  the  Federal  Courthouse  on  an  average  day." 
Tr.  of  Oral  Arg.  28. 


PA.  BUREAU  OF  CORRECTION  u.  U.  S.  MARSHALS  51 

34  STEVENS,  J.,  dissenting 

favoring  cooperation  with  the  States  in  the  administration  of 
civil  rights  litigation  in  the  federal  courts.21  Thus,  I  believe 
that  it  was  an  appropriate  exercise  of  the  District  Court's 
discretion  to  issue  the  order  that  it  did  in  this  case. 

This  is  not  the  kind  of  confrontation  that  should  arise  be- 
tween the  marshals  and  the  federal  courts.  There  are  a  vari- 
ety of  mechanisms  that  should  be  used  before  the  marshals 
and  the  courts  engage  in  judicial  combat.  The  district 
judges  and  the  individual  marshals  should  be  able  to  resolve 
most  difficulties.  If  they  are  unable  to,  the  Circuit  Confer- 
ence should  be  asked  to  intervene.  If  the  problem  is  a  recur- 
ring, national  disagreement,  as  this  issue  seems  to  be,  the 
Marshals  Service  and  the  Judicial  Conference  can  seek  to  ad- 
dress it.  If  these  mechanisms  fail,  however,  and  if  the  dis- 
trict court  issues  an  order  to  the  marshal,  then  the  historic 
relationship  between  the  marshal  and  the  courts,  reflected  in 
the  current  statutory  framework,  convinces  me  that  the 
court's  order  should  be  upheld  if  it  is  reasonably  related  to 
the  administration  of  justice  and  is  an  appropriate  exercise  of 
the  district  court's  discretion. 

Because  I  believe  that  the  District  Court's  order  in  this 
case  was  fully  consistent  with  the  historic  relationship  be- 
tween the  federal  court  and  the  federal  marshal,  I  respect- 
fully dissent. 


21  Cf.  Remarks  of  Warren  E.  Burger,  Chief  Justice  of  the  United  States, 
at  the  Dedication  of  the  National  Center  for  State  Courts  8  (1978)  ("I  would 
hope  that  there  will  be  close  cooperation  and  coordination  between  our  two 
systems  —  close,  I  repeat,  but  voluntary.  Our  experience  with  the  State- 
Federal  Councils  has  shown  us  the  value  of  cooperation")- 


52  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 


HILL  v.  LOCKHART,  DIRECTOR,  ARKANSAS 
DEPARTMENT  OF  CORRECTION 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  EIGHTH  CIRCUIT 

No.  84-1103.     Argued  October  7,  1985— Decided  November  18,  1985 

Pursuant  to  a  plea-bargaining  agreement,  petitioner  pleaded  guilty  in  an 
Arkansas  court  to  charges  of  first-degree  murder  and  theft  of  property, 
and  the  court  accepted  the  plea,  sentencing  him,  in  accordance  with  the 
State's  recommendations,  to  concurrent  sentences  of  35  years  for  the 
murder  and  10  years  for  the  theft.  Petitioner  later  filed  a  federal 
habeas  corpus  petition  alleging,  inter  alia,  that  his  guilty  plea  was 
involuntary  by  reason  of  ineffective  assistance  of  counsel  because  his 
court-appointed  attorney  had  misinformed  him  that  if  he  pleaded  guilty 
he  would  become  eligible  for  parole  after  serving  one-third  of  his  prison 
sentence,  whereas  under  Arkansas  law  petitioner,  as  a  "second  of- 
fender," was  required  to  serve  one-half  of  his  sentence  before  becoming 
eligible  for  parole.  The  District  Court  denied  habeas  relief  without  a 
hearing,  and  the  Court  of  Appeals  affirmed. 

Held:  The  District  Court  did  not  err  in  declining  to  hold  a  hearing  on 
petitioner's  claim.  Pp.  56-60. 

(a)  Where  a  defendant  enters  a  guilty  plea  upon  counsel's  advice,  the 
voluntariness  of  the  plea  depends  on  whether  the  advice  was  within  the 
range  of  competence  demanded  of  attorneys  in  criminal  cases.     The  two- 
part  standard  adopted  in  Strickland  v.  Washington,  466  U.  S.  668,  for 
evaluating  claims  of  ineffective  assistance  of  counsel — requiring  that  the 
defendant  show  that  counsel's  representation  fell  below  an  objective 
standard  of  reasonableness,  and  that  there  is  a  reasonable  probability 
that,  but  for  counsel's  unprofessional  errors,  the  result  of  the  proceeding 
would  have  been  different— applies  to  guilty  plea  challenges  based  on  in- 
effective assistance  of  counsel.     In  order  to  satisfy  the  second,  or  "preju- 
dice," requirement,  the  defendant  must  show  that  there  is  a  reasonable 
probability  that,  but  for  counsel's  errors,  he  would  not  have  pleaded 
guilty  and  would  have  insisted  on  going  to  trial.     Pp.  56-60. 

(b)  In  the  present  case  it  is  unnecessary  to  determine  whether  there 
may  be  circumstances  under  which  erroneous  advice  by  counsel  as  to 
parole  eligibility  may  be  deemed  constitutionally  ineffective  assistance 
of  counsel,  because  petitioner's  allegations  were  insufficient  to  satisfy 
the  "prejudice"  requirement.     He  did  not  allege  in  his  habeas  petition 
that,  had  counsel  correctly  informed  him  about  his  parole  eligibility  date, 


HILL  u  LOCKHART  53 

52  Opinion  of  the  Court 

he  would  have  pleaded  not  guilty  and  insisted  on  going  to  trial.     Nor  did 
he  allege  any  special  circumstances  that  might  support  the  conclusion 
that  he  placed  particular  emphasis  on  his  parole  eligibility  in  deciding 
whether  to  plead  guilty.     P.  60. 
764  F.  2d  1279,  affirmed. 

REHNQUIST,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER, 
C.  J.,  and  BRENNAN,  MARSHALL,  BLACKMUN,  POWELL,  and  O'CONNOR, 
JJ.,  joined.  WHITE,  J.,  filed  an  opinion  concurring  in  the  judgment,  in 
which  STEVENS,  J.,  joined,  post,  p.  60. 

Jack  T.  Lassiter,  by  appointment  of  the  Court,  471  U.  S. 
1064,  argued  the  cause  and  filed  a  brief  for  petitioner. 

John  Steven  Clark,  Attorney  General  of  Arkansas,  argued 
the  cause  for  respondent.  With  him  on  the  brief  was  Alice 
Ann  Burns,  Deputy  Attorney  General. 

JUSTICE  REHNQUIST  delivered  the  opinion  of  the  Court. 

Petitioner  William  Lloyd  Hill  pleaded  guilty  in  the  Arkan- 
sas trial  court  to  charges  of  first-degree  murder  and  theft  of 
property.  More  than  two  years  later  he  sought  federal  ha- 
beas relief  on  the  ground  that  his  court-appointed  attorney 
had  failed  to  advise  him  that,  as  a  second  offender,  he  was 
required  to  serve  one-half  of  his  sentence  before  becoming 
eligible  for  parole.  The  United  States  District  Court  for  the 
Eastern  District  of  Arkansas  denied  relief  without  a  hearing, 
and  the  en  bane  Court  of  Appeals  for  the  Eighth  Circuit 
affirmed  by  an  equally  divided  court.  We  granted  certiorari 
because  of  the  difference  between  the  result  reached  in  the 
present  case  and  that  reached  by  the  Court  of  Appeals  for  the 
Fourth  Circuit  in  Strader  v.  Garrison,  611  F.  2d  61  (1979). 
470  U.  S.  1049  (1985).  We  affirm  the  judgment  of  the  Court 
of  Appeals  for  the  Eighth  Circuit  because  we  conclude  that 
petitioner  failed  to  allege  the  kind  of  prejudice  from  the  alleg- 
edly incompetent  advice  of  counsel  that  would  have  entitled 
him  to  a  hearing. 

Under  Arkansas  law,  the  murder  charge  to  which  peti- 
tioner pleaded  guilty  carried  a  potential  sentence  of  5  to  50 


54  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

years  or  life  in  prison,  along  with  a  fine  of  up  to  $15,000. 
Ark.  Stat.  Ann.  §§41-1502(3),  41-901(l)(a),  41-1101(l)(a) 
(1977).  Petitioner's  court-appointed  attorney  negotiated  a 
plea  agreement  pursuant  to  which  the  State,  in  return  for  pe- 
titioner's plea  of  guilty  to  both  the  murder  and  theft  charges, 
agreed  to  recommend  that  the  trial  judge  impose  concurrent 
prison  sentences  of  35  years  for  the  murder  and  10  years  for 
the  theft.  Petitioner  signed  a  written  "plea  statement"  in- 
dicating that  he  understood  the  charges  against  him  and  the 
consequences  of  pleading  guilty,  that  his  plea  had  not  been 
induced  "by  any  force,  threat,  or  promise"  apart  from  the 
plea  agreement  itself,  that  he  realized  that  the  trial  judge 
was  not  bound  by  the  plea  agreement  and  retained  the  sole 
"power  of  sentence,"  and  that  he  had  discussed  the  plea 
agreement  with  his  attorney  and  was  satisfied  with  his  attor- 
ney's advice.  The  last  two  lines  of  the  "plea  statement,"  just 
above  petitioner's  signature,  read:  "I  am  aware  of  every- 
thing in  this  document.  I  fully  understand  what  my  rights 
are,  and  I  voluntarily  plead  guilty  because  I  am  guilty  as 
charged." 

Petitioner  appeared  before  the  trial  judge  at  the  plea  hear- 
ing, recounted  the  events  that  gave  rise  to  the  charges 
against  him,  affirmed  that  he  had  signed  and  understood  the 
written  "plea  statement,"  reiterated  that  no  "threats  or 
promises"  had  been  made  to  him  other  than  the  plea  agree- 
ment itself,  and  entered  a  plea  of  guilty  to  both  charges. 
The  trial  judge  accepted  the  guilty  plea  and  sentenced  peti- 
tioner in  accordance  with  the  State's  recommendations.  The 
trial  judge  also  granted  petitioner  credit  for  the  time  he  had 
already  served  in  prison,  and  told  petitioner  that  "[y]ou  will 
be  required  to  serve  at  least  one-third  of  your  time  before 
you  are  eligible  for  parole." 

More  than  two  years  later  petitioner  filed  a  federal  habeas 
corpus  petition  alleging,  inter  alia,  that  his  guilty  plea  was 
involuntary  by  reason  of  ineffective  assistance  of  counsel  be- 
cause his  attorney  had  misinformed  him  as  to  his  parole  eligi- 


HILL  u  LOCKHART  55 

52  Opinion  of  the  Court 

bility  date.  According  to  petitioner,  his  attorney  had  told 
him  that  if  he  pleaded  guilty  he  would  become  eligible  for  pa- 
role after  serving  one-third  of  his  prison  sentence.  In  fact, 
because  petitioner  previously  had  been  convicted  of  a  felony 
in  Florida,  he  was  classified  under  Arkansas  law  as  a  "second 
offender"  and  was  required  to  serve  one-half  of  his  sen- 
tence before  becoming  eligible  for  parole.  Ark.  Stat.  Ann. 
§43-2829B(3)  (1977).  Petitioner  asked  the  United  States 
District  Court  for  the  Eastern  District  of  Arkansas  to  reduce 
his  sentence  to  a  term  of  years  that  would  result  in  his  be- 
coming eligible  for  parole  in  conformance  with  his  original 
expectations. 

The  District  Court  denied  habeas  relief  without  a  hearing. 
The  court  noted  that  neither  Arkansas  nor  federal  law  re- 
quired that  petitioner  be  informed  of  his  parole  eligibility 
date  prior  to  pleading  guilty,  and  concluded  that,  even  if  peti- 
tioner was  misled  by  his  attorney's  advice,  parole  eligibility 
"is  not  such  a  consequence  of  [petitioner's]  guilty  plea  that 
such  misinformation  renders  his  plea  involuntary."  The 
court  also  held  that  "even  if  an  attorney's  advice  con- 
cerning such  eligibility  is  not  wholly  accurate,  such  advice 
does  not  render  that  attorney's  performance  constitutionally 
inadequate." 

A  divided  panel  of  the  Court  of  Appeals  for  the  Eighth  Cir- 
cuit affirmed,  holding  that  parole  eligibility  is  a  collateral 
rather  than  a  direct  consequence  of  a  guilty  plea,  of  which  a 
defendant  need  not  be  informed,  and  that  the  District  Court 
did  not  err  in  declining  to  hold  a  hearing  on  petitioner's 
claims.  731  F.  2d  568,  570-573  (1984).  One  judge  dis- 
sented, arguing  that  a  hearing  should  have  been  held  to  de- 
termine whether  the  attorney's  alleged  mistake  in  informing 
petitioner  about  "the  applicable  law"  constituted  ineffective 
assistance  of  counsel  and  warranted  vacating  the  guilty  plea. 
Id.,  at  573-574  (Heaney,  J.,  dissenting).  On  rehearing,  the 
en  bane  Court  of  Appeals  affirmed  the  judgment  of  the  Dis- 


56  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

trict  Court  by  an  equally  divided  court.      764  F.   2d  1279 
(1985). 

The  longstanding  test  for  determining  the  validity  of  a 
guilty  plea  is  "whether  the  plea  represents  a  voluntary  and 
intelligent  choice  among  the  alternative  courses  of  action 
open  to  the  defendant."  North  Carolina  v.  Alford,  40O 
IT,  S.  25,  31  (1970);  see  Boykin  v.  Alabama,  395  U.  S.  238, 
242  (1969);  Machibroda  v.  United  States,  368  TJ.  S.  487,  493 
(1962).  Here  petitioner  does  not  contend  that  his  plea  was 
"involuntary"  or  "unintelligent"  simply  because  the  State 
through  its  officials  failed  to  supply  him  with  information 
about  his  parole  eligibility  date.  We  have  never  held  that 
the  United  States  Constitution  requires  the  State  to  furnish  a, 
defendant  with  information  about  parole  eligibility  in  order 
for  the  defendant's  plea  of  guilty  to  be  voluntary,  and  indeed 
such  a  constitutional  requirement  would  be  inconsistent  with 
the  current  rules  of  procedure  governing  the  entry  of  guilty 
pleas  in  the  federal  courts.  See  Fed.  Rule  Crirn.  Proc.  ll(c); 
Advisory  Committee's  Notes  on  1974  Amendment  to  Fed. 
Rule  Grim.  Proc.  11,  18  U.  S.  C.  App.,  p.  22  (federal  courts 
generally  are  not  required  to  inform  defendant  about  parole 
eligibility  before  accepting  guilty  plea).  Instead,  petitioner 
relies  entirely  on  the  claim  that  his  plea  was  "involuntary"  as 
a  result  of  ineffective  assistance  of  counsel  because  his  attor- 
ney supplied  him  with  information  about  parole  eligibility 
that  was  erroneous.  Where,  as  here,  a  defendant  is  repre- 
sented by  counsel  during  the  plea  process  and  enters  his  plea, 
upon  the  advice  of  counsel,  the  voluntariness  of  the  plea 
depends  on  "whether  counsel's  advice  "was  within  the  range 
of  competence  demanded  of  attorneys  in  criminal  cases." 
M'cMann  v.  Richardson,  397  U.  S.  759,  771  (1970).  As  we 
explained  in  Tollettv.  Henderson,  411  U.  S.  258(1973),  a  de- 
fendant who  pleads  guilty  upon  the  advice  of  counsel  "majr 
only  attack  the  voluntary  and  intelligent  character  of  the 
guilty  plea  by  showing  that  the  advice  he  received  from  coun- 


HILL  v.  LOCKHART  57 

52  Opinion  of  the  Court 

sel  was  not  within  the  standards  set  forth  in  McMann. "  Id. , 
at  267. 

Our  concern  in  McMann  v.  Richardson  with  the  quality  of 
counsel's  performance  in  advising  a  defendant  whether  to 
plead  guilty  stemmed  from  the  more  general  principle  that  all 
"defendants  facing  felony  charges  are  entitled  to  the  effective 
assistance  of  competent  counsel."  397  U.  S.,  at  771,  and 
n.  14;  see  Reece  v.  Georgia,  350  U.  S.  85,  90  (1955);  Powell 
v.  Alabama,  287  U.  S.  45  (1932).  Two  Terms  ago,  in 
Strickland  v.  Washington,  466  U.  S.  668  (1984),  we  adopted 
a  two-part  standard  for  evaluating  claims  of  ineffective  as- 
sistance of  counsel.  There,  citing  McMann,  we  reiterated 
that  "[w]hen  a  convicted  defendant  complains  of  the  ineffec- 
tiveness of  counsel's  assistance,  the  defendant  must  show 
that  counsel's  representation  fell  below  an  objective  standard 
of  reasonableness."  466  U.  S.,  at  687-688.  We  also  held, 
however,  that  "[t]he  defendant  must  show  that  there  is  a  rea- 
sonable probability  that,  but  for  counsel's  unprofessional  er- 
rors, the  result  of  the  proceeding  would  have  been  different." 
Id.,  at  694.  This  additional  "prejudice"  requirement  was 
based  on  our  conclusion  that  "[a]n  error  by  counsel,  even  if 
professionally  unreasonable,  does  not  warrant  setting  aside 
the  judgment  of  a  criminal  proceeding  if  the  error  had  no 
effect  on  the  judgment."  Id.,  at  691. 

Although  our  decision  in  Strickland  v.  Washington  dealt 
with  a  claim  of  ineffective  assistance  of  counsel  in  a  cap- 
ital sentencing  proceeding,  and  was  premised  in  part  on  the 
similarity  between  such  a  proceeding  and  the  usual  criminal 
trial,  the  same  two-part  standard  seems  to  us  applicable  to 
ineffective-assistance  claims  arising  out  of  the  plea  process. 
Certainly  our  justifications  for  imposing  the  "prejudice"  re- 
quirement in  Strickland  v.  Washington  are  also  relevant  in 
the  context  of  guilty  pleas: 

"The  government  is  not  responsible  for,  and  hence  not 
able  to  prevent,  attorney  errors  that  will  result  in  rever- 
sal of  a  conviction  or  sentence.  Attorney  errors  come  in 


58  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

an  infinite  variety  and  are  as  likely  to  be  utterly  harm- 
less in  a  particular  case  as  they  are  to  be  prejudicial. 
They  cannot  be  classified  according  to  likelihood  of  caus- 
ing prejudice.  Nor  can  they  be  defined  with  sufficient 
precision  to  inform  defense  attorneys  correctly  just  what 
conduct  to  avoid.  Representation  is  an  art,  and  an  act 
or  omission  that  is  unprofessional  in  one  case  may  be 
sound  or  even  brilliant  in  another.  Even  if  a  defendant 
shows  that  particular  errors  of  counsel  were  unreason- 
able, therefore,  the  defendant  must  show  that  they  actu- 
ally had  an  adverse  effect  on  the  defense."  Id.,  at  693. 

In  addition,  we  believe  that  requiring  a  showing  of  "preju- 
dice" from  defendants  who  seek  to  challenge  the  validity  of 
their  guilty  pleas  on  the  ground  of  ineffective  assistance  of 
counsel  will  serve  the  fundamental  interest  in  the  finality 
of  guilty  pleas  we  identified  in  United  States  v.  Timmreck, 
441  U.  S.  780  (1979): 

"'Every  inroad  on  the  concept  of  finality  undermines 
confidence  in  the  integrity  of  our  procedures;  and,  by  in- 
creasing 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/"  Id., 
at  784  (quoting  United  States  v.  Smith,  440  F.  2d  521, 
528-529  (CA7  1971)  (Stevens,  J.,  dissenting)). 

We  hold,  therefore,  that  the  two-part  Strickland  v.  Wash- 
ington  test  applies  to  challenges  to  guilty  pleas  based  on  inef- 
fective assistance  of  counsel.  In  the  context  of  guilty  pleas, 
the  first  half  of  the  Strickland  v.  Washington  test  is  nothing 
more  than  a  restatement  of  the  standard  of  attorney  compe- 
tence already  set  forth  in  Tollett  v.  Henderson,  supra,  and 


HILL  v.  LOCKHART  59 

52  Opinion  of  the  Court 

McMann  v.  Richardson,  supra.  The  second,  or  "prejudice," 
requirement,  on  the  other  hand,  focuses  on  whether  counsel's 
constitutionally  ineffective  performance  affected  the  outcome 
of  the  plea  process.  In  other  words,  in  order  to  satisfy  the 
"prejudice"  requirement,  the  defendant  must  show  that  there 
is  a  reasonable  probability  that,  but  for  counsel's  errors,  he 
would  not  have  pleaded  guilty  and  would  have  insisted  on 
going  to  trial.* 

In  many  guilty  plea  cases,  the  "prejudice"  inquiry  will 
closely  resemble  the  inquiry  engaged  in  by  courts  review- 
ing ineffective-assistance  challenges  to  convictions  obtained 
through  a  trial.  For  example,  where  the  alleged  error  of 
counsel  is  a  failure  to  investigate  or  discover  potentially 
exculpatory  evidence,  the  determination  whether  the  error 
"prejudiced"  the  defendant  by  causing  him  to  plead  guilty 
rather  than  go  to  trial  will  depend  on  the  likelihood  that  dis- 
covery of  the  evidence  would  have  led  counsel  to  change  his 
recommendation  as  to  the  plea.  This  assessment,  in  turn, 
will  depend  in  large  part  on  a  prediction  whether  the  evi- 
dence likely  would  have  changed  the  outcome  of  a  trial. 
Similarly,  where  the  alleged  error  of  counsel  is  a  failure  to 
advise  the  defendant  of  a  potential  affirmative  defense  to  the 
crime  charged,  the  resolution  of  the  "prejudice"  inquiry  will 
depend  largely  on  whether  the  affirmative  defense  likely 
would  have  succeeded  at  trial.  See,  e.  g.,  Evans  v.  Meyer, 
742  F.  2d  371,  375  (CA7  1984)  ("It  is  inconceivable  to  us  ... 
that  [the  defendant]  would  have  gone  to  trial  on  a  defense  of 
intoxication,  or  that  if  he  had  done  so  he  either  would  have 
been  acquitted  or,  if  convicted,  would  nevertheless  have  been 
given  a  shorter  sentence  than  he  actually  received").  As  we 
explained  in  Strickland  v.  Washington,  supra,  these  predic- 


*Several  Courts  of  Appeals  have  adopted  this  general  approach.  See 
Thomas  v.  Lockhart,  738  F.  2d  304,  307  (CAS  1984);  accord,  United  States 
v.  Gavilan,  761  F.  2d  226,  228  (CA5  1985);  Beans  v.  Black,  757  F.  2d  933, 
936-937  (CAS  1985);  Mitchell  v.  Scully,  746  F.  2d  951,  957  (CA2  1984); 
Evans  v.  Meyer,  742  F.  2d  371,  374-375  (CA7  1984). 


60  OCTOBER  TERM,  1985 

WHITE,  J.,  concurring  in  judgment  474  U.  S. 

tions  of  the  outcome  at  a  possible  trial,  where  necessary, 
should  be  made  objectively,  without  regard  for  the  "idiosyn- 
crasies of  the  particular  decisionmaker."  Id.,  at  695. 

In  the  present  case  the  claimed  error  of  counsel  is  errone- 
ous advice  as  to  eligibility  for  parole  under  the  sentence 
agreed  to  in  the  plea  bargain.  App.  31.  We  find  it  unnec- 
essary to  determine  whether  there  may  be  circumstances 
under  which  erroneous  advice  by  counsel  as  to  parole  eligibil- 
ity may  be  deemed  constitutionally  ineffective  assistance  of 
counsel,  because  in  the  present  case  we  conclude  that  peti- 
tioner's allegations  are  insufficient  to  satisfy  the  Strickland 
v.  Washington  requirement  of  "prejudice."  Petitioner  did 
not  allege  in  his  habeas  petition  that,  had  counsel  correctly 
informed  him  about  his  parole  eligibility  date,  he  would  have 
pleaded  not  guilty  and  insisted  on  going  to  trial.  He  alleged 
no  special  circumstances  that  might  support  the  conclusion 
that  he  placed  particular  emphasis  on  his  parole  eligibility  in 
deciding  whether  or  not  to  plead  guilty.  Indeed,  petitioner's 
mistaken  belief  that  he  would  become  eligible  for  parole  after 
serving  one-third  of  his  sentence  would  seem  to  have  affected 
not  only  his  calculation  of  the  time  he  likely  would  serve  if 
sentenced  pursuant  to  the  proposed  plea  agreement,  but  also 
his  calculation  of  the  time  he  likely  would  serve  if  he  went  to 
trial  and  were  convicted. 

Because  petitioner  in  this  case  failed  to  allege  the  kind 
of  "prejudice"  necessary  to  satisfy  the  second  half  of  the 
Strickland  v.  Washington  test,  the  District  Court  did  not  err 
in  declining  to  hold  a  hearing  on  petitioner's  ineffective 
assistance  of  counsel  claim.  The  judgment  of  the  Court  of 
Appeals  is  therefore 

Affirmed. 

JUSTICE  WHITE,  with  whom  JUSTICE  STEVENS  joins,  con- 
curring in  the  judgment. 

The  only  question  properly  before  the  Court  is  whether 
petitioner  is  entitled  to  an  evidentiary  hearing  in  a  federal 
habeas  proceeding  where  he  has  alleged  that  his  guilty  plea 


HILL  v.  LOCKHART  61 

52  WHITE,  J.,  concurring  in  judgment 

entered  in  state  court  was  involuntary  and  resulted  from 
ineffective  assistance  of  counsel.  I  write  separately  to  state 
why,  under  the  particular  facts  of  this  case,  petitioner  is  not 
entitled  to  an  evidentiary  hearing  on  his  habeas  claim  of  inef- 
fective assistance  of  counsel. 

It  is  necessary,  in  my  view,  to  focus  on  the  "plea  state- 
ment" signed  by  petitioner.  The  statement  is  a  standardized 
form  to  be  completed  by  defense  counsel,  in  consultation  with 
his  client,  and  submitted  to  the  court  for  consideration.  The 
form  calls  for  the  insertion  of  specific  information  in  the  ap- 
propriate spaces.  Among  the  items  to  be  included  are  the 
crime  with  which  the  defendant  is  charged,  whether  that 
crime  is  a  felony  or  a  misdemeanor,  and  the  maximum  sen- 
tence and/or  fine  defendant  could  receive  if  found  guilty  of 
the  offense.  There  is  also  a  blank  space  in  which  to  indicate 
the  number  of  prior  convictions  which  the  defendant  has  suf- 
fered. App.  28. 

As  the  majority  indicates,  petitioner  signed  such  a  written 
"plea  statement"  indicating  that  he  understood  the  charges 
against  him,  the  consequences  of  pleading  guilty,  and  that  he 
was  "aware  of  everything  in  this  document."  Ante,  at  54; 
App.  28.  In  the  space  provided  for  disclosing  the  number  of 
prior  convictions,  petitioner's  form  reads  "0."  Ibid. 

Although  it  is  unclear  whether  petitioner  or  his  counsel 
filled  out  the  form  and  inserted  this  number,  there  is  no  alle- 
gation that  petitioner  told  his  attorney  about  his  previous 
Florida  felony  conviction.  Indeed,  it  is  incredible  that  the 
attorney  would  have  filled  in  the  "0"  had  he  known  there  was 
a  prior  conviction.  Petitioner  thus  has  no  factual  basis  for 
suggesting  that  his  attorney's  advice  was  incompetent,  or 
that  he  was  affirmatively  misled  by  counsel  as  to  his  earliest 
possible  parole  eligibility  date.  Without  an  allegation  that 
the  attorney  knew  of  petitioner's  prior  conviction,  but  failed 
to  inform  him  of  the  applicability  of  the  Arkansas  "second  of- 
fender" statute,  there  is  no  reason  to  provide  petitioner  with 
an  evidentiary  hearing  on  his  claim  of  ineffective  assistance 


62  OCTOBER  TERM,  1985 

WHITE,  J.,  concurring  in  judgment  474  U.  S. 

of  counsel.  None  of  his  allegations,  if  proved,  would  entitle 
petitioner  to  relief,  as  there  is  nothing  in  the  record  to  in- 
dicate "that  [defense]  counsel's  representation  fell  below  an 
objective  standard  of  reasonableness."  Strickland  v.  Wash- 
ington, 466  U.  S.  668,  687-688  (1984);  see  also  McMann  v. 
Richardson,  397  U.  S.  759,  771  (1970). 

Were  it  not  for  the  misinformation  in  the  plea  statement  — 
had  petitioner's  attorney  known  of  a  prior  conviction  and  still 
informed  petitioner  that  he  would  be  eligible  for  parole  after 
serving  one-third  of  his  sentence— petitioner  would  be  enti- 
tled to  an  evidentiary  hearing  and  an  opportunity  to  prove 
that  counsel's  failure  to  advise  of  him  of  the  effect  of  Ark. 
Stat.  Ann.  §43-2829B(3)  (1977)  amounted  to  ineffective 
assistance  of  counsel.  The  failure  of  an  attorney  to  inform 
his  client  of  the  relevant  law  clearly  satisfies  the  first  prong 
of  the  Strickland  analysis  adopted  by  the  majority,  as  such 
an  omission  cannot  be  said  to  fall  within  "the  wide  range  of 
professionally  competent  assistance"  demanded  by  the  Sixth 
Amendment.  Strickland  v.  Washington,  supra,  at  690. 

Moreover,  an  examination  of  the  record  reveals  that  peti- 
tioner alleged  sufficient  facts  to  "show  that  there  is  a  reason- 
able probability  that,  but  for  counsel's  errors,  he  would  not 
have  pleaded  guilty  and  would  have  insisted  on  going  to 
trial."  Ante,  at  59.  In  the  first  two  paragraphs  of  his  ha- 
beas petition,  petitioner  alleged,  in  pertinent  part,  as  follows: 

"I  agreed  to  plead  guilty  with  the  understanding  that 
I'd  get  35  yrs.  for  1st  degree  murder  &  10  years  concur- 
rent for  theft  of  property,  and  that  I  would  only  have  1/3 
of  my  sentence  to  do,  less  good  time.  .  .  . 

"My  lawyer  told  me  that  a  plea  negotiation  was  bind- 
ing to  both  sides  and  that  the  Court  would  impose  the 
sentence  agreed  to  by  me  and  the  prosecutor.  I  did  not 
know  that  the  Court  could  deviate  from  the  concessions 
agreed  to  without  informing  me,  nor  that  it  could  say  to 
do  1/3  minimum  enstead  [sic]  of  just  1/3,  until  parole." 
App.  8-9. 


HILL  u  LOCKHART  63 

52  WHITE,  J.,  concurring  in  judgment 

Later,  petitioner  made  the  following  objections  to  the  Magis- 
trate's proposed  order: 

"Petitioner's  first  two  arguments  should  be  restated  to 
allege  that  his  guilty  plea  was  involuntary  in  that  his 
counsel  improperly  advised  him  as  to  his  earliest  possible 
parole  eligibility  date  and  as  a  result  of  that  incorrect 
advice  the  Petitioner  did  not  fully  understand  the  conse- 
quences of  his  plea."  Id.,  at  40. 

"The  Petitioner  contends  that  his  counsel's  erroneous 
advice  concerning  his  potential  parole  eligibility  date  was 
a  critical  factor  in  his  decision  to  enter  a  guilty  plea.  It 
was  an  important  consequence  of  his  plea  which  he  did 
not  understand."  Id.,  at  41-42. 

"It  is  Petitioner's  contention  that  he  would  not  have 
entered  the  negotiated  plea  had  his  attorney  correctly 
advised  him  that  he  would  be  required  to  serve  one-half 
of  his  sentence  less  good  time  under  Arkansas  law." 
Id.,  at  46-47. 

In  sum,  because  petitioner  failed  to  allege  that  his  attorney 
knew  about  his  prior  conviction  but  failed  to  inform  him  of  the 
applicability  of  Ark.  Stat.  Ann.  §43-2829B(3)  (1977),  I  find 
that  petitioner  did  not  allege  sufficient  facts  to  entitle  him 
to  an  evidentiary  hearing  on  his  ineffective-assistance-of- 
counsel  claim.  Had  petitioner  made  such  an  allegation,  how- 
ever, he  would  be  entitled  to  such  a  hearing,  as  he  clearly 
alleged  more  than  sufficient  facts  that,  if  proved,  would  show 
that  he  was  prejudiced  by  his  counsel's  error,  and  thus  enti- 
tled to  habeas  relief. 


64  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 


GREEN  ET  AL.  v.  MANSOUR,  DIRECTOR,  MICHIGAN 
DEPARTMENT  OF  SOCIAL  SERVICES 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  SIXTH  CIRCUIT 

No.  84-6270.     Argued  October  7,  1985— Decided  December  3,  1985 

Petitioner  recipients  of  benefits  under  the  federal  Aid  to  Families  With 
Dependent  Children  (AFDC)  program  brought  class  actions  in  Federal 
District  Court  against  respondent  Director  of  the  Michigan  Department 
of  Social  Services.  They  claimed  that  respondent's  policies  of  prohibit- 
ing the  deduction  of  child  care  costs  and  requiring  the  inclusion  of  step- 
parents' income  for  purposes  of  calculating  earned  income,  thereby 
determining  eligibility  for  and  the  amount  of  AFDC  benefits,  violated 
applicable  federal  law.  Petitioners  sought  an  injunction,  a  declaratory 
judgment,  and  "notice  relief."  While  the  actions  were  pending,  Con- 
gress amended  the  relevant  federal  statute  to  expressly  require  States 
to  deduct  child  care  expenses  and  to  include  stepparents'  income. 
Granting  respondent's  motions  to  dismiss  in  each  case,  the  District  Court 
held  that  the  changes  in  federal  law  rendered  moot  the  claims  for  pro- 
spective relief,  that  the  remaining  claims  for  declaratory  and  "notice 
relief"  related  solely  to  past  violations  of  federal  law,  and  that  such  retro- 
spective relief  was  barred  by  the  Eleventh  Amendment.  The  Court  of 
Appeals  affirmed  in  a  consolidated  appeal. 

Held: 

1.  Petitioners  are  not  entitled  to  "notice  relief."     Since  there  is  no 
continuing  violation  of  federal  law  to  enjoin,  and  therefore  no  valid  in- 
junction to  which  notice  could  attach,  the  notice  cannot  be  justified  as  a 
mere  case-management  device  that  is  ancillary  to  a  judgment  awarding 
valid  prospective  relief.     Quern  v.  Jordan,  440  U.  S.  332,  distinguished. 
Absent  these  conditions,  the  Eleventh  Amendment  limitation  on  the 
Art.  Ill  power  of  federal  courts  prevents  them  from  ordering  "notice 
relief"  against  States  because  it  is  not  the  type  of  remedy  designed  to 
prevent  ongoing  violations  of  supreme  federal  law.     Pp.  68—72. 

2.  Nor  are  petitioners  entitled  to  a  declaratory  judgment  that  re- 
spondent violated  federal  law  in  the  past.     Where  there  is  no  claimed 
continuing  violation  of  federal  law  or  any  threat  of  future  violation,  a 
declaratory  judgment  is  inappropriate  because  its  purpose  could  only  be 
to  provide  a  federal  judgment  on  the  issue  of  liability  with  the  hope  that 
it  would  be  res  judicata  in  state-court  proceedings,  leaving  to  the  state 
courts  only  a  form  of  accounting  proceeding  whereby  damages  or  restitu- 


GREEN  v.  MANSOUR  65 

64  Opinion  of  the  Court 

tion  would  be  computed.     This  would  be  an  inappropriate  exercise  of 
federal  judicial  power  because  it  would  have  much  the  same  effect  as  an 
award  of  damages  or  restitution,  which  kinds  of  relief  against  States  are 
prohibited  by  the  Eleventh  Amendment.     Pp.  72-73. 
742  F.  2d  277,  affirmed. 

REHNQUIST,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER, 
C.  J.,  and  WHITE,  POWELL,  and  O'CONNOR,  JJ.,  joined.  BRENNAN,  J., 
filed  a  dissenting  opinion,  in  which  MARSHALL,  BLACKMUN,  and  STEVENS, 
JJ.,  joined,  post,  p.  74.  MARSHALL,  J.,  filed  a  dissenting  opinion,  in 
which  BRENNAN  and  STEVENS,  JJ.,  joined,  post,  p.  79.  BLACKMUN,  J., 
filed  a  dissenting  opinion,  in  which  BRENNAN,  MARSHALL,  and  STEVENS, 
JJ.,  joined,  post,  p.  81. 

William  Burnham  argued  the  cause  for  petitioners.  With 
him  on  the  briefs  was  Paul  D.  Reingold. 

Louis  J.  Caruso,  Solicitor  General  of  Michigan,  argued  the 
cause  for  respondent.  With  him  on  the  brief  were  Thomas 
L.  Casey,  Erica  Weiss  Marsden,  and  Robert  N.  Rosenberg, 
Assistant  Attorneys  General. 

JUSTICE  REHNQUIST  delivered  the  opinion  of  the  Court. 

Petitioners  brought  two  separate  class  actions  in  the 
United  States  District  Court  for  the  Eastern  District  of 
Michigan  against  respondent  Director  of  the  Michigan  De- 
partment of  Social  Services,  claiming  that  respondent's  cal- 
culations of  benefits  under  the  federal  Aid  to  Families  With 
Dependent  Children  (AFDC)  program  violated  certain  pro- 
visions of  that  federal  law.  Before  a  final  determination  on 
the  merits  of  either  case  could  be  made,  Congress  amended 
the  relevant  statutory  provisions.  It  is  undisputed  that  re- 
spondent's calculations  thereafter  have  conformed  to  federal 
law.  Notwithstanding  this  fact,  petitioners  claim  that  they 
were  entitled  to  have  the  District  Court  award  them  both 
"notice  relief"  and  a  declaration  that  respondent's  prior  con- 
duct violated  federal  law.  The  District  Court  denied  peti- 
tioners both  forms  of  relief,  and  the  Court  of  Appeals  for 
the  Sixth  Circuit  affirmed.  We  now  affirm  the  judgment  of 
the  Court  of  Appeals,  holding  that  the  Eleventh  Amendment 


66  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

to  the  United  States  Constitution  and  applicable  principles 
governing  the  issuance  of  declaratory  judgments  forbid  the 
award  of  either  form  of  relief. 

The  two  class  actions  involved  in  this  case  were  brought  on 
behalf  of  recipients  of  benefits  disbursed  under  the  AFDC 
program.  See  42  U.  S.  C.  §§  601-615.  The  AFDC  program 
uses  a  person's  earned  income  in  determining  eligibility  for, 
and  the  amount  of,  benefits.  See  §602.  The  complaints 
alleged  that  certain  of  respondent's  policies  and  regulations 
violated  42  U.  S.  C.  §  1983  by  inflating  their  respective  class 
members'  earned  income  and  thereby  causing  a  reduction  or 
termination  of  AFDC  benefits  contrary  to  the  applicable  fed- 
eral law. 

One  putative  class  challenged  respondent's  policy  of  pro- 
hibiting the  deduction  of  child  care  costs  in  the  calculation  of 
earned  income.  While  the  case  was  pending  in  the  District 
Court,  Congress  changed  the  relevant  provisions  of  the 
AFDC  program  to  expressly  require  participating  States  to 
deduct  child  care  expenses  up  to  a  specified  amount.  Re- 
spondent thereafter  brought  state  policy  into  compliance 
with  this  amendment  and  began  deducting  child  care  ex- 
penses in  the  calculation  of  earned  income.  There  is  no  claim 
that  respondent's  current  child  care  deduction  policy  violates 
federal  law. 

The  other  putative  class  challenged  respondent's  policy  of 
automatically  including  stepparents'  income  in  the  calculation 
of  earned  income.  The  District  Court  issued  a  preliminary 
injunction  preventing  respondent  from  enforcing  its  auto- 
matic inclusion  policy.  But  again,  while  the  matter  was 
pending  on  the  merits,  Congress  amended  the  relevant  sec- 
tion of  the  AFDC  program  to  expressly  require  States  to  in- 
clude stepparent  income  in  the  calculation  of  earned  income. 
The  parties  thereafter  stipulated  that  the  District  Court 
should  terminate  its  preliminary  injunction  as  of  the  effective 
date  of  the  amendment.  Here,  too,  there  is  no  claim  that  re- 
spondent has  not  complied  with  federal  law  since  that  time. 


GREEN  u  MANSOUR  67 

64  Opinion  of  the  Court 

The  District  Court  granted  respondent's  motions  to  dis- 
miss in  each  case.  It  held  in  each  that  the  changes  in  federal 
law  rendered  moot  the  claims  for  prospective  relief,  and  that 
the  remaining  claims  for  declaratory  and  notice  relief  related 
solely  to  past  violations  of  federal  law.  Such  retrospective 
relief,  the  court  determined,  is  barred  by  the  Eleventh 
Amendment. 

The  Court  of  Appeals  affirmed  in  a  consolidated  appeal. 
Banas  v.  Dempsey,  742  F.  2d  277  (1984).  It  agreed  that  the 
changes  in  federal  law  rendered  moot  the  claims  for  prospec- 
tive relief.  Id. ,  at  281-283.  It  also  agreed  that  because  the 
sought-after  notice  and  declaratory  relief  was  retrospective 
in  nature,  the  relief  was  barred  by  Edelman  v.  Jordan,  415 
U.  S.  651  (1974).  742  F.  2d,  at  286-288.  It  reasoned  that 
when  there  is  no  prospective  relief  to  which  notice  can  be  an- 
cillary, even  notice  of  the  sort  approved  in  Quern  v.  Jordan, 
440  U.  S.  332  (1979),  cannot  escape  the  Eleventh  Amend- 
ment bar.  742  F.  2d,  at  287-288.  Declaratory  relief  is  simi- 
larly barred  under  such  circumstances,  it  explained,  because 
such  relief  could  relate  solely  to  past  violations  of  federal  law. 
Id.,  at  288. 

We  granted  certiorari  to  resolve  a  conflict  in  the  Circuits 
over  whether  federal  courts  may  order  the  giving  of  notice  of 
the  sort  approved  in  Quern  v.  Jordan,  supra,  or  issue  a  de- 
claratory judgment  that  state  officials  violated  federal  law  in 
the  past  when  there  is  no  ongoing  violation  of  federal  law. 
The  decision  by  the  Court  of  Appeals  in  this  case  agrees  with 
the  result  in  Colbeth  v.  Wilson,  554  F.  Supp.  539  (Vt.  1982), 
aff  'd,  707  F.  2d  57  (CA2  1983)  (per  curiam),  but  it  conflicts 
with  the  decisions  in  Appleyard  v.  Wallace,  754  F.  2d  955, 
959-963  (CA11  1985);  Randall  v.  Lukhard,  729  F.  2d  966 
(CA4)  (en  bane),  cert,  denied,  469  U.  S.  872  (1984);  Beltran 
v.  Myers,  701  F.  2d  91,  94  (CA9)  (per  curiam),  cert,  denied, 
462  U.  S.  1134  (1983);  and  Silva  v.  Vowell,  621  F.  2d  640, 
650-654  (CA5  1980),  which  all  allowed  notice  relief  even 
though  changes  in  state  policy  or  federal  law  rendered  moot 


68  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

any  claim  for  injunctive  relief  stopping  ongoing  violations  of 
federal  law.  We  now  affirm  the  decision  of  the  Court  of 
Appeals. 

The  Eleventh  Amendment  confirms  that  "the  fundamental 
principle  of  sovereign  immunity  limits  the  grant  of  judicial 
authority  in  Art.  III."  Pennhurst  State  School  &  Hospital 
v.  Halderman,  465  U.  S.  89,  98  (1984).  Because  of  the  Elev- 
enth Amendment,  States  may  not  be  sued  in  federal  court 
unless  they  consent  to  it  in  unequivocal  terms  or  unless  Con- 
gress, pursuant  to  a  valid  exercise  of  power,  unequivocally 
expresses  its  intent  to  abrogate  the  immunity.  Id.,  at  99. 
The  landmark  case  of  Ex  parte  Young,  209  U.  S.  123  (1908), 
created  an  exception  to  this  general  principle  by  asserting 
that  a  suit  challenging  the  constitutionality  of  a  state  official's 
action  in  enforcing  state  law  is  not  one  against  the  State. 
Id.,  at  159-160.  The  theory  of  Young  was  that  an  uncon- 
stitutional statute  is  void,  id.,  at  159,  and  therefore  does  not 
"impart  to  [the  official]  any  immunity  from  responsibility  to 
the  supreme  authority  of  the  United  States."  Id.,  at  160. 
Young  also  held  that  the  Eleventh  Amendment  does  not 
prevent  federal  courts  from  granting  prospective  injunctive 
relief  to  prevent  a  continuing  violation  of  federal  law.  Id. , 
at  155—156,  159.  We  have  refused  to  extend  the  reasoning 
of  Young,  however,  to  claims  for  retrospective  relief.  See 
Pennhurst,  supra,  at  102-103;  Quern  v.  Jordan,  supra,  at 
337;  Edelman  v.  Jordan,  supra,  at  668. 

Both  prospective  and  retrospective  relief  implicate  Elev- 
enth Amendment  concerns,  but  the  availability  of  prospec- 
tive relief  of  the  sort  awarded  in  Ex  parte  Young  gives  life 
to  the  Supremacy  Clause.  Remedies  designed  to  end  a  con- 
tinuing violation  of  federal  law  are  necessary  to  vindicate  the 
federal  interest  in  assuring  the  supremacy  of  that  law.  See 
Pennhurst,  supra,  at  102.  See  also  Milliken  v.  Bradley,  433 
U.  S.  267  (1977).  But  compensatory  or  deterrence  interests 
are  insufficient  to  overcome  the  dictates  of  the  Eleventh 
Amendment.  Petitioners  concede  that  any  claim  they  might 


GREEN  u  MANSOUR  69 

64  Opinion  of  the  Court 

have  had  for  the  specific  type  of  injunctive  relief  approved  in 
Ex  parte  Young  was  rendered  moot  by  the  amendments  to 
the  AFDC  program.  They  nevertheless  seek  "notice  relief" 
of  the  type  approved  in  Quern  v.  Jordan,  arguing  that  notice 
is  an  independent  form  of  prospective  relief  protected  against 
the  Eleventh  Amendment  bar  by  Ex  parte  Young.  In  tak- 
ing this  position,  we  think  petitioners  misconceive  our  Elev- 
enth Amendment  jurisprudence  and  our  decision  in  Quern. 
Quern  was  the  last  chapter  in  the  litigation  that  initially 
gave  rise  to  Edelman  v.  Jordan,  supra.  The  plaintiffs  in 
that  litigation  challenged  a  State's  administration  of  the 
federal-state  program  for  Aid  to  the  Aged,  Blind,  or  Disabled 
(AABD).  The  District  Court  issued  a  declaratory  judgment 
that  current  state  regulations  governing  the  administration 
of  the  program  violated  federal  regulations  then  in  effect.1 
It  therefore  permanently  enjoined  the  state  officials  from 
continuing  to  violate  federal  law.  Although  the  language  of 
the  declaratory  judgment  was  no  broader  than  necessary  to 
complement  the  injunction  against  the  current  violation  of 
federal  law,  it  implied  that  the  defendants  had  violated  fed- 
eral law  in  the  past.  The  District  Court  therefore  issued 
a  second  injunction  ordering  the  defendants  to  release  and 
remit  all  AABD  benefits  that  they  had  wrongfully  withheld 
on  account  of  their  past  violations  of  federal  law.  The  Court 
of  Appeals  affirmed,  Jordan  v.  Weaver,  472  F.  2d  985  (CAT 
1973),  but  we  reversed,  holding  that  the  Eleventh  Amend- 
ment barred  the  injunction  ordering  retroactive  benefits  be- 
cause it  was  effectively  an  award  of  money  damages  for  past 


1  The  declaratory  judgment  was  embodied  in  paragraph  4  of  the  District 
Court's  judgment,  which  stated: 

"Illinois  Categorical  Assistance  Manual,  Section  4004,  and  subsections 
thereunder,  as  applied  to  applicants  for  AABD  are  invalid  insofar  as  they 
are  inconsistent  with  the  requirements  of  [federal  law  as  construed  in] 
paragraphs  1  and  2."  Jordan  v.  Weaver,  No.  71  C  70,  p.  3  (ND  111.,  Mar. 
15,  1972)  (emphasis  added). 


70  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

violations  of  federal  law.  Edelman  v.  Jordan,  451  U.  S.,  at 
666-669. 

On  remand,  the  District  Court  ordered  the  defendants  to 
send  notice  to  the  plaintiff  class  informing  individual  class 
members  that  they  were  wrongfully  denied  benefits  in  a  par- 
ticular amount,  together  with  a  returnable  form  for  filing 
claims  with  the  appropriate  state  agency.  The  Court  of 
Appeals  reversed,  holding  that  the  District  Court's  proposed 
notice  violated  the  Eleventh  Amendment  because  it  would 
effectively  result  in  a  federal  adjudication  of  state  liability  for 
past  violations  of  federal  law.  Jordan  v.  Trainor,  563  F.  2d 
873,  875  (CA7  1977)  (en  bane).  At  the  same  time,  the  Court 
of  Appeals  determined  that  the  Eleventh  Amendment  would 
not  bar  an  order  requiring  state  officials  to  send  "a  mere 
explanatory  notice  to  applicants  advising  them  that  there  is 
a  state  administrative  procedure  available  if  they  desire  to 
have  the  state  determine  whether  or  not  they  may  be  eligible 
for  past  benefits."  Ibid. 

We  affirmed  in  Quern  v.  Jordan,  440  U.  S.  332  (1979), 
holding  that  although  Edelman  v.  Jordan,  supra,  retained 
continuing  vitality  after  Monell  v.  New  York  City  Dept. 
of  Social  Services,  436  U.  S.  658  (1978),  see  440  U.  S.,  at 
338-345,  the  specific  notice  order  approved  by  the  Court  of 
Appeals  did  not  violate  the  Eleventh  Amendment.  Id.,  at 
346-349.  We  explained  that  the  appellate  court's  particular 
notice  order  fell  "on  the  Ex  parte  Young  side  of  the  Eleventh 
Amendment  line  rather  than  on  the  Edelman  side."  Id.,  at 
347.  We  reasoned  that  "unlike  [the  notice]  ordered  by  the 
District  Court,  [this  notice  was]  more  properly  viewed  as 
ancillary  to  the  prospective  relief  already  ordered  by  the 
court,"  id.,  at  349,  and  it  did  no  more  than  "simply  infor[m] 
class  members  that  their  federal  suit  is  at  an  end,  that  the 
federal  court  can  provide  them  with  no  further  relief,  and 
that  there  are  existing  state  administrative  procedures  which 
they  may  wish  to  pursue."  Ibid.  We  also  stressed  that  the 
state  defendants  had  not  objected  to  the  expense  of  providing 


GREEN  v.  MANSOUR  71 

64  Opinion  of  the  Court 

such  notice,  state  agencies  rather  than  federal  courts  would 
be  the  final  arbiters  of  whether  retroactive  payments  would 
be  ordered,  and  the  notice  would  not  automatically  lead  to 
any  particular  action.  Id. ,  at  347-348. 

Our  review  of  the  long,  drawn-out  Jordan  litigation  con- 
vinces us  that  neither  the  Court  of  Appeals  nor  this  Court 
conceived  of  the  requested  notice  allowed  in  that  case  to  be 
an  independent  form  of  relief.  We  simply  held  that  the  spe- 
cific order  fell  within  the  Ex  parte  Young  exception  to  the 
Eleventh  Amendment  principle  of  sovereign  immunity  be- 
cause it  was  ancillary  to  a  valid  injunction  previously  granted 
and  was  sufficiently  narrow  to  retain  its  character  as  a  mere 
case-management  device.  The  notice  in  Quern  v.  Jordan  did 
nothing  other  than  inform  a  diverse  and  partially  victorious 
class  concerning  the  extent  of  the  judgment  in  its  favor, 
cf.  Fed.  Rule  Civ.  Proc.  23(d)(2),  and  that  the  federal  courts 
could  do  no  more  for  them.  There  was  no  suggestion  that 
the  notice  itself  would  bind  state  officials  in  any  way,  or  that 
such  notice  would  be  routinely  available  as  a  form  of  relief  in 
other  cases.  Because  "notice  relief"  is  not  the  type  of  rem- 
edy designed  to  prevent  ongoing  violations  of  federal  law,  the 
Eleventh  Amendment  limitation  on  the  Art.  Ill  power  of  fed- 
eral courts  prevents  them  from  ordering  it  as  an  independent 
form  of  relief. 

Measured  by  the  standards  of  Quern,  however,  a  request 
for  a  limited  notice  order  will  escape  the  Eleventh  Amend- 
ment bar  if  the  notice  is  ancillary  to  the  grant  of  some  other 
appropriate  relief  that  can  be  "noticed."  Because  there  is 
no  continuing  violation  of  federal  law  to  enjoin  in  this  case, 
an  injunction  is  not  available.  Therefore,  notice  cannot  be 
justified  as  a  mere  case-management  device  that  is  ancillary 
to  a  judgment  awarding  valid  prospective  relief.  Petitioners 
argue,  however,  that  they  are  entitled  to  a  declaratory  judg- 
ment that  respondent  violated  federal  law  in  the  past.  Only 
if  petitioners  are  correct  in  this  assertion  can  they  properly 


72  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

claim  a  right  to  "notice"  of  a  judgment  under  the  principles  of 
Quern. 

The  Declaratory  Judgment  Act  of  1934,  28  U.  S.  C.  §  2201, 
permits  a  federal  court  to  declare  the  rights  of  a  party 
whether  or  not  further  relief  is  or  could  be  sought,  and  we 
have  held  that  under  this  Act  declaratory  relief  may  be  avail- 
able even  though  an  injunction  is  not.  Steffel  v.  Thompson, 
415  U.  S.  452,  462  (1974).  But  we  have  also  held  that  the 
declaratory  judgment  statute  "is  an  enabling  Act,  which 
confers  a  discretion  on  the  courts  rather  than  an  absolute 
right  upon  the  litigant."  Public  Service  Comm'n  v.  Wycoff 
Co.,  344  U.  S.  237,  241  (1952).  The  propriety  of  issuing  a 
declaratory  judgment  may  depend  upon  equitable  consider- 
ations, see  Samuels  v.  Mackell,  401  U.  S.  66,  73  (1971),  and 
is  also  "informed  by  the  teachings  and  experience  concerning 
the  functions  and  extent  of  federal  judicial  power."  Wycoff 9 
supra,  at  243;  cf.  Younger  v.  Harris,  401  U.  S.  37,  44-45 
(1971). 

In  applying  these  principles,  we  have  held  that  a  declara- 
tory judgment  is  not  available  in  a  number  of  instances.  In 
Great  Lakes  Co.  v.  Huffman,  319  U.  S.  293  (1943),  we  held 
that  a  declaratory  judgment  was  not  available  to  obtain  a 
determination  of  the  constitutionality  of  a  state  tax  even 
though  the  relevant  federal  statute  prohibited  federal  courts 
only  from  issuing  injunctions  against  the  collection  of  such 
taxes.  Id.,  at  299.  We  held  in  Samuels  v.  Mackell,  supra, 
that  a  declaratory  judgment  declaring  a  state  criminal  statute 
unconstitutional  was  unavailable  where  it  would  have  much 
the  same  effect  as  an  injunction  prohibiting  enforcement  of 
the  statute,  and  the  latter  was  barred  by  traditional  princi- 
ples of  equity,  comity,  and  federalism.  Id.,  at  69-73.  In 
Wycoff,  we  held  that  it  was  inappropriate  to  issue  a  declara- 
tory judgment  deciding  whether  the  plaintiff's  business  was 
interstate  commerce  and  therefore  potentially  immune  from 
state  regulation.  344  U.  S.,  at  244,  247-249.  We  reasoned 
that  if  the  federal  judgment  were  res  judicata  in  subsequent 


GREEN  v.  MANSOUR  73 

64  Opinion  of  the  Court 

state  proceedings,  then  the  federal  court  will  have  lifted  the 
case  out  of  the  state  court  before  the  state  agency  or  court 
can  hear  it.  Id.,  at  247.  On  the  other  hand,  if  the  federal 
judgment  would  not  have  such  an  effect,  then  it  would 
"serv[e]  no  useful  purpose  as  a  final  determination  of  rights." 
Ibid. 

We  think  that  these  cases  demonstrate  the  impropriety  of 
the  issuance  of  a  declaratory  judgment  in  this  case.  There  is 
no  claimed  continuing  violation  of  federal  law,  and  therefore 
no  occasion  to  issue  an  injunction.  Nor  can  there  be  any 
threat  of  state  officials  violating  the  repealed  law  in  the  fu- 
ture. Cf.  Steffel  v.  Thompson,  supra,  at  454.  There  is  a 
dispute  about  the  lawfulness  of  respondent's  past  actions,  but 
the  Eleventh  Amendment  would  prohibit  the  award  of  money 
damages  or  restitution  if  that  dispute  were  resolved  in  favor 
of  petitioners.  We  think  that  the  award  of  a  declaratory 
judgment  in  this  situation  would  be  useful  in  resolving  the 
dispute  over  the  past  lawfulness  of  respondent's  action  only  if 
it  might  be  offered  in  state-court  proceedings  as  res  judicata 
on  the  issue  of  liability,  leaving  to  the  state  courts  only  a  form 
of  accounting  proceeding  whereby  damages  or  restitution 
would  be  computed.  But  the  issuance  of  a  declaratory  judg- 
ment in  these  circumstances  would  have  much  the  same  ef- 
fect as  a  full-fledged  award  of  damages  or  restitution  by  the 
federal  court,  the  latter  kinds  of  relief  being  of  course  prohib- 
ited by  the  Eleventh  Amendment.  The  teachings  of  Huff- 
man, Samuels,  and  Wycojf  are  that  a  declaratory  judgment 
is  not  available  when  the  result  would  be  a  partial  "end  run" 
around  our  decision  in  Edelman  v.  Jordan,  415  U.  S.  651 
(1974). 2 


2  If,  of  course,  petitioners  would  make  no  claim  that  the  federal  declara- 
tory judgment  was  res  judicata  in  later  commenced  state  proceedings,  the 
declaratory  judgment  would  serve  no  purpose  whatever  in  resolving  the 
remaining  dispute  between  the  parties,  and  is  unavailable  for  that  reason. 
Wycoff,  344  U.  S.,  at  247. 


74  OCTOBER  TERM,  1985 

BRENNAN,  J. ,  dissenting  474  U.  S. 

JUSTICE  BRENNAN'S  dissent  contends  that  because  the 
injunction  and  declaratory  judgment  in  Quern  implied  past 
violations  of  federal  law,  declaratory  judgments  expressly 
adjudicating  the  question  of  past  violations  are  routinely 
available.  We  think  he  is  mistaken.  The  District  Court's 
injunction  and  declaratory  judgment  against  continuing  and 
future  violations  of  federal  law  in  Quern  implied  that  similar 
violations  had  occurred  in  the  past  because  neither  state  nor 
federal  policy  had  varied  through  the  time  of  judgment. 
Here,  by  contrast,  there  are  no  present  violations  under  the 
amended  statute,  and  even  if  there  were,  an  injunction 
against  them  would  not  imply  that  past  practice  violated  the 
repealed  federal  law.  Thus,  a  declaratory  judgment  that  re- 
spondent violated  federal  law  in  the  past  would  have  to  stand 
on  its  own  feet  as  an  appropriate  exercise  of  federal  jurisdic- 
tion in  this  case.  This  it  cannot  do  for  the  reasons  we  have 
previously  stated. 

We  hold  that  the  District  Court  was  correct  in  concluding 
that  neither  the  "notice"  proposed  by  petitioners  nor  a  de- 
claratory judgment  should  have  issued  in  a  case  of  this  type. 
The  judgment  of  the  Court  of  Appeals  is  therefore 

Affirmed. 

JUSTICE  BRENNAN,  with  whom  JUSTICE  MARSHALL, 
JUSTICE  BLACKMUN,  and  JUSTICE  STEVENS  join,  dissenting. 

Last  Term,  in  my  dissent  in  Atascadero  State  Hospital  v. 
Scanlon,  473  U.  S.  234,  257  (1985),  I  explained  at  length 
my  view  that  the  Court's  Eleventh  Amendment  doctrine 
"lacks  a  textual  anchor  [in  the  Constitution],  a  firm  historical 
foundation,  or  a  clear  rationale."  Today's  decision  demon- 
strates that  the  absence  of  a  stable  analytical  structure  un- 
derlying the  Court's  Eleventh  Amendment  jurisprudence 
produces  inconsistent  decisions. 

In  Quern  v.  Jordan,  440  U.  S.  332  (1979),  the  State  of 
Illinois  contended  that  the  notice  relief  ordered  by  the  Court 
of  Appeals,  which  was  identical  in  all  significant  respects  to 


GREEN  v.  MANSOUR  75 

64  BRENNAN,  J. ,  dissenting 

that  requested  in  the  instant  case,1  offended  the  Eleventh 
Amendment  because  "giving  the  proposed  notice  [would]  lead 
inexorably  to  the  payment  of  state  funds  for  retroactive 
benefits  and  therefore  it,  in  effect,  amounts  to  a  monetary 
award."  Id.,  at  347.  JUSTICE  REHNQUIST,  writing  for  the 
Court,  rejected  that  argument: 

"[T]he  chain  of  causation  which  petitioner  seeks  to  estab- 
lish is  by  no  means  unbroken;  it  contains  numerous  miss- 
ing links,  which  can  be  supplied,  if  at  all,  only  by  the 
State  and  members  of  the  plaintiff  class  and  not  by  a 
federal  court.  The  notice  approved  by  the  Court  of 
Appeals  simply  apprises  plaintiff  class  members  of  the 
existence  of  whatever  administrative  procedures  may  al- 
ready be  available  under  state  law  by  which  they  may  re- 
ceive a  determination  of  eligibility  for  past  benefits.  .  .  . 
The  mere  sending  of  that  notice  does  not  trigger  the 
state  administrative  machinery.  Whether  a  recipient  of 
notice  decides  to  take  advantage  of  those  available  state 
procedures  is  left  completely  to  the  discretion  of  that 
particular  class  member;  the  federal  court  plays  no  role 
in  that  decision.  And  whether  or  not  the  class  member 
will  receive  retroactive  benefits  rests  entirely  with  the 


1  Green  asked  the  District  Court  to  order  that  notices  be  sent  out  to 
other  AFDC  recipients  advising  them  of  the  outcome  of  the  litigation,  i.  e., 
of  the  declaratory  judgment  and  telling  them  that  state  administrative  pro- 
ceedings might  be  available  to  them  to  obtain  retroactive  benefits.  App. 
132.  Similarly,  the  notice  approved  in  Quern  v.  Jordan,  440  U.  S. ,  at  349, 
"mform[ed]  class  members  that  their  federal  suit  [was]  at  an  end,  that  the 
federal  court  [could]  provide  them  with  no  further  relief,  and  that  there 
[were]  existing  state  administrative  procedures  which  they  may  wish  to 
pursue."  The  class  members  were  "'given  no  more  .  .  .  than  what  they 
would  have  gathered  by  sitting  in  the  courtroom/  "  Ibid.,  quoting  Jordan 
v.  Trainor,  563  F.  2d  873,  877-878  (CA7  1977).  And,  of  course,  what  class 
members  would  have  gathered  by  sitting  in  the  courtroom  was  the  sub- 
stantive outcome  of  the  litigation — a  declaration  that  Illinois  officials  had 
violated  federal  law. 


76  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

State,  its  agencies,  courts,  and  legislature,  not  with  the 
federal  court."  Id.,  at  347-348. 

In  the  present  case,  the  Court  turns  around  and  accepts 
the  argument  made  by  the  State  of  Illinois  in  Quern  with 
respect  to  Green's  request  for  declaratory  relief.  JUSTICE 
REHNQUIST  states  that  declaratory  relief  is  barred  by  the 
Eleventh  Amendment  because 

"the  award  of  a  declaratory  judgment  in  this  situation 
would  be  useful  in  resolving  the  dispute  over  the  past 
lawfulness  of  respondent's  action  only  if  it  might  be  of- 
fered in  state-court  proceedings  as  res  judicata  on  the 
issue  of  liability,  leaving  to  the  state  courts  only  a  form 
of  accounting  proceeding  whereby  damages  or  restitu- 
tion would  be  computed.  But  the  issuance  of  a  declara- 
tory judgment  in  these  circumstances  would  have  much 
the  same  effect  as  a  full-fledged  award  of  damages  or 
restitution  by  the  federal  court,  the  latter  kinds  of  relief 
being  .  .  .  prohibited  by  the  Eleventh  Amendment." 
Ante,  at  73. 

What  the  Court  ignores  is  that  the  declaration  by  the  Dis- 
trict Court  in  the  Quern  litigation  that  Illinois  officials  had 
violated  federal  law,  combined  with  the  notice  relief  we  sanc- 
tioned, would  have  yielded  the  same  result.2  The  Court  fails 
to  explain  adequately  why  declaratory  relief  should  be  ana- 
lyzed differently  than  notice  relief  was  in  Quern,  since  use  of 
the  declaratory  judgment  in  the  State's  courts  is  also  left 
completely  to  the  discretion  of  individual  notice  recipients 
and  the  award  of  retroactive  benefits  "rests  entirely  with  the 
State,  its  agencies,  courts,  and  legislature,  not  with  the  fed- 
eral court."  Quern,  supra,  at  348. 

2  It  is  not  enough  to  distinguish  the  cases  to  observe  that  the  notice 
relief  in  Quern  was  "ancillary"  to  a  prospective  injunction  because  the 
prospective"  injunction  had  been  moot  for  three  years  before  the  Court 
of  Appeals  fashioned  the  notice  relief  and  for  five  years  before  this  Court 
approved  it— Congress  abolished  the  federal  program  at  issue  in  Quern  in 
1974. 


GREEN  u  MANSOUR  77 

64  BRENNAN,  J.,  dissenting 

By  way  of  explication,  the  Court  retreats  to  the  position 
that  federal  courts  may  grant  relief  prospectively,  that  is, 
against  ongoing  and  future  violations  of  federal  law,  but  not 
retroactively,  that  is,  against  past  violations  of  federal  law. 
Basically  what  the  Court  is  doing,  as  it  admits  in  this  case, 
is  balancing  the  Eleventh  Amendment  and  the  Supremacy 
Clause.  Ante,  at  68.  If  relief  is  sought  against  continuing 
violations,  the  Court  finds  that  the  Supremacy  Clause  out- 
weighs the  Eleventh  Amendment;  but  if  relief  is  requested 
against  past  violations,  the  Court  determines  that  the  Elev- 
enth Amendment  outweighs  the  Supremacy  Clause.  The 
Court  cites  no  constitutional  authority  for  this  balancing  test 
and  has  not  offered,  and  I  suspect  cannot  offer,  a  satisfactory 
analytical  foundation  for  it. 

Furthermore,  I  strenuously  disagree  with  the  Court's  sug- 
gestion that  the  balance  it  has  struck  sufficiently  protects  the 
supremacy  of  federal  law.  It  may  be  true  that  the  availabil- 
ity of  prospective  relief  of  the  sort  awarded  in  Ex  parte 
Young,  209  U.  S.  123  (1908),  gives,  as  the  Court  puts  it,  some 
"life"  to  the  Supremacy  Clause.  Ante,  at  68.  That  this  rule 
saves  the  Clause  from  being  completely  moribund  does  not, 
however,  alter  the  reality  that  it  is  insufficient  to  ensure  that 
federal  law  is  paramount.  From  this  day  forward,  at  least 
with  regard  to  welfare  programs,  States  may  refuse  to  follow 
federal  law  with  impunity,  secure  in  the  knowledge  that  all 
they  need  do  to  immunize  themselves  from  accountability  in 
federal  courts  is  to  conform  their  policies  to  federal  law  on  the 
eve  of  judgment  in  a  suit  brought  to  secure  "prospective"  in- 
junctive  relief.  During  the  period  of  noncompliance,  States 
save  money  by  not  paying  benefits  according  to  the  criteria 
established  by  federal  law,8  while  needy  individuals  desig- 


3  AFDC  is  a  matching  benefits  program.  States  pay  up  to  50  percent  of 
their  benefit  payments,  the  Federal  Government  pays  the  remainder. 
House  Committee  on  Ways  and  Means,  Background  Material  and  Data  on 
Programs  within  the  Jurisdiction  of  the  Committee  on  Ways  and  Means, 
98th  Cong.,  2d  Sess.,  292  (Comm.  Print  1984). 


78  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

nated  by  Congress  as  the  beneficiaries  of  welfare  programs 
are  cheated  of  their  federal  rights.  Once  again,  the  Court's 
doctrine  "require[s]  the  federal  courts  to  protect  States  that 
violate  federal  law  from  the  legal  consequences  of  their  con- 
duct." Atascadero,  473  U.  S.,  at  258.  Surely  the  Suprem- 
acy Clause  requires  a  different  result. 

The  foregoing  reveals  the  fundamental  incoherence  of  the 
Court's  Eleventh  Amendment  jurisprudence.      Before  the 
Court  can  develop  a  coherent  Eleventh  Amendment  doctrine, 
I  believe  that  it  must  reassess  a  long  line  of  our  precedents, 
beginning  with  Hans  v.  Louisiana,  134  U.  S.  1  (1890),  and 
culminating  in  today's  decision,  that  have  perpetuated  an 
erroneous  interpretation  of  the  Eleventh  Amendment.     As 
I  demonstrated  in  Atascadero,  supra,  the  Court's  constitu- 
tional doctrine  of  the  sovereign  immunity  of  States  rests  on  a 
mistaken  historical  premise.     Because  I  treated  the  subject 
exhaustively  in  that  case,  I  will  only  restate  my  conclusions 
here.     Recent  scholarship  indicates  that  the  Framers  never 
intended  to  constitutionalize  the  doctrine  of  state  sovereign 
immunity;  consequently  the  Eleventh  Amendment  was  not 
an  effort  to  reestablish,  after  Chisholm  v.  Georgia,  2  Dall. 
419  (1793),  a  limitation  on  federal  judicial  power  contained 
in  Article  III.      Nor,  given  the  limited  terms  and  context 
in  which  the  Eleventh  Amendment  was  drafted,  could  the 
Amendment's  narrow  and  technical  language  be  understood 
to  have  instituted  a  broad  new  limitation  on  the  federal  judi- 
cial power  in  cases  "arising  under"  federal  law  whenever  an 
individual  attempts  to  sue  a  State.     Atascadero,  473  U.  S. ,  at 
258-259.     Rather,  as  the  historical  records  and  the  language 
of  the  Constitution  reveal,  the  Amendment  was  intended 
simply  to  remove  federal-court  jurisdiction  over  suits  against 
a  State  where  the  basis  for  jurisdiction  was  that  the  plaintiff 
was  a  citizen  of  another  State  or  an  alien— suits  which  result 
in  the  abrogation  of  the  state  law  of  sovereign  immunity  in 
state-law  causes  of  action.     Id. ,  at  259-280. 


GREEN  DL  MANSOUR  79 

64  MARSHALL,  J.,  dissenting 

Because  the  disputes  in  the  instant  case  are  between  citi- 
zens and  their  own  State  and  because  a  federal  question  is  the 
source  of  federal-court  jurisdiction,  the  Eleventh  Amend- 
ment, properly  construed,  is  no  bar  to  petitioners'  suits. 

I  respectfully  dissent. 

JUSTICE  MARSHALL,  with  whom  JUSTICE  BRENNAN  and 
JUSTICE  STEVENS  join,  dissenting. 

I  concur  in  JUSTICE  BRENNAN'S  and  JUSTICE  BLACKMUN'S 
dissents.  I  contribute  to  this  proliferation  of  opinions  only  to 
add  a  few  words  as  to  why,  even  under  the  view  of  the  Elev- 
enth Amendment  accepted  by  the  majority  in  Atascadero 
State  Hospital  v.  Scanlon,  473  U.  S.  234  (1985),  the  major- 
ity reaches  an  incorrect  result  in  this  case. 


JUSTICE  BRENNAN'S  opinion  cogently  explains  how  the 
decision  of  the  majority  today  repudiates  Quern  v.  Jordan, 
440  U.  S.  332  (1979).  The  Court  in  that  case  did  not  approve 
notice  relief  as  a  "mere  case-management  device,"  ante, 
at  71,  nor  does  the  majority  suggest  how  informing  class 
members  of  state  administrative  procedures  serves  a  case- 
management  function  in  federal-court  litigation.  Rather, 
the  Quern  Court,  explicitly  posing  the  question  whether  "the 
modified  notice  contemplated  by  the  Seventh  Circuit  consti- 
tute[s]  permissible  prospective  relief  or  a  'retroactive  award 
which  requires  the  payment  of  funds  from  the  state  treas- 
ury,'" concluded  that  "this  relief  falls  on  the  Ex  parte  Young 
side  of  the  Eleventh  Amendment  line  rather  than  on  the 
Edelman  side."  Quern,  supra,  at  346-347. 

II 

In  abandoning  the  result  it  reached  six  years  ago,  the 
majority  misapplies  its  own  Eleventh  Amendment  jurispru- 
dence. The  majority  states  that  there  are  two  kinds  of  rem- 
edies that  can  be  sought  against  a  state  officer:  prospective 
relief  "designed  to  end  a  continuing  violation  of  federal  law," 


80  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

and  retrospective  relief  serving  mere  "compensatory  or  de- 
terrence interests."  Ante,  at  68.  Only  in  the  former  class 
of  relief,  it  concludes,  do  the  federal  interests  involved  out- 
weigh the  Eleventh  Amendment  interests  implicated  by  a 
suit  against  a  state  officer  in  his  official  capacity.*  "Pro- 
spective" and  "retrospective"  labels,  however,  should  be  ir- 
relevant to  analysis  of  this  case.  The  notice  relief  at  issue 
here  imposes  no  significant  costs  on  the  State,  creates  no 
direct  liabilities  against  the  State,  and  respects  the  institu- 
tions of  state  government.  See  Quern,  supra,  at  347—348. 
This  Court  has  never  held  that  the  Eleventh  Amendment 
poses  any  bar  to  such  relief.  Indeed,  notice  of  the  availabil- 
ity of  possible  relief  through  existing  state  administrative 
remedies,  where  the  state  agency  and  state  courts  would  be 
the  sole  arbiters  of  what  relief  would  be  granted,  assists  in 
the  vindication  of  state  law  by  informing  class  members  that 
they  may  have  causes  of  action  under  that  law.  In  the  Elev- 
enth Amendment  balance  set  up  by  the  majority  opinion,  it  is 
thus  hard  to  see  what  weight,  if  any,  exists  on  the  State's 
side  of  the  scale,  and  why  that  weight  should  overcome  the 
interest  in  vindicating  federal  law. 


*The  distinction  is  hardly  so  neat  as  the  majority  implies.  The  major- 
ity cites  Milliken  v.  Bradley ,  433  U.  S.  267  (1977),  as  exemplifying  per- 
missible injunctive  relief.  Ante,  at  68.  That  case  involved  a  continuing 
federal  duty  to  remedy  the  effects  of  past  de  jure  segregation;  the  Court 
upheld  against  Eleventh  Amendment  attack  an  order  that  state  officials 
pay  costs  attributable  to  a  program  "designed  ...  to  restore  the  schoolchil- 
dren of  Detroit  to  the  position  they  would  have  enjoyed  absent  constitu- 
tional violations  by  state  and  local  officials,"  433  U.  S. ,  at  281,  characteriz- 
ing the  relief  both  as  "prospectiv[e]"  and  as  "compensatory,"  id. ,  at  290. 
Yet  petitioners  here  note  that  Congress  has  imposed  on  state  agencies  a 
continuing  federal  duty  to  "take  all  necessary  steps  to  correct  any  .  .  .  un- 
derpayment of  aid  under  the  State  plan."  42  U.  S.  C.  §  602(a)(22);  see  also 
45  CFR  §205.10(a)  (1984).  The  relief  in  this  case  too  might  therefore  be 
described  as  related  to  a  continuing  federal  duty,  "part  of  a  plan  that  oper- 
ates prospectively  to  bring  about  the  delayed  benefits  of  a  [constitutionally 
administered  program]."  Milliken,  supra,  at  290  (emphasis  in  original). 


GREEN"  u  MANSOTJR  81 

64  BLACKMUN,  J.,  dissenting 

I  would  hold  that  whether  the  Eleventh  Amendment  was 
intended  simply  to  provide  that  a  State  cannot  be  sued  in  fed- 
eral court  where  the  basis  of  jurisdiction  is  that  the  plaintiff  is 
a  citizen  of  another  State  or  an  alien  (as  I  believe),  or  was 
intended  to  constitutionalize  a  much  broader  principle  of 
state  sovereign  immunity  (as  the  majority  believes),  there  is 
simply  nothing  offensive  to  that  Amendment  in  an  order  that 
the  State  notify  class  members  of  the  possibility  that  they 
may  be  entitled  to  relief  through  the  state  administrative 
process.  Because  that  order  neither  imposes  significant 
costs  on  the  State  nor  creates  any  direct  liabilities  against  it, 
the  Quern  Court  properly  placed  it  "on  the  Ex  parte  Young 
side  of  the  Eleventh  Amendment  line."  440  U.  S.,  at  347. 

JUSTICE  BLACKMUN,  with  whom  JUSTICE  BRENNAN, 
JUSTICE  MARSHALL,  and  JUSTICE  STEVENS  join,  dissenting. 

I  joined  JUSTICE  BRENNAN' s  dissent  in  Atascadero  State 
Hospital  v.  Scanlon,  473  U.  S.  234,  247  (1985),  and  I  join 
his  dissent  in  this  case.  I  fully  agree  that  the  Court's 
Eleventh  Amendment  approach,  as  demonstrated  by  the  dif- 
ference between  the  result  in  this  case  and  that  in  Quern 
v.  Jordan,  440  U.  S.  332  (1979),  is  sterile,  produces  incon- 
sistent decisions,  and  is  in  serious  need  of  reconsideration. 
Cf.  Garcia  v.  San  Antonio  Metropolitan  Transit  Authority, 
469  U.  S.  528,  539,  546-547  (1985). 

But  I  also  would  reverse  the  judgment  of  the  Court  of 
Appeals  in  this  case  for  the  additional  reason  expressed  in 
rny  dissent  (joined  by  JUSTICES  BRENNAN,  MARSHALL,  and 
STEVENS)  in  Atascadero,  473  U.  S.,  at  302,  namely,  the 
waiver  by  Michigan,  "as  a  willing  recipient  of  federal  ftmds," 
id.,  at  304,  of  any  Eleventh  Amendment  barrier  that  other- 
wise might  exist.  The  State  too  easily  avoids  its  responsi- 
bilities, and  the  Court  by  its  decision  today  allows  the  State 
to  go  its  way  unimpeded  and  unburdened  with  any  remedy 
for  those  who  have  been  wronged  during  the  period  of  Michi- 
gan's noncompliance  with  federal  law. 


82  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

HEATH  v.  ALABAMA 

CERTIORARI  TO  THE  SUPREME  COURT  OF  ALABAMA 
No.  84-5555.     Argued  October  9,  1985— Decided  December  3,  1985 

Petitioner  hired  two  men  to  kill  his  wife.  In  accordance  with  petitioner's 
plan,  the  men  kidnaped  petitioner's  wife  from  her  home  in  Alabama. 
Her  body  was  later  found  on  the  side  of  a  road  in  Georgia.  Petitioner 
pleaded  guilty  to  "malice"  murder  in  a  Georgia  trial  court  in  exchange  for 
a  sentence  of  life  imprisonment.  Subsequently,  he  was  tried  and  con- 
victed of  murder  during  a  kidnaping  and  was  sentenced  to  death  in  an 
Alabama  trial  court,  which  rejected  his  claim  of  double  jeopardy.  The 
Alabama  Court  of  Criminal  Appeals  and  the  Alabama  Supreme  Court 
affirmed  the  conviction. 

Held: 

1.  This  Court  will  not  decide  whether  the  Alabama  trial  court  had 
jurisdiction,  where  petitioner  did  not  claim  lack  of  jurisdiction  in  his 
petition  to  the  Alabama  Supreme  Court  but  raised  the  claim  for  the 
first  time  in  his  petition  to  this  Court.     P.  87. 

2.  Under  the  dual  sovereignty  doctrine,  successive  prosecutions  by 
two  States  for  the  same  conduct  are  not  barred  by  the  Double  Jeopardy 
Clause  of  the  Fifth  Amendment,  and,  hence,  Alabama  was  not  barred 
from  trying  petitioner.     Pp.  87-93. 

(a)  The  dual  sovereignty  doctrine  provides  that  when  a  defendant  in 
a  single  act  violates  the  "peace  and  dignity"  of  two  sovereigns  by  break- 
ing the  laws  of  each,  he  has  committed  two  distinct  "offences"  for  double 
jeopardy  purposes.  In  applying  the  doctrine,  the  crucial  determination 
is  whether  the  two  entities  that  seek  successively  to  prosecute  a  defend- 
ant for  the  same  course  of  conduct  can  be  termed  separate  sovereigns. 
This  determination  turns  on  whether  the  prosecuting  entities'  powers  to 
undertake  criminal  prosecutions  derive  from  separate  and  independent 
sources.  It  has  been  uniformly  held  that  the  States  are  separate  sover- 
eigns with  respect  to  the  Federal  Government  because  each  State's 
power  to  prosecute  derives  from  its  inherent  sovereignty,  preserved  to 
it  by  the  Tenth  Amendment,  and  not  from  the  Federal  Government. 
Given  the  distinct  sources  of  their  powers  to  try  a  defendant,  the  States 
are  no  less  sovereign  with  respect  to  each  other  than  they  are  with 
respect  to  the  Federal  Government.  Pp.  87-91. 

(b)  The  application  of  the  dual  sovereignty  principle  cannot  be  re- 
stricted to  cases  in  which  two  prosecuting  sovereigns  can  demonstrate 
that  allowing  only  one  sovereign  to  exercise  jurisdiction  over  the  defend- 


HEATH  u  ALABAMA  83 

82  Opinion  of  the  Court 

ant  will  interfere  with  the  second  sovereign's  un vindicated  "interests." 
If  the  prosecuting  entities  are  separate  sovereigns,  the  circumstances  of 
the  case  and  the  specific  "interests"  of  each  are  irrelevant.  Pp.  91-92. 
(c)  The  suggestion  that  the  dual  sovereignty  doctrine  be  overruled 
and  replaced  with  a  balancing  of  interests  approach  is  rejected.  The 
Court's  rationale  for  the  doctrine  is  not  a  fiction  that  can  be  disregarded 
in  difficult  cases;  it  finds  weighty  support  in  the  historical  understanding 
and  political  realities  of  the  States'  role  in  the  federal  system  and  in  the 
Double  Jeopardy  Clause  itself.  Pp.  92-93. 
455  So.  2d  905,  affirmed. 

O'CONNOR,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER, 
C.  J.,  and  WHITE,  BLACKMUN,  POWELL,  REHNQUIST,  and  STEVENS,  JJ., 
joined.  BRENNAN,  J.,  filed  a  dissenting  opinion,  in  which  MARSHALL, 
J.,  joined,  post,  p.  94.  MARSHALL,  J.,  filed  a  dissenting  opinion,  in  which 
BRENNAN,  J.,  joined,  post,  p.  95. 

Ronald  J.  Allen  argued  the  cause  and  filed  briefs  for 
petitioner. 

William  D.  Little,  Assistant  Attorney  General  of  Alabama, 
argued  the  cause  for  respondent.  With  him  on  the  brief  was 
Charles  A.  Graddick,  Attorney  General. 

JUSTICE  O'CONNOR  delivered  the  opinion  of  the  Court. 

The  question  before  the  Court  is  whether  the  Double  Jeop- 
ardy Clause  of  the  Fifth  Amendment  bars  Alabama  from 
trying  petitioner  for  the  capital  offense  of  murder  during  a 
kidnaping  after  Georgia  has  convicted  him  of  murder  based 
on  the  same  homicide.  In  particular,  this  case  presents  the 
issue  of  the  applicability  of  the  dual  sovereignty  doctrine  to 
successive  prosecutions  by  two  States. 


In  August  1981,  petitioner,  Larry  Gene  Heath,  hired 
Charles  Owens  and  Gregory  Lumpkin  to  kill  his  wife,  Re- 
becca Heath,  who  was  then  nine  months  pregnant,  for  a  sum 
of  $2 , 000 .  On  the  morning  of  August  3 1 ,  198 1 ,  petitioner  left 
the  Heath  residence  in  Russell  County,  Alabama,  to  meet 
with  Owens  and  Lumpkin  in  Georgia,  just  over  the  Alabama 


84  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

border  from  the  Heath  home.  Petitioner  led  them  back  to 
the  Heath  residence,  gave  them  the  keys  to  the  Heaths'  car 
and  house,  and  left  the  premises  in  his  girlfriend's  truck. 
Owens  and  Lumpkin  then  kidnaped  Rebecca  Heath  from  her 
home.  The  Heath  car,  with  Rebecca  Heath's  body  inside, 
was  later  found  on  the  side  of  a  road  in  Troup  County,  Geor- 
gia. The  cause  of  death  was  a  gunshot  wound  in  the  head. 
The  estimated  time  of  death  and  the  distance  from  the  Heath 
residence  to  the  spot  where  Rebecca  Heath's  body  was  found 
are  consistent  with  the  theory  that  the  murder  took  place  in 
Georgia,  and  respondent  does  not  contend  otherwise. 

Georgia  and  Alabama  authorities  pursued  dual  investiga- 
tions in  which  they  cooperated  to  some  extent.  On  Septem- 
ber 4,  1981,  petitioner  was  arrested  by  Georgia  authorities. 
Petitioner  waived  his  Miranda  rights  and  gave  a  full  con- 
fession admitting  that  he  had  arranged  his  wife's  kidnaping 
and  murder.  In  November  1981,  the  grand  jury  of  Troup 
County,  Georgia,  indicted  petitioner  for  the  offense  of  "mal- 
ice" murder  under  Ga.  Code  Ann.  §  16-5-1  (1984). l  Georgia 
then  served  petitioner  with  notice  of  its  intention  to  seek  the 
death  penalty,  citing  as  the  aggravating  circumstance  the 
fact  that  the  murder  was  "caused  and  directed"  by  petitioner. 
Record  742.  See  Ga.  Code  Ann.  §  17-10-30(b)(6)  (1982). 
On  February  10,  1982,  petitioner  pleaded  guilty  to  the  Geor- 
gia murder  charge  in  exchange  for  a  sentence  of  life  imprison- 
ment, which  he  understood  could  involve  his  serving  as  few 
as  seven  years  in  prison.  See  Record  495. 

On  May  5,  1982,  the  grand  jury  of  Russell  County,  Ala- 
bama, returned  an  indictment  against  petitioner  for  the  capi- 

1  The  indictment  read  as  follows: 

"[The  grand  jurors]  in  the  name  and  on  behalf  of  the  citizens  of  Georgia, 
charge  and  accuse  LARRY  GENE  HEATH  [et  al.]  with  the  offense  of 
MURDER  (26-1101);  for  that  the  said  LARRY  GENE  HEATH  [et  al.]  on 
the  date  of  August  31,  1981,  in  the  county  aforesaid,  did  then  and  there 
unlawfully  and  with  malice  aforethought  cause  the  death  of  Rebecca 
McGuire  Heath,  a  human  being,  by  shooting  her  with  a  gun,  a  deadly 
weapon."  Record  740. 


HEATH  u  ALABAMA  85 

82  Opinion  of  the  Court 

tal  offense  of  murder  during  a  kidnaping.2  See  Ala.  Code 
§  13A-5-40(a)(l)  (1982).  Before  trial  on  this  indictment, 
petitioner  entered  pleas  of  autrefois  convict  and  former  jeop- 
ardy under  the  Alabama  and  United  States  Constitutions,  ar- 
guing that  his  conviction  and  sentence  in  Georgia  barred  his 
prosecution  in  Alabama  for  the  same  conduct.  Petitioner 
also  entered  a  plea  contesting  the  jurisdiction  of  the  Alabama 
court  on  the  ground  that  the  crime  had  occurred  in  Georgia. 

After  a  hearing,  the  trial  court  rejected  petitioner's  double 
jeopardy  claims.  It  assumed,  arguendo,  that  the  two  pros- 
ecutions could  not  have  been  brought  in  succession  by  one 
State  but  held  that  double  jeopardy  did  not  bar  successive 
prosecutions  by  two  different  States  for  the  same  act.  See 
Record  776.  The  court  postponed  a  ruling  on  petitioner's 
plea  to  jurisdiction  until  the  close  of  the  State's  case  in  chief. 
See  id.,  at  778. 

At  the  close  of  the  State's  case,  petitioner  argued  that  Ala- 
bama did  not  have  jurisdiction  under  state  law  because  there 
had  been  no  evidence  of  kidnaping  and  all  the  evidence 
showed  that  Rebecca  Heath  was  killed  in  Georgia.  The 
State  responded  that  a  kidnaping  had  been  proved,  and  that 
under  Ala.  Code  §  15—2-3  (1982),  if  a  crime  commences  in  Ala- 
bama it  may  be  punished  in  Alabama  regardless  of  where  the 
crime  is  consummated.  The  court  rejected  both  petitioner's 
jurisdictional  plea  and  his  renewed  double  jeopardy  claims. 
See  Record  590. 

On  January  12,  1983,  the  Alabama  jury  convicted  peti- 
tioner of  murder  during  a  kidnaping  in  the  first  degree. 
After  a  sentencing  hearing,  the  jury  recommended  the  death 


2  The  indictment  stated: 

"Larry  Gene  Heath  did  intentionally  cause  the  death  of  Rebecca  Heath, 
by  shooting  her  with  a  gun,  and  Larry  Gene  Heath  caused  said  death 
during  Larry  Gene  Heath's  abduction  of,  or  attempt  to  abduct,  Rebecca 
Heath  with  intent  to  inflict  physical  injury  upon  her,  in  violation  of 
§  13A-5-40(a)(l)  of  the  Code  of  Alabama  1975,  as  amended,  against  the 
peace  and  dignity  of  the  State  of  Alabama."  Id.,  at  728. 


86  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

penalty.  Pursuant  to  Alabama  law,  a  second  sentencing 
hearing  was  held  before  the  trial  judge.  The  judge  accepted 
the  jury's  recommendation,  finding  that  the  sole  aggravating 
factor,  that  the  capital  offense  was  "committed  while  the  de- 
fendant was  engaged  in  the  commission  of  a  kidnapping/'  out- 
weighed the  sole  mitigating  factor,  that  the  "defendant  was 
convicted  of  the  murder  of  Rebecca  Heath  in  the  Superior 
Court  of  Troup  County,  Georgia,  .  .  .  and  received  a  sentence 
of  life  imprisonment  in  that  court."  Id.,  at  718-720.  See 
Ala.  Code  §§  13A-5-49(4),  13A-5-50  (1982). 

On  appeal,  the  Alabama  Court  of  Criminal  Appeals  re- 
jected petitioner's  pleas  of  autrefois  convict  and  former  jeop- 
ardy under  the  Alabama  and  United  States  Constitutions  and 
affirmed  his  conviction.  455  So.  2d  898  (1983).  Petitioner 
then  filed  a  petition  for  writ  of  certiorari  with  the  Alabama 
Supreme  Court,  stating  the  sole  issue  to  be  "whether  or  not 
the  prosecution  in  the  State  of  Alabama  constituted  double 
jeopardy  in  violation  of  the  5th  Amendment  of  the  United 
States  Constitution."  App.  92.  The  court  granted  his  peti- 
tion, and  unanimously  affirmed  his  conviction.  Ex  parte 
Heath,  455  So.  2d  905  (1984). 

The  Alabama  Supreme  Court  noted  that  "[p]rosecutions 
under  the  laws  of  separate  sovereigns  do  not  improperly  sub- 
ject an  accused  twice  to  prosecutions  for  the  same  offense," 
citing  this  Court's  cases  applying  the  dual  sovereignty  doc- 
trine. Id.,  at  906.  The  court  acknowledged  that  this  Court 
has  not  considered  the  applicability  of  the  dual  sovereignty 
doctrine  to  successive  prosecutions  by  different  States.  It 
reasoned,  however,  that  "[i]f,  for  double  jeopardy  purposes, 
Alabama  is  considered  to  be  a  sovereign  entity  vis-£-vis  the 
federal  government  then  surely  it  is  a  sovereign  entity  vis-a- 
vis the  State  of  Georgia."  Ibid. 

Petitioner  sought  a  writ  of  certiorari  from  this  Court,  rais- 
ing double  jeopardy  claims  and  claims  based  on  Alabama's 
exercise  of  jurisdiction.  No  due  process  objections  were 
asserted.  We  granted  certiorari  limited  to  the  question 


HEATH  v.  ALABAMA  87 

82  Opinion  of  the  Court 

whether  petitioner's  Alabama  conviction  was  barred  by  this 
Court's  decision  in  Brown  v.  Ohio,  432  U.  S.  161  (1977),  and 
requested  the  parties  to  address  the  question  of  the  appli- 
cability of  the  dual  sovereignty  doctrine  to  successive  pros- 
ecutions by  two  States.  470  U.  S.  1026  (1985).  For  the 
reasons  explained  below,  we  affirm  the  judgment  of  the  Ala- 
bama Supreme  Court. 

Despite  the  fact  that  this  Court  did  not  grant  certiorari  on 
the  constitutional  objection  to  Alabama's  exercise  of  jurisdic- 
tion, petitioner  has  continued  to  argue  in  this  Court  his  juris- 
dictional  claim.  See  Tr.  of  Oral  Arg.  11-22,  29-31;  Brief  for 
Petitioner  15.  We  decline  to  decide  the  issue  because  peti- 
tioner did  not  claim  lack  of  jurisdiction  in  his  petition  to  the 
Alabama  Supreme  Court  and  he  raised  the  claim  for  the  ftrst 
time  in  his  petition  to  this  Court.  Pet.  for  Cert,  4.  Even  if 
we  were  not  jurisdictionally  barred  from  considering  claims 
not  pressed  or  passed  upon  in  the  state  court,  as  has  some- 
times been  stated,  see,  e.  g.,  State  Farm  Mutual  Automobile 
Ins.  Co.  v.  Duel,  324  U.  S.  154,  160  (1945);  Crowell  v. 
Randell,  10  Pet.  368,  392  (1836),  the  longstanding  rule  that 
this  Court  will  not  consider  such  claims  creates,  at  the  least, 
a  weighty  presumption  against  review.  See,  e.  g. ,  Illinois 
v.  Gates,  462  U.  S.  213,  218-222  (1983). 

II 

Successive  prosecutions  are  barred  by  the  Fifth  Amend- 
ment only  if  the  two  offenses  for  which  the  defendant  is  pros- 
ecuted are  the  "same"  for  double  jeopardy  purposes.  Re- 
spondent does  not  contravene  petitioner's  contention  that  the 
offenses  of  "rnurder  during  a  kidnaping-"  and  "malice  mur- 
der,'* as  construed  by  the  courts  of  Alabama  and  Georgia 
respectively,  may  be  considered  greater  and  lesser  offenses 
and,  thus,  the  "same"  offense  under  Brown  v.  Ofr/o,  supra , 
absent  operation  of  the  dual  sovereignty  principle.  See  id., 
at  169;  Illinois  v.  Vitale,  447  U.  S.  410  (1980).  We  there- 
fore assume,  arguendo,  that,  had  these  offenses  arisen  under 


88  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

the  laws  of  one  State  and  had  petitioner  been  separately 
prosecuted  for  both  offenses  in  that  State,  the  second  convic- 
tion would  have  been  barred  by  the  Double  Jeopardy  Clause. 
The  sole  remaining  question  upon  which  we  granted  certio- 
rari  is  whether  the  dual  sovereignty  doctrine  permits  succes- 
sive prosecutions  under  the  laws  of  different  States  which 
otherwise  would  be  held  to  "subject  [the  defendant]  for  the 
same  offence  to  be  twice  put  in  jeopardy."  U.  S.  Const., 
Amdt.  5.  Although  we  have  not  previously  so  held,  we  be- 
lieve the  answer  to  this  query  is  inescapable.  The  dual  sov- 
ereignty doctrine,  as  originally  articulated  and  consistently 
applied  by  this  Court,  compels  the  conclusion  that  successive 
prosecutions  by  two  States  for  the  same  conduct  are  not 
barred  by  the  Double  Jeopardy  Clause. 

The  dual  sovereignty  doctrine  is  founded  on  the  common- 
law  conception  of  crime  as  an  offense  against  the  sovereignty 
of  the  government.  When  a  defendant  in  a  single  act  vio- 
lates the  "peace  and  dignity"  of  two  sovereigns  by  breaking 
the  laws  of  each,  he  has  committed  two  distinct  "offences." 
United  States  v.  Lanza,  260  U.  S.  377,  382  (1922).  As  the 
Court  explained  in  Moore  v.  Illinois,  14  How.  13,  19  (1852), 
"[a]n  offence,  in  its  legal  signification,  means  the  transgres- 
sion of  a  law."  Consequently,  when  the  same  act  trans- 
gresses the  laws  of  two  sovereigns,  "it  cannot  be  truly 
averred  that  the  offender  has  been  twice  punished  for*  the 
same  offence;  but  only  that  by  one  act  he  has  committed  two 
offences,  for  each  of  which  he  is  justly  punishable."  Id., 
at  20. 

In  applying  the  dual  sovereignty  doctrine,  then,  the  crucial 
determination  is  whether  the  two  entities  that  seek  succes- 
sively to  prosecute  a  defendant  for  the  same  course  of  con- 
duct can  be  termed  separate  sovereigns.  This  determination 
turns  on  whether  the  two  entities  draw  their  authority  to 
punish  the  offender  from  distinct  sources  of  power.  See, 
e.  g.,  United  States  v.  Wheeler,  435  U.  S.  313,  320  (1978); 
Waller  v.  Florida,  397  U.  S.  387,  393  (1970);  Puerto  Eico  ^ 


HEATH  v.  ALABAMA  89 

82  Opinion  of  the  Court 

Shell  Co.,  302  U.  S.  253,  264-265  (1937);  Lanza,  supra,  at 
382;  Grafton  v.  United  States,  206  U.  S.  333,  354-355  (1907). 
Thus,  the  Court  has  uniformly  held  that  the  States  are  sepa- 
rate sovereigns  with  respect  to  the  Federal  Government  be- 
cause each  State's  power  to  prosecute  is  derived  from  its  own 
"inherent  sovereignty,"  not  from  the  Federal  Government. 
Wheeler,  supra,  at  320,  n.  14.  See  Abbate  v.  United  States, 
359  U.  S.  187,  193-194  (1959)  (collecting  cases);  Lanza, 
supra.  As  stated  in  Lanza,  supra,  at  382: 

"Each  government  in  determining  what  shall  be  an  of- 
fense against  its  peace  and  dignity  is  exercising  its  own 
sovereignty,  not  that  of  the  other. 

"It  follows  that  an  act  denounced  as  a  crime  by  both 
national  and  state  sovereignties  is  an  offense  against  the 
peace  and  dignity  of  both  and  may  be  punished  by  each. " 

See  also  Bartkus  v.  Illinois,  359  U.  S.  121  (1959);  Westfall  v. 
United  States,  274  U.  S.  256,  258  (1927)  (Holmes,  J.)  (the 
proposition  that  the  State  and  Federal  Governments  may 
punish  the  same  conduct  "is  too  plain  to  need  more  than 
statement"). 

The  States  are  no  less  sovereign  with  respect  to  each  other 
than  they  are  with  respect  to  the  Federal  Government. 
Their  powers  to  undertake  criminal  prosecutions  derive  from 
separate  and  independent  sources  of  power  and  authority 
originally  belonging  to  them  before  admission  to  the  Union 
and  preserved  to  them  by  the  Tenth  Amendment.  See 
Lanza,  supra,  at  382.  The  States  are  equal  to  each  other  "in 
power,  dignity  and  authority,  each  competent  to  exert  that 
residuum  of  sovereignty  not  delegated  to  the  United  States 
by  the  Constitution  itself."  Coyle  v.  Oklahoma,  221  U.  S. 
559,  567  (1911).  See  Skiriotes  v.  Florida,  313  U.  S.  69,  77 
(1941).  Thus,  "[e]ach  has  the  power,  inherent  in  any  sover- 
eign, independently  to  determine  what  shall  be  an  offense 
against  its  authority  and  to  punish  such  offenses,  and  in  doing 
so  each  'is  exercising  its  own  sovereignty,  not  that  of  the 


90  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

other.'"      Wheeler,  supra,  at  320  (quoting  Lanza,   supra, 
at  382). 

The  cases  in  which  the  Court  has  applied  the  dual  sover- 
eignty principle  outside  the  realm  of  successive  federal  and 
state  prosecutions  illustrate  the  soundness  of  this  analysis. 
United  States  v.  Wheeler,  supra,  is  particularly  instructive 
because  there  the  Court  expressly  refused  to  find  that  only 
the  State  and  Federal  Governments  could  be  considered  dis- 
tinct sovereigns  with  respect  to  each  other  for  double  jeop- 
ardy purposes,  stating  that  "so  restrictive  a  view  of  [the  dual 
sovereignty]  concept .  .  .  would  require  disregard  of  the  very 
words  of  the  Double  Jeopardy  Clause."  Id.,  at  330.  In- 
stead, the  Wheeler  Court  reiterated  the  principle  that  the 
sovereignty  of  two  prosecuting  entities  for  these  purposes  is 
determined  by  "the  ultimate  source  of  the  power  under  which 
the  respective  prosecutions  were  undertaken."  Id.,  at  320. 
On  the  basis  of  this  reasoning,  the  Court  held  that  the  Navajo 
Tribe,  whose  power  to  prosecute  its  members  for  tribal  of- 
fenses is  derived  from  the  Tribe's  "primeval  sovereignty" 
rather  than  a  delegation  of  federal  authority,  is  an  independ- 
ent sovereign  from  the  Federal  Government  for  purposes  of 
the  dual  sovereignty  doctrine.  Id. ,  at  328. 

In  those  instances  where  the  Court  has  found  the  dual 
sovereignty  doctrine  inapplicable,  it  has  done  so  because 
the  two  prosecuting  entities  did  not  derive  their  powers 
to  prosecute  from  independent  sources  of  authority.  Thus, 
the  Court  has  held  that  successive  prosecutions  by  federal 
and  territorial  courts  are  barred  because  such  courts  are 
"creations  emanating  from  the  same  sovereignty."  Puerto 
Rico,  302  U.  S.,  at  264.  See  id.,  at  264-266.  See  also 
Grafton,  supra  (the  Philippine  Islands).  Similarly,  munici- 
palities that  derive  their  power  to  try  a  defendant  from  the 
same  organic  law  that  empowers  the  State  to  prosecute  are 
not  separate  sovereigns  with  respect  to  the  State.  See, 
e.  g.,  Waller,  supra.  These  cases  confirm  that  it  is  the 
presence  of  independent  sovereign  authority  to  prosecute, 
not  the  relation  between  States  and  the  Federal  Gov- 


HEATH  v.  ALABAMA  91 

82  Opinion  of  the  Court 

eminent  in  our  federalist  system,  that  constitutes  the  basis 
for  the  dual  sovereignty  doctrine. 

Petitioner  argues  that  Nielsen  v.  Oregon,  212  U.  S.  315 
(1909),  indicates,  albeit  in  dicta,  that  where  States  have  con- 
current jurisdiction  over  a  criminal  offense,  the  first  State  to 
prosecute  thereby  bars  prosecution  by  any  other  State.  We 
find  that  Nielsen  is  limited  to  its  unusual  facts  and  has  con- 
tinuing relevance,  if  at  all,  only  to  questions  of  jurisdiction 
between  two  entities  deriving  their  concurrent  jurisdiction 
from  a  single  source  of  authority.  In  Nielsen,  the  Court  set 
aside  a  conviction  obtained  by  the  State  of  Oregon  against  a 
resident  of  the  State  of  Washington  for  his  operation  of  a 
purse  net  for  fish  in  the  Columbia  River  pursuant  to  a  valid 
license  to  do  so  from  the  State  of  Washington.  The  Court 
noted: 

"By  the  legislation  of  Congress  the  Columbia  River  is 
made  the  common  boundary  between  Oregon  and  Wash- 
ington, and  to  each  of  those  States  is  given  concurrent 
jurisdiction  on  the  waters  of  that  river."  Id.,  at  319. 
"[T]he  grant  of  concurrent  jurisdiction  may  bring  up 
from  time  to  time  .  .  .  some  curious  and  difficult  ques- 
tions, so  we  properly  confine  ourselves  to  the  precise 
question  presented.  ...  It  is  enough  to  decide,  as  we  do, 
that  for  an  act  done  within  the  territorial  limits  of  the 
State  of  Washington  under  authority  and  license  from 
that  State  one  cannot  be  prosecuted  and  punished  by  the 
State  of  Oregon."  Id.,  at  320-321. 

It  is  obvious  that  the  Nielsen  Court  did  not  attempt  to  decide 
or  even  to  consider  the  double  jeopardy  effect  of  successive 
state  prosecutions  for  offenses  proscribed  by  both  States;  the 
case,  therefore,  has  no  bearing  on  the  issue  of  the  applicabil- 
ity of  the  dual  sovereignty  doctrine  presented  in  this  case. 

Ill 

Petitioner  invites  us  to  restrict  the  applicability  of  the  dual 
sovereignty  principle  to  cases  in  which  two  governmental 


92  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

entities,  having  concurrent  jurisdiction  and  pursuing  quite 
different  interests,  can  demonstrate  that  allowing  only  one 
entity  to  exercise  jurisdiction  over  the  defendant  will  inter- 
fere with  the  unvindicated  interests  of  the  second  entity  and 
that  multiple  prosecutions  therefore  are  necessary  for  the 
satisfaction  of  the  legitimate  interests  of  both  entities.  This 
balancing  of  interests  approach,  however,  cannot  be  recon- 
ciled with  the  dual  sovereignty  principle.  This  Court  has 
plainly  and  repeatedly  stated  that  two  identical  offenses  are 
not  the  "same  offence"  within  the  meaning  of  the  Double 
Jeopardy  Clause  if  they  are  prosecuted  by  different  sover- 
eigns. See,  e.  g.,  United  States  v.  Lanza,  260  U.  S.  377 
(1922)  (same  conduct,  indistinguishable  statutes,  same  "inter- 
ests"). If  the  States  are  separate  sovereigns,  as  they  must 
be  under  the  definition  of  sovereignty  which  the  Court  con- 
sistently has  employed,  the  circumstances  of  the  case  are 
irrelevant. 

Petitioner,  then,  is  asking  the  Court  to  discard  its  sover- 
eignty analysis  and  to  substitute  in  its  stead  his  difficult  and 
uncertain  balancing  of  interests  approach.  The  Court  has 
refused  a  similar  request  on  at  least  one  previous  occasion, 
see  Abbate  v.  United  States,  359  U.  S.  187  (1959);  id.,  at  196 
(BRENNAN,  J.,  separate  opinion),  and  rightfully  so.  The 
Court's  express  rationale  for  the  dual  sovereignty  doctrine  is 
not  simply  a  fiction  that  can  be  disregarded  in  difficult  cases. 
It  finds  weighty  support  in  the  historical  understanding  and 
political  realities  of  the  States'  role  in  the  federal  system  and 
in  the  words  of  the  Double  Jeopardy  Clause  itself,  "nor  shall 
any  person  be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb."  U.  S.  Const.,  Amdt.  5  (emphasis 
added).  See  Wheeler,  435  U.  S.,  at  330. 

It  is  axiomatic  that  "[i]n  America,  the  powers  of  sover- 
eignty are  divided  between  the  government  of  the  Union, 
and  those  of  the  States.  They  are  each  sovereign,  with 
respect  to  the  objects  committed  to  it,  and  neither  sover- 
eign with  respect  to  the  objects  committed  to  the  other." 


HEATH  v.  ALABAMA  93 

82  Opinion  of  the  Court 

McCulloch  v.  Maryland,  4  Wheat.  316,  410  (1819).  It  is  as 
well  established  that  the  States,  "as  political  communities, 
[are]  distinct  and  sovereign,  and  consequently  foreign  to  each 
other."  Bank  of  United  States  v.  Daniel,  12  Pet.  32,  54 
(1838).  See  also  Skiriotes  v.  Florida,  313  U.  S.,  at  77;  Coyle 
v.  Oklahoma,  221  U.  S.,  at  567.  The  Constitution  leaves  in 
the  possession  of  each  State  "certain  exclusive  and  very  im- 
portant portions  of  sovereign  power."  The  Federalist  No.  9, 
p.  55  (J.  Cooke  ed.  1961).  Foremost  among  the  prerogatives 
of  sovereignty  is  the  power  to  create  and  enforce  a  criminal 
code.  See,  e.  g.,  Alfred  L.  Snapp  &  Son,  Inc.  v.  Puerto 
Rico  ex  rel.  Barez,  458  U.  S.  592,  601  (1982);  McCulloch, 
supra,  at  418.  To  deny  a  State  its  power  to  enforce  its  crimi- 
nal laws  because  another  State  has  won  the  race  to  the  court- 
house "would  be  a  shocking  and  untoward  deprivation  of  the 
historic  right  and  obligation  of  the  States  to  maintain  peace 
and  order  within  their  confines."  Bartkus,  359  U.  S., 
at  137. 

Such  a  deprivation  of  a  State's  sovereign  powers  cannot  be 
justified  by  the  assertion  that  under  "interest  analysis"  the 
State's  legitimate  penal  interests  will  be  satisfied  through  a 
prosecution  conducted  by  another  State.  A  State's  interest 
in  vindicating  its  sovereign  authority  through  enforcement  of 
its  laws  by  definition  can  never  be  satisfied  by  another 
State's  enforcement  of  its  own  laws.  Just  as  the  Federal 
Government  has  the  right  to  decide  that  a  state  prosecution 
has  not  vindicated  a  violation  of  the  "peace  and  dignity"  of  the 
Federal  Government,  a  State  must  be  entitled  to  decide  that 
a  prosecution  by  another  State  has  not  satisfied  its  legitimate 
sovereign  interest.  In  recognition  of  this  fact,  the  Court 
consistently  has  endorsed  the  principle  that  a  single  act  con- 
stitutes an  "offence"  against  each  sovereign  whose  laws  are 
violated  by  that  act.  The  Court  has  always  understood  the 
words  of  the  Double  Jeopardy  Clause  to  reflect  this  funda- 
mental principle,  and  we  see  no  reason  why  we  should 
reconsider  that  understanding  today. 


94  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

The  judgment  of  the  Supreme  Court  of  Alabama  is 
affirmed. 

It  is  so  ordered. 

JUSTICE  BRENNAN,  with  whom  JUSTICE  MARSHALL  joins, 
dissenting. 

I  concur  wholeheartedly  in  JUSTICE  MARSHALL'S  dissent. 
I  write  separately  only  to  clarify  my  views  on  the  role  that 
"different  interests"  should  play  in  determining  whether  two 
prosecutions  are  "for  the  same  offence"  within  the  meaning  of 
the  Double  Jeopardy  Clause. 

In  Abbate  v.  United  States,  359  U.  S.  187  (1959),  in  addi- 
tion to  arguing  that  the  dual  sovereignty  doctrine  permitted 
successive  state  and  federal  prosecutions,  the  Federal  Gov- 
ernment also  urged  that  the  federal  prosecution  was  not 
barred  because  the  two  prosecutions  were  not  "for  the  same 
offense."  The  Government's  theory  was  that,  because  the 
federal  and  state  statutes  involved  had  divergent  specific 
purposes— the  federal  law  to  protect  communications  and  the 
state  law  to  protect  private  property— and  thus  promoted 
different  "interests,"  the  prosecutions  were  really  for  differ- 
ent offenses. 

I  rejected  this  argument  in  a  separate  opinion.  Id.,  at 
196-201.  My  concern  was  that  "this  reasoning  would  apply 
equally  if  each  of  two  successive  federal  prosecutions  based 
on  the  same  acts  was  brought  under  a  different  federal  stat- 
ute, and  each  statute  was  designed  to  protect  a  different  fed- 
eral interest."  Id.,  at  197  (emphasis  in  original).  That 
result  I  found  clearly  barred  by  the  Fifth  Amendment.* 


*I  illustrated  how  radical  and  pernicious  a  revision  in  existing  double 
jeopardy  jurisprudence  the  Government's  theory  might  work  by  referring 
to  In  re  Nielsen,  131  U.  S.  176  (1889).  Abbate  v.  United  States,  359  U.  S., 
at  201.  In  Nielsen,  the  defendant,  a  Mormon  with  more  than  one  wife, 
had  been  convicted  of  violating  two  separate  congressional  statutes  that 
applied  to  the  Territory  of  Utah  in  two  successive  prosecutions.  In  the 
first  prosecution  he  was  tried  for  and  convicted  of  cohabiting  with  more 


HEATH  v.  ALABAMA  95 

82  MARSHALL,  J.,  dissenting 

I  adhere  to  the  position  I  took  in  Abbate,  that  the  different 
purposes  or  interests  served  by  specific  statutes  cannot 
justify  an  exception  to  our  established  double  jeopardy  law. 
However,  I  read  JUSTICE  MARSHALL'S  dissent  to  use  "inter- 
est" analysis  in  another  context.  He  employs  it  to  demon- 
strate the  qualitative  difference  in  the  general  nature  of 
federal  and  state  interests  and  the  qualitative  similarity  in 
the  nature  of  States'  interest.  JUSTICE  MARSHALL'S  use  of 
this  interest  analysis  furthers,  rather  than  undermines,  the 
purposes  of  the  Double  Jeopardy  Clause.  Based  on  this 
understanding,  I  join  JUSTICE  MARSHALL'S  dissent. 

JUSTICE  MARSHALL,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

Seizing  upon  the  suggestion  in  past  cases  that  every  "inde- 
pendent" sovereign  government  may  prosecute  violations  of 
its  laws  even  when  the  defendant  has  already  been  tried  for 
the  same  crime  in  another  jurisdiction,  the  Court  today  gives 
short  shrift  to  the  policies  underlying  those  precedents.  The 
"dual  sovereignty"  doctrine,  heretofore  used  to  permit  fed- 
eral and  state  prosecutions  for  the  same  offense,  was  born  of 
the  need  to  accommodate  complementary  state  and  federal 
concerns  within  our  system  of  concurrent  territorial  jurisdic- 
tions. It  cannot  justify  successive  prosecutions  by  different 
States.  Moreover,  even  were  the  dual  sovereignty  doctrine 
to  support  successive  state  prosecutions  as  a  general  matter, 
it  simply  could  not  legitimate  the  collusion  between  Georgia 
and  Alabama  in  this  case  to  ensure  that  petitioner  is  executed 
for  his  crime. 


than  one  woman,  in  the  second  he  was  tried  for  and  convicted  of  adultery. 
The  Court  correctly  held  that  the  second  prosecution  had  unconstitution- 
ally placed  the  defendant  twice  in  jeopardy  for  the  same  offense  Under 
the  rule  the  Government  proposed  in  Abbate,  however,  the  mere  difference 
between  the  interests  in  prohibiting  multiple  sexual  partners  and  in  pro- 
scribing extramarital  sexual  relationships  would  have  permitted  successive 
prosecutions. 


96  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 


On  August  31,  1981,  the  body  of  Rebecca  Heath  was 
discovered  in  an  abandoned  car  in  Troup  County,  Georgia. 
Because  the  deceased  was  a  resident  of  Russell  County, 
Alabama,  members  of  the  Russell  County  Sheriff's  Depart- 
ment immediately  joined  Troup  County  authorities  in  investi- 
gating the  causes  and  agents  of  her  death.  Tr.  359.  This 
cooperative  effort  proved  fruitful.  On  September  4,  peti- 
tioner Larry  Heath,  the  deceased's  husband,  was  arrested 
and  brought  to  the  Georgia  State  Patrol  barracks  in  Troup 
County,  where  he  confessed  to  having  hired  other  men  to 
murder  his  wife.  Shortly  thereafter,  petitioner  was  indicted 
by  the  grand  jury  of  Troup  County  for  malice  murder.  The 
prosecution's  notice  to  petitioner  that  it  was  seeking  the 
death  penalty  triggered  the  beginning  of  the  Unified  Appeals 
Procedure  that  Georgia  requires  in  capital  cases.  But  while 
these  pretrial  proceedings  were  still  in  progress,  petitioner 
seized  the  prosecution's  offer  of  a  life  sentence  in  exchange 
for  a  guilty  plea.  Upon  entry  of  his  plea  in  February  1982, 
petitioner  was  sentenced  in  Troup  County  Superior  Court 
to  life  imprisonment.  His  stay  in  the  custody  of  Georgia 
authorities  proved  short,  however.  Three  months  later,  a 
Russell  County,  Alabama,  grand  jury  indicted  him  for  the 
capital  offense  of  murdering  Rebecca  Heath  during  the 
course  of  a  kidnaping  in  the  first  degree. 

The  murder  of  Rebecca  Heath  must  have  been  quite  note- 
worthy in  Russell  County,  Alabama.  By  petitioner's  count, 
of  the  82  prospective  jurors  questioned  before  trial  during 
voir  dire,  all  but  7  stated  that  they  were  aware  that  peti- 
tioner had  pleaded  guilty  to  the  same  crime  in  Georgia.  Id., 
at  294.  The  voir  dire  responses  of  almost  all  of  the  remain- 
ing 75  veniremen  can  only  be  characterized  as  remarkable. 
When  asked  whether  they  could  put  aside  their  knowledge 
of  the  prior  guilty  plea  in  order  to  give  petitioner  a  fair  trial 
in  Alabama,  the  vast  majority  answered  in  the  affirmative. 
See,  e.  g.,  id.,  at  110,  112-113,  134,  254.  These  answers  sat- 


HEATH  v.  ALABAMA  97 

82  MARSHALL,  J. ,  dissenting 

isfied  the  trial  judge,  who  denied  petitioner's  challenges  for 
cause  except  as  to  those  jurors  who  explicitly  admitted  that 
the  Georgia  proceedings  would  probably  affect  their  assess- 
ment of  petitioner's  guilt. 

With  such  a  well-informed  jury,  the  outcome  of  the  trial 
was  surely  a  foregone  conclusion.  Defense  counsel  could  do 
little  but  attempt  to  elicit  information  from  prosecution  wit- 
nesses tending  to  show  that  the  crime  was  committed  exclu- 
sively in  Georgia.  The  court  having  rejected  petitioner's 
constitutional  and  jurisdictional  claims,  the  defense  was  left 
to  spend  most  of  its  summation  arguing  that  Rebecca  Heath 
may  not  actually  have  been  kidnaped  from  Alabama  before 
she  was  murdered  and  that  petitioner  was  already  being  pun- 
ished for  ordering  that  murder.  Petitioner  was  convicted 
and,  after  sentencing  hearings,  was  condemned  to  die.  The 
conviction  and  sentence  were  upheld  by  the  Alabama  Court 
of  Criminal  Appeals,  455  So.  2d  898  (1983),  and  the  Alabama 
Supreme  Court.  Ex  parte  Heath,  455  So.  2d  905  (1984). 

II 

Had  the  Georgia  authorities  suddenly  become  dissatisfied 
with  the  life  sentence  petitioner  received  in  their  courts  and 
reindicted  petitioner  in  order  to  seek  the  death  penalty  once 
again,  that  indictment  would  without  question  be  barred  by 
the  Double  Jeopardy  Clause  of  the  Fifth  Amendment,  as  ap- 
plied to  the  States  by  the  Fourteenth  Amendment,  Benton 
v.  Maryland,  395  U.  S.  784  (1969).  Whether  the  second  in- 
dictment repeated  the  charge  of  malice  murder  or  instead 
charged  murder  in  the  course  of  a  kidnaping,  it  would  surely, 
under  any  reasonable  constitutional  standard,  offend  the  bar 
to  successive  prosecutions  for  the  same  offense.  See  Brown 
v.  Ohio,  432  U.  S.  161,  166  (1977);  id.,  at  170  (BRENNAN,  J., 
concurring). 

The  only  difference  between  this  case  and  such  a  hypo- 
thetical volte-face  by  Georgia  is  that  here  Alabama,  not 
Georgia,  was  offended  by  the  notion  that  petitioner  might 


98  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

not  forfeit  his  life  in  punishment  for  his  crime.  The  only  rea- 
son the  Court  gives  for  permitting  Alabama  to  go  forward 
is  that  Georgia  and  Alabama  are  separate  sovereigns. 


The  dual  sovereignty  theory  posits  that  where  the  same 
act  offends  the  laws  of  two  sovereigns,  "it  cannot  be  truly 
averred  that  the  offender  has  been  twice  punished  for  the 
same  offence;  but  only  that  by  one  act  he  has  committed  two 
offences,  for  each  of  which  he  is  justly  punishable."  Moore 
v.  Illinois,  14  How.  13,  20  (1852).  Therefore,  "prosecutions 
under  the  laws  of  separate  sovereigns  do  not,  in  the  language 
of  the  Fifth  Amendment,  'subject  [the  defendant]  for  the 
same  offence  to  be  twice  put  in  jeopardy.' "  United  States  v. 
Wheeler,  435  U.  S.  313,  317  (1978).  Mindful  of  the  admoni- 
tions of  Justice  Black,  we  should  recognize  this  exegesis  of 
the  Clause  as,  at  best,  a  useful  fiction  and,  at  worst,  a  dan- 
gerous one.  See  Bartkus  v.  Illinois,  359  U.  S.  121,  158 
(1959)  (Black,  J.,  dissenting).  No  evidence  has  ever  been 
adduced  to  indicate  that  the  Framers  intended  the  word 
"offence"  to  have  so  restrictive  a  meaning.1 

This  strained  reading  of  the  Double  Jeopardy  Clause  has 
survived  and  indeed  flourished  in  this  Court's  cases  not 
because  of  any  inherent  plausibility,  but  because  it  provides 
reassuring  interpretivist  support  for  a  rule  that  accommo- 
dates the  unique  nature  of  our  federal  system.  Before  this 
rule  is  extended  to  cover  a  new  class  of  cases,  the  reasons  for 
its  creation  should  therefore  be  made  clear. 


1  It  is  curious  to  note  how  reluctant  the  Court  has  always  been  to  ascer- 
tain the  intent  of  the  Framers  in  this  area.  The  furthest  the  Court  has 
ever  progressed  on  such  an  inquiry  was  to  note:  "It  has  not  been  deemed 
relevant  to  discussion  of  our  problem  to  consider  dubious  English  prece- 
dents concerning  the  effect  of  foreign  criminal  judgments  on  the  ability  of 
English  courts  to  try  charges  arising  out  of  the  same  conduct  .  .  .  ." 
Bartkus  v.  Illinois,  359  U.  S.,  at  128,  n.  9.  But  see  id.,  at  156  (Black,  J., 
dissenting);  M.  Friedland,  Double  Jeopardy  360-364  (1969). 


HEATH  v.  ALABAMA  99 

82  MARSHALL,  J.,  dissenting 

Under  the  constitutional  scheme,  the  Federal  Government 
has  been  given  the  exclusive  power  to  vindicate  certain  of  our 
Nation's  sovereign  interests,  leaving  the  States  to  exercise 
complementary  authority  over  matters  of  more  local  concern. 
The  respective  spheres  of  the  Federal  Government  and  the 
States  may  overlap  at  times,  and  even  where  they  do  not,  dif- 
ferent interests  may  be  implicated  by  a  single  act.  See, 
e.  g.,  Abbate  v.  United  States,  359  U.  S.  187  (1959)  (conspir- 
acy to  dynamite  telephone  company  facilities  entails  both  de- 
struction of  property  and  disruption  of  federal  communica- 
tions network).  Yet  were  a  prosecution  by  a  State,  however 
zealously  pursued,  allowed  to  preclude  further  prosecution 
by  the  Federal  Government  for  the  same  crime,  an  entire 
range  of  national  interests  could  be  frustrated.  The  impor- 
tance of  those  federal  interests  has  thus  quite  properly  been 
permitted  to  trump  a  defendant's  interest  in  avoiding  suc- 
cessive prosecutions  or  multiple  punishments  for  the  same 
crime.  See  Screws  v.  United  States,  325  U.  S.  91,  108-110, 
and  n.  10  (1945)  (plurality  opinion).  Conversely,  because 
"the  States  under  our  federal  system  have  the  principal 
responsibility  for  defining  and  prosecuting  crimes,"  Abbate  v. 
United  States,  supra,  at  195,  it  would  be  inappropriate— in 
the  absence  of  a  specific  congressional  intent  to  pre-empt 
state  action  pursuant  to  the  Supremacy  Clause— to  allow  a 
federal  prosecution  to  preclude  state  authorities  from  vin- 
dicating "the  historic  right  and  obligation  of  the  States  to 
maintain  peace  and  order  within  their  confines,"  Bartkus  v. 
Illinois,  supra,  at  137. 

The  complementary  nature  of  the  sovereignty  exercised  by 
the  Federal  Government  and  the  States  places  upon  a  de- 
fendant burdens  commensurate  with  concomitant  privileges. 
Past  cases  have  recognized  that  the  special  ordeal  suffered  by 
a  defendant  prosecuted  by  both  federal  and  state  authorities 
is  the  price  of  living  in  a  federal  system,  the  cost  of  dual 
citizenship.  Every  citizen,  the  Court  has  noted,  "owes  alle- 
giance to  the  two  departments,  so  to  speak,  and  within  their 


100  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

respective  spheres  must  pay  the  penalties  which  each  exacts 
for  disobedience  to  its  laws.  In  return,  he  can  demand  pro- 
tection from  each  within  its  own  jurisdiction."  United  States 
v.  Cruikshank,  92  U.  S.  542,  551  (1876).  See  Moore  v.  Illi- 
nois, supra,  at  20  ("Every  citizen  .  .  .  may  be  said  to  owe  al- 
legiance to  two  sovereigns,  and  may  be  liable  to  punishment 
for  an  infraction  of  the  laws  of  either"). 

B 

Because  all  but  one  of  the  cases  upholding  the  dual  sov- 
ereignty doctrine  have  involved  the  unique  relationship  be- 
tween the  Federal  Government  and  the  States,2  the  question 
whether  a  similar  rule  should  exempt  successive  prosecutions 
by  two  different  States  from  the  command  of  the  Double  Jeop- 
ardy Clause  is  one  for  which  this  Court's  precedents  provide 
all  too  little  illumination.  Only  once  before  has  the  Court  ex- 
plicitly considered  competing  state  prosecutorial  interests. 
In  that  case,  it  observed  that  where  an  act  is  prohibited  by  the 
laws  of  two  States  with  concurrent  jurisdiction  over  the  locus 
of  the  offense 

"the  one  first  acquiring  jurisdiction  of  the  person  may 
prosecute  the  offense,  and  its  judgment  is  a  finality  in 
both  States,  so  that  one  convicted  or  acquitted  in  the 
courts  of  the  one  State  cannot  be  prosecuted  for  the 
same  offense  in  the  courts  of  the  other."  Nielsen  v. 
Oregon,  212  U.  S.  315,  320  (1909). 

Where  two  States  seek  to  prosecute  the  same  defendant 
for  the  same  crime  in  two  separate  proceedings,  the  justifica- 

2  United  States  v.  Wheeler,  435  U.  S.  313  (1978),  where  the  Court  up- 
held successive  prosecutions  by  Federal  Government  and  Navajo  tribal 
authorities,  merely  recognizes  an  analogous  relationship  between  two 
governments  with  complementary  concerns.  While  the  Court  noted  that 
"Congress  has  plenary  authority  to  legislate  for  the  Indian  tribes  in  all  mat- 
ters, including  their  form  of  government,"  id.,  at  319,  Congress  has  in  fact 
wisely  refrained  from  interfering  in  this  sensitive  area.  The  relationship 
between  federal  and  tribal  authorities  is  thus  in  this  respect  analogous  to 
that  between  the  Federal  Government  and  the  States. 


HEATH  v.  ALABAMA  101 

82  MARSHALL,  J.,  dissenting 

tions  found  in  the  federal-state  context  for  an  exemption  from 
double  jeopardy  constraints  simply  do  not  hold.  Although 
the  two  States  may  have  opted  for  different  policies  within 
their  assigned  territorial  jurisdictions,  the  sovereign  con- 
cerns with  whose  vindication  each  State  has  been  charged  are 
identical.  Thus,  in  contrast  to  the  federal-state  context,  bar- 
ring the  second  prosecution  would  still  permit  one  govern- 
ment to  act  upon  the  broad  range  of  sovereign  concerns  that 
have  been  reserved  to  the  States  by  the  Constitution.  The 
compelling  need  in  the  federal-state  context  to  subordinate 
double  jeopardy  concerns  is  thus  considerably  diminished  in 
cases  involving  successive  prosecutions  by  different  States. 
Moreover,  from  the  defendant's  perspective,  the  burden  of 
successive  prosecutions  cannot  be  justified  as  the  quid  pro 
quo  of  dual  citizenship. 

To  be  sure,  a  refusal  to  extend  the  dual  sovereignty  rule  to 
state-state  prosecutions  would  preclude  the  State  that  has 
lost  the  "race  to  the  courthouse"  from  vindicating  legitimate 
policies  distinct  from  those  underlying  its  sister  State's  pros- 
ecution. But  as  yet,  I  am  not  persuaded  that  a  State's  desire 
to  further  a  particular  policy  should  be  permitted  to  deprive 
a  defendant  of  his  constitutionally  protected  right  not  to  be 
brought  to  bar  more  than  once  to  answer  essentially  the  same 
charges. 

Ill 

Having  expressed  my  doubts  as  to  the  Court's  ill-consid- 
ered resolution  of  the  dual  sovereignty  question  in  this  case,  I 
must  confess  that  my  quarrel  with  the  Court's  disposition  of 
this  case  is  based  less  upon  how  this  question  was  resolved 
than  upon  the  fact  that  it  was  considered  at  all.  Although,  in 
granting  Heath's  petition  for  certiorari,  this  Court  ordered 
the  parties  to  focus  upon  the  dual  sovereignty  issue,  I  believe 
the  Court  errs  in  refusing  to  consider  the  fundamental  unfair- 
ness of  the  process  by  which  petitioner  stands  condemned  to 
die. 


102  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

Even  where  the  power  of  two  sovereigns  to  pursue  sepa- 
rate prosecutions  for  the  same  crime  has  been  undisputed, 
this  Court  has  barred  both  governments  from  combining  to 
do  together  what  each  could  not  constitutionally  do  on  its 
own.  See  Murphy  v.  Waterfront  Comm'n,  378  U.  S.  52 
(1964);  Elkins  v.  United  States,  364  U.  S.  206  (I960).3  And 
just  as  the  Constitution  bars  one  sovereign  from  facilitating 
another's  prosecution  by  delivering  testimony  coerced  under 
promise  of  immunity  or  evidence  illegally  seized,  I  believe 
that  it  prohibits  two  sovereigns  from  combining  forces  to  en- 
sure that  a  defendant  receives  only  the  trappings  of  criminal 
process  as  he  is  sped  along  to  execution. 

While  no  one  can  doubt  the  propriety  of  two  States  cooper- 
ating to  bring  a  criminal  to  justice,  the  cooperation  between 
Georgia  and  Alabama  in  this  case  went  far  beyond  their  ini- 
tial joint  investigation.  Georgia's  efforts  to  secure  petition- 
er's execution  did  not  end  with  its  acceptance  of  his  guilty 
plea.  Its  law  enforcement  officials  went  on  to  play  leading 
roles  as  prosecution  witnesses  in  the  Alabama  trial.  Indeed, 
had  the  Alabama  trial  judge  not  restricted  the  State  to  one 
assisting  officer  at  the  prosecution's  table  during  trial,  a 
Georgia  officer  would  have  shared  the  honors  with  an  Ala- 
bama officer.  Tr.  298.  Although  the  record  does  not  reveal 

3  To  be  sure,  Murphy,  which  bars  a  State  from  compelling  a  witness  to 
give  testimony  that  might  be  used  against  him  in  a  federal  prosecution,  and 
Elkins,  which  bars  the  introduction  in  a  federal  prosecution  of  evidence 
illegally  seized  by  state  officers,  do  not  necessarily  undermine  the  basis  of 
the  rule  allowing  successive  state  and  federal  prosecutions.  It  is  one  thing 
to  bar  a  sovereign  from  using  certain  evidence  and  quite  another  to  bar  it 
from  prosecuting  altogether.  But  these  cases  can  be  read  to  suggest  that 
despite  the  independent  sovereign  status  of  the  Federal  and  State  Govern- 
ments, courts  should  not  be  blind  to  the  impact  of  combined  federal-state 
law  enforcement  on  an  accused's  constitutional  rights.  See  Note,  Double 
Prosecution  by  State  and  Federal  Governments:  Another  Exercise  in  Fed- 
eralism, 80  Harv.  L.  Rev.  1538,  1547  (1967).  Justice  Harlan's  belief  that 
Murphy  "abolished  the  'two  sovereignties'  rule,"  Stevens  v.  Marks,  383 
U.  S.  234,  250  (1966)  (Harlan,  J.,  concurring  in  part,  dissenting  in  part), 
was  thus  well  founded. 


HEATH  tt  ALABAMA  103 

82  MARSHALL,  J.,  dissenting 

the  precise  nature  of  the  assurances  made  by  Georgia  au- 
thorities that  induced  petitioner  to  plead  guilty  in  the  first 
proceeding  against  him,  I  cannot  believe  he  would  have  done 
so  had  he  been  aware  that  the  officials  whose  forbearance  he 
bought  in  Georgia  with  his  plea  would  merely  continue  their 
efforts  to  secure  his  death  in  another  jurisdiction.  Cf.  San- 
tobello  v.  New  York,  404  U.  S.  257,  262  (1971). 

Even  before  the  Fourteenth  Amendment  was  held  to  incor- 
porate the  protections  of  the  Double  Jeopardy  Clause,  four 
Members  of  this  Court  registered  their  outrage  at  "an  in- 
stance of  the  prosecution  being  allowed  to  harass  the  accused 
with  repeated  trials  and  convictions  on  the  same  evidence, 
until  it  achieve[d]  its  desired  result  of  a  capital  verdict." 
Ciucci  v.  Illinois,  356  U.  S.  571,  573  (1958).  Such  "relent- 
less prosecutions,"  they  asserted,  constituted  "an  unseemly 
and  oppressive  use  of  a  criminal  trial  that  violates  the  concept 
of  due  process  contained  in  the  Fourteenth  Amendment, 
whatever  its  ultimate  scope  is  taken  to  be."  7d.,  at  575. 
The  only  differences  between  the  facts  in  Ciucci  and  those  in 
this  case  are  that  here  the  relentless  effort  was  a  cooperative 
one  between  two  States  and  that  petitioner  sought  to  avoid 
trial  by  pleading  guilty.  Whether  viewed  as  a  violation  of 
the  Double  Jeopardy  Clause  or  simply  as  an  affront  to  the  due 
process  guarantee  of  fundamental  fairness,  Alabama's  pros- 
ecution of  petitioner  cannot  survive  constitutional  scrutiny. 
I  therefore  must  dissent. 


104  OCTOBER  TERM,  1985 

SyUabus  474  U.  S. 

MILLER  v.  FENTON,  SUPERINTENDENT,  RAHWAY 
STATE  PRISON,  ET  AL. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  THIRD  CIRCUIT 

No.  84-5786.     Argued  October  16,  1985— Decided  December  3,  1985 

Petitioner,  after  a  58-minute  interrogation  at  the  New  Jersey  State  Police 
Barracks,  confessed  to  a  murder.  The  New  Jersey  trial  court  rejected 
his  motion  to  suppress  the  confession,  and  the  jury  found  him  guilty  of 
first-degree  murder.  The  New  Jersey  Superior  Court  Appellate  Divi- 
sion reversed,  finding  as  a  matter  of  law  that  the  confession  was  the 
result  of  compulsion  and  thus  was  impermissible  under  the  Fourteenth 
Amendment's  due  process  guarantee.  The  New  Jersey  Supreme  Court 
reversed,  finding,  after  examining  the  "totality  of  all  the  surrounding 
circumstances,"  that  the  interrogation  was  proper  and  that  the  resulting 
confession,  being  voluntary,  had  been  properly  admitted  into  evidence. 
Petitioner  then  sought  a  writ  of  habeas  corpus  in  Federal  District  Court, 
which  dismissed  the  petition  without  an  evidentiary  hearing.  The  Court 
of  Appeals  affirmed,  holding  that  the  voluntariness  of  a  confession  is  a 
"factual  issue"  within  the  meaning  of  28  U.  S.  C.  §2254(d),  which  pro- 
vides that  state-court  findings  of  fact,  with  certain  exceptions,  "shall 
be  presumed  to  be  correct"  in  a  federal  habeas  corpus  proceeding,  and 
that  accordingly  federal  review  of  the  New  Jersey  Supreme  Court's 
determination  that  petitioner's  confession  was  voluntary  was  limited  to 
whether  that  court  applied  the  proper  legal  test  and  whether  its  factual 
conclusions  were  supported  by  the  record.  Under  this  standard,  the 
Court  of  Appeals  concluded  that  the  District  Court's  denial  of  the  habeas 
corpus  petition  was  proper. 

Held:  The  voluntariness  of  a  confession  is  not  an  issue  of  fact  entitled  to 
the  §  2254(d)  presumption  but  is  a  legal  question  meriting  independent 
consideration  in  a  federal  habeas  corpus  proceeding.  Pp.  109-118. 

(a)  There  is  no  support  in  this  Court's  decisions  for  the  suggestion  that 
the  enactment  of  §  2254(d)  in  1966  altered  this  Court's  prior  confession 
cases  holding  that  the  ultimate  issue  of  "voluntariness"  is  a  legal  ques- 
tion requiring  independent  federal  determination.      More  importantly, 
§2254(d)'s  history  undermines  any  argument  that  Congress  intended 
that  the  ultimate  question  of  the  admissibility  of  a  confession  be  treated 
as  a  "factual  issue"  within  the  meaning  of  that  provision.     Pp.  109-112. 

(b)  In  addition  to  considerations  of  stare  decisis  and  congressional  in- 
tent, the  nature  of  the  "voluntariness"  inquiry  itself  lends  support  to  the 


MILLEE  v.  FENTON  105 

104  Opinion  of  the  Court 

holding  in  this  case.  Moreover,  the  practical  considerations  that  have 
led  this  Court  to  find  other  issues  within  the  scope  of  the  §  2254(d)  pre- 
sumption are  absent  in  the  confession  context.  Unlike  such  issues  as 
the  impartiality  of  a  juror  or  competency  to  stand  trial,  assessments  of 
credibility  and  demeanor  are  not  crucial  to  the  proper  resolution  of  the 
ultimate  issue  of  voluntariness.  And  the  critical  events  surrounding  the 
taking  of  a  confession  almost  invariably  occur,  not  in  open  court,  but  in  a 
secret  and  more  coercive  environment.  Pp.  112-118. 
741  F.  2d  1456,  reversed  and  remanded. 

O'CONNOR,  J. ,  delivered  the  opinion  of  the  Court,  in  which  BURGER, 
C.  J.,  and  BRENNAN,  WHITE,  MARSHALL,  BLACKMUN,  POWELL,  and 
STEVENS,  JJ.,  joined.  REHNQUIST,  J.,  filed  a  dissenting  opinion,  post, 
p.  118. 

Paul  Martin  Klein  argued  the  cause  for  petitioner.  With 
him  on  the  briefs  were  Thomas  S.  Smith  and  Claudia  Van 
Wyk. 

Anne  C.  Paskow,  Deputy  Attorney  General  of  New  Jer- 
sey, argued  the  cause  for  respondents.  With  her  on  the 
brief  were  Irwin  I.  Kimmelman,  Attorney  General,  and 
Allan  J.  Nodes  and  Debra  L.  Stone,  Deputy  Attorneys 
General.  * 

JUSTICE  O'CONNOR  delivered  the  opinion  of  the  Court. 

Under  28  U.  S.  C.  §  2254(d),  state-court  findings  of  fact 
"shall  be  presumed  to  be  correct"  in  a  federal  habeas  cor- 
pus proceeding  unless  one  of  eight  enumerated  exceptions  ap- 
plies.1 The  question  presented  is  whether  the  voluntariness 

*  Charles  S.  Sims  filed  a  brief  for  the  American  Civil  Liberties  Union 
et  al.  as  armci  curiae  urging  reversal. 

1  In  pertinent  part,  28  U.  S.  C.  §2254(d)  provides: 

"In  any  proceeding  instituted  in  a  Federal  Court  by  an  application  for  a 
writ  of  habeas  corpus  by  a  person  in  custody  pursuant  to  the  judgment  of  a 
State  court,  a  determination  after  a  hearing  on  the  merits  of  a  factual  issue, 
made  by  a  State  court  of  competent  jurisdiction  .  .  .  shall  be  presumed  to 
be  correct,  unless  .  .  . 

"(8)  .  .  .  the  Federal  court .  .  .  concludes  that  such  factual  determination  is 
not  supported  by  the  record  as  a  whole." 


106  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

of  a  confession  is  an  issue  of  fact  entitled  to  the  §  2254(d) 
presumption. 

I 

On  the  morning  of  August  13,  1973,  a  stranger  approached 
the  rural  New  Jersey  home  of  17-year-old  Deborah  Margolin 
and  told  her  that  a  heifer  was  loose  at  the  foot  of  her  drive- 
way. She  set  out  alone  to  investigate  and  never  returned. 
Later  that  day,  her  mutilated  body  was  found  in  a  nearby 
stream. 

The  victim's  brothers  were  able  to  provide  a  description  of 
the  stranger's  car  and  clothing.  Based  on  this  information, 
officers  of  the  New  Jersey  State  Police  tentatively  identified 
petitioner  and,  later  that  evening,  found  him  at  his  place  of 
employment.  Petitioner  responded  to  the  officers'  prelimi- 
nary inquiries  and  agreed  to  return  to  the  police  barracks  for 
further  questioning.  Approximately  two  hours  later,  Detec- 
tive Charles  Boyce  led  petitioner  to  an  interrogation  room 
and  informed  him  of  his  Miranda  rights.  Petitioner  inquired 
about  the  scope  of  his  privilege  to  remain  silent  and  then  exe- 
cuted a  written  waiver,  the  validity  of  which  is  not  at  issue. 

A  58  minute  long  interrogation  session  ensued.  During 
the  course  of  the  interview,  Detective  Boyce  told  petitioner 
that  Ms.  Margolin  had  just  died.  That  statement,  which 
Boyce  knew  to  be  untrue,  supported  another  officer's  earlier, 
and  equally  false,  suggestion  that  the  victim  was  still  alive 
and  could  identify  her  attacker.  App.  16-17;  Record  109  and 
305.  Detective  Boyce  also  told  petitioner  that  he  had  been 
identified  at  the  Margolin  home  earlier  in  the  day.  In  fact, 
Ms.  Margolin's  brothers  had  only  provided  a  general  descrip- 
tion of  the  stranger's  car  and  clothing.  Finally,  Detective 
Boyce  indicated  that  blood  stains  had  been  found  on  petition- 
er's front  stoop.  No  such  evidence  was  introduced  at  trial, 
and  respondents  do  not  now  contend  that  it  ever  in  fact 
existed. 

Throughout  the  interview,  Detective  Boyce  presented 
himself  as  sympathetic  to  petitioner's  plight.  On  several 


MILLER  v.  FENTON  107 

104  Opinion  of  the  Court 

occasions,  he  stated  that  he  did  not  consider  petitioner  to  be  a 
criminal  because  the  perpetrator  of  the  deed  had  a  "mental 
problem"  and  needed  medical  help  rather  than  punishment. 
App.  19. 2  Eventually,  petitioner  fully  confessed  to  the 
crime.  After  doing  so,  he  lapsed  into  what  Detective  Boyce 
described  as  a  "state  of  shock."  Record  84-85.  Repeated 

2  The     following    exchange    is    representative    of    the    tone    of    the 
interrogation. 

"Boyce:  'Frank,  look,  you  want  help,  don't  you,  Frank?* 
"Miller:  'Yes,  uh  huh,  yes,  but  yet  I'm,  I'm  not  going  to  admit  to  some- 
thing that,  that  I  wasn't  involved  in. ' 

"Boyce:  We  don't  want  you  to,  all  I  want  you  to  do  is  talk  to  me,  that's  all. 
I'm  not  talking  about  admitting  to  anything  Frank.     I  want  you  to  talk  to 
me.     I  want  you  to  tell  me  what  you  think.     I  want  you  to  tell  me  how  you 
think  about  this,  what  you  think  about  this?' 
"Miller:  'What  I  think  about  it?' 
"Boyce:  'Yeah.' 

"Miller:  'I  think  whoever  did  it  really  needs  help.' 

"Boyce:  'And  that's  what  I  think  and  that's  what  I  know.     They  don't, 
they  don't  need  punishment,  right?     Like  you  said,  they  need  help.' 
"Miller:  'Right.' 

"Boyce:  'Now,  don't  you  think  it's  better  if  someone  knows  that  he  or  she 
has  a  mental  problem  to  come  forward  with  it  and  say,  look,  I've,  I've,  I've 
done  these  acts,  I'm  responsible  for  this,  but  I  want  to  be  helped,  I  couldn't 
help  myself,  I  had  no  control  of  myself  and  if  I'm  examined  properly  you'll 
find  out  that's  the  case.' 

"  'Okay.  [L]isten  Frank,  [i]f  I  promise  to,  you  know,  do  all  I  can  with  the 
psychiatrist  and  everything,  and  we  get  the  proper  help  for  you  .  .  .  will 
you  talk  to  me  about  it.' 

"Miller:  *I  can't  talk  to  you  about  something  I'm  not  .  .  .' 
"Boyce:  'Alright,  listen  Frank,  alright,  honest.      I  know,  I  know  what's 
going  on  inside  you,  Frank.     I  want  to  help  you,  you  know,  between  us 
right  now.  .  .  .  You've  got  to  talk  to  me  about  it.     This  is  the  only  way 
we'll  be  able  to  work  it  out.     I  mean,  you  know,  listen,  I  want  to  help  you, 
because  you  are  in  my  mind,  you  are  not  responsible.     You  are  not  respon- 
sible, Frank.     Frank,  what's  the  matter?' 
"Miller:  'I  feel  bad.'"     App.  17-22. 


108  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

efforts  to  rouse  him  from  his  stupor  failed,  and  the  police 
summoned  an  ambulance  to  transport  him  to  the  hospital. 

The  trial  court  rejected  petitioner's  motion  to  suppress  the 
confession,  and  the  jury  found  petitioner  guilty  of  murder  in 
the  first  degree.  The  Superior  Court  Appellate  Division  re- 
versed, finding  as  a  matter  of  law  that  the  confession  was  the 
result  of  "intense  and  mind  bending  psychological  compul- 
sion" and  therefore  was  impermissible  under  the  Fourteenth 
Amendment's  guarantee  of  due  process.  App.  53.  Over 
three  dissents,  the  Supreme  Court  of  New  Jersey  reversed 
again.  State  v.  Miller,  76  N.  J.  392,  388  A.  2d  218  (1978). 
After  examining  the  "totality  of  all  the  surrounding  circum- 
stances," including  petitioner's  educational  level,  age,  and 
awareness  of  his  Miranda  rights,  the  court  found  that  the 
interrogation  "did  not  exceed  proper  bounds,"  and  that  the 
resulting  confession,  being  voluntary,  had  been  properly  ad- 
mitted into  evidence.  Id. ,  at  402-405,  388  A.  2d,  at  223-224. 

Petitioner  then  sought  a  writ  of  habeas  corpus  in  the 
United  States  District  Court  for  the  District  of  New  Jersey. 
That  court  dismissed  the  application  without  an  evidentiary 
hearing.  A  divided  panel  of  the  Court  of  Appeals  for  the 
Third  Circuit  affirmed.  741  F.  2d  1456  (1984).  Relying  on 
Circuit  precedent,3  the  court  held  that  the  voluntariness  of 
a  confession  is  a  "factual  issue"  within  the  meaning  of  28 
U.  S.  C.  §2254(d).  Accordingly,  federal  review  of  the  New 
Jersey  Supreme  Court's  determination  that  petitioner's  con- 
fession was  voluntary  was  "limited  to  whether  the  state  court 
applied  the  proper  legal  test,  and  whether  [its]  factual  conclu- 
sions .  .  .  [were]  supported  on  the  record  as  a  whole."  741 
F.  2d,  at  1462.  Under  this  standard,  the  court  concluded, 


3  The  Court  of  Appeals  relied  on  an  earlier  decision  of  that  court  holding 
that  the  "voluntariness"  of  a  waiver  of  Miranda  rights  was  entitled  to  the 
§2254(d)  presumption.  Patterson  v.  Cuyler,  729  F.  2d  925,  930  (1984). 
The  present  case  presents  no  occasion  for  us  to  address  the  question 
whether  federal  habeas  courts  must  accord  the  statutory  presumption  of 
correctness  to  state-court  findings  concerning  the  validity  of  a  waiver. 


MILLER  v.  FENTON  109 

104  Opinion  of  the  Court 

the  District  Court's  denial  of  the  petition  for  habeas  relief 
was  proper. 

Because  the  Courts  of  Appeals  have  reached  differing 
conclusions  on  whether  state-court  voluntariness  determina- 
tions are  entitled  to  the  §2254(d)  presumption  of  correctness, 
and  because  of  the  issue's  importance  to  the  administration 
of  criminal  justice,  we  granted  certiorari.  471  U.  S.  1003 
(1985).  Compare  Brantley  v.  McKaskle,  722  F.  2d  187,  188 
(CAS  1984)  "([V]oluntariness  of  a  confession  is  a  mixed  ques- 
tion of  law  and  fact"),  with  Alexander  v.  Smith,  582  F.  2d 
212,  217  (CA2)  (state-court  voluntariness  determination  enti- 
tled to  §  2254(d)  presumption),  cert,  denied,  439  U,  S.  990 
(1978).  We  now  reverse  and  remand. 

II 

This  Court  has  long  held  that  certain  interrogation  tech- 
niques, either  in  isolation  or  as  applied  to  the  unique  charac- 
teristics of  a  particular  suspect,  are  so  offensive  to  a  civilized 
system  of  justice  that  they  must  be  condemned  under  the 
Due  Process  Clause  of  the  Fourteenth  Amendment.  Brown 
v.  Mississippi,  297  U.  S.  278  (1936),  was  the  wellspring  of 
this  notion,  now  deeply  embedded  in  our  criminal  law. 
Faced  with  statements  extracted  by  beatings  and  other 
forms  of  physical  and  psychological  torture,  the  Court  held 
that  confessions  procured  by  means  "revolting  to  the  sense  of 
justice"  could  not  be  used  to  secure  a  conviction.  Id. ,  at  286. 
On  numerous  subsequent  occasions  the  Court  has  set  aside 
convictions  secured  through  the  admission  of  an  improperly 
obtained  confession.  See,  e.  g.,  Mincey  v.  Arizona,  437 
U.  S.  385  (1978);  Haynes  v.  Washington,  373  U.  S.  503 
(1963);  Ashcraft  v.  Tennessee,  322  U.  S.  143  (1944);  Cham- 
bers v.  Florida,  309  U,  S.  227,  235-238  (1940).  Although 
these  decisions  framed  the  legal  inquiry  in  a  variety  of  differ- 
ent ways,  usually  through  the  "convenient  shorthand"  of  ask- 
ing whether  the  confession  was  "involuntary,"  Blackburn  v. 
Alabama,  361  U.  S.  199,  207  (1960),  the  Court's  analysis  has 


110  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

consistently  been  animated  by  the  view  that  "ours  is  an  accu- 
satorial and  not  an  inquisitorial  system,"  Rogers  v.  Rich- 
mond, 365  U.  S.  534,  541  (1961),  and  that,  accordingly,  tac- 
tics for  eliciting  inculpatory  statements  must  fall  within  the 
broad  constitutional  boundaries  imposed  by  the  Fourteenth 
Amendment's  guarantee  of  fundamental  fairness.  Indeed, 
even  after  holding  that  the  Fifth  Amendment  privilege 
against  compulsory  self-incrimination  applies  in  the  context 
of  custodial  interrogations,  Miranda  v.  Arizona,  384  U.  S. 
436,  478  (1966),  and  is  binding  on  the  States,  Malloy  v. 
Hogan,  378  U.  S.  1,  6  (1964),  the  Court  has  continued  to 
measure  confessions  against  the  requirements  of  due  process. 
See,  e.  g.,  Mincey  v.  Arizona,  supra,  at  402;  Beecher  v. 
Alabama,  389  U.  S.  35,  38  (1967)  (per  curiam). 

Without  exception,  the  Court's  confession  cases  hold  that 
the  ultimate  issue  of  "voluntariness"  is  a  legal  question 
requiring  independent  federal  determination.  See,  e.  g., 
Haynes  v.  Washington,  supra,  at  515-516;  Ashcraft  v.  Ten- 
nessee, supra,  at  147-148.  As  recently  as  1978,  the  Court 
reaffirmed  that  it  was  "not  bound  by"  a  state-court  volun- 
tariness finding  and  reiterated  its  historic  "duty  to  make  an 
independent  evaluation  of  the  record."  Mincey  v.  Arizona, 
supra,  at  398.  That  duty,  as  Mincey  makes  explicit,  is  not 
limited  to  instances  in  which  the  claim  is  that  the  police 
conduct  was  "inherently  coercive."  Ashcraft  v.  Tennessee, 
supra,  at  154.  It  applies  equally  when  the  interrogation 
techniques  were  improper  only  because,  in  the  particular  cir- 
cumstances of  the  case,  the  confession  is  unlikely  to  have 
been  the  product  of  a  free  and  rational  will.  See  Mincey  v. 
Arizona,  supra,  at  401.  Because  the  ultimate  issue  in  both 
categories  of  cases  is  the  same — whether  the  State  has  ob- 
tained the  confession  in  a  manner  that  comports  with  due 
process— the  decisions  leave  no  doubt  that  our  independent 
obligation  to  decide  the  constitutional  question  is  identical. 
Mincey,  Ashcraft,  and  many  of  the  early  decisions  applying 
the  independent-determination  rule  in  confession  cases  came 


MILLER  v.  FENTON  111 

104  Opinion  of  the  Court 

to  the  Court  on  direct  appeal  from  state-court  judgments. 
The  rule,  however,  is  no  less  firmly  established  in  cases  com- 
ing to  the  federal  system  on  application  for  a  writ  of  habeas 
corpus.  Davis  v.  North  Carolina,  384  U.  S.  737  (1966),  re- 
solved the  issue  with  unmistakable  clarity.  There,  the  State 
had  admitted  into  evidence  a  confession  elicited  from  an  im- 
poverished, mentally  deficient  suspect  who  had  been  held 
incommunicado  for  16  days  with  barely  adequate  nourish- 
ment. Expressly  relying  on  the  direct-appeal  cases,  the 
Court  stated  unequivocally  that  state-court  determinations 
concerning  the  ultimate  question  of  the  voluntariness  of  a 
confession  are  not  binding  in  a  federal  habeas  corpus  proceed- 
ing. Id.,  at  741-742. 

Davis  was  decided  four  months  before  28  U.  S.  C. 
§2254(d)  was  signed  into  law.  Act  of  Nov.  2,  1966,  Pub.  L. 
89-711,  80  Stat.  1105.  Respondent  contends  that,  whatever 
may  have  been  the  case  prior  to  1966,  the  enactment  of 
§  2254(d)  in  that  year  fundamentally  altered  the  nature  of  fed- 
eral habeas  review  of  state  voluntariness  findings.  That 
suggestion  finds  no  support  in  this  Court's  decisions.  See, 
e.  g.,  Boulden  v.  Holman,  394  U.  S.  478,  480  (1969)  (finding 
confession  voluntary  after  making  "an  independent  study  of 
the  entire  record");  Frazier  v.  Cupp,  394  U.  S.  731,  739 
(1969)  (examining  "totality  of  the  circumstances"  to  assess 
admissibility  of  confession).  More  importantly,  the  history 
of  §2254(d)  undermines  any  argument  that  Congress  in- 
tended that  the  ultimate  question  of  the  admissibility  of  a 
confession  be  treated  a  "factual  issue"  within  the  meaning  of 
that  provision.  The  1966  amendment  was  an  almost  verba- 
tim codification  of  the  standards  delineated  in  Townsend  v. 
Sain,  372  U.  S.  293  (1963),  for  determining  when  a  district 
court  must  hold  an  evidentiary  hearing  before  acting  on  a  ha- 
beas petition.  When  a  hearing  is  not  obligatory,  Townsend 
held,  the  federal  court  "ordinarily  should  .  .  .  accept  the  facts 
as  found"  in  the  state  proceeding.  Id.,  at  318.  Congress 
elevated  that  exhortation  into  a  mandatory  presumption  of 


112  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

correctness.  But  there  is  absolutely  no  indication  that  it  in- 
tended to  alter  Townsend's  understanding  that  the  "ultimate 
constitutional  question"  of  the  admissibility  of  a  confession 
was  a  "mixed  questio[n]  of  fact  and  law"  subject  to  plenary 
federal  review.  Id.,  at  309,  and  n.  6. 

In  short,  an  unbroken  line  of  cases,  coming  to  this  Court 
both  on  direct  appeal  and  on  review  of  applications  to  lower 
federal  courts  for  a  writ  of  habeas  corpus,  forecloses  the 
Court  of  Appeals'  conclusion  that  the  "voluntariness"  of  a 
confession  merits  something  less  than  independent  federal 
consideration.  To  be  sure,  subsidiary  factual  questions, 
such  as  whether  a  drug  has  the  properties  of  a  truth  serum, 
id.,  at  306,  or  whether  in  fact  the  police  engaged  in  the 
intimidation  tactics  alleged  by  the  defendant,  LaVallee  v. 
Delle  Rose,  410  U.  S.  690,  693-695  (1973)  (per  curiam), 
are  entitled  to  the  §2254(d)  presumption.  And  the  federal 
habeas  court,  should,  of  course,  give  great  weight  to  the  con- 
sidered conclusions  of  a  coequal  state  judiciary.  Culombe  v. 
Connecticut,  367  U.  S.  568,  605  (1961)  (opinion  of  Frank- 
furter, J.).  But,  as  we  now  reaffirm,  the  ultimate  ques- 
tion whether,  under  the  totality  of  the  circumstances,  the 
challenged  confession  was  obtained  in  a  manner  compatible 
with  the  requirements  of  the  Constitution  is  a  matter  for 
independent  federal  determination. 

Ill 

The  Court  of  Appeals  recognized  that  treating  the  volun- 
tariness of  a  confession  as  an  issue  of  fact  was  difficult  to 
square  with  "fifty  years  of  caselaw"  in  this  Court.  741  F.  2d, 
at  1462.  It  believed,  however,  that  this  substantial  body  of 
contrary  precedent  was  not  controlling  in  light  of  our  more 
recent  decisions  addressing  the  scope  of  the  §  2254(d)  pre- 
sumption of  correctness.  See  Waimuright  v.  Witt,  469  U.  S. 
412,  429  (1985)  (trial  court's  determination  that  a  prospective 
juror  in  a  capital  case  was  properly  excluded  for  cause  enti- 
tled to  presumption);  Patton  v.  Yount,  467  U.  S.  1025  (1984) 


MILLER  u  FENTON  113 

104  Opinion  of  the  Court 

(impartiality  of  an  individual  juror);  Rushen  v.  Spain,  464 
U.  S.  114  (1983)  (per  curiam)  (effect  of  ex  parte  com- 
munication on  impartiality  of  individual  juror);  Maggio  v. 
Fulford,  462  U.  S.  Ill  (1983)  (per  curiam)  (competency  to 
stand  trial);  Marshall  v.  Lonberger,  459  U.  S.  422,  431-437 
(1983)  (determination  that  defendant  received  and  under- 
stood sufficient  notice  of  charges  against  him  to  render  guilty 
plea  voluntary).  We  acknowledge  that  the  Court  has  not 
charted  an  entirely  clear  course  in  this  area.  We  reject, 
however,  the  Court  of  Appeals'  conclusion  that  these  case- 
specific  holdings  tacitly  overturned  the  longstanding  rule 
that  the  voluntariness  of  a  confession  is  a  matter  for  inde- 
pendent federal  determination. 

In  the  §2254(d)  context,  as  elsewhere,  the  appropriate 
methodology  for  distinguishing  questions  of  fact  from  ques- 
tions of  law  has  been,  to  say  the  least,  elusive.  See  Bose 
Corp.  v.  Consumers  Union  of  United  States,  Inc.,  466  U.  S. 
485  (1984);  Baumgartner  v.  United  States,  322  U.  S.  665,  671 
(1944).  A  few  principles,  however,  are  by  now  well  estab- 
lished. For  example,  that  an  issue  involves  an  inquiry  into 
state  of  mind  is  not  at  all  inconsistent  with  treating  it  as 
a  question  of  fact.  See,  e.  g.,  Maggio  v.  Fulford,  supra. 
Equally  clearly,  an  issue  does  not  lose  its  factual  character 
merely  because  its  resolution  is  dispositive  of  the  ultimate 
constitutional  question.  See  Dayton  Board  of  Education  v. 
Brinkman,  443  U.  S.  526,  534  (1979)  (finding  of  intent  to  dis- 
criminate subject  to  "clearly  erroneous"  standard  of  review). 
But  beyond  these  elemental  propositions,  negative  in  form, 
the  Court  has  yet  to  arrive  at  "a  rule  or  principle  that  will 
unerringly  distinguish  a  factual  finding  from  a  legal  con- 
clusion." Pullman-Standard  v.  Swint,  456  U.  S.  273,  288 
(1982). 

Perhaps  much  of  the  difficulty  in  this  area  stems  from  the 
practical  truth  that  the  decision  to  label  an  issue  a  "question 
of  law,"  a  "question  of  fact,"  or  a  "mixed  question  of  law  and 
fact"  is  sometimes  as  much  a  matter  of  allocation  as  it  is  of 


114  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

analysis.  See  Monaghan,  Constitutional  Fact  Review,  85 
Colum.  L.  Rev.  229,  237  (1985).  At  least  in  those  instances 
in  which  Congress  has  not  spoken  and  in  which  the  issue  falls 
somewhere  between  a  pristine  legal  standard  and  a  simple 
historical  fact,  the  fact/law  distinction  at  times  has  turned  on 
a  determination  that,  as  a  matter  of  the  sound  administration 
of  justice,  one  judicial  actor  is  better  positioned  than  another 
to  decide  the  issue  in  question.  Where,  for  example,  as  with 
proof  of  actual  malice  in  First  Amendment  libel  cases,  the  rel- 
evant legal  principle  can  be  given  meaning  only  through  its 
application  to  the  particular  circumstances  of  a  case,  the 
Court  has  been  reluctant  to  give  the  trier  of  fact's  conclusions 
presumptive  force  and,  in  so  doing,  strip  a  federal  appellate 
court  of  its  primary  function  as  an  expositor  of  law.  See 
Base  Corp.  v.  Consumers  Union  of  United  States,  Inc.,  466 
U.  S.,  at  503.  Similarly,  on  rare  occasions  in  years  past  the 
Court  has  justified  independent  federal  or  appellate  review 
as  a  means  of  compensating  for  "perceived  shortcomings  of 
the  trier  of  fact  by  way  of  bias  or  some  other  factor.  ..." 
Id.,  at  518  (REHNQUIST,  J.,  dissenting).  See,  e.  g.,  Haynes 
v.  Washington,  373  U.  S.,  at  516;  Watts  v.  Indiana,  338 
U.  S.  49,  52  (1949)  (opinion  of  Frankfurter,  J.).  Cf.  Norris 
v.  Alabama,  294  U.  S.  587  (1935). 

In  contrast,  other  considerations  often  suggest  the  appro- 
priateness of  resolving  close  questions  concerning  the  status 
of  an  issue  as  one  of  "law"  or  "fact"  in  favor  of  extending 
deference  to  the  trial  court.  When,  for  example,  the  issue 
involves  the  credibility  of  witnesses  and  therefore  turns 
largely  on  an  evaluation  of  demeanor,  there  are  compelling 
and  familiar  justifications  for  leaving  the  process  of  applying 
law  to  fact  to  the  trial  court  and  according  its  determinations 
presumptive  weight.  Patton  v.  Yount,  supra,  and  Wain- 
wright  v.  Witt,  supra,  are  illustrative.  There  the  Court 
stressed  that  the  state  trial  judge  is  in  a  position  to  assess 
juror  bias  that  is  far  superior  to  that  of  federal  judges  review- 
ing an  application  for  a  writ  of  habeas  corpus.  Principally 


MILLER  v.  FENTON  115 

104  Opinion  of  the  Court 

for  that  reason,  the  decisions  held,  juror  bias  merits  treat- 
ment as  a  "factual  issue"  within  the  meaning  of  §  2254(d)  not- 
withstanding the  intimate  connection  between  such  deter- 
minations and  the  constitutional  guarantee  of  an  impartial 
jury. 

For  several  reasons  we  think  that  it  would  be  inappro- 
priate to  abandon  the  Court's  longstanding  position  that  the 
ultimate  question  of  the  admissibility  of  a  confession  merits 
treatment  as  a  legal  inquiry  requiring  plenary  federal  re- 
view.    We  note  at  the  outset  that  we  do  not  write  on  a  clean 
slate.     "Very  weighty  considerations  underlie  the  principle 
that    courts    should    not    lightly    overrule    past    decisions." 
Moragne  v.  States  Marine  Lines,  Inc.,  398  U.  S.  375,  403 
(1970).      Thus,  even  assuming  that  contemporary  consider- 
ations supported  respondent's  construction  of  the  statute, 
nearly  a  half  century  of  unwavering  precedent  weighs  heavily 
against  any  suggestion  that  we  now  discard  the  settled  rule 
in  this  area.     Moreover,  as  previously  noted,  Congress  pat- 
terned  §2254(d)   after    Townsend  v.    Sain,   372   U.  S.    293 
(1963),  a  case  that  clearly  assumed  that  the  voluntariness  of  a 
confession  was  an  issue  for  independent  federal  determina- 
tion.    Thus,  not  only  are  stare  decisis  concerns  compelling, 
but,  unlike  in  Marshall  v.  Lonberger,  459  U.  S.  422  (1983), 
Rushen  v.  Spain,  464  U.  S.  114  (1983),  or  any  of  our  other 
recent  §2254(d)  cases,  in  the  confession  context  we  have  the 
benefit  of  some  congressional  guidance  in  resolving  whether 
the  disputed  issue  falls  outside  of  the  scope  of  the  §  2254(d) 
presumption.     Although  the  history  of  that  provision  is  not 
without  its  ambiguities,  it  is  certainly  clear  enough  to  tip  the 
scales  in  favor  of  treating  the  voluntariness  of  a  confession  as 
beyond  the  reach  of  §  2254(d). 

In  addition  to  considerations  of  stare  decisis  and  congres- 
sional intent,  the  nature  of  the  inquiry  itself  lends  support 
to  the  conclusion  that  "voluntariness"  is  a  legal  question 
meriting  independent  consideration  in  a  federal  habeas  cor- 
pus proceeding.  Although  sometimes  framed  as  an  issue  of 


116  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

"psychological  fact,"  Culombe  v.  Connecticut,  367  U.  S.,  at 
603,  the  dispositive  question  of  the  voluntariness  of  a  confes- 
sion has  always  had  a  uniquely  legal  dimension.  It  is  telling 
that  in  confession  cases  coming  from  the  States,  this  Court 
has  consistently  looked  to  the  Due  Process  Clause  of  the 
Fourteenth  Amendment  to  test  admissibility.  See,  e.  g., 
Mincey  v.  Arizona,  437  U.  S. ,  at  402.  The  locus  of  the  right 
is  significant  because  it  reflects  the  Court's  consistently  held 
view  that  the  admissibility  of  a  confession  turns  as  much 
on  whether  the  techniques  for  extracting  the  statements,  as 
applied  to  this  suspect,  are  compatible  with  a  system  that 
presumes  innocence  and  assures  that  a  conviction  will  not  be 
secured  by  inquisitorial  means  as  on  whether  the  defendant's 
will  was  in  fact  overborne.  See,  e.  g.,  Gallegos  v.  Colorado, 
370  U.  S.  49,  51  (1962)  (suggesting  that  "a  compound  of  two 
influences"  requires  that  some  confessions  be  condemned); 
Culombe  v.  Connecticut,  supra,  at  605  (describing  voluntari- 
ness as  an  "amphibian").  This  hybrid  quality  of  the  volun- 
tariness inquiry,4  subsuming,  as  it  does,  a  "complex  of 
values,"  Blackburn  v.  Alabama,  361  U.  S.,  at  207,  itself  mili- 
tates against  treating  the  question  as  one  of  simple  historical 
fact. 

Putting  to  one  side  whether  "voluntariness"  is  analytically 
more  akin  to  a  fact  or  a  legal  conclusion,  the  practical  consid- 
erations that  have  led  us  to  find  other  issues  within  the  scope 
of  the  §  2254(d)  presumption  are  absent  in  the  confession  con- 
text. First,  unlike  the  impartiality  of  a  given  juror,  Patton 
v.  Yount,  467  U.  S.,  at  1036,  or  competency  to  stand  trial, 
Maggio  v.  Fulford,  462  U.  S.,  at  117,  assessments  of  credibil- 


4  The  voluntariness  rubric  has  been  variously  condemned  as  "useless," 
Paulson,  The  Fourteenth  Amendment  and  the  Third  Degree,  6  Stan.  L. 
Rev.  411,  430  (1954);  "perplexing,"  Grano,  Voluntariness,  Free  Will,  and 
the  Law  of  Confessions,  65  Va.  L.  Rev.  859,  863  (1979);  and  "legal  'double- 
talk/  "  A.  Beisel,  Control  Over  Illegal  Enforcement  of  the  Criminal  Law: 
Role  of  the  Supreme  Court  48  (1955).  See  generally  Y.  Kamisar,  Police 
Interrogation  and  Confessions  1-25  (1980). 


MILLER  v.  FENTON  117 

104  Opinion  of  the  Court 

ity  and  demeanor  are  not  crucial  to  the  proper  resolution  of 
the  ultimate  issue  of  "voluntariness."  Of  course,  subsidiary 
questions,  such  as  the  length  and  circumstances  of  the  in- 
terrogation, the  defendant's  prior  experience  with  the  legal 
process,  and  familiarity  with  the  Miranda  warnings,  often 
require  the  resolution  of  conflicting  testimony  of  police  and 
defendant.  The  law  is  therefore  clear  that  state-court  find- 
ings on  such  matters  are  conclusive  on  the  habeas  court  if 
fairly  supported  in  the  record  and  if  the  other  circumstances 
enumerated  in  §  2254(d)  are  inapplicable.  But  once  such  un- 
derlying factual  issues  have  been  resolved,  and  the  moment 
comes  for  determining  whether,  under  the  totality  of  the  cir- 
cumstances, the  confession  was  obtained  in  a  manner  consist- 
ent with  the  Constitution,  the  state-court  judge  is  not  in  an 
appreciably  better  position  than  the  federal  habeas  court  to 
make  that  determination. 

Second,  the  allocution  of  a  guilty  plea,  Marshall  v.  Lon- 
berger,  supra,  the  adjudication  of  competency  to  stand  trial, 
Maggio  v.  Fulford,  supra,  and  the  determination  of  juror 
bias,  Wainwright  v.  Witt,  469  U.  S.  412  (1985),  take  place  in 
open  court  on  a  full  record.  In  marked  contrast,  the  critical 
events  surrounding  the  taking  of  a  confession  almost  in- 
variably occur  in  a  secret  and  inherently  more  coercive  envi- 
ronment. Miranda  v.  Arizona,  384  U.  S.,  at  458.  These 
circumstances,  standing  alone,  cannot  be  dispositive  of  the 
question  whether  a  particular  issue  falls  within  the  reach 
of  §2254(d).  However,  together  with  the  inevitable  and 
understandable  reluctance  to  exclude  an  otherwise  reliable 
admission  of  guilt,  Jackson  v.  Denno,  378  U.  S.  368,  381 
(1964),  they  elevate  the  risk  that  erroneous  resolution  of 
the  voluntariness  question  might  inadvertently  frustrate  the 
protection  of  the  federal  right.  See  Haynes  v.  Washington, 
373  U.  S.,  at  516;  Ward  v.  Texas,  316  U.  S.  547  (1942).  We 
reiterate  our  confidence  that  state  judges,  no  less  than  their 
federal  counterparts,  will  properly  discharge  their  duty  to 
protect  the  constitutional  rights  of  criminal  defendants.  We 


118  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

note  only  that  in  the  confession  context,  independent  federal 
review  has  traditionally  played  an  important  parallel  role  in 
protecting  the  rights  at  stake  when  the  prosecution  secures  a 
conviction  through  the  defendant's  own  admissions. 

IV 

After  defending  at  length  its  conclusion  that  the  voluntari- 
ness  of  a  confession  was  entitled  to  the  §  2254(d)  presump- 
tion, and  after  carefully  analyzing  the  petitioner's  confession 
under  that  standard,  the  Court  of  Appeals  suggested  in  a 
brief  footnote  that  it  "would  reach  the  same  result"  even 
were  it  to  give  the  issue  plenary  consideration.  741  F.  2d,  at 
1467,  n.  21.  Inasmuch  as  it  is  not  clear  from  this  language 
that  the  court  did  in  fact  independently  evaluate  the  admissi- 
bility  of  the  confession,  and  because,  in  any  event,  we  think 
that  the  case  warrants  fuller  analysis  under  the  appropriate 
standard,  we  reverse  the  decision  below  and  remand  for 
further  proceedings  consistent  with  this  opinion. 

It  is  so  ordered. 

JUSTICE  REHNQUIST,  dissenting. 

The  Court  decides  that  the  voluntariness  of  a  confession  is 
not  an  issue  of  fact  presumed  to  be  correct  under  28  U.  S.  C. 
§2254(d).  I  think  it  is  difficult  to  sensibly  distinguish  the 
determination  that  a  particular  confession  was  voluntary 
from  the  determinations  which  we  have  held  to  be  entitled  to 
a  presumption  of  correctness  under  §  2254(d).  See  Sumner 
v.  Mata,  449  U.  S.  539  (1981);  Sumner  v.  Mata,  455  U.  S. 
591  (1982)  (per  curiam);  Marshall  v.  Lonberger,  459  U.  S. 
422,  431-437  (1983);  Maggio  v.  Fulford,  462  U.  S.  Ill  (1983) 
(per  curiam);  Rushen  v.  Spain,  464  U.  S.  114  (1983)  (per 
curiam);  Patton  v.  Yount,  467  U.  S.  1025,  1036-1038  (1984); 
and  Wainurright  v.  Witt,  469  U.  S.  412,  426-430  (1985). 
While  the  Court  relies  principally  on  stare  decisis  for  the  re- 
sult it  reaches  today,  almost  all  the  cases  upon  which  it  relies 
entailed  direct  review  by  this  Court  of  state-court  decisions 


MILLER  tiFENTON  119 

104  REHNQUIST,  J.,  dissenting 

rather  than  federal  habeas  review.  But  even  if  that  differ- 
ence were  deemed  immaterial,  it  seems  to  me  that  s tare  deti- 
sis  is  not  a  sufficient  reason  for  excluding  a  finding  as  to  the 
voluntariness  of  a  confession  from  the  presumption  embodied 
in  §2254(d).  All  of  the  recent  cases  cited  evince  a  more 
reasoned  approach  to  this  issue  than  the  interesting  but 
somewhat  mystical  exegesis  in  cases  such  as  Culmbe  v. 
Cvnnectwt,  367  U.  S.  568, 603-605  (1961)  (opinion  of  Frank- 
furter, J.). 

I  also  disagree  with  the  Court's  decision  to  remand  this 
case  to  the  Court  of  Appeals  for  a  second  run  at  the  voluntari- 
ness issue.  I  think  the  majority  of  that  court  made  it  clear 
that  it  had  evaluated  the  admissibiUty  of  the  confession  under 
the  correct  standard  as  defined  by  this  Court  today.  It  is 
unfortunate  that  petitioner's  challenge  to  his  conviction  for  a 
murder  which  occurred  12  years  ago  should  be  the  subject  of 
additional  and  unnecessary  litigation  and  delay. 

I  respectfully  dissent. 


120  OCTOBER  TERM,  1985 

Per  Curiam  474  U.  S. 

LAKE  COAL  CO.,  INC.  v.  ROBERTS  &  SCHAEFER  CO. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  SIXTH  CIRCUIT 

No.  84-1240.    Argued  October  15,  1985-Decided  December  3,  1985 
Held:  The  parties'  motion  requesting  decision  of  the  questions  presented 

in  the  petition  for  certiorari  despite  settlement  of  the  underlying  causes 

of  action  is  denied;  the  Court  of  Appeals'  judgment  is  vacated;  and  the 

case  is  remanded  for  dismissal  of  the  cause  as  moot. 
751  F.  2d  386,  vacated  and  remanded. 

Ronald  G.  Polly  argued  the  cause  for  petitioner.  With 
him  on  the  briefs  was  Gene  Smallwood,  Jr. 

C.  Kilmer  Combs  argued  the  cause  and  filed  a  brief  for 
respondent. 

PER  CURIAM. 

The  motion  of  the  parties  requesting  the  Court  to  decide 
the  questions  presented  in  the  petition  for  writ  of  certiorari 
despite  complete  settlement  of  the  underlying  causes  of 
action  is  denied.  See  DeFunis  v.  Odegaard,  416  U.  S.  312 
(1974). 

The  judgment  of  the  United  States  Court  of  Appeals  for 
the  Sixth  Circuit  is  vacated,  and  the  case  is  remanded  to 
the  United  States  District  Court  for  the  Eastern  District  of 
Kentucky  with  instructions  to  dismiss  the  cause  as  moot. 


UNITED  STATES  v.  RIVERSIDE  BAYVIEW  HOMES,  INC.      121 

Syllabus 


UNITED  STATES  v.  RIVERSIDE  BAYVIEW 
HOMES,  INC.,  ET  AL. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  SIXTH  CIRCUIT 

No.  84-701.     Argued  October  16,  1985— Decided  December  4,  1985 

The  Clean  Water  Act  prohibits  any  discharge  of  dredged  or  fill  materials 
into  "navigable  waters" — defined  as  the  "waters  of  the  United  States" — 
unless  authorized  by  a  permit  issued  by  the  Army  Corps  of  Engineers 
(Corps).  Construing  the  Act  to  cover  all  "freshwater  wetlands"  that  are 
adjacent  to  other  covered  waters,  the  Corps  issued  a  regulation  defining 
such  wetlands  as  "those  areas  that  are  inundated  or  saturated  by  surface 
or  ground  water  at  a  frequency  and  duration  sufficient  to  support,  and 
that  under  normal  circumstances  do  support,  a  prevalence  of  vegetation 
typically  adapted  for  life  in  saturated  soil  conditions."  After  respondent 
Riverside  Bayview  Homes,  Inc.  (hereafter  respondent),  began  placing 
fill  materials  on  its  property  near  the  shores  of  Lake  St.  Clair,  Michigan, 
the  Corps  filed  suit  in  Federal  District  Court  to  enjoin  respondent  from 
filling  its  property  without  the  Corps'  permission.  Finding  that  re- 
spondent's property  was  characterized  by  the  presence  of  vegetation 
requiring  saturated  soil  conditions  for  growth,  that  the  source  of  such 
soil  conditions  was  ground  water,  and  that  the  wetland  on  the  property 
was  adjacent  to  a  body  of  navigable  water,  the  District  Court  held  that 
the  property  was  wetland  subject  to  the  Corps'  permit  authority.  The 
Court  of  Appeals  reversed,  construing  the  Corps'  regulation  to  exclude 
from  the  category  of  adjacent  wetlands — and  hence  from  that  of  "waters 
of  the  United  States"— wetlands  that  are  not  subject  to  flooding  by  adja- 
cent navigable  waters  at  a  frequency  sufficient  to  support  the  growth  of 
aquatic  vegetation.  The  court  took  the  view  that  the  Corps'  authority 
under  the  Act  and  its  implementing  regulations  must  be  narrowly  con- 
strued to  avoid  a  taking  without  just  compensation  in  violation  of  the 
Fifth  Amendment.  Under  this  construction,  it  was  held  that  respond- 
ent's property  was  not  within  the  Corps'  jurisdiction,  because  its  semi- 
aquatic  characteristics  were  not  the  result  of  frequent  flooding  by  the 
nearby  navigable  waters,  and  that  therefore  respondent  was  free  to  fill 
the  property  without  obtaining  a  permit. 

Held: 

I.  The  Court  of  Appeals  erred  in  concluding  that  a  narrow  reading  of 
the  Corps'  regulatory  jurisdiction  over  wetlands  was  necessary  to  avoid 
a  taking  problem.  Neither  the  imposition  of  the  permit  requirement 


122  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

itself  nor  the  denial  of  a  permit  necessarily  constitutes  a  taking. 
And  the  Tucker  Act  is  available  to  provide  compensation  for  takings 
that  may  result  from  the  Corps'  exercise  of  jurisdiction  over  wetlands. 
Pp.  126-129. 

2.  The  District  Court's  findings  are  not  clearly  erroneous  and  plainly 
bring  respondent's  property  within  the  category  of  wetlands  and  thus  of 
the  "waters  of  the  United  States"  as  defined  by  the  regulation  in  ques- 
tion.    Pp.  129-131. 

3.  The  language,  policies,  and  history  of  the  Clean  Water  Act  compel  a 
finding  that  the  Corps  has  acted  reasonably  in  interpreting  the  Act  to 
require  permits  for  the  discharge  of  material  into  wetlands  adjacent  to 
other  "waters  of  the  United  States."     Pp.  131-139. 

729  F.  2d  391,  reversed. 

WHITE,  J.,  delivered  the  opinion  for  a  unanimous  Court. 

Kathryn  A.  Oberly  argued  the  cause  for  the  United  States. 
With  her  on  the  briefs  were  former  Solicitor  General  Lee, 
Acting  Solicitor  General  Fried,  Assistant  Attorney  General 
Habicht,  Deputy  Solicitor  General  Claiborne,  and  Anne  S. 
Almy. 

Edgar  B.  Washburn  argued  the  cause  for  respondents. 
With  him  on  the  brief  was  Richard  K.  Gienapp.  * 

*Briefs  of  amid  curiae  urging  reversal  were  filed  for  the  National 
Wildlife  Federation  et  al.  by  Jerry  Jackson,  Frank  J.  Kelley,  Attorney 
General  of  Michigan,  and  Louis  Caruso,  Solicitor  General;  and  for  the 
State  of  California  et  al.  by  John  K.  Van  de  Kamp,  Attorney  General  of 
California,  N.  Gregory  Taylor  and  Theodora  Berger,  Assistant  Attorneys 
General,  and  Steven  H.  Kaufmann  and  David  W.  Hamilton,  Deputy  At- 
torneys General,  Joseph  I.  Lieberman,  Attorney  General  of  Connecticut, 
Michael  A.  Lilly,  Attorney  General  of  Hawaii,  Neil  F.  Hartigan,  Attorney 
General  of  Illinois,  and  Jill  Wine-Banks,  Solicitor  General,  William  J. 
Guste,  Jr.,  Attorney  General  of  Louisiana,  Stephen  H.  Sachs,  Attorney 
General  of  Maryland,  Hubert  H.  Humphrey  III,  Attorney  General  of  Min- 
nesota, William  L.  Webster,  Attorney  General  of  Missouri,  Mike  Greely, 
Attorney  General  of  Montana,  Robert  M.  Spire,  Attorney  General  of 
Nebraska,  Paul  Bardacke,  Attorney  General  of  New  Mexico,  Lacy  H. 
Thomburg,  Attorney  General  of  North  Carolina,  Arlene  Violet,  Attorney 
General  of  Rhode  Island,  W.  /.  Michael  Cody,  Attorney  General  of  Ten- 
nessee, Jeffrey  L.  Amestoy,  Attorney  General  of  Vermont,  Charlie  Brown, 
Attorney  General  of  West  Virginia,  and  Bronson  C.  La  Follette,  Attorney 
General  of  Wisconsin. 


UNITED  STATES  v.  RIVERSIDE  BAYVIEW  HOMES,  INC.      123 
121  Opinion  of  the  Court 

JUSTICE  WHITE  delivered  the  opinion  of  the  Court. 

This  case  presents  the  question  whether  the  Clean  Water 
Act  (CWA),  33  U.  S.  C.  §1251  et  seq.,  together  with  cer- 
tain regulations  promulgated  under  its  authority  by  the  Army 
Corps  of  Engineers,  authorizes  the  Corps  to  require  landown- 
ers to  obtain  permits  from  the  Corps  before  discharging  fill 
material  into  wetlands  adjacent  to  navigable  bodies  of  water 
and  their  tributaries. 

I 

The  relevant  provisions  of  the  Clean  Water  Act  originated 
in  the  Federal  Water  Pollution  Control  Act  Amendments  of 
1972,  86  Stat.  816,  and  have  remained  essentially  unchanged 
since  that  time.  Under  §§301  and  502  of  the  Act,  33 
U.  S.  C.  §§  1311  and  1362,  any  discharge  of  dredged  or  fill 
materials  into  "navigable  waters" — defined  as  the  "waters  of 
the  United  States" — is  forbidden  unless  authorized  by  a  per- 
mit issued  by  the  Corps  of  Engineers  pursuant  to  §  404,  33 
U.  S.  C.  §  1344. l  After  initially  construing  the  Act  to  cover 
only  waters  navigable  in  fact,  in  1975  the  Corps  issued  in- 
terim final  regulations  redefining  "the  waters  of  the  United 
States"  to  include  not  only  actually  navigable  waters  but  also 
tributaries  of  such  waters,  interstate  waters  and  their  tribu- 
taries, and  nonnavigable  intrastate  waters  whose  use  or  mis- 
use could  affect  interstate  commerce.  40  Fed.  Reg.  31320 


Briefs  of  amid  curiae  urging  affirmance  were  filed  for  the  American  Pe- 
troleum Institute  by  Stark  Ritchie  and  James  K.  Jackson;  for  the  Citizens 
of  Chincoteague  for  a  Reasonable  Wetlands  Policy  by  Richard  R.  Nageotte; 
for  the  Mid-Atlantic  Developers  Association  by  Kenneth  D.  McPherson; 
and  for  the  Pacific  Legal  Foundation  et  al.  by  Ronald  A.  Zumbrun  and 
Sam  Kazman. 

R.  Sarah  Compton  and  Robin  S.  Conrad  filed  a  brief  for  the  Chamber  of 
Commerce  of  the  United  States  as  amicus  curiae. 

1With  respect  to  certain  waters,  the  Corps'  authority  may  be  trans- 
ferred to  States  that  have  devised  federally  approved  permit  programs. 
CWA  §  404(g),  as  added,  91  Stat.  1600,  33  U.  S.  C.  §  1344(g).  Absent 
such  an  approved  program,  the  Corps  retains  jurisdiction  under  §  404  over 
all  "waters  of  the  United  States." 


124  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

(1975).  More  importantly  for  present  purposes,  the  Corps 
construed  the  Act  to  cover  all  "freshwater  wetlands"  that 
were  adjacent  to  other  covered  waters.  A  "freshwater  wet- 
land" was  defined  as  an  area  that  is  "periodically  inundated" 
and  is  "normally  characterized  by  the  prevalence  of  vegeta- 
tion that  requires  saturated  soil  conditions  for  growth  and 
reproduction."  33  CFR  §209.120(d)(2)<7&>>  (1976).  In  1977, 
the  Corps  refined  its  definition  of  wetlands  by  eliminating 
the  reference  to  periodic  inundation  and  making  other  minor 
changes.  The  1977  definition  reads  as  follows: 

"The  term  'wetlands*  means  those  areas  that  are  in- 
undated or  saturated  by  surface  or  ground  water  at  a 
frequency  and  duration  sufficient  to  support,  and  that 
under  normal  circumstances  do  support,  a  prevalence  of 
vegetation  typically  adapted  for  life  in  saturated  soil  con- 
ditions. Wetlands  generally  include  swamps,  marshes, 
bogs  and  similar  areas."  33  CFR  §323.2(c)  (1978). 

In  1982,  the  1977  regulations  were  replaced  by  substantively 
identical  regulations  that  remain  in  force  today.  See  33 
CFR  §  323.2  (1985).2 

Respondent  Riverside  Bayview  Homes,  Inc.  (hereafter  re- 
spondent), owns  80  acres  of  low-lying,  marshy  land  near  the 
shores  of  Lake  St.  Clair  in  Macomb  County,  Michigan.  In 
1976,  respondent  began  to  place  fill  materials  on  its  property 
as  part  of  its  preparations  for  construction  of  a  housing  devel- 
opment. The  Corps  of  Engineers,  believing  that  the  prop- 
erty was  an  "adjacent  wetland"  under  the  1975  regulation 
defining  "waters  of  the  United  States,"  filed  suit  in  the 
United  States  District  Court  for  the  Eastern  District  of 
Michigan,  seeking  to  enjoin  respondent  from  filling  the  prop- 
erty without  the  permission  of  the  Corps. 


2  The  regulations  also  cover  certain  wetlands  not  necessarily  adjacent  to 
other  waters.  See  33  CFR  §§  323.2(a)(2)  and  (3)  (1985).  These  provisions 
are  not  now  before  us. 


UNITED  STATES  v.  RIVERSIDE  BAYVIEW  HOMES,  INC.      125 
121  Opinion  of  the  Court 

The  District  Court  held  that  the  portion  of  respondent's 
property  lying  below  575.5  feet  above  sea  level  was  a  covered 
wetland  and  enjoined  respondent  from  filling  it  without  a 
permit.  Civ.  No.  77-70041  (Feb.  24,  1977)  (App.  to  Pet. 
for  Cert.  22a);  Civ.  No.  77-70041  (June  21,  1979)  (App.  to 
Pet.  for  Cert.  32a).  Respondent  appealed,  and  the  Court  of 
Appeals  remanded  for  consideration  of  the  effect  of  the  inter- 
vening 1977  amendments  to  the  regulation.  615  F.  2d  1363 
(1980).  On  remand,  the  District  Court  again  held  the  prop- 
erty to  be  a  wetland  subject  to  the  Corps'  permit  authority. 
Civ.  No.  77-70041  (May  10,  1981)  (App.  to  Pet.  for  Cert. 
42a). 

Respondent  again  appealed,  and  the  Sixth  Circuit  re- 
versed. 729  F.  2d  391  (1984).  The  court  construed  the 
Corps'  regulation  to  exclude  from  the  category  of  adjacent 
wetlands— and  hence  from  that  of  "waters  of  the  United 
States" — wetlands  that  were  not  subject  to  flooding  by  adja- 
cent navigable  waters  at  a  frequency  sufficient  to  support  the 
growth  of  aquatic  vegetation.  The  court  adopted  this  con- 
struction of  the  regulation  because,  in  its  view,  a  broader  def- 
inition of  wetlands  might  result  in  the  taking  of  private  prop- 
erty without  just  compensation.  The  court  also  expressed 
its  doubt  that  Congress,  in  granting  the  Corps  jurisdiction  to 
regulate  the  filling  of  "navigable  waters,"  intended  to  allow 
regulation  of  wetlands  that  were  not  the  result  of  flooding  by 
navigable  waters.3  Under  the  court's  reading  of  the  regula- 
tion, respondent's  property  was  not  within  the  Corps'  juris- 
diction, because  its  semiaquatic  characteristics  were  not  the 
result  of  frequent  flooding  by  the  nearby  navigable  waters. 
Respondent  was  therefore  free  to  fill  the  property  without 
obtaining  a  permit. 


8  In  denying  the  Government's  petition  for  rehearing,  the  panel  reit- 
erated somewhat  more  strongly  its  belief  that  the  Corps'  construction  of  its 
regulation  was  "overbroad  and  inconsistent  with  the  language  of  the  Act. " 
729  F.  2d,  at  401. 


126  OCTOBER  TERM,  1986 

Opinion  of  the  Court  474  U.  S. 

We  granted  certiorari  to  consider  the  proper  interpretation 
of  the  Corps'  regulation  defining  "waters  of  the  United 
States"  and  the  scope  of  the  Corps'  jurisdiction  under  the 
Clean  Water  Act,  both  of  which  were  called  into  question  by 
the  Sixth  Circuit's  ruling.  469  U.  S.  1206  (1985).  We  now 
reverse. 

II 

The  question  whether  the  Corps  of  Engineers  may  demand 
that  respondent  obtain  a  permit  before  placing  fill  material  on 
its  property  is  primarily  one  of  regulatory  and  statutory  in- 
terpretation: we  must  determine  whether  respondent's  prop- 
erty is  an  "adjacent  wetland"  within  the  meaning  of  the  appli- 
cable regulation,  and,  if  so,  whether  the  Corps'  jurisdiction 
over  "navigable  waters"  gives  it  statutory  authority  to  regu- 
late discharges  of  fill  material  into  such  a  wetland.  In  this 
connection,  we  first  consider  the  Court  of  Appeals'  position 
that  the  Corps'  regulatory  authority  under  the  statute  and  its 
implementing  regulations  must  be  narrowly  construed  to 
avoid  a  taking  without  just  compensation  in  violation  of  the 
Fifth  Amendment. 

We  have  frequently  suggested  that  governmental  land-use 
regulation  may  under  extreme  circumstances  amount  to  a 
"taking"  of  the  affected  property.  See,  e.  g.,  Williamson 
County  Regional  Planning  Comm'n  v.  Hamilton  Bank,  473 
U.  S.  172  (1985);  Penn  Central  Transportation  Co.  v.  New 
York  City,  438  U.  S.  104  (1978).  We  have  never  precisely 
defined  those  circumstances,  see  id,,  at  123-128;  but  our  gen- 
eral approach  was  summed  up  in  Agins  v.  Tiburon,  447  U.  S. 
255,  260  (1980),  where  we  stated  that  the  application  of  land- 
use  regulations  to  a  particular  piece  of  property  is  a  taking 
only  "if  the  ordinance  does  not  substantially  advance  legiti- 
mate state  interests  ...  or  denies  an  owner  economically  via- 
ble use  of  his  land."  Moreover,  we  have  made  it  quite  clear 
that  the  mere  assertion  of  regulatory  jurisdiction  by  a  gov- 
ernmental body  does  not  constitute  a  regulatory  taking.  See 
Hodel  v.  Virginia  Surface  Mining  &  Reclamation  Assn.,  452 


UNITED  STATES  v.  RIVERSIDE  BAYVIEW  HOMES,  INC.      127 
121  Opinion  of  the  Court 

U.  S.  264,  293-297  (1981).  The  reasons  are  obvious.  A  re- 
quirement that  a  person  obtain  a  permit  before  engaging  in  a 
certain  use  of  his  or  her  property  does  not  itself  "take"  the 
property  in  any  sense:  after  all,  the  very  existence  of  a  per- 
mit system  implies  that  permission  may  be  granted,  leaving 
the  landowner  free  to  use  the  property  as  desired.  More- 
over, even  if  the  permit  is  denied,  there  may  be  other  viable 
uses  available  to  the  owner.  Only  when  a  permit  is  denied 
and  the  effect  of  the  denial  is  to  prevent  "economically  viable" 
use  of  the  land  in  question  can  it  be  said  that  a  taking  has 
occurred. 

If  neither  the  imposition  of  the  permit  requirement  itself 
nor  the  denial  of  a  permit  necessarily  constitutes  a  taking,  it 
follows  that  the  Court  of  Appeals  erred  in  concluding  that  a 
narrow  reading  of  the  Corps'  regulatory  jurisdiction  over 
wetlands  was  "necessary"  to  avoid  "a  serious  taking  prob- 
lem." 729  F.  2d,  at  398.4  We  have  held  that,  in  general, 
"[e]quitable  relief  is  not  available  to  enjoin  an  alleged  taking 
of  private  property  for  a  public  use,  duly  authorized  by  law, 


4  Even  were  the  Court  of  Appeals  correct  in  concluding  that  a  narrow- 
ing construction  of  the  regulation  is  necessary  to  avoid  takings  of  property 
through  the  application  of  the  permit  requirement,  the  construction 
adopted— which  requires  a  showing  of  frequent  flooding  before  property 
may  be  classified  as  a  wetland— is  hardly  tailored  to  the  supposed  diffi- 
culty. Whether  the  denial  of  a  permit  would  constitute  a  taking  in  any 
given  case  would  depend  upon  the  effect  of  the  denial  on  the  owner's  ability 
to  put  the  property  to  productive  use.  Whether  the  property  was  fre- 
quently flooded  would  have  no  particular  bearing  on  this  question,  for 
overbroad  regulation  of  even  completely  submerged  property  may  consti- 
tute a  taking.  See,  e.  g.,  Kaiser  Aetna  v.  United  States,  444  U.  S.  164 
(1979).  Indeed,  it  may  be  more  likely  that  denying  a  permit  to  fill  fre- 
quently flooded  property  will  prevent  economically  viable  use  of  the  prop- 
erty than  denying  a  permit  to  fill  property  that  is  wet  but  not  flooded.  Of 
course,  by  excluding  a  large  chunk  of  the  Nation's  wetlands  from  the  regu- 
latory definition,  the  Court  of  Appeals'  construction  might  tend  to  limit  the 
gross  number  of  takings  that  the  permit  program  would  otherwise  entail; 
but  the  construction  adopted  still  bears  an  insufficiently  precise  relation- 
ship with  the  problem  it  seeks  to  avoid. 


128  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

when  a  suit  for  compensation  can  be  brought  against  the  sov- 
ereign subsequent  to  a  taking."  Ruckelshaus  v.  Monsanto 
Co.,  467  U.  S.  986,  1016  (1984)  (footnote  omitted).  This 
maxim  rests  on  the  principle  that  so  long  as  compensation 
is  available  for  those  whose  property  is  in  fact  taken,  the 
governmental  action  is  not  unconstitutional.  Williamson 
County,  supra,  at  194-195.  For  precisely  the  same  reason, 
the  possibility  that  the  application  of  a  regulatory  program 
may  in  some  instances  result  in  the  taking  of  individual  pieces 
of  property  is  no  justification  for  the  use  of  narrowing  con- 
structions to  curtail  the  program  if  compensation  will  in  any 
event  be  available  in  those  cases  where  a  taking  has  oc- 
curred. Under  such  circumstances,  adoption  of  a  narrowing 
construction  does  not  constitute  avoidance  of  a  constitutional 
difficulty,  cf.  Ashwander  v.  TVA,  297  U.  S.  288,  341-356 
(1936)  (Brandeis,  J. ,  concurring);  it  merely  frustrates  permis- 
sible applications  of  a  statute  or  regulation.5  Because  the 
Tucker  Act,  28  U.  S.  C.  §  1491,  which  presumptively  sup- 
plies a  means  of  obtaining  compensation  for  any  taking  that 
may  occur  through  the  operation  of  a  federal  statute,  see 
Ruckelshaus  v.  Monsanto  Co.,  supra,  at  1017,  is  available  to 
provide  compensation  for  takings  that  may  result  from  the 
Corps'  exercise  of  jurisdiction  over  wetlands,  the  Court  of 
Appeals'  fears  that  application  of  the  Corps'  permit  program 
might  result  in  a  taking  did  not  justify  the  court  in  adopting  a 


6  United  States  v.  Security  Industrial  Bank,  459  U.  S.  70  (1982),  in 
which  we  adopted  a  narrowing  construction  of  a  statute  to  avoid  a  taking 
difficulty,  is  not  to  the  contrary.  In  that  case,  the  problem  was  that  there 
was  a  substantial  argument  that  retroactive  application  of  a  particular  pro- 
vision of  the  Bankruptcy  Code  would  in  every  case  constitute  a  taking;  the 
solution  was  to  avoid  the  difficulty  by  construing  the  statute  to  apply  only 
prospectively.  Such  an  approach  is  sensible  where  it  appears  that  there  is 
an  identifiable  class  of  cases  in  which  application  of  a  statute  will  necessar- 
ily constitute  a  taking.  As  we  have  observed,  this  is  not  such  a  case:  there 
is  no  identifiable  set  of  instances  in  which  mere  application  of  the  permit 
requirement  will  necessarily  or  even  probably  constitute  a  taking.  The 
approach  of  adopting  a  limiting  construction  is  thus  unwarranted. 


UNITED  STATES  v.  RIVERSIDE  BAYVIEW  HOMES,  INC.      129 
121  Opinion  of  the  Court 

more  limited  view  of  the  Corps'  authority  than  the  terms  of 
the  relevant  regulation  might  otherwise  support.6 

Ill 

Purged  of  its  spurious  constitutional  overtones,  the  ques- 
tion whether  the  regulation  at  issue  requires  respondent  to 
obtain  a  permit  before  filling  its  property  is  an  easy  one. 
The  regulation  extends  the  Corps'  authority  under  §  404  to  all 
wetlands  adjacent  to  navigable  or  interstate  waters  and  their 
tributaries.  Wetlands,  in  turn,  are  defined  as  lands  that  are 
"inundated  or  saturated  by  surface  or  ground  water  at  a  fre- 
quency and  duration  sufficient  to  support,  and  that  under 
normal  circumstances  do  support,  a  prevalence  of  vegetation 
typically  adapted  for  life  in  saturated  soil  conditions."  33 
CFR  §  323.2(c)  (1985)  (emphasis  added).  The  plain  language 
of  the  regulation  refutes  the  Court  of  Appeals'  conclusion 
that  inundation  or  "frequent  flooding"  by  the  adjacent  body 
of  water  is  a  sine  qua  non  of  a  wetland  under  the  regulation. 
Indeed,  the  regulation  could  hardly  state  more  clearly  that 
saturation  by  either  surface  or  ground  water  is  sufficient  to 
bring  an  area  within  the  category  of  wetlands,  provided  that 

6  Because  the  Corps  has  now  denied  respondent  a  permit  to  fill  its  prop- 
erty, respondent  may  well  have  a  ripe  claim  that  a  taking  has  occurred. 
On  the  record  before  us,  however,  we  have  no  basis  for  evaluating  this 
claim,  because  no  evidence  has  been  introduced  that  bears  on  the  ques- 
tion of  the  extent  to  which  denial  of  a  permit  to  fill  this  property  will 
prevent  economically  viable  uses  of  the  property  or  frustrate  reasonable 
investment-backed  expectations.  In  any  event,  this  lawsuit  is  not  the 
proper  forum  for  resolving  such  a  dispute:  if  the  Corps  has  indeed  effec- 
tively taken  respondent's  property,  respondent's  proper  course  is  not  to 
resist  the  Corps'  suit  for  enforcement  by  denying  that  the  regulation  cov- 
ers the  property,  but  to  initiate  a  suit  for  compensation  in  the  Claims 
Court.  In  so  stating,  of  course,  we  do  not  rule  that  respondent  will  be 
entitled  to  compensation  for  any  temporary  denial  of  use  of  its  property 
should  the  Corps  ultimately  relent  and  allow  it  to  be  filled.  We  have  not 
yet  resolved  the  question  whether  compensation  is  a  constitutionally  man- 
dated remedy  for  "temporary  regulatory  takings,"  see  Williamson  County 
Planning  Comm'n  v.  Hamilton  Bank,  473  U.  S.  172  (1985),  and  this  case 
provides  no  occasion  for  deciding  the  issue. 


130  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

the  saturation  is  sufficient  to  and  does  support  wetland 
vegetation. 

The  history  of  the  regulation  underscores  the  absence  of 
any  requirement  of  inundation.  The  interim  final  regulation 
that  the  current  regulation  replaced  explicitly  included  a 
requirement  of  "periodic]  inundation."  33  CFR  §209.120- 
(d)(2)(h)  (1976).  In  deleting  the  reference  to  "periodic  inun- 
dation" from  the  regulation  as  finally  promulgated,  the  Corps 
explained  that  it  was  repudiating  the  interpretation  of  that 
language  "as  requiring  inundation  over  a  record  period  of 
years."  42  Fed.  Reg.  37128  (1977).  In  fashioning  its  own 
requirement  of  "frequent  flooding"  the  Court  of  Appeals  im- 
properly reintroduced  into  the  regulation  precisely  what  the 
Corps  had  excised.7 

Without  the  nonexistent  requirement  of  frequent  flooding, 
the  regulatory  definition  of  adjacent  wetlands  covers  the 
property  here.  The  District  Court  found  that  respondent's 
property  was  "characterized  by  the  presence  of  vegetation 
that  requires  saturated  soil  conditions  for  growth  and  re- 


7  The  Court  of  Appeals  seems  also  to  have  rested  its  frequent-flooding 
requirement  on  the  language  in  the  regulation  stating  that  wetlands  en- 
compass those  areas  that  "under  normal  circumstances  do  support"  aquatic 
or  semiaquatic  vegetation.  In  the  preamble  to  the  final  regulation,  the 
Corps  explained  that  this  language  was  intended  in  part  to  exclude  areas 
characterized  by  the  "abnormal  presence  of  aquatic  vegetation  in  a  non- 
aquatic  area."  42  Fed.  Reg.  37128  (1977).  Apparently,  the  Court  of  Ap- 
peals concluded  that  the  growth  of  wetlands  vegetation  in  soils  saturated 
by  ground  water  rather  than  flooded  by  waters  emanating  from  an  adja- 
cent navigable  water  or  its  tributaries  was  "abnormal"  within  the  meaning 
of  the  preamble.  This  interpretation  is  untenable  in  light  of  the  explicit 
statements  in  both  the  regulation  and  its  preamble  that  areas  saturated  by 
ground  water  can  fall  within  the  category  of  wetlands.  It  would  be  non- 
sensical for  the  Corps  to  define  wetlands  to  include  such  areas  and  then  in 
the  same  sentence  exclude  them  on  the  ground  that  the  presence  of  wet- 
land vegetation  in  such  areas  was  abnormal.  Evidently,  the  Corps  had 
something  else  in  mind  when  it  referred  to  "abnormal"  growth  of  wetlands 
vegetation— namely,  the  aberrational  presence  of  such  vegetation  in  dry, 
upland  areas. 


UNITED  STATES  v.  RIVERSIDE  BAYVIEW  HOMES,  INC.      131 
121  Opinion  of  the  Court 

production,"  App.  to  Pet.  for  Cert.  24a,  and  that  the  source 
of  the  saturated  soil  conditions  on  the  property  was  ground 
water.  There  is  no  plausible  suggestion  that  these  findings 
are  clearly  erroneous,  and  they  plainly  bring  the  property 
within  the  category  of  wetlands  as  defined  by  the  current 
regulation.  In  addition,  the  court  found  that  the  wetland 
located  on  respondent's  property  was  adjacent  to  a  body  of 
navigable  water,  since  the  area  characterized  by  saturated 
soil  conditions  and  wetland  vegetation  extended  beyond  the 
boundary  of  respondent's  property  to  Black  Creek,  a  naviga- 
ble waterway.  Again,  the  court's  finding  is  not  clearly  erro- 
neous. Together,  these  findings  establish  that  respondent's 
property  is  a  wetland  adjacent  to  a  navigable  waterway. 
Hence,  it  is  part  of  the  "waters  of  the  United  States"  as  de- 
fined by  33  CFR  §323.2  (1985),  and  if  the  regulation  itself  is 
valid  as  a  construction  of  the  term  '^waters  of  the  United 
States"  as  used  in  the  Clean  Water  Act,  a  question  which  we 
now  address,  the  property  falls  within  the  scope  of  the  Corps' 
jurisdiction  over  "navigable  waters"  under  §  404  of  the  Act. 

IV 
A 

An  agency's  construction  of  a  statute  it  is  charged  with 
enforcing  is  entitled  to  deference  if  it  is  reasonable  and  not 
in  conflict  with  the  expressed  intent  of  Congress.  Chemical 
Manufacturers  Assn.  v.  Natural  Resources  Defense  Coun- 
cil, Inc.,  470  U.  S.  116,  125  (1985);  Chevron  U.  S.  A.  Inc. 
v.  Natural  Resources  Defense  Council,  Inc.,  467  U.  S.  837, 
842-845  (1984).  Accordingly,  our  review  is  liniited  to  the 
question  whether  it  is  reasonable,  in  light  of  the  language, 
policies,  and  legislative  history  of  the  Act  for  the  Corps  to 
exercise  jurisdiction  over  wetlands  adjacent  to  but  not  reg- 
ularly flooded  by  rivers,  streams,  and  other  hydrographic 
features  more  conventionally  identifiable  as  "waters."8 

8  We  are  not  called  upon  to  address  the  question  of  the  authority  of  the 
Corps  to  regulate  discharges  of  fill  material  into  wetlands  that  are  not  adja- 


132  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

On  a  purely  linguistic  level,  it  may  appear  unreasonable  to 
classify  'lands,"  wet  or  otherwise,  as  "waters."  Such  a  sim- 
plistic response,  however,  does  justice  neither  to  the  problem 
faced  by  the  Corps  in  defining  the  scope  of  its  authority  under 
§  404(a)  nor  to  the  realities  of  the  problem  of  water  pollution 
that  the  Clean  Water  Act  was  intended  to  combat.  In  deter- 
mining the  limits  of  its  power  to  regulate  discharges  under 
the  Act,  the  Corps  must  necessarily  choose  some  point  at 
which  water  ends  and  land  begins.  Our  common  experience 
tells  us  that  this  is  often  no  easy  task:  the  transition  from 
water  to  solid  ground  is  not  necessarily  or  even  typically  an 
abrupt  one.  Rather,  between  open  waters  and  dry  land  may 
lie  shallows,  marshes,  mudflats,  swamps,  bogs— in  short,  a 
huge  array  of  areas  that  are  not  wholly  aquatic  but  neverthe- 
less fall  far  short  of  being  dry  land.  Where  on  this  contin- 
uum to  find  the  limit  of  "waters"  is  far  from  obvious. 

Faced  with  such  a  problem  of  defining  the  bounds  of  its 
regulatory  authority,  an  agency  may  appropriately  look  to 
the  legislative  history  and  underlying  policies  of  its  statutory 
grants  of  authority.  Neither  of  these  sources  provides  un- 
ambiguous guidance  for  the  Corps  in  this  case,  but  together 
they  do  support  the  reasonableness  of  the  Corps'  approach  of 
defining  adjacent  wetlands  as  "waters"  within  the  meaning  of 
§  404(a).  Section  404  originated  as  part  of  the  Federal  Water 
Pollution  Control  Act  Amendments  of  1972,  which  consti- 
tuted a  comprehensive  legislative  attempt  "to  restore  and 
maintain  the  chemical,  physical,  and  biological  integrity  of 
the  Nation's  waters."  CWA  §  101,  33  U.  S.  C.  §  1251.  This 
objective  incorporated  a  broad,  systemic  view  of  the  goal  of 
maintaining  and  improving  water  quality:  as  the  House  Re- 
port on  the  legislation  put  it,  "the  word  'integrity' .  .  .  refers 
to  a  condition  in  which  the  natural  structure  and  function  of 
ecosystems  [are]  maintained."  H.  R.  Rep.  No.  92-911,  p.  76 
(1972).  Protection  of  aquatic  ecosystems,  Congress  recog- 

cent  to  bodies  of  open  water,  see  33  CFR  §§  323.2(a)(2)  and  (3)  (1985),  and 
we  do  not  express  any  opinion  on  that  question. 


UNITED  STATES  v.  RIVERSIDE  BAYVIEW  HOMES,  INC.      133 
121  Opinion  of  the  Court 

nized,  demanded  broad  federal  authority  to  control  pollution, 
for  "[w]ater  moves  in  hydrologic  cycles  and  it  is  essential  that 
discharge  of  pollutants  be  controlled  at  the  source."  S.  Rep. 
No.  92-414,  p.  77  (1972). 

In  keeping  with  these  views,  Congress  chose  to  define 
the  waters  covered  by  the  Act  broadly.  Although  the  Act 
prohibits  discharges  into  "navigable  waters,"  see  CWA 
§§301(a),  404(a),  502(12),  33  U.  S.  C.  §§1311(a),  1344(a), 
1362(12),  the  Act's  definition  of  "navigable  waters"  as  "the 
waters  of  the  United  States"  makes  it  clear  that  the  term 
"navigable"  as  used  in  the  Act  is  of  limited  import.  In  adopt- 
ing this  definition  of  "navigable  waters,"  Congress  evidently 
intended  to  repudiate  limits  that  had  been  placed  on  federal 
regulation  by  earlier  water  pollution  control  statutes  and  to 
exercise  its  powers  under  the  Commerce  Clause  to  regulate 
at  least  some  waters  that  would  not  be  deemed  "navigable" 
under  the  classical  understanding  of  that  term.  See  S.  Conf. 
Rep.  No.  92-1236,  p.  144  (1972);  118  Cong.  Rec.  33756-33757 
(1972)  (statement  of  Rep.  Dingell). 

Of  course,  it  is  one  thing  to  recognize  that  Congress  in- 
tended to  allow  regulation  of  waters  that  might  not  satisfy 
traditional  tests  of  navigability;  it  is  another  to  assert  that 
Congress  intended  to  abandon  traditional  notions  of  "waters" 
and  include  in  that  term  "wetlands"  as  well.  Nonetheless, 
the  evident  breadth  of  congressional  concern  for  protection  of 
water  quality  and  aquatic  ecosystems  suggests  that  it  is  rea- 
sonable for  the  Corps  to  interpret  the  term  "waters"  to  en- 
compass wetlands  adjacent  to  waters  as  more  conventionally 
defined.  Following  the  lead  of  the  Environmental  Protec- 
tion Agency,  see  38  Fed.  Reg.  10834  (1973),  the  Corps  has 
determined  that  wetlands  adjacent  to  navigable  waters  do  as 
a  general  matter  play  a  key  role  in  protecting  and  enhancing 
water  quality: 

"The  regulation  of  activities  that  cause  water  pollution 
cannot  rely  on  ...  artificial  lines  .  .  .  but  must  focus  on 
all  waters  that  together  form  the  entire  aquatic  system. 


134  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Water  moves  in  hydrologic  cycles,  and  the  pollution  of 
this  part  of  the  aquatic  system,  regardless  of  whether  it 
is  above  or  below  an  ordinary  high  water  mark,  or  mean 
high  tide  line,  will  affect  the  water  quality  of  the  other 
waters  within  that  aquatic  system. 

"For  this  reason,  the  landward  limit  of  Federal  juris- 
diction under  Section  404  must  include  any  adjacent 
wetlands  that  form  the  border  of  or  are  in  reasonable 
proximity  to  other  waters  of  the  United  States,  as  these 
wetlands  are  part  of  this  aquatic  system."  42  Fed.  Reg. 
37128  (1977). 

We  cannot  say  that  the  Corps'  conclusion  that  adjacent 
wetlands  are  inseparably  bound  up  with  the  "waters"  of  the 
United  States  —based  as  it  is  on  the  Corps'  and  EP A's  tech- 
nical expertise— is  unreasonable.  In  view  of  the  breadth  of 
federal  regulatory  authority  contemplated  by  the  Act  itself 
and  the  inherent  difficulties  of  defining  precise  bounds  to 
regulable  waters,  the  Corps'  ecological  judgment  about  the 
relationship  between  waters  and  their  adjacent  wetlands  pro- 
vides an  adequate  basis  for  a  legal  judgment  that  adjacent 
wetlands  may  be  defined  as  waters  under  the  Act. 

This  holds  true  even  for  wetlands  that  are  not  the  result  of 
flooding  or  permeation  by  water  having  its  source  in  adjacent 
bodies  of  open  water.  The  Corps  has  concluded  that  wet- 
lands may  affect  the  water  quality  of  adjacent  lakes,  rivers, 
and  streams  even  when  the  waters  of  those  bodies  do  not 
actually  inundate  the  wetlands.  For  example,  wetlands 
that  are  not  flooded  by  adjacent  waters  may  still  tend  to 
drain  into  those  waters.  In  such  circumstances,  the  Corps 
has  concluded  that  wetlands  may  serve  to  filter  and  purify 
water  draining  into  adjacent  bodies  of  water,  see  33  CFR 
§  320.4(b)(2)(vii)  (1985),  and  to  slow  the  flow  of  surface  runoff 
into  lakes,  rivers,  and  streams  and  thus  prevent  flooding  and 
erosion,  see  §§320.4(b)(2)(iv)  and  (v).  In  addition,  adjacent 
wetlands  may  "serve  significant  natural  biological  functions, 
including  food  chain  production,  general  habitat,  and  nesting, 


UNITED  STATES  v.  RIVERSIDE  BAYVIEW  HOMES,  INC.      135 
121  Opinion  of  the  Court 

spawning,  rearing  and  resting  sites  for  aquatic  .  .  .  species." 
§320.4(b)(2)(i).  In  short,  the  Corps  has  concluded  that  wet- 
lands adjacent  to  lakes,  rivers,  streams,  and  other  bodies  of 
water  may  function  as  integral  parts  of  the  aquatic  environ- 
ment even  when  the  moisture  creating  the  wetlands  does  not 
find  its  source  in  the  adjacent  bodies  of  water.  Again,  we 
cannot  say  that  the  Corps'  judgment  on  these  matters  is  un- 
reasonable, and  we  therefore  conclude  that  a  definition  of 
"waters  of  the  United  States"  encompassing  all  wetlands  ad- 
jacent to  other  bodies  of  water  over  which  the  Corps  has  ju- 
risdiction is  a  permissible  interpretation  of  the  Act.  Because 
respondent's  property  is  part  of  a  wetland  that  actually  abuts 
on  a  navigable  waterway,  respondent  was  required  to  have  a 
permit  in  this  case.9 

B 

Following  promulgation  of  the  Corps'  interim  final  regula- 
tions in  1975,  the  Corps'  assertion  of  authority  under  §404 
over  waters  not  actually  navigable  engendered  some  congres- 
sional opposition.  The  controversy  came  to  a  head  during 
Congress'  consideration  of  the  Clean  Water  Act  of  1977,  a 
major  piece  of  legislation  aimed  at  achieving  "interim  im- 
provements within  the  existing  framework"  of  the  Clean 
Water  Act.  H.  R.  Rep.  No.  95-139,  pp.  1-2  (1977).  In  the 


9  Of  course,  it  may  well  be  that  not  every  adjacent  wetland  is  of  great 
importance  to  the  environment  of  adjoining  bodies  of  water.  But  the  ex- 
istence of  such  cases  does  not  seriously  undermine  the  Corps'  decision  to 
define  all  adjacent  wetlands  as  "waters."  If  it  is  reasonable  for  the  Corps 
to  conclude  that  in  the  majority  of  cases,  adjacent  wetlands  have  significant 
effects  on  water  quality  and  the  aquatic  ecosystem,  its  definition  can  stand. 
That  the  definition  may  include  some  wetlands  that  are  not  significantly 
intertwined  with  the  ecosystem  of  adjacent  waterways  is  of  little  moment, 
for  where  it  appears  that  a  wetland  covered  by  the  Corps'  definition  is  in 
fact  lacking  in  importance  to  the  aquatic  environment — or  where  its  impor- 
tance is  outweighed  by  other  values  —the  Corps  may  always  allow  develop- 
ment of  the  wetland  for  other  uses  simply  by  issuing  a  permit.  See  33 
CFR  §320.4(b)(4)  (1985). 


136  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

end,  however,  as  we  shall  explain,  Congress  acquiesced  in 
the  administrative  construction. 

Critics  of  the  Corps'  permit  program  attempted  to  insert 
limitations  on  the  Corps'  §  404  jurisdiction  into  the  1977  legis- 
lation: the  House  bill  as  reported  out  of  committee  proposed  a 
redefinition  of  "navigable  waters"  that  would  have  limited 
the  Corps'  authority  under  §  404  to  waters  navigable  in  fact 
and  their  adjacent  wetlands  (defined  as  wetlands  periodically 
inundated  by  contiguous  navigable  waters).  H.  R.  3199, 
95th  Cong.,  1st  Sess.,  §  16  (1977).  The  bill  reported  by  the 
Senate  Committee  on  Environment  and  Public  Works,  by 
contrast,  contained  no  redefinition  of  the  scope  of  the  "navi- 
gable waters"  covered  by  §  404,  and  dealt  with  the  perceived 
problem  of  overregulation  by  the  Corps  by  exempting  certain 
activities  (primarily  agricultural)  from  the  permit  require- 
ment and  by  providing  for  assumption  of  some  of  the  Corps' 
regulatory  duties  by  federally  approved  state  programs.  S. 
1952,  95th  Cong.,  1st  Sess.,  §49(b)  (1977).  On  the  floor  of 
the  Senate,  however,  an  amendment  was  proposed  limiting 
the  scope  of  "navigable  waters"  along  the  lines  set  forth  in 
the  House  bill.  123  Cong.  Rec.  26710-26711  (1977). 

In  both  Chambers,  debate  on  the  proposals  to  narrow  the 
definition  of  navigable  waters  centered  largely  on  the  issue  of 
wetlands  preservation.  See  id.,  at  10426-10432  (House  de- 
bate); id.,  at  26710-26729  (Senate  debate).  Proponents  of  a 
more  limited  §  404  jurisdiction  contended  that  the  Corps'  as- 
sertion of  jurisdiction  over  wetlands  and  other  nonnavigable 
"waters"  had  far  exceeded  what  Congress  had  intended  in 
enacting  §  404.  Opponents  of  the  proposed  changes  argued 
that  a  narrower  definition  of  "navigable  waters"  for  purposes 
of  §  404  would  exclude  vast  stretches  of  crucial  wetlands  from 
the  Corps'  jurisdiction,  with  detrimental  effects  on  wetlands 
ecosystems,  water  quality,  and  the  aquatic  environment  gen- 
erally. The  debate,  particularly  in  the  Senate,  was  lengthy. 
In  the  House,  the  debate  ended  with  the  adoption  of  a  nar- 
rowed definition  of  "waters";  but  in  the  Senate  the  limiting 


UNITED  STATES  u  RIVERSIDE  BAYVIEW  HOMES,  INC.      137 
121  Opinion  of  the  Court 

amendment  was  defeated  and  the  old  definition  retained. 
The  Conference  Committee  adopted  the  Senate's  approach: 
efforts  to  narrow  the  definition  of  "waters"  were  abandoned; 
the  legislation  as  ultimately  passed,  in  the  words  of  Senator 
Baker,  "retain[ed]  the  comprehensive  jurisdiction  over  the 
Nation's  waters  exercised  in  the  1972  Federal  Water  Pollu- 
tion Control  Act."10 

The  significance  of  Congress'  treatment  of  the  Corps'  §  404 
jurisdiction  in  its  consideration  of  the  Clean  Water  Act  of 
1977  is  twofold.  First,  the  scope  of  the  Corps'  asserted 
jurisdiction  over  wetlands  was  specifically  brought  to  Con- 
gress' attention,  and  Congress  rejected  measures  designed  to 
curb  the  Corps'  jurisdiction  in  large  part  because  of  its  con- 
cern that  protection  of  wetlands  would  be  unduly  hampered 
by  a  narrowed  definition  of  "navigable  waters."  Although 
we  are  chary  of  attributing  significance  to  Congress'  failure 
to  act,  a  refusal  by  Congress  to  overrule  an  agency's  con- 
struction of  legislation  is  at  least  some  evidence  of  the  reason- 
ableness of  that  construction,  particularly  where  the  adminis- 
trative construction  has  been  brought  to  Congress'  attention 
through  legislation  specifically  designed  to  supplant  it.  See 
Bob  Jones  University  v.  United  States,  461  U.  S.  574,  599- 
601  (1983);  United  States  v.  Rutherford,  442  U.  S.  544,  554, 
and  n.  10  (1979). 

Second,  it  is  notable  that  even  those  who  would  have  re- 
stricted the  reach  of  the  Corps'  jurisdiction  would  have  done 
so  not  by  removing  wetlands  altogether  from  the  definition  of 
"waters  of  the  United  States,"  but  only  by  restricting  the 
scope  of  "navigable  waters"  under  §  404  to  waters  navigable 
in  fact  and  their  adjacent  wetlands.  In  amending  the  defini- 
tion of  "navigable  waters"  for  purposes  of  §404  only,  the 
backers  of  the  House  bill  would  have  left  intact  the  existing 
definition  of  "navigable  waters"  for  purposes  of  §  301  of  the 


10 123  Cong.  Rec.  39209  (1977);  see  also  id.,  at  39210  (statement  of  Sen. 
Wallop);  id.,  at  39196  (statement  of  Sen.  Randolph);  id.,  at  38950  (state- 
ment of  Rep.  Murphy);  id.,  at  38994  (statement  of  Rep.  Ambro). 


138  OCTOBER  TERM,  1986 

Opinion  of  the  Court  474  U.  S. 

Act,  which  generally  prohibits  discharges  of  pollutants  into 
navigable  waters.  As  the  House  Report  explained:  "  'Navi- 
gable waters'  as  used  in  section  301  includes  all  of  the  waters 
of  the  United  States  including  their  adjacent  wetlands." 
H.  R.  Rep.  No.  95-139,  p.  24  (1977).  Thus,  even  those  who 
thought  that  the  Corps'  existing  authority  under  §404  was 
too  broad  recognized  (1)  that  the  definition  of  "navigable 
waters"  then  in  force  for  both  §  301  and  §  404  was  reasonably 
interpreted  to  include  adjacent  wetlands,  (2)  that  the  water 
quality  concerns  of  the  Clean  Water  Act  demanded  regula- 
tion of  at  least  some  discharges  into  wetlands,  and  (3)  that 
whatever  jurisdiction  the  Corps  would  retain  over  discharges 
of  fill  material  after  passage  of  the  1977  legislation  should 
extend  to  discharges  into  wetlands  adjacent  to  any  waters 
over  which  the  Corps  retained  jurisdiction.  These  views 
provide  additional  support  for  a  conclusion  that  Congress  in 
1977  acquiesced  in  the  Corps'  definition  of  waters  as  including 
adjacent  wetlands. 

Two  features  actually  included  in  the  legislation  that  Con- 
gress enacted  in  1977  also  support  the  view  that  the  Act 
authorizes  the  Corps  to  regulate  discharges  into  wetlands. 
First,  in  amending  §404  to  allow  federally  approved  state 
permit  programs  to  supplant  regulation  by  the  Corps  of  cer- 
tain discharges  of  fill  material,  Congress  provided  that  the 
States  would  not  be  permitted  to  supersede  the  Corps'  juris- 
diction to  regulate  discharges  into  actually  navigable  waters 
and  waters  subject  to  the  ebb  and  flow  of  the  tide,  "including 
wetlands  adjacent  thereto."  CWA  §404(g)(l),  33  U.  S.  C. 
§  1344(g)(l).  Here,  then,  Congress  expressly  stated  that  the 
term  "waters"  included  adjacent  wetlands.11  Second,  the 


11  To  be  sure,  §  404(g)(l)  does  not  conclusively  determine  the  construc- 
tion to  be  placed  on  the  use  of  the  term  "waters"  elsewhere  in  the  Act  (par- 
ticularly in  §  502(7),  which  contains  the  relevant  definition  of  "navigable 
waters");  however,  in  light  of  the  fact  that  the  various  provisions  of  the  Act 
should  be  read  in  pari  materia,  it  does  at  least  suggest  strongly  that  the 
term  "waters"  as  used  in  the  Act  does  not  necessarily  exclude  ''wetlands." 


UNITED  STATES  u  RIVERSIDE  BAYVIEW  HOMES,  INC.     139 
121  Opinion  of  the  Court 

1977  Act  authorized  an  appropriation  of  $6  million  for  comple- 
tion by  the  Department  of  Interior  of  a  "National  Wetlands 
Inventory"  to  assist  the  States  "in  the  development  and  oper- 
ation of  programs  under  this  Act."  CWA  §208(i)(2),  33 
U.  S.  C.  §  1288(i)(2).  The  enactment  of  this  provision  re- 
flects congressional  recognition  that  wetlands  are  a  concern 
of  the  Clean  Water  Act  and  supports  the  conclusion  that  in 
defining  the  waters  covered  by  the  Act  to  include  wetlands, 
the  Corps  is  "implementing  congressional  policy  rather  than 
embarking  on  a  frolic  of  its  own."  Red  Lion  Broadcasting 
Co.  v.  FCC,  395  U.  S.  367,  375  (1969). 

C 

We  are  thus  persuaded  that  the  language,  policies,  and  his- 
tory of  the  Clean  Water  Act  compel  a  finding  that  the  Corps 
has  acted  reasonably  in  interpreting  the  Act  to  require  per- 
mits for  the  discharge  of  fill  material  into  wetlands  adjacent 
to  the  "waters  of  the  United  States."  The  regulation  in 
which  the  Corps  has  embodied  this  interpretation  by  its 
terms  includes  the  wetlands  on  respondent's  property  within 
the  class  of  waters  that  may  not  be  filled  without  a  permit; 
and,  as  we  have  seen,  there  is  no  reason  to  interpret  the 
regulation  more  narrowly  than  its  terms  would  indicate.  Ac- 
cordingly, the  judgment  of  the  Court  of  Appeals  is 

Reversed. 


140  OCTOBER  TERM,  1985 

SyUabus  474  U.  S. 


THOMAS  v.  ARN,  SUPERINTENDENT,  OHIO 
REFORMATORY  FOR  WOMEN 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  SIXTH  CIRCUIT 

No.  84-5630.     Argued  October  7,  1985— Decided  December  4,  1985 

Petitioner  was  convicted  of  homicide  in  an  Ohio  court,  and  ultimately  the 
Ohio  Supreme  Court  upheld  the  conviction.  She  sought  habeas  corpus 
relief  in  the  Federal  District  Court,  which  referred  the  case  to  a  Magis- 
trate, who  issued  a  report  recommending  denial  of  the  writ  and  contain- 
ing proposed  findings  and  conclusions  of  law  and  a  notice  that  failure  to 
file  objections  within  10  days  waived  the  right  to  appeal  the  District 
Court's  order.  Petitioner  failed  to  file  objections  even  though  she  had 
received  an  extension  of  time  to  do  so,  but  the  District  Judge  sua  sponte 
reviewed  the  entire  record  de  novo  and  dismissed  the  petition  on  the 
merits.  On  appeal,  petitioner  provided  no  explanation  for  her  failure  to 
object  to  the  Magistrate's  report.  Without  reaching  the  merits,  the 
Court  of  Appeals  affirmed,  holding  that  petitioner  had  waived  the  right 
to  appeal  by  failing  to  file  objections  to  the  Magistrate's  report. 

Held:  A  court  of  appeals  may  adopt  a  rule  conditioning  appeal,  when  taken 
from  a  district  court  judgment  that  adopts  a  magistrate's  recommenda- 
tion, upon  the  filing  of  objections  with  the  district  court  identifying  those 
issues  on  which  further  review  is  desired.  Such  a  rule,  at  least  when 
(as  here)  it  incorporates  clear  notice  to  the  litigants  and  an  opportunity 
to  seek  an  extension  of  time  for  filing  objections,  is  a  valid  exercise  of 
the  court's  supervisory  power  that  does  not  violate  either  the  Federal 
Magistrates  Act  or  the  Constitution.  Pp.  145-155. 

(a)  Here,  the  Court  of  Appeals  intended  to  adopt  a  rule  of  procedure 
in  the  exercise  of  its  supervisory  power.      Neither  the  intent  nor  the 
practical  effect  of  the  court's  waiver  rule  is  to  restrict  the  court's  own 
jurisdiction.     Pp.  145-146. 

(b)  The  courts  of  appeals  have  supervisory  powers  that  permit,  at  the 
least,  the  promulgation  of  procedural  rules  governing  the  management  of 
litigation.     The  fact  that  the  Sixth  Circuit  has  deemed  petitioner  to  have 
forfeited  her  statutory  right  to  an  appeal  is  not  enough,  standing  alone, 
to  invalidate  the  court's  exercise  of  its  supervisory  power.     Moreover, 
the  Sixth  Circuit's  decision  to  require  the  filing  of  objections  is  supported 
by  sound  considerations  of  judicial  economy.     Pp.  146-148. 

(c)  Neither  the  language  nor  the  legislative  history  of  the  Federal 
Magistrates  Act— which  provides  that  a  litigant  "may"  file  objections  to 


THOMAS  v.  ARN  141 

140  Opinion  of  the  Court 

the  magistrate's  report  within  10  days  and  thus  obtain  de  novo  review  by 
the  district  judge,  28  U.  S.  C.  §  636(b)(l)(C)- supports  petitioner's  ar- 
gument that  the  Act  precludes  the  waiver  rule  adopted  by  the  Sixth  Cir- 
cuit. The  Act  does  not  require  that  the  district  court  review  the  magis- 
trate's report  under  some  lesser  standard  than  de  novo  review  when  no 
objection  is  filed.  Nor  does  the  obligatory  filing  of  objections  under  the 
Act  extend  only  to  findings  of  fact  and  not  to  the  magistrate's  conclusions 
of  law.  Moreover,  the  waiver  of  appellate  review  is  not  inconsistent 
with  the  Act's  purposes.  Pp.  148-153. 

(d)  The  waiver  of  appellate  review  does  not  violate  Article  III  of  the 
Constitution.  Although  a  magistrate  is  not  an  Article  III  judge,  a  dis- 
trict court  may  refer  dispositive  motions  to  a  magistrate  for  a  recommen- 
dation so  long  as  the  entire  process  takes  place  under  the  district  court's 
control  and  jurisdiction,  and  the  judge  exercises  the  ultimate  authority 
to  issue  an  appropriate  order.  The  waiver  of  appellate  review  does  not 
implicate  Article  III,  because  it  is  the  district  court,  not  the  court  of 
appeals,  that  must  exercise  supervision  over  the  magistrate,  and  the 
waiver  rule  does  not  elevate  the  magistrate  from  an  adjunct  to  the  func- 
tional equivalent  of  an  Article  III  judge.  Nor  does  the  waiver  rule 
violate  the  Due  Process  Clause  of  the  Fifth  Amendment.  Petitioner's 
statutory  right  of  appeal  was  not  denied;  it  was  merely  conditioned  upon 
the  filing  of  a  piece  of  paper.  Pp.  153-155. 
728  F.  2d  813,  affirmed. 

MARSHALL,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER, 
C.  J.,  and  WHITE,  POWELL,  REHNQUIST,  and  O'CONNOR,  JJ.,  joined. 
BRENNAN,  J.,  filed  a  dissenting  opinion,  in  which  BLACKMUN,  J.,  joined, 
post,  p.  156.  STEVENS,  J.,  filed  a  dissenting  opinion,  post,  p.  157. 

Christopher  D.  Stanley  argued  the  cause  for  petitioner. 
With  him  on  the  brief  was  Louis  A.  Jacobs. 

Richard  David  Drake,  Assistant  Attorney  General  of  Ohio, 
argued  the  cause  for  respondent.  With  him  on  the  brief  was 
Anthony  J.  Celebrezze,  Jr.,  Attorney  General. 

JUSTICE  MARSHALL  delivered  the  opinion  of  the  Court, 
In  1976,  Congress  amended  §  101  of  the  Federal  Magis- 
trates Act,  28  U.  S.  C.  §636,  to  provide  that  a  United  States 
district  judge  may  refer  dispositive  pretrial  motions,  and 
petitions  for  writ  of  habeas  corpus,  to  a  magistrate,  who 
shall  conduct  appropriate  proceedings  and  recommend  dispo- 


142  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

sitions.  Pub.  L.  94-577,  90  Stat.  2729. 1  The  amendments 
also  provide  that  any  party  that  disagrees  with  the  magis- 
trate's recommendations  "may  serve  and  file  ^written  objec- 
tions" to  the  magistrate's  report,  and  thus  obtain  de  novo 
review  by  the  district  judge.2  The  question  presented  is 
whether  a  court  of  appeals  may  exercise  its  supervisory  pow- 
ers to  establish  a  rule  that  the  failure  to  file  objections  to  the 
magistrate's  report  waives  the  right  to  appeal  the  district 
court's  judgment.  We  hold  that  it  may. 

I 

Petitioner  was  convicted  by  an  Ohio  court  in  1978  of  fatally 
shooting  her  common-law   husband   during   an   argument. 

1  Title  28  U.  S.  C.  §  636(b)(l)(B)  provides: 

"[A]  judge  may  also  designate  a  magistrate  to  conduct  hearings,  including 
evidentiary  hearings,  and  to  submit  to  a  judge  of  the  court  proposed  find- 
ings of  fact  and  recommendations  for  the  disposition,  by  a  judge  of  the 
court,  of  any  motion  excepted  in  subparagraph  (A),  of  applications  for 
posttrial  relief  made  by  individuals  convicted  of  criminal  offenses  and  of 
prisoner  petitions  challenging  conditions  of  confinement. " 
The  motions  excepted  in  §  636(b)(l)(A),  and  included  by  reference  in 
subparagraph  (B),  are  motions 

'for  injunctive  relief,  for  judgment  on  the  pleadings,  for  summary  judg- 
ment, to  dismiss  or  quash  an  indictment  or  information  made  by  the  de- 
fendant, to  suppress  evidence  hi  a  criminal  case,  to  dismiss  or  to  permit 
maintenance  of  a  class  action,  to  dismiss  for  failure  to  state  a  claim  upon 
which  relief  can  be  granted,  and  to  involuntarily  dismiss  an  action." 

2  Title  28  U.  S.  C.  §  636(b)(l)(C)  provides: 

"[T]he  magistrate  shall  file  his  proposed  findings  and  recommendations 
under  subparagraph  (B)  with  the  court  and  a  copy  shall  forthwith  be  mailed 
to  all  parties. 

"Within  ten  days  after  being  served  with  a  copy,  any  party  may  serve 
and  file  written  objections  to  such  proposed  findings  and  recommendations 
as  provided  by  rules  of  court.  A  judge  of  the  court  shall  make  a  de  novo 
determination  of  those  portions  of  the  report  or  specified  proposed  findings 
or  recommendations  to  which  objection  is  made.  A  judge  of  the  court  may 
accept,  reject,  or  modify,  in  whole  or  in  part,  the  findings  or  recommenda- 
tions made  by  the  magistrate.  The  judge  may  also  receive  farther  evi- 
dence or  recommit  the  matter  to  the  magistrate  with  instructions." 


THOMAS  u  ARN  143 

140  Opinion  of  the  Court 

The  evidence  at  trial  showed  that  the  victim  was  a  violent 
man  who  had  beaten  petitioner  on  a  number  of  occasions  dur- 
ing the  previous  three  years.  Petitioner  raised  the  issue  of 
self-defense  at  trial,  and  sought  to  call  two  witnesses  who 
would  present  expert  testimony  concerning  the  Battered 
Wife  Syndrome.  After  conducting  a  voir  dire  of  these  wit- 
nesses in  chambers,  the  trial  court  refused  to  admit  the  testi- 
mony, on  the  grounds  that  the  jury  did  not  need  the  assist- 
ance of  expert  testimony  to  understand  the  case  and  that  the 
witnesses,  who  had  not  personally  examined  petitioner,  could 
not  testify  about  her  state  of  mind  at  the  time  of  the  shooting. 
The  Court  of  Appeals  of  Cuyahoga  County  reversed. 
State  v.  Thomas,  64  Ohio  App.  2d  141,  411  N.  E.  2d  845 
(1979).  The  court's  syllabus3  concluded  that  testimony  con- 
cerning the  Battered  Wife  Syndrome  is  admissible  **to  afford 
the  jury  an  understanding  of  the  defendant's  state  of  mind  at 
the  time  she  committed  the  homicide."  App.  9.  The  Ohio 
Supreme  Court,  on  discretionary  review,  reversed.  State  v. 
Thomas,  66  Ohio  St.  2d  518,  423  N.  E.  2d  137  (1981).  The 
court  held  that  the  testimony  was  irrelevant  to  the  issue  of 
self-defense,  and  that  its  prejudicial  effect  would  outweigh  its 
probative  value.  Having  exhausted  state  remedies,  peti- 
tioner sought  habeas  corpus  relief  in  the  United  States  Dis- 
trict Court  for  the  Northern  District  of  Ohio.  The  petition 
raised,  inter  alia,  the  question  whether  petitioner  was  denied 
a  fair  trial  by  the  trial  court's  refusal  to  admit  testimony  con- 
cerning the  Battered  Wife  Syndrome.  Petitioner  filed  a 
memorandum  of  law  in  support  of  the  petition.  The  District 
Judge,  acting  pursuant  to  28  U.  S.  C.  §  636(b)(l)(B),  referred 
the  case,  including  petitioner's  memorandum  of  law,  to  a 
Magistrate.  The  Magistrate  did  not  hold  a  hearing.  On 
May  11,  1982,  the  Magistrate  issued  his  report,  containing 
proposed  findings  of  fact  and  conclusions  of  law  and  recorn- 

8  In  Ohio,  the  court's  syllabus  contains  the  controlling  law.  See  Engle 
v.  Isaac,  456  U.  S.  107,  111,  n,  3  (1982),  citing  Haas  v.  State,  103  Ohio  St. 
1,  7-8,  132  N.  E.  158,  159-160  (1921). 


144  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

mending  that  the  writ  be  denied.  On  the  issue  of  the  Bat- 
tered Wife  Syndrome  testimony,  the  Magistrate  concluded 
that  the  trial  court's  failure  to  admit  the  proffered  testimony 
had  not  impaired  the  fundamental  fairness  of  the  trial,  and 
therefore  was  not  an  adequate  ground  for  habeas  corpus 
relief. 

The  last  page  of  the  Magistrate's  report  contained  the 
prominent  legend: 

"ANY  OBJECTIONS  to  this  Report  and  Recommenda- 
tion must  be  filed  with  the  Clerk  of  Courts  within  ten 
(10)  days  of  receipt  of  this  notice.  Failure  to  file  objec- 
tions within  the  specified  time  waives  the  right  to  appeal 
the  District  Court's  order.  See:  United  States  v.  Wal- 
ters, 638  F.  2d  947  (6th  Cir.  1981)." 

Despite  this  clear  notice,  petitioner  failed  to  file  objections  at 
any  time.  She  sought  and  received  an  extension  of  time  to 
file  objections  through  June  15,  1982,  on  the  grounds  that 
"this  case  entails  many  substantive  issues  and  counsel  needs 
more  time  to  write  his  brief."  However,  petitioner  made  no 
further  submissions  on  the  merits  to  the  District  Court. 
Notwithstanding  petitioner's  failure  to  file  objections,  the 
District  Judge  ma  sponte  "review[ed]  .  .  .  the  entire  record 
de  novo,"  App.  59,  and  dismissed  the  petition  on  the  merits. 
Petitioner  sought  and  was  granted  leave  to  appeal. 

Petitioner's  brief  on  appeal  raised  only  the  issue  of  the  Bat- 
tered Wife  Syndrome  testimony.  The  brief  provided  no  ex- 
planation for  petitioner's  failure  to  object  to  the  Magistrate's 
report.  Counsel  for  petitioner  waived  oral  argument,  and 
the  case  was  decided  on  the  briefs.  The  Court  of  Appeals  for 
the  Sixth  Circuit  affirmed.  728  F.  2d  813  (1984).  Without 
reaching  the  merits,  it  held  that  petitioner  had  waived  the 
right  to  appeal  by  failing  to  file  objections  to  the  Magistrate's 
report.  Id. ,  at  815.  The  court  relied  upon  its  prior  decision 
in  United  States  v.  Walters,  638  F.  2d  947  (1981),  which  es- 
tablished the  prospective  rule  that  failure  to  file  timely  objec- 
tions with  the  district  court  waives  subsequent  review  in  the 


THOMAS  v.  ARN  145 

140  Opinion  of  the  Court 

court  of  appeals.     We  granted  the  petition  for  a  writ  of  cer- 
tiorari,  470  U.  S.  1027  (1985),  and  we  now  affirm. 

II 

In  United  States  v.  Walters,  supra,  the  appellant  failed  to 
object  to  the  Magistrate's  report,  and  the  District  Court 
adopted  that  report  as  its  disposition  of  the  case.  The  appel- 
lant then  brought  an  appeal.  The  Court  of  Appeals  for  the 
Sixth  Circuit  considered  the  threshold  question  whether  the 
appellant's  failure  to  apprise  the  District  Court  of  its  dis- 
agreement with  the  Magistrate's  recommendation  waived  the 
right  to  appeal.  The  court  held: 

"The  permissive  language  of  28  U.  S.  C.  §  636  sug- 
gests that  a  party's  failure  to  file  objections  is  not  a 
waiver  of  appellate  review.  However,  the  fundamental 
congressional  policy  underlying  the  Magistrate's  Act— to 
improve  access  to  the  federal  courts  and  aid  the  efficient 
administration  of  justice— is  best  served  by  our  holding 
that  a  party  shall  file  objections  with  the  district  court  or 
else  waive  right  to  appeal.  Additionally,  through  the 
exercise  of  our  supervisory  power,  we  hold  that  a  party 
shall  be  informed  by  the  magistrate  that  objections  must 
be  filed  within  ten  days  or  further  appeal  is  waived. 

"However,  we  give  our  ruling  only  prospective  effect 
because  rules  of  procedure  should  promote,  not  defeat 
the  ends  of  justice  .  .  .  ."  Id.,  at  949-950  (footnote  and 
citations  omitted). 

The  nature  of  the  rule  and  its  prospective  application  dem- 
onstrate that  the  court  intended  to  adopt  a  "rul[e]  of  proce- 
dure," id.,  at  950,  in  the  exercise  of  its  supervisory  powers. 
Later  opinions  of  the  Sixth  Circuit  make  it  clear  that  the 
court  views  Walters  in  this  way.  See  Patterson  v.  Mintzes, 
717  F.  2d  284,  286  (1983)  ("In  Walters  .  .  .  this  Court  promul- 
gated [a]  rule  of  waiver");  United  States  v.  Martin,  704  F.  2d 
267,  275  (1983)  (Jones,  J.,  concurring)  (characterizing  Wai- 


146  OCTOBER  TERM,  1986 

Opinion  of  the  Court  474  U.  S. 

ters  as  "[r]ulemaking  through  the  exercise  of  supervisory 
powers")-  Thus,  petitioner's  first  contention — that  the 
Court  of  Appeals  has  refused  to  exercise  the  jurisdiction  that 
Congress  granted  it — is  simply  inaccurate.  The  Court  of 
Appeals  expressly  acknowledged  that  it  had  subject-matter 
jurisdiction  over  petitioner's  appeal.  728  F.  2d,  at  814.  The 
Sixth  Circuit  has  also  shown  that  its  rule  is  not  jurisdictional 
by  excusing  the  procedural  default  in  a  recent  case.  See 
Patterson  v.  Mintzes,  supra  (considering  appeal  on  merits 
despite  pro  se  litigant's  late  filing  of  objections).  We  there- 
fore conclude  that  neither  the  intent  nor  the  practical  effect 
of  the  Sixth  Circuit's  waiver  rule  is  to  restrict  the  court's  own 
jurisdiction.4 

Ill 

It  cannot  be  doubted  that  the  courts  of  appeals  have  super- 
visory powers  that  permit,  at  the  least,  the  promulgation  of 
procedural  rules  governing  the  management  of  litigation. 
Cf.  Cuyler  v.  Sullivan,  446  U.  S.  335,  346,  n.  10  (1980)  (ap- 
proving exercise  of  supervisory  powers  to  require  district 
court  inquiry  concerning  joint  representation  of  criminal  de- 
fendants). Indeed,  this  Court  has  acknowledged  the  power 
of  the  courts  of  appeals  to  mandate  "procedures  deemed  de- 
sirable from  the  viewpoint  of  sound  judicial  practice  although 


4  The  First,  Second,  Fourth,  and  Fifth  Circuits  have  adopted  waiver 
rules  similar  to  the  Sixth  Circuit  rule  at  issue  in  the  present  case.  See 
Park  Motor  Mart,  Inc.  v.  Ford  Motor  Co.,  616  F.  2d  603  (CA1  1980); 
McCarthy  v.  Manson,  714  F.  2d  234,  237  (CA2  1983);  United  States  v. 
Schronce,  727  F.  2d  91  (CA4),  cert,  denied,  467  U.  S.  1208  (1984);  United 
States  v.  Lewis,  621  F.  2d  1382,  1386  (CAS  1980),  cert,  denied,  450  U.  S. 
935  (1981).  The  Ninth  and  Eleventh  Circuits  have  concluded  that  the  fail- 
ure to  file  objections  waives  only  factual  issues  on  the  appeal.  See  Britt  v. 
Simi  Valley  Unified  School  District,  708  F.  2d  452,  454  (CA9  1983)  (order 
denying  petition  for  rehearing);  Nettles  v.  Wainwright,  677  F.  2d  404  (CAS 
1982)  (en  bane);  but  see  Lorin  Corp.  v.  Goto  &  Co.,  700  F.  2d  1202, 
1205-1207  (CAS  1983)  (rejecting  waiver  rule,  at  least  where  parties  had  not 
been  notified  that  failure  to  object  would  waive  appeal).  In  none  of  these 
cases  have  the  courts  spoken  in  jurisdictional  terms. 


THOMAS  v.  ARN  147 

140  Opinion  of  the  Court 

in  nowise  commanded  by  statute  or  by  the  Constitution." 
Cupp  v.  NoMghten,  414  U.  S.  141,  146  (1973);  see  also  Barker 
v.  Wingo,  407  U.  S.  514,  530,  n.  29  (1972).6  Had  petitioner 
failed  to  comply  with  a  scheduling  order  or  pay  a  filing  fee 
established  by  a  court  of  appeals,  that  court  could  certainly 
dismiss  the  appeal.  Cf.  Link  v.  Wabash  R.  Co.,  370  U.  S. 
626  (1962)  (recognizing  "inherent  power"  of  court  to  dismiss 
case  for  want  of  prosecution).  The  fact  that  the  Sixth  Cir- 
cuit has  deemed  petitioner  to  have  forfeited  her  statutory 
right  to  an  appeal  is  not  enough,  standing  alone,  to  invalidate 
the  court's  exercise  of  its  supervisory  power. 

The  Sixth  Circuit's  decision  to  require  the  filing  of  ob- 
jections is  supported  by  sound  considerations  of  judicial 
economy.  The  filing  of  objections  to  a  magistrate's  report 
enables  the  district  judge  to  focus  attention  on  those  issues  — 
factual  and  legal— that  are  at  the  heart  of  the  parties'  dis- 
pute.6 The  Sixth  Circuit's  rule,  by  precluding  appellate 

5  This  power  rests  on  the  firmest  ground  when  used  to  establish  rules  of 
judicial  procedure.     See  Beale,  Reconsidering  Supervisory  Power  in  Crim- 
inal Cases:  Constitutional  and  Statutory  Limits  on  the  Authority  of  the 
Federal  Courts,  84  Colum.  L.  Rev.  1433,  1465  (1984)  (federal  courts  have 
inherent  authority  to  regulate  "technical  details  and  policies  intrinsic  to  the 
litigation  process").     The  Courts  of  Appeals  have  often  exercised  that  au- 
thority.    See,  e.  g.,  Tingler  v.  Marshall,  716  F.  2d  1109,  1112  (CA6  1983) 
(establishing  procedure  for  SUOL  sponte  dismissal  of  complaints);   United 
States  v.  Florea,  541  F.  2d  568,  572  (CA6  1976)  (prospective  rule  holding 
that  contact  between  party's  agent  and  juror  is  per  se  prejudicial),  cert, 
denied,  430  U.  S.  945  (1977);  United  States  v.  Schiavo,  504  F.  2d  1,  7-8 
(CA3)  (en  bane)  (establishing  procedures  for  enjoining  publication  of  in- 
formation concerning  criminal  trial),  cert,  denied  sub  now.  Ditter  v.  Phila- 
delphia Newspapers,  Inc.,  419  U.  S.  1096  (1974). 

6  In  the  present  case,  the  filing  of  objections  could  have  resulted  in  a 
considerable  saving  of  judicial  time.     The  original  petition  contained  sev- 
eral grounds  for  relief,  but  on  appeal  petitioner  raised  only  the  issue  of  the 
admissibility  of  expert  testimony  on  the  Battered  Wife  Syndrome.      Had 
petitioner  objected  only  to  that  aspect  of  the  Magistrate's  report,  the  Mag- 
istrate's review  would  have  served  to  narrow  the  dispute  for  the  District 
Judge,  and  petitioner  would  have  preserved  her  right  to  appeal  the  exclu- 
sion of  her  expert  testimony. 


148  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

review  of  any  issue  not  contained  in  objections,  prevents  a 
litigant  from  "sandbagging"  the  district  judge  by  failing  to 
object  and  then  appealing.  Absent  such  a  rule,  any  issue 
before  the  magistrate  would  be  a  proper  subject  for  appellate 
review.  This  would  either  force  the  court  of  appeals  to  con- 
sider claims  that  were  never  reviewed  by  the  district  court, 
or  force  the  district  court  to  review  every  issue  in  every  case, 
no  matter  how  thorough  the  magistrate's  analysis  and  even 
if  both  parties  were  satisfied  with  the  magistrate's  report. 
Either  result  would  be  an  inefficient  use  of  judicial  resources. 
In  short,  "[t]he  same  rationale  that  prevents  a  party  from 
raising  an  issue  before  a  circuit  court  of  appeals  that  was  not 
raised  before  the  district  court  applies  here."  United  States 
v.  Schronce,  727  F.  2d  91,  94  (CA4)  (footnote  omitted),  cert, 
denied,  467  U.  S.  1208  (1984). 

IV 

Even  a  sensible  and  efficient  use  of  the  supervisory  power, 
however,  is  invalid  if  it  conflicts  with  constitutional  or  stat- 
utory provisions.  A  contrary  result  "would  confer  on  the 
judiciary  discretionary  power  to  disregard  the  considered 
limitations  of  the  law  it  is  charged  with  enforcing."  United 
States  v.  Payner,  447  U.  S.  727,  737  (1980).  Thus  we  now 
consider  whether  the  Sixth  Circuit's  waiver  rule  conflicts 
with  statutory  law  or  with  the  Constitution. 

A 

Petitioner  argues  that  the  Federal  Magistrates  Act  pre- 
cludes the  waiver  rule  adopted  by  the  Sixth  Circuit.  Her 
argument  focuses  on  the  permissive  nature  of  the  statutory 
language.  The  statute  provides  that  a  litigant  "may"  file 
objections,  and  nowhere  states  that  the  failure  to  do  so  will 
waive  an  appeal.  Petitioner  cites  the  Eighth  Circuit's  con- 
clusion that  "[o]ne  would  think  that  if  Congress  had  wished 
such  a  drastic  consequence  to  follow  from  the  missing  of  the 
ten-day  time  limit,  it  would  have  said  so  explicitly."  Lorin 
Corp.  v.  Goto  &  Co.,  700  F.  2d  1202,  1206  (1983).  However, 


THOMAS  v.  ARN  149 

140  Opinion  of  the  Court 

we  need  not  decide  whether  the  Act  mandates  a  waiver  of 
appellate  review  absent  objections.  We  hold  only  that  it 
does  not  forbid  such  a  rule. 

Section  636(b)(l)(C)  provides  that  "[a]  judge  of  the  [dis- 
trict] court  shall  make  a  de  novo  determination  of  those  por- 
tions of  the  report  or  specified  proposed  findings  or  recom- 
mendations to  which  objection  is  made."  The  statute  does 
not  on  its  face  require  any  review  at  all,  by  either  the  district 
court  or  the  court  of  appeals,  of  any  issue  that  is  not  the  sub- 
ject of  an  objection.  Petitioner  argues,  however,  that  the 
statutory  language  and  purpose  implicitly  require  the  district 
court  to  review  a  magistrate's  report  even  if  no  party  objects. 
If  petitioner's  interpretation  of  the  statute  is  correct,  then 
the  waiver  of  appellate  review,  as  formulated  by  the  Sixth 
and  other  Circuits,  proceeds  from  an  erroneous  assumption— 
that  the  failure  to  object  may  constitute  a  procedural  default 
waiving  review  even  at  the  district  court  level.7  Moreover, 
were  the  district  judge  required  to  review  the  magistrate's 
report  in  every  case,  the  waiver  of  appellate  review  would 
not  promote  judicial  economy  as  discussed  in  Part  III,  supra. 

Petitioner  first  argues  that  a  failure  to  object  waives  only 
de  novo  review,  and  that  the  district  judge  must  still  review 
the  magistrate's  report  under  some  lesser  standard.  How- 
ever, §636(b)(l)(C)  simply  does  not  provide  for  such  review. 
This  omission  does  not  seem  to  be  inadvertent,  because  Con- 
gress provided  for  a  "clearly  erroneous  or  contrary  to  law" 
standard  of  review  of  a  magistrate's  disposition  of  certain 
pretrial  matters  in  §636(b)(l)(A).  See  Park  Motor  Mart, 
Inc.  v.  Ford  Motor  Co.,  616  F.  2d  603,  605  (CA1  1980).  Nor 

7  The  Sixth  Circuit,  in  Walters,  cited  with  approval  the  First  Circuit's 
decision  in  Park  Motor  Mart,  which  held  that  "a  party  'may'  file  objections 
within  ten  days  or  he  may  not,  as  he  chooses,  but  he  'shall'  do  so  if  he 
wishes  farther  consideration."  616  F.  2d,  at  605;  see  Walters,  638  F.  2d, 
at  950.  See  also  McCarthy  v.  Manson,  714  F.  2d,  at  237  ("When  a  party 
fails  to  object  timely  to  a  magistrate's  recommended  decision,  it  waives  any 
right  to  further  judicial  review  of  that  decision")  (footnote  and  citation 
omitted). 


150  OCTOBER  TERM,  1986 

Opinion  of  the  Court  474  U.  S. 

does  petitioner  point  to  anything  in  the  legislative  history  of 
the  1976  amendments  mandating  review  under  some  lesser 
standard.  We  are  therefore  not  persuaded  that  the  statute 
positively  requires  some  lesser  review  by  the  district  court 
when  no  objections  are  filed. 

Petitioner  also  argues  that,  under  the  Act,  the  obligatory 
filing  of  objections  extends  only  to  findings  of  fact.  She 
urges  that  Congress,  in  order  to  vest  final  authority  over 
questions  of  law  in  an  Article  III  judge,  intended  that  the  dis- 
trict judge  would  automatically  review  the  magistrate's  con- 
clusions of  law.  We  reject,  however,  petitioner's  distinction 
between  factual  and  legal  issues.  Once  again,  the  plain  lan- 
guage of  the  statute  recognizes  no  such  distinction.8  We 
also  fail  to  find  such  a  requirement  in  the  legislative  history. 

It  does  not  appear  that  Congress  intended  to  require  dis- 
trict court  review  of  a  magistrate's  factual  or  legal  conclu- 
sions, under  a  de  novo  or  any  other  standard,  when  neither 
party  objects  to  those  findings.  The  House  and  Senate  Re- 
ports accompanying  the  1976  amendments  do  not  expressly 
consider  what  sort  of  review  the  district  court  should  per- 
form when  no  party  objects  to  the  magistrate's  report.  See 
S.  Rep.  No.  94-625,  pp.  9-10  (1976)  (hereafter  Senate  Re- 
port); H.  R.  Rep.  No.  94-1609,  p.  11  (1976)  (hereafter  House 
Report).  There  is  nothing  in  those  Reports,  however,  that 
demonstrates  an  intent  to  require  the  district  court  to  give 
any  more  consideration  to  the  magistrate's  report  than  the 
court  considers  appropriate.9  Moreover,  the  Subcommittee 


8  This  is  so  even  though  the  category  of  dispositive  matters  subject  to  de 
novo  review  by  the  district  judge  as  of  right  only  upon  filing  of  objections 
includes  motions  for  judgment  on  the  pleadings  and  dismissal  for  failure  to 
state  a  claim  on  which  relief  can  be  granted,  which  consist  exclusively  of 
issues  of  law.  See  n.  1,  supra. 

"Petitioner  points  to  a  passage  in  the  House  Report  that  quotes  from 
Campbell  v.  United  States  District  Court,  501  F.  2d  196,  206  (CA9),  cert, 
denied,  419  U.  S.  879  (1974).  The  Ninth  Circuit  concluded:  "If  neither 
party  contests  the  magistrate's  proposed  findings  of  fact,  the  court  may  as- 
sume their  correctness  and  decide  the  motion  on  the  applicable  law."  See 


THOMAS  v.  ARN  151 

140  Opinion  of  the  Court 

that  drafted  and  held  hearings  on  the  1976  amendments  had 
before  it  the  guidelines  of  the  Administrative  Office  of  the 
United  States  Courts  concerning  the  efficient  use  of  magis- 
trates. Those  guidelines  recommended  to  the  district  courts 
that  "[w]here  a  magistrate  makes  a  finding  or  ruling  on  a 
motion  or  an  issue,  his  determination  should  become  that  of 
the  district  court,  unless  specific  objection  is  filed  within  a 
reasonable  time."  See  Jurisdiction  of  United  States  Magis- 
trates, Hearings  on  S.  1283  before  the  Subcommittee  on  Im- 
provements in  Judicial  Machinery  of  the  Senate  Committee 
on  the  Judiciary,  94th  Cong.,  1st  Sess.,  24  (1975)  (emphasis 
added)  (hereafter  Senate  Hearings).  The  Committee  also 
heard  Judge  Metzner  of  the  Southern  District  of  New  York, 
the  chairman  of  a  Judicial  Conference  Committee  on  the  ad- 
ministration of  the  magistrate  system,  testify  that  he  person- 
ally followed  that  practice.  See  id.,  at  11  ("If  any  objections 
come  in,  ...  I  review  [the  record]  and  decide  it.  If  no  objec- 
tions come  in,  I  merely  sign  the  magistrate's  order")-10  The 

House  Report,  at  3.  However,  that  statement  was  part  of  a  longer  quota- 
tion setting  a  de  novo  review  standard  when  objections  are  filed.  The 
House  Report  stated  that  a  House  amendment,  which  called  for  de  novo 
review  in  the  same  circumstances,  was  "adopted"  from  the  Ninth  Circuit's 
decision  in  Campbell.  House  Report,  at  3.  We  believe,  therefore,  that 
the  House  Report  used  the  language  from  Campbell  only  to  support  a 
de  novo  standard  upon  the  filing  of  objections,  and  not  for  any  other 
proposition. 

10  Indeed,  Judge  Metzner  specifically  addressed  the  difference  between  a 
magistrate's  ruling  on  a  nondispositive  motion,  which  Congress  clearly  in- 
tended to  be  final'  unless  a  judge  of  the  court  exercises  his  ultimate  author- 
ity to  reconsider  the  magistrate's  determination,"  Senate  Report,  at  8,  and 
a  ruling  on  a  dispositive  motion.  Judge  Metzner  concluded:  "I  think  we 
are  talking  more  about  form,  than  we  are  of  substance."  Senate  Hearings, 
at  12. 

Moreover,  both  Judge  Metzner  and  the  Judicial  Conference  were  of 
the  opinion  that  Congress  could  probably  vest  magistrates  with  the  au- 
thority to  make  a  final  decision  on  dispositive  motions  without  violating 
Article  III,  and  that  the  language  of  §  636(b)(l)(B),  calling  for  the  magis- 
trate to  make  only  recommendations  on  dispositive  motions,  was  adopted 
out  of  an  abundance  of  caution.  See  Senate  Hearings,  at  6  (statement  of 


152  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Judicial  Conference  of  the  United  States,  which  supported 
the  de  novo  standard  of  review  eventually  incorporated  in 
§  636(b)(l)(C),  opined  that  in  most  instances  no  party  would 
object  to  the  magistrate's  recommendation,  and  the  litigation 
would  terminate  with  the  judge's  adoption  of  the  magistrate's 
report.  See  Senate  Hearings,  at  35,  37.  Congress  appar- 
ently assumed,  therefore,  that  any  party  who  was  dissatis- 
fied for  any  reason  with  the  magistrate's  report  would  file  ob- 
jections, and  those  objections  would  trigger  district  court 
review.11  There  is  no  indication  that  Congress,  in  enacting 
§  636(b)(l)(C),  intended  to  require  a  district  judge  to  review  a 
magistrate's  report  to  which  no  objections  are  filed.  It  did 
not  preclude  treating  the  failure  to  object  as  a  procedural  de- 
fault, waiving  the  right  to  further  consideration  of  any  sort. 
We  thus  find  nothing  in  the  statute  or  the  legislative  history 
that  convinces  us  that  Congress  intended  to  forbid  a  rule  such 
as  the  one  adopted  by  the  Sixth  Circuit. 

Nor  is  the  waiver  of  appellate  review  inconsistent  with  the 
purposes  of  the  Act.  The  Act  grew  out  of  Congress'  desire 
to  give  district  judges  "additional  assistance"  in  dealing  with 
a  caseload  that  was  increasing  far  more  rapidly  than  the  num- 
ber of  judgeships.  Mathews  v.  Weber,  423  U.  S.  261,  268 
(1976). ^  Congress  did  not  intend  district  judges  "to  devote  a 

Judge  Metzner);  id.,  at  35  (report  of  Judicial  Conference  of  the  United 
States).  While  we  express  no  view  on  the  accuracy  of  those  opinions,  we 
think  they  are  relevant  to  Congress'  intent.  See  also  House  Report,  at  8 
("it  is  not  feasible  for  every  judicial  act,  at  every  stage  of  the  proceeding,  to 
be  performed  by  'a  judge  of  the  court'  "). 

11  See  Senate  Hearings,  at  32  (statement  of  William  P.  Westphal,  Chief 
Counsel)  (filing  objections  as  provided  in  the  statute  "is  the  procedure  for 
them  to  follow,  if  they  feel  aggrieved  by  any  of  these  motions"). 

12  The  1976  amendments  were  prompted  by  this  Court's  decision  in 
Wingo  v.  Wedding,  418  U.  S.  461  (1974).      That  case  held  that  Congress 
had  not  intended,  in  enacting  the  Federal  Magistrates  Act  in  1968,  to  per- 
mit a  magistrate  to  conduct  an  evidentiary  hearing  on  a  habeas  corpus  peti- 
tion.    Congress  enacted  the  1976  amendments  to  "restat[e]  and  clarif  [y]" 
Congress'  intent  to  permit  magistrates  to  hold  evidentiary  hearings  and 
perform  other  judicial  functions.     See  Senate  Report,  at  3. 


THOMAS  v.  ARN  153 

140  Opinion  of  the  Court 

substantial  portion  of  their  available  time  to  various  proce- 
dural steps  rather  than  to  the  trial  itself. "  House  Report, 
at  7.  Nor  does  the  legislative  history  indicate  that  Congress 
intended  this  task  merely  to  be  transferred  to  the  court  of  ap- 
peals. It  seems  clear  that  Congress  would  not  have  wanted 
district  judges  to  devote  time  to  reviewing  magistrate's  re- 
ports except  to  the  extent  that  such  review  is  requested  by 
the  parties  or  otherwise  necessitated  by  Article  III  of  the 
Constitution.  We  now  turn  to  the  latter  question. 


Petitioner  contends  that  the  waiver  of  appellate  review 
violates  Article  III  and  the  Due  Process  Clause  of  the  Fifth 
Amendment.  Article  III  vests  the  judicial  power  of  the 
United  States  in  judges  who  have  life  tenure  and  protection 
from  decreases  in  salary.18  Although  a  magistrate  is  not  an 
Article  III  judge,  this  Court  has  held  that  a  district  court 
may  refer  dispositive  motions  to  a  magistrate  for  a  recom- 
mendation so  long  as  "the  entire  process  takes  place  under 
the  district  court's  total  control  and  jurisdiction,"  United 
States  v.  Raddatz,  447  U.  S.  667,  681  (1980),  and  the  judge 
"  *exercise[s]  the  ultimate  authority  to  issue  an  appropriate 
order/"  id.,  at  682,  quoting  Senate  Report,  at  3.  The  Sixth 
Circuit's  rule,  as  petitioner  sees  it,  permits  a  magistrate  to 
exercise  the  Article  III  judicial  power,  because  the  rule  fore- 
closes meaningful  review  of  a  magistrate's  report  at  both  the 
district  and  appellate  levels  if  no  objections  are  filed. 

We  find  that  argument  untenable.  The  waiver  of  appel- 
late review  does  not  implicate  Article  III,  because  it  is  the 


18  Article  III,  §  1,  of  the  Constitution  provides: 

"The  judicial  Power  of  the  United  States,  shall  be  vested  in  one  supreme 
Court,  and  in  such  inferior  Courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish.  The  Judges,  both  of  the  supreme  and  inferior 
Courts,  shall  hold  their  Offices  during  good  Behaviour,  and  shall,  at  stated 
Times,  receive  for  their  Services,  a  Compensation,  which  shall  not  be  di- 
minished during  their  Continuance  in  Office." 


154  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

district  court,  not  the  court  of  appeals,  that  must  exercise 
supervision  over  the  magistrate.  Even  assuming,  however, 
that  the  effect  of  the  Sixth  Circuit's  rule  is  to  permit  both  the 
district  judge  and  the  court  of  appeals  to  refuse  to  review  a 
magistrate's  report  absent  timely  objection,  we  do  not  be- 
lieve that  the  rule  elevates  the  magistrate  from  an  adjunct  to 
the  functional  equivalent  of  an  Article  III  judge.  The  rule 
merely  establishes  a  procedural  default  that  has  no  effect  on 
the  magistrate's  or  the  court's  jurisdiction.  The  district 
judge  has  jurisdiction  over  the  case  at  all  times.  He  retains 
full  authority  to  decide  whether  to  refer  a  case  to  the  magis- 
trate, to  review  the  magistrate's  report,  and  to  enter  judg- 
ment. Any  party  that  desires  plenary  consideration  by  the 
Article  III  judge  of  any  issue  need  only  ask.  Moreover, 
while  the  statute  does  not  require  the  judge  to  review  an 
issue  de  novo  if  no  objections  are  filed,  it  does  not  preclude 
further  review  by  the  district  judge,  sua  sponte  or  at  the  re- 
quest of  a  party,  under  a  de  novo  or  any  other  standard.  In- 
deed, in  the  present  case,  the  District  Judge  made  a  de  novo 
determination  of  the  petition  despite  petitioner's  failure  even 
to  suggest  that  the  Magistrate  erred.  The  Sixth  Circuit's 
rule,  therefore,  has  not  removed  "'the  essential  attributes  of 
the  judicial  power,'"  Northern  Pipeline  Co.  v.  Marathon 
Pipe  Line  Co.,  458  U.  S.  50,  77  (1982)  (plurality  opinion), 
quoting  Crowell  v.  Benson,  285  U.  S.  22,  51  (1932),  from  the 
Article  III  tribunal.14 


"The  plurality  in  Northern  Pipeline,  and  the  concurrence  in  Raddatz, 
noted  that  the  magistrate  himself  remains  under  the  district  court's  au- 
thority. The  magistrate  is  appointed,  and  subject  to  removal,  by  the  dis- 
trict court.  See  Northern  Pipeline,  458  U.  S. ,  at  79,  and  n.  30;  Raddatz, 
447  U.  S.,  at  685  (BLACKMUN,  J.,  concurring)  ("[T]he  only  conceivable  dan- 
ger of  a  'threat'  to  the  ^independence'  of  the  magistrate  comes  from  within, 
rather  than  without,  the  judicial  department").  Those  observations,  of 
course,  are  also  relevant  here,  and  again  weigh  on  the  side  of  concluding 
that  a  magistrate  remains  an  adjunct  even  though  the  district  court  and  the 
court  of  appeals  may  refuse  to  entertain  issues  that  are  not  raised  in  prop- 
erly filed  objections. 


THOMAS  v.  ARN  155 

140  Opinion  of  the  Court 

Petitioner  claims  also  that  she  was  denied  her  statutory 
right  of  appeal,  in  violation  of  the  Due  Process  Clause.  That 
right  was  not  denied,  however;  it  was  merely  conditioned 
upon  the  filing  of  a  piece  of  paper.  Petitioner  was  notified  in 
unambiguous  terms  of  the  consequences  of  a  failure  to  file, 
and  deliberately  failed  to  file  nevertheless.  We  recently 
reiterated  our  longstanding  maxim  that  'the  State  certainly 
accords  due  process  when  it  terminates  a  claim  for  failure 
to  comply  with  a  reasonable  procedural  or  evidentiary  rule." 
Logan  v.  Zimmerman  Brush  Co.,  455  U.  S.  422,  437  (1982). 
The  same  rationale  applies  to  the  forfeiture  of  an  appeal,  and 
we  believe  that  the  Sixth  Circuit's  rule  is  reasonable.  Liti- 
gants subject  to  the  Sixth  Circuit's  rule  are  afforded  "'an 
opportunity  .  .  .  granted  at  a  meaningful  time  and  in  a  mean- 
ingful manner/"  ibid.,  quoting  Armstrong  v.  Manzo,  380 
U.  S.  545,  552  (1965),  to  obtain  a  hearing  by  the  Court  of 
Appeals.  We  also  emphasize  that,  because  the  rule  is  a 
nonjurisdictional  waiver  provision,  the  Court  of  Appeals 
may  excuse  the  default  in  the  interests  of  justice.15 


We  hold  that  a  court  of  appeals  may  adopt  a  rule  condition- 
ing appeal,  when  taken  from  a  district  court  judgment  that 
adopts  a  magistrate's  recommendation,  upon  the  filing  of 
objections  with  the  district  court  identifying  those  issues  on 
which  further  review  is  desired.  Such  a  rule,  at  least  when 
it  incorporates  clear  notice  to  the  litigants  and  an  opportunity 
to  seek  an  extension  of  time  for  filing  objections,  is  a  valid 
exercise  of  the  supervisory  power  that  does  not  violate  either 
the  Federal  Magistrates  Act  or  the  Constitution.  The  judg- 
ment of  the  Court  of  Appeals  is 

Affirmed. 


15  Cf.  Fed.  Rule  Crim.  Proc.  52(b)  (court  may  correct  plain  error  despite 
failure  of  party  to  object).  We  need  not  decide  at  this  time  what  standards 
the  courts  of  appeals  must  apply  in  considering  exceptions  to  their  waiver 
rules. 


156  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

JUSTICE  BRENNAN,  with  whom  JUSTICE  BLACKMUN  joins, 
dissenting. 

Under  the  rule  adopted  by  the  United  States  Court  of  Ap- 
peals for  the  Sixth  Circuit  and  sanctioned  by  this  Court,  a 
party  waives  his  right  to  appeal  the  judgment  of  the  district 
court  by  failing  to  file  timely  objections  to  a  magistrate's 
report.  Because  this  rule  conflicts  with  the  plain  language 
of  the  Federal  Magistrate's  Act,  I  dissent. 

The  Magistrate's  Act  states  that  "any  party  may  serve  and 
file  written  objections  to  [the  magistrate's]  proposed  findings 
and  recommendations.  ...  A  judge  of  the  court  shall  make 
a  de  novo  determination  of  those  portions  of  the  report  or 
specified  proposed  findings  or  recommendations  to  which 
objection  is  made."  28  U.  S.  C.  §  636(b)(l)(C).  The  Act 
clearly  specifies  the  penalty  for  a  party's  failure  to  file  objec- 
tions to  the  magistrate's  report — the  party  loses  his  right 
to  de  novo  review  by  the  district  court.  The  Act  does  not 
require  a  party  to  file  objections.  And  it  does  not,  contrary 
to  the  Sixth  Circuit's  rule,  provide  that  a  party's  failure  to 
file  objections  deprives  him  of  the  right  to  any  review  by  the 
district  court,*  or  by  the  court  of  appeals.  Rather,  the  dis- 
trict court  judge  retains  the  power,  and  indeed  the  obliga- 
tion, to  "accept,  reject,  or  modify"  the  magistrate's  findings 
and  recommendations.  28  U.  S.  C.  §  636(b)(l)(C).  The  Act 
leaves  unaffected  a  party's  right  to  appeal  the  judgment  of 
the  district  court  to  the  court  of  appeals. 

A  habeas  applicant  is  entitled  to  appeal  only  the  final  order 
of  the  district  court.  28  U.  S.  C.  §  2253.  I  fail  to  under- 
stand how  petitioner  could  have  waived  her  right  to  appeal 
a  final  order  before  that  order  was  rendered.  The  majority 
attempts  to  justify  this  result  by  characterizing  the  Sixth 
Circuit's  rule  as  a  simple  exercise  of  its  supervisory  powers. 

*The  absence  of  an  objection  cannot  "reliev[e]  the  district  court  of  its 
obligation  to  act  judicially,  to  decide  for  itself  whether  the  Magistrate's 
report  is  correct."  Lorin  Corp.  v.  Goto  &  Co.,  700  F.  2d  1202,  1206  (CAS 
1983). 


THOMAS  u  ARN  157 

140  STEVENS,  J.,  dissenting 

While  I  do  not  question  the  Court  of  Appeals*  authority  to 
promulgate  reasonable  procedural  rules,  I  would  not  sanction 
a  rule  that  imposes  a  penalty  for  failure  to  file  objections 
beyond  that  contemplated  by  Congress,  Because  the  Sixth 
Circuit's  "supervisory  rule"  unlawfully  deprives  petitioner  of 
her  statutory  right  to  appeal  the  District  Court's  judgment,  I 
respectfully  dissent. 

JUSTICE  STEVENS,  dissenting. 

The  waiver  rule  adopted  by  the  United  States  Court  of  Ap- 
peals for  the  Sixth  Circuit  is  neither  required  nor  prohibited 
by  the  Federal  Magistrates  Act.  As  a  product  of  that  court 's 
supervisory  power,  it  need  not  conform  to  the  practice  fol- 
lowed in  other  circuits.  Hence,  despite  the  appearance  of  a 
conflict  among  the  circuits,  the  interest  in  uniform  interpre- 
tation of  federal  law  is  not  implicated  and  this  Court  might 
have  been  well  advised  simply  to  deny  the  petition  for  certio- 
rari.  Since  the  Court  has  elected  to  review  the  application  of 
the  Sixth  Circuit's  rule,  however,  I  believe  it  should  modify  it 
in  one  respect. 

As  the  Court  demonstrates,  in  most  cases  it  is  surely  per- 
missible to  treat  the  failure  to  file  timely  objections  to  a  mag- 
istrate's report  as  a  waiver  of  the  right  to  review,  not  only  in 
the  district  court,  but  in  the  court  of  appeals  as  well.  But 
our  precedents  often  recognize  an  exception  to  waiver 
rules— namely,  when  a  reviewing  court  decides  the  merits  of 
an  issue  even  though  a  procedural  default  relieved  it  of  the 
duty  to  do  so.  See,  e.  g.,  Oklahoma  City  v.  Tuttle,  471 
U.  S.  800,  815-816  (1985)  (reaching  merits  despite  failure  to 
object  to  jury  instruction  because  Court  of  Appeals  over- 
looked default);  On  Lee  v.  United  States,  343  U.  S.  747,  75O, 
n.  3  (1952)  ("Though  we  think  the  Court  of  Appeals  would 
have  been  within  its  discretion  in  refusing  to  consider  the 
point,  their  having  passed  on  it  leads  us  to  treat  the  merits 
also").  It  is  for  this  reason  that  we  may  disregard  a  proce- 
dural default  in  a  state  trial  court  if  a  state  appellate  court 
addresses  the  federal  issue.  E.  g.,  Ulster  County  Court  v. 


158  OCTOBER  TERM,  1985 

STEVENS,  J.,  dissenting  474  U.  S. 

AM,  442  U,  S,  140, 149  (1979);  Raty  v.  Ohio,  360  U,  S, 
423, 436-437  (1959).  In  such  cases,  the  reasons  for  relying 
on  the  procedural  default  as  a  bar  to  further  review  are  gen- 
erally, if  not  always,  outweighed  by  the  interest  in  having  the 
merits  of  the  issue  correctly  resolved. 

A  similar  exception  should  be  recognized  in  this  case. 
When  the  district  court  elects  to  exercise  its  power  to 
review  a  magistrate's  report  de  mx>  and  renders  an  opinion 
resolving  an  issue  on  the  merits,  there  is  no  danger  of  "sand- 
bagging" the  district  judge.  See  ante,  at  148.  Moreover,  if 
the  district  judge  has  concluded  that  there  is  enough  merit  in 
a  claim  to  warrant  careful  consideration  and  explanation  de- 
spite the  litigant's  failure  to  object  before  the  magistrate,  the 
interest  in  minimizing  the  risk  of  error  should  prevail  over 
the  interest  in  requiring  strict  compliance  with  procedural 
rules.  Because  the  District  Court  decided  the  merits  of  peti- 
tioner's claim  in  this  case,  I  would  hold  that  she  has  a  right  to 
review  in  the  Court  of  Appeals.  To  that  admittedly  limited 
extent,  I  respectfully  dissent. 


MAINE  v.  MOULTON  159 

Syllabus 

MAINE  v.  MOULTON 

CEKTIORARI  TO  THE  SUPREME  JUDICIAL  COURT  OF  MAINE 
No.  84-786.     Argued  October  8,  1985— Decided  December  10,  1986 

Respondent,  represented  by  retained  counsel,  pleaded  not  guilty  in  a 
Maine  Superior  Court  to  charges  of  theft  by  receiving  of  automotive 
vehicles  and  parts.  Respondent's  codefendant  Colson  informed  the 
police  that  he  had  received  anonymous  threatening  telephone  calls 
regarding  the  pending  charges  and  indicated  that  he  wished  to  talk  to  the 
police  about  the  charges.  Before  meeting  with  the  police,  Colson  met 
with  respondent  to  plan  for  the  upcoming  trial,  and,  according  to  Colson, 
respondent  suggested  the  possibility  of  killing  a  State's  witness.  There- 
after, Colson  and  his  lawyer  met  with  police  officers,  and  Colson  con- 
fessed to  his  participation  with  respondent  in  committing  the  crimes  for 
which  they  had  been  indicted  and  agreed  to  testify  against  respondent 
and  cooperate  in  the  prosecution  of  respondent  on  the  pending  charges  if 
no  further  charges  were  brought  against  Colson.  Colson  also  consented 
to  have  a  recording  device  placed  on  his  telephone,  and  agreed  to  record 
any  anonymous  threats  or  any  calls  from  respondent.  Having  learned 
from  recorded  telephone  calls  that  Colson  and  respondent  were  going  to 
meet  to  plan  defense  strategy  for  the  upcoming  trial,  the  police  obtained 
Colson's  consent  to  be  equipped  with  a  body  wire  transmitter  to  record 
the  meeting.  Although  Colson  was  instructed  not  to  attempt  to  ques- 
tion respondent  at  the  meeting,  his  remarks  in  fact  caused  respondent 
to  make  incriminating  statements.  The  trial  court  denied  respondent's 
pretrial  motion  to  suppress  the  recorded  statements  he  made  to  Colson 
as  having  been  obtained  in  violation  of  respondent's  right  to  the  assist- 
ance of  counsel  under  the  Sixth  and  Fourteenth  Amendments  on  the 
ground  that  the  recordings  were  made  for  other  reasons.  Some  of  re- 
spondent's recorded  incriminating  statements  made  at  the  meeting  with 
Colson  were  admitted  in  evidence,  and  respondent  was  convicted  of 
some  of  the  charges.  The  Supreme  Judicial  Court  of  Maine  reversed 
and  remanded  for  a  new  trial. 

Held:  Respondent's  Sixth  Amendment  right  to  the  assistance  of  counsel 
was  violated  by  the  admission  at  trial  of  incriminating  statements  made 
by  him  to  Colson  after  indictment  and  at  the  meeting  of  the  two  to  plan 
defense  strategy  for  the  upcoming  trial.  Pp.  168-180. 

(a)  The  assistance  of  counsel  is  necessary  to  safeguard  the  other  pro- 
cedural safeguards  provided  to  the  accused  by  the  criminal  justice  proc- 
ess. Accordingly,  the  right  to  the  assistance  of  counsel  is  not  limited  to 


160  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

participation  in  a  trial;  to  deprive  a  person  of  counsel  during  the  period 
prior  to  trial  may  be  more  damaging  than  denial  of  counsel  during  the 
trial  itself.  Whatever  else  it  may  mean,  the  right  to  counsel  means  at 
least  that  a  person  is  entitled  to  the  help  of  a  lawyer  at  or  after  the  time 
that  judicial  proceedings  have  been  initiated  against  him.  Pp.  168-170. 

(b)  Once  the  right  to  counsel  has  attached  and  been  asserted,  the 
State  must  honor  it.     At  the  very  least,  the  prosecutor  and  police  have 
an  affirmative  obligation  not  to  act  in  a  manner  that  circumvents  and 
thereby  dilutes  the  protection  afforded  by  the  right  to  counsel.     Spano 
v.  New  York,  360  U.  S.  315;  Massiah  v.  United  States,  377  U.  S.  201; 
United  States  v,  Henry,  447  U.  S.  264.     Pp.  170-174. 

(c)  The  State  misreads  Massiah,  supra,  and  Henry,  supra,  in  con- 
tending that  the  decisive  fact  in  those  cases  was  that  the  police  set  up 
the  confrontation  between  the  accused  and  a  police  agent  at  which  in- 
criminating statements  were  elicited,  and  that  thus  respondent's  Sixth 
Amendment  rights  were  not  violated  here  because  he  rather  than  Colson 
initiated  the  recorded  conversations.     The  Sixth  Amendment  guaran- 
tees the  accused,  at  least  after  the  initiation  of  formal  charges,  the  right 
to  rely  on  counsel  as  a  "medium"  between  him  and  the  State.     Knowing 
exploitation  by  the  State  of  an  opportunity  to  confront  the  accused  with- 
out counsel  being  present  is  as  much  a  breach  of  the  State's  obligation 
not  to  circumvent  the  right  to  the  assistance  of  counsel  as  is  the  inten- 
tional creation  of  such  an  opportunity.     Pp.  174-176. 

(d)  In  this  case,  the  State  clearly  violated  respondent's  Sixth  Amend- 
ment right  when  it  arranged  to  record  conversations  between  respond- 
ent and  its  undercover  informant,  Colson.  When  the  police  requested 
that  Colson  wear  a  body  wire  transmitter  to  the  meeting  with  respond- 
ent, the  police  knew  that  respondent  would  make  statements  that  he  had 
a  constitutional  right  not  to  make  to  their  agent  prior  to  consulting  with 
counsel.  By  concealing  the  fact  that  Colson  was  an  agent  of  the  State, 
the  police  denied  respondent  the  opportunity  to  consult  with  counsel 
and  thus  denied  him  the  assistance  of  counsel  guaranteed  by  the  Sixth 
Amendment.  Pp.  176—177. 

(e)  There  is  no  merit  to  the  argument  that  the  incriminating  state- 
ments obtained  by  the  police  should  not  be  suppressed  because  the  police 
had  other,  legitimate  reasons  for  listening  to  respondent's  conversations 
with  Colson,  namely,  to  investigate  respondent's  alleged  plan  to  kill  the 
State's  witness  and  to  insure  Colson's  safety.  This  same  argument  was 
rejected  in  Massiah,  supra,  where  the  Court  held  that  to  allow  the  ad- 
mission of  evidence  obtained  from  the  accused  in  violation  of  his  Sixth 
Amendment  rights  whenever  the  police  assert  the  need  to  investigate 
other  crimes  to  justify  their  surveillance  invites  abuse  by  law  enforce- 
ment personnel  in  the  form  of  fabricated  investigations  and  risks  the 


MAINE  v.  MOULTON  161 

159  Opinion  of  the  Court 

evisceration  of  the  Sixth  Amendment  right.     Evidence  obtained  that  is 
relevant  to  crimes  as  to  which  the  Sixth  Amendment  right  has  not  yet 
attached  may  be  admissible  at  a  trial  on  those  charges.     Pp.  178-180. 
481  A.  2d  155,  affirmed. 

BRENNAN,  J.,  delivered  the  opinion  of  the  Court,  in  which  MARSHALL, 
BLACKMUN,  POWELL,  and  STEVENS,  JJ.,  joined.  BURGER,  C.  J.,  filed  a 
dissenting  opinion,  in  which  WHITE  and  REHNQUIST,  JJ.,  joined,  and  in 
Parts  I  and  III  of  which  O'CONNOR,  J.,  joined,  post,  p.  181. 

Wayne  S.  Moss,  Assistant  Attorney  General  of  Maine, 
argued  the  cause  for  petitioner.  With  him  on  the  briefs 
were  James  E.  Tierney,  Attorney  General,  and  Charles  K. 
Leadbetter,  James  T.  Kilbreth  III,  and  Eric  E.  Wright, 
Assistant  Attorneys  General. 

Anthony  W.  Beardsley,  by  appointment  of  the  Court,  470 
U.  S.  1082,  argued  the  cause  for  respondent.  With  him  on 
the  brief  were  David  P.  Cluchey  and  Charles  S.  Sims.* 

JUSTICE  BRENNAN  delivered  the  opinion  of  the  Court. 

The  question  presented  in  this  case  is  whether  respond- 
ent's Sixth  Amendment  right  to  the  assistance  of  counsel  was 
violated  by  the  admission  at  trial  of  incriminating  statements 
made  by  him  to  his  codefendant,  a  secret  government  inform- 
ant, after  indictment  and  at  a  meeting  of  the  two  to  plan  de- 
fense strategy  for  the  upcoming  trial. 

I 

On  the  night  of  January  15,  1981,  police  officers  in  Belfast, 
Maine,  responded  to  a  fire  call  in  the  vicinity  of  the  Belfast 
Dodge  automobile  dealership.  Arriving  at  the  scene,  the 
officers  discovered  a  burning  Chevrolet  dump  truck  which 
they  recognized  as  a  vehicle  that  had  been  reported  stolen.1 

*  Solicitor  General  Lee,  Assistant  Attorney  General  Trott,  Deputy  So- 
licitor General  Prey,  Edwin  S.  Kneedler,  and  Kathleen  A.  Felton  filed  a 
brief  for  the  United  States  as  amicus  curiae  urging  reversal. 

1  Indeed,  in  pursuing  an  anonymous  tip  received  earlier  that  day  that  the 
stolen  truck  could  be  found  at  Belfast  Dodge,  one  of  the  officers  had  con- 
ducted a  consent  search  of  the  main  building  of  the  dealership  facility. 


162  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

After  examining  the  burning  truck,  the  officers  searched  a 
building  located  on  the  Belfast  Dodge  property.  This  build- 
ing was  not  part  of  the  dealership,  but  was  leased  to  respond- 
ent Perley  Moulton  and  his  codefendant  Gary  Colson  who 
were  using  the  space  to  restore  and  sell  old  Ford  Mustangs. 
Inside,  the  officers  discovered  evidence  of  several  recent 
automobile  and  automobile-related  thefts. 

On  April  7,  1981,  a  Waldo  County  grand  jury  returned  in- 
dictments charging  Moulton  and  Colson  with  four  counts  of 
theft  by  receiving  in  violation  of  Me.  Rev.  Stat.  Ann. ,  Tit. 
17-A,  §  359  (1983).     Specifically,  the  indictments  alleged  that 
Moulton  and  Colson  received,  retained,  or  disposed  of  a  1978 
Ford  pickup  truck,  a  1978  Chevrolet  dump  truck,  a  1970  Ford 
Mustang  automobile,   and  assorted  Ford  Motor  Company 
automotive  parts  knowing  these  to  be  stolen  and  intending  to 
deprive  the  owners  of  possession.     On  April  9,  Moulton  and 
Colson,  represented  by  retained  counsel,  appeared  before  the 
Maine  Superior  Court  for  Waldo  County  and  entered  pleas 
of  not  guilty.     Both  were  enlarged  on  bail  pending  trial. 
Numerous  proceedings,  unnecessary  to  detail  here,  occurred 
during  the  ensuing  year  and  a  half. 

On  November  4,  1982,  Colson  complained  by  telephone 
to  Robert  Keating,  Chief  of  the  Belfast  Police  Department, 
that  he  had  received  anonymous  threatening  telephone  calls 
regarding  the  charges  pending  against  him  and  Moulton, 
and  indicated  that  he  wished  to  talk  to  the  police  about 
the  charges.  Keating  told  Colson  to  speak  with  his  lawyer 
and  to  call  back. 

On  November  6,  Colson  met  with  Moulton  at  a  Belfast 
restaurant  to  plan  for  their  upcoming  trial.  According  to 
Colson,  Moulton  suggested  the  possibility  of  killing  Gary 
Elwell,  a  State's  witness,  and  they  discussed  how  to  commit 
the  murder. 

On  November  9  and  10,  Colson,  accompanied  by  his  law- 
yer, met  with  Police  Chief  Keating  and  State  Police  Detec- 
tive Rexford  Kelley.  At  these  meetings,  Colson  gave  full 


MAINE  v.  MOULTON  163 

159  Opinion  of  the  Court 

confessions  of  his  participation  -with  Moulton  in  committing 
the  crimes  for  which  they  had  been  indicted.  In  addition, 
Colson  admitted  that  he  and  Moulton  had  not  merely  re- 
ceived stolen  automotive  parts,  but  also  had  broken  into  the 
local  Ford  dealership  to  steal  the  parts.  Colson  also  stated 
that  he  and  Moulton  had  set  fire  to  the  dump  truck  and  had 
committed  other  thefts.  The  officers  offered  Colson  a  deal: 
no  further  charges  would  be  brought  against  him  if  he  would 
testify  against  Moulton  and  otherwise  cooperate  in  the  pros- 
ecution of  Moulton  on  the  pending  charges.  Colson  agreed 
to  cooperate.2 

Colson  also  discussed  with  Keating  and  Kelley  the  anony- 
mous threats  he  had  received  and  Moulton's  inchoate  plan  to 
kill  Gary  Elwell.  Keating  requested,  and  Colson  consented, 
to  have  a  recording  device  placed  on  Colson's  telephone. 
Colson  was  instructed  to  turn  the  recording  device  on  when- 
ever he  received  a  telephone  call,  but  to  turn  it  off  immedi- 
ately unless  it  was  a  threat  from  the  anonymous  caller  or  a 
call  from  Moulton. 

The  recording  device  was  on  Colson's  telephone  for  over  a 
month.  Although  he  received  no  threats,  Colson  spoke  to 
Moulton  three  times  during  this  period,  and  the  tapes  of 
these  calls  were  turned  over  to  the  police.  The  first  con- 
versation, on  November  22,  concerned  primarily  personal 
matters.  The  only  reference  to  the  pending  criminal  charges 
was  Colson's  question  whether  Moulton  had  "heard  anything 
from  the  lawyer/'  and  Moulton's  response  that  he  had  not, 
but  that  he  had  "come  up  with  a  method*'  that  he  "ha[d]  to 
work  out  the  details  on,"  and  that  "[s]orne  day  [he'd]  like  to 
get  together  and  talk  to  [Colson]  about  it."  Moulton,  then 


2  Seven  months  after  the  conclusion  of  Moulton's  trial,  Colson  pleaded 
guilty  to  two  counts  of  theft.  The  prosecutor  recommended  that  Colson  be 
sentenced  to  2  years'  imprisonment,  all  but  15  days  to  be  suspended,  and 
placed  on  probation  for  2  years.  Colson  also  agreed  to  make  restitution  up 
to  $2,000  during-  the  probationary  period.  The  trial  court  accepted  this 
recornrnendation  and  sentenced  Colson  accordingly. 


164  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

living  in  New  Hampshire,  said  that  he  was  planning  to  visit 
Belfast  around  Christmas. 

The  second  telephone  conversation,  on  December  2,  was 
prompted  by  Moulton's  receipt  of  copies  of  statements  of 
three  of  the  State's  witnesses,  including  Elwell;  Colson  had 
not  yet  received  copies  of  the  statements.     Most  of  their  talk 
(on  Moulton's  side  particularly)  was  about  the  statements  of 
Elwell  and  ElwelTs  brother,   which  accused  Moulton  and 
Colson  of  being  guilty  of  the  pending  charges  and  which 
Moulton  complained  were  an  attempt  to  frame  him  and 
Colson.     After  reading  Colson  a  statement  by  Elwell  that  he 
had  received  a  threatening  phone  call,  Moulton  commented 
"[t]his  is  a  big  joke,  man."8     When  Colson  jokingly  sug- 
gested that  they  flee  to  Acapulco,  Moulton  vehemently  re- 
jected the  suggestion,  stating:  "No,  I'm  gonna  stay  here  and 
I'm  gonna  fight  it  man.      I'm  gonna  fight  it  man.      I  ain't 
gonna  get  framed  for  nothing."     Colson  assented  to  this  and 
suggested,    "we'll   have   to   get   together    sometime  .  .  .  ." 
Moulton  reminded  Colson  that  he  would  be  visiting  at  Christ- 
mas, and  the  conversation  ended  without  Moulton  having 
said  anything  that  incriminated  him. 

The  third  telephone  conversation,  which  took  place  on 
December  14,  was  similar  to  the  second  one.  Most  of  the 
conversation  concerned  the  pending  charges,  but  Moulton 
said  nothing  inculpatory  and  continued  to  insist  that  he  and 
Colson  were  being  framed.  Moulton  asked  Colson  to  set 
aside  an  entire  day  so  that  the  two  of  them  could  meet  and 
plan  their  defense.  They  agreed  to  meet  on  Sunday,  Decem- 
ber 26. 

After  learning  from  the  telephone  recordings  about  the 
meeting  planned  for  December  26,  the  police  obtained 
Colson's  consent  to  be  equipped  with  a  body  wire  transmitter 
to  record  what  was  said  at  the  meeting.  Chief  Keating  later 
testified  that  he  did  this  for  Colson's  safety  in  case  Moulton 

8  Colson  testified  that  he  never  told  Moulton  about  the  threatening  calls 
that  he  had  received. 


MAINE  DL  MOULTON  165 

159  Opinion  of  the  Court 

realized  that  Colson  was  cooperating  with  the  police,  and 
to  record  any  further  conversation  concerning  threats  to 
witnesses.  Keating  also  testified  that  he  was  aware  that 
Moulton  and  Colson  were  meeting  to  discuss  the  charges  for 
which  Moulton  was  already  under  indictment.  Colson  was 
instructed  "not  to  attempt  to  question  Perley  Moulton,  just 
be  himself  in  his  conversation  .  .  .  ." 

The  December  26  meeting,  as  was  to  be  expected  from  the 
recorded  telephone  conversations,  consisted  of  a  prolonged 
discussion  of  the  pending  charges— what  actually  had  oc- 
curred, what  the  State's  evidence  would  show,  and  what 
Moulton  and  Colson  should  do  to  obtain  a  verdict  of  acquittal. 
The  idea  of  eliminating  witnesses  was  briefly  mentioned  early 
in  the  conversation.  After  a  short  discussion,  encouraged  by 
Colson,4  Moulton  concluded  that  he  did  not  think  the  plan 
would  work.  The  remainder  of  the  lengthy  meeting  was 
spent  discussing  the  case.  Moulton  and  Colson  decided  to 
create  false  alibis  as  their  defense  at  trial.  Because  they 
sought  to  conform  these  alibis  as  closely  as  possible  to  what 
really  happened,  much  of  their  discussion  involved  recount- 
ing the  crimes.  Although  Colson  had  described  what  had 
happened  in  detail  when  he  confessed  to  the  police  a  month 
earlier,  he  now  frequently  professed  to  be  unable  to  recall  the 


4  The  exchange  went  as  follows: 

"[Moulton:]  You  know  I  thought  of  a  way  to  eliminate  them.     Remember 
we  were  talking  about  it  before? 

"[Colson:]  Yes,  you  thought  of  a  way? 

"[Moulton:]  Yeah,  but  ...  I  don't  think  we  ought  to  go  for  it. 

"[Colson:]  Is  it  foolproof? 

"[Moulton:]  No. 

"[Colson:]  Is  it,  is  it  fairly  foolproof? 

"[Moulton:]  I  like  it.     I  think  its  just  for  the  .... 

"[Colson:]  Well  let  me  [hear  it]." 

Moulton  explained  that  he  had  considered  using  air  rifles  to  shoot  poisoned 
darts  and  the  conversation  then  turned  to  joking  about  a  magazine  that 
instructed  readers  how  to  build  bombs  to  kill  large  numbers  of  people. 
Exh.  S-4,  Tr.  of  Dec.  26  Meeting  18-19. 


166  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

events.      Apologizing  for  his  poor  memory,  he  repeatedly 
asked  Moulton  to  remind  him  about  the  details  of  what  had 
happened,  and  this  technique  caused  Moulton  to  make  nu- 
merous incriminating  statements.5     Nor  were  all  of  Colson's 
memory  lapses  related  to  events  that  required  discussion  to 
fabricate  convincing  alibis.     Colson  also  "reminisced"  about 
events  surrounding  the  various  thefts,  and  this  technique  too 
elicited  additional  incriminating  statements  from  Moulton. 
For  example,  Colson  asked  Moulton  how  many  locks  they  had 
drilled  to  steal  a  truck,  a  fact  obviously  not  relevant  to  devel- 
oping an  alibi.     Similarly,  Colson  questioned  Moulton  about 
whether  it  was  the  Mustang  or  the  pickup  truck  that  did  not 
have  a  heater.    Later,  Colson  jokingly  drew  forth  admissions 
from  Moulton  concerning  the  dumping  of  a  stolen  truck  into  a 
pond  after  it  had  been  scavenged  for  parts,  and  the  dumping 
of  a  load  of  potatoes  from  another  stolen  truck  onto  the  road. 
Each  of  these  statements  was  later  admitted  into  evidence 
against  Moulton  at  trial. 

Moulton  filed  a  pretrial  motion  to  suppress  recorded  state- 
ments he  made  to  Colson  in  the  three  telephone  conversa- 
tions and  at  the  December  26  meeting,  arguing,  inter  alia, 
that  the  statements  were  obtained  in  violation  of  the  Sixth 
and  Fourteenth  Amendments.  After  a  hearing,  the  trial 
court  denied  the  motion.  The  trial  court  found  that  the 
recordings  were  made  "in  order  to  gather  information  con- 
cerning the  anonymous  threats  that  Mr.  Colson  had  been 


5  Colson  began  doing  this  immediately  after  Moulton  vetoed  the  plan  to 
eliminate  witnesses.  Colson  indicated  that  he  did  not  have  copies  of  all  the 
discovery  materials,  and  Moulton  went  outside  to  his  car  to  get  his  copies. 
While  Moulton  was  gone,  Colson  sighed  heavily  and  whispered  "[o]h  boy,  I 
just  hope  I  can  make  it  through  this"  into  the  microphone.  Then,  when 
Moulton  returned  moments  later,  Colson  immediately  stated,  slowly  and 
deliberately:  "I  want  you  to  help  me  with  some  dates.  One  date  I  cannot 
remember  Caps  [Moulton's  nickname],  just  can't  remember,  I  know  it  was 
in  December,  what  night  did  we  break  into  Lothrop  Ford?  What  date?" 
7d.,  at  23. 


MAINE  u  MOULTON  167 

159  Opinion  of  the  Court 

receiving,  to  protect  Mr.  Colson  and  to  gather  information 
concerning  defendant  Moulton' s  plans  to  kill  Gary  Elwell." 

Meanwhile,  after  Colson's  role  as  an  informant  had  been 
revealed  to  Moulton,  the  State  had  the  pending  indictments 
dismissed  and  obtained  seven  new  indictments  against  Moul- 
ton. These  indictments  realleged  the  pending  charges,  and 
charged  Moulton  in  addition  with  burglary,  arson,  and  three 
more  thefts.  Moulton  pleaded  guilty  to  the  charges  con- 
tained in  two  of  these  indictments,  and  the  trial  court  dis- 
missed two  more  for  improper  venue.  Moulton  waived  his 
right  to  a  jury  and  proceeded  to  trial  on  the  remaining  three 
indictments,  which  covered  the  subjects  of  the  original  indict- 
ments and  charged  him  with  burglary,  arson,  and  theft.  At 
the  trial,  the  State  did  not  offer  into  evidence  anything  from 
the  recorded  telephone  conversations,  but  did  offer  portions 
of  the  tapes  of  the  December  26  meeting,  principally  those 
involving  direct  discussion  of  the  thefts  for  which  Moulton 
was  originally  indicted.  The  State  did  not  offer  the  portion 
of  the  meeting  during  which  Moulton  and  Colson  discussed 
the  possibility  of  killing  witnesses  and  offered  only  one 
portion  of  the  discussion  about  developing  false  testimony. 
At  the  conclusion  of  the  trial,  the  court  dismissed  one  more 
count  of  theft  for  improper  venue  and  found  Moulton  not 
guilty  of  the  arson  charge.  The  court  found  Moulton  guilty, 
however,  of  burglary  and  theft  in  connection  with  the  Ford 
pickup  truck,  the  Chevrolet  dump  truck,  and  the  Ford  auto- 
motive parts. 

Moulton  appealed  these  convictions  on  the  ground  that 
the  admission  into  evidence  of  his  statements  to  Colson  vio- 
lated his  Sixth  Amendment  right  to  the  assistance  of  counsel. 
The  State  filed  a  cross-appeal  objecting  to  the  dismissal  of 
charges  for  improper  venue.  The  Supreme  Judicial  Court  of 
Maine  granted  both  appeals  and  remanded  for  a  new  trial. 
481  A.  2d  155  (1984).  Regarding  the  admission  of  Moulton's 
recorded  statements  to  Colson,  the  court  agreed  that  there 
was  "ample  evidence"  to  support  the  trial  court's  finding  that 


168  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

the  police  wired  Colson  for  legitimate  purposes,  but  held  that 
"[reference  to  the  State's  legitimate  motive  may  be  relevant 
to,  but  cannot  wholly  refute,  the  alleged  infringement  of 
Moulton's  right  to  counsel."  Id.,  at  160.  The  court  held 
that  the  State  cannot  use  against  Moulton  at  trial  recordings 
of  conversations  where  the  State  "knew,  or  should  have 
known"  that  Moulton  would  make  incriminating  statements 
regarding  crimes  as  to  which  charges  were  already  pending. 
Pointing  to  Moulton's  close  relationship  with  Colson,  the  fact 
that  the  purpose  of  their  meeting  was  to  discuss  the  pending 
charges,  and  the  fact  that  at  the  time  of  the  meeting  Colson 
was  "fully  cooperating  with  the  police  and  no  longer  stood  in 
the  same  adversarial  position  as  did  Moulton,"  the  court  held: 

<rWhen  the  police  recommended  the  use  of  the  body 
wire  to  Colson  they  intentionally  created  a  situation  that 
they  knew,  or  should  have  known,  was  likely  to  result  in 
Moulton's  making  incriminating  statements  during  his 
meeting  with  Colson.     The  police's  valid  purpose  in  in- 
vestigating threats  against  witnesses  does  not  immunize 
the  recordings  of  Moulton's  incriminating   statements 
from  constitutional  attack.      Those  statements  may  be 
admissible  in  the  investigation  or  prosecution  of  charges 
for  which,  at  the  time  the  recordings  were  made,  adver- 
sary proceedings  had  not  yet  commenced.     But  as  to  the 
charges  for  which  Moulton's  right  to  counsel  had  already 
attached,  his  incriminating  statements  should  have  been 
ruled  inadmissible  at  trial,  given  the  circumstances  in 
which  they  were  acquired."     Id.,  at  161. 

We  granted  the  State's  petition  for  certiorari.      469  U.  S. 
1206.     We  affirm. 

II 

A 

The  right  to  the  assistance  of  counsel  guaranteed  by  the 
Sixth  and  Fourteenth  Amendments  is  indispensable  to  the 
fair  administration  of  our  adversarial  system  of  criminal  jus- 


MAINE  v.  MOULTON  169 

159  Opinion  of  the  Court 

tice.6  Embodying  "a  realistic  recognition  of  the  obvious 
truth  that  the  average  defendant  does  not  have  the  profes- 
sional legal  skill  to  protect  himself,"  Johnson  v.  Zerbst,  304 
U.  S.  458,  462-463  (1938),  the  right  to  counsel  safeguards  the 
other  rights  deemed  essential  for  the  fair  prosecution  of  a 
criminal  proceeding.  Justice  Sutherland's  oft-quoted  ex- 
planation in  Powell  v.  Alabama,  287  U.  S.  45  (1932),  bears 
repetition  here: 

"The  right  to  be  heard  would  be,  in  many  cases,  of  little 
avail  if  it  did  not  comprehend  the  right  to  be  heard  by 
counsel.  Even  the  intelligent  and  educated  layman  has 
small  and  sometimes  no  skill  in  the  science  of  law.  If 
charged  with  crime,  he  is  incapable,  generally,  of  deter- 
mining for  himself  whether  the  indictment  is  good  or 
bad.  He  is  unfamiliar  with  the  rules  of  evidence.  Left 
without  the  aid  of  counsel  he  may  be  put  on  trial  without 
a  proper  charge,  and  convicted  upon  incompetent  evi- 
dence, or  evidence  irrelevant  to  the  issue  or  otherwise 
inadmissible.  He  lacks  both  the  skill  and  knowledge 
adequately  to  prepare  his  defense,  even  though  he  have 
a  perfect  one.  He  requires  the  guiding  hand  of  counsel 
at  every  stage  of  the  proceedings  against  him/*  Id., 


8  Justice  Black  explained  in  Gideon  v.  Waimvright,  372  U.  S.  335  (1963)- 
"[Rleason  and  reflection  require  us  to  recognize  that  in  our  adversary  sys- 
tem of  criminal  justice,  any  person  haled  into  court  .  .  .  cannot  be  assured  a 
fair  trial  unless  counsel  is  provided  for  him.  This  seems  to  us  to  be  an 
obvious  truth.  Governments,  both  state  and  federal,  quite  properly  spend 
vast  sums  of  money  to  establish  machinery  to  try  defendants  accused  of 
crime.  Lawyers  to  prosecute  are  everywhere  deemed  essential  to  protect 
the  public's  interest  in  an  orderly  society.  Similarly,  there  are  few  de- 
fendants charged  with  crime,  few  indeed,  who  fail  to  hire  the  best  lawyers 
they  can  get  to  prepare  and  present  their  defenses.  That  government 
hires  lawyers  to  prosecute  and  defendants  who  have  the  money  hire  law- 
yers to  defend  are  the  strongest  indications  of  the  widespread  belief  that 
lawyers  in  criminal  courts  are  necessities,  not  luxuries.  The  right  of  one 
charged  with  crime  to  counsel  may  not  be  deemed  fundamental  and  essen- 
tial to  fair  trials  in  some  countries,  but  it  is  in  ours."  Id  ,  at  344. 


170  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

at  68-69  (quoted  in  Gideon  v.  Wainwright,  372  U.  S. 
335,  344-345  (1963)). 

As  indicated  in  the  last  sentence  of  this  paragraph,  the 
Court  has  also  recognized  that  the  assistance  of  counsel  can- 
not be  limited  to  participation  in  a  trial;  to  deprive  a  person  of 
counsel  during  the  period  prior  to  trial  may  be  more.damag- 
ing  than  denial  of  counsel  during  the  trial  itself.     Recogniz- 
ing that  the  right  to  the  assistance  of  counsel  is  shaped  by  the 
need  for  the  assistance  of  counsel,  we  have  found  that  the 
right  attaches  at  earlier,  "critical"  stages  in  the  criminal 
justice  process  "where  the  results  might  well  settle  the 
accused's  fate  and  reduce  the  trial  itself  to  a  mere  formality." 
United  States  v.  Wade,  388  U.  S.  218,  224  (1967)  (quoted  in 
United  States  v.  Gouveia,  467  U.  S.  180,  189  (1984)).      See, 
e.  g.,  Coleman  v.  Alabama,  399  U.  S.  1  (1970);  Hamilton  v. 
Alabama,  368  U.  S.  52  (1961);  White  v.  Maryland,  373  U.  S. 
59  (1963);  Escobedo  v.  Illinois,  378  U.  S.  478  (1964);  Kirby  v. 
Illinois,  406  U.  S.  682  (1972).     And,  "[w]hatever  else  it  may 
mean,  the  right  to  counsel  granted  by  the  Sixth  and  Four- 
teenth Amendments  means  at  least  that  a  person  is  entitled 
to  the  help  of  a  lawyer  at  or  after  the  time  that  judicial  pro- 
ceedings have  been  initiated  against  him  .  .  .  ."     Brewer  v. 
Williams,  430  U.  S.  387,  398  (1977).     This  is  because,  after 
the  initiation  of  adversary  criminal  proceedings,  "  'the  gov- 
ernment has  committed  itself  to  prosecute,  and  .  .  .  the  ad- 
verse positions  of  government  and  defendant  have  solidified. 
It  is  then  that  a  defendant  finds  himself  faced  with  the  pros- 
ecutorial  forces  of  organized  society,  and  immersed  in  the 
intricacies   of  substantive   and   procedural   criminal   law.'" 
Gouveia,  supra,  at  189  (quoting  Kirby  v.   Illinois,   supra, 
at  689). 

B 

Once  the  right  to  counsel  has  attached  and  been  asserted, 
the  State  must  of  course  honor  it.7     This  means  more  than 


7  Cf.  Brewer  v.  Williams,  430  U.  S.  387  (1977):  "[T]he  lawyer  is  the  es- 
sential medium  through  which  the  demands  and  commitments  of  the  sover- 


MAINE  v.  MOULTON  171 

159  Opinion  of  the  Court 

simply  that  the  State  cannot  prevent  the  accused  from  ob- 
taining the  assistance  of  counsel.  The  Sixth  Amendment 
also  imposes  on  the  State  an  affirmative  obligation  to  respect 
and  preserve  the  accused's  choice  to  seek  this  assistance. 
We  have  on  several  occasions  been  called  upon  to  clarify  the 
scope  of  the  State's  obligation  in  this  regard,  and  have  made 
clear  that,  at  the  very  least,  the  prosecutor  and  police  have 
an  affirmative  obligation  not  to  act  in  a  manner  that  circum- 
vents and  thereby  dilutes  the  protection  afforded  by  the  right 
to  counsel. 

In  Spano  v.  New  York,  360  U.  S.  315  (1959),  the  defend- 
ant, who  had  already  been  indicted,  was  coercively  interro- 
gated by  police  until  the  early  hours  of  the  morning  despite 
his  repeated  requests  to  see  his  lawyer.  A  unanimous  Court 
reversed  his  conviction  on  the  ground  that  the  confession  ob- 
tained by  this  interrogation  was  involuntary  and  therefore 
should  not  have  been  admitted  into  evidence  at  trial.  Four 
Justices,  in  two  concurring  opinions,  stated  that  they  would 
also  have  reached  this  result  on  the  ground  that  Spano's 
Sixth  Amendment  right  to  the  assistance  of  counsel  was  vio- 
lated. These  Justices  reasoned  that  to  permit  police  to 
'^produce  the  vital  evidence  in  the  form  of  a  confession  which 
is  useful  or  necessary  to  obtain  a  conviction"  in  the  absence  of 
counsel,  after  the  right  to  counsel  has  attached,  is  to  deny  the 
accused  "effective  representation  by  counsel  at  the  only  stage 
when  legal  aid  and  advice  would  help  htm."  Id.,  at  325-326 
(Douglas,  J.,  concurring,  joined  by  Black  and  BRENNAN,  JJ.); 
see  also,  id.,  at  326-327  (Stewart,  J.,  concurring,  joined  by 
Douglas  and  BRENNAN,  JJ.).  As  Justice  Douglas  succinctly 
put  the  point,  "what  use  is  a  defendant's  right  to  effective 
counsel  at  every  stage  of  a  criminal  case  if,  while  he  is  held 
awaiting  trial,  he  can  be  questioned  in  the  absence  of  counsel 
until  he  confesses?"  Id.,  at  326. 


eign  are  communicated  to  the  citizen.  If,  in  the  long  run,  we  are  seriously 
concerned  about  the  individual's  effective  representation  by  counsel,  the 
State  cannot  be  permitted  to  dishonor  its  promise  to  this  lawyer."  Id.,  at 
415  (STEVENS,  J.,  concurring)  (footnote  omitted). 


172  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

The  position  of  the  concurring  Justices  in   Spano  was 
adopted  by  the  Court  in  Massiah  v.  United  States,  377  U.  S. 
201  (1964).     Massiah  was  indicted,  along  with  a  man  named 
Colson,8  for  conspiracy  to  possess  and  to  distribute  cocaine. 
Massiah  retained  a  lawyer,  pleaded  not  guilty  and  was  re- 
leased on  bail.      Colson,  meanwhile,  decided  to  cooperate 
with  Government  agents  in  their  continuing  investigation  of 
the  narcotics  activity  in  which  Massiah  and  others  were 
thought  to  be  engaged.      Colson  permitted  a  Government 
agent  to  install  a  radio  transmitter  under  the  front  seat  of  his 
automobile.      Massiah   held   a   lengthy   conversation    with 
Colson  in  this  automobile  while  a  Government  agent  listened 
over  the  radio.     Massiah  made  several  incriminating  state- 
ments, and  these  were  brought  before  the  jury  through  the 
testimony  of  the  Government  agent.     We  reversed  Massiah's 
conviction  on  the  ground  that  the  incriminating  statements 
were  obtained  in  violation  of  Massiah's  rights  under  the  Sixth 
Amendment.     The  Court  stressed  the  fact  that  the  interview 
took  place  after  indictment,  at  a  time  when  Massiah  was 
clearly  entitled  to  the  assistance  of  counsel.     Relying  on  Jus- 
tice Douglas*  Spano  concurrence,  the  Court  concluded  that 
the  need  for,  and  consequently  the  right  to,  the  assistance  of 
counsel  applied  equally  in  this  extrajudicial  setting  as  at  the 
trial  itself.     377  U.  S.,  at  204.9     Consequently,  the  Court 
held: 


8  The  parties  have  taken  pains  to  assure  us  that  Massiah's  friend  Colson 
and  Moulton's  friend  Colson  are  unrelated. 

9  Justice  Stewart  noted  that  this  view  of  the  right  to  counsel  "no  more 
than  reflects  a  constitutional  principle  established  as  long  ago  as  Powell  v. 
Alabama,"  where  the  Court  noted  that 

"'during  perhaps  the  most  critical  period  of  the  proceedings  .  .  .  that  is  to 
say,  from  the  time  of  their  arraignment  until  the  beginning  of  their  trial, 
when  consultation,  thoroughgoing  investigation  and  preparation  [are] 
vitally  important,  the  defendants  [are]  as  much  entitled  to  such  aid  [of 
counsel]  ...  as  at  the  trial  itself.'"  Massiah,  377  U.  S.,  at  205  (quoting 
Powell  v.  Alabama,  287  U.  S.  45,  57  (1932)). 


MAINE  u  MOULTON  173 

159  Opinion  of  the  Court 

"[Massiah]  was  denied  the  basic  protections  of  [the  right 
to  the  assistance  of  counsel]  when  there  was  used  against 
him  at  trial  evidence  of  his  own  incriminating  words, 
which  federal  agents  had  deliberately  elicited  from  him 
after  he  had  been  indicted  and  in  the  absence  of  his  coun- 
sel." Id.,  at  206. 

We  applied  this  principle  most  recently  in  United  States  v. 
Henry,  447  U.  S.  264  (1980).  Henry  was  arrested  and  in- 
dicted for  bank  robbery.  Counsel  was  appointed,  and  Henry 
was  held  in  jail  pending  trial.  Nichols,  an  inmate  at  the 
same  jail  and  a  paid  informant  for  the  Federal  Bureau  of 
Investigation,  told  a  Government  agent  that  he  was  housed 
in  the  same  cellblock  as  several  federal  prisoners,  including 
Henry.  The  agent  told  Nichols  to  pay  attention  to  state- 
ments made  by  these  prisoners,  but  expressly  instructed 
Nichols  not  to  initiate  any  conversations  and  not  to  question 
Henry  regarding  the  bank  robbery.  Nichols  and  Henry 
subsequently  engaged  in  some  conversations  during  which 
Henry  told  Nichols  about  the  robbery.  Nichols  testified 
about  these  conversations  at  Henry's  trial,  and  Henry  was 
convicted. 

This  Court  reversed,  finding  that  the  Government  had 
"  'deliberately  elicited'  incriminating  statements  from  Henry 
within  the  meaning  of  Massiah."  Id.,  at  270.  Several  facts 
were  emphasized  in  THE  CHIEF  JUSTICE'S  opinion  for  the 
Court:  that  Nichols  was  acting  as  an  informant  for  the  Gov- 
ernment and  therefore  had  an  incentive  to  produce  useful 
information;  that  Henry  was  unaware  of  Nichols'  role  as  a 
Government  informant;  and,  finally,  that  Henry  and  Nichols 
were  incarcerated  together  at  the  time  the  conversations 
took  place.  With  respect  to  this  last  fact,  the  Court  rea- 
soned that  "confinement  may  bring  into  play  subtle  influences 
that  will  make  [an  individual]  particularly  susceptible  to  the 
ploys  of  undercover  Government  agents,"  influences  that 
were  facilitated  by  Nichols'  "apparent  status  as  a  person 
sharing  a  common  plight."  Id.,  at  274.  Considering  Nich- 


174  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

ols'  conversations  with  Henry  in  light  of  these  circumstances, 
the  Court  concluded  that  Nichols  "deliberately  used  his  posi- 
tion to  secure  incriminating  information  from  Henry  when 
counsel  was  not  present"  in  violation  of  the  Sixth  Amend- 
ment.     Id.,  at  270-271.     The  Government  argued  that  it 
should  not  be  held  responsible  for  Nichols'  conduct  because 
its  agent  had  instructed  Nichols  not  to  question  Henry  and 
had  not  intended  that  Nichols  take  affirmative  steps  to  obtain 
incriminating  statements.     We  rejected  this  argument,  find- 
ing that,  under  the  circumstances,  the  agent  **must  have 
known"  that  Nichols  would  take  affirmative  steps  to  secure 
incriminating  information.     Id.,  at  271.     Consequently,  the 
Court  held,  "[b]y  intentionally  creating  a  situation  likely  to 
induce  Henry  to  make  incriminating  statements  without  the 
assistance  of  counsel,  the  Government  violated  Henry's  Sixth 
Amendment  right  to  counsel."     Id.,  at  274. 


The  State  contends  that  the  decisive  fact  in  Massiah  and 
Henry  was  that  the  police  set  up  the  confrontation  between 
the  accused  and  a  police  agent  at  which  incriminating  state- 
ments were  elicited.  Supported  by  the  United  States  as 
amicus  curiae,  the  State  maintains  that  the  Sixth  Amend- 
ment is  violated  only  when  police  intentionally  take  this  or 
some  equivalent  step.  Because  Moulton  rather  than  Colson 
initiated  the  recorded  telephone  conversations  and  requested 
the  December  26  meeting,  the  State  concludes  that  Moulton's 
Sixth  Amendment  rights  were  not  violated  here. 

In  the  first  place,  the  identity  of  the  party  who  instigated 
the  meeting  at  which  the  Government  obtained  incriminating 
statements  was  not  decisive  or  even  important  to  our  deci- 
sions in  Massiah  or  Henry.  Thus,  while  in  Massiah  it  may 
have  been  the  Government  agent  who  was  responsible  for 
setting  up  the  meeting  with  the  defendant,10  one  discovers 

10  It  is  not  clear  whether  the  informant  asked  to  meet  with  Massiah  or 
vice  versa.  Both  the  opinion  for  the  Second  Circuit  and  the  dissent  state 


MAINE  u  MOULTON  175 

159  Opinion  of  the  Court 

this  only  by  looking  to  the  opinions  of  the  Court  of  Appeals. 
It  is  not  mentioned  in  this  Court's  opinion  since  the  issue  of 
who  set  up  the  meeting  with  whom  was  not  pertinent  to  our 
disposition.  Moreover,  four  years  after  Massiah,  the  Court 
summarily  reversed  a  conviction  where  the  defendant  re- 
quested the  meeting  and  initiated  and  led  the  conversation  in 
which  incriminating  statements  were  made  to  an  undercover 
informant.  Beatty  v.  United  States,  389  U.  S.  45  (1967)  (per 
curiam).  In  that  case,  the  Solicitor  General  made  the  same 
argument  that  he  and  the  State  make  today,  see  Brief  in 
Opposition,  Beatty  v.  United  States,  O.  T.  1967,  No.  338, 
pp.  5-8;  we  rejected  this  argument  in  an  opinion  that  simply 
cited  Massiah.^  Finally,  in  Henry,  we  deemed  it  "irrele- 
vant that  in  Massiah  the  agent  had  to  arrange  the  meeting 
between  Massiah  and  his  codefendant  while  here  the  agents 
were  fortunate  enough  to  have  an  undercover  informant 
already  in  close  proximity  to  the  accused."  447  U.  S.,  at 
272,  n.  10. 

only  that,  on  the  instructions  of  a  Government  agent,  Colson  invited 
Massiah  into  his  car  to  discuss  their  case;  neither  opinion  establishes  who 
requested  the  meeting  in  the  first  place.  See  United  States  v.  Massiah, 
307  F.  2d  62,  66  (1962);  id.,  at  72  (Hays,  J.,  dissenting).  It  is  quite  plausi- 
ble that  Massiah  asked  to  see  Colson  who  then  proposed  meeting  in  his  car. 
In  fact,  there  is  nothing  in  the  record  in  Massiah  to  support  even  the  asser- 
tion of  the  Court  of  Appeals  that  Colson  rather  than  Massiah  suggested 
meeting  in  Colson's  car,  although  the  inference  is  logical  enough.  See 
App.  to  Brief  for  United  States  in  Massiah  v.  United  States,  O.  T.  1963, 
No.  199,  pp.  125a-175a  (testimony  of  Agent  Murphy). 

11  In  his  amicus  brief  for  the  United  States  in  this  case,  the  Solicitor 
General  suggests  that  Beatty  did  not  survive  Brewer  v.  Williams,  430 
U.  S.  387  (1977),  which,  he  contends,  modified  Massiah  to  require  affirma- 
tive interrogation  by  the  Government.  Brief  for  United  States  as  Amides 
Curiae  17,  n.  12.  That  argument,  however,  was  expressly  rejected  when 
the  Solicitor  General  made  it  in  Henry.  See  447  U.  S.,  at  271  (''While 
affirmative  interrogation,  absent  waiver,  would  certainly  satisfy  Massiah, 
we  are  not  persuaded,  as  the  Government  contends,  that  Brewer  v.  Wil- 
liams .  .  .  modified  Massiah's  'deliberately  elicited'  test").  Cf.  also,  Brief 
for  United  States  in  United  States  v.  Henry,  O.  T.  1979,  No.  121,  p.  26, 
n.  12. 


176  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Beyond  this,   the  State's  attempt  to  limit  our  holdings 
in  Massiah  and  Henry  fundamentally  misunderstands  the 
nature  of  the  right  we  recognized  in  those  cases.     The  Sixth 
Amendment  guarantees  the  accused,  at  least  after  the  initia- 
tion of  formal  charges,  the  right  to  rely  on  counsel  as  a  "me- 
dium" between  him  and  the  State.      As  noted  above,  this 
guarantee  includes  the  State's  affirmative  obligation  not  to 
act  in  a  manner  that  circumvents  the  protections  accorded 
the   accused  by  invoking  this   right.      The   determination 
whether   particular   action    by    state    agents    violates    the 
accused's  right  to  the  assistance  of  counsel  must  be  made  in 
light  of  this  obligation.     Thus,  the  Sixth  Amendment  is  not 
violated  whenever— by  luck  or  happenstance — the  State  ob- 
tains incriminating  statements  from  the  accused  after  the 
right  to  counsel  has  attached.     See  Henry,  447  U.  S.,  at  276 
(POWELL,  J.,  concurring).     However,  knowing  exploitation 
by  the  State  of  an  opportunity  to  confront  the  accused  with- 
out counsel  being  present  is  as  much  a  breach  of  the  State's 
obligation  not  to  circumvent  the  right  to  the  assistance  of 
counsel  as  is  the  intentional  creation  of  such  an  opportunity. 
Accordingly,  the  Sixth  Amendment  is  violated  when  the 
State  obtains  incriminating  statements  by  knowingly  circum- 
venting the  accused's  right  to  have  counsel  present  in  a  con- 
frontation between  the  accused  and  a  state  agent.12 

Ill 

Applying  this  principle  to  the  case  at  hand,  it  is  clear  that 
the  State  violated  Moulton's  Sixth  Amendment  right  when  it 
arranged  to  record  conversations  between  Moulton  and  its 
undercover  informant,  Colson.  It  was  the  police  who  sug- 
gested to  Colson  that  he  record  his  telephone  conversations 
with  Moulton.  Having  learned  from  these  recordings  that 

12  Direct  proof  of  the  State's  knowledge  will  seldom  be  available  to  the 
accused.  However,  as  Henry  makes  clear,  proof  that  the  State  "must 
have  known"  that  its  agent  was  likely  to  obtain  incriminating  statements 
from  the  accused  in  the  absence  of  counsel  suffices  to  establish  a  Sixth 
Amendment  violation.  See  447  U.  S.,  at  271. 


MAINE  u  MOULTON  177 

159  Opinion  of  the  Court 

Moulton  and  Colson  were  going  to  meet,  the  police  asked 
Colson  to  let  them  put  a  body  wire  transmitter  on  him  to 
record  what  was  said.  Police  Chief  Keating  admitted  that, 
when  they  made  this  request,  the  police  knew— as  they  must 
have  known  from  the  recorded  telephone  conversations  — 
that  Moulton  and  Colson  were  meeting  for  the  express  pur- 
pose of  discussing  the  pending  charges  and  planning  a  de- 
fense for  the  trial.18  The  police  thus  knew  that  Moulton 
would  make  statements  that  he  had  a  constitutional  right  not 
to  make  to  their  agent  prior  to  consulting  with  counsel.  As 
in  Henry,  the  fact  that  the  police  were  "fortunate  enough  to 
have  an  undercover  informant  already  in  close  proximity  to 
the  accused"  does  not  excuse  their  conduct  under  these 
circumstances.  447  U.  S.,  at  272,  n.  10.  By  concealing 
the  fact  that  Colson  was  an  agent  of  the  State,  the  police 
denied  Moulton  the  opportunity  to  consult  with  counsel  and 
thus  denied  him  the  assistance  of  counsel  guaranteed  by  the 
Sixth  Amendment.14 

18  Because  Moulton  thought  of  Colson  only  as  his  codefendant,  Colson's 
engaging  Moulton  in  active  conversation  about  their  upcoming  trial  was 
certain  to  elicit  statements  that  Moulton  would  not  intentionally  reveal — 
and  had  a  constitutional  right  not  to  reveal — to  persons  known  to  be  police 
agents.  Under  these  circumstances,  Colson's  merely  participating  in  this 
conversation  was  "the  functional  equivalent  of  interrogation."  Henry,  447 
U.  S.,  at  277  (POWELL,  J.,  concurring).  In  addition,  the  tapes  disclose 
and  the  Supreme  Judicial  Court  of  Maine  found  that  Colson  "frequently 
pressed  Moulton  for  details  of  various  thefts  and  in  so  doing  elicited  much 
incriminating  information  that  the  State  later  used  at  trial."  481  A.  2d,  at 
161.  Thus,  as  in  Henry,  supra,  at  271,  n.  9,  we  need  not  reach  the  situa- 
tion where  the  "listening  post"  cannot  or  does  not  participate  in  active  con- 
versation and  prompt  particular  replies. 

"The  State  argues  that  it  took  steps  to  prevent  Colson  from  inducing 
Moulton  to  make  incriminating  admissions  by  instructing  Colson  to  "be 
himself,"  "act  normal,"  and  "not  interrogate"  Moulton.  Tr.  of  Hearing  on 
Motion  to  Suppress  42,  51,  56.  In  Henry,  we  rejected  this  same  argument 
although  the  likelihood  that  the  accused  would  talk  about  the  pending 
charges  to  a  cellmate  was  less  than  here,  where  the  accused  invited  his  Co- 
defendant  to  discuss  the  upcoming  trial,  and  although  the  instructions  to 
the  agent  were  far  more  explicit.  See  447  U.  S.,  at  268,  271.  More  im- 


178  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

IV 

The  Solicitor  General  argues  that  the  incriminating  state- 
ments obtained  by  the  Maine  police  nevertheless  should 
not  be  suppressed  because  the  police  had  other,  legitimate 
reasons  for  listening  to  Moulton's  conversations  with  Colson, 
namely,  to  investigate  Moulton's  alleged  plan  to  kill  Gary 
Elwell  and  to  insure  Colson's  safety.  In  Massiah,  the  Gov- 
ernment also  contended  that  incriminating  statements  ob- 
tained as  a  result  of  its  deliberate  efforts  should  not  be  ex- 
cluded because  law  enforcement  agents  had  "the  right,  if  not 
indeed  the  duty,  to  continue  their  investigation  of  [Massiah] 
and  his  alleged  criminal  associates  .  .  .  ."  377  U.  S.,  at  206. 
There,  as  here,  the  Government  argued  that  this  circum- 
stance justified  its  surveillance  and  cured  any  improper  acts 
or  purposes.  We  rejected  this  argument,  and  held: 


portantly,  under  the  circumstances  of  this  case,  the  instructions  given  to 
Colson  -were  necessarily  inadequate.  The  Sixth  Amendment  protects  the 
right  of  the  accused  not  to  be  confronted  by  an  agent  of  the  State  regarding 
matters  as  to  which  the  right  to  counsel  has  attached  without  counsel  being 
present.  This  right  was  violated  as  soon  as  the  State's  agent  engaged 
Moulton  in  conversation  about  the  charges  pending  against  him.  Because 
these  charges  were  the  only  subject  to  be  discussed  at  Colson's  December 
26  meeting  with  Moulton,  a  Sixth  Amendment  violation  was  inevitable 
once  Colson  agreed  to  this  meeting  with  Moulton. 

In  any  event,  we  reject  the  State's  suggestion  that  these  instructions 
were  designed  to  protect  Moulton's  constitutional  rights.  The  instructions 
were  obviously  motivated  by  the  police's  concern  that  Colson,  who  had 
never  before  served  as  an  undercover  agent,  might  behave  unnaturally  or 
ask  too  many  questions,  thereby  tipping  Moulton  off  to  the  fact  that  Colson 
was  cooperating  with  the  police.  Thus,  rather  than  explain  to  Colson  that 
actively  questioning  Moulton  might  taint  any  evidence  obtained,  the  police 
simply  told  Colson  to  "be  himself,"  and  to  "act  normal."  Tr.  of  Hearing  on 
Motion  to  Suppress  42,  51,  56.  In  addition,  the  instructions  were  not  lim- 
ited to  questions  concerning  the  pending  charges,  the  only  matters  as  to 
which  active  questioning  might  create  problems.  On  the  contrary,  accord- 
ing to  Chief  Keating,  Colson  was  instructed  that  he  could  engage  Moulton 
in  a  conversation  but  should  not  try  to  draw  him  out  on  "elimination  of  wit- 
nesses or  anything."  Id.,  at  51. 


MAINE  v.  MOULTON  179 

159  Opinion  of  the  Court 

"We  do  not  question  that  in  this  case,  as  in  many  cases,  it 
was  entirely  proper  to  continue  an  investigation  of  the 
suspected  criminal  activities  of  the  defendant  and  his 
alleged  confederates,  even  though  the  defendant  had 
already  been  indicted.  All  that  we  hold  is  that  the 
defendant's  own  incriminating  statements,  obtained  by 
federal  agents  under  the  circumstances  here  disclosed, 
could  not  constitutionally  be  used  by  the  prosecution  as 
evidence  against  him  at  his  trial."  Id.,  at  207  (emphasis 
omitted). 

We  reaffirm  this  holding,  which  states  a  sensible  solution 
to  a  difficult  problem.  The  police  have  an  interest  in  the 
thorough  investigation  of  crimes  for  which  formal  charges 
have  already  been  filed.  They  also  have  an  interest  in  inves- 
tigating new  or  additional  crimes.  Investigations  of  either 
type  of  crime  may  require  surveillance  of  individuals  already 
under  indictment.  Moreover,  law  enforcement  officials  in- 
vestigating an  individual  suspected  of  committing  one  crime 
and  formally  charged  with  having  committed  another  crime 
obviously  seek  to  discover  evidence  useful  at  a  trial  of  either 
crime.15  In  seeking  evidence  pertaining  to  pending  charges, 

16  In  his  brief,  the  Solicitor  General  assumes  that  the  only  claim  made  by 
the  Government  and  answered  by  the  Court  in  Massiah  was  that  the  Gov- 
ernment was  engaged  in  a  continuing  investigation  of  crimes  as  to  which 
charges  were  already  pending.  He  concedes  that  this  was  an  inadequate 
justification  which  "had  the  flavor  of  a  post  hoc  rationalization  of  conduct 
that,  at  its  inception,  in  fact  had  as  a  primary  purpose  the  obtaining  of  evi- 
dence for  use  at  trial  on  the  pending  charges."  Brief  for  United  States  as 
AmicuA  Curiae  23-24.  So  saying,  he  asks  us  to  distinguish  from  that  jus- 
tification the  justification  that  law  enforcement  officials  are  investigating 
"separate"  crimes.  In  Massiah,  however,  the  Government's  assertion 
was  that  it  needed  to  continue  its  investigation  hi  order  to  discover  the 
identities  of  Massiah's  intended  buyer  and  of  others  who  were  importing 
narcotics  as  well  as  to  find  additional  evidence  of  Massiah's  crimes.  Brief 
for  United  States  in  Massiah  v.  United  States,  O.  T.  1963,  No.  199, 
pp.  26-27.  The  Court  in  Massiah  was  thus  faced  with  the  very  same  argu- 
ment made  by  the  Solicitor  General  in  this  case.  Even  were  the  Solicitor 
General's  characterization  of  the  issue  posed  in  Massiah  correct,  however, 


180  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

however,  the  Government's  investigative  powers  are  limited 
by  the  Sixth  Amendment  rights  of  the  accused.     To  allow  the 
admission  of  evidence  obtained  from  the  accused  in  violation 
of  his  Sixth  Amendment  rights  whenever  the  police  assert  an 
alternative,  legitimate  reason  for  their  surveillance  invites 
abuse  by  law  enforcement  personnel  in  the  form  of  fabricated 
investigations  and  risks  the  evisceration  of  the  Sixth  Amend- 
ment right  recognized  in  Massiah.     On  the  other  hand,  to 
exclude  evidence  pertaining  to  charges  as  to  which  the  Sixth 
Amendment  right  to  counsel  had  not  attached  at  the  time 
the  evidence  was  obtained,  simply  because  other  charges 
were  pending  at  that  time,  would  unnecessarily  frustrate  the 
public's  interest  in  the  investigation  of  criminal  activities. 
Consequently,  incriminating  statements  pertaining  to  pend- 
ing charges  are  inadmissible  at  the  trial  of  those  charges, 
notwithstanding  the  fact  that  the  police  were  also  investi- 
gating other  crimes,  if,  in  obtaining  this  evidence,  the  State 
violated  the  Sixth  Amendment  by  knowingly  circumventing 
the  accused's  right  to  the  assistance  of  counsel.16 

Because  we  hold  that  the  Maine  police  knowingly  circum- 
vented Moulton's  right  to  have  counsel  present  at  a  con- 
frontation between  Moulton  and  a  police  agent,  the  fact  that 
the  police  had  additional  reasons  for  recording  Moulton's 
meeting  with  Colson  is  irrelevant.  The  decision  of  the 
Supreme  Judicial  Court  of  Maine  is  affirmed. 

It  is  so  ordered. 


we  would  not  draw  the  distinction  he  asks  us  to  make.  The  likelihood  of 
post  hoc  rationalizing  is  the  same  whether  police  claim  to  be  investigating 
other  examples  of  the  same  crime  or  some  allegedly  "separate"  crime.  We 
take  what  we  feel  is  a  more  realistic  view  of  police  investigations,  and  in- 
stead accept  that  dual  purposes  may  exist  whenever  police  have  more  than 
one  reason  to  investigate  someone. 

16  Incriminating  statements  pertaining  to  other  crimes,  as  to  which  the 
Sixth  Amendment  right  has  not  yet  attached,  are,  of  course,  admissible  at 
a  trial  of  those  offenses. 


MAINE  <v.  MOULTON  181 

159  BURGER,  C.  J.,  dissenting 

CHIEF  JUSTICE  BURGER,  with  whom  JUSTICE  WHITE  and 
JUSTICE  REHNQUIST  join,  and  with  whom  JUSTICE  O'CoN- 
NOR  joins  as  to  Parts  I  and  III,  dissenting. 

Today  the  Court  holds  that  the  Sixth  Amendment  prohibits 
the  use  at  trial  of  postindictment  statements  made  to  a 
government  informant,  even  where  those  statements  were 
recorded  as  part  of  a  good-faith  investigation  of  entirely  sepa- 
rate crimes.  Nothing  whatever  in  the  Constitution  or  our 
prior  opinions  supports  this  bizarre  result,  which  creates  a 
new  "right"  only  for  those  possibly  habitual  offenders  who 
persist  in  criminal  activity  even  while  under  indictment  for 
other  crimes.  I  dissent  and  would  reverse. 


Before  reaching  the  legal  issues,  it  is  important  that  the 
factual  basis  on  which  the  State  acted  here  be  clearly  under- 
stood. Since  the  Court's  opinion  glosses  over  some  of  the 
more  relevant  facts,  I  review  them  here  briefly. 

After  respondent  and  a  codefendant,  Gary  Colson,  were 
indicted  on  several  felony  counts  of  theft  by  receiving  sto- 
len goods,  Colson  telephoned  Belfast  Police  Chief  Robert 
Keating  to  arrange  a  meeting.  At  that  meeting,  on  Novem- 
ber 4,  1982,  Colson  told  Chief  Keating  that  he  had  been 
receiving  "threatening  phone  calls"  and  that  "it  had  gone 
too  far."  In  this  conversation,  Colson  indicated  his  desire  to 
tell  Chief  Keating  about  the  circumstances  giving  rise  to  the 
indictment;  but  Chief  Keating  appropriately  cautioned  him 
to  consult  with  an  attorney  before  saying  more. 

Two  days  later,  Colson  and  respondent  met.  Respondent 
spoke  of  "[g]etting  rid  of  a  couple  of  witnesses,"  including 
Gary  Elwell,  a  key  prosecution  witness  in  the  upcoming  trial 
of  Colson  and  respondent.  Respondent  had  formulated  a 
general  plan  for  the  murder;  Colson's  role  was  to  pick  up  a 
car  to  be  used  in  that  endeavor. 

On  November  9  and  10,  Colson  met  with  Chief  Keating  and 
Detective  Rex  Kelley  of  the  Maine  State  Police  at  the  office 


182  OCTOBER  TERM,  1985 

BURGER,  C.  J.,  dissenting  474  U.  S. 

of  Colson's  attorney.  At  these  meetings,  Colson  revealed  to 
the  police  respondent's  plan  to  kill  Elwell.  Keating  was 
aware  that  several  witnesses  connected  with  the  case  had 
received  threats.  One  witness,  Duke  Ducaster,  had  been 
threatened  personally  by  respondent.  Another  witness, 
Herman  Peasley,  "had  been  told  .  .  .  that  a  cup  of  acid  could 
be  thrown  in  his  face"  if  he  talked  to  the  police.  Colson  then 
consented  to  having  the  police  place  a  recording  device  on  his 
home  telephone.  Keating  testified  that  he  placed  the  device 
on  the  telephone  because  respondent  was  to  call  Colson  back 
when  plans  to  eliminate  Elwell  had  been  finalized  and  be- 
cause Colson  himself  had  been  receiving  anonymous  threat- 
ening telephone  calls. 

Three  telephone  calls  initiated  by  respondent  were  sub- 
sequently recorded.  In  the  first,  on  November  22,  1982, 
respondent,  in  an  apparent  reference  to  the  plan  to  do  away 
with  Elwell,  told  Colson  that  he  had  "come  up  with  a  method" 
and  that  he  wanted  to  get  together  with  Colson  to  talk  about 
it  after  he  had  "work[ed]  out  the  details  on  it."  In  the  sec- 
ond recorded  conversation,  respondent  reviewed  with  Colson 
the  extent  of  the  evidence  against  them  and  made  several 
incriminating  statements.  In  the  last  of  the  recorded 
conversations,  respondent  again  incriminated  himself1  and 


1  Contrary  to  the  Court's  assertion  that  "the  conversation  ended  without 
Moulton  having  said  anything  that  incriminated  him,"  ante,  at  164,  Moul- 
ton  and  Colson  in  fact  rehearsed  a  fabricated  story  that  they  planned  to  use 
at  trial: 

"[Moulton:]  The  parts  I  bought.     I  never  denied  that.     I  did  buy  those. 

"[Colson:]  The  [M]ustang  .  .  .  same  here. 

"[Moulton:]  And  the  [M]ustang,  we  bought  that? 

"[Colson:]  Yeah. 

"[Moulton:]  Ok.  It's  just  a  coincidence  that  ah,  they  happened  to  be 
.  .  .  [h]ot  or  whatever.  .  .  .  You've  got  a  bill  of  sale  for  the  Mustang.  I  got 
a  bill  of  sale  for  parts.  So,  you  know,  what  the  hell?  What  can  they  say?" 
Exh.  S-3,  Tr.  of  Dec.  14  Conversation  4-5. 


MAINE  v.  MOULTON  183 

159  BURGER,  C.  J.,  dissenting 

referred  to  statements  by  witnesses  that  they  had  been 
threatened.  Finally,  respondent  told  Colson  that  he  wanted 
to  meet  to  "review  the  whole  plan." 

Chief  Keating  and  Detective  Kelley  then  arranged  for 
Colson  to  wear  a  body  recorder/transmitter  during  this  meet- 
ing. Both  officers  testified  that  the  recorder  was  intended 
to  protect  Colson's  safety,  since  respondent  might  have 
learned  that  Colson  was  cooperating  with  the  police,  as  well 
as  to  record  any  information  concerning  threats  to  other  wit- 
nesses. Colson  himself  testified  that  his  understanding  of 
the  reasons  for  using  the  recorder  were  "number  1  ...  my 
safety"  and  "number  2  ...  for  any  other  plans  to  do  away 
with  any  of  the  witnesses/'  When  asked  if  there  was  a 
"number  3,"  Colson  testified  "no,"  The  police  instructed 
Colson  "to  act  like  himself,  converse  normally,  and  avoid 
trying  to  draw  information  out  of  Moulton." 

During  the  meeting  with  Colson,  respondent  without  any 
prompting  brought  up  the  possibility  of  killing  Gary  Elwell, 
by  means  of  an  air  gun  with  hollow-tipped  darts  or  explo- 
sives.2 Respondent  also  suggested  developing  false  testi- 


2  After  a  break  in  the  conversation,  respondent  took  a  deep  sigh  and 
said: 

"[Moulton:]  You  know  I  thought  of  a  way  to  eliminate  them.  Remem- 
ber we  were  talking  about  it  before? 

"[Colson:]  Yes,  you  thought  of  a  way? 

"[Moulton:]  Yeah,  but,  ah,  I  don't  think  we  ought  to  go  for  it.  ... 

"[Colson:]  Well,  let  me  [hear  it]. 

"[Moulton:]  Well  you  know  those  air  guns.  .  .  .  They  make  little  darts 
for  those  little  feather  back  darts  that  you  can  put  in  there  you've  seen  em. 
Those  little  darts,  those  little  things  about  that  long.  I  [was]  thinking  just 
hollow  the  tip  out  like  a  needle  and  just  put .  .  .  little  .  .  .  holes  on  the  side, 
and  you  fill  it  with  a  lethal  injection  and  the  shooting  impact  would  shoot  all 
the  stuff  out  of  it  into  .  .  .  the  individuals  body  [and]  poison  [th]em.  There 
would  be  no  noise. 

"[Colson:]  Jesus.  .  .  . 

"[Moulton:]  That's  the  only  thing  that  runs  through  my  brain  .  .  .  you 
have  a  puncture  wound,  probably  take  about  20  or  30  minutes  to  kick  off, 


184  OCTOBER  TERM,  1985 

BURGER,  C.  J,,  dissenting  474  U.  S. 

mony  for  presentation  at  trial.  These  portions  of  the  tran- 
script were  not  admitted  into  evidence  at  trial.  In  addition, 
there  was  direct  discussion  of  the  thefts  for  which  respondent 
had  been  indicted;  these  portions  of  the  transcript  were 
admitted*  The  trial  court  refused  to  suppress  these  por- 
tions since  the  State  had  recorded  the  conversations  "for 
legitimate  purposes  not  related  to  the  gathering  of  evidence 
concerning  the  crime  for  which  [respondent]  had  been  in- 
dicted— L  e.,  in  order  to  gather  information  concerning  the 
anonymous  threats  that  Mr.  Colson  had  been  receiving,  to 
protect  Mr.  Colson  and  to  gather  information  concerning  [re- 
spondent's] plans  to  kill  Gary  Elwell."  The  Maine  Supreme 
Court  in  a  careful  opinion  found  "ample  evidence"  to  support 
this  factual  finding. 

II 

The  Court  today  concludes  that  "[t]o  allow  the  admission  of 
evidence  obtained  from  an  accused  in  violation  of  his  Sixth 
Amendment  rights  whenever  the  police  assert  an  alternative, 
legitimate  reason  for  their  surveillance  .  .  .  risks  the 
evisceration  of  the  Sixth  Amendment  right  recognized  in 
Massiah."  Ante,  at  180.  With  all  deference  I  am  bound  to 
state  that  this  conclusion  turns  the  Sixth  Amendment  on  its 
head  by  first  positing  a  constitutional  violation  and  then  ask- 
ing whether  "alternative,  legitimate  reasons"  for  the  police 
surveillance  are  sufficient  to  justify  that  constitutional  viola- 

yeah,  and  the  other  problem  is  the  poison,  where  .  .  .  are  you  going  to  get 
some  poison?  Small  bottles. 

"[Colson:]  What  was  that  stuff  you  told  me  about  once? 

"[Moulton:]  Calcium  chlorine  .  .  .  ,  yeah,  something  like  that,  just  a 
small  drop  will  make  you  look  like  you  have  a  heart  attack  and  .  .  .  you'd 
never,  never,  find  it  unless  you  were  looking  .  .  .  exactly  for  that  drug.  .  .  . 
Stops  your  heart."  Exh.  S-4,  Tr.  of  Dec.  26  Meeting  18-20. 

Moulton  then  discussed  an  alternative  scheme  for  doing  away  with  wit- 
nesses, based  on  making  explosives  pursuant  to  directions  contained  in  a 
magazine  that  one  of  his  tfbest  friends"  was  sending.  Moulton  described 
him  as  having  belonged  to  "a  motorcycle  gang"  and  also  suggested  omi- 
nously that  he  had  "[pjrobably  snuffed  one  or  two  people."  Id.,  at  21. 


MAINE  v.  MOULTON  185 

159  BURGER,  C.  J.,  dissenting 

tion.  As  I  see  it,  if  "alternative,  legitimate  reasons"  moti- 
vated the  surveillance,  then  no  Sixth  Amendment  violation 
has  occurred.  Indeed,  if  the  police  had  failed  to  take  the 
steps  they  took  here  knowing  that  Colson  was  endangering 
his  life  by  talking  to  them,  in  my  view  they  would  be  subject 
to  censure. 

Analysis  of  this  issue  must  begin  with  Hqffd  v.  United 
States,  385  U.  S.  293  (1966),  not  cited  in  the  Court's  opinion. 
In  Hoffa,  the  Court  held  that  postindictment  statements  ob- 
tained by  a  Government  informant  "relating]  to  the  commis- 
sion of  a  quite  separate  offense,"  id.,  at  308,  were  properly 
admitted  at  a  subsequent  trial  for  the  separate  crime.  Other 
courts  have  also  held  that  Massiah,  viewed  in  light  of  the 
later-decided  Hoffa  case,  does  not  prohibit  the  introduction  of 
incriminating  statements  obtained  in  good  faith  by  the  Gov- 
ernment even  after  an  indictment  at  a  trial  involving  an  of- 
fense different  from  that  covered  by  the  indictment.  See, 
e.  g.,  Mealer  v.  Jones,  741  F.  2d  1451,  1455  (CA2  1984),  cert, 
denied,  471  U.  S.  1006  (1985);  United  States  v.  Lisenby,  716 
F.  2d  1355,  1357-1359  (CA11  1983)  (en  bane). 

Applying  Hoffa  to  the  facts  of  this  case,  it  is  clear  that  the 
statements  obtained  by  Colson  could  have  been  introduced 
against  respondent  at  a  subsequent  trial  for  crimes  apart 
from  those  for  which  respondent  had  already  been  indicted, 
such  as  conspiracy  to  commit  murder  or  to  obstruct  justice. 
The  majority  concedes  as  much:  "Incriminating  statements 
pertaining  to  other  crimes,  as  to  which  the  Sixth  Ajnendment 
right  has  not  yet  attached,  are,  of  course,  admissible  at  a  trial 
of  those  offenses."  Ante,  at  180,  n.  16.  It  follows  from  this 
that  the  State  engaged  in  no  impermissible  conduct  in  its  in- 
vestigation of  respondent  based  on  Colson's  revelations.  By 
recording  conversations  between  respondent  and  Colson, 
Chief  Keating  and  Detective  Kelley  succeeded  in  obtaining 
evidence  that  the  Court's  opinion  concedes  could  have  been 
used  to  convict  respondent  of  further  crimes.  In  fact  this 
record  shows  clearly  that,  based  on  the  recordings,  the  State 


186  OCTOBER  TERM,  1985 

BURGER,  C.  J.,  dissenting  474  U.  S. 

was  able  to  obtain  additional  indictments  against  respondent 
for  burglary,  arson,  and  three  more  thefts.  The  Court's 
opinion  notes  that  respondent  pleaded  guilty  to  several  of 
the  additional  indictments  secured  as  a  result  of  pursuing 
Colson's  leads.  Ante,  at  167. 

Courts  ought  to  applaud  the  kind  of  careful  and  diligent  ef- 
forts of  the  police  shown  by  this  record.     Indeed,  the  Court's 
opinion  does  not  suggest  that  the  police  should  have— or 
could  have— conducted  their  investigation  in  any  other  way. 
Yet,  inexplicably,  the  Court  holds  that  the  highly  probative 
and  reliable  evidence  produced  by  this  wholly  legitimate 
investigation  must  be  excluded  from  respondent's  trial  for 
theft.     The  anomaly  of  this  position,  then,  is  that  the  evi- 
dence at  issue  in  this  case  should  have  been  excluded  from 
respondent's  theft  trial  even  though  the  same  evidence  could 
have  been  introduced  against  respondent  himself  'at  a  trial  for 
separate  crimes.     Far  from  being  "a  sensible  solution  to  a 
difficult  problem,"  ante,  at  179,  as  the  Court  modestly  sug- 
gests, it  is  a  judicial  aberration  conferring  a  windfall  benefit 
to  those  who  are  the  subject  of  criminal  investigations  for  one 
set  of  crimes  while  already  under  indictment  for  another.     I 
can  think  of  no  reason  to  turn  the  Sixth  Amendment  into  a 
"magic  cloak,"  United  States  v.  DeWolf,  696  F.  2d  1,  3  (CA1 
1982),  to  protect  criminals  who  engage  in  multiple  offenses 
that  are  the  subject  of  separate  police  investigations. 

We  have  held  that  no  Sixth  Amendment  violation  occurs 
unless  the  State  "deliberately  elicit[s]"  comments  from  the 
defendant.  See  Massiah  v.  United  States,  377  U.  S.  201, 
206  (1964);  United  States  v.  Henry,  447  U.  S.  264,  270  (1980). 
As  the  foregoing  amply  demonstrates,  however,  a  finding  of 
"deliberate  elicitation"  is  not  the  end  of  the  inquiry.  In 
using  the  phrase  "deliberate  elicitation,"  we  surely  must  have 
intended  to  denote  elicitation  for  the  purpose  of  using  such 
statements  against  the  defendant  in  connection  with  charges 
for  which  the  Sixth  Amendment  right  to  counsel  had  at- 
tached. Here  the  State  indeed  set  out  to  elicit  information 


MAINE  u  MOULTON  187 

159  BURGER,  C.  J.,  dissenting 

from  a  defendant,  but  it  was  an  investigation  with  respect  to 
crimes  other  than  those  for  which  the  defendant  then  stood 
indicted.  As  two  courts  found,  the  State  recorded  the  con- 
versations "  'for  legitimate  purposes  not  related  to  the  gath- 
ering of  evidence  concerning  the  crime  for  which  [respond- 
ent] had  been  indicted.'"  481  A.  2d  155,  160  (Me.  1984) 
(quoting  trial  court). 

No  prior  holding  of  this  Court  recognizes  a  Sixth  Amend- 
ment violation  in  such  circumstances.  As  one  court  has  put 
it,  the  Sixth  Amendment  "speaks  only  to  the  situation  where 
in  the  absence  of  retained  counsel,  statements  are  deliber- 
ately elicited  from  a  defendant  in  connection  with  a  crime  for 
which  he  has  already  been  indicted."  United  States  v. 
Hinton,  543  F.  2d  1002,  1015  (CA2),  cert,  denied  sub  nom. 
Carter  v.  United  States,  429  U.  S.  980  (1976).3  Thus,  in 
United  States  v.  Henry,  supra,  at  275,  n.  14,  we  quoted  Dis- 
ciplinary Rule  7-104(A)(l)  of  the  American  Bar  Association's 
Code  of  Professional  Responsibility,  which  provides  that 
"'a  lawyer  shall  not  .  .  .  [c]ommunicate  or  cause  another 
to  communicate  on  the  subject  of  the  representation  with  a 

8  The  Court's  opinion  seems  to  read  Massiah  as  if  it  definitively  ad- 
dresses situations  where  the  police  are  investigating  a  separate  crime. 
This  reading  is  belied  by  the  Massiah  Court's  statement  of  its  own  holding: 
"We  do  not  question  that  in  this  case,  as  in  many  cases,  it  was  entirely 
proper  to  continue  an  investigation  of  the  suspected  criminal  activities  of 
the  defendant  and  his  alleged  confederates,  even  though  the  defendant  had 
already  been  indicted.  All  that  we  hold  is  that  the  defendant's  own  incrim- 
inating statements,  obtained  by  federal  agents  under  the  circumstances 
here  disclosed,  could  not  constitutionally  be  used  by  the  prosecution  as  evi- 
dence against  him  at  his  trial."  Massiah  v.  United  States,  377  U.  S.  201, 
207  (1964)  (first  emphasis  added). 

The  reference  to  the  "circumstances  here  disclosed"  must  be  to  the  fact 
that  the  Government,  far  from  pursuing  a  good-faith  investigation  of  dif- 
ferent crimes,  had  "instructed  the  informant  to  engage  [Massiah]  in  con- 
versation relating  to  the  crimes  [for  which  he  had  already  been  indicted]." 
United  States  v.  Henry,  447  U.  S.  264,  276  (1980)  (POWELL,  J.,  concur- 
ring); Brief  for  Petitioner  in  Massiah  v.  United  States,  O.  T.  1963,  No.  199, 
p.  4. 


188  OCTOBER  TERM,  1985 

BURGER,  C.  J.,  dissenting  474  U.  S. 

party  he  knows  to  be  represented  by  a  lawyer  in  that  mat- 
ter * "  (emphasis  added).  Our  reference  in  Henry  to  this  rule 
illustrates  that  we  have  framed  the  Sixth  Amendment  issue 
in  terms  of  whether  the  State  deliberately  circumvented 
counsel  with  regard  to  the  "subject  of  representation."  But 
where,  as  here,  the  incriminating  statements  are  gathered 
for  "an  alternative,  legitimate  reason,"  ante,  at  180,  wholly 
apart  from  the  pending  charges,  no  such  deliberate  circum- 
vention exists. 

The  Court's  opinion  seems  to  rest  on  the  notion  that  the 
evidence  here  is  excludable  because  "the  State  'must  have 
known'  that  its  agent  was  likely  to  obtain  incriminating 
statements  from  the  accused,"  ante,  at  176,  n.  12,  with  re- 
spect to  the  crimes  for  which  he  was  already  indicted.  But 
the  inquiry  mandated  by  our  holdings  is  whether  the  State 
recorded  the  statements  not  merely  in  spite  of,  but  because 
of  that  consequence.  Cf.  Wayte  v.  United  States,  470  U.  S. 
598  (1985).  If  the  State  is  not  seeking  to  elicit  information 
with  respect  to  the  crime  for  which  the  defendant  is  already 
indicted,  it  cannot  rationally  be  said  that  the  State  has 
"planned  an  impermissible  interference  with  the  right  to  the 
assistance  of  counsel."  Henry,  supra,  at  275. 

This  case  is  a  particularly  inappropriate  one  for  invoking 
the  right  to  counsel.  The  right  to  counsel  recognized  in 
Massiah  was  designed  to  preserve  the  integrity  of  the  trial. 
See  377  U.  S.,  at  204.  Here  respondent  was  under  investi- 
gation because  of  his  plans  to  obstruct  justice  by  killing  an 
essential  witness.  There  is  no  right  to  consult  an  attorney 
for  advice  on  committing  crimes.  See  United  States  v.  Mer- 
ritts,  527  F.  2d  713,  716  (CA7  1975).  Indeed,  any  attorney 
who  undertook  to  offer  such  advice  would  undoubtedly  be 
subject  to  sanction.  Disciplinary  Rule  7-102(A)(7)  of  the 
Code  of  Professional  Responsibility,  for  example,  states  "a 
lawyer  shall  not  .  .  .  [c]ounsel  or  assist  his  client  in  conduct 
that  the  lawyer  knows  to  be  illegal  or  fraudulent."  Thus 
there  is  no  warrant  for  vindicating  respondent's  right  to  con- 


MAINE  u  MOULTON  189 

159  BURGER,  C.  J.,  dissenting 

suit  counsel.  An  observation  of  this  Court  in  connection 
with  the  attorney-client  evidentiary  privilege  bears  mention 
here:  "The  privilege  takes  flight  if  the  relation  is  abused.  A 
client  who  consults  an  attorney  for  advice  that  will  serve  him 
in  the  commission  of  a  fraud  will  have  no  help  from  the  law. 
He  must  let  the  truth  be  told."  Clark  v.  United  States,  289 
U.  S.  1,  15  (1933).  I  would  let  the  truth  be  told  in  this  case 
rather  than  exclude  evidence  that  was  the  product  of  this 
police  investigation  into  activities  designed  to  thwart  the 
judicial  process. 

Even  though  the  Massiah  rule  is  inapplicable  to  situations 
where  the  government  is  gathering  information  related  to  a 
separate  crime,  police  misconduct  need  not  be  countenanced. 
Accordingly,  evidence  obtained  through  a  separate  crimes  in- 
vestigation should  be  admitted  only  "so  long  as  investigating 
officers  show  no  bad  faith  and  do  not  institute  the  investiga- 
tion of  the  separate  offense  as  a  pretext  for  avoiding  the  dic- 
tates of  Massiah."  United  States  v.  Darwin,  757  F.  2d  1193, 
1199  (CA11  1985).  Here  the  careful  actions  of  Chief  Keating 
and  Detective  Kelley  steered  well  clear  of  these  prohibitions. 

Until  today,  the  clearly  prevailing  view  in  the  federal  and 
state  courts  was  that  Massiah  and  its  successors  did  not  pro- 
tect a  defendant  from  the  introduction  of  postindictment 
statements  deliberately  elicited  when  the  police  undertook  an 
investigation  of  separate  crimes.4  As  two  leading  commen- 
tators have  observed: 


4  See  United  States  v.  DeWolf,  696  F.  2d  1,  3  (CA1  1982);  Grieco  v. 
Meachum,  533  F.  2d  713,  717-718  (CA1  1976),  cert,  denied  sub  nom. 
Cassesso  v.  Meachum,  429  U.  S.  858  (1976);  United  States  v.  Hinton,  543 
F.  2d  1002,  1015  (CA2),  cert,  denied  sub  nom.  Carter  v.  United  States,  429 
U.  S.  980  (1976);  United  States  v.  Merritts,  527  F.  2d  713,  716  (CA7  1975); 
United  States  v.  Taxe,  540  F.  2d  961,  968-969  (CA9  1976),  cert,  denied,  429 
U.  S.  1040  (1977);  United  States  v.  Darwin,  757  F.  2d  1193,  1200  (CA11 
1985);  Crawford  v.  State,  377  So.  2d  145,  156  (Ala.  Grim.  App.),  aff 'd,  377 
So.  2d  159  (Ala.  1979),  vacated  and  remanded,  448  U.  S.  904  (1980); 
Deskins  v.  Commonwealth,  512  S.  W.  2d  520,  526  (Ky.  1974),  cert,  denied, 
419  U.  S.  1122  (1975);  Hall  v.  State,  47  Md.  App.  590,  596,  425  A.  2d  227, 


190  OCTOBER  TERM,  1985 

BURGER,  C.  J.,  dissenting  474  U.  S. 

"Even  before  [Brewer  v.]  Williams,  [430  U.  S.  387 
(1977),]  it  was  generally  accepted  that  the  right  to  coun- 
sel did  not  bar  contact  with  the  defendant  concerning 
other  offenses,  particularly  if  the  offenses  were  clearly 
unrelated  and  it  did  not  appear  the  charge  was  simply  a 
pretext  to  gain  custody  in  order  to  facilitate  the  investi- 
gation. The  more  recent  cases  recognize  that  \_Massiah 
and  its  progeny  do]  not  confer  upon  charged  defendants 
immunity  from  investigation  concerning  other  crimes. 
This  is  especially  true  when  the  offense  under  inves- 
tigation is  a  new  or  ongoing  one,  such  as  illegal  efforts 
to  thwart  the  forthcoming  prosecution."  1  W.  LaFave 
&  J.  Israel,  Criminal  Procedure  §6.4,  p.  470  (1984) 
(emphasis  added)  (footnotes  omitted). 

Rather  than  expand  Massiah  beyond  boundaries  currently 
recognized,  I  would  take  note  of  the  observation  that 
"Massiah  certainly  is  the  decision  in  which  Sixth  Amendment 
protections  have  been  extended  to  their  outermost  point." 
Henry,  447  U.  S.,  at  282  (BLACKMUN,  J.,  dissenting).  I 
would  not  expand  them  more  and  well  beyond  the  limits  of 
precedent  and  logic. 

Ill 

Even  if  I  were  prepared  to  join  the  Court  in  this  enlarge- 
ment of  the  protections  of  the  Sixth  Amendment,  I  would 
have  serious  doubts  about  also  extending  the  reach  of  the 
exclusionary  rule  to  cover  this  case.  "Cases  involving  Sixth 
Amendment  deprivations  are  subject  to  the  general  rule  that 

231  (1981),  aff 'd,  292  Md.  683,  441  A.  2d  708  (1982);  People  v.  Mealer,  57 
N.  Y.  2d  214,  218,  441  N.  E.  2d  1080,  1082  (1982);  People  v.  Costello,  101 
App.  Div.  2d  244,  247,  476  N.  Y.  S.  2d  210,  212  (1984);  Hummel  v.  Com- 
monwealth, 219  Va.  252,  257,  247  S.  E.  2d  385,  388  (1978),  cert,  denied, 
440  U.  S.  935  (1979).  Cf.  United  States  v.  Moschiano,  695  F.  2d  236,  243 
(CA7  1982),  cert,  denied,  464  U.  S.  831  (1983);  United  States  v.  Soffit,  89 
F.  R.  D.  523  (Del.  1981).  But  see  Mealer  v.  Jones,  741  F.  2d  1451,  1455 
(CA2  1984),  cert,  denied,  471  U.  S.  1006  (1985);  State  v.  Ortiz,  131  Ariz. 
195,  202,  639  P.  2d  1020,  1028  (1981),  cert,  denied,  456  U.  S.  984  (1982). 


MAINE  v.  MOULTON  191 

159  BURGER,  C.  J.,  dissenting 

remedies  should  be  tailored  to  the  injury  suffered  from  the 
constitutional  violation  and  should  not  unnecessarily  infringe 
on  competing  interests."  United  States  v.  Morrison,  449 
U.  S.  361,  364  (1981).  Application  of  the  exclusionary  rule 
here  makes  little  sense,  as  demonstrated  by  "weighing  the 
costs  and  benefits  of  preventing  the  use  in  the  prosecution's 
case  in  chief  of  inherently  trustworthy  tangible  evidence." 
United  States  v.  Leon,  468  U.  S.  897,  907  (1984). 

With  respect  to  the  costs,  applying  the  rule  to  cases  where 
the  State  deliberately  elicits  statements  from  a  defendant  in 
the  course  of  investigating  a  separate  crime  excludes  evi- 
dence that  is  "typically  reliable  and  often  the  most  probative 
information  bearing  on  the  guilt  or  innocence  of  the  defend- 
ant." Stone  v.  Powell,  428  U.  S.  465,  490  (1976).  More- 
over, because  of  the  trustworthy  nature  of  the  evidence,  its 
admission  will  not  threaten  "the  fairness  of  a  trial  or  ...  the 
integrity  of  the  factfinding  process."  Brewer  v.  Williams, 
430  U.  S.  387,  414  (1977)  (POWELL,  J.,  concurring).  Hence, 
application  of  the  rule  to  cases  like  this  one  "deflects  the 
truthfinding  process,"  "often  frees  the  guilty,"  and  may  well 
"generat[e]  disrespect  for  the  law  and  [the]  administration  of 
justice."  Stone  v.  Powell,  supra,  at  490-491. 

Against  these  costs,  applying  the  rule  here  appears  to  cre- 
ate precious  little  in  the  way  of  offsetting  "benefits."  Like 
searches  in  violation  of  the  Fourth  Amendment,  the  "wrong" 
that  the  Court  condemns  was  "fully  accomplished"  by  the 
elicitation  of  comments  from  the  defendant  and  "the  exclu- 
sionary rule  is  neither  intended  nor  able  to  cure  the  invasion 
of  the  defendant's  rights  which  he  has  already  suffered." 
Leon,  supra,  at  906  (internal  quotation  omitted). 

The  application  of  the  exclusionary  rule  here  must  there- 
fore be  premised  on  deterrence  of  certain  types  of  conduct  by 
the  police.  We  have  explained,  however,  that  "[t]he  deter- 
rent purpose  of  the  exclusionary  rule  necessarily  assumes 
that  the  police  have  engaged  in  willful,  or  at  the  very  least 
negligent,  conduct  which  has  deprived  the  defendant  of  some 


192  OCTOBER  TERM,  1985 

BURGER,  C.  J.,  dissenting  474  U.  S. 

right."  United  States  v.  Peltier,  422  U.  S.  531,  539  (1975). 
Here  the  trial  court  found  that  the  State  obtained  state- 
ments from  respondent  "for  legitimate  purposes  not  related 
to  the  gathering  of  evidence  concerning  the  crime  for  which 
[respondent]  had  been  indicted."  Since  the  State  was  not 
trying  to  build  its  theft  case  against  respondent  in  obtaining 
the  evidence,  excluding  the  evidence  from  the  theft  trial  will 
not  affect  police  behavior  at  all.  The  exclusion  of  evidence 
"cannot  be  expected,  and  should  not  be  applied,  to  deter 
objectively  reasonable  law  enforcement  activity."  Leon, 
supra,  at  919.  Indeed,  as  noted  above,  it  is  impossible  to 
identify  any  police  "misconduct"  to  deter  in  this  case.  In 
fact,  if  anything,  actions  by  the  police  of  the  type  at  issue 
here  should  be  encouraged.  The  diligent  investigation  of 
the  police  in  this  case  may  have  saved  the  lives  of  several 
potential  witnesses  and  certainly  led  to  the  prosecution  and 
conviction  of  respondent  for  additional  serious  crimes. 

It  seems,  then,  that  the  Sixth  Amendment  claims  at  issue 
here  "closely  parallel  claims  under  the  Fourth  Amendment," 
Brewer,  supra,  at  414  (POWELL,  J.,  concurring),  where  we 
have  found  the  exclusionary  rule  to  be  inapplicable  by  weigh- 
ing the  costs  and  benefits  of  its  applications.      See,  e.  g., 
United  States  v.  Leon,  supra  (exclusionary  rule  inapplicable 
where  officers  rely  in  good  faith  on  defective  search  warrant 
issued  by  neutral  magistrate);  Stone  v.  Powell,  supra  (where 
full  opportunity  to  litigate  Fourth  Amendment  issues  has 
been  afforded,  such  issues  may  not  be  raised  in  a  state  habeas 
petition).     If  anything,  the  argument  for  admission  of  the 
evidence  here  is  even  stronger  because  "[t]his  is  not  a  case 
where  .  .  .  the  constable  .  .  .  blundered.'"     United  States  v. 
Henry,  supra,  at  274-275  (quoting  People  v.  DeFore,  242 
N.  Y.  13,  21,  150  N.  E.  585,  587  (1926)  (Cardozo,  J.)). 

Because  the  Court  today  significantly  and  unjustifiably 
departs  from  our  prior  holdings,  I  respectfully  dissent. 


CLEAVINGER  u  SAXNER  193 

Syllabus 

CLEAVINGER  ET  AL.  v.  SAXNER  ET  AL. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  SEVENTH  CIRCUIT 

No.  84-732.     Argued  October  16,  1985— Decided  December  10,  1985 

Respondent  federal  prison  inmates  were  found  guilty  by  the  prison's  Disci- 
pline Committee,  composed  of  petitioner  prison  officials,  of  encouraging 
other  inmates  to  engage  in  a  work  stoppage  and  of  other  charges,  and 
were  ordered  to  be  placed  in  administrative  detention  and  to  forfeit  a 
specified  number  of  days  of  "good  time."  On  appeals  to  the  Warden  and 
the  Regional  Director  of  the  Bureau  of  Prisons,  respondents  were  or- 
dered released  from  administrative  detention  and  all  material  relevant 
to  the  incident  in  question  was  ordered  expunged  from  their  records. 
They  were  later  paroled  and  released.  But  in  the  meantime,  they 
brought  suit  in  Federal  District  Court  against  petitioners,  alleging  a 
violation  of  various  federal  constitutional  rights  and  seeking  declaratory 
and  injunctive  relief  and  damages.  After  initially  dismissing  the  com- 
plaint on  the  ground  that  petitioners  were  entitled  to  absolute  immunity 
from  liability,  the  District  Court,  on  reconsideration,  reinstated  the  suit. 
The  case  was  tried  to  a  jury,  which  found  that  petitioners  had  violated 
respondents'  Fifth  Amendment  due  process  rights,  and  awarded  dam- 
ages. The  Court  of  Appeals  affirmed,  rejecting  petitioners'  claim  for 
absolute  immunity. 

Held:  Petitioners  are  entitled  to  only  qualified  immunity.     Pp.  199-208. 

727  F.  2d  669,  affirmed. 

BLACKMUN,  J.,  delivered  the  opinion  of  the  Court,  in  which  BRENNAN, 
MARSHALL,  POWELL,  STEVENS,  and  O'CONNOR,  JJ.,  joined.  REHN- 
QUIST,  J.,  filed  a  dissenting  opinion,  in  which  BURGER,  C.  J.,  and 
WHITE,  J.,  joined,  post,  p.  208. 

Deputy  Solicitor  General  Geller  argued  the  cause  for  peti- 
tioners. With  him  on  the  brief  were  Solicitor  General  Lee, 
Assistant  Attorney  General  Trott,  Samuel  A.  Alitof  Jr.,  and 
Gloria  C.  Phares. 

G.  Flint  Taylor  argued  the  cause  for  respondents.  With 
him  on  the  brief  was  Charles  W.  Hoffman.* 

*John  K.  Van  de  Ramp,  Attorney  General  of  California,  Steve  White, 
Chief  Assistant  Attorney  General,  Arnold  O.  Overoye,  Assistant  Attorney 


194  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

JUSTICE  BLACKMUN  delivered  the  opinion  of  the  Court. 

This  case  presents  the  issue  whether  members  of  a  federal 
prison's  Institution  Discipline  Committee,  -who  hear  cases  in 
-which  inmates  are  charged  with  rules  infractions,  are  entitled 
to  absolute,  as  distinguished  from  qualified,  immunity  from 
personal  damages  liability  for  actions  violative  of  the  United 
States  Constitution. 

I 

Respondents  David  Saxner  and  Alfred  Cain,  Jr.,  in  Janu- 
ary 1975  were  inmates  at  the  Federal  Correctional  Institu- 
tion at  Terre  Haute,  Ind.     They  were  serving  4-  and  5-year 
sentences,  respectively,  and  each  was  within  18  months  of  a 
possible  release  date.     Each  was  soon  to  appear  before  the 
parole  board.     The  prison-conduct  record  of  each  was  good. 
On  January  6,   1975,  William  Lowe,   a  Negro  inmate  at 
Terre  Haute  died  in  the  prison  hospital.     He  was  the  first  of 
four  Negro  inmates  to  die  there  within  the  ensuing  7-month 
period.    A  work  stoppage  to  protest  Lowe's  death  took  place 
at  the  prison  on  January  7  and  8.      Respondent  Saxner,  a 
white  inmate  who  had  served  as  a  "jailhouse  lawyer,"  and  re- 
spondent Cain,  a  Negro  inmate  who  was  the  librarian  for  the 
African  and  New  World  Cultural  Society,  assert  that  neither 
of  them  participated  in  the  stoppage.      See  Brief  for  Re- 
spondents 1.     Each,  however,  was  active  in  gathering  in- 
formation about  Lowe's  death  and  about  conditions  at  the 
prison  hospital,  and  in  passing  that  information  to  the  press, 
Members  of  Congress,  prison  officials,  and  Saxner's  attor- 


General,  William  George  Prahl,  Supervising  Deputy  Attorney  General, 
Susan  J.  Orton,  Deputy  Attorney  General,  Charles  A.  Graddick,  Attorney 
General  of  Alabama,  Michael  A.  Lilly,  Attorney  General  of  Hawaii,  and 
A.  G.  McClintock,  Attorney  General  of  Wyoming,  filed  a  brief  for  the 
State  of  California  et  al.  as  amid  curiae  urging  reversal. 

Stephen  M.  Latimer  filed  a  brief  for  Prisoners'  Legal  Services  of  New 
York,  Inc. ,  et  al.  as  amid  curiae  urging  affirmance. 


CLEAVINGER  v.  SAXNER  195 

193  Opinion  of  the  Court 

ney.1  On  February  14,  respondents  were  cited  in  separate 
Incident  Reports  for  encouraging  other  inmates  to  engage  in 
work  stoppage.  App.  50,  52.  Each  was  immediately  placed 
in  administrative  segregation,  that  is,  removed  from  the  gen- 
eral inmate  population,  and  assigned  to  a  separate  cell  in  an 
unused  part  of  the  hospital.  See  28  CFR  §541.20(b)  (1985). 

On  the  following  day,  each  respondent  was  given  a  copy 
of  the  Bureau  of  Prisons  Policy  Statement  7400. 5c  (subject: 
Inmate  Discipline)  (Oct.  4,  1974).  See  App.  25-49.  Saxner 
signed  a  written  notice  which  explained  his  rights  at  a  hear- 
ing to  be  held  before  an  Institution  Discipline  Committee. 
Among  these  were  the  right  to  have  a  written  copy  of  the 
charge;  the  right  to  have  a  member  of  the  prison  staff  repre- 
sent him;  the  rights,  except  where  institutional  safety  would 
be  jeopardized,  to  be  present  at  the  hearing,  to  call  wit- 
nesses, and  to  submit  documentary  evidence;  and  the  right  to 
receive  a  written  explanation  of  the  committee's  decision. 
Id.,  at  54. 2  Although  the  record  does  not  so  disclose,  we 
assume  that  respondent  Cain  received  a  similar  notice  at  that 
time. 

Respondents  were  brought  before  the  Institution  Disci- 
pline Committee  on  February  21.  The  committee  was  com- 
posed of  petitioners  Theodore  Cleavinger,  Associate  War- 
den, as  chairman;  Marvin  Marcadis,  correctional  supervisor; 
and  Tom  P.  Lockett,  chief  of  case  management.8 


1  This  activity  apparently  resulted  in  a  visit  to  the  Terre  Haute  facility 
by  an  Assistant  Surgeon  General  and  in  a  lawsuit  concerning  the  last  of  the 
four  hospital  deaths.      See  Green  v.  Carlson,  581  F.  2d  669  (CAT  1978), 
aff' d,  446  U.  S.  14  (1980). 

2  The  Policy  Statement  did  not  provide  for  cross-examination,  represen- 
tation by  a  lawyer,  verbatim  record  of  the  proceeding,  or  nonagency  or  ju- 
dicial review.     Neither  did  it  specify  the  standard  of  proof  or  the  standard 
of  punishment. 

8  The  Solicitor  General  advises  us,  see  Brief  for  Petitioners  3,  n.  4,  that 
a  committee  of  this  kind  at  the  Terre  Haute  facility  usually  was  composed 
of  three  members.  By  regulation,  the  chairman  and  one  other  member 
must  be  of  department-head  level,  or  higher.  See  28  CFR  §541.16(b) 


196  OCTOBER  TERM,  1986 

Opinion  of  the  Court  474  U.  S. 

Respondent  Saxner  was  accompanied  at  the  hearing  by 
Ralph  Smith,  staff  counselor,  whom  Saxner  had  selected  to 
represent  him.      After  reading  the  charge  and  reviewing 
Saxner's  rights,  the  committee  introduced  Saxner's  Incident 
Report  and  three  documents  found  in  his  cell.     These  were, 
respectively,  a  "press  release"  Saxner  had  sent  to  50  newspa- 
pers; a  four-page  document  which  detailed  interviews  with 
inmates  about  their  medical  treatment  at  the  prison  hospital; 
and  a  letter  from  Saxner  to  an  American  Civil  Liberties 
Union  lawyer,    Saunders,    which   enclosed   the   other  two 
documents  and  which  discussed  medical  conditions,  possible 
litigation  on  behalf  of  the  Lowe  family  and  other  inmates, 
communications  with  the  press,  and  the  obtaining  of  local 
counsel.     The  press  release,  among  other  things,  advocated 
administrative  approval  of  a  prisoners'  union  and  amnesty  for 
those  who  had  participated  in  the  work  stoppage.     Id. ,  at  81. 
Neither  the  investigating  officer  nor  the  charging  officer  nor 
any  guard  was  called  as  a  witness.     Saxner,  however,  testi- 
fied and  introduced  affidavits  of  several  inmates.      His  re- 
quest that  he  be  permitted  to  call  inmates  to  confirm  that  he 
did  not  encourage  any  work  stoppage  was  denied  on  the 
ground  that  such  testimony  would  be  cumulative.     While  ad- 
mitting that  he  had  written  the  press  release  and  had  mailed 
it  to  persons  outside  the  prison  without  authorization,  Saxner 
asserted  his  innocence  on  the  specific  charge  referred.     Id. , 
at  60,  71. 

The  committee  found  respondent  Saxner  guilty  of  encour- 
aging a  work  stoppage.  Also,  although  not  specifically  so 
charged,  he  was  found  guilty  of  unauthorized  use  of  the  mail 
and  of  possession  of  contraband,  that  is,  material  advocating 
an  illegal  prisoners'  union.  The  committee  ordered  that 


(1985).  The  reporting  officer,  investigating  officer,  and  any  person  who 
was  a  witness  to  the  incident  or  played  a  significant  part  in  having  the 
charge  referred,  may  not  be  a  member  of  the  committee  except  "where 
virtually  every  staff  member  in  the  institution  witnessed  the  incident  in 
whole  or  in  part."  Ibid. 


CLEAVINGER  v.  SAXNER  197 

193  Opinion  of  the  Court 

Saxner  be  placed  in  administrative  detention  and  forfeit  84 
days  of  "good  time."  His  transfer  to  another  institution  was 
recommended.  Id.,  at  57. 

Respondent  Cain's  hearing  took  place  the  same  day  before 
the  same  committee  and  immediately  prior  to  Saxner's  hear- 
ing. Id.,  at  64.  He  was  accompanied  by  J.  R.  Alvarado, 
a  staff  representative.  He  was  advised  of  his  rights.  His 
Incident  Report  was  produced.  Two  documents  found  in 
his  cell  (Saxner's  letter  to  Saunders  and  a  manuscript  con- 
cerning "Ideals  and  Proposals  of  the  Prisoner  Labor  Union") 
were  introduced.  Cain  testified  and  denied  that  he  had  en- 
couraged inmates  not  to  work.  He  requested  the  right  to 
cross-examine  his  accusers,  but  no  other  witness  was  called. 

At  the  conclusion  of  Cain's  hearing,  the  committee  found 
him  guilty  of  encouraging  a  work  stoppage  and,  although  not 
specifically  so  charged,  of  possessing  contraband,  that  is, 
"inflammatory  material  .  .  .  supporting  disruptive  conduct  in 
the  institution."  Id.,  at  65.  The  committee  ordered  that 
Cain  be  placed  in  administrative  detention  and  forfeit  96  days 
of  "good  time."  His  transfer  to  another  institution  also  was 
recommended.  Ibid. 

Respondents  appealed  to  the  Warden  of  the  institution. 
The  Warden  ordered  their  release  from  administrative  deten- 
tion, restored  the  good  time,  and  directed  that  each  respond- 
ent's record  carry  a  notation  that  "the  incident  not  reflect 
unfavorably"  upon  consideration  for  parole.  Id.,  at  74,  77. 
The  Warden  refused,  however,  to  expunge  respondents' 
records.  Ibid.  Saxner  and  Cain  were  released  into  the  gen- 
eral prison  population  on  March  21. 

Respondents  next  appealed  to  the  Regional  Director  of  the 
Bureau  of  Prisons.  The  Regional  Director  ruled  that  the 
disciplinary  report,  the  action  by  the  committee  on  the  inci- 
dent, and  material  relevant  thereto  were  to  be  expunged 
from  each  respondent's  record.  Id.,  at  79,  80.  Thus,  in  the 
end,  after  these  appeals,  respondents  obtained  all  the  ad- 
ministrative relief  they  sought.  But  in  the  meantime,  for  a 


198  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

definite  interval,  each  had  been  condemned  (improperly  as  it 
turned  out)  to  "administrative  detention." 

Respondent  Saxner  was  paroled  and  released  in  April 
1975.  Respondent  Cain  was  granted  parole  in  June  and 
released  in  December. 

Meanwhile,  in  March  1975,  respondents  brought  suit  in 
the  United  States  District  Court  for  the  Southern  District 
of  Indiana  against  petitioners,  the  Terre  Haute  Warden, 
and  the  institution's  administrative  supervisor.  Their  third 
amended  complaint  alleged  that  the  defendants  had  violated 
their  rights  under  the  First,  Fourth,  Fifth,  Sixth,  and  Eighth 
Amendments.  Id.,  at  12.  See  Bivens  v.  Six  Unknown 
Fed.  Narcotics  Agents,  403  U.  S.  388  (1971).  Respondents 
sought  declaratory  and  injunctive  relief  and  compensatory 
damages.  App.  22. 

The  District  Court  granted  petitioners'  motion  to  dismiss 
the  complaint  on  the  ground  that  their  functioning  as  hearing 
officers  entitled  them  to  absolute  immunity.  Nearly  two 
years  later,  however,  in  April  1981,  the  District  Court,  on 
reconsideration,  reinstated  the  suit  in  light  of  its  controlling 
court's  decision  in  Mary  v.  Ramsden,  635  F.  2d  590  (CA7 
1980),  where  the  Court  of  Appeals  held  that  members  of  a 
disciplinary  committee  at  a  Wisconsin  juvenile  facility  were 
entitled  to  only  qualified  immunity.  App.  23. 

The  case  then  was  tried  to  a  jury.  In  response  to  special 
interrogatories,  the  jury  found  that  petitioners  had  violated 
respondents'  Fifth  Amendment  due  process  rights.4  The 
jury  awarded  each  respondent  $1,500  compensatory  damages 
against  each  petitioner,  or  a  total  of  $4,500;  each  petitioner 
was  thus  subjected  to  liability  totaling  $3,000.  Id.,  at  9. 

Petitioners'  subsequent  motion  for  judgment  notwithstand- 
ing the  verdict  was  denied.  They  appealed,  contending, 


4  Judgment  was  entered  in  favor  of  the  defendant  Warden  and  the 
defendant  administrative  supervisor.  Respondents  did  not  contest  this 
aspect  of  the  judgment  on  appeal. 


CLEAVINGER  v.  SAXNER  199 

193  Opinion  of  the  Court 

among  other  things,  that,  as  members  of  the  discipline 
committee,  they  were  entitled  to  absolute  immunity.5 

The  United  States  Court  of  Appeals  for  the  Seventh  Cir- 
cuit, by  a  divided  vote,  affirmed.  Saxner  v.  Benson,  727  F. 
2d  669  (1984).  It  held  that  petitioners'  claim  for  absolute  im- 
munity was  foreclosed  by  Seventh  Circuit  precedent  denying 
such  immunity  to  state  correctional  officers  serving  in  a  simi- 
lar capacity.  Id.,  at  670.  See  Redding  v.  Fairman,  717  F. 
2d  1105,  1117  (1983),  cert,  denied,  465  U.  S.  1025  (1984); 
Chavis  v.  Rowe,  643  F.  2d  1281,  1288,  cert,  denied  sub  nom. 
Boles  v.  Chavis,  454  U.  S.  907  (1981);  Mary  v.  Ramsden,  635 
F.  2d,  at  600.  Petitioners'  request  for  rehearing  en  bane  was 
denied  by  a  vote  of  5  to  4.  App.  to  Pet.  for  Cert.  36a. 

Because  of  the  importance  of  the  issue,  and  because  the 
Seventh  Circuit  rulings,  although  consistent  with  Jihaad  v. 
O'Brien,  645  F.  2d  556,  561  (CA6  1981),  were  claimed  to  be  in 
some  conflict  with  the  en  bane  decision  of  the  Fourth  Circuit 
in  Ward  v.  Johnson,  690  F.  2d  1098  (1982),  we  granted  certio- 
rari.  469  U.  S.  1206  (1985). 

II 

A.  This  Court  has  observed:  "Few  doctrines  were  more 
solidly  established  at  common  law  than  the  immunity  of 
judges  from  liability  for  damages  for  acts  committed  within 
their  judicial  jurisdiction."  Pierson  v.  Ray,  386  U.  S.  547, 
553-554  (1967).  The  Court  specifically  has  pronounced  and 
followed  this  doctrine  of  the  common  law  for  more  than  a  cen- 
tury. In  Bradley  v.  Fisher,  13  Wall.  335  (1872),  it  ruled  that 
a  federal  judge  may  not  be  held  accountable  in  damages  for  a 
judicial  act  taken  within  his  court's  jurisdiction.  Such  immu- 
nity applies  "however  erroneous  the  act  may  have  been,  and 
however  injurious  in  its  consequences  it  may  have  proved  to 

5  The  sole  question  raised  by  petitioners  in  this  Court  is  whether,  as 
committee  members,  they  were  entitled  to  absolute  immunity.  Petition- 
ers state  that  they  have  not  challenged— although  they  do  not  concede — 
the  ruling  that  they  violated  "clearly  established  constitutional  rights"  of 
respondents.  See  Brief  for  Petitioners  7,  n.  8. 


200  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

the  plaintiff."     Id.,  at  347.     "Nor  can  this  exemption  of  the 
judges  from  civil  liability  be  affected  by  the  motives  with 
which  their  judicial  acts  are  performed."     Ibid.     In  Pierson 
v.    Ray,    supra,    the    Court   held   that    absolute    immunity 
shielded  a  municipal  judge  who  was  sued  for  damages  tinder 
42  U.  S.  C.  §  1983  by  clergymen  who  alleged  that  he  had  con- 
victed them  unconstitutionally  for  a  peaceful  protest  against 
racial  segregation.     The  Court  stressed  that  such  immunity 
was  essential  to  protect  the  integrity  of  the  judicial  process. 
386  U.  S.,  at  554.     And  in  Stump  v.  Sparkman,  435  U.  S. 
349  (1978),  the  Court  once  again  enunciated  this  principle, 
despite  any  "informality  with  which  [the  judge]  proceeded," 
and  despite  any  ex  parte  feature  of  the  proceeding.     Id. ,  at 
363,  and  n.  12. 

With  this  judicial  immunity  firmly  established,  the  Court 
has  extended  absolute  immunity  to  certain  others  who  per- 
form functions  closely  associated  with  the  judicial  process. 
The  federal  hearing  examiner  and  administrative  law  judge 
have  been  afforded  absolute  immunity.     "There  can  be  little 
doubt  that  the  role  of  the  modern  federal  hearing  examiner  or 
administrative  law  judge  ...  is  'functionally  comparable'  to 
that  of  a  judge."     Butz  v.  Economou,  438  U.  S.  478,  513 
(1978).     Full  immunity  also  has  been  given  to  federal  and 
state  prosecutors.      Yaselli  v.   Goff,  275  U.  S.   503  (1927), 
aff'g  12  F.  2d  396  (CA2  1926);  Imbler  v.   Pachtman,  424 
U.  S.  409,  424-426  (1976).     The  same  is  true  for  witnesses, 
including  police  officers,  who  testify  in  judicial  proceedings. 
Witnesses  are  "integral  parts  of  the  judicial  process"  and, 
accordingly,  are  shielded  by  absolute  immunity.     Briscoe  v. 
LaHue,  460  U.  S.  325,  335  (1983).     And  the  Court  has  noted 
the  adoption  in  this  country  of  the  principle  of  immunity  for 
grand  jurors.     See  Imbler  v.  Pachtman,  424  U.  S.,  at  423, 
n.  20.     See  also  Butz  v.  Economou,  438  U.  S.,  at  509-510. 
Although  this  Court  has  not  decided  whether  state  parole 
officials  enjoy  absolute  immunity  as  a  matter  of  federal  law, 
see  Martinez  v.  California,  444  U.  S.  277,  284  (1980),  federal 


CLEAVINGER  v.  SAXNER  201 

193  Opinion  of  the  Court 

appellate  courts  have  so  held.  See,  e.  g.,  Sellars  v. 
Procunier,  641  F.  2d  1295,  1303  (CA9),  cert,  denied,  454 
U.  S.  1102  (1981);  Evans  v.  Dillahunty,  711  F.  2d  828, 
830-831  (CAS  1983);  United  States  ex  rel.  Powell  v.  Irving, 
684  F.  2d  494  (CAT  1982). 

B.  The  Court  has  extended  absolute  immunity  to  the 
President  when  damages  liability  is  predicated  on  his  official 
act.      Nixon  v.   Fitzgerald,  457  U.  S.  731,  744-758  (1982). 
See  Harlow  v.  Fitzgerald,  457  U.  S.  800,  807  (1982).     "For 
executive  officials  in  general,  however,  our  cases  make  plain 
that  qualified  immunity  represents  the  norm."     Ibid.     See 
Scheuer  v.  Rhodes,  416  U.  S.  232  (1974)  (State  Governor  and 
his  aides);  Harlow  v.  Fitzgerald,  supra  (Presidential  aides); 
Butz  v.  Economou,  supra  (Cabinet  member,  acknowledging, 
however,  that  there  are  "those  exceptional  situations  where 
it  is  demonstrated  that  absolute  immunity  is  essential  for  the 
conduct  of  the  public  business,"  438  U.  S.,  at  507);  Procunier 
v.  Navarette,  434  U.  S.   555  (1978)  (state  prison  officials); 
Wood  v.  Strickland,  420  U.  S.  308  (1975)  (school  board  mem- 
bers); Pierson  v.  Ray,  supra  (police  officers).      Spalding  v. 
Vilas,  161  U.  S.  483  (1896)  (Postmaster  General),  and  Barr 
v.  Matteo,  360  U.  S.  564  (1959)  (Government  officials),  where 
full  immunity  was  afforded,  both  antedated  Bivens.     In  any 
event,  "federal  officials  who  seek  absolute  exemption  from 
personal  liability  for  unconstitutional  conduct  must  bear  the 
burden  of  showing  that  public  policy  requires  an  exemption  of 
that  scope."     Butz  v.  Economou,  438  U.  S.,  at  506;  Harlow 
v.  Fitzgerald,  457  U.  S.,  at  808. 

C.  The  Court  has  said  that  "in  general  our  cases  have  fol- 
lowed a  'functional'  approach  to  immunity  law."     Id.,  at  810. 
"[O]ur  cases  clearly  indicate  that  immunity  analysis  rests  on 
functional  categories,  not  on  the  status  of  the  defendant." 
Briscoe  v.  LaHue,  460  U.  S.,  at  342.      Absolute  immunity 
flows  not  from  rank  or  title  or  "location  within  the  Govern- 
ment," Butz  v.  Economou,  438  U.  S.,  at  511,  but  from  the 
nature  of  the  responsibilities  of  the  individual  official.     And 


202  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

in  Butz  the  Court  mentioned  the  following  factors,  among 
others,  as  characteristic  of  the  judicial  process  and  to  be  con- 
sidered in  determining  absolute  as  contrasted  with  qualified 
immunity:  (a)  the  need  to  assure  that  the  individual  can  per- 
form his  functions  without  harassment  or  intimidation;  (b)  the 
presence  of  safeguards  that  reduce  the  need  for  private  dam- 
ages actions  as  a  means  of  controlling  unconstitutional  con- 
duct; (c)  insulation  from  political  influence;  (d)  the  importance 
of  precedent;  (e)  the  adversary  nature  of  the  process;  and  (f) 
the  correctability  of  error  on  appeal.  Id.,  at  512. 

Ill 

We  turn  to  the  application  of  these  principles  to  the  facts  of 
the  present  case.  Judge  Cudahy  of  the  Court  of  Appeals,  in 
his  separate  concurring  opinion,  727  F.  2d,  at  673,  stressed 
the  Butz  factors  and  was  persuaded  by  what  he  felt  were  the 
absence  of  procedural  safeguards,  the  rare  and  exceptional 
character  of  absolute  immunity,  and  the  need  for  such  immu- 
nity only  when  public  policy  requires  it.  Id.,  at  674-676. 

Petitioners,  in  response,  and  seemingly  in  order  to  negate 
the  significance  of  certain  of  the  specified  factors,  point  out 
that  grand  jury  proceedings  possess  few  procedural  safe- 
guards that  are  associated  with  court  proceedings,  and  are 
largely  immune  from  any  type  of  judicial  review.     See,  e.  g. , 
United  States  v.  Calandra,  414  U.  S.  338,  345  (1974);  Cos- 
tello  v.  United  States,  350  U.  S.  359  (1956).     Petitioners  also 
observe  that  prosecutor ial  decisionmaking  is  not  subject  to 
the  formalities  of  trials;  instead,  the  prosecutor  exercises 
broad  and  generally  unreviewable  discretion.      Yet  grand 
jurors  and  prosecutors  enjoy  absolute  immunity.      Petition- 
ers finally  argue  that  the  Court's  cases  teach  that  absolute 
immunity  shields  an  official  if  (a)  the  official  performs  an  ad- 
judicatory  function  comparable  to  that  of  a  judge,  (b)  the 
function  is  of  sufficient  public  importance,  and  (c)  the  proper 
performance  of  that  function  would  be  subverted  if  the  offi- 


CLEAVINGER  v.  SAXNER  203 

193  Opinion  of  the  Court 

cial  were  subjected  to  individual  suit  for  damages.  Brief  for 
Petitioners  21. 

When  we  evaluate  the  claim  of  immunity  for  the  commit- 
tee members,  we  bear  in  mind  that  immunity  status  is  for 
the  benefit  of  the  public  as  well  as  for  the  individual  con- 
cerned. Pierson  v.  Ray,  386  U.  S. ,  at  554.  The  committee 
members,  in  a  sense,  do  perform  an  adjudicatory  function  in 
that  they  determine  whether  the  accused  inmate  is  guilty  or 
innocent  of  the  charge  leveled  against  him;  in  that  they  hear 
testimony  and  receive  documentary  evidence;  in  that  they 
evaluate  credibility  and  weigh  evidence;  and  in  that  they 
render  a  decision.  We  recognize,  too,  the  presence  of  some 
societal  importance  in  this  dispute-resolution  function.  The 
administration  of  a  prison  is  a  difficult  undertaking  at  best, 
for  it  concerns  persons  many  of  whom  have  demonstrated 
a  proclivity  for  antisocial,  criminal,  and  violent  conduct. 
See  Hudson  v.  Palmer,  468  U.  S.  517,  526-527  (1984).  We 
also  acknowledge  that  many  inmates  do  not  refrain  from  ha- 
rassment and  intimidation.  The  number  of  nonmeritorious 
prisoners'  cases  that  come  to  this  Court's  notice  is  evidence  of 
this.  Tension  between  prison  officials  and  inmates  has  been 
described  as  "unremitting."  Wolff  v.  McDonnell,  418  U.  S. 
539,  562  (1974).  "Retaliation  is  much  more  than  a  theoretical 
possibility."  Ibid.  And  we  do  not  underestimate  the  fact, 
stressed  by  petitioners,  that  committee  members  usually  are 
persons  of  modest  means  and,  if  they  are  suable  and  unpro- 
tected, perhaps  would  be  disinclined  to  serve  on  a  discipline 
committee.  See  Ward  v.  Johnson,  690  F.  2d,  at  1108. 

We  conclude,  nonetheless,  that  these  concerns,  to  the  ex- 
tent they  are  well  grounded,  are  overstated  in  the  context  of 
constitutional  violations.  We  do  not  perceive  the  discipline 
committee's  function  as  a  "classic"  adjudicatory  one,  as  peti- 
tioners would  describe  it.  Tr.  of  Oral  Arg.  9-10.  Surely, 
the  members  of  the  committee,  unlike  a  federal  or  state 
judge,  are  not  "independent";  to  say  that  they  are  is  to  ignore 
reality.  They  are  not  professional  hearing  officers,  as  are 


204  OCTOBEE  TERM,  1985 

Opinion  of  the  Court  474  U,  S. 

administrative  law  judges.      They  are,  instead,  prison  offi- 
cials, albeit  no  longer  of  the  rank  and  file,  temporarily  di- 
verted from  their  usual  duties.     See  Ward  v.  Johnson,  690 
F.  2d,  at  1115  (dissenting  opinion).     They  are  employees  of 
the  Bureau  of  Prisons  and  they  are  the  direct  subordinates  of 
the  warden  who  reviews  their  decision.     They  work  with  the 
fellow  employee  who  lodges  the  charge  against  the  inmate 
upon  whom  they  sit  in  judgment.     The  credibility  determina- 
tion they  make  often  is  one  between  a  co-worker  and  an  in- 
rnate.      They  thus  are  under  obvious  pressure  to  resolve  a 
disciplinary  dispute  in  favor  of  the  institution  and  their  fellow- 
employee.     See  Ponte  v.  Real,  471  U.  S.  491,  513  (1985)  (dis- 
senting opinion).     It  is  the  old  situations!  problem  of  the  rela- 
tionship between  the  keeper  and  the  kept,  a  relationship  that 
hardly  is   conducive  to  a  truly  adjudicatory  performance. 
Neither  do  we  equate  this  discipline  committee  member- 
ship to  service  upon  a  traditional  parole  board.     The  board 
is  a  "neutral  and  detached"  hearing  body.      Morrissey  v. 
Brewer,  408  U.  S.  471,  489  (1972).     The  parole  board  mem- 
ber has  been  described  as  an  impartial  professional  serving 
essentially  "  'as  an  arm  of  the  sentencing  judge.' "     Sellars  v. 
Procunier,  641  P.  2d.,  at  1302,  n.  15,   quoting  Bricker  v. 
Michigan  Parole  Board,  405  F.  Supp.  1340,  1345  (ED  Mich. 
1975).     And  in  the  penalty  context,  the  parole  board  is  con- 
stitutionally required  to  provide  greater  due  process  protec- 
tion than  is  the  institution  discipline  committee.      Wolff  v. 
McDonnell,  418  U.  S.,  at  561. 

"We  relate  this  committee  membership,  instead,  to  the 
school  board  service  the  Court  had  under  consideration  in 
Wood  v.  Strickland,  420  U.  S.  308  (1975).  The  school  board 
members  were  to  function  as  "adjudicators  in  the  school  disci- 
plinary process,"  and  they  were  to  "judge  whether  there 
have  been  violations  of  school  regulations  and,  if  so,  the  ap- 
propriate sanctions  for  the  violations. "  Id. ,  at  3 19.  Despite 
the  board's  adjudicative  function  of  that  extent,  the  Court 
concluded  that  the  board  members  were  to  be  protected  by 


CLEAVINGER  u  SAXNER  205 

193  Opinion  of  the  Court 

only  qualified  immunity.  After  noting  the  suggestion  of  the 
presence  of  a  deterrence-from-service  factor,  the  Court  con- 
cluded that  "absolute  immunity  would  not  be  justified  since  it 
would  not  sufficiently  increase  the  ability  of  school  officials  to 
exercise  their  discretion  in  a  forthright  manner  to  warrant 
the  absence  of  a  remedy  for  students  subjected  to  intentional 
or  otherwise  inexcusable  deprivations."  Id.,  at  320. 

That  observation  and  conclusion  are  equally  applicable 
here.  It  is  true,  of  course,  that  the  "prisoner  and  the  school- 
child  stand  in  wholly  different  circumstances,  separated  by 
the  harsh  facts  of  criminal  conviction  and  incarceration." 
Ingraham  v.  Wright,  430  U.  S.  651,  669  (1977).  But  in 
Ingraham  it  was  also  said  that  even  if  schoolchildren  and 
their  parents  do  not  have  a  prisoner's  motive  or  proclivity  to 
institute  harassing  lawsuits,  they  have  'little  need  for  the 
protection  of  the  Eighth  Amendment,"  for  "the  openness  of 
the  public  school  and  its  supervision  by  the  community  afford 
significant  safeguards  against  the  kinds  of  abuses  from  which 
the  Eighth  Amendment  protects  the  prisoner."  Id.,  at  670. 
If  qualified  immunity  is  sufficient  for  the  schoolroom,  it 
should  be  more  than  sufficient  for  the  jailhouse  where  the 
door  is  closed,  not  open,  and  where  there  is  little,  if  any, 
protection  by  way  of  community  observation. 

Petitioners  assert  with  some  vigor  that  procedural  formal- 
ity is  not  a  prerequisite  for  absolute  immunity.  They  refer 
to  well-known  summary  and  ex  parte  proceedings,  such  as 
the  issuance  of  search  warrants  and  temporary  restraining 
orders,  and  the  setting  of  bail.  And  they  sound  a  note  of 
practicality  by  stating  that  recasting  prison  disciplinary  tri- 
bunals in  the  mold  of  formal  administrative  bodies  would  be 
inimical  to  the  needs  of  prison  discipline  and  security.  It  is 
said  that  committee  procedures  fully  comply  with,  and  indeed 
exceed,  what  Wolff  v.  McDonnell,  supra,  requires,  that  they 
are  sufficiently  "judicial"  to  qualify  for  absolute  immunity, 
and  that  Wo  Iff  "would  be  undone"  as  a  practical  matter  if  ab- 
solute immunity  were  not  afforded.  Brief  for  Petitioners  30. 


206  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

In  any  event,  it  is  asserted,  committee  proceedings  contain 
ample  safeguards  to  ensure  the  avoidance  or  correction  of 
constitutional  errors.  Among  these  are  the  qualifications  for 
committee  service;  prior  notice  to  the  inmate;  representation 
by  a  staff  member;  the  right  to  present  certain  evidence  at 
the  hearing;  the  right  to  be  present;  the  requirement  for  a 
detailed  record;  the  availability  of  administrative  review  at 
three  levels  (demonstrated  by  the  relief  obtained  on  review 
by  these  respondents  at  the  first  two  levels);  and  the  avail- 
ability of  ultimate  review  in  federal  court  under  28  U.  S.  C. 
§2241.  Finally,  it  is  said  that  qualified  immunity  would 
provide  insufficient  protection  for  committee  members. 

We  are  not  persuaded.  To  be  sure,  the  line  between 
absolute  immunity  and  qualified  immunity  often  is  not  an 
easy  one  to  perceive  and  structure.  That  determination  in 
this  case,  however,  is  not  difficult,  and  we  readily  conclude 
that  these  committee  members  fall  on  the  qualified-immunity 
side  of  the  line. 

Under  the  Bureau's  disciplinary  policy  in  effect  at  the  time 
of  respondents'  hearings,  few  of  the  procedural  safeguards 
contained  in  the  Administrative  Procedure  Act  under  con- 
sideration in  Butz  were  present.  The  prisoner  was  to  be 
afforded  neither  a  lawyer  nor  an  independent  nonstaff  repre- 
sentative. There  was  no  right  to  compel  the  attendance  of 
witnesses  or  to  cross-examine.  There  was  no  right  to  dis- 
covery. There  was  no  cognizable  burden  of  proof.  No  ver- 
batim transcript  was  afforded.  Information  presented  often 
was  hearsay  or  self-serving.  The  committee  members  were 
not  truly  independent.  In  sum,  the  members  had  no  identifi- 
cation with  the  judicial  process  of  the  kind  and  depth  that  has 
occasioned  absolute  immunity. 

Qualified  immunity,  however,  is  available  to  these  commit- 
tee members.  That,  we  conclude,  is  the  proper  point  at 
which  to  effect  the  balance  between  the  opposing  consider- 
ations. This  less-than-absolute  protection  is  not  of  small 
consequence.  As  the  Court  noted  in  Butz,  438  U.  S.,  at 


CLEAVINGER  v.  SAXNER  207 

193  Opinion  of  the  Court 

507-508,  insubstantial  lawsuits  can  be  recognized  and  be 
quickly  disposed  of,  and  firm  application  of  the  Federal  Rules 
of  Civil  Procedure  "will  ensure  that  federal  officials  are  not 
harassed  by  frivolous  lawsuits."  Id.,  at  508.  All  the  com- 
mittee members  need  to  do  is  to  follow  the  clear  and  simple 
constitutional  requirements  of  Wolff  v.  McDonnell,  supra; 
they  then  should  have  no  reason  to  fear  substantial  harass- 
ment and  liability.  Qualified  immunity  has  been  widely 
imposed  on  executive  officials  who  possess  greater  respon- 
sibilities. See,  e.  g.,  Scheuer  v.  Rhodes,  Butz  v.  Economou, 
Harlow  v.  Fitzgerald,  all  supra,  and  Mitchell  v.  Forsyth,  472 
U.  S.  511  (1985).  "[I]t  is  not  unfair  to  hold  liable  the  official 
who  knows  or  should  know  he  is  acting  outside  the  law,  and 
.  .  .  insisting  on  an  awareness  of  clearly  established  constitu- 
tional limits  will  not  unduly  interfere  with  the  exercise  of  offi- 
cial judgment."  Butz  v.  Economou,  438  U.  S.,  at  506-507. 
See  also  Barr  v.  Matteo,  360  U.  S.,  at  588-589  (BREN- 
NAN,  J.,  dissenting);  Bivens  v.  Six  Unknown  Fed.  Narcotics 
Agents,  403  U.  S.,  at  411  (Harlan,  J.,  concurring  in  judg- 
ment). See  Gray,  Private  Wrongs  of  Public  Servants,  47 
Calif.  L.  Rev.  303,  339  (1959).  Public  policy  has  not  dictated 
otherwise. 

It  is  the  business  of  prison  officials,  of  course,  to  maintain 
order  within  their  institutions.  But  this  fact  does  not  sup- 
port a  claim  that  every  step  taken  to  protect  constitutional 
rights  of  prisoners  will  lead  to  a  breakdown  in  institutional 
discipline  and  security.  Routine  and  automatic  arguments 
to  this  effect  have  been  made  before  and  have  been  rejected 
by  this  Court.  See  Johnson  v.  Avery,  393  U.  S.  483, 
486-487  (1969);  Lee  v.  Washington,  390  U.  S.  333,  334  (1968); 
Ex  parte  Hull,  312  U.  S.  546  (1941). 

We  likewise  are  not  impressed  with  the  argument  that 
anything  less  than  absolute  immunity  will  result  in  a  flood  of 
litigation  and  in  substantial  procedural  burdens  and  expense 
for  committee  members.  This  argument,  too,  has  been 
made  before.  But  this  Court's  pronouncements  in  Harlow 


208  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

v.  Fitzgerald,  457  U.  S.,  at  813-820,  place  the  argument  in 
appropriate  perspective,  for  many  cases  may  be  disposed  of 
without  the  necessity  of  pretrial  discovery  proceedings.     Our 
experience  teaches  us  that  the  vast  majority  of  prisoner  cases 
are  resolved  on  the  complaint  alone.      Of  those  prisoners 
whose  complaints  survive  initial  dismissal,  few  attempt  dis- 
covery and  fewer  still  actually  obtain  it.     See  Turner,  When 
Prisoners  Sue:  A  Study  of  Prisoner  Section  1983  Suits  in 
the  Federal  Courts,  92  Harv.  L.  Rev.  610  (1979).     And  any 
expense  of  litigation  largely  is  alleviated  by  the  fact  that 
a  Government  official  who  finds  himself  as  a  defendant  in 
litigation  of  this  kind  is  often  represented,  as  in  this  case, 
by  Government  counsel.     If  the  problem  becomes  acute,  the 
Government  has  alternatives  available  to  it:  it  might  decide 
to  indemnify  the  defendant  official;  Congress  could  make  the 
claim  a  subject  for  the  Federal  Tort  Claims  Act;  and  Con- 
gress could  even  consider  putting  in  place  administrative  law 
judges  to  preside  at  prison  committee  hearings. 
The  judgment  of  the  Court  of  Appeals  is  affirmed. 

It  is  so  ordered. 

JUSTICE  REHNQUIST,  with  whom  THE  CHIEF  JUSTICE  and 
JUSTICE  WHITE  join,  dissenting. 

The  Court  concludes  that  the  members  of  the  Institution 
Discipline  Committee  of  a  federal  prison  are  more  like  school 
board  members  than  they  are  like  administrative  law  judges 
or  members  of  a  parole  board,  and  that  therefore  they  are  not 
entitled  to  absolute  immunity  from  liability  for  damages. 
Concededly  the  hearings  in  which  these  officials  perform 
their  adjudicatory  function  do  not  include  all  of  the  proce- 
dural safeguards  or  the  adherence  to  written  precedent  that 
surround  the  function  of  an  administrative  law  judge,  but  I 
do  not  read  Butz  v.  Econoniou,  438  U.  S.  478  (1978),  as  mak- 
ing these  factors  dispositive  against  a  claim  for  absolute  im- 
munity. I  also  think  that  the  factors  peculiar  to  the  prison 


CLEAVINGER  u  SAXNER  209 

193  REHNQUIST,  J.,  dissenting 

environment  counsel  in  favor  of  such  an  immunity  for  these 
officials. 

Litigation  before  administrative  law  judges  is  generally 
conducted  by  lawyers,  who  are  trained  to  suppress  their  dis- 
like of,  or  contempt  for,  the  particular  judge  before  whom 
they  try  their  case.  The  lawyers  and  their  clients  come  from 
their  homes  and  hotels  to  a  government  building  in  the  morn- 
ing, present  their  case  to  the  judge,  go  and  have  lunch,  re- 
turn in  the  afternoon,  and  again  present  their  case.  When 
the  court  recesses  for  the  day,  the  parties  and  their  lawyers 
return  to  their  homes  and  hotels.  At  least  one  side  will  be 
disappointed  with  the  ultimate  ruling  of  the  judge,  but  there 
is  little  reason  to  think  that  they  will  bear  personal  animus  or 
hostility  toward  the  judge  as  a  result  of  his  decision. 

Inside  the  prison  walls,  however,  a  considerably  different 
atmosphere  appears  to  obtain.  A  prisoner  charged  with  a 
serious  violation  of  prison  regulations  and  threatened  with 
administrative  detention  and  loss  of  good  time  may  have 
quite  different  emotions  when  appearing  before  the  Institu- 
tion Discipline  Committee  than  does,  for  example,  the  plant 
manager  of  an  employer  charged  with  a  violation  of  the  Na- 
tional Labor  Relations  Act  appearing  before  an  adminis- 
trative law  judge.  "Prison  life,  and  relations  between  the 
inmates  themselves  and  between  the  inmates  and  prison  offi- 
cials or  staff,  contain  the  ever-present  potential  for  violent 
confrontation  and  conflagration."  Jones  v.  North  Carolina 
Prisoners9  Labor  Union,  433  U.  S.  119,  132  (1977). 

Our  observations  in  Preiser  v.  Rodriguez,  411  U.  S.  475 
(1973),  about  the  relationship  between  a  State  and  its  prison- 
ers are  equally  applicable  to  the  relationship  between  the 
Federal  Government  and  its  prisoners: 

"The  relationship  of  state  prisoners  and  the  state  officers 
who  supervise  their  confinement  is  far  more  intimate 
than  that  of  a  State  and  a  private  citizen.  For  state 
prisoners,  eating,  sleeping,  dressing,  washing,  working, 
and  playing  are  all  done  under  the  watchful  eye  of  the 


210  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

State,  and  so  the  possibilities  for  litigation  under  the 
Fourteenth  Amendment  are  boundless.  What  for  a  pri- 
vate citizen  would  be  a  dispute  with  his  landlord,  with 
his  employer,  with  his  tailor,  with  his  neighbor,  or  with 
his  banker  becomes,  for  the  prisoner,  a  dispute  with  the 
State."  Id.,  at  492. 

In  Wolff  v.  McDonnell,  418  U.  S.  539  (1974),  our  first 
major  decision  applying  the  Due  Process  Clause  of  the  Four- 
teenth Amendment  to  prison  disciplinary  proceedings,  we 
said: 

"Prison  disciplinary  proceedings  .  .  .  take  place  in  a 
closed,  tightly  controlled  environment  peopled  by  those 
who  have  chosen  to  violate  the  criminal  law  and  who 
have  been  lawfully  incarcerated  for  doing  so.  Some  are 
first  offenders,  but  many  are  recidivists  who  have  re- 
peatedly employed  illegal  and  often  very  violent  means 
to  attain  their  ends.  They  may  have  little  regard  for  the 
safety  of  others  or  their  property  or  for  the  rules  de- 
signed to  provide  an  orderly  and  reasonably  safe  prison 
life.  .  .  .  Guards  and  inmates  co-exist  in  direct  and  inti- 
mate contact.  Tension  between  them  is  unremitting. 
Frustration,  resentment,  and  despair  are  commonplace. 
Relationships  among  the  inmates  are  varied  and  complex 
and  perhaps  subject  to  the  unwritten  code  that  exhorts 
inmates  not  to  inform  on  a  fellow  prisoner."  Id.,  at 
561-562. 

Not  only  may  emotions  run  higher  and  tensions  be  exacer- 
bated in  the  prison  environment,  but  prisoners  simply  are  not 
subject  to  many  of  the  constraints  which  often  deter  mem- 
bers of  the  population  at  large  from  litigating  at  the  drop  of  a 
hat.  We  have  held,  for  example,  that  prisoners  in  confine- 
ment are  entitled  to  free  access  to  lawbooks  or  some  other 
legal  assistance.  Bounds  v.  Smith,  430  U.  S.  817  (1977). 
And  the  great  majority  of  prisoners  qualify  for  in  forma 
pauperis  status,  which  entitles  them  to  relief  from  statutory 


CLEAVINGER  v.  SAXNER  211 

193  REHNQUIST,  J.,  dissenting 

filing  fees.  With  less  to  profitably  occupy  their  time  than 
potential  litigants  on  the  outside,  and  with  a  justified  feeling 
that  they  have  much  to  gain  and  virtually  nothing  to  lose, 
prisoners  appear  to  be  far  more  prolific  litigants  than  other 
groups  in  the  population.  And  prisoners  have  made  increas- 
ing use  of  §  1983  and  Bivens-type  suits  in  recent  years:  18,856 
such  suits  were  filed  in  federal  court  in  the  year  ending  June 
30,  1984,  as  compared  to  just  6,606  in  1975.  Administrative 
Office  of  the  United  States  Courts,  Annual  Report  of  the 
Director  143,  Table  24  (1984). 

In  light  of  the  foregoing,  I  think  a  slightly  different  balanc- 
ing of  the  ledger  is  called  for  in  the  case  of  prison  disciplinary 
officials  than  in  the  case  of  administrative  law  judges.  The 
latter  are  surrounded  by  greater  procedural  protections  for 
the  litigants,  and  are  governed  by  precedent.  But  the  for- 
mer operate  in  a  far  more  volatile  environment,  are  called 
upon  to  make  decisions  more  quickly,  and  are  much  more 
likely  to  be  the  object  of  harassing  litigation  in  the  absence  of 
absolute  immunity.  If  in  fact  the  administrative  system  set 
up  by  the  government  offers  administrative  relief  from  these 
officials'  mistakes,  and  thereby  permits  the  vindication  of 
constitutional  claims  in  this  manner,  I  believe  that  the  grant 
of  absolute  immunity  meets  the  conditions  set  out  in  Butz  v. 
Economou,  438  U.  S.  478  (1978). 

Here  we  need  not  look  far  for  the  availability  or  speed  of 
administrative  relief.  Both  respondents  appeared  before 
the  Institution  Discipline  Committee  on  February  21,  1975. 
A  few  days  later  that  committee  issued  its  ruling,  and 
respondents  appealed  to  the  Warden.  On  March  21,  1975, 
the  Warden  granted  most  of  the  relief  requested,  ordering 
respondents  released  from  administrative  segregation  and 
restoring  their  forfeited  good  time.  He  also  directed  that 
their  records  carry  a  notation  that  the  incident  should  not  ad- 
versely affect  their  chances  for  parole.  Respondents  then 
appealed  to  the  Regional  Director  of  the  Bureau  of  Prisons, 
who  on  April  11,  1975,  granted  respondents'  final  request 


212  OCTOBEE  TERM,  1985 

KEHNQUIST,  J.,  dissenting  474  U.  S. 

that  all  mention  of  the  incident  be  expunged  from  their 
records.  The  entire  administrative  proceeding,  from  the 
day  on  which  the  hearing  before  the  committee  was  held  to 
the  final  ruling  of  the  Regional  Director  granting  respondents 
all  of  the  relief  requested,  took  less  than  two  months, 

In  Price  v.  Jotouftm,  334  U.  S.  266  (1948),  we  said  that 
"Qlawml  incarceration  brings  about  the  necessary  with- 
drawal or  limitation  of  many  privileges  and  rights,  a  re- 
traction justified  by  the  considerations  underlying  our  penal 
system,"  li,  at  285,  It  requires  no  more  than  a  common- 
sense  application  of  this  observation  to  the  general  principles 
laid  down  in  Mi,  supra,  to  conclude  that  the  members  of 
the  Institution  Discipline  Committee  are  entitled  to  absolute 
immunity  from  liability  for  their  decisions. 

I  respectfully  dissent, 


EASTERN  AIR  LINES  u  MAHFOUD  213 

Per  Curiam 


EASTERN  AIR  LINES,  INC.  v.  MAHFOUD  ON  BEHALF 
OF  MAHFOUD  ET  AL. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  FIFTH  CIRCUIT 

No.  83-1807.      Argued  January  15,   1985— Reargued  October  9,   1985— 
Decided  December  10,  1985 

729  F.  2d  777,  affirmed  by  an  equally  divided  Court. 

Richard  M.  Sharp  reargued  the  cause  for  petitioner. 
With  him  on  the  briefs  were  Jeffrey  C.  Martin,  Suzanne 
E.  Meeker,  Francis  G.  Weller,  and  Marc  J.  Yellin. 

George  E.  Farrell  reargued  the  cause  and  filed  a  brief  for 
respondent.  * 

PER  CURIAM. 

The  judgment  is  affirmed  by  an  equally  divided  Court. 

JUSTICE  BRENNAN  took  no  part  in  the  decision  of  this  case. 


*Juanita  M.   Madole  and  Donald   W.   Madole  filed  a  brief  for  Dina 
Avecilla  et  al.  as  amid  curiae  urging  affirmance. 


214  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

REGENTS  OF  THE  UNIVERSITY  OF  MICHIGAN  v. 

EWING 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  SIXTH  CIRCUIT 

No.  84-1273.     Argued  October  8,  1985— Decided  December  12,  1985 

Respondent  was  enrolled  in  a  6-year  program  of  study  at  the  University  of 
Michigan  known  as  "Inteflex."  An  undergraduate  degree  and  a  medical 
degree  are  awarded  upon  successful  completion  of  the  program.  To 
qualify  for  the  final  two  years  of  the  program  a  student  must  pass  an 
examination  known  as  "NBME  Part  I."  Respondent  was  dismissed 
from  the  University  when  he  failed  this  examination  with  the  lowest 
score  recorded  in  the  history  of  the  Inteflex  program.  After  unsuccess- 
fully seeking,  from  University  authorities,  readmission  to  the  program 
and  an  opportunity  to  retake  the  examination,  respondent  brought  suit 
in  Federal  District  Court,  alleging  a  right  to  retake  the  examination  on 
the  ground,  inter  alia,  that  he  had  a  property  interest  in  the  Inteflex 
program  and  that  his  dismissal  was  arbitrary  and  capricious  in  violation 
of  his  "substantive  due  process  rights"  guaranteed  by  the  Fourteenth 
Amendment.  While  determining  that  respondent  had  a  constitutionally 
protected  property  interest  in  continued  enrollment  in  the  Inteflex  pro- 
gram, the  District  Court  found  no  violation  of  his  due  process  rights. 
The  Court  of  Appeals  reversed. 

Held.  Even  if  respondent's  assumed  property  interest  gave  rise  to  a 
substantive  right  under  the  Due  Process  Clause  to  continue  enrollment 
free  from  arbitrary  state  action,  the  facts  of  record  disclose  no  such 
action.  The  record  unmistakably  demonstrates  that  the  decision  to  dis- 
miss respondent  was  made  conscientiously  and  with  careful  deliberation, 
based  on  an  evaluation  of  his  entire  academic  career  at  the  University, 
including  his  singularly  low  score  on  the  NBME  Part  I  examination. 
The  narrow  avenue  for  judicial  review  of  the  substance  of  academic  deci- 
sions precludes  any  conclusion  that  such  decision  was  such  a  substantial 
departure  from  accepted  academic  norms  as  to  demonstrate  that  the  fac- 
ility did  not  exercise  professional  judgment.  Pp.  222-228. 
742  F.  2d  913,  reversed  and  remanded. 

STEVENS,  J.,  delivered  the  opinion  for  a  unanimous  Court.     POWELL, 
J.,  filed  a  concurring  opinion,  post,  p.  228. 

Roderick  K.  Daane  argued  the  cause  for  petitioner.     With 
him  on  the  briefs  was  Peter  A.  Davis. 


REGENTS  OF  UNIVERSITY  OF  MICHIGAN  v.  EWING        215 
214  Opinion  of  the  Court 

Michael  M.  Conway  argued  the  cause  for  respondent. 
With  him  on  the  brief  was  Mary  K.  Butler.  * 

JUSTICE  STEVENS  delivered  the  opinion  of  the  Court. 

Respondent  Scott  Ewing  was  dismissed  from  the  Univer- 
sity of  Michigan  after  failing  an  important  written  examina- 
tion. The  question  presented  is  whether  the  University's 
action  deprived  Ewing  of  property  without  due  process  of 
law  because  its  refusal  to  allow  him  to  retake  the  examina- 
tion was  an  arbitrary  departure  from  the  University's  past 
practice.  The  Court  of  Appeals  held  that  his  constitutional 
rights  were  violated.  We  disagree. 

I 

In  the  fall  of  1975  Ewing  enrolled  in  a  special  6-year  pro- 
gram of  study,  known  as  "Inteflex,"  offered  jointly  by  the 
undergraduate  college  and  the  Medical  School.1  An  under- 
graduate degree  and  a  medical  degree  are  awarded  upon  suc- 
cessful completion  of  the  program.  In  order  to  qualify  for 
the  final  two  years  of  the  Inteflex  program,  which  consist  of 
clinical  training  at  hospitals  affiliated  with  the  University, 
the  student  must  successfully  complete  four  years  of  study 
including  both  premedical  courses  and  courses  in  the  basic 
medical  sciences.  The  student  must  also  pass  the  "NBME 

*Bnefs  of  amici  cunae  urging  reversal  were  filed  for  the  United  States 
by  Acting  Solicitor  General  Wallace,  Acting  Assistant  Attorney  General 
Willard,  Deputy  Solicitor  General  Geller,  Leonard  Schaitman,  and  Freddi 
Lipstein;  for  the  American  Council  on  Education  et  al.  by  Eugene  D  Gul- 
land,  Catherine  W.  Brown,  Sheldon  Elliot  Steinbach,  and  Joseph  Anthony 
Keyes,  Jr.,  for  the  Curators  of  the  University  of  Missouri  et  al.  by  Marvin 
E.  Wright  and  William  F  Arnet;  and  for  Duke  University  et  al.  by  Rob- 
ert B,  Donin,  Daniel  Steiner,  Eugene  J  McDonald,  Estelle  A  Fishbein, 
Michael  C.  Weston,  and  Peter  H.  Ruger. 

Michael  H  Gottesman,  Robert  M  Weinberg,  Joy  L  Koletsky,  Laurence 
Gold,  and  David  M.  Silbennan  filed  a  brief  for  the  National  Education 
Association  et  al.  as  amici  cunae  urging  affirmance. 

Anne  H.  Franke  and  Jacqueline  W.  Mintz  filed  a  brief  for  the  American 
Association  of  University  Professors  as  amicus  cunae 

1  The  Intefiex  program  has  since  been  lengthened  to  seven  years 


216  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Part  I"— a  2-day  written  test  administered  by  the  National 
Board  of  Medical  Examiners. 

In  the  spring  of  1981,  after  overcoming  certain  academic 
and  personal  difficulties,  Ewing  successfully  completed  the 
courses  prescribed  for  the  first  four  years  of  the  Inteflex 
program  and  thereby  qualified  to  take  the  NBME  Part  I. 
Ewing  failed  five  of  the  seven  subjects  on  that  examination, 
receiving  a  total  score  of  235  when  the  passing  score  was  345. 
(A  score  of  380  is  required  for  state  licensure  and  the  national 
mean  is  500.)  Ewing  received  the  lowest  score  recorded  by 
an  Inteflex  student  in  the  brief  history  of  that  program. 

On  July  24,  1981,  the  Promotion  and  Review  Board  individ- 
ually reviewed  the  status  of  several  students  in  the  Inteflex 
program.  After  considering  Ewing's  record  in  some  detail, 
the  nine  members  of  the  Board  in  attendance  voted  unani- 
mously to  drop  him  from  registration  in  the  program. 

In  response  to  a  written  request  from  Ewing,  the  Board 
reconvened  a  week  later  to  reconsider  its  decision.  Ewing 
appeared  personally  and  explained  why  he  believed  that  his 
score  on  the  test  did  not  fairly  reflect  his  academic  progress 
or  potential.2  After  reconsidering  the  matter,  the  nine  vot- 
ing members  present  unanimously  reaffirmed  the  prior  action 
to  drop  Ewing  from  registration  in  the  program. 

In  August,  Ewing  appealed  the  Board's  decision  to  the 
Executive  Committee  of  the  Medical  School.  After  giving 
Ewing  an  opportunity  to  be  heard  in  person,  the  Executive 
Committee  unanimously  approved  a  motion  to  deny  his  ap- 
peal for  a  leave  of  absence  status  that  would  enable  him  to 
retake  Part  I  of  the  NBME  examination.  In  the  following 


2  At  this  and  later  meetings  Ewing  excused  his  NBME  Part  I  failure 
because  his  mother  had  suffered  a  heart  attack  18  months  before  the 
examination;  his  girlfriend  broke  up  with  him  about  six  months  before  the 
examination;  his  work  on  an  essay  for  a  contest  had  taken  too  much  time; 
his  makeup  examination  in  pharmacology  was  administered  just  before  the 
NBME  Part  I;  and  his  inadequate  preparation  caused  him  to  panic  during 
the  examination. 


REGENTS  OF  UNIVERSITY  OF  MICHIGAN  u  EWING        217 
214  Opinion  of  the  Court 

year,  Ewing  reappeared  before  the  Executive  Committee  on 
two  separate  occasions,  each  time  unsuccessfully  seeking 
readmission  to  the  Medical  School.  On  August  19,  1982,  he 
commenced  this  litigation  in  the  United  States  District  Court 
for  the  Eastern  District  of  Michigan. 

II 

E  wing's  complaint  against  the  Regents  of  the  University  of 
Michigan  asserted  a  right  to  retake  the  NBME  Part  I  test  on 
three  separate  theories,  two  predicated  on  state  law  and  one 
based  on  federal  law.3  As  a  matter  of  state  law,  he  alleged 
that  the  University's  action  constituted  a  breach  of  contract 
and  was  barred  by  the  doctrine  of  promissory  estoppel.  As  a 
matter  of  federal  law,  Ewing  alleged  that  he  had  a  property 
interest  in  his  continued  enrollment  in  the  Inteflex  program 
and  that  his  dismissal  was  arbitrary  and  capricious,  violat- 
ing his  "substantive  due  process  rights"  guaranteed  by  the 
Fourteenth  Amendment  and  entitling  him  to  relief  under  42 
U.  S.  C.  §  1983. 

The  District  Court  held  a  4-day  bench  trial  at  which  it  took 
evidence  on  the  University's  claim  that  Ewing's  dismissal 
was  justified  as  well  as  on  Ewing's  allegation  that  other 
University  of  Michigan  medical  students  who  had  failed  the 
NBME  Part  I  had  routinely  been  given  a  second  opportunity 
to  take  the  test.  The  District  Court  described  Ewing's  un- 
fortunate academic  history  in  some  detail.  Its  findings,  set 
forth  in  the  margin,4  reveal  that  Ewing  "encountered  imme- 

3  A  fourth  count  of  Ewing's  complaint  advanced  a  claim  for  damages 
under  42  U.  S.  C.   §  1983.      The  District  Court  held  that  the   Board  of 
Regents  is  a  state  instrumentality  immunized  from  liability  for  damages 
under  the  Eleventh  Amendment,   and  dismissed  this  count  of  the  com- 
plaint.     Ewing  v.  Board  of  Regents,  552  F.  Supp.  881  (ED  Mich.   1982). 

4  "In  the  fall  of  1975,  when  Ewing  enrolled  in  the  program,  he  encoun- 
tered immediate  difficulty  in  handling  the  work  and  he  did  not  take  the 
final  examination  in  Biology.     It  was  not  until  the  following  semester  that 
he  completed  this  course  and  received  a  C.     His  performance  in  his  other 
first  semester  courses  was  as  follows:  a  C  in  Chemistry  120,  a  C  in  his  writ- 
ing course,  and  an  incomplete  in  the  Freshman  Seminar.      In  the  next  se- 


218  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

diate  difficulty  in  handling  the  work,"  Ewing  v.  Board  of  Re- 
gents, 559  F.  Supp.  791,  793  (1983),  and  that  his  difficulties  — 
in  the  form  of  marginally  passing  grades  and  a  number  of 


mester  he  took  Chemistry  220,  a  Freshman  Seminar,  and  Psychology  504. 
He  received  a  B  in  the  Freshman  Seminar,  a  C  in  Chemistry  220,  but  he 
withdrew  from  Psychology  504.  He  was  advised  at  that  time  that  he  could 
not  take  the  Patient  Care  Course,  usually  given  during  the  fall  of  an 
Inteflex  student's  second  year,  and  he  was  placed  on  an  irregular  program. 
Because  of  these  difficulties,  at  the  July  14,  1976  meeting  of  the  Promotion 
and  Review  Board  he  requested  a  leave  of  absence,  and  when  this  was 
approved,  he  left  the  program. 

"During  the  summer  of  1976  while  on  leave,  he  took  two  Physics  courses 
at  Point  Loma  College  in  California.  He  reentered  the  Inteflex  program 
at  the  University  of  Michigan  in  the  winter  1977  term.  In  that  term  he 
repeated  Chemistry  220  in  which  he  received  an  A-.  In  the  spring  of 
1977,  he  passed  the  Introduction  to  the  Patient  Care  course. 

"In  the  1977-78  year,  he  completed  the  regular  Year  II  program.  But 
then  he  encountered  new  difficulty.  In  the  faU  of  1978  he  received  an 
incomplete  in  Clinical  Studies  400,  which  was  converted  to  a  Pass;  a  B  in 
Microbiology  420;  and  an  incomplete  in  Gross  Anatomy  507.  The  Gross 
Anatomy  incomplete  was  converted  to  a  C  —  by  a  make-up  examination. 
During  the  winter  of  1979  he  received  a  C  —  in  Genetics  505,  a  C  in  Microbi- 
ology 520,  an  E  in  Microanatomy  and  General  Pathology  506,  a  B  in  Cre- 
ative Writing,  and  a  Pass  in  Clinical  Studies  410.  He  appealed  the  Micro- 
anatomy  and  General  Pathology  grade,  requesting  a  change  from  an  E  to 
a  D,  and  a  make-up  exam  to  receive  a  Pass.  His  appeal  was  denied  by  the 
Grade  Appeal  Committee,  and  he  was  again  placed  on  an  irregular  pro- 
gram; he  took  only  the  Clinical  Studies  420  course  in  the  spring  1979 
semester. 

"In  July  1979,  Ewing  submitted  a  request  to  the  Promotion  and  Review 
Board  for  an  irregular  program  consisting  of  a  course  in  Pharmacology  in 
the  fall  and  winter  1979-80  and  a  course  in  Human  Illness  and  Neurosci- 
ence  in  1980-81,  thus  splitting  the  fourth  year  into  two  years.  The  Board 
denied  this  request  and  directed  him  to  take  the  fourth  year  curriculum  in 
one  academic  year.  He  undertook  to  do  so.  He  removed  his  deficiency  in 
Microanatomy  and  General  Pathology  506  by  repeating  the  course  during 
the  winter  1980  semester  and  received  a  C  4- .  In  the  spring  term  of  1980 
he  passed  Developmental  Anatomy  with  a  B  -  grade,  and  he  received  a  C 
grade  in  Neuroscience  I  509  after  a  reexamination.  In  the  fall  of  1980,  he 
received  a  passing  grade  in  Neuroscience  609  and  Pharmacology  626,  and 
in  the  winter  term  of  1981,  he  received  a  passing  grade  in  Clinical  Studies 


REGENTS  OF  UNIVERSITY  OF  MICHIGAN  u  EWING       219 
214  Opinion  of  the  Court 

incompletes  and  makeup  examinations,  many  experienced 
while  Ewing  was  on  a  reduced  course  load— persisted 
throughout  the  6-year  period  in  which  he  was  enrolled  in  the 
Inteflex  program. 

Ewing  discounted  the  importance  of  his  own  academic 
record  by  offering  evidence  that  other  students  with  even 
more  academic  deficiencies  were  uniformly  allowed  to  retake 
the  NBME  Part  I.  See  App.  107-111.  The  statistical  evi- 
dence indicated  that  of  the  32  standard  students  in  the  Medi- 
cal School  who  failed  Part  I  of  the  NBME  since  its  inception, 
all  32  were  permitted  to  retake  the  test,  10  were  allowed 
to  take  the  test  a  third  time,  and  1  a  fourth  time.  Seven 
students  in  the  Inteflex  program  were  allowed  to  retake  the 
test,  and  one  student  was  allowed  to  retake  it  twice.  Ewing 
is  the  only  student  who,  having  failed  the  test,  was  not  per- 
mitted to  retake  it.  Dr.  Robert  Reed,  a  former  Director 
of  the  Inteflex  program  and  a  member  of  the  Promotion  and 
Review  Board,  stated  that  students  were  "routinely"  given 
a  second  chance.  559  F.  Supp.,  at  794.  Accord,  App.  8, 
30,  39-40,  68,  73,  163.  Ewing  argued  that  a  promotional 
pamphlet  released  by  the  Medical  School  approximately  a 
week  before  the  examination  had  codified  this  practice.  The 
pamphlet,  entitled  "On  Becoming  a  Doctor,"  stated: 

"According  to  Dr.  Gibson,  everything  possible  is  done  to 
keep  qualified  medical  students  in  the  Medical  School. 
This  even  extends  to  taking  and  passing  National  Board 
Exams.  Should  a  student  fail  either  part  of  the  Na- 
tional Boards,  an  opportunity  is  provided  to  make  up  the 
failure  in  a  second  exam."  Id.,  at  113. 

The  District  Court  concluded  that  the  evidence  did  not 
support  either  Ewing's  contract  claim  or  his  promissory  es- 


510  and  a  deficiency  in  Pharmacology  627.     He  was  given  a  makeup  exami- 
nation in  this  course,  and  he  received  a  67.7  grade. 

"He  then  took  Part  I  of  the  NBME  .  .  .  ."     Ewing  v.  Board  of  Regents, 
559  F.  Supp.,  at  793-794. 


220  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

toppel  claim  under  governing  Michigan  law.  There  was  "no 
sufficient  evidence  to  conclude  that  the  defendants  bound 
themselves  either  expressly  or  by  a  course  of  conduct  to 
give  Ewing  a  second  chance  to  take  Part  I  of  the  NBME 
examination."  559  F.  Supp.,  at  800.  With  reference  to  the 
pamphlet  "On  Becoming  A  Doctor,"  the  District  Court  held 
that  "even  if  [Ewing]  had  learned  of  the  pamphlet's  contents 
before  he  took  the  examination,  and  I  find  that  he  did  not, 
I  would  not  conclude  that  this  amounted  either  to  an  unquali- 
fied promise  to  him  or  gave  him  a  contract  right  to  retake  the 
examination. "  Ibid. 

With  regard  to  Ewing's  federal  claim,  the  District  Court 
determined   that   Ewing  had   a   constitutionally   protected 
property  interest  in  his  continued  enrollment  in  the  Inteflex 
program  and  that  a  state  university's  academic  decisions  con- 
cerning the  qualifications  of  a  medical  student  are  "subject 
to  substantive  due  process  review"  in  federal  court.      Id., 
at  798.     The  District  Court,  however,  found  no  violation  of 
Ewing's  due  process  rights.     The  trial  record,  it  emphasized, 
was  devoid  of  any  indication  that  the  University's  decision 
was  "based  on  bad  faith,  ill  will  or  other  impermissible  ulte- 
rior motives";  to  the  contrary,  the  "evidence  demonstrate [d] 
that  the  decision  to  dismiss  plaintiff  was  reached  in  a  fair  and 
impartial  manner,  and  only  after  careful  and  deliberate  con- 
sideration."    Id.,  at  799.     To  "leave  no  conjecture"  as  to  his 
decision,  the  District  Judge  expressly  found  that  "the  evi- 
dence demonstrate^]  no  arbitrary  or  capricious  action  since 
[the  Regents]  had  good  reason  to  dismiss  Ewing  from  the 
program."     Id.,  at  800. 

Without  reaching  the  state-law  breach-of-contract  and 
promissory-estoppel  claims,5  the  Court  of  Appeals  reversed 
the  dismissal  of  Ewing's  federal  constitutional  claim.  The 

5  In  a  footnote,  the  Court  of  Appeals  stated:  "Because  we  believe  this 
case  can  be  disposed  of  on  the  Section  1983  claim,  this  Court  does  not 
expressly  reach  the  breach  of  contract  or  promissory  estoppel  claims." 
Ewvng  v.  Board  of  Regents,  742  F.  2d  913,  914,  n.  2  (CA6  1984). 


REGENTS  OF  UNIVERSITY  OF  MICHIGAN  v.  EWING        221 
214  Opinion  of  the  Court 

Court  of  Appeals  agreed  with  the  District  Court  that  Ewing's 
implied  contract  right  to  continued  enrollment  free  from  arbi- 
trary interference  qualified  as  a  property  interest  protected 
by  the  Due  Process  Clause,  but  it  concluded  that  the  Uni- 
versity had  arbitrarily  deprived  him  of  that  property  in  viola- 
tion of  the  Fourteenth  Amendment  because  (1)  "Ewing  was  a 
'qualified'  student,  as  the  University  defined  that  term,  at 
the  time  he  sat  for  NBME  Part  I";  (2)  "it  was  the  consistent 
practice  of  the  University  of  Michigan  to  allow  a  qualified 
medical  student  who  initially  failed  the  NBME  Part  I  an 
opportunity  for  a  retest";  and  (3)  "Ewing  was  the  only  Uni- 
versity of  Michigan  medical  student  who  initially  failed  the 
NBME  Part  I  between  1975  and  1982,  and  was  not  allowed  an 
opportunity  for  a  retest."  Ewing  v.  Board  of  Regents,  742 
F.  2d  913,  916  (CA6  1984).  The  Court  of  Appeals  therefore 
directed  the  University  to  allow  Ewing  to  retake  the  NBME 
Part  I,  and  if  he  should  pass,  to  reinstate  him  in  the  Inteflex 
program. 

We  granted  the  University's  petition  for  certiorari  to  con- 
sider whether  the  Court  of  Appeals  had  misapplied  the  doc- 
trine of  "substantive  due  process."6  470  U.  S.  1083  (1985). 
We  now  reverse. 


6  The  University's  petition  for  certiorari  also  presented  the  question 
whether  the  Eleventh  Amendment  constituted  a  complete  bar  to  the  action 
because  it  was  brought  against  the  "Board  of  Regents  of  the  University  of 
Michigan,"  App.  13,  a  body  corporate.  Cf.  Florida  Dept.  of  Health  v. 
Florida  Nursing  Home  Assn.,  450  U.  S.  147  (1981)  (per  curiam);  Ala- 
bama v.  Pugh,  438  U.  S.  781  (1978)  (per  curiam).  After  the  petition  was 
granted,  however,  respondent  Ewing  filed  a  motion  to  amend  the  com- 
plaint by  joining  the  individual  members  of  the  Board  of  Regents  as  named 
defendants  in  their  official  capacities.  The  University  did  not  oppose  that 
motion.  Tr.  of  Oral  Arg.  12-13. 

Granting  the  motion  merely  conforms  the  pleadings  to  the  "course  of  pro- 
ceedings" in  the  District  Court.  Cf.  Kentucky  v.  Graham,  473  U.  S.  159, 
167,  n.  14  (1985);  Brandon  v.  Holt,  469  U.  S.  464,  469  (1985).  The 
record  reveals  that  the  Regents  frequently  referred  to  themselves  in  the 
plural,  as  "defendants,"  indicating  that  they  understood  the  suit  to  be 
against  them  individually,  in  their  official  capacities,  rather  than  against 


222  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Ill 

In  Board  of  Curators,  Univ.  of  Mo.  v.  Horowitz,  435  U.  S. 
78,  91-92  (1978),  we  assumed,  without  deciding,  that  federal 
courts  can  review  an  academic  decision  of  a  public  educational 
institution  under  a  substantive  due  process  standard.  In 
this  case  Ewing  contends  that  such  review  is  appropriate 
because  he  had  a  constitutionally  protected  property  interest 
in  his  continued  enrollment  in  the  Inteflex  program.7  But 
remembering  Justice  Brandeis'  admonition  not  to  "  'formulate 
a  rule  of  constitutional  law  broader  than  is  required  by  the 
precise  facts  to  which  it  is  to  be  applied/"  Ashwander  v. 
TVA,  297  U.  S.  288,  347  (1936)  (concurring  opinion),  we 
again  conclude,  as  we  did  in  Horowitz,  that  the  precise  facts 
disclosed  by  the  record  afford  the  most  appropriate  basis  for 


the  Board  as  a  corporate  entity.  App.  11.  Likewise,  the  District  Court 
held  that  "defendants  did  not  act  in  violation  of  Ewing's  due  process 
rights,"  559  F.  Supp.,  at  799,  and  accordingly  found  "in  favor  of  the  defend- 
ants," id.,  at  800.  We  consequently  grant  the  motion,  thereby  allowing 
Ewing  to  name  as  defendants  the  individual  members  of  the  Board  of  Re- 
gents in  their  official  capacities.  See  Patsy  v.  Florida  Board  of  Regents, 
457  U.  S.  496,  516,  n.  19  (1982).  Given  our  resolution  of  the  case,  we  need 
not  consider  the  question  whether  the  relief  sought  by  Ewing  would  be 
available  under  Eleventh  Amendment  principles. 

7  Ewing  and  the  courts  below  reasoned  as  follows:  In  Board  of  Regents 
v.  Roth,  408  U.  S.  564,  577  (1972),  this  Court  held  that  property  interests 
protected  by  due  process  are  "defined  by  existing  rules  or  understand- 
ings that  stem  from  an  independent  source  such  as  state  law."  See  Goss 
v.  Lopez,  419  U.  S.  565,  572-573  (1975).  In  a  companion  case,  Perry  v. 
Sindermann,  408  U.  S.  593,  601-602  (1972),  we  held  that  "agreements  im- 
plied from  the  promisor's  words  and  conduct  in  the  light  of  the  surrounding 
circumstances'"  could  be  independent  sources  of  property  interests.  See 
Bishop  v.  Wood,  426  U.  S.  341,  344  (1976)  (implied  contracts).  According 
to  an  antiquated  race  discrimination  decision  of  the  Michigan  Supreme 
Court  (whose  principal  holding  has  since  been  overtaken  by  events),  "when 
one  is  admitted  to  a  college,  there  is  an  implied  understanding  that  he  shall 
not  be  arbitrarily  dismissed  therefrom."  Booker  v.  Grand  Rapids  Medi- 
cal College,  156  Mich.  95,  99-100,  120  N.  W.  589,  591  (1909).  From  the 
foregoing,  Ewing  would  have  us  conclude  that  he  had  a  protectible  prop- 
erty interest  in  continued  enrollment  in  the  Inteflex  program. 


REGENTS  OF  UNIVERSITY  OF  MICHIGAN  u  EWING       223 
214  Opinion  of  the  Court 

decision.  We  therefore  accept  the  University's  invitation  to 
"assume  the  existence  of  a  constitutionally  protectible  prop- 
erty right  in  [Swing's]  continued  enrollment,"8  and  hold  that 
even  if  E  wing's  assumed  property  interest  gave  rise  to  a  sub- 
stantive right  under  the  Due  Process  Clause  to  continued  en- 
rollment free  from  arbitrary  state  action,  the  facts  of  record 
disclose  no  such  action. 

As  a  preliminary  matter,  it  must  be  noted  that  any  sub- 
stantive constitutional  protection  against  arbitrary  dismissal 
would  not  necessarily  give  Ewing  a  right  to  retake  the 
NBME  Part  I.  The  constitutionally  protected  interest  al- 
leged by  Ewing  in  his  complaint,  App.  15,  and  found  by  the 
courts  below,  derives  from  Swing's  implied  contract  right  to 
continued  enrollment  free  from  arbitrary  dismissal.  The 
District  Court  did  not  find  that  Ewing  had  any  separate  right 
to  retake  the  exam  and,  what  is  more,  explicitly  "reject[ed] 
the  contract  and  promissory  estoppel  claims,  finding  no  suffi- 
cient evidence  to  conclude  that  the  defendants  bound  them- 
selves either  expressly  or  by  a  course  of  conduct  to  give 
Ewing  a  second  chance  to  take  Part  I  of  the  NBME  examina- 
tion." 559  F.  Supp.,  at  800.  The  Court  of  Appeals  did  not 
overturn  the  District  Court's  determination  that  Ewing 
lacked  a  tenable  contract  or  estoppel  claim  under  Michigan 
law,9  see  supra,  at  220,  and  n.  5,  and  we  accept  its  reason- 


8Tr.  of  Oral  Arg.  3.  Consistent  with  this  suggestion,  petitioner's  an- 
swer to  Ewing's  complaint  "admit[ted]  that,  under  Michigan  law,  [Ewing] 
may  have  enjoyed  a  property  right  and  interest  in  his  continued  enrollment 
in  the  Inteflex  Program."  App.  21. 

9  Although  there  is  some  ambiguity  in  its  opinion,  we  understand  the 
Court  of  Appeals  to  have  found  "clearly  erroneous"  the  District  Court's  re- 
jection of  Ewing's  federal  substantive  due  process  claim  solely  because  of 
the  "undisputed  evidence  of  a  consistent  pattern  of  conduct"— namely,  the 
"substantial  and  uncontroverted  evidence  in  the  trial  record  that  at  the 
time  Ewing  took  the  NBME  Part  I,  medical  students  were  routinely  given 
a  second  opportunity  to  pass  it. "  742  F.  2d,  at  915.  The  Court  of  Appeals 
found  no  "rule"  to  the  effect  that  medical  students  are  entitled  to  retake 
failed  examinations.  Indeed,  it  relied  on  the  University's  "promotional 


224  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

able  rendering  of  state  law,  particularly  when  no  party  has 
challenged  it.10 

The  University's  refusal  to  allow  Ewing  to  retake  the 
NBME  Part  I  is  thus  not  actionable  in  itself.  It  is,  however, 
an  important  element  of  Swing's  claim  that  his  dismissal  was 
the  product  of  arbitrary  state  action,  for  under  proper  analy- 
sis the  refusal  may  constitute  evidence  of  arbitrariness  even 

pamphlet  entitled  'On  Becoming  a  Doctor* "  only  to  the  extent  that  it  "me- 
morialized the  consistent  practice  of  the  medical  school  with  respect  to  stu- 
dents who  initially  fail  that  examination."     Id.,  at  916  (emphasis  added). 
A  property  interest  in  a  second  examination,  however,  cannot  be  in- 
ferred from  a  consistent  practice  without  some  basis  in  state  law.     Yet  in 
this  case  the  Court  of  Appeals  did  not  reverse  the  District  Court's  finding 
that  Ewing  was  not  even  aware  of  the  contents  of  the  pamphlet  and  left 
standing  its  holding  that  the  statements  in  this  promotional  tract  did  not 
"amoun[t]  either  to  an  unqualified  promise  to  him  or  ...  a  contract  right 
to  retake  the  examination"  under  state  law.     559  F.  Supp.,  at  800.     We 
recognize,  of  course,  that  "mutually  explicit  understandings"  may  operate 
to  create  property  interests.      Perry  v.  Sindermann,  408  U.  S.,  at  601. 
But  such  understandings  or  tacit  agreements  must  support  "a  legitimate 
claim  of  entitlement"  under  "  'an  independent  source  such  as  state  law 
....'"     Id.,  at  602,  n.  7  (quoting  Board  of  Regents  v.  Roth,  408  U.  S., 
at  577).     The  District  Court,  it  bears  emphasis,  held  that  the  University's 
liberal  retestmg  custom  gave  rise  to  no  state-law  entitlement  to  retake  the 
NBME  Part  I.     We  rejected  an  argument  similar  to  Ewing's  in  Board  of 
Regents  v.  Roth.     In  that  case  Dr.  Roth  asserted  a  property  interest  in 
continued  employment  by  virtue  of  the  fact  that  "of  four  hundred  forty-two 
non-tenured  professors,  four  were  not  renewed  during  [a  particular]  aca- 
demic year."     Brief  for  Respondent  in  Board  of  Regents  v.  Roth,  O.  T. 
1971,  No.  71-162,  p.  28  (footnote  and  citation  omitted).      Absent  a  state 
statute  or  university  rule  or  "anything  approaching  a  'common  law'  of  re- 
employment,"  however,  we  held  that  Dr.  Roth  had  no  property  interest  in 
the  renewal  of  his  teaching  contract.     Board  of  Regents  v.  Roth,  408  U.  S. , 
at  578,  n.  16. 

10  "In  dealing  with  issues  of  state  law  that  enter  into  judgments  of  fed- 
eral courts,  we  are  hesitant  to  overrule  decisions  by  federal  courts  skilled 
in  the  law  of  particular  states  unless  their  conclusions  are  shown  to  be  un- 
reasonable." Propperv.  Clark,  337  U.  S.  472,  486-487  (1949).  Accord, 
Hanng  v.  Prosise,  462  U.  S.  306,  314,  n.  8  (1983);  Leroy  v.  Great  Western 
United  Corp.,  443  U.  S.  173,  181,  n.  11  (1979);  Butner  v.  United  States, 
440  U.  S.  48,  58  (1979);  Bishop  v.  Wood,  426  U.  S.,  at  345-347. 


REGENTS  OF  UNIVERSITY  OF  MICHIGAN  v.  EWING       225 
214  Opinion  of  the  Court 

if  it  is  not  the  actual  legal  wrong  alleged.  The  question, 
then,  is  whether  the  record  compels  the  conclusion  that  the 
University  acted  arbitrarily  in  dropping  Ewing  from  the 
Inteflex  program  without  permitting  a  reexamination. 

It  is  important  to  remember  that  this  is  not  a  case  in  which 
the  procedures  used  by  the  University  were  unfair  in  any 
respect;  quite  the  contrary  is  true.  Nor  can  the  Regents 
be  accused  of  concealing  nonacademic  or  constitutionally  im- 
permissible reasons  for  expelling  Ewing;  the  District  Court 
found  that  the  Regents  acted  in  good  faith. 

Ewing's  claim,  therefore,  must  be  that  the  University  mis- 
judged his  fitness  to  remain  a  student  in  the  Inteflex  pro- 
gram. The  record  unmistakably  demonstrates,  however, 
that  the  faculty's  decision  was  made  conscientiously  and  with 
careful  deliberation,  based  on  an  evaluation  of  the  entirety  of 
Ewing's  academic  career.  When  judges  are  asked  to  review 
the  substance  of  a  genuinely  academic  decision,  such  as  this 
one,  they  should  show  great  respect  for  the  faculty's  profes- 
sional judgment.11  Plainly,  they  may  not  override  it  unless 
it  is  such  a  substantial  departure  from  accepted  academic 
norms  as  to  demonstrate  that  the  person  or  committee  re- 
sponsible did  not  actually  exercise  professional  judgment. 
Cf.  Youngberg  v.  Romeo,  457  U.  S.  307,  323  (1982). 

Considerations  of  profound  importance  counsel  restrained 
judicial  review  of  the  substance  of  academic  decisions.  As 
JUSTICE  WHITE  has  explained: 

"Although  the  Court  regularly  proceeds  on  the  as- 
sumption that  the  Due  Process  Clause  has  more  than  a 
procedural  dimension,  we  must  always  bear  in  mind  that 
the  substantive  content  of  the  Clause  is  suggested  nei- 
ther by  its  language  nor  by  preconstitutional  history; 

11  "University  faculties  must  have  the  widest  range  of  discretion  in  mak- 
ing judgments  as  to  the  academic  performance  of  students  and  their  enti- 
tlement to  promotion  or  graduation."  Board  of  Curators,  Umv  of  Mo.  v. 
Horowitz,  435  U.  S.  78,  96,  n.  6  (1978)  (POWELL,  J.,  concurring).  See  id  , 
at  90-92  (opinion  of  the  Court). 


226  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

that  content  is  nothing  more  than  the  accumulated  prod- 
uct of  judicial  interpretation  of  the  Fifth  and  Fourteenth 
Amendments.  This  is  ...  only  to  underline  Mr.  Justice 
Black's  constant  reminder  to  his  colleagues  that  the 
Court  has  no  license  to  invalidate  legislation  which  it 
thinks  merely  arbitrary  or  unreasonable."  Moore  v. 
East  Cleveland,  431  U.  S.  494,  543-544  (1977)  (WHITE, 
J.,  dissenting). 

See  id.,  at  502  (opinion  of  POWELL,  J.).  Added  to  our  con- 
cern for  lack  of  standards  is  a  reluctance  to  trench  on  the  pre- 
rogatives of  state  and  local  educational  institutions  and  our 
responsibility  to  safeguard  their  academic  freedom,  "a  special 
concern  of  the  First  Amendment."  Keyishian  v.  Board  of 
Regents,  385  U.  S.  589,  603  (1967). 12  If  a  "federal  court  is 
not  the  appropriate  forum  in  which  to  review  the  multitude  of 
personnel  decisions  that  are  made  daily  by  public  agencies," 
Bishop  v.  Wood,  426  U.  S.  341,  349  (1976),  far  less  is  it  suited 
to  evaluate  the  substance  of  the  multitude  of  academic  deci- 
sions that  are  made  daily  by  faculty  members  of  public  educa- 
tional institutions— decisions  that  require  "an  expert  evalua- 
tion of  cumulative  information  and  [are]  not  readily  adapted 
to  the  procedural  tools  of  judicial  or  administrative  decision- 
making."  Board  of  Curators,  Univ.  of  Mo.  v.  Horowitz,  435 
U.  S.,  at  89-90. 


12  Academic  freedom  thrives  not  only  on  the  independent  and  uninhibited 
exchange  of  ideas  among  teachers  and  students,  see  Keyishian  v.  Board  of 
Regents,  385  U.  S.,  at  603;  Sweezy  v.  New  Hampshire,  354  U.  S.  234,  250 
(1957)  (opinion  of  Warren,  C.  J.),  but  also,  and  somewhat  inconsistently, 
on  autonomous  decisionmaking  by  the  academy  itself,  see  University  of 
California  Regents  v.  Bakke,  438  U.  S.  265,  312  (1978)  (opinion  of  POW- 
ELL, J.);  Sweezy  v.  New  Hampshire,  354  U.  S.,  at  263  (Frankfurter,  J., 
concurring  in  result).  Discretion  to  determine,  on  academic  grounds,  who 
may  be  admitted  to  study,  has  been  described  as  one  of  "the  four  essential 
freedoms"  of  a  university.  University  of  California  Regents  v.  Bakke, 
438  U.  S.,  at  312  (opinion  of  POWELL,  J.)  (quoting  Sweezy  v.  New  Hamp- 
shire, supra,  at  263  (Frankfurter,  J. ,  concurring  in  result))  (internal  quota- 
tions omitted). 


REGENTS  OF  UNIVERSITY  OF  MICHIGAN  v.  EWING       227 
214  Opinion  of  the  Court 

This  narrow  avenue  for  judicial  review  precludes  any  con- 
clusion that  the  decision  to  dismiss  Ewing  from  the  Inteflex 
program  was  such  a  substantial  departure  from  accepted  aca- 
demic norms  as  to  demonstrate  that  the  faculty  did  not 
exercise  professional  judgment.  Certainly  his  expulsion 
cannot  be  considered  aberrant  when  viewed  in  isolation. 
The  District  Court  found  as  a  fact  that  the  Regents  "had  good 
reason  to  dismiss  Ewing  from  the  program."  559  F.  Supp., 
at  800.  Before  failing  the  NBME  Part  I,  Ewing  accumu- 
lated an  unenviable  academic  record  characterized  by  low 
grades,  seven  incompletes,  and  several  terms  during  which 
he  was  on  an  irregular  or  reduced  course  load.  Swing's 
failure  of  his  medical  boards,  in  the  words  of  one  of  his 
professors,  "merely  culminate[d]  a  series  of  deficiencies.  .  .  . 
In  many  ways,  it's  the  straw  that  broke  the  camel's  back." 
App.  79.  Accord,  id.,  at  7,  54-55,  72-73. 13  Moreover, 
the  fact  that  Ewing  was  "qualified"  in  the  sense  that  he  was 
eligible  to  take  the  examination  the  first  time  does  not 
weaken  this  conclusion,  for  after  Ewing  took  the  NBME  Part 
I  it  was  entirely  reasonable  for  the  faculty  to  reexamine 
his  entire  record  in  the  light  of  the  unfortunate  results  of 
that  examination.  Admittedly,  it  may  well  have  been  un- 
wise to  deny  Ewing  a  second  chance.  Permission  to  retake 
the  test  might  have  saved  the  University  the  expense  of 
this  litigation  and  conceivably  might  have  demonstrated  that 
the  members  of  the  Promotion  and  Review  Board  misjudged 
Ewing's  fitness  for  the  medical  profession.  But  it  never- 
theless remains  true  that  his  dismissal  from  the  Inteflex 
program  rested  on  an  academic  judgment  that  is  not  beyond 

13  Even  viewing  the  case  from  E wing's  perspective,  we  cannot  say  that 
the  explanations  and  extenuating  circumstances  he  offered  were  so  compel- 
ling that  their  rejection  can  fairly  be  described  as  irrational.  For  example, 
the  University  might  well  have  concluded  that  Ewing's  sensitivity  to  diffi- 
culties in  his  personal  life  suggested  an  inability  to  handle  the  stress  inher- 
ent in  a  career  in  medicine.  The  inordinate  amount  of  time  Ewing  devoted 
to  his  extracurricular  essay  writing  may  reasonably  have  revealed  to  the 
University  a  lack  of  judgment  and  an  inability  to  set  priorities. 


228  OCTOBER  TERM,  1985 

POWELL,  J.,  concurring  474  U.  S. 

the  pale  of  reasoned  academic  decisionmaking  when  viewed 
against  the  background  of  his  entire  career  at  the  University 
of  Michigan,  including  his  singularly  low  score  on  the  NBME 
Part  I  examination.14 

The  judgment  of  the  Court  of  Appeals  is  reversed,  and 
the  case  is  remanded  for  proceedings  consistent  with  this 
opinion. 

It  is  so  ordered. 

JUSTICE  POWELL,  concurring. 

Although  I  join  the  Court's  opinion  holding  that  respondent 
presents  no  violation  of  the  substantive  due  process  right 
that  he  asserts,  I  think  it  unnecessary  to  assume  the  exist- 
ence of  such  a  right  on  the  facts  of  this  case.  Respondent 
alleges  that  he  had  a  property  interest  in  his  continued  enroll- 

14  Nor  does  the  University's  termination  of  Ewing  substantially  deviate 
from  accepted  academic  norms  when  compared  with  its  treatment  of  other 
students.     To  be  sure,  the  University  routinely  gave  others  an  opportu- 
nity to  retake  the  NBME  Part  I.     But  despite  tables  recording  that  some 
students  with  more  incompletes  or  low  grades  were  permitted  to  retake 
the  examination  after  failing  it  the  first  time,  App.  105-111,  and  charts  in- 
dicating that  these  students  lacked  the  outside  research  and  honor  grade  in 
clinical  work  that  Ewing  received,  id. ,  at  119-120,  we  are  not  in  a  position 
to  say  that  these  students  were  "similarly  situated"  with  Ewing.     The  Pro- 
motion and  Review  Board  presumably  considered  not  only  the  raw  statisti- 
cal data  but  also  the  nature  and  seriousness  of  the  individual  deficiencies 
and  their  concentration  in  particular  disciplines  —in  E wing's  case,  the  hard 
sciences.     The  Board  was  able  to  take  into  account  the  numerous  incom- 
pletes and  makeup  examinations  Ewing  required  to  secure  even  marginally 
passing  grades,  and  it  could  view  them  in  connection  with  his  reduced 
course  loads.     Finally,  it  was  uniquely  positioned  to  observe  Ewing's  judg- 
ment, self-discipline,  and  ability  to  handle  stress,  and  was  thus  especially 
well  situated  to  make  the  necessarily  subjective  judgment  of  Ewing's  pros- 
pects for  success  in  the  medical  profession.     The  insusceptibility  of  promo- 
tion decisions  such  as  this  one  to  rigorous  judicial  review  is  borne  out  by 
the  fact  that  19  other  Inteflex  students,  some  with  records  that  a  judge 
might  find  "better"  than  Ewing's,  were  dismissed  by  the  faculty  without 
even  being  allowed  to  take  the  NBME  Part  I  a  first  time.     Id. ,  at  165-166. 
Cf.  id.,  at  66  (nine  Inteflex  students  terminated  after  suffering  one  defi- 
ciency and  failing  one  course  after  warning). 


REGENTS  OF  UNIVERSITY  OF  MICHIGAN  v.  EWING       229 
214  POWELL,  J.,  concurring 

ment  in  the  University's  Inteflex  program,  and  that  his  dis- 
missal was  arbitrary  and  capricious.  The  dismissal  allegedly 
violated  his  substantive  due  process  rights  guaranteed  by  the 
Fourteenth  Amendment,  providing  the  basis  for  his  claim 
under  42  U.  S.  C.  §  1983. 

I 

As  the  Court  correctly  points  out,  respondent's  claim  to 
a  property  right  is  dubious  at  best.  Ante,  at  222,  n.  7. 
Even  if  one  assumes  the  existence  of  a  property  right, 
however,  not  every  such  right  is  entitled  to  the  protection 
of  substantive  due  process.  While  property  interests  are 
protected  by  procedural  due  process  even  though  the  interest 
is  derived  from  state  law  rather  than  the  Constitution,  Board 
of  Regents  v.  Roth,  408  U.  S.  564,  577  (1972),  substantive  due 
process  rights  are  created  only  by  the  Constitution. 

The  history  of  substantive  due  process  "counsels  caution 
and  restraint."  Moore  v.  East  Cleveland,  431  U.  S.  494,  502 
(1977)  (opinion  of  POWELL,  J. ,  for  a  plurality).  The  deter- 
mination that  a  substantive  due  process  right  exists  is  a 
judgment  that  "  'certain  interests  require  particularly  careful 
scrutiny  of  the  state  needs  asserted  to  justify  their  abridg- 
ment.'" Ibid.,  quoting  Poe  v.  Ullman,  367  U.  S.  497,  543 
(1961)  (Harlan,  J.,  dissenting).  In  the  context  of  liberty  in- 
terests, this  Court  has  been  careful  to  examine  each  asserted 
interest  to  determine  whether  it  "merits"  the  protection  of 
substantive  due  process.  See,  e.  g.,  East  Cleveland,  supra; 
Roe  v.  Wade,  410  U.  S.  113  (1973);  Griswold  v.  Connecticut, 
381  U.  S.  479  (1965).  "Each  new  claim  to  [substantive  due 
process]  protection  must  be  considered  against  a  background 
of  Constitutional  purposes,  as  they  have  been  rationally 
perceived  and  historically  developed."  Poe,  supra,  at  544 
(Harlan,  J. ,  dissenting). 

The  interest  asserted  by  respondent  —an  interest  in  contin- 
ued enrollment  from  which  he  derives  a  right  to  retake  the 
NBME— is  essentially  a  state-law  contract  right.  It  bears 
little  resemblance  to  the  fundamental  interests  that  previ- 


230  OCTOBER  TERM,  1985 

POWELL,  J.,  concurring  474  U.  S. 

ously  have  been  viewed  as  implicitly  protected  by  the  Con- 
stitution. It  certainly  is  not  closely  tied  to  "respect  for  the 
teachings  of  history,  solid  recognition  of  the  basic  values  that 
underlie  our  society,  and  wise  appreciation  of  the  great  roles 
that  the  doctrines  of  federalism  and  separation  of  powers 
have  played  in  establishing  and  preserving  American  free- 
doms," Griswold,  supra,  at  501  (Harlan,  J.,  concurring  in 
judgment).  For  these  reasons,  briefly  summarized,  I  do  not 
think  the  fact  that  Michigan  may  have  labeled  this  interest 
"property"  entitles  it  to  join  those  other,  far  more  important 
interests  that  have  heretofore  been  accorded  the  protection 
of  substantive  due  process.  Cf.  Harrah  Independent  School 
District  v.  Martin,  440  U.  S.  194  (1979). 

II 

I  agree  fully  with  the  Court's  emphasis  on  the  respect  and 
deference  that  courts  should  accord  academic  decisions  made 
by  the  appropriate  university  authorities.  In  view  of 
Ewing's  academic  record  that  the  Court  charitably  character- 
izes as  "unfortunate,"  this  is  a  case  that  never  should  have 
been  litigated.  After  a  4-day  trial  in  a  District  Court,  the 
case  was  reviewed  by  the  Court  of  Appeals  for  the  Sixth 
Circuit,  and  now  is  the  subject  of  a  decision  of  the  United 
States  Supreme  Court.  Judicial  review  of  academic  deci- 
sions, including  those  with  respect  to  the  admission  or 
dismissal  of  students,  is  rarely  appropriate,  particularly 
where  orderly  administrative  procedures  are  followed— as  in 
this  case.* 


*See  Board  of  Curators,  Univ.  of  Mo.  v.  Horowitz,  435  U.  S.  78,  96, 
n.  6  (1978)  (opinion  of  POWELL,  J.),  cited  ante,  at  225,  n.  11.  See  also 
University  of  California  Regents  v.  Bakke,  438  U.  S.  265,  312  (1978)  (opin- 
ion of  POWELL,  J.)  ("Academic  freedom,  though  not  a  specifically  enu- 
merated constitutional  right,  long  has  been  viewed  as  a  special  concern 
of  the  First  Amendment");  Keyishian  v.  Board  of  Regents  385  U  S  589, 
603  (1967). 


UNITED  STATES  u  ROJAS-CONTRERAS  231 

Syllabus 

UNITED  STATES  v.  ROJAS-CONTRERAS 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  NINTH  CIRCUIT 

No.  84-1023.     Argued  October  9,  1985— Decided  December  16,  1985 

Respondent  was  indicted  by  a  federal  grand  jury  on  February  18,  1983,  for 
felony  illegal  entry  into  the  United  States  and  reentry  by  a  deported 
alien,  he  having  been  previously  convicted  for  illegal  entry  "on  or  about 
December  17,  1981."  Appearing  through  counsel  on  February  18,  1983, 
respondent  was  arraigned,  and  the  trial  was  set  for  April  19,  1983. 
When  it  was  noticed  that  the  date  of  the  previous  conviction  was  actually 
December  7,  1981,  the  grand  jury,  on  April  15,  1983,  returned  a  super- 
seding indictment  identical  to  the  original  except  that  it  corrected  the 
date  of  the  previous  conviction.  Respondent  then  moved  for  a  30-day 
continuance  of  the  trial,  contending  that  18  U.  S.  C.  §3161(c)(2)— which 
provides  that  a  trial  shall  not  commence  less  than  30  days  "from  the  date 
on  which  the  defendant  first  appears  through  counsel" — required  a  new 
30-day  trial  preparation  period  following  the  return  of  the  superseding 
indictment.  The  District  Court  denied  the  motion,  and  respondent  was 
convicted.  The  Court  of  Appeals  reversed,  holding  that  respondent  was 
entitled  to  the  new  30-day  trial  preparation  period. 

Held:  The  Speedy  Trial  Act,  of  which  §  3161(c)(2)  is  a  part,  does  not  re- 
quire that  the  30-day  preparation  period  be  restarted  upon  the  filing  of  a 
superseding  indictment.  Pp.  234-237. 

(a)  That  this  was  Congress'  intention  is  evident  from  the  unambiguous 
language  of  §  3161(c)(2)  that  clearly  fixes  the  beginning  point  for  the  trial 
preparation  period  as  the  first  appearance  through  counsel,  and  does  not 
refer  to  the  date  of  the  indictment,  much  less  the  date  of  any  superseding 
indictment.      This  conclusion  is  further  supported  by  the  language  of 
§3161(c)(l),  which  establishes  the  outside  time  limit  within  which  a  trial 
must  commence  and  explicitly  refers  to  the  date  of  indictment  as  one  of 
the  relevant  dates  for  determining  that  time  limit.     Pp.  234-235. 

(b)  The  requirements  of  §  3161(c)(2)  were  met  here,  where  the  time 
between  the  date  of  respondent's  first  appearance  through  counsel  and 
the  date  of  the  trial  afforded  a  trial  preparation  period  twice  as  long  as 
the  minimum  required  by  §3161(c)(2).      P.  236. 

(c)  Respondent  was  clearly  not  prejudiced  by  the  return  of  the  super- 
seding indictment,  which  did  nothing  except  correct  the  date  of  the  pre- 
vious conviction.      Pp.  236-237. 

730  F.  2d  771,  reversed. 


232  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

BURGER,  C.  J.,  delivered  the  opinion  of  the  Court,  in  which  WHITE, 
MARSHALL,  POWELL,  REHNQUIST,  STEVENS,  and  O'CONNOR,  JJ.,  joined. 
BLACKMUN,  J.,  filed  an  opinion  concurring  in  the  judgment,  in  which 
BRENNAN,  J.,  joined,  post,  p.  237. 

Patty  Merkamp  Stemler  argued  the  cause  for  the  United 
States.  With  her  on  the  briefs  were  former  Solicitor  Gen- 
eral Lee,  Acting  Solicitor  General  Fried,  Assistant  Attorney 
General  Trott,  Deputy  Solicitor  General  Frey,  and  Joshua  I. 
Schwartz. 

Judy  Clarke,  by  appointment  of  the  Court,  470  U.  S.  1048, 
argued  the  cause  and  filed  a  brief  for  respondent. 

CHIEF  JUSTICE  BURGER  delivered  the  opinion  of  the 
Court. 

We  granted  certiorari  to  resolve  a  conflict  in  the  Circuits l 
as  to  whether  (a)  the  Speedy  Trial  Act  of  1974,  18  U.  S.  C. 
§  3161  et  seq.,  as  amended,  prohibits  commencement  of  a  trial 
less  than  30  days  after  arraignment  on  a  superseding  indict- 
ment; and  (b)  assuming  a  violation  of  the  Speedy  Trial  Act  in 
this  case,  was  that  error  harmless? 

I 

On  December  7,  1981,  respondent,  who  is  not  a  citizen 
of  the  United  States,  was  convicted  of  illegal  entry  into 
this  country  and  was  sentenced  to  one  year's  imprisonment. 
After  serving  his  sentence,  respondent  returned  to  Mexico. 

Again,  on  February  13,  1983,  he  entered  the  United  States 
illegally  and  was  apprehended  by  United  States  Border 

1  Compare  United  States  v.  Guzman,  754  F.  2d  482  (CA2  1985),  cert, 
pending,  No.  84-1604;  United  States  v.  Rush,  738  F.  2d  497  (CA1  1984), 
cert,  denied,  470  U.  S.  1004  (1985);  United  States  v.  Williford,  No.  83- 
1376  (CA5,  Feb.  27,  1984)  (unpublished  opinion),  cert,  denied,  469  U.  S. 
893  (1984);  United  States  v.  Horton,  676  F.  2d  1165  (CA7  1982),  cert, 
denied,  459  U.  S.  1201  (1983);  and  United  States  v.  Todisco,  667  F.  2d 
255  (CA2  1981),  cert,  denied,  455  U.  S.  906  (1982),  with  United  States 
v.  Rojas-Contreras,  No.  83-5089  (CA9,  Mar.  2,  1984)  (case  below;  unpub- 
lished opinion).  See  also  United  States  v.  Feldman,  761  F.  2d  380  (CA7 
1985). 


UNITED  STATES  u  ROJAS-CONTRERAS  233 

231  Opinion  of  the  Court 

Patrol  agents.  On  February  18,  1983,  a  federal  grand  jury 
sitting  in  the  Southern  District  of  California  returned  a 
two-count  indictment  charging  respondent  with  felony  illegal 
entry  under  8  U.  S.  C.  §  1325  and  with  reentry  by  a  deported 
alien  under  8  U.  S.  C.  §  1326.  The  indictment  stated  that 
the  judgment  of  conviction  for  the  prior  illegal  entry,  which 
formed  the  predicate  for  the  enhancement  of  the  §  1325  of- 
fense to  a  felony,  was  "rendered  on  or  about  December  17, 
1981."  The  date  of  the  previous  conviction  was  actually 
December  7,  1981.  On  February  18,  1983,  respondent,  ap- 
pearing through  counsel,  was  arraigned  on  the  indictment. 
Trial  was  set  for  April  19,  1983. 

On  March  21,  1983,  the  Government  informed  respondent 
of  the  correct  date  of  the  previous  conviction,  and  on  April 
15,  1983,  the  grand  jury  returned  a  superseding  indictment 
which  was  identical  with  the  original  indictment  in  all  re- 
spects except  that  it  stated  that  the  date  of  the  previous  con- 
viction was  "on  or  about  December  7,  1981.  "2  Respondent 
was  arraigned  on  the  superseding  indictment  on  April  18, 
1983. 

Later  that  day  at  a  pretrial  conference,  respondent's  coun- 
sel moved  for  a  30-day  continuance  of  the  trial  scheduled  to 
begin  the  next  day  contending  that  the  Speedy  Trial  Act,  as 
construed  by  the  Court  of  Appeals  for  the  Ninth  Circuit  in 
United  States  v.  Arkus,  675  F.  2d  245  (1982),  required  that  a 
new  30-day  trial  preparation  period  be  granted  following  the 
return  of  a  superseding  indictment.3  The  District  Court 
denied  respondent's  motion  for  a  30-day  continuance,  citing 
the  Seventh  Circuit's  decision  in  United  States  v.  Horton,  676 


2  The  record  does  not  disclose  why  the  indictment  was  not  corrected  by 
a  motion  for  amendment  in  the  District  Court. 

3  Respondent's  counsel  also  argued  that  he  needed  the  additional  time  to 
consult  a  fingerprint  expert  and  to  review  respondent's  immigration  file. 
However,   the  ultimate  fact  to  which  such  evidence  related,    i    e  ,   that 
respondent  and  the  person  arrested  in  1981  were  one  and  the  same,  was 
ultimately  stipulated  to  by  respondent. 


234  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

F.  2d  1165  (1982),  and  distinguishing  Arkus.      Respondent 
was  convicted  of  felony  illegal  entry  into  the  United  States. 

The  Court  of  Appeals  reversed,  holding  that  under  its  deci- 
sion in  United  States  v.  Harris,  724  F.  2d  1452  (CA9  1984), 
which  in  turn  relied  on  its  decision  in  Arkus,  respondent  was 
entitled  to  a  new  30-day  trial  preparation  period  following 
his  arraignment  on  the  superseding  indictment.  Citing  its 
decision  in  United  States  v.  Daly,  716  F.  2d  1499  (CA9  1983), 
the  Court  of  Appeals  held  that  reversal  of  respondent's  con- 
viction was  required  to  remedy  the  Speedy  Trial  Act  viola- 
tion because  "any  pretrial  preparation  period  shorter  than 
thirty  days  is  inadequate  per  se.  No  showing  of  prejudice  is 
required." 

We  granted  certiorari,  469  U.  S.  1207  (1985).  We 
reverse. 

II 

Our  starting  point,  of  course,  is  the  language  of  the 
statute.  The  Speedy  Trial  Act  of  1974,  as  amended  in  1979, 
18  U.  S.  C.  §3161  et  seq.,  establishes  inside  and  outside 
time  limits  for  commencing  trial  in  criminal  cases.  Section 
3161(c)(2),  the  provision  at  issue  in  this  case,  provides: 

"Unless  the  defendant  consents  in  writing  to  the  con- 
trary, the  trial  shall  not  commence  less  than  thirty  days 
from  the  date  on  which  the  defendant  first  appears 
through  counsel  or  expressly  waives  counsel  and  elects 
to  proceed  pro  se"  (emphasis  added). 

The  statute  clearly  fixes  the  beginning  point  for  the  trial 
preparation  period  as  the  first  appearance  through  counsel. 
It  does  not  refer  to  the  date  of  the  indictment,  much  less 
to  the  date  of  any  superseding  indictment.  Given  this  unam- 
biguous language,  we  have  no  choice  but  to  conclude  that 
Congress  did  not  intend  that  the  30-day  trial  preparation 
period  begin  to  run  from  the  date  of  filing  of  a  superseding 
indictment. 


UNITED  STATES  u  ROJAS-CONTRERAS  235 

231  Opinion  of  the  Court 

That  conclusion  finds  additional  support  in  the  language  of 
§3161(c)(l).  That  section  establishes  the  outside  time  limit 
within  which  trial  must  commence  under  the  Act  and  explic- 
itly refers  to  the  date  of  the  indictment  as  one  of  the  relevant 
dates  for  determining  that  time  limit: 

"[T]he  trial  of  a  defendant  charged  in  an  information  or 
indictment  with  the  commission  of  an  offense  shall  com- 
mence within  seventy  days  from  the  filing  date  (and 
making  public)  of  the  information  or  indictment,  or 
from  the  date  the  defendant  has  appeared  before  a  judi- 
cial officer  of  the  court  in  which  such  charge  is  pending, 
whichever  date  last  occurs"  (emphasis  added). 

It  is  clear  that  Congress  knew  how  to  provide  for  the  com- 
putation of  time  periods  under  the  Act  relative  to  the  date  of 
an  indictment.  Had  Congress  intended  that  the  30-day  trial 
preparation  period  of  §  3161(c)(2)  commence  or  recommence 
on  such  a  date,  it  would  have  so  provided. 

Because  the  language  of  §  3161(c)(2)  is  a  clear  expression  of 
congressional  intent,  we  need  not  resort  to  the  legislative 
history  of  that  section.  We  note,  however,  that  the  legisla- 
tive history  is  wholly  consistent  with  our  reading  of  that 
section.  The  30-day  trial  preparation  period  was  not  in- 
cluded in  the  original  Speedy  Trial  Act  as  it  was  enacted  in 
1975  but  was  incorporated  into  the  Act  with  the  1979  amend- 
ments to  the  Act.  Speedy  Trial  Act  Amendments  Act  of 
1979,  Pub.  L.  96-43,  93  Stat.  327.  The  legislative  history  of 
the  1979  revisions  suggests  that  the  source  of  the  30-day  trial 
preparation  period  was  a  set  of  Guidelines  issued  by  the  Judi- 
cial Council  of  the  United  States  Court  of  Appeals  for  the 
Second  Circuit.  See  Hearings  on  S.  961  and  S.  1028  before 
the  Senate  Committee  on  the  Judiciary,  96th  Cong.,  1st 
Sess.,  122,  386-436  (1979).  The  Guidelines  were  issued  to 
assist  the  trial  judges  sitting  in  the  Second  Circuit  in  inter- 
preting the  provisions  of  the  Act.  Id.,  at  386.  These  Guide- 
lines provided  that  "whenever  the  time  between  arraignment 
and  the  scheduled  trial  date  does  not  exceed  thirty  (30)  days, 


236  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

the  Court  shall .  .  .  view  a  request  for  an  adjournment  of  trial 
to  a  date  beyond  thirty  (30)  days  but  within  the  sixty  (60)  day 
limit,  liberally  .  .  .  ."  Id.,  at  392-393.  The  Guidelines  also 
stated  that,  in  the  situation  where  a  superseding  indictment 
adds  new  charges,  trial  of  the  original  charges  must  begin 
"within  the  time  limit  for  commencement  of  trial  on  the  origi- 
nal indictment  or  information."  Id.,  at  417.  Taking  these 
two  statements  from  the  Guidelines  together,  it  appears  that, 
although  the  Second  Circuit  was  clearly  concerned  that  a  de- 
fendant be  given  a  pretrial  preparation  period  of  at  least  30 
days,  the  filing  of  a  superseding  indictment  was  not  enough 
by  itself  to  require  the  restarting  of  that  30-day  period. 

Applying  §3161(c)(2)  to  the  facts  of  this  case,  we  conclude 
that  the  requirements  of  that  section  were  met  here.  The 
record  reflects  that  respondent's  first  appearance  through 
counsel  occurred  on  February  18,  1983.  Trial  was  not  com- 
menced until  April  19,  1983.  Respondent  was,  therefore, 
afforded  a  pretrial  preparation  period  twice  as  long  as  the 
mininaum  required  by  §  3161(c)(2). 

In  concluding  as  we  do  that  the  Act  does  not  require  that 
the  30-day  trial  preparation  period  be  restarted  upon  the  fil- 
ing of  a  superseding  indictment,  we  do  not  hold  that  a  defend- 
ant must  always  be  compelled  to  go  to  trial  less  than  30  days 
after  the  filing  of  such  an  indictment.  The  Act  itself  places 
broad  discretion  in  the  District  Court  to  grant  a  continu- 
ance when  necessary  to  allow  further  preparation.  Section 
3161(h)(8)  authorizes  the  trial  judge  to  grant  a  continuance  if 
"the  ends  of  justice  served  by  taking  such  action  outweigh 
the  best  interest  of  the  public  and  the  defendant  in  a  speedy 
trial/'  The  authority  of  the  District  Court  to  grant  an  "ends 
of  justice"  continuance  should  take  care  of  any  case  in  which 
the  Government  seeks  a  superseding  indictment  which  oper- 
ates to  prejudice  a  defendant. 

Here  respondent  was  clearly  not  prejudiced  by  the  return 
of  the  superseding  indictment.  The  initial  indictment  re- 
cited that  the  judgment  on  the  prior  illegal  entry  had  been 


UNITED  STATES  v.  ROJAS-CONTRERAS  237 

231  BLACKMUN,  J.,  concurring  in  judgment 

rendered  "on  or  about  December  17,  1981."  The  supersed- 
ing indictment  did  nothing  except  to  correct  that  phrase  to 
read  "on  or  about  December  7,  1981."  Even  if  we  were  pre- 
pared to  hold  that  December  7  is  not  "on  or  about"  December 
17,  we  would  nevertheless  be  compelled  to  conclude  that 
respondent  was  not  prejudiced  by  the  change. 

Since  the  Act  did  not  prohibit  the  commencement  of  the 
trial  less  than  30  days  after  arraignment  on  the  superseding 
indictment,  we  need  not  address  the  question  whether  the 
District  Court's  refusal  to  grant  the  continuance  requested 
by  respondent  was  harmless  error. 

The  Court  of  Appeals'  construction  of  the  Act  ignored  its 
plain  language  and  would  frustrate  its  basic  purpose  which  is 
manifest  in  its  very  title:  The  speedy  trial  of  criminal  cases. 
That  construction  was  error,  and  we  reverse. 

Reversed. 

JUSTICE  BLACKMUN,  with  whom  JUSTICE  BRENNAN  joins, 
concurring  in  the  judgment. 

I  concur  in  the  result  the  Court  reaches  and  therefore  in  its 
judgment.  The  Court  today  holds  that  the  Speedy  Trial  Act 
does  not  mandate  a  new  30-day  defense-preparation  period 
following  return  of  a  superseding  indictment.  I  agree  with 
the  Court  that  that  holding  is  strongly  guided  by  the  express 
purpose  of  the  Speedy  Trial  Act.  But  because  I  find  neither 
the  language  of  the  Act  particularly  clear  nor  its  legislative 
history  at  all  helpful,  I  refrain  from  joining  the  opinion's  stat- 
utory analysis. 

The  term  "superseding  indictment"  refers  to  a  second  in- 
dictment issued  in  the  absence  of  a  dismissal  of  the  first. 
The  Act  nowhere  refers  to  a  superseding  indictment,  and 
seems  to  assume  that  dismissal  of  the  first  indictment  will 
precede  issuance  of  the  second.  See  18  U.  S.  C.  §§  3161(d)(l) 
and  3161(h)(6).  Section  3161(c)(2),  which  establishes  the 
30-day  defense-preparation  period  "from  the  date  on  which 
the  defendant  first  appears  through  counsel,"  therefore  can 
provide  only  the  starting  point  of  the  inquiry.  The  question 


238  OCTOBER  TERM,  1985 

BLACKMUN,  J. ,  concurring  in  judgment  474  U.  S. 

before  the  Court  is  whether  that  language  may  be  inter- 
preted to  refer  to  the  defendant's  appearance  on  the  indict- 
ment upon  which  he  ultimately  goes  to  trial,  or  whether  one 
must  read  that  language  to  refer  to  the  defendant's  appear- 
ance on  the  first  indictment.  Despite  the  fact  that  the  legis- 
lative history  of  the  Act  is  of  no  assistance,1  we  are  guided  in 
our  task  by  the  purpose  and  the  structure  of  the  Act. 

The  Speedy  Trial  Act  "gave  effect  to  a  Federal  defendant's 
right  to  speedy  trial  under  the  Sixth  Amendment  and  ac- 
knowledged the  danger  to  society  represented  by  accused 
persons  on  bail  for  prolonged  periods  of  time."  H.  R.  Rep. 
No.  96-390,  p.  3  (1979).  To  accomplish  these  goals,  the  Act 
provides  strict  time  limits  for  each  stage  of  the  criminal  trial 
process.  The  Act,  as  amended,  requires  that  a  defendant  be 
brought  to  trial  within  70  days  of  his  first  appearance  through 


1  As  the  Court  observes,  ante,  at  235,  the  notion  that  the  Act  might  op- 
erate to  deny  defendants  the  necessary  time  adequately  to  prepare  for  trial 
had  its  genesis  in  the  Guidelines  issued  by  the  Judicial  Council  of  the 
United  States  Court  of  Appeals  for  the  Second  Circuit  (Guidelines).     See 
Hearings  on  S.  961  and  S.  1028  before  the  Senate  Committee  on  the  Judi- 
ciary, 96th  Cong.,  1st  Sess.,  122,  386-436  (1979)  (Hearings).     However,  in 
enacting  the  1979  amendments,  Congress  did  not  adopt  the  Second  Cir- 
cuit's Guidelines;  in  fact,  Congress  rejected  the  Guidelines'  discretionary 
grant  of  a  defense-preparation  period,  opting  instead  for  a  mandatory 
30-day  period.     In  light  of  this  fundamental  difference  between  the  Act 
and  the  Guidelines,  the  latter's  details  can  provide  little  help  for  today's 
decision.     In  any  event,  the  Guidelines  do  not  answer  the  question  before 
us.     Under  them,  where  a  superseding  indictment  contains  charges  not  in- 
cluded in  the  original  indictment,  trial  of  the  original  charges  must  begin 
"within  the  time  limit  for  commencement  of  trial  on  the  original  indictment 
or  information."     Hearings,  at  417.     This  language  plainly  instructs  that 
as  to  the  original  charges  contained  in  a  superseding  indictment,  no  new 
30-day  and  70-day  periods  begin  to  run.     As  to  any  new  charges,  however, 
the  Guidelines  at  least  suggest  that  the  clock  for  the  70-day  time  to  trial 
must  be  restarted.     Ibid.     It  is  not  obvious  under  the  Guidelines  whether 
a  modified  charge  of  the  sort  before  us  today  would  be  treated  the  same  as 
the  original  charge,  and  the  Guidelines  are  silent  on  the  question  whether 
to  accord  the  defendant  the  opportunity  to  seek  an  additional  discretionary 
preparation  period  where  the  70-day  period  ran  anew. 


UNITED  STATES  v.  ROJAS-CONTRERAS  239 

231  BLACKMUN,  J.,  concurring  in  judgment 

counsel.  See  18  U.  S.  C.  §  3161(c)(l).  For  30  of  those  days, 
the  Government  cannot  proceed  to  trial,  in  order  that  the 
defendant  may  prepare  his  case. 

Because  the  criminal  process  does  not  always  proceed  in  a 
linear  fashion,  the  Act  addresses  second  indictments  that 
occur,  unlike  in  this  case,  following  dismissal  of  the  first  in- 
dictment. When  an  indictment  is  dismissed  on  motion  of  the 
defendant,  and  the  defendant  is  thereafter  reindicted,  both 
the  30-day  and  70-day  periods  run  anew.  See  18  U.  S.  C. 
§3161(d)(l).  In  contrast,  however,  when  an  indictment  is 
dismissed  on  motion  of  the  Government,  and  the  defendant  is 
thereafter  reindicted,  both  the  30-day  and  70-day  periods 
continue  to  run  from  the  first  indictment,  with  the  proviso 
that  the  period  during  which  no  indictment  is  outstanding 
is  excluded  from  the  70-day  calculation.  See  18  U.  S.  C. 
§3161(h)(6).  The  difference  in  treatment  protects  against 
governmental  circumvention  of  the  speedy-trial  guarantee. 

Neither  of  these  reindictment  provisions  applies  here,  be- 
cause the  second  indictment  was  issued  in  the  absence  of  dis- 
missal of  the  first.  The  provisions  demonstrate,  however, 
that  the  30-day  and  70-day  periods  were  intended  to  operate 
in  tandem;  where  one  runs  anew,  so  should  the  other.  In 
this  case,  therefore,  the  structure  of  the  statute  suggests 
that  either  both  periods  should  continue  to  run  upon  issuance 
of  a  superseding  indictment,  or  both  should  start  anew.  To 
permit  a  new  30-day  period,  but  not  a  new  70-day  period, 
could  lead  to  a  result  surely  not  intended  by  Congress, 
namely,  that  there  is  no  day  on  which  a  defendant  could  be 
brought  to  trial.  To  avoid  that  possibility,  respondent  ar- 
gues that  the  second  30-day  period  could  simply  be  excluded 
from  the  continuing  70-day  period  in  which  a  defendant  must 
be  brought  to  trial.  But  the  Act's  comprehensive  list  of 
express  exclusions  counsels  one  to  read  Congress'  failure  to 
exclude  certain  periods  of  time  as  a  considered  judgment 
that  those  periods  are  to  be  included  in  the  speedy-trial 


240  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  concurring  in  judgment  474  U.  S. 

calculation,  or  as  a  recognition  that  the  need  for  such  an 
exclusion  will  not  arise  under  the  statutory  scheme. 

In  light  of  Congress'  intent  to  bring  defendants  quickly  to 
trial,  it  would  make  little  sense  to  restart  both  the  30-day  and 
70-day  periods  whenever  there  is  a  superseding  indictment. 
Frequently,  a  superseding  indictment  is  used  to  drop  charges 
or  parties  or,  as  here,  to  make  a  minor  correction,  leaving  the 
charges  and  the  evidence  necessary  to  defend  against  them 
unaffected.  These  kinds  of  changes  should  not  create  a  need 
for  further  preparation  time;  indeed,  in  some  instances, 
superseding  indictments  may  lessen  the  defense  burden. 
Where  a  superseding  indictment  of  this  type  is  issued,  the 
Court's  holding  today  permits  the  defendant  to  be  brought  to 
trial  without  unnecessary  delay. 

Like  the  Court,  I  fully  recognize  that  a  superseding  indict- 
ment may  add  to  a  defendant's  burden  in  preparing  for  trial. 
In  the  event  of  additional  charges,  or  of  material  changes, 
a  defendant  well  may  need  additional   preparation   time. 
Under  the  Act,  a  defendant  then  may  seek  an  "ends  of  jus- 
tice" continuance,  to  be  granted  in  the  discretion  of  the  trial 
court.2     See  18  U.  S.  C.  §  3161(h)(8)(A).      This  continuance 
is  available  whether  the  need  for  additional  time  is  occasioned 
by  a  superseding  indictment  or  otherwise.     Indeed,  the  1979 
amendments  to  the  Speedy  Trial  Act  not  only  mandated  the 
30-day  defense-preparation  period,  but  also  provided  that 
one  basis  for  granting  a  continuance  is  if  "the  failure  to  grant 
such  a  continuance  .  .  .  would  deny  counsel  for  the  defendant 
.  .  .  the  reasonable  time  necessary  for  effective  preparation." 
18  U.  S.  C.  §3161(h)(8)(B)(iv).      The  constitutional  right  to 
assistance  of  counsel  is  rendered  meaningless  if  a  defendant 
is  forced  to  trial  in  the  absence  of  adequate  time  to  prepare. 
To  avoid  prejudicing  a  defendant,  a  continuance  should  be 

2  Because  time  granted  under  an  "ends  of  justice"  continuance  is  ex- 
pressly excluded  from  the  70-day  period,  any  preparation  time  granted 
would  not  jeopardize  the  Government's  ability  to  bring  the  defendant  to 
trial.  See  18  U.  S.  C.  §  3161(h)(8)(A). 


UNITED  STATES  u  ROJAS-CONTRERAS  241 

231  BLACKMUN,  J.,  concurring  in  judgment 

granted  where  there  is  a  meaningful  possibility  that  a  super- 
seding indictment  will  require  an  alteration  or  adjustment  in 
the  planned  defense.  Trial  courts  should  bear  in  mind  that 
counsel  may  require  time  fully  to  analyze  the  impact  of 
the  superseding  indictment,  and  to  explore  any  options  it 
presents  or  precludes.3 

The  Speedy  Trial  Act  assures  that  defendants  will  be 
brought  to  trial  quickly,  but  without  undermining  the  Con- 
stitution's guarantee  of  effective  assistance  of  counsel.  Be- 
cause the  Court's  holding  today  upholds  that  essential  prom- 
ise of  the  Act,  I  concur  in  the  judgment. 


3  Following  enactment  of  the  1979  amendments,  the  Committee  on  the 
Administration  of  the  Criminal  Law  recommended  precisely  this  analysis. 
The  Committee  advised  district  courts  that,  in  the  event  of  a  superseding 
indictment,  the  30-day  preparation  period  should  not  run  anew,  but  "the 
trial  court  should  use  its  scheduling  discretion  to  ensure  that  the  defense 
has  time  to  prepare  in  the  circumstances  of  the  particular  case."  See  Judi- 
cial Conference  of  the  United  States,  Committee  on  the  Administration  of 
the  Criminal  Law,  Guidelines  to  the  Administration  of  the  Speedy  Trial 
Act  of  1974,  as  Amended,  p.  14  (1981). 


242  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

UNITED  STATES  v.  VON  NEUMANN 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  NINTH  CIRCUIT 

No.  84-1144.     Argued  November  4,  1985— Decided  January  14,  1986 

Respondent  purchased  a  car  in  Switzerland  and  had  it  shipped  to  Vancou- 
ver, Canada.     After  he  had  picked  up  the  car  in  Vancouver,  he  drove  to 
the  United  States  border  but  failed  to  declare  the  car  when  asked  by  a 
United  States  customs  officer  whether  he  had  anything  to  declare.     Cus- 
toms then  seized  the  car  pursuant  to  19  U.  S.  C.  §  1497,  which  provides 
that  any  article  not  declared  upon  entry  into  the  United  States  that  by 
law  must  be  declared  is  subject  to  forfeiture  or  to  a  penalty  equaling  the 
value  of  the  article.     Respondent,  rather  than  waiting  to  challenge  the 
seizure  in  a  judicial  forfeiture  action  that  might  be  initiated  by  the  Gov- 
ernment, immediately  chose  the  other  statutory  option  of  filing  a  petition 
for  administrative  remission  of  the  forfeiture.      Two  weeks  later  he 
posted  a  bond  for  $24,500,  the  car's  value,  and  Customs  released  the  car. 
The  Customs  Service  did  not  respond  to  the  remission  petition  until  36 
days  after  it  was  filed,  at  which  time  the  penalty  for  failure  to  declare  the 
car  was  reduced  to  $3,600,  and  this  penalty  was  upheld  on  administrative 
review.     Respondent  then  filed  a  complaint  in  Federal  District  Court, 
seeking  cancellation  of  the  penalty  on  the  ground  that  he  had  not  violated 
§  1497,  and  a  declaration  that  the  seizure  and  penalty  were  unlawful. 
The  District  Court  disagreed  and  entered  judgment  for  the  Government. 
The  Court  of  Appeals  held  that  the  36-day  delay  in  acting  on  respond- 
ent's remission  petition  denied  him  due  process  of  law  in  violation  of  the 
Fifth  Amendment.      Subsequently  on  remand  from  this  Court  for  re- 
consideration in  light  of  United  States  v.  $8,850,  461  U.  S.  555,  the  Court 
of  Appeals  held  that  the  four-factor  balancing  test  of  Barker  v.  Wingo, 
407  U.  S.  514 -the  length  of  the  delay,  the  reason  for  the  delay,  the 
defendant's  assertion  of  his  right,  and  prejudice  suffered  by  the  defend- 
ant—applied in  $8,850  in  determining  whether  a  delay  in  bringing  a 
forfeiture  proceeding  violated  due  process  should  also  be  applied  to 
determine  whether  the  36-day  delay  in  this  case  violated  due  process, 
and  accordingly  remanded  to  the  District  Court  to  determine  that  ques- 
tion under  the  above  test. 

Held:  On  the  record,  the  36-day  delay  did  not  deprive  respondent  of  prop- 
erty without  due  process  of  law.     Pp.  249-251. 

(a)  Respondent's  right  to  a  forfeiture  proceeding  meeting  the  Barker 
test  provides  the  postseizure  hearing  required  by  due  process  to  protect 
respondent's  property  interest  in  the  car.  The  remission  statute  simply 


UNITED  STATES  v.  VON  NEUMANN  243 

242  Opinion  of  the  Court 

grants  the  Secretary  of  the  Treasury  the  discretion  not  to  pursue  a  com- 
plete forfeiture  despite  the  Government's  entitlement  to  one.  Remis- 
sion proceedings  are  not  necessary  to  a  forfeiture  determination,  and 
therefore  are  not  constitutionally  required.  Thus,  there  is  no  constitu- 
tional basis  for  a  claim  that  respondent's  interest  in  the  car,  or  in  the 
money  put  up  to  secure  the  bond,  entitled  him  to  a  speedy  answer  to  his 
remission  petition.  Pp.  249-250. 

(b)  Even  if  respondent  had  a  property  right  under  the  remission  stat- 
ute that  cannot  be  taken  away  without  due  process  that  includes  a 
speedy  answer  to  the  remission  petition,  any  due  process  requirement 
of  timely  disposition  was  more  than  adequately  provided  for  here.  It 
is  not  shown  that  he  suffered  any  prejudice  from  the  36-day  delay. 
Pp.  250-251. 
729  F.  2d  657,  reversed. 

BRENNAN,  J.,  delivered  the  opinion  of  the  Court,  in  which  WHITE,  MAR- 
SHALL, BLACKMUN,  POWELL,  REHNQUIST,  and  O'CONNOR,  JJ.,  joined, 
and  in  Parts  I  and  II  of  which  BURGER,  C.  J.,  joined.  BURGER,  C.  J., 
filed  an  opinion  concurring  in  part,  post,  p.  251.  STEVENS,  J.,  filed  an 
opinion  concurring  in  the  judgment,  post,  p.  252. 

Alan  I.  Horowitz  argued  the  cause  for  the  United  States. 
With  him  on  the  brief  were  Acting  Solicitor  General  Fried, 
Assistant  Attorney  General  Trott,  and  Deputy  Solicitor  Gen- 
eral Frey. 

Charles  L.  Birke  argued  the  cause  and  filed  a  brief  for 
respondent. 

JUSTICE  BRENNAN  delivered  the  opinion  of  the  Court. 

We  must  decide  in  this  case  whether  a  36-day  delay  by  the 
United  States  Customs  Service  in  responding  to  a  remission 
petition  filed  by  respondent  in  response  to  the  seizure  of  his 
car  by  customs  agents  deprived  respondent  of  property  with- 
out due  process  of  law. 

I 

Title  19  U.  S.  C.  §1497'  provides  that  any  article  not 
declared  upon  entry  into  the  United  States  which  by  law 

1  Section  497,  46  Stat.  728,  19  U.  S.  C.  §  1497,  provides: 
"Any  article  not  included  in  the  declaration  and  entry  as  made,  and,  before 
examination  of  the  baggage  was  begun,  not  mentioned  in  writing  by  such 
person,  if  written  declaration  and  entry  was  required,  or  orally  if  written 


244  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

must  be  declared  is  subject  to  forfeiture  or  to  a  penalty  equal- 
ing the  value  of  the  article.  After  seizure  of  an  article  by  the 
United  States  Customs  Service,  a  claimant  to  it  has  essen- 
tially two  options.  He  may  pursue  an  administrative  rem- 
edy under  19  U.  S.  C.  §1618  (1982  ed.,  Supp.  Ill),2  which 
vests  in  the  Secretary  of  the  Treasury  the  discretionary  au- 
thority to  mitigate  or  remit  the  penalty  or  forfeiture,  or  he 
may  challenge  the  seizure  in  a  judicial  forfeiture  action  initi- 
ated by  the  Government.3  19  U.  S.  C.  §§  1602-1604.4 

declaration  and  entry  was  not  required,  shall  be  subject  to  forfeiture  and 
such  person  shall  be  liable  to  a  penalty  equal  to  the  value  of  such  article." 
2  Section  618,  46  Stat.  757,  as  amended  and  set  forth  in  19  U.  S.  C. 
§  1618  (1982  ed.,  Supp.  Ill),  provides  in  pertinent  part: 
'Whenever  any  person  interested  in  any  vessel,  vehicle,  aircraft,  merchan- 
dise, or  baggage  seized  under  the  provisions  of  this  chapter,  or  who  has 
incurred,  or  is  alleged  to  have  incurred,  any  fine  or  penalty  thereunder, 
files  with  the  Secretary  of  the  Treasury  if  under  the  customs  laws  .  .  .  be- 
fore the  sale  of  such  vessel,  vehicle,  aircraft,  merchandise,  or  baggage  a 
petition  for  the  remission  or  mitigation  of  such  fine,  penalty,  or  forfeiture, 
the  Secretary  of  the  Treasury  ...  if  he  finds  that  such  fine,  penalty,  or 
forfeiture  was  incurred  without  willful  negligence  or  without  any  intention 
on  the  part  of  the  petitioner  to  defraud  the  revenue  or  to  violate  the  law,  or 
finds  the  existence  of  such  mitigating  circumstances  as  to  justify  the  remis- 
sion or  mitigation  of  such  fine,  penalty,  or  forfeiture,  may  remit  or  mitigate 
the  same  upon  such  terms  and  conditions  as  he  deems  reasonable  and  just, 
or  order  discontinuance  of  any  prosecution  relating  thereto." 

3  The  claimant  may  trigger  the  Government's  initiation  of  forfeiture  pro- 
ceedings. In  United  States  v.  $8,850,  461  U.  S.  555,  569  (1983),  we  noted: 
"A  claimant  is  able  to  trigger  rapid  filing  of  a  forfeiture  action  if  he  desires 
it.  First,  the  claimant  can  file  an  equitable  action  seeking  an  order  com- 
pelling the  filing  of  the  forfeiture  action  or  return  of  the  seized  property. 
See  Slocum  v.  Mayberry,  2  Wheat.  1,  10  (1817)  (Marshall,  C.  J.).  Less 
formally,  the  claimant  could  simply  request  that  the  Customs  Service  refer 
the  matter  to  the  United  States  Attorney.  If  the  claimant  believes  the 
initial  seizure  was  improper,  he  could  file  a  motion  under  Federal  Rule  of 
Criminal  Procedure  41(e)  for  a  return  of  the  seized  property." 

4  When  the  Jaguar  was  seized  in  this  case,  a  customs  officer  could  have 
instituted  nonjudicial,  summary  forfeiture  proceedings  if  the  value  of  the 
car  had  been  not  more  than  $10,000.  See  19  U.  S.  C.  §§  1607-1609.  Con- 
gress has  since  raised  this  limit  to  $100,000.  19  U.  S.  C.  §  1607  (1982  ed., 


UNITED  STATES  v.  VON  NEUMANN  245 

242  Opinion  of  the  Court 

In  1974,  respondent  John  Von  Neumann  shipped  to  Van- 
couver, Canada,  a  1974  Jaguar  Panther  automobile  he  pur- 
chased in  Switzerland.  On  January  20,  1975,  he  and  a  friend 
picked  up  the  car  in  Vancouver,  obtained  a  release  from 
Canadian  Customs  to  take  possession  of  the  vehicle  and  also 
obtained  a  form  that  Von  Neumann  was  to  deliver  to  the 
Canadian  Customs  station  at  the  border.  Von  Neumann 
failed  to  deliver  the  form  to  Canadian  Customs  officials.  He 
claimed  that  he  inadvertently  drove  past  the  Canadian  Cus- 
toms station  because  of  poor  visibility  and  inadequate  direc- 
tions. Instead,  Von  Neumann  and  his  friend  arrived  at  the 
United  States  border  checkpoint  at  Elaine,  Washington, 
where  they  were  questioned  by  United  States  Immigration 
Officer  Harry  Perkins,  a  designated  customs  officer.  Cana- 
dian Customs  officials  had  earlier  alerted  United  States  Cus- 
toms that  Von  Neumann's  car  would  be  crossing  the  border, 
and  Perkins  specifically  asked  Von  Neumann  whether  he  had 
anything  to  declare.  When  Von  Neumann  failed  to  declare 
the  automobile,  Perkins  asked  him  into  the  checkpoint  station 
and  referred  the  matter  to  Customs  Inspector  Donald  E. 
Morrison.  Upon  being  asked  why  he  had  not  declared  the 
car,  Von  Neumann  explained  that  he  did  not  think  a  declara- 
tion was  required.  Morrison  then  seized  the  car  pursuant  to 
19  U.  S.  C.  §  1497. 

That  same  day,  January  20,  Von  Neumann  prepared  a 
"Petition  for  Remission  or  Mitigation  of  Forfeitures  and  Pen- 
alties Incurred,"  pursuant  to  19  U.  S.  C.  §  1618,  explaining 
that  he  had  not  intended  to  violate  United  States  Customs 
laws  when  he  failed  to  declare  the  car.  Two  weeks  later,  on 
February  3,  Von  Neumann  posted  a  bond  for  $24,500,  the 


Supp.  III).  Even  for  a  seizure  of  property  appraised  at  less  than  $100,000, 
the  claimant  has  a  right  to  a  judicial  determination  upon  posting  a  bond  to 
cover  costs  in  the  sum  of  $2,500  or  10%  of  the  value  of  the  claimed  prop- 
erty, whichever  is  smaller,  but  not  less  than  $250.  19  U.  S.  C.  §  1608 
(1982  ed.,  Supp.  III). 


246  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

value  of  his  car,  and  Customs  released  the  vehicle  pursuant 
to  its  authority  under  19  U.  S.  C.  §  1614.  On  February  12, 
counsel  for  Von  Neumann  filed  a  supplement  to  the  original 
remission  petition.  On  February  25—36  days  after  the  peti- 
tion was  filed— the  Seattle  District  Director  of  the  Customs 
Service,  pursuant  to  delegation  of  authority  from  the  Secre- 
tary of  the  Treasury,5  acted  on  Von  Neumann's  remission 
petition,  and  informed  Von  Neumann  that  the  penalty  for 
failure  to  declare  the  car  was  being  reduced  to  $3,600.  On 
administrative  review  of  this  determination,  the  Regional 
Commissioner  of  Customs  in  San  Francisco,  on  April  14, 
1975,  upheld  the  $3,600  penalty. 

Having  exhausted  his  administrative  remedies,  Von  Neu- 
mann filed  a  complaint  in  the  United  States  District  Court  for 
the  Central  District  of  California.  He  sought  cancellation  of 
the  $3,600  penalty  on  the  ground  that  he  had  not  violated 
§  1497.  He  also  requested  an  injunction  prohibiting  Customs 
from  placing  his  name  on  a  computer  list  of  violators,  and  a 
declaration  that  this  seizure  and  penalty  were  unlawful.  The 
District  Court  found  that  Von  Neumann  had  violated  19 
U.  S.  C.  §  1497,  and  that  seizure  of  the  car  therefore  was 
proper.  The  court  also  upheld  the  validity  of  the  remission 
and  mitigation  procedures.  Accordingly,  it  entered  judg- 
ment for  the  Government.6  Von  Neumann  appealed  this  de- 


5  The  Secretary  of  the  Treasury  is  authorized  by  statute  to  act  on  peti- 
tions for  remission.     19  U.  S.  C.  §  1618.     This  authority  has  been  dele- 
gated to  District  Directors  of  the  Customs  Service  in  some  cases  where  the 
total  value  of  the  merchandise  forfeited  does  not  exceed  $100,000,  19  CFR 
§  171.21  (1985).     At  the  time  of  this  seizure,  the  limit  was  $25,000.     See  19 
CFR  §  171.21  (1974), 

6  The  Government  filed  a  contingent  counterclaim  seeking  recovery  of 
the  full  $24,500  in  accordance  with  19  U.  S.  C.  §  1497,  in  the  event  the 
District  Court  found  the  mitigation  invalid.     Because  the  District  Court 
entered  judgment  in  favor  of  the   Government  on  the  merits   of  Von 
Neumann's   complaint,   it   denied  the   contingent   counterclaim.       In  its 
answer  in  the  District  Court  the  Government  had  also  contended  that  the 
remission  and  mitigation  sought  and  received  by  respondent  was  a  settle- 


UNITED  STATES  v.  VON  NEUMANN  247 

242  Opinion  of  the  Court 

cision,  challenging  both  the  procedures  followed  by  Customs 
in  imposing  the  penalty  and  also  the  penalty  itself. 

The  Court  of  Appeals  for  the  Ninth  Circuit  agreed  with 
the  District  Court  that  Von  Neumann  had  violated  §  1497. 
660  F.  2d  1319,  1323  (1981).  The  court,  however,  also  con- 
sidered and  sustained  Von  Neumann's  claim  that  the  36-day 
delay  in  acting  on  his  remission  petition  denied  Von  Neu- 
mann due  process  of  law  in  violation  of  the  Fifth  Amendment. 
The  court  reasoned  that  speed  in  the  handling  of  the  remis- 
sion petition,  particularly  where  the  seizure  is  of  an  auto- 
mobile, is  constitutionally  required— that  strict  guidelines  in 
responding  to  remission  petitions  are  necessary  "to  ensure 
the  due  process  rights  of  administrative  claimants,"  id.,  at 
1326-1327,  and  concluded  that  Customs  must  "act  on  a  peti- 
tion for  remission  or  mitigation  within  24  hours  of  receipt," 
id.,  at  1327.  In  addition,  the  court  ruled,  a  claimant  has  a 
right  to  a  personal  appearance  to  present  his  or  her  claim. 
Ibid. 

The  Government  petitioned  for  certiorari.  We  granted 
the  petition,  vacated,  and  remanded  for  reconsideration  in 
light  of  United  States  v.  $8,850,  461  U.  S.  555  (1983).  462 
U.  S.  1101  (1983).  In  $8,850,  however,  the  issue  presented 
did  not  involve  the  remission  procedure;  rather  the  question 
was  whether  the  Government's  18-month  delay  in  bringing  a 
forfeiture  proceeding  violated  the  claimant's  right  to  due 
process  of  law.  The  Court  held  that  due  process  requires  a 
postseizure  determination  within  a  reasonable  time  of  the  sei- 
zure. We  concluded  that  the  four-factor  balancing  test  of 
Barker  v.  Wingo,  407  U.  S.  514  (1972),  provides  the  relevant 
framework  for  determining  whether  a  delay  was  reasonable. 
The  Barker  test  involves  a  weighing  of  four  factors:  the 
length  of  any  delay,  the  reason  for  the  delay,  the  defendant's 
assertion  of  his  right,  and  prejudice  suffered  by  the  defend- 
ant. Applying  this  test  to  the  18-month  delay  before  it,  the 

rnent,  accord,  and  satisfaction  binding  on  Von  Neumann.      The  District 
Court  did  not  reach  this  issue;  nor  do  we 


248  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Court  in  $8,850  found  no  unreasonable  delay,  in  part  because 
a  substantial  portion  of  the  delay  in  question  was  attributable 
to  pending  administrative  and  criminal  proceedings. 

On  remand  in  this  case,  the  Court  of  Appeals  recognized 
that  $8,850  "presented  a  somewhat  different  issue  from  that 
arising  in  the  instant  case,"  729  F.  2d  657,  659  (1984),  because 
$8,850  dealt  with  forfeiture  rather  than  the  remission  proce- 
dure.    Nevertheless,  it  concluded  that  this  Court's  holding  in 
$8,850  "reinforces  our  earlier  view  that  due  process  rights 
attach  to  the  processing  of  the  petition  for  remission,"  729 
F.  2d,  at  660,  and  therefore  reaffirmed  its  holding  that  "due 
process  requires  Customs  to  act  promptly  in  ruling  on  peti- 
tions for  remission  or  mitigation  under  19  U.  S.  C.  §  1618." 
Ibid.     The  court  recognized  that  its  earlier  attempt  to  set 
specific  time  limits  for  the  processing  of  remission  petitions 
was  "ill-advised,"  ibid.,  and  held  instead  that  the  Barker  fac- 
tors should  also  be  applied  to  determine  whether  Customs 
has  violated  due  process  in  delaying  a  response  to  a  remission 
petition.     The  court  accordingly  remanded  the  case  to  the 
District  Court  to  consider  whether  the  36-day  delay  violated 
due  process.     In  addition,  however,  the  court  made  clear  its 
view  that  the  circumstances  of  this  case  support  a  finding  of  a 
due  process  violation.     Thus,  the  court  noted  that  the  propri- 
ety of  the  length  of  the  delay  may  turn  on  the  nature  of  the 
item  that  has  been  seized,  and  reemphasized  the  point  made 
in  its  earlier  opinion  that  "special  hardships  [are]  imposed  on 
persons  deprived  of  the  use  of  their  automobiles  .  .  .  ."     729 
F.  2d,  at  661.     With  respect  to  the  reason  for  the  delay,  the 
Court  of  Appeals  observed  that  the  "record  here  provides  no 
obvious  reason  for  the  Government's  one-month  delay  in 
processing  von  Neumann's  petition,  although  we  note  that 
Customs  processes  a  great  number  of  petitions  each  year." 
Ibid.     In  addition,  the  court  pointed  to  the  filing  of  the  remis- 
sion petition  itself  as  the  necessary  assertion  of  the  right 
to  a  speedy  determination  under  Barker.     Finally,  the  court 


UNITED  STATES  v.  VON  NEUMANN  249 

242  Opinion  of  the  Court 

noted  that  prejudice  could  be  established  by  the  inconve- 
nience of  being  without  a  vehicle  for  any  length  of  time. 

Arguing  that  due  process  considerations  do  not  govern  the 
Secretary's  disposition  of  remission  petitions,  the  Govern- 
ment petitioned  for  certiorari.  We  granted  the  Govern- 
ment's petition.  471  U.  S.  1064  (1984).  We  now  reverse. 

II 

We  understand  respondent  to  argue  that  his  property  in- 
terest in  his  car  gives  him  a  constitutional  right  to  a  speedy 
disposition  of  his  remission  petition  without  awaiting  a  for- 
feiture proceeding.  We  disagree.  Implicit  in  this  Court's 
discussion  of  timeliness  in  $8,850  was  the  view  that  the  for- 
feiture proceeding,  without  more,  provides  the  postseizure 
hearing  required  by  due  process  to  protect  Von  Neumann's 
property  interest  in  the  car.7  Respondent  argues,  however, 
that  "[t]he  petition  for  remission  procedure  is  just  one  step  in 
which  it  is  determined  whether  that  property  interest  will  be 
extinguished  via  a  judicial  foreclosure  proceeding."  Brief 
for  Respondent  8-9.  We  think  respondent  misunderstands 
the  remission  procedure's  role.  It  is  true  that,  as  a  practical 
matter,  most  forfeitures  are  disposed  of  through  the  adminis- 
trative remission  procedures,8  but  that  is  constitutionally 

7  In  $8,850  the  claimant  conceded  that  no  preseizure  hearing  is  required 
when  Customs  makes  a  seizure  at  the  border.     Respondent  does  not  dis- 
pute that  here,  and  we  doubt  that  he  could.     In  $8,850  we  noted  that  while 
the  general  rule  is  that  "absent  an  'extraordinary  situation'  a  party  cannot 
invoke  the  power  of  the  state  to  seize  a  person's  property  without  a  prior 
judicial  determination  that  the  seizure  is  justified.  .  .  .  [D]ue  process  does 
not  require  federal  customs  officials  to  conduct  a  hearing  before  seizing 
items  subject  to  forfeiture."     461  U.  S.,  at  562,  n.  12.     We  reasoned  that 
such  a  requirement  would  make  customs  processing  entirely  unworkable 
and  also  found  that  because  "the  seizure  serves  important  governmental 
purposes [,]  a  preseizure  notice  might  frustrate  the  statutory  purpose  .  .  . ." 
Ibid. 

8  We  noted  in  $8,850  that  Customs  processes  over  50,000  noncontraband 
forfeitures  per  year,  and  that  in  90%  of  all  seizures,  the  claimant  files  a 
petition  for  remission  or  mitigation.     We  further  noted  that  the  Secretary 


250  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

irrelevant.     We  noted  in  One  Lot  Emerald  Cut  Stones  v. 
United  States,  409  U.  S.  232,  234  (1972),  that  in  the  event 
an  item  is  not  declared  at  the  border  under  §  1497  "[t]he 
Government  need  only  prove  that  the  property  was  brought 
into  the  United  States  without  the  required  declaration; 
the  Government  bears  no  burden  with  respect  to  intent." 
The  remission  statute  simply  grants  the  Secretary  the  dis- 
cretion not  to  pursue  a  complete  forfeiture  despite  the  Gov- 
ernment's entitlement  to  one.     Remission  proceedings  sup- 
ply both  the  Government  and  the  claimant  a  way  to  resolve 
a  dispute  informally  rather  than  in  judicial  forfeiture  pro- 
ceedings.    But  remission  proceedings  are  not  necessary  to  a 
forfeiture  determination,  and  therefore  are  not  constitution- 
ally required.     Thus  there  is  no  constitutional  basis  for  a 
claim  that  respondent's  interest  in  the  car,  or  in  the  money 
put  up  to  secure  the  bond,  entitles  him  to  a  speedy  answer 
to  his  remission  petition. 

Ill 

While  his  interest  in  the  car  is  the  only  basis  on  which 
respondent  relies  in  his  support  of  the  Court  of  Appeals'  de- 
cision, the  Government  asks  that  the  Court  adjudge  the  case 
of  a  claimant  who  relies  on  the  argument  that  §  1618  itself 
creates  a  property  right  which  cannot  be  taken  away  without 
due  process  that  includes  a  speedy  answer  to  a  remission 
petition.     The  Government  argues  that  the  statute  creates 
no  such  right.     We  need  not  address  the  hypothetical,  how- 
ever.    It  is  abundantly  clear  on  the  record  in  this  case  that, 
even  if  respondent  had  such  a  property  right,  any  due  proc- 
ess requirement  of  timely  disposition  .was  more  than  ade- 
quately provided  here.     It  is  difficult,  indeed  impossible,  to 
see  what  prejudice  respondent  suffered  from  the  36-day 
delay  in  the  response.     True,  he  was  without  his  car  for  14 
days,  and  then,  for  another  22  days,  without  the  money  he 

in  turn  grants  at  least  partial  relief  for  an  estimated  75%  of  the  petitions. 
Typically,  this  mitigation  process  terminates  the  dispute  without  the  ne- 
cessity of  filing  a  forfeiture  action. 


UNITED  STATES  u  VON  NEUMANN  251 

244  BURGER,  C.  J.,  concurring- in  part 

had  to  put  up  to  secure  a  bond,  and  Von  Neumann  urges  the 
importance  of  automobiles  to  citizens  in  this  society.  But  we 
have  already  noted  that  his  right  to  a  forfeiture  proceeding 
meeting  the  Barker  test  satisfies  any  due  process  right  with 
respect  to  the  car  and  the  money.  In  fact,  it  is  not  alto- 
gether certain  that  the  delay  dated  from  the  filing  on  January 
20  of  the  original  remission  petition.  Respondent  supple- 
mented his  remission  petition  and  was  given  a  final  decision 
just  13  days  later.  Moreover,  respondent  gives  no  hint  as  to 
how  or  why  even  a  36-day  delay  in  the  disposition  of  his  re- 
mission petition  deprived  him  of  the  process  he  claims  was  his 
due  in  connection  with  that  petition.  He  does  not  argue  that 
the  delay  prejudiced  his  defense  against  the  forfeiture,  see 
$8,850,  461  U.  S.,  at  569,  and  with  respect  to  preparing  his 
"case"  for  remission,  that  case  was  made  at  the  time  of  filing 
and  could  not  have  been  affected  by  the  subsequent  delay. 
On  the  record  before  us,  the  36-day  delay  cannot  be  said  to 
deprive  respondent  of  due  process  of  law. 

Reversed. 

CHIEF  JUSTICE  BURGER,  concurring  in  part. 

I  join  Parts  I  and  II  of  the  majority  opinion,  but  do  not 
agree  with  the  Court's  failure,  in  Part  III  of  the  opinion,  to 
resolve  an  important  question  that  is  properly  before  the 
Court. 

Part  III  declines  to  address  the  question  whether  a  claim- 
ant may  assert  a  due  process  "property"  interest  in  the  result 
of  a  discretionary  petition  for  reduction  of  a  statutory  pen- 
alty. This  question  was  expressly  presented  by  our  grant  of 
the  Government's  petition  for  certiorari.  The  two  opinions 
of  the  Court  of  Appeals  are  sufficiently  ambiguous  as  to  leave 
unclear  whether  or  not  that  court  was  relying  on  Von 
Neumann's  interest  in  the  car  itself,  or  on  some  interest  in 
having  his  penalty  reduced.  In  its  initial  opinion  the  Court 
of  Appeals  held  that  "[t]he  delay  in  processing  [respondent's] 
petition  for  remission  or  mitigation  .  .  .  violated  his  due  proc- 


252  OCTOBER  TERM,  1985 

STEVENS,  J.,  concurring  in  judgment  474  U.  S. 

ess  right  to  prompt  consideration  of  his  claim."     660  F.  2d 
1319,  1327  (CA9  1981)  (emphasis  added). 

Whether  respondent  has  any  due  process  right  in  his  claim 
for  mitigation  of  the  statutory  penalty  is  a  question  properly 
before  the  Court,  and  we  have  an  obligation  to  address  it. 
Resolution  of  this  issue  is  not  difficult.  We  held  in  Connecti- 
cut Board  of  Pardons  v.  Dumschat,  452  U.  S.  458  (1981), 
that  a  prisoner  has  no  liberty  interest  cognizable  under  due 
process  in  a  claim  for  a  discretionary  grant  of  parole,  even 
though  under  the  state  parole  procedure  inmates  were  regu- 
larly and  routinely  granted  release.  It  follows  directly  that 
there  can  be  no  possible  due  process  property  interest  in  a 
discretionary  grant  of  a  reduction  in  a  statutory  penalty  un- 
less we  are  prepared  to  modify  Dumschat. 

I  would  confront  and  resolve  this  issue  rather  than  relying 
on  the  Court's  alternative  holding  that  the  36-day  period  sat- 
isfies due  process  regardless  of  what  due  process  "interests" 
were  actually  involved. 

JUSTICE  STEVENS,  concurring  in  the  judgment. 

The  fact  that  remission  procedures  are  not  constitutionally 
required,  ante,  at  249-250,  does  not  shed  any  light  on  the 
question  whether  the  Government  has  an  obligation  to  proc- 
ess remission  petitions  with  reasonable  diligence.     For  even 
though  it  was  not  obligated  to  do  so,  Congress  has  enacted 
legislation   authorizing  the   Secretary   of  the   Treasury  to 
create  such  a  procedure.     The  importance  of  this  statutory 
procedure  is  underlined  by  the  fact  that  it  is  used  to  resolve 
almost  50,000  claims  every  year.      Its  practical  significance 
is  also  suggested  by  the  fact  that  the  number  of  at  least 
partially  successful  claimants  in  remission  proceedings  is  tri- 
ple the  number  that  come  away  emptyhanded.     This  record 
indicates  that  the  remission  petition  is  a  principal  mechanism 
for  resolving  the  dispute  between  the  Government  and  the 
individual  that  frequently  results  from  the  seizure  of  prop- 
erty at  our  borders. 


UNITED  STATES  u  VON  NEUMANN  253 

242  STEVENS,  J.,  concurring  in  judgment 

When  Congress  authorizes  a  member  of  the  Cabinet  to  es- 
tablish a  procedure  of  this  importance  to  thousands  of  indi- 
viduals, it  surely  intends  that  the  procedure  will  be  adminis- 
tered in  a  regular  and  fundamentally  fair  way.  One  element 
of  fair  procedure  is  a  requirement  of  reasonable  diligence  in 
processing  claims.  Absent  clear  evidence  to  the  contrary,  I 
would  therefore  construe  the  statute  as  implicitly  command- 
ing the  Secretary  to  act  diligently,  and  would  not  speculate 
about  the  possibility  that  a  wholly  arbitrary  remission  proce- 
dure would  comply  with  the  Due  Process  Clause  of  the  Fifth 
Amendment.  * 

Nevertheless,  I  agree  with  the  Court's  ultimate  conclusion 
that  on  this  record  respondent  has  not  demonstrated  that 
the  36-day  delay  in  responding  to  his  petition  was  unlawful. 
I  therefore  concur  in  the  judgment. 


*The  Government  concedes  that,  at  least  before  the  Customs  Service 
acts  on  a  remission  petition,  Congress  has  intended  that  the  timeliness  of 
the  Government's  response  be  fully  reviewable.  See  Brief  for  United 
States  25,  n.  20  ("A  claimant  is  not  powerless  ...  to  obtain  a  speedy  reso- 
lution of  the  question  of  his  interest  in  the  property.  If  delay  m  processing 
the  administrative  petition  for  remission  or  mitigation  is  unreasonable 
under  the  Administrative  Procedure  Act,  the  claimant  may  file  suit  to 
attempt  to  compel  the  agency  to  act.  5  U.  S.  C.  706(1)") 


254  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

VASQUEZ,  WARDEN  v.  HILLERY 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  NINTH  CIRCUIT 

No.  84-836.     Argued  October  15,  1985— Decided  January  14,  1986 

In  1962,  a  California  grand  jury  indicted  respondent  for  murder.  Before 
trial  in  California  Superior  Court,  the  judge  refused  to  quash  the  indict- 
ment on  the  alleged  ground  that  it  had  been  issued  by  a  grand  jury  from 
which  blacks  had  been  systematically  excluded.  Respondent  was  subse- 
quently convicted  of  first-degree  murder.  After  unsuccessfully  pursu- 
ing appeals  and  collateral  relief  in  the  state  courts  for  the  next  16  years, 
respondent  filed  a  habeas  corpus  petition  in  Federal  District  Court, 
again  raising  his  equal  protection  challenge  to  the  grand  jury  that  in- 
dicted htm.  The  District  Court  upheld  the  challenge,  and  the  Court  of 
Appeals  affirmed. 
Held: 

1.  Respondent's  obligation  to  exhaust  state  remedies  before  seeking 
collateral  relief  in  federal  court  was  not  circumvented  by  the  fact  that  the 
District  Court,  pursuant  to  a  valid  exercise  of  its  power  to  expand  the 
record,  directed  the  parties  to  present  supplemental  evidence  (consisting 
of  affidavits  and  a  computer  analysis  assessing  the  mathematical  possibil- 
ity that  chance  or  accident  could  have  accounted  for  the  exclusion  of 
blacks  from  the  grand  jury),  where  such  evidence  did  not  fundamentally 
alter  the  claim  already  considered  by  the  state  courts.      Pp.  257-260. 

2.  The  longstanding  rule  requiring  reversal  of  the  conviction  of  a  de- 
fendant indicted  by  a  grand  jury  from  which  members  of  his  own  race 
were  systematically  excluded  will  not  be  abandoned  in  this  case  on  the 
theory  that  discrimination  in  the  grand  jury  amounted  to  harmless  error 
and  that  respondent's  conviction  after  a  fair  trial  purged  any  taint  attrib- 
utable to  the  grand  jury  process.     Intentional  discrimination  in  the  se- 
lection of  grand  jurors  is  a  grave  constitutional  trespass,  possible  only 
under  color  of  state  authority,  and  wholly  within  the  State's  power  to 
prevent.     Even  if  the  grand  jury's  determination  of  probable  cause  to 
believe  that  a  defendant  has  committed  a  crime  is  confirmed  in  hindsight 
by  a  conviction  on  the  indicted  offense,  that  confirmation  does  not  sug- 
gest that  discrimination  did  not  impermissibly  infect  the  framing  of  the 
indictment  and,  consequently,  the  nature  or  existence  of  the  proceedings 
to  come.     And  just  as  a  conviction  is  void  under  the  Equal  Protection 
Clause  if  the  prosecutor  deliberately  charged  the  defendant  on  account  of 


trt  ' 


256  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Before  trial  in  Superior  Court,  respondent  moved  to  quash 
the  indictment  on  the  ground  that  it  had  been  issued  by  a 
grand  jury  from  which  blacks  had  been  systematically  ex- 
cluded. A  hearing  on  respondent's  motion  was  held  by 
Judge  Meredith  Wingrove,  who  was  the  sole  Superior  Court 
Judge  in  the  county  and  had  personally  selected  all  grand 
juries,  including  the  one  that  indicted  respondent,  for  the 
previous  seven  years.  Absolving  himself  of  any  discrimina- 
tory intent,  Judge  Wingrove  refused  to  quash  the  indict- 
ment.1 Respondent  was  subsequently  convicted  of  first- 
degree  murder. 

For  the  next  16  years,  respondent  pursued  appeals  and  col- 
lateral relief  in  the  state  courts,  raising  at  every  opportunity 
his  equal  protection  challenge  to  the  grand  jury  that  indicted 
him.2  Less  than  one  month  after  the  California  Supreme 
Court  foreclosed  his  final  avenue  of  state  relief  in  1978,  re- 
spondent filed  a  petition  for  a  writ  of  habeas  corpus  in  federal 
court,  raising  that  same  challenge.  The  District  Court  con- 
cluded that  respondent  had  established  discrimination  in  the 
grand  jury,  and  granted  the  writ.  See  Hillery  v.  Pulley, 
563  F.  Supp.  1228  (ED  Cal.  1983).  The  Court  of  Appeals 


1  Three  thorough  and  well-reasoned  opinions  of  the  District  Court  dis- 
cuss in  detail  the  evidence  adduced  at  the  hearing,  as  well  as  other  aspects 
of  the  case.     See  Hillery  v.  Pulley,  563  F.  Supp.  1228  (ED  Cal.  1983); 
Hillery  v.  Pulley,  533  F.  Supp.  1189  (ED  Cal.  1982);  Hillery  v.  Sumner, 
496  F.  Supp.  632  (ED  Cal.  1980).     We  repeat  here  only  those  portions  rele- 
vant to  the  issues  before  the  Court. 

2  See  People  v.  Hillery,  34  Cal.  Rptr.  853,  386  P.  2d  477  (1963)  (affirm- 
ing conviction;  rejecting  discrimination  claim);  People  v.  Hillery,  62  Cal.  2d 
692,  401  P.  2d  382  (1965)  (on  rehearing,  rejecting  discrimination  claim;  re- 
versing sentence),  cert,  denied,  386  U.  S.  938  (1967);  People  v.  Hillery,  65 
Cal.  2d  795,  423  P.  2d  208  (1967)  (after  remand,  affirming  sentence),  cert, 
denied,  389  U.  S.  986  (1968);  In  re  Hillery,  71  Cal.  2d  857,  457  P.  2d  565 
(1969)  (on  original  petition  for  habeas  corpus,  reversing  sentence);  People 
v.  Hillery,  10  Cal.  3d  897,  519  P.  2d  572  (1974)  (after  remand,  reducing 
sentence);  In  re  Hillery,  Crim.  No.  20424  (Cal.  1978)  (affirming  denial  of 
state  habeas  corpus). 


VASQUEZ  v.  KILLER Y  257 

254  Opinion  of  the  Court 

affirmed,  733  F.  2d  644  (CA9  1984),  and  we  granted  certio- 
rari,  470  U.  S.  1026  (1985). 

II 

As  a  threshold  matter,  we  turn  to  petitioner's  contention 
that  respondent  has  circumvented  his  obligation  to  exhaust 
state  remedies  before  seeking  collateral  relief  in  federal 
court.  28  U.  S.  C.  §2254(b).  The  exhaustion  issue  had  its 
genesis  in  this  case  when  the  Federal  District  Judge  saw  a 
need  to  "supplement  and  clarify"  the  state-court  record  pre- 
sented for  review.  Record,  Doc.  No.  8,  p.  2.  Upon  author- 
ity of  28  U.  S.  C.  §2254  Rule  7,  the  judge  directed  the  State 
to  provide  more  figures  "demonstrating  what  portion  of  the 
Black  population  in  Kings  County  was  eligible  for  grand  jury 
service."  Record,  Doc.  No.  8,  p.  3.  He  also  directed  the 
parties  to  present  their  views  regarding  the  application  of 
statistical  probability  analysis  to  the  facts  of  this  case,  to 
assist  him  in  "focus[ing]  on  the  likelihood  that  chance  or  acci- 
dent alone  could  account  for  the  exclusion  of  a  group  from 
grand  jury  service."  Ibid.  Petitioner  objects  that  the  sub- 
missions made  in  response  to  the  judge's  order  "drastically" 
altered  respondent's  claim  and  rendered  it  unsuitable  for  fed- 
eral habeas  review  without  prior  consideration  by  the  state 
courts.  Brief  for  Petitioner  81. 

The  exhaustion  doctrine  seeks  to  afford  the  state  courts  a 
meaningful  opportunity  to  consider  allegations  of  legal  error 
without  interference  from  the  federal  judiciary.  Rose  v, 
Lundy,  455  U.  S.  509,  515  (1982).  Under  standards  estab- 
lished by  this  Court,  a  state  prisoner  may  initiate  a  federal 
habeas  petition  "[o]nly  if  the  state  courts  have  had  the  first 
opportunity  to  hear  the  claim  sought  to  be  vindicated  .  .  .  ." 
Picard  v.  Connor,  404  U.  S.  270,  276  (1971).  "It  follows,  of 
course,  that  once  the  federal  claim  has  been  fairly  presented 
to  the  state  courts,  the  exhaustion  requirement  is  satisfied." 
Id.,  at  275;  see  also  Humphrey  v.  Cady,  405  U.  S.  504, 
516-517,  n.  18  (1972).  We  have  never  held  that  presentation 


258  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

of  additional  facts  to  the  district  court,  pursuant  to  that 
court's  directions,  evades  the  exhaustion  requirement  when 
the  prisoner  has  presented  the  substance  of  his  claim  to  the 
state  courts.  See  Picard,  supra,  at  278. 

Rule  7(b)  permits  a  federal  district  court  in  a  habeas  pro- 
ceeding to  expand  the  existing  record  to  "include,  without 
limitation,  .  .  .  documents,  exhibits,  and  answers  under  oath, 
if  so  directed,  to  written  interrogatories  propounded  by  the 
judge.  Affidavits  may  be  submitted  and  considered  as  a 
part  of  the  record."  In  this  case,  the  District  Court  sought 
to  clarify  the  relevant  facts,  an  endeavor  wholly  consistent 
with  Rule  7  and  the  purpose  of  the  writ.  See  Townsend  v. 
Sain,  372  U.  S.  293,  313  (1963).  The  sole  question  here  is 
whether  this  valid  exercise  of  the  court's  power  to  expand 
the  record  had  the  effect  of  undermining  the  policies  of  the 
exhaustion  requirement. 

Several  affidavits  challenged  here  as  "new"  evidence  sup- 
ported respondent's  allegations  that  no  black  had  ever  served 
on  the  grand  jury  in  Kings  County  and  that  qualified  blacks  in 
the  county  were  available  to  serve,  which  he  had  pressed  in 
his  pretrial  motion  to  quash  in  Superior  Court,  App.  28-30, 
and   throughout    the    state    proceedings.       The    California 
Supreme  Court  found  that  the  total  absence  of  blacks  from 
the  grand  jury  in  the  history  of  Kings  County  was  an  undis- 
puted fact.     People  v.  Hillery,  62  Cal.  2d  692,  709,  401  P.  2d 
382,  392  (1965),  cert,  denied,  386  U.  S.  938  (1967).     That  fact 
was  entitled,  therefore,  to  a  presumption  of  correctness  on 
federal  review.     Sumner  v.  Mata,  449  U.  S.  539,  545-546 
(1981);  see  Hillery  v.  Pulley,  533  F.  Supp.  1189,  1201,  n.  25 
(ED  Cal.   1982).     The  California  Supreme  Court  also  dis- 
cussed Judge  Wingrove's  consideration  of  blacks'  qualifica- 
tions, and  found  that  blacks  had  served  as  petit  jurors,  62 
Cal.  2d,  at  710,  401  P.  2d,  at  392-393,  minimum  eligibility 
requirements  for  which  were  substantially  the  same  as  for 
grand  jurors,  see  563  F.  Supp.,  at  1245;  Mar,  The  California 
Grand  Jury:  Vestige  of  Aristocracy,    1  Pac.    L.  J.    36,    40 


VASQUEZ  u  HILLERY  259 

254  Opinion  of  the  Court 

(1970).  Consequently,  the  additional  affidavits  introduced 
no  claim  upon  which  the  state  courts  had  not  passed. 

The  remaining  "new"  evidence  under  attack,  a  computer 
analysis  submitted  in  response  to  the  District  Court's  re- 
quest, assessed  the  mathematical  probability  that  chance  or 
accident  could  have  accounted  for  the  exclusion  of  blacks 
from  the  Kings  County  grand  jury  over  the  years  at  issue.3 
Petitioner  would  have  us  conclude  that  the  "sophisticated 
computer  techniques"  rendered  respondent's  claim  a  "wholly 
different  animal. "  Brief  for  Petitioner  80-81 .  These  statis- 
tical estimates,  however,  added  nothing  to  the  case  that  this 
Court  has  not  considered  intrinsic  to  the  consideration  of  any 
grand  jury  discrimination  claim.  As  early  as  1942,  this 
Court  rejected  a  contention  that  absence  of  blacks  on  the 
grand  jury  was  insufficient  to  support  an  inference  of  dis- 
crimination, summarily  asserting  that  "chance  or  accident 
could  hardly  have  accounted  for  the  continuous  omission  of 
negroes  from  the  grand  jury  lists  for  so  long  a  period  as 
sixteen  years  or  more."  Hill  v.  Texas,  316  U.  S.  400,  404 
(1942).  This  proposition,  which  the  Court  derived  solely  on 
the  basis  of  judicial  intuition,  is  precisely  what  respondent 
sought  to  establish  by  methods  now  considered  somewhat 
more  reliable. 

More  recently,  in  reviewing  a  habeas  corpus  proceeding, 
this  Court  independently  applied  general  statistical  princi- 
ples to  the  evidence  on  the  record  in  order  to  assess  the  role 
of  chance  in  the  exclusion  of  Mexican-Americans  from  a 
grand  jury  in  Texas.  Castaneda  v.  Partida,  430  U.  S.  482, 

3  The  statistical  expert  concluded  that  if  the  grand  juries  selected  in 
Kings  County  between  1900  and  1962  had  been  chosen  by  chance,  the  prob- 
ability that  no  black  would  have  been  selected  was  57  in  100,000  million. 
Although  the  State  made  no  attempt  to  rebut  this  testimony,  the  District 
Court  questioned  the  reliability  of  the  expert's  analysis,  performed  its  own 
analysis  of  the  data,  and  ultimately  accepted  the  expert's  conclusions  only 
for  the  7-year  period  of  Judge  Wingrove's  tenure,  which  yielded  a  probabil- 
ity of  2  in  1,000  that  the  phenomenon  was  attributable  to  chance.  563  F. 
Supp.,  at  1241-1244. 


260  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

496-497,  n.  17  (1977).  Form  would  indeed  triumph  over  sub- 
stance were  we  to  allow  the  question  of  exhaustion  to  turn 
on  whether  a  federal  judge  has  relied  on  educated  conjecture 
or  has  sought  out  a  more  sophisticated  interpretative  aid  to 
accomplish  the  same  objective. 

We  emphasize  that  the  District  Court's  request  for  further 
information  was  evidently  motivated  by  a  responsible  con- 
cern that  it  provide  the  meaningful  federal  review  of  con- 
stitutional claims  that  the  writ  of  habeas  corpus  has  contem- 
plated throughout  its  history.     533  F.  Supp.,  at  1202-1203; 
see  Townsend  v.  Sam,  supra,  at  311-312.     Respondent  had 
initially  submitted  only  the  evidence  that  had  been  con- 
sidered in  state  court,  and  subsequently  complied  with  the 
court's  request  by  furnishing  materials  no  broader  than  nec- 
essary to  meet  the  needs  of  the  court.     Accordingly,  the  cir- 
cumstances present  no  occasion  for  the  Court  to  consider  a 
case  in  which  the  prisoner  has  attempted  to  expedite  federal 
review  by  deliberately  withholding  essential  facts  from  the 
state  courts.     We  hold  merely  that  the  supplemental  evi- 
dence presented  by  respondent  did  not  fundamentally  alter 
the  legal  claim  already  considered  by  the  state  courts,  and, 
therefore,  did  not  require  that  respondent  be  remitted  to 
state  court  for  consideration  of  that  evidence. 

Ill 

On  the  merits,  petitioner  urges  this  Court  to  find  that  dis- 
crimination in  the  grand  jury  amounted  to  harmless  error  in 
this  case,  claiming  that  the  evidence  against  respondent  was 
overwhelming  and  that  discrimination  no  longer  infects  the 
selection  of  grand  juries  in  Kings  County.  Respondent's 
conviction  after  a  fair  trial,  we  are  told,  purged  any  taint 
attributable  to  the  indictment  process.  Our  acceptance  of 
this  theory  would  require  abandonment  of  more  than  a  cen- 
tury of  consistent  precedent. 

In  1880,  this  Court  reversed  a  state  conviction  on  the 
ground  that  the  indictment  charging  the  offense  had  been 


VASQUEZ  u  HILLERY  261 

254  Opinion  of  the  Court 

issued  by  a  grand  jury  from  which  blacks  had  been  excluded. 
We  reasoned  that  deliberate  exclusion  of  blacks  "is  practi- 
cally 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." 
Strauder  v.  West  Virginia,  100  U.  S.  303,  308  (1880). 

Thereafter,  the  Court  has  repeatedly  rejected  all  argu- 
ments that  a  conviction  may  stand  despite  racial  discrimina- 
tion in  the  selection  of  the  grand  jury.  See,  e.  g. ,  Neal  v. 
Delaware,  103  U.  S.  370,  396  (1881);  Bush  v.  Kentucky,  107 
U.  S.  110  (1883);  Gibson  v.  Mississippi,  162  U.  S.  565  (1896); 
Carter  v.  Texas,  177  U.  S.  442  (1900);  Rogers  v.  Alabama, 
192  U.  S.  226  (1904);  Pierre  v.  Louisiana,  306  U.  S.  354 
(1939);  Smith  v.  Texas,  311  U.  S.  128  (1940);  Hill  v.  Texas, 
supra;  Cassell  v.  Texas,  339  U.  S.  282  (1950);  Reece  v.  Geor- 
gia, 350  U.  S.  85  (1955);  Eubanks  v.  Louisiana,  356  U.  S. 
584  (1958);  Arnold  v.  North  Carolina,  376  U.  S.  773  (1964); 
Alexander  v.  Louisiana,  405  U.  S.  625  (1972).  Only  six 
years  ago,  the  Court  explicitly  addressed  the  question 
whether  this  unbroken  line  of  case  law  should  be  reconsid- 
ered in  favor  of  a  harmless-error  standard,  and  determined 
that  it  should  not.  Rose  v.  Mitchell,  443  U.  S.  545  (1979). 4 

4  The  dissent  attempts  to  lessen  the  precedential  weight  of  Mitchell  by 
characterizing  it  as  an  advisory  opinion.  Post,  at  270,  n.  4.  In  Part  II 
of  Mitchell,  three  Justices  reaffirmed  the  principle  that  grand  jury  dis- 
crimination requires  reversal  of  the  conviction  in  all  cases;  in  Parts  III  and 
IV,  they  concluded  that  the  prisoner  had  failed  to  make  out  a  prima  facie 
case  of  discrimination.  443  U.  S.,  at  574.  Two  additional  Justices  explic- 
itly joined  Part  II,  but  dissented  from  the  judgment  because  they  believed 
that  discrimination  had  been  established,  and  that  the  conviction  must, 
therefore,  be  reversed.  Id.,  at  588  (WHITE,  J.,  joined  by  STEVENS,  J., 
dissenting).  The  dissent  here  offers  a  citation  to  Gregg  v.  Georgia,  428 
U.  S.  153,  169,  n.  15  (1976)  (opinion  of  Stewart,  POWELL,  and  STEVENS, 
JJ.),  in  support  of  its  unprecedented  argument  that  a  statement  of  legal 
opinion  joined  by  five  Justices  of  this  Court  does  not  carry  the  force  of  law. 
The  cited  passage,  however,  refers  only  to  the  manner  in  which  one  may 
discern  a  single  holding  of  the  Court  in  cases  in  which  no  opinion  on  the 


262  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

We  reaffirmed  our  conviction  that  discrimination  on  the  basis 
of  race  in  the  selection  of  grand  jurors  "strikes  at  the  funda- 
mental values  of  our  judicial  system  and  our  society  as  a 
whole,"  and  that  the  criminal  defendant's  right  to  equal  pro- 
tection of  the  laws  has  been  denied  when  he  is  indicted  by  a 
grand  jury  from  which  members  of  a  racial  group  purpose- 
fully have  been  excluded.  Id.,  at  556. 

Petitioner  argues  here  that  requiring  a  State  to  retry  a 
defendant,  sometimes  years  later,  imposes  on  it  an  unduly 
harsh  penalty  for  a  constitutional  defect  bearing  no  relation 
to  the  fundamental  fairness  of  the  trial.  Yet  intentional  dis- 
crimination in  the  selection  of  grand  jurors  is  a  grave  con- 
stitutional trespass,  possible  only  under  color  of  state  author- 
ity, and  wholly  within  the  power  of  the  State  to  prevent. 
Thus,  the  remedy  we  have  embraced  for  over  a  century — the 
only  effective  remedy  for  this  violation5— is  not  dispropor- 
tionate to  the  evil  that  it  seeks  to  deter.  If  grand  jury  dis- 
crimination becomes  a  thing  of  the  past,  no  conviction 
ever  again  be  lost  on  account  of  it. 


issue  in  question  has  garnered  the  support  of  a  majority.  That  discussion 
is  inapplicable  to  Part  II  of  Mitchell,  to  which  five  Justices  expressly 
subscribed. 

6  As  we  pointed  out  in  Rose  v.  Mitchell,  alternative  remedies  are  in- 
effectual.    Federal  law  provides  a  criminal  prohibition  against  discrimina- 
tion in  the  selection  of  grand  jurors,  18  U.  S.  C.  §  243,  but  according  to  sta- 
tistics compiled  by  the  Administrative  Office  of  the  United  States  Courts, 
that  section  has  not  been  the  basis  for  a  single  prosecution  in  the  past  nine 
years.     With  respect  to  prior  years,  for  which  precise  information  is  not 
available,  we  have  been  unable  to  find  evidence  of  any  prosecution  or  con- 
viction under  the  statute  in  the  last  century.     The  other  putative  remedy 
for  grand  jury  discrimination  is  42  U.  S.  C.  §  1983,  which,  in  theory,  allows 
redress  for  blacks  who  have  been  excluded  from  grand  jury  service.     See 
Carter  v.  Jury  Comm'n  of  Greene  County,  396  U.  S.  320  (1970).      These 
suits  are  also  extremely  rare,  undoubtedly  because  the  potential  plaintiffs, 
eligible  blacks  not  called  for  grand  jury  service,  are  often  without  knowl- 
edge of  the  discriminatory  practices  and  without  incentive  to  lau'ich  costly 
legal  battles  to  stop  them. 


VASQUEZ  v.  HILLERY  263 

254  Opinion  of  the  Court 

Nor  are  we  persuaded  that  discrimination  in  the  grand  jury 
has  no  effect  on  the  fairness  of  the  criminal  trials  that  result 
from  that  grand  jury's  actions.  The  grand  jury  does  not  de- 
termine only  that  probable  cause  exists  to  believe  that  a  de- 
fendant committed  a  crime,  or  that  it  does  not.  In  the  hands 
of  the  grand  jury  lies  the  power  to  charge  a  greater  offense  or 
a  lesser  offense;  numerous  counts  or  a  single  count;  and  per- 
haps most  significant  of  all,  a  capital  offense  or  a  noncapital 
offense— all  on  the  basis  of  the  same  facts.  Moreover,  "[t]he 
grand  jury  is  not  bound  to  indict  in  every  case  where  a  con- 
viction can  be  obtained."  United  States  v.  Ciambrone,  601 
F.  2d  616,  629  (CA2  1979)  (Friendly,  J.,  dissenting).  Thus, 
even  if  a  grand  jury's  determination  of  probable  cause  is  con- 
firmed in  hindsight  by  a  conviction  on  the  indicted  offense, 
that  confirmation  in  no  way  suggests  that  the  discrimination 
did  not  impermissibly  infect  the  framing  of  the  indictment 
and,  consequently,  the  nature  or  very  existence  of  the  pro- 
ceedings to  come. 

When  constitutional  error  calls  into  question  the  objectiv- 
ity of  those  charged  with  bringing  a  defendant  to  judgment,  a 
reviewing  court  can  neither  indulge  a  presumption  of  regular- 
ity nor  evaluate  the  resulting  harm.  Accordingly,  when  the 
trial  judge  is  discovered  to  have  had  some  basis  for  rendering 
a  biased  judgment,  his  actual  motivations  are  hidden  from 
review,  and  we  must  presume  that  the  process  was  impaired. 
See  Tumey  v.  Ohio,  273  U.  S.  510,  535  (1927)  (reversal  re- 
quired when  judge  has  financial  interest  in  conviction,  de- 
spite lack  of  indication  that  bias  influenced  decisions).  Simi- 
larly, -when  a  petit  jury  has  been  selected  upon  improper 
criteria  or  has  been  exposed  to  prejudicial  publicity,  we  have 
required  reversal  of  the  conviction  because  the  effect  of  the 
violation  cannot  be  ascertained.  See  Davis  v.  Georgia,  429 
U.  S.  122  (1976)  (per  curiam);  Sheppard  v.  Maxwell,  384 
U.  S.  333,  351-352  (1966).  Like  these  fundamental  flaws, 
which  never  have  been  thought  harmless,  discrimination  in 
the  grand  jury  undermines  the  structural  integrity  of  the 


264  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

criminal  tribunal  itself,  and  is  not  amenable  to  harmless-error 
review,6 

Just  as  a  conviction  is  void  under  the  Equal  Protection 
Clause  if  the  prosecutor  deliberately  charged  the  defendant 
on  account  of  his  race,  see  United  States  v.  Batchelder,  442 
U.  S.  114,  125,  n.  9  (1979),  a  conviction  cannot  be  understood 
to  cure  the  taint  attributable  to  a  charging  body  selected 
on  the  basis  of  race.  Once  having  found  discrimination  in 
the  selection  of  a  grand  jury,  we  simply  cannot  know  that  the 
need  to  indict  would  have  been  assessed  in  the  same  way  by  a 
grand  jury  properly  constituted.  The  overriding  imperative 
to  eliminate  this  systemic  flaw  in  the  charging  process,  as 
well  as  the  difficulty  of  assessing  its  effect  on  any  given  de- 
fendant, requires  our  continued  adherence  to  a  rule  of  man- 
datory reversal. 

The  opinion  of  the  Court  in  Mitchell  ably  presented  other 
justifications,  based  on  the  necessity  for  vindicating  Four- 
teenth Amendment  rights,  supporting  a  policy  of  automatic 
reversal  in  cases  of  grand  jury  discrimination.  That  analysis 
persuasively  demonstrated  that  the  justifications  retain  their 
validity  in  modern  times,  for  "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. "  443  U.  S. ,  at  558-559.  The  six  years  since  Mitchell 
have  given  us  no  reason  to  doubt  the  continuing  truth  of  that 
observation. 

IV 

The  dissent  propounds  a  theory,  not  advanced  by  any 
party,  which  would  condition  the  grant  of  relief  upon  the  pas- 
sage of  time  between  a  conviction  and  the  filing  of  a  petition 
for  federal  habeas  corpus,  depending  upon  the  ability  of  a 
State  to  obtain  a  second  conviction.  Sound  jurisprudence 

6  JUSTICE  WHITE  does  not  join  m  the  foregoing  paragraph. 


VASQUEZ  v.  HILLERY  265 

254  Opinion  of  the  Court 

counsels  against  our  adoption  of  that  approach  to  habeas  cor- 
pus claims. 

The  Habeas  Corpus  Rules  permit  a  State  to  move  for  dis- 
missal of  a  habeas  petition  when  it  "has  been  prejudiced  in  its 
ability  to  respond  to  the  petition  by  delay  in  its  filing."  28 
U.  S.  C.  §2254  Rule  9(a).  Indeed,  petitioner  filed  such  a 
motion  in  this  case,  and  it  was  denied  because  the  District 
Court  found  that  no  prejudicial  delay  had  been  caused  by  re- 
spondent. Hillery  v.  Sumner,  496  F.  Supp.  632,  637  (ED 
Cal.  1980).  Congress  has  not  seen  fit,  however,  to  provide 
the  State  with  an  additional  defense  to  habeas  corpus  peti- 
tions based  on  the  difficulties  that  it  will  face  if  forced  to 
retry  the  defendant.  The  Judicial  Conference  Advisory 
Committee  on  Criminal  Rules  has  drafted  a  proposed  amend- 
ment to  Rule  9(a),  which  would  permit  dismissal  of  a  habeas 
corpus  petition  upon  a  demonstration  that  the  State  has  been 
prejudiced,  either  in  defending  against  the  prisoner's  federal 
claim  or  in  bringing  the  prisoner  to  trial  again  should  the  fed- 
eral claim  prove  meritorious.  52  U.  S.  L.  W.  2145  (1983). 
That  proposal  has  not  been  adopted.  And,  despite  many  at- 
tempts in  recent  years,  Congress  has  yet  to  create  a  statute 
of  limitations  for  federal  habeas  corpus  actions.  See  L. 
Yackle,  Postconviction  Remedies  §  19  (Supp.  1985)  (describ- 
ing relevant  bills  introduced  in  past  several  Congresses). 
We  should  not  lightly  create  a  new  judicial  rule,  in  the  guise 
of  constitutional  interpretation,  to  achieve  the  same  end. 

V 

Today's  decision  is  supported,  though  not  compelled,  by 
the  important  doctrine  of  stare  decisis,  the  means  by  which 
we  ensure  that  the  law  will  not  merely  change  erratically,  but 
will  develop  in  a  principled  and  intelligible  fashion.  That 
doctrine  permits  society  to  presume  that  bedrock  principles 
are  founded  in  the  law  rather  than  in  the  proclivities  of  indi- 
viduals, and  thereby  contributes  to  the  integrity  of  our  con- 
stitutional system  of  government,  both  in  appearance  and  in 


266  OCTOBER  TERM,  1985 

O'CONNOR,  J.,  concurring  in  judgment  474  U.  S. 

fact.     While  stare  decisis  is  not  an  inexorable  command,  the 
careful   observer  will   discern   that   any   detours   from   the 
straight  path  of  stare  decisis  in  our  past  have  occurred  for 
articulable  reasons,  and  only  when  the  Court  has  felt  obliged 
"to  bring  its  opinions  into  agreement  with  experience  and 
with  facts  newly  ascertained."     Burnet  v.  Coronado  Oil  & 
Gas  Co.,  285  U.  S.  393,  412  (1932)  (Brandeis,  J.,  dissenting). 
Our  history  does  not  impose  any  rigid  formula  to  constrain 
the  Court  in  the  disposition  of  cases.      Rather,  its  lesson  is 
that  every  successful  proponent  of  overruling  precedent  has 
borne  the  heavy  burden  of  persuading  the  Court  that  changes 
in  society  or  in  the  law  dictate  that  the  values  served  by  stare 
decisis  yield  in  favor  of  a  greater  objective.     In  the  case  of 
grand  jury  discrimination,  we  have  been  offered  no  reason 
to  believe  that  any  such  metamorphosis  has  rendered  the 
Court's  long  commitment  to  a  rule  of  reversal  outdated,  ill- 
founded,  unworkable,  or  otherwise  legitimately  vulnerable  to 
serious  reconsideration.     On  the  contrary,  the  need  for  such 
a  rule  is  as  compelling  today  as  it  was  at  its  inception. 

The  judgment  of  the  Court  of  Appeals,   accordingly,   is 
affirmed. 

It  is  so  ordered. 

JUSTICE  O'CONNOR,  concurring  hi  the  judgment. 

This  Court  has  long  held  that  upon  proof  of  systematic  ex- 
clusion of  blacks  from  a  grand  jury  issuing  an  indictment,  the 
admittedly  costly  remedy  of  reversal  of  a  conviction  there- 
after obtained  through  a  fair  trial  is  necessary  in  order  to 
eradicate  and  deter  such  discrimination.  Not  until  Rose  v. 
Mitchell,  443  U.  S.  545  (1979),  however,  did  the  Court 
squarely  address  the  question  whether,  given  the  availability 
of  this  remedy  on  direct  review,  it  is  also  necessary  to  make 
the  same  remedy  available  when  the  petitioner  seeks  to 
renew  his  claim  of  discriminatory  exclusion  on  federal  habeas 
corpus  review.  See  id.,  at  582  (POWELL,  J.,  concurring  in 
judgment). 

I  share  the  view  expressed  by  JUSTICE  POWELL  in  Rose:  a 
petitioner  who  has  been  afforded  by  the  state  courts  a  full 


VASQUEZ  v.  HILLERY  267 

254  POWELL,  J.,  dissenting 

and  fair  opportunity  to  litigate  the  claim  that  blacks  were  dis- 
criminatorily  excluded  from  the  grand  jury  which  issued  the 
indictment  should  be  foreclosed  from  relitigating  that  claim 
on  federal  habeas.  The  incremental  value  that  continued 
challenges  may  have  in  rooting  out  and  deterring  such  dis- 
crimination is  outweighed  by  the  unique  considerations  that 
apply  when  the  habeas  writ  is  invoked.  The  history  and  pur- 
poses of  the  writ,  as  well  as  weighty  finality  interests  and 
considerations  of  federalism,  counsel  against  permitting  a  pe- 
titioner to  renew  on  habeas  a  challenge  which  does  not  under- 
mine the  justness  of  his  trial,  conviction,  or  incarceration. 
See  id.,  at  579-588. 

In  this  case,  the  District  Court  held  that  respondent  was 
not  given  a  full  and  fair  hearing  on  his  discriminatory  exclu- 
sion claim  in  state  court.  See  Hillery  v.  Pulley,  563  F. 
Supp.  1228  (ED  Cal.  1983).  That  holding  was  not  altered  on 
appeal,  733  F.  2d  644  (CA9  1984),  nor  is  it  challenged  by  the 
petitioner  in  this  Court.  Respondent's  claim  was  therefore 
cognizable  in  federal  habeas  proceedings.  Because  I  am  not 
convinced  that  a  sufficiently  compelling  case  has  been  made 
for  reversing  this  Court's  precedents  with  respect  to  the 
remedy  applicable  to  properly  cognizable  claims  of  discrimi- 
natory exclusion  of  grand  jurors,  I  concur  in  the  judgment  of 
the  Court. 

JUSTICE  POWELL,  with  whom  THE  CHIEF  JUSTICE  and 
JUSTICE  REHNQUIST  join,  dissenting. 

Respondent,  a  black  man,  was  indicted  by  a  grand  jury 
having  no  black  members  for  the  stabbing  murder  of  a  15- 
year-old  girl.  A  petit  jury  found  respondent  guilty  of  that 
charge  beyond  a  reasonable  doubt,  in  a  trial  the  fairness  of 
which  is  unchallenged  here.1  Twenty-three  years  later,  we 
are  asked  to  grant  respondent's  petition  for  a  writ  of  habeas 

1  Respondent  was  thrice  sentenced  to  death  for  this  murder.  See  Peo- 
ple v.  Hillery,  10  Cal.  3d  897,  519  P.  2d  572  (1974);  ante,  at  256,  n.  2.  That 
sentence  was  ultimately  reduced  to  life  imprisonment  because  the  Califor- 
nia Supreme  Court  found  that  imposition  of  the  death  penalty  was  in  all 
cases  inconsistent  with  the  California  Constitution.  Ibid. 


268  OCTOBER  TERM,  1985 

POWELL,  J.,  dissenting  474  U.  S. 

corpus— and  thereby  require  a  new  trial  if  that  is  still  feasi- 
ble—on the  ground  that  blacks  were  purposefully  excluded 
from  the  grand  jury  that  indicted  him.  It  is  undisputed  that 
race  discrimination  has  long  since  disappeared  from  the 
grand  jury  selection  process  in  Kings  County,  California.  It 
is  undisputed  that  a  grand  jury  that  perfectly  represented 
Kings  County's  population  at  the  time  of  respondent's  indict- 
ment would  have  contained  only  one  black  member.2  Yet 
the  Court  holds  that  respondent's  petition  must  be  granted, 
and  that  respondent  must  be  freed  unless  the  State  is  able  to 
reconvict,  more  than  two  decades  after  the  murder  that  led 
to  his  incarceration. 

It  is  difficult  to  reconcile  this  result  with  a  rational  system 
of  justice.  The  Court  nevertheless  finds  its  decision  com- 
pelled by  a  century  of  precedent  and  by  the  interests  of  re- 
spondent and  of  society  in  ending  race  discrimination  in  the 
selection  of  grand  juries.  I  dissent  for  two  reasons.  First, 
in  my  view,  any  error  in  the  selection  of  the  grand  jury  that 
indicted  respondent  is  constitutionally  harmless.  Second, 
even  assuming  that  the  harmless-error  rule  does  not  apply, 
reversal  of  respondent's  conviction  is  an  inappropriate  rem- 
edy for  the  wrong  that  prompts  this  case. 

I 

The  Court  concludes  that  the  harmless-error  rule  does  not 
apply  to  claims  of  grand  jury  discrimination.  Ante,  at  261. 
This  conclusion  is  said  to  follow  from  a  line  of  cases  going 
back  over  100  years.  Ante,  at  260-261.  In  my  view,  it  fol- 
lows from  a  misapplication  of  the  doctrine  of  stare  decisis. 

Adhering  to  precedent  "is  usually  the  wise  policy,  because 
in  most  matters  it  is  more  important  that  the  applicable  rule 
of  law  be  settled  than  that  it  be  settled  right."  Burnet  v. 

2  According  to  1960  census  figures,  4.7%  of  Kings  County's  population 
over  age  21  was  black.  Hillery  v.  Pulley,  563  F.  Supp.  1228,  1232  (ED 
Gal.  1983).  Respondent's  grand  jury  consisted  of  19  individuals,  all  of 
whom  were  white.  Id.,  at  1231. 


VASQUEZ  v.  HILLERY  269 

254  POWELL,  J.,  dissenting 

Coronado  Oil  &  Gas  Co.,  285  U.  S.  393,  406  (1932)  (Brandeis, 
J.,  dissenting).  Accordingly,  "any  departure  from  the  doc- 
trine of  stare  decisis  demands  special  justification."  Arizona 
v.  Rumsey,  467  U.  S.  203,  212  (1984);  Garcia  v.  San  Antonio 
Metropolitan  Transit  Authority,  469  U.  S.  528,  559  (1985) 
(POWELL,  J.,  dissenting).  Nevertheless,  when  governing 
decisions  are  badly  reasoned,  or  conflict  with  other,  more 
recent  authority,  the  Court  "has  never  felt  constrained  to 
follow  precedent."  Smith  v.  Allwright,  321  U.  S.  649,  665 
(1944).  Instead,  particularly  where  constitutional  issues  are 
involved,  "[t]his  Court  has  shown  a  readiness  to  correct  its 
errors  even  though  of  long  standing."  United  States  v. 
Bamett,  376  U.  S.  681,  699  (1964).  In  this  case,  the  Court 
misapplies  stare  decisis  because  it  relies  only  on  decisions 
concerning  grand  jury  discrimination.  There  is  other 
precedent,  including  important  cases  of  more  recent  vintage 
than  those  cited  by  the  Court,  that  should  control  this  case. 
Those  cases  hold,  or  clearly  imply,  that  a  conviction  should 
not  be  reversed  for  constitutional  error  where  the  error  did 
not  affect  the  outcome  of  the  prosecution. 

In  Chapman  v.  California,  386  U.  S.  18  (1967),  the  Court 
held  that  a  trial  judge's  improper  comment  on  the  defendant's 
failure  to  testify — a  clear  violation  of  the  Fifth  and  Four- 
teenth Amendments— was  not  a  proper  basis  for  reversal  if 
harmless.  Id.,  at  21-24.  Since  Chapman,  "the  Court  has 
consistently  made  clear  that  it  is  the  duty  of  a  reviewing 
court  to  consider  the  trial  record  as  a  whole  and  to  ignore  er- 
rors that  are  harmless,  including  most  constitutional  viola- 
tions." United  States  v.  Hasting,  461  U.  S.  499,  509  (1983). 
This  rule  has  been  applied  to  a  variety  of  constitutional  viola- 
tions. See  Harrington  v.  California,  395  U.  S.  250  (1969) 
(use  of  co-conspirator  confession  in  violation  of  Confrontation 
Clause);  Coleman  v.  Alabama,  399  U.  S.  1  (1970)  (denial  of 
counsel  at  preliminary  hearing);  Milton  v.  Wainwright,  407 
U.  S.  371  (1972)  (use  of  confession  obtained  in  violation  of 


270  OCTOBER  TERM,  1985 

POWELL,  J.,  dissenting  474  U.  S. 

right  to  counsel);  Gerstein  v.  Pugh,  420  U.  S.  103  (1975)  (ille- 
gal arrest). 

Other  doctrines  reflect  the  same  principle.  A  defendant 
claiming  ineffective  assistance  of  counsel  must  show  that 
counsel's  incompetence  caused  him  actual  prejudice.  Strick- 
land v.  Washington,  466  U.  S.  668,  687  (1984).  This  is  so 
even  though  counsel  "made  errors  so  serious  that  [he]  was 
not  functioning  as  the  'counsel'  guaranteed  by  the  Sixth 
Amendment."  Ibid. 3  Similarly,  a  defendant  who  is  barred 
by  a  procedural  default  from  asserting  a  constitutional  claim 
on  direct  appeal  cannot  raise  the  claim  on  habeas  corpus  with- 
out showing  that  the  error  actually  prejudiced  him.  United 
States  v.  Frady,  456  U.  S.  152,  170  (1982);  see  also  Wain- 
wright  v.  Sykes,  433  U.  S.  72  (1977). 

In  Rose  v.  Mitchell,  443  U.  S.  545  (1979),  the  Court  con- 
tended that  the  principle  of  these  cases  is  inapplicable  to 
grand  jury  discrimination  claims,  because  grand  jury  dis- 
crimination "destroys  the  appearance  of  justice  and  thereby 
casts  doubt  on  the  integrity  of  the  judicial  process." 4  Id. ,  at 
555-556.  But  every  constitutional  error  may  be  said  to  raise 
questions  as  to  the  "appearance  of  justice"  and  the  "integrity 


8  As  the  Court  stated  in  Strickland,  "[w]hen  a  defendant  challenges  a 
conviction,  the  question  is  whether  there  is  a  reasonable  probability  that, 
absent  the  errors,  the  factfinder  would  have  had  a  reasonable  doubt  re- 
specting guilt."  466  U.  S.,  at  695. 

4  Although  all  parts  of  JUSTICE  BLACKMUN'S  opinion  in  Rose  v.  Mitchell 
were  joined  by  four  other  Justices,  its  precedential  weight  is  subject  to 
some  question.  In  particular,  Part  II  of  the  opinion— the  part  that  dis- 
cusses the  legal  principles  applicable  to  grand  jury  discrimination  claims 
generally— was  not  joined  by  five  Justices  who  also  joined  in  the  judgment. 
Cf.  Gregg  v.  Georgia,  428  U.  S.  153,  169,  n.  15  (1976)  (Court's  holding  is 
'that  position  taken  by  those  Members  who  concurred  in  the  judgments  on 
the  narrowest  grounds").  Moreover,  the  opinion's  discussion  of  general 
principles  was  irrelevant  to  the  result,  which  turned  on  the  insufficiency 
of  the  evidence  of  discrimination.  In  my  view,  therefore,  Rose  is  little 
more  than  an  advisory  opinion.  See  Flast  v.  Cohen,  392  U.  S.  83,  94-95 
(1968);  Frankfurter,  Note  on  Advisory  Opinions,  37  Harv.  L.  Rev.  1002, 
1005-1007  (1924). 


VASQUEZ  v.  HILLERY  271 

254  POWELL,  J.,  dissenting 

of  the  judicial  process."  Nevertheless,  as  the  cases  cited 
above  show,  the  Court  has  required  some  showing  of  actual 
prejudice  to  the  defendant  as  a  prerequisite  to  reversal,  even 
when  the  constitutional  error  directly  affects  the  fairness  of 
the  defendant's  trial.  Compare  Strickland  v.  Washington, 
supra,  at  687  (requiring  prejudice  in  ineffective  assistance  of 
counsel  claims),  with  Gideon  v.  Wainwright,  372  U.  S.  335, 
344—345  (1963)  (emphasizing  importance  of  right  to  counsel  to 
ensure  fair  trial).  Grand  jury  discrimination  is  a  serious  vi- 
olation of  our  constitutional  order,  but  so  also  are  the  depri- 
vations of  rights  guaranteed  by  the  Fourth,  Fifth,  Sixth,  and 
Fourteenth  Amendments  to  which  we  have  applied  harmless- 
error  analysis  or  an  analogous  prejudice  requirement. 
Moreover,  grand  jury  discrimination  occurs  prior  to  trial, 
while  the  asserted  constitutional  violations  in  most  of  the 
above-cited  cases  occurred  during  trial.  The  Court  does  not 
adequately  explain  why  grand  jury  discrimination  affects  the 
"integrity  of  the  judicial  process"  to  a  greater  extent  than  the 
deprivation  of  equally  vital  constitutional  rights,  nor  why  it  is 
exempt  from  a  prejudice  requirement  while  other  constitu- 
tional errors  are  not. 

Thirty-one  years  ago,  in  a  typically  prescient  opinion,  Jus- 
tice Jackson  called  for  such  an  explanation.  Cassell  v. 
Texas,  339  U.  S.  282,  299  (1950)  (Jackson,  J.,  dissenting). 
None  has  been  forthcoming.  Rose  v.  Mitchell,  supra,  at  575 
(Stewart,  J.,  concurring  in  judgment).  Since  then,  as  the 
cases  cited  above  show,  the  Court  has  firmly  established  the 
principle  that  error  that  does  not  affect  the  outcome  of  a  pros- 
ecution cannot  justify  reversing  an  otherwise  valid  convic- 
tion. That  proposition— and  the  decisions  of  the  last  two 
decades  that  have  reinforced  it — is  flatly  inconsistent  with 
the  result  reached  today.  The  Court's  failure  to  reconcile 
this  conflict  itself  violates  the  doctrine  of  stare  decisis. 

I  would  dissent  from  the  Court's  decision  for  this  reason 
alone.  The  reasoning  of  Chapman  and  its  progeny  accords 
with  a  rational  system  of  justice — one  that  fully  preserves 


272  OCTOBER  TERM,  1985 

POWELL,  J.,  dissenting  474  U.  S. 

constitutional  rights  but  recognizes  that  not  every  violation 
undermines  the  fairness  of  a  given  conviction.  In  this  case, 
the  grand  jury  error  did  not  affect  the  fairness  of  respond- 
ent's trial  or  otherwise  injure  respondent  in  any  cognizable 
way.  Infra,  at  274-277.  I  therefore  would  reverse  the 
Court  of  Appeals. 

II 

Even  assuming  that  now-established  harmless-error  prin- 
ciples are  inapplicable,  this  case  unjustifiably  extends  the 
"century  of  precedent"  on  which  the  Court  relies.  Those  de- 
cisions do  not  require  reversal  of  a  decades-old  conviction  on 
the  ground  that  it  was  preceded  by  an  indictment  issued  by  a 
discriminatorily  selected  grand  jury.  The  purposes  of  the 
"automatic  reversal"  rule  require  otherwise. 


No  one  questions  that  race  discrimination  in  grand  jury 
selection  violates  the  Equal  Protection  Clause  of  the  Four- 
teenth Amendment.     E.  g.,  Rose  v.  Mitchell,  443  U.  S.,  at 
551;  id.,  at  577-578  (Stewart,  J.,  concurring  in  judgment); 
id.,  at  590-591  (WHITE,  J.,  dissenting).      The  issue  in  this 
case  is  not  whether  the  State  erred,  but  what  should  be  done 
about  it.     The  question  is  whether  reversal  of  respondent's 
conviction  either  is  compelled  by  the  Constitution  or  is  an 
appropriate,  but  not  constitutionally  required,  remedy  for 
racial  discrimination  in  the  selection  of  grand  jurors.      See 
Bush  v.  Lucas,  462  U.  S.  367,  378  (1983);  Davis  v.  Passman, 
442  U.  S.  228,  245  (1979);  Bivens  v.  Six  Unknown  Federal 
Narcotics  Agents,  403  U.  S.  388,  403,  407  (1971)  (Harlan,  J., 
concurring  in  judgment). 

The  Constitution  does  not  compel  the  rule  of  automatic 
reversal  that  the  Court  applies  today.  In  Hobby  v.  United 
States,  468  U.  S.  339  (1984),  we  acknowledged  that  discrimi- 
natory selection  of  grand  jury  foremen  violated  the  Constitu- 
tion, but  we  concluded  that  reversing  the  petitioner's  convic- 
tion was  an  inappropriate  remedy  for  the  violation  since 


VASQUEZ  v.  HILLERY  273 

254  POWELL,  J.,  dissenting 

grand  jury  foremen  play  a  minor  part  in  federal  prosecutions. 
Id.,  at  345-346;  see  also  Oregon  v.  Elstad,  470  U.  S.  298, 
305-307  (1985)  (suppression  of  evidence  obtained  in  violation 
of  Miranda  v.  Arizona,  384  U.  S.  436  (1966),  is  not  constitu- 
tionally compelled);  United  States  v.  Leon,  468  U.  S.  897, 
905-906  (1984)  (suppression  of  evidence  obtained  in  violation 
of  the  Fourth  Amendment  is  not  constitutionally  compelled); 
Stone  v.  Powell,  428  U.  S.  465,  489  (1976);  see  generally 
Monaghan,  Foreword:  Constitutional  Common  Law,  89  Harv. 
L.  Rev.  1  (1975).  The  rationale  of  Hobby  cannot  be  squared 
with  the  claim  that  discriminatory  selection  of  the  body  that 
charged  the  defendant  compels  reversal  of  the  defendant's 
conviction.  Rather,  it  is  necessary  to  determine  whether  re- 
versal of  respondent's  conviction  is  an  "appropriate  remedy" 
for  the  exclusion  of  blacks  from  grand  juries  in  Kings  County, 
California,  in  1962. 5  Hobby,  supra,  at  342;  see  Rose  v. 
Mitchell,  supra,  at  558-559  (weighing  costs  and  benefits  of 
awarding  relief  to  petitioners  claiming  grand  jury  discrim- 
ination). Cf.  Merrill,  The  Common  Law  Powers  of  Federal 
Courts,  52  U.  Chi.  L.  Rev.  1,  53  (1985)  (arguing  that  judi- 
cially created  remedies  are  appropriate  only  when  "necessary 
in  order  to  preserve  a  specifically  intended  federal  right"). 
That  determination  depends  on  (i)  the  utility  of  the  remedy  in 
either  correcting  any  injustice  to  respondent  or  deterring  un- 
constitutional conduct  by  state  officials,  and  (ii)  the  remedy's 
costs  to  society.  United  States  v.  Leon,  supra,  at  906-907; 
Stone  v.  Powell,  supra,  at  489. 

B 

The  scope  of  the  remedy  depends  in  part  on  the  nature  and 
degree  of  the  harm  caused  by  the  wrong.  The  Court  per- 
ceives two  kinds  of  harm  flowing  from  grand  jury  discrimi- 
nation: harm  to  respondent's  interest  in  not  being  charged 


5  Respondent  does  not  allege  that  discriminatory  selection  of  grand  ju- 
rors continued  after  1962.  Nor  is  there  anything  in  the  record  to  support 
such  an  allegation. 


274  OCTOBER  TERM,  1985 

POWELL,  J.,  dissenting  474  U.  S. 

and  convicted  because  of  his  race,  and  harm  to  society's  inter- 
est in  deterring  racial  discrimination.  I  consider  in  turn 
these  asserted  interests  and  the  degree  to  which  they  are 
served  in  this  case  by  the  Court's  automatic  reversal  rule. 

(1) 

The  Court  does  not  contend  that  the  discriminatory  selec- 
tion of  the  grand  jury  that  indicted  respondent  calls  into 
question  the  correctness  of  the  decision  to  indict.  Such 
a  contention  could  not  withstand  analysis.  Following  his 
indictment  for  murder,  respondent  was  convicted  of  that 
charge  in  a  trial  and  by  a  jury  whose  fairness  is  not  now 
challenged.  The  conviction,  affirmed  on  direct  appeal  in 
1965,6  establishes  that  the  grand  jury's  decision  to  indict  was 
indisputably  correct.  Rose  v.  Mitchell,  supra,  at  575—576 
(Stewart,  J.,  concurring  in  judgment);  Cassell  v.  Texas,  339 
U.  S.,  at  301-302  (Jackson,  J.,  dissenting).  Justice  Jackson 
expressed  the  point  best: 

"It  hardly  lies  in  the  mouth  of  a  defendant  whom  a 
fairly  chosen  trial  jury  has  found  guilty  beyond  reason- 
able doubt,  to  say  that  his  indictment  is  attributable  to 
prejudice.  In  this  case  a  trial  judge  heard  the  prosecu- 
tion's evidence,  ruled  it  sufficient  to  warrant  a  convic- 
tion, appellate  courts  have  held  the  same,  and  no  further 
question  about  it  is  before  us.  Moreover,  a  jury  admit- 
tedly chosen  without  racial  discrimination  has  heard  the 
prosecution's  and  defendant's  evidence  and  has  held  that 
guilt  beyond  a  reasonable  doubt  has  been  proved.  That 
finding,  too,  has  been  affirmed  on  appeal  and  is  not  here. 
Under  such  circumstances,  it  is  frivolous  to  contend  that 
any  grand  jury,  however  constituted,  could  have  done  its 


6  The  California  Supreme  Court  affirmed  respondent's  conviction  in 
1963;  on  rehearing  in  1965,  the  court  reversed  respondent's  death  sentence 
but  again  affirmed  his  conviction.  Ante,  at  256,  n.  2.  Respondent  is 
presently  serving  a  sentence  of  life  imprisonment. 


VASQUEZ  v.  HILLERY  275 

254  POWELL,  J.,  dissenting 

duty  in  any  way  other  than  to  indict."     Cassell  v.  Texas, 
supra,  at  302  (dissenting). 

The  Court  nevertheless  decides  that  discrimination  in  the 
selection  of  the  grand  jury  potentially  harmed  respondent, 
because  the  grand  jury  is  vested  with  broad  discretion  in  de- 
ciding whether  to  indict  and  in  framing  the  charges,  and  be- 
cause it  is  impossible  to  know  whether  this  discretion  would 
have  been  exercised  differently  by  a  properly  selected  grand 
jury.  Ante,  at  263.  The  point  appears  to  be  that  an  all- 
white  grand  jury  from  which  blacks  are  systematically  ex- 
cluded might  be  influenced  by  race  in  determining  whether  to 
indict  and  for  what  charge.  Since  the  State  may  not  im- 
prison respondent  for  a  crime  if  one  of  its  elements  is  his 
race,  the  argument  goes,  his  conviction  must  be  set  aside. 

This  reasoning  ignores  established  principles  of  equal  pro- 
tection jurisprudence.  We  have  consistently  declined  to  find 
a  violation  of  the  Equal  Protection  Clause  absent  a  finding  of 
intentional  discrimination.  Arlington  Heights  v.  Metropoli- 
tan Housing  Development  Corp.,  429  U.  S.  252,  265  (1977); 
Washington  v.  Davis,  426  U.  S.  229,  239  (1976).  There  has 
been  no  showing  in  this  case — indeed,  respondent  does  not 
even  allege— that  the  Kings  County  grand  jury  indicted  re- 
spondent because  of  his  race,  or  that  the  grand  jury  declined 
to  indict  white  suspects  in  the  face  of  similarly  strong  evi- 
dence.7 Nor  is  it  sensible  to  assume  that  impermissible  dis- 

7  Most  criminal  cases  in  Kings  County  were  initiated  by  information 
rather  than  indictment.  In  the  decade  ending  in  1962,  Kings  County 
grand  juries  indicted  a  total  of  only  four  persons,  only  one  of  whom  -was 
black.  People  v.  Hillery,  62  Cal.  2d  692,  710,  401  P.  2d  382,  393  (1965), 
cert,  denied,  386  U.  S.  938  (1967).  In  light  of  these  facts,  any  claim  that 
discriminatory  selection  of  grand  jurors  was  a  mechanism  for  applying  dif- 
ferent standards  to  black  offenders  than  to  their  white  counterparts  seems 
altogether  fanciful. 

Nor  is  there  any  direct  evidence  that  the  grand  jury  discriminated 
against  respondent  because  of  his  race.  The  only  discrimination  in  this 
case  was  directed  not  at  respondent  but  at  the  black  residents  of  Kings 
County,  who  were  barred  from  serving  on  grand  juries  because  of  their 


276  OCTOBER  TERM,  1985 

POWELL,  J.,  dissenting  474  U.  S. 

crimination  might  have  occurred  simply  because  the  grand 
jury  had  no  black  members.  This  Court  has  never  sug- 
gested that  the  racial  composition  of  a  grand  jury  gives  rise 
to  the  inference  that  indictments  are  racially  motivated,  any 
more  than  it  has  suggested  that  a  suspect  arrested  by  a  po- 
liceman of  a  different  race  may  challenge  his  subsequent  con- 
viction on  that  basis.8  But  the  Court  now  holds  that  relief  is 
justified  in  part  because  of  the  bare  potential,  unsupported 
by  any  evidence,  that  an  all-white  grand  jury  charged  re- 
spondent because  of  his  race. 

This  justification  does  not  square  with  the  Court's  previous 
decisions  in  this  area;  at  the  same  time,  it  fails  to  explain  the 
outcome  of  this  case.     In  Castaneda  v.  Partida,  430  U.  S. 
482  (1977),  for  example,  the  Court  ordered  a  new  trial  for 
a  Hispanic  petitioner  who  was  indicted  by  a  grand  jury  half 
of  whose  members  were  Hispanic.     Whatever  value  such  a 
result  might  have,  it  cannot  be  justified  on  the  ground  that 
the  grand  jury  indicted  the  petitioner  because  of  his  race. 
In  this  case,  due  to  the  small  number  of  blacks  in  Kings 
County,  a  random  selection  system  could  well  have  resulted 
in  a  grand  jury  identical  to  the  one  that  indicted  respondent. 
A  perfectly  representative  grand  jury — one  whose  compo- 
sition reflected  the  county's  racial  mix— would  have  contained 
only  one  black  member.     Neither  outcome  would  have  justi- 
fied an  inference  that  respondent  had  been  charged  because 
of  his  race.     See  Akins  v.  Texas,  325  U.  S.  398,  403  (1945). 
Once  the  inference  of  racial  bias  in  the  decision  to  indict  is 
placed  to  one  side,  as  it  must  be  under  our  precedents,  it  is 

race.  There  is  nothing  in  the  record  to  support  a  finding  that  the  grand 
jurors  themselves  discriminated  against  anyone  on  the  basis  of  race,  or 
that  they  otherwise  failed  to  discharge  their  duties  properly. 

8  Instead,  as  the  Court  apparently  acknowledges,  a  validly  convicted 
criminal  defendant  must  show  that  he  was  "deliberately  charged  ...  on 
account  of  his  race"  in  order  to  obtain  reversal  of  the  conviction.  Ante,  at 
264  (citing  United  States  v.  Batchelder,  442  U.  S.  114,  125,  and  n.  9 
(1979)).  Respondent  has  not  even  alleged,  much  less  shown,  any  dis- 
crimination directed  at  him.  See  n.  7,  supra. 


VASQUEZ  u  HILLERY  277 

254  POWELL,  J.,  dissenting 

impossible  to  conclude  that  the  discriminatory  selection  of 
Kings  County's  grand  jurors  caused  respondent  to  suffer  any 
cognizable  injury.  There  may  be  a  theoretical  possibility 
that  a  different  grand  jury  might  have  decided  not  to  indict  or 
to  indict  for  a  less  serious  charge.  The  fact  remains,  how- 
ever, that  the  grand  jury's  decision  to  indict  was  correct  as  a 
matter  of  law,  given  respondent's  subsequent,  unchallenged 
conviction.  A  defendant  has  no  right  to  a  grand  jury  that 
errs  in  his  favor.  At  most,  he  has  an  interest  in  not  being 
bound  over  for  trial  in  the  absence  of  any  evidence  of  his 
guilt,  see  Costello  v.  United  States,  350  U.  S.  359,  364  (1956) 
(Burton,  J.,  concurring),9  or  based  on  impermissible  factors 
such  as  his  race,  see  Oylerv.  Boles,  368  U.  S.  448,  456  (1962). 
There  is  no  allegation  that  those  rights  were  violated  in  this 
case.  The  Court's  decision  cannot,  therefore,  be  justified  as 
a  means  of  redressing  any  wrong  to  respondent. 

(2) 

As  respondent  suffered  no  prejudice  from  the  grand  jury 
discrimination  that  prompted  his  claim,  the  Court's  remedy 
must  stand  or  fall  on  its  utility  as  a  deterrent  to  government 
officials  who  seek  to  exclude  particular  groups  from  grand 
juries,  weighed  against  the  cost  that  the  remedy  imposes  on 
society.  See  United  States  v.  Leon,  468  U.  S.,  at  906-907. 
The  Court  properly  emphasizes  that  grand  jury  discrimina- 
tion is  "a  grave  constitutional  trespass,"  ante,  at  262,  but  it 
leaps  from  that  observation  to  the  conclusion  that  no  matter 
when  the  claim  is  raised  the  appropriate  response  is  to  re- 
verse the  conviction  of  one  indicted  by  a  discriminatorily  se- 


9 1  do  not  intend  to  suggest  that  respondent  could  have  obtained  judicial 
review  of  the  sufficiency  of  the  evidence  on  which  his  indictment  was 
based.  See  United  States  v.  Calandra,  414  U.  S.  338,  345  (1974)  ("[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"). 
I  suggest  only  that,  assuming  such  an  attack  were  permitted,  respondent 
could  show  no  violation  of  any  personal  right  in  this  case. 


278  OCTOBER  TERM,  1985 

POWELL,  J.,  dissenting  474  U.  S. 

lected  body.  That  conclusion  is  not,  as  the  Court  errone- 
ously suggests,  compelled  by  precedent;  equally  important,  it 
seriously  disserves  the  public  interest. 

The  cases  on  which  the  Court  relies  involved  relatively 
brief  lapses  of  time  between  the  defendant's  trial  and  the 
granting  of  relief.  This  fact  is  unsurprising,  since  the  Court 
only  recently  determined  that  claims  of  grand  jury  dis- 
crimination may  be  raised  in  federal  habeas  corpus  proceed- 
ings. See  Rose  v.  Mitchell,  443  U.  S.  545  (1979). 10  Prior  to 
1970,  the  Court's  grand  jury  discrimination  cases  arose  on  di- 
rect appeal  from  conviction.  In  all  of  those  cases,  the  time 
between  the  defendant's  indictment  and  this  Court's  decision 
was  six  years  or  less.11  Before  today,  the  Court  has  twice 

10  In  my  separate  opinion  in  Rose  v.  Mitchell,  I  took  the  position  that, 
where  a  habeas  petitioner  is  given  a  full  opportunity  to  litigate  his  grand 
jury  discrimination  claim  in  state  court,  he  should  not  be  permitted  to  liti- 
gate the  claim  again  on  federal  habeas  corpus.  443  U.  S. ,  at  579  (POWELL, 
J.,  concurring  in  judgment).  I  remain  convinced  that  my  conclusion  was 
correct.  Nor  do  I  believe  that  in  this  case  stare  decisis  weighs  persua- 
sively against  reexamining  the  question  whether  a  defendant  should  be 
permitted  to  relitigate  a  claim  that  has  no  bearing  on  either  his  guilt  or  on 
the  fairness  of  the  trial  that  convicted  him.  Rose  v.  Mitchell,  decided  in 
1979,  is  the  only  case  in  which  this  Court  has  examined  the  issue,  and 
Rose's  authority  is  questionable.  See  n.  4,  supra. 

JUSTICE  O'CONNOR  has  some  doubt  as  to  whether  respondent  had  a  full 
and  fair  opportunity  to  litigate  his  grand  jury  discrimination  claim  in 
a  state  court.  Ante,  at  267  (O'CONNOR,  J.,  concurring  in  judgment).  Re- 
spondent concedes  that  he  did  in  fact  relitigate  that  claim  in  state  habeas 
corpus  proceedings,  Brief  for  Respondent  3,  and  appealed  the  denial  of 
relief  to  the  California  Supreme  Court.  Ibid.  In  my  view,  this  afforded 
respondent  an  entirely  adequate  opportunity  to  litigate  in  state  courts  both 
the  underlying  discrimination  claim  and  the  subsidiary  claim  that  Judge 
Wingrove  was  a  biased  adjudicator. 

It  is  unnecessary  actually  to  decide  the  issue  in  this  case,  for  I  conclude 
that  the  judgment  should  be  reversed  on  two  other  grounds:  the  harmless- 
ness  of  the  error,  and  the  inappropriateness  of  the  Court's  remedy  in  cases 
in  which  the  discrimination  claim  is  raised  so  long  after  the  claimant's  con- 
viction that  retrial  is  difficult  if  not  impossible. 

"The  longest  time  lapse  occurred  in  Strauder  v.  West  V^rg^nia,  100 
U.  S.  303  (1880).  In  Strauder,  the  defendant  was  indicted  in  October 
1874;  this  Court's  decision  was  rendered  in  March  1880. 


VASQUEZ  v.  HILLERY  279 

254  POWELL,  J.,  dissenting 

granted  relief  to  habeas  corpus  petitioners  alleging  grand 
jury  discrimination.  Both  cases  involved  delays  compara- 
ble to  the  delay  reflected  in  the  cases  that  arose  on  direct  ap- 
peal. See  Castaneda  v.  Partida,  430  U.  S.  482  (1977)  (deci- 
sion announced  five  years  after  indictment);  Peters  v.  Kiff, 
407  U.  S.  493  (1972)  (decision  announced  six  years  after 
indictment). 

This  case  raises  the  open  question  whether  relief  should  be 
denied  where  the  discrimination  claim  is  pressed  many  years 
after  conviction,  and  where  the  State  can  show  that  the  delay 
prejudiced  its  ability  to  retry  the  defendant.12  Respondent 
first  raised  his  grand  jury  discrimination  claim  before  a  fed- 
eral court  16  years  after  his  conviction.13  It  is  now  almost  a 
quarter-century  since  respondent  was  tried  for  murder  and 
since  the  discrimination  occurred.  The  Court  finds  this  time 
lapse  irrelevant.  In  my  view,  it  is  critically  important,  be- 
cause it  both  increases  the  societal  cost  of  the  Court's  chosen 


12  The  Court  has  decided  only  two  cases  in  which  the  State  might  have 
argued  that  a  long  delay  in  raising  a  grand  jury  discrimination  claim  preju- 
diced the  State's  ability  to  retry  the  defendant.      In  both  instances,  the 
Court  denied  relief  on  other  grounds.      Francis  v.  Henderson,  425  U.  S. 
536  (1976)  (petitioner  raised  grand  jury  discrimination  claim  seven  years 
after  conviction;  Court  denied  relief  on  exhaustion  grounds);  Tollett  v. 
Henderson,  411  U.  S.  258  (1973)  (petitioner  raised  grand  jury  claim  21 
years  after  conviction;  Court  held  that  claim  was  foreclosed  because  peti- 
tioner had  pleaded  guilty  pursuant  to  competent  legal  advice). 

13  The  reason  for  this  delay  is  irrelevant,  unless  bad  faith  on  the  State's 
part  can  be  shown.      Because  respondent  suffered  no  injury  from  Kings 
County's  discriminatory  selection  of  grand  juries,  he  cannot  fairly  complain 
if  he  is  required  to  raise  his  claim  promptly  in  order  to  secure  a  windfall. 

Moreover,  respondent  does  not  appear  to  have  been  blameless  for  the 
long  delay.  The  California  Supreme  Court  finally  rejected  respondent's 
grand  jury  discrimination  claim  in  1965.  Respondent  next  raised  the  claim 
in  1974,  when  he  sought  postconviction  relief  in  state  court.  During  the 
intervening  nine  years,  respondent  raised  repeated  challenges— ultimately 
successfully— to  his  death  sentence.  There  is  no  apparent  reason  why 
respondent  could  not  simultaneously  have  sought  postconviction  relief  on 
the  grand  jury  discrimination  claim,  which  if  successful  would  require  a 
new  trial  on  guilt. 


280  OCTOBER  TERM,  1985 

POWELL,  J.,  dissenting  474  U.  S. 

remedy  and  lessens  any  deterrent  force  the  remedy  may 
otherwise  have. 

In  Rose  v.  Mitchell,  supra,  the  Court  reasoned  that  the 
rule  of  automatic  reversal  imposes  limited  costs  on  society, 
since  the  State  is  able  to  retry  successful  petitioners,  and 
since  "the  State  remains  free  to  use  all  the  proof  it  introduced 
to  obtain  the  conviction  in  the  first  trial."     Id. ,  at  558.     This 
is  not  the  case  when  relief  is  granted  many  years  after  the 
original  conviction.     In  those  circumstances,  the  State  may 
find  itself  severely  handicapped  in  its  ability  to  carry  its 
heavy  burden  of  proving  guilt  beyond  a  reasonable  doubt. 
Where  the  original  verdict  turned  on  the  jury's  credibility 
judgments,  long  delays  effectively  eliminate  the  State's  abil- 
ity to  reconstruct  its  case.      Even  where  credibility  is  not 
central,  the  passage  of  time  may  make  the  right  to  retry  the 
defendant  "a  matter  of  theory  only."     Friendly,  Is  Innocence 
Irrelevant?  Collateral  Attack  on  Criminal  Judgments,  38  U. 
Chi.  L.  Rev.  142,  147  (1970).     Witnesses  die  or  move  away; 
physical  evidence  is  lost;  memories  fade.     For  these  reasons, 
the  Court  has  noted  that  "'[tjhe  greater  the  lapse  of  time,  the 
more  unlikely  it  becomes  that  the  state  could  reprosecute  if 
retrials  are  held  to  be  necessary.'"     Peyton  v.  Rowe,  391 
U.  S.  54,  62  (1968)  (citation  omitted).14 

Long  delays  also  dilute  the  effectiveness  of  the  reversal 
rule  as  a  deterrent.  This  case  is  illustrative.  The  architect 
of  the  discriminatory  selection  system  that  led  to  respond- 
ent's claim,  Judge  Wingrove,  died  19  years  ago.  Respond- 

14  Under  the  Court's  approach,  one  in  respondent's  position  may  be  wise 
to  wait  to  raise  his  discrimination  claim  until  the  State  could  no  longer 
reconvict  him  due  to  the  death  or  disappearance  of  witnesses  or  the  loss  of 
physical  evidence.  In  effect,  this  strategy  could  permit  a  prisoner  to  com- 
mute a  legally  imposed  sentence  of  life  or  long  duration.  This  is  a  risk  so- 
ciety should  tolerate  where  the  claim  goes  to  the  petitioner's  guilt  or  inno- 
cence, or  even  where  the  claim  seeks  otherwise  to  redress  a  wrong  done  to 
the  petitioner.  But  there  is  no  reason  to  tolerate  this  risk  where,  as  here, 
the  claimant  was  fairly  convicted  and  has  suffered  no  prejudice  from  the 
asserted  constitutional  error. 


VASQUEZ  v.  KILLER Y  281 

254  POWELL,  J.,  dissenting 

ent  does  not  allege  that  the  discriminatory  practices  survived 
Judge  Wingrove,  nor  is  there  any  evidence  in  the  record  to 
support  such  an  allegation.  It  is  hard  to  believe  that  Judge 
Wingrove  might  have  behaved  differently  had  he  known  that 
a  convicted  defendant  might  be  freed  19  years  after  his 
death.  Yet  that  is  exactly  the  proposition  that  must  justify 
the  remedy  imposed  in  this  case:  that  people  in  positions  simi- 
lar to  Judge  Wingrove's  will  change  their  behavior  out  of  the 
fear  of  successful  habeas  petitions  long  after  they  have  left 
office  or  otherwise  passed  from  the  scene.  The  proposition, 
to  say  the  least,  is  highly  questionable. 

These  concerns  require  that  a  different  balance  be  struck 
in  a  case  such  as  this  one  than  in  cases  in  which  the  grand 
jury  discrimination  claim  is  adjudicated  only  a  short  time 
after  the  petitioner's  conviction.  At  the  very  least,  the 
Court  should  focus  directly  on  the  aspect  of  delay  that  in- 
creases the  costliness  of  its  remedy  by  allowing  the  State  to 
show  that  it  would  be  substantially  prejudiced  in  its  ability  to 
retry  respondent.15  If  this  showing  were  made,  respondent's 


15  The  Court  suggests  that  Rule  9(a)  of  the  Habeas  Corpus  Rules,  to- 
gether with  congressional  inaction,  "counsels  against"  considering  preju- 
dice to  the  State's  ability  to  retry  respondent  in  this  case.  Ante,  at  265. 
This  suggestion  is  erroneous.  Rule  9  permits  the  State  to  defend  against 
both  repetitious  habeas  petitions,  see  Woodard  v.  Hutchins,  464  U.  S.  377, 
379  (1984)  (POWELL,  J.,  joined  by  BURGER,  C.  J.,  and  BLACKMUN,  REHN- 
QUIST,  and  O'CONNOR,  JJ,,  concurring),  and  petitions  to  which  the  State 
cannot  adequately  respond  due  to  the  petitioner's  delay  in  filing,  e.  g., 
Mayola  v.  Alabama,  623  F.  2d  992,  999-1000  (CAS  1980),  cert,  denied,  451 
U.  S.  913  (1981).  The  Rule  does  not  by  its  terms  foreclose  other  consider- 
ation of  the  lapse  of  time  between  the  petitioner's  conviction  and  the  filing 
of  the  habeas  petition.  Honeycutt  v.  Ward,  612  F.  2d  36,  43  (CA2  1979) 
(Friendly,  J.,  concurring  in  judgment),  cert,  denied,  446  U.  S.  985  (1980). 
More  important,  it  is  a  rule  of  habeas  corpus  procedure  applicable  to  ha- 
beas petitions  generally,  and  does  not  purport  to  be  a  rule  of  substantive 
law  that  defines  particular  substantive  claims  for  relief.  Congress'  deci- 
sion not  to  amend  it  therefore  says  nothing  about  Congress'  intent  with  re- 
gard to  the  remedy  applied  here.  In  sum,  the  question  whether  the  relief 
respondent  seeks  is  "appropriate"  in  this  case,  Hobby  v.  Umted  States,  468 


282  OCTOBER  TERM,  1985 

POWELL,  J.,  dissenting  474  U.  S. 

petition  for  relief  should  be  denied.  Such  an  approach  would 
also  identify  those  cases  in  which  granting  habeas  relief  could 
be  expected  to  have  the  least  deterrent  value:  the  State  will 
likely  suffer  the  greatest  prejudice  in  cases  of  long  delay,  and 
those  are  the  cases  in  which  the  automatic  reversal  rule  is 
least  likely  to  alter  the  behavior  of  discriminatory  officials. 
This  approach  would  leave  the  rule  that  the  Court  defends  in- 
tact in  precisely  those  cases  where  it  does  the  most  good  and 
the  least  harm:  cases  in  which  the  responsible  officials  are 
likely  to  be  accountable  for  forcing  the  State  to  again  prove 
its  case,  and  in  which  retrial  and  reconviction  are  plausible 
possibilities. 

Ill 

Twenty-three  years  ago,  respondent  was  fairly  convicted 
of  the  most  serious  of  crimes.  Respondent's  grand  jury  dis- 
crimination claim  casts  no  doubt  on  the  adequacy  of  the  pro- 
cedures used  to  convict  him  or  on  the  sufficiency  of  the  evi- 
dence of  his  guilt.  For  that  reason  alone,  the  Court  should 
reverse  the  Court  of  Appeals'  decision.16  Even  assuming  the 

U.  S.  339,  342  (1984),  is  governed  neither  by  Rule  9  nor  by  Congress'  deci- 
sions not  to  amend  that  Rule.  See  Stone  v.  Powell,  428  U.  S.  465,  474-482 
(1976)  (discussing  relationship  between  habeas  corpus  statute  and  the  rule 
that  evidence  seized  in  violation  of  the  Fourth  Amendment  is  inadmissi- 
ble). As  the  Court  stated  in  Fay  v.  Noia,  372  U.  S.  391,  438  (1963): 
"[W]e  recognize  a  limited  discretion  in  the  federal  judge  to  deny  [habeas 
corpus]  relief  to  an  applicant  under  certain  circumstances.  Discretion  is 
implicit  in  the  statutory  command  that  the  judge,  after  granting  the  writ 
and  holding  a  hearing  of  appropriate  scope,  'dispose  of  the  matter  as  law 
and  justice  require,'  28  U.  S.  C.  §  2243;  and  discretion  was  the  flexible  con- 
cept employed  by  the  federal  courts  in  developing  the  exhaustion  rule. 
Furthermore,  habeas  corpus  has  traditionally  been  regarded  as  governed 
by  equitable  principles." 

See  also  Stone  v.  Powell,  supra,  at  478,  n.  11.  Those  "equitable  princi- 
ples" cannot,  in  my  view,  require  that  the  Court  apply  a  remedy  that  is  not 
constitutionally  compelled  beyond  the  bounds  of  justice  and  good  sense. 
16  Confidence  in  our  system  of  justice  is  eroded  when  one  found  guilty  of 
murder,  in  a  trial  conceded  to  be  fair,  is  set  free.  It  is  important  to  re- 
member that  the  criminal  law's  aim  is  twofold:  "that  guilt  shall  not  escape 


VASQUEZ  v.  HILLEKY  283 

254  POWELL,  J.,  dissenting 

harmlessness  of  the  error  is  irrelevant,  however,  reversal  is 
still  required.  The  Court  inappropriately  applies  a  deter- 
rence rule  in  a  context  where  it  is  unlikely  to  deter,  and 
where  its  costs  to  society  are  likely  to  be  especially  high. 
These  considerations  should  at  least  lead  the  Court  to 
remand  for  a  determination  of  whether  the  long  lapse  of  time 
since  respondent's  conviction  would  prejudice  the  State's 
ability  to  retry  respondent. 

The  Court  follows  neither  of  these  paths,  but  instead 
affirms  a  decision  that  will  likely  mean  that  respondent  must 
be  freed  for  no  good  purpose.  This  result  is  not  compelled 
by  precedent.  But  if  it  were,  its  consequences  would  justify 
reconsidering  those  decisions  thought  to  require  it.  I  there- 
fore dissent. 


or  innocence  suffer."  Berger  v.  United  States,  295  U.  S.  78,  88  (1935);  see 
also  United  States  v.  Agurs,  427  U.  S.  97,  112  (1976).  The  Court's  deci- 
sion in  this  case  plainly  undermines  the  State's  interest  in  punishing  the 
guilty,  without  either  protecting  the  innocent  or  ensuring  the  fundamental 
fairness  of  the  procedures  pursuant  to  which  one  such  as  respondent  is 
tried  and  convicted. 


284  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 


WAINWRIGHT,  SECRETARY,  FLORIDA  DEPART- 
MENT OF  CORRECTIONS  v.  GREENFIELD 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  ELEVENTH  CIRCUIT 

No.  84-1480.     Argued  November  13,  1985— Decided  January  14,  1986 

On  three  occasions  shortly  after  his  arrest  in  Florida  for  sexual  battery, 
respondent  was  given  Miranda  warnings,  and  in  each  instance  he  exer- 
cised his  right  to  remain  silent  and  stated  that  he  wished  to  speak  with 
an  attorney  before  answering  any  questions.  Respondent  later  pleaded 
not  guilty  by  reason  of  insanity,  and  in  the  closing  arguments  in  the 
Florida  trial  court,  the  prosecutor,  over  defense  counsel's  objection, 
reviewed  police  officer  testimony  as  to  the  occasions  on  which  respond- 
ent had  exercised  his  right  to  remain  silent,  and  suggested  that  respond- 
ent's repeated  refusals  to  answer  questions  without  first  consulting  an 
attorney  demonstrated  a  degree  of  comprehension  that  was  inconsistent 
with  his  claim  of  insanity.  Respondent's  subsequent  conviction  was  af- 
firmed by  the  Florida  Court  of  Appeal,  which  held  that  the  general  rule 
precluding  prosecutorial  comment  as  to  a  defendant's  exercise  of  his 
right  to  remain  silent  did  not  apply  to  a  case  in  which  an  insanity  plea 
was  filed.  Respondent  then  unsuccessfully  sought  habeas  corpus  relief 
in  Federal  District  Court,  but  the  Court  of  Appeals  reversed,  holding 
that  under  the  reasoning  of  Doyle  v.  Ohio,  426  U.  S.  610,  respondent 
was  entitled  to  a  new  trial. 

Held:  The  prosecutor's  use  of  respondent's  postarrest,  post-Miranda 
warnings  silence  as  evidence  of  sanity  violated  the  Due  Process  Clause  of 
the  Fourteenth  Amendment.  Pp.  289-295. 

(a)  In  Doyle,  supra,  it  was  held  that  the  prosecutor's  impeachment 
of  the  defendants'  exculpatory  testimony  by  asking  them   on   cross- 
examination  why  they  had  not  explained  their  conduct  at  the   time 
of  their  arrest  was  fundamentally  unfair  and  therefore   violated  the 
Due  Process  Clause.      The  source  of  the  unfairness  was  the  implicit 
assurance  contained  in  Miranda  warnings  that  silence  will  carry  no 
penalty.     Pp.  289-291. 

(b)  There  is  no  merit  to  the  argument  that  Doyle  does  not  control  this 
case  because  proof  of  sanity  is  significantly  different  from  proof  of  the 
commission  of  the  underlying  offense.     The  point  of  the  Doyle  holding  is 
that  it  is  fundamentally  unfair  to  promise  an  arrested  person  that  his  si- 
lence will  not  be  used  against  him  and  thereafter  to  breach  that  promise 
by  using  the  silence  to  impeach  his  trial  testimony.     It  is  equally  unfair 


WAINWRIGHT  v.  GREENFIELD  285 

284  Opinion  of  the  Court 

to  breach  that  promise  by  using  silence  to  overcome  a  defendant's  plea 
of  insanity.  South  Dakota  v.  Neville,  459  U.  S.  553,  distinguished. 
Pp.  292-293. 

(c)  The  argument  that  Doyle  should  not  control  this  case  because  a 
suspect's  comprehension  of  Miranda  warnings,  as  evidenced  by  his  si- 
lence, is  far  more  probative  of  sanity  than  of  commission  of  the  underly- 
ing offense,  is  also  unpersuasive.     Such  argument  fails  to  meet  the  prob- 
lem of  fundamental  unfairness  that  flows  from  the  State's  breach  of  its 
implied  assurances.     Pp.  293—294. 

(d)  A  State's  legitimate  interest  in  proving  that  the  defendant's  be- 
havior appeared  to  be  rational  at  the  time  of  his  arrest  can  be  served  by 
carefully  framed  questions  that  avoid  any  mention  of  the  defendant's  ex- 
ercise of  his  constitutional  rights  to  remain  silent  and  to  consult  counsel. 
Pp.  294-295. 

741  F.  2d  329,  affirmed. 

STEVENS,  J.,  delivered  the  opinion  of  the  Court,  in  which  BRENNAN, 
WHITE,  MARSHALL,  BLACKMUN,  POWELL,  and  O'CONNOR,  JJ.,  joined. 
REHNQUIST,  J. ,  filed  an  opinion  concurring  in  the  result,  in  which  BURGER, 
C.  J.,  joined,  post,  p.  296. 

Ann  Garrison  Paschall,  Assistant  Attorney  General  of 
Florida,  argued  the  cause  for  petitioner.  With  her  on  the 
briefs  was  Jim  Smith,  Attorney  General. 

James  D.  Whittemore,  by  appointment  of  the  Court,  472 
U.  S.  1006,  argued  the  cause  and  filed  a  brief  for 
respondent.  * 

JUSTICE  STEVENS  delivered  the  opinion  of  the  Court. 

Respondent  entered  a  plea  of  not  guilty  by  reason  of  insan- 
ity to  a  charge  of  sexual  battery.  At  his  trial  in  the  Circuit 
Court  for  Sarasota  County,  Florida,  the  prosecutor  argued 
that  respondent's  silence  after  receiving  Miranda  warnings 
was  evidence  of  his  sanity.  The  question  presented  is 
whether  such  use  of  a  defendant's  silence  violates  the  Due 
Process  Clause  of  the  Fourteenth  Amendment  as  construed 
in  Doyle  v.  Ohio,  426  U.  S.  610  (1976). 

*Briefs  of  amici  cunae  urging  affirmance  were  filed  for  the  American 
Civil  Liberties  Union  by  Charles  S  Sims  and  Jack  D.  Novik;  and  for  the 
Illinois  Psychological  Association  by  Donald  Paull  and  Marilyn  Martin. 


286  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 


The  battery  occurred  in  woods  near  a  beach  in  the  vicinity 
of  Sarasota,  Florida.  After  respondent  released  his  victim, 
she  drove  directly  to  the  police  station  to  report  the  incident. 
Based  on  her  description,  Officer  Pilifant  identified  respond- 
ent on  the  beach  and  placed  him  under  arrest  about  two  hours 
after  the  assault  occurred.  After  handcuffing  him,  the  offi- 
cer gave  respondent  the  warnings  required  by  our  decision  in 
Miranda  v.  Arizona,  384  U.  S.  436,  467-473  (1966).  Specifi- 
cally, Officer  Pilifant  stated: 

'"You  have  a  right  to  remain  silent.  Anything  you  say 
can  and  will  be  used  against  you  in  a  court  of  law.  You 
have  the  right  to  talk  to  a  lawyer  and  have  him  present 
with  you  while  you  are  being  questioned.  If  you  cannot 
afford  to  hire  a  lawyer  one  will  be  appointed  to  represent 
you  before  any  questioning  if  you  wish.  You  can  decide 
at  any  time  to  exercise  these  rights  and  not  answer  any 
questions  or  make  any  statements.  Do  you  understand 
each  of  these  rights  I  have  explained  to  you?  Having 
these  rights  in  mind  do  you  wish  to  talk  to  us  now?" 
App.  73. 

Respondent  replied  by  stating  that  he  understood  his 
rights  and  that  he  wanted  to  talk  to  an  attorney  before  mak- 
ing any  statement.  The  Miranda  warnings  were  repeated 
by  Officer  Pilifant  while  driving  to  the  police  station  and  reit- 
erated by  Detective  Jolley  after  they  arrived  at  the  station. 
Each  time  that  respondent  was  asked  "if  he  wished  to  give 
up  the  right  to  remain  silent,"  he  declined,  stating  that  he 
wanted  to  talk  to  an  attorney.  App.  77. 

Under  Florida  law,  when  a  defendant  pleads  not  guilty  by 
reason  of  insanity  and  when  his  evidence  is  sufficient  to  raise 
a  reasonable  doubt  about  his  sanity,  the  State  has  the  burden 
of  proving  sanity  beyond  a  reasonable  doubt.1  In  his  case  in 

1  See  Farrell  v.  State,  101  So.  2d  130,  133  (Fla.  1958)  ("when  there  is 
testimony  of  insanity  sufficient  to  present  a  reasonable  doubt  of  sanity  the 
presumption  [of  sanity]  vanishes.  The  defendant  is  then  entitled  to  an 


WAINWRIGHT  v.  GREENFIELD  287 

284  Opinion  of  the  Court 

chief,  the  prosecutor  introduced  the  testimony  of  Officer 
Pilifant  and  Detective  Jolley.  They  described  the  occasions 
on  which  respondent  had  exercised  his  right  to  remain  silent 
and  had  expressed  a  desire  to  consult  counsel  before  answer- 
ing any  questions.  Both  officers  repeated  the  several  collo- 
quies with  respondent.  In  his  defense,  respondent  did  not 
testify,  but  two  psychiatrists  expressed  the  opinion  that  he 
was  a  paranoid  schizophrenic  who  had  been  unable  to  distin- 
guish right  from  wrong  at  the  time  of  the  alleged  offense.  In 
rebuttal,  the  prosecutor  relied  on  a  third  psychiatrist  who 
expressed  a  contrary  opinion. 

In  his  closing  argument,  over  defense  counsel's  objection, 
the  prosecutor  reviewed  the  testimony  of  Officer  Pilifant  and 
Detective  Jolley  and  suggested  that  respondent's  repeated 
refusals  to  answer  questions  without  first  consulting  an  attor- 
ney demonstrated  a  degree  of  comprehension  that  was  incon- 
sistent with  his  claim  of  insanity.2  The  jury  found  respond- 
ent guilty  and  the  judge  sentenced  him  to  life  imprisonment. 


acquittal  if  the  state  does  not  overcome  the  reasonable  doubt"),  cited  in 
Greenfield  v.  State,  337  So.  2d  1021,  1023,  n.  2  (Fla.  App.  1976). 

2  He  argued,  in  part: 

"He  goes  to  the  car  and  the  officer  reads  him  his  Miranda  rights.  Does  he 
say  he  doesn't  understand  them?  Does  he  say  'what's  going  on?'  No. 
He  says  'I  understand  my  rights.  I  do  not  want  to  speak  to  you.  I  want 
to  speak  to  an  attorney. '  Again  an  occasion  of  a  person  who  knows  what's 
going  on  around  his  surroundings,  and  knows  the  consequences  of  his  act. 
Even  down— as  going  down  [to]  the  car  as  you  recollect  Officer  Pil[i]fant 
said  he  explained  what  Miranda  rights  meant  and  the  guy  said— and  Mr. 
Greenfield  said  'I  appreciate  that,  thanks  a  lot  for  telling  me  that.'  And 
here  we  are  to  believe  that  this  person  didn't  know  what  he  was  doing  at 
the  time  of  the  act,  and  then  even  down  at  the  station,  according  to  De- 
tective Jolley — He's  down  there.  He  says,  'Have  you  been  read  your 
Miranda  rights?'  'Yes,  I  have.'  'Do  you  want  to  talk?*  'No.'  'Do  you 
want  to  talk  to  an  attorney?'  'Yes.'  And  after  he  talked  to  the  attorney 
again  he  will  not  speak.  Again  another  physical  overt  indication  by  the 
defendant  .... 

[Footnote  2  ^s  continued  on  p.  288 J 


288  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

By  a  2-to-l  vote,  the  Florida  Court  of  Appeal  for  the  Sec- 
ond District  affirmed  the  conviction.  Greenfield  v.  State, 
337  So,  2d  1021  (1976).  After  noting  that  "prosecutorial 
comment  relating  to  a  defendant's  insistence  on  his  right  to 
remain  silent  generally  constitutes  reversible  error,"  id.,  at 
1022,  the  majority  held  that  the  general  rule  did  not  apply  to 
a  case  in  which  an  insanity  plea  had  been  filed.  The  dissent- 
ing judge  suggested  that  the  application  of  the  general  rule 
would  not  have  prejudiced  the  prosecution  because  the  "ques- 
tions and  answers  could  have  been  couched  in  such  a  manner 
as  to  permit  the  officer  to  convey  to  the  jury  the  fact  that  the 
appellant  carried  on  a  perfectly  rational  conversation  without 
specifically  stating  that  he  chose  to  avail  himself  of  his  right 
to  remain  silent."  Id.,  at  1023. 

The  Florida  Supreme  Court  granted  respondent's  petition 
for  certiorari  and  summarily  remanded  the  case  to  the  Court 
of  Appeal  for  reconsideration  in  light  of  Clark  v.  State,  363 
So.  2d  331  (1978),  a  case  in  which  it  had  held  that  improper 
comment  on  a  defendant's  silence  was  constitutional  error 
re  viewable  on  appeal  if  an  adequate  contemporaneous  objec- 
tion was  made  either  at  the  time  the  evidence  was  introduced 
or  at  the  time  of  the  prosecutor's  comment.  Greenfield  v. 
State,  364  So.  2d  885  (1978).  On  reconsideration,  the  Court 
of  Appeal  adhered  to  its  earlier  decision. 

Having  exhausted  his  state  remedies,  respondent  filed  a 
petition  for  a  writ  of  habeas  corpus  in  the  Federal  District 
Court.  The  petition  was  referred  to  a  Magistrate.  The 
State  argued  that  the  silence  issue  was  barred  because 
respondent's  counsel  had  failed  to  make  an  adequate  ob- 
jection. The  Magistrate  concluded  that  federal  review  of 
the  claim  was  not  foreclosed  because  counsel  had  objected  to 
the  prosecutor's  closing  argument  and  because  the  Florida 
Court  of  Appeal  had  rejected  the  claim  on  its  merits.  The 


"So  here  again  we  must  take  this  in  consideration  as  to  his  guilt  or  inno- 
cence, in  regards  to  sanity  or  insanity."     App.  96-98. 


WAINWRIGHT  v.  GREENFIELD  289 

284  Opinion  of  the  Court 

Magistrate,  however,  agreed  with  the  Florida  courts'  dispo- 
sition of  the  merits  and  recommended  that  the  habeas  corpus 
petition  be  denied.  The  District  Court  accepted  that 
recommendation. 3 

The  United  States  Court  of  Appeals  for  the  Eleventh 
Circuit  reversed.  741  F.  2d  329  (1984).  Disagreeing  with 
two  other  Federal  Courts  of  Appeals4— but  not  with  the  po- 
sition taken  by  the  Florida  Supreme  Court  in  a  case  decided 
after  this  respondent  had  exhausted  his  state  remedies,  see 
State  v.  Burwick,  442  So.  2d  944  (1983),  cert,  denied,  466 
U.  S.  931  (1984)— the  Court  of  Appeals  held  that  under  the 
reasoning  of  Doyle  v.  Ohio,  426  U.  S.  610  (1976),  respondent 
was  entitled  to  a  new  trial.  We  agree. 

II 

In  Doyle,  the  defendants  had  taken  the  witness  stand  and 
offered  an  exculpatory  explanation  for  their  participation  in 
what  the  State's  evidence  had  portrayed  as  a  routine  mari- 
huana transaction.  On  cross-examination  the  prosecutor  im- 
peached their  testimony  by  asking  them  why  they  had  not  ex- 
plained their  conduct  at  the  time  of  their  arrest.  The  Court 
held  that  such  cross-examination  was  fundamentally  unfair 

3  The  Florida  Attorney  General  did  not  object  to  the  Magistrate's  con- 
clusion that  the  Florida  Court  of  Appeal  had  rejected  respondent's  claim  on 
its  merits.  In  his  petition  for  rehearing  in  the  United  States  Court  of 
Appeals  for  the  Eleventh  Circuit,  the  Attorney  General  renewed  the  argu- 
ment that  the  postarrest,  post-Miranda  warnings  silence  issue  was  barred 
by  Wainwright  v.  Sykes,  433  U.  S.  72  (1977).  He  advances  the  same  argu- 
ment in  this  Court.  However,  as  the  Magistrate  concluded,  the  Florida 
appellate  court  clearly  addressed  the  issue  on  the  merits.  Thus,  we  must 
reject  the  Attorney  General's  argument.  See  Ulster  County  Court  v. 
Allen,  442  U.  S.  140,  149  (1979);  Mullaney  v.  Wilbur,  421  U.  S.  684,  704, 
n.  (1975)  (REHNQUIST,  J.,  concurring).  Cf.  Franks  v.  Delaware,  438 
U.  S.  154,  161-162  (1978);  Raley  v.  Ohio,  360  U.  S.  423,  436-437  (1959); 
Manhattan  Life  Insurance  Co  v.  Cohen,  234  U.  S.  123,  134  (1914). 

4 See  Sulie  v.  Duckworth,  689  F.  2d  128  (CA7  1982),  cert,  denied,  460 
U.  S.  1043  (1983);  United  States  v.  Trujillo,  578  F.  2d  285  (CA10),  cert, 
denied,  439  U.  S.  858  (1978). 


290  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

and  therefore  violated  the  Due  Process  Clause  of  the  Four- 
teenth Amendment. 

The  source  of  the  unfairness  was  the  implicit  assurance 
contained  in  the  Miranda  warnings  "that  silence  will  carry  no 
penalty."5  The  critical  importance  of  the  implied  promise 
that  is  conveyed  to  an  arrested  person  by  the  Miranda  warn- 
ings has  been  repeatedly  confirmed  in  subsequent  decisions. 
Thus,  in  Fletcher  v.  Weir,  455  U.  S.  603,  606  (1982),  we 
explained: 

"In  Jenkins  [v.  Anderson,  447  U.  S.  231  (1980)],  as  in 
other  post-Doyle  cases,  we  have  consistently  explained 
Doyle  as  a  case  where  the  government  had  induced  si- 
lence by  implicitly  assuring  the  defendant  that  his  silence 
would  not  be  used  against  him.  In  Roberts  v.  United 
States,  445  U.  S.  552,  561  (1980),  we  observed  that  the 

6  "Moreover,  while  it  is  true  that  the  Miranda  warnings  contain  no 
express  assurance  that  silence  will  carry  no  penalty,  such  assurance  is 
implicit  to  any  person  who  receives  the  warnings.  In  such  circumstances, 
it  would  be  fundamentally  unfair  and  a  deprivation  of  due  process  to  allow 
the  arrested  person's  silence  to  be  used  to  impeach  an  explanation  subse- 
quently offered  at  trial.  MR.  JUSTICE  WHITE,  concurring  in  the  judgment 
in  United  States  v.  Hale,  [422  U.  S.],  at  182-183,  put  it  very  well: 

"  *[W]hen  a  person  under  arrest  is  informed,  as  Miranda  requires,  that 

he  may  remain  silent,  that  anything  he  says  may  be  used  against  him,  and 

that  he  may  have  an  attorney  if  he  wishes,  it  seems  to  me  that  it  does  not 

comport  with  due  process  to  permit  the  prosecution  during  the  trial  to  call 

attention  to  his  silence  at  the  time  of  arrest  and  to  insist  that  because  he 

did  not  speak  about  the  facts  of  the  case  at  that  time,  as  he  was  told  he 

need  not  do,  an  unfavorable  inference  might  be  drawn  as  to  the  truth  of  his 

trial  testimony.  .  .  .  Surely  Hale  was  not  informed  here  that  his  silence,  as 

well  as  his  words,  could  be  used  against  him  at  trial.      Indeed,  anyone 

would  reasonably  conclude  from  Miranda  warnings  that  this  would  not  be 

the  case/"     Doyle  v.  Ohio,  426  U.  S.,  at  618-619  (footnotes  omitted). 

In  United  States  v.  Hale,  422  U.  S.  171  (1975),  the  Court  had  held  that 

the  use  of  postarrest,  post-Miranda  warnings  silence  was  impermissible  in 

federal  prosecutions.      The  Court  based  its  holding  on  its  supervisory 

power  in  federal  proceedings  and  left  open  the  constitutional  question. 

JUSTICE  WHITE'S  concurrence  argued  that  the  use  violated  due  process, 

and  it  was  that  view  the  Court  adopted  in  Doyle. 


WAINWRIGHT  v.  GREENFIELD  291 

284  Opinion  of  the  Court 

postconviction,  presentencing  silence  of  the  defendant 
did  not  resemble  "postarrest  silence  that  may  be  induced 
by  the  assurances  contained  in  Miranda  warnings/  In 
Jenkins,  we  noted  that  the  failure  to  speak  involved  in 
that  case  occurred  before  the  defendant  was  taken  into 
custody  and  was  given  his  Miranda  warnings,  comment- 
ing that  no  governmental  action  induced  the  defendant  to 
remain  silent  before  his  arrest.  447  U.  S.,  at  239-240. 
Finally,  in  Anderson  v.  Charles,  447  U.  S.  404,  407-408 
(1980),  we  explained  that  use  of  silence  for  impeachment 
was  fundamentally  unfair  in  Doyle  because  'Miranda 
warnings  inform  a  person  of  his  right  to  remain  silent 
and  assure  him,  at  least  implicitly,  that  his  silence  will 
not  be  used  against  him.  .  .  .  Doyle  bars  the  use  against  a 
criminal  defendant  of  silence  maintained  after  receipt  of 
governmental  assurances/" 

Since  Fletcher,  moreover,  we  have  continued  to  reiterate 
our  view  that  Doyle  rests  on  "the  fundamental  unfairness  of 
implicitly  assuring  a  suspect  that  his  silence  will  not  be  used 
against  him  and  then  using  his  silence  to  impeach  an  explana- 
tion subsequently  offered  at  trial."  South  Dakota  v.  Neville, 
459  U.  S.  553,  565  (1983). 6  Doyle  and  subsequent  cases 
have  thus  made  clear  that  breaching  the  implied  assurance  of 
the  Miranda  warnings  is  an  affront  to  the  fundamental  fair- 
ness that  the  Due  Process  Clause  requires.7 

6  That    this    "fundamental    unfairness"    derives    from   the    implicit   as- 
surances of  the  Miranda  warnings  is  supported  by  our  holdings  that  due 
process  is  not  violated  by  the  impeachment  use  of  pice-Miranda  warnings 
silence,  either  before  arrest,  Jenkins  v.  Anderson,  447  U.  S.  231  (1980),  or 
after  arrest,  Fletcher  v.  Weir,  455  U.  S.  603  (1982),  or  of  post-Miranda 
warnings  statements,  Anderson  v.  Charles,  447  U.  S.  404  (1980);  nor  is  it 
violated  by  the  use  of  a  refusal  to  take  a  state  test  that  does  not  involve 
Miranda-like  warnings,  Neville. 

7  Notably,  the  Court  in  Doyle  did  not  rely  on  the  contention  that  Ohio 
had  violated  the  defendants'  Fifth  Amendment  privilege  against  self- 
incrimination  by  asking  the  jury  to  draw  an  inference  of  guilt  from  the 
exercise  of  their  constitutional  right  to  remain  silent.     Cf.  Griffin  v.  Call- 


292  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

The  Florida  Attorney  General  argues  that  Doyle  does  not 
control  this  case  because  proof  of  sanity  is  significantly  differ- 
ent from  proof  of  the  commission  of  the  underlying  offense, 
and  that  the  Doyle  due  process  rationale  thus  does  not  apply. 
At  the  outset,  we  note  that,  in  this  case,  unlike  Doyle  and  its 
progeny,  the  silence  was  used  as  affirmative  proof  in  the  case 
in  chief,  not  as  impeachment.8     The  Florida  Attorney  Gen- 
eral argues  that  an  insanity  defense  should  be  viewed  as  an 
"affirmative  defense,"  and  that  the  use  of  silence  to  overcome 
an  insanity  defense  should  thus  be  viewed  as  impeachment. 
Without  accepting  that  argument,  or  its  characterization  of 
the  insanity  defense,9  we  address  the  claim  that  the  Doyle 
due  process  analysis  should  not  prevent  the  use  of  post- 
Miranda  warnings  silence  to  overcome  an  insanity  defense. 
We  find  no  warrant  for  the  claimed  distinction  in  the  rea- 
soning of  Doyle  and  of  subsequent  cases.     The  point  of  the 
Doyle  holding  is  that  it  is  fundamentally  unfair  to  promise  an 
arrested  person  that  his  silence  will  not  be  used  against  him 
and  thereafter  to  breach  that  promise  by  using  the  silence  to 
impeach  his  trial  testimony.     It  is  equally  unfair  to  breach 
that  promise  by  using  silence  to  overcome  a  defendant's  plea 
of  insanity.     In  both  situations,  the  State  gives  warnings  to 
protect  constitutional  rights  and  implicitly  promises  that  any 
exercise  of  those  rights  will  not  be  penalized.     In  both  situa- 
tions, the  State  then  seeks  to  make  use  of  the  defendant's 
exercise  of  those  rights  in  obtaining  his  conviction.      The 
implicit  promise,  the  breach,   and  the  consequent  penalty 
are  identical  in  both  situations. 


fornia,  380  U.  S.  609  (1965)  (Fifth  Amendment  prohibits  prosecutorial 
comment  on  defendant's  refusal  to  testify). 

8  The  constitutional  violation  might  thus  be  especially  egregious  be- 
cause, unlike  Doyle,  there  was  no  risk  "that  exclusion  of  the  evidence 
[would]  merely  provide  a  shield  for  perjury."  426  U.  S. ,  at  626  (STEVENS, 
J.,  dissenting). 

9Cf.  n.  1,  supra. 


WAINWRIGHT  v.  GREENFIELD  293 

284  Opinion  of  the  Court 

The  Florida  Attorney  General  argues,  however,  that  intro- 
duction of  the  evidence  of  respondent's  post-Miranda  warn- 
ings silence  no  more  violates  the  Constitution  than  did  the 
reference  to  a  defendant's  refusal  to  take  a  blood-alcohol  test 
in  South  Dakota  v.  Neville,  supra.  In  Neville,  we  rejected 
the  due  process  challenge— and  the  attempt  to  rely  on 
Doyle— because  of  the  important  differences  between  the 
refusal  to  take  a  blood-alcohol  test  and  the  post-Miranda 
warnings  silence.  We  noted  that,  unlike  the  refusal  to  take 
an  optional  blood-alcohol  test,  the  right  of  silence  after 
Miranda  warnings  is  of  constitutional  dimension.  459  U.  S. , 
at  565.  We  also  noted  that,  unlike  the  state  warning  about 
the  refusal  to  take  the  blood-alcohol  test  (which  expressly 
advised  Neville  that  his  refusal  could  be  used  to  deprive  him 
of  his  driving  privileges),  Miranda  warnings  contain  implied 
assurances  that  silence  will  not  be  used  against  the  suspect. 
459  U.  S.,  at  565-566.  Both  Doyle  elements— the  constitu- 
tional dimension  and  the  implied  assurance — are  equally 
present  when  post-Miranda  warnings  silence  is  used  to  prove 
sanity.  Unlike  Neville,  therefore,  and  like  Doyle,  Green- 
field received  "the  sort  of  implicit  promise  to  forgo  use  of 
evidence  that  would  unfairly  'trick'  [him]  if  the  evidence  were 
later  offered  against  him  at  trial."  459  U.  S.,  at  566. 10 

The  Florida  Attorney  General  further  contends  that  a  sus- 
pect's comprehension  of  Miranda  warnings,  as  evidenced  by 
his  silence,  is  far  more  probative  of  sanity  than  of  commission 
of  the  underlying  offense.  He  therefore  argues  that  the  reli- 
ance on  the  "insolubly  ambiguous"  character  of  the  post- 
Miranda  warnings  silence  in  the  Doyle  opinion,  426  U.  S.,  at 
617,  is  inappropriate  in  the  context  of  an  insanity  defense. 
We  need  not  evaluate  the  probative  value  of  respondent's  si- 


10  To  the  extent  that  the  Attorney  General  seeks  to  rely  on  Neville's 
Fifth  Amendment  holding,  his  argument  is  inapposite  because  the  Doyle 
analysis  rests  on  the  Due  Process  Clause,  not  the  Fifth  Amendment. 


294  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

lence  to  reject  this  argument.11  For  the  ambiguity  of  the  de- 
fendants' silence  in  Doyle  merely  added  weight  to  the  Court's 
principal  rationale,  which  rested  on  the  implied  assurance 
contained  in  the  Miranda  warning.  See  South  Dakota  v. 
Neville,  459  U.  S.,  at  564-565;  Jenkins  v.  Anderson,  447 
U.  S.  231,  239-240  (1980). u  The  Attorney  General's  argu- 
ment about  the  probative  value  of  silence  therefore  fails  en- 
tirely to  meet  the  problem  of  fundamental  unfairness  that 
flows  from  the  State's  breach  of  its  implied  assurances. 

Finally,  the  Florida  Attorney  General  argues  that  it  is  vi- 
tally important  to  be  able  to  present  evidence  of  a  defendant's 
sanity  at  the  time  of  the  offense  and  shortly  thereafter. 


11  We  note,  however,  that  the  Florida  Supreme  Court  does  not  share  the 
Florida  Attorney  General's  view  about  the  probative  value  of  silence  in 
an  insanity  context.  As  the  Florida  court  wrote  in  State  v.  Burwick,  442 
So.  2d  944,  948  (1983): 

"Post-arrest,  post-Miranda  silence  is  deemed  to  have  dubious  probative 
value  by  reason  of  the  many  and  ambiguous  explanations  for  such  silence. 
422  U.  S.  at  180  ....  Contrary  to  what  Greenfield  intimates,  these  ambi- 
guities attendant  to  -post-Miranda  silence  do  not  suddenly  disappear  when 
an  arrestee's  mental  condition  is  brought  into  issue.  The  same  evidentiary 
problems  addressed  by  the  Supreme  Court  in  Hale  are  present  in  the  case 
before  us.  For  example,  one  could  reasonably  conclude  that  custodial  in- 
terrogation might  intimidate  a  mentally  unstable  person  to  silence.  Like- 
wise, an  emotionally  disturbed  person  could  be  reasonably  thought  to  rely 
on  the  assurances  given  during  a  Miranda  warning  and  thereafter  choose 
to  remain  silent.  In  sum,  just  what  induces  post-arrest,  post-Miranda  si- 
lence remains  as  much  a  mystery  today  as  it  did  at  the  time  of  the  Hale 
decision.  Silence  in  the  face  of  accusation  is  an  enigma  and  should  not  be 
determinative  of  one's  mental  condition  just  as  it  is  not  determinative  of 
one's  guilt.  Accordingly,  the  state  should  not  be  permitted  to  confirm 
Burwick's  mental  state  with  evidence  of  his  post- Miranda  silence." 

12  Several  commentators  have  also  emphasized  that,  particularly  in  light 
of  later  cases,  Doyle's  probativeness  rationale  is  secondary  to  its  implied 
assurance  rationale.  See,  e.  g.,  Note,  Protecting  Doyle  Rights  After 
Anderson  v.  Charles:  The  Problem  of  Partial  Silence,  69  Va.  L.  Rev.  155, 
165,  n.  56  (1983);  Clark,  Impeachment  With  Post-Arrest  Silence:  The 
Emergence  of  a  "New  Federalism"  Approach,  19  Am.  Crim.  L.  Rev.  751, 
759  (1982);  The  Supreme  Court,  1979  Term,  94  Harv.  L.  Rev.  77,  84-85 
(1980). 


WAINWRIGHT  u  GREENFIELD  295 

284  Opinion  of  the  Court 

However,  as  the  dissenting  judge  in  the  Florida  Court  of  Ap- 
peal recognized  in  this  very  case,  the  State's  legitimate  inter- 
est in  proving  that  the  defendant's  behavior  appeared  to  be 
rational  at  the  time  of  his  arrest  could  have  been  served  by 
carefully  framed  questions  that  avoided  any  mention  of  the 
defendant's  exercise  of  his  constitutional  rights  to  remain 
silent  and  to  consult  counsel.13  What  is  impermissible  is  the 
evidentiary  use  of  an  individual's  exercise  of  his  constitu- 
tional rights  after  the  State's  assurance  that  the  invocation  of 
those  rights  will  not  be  penalized. 

In  Doyle,  we  held  that  Miranda  warnings  contain  an  im- 
plied promise,  rooted  in  the  Constitution,  that  "silence  will 
carry  no  penalty."  426  U.  S.,  at  618.  Our  conclusion  that  it 
was  fundamentally  unfair  for  the  Ohio  prosecutor  to  breach 
that  promise  by  using  the  defendants'  postarrest,  post- 
Miranda  warnings  silence  to  impeach  their  trial  testimony 
requires  us  also  to  conclude  that  it  was  fundamentally  unfair 
for  the  Florida  prosecutor  to  breach  the  officers'  promise  to 
respondent  by  using  his  postarrest,  post-Miranda  warnings 
silence  as  evidence  of  his  sanity. 14 

The  judgment  of  the  Court  of  Appeals  is  affirmed. 

It  is  so  ordered. 


13  In  his  petition  and  brief,  the  Attorney  General  has  not  contested  the 
Eleventh  Circuit's  view  that  the  prosecutor ial  comment  was  directed  at  the 
"defendant's  post- Miranda  warning  silence,"  741  F.  2d  329,  333  (1984),  or 
its  conclusion  that  this  comment,  if  erroneous,  was  not  harmless,  id.,  at 
336.     Nor  has  respondent  contested  the  point  that  a  prosecutor  may  legiti- 
mately inquire  into  and  comment  upon  "purely  'demeanor'  or  'behavior'  evi- 
dence."    Brief  for  Respondent  14.     With  respect  to  post-Miranda  warn- 
ings "silence,"  we  point  out  that  silence  does  not  mean  only  muteness;  it 
includes  the  statement  of  a  desire  to  remain  silent,  as  well  as  of  a  desire  to 
remain  silent  until  an  attorney  has  been  consulted. 

14  This  conclusion  is  supported  by  a  number  of  state  decisions,  in  addition 
to  that  of  Florida.      See  Commonwealth  v.  Mahdi,  388  Mass.  679,  448 
N.  E.  2d  704  (1983);  People  v.  Vanda,  111  111.  App.  3d  551,  444  N.  E.  2d 
609  (1982),  cert,  denied,  464  U.  S.  841  (1983);  People  v.  Schindler,  114  Cal. 
App.  3d  178,  170  Cal.  Rptr.  461  (1980). 


296  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  concurring  in  result  474  U.  S. 

JUSTICE  REHNQUIST,   with  whom  THE  CHIEF  JUSTICE 
joins,  concurring  in  the  result. 

I  agree  with  the  Court  that  our  opinion  in  Doyle  v.  Ohio, 
426  U.  S.  610  (1976),  shields  from  comment  by  a  prosecutor  a 
defendant's  silence  after  receiving  Miranda  warnings,  even 
though  the  comment  be  addressed  to  the  defendant's  claim  of 
insanity.     I  write  separately,  however,  to  point  out  that  it 
does  not  follow  from  this  that  the  Court  of  Appeals,  which 
took  the  same  position,  reached  the  correct  result.      That 
court  expanded  Doyle  to  cover  not  merely  silence,  but  re- 
quests for  counsel,  and  ignored  the  fact  that  the  evidence 
upon  which  the  prosecutor  commented  had  been  admitted 
without  objection.     Analyzed  in  these  terms,  the  Court  of 
Appeals'  conclusion  that  the  "error"  was  not  harmless  is  sus- 
pect: The  portion  of  the  prosecutor's  closing  statement  that 
the  Court  of  Appeals  held  amounted  to  constitutional  error 
was  in  large  part  unobjectionable  from  a  constitutional  point 
of  view,  and  the  officer's  testimony  relating  to  silence  was  al- 
ready before  the  jury,  without  objection.     I  concur  in  the  re- 
sult reached  today  because  one  of  the  prosecutor's  comments, 
however  brief,  was  an  improper  comment  on  respondent's 
silence,  and  the  State  does  not  argue  here  that  any  error 
was  harmless  beyond  a  reasonable  doubt. 
In  Doyle,  the  Court  said: 

"The  warnings  mandated  by  [Miranda]  .  .  .  require  that 
a  person  taken  into  custody  be  advised  immediately  that 
he  has  the  right  to  remain  silent,  that  anything  he  says 
may  be  used  against  him,  and  that  he  has  a  right  to  re- 
tained or  appointed  counsel  before  submitting  to  interro- 
gation. Silence  in  the  wake  of  these  warnings  may  be 
nothing  more  than  the  arrestee's  exercise  of  these 
Miranda  rights.  Thus,  every  post-arrest  silence  is  in- 
solubly  ambiguous  because  of  what  the  State  is  required 
to  advise  the  person  arrested.  .  .  .  Moreover,  while  it  is 
true  that  the  Miranda  warnings  contain  no  express  as- 
surance that  silence  will  carry  no  penalty,  such  assur- 


WAINWRIGHT  u  GREENFIELD  297 

284  REHNQUIST,  J. ,  concurring  in  result 

ance  is  implicit  to  any  person  who  receives  the  warnings. 
In  such  circumstances,  it  would  be  fundamentally  unfair 
and  a  deprivation  of  due  process  to  allow  the  arrested 
person's  silence  to  be  used  to  impeach  an  explanation 
subsequently  offered  at  trial."  426  U.  S.,  at  617-618 
(footnotes  omitted). 

Doyle  addressed  the  propriety  of  cross-examining  defend- 
ants about  their  silence  following  Miranda  warnings.  Here 
the  Court  of  Appeals  assumed,  without  analysis,  that  re- 
spondent's conduct  and  statements  following  the  warnings, 
such  as  his  requests  for  a  lawyer,  should  be  treated  the  same 
as  silence.  I  disagree.  Doyle  deemed  silence  "insolubly 
ambiguous" — the  defendant  may  be  indicating  he  has  nothing 
to  say  in  his  defense,  or  he  may  be  relying  on  the  assurance 
that  he  has  a  right  to  remain  silent.  Similarly,  a  request  for 
a  lawyer  has  essentially  no  probative  value  where  the  ques- 
tion is  one  of  guilt  or  innocence:  No  sensible  person  would 
draw  an  inference  of  guilt  from  a  defendant's  request  for  a 
lawyer  after  he  had  been  told  he  had  a  right  to  consult  one;  it 
is  simply  not  true  that  only  a  guilty  person  would  want  to 
have  a  lawyer  present  when  being  questioned  by  the  police. 

But  a  request  for  a  lawyer  may  be  highly  relevant  where 
the  plea  is  based  on  insanity.  There  is  no  "insoluble  ambigu- 
ity" in  the  request;  it  is  a  perfectly  straightforward  state- 
ment tending  to  show  that  an  individual  is  able  to  understand 
his  rights  and  is  not  incoherent  or  obviously  confused  or  un- 
balanced. While  plainly  not  conclusive  proof  of  sanity,  the 
request  for  a  lawyer,  like  other  coherent  and  responsive 
statements  made  near  the  time  of  the  crime,  is  certainly 
relevant.  * 


*It  may  be,  as  the  Court  suggests,  that  the  prosecution  could  have 
served  its  legitimate  purposes  "by  carefully  framed  questions  that  avoided 
any  mention  of  the  defendant's  exercise  of  his  constitutional  righ[t]  ...  to 
consult  counsel,"  ante,  at  295.  That  the  prosecutor  might  have  done 
things  differently,  however,  does  not  render  unconstitutional  his  express 
reference  to  respondent's  invocation  of  his  right  to  counsel.  Indeed,  I 


298  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  concurring  in  result  474  U.  S. 

Nor  does  the  "unfairness"  prong  of  Doyle,  based  on  the  im- 
plicit assurance  in  the  Miranda  warnings  that  "silence  will 
carry  no  penalty,"  bar  prosecutorial  comment  on  respond- 
ent's requests  for  a  lawyer.  Officer  Pilifant  told  respondent: 
"You  have  a  right  to  remain  silent.  Anything  you  say  can 
and  will  be  used  against  you  in  a  court  of  law."  App.  73. 
The  logical  corollary  of  this  warning— that  what  respondent 
does  say  can  be  used  against  him— is  that  what  he  does  not 
say  cannot. 

Officer  Pilifant's  description  of  respondent's  right  to  coun- 
sel was  framed  differently: 

"You  have  the  right  to  talk  to  a  lawyer  and  have  him 
present  with  you  while  you  are  being  questioned.  If 
you  cannot  afford  to  hire  a  lawyer  one  will  be  appointed 
to  represent  you  before  any  questioning  if  you  wish." 
Ibid. 

I  do  not  read  the  foregoing  statement  as  containing  any 
promise,  express  or  implied,  that  the  words  used  in  respond- 
ing to  notice  of  the  right  to  a  lawyer  will  not  be  used  by  the 
State  to  rebut  a  claim  of  insanity.  In  the  absence  of  such  a 
promise,  respondent  surely  was  not  "tricked"  into  asking  for 
a  lawyer,  and  the  prosecutor's  reference  to  respondent's  re- 
quest was  in  no  way  "fundamentally  unfair." 

Nor  do  I  believe  that  relevant  comment  about  the  invoca- 
tion of  the  right  to  an  attorney,  made  in  an  effort  to  defeat  a 
claim  of  insanity,  works  the  sort  of  "penalty"  condemned  in 
Doyle.  Inviting  the  jury  to  draw  an  inference  of  guilt,  which 
separates  a  defendant  from  the  mass  of  society,  is  one  thing; 
inviting  it  to  draw  an  inference  of  sanity  or  rationality,  which 
merely  places  a  defendant  together  with  the  mass  of  society, 
is  quite  another.  A  suspect's  right  to  an  attorney  during 


would  think  that  quotation  of  a  defendant's  precise  words  is  a  far  more 
effective  means  of  disproving  insanity  than  are  general  references  to  his 
"rationality"  or  "responsiveness." 


WAINWRIGHT  v.  GREENFIELD  299 

284  REHNQUIST,  J.,  concurring  in  result 

questioning,  which  is  derivative  of  his  right  to  remain  silent, 
see  Miranda  v.  Arizona,  384  U.  S.  436,  469-470  (1966),  is  not 
unconstitutionally  burdened  by  use  of  his  request  as  evidence 
of  his  ability  to  distinguish  right  from  wrong. 

Turning  to  the  prosecutor's  closing  argument  in  this  case,  I 
believe  that  far  less  of  what  the  Court  of  Appeals  described 
as  the  "challenged  portion"  violated  Doyle  than  did  the  Court 
of  Appeals.  That  "challenged  portion"  consists  of  the  follow- 
ing statement: 

"Let's  go  on  to  Officer  Pilifant  who  took  the  stand,  who 
the  psychiatrists,  both  defense  psychiatrists,  never  even 
heard  about,  never  even  talked  to.  He  states  that  he 
saw  this  fellow  [respondent]  on  the  beach  and  that  he 
went  up  to  him,  talked  to  him,  and  then  arrested  him  for 
the  offense.  The  fellow  voluntarily  put  his  arms  behind 
his  back  and  said  he  would  go  to  the  car. .  This  is  suppos- 
edly an  insane  person  under  the  throws  [sic]  of  an  acute 
condition  of  schizophrenic  paranoia  at  the  time.  He 
goes  to  the  car  and  the  officer  reads  him  his  Miranda 
rights.  Does  he  say  he  doesn't  understand  them?  Does 
he  say  'What's  going  on?'  No.  He  says  'I  understand 
my  rights.  I  do  not  want  to  speak  to  you.  I  want  to 
speak  to  an  attorney.'  Again  an  occasion  of  a  person 
who  knows  what's  going  on  around  his  surroundings,  and 
knows  the  consequences  of  his  act.  Even  down — as 
going  down  [to]  the  car  as  you  recollect  Officer  Pil[i]fant 
said  he  explained  what  Miranda  rights  meant  and  the 
guy  said— and  Mr.  Greenfield  said  'I  appreciate  that, 
thanks  a  lot  for  telling  me  that.'  And  here  we  are  to  be- 
lieve that  this  person  didn't  know  what  he  was  doing  at 
the  time  of  the  act,  and  then  even  down  at  the  station, 
according  to  Detective  Jolley— He's  down  there.  He 
says,  'Have  you  been  read  your  Miranda  rights?'  'Yes, 
I  have.'  'Do  you  want  to  talk?'  'No.'  'Do  you  want  to 
talk  to  an  attorney?'  'Yes.'  And  after  he  talked  to  the 


300  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  concurring  in  result  474  U.  S. 

attorney  again  he  will  not  speak.  Again  another  physi- 
cal overt  indication  by  the  defendant  .... 

"So  here  again  we  must  take  this  in  consideration  as  to 
his  guilt  or  innocence,  in  regards  to  sanity  or  insanity." 
App.  96-98. 

The  first  part  of  the  statement  describes,  in  the  words  of 
the  arresting  officer,  prearrest  conduct  of  the  defendant. 
Doyle  does  not  bar  this  sort  of  testimony.  Fletcher  v.  Weir, 
455  U.  S.  603  (1982).  When  the  defendant  was  read  his 
Miranda  rights,  he  did  not  remain  silent;  he  said: 

"I  understand  my  rights.  I  do  not  want  to  speak  to  you. 
I  want  to  speak  to  an  attorney.  .  .  .  [And  then]  I 
appreciate  that,  thanks  a  lot  for  telling  me  that." 

Thus  Doyle  does  not  cover  this  portion  of  the  closing  argu- 
ment either.  While  a  defendant's  invocation  of  his  right  to 
an  attorney,  or  his  statement  that  he  understands  (and  ap- 
preciates being  informed  about)  his  rights,  would  be  largely 
irrelevant  in  the  case  of  most  defenses,  it  is  surely  relevant  in 
the  context  of  a  claim  of  insanity. 

The  only  portion  of  the  summation  that  can,  in  my  opinion, 
be  said  to  violate  Doyle  is  the  following: 

"[E]ven  down  at  the  station,  according  to  Detective 
Jolley — He's  down  there.  He  says,  'Have  you  been  read 
your  Miranda  rights?'  'Yes,  I  have/  'Do  you  want  to 
talk?'  'No.'  'Do  you  want  to  talk  to  an  attorney?' 
*Yes.'  And  after  he  talked  to  the  attorney  again  he  will 
not  speak." 

This  is  a  comment  on  respondent's  silence,  and  as  such  it  con- 
stitutes a  breach  of  the  Miranda  warning's  "implied  assur- 
ance" that  his  silence  would  not  be  used  against  him. 

The  Court  of  Appeals'  determination  that  the  prosecutor's 
error  was  not  harmless  was  based  on  its  apparent  conclusion 
that  all  of  the  "challenged  portion"  of  the  prosecutor's  state- 


WAINWRIGHT  u  GREENFIELD  301 

284  REHNQUIST,  J.,  concurring  in  result 

ment  violated  the  constitutional  rights  of  the  defendant. 
The  court  stated: 

"The  prosecutor  relied  strongly  on  [respondent's]  con- 
duct as  evidence  of  sanity;  his  closing  argument  was  not 
lengthy  and  the  portion  challenged  here  was  not  minor. 
We  cannot  say  that  the  error  was  harmless  beyond  a  rea- 
sonable doubt."  741  F.  2d  329,  336  (1984)  (emphasis 
added). 

But  as  noted  above,  actually  a  much  smaller  portion  of  this 
statement  was  constitutionally  objectionable.  And  in  eval- 
uating whether  or  not  this  minute  extract  from  the  prosecu- 
tor's closing  argument  can  be  deemed  harmless,  I  think  an 
important  factor  apparently  not  considered  by  the  Court  of 
Appeals  was  that  the  testimony  on  which  the  summation  was 
based  had  already  come  in  without  objection.  It  was  there 
for  the  jury  to  consider  on  its  own  regardless  of  whether  the 
prosecutor  ever  mentioned  it.  This  fact,  together  with  the 
brevity  of  the  prosecutor's  improper  comment,  at  least  sug- 
gests that  the  error  was  harmless  beyond  a  reasonable  doubt. 
See  Cupp  v.  Naughten,  414  U.  S.  141  (1973);  Donnelly  v. 
DeChristoforo,  416  U.  S.  637  (1974).  As  the  Court  points 
out,  however,  ante,  at  295,  n.  13,  the  Attorney  General  has 
not  contested  the  Court  of  Appeals'  conclusion  that  any  error 
was  not  harmless.  Accordingly,  I  concur  in  the  result. 


302  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

UNITED  STATES  v.  LOUD  HAWK  ET  AL. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  NINTH  CIRCUIT 

No.  84-1361.     Argued  November  12,  1985— Decided  January  21,  1986 

Respondents  were  arrested  and  indicted  in  November  1975  on  counts  of 
possessing  firearms  and  dynamite.     In  March  1976,  the  Federal  District 
Court  granted  respondents'  motion  to  suppress  evidence  relating  to  the 
dynamite  counts,  and  the  Government  promptly  filed  a  notice  of  appeal 
and  requested  a  continuance.     The  District  Court  denied  this  request 
and,  when  the  Government  answered  "not  ready"  after  the  case  was 
called  for  trial,  dismissed  the  indictment.      The  Government  appealed 
this  dismissal,  and  the  two  appeals  were  consolidated.     In  August  1979, 
the  Court  of  Appeals  reversed  the  suppression  order,  ordered  that  the 
dynamite  counts  be  reinstated,  and  held  that  the  District  Court  erred  in 
dismissing  the  firearms  counts.     In  November  1979,  respondents  filed  a 
petition  for  certiorari,  which  this  Court  denied.     The  Court  of  Appeals' 
mandate  issued  in  March  1980,  46  months  after  the  Government  filed  its 
notice  of  appeal  from  the  dismissal  of  the  indictment,  during  which  time 
respondents  were  unconditionally  released.      On  remand,  the  District 
Court  ordered  the  Government  to  reindict  on  the  firearms  charges.     In 
August  1980,  the  District  Court  granted  a  motion  to  dismiss  on  the 
ground  of  vindictive  prosecution  as  to  one  respondent  but  denied  it  as  to 
the  other  respondents,  and  both  the  Government  and  these  respondents 
appealed.      During  these  appeals,  respondents  remained  free  on  their 
own  recognizance.     In  July  1982,  the  Court  of  Appeals  reversed  the  dis- 
missal as  to  the  one  respondent  and  dismissed  the  appeals  of  the  other 
respondents,  and  in  October  1982  denied  respondents'  petitions  for  a  re- 
hearing.     Respondents  then  filed  a  petition  for  certiorari,  which  this 
Court  denied.     The  Court  of  Appeals'  mandate  issued  in  January  1983. 
In  May  1983,  the  District  Court  again  dismissed  the  indictment,  ruling 
that  respondents'  Sixth  Amendment  right  to  a  speedy  trial  had  been  vio- 
lated.    The  Court  of  Appeals  affirmed. 
Held: 

1.  The  time  during  which  the  indictment  was  dismissed  and  respond- 
ents were  free  of  all  restrictions  on  their  liberty  should  be  excluded  from 
the  length  of  delay  considered  under  the  Speedy  Trial  Clause  of  the  Sixth 
Amendment.  United  States  v.  MacDonald,  456  U.  S.  1.  Pp.  310-312. 
(a)  Where  no  indictment  is  outstanding,  it  is  only  the  actual  re- 
straints imposed  by  arrest  and  holding  to  answer  a  criminal  charge  that 
engages  the  protection  of  the  Speedy  Trial  Clause.  Here,  respondents 


UNITED  STATES  v.  LOUD  HAWK  303 

302  Syllabus 

were  not  incarcerated  and  were  not  subject  to  bail,  and  further  judicial 
proceedings  would  have  been  necessary  to  subject  them  to  any  actual 
restraints.  Pp.  310-311. 

(b)  The  fact  that  the  Government's  desire  to  prosecute  respondents 
was  a  matter  of  public  record  was  insufficient  to  count  the  time  in  ques- 
tion toward  a  speedy  trial  claim.  Nor  does  the  fact  that  respondents 
were  ordered  to  appear  at  the  evidentiary  hearing  held  on  remand  in 
the  District  Court  during  the  first  appeal  constitute  the  sort  of  "actual 
restraint"  required  for  application  of  the  Speedy  Trial  Clause.  And 
respondents'  necessity  to  obtain  counsel  while  their  case  was  technically 
dismissed  was  not  sufficient  to  trigger  that  Clause.  Pp.  311-312. 

2.  The  delay  attributable  to  the  interlocutory  appeals  does  not  weigh 
effectively  towards  respondents'  claim  under  the  Speedy  Trial  Clause. 
Under  the  balancing  test  of  Barker  v.  Wingo,  407  U.  S.  514,  courts  must 
accommodate  the  competing  concerns  of  orderly  appellate  review  and  a 
speedy  trial.     Pp.  312-317. 

(a)  Three  of  the  factors  under  Barker — the  length  of  delay,  the  ex- 
tent to  which  respondents  have  asserted  their  speedy  trial  rights,  and 
the  prejudice  to  respondents— fail  to  support  a  finding  of  a  violation  of 
the  Speedy  Trial  Clause.     Pp.  314-315. 

(b)  The  remaining  Barker  factor,  the  reason  for  the  delay,  also  fails 
to  carry  respondents'  claims.     The  Government's  first  interlocutory  ap- 
peal was  justified  where  the  Government  could  not  have  otherwise  pre- 
sented the  issue  relating  to  exclusion  of  the  evidence  on  the  dynamite 
counts,  and  the  Government's  appeal  on  this  issue  was  strong.      Simi- 
larly, the  Government's  second  interlocutory  appeal  was  justified  be- 
cause the  Government  could  not  have  otherwise  proceeded  against  the 
one  respondent  against  whom  the  indictment  was  dismissed,  and  here 
too  the  Government's  position  was  strong.     Pp.  315—316. 

(c)  The   delay  from   respondents'   interlocutory   appeals   does   not 
count  toward  their  speedy  trial  claims.      A  defendant  bears  the  heavy 
burden  of  showing  an  unreasonable  delay  caused  by  the  prosecution 
in  that  appeal  or  a  wholly  unjustified  delay  by  the  appellate  court. 
Pp.  316-317. 

3.  On  the  facts,  the  delays  in  question  were  not  sufficiently  long  to 
justify  dismissal  of  the  case  against  respondents  because  of  an  alleged 
violation  of  the  Speedy  Trial  Clause.      P.  317. 

741  F.  2d  1184,  reversed. 

POWELL,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER,  C.  J., 
and  WHITE,  REHNQUIST,  and  O'CONNOR,  JJ.,  joined.  MARSHALL,  J  , 
filed  a  dissenting  opinion,  in  which  BRENNAN,  BLACKMUN,  and  STEVENS, 
JJ.,  joined,  post,  p.  317. 


304  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Bruce  N.  Kuhlik  argued  the  cause  for  the  United  States. 
With  him  on  the  briefs  were  Solicitor  General  Fried,  Assist- 
ant Attorney  General  Trott,  Deputy  Solicitor  General  Frey, 
and  Kathleen  A.  Felton. 

Kenneth  Saul  Stern,  by  appointment  of  the  Court,  471 
U.  S.  1123,  argued  the  cause  for  respondents.  With  him 
on  the  brief  were  Tom  Steenson,  Ronald  P.  Schiffman,  and 
Michael  Timothy  Bailey.* 

JUSTICE  POWELL  delivered  the  opinion  of  the  Court. 

In  this  case  we  must  decide,  first,  whether  the  Speedy 
Trial  Clause  of  the  Sixth  Amendment 1  applies  to  time  during 
which  respondents  were  neither  under  indictment  nor  sub- 
jected to  any  official  restraint,  and,  second,  whether  certain 
delays  occasioned  by  interlocutory  appeals  were  properly 
weighed  in  assessing  respondents'  right  to  a  speedy  trial.  A 
divided  panel  of  the  Court  of  Appeals  for  the  Ninth  Circuit 
weighed  most  of  the  90  months  from  the  time  of  respondents' 
arrests  and  initial  indictment  in  November  1975  until  the  Dis- 
trict Court's  dismissal  of  the  indictment  in  May  1983  towards 
respondents'  claims  under  the  Speedy  Trial  Clause.  We 
conclude  that  the  time  that  no  indictment  was  outstanding 
against  respondents  should  not  weigh  towards  respondents' 
speedy  trial  claims.  We  also  find  that  in  this  case  the  delay 
attributable  to  interlocutory  appeals  by  the  Government  and 
respondents  does  not  establish  a  violation  of  the  Speedy  Trial 


* James  W.  Klein  filed  a  brief  for  the  Public  Defender  Service  for  the 
District  of  Columbia  as  amicus  curiae  urging  affirmance. 

1  The  Speedy  Trial  Clause  of  the  Sixth  Amendment  reads:  "In  all  crimi- 
nal prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial 

The  more  stringent  provisions  of  the  Speedy  Trial  Act,  18  U.  S.  C. 
§  3161  et  seq, ,  have  mooted  much  litigation  about  the  requirements  of  the 
Speedy  Trial  Clause  as  applied  to  federal  prosecutions.  The  time  devoted 
to  pretrial  appeals,  however,  is  automatically  excluded  under  the  Act, 
§§  3161(d)(2)  and  (h)(l)(E).  These  respondents  must  therefore  seek  any 
relief  under  the  Speedy  Trial  Clause. 


UNITED  STATES  u  LOUD  HAWK  305 

302  Opinion  of  the  Court 

Clause.  Accordingly,  we  reverse  the  holding  of  the  Court  of 
Appeals  that  respondents  were  denied  their  right  to  a  speedy 
trial. 

I 

In  view  of  the  nature  of  respondents'  claim,  we  state  the 
factual  and  procedural  history  of  this  case  in  some  detail.  On 
November  14,  1975,  pursuant  to  a  tip  from  the  Federal  Bu- 
reau of  Investigation,  Oregon  state  troopers  stopped  two 
vehicles  in  search  of  several  federal  fugitives.2  After  an 
exchange  of  gunfire  and  a  motor  chase,  state  troopers  cap- 
tured all  but  one  of  the  respondents,  Dennis  Banks.3  Both 
vehicles  were  locked  and  impounded  while  federal  and  state 
authorities  obtained  search  warrants. 

Searches  of  the  vehicles  over  the  next  two  days  disclosed 
350  pounds  of  dynamite,4  6  partially  assembled  time  bombs, 


2  Dennis  James  Banks,  one  of  the  respondents  in  this  action,  was  active 
in  the  American  Indian  Movement,  and  was  a  fugitive  when  these  events 
occurred.     The  siege  and  occupation  of  Wounded  Knee  had  taken  place  60 
months  before,   and  the  Federal  Bureau  of  Investigation  was  tracking 
Banks  and  his  party  as  fugitives  from  that  affair.      United  States  v.  Loud 
Hawk,  628  F.  2d  1139,  1141  (CA9  1979).     For  a  description  of  the  battle  of 
Wounded  Knee  and  the  resultant  violence  and  death,  see  United  States  v. 
Banks,  383  F.  Supp.  389  (SD  1974),  appeal  dism'd,  513  F.  2d  1329  (CAS 
1975);  United  States  v.  Banks,  374  F.  Supp.  321  (SD  1974);  United  States 
v.  Banks,  368  F.  Supp.  1245  (SD  1973). 

3  The  Government  represents  that  it  would  introduce  evidence  at  trial 
showing  that  respondent  Dennis  Banks  was  the  driver  of  one  of  the  vehi- 
cles.    Banks  was  not  apprehended  until  January  26,  1976. 

4  Respondents  still  dispute  any  characterization  of  the  destroyed  evi- 
dence as  dynamite.     Brief  in  Opposition  4,  and  n.  4;  Brief  for  Respondents 
4,  n.  5.     The  Court  of  Appeals  wrote: 

"Each  of  the  seven  boxes  was  marked  'High  Explosives  Dangerous'  and  on 
the  side  had  the  following  markings: 

"  '50  Ibs 

Gelex  2     1x8 

70%  Strength 

D73MAO  7B' 

[Footnote  4  ^s  continued  on  p.  306] 


306  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

2,600  rounds  of  ammunition,  150  blasting  caps,  9  empty  hand 
grenades,  and  miscellaneous  firearms.5  Oregon  law  enforce- 
ment officers,  apparently  unaware  of  the  evidentiary  conse- 
quences, adhered  to  their  usual  policy  and  destroyed  the 
dynamite.  A  federal  agent  present  at  the  destruction  photo- 
graphed the  explosions.  United  States  v.  Loud  Hawk,  628 
F.  2d  1139,  1142  (CA9  1979).  State  officials  also  preserved 
wrappers  from  the  dynamite  casings. 

A  federal  grand  jury  indicted  respondents  on  November 
25,  1975,  on  charges  of  possessing  firearms  and  explosives. 
Trial  in  the  United  States  District  Court  for  the  District  of 
Oregon  was  set  for  the  week  of  February  9,  1976.  On  De- 
cember 22,  1975,  a  grand  jury  returned  a  five-count  super- 
seding indictment.  This  indictment  charged  all  respondents 
with  three  counts  relating  to  possession  and  transportation  in 
commerce  of  an  unregistered  destructive  device  (the  dyna- 
mite counts)  and  two  counts  relating  to  unlawful  possession 
of  firearms  (the  firearms  counts). 

Two  days  later,  respondents  filed  a  motion  to  suppress  all 
evidence  concerning  the  dynamite,  arguing  that  federal  and 
state  officials  had  intentionally  and  negligently  destroyed  the 
dynamite  before  the  defense  had  the  opportunity  to  examine 
it.  After  initially  denying  respondents'  motion,6  and  after 


"together  with  the  logo  of  the  DuPont  company  prominently  displayed. 
Inside  were  red  cylindrical  sticks  with  heavy  wrapping  paper  covering  the 
contents  and  marked: 

"  'Explosives  Dangerous 

Gelex  2 
70%  Strength 

E  I  Dupont  De  Nemours  &  Co.  (Inc.).'" 
United  States  v.  Loud  Hawk,  supra,  at  1144-1145. 

We  follow  the  practice  of  the  opinions  discussing  the  issue  and  refer  to  the 
destroyed  evidence  as  dynamite.     741  F.  2d  1184,  1187  (CA9  1984);  United 
States  v.  Loud  Hawk,  supra,  at  1143.     Cf.  United  States  v.  Banks,  682  F. 
2d  841,  843  (CA9  1982)  ("explosive  material"). 
e  App.  40a-42a,  and  n.  4,  90a. 
6  The  District  Court  denied  the  motion  on  January  21,  1976. 


UNITED  STATES  v.  LOUD  HAWK  307 

302  Opinion  of  the  Court 

two  continuances  at  respondents'  behest,7  the  District  Court 
granted  respondents'  motion  to  suppress  on  March  31,  1976. 
App.  to  Pet.  for  Cert.  157a.  Three  weeks  later,  the  Govern- 
ment appealed  the  suppression  order,8  and  moved  that  trial 
on  all  counts  be  continued  pending  the  outcome  of  the  appeal. 
The  District  Court  denied  the  Government's  request  for  a 
continuance,  and  when  the  case  was  called  for  trial,  the  Gov- 
ernment answered  "not  ready."  Pursuant  to  Federal  Rule 
of  Criminal  Procedure  48(b),  the  District  Judge  dismissed  the 
indictment  with  prejudice.  Six  months  had  passed  since  the 
original  indictment. 

The  Government  immediately  appealed  the  dismissal,  and 
the  two  appeals  were  consolidated.     The  Court  of  Appeals 


7  On  January  21,  1976,  the  District  Court  postponed  trial  until  March  8, 
1976,  on  respondents'  motion.     On  respondents'  motion  and  over  the  objec- 
tion of  the  Government,  on  February  18,  1976,  the  District  Court  again 
continued  trial  until  May  12,  1976.     Record,  Doc.  Nos.  62,  64. 

8  The  Government  is  permitted  to  pursue  some  interlocutory  appeals 
under  18  U.  S.  C.  §  3731.     That  section  as  then  in  effect  read: 

"In  a  criminal  case  an  appeal  by  the  United  States  shall  lie  to  a  court  of 
appeals  from  a  decision,  judgment,  or  order  of  a  district  court  dismissing  an 
indictment  or  information  as  to  any  one  or  more  counts,  except  that  no 
appeal  shall  lie  where  the  double  jeopardy  clause  of  the  United  States 
Constitution  prohibits  further  prosecution. 

"An  appeal  by  the  United  States  shall  lie  to  a  court  of  appeals  from  a 
decision  or  order  of  a  district  courts  [sic]  suppressing  or  excluding  evidence 
or  requiring  the  return  of  seized  property  in  a  criminal  proceeding,  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  certi- 
fies 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. 

"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. 

"Pending  the  prosecution  and  determination  of  the  appeal  in  the  forego- 
ing instances,  the  defendant  shall  be  released  in  accordance  with  chapter 
207  of  this  title. 

"The  provisions  of  this  section  shall  be  liberally  construed  to  effectuate 
its  purposes." 


308  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.S. 

heard  argument  on  October  15,  1976,  and  a  divided  panel 
affirmed  in  an  unreported  opinion  on  July  26,  1977.  App.  to 
Pet.  for  Cert.  88a-118a.  On  the  Government's  motion,  the 
court  voted  on  October  17,  1977,  to  hear  the  case  en  bane. 
On  March  6,  1978,  the  Court  of  Appeals  en  bane  remanded  for 
findings  of  fact  on  whether  federal  officials  participated  in  the 
destruction  of  the  dynamite  and  whether  respondents  were 
prejudiced  by  its  destruction.  The  court  retained  jurisdic- 
tion over  the  appeal  pending  the  District  Court's  findings. 
The  District  Court  issued  its  findings  on  August  23,  1978,  and 
the  case  returned  to  the  Court  of  Appeals. 

On  August  7,  1979,  the  Court  of  Appeals  reversed  the  sup- 
pression order  and  directed  that  the  dynamite  counts  be  rein- 
stated.     United  States  v.  Loud  Hawk,  628  F.  2d,  at  1150. 
The  court  also  held  that  although  the  Government  could  have 
gone  to  trial  on  the  firearms  counts  pending  the  appeal,  the 
District  Court  erred  in  dismissing  those  counts  with  preju- 
dice.    Id.,  at  1151.     The  Court  of  Appeals  denied  respond- 
ents' petition  for  rehearing  on  October  1,  1979.      Respond- 
ents petitioned  for  certiorari;   we   denied  the   petition  on 
March  3,  1980.     445  U.  S.  917.     The  mandate  of  the  Court 
of  Appeals  issued  on  March  12,  1980,  46  months  after  the 
Government  filed  its  notice  of  appeal  from  the  dismissal  of 
the  indictment.     Respondents  were  unconditionally  released 
during  that  time. 

Following  remand,  the  District  Court  ordered  the  Govern- 
ment to  reindict  on  the  firearms  charges.9  Respondents 
filed  a  number  of  motions  during  June  and  July  of  1980  in  re- 


9  App.  57.  The  Government  obtained  a  new  indictment  from  the  grand 
jury  that  recharged  with  the  original  firearms  count  (although  it  substi- 
tuted "receiving"  for  "transporting")  and  two  of  the  original  three  dyna- 
mite device  counts.  The  new  indictment  also  charged  the  defendants  with 
two  new  destructive  device  counts  relating  to  a  slightly  different  type  of 
destructive  device.  It  also  charged  respondent  KaMook  Banks  with  a  new 
count  of  receiving  firearms  while  under  indictment  for  a  felony. 


UNITED  STATES  v.  LOUD  HAWK  309 

302  Opinion  of  the  Court 

sponse  to  the  superseding  indictment,10  including  a  motion  to 
dismiss  for  vindictive  prosecution.  On  August  8,  1980,  the 
District  Court  granted  the  vindictive  prosecution  motion  as 
to  KaMook  Banks  and  denied  it  as  to  respondents  Dennis 
Banks,  Render,  and  Loud  Hawk.  Both  sides  appealed.  Re- 
spondents remained  free  on  their  own  recognizance  during 
this  appeal. 

The  appeals  were  consolidated,  and  the  Court  of  Appeals 
ordered  expedited  consideration.  The  court  heard  argument 
on  January  7,  1981,  but  did  not  issue  its  decision  until  July  29, 

1982.  The  court  sustained  the  Government's  position  on  all 
issues.      United  States  v.  Banks,  682  F.  2d  841.      Respond- 
ents' petitions  for  rehearing  were  denied  on  October  5,  1982. 
Respondents  again  petitioned  for  certiorari,  and  we  denied 
the  petition  on  January  10,   1983.      459  U.  S.    1117.      The 
Court  of  Appeals'  mandate  issued  on  January  31,  1983,  al- 
most 29  months  after  the  appeals  were  filed. 

The  District  Court  scheduled  trial  to  begin  on  April  11, 

1983.  The  Government  sought  and  received  a  continuance 
until  May  3,  1983,  because  of  alleged  difficulties  in  locating 
witnesses  more  than  seven  years  after  the  arrests.     Subse- 
quently, the  court  on  its  own  motion  continued  the  trial  date 
until  May  23,  1983,  and  then  again  rescheduled  the  trial  for 
June  13.     The  record  in  this  Court  does  not  reveal  the  rea- 


10  A  listing  of  the  relevant  docket  entries,  id.,  at  38-145,  shows  that  the 
motions  filed  during  this  4- week  period  included:  motion  for  a  transcript  of 
a  recently  held  hearing  (June  24,  1980),  id.,  at  61;  motion  to  dismiss  counts 
three  and  four  for  insufficient  allegations  (July  7,  1980),  id.,  at  63;  motion 
to  suppress  evidence  of  pre trial  photographic  identification  and  "Tainted 
Potential  Courtroom  Identification,"  ibid.;  motion  for  change  injury  selec- 
tion procedure,  ibid.;  motion  to  dismiss  because  of  the  grand  jury  compo- 
sition, ibid.;  motion  to  dismiss  for  vindictive  prosecution,  ibid.;  motion 
to  dismiss  for  premdictment  delay,  ibid.,  motion  for  disclosure  and  pro- 
duction (July  21,  1980),  id.,  at  64;  motion  for  appointment  of  investiga- 
tor at  Government  expense,  ibid.;  and  third  motion  to  dismiss  for  gross 
governmental  misconduct,  ibid.  All  motions  except  for  KaMook  Banks' 
vindictive  prosecution  motion  were  denied  (Aug.  5,  1980).  Id.,  at  65-66. 


310  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

sons  for  these  latter  two  continuances.     Defendants  objected 
to  each  continuance. 

On  May  20,  1983,  the  District  Court  again  dismissed  the 
indictment,  this  time  on  the  ground  that  respondents'  Sixth 
Amendment  right  to  a  speedy  trial  had  been  violated.  564 
F.  Supp.  691.  The  Government  appealed,  and  unsuccess- 
fully urged  the  District  Court  to  request  that  the  Court  of 
Appeals  expedite  the  appeal.  On  its  own  motion  the  court 
treated  the  appeal  as  expedited,  and  heard  argument  on  Jan- 
uary 4,  1984.  A  divided  panel  affirmed  on  August  30,  1984. 
741  F.  2d  1184. u  We  granted  certiorari,  471  U.  S.  1014 
(1985),  and  now  reverse. 

II 

The  Government  argues  that  under  United  States  v.  Mac- 
Donald,  456  U.  S.  1  (1982),  the  time  during  which  defendants 
are  neither  under  indictment  nor  subject  to  any  restraint  on 
their  liberty  should  be  excluded— weighed  not  at  all — when 
considering  a  speedy  trial  claim. 12  Respondents  contend  that 
even  during  the  time  the  charges  against  them  were  dis- 
missed, the  Government  was  actively  pursuing  its  case  and 
they  continued  to  be  subjected  to  the  possibility  that  bail 
might  be  imposed.  This  possibility,  according  to  respond- 
ents, is  sufficient  to  warrant  counting  the  time  towards  a 
speedy  trial  claim. 

The  Court  has  found  that  when  no  indictment  is  outstand- 
ing, only  the  "actual  restraints  imposed  by  arrest  and  hold- 
ing to  answer  a  criminal  charge  .  .  .  engage  the  particular 
protections  of  the  speedy  trial  provision  of  the  Sixth  Amend- 
ment." United  States  v.  Marion,  404  U.  S.  307,  320  (1971) 


11  The  Ninth  Circuit's  holding  conflicts  with  three  other  Circuits.      See 
United  States  v.  Herman,  576  F.  2d  1139,  1146  (CAS  1978);  United  States 
v.  Jackson,  508  F.  2d  1001,  1004  (CA7  1975);  United  States  v.  Bishton,  150 
U.  S.  App.  D.  C.  51,  54,  463  F.  2d  887,  890  (1972). 

12  In  MacDonald,  we  held  that  where  the  Government  has  dismissed  an 
indictment  and  the  defendant  is  not  subject  to  actual  restraints  on  his  lib- 
erty, the  Speedy  Trial  Clause  does  not  apply. 


UNITED  STATES  v.  LOUD  HAWK  311 

302  Opinion  of  the  Court 

(emphasis  added);  see  MacDonald,  supra,  at  9.  As  we 
stated  in  MacDonald:  "The  speedy  trial  guarantee  is  de- 
signed to  minimize  the  possibility  of  lengthy  incarceration 
prior  to  trial,  to  reduce  the  lesser,  but  nevertheless  substan- 
tial, impairment  of  liberty  imposed  on  an  accused  while  re- 
leased on  bail,  and  to  shorten  the  disruption  of  life  caused  by 
arrest  and  the  presence  of  unresolved  criminal  charges." 
456  U.  S. ,  at  8. 

During  much  of  the  litigation,  respondents  were  neither 
under  indictment  nor  subject  to  bail.13  Further  judicial  pro- 
ceedings would  have  been  necessary  to  subject  respondents 
to  any  actual  restraints.  Cf.  Klopfer  v.  North  Carolina, 
386  U.  S.  213  (1967).  As  we  stated  in  MacDonald:  "[W]ith 
no  charges  outstanding,  personal  liberty  is  certainly  not  im- 
paired to  the  same  degree  as  it  is  after  arrest  while  charges 
are  pending.  After  the  charges  against  him  have  been  dis- 
missed, *a  citizen  suffers  no  restraints  on  his  liberty  and  is 
[no  longer]  the  subject  of  public  accusation:  his  situation  does 
not  compare  with  that  of  a  defendant  who  has  been  arrested 
and  held  to  answer.'"  456  U.  S.,  at  9. 

Respondents  argue  that  the  speedy  trial  guarantee  should 
apply  to  this  period  because  the  Government's  desire  to  pros- 
ecute them  was  a  matter  of  public  record.  Public  suspicion, 
however,  is  not  sufficient  to  justify  the  delay  in  favor  of  a  de- 
fendant's speedy  trial  claim.  We  find  that  after  the  District 
Court  dismissed  the  indictment  against  respondents  and 
after  respondents  were  freed  without  restraint,  they  were 
"in  the  same  position  as  any  other  subject  of  a  criminal  inves- 
tigation." MacDonald,  supra,  at  8-9.  See  Marion,  supra, 
at  309.  The  Speedy  Trial  Clause  does  not  purport  to  protect 
a  defendant  from  all  effects  flowing  from  a  delay  before  trial. 


13  In  those  instances  where  the  defendant  is  subject  to  incarceration  or 
bail,  the  courts  would  have  to  engage  in  a  balancing  of  the  restrictions 
imposed  and  their  effect  on  the  defendant,  the  necessity  for  delay,  and  the 
length  of  delay,  using  the  approach  we  have  outlined  below.  Infra,  at 
315-316. 


312  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

The  Clause  does  not,  for  example,  limit  the  length  of  a  pre- 
indictment  criminal  investigation  even  though  "the  [sus- 
pect's] knowledge  of  an  ongoing  criminal  investigation  will 
cause  stress,  discomfort,  and  perhaps  a  certain  disruption  in 
normal  life."  456  U.  S.,  at  9. 

Nor  does  the  fact  that  respondents  were  ordered  to  appear 
at  the  evidentiary  hearing  held  on  remand  in  the  District 
Court  during  the  first  appeal — an  appearance  they  waived — 
constitute  the  sort  of  "actual  restraint"  required  under  our 
precedents  as  a  basis  for  application  of  the  Speedy  Trial 
Clause.  Finally,  we  are  not  persuaded  that  respondents' 
need  for  counsel  while  their  case  was  technically  dismissed 
supports  their  speedy  trial  claim.  Although  the  retention  of 
counsel  is  frequently  an  inconvenience  and  an  expense,  the 
Speedy  Trial  Clause's  core  concern  is  impairment  of  liberty; 
it  does  not  shield  a  suspect  or  a  defendant  from  every  ex- 
pense or  inconvenience  associated  with  criminal  defense. 

We  therefore  find  that  under  the  rule  of  MacDonald,  when 
defendants  are  not  incarcerated  or  subjected  to  other  sub- 
stantial restrictions  on  their  liberty,  a  court  should  not  weigh 
that  time  towards  a  claim  under  the  Speedy  Trial  Clause. 

Ill 

The  remaining  issue  is  how  to  weigh  the  delay  occasioned 
by  an  interlocutory  appeal  when  the  defendant  is  subject  to 
indictment  or  restraint.  As  we  have  recognized,  the  Sixth 
Amendment's  guarantee  of  a  speedy  trial  "is  an  important 
safeguard  to  prevent  undue  and  oppressive  incarceration 
prior  to  trial,  to  minimize  anxiety  and  concern  accompanying 
public  accusation  and  to  limit  the  possibilities  that  long  delay 
will  impair  the  ability  of  an  accused  to  defend  himself." 
United  States  v.  Ewell,  383  U.  S.  116,  120  (1966).  These 
safeguards  may  be  as  important  to  the  accused  when  the 
delay  is  occasioned  by  an  unduly  long  appellate  process  as 
when  the  delay  is  caused  by  a  lapse  between  the  initial  arrest 
and  the  drawing  of  a  proper  indictment,  Swell,  supra,  at 


UNITED  STATES  v.  LOUD  HAWK  313 

302  Opinion  of  the  Court 

118-119,  or  by  continuances  in  the  date  of  trial,  Barker  v. 
Wingo,  407  U.  S.  514,  517-518  (1972). 

At  the  same  time,  there  are  important  public  interests  in 
the  process  of  appellate  review.  The  assurance  that  motions 
to  suppress  evidence  or  to  dismiss  an  indictment  are  cor- 
rectly decided  through  orderly  appellate  review  safeguards 
both  the  rights  of  defendants  and  the  "rights  of  public  jus- 
tice." Beavers  v.  Haubert,  198  U.  S.  77,  87  (1905).  The 
legislative  history  of  18  U.  S.  C.  §3731  "makes  it  clear  that 
Congress  intended  to  remove  all  statutory  barriers  to  Gov- 
ernment appeals  and  to  allow  appeals  whenever  the  Constitu- 
tion would  permit."  United  States  v.  Wilson,  420  U.  S.  332, 
337  (1975). 

It  is,  of  course,  true  that  the  interests  served  by  appellate 
review  may  sometimes  stand  in  opposition  to  the  right  to  a 
speedy  trial.  But,  as  the  Court  observed  in  United  States  v. 
Ewell,  supra,  at  121: 

"It  has  long  been  the  rule  that  when  a  defendant  ob- 
tains a  reversal  of  a  prior,  unsatisfied  conviction,  he  may 
be  retried  in  the  normal  course  of  events.  .  .  .  [This 
rule]  has  been  thought  wise  because  it  protects  the  soci- 
etal interest  in  trying  people  accused  of  crime,  rather 
than  granting  them  immunization  because  of  legal  error 
at  a  previous  trial,  and  because  it  enhances  the  proba- 
bility that  appellate  courts  will  be  vigilant  to  strike 
down  previous  convictions  that  are  tainted  with  revers- 
ible error.  .  .  .  These  policies,  so  carefully  preserved  in 
this  Court's  interpretation  given  the  Double  Jeopardy 
Clause,  would  be  seriously  undercut  by  [an]  interpreta- 
tion given  the  Speedy  Trial  Clause  [that  raised  a  Sixth 
Amendment  obstacle  to  retrial  following  successful  at- 
tack on  conviction]." 

In  Barker,  we  adopted  a  four-part  balancing  test  to  deter- 
mine whether  a  series  of  continuances  infringed  upon  the  de- 
fendant's right  to  a  speedy  trial.  407  U.  S.,  at  530.  That 
test  assessed  the  "[l]ength  of  delay,  the  reason  for  the 


314  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

delay,  the  defendant's  assertion  of  his  right,  and  prejudice  to 
the  defendant."  Ibid  (footnote  omitted).  The  Barker  test 
furnishes  the  flexibility  to  take  account  of  the  competing 
concerns  of  orderly  appellate  review  on  the  one  hand,  and  a 
speedy  trial  on  the  other.  We  therefore  adopt  this  func- 
tional test  to  determine  the  extent  to  which  appellate  time 
consumed  in  the  review  of  pretrial  motions  should  weigh 
towards  a  defendant's  speedy  trial  claim.  Under  this  test, 
we  conclude  that  in  this  case  the  delays  do  not  justify  the 
"unsatisfactorily  severe  remedy  of  dismissal."  Id.,  at  522. 


Barker's  first,  third,  and  fourth  factors  present  no  great 
difficulty  in  application.  The  first  factor,  the  length  of  delay, 
defines  a  threshold  in  the  inquiry:  there  must  be  a  delay  long 
enough  to  be  "presumptively  prejudicial."  Id.,  at  530. 
Here,  a  90-month  delay  in  the  trial  of  these  serious  charges  is 
presumptively  prejudicial  and  serves  to  trigger  application  of 
Barker's  other  factors.  Ibid. 

The  third  factor— the  extent  to  which  respondents  have  as- 
serted their  speedy  trial  rights  —does  not  support  their  posi- 
tion. Although  the  Court  of  Appeals  found  that  respondents 
have  repeatedly  moved  for  dismissal  on  speedy  trial  grounds, 
741  F.  2d,  at  1192,  that  finding  alone  does  not  establish  that 
respondents  have  appropriately  asserted  their  rights.  We 
held  in  Barker  that  such  assertions  from  defendants  are  "en- 
titled to  strong  evidentiary  weight"  in  determining  whether 
their  rights  to  a  speedy  trial  have  been  denied.  407  U.  S. ,  at 
531-532.  These  assertions,  however,  must  be  viewed  in  the 
light  of  respondents'  other  conduct. 

Here,  respondents'  speedy  trial  claims  are  reminiscent  of 
Penelope's  tapestry.14  At  the  same  time  respondents  were 
making  a  record  of  claims  in  the  District  Court  for  speedy 
trial,  they  consumed  six  months  by  filing  indisputably  frivo- 
lous petitions  for  rehearing  and  for  certiorari  after  this 

"Homer,  The  Odyssey,  Book  II,  lines  91-105  (R.  Lattimore  trans.  1965). 


UNITED  STATES  v.  LOUD  HAWK  315 

302  Opinion  of  the  Court 

Court's  decision  in  United  States  v.  Hollywood  Motor  Car 
Co.,  458  U.  S.  263  (1982)  (federal  courts  without  jurisdiction 
to  hear  defendant's  interlocutory  appeal  from  denial  of  mo- 
tion to  dismiss  indictment).  They  also  filled  the  District 
Court's  docket  with  repetitive  and  unsuccessful  motions. 
See,  e.  g.,  n.  10,  supra. 

The  Court  of  Appeals  gave  "little  weight"  to  the  fourth  fac- 
tor, prejudice  to  respondents.  At  most,  the  court  recog- 
nized the  possibility  of  "impairment  of  a  fair  trial  that  may 
well  result  from  the  absence  or  loss  of  memory  of  "witnesses  in 
this  case."  741  F.  2d,  at  1193.  See  Barker,  407  U.  S.,  at 
532.  That  possibility  of  prejudice  is  not  sufficient  to  support 
respondents'  position  that  their  speedy  trial  rights  were  vio- 
lated. In  this  case,  moreover,  delay  is  a  two-edged  sword. 
It  is  the  Government  that  bears  the  burden  of  proving  its 
case  beyond  a  reasonable  doubt.  The  passage  of  time  may 
make  it  difficult  or  impossible  for  the  Government  to  carry 
this  burden. 

B 

The  flag  all  litigants  seek  to  capture  is  the  second  factor, 
the  reason  for  delay.  In  Barker,  we  held  that  "different 
weights  should  be  assigned  to  different  reasons."  Id.,  at 
531.  While  a  "deliberate  attempt  to  delay  the  trial  in  order 
to  hamper  the  defense,"  would  be  weighed  heavily  against 
the  Government,  a  delay  from  "overcrowded  courts" — as  was 
the  situation  here — would  be  weighed  "less  heavily."  Ibid. 
Given  the  important  public  interests  in  appellate  review, 
supra,  at  313,  it  hardly  need  be  said  that  an  interlocutory  ap- 
peal by  the  Government  ordinarily  is  a  valid  reason  that  justi- 
fies delay.  In  assessing  the  purpose  and  reasonableness  of 
such  an  appeal,  courts  may  consider  several  factors.  These 
include  the  strength  of  the  Government's  position  on  the 
appealed  issue,  the  importance  of  the  issue  in  the  posture  of 
the  case,  and — in  some  cases — the  seriousness  of  the  crime. 
United  States  v.  Herman,  576  F.  2d  1139,  1146  (CAS  1978) 
(Wisdom,  J.).  For  example,  a  delay  resulting  from  an  ap- 


316  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

peal  would  weigh  heavily  against  the  Government  if  the  issue 
were  clearly  tangential  or  frivolous.  Ibid.  Moreover,  the 
charged  offense  usually  must  be  sufficiently  serious  to  justify 
restraints  that  may  be  imposed  on  the  defendant  pending  the 
outcome  of  the  appeal.  Ibid. 

Under  Barker,  delays  in  bringing  the  case  to  trial  caused 
by  the  Government's  interlocutory  appeal  may  be  weighed  in 
determining  whether  a  defendant  has  suffered  a  violation  of 
his  rights  to  a  speedy  trial.  It  is  clear  in  this  case,  however, 
that  respondents  have  failed  to  show  a  reason  for  according 
these  delays  any  effective  weight  towards  their  speedy  trial 
claims.  There  is  no  showing  of  bad  faith  or  dilatory  purpose 
on  the  Government's  part.  The  Government's  position  in 
each  of  the  appeals  was  strong,  and  the  reversals  by  the 
Court  of  Appeals  are  prima  facie  evidence  of  the  reasonable- 
ness of  the  Government's  action.  Moreover,  despite  the 
seriousness  of  the  charged  offenses,  the  District  Court  chose 
not  to  subject  respondents  to  any  actual  restraints  pending 
the  outcome  of  the  appeals. 

The  only  remaining  question  is  the  weight  to  be  attributed 
to  delays  caused  by  respondents'  interlocutory  appeals.  In 
that  limited  class  of  cases  where  a  pretrial  appeal  by  the  de- 
fendant is  appropriate,  see,  e.  g.,  Hollywood  Motor  Car  Co., 
supra.  Sit  265-266,  delays  from  such  an  appeal  ordinarily  will 
not  weigh  in  favor  of  a  defendant's  speedy  trial  claims.  A 
defendant  with  a  meritorious  appeal  would  bear  the  heavy 
burden  of  showing  an  unreasonable  delay  caused  by  the  pros- 
ecution in  that  appeal,  or  a  wholly  unjustifiable  delay  by  the 
appellate  court.  A  defendant  who  resorts  to  an  interlocu- 
tory appeal  normally  should  not  be  able  upon  return  to  the 
district  court  to  reap  the  reward  of  dismissal  for  failure  to 
receive  a  speedy  trial.  As  one  Court  of  Appeals  has  noted  in 
the  context  of  a  District  Court's  consideration  of  pretrial 
motions: 

"Having  sought  the  aid  of  the  judicial  process  and  realiz- 
ing the  deliberateness  that  a  court  employs  in  reaching  a 


UNITED  STATES  u  LOUD  HAWK  317 

302  MARSHALL,  J.,  dissenting 

decision,  the  defendants  are  not  now  able  to  criticize  the 
very  process  which  they  so  frequently  called  upon." 
United  States  v.  Auerbach,  420  F.  2d  921,  924  (CA5 
1969),  rehearing  denied,  423  F.  2d  676,  cert,  denied,  399 
U.  S.  905  (1970). 

In  the  present  case,  respondents'  appeal  was  allowable 
under  the  law  of  the  Ninth  Circuit  before  our  decision  in  Hol- 
lywood Motor  Car,  supra.  But  we  find  that  their  position 
was  so  lacking  in  merit  that  the  time  consumed  by  this  appeal 
should  not  weigh  in  support  of  respondents'  speedy  trial 
claim.  Nor  do  we  weigh  the  additional  delay  of  six  months 
resulting  from  respondents'  frivolous  action  in  seeking  re- 
hearing and  certiorari  toward  respondents'  speedy  trial 
claim.  See  ibid.,  decided  prior  to  these  latter  actions. 

IV 

We  cannot  hold,  on  the  facts  before  us,  that  the  delays  as- 
serted by  respondents  weigh  sufficiently  in  support  of  their 
speedy  trial  claim  to  violate  the  Speedy  Trial  Clause.  They 
do  not  justify  the  severe  remedy  of  dismissing  the  indict- 
ment. Accordingly,  the  judgment  of  the  Court  of  Appeals 
for  the  Ninth  Circuit  is  reversed. 

It  is  so  ordered. 

JUSTICE  MARSHALL,  with  whom  JUSTICE  BRENNAN,  JUS- 
TICE BLACKMUN,  and  JUSTICE  STEVENS  join,  dissenting. 

The  Court  holds  today  that  the  Speedy  Trial  Clause  of  the 
Sixth  Amendment  does  not  apply  to  a  Government  appeal 
from  a  district  court's  dismissal  of  an  indictment,  unless  the 
defendant  is  incarcerated  or  otherwise  under  restraint  during 
that  appeal.  The  majority  supports  this  result  by  equating 
the  present  case  to  United  States  v.  MacDonald,  456  U.  S.  1 
(1982).  That  analysis,  however,  both  ignores  the  consider- 
able differences  between  this  case  and  MacDonald  and  gives 
short  shrift  to  the  interests  protected  by  the  Speedy  Trial 
Clause.  I  further  disagree  with  the  majority's  application 


318  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

of  Barker  v.  Wingo,  407  U.  S.  514  (1972),  to  the  remaining 
appellate  delays  in  this  case. 


The  majority  concludes  that  when  an  appeal  arises  out  of 
the  district  court's  dismissal  of  an  indictment,  the  lack  of  an 
outstanding  indictment  absolves  the  Government  of  its 
responsibility  to  provide  a  speedy  trial.  However,  we  have 
never  conditioned  Sixth  Amendment  rights  solely  on  the 
presence  of  an  outstanding  indictment.  Those  rights  attach 
to  anyone  who  is  "accused,"1  and  we  have  until  now  recog- 
nized that  one  may  stand  publicly  accused  without  being 
under  indictment.  The  majority  offers  two  reasons  for  con- 
cluding that  respondents  did  not  enjoy  the  right  to  a  speedy 
trial  during  the  Government's  appeals.  First,  respondents 
were  suffering  only  "[p]ublic  suspicion,"  ante,  at  311,  and  not 
a  formal  accusation.  Second,  they  were  not  subject  to  "ac- 
tual restraints"  on  their  liberty.  Both  of  these  rationales  are 
seriously  flawed. 

A 

In  United  States  v.  Marion,  404  U.  S.  307  (1971),  we  held 
that  the  Speedy  Trial  Clause  does  not  apply  until  the  Govern- 
ment, either  through  arrest  or  indictment,  asserts  probable 
cause  to  believe  that  a  suspect  has  committed  a  crime.  Be- 
fore that  time  the  individual,  while  possibly  aware  of  the 
Government's  suspicion,  is  not  "the  subject  of  public  accusa- 
tion," id.,  at  321,  and  his  only  protection  against  delay  comes 
from  the  Due  Process  Clause  and  the  applicable  statute  of 
limitations.  The  Court  applied  the  same  rationale  in  Mac- 
Donald,  supra.  In  that  case,  military  charges  of  murder 
against  MacDonald,  an  Army  officer,  were  dropped  after  an 
investigation.  MacDonald  was  then  given  an  honorable  dis- 
charge, only  to  be  indicted  by  a  civilian  grand  jury  nearly 

irThe  Sixth  Amendment  provides  in  pertinent  part:  "In  all  criminal 
prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial  .  .  .  ." 


UNITED  STATES  u  LOUD  HAWK  319 

302  MARSHALL,  J.,  dissenting 

four  years  later  for  the  same  murders.  The  Court  held  that 
this  delay  did  not  implicate  the  speedy  trial  right  because 
"the  Speedy  Trial  Clause  has  no  application  after  the  Govern- 
ment, acting  in  good  faith,  formally  drops  charges."  Id.,  at 
7.  The  Court  reasoned  that  after  the  termination  of  the  first 
formal  prosecution,  MacDonald  was  "in  the  same  position  as 
any  other  subject  of  a  criminal  investigation,"  id.,  at  8-9,  and 
thus  was  no  more  an  "accused"  than  was  the  defendant  in 
Marion  before  his  arrest. 

The  same  cannot  be  said  of  respondents  in  the  present 
case.2  Unlike  one  who  has  not  been  arrested,  or  one  who 
has  had  the  charges  against  him  dropped,  respondents  did 
not  enjoy  the  protection  of  the  statute  of  limitations  while  the 
Government  prosecuted  its  appeals.  That  protection  was  an 
important  aspect  of  our  holding  in  Marion  that  prearrest 
delay  is  not  cognizable  under  the  Speedy  Trial  Clause.  See 
404  U.  S.,  at  322-323.  More  importantly,  in  contrast  to 
MacDonald,  the  Government  has  not  "dropped"  anything  in 


2  It  is  also  instructive  to  compare  the  present  case  and  MacDonald 
with  respect  to  another  Sixth  Amendment  right — the  right  to  counsel. 
Surely  a  Government  appeal  under  18  U.  S.  C.  §  3731  is  a  "critical  stage" 
of  the  prosecution,  implicating  the  Sixth  Amendment  right  to  counsel. 
Cf.  Evitts  v.  Lucey,  469  U.  S.  387  (1985)  (defendant  in  state  prosecution 
has  due  process  right  to  effective  assistance  of  counsel  on  appeal,  whether 
counsel  is  retained  or  appointed).  As  during  other  critical  stages,  the 
defendant  needs  an  attorney  during  a  government  appeal  uas  a  shield  to 
protect  him  against  being  'haled  into  court*  by  the  State  and  stripped  of 
his  presumption  of  innocence. "  Ross  v.  Mqffitt,  417  U.  S.  600,  610-611 
(1974),  Again,  the  contrast  to  MacDonald  is  striking.  The  defendant  in 
that  case  would  have  had  no  Sixth  Amendment  right  to  counsel  during  the 
time  between  the  dropping  of  the  Army  charges  and  the  filing  of  the  grand 
jury  charges;  that  period  was  not  a  "critical  stage"  of  a  prosecution. 

In  United  States  v.  Gouveia,  467  U.  S.  180  (1984),  we  held  that  the  Sixth 
Amendment  right  to  counsel  is  satisfied  in  a  narrower  class  of  cases  than 
the  speedy  trial  right.  It  therefore  defies  logic  to  conclude  that  respond- 
ents could  be  protected  by  the  former,  but  not  the  latter,  during  the  Gov- 
ernment's appeal. 


320  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

this  case.8  There  has  been  at  all  relevant  times  a  case  on  a 
court  docket  captioned  United  States  v.  Loud  Hawk— I  can 
think  of  no  more  formal  indication  that  respondents  stand 
accused  by  the  Government. 

The  majority  argues  that  while  "the  Government's  desire 
to  prosecute  [respondents]  was  a  matter  of  public  record," 
that  desire  constituted  only  "[p]ublic  suspicion"  that  is  insuf- 
ficient to  call  Sixth  Amendment  rights  into  play,  citing  Mar- 
ion and  MacDonald.     Ante,  at  311.      The  reason  that  the 
Government's  desire  to  prosecute  in  both  of  those  cases  did 
not  constitute  an  "accusation,"  however,  is  that  the  Govern- 
ment had  not  yet  formalized  its  commitment.      Indeed,  in 
MacDonald,  the  Government  dismissed  the  murder  charges 
because  it  "concluded  that  they  were  untrue,"  456  U.  S.,  at 
10,  n.  12,  thus  acknowledging  that  the  first  formal  accusation 
had  been  a  mistake  and  extinguishing  the  prior  probable- 
cause  determination.     In  the  present  case,  the  Government 
has  made  no  such  confession  of  error  and  continues  to  align 
its  full  resources  against  respondents  in  judicial  proceedings. 
The  most  telling  difference  between  this  case  and  MacDon- 
ald, however,  is  the  fact  that  respondents'  liberty  could  have 
been  taken  from  them  at  any  time  during  the  Government's 

3  That  neither  Congress  nor  this  Court  has  had  any  difficulty  recogniz- 
ing the  fundamental  difference  between  the  Government's  dismissal  of  an 
indictment  and  the  court's  dismissal,  subject  to  appellate  review,  is  clear 
from  Federal  Rule  of  Criminal  Procedure  48.  Subdivision  (a)  of  that  Rule 
permits  the  Government,  with  leave  of  court,  to  dismiss  an  indictment,  and 
provides  that  when  the  indictment  is  dismissed,  "the  prosecution  shall 
thereupon  terminate."  Subdivision  (b)  permits  the  district  court  to  dis- 
miss an  indictment,  but  contains  no  language  suggesting  that  such  action 
brings  the  prosecution  to  an  end— nor  could  it,  because  the  court's  dis- 
missal is  subject  to  the  Government's  statutory  right  to  appeal. 

Asking  whether  the  indictment  "exists"  during  the  appeal,  while  inter- 
esting from  the  standpoint  of  ontology,  is  of  limited  practical  help.  Yet  it 
is  significant  that  in  the  MacDonald  situation  the  Government  must  go 
back  to  the  grand  jury  and  seek  reindictment.  When  the  district  court  dis- 
misses an  indictment,  on  the  other  hand,  the  court  of  appeals  can  reinstate 
the  indictment  with  the  stroke  of  a  pen. 


UNITED  STATES  v.  LOUD  HAWK  321 

302  MARSHALL,  J. ,  dissenting 

appeal.  One  of  the  primary  purposes  of  the  speedy  trial 
right,  of  course,  is  to  prevent  prolonged  restraints  on  liberty, 
id.,  Sit  8;  Barker  v.  Wingo,  407  U.  S.,  at  532,  and  the  absence 
of  any  possibility  of  such  restraints  was  a  vital  part  of  our 
MacDonald  holding.  See  456  U.  S.,  at  9.  In  contrast,  Con- 
gress has  declared  explicitly,  in  18  U.  S.  C.  §3731,  that  a 
person  in  respondents'  position  shall  be  subject  to  the  same 
restraints  as  an  arrested  defendant  awaiting  trial.4  Thus 
the  District  Court  had  the  undoubted  authority  to  condition 
respondents'  release  on  the  posting  of  bail,  or  indeed  to  keep 
them  in  jail  throughout  the  appeal,  see  18  U.  S.  C.  §3142(e) 
(1982  ed.,  Supp.  III).  Respondents'  release  could  have  been 
accompanied  by  restrictions  on  travel,  association,  employ- 
ment, abode,  and  firearms  possession,  or  conditioned  on  their 
reporting  regularly  to  law  enforcement  officers  and/or  keep- 
ing a  curfew.  See  §3142(c).  Considering  all  the  circum- 
stances, therefore,  I  believe  that  respondents'  position  is 
most  closely  analogous  to  that  of  a  defendant  who  has  been 
arrested  but  not  yet  indicted. 

B 

As  if  acknowledging  that  the  delay  in  this  case  is  more 
analogous  to  postarrest,  preindictment  delay  than  to  pre- 
arrest  delay,  the  majority  concedes  that  had  respondents 
been  incarcerated  or  forced  to  post  bond  during  the  Govern- 
ment's appeals,  the  automatic  exclusion  rule  of  MacDonald 
would  not  apply.  Ante,  at  311,  n.  13.  Yet,  inexplicably,  the 
majority  then  suggests  that  the  Speedy  Trial  Clause  applies 
to  postarrest,  preindictment  delay  only  when  the  defendant 
has  been  subjected  to  "'actual  restraints,'"  ante,  at  310, 

4  Title  18  U.  S.  C.  §3731  provides  in  pertinent  part:  "Pending  the  pros- 
ecution and  determination  of  the  appeal .  .  .  the  defendant  shall  be  released 
in  accordance  with  chapter  207  of  this  title."  Chapter  207,  18  U.  S.  C. 
§§3141-3156,  contains  the  procedures  for  pretrial  release,  and  permits  the 
district  courts  to  impose  various  restraints  pending  trial.  The  Govern- 
ment concedes  that  respondents  could  have  been  incarcerated  or  put  under 
other  restraints  during  the  Government's  appeals.  Tr.  of  Oral  Arg.  6,  18. 


322  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

quoting  Marion,  404  U,  S.,  at  320  (emphasis  added  by  major- 
ity opinion).  The  majority  completely  misreads  Marion 
while  creating  a  rule  that  is  flatly  inconsistent  with  our  prior 
holdings. 

We  held  in  Marion  that  prearrest  delay  is  not  cognizable 
under  the  Speedy  Trial  Clause,  but  we  certainly  did  not  dis- 
turb the  settled  rule  that  the  Government's  formal  institution 
of  criminal  charges,  whether  through  arrest  or  indictment, 
always  calls  the  speedy  trial  right  into  play.  See  id.,  at 
316-319;  see  also  United  States  v.  Gouveia,  467  U.  S.  180, 
185-186  (1984).  Although  it  specified  detention  and  bail  as 
possible  deleterious  effects  of  a  formal  criminal  charge,  Mar- 
ion nowhere  suggested  that  it  is  the  restraints  themselves, 
rather  than  the  assertion  of  probable  cause,  that  constitute 
an  accusation.  Nor  did  we  hold  that  a  criminal  charge  has 
less  constitutional  significance  when  a  defendant  is  released 
on  recognizance  rather  than  on  bail.  See  404  U.  S.,  at  321, 
n.  12.  The  majority  identifies  no  logic  or  precedent  support- 
ing its  novel  conclusion  that  a  defendant  who  is  arrested  and 
released  on  bail  is  "accused,"  while  a  defendant  who  is  ar- 
rested and  released  without  bail,  on  the  same  evidence,  is  not 
"accused."6 

Indeed,  we  have  rejected  precisely  the  interpretation  of 

Marion  that  the  majority  now  adopts.      In  Dillingham  v. 

United  States,  423  U.  S.  64  (1975)  (per  curiam),  we  held  that 


6  It  is  worth  noting  that  the  Speedy  Trial  Act  puts  time  limits  on  the 
Government  beginning  with  "the  date  on  which  [the  defendant]  was  ar- 
rested or  served  with  a  summons,"  18  U.  S.  C.  §  3161,  without  regard  to 
the  terms  of  the  defendant's  release. 

Moreover,  Federal  Rule  of  Criminal  Procedure  48(b),  which  "provides 
for  enforcement  of  the  [speedy  trial]  right,"  Pollard  v.  United  States,  352 
U.  S.  354,  361,  n.  7  (1957);  see  Marion,  404  U.  S.,  at  319,  states:  "If  there 
is  unnecessary  delay  in  presenting  the  charge  to  a  grand  jury  or  in  filing  an 
information  against  a  defendant  who  has  been  held  to  answer  to  the  district 
court,  .  .  .  the  court  may  dismiss  the  indictment,  information  or  complaint." 
That  language  clearly  confers  the  same  rights  on  a  defendant  who  is  ar- 
rested and  unconditionally  released  as  one  who  is  released  on  conditions. 


UNITED  STATES  u  LOUD  HAWK  323 

302  MARSHALL,  J.,  dissenting 

Marion  does  not  require  "actual  prejudice"  to  invoke  the 
speedy  trial  right  for  postarrest,  preindictment  delay.  Such 
"actual  prejudice"  included  the  "actual  restraints"  that  the 
majority  now  requires.  The  Court  of  Appeals  in- that  case 
noted  that  the  defendant  was  released  on  bond,  but  without 
any  other  restrictions,  pending  trial.  After  citing  Marion,  it 
held  that  "any  increased  strain  on  this  man's  life  which  fol- 
lowed his  arrest  .  .  .  does  not  rise  to  the  level  of  substantial 
actual  prejudice."  United  States  v.  Palmer,  502  F.  2d  1233, 
1237  (CAS  1974),  rev'd  sub  nom.  Dillingham  v.  United 
States,  supra.  We  summarily  rejected  the  "actual  preju- 
dice" rationale,  and  the  majority  gives  no  reason  whatsoever 
for  resurrecting  it  today.6 

There  can  be  no  question  that  one  who  had  been  arrested 
and  released  under  18  U.  S.  C.  §3141(a)  (1982  ed.,  Supp.  Ill) 
would  be  entitled,  under  Marion,  to  the  protections  of  the 
Speedy  Trial  Clause.  Because  respondents  were  by  statute 
subject  to  the  same  restraints  as  that  hypothetical  defendant, 
I  am  at  a  loss  to  understand  why  they  should  enjoy  less 
protection. 

II 

The  majority  also  declines  to  hold  the  Government  account- 
able for  delay  attributable  to  appeals  during  which  respond- 


6  Apparently  relying  on  the  fact  that  the  defendant  in  Dilhngham  had  to 
post  a  $1,500  bond,  see  502  F.  2d,  at  1234,  the  Government  reads 
Dillingham  to  stand  for  the  proposition  that  any  restriction,  no  matter  how 
insignificant,  invokes  the  Speedy  Trial  Clause  when  no  indictment  is  out- 
standing. See  Tr.  of  Oral  Arg.  19.  Once  again,  neither  the  plain  lan- 
guage of  the  Sixth  Amendment  nor  any  decision  of  this  Court  suggests  this 
peculiar  constitutional  standard.  Moreover,  while  an  indictment  and  an 
arrest  are  comparable  in  that  each  one  constitutes  a  formal  assertion  of 
probable  cause,  there  is  no  such  symmetry  between  an  indictment  and 
incarceration  or  posting  of  bond.  Simply  put,  the  position  advanced  by 
the  Government  and  the  majority  lacks  even  internal  consistency. 

The  only  sensible  reading  of  Dilhngham  is  that  actual  restraints,  like 
other  types  of  prejudice  to  a  defendant,  are  relevant  to  the  speedy  trial 


324  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

ents  were  under  indictment.  In  doing  so  the  majority  em- 
phasizes the  second  Barker  factor— the  reason  for  the  delay, 
see  407  U.  S.,  at  530.  Because  it  concludes  that  "[t]here  is 
no  showing  of  bad  faith  or  dilatory  purpose  on  the  Govern- 
ment's part,"  the  majority  declines  to  accord  any  "effective 
weight"  to  this  factor  in  the  speedy  trial  balance.  Ante,  at 
316.  In  reaching  this  conclusion,  it  virtually  ignores  the 
most  obvious  "reason  for  the  delay"  in  this  case — the  fact  that 
the  Court  of  Appeals  was  unable  to  decide  these  appeals  in  a 
reasonably  prompt  manner. 

In  Barker,  we  explained  the  application  of  the  "reason  for 
the  delay"  factor  as  follows: 

"[D]ifferent  weights  should  be  assigned  to  different  rea- 
sons. A  deliberate  attempt  to  delay  the  trial  in  order  to 
hamper  the  defense  should  be  weighted  heavily  against 
the  government.  A  more  neutral  reason  such  as  negli- 
gence or  overcrowded  courts  should  be  weighted  less 
heavily  but  nevertheless  should  be  considered  since  the 
ultimate  responsibility  for  such  circumstances  must  rest 
with  the  government  rather  than  with  the  defendant." 
407  U.  S.,  at  531  (footnote  omitted). 

The  majority's  application  of  this  factor  to  the  appellate  de- 
lays in  this  case  makes  Government  misconduct  or  bad  faith  a 
virtual  prerequisite  to  a  finding  of  a  speedy  trial  violation. 
Seizing  upon  the  approach  of  some  of  the  Courts  of  Appeals,7 
the  majority  analyzes  the  reason  behind  the  appellate  delay 
solely  in  terms  of  the  reasonableness  of  the  Government's  be- 
havior in  taking  and  prosecuting  the  appeal.  This  approach 
is  inconsistent  with  the  policies  behind  the  speedy  trial  right. 
We  recognized  in  Barker  that  the  right  protects  both  the  de- 
fendant's interest  in  fairness  and  society's  interest  in  provid- 


balance,  but  are  not  prerequisites  to  application  of  the   Speedy  Trial 
Clause.     See  Barker  v.  Wingo,  407  U.  S.  514,  533  (1972). 

7  See,  e.  g.,  United  States  v.  Sa^nt^l,  705  F.  2d  415  (CA11  1983);  United 
States  v.  Herman,  576  F.  2d  1139  (CA5  1978). 


UNITED  STATES  v.  LOUD  HAWK  325 

302  MARSHALL,  J.,  dissenting 

ing  swift  justice.  Id. ,  at  519.  Courts  as  well  as  prosecutors 
must  necessarily  work  to  promote  those  interests  if  they  are 
to  have  any  vitality.  Because  it  is  the  Government  as  a 
whole— including  the  courts— that  bears  the  responsibility 
to  provide  a  speedy  trial,  the  prosecutor's  good  faith  cannot 
suffice  to  discharge  that  responsibility.8 

The  Court  of  Appeals  frankly  admitted  that  "most  of  the 
delay  must  be  attributed  to  the  processes  of  this  court,"  741 
F.  2d  1184,  1191  (CA9  1984),  a  conclusion  that  is  difficult  to 
escape.  This  case  involves  appeals  from  pretrial  rulings. 
The  Court  of  Appeals  had  every  reason  to  know  that  these 
appeals  should  have  been  ruled  upon  as  expeditiously  as  pos- 
sible. See  that  court's  Rule  20.  Yet  it  took  over  five  years 
for  the  Court  of  Appeals  to  decide  two  appeals,  one  of  them 
"expedited."  No  complicated  analysis  is  needed  to  identify 
the  reason  for  the  delay  in  this  case. 

I  would  hold,  simply,  that  a  nonfrivolous  appeal  by  any 
party  permits  a  reasonable  delay  in  the  proceedings.  The 
number  and  complexity  of  the  issues  on  appeal,  or  the  num- 
ber of  parties,  might  permit  a  greater  or  lesser  delay  in  a 
given  case.  The  government,  not  the  defendant,  must  suffer 
the  ultimate  consequences  of  delays  attributable  to  "over- 
crowded courts,"  ibid.,  even  at  the  appellate  level.9  In  the 

8  This  assumes,  of  course,  that  the  defendant  wants  a  speedy  trial  and  is 
not  intentionally  hindering  the  government's  attempt  to  provide  one. 
That  assumption  may  be  open  to  question  in  this  case.      The  majority 
points  out  that  respondents*  strategically  timed  demands  for  a  speedy  trial 
ring  somewhat  hollow  in  light  of  respondents'  overall  behavior  during  the 
litigation.     Were  that  the  basis  for  the  Court's  opinion,  I  might  be  able  to 
accept  a  remand  to  the  Court  of  Appeals  for  further  consideration  of  that 
factor.     I  am  unable,  however,  to  agree  with  the  majority's  analysis  of  the 
second  Barker  v.  Wingo  factor. 

9  The  majority's  focus  on  the  prosecution's,  rather  than  the  court's,  con- 
tribution to  the  delay  undoubtedly  comes  in  part  from  a  reluctance  to  per- 
mit district  courts  to  tell  a  court  of  appeals,  or  possibly  this  Court,  that  it 
has  taken  too  long  to  decide  a  case.      However,  appellate  courts  have  no 
privilege  to  decline  constitutional  obligations.     The  appellate  courts  would 
be  better  advised  to  adopt  procedures  for  the  speedy  resolution  of  mterloc- 


326  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

present  case,  the  amount  of  time  that  the  appeals  consumed 
is  patently  unreasonable.  I  would  therefore  weigh  the  sec- 
ond Barker  factor  against  the  Government  in  this  case. 

Ill 

The  majority  has  seriously  misapplied  our  precedents  in 
concluding  that  delay  resulting  when  the  government  appeals 
the  dismissal  of  an  indictment  is  excludable  for  speedy  trial 
purposes  unless  the  defendant  is  subjected  to  actual  re- 
straints during  that  appeal.  Its  application  of  Barker  v. 
Wingo  to  this  case  also  undercuts  the  very  purpose  of  the 
speedy  trial  right.  I  respectfully  dissent. 


utory  criminal  appeals  than  to  force  district  courts  into  the  uncomfortable 
position  of  dismissing  indictments  because  of  appellate  delay. 


DANIELS  v.  WILLIAMS  327 

Syllabus 

DANIELS  v.  WILLIAMS 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  FOURTH  CIRCUIT 

No.  84-5872.     Argued  November  6,  1985— Decided  January  21,  1986 

Petitioner  brought  an  action  in  Federal  District  Court  under  42  U.  S.  C. 
§  1983,  seeking  to  recover  damages  for  injuries  allegedly  sustained 
when,  while  an  inmate  in  a  Richmond,  Virginia,  jail,  he  slipped  on  a 
pillow  negligently  left  on  a  stairway  by  respondent  sheriff's  deputy. 
Petitioner  contends  that  such  negligence  deprived  him  of  his  "liberty" 
interest  in  freedom  from  bodily  injury  '"without  due  process  of  law" 
within  the  meaning  of  the  Due  Process  Clause  of  the  Fourteenth  Amend- 
ment. The  District  Court  granted  respondent's  motion  for  summary 
judgment,  and  the  Court  of  Appeals  affirmed. 

Held:  The  Due  Process  Clause  is  not  implicated  by  a  state  official's  negli- 
gent act  causing  unintended  loss  of  or  injury  to  life,  liberty,  or  property. 
Pp.  329-336. 

(a)  The  Due  Process  Clause  was  intended  to  secure  an  individual  from 
an  abuse  of  power  by  government  officials.     Far  from  an  abuse  of  power, 
lack  of  due  care,  such  as  respondent's  alleged  negligence  here,  suggests 
no  more  than  a  failure  to  measure  up  to  the  conduct  of  a  reasonable  per- 
son.    To  hold  that  injury  caused  by  such  conduct  is  a  deprivation  within 
the  meaning  of  the  Due  Process  Clause  would  trivialize  the  centuries-old 
principle  of  due  process  of  law.     Parratt  v.  Taylor,  451  U.  S.  527,  over- 
ruled to  the  extent  that  it  states  otherwise.     Pp.  329-332. 

(b)  The  Constitution  does  not  purport  to  supplant  traditional  tort  law 
in  laying  down  rules  of  conduct  to  regulate  liability  for  injuries  that 
attend  living  together  in  society.     While  the  Due  Process  Clause  speaks 
to  some  facets  of  the  relationship  between  jailers  and  inmates,  its  protec- 
tions are  not  triggered  by  lack  of  due  care  by  the  jailers.     Jailers  may 
owe  a  special  duty  of  care  under  state  tort  law  to  those  in  their  custody, 
but  the  Due  Process  Clause  does  not  embrace  such  a  tort  law  concept. 
Pp.  332-336. 

748  F.  2d  229,  affirmed. 

REHNQUIST,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER, 
C.  J.,  and  BRENNAN,  WHITE,  POWELL,  and  O'CONNOR,  JJ.,  joined.  MAR- 
SHALL, J.,  concurred  in  the  result.  BLACKMUN,  J.,  post,  p.  336,  and 
STEVENS,  J.,  post,  p.  336,  filed  opinions  concurring  in  the  judgment. 


328  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U,  S. 

Stephen  Allan  Saltzburg  argued  the  cause  and  filed  briefs 
for  petitioner. 

James  Walter  Hopper  argued  the  cause  and  filed  a  brief  for 
respondent. 

JUSTICE  REHNQUIST  delivered  the  opinion  of  the  Court. 
In  Parratt  v.  Taylor,  451  U.  S.  527  (1981),  a  state  prisoner 
sued  under  42  U.  S.  C.  §  1983,  claiming  that  prison  officials 
had  negligently  deprived  him  of  his  property  without  due 
process  of  law.     After  deciding  that  §  1983  contains  no  inde- 
pendent state-of-mind  requirement,  we  concluded  that  al- 
though petitioner  had  been  "deprived"  of  property  within 
the  meaning  of  the  Due  Process  Clause  of  the  Fourteenth 
Amendment,  the  State's  postdeprivation  tort  remedy  pro- 
vided the  process  that  was  due.     Petitioner's  claim  in  this 
case,  which  also  rests  on  an  alleged  Fourteenth  Amendment 
"deprivation"  caused  by  the  negligent  conduct  of  a  prison  offi- 
cial, leads  us  to  reconsider  our  statement  in  Parratt  that  "the 
alleged  loss,  even  though  negligently  caused,  amounted  to  a 
deprivation."     Id.,  at  536-537.     We  conclude  that  the  Due 
Process  Clause  is  simply  not  implicated  by  a  negligent  act  of 
an  official  causing  unintended  loss  of  or  injury  to  life,  liberty, 
or  property. 

In  this  §  1983  action,  petitioner  seeks  to  recover  damages 
for  back  and  ankle  injuries  allegedly  sustained  when  he  fell  on 
a  prison  stairway.  He  claims  that,  while  an  inmate  at  the 
city  jail  in  Richmond,  Virginia,  he  slipped  on  a  pillow  negli- 
gently left  on  the  stairs  by  respondent,  a  correctional  deputy 
stationed  at  the  jail.  Respondent's  negligence,  the  argu- 
ment runs,  "deprived"  petitioner  of  his  "liberty"  interest  in 
freedom  from  bodily  injury,  see  Ingraham  v.  Wright,  430 
U.  S.  651,  673  (1977);  because  respondent  maintains  that  he 
is  entitled  to  the  defense  of  sovereign  immunity  in  a  state 
tort  suit,  petitioner  is  without  an  "adequate"  state  remedy, 
cf.  Hudson  v.  Palmer,  468  U.  S.  517,  534-536  (1984).  Ac- 
cordingly, the  deprivation  of  liberty  was  without  "due  proc- 
ess of  law." 


DANIELS  v.  WILLIAMS  329 

327  Opinion  of  the  Court 

The  District  Court  granted  respondent's  motion  for  sum- 
mary judgment.  A  panel  of  the  Court  of  Appeals  for  the 
Fourth  Circuit  affirmed,  concluding  that  even  if  respondent 
could  make  out  an  immunity  defense  in  state  court,  petitioner 
would  not  be  deprived  of  a  meaningful  opportunity  to  present 
his  case.  720  F.  2d  792  (1983).  On  rehearing,  the  en  bane 
Court  of  Appeals  affirmed  the  judgment  of  the  District 
Court,  but  under  reasoning  different  from  that  of  the  panel. 
748  F.  2d  229  (1984).  First,  a  5-4  majority  ruled  that  negli- 
gent infliction  of  bodily  injury,  unlike  the  negligent  loss  of 
property  in  Parratt,  does  not  constitute  a  deprivation  of  any 
interest  protected  by  the  Due  Process  Clause.  The  majority 
therefore  believed  that  the  postdeprivation  process  man- 
dated by  Parratt  for  property  losses  was  not  required.  Sec- 
ond, the  en  bane  court  unanimously  decided  that  even  if  a 
prisoner  is  entitled  to  some  remedy  for  personal  injuries 
attributable  to  the  negligence  of  state  officials,  Parratt  would 
bar  petitioner's  claim  if  the  State  provided  an  adequate 
postdeprivation  remedy.  Finally,  a  6-3  majority  concluded 
that  petitioner  had  an  adequate  remedy  in  state  court,  even 
though  respondent  asserted  that  he  would  rely  on  sovereign 
immunity  as  a  defense  in  a  state  suit.  The  majority  appar- 
ently believed  that  respondent's  sovereign  immunity  defense 
would  fail  under  Virginia  law. 

Because  of  the  inconsistent  approaches  taken  by  lower 
courts  in  determining  when  tortious  conduct  by  state  officials 
rises  to  the  level  of  a  constitutional  tort,  see  Jackson  v.  Jo- 
liet,  465  U.  S.  1049,  1050  (1984)  (WHITE,  J.,  dissenting  from 
denial  of  certiorari)  (collecting  cases),  and  the  apparent  lack 
of  adequate  guidance  from  this  Court,  we  granted  certiorari. 
469  U.  S.  1207  (1985).  We  now  affirm. 

In  Parratt  v.  Taylor,  we  granted  certiorari,  as  we  had 
twice  before,  "to  decide  whether  mere  negligence  will  sup- 
port a  claim  for  relief  under  §1983."  451  U.  S.,  at  532. 
After  examining  the  language,  legislative  history,  and  prior 
interpretations  of  the  statute,  we  concluded  that  §  1983,  un- 


330  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

like  its  criminal  counterpart,  18  U.  S.  C.  §242,  contains  no 
state-of-mind  requirement  independent  of  that  necessary  to 
state  a  violation  of  the  underlying  constitutional  right.  Id. , 
at  534-535.  We  adhere  to  that  conclusion.  But  in  any  given 
§  1983  suit,  the  plaintiff  must  still  prove  a  violation  of  the 
underlying  constitutional  right;  and  depending  on  the  right, 
merely  negligent  conduct  may  not  be  enough  to  state  a  claim. 
See,  e.  g.,  Arlington  Heights  v.  Metropolitan  Housing  Dev. 
Corp. ,  429  U.  S.  252  (1977)  (invidious  discriminatory  purpose 
required  for  claim  of  racial  discrimination  under  the  Equal 
Protection  Clause);  Estelle  v.  Gamble,  429  U.  S.  97,  105 
(1976)  ("deliberate  indifference"  to  prisoner's  serious  illness 
or  injury  sufficient  to  constitute  cruel  and  unusual  punish- 
ment under  the  Eighth  Amendment). 

In  Parratt,  before  concluding  that  Nebraska's  tort  remedy 
provided  all  the  process  that  was  due,  we  said  that  the  loss  of 
the  prisoner's  hobby  kit,  "even  though  negligently  caused, 
amounted  to  a  deprivation  [under  the  Due  Process  Clause]." 
451  U.  S.,  at  536-537.     JUSTICE  POWELL,  concurring  in  the 
result,  criticized  the  majority  for  "pass[ing]  over"  this  impor- 
tant question  of  the  state  of  mind  required  to  constitute  a 
"deprivation"  of  property.     Id. ,  at  547.     He  argued  that  neg- 
ligent acts  by  state  officials,  though  causing  loss  of  property, 
are  not  actionable  under  the  Due  Process  Clause.      To  JUS- 
TICE POWELL,  mere  negligence  could  not  "wor[k]  a  depriva- 
tion in  the  constitutional  sense."     Id.,  at  548  (emphasis  in 
original).     Not  only  does  the  word  "deprive"  in  the  Due  Proc- 
ess Clause  connote  more  than  a  negligent  act,  but  we  should 
not  "open  the  federal  courts  to  lawsuits  where  there  has  been 
no  affirmative  abuse  of  power."    Id.,  at  548-549;  see  also  id., 
at  545  (Stewart,  J.,  concurring)  ("To  hold  that  this  kind  of 
loss  is  a  deprivation  of  property  within  the  meaning  of  the 
Fourteenth  Amendment  seems  not  only  to  trivialize,   but 
grossly  to  distort  the  meaning  and  intent  of  the  Constitu- 
tion").    Upon  reflection,  we  agree  and  overrule  Parratt  to 
the  extent  that  it  states  that  mere  lack  of  due  care  by  a  state 


DANIELS  v.  WILLIAMS  331 

327  Opinion  of  the  Court 

official  may  "deprive"  an  individual  of  life,  liberty,  or  prop- 
erty under  the  Fourteenth  Amendment. 

The  Due  Process  Clause  of  the  Fourteenth  Amendment 
provides:  "[N]or  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law."  Histori- 
cally, this  guarantee  of  due  process  has  been  applied  to  delib- 
erate decisions  of  government  officials  to  deprive  a  person  of 
life,  liberty,  or  property.  E.  g.,  Davidson  v.  New  Orleans, 
96  U.  S.  97  (1878)  (assessment  of  real  estate);  Rochin  v.  Cali- 
fornia, 342  U.  S.  165  (1952)  (stomach  pumping);  Bell  v.  Bur- 
son,  402  U.  S.  535  (1971)  (suspension  of  driver's  license); 
Ingraham  v.  Wright,  430  U.  S.  651  (1977)  (paddling  student); 
Hudson  v.  Palmer,  468  U.  S.  517  (1984)  (intentional  destruc- 
tion of  inmate's  property).  No  decision  of  this  Court  before 
Parratt  supported  the  view  that  negligent  conduct  by  a  state 
official,  even  though  causing  injury,  constitutes  a  depriva- 
tion under  the  Due  Process  Clause.  This  history  reflects 
the  traditional  and  common-sense  notion  that  the  Due  Proc- 
ess Clause,  like  its  forebear  in  the  Magna  Carta,  see  Corwin, 
The  Doctrine  of  Due  Process  of  Law  Before  the  Civil  War,  24 
Harv.  L.  Rev.  366,  368  (1911),  was  "'intended  to  secure 
the  individual  from  the  arbitrary  exercise  of  the  powers  of 
government/"  Hurtado  v.  California,  110  U.  S.  516,  527 
(1884)  (quoting  Bank  of  Columbia  v.  Okely,  4  Wheat.  235, 
244  (1819)).  See  also  Wolff  v.  McDonnell,  418  U.  S.  539,  558 
(1974)  ("The  touchstone  of  due  process  is  protection  of  the  in- 
dividual against  arbitrary  action  of  government,  Dent  v.  West 
Virginia,  129  U.  S.  114,  123  (1889)");  Parratt,  supra,  at  549 
(POWELL,  J.,  concurring  in  result).  By  requiring  the  gov- 
ernment to  follow  appropriate  procedures  when  its  agents 
decide  to  "deprive  any  person  of  life,  liberty,  or  property," 
the  Due  Process  Clause  promotes  fairness  in  such  decisions. 
And  by  barring  certain  government  actions  regardless  of  the 
fairness  of  the  procedures  used  to  implement  them,  e.  g., 
Rochin,  supra,  it  serves  to  prevent  governmental  power 
from  being  "used  for  purposes  of  oppression,"  Murray's  Les- 


332  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

see  v.  Hoboken  Land  &  Improvement  Co.,  18  How.  272,  277 
(1856)  (discussing  Due  Process  Clause  of  Fifth  Amendment). 
We  think  that  the  actions  of  prison  custodians  in  leaving  a 
pillow  on  the  prison  stairs,  or  mislaying  an  inmate's  property, 
are  quite  remote  from  the  concerns  just  discussed.     Far  from 
an  abuse  of  power,  lack  of  due  care  suggests  no  more  than  a 
failure  to  measure  up  to  the  conduct  of  a  reasonable  person. 
To  hold  that  injury  caused  by  such  conduct  is  a  deprivation 
within  the  meaning  of  the  Fourteenth  Amendment  would 
trivialize  the  centuries-old  principle  of  due  process  of  law. 
The  Fourteenth  Amendment  is  a  part  of  a  Constitution 
generally  designed  to  allocate  governing  authority  among  the 
Branches  of  the  Federal  Government  and  between  that  Gov- 
ernment and  the  States,  and  to  secure  certain  individual 
rights  against  both  State  and  Federal  Government.     When 
dealing  with  a  claim,  that  such  a  document  creates  a  right  in 
prisoners  to  sue  a  government  official  because  he  negligently 
created  an  unsafe  condition  in  the  prison,  we  bear  in  mind 
Chief  Justice  Marshall's  admonition  that  "we  must  never  for- 
get, that  it  is  a  constitution  we  are  expounding,"  McCulloch 
v.  Maryland,  4  Wheat.  316,  407  (1819)  (emphasis  in  original). 
Our  Constitution  deals  with  the  large  concerns  of  the  gover- 
nors and  the  governed,  but  it  does  not  purport  to  supplant 
traditional  tort  law  in  laying  down  rules  of  conduct  to  regu- 
late liability  for  injuries  that  attend  living  together  in  society. 
We  have  previously  rejected  reasoning  that  "'would  make 
of  the  Fourteenth  Amendment  a  font  of  tort  law  to  be  super- 
imposed upon  whatever  systems  may  already  be  adminis- 
tered by  the  States/"  Paul  v.   Davis,  424  U.  S.   693,   701 
(1976),  quoted  in  Parratt  v.  Taylor,  451  U.  S.,  at  544. 

The  only  tie  between  the  facts  of  this  case  and  anything 
governmental  in  nature  is  the  fact  that  respondent  was  a 
sheriff's  deputy  at  the  Richmond  city  jail  and  petitioner  was 
an  inmate  confined  in  that  jail.  But  while  the  Due  Process 
Clause  of  the  Fourteenth  Amendment  obviously  speaks  to 
some  facets  of  this  relationship,  see,  e.  g.,  Wolff  v.  McDon- 


DANIELS  v.  WILLIAMS  333 

327  Opinion  of  the  Court 

nell,  supra,  we  do  not  believe  its  protections  are  triggered 
by  lack  of  due  care  by  prison  officials.  "Medical  malpractice 
does  not  become  a  constitutional  violation  merely  because 
the  victim  is  a  prisoner,"  Estelle  v.  Gamble,  429  U.  S.  97, 
106  (1976),  and  "false  imprisonment  does  not  become  a  vio- 
lation of  the  Fourteenth  Amendment  merely  because  the 
defendant  is  a  state  official."  Baker  v.  McCollan,  443  U.  S. 
137,  146  (1979).  Where  a  government  official's  act  causing 
injury  to  life,  liberty,  or  property  is  merely  negligent,  "no 
procedure  for  compensation  is  constitutionally  required." 
Parratt,  supra,  at  548  (POWELL,  J.,  concurring  in  result) 
(emphasis  added).1 

That  injuries  inflicted  by  governmental  negligence  are  not 
addressed  by  the  United  States  Constitution  is  not  to  say 
that  they  may  not  raise  significant  legal  concerns  and  lead  to 
the  creation  of  protectible  legal  interests.  The  enactment 
of  tort  claim  statutes,  for  example,  reflects  the  view  that 
injuries  caused  by  such  negligence  should  generally  be 
redressed.2  It  is  no  reflection  on  either  the  breadth  of  the 
United  States  Constitution  or  the  importance  of  traditional 
tort  law  to  say  that  they  do  not  address  the  same  concerns. 

In  support  of  his  claim  that  negligent  conduct  can  give  rise 
to  a  due  process  "deprivation,"  petitioner  makes  several  ar- 
guments, none  of  which  we  find  persuasive.  He  states,  for 
example,  that  "it  is  almost  certain  that  some  negligence 
claims  are  within  §  1983,"  and  cites  as  an  example  the  failure 
of  a  State  to  comply  with  the  procedural  requirements  of 
Wolff  v.  McDonnell,  supra,  before  depriving  an  inmate  of 
good-time  credit.  We  think  the  relevant  action  of  the  prison 


Accordingly,  we  need  not  decide  whether,  as  petitioner  contends,  the 
possibility  of  a  sovereign  immunity  defense  in  a  Virginia  tort  suit  would 
render  that  remedy  "inadequate"  under  Parratt  and  Hudson  v.  Pa  liner, 
468  U.  S.  517  (1984). 

2  See,  e.  g.,  the  Virginia  Tort  Claims  Act,  Va.  Code  §8.01-195  1  et  sec/ 
(1984),  which  applies  only  to  actions  accruing  on  or  after  July  1,  1982,  and 
hence  is  inapplicable  to  this  case. 


334  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

officials  in  that  situation  is  their  deliberate  decision  to  de- 
prive the  inmate  of  good-time  credit,  not  their  hypothetically 
negligent  failure  to  accord  him  the  procedural  protections  of 
the  Due  Process  Clause.  But  we  need  not  rule  out  the  pos- 
sibility that  there  are  other  constitutional  provisions  that 
would  be  violated  by  mere  lack  of  care  in  order  to  hold,  as  we 
do,  that  such  conduct  does  not  implicate  the  Due  Process 
Clause  of  the  Fourteenth  Amendment. 

Petitioner  also  suggests  that  artful  litigants,  undeterred  by 
a  requirement  that  they  plead  more  than  mere  negligence, 
will  often  be  able  to  allege  sufficient  facts  to  support  a  claim 
of  intentional  deprivation.     In  the  instant  case,  for  example, 
petitioner  notes  that  he  could  have  alleged  that  the  pillow 
was  left  on  the  stairs  with  the  intention  of  harming  him. 
This   invitation  to   "artful"   pleading,    petitioner   contends, 
would  engender  sticky  (and  needless)  disputes  over  what  is 
fairly  pleaded.     What's  more,  requiring  complainants  to  al- 
lege something  more  than  negligence  would  raise  serious 
questions  about  what  "more"  than  negligence— intent,  reck- 
lessness,  or  "gross  negligence" — is  required,3   and  indeed 
about  what  these  elusive  terms  mean.     See  Reply  Brief  for 
Petitioner  9  ("what  terms  like  willful,  wanton,  reckless  or 
gross  negligence  mean"  has  "left  the  finest  scholars  puz- 
zled").    But  even  if  accurate,  petitioner's  observations  do  not 
carry  the  day.     In  the  first  place,  many  branches  of  the  law 
abound  in  nice  distinctions  that  may  be  troublesome  but  have 
been  thought  nonetheless  necessary: 

"I  do  not  think  we  need  trouble  ourselves  with  the 
thought  that  my  view  depends  upon  differences  of  de- 
gree. The  whole  law  does  so  as  soon  as  it  is  civilized." 


8  Despite  his  claim  about  what  he  might  have  pleaded,  petitioner  con- 
cedes that  respondent  was  at  most  negligent.  Accordingly,  this  case  af- 
fords us  no  occasion  to  consider  whether  something  less  than  intentional 
conduct,  such  as  recklessness  or  "gross  negligence,"  is  enough  to  trigger 
the  protections  of  the  Due  Process  Clause. 


DANIELS  u  WILLIAMS  335 

327  Opinion  of  the  Court 

LeRoy  Fibre  Co.  v.  Chicago,  M.  &  St.  P.  R.  Co.,  232 
U.  S.  340,  354  (1914)  (Holmes,  J.,  partially  concurring). 

More  important,  the  difference  between  one  end  of  the  spec- 
trum—negligence— and  the  other-— intent — is  abundantly 
clear.  See  O.  Holmes,  The  Common  Law  3  (1923).  In  any 
event,  we  decline  to  trivialize  the  Due  Process  Clause  in  an 
effort  to  simplify  constitutional  litigation. 

Finally,  citing  South  v.  Maryland,  18  How.  396  (1856), 
petitioner  argues  that  respondent's  conduct,  even  if  merely 
negligent,  breached  a  sheriff's  "special  duty  of  care"  for  those 
in  his  custody.  Reply  Brief  for  Petitioner  14.  The  Due 
Process  Clause,  petitioner  notes,  "was  intended  to  give 
Americans  at  least  the  protection  against  governmental 
power  that  they  had  enjoyed  as  Englishmen  against  the 
power  of  the  crown."  Ingraham  v.  Wright,  430  U.  S.,  at 
672-673.  And  South  v.  Maryland  suggests  that  one  such 
protection  was  the  right  to  recover  against  a  sheriff  for 
breach  of  his  ministerial  duty  to  provide  for  the  safety  of 
prisoners  in  his  custody.  18  How.,  at  402-403.  Due  process 
demands  that  the  State  protect  those  whom  it  incarcerates 
by  exercising  reasonable  care  to  assure  their  safety  and  by 
compensating  them  for  negligently  inflicted  injury. 

We  disagree.  We  read  South  v.  Maryland,  supra,  an  ac- 
tion brought  under  federal  diversity  jurisdiction  on  a  Mary- 
land sheriff's  bond,  as  stating  no  more  than  what  this  Court 
thought  to  be  the  principles  of  common  law  and  Maryland  law 
applicable  to  that  case;  it  is  not  cast  at  all  in  terms  of  constitu- 
tional law,  and  indeed  could  not  have  been,  since  at  the  time 
it  was  rendered  there  was  no  due  process  clause  applicable 
to  the  States.  Petitioner's  citation  to  Ingraham  v.  Wright 
does  not  support  the  notion  that  all  common-law  duties  owed 
by  government  actors  were  somehow  constitutionalized  by 
the  Fourteenth  Amendment.  Jailers  may  owe  a  special  duty 
of  care  to  those  in  their  custody  under  state  tort  law,  see 
Restatement  (Second)  of  Torts  §314A(4)  (1965),  but  for  the 
reasons  previously  stated  we  reject  the  contention  that  the 


336  OCTOBER  TERM,  1985 

STEVENS,  J.,  concurring  in  judgments  474  U.  S. 

Due  Process  Clause  of  the  Fourteenth  Amendment  embraces 
such  a  tort  law  concept.  Petitioner  alleges  that  he  was  in- 
jured by  the  negligence  of  respondent,  a  custodial  official 
at  the  city  jail.  Whatever  other  provisions  of  state  law  or 
general  jurisprudence  he  may  rightly  invoke,  the  Fourteenth 
Amendment  to  the  United  States  Constitution  does  not  af- 
ford him  a  remedy. 

Affirmed. 

JUSTICE  MARSHALL  concurs  in  the  result. 

JUSTICE  BLACKMUN,  concurring  in  the  judgment. 
I  concur  in  the  judgment.     See  my  opinion  in  dissent  in 
Davidson  v.  Cannon,  post,  p.  349. 

JUSTICE  STEVENS,  concurring  in  the  judgments.* 
Two  prisoners  raise  similar  claims  in  these  two  cases. 
Both  seek  to  recover  for  personal  injuries  suffered,  in  part, 
from  what  they  allege  was  negligence  by  state   officials. 
Both  characterize  their  injuries  as  "deprivations  of  liberty" 
and  both  invoke  42  U.  S.  C.  §  1983  as  a  basis  for  their  claims. 
Prisoner  Roy  Daniels  was  injured  when  he  slipped  on  a 
newspaper  and  pillows  left  on  a  stairway  in  the  Virginia  jail 
where  he  is  incarcerated;  he  alleges  state  negligence  in  the 
presence  of  the  objects  on  the  stairs.     Prisoner  Robert  Da- 
vidson suffered  injury  when  he  was  attacked  by  another  in- 
mate in  the  New  Jersey  prison  where  he  is  incarcerated;  he 
alleges  (and  proved  at  trial)  state  negligence  in  the  failure  of 
prison  authorities  to  prevent  the  assault  after  he  had  written 
a  note  expressing  apprehension  about  the  inmate  who  ulti- 
mately assaulted  him.     I  agree  with  the  majority  that  peti- 
tioners cannot  prevail  under  §  1983.      I  do  not  agree,  how- 
ever, that  it  is  necessary  either  to  redefine  the  meaning  of 
"deprive"  in  the  Fourteenth  Amendment,1  or  to  repudiate 

*[This  opinion  applies  also  to  Davidson  v.  Cannon  et  al.,  No.  84-6470, 
post,  p.  344.] 

1  "[N]or  shall  any  State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law  .  .  .  ."  U.  S.  Const.,  Amdt.  14. 


DANIELS  v.  WILLIAMS  337 

327  STEVENS,  J.,  concurring  in  judgments 

the  reasoning  of  Parratt  v.  Taylor,  451  U.  S.  527  (1981),  to 
support  this  conclusion. 

We  should  begin  by  identifying  the  precise  constitutional 
claims  that  petitioners  have  advanced.  It  is  not  enough  to 
note  that  they  rely  on  the  Due  Process  Clause  of  the  Four- 
teenth Amendment,  for  that  Clause  is  the  source  of  three  dif- 
ferent kinds  of  constitutional  protection.  First,  it  incorpo- 
rates specific  protections  defined  in  the  Bill  of  Rights.  Thus, 
the  State,  as  well  as  the  Federal  Government,  must  comply 
with  the  commands  in  the  First2  and  Eighth3  Amendments; 
so  too,  the  State  must  respect  the  guarantees  in  the  Fourth,4 
Fifth,5  and  Sixth6  Amendments.  Second,  it  contains  a  sub- 
stantive component,  sometimes  referred  to  as  "substantive 
due  process,"  which  bars  certain  arbitrary  government  ac- 
tions "regardless  of  the  fairness  of  the  procedures  used  to  im- 
plement them."  Ante,  at  331. 7  Third,  it  is  a  guarantee  of 
fair  procedure,  sometimes  referred  to  as  "procedural  due 
process":  the  State  may  not  execute,  imprison,  or  fine  a  de- 
fendant without  giving  him  a  fair  trial,8  nor  may  it  take  prop- 
erty without  providing  appropriate  procedural  safeguards.9 

The  type  of  Fourteenth  Amendment  interest  that  is  impli- 
cated has  important  effects  on  the  nature  of  the  constitutional 
claim  and  the  availability  of  §  1983  relief.  If  the  claim  is  in 


2  See,  e.  g.,  Douglas  v.  Jeannette,  319  U.  S.  157  (1943). 

3 See,  e.  g,  Robinson  v.  California,  370  U.  S.  660  (1962). 

4 See,  e.  g.,  Mapp  v.  Ohio,  367  U.  S.  643  (1961). 

5 See,  e.  g.,  Malloy  v.  Hogan,  378  U.  S.  1  (1964)  (right  to  protection 
from  compelled  self-incrimination  applies  to  States);  Bent  on  v.  Maryland, 
395  U.  S.  784  (1969)  (right  to  protection  from  double  jeopardy  applies  to 
States). 

6 See,  e.  g.,  Duncan  v.  Louisiana,  391  U.  S.  145  (1968)  (right  to  jury 
trial  applies  to  States) 

7See  also  Moore  v  East  Cleveland,  431  U.  S.  494  (1977);  Youngberg  v. 
Romeo,  457  U.  S.  307  (1982). 

8 See,  e.  g.,  Groppi  v.  Leslie,  404  U.  S.  496  (1972),  ///  re  Oliver,  333 
U.  S.  257  (1948). 

9See,  e,  g.,  Fuentes  v.  Shevin,  407  U.  S.  67  (1972). 


338  OCTOBER  TERM,  1985 

STEVENS,  J.,  concurring-  in  judgments  474  U.  S. 

the  first  category  (a  violation  of  one  of  the  specific  constitu- 
tional guarantees  of  the  Bill  of  Rights),  a  plaintiff  may  invoke 
§  1983  regardless  of  the  availability  of  a  state  remedy.10  As 
explained  in  Monroe  v.  Pape,  365  U.  S.  167  (1961),  this  con- 
clusion derives  from  the  fact  that  the  statute — the  Ku  Klux 
Act  of  1871— was  intended  to  provide  a  federal  remedy  for 
the  violation  of  a  federal  constitutional  right.  Thus,  when 
the  Fourth  Amendment  is  violated,  as  in  Pape,  the  provision 
of  an  independent  federal  remedy  under  §  1983  is  necessary 
to  satisfy  the  purpose  of  the  statute. 

Similarly,  if  the  claim  is  in  the  second  category  (a  violation 
of  the  substantive  component  of  the  Due  Process  Clause),  a 
plaintiff  may  also  invoke  §  1983  regardless  of  the  availability 
of  a  state  remedy.11  For,  in  that  category,  no  less  than  with 
the  provisions  of  the  Bill  of  Rights,  if  the  Federal  Constitu- 
tion prohibits  a  State  from  taking  certain  actions  "regardless 
of  the  fairness  of  the  procedures  used  to  implement  them," 
the  constitutional  violation  is  complete  as  soon  as  the  prohib- 
ited action  is  taken;  the  independent  federal  remedy  is  then 
authorized  by  the  language  and  legislative  history  of  §  1983. 

A  claim  in  the  third  category — a  procedural  due  process 
claim— is  fundamentally  different.  In  such  a  case,  the  depri- 
vation may  be  entirely  legitimate — a  State  may  have  every 
right  to  discharge  a  teacher  or  punish  a  student — but  the 
State  may  nevertheless  violate  the  Constitution  by  failing  to 
provide  appropriate  procedural  safeguards.  The  constitu- 
tional duty  to  provide  fair  procedures  gives  the  citizen  the 
opportunity  to  try  to  prevent  the  deprivation  from  happen- 
ing, but  the  deprivation  itself  does  not  necessarily  reflect  any 


10  See,  e.  g.,  Monroe  v.  Pape,  365  U.  S.  167  (1961)  (§1983  action  for 
Fourth  Amendment  violation);  Smith  v.  Wade,  461  U.  S.  30  (1983)  (§  1983 
action  for  Eighth  Amendment  violation).     See  generally  McNeese  v.  Board 
of  Education,  373  U.  S.  668,  672  (1963)  (§  1983  is  "supplementary  to  any 
remedy  any  State  might  have"). 

11  Cf.  Parratt  v.  Taylor,  451  U.  S.  527,  545  (1981)  (BLACKMUN,  J.,  con- 
curring); Roe  v.  Wade,  410  U.  S.  113  (1973). 


DANIELS  v.  WILLIAMS  339 

327  STEVENS,  J.,  concurring  in  judgments 

"abuse"  of  state  power.  Similarly,  a  deprivation  may  be  the 
consequence  of  a  mistake  or  a  negligent  act,  and  the  State 
may  violate  the  Constitution  by  failing  to  provide  an  appro- 
priate procedural  response.  In  a  procedural  due  process 
claim,  it  is  not  the  deprivation  of  property  or  liberty  that  is 
unconstitutional;  it  is  the  deprivation  of  property  or  liberty 
without  due  process  of  law — without  adequate  procedures. 
Thus,  even  though  the  State  may  have  every  right  to  de- 
prive a  person  of  his  property  or  his  liberty,  the  individual 
may  nevertheless  be  able  to  allege  a  valid  §  1983  due  process 
claim,  perhaps  because  a  predeprivation  hearing  must  be 
held,12  or  because  the  state  procedure  itself  is  fundamentally 
flawed.13  So  too,  even  though  a  deprivation  may  be  unau- 
thorized, a  procedural  due  process  claim  may  be  raised  if  it 
challenges  the  State's  procedures  for  preventing  or  redress- 
ing the  deprivation.  However,  a  complaint  does  not  state  a 
valid  procedural  due  process  objection — and  a  valid  §1983 
claim— if  it  does  not  include  a  challenge  to  the  fundamental 
fairness  of  the  State's  procedures.  In  consequence,  when 
a  predeprivation  hearing  is  clearly  not  feasible,14  when  the 
regime  of  state  tort  law  provides  a  constitutionally  unobjec- 
tionable system  of  recovery  for  the  deprivation  of  property  or 
liberty,  and  when  there  is  no  other  challenge  to  the  State's 
procedures,  a  valid  §  1983  claim  is  not  stated.  For,  unlike 
cases  in  the  other  two  categories — those  in  which  the  alleged 


12  See,  e.  g.,  Louderrnill  v.  Cleveland  Board  of  Education,  470  U.  S.  532 
(1985);  Carey  v.  Piphus,  435  U.  S.  247  (1978);  Goss  v.  Lopez,  419  U.  S.  565 
(1975).  Cf.  Groppi,  supra. 

13 Cf.  Logan  v.  Zimmerman  Brush  Co.,  455  U.  S.  422,  436  (1982) 
(postdeprivation  state  remedy  is  inadequate  when  challenge  is  to  "the  state 
system  itself");  Baker  v.  McCollan,  443  U.  S.  137,  156  (1979)  (STEVENS, 
J.,  dissenting). 

"See  Hudson  v.  Palmer,  468  U.  S.  517,  533  (1984)  ("[W]hen  depriva- 
tions of  property  are  effected  through  random  and  unauthorized  conduct 
of  a  state  employee,  predeprivation  procedures  are  simply  'impracticable' 
since  the  state  cannot  know  when  such  deprivations  will  occur");  Parratt  v. 
Taylor,  supra. 


340  OCTOBER  TERM,  1985 

STEVENS,  J.,  concurring  in  judgments  474  U.  S. 

deprivation  violates  a  substantive  federal  right — if  a  pro- 
cedural due  process  claim  lacks  a  colorable  objection  to  the 
validity  of  the  State's  procedures,  no  constitutional  violation 
has  been  alleged.16 

Petitioners'  claims  are  not  of  the  first  kind.  Neither  Dan- 
iels nor  Davidson  argues  in  this  Court  that  the  prison  au- 
thorities' actions  violated  specific  constitutional  guarantees 
incorporated  by  the  Fourteenth  Amendment.  Neither  now 
claims,  for  instance,  that  his  rights  under  the  Eighth  Amend- 
ment were  violated.  Similarly,  I  do  not  believe  petitioners 
have  raised  a  colorable  violation  of  "substantive  due  proc- 
ess."16 Rather,  their  claims  are  of  the  third  kind:  Daniels 
and  Davidson  attack  the  validity  of  the  procedures  that  Vir- 
ginia and  New  Jersey,  respectively,  provide  for  prisoners 
who  seek  redress  for  physical  injury  caused  by  the  negligence 
of  corrections  officers. 

I  would  not  reject  these  claims,  as  the  Court  does,  by 
attempting  to  fashion  a  new  definition  of  the  term  "depriva- 

16 See  id.,  at  543-544. 

16  Davidson  explicitly  disavows  a  substantive  due  process  claim.  See 
Brief  for  Petitioner  in  No.  84-6470,  p.  7  ("[Petitioner  frames  his  claim 
here  purely  in  terms  of  procedural  due  process").  At  oral  argument,  coun- 
sel for  Daniels  did  suggest  that  he  was  pursuing  a  substantive  due  process 
claim.  Tr.  of  Oral  Arg.  in  No.  84-5872,  p.  22.  However,  the  Court  of 
Appeals  viewed  Daniels'  claim  as  a  procedural  due  process  argument,  see 
748  F.  2d  229,  230,  n.  1  (CA4  1984)  ("There  is  no  claim  of  any  substantive 
due  process  violation"),  and  Daniels  did  not  dispute  this  characterization  in 
his  petition  for  certiorari  or  in  his  brief  on  the  merits. 

In  any  event,  to  the  extent  that  petitioners'  arguments  about  the  special 
obligations  of  prison  officials  may  be  read  as  a  substantive  due  process 
claim,  I  agree  with  the  Court,  ante,  at  335-336,  that  the  sheriff's  "special 
duty  of  care"  recognized  in  South  v.  Maryland,  18  How.  396  (1856),  does 
not  have  its  source  in  the  Federal  Constitution.  In  these  circumstances,  it 
seems  to  me,  the  substantive  constitutional  duties  of  prison  officials  to  pris- 
oners are  defined  by  the  Eighth  Amendment,  not  by  substantive  due  proc- 
ess. Cf.  United  States  ex  rel.  Miller  v.  Twomey,  479  F.  2d  701,  719-721 
(CA7  1973)  (analyzing  prison  officials'  responsibilities  to  prevent  inmate 
assaults  under  the  Eighth  Amendment),  cert,  denied  sub  nom.  Gutierrez 
v.  Department  of  Public  Safety  of  Illinois,  414  U.  S.  1146  (1974). 


DANIELS  v.  WILLIAMS  341 

327  STEVENS,  J.,  concurring  in  judgments 

tion"  and  excluding  negligence  from  its  scope.  No  serious 
question  has  been  raised  about  the  presence  of  "state  action" 
in  the  allegations  of  negligence,17  and  the  interest  in  freedom 
from  bodily  harm  surely  qualifies  as  an  interest  in  "liberty." 
Thus,  the  only  question  is  whether  negligence  by  state  actors 
can  result  in  a  deprivation.  "Deprivation,"  it  seems  to  me, 
identifies,  not  the  actor's  state  of  mind,  but  the  victim's 
infringement  or  loss.  The  harm  to  a  prisoner  is  the  same 
whether  a  pillow  is  left  on  a  stair  negligently,  recklessly,  or 
intentionally;  so  too,  the  harm  resulting  to  a  prisoner  from 
an  attack  is  the  same  whether  his  request  for  protection  is 
ignored  negligently,  recklessly,  or  deliberately.  In  each  in- 
stance, the  prisoner  is  losing— being  "deprived"  of— an  as- 
pect of  liberty  as  the  result,  in  part,  of  a  form  of  state  action. 

Thus,  I  would  characterize  each  loss  as  a  "deprivation"  of 
liberty.  Because  the  cases  raise  only  procedural  due  process 
claims,  however,  it  is  also  necessary  to  examine  the  nature  of 
petitioners'  challenges  to  the  state  procedures.  To  prevail, 
petitioners  must  demonstrate  that  the  state  procedures  for 
redressing  injuries  of  this  kind  are  constitutionally  inade- 
quate. Petitioners  must  show  that  they  contain  a  defect  so 
serious  that  we  can  characterize  the  procedures  as  funda- 
mentally unfair,  a  defect  so  basic  that  we  are  forced  to 
conclude  that  the  deprivation  occurred  without  due  process. 

Daniels'  claim  is  essentially  the  same  as  the  claim  we 
rejected  in  Parratt.  The  Court  of  Appeals  for  the  Fourth 
Circuit  determined  that  Daniels  had  a  remedy  for  the  claimed 
negligence  under  Virginia  law.  Although  Daniels  vigorously 
argues  that  sovereign  immunity  would  have  defeated  his 
claim,  the  Fourth  Circuit  found  to  the  contrary,  and  it  is  our 
settled  practice  to  defer  to  the  Courts  of  Appeals  on  ques- 


17  Respondents  in  Davidson  do  raise  a  state-action  objection  in  one  sen- 
tence, Brief  for  Respondents  in  No.  84-6470,  p.  13,  n.,  but  that  bare  refer- 
ence is  inadequate  to  mount  a  challenge  to  the  undisturbed  District  Court 
finding  of  state  action. 


342  OCTOBER  TERM,  1985 

STEVENS,  J.,  concurring  in  judgments  474  U.  S. 

tions  of  state  law.18    It  is  true  that  Parratt  involved  an  injury 
to  "property"  and  that  Daniels'  case  involves  an  injury  to  'lib- 
erty," but,  in  both  cases,  the  plaintiff  claimed  nothing  more 
than  a  "procedural  due  process"  violation.     In  both  cases,  a 
predeprivation  hearing  was  definitionally  impossible. 19    And, 
in  both  cases,  the  plaintiff  had  state  remedies  that  permitted 
recovery   if  state   negligence    was    established.       Thus,    a 
straightforward  application  of  Parratt  defeats  Daniels'  claim. 
Davidson's   claim   raises   a  question  not    specifically   ad- 
dressed in  Parratt.     According  to  the  Third  Circuit,  no  state 
remedy  was  available  because  a  New  Jersey  statute  prohibits 
prisoner  recovery  from  state  employees  for  injuries  inflicted 
by   other  prisoners.      Thus,   Davidson  puts   the   question 
whether  a  state  policy  of  noncompensability  for  certain  types 
of  harm,  in  which  state  action  may  play  a  role,  renders  a  state 
procedure  constitutionally  defective.      In  my  judgment,   a 
state  policy  that  defeats  recovery  does  not,  in  itself,  carry 
that  consequence.      Those  aspects  of  a  State's  tort  regime 
that  defeat  recovery  are  not  constitutionally  invalid,  so  long 
as  there  is  no  fundamental  unfairness  in  their  operation. 
Thus,  defenses  such  as  contributory  negligence  or  statutes  of 
limitations  may  defeat  recovery  in  particular  cases  without 
raising  any  question  about  the  constitutionality  of  a  State's 
procedures  for  disposing  of  tort  litigation.      Similarly,  in  my 
judgment,  the  mere  fact  that  a  State  elects  to  provide  some 
of  its  agents  with  a  sovereign  immunity  defense  in  certain 
cases  does  not  justify  the  conclusion  that  its  remedial  system 
is  constitutionally  inadequate.     There  is  no  reason  to  believe 
that  the  Due  Process  Clause  of  the  Fourteenth  Amendment 


18  See  Haring  v.  Prosise,  462  U.  S.  306,  314,  n.  8  (1983);  Leroy  v.  Great 
Western  United  Corp.,  443  U.  S.  173,  181,  n.  11  (1979);  Bishop  v.  Wood, 
426  U.  S.  341,  345-347  (1976);  Propper  v.  Clark,  337  U.  S.  472,  486-487 
(1949). 

19  It  borders  on  the  absurd  to  suggest  that  a  State  must  provide  a  hear- 
ing to  determine  whether  or  not  a  corrections  officer  should  engage  in  neg- 
ligent conduct. 


DANIELS  v.  WILLIAMS  343 

327  STEVENS,  J.,  concurring  in  judgments 

and  the  legislation  enacted  pursuant  to  §  5  of  that  Amend- 
ment should  be  construed  to  suggest  that  the  doctrine  of  sov- 
ereign immunity  renders  a  state  procedure  fundamentally 
unfair.20  Davidson's  challenge  has  been  only  to  the  fact  of 
sovereign  immunity;  he  has  not  challenged  the  difference  in 
treatment  of  a  prisoner  assaulted  by  a  prisoner  and  a  non- 
prisoner  assaulted  by  a  prisoner,  and  I  express  no  comment 
on  the  fairness  of  that  differentiation. 

Thus,  although  I  believe  that  the  harms  alleged  by  Daniels 
and  proved  by  Davidson  qualify  as  deprivations  of  liberty,  I 
am  not  persuaded  that  either  has  raised  a  violation  of  the  Due 
Process  Clause  of  the  Fourteenth  Amendment.  I  therefore 
concur  in  the  judgments. 


20  In  Martinez  v.  California,  444  U.  S.  277  (1980),  we  held  that  Califor- 
nia's immunity  statute  did  not  violate  the  Due  Process  Clause  simply  be- 
cause it  operated  to  defeat  a  tort  claim  arising  under  state  law.  The  fact 
that  an  immunity  statute  does  not  give  rise  to  a  procedural  due  process 
claim  does  not,  of  course,  mean  that  a  State's  doctrine  of  sovereign  immu- 
nity can  protect  conduct  that  violates  a  federal  constitutional  guarantee; 
obviously  it  cannot,  see  Martinez,  supra,  at  284,  n.  8,  quoting  Hampton  v. 
Chicago,  484  F.  2d  602,  607  (CA7  1973),  cert,  denied,  415  U.  S.  917  (1974). 


344  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

DAVIDSON  v.  CANNON  ET  AL. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  THIRD  CIRCUIT 

No.  84-6470.     Argued  November  6,  1985— Decided  January  21,  1986 

When  threatened  by  a  fellow  inmate  in  the  New  Jersey  State  Prison,  peti- 
tioner sent  a  note  reporting  the  incident  to  respondent  Assistant  Super- 
intendent of  the  prison,  who  read  the  note  and  sent  it  to  respondent  Cor- 
rections Sergeant,  who,  while  informed  of  its  contents,  did  not  read  it  or 
notify  other  officers  of  the  threat  and  forgot  about  it  by  the  time  he  went 
off  duty.  Two  days  later  the  inmate  attacked  petitioner  and  inflicted 
serious  injuries.  Petitioner  then  brought  a  damages  action  against  re- 
spondents in  Federal  District  Court  under  42  U.  S.  C.  §  1983,  claiming 
that  they  had  violated  his  rights  under,  inter  alia,  the  Fourteenth 
Amendment  by  negligently  failing  to  protect  him  from  the  other  inmate. 
After  a  bench  trial,  the  District  Court  awarded  damages,  holding  that 
petitioner  was  deprived  of  his  liberty  interest  in  personal  security  as  a 
result  of  respondents'  negligence  and  that  such  deprivation  was  without 
due  process  because  of  a  New  Jersey  statute  that  protects  prison  officials 
from  liability  for  injuries  caused  by  one  prisoner  to  another.  The  Court 
of  Appeals  reversed. 

Held:  The  protections  of  the  Due  Process  Clause  of  the  Fourteenth 
Amendment,  whether  procedural  or  substantive,  are  not  triggered  by 
lack  of  due  care  by  prison  officials.  Daniels  v.  Williams,  ante,  p.  327. 
Respondents'  lack  of  due  care,  while  leading  to  serious  injuries,  simply 
does  not  approach  the  sort  of  abusive  government  conduct  that  the  Due 
Process  Clause  was  designed  to  prevent.  Pp.  347-348. 
752  F.  2d  817,  affirmed. 

REHNQUIST,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER, 
C.  J.,  and  WHITE,  POWELL,  and  O'CONNOR,  JJ.,  joined.  STEVENS,  J., 
filed  an  opinion  concurring  in  the  judgment,  ante,  p.  336.  BRENNAN,  J., 
filed  a  dissenting  opinion,  post,  p.  349.  BLACKMUN,  J. ,  filed  a  dissenting 
opinion,  in  which  MARSHALL,  J.,  joined,  post,  p.  349. 

James  Douglas  Crawford  argued  the  cause  and  filed  a  brief 
for  petitioner. 

Madeleine  Waters  Mansier,  Deputy  Attorney  General  of 
New  Jersey,  argued  the  cause  for  respondents.  With  her  on 


DAVIDSON  u  CANNON  345 

344  Opinion  of  the  Court 

the  brief  were  Irwin  /.  Kimmelman,  Attorney  General,  and 
James  J.  Ciancia,  Assistant  Attorney  General. 

Acting  Solicitor  General  Fried  argued  the  cause  for  the 
United  States  as  amicus  curiae  urging  affirmance.  With 
him  on  the  brief  were  Acting  Assistant  Attorney  General 
Willard,  Deputy  Solicitor  General  Geller,  Barbara  L.  Her- 
wig,  and  Douglas  N.  Letter.* 

JUSTICE  REHNQUIST  delivered  the  opinion  of  the  Court. 

Petitioner  sued  prison  officials  seeking  damages  under  42 
U.  S.  C.  §  1983  for  injuries  he  suffered  when  they  negligently 
failed  to  protect  him  from  another  inmate.  On  December  19, 
1980,  petitioner  was  threatened  by  one  McMillian,  a  fellow 
inmate  at  the  New  Jersey  State  Prison  at  Leesburg.  Peti- 
tioner sent  a  note  reporting  the  incident  that  found  its  way 
to  respondent  Cannon,  the  Assistant  Superintendent  of  the 
prison,  who  read  the  note  and  sent  it  on  to  respondent  James, 
a  Corrections  Sergeant,  t  Cannon  subsequently  testified 
that  he  did  not  view  the  situation  as  urgent  because  on  previ- 
ous occasions  when  petitioner  had  a  serious  problem  he  had 
contacted  Cannon  directly. 

James  received  the  note  at  about  2  p.m.  on  December  19, 
and  was  informed  of  its  contents.  James  then  attended  to 
other  matters,  which  he  described  as  emergencies,  and  left 
the  note  on  his  desk  unread.  By  the  time  he  left  the  prison 
that  evening  James  had  forgotten  about  the  note,  and  since 

*Fred  E.  Inbau,  James  P.  Manak,  Wayne  W.  Schmidt,  Darnel  B. 
Hales,  and  Courtney  E,  Evans  filed  a  brief  for  Americans  for  Effective 
Law  Enforcement,  Inc. ,  et  al.  as  amici  curiae  urging  affirmance. 

tThe  note,  addressed  to  a  civilian  hearing  officer,  said: 

"When  I  went  back  to  the  unit  after  seeing  you  McMillian  was  on  the 
steps  outside  the  unit.  When  I  was  going  past  him  he  told  me  Til  fuck  you 
up  you  old  mother-fucking  fag/  Go  up  to  your  cell,  I  be  right  there. 

"I  ignored  this  and  went  to  another  person's  cell  and  thought  about  it. 
Then  I  figured  I  should  tell  you  so  'if  anything  develops  you  would  be 
aware. 

"I'm  quite  content  to  let  this  matter  drop  but  evidently  McMillian  isn't. 

"Thank  you,  R.  Davidson."     752  F.  2d  817,  819  (CAS  1984). 


346  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

neither  he  nor  Cannon  worked  on  December  20  or  21,  the  offi- 
cers on  duty  at  that  time  had  not  been  informed  of  the  threat. 
Petitioner  took  no  steps  other  than  writing  the  note  to  alert 
the  authorities  that  he  feared  an  attack,  nor  did  he  request 
protective  custody.     He  testified  that  he  did  not  foresee  an 
attack,  and  that  he  wrote  the  note  to  exonerate  himself  in  the 
event  that  McMillian  started  another  fight.     He  also  testified 
that  he  wanted  officials  to  reprimand  McMillian  in  order 
to  forestall  any  future  incident.     On  Sunday,  December  21, 
McMillian  attacked  petitioner  with  a  fork,  breaking  his  nose 
and  inflicting  other  wounds  to  his  face,  neck,  head,  and  body. 
Petitioner  brought  this  §  1983  suit  in  the  United  States  Dis- 
trict Court  for  the  District  of  New  Jersey,  claiming  that  re- 
spondents (and  two  others)  had  violated  his  constitutional 
rights   under   the    Eighth    and    Fourteenth    Amendments. 
After  a  bench  trial,  the  District  Court  held  that  petitioner 
had  not  established  an  Eighth  Amendment  violation  '^because 
[respondents!  did  not  act  with  deliberate  or  callous  indiffer- 
ence to  [petitioner's]  needs  and  because  the  incident  com- 
plained of  was  a  single  attack."     App.  89.     The  court  also 
found,  however,  that  respondents  "negligently  failed  to  take 
reasonable  steps  to  protect  [petitioner],   and  that  he  was 
injured  as  a  result."      Ibid.      Petitioner  was  thereby  de- 
prived, see  Parratt  v.  Taylor,  451  U.  S.  527,  536-537  (1981), 
of  his  liberty  interest  in  personal  security,  see  Ingrakam  v. 
Wright,  430  U.  S.  651,  673  (1977);  and  because  New  Jersey 
law  provides  that  "[n]either  a  public  entity  nor  a  public  em- 
ployee is  liable  for  .  .  .  any  injury  caused  by  ...  a  prisoner  to 
any  other  prisoner,"  N.  J.  Stat.  Ann.  §  59:5-2(b)(4)  (1982), 
the  court  concluded  that  the  deprivation  was  without  due 
process.     Petitioner  was  awarded  compensatory  damages  of 
$2,000. 

The  Court  of  Appeals  for  the  Third  Circuit,  hearing  the 
case  en  bane,  reversed.  752  F.  2d  817  (1984).  While  accept- 
ing the  District  Court's  conclusion  that  respondents  had  been 
negligent,  and  agreeing  that  the  attack  on  petitioner  impli- 


DAVIDSON  v.  CANNON  347 

344  Opinion  of  the  Court 

cated  a  recognized  liberty  interest,  the  majority  held  that 
respondents'  negligence  did  not  work  a  "deprivation"  of  that 
interest  within  the  meaning  of  the  Due  Process  Clause.  The 
court  conceded  that  language  in  Parratt  supported  .the  Dis- 
trict Court's  position  that  merely  negligent  conduct  causing 
injury  could  constitute  a  Fourteenth  Amendment  "depriva- 
tion," but  concluded  that  "Parratt  does  not  so  hold."  752  F. 
2d,  at  826.  Accordingly,  the  court  ruled  that  petitioner  had 
failed  to  make  out  a  violation  of  his  procedural  or  substantive 
due  process  rights,  stating  that  §  1983  provides  no  remedy 
"for  the  type  of  negligence  found  in  this  case."  Id.,  at  829. 

Two  judges  who  joined  the  majority  opinion  also  wrote 
separately  to  suggest  that  even  if  respondents'  negligence 
had  "deprived"  petitioner  of  liberty,  the  State's  decision  not 
to  provide  a  remedy,  in  view  of  its  strong  interest  in  protect- 
ing its  prison  officials  from  liability,  did  not  violate  due  proc- 
ess. Three  judges  dissented,  essentially  embracing  the  posi- 
tion of  the  District  Court. 

We  granted  certiorari,  471  U.  S.  1134  (1985),  and  set  this 
case  for  oral  argument  with  Daniels  v.  Williams,  ante, 
p.  327.  Finding  the  principles  enunciated  in  Daniels  con- 
trolling here,  we  affirm. 

In  Daniels,  we  held  that  the  Due  Process  Clause  of  the 
Fourteenth  Amendment  is  not  implicated  by  the  lack  of  due 
care  of  an  official  causing  unintended  injury  to  life,  liberty, 
or  property.  In  other  words,  where  a  government  official  is 
merely  negligent  in  causing  the  injury,  no  procedure  for  com- 
pensation is  constitutionally  required.  In  this  case,  peti- 
tioner does  not  challenge  the  District  Court's  finding  that  re- 
spondents "  'did  not  act  with  deliberate  or  callous  indifference 
to  [petitioner's]  needs,'"  752  F.  2d,  at  820.  Instead,  he 
claims  only  that  respondents  "negligently  failed  to  protect 
him  from  another  inmate."  Brief  for  Petitioner  2.  Daniels 
therefore  controls. 

Respondents'  lack  of  due  care  in  this  case  led  to  serious  in- 
jury, but  that  lack  of  care  simply  does  not  approach  the  sort 


348  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

of  abusive  government  conduct  that  the  Due  Process  Clause 
was  designed  to  prevent.     Daniels,  ante,  at  331-333.     Far 
from  abusing  governmental  power,  or  employing  it  as  an  in- 
strument of  oppression,  respondent  Cannon  mistakenly  be- 
lieved that  the  situation  was  not  particularly  serious,  and 
respondent  James  simply  forgot  about  the  note.     The  guar- 
antee of  due  process  has  never  been  understood  to  mean  that 
the  State  must  guarantee  due  care  on  the  part  of  its  officials. 
In  an  effort  to  limit  the  potentially  broad  sweep  of  his 
claim,  petitioner  emphasizes  that  he  "does  not  ask  this  Court 
to  read  the  Constitution  as  an  absolute  guarantor  of  his  lib- 
erty from  assault  by  a  fellow  prisoner,  even  if  that  assault  is 
caused  by  the  negligence  of  his  jailers."     Brief  for  Petitioner 
17.     Describing  his  claim  as  one  of  "procedural  due  process, 
pure  and  simple,"  id.,  at  14,  all  he  asks  is  that  New  Jersey 
provide  him  a  remedy.      But  the  Fourteenth  Amendment 
does  not  require  a  remedy  when  there  has  been  no  "depriva- 
tion" of  a  protected  interest.     Petitioner's  claim,  based  on  re- 
spondents' negligence,  is  quite  different  from  one  involving 
injuries  caused  by  an  unjustified  attack  by  prison  guards 
themselves,  see  Johnson  v.  Glick,  481  F.  2d  1028  (CA2), 
(Friendly,  J.),  cert,  denied  sub  nom.  John  v.  Johnson,  414 
U.  S.  1033  (1973),  or  by  another  prisoner  where  officials  sim- 
ply stood  by  and  permitted  the  attack  to  proceed,  see  Curtis 
v.  Everette,  489  F.  2d  516  (CA3  1973),  cert,  denied  sub  nom. 
Smith  v.  Curtis,  416  U.  S.  995  (1974).     As  we  held  in  Dan- 
iels, the  protections  of  the  Due  Process  Clause,   whether 
procedural  or  substantive,  are  just  not  triggered  by  lack 
of  due  care  by  prison  officials. 

Accordingly,  the  judgment  of  the  Court  of  Appeals  for  the 
Third  Circuit  is  affirmed. 

It  is  so  ordered. 

[For  opinion  of  JUSTICE  STEVENS  concurring  in  the  judg- 
ment, see  ante,  p.  336]. 


DAVIDSON  v.  CANNON  349 

344  BLACKMUN,  J.,  dissenting 

JUSTICE  BRENNAN,  dissenting. 

I  agree  with  the  Court  that  merely  negligent  conduct  by  a 
state  official,  even  though  causing  personal  injury,  does  not 
constitute  a  deprivation  of  liberty  under  the  Due  Process 
Clause.  I  do  believe,  however,  that  official  conduct  which 
causes  personal  injury  due  to  recklessness  or  deliberate  indif- 
ference, does  deprive  the  victim  of  liberty  within  the  mean- 
ing of  the  Fourteenth  Amendment. 

As  JUSTICE  BLACKMUN  persuasively  demonstrates  in  his 
dissent,  the  record  in  this  case  strongly  suggests  that  the 
prison  officials'  failure  to  protect  petitioner  from  attack 
was  reckless  and  not  merely  negligent.  Accordingly,  like 
JUSTICE  BLACKMUN,  I  would  vacate  the  judgment  and  re- 
mand this  case  so  that  the  Court  of  Appeals  may  review  the 
District  Court's  holding  that  respondents'  conduct  was  not 
reckless. 

JUSTICE  BLACKMUN,  with  whom  JUSTICE  MARSHALL 
joins,  dissenting. 

When  the  State  of  New  Jersey  put  Robert  Davidson  in  its 
prison,  it  stripped  him  of  all  means  of  self-protection.  It  for- 
bade his  access  to  a  weapon.  N.  J.  Dept.  of  Corrections 
Standards  251.4.a.201  and  .202.  It  forbade  his  fighting 
back.  Standards  25 1.4.  a.  002,  .003,  and  .004.  It  blocked  all 
avenues  of  escape.  The  State  forced  Davidson  to  rely  solely 
on  its  own  agents  for  protection.  When  threatened  with  vio- 
lence by  a  fellow  inmate,  Davidson  turned  to  the  prison  offi- 
cials for  protection,  but  they  ignored  his  plea  for  help.  As  a 
result,  Davidson  was  assaulted  by  another  inmate.  He  suf- 
fered stab  wounds  on  his  face  and  body  as  well  as  a  broken 
nose  that  required  surgery. 

The  Court  nevertheless  excuses  the  prison  officials  from 
liability  under  42  U.  S.  C.  §  1983,  holding  that  because  the 
officials  were  "merely  negligent  in  causing  the  injury"  there 
was  no  "deprivation"  of  liberty  without  due  process  of  law. 


350  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

Ante,  at  347.  It  relies  for  this  proposition  and  result  on 
the  easier  companion  case,  Daniels  v.  Williams,  ante,  p.  327, 
which  overrules  in  part  Parratt  v.  Taylor,  451  U.  S.  527 
(1981).  In  Daniels,  also  a  §  1983  suit,  the  Court  holds  that 
a  pretrial  detainee,  allegedly  injured  when  he  slipped  on 
a  pillow  negligently  left  on  the  jail  stairs  by  a  deputy,  as  a 
matter  of  law  suffered  no  deprivation  under  the  Fourteenth 
Amendment. 

While  I  concur  in  the  judgment  in  Daniels,  I  do  not  join  the 
Court  in  extending  that  result  to  this  case.  It  is  one  thing  to 
hold  that  a  commonplace  slip  and  fall,  or  the  loss  of  a  $23.50 
hobby  kit,  see  Parratt  v.  Taylor,  supra,  does  not  rise  to  the 
dignified  level  of  a  constitutional  violation.  It  is  a  somewhat 
different  thing  to  say  that  negligence  that  permits  antici- 
pated inmate  violence  resulting  in  injury,  or  perhaps  leads  to 
the  execution  of  the  wrong  prisoner,  does  not  implicate  the 
Constitution's  guarantee  of  due  process.  When  the  State  in- 
carcerated Daniels,  it  left  intact  his  own  faculties  for  avoiding 
a  slip  and  a  fall.  But  the  State  prevented  Davidson  from 
defending  himself,  and  therefore  assumed  some  responsibil- 
ity to  protect  him  from  the  dangers  to  which  he  was  exposed. 
In  these  circumstances,  I  feel  that  Davidson  was  deprived  of 
liberty  by  the  negligence  of  the  prison  officials.  Moreover, 
the  acts  of  the  state  officials  in  this  case  may  well  have  risen 
to  the  level  of  recklessness.  I  therefore  dissent. 


Davidson  broke  up  a  fight  between  two  other  inmates. 
Two  days  later,  on  Friday,  December  19,  1980,  the  three 
were  brought  before  a  prison  disciplinary  officer.  Only  one 
of  the  three,  Gibbs,  was  found  guilty  of  fighting.  When 
Davidson  and  the  other  inmate,  McMillian,  returned  to  their 
unit,  McMillian  threatened  Davidson.  Davidson  decided  to 
report  the  threat,  in  part  to  exonerate  himself  in  advance  but 
primarily  to  get  the  prison  officials  to  take  precautions. 
App.  85  (District  Court's  findings  of  fact).  See  also  id.,  at 


DAVIDSON  v.  CANNON  351 

344  BLACKMUN,  J.,  dissenting 

75.  Accordingly,  Davidson  reported  the  threat  to  Officer 
Garcia.  Because  McMillian  had  a  history  of  prison  assaults 
and  fighting,  id.,  at  33-34,  62,  Garcia  recognized  the  serious- 
ness of  McMillian's  threats.  Garcia  had  Davidson  relate  the 
incident  in  writing.  He  then  took  Davidson's  note,  and  told 
Davidson  to  return  to  his  unit. 

Garcia  delivered  the  note  to  respondent  Cannon,  Assistant 
Superintendent  of  the  prison,  and  described  its  contents. 
Cannon  did  not  think  the  threat  serious  because  Davidson 
had  not  personally  come  to  him  to  report  it  and  because  of  the 
nature  of  the  earlier  fight.  Id.,  at  44,  46.  Cannon  nonethe- 
less asked  to  speak  to  Davidson,  but  changed  his  mind  when 
he  learned  that  Davidson  had  already  returned  to  his  unit. 
Id. ,  at  42.  Rather  than  take  one  of  the  usual  preventive 
measures,  such  as  separating  the  two  inmates,  placing  David- 
son in  protective  custody,  or  attempting  to  ascertain  the 
gravity  of  the  threat  by  talking  to  the  two,  id. ,  at  44,  Cannon 
simply  told  Garcia  to  pass  the  note  along  to  respondent 
James,  a  Corrections  Sergeant  in  the  Internal  Affairs  Unit. 
Id.,  at  43. 

Garcia  followed  Cannon's  order,  giving  the  note  to  James 
at  approximately  2:15  p.m.,  and  informing  James  that  it  con- 
cerned a  threat  to  Davidson  by  McMillian.  Id.,  at  38-39. 
Because  James  was  not  ordered  to  act  immediately,  he  de- 
cided there  was  no  urgency.  James  also  decided  not  to  fol- 
low the  normal  procedure  of  interviewing  the  complainant. 
Id.,  at  50.  James  had  two  other  tasks  that  he  considered  to 
be  of  higher  priority,  id.,  at  61— paperwork  and  a  report  of  a 
knife  in  a  cell.  James  described  the  latter  as  an  emergency 
situation;  he  conceded,  however,  that  that  cell  had  been  dou- 
ble locked  so  that  it  was  secure.  Id.,  at  51.  James*  regular 
shift  ended  at  4  p.m. ,  but  he  worked  a  second  shift  that  night 
as  Assistant  Center  Keeper  until  10:30  p.m.  The  Center 
Keeper  ordinarily  investigates  threats  to  inmates,  but  again 
James  took  no  action  on  the  threat  to  Davidson.  Id.,  at 
54-55.  The  second  shift  was  "normal  and  routine."  Id.,  at 


352  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

59.  James  made  at  least  two  conscious  decisions  not  to  act 
on  the  note;  by  the  time  he  left  the  prison,  he  had  forgotten 
about  it.  Ibid.  Had  he  remembered,  he  would  have  noti- 
fied the  weekend  shift.  Id.,  at  59-60.  A  reported  threat 
would  not  normally  be  ignored  over  the  weekend.  Id. ,  at  50. 

Meanwhile,  the  prison  authorities  had  been  alerted  to  the 
potential  violence  through  another  channel.  On  Wednesday, 
December  17,  Officer  Gibson  wrote  a  "Special  Report"  stat- 
ing that  an  inmate  source  had  told  him  the  fight  involving 
Davidson  and  McMillian  was  "not  over  yet."  Gibson  recom- 
mended keeping  Davidson  and  Gibbs  in  the  detention  area 
for  their  own  protection.  Id.,  at  80.  This  recommendation 
was  apparently  ignored,  as  both  Davidson  and  McMillian 
remained  in  their  regular  unit. 

Neither  Cannon  nor  James  worked  during  the  weekend. 
Id.,  at  48.  On  Sunday,  December  21,  McMillian  attacked 
Davidson,  id.,  at  28,  inflicting  the  injuries  that  gave  rise  to 
this  suit. 

II 

The  Court  appears  to  recognize  that  the  injuries  to  David- 
son (as  well  as  that  to  Daniels  in  the  companion  case,  ante, 
p.  327)  implicates  the  "liberty"  protected  by  the  Fourteenth 
Amendment.  It  is  well  established  that  this  liberty  includes 
freedom  from  unjustified  intrusions  on  personal  security. 
Ingraham  v.  Wright,  430  U.  S.  651,  673-674  (1977).  In  par- 
ticular, it  includes  a  prisoner's  right  to  safe  conditions  and  to 
security  from  attack  by  other  inmates.  See  Youngberg  v. 
Romeo,  457  U.  S.  307,  315-316  (1982). 1  Before  a  State  can 


1  The  Court  in  Youngberg  v.  Romeo  held  that  an  infringement  of  an  insti- 
tutionalized mental  patient's  liberty  interest  in  safe  conditions  would  not 
violate  due  process  if  it  resulted  from  a  professionally  acceptable  judgment 
concerning  the  conditions  of  confinement.  The  essence  of  Davidson's  com- 
plaint, of  course,  is  that  the  judgments  made  by  respondents  were  not  ac- 
ceptable. Youngberg,  in  any  event,  is  factually  inapposite  here,  because 
Davidson— like  Daniels— does  not  challenge  the  general  conditions  of  his 
confinement. 


DAVIDSON  v.  CANNON  353 

344  BLACKMUN,  J.,  dissenting 

deprive  a  prisoner  of  the  liberty  he  retains  after  imprison- 
ment, it  must  afford  him  constitutionally  adequate  proce- 
dures. Vitek  v.  Jones,  445  U.  S.  480,  493-494  (1980). 

Although  Daniels'  and  Davidson's  liberty  interests  were 
infringed,  the  Court  holds  that  they  were  not  "deprived"  of 
liberty  in  the  constitutional  sense.  In  the  past,  we  have 
held  that  the  Fourteenth  Amendment  requires  a  "familiar 
two-stage  analysis:  We  must  first  ask  whether  the  asserted 
individual  interests  are  encompassed  within  the  Fourteenth 
Amendment's  protection  of  "life,  liberty  or  property.'" 
Ingraham  v.  Wright,  430  U.  S.,  at  672  (emphasis  added).  If 
so,  "we  then  must  decide  what  procedures  constitute  'due 
process  of  law/"  Ibid.  But  I  agree  with  the  Court  that  a 
deprivation  of  liberty  under  the  Fourteenth  Amendment  gen- 
erally requires  more  than  a  mere  infringement  of  a  liberty 
interest.  I  also  agree  that  the  purpose  of  the  Fourteenth 
Amendment's  Due  Process  Clause  should  guide  our  deter- 
mination of  what  actions  constitute  a  deprivation  of  liberty 
under  the  Clause.  A  deprivation  must  contain  some  element 
of  abuse  of  governmental  power,  for  the  "touchstone  of  due 
process  is  protection  of  the  individual  against  arbitrary  action 
of  government."  Wolff  v.  McDonnell,  418  U.  S.  539,  558 
(1974).  Finally,  I  agree  that  mere  negligent  activity  ordi- 
narily will  not  amount  to  an  abuse  of  state  power.  Where 
the  Court  today  errs,  in  my  view,  is  in  elevating  this  sensible 
rule  of  thumb  to  the  status  of  inflexible  constitutional  dogma. 
The  Court  declares  that  negligent  activity  can  never  impli- 
cate the  concerns  of  the  Due  Process  Clause.  I  see  no  justifi- 
cation for  this  rigid  view.  In  some  cases,  by  any  reasonable 
standard,  governmental  negligence  is  an  abuse  of  power.2 
This  is  one  of  those  cases. 


2  It  is  important  not  to  confuse  negligence  with  the  absence  of  deliberate 
action.  Negligent  acts  are  often  deliberate.  W.  Prosser,  D.  Dobbs, 
W.  Keeton,  &  D.  Owen,  Prosser  and  Keeton  on  Law  of  Torts  §  31,  p.  171 
(5th.  ed.  1984)  (Prosser);  see,  e.  g.,  The  Germanic,  196  U.  S.  589  (1905). 
Respondents  Cannon  and  James  did  not  act  inadvertently.  They  deliber- 


354  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

It  seems  to  me  that  when  a  State  assumes  sole  responsibil- 
ity for  one's  physical  security  and  then  ignores  his  call  for 
help,  the  State  cannot  claim  that  it  did  not  know  a  subsequent 
injury  was  likely  to  occur.  Under  such  circumstances,  the 
State  should  not  automatically  be  excused  from  responsibil- 
ity. In  the  context  of  prisons,  this  means  that  once  the  State 
has  taken  away  an  inmate's  means  of  protecting  himself  from 
attack  by  other  inmates,  a  prison  official's  negligence  in  pro- 
viding protection  can  amount  to  a  deprivation  of  the  inmate's 
liberty,  at  least  absent  extenuating  circumstances.3  Such 
conduct  by  state  officials  seems  to  me  to  be  the  "arbitrary 
action"  against  which  the  Due  Process  Clause  protects.  The 


ately  decided  that  the  threat  to  Davidson  was  not  serious.  Whether  con- 
duct is  denominated  negligent  or  intentional  can  be  a  function  of  the  likeli- 
hood that  harm  will  occur.  Where  occurrence  of  the  harm  is  substantially 
certain,  the  law  imputes  to  the  actor  an  intent  to  cause  it.  Restatement 
(Second)  of  Torts  §  8A,  Comment  6  (1965).  Where  harm  is  less  certain,  we 
may  call  the  actor  negligent.  Prosser,  supra,  at  170.  In  some  circum- 
stances, the  risk  of  injury  is  so  high  that  the  government's  failure  to  make 
efforts  to  avoid  the  injury  is  unacceptable,  even  if  its  omission  still  might 
be  categorized  as  negligence. 

*Estelle  v.  Gamble,  429  U.  S.  97,  106  (1976),  is  not  to  the  contrary.  In 
Estelle,  the  Court  held  that  a  valid  Eighth  Amendment  claim  based  on  a 
prison  physician's  diagnosis  or  treatment  required  an  allegation  of  delib- 
erate indifference  rather  than  one  of  mere  negligence.  The  requirement 
that  deliberate  indifference  or  wantonness  be  shown  flows  directly  from 
the  requirement  of  cruel  and  unusual  conduct.  The  type  of  conduct  about 
which  the  drafters  of  the  Eighth  Amendment  were  primarily  concerned  in- 
cluded "  'torture[s]'  and  other  *barbar[ous]'  methods  of  punishment"  (quota- 
tions and  citation  omitted).  Id.,  at  102.  As  is  shown  in  the  text,  infra, 
the  concerns  underlying  the  Due  Process  Clause  are  broader  than  those 
underlying  the  Eighth  Amendment. 

A  prison  is  not  the  only  setting  in  which  governmental  negligence  may 
amount  to  an  abuse  of  power.  If  police  officers  arrest  a  motorist  on  the 
freeway  and  leave  his  young  children  alone  in  the  car  by  the  side  of  the 
road  on  a  cold  night,  any  resulting  injury  to  the  children  might  well  consti- 
tute a  "deprivation"  within  the  meaning  of  the  Fourteenth  Amendment. 
Cf.  White  v.  Rochford,  592  F.  2d  381  (CA7  1979). 


DAVIDSON  v.  CANNON  355 

344  BLACKMUN,  J.,  dissenting 

officials'  actions  in  such  cases  thus  are  not  remote  from  the 
purpose  of  the  Due  Process  Clause  and  §  1983. 4 

Moreover,  this  case  does  not  raise  the  concern  noted  in 
Daniels,  ante,  at  332,  that  "[t]he  only  tie  between  the  facts 
.  .  .  and  anything  governmental  in  nature"  is  the  identity  of 
the  parties.  In  Daniels,  the  negligence  was  only  coinci- 
dentally  connected  to  an  inmate-guard  relationship;  the  same 
incident  could  have  occurred  on  any  staircase.  Daniels  in  jail 
was  as  able  as  he  would  have  been  anywhere  else  to  protect 
himself  against  a  pillow  on  the  stairs.  The  State  did  not  pro- 
hibit him  from  looking  where  he  was  going  or  from  taking 
care  to  avoid  the  pillow.6 

In  contrast,  where  the  State  renders  a  person  vulnerable 
and  strips  him  of  his  ability  to  defend  himself,  an  injury  that 
results  from  a  state  official's  negligence  in  performing  his 
duty  is  peculiarly  related  to  the  governmental  function. 
Negligence  in  such  a  case  implicates  the  "  '[m]isuse  of  power, 
possessed  by  virtue  of  state  law  and  made  possible  only  be- 
cause the  wrongdoer  is  clothed  with  the  authority  of  state 
law.'"  Monroe  v.  Pape,  365  U.  S.  167,  184  (1961),  quoting 
United  States  v.  Classic,  313  U.  S.  299,  326  (1941).  The  de- 
liberate decision  not  to  protect  Davidson  from  a  known  threat 


4  In  adopting  the  predecessor  of  §  1983,   Congress  sought  a  remedy 
"against  those  who  representing  a  State  in  some  capacity  were  unable  or 
unwilling  to  enforce  a  state  law."     Monroe  v.  Pape,  365  U.  S.  167,  176 
(1961)  (emphasis  in  original). 

5  While  negligence  of  prison  officials  can  constitute  a  due  process  viola- 
tion, general  conditions  of  confinement  do  not  ordinarily  give  rise  to  the 
increased  standard  of  care  discussed  above.     Prison  conditions  are  typi- 
cally part  of  the  State's  legitimate  restraint  of  liberty  as  a  function  of  pun- 
ishing convicted  persons.     See  Rhodes  v.  Chapman,  452  U.  S.  337  (1981). 
"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."    Bell  v.  Wolfish,  441  U.  S.  520,  537 
(1979).     See  also  Block  v.  Rutherford,  468  U.  S.  576  (1984). 


356  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

was  directly  related  to  the  often  violent  life  of  prisoners. 
And  protecting  inmates  from  attack  is  central  to  one  of  the 
State's  primary  missions  in  running  a  prison — the  mainte- 
nance of  internal  security.  See  Hudson  v.  Palmer,  468 
U.  S.  517,  524  (1984). 

The  Fourteenth  Amendment  is  not  "trivialized,"  see  Dan- 
iels, ante,  at  332,  by  recognizing  that  in  some  situations  neg- 
ligence can  lead  to  a  deprivation  of  liberty.  On  the  contrary, 
excusing  the  State's  failure  to  provide  reasonable  protection 
to  inmates  against  prison  violence  demeans  both  the  Four- 
teenth Amendment  and  individual  dignity.6 

Ill 

Even  were  I  to  accept  the  Court's  rigid  view  of  what  con- 
stitutes a  deprivation,  I  would  not  vote  to  affirm  the  judg- 
ment of  the  Court  of  Appeals.  Although  the  District  Court 
ruled  that  the  prison  officials'  conduct  here  was  not  reckless, 
there  is  substantial  reason  to  doubt  that  conclusion.  Since 
the  Court  of  Appeals  did  not  review  the  recklessness  holding, 
I  would  remand  the  case  for  that  review. 

The  Court  has  previously  indicated  that  prison  officials  act 
recklessly  when  they  disregard  the  potential  for  violence  be- 
tween a  known  violent  inmate  and  a  known  likely  victim.  In 
Smith  v.  Wade,  461  U.  S.  30  (1983),  the  Court  recognized 
that  a  prison  guard  had  acted  recklessly  in  placing  a  known 
violent  inmate  in  a  cell  shared  by  the  previously  victimized 
plaintiff  and  another  inmate,  without  attempting  to  locate 
an  empty  cell  nearby.  The  plaintiff,  who  had  recently  been 
removed  from  protective  custody,  was  assaulted  by  his  cell- 
mates. It  is  far  from  clear  that  the  officials  in  the  present 
case  were  any  less  reckless. 


6  The  Court's  notion  of  trivialization  is  especially  difficult  to  understand 
given  its  recognition  that  negligent  behavior  may  violate  other  constitu- 
tional provisions.  See  United  States  v.  Leon,  468  U.  S.  897,  919-923,  and 
n.  23  (1984)  (Fourth  Amendment). 


DAVIDSON  u  CANNON  357 

344  BLACKMUN,  J.,  dissenting 

Even  if  respondents'  conduct  ordinarily  would  be  consid- 
ered only  negligent,  the  forewarning  here  changes  the  con- 
stitutional complexion  of  the  case.  When  officials  have  actual 
notice  of  a  prisoner's  need  for  physical  protection,  "  'admin- 
istrative negligence  can  rise  to  the  level  of  deliberate  indif- 
ference to  or  reckless  disregard  for  that  prisoner's  safety.'" 
Layne  v.  Vinzant,  657  F.  2d  468,  471  (CAl  1981),  quoting 
West  v.  Rowe,  448  F.  Supp.  58,  60  (ND  111.  1978).  See  also 
Matzker  v.  Herr,  748  F.  2d  1142,  1149  (CA7  1984);  Miller 
v.  Soletn,  728  F.  2d  1020,  1024-1025  (CA8),  cert,  denied, 
469  U.  S.  841  (1984).  Cf.  Baker  v.  McCollan,  443  U.  S.  137, 
148  (1979)  (concurring  opinion)  (sheriff  who  failed  to  adopt 
procedures  for  identifying  arrestees  was  negligent  rather 
than  reckless  when  he  had  not  previously  been  notified  of  the 
legitimate  need  for  or  duty  to  adopt  such  procedures). 

Respondents  "had  the  responsibility  to  care  for  plaintiff's 
safety,  actual  notice  of  the  threat  by  an  inmate  with  a  known 
history  of  violence,  and  an  opportunity  to  prevent  harm  to 
plaintiff."  App.  89  (District  Court's  conclusions  of  law). 
Both  respondents  knew  that  McMillian  had  threatened  Da- 
vidson after  the  fight  and  that  Davidson  had  reported  the 
threat  immediately.  Although  Cannon  knew  that  McMillian 
was  a  troublemaker,  id.,  at  41,  he  nonetheless  chose  to  think 
that  the  situation  was  not  serious.  Id.,  at  42.  Likewise, 
James  decided  to  attend  to  other  matters  during  the  entire 
eight  hours  he  worked  after  receiving  the  note.  Id.,  at 
86-87.  Cannon  and  James  intentionally  delayed  protecting 
Davidson's  personal  security  in  the  face  of  a  real  and  known 
possibility  of  violence.  See  Form  v.  White,  762  F.  2d  635, 
636-638  (CAS  1985).  Cf.  Estelle  v.  Gamble,  429  U.  S.  97, 
104-105  (1976)  (intentional  delay  in  providing  necessary  med- 
ical care  to  seriously  ill  inmate  can  constitute  deliberate  indif- 
ference and  thus  violate  the  Eighth  Amendment).  Cannon 
did  not  check  on  what  James  had  found;  James  turned  his 
back  on  the  violence  brewing  for  the  weekend.  Yet  the  risk 


358  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

that  harm  would  occur  was  substantial  and  obvious.  Re- 
spondents' behavior  very  well  may  have  been  sufficiently 
irresponsible  to  constitute  reckless  disregard  of  Davidson's 
safety. 

Even  if  negligence  is  deemed  categorically  insufficient  to 
cause  a  deprivation  under  the  Fourteenth  Amendment,  reck- 
lessness must  be  sufficient.  Recklessness  or  deliberate  in- 
difference is  all  that  a  prisoner  need  prove  to  show  that  denial 
of  essential  medical  care  violated  the  Eighth  Amendment's 
ban  on  cruel  and  unusual  punishments.  See  Estelle  v.  Gam- 
ble, 429  U.  S.,  at  104.  The  Due  Process  Clause  provides 
broader  protection  than  does  the  Eighth  Amendment,  see, 
e.  g.,  Bell  v.  Wolfish,  441  U.  S.  520  (1979);  Ingraham  v. 
Wright,  430  U.  S.  651  (1977);  Wolff  v.  McDonnell,  418  U.  S., 
at  557-558;  Revere  v.  Massachusetts  General  Hospital,  463 
U.  S.  239,  244  (1983),  so  a  violation  of  the  Due  Process  Clause 
certainly  should  not  require  a  more  culpable  mental  state. 

IV 

The  deprivation  of  Davidson's  liberty  interest  violated  the 
Fourteenth  Amendment  if  it  occurred  "without  due  process 
of  law."  That  condition  is  clearly  satisfied.  In  both  Parratt 
and  Hudson,  the  Court  held  that  where  a  deprivation  of 
property  was  caused  by  a  random  and  unauthorized  act  of  a 
state  official,  it  was  impracticable  for  the  State  to  provide 
process  in  advance  and  the  State  could  satisfy  procedural  due 
process  by  a  meaningful  postdeprivation  remedy,  such  as  a 
tort  suit.  Parratt  v.  Taylor,  451  U.  S.,  at  541;  Hudson  v. 
Palmer,  468  U.  S.,  at  520-521.  Even  assuming  the  same  is 
true  for  deprivations  of  liberty,  New  Jersey  has  failed  to 
provide  a  meaningful  postdeprivation  remedy.  By  statute, 
the  State  has  ruled:  "Neither  a  public  entity  nor  a  public 
employee  is  liable  for .  .  .  any  injury  caused  by  ...  a  prisoner 
to  any  other  prisoner."  N.  J.  Stat.  Ann.  §  59:5-2(b)(4)  (West 
1982).  The  State  acknowledges  that  it  would  have  asserted 
the  immunity  statute  as  a  defense  to  a  state-court  action  and 


DAVIDSON  u  CANNON  359 

344  BLACKMUN,  J.,  dissenting 

that  Davidson's  complaint  would  have  been  dismissed  before 
being  heard  on  the  merits.  Brief  for  Respondents  34. 

Conduct  that  is  wrongful  under  §  1983  surely  cannot  be 
immunized  by  state  law.  A  State  can  define  defenses,  in- 
cluding immunities,  to  state-law  causes  of  action,  as  long 
as  the  state  rule  does  not  conflict  with  federal  law.  Ferri 
v.  Ackerman,  444  U.  S.  193,  198  (1979).  But  permitting  a 
state  immunity  defense  to  control  in  a  §  1983  action  "  'would 
transmute  a  basic  guarantee  into  an  illusory  promise;  and  the 
supremacy  clause  of  the  Constitution  insures  that  the  proper 
construction  may  be  enforced.'"  Martinez  v.  California, 
444  U.  S.  277,  284,  n.  8  (1980),  quoting  Hampton  v.  Chicago, 
484  F.  2d  602,  607  (CA7  1973),  cert,  denied,  415  U.  S.  917 
(1974).  It  is  irrelevant  that  state  immunity  as  applied  to 
defeat  a  state-law  tort  claim  is  constitutional,  and  may  be 
construed  as  one  aspect  of  the  State's  definition  of  a  tort 
claim.  See  444  U.  S.,  at  281-282,  and  n.  5.  Since  §1983 
was  designed  to  attack  the  misuse  of  state  power,  "govern- 
ment officials,  as  a  class,  could  not  be  totally  exempt,  by 
virtue  of  some  absolute  immunity,  from  liability  under  its 
terms."  Scheuer  v.  Rhodes,  416  U.  S.  232,  243  (1974). 

Strong  federal  interests  argue  for  allowing  Davidson  to 
bring  his  suit  in  the  face  of  the  New  Jersey  statute.  See 
Ferri  v.  Ackerman,  444  U.  S.,  at  198,  n.  13.  First,  "a  depri- 
vation of  a  constitutional  right  is  significantly  different  from 
and  more  serious  than  a  violation  of  a  state  right  and  there- 
fore deserves  a  different  remedy  even  though  the  same  act 
may  constitute  both  a  state  tort  and  the  deprivation  of  a  con- 
stitutional right."  Monroe  v.  Pape,  365  U.  S.,  at  196  (con- 
curring opinion).  Second,  the  legislative  history  of  §  1983's 
predecessor  makes  clear  that  Congress  intended  to  alter  the 
federal-state  relationship  with  respect  to  the  protection  of 
federal  rights.  "The  very  purpose  of  §  1983  was  to  interpose 
the  federal  courts  between  the  States  and  the  people,  as 
guardians  of  the  people's  federal  rights."  Mitchum  v.  Fos- 
ter, 407  U.  S.  225,  242  (1972).  In  particular,  Congress  in- 


360  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

tended  "to  provide  a  federal  remedy  where  the  state  remedy 
...  was  not  available  in  practice."  Monroe  v.  Pope,  365 
U.S.,  at  174. 

Davidson  has  been  denied  "'an  opportunity . . .  granted  at 
a  meaningful  time  and  in  a  meaningful  manner' , . .  'for  [a] 
hearing  appropriate  to  the  nature  of  the  case,'"  Logan  v, 
Zimm&rmn  Brush  Co.,  455  U.  S.  422, 437  (1982)  (citations 
omitted)  (emphasis  in  original).  Lacking  a  meaningful  post- 
deprivation  remedy  in  state  court,  Davidson  was  deprived  of 
his  liberty  without  due  process  of  law. 

I  therefore  would  reverse  the  judgment  of  the  Court  of 
Appeals  and  order  that  the  District  Court  award  of  $2,000 
be  reinstated.  If  I  agreed  with  the  rigid  rule  announced  in 
Ddflieto-which  I  do  not-I  would  vacate  the  judgment  and 
remand  the  case  for  review  of  the  District  Court's  finding 
that  the  respondents'  conduct  was  not  reckless. 


BOARD  OF  GOVERNORS,  FRS  u  DIMENSION  FINANCIAL     361 

Syllabus 

BOARD  OF  GOVERNORS  OF  THE  FEDERAL 

RESERVE  SYSTEM  v.  DIMENSION 

FINANCIAL  CORP.  ET  AL. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  TENTH  CIRCUIT 

No.  84-1274.     Argued  November  4,  1985 —Decided  January  22,  1986 

Section  2(c)  of  the  Bank  Holding  Company  Act  of  1956  defines  "bank"  as 
any  institution  "which  (1)  accepts  deposits  that  the  depositor  has  a  legal 
right  to  withdraw  on  demand,  and  (2)  engages  in  the  business  of  making 
commercial  loans."  In  response  to  the  increase  in  the  number  of  argu- 
ably uncovered  "nonbank  banks" — such  as  institutions  offering  custom- 
ers "NOW"  (negotiable  order  of  withdrawal)  accounts,  which  function 
like  traditional  checking  accounts  but  are  subject  to  a  seldom  exercised 
right  of  the  bank  to  require  prior  notice  of  withdrawal,  and  institutions 
offering  "commercial  loans  substitutes"  such  as  certificates  of  deposit 
and  commercial  paper — the  Federal  Reserve  Board  amended  its  "Regu- 
lation Y"  to  redefine  a  "bank"  as  any  institution  that  (1)  accepts  deposits 
that  "as  a  matter  of  practice"  are  payable  on  demand  and  (2)  engages 
in  the  business  of  making  "any  loan  other  than  a  loan  to  an  individual 
for  personal,  family,  household,  or  charitable  purposes,"  including  "the 
purchase  of  retail  installment  loans  or  commercial  paper,  certificates  of 
deposit,  bankers'  acceptances,  and  similar  money  market  instruments." 
In  consolidated  cases  challenging  the  amended  Regulation  Y,  the  Court 
of  Appeals  set  aside  the  regulation. 

Held:  The  Board  did  not  act  within  its  statutory  authority  in  defining 
"banks"  as  it  did.  Pp.  366-375. 

(a)  The  Board's  definition  of  "demand  deposit"  is  not  an  accurate  or 
reasonable  interpretation  of  §  2(c)  of  the  Act.     An  institution  that  offers 
NOW  accounts — even  if  it  engages  in  commercial  lending— is  not  a 
"bank"  for  the  purposes  of  the  Act  because  the  requirement  of  prior 
notice  of  withdrawal  withholds  from  the  depositor  any  "legal  right"  to 
withdraw  on  demand.      No  amount  of  agency  expertise  can  make  the 
words  "legal  right"  contained  in  §  2(c)  mean  a  right  to  do  something  "as 
a  matter  of  practice."     Pp.  367-368. 

(b)  Nor  is  the  Board's  definition  of  "commercial  loan"  a  reasonable 
interpretation  of  §2(c),  under  which  an  institution,  even  if  it  accepts 
deposits  that  the  depositor  has  a  legal  right  to  withdraw  on  demand,  is 
not  a  bank  unless  it  "engages  in  the  business  of  making  commercial 
loans."     The  term  "commercial  loan"  is  used  in  the  financial  community 


362  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

to  describe  the  direct  loan  from  a  bank  to  a  business  customer  for  the 
purpose  of  providing  funds  needed  by  the  customer  in  its  business. 
Money  market  transactions,  which  the  Board  characterizes  as  "commer- 
cial loan  substitutes,"  do  not  fall  within  the  commonly  accepted  definition 
of  "commercial  loans."    Nothing  in  the  statutory  language  or  the  legisla- 
tive history  indicates  that  the  term  "commercial  loan"  meant  anything 
different  from  its  accepted  ordinary  commercial  usage.      Pp.  368-373. 
(c)  The  Board's  new  definition  cannot  be  supported  on  the  asserted 
basis  that  it  falls  within  the  Act's  "plain  purpose"  of  regulating  in- 
stitutions "functionally  equivalent"  to  banks.      The  "plain  purpose"  of 
legislation  is  determined  in  the  first  instance  with  reference  to  the  plain 
language  of  the  statute  itself.      Here,  rather  than  defining  "bank"  as 
an  institution  that  offers  the  functional  equivalent  of  banking  services, 
Congress  defined  with  specificity  certain  transactions  that  constitute 
banking  subject  to  regulation.     The  statute  may  be  imperfect,  but  the 
Board  has  no  power  to  correct  flaws  that  it  perceives  in  the  statute  it  is 
empowered  to  administer.     Its  rulemaking  power  is  limited  to  adopting 
regulations  to  carry  into  effect  Congress1  will  as  expressed  in  the  stat- 
ute.    Pp.  373-375. 
744  F.  2d  1402,  affirmed. 

BURGER,  C.  J.,  delivered  the  opinion  of  the  Court,  in  which  all  other 
Members  joined,  except  WHITE,  J.,  who  took  no  part  in  the  consideration 
or  decision  of  the  case. 

Michael  Bradfield  argued  the  cause  for  petitioner.  With 
him  on  the  briefs  was  James  V.  Mattingly,  Jr. 

Jeffrey  S.  Davidson  argued  the  cause  for  respondents  Di- 
mension Financial  Corp.  et  al.  With  him  on  the  brief  were 
David  G.  Norrell,  Glenn  Summers,  and  William  L.  Mitchell. 
John  D.  Hawke,  Jr. ,  argued  the  cause  for  respondents  Amer- 
ican Financial  Services  Association  et  al.  With  him  on  the 
brief  were  Leonard  H.  Becker,  Douglas  L.  Wald,  and  Louis 
A.  Hellerstein.* 

*Briefs  of  amid  curiae  urging  reversal  were  filed  for  the  Conference  of 
State  Bank  Supervisors  et  al.  by  Erwin  N.  Griswold,  J.  Thomas  Cardwell, 
Laura  N.  Pringle,  and  James  F.  Bell;  and  for  the  Independent  Bankers 
Association  of  America  by  Leonard  J.  Rubin. 

Briefs  of  amid  curiae  urging  affirmance  were  filed  for  the  United  States 
by  Acting  Solicitor  General  Fried,  Acting  Assistant  Attorney  General 
Willard,  Deputy  Solicitor  General  Claiborne,  John  F.  Cordes,  Freddi 


BOARD  OF  GOVERNORS,  FRS  u  DIMENSION  FINANCIAL  363 
361  Opinion  of  the  Court 

CHIEF  JUSTICE  BURGER  delivered  the  opinion  of  the 
Court. 

We  granted  certiorari  to  decide  whether  the  Federal  Re- 
serve Board  acted  within  its  statutory  authority  in  defining 
"banks"  under  §  2(c)  of  the  Bank  Holding  Company  Act  of 
1956,  12  U.  S.  C.  §1841  et  seq.,  as  any  institution  that  (1) 
accepts  deposits  that  "as  a  matter  of  practice"  are  payable  on 
demand  and  (2)  engages  in  the  business  of  making  "any  loan 
other  than  a  loan  to  an  individual  for  personal,  family,  house- 
hold, or  charitable  purposes"  including  "the  purchase  of 
retail  installment  loans  or  commercial  paper,  certificates  of 
deposit,  bankers'  acceptances,  and  similar  money  market  in- 
struments." 12  CFR  §225.2(a)(l)  (1985). 


Section  2(c)  of  the  Bank  Holding  Company  Act  defines 
"bank"  as  any  institution  "which  (1)  accepts  deposits  that  the 
depositor  has  a  legal  right  to  withdraw  on  demand,  and  (2) 
engages  in  the  business  of  making  commercial  loans."  70 
Stat.  133,  as  amended,  12  U.  S.  C.  §  1841(c). 

This  case  is  about  so-called  "nonbank  banks" — institutions 
that  offer  services  similar  to  those  of  banks  but  which  until 
recently  were  not  under  Board  regulation  because  they  con- 
ducted their  business  so  as  to  place  themselves  arguably  out- 
side the  narrow  definition  of  "bank"  found  in  §  2(c)  of  the  Act. 
Many  nonbank  banks,  for  example,  offer  customers  NOW 
(negotiable  order  of  withdrawal)  accounts  which  function  like 
conventional  checking  accounts  but  because  of  prior  notice 
provisions  do  not  technically  give  the  depositor  a  "legal  right 
to  withdraw  on  demand."  12  U.  S.  C.  §  1841(c)(l).  Others 
offer  conventional  checking  accounts,  but  avoid  classification 
as  "banks"  by  limiting  their  extension  of  commercial  credit  to 

Lipstein,  and  Mary  Ann  Gadziala;  and  for  Sears,  Roebuck  and  Co.  et  al. 
by  Theodore  B.  Olson,  Philip  M.  Knox,  Jr.,  David  Shute,  and  Peter  J. 
Wallison. 


364  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.S. 

the  purchase  of  money  market  instruments  such  as  certifi- 
cates of  deposit  and  commercial  paper. 

In  1984,  the  Board  promulgated  rules  providing  that  non- 
bank  banks  offering  the  functional  equivalent  of  traditional 
banking  services  would  thereafter  be  regulated  as  banks.  49 
Fed.  Reg.  794.  The  Board  accomplished  this  by  amending 
its  definition  of  a  bank,  found  in  "Regulation  Y,"  in  two 
significant  respects.  First,  the  Board  defined  "demand  de- 
posit" to  include  deposits,  like  NOW  accounts,  which  are  "as 
a  matter  of  practice"  payable  on  demand.  12  CFR  §225.2 
(a)(l)(A)  (1985).  Second,  the  Board  defined  the  "making  of  a 
commercial  loan"  as  "any  loan  other  than  a  loan  to  an  indi- 
vidual for  personal,  family,  household,  or  charitable  pur- 
poses," including  "the  purchase  of  retail  installment  loans  or 
commercial  paper,  certificates  of  deposit,  bankers'  accep- 
tances, and  similar  money  market  instruments."  12  CFR 
§225.2(a)(l)(B)  (1985). 

B 

Cases  challenging  the  amended  Regulation  Y  were  com- 
menced in  three  Circuits  and  were  consolidated  in  the  United 
States  Court  of  Appeals  for  the  Tenth  Circuit.1  The  Court 
of  Appeals  set  aside  both  the  demand  deposit  and  commercial 
loan  aspects  of  the  Board's  regulation.  744  F.  2d  1402 
(1984).  The  court  did  not  discuss  the  demand  deposit  regula- 
tion in  detail,  relying  instead  on  the  holding  of  an  earlier 
Tenth  Circuit  case,  First  Bancorporation  v.  Board  of  Gover- 
nors, 728  F.  2d  434  (1984).  In  First  Bancorporation,  the 
court  noted  that  the  statutory  definition  of  demand  deposit  is 
a  deposit  giving  the  depositor  "a  legal  right  to  withdraw  on 
demand."  The  court  recognized  that  "withdrawals  from 
NOW  accounts  are  in  actual  practice  permitted  on  demand." 
Id.,  at  436.  But,  since  the  depository  institution  retains  a 
technical  prior  notice  requirement  it  does  not,  for  the  pur- 

1  Cases  filed  in  the  United  States  Courts  of  Appeal  for  the  Fourth 
and  Sixth  Circuits  were  transferred  to  the  Tenth  Circuit  pursuant  to  28 
U.  S.  C.  §2112(a). 


BOARD  OF  GOVERNORS,  FRS  v.  DIMENSION  FINANCIAL  365 
361  Opinion  of  the  Court 

poses  of  Congress*  definition  of  "bank,"  accept  "deposits  that 
the  depositor  has  a  legal  right  to  withdraw  on  demand. " 

The  Court  of  Appeals  also  concluded  that  the  Board's  new 
definition  of  "commercial  loan"  was  at  odds  with  the  Act. 
The  legislative  history  revealed  that  in  passing  §2(c)  Con- 
gress intended  to  exempt  from  Board  regulation  institutions 
whose  only  commercial  credit  activity  was  the  purchase  of 
money  market  instruments.  Although  agencies  must  be 
"able  to  change  to  meet  new  conditions  arising  within  their 
sphere  of  authority,"  any  expansion  of  agency  jurisdiction 
must  come  from  Congress  and  not  the  agency  itself.  744  F. 
2d,  at  1409.  Accordingly,  the  Court  of  Appeals  invalidated 
the  amended  regulations. 

We  granted  certiorari.  471  U.  S.  1064  (1985).  We 
affirm. 

II 

The  Bank  Holding  Company  Act  of  1956,  12  U.  S.  C.  §  1841 
et  seq.,  vests  broad  regulatory  authority  in  the  Board  over 
bank  holding  companies  "to  restrain  the  undue  concentration 
of  commercial  banking  resources  and  to  prevent  possible 
abuses  related  to  the  control  of  commercial  credit."  S.  Rep. 
No.  91-1084,  p.  24  (1970).  The  Act  authorizes  the  Board  to 
regulate  "any  company  which  has  control  over  any  bank." 
12  U.  S.  C.  §  1841(a)(l). 

The  breadth  of  that  regulatory  power  rests  on  the  Act's 
definition  of  the  word  "bank."  The  1956  Act  gave  a  simple 
and  broad  definition  of  bank:  "any  national  banking  associa- 
tion or  any  State  bank,  savings  bank,  or  trust  company."  12 
U.  S.  C.  §  1841(c)  (1964  ed.).  Experience  soon  proved  that 
literal  application  of  the  statute  had  the  unintended  conse- 
quence of  including  within  regulation  industrial  banks  offer- 
ing limited  checking  account  services  to  their  customers. 
These  institutions  accepted  "'funds  from  the  public  that  are, 
in  actual  practice,  repaid  on  demand/"  Amend  the  Bank 
Holding  Company  Act  of  1956:  Hearings  on  S.  2253,  S.  2418, 


366  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

and  H.  R.  7371  before  a  Subcommittee  of  the  Senate  Com- 
mittee on  Banking  and  Currency,  89th  Cong. ,  2d  Sess. ,  447 
(1966)  (letter  to  the  Committee  from  J.  L.  Robertson,  Mem- 
ber, Federal  Reserve  Board).  Although  including  these 
institutions  within  the  bank  definition  was  the  "correct  legal 
interpretation"  of  the  1956  statute,  the  Board  saw  "no  reason 
in  policy  to  cover  such  institutions  under  this  act."  Ibid. 
Congress  agreed,  and  accordingly  amended  the  statutory 
definition  of  a  bank  in  1966,  limiting  its  application  to  institu- 
tions that  accept  "deposits  that  the  depositor  has  a  legal  right 
to  withdraw  on  demand."2 

The  1966  definition  proved  unsatisfactory  because  it  too 
included  within  the  definition  of  "bank"  institutions  that  did 
not  pose  significant  dangers  to  the  banking  system.  Because 
one  of  the  primary  purposes  of  the  Act  was  to  "restrain 
undue  concentration  of ...  commercial  credit,"  it  made  little 
sense  to  regulate  institutions  that  did  not,  in  fact,  engage 
in  the  business  of  making  commercial  loans.  S.  Rep.  No. 
91-1084,  p.  24  (1970).  Congress  accordingly  amended  the 
definition,  excluding  all  institutions  that  did  not  "engag[e] 
in  the  business  of  making  commercial  loans."  Since  1970 
the  statute  has  provided  that  a  bank  is  any  institution  that 

"(1)  accepts  deposits  that  the  depositor  has  a  legal  right 
to  withdraw  on  demand,  and  (2)  engages  in  the  business 
of  making  commercial  loans."  12  U.  S.  C.  §  1841(c). 

Ill 

In  1984,  the  Board  initiated  rulemaking  to  respond  to  the 
increase  in  the  number  of  nonbank  banks.3  After  hearing 

2  The  Senate  Report  explained,  "the  bill  redefines  ^bank'  as  an  institu- 
tion that  accepts  deposits  payable  on  demand  (checking  accounts),  the  com- 
monly accepted  test  of  whether  an  institution  is  a  commercial  bank  so  as  to 
exclude  institutions  like  industrial  banks  and  nondeposit  trust  companies." 
S.  Rep.  No.  1179,  89th  Cong.,  2d  Sess.,  7  (1966). 

8  The  Board  explained  that  since  1980  a  large  number  of  insurance,  se- 
curities, industrial,  and  commercial  organizations  have  acquired  Federal 
Deposit  Insurance  Corporation  insured  financial  institutions  that  are  the 


BOARD  OF  GOVERNORS,  PRS  v.  DIMENSION  FINANCIAL  367 
361  Opinion  of  the  Court 

views  of  interested  parties,  the  Board  found  that  nonbank 
banks  pose  three  dangers  to  the  national  banking  system. 
First,  by  remaining  outside  the  reach  of  banking  regulations, 
nonbank  banks  have  a  significant  competitive  advantage  over 
regulated  banks  despite  the  functional  equivalence  of  the 
services  offered.  Second,  the  proliferation  of  nonbank  banks 
threatens  the  structure  established  by  Congress  for  limiting 
the  association  of  banking  and  commercial  enterprises.  See 
12  U.  S.  C.  §  1843(c)(8)  (bank  holding  company  can  purchase 
nonbanking  affiliate  only  if  entity  "closely  related  to  bank- 
ing"). Third,  the  interstate  acquisition  of  nonbank  banks 
undermines  the  statutory  proscription  on  interstate  banking 
without  prior  state  approval.  49  Fed.  Reg.  794,  835-836 
(1984).  Since  the  narrowed  statutory  definition  required 
that  both  the  demand  deposit  and  the  commercial  loan 
elements  be  present  to  constitute  the  institution  as  a  bank, 
the  Board  proceeded  to  amend  Regulation  Y  redefining  both 
elements  of  the  test.  We  turn  now  to  the  two  elements  of 
this  definition. 

A 

The  Board  amended  its  definition  of  "demand  deposit"  pri- 
marily to  include  within  its  regulatory  authority  institutions 
offering  NOW  accounts.  A  NOW  account  functions  like  a 
traditional  checking  account— the  depositor  can  write  checks 
that  are  payable  on  demand  at  the  depository  institution. 
The  depository  institution,  however,  retains  a  seldom  exer- 
cised but  nevertheless  absolute  right  to  require  prior  notice 
of  withdrawal.  Under  a  literal  reading  of  the  statute,  the 
institution— even  if  it  engages  in  full-scale  commercial  lend- 
ing—is not  a  "bank"  for  the  purposes  of  the  Holding  Com- 
pany Act  because  the  prior  notice  provision  withholds  from 
the  depositor  any  "legal  right"  to  withdraw  on  demand.  The 

functional  equivalent  of  banks.  The  Board  also  noted  that  the  power*  of 
previously  unregulated  industrial  banks  "have  substantially  expanded  .  .  . 
making  them  for  all  intents  and  purposes  banks"  for  the  purposes  of  the 
Bank  Holding  Company  Act.  49  Fed.  Reg.,  at  834 


368  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Board  in  its  amended  definition  closes  this  loophole  by  defin- 
ing demand  deposits  as  a  deposit,  not  that  the  depositor  has 
a  'legal  right  to  withdraw  on  demand,"  but  a  deposit  that 
"as  a  matter  of  practice  is  payable  on  demand." 

In  determining  whether  the  Board  was  empowered  to 
make  such  a  change,  we  begin,  of  course,  with  the  language 
of  the  statute.  If  the  statute  is  clear  and  unambiguous  "that 
is  the  end  of  the  matter,  for  the  court,  as  well  as  the  agency, 
must  give  effect  to  the  unambiguously  expressed  intent  of 
Congress."  Chevron  U.  S.  A.  Inc.  v.  Natural  Resources 
Defense  Council,  Inc.,  467  U.  S.  837,  842-843  (1984).  The 
traditional  deference  courts  pay  to  agency  interpretation  is 
not  to  be  applied  to  alter  the  clearly  expressed  intent  of 
Congress. 

Application  of  this  standard  to  the  Board's  interpretation 
of  the  "demand  deposit"  element  of  §  2(c)  does  not  require 
extended  analysis.     By  the  1966  amendments  to  §2(c),  Con- 
gress expressly  limited  the  Act  to  regulation  of  institutions 
that  accept  deposits  that  "the  depositor  has  a  legal  right  to 
withdraw  on  demand."     12  U.  S.  C.  §  1841(c).      The  Board 
would  now  define  "legal  right"  as  meaning  the  same  as  "a 
matter  of  practice."     But  no  amount  of  agency  expertise  — 
however  sound  may  be  the  result  —can  make  the  words  "legal 
right"  mean  a  right  to  do  something  "as  a  matter  of  practice." 
A  legal  right  to  withdraw  on  demand  means  just  that:  a  right 
to  withdraw  deposits  without  prior  notice  or  limitation.     In- 
stitutions offering  NOW  accounts  do  not  give  the  depositor  a 
legal  right  to  withdraw  on  demand;  rather,  the  institution  it- 
self retains  the  ultimate  legal  right  to  require  advance  notice 
of  withdrawal.     The  Board's  definition  of  "demand  deposit," 
therefore,  is  not  an  accurate  or  reasonable  interpretation 
of  §2(c). 

B 

Section  2(c)  of  the  Act  provides  that,  even  if  an  institution 
accepts  deposits  that  the  depositor  has  a  legal  right  to  with- 
draw on  demand,  the  institution  is  not  a  bank  unless  it  "en- 


BOARD  OF  GOVERNORS,  FRS  u  DIMENSION  FINANCIAL  369 
361  Opinion  of  the  Court 

gages  in  the  business  of  making  commercial  loans."  Under 
Regulation  Y,  "commercial  loan"  means  "any  loan  other  than 
a  loan  to  an  individual  for  personal,  family,  household,  or 
charitable  purposes,"  including  "the  purchase  of  retail  install- 
ment loans  or  commercial  paper,  certificates  of  deposit,  bank- 
ers' acceptances,  and  similar  money  market  instruments." 

The  purpose  of  the  amended  regulation  is  to  regulate  as 
banks  institutions  offering  "commercial  loan  substitutes," 
that  is,  extensions  of  credit  to  commercial  enterprises 
through  transactions  other  than  the  conventional  commercial 
loan.  In  its  implementing  order,  the  Board  explained  that 
"it  is  proper  to  include  these  instruments  within  the  scope  of 
the  term  commercial  loan  as  used  in  the  Act  in  order  to  carry 
out  the  Act's  basic  purposes:  to  maintain  the  impartiality  of 
banks  in  providing  credit  to  business,  to  prevent  conflicts  of 
interest,  and  to  avoid  concentration  of  control  of  credit."  49 
Fed.  Reg.,  at  841. 

As  the  Board's  characterization  of  these  transactions  as 
"commercial  loan  substitutes"  suggests,4  however,  money 
market  transactions  do  not  fall  within  the  commonly  accepted 
definition  of  "commercial  loans."  The  term  "commercial 
loan"  is  used  in  the  financial  community  to  describe  the  direct 
loan  from  a  bank  to  a  business  customer  for  the  purpose  of 
providing  funds  needed  by  the  customer  in  its  business.  The 
term  does  not  apply  to,  indeed  is  used  to  distinguish,  exten- 
sions of  credit  in  the  open  market  that  do  not  involve  close 
borrower-lender  relationships.  Cf.  G.  Munn  &  F.  Garcia, 
Encyclopedia  of  Banking  and  Finance  607  (1983).  These  lat- 
ter money  market  transactions  undoubtedly  involve  the  indi- 


4  The  Board  stated  in  its  implementing  order  that  "commercial  paper  is 
an  important  substitute  for  commercial  loans."  49  Fed.  Reg. ,  at  840,  n.  34. 
See  also  Citicorp,  69  Fed.  Res.  Bull.  921,  922  (1983)  ("[Commercial  loans 
include  such  commercial  loan  substitutes  as  the  purchase  of  commercial 
paper,  bankers  acceptances  and  certificates  of  deposit,  and  the  sale  of  fed- 
eral funds");  Hurley,  The  Commercial  Paper  Market,  63  Fed.  Res.  Bull.  525 
(1977)  ("[Commercial  paper  is  an  important  substitute  for  bank  credit"). 


370  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

rect  extension  of  credit  to  commercial  entities  but,  because 
they  do  not  entail  the  face-to-face  negotiation  of  credit  be- 
tween borrower  and  lender,  are  not  "commercial  loans." 

This  common  understanding  of  the  term  "commercial  loan" 
is  reflected  in  the  Board's  own  decisions.      Throughout  the 
1970's  the  Board  applied  the  term  "commercial  loan"  to  ex- 
clude from  regulation  institutions  engaging  in  money  market 
transactions.     For  example,  in  D.  H.  Baldwin  Co.,  63  Fed. 
Res.  Bull.  280  (1977),  the  Board  noted  that  although  savings 
and  loans  participated  in  the  federal  funds  market  and  issued 
certificates  of  deposit,  they  were  not  "technically  ^banks'  for 
the  purposes  of  the  Act"  because  they  did  not  make  commer- 
cial loans.     Id.,  at  286.     The  Board  recognized  that  savings 
and  loans  resembled  banks  but  concluded  that  "the  decision 
should  be  left  to  Congress  whether,  in  light  of  the  policies  un- 
derlying the  Bank  Holding  Company  Act,  such  'near-banks' 
should  be  treated  as  ^banks'  or  'nonbanks.'"      Id.,  at  287. 
See  also  American  Fletcher  Corp.,  60  Fed.  Res.  Bull.  868, 
869,  and  n.  8  (1974)  (savings  and  loans  participate  in  the  fed- 
eral funds  market  and  offer  certificates  of  deposit  but  may 
not  be  deemed  "banks"  within  the  meaning  of  the  Act).      In 
1976,  the  Board's  Legal  Division  found  that  broker  call  loans 
"do  not  appear  to  have  the  close  lender-borrower  relationship 
that  is  one  of  the  characteristics  of  commercial  loans."     Let- 
ter to  Michael  A.  Greenspan  from  Baldwin  P.  Tuttle,  Deputy 
General  Counsel,  pp.  2-3  (Jan.  26,  1976)  (App.  100A-101A). 
A  1981  internal  memorandum  summarized  the  Board's  long- 
standing interpretation  of  the  commercial  loan  definition: 

"The  Board  also  has  concluded  that,  although  commer- 
cial in  nature,  the  purchase  of  federal  funds,  money  mar- 
ket instruments  (certificates  of  deposit,  commercial 
paper,  and  bankers  acceptances)  are  not  considered  com- 
mercial loans  for  the  purposes  of  section  2(c)  of  the  Act, 
despite  the  fact  that  for  other  statutory  and  regulatory 
purposes  these  instruments  may  be  considered  commer- 


BOARD  OF  GOVERNORS,  FRS  u  DIMENSION  FINANCIAL  371 
361  Opinion  of  the  Court 

cial  loans."     Federal  Reserve  System,  Office  Correspon- 
dence (Feb.  10,  1981)  (App.  97A)  (emphasis  in  original).5 

The  Board  now  contends  that  the  new  definition  conforms 
with  the  original  intent  of  Congress  in  enacting  the  "commer- 
cial loan"  provision.  The  provision,  the  Board  argues,  was  a 
"technical  amendment  to  the  Act  designed  to  create  a  nar- 
rowly circumscribed  exclusion  from  the  Act's  coverage." 
Brief  for  Petitioner  41.  The  Board  supports  this  revisionist 
view  of  the  purpose  of  the  "commercial  loan"  provision  by  cit- 
ing a  comment  in  the  "legislative  history"  indicating  that  at 
the  time  the  provision  was  enacted,  it  operated  to  exclude 
only  one  institution,  the  Boston  Safe  Deposit  &  Trust  Co. 
The  Board  does  not  go  so  far  as  to  claim  that  the  commercial 
loan  amendment  was  a  private  bill,  designed  only  to  exempt 
Boston  Safe.  It  suggests,  however,  that  because  the  amend- 
ment was  prompted  by  the  circumstances  of  one  particular 
institution,  the  language  "commercial  loan"  should  be  given 
something  other  than  its  commonly  accepted  meaning. 

The  statute  by  its  terms,  however,  exempts  from  regula- 
tion all  institutions  that  do  not  engage  in  the  business  of  mak- 
ing commercial  loans.  The  choice  of  this  general  language 
demonstrates  that,  although  the  legislation  may  have  been 
prompted  by  the  needs  of  one  institution,  Congress  intended 
to  exempt  the  class  of  institutions  not  making  commercial 
loans.  Furthermore,  the  legislative  history  supports  this 
plain  reading  of  the  statute.  The  Senate  Report  explained: 

"The  definition  of  'bank'  adopted  by  Congress  in  1966 
was  designed  to  include  commercial  banks  and  exclude 
those  institutions  not  engaged  in  commercial  banking, 

6  The  Board  contends  that  these  decisions  "represented  a  willingness  by 
the  Board  to  refrain  from  applying  the  full  scope  of  the  Act  in  conditions 
that  did  not  appear  to  generate  the  potential  for  its  evasion."  49  Fed. 
Reg. ,  at  842.  But  the  decisions  themselves  make  no  mention  of  such  self- 
imposed  restraint.  Rather,  the  decisions  represented  the  Board's  inter- 
pretation of  the  meaning  of  the  statute  based  on  the  language  of  the  Act 
and  the  legislative  history  of  its  passage. 


372  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

since  the  purpose  of  the  act  was  to  restrain  undue  con- 
centration of  commercial  banking  resources  and  to  pre- 
vent possible  abuses  related  to  the  control  of  commercial 
credit.  However,  the  Federal  Reserve  Board  has  noted 
that  this  definition  may  be  too  broad  and  may  include  in- 
stitutions which  are  not  in  fact  engaged  in  the  business  of 
commercial  banking  in  that  they  do  not  make  commercial 
loans.  The  committee,  accordingly,  adopted  a  provision 
which  would  exclude  institutions  that  are  not  engaged  in 
the  business  of  making  commercial  loans  from  the  defini- 
tion of  'bank.'"  S.  Rep.  No.  91-1084,  p.  24  (1970). 

The  only  reference  to  Boston  Safe  is  in  a  lengthy  banking 
journal  article  that  Representative  Gonzalez  entered  into 
the  Congressional  Record.     See  116  Cong.  Rec.  25846,  25848 
(1970)  (indicating  that  Boston  Safe  was  "[v]irtually  the  only 
bank  that  does  no  commercial  lending").     Such  a  passage  is 
not  "legislative  history"  in  any  meaningful  sense  of  the  term 
and  cannot  defeat  the  plain  application  of  the  words  actually 
chosen  by  Congress  to  effectuate  its  will.      Finally,  even  if 
the  legislative  history  evidenced  a  congressional  intent  to  ex- 
clude only  Boston  Safe,  which  it  does  not,  the  Board's  expan- 
sive definition  of  "commercial  loan"  would  be  an  unreasonable 
interpretation  of  the  statute.     At  the  time  the  commercial 
loan  provision  was  enacted,  Boston  Safe  did  not  "make  com- 
mercial loans,"  but  did  purchase  money  market  instruments 
such  as  certificates  of  deposit  and  commercial  paper.     Rec- 
ognizing the  common  usage  of  the  term  "commercial  loan" 
and  the  purpose  of  the  1970  amendment,  the  Board  in  1972 
advised  Boston  Safe  that  it  was  not,  in  fact,  a  bank  for  the 
purposes  of  the  Bank  Holding  Company  Act: 

"The  Board  understands  that  Boston  Safe  purchases 
'money  market  instruments,'  such  as  certificates  of 
deposit,  commercial  paper,  and  bank  acceptances.  In 
the  circumstances  of  this  case,  such  transactions  are 
not  regarded  as  commercial  loans  for  the  purposes  of 
the  Act."  Letter  to  Lee  J.  Aubrey,  Vice  President, 


BOARD  OF  GOVERNORS,  FRS  v.  DIMENSION  FINANCIAL     373 
361  Opinion  of  the  Court 

Federal  Reserve  Bank  of  Boston,  from  Michael  A. 
Greenspan,  Assistant  Secretary,  Board  of  Governors, 
p.  2  (May  18,  1972)  (App.  94A). 

Nothing  in  the  statutory  language  or  the  legislative  history, 
therefore,  indicates  that  the  term  "commercial  loan"  meant 
anything  different  from  its  accepted  ordinary  commercial 
usage.  The  Board's  definition  of  "commercial  loan,"  there- 
fore, is  not  a  reasonable  interpretation  of  §2(c). 


Unable  to  support  its  new  definitions  on  the  plain  language 
of  §2(c),  the  Board  contends  that  its  new  definitions  fall 
within  the  "plain  purpose"  of  the  Bank  Holding  Company 
Act.  Nonbank  banks  must  be  subject  to  regulation,  the 
Board  insists,  because  "a  statute  must  be  read  with  a  view  to 
the  'policy  of  the  legislation  as  a  whole'  and  cannot  be  read  to 
negate  the  plain  purpose  of  the  legislation."  The  plain  pur- 
pose of  the  legislation,  the  Board  contends,  is  to  regulate  in- 
stitutions "functionally  equivalent"  to  banks.  Since  NOW 
accounts  are  the  functional  equivalent  of  a  deposit  in  which 
the  depositor  has  a  legal  right  to  withdraw  on  demand  and 
money  market  transactions  involve  the  extension  of  credit  to 
commercial  entities,  institutions  offering  such  services  should 
be  regulated  as  banks.6 

The  "plain  purpose"  of  legislation,  however,  is  determined 
in  the  first  instance  with  reference  to  the  plain  language  of 
the  statute  itself.  Richards  v.  United  States,  369  U.  S.  1,  9 
(1962).  Application  of  "broad  purposes"  of  legislation  at  the 
expense  of  specific  provisions  ignores  the  complexity  of  the 


6  In  a  related  argument,  the  Board  contends  that  it  has  the  power  to 
regulate  these  institutions  under  §  5(b),  which  provides  that  the  Board  may 
issue  regulations  "necessary  to  enable  it  to  administer  and  carry  out  the 
purposes  of  this  chapter  and  prevent  evasions  thereof."  12  U.  S.  C. 
§  1844(b).  But  §  5  only  permits  the  Board  to  police  within  the  boundaries 
of  the  Act;  it  does  not  permit  the  Board  to  expand  its  jurisdiction  beyond 
the  boundaries  established  by  Congress  in  §  2(c). 


374  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

problems  Congress  is  called  upon  to  address  and  the  dynam- 
ics of  legislative  action.  Congress  may  be  unanimous  in  its 
intent  to  stamp  out  some  vague  social  or  economic  evil;  how- 
ever, because  its  Members  may  differ  sharply  on  the  means 
for  effectuating  that  intent,  the  final  language  of  the  legisla- 
tion may  reflect  hard-fought  compromises.  Invocation  of  the 
"plain  purpose"  of  legislation  at  the  expense  of  the  terms  of 
the  statute  itself  takes  no  account  of  the  processes  of  compro- 
mise and,  in  the  end,  prevents  the  effectuation  of  congres- 
sional intent. 

Without  doubt  there  is  much  to  be  said  for  regulating 
financial  institutions  that  are  the  functional  equivalent  of 
banks.      NOW  accounts  have  much  in  common  with  tradi- 
tional payment-on-demand  checking  accounts;  indeed  we  rec- 
ognize that  they  generally  serve  the  same  purpose.     Rather 
than  defining  "bank"  as  an  institution  that  offers  the  func- 
tional equivalent  of  banking  services,  however,   Congress 
defined  with  specificity  certain  transactions  that  constitute 
banking  subject  to  regulation.     The  statute  may  be  imper- 
fect, but  the  Board  has  no  power  to  correct  flaws  that  it  per- 
ceives in  the  statute  it  is  empowered  to  administer.      Its 
rulemaking  power  is  limited  to  adopting  regulations  to  carry 
into  effect  the  will  of  Congress  as  expressed  in  the  statute.7 
If  the  Bank  Holding  Company  Act  falls  short  of  providing 
safeguards  desirable  or  necessary  to  protect  the  public  inter- 
est, that  is  a  problem  for  Congress,  and  not  the  Board  or  the 
courts,  to  address.     Numerous  proposals  for  legislative  re- 
form have  been  advanced  to  streamline  the  tremendously 
complex  area  of  financial  institution  regulation.      See,  e.  g., 

7  The  process  of  effectuating  congressional  intent  at  times  may  yield 
anomalies.  In  TVA  v.  Hill,  437  U.  S.  153  (1978),  for  example,  we  were 
confronted  with  the  explicit  language  of  a  statute  that  in  application  pro- 
duced a  curious  result.  Noting  that  nothing  prohibited  Congress  from 
passing  unwise  legislation,  we  upheld  the  enforcement  of  the  statute  as 
Congress  had  written  it.  Congress  swiftly  granted  relief  to  the  petitioner 
in  Hill;  but  it  did  so  in  a  fashion  that  could  not  have  been  tailored  by  the 
courts.  See  Pub.  L.  95-632,  §  5,  92  Stat.  3760. 


BOARD  OF  GOVERNORS,  FRS  ti  DIMENSION  FINANCIAL  375 
361  Opinion  of  the  Court 

Blueprint  for  Reform  Report  of  the  Task  Group  on  Regula- 
tion of  Financial  Services  (July  1984),  Our  present  inquiry, 
however,  must  come  to  rest  with  the  conclusion  that  the  ac- 
tion of  the  Board  in  this  case  is  inconsistent  with  the  language 
of  the  statute  for  here,  as  in  TVA  v,  fill,  431 U,  S,  153, 194 
(1978),  "[o]nce  the  meaning  of  an  enactment  is  discerned , , , 

the  judicial  process  comes  to  an  end," 

Ajmi 

JUSTICE  WHITE  took  no  part  in  the  consideration  or  deci- 
sion of  this  case, 


376  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

CABANA,   SUPERINTENDENT,   MISSISSIPPI   STATE 
PENITENTIARY,  ET  AL.  v.  BULLOCK 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  FIFTH  CIRCUIT 

No.  84-1236.     Argued  November  5,  1985— Decided  January  22,  1986 

After  respondent  and  his  friend  Tucker  accepted  Dickson's  offer  of  a  ride 
home,  a  fight  developed  between  Tucker  and  Dickson,  and  Dickson 
stopped  the  car.      Respondent  held  Dickson's  head  as  Tucker  struck 
Dickson  in  the  face  with  a  whiskey  bottle.      Tucker  then  pummeled 
Dickson  with  his  fists  until  Dickson  fell  to  the  ground  and  lay  helpless,  at 
which  point  Tucker  killed  him  by  smashing  his  skull  with  a  concrete 
block.     Respondent  and  Tucker  disposed  of  the  body,  and  respondent 
kept  Dickson's  car  for  himself.     Respondent  was  arrested  the  next  day 
and  was  charged  with  capital  murder  under  a  Mississippi  statute.     The 
jury  found  him  guilty  and,  following  a  separate  sentencing  hearing,  sen- 
tenced him  to  death.     The  Mississippi  Supreme  Court  affirmed,  finding 
that  the  capital  murder  verdict  and  death  sentence  were  sustainable 
under  a  Mississippi  law  making  an  accomplice  equally  responsible  with 
the  principal  offender.    After  exhausting  state  postconviction  remedies, 
respondent  filed  a  petition  for  a  writ  of  habeas  corpus  in  Federal  District 
Court,  which  denied  the  writ.     The  Court  of  Appeals  reversed  on  the 
ground  that  respondent's  death  sentence  was  invalid  under  the  interven- 
ing decision  in  Enmund  v.  Florida,  458  U.  S.   782,  that  the  Eighth 
Amendment  forbids  the  imposition  of  the  death  penalty  on  "one  .  .  .  who 
aids  and  abets  a  felony  in  the  course  of  which  a  murder  is  committed  by 
others  but  who  does  not  himself  kill,  attempt  to  kill,  or  intend  that  a  kill- 
ing take  place  or  that  lethal  force  will  be  employed."     Id.,  at  797.     The 
court  based  its  conclusion  solely  upon  its  reading  of  the  jury  instructions 
at  respondent's  state  trial,  reasoning  that  under  those  instructions  the 
jury  may  well  have  found  respondent  guilty  and  sentenced  him  to  death 
despite  concluding  that  he  had  neither  killed  nor  intended  to  kill  or  with- 
out ever  coming  to  any  conclusion  on  those  questions.     Accordingly,  the 
court  granted  a  writ  of  habeas  corpus  and  vacated  respondent's  death 
sentence  but  permitted  the  State,  at  its  option,  to  impose  a  life  sentence 
or  conduct  a  new  sentencing  hearing  at  which,  with  the  proper  findings, 
a  death  sentence  could  be  reimposed. 


CABANA  v.  BULLOCK  377 

376  Syllabus 

Held: 

1.  The  Court  of  Appeals  was  correct  in  concluding  that  neither  the 
jury's  verdict  of  guilt  nor  its  imposition  of  the  death  sentence  necessarily 
reflected  a  finding  that  respondent  killed,  attempted  to  kill,  or  intended 
to  kill.     Pp.  383-384. 

2.  But  the  Court  of  Appeals  erred  in  focusing  exclusively  on  the  jury 
and  in  ordering  a  new  sentencing  hearing  without  inquiring  whether  the 
necessary  finding  of  intent  had  been  made  by  the  state  trial  court  or  ap- 
pellate court.     The  Enmund  rule  need  not  be  enforced  by  the  jury  and 
does  not  impose  any  particular  form  of  procedure  upon  the  States.     At 
what  point  in  its  criminal  process  a  State  chooses  to  make  the  Enmund 
determination  is  of  little  concern  from  the  standpoint  of  the  Constitution. 
Accordingly,  when  a  federal  habeas  corpus  court  reviews  an  Enmund 
claim,  its  inquiry  cannot  be  limited  to  an  examination  of  jury  instruc- 
tions.    Rather,  the  court  must  examine  the  entire  course  of  the  state 
proceedings  in  order  to  determine  whether,  at  some  point,  the  requisite 
factual  finding  as  to  the  defendant's  culpability  has  been  made.     If  it  has, 
the  finding  must  be  presumed  correct  by  virtue  of  28  U.  S.  C.  §2254(d), 
and  unless  the  habeas  petitioner  can  bear  the  burden  of  overcoming  the 
presumption,  the  court  must  hold  that  the  Eighth  Amendment  as  inter- 
preted in  Enmund  is  not  offended  by  the  death  sentence.     Pp.  384-388. 

3.  The  Mississippi  Supreme  Court's  finding  was  insufficient  to  satisfy 
Enmund,  for  Enmund  holds  that  the  Eighth  Amendment  does  more 
than  require  that  a  death-sentenced  defendant  be  legally  responsible  for 
a  killing  as  a  matter  of  state  law;  it  requires  that  he  himself  have  actually 
killed,  attempted  to  kill,  or  intended  that  a  killing  take  place  or  that 
lethal  force  be  used.     Pp.  389-390. 

4.  The  proper  course  for  a  federal  court  faced  with  a  habeas  corpus 
petition  raising  an  Enmund  claim  when  the  state  courts  have  failed  to 
make  any  finding  regarding  the  Enmund  criteria  is  to  take  steps  to 
require  the  State's  own  judicial  system  to  make  the  factual  findings  in 
the  first  instance.     Therefore,  it  is  Mississippi,  not  the  federal  habeas 
corpus  court,  that  should  first  provide  respondent  with  a  reliable  deter- 
mination as  to  whether  he  killed,  attempted  to  kill,  or  intended  that  a 
killing  take  place  or  that  lethal  force  be  used.     Pp.  390-391. 

5.  Here,  the  District  Court  should  be  directed  to  issue  the  habeas  cor- 
pus writ  vacating  respondent's  death  sentence  but  to  leave  to  the  State 
the  choice  of  either  imposing  a  sentence  of  life  imprisonment  or  reimpos- 
ing  the  death  sentence  after  obtaining  a  determination  from  its  own 
courts  of  the  factual  question  whether  respondent  killed,  attempted  to 


378  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

kill,  intended  to  kill,   or  intended  that  lethal  force  would  be  used. 
P.  392. 
743  F.  2d  244,  modified  and  remanded. 

WHITE,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER,  C.  J., 
and  POWELL,  REHNQUIST,  and  O'CONNOR,  JJ.,  joined.  BURGER,  C.  J., 
filed  a  concurring  opinion,  post,  p.  392.  BRENNAN,  J.,  filed  a  dissenting 
opinion,  post,  p.  393.  BLACKMUN,  J.,  filed  a  dissenting  opinion,  in  which 
BRENNAN  and  MARSHALL,  JJ.,  joined,  post,  p.  394.  STEVENS,  J.,  filed  a 
dissenting  opinion,  hi  which  BRENNAN,  J.,  joined,  post,  p.  407. 

Marvin  L.  White,  Jr. ,  Special  Assistant  Attorney  General 
of  Mississippi,  argued  the  cause  for  petitioners.  With  him 
on  the  brief  were  Edwin  Lloyd  Pittman,  Attorney  General, 
Amy  D.  Whitten,  Special  Assistant  Attorney  General,  and 
William  S.  Boyd  III. 

Joseph  T.  McLaughlin  argued  the  cause  for  respondent. 
With  him  on  the  briefs  were  Henry  Weisburg  and  Daniel 
Levin.* 

JUSTICE  WHITE  delivered  the  opinion  of  the  Court. 

In  Enmund  v.  Florida,  458  U.  S.  782  (1982),  we  ruled  that 
the  Eighth  Amendment  forbids  the  imposition  of  the  death 
penalty  on  "one  .  .  .  who  aids  and  abets  a  felony  in  the  course 
of  which  a  murder  is  committed  by  others  but  who  does  not 
himself  Mil,  attempt  to  kill,  or  intend  that  a  killing  take  place 
or  that  lethal  force  will  be  employed."  Id.,  at  797.  This 
case  requires  us  to  determine  in  whose  hands  the  decision 
that  a  defendant  possesses  the  requisite  degree  of  culpability 
properly  lies. 

* Michael  J.  Bowers,  Attorney  General  of  Georgia,  Marion  O.  Gordon, 
First  Assistant  Attorney  General,  William  B.  Hill,  Jr. ,  Senior  Assistant 
Attorney  General,  Mary  Beth  Westmoreland,  Assistant  Attorney  General, 
Jim  Smith,  Attorney  General  of  Florida,  Linley  E.  Pearson,  Attorney 
General  of  Indiana,  and  Archie  G.  McClintock,  Attorney  General  of  Wyo- 
ming, filed  a  brief  for  the  State  of  Georgia  et  al.  as  amid  curiae  urging 
reversal. 

Robert  Glass  and  Timothy  K.  Ford  filed  a  brief  for  the  National  Associa- 
tion of  Criminal  Lawyers  as  amicus  curiae. 


CABANA  v.  BULLOCK  379 

376  Opinion  of  the  Court 


Early  in  the  morning  of  September  22,  1978,  respondent 
Crawford  Bullock  and  his  friend  Ricky  Tucker  accepted  Mark 
Dickson's  offer  of  a  ride  home  from  a  bar  in  Jackson,  Missis- 
sippi. During  the  course  of  the  ride,  Tucker  and  Dickson 
began  to  argue  about  some  money  Dickson  supposedly  owed 
Tucker.  The  argument  became  a  fight:  Dickson  stopped  the 
car,  and  Dickson  and  Tucker  exchanged  blows.  Bullock  at- 
tempted to  grab  Dickson,  but  Dickson  eluded  his  grasp  and 
fled  from  the  car.  Tucker  gave  chase  and  succeeded  in  tack- 
ling Dickson,  while  Bullock,  who  had  a  cast  on  his  leg,  fol- 
lowed more  slowly.  When  Bullock  caught  up  with  the  strug- 
gling men,  he  held  Dickson's  head  as  Tucker  struck  Dickson 
in  the  face  with  a  whiskey  bottle.  Tucker  then  pummeled 
Dickson  with  his  fists  until  Dickson  fell  to  the  ground.  As 
Dickson  lay  helpless,  Tucker  killed  him  by  smashing  his  skull 
with  repeated  blows  from  a  concrete  block.  Bullock  and 
Tucker  together  disposed  of  Dickson's  body,  and  Bullock  kept 
Dickson's  car  for  himself.  Bullock  was  arrested  the  next  day 
when  police  spotted  him  driving  the  car.  Under  questioning 
at  the  police  station,  he  confessed  to  his  participation  in  the 
course  of  events  just  described. 

Bullock  was  charged  with  capital  murder  under  a  Missis- 
sippi statute  that  provided  that  "[t]he  killing  of  a  human 
being  without  the  authority  of  law  by  any  means  or  in  any 
manner  shall  be  capital  murder  .  .  .  [w]hen  done  with  or 
without  any  design  to  effect  death,  by  any  person  engaged  in 
the  commission  of  the  crime  of  ...  robbery  ...  or  in  any  at- 
tempt to  commit  such."  Miss.  Code  Ann.  § 97-3-19(2)(e) 
(Supp.  1985).  Under  Mississippi  law,  a  participant  in  a  rob- 
bery could  be  convicted  of  capital  murder  under  the  statute 
for  a  murder  committed  in  the  course  of  the  robbery  by  an 
accomplice  notwithstanding  the  defendant's  own  lack  of  in- 
tent that  any  killing  take  place,  for  "[i]t  is  ...  familiar  law 
that  when  two  or  more  persons  act  in  concert,  with  a  common 
design,  in  committing  a  crime  of  violence  upon  others,  and  a 


380  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

homicide  committed  by  one  of  them  is  incident  to  the  execu- 
tion of  the  common  design,  both  are  criminally  liable  for  the 
homicide."  Price  v.  State,  362  So.  2d  204,  205  (Miss.  1978). 
In  accordance  with  this  doctrine  of  accomplice  liability,  the 
court  instructed  the  jury  at  the  conclusion  of  the  guilt  phase 
of  Bullock's  trial  as  follows: 

"The  Court  instructs  the  Jury  that  if  you  believe  from 
the  evidence  in  this  case,  beyond  a  reasonable  doubt  that 
on  September  21,  1978,  in  the  First  Judicial  District  of 
Hinds  County,  Mississippi,  Crawford  Bullock,  Jr.,  was 
present,  consented  to,  and  encouraged  the  commission  of 
a  crime  and  thereby  aided  another  individual,  and  that 
he,  the  said  Crawford  Bullock,  Jr.,  or  the  other,  then 
and  there  did  wilfully,  unlawfully  and  feloniously  take 
and  carry  away  the  personal  property  of  another  from 
the  presence  of  Mark  Dickson,   and  from  his  person, 
against  his  will,  by  violence  to  his  person,  to-wit  [sic]\ 
his  billfold  or  one  1978  Thunderbird  automobile  then  in 
his  possession,  then  and  in  that  event,  the  Defendant, 
Crawford  Bullock,  Jr.  is  guilty  of  robbery  as  if  he  had 
with  his  own  hands  committed  the  whole  offense;  and,  if 
the  Jury  further  finds  from  the  evidence  in  this  case,  be- 
yond a  reasonable  doubt,  that  on  said  date  aforesaid, 
while  engaged  in  the  commission  of  the  aforesaid  rob- 
bery, if  any,  that  the  said  Crawford  Bullock,  Jr.,  did 
alone,   or  while  acting  in  consert  [sic]  with  another, 
while  present  at  said  time  and  place  by  consenting  to  the 
killing  of  the  said,   Mark  Dickson,   and  that  the   said 
Crawford  Bullock,  Jr.,  did  any  overt  act  which  was  im- 
mediately connected  with  or  leading  to  its  commission, 
without  authority  of  law,  and  not  in  necessary  self  de- 
fense, by  any  means,  in  any  manner,  whether  done  with 
or  without  any  design  to  effect  the  death  of  the  said 
Mark  Dickson,  that  the[n],  and  in  that  event,  the  said 
Crawford  Bullock,   Jr.,   is  guilty   of  capital   murder." 
App.  87-89. 


CABANA  v.  BULLOCK  381 

376  Opinion  of  the  Court 

The  jury  found  Bullock  guilty  of  capital  murder.  Follow- 
ing a  separate  sentencing  hearing,  the  jury  found  that  two 
statutory  aggravating  circumstances  were  present  and  that 
they  were  not  outweighed  by  any  mitigating  circumstances. 
Accordingly,  the  jury  sentenced  Bullock  to  death. 

On  appeal  to  the  Mississippi  Supreme  Court,  Bullock  ar- 
gued, inter  alia,  that  the  evidence  was  insufficient  as  a  mat- 
ter of  law  to  allow  submission  of  the  capital  murder  charge  to 
the  jury  and  that  the  imposition  of  the  death  penalty  on  him 
would  be  so  disproportionate  to  his  level  of  involvement  in 
the  crime  as  to  violate  the  Eighth  Amendment.  The  court 
rejected  both  contentions.  Bullock  v.  State,  391  So.  2d  601 
(1980),  cert,  denied,  452  U.  S.  931  (1981).  The  court  ruled 
that  the  verdict  of  capital  murder  was  sustainable  in  view  of 
the  "overwhelming"  evidence  "that  [Bullock]  was  present, 
aiding  and  assisting  in  the  assault  upon,  and  slaying  of, 
Dickson  .  .  .  and  in  the  taking  of  the  T-bird  automobile, 
which  was  in  the  lawful  possession  and  use  of  Dickson."  391 
So.  2d,  at  606.  With  respect  to  Bullock's  claim  that  the 
punishment  of  death  was  disproportionate  to  his  degree  of 
culpability,  the  court  noted  that  "[t]he  law  is  well  settled  in 
this  state  that  any  person  who  is  present,  aiding  and  abetting 
another  in  the  commission  of  a  crime,  is  equally  guilty  with 
the  principal  offender. "  Because  Bullock  was  "an  active  par- 
ticipant in  the  assault  and  homicide  committed  upon  Mark 
Dickson,"  the  court  concluded  that  the  punishment  was  not 
disproportionate  to  his  guilt.  Id.,  at  614. 

After  exhausting  state  postconviction  remedies,  Bullock 
filed  a  petition  for  writ  of  habeas  corpus  in  the  United  States 
District  Court  for  the  Southern  District  of  Mississippi.  The 
District  Court  denied  the  writ,  but  the  Court  of  Appeals  for 
the  Fifth  Circuit  reversed  on  the  ground  that  Bullock's  death 
sentence  was  invalid  under  our  decision  in  Enmund,  which 
was  handed  down  during  the  pendency  of  the  District  Court 
proceedings.  Bullock  v.  Lucas,  743  F.  2d  244  (1984).  The 


382  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

court  based  this  conclusion  solely  upon  its  reading  of  the  jury 
instructions  given  at  Bullock's  trial.      The  court  reasoned 
that  under  the  instructions  offered  at  the  guilt  phase  and 
quoted  in  pertinent  part  above,  the  jury  could  have  found 
Bullock  guilty  of  capital  murder  solely  on  the  basis  of  his  par- 
ticipation in  a  robbery  in  which  he  had  aided  and  abetted 
someone  else  who  had  killed:  the  instructions  did  not  require 
a  finding  of  any  intent  to  kill  on  Bullock's  part,  nor  did  they 
require  the  jury  to  find  that  Bullock  had  actually  killed.     In 
addition,  the  court  noted  that  the  instructions  offered  the 
jury  at  the  sentencing  phase  nowhere  required  the  jury  to 
make  any  further  findings  regarding  Bullock's  personal  in- 
volvement in  the  killing.     Thus,  it  was  quite  possible  that  the 
jury  had  sentenced  Bullock  to  death  without  ever  finding  that 
he  had  killed,  attempted  to  kill,  or  intended  to  kill.      In  the 
court's  view,  Enmund  prohibited  execution  of  a  defendant 
absent  such  findings  by  the  trier  of  fact;  accordingly,  the 
court  granted  a  writ  of  habeas  corpus  vacating  Bullock's 
death  sentence,  but  permitting  the  State,  "at  its  option,  to 
either  impose  a  sentence  of  life  imprisonment  or,  within  a 
reasonable  period  of  time,  conduct  a  new  sentencing  hearing" 
at  which  with  the  proper  findings  a  death  sentence  could  be 
reimposed.     743  F.  2d,  at  248. 

Because  the  Fifth  Circuit's  holding  that  Enmund  can  be 
satisfied  only  by  findings  made  at  the  guilt-innocence  or  sen- 
tencing phase  of  a  trial  (see  also  Reddix  v.  Thigpen,  728  F.  2d 
705  (CAS  1984))  conflicts  with  the  interpretation  of  Enmund 
adopted  by  the  Eleventh  Circuit,  see  Ross  v.  Kemp,  756  F. 
2d  1483  (1985),1  we  granted  certiorari,  471  U.  S.  1052  (1985). 

1  Under  the  interpretation  of  Enmund  adopted  by  the  Eleventh  Circuit 
in  Ross,  a  jury  finding  that  the  defendant  possesses  the  requisite  culpabil- 
ity is  not  required  by  the  Eighth  Amendment.  756  F.  2d,  at  1488.  In  the 
absence  of  such  a  finding,  Ross  holds,  the  Eighth  Amendment  requires  no 
more  than  that  a  federal  habeas  corpus  court  conduct  an  independent  re- 
view of  the  record  to  determine  whether  the  defendant's  "level  of  individ- 
ual participation  .  .  .  justifies  the  application  of  the  death  penalty."  Id.,  at 
1489.  We  agree  that  if  the  federal  court  made  the  Enmund  finding,  the 


CABANA  v.  BULLOCK  383 

376  Opinion  of  the  Court 

II 

The  Court  of  Appeals  was  correct  in  concluding  that  nei- 
ther the  jury's  verdict  of  guilt  nor  its  imposition  of  the  death 
sentence  necessarily  reflects  a  finding  that  Bullock  killed,  at- 
tempted to  kill,  or  intended  to  kill.  The  jury  instructions  at 
the  guilt  phase  were,  to  say  the  least,  confusing,  and  they  do 
not  lend  themselves  easily  to  any  particular  interpretation. 
A  fair-minded  juror,  however,  could  have  understood  them  to 
mean  that  the  jury  could  find  Bullock  guilty  of  capital  murder 
without  regard  to  his  intent  and  solely  by  virtue  of  his  having 
aided  his  accomplice  at  some  point  in  the  assault  that  led  to 
the  killing.2  This  interpretation  of  the  instructions  is  but- 


Eighth  Amendment  would  be  satisfied,  but  as  will  appear,  we  hold  that  the 
state  courts  should  be  given  the  opportunity  to  address  the  matter  in  the 
first  instance. 

2  An  instruction  offered  after  the  one  quoted  supra,  at  380,  informed  the 
jury  that  to  find  Bullock  guilty  of  capital  murder,  it  must  find  that  he  "did 
in  fact  kill  Mark  Dickson  without  malice,  without  authority  of  law,  and  not 
in  necessary  self  defense."  App.  90-91.  This  instruction  does  not  change 
our  view  that  the  jury's  verdict  does  not  necessarily  reflect  a  finding  that 
Bullock  killed.  The  preceding  instruction  had  explicitly  informed  the  jury 
that  it  could  find  Bullock  guilty  if  his  accomplice  had  done  the  actual  killing. 
The  jury  could  well  have  concluded,  reading  the  instructions  together,  that 
the  instruction  that  Bullock  must  have  "in  fact  killed"  referred  only  to  a 
requirement  that  Bullock  have  committed  acts  that  rendered  him  legally 
accountable  for  the  killing  under  the  previous  instruction.  Under  this 
reading  of  the  instructions,  the  earlier,  more  specific  instruction  would  be 
read  as  defining  the  legal  meaning  of  the  requirement  that  Bullock  must 
have  "in  fact  killed." 

Even  if  the  second  instruction  is  read  as  simply  irreconcilable  with  the 
first,  however,  we  cannot  conclude  that  the  jury  followed  the  second  in- 
struction. As  was  the  case  last  Term  in  Francis  v.  Franklin,  471  U.  S. 
307,  322  (1985),  "[n]othing  in  these  specific  sentences  or  in  the  charge  as  a 
whole  makes  clear  to  the  jury  that  one  of  these  contradictory  instructions 
carries  more  weight  than  the  other.  Language  that  merely  contradicts 
and  does  not  explain  a  constitutionally  infirm  instruction  will  not  suffice  to 
absolve  the  infirmity.  A  reviewing  court  has  no  way  of  knowing  which  of 
the  two  irreconcilable  instructions  the  jurors  applied  in  reaching  their  ver- 
dict." Moreover,  to  the  extent  that  one  can  speculate  as  to  which  of  the 


384  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

tressed,  as  Judge  Garwood  pointed  out  in  his  concurring 
opinion  below,  by  the  fact  that  "the  entire  case  was  essen- 
tially tried  on  the  theory,  in  full  accordance  with  the  then  law 
of  Mississippi,  that  it  was  not  necessary,  either  for  the  felony 
murder  conviction  or  for  the  sentence  to  death,  to  find  that 
Bullock  had  either  the  intent  to  kill  or  any  personal  participa- 
tion in  the  killing."  743  F.  2d,  at  248.  Thus,  the  jury  may 
well  have  sentenced  Bullock  to  death  despite  concluding  that 
he  had  neither  killed  nor  intended  to  kill;  or  it  may  have 
reached  its  decision  without  ever  coming  to  any  conclusion 
whatever  on  those  questions. 

Ill 

But  the  conclusion  that  the  jury  may  not  have  found  that 
the  defendant  killed,  attempted  to  kill,  or  intended  that  a  kill- 
ing take  place  or  that  lethal  force  be  employed  does  not  end 
the  inquiry  into  whether  Enmund  bars  the  death  sentence; 
rather,  it  is  only  the  first  step.  In  focusing  only  on  the  jury 
instructions— and  in  requiring  a  new  sentencing  hearing  be- 
fore a  jury  before  the  death  penalty  might  be  reimposed— the 
Fifth  Circuit  apparently  proceeded  upon  the  premise  that 
Enmund  can  be  satisfied  only  at  a  sentencing  hearing  and 
by  a  jury's  decision  (presumably  based  upon  proof  beyond 
reasonable  doubt)  that  the  defendant  possessed  the  requisite 
culpability.  Examination  of  the  nature  of  our  ruling  in 
Enmund  reveals  that  this  premise  is  erroneous. 

A  defendant  charged  with  a  serious  crime  has  the  right  to 
have  a  jury  determine  his  guilt  or  innocence,  Duncan  v.  Lou- 
isiana, 391  U.  S.  145  (1968),  and  a  jury's  verdict  cannot  stand 
if  the  instructions  provided  the  jury  do  not  require  it  to  find 
each  element  of  the  crime  under  the  proper  standard  of  proof, 
Sandstrom  v.  Montana,  442  U.  S.  510  (1979).  Findings 

instructions  the  jurors  followed  in  this  case,  it  seems  more  likely  that  they 
would  have  chosen  the  earlier  instruction,  which,  though  somewhat  harder 
to  follow,  appears  to  be  more  comprehensive  and  more  specifically  tied  to 
the  facts  presented  to  the  jury. 


CABANA  v.  BULLOCK  385 

376  Opinion  of  the  Court 

made  by  a  judge  cannot  cure  deficiencies  in  the  jury's  finding 
as  to  the  guilt  or  innocence  of  a  defendant  resulting  from  the 
court's  failure  to  instruct  it  to  find  an  element  of  the  crime. 
See  Connecticut  v.  Johnson,  460  U.  S.  73,  95,  and  n.  3  (1983) 
(POWELL,  J.,  dissenting);  cf.  Beck  v.  Alabama,  447  U.  S. 
625,  645  (1980);  Presnell  v.  Georgia,  439  U.  S.  14  (1978);  id., 
at  22  (POWELL,  J.,  dissenting).  But  our  ruling  in  Enmund 
does  not  concern  the  guilt  or  innocence  of  the  defendant — it 
establishes  no  new  elements  of  the  crime  of  murder  that  must 
be  found  by  the  jury.  Rather,  as  the  Fifth  Circuit  itself  has 
recognized,  Enmund  "does  not  affect  the  state's  definition  of 
any  substantive  offense,  even  a  capital  offense."  Reddix  v. 
Thigpen,  728  F.  2d,  at  709;  see  also  Enmund,  458  U.  S.,  at 
810,  n.  19  (O'CONNOR,  J.,  dissenting).  Enmund  holds  only 
that  the  principles  of  proportionality  embodied  in  the  Eighth 
Amendment  bar  imposition  of  the  death  penalty  upon  a  class 
of  persons  who  may  nonetheless  be  guilty  of  the  crime  of 
capital  murder  as  defined  by  state  law:  that  is,  the  class  of 
murderers  who  did  not  themselves  kill,  attempt  to  kill,  or 
intend  to  kill.3 

The  decision  whether  a  particular  punishment— even  the 
death  penalty— is  appropriate  in  any  given  case  is  not  one 
that  we  have  ever  required  to  be  made  by  a  jury.  Indeed,  in 
Spaziano  v.  Florida,  468  U.  S.  447  (1984),  we  specifically  re- 
jected the  argument  that  the  Sixth  Amendment  or  any  other 
constitutional  provision  provides  a  defendant  with  the  right 


3  We  are  unable  to  understand  JUSTICE  BLACKMUN'S  statement  that  we 
have  failed  to  grasp  "the  distinction  .  .  .  between  defining  an  offense  and 
being  entitled  to  execute  a  defendant."  Post,  at  403.  As  stated  in  the 
text,  we  recognize  that  there  is  a  class  of  persons  whom  the  State  may 
define  as  having  committed  capital  murder  but  whom  the  State  may  not 
permissibly  execute.  The  point  we  are  making,  however,  is  that  while 
the  Eighth  Amendment  prohibits  the  execution  of  such  defendants,  it  does 
not  supply  a  new  element  of  the  crime  of  capital  murder  that  must  be  found 
by  the  jury;  hence,  such  cases  as  Cole  v.  Arkansas,  333  U.  S.  196  (1948), 
which  hold  that  the  inadequacy  of  a  jury's  findings  on  the  issue  of  guilt  or 
innocence  may  not  be  corrected  by  an  appellate  court,  are  inapposite. 


386  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

to  have  a  jury  consider  the  appropriateness  of  a  capital  sen- 
tence. Moreover,  the  decision  whether  a  sentence  is  so  dis- 
proportionate as  to  violate  the  Eighth  Amendment  in  any 
particular  case,  like  other  questions  bearing  on  whether  a 
criminal  defendant's  constitutional  rights  have  been  violated, 
has  long  been  viewed  as  one  that  a  trial  judge  or  an  appellate 
court  is  fully  competent  to  make.  See,  e.  g.,  Solem  v.  Helm, 
463  U.  S.  277  (1983);  Weems  v.  United  States,  217  U.  S.  349 
(1910). 

The  determination  whether  the  death  sentence  is  permissi- 
ble under  Enmund  is  different  in  a  significant  respect  both 
from  the  general  exercise  of  sentencing  discretion  and  from 
the  type  of  Eighth  Amendment  proportionality  inquiry  un- 
dertaken in  Solem  v.  Helm.  The  latter  two  determinations 
typically  involve  case-by-case,  totality-of-the-circumstances 
decisionmaking.  Enmund,  by  contrast,  imposes  a  categori- 
cal rule:  a  person  who  has  not  in  fact  killed,  attempted  to  kill, 
or  intended  that  a  killing  take  place  or  that  lethal  force  be 
used  may  not  be  sentenced  to  death.  Nonetheless,  the  rule 
remains  a  substantive  limitation  on  sentencing,  and  like  other 
such  limits  it  need  not  be  enforced  by  the  jury. 

Indeed,  Enmund  does  not  impose  any  particular  form  of 
procedure  upon  the  States.  The  Eighth  Amendment  is 
satisfied  so  long  as  the  death  penalty  is  not  imposed  upon  a 
person  ineligible  under  Enmund  for  such  punishment.  If  a 
person  sentenced  to  death  in  fact  killed,  attempted  to  kill,  or 
intended  to  kill,  the  Eighth  Amendment  itself  is  not  violated 
by  his  or  her  execution  regardless  of  who  makes  the  deter- 
mination of  the  requisite  culpability;  by  the  same  token,  if  a 
person  sentenced  to  death  lacks  the  requisite  culpability,  the 
Eighth  Amendment  violation  can  be  adequately  remedied  by 
any  court  that  has  the  power  to  find  the  facts  and  vacate  the 
sentence.  At  what  precise  point  in  its  criminal  process  a 
State  chooses  to  make  the  Enmund  determination  is  of  little 
concern  from  the  standpoint  of  the  Constitution.  The  State 
has  considerable  freedom  to  structure  its  capital  sentencing 


CABANA  v.  BULLOCK  387 

376  Opinion  of  the  Court 

system  as  it  sees  fit,  for  "[a]s  the  Court  has  several  times 
made  clear,  we  are  unwilling  to  say  that  there  is  any  one 
right  way  for  a  State  to  set  up  its  capital  sentencing  scheme." 
Spaziano,  supra,  at  464;  see  also  Pulley  v.  Harris,  465  U.  S. 
37  (1984);  Zant  v.  Stephens,  462  U.  S.  862  (1983);  Gregg  v. 
Georgia,  428  U.  S.  153,  195  (1976)  (opinion  of  Stewart,  POW- 
ELL, and  STEVENS,  JJ.). 

Accordingly,  when  a  federal  habeas  court  reviews  a  claim 
that  the  death  penalty  has  been  imposed  on  one  who  has  nei- 
ther killed,  attempted  to  kill,  nor  intended  that  a  killing 
take  place  or  lethal  force  be  used,  the  court's  inquiry  cannot 
be  limited  to  an  examination  of  jury  instructions.  Rather, 
the  court  must  examine  the  entire  course  of  the  state-court 
proceedings  against  the  defendant  in  order  to  determine 
whether,  at  some  point  in  the  process,  the  requisite  factual 
finding  as  to  the  defendant's  culpability  has  been  made.4  If 

4  JUSTICE  BLACKMUN'S  reliance  on  Hicks  v.  Oklahoma,  447  U.  S.  343 
(1980),  and  Presnell  v.  Georgia,  439  U.  S.  14  (1978),  for  the  proposition 
that  state  appellate  courts  may  not  supply  essential  findings  that  the  jury 
has  omitted  is,  as  applied  in  this  case,  misguided.  In  Hicks,  we  held  only 
that  where  state  law  creates  for  the  defendant  a  liberty  interest  in  having 
the  jury  make  particular  findings,  the  Due  Process  Clause  implies  that 
appellate  findings  do  not  suffice  to  protect  that  entitlement.  Unlike  the 
defendant  in  Hicks,  Bullock  had  no  state-law  entitlement  at  the  time  of  his 
trial  to  have  the  jury  (or,  indeed,  anyone  at  all)  make  the  Enmund  find- 
ings. Of  course,  federal  law,  as  later  established  by  Enmund,  does  entitle 
Bullock  to  a  determination  whether  he  killed,  attempted  to  kill,  intended  to 
kill,  or  intended  that  lethal  force  be  used;  but,  for  the  reasons  explained 
in  the  text,  the  federal-law  entitlement,  unlike  the  state-law  entitlement 
involved  in  Hicks,  does  not  specify  who  must  make  the  findings. 

In  Presnell,  the  defendant  was  convicted  on  charges  of  murder  and  kid- 
naping with  bodily  injury,  and  was  sentenced  to  death  by  the  jury.  The 
sole  aggravating  factor  supporting  the  death  penalty  for  murder  was  that 
the  defendant  was  also  guilty  of  kidnaping  with  bodily  injury.  The  Geor- 
gia Supreme  Court  found  that  the  jury  had  been  wrongly  instructed  on  the 
elements  of  kidnaping  with  bodily  injury,  but  affirmed  both  the  conviction 
for  that  crime  and  the  use  of  the  crime  as  an  aggravating  factor  on  the 
ground  that  the  evidence  was  sufficient  to  support  the  jury's  findings  under 
a  theory  on  which  the  jury  had  not  been  instructed.  We  set  aside  both  the 


388  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

it  has,  the  finding  must  be  presumed  correct  by  virtue  of 
28  U.  S.  C.  §2254(d),  see  Sumner  v.  Mata,  449  U.  S.  539 
(1981),  and  unless  the  habeas  petitioner  can  bear  the  heavy 
burden  of  overcoming  the  presumption,  the  court  is  obliged 
to  hold  that  the  Eighth  Amendment  as  interpreted  in 
Enmund  is  not  offended  by  the  death  sentence.5 


conviction  and  the  death  sentence  on  the  authority  of  Cole  v.  Arkansas, 
333  U.  S.  196  (1948),  which  held  that  it  was  constitutional  error  for  a  state 
court  to  affirm  a  conviction  for  one  offense  on  the  basis  of  evidence  in  the 
record  indicating  that  the  defendant  had  committed  another  offense  on 
which  the  jury  had  not  been  instructed.  Insofar  as  it  merely  applied  Cole 
in  setting  aside  the  defendant's  conviction  for  kidnaping  with  bodily  injury, 
Presnell  is  unremarkable  and  has  little  to  do  with  this  case.  See  n.  3, 
supra.  But  in  reversing  as  well  the  death  sentence  on  the  ground  that  the 
Georgia  Supreme  Court  could  not  find  an  aggravating  factor  on  a  theory  on 
which  the  jury  had  not  been  instructed,  the  Presnell  Court  appeared  to  as- 
sume that  the  jury's  constitutional  role  in  determining  sentence  was  equiv- 
alent to  its  role  in  determining  guilt  or  innocence.  This  assumption,  of 
course,  is  no  longer  tenable  in  light  of  our  holding  in  Spaziano  v.  Florida, 
468  U.  S.  447  (1984). 

6  Sumner,  of  course,  establishes  that  the  presumption  applies  to  facts 
found  by  appellate  as  well  as  trial  courts.     449  U.  S.,  at  545-547.     There 
might  be  instances,  however,  in  which  the  presumption  would  not  apply  to 
appellate  factfinding  regarding  the  Enmund  criteria  because  appellate 
factfinding  procedures  were  not  "adequate,"  see  28  U.  S.  C.  §2254(d)(2). 
For  example,  the  question  whether  the  defendant  killed,  attempted  to  kill, 
or  intended  to  kill  might  in  a  given  case  turn  on  credibility  determinations 
that  could  not  be  accurately  made  by  an  appellate  court  on  the  basis  of  a 
paper  record,  cf.  Anderson  v.  Bessemer  City,  470  U.  S.  564,  575  (1985); 
Waimoright  v.  Witt,  469  U.  S.  412,  429  (1985).     The  possibility  that  such 
cases  falling  within  the  §  2254(d)(2)  exception  may  exist,  however,  does  not 
excuse  the  habeas  court  of  its  obligation  to  examine  the  entire  state  process 
to  determine  whether  the  Enmund  findings  have  been  made,  for  it  is  by  no 
means  apparent  that  appellate  factfinding  will  always  be  inadequate.     For 
example,  in  some  cases  it  may  be  possible  to  determine  the  Enmund  issue 
adversely  to  the  defendant  even  if  credibility  issues  and  other  ambiguities 
in  the  record  are  resolved  in  his  or  her  favor.     See,  e.  g.,  Ross  v.  Kemp, 
756  F.  2d  1483,  1488-1490  (CA11  1985).     We  shall  not  now  attempt  to  de- 
termine what  factfinding  procedures  would  be  adequate  in  the  particular 
case  before  us,  for,  as  we  shall  see,  the  state  courts  have  not  yet  purported 


CABANA  v.  BULLOCK  389 

376  Opinion  of  the  Court 

IV 

The  Court  of  Appeals  thus  erred  in  focusing  exclusively  on 
the  jury  and  in  ordering  a  new  sentencing  hearing  without  in- 
quiring whether  the  necessary  finding  of  intent  had  been 
made  by  the  trial  court  or  by  the  state  appellate  court.  The 
State  argues  that  the  Mississippi  Supreme  Court  itself  made 
a  finding  sufficient  to  satisfy  Enmund  in  the  course  of  its 
direct  review  of  Bullock's  conviction  and  sentence.  It  relies 
on  two  separate  statements  in  the  court's  opinion.  First,  in 
responding  to  the  claim  of  insufficient  evidence,  the  court 
said  that  "[t]he  evidence  is  overwhelming  that  appellant  was 
present,  aiding  and  assisting  in  the  assault  upon,  and  slaying 
of,  Dickson."  391  So.  2d,  at  606.  Second,  in  determining 
that  the  death  penalty  was  not  disproportionate  to  the  sen- 
tences imposed  in  other  cases,  the  court  stated  that  "[t]he 
evidence  is  overwhelming  that  appellant  was  an  active  par- 
ticipant in  the  assault  and  homicide  committed  upon  Mark 
Dickson."  Id.,  at  614. 

We  are  very  doubtful,  however,  that  these  assessments  of 
the  record  were  sufficient  in  themselves  to  constitute  a  find- 
ing that  Bullock  killed,  attempted  to  kill,  or  intended  to  kill 
Dickson.  The  Mississippi  Supreme  Court  obviously  was  not 
addressing  the  specific  requirements  set  forth  in  Enmund, 
for  that  case  had  not  yet  been  decided.  Rather,  the  court's 
remarks  are  better  read  as  stating  the  court's  conclusion  that 
Bullock's  participation  in  the  assault  and  robbery  were  suffi- 
cient to  make  him  liable  for  the  murder  and  deserving  of  the 
death  penalty  in  light  of  Mississippi  law  under  which  one  who 
takes  some  overt  act  in  aid  of  an  assault  that  leads  to  a  killing 
by  his  accomplice  is  equally  responsible  with  the  accomplice 
for  the  killing.  Indeed,  immediately  before  its  statement 
with  respect  to  proportionality,  the  court  said  that  "[t]he  law 
is  well  settled  in  this  state  that  any  person  who  is  present, 


to  engage  in  the  requisite  factfinding,  and  we  decline  to  decide  the  hypo- 
thetical question  of  the  adequacy  of  that  which  has  not  yet  occurred. 


390  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

aiding  and  abetting  another  in  the  commission  of  a  crime,  is 
equally  guilty  with  the  principal  offender."  391  So.  2d,  at 
614.  In  other  words,  the  Mississippi  court's  statements 
represent  at  most  a  finding  that,  as  the  District  Court  put 
it,  Bullock  "by  legal  definition  actually  killed."  App.  to  Pet. 
for  Cert.  A30-A31  (emphasis  added).  Such  a  finding  does 
not  satisfy  Enmund,  for  Enmund  holds  that  the  Eighth 
Amendment  does  more  than  require  that  a  death-sentenced 
defendant  be  legally  responsible  for  a  killing  as  a  matter  of 
state  law;  it  requires  that  he  himself  have  actually  killed, 
attempted  to  Mil,  or  intended  that  lethal  force  be  used. 


There  remains  the  question  of  the  appropriate  course  of  ac- 
tion for  a  federal  court  faced  with  a  petition  for  habeas  corpus 
raising  an  Enmund  claim  when  the  state  courts  have  failed  to 
make  any  finding  regarding  the  Enmund  criteria.  Two  pos- 
sibilities come  immediately  to  mind.  The  federal  court  could 
itself  make  the  factual  determination  whether  the  defendant 
killed,  attempted  to  kill,  or  intended  to  kill,  and  either  grant 
or  deny  the  writ  depending  on  the  outcome  of  that  inquiry. 
Alternatively,  the  federal  court  could  take  steps  to  require 
the  State's  own  judicial  system  to  make  the  factual  findings  in 
the  first  instance.  Such  findings  would,  of  course,  be  pre- 
sumptively correct  as  a  result  of  28  U.  S.  C.  §  2254(d)  in  any 
subsequent  federal  habeas  proceedings. 

Either  alternative  would,  in  theory,  be  adequate  to  remedy 
any  hypothesized  Eighth  Amendment  violation,  for  either  ap- 
proach would  prevent  the  execution  of  any  defendant  who  did 
not  in  fact  kill,  attempt  to  kill,  or  intend  the  use  of  lethal 
force.  We  believe,  however,  that  the  second  course  of  action 
is  the  sounder  one.  Two  considerations  underlie  this  conclu- 
sion. First,  to  the  extent  that  Enmund  recognizes  that  a 
defendant  has  a  right  not  to  face  the  death  penalty  absent  a 
particular  factual  predicate,  it  also  implies  that  the  State's  ju- 
dicial process  leading  to  the  imposition  of  the  death  penalty 


CABANA  v.  BULLOCK  391 

376  Opinion  of  the  Court 

must  at  some  point  provide  for  a  finding  of  that  factual  predi- 
cate. Accordingly,  Bullock  "is  entitled  to  a  determination  [of 
the  issue]  in  the  state  courts  in  accordance  with  valid  state 
procedures."  Jackson  v.  Denno,  378  U.  S.  368,  393  (1964). 
Second,  the  State  itself  has  "a  weighty  interest  in  having 
valid  federal  constitutional  criteria  applied  in  the  administra- 
tion of  its  criminal  law  by  its  own  courts."  Rogers  v.  Rich- 
mond, 365  U.  S.  534,  548  (1961).  Considerations  of  federal- 
ism and  comity  counsel  respect  for  the  ability  of  state  courts 
to  carry  out  their  role  as  the  primary  protectors  of  the  rights 
of  criminal  defendants,  see  Younger  v.  Harris,  401  U.  S.  37 
(1971);  these  same  considerations  indicate  the  appropriate- 
ness of  allowing  the  Mississippi  courts  an  opportunity  to 
carry  out  in  the  first  instance  the  factual  inquiry  called  for  by 
Enmund.  To  paraphrase  our  opinion  in  Jackson  v.  Denno, 
supra,  at  393-394,  it  is  Mississippi,  therefore,  not  the  federal 
habeas  corpus  court,  which  should  first  provide  Bullock  with 
that  which  he  has  not  yet  had  and  to  which  he  is  constitution- 
ally entitled— a  reliable  determination  as  to  whether  he  is 
subject  to  the  death  penalty  as  one  who  has  killed,  attempted 
to  kill,  or  intended  that  a  killing  take  place  or  that  lethal  force 
be  used.6 


6  There  may  be  some  cases  in  which  the  jury  instructions  would  theoret- 
ically have  permitted  the  jury  to  find  the  defendant  guilty  of  a  capital  of- 
fense and  sentence  him  to  death  without  finding  the  Enmund  factors,  but 
in  which  the  theory  on  which  the  case  was  tried  and  the  evidence  received 
leave  no  doubt  that  the  jury's  verdict  rested  on  a  finding  that  the  defendant 
killed  or  intended  to  kill.  For  example,  where  a  defendant  conceded  that 
he  committed  the  killing  and  defended  against  the  charge  of  murder  only 
by  claiming  self-defense,  a  jury  verdict  of  guilty  would  necessarily  satisfy 
Enmund  even  if,  for  some  reason,  the  trial  court's  instructions  did  not 
explicitly  require  a  finding  that  the  defendant  killed,  attempted  to  kill,  or 
intended  to  kill.  In  such  a  case,  a  federal  habeas  court  would  be  justified 
in  treating  the  state  courts'  failure  to  make  explicit  Enmund  findings  as 
harmless  beyond  a  reasonable  doubt;  the  court  would  therefore  simply 
deny  the  writ  without  requiring  further  proceedings  in  the  state  courts. 
Cf.  Ross  v.  Kemp,  756  F.  2d,  at  1499-1500  (Clark,  J.,  concurring  in  part 
and  dissenting  in  part). 


392  OCTOBER  TERM,  1985 

BURGER,  C.  J.,  concurring  474  U.  S. 

VI 

The  proceeding  that  the  state  courts  must  provide  Bullock 
need  not  take  the  form  of  a  new  sentencing  hearing  before  a 
jury.  As  indicated  above,  the  Eighth  Amendment  does  not 
require  that  a  jury  make  the  findings  required  by  Enmund. 
Moreover,  the  sentence  currently  in  force  may  stand  pro- 
vided only  that  the  requisite  findings  are  made  in  an  ade- 
quate proceeding  before  some  appropriate  tribunal — be  it 
an  appellate  court,  a  trial  judge,  or  a  jury.7  A  new  hearing 
devoted  to  the  identification  and  weighing  of  aggravating 
and  mitigating  factors  is  thus,  as  far  as  we  are  concerned, 
unnecessary. 

Accordingly,  the  District  Court  should  be  directed  to  issue 
the  writ  of  habeas  corpus  vacating  Bullock's  death  sentence 
but  leaving  to  the  State  of  Mississippi  the  choice  of  either  im- 
posing a  sentence  of  life  imprisonment  or,  within  a  reasonable 
time,  obtaining  a  determination  from  its  own  courts  of  the 
factual  question  whether  Bullock  killed,  attempted  to  kill,  in- 
tended to  kill,  or  intended  that  lethal  force  would  be  used.  If 
it  is  determined  that  Bullock  possessed  the  requisite  culpabil- 
ity, the  death  sentence  may  be  reimposed.  The  judgment  of 
the  Court  of  Appeals  is  modified  to  this  extent,  and  the  case 
is  remanded  to  that  court  for  farther  proceedings  consistent 
with  this  opinion. 

It  is  so  ordered. 

CHIEF  JUSTICE  BURGER,  concurring. 

Although  I  see  no  need  for  remanding  for  further  findings 
in  the  State's  courts,  I  join  the  Court's  opinion.  It  is  true 
that  the  Mississippi  Supreme  Court  did  not  have  Enmund's 

7  Mississippi  has  adopted  a  post-Enmund  capital  sentencing  statute, 
under  which  the  task  of  determining  whether  the  defendant  killed,  at- 
tempted to  kill,  intended  to  kill,  or  intended  that  lethal  force  be  used  is 
delegated  to  the  jury,  Miss.  Code  Ann.  §99-19-101(7)  (Supp.  1985). 
Whether  this  provision  has  any  application  where,  as  in  this  case,  trial 
occurred  prior  to  the  passage  of  the  statute,  is  a  matter  of  state  law  that 
we  do  not  attempt  to  resolve. 


CABANA  v.  BULLOCK  393 

376  BRENNAN,  J.,  dissenting 

findings  explicitly  in  mind  when  it  reviewed  the  sentence  of 
death  imposed  on  respondent  Bullock,  because  the  Missis- 
sippi courts  had  completed  their  review  before  Enmund  was 
decided.  Nevertheless,  the  Mississippi  Supreme  Court's 
opinion  makes  it  clear  that  Enmund's  concerns  have  been 
fully  satisfied  in  this  case. 

In  rejecting  respondent's  claim  that  there  was  insufficient 
evidence  to  support  his  capital  murder  conviction  because  he 
"was  an  unwilling  participant  in  the  robbery-homicide,"  that 
court  explicitly  found  "[t]he  evidence  is  overwhelming  that 
appellant  was  present,  aiding  and  assisting  in  the  assault 
upon,  and  slaying  of,  Dickson."  Bullock  v.  State,  391  So.  2d 
601,  606  (1980)  (emphasis  added),  cert,  denied,  452  U.  S.  931 
(1981).  That  court  further  rejected  a  claim  that  the  death 
penalty  was  disproportionate  to  sentences  imposed  in  similar 
cases,  after  again  finding  that  "[t]he  evidence  is  overwhelm- 
ing that  appellant  was  an  active  participant  in  the  assault  and 
homicide  committed  upon  Mark  Dickson."  391  So.  2d,  at 
614. 

Surely  these  statements  reflect  a  conclusion  of  the  state 
court  that  respondent  actively  participated  in  the  actual  kill- 
ing, which  is  far  more  than  Enmund  requires.  In  these  cir- 
cumstances, I  see  no  need  to  expend  finite  judicial  resources 
by  remanding  and  calling  for  the  Mississippi  Supreme  Court 
to  tell  us  what  it  has  already  made  clear,  i.  e.,  that  respond- 
ent's culpability  more  than  satisfies  any  proportionality  con- 
cerns dictated  by  Enmund. 

JUSTICE  BRENNAN,  dissenting. 

Although  I  join  JUSTICE  BLACKMUN'S  and  JUSTICE  STE- 
VENS' dissents,  I  adhere  to  my  view  that  the  death  penalty  is 
in  all  circumstances  cruel  and  unusual  punishment  prohibited 
by  the  Eighth  and  Fourteenth  Amendments,  Gregg  v.  Geor- 
gia, 428  U.  S.  153,  227  (1976)  (BRENNAN,  J.,  dissenting). 
Accordingly,  I  would  vacate  the  death  sentence  and  remand 
the  case  so  that  the  state  court  can  determine  what  sen- 
tence—  other  than  death — may  be  appropriate. 


394  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

JUSTICE  BLACKMUN,  with  whom  JUSTICE  BRENNAN  and 
JUSTICE  MARSHALL  join,  dissenting. 

Last  Term,  in  Caldwell  v.  Mississippi,  472  U.  S.  320 
(1985)  (a  case  not  even  cited  by  the  Court  in  its  controlling 
opinion,  ante,  p.  376),  we  recognized  institutional  limits  on  an 
appellate  court's  ability  to  determine  whether  a  defendant 
should  be  sentenced  to  death: 

'Whatever  intangibles  a  jury  might  consider  in  its 
sentencing  determination,  few  can  be  gleaned  from 
an  appellate  record.  This  inability  to  confront  and 
examine  the  individuality  of  the  defendant  would  be 
particularly  devastating  to  any  argument  for  consider- 
ation of  what  this  Court  has  termed  '[thosel  compassion- 
ate or  mitigating  factors  stemming  from  the  diverse 
frailties  of  humankind.'  When  we  held  that  a  defendant 
has  a  constitutional  right  to  the  consideration  of  such 
factors,  we  clearly  envisioned  that  that  consideration 
would  occur  among  sentencers  who  were  present  to  hear 
the  evidence  and  arguments  and  see  the  witnesses." 
472  U.  S.,  at  330-331  (citations  omitted;  interpolation  in 
original). 

That  statement  in  Caldwell  is  not  an  abstract  disquisition  on 
appellate  courts  generally.  It  concerns,  in  particular,  the 
institutional  limits  of  the  Supreme  Court  of  Mississippi  in 
capital  cases.  Today,  the  Court  ignores  those  recently 
stated  limits  and  holds  that  the  Mississippi  Supreme  Court 
may  be  competent  to  make,  on  a  paper  record,  the  findings 
required  by  Enmund  v.  Florida,  458  U.  S.  782  (1982)— that 
Crawford  Bullock,  Jr.,  killed,  attempted  to  kill,  or  intended 
to  kill  Mark  Dickson,  and  thus  deserves  to  die.  The  Court 
reaches  that  result  by  paying  lipservice  to  the  constitutional 
significance  of  Enmund  while  relegating  Enmund  findings 
to  a  position  of  judicial  afterthought.  The  nature  of  the 
Enmund  findings,  however,  dictates  who  must  make  them 
and  at  what  point  in  the  sentencing  process  they  must  be 


CABANA  v.  BULLOCK  395 

376  BLACKMUN,  J.,  dissenting 

made.  The  Eighth  Amendment  requires  that  Enmund  find- 
ings be  made  at  the  trial  court  level  before  the  sentencer  con- 
demns a  defendant  to  death.  The  Court's  misreading  of 
Enmund  threatens  a  retreat  from  the  constitutional  safe- 
guards on  the  capital  sentencing  process  that  the  Court  has 
acknowledged  in  the  decade  since  Gregg  v.  Georgia,  428 
U.  S.  153  (1976). 

I 

Bullock  testified  both  at  his  trial  and  at  his  sentencing  pro- 
ceeding. He  explicitly  denied  that  he  killed,  attempted  to 
Mil,  or  intended  to  kill  Dickson.  See,  e.  g.,  Tr.  956,  983,  996, 
1190.  The  jury's  verdict  and  sentence  are  entirely  consist- 
ent under  Mississippi  law  with  Bullock's  testimony.  As  the 
Court  recognizes,  that  law  and  the  trial  court's  instructions 
permitted  the  jury  to  convict  him  and  to  sentence  him  to 
death  without  finding  any  particular  degree  of  personal  par- 
ticipation in  the  killing.  Ante,  at  383-384. 

The  Court  also  recognizes  that  the  Mississippi  Supreme 
Court  failed  to  make  the  required  Enmund  findings.  That 
court  affirmed  Bullock's  conviction  and  death  sentence  based 
on  its  view  of  Bullock's  culpability  under  Mississippi's  law  of 
aiding  and  abetting,  which  establishes  a  threshold  far  below 
Enmund's  constitutional  minimum.  Ante,  at  389-390.  The 
Mississippi  Supreme  Court  explicitly  based  its  account  of  the 
crime  on  Bullock's  written  confession,  see  Bullock  v.  State, 
391  So.  2d  601,  605,  cert,  denied,  452  U.  S.  931  (1981),  in 
which  Bullock  stated  only  that  Tucker  killed  Dickson,  and 
that  he,  Bullock,  had  no  intention  of  robbing  Dickson.  Tr. 
387-390.  That  confession  provides  no  evidence  that  Bullock 
killed,  attempted  to  kill,  or  intended  to  kill  Dickson.  Thus, 
the  Court  properly  concludes  that  none  of  the  required 
Enmund  findings  has  been  made. 

II 

The  central  message  of  Enmund  is  that  the  death  penalty 
cannot  constitutionally  be  imposed  without  an  intensely  indi- 


396  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.S. 

vidual  appraisal  of  the  "personal  responsibility  and  moral 
guilt"  of  the  defendant.  458  U,  S.,  at  801. 

"The  focus  must  be  on  his  culpability,  .  .  .  for  we  insist 
on  'individualized  consideration  as  a  constitutional  re- 
quirement hi  imposing  the  death  sentence,'  Lockett  v. 
Ohio,  438  U.  S.  586,  605  (1978)  (footnote  omitted),  which 
means  that  we  must  focus  on  'relevant  facets  of  the  char- 
acter and  record  of  the  individual  offender.'  Woodson  v. 
North  Carolina,  428  U.  S.  280,  304  (1976)."  Id.,  at  798 
(emphasis  in  original). 

See  also  Eddings  v.  Oklahoma,  455  U.  S.  104,  110-112 
(1982);  Lockett  v.  Ohio,  438  U.  S.  586,  603-604  (1978)  (plu- 
rality opinion);  Gregg  v.  Georgia,  428  U.  S.,  at  199  (joint 
opinion). 

Put  simply,  Enmund  establishes  a  constitutionally  re- 
quired factual  predicate  for  the  valid  imposition  of  the  death 
penalty.  Cf.  ante,  at  390.  Like  the  statutory  aggravating 
circumstances  discussed  in  Zant  v.  Stephens,  462  U.  S.  862 
(1983),  the  Enmund  findings  "circumscribe  the  class  of  per- 
sons eligible  for  the  death  penalty."  462  U.  S. ,  at  878.  Just 
as,  absent  the  finding  of  a  statutory  aggravating  circum- 
stance, "  '[a]  case  may  not  pass  .  .  .  into  that  area  in  which  the 
death  penalty  is  authorized' "  under  Georgia  law,  id. ,  at  872, 
quoting  Zant  v.  Stephens,  250  Ga.  97,  100,  297  S.  E.  2d  1,  4 
(1982),  so  too,  absent  a  finding  of  one  of  the  Enmund  factors, 
a  case  may  not  pass  into  that  area  in  which  the  death  penalty 
is  authorized  by  the  Eighth  Amendment. 

The  Court  agrees  that  it  would  be  wrong  for  Mississippi 
to  execute  Bullock  without  first  determining  that  he  killed, 
attempted  to  kill,  or  intended  to  kill  Dickson.  See,  e.  g., 
ante,  at  378,  385,  386.  But  if  that  is  so,  then  it  was  also 
wrong  for  the  Mississippi  jury  to  discharge  "the  truly  awe- 
some responsibility  of  decreeing  death  for  a  fellow  human," 
McGautha  v.  California,  402  U.  S.  183,  208  (1971),  without 
first  considering  the  fundamental  issue  of  his  personal  cul- 
pability. By  condemning  Bullock  to  die,  the  jury  announced 


CABANA  v.  BULLOCK  397 

376  BLACKMUN,  J.,  dissenting 

that  he  was  not  fit  to  live.  This  expression  of  the  communi- 
ty's ultimate  outrage,  unaccompanied  as  it  was  by  any  finding 
that  Bullock  possessed  the  degree  of  culpability  required  by 
Enmund,  involved  the  kind  of  deprivation  of  human  dignity 
which  the  Eighth  Amendment  forbids.  Cf.,  e.  g.,  Trop  v. 
Dulles,  356  U.  S.  86,  100-102  (1958)  (plurality  opinion); 
Weems  v.  United  States,  217  U.  S.  349,  366  (1910). 


The  question  of  how  to  cure  this  constitutional  violation  re- 
mains. The  Court  holds  that  an  adequate  remedy  for  the  ab- 
sence of  Enmund  findings  can  be  supplied  by  "any  court  that 
has  the  power  to  find  the  facts  and  vacate  the  sentence." 
Ante,  at  386.  I  believe  that,  in  this  case,  only  a  new  sentenc- 
ing proceeding  before  a  jury  can  guarantee  the  reliability 
which  the  Constitution  demands.  But  the  Court's  decision 
today  goes  beyond  a  simple  determination  of  how  to  cure  an 
error  that  has  already  occurred.  It  tells  the  States,  in  ef- 
fect, that  it  is  no  error  for  a  jury  or  a  trial  judge  to  say  that  a 
defendant  should  die  without  first  considering  his  personal 
responsibility  and  moral  guilt,  as  Enmund  requires.  By 
turning  the  jury  or  trial  court's  determination  into  what 
can  be  viewed  only  as  a  preliminary  stage  in  the  capital- 
sentencing  process,  the  Court's  holding  poses  the  threat  of 
diffusing  the  sentencer's  sense  of  responsibility  in  the  manner 
condemned  in  Caldwell.  The  Court  thus  ignores  both  the 
proper  institutional  roles  of  trial  and  appellate  courts  and  the 
pragmatic  and  constitutional  concerns  with  reliability  that 
underlie  those  roles.  In  short,  the  Court's  holding  rests  on 
an  improper  equation  of  the  wholly  dissimilar  functions  of 
finding  facts  and  of  vacating  a  sentence  because  no  facts  have 
been  found.  Enmund  established  a  clear  constitutional  im- 
perative that  a  death  sentence  not  be  imposed  by  a  sentencer 
who  fails  to  make  one  of  the  Enmund  findings.  The  Court 
confuses  this  imperative  with  the  guarantee  it  purports  to 


398  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

make  today  that  a  death  sentence  will  not  be  carried  out 
before  someone  makes  an  Enwiund  finding. 

That  this  ignores  a  distinction  with  a  constitutional  differ- 
ence is  made  clear  by  the  Court's  decisions  in  Cole  v.  Arkan- 
sas, 333  U.  S.  196  (1948),  and  Presnell  v.  Georgia,  439  U.  S. 
14  (1978).     In  Cole,  the  Court  reversed  a  state  appellate  de- 
cision that  had  affirmed  the  defendants'  sentences  by  finding 
they  had  violated  a  different  statutory  provision  from  the  one 
with  which  they  had  been  charged.      It  recognized  that  the 
Due  Process  Clause  requires  that  defendants  "have  the  valid- 
ity of  their  convictions  appraised  on  consideration  of  the  case 
as  it  was  tried  and  as  the  issues  were  determined  in  the  trial 
court."    333  U.  S.,  at  202.     In  Presnell,  the  Court  acknowl- 
edged that  the  "fundamental  principles  of  procedural  fair- 
ness" announced  in  Cole  "apply  with  no  less  force  at  the 
penalty  phase  of  a  trial  in  a  capital  case  than  they  do  in  the 
guttt-determining  phase  of  any  criminal  trial."     439  U.  S. ,  at 
16.     It  thus  reversed  a  death  sentence  which  the  Georgia 
Supreme  Court  had  affirmed  on  the  basis  of  its  own  finding 
that  evidence  in  the  record  would  support  a  statutory  ag- 
gravating circumstance  that  had  not  been  found  by  the  jury. 
Notably,  in  neither  Cole  nor  Presnell  did  this  Court  consider 
whether  the   State   Supreme   Courts'   evidentiary   findings 
were  correct;  whether  their  findings  were  right  was  entirely 
irrelevant  to  the  question  whether  the  Due  Process  Clause 
gave  them  the  power  to  make  such  findings.      The  Court's 
decision  today  gives  a  state  appellate  court  carte  blanche  to 
engage  in  factfinding  concerning  issues  that  no  one  at  trial 
thought  to  be  relevant.     Here,  as  the  Court  recognizes,  "  'the 
entire  case  was  essentially  tried  on  the  theory  .  .  .  that  it  was 
not  necessary,  either  for  the  felony  murder  conviction  or  for 
the  sentence  to  death,  to  find  that  Bullock  had  either  the 
intent  to  kill  or  any  personal  participation  in  the  killing.'" 
Ante,  at  384,  quoting  Bullock  v.  Lucas,  743  F.  2d  244,  248 


CABANA  v.  BULLOCK  399 

376  BLACKMUN,  J.,  dissenting 

(CAS  1984)  (concurring  opinion);  see  also,  e.g.,  Tr.   1155. 
The  critical  issue  was  never  determined  in  the  trial  court.1 

Far  more  than  "[considerations  of  federalism  and  comity," 
ante,  at  391,  should  prevent  this  Court,  and  other  federal 
habeas  courts,  from  examining  trial  transcripts  and  making 
Enmund  findings  themselves.  Considerations  of  reliability 
provide  a  compelling  reason  for  requiring  state  trial  courts  to 
address  this  issue  in  the  first  instance.  And,  with  respect  to 
the  question  of  reliability,  the  Mississippi  Supreme  Court  is 
in  no  better  position  than  is  this  Court  to  determine  Bullock's 
credibility. 

The  Court's  conclusion  that  we  should  allow  the  States  to 
adopt  capital  punishment  schemes  that  depend  on  appellate 
factfinding  because  "it  is  by  no  means  apparent  that  appellate 
factfinding  will  always  be  inadequate,"  ante,  at  388,  n.  5  (em- 
phasis added),  turns  on  its  head  the  heightened  concern  with 
reliability  that  has  informed  our  review  of  the  death  penalty 
over  the  past  decade.2  See,  e.  g.9  Caldwell  v.  Mississippi, 

'The  Court's  attempt  to  distinguish  Presnell  on  the  ground  that 
Spaziano  v.  Florida,  468  U.  S.  447  (1984),  rejected  the  assumption  that 
juries  have  equivalent  constitutional  roles  in  determining  guilt  or  innocence 
and  in  determining  capital  sentences,  see  ante,  at  387-388,  n.  4,  is  mis- 
placed. Cole  and  Presnell  hold  that  the  Due  Process  Clause  requires  that 
appellate  courts  review  convictions  and  sentences  "as  [they]  were  deter- 
mined in  the  trial  court."  Cole,  333  U.  S.,  at  202  (emphasis  added). 
Spaziano  simply  held  that  the  Constitution  permits  trial  judges,  rather 
than  trial  juries,  to  make  sentencing  determinations.  See  infra,  at  401, 
and  n.  3. 

2  The  Court's  reliance  on  Sumner  v.  Mata,  449  U.  S.  539  (1981),  is  mis- 
placed. There,  the  Court  held  that  the  presumption  of  correctness  ac- 
corded state-court  findings  of  fact  under  28  U.  S.  C.  §2254(d)  extends  to 
appellate  findings  as  well  as  trial-court  findings.  449  U.  S.,  at  545-547. 
But  the  presumption  of  correctness  is  defeated  by  a  showing  that  "the 
factfinding  procedure  employed  by  the  State  court  was  not  adequate  to 
afford  a  full  and  fair  hearing."  28  U.  S.  C.  §2254(d)(2).  The  question 
whether  state  procedures  are  "adequate"  involves  two  distinct  inquiries. 
The  first  is  whether  the  procedure  employed  in  a  particular  case  in  fact 
afforded  the  defendant  a  full  and  fair  hearing.  The  second  is  whether  the 
procedure  itself  comports  with  due  process.  Bullock  raises  both  those 


400  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

472  U.  S.,  at  328-329;  California  v.  Ramos,  463  U.  S.  992, 
998-999  (1983);  Beck  v.  Alabama,  447  U.  S.  625,  637-638 
(1980);  Lockett  v.  Ohio,  438  U.  S.,  at  604  (plurality  opinion); 
Gardner  v.  Florida,  430  U.  S.  349,  358-359  (1977)  (opinion 
announcing  judgment);  Woodson  v.  North  Carolina,  428 
U.  S.  280,  305  (1976)  (plurality  opinion).  I  believe  that  the 
Eighth  Amendment  not  only  requires  that  the  sentencer 
make  Enmund  findings  before  it  decides  that  a  defendant 
must  die,  but  also  requires  that  the  Enmund  factfinder  be 
present  at  the  trial,  to  see  and  hear  the  witnesses. 

The  Court  long  has  recognized  the  special  competence  of 
trial  courts  which  formed  the  basis  for  Caldwell's  discussion 
of  the  "institutional  limits  on  what  an  appellate  court  can 
do."  472  U.  S.,  at  330.  In  a  variety  of  contexts,  the  Court 
has  relied  upon  the  New  York  Court  of  Appeals'  explanation 


questions:  he  claims  that  in  his  case  the  Mississippi  Supreme  Court  failed  to 
use  adequate  procedures  for  making  Enmund  findings,  and  that  a  proce- 
dure which  places  the  responsibility  for  making  Enmund  findings  on  the 
Mississippi  Supreme  Court  is  inherently  inadequate.  Sumner  v.  Mata 
does  nothing  to  answer  the  latter  question,  because  it  assumes  that  the 
appellate  court  is  constitutionally  a  proper  factfinder.  In  Mata,  this  Court 
explicitly  acknowledged  that  the  trial-court  record  on  which  the  California 
Court  of  Appeal  based  its  findings  concerning  the  suggestiveness  of  a  pho- 
tographic lineup  was  "completely  adequate"  for  that  purpose.  449  U.  S., 
at  543.  Sumner  v.  Mata  therefore  says  nothing  about  how  state-court 
findings  are  to  be  treated  when  the  record  on  which  they  are  based,  by  its 
very  nature,  is  inadequate  to  permit  factfinding  in  the  first  instance. 

Moreover,  the  opinion  in  Mata  does  not  concern  itself  with  explaining 
when  an  appellate  court  is  constitutionally  incompetent  to  find  facts.  That 
an  appellate  court  is  not  always  a  proper  factfinder  is  clear  beyond  doubt. 
Surely,  the  Court  would  not  read  Sumner  v.  Mata  to  foreclose  habeas 
relief  in  cases  where  an  essential  element  of  the  offense  was  not  found  at 
trial.  Cf.  ante,  at  384.  In  §  2254(d)(2)'s  terms,  a  "factfinding  procedure" 
that  vested  in  appellate  courts  the  responsibility  for  determining  an  ele- 
ment of  the  offense  would  not  be  constitutionally  "adequate."  Similarly,  I 
believe,  the  Enmund  findings  concern  the  kind  of  facts  that  can  be  found 
only  by  someone  who  has  actually  seen  and  heard  the  witnesses  when  they 
testified. 


CABANA  v.  BULLOCK  401 

376  BLACKMUN,  J.,  dissenting 

in  Boyd  v.  Boyd,  252  N.  Y.  422,  429,  169  N.  E.  632,  634 
(1930): 

"Face  to  face  with  living  witnesses  the  original  trier  of 
the  facts  holds  a  position  of  advantage  from  which  appel- 
late judges  are  excluded.  In  doubtful  cases  the  exercise 
of  his  power  of  observation  often  proves  the  most  accu- 
rate method  of  ascertaining  the  truth.  .  .  .  How  can  we 
say  the  judge  is  wrong?  We  never  saw  the  witnesses. 
...  To  the  sophistication  and  sagacity  of  the  trial  judge 
the  law  confides  the  duty  of  appraisal.  .  .  .  His  was  the 
opportunity,  the  responsibility  and  the  power  to  decide." 

See,  e.  g.,  Waimuright  v.  Witt,  469  U.  S.  412,  434  (1985) 
(quoting  Boyd);  Marshall  v.  Lonberger,  459  U.  S.  422,  434 
(1983)  (same). 

Our  precedents  are  not  to  the  contrary.  Although  we  held 
in  Spaziano  v.  Florida,  468  U.  S.  447  (1984),  that  neither  the 
Sixth  nor  the  Eighth  Amendment  required  jury  sentencing  in 
capital  cases,  we  made  that  determination  in  the  face  of  a 
Florida  statute  which  "plac[ed]  responsibility  on  the  trial 
judge  to  impose  the  sentence  in  a  capital  case."  Id.,  at  465 
(emphasis  added).  In  the  relevant  respects,  a  trial  judge  in 
a  capital  case  is  more  like  a  jury  than  he  is  like  an  appellate 
court.  Like  the  jury,  he  has  seen  the  witnesses,  and  is  well 
positioned  to  make  those  "determinations  of  demeanor  and 
credibility  that  are  peculiarly  within  a  trial  judge's  province." 
Waimuright  v.  Witt,  469  U.  S.,  at  428. 3 


8  Every  State  with  a  death  penalty  statute  has  implicitly  recognized  this 
essential  point,  even  though  not  all  of  them  have  explicitly  held  that 
Enmund  findings  must  be  made  by  the  trial  court.  The  seven  States 
whose  schemes  involve  judge  sentencing  all  vest  the  power  to  impose 
sentence  in  a  judge  who  actually  has  seen  the  presentation  of  evidence 
and  confronted  the  defendant.  See  Ala.  Code  §  13A-5-46  (1982);  Ariz. 
Rev.  Stat.  Ann.  §13-703  (Supp.  1985);  Fla.  Stat.  §921.141  (1985);  Idaho 
Code  §  19-2515  (Supp.  1985);  Ind.  Code  §  35-50-2-9  (Supp.  1985);  Mont. 
Code  Ann.  §46-18-301  (1985);  Neb.  Rev.  Stat.  §§29-2520  and  29-2521 


402  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 


The  Court's  discussion  of  "the  nature  of  our  ruling  in 
Enmund"  ante,  at  384,  reveals  a  reliance  on  three  premises: 
first,  Enmund  "does  not  impose  any  particular  form  of  proce- 
dure upon  the  States,"  ante,  at  386  (emphasis  omitted);  sec- 
ond, Enmund  "  'does  not  affect  the  state's  definition  of  any 
substantive  offense,  even  a  capital  offense/"  ante,  at  385, 
quoting  Reddix  v.  Thigpen,  728  F.  2d  705,  709  (CA5),  cert, 
denied,  469  U.  S.  990  (1984);  and,  third,  Enmund  is  a  "sub- 
stantive limitation  on  sentencing"  amenable  to  traditional 
proportionality  review,  ante,  at  386.  None  of  these  proposi- 
tions justifies  the  Court's  holding  today. 

That  we  have  refused  "'to  say  that  there  is  any  one  right 
way  for  a  State  to  set  up  its  capital  sentencing  scheme,'" 
ante,  at  387,  quoting  Spaziano,  468  U.  S.,  at  464,  does  not 
mean  that  there  are  no  wrong  ways.  As  has  been  shown,  a 
capital-sentencing  scheme  that  permits  an  appellate  court  to 

(1979).  No  State  has  placed  the  sentencing  power,  as  opposed  to  the 
power  to  review  sentences,  in  an  appellate  court.  Every  State  provides 
for  an  evidentiary  sentencing  hearing,  to  be  conducted  in  front  of  the  sen- 
tencing authority,  be  it  judge  or  jury. 

Enmund  identified  17  States  in  which  the  then-existing  death  penalty 
statutes  potentially  countenanced  the  execution  of  defendants  who  neither 
killed,  attempted  to  kill,  or  intended  to  kill:  Arizona,  California,  Connecti- 
cut, Florida,  Georgia,  Idaho,  Indiana,  Mississippi,  Montana,  Nebraska, 
Nevada,  North  Carolina,  Oklahoma,  South  Carolina,  South  Dakota,  Ten- 
nessee, and  Wyoming.  See  458  U.  S.,  at  789,  n.  5;  id.,  at  792,  nn.  12  and 
13.  Since  Enmund,  seven  of  those  States  have  addressed  the  issue  and 
apparently  have  concluded  that  the  sentencer  must  make  Enmund  findings 
before  imposing  sentence.  See  State  v.  McDamel,  136  Ariz.  188,  199,  665 
P.  2d  70,  81  (1983);  People  v.  Garcia,  36  Cal.  3d  539,  556-557,  684  P.  2d 
826,  835-837  (1984),  cert,  denied,  469  U.  S.  1229  (1985);  Allen  v.  State,  253 
Ga.  390,  395,  n.  3,  321  S.  E.  2d  710,  715,  n,  3  (1984),  cert,  denied,  470  U.  S. 
1059  (1985);  Miss.  Code  Ann.  §  99-19-101(7)  (Supp.  1985);  State  v.  Stokes, 
308  N.  C.  634,  651-652,  304  S.  E.  2d  184,  195  (1983);  Hatch  v.  Oklahoma, 
662  P.  2d  1377,  1382-1383  (Okla.  Crim.  App.  1983);  State  v.  Peterson,  287 
S.  C.  244,  248,  335  S.  E.  2d  800,  802  (1985).  Five  others— Connecticut, 
Montana,  Nebraska,  Nevada,  and  South  Dakota— have  not  yet  considered 
cases  raising  an  Enmund  claim. 


CABANA  v.  BULLOCK  403 

376  BLACKMUN,  J.,  dissenting 

make  Enmund  findings  sacrifices  reliability  needlessly  to  no 
discernible  end,  and  cannot  satisfy  the  Eighth  Amendment. 

That  Enmund  does  not  restrict  the  State's  power  to  define 
offenses  is  equally  beside  the  point.  A  State's  decision  to 
define  a  crime  as  "capital"  cannot  "automatically  .  .  .  dictate 
what  should  be  the  proper  penalty,"  Lockett  v.  Ohio,  438 
U.  S.,  at  602  (plurality  opinion),  and  does  not  empower  the 
State  to  execute  a  defendant  who  neither  killed,  nor  at- 
tempted to  kill,  nor  intended  to  kill.  In  Coker  v.  Georgia, 
433  U.  S.  584  (1977),  for  example,  Georgia's  definition  of  rape 
as  a  capital  offense  did  not  dispose  of  the  Eighth  Amendment 
issue.  Both  JUSTICE  O'CONNOR'S  dissent  in  Enmund  and 
the  Court  of  Appeals'  opinion  in  Reddix— the  authorities 
upon  which  the  Court  relies — recognize  the  distinction,  which 
seems  to  elude  the  Court,  between  defining  an  offense  and 
being  entitled  to  execute  a  defendant.  See  Enmund,  458 
U.  S.,  at  810,  and  n.  19  (O'CONNOR,  J.,  dissenting)  (Enmund 
did  not  contest  his  conviction  for  felony  murder;  his  "sole 
challenge  is  to  the  penalty  imposed");  Reddix,  728  F.  2d,  at 
709  (the  State  may  convict  a  defendant  of  a  capital  crime 
without  requiring  an  instruction  on  intent;  "Enmund,  how- 
ever, will  'bar  a  death  penalty' "  absent  such  an  instruction, 
quoting  Skillern  v.  Estelle,  720  F.  2d  839,  847  (CA5  1983) 
(emphasis  in  Skillern),  cert,  denied,  469  U.  S.  873  (1984)). 
A  State  remains  free  to  define  felony  murder  as  it  wishes;  but 
it  can  execute  a  felony  murderer  who  has  been  sentenced  to 
death  only  by  a  sentencer  who  has  determined  that  he  pos- 
sesses the  degree  of  culpability  discussed  in  Enmund. 

The  Court  also  would  justify  its  holding  by  reference  to  the 
discussion  of  Eighth  Amendment  principles  of  proportional- 
ity in  Solem  v.  Helm,  463  U.  S.  277  (1983).  The  Court's 
discussion  mistakenly  amalgamates  review  and  essentially 
de  novo  factfinding.  Certainly,  the  Court  is  correct  that 
"the  decision  whether  a  sentence  is  so  disproportionate  as  to 
violate  the  Eighth  Amendment  in  any  particular  case  .  .  .  has 
long  been  viewed  as  one  that  a  trial  judge  or  an  appellate 


404  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

court  is  fully  competent  to  make."     Ante,  at  386.      But  the 
Eighth  Amendment  demands  more  than  that  the  reviewing 
court  decide  whether  the  sentencer  has  properly  weighed  the 
seriousness  of  the  offense  and  the  severity  of  the  punish- 
ment.    The  Eighth  Amendment  binds  the  sentencer  as  well. 
The  joint  opinions  in  Gregg  v.  Georgia,  428  U.  S.  153  (1976), 
Prqffitt  v.  Florida,  428  U.  S.  242  (1976),  and  Jurek  v.  Texas, 
428  U.  S.  262  (1976),  all  explicitly  rested  their  approval  of  the 
capital-sentencing  schemes  before  them  on  the  combination 
of  channeled  factfinding  by  the  sentencer  and  appellate  re- 
view.     In  Gregg,  an  "important  additional  safeguard"  was 
provided  by  the  Georgia  Supreme  Court's  review  of  "whether 
the  evidence  supports  the  jury's  finding  of  a  statutory  ag- 
gravating circumstance,"  as  well  as  by  the  exercise  of  com- 
parative proportionality  review.      428  U.  S.,    at   198.       In 
Proffitt,  "meaningful  appellate  review"  was  provided  because 
the  appellate  court  had  before  it  written  findings  justifying 
the  imposition  of  the  death  penalty.     428  U.  S.,  at  251.      In 
Jurek,  the  jury  had  to  make  specific  findings,  which  were 
then  subject  to  appellate  review.      428  U.  S.,  at  269,  276. 
To  permit  States  to  collapse  factfinding  and  review  into  one 
proceeding  is  to  abandon  one  of  the  most  critical  protections 
afforded  by  every  capital-sentencing  scheme  to  which  the 
Court  previously  has  given  its  approval. 

Enmund  "insist[ed]  on  'individualized  consideration  as  a 
constitutional  requirement  in  imposing  the  death  sentence,'" 
458  U.  S.,  at  798  (emphasis  added),  quoting  Lockett  v.  Ohio, 
438  U.  S.,  at  605,  and  not  merely  in  reviewing  the  sentence 
imposed.  The  sentencer  is  not  relieved  of  the  duty  to  con- 
sider whether  the  severity  of  the  defendant's  crime  justifies 
the  death  penalty  by  the  availability  of  proportionality  re- 
view. Enmund  places  a  substantive  limitation  on  a  process 
that  precedes  proportionality  review. 


This    case    demonstrates    graphically    why    a    trial-court 
sentencer  must  make  the  Enmund  determination.      Under 


CABANA  v.  BULLOCK  405 

376  BLACKMUN,  J.,  dissenting 

Mississippi  law,  "the  jury  is  the  sole  player  in  the  judicial 
process  who  may  vote  to  send  an  accused  to  die."  Wiley  v. 
State,  449  So.  2d  756,  762  (Miss.  1984);  see  also  Williams  v. 
State,  445  So.  2d  798,  811  (Miss.  1984),  cert,  denied,  469 
U.  S.  1117  (1985).  To  the  extent  that  Enmund  places  a  sub- 
stantive limitation  on  sentencing,  then,  Bullock  is  entitled  to 
insist  that  the  sentencing  jury  heed  its  limits.  Caldwell  sug- 
gests that  to  postpone  Bullock's  right  to  an  Enmund  deter- 
mination is  effectively  to  deprive  him  of  that  right  because,  in 
Mississippi,  capital  review  is  "conducted  with  a  presumption 
of ...  correctness."  Wiley,  449  So.  2d,  at  762;  see  Caldwell, 
472  U.  S.,  at  331;  see  also  Miss.  Code  Ann.  §99-19-105 
(Supp.  1985).  The  Mississippi  Supreme  Court  examines  the 
record  solely  to  see  whether  a  reasonable  jury  could  have 
concluded  that  Bullock  killed,  attempted  to  kill,  or  intended 
to  kill,  rather  than  whether  Bullock  in  fact  did  any  of  those 
things.  Saying  that  Bullock  might  have  acted  with  the 
requisite  culpability  does  not  satisfy  the  constitutional 
requirement  that  Bullock  actually  have  acted  with  that  de- 
gree of  blame  worthiness. 

Hicks  v.  Oklahoma,  447  U.  S.  343  (1980),  makes  clear  that 
the  former  inquiry  is  simply  insufficient  to  satisfy  due  proc- 
ess. In  Hicks,  the  Court  vacated  a  sentence  imposed,  as 
Oklahoma  law  required,  by  a  jury  which  had  relied  upon  an 
invalid  statutory  provision  despite  the  fact  that  the  Court  of 
Criminal  Appeals  had  affirmed  the  sentence  as  within  the 
permissible  range.  Hicks  held  that  when  a  State  vests  the 
sentencing  power  in  the  trial  jury,  a  defendant  has  "a  sub- 
stantial and  legitimate  expectation  that  he  will  be  deprived  of 
his  liberty  only  to  the  extent  determined  by  the  jury  in  the 
exercise  of  its  statutory  discretion."  Id.,  at  346.  A  state 
appeals  court  cannot  reform  a  defendant's  sentence,  thus  de- 
nying him  the  right  actually  to  be  sentenced  by  a  jury  "simply 
on  the  frail  conjecture  that  a  jury  might  have  imposed  a  sen- 
tence equally  as  harsh  as  that  [affirmed  by  the  appellate 
court].  Such  an  arbitrary  disregard  of  the  petitioner's  right 


406  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

to  liberty  is  a  denial  of  due  process  of  law."     Ibid,  (emphasis 
in  original). 

As   for   reliability,    the   Court    buries    in    a    footnote    an 
acknowledgment  that  "the  question  whether  the  defendant 
killed,  attempted  to  kill,  or  intended  to  kill  might  in  a  given 
case  turn  on  credibility  determinations  that  could  not  be  ac- 
curately made  by  an  appellate  court  on  the  basis  of  a  paper 
record,  cf.  Anderson  v.  Bessemer  City,  470  U.  S.  564,  575 
(1985);    Wainwright  v.    Witt,   469   U.  S.    412,    429   (1985)." 
Ante,  at  388,  n.  5.     The  Court  fails  to  notice  that  this  is  that 
"given  case":  Bullock  took  the  stand,  at  both  the  guilt  and 
penalty  phases  of  his  trial,  to  deny  having  killed,   having 
attempted  to  Mil,  or  having  intended  to  kill  Dickson.      See 
Tr.  956,  983,  996,  1190.      I  have  read  the  trial  transcript. 
Although  I  think  the  evidence  is  consistent  with  Bullock's 
claim  that  the  killing  of  Mark   Dickson   resulted   from   a 
drunken  brawl  between  Tucker  and  Dickson  that  tragically 
got  out  of  hand,  cf.  Bullock  v.  Lucas,  743  F.  2d,  at  248  (con- 
curring opinion),  I  must  concede  that  a  jury  or  judge  who  saw 
Bullock  testify  might  well  think  he  lied.     I  fail,  however,  to 
see  how  an  appellate  court  confidently  could  conclude,  with- 
out any  indication  from  anyone  who  actually  saw  him  testify, 
that  Bullock's  account  was  so  unworthy  of  belief  that  he  was 
properly  condemned  to  death. 

Moreover,  nothing  in  the  Court's  opinion  suggests  that  this 
case  is  at  all  unusual  in  this  respect.4     To  permit  the  States 


4 1  assume  that  many  capital  defendants  who  neither  killed,  attempted 
to  kill,  nor  intended  to  kill  take  the  stand,  at  least  at  the  sentencing  hear- 
ing, since  they  know  that  if  they  convince  the  sentencer  of  their  diminished 
level  of  personal  culpability  their  lives  will  be  spared.  The  considerations 
of  federalism  and  comity  identified  by  the  Court  are  hardly  best  served  by 
allowing  the  State  to  construct  capital-sentencing  schemes  that  require 
federal  habeas  courts  to  examine  in  every  case  the  nature  of  the  evi- 
dence presented  in  order  to  determine  whether  the  State's  regular  capital- 
sentencing  procedure  is  satisfactory.  It  is  far  better,  it  seems  to  me,  to 
establish  a  bright-line  rule  requiring  the  findings  to  be  made  by  the  trial 
court,  especially  since  the  Court  has  failed  to  identify  a  single  reason  why  a 


CABANA  v.  BULLOCK  407 

376  STEVENS,  J.,  dissenting 

to  construct  capital-sentencing  schemes  that  by  their  very 
nature  will  be  inadequate  in  cases  such  as  this  strikes  me  as 
an  abdication  of  our  responsibility  under  the  Eighth  Amend- 
ment to  ensure  that  the  system  of  capital  punishment,  as  well 
as  the  imposition  of  the  penalty  on  individual  defendants, 
meets  the  Constitution's  requirements.5 

Here,  Bullock  had  a  legitimate  expectation  that  the 
sentencing  jury  would  consider  his  personal  responsibility 
and  moral  guilt  before  deciding  to  send  him  to  die.  Under 
Enmundy  the  only  way  to  guarantee  that  such  consideration 
has  been  given  is  to  require  the  sentencer  to  determine  that 
the  defendant  either  killed,  or  attempted  to  kill,  or  intended 
to  kill.  That  a  jury  might  or  could  have  made  such  a  deter- 
mination hardly  provides  a  guarantee  that  this  jury  did.  Be- 
cause I  believe  every  defendant  is  entitled  to  that  guarantee, 
I  would  vacate  the  death  sentence  and  remand  the  case  with 
instructions  to  provide  Bullock  with  a  sentencing  hearing 
before  a  jury.  Inasmuch  as  the  majority  refuses  to  take 
this  essential  step,  I  dissent. 

JUSTICE  STEVENS,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

The  justification  for  executing  the  defendant  depends  on 
the  degree  of  his  culpability — "what  [his]  intentions,  expecta- 

State  legitimately  could  prefer  to  vest  the  factfinding  function  in  an  appel- 
late court. 

5  The  Court's  refusal  to  "determine  what  factfinding  procedures  would 
be  adequate  in  the  particular  case  before  us,"  ante,  at  388,  n.  5,  strikes  me 
as  somewhat  perverse.  Although  most  of  the  cases  we  hear  concern  broad 
legal  questions  the  resolution  of  which  will  affect  many  persons  other  than 
the  actual  parties,  this  should  not  blind  us  to  the  fact  that  our  authority  to 
reach  those  questions  rests  on  the  presence  of  a  concrete  case.  The  ques- 
tion as  to  what  procedures  would  be  adequate  in  this  case  is  not,  as  the 
Court  suggests,  "hypothetical."  Ibid.  The  believability  of  Bullock's  tes- 
timony is  the  critical  factor,  and  the  credibility  judgment  can  be  made,  in 
the  first  instance,  only  by  someone  who  has  seen  him  testify.  If  anything 
is  "hypothetical,"  it  is  the  Court's  assumption  that  an  appellate  factfinding 
procedure  that  is  clearly  inadequate  for  the  actual  case  before  it  will  be 
adequate  in  hypothetical  cases  not  before  it. 


408  OCTOBER  TERM,  1985 

STEVENS,  J.,  dissenting  474  U.  S. 

tions,  and  actions  were.  American  criminal  law  has  long 
considered  a  defendant's  intention — and  therefore  his  moral 
guilt — to  be  critical  to  'the  degree  of  [his]  criminal  culpabil- 
ity,' Mullaney  v.  Wilbur,  421  U.  S.  684,  698  (1975),  and 
the  Court  has  found  criminal  penalties  to  be  unconstitution- 
ally excessive  in  the  absence  of  intentional  wrongdoing. " 
Enmund  v.  Florida,  458  U.  S.  782,  800  (1982).  The  Eighth 
Amendment  therefore  precludes  the  imposition  of  a  death 
sentence  upon  a  defendant  whose  "crime  did  not  reflect  'a 
consciousness  materially  more  "depraved"  than  that  of  any 
person  guilty  of  murder/  "  Id. ,  at  800-801. 

Because   the    finding    of  moral    culpability    required    by 
Enmund  is  but  one  part  of  a  judgment  that  "is  ultimately  un- 
derstood only  as  an  expression  of  the  community's  outrage— 
its  sense  that  an  individual  has  lost  his  moral  entitlement  to 
live/'*  I  believe  that  the  decision  whether  a  death  sentence 
is  the  only  adequate  response  to  the  defendant's  moral  cul- 
pability must  be  made  by  a  single  decisionmaker,  be  it  the 
trial  court  or  the  jury.     The  State  of  Mississippi  has  wisely 
decided  that  the  jury  is  the  decisionmaker  that  is  best  able  to 
"express  the  conscience  of  the  community  on  the  ultimate 
question  of  life  or  death."     Witherspoon  v.  Illinois,  391  U.  S. 
510,  519  (1968).     As  the  Court  points  out,  ante,  at  383-384,  a 
Mississippi  jury  has  not  found  that  respondent  Bullock  killed, 
attempted  to  kill,  or  intended  that  a  killing  take  place  or  that 
lethal  force  be  used.      It  follows,  in  my  view,  that  a  Missis- 
sippi jury  has  not  determined  that  a  death  sentence  is  the 
only  response  that  will  satisfy  the  outrage  of  the  community, 
and  that  a  new  sentencing  hearing  must  be  conducted  if  re- 
spondent is  ultimately  to  be  sentenced  to  die.     In  accordance 
with  this  reasoning,  I  would  affirm  the  judgment  of  the  Court 
of  Appeals. 


*Spaziano  v.  Florida,  468  U.  S.  447,  467  (1984)  (STEVENS,  J.,  concur- 
ring in  part  and  dissenting  in  part). 


TRANSCONTINENTAL  PIPE  LINE  u  STATE  OIL  &  GAS  BD.      409 

Syllabus 


TRANSCONTINENTAL  GAS  PIPE  LINE  CORP.  v. 

STATE  OIL  AND  GAS  BOARD  OF 

MISSISSIPPI  ET  AL. 

APPEAL  FROM  THE  SUPREME  COURT  OF  MISSISSIPPI 

No.  84-1076.     Argued  October  8,  1985— Decided  January  22,  1986 

In  1978,  during  a  period  of  natural  gas  shortage,  appellant  interstate  pipe- 
line entered  into  long-term  contracts  with  appellee  Getty  Oil  Co.  and 
others  to  purchase  natural  gas  from  a  common  gas  pool  in  Mississippi. 
The  contract  with  Getty  obligated  appellant  to  buy  only  Getty's  shares  of 
the  gas  produced  by  the  wells  Getty  operated.  Demand  was  sufficiently 
high  that  appellant  also  purchased,  on  a  noncontract  basis,  the  produc- 
tion shares  of  smaller  owners,  such  as  appellee  Coastal  Exploration, 
Inc.,  in  the  Getty  wells.  But  in  1982,  consumer  demand  dropped  signifi- 
cantly, and  appellant  began  to  have  difficulty  in  selling  its  gas.  It  there- 
fore announced  that  it  would  no  longer  purchase  gas  from  owners  with 
whom  it  had  not  contracted.  Getty  cut  back  production  so  that  its  wells 
produced  only  that  amount  of  gas  equal  to  its  ownership  interest  in  the 
maximum  flow.  This  deprived  Coastal  of  revenue,  because  none  of  its 
share  of  the  common  pool  gas  was  being  produced.  Coastal  then  filed  a 
petition  with  appellee  Mississippi  State  Oil  and  Gas  Board  (Board),  ask- 
ing it  to  enforce  statewide  Rule  48  requiring  gas  purchasers  to  purchase 
gas  without  discrimination  in  favor  of  one  producer  against  another  in 
the  same  source  of  supply.  The  Board  found  appellant  in  violation  of 
Rule  48  and  ordered  it  to  start  taking  gas  "ratably"  (i.e.,  in  proportion  to 
the  various  owners'  shares)  from  the  gas  pool,  and  to  purchase  the  gas 
under  nondiscriminatory  price  and  take-or-pay  conditions.  On  appeal, 
the  Mississippi  Circuit  Court  held  that  the  Board's  authority  was  not 
pre-empted  by  the  Natural  Gas  Act  of  1938  (NGA)  or  the  Natural  Gas 
Policy  Act  of  1978  (NGPA),  and  that  the  NGPA  effectively  overruled 
Northern  Natural  Gas  Co.  v.  State  Corporation  Comm'n  of  Kansas,  372 
U.  S.  84,  which  struck  down,  on  pre-emption  grounds,  a  state  regulation 
virtually  identical  to  the  Board's  order.  The  Mississippi  Supreme  Court 
affirmed. 

Held:  The  Board's  ratable-take  order  is  pre-empted  by  the  NGA  and 
NGPA.  Pp.  417-425. 

(a)  Congress,  in  enacting  the  NGPA,  did  not  alter  the  characteristics 
of  the  comprehensive  regulatory  scheme  that  provided  the  basis  in 
Northern  Natural  for  the  finding  of  pre-emption.  The  Board's  order  di- 
rectly undermines  Congress'  determination  in  enacting  the  NGPA  that 
the  supply,  demand,  and  price  of  high-cost  gas  be  determined  by  market 


410  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

forces.  To  the  extent  that  Congress  in  the  NGPA  denied  the  Federal 
Energy  Regulatory  Commission  (FERC)  the  power  to  regulate  directly 
the  prices  at  which  pipelines  purchase  high-cost  gas,  it  did  so  because  it 
wanted  to  leave  determination  of  supply  and  first-sale  price  to  the  mar- 
ket. In  light  of  Congress'  intent  to  move  toward  a  less  regulated  na- 
tional natural  gas  market,  its  decision  to  remove  jurisdiction  from  FERC 
cannot  be  interpreted  as  an  invitation  to  the  States  to  impose  additional 
regulations.  Pp.  417-423. 

(b)  The  Board's  order  disturbs  the  uniformity  of  the  federal  scheme, 
since  interstate  pipelines  will  be  forced  to  comply  with  varied  state  regu- 
lations of  their  purchasing  practices.  The  order  would  also  have  the 
effect  of  increasing  the  ultimate  price  to  consumers,  thus  frustrating 
the  federal  goal  of  ensuring  low  prices  most  effectively.  Pp.  423-425. 
457  So.  2d  1298,  reversed. 

BLACKMUN,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER, 
C.  J.,  and  BRENNAN,  WHITE,  and  MARSHALL,  JJ.,  joined.  REHNQUIST, 
J. ,  filed  a  dissenting  opinion,  in  which  POWELL,  STEVENS,  and  O'CONNOR, 
JJ.,  joined,  post,  p.  425. 

John  Marshall  Grower  argued  the  cause  for  appellant. 
With  him  on  the  briefs  were  Jefferson  D.  Stewart,  R.  Wilson 
Montjoy  //,  R.  V.  Loftin,  Jr.,  and  Thomas  E.  Skains. 

Jerome  M.  Feit  argued  the  cause  for  the  United  States  et 
al.  as  amid  curiae  urging  reversal.  With  him  on  the  brief 
were  Solicitor  General  Lee,  William  H.  Satterfield,  Joseph 
S.  Davies,  and  John  H.  Conway. 

Ed  Davis  Noble,  Jr.,  Assistant  Attorney  General  of  Missis- 
sippi, argued  the  cause  for  appellee  State  Oil  and  Gas  Board 
of  Mississippi.  With  him  on  the  brief  were  Edwin  Lloyd 
Pittman,  Attorney  General,  and  R.  Lloyd  Arnold,  Assistant 
Attorney  General.  Glenn  Gates  Taylor  argued  the  cause  for 
appellee  Coastal  Exploration,  Inc.  With  him  on  the  brief 
was  Kenneth  I.  Franks.  Walker  L.  Watters  and  David  T. 
Cobb  filed  a  brief  for  appellee  Getty  Oil  Co.* 

*Briefs  of  amid  curiae  urging  reversal  were  filed  for  the  Interstate 
Natural  Gas  Association  of  America  by  Harold  L.  Talisman  and  John  H. 
Cheatham  III;  and  for  Associated  Gas  Distributors  by  Frederic  Moring. 

Briefs  of  amid  curiae  urging  affirmance  were  filed  for  the  State  of  Texas 
by  Jim  Mattox,  Attorney  General,  David  R.  Richards,  Executive  Assist- 


TRANSCONTINENTAL  PIPE  LINE  v.  STATE  OIL  &  GAS  BD.     411 
409  Opinion  of  the  Court 

JUSTICE  BLACKMUN  delivered  the  opinion  of  the  Court. 

We  are  confronted  again  with  the  issue  of  a  state  regula- 
tion requiring  an  interstate  pipeline  to  purchase  gas  from  all 
the  parties  owning  interests  in  a  common  gas  pool.  The  pur- 
chases would  be  in  proportion  to  the  owners'  respective  inter- 
ests in  the  pool,  and  would  be  compelled  even  though  the 
pipeline  has  pre-existing  contracts  with  less  than  all  of  the 
pool's  owners. 

This  Court,  in  Northern  Natural  Gas  Co.  v.  State  Corpora- 
tion Comm'n  of  Kansas,  372  U.  S.  84  (1963),  struck  down,  on 
pre-emption  grounds,  a  virtually  identical  regulation.  In  the 
present  case,  however,  the  Supreme  Court  of  Mississippi 
ruled  that  the  subsequently  enacted  Natural  Gas  Policy  Act 
of  1978  (NGPA),  92  Stat.  3351,  15  U.  S.  C.  §3301  et  seq., 
effectively  nullified  Northern  Natural  by  vesting  regulatory 
power  in  the  States  over  the  wellhead  sale  of  gas.  The  Mis- 
sissippi Supreme  Court  went  on  to  hold  that  the  Mississippi 
regulation  did  not  impermissibly  burden  interstate  com- 
merce. Because  of  the  importance  of  the  issues  in  the  func- 
tioning of  the  interstate  market  in  natural  gas,  we  noted 
probable  jurisdiction.  470  U.  S.  1083  (1985). 

I 

The  Harper  Sand  gas  pool  lies  in  Marion  County  in  south- 
ern Mississippi.  Harper  gas  is  classified  as  ''high-cost  natu- 
ral gas"  under  NGPA's  §  107(c)(l),  15  U.  S.  C.  §3317(c)(l), 
because  it  is  taken  from  a  depth  of  more  than  15,000  feet. 
At  the  time  of  the  proceedings  before  appellee  State  Oil  and 
Gas  Board  of  Mississippi,  six  separate  wells  drew  gas  from 
the  pool.  A  recognized  property  of  a  common  pool  is  that,  as 
gas  is  drawn  up  through  one  well,  the  pressure  surrounding 


ant  Attorney  General,  and  Larry  J.  Laurent  and  Manual  Rios,  Assistant 
Attorneys  General;  and  for  the  National  Governors'  Association  by  Benna 
Ruth  Solomon  and  Joyce  Holmes  Benjamin. 

David  Crump  filed  a  brief  for  the  Legal  Foundation  of  America  as 
amicus  curiae. 


412  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

that  well  is  reduced  and  other  gas  flows  towards  the  area 
of  the  producing  well.  Thus,  one  well  can  drain  an  entire 
pool,  even  if  the  gas  in  the  pool  is  owned  by  several  different 
owners.  The  interests  of  these  other  owners  often  are  re- 
ferred to  as  "correlative  rights."  See,  e.  g.,  Miss.  Code 
Ann.  §53-1-1  (1972  and  Supp.  1985). 

Some  owners  of  interests  in  the  Harper  Sand  pool,  such  as 
appellee  Getty  Oil  Co.,  actually  drill  and  operate  gas  wells. 
Others,   such  as  appellee   Coastal  Exploration,    Inc.,    own 
smaller  working  interests  in  various  wells.     Normally,  these 
lesser  owners  rely  on  the  well  operators  to  arrange  the  sales 
of  their  shares  of  the  production,  see  App.  26,  although  some 
nonoperator  owners  contract  directly  either  with  the  pipeline 
that  purchases  the  operator's  gas  or  with  other  customers. 
Appellant  Transcontinental   Gas   Pipe    Line    Corporation 
(Transco)  operates  a  natural  gas  pipeline  that  transports  gas 
from  fields  in  Texas,  Louisiana,  and  Mississippi  for  resale  to 
customers  throughout  the  Northeast.      Beginning  in  1978, 
Transco  entered  into  35  long-term  contracts  with  Getty  and 
two  other  operators,  Florida  Exploration  Co.  and  Tomlinson 
Interests,  Inc.,  to  purchase  gas  produced  from  the  Harper 
Sand  pool.      In  line  with  prevailing  industry  practice,  the 
contracts  contained  "take-or-pay"  provisions.      These  essen- 
tially required  Transco  either  to  accept  currently  a  certain 
percentage  of  the  gas  each  well  was  capable  of  producing,  or 
to  pay  the  contract  price  for  that  gas  with  a  right  to  take 
delivery  at  some  later  time,   usually  limited   in   duration. 
Take-or-pay  provisions  enable  sellers  to  avoid  fluctuations  in 
cash  flow  and  are  therefore  thought  to  encourage  invest- 
ments in  well  development.     See  Pierce,  Natural  Gas  Regu- 
lation, Deregulation,  and  Contracts,  68  Va.  L.  Rev.  63,  77-79 
(1982). 

Transco  entered  into  these  contracts  during  a  period  of 
national  gas  shortage.  Transco's  contracts  with  Getty  and 
Tomlinson  obligated  it  to  buy  only  Getty's  and  Tomlinson's 
own  shares  of  the  gas  produced  by  the  wells  they  operated, 


TRANSCONTINENTAL  PIPE  LINE  u  STATE  OIL  &  GAS  BD.     413 
409  Opinion  of  the  Court 

while  its  contracts  with  Florida  Exploration  required  it  to 
take  virtually  all  the  gas  Florida  Exploration's  wells  pro- 
duced, regardless  of  its  ownership.  See  App.  107.  But  de- 
mand was  sufficiently  high  that  Transco  also  purchased,  on  a 
noncontract  basis,  the  production  shares  of  smaller  owners, 
such  as  Coastal,  in  the  Getty  and  Tomlinson  wells.  Id.,  at 
155.  In  the  spring  of  1982,  however,  consumer  demand  for 
gas  dropped  significantly,  and  Transco  began  to  have  diffi- 
culty selling  its  gas.  It  therefore  announced  in  May  1982 
that  it  would  no  longer  purchase  gas  from  owners  with  whom 
it  had  not  actually  contracted.  See,  e.  g.,  id.,  at  41-42. 
Transco  refused  Coastal's  request  that  it  be  allowed  to  ratify 
Getty's  contract,  and  made  a  counteroffer,  which  Coastal 
refused,  either  to  purchase  Coastal's  gas  at  a  significantly 
lower  price  than  it  was  obligated  to  pay  under  its  existing 
contracts  or  to  transport  Coastal's  gas  to  other  customers  if 
Coastal  arranged  such  sales.  See  id.,  at  66-69.  Fifty-five 
other  noncontract  owners  of  Harper  gas,  however,  did  accept 
such  offers  from  Transco.  See  457  So.  2d  1298,  1309  (Miss. 
1984). 

Getty  and  Tomlinson  cut  back  production  so  that  their 
wells  produced  only  that  amount  of  gas  equal  to  their  owner- 
ship interests  in  the  maximum  flow.  The  immediate  eco- 
nomic effect  of  the  cutback  was  to  deprive  Coastal  of  reve- 
nue, because  none  of  its  share  of  the  Harper  gas  was  being 
produced.  The  ultimate  geological  effect,  however,  is  that 
gas  will  flow-  from  the  Getty-Tomlinson  areas  of  the  field, 
which  are  producing  at  less  than  capacity,  to  the  Florida 
Exploration  areas;  gas  owned  by  interests  that  produce 
through  Getty's  and  Tomlinson's  wells  thus  may  be  siphoned 
away.  Moreover,  because  of  the  decrease  in  pressure,  gas 
left  in  the  ground,  such  as  Coastal's  gas,  may  become  more 
costly  to  recover  and  therefore  its  value  at  the  wellhead  may 
decline. 


414  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

II 

On  July  29,  1982,  Coastal  filed  a  petition  with  appellee 
State  Oil  and  Gas  Board  of  Mississippi,  asking  the  Board  to 
enforce  its  Statewide  Rule  48,  a  "ratable-take"  requirement. 
Rule  48  provides: 

"Each  person  now  or  hereafter  engaged  in  the  busi- 
ness of  purchasing  oil  or  gas  from  owners,  operators,  or 
producers  shall  purchase  without  discrimination  in  favor 
of  one  owner,  operator,  or  producer  against  another  in 
the  same  common  source  of  supply." 

Rule  48  never  before  had  been  employed  to  require  a  pipeline 
actually  to  purchase  noncontract  gas;  rather,  its  sole  purpose 
appears  to  have  been  to  prevent  drainage,  that  is,  to  prevent 
a  buyer  from  contracting  with  one  seller  and  then  draining  a 
common  pool  of  all  its  gas.  See  457  So.  2d,  at  1306.  The 
Gas  Board  conducted  a  3-day  evidentiary  proceeding.  It 
found  Transco  in  violation  of  Rule  48,  and,  by  its  Order 
No.  409-82,  filed  Oct.  13,  1982, l  ordered  Transco  to  start 
taking  gas  "ratably"  (i.  e.,  in  proportion  to  the  various 
owners'  shares)  from  the  Harper  Sand  pool,  and  to  pur- 
chase the  gas  under  nondiscriminatory  price  and  take-or-pay 
conditions. 

Transco  appealed  the  Gas  Board's  ruling  to  the  Circuit 
Court  of  the  First  Judicial  District  of  Hinds  County,  Miss. 
In  the  parts  of  its  opinion  relevant  to  this  appeal,  the  Circuit 
Court  held  that  the  Gas  Board's  authority  was  not  pre- 

1  Order  No.  409-82  directed  Transco  "forthwith  to  comply  with  State- 
wide Rule  48  of  the  State  Oil  and  Gas  Board  of  Mississippi  in  its  purchases 
of  gas  from  the  said  Harper  Sand  Gas  Pool  in  Greens  Creek  and  East  Mor- 
gantown  Fields,  and  .  .  .  ratably  take  and  purchase  gas  without  discrimina- 
tion in  favor  of  one  owner,  operator  or  producer  against  another  in  the  said 
common  source  of  [sic]  pool;  and,  specifically,  in  the  event  it  so  chooses 
and  elects  to  take  and  purchase  gas  produced  from  the  said  common  pool, 
Transco  shall  ratably  take  and  purchase  without  discrimination  in  favor  of 
the  operators  Getty  and  Tomlinson  against  Coastal,  the  Fairchilds,  and 
Inexco."  App.  to  Pet.  for  Cert,  112a. 


TRANSCONTINENTAL  PIPE  LINE  v.  STATE  OIL  &  GAS  BD.      415 
409  Opinion  of  the  Court 

empted  by  either  the  Natural  Gas  Act  of  1938  (NGA), 
ch.  556,  52  Stat.  821,  15  U.  S.  C.  §  717  et  seq.,  or  the  NGPA; 
that  the  NGPA  effectively  overruled  Northern  Natural;  and 
that  the  Gas  Board's  order  did  not  run  afoul  of  the  Commerce 
Clause  of  the  United  States  Constitution. 

The  Mississippi  Supreme  Court  affirmed  that  portion  of 
the  Circuit  Court's  judgment.  457  So.  2d  1298  (1984).  With 
respect  to  Transco's  pre-emption  claim,  the  court  recognized 
that,  prior  to  1978,  the  Federal  Energy  Regulatory  Commis- 
sion (FERC)  and  its  predecessor,  the  Federal  Power  Com- 
mission, possessed  "plenary  authority  to  regulate  the  sale 
and  transportation  of  natural  gas  in  interstate  commerce." 
Id.,  at  1314.  Under  the  interpretation  of  that  authority  in 
Northern  Natural,  where  a  Kansas  ratable-take  order  was 
ruled  invalid  because  the  order  "invade[d]  the  exclusive  juris- 
diction which  the  Natural  Gas  Act  has  conferred  upon  the 
Federal  Power  Commission,"  372  U.  S.,  at  89,  Mississippi's 
"authority  to  enforce  Rule  48  requiring  ratable  taking  had 
been  effectively  suspended— preempted,  if  you  will,  and  any 
orders  such  as  Order  No.  409-82  would  have  been  wholly  un- 
enforceable." 457  So.  2d,  at  1314.  But  the  court  went  on  to 
conclude  that  the  enactment  of  the  NGPA  in  1978  removed 
FERC's  jurisdiction  over  "high-cost"  gas  (the  type  produced 
from  the  Harper  Sand  pool).  Under  §601(a)(l)  of  the 
NGPA,  "the  Natural  Gas  Act  of  1938  (NGA)  and  FERC's 
jurisdiction  under  the  Act  never  apply  to  deregulated  gas" 
(emphasis  added),  457  So.  2d,  at  1316,  and  "[t]hat  message 
is  decisive  of  the  preemption  issue  in  this  case."  Ibid. 

The  court  also  found  no  implicit  pre-emption  of  Rule  48. 
Transco's  compliance  with  the  Rule  could  not  bring  it  into 
conflict  with  any  of  FERC's  still-existing  powers  over  the  gas 
industry.  The  court  noted  that,  under  Arkansas  Electric 
Cooperative  Corp.  v.  Arkansas  Public  Service  Comm'n,  461 
U.  S.  375,  384  (1983),  a  federal  determination  that  deregula- 
tion was  appropriate  was  entitled  to  as  much  weight  in  deter- 
mining pre-emption  as  a  federal  decision  to  regulate  actively. 


416  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Although  the  NGPA  stemmed  from  Congress'  desire  to  de- 
regulate the  gas  industry,  the  court  found  that  "[h]owever 
consistent  a  continued  proscription  on  state  regulation  might 
have  been  with  the  theoretical  underpinnings  of  deregula- 
tion, the  Congress  in  NGPA  in  1978  did  not  ban  state  regula- 
tion of  deregulated  gas."  457  So.  2d,  at  1318. 

In  addressing  the  Commerce  Clause  issue,  the  court  relied 
on  the  balancing  test  set  out  in  Pike  v.  Bruce  Church,  Inc. , 
397  U.  S.    137  (1970):  when  a  state  law  "regulates  even- 
handedly  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." 
Id.,  at  142.     In  weighing  the  benefit  against  the  burden,  a 
reviewing  court  should  consider  whether  the  local  interest 
"could  be  promoted  as  well  with  a  lesser  impact  on  interstate 
activities."    Ibid.     The  court  found  that  Rule  48  had  a  legiti- 
mate local  purpose — the  prevention  of  unfair  drainage  from 
commonly  owned  gas  pools.     It  identified  the  principal  bur- 
den on  interstate  commerce  as  higher  prices  for  the  ultimate 
consumers  of  natural  gas.     But,  under  Cities  Service  Gas  Co. 
v.  Peerless  Oil  &  Gas  Co.,  340  U.  S.   179,   186-187  (1950), 
higher  prices  do  not  render  a  state  regulation  impermis- 
sible per  se  under  the  Commerce  Clause.      Also,  Congress 
expressed  a  clear  intent  in  enacting  the  NGPA  that  "all 
reasonable  costs  of  production  of  natural  gas  shall  be  borne 
ultimately  by  the  consumer.  .  .  .  Congress  within  the  scope 
of  its  power  under  the  affirmative  Commerce  Clause  has 
expressly  authorized  such  increases."     457  So.  2d,  at  1321. 
Transco  had  identified  one  other  potential  burden  on  inter- 
state commerce:  Rule  48  would  require  it  to  take  more  gas 
from  Mississippi's  fields  than  would  otherwise  be  the  case, 
thereby  leading  Transco  to  reduce  its  purchases  from  Louisi- 
ana and  Texas.     But  the  Mississippi  court  rejected  this  argu- 
ment, noting  both  that  Texas  and  Louisiana  had  their  own 
ratable-take  regulations,  which  presumably  would  protect 


TRANSCONTINENTAL  PIPE  LINE  u  STATE  OIL  &  GAS  BD.     417 
409  Opinion  of  the  Court 

their  producers,  and  that  the  actual  cause  of  any  such  effect 
was  Transco's  imprudent  entry  into  take-or-pay  contracts, 
rather  than  the  State's  ratable-take  requirement.  Transco 
knew  of  Rule  48's  existence  when  it  entered  into  its  various 
contracts  and  should  have  foreseen  the  risk  that  it  would  be 
required  to  purchase  smaller  owners'  shares.  Moreover, 
since  Transco  was  permitted  to  pass  along  its  increased  costs, 
the  consumer  ultimately  would  bear  this  burden,  which  was 
"simply  one  inevitable  consequence  of  the  free  market  poli- 
cies of  the  era  of  deregulation  with  respect  to  which  Transco 
is  vested  by  the  negative  Commerce  Clause  with  no  right  to 
complain."  Id.,  at  1322. 

Finally,  the  court  rejected  Transco's  argument  that  the 
State  could  have  served  the  same  local  public  interest 
through  a  ratable-production  order  rather  than  through  a 
ratable-take  order.  It  held  that  it  need  not  even  consider 
whether  less  burdensome  alternatives  to  the  ratable-take 
order  existed,  because  Transco  had  failed  to  meet  the  thresh- 
old requirement  of  demonstrating  an  unreasonable  burden  on 
interstate  commerce.2 

Ill 

If  the  Gas  Board's  action  were  analyzed  under  the  standard 
used  in  Northern  Natural,  it  clearly  would  be  pre-empted. 
Whether  that  decision  governs  this  case  depends  on  whether 
Congress,  in  enacting  the  NGPA,  altered  those  characteris- 
tics of  the  federal  regulatory  scheme  which  provided  the 
basis  in  Northern  Natural  for  a  finding  of  pre-emption. 


2Transco's  other  claims,  a  void-for-vagueness  challenge,  a  Takings 
Clause  argument,  and  various  state-law  claims,  were  rejected  with  one 
exception.  The  court  found  that,  although  the  Gas  Board  had  the  power  to 
order  Transco  to  take  ratably  from  the  Harper  Sand  pool,  it  lacked  the 
power  to  prohibit  Transco  from  paying  different  prices  for  gas  owned  by 
nonparties  to  its  original  contracts.  Therefore,  Transco  need  pay  Coastal 
only  the  current  market  price,  rather  than  the  higher  price  it  was  paying 
Getty  and  Tomlinson  under  its  contracts  with  them. 


418  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

In  that  case  this  Court  considered  whether  the  "compre- 
hensive scheme  of  federal  regulation"  that  Congress  enacted 
in  the  NGA  pre-empted  a  Kansas  ratable-take  order.      372 
U.  S.,  at  91.    Northern  Natural  Gas  Company  had  a  take-or- 
pay  contract  with  Republic  Natural  Gas  Company  to  pur- 
chase all  the  gas  Republic  could  produce  from  its  wells  in  the 
Hugoton  Field.     Northern  also  had  contracts  with  other  pro- 
ducers to  buy  their  production,  but  those  contracts  required 
it  to  purchase  their  gas  only  to  the  extent  that  its  require- 
ments  could  not  be   satisfied   by   Republic.       Id.,    at   87. 
Northern  historically  had  taken  ratably  from  all  Hugoton 
wells,  but,  starting  in  1958,  it  no  longer  needed  all  the  gas  the 
wells  in  the  field  were  capable  of  producing.      It  therefore 
reduced  its  purchases  from  the  other  wells,  causing  drainage 
toward  Republic's  wells.     The  Kansas  Corporation  Commis- 
sion,  which  previously  had  imposed   a  ratable-production 
order  on  the  Hugoton  producers,3  then  issued  a  ratable-take 
order  requiring  Northern  to  "take  gas  from  Republic  wells  in 
no  higher  proportion  to  the  allowables  than  from  the  wells  of 
the  other  producers."     JeZ.,  at  88. 

Kansas  argued  that  its  order  represented  a  permissible  at- 
tempt to  protect  the  correlative  rights  of  the  other  produc- 
ers. The  Court  rejected  this  contention.  Section  l(b)  of  the 
NGA,  15  U.  S.  C.  §  717(b),  provided  that  the  Act's  provisions 
"shall  not  apply  ...  to  the  production  or  gathering  of  natural 
gas."  But  the  Court,  it  was  said,  "has  consistently  held  that 
'production'  and  'gathering'  are  terms  narrowly  confined  to 
the  physical  acts  of  drawing  the  gas  from  the  earth  and  pre- 
paring it  for  the  first  stages  of  distribution."  372  U.  S.,  at 
90.  Since  Kansas'  order  was  directed  not  at  "a  producer  but 


8  A  ratable-production  order  in  essence  allocates  pro  rata  among  inter- 
est owners  the  right  to  produce  the  amount  of  gas  demanded.  For  exam- 
ple, if  one  interest  owner  owns  75%  of  the  gas  in  a  common  pool  with  100 
units  of  gas  and  demand  is  60  units,  then  the  majority  owner  will  be  per- 
mitted to  sell  only  45  of  his  units,  even  though  he  owns,  and  is  capable  of 
producing,  75  units. 


TRANSCONTINENTAL  PIPE  LINE  u  STATE  OIL  &  GAS  BD.     419 
409  Opinion  of  the  Court 

a  purchaser  of  gas  from  producers,"  ibid.,  Northern,  being 
a  purchaser,  was  not  expressly  exempted  from  the  Act's 
coverage. 

Although  it  was  "undeniable  that  a  state  may  adopt  reason- 
able regulations  to  prevent  economic  and  physical  waste  of 
natural  gas/'  Cities  Service  Gas  Co.  v.  Peerless  Oil  &  Gas 
Co.,  340  U.  S.,  at  185,  the  Court  did  not  view  the  ratable- 
take  rule  as  a  permissible  conservation  measure.4  Such 
measures  target  producers  and  production,  while  ratable- 
take  requirements  are  "aimed  directly  at  interstate  purchas- 
ers and  wholesales  for  resale."  Northern  Natural,  372 
U.  S.,  at  94, 

The  Court  identified  the  conflict  between  Kansas'  rule  and 
the  federal  regulatory  scheme  in  these  terms:  Congress  had 
"enacted  a  comprehensive  scheme  of  federal  regulation  of  'all 
wholesales  of  natural  gas  in  interstate  commerce.'"  Id.,  at 
91,  quoting  Phillips  Petroleum  Co.  v.  Wisconsin,  347  U.  S. 
672,  682  (1954).  'TUlniformity  of  regulation"  was  one  of  its 
objectives.  372  U.  S.,  at  91-92.  And,  it  was  said: 

"The  danger  of  interference  with  the  federal  regula- 
tory scheme  arises  because  these  orders  are  unmistak- 
ably and  unambiguously  directed  at  purchasers  who  take 
gas  in  Kansas  for  resale  after  transportation  in  interstate 
commerce.  In  effect,  these  orders  shift  to  the  shoulders 
of  interstate  purchasers  the  burden  of  performing  the 
complex  task  of  balancing  the  output  of  thousands  of  nat- 
ural gas  wells  within  the  State  ....  Moreover,  any 
readjustment  of  purchasing  patterns  which  such  orders 

4 The  Court  noted,  340  U.  S.,  at  185,  that  it  had  "upheld  numerous  kinds 
of  state  legislation  designed  to  curb  waste  of  natural  resources  and  to 
protect  the  correlative  rights  of  owners  through  ratable  taking,  Champlin 
Refimng  Co.  v.  Corporation  Commission  of  Oklahoma,  286  U.  S.  210 
(1932),"  but  it  is  clear  from  the  context  of  that  statement  that  those  chal- 
lenges had  involved  claims  by  gas  owners  under  the  Due  Process  and  Equal 
Protection  Clauses,  rather  than  claims  of  federal  pre-emption:  "These  ends 
have  been  held  to  justify  control  over  production  even  though  the  uses  to 
which  property  may  profitably  be  put  are  restricted."  Id.,  at  185-186. 


420  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

might  require  of  purchasers  who  previously  took  un- 
ratably  could  seriously  impair  the  Federal  Commission's 
authority  to  regulate  the  intricate  relationship  between 
the  purchasers'  cost  structures  and  eventual  costs  to 
wholesale  customers  who  sell  to  consumers  in  other 
States"  (emphasis  in  original).  Id.,  at  92. 

Northern  Natural9 s  finding  of  pre-emption  thus  rests  on 
two  considerations.  First,  Congress  had  created  a  compre- 
hensive regulatory  scheme,  and  ratable-take  orders  fell 
within  the  limits  of  that  scheme  rather  than  within  the  cate- 
gory of  regulatory  questions  reserved  for  the  States.  Sec- 
ond, in  the  absence  of  ratable-take  requirements,  purchasers 
would  choose  a  different,  and  presumably  less  costly,  pur- 
chasing pattern.  By  requiring  pipelines  to  follow  the  more 
costly  pattern,  Kansas'  order  conflicted  with  the  federal  in- 
terest in  protecting  consumers  by  ensuring  low  prices. 

Under  the  NGA,  the  Federal  Power  Commission's  com- 
prehensive regulatory  scheme  involved  "utility-type  rate- 
making"  control  over  prices  and  supplies.  See  Haase,  The 
Federal  Role  in  Implementing  the  Natural  Gas  Policy  Act  of 
1978,  16  Houston  L.  Rev.  1067,  1079  (1979).  The  FPC  set 
price  ceilings  for  sales  from  producers  to  pipelines  and 
regulated  the  prices  pipelines  could  charge  their  downstream 
customers.  But  "[i]n  the  early  1970's,  it  became  apparent 
that  the  regulatory  structure  was  not  working."  Public 
Service  Comm'n  of  New  York  v.  Mid-Louisiana  Gas  Co.,  463 
U.  S.  319,  330  (1983).  The  Nation  began  to  experience  seri- 
ous gas  shortages.  The  NGA's  "artificial  pricing  scheme" 
was  said  to  be  a  "major  cause"  of  the  imbalance  between 
supply  and  demand.  See  S.  Rep.  No.  95-436,  p.  50  (1977) 
(additional  views  of  Senators  Hansen,  Hatfield,  McClure, 
Bartlett,  Weicker,  Domenici,  and  Laxalt). 

In  response,  Congress  enacted  the  NGPA,  which  "has  been 
justly  described  as  'a  comprehensive  statute  to  govern  future 
natural  gas  regulation.'"  Mid-Louisiana  Gas.  Co.,  463 
U.  S.,  at  332,  quoting  Note,  Legislative  History  of  the  Natu- 


TRANSCONTINENTAL  PIPE  LINE  v.  STATE  OIL  &  GAS  BD.      421 
409  Opinion  of  the  Court 

ral  Gas  Policy  Act,  59  Texas  L.  Rev.  101,  116  (1980).     The 
aim  of  federal  regulation  remains  to  assure  adequate  supplies 
of  natural  gas  at  fair  prices,  but  the  NGPA  reflects  a  congres- 
sional belief  that  a  new  system  of  natural  gas  pricing  was 
needed  to  balance  supply  and  demand.     See  S.  Rep.  No.  95- 
436,  at  10.     The  new  federal  role  is  to  "overse[e]  a  national 
market  price  regulatory  scheme."     Haase,   16  Houston  L. 
Rev.,  at  1079;  see  S.  Rep.  No.  95-436,  at  21  (NGPA  imple- 
ments "a  new  commodity  value  pricing  approach").      The 
NGPA  therefore  does  not  constitute  a  federal  retreat  from 
a  comprehensive  gas  policy.      Indeed,  the  NGPA  in  some 
respects  expanded  federal  control,  since  it  granted  FERC 
jurisdiction  over  the  intrastate  market  for  the  first  time. 
See  the  Act's  §§311  and  312,  15  U.  S.  C.  §§3371  and  3372. 
Appellees  argue,  however,  that  §§601(a)(l)(B)(i)  and  (ii), 
15  U.  S.  C.    §§3431(a)(l)(B)(i)  and  (ii),   stripped  FERC  of 
jurisdiction  over  the  Harper  Sand  pool  gas  which  was  the 
subject  of  the  Gas  Board's  Rule  48  order,  thereby  leaving 
the   State  free  to  regulate  Transco's   purchases.       Section 
601(a)(l)(B)  states  that  "the  provisions  of  [the  NGA]  and  the 
jurisdiction  of  the  Commission  under  such  Act  shall  not  apply 
solely  by  reason  of  any  first  sale"  of  high-cost  or  new  natural 
gas.      Moreover,  although  FERC  retains  some  control  over 
pipelines'  downstream  pricing  practices,  §601(c)(2)  requires 
FERC  to  permit  Transco  to  pass  along  to  its  customers  the 
cost  of  the  gas  it  purchases  "except  to  the  extent  the  Com- 
mission determines  that  the  amount  paid  was  excessive  due 
to  fraud,  abuse,  or  similar  grounds."     According  to  appel- 
lees, FERC's  regulation  of  Transco's  involvement  with  high- 
cost  gas  can  now  concern  itself  only  with  Transco's  sales  to  its 
customers;  FERC,  it  is  said,  cannot  interfere  with  Transco's 
purchases  of  new  natural  gas  from  its  suppliers.      Appellees 
believe  that  the  Gas  Board  order  concerns  only  this  latter 
relationship,  and  therefore  is  not  pre-empted  by  federal  regu- 
lation of  other  aspects  of  the  gas  industry. 


422  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  TJ.  S. 

That  FERC  can  no  longer  step  in  to  regulate  directly  the 
prices  at  which  pipelines  purchase  high-cost  gas,  however, 
has  little  to  do  with  whether  state  regulations  that  affect  a 
pipeline's  costs  and  purchasing  patterns  impermissibly  in- 
trude upon  federal  concerns.      Mississippi's  action  directly 
undermines  Congress*  determination  that  the  supply,  the  de- 
mand, and  the  price  of  high-cost  gas  be  determined  by  mar- 
ket forces.     To  the  extent  that  Congress  denied  FERC  the 
power  to  regulate  affirmatively  particular  aspects  of  the  first 
sale  of  gas,  it  did  so  because  it  wanted  to  leave  determination 
of  supply  and  first-sale  price  to  the  market.      "[A]  federal 
decision  to  forgo  regulation  in  a  given  area  may  imply  an 
authoritative  federal  determination  that  the  area  is  best  left 
unregulated,  and  in  that  event  would  have  as  much  pre- 
emptive force  as  a  decision  to  regulate"  (emphasis  in  origi- 
nal).     Arkansas  Electric  Cooperative  Corp.   v.   Arkansas 
Public  Service  Comm'n,  461  U.  S.,  at  384.     Cf.  Machinists 
v.   Wisconsin  Employment  Relations  Comm'n,  427  U.  S. 
132,  150-151  (1976). 

The  proper  question  in  this  case  is  not  whether  FERC  has 
affirmative  regulatory  power  over  wellhead  sales  of  §  107 
gas,  but  whether  Congress,  in  revising  a  comprehensive  fed- 
eral regulatory  scheme  to  give  market  forces  a  more  signifi- 
cant role  in  determining  the  supply,  the  demand,  and  the 
price  of  natural  gas,  intended  to  give  the  States  the  power  it 
had  denied  FERC.     The  answer  to  the  latter  question  must 
be  in  the  negative.     First,  when  Congress  meant  to  vest  ad- 
ditional regulatory  authority  in  the  States  it  did  so  explicitly. 
See  §§503(c)  and  602(a),  15  U.  S.  C.  §§3413(c)  and  3432(a). 
Second,  although  FERC  may  now  possess  less  regulatory 
jurisdiction  over  the   "intricate   relationship   between   the 
purchasers'  cost  structures  and  eventual  costs  to  wholesale 
customers  who  sell  to  consumers  in  other  States,"  Northern 
Natural,  372  U.  S.,  at  92,  than  it  did  under  the  old  regime, 
that  relationship  is  still  a  subject  of  deep  federal  concern. 
FERC  still  must  review  Transco's  pricing  practices,   even 


TRANSCONTINENTAL  PIPE  LINE  u  STATE  OIL  &  GAS  BD.      423 
409  Opinion  of  the  Court 

though  its  review  of  Transco's  purchasing  behavior  has  been 
circumscribed.  See  App.  148-150,  170.  In  light  of  Con- 
gress' intent  to  move  toward  a  less  regulated  national  natural 
gas  market,  its  decision  to  remove  jurisdiction  from  FERC 
cannot  be  interpreted  as  an  invitation  to  the  States  to  impose 
additional  regulations. 

Mississippi's  order  also  runs  afoul  of  other  concerns  identi- 
fied in  Northern  Natural.  First,  it  disturbs  the  uniformity 
of  the  federal  scheme,  since  interstate  pipelines  will  be  forced 
to  comply  with  varied  state  regulations  of  their  purchasing 
practices.  In  light  of  the  NGPA's  unification  of  the  inter- 
state and  intrastate  markets,  the  contention  that  Congress 
meant  to  permit  the  States  to  impose  inconsistent  regulations 
is  especially  unavailing.  Second,  Mississippi's  order  would 
have  the  effect  of  increasing  the  ultimate  price  to  consumers. 
Take-or-pay  provisions  are  standard  industrywide.  See 
Pierce,  68  Va.  L.  Rev.,  at  77-78;  H.  R.  Rep.  No.  98-814, 
pp.  23-25,  133-134  (1984).  Pipelines  are  already  committed 
to  purchase  gas  in  excess  of  market  demand.  Mississippi's 
rule  will  require  Transco  to  take  delivery  of  noncontract  gas; 
this  will  lead  Transco  not  to  take  delivery  of  contract  gas 
elsewhere,  thus  triggering  take-or-pay  provisions.  Trans- 
co's  customers  will  ultimately  bear  such  increased  costs,  see 
App.  161,  unless  FERC  finds  that  Transco's  purchasing  prac- 
tices are  abusive.  In  fact,  FERC  is  challenging,  on  grounds 
of  abuse,  the  automatic  passthrough  of  some  of  the  costs 
Transco  has  incurred  in  its  purchases  of  high-cost  gas.  See 
App.  177-178. 6  In  any  event,  the  federal  scheme  is  dis- 

6  On  October  31,  1985,  FERC  issued  an  initial  decision,  Transcontinen- 
tal Gas  Pipe  Line  Corp.,  33  FERC  1163,026,  finding  that  Transco's  pur- 
chases of  Harper  Sand  gas  pursuant  to  the  ratable-take  order  were  not  im- 
prudent. But  the  grounds  on  which  the  Administrative  Law  Judge  rested 
his  conclusion  demonstrate  how  Mississippi's  action  impermissibly  inter- 
feres with  FERC's  regulatory  jurisdiction. 

FERC's  staff  had  requested  the  judge  to  order  Transco  "to  pursue  a 
least-cost  purchasing  strategy  irrespective  of  Rule  48. "  Id. ,  at  65,073  (em- 
phasis in  original).  The  judge  refused:  "In  my  view,  Transco  is  entitled, 


424  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

rupted:  if  customers  are  forced  to  pay  higher  prices  because 
of  Mississippi's  ratable-take  requirement,  then  Mississippi's 
rule  frustrates  the  federal  goal  of  ensuring  low  prices  most 
effectively;  if  FERC  ultimately  finds  Transco's  practices  abu- 
sive and  refuses  to  allow  a  passthrough,  then  FERC's  and 
Mississippi's  orders  to  Transco  will  be  in  direct  conflict. 

The  change  in  regulatory  perspective  embodied  in  the 
NGPA  rested  in  significant  part  on  the  belief  that  direct  fed- 
eral price  control  exacerbated  supply  and  demand  problems 
by  preventing  the  market  from  making  long-term  adjust- 
ments.6 Mississippi's  actions  threaten  to  distort  the  market 
once  again  by  artificially  increasing  supply  and  price.,  Al- 
though, in  the  long  run,  producers  and  pipelines  may  be  able 
to  adjust  their  selling  and  purchasing  patterns  to  take  ac- 
count of  ratable-take  orders,  requiring  such  future  adjust- 
ments in  an  industry  where  long-term  contracts  are  the  norm 


indeed  is  required,  to  follow  the  decisions  of  the  Mississippi  authorities 
until  and  unless  they  be  overturned  by  the  Supreme  Court  of  the  United 
States."  Id.,  at  65,074. 

Had  the  judge  considered  FERC's  claim  on  the  merits,  the  conflict  be- 
tween the  federal  and  state  schemes  would  be  patent.  But  his  belief  that 
he  was  constrained  to  find  Transco's  practices  reasonable  because  they 
were  undertaken  in  compliance  with  Mississippi  law  is  almost  as  demon- 
strative of  pre-emption.  First,  Mississippi  cannot  be  permitted  to  fore- 
close what  would  otherwise  be  more  searching  federal  oversight  of  pur- 
chasing practices.  Second,  the  mere  exercise  of  federal  regulatory  power, 
even  if  it  does  not  result  in  invalidation  of  the  challenged  act,  shows  contin- 
ued federal  occupation  of  the  field.  Since  no  evidence  exists  to  suggest 
Congress  intended  FERC's  power  to  be  circumscribed  by  state  action, 
Rule  48  is  pre-empted. 

6  The  dissent's  complaint  that  Congress  did  not  intend  to  decontrol  sup- 
ply and  demand,  post,  at  433,  n.  5,  misses  the  point.  Congress  clearly  in- 
tended to  eliminate  the  distortive  effects  that  NGA  price  control  had  had 
on  supply  and  demand.  To  suggest  that  Congress  was  willing  to  replace 
this  distortion  with  a  distortion  on  price  caused  by  a  State's  decision  to  re- 
quire pipelines  and,  ultimately,  interstate  consumers,  to  purchase  gas  they 
do  not  want— the  purpose  of  the  order  in  this  case— requires  taking  an  arti- 
ficially formalistic  view  of  what  Congress  sought  to  achieve  in  the  NGPA. 


TRANSCONTINENTAL  PIPE  LINE  v.  STATE  OIL  &  GAS  BD.      425 

409  REHNQUIST,  J.,  dissenting 

will  postpone  achievement  of  Congress'  aims  in  enacting  the 
NGPA.  We  therefore  conclude  that  Mississippi's  ratable- 
take  order  is  pre-empted. 

IV 

Because  we  have  concluded  that  the  Gas  Board's  order  is 
pre-empted  by  the  NGA  and  NGPA,  we  need  not  reach  the 
question  whether,  absent  federal  occupation  of  the  field, 
Mississippi's  action  would  nevertheless  run  afoul  of  the 
Commerce  Clause. 

The  judgment  of  the  Supreme  Court  of  Mississippi  is  there- 
fore reversed. 

It  is  so  ordered. 

JUSTICE  REHNQUIST,  with  whom  JUSTICE  POWELL,  JUS- 
TICE STEVENS,  and  JUSTICE  O'CONNOR  join,  dissenting. 

Section  601(a)(l)  of  the  Natural  Gas  Policy  Act  of  1978 
(NGPA),  92  Stat.  3409,  15  U.  S.  C.  §3431(a)(l),  removes  the 
wellhead  sales  of  "high-cost  natural  gas"  from  the  coverage  of 
the  Natural  Gas  Act  (NGA),  15  U.  S.  C.  §§717-717w.  Sec- 
tion 121(b)  of  the  NGPA,  15  U.  S.  C.  §  3331(b),  exempts  such 
gas  from  any  lingering  price  controls  under  the  NGPA.  The 
Court  nonetheless  holds  that  Mississippi's  application  of  its 
ratable-take  rule  to  high-cost  gas  in  order  to  "do  equity 
between  and  among  owners  in  a  common  pool  of  deregulated 
gas,"  App.  to  Juris.  Statement  28a,  is  pre-empted  by  the 
NGA  and  NGPA.  The  Court's  opinion  misuses  the  pre- 
emption doctrine  to  extricate  appellant  Transcontinental  Gas 
Pipe  Line  Corp.  (Transco)  from  a  bed  it  made  for  itself.  I 
dissent  because  I  do  not  believe  that  Mississippi's  ratable- 
take  rule  invades  the  exclusive  sphere  of  the  NGA,  conflicts 
with  the  NGPA's  purpose  of  decontrolling  the  wellhead  price 
of  high-cost  gas,  or  runs  afoul  of  the  implicit  free  market 
policy  of  the  dormant  Commerce  Clause. 

The  imposition  of  a  ratable-take  rule  is  a  familiar  solution 
of  oil  and  gas  law  to  the  problem  of  "drainage"  in  a  commonly 


426  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

owned  gas  pool.1  When  several  individuals  own  gas  in  a 
common  pool,  each  has  an  incentive  to  remove  and  capture  as 
much  gas  as  rapidly  as  possible  in  order  to  prevent  others 
from  "draining  away"  his  share  of  the  gas  reserves.  This 
practice  results  in  a  much  faster  removal  rate  than  a  single 
owner  of  the  same  pool  would  choose,  and  makes  it  more  diffi- 
cult to  obtain  the  last  amounts  of  gas  in  a  pool.  A  ratable- 
take  rule  eliminates  the  perverse  incentives  of  common  own- 
ership that  otherwise  give  rise  to  such  economic  waste  and 
sharp  practice.  See  Champlin  Refining  Co.  v.  Oklahoma 
Corporation  Comm'n,  286  U.  S.  210,  233  (1932). 

The  controversy  in  this  case  centers  around  the  Harper 
Sand  Gas  Pool  (Harper  Pool),  which  is  a  pool  of  '^high-cost 
natural  gas"  within  the  definition  of  that  term  in  §  107(c)(l)  of 
the  NGPA,  15  U.  S.  C.  §  3317(c)(l),  because  it  lies  more  than 
15,000  feet  beneath  the  ground  and  surface  drilling  for  its 
gas  began  in  1978. 2  By  1982,  there  were  six  wells  drawing 
gas  from  the  Harper  Pool.  Three  were  operated  by  Getty 
Oil  Co.,  two  by  the  Florida  Exploration  Co.,  and  one  by 
Tomlinson  Interests,  Inc.  These  operators  were  only  part 
owners  of  the  gas  drawn  up  through  their  respective  wells. 


xThe  withdrawal  of  gas  from  a  common  pool  causes  changes  in  pressure, 
resulting  in  the  migration  and  spreading  out  of  the  remaining  gas  over  the 
entire  pool.  This  migration  is  called  "drainage"  because,  from  the  view- 
point of  each  owner,  the  withdrawal  of  gas  by  another  causes  gas  to  mi- 
grate or  "drain"  away  from  his  end  of  the  pool. 

2  The  NGPA  defines  "high-cost  natural  gas"  as  any  gas 

"(1)  produced  from  any  well  the  surface  drilling  of  which  began  on  or 
after  February  19,  1977,  if  such  production  is  from  a  completion  location 
which  is  located  at  a  depth  of  more  than  15,000  feet; 

"(2)  produced  from  geopressured  brine; 

"(3)  occluded  natural  gas  produced  from  coal  seams; 

"(4)  produced  from  Devonian  shale;  and 

"(5)  produced  under  such  other  conditions  as  the  Commission  deter- 
mines to  present  extraordinary  risks  or  costs."  NGPA  §  107(c),  92  Stat. 
3366,  15  U.  S.  C.  §3317(c). 


TRANSCONTINENTAL  PIPE  LINE  v.  STATE  OIL  &  GAS  BD.     427 
409  REHNQUIST,  J.,  dissenting 

They  shared  ownership  rights  with  a  large  number  of  other 
parties  including  appellee  Coastal  Exploration,  Inc. 

Appellant  Transco  is  an  interstate  pipeline  company  that 
purchases  gas  from  the  various  owners  of  the  Harper  Pool. 
As  each  well  was  drilled  between  1978  and  1982,  Transco 
entered  into  long-term  contracts  with  the  well  operators  to 
ensure  future  gas  supplies  at  a  fixed  price.  In  this  way, 
Transco  bound  itself  to  purchase,  and  the  well  operators 
bound  themselves  to  supply,  the  well  operators'  shares  of  the 
gas  drawn  from  the  common  pool.  Transco  also  agreed  to  a 
"take-or-pay"  clause  in  each  contract,  thereby  promising  to 
pay  the  well  operators  for  their  shares  of  the  potential  gas 
streams  whether  or  not  it  took  immediate  delivery  of  the  gas. 

Until  May  1982,  Transco  also  purchased  the  production 
shares  of  all  of  the  nonoperating  owners.  It  did  so  by  spot 
market  purchases  at  prices  roughly  equal  to  those  it  was  pay- 
ing to  the  contract  owners  rather  than  pursuant  to  fixed- 
price  long-term  supply  contracts.  But  Transco  announced  in 
May  1982  that,  because  of  a  glut  in  the  natural  gas  market, 
it  would  no  longer  purchase  gas  on  the  spot  market  from 
the  noncontract  owners  of  the  Getty  and  Tomlinson  wells. 
Coastal,  which  had  an  ownership  interest  in  gas  from  one  of 
the  Getty  wells,  thereupon  attempted  to  sell  its  share  of  the 
gas  on  the  spot  market  to  another  pipeline  company.  Failing 
in  this  attempt,  it  then  offered  to  sign  a  long-term  supply  con- 
tract with  Transco  on  terms  identical  to  those  in  Transco's 
contract  with  Getty.  Transco  refused  Coastal's  offer,  and 
made  a  counteroffer  to  Coastal  which  was  in  turn  refused. 

Coastal  and  various  noncontract  owners  then  sought  re- 
lief from  the  Mississippi  Oil  and  Gas  Board  (Board),  arguing 
that  Transco's  disproportionate  purchasing  of  gas  from  the 
Harper  Pool  violated  the  Board's  ratable-take  rule  (Rule  48), 
which  provides: 

"Each  person  now  or  hereafter  engaged  in  the  busi- 
ness of  purchasing  oil  or  gas  from  owners,  operators,  or 
producers  shall  purchase  without  discrimination  in  favor 


428  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

of  one  owner,  operator,  or  producer  against  another  in 
the  same  common  source  of  supply."  Statewide  Rule  48 
of  the  State  Oil  and  Gas  Board  of  Mississippi  as  set  forth 
in  App.  to  Juris.  Statement  129a. 

Transco  opposed  the  relief  sought  by  Coastal  because  en- 
forcement of  the  rule  would  require  Transco  to  purchase  the 
same  percentage  of  each  owner's  share  of  the  pool's  allowable 
production  as  it  purchased  from  any  other  owner's  share. 
Because  of  the  "take-or-pay"  obligations  in  its  contracts  with 
the  operating  owners,  this  would  require  it  either  to  take 
more  gas  than  it  could  profitably  sell  to  its  interstate  cus- 
tomers or  to  pay  the  operating  owners  for  the  percentage  of 
their  shares  that  it  did  not  presently  take.     Transco  there- 
fore urged  the  Board  to  reduce  the  allowable  production  from 
the  common  pool  to  reflect  current  market  demand  or  to  sub- 
stitute a  "ratable-production"  rule  for  the  existing  "ratable- 
take"  rule.     Had  the  Board  acceded  to  Transco's  proposals, 
Transco's  liability  for  its  realized  downside  contractual  risk 
resulting  from  the  take-or-pay  clauses  would  have  been  lim- 
ited or  avoided  at  the  expense  of  the  operating  owners  with 
whom  it  contracted.      The  Board  instead  ruled  in  favor  of 
Coastal  and  against  Transco,  finding,  inter  alia: 

"Transco's  course  of  conduct  has  been  to  discriminate 
against  the  owners  (like  Coastal)  of  relatively  small  un- 
divided working  interests  in  the  .  .  .  [w]ells  and  the 
common  pool  produced  by  the  wells  simply  because  they 
are  owners  of  relatively  small  undivided  interests. 

"The  Board  finds  that  Transco's  refusal  to  ratably  take 
and  purchase  without  discrimination  Coastal's  share 
of  gas  produced  from  the  said  common  pool  from  which 
Transco  is  purchasing  the  operators'  gas  produced  from 
the  common  pool  by  [the]  very  same  wells  and  other 
wells  completed  into  the  common  pool  (1)  is  discrimi- 
natory in  favor  of  the  operators  against  Coastal  and 
thereby  violates  Rule  48  .  .  .  ;  (2)  constitutes  'waste'  .  .  . 


TRANSCONTINENTAL  PIPE  LINE  v.  STATE  OIL  &  GAS  BD.      429 

409  REHNQUIST,  J.,  dissenting 

because,  among  other  things,  it  abuses  the  correlative 
rights  of  Coastal  in  the  common  pool,  results  in  non- 
uniform,  disproportionate  and  unratable  withdrawals  of 
gas  from  the  common  pool  causing  undue  drainage  be- 
tween tracts  of  land,  and  will  have  the  effect  and  result 
of  some  owners  in  the  pool  producing  more  than  their 
just  and  equitable  share  of  gas  from  the  common  pool  to 
the  detriment  of  Coastal  .  .  .  ."  App.  to  Juris.  State- 
ment HOa-llla. 

The  Board's  order  was  affirmed  by  the  Circuit  Court  of  Hinds 
County,  Mississippi,  and  affirmed  by  the  Supreme  Court  of 
Mississippi  insofar  as  it  required  ratable  taking,  despite 
Transco's  claims  of  federal  pre-emption  and  violation  of  the 
Commerce  Clause.  457  So.  2d  1298  (1984). 

The  Court  now  reverses  on  pre-emption  grounds.  It  holds 
that  the  ratable-take  rule  as  applied  to  high-cost  gas  is  pre- 
empted under  the  reasoning  of  Northern  Natural  Gas  Co.  v. 
State  Corporation  Comrrin  of  Kansas,  372  TJ.  S.  84  (1963), 
even  though  the  NGPA  removed  the  wellhead  sales  of  such 
gas  from  the  coverage  of  the  NGA.  I  believe  that  the 
NGPA's  removal  of  such  gas  from  the  NGA  takes  this  case 
outside  the  purview  of  Northern  Natural,  and  that  a  ratable- 
take  rule  such  as  that  imposed  by  Mississippi  is  consistent 
with  the  NGPA's  purpose  of  decontrolling  the  wellhead  price 
of  high-cost  gas. 

Congress  passed  the  NGA  in  1938  in  response  to  this 
Court's  holding  that  the  Commerce  Clause  prevented  States 
from  directly  regulating  the  wholesale  prices  of  natural  gas 
sold  in  interstate  commerce.  See  Missouri  v.  Kansas  Natu- 
ral Gas  Co.,  265  U.  S.  298  (1924).  The  purpose  of  the  NGA 
was  "to  occupy  the  field  of  wholesale  sales  of  natural  gas  in 
interstate  commerce."  Exxon  Corp.  v.  Eagerton,  462  U.  S. 
176,  184  (1983).  Section  l(b)  of  the  NGA,  52  Stat.  821,  15 
U.  S.  C.  §717(b),  defined  the  NGA's  scope: 

"The  provisions  of  this  Act  shall  apply  to  the  transporta- 
tion of  natural  gas  in  interstate  commerce,  to  the  sale  in 


430  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

interstate  commerce  of  natural  gas  for  resale  for  ulti- 
mate public  consumption  for  domestic,  commercial,  in- 
dustrial, or  any  other  use,  and  to  natural  gas  companies 
engaged  in  such  transportation  or  sale,  but  shall  not 
apply  to  any  other  transportation  or  sale  of  natural  gas 
or  to  the  local  distribution  of  natural  gas  or  to  the  facili- 
ties used  for  such  distribution  or  to  the  production  and 
gathering  of  natural  gas."  (Emphasis  added.) 

Initially,  the  Federal  Power  Commission  (predecessor  to  the 
Federal  Energy  Regulatory  Commission  (FERC))  inter- 
preted §  l(b)  to  extend  the  NGA's  coverage  to  gas  sales  at  the 
downstream  end  of  interstate  pipelines,  but  not  to  sales  by 
local  producers  to  interstate  pipelines.  See,  e.  g.,  Phillips 
Petroleum  Co.,  10  F.  P.  C.  246  (1951);  Natural  Gas  Pipeline 
Co.,  2  F.  P.  C.  218  (1940).  In  1954,  however,  this  Court 
gave  §  l(b)  a  broader  reading.  See  Phillips  Petroleum  Co. 
v.  Wisconsin,  347  U.  S.  672  (1954).  It  interpreted  the  NGA 
as  creating  exclusive  federal  jurisdiction  over  the  regulation 
of  natural  gas  in  interstate  commerce,  and  §  l(b)  as  extend- 
ing the  NGA's  coverage  to  both  downstream  and  local  sales, 
though  not  to  the  production  and  gathering  of  natural  gas. 
Id.,  at  677-678;  see  also  id.,  at  685-686  (Frankfurter,  J., 
concurring). 

Northern  Natural  Gas  Co.  v.  State  Corporation  Comm'n 
of  Kansas,  supra,  was  decided  against  this  backdrop.  In 
Northern  Natural,  the  Court  held  that  a  state  ratable-take 
rule  as  applied  to  the  purchases  of  natural  gas  by  interstate 
pipelines  was  pre-empted  by  the  NGA  because  it  constituted 
an  "inva[sion  into]  the  exclusive  jurisdiction  which  the  Natu- 
ral Gas  Act  has  conferred  upon  the  Federal  Power  Commis- 
sion over  the  sale  and  transportation  of  natural  gas  in  inter- 
state commerce  for  resale."  Id.,  at  89.  The  Court  rejected 
the  argument  that  ratable-take  rules  "constitute  only  state 
regulation  of  the  'production  or  gathering'  of  natural  gas, 
which  is  exempted  from  the  federal  regulatory  domain  by  the 
terms  of  §  l(b)  of  the  Natural  Gas  Act."  Id.,  at  89-90.  It 


TRANSCONTINENTAL  PIPE  LINE  u  STATE  OIL  &  GAS  BD.      431 
409  REHNQUIST,  J,,  dissenting 

explained  that  because  such  rules  apply  to  purchasers,  they 
involve  the  regulation  of  wellhead  sales.  Id. ,  at  90.  It  also 
rejected  the  argument  that  they  do  not  "threate[n]  any  actual 
invasion  of  the  regulatory  domain  of  the  Federal  Power  Com- 
mission since  [they]  'in  no  way  involv[e]  the  price  of  gas.'" 
Ibid,  (emphasis  added).  The  Court  reasoned  that  the  NGA 
"leaves  no  room  either  for  direct  state  regulation  of  the  prices 
of  interstate  wholesales  of  natural  gas,  .  .  .  or  for  state  regu- 
lations which  would  indirectly"  regulate  price.  Id.,  at  91. 
Because  ratable-take  rules  apply  to  purchasers,  they  indi- 
rectly regulate  price  and  therefore  "invalidly  invade  the  fed- 
eral agency's  exclusive  domain''  of  sales  regulation.3  Id.,  at 
92.  Finally,  the  Court  explained  that  although  "States  do 
possess  power  to  allocate  and  conserve  scarce  natural  re- 
sources upon  and  beneath  their  lands,"  id.,  at  93,  they  may 
not  use  means  such  as  ratable-take  rules  that  "threaten  effec- 
tuation of  the  federal  regulatory  scheme."  Ibid. 

The  NGPA  was  passed  in  1978  in  response  to  chronic  inter- 
state gas  shortages  caused  by  price  ceiling's  imposed  pursu- 
ant to  the  NGA.  Its  purpose  was  to  decontrol  the  -wellhead 
price  of  natural  gas  sold  to  interstate  pipelines,  allowing 
prices  to  rise  according  to  market  conditions  and  causing 
shortages  to  vanish.  To  accomplish  this  purpose,  it  divided 


3  In  Silkwood  v.  Kerr-McGee  Corp.,  464  U.  S.  238  (1984),  this  Court  ex- 
plained that  "state  law  can  be  pre-empted  in  either  of  two  general  ways." 
Id. ,  at  248. 

"If  Congress  evidences  an  intent  to  occupy  a  given  field,  any  state  law 
falling  within  that  field  is  pre-empted.  ...  If  Congress  has  not  entirely 
displaced  state  regulation  over  the  matter  in  question,  state  law  is  still  pre- 
empted to  the  extent  it  actually  conflicts  with  federal  law,  that  is,  when  it 
is  impossible  to  comply  with  both  state  and  federal  law,  ...  or  where  the 
state  law  stands  as  an  obstacle  to  the  accomplishment  of  the  full  purposes 
and  objectives  of  Congress."  Ibid. 

The  reasoning  of  Northern  Natural  is  that  a  state  ratable-take  rule  is  pre- 
empted if  it  invades  the  jurisdictional  coverage  of  a  statute  that  falls  within 
the  first  category  of  the  Kerr-McGee  pre-emption  test  —  statutes  designed 
to  "occupy  a  given  field"  to  the  exclusion  of  state  regulation. 


432  OCTOBER  TERM,  1985 

REHNQUIST,  J,,  dissenting  474  U.  S. 

the  supply  of  gas  into  three  major  categories:  high-cost  gas, 
new  gas,  and  old  gas.     See  Pierce,  Natural  Gas  Regulation, 
Deregulation,    and   Contracts,    68  Va.    L.    Rev.    63,    87-89 
(1982).     It  removed  the  wellhead  sales  of  high-cost  and  new 
gas  from  the  coverage  of  the  NGA.     NGPA  §  601(a)(l)(B),  15 
U.  S.  C.   §3431(a)(l)(B).      It  then  established  formulas  for 
the  gradual  decontrol  of  the  wellhead  prices  of  such  gas. 
See  NGPA  §§102(b),  103(b),  107(a),  15  U.  S.  C.  §§3312(b), 
3313(b),  3317(a).     The  wellhead  price  of  high-cost  gas  was 
totally  decontrolled  in  November  1979.     See  NGPA  §  121(b), 
15  U.  S.  C.  §3331(b);  Pierce,  supra,  at  87-88.     Ceilings  con- 
tinue to  apply  to  the  wellhead  prices  of  old  gas.     See  id.,  at 
88-89.     Because  gas  from  the  Harper  Sand  Gas  Pool  qualifies 
as  high-cost  gas,  the  NGA  no  longer  covers  its  wellhead 
price.     Moreover,  to  the  extent  the  NGPA  ever  controlled 
the  wellhead  prices  of  such  gas,  cf.  Public  Service  Comm'n  of 
New  York  v.  Mid-Louisiana  Gas  Co.,  463  U.  S.  319  (1983), 
those  controls  have  long  since  been  eliminated.4     Therefore, 
Northern  Natural  does  not  govern  this  case.      Rather,  the 
issue  is  whether  Mississippi's  ratable-take  rule  stands   as 
an  obstacle  to  the  full  accomplishment  of  the  NGPA's  pur- 
pose.     See  Silkwood  v.  Kerr-McGee  Corp.,  464  U.  S.  238, 
248  (1984). 

The  purpose  of  the  NGPA  with  respect  to  high-cost  gas  is 
to  eliminate  governmental  controls  on  the  wellhead  price 


4  FERC's  remaining  jurisdiction  to  prevent  interstate  pipelines  from 
fraudulently,  abusively,  or  otherwise  illegitimately  passing  on  higher  well- 
head prices  to  ultimate  consumers,  see  15  U.  S.  C.  §  3431(c)(2),  does  not 
include  jurisdiction  over  wellhead  price  levels.  Cf .  Exxon  Corp.  v.  Eager- 
ton,  462  U.  S.  176,  184  (1983)  (state  statute  directly  prohibiting  interstate 
pipelines  from  passing  on  severance  tax  to  consumers  invades  FERC's 
pass-on  jurisdiction);  Maryland  v.  Louisiana,  451  U.  S.  725,  746-752 
(1981)  (state  statute  indirectly  requiring  interstate  pipelines  to  pass 
on  severance  tax  to  consumers  invades  FERC's  pass-on  jurisdiction);  ^d., 
at  747,  n.  22  (question  whether  tax  conflicted  with  FERC's  authority  to 
control  price  of  gas  expressly  reserved). 


TRANSCONTINENTAL  PIPE  LINE  v.  STATE  OIL  &  GAS  BD.      433 
409  REHNQUIST,  J.,  dissenting 

of  such  gas.5  State  regulation  that  interferes  with  this 
purpose  is  pre-empted.  See  Arkansas  Electric  Cooperative 
Corp.  v.  Arkansas  Public  Service  Comm'n,  461  U.  S.  375, 
384  (1983).  State  regulation  that  merely  defines  property 
rights  or  establishes  contractual  rules,  however,  does  not 
interfere  with  this  purpose.  Markets  depend  upon  such 
rules  to  function  efficiently. 

Ratable-take  rules  serve  the  twin  interests  of  conservation 
and  fair  dealing  by  removing  the  incentive  for  "drainage." 
On  its  face,  the  ratable-take  rule  here  is  completely  consist- 
ent with  the  free  market  determination  of  the  wellhead  price 
of  high-cost  gas.  Like  any  compulsory  unitization  rule,  it 
gives  joint  owners  the  incentive  to  price  at  the  same  level  as 
a  single  owner.  But  it  will  not  affect  the  spot  market  price 
of  gas  in  any  other  way.  It  is  similarly  price  neutral  in  the 
context  of  long-term  contracting.  The  rule  is  merely  one  of  a 
number  of  legal  rules  that  regulates  the  contractual  relations 
of  parties  in  the  State  of  Mississippi  as  in  other  States.  The 


5  The  majority  also  mentions  "supply"  and  "demand"  as  economic  vari- 
ables that  Congress  intended  to  decontrol.  There  is  no  support  for  this  in 
the  legislative  history,  and  the  use  of  these  variables  unnecessarily  compli- 
cates and  distorts  the  pre-emption  analysis.  The  NGPA  was  concerned 
with  supply  only  to  the  extent  that  price  ceilings  create  shortages.  The 
Court  has  always  acknowledged  that  conservation  of  the  supply  of  natural 
gas  is  traditionally  a  function  of  state  power.  See,  e.  g.,  Northern  Natu- 
ral Gas  Co.  v.  State  Corporation  Comm'n  of  Kansas,  372  U.  S.  84,  93 
(1963).  Thus,  it  has  upheld  the  common  state  practice  of  placing  ceilings, 
called  "allowables,"  on  the  amount  of  gas  that  a  particular  well  or  pool  may 
produce  during  a  given  period.  See,  e.  g.,  Champlin  Refining  Co.  v.  Cor- 
poration Comm'n  of  Oklahoma,  286  U.  S.  210  (1932).  Such  absolute  re- 
strictions on  output  have  the  potential  of  raising  wellhead  prices  above 
competitive  equilibrium.  Ratable-take  rules,  by  themselves,  do  not. 

There  is  even  less  reason  to  infer  a  purpose  to  decontrol  demand.  To 
the  extent  central  planners  even  have  the  power  to  control  demand,  their 
control  is  limited  to  the  manipulation  of  output  and  price.  Planners  have 
no  obvious  control  over  individual  preferences.  It  therefore  makes  little 
sense  to  consider  "demand"  to  be  an  independent  object  of  the  NGPA's 
decontrol  purpose. 


434  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

Court,  however,  seems  to  equate  Mississippi's  rule  requiring 
equitable  dealing  on  the  part  of  pipeline  companies  purchas- 
ing from  common  owners  of  gas  pools  as  akin  to  a  tax  or  a 
subsidy,  both  of  which  do  tend  to  distort  free  market  prices. 
Unlike  taxes  or  subsidies,  however,  rules  regulating  the 
conditions  of  contracts  have  only  an  attenuated  effect  on 
the  operation  of  the  free  market.      Their  effect  is  often  to 
promote  the  efficient  operation  of  the  market  rather  than 
to  inhibit  or  distort  it  the  way  a  tax  or  subsidy  might.     A 
ratable-take  rule  applied  to  a  common  pool  eliminates  the 
inefficiencies    associated    with    the    perverse    incentives    of 
common  ownership  of  a  gas  pool.     It  is  different  from  a  rule 
that  would  require  any  out-of-state  pipeline  that  purchases 
gas  from  one  in-state  pool  of  gas  to  purchase  equal  amounts 
from  every  other  in-state  pool.      This  latter  type  of  rule 
might  well  burden  interstate  commerce  or  violate  the  free 
market  purpose  of  the  NGPA.      But  a  ratable-take  rule 
applied  to  a  common  pool  promotes,  rather  than  inhibits, 
the  efficiency  of  a  competitive  market.      Moreover,  States 
have  historically  included  ratable-take  rules  in  developing 
the  body  of  law  applicable  to  natural  gas  extraction.      See, 
e.  g.,   Champlin  Refining  Co.   v.    Corporation  Comm'n  of 
Oklahoma,  286  U.  S.  210,  233  (1932);  Cities  Service  Gas  Co. 
v.  Peerless  Oil  &  Gas  Co.,  340  U.  S.  179  (1950).      One  may 
agree  that  Congress  wished  to  return  to  the  free  market 
determination  of  the  price  of  high-cost  gas  without  conclud- 
ing that  Mississippi's  ratable-take  rule  frustrates  that  wish. 
Rule  48  was  promulgated  by  the  Mississippi  Board  long  be- 
fore the  enactment  of  the  NGPA,  and  the  fact  that  it  had  not 
previously  been  applied  to  this  type  of  transaction  affords  no 
argument  against  its  validity  based  on  federal  pre-emption. 
Indeed,  the  implication  in  the  Court's  opinion  that  a  mid- 
stream expansion  in  the  coverage  of  a  state  regulation  justi- 
fies pre-emption  if  the  party  to  whom  the  rule  is  applied 
claims  disappointed  expectations  is  nothing  less  than  Con- 
tract Clause  jurisprudence  masquerading  as  pre-emption.     A 


TRANSCONTINENTAL  PIPE  LINE  v.  STATE  OIL  &  GAS  BD.      435 
409  REHNQUIST,  J.,  dissenting 

party  runs  the  risk  of  reasonably  foreseeable  applications 
of  new  principles  of  state  law  to  its  activities,  see  Energy 
Reserves  Group,  Inc.  v.  Kansas  Power  &  Light  Co.,  459 
U.  S.  400  (1983),  and  that  is  the  most  that  can  be  said  to  have 
happened  here.  The  only  reason  the  ratable-take  rule  has 
any  adverse  effect  on  Transco  is  that  Transco  entered  supply 
contracts  with  the  well  operators  that  included  "take-or-pay" 
obligations.  The  NGPA  gives  Transco  no  basis  for  insisting 
that  state  law-  be  frozen  as  of  the  moment  it  entered  the 
"take-or-pay"  agreements,  protecting  it  from  the  imposition 
of  any  additional  correlative  obligations  to  noncontracting 
owners.6 

Because  of  my  conclusion  that  Mississippi's  ratable-take 
rule  is  not  pre-empted,  I  also  address  appellant's  contention 
that  the  rule  violates  the  "dormant"  Commerce  Clause.  The 
analysis  is  much  the  same  as  under  the  NGPA.  Indeed,  the 
implicit  "free  market"  purpose  of  that  Clause  would  seem  to 
add  little  to  the  express  congressional  purpose  to  decontrol 
prices,  which  is  the  focus  of  the  pre-emption  analysis.  Here 
the  statute  regulates  evenhandedly  to  effectuate  a  legitimate 
local  public  interest— the  interest  in  both  fair  dealing  on  the 
part  of  joint  owners  and  conservation— and  its  effects  on  in- 
terstate commerce  are  incidental  at  most.  The  question  of 
burden,  therefore,  is  "one  of  degree,"  Pike  v.  Bruce  Church, 
Inc.,  397  U.  S.  137,  142  (1970). 

In  Cities  Service  Gas  Co.  v.  Peerless  Oil  &  Gas  Co.,  supra, 
this  Court  held  that  ratable-take  rules  do  not  violate  the  dor- 
mant Commerce  Clause  because  they  do  not  place  a  signifi- 
cant burden  on  the  out-of-state  interests  in  a  free  market. 


6  Nor  does  the  ratable-take  rule  conflict  with  the  NGPA's  alleged  uni- 
formity or  consumer  protection  purposes.  While  the  congressional  desire 
to  decontrol  prices  uniformly  throughout  the  Nation  includes  an  intent  to 
prevent  States  from  enacting  regulation  to  recontrol  them,  it  does  not 
imply  an  intent  either  to  create  an  anarchistic  regulatory  gap  free  from 
property  rights  and  contract  rules,  or  to  create  a  national  law  of  contracts 
to  govern  natural  gas  relationships. 


436  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

That  analysis  should  control  this  case.      Transco's  interest 
in  a  free  market  is  not  significantly  burdened  because  the 
ratable-take  rule  creates  no  discriminatory  burden  independ- 
ent of  Transco's  supply  contracts.      The  validity  of  a  state 
rule  should  not  depend  on  whether,  in  combination  with  pri- 
vate contracts,  it  contributes  to  a  short-run  burden.      Simi- 
larly, enforcement  of  the  ratable-take  rule  in  combination 
with  the  take-or-pay  obligations  does  not  significantly  burden 
the  free-market  interest  of  out-of-state  natural  gas  consum- 
ers because  the  combination  will  have  virtually  no  effect  on 
consumer  prices.     High-cost  gas  makes  up  only  a  tiny  frac- 
tion of  the  aggregate  supply  of  natural  gas.     See  Pierce,  68 
Va.  L.  Rev.,  at  88,  n.  98  (about  1%).     Thus,  any  increased 
costs  associated  with  it  will  tend  to  be  a  mere  drop  in  the 
bucket.     Moreover,  the  rule  leaves  pipelines  free  to  minimize 
their  losses  by  simply  paying  the   contract  owners   their 
contractual  due,  and  to  pay  no  more  than  the  current  spot 
market  price  for  any  noncontract  gas  it  takes.      Therefore, 
enforcement  of  the  rule  is  unlikely  to  affect  the  downstream 
price  that  consumers  will  pay  in  any  significant  way. 

Nor  was  it  unreasonable  for  Mississippi  to  enforce  its 
ratable-take  rule  when  a  "ratable-production"  rule  might 
have  been  a  less  restrictive  means  of  serving  the  State's 
legitimate  conservation  interest.  The  burden  on  interstate 
commerce  imposed  by  the  "ratable-take"  rule  is  so  minimal 
and  attenuated  that  there  is  no  occasion  to  inquire  into 
the  existence  of  a  "less  restrictive"  means.  Moreover,  a 
"ratable-production"  rule,  as  even  appellant  Transco  agrees, 
would  place  greater  administrative  and  enforcement  burdens 
on  the  Mississippi  regulatory  authorities: 

"[A]n  order  directed  to  the  purchaser  of  the  gas  rather 
than  to  the  producer  would  seem  to  be  the  most  feasible 
method  of  providing  for  ratable  taking,  because  it  is  the 
purchaser  alone  who  has  a  first-hand  knowledge  as  to 
whether  his  takes  from  each  of  his  connections  in  the 
field  are  such  that  production  of  the  wells  is  ratable.  An 


TRANSCONTINENTAL  PIPE  LINE  o.  STATE  OIL  &  GAS  BD.  437 
409  REHNQUIST,  J.,  dissenting 

order  addressed  simply  to  producers  requiring  each  one 
to  produce  ratably  with  others  with  whose  activities  it  is 
unfamiliar  and  over  whose  activities  it  has  no  control 
would  create  obvious  administrative  problems,"  Norft- 
en  Mml  Gas  Co,  v.  State  Corporate  Cmm'n  of 
Earn,  372  U.  S,,  at  100-101  (Man,  J,,  dissenting) 
(footnotes  omitted). 

I  believe  that  Mississippi's  ratable-take  rule  as  applied  to 
high-cost  gas  offends  neither  FERC's  jurisdiction,  the  appli- 
cable provisions  of  the  NGPA,  or  the  Commerce  Clause,  I 
would  therefore  affirm  the  judgment  of  the  Supreme  Court  of 
Mississippi, 


438  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

UNITED  STATES  v.  LANE  ET  AL. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  FIFTH  CIRCUIT 

No.  84-744.     Argued  October  9,  1985— Decided  January  27,  1986* 

James  Lane  and  his  son  Dennis,  respondents  in  No.  84-744,  were  indicted 
on  counts  for,  inter  alia,  mail  fraud  in  connection  with  insurance  claims 
that  were  made  and  that  insurers  paid  for  fire  damage  to  a  restaurant 
and  duplex  that  James  had  hired  a  professional  arsonist  to  burn.     The 
restaurant  was  operated  by  James  in  partnership  with  others.     Count  1 
charged  James  with  mail  fraud  with  regard  to  that  fire.     The  duplex  was 
owned  by  a  different  partnership,  of  which  Dennis  was  one  of  the  part- 
ners.    Counts  2  through  4  charged  both  respondents  with  mail  fraud  re- 
lated to  the  duplex  fire.     Count  5  charged  both  respondents  with  con- 
spiracy to  commit  mail  fraud  in  connection  with  a  third  arson  scheme, 
and  Count  6  charged  Dennis  with  perjury  before  the  grand  jury.     The 
Federal  District  Court  denied  respondents'  pretrial  motions  for  sever- 
ance on  the  alleged  ground  that  the  charged  offenses  were  misjoined  in 
violation  of  Federal  Rule  of  Criminal  Procedure  8(b),  which  provides 
that  two  or  more  defendants  may  be  charged  in  the  same  indictment 
if  they  are  alleged  to  have  participated  "in  the  same  act  or  transaction 
or  in  the  same  series  of  acts  or  transactions  constituting  an  offense  or 
offenses."     The  trial  then  proceeded  jointly  before  a  jury.     When  evi- 
dence relating  to  the  restaurant  fire  was  admitted,  the  court  instructed 
the  jury  not  to  consider  that  evidence  against  Dennis,  and  repeated  this 
instruction  in  the  final  charge  and  admonished  the  jury  to  consider  each 
count  and  defendant  separately.     The  jury  returned  convictions  on  all 
counts.     The  Court  of  Appeals  reversed  and  remanded  for  new  trials, 
holding  that  the  joinder  of  Count  1  with  the  other  five  counts  violated 
Rule  8(b)  and  that  such  misjoinder  was  prejudicial  per  se.     The  court, 
however,  rejected  respondents'  contention  that  there  was  insufficient 
evidence  to  support  convictions  under  Counts  2  through  4  because  each 
charged  mailing  occurred  after  each  related  insurance  payment  had  been 
received  and  thus  after  each  scheme  to  defraud  had  reached  fruition. 
Held: 

1.  Misjoinder  vmder  Rule  8(b)  is  subject  to  harmless-error  analysis 
and  is  not  reversible  error  per  se.     An  error  involving  misjoinder  "af- 


*Together  with  No.  84-963,  Lane  et  al.  v.  United  States,  also  on  certio- 
rari  to  the  same  court. 


UNITED  STATES  u  LANE  439 

438  Opinion  of  the  Court 

fects  substantial  rights"  and  requires  retrial  only  if  the  misjoinder  re- 
sults in  actual  prejudice  because  it  "had  substantial  and  injurious  effect 
or  influence  in  determining  the  jury's  verdict."  KoUeakos  v.  United 
States,  328  U.  S.  750,  776.  It  is  only  by  such  a  holding  that  Rule  8(b) 
and  Federal  Rule  of  Criminal  Procedure  52(a) — which  provides  that  any 
error  'Vhich  does  not  affect  substantial  rights  shall  be  disregarded"— 
can  be  brought  into  substantial  harmony.  Here,  in  the  face  of  over- 
whelming evidence  of  guilt,  the  claimed  error  was  harmless.  The  Dis- 
trict Court  provided  proper  limiting  jury  instructions,  and,  moreover, 
the  same  evidence  on  Count  1  would  likely  have  been  admissible  on  joint 
retrial  of  the  other  counts  to  show  James'  intent  under  Federal  Rule  of 
Evidence  404(b).  Any  error  therefore  failed  to  have  any  "substantial 
influence"  on  the  verdict.  Pp.  444-450. 

2.  There  was  sufficient  evidence  to  support  the  convictions  on  Counts 
2  through  4.  On  the  evidence  and  under  proper  instructions,  the  jury 
could  properly  find  that  the  mailings  charged  in  Counts  2  and  3  took 
place  while  the  overall  scheme  charged  in  the  indictment  was  still  con- 
tinuing and  that  the  scheme  was  not  completed  until  after  the  mailing 
charged  in  Count  4,  because  that  mailing,  as  were  the  others,  was  in- 
tended to  "lull"  the  insurer  into  a  false  sense  of  security.  Pp.  451-453. 
735  F.  2d  799,  affirmed  in  part,  reversed  in  part,  and  remanded. 

BURGER,  C.  J.,  delivered  the  opinion  of  the  Court,  in  which  WHITE, 
POWELL,  REHNQUIST,  and  O'CONNOR,  JJ.,  joined,  and  in  Part  III  of  which 
BRENNAN,  MARSHALL,  BLACKMUN,  and  STEVENS,  JJ.,  joined.  BREN- 
NAN,  J. ,  filed  an  opinion  concurring  in  part  and  dissenting  in  part,  in  which 
BLACKMUN,  J. ,  joined,  post,  p.  453.  STEVENS,  J. ,  filed  an  opinion  concur- 
ring in  part  and  dissenting  in  part,  in  which  MARSHALL,  J.,  joined,  post, 
p.  465. 

Bruce  N.  Kuhlik  argued  the  cause  for  the  United  States. 
With  him  on  the  briefs  were  former  Solicitor  General 
Lee,  Acting  Solicitor  General  Fried,  Assistant  Attorney 
General  Trott,  Deputy  Solicitor  General  Frey,  and  Joel  M. 
Gershowitz. 

Clifford  W.  Brown  argued  the  cause  for  respondents  in 
No.  84-744  and  petitioners  in  No.  84-963.  With  him  on  the 
brief  was  Robert  Michael  Brown. 

CHIEF  JUSTICE  BURGER  delivered  the  opinion  of  the 
Court. 

We  granted  certiorari  to  resolve  a  conflict  among  the  Cir- 
cuits as  to  whether  a  misjoinder  under  Rule  8  of  the  Federal 


440  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Rules  of  Criminal  Procedure  is  subject  to  the  harmless-error 
rule, 1  and  to  determine  whether  there  is  sufficient  evidence 
in  this  case  to  support  convictions  for  mail  fraud  under  18 
U.  S.  C.  §  1341. 

I 

A 

James  Lane  and  three  partners  opened  the  El  Toro  Res- 
taurant in  Amarillo,  Texas,  in  the  summer  of  1978.      The 
business  never  operated  at  a  profit,   however,    and   sales 
began  to  decline  that  fall.     In  November,  Lane  purchased 
fire  insurance  covering  the  building's  contents  and  improve- 
ments and  any  related  business  losses.     Simultaneously,  he 
hired  Sidney  Heard,   a  professional  arsonist,  to  burn  the 
building  in  order  to  escape  the  lease  and  partnership.      On 
February  27,  1979,  Heard  set  a  fire  that  caused  smoke  dam- 
age to  the  building's  contents.     Lane  first  settled  with  the 
insurer  on  the  contents  and  improvements.     He  then  submit- 
ted an  income  statement  that  falsely  indicated  the  restaurant 
had  operated  at  a  profit.      After  the  insurance   adjuster 
mailed  the  statement  to  the  insurer's  headquarters,   Lane 
settled  his  business  interruption  claim. 


1  Six  Circuits  have  adopted  a  per  se  approach  holding  that  misjoinder  is 
always  reversible  error.  See  United  States  v.  Turkette,  632  F.  2d  896, 
906,  and  n.  35  (CA1  1980),  rev'd  on  other  grounds,  452  U.  S.  576  (1981); 
United  States  v.  Graci,  504  F.  2d  411,  414  (CAS  1974);  United  States  v. 
Bova,  493  F.  2d  33  (CA5  1974);  United  States  v.  Bledsoe,  674  F.  2d  647, 
654,  657-658  (CAS),  cert,  denied  sub  nom.  Phillips  v.  United  States,  459 
U.  S.  1040  (1982);  United  States  v.  Eagleston,  417  F.  2d  11,  14  (CA10 
1969);  United  States  v.  Ellis,  709  F.  2d  688,  690  (CA11  1983). 

Six  have  subjected  misjoinder  claims  to  harmless-error  analysis.  See 
United  States  v.  Ajlouny,  629  F.  2d  830,  843  (CA2  1980),  cert,  denied,  449 
U.  S.  1111  (1981);  United  States  v.  Seidel,  620  F.  2d  1006  (CA4  1980); 
United  States  v.  Hatcher,  680  F.  2d  438,  442  (CA6  1982);  United  States  v. 
Varelli,  407  F.  2d  735,  747-748  (CA7  1969);  United  States  v.  Martin,  567 
F.  2d849,  854  (CA9  1977);  Baker  v.  United  States,  131  U.  S.  App.  D.  C.  7, 
21-23,  401  F.  2d  958,  972-974  (1968).  Most  of  these  courts  had  previously 
taken  the  view  that  misjoinder  is  prejudicial  per  se. 


UNITED  STATES  u  LANE  441 

438  Opinion  of  the  Court 

In  early  1980,  Lane  again  hired  Heard  to  set  fire  to  a 
duplex  that  Lane  was  moving  to  a  vacant  lot  in  Amarillo. 
Lane  obtained  a  fire  insurance  policy  on  the  building,  listing 
the  owner  as  L  &  L  Properties,  a  partnership  between  his 
son  Dennis  Lane  and  Andrew  Lawson.  An  accomplice  of 
Heard's  burned  the  duplex  on  May  1,  1980. 

Thereafter,  on  three  occasions  Dennis  Lane  signed  proof-of- 
loss  claims  for  repairs  and  submitted  them  to  an  insurance  ad- 
juster, who  issued  drafts  in  return  totaling  $12, 000. 2  Each 
time,  the  adjuster  later  mailed  the  proof-of-loss  to  the  insur- 
er's headquarters.  The  adjuster  issued  a  final  settlement 
draft  for  $12,250  on  September  16,  1980.  Two  days  later, 
he  mailed  a  memorandum  to  headquarters  explaining  why 
repairs  had  exceeded  previous  estimates  by  some  $10,000. 
He  enclosed  invoices  supplied  by  Dennis  Lane  listing  various 
materials  and  furniture  purportedly  purchased  to  repair  and 
refurbish  the  duplex.  In  fact,  these  invoices  had  been  fabri- 
cated by  James  Lane,  Heard,  and  Heard's  secretary. 

The  Lanes  and  Lawson  met  with  Heard  several  weeks 
after  the  duplex  fire  to  discuss  a  proposal  to  establish  and 
burn  a  flower  shop  in  Lubbock,  Texas.  Heard  and  Dennis 
Lane  picked  out  a  suitable  building  in  July  1980,  and  an 
accomplice  of  Heard's,  William  Lankford,  prepared  ficticious 
invoices  for  merchandise  and  delivered  some  artificial  flowers 
to  the  building  later  in  August.  In  November,  James  Lane 
insured  the  contents  for  $50,000.  Heard,  however,  was  later 
arrested  for  an  unrelated  crime,  and  the  planned  arson  never 
took  place. 

In  March  1981,  an  Amarillo  newspaper  article  connected 
Dennis  Lane  with  a  scheme  to  burn  the  flower  shop  with 
Heard;  that  same  day,  James  Lane  canceled  the  insurance 
policy.  On  May  12,  1981,  Dennis  Lane  appeared  before  a 


2  Each  proof-of-loss  form  stated  that  the  "loss  did  not  originate  by  any 
act,  design  or  procurement  on  the  part  of  your  insured  or  this  affiant"  and 
that  "no  attempt  to  deceive  [the]  company  as  to  the  extent  of  the  loss  has 
been  made." 


442  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

federal  grand  jury  investigating  Heard.  He  testified  that 
Heard  had  nothing  to  do  with  the  flower  shop  or  with  his  own 
dealings  with  Lankford. 

B 

James  Lane  and  Dennis  Lane  were  indicted  in  multiple 
counts  for  mail  fraud  in  violation  of  18  U.  S.  C.  §  1341,  con- 
spiracy in  violation  of  18  U.  S.  C.  §  371,  and  perjury  in  viola- 
tion of  18  U.  S.  C.  §  1623.  Count  1  charged  James  Lane 
with  mail  fraud  with  regard  to  the  El  Toro  Restaurant  fire. 
Counts  2  through  4  charged  both  Lanes  with  mail  fraud  re- 
lated to  the  duplex  fire,  and  Count  5  charged  them  with  con- 
spiracy to  commit  mail  fraud  in  connection  with  the  flower 
shop  arson  plan.  In  Count  6,  Dennis  Lane  was  charged  with 
perjury  before  the  grand  jury. 

Prior  to  trial  in  the  District  Court  for  the  Northern  District 
of  Texas,  the  Lanes  filed  motions  for  severance  contending 
that  the  charged  offenses  were  misjoined  in  violation  of  Fed- 
eral Rule  of  Criminal  Procedure  8(b),  but  the  motions  were 
denied  and  the  trial  proceeded  jointly  before  a  jury.  When 
evidence  relating  to  the  El  Toro  Restaurant  fire  was  admit- 
ted, the  trial  court  instructed  the  jury  not  to  consider  that 
evidence  against  Dennis  Lane.  App.  21.  The  trial  judge  re- 
peated this  instruction  in  the  final  charge,  together  with  an 
instruction  regarding  the  separate  consideration  to  be  given 
each  defendant  and  each  count.  Ibid.  The  Lanes  renewed 
their  severance  motions  at  the  end  of  the  Government's  evi- 
dence and  at  the  close  of  all  evidence,  but  the  motions  were 
again  denied.  The  jury  returned  convictions  on  all  counts. 
On  appeal,  the  Lanes  argued  that  misjoinder  under  Rule 
8(b)  had  occurred.8  The  Court  of  Appeals  for  the  Fifth  Cir- 


8  Rule  8(b)  provides: 

"(b)  Joinder  of  Defendants.  Two  or  more  defendants  may  be  charged  in 
the  same  indictment  or  information  if  they  are  alleged  to  have  participated 
in  the  same  act  or  transaction  or  in  the  same  series  of  acts  or  transactions 
constituting  an  offense  or  offenses.  Such  defendants  may  be  charged  in 


UNITED  STATES  v.  LANE  443 

438  Opinion  of  the  Court 

cuit  concluded  that  Counts  2  through  6  were  properly  joined, 
but  agreed  "that  Count  1  should  not  have  been  joined  with 
the  others  because  it  was  not  part  of  the  same  series  of  acts 
or  transactions  as  Counts  2  through  6."  735  F.  2d  799, 
803-804  (1984).  The  court  refused  to  consider  the  Govern- 
ment's argument  that  the  error,  if  any,  was  harmless,  stating 
only  that  "Rule  8(b)  misjoinder  is  prejudicial  per  se  in  this  cir- 
cuit." Id.,  at  806  (citing  United  States  v.  Levine,  546  F.  2d 
658  (CA5  1977)).  The  court  reversed  the  Lanes'  convictions 
and  remanded  for  new  trials. 

At  the  same  time,  the  Court  of  Appeals  rejected  the  Lanes' 
contention  that  there  was  insufficient  evidence  to  support 
convictions  for  mail  fraud  under  Counts  2  through  4  because 
each  charged  mailing  occurred  after  each  related  payment 
had  been  received,  and  thus  after  each  scheme  had  reached 
fruition.4  The  Court  of  Appeals  distinguished  our  holding  in 
United  States  v.  Maze,  414  U.  S.  395  (1974),  and  instead  re- 
lied on  United  States  v.  Sampson,  371  U.  S.  75  (1962),  to  hold 
that  mailings  occurring  after  receipt  of  an  insurance  payment 
may  nevertheless  be  "in  execution  of  fraud"  as  required  by  18 
U.  S.  C.  §  1341  where  they  are  "designed  to  lull  the  victims 
into  a  false  sense  of  security  and  postpone  investigation." 
735  F.  2d,  at  807-808. 

The  court  found  sufficient  evidence  for  the  properly  in- 
structed jury  to  "infer  that  the  mailings  were  intended  to  and 
did  have  a  lulling  effect"  because  they  helped  persuade  the 
insurer  that  "the  claims  were  legitimate."  Id.,  at  808.  It 
emphasized  that  had  the  proof-of-loss  forms  not  been  mailed 
shortly  after  issuance  of  the  insurance  drafts,  the  insurer 
might  have  been  alerted  to  the  possibility  of  a  fraud.  Ibid. 


one  or  more  counts  together  or  separately  and  all  of  the  defendants  need 
not  be  charged  in  each  count." 

4  The  Court  of  Appeals  also  rejected  James  Lane's  challenge  to  the  suffi- 
ciency of  the  evidence  with  regard  to  Count  1.  That  holding  was  not  chal- 
lenged in  the  Lanes'  cross-petition. 


444  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Similarly,  the  false  invoices  submitted  by  Dennis  Lane  "gave 
the  impression  of  a  perfectly  innocent  claim."     Ibid. 

The  Government's  petition  for  rehearing  was  denied.  741 
F.  2d  1381  (1984).  We  granted  certiorari,  469  U.  S.  1206 
(1985).  We  reverse  in  part  and  affirm  in  part. 

II 

The  Court  of  Appeals  held  that  misjoinder  "is  inherently 
prejudicial."5  735  F.  2d,  at  804.  The  Circuits  are  divided 
on  the  question  whether  misjoinder  requires  automatic  re- 
versal, or  whether  the  harmless-error  rule  governs.6  Most 
Circuits  that  have  adopted  the  per  se  approach  have  relied  on 
McElroy  v.  United  States,  164  U.  S.  76  (1896),  where  this 
Court  applied  the  joinder  statute  then  in  force  and  reversed 
convictions  of  jointly  tried  defendants  after  rejecting  the 
Government's  argument  that  there  was  no  showing  of  preju- 
dice. Id.,  at  81. 

McElroy,  however,  was  decided  long  before  the  adoption 
of  Federal  Rules  of  Criminal  Procedure  8  and  52,  and  prior 
to  the  enactment  of  the  harmless-error  statute,  28  U.  S.  C. 
§2111,  which  provides  that  on  appeal  we  are  to  ignore  "er- 
rors or  defects  which  do  not  affect  the  substantial  rights  of 
the  parties."  Under  Rule  52(a),  we  are  similarly  instructed 
that  any  error  "which  does  not  affect  substantial  rights  shall 
be  disregarded."7 


6  Although  the  Government  continues  to  believe  that  Count  1  was  prop- 
erly joined  with  Counts  2  through  6,  it  does  not  challenge  that  holding 
here. 

6  See  n.  1,  supra. 

7  JUSTICE  STEVENS'  partial  dissent  argues  that  McElroy  conclusively 
determined  misjoinder  is  prejudicial  per  se,  and  that  Rule  8  was  intended 
to  represent  a  restatement  of  existing  law,   including  the  "rule  of  the 
McElroy  case."     Post,  at  467.     Rule  8,  however,  is  simply  a  procedural 
rule  with  certain  technical  requirements,  and  JUSTICE  STEVENS'  opinion 
refers  to  the  Advisory  Committee  on  Rules'  citation  of  McElroy,  see  post, 
at  468,  n.  3,  making  clear  they  were  referring  only  to  those  technical  re- 
quirements of  prior  law.     Nowhere  is  there  any  indication  Rule  8  was  in- 


UNITED  STATES  v.  LANE  445 

438  Opinion  of  the  Court 

The  Court's  holding  in  Chapman  v.  California,  386  U.  S. 
18  (1967),  made  a  significant  change  in  the  law  of  harmless 
error.  There,  Justice  Black,  speaking  for  the  Court,  empha- 
sized that  even  "some  constitutional  errors  [may]  be  deemed 
harmless,  not  requiring  the  automatic  reversal  of  the  convic- 
tion." Id.,  Sit  22.  In  rejecting  the  automatic  reversal  rule, 
the  Court  stated: 

"We  are  urged  by  petitioners  to  hold  that  all  federal  con- 
stitutional errors,  regardless  of  the  facts  and  circum- 
stances, must  always  be  deemed  harmful.  .  .  .  We  de- 
cline to  adopt  any  such  rule."  Id.,  at  21-22  (emphasis 
added). 

Justice  Black  went  on  to  note  that  all  50  States  follow  the 
harmless-error  approach,  and 

"the  United  States  long  ago  through  its  Congress  estab- 
lished .  .  .  the  rule  that  judgments  shall  not  be  reversed 
for  'errors  or  defects  which  do  not  affect  the  substantial 
rights  of  the  parties.'  28  U.  S.  C.  §2111.  None  of 
these  rules  on  its  face  distinguishes  between  federal 
constitutional  errors  and  errors  of  state  law  or  federal 
statutes  and  rules."  Id.,  at  22  (footnote  omitted). 

Since  Chapman,  we  have  "consistently  made  clear  that  it 
is  the  duty  of  a  reviewing  court  to  consider  the  trial  record  as 
a  whole  and  to  ignore  errors  that  are  harmless,  including 
most  constitutional  violations."  United  States  v.  Hasting, 
461  U.  S.  499,  509  (1983).  In  Hasting,  we  again  emphasized 
that 

"given  the  myriad  safeguards  provided  to  assure  a  fair 
trial,  and  taking  into  account  the  reality  of  the  human 
fallibility  of  the  participants,  there  can  be  no  such  thing 
as  an  error-free,  perfect  trial,  and  .  .  .  the  Constitution 
does  not  guarantee  such  a  trial."  Id.,  at  508-509. 


tended  to  enshrine  any  substantive  "principle"  of  McElroy  that  rnisjoinder 
requires  reversal,  nor  is  there  any  citation  of  McElroy 's  specific  holding. 


446  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

In  this  case,  the  argument  for  applying  harmless-error 
analysis  is  even  stronger  because  the  specific  joinder  stand- 
ards of  Rule  8  are  not  themselves  of  constitutional  magni- 
tude.8 Clearly,  Chapman  and  Hasting  dictate  that  the 
harmless-error  rule  governs  here.9 

The  applicability  of  harmless  error  to  misjoinder  also  fol- 
lows from  Kotteakos  v.  United  States,  328  U.  S.  750  (1946),  a 
case  similar  to  the  one  at  hand.  There,  some  32  defendants 
were  charged  with  one  conspiracy,  when  in  fact  there  had 
been  at  least  eight  separate  conspiracies.  Nineteen  defend- 
ants were  jointly  tried,  and  seven  were  convicted.  The 
Court  applied  the  harmless-error  statute  to  an  error  result- 
ing from  a  variance  from  the  indictment,  and  held  the  error 
was  not  harmless  in  that  case.  Emphasizing  the  numerous 
conspiracies  involving  unrelated  defendants,  as  well  as  seri- 
ously flawed  jury  instructions,  the  Kotteakos  Court  reversed 
the  convictions  in  light  of  each  of  the  32  defendants'  "right  not 
to  be  tried  en  masse  for  the  conglomeration  of  distinct  and 
separate  offenses"  involved.  Id. ,  at  775. 


8  Improper  joinder  does  not,  in  itself,  violate  the  Constitution.     Rather, 
misjoinder  would  rise  to  the  level  of  a  constitutional  violation  only  if  it 
results  in  prejudice  so  great  as  to  deny  a  defendant  his  Fifth  Amendment 
right  to  a  fair  trial. 

9  JUSTICE  STEVENS'  partial  dissent  suggests  Chapman  is  irrelevant  to 
our  analysis  because  that  case  involved  a  constitutional  violation,  whereas 
the  error  here  is  of  a  nonconstitutional  nature.     Post,  at  472.     It  is  difficult 
to  see  any  logic  in  the  argument  that  although  the  harmless-error  rule  may 
be  applicable  to  constitutional  violations,  it  should  not  be  applied  to  viola- 
tions of  mere  procedural  rules.     JUSTICE  STEVENS  recognizes  that  the 
standard  for  harmless-error  analysis  adopted  in  Chapman  concerning  con- 
stitutional errors  is  considerably  more  onerous  than  the  standard  for  non- 
constitutional  errors  adopted  in  Kotteakos  v.  United  States,  328  U.  S.  750 
(1946).     See  post,  at  472-473,  n.  11.     The  heightened  regard  we  have  for 
constitutional  protections  surely  warrants  a  conclusion  that  nonconstitu- 
tional provisions  must  be  treated  at  least  comparably,  and  in  Hasting  we 
emphasized  even  '"most  constitutional  violations"  must  be  ignored  if  they 
are  harmless.     461  U.  S.,  at  509. 


UNITED  STATES  v.  LANE  447 

438  Opinion  of  the  Court 

Although  the  Court's  review  in  that  case  was  from  the  per- 
spective of  a  variance  from  the  indictment,  rather  than  mis- 
joinder,  the  Court  recognized  that  misjoinder  was  implicated, 
and  suggested  that  the  harmless-error  rule  could  similarly 
apply  in  that  context.10  Id.,  at  774-775. 

A  holding  directly  involving  misjoinder  again  indicated  the 
harmless-error  rule  should  apply.  In  Schaffer  v.  United 
States,  362  U.  S.  511  (1960),  three  different  groups  of  defend- 
ants were  charged  with  participating  in  separate  criminal 
acts  with  one  other  group  of  three  defendants.  The  indict- 
ment also  charged  all  the  defendants  with  one  overall  count  of 
conspiracy,  making  joinder  under  Rule  8  proper.  At  the 
close  of  the  Government's  case,  however,  the  District  Court 
concluded  there  was  insufficient  evidence  of  conspiracy  and 
dismissed  that  count.  The  court  then  denied  a  motion  for 
severance  after  concluding  that  defendants  failed  to  show 
prejudice  from  the  joint  trial;  the  Court  of  Appeals  affirmed. 
This  Court  recognized  that  "the  charge  which  originally  justi- 
fied joinder  turn[ed]  out  to  lack  the  support  of  sufficient  evi- 
dence." Id.,  at  516.  Essentially,  at  that  point  in  the  trial, 
there  was  a  clear  error  of  misjoinder  under  Rule  8  standards. 
Nevertheless,  the  Schaffer  Court  held  that  once  the  Rule  8 
requirements  were  met  by  the  allegations  in  the  indictment, 
severance  thereafter  is  controlled  entirely  by  Federal  Rule 
of  Criminal  Procedure  14,  which  requires  a  showing  of  prej- 
udice. Id.,  at  515-516.  The  Court  then  affirmed  the  find- 
ing of  no  prejudice.  Although  the  Court  did  not  reach  the 
harmless-error  rule  because  Rule  8(b)  had  initially  been 
satisfied,  the  Court's  language  surely  assumed  the  rule  was 
applicable. 

A  plain  reading  of  these  cases  shows  they  dictate  our  hold- 
ing. Applying  the  1919  statute  treated  in  Kotteakos,  which 


10  The  Court  pointed  out  that  "the  problem  is  not  merely  one  of  variance 
.  .  .  but  is  also  essentially  one  of  proper  joinder."  328  U.  S.,  at  774. 
Even  so,  the  Court  indicated  the  harmless-error  rule  must  apply,  although 
perhaps  with  "restraint."  Id.,  at  775. 


448  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

governed  only  "technical  errors,"  28  U.  S.  C.  §391  (1946 
ed.),  the  Court  emphasized  the  clear  intent  of  Congress  "was 
simple:  To  substitute  judgment  for  automatic  application  of 
rules."  328  U.  S.,  at  759-760.  "In  the  final  analysis  judg- 
ment in  each  case  must  be  influenced  by  conviction  resulting 
from  examination  of  the  proceedings  in  their  entirety,  tem- 
pered but  not  governed  in  any  rigid  sense  of  stare  decisis  by 
what  has  been  done  in  similar  situations."  Id.,  at  762.  The 
Court  flatly  rejected  per  se  rules  regarding  particular  errors 
because  "any  attempt  to  create  a  generalized  presumption  to 
apply  in  all  cases  would  be  contrary  not  only  to  the  spirit  of 
[the  statute]  but  also  to  the  expressed  intent  of  its  legislative 
sponsors."  Id.,  at  765. 

Schaffer  discussed  the  current  harmless-error  statute, 
which  was  enacted  in  1949  after  Kotteakos  and  deleted  the 
qualifying  word  "technical"  regarding  errors  governed  by  the 
rule.  See  28  U.  S.  C.  §  2111.  The  Court  again  rejected  any 
per  se  rule  for  joinder  errors  requiring  reversal,  refusing  to 
"fashion  a  hard-and-fast  formula  that  .  .  .  [the]  joinder  [wa]s 
error  as  a  matter  of  law."  362  U.  S.,  at  516.  Citing 
Kotteakos,  the  Court  pointed  out  that  there  "[t]he  dissent 
agreed  that  the  test  of  injury  resulting  from  joinder  'depends 
on  the  special  circumstances  of  each  case.'"  362  U.  S.,  at 
517  (quoting  328  U.  S.,  at  777  (Douglas,  J.,  dissenting)).11 


11  Contrary  to  these  clear  holdings,  JUSTICE  STEVENS'  partial  dissent  ad- 
vocates a  rule-by-rule  review  establishing  bright-line  per  se  rules  whether 
to  conduct  harmless-error  analysis.  Post,  at  472-474.  But  on  its  face, 
Rule  52(a)  admits  of  no  broad  exceptions  to  its  applicability.  Any  assump- 
tion that  once  a  "substantial  right"  is  implicated  it  is  inherently  "affected" 
by  any  error  begs  the  question  raised  by  Rule  52(a).  Assuming  there  is  a 
"substantial  right,"  the  inquiry  remains  whether  the  error  "affects  sub- 
stantial rights"  requiring  reversal  of  a  conviction.  That  kind  of  inquiry 
requires  a  review  of  the  entire  record.  See  United  States  v.  Hasting,  461 
U.  S.,  at  509.  It  is  simply  too  late  in  the  day  to  argue  that  Congress  in- 
tended to  incorporate  any  per  se  rule  of  McElroy  for  misjoinder  following 
Kotteakos,  the  subsequent  enactment  of  an  arguably  broader  statute,  and 
this  Court's  prejudice  inquiry  in  Schaffer. 


UNITED  STATES  v.  LANE  449 

438  Opinion  of  the  Court 

In  common  with  other  courts,  the  Court  has  long  recog- 
nized that  joint  trials  "conserve  state  funds,  diminish  incon- 
venience to  witnesses  and  public  authorities,  and  avoid  de- 
lays in  bringing  those  accused  of  crime  to  trial."  Bruton  v. 
United  States,  391  U.  S.  123,  134  (1968).  Rule  8  accommo- 
dates these  interests  while  protecting  against  prejudicial 
joinder.  But  we  do  not  read  Rule  8  to  mean  that  prejudice 
results  whenever  its  requirements  have  not  been  satisfied. 

Under  Rule  52(a),  the  harmless-error  rule  focuses  on 
whether  the  error  "affect[ed]  substantial  rights."  In 
Kotteakos  the  Court  construed  a  harmless-error  statute  with 
similar  language,  and  observed: 

"The  inquiry  cannot  be  merely  whether  there  was 
enough  to  support  the  result,  apart  from  the  phase  af- 
fected by  the  error.  It  is  rather,  even  so,  whether  the 
error  itself  had  substantial  influence.  If  so,  or  if  one  is 
left  in  grave  doubt,  the  conviction  cannot  stand."  328 
U.  S.,  at  765. 

Invoking  the  Kotteakos  test,  we  hold  that  an  error  involv- 
ing misjoinder  "affects  substantial  rights"  and  requires  re- 
versal only  if  the  misjoinder  results  in  actual  prejudice  be- 
cause it  "had  substantial  and  injurious  effect  or  influence  in 
determining  the  jury's  verdict."  Id.,  at  776.  Only  by  so 
holding  can  we  bring  Rules  8  and  52(a)  "into  substantial  har- 
mony, not  into  square  conflict."12  Id.,  at  775. 

12  Respondents  argue  that  application  of  the  harmless-error  rule  to  Rule 
8(b)  misjoinder  will  eviscerate  Rule  14,  which  provides  the  trial  court  with 
discretion  to  grant  a  severance  even  if  the  joinder  is  proper  under  Rule  8 
when  it  believes  the  defendants  or  the  Government  may  be  prejudiced  by  a 
joinder.  We  see  no  conflict  with  our  holding  and  the  applicability  of  Rule 
14.  Rule  14's  concern  is  to  provide  the  trial  court  with  some  flexibility 
when  a  joint  trial  may  appear  to  risk  prejudice  to  a  party;  review  of  that 
decision  is  for  an  abuse  of  discretion.  Rule  8(b),  however,  requires  the 
granting  of  a  motion  for  severance  unless  its  standards  are  met,  even  in  the 
absence  of  prejudice;  review  on  appeal  is  for  an  error  of  law.  Applying  the 
harmless-error  rule  to  Rule  8(b)  misjoinder  simply  goes  to  the  additional 
question  whether  the  error  requires  setting  aside  the  convictions.  We 


450  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Of  course,  "we  are  not  required  to  review  records  to  evalu- 
ate a  harmless-error  claim,  and  do  so  sparingly,  [but]  we 
plainly  have  the  authority  to  do  so."  United  States  v.  Hast- 
ing, 461  U.  S.,  at  510  (footnote  omitted). 

In  the  face  of  overwhelming  evidence  of  guilt  shown  here, 
we  are  satisfied  that  the  claimed  error  was  harmless.  When 
evidence  on  misjoined  Count  1  was  introduced,  the  District 
Court  provided  a  proper  limiting  instruction,  and  in  the  final 
charge  repeated  that  instruction  and  admonished  the  jury  to 
consider  each  count  and  defendant  separately.  Moreover, 
the  same  evidence  on  Count  1  would  likely  have  been  admis- 
sible on  joint  retrial  of  Counts  2  through  6  to  show  James 
Lane's  intent  under  Federal  Rule  of  Evidence  404(b).  Any 
error  therefore  failed  to  have  any  "substantial  influence"  on 
the  verdict.  Kotteakos,  supra,  at  765. 1S 


need  not  decide  whether  the  degree  of  prejudice  necessary  to  support  a 
Rule  14  motion  for  severance  is  identical  to  that  necessary  to  require  rever- 
sal for  a  Rule  8(b)  error. 

JUSTICE  STEVENS'  partial  dissent  fails  to  recognize  that  the  Rule  14 
prejudice  component  involves  a  different  inquiry  from  the  Rule  8  technical 
requirements.  Indeed,  the  express  language  of  Rule  14,  as  well  as  the 
Advisory  Committee  Note,  shows  that  Congress  tolerates  some  Rule  8 
joinders  even  when  there  is  prejudice.  The  first  hurdle  in  obtaining 
a  severance  under  Rule  14  is  a  showing  of  prejudice,  and  if  shown,  it  re- 
mains in  the  district  court's  discretion  whether  to  grant  the  motion. 

18  We  can  agree  with  JUSTICE  STEVENS'  partial  dissent  "that  the  harm- 
less-error inquiry  is  entirely  distinct  from  a  sufficiency-of-the-evidence  in- 
quiry." Post,  at  476;  our  reliance  on  the  Kotteakos  test  makes  that  clear. 
See  supra,  at  449.  But  that  does  not  in  any  sense  mean  that  overwhelm- 
ing evidence  of  guilt  is  irrelevant;  the  threshold  of  overwhelming  evidence 
is  far  higher  than  mere  sufficiency  to  uphold  conviction. 

Nor  may  proper  limiting  instructions  or  jury  charges  never  be  "an  ade- 
quate response"  to  a  prejudice  inquiry.  Post,  at  477.  Contrary  to  the 
suggestion  of  the  dissent,  Blumenthal  v.  United  States,  332  U.  S.  539 
(1947),  provides  direct  support  for  the  Court's  approach  in  this  case.  There 
the  Court  recognized  that,  in  the  context  of  mass  trials  (as  in  Kotteakos}, 
limiting  instructions  on  evidence  admissible  only  as  to  one  defendant  might 
in  some  circumstances  be  inadequate  to  prevent  prejudice.  332  U.  S., 


UNITED  STATES  v.  LANE  451 

438  Opinion  of  the  Court 

III 

Respondents  challenge  the  sufficiency  of  the  evidence  to 
sustain  their  convictions.  To  find  a  violation  of  the  mail 
fraud  statute,  18  U.  S.  C.  §  1341, 14  the  charged  "mailings" 
must  be  "for  the  purpose  of  executing  the  scheme."  Kann  v. 
United  States,  323  U.  S.  88,  94  (1944).  Mailings  occurring 
after  receipt  of  the  goods  obtained  by  fraud  are  within  the 
statute  if  they  "were  designed  to  lull  the  victims  into  a  false 
sense  of  security,  postpone  their  ultimate  complaint  to  the 


at  559—560.  But  here,  as  in  Blumenthal,  we  are  not  faced  with  any  trial 
en  masse  of  numerous  defendants  and  unrelated  crimes. 

When  there  are  few  defendants  and  the  trial  court  is  aware  of  the  poten- 
tial for  prejudice,  "the  risk  of  transference  of  guilt  over  the  border  of  ad- 
missibility  [may  be]  reduced  to  the  minimum"  by  carefully  crafted  limiting 
instructions  with  a  strict  charge  to  consider  the  guilt  or  innocence  of  each 
defendant  independently.  Id.,  at  560.  We  cannot  necessarily  "assume 
that  the  jury  misunderstood  or  disobeyed"  such  instructions.  Id. ,  at  553. 
Indeed,  this  Court's  conclusion  in  Schaffer  that  defendants  failed  to  show 
prejudice  was  based  directly  on  the  fact  that  "the  judge  was  acutely  aware 
of  the  possibility  of  prejudice  and  was  strict  in  his  charge— not  only  as  to 
the  testimony  the  jury  was  not  to  consider,  but  also  as  to  that  evidence 
which  was  available  in  the  consideration  of  the  guilt  of  each  [defendant] 
separately  under  the  respective  substantive  counts."  362  U.  S.,  at  516. 

The  same  caution  was  exercised  by  the  trial  judge  here,  and  no  different 
result  should  be  required.  The  Government  initially  observes  that  be- 
cause of  the  similarity  of  each  arson  scheme,  "only  the  court  of  appeals' 
narrow  reading  of  Rule  8"  led  to  its  finding  of  misjoinder.  At  trial,  Heard 
and  Lankford— two  principal  actors — testified  against  both  Lanes,  who  re- 
lied essentially  on  denials  or  character  defenses.  Moreover,  the  evidence 
as  to  Count  1  was  distinct  and  easily  segregated  from  evidence  relating  to 
Counts  2  through  6.  The  misjoinder  error,  if  any,  in  these  circumstances 
was  harmless. 

14  The  statute  provides  in  relevant  part: 

'Whoever,  having  devised  or  intending  to  devise  any  scheme  or  artifice 
to  defraud,  .  .  .  for  the  purpose  of  executing  such  scheme  or  artifice  .  .  .  , 
places  in  any  post  office  or  authorized  depository  for  mail  matter,  any  mat- 
ter or  thing  whatever  to  be  sent  or  delivered  by  the  Postal  Service,  ...  or 
knowingly  causes  to  be  delivered  by  mail  .  .  .  any  such  matter  or  thing, 
shall  be  fined  not  more  than  $1,000  or  imprisoned  not  more  than  five  years, 
or  both." 


452  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

authorities,  and  therefore  make  the  apprehension  of  the 
defendants  less  likely  than  if  no  mailings  had  taken  place." 
United  States  v.  Maze,  414  U.  S.,  at  403.  See  United  States 
v.  Sampson,  371  U.  S.  75  (1962). 

Only  Counts  2  through  4,  involving  the  duplex  fire,  are  at 
issue.  The  Lanes  argue  that  each  mailing  occurred  after 
irrevocable  receipt  of  the  related  payment,  and  thus  after 
each  scheme  to  defraud  came  to  fruition.16  This  argument 
misconstrues  the  nature  of  the  indictment,  which  charged  an 
overall  scheme  to  defraud  based  on  the  events  surrounding 
the  duplex  fire.  Counts  2  through  4  merely  relate  to  sepa- 
rate mailings  concerning  partial  payments  that  were  a  part  of 
the  whole  scheme.  The  jury  could  properly  find  the  scheme, 
at  the  earliest,  was  not  completed  until  receipt  of  the  last 
payment  on  September  16,  1980,  which  finally  settled  their 
claim.  Hence,  the  mailings  charged  in  Counts  2  and  3  clearly 
took  place  while  the  scheme  was  still  continuing. 

Moreover,  the  jury  could  reasonably  have  found  that  the 
scheme  was  not  completed  until  the  final  mailing  on  Septem- 
ber 18,  1980,  charged  in  Count  4,  because  that  mailing  was 
intended  (as  were  the  two  earlier  ones)  to  "lull"  the  insurer 
into  a  false  sense  of  security.16  The  jury  was  properly  in- 


15  The  Government  contends  that  undisputed  testimony  shows  the  insur- 
ance drafts  issued  to  the  Lanes,  unlike  normal  business  checks,  were  not 
payable  on  demand  but  only  upon  authorization  from  the  insurer's  home 
office  when  they  arrived  at  the  insurer's  bank  for  collection.  If  the  drafts 
deposited  by  the  Lanes  had  been  dishonored  by  the  insurer's  banks,  the 
amounts  would  have  been  charged  against  their  account.  The  Lanes, 
therefore,  may  not  have  irrevocably  received  the  proceeds  of  the  fraud 
prior  to  the  final  mailing.  See  Brief  for  United  States  30-31.  The  Court 
of  Appeals,  however,  did  not  rely  on  this  argument,  and  we  decline  to 
resolve  this  factual  issue  here. 

16  Our  conclusion  that  the  delayed  mailings  at  issue  in  this  action  were 
part  of  an  ongoing  scheme  to  defraud  is  in  accord  with  our  holding  in 
United  States  v.  Sampson,  371  U.  S.  75  (1962).  In  that  case,  defendants 
purported  to  help  businessmen  obtain  loans  or  sell  their  businesses  in  ex- 
change for  an  "advance  fee."  Id.,  at  77.  Following  the  deposit  of  checks 
for  these  fees,  the  defendants'  plan  called  for  the  mailing  of  a  form  letter 
assuring  the  victims  of  the  fraud  that  they  were  receiving  the  services  they 


UNITED  STATES  v.  LANE  453 

438  Opinion  of  BRENNAN,  J. 

structed  that  each  charged  mailing  must  have  been  made 
both  "for  the  purpose  of  executing  the  scheme  to  defraud," 
App.  22,  and  prior  to  the  scheme's  completion,  id.,  at  23,  and 
further  that  mailings  "which  facilitate  concealment  of  the 
scheme"  are  covered  by  the  statute.17  Id.,  at  24. 

The  judgment  of  the  Court  of  Appeals,  ordering  a  new  trial 
based  on  misjoinder  of  Count  1  with  Counts  2  through  6,  is 
reversed  in  part  and  affirmed  in  part,  and  the  action  is  re- 
manded for  further  proceedings  consistent  with  this  opinion. 

It  is  so  ordered. 

JUSTICE  BRENNAN,  joined  by  JUSTICE  BLACKMUN,  con- 
curring in  part  and  dissenting  in  part. 

I  agree  that  the  evidence  was  sufficient  to  sustain  the  mail 
fraud  convictions  and  therefore  join  Part  III  of  the  Court's 

paid  for.  Id.,  at  78.  The  Court  upheld  defendants'  convictions  for  mail 
fraud  because  of  the  "lulling  effect"  of  the  delayed  mailings. 

We  see  no  conflict  with  our  holding  in  United  States  v.  Maze,  414  U.  S. 
395  (1974).  There,  use  of  a  stolen  credit  card  led  to  the  mailing  of  charge 
statements  to  a  bank.  We  held  that  the  fraud  was  completed  upon  the  de- 
frauder's  receipt  of  the  goods,  distinguishing  Sampson  because  the  mailing 
of  the  charge  slips,  rather  than  acting  to  "lull"  the  bank  into  acquiescence, 
instead  "increased  the  probability  that  [the  defrauder]  would  be  detected 
and  apprehended."  414  U.  S.,  at  403.  Had  the  Lanes  failed  to  submit 
timely  proof-of-loss  forms  here,  the  insurer  might  very  well  have  discov- 
ered the  fraud. 

The  Lanes  contend  that  the  Fifth  Circuit's  decision  in  this  action  also 
conflicts  with  United  States  v.  Ledesma,  632  F.  2d  670  (CA7),  cert,  denied, 
449  U.  S.  998  (1980),  which  reversed  a  conviction  involving  the  mailing  of  a 
fraudulent  proof-of-loss  form  after  receipt  of  insurance  proceeds.  In  that 
case,  however,  the  Seventh  Circuit  never  discussed  Sampson  or  the  pos- 
sibility that  the  delayed  mailing  had  any  "lulling"  effect. 

17  The  Lanes  argue  that  the  Government  must  show  that  the  charged 
mailings  were  specifically  intended  to  lull,  rather  than  showing  simply 
a  general  intention  on  their  part  to  defraud,  in  order  to  come  within 
Sampson's  holding.  We  need  not  determine  whether  any  such  specific  in- 
tent must  be  shown,  as  we  agree  with  the  Court  of  Appeals  that  there  was 
sufficient  evidence  for  the  jury  to  infer  specific  intent  to  lull  here  under 
these  instructions,  which  the  Lanes  did  not  challenge  on  appeal  or  in  their 
cross-petition. 


454  OCTOBER  TERM,  1985 

Opinion  of  BRENNAN,  J.  474  U.  S. 

opinion.  I  also  agree  that  the  Court  of  Appeals  erred  in 
holding  that  misjoinder  under  Rule  8  of  the  Federal  Rules  of 
Criminal  Procedure  is  prejudicial  per  se.  I  write  separately, 
however,  because  my  reasons  for  reaching  this  conclusion 
differ  from  the  Court's,  and  because  I  agree  with  JUSTICE 
STEVENS  that  the  harmless-error  inquiry  should  be  made  in 
the  first  instance  by  the  Court  of  Appeals. 


The  Act  of  February  26,  1919  (1919  Act),  40  Stat.   1181, 
amended  §  269  of  the  Judicial  Code.     It  provided  in  part: 

"On  the  hearing  of  any  appeal,  certiorari,  writ  of 
error,  or  motion  for  a  new  trial,  in  any  case,  civil  or  crim- 
inal, the  court  shall  give  judgment  after  an  examination 
of  the  entire  record  before  the  court,  without  regard  to 
technical  errors,  defects,  or  exceptions  which  do  not  af- 
fect the  substantial  rights  of  the  parties."  28  U.  S.  C. 
§391  (1925-1926  ed.). 

In  1949,  this  provision  was  reenacted  in  its  current  form  as  28 
U.  S.  C.  §2111,  and  now  instructs  appellate  courts  to  "give 
judgment  after  an  examination  of  the  record  without  regard 
to  errors  or  defects  which  do  not  affect  the  substantial  rights 
of  the  parties."  The  1919  Act  was  also  incorporated  in  the 
Federal  Rules  of  Criminal  Procedure,  and  Rule  52(a)  pro- 
vides that  "[alny  error,  defect,  irregularity  or  variance  which 
does  not  affect  substantial  rights  shall  be  disregarded."  See 
also,  Fed.  Rule  Civ.  Proc.  61  ("The  court  at  every  stage  of 
the  proceeding  must  disregard  any  error  or  defect  in  the  pro- 
ceeding which  does  not  affect  the  substantial  rights  of  the 
parties").  Although  §  2111  and  Rule  52(a)  refer  to  "errors  or 
defects"  without  the  qualifying  word  "technical,"  this  change 
did  not  alter  the  substantive  legal  test.  See  H.  R.  Rep. 
No.  352,  81st  Cong.,  1st  Sess.,  18  (1949)  (§2111  "[i]ncorpo- 
rates"  former  harmless-error  statute);  Advisory  Committee's 


UNITED  STATES  v.  LANE  455 

438  Opinion  of  BRENNAN,  J. 

Notes  on  Fed.  Rule  Grim.  Proc.  52(a),  18  IL  S.  C.  App., 
p.  657  (Rule  is  a  "restatement  of  existing  law"). 

The  1919  Act,  §2111,  and  Rule  52(a)  all  provide  that  an 
error  is  to  be  disregarded  unless  it  "affects  the  substantial 
rights  of  the  parties."  This  litigation  thus  presents  a 
straightforward  question  of  statutory  construction:  what 
does  the  phrase  "affects  the  substantial  rights  of  the  parties" 
mean?  Respondents  in  No.  84-744  contend  that  the  term 
"substantial  rights"  refers  to  a  particular  class  of  rights 
which  are  essential  to  a  fair  trial  and  argue  that  errors  which 
"affect"  these  rights  cannot  be  disregarded  on  appeal.  Ac- 
cording to  respondents,  the  1919  Act,  as  reenacted  in  §2111 
and  Rule  52(a),  incorporated  our  holding  in  McElroy  v. 
United  States,  164  U.  S.  76  (1896),  that  joinder  is  one  of  these 
"substantial  rights,"  so  that  misjoinder  is  per  se  reversible. 

For  the  reasons  which  follow,  I  conclude  that  the  question 
whether  a  particular  error  "affects  the  substantial  rights  of 
the  parties"  does  not  entail  a  process  of  classification, 
whereby  some  rights  are  deemed  "substantial"  and  errors  af- 
fecting these  rights  are  automatically  reversible.  Rather, 
an  error  "affects  substantial  rights"  only  if  it  casts  doubt  on 
the  outcome  of  the  proceeding.  In  other  words,  subject  to 
the  exceptions  discussed  in  Part  II  (most  importantly  the  ex- 
ception for  constitutional  errors),  I  read  §2111  and  Rule  52(a) 
to  require  harmless-error  inquiry  for  all  procedural  errors. 
As  none  of  these  exceptions  is  applicable  to  misjoinder  in  vi- 
olation of  Rule  8,  I  concur  in  the  Court's  result  on  this  issue. 

Reference  to  whether  error  "affected  the  substantial  rights 
of  the  parties"  was  not  invented  by  Congress  in  1919.  The 
phrase  was  commonly  used  by  courts  throughout  the  19th 
century  to  express  the  conclusion  that  particular  claims  of 
error  did  or  did  not  warrant  reversal.  However,  as  used  by 
these  courts,  error  which  "affected  the  substantial  rights  of 
the  parties"  was  generally  understood  to  refer,  not  to  errors 
respecting  a  particular  class  of  rights,  but  rather  to  any  error 
which  affected  the  fairness  of  the  trial  as  a  whole  by  calling 


456  OCTOBER  TERM,  1985 

Opinion  of  BRENNAN,  J.  474  U.  S. 

into  question  the  reliability  of  the  result.  See,  e.  g.,  Con- 
nors v.  United  States,  158  U.  S.  408,  411,  414  (1895);  Maish 
v.  Arizona,  164  U.  S.  599,  602  (1896);  Williams  v.  United 
States,  168  U.  S.  382,  390-398  (1897);  American  Surety  Co. 
v.  Pauly,  170  U.  S.  133,  159  (1898);  McCabe  &  Steen  Constr. 
Co.  v.  Wilson,  209  U.  S.  275,  279  (1908);  Holmgren  v.  United 
States,  217  U.  S.  509,  523-524  (1910).  In  other  words,  the 
statement  that  an  error  did  not  "affect  the  substantial  rights 
of  the  parties"  was  a  way  of  stating  the  conclusion  that  the 
error  was  not  prejudicial. 

A  careful  reading  of  McElroy   demonstrates  that  it  is 
consistent  with  this  understanding  of  the  phrase  "affects 
the  substantial  rights  of  the  parties."      In  McElroy,  five 
defendants  were  charged  in  two  indictments  with  separate 
assaults  and  in  a  third  indictment  with  arson.     Three  of  the 
defendants  were  also  charged  in  yet  a  fourth  indictment  with 
another  assault.     After  explaining  these  charges,  the  Court 
noted  that  "it  is  the  settled  rule  ...  to  confine  the  indict- 
ment to  one  distinct  offence  or  restrict  the  evidence  to  one 
transaction"  because  "[i]n  cases  of  felony,  the  multiplication 
of  distinct  charges  has  been  considered  so  objectionable  as 
tending  to  confound  the  accused  in  his  defence,  or  to  preju- 
dice him  as  to  his  challenges  .  .  .  ."     164  U.  S.,  at  80.     The 
Court  then  stated:  "Necessarily  where  the  accused  is  de- 
prived of  a  substantial  right  by  the  action  of  the  trial  court, 
such  action,  having  been  properly  objected  to,  is  revisable  on 
error."     Ibid.     In  context,  this  merely  restates  the  common- 
law  understanding  that  an  error  is  reversible  if  it  prejudices 
the  defendant.      The  Court  did  not  state  that  joinder  is  a 
"substantial  right"  and,  for  this  reason,  any  error  respect- 
ing joinder  is  reversible.     Rather,  the  Court  held  that  "[i]t 
cannot  be  said  in  [a  case  of  improper  joinder]  that  all  the 
defendants  may  not  have  been  embarrassed  and  prejudiced  in 
their  defence,  or  that  the  attention  of  the  jury  may  not  have 
been  distracted  to  their  injury  in  passing  upon  distinct  and 
independent  transactions."     Id.,  at  81.     In  other  words,  the 


UNITED  STATES  v.  LANE  457 

438  Opinion  of  BRENNAN,  J. 

Court  concluded  that  misjoinder  is  the  kind  of  error  which 
must  be  presumed  to  have  prejudiced  the  accused  and,  for 
that  reason,  misjoinder  affects  his  "substantial  rights."  As 
discussed  in  Part  II,  the  irrebuttable  presumption  that  mis- 
joinder  is  prejudicial  is  inconsistent  with  the  Court's  sub- 
sequent harmless-error  jurisprudence  and  can  be  overruled. 
For  the  moment,  however,  it  is  important  only  to  note  that 
nothing  in  McElroy  suggests  that  the  requirement  that  error 
have  "affect[ed]  the  substantial  rights  of  the  parties"  refers 
to  anything  other  than  that  the  error  have  been  prejudicial. 

Absent  some  contrary  indication,  then,  it  would  seem  logi- 
cal to  conclude  that  when  Congress  used  the  phrase  "affect[s] 
the  substantial  rights  of  the  parties"  in  the  1919  Act,  Con- 
gress meant  to  require  an  inquiry  into  whether  an  error  cast 
doubt  on  the  verdict,  not  to  create  a  class  of  rights  as  to 
which  error  was  per  se  reversible.  The  legislative  history  of 
the  1919  Act  confirms  that  this  was  in  fact  what  Congress 
intended. 

The  primary  impetus  for  the  enactment  of  the  1919  Act 
was  the  practice  in  some  jurisdictions  of  reversing  convic- 
tions on  appeal  for  any  procedural  error  at  trial,  without  re- 
gard to  whether  the  error  was  prejudicial.  See  Kotteakos  v. 
United  States,  328  U.  S.  750,  758-759  (1946).  There  was 
also  concern  over  the  inconsistent  application  of  harmless- 
error  analysis  by  other  courts,  this  Court  in  particular.  See 
H.  R.  Rep.  No.  913,  65th  Cong.,  3d  Sess.,  2  (1919)  (quoting 
H.  R.  Rep.  No.  611,  62d  Cong.,  2d  Sess.,  2  (1912)).  The 
large  number  of  reversals  which  resulted  from  failure  to  scru- 
tinize errors  for  their  prejudicial  effect  was  criticized  by  lead- 
ers of  the  legal  profession,  including  Taf t,  Pound,  Wigmore, 
and  Hadley.  See  Kotteakos,  supra,  at  758-759.  After  pro- 
longed consideration,  Congress  responded  to  this  criticism  by 
passing  the  1919  Act.  The  House  Report  accompanying  the 
Act  explained: 

"  'It  is  the  purpose  of  the  .  .  .  bill  to  enact,  in  so  far  as  the 
appellate  courts  are  concerned,  that  in  the  consideration 


458  OCTOBER  TERM,  1985 

Opinion  of  BRENNAN,  J.  474  U.  S. 

in  an  appellate  court  of  a  writ  of  error  or  an  appeal  judg- 
ment shall  be  rendered  upon  the  merits  without  permit- 
ting reversals  for  technical  defects  in  the  procedure 
below  and  without  presuming  that  any  error  which  may 
appear  had  been  of  necessity  prejudicial  to  the  complain- 
ing party.9'9  H.  R.  Rep.  No.  913,  supra,  at  2  (quoting 
H.  R.  Rep.  No.  611,  supra,  at  2)  (emphasis  added). 

The  theme  that  reversal  be  limited  to  prejudicial  errors  is 
found  throughout  the  legislative  history.     For  example,  the 
Report  accompanying  the  first  version  of  the  bill  to  pass  the 
House  of  Representatives  explained  the  meaning  of  the  re- 
quirement that  error  be  disregarded  unless  it  "affect[s]  the 
substantial  rights  of  the  parties"  by  quoting  from  an  article 
by  President  Taf  t:  "  'No  judgment  of  the  court  below  should 
be  reversed  except  for  an  error  which  the  court,  after  hear- 
ing [sic]  the  entire  evidence,  can  affirmatively  say  would 
have  led  to  a  different  verdict.'"     H.  R.  Rep.  No.  1949,  61st 
Cong.,  3d  Sess.,  1  (1911)  (quoting  Taft,  The  Administration 
of  Criminal  Law,  15  Yale  L.  J.  1,  16  (1905)).      The  Report 
criticized  the  practice   of  reversing  judgments   for  errors 
which  "did  not  in  the  least  affect  the  substantial  rights  of  the 
parties,  the  real  merits  of  the  case  having  been  properly  ad- 
judicated upon  the  first  trial."     H.  R.  Rep.  No.  1949,  supra, 
at  2  (emphasis  added).      See   also,   ibid,    (quoting  Justice 
O'Gorman  of  the  New  York  Supreme  Court  to  the  effect  that 
"[o]ne  of  the  gravest  faults  with  our  present  mode  of  trial  is 
the  ease  and  frequency  with  which  judgments  are  reversed 
on  technicalities  which  do  not  affect  the  merits  of  the  case, 
and  which  at  no  stage  of  the  case  have  affected  the  merits"); 
H.  R.  Rep.  No.  1218,  63d  Cong.,  3d  Sess.  (1914);  H.  R.  Rep. 
No.  264,  64th  Cong.,  1st  Sess.  (1916). 

Our  decision  in  Kotteakos  v.  United  States,  supra,  fore- 
closes any  remaining  questions  as  to  the  interpretation  of 
the  phrase  "affects  substantial  rights  of  the  parties."  In 
Kotteakos,  we  expressly  rejected  the  argument  that  the  1919 
Act  required  a  determination  of  "what  are  only  technical, 


UNITED  STATES  «.  LANE  459 

438  Opinion  of  BRENNAN,  J. 

what  substantial  rights;  and  what  really  affects  the  latter 
hurtfully."  328  U.  S.,  at  761.  We  held  instead  that  the 
Act's  command  to  disregard  errors  unless  they  "affect  the 
substantial  rights  of  the  parties"  was  a  command  not  to 
overturn  a  conviction  unless,  after  examining  the  record  as  a 
whole,  the  court  concludes  that  an  error  may  have  had  "sub- 
stantial influence"  on  the  outcome  of  the  proceeding.  Id. , 
at  765.  Justice  Rutledge's  explanation,  which  includes  a 
description  of  the  proper  analysis  to  apply  in  evaluating  the 
effect  of  procedural  errors,  is  well  worth  repeating: 

"It  comes  down  on  its  face  to  a  very  plain  admonition: 
T)o  not  be  technical,  where  technicality  does  not  really 
hurt  the  party  whose  rights  in  the  trial  and  in  its  out- 
come the  technicality  affects/  .  .  . 

"Easier  was  the  command  to  make  than  it  has  been  al- 
ways to  observe.  This,  in  part  because  it  is  general;  but 
in  part  also  because  the  discrimination  it  requires  is  one 
of  judgment  transcending  confinement  by  formula  or 
precise  rule.  That  faculty  cannot  ever  be  wholly  impris- 
oned in  words,  much  less  upon  such  a  criterion  as  what 
are  only  technical,  what  substantial  rights;  and  what 
really  affects  the  latter  hurtfiilly.  Judgment,  the  play  of 
impression  and  conviction  along  with  intelligence,  varies 
with  judges  and  also  with  circumstance.  What  may  be 
technical  for  one  is  substantial  for  another;  what  minor 
and  unimportant  in  one  setting  crucial  in  another. 

"In  the  final  analysis  judgment  in  each  case  must  be 
influenced  by  conviction  resulting  from  examination  of 
the  proceedings  in  their  entirety,  tempered  but  not  gov- 
erned in  any  rigid  sense  of  stare  decisis  by  what  has  been 
done  in  similar  situations.  Necessarily  the  character  of 
the  proceeding,  what  is  at  stake  upon  its  outcome,  and 
the  relation  of  the  error  asserted  to  casting  the  balance 


460  OCTOBER  TERM,  1985 

Opinion  of  BRENNAN,  J.  474  U.  S. 

for  decision  on  the  case  as  a  whole,  are  material  factors 
in  judgment. 

"If,  when  all  is  said  and  done,  the  conviction  is  sure 
that  the  error  did  not  influence  the  jury,  or  had  but  very 
slight  effect,  the  verdict  and  the  judgment  should  stand, 
except  perhaps  where  the  departure  is  from  a  constitu- 
tional norm  or  a  specific  command  of  Congress.  But  if 
one  cannot  say,  with  fair  assurance,  after  pondering  all 
that  happened  without  stripping  the  erroneous  action 
from  the  whole,  that  the  judgment  was  not  substantially 
swayed  by  the  error,  it  is  impossible  to  conclude  that 
substantial  rights  were  not  affected.  The  inquiry  can- 
not be  merely  whether  there  was  enough  to  support  the 
result,  apart  from  the  phase  affected  by  the  error.  It  is 
rather,  even  so,  whether  the  error  itself  had  substantial 
influence.  If  so,  or  if  one  is  left  in  grave  doubt,  the  con- 
viction cannot  stand."  Id.,  at  760-765  (citations  and 
footnotes  omitted).1 

II 

This  interpretation  of  §2111  and  Rule  52(a)  as  requiring 
examination  of  the  prejudicial  effect  of  all  procedural  errors 
is  subject  to  several  exceptions.  First,  and  most  impor- 
tantly, constitutional  errors  are  governed  by  the  Due  Process 
Clauses  of  the  Fifth  and  Fourteenth  Amendments  rather 
than  by  §2111  and  Rule  52(a).  See  Chapman  v.  California, 
386  U.  S.  18  (1967);  United  States  v.  Hasting,  461  U.  S.  499 
(1983).  Thus,  the  test  for  harmless  constitutional  error  is 
stricter  than  its  statutory  counterpart.  Compare,  Chap- 
man, supra,  at  24  (prosecution  must  establish  that  the  error 

1  It  scarcely  needs  repeating  that,  since  correction  may  come  from  the 
legislature,  considerations  of  stare  decisis  are  at  their  strongest  when  this 
Court  confronts  its  previous  constructions  of  a  statute.  Cf.  Burnet  v. 
Coronado  Oil  &  Gas  Co  ,  285  U.  S.  393,  406-407  (1932)  (Brandeis,  J., 
dissenting). 


UNITED  STATES  v.  LANE  461 

438  Opinion  of  BRENNAN,  J. 

was  "harmless  beyond  a  reasonable  doubt"),  with  Kotteakos, 
328  U.  S.,  at  765  (error  is  harmless  unless  it  had  "substantial 
influence"  on  the  outcome  or  leaves  one  in  "grave  doubt"  as  to 
whether  it  had  such  effect).2  In  addition,  Congress  may,  of 
course,  expressly  provide  that  a  particular  right  is  excluded 
from  the  operation  of  the  harmless-error  rule.  Neither  of 
these  exceptions  applies  to  misjoinder  in  violation  of  Rule  8, 
however.  Misjoinder  does  not  ordinarily  rise  to  the  level 
of  a  constitutional  violation,8  and  nothing  in  the  language  or 


2  Until  Chapman  v.  California,  386  U.  S.  18  (1967),  harmless-error 
analysis  was  considered  inapplicable  to  errors  respecting  constitutional 
rights.  See  id.t  at  42-44  (Stewart,  J.,  concurring  in  result)  ("[I]n  a  long 
line  of  cases,  involving  a  variety  of  constitutional  claims  in  both  state  and 
federal  prosecutions,  this  Court  has  steadfastly  rejected  any  notion  that 
constitutional  violations  might  be  disregarded  on  the  ground  that  they 
were  'harmless'"  (citing  and  discussing  examples));  see  also,  Kotteakos, 
328  U.  S.,  at  764-765,  and  n.  19.  In  Chapman,  we  altered  this  practice 
and  held  that  "there  may  be  some  constitutional  errors  which  in  the  setting 
of  a  particular  case  are  so  unimportant  and  insignificant  that  they  may, 
consistent  with  the  Federal  Constitution,  be  deemed  harmless,  not  requir- 
ing the  automatic  reversal  of  the  conviction."  386  U.  S. ,  at  22.  Although 
we  have  since  held  that  the  Chapman  harmless-error  test  applies  to  "most 
constitutional  violations,"  United  States  v.  Hasting,  461  U.  S.,  at  509, 
harmless-error  analysis  remains  inapplicable  to  many  constitutional  rights. 
E.  g. ,  Vasquez  v.  Hillery,  ante,  p.  254  (discrimination  in  grand  jury  selec- 
tion); Connecticut  v.  Johnson,  460  U.  S.  73,  84-88  (1983)  (opinion  of 
BLACKMUN,  J.)  (Sandstrorn  violation);  Gideon  v.  Wainwright,  372  U.  S. 
335  (1963)  (right  to  counsel);  Tumey  v.  Ohio,  273  U.  S.  510  (1927)  (right  to 
impartial  tribunal). 

Because  the  source  and  nature  of  the  harmless-error  test  for  constitu- 
tional errors  does  not  derive  from  §2111  or  Rule  52(a),  our  cases  concern- 
ing constitutional  errors  do  not  affect,  and  are  not  affected  by,  our  decision 
today,  which  applies  only  to  the  statutory  harmless-error  doctrine. 

8  But  cf.  Bruton  v.  United  States,  391  U.  S.  123  (1968).  It  is  also  possi- 
ble that  a  particular  case  of  misjoinder  may  be  so  egregious  as  to  constitute 
a  deprivation  of  due  process.  If  this  were  the  case,  the  error  would  be 
governed  by  Chapman  rather  than  by  §2111  or  Rule  52(a).  See  n.  4, 
infra.  Of  course,  a  joinder  of  claims  or  parties  that  was  so  improper  as  to 
violate  the  Due  Process  Clause  would  undoubtedly  also  be  prejudicial. 


462  OCTOBER  TERM,  1985 

Opinion  of  BRENNAN,  J.  474  U.  S. 

history  of  either  the  statutory  harmless-error  provisions  or 
Rule  8  indicates  that  Congress  chose  to  except  misjoinder 
from  harmless-error  scrutiny.4 

JUSTICE  STEVENS'  partial  dissent  recognizes  two  further 
exceptions:  (1)  "when  an  independent  value  besides  reliability 
of  the  outcome  suggests  that  [harmless-error]  analysis  is  in- 
appropriate," and  (2)  "when  the  harmlessness  of  the  error 
cannot  be  measured  with  precision."  Post,  at  474.  Al- 
though the  cases  he  cites  to  support  these  additional  excep- 
tions involved  constitutional  errors,  JUSTICE  STEVENS  may 
well  be  correct  in  asserting  that  they  also  apply  to  errors  gov- 
erned by  the  statutory  harmless-error  provisions.  I  need 
not  decide  that  question  to  conclude,  as  does  JUSTICE  STE- 
VENS, that— like  the  first  two  exceptions— neither  applies  to 
misjoinder. 

The  applicability  of  the  exception  to  protect  values  other 
than  reliability  is  easily  disposed  of.  Rules  respecting 
joinder  are  based  on  recognition  that  the  multiplication 
of  charges  or  defendants  may  confuse  the  jury  and  lead  to 
inferences  of  habitual  criminality  or  guilt  by  associa- 
tion. McElroy,  164  U.  S.,  at  80.  Apart  from  this,  how- 
ever, joinder  rules  do  not  serve  "an  independent  value 
besides  reliability  of  the  outcome"  justifying  an  exception  to 
the  harmless-error  principle.  Surely  it  cannot  be  maintained 
that  misjoinder  affects  a  right  so  fundamental  to  a  fair  trial 
that  it  "'infectCs]  the  validity  of  the  underlying  judgment 
itself,  or  the  integrity  of  the  process  by  which  that  judgment 
was  obtained.'"  Post,  at  474,  n.  15  (quoting  Rose  v.  Lundy, 
455  U.  S.  509,  544  (1982)  (STEVENS,  J.,  dissenting)). 


4  As  explained  above,  the  1919  Act  was  not  intended  to  codify  a  rule  of 
per  se  reversal  for  particular  rights,  much  less  for  misjoinder.  Similarly, 
as  the  majority  points  out,  nothing  in  the  legislative  history  of  Rule  8  indi- 
cates an  intent  to  do  anything  more  then  set  forth  the  technical  require- 
ments for  and  limitations  on  the  joinder  of  claims  or  defendants.  Ante,  at 
444-445,  n.  7. 


UNITED  STATES  v.  LANE  463 

438  Opinion  of  BRENNAN,  J. 

The  exception  for  errors  as  to  which  the  prejudicial  effect 
cannot  be  measured  with  precision  requires  closer  consider- 
ation. As  previously  noted,  McElroy  held  that  misjoinder  is 
per  se  reversible  because  a  court  can  never  safely  conclude 
that  it  was  not  prejudicial.  164  IL  S.,  at  81.  However, 
trial  courts  routinely  inquire  into  possible  prejudice  from 
joint  trials  when  considering  motions  for  severance  under 
Federal  Rule  of  Criminal  Procedure  14,  and  appellate  courts 
just  as  routinely  perform  that  inquiry  in  reviewing  Rule  14 
rulings.5  To  be  sure,  problems  of  jury  confusion  arising 
from  misjoinder  may  be  substantial.  It  is  also  quite  easy  for 
the  jury  to  be  prejudiced  by  evidence  of  other  crimes  or  by 
inferences  from  an  accused's  association  with  other  defend- 
ants. Thus,  it  may  be  that,  once  the  proper  test  for  harm- 
less error  is  applied,  most  misjoinders  will  in  fact  result  in 
reversal.  However,  the  prejudice  that  may  result  from  mis- 
joinder  is  not  so  difficult  to  ascertain  that  it  must  always  be 
presumed  to  be  present.  Whatever  force  the  holding  in 
McElroy  may  once  have  had,  its  precedential  force  has  been 
greatly  eroded  by  the  1919  Act,  whose  legislative  history  dis- 
approves of  such  presumptions,  supra,  at  457-458,  and  by 
subsequent  decisions  such  as  Kotteakos.6  Today,  adherence 
to  the  view  that  misjoinder  is  per  se  prejudicial  would  stand 
out  as  a  stark  and  unjustified  anomaly,  leading  to  just  the 
sort  of  unnecessary  reversals  that  inspired  enactment  of  the 


5  The  Court  correctly  notes  in  its  opinion,  see  ante,  at  449-450,  n.  12, 
that  while  the  nature  of  the  inquiry  under  Rules  8  and  14  is  similar,  the 
purposes  and  scope  of  these  Rules  are  different. 

6  Kotteakos  rejected  the  argument  that  variance  between  the  indict- 
ment and  proof  at  trial  should  be  per  se  reversible  because  such  errors 
"naturally"  result  in  prejudice.      Relying  on  the  legislative  history  of  the 
harmless-error  rule,  the  Court  concluded  that  such  presumptions  should 
not  lightly  be  inferred.     "The  only  permissible  presumption,"  the  Court 
said,  "would  seem  to  be  particular,  arising  from  the  nature  of  the  error  and 
'its  natural  effect'  for  or  against  prejudice  in  the  particular  setting."     328 
U.  S.,  at  765-766. 


464  OCTOBER  TERM,  1985 

Opinion  of  BRENNAN,  J.  474  U.  S. 

1919  Act.      To  the  extent  that  McElroy  states  a  contrary 
holding,  I  would  overrule  it. 

Ill 

The  Court  goes  on  to  resolve  the  harmless-error  question. 
I  respectfully  dissent.  To  begin  with,  I  agree  with  JUSTICE 
STEVENS  that  "[undertaking  a  harmless-error  analysis  is 
perhaps  the  least  useful  function  that  this  Court  can  per- 
form." Post,  at  476.  See  United  States  v.  Hasting,  461 
U.  S.,  at  520,  n.  2  (opinion  of  BRENNAN,  J.);  see  also, 
Connecticut  v.  Johnson,  460  U.  S.  73,  102  (1983)  (POWELL, 
J.,  dissenting).  Having  concluded  that  a  harmless-error  in- 
quiry is  required,  I,  like  JUSTICE  STEVENS,  think  we  should 
remand  to  the  Court  of  Appeals,  which  is  in  a  better  position 
than  we  are  to  study  the  complete  trial  record  with  care. 

Moreover,  it  is  apparent  that  the  Court's  perfunctory  ef- 
fort to  evaluate  the  effect  of  this  error  is  inadequate.      The 
Court  tells  us  simply  that  the  error  is  harmless  "[i]n  the  face 
of  overwhelming  evidence  of  guilt  shown  here  .  .  .  ."     Ante, 
at  450.     But  where  is  the  "examination  of  the  proceedings  in 
their  entirety"  called  for  by  Kotteakos?     See  328  U.  S.,  at 
762.     Kotteakos  instructs  the  reviewing  court  to  "ponde[r]  all 
that  happened  without  stripping  the  erroneous  action  from 
the  whole,"  and  expressly  states  that  "[t]he  inquiry  cannot  be 
merely  whether  there  was  enough  to  support  the  result, 
apart  from  the  phase  affected  by  the  error."     Id.,  at  765. 
Obviously,  the  existence  of  overwhelming  evidence  is  rele- 
vant to  determining  the  "effect  the  error  had  or  reasonably 
may  be  taken  to  have  had  upon  the  jury's  decision."     Id.,  at 
764.     But  I  would  have  thought  it  equally  obvious  that,  at 
the  very  least,  consideration  of  the  magnitude  of  the  error  in 
the  context  of  the  trial  would  also  be  called  for;  this  the  Court 
has  not  done.     The  Court  also  tells  us  that  the  error  was 
harmless  because  the  same  evidence  "would  likely  have  been 
admissible"  at  a  joint  retrial  of  the  defendants  without  the 
improper  count.      Ante,   at  450.      However,   as   I  thought 


UNITED  STATES  v.  LANE  465 

438  Opinion  of  STEVENS,  J. 

Kotteakos  made  clear,  that  is  irrelevant.  The  crucial  thing  is 
the  effect  the  error  had  in  the  proceedings  which  actually 
took  place,  not  whether  the  same  thing  could  have  been  done 
in  hypothetical  proceedings.  See  328  U.  S.,  at  762-765. 
Harmless-error  analysis  is  not  an  excuse  for  overlooking 
error  because  the  reviewing  court  is  itself  convinced  of  the 
defendant's  guilt.  The  determination  of  guilt  is  for  the  jury 
to  make,  and  the  reviewing  court  is  concerned  solely  with 
whether  the  error  may  have  had  a  "substantial  effect"  upon 
that  body. 

Justice  Traynor  of  the  California  Supreme  Court  wrote 
that  "the  evaluation  of  an  error  as  harmless  or  prejudicial  is 
one  of  the  most  significant  tasks  of  an  appellate  court,  as  well 
as  one  of  the  most  complex."  R.  Traynor,  The  Riddle  of 
Harmless  Error  80  (1970).  It  is  a  task  this  Court  is  mani- 
festly ill-equipped  to  undertake.  See  United  States  v.  Hast- 
ing, supra,  at  516—518  (STEVENS,  J.,  concurring  in  judg- 
ment). I  would  remand  the  cases  for  the  Court  of  Appeals  to 
undertake  the  task. 

JUSTICE  STEVENS,  with  whom  JUSTICE  MARSHALL  joins, 
concurring  in  part  and  dissenting  in  part. 

Rule  52(a)  of  the  Federal  Rules  of  Criminal  Procedure 
provides: 

"Harmless  Error.  Any  error,  defect,  irregularity  or 
variance  which  does  not  affect  substantial  rights  shall  be 
disregarded."  (Emphasis  added.) 

The  question  presented  in  No.  84-744  is  whether  a  mis- 
joinder  of  defendants  prohibited  by  Rule  8(b)  is  an  error 
which  affects  substantial  rights.1  In  my  opinion,  the  Court 

1  Rule  8(b)  of  the  Federal  Rules  of  Criminal  Procedure  provides:  "Two  or 
more  defendants  may  be  charged  in  the  same  indictment  or  information  if 
they  are  alleged  to  have  participated  in  the  same  act  or  transaction  or  in 
the  same  series  of  acts  or  transactions  constituting  an  offense  or  offenses. 
Such  defendants  may  be  charged  in  one  or  more  counts  together  or  sepa- 
rately and  all  of  the  defendants  need  not  be  charged  in  each  count." 


466  OCTOBER  TERM,  1985 

Opinion  of  STEVENS,  J.  474  U.  S. 

has  answered  that  question  incorrectly;  moreover,  its  opin- 
ion unfortunately  confuses  rather  than  clarifies  the  law  of 
"harmless  error." 

I 

Our  central  task  is,  of  course,  to  construe  Rule  8(b)  of  the 
Federal  Rules  of  Criminal  Procedure.  Thus,  we  must  con- 
sider the  history,  purpose,  and  language  of  that  Rule. 

Prior  to  the  adoption  of  the  Federal  Rules  of  Criminal  Pro- 
cedure, this  Court  decided  that  the  misjotnder  of  defendants, 
as  well  as  the  misjoinder  of  offenses,  was  an  error  that  de- 
prived the  accused  of  "a  substantial  right."  McElroy  v. 
United  States,  164  U.  S.  76,  80  (1896).  McElroy  concerned 
both  kinds  of  misjoinder.  Five  defendants  were  charged 
with  offenses  committed  on  April  16,  1894,  and  May  1,  1894, 
but  only  three  of  them  were  charged  with  a  separate  offense 
committed  on  April  16,  1894.  The  two  defendants  who  were 
not  charged  with  the  separate  offense  made  essentially  the 
same  objection  to  their  joint  trial  as  did  Dennis  Lane  in  this 
case.  As  to  those  two  defendants,  the  Government  con- 
fessed error  and  the  Court  unanimously  reversed  and  re- 
manded for  a  new  trial.2  As  to  the  other  three  defendants, 

2  "It  is  clear  that  the  statute  does  not  authorize  the  consolidation  of  in- 
dictments in  such  a  way  that  some  of  the  defendants  may  be  tried  at  the 
same  time  with  other  defendants  charged  with  a  crime  different  from  that 
for  which  all  are  tried. 

"It  is  admitted  by  the  government  that  the  judgments  against  Stuffte- 
beam  and  Charles  Hook  must  be  reversed  .  .  .  ."  164  U.  S.,  at  80. 

In  confessing  error,  the  Government  seemed  to  concede  that  reversal 
was  appropriate  without  any  specific  showing  of  prejudice.  See  Brief  for 
United  States  in  McElroy  v.  United  States,  O.  T.  1896,  No.  402,  p.  6  ("It 
cannot  be  certainly  affirmed  that  Stuffiebeam  and  Charles  Hook  were  not 
embarrassed  and  prejudiced,  in  their  defense  to  the  indictments  under 
which  they  stood  charged,  by  the  fact  that  they  were  compelled  to  make 
their  defense  in  a  proceeding  in  which  McElroy,  Bland,  and  Hook  were 
prosecuted  for  arson  committed  April  16,  1894,  which  was  on  the  same  day 
of  the  assaults  and  fifteen  days  before  the  arson  for  which  they  were 
tried"). 


UNITED  STATES  u  LANE  467 

438  Opinion  of  STEVENS,  J. 

the  majority  of  the  Court  held  that  a  misjoinder  of  offenses 
had  occurred,  and  required  a  new  trial  without  any  special 
showing  of  prejudice.  After  reviewing  the  misjoinder  of 
defendants  and  of  offenses,  the  Court  concluded: 

"Necessarily  where  the  accused  is  deprived  of  a  substan- 
tial right  by  the  action  of  the  trial  court,  such  action, 
having  been  properly  objected  to,  is  revisable  on  error." 
Ibid. 

Thus,  almost  a  half  century  before  the  adoption  of  Rule  8,  the 
Court  squarely  held  that  protection  against  misjoinder  was  a 
"substantial  right,"  and  that  the  violation  of  the  misjoinder 
rule  required  reversal. 

Today,  the  Court  does  not  dispute  that  McElroy  required 
reversal  for  misjoinder.  Instead,  the  Court  suggests,  rather 
obliquely,  that  three  developments  have  undermined  that 
holding:  (1)  the  adoption  of  Rule  8;  (2)  the  adoption  of  Rule 
52(a)  and  the  passage  of  the  harmless-error  statute;  and  (3) 
the  development  of  a  harmless-error  doctrine  in  constitu- 
tional law.  Ante,  at  444-446.  The  reliance  on  the  harmless- 
error  developments  will  be  addressed  in  more  detail.  Since 
we  are  construing  Rule  8,  however,  the  majority's  bare  cita- 
tion to  it — and  apparent  reliance  on  the  history  of  its  pas- 
sage—must be  first  considered. 

The  majority  seems  to  be  of  the  view  that  the  adoption  of 
Rule  8  cast  doubt  on  the  validity  of  McElroy.  Ante,  at  444. 
Far  from  disavowing  McElroy,  however,  the  Federal  Rules 
continued  the  misjoinder  rule.  The  notes  of  the  Advisory 
Committee  on  Rules  state  that  both  subdivisions  of  Rule  8 
represent  "substantially  a  restatement  of  existing  law." 
Neither  the  text  of  Rule  8,  nor  the  Advisory  Committee 
Notes,  nor  the  history  of  the  Rule  contains  any  suggestion 
that  Rule  8  was  intended  to  change  the  rule  of  the  McElroy 
case.  Indeed,  the  Advisory  Committee  displayed  a  keen 
awareness  of  the  McElroy  precedent  by  citing  the  opinion  in 


468  OCTOBER  TERM,  1985 

Opinion  of  STEVENS,  J.  474  U.  S. 

its  discussion  of  misjoinder.3  At  the  time  the  Federal  Rules 
were  being  considered,  moreover,  commentators  shared  the 
Advisory  Committee's  view  that  the  Rules  merely  continued 
the  misjoinder  doctrine  in  its  then  current  form,  and  restated 
existing  law.4  The  principle  that  misjoinder  deprives  the 
accused  of  "a  substantial  right"  and  therefore  is  "revisable 
on  error"  thus  remained  the  law  when  the  Federal  Rules  of 
Criminal  Procedure  became  effective  in  1946. 

Furthermore,  if  one  reads  Rule  8  in  conjunction  with  Rule 
14,  it  is  immediately  apparent  that  the  draftsmen  of  the 
Rules  regarded  every  violation  of  Rule  8  as  inherently  preju- 
dicial. For  Rule  14  authorizes  the  Court  to  grant  a  sever- 
ance, even  in  the  absence  of  a  Rule  8  violation,  if  either 
the  defendant  or  the  Government  is  prejudiced  by  a  joinder 
of  offenses  or  defendants.5  Thus,  it  seems  clear  that  the 
draftsmen  of  the  Rules  regarded  violations  of  Rule  8  as  inher- 
ently prejudicial,  and  recognized  that  even  joinders  that  were 
not  prohibited  by  the  Rule  should  be  forbidden  if  a  party 

8  See  5  Federal  Rules  of  Criminal  Procedure:  Documentary  History, 
Second  Preliminary  Draft,  Feb.  1944,  Note  to  Rule  8,  pp.  35-36  ("Since  the 
counts  of  two  or  more  indictments  consolidated  for  trial,  under  18  U.  S.  C. 
§  557,  are  'put  ...  in  the  same  category  as  if  they  were  separate  counts  in 
one  indictment/  McElroy  v.  United  States,  164  U.  S.  76,  77  (1896),  this 
type  of  joinder  is  more  widely  practiced  than  is  generally  realized"). 

4  See  Maguire,  Proposed  New  Federal  Rules  of  Criminal  Procedure,  23 
Ore.  L.  Rev.  56,  59  (1943)  ("Subdivision  (b)  of  Rule  9  provides  for  a  joinder 
of  defendants  where  they  are  alleged  to  have  participated  in  the  same  act 
or  transaction  or  in  the  same  series  of  acts  or  transactions  constituting  or 
resulting  in  an  offense,  and  that  they  may  be  charged  in  one  or  more 
counts,  together  or  separately,  in  any  manner  indicating  their  respective 
participation  in  the  offense  or  offenses.  .  .  .  This  rule  merely  restates  the 
present  Federal  statute  .  .  .").  "Rule  9"  became  the  current  "Rule  8" 
without  substantial  change.  See  Orfield,  Joinder  in  Federal  Criminal 
Procedure,  26  F.  R.  D.  23,  28-29  (1960). 

6  Rule  14  provides,  in  pertinent  part:  "If  it  appears  that  a  defendant  or 
the  government  is  prejudiced  by  a  joinder  of  offenses  or  of  defendants  in  an 
indictment  or  information  or  by  such  joinder  for  trial  together,  the  court 
may  order  an  election  or  separate  trials  of  counts,  grant  a  severance  of 
defendants  or  provide  whatever  other  relief  justice  requires." 


UNITED  STATES  v.  LANE  469 

438  Opinion  of  STEVENS,  «L 

could  demonstrate  actual  prejudice.  This  is  the  way  Profes- 
sor Charles  Wright  interpreted  the  intent  of  the  draftsmen  in 
his  1969  treatise.  He  wrote: 

"Indeed  there  would  be  no  point  in  having  Rule  8  if  the 
harmless  error  concept  were  held  applicable  to  it.  If 
that  concept  could  be  applied,  then  defendant  could 
obtain  reversal  only  if  the  joinder  were  prejudicial  to 
him.  But  Rule  14  provides  for  relief  from  prejudicial 
joinder,  and  a  defendant  can  obtain  a  reversal,  in  theory 
at  least,  if  he  has  been  prejudiced  even  though  the  join- 
der was  proper.  If  misjoinder  can  be  regarded  as  harm- 
less error,  then  reversal  could  be  had  only  for  prejudice 
whether  the  initial  joinder  was  proper  or  improper.  If 
that  were  true,  it  would  be  pointless  to  define  in  Rule  8 
the  limits  on  joinder,  since  it  would  no  longer  be  of  sig- 
nificance whether  those  limits  were  complied  with,  and 
the  draftsmen  would  have  been  better  advised  to  allow 
unlimited  joinder  of  offenses  and  defendants,  subject  to 
the  power  of  the  court  to  give  relief  if  the  joinder  were 
prejudicial."  1  C.  Wright,  Federal  Practice  and  Proce- 
dure, §144,  p.  329  (1969).6 

Other  commentators  have  agreed  that  the  structure  of  the 
Federal  Rules  strongly  supports  the  conclusion  that  the 
draftsmen  viewed  a  violation  of  the  misjoinder  rule  as  inher- 
ently prejudicial.7 

6  In  his  current  edition,  Professor  Wright  notes  that  a  number  of  fed- 
eral courts  have  held  that  misjoinder  may  be  harmless  error,  but  he  con- 
cludes that  "there  remains  much  to  be  said  for  what  was  once  the  almost- 
unanimous  view  that  misjoinder  is  never  harmless  error."     1  C.  Wright, 
Federal  Practice  and  Procedure:  Criminal,  §  145,  p.  532  (2d  ed.  1982). 

7  See  Note,  Harmless  Error  and  Misjoinder  Under  the  Federal  Rules  of 
Criminal  Procedure:  A  Narrowing  Division  of  Opinion,  6  Hofstra  L.  Rev. 
533,  544,  n.  65  (1978)  ("Implicit  in  the  assertion  that  rule  8  sets  the  limits  of 
tolerable  prejudice  is  the  argument  that  if  its  purpose  is  not  to  set  such 
limits  there  is  no  purpose  in  the  rule.     Rule  14  would  vest  all  questions  of 
joinder  in  the  trial  court.  .  .  .  As  both  rule  14  and  rule  8  were  included  in 
the  rules,  rule  8  must  have  been  intended  to  establish  the  outer  bounds 


470  OCTOBER  TERM,  1985 

Opinion  of  STEVENS,  J.  474  U.  S. 

Thus,  a  review  of  the  state  of  the  law  of  joinder  at  the  time 
the  Federal  Rules  of  Criminal  Procedure  were  adopted,  of 
the  Advisory  Committee's  intent  to  restate  then-existing 
law,  and  of  the  text  of  the  Rules  themselves  requires  a  con- 
clusion that  a  Rule  8  misjoinder  violation  is  an  error  that 
affects  the  substantial  rights  of  the  accused  and  therefore 
requires  reversal  of  a  conviction. 

II 

In  addition  to  its  unexplained  reference  to  the  adoption 
of  Rule  8,  the  Court  suggests  that  its  new  misjoinder  rule- 
that  prejudice  must  be  shown  to  justify  reversal  of  a  Rule  8 
misjoinder  error— is  supported  by  its  interpretation  of  devel- 
opments in  the  law  of  "harmless-error."  Specifically,  the 
Court  observes  that  the  McElroy  approach  has  been  under- 
mined by  the  passage  of  a  harmless-error  statute  and  rule, 
ante,  at  444,  and  by  the  development  of  a  harmless-error  doc- 
trine for  constitutional  errors,  ante,  at  445.  Although  the 
majority  does  not  distinguish  between  these  two  categories, 
they  require  separate  analysis.  Neither  category,  however, 
remotely  supports  the  majority's  bald  assertion  that  misjoin- 
der should  not  be  viewed  as  affecting  "substantial  rights," 
and  thus  not  be  viewed  as  inherently  prejudicial. 

The  majority  refers  to  the  current  harmless-error  statute, 
28  U.  S.  C.  §  2111,  and  to  Rule  52(a).  As  the  majority  points 
out,  both  define  harmless  error  in  terms  of  whether  a  viola- 
tion affects  "substantial  rights."8  Since  this  Court  had 
already  made  clear  that  misjoinder  affected  "substantial 

within  which  the  trial  court  has  discretionary  power  under  rule  14").  In 
my  view,  the  majority's  discussion  of  this  issue,  ante,  at  449-450,  n.  12, 
fails  to  answer  this  straightforward  reading  of  Rule  8  and  Rule  14. 

8  See  28  U.  S.  C.  §  2111  ("On  the  hearing  of  any  appeal  or  writ  of  certio- 
rari  in  any  case,  the  court  shall  give  judgment  after  an  examination  of  the 
record  without  regard  to  errors  or  defects  which  do  not  affect  the  substan- 
tial rights  of  the  parties");  Fed.  Rule  Grim.  Proc.  52(a)  ("Any  error,  defect, 
irregularity  or  variance  which  does  not  affect  substantial  rights  shall  be 
disregarded"). 


UNITED  STATES  u  LANE  471 

438  Opinion  of  STEVENS,  J. 

rights,"  McElroy,  164  U.  S.  76  (1896),  it  is  curious  that  the 
majority  concludes,  with  no  support  at  all,  that  the  passage  of 
a  statute  and  Rule  which  allowed  for  correction  of  errors  that 
did  not  affect  "substantial  rights"  somehow  changed  the  legal 
status  of  a  violation  that  had  been  described  in  precisely 
those  words.  This  view  is  especially  curious  when  it  is 
remembered  that  the  Rule  governing  joinder  was  viewed  by 
the  draftsmen  as  a  restatement  of  existing  law. 

To  be  sure,  McElroy  was  decided  before  the  first  harm- 
less-error statute  was  passed  in  1919.  That  statute,  a  reac- 
tion to  the  hypertechnicality  that  had  developed  in  American 
jurisprudence,  did  mark  a  significant  change  in  our  system's 
view  of  the  effect  of  error.9  But  it  is  a  long  leap  from  that 
recognition  to  a  view  that  the  passage  of  the  harmless-error 
statute  in  1919 — and  the  subsequent  adoption  of  Rule  52(a)  in 
1946  and  the  passage  of  the  current  harmless-error  statute  in 
1949 — summarily  jettisoned  all  prior  jurisprudence  on  the 
errors  that  affected  "substantial  rights."  Indeed,  inter- 
pretations of  the  1919  statute  accorded  it  a  very  different 
mission.  As  Justice  Frankfurter  explained  in  refusing  to 
require  a  showing  of  prejudice  to  justify  reversal  for  a  statu- 
tory violation:  "Suffice  it  to  indicate,  what  every  student  of 
the  history  behind  the  Act  of  February  26,  1919,  knows,  that 
that  Act  was  intended  to  prevent  matters  concerned  with  the 
mere  etiquette  of  trials  and  with  the  formalities  and  minutiae 
of  procedure  from  touching  the  merits  of  a  verdict."  Bruno 
v.  United  States,  308  U.  S.  287,  294  (1939).  And,  while  Eule 
52(a)  and  the  1949  harmless-error  statute  were  changed  in  a 
way  that  some  commentators  have  found  significant,10  the 

9  For  a  discussion  of  the  background  of  the  1919  statute,  see  Kotteakos 
v.  United  States,  328  U.  S.  750,  758-760  (1946). 

10  The  1919  statute  referred  to  "technical  errors,  defects,  or  exceptions 
which  do  not  affect  the  substantial  rights  of  the  parties. "    40  Stat.  1 181 ,  28 
U.  S.  C.  §  391  (1946  ed.)  (emphasis  added).     Eule  52(a)  referred  to  "[a]ny 
error,  defect,  irregularity  or  variance  which  does  not  affect  substantial 
rights";  the  1949  statute  referred  to  "errors  or  defects  which  do  not  affect 
the  substantial  rights  of  the  parties."     28  U.  S.  C.  §2111.      See  Note,  6 


472  OCTOBER  TERM,  1985 

Opinion  of  STEVENS,  J.  474  U.  S. 

continuation  of  "substantial  rights"  as  the  benchmark  for 
assessing  the  harrnlessness  of  error  provides  no  support  for 
the  proposition  that  anyone  intended  to  change  something 
that  had  been  found  to  affect  a  "substantial  right"  into  some- 
thing that  did  not  affect  a  substantial  right. 

Thus,  neither  the  harmless-error  statute,  passed  within  a 
few  years  of  the  adoption  of  Rule  8,  nor  Rule  52(a),  adopted 
at  the  same  time  as  Rule  8,  changed  the  interpretation  of  the 
misjoinder  rule  reflected  in  Rule  8. 

The  harmless-error  statute  and  Rule  are,  however,  at  least 
relevant  to  the  inquiry  at  hand.  In  contrast,  the  majority's 
reliance  on  Chapman  v.  California,  386  U.  S.  18  (1967), 
ante,  at  445,  is  plainly  misplaced.  The  majority  observes: 
"Clearly,  Chapman  and  Hasting  dictate  that  the  harmless- 
error  rule  governs  here."  Ante,  at  446.  Nothing  could  be 
less  clear.  This  case  does  not  involve  a  claim  of  constitu- 
tional error.  The  harmless-error  doctrine  that  was  enunci- 
ated in  Chapman  thus  does  not  settle  the  issue  raised  by  this 
case.  Simply  because  constitutional  errors  may  be  subject 
to  a  harmless-error  inquiry  does  not  mean  that  all  noncon- 
stitutional  errors  must  be  subject  to  harmless-error  analysis, 
and  this  Court  has  never  so  held.11  Rather,  our  mission  in 


Hofstra  L.  Rev.,  supra  n.  7,  at  540  (discussing  possible  significance  of 
change).  But  cf.  H.  R.  Rep.  No.  352,  81st  Cong.,  1st  Sess.,  18  (1949) 
(new  harmless-error  statute  intended  to  "incorporate"  former  harmless- 
error  statute);  Rule  52(a),  Notes  of  Advisory  Commitee  on  Rules,  18 
U.  S.  C.  App.,  p.  657  (Rule  intended  as  "a  restatement  of  existing  law"); 
Kotteakos  9  328  U.  S.,  at  757,  n.  9  (citing  Advisory  Committee  comment 
that  Rule  52(a)  was  intended  as  "  *a  restatement  of  existing  law' "). 

"That  the  Court  has  recognized  the  difference  between  constitutional 
and  nonconstitutional  harmless-error  inquiries  is  reflected  in  the  consider- 
able difference  in  the  Court's  standards  on  these  two  subjects.  Compare 
Chapman,  386  U.  S.,  at  24  ("before  a  federal  constitutional  error  can  be 
held  harmless,  the  court  must  be  able  to  declare  a  belief  that  it  was  harm- 
less beyond  a  reasonable  doubt"),  with  Kotteakos  v.  United  States,  328 
U.  S.,  at  765  (in  nonconstitutional  cases,  "[t]he  inquiry  ...  is  ...  whether 
the  error  itself  had  substantial  influence").  To  the  extent  that  the  major- 
ity ultimately  cites  the  Kotteakos  standard  as  governing  this  case,  ante,  at 


UNITED  STATES  v.  LANE  473 

438  Opinion  of  STEVENS,  J. 

reviewing  nonconstitutional  errors  is,  first,  to  discern 
whether  the  rule  or  statute  which  is  being  violated  was  in- 
tended to  be  subject  to  harmless-error  analysis.  If  there  is 
a  definitive  answer  to  that  question,  our  inquiry  should  be 
at  an  end.12  If  there  is  no  definitive  answer,  then  we  must 
try  to  assess  the  rule  or  statute  in  question  in  light  of  the  pur- 
pose of  the  harmless-error  rule  and  statute.  We  should  not, 
however,  rewrite  existing  law  by  adopting  a  presumption 
that,  simply  because  a  violation  is  nonconstitutional,  it  is 
automatically  subject  to  harmless-error  inquiry. 

As  the  majority  observes,  the  Court's  willingness  to  invoke 
the  harmless-error  doctrine  has  expanded  dramatically  in 
recent  years.  This  expansion  is  a  source  of  considerable  con- 
cern,13 particularly  because  the  Court  has  often  been  unclear 
and  imprecise  in  its  increasingly  frequent  invocation  of  harm- 


449,  it  is  consistent  with  this  distinction  in  our  case  law;  to  the  extent  that 
the  majority  suggests  that  Chapman  controls  the  outcome  of  this  case, 
however,  ante,  at  446,  it  reveals  confusion  about  this  distinction. 

12  Cf.    Chevron   U.  S.  A.   Inc.   v.   Natural  Resources  Defense  Council, 
Inc.,  467  U.  S.  837,  842-843  (1984)  ("If  the  intent  of  Congress  is  clear,  that 
is  the  end  of  the  matter;  for  the  court  .  .  .  must  give  effect  to  the  unam- 
biguously expressed  intent  of  Congress"). 

13  See  Comment,  Harmless  Error:  Abettor  of  Courtroom  Misconduct,  74 
J.  Crim.  L.  &  C.  457,  475  (1983)  ("The  harmless  error  standards  as  cur- 
rently applied  in  review  of  criminal  trials  are  eroding  the  integrity  of  the 
criminal  justice  system  by  encouraging  violations  of  longstanding  trial 
rules");  Goldberg,  Harmless  Error:  Constitutional  Sneak  Thief,  71  J.  Crim. 
L.   &  C.  421,  422  (1980)  ("the  doctrine  of  harmless  constitutional  error 
destroys  important  constitutional  and  institutional  values")",  Note,  Harmful 
Use  of  Harmless  Error  in  Criminal  Cases,  64  Cornell  L.  Rev.  538,  540 
(1979)  ("increased  use  of  harmless  error  analysis  is  inherently  dangerous 
regardless  of  whether  the  errors  violate  the  Constitution,  statutes,  or  the 
common  law")  (footnotes  omitted);  Cameron  &  Osborn,  When  Harmless 
Error  Isn't  Harmless,  1971  Law  &  Social  Order  23,  42  ("while  the  harmless 
error  doctrine  is  an  extremely  useful  device  .  .  .  it  is  not  one  that  is  without 
its  dangers").      Cf.  United  States  v.  Jackson,  429  F.  2d  1368,  1373  (CA7 
1970)  (Clark,  J.,  sitting  by  designation)  ("'Harmless  error'  is  swarming 
around  the  7th  Circuit  like  bees.  .  .  .  [T]he  courts  may  have  to  act  to  cor- 
rect a  presently  alarming  situation"). 


474  OCTOBER  TERM,  1985 

Opinion  of  STEVENS,  J.  474  U.  S. 

less  error.14  In  my  view,  harmless-error  analysis  is  inappro- 
priate in  at  least  three  situations:  (1)  when  it  is  clear  that  a 
statute  or  Rule  was  not  intended  to  be  subject  to  such  a  rule; 
(2)  when  an  independent  value  besides  reliability  of  the  out- 
come suggests  that  such  analysis  is  inappropriate;15  and  (3) 
when  the  harmlessness  of  an  error  cannot  be  measured  with 
precision.16  In  iny  view,  misjoinder  clearly  falls  into  the  first 


14  See  Field,  Assessing  the  Harmlessness  of  Federal  Constitutional 
Error-A  Process  in  Need  of  a  Rationale,  125  U.  Pa.  L.  Rev.  15,  32  (1976) 
("In  sum,  the  case  law  on  the  content  of  the  harmless  error  standard  is  less 
than  lucid.  There  is  some  indication  that  Supreme  Court  opinions  slip 
back  and  forth  from  one  suggested  standard  to  another,  without  explicit 
notice  of  the  change,  though  the  change  could  produce  different  results  in 
many  cases");  Saltzburg,  The  Harm  of  Harmless  Error,  59  Va.  L.  Rev.  988 
(1973)  ("Chaos  surrounds  the  standard  for  appellate  review  of  errors  in 
criminal  proceedings");  Mause,  Harmless  Constitutional  Error:  The  Impli- 
cations of  Chapman  v.  California,  53  Minn.  L.  Rev.  519,  557  (1969)  ("the 
Court,  if  only  in  an  effort  to  further  the  interest  of  net  judicial  economy, 
should  attempt  to  delineate  certain  well-defined  classes  of  constitutional 
error  which  require  automatic  reversal"). 

15  In  the  constitutional  area,  the  Court  has  made  clear  that  certain  in- 
dependent values  render  a  harmless-error  analysis  inappropriate.      See, 
e.  g.,  Rose  v.  Mitchell,  443  U.  S.  545  (1979)  (racial  discrimination  in  the 
selection  of  a  grand  jury  is  not  subject  to  harmless-error  analysis);  Chap- 
man, 386  U.  S.,  at  23  ("there  are  some  constitutional  rights  so  basic  to  a 
fair  trial  that  their  infraction  can  never  be  treated  as  harmless  error"). 
Cf.  Rose  v.  bundy,  455  U.  S.  509,  544  (1982)  (STEVENS,  J.,  dissenting) 
(some  constitutional  errors  "are  so  fundamental  that  they  infect  the  valid- 
ity of  the  underlying  judgment  itself,  or  the  integrity  of  the  process  by 
which  that  judgment  was  obtained"). 

16  In  Holloway  v.  Arkansas,  435  U.  S.  475,  491  (1978),  CHIEF  JUSTICE 
BURGER  explained  that  harmless  error  was  inappropriate  in  assessing  the 
constitutional  error  of  inappropriate  joint  representation  in  part  because 
such  an  inquiry  required  "unguided  speculation."     See  also  Note,  64  Cor- 
nell L.  Rev.,  supra  n.  13,  at  563-564  ("Holloway's  rationale  naturally 
extends  beyond  the  sixth  amendment:  it  suggests  that  a  rule  of  automatic 
reversal  should  apply  to  those  fundamental,  pervasive  errors  that  have 
uncertain  prejudicial  impact.  .  .  .  The  rule  of  automatic  reversal  should 
be  extended  to  all  errors,  whether  or  not  pervasive  or  constitutional,  that 
result  in  unascertainable  prejudice")  (footnotes  omitted). 


UNITED  STATES  v.  LANE  475 

438  Opinion  of  STEVENS,  J. 

category.  It  also  has  elements  of  the  second  and  third. 
Misjoinder  implicates  the  independent  value  of  individual 
responsibility  and  our  deep  abhorrence  of  the  notion  of  "guilt 
by  association."  Our  criminal  justice  system  has  expanded 
considerably  in  its  tolerance  of  multiple  joinders  and  massive 
conspiracy  trials.  The  rule  against  misjoinder  remains,  how- 
ever, as  an  ultimate  safeguard  of  our  cherished  principle  that 
one  is  tried  for  one's  own  deeds,  and  not  for  another's.17  The 
harmfulness  of  misjoinder  is  also  the  type  of  error  that  has 
consequences  that  are  difficult  to  measure  with  precision.18 
These  concerns  may  or  may  not  outweigh  the  societal  inter- 
ests that  motivate  the  Court  today,  but  they  are  surely 
strong  enough  to  demonstrate  that  the  draftsmen  of  the  Fed- 
eral Rules  acted  responsibly  when  they  adhered  to  the  time- 
honored  rule  of  the  McElroy  case.  The  misjoinder  Rule  that 
they  crafted  is  clear,  and  should  be  respected.19  Misjoinder 
affects  "substantial  rights,"  and  should  lead  to  reversal. 

17  Cf.  Krulewitch  v.  United  States,  336  U.  S.  440,  457-458  (1949)  (Jack- 
son, J.,  concurring)  ("Few  instruments  of  injustice  can  equal  that  of 
implied  or  presumed  or  constructive  crimes.  The  most  odious  of  all  op- 
pressions are  those  which  mask  as  justice"). 

18 See  Note,  6  Hofstra  L.  Rev.,  supra  n.  7,  at  563  (harmless  error  "is 
inaccurate  as  a  test  for  ascertaining  the  prejudice  resulting  from  mis- 
joinder  because  of  the  impossibility  of  determining  the  extent  of  that 
prejudice"). 

19 The  majority's  suggestion  that  two  Supreme  Court  opinions  have 
held  misjoinder  subject  to  the  harmless-error  rule  is  erroneous.  The  ma- 
jority writes:  "A  holding  directly  involving  misjoinder  again  indicated 
the  harmless-error  rule  should  apply."  Ante,  at  447.  The  decision  cited 
by  the  majority  for  this  proposition,  S  chaffer  v.  United  States,  362  U.  S. 
511  (1960),  explicitly  found  no  Rule  8  error  and  explicitly  disavowed  the 
type  of  "indication"  claimed  by  the  majority.  See  362  U.  S.,  at  517 
("The  harmless-error  rule,  which  was  the  central  issue  in  Kotteakos,  is  not 
even  reached  in  the  instant  case,  since  here  the  joinder  was  proper  under 
Rule  8(b)  and  no  error  was  shown").  Thus,  the  majority's  discussion  of 
Schaffer,  ante,  at  447—448,  is  completely  beside  the  point.  Indeed,  one 
year  after  Schaffer  was  decided,  it  was  read  to  support,  not  the  majority's 
conclusion,  but  the  viability  of  the  McElroy  rule.  See  Ward  v.  Umted 
States,  110  U.  S.  App.  D.  C.  136,  137,  289  F.  2d  877,  878  (1961)  (Burger, 


476  OCTOBER  TERM,  1985 

Opinion  of  STEVENS,  J.  474  U.  S. 

Ill 

Undertaking  a  harmless-error  analysis  is  perhaps  the  least 
useful  function  that  this  Court  can  perform,  cf.  United  States 
v.  Hasting,  461  U.  S.  499,  516-518  (1983)  (STEVENS,  J.,  con- 
curring in  judgment).  For  that  reason,  a  decision  that  a 
harmless-error  inquiry  is  required  should  lead  to  a  remand  to 
the  Court  of  Appeals,  which  is  in  a  far  better  position  than  we 
are  to  study  the  complete  trial  record  with  care.  The  major- 
ity's opinion  in  this  case  confirms  the  general  advisability  of 
that  approach. 

The  Court's  conclusion  that  Dennis  Lane  suffered  no  prej- 
udice is  based  on  three  cursory  observations.  First,  the 
Court  asserts,  with  no  explanation,  that  there  was  "over- 
whelming evidence"  of  his  guilt.  Ante,  at  450.  There  are  at 
least  two  problems  with  this  observation.  The  first  is  that 
the  majority  fails  to  appreciate  the  Kotteakos  recognition 
that  the  harmless-error  inquiry  is  entirely  distinct  from  a 
sufficiency-of-the-evidence  inquiry.20  The  second  is  that, 


J.)  (citing  Schaffer  and  McElroy  to  reject  Government  suggestion  that  de- 
fendant must  show  prejudice  to  obtain  reversal  after  misjoinder  of  defend- 
ants has  been  established). 

Similarly,  the  majority's  claim  that  Kotteakos  "suggested  that  the  harm- 
less-error rule  could  similarly  apply"  to  misjoinder,  ante,  at  447,  vastly 
overstates  the  case.  The  Court  noted  that  a  possible  joinder  violation 
gave  added  weight  to  its  conclusion  that  the  error  before  it  was  not  harm- 
less. 328  U.  S.,  at  774-775.  The  Court  observed  that  "§  269  [the  harm- 
less-error statute]  carries  the  threat  of  overriding  the  requirement  of  §  557 
for  substituting  separate  counts  in  the  place  of  separate  indictments,  un- 
less the  application  of  §  269  is  made  with  restraint.  The  two  sections  must 
be  construed  and  applied  so  as  to  bring  them  into  substantial  harmony,  not 
into  square  conflict."  Id.,  at  775.  This  expression  of  concern  about  the 
possible  effect  of  harmless  error  on  misjoinder,  however,  hardly  supports 
the  notion  that  Kotteakos  held  misjoinder  subject  to  harmless-error  analy- 
sis. And,  despite  the  majority's  view  that  its  holding  is  the  only  way  to 
bring  harmless  error  and  misjoinder  into  "substantial  harmony,"  ante,  at 
449,  a  conclusion  that  misjoinder  necessarily  affects  substantial  rights  pro- 
duces the  same  harmony. 

20  In  Kotteakos,  the  Court  accepted  the  defendants'  concession  that  the 
evidence  was  not  "insufficient,  if  considered  apart  from  the  alleged  errors 


UNITED  STATES  v.  LANE  477 

438  Opinion  of  STEVENS,  J. 

even  if  it  were  faithfully  applying  the  Kotteakos  distinction 
between  sufficiency  of  the  evidence  and  harmless  error,  the 
majority  utterly  fails  to  explain  its  statement  about  "over- 
whelming evidence."  A  reading  of  Kotteakos  reveals  that 
only  the  most  painstaking  and  thorough  review  of  an  entire 
trial  record  can  justify  a  conclusion  that  its  standard  has,  or 
has  not,  been  met.  The  opinion  the  Court  announces  today 
contains  no  indication  that  it  has  made  that  kind  of  analysis  of 
the  case  against  Dennis  Lane.21 

Second,  the  Court  notes  that  the  jury  was  properly 
instructed  to  evaluate  the  evidence  under  each  count  and 
against  each  defendant  separately.  Since  that  instruction 
should  be  given  routinely  in  every  case  in  which  there  is  a 
joinder  of  defendants  or  offenses,  it  surely  cannot  be  re- 
garded as  an  adequate  response  to  a  claim  that  a  misjoinder 
was  prejudicial.22 


relating  to  the  proof  and  the  instructions  at  the  trial."  328  U.  S.,  at  753. 
The  Court  went  on  to  emphasize  that  the  harmless-error  analysis  is  funda- 
mentally different  from  the  sufficiency  analysis.  "The  inquiry  cannot  he 
merely  whether  there  was  enough  to  support  the  result,  apart  from  the 
phase  affected  by  the  error.  It  is  rather,  even  so,  whether  the  error  itself 
had  substantial  influence.  If  so,  or  if  one  is  left  in  grave  doubt,  the  convic- 
tion cannot  stand."  Id.,  at  765.  Even  though  the  evidence  was  conced- 
edly  sufficient  without  the  errors,  the  Court  thus  found  the  errors  not 
harmless,  and  the  convictions  reversible.  The  majority  quotes  the  rele- 
vant passage  from  Kotteakos,  ante,  at  449,  but  fails  to  reflect  its  principle 
in  its  analysis. 

21  The  only  specific  evidence  even  mentioned  by  the  majority— the  testi- 
mony of  Heard  and  Lankford,  ante,  at  450-451,  n.  13— represents  accom- 
plice testimony.      Such  testimony  is,  of  course,  generally  recognized  as 
posing    special    evidentiary    problems.       See,    e.  g.,    1    J.    Weinstein    & 
M.   Berger,  Weinstein's  Evidence  11107  [04],  pp.  107-50  —  107-51  (1985); 
3  S.  Gard,  Jones  on  Evidence  §20:60,  pp.  736-737  (6th  ed.  1972). 

22  Indeed,  in  the  year  following  Kotteakos,  this  Court  made  clear  that 
proper  jury  instructions  might  not  alleviate  the  problems  inherent  in  joint 
trials: 

"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 


478  OCTOBER  TERM,  1985 

Opinion  of  STEVENS,  J.  474  U.  S. 

Finally,  the  Court  rather  hesitantly  suggests  that  the  evi- 
dence on  Count  1  "would  likely  have  been  admissible"  in  a 
joint  retrial  on  Counts  2-6,  ante,  at  450.  The  Court  thus 
assumes  that  a  joint  retrial  is  inevitable.  Of  course,  if  mis- 
joinder  is  found  only  as  to  Dennis  Lane,  as  I  suggest  below, 
then  the  majority's  point  collapses.  In  any  event,  nothing 
in  Kotteakos  or  in  our  harmless-error  precedents  suggests 
that  this  Court  should  find  an  error  harmless  because  of 
the  Court's  completely  untested  speculations  about  a  possible 
future  retrial.  Not  surprisingly,  Kotteakos  suggests  pre- 
cisely the  opposite.23 

A  determination  that  an  error  was  harmless  is  an  ex- 
tremely weighty  conclusion;  it  implicates  profound  notions  of 
fairness  and  justice.24  Even  if  the  majority  is  correct  that 
Rule  8  misjoinder  should  be  subject  to  harmless-error  analy- 
sis, I  am  convinced  that  the  majority's  summary  finding  of 
harmless  error  in  this  case  fails  to  give  the  issue  the  attention 
it  deserves.25 

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  defend- 
ants." Blumenthal  v.  United  States,  332  U.  S.  539,  559  (1947). 

28  "The  Government's  theory  seems  to  be,  in  ultimate  logical  reach,  that 
the  error  presented  by  the  variance  is  insubstantial  and  harmless,  if  the 
evidence  offered  specifically  and  properly  to  convict  each  defendant  would 
be  sufficient  to  sustain  his  conviction,  if  submitted  in  a  separate  trial.  For 
reasons  we  have  stated  and  in  view  of  the  authorities  cited,  this  is  not  and 
cannot  be  the  test  under  §269  [the  harmless  error  statute]."  328  U.  S., 
at  767. 

24  See  R.  Traynor,  The  Riddle  of  Harmless  Error  80  (1970)  ("[T]he  eval- 
uation of  an  error  as  harmless  or  prejudicial  is  one  of  the  most  significant 
tasks  of  an  appellate  court,  as  well  as  one  of  the  most  complex.     Each  eval- 
uation bears  upon  our  traditional  understanding  that  fair  trial  encompasses 
not  only  fair  notice  and  an  adequate  opportunity  to  be  heard  before  the 
appropriate  tribunal,  but  also  an  orderly  presentation  of  evidence  and  a 
rational  application  of  the  law  thereto"). 

25  A  more  searching  review  of  the  record  might  require  the  majority  to 
confront  certain  troublesome  aspects  of  this  erroneous  joinder.     The  ma- 
jority might  have  to  confront  the  fact  that  at  least  9  of  the  Government's  26 


UNITED  STATES  v.  LANE  479 

438  Opinion  of  STEVENS,  J. 

IV 

I  agree  with  the  Court's  conclusion  that  the  evidence  was 
sufficient  to  sustain  both  convictions  of  mail  fraud  and  there- 
fore join  Part  III  of  its  opinion.  I  also  agree  with  the  judg- 
ment insofar  as  it  upholds  the  conviction  of  James  Lane.  It 
is  perfectly  clear  that  the  violation  of  Rule  8(b)— the  rule 
prohibiting  the  improper  joinder  of  defendants— occasioned 
by  the  misjoinder  of  Count  1  did  not  affect  James  Lane  be- 
cause he  was  the  defendant  in  Count  1.  But  since  there  is  no 
claim  that  the  son,  Dennis  Lane,  took  any  part  in  Count  1 
(the  mail  fraud  regarding  the  1979  El  Toro  Restaurant  fire), 
I  believe  that  his  right  not  to  be  joined  as  a  defendant  in  his 
father's  trial  for  that  felony  was  a  "substantial  right"  that 
was  adversely  affected  by  the  misjoinder. 

In  my  view,  the  Court's  opinion  misconstrues  the  history 
and  purpose  of  Rule  8,  sows  further  confusion  in  the  Court's 

witnesses — more  than  one  third— addressed  the  El  Toro  fire,  the  offense 
for  which  Dennis  Lane  was  not  charged.  See  Testimony  of  Morris 
Loewenstern,  Tr.  33-43;  Testimony  of  Earl  Simpson,  id.,  at  44-50;  Testi- 
mony of  Cindy  Wright,  id.,  at  58-59;  Testimony  of  David  Lard,  id.,  at 
62-89,  96-103;  Testimony  of  Ben  Shaw,  id.,  at  103-112;  Testimony  of  Jack 
Stotts,  id.,  at  113-123;  Testimony  of  Wayne  Cox,  id.,  at  123-132;  Testi- 
mony of  Jay  Messenger,  id. ,  at  139-157;  and  Testimony  of  Sidney  Heard, 
id. ,  at  230-243.  It  might  have  to  confront  the  fact  that  two  of  the  defense 
witnesses  similarly  focused  on  the  El  Toro  fire.  See  Testimony  of  Janie 
Malone,  id.,  at  681-736;  Testimony  of  Jess  Maddox,  id.,  at  891-894.  It 
might  have  to  confront  the  fact  that,  in  their  closing  arguments,  both  the 
Government  and  the  defense  counsel  devoted  considerable  attention  to  the 
El  Toro  fire.  See  Government's  closing  argument,  id.,  at  989-993;  de- 
fense's closing  argument,  id  ,  at  1008-1014.  And  it  might,  finally,  have  to 
confront  the  fact  that  the  prosecutor's  closing  words  to  the  jury  were  that 
"each  of  these  charges  has  been  proved  against  J.  C.  Lane  and  Dennis 
Lane  beyond  a  reasonable  doubt."  Id.,  at  1051  (emphasis  added). 

This  is  not  to  say  that  I  have  studied  the  record  with  sufficient  care  to 
conclude  that,  if  misjoinder  is  subject  to  harmless-error  analysis,  the  error 
here  was  not  harmless.  Rather,  it  is  to  say  that  I  am  convinced  that  the 
majority's  opinion  gives  no  indication  of  having  wrestled  with  the  complex- 
ities of  the  1,000-page  trial  transcript  in  a  manner  that  would  permit  its 
confident  assertion  that  the  error  was  harmless. 


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WITTERS  v.  WASH.  DEPT.  OF  SERVICES  FOR  BLIND       481 

Syllabus 


WITTERS  v.  WASHINGTON  DEPARTMENT  OF 
SERVICES  FOR  THE  BLIND 

CERTIORARI  TO  THE  SUPREME  COURT  OF  WASHINGTON 

No.  84-1070.     Argued  November  6,  1985— Decided  January  27,  1986 

Petitioner,  suffering  from  a  progressive  eye  condition,  applied  to  the 
Washington  Commission  for  the  Blind  for  vocational  rehabilitation  as- 
sistance pursuant  to  a  Washington  statute.  At  the  time,  he  was  attend- 
ing a  private  Christian  college  seeking  to  become  a  pastor,  missionary, 
or  youth  director.  The  Commission  denied  aid  on  the  ground  that  it 
was  prohibited  by  the  State  Constitution,  and  this  ruling  was  upheld  on 
administrative  appeal.  Petitioner  then  brought  an  action  in  State 
Superior  Court,  which  affirmed  the  administrative  ruling  on  the  same 
state-law  grounds.  The  Washington  Supreme  Court  affirmed  but  based 
its  ruling  on  the  Establishment  Clause  of  the  First  Amendment,  holding 
that  the  provision  of  aid  to  petitioner  would  have  the  primary  effect  of 
advancing  religion  in  violation  of  that  Clause, 

Held:  On  the  record,  extension  of  aid  under  the  Washington  vocational 
rehabilitation  program  to  finance  petitioner's  training  at  the  Christian 
college  would  not  advance  religion  in  a  manner  inconsistent  with  the 
Establishment  Clause.  Pp.  485-490. 

(a)  As  far  as  the  record  shows,  assistance  provided  under  the  Wash- 
ington program  is  paid  directly  to  the  student,  who  then  transmits  it  to 
the  educational  institution  of  his  or  her  choice.     The  program  is  in  no 
way  skewed  towards   religion   and  creates  no  financial  incentive  for 
students  who  undertake  sectarian  education.     Pp.  487-488. 

(b)  Moreover,  nothing  in  the  record  indicates  that,  if  petitioner  suc- 
ceeds, any  significant  portion  of  the  aid  expended  under  the  Washington 
program  as  a  whole  will  end  up  flowing  to  religious  education.     P.  488. 

(c)  On  the  facts,  it  is  inappropriate  to  view  any  aid  ultimately  flowing 
to  the  Christian  college  as  resulting  from  a  state  action  sponsoring  or 
subsidizing  religion.      Nor  does  the  mere  circumstance  that  petitioner 
has  chosen  to  use  neutrally  available  state  aid  to  help  pay  for  his  re- 
ligious education  confer  any  message  of  state  endorsement  of  religion. 
Pp.  488-489. 

102  Wash.  2d  624,  689  P.  2d  53,  reversed  and  remanded. 

MARSHALL,  J.,  delivered  the  opinion  of  the  Court,  in  which  BURGER, 
C.  J.,  and  BRENNAN,  WHITE,  BLACKMUN,  POWELL,  REHNQUIST,  and 
STEVENS,  JJ.,  joined,  and  in  Parts  I  and  III  of  which  O'CONNOR,  J., 


482  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

joined.  WHITE,  J.,  filed  a  concurring  opinion,  post,  p.  490.  POWELL,  J., 
filed  a  concurring  opinion,  in  which  BURGER,  C.  J.,  and  REHNQUIST,  J., 
joined,  post,  p.  490.  O'CONNOR,  J. ,  filed  an  opinion  concurring  in  part  and 
concurring  in  the  judgment,  post,  p.  493. 

Michael  P.  Farris  argued  the  cause  and  filed  briefs  for 
petitioner. 

Timothy  R.  Malone,  Assistant  Attorney  General  of  Wash- 
ington, argued  the  cause  for  respondent.  With  him  on  the 
brief  were  Kenneth  O.  Eikenberry,  Attorney  General,  Philip 
H.  Austin,  Senior  Deputy  Attorney  General,  and  David  R. 
Minkel,  Assistant  Attorney  General.* 

JUSTICE  MARSHALL  delivered  the  opinion  of  the  Court. 

The  Washington  Supreme  Court  ruled  that  the  First 
Amendment  precludes  the  State  of  Washington  from  extend- 
ing assistance  under  a  state  vocational  rehabilitation  assist- 
ance program  to  a  blind  person  studying  at  a  Christian  col- 
lege and  seeking  to  become  a  pastor,  missionary,  or  youth 
director.  Finding  no  such  federal  constitutional  barrier  on 
the  record  presented  to  us,  we  reverse  and  remand. 


*Briefs  of  amid  curiae  urging  reversal  were  filed  for  the  United  States 
by  Acting  Solicitor  General  Fried,  Acting  Assistant  Attorney  General 
Willard,  Michael  C.  McConnell,  Anthony  J.  Steinmeyer,  and  Michael  Jay 
Singer;  for  the  American  Jewish  Committee  by  Samuel  Rabinove  and 
Richard  T.  Foltin;  for  the  American  Jewish  Congress  by  Marc  D.  Stern 
and  Ronald  A.  Krauss;  for  the  Christian  Legal  Society  et  aL  by  Samual 
Eric  Hans  Ericsson,  Kimberly  Wood  Colby,  and  Forest  D.  Montgomery; 
for  the  Rutherford  Institute  et  al.  by  Larry  L.  Grain,  Guy  O.  Farley,  Jr. , 
John  W.  Whitehead,  James  J.  Knicely,  Thomas  O.  Kotouc,  Wendell  R. 
Bird,  and  William  B.  Hollberg;  and  for  the  National  Legal  Christian 
Foundation. 

Briefs  of  amid  curiae  urging  affirmance  were  filed  for  the  American 
Civil  Liberties  Union  et  al.  by  Charles  B.  Wiggins,  Jack  D.  Novik,  Charles 
S.  Sims,  and  Burt  Neuborne;  for  Americans  United  for  Separation  of 
Church  and  State  by  Lee  Boothby  and  Walter  E.  Carson;  and  for  the 
Anti-Defamation  League  of  B'nai  B'rith  et  al.  by  Ruti  G.  Teitel,  Justin  J. 
Finger,  Jeffrey  P.  Sinensky,  and  Steven  M.  Freeman. 


WITTERS  v.  WASH.  DEPT.  OF  SERVICES  FOR  BLIND       483 
481  Opinion  of  the  Court 


Petitioner  Larry  Witters  applied  in  1979  to  the  Washington 
Commission  for  the  Blind  for  vocational  rehabilitation  serv- 
ices pursuant  to  Wash.  Rev.  Code  §  74.16.181  (1981). 1  That 
statute  authorized  the  Commission,  inter  alia,  to  "[provide 
for  special  education  and/or  training  in  the  professions,  busi- 
ness or  trades"  so  as  to  "assist  visually  handicapped  persons 
to  overcome  vocational  handicaps  and  to  obtain  the  maximum 
degree  of  self-support  and  self-care."  Ibid.  Petitioner, 
suffering  from  a  progressive  eye  condition,  was  eligible  for 
vocational  rehabilitation  assistance  under  the  terms  of  the 
statute.2  He  was  at  the  time  attending  Inland  Empire 
School  of  the  Bible,  a  private  Christian  college  in  Spokane, 
Washington,  and  studying  the  Bible,  ethics,  speech,  and 
church  administration  in  order  to  equip  himself  for  a  career 
as  a  pastor,  missionary,  or  youth  director.  App.  7-8. 

The  Commission  denied  petitioner  aid.  It  relied  on  an 
earlier  determination  embodied  in  a  Commission  policy 
statement  that  "[t]he  Washington  State  constitution  forbids 
the  use  of  public  funds  to  assist  an  individual  in  the  pursuit 
of  a  career  or  degree  in  theology  or  related  areas,"  id.,  at  4, 
and  on  its  conclusion  that  petitioner's  training  was  "religious 


'In  1983  the  Washington  Legislature  repealed  chapters  74.16  and  74.17 
of  the  Code,  enacting  in  their  place  a  new  chapter  74. 18.  The  statutory 
revision  abolished  the  Commission  for  the  Blind  and  created  respondent 
Department  of  Services  for  the  Blind.  See  1983  Wash.  Laws,  ch.  194,  §  3. 
We  shall  refer  to  respondent  for  purposes  of  this  opinion  as  "the 
Commission.'* 

2  Washington  Rev.  Code,  ch.  74.18,  see  n.  1,  supra,  establishes  a  re- 
quirement that  aid  recipients  be  persons  who  "(1)  have  no  vision  or  limited 
vision  which  constitutes  or  results  in  a  substantial  handicap  to  employment 
and  (2)  can  reasonably  be  expected  to  benefit  from  vocational  rehabilitation 
services  in  terms  of  employ  ability."  Wash.  Rev.  Code  §74.18.130  (1983) 
(effective  June  30,  1983).  It  has  not  been  established  whether  petitioner  is 
eligible  for  aid  under  the  new  standard.  That  determination,  however, 
will  have  no  effect  on  any  claim  asserted  by  petitioner  for  reimbursement 
of  aid  withheld  beginning  in  1979. 


484  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

instruction"  subject  to  that  ban.  Id. ,  at  1.  That  ruling  was 
affirmed  by  a  state  hearings  examiner,  who  held  that  the 
Commission  was  precluded  from  funding  petitioner's  training 
"in  light  of  the  State  Constitution's  prohibition  against  the 
state  directly  or  indirectly  supporting  a  religion."  App.  to 
Pet.  for  Cert.  F-6.  The  hearings  examiner  cited  Wash. 
Const.,  Art.  I,  §  11,  providing  in  part  that  "no  public  money 
or  property  shall  be  appropriated  for  or  applied  to  any  reli- 
gious worship,  exercise  or  instruction,  or  the  support  of  any 
religious  establishment,"  and  Wash.  Const.,  Art.  IX,  §4, 
providing  that  "[a]ll  schools  maintained  or  supported  wholly 
or  in  part  by  the  public  funds  shall  be  forever  free  from 
sectarian  control  or  influence."  App.  to  Pet.  for  Cert.  F-4. 
That  ruling,  in  turn,  was  upheld  on  internal  administrative 
appeal. 

Petitioner  then  instituted  an  action  in  State  Superior  Court 
for  review  of  the  administrative  decision;  the  court  affirmed 
on  the  same  state-law  grounds  cited  by  the  agency.  The 
State  Supreme  Court  affirmed  as  well.  Witters  v.  Commis- 
sion for  the  Blind,  102  Wash.  2d  624,  689  P.  2d  53  (1984). 
The  Supreme  Court,  however,  declined  to  ground  its  ruling 
on  the  Washington  Constitution.  Instead,  it  explicitly  re- 
served judgment  on  the  state  constitutional  issue  and  chose 
to  base  its  ruling  on  the  Establishment  Clause  of  the  Federal 
Constitution.  The  court  stated: 

"The  Supreme  Court  has  developed  a  3-part  test  for 
determining  the  constitutionality  of  state  aid  under  the 
establishment  clause  of  the  First  Amendment.  'First, 
the  statute  must  have  a  secular  legislative  purpose; 
second,  its  principal  or  primary  effect  must  be  one  that 
neither  advances  nor  inhibits  religion  .  .  .  ;  finally,  the 
statute  must  not  foster  "an  excessive  government  en- 
tanglement with  religion."7  Lemon  v.  Kurtzman,  [403 
U.  S.  602,  612-613  (1971)].  To  withstand  attack  under 
the  establishment  clause,  the  challenged  state  action 


WITTERS  v.  WASH.  DEPT.  OF  SERVICES  FOR  BLIND       485 
481  Opinion  of  the  Court 

must  satisfy  each  of  the  three  criteria."    Id.,  at  627-628, 
689  P.  2d,  at  55. 

The  Washington  court  had  no  difficulty  finding  the  "secular 
purpose"  prong  of  that  test  satisfied.  Applying  the  second 
prong,  however,  that  of  "principal  or  primary  effect,"  the 
court  held  that  "[t]he  provision  of  financial  assistance  by  the 
State  to  enable  someone  to  become  a  pastor,  missionary,  or 
church  youth  director  clearly  has  the  primary  effect  of  ad- 
vancing: religion."  Id.,  at  629,  689  P.  2d,  at  56.  The  court, 
therefore,  held  that  provision  of  aid  to  petitioner  would  con- 
travene the  Federal  Constitution.  In  light  of  that  ruling, 
the  court  saw  no  need  to  reach  the  "entanglement"  prong;  it 
stated  that  the  record  was  in  any  case  inadequate  for  such  an 
inquiry. 

We  granted  certiorari,  471  U.  S.  1002  (1985),  and  we  now 
reverse. 

II 

The  Establishment  Clause  of  the  First  Amendment  has 
consistently  presented  this  Court  with  difficult  questions  of 
interpretation  and  application.  We  acknowledged  in  Lemon 
v.  Kurtzman,  403  U.  S.  602  (1971),  that  "we  can  only  dimly 
perceive  the  lines  of  demarcation  in  this  extraordinarily 
sensitive  area  of  constitutional  law."  Id.,  at  612,  quoted  in 
Mueller  v.  Allen,  463  U.  S.  388,  393  (1983).  Nonetheless, 
the  Court's  opinions  in  this  area  have  at  least  clarified  "the 
broad  contours  of  our  inquiry,"  Committee  for  Public  Educa- 
tion and  Religious  Liberty  v.  Nyquist,  413  U.  S.  756,  761 
(1973),  and  are  sufficient  to  dispose  of  this  case. 

We  are  guided,  as  was  the  court  below,  by  the  three-part 
test  set  out  by  this  Court  in  Lemon  and  quoted  supra,  at 
484-485.  See  Grand  Rapids  School  District  v.  Ball,  473 
U.  S.  373,  382-383  (1985).  Our  analysis  relating  to  the  first 
prong  of  that  test  is  simple:  all  parties  concede  the  unmistak- 
ably secular  purpose  of  the  Washington  program.  That  pro- 
gram was  designed  to  promote  the  well-being  of  the  visually 
handicapped  through  the  provision  of  vocational  rehabilita- 


486  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

tion  services,  and  no  more  than  a  minuscule  amount  of  the  aid 
awarded  under  the  program  is  likely  to  flow  to  religious  edu- 
cation. No  party  suggests  that  the  State's  "actual  purpose" 
in  creating  the  program  was  to  endorse  religion,  Wallace  v. 
Jaffree,  472  U.  S.  38,  74  (1985),  quoting  Lynch  v.  Donnelly, 
465  U.  S.  668,  690  (1984)  (O'CONNOR,  J.,  concurring),  or 
that  the  secular  purpose  articulated  by  the  legislature 
is  merely  "sham."  Wallace,  supra,  at  64  (POWELL,  J., 
concurring). 

The  answer  to  the  question  posed  by  the  second  prong  of 
the  Lemon  test  is  more  difficult.  We  conclude,  however, 
that  extension  of  aid  to  petitioner  is  not  barred  on  that 
ground  either.3  It  is  well  settled  that  the  Establishment 
Clause  is  not  violated  every  time  money  previously  in  the 
possession  of  a  State  is  conveyed  to  a  religious  institution. 
For  example,  a  State  may  issue  a  paycheck  to  one  of  its  em- 

8  Respondent  offers  extensive  argument  before  this  Court  relating  to 
the  practical  workings  of  the  state  vocational  assistance  program.  Focus- 
ing on  the  asserted  practical  "nature  and  operation  of  that  program,"  Brief 
for  Respondent  6,  respondent  asserts  that  the  nature  of  the  program  in  fact 
leads  to  an  impermissible  "symbolic  union"  of  governmental  and  religious 
functions,  "requirpng]  government  choices  at  every  step  of  the  rehabilita- 
tion process"  and  "intertwining  .  .  .  governmental  decisionmaking  .  .  . 
with  decisionmaking  by  church  and  school  authorities."  Id.,  at  20.  Re- 
spondent contends  that  the  program  therefore  violates  the  second  and 
third  prongs  of  the  Lemon  test  in  a  way  that  "hands  off"  aid,  such  as  that 
provided  pursuant  to  the  GI  Bill,  does  not.  Id.,  at  11. 

This  argument,  however,  was  not  presented  to  the  state  courts,  and  ap- 
pears to  rest  in  large  part  on  facts  not  part  of  the  record  before  us.  Be- 
cause this  Court  must  affirm  or  reverse  upon  the  case  as  it  appears  in  the 
record,  Rvissell  v.  Southard,  12  How.  139,  159  (1851);  see  also  New  Haven 
Inclusion  Cases,  399  U.  S.  392,  450,  n.  66  (1970),  we  have  no  occasion  to 
consider  the  argument  here.  Nor  is  it  appropriate,  as  a  matter  of  good 
judicial  administration,  for  us  to  consider  claims  that  have  not  been  the 
subject  of  factual  development  in  earlier  proceedings.  On  remand,  it  will 
be  up  to  the  Washington  Supreme  Court  as  a  matter  of  state  procedural 
law  whether  and  to  what  extent  it  should  reopen  the  record  for  the  intro- 
duction of  evidence  on  the  issues  raised  for  the  first  time  in  this  Court. 


WITTERS  v.  WASH.  DEPT.  OF  SERVICES  FOR  BLIND       487 
481  Opinion  of  the  Court 

ployees,  who  may  then  donate  all  or  part  of  that  paycheck  to 
a  religious  institution,  all  without  constitutional  barrier;  and 
the  State  may  do  so  even  knowing  that  the  employee  so  in- 
tends to  dispose  of  his  salary.  It  is  equally  well  settled,  on 
the  other  hand,  that  the  State  may  not  grant  aid  to  a  religious 
school,  whether  cash  or  in  kind,  where  the  effect  of  the  aid  is 
"that  of  a  direct  subsidy  to  the  religious  school"  from  the 
State.  Grand  Rapids  School  District  v.  Ball,  473  U.  S.,  at 
394.  Aid  may  have  that  effect  even  though  it  takes  the  form 
of  aid  to  students  or  parents.  Ibid.;  see,  e.  g.,  Wolman  v. 
Walter,  433  U.  S.  229,  248-251  (1977);  Committee  for  Public 
Education  and  Religious  Liberty  v.  Nyquist,  supra;  Sloan 
v.  Lemon,  413  U.  S.  825  (1973).  The  question  presented  is 
whether,  on  the  facts  as  they  appear  in  the  record  before  us, 
extension  of  aid  to  petitioner  and  the  use  of  that  aid  by  peti- 
tioner to  support  his  religious  education  is  a  permissible 
transfer  similar  to  the  hypothetical  salary  donation  described 
above,  or  is  an  impermissible  "direct  subsidy." 

Certain  aspects  of  Washington's  program  are  central  to  our 
inquiry.  As  far  as  the  record  shows,  vocational  assistance 
provided  under  the  Washington  program  is  paid  directly  to 
the  student,  who  transmits  it  to  the  educational  institution 
of  his  or  her  choice.  Any  aid  provided  under  Washington's 
program  that  ultimately  flows  to  religious  institutions  does 
so  only  as  a  result  of  the  genuinely  independent  and  pri- 
vate choices  of  aid  recipients.4  Washington's  program  is 
"made  available  generally  without  regard  to  the  sectarian- 
nonsectarian,  or  public-nonpublic  nature  of  the  institution 
benefited,"  Committee  for  Public  Education  and  Religious 


4  This  is  not  the  case  described  in  Grand  Rapids  School  District  v.  Ball, 
473  U.  S.  373,  396  (1985)  ("Where  ...  no  meaningful  distinction  can  be 
made  between  aid  to  the  student  and  aid  to  the  school,  'the  concept  of  a 
loan  to  individuals  is  a  transparent  fiction* "),  quoting  Wolman  v.  Walter, 
433  U.  S.  229,  264  (1977)  (opinion  of  POWELL,  J.);  see  also  Wolman,  supra, 
at  250. 


488  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Liberty  v.  Nyquist,  413  U.  S.,  at  782-783,  n.  38,  and  is  in 
no  way  skewed  towards  religion.  It  is  not  one  of  "the  inge- 
nious plans  for  channeling  state  aid  to  sectarian  schools  that 
periodically  reach  this  Court,"  id.,  at  785.  It  creates  no 
financial  incentive  for  students  to  undertake  sectarian  educa- 
tion, see  id. ,  at  785-786.  It  does  not  tend  to  provide  greater 
or  broader  benefits  for  recipients  who  apply  their  aid  to  re- 
ligious education,  nor  are  the  full  benefits  of  the  program 
limited,  in  large  part  or  in  whole,  to  students  at  sectarian 
institutions.  On  the  contrary,  aid  recipients  have  full  oppor- 
tunity to  expend  vocational  rehabilitation  aid  on  wholly  secu- 
lar education,  and  as  a  practical  matter  have  rather  greater 
prospects  to  do  so.  Aid  recipients'  choices  are  made  among  a 
huge  variety  of  possible  careers,  of  which  only  a  small  hand- 
ful are  sectarian.  In  this  case,  the  fact  that  aid  goes  to  indi- 
viduals means  that  the  decision  to  support  religious  education 
is  made  by  the  individual,  not  by  the  State. 

Further,  and  importantly,  nothing  in  the  record  indicates 
that,  if  petitioner  succeeds,  any  significant  portion  of  the  aid 
expended  under  the  Washington  program  as  a  whole  will  end 
up  flowing  to  religious  education.  The  function  of  the  Wash- 
ington program  is  hardly  "to  provide  desired  financial  sup- 
port for  nonpublic,  sectarian  institutions."  Id.,  at  783;  see 
Sloan  v.  Lemon,  supra;  cf.  Meek  v.  Pittenger,  421  U.  S.  349, 
363-364  (1975).  The  program,  providing  vocational  assist- 
ance to  the  visually  handicapped,  does  not  seem  well  suited  to 
serve  as  the  vehicle  for  such  a  subsidy.  No  evidence  has 
been  presented  indicating  that  any  other  person  has  ever 
sought  to  finance  religious  education  or  activity  pursuant  to 
the  State's  program.  The  combination  of  these  factors,  we 
think,  makes  the  link  between  the  State  and  the  school  peti- 
tioner wishes  to  attend  a  highly  attenuated  one. 

On  the  facts  we  have  set  out,  it  does  not  seem  appropriate 
to  view  any  aid  ultimately  flowing  to  the  Inland  Empire 
School  of  the  Bible  as  resulting  from  a  state  action  sponsoring 
or  subsidizing  religion.  Nor  does  the  mere  circumstance 


WITTERS  v.  WASH.  DEPT.  OF  SERVICES  FOR  BLIND       489 
481  Opinion  of  the  Court 

that  petitioner  has  chosen  to  use  neutrally  available  state  aid 
to  help  pay  for  his  religious  education  confer  any  message  of 
state  endorsement  of  religion.  See  Lynch  v.  Donnelly,  465 
U.  S.,  at  688  (O'CONNOR,  J.,  concurring).  Thus,  while  amid 
supporting  respondent  are  correct  in  pointing  out  that  aid  to 
a  religious  institution  unrestricted  in  its  potential  uses,  if 
properly  attributable  to  the  State,  is  "clearly  prohibited 
under  the  Establishment  Clause,"  Grand  Rapids,  supra,  at 
395,  because  it  may  subsidize  the  religious  functions  of  that 
institution,  that  observation  is  not  apposite  to  this  case.  On 
the  facts  present  here,  we  think  the  Washington  program 
works  no  state  support  of  religion  prohibited  by  the  Estab- 
lishment Clause.6 

Ill 

We  therefore  reject  the  claim  that,  on  the  record  pre- 
sented, extension  of  aid  under  Washington's  vocational  re- 
habilitation program  to  finance  petitioner's  training  at  a 
Christian  college  to  become  a  pastor,  missionary,  or  youth 
director  would  advance  religion  in  a  manner  inconsistent  with 
the  Establishment  Clause  of  the  First  Amendment.  On  re- 
mand, the  state  court  is  of  course  free  to  consider  the  applica- 
bility of  the  "far  stricter"  dictates  of  the  Washington  State 
Constitution,  see  Witters  v.  Commission  for  the  Blind,  102 
Wash.  2d,  at  626,  689  P.  2d,  at  55.  It  may  also  choose  to 
reopen  the  factual  record  in  order  to  consider  the  arguments 
made  by  respondent  and  discussed  in  nn.  3  and  5,  supra. 
We  decline  petitioner's  invitation  to  leapfrog  consideration 
of  those  issues  by  holding  that  the  Free  Exercise  Clause 
requires  Washington  to  extend  vocational  rehabilitation  aid 
to  petitioner  regardless  of  what  the  State  Constitution  com- 
mands or  further  factual  development  reveals,  and  we  ex- 

5  We  decline  to  address  the  *  'entanglement"  issue  at  this  time.  As  a 
prudential  matter,  it  would  be  inappropriate  for  us  to  address  that  question 
without  the  benefit  of  a  decision  on  the  issue  below.  Further,  we  have  no 
reason  to  doubt  the  conclusion  of  the  Washington  Supreme  Court  that  that 
analysis  could  be  more  fruitfully  conducted  on  a  more  complete  record. 


490  OCTOBER  TERM,  1985 

POWELL,  J.,  concurring  474  U.  S. 

press  no  opinion  on  that  matter.      See  Rescue  Army  v. 
Municipal  Court,  331  U.  S.  549,  568  (1947). 

The  judgment  of  the  Washington  Supreme  Court  is  re- 
versed, and  the  case  is  remanded  for  further  proceedings  not 
inconsistent  with  this  opinion. 

It  is  so  ordered. 

JUSTICE  WHITE,  concurring. 

I  remain  convinced  that  the  Court's  decisions  finding  con- 
stitutional violations  where  a  State  provides  aid  to  private 
schools  or  their  students  misconstrue  the  Establishment 
Clause  and  disserve  the  public  interest.  Even  under  the 
cases  in  which  I  was  in  dissent,  however,  I  agree  with  the 
Court  that  the  Washington  Supreme  Court  erred  in  this  case. 
Hence,  I  join  the  Court's  opinion  and  judgment.  At  the 
same  time,  I  agree  with  most  of  JUSTICE  POWELL'S  concur- 
ring opinion  with  respect  to  the  relevance  of  Mueller  v. 
Allen,  463  U.S.  388  (1983),  to  this  case. 

JUSTICE  POWELL,  with  whom  THE  CHIEF  JUSTICE  and 
JUSTICE  REHNQUIST  join,  concurring. 

The  Court's  omission  of  Mueller  v.  Allen,  463  U.  S.  388 
(1983),  from  its  analysis  may  mislead  courts  and  litigants  by 
suggesting  that  Mueller  is  somehow  inapplicable  to  cases 
such  as  this  one.1  I  write  separately  to  emphasize  that 
Mueller  strongly  supports  the  result  we  reach  today. 

As  the  Court  states,  the  central  question  in  this  case  is 
whether  Washington's  provision  of  aid  to  handicapped  stu- 
dents has  the  "principal  or  primary  effect"  of  advancing  reli- 
gion. Lemon  v.  Kurtzman,  403  U.  S.  602,  612  (1971).  See 
also  Committee  for  Public  Education  and  Religious  Liberty 
v.  Nyquist,  413  U.  S.  756,  783-785,  n.  39  (1973).  Mueller 
makes  the  answer  clear:  state  programs  that  are  wholly 

1  The  Court  offers  no  explanation  for  omitting  Mueller  from  its  substan- 
tive discussion.  Indeed,  save  for  a  single  citation  on  a  phrase  with  no  sub- 
stantive import  whatever,  ante,  at  485,  Mueller  is  not  even  mentioned. 


WITTERS  u  WASH.  DEPT.  OF  SERVICES  FOR  BLIND       491 
481  POWELL,  J.,  concurring 

neutral  in  offering  educational  assistance  to  a  class  defined 
without  reference  to  religion  do  not  violate  the  second  part  of 
the  Lemon  v.  Kurtzman  test,2  because  any  aid  to  religion 
results  from  the  private  choices  of  individual  beneficiaries. 
Mueller,  463  U.  S.,  at  398-399.  Thus,  in  Mueller,  we  sus- 
tained a  tax  deduction  for  certain  educational  expenses,  even 
though  the  great  majority  of  beneficiaries  were  parents  of 
children  attending  sectarian  schools.  Id. ,  at  401.  We  noted 
the  State's  traditionally  broad  taxing  authority,  id.,  at  396, 
but  the  decision  rested  principally  on  two  other  factors. 
First,  the  deduction  was  equally  available  to  parents  of  public 
school  children  and  parents  of  children  attending  private 
schools.  Id.,  at  397;  see  Nyquist,  supra,  at  782-783,  n.  38. 
Second,  any  benefit  to  religion  resulted  from  the  "numerous 
private  choices  of  individual  parents  of  school-age  children." 
Mueller,  supra,  at  399. 

The  state  program  at  issue  here  provides  aid  to  handi- 
capped students  when  their  studies  are  likely  to  lead  to 
employment.  Aid  does  not  depend  on  whether  the  student 
wishes  to  attend  a  public  university  or  a  private  college,  nor 
does  it  turn  on  whether  the  student  seeks  training  for  a  re- 
ligious or  a  secular  career.  It  follows  that  under  Mueller 
the  State's  program  does  not  have  the  "principal  or  primary 
effect"  of  advancing  religion. a 


2Cf.  Sloan  v.  Lemon,  413  U.  S.  825,  832  (1973): 

"The  State  has  singled  out  a  class  of  its  citizens  for  a  special  economic 
benefit.  Whether  that  benefit  be  viewed  as  a  simple  tuition  subsidy,  as 
an  incentive  to  parents  to  send  their  children  to  sectarian  schools,  or 
as  a  reward  for  having  done  so,  at  bottom  its  intended  consequence  is  to 
preserve  and  support  religion-oriented  institutions  " 

3 Contrary  to  the  Court's  suggestion,  see  ante,  at  488,  this  conclusion 
does  not  depend  on  the  fact  that  petitioner  appears  to  be  the  only  handi- 
capped student  who  has  sought  to  use  his  assistance  to  pursue  religious 
training.  Over  90%  of  the  tax  benefits  in  Mueller  ultimately  flowed  to  re- 
ligious institutions  Compare  Mueller  v.  Allen,  463  U.  S  ,  at  401,  with 
id.,  at  405  (MARSHALL,  J.,  dissenting)  Nevertheless,  the  aid  was  thus 


492  OCTOBER  TERM,  1985 

POWELL,  J.,  concurring  474  U.  S. 

The  Washington  Supreme  Court  reached  a  different  con- 
clusion because  it  found  that  the  program  had  the  practical 
effect  of  aiding  religion  in  this  particular  case.      Witters  v. 
Commission  for  the  Blind,  102  Wash.  2d  624,  628-629,  689  P. 
2d  53,  56  (1984).     In  effect,  the  court  analyzed  the  case  as  if 
the  Washington  Legislature  had  passed  a  private  bill  that 
awarded  petitioner  free  tuition  to  pursue  religious  studies. 
Such  an  analysis  conflicts  with  both  common  sense  and  es- 
tablished precedent.4     Nowhere  in  Mueller  did  we  analyze 
the  effect  of  Minnesota's  tax  deduction  on  the  parents  who 
were  parties  to  the  case;  rather,  we  looked  to  the  nature  and 
consequences  of  the  program  viewed  as  a  whole.     Mueller, 
supra,  at  397-400.     The  same  is  true  of  our  evaluation  of  the 
tuition  reimbursement  programs  at  issue  in  Nyquist,  supra, 
at  780-789,  and  Sloan  v.  Lemon,  413  U.  S.   825,  830-832 
(1973).     See  also  Board  of  Education  v.  Allen,  392  U.  S.  236, 
243-244,  248  (1968);  Everson  v.  Board  of  Education,   330 
U.  S.  1,  16-17  (1947).     This  is  the  appropriate  perspective 
for  this  case  as  well.     Viewed  in  the  proper  light,  the  Wash- 
ington program  easily  satisfies   the    second   prong   of  the 
Lemon  test. 

I  agree,  for  the  reasons  stated  by  the  Court,  that  the 
State's  program  has  a  secular  purpose,  and  that  no  entangle- 
ment challenge  is  properly  raised  on  this  record.  I  therefore 
join  the  Court's  judgment.  On  the  understanding  that  noth- 
ing we  do  today  lessens  the  authority  of  our  decision  in 
Mueller,  I  join  the  Court's  opinion  as  well. 


channeled  by  individual  parents  and  not  by  the  State,  making  the  tax  de- 
duction permissible  under  the  "primary  effect"  test  of  Lemon. 

4  Under  the  Washington  Supreme  Court's  approach,  the  government 
could  never  provide  aid  of  any  sort  to  one  who  would  use  it  for  religious 
purposes,  no  matter  what  the  characteristics  of  the  challenged  program. 
This  Court  has  never  taken  such  an  approach.  See  Walz  v.  Tax  Comm'n, 
397  U.  S.  664  (1970);  Everson  v.  Board  of  Education,  330  U.  S.  1,  16 
(1947). 


WITTERS  v.  WASH.  DEPT.  OF  SERVICES  FOR  BLIND     493 
481  Opinion  of  O'CONNOR,  J. 

JUSTICE  O'CONNOR,  concurring  in  part  and  concurring  in 
the  judgment. 

I  join  Parts  I  and  III  of  the  Court's  opinion,  and  concur 
in  the  judgment.  I  also  agree  with  the  Court  that  both 
the  purpose  and  effect  of  Washington's  program  of  aid  to 
handicapped  students  are  secular.  As  JUSTICE  POWELL'S 
separate  opinion  persuasively  argues,  the  Court's  opinion  in 
Mueller  v.  Allen,  463  U.  S.  388  (1983),  makes  clear  that 
"state  programs  that  are  wholly  neutral  in  offering  educa- 
tional assistance  to  a  class  defined  without  reference  to 
religion  do  not  violate  the  second  part  of  the  Lemon  v.  Kurtz- 
man  test,  because  any  aid  to  religion  results  from  the  private 
decisions  of  beneficiaries."  Ante,  at  490-491  (POWELL,  J., 
concurring)  (footnote  omitted).  The  aid  to  religion  at  issue 
here  is  the  result  of  petitioner's  private  choice.  No  reason- 
able observer  is  likely  to  draw  from  the  facts  before  us  an 
inference  that  the  State  itself  is  endorsing  a  religious  practice 
or  belief.  See  Lynch  v.  Donnelly,  465  U.  S.  668,  690  (1984) 
(O'CONNOR,  J.,  concurring). 


494  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 

MIDLANTIC  NATIONAL  BANK  v.  NEW  JERSEY  DE- 
PARTMENT OF  ENVIRONMENTAL  PROTECTION 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  THIRD  CIRCUIT 

No.  84-801.     Argued  October  16,  1985— Decided  January  27,  1986* 

Quanta  Resources  Corp.  (Quanta)  processed  waste  oil  at  facilities  located 
in  New  York  and  New  Jersey.     The  New  Jersey  Department  of  Envi- 
ronmental Protection  (NJDEP)  discovered  that  Quanta  had  violated  a 
provision  of  the  operating  permit  for  the  New  Jersey  facility  by  accept- 
ing oil  contaminated  with  a  toxic  carcinogen.     During  negotiations  with 
NJDEP  for  the  cleanup  of  the  New  Jersey  site,  Quanta  filed  a  petition 
for  reorganization  under  Chapter  11  of  the  Bankruptcy  Code,  and  after 
NJDEP  had  issued  an  order  requiring  cleanup,  Quanta  converted  the 
action  to  a  liquidation  proceeding  under  Chapter  7.     An  investigation  of 
the  New  York  facility  then  revealed  that  Quanta  had  also  accepted  simi- 
larly contaminated  oil  at  that  site.     The  trustee  notified  the  creditors 
and  the  Bankruptcy  Court  that  he  intended  to  abandon  the  property 
under  §  554(a)  of  the  Bankruptcy  Code,  which  authorizes  a  trustee  to 
"abandon  any  property  of  the  estate  that  is  burdensome  to  the  estate  or 
that  is  of  inconsequential  value  to  the  estate."    The  City  and  the  State  of 
New  York  objected,  contending  that  abandonment  would  threaten  the 
public's  health  and  safety,  and  would  violate  state  and  federal  environ- 
mental law.     The  Bankruptcy  Court  approved  the  abandonment,  and, 
after  the  District  Court  affirmed,  an  appeal  was  taken  to  the  Court  of 
Appeals  for  the  Third  Circuit.     Meanwhile,  the  Bankruptcy  Court  also 
approved  the  trustee's  proposed  abandonment  of  the  New  Jersey  facility 
over  NJDEP's  objection,  and  NJDEP  took  a  direct  appeal  to  the  Court 
of  Appeals.      In  separate  judgments,  the  Court  of  Appeals  reversed, 
holding  that  the  Bankruptcy  Court  erred  in  permitting  abandonment. 
Held:  A  trustee  in  bankruptcy  may  not  abandon  property  in  contravention 
of  a  state  statute  or  regulation  that  is  reasonably  designed  to  protect  the 
public  health  or  safety  from  identified  hazards.     Congress  did  not  intend 
for  §  554(a)  to  pre-empt  all  state  and  local  laws.     A  bankruptcy  court 
does  not  have  the  power  to  authorize  an  abandonment  without  formulat- 


*Together  with  No.  84-805,  O'Neill,  Trustee  in  Bankruptcy  of  Quanta 
Resources  Corp.,  Debtor  v.  City  of  New  York  et  al.,  and  O'Neill,  Trustee  in 
Bankruptcy  of  Quanta  Resources  Corp.,  Debtor  v.  New  Jersey  Depart- 
ment of  Environmental  Protection,  also  on  certiorari  to  the  same  court. 


MIDLANTIC  NAT.  BANK  v.  N.  J.  DEFT.  OF  E.  P.  495 

494  Syllabus 

ing  conditions  that  will  adequately  protect  the  public's  health  and  safety. 
Pp.  500-507. 

(a)  Before  the  1978  revisions  of  the  Bankruptcy  Code,  which  codified 
in  §  554  the  judicially  developed  rule  of  abandonment,  the  trustee's  aban- 
donment power  had  been  limited  by  a  judicially  developed  doctrine 
intended  to  protect  legitimate  state  and  federal  interests.     In  codifying 
the  rule  of  abandonment,  Congress  also  presumably  included  the  corol- 
lary that  a  trustee  could  not  exercise  his  abandonment  power  in  violation 
of  certain  state  and  federal  laws.     Pp.  500-501. 

(b)  Neither  this  Court's  decisions  nor  Congress  has  granted  a  trustee 
in  bankruptcy  powers  that  would  lend  support  to  a  right  to  abandon 
property  in  contravention  of  state  or  local  laws  designed  to  protect  public 
health  or  safety.      Where  the  Bankruptcy  Code  has  conferred  other 
special  powers  upon  the  trustee  and  where  there  was  no  common-law 
limitation  on  such  powers,  Congress  has  expressly  provided  that  the 
trustee's  efforts  to  marshal  and  distribute  the  estate's  assets  must  yield 
to  governmental  interests  in  public  health  and  safety.     It  cannot  be  as- 
sumed that  Congress,  having  placed  such  limitations  upon  other  aspects 
of  trustees'  operations,  intended  to  discard  the  well-established  judicial 
restriction  on  the  abandonment  power.     Moreover,  28  U.  S.  C.  §  959(b), 
which  commands  the  trustee  to  "manage  and  operate  the  property  in  his 
possession  .  .  .  according  to  the  requirements  of  the  valid  laws  of  the 
State,"  provides  additional  evidence  that  Congress  did  not  intend  for  the 
Bankruptcy  Code  to  pre-empt  all  state  laws.     Pp.  502-505. 

(c)  Additional  support  for  restricting  the  abandonment  power  is  found 
in  repeated  congressional  emphasis,  in  other  statutes,  on  the  goal  of  pro- 
tecting the  environment  against  toxic  pollution.     Pp.  505-506. 

739  F.  2d  912  and  739  F.  2d  927,  affirmed. 

POWELL,  J.,  delivered  the  opinion  of  the  Court,  in  which  BRENNAN, 
MARSHALL,  BLACKMUN,  and  STEVENS,  JJ.,  joined.  REHNQUIST,  J.,  filed 
a  dissenting  opinion,  in  which  BURGER,  C.  J.,  and  WHITE  and  O'CONNOR, 
JJ.,  joined,  post,  p.  507. 

A.  Dennis  Terrell  argued  the  cause  for  petitioner  in 
No.  84-801.  With  him  on  the  brief  was  Kenneth  S.  Kasper. 
William  F1.  McEnroe  argued  the  cause  for  petitioner  in 
No.  84-805.  With  him  on  the  brief  was  Thomas  J.  O'Neill, 
pro  se. 

Mary  C.  Jacobson,  Deputy  Attorney  General  of  New  Jer- 
sey, argued  the  cause  for  respondent  in  No.  84-801.  With 
her  on  the  brief  were  Invin  I.  Kimmelman,  Attorney  Gen- 


496  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

eral,  James  J.  Ciancia,  Assistant  Attorney  General,  and 
Richard  F.  Engel  and  Ross  A.  Lewin,  Deputy  Attorneys 
General.  Robert  Hermann,  Solicitor  General  of  New  York, 
argued  the  cause  for  respondents  in  No.  84-805.  With  him 
on  the  brief  were  Robert  Abrams,  Attorney  General,  Nancy 
Stearns,  Norman  Spiegel,  and  Christopher  Keith  Hall, 
Assistant  Attorneys  General,  Frederick  A.  O.  Schwarz,  Jr., 
and  Leonard  Koerner.  * 

JUSTICE  POWELL  delivered  the  opinion  of  the  Court. 

These  petitions  for  certiorari,  arising  out  of  the  same  bank- 
ruptcy proceeding,  present  the  question  whether  §  554(a)  of 
the  Bankruptcy  Code,  11  U.  S.  C.  §554(a)/  authorizes  a 
trustee  in  bankruptcy  to  abandon  property  in  contravention 
of  state  laws  or  regulations  that  are  reasonably  designed  to 
protect  the  public's  health  or  safety. 

I 

Quanta  Resources  Corporation  (Quanta)  processed  waste 
oil  at  two  facilities,  one  in  Long  Island  City,  New  York,  and 

*Thomas  H.  Jackson,  pro  se,  filed  a  brief  as  amicus  curiae  urging 
reversal. 

Briefs  of  amici  curiae  urging  affirmance  were  filed  for  the  United  States 
by  Acting  Solicitor  General  Fried,  Assistant  Attorney  General  Habicht, 
Deputy  Solicitor  General  Claiborne,  Kathryn  A.  Oberly,  and  Dirk  D.  Snel; 
for  the  State  of  California  by  John  K.  Van  de  Kamp,  Attorney  Gen- 
eral, Theodora  Berger,  Assistant  Attorney  General,  and  Reed  Sato,  Lisa  S. 
Trankley,  and  Craig  C.  Thompson,  Deputy  Attorneys  General;  and  for  the 
State  of  West  Virginia  et  al.  by  Charlie  Brown,  Attorney  General  of  West 
Virginia,  Steven  Johnston  Knopp,  Assistant  Attorney  General,  James  D. 
Morris,  and  Howard  J.  Wein. 

Ronald  A.  Zumbrun  and  Robert  K.  Best  filed  a  brief  for  the  Pacific 
Legal  Foundation  as  amicus  curiae. 

1  Section  554(a)  reads: 

"After  notice  and  a  hearing,  the  trustee  may  abandon  any  property  of 
the  estate  that  is  burdensome  to  the  estate  or  that  is  of  inconsequential 
value  to  the  estate." 

Technical  amendments  in  the  Bankruptcy  Amendments  and  Federal 
Judgeship  Act  of  1984  added  the  words  "and  benefit"  after  "value"  in 
§554(a).  Pub.  L.  98-353,  Tit.  Ill,  §  468(a),  98  Stat.  380. 


MIDL ANTIC  NAT.  BANK  u  N.  J.  DEPT.  OF  E.  P.  497 

494  Opinion  of  the  Court 

the  other  in  Edgewater,  New  Jersey.  At  the  Edgewater 
facility,  Quanta  handled  the  oil  pursuant  to  a  temporary 
operating  permit  issued  by  the  New  Jersey  Department 
of  Environmental  Protection  (NJDEP),  respondent  in 
No.  84-801.  In  June  1981,  Midlantic  National  Bank,  peti- 
tioner in  No.  84-801,  provided  Quanta  with  a  $600,000  loan 
secured  by  Quanta's  inventory,  accounts  receivable,  and  cer- 
tain equipment.  The  same  month,  NJDEP  discovered  that 
Quanta  had  violated  a  specific  prohibition  in  its  operating 
permit  by  accepting  more  than  400,000  gallons  of  oil  contami- 
nated with  PCB,  a  highly  toxic  carcinogen.  NJDEP  ordered 
Quanta  to  cease  operations  at  Edgewater,  and  the  two  began 
negotiations  concerning  the  cleanup  of  the  Edgewater  site. 
But  on  October  6,  1981,  before  the  conclusion  of  negotiations, 
Quanta  filed  a  petition  for  reorganization  under  Chapter  11  of 
the  Bankruptcy  Code.  The  next  day,  NJDEP  issued  an 
administrative  order  requiring  Quanta  to  clean  up  the  site. 
Quanta's  financial  condition  remained  perilous,  however,  and 
the  following  month,  it  converted  the  action  to  a  liquidation 
proceeding  under  Chapter  7.  Thomas  J.  O'Neill,  petitioner 
in  No.  84—805,  was  appointed  trustee  in  bankruptcy,  and  sub- 
sequently oversaw  abandonment  of  both  facilities. 

After  Quanta  filed  for  bankruptcy,  an  investigation  of 
the  Long  Island  City  facility  revealed  that  Quanta  had  ac- 
cepted and  stored  there  over  70,000  gallons  of  toxic,  PCB- 
contaminated  oil  in  deteriorating  and  leaking  containers. 
Since  the  mortgages  on  that  facility's  real  property  exceeded 
the  property's  value,  the  estimated  cost  of  disposing  of  the 
waste  oil  plainly  rendered  the  property  a  net  burden  to  the 
estate.  After  trying  without  success  to  sell  the  Long  Island 
City  property  for  the  benefit  of  Quanta's  creditors,  the 
trustee  notified  the  creditors  and  the  Bankruptcy  Court  for 
the  District  of  New  Jersey  that  he  intended  to  abandon  the 
property  pursuant  to  §  554(a).  No  party  to  the  bankruptcy 
proceeding  disputed  the  trustee's  allegation  that  the  site  was 
"burdensome"  and  of  "inconsequential  value  to  the  estate" 
within  the  meaning  of  §  554. 


498  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

The  City  and  the  State  of  New  York  (collectively  New 
York),  respondents  in  No.  84-805,  nevertheless  objected, 
contending  that  abandonment  would  threaten  the  public's 
health  and  safety,  and  would  violate  state  and  federal  envi- 
ronmental law.  New  York  rested  its  objection  on  "public 
policy"  considerations  reflected  in  applicable  local  laws,  and 
on  the  requirement  of  28  U.  S.  C.  §  959(b)  that  a  trustee 
"manage  and  operate"  the  property  of  the  estate  "according 
to  the  requirements  of  the  valid  laws  of  the  State  in  which 
such  property  is  situated."  New  York  asked  the  Bank- 
ruptcy Court  to  order  that  the  assets  of  the  estate  be  used  to 
bring  the  facility  into  compliance  with  applicable  law.  After 
briefing  and  argument,  the  court  approved  the  abandonment, 
noting  that  "[t]he  City  and  State  are  in  a  better  position  in 
every  respect  than  either  the  Trustee  or  debtor's  creditors  to 
do  what  needs  to  be  done  to  protect  the  public  against  the 
dangers  posed  by  the  PCB-contaminated  facility."  The  Dis- 
trict Court  for  the  District  of  New  Jersey  affirmed,  and  New 
York  appealed  to  the  Court  of  Appeals  for  the  Third  Circuit. 

Upon  abandonment,  the  trustee  removed  the  24-hour 
guard  service  and  shut  down  the  fire-suppression  system.  It 
became  necessary  for  New  York  to  decontaminate  the  facil- 
ity, with  the  exception  of  the  polluted  subsoil,  at  a  cost  of 
about  $2.5  million.2 

On  April  23,  1983,  shortly  after  the  District  Court  had  ap- 
proved abandonment  of  the  New  York  site,  the  trustee  gave 
notice  of  his  intention  to  abandon  the  personal  property  at 
the  Edgewater  site,  consisting  principally  of  the  contami- 
nated oil.  The  Bankruptcy  Court  approved  the  abandon- 
ment on  May  20,  over  NJDEP's  objection  that  the  estate  had 


2  The  sole  issue  presented  by  these  petitions  is  whether  a  trustee  may 
abandon  property  under  §  564  in  contravention  of  local  laws  designed  to 
protect  the  public's  health  and  safety.  New  York  is  claiming  reimburse- 
ment for  its  expenditures  as  an  administrative  expense.  That  question, 
however,  like  the  question  of  the  ultimate  disposition  of  the  property,  is 
not  before  us. 


MIDL ANTIC  NAT.  BANK  v.  N.  J.  DEPT.  OF  E.  P.  499 

494  Opinion  of  the  Court 

sufficient  funds  to  protect  the  public  from  the  dangers  posed 
by  the  hazardous  waste.3 

Because  the  abandonments  of  the  New  Jersey  and  New 
York  facilities  presented  identical  issues,  the  parties  in  the 
New  Jersey  litigation  consented  to  NJDEP's  taking  a  direct 
appeal  from  the  Bankruptcy  Court  to  the  Court  of  Appeals 
pursuant  to  §  405(c)(l)(B)  of  the  Bankruptcy  Act  of  1978. 

A  divided  panel  of  the  Court  of  Appeals  for  the  Third  Cir- 
cuit reversed.  In  re  Quanta  Resources  Corp.,  739  F.  2d  912 
(1984);  In  re  Quanta  Resources  Corp.,  739  F.  2d  927  (1984). 
Although  the  court  found  little  guidance  in  the  legislative  his- 
tory of  §  554,  it  concluded  that  Congress  had  intended  to  cod- 
ify the  judge-made  abandonment  practice  developed  under 
the  previous  Bankruptcy  Act.  Under  that  law,  where  state 
law  or  general  equitable  principles  protected  certain  public 
interests,  those  interests  were  not  overridden  by  the  judge- 
made  abandonment  power.  The  court  also  found  evidence  in 
other  provisions  of  the  Bankruptcy  Code  that  Congress  did 
not  intend  to  pre-empt  all  state  regulation,  but  only  that 
grounded  on  policies  outweighed  by  the  relevant  federal  in- 


8  The  trustee  was  not  required  to  take  even  relatively  minor  steps  to 
reduce  imminent  danger,  such  as  security  fencing,  drainage  and  diking  re- 
pairs, sealing  deteriorating  tanks,  and  removing  explosive  agents.  More- 
over, the  trustee's  abandonment  at  both  sites  aggravated  already  existing 
dangers  by  halting  security  measures  that  prevented  public  entry,  vandal- 
ism, and  fire.  Joint  Appendix  in  No.  83-5142  (CAS),  pp.  11-12  (affidavit 
of  Richard  Docyk,  Deputy  Chief  Inspector  for  N.  Y.  City  Fire  Depart- 
ment); id.,  at  26  (transcript  of  proceedings  before  DeVito,  J,).  The 
470,000  gallons  of  highly  toxic  and  carcinogenic  waste  oil  in  unguarded,  de- 
teriorating containers  "present  risks  of  explosion,  fire,  contamination  of 
water  supplies,  destruction  of  natural  resources,  and  injury,  genetic  dam- 
age, or  death  through  personal  contact."  Brief  for  United  States  as  Ami- 
cus  Cunae  4,  23;  see  Joint  Appendix,  supra,  at  17  (70,000  gallons  at  New 
York  site);  Appendix  in  No.  83-5730  (CAS),  p.  A7  (400,000  gallons  at  New 
Jersey  site);  id.,  at  A46  (deteriorating  containers);  Joint  Appendix,  supra, 
at  11  (deteriorating  tanks);  id.,  at  26  (guard  service);  id  ,  at  12  (risk  of  fire); 
id.,  Sit  11  (contamination  of  adjacent  areas);  id.,  at  20  (health  effects  of 
exposure  to  PCBs  and  their  derivatives). 


500  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

terests.  Accordingly,  the  Court  of  Appeals  held  that  the 
Bankruptcy  Court  erred  in  permitting  abandonment,  and 
remanded  both  cases  for  further  proceedings.4 

We  granted  certiorari  and  consolidated  these  cases  to  de- 
termine whether  the  Court  of  Appeals  properly  construed 
§  554,  469  U.  S.  1207  (1985).  We  now  affirm. 

II 

Before  the  1978  revisions  of  the  Bankruptcy  Code,  the 
trustee's  abandonment  power  had  been  limited  by  a  judicially 
developed  doctrine  intended  to  protect  legitimate  state  or 
federal  interests.  This  was  made  clear  by  the  few  relevant 
cases.  In  Ottenheimer  v.  Whitaker,  198  F.  2d  289  (CA4 
1952),  the  Court  of  Appeals  concluded  that  a  bankruptcy 
trustee,  in  liquidating  the  estate  of  a  barge  company,  could 
not  abandon  several  barges  when  the  abandonment  would 
have  obstructed  a  navigable  passage  in  violation  of  federal 
law.  The  court  stated: 

"The  judge-made  [abandonment]  rule  must  give  way 
when  it  comes  into  conflict  with  a  statute  enacted  in 
order  to  ensure  the  safety  of  navigation;  for  we  are  not 
dealing  with  a  burden  imposed  upon  the  bankrupt  or  his 
property  by  contract,  but  a  duty  and  a  burden  imposed 
upon  an  owner  of  vessels  by  an  Act  of  Congress  in  the 
public  interest."  Id.,  at  290. 

In  In  re  Chicago  Rapid  Transit  Co.,  129  F.  2d  1  (CA7), 
cert,  denied  sub  nom.  Chicago  Junction  R.  Co.  v.  Sprague, 
317  U.  S.  683  (1942),  the  Court  of  Appeals  held  that  the 
trustee  of  a  debtor  transit  company  could  not  cease  its  opera- 

4  Judge  Gibbons  dissented,  arguing  that  §554  permits  abandonment 
without  any  exception  analogous  to  that  provided  to  the  automatic  stay. 
The  dissent  further  contended  that  the  majority's  interpretation  of  §  554 
raised  substantial  questions  under  the  Takings  Clause  by  potentially 
destroying  the  interest  of  secured  creditors,  see  United  States  v.  Security 
Industrial  Bank,  459  U.  S.  70  (1982),  and  that  the  majority  had  failed  to 
address  the  important  underlying  issue  of  the  priority  of  the  States'  claims 
for  reimbursement. 


MIDL ANTIC  NAT.  BANK  u  N.  J.  DEPT.  OF  E.  P.  501 

494  Opinion  of  the  Court 

tion  of  a  branch  railway  line  when  local  law  required  contin- 
ued operation.  While  the  court  did  not  forbid  the  trustee  to 
abandon  property  (i.  e.,  to  reject  an  unexpired  lease),  it  con- 
ditioned his  actions  to  ensure  compliance  with  state  law. 
Similarly,  in  In  re  Lewis  Jones,  Inc.,  1  BCD  277  (Bkrtcy  Ct. 
ED  Pa.  1974),  the  Bankruptcy  Court  invoked  its  equitable 
power  to  "safeguard  the  public  interest"  by  requiring  the 
debtor  public  utilities  to  seal  underground  steam  lines  before 
abandoning  them. 

Thus,  when  Congress  enacted  §554,  there  were  well- 
recognized  restrictions  on  a  trustee's  abandonment  power. 
In  codifying  the  judicially  developed  rule  of  abandonment, 
Congress  also  presumably  included  the  established  corollary 
that  a  trustee  could  not  exercise  his  abandonment  power  in 
violation  of  certain  state  and  federal  laws.  The  normal  rule 
of  statutory  construction  is  that  if  Congress  intends  for  legis- 
lation to  change  the  interpretation  of  a  judicially  created  con- 
cept, it  makes  that  intent  specific.  Edmonds  v.  Compagnie 
Generate  Transatlantique,  443  U.  S.  256,  266-267  (1979). 
The  Court  has  followed  this  rule  with  particular  care  in  con- 
struing the  scope  of  bankruptcy  codifications.  If  Congress 
wishes  to  grant  the  trustee  an  extraordinary  exemption  from 
nonbankruptcy  law,  "the  intention  would  be  clearly  ex- 
pressed, not  left  to  be  collected  or  inferred  from  disputable 
considerations  of  convenience  in  administering  the  estate 
of  the  bankrupt."  Swarts  v.  Hammer,  194  U.  S.  441,  444 
(1904);  see  Palmer  v.  Massachusetts,  308  U.  S.  79,  85  (1939) 
("If  this  old  and  familiar  power  of  the  states  [over  local  rail- 
road service]  was  withdrawn  when  Congress  gave  district 
courts  bankruptcy  powers  over  railroads,  we  ought  to  find 
language  fitting  for  so  drastic  a  change").  Although  these 
cases  do  not  define  for  us  the  exact  contours  of  the  trustee's 
abandonment  power,  they  do  make  clear  that  this  power  was 
subject  to  certain  restrictions  when  Congress  enacted 
§554(a). 


502  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Ill 

Neither  the  Court  nor  Congress  has  granted  a  trustee  in 
bankruptcy  powers  that  would  lend  support  to  a  right  to 
abandon  property  in  contravention  of  state  or  local  laws  de- 
signed to  protect  public  health  or  safety.  As  we  held  last 
Term  when  the  State  of  Ohio  sought  compensation  for  clean- 
ing the  toxic  waste  site  of  a  bankrupt  corporation: 

"Finally,  we  do  not  question  that  anyone  in  possession  of 
the  site— whether  it  is  [the  debtor]  or  another  in  the 
event  the  receivership  is  liquidated  and  the  trustee  aban- 
dons the  property,  or  a  vendee  from  the  receiver  or  the 
bankruptcy  trustee— must  comply  with  the  environmen- 
tal laws  of  the  State  of  Ohio.  Plainly,  that  person  or 
firm  may  not  maintain  a  nuisance,  pollute  the  waters  of 
the  State,  or  refuse  to  remove  the  source  of  such  condi- 
tions." Ohio  v.  Kovacs,  469  U.  S.  274,  285  (1985)  (em- 
phasis added). 

Congress  has  repeatedly  expressed  its  legislative  deter- 
mination that  the  trustee  is  not  to  have  carte  blanche  to  ig- 
nore nonbankruptcy  law.  Where  the  Bankruptcy  Code  has 
conferred  special  powers  upon  the  trustee  and  where  there 
was  no  common-law  limitation  on  that  power,  Congress  has 
expressly  provided  that  the  efforts  of  the  trustee  to  marshal 
and  distribute  the  assets  of  the  estate  must  yield  to  govern- 
mental interest  in  public  health  and  safety.  Infra,  at 
503—504.  One  cannot  assume  that  Congress,  having  placed 
these  limitations  upon  other  aspects  of  trustees'  operations, 
intended  to  discard  a  well-established  judicial  restriction  on 
the  abandonment  power.  As  we  held  nearly  two  years  ago 
in  the  context  of  the  National  Labor  Relations  Act,  "the 
debtor-in-possession  is  not  relieved  of  all  obligations  under 
the  [Act]  simply  by  filing  a  petition  for  bankruptcy."  NLRB 
v.  Bildisco  &  Bildisco,  465  U.  S.  513,  534  (1984). 


MIDL ANTIC  NAT.  BANK  v.  N.  J.  DEPT.  OF  E.  P.  503 

494  Opinion  of  the  Court 

The  automatic  stay  provision  of  the  Bankruptcy  Code, 
§362(a),5  has  been  described  as  "one  of  the  fundamental 
debtor  protections  provided  by  the  bankruptcy  laws." 
S.  Rep.  No.  95-989,  p.  54  (1978);  H.  R.  Rep.  No.  95-595, 
p.  340  (1977).  Despite  the  importance  of  §  362(a)  in  preserv- 
ing the  debtor's  estate,  Congress  has  enacted  several  catego- 
ries of  exceptions  to  the  stay  that  allow  the  Government  to 
commence  or  continue  legal  proceedings.  For  example, 
§362(b)(5)  permits  the  Government  to  enforce  "nonmone- 
tary"  judgments  against  a  debtor's  estate.  It  is  clear  from 
the  legislative  history  that  one  of  the  purposes  of  this  excep- 
tion is  to  protect  public  health  and  safety: 


5  Section  362(a)  provides: 

"(a)  Except  as  provided  in  subsection  (b)  of  this  section,  a  petition  filed 
under  section  301,  302,  or  303  of  this  title,  or  an  application  filed  under  sec- 
tion 5(a)(3)  of  the  Securities  Investor  Protection  Act  of  1970  (15  U.  S.  C. 
78eee(a)(3)),  operates  as  a  stay,  applicable  to  all  entities,  of — 

"(1)  the  commencement  or  continuation,  including  the  issuance  or  em- 
ployment of  process,  of  a  judicial,  administrative,  or  other  proceeding 
against  the  debtor  that  was  or  could  have  been  commenced  before  the  com- 
mencement of  the  case  under  this  title,  or  to  recover  a  claim  against  the 
debtor  that  arose  before  the  commencement  of  the  case  under  this  title; 

"(2)  the  enforcement,  against  the  debtor  or  against  property  of  the  es- 
tate, of  a  judgment  obtained  before  the  commencement  of  the  case  under 
this  title; 

"(3)  any  act  to  obtain  possession  of  property  of  the  estate  or  of  property 
from  the  estate; 

"(4)  any  act  to  create,  perfect,  or  enforce  any  lien  against  property  of  the 
estate; 

"(5)  any  act  to  create,  perfect,  or  enforce  against  property  of  the  debtor 
any  lien  to  the  extent  that  such  lien  secures  a  claim  that  arose  before  the 
commencement  of  the  case  under  this  title; 

"(6)  any  act  to  collect,  assess,  or  recover  a  claim  against  the  debtor  that 
arose  before  the  commencement  of  the  case  under  this  title; 

"(7)  the  setoff  of  any  debt  owing  to  the  debtor  that  arose  before  the  com- 
mencement of  the  case  under  this  title  against  any  claim  against  the  debtor; 
and 

"(8)  the  commencement  or  continuation  of  a  proceeding  before  the 
United  States  Tax  Court  concerning  the  debtor." 


504  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

"Thus,  where  a  governmental  unit  is  suing  a  debtor  to 
prevent  or  stop  violation  of  fraud,  environmental  protec- 
tion, consumer  protection,  safety,  or  similar  police  or 
regulatory  laws,  or  attempting  to  fix  damages  for  viola- 
tion of  such  a  law,  the  action  or  proceeding  is  not  stayed 
under  the  automatic  stay."  H.  R.  Rep.  No.  95-595, 
supra,  at  343  (emphasis  added);  S.  Rep.  No.  95-989, 
supra,  at  52  (emphasis  added). 

Petitioners  have  suggested  that  the  existence  of  an  express 
exception  to  the  automatic  stay  undermines  the  inference  of  a 
similar  exception  to  the  abandonment  power:  had  Congress 
sought  to  restrict  similarly  the  scope  of  §  554,  it  would  have 
enacted  similar  limiting  provisions.      This  argument,  how- 
ever, fails  to  acknowledge  the  differences  between  the  prede- 
cessors of  §§  554  and  362.     As  we  have  noted,  the  exceptions 
to  the  judicially  created  abandonment  power  were  firmly 
established.      But  in  enacting  §362  in  1978,  Congress  sig- 
nificantly broadened  the  scope  of  the  automatic  stay,  see  1 
W.  Norton,  Bankruptcy  Law  and  Practice  §20.03,  pp.  5-6 
(1981),  an  expansion  that  had  begun  only  five  years  earlier 
with  the  adoption  of  the  Bankruptcy  Rules  in  1973,  see  id., 
§20.02,  at  4-5.     Between  1973  and  1978,  some  courts  had 
stretched  the  expanded  automatic  stay  to  foreclose  States' 
efforts  to  enforce  their  antipollution  laws,6  and   Congress 
wanted  to  overrule  these  interpretations  in  its  1978  revision. 
See  H.  R.  Rep.  No.  95-595,  supra,  at  174-175.     In  the  face 
of  the  greatly  increased  scope  of  §362,  it  was  necessary  for 
Congress  to  limit  this  new  power  expressly. 


6 See,  e.  g.,  In  re  Hillsdale  Foundry  Co.,  1  BCD  195  (Bkrtcy  Ct.  WD 
Mich.  1974)  (action  by  Michigan  Attorney  General  to  enforce  State's  anti- 
pollution  laws  held  subject  to  automatic  stay).  The  House  Report  also  re- 
ferred to  an  unreported  case  from  Texas  where  a  stay  prevented  the  State 
of  Maine  from  closing  down  a  debtor's  plant  that  was  polluting  a  river  in 
violation  of  the  State's  environmental  protection  laws.  H.  R.  Rep. 
No.  95-595,  pp.  174-175  (1977). 


MIDLANTIC  NAT.  BANK  u  N.  J.  DEPT.  OP  E.  P.  505 

494  Opinion  of  the  Court 

Title  28  U.  S.  C.  §959(b)7  provides  additional  evidence 
that  Congress  did  not  intend  for  the  Bankruptcy  Code  to  pre- 
empt all  state  laws.  Section  959(b)  commands  the  trustee  to 
"manage  and  operate  the  property  in  his  possession  .  .  .  ac- 
cording to  the  requirements  of  the  valid  laws  of  the  State." 
Petitioners  have  contended  that  §959(b)  is  relevant  only 
when  the  trustee  is  actually  operating  the  business  of  the 
debtor,  and  not  when  he  is  liquidating  it.  Even  though 
§959(b)  does  not  directly  apply  to  an  abandonment  under 
§  554(a)  of  the  Bankruptcy  Code— and  therefore  does  not  de- 
limit the  precise  conditions  on  an  abandonment— the  section 
nevertheless  supports  our  conclusion  that  Congress  did  not 
intend  for  the  Bankruptcy  Code  to  pre-empt  all  state  laws 
that  otherwise  constrain  the  exercise  of  a  trustee's  powers. 

IV 

Although  the  reasons  elaborated  above  suffice  for  us  to 
conclude  that  Congress  did  not  intend  for  the  abandonment 
power  to  abrogate  certain  state  and  local  laws,  we  find  addi- 
tional support  for  restricting  that  power  in  repeated  congres- 
sional emphasis  on  its  "goal  of  protecting  the  environment 
against  toxic  pollution."  Chemical  Manufacturers  Assn., 
Inc.  v.  Natural  Resources  Defense  Council,  Inc.,  470  U.  S. 
116,  143  (1985).  Congress  has  enacted  a  Resource  Conserva- 
tion and  Recovery  Act,  42  U.  S.  C.  §§  6901-6987,  to  regulate 
the  treatment,  storage,  and  disposal  of  hazardous  wastes  by 
monitoring  wastes  from  their  creation  until  after  their  per- 
manent disposal.  That  Act  authorizes  the  United  States  to 
seek  judicial  or  administrative  restraint  of  activities  involv- 

7  Section  959(b)  provides: 

"Except  as  provided  in  section  1166  of  title  11,  a  trustee,  receiver  or 
manager  appointed  in  any  cause  pending  in  any  court  of  the  United  States, 
including  a  debtor  in  possession,  shall  manage  and  operate  the  property  in 
his  possession  as  such  trustee,  receiver  or  manager  according  to  the  re- 
quirements of  the  valid  laws  of  the  State  in  which  such  property  is  situ- 
ated, in  the  same  manner  that  the  owner  or  possessor  thereof  would  be 
bound  to  do  if  in  possession  thereof." 


506  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

ing  hazardous  wastes  that  "may  present  an  imminent  and 
substantial  endangerment  to  health  or  the  environment."  42 
U.  S.  C.  §6973;  see  also  S.  Rep.  No.  98-284,  p.  58  (1983). 
Congress  broadened  the  scope  of  the  statute  and  tightened 
the  regulatory  restraints  in  1984.8  In  the  Comprehensive 
Environmental  Response,  Compensation,  and  Liability  Act, 
as  amended  by  Pub.  L.  98-80,  §2(c)(2)(B),  Congress  estab- 
lished a  fund  to  finance  cleanup  of  some  sites  and  required 
certain  responsible  parties  to  reimburse  either  the  fund  or 
the  parties  who  paid  for  the  cleanup.  The  Act  also  empow- 
ers the  Federal  Government  to  secure  such  relief  as  may  be 
necessary  to  avert  "imminent  and  substantial  endangerment 
to  the  public  health  or  welfare  or  the  environment  because  of 
an  actual  or  threatened  release  of  a  hazardous  substance." 
42  U.  S.  C.  §  9606.  In  the  face  of  Congress'  undisputed  con- 
cern over  the  risks  of  the  improper  storage  and  disposal  of 
hazardous  and  toxic  substances,  we  are  unwilling  to  presume 
that  by  enactment  of  §  554(a),  Congress  implicitly  overturned 
longstanding  restrictions  on  the  common-law  abandonment 
power. 

V 

In  the  light  of  the  Bankruptcy  trustee's  restricted  pre-1978 
abandonment  power  and  the  limited  scope  of  other  Bank- 
ruptcy Code  provisions,  we  conclude  that  Congress  did  not 
intend  for  §  554(a)  to  pre-empt  all  state  and  local  laws.  The 


8  Congress  eliminated  the  small  generator  exception  and  subjected 
many  more  facilities  to  the  regulations.  Pub.  L.  98-616,  98  Stat.  3221, 
3248-3272  (codified  at  42  U.  S.  C.  §6921(d)  (1982  ed.,  Supp.  III)).  An- 
other provision  automatically  broadens  the  Act's  coverage  by  automatically 
assigning  a  hazardous  rating  to  substances  that  the  Environmental  Protec- 
tion Agency  does  not  classify  by  a  set  deadline.  98  Stat.  3227-3231  (codi- 
fied at  42  U.  S.  C.  §§6924(d),  (e),  (f)(3),  (g)(6)  (1982  ed.,  Supp.  III)). 
Amended  enforcement  provisions  allow  more  citizen  suits,  98  Stat. 
3271-3272  (codified  at  42  U.  S.  C.  § 6973  (1982  ed.,  Supp.  Ill)),  and  author- 
ize administrative  orders  or  suits  to  compel  "corrective  action"  after  a  leak 
has  occurred.  98  Stat.  3257-3258  (codified  at  42  U.  S.  C.  §  6928(h)  (1982 
ed.,  Supp.  III)). 


MIDLANTIC  NAT.  BANK  v.  N.  J.  DEPT.  OF  E.  P.  507 

494  REHNQUIST,  J.,  dissenting 

Bankruptcy  Court  does  not  have  the  power  to  authorize  an 
abandonment  without  formulating  conditions  that  will  ade- 
quately protect  the  public's  health  and  safety.  Accordingly, 
without  reaching  the  question  whether  certain  state  laws  im- 
posing conditions  on  abandonment  may  be  so  onerous  as  to 
interfere  with  the  bankruptcy  adjudication  itself,  we  hold 
that  a  trustee  may  not  abandon  property  in  contravention  of 
a  state  statute  or  regulation  that  is  reasonably  designed  to 
protect  the  public  health  or  safety  from  identified  hazards.9 
Accordingly,  we  affirm  the  judgments  of  the  Court  of  Ap- 
peals for  the  Third  Circuit. 

It  is  so  ordered. 

JUSTICE  REHNQUIST,  with  whom  THE  CHIEF  JUSTICE, 
JUSTICE  WHITE,  and  JUSTICE  O'CONNOR  join,  dissenting. 

The  Court  today  concludes  that  Congress  did  not  intend 
the  abandonment  provision  of  the  Bankruptcy  Code,  11 
U.  S.  C.  §554(a),  to  pre-empt  "certain  state  and  local  laws." 
In  something  of  a  surprise  ending,  the  Court  limits  the  class 
of  laws  that  can  prevent  an  otherwise  authorized  abandon- 
ment by  a  trustee  to  those  "reasonably  designed  to  protect 
the  public  health  or  safety  from  identified  hazards."  While 
this  limitation  reduces  somewhat  the  scope  of  my  disagree- 
ment with  the  result  reached,  it  renders  both  the  ratio 
decidendi  and  the  import  of  the  Court's  opinion  quite  unclear. 
More  important,  I  remain  unconvinced  by  the  Court's  argu- 
ments supporting  state  power  to  bar  abandonment.  The 
principal  and  only  independent  ground  offered— that  Con- 
gress codified  "well-recognized  restrictions  of  a  trustee's 
abandonment  power" — is  particularly  unpersuasive.  It  rests 
on  a  misreading  of  three  pre-Code  cases,  the  elevation  of  that 

9  This  exception  to  the  abandonment  power  vested  in  the  trustee  by 
§  554  is  a  narrow  one.  It  does  not  encompass  a  speculative  or  indetermi- 
nate future  violation  of  such  laws  that  may  stem  from  abandonment.  The 
abandonment  power  is  not  to  be  fettered  by  laws  or  regulations  not  reason- 
ably calculated  to  protect  the  public  health  or  safety  from  imminent  and 
identifiable  harm. 


508  OCTOBER  TERM,  1985 

REHNQUIST,  J. ,  dissenting  474  U.  S. 

misreading  into  a  "well-recognized"  exception  to  the  aban- 
donment power,  and  the  unsupported  assertion  that  Con- 
gress must  have  meant  to  codify  the  exception  (or  something 
like  it).     These  specific  shortcomings  in  the  Court's  analysis, 
which  are  addressed  in  greater  detail  below,  stem  at  least  in 
part  from  the  Court's  failure  to  discuss  even  in  passing  either 
the  nature  of  abandonment  or  its  role  in  federal  bankruptcy. 
Abandonment  is  "the  release  from  the  debtor's  estate  of 
property  previously  included  in  that  estate."     2  W.  Norton, 
Bankruptcy  Law  and  Practice  §  39.01  (1984),  citing  Brown  v. 
O'Keefe,  300  U.  S.  598,  602-603  (1937).     Prior  to  enactment 
of  the  Bankruptcy  Code  in  1978,  there  was  no  statutory 
provision  specifically  authorizing  abandonment  in  liquidation 
cases.     By  analogy  to  the  trustee's  statutory  power  to  reject 
executory  contracts,  courts  had  developed  a  rule  permitting 
the  trustee  to  abandon  property  that  was  worthless  or  not 
expected  to  sell  for  a  price  sufficiently  in  excess  of  encum- 
brances to  offset  the  costs  of  administration.     4  L.  King,  Col- 
lier on  Bankruptcy  11554.01  (15th  ed.  1985)  (hereinafter  Col- 
lier).1    This  judge-made  rule  served  the  overriding  purpose 
of  bankruptcy  liquidation:  the  expeditious  reduction  of  the 
debtor's  property  to  money,   for  equitable  distribution  to 
creditors,  Kothe  v.  R.  C.  Taylor  Trust,  280  U.  S.  224,  227 
(1930).     4  Collier  11554.01.     Forcing  the  trustee  to  adminis- 
ter burdensome  property  would   contradict   this   purpose, 
slowing  the  administration  of  the  estate   and  draining  its 
assets. 


1  Under  the  former  Bankruptcy  Act,  title  to  the  debtor's  property 
vested  in  the  trustee.  Abandonment  divested  the  trustee  of  title  and 
revested  it  in  the  debtor.  4  Collier  U554.02[2].  Under  the  Code,  the 
trustee  no  longer  takes  title  to  the  debtor's  property,  and  he  is  simply  di- 
vested of  control  over  the  property  by  the  abandonment.  Ibid.  Although 
§  554  does  not  specify  to  whom  the  property  is  abandoned,  the  legislative 
history  suggests  that  it  is  to  the  person  having  a  possessory  interest  in  the 
property.  S.  Rep.  No.  95-989,  p.  92  (1978);  Ohio  v.  Kovacs,  469  U.  S. 
274,  284-285,  n.  12  (1985). 


MIDLANTIC  NAT.  BANK  v.  N.  J.  DEPT.  OF  E.  P.  509 

494  REHNQUIST,  J.,  dissenting 

The  Bankruptcy  Code  expressly  incorporates  the  power  of 
abandonment  into  federal  bankruptcy  legislation  for  the  first 
time.  The  relevant  provision  bears  repeating: 

"(a)  After  notice  and  a  hearing,  the  trustee  may  aban- 
don any  property  of  the  estate  that  is  burdensome  to  the 
estate  or  that  is  of  inconsequential  value  to  the  estate." 
11  U.  S.  C.  §554(a)  (amended  1984). 

This  language,  absolute  in  its  terms,  suggests  that  a  trustee's 
power  to  abandon  is  limited  only  by  considerations  of  the 
property's  value  to  the  estate.  It  makes  no  mention  of  other 
factors  to  be  balanced  or  weighed  and  permits  no  easy  infer- 
ence that  Congress  was  concerned  about  state  environmental 
regulations.2  Indeed,  as  the  Court  notes,  when  Congress 
was  so  concerned  it  expressed  itself  clearly,  specifically  ex- 
empting some  environmental  injunctions  from  the  automatic 
stay  provisions  of  §362  of  the  Code,  11  U.  S.  C.  §§362(b)(4), 
(5)  (1982  ed.  and  Supp.  II).  See  Ohio  v.  Kovacs,  469  U.  S. 
274  (1985). 

Nor  does  the  scant  legislative  history  of  §  554  support  the 
Court's  interpretation.  Nowhere  does  that  legislative  his- 


2  Last  Term  in  Ohio  v.  Kovacs,  supra,  which  involved  the  discharge- 
ability  of  certain  environmental  injunctions  in  bankruptcy,  we  briefly  ad- 
dressed the  abandonment  of  hazardous  waste  sites: 

"After  notice  and  hearing,  the  trustee  many  abandon  any  property  of  the 
estate  that  is  burdensome  to  the  estate  or  that  is  of  inconsequential  value 
to  the  estate.  11  U.  S.  C.  §  554.  Such  abandonment  is  to  the  person  hav- 
ing the  possessory  interest  in  the  property.  S.  Rep.  No.  95—989,  p.  92 
(1978).  ...  If  the  site  at  issue  were  [the  debtor's]  property,  the  trustee 
would  shortly  determine  whether  it  was  of  value  to  the  estate.  If  the 
property  was  worth  more  than  the  costs  of  bringing  it  into  compliance  with 
state  law,  the  trustee  would  undoubtedly  sell  it  for  its  net  value,  and  the 
buyer  would  clean  up  the  property,  in  which  event  whatever  obligation 
[the  debtor]  might  have  had  to  clean  up  the  property  would  have  been  sat- 
isfied. If  the  property  were  worth  less  than  the  cost  of  cleanup,  the 
trustee  would  likely  abandon  it  to  its  prior  owner,  who  would  have  to 
comply  with  the  state  environmental  law  to  the  extent  of  his  or  its 
ability."  Id  ,  at  284-285,  n.  12. 


510  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

tory  suggest  that  Congress  intended  to  limit  the  trustee's 
authority  to  abandon  burdensome  property  where  abandon- 
ment might  be  opposed  by  those  charged  with  the  exercise  of 
state  police  or  regulatory  powers. 

The  Court  seeks  to  turn  the  seemingly  unqualified  lan- 
guage and  the  absence  of  helpful  legislative  history  to 
its  advantage.  Adopting  the  reasoning  of  the  Court  of 
Appeals,  the  Court  argues  that  in  light  of  Congress'  failure 
to  elaborate,  §554  must  have  been  intended  to  codify  prior 
"abandonment"  case  law,  and  that  under  prior  law  "a  trustee 
could  not  exercise  his  abandonment  power  in  violation  of 
certain  state  and  federal  laws,"  ante,  at  501.  I  disagree. 
We  have  previously  expressed  our  unwillingness  to  read  into 
unqualified  statutory  language  exceptions  or  limitations 
based  upon  legislative  history  unless  that  legislative  history 
demonstrates  with  extraordinary  clarity  that  this  was  indeed 
the  intent  of  Congress.  E.  g.,  Garcia  v.  United  States,  469 
U.  S.  70,  75  (1984).  I  think  that  upon  analysis  the  "legisla- 
tive history"  relied  upon  by  the  Court  here  falls  far  short  of 
this  standard. 

The  Court  relies  on  just  three  cases  for  its  claimed  "estab- 
lished corollary"  to  the  pre-Code  abandonment  power.  A 
close  reading  of  those  cases,  however,  reveals  that  none 
supports  the  rule  announced  today.  In  Ottenheimer  v. 
Whitaker,  198  F.  2d  289  (CA4  1952),  the  Court  of  Appeals 
held  that  a  trustee  could  not  abandon  worthless  barges  ob- 
structing traffic  in  Baltimore  Harbor  when  the  abandonment 
would  have  violated  federal  law.  The  Court  concluded  that 
the  "judge-made  rule  [of  abandonment]  must  give  way"  to 
"an  Act  of  Congress  in  the  public  interest."  Id.,  at  290. 
Ottenheimer  thus  depended  on  the  need  to  reconcile  a  conflict 
between  a  judicial  gloss  on  the  Bankruptcy  Act  and  the  com- 
mands of  another  federal  statute.  We  implicitly  confirmed 
the  validity  of  such  an  approach  two  Terms  ago  in  NLRB  v. 
Bildisco  &  Bildisco,  465  U.  S.  513,  523-524  (1984).  Here, 
by  contrast,  the  "conflict"  is  with  the  uncertain  commands  of 


MIDL ANTIC  NAT.  BANK  v.  N.  J.  DEPT.  OF  E.  P.  511 

494  REHNQUIST,  J. ,  dissenting 

state  laws  that  the  Court  declines  to  identify.3  In  addition, 
the  Court  of  Appeals  relied  heavily  on  the  fact  that  the  pre- 
Code  law  of  abandonment  was  judge-made,  which  in  turn 
raises  the  somewhat  Delphic  inquiry  as  to  whether  that  court 
would  have  decided  the  case  the  same  way  under  the  present 
Code. 

In  re  Lewis  Jones,  Inc.,  1  BCD  277  (Bkrtcy  Ct.  ED  Pa. 
1974),  was  a  Bankruptcy  Court  decision  concluding  that  the 
principle  of  Ottenheimer  did  not  apply  because  there  was  no 
conflicting  statute.  But  because  the  right  to  abandon  was 
based  on  judge-made  law,  the  court  nonetheless  found  itself 
free  to  protect  the  public  interest  by  requiring  a  trustee  seek- 
ing abandonment  to  first  spend  funds  of  the  estate  to  seal 
manholes  and  vents  in  an  underground  pipe  network.  While 
this  case  admittedly  comes  closer  to  supporting  the  Court's 
position  than  does  Ottenheimer,  it  too  turns  on  the  judge- 
made  nature  of  the  abandonment  power.  Moreover,  I  do  not 
believe  that  the  isolated  decision  of  a  single  Bankruptcy 
Court  rises  to  the  level  of  "established  law"  that  we  can  fairly 
assume  Congress  intended  to  incorporate.  See  Merrill 
Lynch,  Pierce,  Fenner  &  Smith,  Inc.  v.  Curran,  456  U.  S. 
353,  379-382  (1982). 

In  In  re  Chicago  Rapid  Transit  Co.,  129  F.  2d  1  (CA7), 
cert,  denied  sub  nom.  Chicago  Junction  R.  Co.  v.  Sprague, 
317  U.  S.  683  (1942),  the  District  Court  sitting  in  bankruptcy 
had  authorized  the  bankrupt  to  abandon  a  lease  of  a  rail  line, 
and  a  lessor  appealed.  The  bankrupt  did  not  appeal  the  Dis- 
trict Court's  imposition  of  conditions  on  the  abandonment; 
the  propriety  of  those  conditions  thus  was  not  before  the 

3  The  Court  finds  "additional  support"  for  its  restriction  of  the  abandon- 
ment power  in  recent  federal  statutes  concerned  with  protecting  the  envi- 
ronment. If  these  statutes  operated  to  bar  abandonment  here — some- 
thing neither  respondents  nor  the  Court  suggests— then  this  might  be  a 
different  case.  See  NLRB  v.  Bildisco  &  Bi^sco,  465  U.  S.  513  (1984). 
But  the  statutes  do  not  bar  abandonment,  and  the  majority's  reference 
to  their  obvious  concern  over  the  risks  of  storing  hazardous  substances  is 
little  more  than  a  makeweight. 


512  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

Court  of  Appeals,  which  affirmed  the  District  Court's  au- 
thorization of  abandonment.  So  while  there  may  be  dicta  in 
the  Court  of  Appeals'  opinion  that  would  support  some  limita- 
tion on  the  power  of  abandonment,  the  holding  of  the  case 
certainly  does  not.  In  short,  none  of  these  cases  supports 
the  Court's  view  that  §  554(a)  contains  an  implicit  exception 
for  "certain  state  and  local  laws." 

Even  assuming  these  cases  stand  for  the  proposition  as- 
cribed to  them  in  the  Court's  opinion,  that  opinion's  brief  dis- 
cussion of  the  cases,  ante,  at  500-501,  certainly  does  not  sup- 
port the  claim  that  they  reflect  an  "established  corollary"  to 
pre-Code    abandonment   law.       Generally    speaking,    three 
rather  isolated  cases  do  not  constitute  the  sort  of  settled  law 
that  we  can  fairly  assume  Congress  intended  to  codify  absent 
some  expression  of  its  intent  to  do  so.     Perhaps  recognizing 
this,  respondents  place  substantial  reliance  for  their  view 
that  the  exception  was  "well  settled"  on  the  following  state- 
ment in  the  (pre-Code)  14th  edition  of  Collier  on  Bankruptcy, 
accompanying  a  citation  to  Ottenheimer  and  Chicago  Rapid 
Transit:  "Recent  cases  illustrate,  however,  that  the  trustee 
in  the  exercise  of  the  power  to  abandon  is  subject  to  the 
application  of  general  regulations  of  a  police  nature."     4 A 
J.  Moore,  Collier  on  Bankruptcy  II 70. 42[2],  pp.  502-504  (14th 
ed.  1978);  see  also  In  re  Quanta  Resources  Corp.,  739  F.  2d 
912,  916  (1984)  (quoting  same  language  from  Collier).      Re- 
spondents further  observe  that  the  section  of  this  treatise 
addressing  abandonment  was  cited  in  a  note  to  an  early  pre- 
cursor of  §554,  §4-611  of  the  proposed  Bankruptcy  Act  of 
1973,  H.  R.  Doc.  No.  93-137,  Part  II,  p.  181,  reprinted  in 
A.  Resnick  &  E.  Wypyski,  2  Bankruptcy  Reform  Act  of  1978: 
A  Legislative  History,  Doc.  No.  22  (1979).     While  resource- 
ful, this  argument  is  wholly  unpersuasive. 

The  reference  to  Collier  is  not  part  of  the  Code's  "  'legisla- 
tive history'  in  any  meaningful  sense  of  the  term,"  Board  of 
Governors,  FRS  v.  Dimension  Financial  Corp.,  ante,  at  372. 
And  the  proposition  for  which  the  section  in  Collier  is  cited  is 


MIDLANTIC  NAT.  BANK  v.  N.  J.  DEPT.  OP  E.  P.  513 

494  REHNQUIST,  J.,  dissenting 

not  the  view  that  authority  for  abandonment  is  qualified  by 
state  police  power,  but  instead  the  much  less  remarkable 
proposition  that  "[t]he  concept  of  abandonment  is  well  recog- 
nized in  the  case  law.  See  4A  Collier  1T70.42[3]."  In  order 
to  divine  that  the  statutory  power  to  abandon  in  the  proposed 
Code  was  to  be  conditioned  on  compliance  with  state  police 
power  regulations,  therefore,  a  Senator  or  Congressman 
would  not  merely  have  had  to  look  at  the  legislative  history  of 
the  precursor  to  the  Code,  but  also  would  have  had  to  read 
the  several-page  treatise  section  cited  in  that  earlier  legisla- 
tive history. 

Neither  the  three  cases  cited  by  the  Court  nor  the  attenu- 
ated reference  to  the  since  superseded  version  of  Collier  sup- 
ports the  inference  that  Congress,  while  writing  §  554  in  un- 
qualified terms,  intended  to  incorporate  so  ill-defined  and 
uncertain  an  exception  to  the  abandonment  authority  of  the 
trustee.  After  suggesting  that  "if  Congress  intends  for  leg- 
islation to  change  the  interpretation  of  a  judicially  created 
concept"  it  should  do  so  expressly,  ante,  at  501,  the  Court 
concedes  that  these  cases  "do  not  define  for  us  the  exact  con- 
tours of  the  trustee's  abandonment  power,"  ibid.  The  Court 
never  identifies  the  source  from  which  it  draws  the  "exact 
contours"  of  the  rule  it  announces  today;  congressional  in- 
tent does  not  appear  to  be  a  likely  candidate.  Congress 
knew  how  to  draft  an  exception  covering  the  exercise  of 
"certain"  police  powers  when  it  wanted  to.  See  11  U.  S.  C. 
§§362(b)(4),  (5)  (1982  ed.  and  Supp.  II);  supra,  at  509.  It 
also  knew  how  to  draft  a  qualified  abandonment  provision. 
See  §  1170(a)(2)  (abandonment  of  railroad  lines  permitted 
only  if  "consistent  with  the  public  interest").  Congress'  fail- 
ure to  so  qualify  §  554  indicates  that  it  intended  the  relevant 
inquiry  at  an  abandonment  hearing  to  be  limited  to  whether 
the  property  is  burdensome  and  of  inconsequential  value  to 
the  estate. 

I  find  the  Court's  discussion  of  28  U.  S.  C.  §  959(b)  some- 
what difficult  to  fathom.  After  suggesting  that  §959(b) 


514  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

"provides  additional  evidence"  for  the  self-evident  proposi- 
tion "that  Congress  did  not  intend  for  the  Bankruptcy  Code 
to  pre-empt  all  state  laws,"  ante,  at  505,  the  Court  concedes 
that  the  provision  "does  not  directly  apply  to  an  abandon- 
ment under  §  554(a)  of  the  Bankruptcy  Code,"  ibid,  (emphasis 
added).  The  precise  nature  of  its  indirect  application,  how- 
ever, is  left  unclear.  Respondents  contend  that  §  959(b)  op- 
erates to  bar  abandonment  in  these  cases.  Assuming  that 
temporary  management  or  operation  of  a  facility  during  liqui- 
dation is  governed  by  §  959(b),  I  believe  that  a  trustee's  filing 
of  a  petition  to  abandon,  as  opposed  to  continued  operation  of 
a  site  pending  a  decision  to  abandon,  does  not  constitute 
"manage[ment]"  or  "operation]"  under  that  provision.  Not 
only  would  a  contrary  reading  strain  the  language  of  §  959(b), 
cf.  In  re  Adelphi  Hospital  Corp.,  579  F.  2d  726,  729,  n.  6 
(CA2  1978)  (per  curiam)  (in  pre-Code  liquidation  proceeding 
trustee  "is  in  no  sense  a  manager  of  an  institution's  opera- 
tions"), it  also  would  create  an  exception  to  the  abandonment 
power  without  a  shred  of  evidence  that  Congress  intended 
one.  As  one  commentator  has  noted,  §  554(a)  "is  among  the 
few  provisions  in  the  Bankruptcy  Code  that  do  not  contain 
explicit  exceptions."  Note,  85  Colum.  L.  Rev.  870,  883 
(1985).  I  would  not  read  28  U.  S.  C.  §959(b)  as  creating  an 
implicit  exception. 

Citing  SEC  v.  United  Realty  &  Improvement  Co.,  310 
U.  S.  434,  455  (1940),  respondents  argue  that  the  Bankruptcy 
Court's  equitable  powers  support  the  result  reached  below. 
I  disagree.  While  the  Bankruptcy  Court  is  a  court  of  equity, 
the  Bankruptcy  Code  "does  not  authorize  freewheeling 
consideration  of  every  conceivable  equity."  Bildisco  & 
Bildisco,  465  U.  S.,  at  527.  The  Bankruptcy  Court  may  not, 
in  the  exercise  of  its  equitable  powers,  enforce  its  view  of 
sound  public  policy  at  the  expense  of  the  interests  the  Code  is 
designed  to  protect.  In  these  cases,  it  is  undisputed  that  the 
properties  in  question  were  burdensome  and  of  inconsequen- 
tial value  to  the  estate.  Forcing  the  trustee  to  expend  es- 


MIDLANTIC  NAT.  BANK  u  N.  J.  DEPT.  OF  E.  P.  515 

494  REHNQUIST,  J.,  dissenting 

tate  assets  to  clean  up  the  sites  would  plainly  be  contrary  to 
the  purposes  of  the  Code. 

I  fully  appreciate  the  Court's  concern  that  abandonment 
may  "aggravat[e]  already  existing  dangers  by  halting  secu- 
rity measures  that  preven[t]  public  entry,  vandalism,  and 
fire."  Ante,  at  499,  n.  3.  But  in  almost  all  cases,  requiring 
the  trustee  to  notify  the  relevant  authorities  before  abandon- 
ing will  give  those  authorities  adequate  opportunity  to  step 
in  and  provide  needed  security.  As  the  Bankruptcy  Court 
noted  in  No.  84-805:  "The  City  and  State  are  in  a  better 
position  in  every  respect  than  either  the  Trustee  or  debtor's 
creditors  to  do  what  needs  to  be  done  to  protect  the  public 
against  the  dangers  posed  by  the  PCB-contaminated  facil- 
ity." App.  to  Pet.  for  Cert.  73a.  And  requiring  notice 
before  abandonment  in  appropriate  cases  is  perfectly  con- 
sistent with  the  Code.  It  advances  the  State's  interest 
in  protecting  the  public  health  and  safety,  and,  unlike 
the  rather  uncertain  exception  to  the  abandonment  power 
propounded  by  the  Court,  at  the  same  time  allows  for  the 
orderly  liquidation  and  distribution  of  the  estate's  assets. 
Here,  of  course,  the  trustee  provided  such  notice  and  the 
relevant  authorities  were  afforded  an  opportunity  to  take 
appropriate  preventative  and  remedial  measures. 

I  likewise  would  not  exclude  the  possibility  that  there  may 
be  a  far  narrower  condition  on  the  abandonment  power  than 
that  announced  by  the  Court  today,  such  as  where  abandon- 
ment by  the  trustee  itself  might  create  a  genuine  emergency 
that  the  trustee  would  be  uniquely  able  to  guard  against. 
The  United  States  in  its  brief  as  amicus  curiae  suggests,  for 
example,  that  there  are  limits  on  the  authority  of  a  trustee  to 
abandon  dynamite  sitting  on  a  furnace  in  the  basement  of  a 
schoolhouse.  Although  I  know  of  no  situations  in  which 
trustees  have  sought  to  abandon  dynamite  under  such  cir- 
cumstances, the  narrow  exception  that  I  would  reserve 
surely  would  embrace  that  situation. 


516  OCTOBER  TERM,  1985 

REHNQUIST,  J.,  dissenting  474  U.  S. 

What  the  Court  fails  to  appreciate  is  that  respondents'  in- 
terest in  these  cases  lies  not  just  in  protecting  public  health 
and  safety  but  also  in  protecting  the  public  fisc.  In 
No.  84-805,  before  undertaking  cleanup  efforts,  New  York 
unsuccessfully  sought  from  the  Bankruptcy  Court  a  first  lien 
on  the  Long  Island  City  property  to  the  extent  of  any  expen- 
ditures it  might  make  to  bring  the  site  into  compliance  with 
state  and  local  law.  New  York  did  not  appeal  the  court's  de- 
nial of  a  first  lien,  and  proceeded  to  clean  up  the  site  (except 
for  the  contaminated  subsoil).  It  now  presses  a  claim  for 
reimbursement,  maintaining  that  the  trustee  should  not  have 
been  allowed  to  abandon  the  site.  The  New  Jersey  Depart- 
ment of  Environmental  Protection,  in  No.  84-801,  appar- 
ently seeks  to  undo  the  abandonment  and  force  the  trustee  to 
expend  the  estate's  remaining  assets  cleaning  up  the  site, 
thereby  reducing  the  cleanup  costs  that  must  ultimately  be 
borne  by  the  State.4 

The  Court  states  that  the  "abandonment  power  is  not  to  be 
fettered  by  laws  or  regulations  not  reasonably  calculated  to 
protect  the  public  health  or  safety  from  imminent  and  identi- 
fiable harm."  Ante,  at  507,  n.  9.  Because  the  Court  de- 
clines to  identify  those  laws  that  its  deems  so  "reasonably 
calculated,"  I  can  only  speculate  about  its  view  of  respond- 
ents' claim  that  abandonment  can  be  conditioned  on  a  total 
cleanup.  One  might  assume,  however,  that  since  it  affirms 
the  judgments  below  the  Court  means  to  adopt  respondents' 
position.  The  Court  of  Appeals,  as  I  read  its  opinions  in 
these  cases,  apparently  would  require  the  trustee  to  expend 
all  of  Quanta's  available  assets  to  clean  up  the  sites.6  But 
barring  abandonment  and  forcing  a  cleanup  would  effectively 


4NJDEP  does  not  contend  that  the  estate,  including  any  assets  other- 
wise subject  to  Midlantic's  secured  claim,  contains  sufficient  assets  to  com- 
plete the  cleanup. 

5 1  would  think  that  this  command  qualifies,  in  the  words  of  the  Court, 
as  a  "conditio[n]  on  abandonment  ...  so  onerous  as  to  interfere  with  the 
bankruptcy  adjudication  itself,"  ante,  at  507. 


MIDLANTIC  NAT,  BANK  ti  N,  J,  DEFT.  OF  E,  P.      517 
494  REHNQUIST,  JM  dissenting 

place  respondents'  interest  in  protecting  the  public  fisc  ahead 
of  the  claims  of  other  creditors,  Congress  simply  did  not 
intend  that  §554  abandonment  hearings  would  be  used  to 
establish  the  priority  of  particular  claims  in  bankruptcy, 
While  States  retain  considerable  latitude  to  ensure  that 
priority  status  is  allotted  to  their  cleanup  claims,  see  Oto  v, 
to,  469  U,  S,,  at  285-286  (O'CONNOR,  J,,  concurring),  I 
believe  that  the  Court  errs  by  permitting  them  to  impose 
conditions  on  the  abandonment  power  that  Congress  never 
contemplated,  Accordingly,  in  each  of  these  cases  I  would 
reverse  the  judgment  of  the  Court  of  Appeals, 


518  OCTOBER  TERM,  1985 

Syllabus  474  U.  S. 


PARSONS  STEEL,  INC.,  ET  AL.  v.  FIRST  ALABAMA 
BANK  ET  AL. 

CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR 
THE  ELEVENTH  CIRCUIT 

No.  84-1616.     Argued  December  3,  1985 —Decided  January  27,  1986 

Petitioners  sued  respondents  in  an  Alabama  state  court,  alleging  that  re- 
spondent bank  had  fraudulently  induced  petitioner  individuals  to  permit 
a  third  person  to  take  control  of  a  subsidiary  of  petitioner  corporation 
and  eventually  to  obtain  complete  ownership.     Subsequently,  the  sub- 
sidiary was  adjudicated  an  involuntary  bankrupt.     Petitioners  then  sued 
the  bank  in  Federal  District  Court,  alleging  that  the  same  conduct  on  the 
bank's  part  that  was  the  subject  of  the  state  suit  violated  the  Bank  Hold- 
ing Company  Act  (BHCA)  amendments.     The  federal  action  went  to 
trial  before  the  state  action,  and  the  District  Court  granted  judgment 
n.o.v.  for  the  bank.     The  Court  of  Appeals  affirmed.     Thereafter,  re- 
spondents pleaded  a  res  judicata  defense  in  the  state  action  based  on  the 
federal  judgment,  but  the  Alabama  court  denied  the  defense.     After  the 
state  complaint  -was  amended  to  include  a  Uniform  Commercial  Code 
(UCC)  claim  that  the  bank's  foreclosure  sale  of  the  subsidiary's  assets 
was  commercially  unreasonable,  the  jury  returned  a  verdict  for  damages 
in  petitioners'  favor.     Respondents  then  returned  to  the  District  Court 
and  filed  an  injunctive  action  against  petitioners.     Holding  that  the  state 
fraud  and  UCC  claims  should  have  been  raised  in  the  federal  action  as 
pendent  to  the  BHCA  claim  and  accordingly  that  the  BHCA  judgment 
barred  the  state  claims  under  res  judicata,  the  District  Court  enjoined 
petitioners  from  further  prosecuting  the  state  action.     The  Court  of  Ap- 
peals affirmed,  holding  that  the  parties  to  the  BHCA  action  were  barred 
by  res  judicata  from  raising  the  state  claims  in  state  court  after  the  entry 
of  the  federal  judgment,  and  that  the  federal  injunction  was  proper 
under  the  "relitigation  exception"  to  the  Anti- Injunction  Act,  which  gen- 
erally prohibits  a  federal  court  from  enjoining  state  proceedings  but  ex- 
cepts  from  the  prohibition  the  issuance  of  an  injunction  by  a  federal  court 
"where  necessary  ...  to  protect  or  effectuate  its  judgments."      The 
court  did  not  consider  the  possible  preclusive  effect  under  Alabama  law 
of  the  state  court's  resolution  of  the  res  judicata  issue,  holding  instead 
that  the  "relitigation  exception"  to  the  Anti-Injunction  Act  worked  a  pro 
tanto  amendment  to  the  Full  Faith  and  Credit  Act,  which  requires  fed- 
eral courts  as  well  as  state  courts  to  give  state  judicial  proceedings  "the 


PARSONS  STEEL,  INC.  u  FIRST  ALABAMA  BANK  519 

518  Opinion  of  the  Court 

same  full  faith  and  credit  ...  as  they  have  by  law  or  usage  in  the  courts 
of  such  State  .  .  .  from  which  they  are  taken." 

Held:  The  Court  of  Appeals  erred  by  refusing  to  consider  the  possible  pre- 
clusive  effect  under  Alabama  law  of  the  state-court  judgment.  Even  if 
the  state  court  mistakenly  rejected  respondents'  res  judicata  claim,  this 
would  not  justify  the  highly  intrusive  remedy  of  a  federal-court  injunc- 
tion against  enforcement  of  the  state-court  judgment.  Rather,  the  Full 
Faith  and  Credit  Act  requires  that  the  federal  courts  give  the  state-court 
judgment,  and  particularly  the  state  court's  resolution  of  the  res  judicata 
issue,  the  same  preclusive  effect  it  would  have  in  another  court  of  the 
same  State.  Pp.  523-526. 

747  F.  2d  1367,  reversed  and  remanded. 

REHNQUIST,  J.,  delivered  the  opinion  for  a  unanimous  Court. 

Frank  M.  Wilson  argued  the  cause  for  petitioners.  With 
him  on  the  briefs  was  James  Jerry  Wood. 

M.  Roland  Nachman,  Jr. ,  argued  the  cause  for  respond- 
ents. With  him  on  the  brief  was  James  A.  By  ram,  Jr. 

JUSTICE  REHNQUIST  delivered  the  opinion  of  the  Court. 

The  Full  Faith  and  Credit  Act,  28  U.  S.  C.  §  1738,  requires 
federal  courts  as  well  as  state  courts  to  give  state  judicial 
proceedings  "the  same  full  faith  and  credit  ...  as  they  have 
by  law  or  usage  in  the  courts  of  such  State  .  .  .  from  which 
they  are  taken."  The  Anti- Injunction  Act,  28  U.  S.  C. 
§2283,  generally  prohibits  a  federal  court  from  granting  an 
injunction  to  stay  proceedings  in  a  state  court,  but  excepts 
from  that  prohibition  the  issuance  of  an  injunction  by  a  fed- 
eral court  "where  necessary  ...  to  protect  or  effectuate  its 
judgments."  In  the  present  case  the  Court  of  Appeals  for 
the  Eleventh  Circuit  held  that  the  quoted  exception  to  the 
latter  Act  worked  a  pro  tanto  amendment  to  the  former,  so 
that  a  federal  court  might  issue  an  injunction  against  state- 
court  proceedings  even  though  the  prevailing  party  in  the 
federal  suit  had  litigated  in  the  state  court  and  lost  on  the  res 
judicata  effect  of  the  federal  judgment.  We  granted  certio- 
rari  to  consider  this  question,  472  U.  S.  1026  (1985),  and  now 
reverse  the  judgment  of  the  Court  of  Appeals. 


520  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

Petitioners  Parsons  Steel,  Inc. ,  and  Jim  and  Melba  Parsons 
sued  respondents  First  Alabama  Bank  of  Montgomery  and 
Edward  Herbert,  a  bank  officer,  in  Alabama  state  court  in 
February  1979,  essentially  alleging  that  the  bank  had  fraudu- 
lently induced  the  Parsonses  to  permit  a  third  person  to  take 
control  of  a  subsidiary  of  Parsons  Steel  and  eventually  to  ob- 
tain complete  ownership  of  the  subsidiary.  The  subsidiary 
was  adjudicated  an  involuntary  bankrupt  in  April  1979,  and 
the  trustee  in  bankruptcy  was  added  as  a  party  plaintiff  in 
the  state  action.  In  May  1979  Parsons  Steel  and  the  Par- 
sonses sued  the  bank  in  the  United  States  District  Court  for 
the  District  of  Alabama,  alleging  that  the  same  conduct  on 
the  part  of  the  bank  that  was  the  subject  of  the  state-court 
suit  also  violated  the  Bank  Holding  Company  Act  (BHCA) 
amendments,  12  U.  S.  C.  §§  1971-1978.  The  trustee  in 
bankruptcy  chose  not  to  participate  in  the  federal  action. 

The  parties  conducted  joint  discovery  in  the  federal  and 
state  actions.     The  federal  action  proceeded  to  trial  on  the 
issue  of  liability  before  the  state  action  went  to  trial.     A  jury 
returned  a  verdict  in  favor  of  petitioners,  but  the  District 
Court  granted  judgment  n.o.v.  to  the  bank.     That  judgment 
was    affirmed    on    appeal.       Parsons    Steel,    Inc.    v.    First 
Alabama  Bank  of  Montgomery ,  679  F.  2d  242  (CA11  1982). 
After    the    federal    judgment    was    entered,     respondents 
pleaded  in  the  state  action  the  defenses  of  res  judicata  and 
collateral  estoppel  based  on  that  judgment.      The  Alabama 
court,  however,  ruled  that  res  judicata  did  not  bar  the  state 
action.     Almost  a  year  after  the  federal  judgment  was  en- 
tered, the  state  complaint  was  amended  to  include  a  Uniform 
Commercial  Code  (UCC)  claim  that  the  bank's  foreclosure 
sale  of  the  subsidiary's  assets  was  commercially  unreason- 
able.     A  jury  returned  a  general  verdict  in  favor  of  peti- 
tioners, awarding  a  total  of  four  million  and  one  dollars  in 
damages. 

Having  lost  in  state  court,  respondents  returned  to  the 
District  Court  that  had  previously  entered  judgment  in  the 


PARSONS  STEEL,  INC.  v.  FIRST  ALABAMA  BANK  521 

518  Opinion  of  the  Court 

bank's  favor  and  filed  the  present  injunctive  action  against 
petitioners,  the  plaintiffs  in  the  state  action.1  The  District 
Court  found  that  the  federal  BHCA  suit  and  the  state  action 
were  based  on  the  same  factual  allegations  and  claimed  sub- 
stantially the  same  damages.  The  court  held  that  the  state 
claims  should  have  been  raised  in  the  federal  action  as  pend- 
ent to  the  BHCA  claim  and  accordingly  that  the  BHCA  judg- 
ment barred  the  state  claims  under  res  judicata.  Determin- 
ing that  the  Alabama  judgment  in  effect  nullified  the  earlier 
federal-court  judgment  in  favor  of  the  bank,  the  District 
Court  enjoined  petitioners  from  further  prosecuting  the  state 
action. 

A  divided  panel  of  the  Court  of  Appeals  affirmed  in  rele- 
vant part,  holding  that  the  issuance  of  the  injunction  was  not 
"an  abuse  of  discretion"  by  the  District  Court.  747  F.  2d 
1367,  1381  (1980).  The  majority  first  agreed  with  the  Dis- 
trict Court  that  the  fraud  and  UCC  claims  presented  issues 
of  fact  and  law  that  could  have  been  and  should  have  been 
raised  in  the  same  action  as  the  BHCA  claim.  Thus  the 
parties  to  the  BHCA  action  and  their  privies,  including  the 
trustee  in  bankruptcy,  were  barred  by  res  judicata  from  rais- 
ing these  claims  in  state  court  after  the  entry  of  the  federal 
judgment. 

The  majority  then  held  that  the  injunction  was  proper 
under  the  so-called  "relitigation  exception"  to  the  Anti- 
Injunction  Act,  28  U.  S.  C.  §2283,  which  provides: 

"A  court  of  the  United  States  may  not  grant  an  injunc- 
tion to  stay  proceedings  in  a  State  court  except  as  ex- 
pressly authorized  by  Act  of  Congress,  or  where  neces- 
sary in  aid  of  its  jurisdiction,  or  to  protect  or  effectuate  its 
judgments"  (emphasis  added). 


1  Although  the  opinion  of  the  Court  of  Appeals  does  not  mention  it,  re- 
spondents apparently  also  filed  in  state  court  a  timely  post-trial  motion  for 
new  trial  or  judgment  n.o.v. 


522  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

In  reaching  this  holding,  the  majority  explicitly  declined  to 
consider  the  possible  preclusive  effect,  pursuant  to  the  Full 
Faith  and  Credit  Act,  28  U.  S.  C.  §  1738,2  of  the  state  court's 
determination  after  full  litigation  by  the  parties  that  the  ear- 
lier federal-court  judgment  did  not  bar  the  state  action.  Ac- 
cording to  the  majority,  "while  a  federal  court  is  generally 
bound  by  other  state  court  determinations,  the  relitigation 
exception  empowers  a  federal  court  to  be  the  final  adjudica- 
tor as  to  the  res  judicata  effects  of  its  prior  judgments  on  a 
subsequent  state  action."  747  F.  2d,  at  1376  (footnote 
omitted). 

Finally,  the  majority  ruled  that  respondents  had  not 
waived  their  right  to  an  injunction  by  waiting  until  after  the 
trial  in  the  state  action  was  completed.  The  majority  con- 
cluded that  the  state-court  pleadings  were  so  vague  that  it 
was  not  clear  until  after  trial  that  essentially  the  same  cause 
of  action  was  involved  as  the  BHC  A  claim  and  that  the  earlier 
federal  judgment  was  in  danger  of  being  nullified.  Accord- 
ing to  the  majority,  the  Anti-Injunction  Act  does  not  limit  the 
power  of  a  federal  court  to  protect  its  judgment  "to  specific 
points  in  time  in  state  court  trials  or  appellate  procedure." 
Id.,  at  1377.3 

The  dissenting  judge  rejected  "the  majority's  conclusion 
that  the  Anti-Injunction  Act .  .  .  implicitly  amended  the  Full 
Faith  and  Credit  Act,  28  U.  S.  C.  §  1738."  Id.,  at  1381  (Hill, 
J.,  dissenting).  He  agreed  with  the  majority  that  "section 
2283  allows  the  district  court  to  enter  an  injunction,  perhaps 
grounded  in  the  concept  of  res  judicata,  unless  the  state  court 

2  The  Full  Faith  and  Credit  Act  provides,  in  pertinent  part,  that  state 
judicial  proceedings  "shall  have  the  same  full  faith  and  credit  in  every  court 
within  the  United  States  ...  as  they  have  by  law  or  usage  in  the  courts  of 
such  State  .  .  .  from  which  they  are  taken." 

3  The  Court  of  Appeals  remanded  the  case  to  the  District  Court  for  a 
determination  whether  the  trustee  in  bankruptcy  should  be  allowed  to  liti- 
gate his  UCC  claim  in  state  court  because  the  trustee  was  not  a  party  to 
the  federal  suit  and  the  UCC  claim  might  have  been  based  on  facts  other 
than  those  that  formed  the  basis  for  the  federal  action. 


PARSONS  STEEL,  INC.  v.  FIRST  ALABAMA  BANK  523 

518  Opinion  of  the  Court 

has  already  addressed  the  res  judicata  issue  on  the  merits," 
but  would  have  held  in  cases  where  the  state  court  has  de- 
cided the  res  judicata  issue  that  "section  1738  requires  the 
federal  court  to  afford  full  faith  and  credit  to  the  state  court's 
resolution  of  the  issue."  Ibid. 

In  our  view,  the  majority  of  the  Court  of  Appeals  gave 
unwarrantedly  short  shrift  to  the  important  values  of  federal- 
ism and  comity  embodied  in  the  Full  Faith  and  Credit  Act. 
As  recently  as  last  March,  in  Marrese  v.  American  Academy 
of  Orthopaedic  Surgeons,  470  U.  S.  373  (1985),  we  reaffirmed 
our  holding  in  Migra  v.  Warren  City  School  Dist.  Bd.  of  Edu- 
cation, 465  U.  S.  75  (1984),  that  under  the  Full  Faith  and 
Credit  Act  a  federal  court  must  give  the  same  preclusive  ef- 
fect to  a  state-court  judgment  as  another  court  of  that  State 
would  give.  "It  has  long  been  established  that  §  1738 
does  not  allow  federal  courts  to  employ  their  own  rules  of 
res  judicata  in  determining  the  effect  of  state  judgments. 
Rather,  it  goes  beyond  the  common  law  and  commands  a  fed- 
eral court  to  accept  the  rules  chosen  by  the  State  from  which 
the  judgment  is  taken."  Kremer  v.  Chemical  Construction 
Corp.,  456  U.  S.  461,  481-482  (1982).  The  Full  Faith  and 
Credit  Act  thus  "allow[s]  the  States  to  determine,  subject  to 
the  requirements  of  the  statute  and  the  Due  Process  Clause, 
the  preclusive  effect  of  judgments  in  their  own  courts." 
Marrese,  supra,  at  380. 

In  the  instant  case,  however,  the  Court  of  Appeals  did  not 
consider  the  possible  preclusive  effect  under  Alabama  law  of 
the  state-court  judgment,  and  particularly  of  the  state  court's 
resolution  of  the  res  judicata  issue,  concluding  instead  that 
the  relitigation  exception  to  the  Anti-Injunction  Act  limits 
the  Full  Faith  and  Credit  Act.  We  do  not  agree.  "[A]n  ex- 
ception to  §  1738  will  not  be  recognized  unless  a  later  statute 
contains  an  express  or  implied  partial  repeal."  Kremer, 
supra,  at  468;  Allen  v.  McCurry,  449  U.  S.  90,  99  (1980). 
Here,  as  in  Kremer,  there  is  no  claim  of  an  express  repeal; 
rather,  the  Court  of  Appeals  found  an  implied  repeal.  "  'It 


524  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  U.  S. 

is,  of  course,  a  cardinal  principle  of  statutory  construction 
that  repeals  by  implication  are  not  favored,'  Radzanower  v. 
Touche  Ross  &  Co.,  426  U.  S.  148,  154  (1976);  United  States 
v.  United  Continental  Tuna  Corp.,  425  U.  S.  164,  168  (1976), 
and  whenever  possible,  statutes  should  be  read  consistently." 
456  U.  S.,  at  468.  We  believe  that  the  Anti-Injunction  Act 
and  the  Full  Faith  and  Credit  Act  can  be  construed  consist- 
ently, simply  by  limiting  the  relitigation  exception  of  the 
Anti-Injunction  Act  to  those  situations  in  which  the  state 
court  has  not  yet  ruled  on  the  merits  of  the  res  judicata  issue. 
Once  the  state  court  has  finally  rejected  a  claim  of  res 
judicata,  then  the  Full  Faith  and  Credit  Act  becomes  appli- 
cable and  federal  courts  must  turn  to  state  law  to  determine 
the  preclusive  effect  of  the  state  court's  decision. 

The  contrary  holding  of  the  Court  of  Appeals  apparently 
was  based  on  the  fact  that  Congress  in  1948  amended  the 
Anti-Injunction   Act  to   overrule   this   Court's   decision   in 
Toucey  v.   New   York  Life  Insurance  Co.,   314  U.  S.    118 
(1941),  in  favor  of  the  understanding  of  prior  law  expressed  in 
Justice  Reed's  dissenting  opinion.      See  Reviser's  Note  to 
1948  Revision  of  Anti-Injunction  Act,  28  U.  S.  C.,  p.  377. 
But  the  instant  case  is  a  far  cry  from  Toucey,  and  one  may 
fully  accept  the  logic  of  Justice  Reed's  dissent  without  con- 
cluding that  it  sanctions  the  result  reached  by  the  Court  of 
Appeals  here.      In  each  of  the  several  cases  involved  in 
Toucey,  the  prevailing  party  in  the  federal  action  sought  an 
injunction  against  relitigation  in  state  court  as  soon  as  the 
opposing  party  commenced  the  state  action,  and  before  there 
was  any  resolution  of  the  res  judicata  issue  by  the  state 
court.      In  the  instant  case,  on  the  other  hand,  respondents 
chose  to  fight  out  the  res  judicata  issue  in  state  court  first, 
and  only  after  losing  there  did  they  return  to  federal  court  for 
another  try. 

The  Court  of  Appeals  also  felt  that  the  District  Court's  in- 
junction would  discourage  inefficient  simultaneous  litigation 
in  state  and  federal  courts  on  the  same  issue— that  is,  the  res 


PARSONS  STEEL,  INC.  v.  FIRST  ALABAMA  BANK  525 

518  Opinion  of  the  Court 

judicata  effect  of  the  prior  federal  judgment.     But  this  is  one 

of  the  costs  of  our  dual  court  system: 

"In  short,  the  state  and  federal  courts  had  concurrent 
jurisdiction  in  this  case,  and  neither  court  was  free  to 
prevent  either  party  from  simultaneously  pursuing 
claims  in  both  courts."  Atlantic  Coast  Line  R.  Co.  v. 
Locomotive  Engineers,  398  U.  S.  281,  295  (1970). 

Indeed,  this  case  is  similar  to  Atlantic  Coast  Line,  in  which 
we  held  that  the  various  exceptions  to  the  Anti-Injunction 
Act  did  not  permit  a  federal  court  to  enjoin  state  proceedings 
in  circumstances  more  threatening  to  federal  jurisdiction 
than  the  circumstances  of  this  case.  There  we  stated  that 
the  phrase  "to  protect  or  effectuate  its  judgments"  author- 
ized a  federal  injunction  of  state  proceedings  only  "to  prevent 
a  state  court  from  so  interfering  with  a  federal  court's  con- 
sideration or  disposition  of  a  case  as  to  seriously  impair  the 
federal  court's  flexibility  and  authority  to  decide  that  case." 
Ibid. 

We  hold,  therefore,  that  the  Court  of  Appeals  erred  by 
refusing  to  consider  the  possible  preclusive  effect,  under  Ala- 
bama law,  of  the  state-court  judgment.  Even  if  the  state 
court  mistakenly  rejected  respondents'  claim  of  res  judicata, 
this  does  not  justify  the  highly  intrusive  remedy  of  a  federal- 
court  injunction  against  the  enforcement  of  the  state-court 
judgment.  Rather,  the  Full  Faith  and  Credit  Act  requires 
that  federal  courts  give  the  state-court  judgment,  and  par- 
ticularly the  state  court's  resolution  of  the  res  judicata  issue, 
the  same  preclusive  effect  it  would  have  had  in  another  court 
of  the  same  State.  Challenges  to  the  correctness  of  a  state 
court's  determination  as  to  the  conclusive  effect  of  a  federal 
judgment  must  be  pursued  by  way  of  appeal  through  the 
state-court  system  and  certiorari  from  this  Court.  See 
Angel  v.  Bullington,  330  U.  S.  183  (1947). 

We  think  the  District  Court  is  best  situated  to  determine 
and  apply  Alabama  preclusion  law  in  the  first  instance.  See 
Marrese  v.  American  Academy  of  Orthopaedic  Surgeons, 


526  OCTOBER  TERM,  1985 

Opinion  of  the  Court  474  TJ.  S. 

supra,  at  386-387;  Migra  v.  Warren  City  School  Dist.  Ed.  of 
Education,  465  U.  S.,  at  87.  Should  the  District  Court  con- 
clude that  the  state-court  judgment  is  not  entitled  to  preclu- 
sive  effect  under  Alabama  law  and  the  Full  Faith  and  Credit 
Act,  it  would  then  be  in  the  best  position  to  decide  the  propri- 
ety of  a  federal-court  injunction  under  the  general  principles 
of  equity,  comity,  and  federalism  discussed  in  Mitchum  v. 
Foster,  407  U.  S.  225,  243  (1972). 

The  judgment  of  the  Court  of  Appeals  is  reversed,  and  the 
case  is  remanded  for  further  proceedings  consistent  with  this 
opinion.4 

It  is  so  ordered. 


4  As  an  alternative  basis  for  reversing  the  decision  of  the  Court  of 
Appeals,  petitioners  contend  that  the  relitigation  exception  to  the  Anti- 
Injunction  Act  was  never  intended  by  Congress  to  allow  the  issuance  of  a 
federal-court  injunction  in  situations  where  the  later  state  action  involves 
claims  that  could  have  been  litigated,  but  were  not  actually  litigated,  in  the 
prior  federal  action.  Petitioners  also  ask  us  to  review  the  Court  of  Ap- 
peals' holding  that  the  trustee  in  bankruptcy,  who  was  not  a  party  to  the 
first  federal  action,  was  nevertheless  bound  under  res  judicata  by  the  judg- 
ment of  the  District  Court  in  that  action.  Because  of  our  resolution  of  the 
primary  issue  raised  by  petitioners,  we  do  not  address  these  additional 
arguments. 


The  next  page  is  purposely  numbered  DDL  Hie  numbers  between 
and  801  were  intentionally  omitted,  in  order  to  make  it  possible  to  publ 
the  orders  with  ymm\  page  numbers,  thus  making  the  official  cita- 
tions available  upon  publication  of  the  preliminary  prints  of  the  United 


ORDERS  FROM  OCTOBER  7,  1985,  THROUGH 
FEBRUARY  21,  1986 


OCTOBEK  7,  1985 

Dismissal  Under  Rule  53 

No.  85-561.  JONES  ET  AL.  v.  LIGHTNER,  DBA  LIGHTNER  AUTO 
SALES.  C.  A.  7th  Cir,  Certiorari  dismissed  under  this  Court's 
Rule  53.  Reported  below:  752  F.  2d  1251. 

Affirmed  on  Appeal 

No.  84-1794.  GERACE,  COMMISSIONER,  NEW  YORK  DEPART- 
MENT OF  AGRICULTURE  AND  MARKETS,  ET  AL.  v.  GROCERY  MAN- 
UFACTURERS OF  AMERICA,  INC.,  ET  AL.  Appeal  from  C.  A.  2d 
Cir.  Motion  of  Federation  of  Homemakers,  Inc.,  for  leave  to  file 
a  brief  as  amicus  curiae  granted.  Judgment  affirmed.  JUSTICE 
REHNQUIST  and  JUSTICE  O'CONNOR  would  note  probable  jurisdic- 
tion and  set  case  for  oral  argument.  Reported  below:  755  F.  2d 
993. 

Appeals  Dismissed 

No.  84-1791.  CORPUS  CHRISTI  PEOPLE'S  BAPTIST  CHURCH, 
INC.,  ET  AL.  v.  TEXAS.  Appeal  from  Sup.  Ct.  Tex.  dismissed  for 
want  of  substantial  federal  question.  Reported  below:  683  S.  W. 
2d  692. 

No.  84-1804.  WALKER  v.  CITY  OF  WARREN.  Appeal  from  Ct. 
App.  Mich,  dismissed  for  want  of  substantial  federal  question. 
Reported  below:  135  Mich.  App.  267,  354  N.  W.  2d  312. 

No.  84-1841.  METHODIST  HOSPITAL  OF  BROOKLYN  ET  AL.  v. 
STATE  INSURANCE  FUND  ET  AL.  Appeal  from  Ct.  App.  N.  Y. 
dismissed  for  want  of  substantial  federal  question.  Reported 
below:  64  N.  Y.  2d  365,  476  N.  E.  2d  304. 

No.  84-1882.  ST.  JOSEPH'S  HILL  INFIRMARY,  INC.  v.  PACIFIC 
CARE  CENTER,  INC.  Appeal  from  Ct.  App.  Mo.,  Eastern  Dist., 
dismissed  for  want  of  substantial  federal  question.  Reported 
below:  682  S.  W.  2d  821. 

801 


802  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-1901.  WHALEN  u  DEAN  STEEL  ERECTION  Co.,  INC. 
Appeal  from  Sup.  Ct.  Va.  dismissed  for  want  of  substantial  fed- 
eral question.  Reported  below:  229  Va.  164,  327  S.  E.  2d  102. 

No.  84-1921.  MARSHALL  v.  COURT  OF  APPEALS  OF  MARY- 
LAND. Appeal  from  Ct.  App.  Md.  dismissed  for  want  of  substan- 
tial federal  question. 

No.  84-1933.  COREY  OUTDOOR  ADVERTISING,  INC.  v.  BOARD 
OF  ZONING  ADJUSTMENT  OF  THE  CITY  OF  ATLANTA  ET  AL.  Ap- 
peal from  Sup.  Ct.  Ga.  dismissed  for  want  of  substantial  federal 
question.  Reported  below:  254  Ga.  221,  327  S.  E.  2d  178. 

No.  84-1941.  CALDER  RACE  COURSE,  INC.,  ET  AL.  v.  DIVI- 
SION OF  PARI-MUTUEL  WAGERING,  DEPARTMENT  OF  BUSINESS 

REGULATION,  ET  AL.  Appeal  from  Sup.  Ct.  Fla.  dismissed  for 
want  of  substantial  federal  question.  Reported  below:  464  So.  2d 
128. 

No.  84-6766.  THOMSEN  v.  AMERICAN  LUTHERAN  CHURCH, 
INC.,  ET  AL.  Appeal  from  Ct.  App.  Minn,  dismissed  for  want  of 
substantial  federal  question. 

No.  84-6800.  RHODES  v.  BOARD  OF  EDUCATION  OF  THE 
CHAMA  VALLEY  INDEPENDENT  SCHOOL  DISTRICT  ET  AL.  Appeal 
from  Sup.  Ct.  N.  M.  dismissed  for  want  of  substantial  federal 
question.  Reported  below:  102  N.  M.  293,  694  P.  2d  1358. 

No.  84-6888.  RASKE  v.  JORANDBY  ET  AL.  Appeal  from  Sup. 
Ct.  Fla.  dismissed  for  want  of  substantial  federal  question.  Re- 
ported below:  469  So.  2d  750. 

No.  84-6997.  PENZA  v.  NEW  ENGLAND  MEDICAL  CENTER 
INC.  ET  AL.  Appeal  from  App.  Ct.  Mass,  dismissed  for  want  of 
substantial  federal  question.  Reported  below:  19  Mass.  App. 
1106,  472  N.  E.  2d  1390. 

No.  85-4.  MARESCA  ET  AL.  v.  CUOMO,  GOVERNOR  OF  NEW 
YORK,  ET  AL.  Appeal  from  Ct.  App.  N.  Y.  dismissed  for  want  of 
substantial  federal  question.  Reported  below:  64  N.  Y.  2d  242, 
475  N.  E.  2d  95. 

No.  85-72.  MAINE  STATE  TROOPERS  ASSN.  v.  MAINE  ET  AL. 
Appeal  from  Sup.  Jud.  Ct.  Me.  dismissed  for  want  of  substantial 
federal  question.  Reported  below:  491  A.  2d  538. 


ORDERS  803 

474  U.  S.  October  7,  1985 

No.  85-110.  BINT  ET  AL.  v.  CREATIVE  FOREST  PRODUCTS 
ET  AL.  Appeal  from  Sup.  Ct.  Idaho  dismissed  for  want  of  sub- 
stantial federal  question.  Reported  below:  108  Idaho  116,  697  P. 
2d  818. 

No.  85-189.  NORTON  v.  ILLINOIS.  Appeal  from  App.  Ct.  111., 
3d  Dist. ,  dismissed  for  want  of  substantial  federal  question.  Re- 
ported below:  127  111.  App.  3d  1169,  483  N.  E.  2d  733. 

No.    85-205.        ASMUSSEN   ET   AL.    V.    ClTY   OF  AUSTIN,    TEXAS, 

ET  AL.  (two  cases).      Appeals  from  Ct.  App.  Tex.,  3d  Sup.  Jud. 
Dist. ,  dismissed  for  want  of  substantial  federal  question. 

No.  85-5010.  MIHAL  ET  AL.  v.  SARGIS  ET  AL.  Appeal  from 
Sup.  Ct.  Ohio  dismissed  for  want  of  substantial  federal  question. 

No.  85-5177.  GORDON  v.  IDAHO.  Appeal  from  Ct.  App.  Idaho 
dismissed  for  want  of  substantial  federal  question.  Reported 
below:  108  Idaho  178,  697  P.  2d  1192. 

No.  84-1824.  WHITAKER  ET  AL.  v.  KNAPP.  Appeal  from 
C.  A.  7th  Cir.  dismissed  for  want  of  jurisdiction.  Treating  the 
papers  whereon  the  appeal  was  taken  as  a  petition  for  writ  of 
certiorari,  certiorari  denied.  Reported  below:  757  F.  2d  827. 

No.  84-1835.  AMERICAN  INSURANCE  ASSN.  ET  AL.  v.  CHU, 
COMMISSIONER  OF  TAXATION  AND  FINANCE  OF  THE  STATE  OF 
NEW  YORK,  ET  AL.  Appeal  from  Ct.  App.  N.  Y.  dismissed  for 
want  of  jurisdiction.  Treating  the  papers  whereon  the  appeal 
was  taken  as  a  petition  for  writ  of  certiorari,  certiorari  denied. 
Reported  below:  64  N.  Y.  2d  379,  476  N.  E.  2d  637. 

No.  84-1860.  Roussos  v.  RETINA  CONSULTANTS,  P.  C.,  ET 
AL.  Appeal  from  Ct.  Sp.  App.  Md.  dismissed  for  want  of  juris- 
diction. Treating  the  papers  whereon  the  appeal  was  taken  as  a 
petition  for  writ  of  certiorari,  certiorari  denied.  Reported  below: 
59  Md.  App.  739. 

No.  84-1902.  STRODE  v.  GREGORY  ET  AL.  Appeal  from  Ct. 
App.  Cal.,  3d  App.  Dist.,  dismissed  for  want  of  jurisdiction. 
Treating  the  papers  whereon  the  appeal  was  taken  as  a  petition 
for  writ  of  certiorari,  certiorari  denied. 

No.  84-1945.  GALUSZKA  v.  SCHWAB,  FOR  AND  ON  BEHALF  OF 
THE  MINOR,  SCHWAB.  Appeal  from  Ct.  App.  La.,  4th  Cir.,  dis- 
missed for  want  of  jurisdiction.  Treating  the  papers  whereon  the 


804  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

appeal  was  taken  as  a  petition  for  writ  of  certiorari,  certiorari 
denied.     Reported  below:  463  So.  2d  737. 

No.  84-1968.  ZUGER  u  UNITED  STATES.  Appeal  from  C.  A. 
2d  Cir.  dismissed  for  want  of  jurisdiction.  Treating  the  papers 
whereon  the  appeal  was  taken  as  a  petition  for  writ  of  certiorari, 
certiorari  denied. 

No.  84-6832.  RucKER  v.  CITY  OF  ST.  Louis  ET  AL.  Appeal 
from  C.  A.  8th  Cir.  dismissed  for  want  of  jurisdiction.  Treating 
the  papers  whereon  the  appeal  was  taken  as  a  petition  for  writ  of 
certiorari,  certiorari  denied. 

No.  84-6856.  PRENZLER  v.  REYNOLDS,  U.  S.  ATTORNEY,  ET 
AL.  Appeal  from  C.  A.  9th  Cir.  dismissed  for  want  of  juris- 
diction. Treating  the  papers  whereon  the  appeal  was  taken  as  a 
petition  for  writ  of  certiorari,  certiorari  denied. 

No.  84-6961.  RODMAN  v.  CONTINENTAL  INSURANCE  Cos.  ET 
AL.  Appeal  from  C.  A.  9th  Cir.  dismissed  for  want  of  juris- 
diction. Treating  the  papers  whereon  the  appeal  was  taken  as  a 
petition  for  writ  of  certiorari,  certiorari  denied.  Reported  below: 
753  F.  2d  1083. 

No.  85-92.  EDGERTON  u  DELAWARE.  Appeal  from  Sup.  Ct. 
Del.  dismissed  for  want  of  jurisdiction.  Treating  the  papers 
whereon  the  appeal  was  taken  as  a  petition  for  writ  of  certiorari, 
certiorari  denied.  Reported  below:  497  A.  2d  786. 

No.  85-95.  MOELLER  v.  CARRADINE  ET  AL.  Appeal  from 
C.  A.  8th  Cir.  dismissed  for  want  of  jurisdiction.  Treating  the 
papers  whereon  the  appeal  was  taken  as  a  petition  for  writ  of 
certiorari,  certiorari  denied. 

No.  85-102.  MEN'S  WEARHOUSE,  INC.  v.  HELMS.  Appeal 
from  Ct.  App.  Tex.,  1st  Sup.  Jud.  Dist.,  dismissed  for  want  of 
jurisdiction.  Treating  the  papers  whereon  the  appeal  was  taken 
as  a  petition  for  writ  of  certiorari,  certiorari  denied.  Reported 
below:  682  S.  W.  2d  429. 

No.  85-116.  PETERS  v.  CALIFORNIA.  Appeal  from  Ct.  App. 
CaL,  2d  App.  Dist.,  dismissed  for  want  of  jurisdiction.  Treating 
the  papers  whereon  the  appeal  was  taken  as  a  petition  for  writ  of 
certiorari,  certiorari  denied. 


ORDERS  805 

474  U.  S.  October  7,  1985 

No.  85-134.  ZUGER  u  UNITED  STATES.  Appeal  from  C.  A. 
2d  Cir.  dismissed  for  want  of  jurisdiction.  Treating  the  papers 
whereon  the  appeal  was  taken  as  a  petition  for  writ  of  certiorari, 
certiorari  denied.  Reported  below:  755  F.  2d  915. 

No.  85-5007.  PAVILONIS  v.  MASSACHUSETTS.  Appeal  from 
Sup.  Jud.  Ct.  Mass,  dismissed  for  want  of  jurisdiction.  Treating 
the  papers  whereon  the  appeal  was  taken  as  a  petition  for  writ  of 
certiorari,  certiorari  denied.  Reported  below:  394  Mass.  1001, 

475  N.  E.  2d  75. 

No.  85-5148.  BOWDEN  v.  IDAHO  DEPARTMENT  OF  HEALTH 
AND  WELFARE.  Appeal  from  Sup.  Ct.  Idaho  dismissed  for  want 
of  jurisdiction.  Treating  the  papers  whereon  the  appeal  was 
taken  as  a  petition  for  writ  of  certiorari,  certiorari  denied.  Re- 
ported below:  108  Idaho  101,  697  P.  2d  441. 

No.  84-1891.  BRUNO  v.  NEW  ORLEANS  DEPARTMENT  OF  PO- 
LICE. Appeal  from  Sup.  Ct.  La.  dismissed  for  want  of  jurisdic- 
tion. Treating  the  papers  whereon  the  appeal  was  taken  as  a 
petition  for  writ  of  certiorari,  certiorari  denied.  JUSTICE  WHITE 
and  JUSTICE  BLACKMUN  would  postpone  consideration  of  question 
of  jurisdiction  to  a  hearing  of  the  case  on  the  merits.  Reported 
below:  462  So.  2d  139. 

No.  84-6865.  RUCKER  u  CITY  OF  ST.  Louis  ET  AL.  Appeal 
from  D.  C.  E.  D.  Mo.  dismissed  for  want  of  jurisdiction. 

No.  85-57.  STOP-N-Go,  INC.  v.  BRADFIELD,  ADMINISTRATOR 
OF  THE  ESTATE  OF  BRADFIELD.  Appeal  from  Sup.  Ct.  Ohio  dis- 
missed for  want  of  jurisdiction.  Reported  below:  17  Ohio  St.  3d 
58,  477  N.  E.  2d  621. 

No.  85-148.  BLUE  CROSS  &  BLUE  SHIELD  OF  MICHIGAN  v. 
MILLIKEN,  GOVERNOR  OF  MICHIGAN,  ET  AL.  Appeal  from  Sup. 
Ct.  Mich,  dismissed  for  want  of  substantial  federal  question. 
JUSTICE  BRENNAN,  JUSTICE  WHITE,  and  JUSTICE  REHNQUIST 
would  note  probable  jurisdiction  and  set  case  for  oral  argument. 
Reported  below:  422  Mich.  1,  367  N.  W.  2d  1. 

Certiorari  Granted— Vacated  and  Remanded 

No.  84-1715.  CITY  OF  LAWTON,  OKLAHOMA,  ET  AL.  v.  LUSBY 
ET  AL.  C.  A.  10th  Cir.  Certiorari  granted,  judgment  vacated, 
and  case  remanded  for  further  consideration  in  light  of  Oklahoma 


806  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

City  v.  Tuttle,  471  U.  S.  808  (1985).     Reported  below:  749  F.  2d 
1423. 

No.  84-1768.  ALABAMA  DEPARTMENT  OF  CORRECTIONS  v. 
GLOVER.  C.  A.  llth  Cir.  Motion  of  respondent  for  leave  to 
proceed  in  forma  pauperis  and  certiorari  granted.  Judgment 
vacated  and  case  remanded  for  further  consideration  in  light  of 
Kentucky  v.  Graham,  473  U.  S.  159  (1985).  Reported  below: 
734  F.  2d  691  and  753  F.  2d  1569. 

No.  84-1971.  SUN  OIL  Co.  v.  WORTMAN  ET  AL.  Sup.  Ct. 
Kan.  Certiorari  granted,  judgment  vacated,  and  case  remanded 
for  further  consideration  in  light  of  Phillips  Petroleum  Co.  v. 
Shutts,  472  U.  S.  797  (1985).  Reported  below:  236  Kan.  266,  690 
P.  2d  385. 

No.  84-6842.  WILLIAMS  v.  KEMP,  WARDEN.  Sup.  Ct.  Ga. 
Motion  of  petitioner  for  leave  to  proceed  in  forma  pauperis  and 
certiorari  granted.  Judgment  vacated  and  case  remanded  for  fur- 
ther consideration  in  light  of  Francis  v.  Franklin,  471  U.  S.  307 
(1985). 

No.  84-6946.  JEFFERSON  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Motion  of  petitioner  for  leave  to  proceed  in  forma  pauperis  and 
certiorari  granted.  Judgment  vacated  and  case  remanded  for  fur- 
ther consideration  in  light  of  Garrett  v.  United  States,  471  U.  S. 
773  (1985).  Reported  below:  760  F.  2d  821. 

No.  84-6953.  BURGER  v.  KEMP,  WARDEN.  C.  A.  llth  Cir. 
Motion  of  petitioner  for  leave  to  proceed  in  forma  pauperis  and 
certiorari  granted.  Judgment  vacated  and  case  remanded  for  fur- 
ther consideration  in  light  of  Francis  v.  Franklin,  471  U.  S.  307 
(1985).  Reported  below:  753  F.  2d  930. 

No.  85-66.  FLORIDA  v.  ARANGO.  Sup.  Ct.  Fla.  Motion  of 
respondent  for  leave  to  proceed  in  forma  pauperis  and  certiorari 
granted.  Judgment  vacated  and  case  remanded  for  further  con- 
sideration in  light  of  United  States  v.  Bagley,  473  U.  S.  667 
(1985).  JUSTICE  BRENNAN,  JUSTICE  MARSHALL,  JUSTICE 
BLACKMUN,  and  JUSTICE  STEVENS  dissent  and  would  deny  cer- 
tiorari. Reported  below:  467  So.  2d  692. 

No.  85-5078.  SOTELO  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Motion  of  petitioner  for  leave  to  proceed  in  forma  pauperis  and 
certiorari  granted.  Judgment  vacated  and  case  remanded  to  the 


ORDERS  807 

474  U.  S.  October  7,  1985 

Court  of  Appeals  for  further  proceedings,  including,  if  appropri- 
ate, the  reentry  of  its  judgment  affirming  petitioner's  conviction 
and  appointment  of  counsel  to  assist  petitioner  in  seeking  timely 
review  of  that  judgment  in  this  Court.  JUSTICE  REHNQUIST  dis- 
sents. Reported  below:  742  F.  2d  1451. 

Certiorari  Dismissed 

No.  84-1862.  MORELAND  v.  POSS.  Sup.  Ct.  Ga.  Certiorari 
dismissed  for  want  of  a  final  judgment.  Reported  below:  253  Ga. 
730,  324  S.  E.  2d  456. 

Miscellaneous  Orders 

No. .     C.  H.  B.  FOODS,  INC.  v.  ENGLISH;  and 

No. .  HYLIN,  INDIVIDUALLY  AND  AS  ADMINISTRA- 
TRIX OF  THE  ESTATE  OF  HYLIN  v.  UNITED  STATES.  Motions  to 
direct  the  Clerk  to  file  petitions  for  writs  of  certiorari  out  of  time 
denied. 

No.  A-41.  PARK  COUNTY  RESOURCE  COUNCIL,  INC.,  ET  AL. 
v.  UNITED  STATES  DEPARTMENT  OF  AGRICULTURE  ET  AL. 
D.  C.  Wyo.  Application  for  stay  pending  appeal,  addressed  to 
THE  CHIEF  JUSTICE  and  referred  to  the  Court,  denied. 

No.  A-88.  HELFRICHT  v.  NEW  JERSEY.  Super.  Ct.  N.  J., 
App.  Div.  Application  to  continue  a  stay,  addressed  to  JUSTICE 
BRENNAN  and  referred  to  the  Court,  denied. 

No.  A-145.  SCHUCHMAN  ET  AL.  V.  UNITED  STATES.  Applica- 
tion for  injunction  and  all  other  relief,  addressed  to  JUSTICE 
BRENNAN  and  referred  to  the  Court,  denied. 

No.  D-312.  IN  RE  ERGAZOS,  460  U.  S.  1065.  Application  for 
reinstatement  to  the  Bar  of  this  Court  denied. 

No.  D-488.  IN  RE  DISBARMENT  OF  ROUSE.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  471  U.  S.  1012.] 

No.  D-496.  IN  RE  DISBARMENT  OF  HYTER.  Charles  Kilburn 
Hyter,  of  Hutchinson,  Kan. ,  having  requested  to  resign  as  a  mem- 
ber of  the  Bar  of  this  Court,  it  is  ordered  that  his  name  be 
stricken  from  the  roll  of  attorneys  admitted  to  practice  before  the 
Bar  of  this  Court.  The  rule  to  show  cause,  heretofore  issued  on 
June  3,  1985  [471  U.  S.  1133],  is  hereby  discharged. 

No.  D-498.  IN  RE  DISBARMENT  OF  SLONE.  Harold  G.  Slone, 
of  New  York,  N.  Y.,  having  requested  to  resign  as  a  member  of 


808  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

the  Bar  of  this  Court,  it  is  ordered  that  his  name  be  stricken  from 
the  roll  of  attorneys  admitted  to  practice  before  the  Bar  of  this 
Court.  The  rule  to  show  cause,  heretofore  issued  on  June  3,  1985 
[471  U.  S.  1134],  is  hereby  discharged. 

No.  D-499.  IN  RE  DISBARMENT  OF  JACOB.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  472  U.  S.  1005.] 

No.  D-500.  IN  RE  DISBARMENT  OF  WALTERS.  Harris  N. 
Walters,  of  Boynton,  Fla.,  having  requested  to  resign  as  a  mem- 
ber of  the  Bar  of  this  Court,  it  is  ordered  that  his  name  be 
stricken  from  the  roll  of  attorneys  admitted  to  practice  before  the 
Bar  of  this  Court.  The  rule  to  show  cause,  heretofore  issued  on 
June  10,  1985  [472  U.  S.  1005],  is  hereby  discharged. 

No.  D-502.  IN  RE  DISBARMENT  OF  ATKINS.  Benjamin  Sloan 
Atkins,  of  Atlanta,  Ga.,  having  requested  to  resign  as  a  member 
of  the  Bar  of  this  Court,  it  is  ordered  that  his  name  be  stricken 
from  the  roll  of  attorneys  admitted  to  practice  before  the  Bar  of 
this  Court.  The  rule  to  show  cause,  heretofore  issued  on  June  10, 
1985  [472  U.  S.  1005],  is  hereby  discharged. 

No.  D-520.  IN  RE  DISBARMENT  OF  WATSON.  It  is  ordered 
that  Roland  Watson,  of  Central  Islip,  N.  Y.,  be  suspended  from 
the  practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  35,  Orig.  UNITED  STATES  v.  MAINE  ET  AL.  Exceptions 
to  the  Report  of  the  Special  Master  are  set  for  oral  argument  in 
due  course.  [For  earlier  order  herein,  see,  e.  g.,  472  U.  S.  1015.] 

No.  83-1968.  THORNBURG,  ATTORNEY  GENERAL  OF  NORTH 
CAROLINA,  ET  AL.  v.  GINGLES  ET  AL.  D.  C.  E.  D.  N.  C.  [Prob- 
able jurisdiction  noted,  471  U.  S.  1064.]  Motions  of  Legal  Serv- 
ices of  North  Carolina,  Dennis  DeConcini  et  al.,  Common  Cause, 
American  Civil  Liberties  Union  Foundation,  Inc.,  et  al.,  and 
James  G.  Martin,  Governor  of  North  Carolina,  for  leave  to  file 
briefs  as  amid  curiae  granted.  Motion  of  appellants  and  appel- 
lees for  leave  to  file  oversized  portion  of  joint  appendix  granted. 

No.  84-127.  RlCHARDSON-MERRELL  INC.  V.  ROLLER,  AN  IN- 
FANT, BY  AND  THROUGH  ROLLER  ET  ux. ,  HER  NATURAL  GUARD- 
IANS, ET  AL.,  472  U.  S.  424.  Motion  of  respondents  to  retax 


ORDERS  809 

474  U.  S.  October  7,  1985 

costs  denied.     JUSTICE  BLACKMUN  dissents.     JUSTICE  POWELL 
took  no  part  in  the  consideration  or  decision  of  this  motion. 

No.  84-495.  THORNBURGH,  GOVERNOR  OF  PENNSYLVANIA,  ET 
AL.  v.  AMERICAN  COLLEGE  OF  OBSTETRICIANS  AND  GYNECOLO- 
GISTS ET  AL.  C.  A.  3d  Cir.  [Probable  jurisdiction  postponed, 

471  U.  S.  1014];  and 

No.  84-1379.  DIAMOND  ET  AL.  v.  CHARLES  ET  AL.  C.  A.  7th 
Cir.  [Probable  jurisdiction  noted,  471  U.  S.  1115.]  Motion  of 
Women  Lawyers'  Association  of  Los  Angeles,  California,  et  al.  for 
leave  to  file  a  brief  as  amid  curiae  granted. 

No.  84-871.  LOUISIANA  PUBLIC  SERVICE  COMMISSION  v.  FED- 
ERAL COMMUNICATIONS  COMMISSION  ET  AL.  C.  A.  4th  Cir. 
[Probable  jurisdiction  postponed,  472  U.  S.  1025]; 

No.  84-889.  CALIFORNIA  ET  AL.  v.  FEDERAL  COMMUNICA- 
TIONS COMMISSION  ET  AL.  C.  A.  4th  Cir.  [Certiorari  granted, 

472  U.  S.  1025]; 

No.  84-1054.  PUBLIC  UTILITIES  COMMISSION  OF  OHIO  ET  AL. 
v.  FEDERAL  COMMUNICATIONS  COMMISSION  ET  AL.  C.  A.  4th 
Cir.  [Certiorari  granted,  472  U.  S.  1025];  and 

No.  84-1069.  FLORIDA  PUBLIC  SERVICE  COMMISSION  v.  FED- 
ERAL COMMUNICATIONS  COMMISSION  ET  AL.  C.  A.  4th  Cir. 
[Certiorari  granted,  472  U.  S.  1026.]  Motion  of  Telephone  Rate- 
payers Association  for  Cost-Based  and  Equitable  Rates  for  leave 
to  file  a  brief  as  amicus  curiae  granted.  JUSTICE  POWELL  and 
JUSTICE  O'CONNOR  took  no  part  in  the  consideration  or  decision  of 
this  motion. 

No.  84-1077.  WHITLEY,  INDIVIDUALLY  AND  AS  ASSISTANT 
SUPERINTENDENT,  OREGON  STATE  PENITENTIARY,  ET  AL.  v. 
ALBERS.  C.  A.  9th  Cir.  [Certiorari  granted,  472  U.  S.  1007.] 
Motion  for  appointment  of  counsel  granted,  and  it  is  ordered  that 
Gene  B.  Mechanic,  Esquire,  of  Portland,  Ore.,  be  appointed  to 
serve  as  counsel  for  respondent  in  this  case. 

No.  84-1181.  NEW  YORK  v.  CLASS.  Ct.  App.  N.  Y.  [Certio- 
rari granted,  471  U.  S.  1003.]  Motion  of  William  E.  Hellerstein, 
Esquire,  to  permit  Mark  C.  Cogan,  Esquire,  to  present  oral  argu- 
ment pro  hac  vice  on  behalf  on  respondent  granted. 

No.  84-1192.  GAF  CORP.  v.  CHENG,  472  U.  S.  1023.  Motion 
of  respondent  to  re  tax  costs  granted. 


810  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-1259.  Dow  CHEMICAL  Co.  v.  UNITED  STATES,  BY  AND 
THROUGH  ADMINISTRATOR,  ENVIRONMENTAL,  PROTECTION 
AGENCY.  C.  A.  6th  Cir.  [Certiorari  granted,  472  U.  S.  1007.] 
Motion  of  petitioner  to  maintain  under  seal  portions  of  the  record 
placed  under  seal  by  the  United  States  District  Court  for  the 
Eastern  District  of  Michigan  granted. 

No.  84-1273.  REGENTS  OF  THE  UNIVERSITY  OF  MICHIGAN  v. 
EWING.  C.  A.  6th  Cir.  [Certiorari  granted,  470  U.  S.  1083.] 
Further  consideration  of  motion  of  respondent  for  leave  to  amend 
the  Amended  Complaint  deferred  to  hearing  of  case  on  the  merits. 

No.  84-1480.  WAINWRIGHT,  SECRETARY,  FLORIDA  DEPART- 
MENT OF  CORRECTIONS  v.  GREENFIELD.  C.  A.  llth  Cir.  [Cer- 
tiorari granted,  471  U.  S.  1098.]  Motions  of  Illinois  Psychological 
Association  and  American  Civil  Liberties  Union  for  leave  to  file 
briefs  as  amid  curiae  granted. 

No.  84-1503.  CHICAGO  TEACHERS  UNION,  LOCAL  No.  1,  AFT, 
AFL-CIO,  ET  AL.  v.  HUDSON  ET  AL.  C.  A.  7th  Cir.  [Certiorari 
granted,  472  U.  S.  1007.]  Motion  of  Chicago  Teachers  Union, 
Local  No.  1,  and  Board  of  Education  of  City  of  Chicago  for  leave 
to  file  a  joint  brief  granted. 

No.  84-1529.  HECKLER,  SECRETARY  OF  HEALTH  AND  HUMAN 
SERVICES  v.  AMERICAN  HOSPITAL  ASSN.  ET  AL.  C.  A.  2d  Cir. 
[Certiorari  granted,  472  U.  S.  1016.]  Motion  of  American  Coali- 
tion of  Citizens  with  Disabilities  et  al.  for  leave  to  participate  in 
oral  argument  as  amid  curiae,  for  divided  argument,  and  for  ad- 
ditional time  for  oral  argument  denied.  Motion  of  respondents  for 
divided  argument  granted. 

No.  84-1531.     MICHIGAN  v.  JACKSON;  and 

No.  84-1539.  MICHIGAN  v.  BLADEL.  Sup.  Ct.  Mich.  [Certio- 
rari granted,  471  U.  S.  1124.]  Motion  of  respondents  for  divided 
argument  granted.  Motion  of  petitioner  for  divided  argument 
denied. 

No.  84-1555.  CONNOLLY  ET  AL.,  TRUSTEES  OF  THE  OPERAT- 
ING ENGINEERS  PENSION  TRUST  v.  PENSION  BENEFIT  GUAR- 
ANTY CORPORATION  ET  AL.;  and 

No.  84-1567.  WOODWARD  SAND  Co.,  INC.  v.  PENSION  BENE- 
FIT GUARANTY  CORPORATION  ET  AL.  D.  C.  C.  D.  Cal.  [Proba- 
ble jurisdiction  noted,  472  U.  S.  1006.]  Motion  of  appellant  in 


ORDERS  811 

474  U.  S.  October  7,  1985 

No.  84-1567  for  divided  argument  granted  to  be  divided  as  fol- 
lows: 20  minutes  for  appellants  in  No.  84-1555  and  10  minutes  for 
appellants  in  No.  84-1567.  Request  for  additional  time  for  oral 
argument  denied. 

No.  84-1601.  AETNA  LIFE  INSURANCE  Co.  v.  LAVOIE  ET  AL. 
Sup.  Ct.  Ala.  [Probable  jurisdiction  postponed,  471  U.  S.  1134.] 
Motion  of  Alabama  Defense  Lawyers'  Association  for  leave  to  file 
a  brief  as  amicus  curiae  granted. 

No.  84-1602.  ANDERSON  ET  AL.  v.  LIBERTY  LOBBY,  INC.,  ET 
AL.  C.  A.  D.  C.  Cir.  [Certiorari  granted,  471  U.  S.  1134.]  Mo- 
tions of  Readers'  Digest  Association,  Inc.,  and  Synanon  Church 
et  al.  for  leave  to  file  briefs  as  amid  curiae  granted. 

No.  84-1644.  GOLDEN  STATE  TRANSIT  CORP.  v.  CITY  OF  Los 
ANGELES.  C.  A.  9th  Cir.  [Certiorari  granted,  472  U.  S.  1016.] 
Motion  of  National  League  of  Cities  et  al.  for  leave  to  participate 
in  oral  argument  as  amid  curiae  and  for  divided  argument  denied. 

No.  84-1728.  EQUAL  EMPLOYMENT  OPPORTUNITY  COMMIS- 
SION v.  FEDERAL  LABOR  RELATIONS  AUTHORITY  ET  AL.  C.  A. 
D.  C.  Cir.  [Certiorari  granted,  472  U.  S.  1026.]  Motion  of 
Pacific  Legal  Foundation  for  leave  to  file  a  brief  as  amicus  curiae 
granted. 

No.  84-1800.     WALTERS  ET  AL.  v.  SPRUYTTE.     C.  A.  6th  Cir.; 

No.  85-23.     MARYLAND  v.  LODOWSKI.     Ct.  App.  Md.; 

No.  85-24.     MARYLAND  v.  ELFADL.     Ct.  Sp.  App.  Md.;  and 

No.  85-100.  MICHIGAN  v.  BLACKBURN.  Ct.  App.  Mich.  Mo- 
tions of  respondents  for  leave  to  proceed  in  forma  pauperis 
granted. 

No.  84-1880.  CITY  OF  ALCOA  ET  AL.  v.  MYERS,  ON  BEHALF 
OF  HERSELF  AND  HER  THREE  MINOR  CHILDREN,  DIXON  ET  AL. 
C.  A.  6th  Cir.  Motion  of  Tennessee  Valley  Public  Power  Associa- 
tion for  leave  to  file  a  brief  as  amicus  curiae  granted.  Motion  of 
respondent  for  leave  to  proceed  in  forma  pauperis  granted. 

No.  84-1907.  KAISER  ALUMINUM  &  CHEMICAL  CORP.  ET  AL. 
v.  BONJORNO  ET  AL.  C.  A.  3d  Cir.;  and 

No.  84-2022.  324  LIQUOR  CORP.,  DBA  YORKSHIRE  WINE  & 
SPIRITS  v.  MCLAUGHLIN  ET  AL.  Appeal  from  Ct.  App.  N.  Y. 
The  Solicitor  General  is  invited  to  file  briefs  in  these  cases 
expressing  the  views  of  the  United  States. 


812  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-2023.  INDEPENDENT  BANKERS  ASSOCIATION  OF  NEW 
YORK  STATE,  INC.,  ET  AL.  v.  MARINE  MIDLAND  BANK,  N.  A., 
ET  AL.  C.  A.  2d  Cir.; 

No.  85-98.  ANSCHUETZ  &  Co.,  GMBH  u  MISSISSIPPI  RIVER 
BRIDGE  AUTHORITY  ET  AL.  C.  A.  5th  Cir.; 

No.  85-99.  MESSERSCHMITT  BOLKOW  BLOHM,  GMBH  -v. 
WALKER  ET  AL.  C.  A.  5th  Cir. ;  and 

No.  85-182.  NORTHWEST  CENTRAL  PIPELINE  CORP.  ET  AL.  v. 
CORPORATION  COMMISSION  OF  KANSAS  ET  AL.  Appeal  from  Sup. 
Ct.  Kan.  The  Solicitor  General  is  invited  to  file  briefs  in  these 
cases  expressing  the  views  of  the  United  States. 

No.  84-6263.  BATSON  u  KENTUCKY.  Sup.  Ct.  Ky.  [Certio- 
rari  granted,  471  U.  S.  1052.]  Motion  of  the  Acting  Solicitor 
General  for  leave  to  participate  in  oral  argument  as  amicus  curia,e 
and  for  divided  argument  granted. 

No.  84-6807.  LEE  v.  ILLINOIS.  App.  Ct.  111.,  5th  Dist.  [Cer- 
tiorari  granted,  473  U.  S.  904.]  Motion  for  appointment  of 
counsel  granted,  and  it  is  ordered  that  Randy  E.  Blue,  Esquire, 
of  Mount  Vernon,  111. ,  be  appointed  to  serve  as  counsel  for  peti- 
tioner in  this  case. 

No.  84-6811.  MCCLESKEY  v.  KEMP,  SUPERINTENDENT,  GEOR- 
GIA DIAGNOSTIC  AND  CLASSIFICATION  CENTER.  C.  A.  llth  Cir. 
Motions  of  International  Human  Rights  Law  Group,  Congres- 
sional Black  Caucus,  and  Dr.  Peter  Sperlich  et  al.  for  leave  to  file 
briefs  as  am/id  curiae  granted. 

No.  84-6825.  PFEIL,  AS  PERSONAL  REPRESENTATIVE  OF  THE 
ESTATE  OF  PFEIL  v.  ROGERS,  FORMER  DISTRICT  ATTORNEY  OF 
RUSK  COUNTY,  ET  AL.  C.  A.  7th  Cir.;  and 

No.  84-6838.  BARRETT  v.  UNITED  STATES  CUSTOMS  SERVICE 
ET  AL.  C.  A.  5th  Cir.  Motions  of  petitioners  for  leave  to  pro- 
ceed in  forma  pauperis  denied.  Petitioners  are  allowed  until 
October  28,  1985,  within  which  to  pay  the  docketing  fee  required 
by  Rule  45(a)  and  to  submit  petitions  in  compliance  with  Rule  33 
of  the  Rules  of  this  Court. 

JUSTICE  BRENNAN,  JUSTICE  MARSHALL,  JUSTICE  BLACKMUN, 
and  JUSTICE  STEVENS,  dissenting. 

For  the  reasons  expressed  in  Brown  v.  Herald  Co.,  464  U.  S. 
928  (1983),  we  would  deny  the  petitions  for  writs  of  certiorari 
without  reaching  the  merits  of  the  motions  to  proceed  in  forma, 
pauperis. 


ORDERS  813 

474  U.  S.  October  7,  1985 

No.  84-6974.  ALEEM  v.  GENERAL  FELT  INDUSTRIES,  INC.,  ET 
AL.  C.  A.  9th  Cir.  Motion  of  petitioner  for  leave  to  proceed  in 
forma  pauper  is  denied.  Petitioner  is  allowed  until  October  28, 
1985,  within  which  to  pay  the  docketing  fee  required  by  Rule  45(a) 
and  to  submit  a  petition  in  compliance  with  Rule  33  of  the  Rules  of 
this  Court. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

For  the  reasons  expressed  in  Brown  v.  Herald  Co.,  464  U.  S. 
928  (1983),  we  would  deny  the  petition  for  writ  of  certiorari 
without  reaching  the  merits  of  the  motion  to  proceed  in  forma 
pauperis. 

No.  85-5028.     BURNETTE  v.  UNITED  STATES.     C.  A.  6th  Cir.; 

No.  85-5150.  PREWITT  v.  UNITED  STATES  POSTAL  SERVICE. 
C.  A.  5th  Cir.;  and 

No.  85-5154.  GOODLATAW,  PERSONAL  REPRESENTATIVE  FOR 
THE  ESTATE  OF  GOODLATAW  v.  ALASKA  ET  AL.  Sup.  Ct.  Alaska. 
Motions  of  petitioners  for  leave  to  proceed  in  forma  pauperis 
denied.  Petitioners  are  allowed  until  October  28,  1985,  within 
which  to  pay  the  docketing  fee  required  by  Rule  45(a)  and  to 
submit  petitions  in  compliance  with  Rule  33  of  the  Rules  of  this 
Court. 

JUSTICE  BRENNAN,  JUSTICE  MARSHALL,  and  JUSTICE  STE- 
VENS, dissenting. 

For  the  reasons  expressed  in  Brown  v.  Herald  Co.,  464  U.  S. 
928  (1983),  we  would  deny  the  petitions  for  writs  of  certiorari 
without  reaching  the  merits  of  the  motions  to  proceed  in  forma 
pauperis. 

No.  85-5115.  JORDAN  v.  UNITED  STATES  DEPARTMENT  OF 
STATE.  C.  A.  D.  C.  Cir.  Motion  of  petitioner  for  leave  to  pro- 
ceed in  forma  pauperis  denied.  Petitioner  is  allowed  until  Octo- 
ber 28,  1985,  within  which  to  pay  the  docketing  fee  required  by 
Rule  45(a)  and  to  submit  a  petition  in  compliance  with  Rule  33  of 
the  Rules  of  this  Court. 

JUSTICE  BRENNAN,  dissenting. 

For  the  reasons  expressed  in  Brown  v.  Herald  Co.,  464  U.  S. 
928  (1983),  I  would  deny  the  petition  for  writ  of  certiorari  without 
reaching  the  merits  of  the  motion  to  proceed  in  forma  pauperis. 

No.  84-6923.  IN  RE  DAY.  Sup.  Ct.  Tex.  Petition  for  writ  of 
common-law  certiorari  denied. 


814  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-1969.  IN  RE  KINNANE; 

No.  84-1970.  IN  RE  ZUGER; 

No.  85-5103.  IN  RE  FORD;  and 

No.  85-5129.  IN  RE  BLACK.  Petitions  for  writs  of  habeas 
corpus  denied. 

No.  84-1976.  IN  RE  WALTON; 

No.  84-1980.  IN  RE  RATCLIFF; 

No.  84-6814.  IN  RE  WORD; 

No.  84-6894.  IN  RE  WATKINS; 

No.  84-6941.  IN  RE  PALLETT; 

No.  85-5003.  IN  RE  WHALEY; 

No.  85-5160.  IN  RE  SMITH-BEY;  and 

No.  85-5196.  IN  RE  JOOST.  Petitions  for  writs  of  mandamus 
denied. 

No.  85-5099.  IN  RE  DAY.  Motion  of  petitioner  to  defer  con- 
sideration of  the  petition  for  mandamus  denied.  Petition  for  writ 
of  mandamus  denied. 

Probable  Jurisdiction  Noted 

No.  84-1944.  UNITED  STATES  ET  AL.  v.  HEMME  ET  AL.  Ap- 
peal from  D.  C.  S.  D.  111.  Probable  jurisdiction  noted. 

No.  84-2030.  BROWN-FORMAN  DISTILLERS  CORP.  v.  NEW 
YORK  STATE  LIQUOR  AUTHORITY.  Appeal  from  Ct.  App.  N.  Y. 
Probable  jurisdiction  noted  limited  to  Question  2  presented  by  the 
statement  as  to  jurisdiction.  Reported  below:  64  N.  Y.  2d  479, 
479  N.  E.  2d  764. 

Certiorari  Granted 

No.  84-1667.  BETHEL  SCHOOL  DISTRICT  No.  403  ET  AL.  v. 
FRASER,  A  MINOR,  ET  AL.  C.  A.  9th  Cir.  Certiorari  granted. 
Reported  below:  755  F.  2d  1356. 

No.  84-1726.  EAST  RIVER  STEAMSHIP  CORP.  ET  AL.  v. 
TRANSAMERICA  DELAVAL  INC.  C.  A.  3d  Cir.  Certiorari 
granted.  Reported  below:  752  F.  2d  903. 

No.  84-1839.  SCHIAVONE  ET  AL.  v.  FORTUNE,  AKA  TIME,  INC. 
C.  A.  3d  Cir.  Certiorari  granted.  Reported  below:  750  F.  2d 
15. 

No.  84-1913.  AT&T  TECHNOLOGIES,  INC.  v.  COMMUNICA- 
TIONS WORKERS  OF  AMERICA  ET  AL.  C.  A.  7th  Cir.  Certiorari 
granted.  Reported  below:  751  F.  2d  203. 


ORDERS  815 

474  U.  S.  October  7,  1985 

No.  84-1922.  UNITED  STATES  v.  KOECHER.  C.  A.  2d  Cir. 
Certiorari  granted.  Reported  below:  755  F.  2d  1022. 

No.  84-1923.  HECKLER,  SECRETARY  OF  HEALTH  AND  HUMAN 
SERVICES,  ET  AL.  u  CITY  OF  NEW  YORK  ET  AL.  C.  A.  2d  Cir. 
Certiorari  granted.  Reported  below:  742  F.  2d  729  and  755  F.  2d 
31. 

No.  84-1948.  BLOCK,  SECRETARY  OF  AGRICULTURE,  ET  AL.  v. 
PAYNE  ET  AL.  C.  A.  llth  Cir.  Certiorari  granted.  Reported 
below:  751  F.  2d  1191. 

No.  84-1979.     PSFS  SAVINGS  BANK,  FSB  v.  VINSON  ET  AL. 

C.  A.  D.  C.  Cir.     Certiorari  granted.     Reported  below:  243  U.  S. 
App.  D.  C.  323,  753  F.  2d  141,  and  245  U.  S.  App.  D.  C.  306,  760 
F.  2d  1330. 

No.  85-5.  PENNSYLVANIA  ET  AL.  v.  DELAWARE  VALLEY  CITI- 
ZENS' COUNCIL  FOR  CLEAN  AIR  ET  AL.  C.  A.  3d  Cir.  Certiorari 
granted.  Reported  below:  762  F.  2d  272. 

No.  85-21.  SQUARE  D  Co.  ET  AL.  v.  NIAGARA  FRONTIER  TAR- 
IFF BUREAU,  INC.,  ET  AL.  C.  A.  2d  Cir.  Certiorari  granted. 
Reported  below:  760  F.  2d  1347. 

No.  85-54.     LIBRARY  OF  CONGRESS  ET  AL.  v.  SHAW.     C.  A. 

D.  C.  Cir.     Certiorari  granted.     Reported  below:  241  U.  S.  App. 
D.  C.  355,  747  F.  2d  1469. 

No.  85-215.  MCMILLAN  ET  AL.  v.  PENNSYLVANIA.  Sup.  Ct. 
Pa.  Certiorari  granted.  Reported  below:  508  Pa.  25,  494  A.  2d 
354. 

No.  85-225.  HECKLER,  SECRETARY  OF  HEALTH  AND  HUMAN 
SERVICES,  ET  AL.  v.  MICHIGAN  ACADEMY  OF  FAMILY  PHYSICIANS 
ET  AL.  C.  A.  6th  Cir.  Certiorari  granted.  Reported  below: 
757  F.  2d  91. 

No.  84-1656.  LOCAL  28  OF  THE  SHEET  METAL  WORKERS'  IN- 
TERNATIONAL ASSN.  ET  AL.  v.  EQUAL  EMPLOYMENT  OPPORTU- 
NITY COMMISSION  ET  AL.  C.  A.  2d  Cir.  Certiorari  granted  and 
case  set  for  oral  argument  in  tandem  with  No.  84-1999,  Local 
No.  93,  Int'l  Assn.  of  Firefighters  v.  Cleveland,  infra.  Reported 
below:  753  F.  2d  1172. 

No.  84-1661.  KIMMELMAN,  ATTORNEY  GENERAL  OF  NEW 
JERSEY,  ET  AL.  v.  MORRISON.  C.  A.  3d  Cir.  Motion  of  respond- 


816  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

ent  for  leave  to  proceed  in  forma  pauperis  and  certiorari  granted. 
Reported  below:  752  F.  2d  918. 

No.  84-1736.  HIJAR,  SUPERINTENDENT,  FEDERAL  PRISON 
CAMP  AT  BORON,  CALIFORNIA  v.  BURRUS.  C.  A.  9th  Cir.  Mo- 
tion of  respondent  for  leave  to  proceed  in  forma  pauperis  and 
certiorari  granted.  Reported  below:  743  F.  2d  693. 

No.  84-1865.  LOCKHART,  DIRECTOR,  ARKANSAS  DEPARTMENT 
OF  CORRECTIONS  u  McCREE.  C.  A.  8th  Cir.  Motion  of  re- 
spondent for  leave  to  proceed  in  forma  pauperis  and  certiorari 
granted.  Reported  below:  758  F.  2d  226. 

No.  84-1974.  ROSE,  WARDEN  v.  CLARK.  C.  A.  6th  Cir.  Mo- 
tion of  respondent  for  leave  to  proceed  in  forma  pauperis  granted. 
Certiorari  granted  limited  to  Question  2  presented  by  the  petition. 
Reported  below:  762  F.  2d  1006. 

No.  84-1999.  LOCAL  NUMBER  93,  INTERNATIONAL  ASSOCIA- 
TION OF  FIREFIGHTERS,  AFL-CIO,  C.  L.  C.  v.  CITY  OF  CLEVE- 
LAND ET  AL.  C.  A.  6th  Cir.  Certiorari  granted  and  case  set  for 
oral  argument  in  tandem  with  No.  84-1656,  Local  28  of  Sheet 
Metal  Workers  v.  EEOC,  supra.  Reported  below:  753  F.  2d  479. 

No.  85-202.  OFFSHORE  LOGISTICS,  INC.,  ET  AL.  v.  TALLEN- 
TIRE  ET  AL.  C.  A.  5th  Cir.  Motions  of  Sonat  Offshore  Drilling, 
Inc. ,  et  al.  and  Maritime  Law  Association  of  the  United  States  for 
leave  to  file  briefs  as  amici  curiae  granted.  Certiorari  granted. 
Reported  below:  754  F.  2d  1274. 

No.  85-5023.     POLAND  v.  ARIZONA;  and 

No.  85-5024.  POLAND  v.  ARIZONA,  Sup.  Ct.  Ariz.  Motions 
of  petitioners  for  leave  to  proceed  in  forma  pauperis  granted. 
Certiorari  granted  in  No.  85-5023  limited  to  Question  1  presented 
by  the  petition.  Certiorari  granted  in  No.  85-5024.  Cases 
consolidated  and  a  total  of  one  hour  allotted  for  oral  argument. 
Reported  below:  No.  85-5023,  144  Ariz.  388,  698  P.  2d  183; 
No.  85-5024,  144  Ariz.  412,  698  P.  2d  207. 

Certiorari  Denied.      (See  also  Nos.   84-1824,   84-1835,   84-1860, 

84-1902,  84-1945,  84-1968,  84-6832,  84-6856,  84-6961,  85-92, 

85-95,  85-102,  85-116,  85-134,  85-5007,  85-5148,  84-1891, 

and  84-6923,  supra.) 

No.    84-1459.       HERNANDEZ-CARTAYA    ET    AL.    v.    UNITED 

STATES.      C.  A.  llth  Cir.      Certiorari  denied.      Reported  below: 

747  F.  2d  1390. 


ORDERS  817 

474  U.  S.  October  7,  1985 

No.  84-1508.  HARVIS  CONSTRUCTION,  INC.  ,  ET  AL.  u  UNITED 
STATES  EX  REL.  MARTIN  STEEL  CONSTRUCTORS,  INC.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  750  F.  2d  759. 

No.  84-1522.  DUFRESNE  v.  BAER,  CHAIRMAN,  UNITED 
STATES  PAROLE  COMMISSION,  ET  AL.  C.  A.  llth  Cir.  Certio- 
rari denied.  Reported  below:  744  F.  2d  1543. 

No.  84-1526.  QUINN  ET  AL.  v.  UNITED  STATES.  C.  A.  9th 
Cir.  Certiorari  denied. 

No.  84-1534.  LUTJEHARMS,  COMMISSIONER  OF  EDUCATION  OF 
NEBRASKA,  ET  AL.  v.  ROSE,  AS  NEXT  FRIEND  OF  ROSE.  C.  A. 
8th  Cir.  Certiorari  denied.  Reported  below:  748  F.  2d  1258. 

No.  84-1550.  SMITH  ET  AL.,  INDIVIDUALLY  AND  DBA  SHARP- 
EYE  ENTERPRISES  v.  GOLDEN  WEST  BROADCASTERS,  INC.,  ET 
AL.  Ct.  App.  Cal. ,  2d  App.  Dist.  Certiorari  denied. 

No.  84-1564.  MONICK  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  753  F.  2d  1085. 

No.  84-1613.       HUEBNER  ET  AL.  V.  UNITED  STATES.       C.  A.  7th 

Cir.      Certiorari  denied.      Reported  below:  752  F.  2d  1235. 

No.  84-1621.  OCCIDENTAL  OIL  SHALE,  INC.  v.  STATE  BOARD 
OF  LAND  COMMISSIONERS  OF  COLORADO  ET  AL.  Sup.  Ct.  Colo. 
Certiorari  denied.  Reported  below:  692  P.  2d  321. 

No.  84-1625.  CAPITAL  CITY  PRESS,  INC.  u  BURATT.  Ct. 
App.  La.,  1st  Cir.  Certiorari  denied.  Reported  below:  459 
So.  2d  1268. 

No.  84-1642.  KRODEL  v.  YOUNG,  ASSOCIATE  COMMISSIONER, 
OFFICE  OF  HEARINGS  AND  APPEALS,  SOCIAL  SECURITY  ADMINIS- 
TRATION, ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  denied.  Re- 
ported below:  242  U.  S.  App.  D.  C.  11,  748  F.  2d  701. 

No.  84-1646.  BENZ  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  740  F.  2d  903. 

No.  84-1654.  LAVELLE  v.  UNITED  STATES.  C.  A.  D.  C.  Cir. 
Certiorari  denied.  Reported  below:  243  U.  S.  App.  D.  C.  47,  751 
F.  2d  1266. 

No.  84-1666.  CUMMINGS  v.  UNITED  STATES  ET  AL.  C.  A.  6th 
Cir.  Certiorari  denied.  Reported  below:  751  F.  2d  810. 


818  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-1671.  ZEILER  ET  AL.  u  OHIO  HIGH  SCHOOL  ATHLETIC 
ASSN.  ET  AL.  C.  A.  6th  Cir.  Certiorari  denied.  Reported 
below:  755  F.  2d  934. 

No.  84-1679.  NOBLE  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  754  F.  2d  1324. 

No.  84-1681.  MASTER  PRINTERS  OF  AMERICA  v.  BROCK,  SEC- 
RETARY OF  LABOR.  C.  A.  4th  Cir.  Certiorari  denied.  Re- 
ported below:  751  F.  2d  700. 

No.  84-1683.  DOBEY  ET  ux.  v.  UNITED  STATES.  C.  A.  10th 
Cir.  Certiorari  denied.  Reported  below:  751  F.  2d  1140. 

No.  84-1702.  H.  F.  ALLEN  ORCHARDS  ET  AL.  v.  UNITED 
STATES.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below: 
749  F.  2d  1571. 

No.  84-1710.  BELLE  FOURCHE  PIPELINE  Co.  ET  AL.  v. 
UNITED  STATES  ET  AL.  C.  A.  10th  Cir.  Certiorari  denied. 
Reported  below:  751  F.  2d  332. 

No.  84-1729.  SATTERFIELD  ET  AL.  v.  HUEBNER  ET  ux.  Ct. 
App.  Wash.  Certiorari  denied.  Reported  below:  38  Wash.  App. 
66,  684  P.  2d  752. 

No.  84-1748.     HEBERT  u  UNITED  STATES; 
No.  84-1812.     ANTONE  u  UNITED  STATES; 
No.  84-1864.     AMUNY  v.  UNITED  STATES;  and 
No.  84-1878.     MAXWELL  v.  UNITED  STATES.     C.  A.  5th  Cir. 
Certiorari  denied.     Reported  below:  753  F.  2d  1301. 

No.  84-1759.  T.  G.  &  Y.  STORES,  INC.  v.  LUSBY  ET  AL. 
C.  A.  10th  Cir.  Certiorari  denied.  Reported  below:  749  F.  2d 
1423. 

No.  84-1765.  NEAL  u  TEXAS.  Ct.  Crim.  App.  Tex.  Certio- 
rari denied.  Reported  below:  689  S.  W.  2d  420. 

No.  84-1770.  WACO  FINANCIAL,  INC.,  ET  AL.  v.  SECURITIES 
AND  EXCHANGE  COMMISSION.  C.  A.  6th  Cir.  Certiorari  denied. 
Reported  below:  751  F.  2d  831. 

No.  84-1771.  NILSON  VAN  &  STORAGE  ET  AL.  v.  UNITED 
STATES.  C.  A.  4th  Cir.  Certiorari  denied.  Reported  below: 
755  F.  2d  362. 


ORDERS  819 

474  U.  S.  October  7,  1985 

No.  84-1772.  KARMUN  ET  AL.  v.  COMMISSIONER  OF  INTERNAL 
REVENUE.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below: 
749  F.  2d  567. 

No.  84-1774.  EWERT  v.  EXXON  Co.,  USA,  A  DIVISION  OF 
EXXON  CORP.,  ET  AL.  C.  A.  9th  Cir.  Certiorari  denied. 
Reported  below:  755  F.  2d  935. 

No.  84-1775.       CORONEL-QUINTANA  V.  UNITED  STATES.       C.  A. 

8th  Cir.     Certiorari  denied.     Reported  below:  752  F.  2d  1284. 

No.  84-1776.  HANCHARIK  u  PENNSYLVANIA.  Sup.  Ct.  Pa. 
Certiorari  denied. 

No.  84-1778.     FISHER  v.  UNITED  STATES;  and 
No.  84-6972.     WHEELINGS  u  UNITED  STATES.     C.  A.  2d  Cir. 
Certiorari  denied.     Reported  below:  757  F.  2d  1359. 

No.  84-1779.  PENNSYLVANIA  ET  AL.  v.  DELAWARE  VALLEY 
CITIZENS'  COUNCIL  FOR  CLEAN  AIR  ET  AL.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  755  F.  2d  38. 

No.  84-1780.  MCMAHON,  CALIFORNIA  DIRECTOR  OF  SOCIAL 
SERVICES  v.  GREEN  ET  AL.  Ct.  App.  Cal.,  3d  App.  Dist.  Cer- 
tiorari denied.  Reported  below:  161  Cal.  App.  3d  678,  207  Cal. 
Rptr.  830. 

No.  84-1781.  ALL  AMERICAN  LIFE  &  CASUALTY  Co.  v.  OCE- 
ANIC TRADE  ALLIANCE  COUNCIL  INTERNATIONAL,  INC.,  ET  AL. 
C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  756  F.  2d 
474. 

No.  84-1784.  GRYNBERG  ET  AL.  v.  DANZIG  ET  AL.  Ct.  App. 
Cal.,  1st  App.  Dist.  Certiorari  denied.  Reported  below:  161 
Cal.  App.  3d  1128,  208  Cal.  Rptr.  336. 

No.  84-1788.  INTERNATIONAL  UNION  OF  ELEVATOR  CON- 
STRUCTORS, AFL-CIO  v.  NATIONAL  ELEVATOR  INDUSTRY,  INC. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  253. 

No.  84-1792.  SWEATER  BEE  BY  BANFF,  LTD.  v.  MANHATTAN 
INDUSTRIES,  INC.,  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied. 
Reported  below:  754  F.  2d  457. 

No.  84-1795.  TECHNOGRAPH,  INC.  v.  GENERAL  MOTORS 
CORP.  C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  749 
F.  2d  1020. 


820  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-1798.  COLLINS  v.  ANNDEP  STEAMSHIP  CORP.  C.  A. 
3d  Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  256. 

No.  84-1799.  FRENCH  u  MEAD  PAPER  CORP.,  FORMS  PAPER 
DIVISION.  C,  A.  6th  Cir.  Certiorari  denied.  Reported  below: 
758  F.  2d  652. 

No.  84-1801.  INUPIAT  COMMUNITY  OF  THE  ARCTIC  SLOPE  ET 
AL.  u  UNITED  STATES  ET  AL.  C.  A.  9th  Cir.  Certiorari  denied. 
Reported  below:  746  F.  2d  570. 

No.  84-1802.  EARL'S  PUMP  &  SUPPLY  Co.,  INC.,  ET  AL.  v. 
COLBERG,  INC.  Ct.  App.  CaL,  3d  App.  Dist.  Certiorari  denied. 
Reported  below:  162  Cal.  App.  3d  322,  208  Cal.  Rptr.  465. 

No.  84-1807.  GROCERY  MANUFACTURERS  OF  AMERICA,  INC. 
v.  GERACE,  COMMISSIONER,  NEW  YORK  DEPARTMENT  OF  AGRI- 
CULTURE AND  MARKETS,  ET  AL.  C.  A.  2d  Cir.  Certiorari 
denied.  Reported  below:  755  F.  2d  993. 

No.  84-1814.  MEADOWS  v.  NEW  YORK.  Ct.  App.  N.  Y. 
Certiorari  denied.  Reported  below:  64  N.  Y.  2d  956,  477  N.  E. 
2d  1097. 

No.  84-1816.  SMITH  v.  NEW  JERSEY.  Super.  Ct.  N.  J.,  App. 
Div.  Certiorari  denied. 

No.  84-1819.  AVONDALE  SHIPYARDS,  INC.  v.  ROSETTI.  C.  A. 
5th  Cir.  Certiorari  denied.  Reported  below:  746  F.  2d  294. 

No.  84-1822.  KERPELMAN  u  LAND  ET  AL.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  753  F.  2d  1071. 

No.  84-1823.  ADMINISTRATORS  OF  THE  TULANE  EDUCA- 
TIONAL FUND  v.  COOLEY.  Sup.  Ct.  Miss.  Certiorari  denied. 
Reported  below:  462  So.  2d  696. 

No.  84-1827.  SIMONE  v.  GOLDEN  NUGGET  HOTEL  &  CASINO, 
T/A  G.  N.  A.  C.  CORP.  C.  A.  3d  Cir.  Certiorari  denied.  Re- 
ported below:  760  F.  2d  261. 

No.  84-1828.  RADER  v.  WISCONSIN  BOARD  OF  ATTORNEYS 
PROFESSIONAL  RESPONSIBILITY.  Sup.  Ct.  Wis.  Certiorari 
denied.  Reported  below:  121  Wis.  2d  410,  359  N.  W.  2d  156. 

No.  84-1829.  ILLINOIS  COMMERCE  COMMISSION  ET  AL.  v. 
INTERSTATE  COMMERCE  COMMISSION  ET  AL.  C.  A.  D.  C.  Cir. 


ORDERS  821 

474  U.  S.  October  7,  1985 

Certiorari  denied.      Reported  below:  242  U.  S.  App.  D.  C.  197, 
749  F.  2d  875. 

No.  84-1830.  LIBERTY  NATIONAL  BANK  &  TRUST  COMPANY 
OF  LOUISVILLE,  FDBA  UNITED  KENTUCKY  BANK,  INC.  v.  GEORGE 
ET  ux.  C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  753 
F.  2d  50. 

No.  84-1831.  JONES  v.  CALIFORNIA.  Ct.  App.  Cal.,  4th  App. 
Dist.  Certiorari  denied. 

No.  84-1833.  DRAPE  u  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  753  F.  2d  660. 

No.  84-1834.  BISHOP  u  INTERNATIONAL  PAPER  Co.  ET  AL. 
Ct.  App.  Ga.  Certiorari  denied.  Reported  below:  173  Ga.  App. 
34,  325  S.  E.  2d  870. 

No.  84-1836.  DUNN  v.  MEARLS  ET  AL.  C.  A.  1st  Cir.  Cer- 
tiorari denied. 

No.  84-1840.  WOODRUM  u  SOUTHERN  RAILWAY  Co.  C.  A. 
llth  Cir.  Certiorari  denied.  Reported  below:  750  F.  2d  876. 

No.  84-1844.  BURRISS  u  NORTHERN  ASSURANCE  COMPANY 
OF  AMERICA.  Sup.  Ct.  Kan.  Certiorari  denied.  Reported 
below:  236  Kan.  326,  691  P.  2d  10. 

No.  84-1846.  THOMAS  ET  AL.  v.  ARKANSAS.  Ct.  App.  Ark. 
Certiorari  denied.  Reported  below:  14  Ark.  App.  xviii. 

No.  84-1847.  LANDES  v.  DEPARTMENT  OF  JUSTICE.  C.  A. 
D.  C.  Cir.  Certiorari  denied. 

No.  84-1848.  KOUTSOUBOS,  ADMINISTRATOR  OF  THE  ESTATE 
OF  KOUTSOUBOS  v.  BOEING  VERTOL,  DIVISION  OF  BOEING  Co., 
ET  AL.  C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  755 
F.  2d  352. 

No.  84-1849.  KEARNS  v.  UNITED  STATES.  C.  A.  Fed.  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  178. 

No.  84-1853.  TAYLOR  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  752  F.  2d  566. 

No.  84-1854.  NORTHERN  OIL  Co.,  INC.,  ET  AL.  v.  STANDARD 
OIL  COMPANY  OF  CALIFORNIA  ET  AL,  Temp.  Emerg.  Ct.  App. 
Certiorari  denied.  Reported  below:  761  F.  2d  699. 


822  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-1855.  STEINES  v.  ROCK  ISLAND  ARSENAL  DEPART- 
MENT OF  ARMY  ET  AL.  C.  A.  7th  Cir.  Certiorari  denied.  Re- 
ported below:  753  F.  2d  1078. 

No.  84-1856.  DAIRYMEN,  INC.  u  UNITED  STATES.  C.  A.  6th 
Cir.  Certiorari  denied.  Reported  below:  758  F.  2d  654. 

No.  84-1858.  LEX  TEX  LTD.  INC.  v.  J.  P.  STEVENS  &  Co., 
INC.,  ET  AL.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported 
below:  747  F.  2d  1553. 

No.  84-1861.  WIVORKOSKI  v.  PENNSYLVANIA.  Super.  Ct.  Pa. 
Certiorari  denied. 

No.  84-1866.  Di  GILIO  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  755  F.  2d  924. 

No.  84-1868.  PENNZOIL  Co.  v.  PUBLIC  SERVICE  COMMISSION 
OF  WEST  VIRGINIA.  Sup.  Ct.  App.  W.  Va.  Certiorari  denied. 
Reported  below: W.  Va.  ,  327  S.  E.  2d  444. 

No.  84-1871.  HOROWITZ  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  756  F.  2d  1400. 

No.  84-1873.  WEIDE  v.  UNITED  STATES.  C.  A.  Fed.  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  157. 

No.  84-1874.  BEEKER  ET  AL.  v.  COMMISSIONER  OF  INTERNAL 
REVENUE.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below: 
753  F.  2d  1080. 

No.  84-1876.  TRANSCO  EXPLORATION  Co.,  INC.  v.  ROWAN 
Cos.,  INC.  Ct.  App.  Tex.,  1st  Sup.  Jud.  Dist.  Certiorari 
denied.  Reported  below:  679  S.  W.  2d  660. 

No.  84-1879.  CITY  OF  SUGAR  LAND  ET  AL.  v.  SIGNAD,  INC. 
C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  753  F.  2d 
1338. 

No.  84-1883.  MCCLINTOCK  v.  UNITED  STATES.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  748  F.  2d  1278. 

No.  84-1884.  GONZALEZ-RIOS  v.  UNITED  STATES.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  720  F.  2d  685. 

No.  84-1885.  HERIER-DARCHERIEL  v.  UNITED  STATES. 
C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  762  F.  2d 
1019. 


ORDERS  823 

474  U.  S.  October  7,  1985 

No.  84-1886.  GARRETT  v.  ARKANSAS.  Ct.  App.  Ark.  Cer- 
tiorari  denied.  Reported  below:  8  Ark.  App.  xv. 

No.  84-1887.  CLOPPER  u  MERRILL  LYNCH  RELOCATION  MAN- 
AGEMENT, INC.  C.  A.  9th  Cir.  Certiorari  denied.  Reported 
below:  749  F.  2d  36. 

No.  84-1888.  MGPC,  INC.  u  DEPARTMENT  OF  ENERGY  ET  AL. 
Temp.  Emerg.  Ct.  App.  Certiorari  denied.  Reported  below: 
763  F.  2d  422. 

No.  84-1889.  MERWINE  u  BOARD  OF  TRUSTEES  FOR  STATE 
INSTITUTIONS  OF  HIGHER  LEARNING  ET  AL.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  754  F.  2d  631. 

No.  84-1890.  CARDINAL  RESOURCES,  INC.  v.  EDDIE  STEAM- 
SHIP Co.,  LTD.,  ET  AL.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  757  F.  2d  282. 

No.  84-1892.  CICIRELLO  u  NEW  YORK  TELEPHONE  Co. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  990. 

No.  84-1893.  LA-Z-BOY  CHAIR  Co.  v.  WORLD  OF  SLEEP,  INC.; 
and 

No.  85-64.  WORLD  OF  SLEEP,  INC.  v.  LA-Z-BoY  CHAIR  Co. 
ET  AL.  C.  A.  10th  Cir.  Certiorari  denied.  Reported  below:  756 
F.  2d  1467. 

No.  84-1895.  EDWARDS  ET  AL.  v.  HANNON,  JUDGE,  SUPERIOR 
COURT  OF  THE  DISTRICT  OF  COLUMBIA;  and  SOWELLS  ET  AL.  v. 
HANNON,  JUDGE,  SUPERIOR  COURT  OF  THE  DISTRICT  OF  COLUM- 
BIA. Ct.  App.  D.  C.  Certiorari  denied. 

No.  84-1896.  QUICK  ET  AL.  v.  CALIFORNIA.  Ct.  App.  Cal.,  2d 
App.  Dist.  Certiorari  denied. 

No.  84-1897.  ROLLESTON  v.  SEA  ISLAND  PROPERTIES,  INC., 
ET  AL.  Sup.  Ct.  Ga.  Certiorari  denied.  Reported  below:  254 
Ga.  183,  327  S.  E.  2d  489. 

No.  84-1900.  BROWN  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  753  F.  2d  1072. 

No.  84-1908.  ONEIDA  INDIAN  NATION  OF  WISCONSIN  v. 
HOUDENOSAUNEE  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  Re- 
ported below:  757  F.  2d  19. 


824  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-1909.  BROWN  v.  ERMAN  ET  AL.  C.  A.  6th  Cir.  Cer- 
tiorari  denied.  Reported  below:  754  F.  2d  372. 

No.  84-1910,  WILLIAMS  u  DELAWARE.  Sup.  Ct.  Del.  Cer- 
tiorari  denied.  Reported  below:  491  A.  2d  1129. 

No.  84-1911.  WHEELER  v.  MENTAL  HEALTH  AND  MENTAL 
RETARDATION  AUTHORITY  OF  HARRIS  COUNTY  ET  AL.  C.  A.  5th 
Cir.  Certiorari  denied.  Reported  below:  752  F.  2d  1063. 

No.  84-1912.  LANGENEGGER  ET  AL.  u  UNITED  STATES. 
C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below:  756  F.  2d 
1565. 

No.  84-1915.  F.  E.  L.  PUBLICATIONS,  LTD.  v.  CATHOLIC 
BISHOP  OF  CHICAGO.  C.  A.  7th  Cir.  Certiorari  denied.  Re- 
ported below:  754  F.  2d  216. 

No.  84-1916.  BOLLING  v.  BAKER.  Ct.  App.  Tex.,  4th  Sup. 
Jud.  Dist.  Certiorari  denied.  Reported  below:  671  S.  W.  2d 
559. 

No.  84-1917.  JOHNS  v.  SUPREME  COURT  OF  OHIO.  C.  A.  6th 
Cir.  Certiorari  denied.  Reported  below:  753  F.  2d  524. 

No.  84-1918.  FELT  ET  AL.  v.  FIRST  BANK  OF  SOUTH  DAKOTA. 
C.  A.  8th  Cir.  Certiorari  denied.  Reported  below:  745  F.  2d  62. 

No.  84-1920.  PFLUGER  v.  INTERNAL  REVENUE  SERVICE. 
C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  757  F.  2d 
1291. 

No.  84-1924.  CITY  OF  POMPANO  BEACH  v.  CAPALBO.  Dist. 
Ct.  App.  Fla.,  4th  Dist.  Certiorari  denied.  Reported  below:  455 
So.  2d  468. 

No.  84-1926.  REID  ET  AL.  v.  GHOLSON  ET  AL.  Sup.  Ct.  Va. 
Certiorari  denied.  Reported  below:  229  Va.  179,  327  S.  E.  2d 
107. 

No.  84-1927.  MILLER  v.  HENRY  ET  AL.  Ct.  App.  Ohio, 
Franklin  County.  Certiorari  denied. 

No.  84-1931.  HEISER  v.  HEISER.  Ct.  App.  N.  C.  Certiorari 
denied.  Reported  below:  71  N.  C.  App.  223,  321  S.  E.  2d  479. 

No.  84-1932.  SKLUT  HIDE  &  FURS  v.  PRUDENTIAL  LINES, 
INC.  C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  755 
F.  2d  923. 


ORDERS  825 

474  U.  S.  October  7,  1985 

No.  84-1934.  COPY-DATA  SYSTEMS,  INC.,  ET  AL.  v.  TOSHIBA 
AMERICA,  INC.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  755  F.  2d  293. 

No.  84-1935.  INTERNATIONAL  UNION,  UNITED  AUTOMOBILE, 
AEROSPACE  <fe  AGRICULTURAL  IMPLEMENT  WORKERS  OF  AMER- 
ICA, ET  AL.  v.  BROCK,  SECRETARY  OF  LABOR.  C.  A.  D.  C.  Cir. 
Certiorari  denied.  Reported  below:  241  U.  S.  App.  D.  C.  122, 
746  F.  2d  855. 

No.  84-1937.  SWAIM  u  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  757  F.  2d  1530. 

No.  84-1940.  Dow  v.  UNITED  VAN  LINES  ET  AL.  C.  A.  3d 
Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  256. 

No.  84-1943.  WOODS  u  TSUCHIYA.  C.  A.  Fed.  Cir.  Certio- 
rari denied.  Reported  below:  754  F.  2d  1571. 

No.  84-1946.  PORTER  u  O'FARRELL  ET  AL.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  755  F.  2d  922. 

No.  84-1949.  LAMONT,  ADMINISTRATOR  OF  THE  ESTATE  OF 
LAMONT  v.  WOLF  ET  AL.  Ct.  App.  CaL,  2d  App.  Dist.  Certio- 
rari denied. 

No.  84-1950.  HAMPTON  v.  CALIFORNIA.  Ct.  App.  CaL,  1st 
App.  Dist.  Certiorari  denied.  Reported  below:  164  CaL  App.  3d 
27,  209  CaL  Rptr.  905. 

No.  84-1951.     SOUTHLAND  CORP.  v.  UNITED  STATES;  and 
No.  84-1981.     MASTROPIERI  v.  UNITED  STATES.     C.  A.  2d  Cir. 
Certiorari  denied.      Reported  below:  760  F.  2d  1366. 

No.  84-1953.  MARCON,  LTD.  v.  HELENA  RUBINSTEIN,  INC. 
(two  cases).  C.  A.  4th  Cir.  Certiorari  denied.  Eeported  below: 
762  F.  2d  999  (second  case). 

No.  84-1954.  MANKIN  v.  OHIO.  Ct.  App.  Ohio,  Ross  County. 
Certiorari  denied. 

No.  84-1956.  D.  L.  AULD  Co.  v.  CHROMA-GRAPHICS  CORP.  ET 
AL.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below:  753 
F.  2d  1029. 

No.  84-1959.  JAMES  v.  ALABAMA  STATE  PERSONNEL  BOARD 
ET  AL.  C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  744 
F.  2d  95. 


826  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-1960.  WELCKER  v.  UNITED  STATES.  C.  A.  Fed.  Cir. 
Certiorari  denied.  Reported  below:  752  F.  2d  1577. 

No.  84-1961.  WOLF  ET  ux.  v.  RICHMOND  COUNTY  HOSPITAL 
AUTHORITY,  C.  A.  4th  Cir.  Certiorari  denied.  Reported 
below:  745  F.  2d  904. 

No.  84-1962.  JOHNSON  u  TENNESSEE  DEPARTMENT  OF  EM- 
PLOYMENT SECURITY  ET  AL.  C.  A.  6th  Cir.  Certiorari  denied. 
Reported  below:  754  F.  2d  375. 

No.  84-1963.  R.  O.  GIVENS  SIGNS,  INC.  u  TOWN  OF  NAGS 
HEAD  ET  AL.  C.  A.  4th  Cir.  Certiorari  denied.  Reported 
below:  758  F.  2d  648. 

No.  84-1964.  TERRY  v.  ALABAMA.  Ct.  Crim.  App.  Ala. 
Certiorari  denied.  Reported  below:  469  So.  2d  1359. 

No.  84-1965.  CHRISTIAN  v.  VETERANS  ADMINISTRATION. 
C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below:  765  F.  2d 
159. 

No.  84-1967.  INDEPENDENT  NEWS,  INC.,  ET  AL.  v.  BANK  OF 
OREGON  ET  AL.  Sup.  Ct.  Ore.  Certiorari  denied.  Reported 
below:  298  Ore.  434,  693  P.  2d  35. 

No.  84-1975.     CASTALDI  v.  UNITED  STATES;  and 
No.  84-1982.     TUFARO  ET  AL.  u  UNITED  STATES.     C.  A.  2d 
Cir.     Certiorari  denied.     Reported  below:  762  F.  2d  991. 

No.  84-1977.  BERKIC  v.  CRICHTON  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  1289. 

No.  84-1983.  TSAI  v.  Li  ET  ux.  Ct.  App.  D.  C.  Certiorari 
denied. 

No.  84-1984.  GROVE  ET  AL.  v.  MEAD  SCHOOL  DISTRICT 
No.  354  ET  AL.  C.  A.  9th  Cir.  Certiorari  denied.  Reported 
below:  753  F.  2d  1528. 

No.  84-1985.  CITY  OF  EUCLID,  OHIO  u  MABEL  ET  AL.  Ct. 
App.  Ohio,  Cuyahoga  County.  Certiorari  denied.  Reported 
below:  19  Ohio  App.  3d  235,  484  N.  E.  2d  249. 

No.  84-1986.  FINE  ET  AL.  v.  BELLEFONTE  UNDERWRITERS 
INSURANCE  Co.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  758  F.  2d  50. 


ORDERS  827 

474  U.  S.  October  7,  1985 

No.  84-1987.  MOORE  v.  BONNER,  SUPERINTENDENT  OF 
SCHOOLS  FOR  BERKELEY  COUNTY,  ET  AL.  C.  A.  4th  Cir.  Cer- 
tiorari  denied.  Reported  below:  758  F.  2d  648. 

No.  84-1988.  SCHUBERT  v.  RICHARDSON  SECURITIES  OF  CAN- 
ADA ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  Reported  below: 
762  F.  2d  991. 

No.  84-1989.  SHORTER,  AS  PERSONAL  REPRESENTATIVE  OF 
THE  ESTATE  OF  SHORTER  v.  DRURY  ET  ux.  Sup.  Ct.  Wash. 
Certiorari  denied.  Reported  below:  103  Wash.  2d  645,  695  P.  2d 
116. 

No.  84-1991.  FOLAK  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  828. 

No.  84-1993.  HYDE  v.  VAN  WORMER  ET  AL.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  86. 

No.  84-1994.  LONDON  v.  MANHATTAN  LIFE  CORP.  ET  AL. 
C.  A.  4th  Cir.  Certiorari  denied.  Reported  below:  758  F.  2d 
648. 

No.  84-1995.  SMITH  INTERNATIONAL,  INC.  u  HUGHES  TOOL 
Co.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below:  759 
F.  2d  1572. 

No.  84-1997.  BOBIS  u  ILLINOIS.  App.  Ct.  111.,  1st  Dist. 
Certiorari  denied.  Reported  below:  127  I1L  App.  3d  1158,  483 
N.  E.  2d  727. 

No.  84-1998.  NEW  YORK  STATE  NURSES  ASSN.  v.  ST.  JO- 
SEPH'S HOSPITAL  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  Re- 
ported below:  755  F.  2d  260. 

No.  84-2000.  NOKES  u  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  20. 

No.   84-2001.       COLLARD  ET  AL.  V.  INCORPORATED  VILLAGE  OF 

FLOWER  HILL  ET  AL.      C.  A.  2d  Cir.      Certiorari  denied.     Re- 
ported below:  759  F.  2d  205. 

No.  84-2002.  BRUNER  v.  PARKER.  Sup.  Ct.  Mo.  Certiorari 
denied.  Reported  below:  683  S.  W.  2d  265. 


828  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-2003.  ETTER  u  COMMISSIONER  OF  PATENTS  AND 
TRADEMARKS.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported 
below:  756  F.  2d  852. 

No.  84-2004.  EQUAL  EMPLOYMENT  OPPORTUNITY  COMMIS- 
SION v.  MISSOURI  STATE  HIGHWAY  PATROL  ET  AL.;  and 

No.  85-42.  PRICE  v.  WHITMER,  SUPERINTENDENT,  MISSOURI 
STATE  HIGHWAY  PATROL,  ET  AL.  C.  A.  8th  Cir.  Certiorari 
denied.  Reported  below:  748  F.  2d  447. 

No.  84-2006.  JOHNSON  ET  ux.  v.  RIGHETTI  ET  AL.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  756  F.  2d  738. 

No.  84-2007.  THOMPSON  v.  UNITED  STATES  (two  cases). 
C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  995. 

No.  84-2010.  MEADOWS  v.  ALABAMA.  Sup.  Ct.  Ala.  Certio- 
rari denied. 

No.  84-2012.  BRAND  v.  NEW  YORK.  App.  Div.,  Sup.  Ct. 
N.  Y.,  1st  Jud.  Dept.  Certiorari  denied.  Reported  below:  106 
App.  Div.  2d  260,  484  N.  E.  2d  388. 

No.  84-2014.  FLORES  v.  SOUTHERN  PACIFIC  TRANSPORTATION 
Co.  ET  AL.  Ct.  App.  Tex.,  6th  Sup.  Jud.  Dist.  Certiorari 
denied.  Reported  below:  683  S.  W.  2d  31. 

No.  84-2017.  PALMER  v.  CITY  OF  SEATTLE.  Sup.  Ct.  Wash. 
Certiorari  denied. 

No.  84-2019.  BARNEY  v.  HALPERIN,  STATE  TAX  ASSESSOR. 
Sup.  Jud.  Ct.  Me.  Certiorari  denied.  Reported  below:  490  A. 
2d  223. 

No.  84-2020.  PURSUE  ENERGY  CORP.  ET  AL.  v.  BERRY.  Sup. 
Ct.  Miss.  Certiorari  denied.  Reported  below:  463  So.  2d  1031. 

No.  84-2021.  MCGREEVY  v.  DANNON  Co.,  INC.,  ET  AL.  C.  A. 
2d  Cir.  Certiorari  denied.  Reported  below:  755  F.  2d  914. 

No.  84-2024.  SNAER  v.  TERRITORY  OF  GUAM.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  1341. 

No.  84-2025.  MONON  SHIPPERS  ASSN.,  INC.,  ET  AL.  V.  INTER- 
STATE COMMERCE  COMMISSION  ET  AL.  C.  A.  7th  Cir.  Certio- 
rari denied. 

No.  84-2029.  GASPARRO  v.  CONNECTICUT.  Sup.  Ct.  Conn. 
Certiorari  denied.  Reported  below:  194  Conn.  96,  480  A.  2d  509. 


ORDERS  829 

474  U.  S.  October  7,  1985 

No.  84-2031.  MEIRI  v.  DACON  ET  AL.  C.  A.  2d  Cir.  Certio- 
rari  denied.  Reported  below:  759  F.  2d  989. 

No.  84-2033.  HAMMOND  v.  RAPIDES  PARISH  SCHOOL  BOARD. 
C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  755  F.  2d 
171. 

No.  84-2036.  EL  SHAHAWY  v.  SARASOTA  COUNTY  PUBLIC 
HOSPITAL  BOARD.  Dist.  Ct.  App.  Fla.,  2d  Dist.  Certiorari 
denied.  Reported  below:  467  So.  2d  1006. 

No.  84-6422.  BRITT  v.  UNITED  STATES.  C.  A.  4th  Cir.  Cer- 
tiorari denied.  Reported  below:  749  F.  2d  32. 

No.  84-6427.  CARSON  u  SPANISH  LAKE  ASSN.  ET  AL.  C.  A. 
8th  Cir.  Certiorari  denied.  Reported  below:  745  F.  2d  63. 

No.  84-6444.  MCMULLEN  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  755  F.  2d  65. 

No.  84-6465.  RUTH  v.  TEXAS.  Ct.  Crim.  App.  Tex.  Certio- 
rari denied.  Reported  below:  663  S.  W.  2d  844. 

No.  84-6477.  MAULDIN  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  754  F.  2d  376. 

No.  84-6487.  HUTCHINGS  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  751  F.  2d  230. 

No.  84-6501.  MCALLISTER  v.  UNITED  STATES.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  747  F.  2d  1273. 

No.  84-6506.  BEWLEY  u  OKLAHOMA.  Ct.  Crim.  App.  Okla. 
Certiorari  denied.  Reported  below:  695  P.  2d  1357. 

No.  84-6509.  KEITH  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  754  F.  2d  1388. 

No.  84-6510.     KEMP  v.  UNITED  STATES; 
No.  84-6541.     MERIDA  v.  UNITED  STATES; 
No.  84-6561.     TOLER  v.  UNITED  STATES; 
No.  84-6585.     BARNHILL  v.  UNITED  STATES;  and 
No.   84-6592.      TAYLOR  v.   UNITED   STATES.      C.  A.   3d   Cir. 
Certiorari  denied.      Reported  below:  762  F.  2d  995. 

No.  84-6513.  DIXON  u  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  654. 

No.  84-6516.  WILLIAMS  v.  UNITED  STATES  ET  AL.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  753  F.  2d  1072. 


830  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-6517.  FLYNN  v.  SHULTZ,  SECRETARY  OF  STATE. 
C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  748  F.  2d 
1186. 

No.  84-6528.  JAMISON  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  753  F.  2d  1084. 

No.  84-6531.  PATTERSON  ET  AL.  v.  UNITED  STATES.  C.  A. 
9th  Cir.  Certiorari  denied.  Reported  below:  736  F.  2d  1299. 

No.  84-6560.  SMITH  v.  UNITED  STATES.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  774  F.  2d  1153. 

No.  84-6562.  WHITAKER  v.  NEW  YORK.  Ct.  App.  N.  Y. 
Certiorari  denied.  Reported  below:  64  N.  Y.  2d  347,  476  N.  E. 
2d  294. 

No.  84-6584.  PEPPER  v.  MISSOURI.  Ct.  App.  Mo.,  Eastern 
Dist.  Certiorari  denied.  Reported  below:  686  S.  W.  2d  53. 

No.  84-6594.  SPANN  v.  WAINWRIGHT,  SECRETARY,  FLORIDA 
DEPARTMENT  OF  CORRECTIONS.  C.  A.  llth  Cir.  Certiorari 
denied.  Reported  below:  742  F.  2d  606. 

No.  84-6598.  KNOBLAUCH  ET  ux.  v.  COMMISSIONER  OF  INTER- 
NAL REVENUE.  C.  A.  5th  Cir.  Certiorari  denied.  Reported 
below:  749  F.  2d  200  and  752  F.  2d  125. 

No.  84-6603.  IANNACCIO  v.  PENNSYLVANIA.  Sup.  Ct.  Pa. 
Certiorari  denied.  Reported  below:  505  Pa.  414,  480  A.  2d  966. 

No.  84-6604.  LOPEZ  v.  DALLAS  OFFSET,  INC.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  747  F.  2d  1463. 

No.  84-6615.  JONES  u  JONES,  SUPERINTENDENT,  GREAT 
MEADOWS  CORRECTIONAL  FACILITY.  C.  A.  2d  Cir.  Certiorari 
denied.  Reported  below:  755  F.  2d  914. 

No.  84-6659.     JARRAD  v.  UNITED  STATES;  and 
No.  85-5029.     MCMANAMY  v.  UNITED  STATES.     C.  A.  9th  Cir. 
Certiorari  denied.     Reported  below:  754  F.  2d  1451. 

No.  84-6676.  BATES  v.  KERR  ET  AL.  C.  A.  7th  Cir.  Certio- 
rari denied.  Reported  below:  753  F.  2d  1077. 

No.  84-6679.  ESTRADA  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  751  F.  2d  128. 


ORDERS  831 

474  U.  S.  October  7,  1985 

No.  84-6682.  CORLEY  v.  HERMAN,  CLERK,  DISTRICT  OF  CO- 
LUMBIA COURT  OF  APPEALS,  ET  AL.  C.  A.  D.  C.  Cir.  Certio- 
rari  denied. 

No.  84-6691.  WILSON  v.  RAYL,  DIRECTOR,  EL  DORADO 
HONOR  CAMP,  ET  AL.  C.  A.  10th  Cir.  Certiorari  denied. 

No.  84-6697.  WIGGINS  v.  NEW  MEXICO.  Sup.  Ct.  N.  M. 
Certiorari  denied. 

No.  84-6702.     HARVEY  v.  UNITED  STATES;  and 
No.   84-6835.      CLARK  u   UNITED  STATES.      C.  A.  8th  Cir. 
Certiorari  denied.     Reported  below:  756  F.  2d  636. 

No.  84-6703.  BRANTNER  v.  WICKER,  ACTING  SUPERINTEND- 
ENT OF  PRISONS,  ET  AL.  C.  A.  3d  Cir.  Certiorari  denied.  Re- 
ported below:  760  F.  2d  255. 

No.  84-6704.  CUNNINGHAM  v.  SHAFER.  Sup.  Ct.  Nev.  Cer- 
tiorari denied.  Reported  below:  101  Nev.  947. 

No.  84-6707.  HUMPHRIES  v.  CHESAPEAKE  CITY  POLICE  DE- 
PARTMENT ET  AL.  C.  A.  4th  Cir.  Certiorari  denied.  Reported 
below:  746  F.  2d  1471. 

No.  84-6708.  BLOCKER  v.  FETHERSTON.  Sup.  Ct.  Mich. 
Certiorari  denied.  Reported  below:  419  Mich.  961. 

No.  84-6711.  KORB  v.  PENNSYLVANIA.  Super.  Ct.  Pa.  Cer- 
tiorari denied.  Reported  below:  332  Pa.  Super.  642,  481  A.  2d 
1374. 

No.  84-6712.  LEROY  v.  MORRIS,  SUPERINTENDENT,  SOUTH- 
ERN OHIO  CORRECTIONAL  FACILITY.  C.  A.  6th  Cir.  Certiorari 
denied.  Reported  below:  757  F.  2d  94. 

No.  84-6718.  JEFFERSON  v.  MERCER,  CLERK,  UNITED  STATES 
COURT  OF  APPEALS  FOR  THE  ELEVENTH  CIRCUIT,  ET  AL.  C.  A. 
llth  Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  696. 

No.  84-6719.  GONZALEZ  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  757  F.  2d  866. 

No.  84-6720.  CUNNINGHAM  v.  CITY  OF  LAS  VEGAS.  Sup.  Ct. 
Nev.  Certiorari  denied.  Reported  below:  100  Nev.  806. 

No.  84-6724.  PANDO  v.  UNITED  STATES.  C.  A.  2d  Cir.  Cer- 
tiorari denied. 


832  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-6730.  BASKERVILLE  v.  BAKER,  WARDEN,  ET  AL. 
Sup.  Ct.  Va.  Certiorari  denied. 

No.  84-6734.     SOTO  ET  AL.  v.  UNITED  STATES; 
No.  84-6739.     CONTRERAS  v.  UNITED  STATES;  and 
No.   84-6751.      GARCIA  v.   UNITED  STATES.      C.  A.   9th  Cir. 
Certiorari  denied.     Reported  below:  755  F.  2d  733. 

No.  84-6735.  HERNANDEZ  v.  MCCOTTER,  DIRECTOR,  TEXAS 
DEPARTMENT  OP  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari 
denied.  Reported  below:  755  F.  2d  171. 

No.  84-6737.  FRITZ  v.  MARSH,  SECRETARY  OF  THE  ARMY, 
ET  AL.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  730 
F.  2d  765. 

No.  84-6741.  KOSYLA  v.  ILLINOIS.  App.  Ct.  111.,  2d  Dist. 
Certiorari  denied.  Reported  below:  129  111.  App.  3d  685,  472 
N.  E.  2d  1207. 

No.  84-6743.  DAVID  u  AMERICAN  TELEPHONE  &  TELEGRAPH 
Co.  ET  AL.  C.  A.  llth  Cir.  Certiorari  denied. 

No.  84-6745.  VELILLA  u  UTC/HAMILTON  STANDARD  DIVI- 
SION, LIBERTY  MUTUAL  INSURANCE  Co.,  ET  AL.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  751  F.  2d  373. 

No.  84-6749.  WILLIAMS  v.  LOCKHART,  DIRECTOR,  ARKANSAS 
DEPARTMENT  OF  CORRECTION.  C.  A.  8th  Cir.  Certiorari 
denied. 

No.  84-6750.  BUTLER  v.  FEDERAL  COMMUNICATIONS  COMMIS- 
SION. C.  A.  D.  C.  Cir.  Certiorari  denied. 

No.  84-6752.  DENNIS  v.  UNITED  STATES  ET  AL.  C.  A.  3d 
Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  992. 

No.  84-6754.  CODER  v.  FULCOMER,  SUPERINTENDENT,  STATE 
CORRECTIONAL  INSTITUTION  AT  HUNTINGDON,  ET  AL.  C.  A.  3d 
Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  256. 

No.  84-6757.  ALEEM  v.  SPIGNER  ET  AL.  .  Ct.  App.  Cal.,  2d 
App.  Dist.  Certiorari  denied. 

No.  84-6758.  ALEEM  v.  MUNICIPAL  COURT  OF  CALIFORNIA, 
Los  ANGELES  COUNTY,  ET  AL.  Ct.  App.  Cal.,  2d  App.  Dist. 
Certiorari  denied. 


ORDERS  833 

474  U.  S.  October  7,  1985 

No.  84-6761.  MANZUR  u  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS,  ET  AL.  C.  A.  5th  Cir.  Certiorari 
denied. 

No.  84-6764.  RICHARDS  v.  DEPARTMENT  OF  THE  NAVY. 
C.  A.  Fed.  Cir.  Certiorari  denied. 

No.  84-6765.  NEWMAN  v.  BAKKO.  C.  A.  7th  Cir.  Certiorari 
denied. 

No.  84-6767.  CHAMBERS  u  ARMSTRONG  BLUM  MFG.  Co. 
C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  757  F.  2d 
1292. 

No.  84-6768.  ZLOMKE  u  FLYING  TIGER  LINE,  INC.,  ET  AL. 
C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below:  758  F.  2d 
661. 

No.  84-6772.  DOLPHIN  v.  CONNECTICUT.  Sup.  Ct.  Conn. 
Certiorari  denied.  Reported  below:  195  Conn.  444,  488  A.  2d 
812. 

No.  84-6773.  GAMEZ  v.  TEXAS.  Ct.  Crim.  App.  Tex.  Cer- 
tiorari denied. 

No.  84-6774.  CHOU  v.  CAPITAL  CIGAR  &  TOBACCO  Co.,  INC. 
C.  A.  4th  Cir.  Certiorari  denied.  Reported  below:  758  F.  2d 
646. 

No.  84-6775.  CODY  v.  SOLEM,  WARDEN,  ET  AL.  C.  A.  8th 
Cir.  Certiorari  denied.  Reported  below:  755  F.  2d  1323. 

No.  84-6776.  LEE  v.  HENDERSON,  SUPERINTENDENT,  AU- 
BURN CORRECTIONAL  FACILITY.  C.  A.  2d  Cir.  Certiorari 
denied.  Reported  below:  762  F.  2d  990. 

No.  84-6779.  INGE  u  SIELAFF,  DIRECTOR,  VIRGINIA  DEPART- 
MENT OF  CORRECTIONS.  C.  A.  4th  Cir.  Certiorari  denied.  Re- 
ported below:  758  F.  2d  1010. 

No.  84-6785.  STRADER  v.  KEITH  ET  AL.  C.  A.  4th  Cir.  Cer- 
tiorari denied.  Reported  below:  755  F.  2d  930. 

No.  84-6787.  YOUNG  v.  ILLINOIS.  App.  Ct.  111.,  3d  Dist. 
Certiorari  denied.  Reported  below:  130  111.  App.  3d  117,  473 
N.  E.  2d  974. 


834  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-6788.  MARTIN  u  LITTLE,  BROWN  &  Co.  ET  AL.  C.  A. 
D.  C.  Cir.  Certiorari  denied. 

No.  84-6789.  RATNER  u  SUPERIOR  COURT  OF  CALIFORNIA, 
COUNTY  OF  SAN  BERNARDINO,  ET  AL.  Ct.  App.  CaL,  4th  App. 
Dist.  Certiorari  denied. 

No.  84-6793.  HANSEN  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  755  F.  2d  629. 

No.  84-6794.  GLICK  v.  LocKHART,  DIRECTOR,  ARKANSAS  DE- 
PARTMENT OF  CORRECTION.  C.  A.  8th  Cir.  Certiorari  denied. 
Reported  below:  754  F.  2d  378. 

No.  84-6795.  STRADER  v.  ALLSBROOK,  SUPERINTENDENT, 
ODOM  CORRECTIONAL  COMPLEX,  ET  AL.  C.  A.  4th  Cir.  Cer- 
tiorari denied.  Reported  below:  758  F.  2d  649. 

No.  84-6797.  BIXLER  v.  INDIANA.  Sup.  Ct.  Ind.  Certiorari 
denied.  Reported  below:  471  N.  E.  2d  1093. 

No.  84-6799.  CARRIGAN  v.  LASHLEY.  C.  A.  D.  C.  Cir.  Cer- 
tiorari denied.  Reported  below:  245  U.  S.  App.  D.  C.  Cir.  233, 
759  F.  2d  959. 

No.  84-6801.  DARWIN  v.  UNITED  STATES  ET  AL.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  753  F.  2d  1086. 

No.  84-6802.  ALLEN  v.  MERIT  SYSTEMS  PROTECTION  BOARD. 
C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below:  765  F.  2d 
161. 

No.  84-6803.  DARR  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  752  F.  2d  595. 

No.  84-6804.  BoGGiNS  u  UNITED  STATES.  C.  A.  D.  C.  Cir. 
Certiorari  denied.  Reported  below:  243  U.  S.  App.  D.  C.  17,  750 
F.  2d  1093. 

No.  84-6805.  HUBBARD  ET  AL.  v.  WHITE  ET  AL.  C.  A.  8th 
Cir.  Certiorari  denied.  Reported  below:  755  F.  2d  692. 

No.  84-6806.  GORMONG  u  LOCAL  613,  INTERNATIONAL 
BROTHERHOOD  OF  ELECTRICAL  WORKERS,  ET  AL.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  755  F.  2d  174. 

No.  84-6809.  REEVES  u  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  752  F.  2d  995. 


ORDERS  835 

474  U.  S.  October  7,  1985 

No.  84-6810.  WHIDDON  u  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  752  F.  2d  648. 

No.  84-6812.  ROACH  u  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  745  F.  2d  1252. 

No.  84-6813.  SHEPPARD  ET  TJX.  u  ERMAN  ET  AL.  C.  A.  6th 
Cir.  Certiorari  denied.  Reported  below:  754  F.  2d  375. 

No.  84-6815.  BRODIS  v.  DETROIT  PUBLIC  SCHOOL  ADMINIS- 
TRATORS ET  AL.  Sup.  Ct.  Mich.  Certiorari  denied.  Reported 
below:  419  Mich.  939. 

No.  84-6816.  LIKAKUR  u  KING  COUNTY  SUPERIOR  COURT 
ET  AL.  Sup.  Ct.  Wash.  Certiorari  denied. 

No.  84-6818.  COOMBS  v.  McGARRY  ET  AL.  C.  A.  3d  Cir. 
Certiorari  denied. 

No.  84-6819.  ARNOLD  v.  REAGAN,  PRESIDENT  OF  THE 
UNITED  STATES,  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  denied. 

No.  84-6820.  KANE  v.  EDWARDS,  WARDEN,  ET  AL.  C.  A.  6th 
Cir.  Certiorari  denied.  Reported  below:  758  F.  2d  653. 

No.  84-6824.  SPAN  u  DELAINE.  C.  A.  llth  Cir.  Certiorari 
denied. 

No.  84-6827.  Ross  v.  MAYFIELD,  SUPERINTENDENT,  FULTON 
STATE  HOSPITAL.  C.  A.  8th  Cir.  Certiorari  denied. 

No.  84-6829.  MOSES  v.  MARATHON  OIL  Co.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  749  F.  2d  262. 

No.  84-6830.  COLSON  v.  BOARD  OF  REGENTS  ET  AL.  C.  A. 
7th  Cir.  Certiorari  denied.  Reported  below:  757  F.  2d  1292. 

No.  84-6834.  CANTONE  v.  SCULLY,  SUPERINTENDENT,  NEW 
YORK  CORRECTIONAL  FACILITY  AT  GREEN  HAVEN,  ET  AL. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  759  F.  2d 
207. 

No.  84-6836.  ADAMS  v.  GRAHAM  ET  AL.  C.  A.  9th  Cir.  Cer- 
tiorari denied.  Reported  below:  758  F.  2d  655. 

No.  84-6837.  HARROD  v.  CITY  OF  LINCOLN,  NEBRASKA,  ET 
AL.  C.  A.  8th  Cir.  Certiorari  denied. 


136  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-6839.  HEREDIA-FERNANDEZ  v.  UNITED  STATES. 
U.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  756  F.  2d 
.412. 

No.  84-6840.  SEATON  v.  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
>ARTMENT  OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 
Reported  below:  750  F.  2d  366. 

No.  84-6844.  WILLIAMS  v.  ILLINOIS.  Sup.  Ct.  111.  Certiorari 
ienied. 

No.  84-6847.  CARTER  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  658. 

No.  84-6849.  DARWIN  v.  UNITED  STATES  ET  AL.  C.  A.  llth 
Dir.  Certiorari  denied.  Reported  below:  757  F.  2d  285. 

No.  84-6850.  HOLLOW  AY  v.  LOCKHART,  DIRECTOR,  ARKANSAS 
DEPARTMENT  or  CORRECTION,  ET  AL.  C.  A.  8th  Cir.  Certio- 
-ari  denied.  Reported  below:  754  F.  2d  252. 

No.  84-6851.  BETKA  u  CITY  OF  WEST  LINN  ET  AL.  C.  A. 
tth  Cir.  Certiorari  denied. 

No.  84-6853.  BONDI  v.  ILLINOIS.  App.  Ct.  111.,  5th  Dist. 
Uertiorari  denied.  Reported  below:  130  111.  App.  3d  536,  474 
ST.  E.  2d  733. 

No.  84-6855.  REED  u  UNITED  STATES.  C.  A.  8th  Cir.  Cer- 
:iorari  denied.  Reported  below:  756  F.  2d  654. 

No.  84-6857.  REED  v.  UNITED  STATES  ET  AL.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  757  F.  2d  1292. 

No.  84-6858.  SIMS  v.  BABCOCK  &  WILCOX  Co.  ET  AL.  C.  A. 
Llth  Cir.  Certiorari  denied.  Reported  below:  753  F.  2d  1570. 

No.  84-6860.  IN  RE  WALKER.  Sup.  Ct.  Cal.  Certiorari 
denied. 

No.  84-6862.  BROWN  v.  LEAVTTT,  SHERIFF,  ET  AL.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  753  F.  2d  1070. 

No.  84-6863.  HORNE  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  755  F.  2d  691. 

No.  84-6867.  HASSAIN  v.  NEWBLATT,  JUDGE,  ET  AL.  C.  A. 
6th  Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  1007. 


ORDERS  837 

474  U.  S.  October  7,  1985 

No.  84-6868.  VALENTINO  u  SUPERIOR  COURT  OF  THE 
COUNTY  OF  CONTRA  COSTA.  Ct.  App.  Cal.,  1st  App.  Dist.  Cer- 
tiorari  denied. 

No.  84-6869.  MERRILL  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  84-6870.  CORLEY  u  MEESE,  ATTORNEY  GENERAL  OF  THE 
UNITED  STATES,  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  denied. 
Reported  below:  245  U.  S.  App.  D.  C.  Cir.  233,  759  F.  2d  959. 

No.  84-6871.  JONES  u  UNITED  STATES.  C.  A.  8th  Cir.  Cer- 
tiorari denied.  Reported  below:  759  F.  2d  633. 

No.  84-6874.  TILLIS  u  DAVIS,  WARDEN,  ET  AL.  C.  A.  llth 
Cir.  Certiorari  denied. 

No.  84-6875.  WADE  v.  FRONTIER  PROPERTIES,  INC.,  ET  AL. 
C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  756  F.  2d 
880. 

No.  84-6876.  GRIFFITH  ET  AL.  v.  UNITED  STATES.  C.  A.  6th 
Cir.  Certiorari  denied.  Reported  below:  756  F.  2d  1244. 

No.  84-6877.  BOWERS  v.  WISCONSIN.  Ct.  App.  Wis.  Certio- 
rari denied.  Reported  below:  123  Wis.  2d  541,  367  N.  W.  2d  243. 

No.  84-6878.  JENNELL  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  749  F.  2d  1302. 

No.  84-6880.  BUNKER  u  CALIFORNIA.  Ct.  App.  Cal.,  3d 
App.  Dist.  Certiorari  denied. 

No.  84-6882.  CLEMMONS  u  ALABAMA.  Ct.  Crim.  App.  Ala. 
Certiorari  denied.  Reported  below:  469  So.  2d  1324. 

No.  84-6883.  GREER  v.  BLACK,  WARDEN.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  327. 

No.  84-6885.  UNANGST  u  PENNSYLVANIA.  Super.  Ct.  Pa. 
Certiorari  denied.  Reported  below:  333  Pa.  Super.  633,  482  A. 
2d  670. 

No.  84-6886.  MORLAN  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  756  F.  2d  1442. 

No.  84-6887.  RADOGNA  v.  PENNSYLVANIA.  Super.  Ct.  Pa. 
Certiorari  denied.  Reported  below:  333  Pa.  Super.  632,  482  A. 
2d  669. 


838  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-6889.  OWENS  u  FREEMAN,  SUPERINTENDENT,  PENN- 
SYLVANIA CORRECTIONAL  INSTITUTION  AT  CAMP  HILL,  ET  AL. 
C.  A.  3d  Cir.  Certiorari  denied. 

No.  84-6890.  JACKSON  v.  OKLAHOMA  ET  AL.  Sup.  Ct.  Okla. 
Certiorari  denied.  Reported  below:  699  P.  2d  1094. 

No.  84-6891.  DIAL  ET  AL.  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  757  F.  2d  163. 

No.  84-6893.  WILLIAMS  v.  KIMMELMAN,  ATTORNEY  GENERAL 
OF  NEW  JERSEY,  ET  AL.  C.  A.  3d  Cir.  Certiorari  denied. 

No.  84-6896.  FISHER  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1012. 

No.  84-6897.  VINCENT  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  379. 

No.  84-6898.  MOCK  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  84-6900.  HOBBS  v.  BLACKBURN,  WARDEN.  C.  A.  5th 
Cir.  Certiorari  denied.  Reported  below:  752  F.  2d  1079. 

No.  84-6901.  BOWRING  v.  MILLS  ET  AL.  C.  A.  4th  Cir.  Cer- 
tiorari denied.  Reported  below:  758  F.  2d  645. 

No.  84-6902.  ZELTNER  v.  FAUVER,  COMMISSIONER,  NEW 
JERSEY  DEPARTMENT  OF  CORRECTIONS,  ET  AL.  C.  A.  3d  Cir. 
Certiorari  denied. 

No.  84-6904.  WILLIAMS  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  20. 

No.  84-6906.  MORENO-SEVANO  u  UNITED  STATES.  C.  A. 
llth  Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  696. 

No.  84-6908.  DARWIN  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied. 

No.  84-6909.  SMITH  v.  DEROBERTIS,  WARDEN,  ET  AL.  C.  A. 
7th  Cir.  Certiorari  denied.  Reported  below:  758  F.  2d  1151. 

No.  84-6912.  SIMONS  v.  DIETZ  ET  AL.  C.  A.  4th  Cir.  Cer- 
tiorari denied.  Reported  below:  765  F.  2d  139. 

No.  84-6915.  KIRK  v.  REES,  WARDEN.  C.  A.  6th  Cir.  Cer- 
tiorari denied.  Reported  below:  745  F.  2d  57. 


ORDERS  839 

474  U.  S.  October  7,  1985 

No.  84-6916.  RAGIN  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  696. 

No.  84-6917.  MCALLISTER  v.  UNITED  STATES.  C.  A.  5th 
Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  693. 

No.  84-6920.  BAKER  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  270. 

No.  84-6922.  CAWLEY  u  BOARD  OF  REGENTS  OF  THE  UNI- 
VERSITY OF  MICHIGAN  ET  AL.  C.  A.  6th  Cir.  Certiorari  denied. 
Reported  below:  755  F.  2d  931. 

No.  84-6924.  DELBRIDGE  u  DAVIS,  WARDEN.  C.  A.  6th  Cir. 
Certiorari  denied. 

No.  84-6925.  HEARRON  u  KANSAS.  Ct.  App.  Kan.  Certio- 
rari denied.  Reported  below:  10  Kan.  App.  2d  229,  696  P.  2d  418. 

No.  84-6926.  HART  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  757  F.  2d  285. 

No.  84-6927.  ANDINO  v.  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS.  Ct.  Crim.  App.  Tex.  Certiorari 
denied. 

No.  84-6928.  KADOTA  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  757  F.  2d  198. 

No.  84-6929.  OWENS  v.  LUTHER,  WARDEN,  ET  AL.  C.  A.  2d 
Cir.  Certiorari  denied. 

No.  84-6930.  OLINGER  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  1293. 

No.  84-6933.  MITCHELL  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied. 

No.  84-6934.  HACKLE Y  ET  AL.  v.  UNITED  STATES.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  1000. 

No.  84-6936.  HAWKINS  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1000. 

No.  84-6937.  TAMAYO  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  277. 


840  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-6939.  BLAIR,  DBA  BLAIRCO,  INC.  u  CHAFIN,  DBA 
H.  TRUMAN  CHAFIN  LEGAL  CORP.  C.  A.  4th  Cir.  Certiorari 
denied.  Reported  below:  755  F.  2d  926. 

No.  84-6942.    TRAVIS  u  UNITED  STATES;  and 
No.  85-5111.     TRAVIS  v.  UNITED  STATES.      C.  A.   9th  Cir. 
Certiorari  denied.     Reported  below:  758  F.  2d  657. 

No.  84-6943.  MAZAK  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  84-6944.  RANDALL  v.  KELLEHER,  JUDGE,  UNITED 
STATES  DISTRICT  COURT  FOR  THE  CENTRAL  DISTRICT  OF  CALI- 
FORNIA. C.  A.  9th  Cir.  Certiorari  denied. 

No.  84-6945.  HUNT  u  OHIO.  Ct.  App.  Ohio,  Cuyahoga 
County.  Certiorari  denied.  Reported  below:  22  Ohio  App.  3d 
43,  488  N.  E.  2d  901. 

No.  84-6947.  CLARK  u  BYRON  JACKSON  PUMP  Co.  ET  AL. 
C.  A.  10th  Cir.  Certiorari  denied. 

No.  84-6948.  FIGUEROA  u  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  757  F.  2d  466. 

No.  84-6950.  DUCHER  v.  UNITED  STATES.  C.  A.  D.  C.  Cir. 
Certiorari  denied.  Reported  below:  245  U.  S.  App.  D.  C.  234, 
759  F.  2d  960. 

No.  84-6951.  BROWN  u  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1012. 

No.  84-6954.  CAMPBELL  v.  OHIO  DEPARTMENT  OF  JUSTICE 
ET  AL.  C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  762 
F.  2d  1006. 

No.  84-6955.  DAVENPORT  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  147. 

No.  84-6956.  ADAMS  v.  LYKES  BROTHERS  STEAMSHIP  Co. 
ET  AL.  C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  760 
F.  2d  267. 

No.  84-6957.  AUGUSTYNIAK  u  KOCH,  MAYOR  OF  THE  CITY  OF 
NEW  YORK,  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  794  F.  2d  676. 

No.  84-6958.  ROBINSON  v.  COOKE,  WARDEN,  ET  AL.  C.  A. 
llth  Cir.  Certiorari  denied. 


ORDERS  841 

474  U.  S.  October  7,  1985 

No.  84-6963.  HOOSMAN  v.  ARIZONA.  Sup.  Ct.  Ariz.  Certio- 
rari  denied. 

No.  84-6964.  GUTHRIE  u  HOLLAND,  WARDEN.  Sup.  Ct. 
App.  W.  Va.  Certiorari  denied. 

No.  84-6965.  CHATMAN  v.  MARQUEZ  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  754  F.  2d  1531. 

No.  84-6966.  GRISSO  v.  LOCKHART,  DIRECTOR,  ARKANSAS 
DEPARTMENT  OF  CORRECTION.  C.  A.  8th  Cir.  Certiorari 
denied. 

No.  84-6967.  BARALDINI  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  843. 

No.  84-6968.  ACCORDING  v.  BOARD  OF  REVIEW,  OHIO  BU- 
REAU OF  EMPLOYMENT  SERVICES,  ET  AL.  Ct.  App.  Ohio,  Trum- 
bull  County.  Certiorari  denied. 

No.  84-6969.  BARTON  v.  CALIFORNIA.  Ct.  App.  Cal.,  3d 
App.  Dist.  Certiorari  denied. 

No.  84-6973.  ODINGA  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  843. 

No.  84-6976.  BRAY  v.  BEARDEN  ET  AL.  C.  A.  llth  Cir. 
Certiorari  denied. 

No.  84-6977.  GREER  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1012. 

No.  84-6978.  GILBERT  v.  CALIFORNIA  STATE  PERSONNEL 
BOARD  ET  AL.  Ct.  App.  Cal.,  3d  App.  Dist.  Certiorari  denied. 

No.  84-6979.  CRAIG  v.  TUSCALOOSA  NEWS,  INC.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  758  F.  2d  659. 

No.  84-6984.  LIGHTSEY  v.  OKLAHOMA.  Ct.  Grim.  App.  Okla. 
Certiorari  denied. 

No.  84-6985.  CASTANEDA  v.  CHRISTENSEN,  WARDEN.  C.  A. 
9th  Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  274. 

No.  84-6987,  RASULLAH,  AKA  BARNES  v.  HENDERSON,  SU- 
PERINTENDENT, AUBURN  CORRECTIONAL  FACILITY.  C.  A.  2d 
Cir.  Certiorari  denied.  Reported  below:  765  F.  2d  136. 


842  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-6988.  McGiFFEN  u  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  368. 

No.  84-6989.  ORNSBEY,  A  MINOR,  BY  HIS  GUARDIAN  AD 
LITEM,  ORNSBEY,  ET  AL.  v.  CITY  OF  TULARE  ET  AL.  Ct.  App. 
Cal.,  5th  App.  Dist.  Certiorari  denied. 

No.  84-6990.  CARRION  v.  NEW  YORK  CITY  HEALTH  AND  HOS- 
PITALS CORP.  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  Re- 
ported below:  751  F.  2d  370. 

No.  84-6991.  HARRIS  v.  KENTUCKY.  Ct.  App.  Ky.  Certio- 
rari denied.  Reported  below:  688  S.  W.  2d  338. 

No.  84-6992,  HUNTER  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1000. 

No.  84-6995.  ROBINSON  v.  ENGLE,  DEPUTY  DIRECTOR,  COR- 
RECTIONAL PROGRAMS,  ET  AL.  C.  A.  6th  Cir.  Certiorari  de- 
nied. Reported  below:  762  F.  2d  1011. 

No.  84-6996.  OWENS  v.  BAER.  C.  A.  2d  Cir.  Certiorari 
denied. 

No.  84-6998.  THOMAS  u  MISSOURI.  Ct.  App.  Mo.,  Southern 
Dist.  Certiorari  denied.  Reported  below:  664  S.  W.  2d  56. 

No.  84-6999.  REED  v.  OREGON  WORKERS'  COMPENSATION 
BOARD  ET  AL.  Sup.  Ct.  Ore.  Certiorari  denied.  Reported 
below:  298  Ore.  597,  695  P.  2d  50. 

No.  84-7001.  HAYES  ET  AL.  v.  UNITED  STATES.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  763  F.  2d  368. 

No.  84-7004.  TATE  v.  COOKE,  WARDEN.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  755  F.  2d  174. 

No.  84-7007.  BROWN  v.  UNITED  STATES.  C.  A.  Fed.  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  182. 

No.  85-2.  ALLEN  v.  PENNSYLVANIA.  Sup.  Ct.  Pa.  Certio- 
rari denied.  Reported  below:  506  Pa.  500,  486  A.  2d  363. 

No.    85-6.       ZUCKER   ET   AL.    V.    UNITED   STATES.        C.  A.    Fed. 

Cir.     Certiorari  denied.     Reported  below:  758  F.  2d  637. 

No.  85-7.  NAPOLITANO  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  135. 


ORDERS  843 

474  U.  S.  October  7,  1985 

No.  85-9.  TEXAS  v.  UNITED  STATES  ET  AL.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  756  F,  2d  419. 

No.  85-11.  RAPHAN  ET  AL.  v.  UNITED  STATES.  C.  A.  Fed. 
Cir.  Certiorari  denied.  Reported  below:  759  F.  2d  879. 

No.  85-13.  Lucci  v.  UNITED  STATES.  C.  A.  6th  Cir.  Cer- 
tiorari denied.  Reported  below:  758  F.  2d  153. 

No.  85-14.  THOMAS  v.  GENERAL  SERVICES  ADMINISTRATION. 
C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below:  756  F.  2d 
86. 

No.  85-15.  BOGARD  v.  KENTUCKY.  Ct,  App.  Ky.  Certiorari 
denied.  Reported  below:  687  S.  W.  2d  533. 

No.  85-16.  EDWARDS  ET  AL.  v.  WILKES-BARRE  PUBLISHING 
Co.  PENSION  TRUST  ET  AL.  C.  A.  3d  Cir.  Certiorari  denied. 
Reported  below:  757  F.  2d  52. 

No.  85-20.  MORGAN  ADHESIVES  Co.  v.  CHEMTROL  ADHE- 
SIVES,  INC.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported 
below:  765  F.  2d  158. 

No.  85-22.  PIGGY  BANK  STATIONS,  INC.  v.  COMMISSIONER  OF 
INTERNAL  REVENUE.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  755  F.  2d  450. 

No.  85-25.  MORGAN  v.  FIRESTONE  TIRE  &  RUBBER  Co. 
C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  756  F.  2d 
884. 

No.  85-26.  ROL  MFG.  Co.  ET  AL.  v.  NICKSON  INDUSTRIES, 
INC.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below:  765 
F.  2d  160. 

No.  85-28.  REDCO  CORP.  v.  CBS,  INC.,  ET  AL.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  970. 

No.  85-29.  EWP  CORP.  ET  AL.  v.  RELIANCE  UNIVERSAL, 
INC.,  ET  AL.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported 
below:  755  F.  2d  898. 

No.  85-30.  TIERNEY  v.  UNITED  STATES.  C.  A.  1st  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  382. 


844  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  85-32.  C  &  C  METAL  PRODUCTS  CORP.  ET  AL.  u  DEFI- 
ANCE BUTTON  MACHINE  Co.  C.  A.  2d  Cir.  Certiorari  denied. 
Reported  below:  759  F.  2d  1053. 

No.  85-33.  HEWITT,  PERSONAL  REPRESENTATIVE  OF  THE  ES- 
TATE OF  HEWITT,  ET  AL.  v.  CITY  OF  TRUTH  OR  CONSEQUENCES 
ET  AL.  C.  A.  10th  Cir.  Certiorari  denied.  Reported  below:  758 
F.  2d  1375. 

No.  85-36.  CEASAR  v.  MERRILL  LYNCH  &  Co.,  INC.,  ET  AL. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  765  F.  2d  135. 

No.  85-38.  MEACHUM  v.  WORTHEN  BANK  &  TRUST  Co., 
N.  A.  Ct.  App.  Ark.  Certiorari  denied.  Reported  below:  13 
Ark.  App.  229,  682  S.  W.  2d  763. 

No.  85-39.  WILLIAMS  v.  ARKANSAS.  Ct.  App.  Ark.  Certio- 
rari denied.  Reported  below:  14  Ark.  App.  32,  684  S.  W.  2d  821. 

No.  85-40.  MASSACHUSETTS  HOSPITAL  SCHOOL  ET  AL.  v. 
STOCK,  BY  AND  THROUGH  HIS  FATHER  AND  NEXT  FRIEND, 
STOCK.  Sup.  Jud.  Ct.  Mass.  Certiorari  denied.  Reported 
below:  392  Mass.  205,  467  N.  E.  2d  448,  and  394  Mass.  437,  476 
N.  E.  2d  210. 

No.  85-41.  WESTIN,  INC.  u  BLC  INSURANCE  Co.  Ct.  App. 
Minn.  Certiorari  denied.  Reported  below:  359  N.  W.  2d  752. 

No.  85-45.  SANDERS  v.  MISSISSIPPI  STATE  BAR  ASSN.  Sup. 
Ct.  Miss.  Certiorari  denied.  Reported  below:  466  So.  2d  891. 

No.  85-48.  SUAREZ  v.  HECKLER,  SECRETARY  OF  HEALTH  AND 
HUMAN  SERVICES.  C.  A.  1st  Cir.  Certiorari  denied.  Reported 
below:  755  F.  2d  1. 

No.  85-49.  PACELLA  v.  MILFORD  RADIO  CORP.,  DBA  RADIO 
STATION  WMRC,  ET  AL.  Sup.  Jud.  Ct.  Mass.  Certiorari 
denied.  Reported  below:  394  Mass.  1051,  476  N.  E.  2d  595. 

No.  85-60.  WEST  GULF  MARITIME  ASSN.  ET  AL.  v.  INTER- 
NATIONAL LONGSHOREMEN'S  ASSN.,  AFL-CIO.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  135. 

No.  85-61.  MCFARLAND  v.  BETHLEHEM  STEEL  CORP.  ET  AL. 
C.  A.  9th  Cir.  Certiorari  denied. 


ORDERS  845 

474  U.  S.  October  7,  1985 

No.  85-63.  BRADY  v.  PETTIT,  FORMER  MAYOR  OF  LEXING- 
TON-FAYETTE  URBAN  COUNTY  GOVERNMENT,  ET  AL.  C.  A.  6th 
Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  1006. 

No.  85-68.       GOTTSCHALL  ET  AL.  V.  JONES  &  LAUGHUN  STEEL 

CORP.   ET  AL.      Super.   Ct.   Pa.      Certiorari  denied.      Reported 
below:  333  Pa.  Super.  493,  482  A.  2d  979. 

No.  85-70.  SARRACEN  v.  APPLEBY  ET  AL.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  271. 

No.  85-73.  FREEDOM  SAVINGS  &  LOAN  ASSN.  v.  WAY,  DBA 
FREEDOM  REALTY.  C.  A.  llth  Cir.  Certiorari  denied.  Re- 
ported below:  757  F.  2d  1176. 

No.  85-74.  GRIFFIN  v.  RHODE  ISLAND  ET  AL.  C.  A.  1st  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  359. 

No.  85-75.  TENNECO  WEST,  INC.  v.  MARATHON  OIL  Co. 
C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  756  F.  2d 
769. 

No.  85-77.  RASKIEWICZ  v.  TOWN  OF  NEW  BOSTON  ET  AL. 
C.  A.  1st  Cir.  Certiorari  denied.  Reported  below:  754  F.  2d  38. 

No.  85-80.  CUMBERLAND,  MARYLAND,  AREA  TEAMSTERS 
PENSION  FUND  ET  AL.  v.  HOOVER  ET  AL.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  756  F.  2d  977. 

No.  85-83.  ZERMAN  v.  MELTON  ET  AL.;  ZERMAN  v.  PRUDEN- 
TIAL-BACHE  SECURITIES  ET  AL.;  and  ZERMAN  v.  JACOBS  ET  AL. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  735  F.  2d  751 
(first  case);  755  F.  2d  915  (second  case);  751  F.  2d  82  (third  case). 

No.  85-86.  TUCKER  v.  HARTFORD  NATIONAL  BANK  &  TRUST 
Co.  Sup.  Ct.  Conn.  Certiorari  denied.  Reported  below:  195 
Conn.  218,  487  A.  2d  528. 

No.  85-87.  MILIAN-RODRIGUEZ  v.  UNITED  STATES.  C.  A. 
llth  Cir.  Certiorari  denied.  Reported  below:  759  F.  2d  1558. 

No.  85-89.  MEEKER  v.  NEW  MEXICO  ET  AL.  Sup.  Ct.  N.  M. 
Certiorari  denied. 

No.  85-90.  JONES  DAIRY  FARM  v.  LOCAL  No.  P-1236,  UNITED 
FOOD  &  COMMERCIAL  WORKERS  INTERNATIONAL  UNION,  AFL- 


846  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

CIO.     C.  A.  7th  Cir.     Certiorari  denied.      Reported  below:  760 
F.  2d  173. 

No.  85-91.  DE  LA  LASTRA  PETRIRE  ET  AL.  v.  SPANTAX,  S.  A. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  756  F.  2d  263. 

No.  85-101.  ARAIZA  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1003. 

No.  85-103.  GREAT  LAKES  DREDGE  &  DOCK  Co.,  INC.  v. 
FURKA,  ADMINISTRATRIX  OF  THE  ESTATE  OF  FURKA.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  755  F.  2d  1085. 

No.  85-104.  KABANUK  u  MINNESOTA.  Ct.  App.  Minn.  Cer- 
tiorari denied.  Reported  below:  363  N.  W.  2d  877. 

No.  85-105.  SISSON  v.  HELMS,  ADMINISTRATOR,  FEDERAL 
AVIATION  ADMINISTRATION,  ET  AL.  C.  A.  9th  Cir.  Certiorari 
denied.  Reported  below:  751  F.  2d  991. 

No.  85-106.  NEW  YORK  COUNCIL  ASSOCIATION  OF  CIVILIAN 
TECHNICIANS  u  FEDERAL  LABOR  RELATIONS  AUTHORITY. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  757  F.  2d 
502. 

No.  85-107.  CASTORINA  v.  LYKES  BROTHERS  STEAMSHIP  Co. , 
INC.  C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  758  F. 
2d  1025. 

No.  85-108.  AKERMAN  v.  BOARD  OF  HIGHER  EDUCATION  OF 
THE  CITY  OF  NEW  YORK  ET  AL.  C.  A.  2d  Cir.  Certiorari 
denied.  Reported  below:  751  F.  2d  367. 

No.  85-113.  LANDI  v.  Sui  ET  ux.  Ct.  App.  CaL,  1st  App. 
Dist.  Certiorari  denied.  Reported  below:  163  CaL  App.  3d  383, 
209  CaL  Rptr.  449. 

No.  85-114.  SHELTON  v.  WINSOR  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1019. 

No.  85-119.  MUELLER  v.  PEVSNER.  C.  A.  7th  Cir.  Certio- 
rari denied.  Reported  below:  762  F.  2d  1015. 

No.  85-120.  CANYONEERS,  INC.,  DBA  GRAND  CANYON  TRAIL 
GUIDES  v.  HODEL,  SECRETARY  OF  THE  INTERIOR,  ET  AL.  C.  A. 
9th  Cir.  Certiorari  denied.  Reported  below:  756  F.  2d  754. 


ORDERS  847 

474  U.  S.  October  7,  1985 

No.  85-124.  COCHRANE  u  SIMOR  ET  AL.  C.  A.  2d  Cir.  Cer- 
tiorari  denied.  Reported  below:  765  F.  2d  135. 

No.  85-126.  PEACOCK  ET  AL.  v.  UNITED  STATES.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  1313. 

No.  85-127.  CARRILLO  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  417. 

No.  85-128.  HOFFER  v.  ILLINOIS.  Sup.  Ct.  111.  Certiorari 
denied.  Reported  below:  106  IU.  2d  186,  478  N.  E.  2d  335. 

No.  85-133.  SYSTEMS  ARCHITECTS,  INC.,  ET  AL.  v.  UNITED 
STATES.  C.  A.  1st  Cir.  Certiorari  denied.  Reported  below: 
757  F.  2d  373. 

No.  85-135.  HINTON  v.  DIRECTOR,  OFFICE  OF  WORKERS'  COM- 
PENSATION PROGRAMS,  ET  AL.  C.  A.  6th  Cir.  Certiorari  de- 
nied. Reported  below:  762  F.  2d  1008. 

No.  85-139.  PENNZOIL  Co.  ET  AL.  v.  ASSOCIATED  GAS  DIS- 
TRIBUTORS ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  denied.  Re- 
ported below:  244  U.  S.  App.  D.  C.  145,  756  F.  2d  166. 

No.  85-141.  PUGH  v.  FLORIDA.  Dist.  Ct.  App.  Fla.,  4th  Dist. 
Certiorari  denied.  Reported  below:  467  So.  2d  1015. 

No.  85-143.  TAYLOR  v.  BLACKWELL.  C.  A.  3d  Cir.  Certio- 
rari denied.  Reported  below:  760  F.  2d  255. 

No.    85-145.       DOUGLAS    u    TRAVELERS    INNS    OF    NORTH 

WlLKESBORO,  INC.,  DBA  HOLIDAY  INN  OF  WlLKESBORO.   C.  A. 

4th  Cir.     Certiorari  denied.     Reported  below:  760  F.  2d  264. 

No.  85-147.  SOUTHWEST  CHEMICAL  SERVICES,  INC.  v.  SUPE- 
RIOR COURT  OF  MARICOPA  COUNTY  ET  AL.  Sup.  Ct.  Ariz.  Cer- 
tiorari denied. 

No.  85-149.  HARNEY  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  277. 

No.  85-150.  CHEVRON  U.  S.  A.  INC.  v.  BELCO  PETROLEUM 
CORP.  C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  755 
F.  2d  1151. 

No.  85-153.  BALTIMORE  GAS  &  ELECTRIC  Co.  ET  AL.  v. 
HEINTZ  ET  AL.  C.  A.  4th  Cir.  Certiorari  denied.  Reported 
below:  760  F.  2d  1408. 


848  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  85-154.  PFLUGER  u  ILLINOIS  DEPARTMENT  OF  REVENUE 
ET  AL.  App.  Ct.  111.,  2d  Dist.  Certiorari  denied. 

No.  85-158.  RUTTER  v.  COMMISSIONER  OF  INTERNAL  REVE- 
NUE. C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  760 
F.  2d  466. 

No.  85-160.  HUME,  ADMINISTRATRIX  OF  THE  ESTATE  OF 
HUME  v.  DURWOOD  MEDICAL  CLINIC,  INC.,  ET  AL.  Ct.  App. 
S.  C.  Certiorari  denied.  Reported  below:  282  S.  C.  236,  318 
S.  E.  2d  119. 

No.  85-161.  GARCIA  v.  SOUTHERN  PACIFIC  TRANSPORTATION 
Co.  Ct.  App.  Gal.,  6th  App.  Dist.  Certiorari  denied. 

No.  85-165.  BONWICH  v.  BONWICH.  Sup.  Ct.  Utah.  Certio- 
rari denied.  Reported  below:  699  P.  2d  760. 

No.  85-166.  AMERICAN  STEAMSHIP  Co.  v.  OBAD.  Ct.  App. 
Mich.  Certiorari  denied. 

No.  85-167.  HAWLEY  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  237. 

No.  85-168.  GINNODO  v.  OFFICE  OF  PERSONNEL  MANAGE- 
MENT. C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below: 
753  F.  2d  1061. 

No.  85-169.  CHAPMAN  ET  AL.  v.  STATE  BAR  OF  CALIFORNIA 
ET  AL.  Ct.  App.  Cal.,  4th  App.  Dist.  Certiorari  denied.  Re- 
ported below:  166  Cal.  App.  3d  1193,  213  Cal.  Rptr.  305. 

No.  85-171.  UGARTE  v.  UNITED  STATES  LINES,  INC.  Ct. 
App.  N.  Y.  Certiorari  denied.  Reported  below:  64  N.  Y.  2d 
836,  476  N.  E.  2d  333. 

No.  85-174.  LUNDY  v.  UNION  CARBIDE  CORP.  ET  AL.  C.  A. 
9th  Cir.  Certiorari  denied.  Reported  below:  758  F.  2d  656. 

No.  85-176.  TRANSCON  LINES,  INC.  v.  JOSEPH  SCHLITZ 
BREWING  Co.  C.  A.  7th  Cir.  Certiorari  denied.  Reported 
below:  757  F.  2d  171. 

No.  85-181.  COLLINS  Co.,  INC.,  ET  AL.  v.  TECTONICS,  INC.  OF 
FLORIDA,  ET  AL.  C.  A.  llth  Cir.  Certiorari  denied.  Reported 
below:  753  F.  2d  957. 


ORDERS  849 

474  U.  S.  October  7,  1985 

No.  85-183.  AMEND  ET  AL.  v.  POFF,  JUDGE,  47TH  JUDICIAL 
DISTRICT  COURT  OF  TEXAS,  ET  AL.  C.  A.  5th  Cir.  Certiorari 
denied.  Reported  below:  765  F.  2d  141. 

No.  85-185.  LARSON  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  852. 

No.  85-187.  WILLIS  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  1486. 

No.  85-190.  DENNIE,  INDIVIDUALLY  AND  ON  BEHALF  OF  HIS 
MINOR  SON,  NKOSI  v.  UNIVERSITY  OF  PITTSBURGH  SCHOOL  OF 
MEDICINE  ET  AL.  C.  A.  3d  Cir.  Certiorari  denied.  Reported 
below:  770  F.  2d  1068. 

No.  85-192.  AUTORINO  v.  SUPERINTENDENT,  ARTHUR  KILL 
CORRECTIONAL  FACILITY.  C.  A.  2d  Cir.  Certiorari  denied. 
Reported  below:  770  F.  2d  157. 

No.  85-194.  ERLBAUM  ET  AL.  v.  CLEM  ET  AL.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1067. 

No.  85-196.  MILLER  ET  AL.  v.  FIRST  FEDERAL  OF  MICHIGAN 
ET  AL.  C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  760 
F.  2d  1428. 

No.  85-197.  POTTER  v.  MURRAY  CITY  ET  AL.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  1065. 

No.  85-203.  SIMS  v.  COOKE  ET  AL.  C.  A.  2d  Cir.  Certiorari 
denied.  Reported  below:  767  F.  2d  908. 

No.  85-207.  NATIONAL  DISTILLERS  &  CHEMICAL  CORP.  v. 
PRATT.  C.  A.  6th  Cir.  Certiorari  denied.  Reported  below: 
765  F.  2d  146. 

No.  85-208.  CHEADLE  ET  ux.  v.  APPLEATCHEE  RIDERS  ASSN. 
ET  AL.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  757 
F.  2d  1035. 

No.  85-212.  MARTIN  v.  Two-R  DRILLING  Co.,  INC.,  ET  AL. 
C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  763  F.  2d 
415. 

No.  85-218.  LUXURY  BLANKETS,  INC.,  ET  AL.  v.  UNITED 
STATES.  C.  A.  6th  Cir.  Certiorari  denied.  Reported  below: 
762  F.  2d  1012. 


860  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  85-219.  F.  I.  CORP.,  DBA  FLUIDYNE  INSTRUMENTATION 
v.  BANK  OF  AMERICA,  N.  T.  &  S.  A.  C.  A.  9th  Cir.  Certiorari 
denied.  Reported  below:  760  F.  2d  275. 

No.  85-223.  AURAND  ET  AL.  v.  UNITED  STATES.  C.  A.  3d 
Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  262. 

No.  85-226.  HACKETT  v.  HOUSING  AUTHORITY  OF  THE  CITY 
OF  SAN  ANTONIO,  TEXAS.  C.  A.  5th  Cir.  Certiorari  denied. 
Reported  below:  750  F.  2d  1308. 

No.  85-229.  SAC  AND  Fox  TRIBE  OF  INDIANS  OF  OKLAHOMA 
ET  AL.  u  APEX  CONSTRUCTION  Co.,  INC.,  ET  AL.  C.  A.  10th 
Cir.  Certiorari  denied.  Reported  below:  757  F.  2d  221. 

No.  85-232.  PATCHETT  v.  PATCHETT.  App.  Ct.  Mass.  Cer- 
tiorari denied.  Reported  below:  19  Mass.  App.  1109,  475  N.  E. 
2d  439. 

No.  85-233.  FUTURA  DEVELOPMENT  CORP.  v.  CENTEX  CORP. 
ET  AL.  C.  A.  1st  Cir.  Certiorari  denied.  Reported  below:  761 
F.  2d  33. 

No.  85-235.  THRASHER  v.  ILLINOIS.  App.  Ct.  111. ,  4th  Dist. 
Certiorari  denied.  Reported  below:  130  111.  App.  3d  1165,  493 
N.  E.  2d  759. 

No.  85-238.  JOHANNS  v.  UNITED  STATES.  Ct.  Mil.  App. 
Certiorari  denied.  Reported  below:  20  M.  J.  155. 

No.  85-240.  CHAPMAN  v.  SMITH  BARNEY,  HARRIS  UPHAM  & 
Co.,  INC.  C.  A.  2d  Cir.  Certiorari  denied.  Reported  below: 
757  F.  2d  465. 

No.  85-243.  SERVICE,  HOSPITAL,  NURSING  HOME  &  PUBLIC 
EMPLOYEES  UNION,  LOCAL  47  v.  COMMERCIAL  PROPERTY  SERV- 
ICES, INC.,  ET  AL.  C.  A.  6th  Cir.  Certiorari  denied.  Reported 
below:  755  F.  2d  499. 

No.  85-247.  CRANBERG  v.  CONSUMERS  UNION  OF  UNITED 
STATES,  INC.,  ET  AL.  C.  A.  5th  Cir.  Certiorari  denied. 
Reported  below:  756  F.  2d  382. 

No.  85-253.  NEW  YORK  MARINE  MANAGERS,  INC.  v.  HELENA 
MARINE  SERVICES  ET  AL.  C.  A.  8th  Cir.  Certiorari  denied. 
Reported  below:  758  F.  2d  313. 


ORDERS  851 

474  U.  S.  October  7,  1985 

No.  85-258.  MILLER  u  INTERNATIONAL  TELEPHONE  &  TELE- 
GRAPH CORP.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  755  F.  2d  20. 

No.  85-262.  CORDIS  CORP.  u  MEDTRONIC,  INC.  C.  A.  Fed. 
Cir.  Certiorari  denied.  Reported  below:  769  F.  2d  733. 

No.  85-269.  NABORS  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  465. 

No.  85-270.  GANT  v.  UNITED  STATES.  C.  A.  5th  Cir.  Cer- 
tiorari denied.  Reported  below:  759  F.  2d  484. 

No.  85-274.  STELLY  ET  ux.  v.  COMMISSIONER  OF  INTERNAL 
REVENUE.  C.  A.  5th  Cir.  Certiorari  denied.  Reported  below: 
761  F.  2d  1113. 

No.  85-277.  GOVERN  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  937. 

No.    85-281.        SOMMERSTEDT   V.    UNITED    STATES.        C.  A.    9th 

Cir.     Certiorari  denied.     Reported  below:  752  F.  2d  1494. 

No.  85-290.  RAYNER  ET  AL.  v.  UNITED  STATES.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  1217. 

No.  85-291.  JACOB  v.  UNITED  STATES.  C.  A.  4th  Cir.  Cer- 
tiorari denied.  Reported  below:  765  F.  2d  140. 

No.  85-306.  Ross  ET  AL.  v.  BOWKER  ET  AL.  Ct.  App.  Iowa. 
Certiorari  denied.  Reported  below:  372  N.  W.  2d  513. 

No.  85-311.  COLLIS  v.  UNITED  STATES.  C.  A.  6th  Cir.  Cer- 
tiorari denied.  Reported  below:  766  F.  2d  219. 

No.  85-319.  WOODSIDE,  ADMINISTRATOR  OF  THE  ESTATE  OF 
WOODSIDE  v.  NATIONAL  DIRECTOR  OF  VETERAN'S  ADMINISTRA- 
TION ET  AL.  C.  A.  3d  Cir.  Certiorari  denied.  Reported  below: 
770  F.  2d  1078. 

No.  85-320.  PAPPANIKOLAOU  v.  ADMINISTRATOR  OF  THE  VET- 
ERANS ADMINISTRATION.  C.  A.  2d  Cir.  Certiorari  denied.  Re- 
ported below:  762  F.  2d  8. 

No.  85-324.  FAZZINO  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  125. 


852  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  85-5002.     OWENS  u  LUTHER.     C.  A.  2d  Cir.     Certiorari 
denied. 

No.  85-5004.  SCHRAMM  v.  CITY  OF  CUDAHY  ET  AL.  C.  A.  7th 
Cir.  Certiorari  denied. 

No.  85-5005.  STEVENS  v.  WISCONSIN.  Sup.  Ct.  Wis.  Cer- 
tiorari denied.  Reported  below:  123  Wis.  2d  303,  367  N.  W.  2d 

788. 

No.  85-5006.  SOMMER  v.  COUNTY  OF  SUFFOLK  ET  AL.  C.  A. 
2d  Cir.  Certiorari  denied. 

No.  85-5008.  ROBINSON  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied.  Reported  below:  486  A.  2d  727. 

No.  85-5009.  MCQUEEN  v.  MAGGIO,  WARDEN.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  755  F.  2d  1174. 

No.  85-5012.  WEISBRAUT  v.  HECKLER,  SECRETARY  OF 
HEALTH  AND  HUMAN  SERVICES,  ET  AL.  C.  A.  3d  Cir.  Certio- 
rari denied.  Reported  below:  757  F.  2d  83. 

No.  85-5014.  MILLER  v.  DEPARTMENT  OF  HEALTH  AND 
HUMAN  SERVICES.  C.  A.  6th  Cir.  Certiorari  denied.  Re- 
ported below:  762  F.  2d  1009. 

No.  85-5015.  HEMBREE-BEY  ET  AL.  u  COMMISSIONER  OF  IN- 
TERNAL REVENUE.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  765  F.  2d  135. 

No.  85-5016.  MACK  v.  WILLIAMS  ET  AL.  App.  Ct.  111.,  1st 
Dist.  Certiorari  denied. 

No.     85-5018.        WlEBNER    U     FULCOMER,     SUPERINTENDENT, 

STATE  CORRECTIONAL  INSTITUTION  AT  HUNTINGDON.     C.  A.  3d 
Cir.     Certiorari  denied. 

No.  85-5019.  SKAGGS  u  UNITED  STATES  ET  AL.  C.  A.  llth 
Cir.  Certiorari  denied. 

No.  85-5021.  SAVOCA  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  292. 

No.  85-5026.  BELL  ET  AL.  v.  ILLINOIS.  App.  Ct.  111.,  1st 
Dist.  Certiorari  denied.  Reported  below:  132  111.  App.  3d  354, 
476  N.  E.  2d  1239. 


ORDERS  853 

474  U.  S.  October  7,  1985 

No.  85-5027.  HAYS  v.  HAYS.  Sup.  Ct.  Alaska.  Certiorari 
denied. 

No.  85-5030.  RAINE  v.  REAGAN,  PRESIDENT  OF  THE  UNITED 
STATES,  ET  AL.  C.  A.  7th  Cir.  Certiorari  denied. 

No.  85-5031.  RASPALDO  v.  CARVER,  SUPERINTENDENT,  LE- 
HIGH  COUNTY  PRISON.  C.  A.  3d  Cir.  Certiorari  denied. 

No.  85-5032.  EAGLE  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  85-5033.  SMALLWOOD  v.  SCHMIDT,  SECRETARY,  DEPART- 
MENT OF  PUBLIC  SAFETY,  ET  AL.  C.  A.  4th  Cir.  Certiorari 
denied.  Reported  below:  758  F.  2d  649. 

No.  85-5035.  HERRERA-CEBALLOS  ET  AL.  v.  IMMIGRATION 
AND  NATURALIZATION  SERVICE  ET  AL.  C.  A.  5th  Cir.  Certio- 
rari denied.  Reported  below:  759  F.  2d  20. 

No.  85-5036.  HUMPHREY  v.  UNITED  STATES  DISTRICT  COURT 
OF  THE  MIDDLE  DISTRICT  OF  GEORGIA.  C.  A.  llth  Cir.  Certio- 
rari denied. 

No.  85-5037.  KELLY  v.  WARDEN,  HOUSE  OF  CORRECTION. 
C.  A.  4th  Cir.  Certiorari  denied.  Reported  below:  758  F.  2d 
143. 

No.  85-5038.  FAY  v.  UNITED  STATES.  C.  A.  8th  Cir.  Cer- 
tiorari denied. 

No.  85-5039.  ABRAHAM  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  909. 

No.  85-5041.  CHANDLER  v.  LORD.  C.  A.  2d  Cir.  Certiorari 
denied.  Reported  below:  767  F.  2d  907. 

No.  85-5043.  MASTERS  v.  TEXAS.  Ct.  Crim.  App.  Tex.  Cer- 
tiorari denied.  Reported  below:  685  S.  W.  2d  654. 

No.  85-5047.  BELL  v.  UNITED  STATES.  C.  A.  6th  Cir.  Cer- 
tiorari denied.  Reported  below:  762  F.  2d  495. 

No.  85-5049.  SALMAN  v.  UNITED  STATES  SUPREME  COURT. 
C.  A.  9th  Cir.  Certiorari  denied. 


854  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  85-5050.  VAN  HORN  v.  HECKLER,  SECRETARY  OF 
HEALTH  AND  HUMAN  SERVICES.  C.  A.  2d  Cir.  Certiorari 
denied.  Reported  below:  762  F.  2d  991. 

No.  85-5051.  THACKER,  BY  AND  THROUGH  NORMAN,  HIS 
NEXT  FRIEND  u  ATIYEH  ET  AL.  C.  A.  9th  Cir.  Certiorari 
denied. 

No.  85-5052.  LEBLANC  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  502. 

No.  85-5054.  ABERNATHY  ET  AL.  v.  UNITED  STATES.  C.  A. 
9th  Cir.  Certiorari  denied.  Reported  below:  757  F.  2d  1012. 

No.  85-5055.  PATTERSON  v.  MCWHERTER  ET  AL.  C.  A.  6th 
Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  1010. 

No.  85-5057.  LAYHUE  u  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1072. 

No.  85-5059.  NOTTINGHAM  v.  UNITED  STATES.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  1001. 

No.  85-5060.  OTIS  u  SEARS,  ROEBUCK  &  Co.  C.  A.  7th  Cir. 
Certiorari  denied. 

No.  85-5061.  CARIGON  u  MICHIGAN.  Sup.  Ct.  Mich.  Certio- 
rari denied.  Reported  below:  422  Mich.  930,  368  N.  W.  2d  871. 

No.  85-5063.  FAY  v.  O'BRIEN,  WARDEN.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  85-5066.  LIZZANA  v.  SCHWEGMANN  GIANT  SUPERMAR- 
KETS, INC.  Sup.  Ct.  La.  Certiorari  denied.  Reported  below: 
469  So.  2d  979. 

No.  85-5067.  BOVEE  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  146. 

No.  85-5068.  HAIRSTON  u  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  233. 

No.  85-5069.  SMITH  v.  MARYLAND.  Ct.  App.  Md.  Certio- 
rari denied.  Reported  below:  303  Md.  361,  493  A.  2d  1082. 

No.  85-5070.  HALEY  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  1294. 


ORDERS  855 

474  U.  S.  October  7,  1985 

No.  85-5071.  PADRON  ET  AL.  v.  UNITED  STATES.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  763  F.  2d  417. 

No.  85-5072.  HENRY  u  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1070. 

No.  85-5075.  BOWMAN  v.  CINCINNATI  MINE  MACHINERY  Co. 
ET  AL.  C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  762 
F.  2d  1005. 

No.  85-5076.  BUTLER  u  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 

No.  85-5077.  PARKER  v.  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 
Reported  below:  763  F.  2d  665. 

No.  85-5079.  SAKAL  v.  PETSOCK,  SUPERINTENDENT,  STATE 
CORRECTIONAL  INSTITUTION  AND  DIAGNOSTIC  AND  CLASSIFICA- 
TION CENTER,  ET  AL.  C.  A.  3d  Cir.  Certiorari  denied. 

No.  85-5080.  SRUBAR  ET  AL.  u  DEPARTMENT  OF  THE  TREAS- 
URY ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  Reported  below: 
755  F.  2d  914. 

No.  85-5081.  GASSETT  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  153. 

No.  85-5083.  JOHNSON  v.  NEW  YORK  STATE  COURT  OFFICERS 
ASSN.  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  767  F.  2d  908. 

No.  85-5085.  RABON  v.  BRYAN  COUNTY  BOARD  OF  EDUCA- 
TION. Ct.  App.  Ga.  Certiorari  denied.  Reported  below:  173 
Ga.  App.  507,  326  S.  E.  2d  577. 

No.  85-5088.  FAIRLEY  v.  MISSISSIPPI.  Sup.  Ct.  Miss.  Cer- 
tiorari denied.  Reported  below:  467  So.  2d  894. 

No.  85-5089.  BAD  FOOT  v.  BOLT,  SHERIFF,  ET  AL.  Sup.  Ct. 
Cal.  Certiorari  denied. 

No.  85-5092.  BROWN  v.  NEW  YORK.  Ct.  App.  N.  Y.  Cer- 
tiorari denied.  Reported  below:  65  N.  Y.  2d  813,  482  N.  E.  2d 
929. 


856  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  85-5093.  CAREY  u  AFFORD,  WARDEN.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  85-5096.  COVINGTON  u  LEEKE,  COMMISSIONER,  SOUTH 
CAROLINA  DEPARTMENT  OF  CORRECTIONS.  C.  A.  4th  Cir.  Cer- 
tiorari denied.  Reported  below:  762  F.  2d  997. 

No.  85-5097.  CAMPBELL  v.  KENTUCKY.  Sup.  Ct.  Ky.  Cer- 
tiorari denied. 

No.  85-5104.  GLASS  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  479. 

No.  85-5108.  BURTON  v.  STOUTS  ET  AL.  C.  A.  8th  Cir.  Cer- 
tiorari denied.  Reported  below:  760  F.  2d  273. 

No.  85-5109.  BROCK  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1012. 

No.  85-5110.  ROSE  u  UNITED  STATES.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  770  F.  2d  1075. 

No.  85-5114.  MUSICANT  v.  TERRY  ET  AL.  Sup.  Ct.  Haw. 
Certiorari  denied. 

No.  85-5118.  TRACY  v.  COMMISSIONER  OF  INTERNAL  REVE- 
NUE. C.  A.  7th  Cir.  Certiorari  denied. 

No.  85-5120.  CANTERO-RODRIGUEZ  v.  UNITED  STATES. 
C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  765  F.  2d 
152. 

No.  85-5122.  MORRIS  v.  ILLINOIS.  App.  Ct.  111.,  4th  Dist. 
Certiorari  denied. 

No.  85-5123.  LUCERO  v.  COLORADO  STATE  BOARD  OF  LAW 
EXAMINERS  ET  AL.  C.  A.  10th  Cir.  Certiorari  denied.  Re- 
ported below:  760  F.  2d  239. 

No.  85-5124.  AUSTAD  v.  RISLEY,  WARDEN,  ET  AL.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  1348. 

No.  85-5125.  LONG  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied. 

No.  85-5128.  FAISON  v.  MCLEAN  TRUCKING  Co.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  758  F.  2d  646. 


ORDERS  857 

474  U.  S.  October  7,  1985 

No.  85-5130.  KARABIN  v.  PETSOCK,  SUPERINTENDENT, 
PENNSYLVANIA  STATE  CORRECTIONAL  INSTITUTION  AND  DI- 
AGNOSTIC AND  CLASSIFICATION  CENTER.  C.  A.  3d  Cir.  Certio- 
rari  denied.  Reported  below:  758  F.  2d  966. 

No.  85-5132.  REYES  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  351. 

No.  85-5135.  FLEMING  v.  ALABAMA.  Ct.  Crim.  App.  Ala. 
Certiorari  denied.  Reported  below:  470  So.  2d  1343. 

No.  85-5136.  BURNETT  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  146. 

No.  85-5137.  KNOX  v.  TEAMSTERS  UNION  LOCAL  222  ET  AL. 
C.  A.  10th  Cir.  Certiorari  denied. 

No.  85-5138.  ANDERSON  v.  STAGNER,  SUPERINTENDENT, 
CORRECTIONAL  TRAINING  FACILITY,  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied. 

No.  85-5139.  FERGUSON  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  85-5142.  MILLER  ET  AL.  v.  DILLON  ET  AL.  C.  A.  7th  Cir. 
Certiorari  denied. 

No.  85-5143.  GATES  u  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  85-5144.  OWENS  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied. 

No.  85-5146.     CLEMENTS  v.  WEST  VIRGINIA.     Sup.  Ct.  App. 

W.  Va.      Certiorari  denied.      Reported  below:  W.  Va.  , 

334  S.  E.  2d  600. 

No.  85-5151.  HOWARD  v.  HOWARD.  Sup.  Ct.  Ind.  Certio- 
rari denied. 

No.  85-5152.  WILLIAMS  v.  ROCKWELL  INTERNATIONAL  ET  AL. 
C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  762  F.  2d 
1020. 

No.  85-5153.  FOSTER  v.  NEW  YORK.  Ct.  App.  N.  Y.  Cer- 
tiorari denied.  Reported  below:  64  N.  Y.  2d  1144,  480  N.  E.  2d 
340. 


858  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  85-5156.  GILES  u  INDIANA.  Sup.  Ct.  Ind.  Certiorari 
denied. 

No.  85-5157.  BENSON  ET  AL.  v.  UNITED  STATES.  C.  A.  8th 
Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  862. 

No.  85-5158.  BROWNSTEIN  u  DIRECTOR,  ILLINOIS  DEPART- 
MENT OF  CORRECTIONS,  ET  AL.  C.  A.  7th  Cir.  Certiorari 
denied.  Reported  below:  760  F.  2d  836. 

No.  85-5159.  MUHAMMAD  u  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1077. 

No.  85-5161.  WHITTLESEY  v.  MARYLAND.  Ct.  Sp.  App.  Md. 
Certiorari  denied.  Reported  below:  61  Md.  App.  721. 

No.  85-5165.  BROWN  v.  WASHINGTON  METROPOLITAN  AREA 
TRANSIT  AUTHORITY  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  de- 
nied. Reported  below:  246  U.  S.  App.  D.  C.  293,  764  F.  2d  926. 

No.  85-5166.  ISARAPHANICH  v.  NEW  YORK.  App.  Div.,  Sup. 
Ct.  N.  Y.,  1st  Jud.  Dept.  Certiorari  denied.  Reported  below: 
109  App.  Div.  2d  1107,  487  N.  Y.  S.  2d  451. 

No.  85-5168.  HARLEY  u  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1076. 

No.  85-5169.  BURTON  v.  FORD  ET  AL.  C.  A.  8th  Cir.  Cer- 
tiorari denied. 

No.  85-5170.  BENNETT  v.  ILLINOIS.  App.  Ct.  111. ,  1st  Dist. 
Certiorari  denied.  Reported  below:  130  111.  App.  3d  1157,  493 
N.  E.  2d  755. 

No.  85-5172.  MILLER  v.  WEBSTER  ET  AL.  C.  A.  llth  Cir. 
Certiorari  denied. 

No.  85-5173.  HERRERA-VEGA  v.  UNITED  STATES.  C.  A. 
llth  Cir.  Certiorari  denied.  Reported  below:  765  F.  2d  153. 

No.  85-5174.  PHELPS  v.  SOVRAN  BANK.  Sup.  Ct.  Va.  Cer- 
tiorari denied. 

No.  85-5175.  SELF  v.  STEPHENSON,  SUPERINTENDENT,  CAL- 
EDONIA AND  ODOM  COMPLEX.  C.  A.  4th  Cir.  Certiorari  denied. 
Reported  below:  765  F.  2d  139. 


ORDERS  859 

474  U.  S.  October  7,  1985 

No.  85-5176.  BURTON  v.  DELANIE  ET  AL.  C.  A.  8th  Cir. 
Certiorari  denied. 

No.  85-5178.  HODGES  u  CITY  OF  ANN  ARBOR,  MICHIGAN,  ET 
AL.  C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  755 
F.  2d  932. 

No.  85-5179.  KALTENBACH  u  ACADIAN  METROPOLITAN  CODE 
AUTHORITY.  Sup.  Ct.  La.  Certiorari  denied.  Reported  below: 
467  So.  2d  1134. 

No.  85-5181.  YOUNG  u  WAINWRIGHT,  SECRETARY,  FLORIDA 
DEPARTMENT  OF  CORRECTIONS.  C.  A.  llth  Cir.  Certiorari 
denied.  Reported  below:  757  F.  2d  285. 

No.  85-5183.  FORD  v.  HECKLER,  SECRETARY  OF  HEALTH  AND 
HUMAN  SERVICES.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  767  F.  2d  907. 

No.  85-5184.  MARIN  v.  UNITED  STATES.  C.  A.  2d  Cir.  Cer- 
tiorari denied.  Reported  below:  770  F.  2d  158. 

No.  85-5187.  THOMAS  v.  YLST,  WARDEN.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  934. 

No.  85-5188.  IDLEBIRD  v.  DIRECTOR,  OFFICE  OF  WORKERS' 
COMPENSATION  PROGRAMS,  ET  AL.  C.  A.  5th  Cir.  Certiorari 
denied. 

No.  85-5191.  MERCER  v.  LUTHER,  WARDEN,  ET  AL.  C.  A. 
7th  Cir.  Certiorari  denied. 

No.  85-5192.  MARTINEZ-TORRES  ET  AL.  u  UNITED  STATES. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  722  F.  2d 
1019. 

No.  85-5194.  CEDAR  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  922. 

No.  85-5197.  BILLINGS  u  SMITH.  C.  A.  6th  Cir.  Certiorari 
denied.  Reported  below:  765  F.  2d  144. 

No.  85-5198.  LYLES  v.  ILLINOIS.  Sup.  Ct.  111.  Certiorari 
denied.  Reported  below:  106  111.  2d  373,  478  N.  E.  2d  291. 

No.  85-5199.  WILSON  u  ROCKEFELLER.  C.  A.  D.  C.  Cir. 
Certiorari  denied. 


860  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  85-5200.  MARTIN-TRIGONA  u  FERRARI,  TRUSTEE. 
C.  A.  1st  Cir.  Certiorari  denied. 

No.  85-5201.  FROEMAN  v.  MARYLAND  ET  AL.  C.  A.  4th  Cir. 
Certiorari  denied. 

No.  85-5202.  BROWN  v.  ZANT.  Ct.  App.  Ga.  Certiorari 
denied.  Reported  below:  173  Ga.  App.  XXX. 

No.  85-5203.  LEAHEY  v.  McGuiRE,  POLICE  COMMISSIONER  OF 
THE  CITY  OF  NEW  YORK,  ET  AL.  App.  Div.,  Sup.  Ct.  N.  Y.,  1st 
Jud.  Dept.  Certiorari  denied.  Reported  below:  105  App.  Div. 
2d  1164,  482  N.  Y.  S.  2d  406. 

No.  85-5204.  KALEC  v.  DUCKWORTH,  WARDEN,  ET  AL.  C.  A. 
7th  Cir.  Certiorari  denied.  Reported  below:  767  F.  2d  925. 

No.  85-5206.  STREICH  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  579. 

No.  85-5207.  KESSLER  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  831. 

No.  85-5208.  HUGHES  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  85-5210.  PATTERSON  v.  OHIO.  Ct.  App.  Ohio,  Cuyahoga 
County.  Certiorari  denied. 

No.  85-5211.  KELLEY  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied. 

No.  85-5215.  LAUGA  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1288. 

No.  85-5217.  KENNY  v.  CALIFORNIA.  Sup.  Ct.  Cal.  Certio- 
rari denied. 

No.  85-5218.  BETKA  v.  SMITH  ET  AL.  C.  A.  9th  Cir.  Certio- 
rari denied. 

No.  85-5219.  ROMAN  v.  ABRAMS,  ATTORNEY  GENERAL  OF 
NEW  YORK.  C.  A.  2d  Cir.  Certiorari  before  judgment  denied. 

No.  85-5223.  SOBIN  v.  DISTRICT  OF  COLUMBIA.  Ct.  App. 
D.  C.  Certiorari  denied.  Reported  below:  494  A.  2d  1272. 


ORDERS  861 

474  U.  S.  October  7,  1985 

No.  85-5228.      MILLER  v.  UNITED  STATES.      C.  A.   llth  Cir. 
Certiorari  denied.     Reported  below:  762  F.  2d  1022. 

No.   85-5229.      MIMS   u    UNITED   STATES.      Ct.   App.   D.  C. 
Certiorari  denied. 

No.  85-5233.     O'NEiL  v.  FLORIDA.     Sup.  Ct.  Fla.     Certiorari 
denied.     Reported  below:  468  So.  2d  904. 

No.  85-5239.     WRIGHT  v.  GIRJALVA,  WARDEN.     Sup.  Ct.  Ariz. 
Certiorari  denied. 

No.   85-5241.      PAPSE   u    UNITED   STATES.      C.  A.   9th  Cir. 
Certiorari  denied.     Reported  below:  765  F.  2d  150. 

No.  85-5243.     PHILLIPS  u  LOMBARDI  ET  AL.     C.  A.  2d  Cir. 
Certiorari  denied. 

No.  85-5244.      PAYNE  v.   COUGHLIN  ET  AL.      C.  A.   2d  Cir. 
Certiorari  denied. 

No.  85-5245.     FOSTER  v.  SMITH  ET  AL.     C.  A.  7th  Cir.     Cer- 
tiorari denied.     Reported  below:  762  F.  2d  1015. 

No.  85-5249.      BROWN  v.  BRUNO.      C.  A.  6th  Cir.      Certiorari 
denied.     Reported  below:  767  F.  2d  919. 

No.  85-5251.      ROSBERG  v.  GOERES.      Sup.  Ct.  Neb.      Certio- 
rari denied.     Reported  below:  218  Neb.  xxxiv. 

No.   85-5253.      VIGNE   v.    UNITED   STATES.      C.  A.   7th   Cir. 
Certiorari  denied. 

No.  85-5254.      VIGNE  v.  UNITED  STATES  ET  AL.      C.  A.  6th 
Cir.     Certiorari  denied. 

No.  85-5255.     VIGNE  v.  UNITED  STATES  ET  AL.     C.  A.  3d  Cir. 
Certiorari  denied.      Reported  below:  755  F.  2d  925. 

No.  85-5257.      CARTER  v.   UNITED  STATES.      C.  A.   9th  Cir. 
Certiorari  denied.      Reported  below:  765  F.  2d  150. 

No.  85-5258.     NEUMANN  v.  UNITED  STATES.     C.  A.  9th  Cir. 
Certiorari  denied. 

No.  85-5259.      BOONE  ET  ux.  v.  UNITED  STATES.     C.  A.  4th 
Cir.     Certiorari  denied.      Reported  below:  759  F.  2d  345. 


862  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  85-5261.  EDGE  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  85-5265.  MEDLIN  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  85-5267.  TROTMAN  v.  RYAN,  SUPERINTENDENT,  STATE 
CORRECTIONAL  INSTITUTION,  DALLAS.  C.  A.  3d  Cir.  Certio- 
rari denied. 

No.  85-5268.  DiSiLVESTRO  u  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  30. 

No.  85-5270.  LAFFITTE  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  1119. 

No.  85-5272.  IGBATAYO  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  764  F.  2d  1039. 

No.  85-5275.  CARTER  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  992. 

No.  85-5276.  BRYANT  u  BRADMAN,  JAIL  ADMINISTRATOR, 
ET  AL.  C.  A.  3d  Cir.  Certiorari  denied. 

No.  85-5285.  CAUTHEN-BEY  u  UNITED  STATES.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  755  F.  2d  930. 

No.  85-5290.  WILSON  u  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  909. 

No.  85-5292.  JOHNSON  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  773. 

No.  85-5295.  BLAKE  v.  NASSAU  COUNTY  DEPARTMENT  OF 
SOCIAL  SERVICES.  App.  Div.,  Sup.  Ct.  N.  Y.,  2d  Jud.  Dept. 
Certiorari  denied.  Reported  below:  111  App.  Div.  2d  168,  488 
N.  Y.  S.  2d  796. 

No.  85-5298.  MARTIN  v.  MEESE,  ATTORNEY  GENERAL  OF  THE 
UNITED  STATES,  ET  AL.  C.  A.  10th  Cir.  Certiorari  denied. 

No.  85-5301.  DOTSON  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  158. 


ORDERS  863 

474  U.  S.  October  7,  1985 

No.  85-5311.  SCOTT  v.  UNITED  STATES.  C.  A.  9th  Cir.  Cer- 
tiorari  denied.  Reported  below:  770  F.  2d  171. 

No.  85-5312.  WEEMPE  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  671. 

No.  85-5318.  SIMON  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  420. 

No.  85-5331.  HARTFORD  v.  ARIZONA.  Ct.  App.  Ariz.  Cer- 
tiorari denied.  Reported  below:  145  Ariz.  403,  701  P.  2d  1211. 

No.  84-1543.  PITTSBURGH  &  LAKE  ERIE  RAILROAD  Co.  v. 
HUMPHRIES.  Super.  Ct.  Pa.  Certiorari  denied.  JUSTICE 
WHITE  would  grant  certiorari.  Reported  below:  328  Pa.  Super. 
119,  476  A.  2d  919. 

No.  84-2013.  DUQUESNE  LIGHT  Co.  ET  AL.  v.  INTERNA- 
TIONAL UNION,  UNITED  MINE  WORKERS  OF  AMERICA,  ET  AL. 
C.  A.  3d  Cir.  Certiorari  denied.  JUSTICE  WHITE  would  grant 
certiorari.  Reported  below:  756  F.  2d  284. 

No.  85-52.  HECKLER,  SECRETARY  OF  HEALTH  AND  HUMAN 
SERVICES,  ET  AL.  v.  ABINGTON  MEMORIAL  HOSPITAL  ET  AL. 
C.  A.  3d  Cir.  Certiorari  denied.  JUSTICE  WHITE  would  grant 
certiorari.  Reported  below:  750  F.  2d  242. 

No.  85-53.  HECKLER,  SECRETARY  OF  HEALTH  AND  HUMAN 
SERVICES  v.  HUMANA  OF  AURORA,  INC.,  DBA  AURORA  COMMU- 
NITY HOSPITAL.  C.  A.  10th  Cir.  Certiorari  denied.  JUSTICE 
WHITE  would  grant  certiorari.  Reported  below:  753  F.  2d  1579. 

No.  84-1559.  UNITED  VAN  LINES,  INC.  v.  HUNTER  ET  AL. 
C.  A.  9th  Cir.  Motion  of  American  Movers  Conference  for  leave 
to  file  a  brief  as  amicus  curiae  granted.  Certiorari  denied.  Re- 
ported below:  746  F.  2d  635. 

No.  84-1796.  FOLGER  COFFEE  Co.  v.  INDIAN  COFFEE  CORP. 
C.  A.  3d  Cir.  Certiorari  denied.  JUSTICE  POWELL  took  no  part 
in  the  consideration  or  decision  of  this  petition.  Reported  below: 
752  F.  2d  891. 

No.  84-6742.  BAILEY  ET  AL.  v.  BUCKEYE  CELLULOSE  CORP. 
C.  A.  llth  Cir.  Certiorari  denied.  JUSTICE  POWELL  took  no 
part  in  the  consideration  or  decision  of  this  petition. 


864  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-1842.  TORRES  v.  LITTLE  FLOWER'S  CHILDREN'S  SERV- 
ICES ET  AL.  Ct.  App.  N.  Y.  Certiorari  denied.  JUSTICE 
BRENNAN  and  JUSTICE  BLACKMUN  would  grant  certiorari.  Re- 
ported below:  64  N.  Y.  2d  119,  474  N.  E.  2d  223. 

No.  84-1850.  TEXAS  v.  CHAMBERS.  Ct.  Grim.  App.  Tex. 
Motion  of  respondent  for  leave  to  proceed  in  forma  pauperis 
granted.  Certiorari  denied.  Reported  below:  688  S.  W.  2d  483. 

No.  84-1870.  WAINWRIGHT,  SECRETARY,  FLORIDA  DEPART- 
MENT OF  CORRECTIONS,  ET  AL.  v.  THOMAS.  C.  A.  llth  Cir. 
Motion  of  respondent  for  leave  to  proceed  in  forma  pauperis 
granted.  Certiorari  denied.  Reported  below:  758  F.  2d  658. 

No.  84-1957.  MCCOTTER,  DIRECTOR,  TEXAS  DEPARTMENT  OF 
CORRECTIONS  v.  FRANSAW.  C.  A.  5th  Cir.  Motion  of  respond- 
ent for  leave  to  proceed  in  forma  pauperis  granted.  Certiorari 
denied.  Reported  below:  753  F.  2d  1074. 

No.  85-138.  ABRAMS,  ATTORNEY  GENERAL  OF  NEW  YORK  v. 
ROMAN.  C.  A.  2d  Cir.  Motion  of  respondent  for  leave  to  pro- 
ceed in  forma  pauperis  granted.  Certiorari  before  judgment 
denied. 

No.  84-1869.  MARCONE  v.  PENTHOUSE  INTERNATIONAL,  LTD. 
C.  A.  3d  Cir.  Certiorari  denied.  THE  CHIEF  JUSTICE  and  JUS- 
TICE WHITE  would  grant  certiorari.  Reported  below:  754  F.  2d 
1072. 

No.  84-1898.  BLACKMON  v.  OBSERVER  TRANSPORTATION  Co. 
C.  A.  4th  Cir.  Motion  of  petitioner  for  leave  to  proceed  as  a 
veteran  granted.  Certiorari  denied.  Reported  below:  756  F.  2d 
1000. 

No.  84-1899.  MUELLER  v.  DIEBALL  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied.  JUSTICE  BLACKMUN  took  no  part  in  the  con- 
sideration or  decision  of  this  petition.  Reported  below:  753  F.  2d 
1082. 

No.  84-1958.  RONWIN  v.  HOLOHAN  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied.  JUSTICE  REHNQUIST  and  JUSTICE  O'CONNOR 
took  no  part  in  the  consideration  or  decision  of  this  petition. 
Reported  below:  758  F.  2d  656. 

No.  84-2008.  READING  Co.  ET  AL.  v.  SCHWEITZER  ET  AL. 
C.  A.  3d  Cir.  Motions  of  Penn  Central  Corp.  and  Amatex  Corp. 


ORDERS  865 

474  U.  S.  October  7,  1985 

for   leave   to   file   briefs    as    amid   curiae   granted.       Certiorari 
denied.     Reported  below:  758  F.  2d  936. 

No.  84-2009.  DEL  MONTE  CORP.  ET  AL.  v.  BLAU  ET  AL. 
C.  A.  9th  Cir.  Motion  of  Organization  Resources  Counselors, 
Inc. ,  for  leave  to  file  a  brief  as  a/micus  curiae  granted.  Certiorari 
denied.  Reported  below:  748  F.  2d  1348. 

No.  84-2035.  YORK  ET  AL.  v.  FIRST  PRESBYTERIAN  CHURCH 
OF  ANNA,  ILLINOIS,  ET  AL.  App.  Ct.  111.,  5th  Dist.  Motion  of 
petitioners  to  consolidate  this  case  with  No.  85-10,  Presbytery 
of  Beaver-Butler  v.  Middlesex  Presbyterian  Church,  infra,  de- 
nied. Certiorari  denied.  Reported  below:  130  111.  App.  3d  611, 
474  N.  E.  2d  716. 

No.  84-6474.  JOHNSON  v.  TEXAS.     Ct.  Crim.  App.  Tex.; 

No.  84-6551.  BONHAM  v.  TEXAS.     Ct.  Crim.  App.  Tex.; 

No.  84-6596.  LEWIS  v.  ILLINOIS.     Sup.  Ct.  111.; 

No.  84-6651.  THOMPSON  v.  TEXAS.     Ct.  Crim.  App.  Tex.; 

No.  84-6653.  FLAMER  v.  DELAWARE.     Sup.  Ct.  Del.; 

No.  84-6771.  ROACH  v.  MARTIN,  WARDEN,  ET  AL.  C.  A.  4th 
Cir.; 

No.  84-6823.  WALKER  v.  GEORGIA.     Sup.  Ct.  Ga.; 

No.  84-6833.  DUFF-SMITH  v.  TEXAS.     Ct.  Crim.  App.  Tex.; 

No.  84-6852.  BROWN  v.  FRANCIS,  WARDEN.      Sup.  Ct.  Ga.; 

No.  84-6861.  MATHIS  v.  KEMP,  WARDEN.     Sup.  Ct.  Ga.; 

No.  84-6879.  JOHNSON  v.  FLORIDA.     Sup.  Ct.  Fla.; 

No.  84-6899.  HOPKINSON  v.  WYOMING.     Sup.  Ct.  Wyo.; 

No.  84-6907.  DICK  v.  GEORGIA.     Sup.  Ct.  Ga.; 

No.  84-6911.  BURDEN  v.  KEMP,  WARDEN.     Sup.  Ct.  Ga.; 

No.  84-6970.  DAMON  v.  SOUTH  CAROLINA.      Sup.  Ct.  S.  C.; 

No.  85-5044.  STAFFORD  v.  OKLAHOMA.  Ct.  Crim.  App. 
Okla.; 

No.  85-5095.  PROVENS  v.  MORRIS,  SUPERINTENDENT,  SOUTH- 
ERN OHIO  CORRECTIONAL  FACILITY,  ET  AL.  C.  A.  6th  Cir.; 

No.  85-5119.  OATS  v.  FLORIDA.     Sup.  Ct.  Fla.; 

No.  85-5212.  GRAYSON  v.  ALABAMA.     Sup.  Ct.  Ala.; 

No.  85-5220.  PINKERTON  v.  MCCOTTER,  DIRECTOR,  TEXAS 
DEPARTMENT  OF  CORRECTIONS.  C.  A.  5th  Cir.; 

No.  85-5224.  POYNER  v.  VIRGINIA.     Sup.  Ct.  Va;  and 

No.  85-5225.  POYNER  v.  VIRGINIA.  Sup.  Ct.  Va.  Certio- 
rari denied.  Reported  below:  No.  84-6474,  691  S.  W.  2d  619; 


866  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-6551,  680  S.  W.  2d  815;  No.  84-6596,  105  111.  2d  226,  473 
N.  E.  2d  901;  No.  84-6651,  691  S.  W.  2d  627;  No.  84-6653,  490  A. 
2d  104;  No.  84-6771,  757  F.  2d  1463;  No.  84-6823,  254  Ga.  149,  327 
S.  E.  2d  475;  No.  84-6833,  685  S.  W.  2d  26;  No.  84-6852,  254  Ga. 
83,  326  S.  E.  2d  735;  No.  84-6879,  465  So.  2d  499;  No.  84-6899, 
696  P.  2d  54;  No.  84-6970,  285  S.  C.  125,  328  S.  E.  2d  628; 
No.  85-5044,  700  P.  2d  223;  No.  85-5119,  472  So.  2d  1143; 
No.  85-5212,  479  So.  2d  76;  Nos.  85-5224  and  85-5225,  229  Va. 
401,  329  S.  E.  2d  815. 

JUSTICE  BKENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentences  in  these  cases. 

No.  84-6527.  BAILEY  v.  ARKANSAS.  Sup.  Ct.  Ark.  Certio- 
rari denied.  JUSTICE  BRENNAN,  JUSTICE  MARSHALL,  and  JUS- 
TICE BLACKMUN  would  grant  certiorari.  Reported  below:  284 
Ark.  379,  682  S.  W.  2d  734. 

No.  84-6558.  STEWART  v.  TEXAS.  Ct.  Crim.  App.  Tex. 
Certiorari  denied.  Reported  below:  686  S.  W.  2d  118. 

JUSTICE  MARSHALL,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

Petitioner  in  this  case  seeks  no  revolutionary  expansion  of  the 
principles  underlying  this  Court's  current  death  penalty  jurispru- 
dence. All  he  asks  is  the  benefit  of  existing  law  as  proclaimed 
by  a  majority  of  this  Court.  This  Court  has  declared  that  a  sen- 
tence of  death  may  not  be  imposed  on  one  "who  aids  and  abets  a 
felony  in  the  course  of  which  a  murder  is  committed  by  others  but 
who  does  not  himself  kill,  attempt  to  kill,  or  intend  that  a  killing 
take  place  or  that  lethal  force  will  be  employed."  Enmund  v. 
Florida,  458  U.  S.  782,  797  (1982).  Yet  the  Court's  refusal  to 
consider  petitioner's  case  countenances  just  that  result.  Even  if  I 
believed,  therefore,  that  the  death  penalty  could  constitutionally 
be  imposed  under  certain  circumstances,1  I  would  grant  certiorari 
in  this  case  and  vacate  the  death  sentence  imposed  here. 

*I  continue  to  adhere  to  my  view  that  the  death  penalty  is,  in  all  cir- 
cumstances, cruel  and  unusual  punishment  prohibited  by  the  Eighth  and 


ORDERS  867 

866  MARSHALL,  J.,  dissenting 


At  his  murder  trial,  petitioner  Darryl  Elroy  Stewart  and  his 
accomplice  Kelvin  Kelly  provided  conflicting  theories  about  the 
crime.  According  to  Stewart's  statement,  which  the  State  intro- 
duced at  trial,  he  and  Kelly  were  walking  past  the  deceased's 
apartment  when  Kelly  saw  through  the  open  door  a  stereo  that  he 
wanted  to  steal.  Kelly  told  Stewart  that  he  was  going  to  run  in 
and  grab  the  stereo,  and  instructed  Stewart  to  stand  guard  at  the 
door.  Stewart  heard  a  woman  scream;  heard  Kelly  attempt  to 
force  sexual  relations  on  her;  saw  glimpses  of  a  struggle;  and 
heard  two  shots.  Thus,  Stewart's  statement  indicated  that  he 
agreed  to  assist  in  Kelly's  theft  of  the  stereo;  that  Kelly  strayed 
from  the  plan  to  steal  the  stereo  and  attempted  to  commit  a  sexual 
offense  against  the  occupant  of  the  apartment;  and  that  during 
the  course  of  this  offense  Kelly  killed  the  victim.  If  Stewart's 
account  of  the  crime  is  accepted,  he  did  not  himself  kill,  did  not 
attempt  to  Mil,  and  did  not  intend  that  a  killing  would  take  place. 
According  to  Kelly,  however,  it  was  Stewart  who  entered  the 
apartment  to  commit  burglary,  Stewart  who  had  the  gun,  Stewart 
who  attempted  a  sexual  assault  on  the  victim,  and  Stewart  who 
killed  her,  while  Kelly  waited  at  the  door;  the  State  introduced 
some  evidence  corroborating  this  story.  Kelly  was  promised,  in 
exchange  for  his  testimony,  that  he  would  receive  no  more  than  50 
years  in  prison. 

II 

The  jury  was  asked  to  resolve  this  conflicting  evidence  and  de- 
termine the  guilt  or  innocence  of  Stewart  on  the  murder  charge. 
In  order  to  guide  the  jury  in  that  endeavor,  the  trial  judge  gave  a 
lengthy  instruction  on  the  Texas  "law  of  parties,"  set  out  in  full 
in  the  margin.2  686  S.  W.  2d  118,  123  (Tex.  Grim.  App.  1984). 


Fourteenth  Amendments.  See  Gregg  v.  Georgia,  428  U.  S.  153,  231  (1976) 
(MARSHALL,  J.,  dissenting);  Furman  v.  Georgia,  408  U.  S.  238,  314  (1972) 
(MARSHALL,  J.,  concurring). 

2  The  judge  charged  the  jury  as  follows: 

"  *Now,  if  you  find  from  the  evidence  beyond  a  reasonable  doubt  that  .  .  . 
the  Defendant,  Darryl  Elroy  Stewart,  did  while  in  the  course  of  committing  or 
attempting  to  commit  burglary  of  a  habitation,  .  .  .  intentionally  caused  [sic] 
the  death  of  [the  victim]  by  shooting  her  with  a  gun,  then  you  will  find  the 
Defendant  guilty  of  Capital  Murder,  as  charged  in  the  Indictment.  Or  if  you 


868  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

The  instructions  provided  the  jury  with  two  theories  of  capital 
murder.  First,  the  jury  could  find  Stewart  guilty  of  having  inten- 
tionally shot  the  victim  himself.  Alternatively,  the  jury  could 
find  the  following  series  of  facts:  that  Stewart  conspired  to  commit 
burglary;  that  the  murder  was  committed  by  Kelly  in  the  course  of 
the  burglary;  that  Stewart  was  intentionally  aiding  Kelly  in  the 
execution  of  the  burglary  at  the  time  that  Kelly  committed  the 
murder;  and  that  the  murder  was  an  offense  that  "should  have 
been  anticipated"  as  a  result  of  the  conspiracy.  Either  of  the  two 
findings  would  support  a  verdict  of  guilty  of  capital  murder. 

The  jury  returned  a  verdict  of  guilty.  Defense  counsel  re- 
quested that  the  jury  be  instructed  to  specify  upon  which  of  the 
two  murder  offenses  it  had  convicted  Stewart,  but  the  trial  judge 
denied  the  request.  The  trial  proceeded  to  the  sentencing  phase, 
and  petitioner  was  sentenced  to  die. 

Ill 

Under  the  Texas  capital  murder  statute,  a  murder  does  not  con- 
stitute capital  murder  merely  because  it  was  committed  in  the 
course  of  a  burglary  or  other  specified  felony.  The  statute  explic- 
itly provides  that  the  murder  must  have  been  committed  "inten- 
tionally" in  the  course  of  the  other  felony.  Tex.  Penal  Code  Ann. 
§19.03(a)(2)  (Supp.  1985).  In  theory,  therefore,  a  person  cannot 
be  required  to  face  the  death  penalty  without  having  acted  with  an 


find  from  the  evidence  beyond  a  reasonable  doubt  that  .  .  .  Kelvin  Kelly  and 
Darryl  Elroy  Stewart  entered  into  a  conspiracy  to  burglarize  the  habitation 
.  .  .  ,  and  that  pursuant  thereto  they  did  carry  out  or  attempt  to  carry  out 
such  conspiracy  to  commit  burglary,  and  while  in  the  course  of  committing 
such  burglary,  if  any,  Kelvin  Kelly  did  intentionally  cause  the  death  of  [the 
victim]  by  shooting  her  with  a  gun  and  that  the  Defendant,  Darryl  Elroy 
Stewart,  pursuant  to  said  conspiracy,  if  any,  with  the  intent  to  promote,  as- 
sist, or  aid  Kelvin  Kelly  in  the  commission  or  attempted  commission  of  the 
said  burglary,  then  and  there,  at  the  time  of  the  shooting,  if  any,  was  acting 
with  and  aiding  Kelvin  Kelly  in  the  execution  or  attempted  execution  of  said 
burglary,  and  that  the  shooting  of  [the  victim]  followed  in  the  execution  of  the 
conspiracy  and  in  furtherance  of  the  unlawful  purpose  of  Kelvin  Kelly  and 
Darryl  Elroy  Stewart  to  commit  the  burglary,  and  that  the  shooting  of  [the 
victim]  was  an  offense  that  should  have  been  anticipated  as  a  result  of  the 
carrying  out  of  the  conspiracy,  then  you  will  find  the  Defendant,  Darryl  Elroy 
Stewart,  guilty  of  Capital  Murder  as  charged  in  the  indictment/  "  686  S.  W. 
2d,  at  123-124. 


ORDERS  869 

866  MARSHALL,  J. ,  dissenting 

intent  to  kill.  Ironically,  it  was  this  reading  of  the  statute  that 
led  this  Court,  in  Enmund,  to  number  Texas  among  the  States 
that  did  not  permit  a  capital  sentence  to  be  imposed  upon  a  person 
convicted  only  of  felony  murder.  458  U.  S.,  at  790,  n.  7. 

The  Enmund  Court's  assessment,  however,  did  not  take  into 
account  the  Texas  "law  of  parties."  Under  that  law,  a  person  can 
be  punished  for  an  offense  committed  by  another  if  he  is  "crimi- 
nally responsible"  for  the  other  person.  Tex.  Penal  Code  Ann. 
§7.01(a)  (1974).  The  "criminal  responsibility"  of  person  A  arises 
if  A  conspires  to  commit  one  felony  and,  in  furtherance  of  that  un- 
lawful purpose,  a  co-conspirator  in  the  first  felony  commits  a  sec- 
ond offense  that  "should  have  been  anticipated"  as  a  result  of  the 
conspiracy.  The  statute  explicitly  provides  that  A  is  guilty  of  the 
second  offense  even  "though  having  no  intent  to  commit  it."  Tex. 
Penal  Code  Ann.  §  7.02(b)  (1974);  see  Ruiz  v.  State,  579  S.  W.  2d 
206,  209  (1979)  ("[S]ection  7.02(b)  .  .  .  eliminates  any  necessity  on 
the  part  of  the  State  to  prove  the  appellant  had  any  intent  to 
kill").  If  the  first  offense  is  burglary,  and  the  co-conspirator's 
second  offense  happens  to  be  murder,  then  A  may  be  deemed  to 
have  committed  capital  murder — even  though  the  capital  murder 
statute  requires  that  the  murder  be  committed  intentionally  in  the 
course  of  a  felony.  The  vulnerability  of  A  to  a  capital  charge 
under  these  circumstances,  therefore,  is  entirely  dependent  on  the 
acts  of  his  co-conspirator;  A's  own  criminal  accountability  is  not 
entirely  within  his  control.  In  this  application  of  the  Texas  stat- 
utes, every  intent  element  that  would  normally  guard  against  a 
capital  charge  for  one  who  did  not  kill  or  intend  to  kill  can  be 
neatly  circumvented  and  substituted  with  the  fiction  of  vicarious 
intent.  This  is  no  mere  theoretical  quirk  in  state  law;  it  is  pre- 
cisely the  train  of  logic  that  quite  possibly  led  to  the  death  sen- 
tence in  this  case. 

The  entire  conduct  of  petitioner's  trial  operated  to  buttress  the 
prejudice  created  by  the  State's  reliance  on  this  illusory  edifice  of 
intent.  For  example,  every  juror  who  ended  up  on  petitioner's 
panel  had  stated  in  voir  dire  that  he  or  she  could  find  a  non- 
triggerman  guilty  of  capital  murder  and  could  impose  the  death 
sentence,  even  if  the  defendant  had  no  specific  intent  to  kill  or  to 
cause  a  killing.3  Moreover,  when  the  defense  attorney  attempted 


3  Petitioner  was   sentenced  before  this   Court  issued  its  decision  in  En- 
mund.    Petitioner  has  not  made  it  clear  whether  defense  counsel  moved  to 


870  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

to  explain  to  the  jury  that  the  law  of  parties— that  is,  vicarious  in- 
tent— is  not  applicable  to  sentencing  decisions,  the  trial  court  sus- 
tained the  prosecutor's  objection  on  the  ground  that  counsel  had 
misstated  the  law.  Further,  the  judge  did  not  instruct  the  jury 
that  at  the  sentencing  stage  it  was  obliged  to  consider  mitigating 
circumstances,  such  as  the  possibility  that  Stewart  played  a  rela- 
tively minor  role  in  the  murder.4  At  every  step  of  the  way,  one 
or  more  of  these  factors  contributed  to  the  likelihood  that  the  jury 
failed  to  understand  that  it  could  not  rely  on  vicarious  intent  to 
determine  whether  a  defendant  deserves  to  die. 

Respondent  contends  that  any  deficiency  in  the  jury's  consider- 
ation of  intent  was  cured  at  the  sentencing  phase.  The  judge's 
charge  to  the  jury  made  it  clear  that  imposition  of  the  death  sen- 
tence would  be  contingent  upon  a  jury  finding  that  "the  conduct  of 
the  defendant  that  caused  the  death  of  the  deceased  was  commit- 
ted deliberately  and  with  the  reasonable  expectation  that  the 
death  of  the  deceased  or  another  would  result."  See  Tex.  Code 
Grim.  Proc.  Ann.,  Art.  37.071(b)(l)  (Vernon  1981).  But  the 
deliberateness  of  a  burglary  simply  cannot  be  equated  with  an  in- 
tent to  kill.  Moreover,  it  seems  that  the  judge  informed  the  jury, 
over  defense  objection,  that  the  conduct  which  must  be  found  to 
be  deliberate  as  a  prerequisite  to  the  death  sentence  includes  the 
conduct  of  the  triggerman,  as  attributed  to  the  defendant  through 
the  law  of  parties.  Thus,  the  "individualized  consideration"  of  the 


strike  the  panel  on  the  basis  of  its  expressed  willingness  to  impose  death  in 
the  absence  of  intent.  Even  if  he  did  not,  however,  the  Enmund  claim  -was 
preserved  by  counsel's  request  for  a  specification  of  the  offense  on  which  peti- 
tioner was  convicted,  his  unsuccessful  attempt  to  state  to  the  jury  that  the 
law  of  parties  does  not  apply  at  sentencing,  and  other  related  objections  made 
at  trial. 

4  Petitioner  argues  that  this  failure  of  the  trial  court  to  instruct  the  jury 
that  it  must  consider  mitigating  circumstances  violates  Eddings  v.  Okla- 
homa, 455  U.  S.  104  (1982),  in  which  the  Court  held  that  a  State  may  not  pre- 
clude the  sentencer  from  considering  mitigating  circumstances.  Id.t  at 
113—114.  Whether  Eddings  requires  such  instructions  in  all  cases  has  not 
been  explicitly  decided.  In  this  case,  however,  the  lack  of  instruction  con- 
cerning the  jury's  obligation  to  consider  mitigating  factors  is  particularly  trou- 
bling, because  the  determination  that  the  jury  was  expected  to  make  at  sen- 
tencing was  strikingly  similar  to  the  findings  it  had  already  made  at  the  guilt 
phase.  Without  guidance  from  the  judge,  it  is  quite  possible  that  the  jury  be- 
lieved the  death  sentence  to  be  an  automatic  result  of  the  conviction. 


ORDERS  871 

866  MARSHALL,  J.,  dissenting 

defendant's  own  culpability,  required  by  Lockett  v.  Ohio,  438 
U.  S.  586,  605  (1978),  was  entirely  neglected.  Nor  can  the  con- 
stitutional demand  for  culpable  intent  be  satisfied  by  the  jury's 
finding  that  there  was  a  reasonable  expectation  that  death  would 
result  from  the  burglary.  Such  a  finding  does  not  even  purport  to 
be  a  measure  of  "personal  responsibility  and  moral  guilt,"  with- 
out which  a  defendant  cannot  be  held  accountable  with  his  life. 
Enmund  v.  Florida,  458  U.  S.,  at  801. 

IV 

This  case  differs  from  Enmund  in  only  one  pertinent  respect. 
In  Enmund,  the  only  evidence  implicating  the  defendant  was  an 
inference  that  he  was  waiting  near  the  scene  of  the  crime  in  order 
to  help  the  principal  perpetrators  escape.  Id.,  at  788.  No  con- 
flicting evidence  tended  to  show  that  Enmund  may  have  been  the 
actual  killer.  Here,  in  contrast,  there  was  some  evidence  tending 
to  establish  Stewart  as  the  triggerman.  Nevertheless,  we  cannot 
be  certain  whether  the  jury  imposed  a  sentence  of  death  in  the 
absence  of  an  essential  factual  premise  or  not.  For  purposes 
of  determining  whether  the  Constitution  has  been  violated,  there- 
fore, we  simply  cannot  discount  the  grave  possibility  that  Stewart 
was  sentenced  to  death  without  the  mental  state  that  Enmund 
recognized  as  prerequisite  to  any  such  sentence.5  See  Sandstrom 
v.  Montana,  442  U.  S.  510,  517  (1979).  The  courts  should  not 
permit  unconstitutional  death  sentences  to  escape  meaningful 


6  This  Term,  the  Court  will  consider  whether  Enmund  requires  that  the 
jury  make  a  finding  of  intent,  or  whether  an  appellate  court  may  make  the 
requisite  finding  upon  review  of  the  evidence.  See  Bullock  v.  Lucas,  743  F. 
2d  244  (CAS  1984),  cert,  granted  sub  nom.  Cabana  v.  Bullock,  471  U.  S.  1052 
(1985).  If  this  Court  determines  in  Bullock  that  a  jury  finding  of  intent  is  re- 
quired, petitioner's  sentence  will  have  to  be  vacated.  Moreover,  even  if  this 
Court  resolves  Bullock  by  concluding  that  an  appellate  finding  of  intent  will 
suffice  under  Enmund,  petitioner's  sentence  should  still  be  vacated,  because 
such  a  finding  could  not  be  made  by  an  appellate  court  in  this  case.  Petition- 
er's jury  did  not  explicitly  convict  on  one  offense  or  the  other,  and  the  evi- 
dence supporting  an  intentional  murder  conviction  conflicts  with  the  evidence 
supporting  a  conviction  for  felony  murder.  Thus,  it  would  be  impossible  for 
an  appellate  court  to  divine  which  of  the  mutually  exclusive  sets  of  testimony 
was  accepted  by  the  jury  and  should  accordingly  be  examined  for  indications 
of  intent.  We  should  grant  this  petition  irrespective  of  Bullock. 


872  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

review  merely  because  one  can  conceive  of  an  alternative  theory 
under  which  the  execution  can  be  imagined  to  fall  within  the  terms 
of  this  Court's  demands.  The  obligation  of  the  courts  is  especially 
compelling  here,  because  the  State  clearly  had  the  option  of  elimi- 
nating any  doubt  on  the  issue  by  charging  only  the  intentional 
murder  offense  and  thus  forestalling  any  Enmund  problem.  At 
least  the  State  might  have  refrained  from  objecting  to  the  defense 
counsel's  attempts  to  inform  the  jury  regarding  the  inapplicability 
of  the  law  of  parties  at  the  sentencing  phase.  One  cannot  help 
but  wonder  why  the  State  did  not  do  anything  to  reduce  the  confu- 
sion, if  it  is  indeed  as  confident  as  it  claims  to  be  that  the  jury's 
finding  of  guilt  was  based  solely  on  intentional  murder. 

The  likelihood  that  Stewart  was  convicted  and  sentenced  to 
death  on  a  theory  of  vicarious  intent  requires  that  Enmund  be  our 
guide  in  evaluating  the  legal  claims  put  forward  by  petitioner. 
Like  Enmund,  Stewart  has  been  sentenced  to  death  "in  the  ab- 
sence of  proof"  that  he  Dialled  or  attempted  to  kill,"  or  that  he  "in- 
tended or  contemplated  that  life  would  be  taken."  458  U.  S.,  at 
801.  Some  disputed  evidence  suggested  that  Stewart  had  such 
intent,  but  we  have  no  proof  thereof,  and  we  cannot  tell  from  the 
verdict  whether  the  jury  so  found. 


Although  this  Court  upheld  the  Texas  capital  sentencing  scheme 
against  certain  challenges  in  Jurek  v.  Texas,  428  U.  S.  262  (1976), 
petitioner's  case  demonstrates  that  the  statute  must  be  measured 
against  a  different  standard  when  the  State  seeks  to  execute  one 
convicted  of  felony  murder.  In  this  context,  the  statute  is  wholly 
inadequate  to  meet  the  constitutional  demands  articulated  in  En- 
mund, because  it  does  not  ensure  that  the  ultimate  sentence  will 
be  reserved  for  those  who  have  intended  to  kill.  Quite  simply, 
that  is  what  Enmund  demands,  and  what  the  Eighth  and  Four- 
teenth Amendments,  at  a  minimum,  require.  I  would  grant  the 
petition,  vacate  the  sentence,  and  remand  for  further  proceedings. 

No.  84-6589.  BROFFORD  v.  MORRIS,  SUPERINTENDENT, 
SOUTHERN  OHIO  CORRECTIONAL  FACILITY.  C.  A.  6th  Cir.  Cer- 
tiorari  denied.  JUSTICE  BRENNAN  and  JUSTICE  MARSHALL 
would  grant  certiorari.  Reported  below:  751  F.  2d  845. 

No.  84-6660.  BECK  v.  GEORGIA.  Sup.  Ct.  Ga.  Certiorari 
denied.  JUSTICE  BRENNAN  and  JUSTICE  MARSHALL  would  grant 
certiorari.  Reported  below:  254  Ga.  51,  326  S.  E.  2d  465. 


ORDERS  873 

474  U.  S.  October  7,  1985 

No.  85-5094.  BAILEY  v.  DELAWARE.  Sup.  Ct.  Del.  Certio- 
rari  denied.  JUSTICE  BRENNAN  and  JUSTICE  MARSHALL  would 
grant  certiorari.  Reported  below:  490  A.  2d  158. 

No.  84-6668.     THOMAS  v.  UNITED  STATES; 

No.  84-6673.     THOMAS  v.  UNITED  STATES;  and 

No.  84-6872.     THOMAS  v.  UNITED  STATES.     C.  A.  D.  C.  Cir. 

Certiorari  denied.      JUSTICE  MARSHALL  would  grant  certiorari. 

Reported  below:   No.    84-6668,   243   U.  S.   App.    D.  C.    349,    753 

F.  2d  167;  No.  84-6673,  243  U.  S.  App.  D.  C.  348,  753  F.  2d  166; 

No.  84-6872,  245  U.  S.  App.  D.  C.  234,  759  F.  2d  960. 

No.  84-6980.  WHITLEY  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  JUSTICE  MARSHALL  would  grant  certiorari. 
Reported  below:  759  F.  2d  327. 

No.  85-5045.  GROZA  v.  VETERANS  ADMINISTRATION  ET  AL. 
C.  A.  9th  Cir.  Certiorari  denied.  JUSTICE  MARSHALL  would 
grant  certiorari.  Reported  below:  755  F.  2d  935. 

No.  84-6864.  BUSBY  v.  LOUISIANA.  Sup.  Ct.  La.  Certiorari 
denied.  Reported  below:  464  So.  2d  262. 

JUSTICE  MARSHALL,  with  whom  JUSTICE  BRENNAN  and  JUS- 
TICE BLACKMUN  join,  dissenting. 

Once  again  this  Court  has  declined  to  correct  an  error  of  con- 
stitutional magnitude  with  a  defendant's  life  in  the  balance.  The 
petitioner's  death  sentence  was  unconstitutionally  imposed  under 
last  Term's  decision  in  Caldwell  v.  Mississippi,  472  U.  S.  320 
(1985),  and  this  Court's  refusal  to  vacate  that  sentence  is  an  un- 
warranted departure  from  procedures  that  we  follow  routinely  in 
the  most  insignificant  case. 

I 

The  petitioner  was  convicted  of  first-degree  murder.  At  the 
sentencing  phase  of  his  trial,  his  counsel  attempted  to  impress 
upon  the  jury  the  significance  of  its  role,  in  light  of  the  growing 
number  of  executions  in  Louisiana  and  the  Nation  as  a  whole. 
Counsel  admonished  the  jurors  that,  should  they  decide  upon  the 
death  penalty,  they  should  "  'give  it  with  the  appreciation  that  it'll 
be  carried  out.'"  464  So.  2d  262,  266  (La.  1985).  The  prosecutor 
responded  by  arguing  to  the  jury: 

"  'Though  it's  difficult  to  stand  before  you  ladies  and  gentle- 
men and  ask  you  to  consider  imposing  upon  anyone  the  pen- 


874  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

alty  of  death,  but  in  order  to  make  your  task  easier,  we'll 
state  for  you  that  first  of  all,  you  have  a  solemn  obligation 
to  live  up  to  your  oath.  Second  of  all,  that  whatever  you  de- 
cide will  be  recommendations —and  recommendations  to  the 
Judge,  for  the  Judge  to  impose  the  death  penalty.  It  will  be 
the  Judge  that  sentences  this  defendant  to  whatever  the  sen- 
tence might  be.  You  make  recommendations.'"  Ibid. 

The  jury  sentenced  petitioner  to  death. 

II 

After  the  Louisiana  Supreme  Court  had  affirmed  petitioner's 
conviction  and  death  sentence,  and  after  his  petition  for  certiorari 
had  been  filed,  this  Court  decided  CaldwelL*  There,  the  Court 
held  that  "it  is  constitutionally  impermissible  to  rest  a  death  sen- 
tence on  a  determination  made  by  a  sentencer  who  has  been  led  to 
believe  that  the  responsibility  for  deterniining  the  appropriateness 
of  the  defendant's  death  rests  elsewhere."  472  U.  S.,  at  328-329. 
In  Caldwell,  the  prosecutor  argued  to  the  jury  that  the  State 
Supreme  Court  would  automatically  re  vie  w  the  death  sentence. 
This  Court  noted  that  the  jury  might  not  understand  the  limits 
on  appellate  review,  and  might  conclude  that  the  ultimate  deter- 
mination of  the  appropriateness  of  a  death  sentence  for  that  de- 
fendant would  lie  with  the  court.  Id.,  at  330-331.  Furthermore, 
whether  or  not  the  jury  was  misled  as  to  the  appellate  court's 
function,  it  might  decide  to  "delegate"  its  responsibility  to  the 
court.  Id.,  at  332. 

In  the  present  case,  we  need  not  speculate  about  the  misleading 
nature  of  the  prosecutor's  argument,  for  it  flatly  misstated  Louisi- 
ana law.  In  Louisiana,  a  jury's  decision  in  favor  of  death  is  bind- 
ing on  the  court.  La.  Code  Crim.  Proc.  Ann.,  Art.  905.8  (West 
1984).  Thus,  the  prosecutor's  argument  in  this  case  was  not  an 
"accurate  statement  of  a  potential  sentencing  alternative,"  as  in 
California  v.  Ramos,  463  U.  S.  992,  1009  (1983);  cf.  Caldwell, 
supra,  at  342  (O'CONNOR,  J.,  concurring  in  part  and  concurring 
in  judgment).  Rather,  the  prosecutor's  argument  urged  the  jury 


*This  chronology  explains  petitioner's  failure  to  raise  the  Caldwell  violation 
in  his  petition  for  certiorari.  This  Court,  of  course,  may  correct  a  plain  error 
not  presented  in  the  petition  for  certiorari.  Washington  v.  Davis,  426  U.  S. 
229,  238  (1976).  The  Louisiana  Supreme  Court  expressly  decided  the  issue, 
so  there  is  no  jurisdictional  bar  to  our  considering  it. 


ORDERS  875 

474  U.  S.  October  7,  1985 

"to  minimize  the  importance  of  its  role,"  472  U.  S.,  at  333,  with 
statements  that  were  both  improper  under  Caldwell  and  factually 
inaccurate. 

Although  the  Louisiana  Supreme  Court  acknowledged  that  the 
prosecutor's  remarks  were  "troublesome,"  464  So.  2d,  at  266,  it 
concluded  that  the  jury  was  not  misled.  The  court  noted  that  the 
trial  judge  had  remarked  to  the  jury,  at  the  beginning  of  the  sen- 
tencing phase,  that  the  jury  "is  given  the  authority  to  make  a 
binding  recommendation  to  the  trial  judge  as  to  the  sentence." 
Ibid.  The  judge  had  also  stated  that  he  would  impose  life  impris- 
onment if  the  jury  could  not  reach  a  unanimous  recommendation. 
Id.,  at  267. 

Those  statements  are  inadequate  to  cure  the  prosecutor's  inac- 
curate remarks.  The  judge  did  not  correct  the  prosecutor's  state- 
ments in  his  charge,  nor  did  he  acknowledge  the  binding  effect  of 
the  jury's  decision.  Indeed,  he  compounded  the  error  by  telling 
the  jurors  that  it  was  their  duty  "  'to  make  your  recommendation 
as  to  the  sentence  that  the  Court  should  impose.'"  Ibid.  Be- 
cause the  prosecutor  had  affirmatively  and  unambiguously  in- 
formed the  jury  that  the  ultimate  responsibility  for  the  decision 
rested  with  the  judge,  the  jury  could  easily  have  believed  that 
its  decision  to  impose  the  death  penalty  was  not  automatically 
binding.  In  this  situation,  one  cannot  possibly  conclude  that  the 
improper  argument  "had  no  effect  on  the  sentencing  decision," 
Caldwell,  supra,  at  341.  Petitioner's  death  sentence,  therefore, 
cannot  stand. 

Ill 

The  death  sentence  in  this  case  was  imposed  in  violation  of  the 
Eighth  and  Fourteenth  Amendments  as  interpreted  in  Caldwell, 
supra.  Our  usual  practice  when  an  intervening  decision  of  the 
Court  may  affect  a  lower  court's  decision  is  to  grant  the  petition, 
vacate  the  judgment  or  sentence  as  appropriate,  and  remand  for 
further  consideration  in  light  of  the  intervening  case.  See,  e.  g., 
Wainwright  v.  Henry,  463  U.  S.  1223  (1983).  Because  the  Court 
has  declined  to  follow  our  general  practice,  with  such  enormous 
consequences  for  the  petitioner,  I  dissent. 

No.  84-6866  (A-923).  BREEZE  v.  UNITED  STATES.  C.  A.  4th 
Cir.  Application  for  release  and  motion  for  stay  of  mandate,  ad- 
dressed to  JUSTICE  BRENNAN  and  referred  to  the  Court,  denied. 
Certiorari  denied.  Reported  below:  755  F.  2d  930. 


876  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

No.  84-6873.  PATTEN  v.  FLORIDA.  Sup.  Ct.  Fla.  Certiorari 
denied.  Reported  below:  467  So.  2d  975. 

JUSTICE  BBENNAN,  dissenting. 

Adhering  to  my  view  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227  (1976),  I  would  grant  certiorari  and  vacate  the  judgment 
below  so  that  the  court  below  can  determine  the  sentence — other 
than  death— that  may  be  appropriate. 

JUSTICE  MARSHALL,  dissenting. 

I  continue  to  adhere  to  my  view  that  the  death  penalty  is  in  all 
circumstances  cruel  and  unusual  punishment  forbidden  by  the 
Eighth  and  Fourteenth  Amendments.  See  Gregg  v.  Georgia,  428 
U.  S.  153,  231  (1976)  (MARSHALL,  J.,  dissenting).  I  also  continue 
to  believe  that  the  death  penalty's  cruel  and  unusual  nature  is 
made  all  the  more  arbitrary  when  it  is  imposed  by  a  judge  in  the 
face  of  a  jury  determination  that  death  is  an  inappropriate  pun- 
ishment. See  Jones  v.  Alabama,  470  U.  S.  1062,  1063  (1985) 
(MARSHALL,  J.,  dissenting  from  denial  of  certiorari);  Spaziano 
v.  Florida,  468  U.  S.  447,  481-490  (1984)  (STEVENS,  J.,  dissent- 
ing). However,  even  were  I  to  believe  that  the  death  penalty 
could  constitutionally  be  imposed  under  certain  circumstances  and 
that  a  jury  decision  for  life  could  be  accorded  mere  advisory 
status,  I  would  grant  certiorari  in  this  case  to  decide  whether  the 
Double  Jeopardy  Clause  bars  the  State  from  forcing  a  defendant 
to  face  a  second  sentencing  jury  even  though  the  presumptive 
validity  of  his  first  jury's  life  recommendation  has  never  been 
overcome. 

I 

Petitioner  Robert  Patten  was  convicted  of  first-degree  murder, 
and  the  State  sought  the  death  penalty.  During  subsequent  sen- 
tencing deliberations,  the  jury  advised  the  trial  judge  that  they 
were  deadlocked,  6  to  6;  the  note  concluded:  <fWhat  now?"  Over 
petitioner's  objections,  the  judge  responded  by  giving  an  Allen 
charge  encouraging  further  deliberations.1  After  continued  de- 
liberations, the  jury  returned  with  a  7-to-5  recommendation  for 
death.  The  court  imposed  the  death  sentence.  On  appeal,  the 
Florida  Supreme  Court  affirmed  petitioner's  conviction.  467 

1  Allen  v.  United  States,  164  U.  S.  492,  501-502  (1896). 


ORDERS  877 

876  MARSHALL,  J.,  dissenting 

So.  2d  975  (1985).  It  emphasized,  however,  that  tinder  Florida 
law,  "if  seven  jurors  do  not  vote  to  recommend  death,  then  the 
recommendation  is  life  imprisonment."  Rose  v.  State,  425  So.  2d 
521,  525  (Fla.  1982),  cert,  denied,  461  U.  S.  909  (1983).  The  court 
consequently  found  the  giving  of  the  Allen  charge  improper  and 
vacated  the  death  sentence.  At  this  point,  though,  rather  than 
instructing  the  trial  judge  to  determine  whether  it  would  be  ap- 
propriate to  enter  a  death  sentence  regardless  of  the  jury's  action, 
the  court  chose  to  remand  the  case  to  the  trial  court  for  a  new  sen- 
tencing proceeding  before  a  jury.  In  his  motion  for  rehearing, 
petitioner  urged  that  the  Double  Jeopardy  Clause  barred  a  second 
sentencing  proceeding.  That  motion  was  denied. 

II 

In  Bullington  v.  Missouri,  451  U.  S.  430  (1981),  this  Court  held 
that  because  Missouri's  capital  sentencing  proceeding  was  com- 
parable to  a  trial,  in  which  a  life  sentence  constituted  a  determina- 
tion that  the  prosecution  had  failed  to  prove  its  case,  the  Double 
Jeopardy  Clause  barred  the  State  from  subjecting  a  defendant 
who  had  received  a  life  sentence  in  his  first  trial  to  the  ordeal  of 
a  second  sentencing  proceeding  after  his  conviction  had  been  re- 
versed. In  Arizona  v.  Rumsey,  467  U.  S.  203  (1984),  where  a 
life  sentence  had  been  imposed  by  a  judge  rather  than  a  jury,  the 
Court  found  that  the  Double  Jeopardy  Clause  barred  resentencing 
even  though  the  judge's  decision  to  grant  life  had  been  based  upon 
what  was  later  held  to  be  a  misinterpretation  of  state  law.  "[A]n 
acquittal  on  the  merits  by  the  sole  decisionmaker  in  the  proceed- 
ing is  final  and  bars  retrial  on  the  same  charge."  Id.,  at  211. 

In  Florida,  the  jury  is  not  the  sole  decisionmaker  in  the  sentenc- 
ing proceedings;  the  trial  judge  has  the  power  to  override  a  jury's 
recommendation  for  life.  See  Spaziano  v.  Florida,  supra.  Yet 
the  defendant  who  has  persuaded  a  jury  to  reject  the  State's  claim 
that  he  deserves  to  die  has  nonetheless  won  a  significant  victory, 
for  Florida  has  severely  limited  the  trial  judge's  power  to  over- 
ride a  life  recommendation.  In  Tedder  v.  State,  322  So.  2d  908 
(1975),  the  Florida  Supreme  Court  held  an  override  to  be  appro- 
priate only  where  the  "facts  suggesting  a  sentence  of  death  [are] 
so  clear  and  convincing  that  virtually  no  reasonable  person  could 
differ."  Id.,  at  910;  accord,  Odom  v.  State,  403  So.  2d  936,  942 
(Fla.  1981),  cert,  denied,  456  U.  S.  925  (1982).  Thus,  while  the 
life  recommendation  of  a  Florida  jury  does  not  have  the  conclusive 


878  OCTOBER  TERM,  1985 

MARSHAIX,  J.,  dissenting  474  U.  S. 

effect  of  the  Missouri  jury's  decision  for  life  that  was  considered  in 
Bullington,  the  recommendation  is  presumed  final,  subject  to  re- 
versal only  where  "virtually  no  reasonable  person  could  differ." 
Because  a  Florida  jury's  life  recommendation  is  not  completely 
final,  this  Court  has  held  that  the  Double  Jeopardy  Clause  does 
not  bar  the  judge's  override  of  a  jury's  life  recommendation. 
Spaziano  v.  Florida,  supra.  However,  where  a  defendant  is  de- 
prived of  the  benefits  of  a  jury's  life  recommendation  without  any 
subsequent  finding  by  the  trial  judge  that  that  recommendation 
was  "clear [ly]  and  convincingQy]"  unreasonable,  I  believe  there 
to  be  a  double  jeopardy  bar  to  the  State's  demand  that  the  defend- 
ant convince  yet  another  jury  that  he  does  not  deserve  to  die.  If 
not  held  unreasonable,  a  jury's  life  recommendation  should  end  a 
Florida  defendant's  jeopardy  as  surely  as  a  life  verdict  ended  that 
of  the  Missouri  defendant  in  Bullington. 

Petitioner  was  deprived  of  a  jury's  life  recommendation  with- 
out any  court  having  found  that  advisory  verdict  unreasonable. 
Under  Florida  law,  a  6-to-6  vote  is  a  life  recommendation.      See 
Rose  v.  State,  supra,  at  525.     When  the  trial  judge  received  the 
jury's  note  indicating  that  it  was  deadlocked  6  to  6,  there  was 
therefore  nothing  left  for  him  to  do  but  recall  the  jury  and  apply 
the  Tedder  standard  to  its  life  recommendation.      I  can  scarcely 
believe  that  the  trial  judge  would  have  overridden  such  a  recom- 
mendation in  this  case;  had  he  done  so,  he  doubtless  would  have 
been  reversed  on  appeal.2    But  instead,  the  trial  judge  altered  the 
verdict  by  giving  an  Allen  charge.     Then,  even  while  holding  the 
judge  to  have  erred  in  giving  the  charge,  the  Florida  Supreme 
Court  proceeded  to  disregard  the  fact  that  the  jury's  deadlock 
was  a  finding  for  defendant  on  the  issue  of  death.     The  Supreme 
Court's  decision  to  remand  was  not  based  upon  any  finding  that  a 
life  sentence  was  unreasonable.      The  Supreme  Court  remanded 
only  because  the  jury's  report  of  a  6-to-6  deadlock  had  not  been 
contained  in  a  formal  recommendation.      Since  I  do  not  believe 
that  this  adherence  to  formalism  is  consistent  with  the  double 
jeopardy  concerns  implicated  by  the  Supreme  Court's  demand  that 
petitioner  convince  yet  another  jury  that  he  does  not  deserve  to 
die,  I  must  dissent  from  this  Court's  refusal  to  hear  this  case. 


2  Indeed,  by  "directing]  the  trial  court's  attention"  to  Eddings  v.  Okla- 
homa, 455  U.  S.  104  (1982),  "and  its  possible  application  to  the  facts  of  this 
case/'  the  Florida  Supreme  Court  suggested  its  concern  that  the  trial  judge 
had  failed  to  consider  evidence  militating  in  favor  of  a  life  sentence.  467  So. 
2d  975,  980  (1985). 


ORDERS  879 

474  U.  S.  October  7,  1985 

No.  84-6982.  BURR  v.  FLORIDA.  Sup.  Ct.  Fla.  Certiorari 
denied.  Reported  below:  466  So.  2d  1051. 

JUSTICE  MARSHALL,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

This  petition  presents  the  question  whether  the  sentencing  jury 
in  a  capital  case  may  be  prohibited  from  taking  into  account  its 
own  nagging  doubts  about  the  defendant's  guilt  as  it  considers 
whether  the  defendant  deserves  to  die.  The  Supreme  Court  of 
Florida  has  squarely  resolved  that  question  in  the  affirmative,  de- 
spite the  clear  message  of  Lockett  v.  Ohio,  438  U.  S.  586  (1978), 
and  Eddings  v.  Oklahoma,  455  U.  S.  104  (1982),  that  a  capital  de- 
fendant is  entitled  to  have  the  jury  consider  "any  of  the  circum- 
stances of  the  offense  that  the  defendant  proffers  as  a  basis  for  a 
sentence  less  than  death."  Lockett,  supra,  at  604. 

Even  if  I  accepted  the  prevailing  view  that  the  death  penalty 
can  constitutionally  be  imposed  under  certain  conditions,  I  would 
grant  certiorari  in  this  case  to  consider  the  grave  constitutional 
question  it  presents.  Today's  decision  lets  stand  a  ruling  that 
clearly  "creates  the  risk  that  the  death  penalty  will  be  imposed 
in  spite  of  factors  which  may  call  for  a  less  severe  penalty." 
Lockett,  supra,  at  605  (opinion  of  BURGER,  C.  J.),  quoted  in 
Eddings,  supra,  at  118  (O'CONNOR,  J.,  concurring). 


Petitioner,  Charlie  Burr,  was  charged  with  the  murder  of  a 
convenience-store  clerk  during  a  robbery  of  the  store.  At  trial, 
the  State's  key  witness  was  Burr's  girlfriend,  Domita  Williams, 
who  testified  that  she  had  been  waiting  for  Burr  outside  the  store 
when  she  heard  a  shot  and  then  saw  Burr  come  out.  The  State 
provided  some  circumstantial  evidence  in  corrob oration.  The 
following  day,  however,  Williams  took  the  stand  for  the  defense 
and  recanted  her  testimony  of  the  previous  day.  This  time  she 
swore  that  she  had  not  been  with  Burr  at  all  on  the  morning  of  the 
murder,  and  recited  a  different  account  of  her  actions  that  morn- 
ing. The  defense  produced  witnesses  to  support  this  testimony, 
including  an  eyewitness  who  placed  Williams  elsewhere  at  the 
time  of  the  murder.  The  defense  attempted  to  establish  that 
Williams'  first  testimony  had  been  the  product  of  coercion  by 
the  prosecutor;  the  State,  in  turn,  attempted  to  show  that  her  sec- 
ond testimony  was  contrived  out  of  fear  of  petitioner.  Without 


880  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

Williams'  first  testimony,  the  State  would  not  have  had  a  case,  for 
while  the  State  introduced  evidence  implicating  Burr  in  similar 
robberies  of  other  convenience  stores,  it  adduced  no  other  evi- 
dence directly  linking  Burr  with  this  crime.  The  jury  returned  a 
verdict  of  guilty. 

At  the  sentencing  hearing,  defense  counsel  devoted  his  entire 
closing  argument  to  the  inconclusive  nature  of  the  evidence 
against  Burr.  Counsel  drove  home  to  the  jury  the  fact  of  Domita 
Williams'  recantation,  repeatedly  exhorting  each  juror  to  "ask 
yourself  .  .  .  ,  is  it  possible  that  I'm  recommending  death  for  an 
innocent  person?"  Suggesting  that  the  guilty  verdict  might  have 
been  based  on  the  evidence  of  the  other  robberies,  he  admonished 
the  jury,  "if  you  go  back  and  recommend  death  .  .  .  and  Mr.  Burr 
is  eventually  electrocuted  and  put  to  death,  then  it's  going  to  be  a 
little  too  late  for  the  truth  to  come  out  .  .  .  ."  He  concluded, 
"don't  make  a  recommendation  where  a  man  is  going  to  die  when 
he  may  not  have  even  committed  the  crime." 

The  jury  recommended  a  sentence  of  life  imprisonment.  The 
trial  judge,  however,  overrode  this  recommendation  and  sen- 
tenced petitioner  to  death,  having  identified  three  aggravating 
circumstances  and  nothing  in  mitigation.  Petitioner  deduced,  and 
argued  on  appeal,  that  the  jury's  recommendation  of  life  had  been 
based,  legitimately,  on  residual  doubt  of  Burr's  guilt.  The  Flor- 
ida Supreme  Court  rejected  this  argument,  concluding  that  "a 
'convicted  defendant  cannot  be  "a  little  bit  guilty."'"  466  So.  2d 
1051,  1064  (1985),  quoting  Buford  v.  State,  403  So.  2d  943,  953 
(Fla.  1981),  cert,  denied,  454  U.  S.  1164  (1982). 

II 

Implicit  in  the  Florida  Supreme  Court's  decision  is  an  assump- 
tion about  the  equation  of  finality  and  truth  that  transgresses  law 
and  intuition  alike.  For  our  legal  system  is  no  pretender  to  abso- 
lute truth.  In  two  important  ways,  the  factfinding  process  falls 
short  of  that  ideal.  First,  the  beacon  of  the  truth-seeking  process 
in  criminal  cases  is  not  absolute  certainty,  but  the  "reasonable 
doubt"  standard,  which  has  eluded  definition  by  the  courts  for  cen- 
turies. See  9  J.  Wigmore,  Evidence  §2497  (J.  Chadbourn  rev. 
1981).  Attempts  at  such  a  definition  typically,  and  often  errone- 
ously, include  phrases  such  as  "substantial  doubt,  not  a  trivial 
doubt,"  Holland  v.  United  States,  209  F.  2d  516,  522  (CA10) 
aff 'd,  348  U.  S.  121  (1954),  and  "substantial,  .  .  .  real  doubt  "  Tay- 


ORDERS  881 

879  MARSHALL,  J.,  dissenting 

lor  v.  Kentucky,  436  U.  S.  478,  488  (1978).  Although  a  uniform 
definition  of  the  term  has  never  evolved,  it  is  clear  that  juries  are 
not  instructed  to  return  a  verdict  only  when  all  doubt  has  been 
eliminated.  Rather,  the  "reasonable  doubt"  standard  merely  at- 
tempts "to  exclude  as  nearly  as  possible  the  likelihood  of  an  erro- 
neous judgment."  Addington  v.  Texas,  441  U.  S.  418,  423  (1979). 
Hence,  "beyond  a  reasonable  doubt"  cannot  ensure  that  a  jury  will 
not  convict  a  defendant  without  foreclosing  all  possibility  of  inno- 
cence in  the  jurors'  own  minds. 

Moreover,  no  instruction  can  prevent  the  possibility  of  human 
error.  "[I]n  a  judicial  proceeding  in  which  there  is  a  dispute 
about  the  facts  of  some  earlier  event,  the  factfinder  cannot  acquire 
unassailably  accurate  knowledge  of  what  happened."  In  re  Win- 
ship,  397  U.  S.  358,  370  (1970)  (Harlan,  J.,  concurring).  Accord- 
ingly, the  institutions  of  criminal  justice  have  been  adjusted  in 
recognition  that  a  jury's  verdict  and  truth  are  not  unerringly 
synonymous.  Every  jurisdiction  provides  some  mechanism  for 
awarding  a  convicted  defendant  a  new  trial  on  the  basis  of  newly 
discovered  evidence.  If  a  convicted  defendant  can  produce  suffi- 
cient indication  that  the  jury's  finding  of  guilt  beyond  a  reasonable 
doubt  was  wrong,  the  institutional  need  for  finality  yields  to  the 
more  compelling  concerns  of  truth  and  fairness.  Thus,  the  "rea- 
sonable doubt"  foundation  of  the  adversary  method  attains  neither 
certainty  on  the  part  of  the  factfinder s  nor  infallibility,  and  accom- 
modations to  that  failing  are  well  established  in  our  society.  See 
also  Jackson  v.  Virginia,  443  U.  S.  307,  317-318  (1979)  (reversal 
of  jury  verdict  supported  by  insufficient  evidence).  In  the  capital 
sentencing  context,  the  consideration  of  possible  innocence  as  a 
mitigating  factor  is  just  such  an  essential  accommodation. 

Prominent  scholars  of  our  time  agree.  The  Model  Penal  Code 
absolutely  precludes  the  imposition  of  a  death  sentence  if  the  sen- 
tencer  is  satisfied  that,  "although  the  evidence  suffices  to  sustain 
the  verdict,  it  does  not  foreclose  all  doubt  respecting  the  defend- 
ant's guilt."  ALI,  Model  Penal  Code  §210.6(1),  p.  107  (1980). 
Three  Justices  of  this  Court  have  stated  that  the  possibility  of  an 
irrevocable  mistake  is  a  valid  reason  for  a  jury  to  conclude  that 
the  death  penalty  is  not  morally  justified.  Spaziano  v.  Florida, 
468  U.  S.  447,  488,  n.  34  (1984)  (STEVENS,  J.,  joined  by  BRENNAN 
and  MARSHALL,  JJ.,  concurring  in  part  and  dissenting  in  part); 
Heiney  v.  Florida,  469  U.  S.  920,  924  (1984)  (MARSHALL,  J.,  dis- 
senting). Finally,  two  Courts  of  Appeals  have  determined  that 


882  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

jurors  may  hold  a  genuine,  if  not  a  reasonable,  doubt  of  guilt  suffi- 
cient to  support  a  sentence  of  life.  Smith  v.  Wainwright,  741  F. 
2d  1248,  1255  (CA11  1984),  cert,  denied,  470  U.  S.  1087  (1985); 
Smith  v.  Balkcom,  660  F.  2d  573,  580-581  (CA5  1981),  cert, 
denied,  459  U.  S.  882  (1982). 

I  have  written  before  to  describe  the  subjective  personal  horror 
that  must  face  a  juror  who  contemplates  sentencing  a  man  to  die 
without  being  sure  of  his  guilt.  Heiney  v.  Florida,  supra,  at 
921-922.  But  there  is  an  additional  point  to  be  made:  that  per- 
mitting the  consideration  of  lingering  doubt  at  sentencing  is  objec- 
tively a  rational  and  consistent  element  of  our  system  of  criminal 
justice.  Like  postconviction  remedies  in  light  of  new  evidence, 
the  conscience  of  the  jury  serves  to  protect  against  irremediable 
errors  arising  in  that  gray  area  known  as  "reasonable  doubt." 
And  when  the  stakes  are  life  and  death,  the  Constitution  forbids 
the  closure  of  that  safety  valve,  as  surely  as  it  forbids  the  preclu- 
sion of  other  considerations  suggesting  that  a  convicted  defendant 
should  not  die.  See  Eddings  v.  Oklahoma,  455  U.  S.  104  (1982). 

The  defendant  who  has  been  condemned  to  die  will  not  reap  the 
benefits  of  postconviction  remedies  designed  to  compensate  for 
jury  fallibility  when  the  basis  for  such  relief  arises  long  after 
conviction.  His  only  protection  lies  in  the  consciences  of  the 
jurors,  for  only  they  know  the  degree  of  certainty  with  which  they 
voted  the  defendant  guilty.*  The  State  of  Florida  would  wrest 
from  the  jurors  their  only  way  of  expressing  their  lingering  doubts 
about  their  verdict,  and  from  the  defendant  his  only  hope  of 
vindication. 

Ill 

We  cannot  know  the  basis  for  a  jury's  recommendation  of  life,  as 
long  as  the  jury  is  not  required  to  supply  its  reasons.  Neverthe- 
less, in  petitioner's  case  we  do  know  several  relevant  things. 
First,  we  know  that  little,  if  any,  mitigating  evidence  other  than 
the  possibility  of  innocence  could  have  accounted  for  the  jury's 
sentence.  Second,  we  know  that  the  defense  counsel  rested  his 


*To  the  extent  that  a  jury  recommendation  of  life  based  on  doubt  can  be 
said  to  be  inconsistent  with  that  same  jury's  finding  of  guilt,  the  legitimacy  of 
the  guilty  verdict  itself  is  rendered  unreliable  and  therefore  constitutionally 
suspect.  The  remedy  for  such  a  defect  is  not  a  death  sentence,  but  a  new 
trial. 


ORDERS  883 

474  U.  S.  October  7,  1985 

plea  for  his  client's  life  solely  on  the  striking  inconclusiveness  of 
the  evidence  against  petitioner,  conceding  that  this  argument  had 
not  carried  the  day  at  the  guilt  phase,  but  imploring  the  jurors  to 
consider  it  as  a  matter  of  conscience  at  sentencing.  Third,  we 
know  that  the  Supreme  Court  of  Florida  considered  petitioner's 
claim  on  its  merits,  without  questioning  the  factual  premise  of  the 
argument,  and  ruled  that  doubt  as  to  a  convicted  defendant's  guilt 
cannot  be  considered  as  a  factor  mitigating  against  the  death  sen- 
tence. This  determination  bars  consideration  of  a  factor  that  is 
both  relevant,  see  Eddings,  supra,  at  113-114,  and  reasonable, 
see  Tedder  v.  State,  322  So.  2d  908,  910  (Fla.  1975).  Under  these 
compelling  circumstances,  this  Court  should  not  shrink  from  cor- 
recting a  misguided  principle  of  law  that  so  surely  increases  the 
likelihood  that  innocent  people  will  go  to  their  deaths. 

Rather  than  bristle  at  a  superficial  inconsistency  between  a 
guilty  verdict  and  a  life  sentence  based  on  doubt,  we  should 
readily  acknowledge  that  a  juror  may  understand  the  law  to  de- 
mand less  than  the  conscience.  In  a  capital  case,  the  Eighth 
Amendment  does  not  tolerate  such  a  distinction. 

No.  84-7002.  DEL  VECCHIO  v.  ILLINOIS.  Sup.  Ct.  111.  Cer- 
tiorari  denied.  Reported  below:  105  111.  2d  414,  475  N.  E.  2d  840. 

JUSTICE  MARSHALL,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

Despite  this  Court's  demand  "for  reliability  in  the  determination 
that  death  is  the  appropriate  punishment  in  a  specific  case," 
Woodson  v.  North  Carolina,  428  U.  S.  280,  305  (1976),  the  Illinois 
Supreme  Court  found  there  to  be  no  error  in  the  admission  of  two 
confessions  at  petitioner's  capital  sentencing  hearing,  without  any 
inquiry  having  been  made  as  to  their  reliability.  Because  those 
confessions  had  been  obtained  in  connection  with  charges  to  which 
petitioner  had  long  before  pleaded  guilty,  the  court  found  peti- 
tioner precluded  from  challenging  their  voluntariness  later,  when 
he  was  fighting  for  his  life.  Even  were  I  to  believe  that  the  death 
penalty  could  constitutionally  be  imposed  under  certain  circum- 
stances, I  would  grant  certiorari  in  this  case  to  determine  whether 
the  Illinois  Supreme  Court's  decision  can  be  reconciled  with  "the 
standard  of  reliability  that  the  Eighth  Amendment  requires," 
Caldwell  v.  Mississippi,  472  U.  S.  320,  341  (1985).  See  Bare- 


884  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

foot  v.   Estelle,  463  U.  S.   880,   924-925   (1983)  (BLACKMUN,   J., 
dissenting).* 

I 

Petitioner  George  Del  Vecchio  was  convicted  in  1979  of  murder, 
rape,  deviate  sexual  assault,  and  burglary,  and  the  State  sought 
the  death  penalty.  At  his  capital  sentencing  hearing,  the  pros- 
ecutor urged  as  a  statutory  aggravating  factor  the  fact  that  in 
1965,  when  he  was  16  years  old,  petitioner  had  been  convicted 
upon  a  plea  of  guilty  to  charges  of  murder,  robbery,  and  at- 
tempted robbery.  The  prosecution  also  sought  to  introduce  two 
confessions  that  petitioner  had  made  to  those  previous  crimes; 
these  confessions,  made  to  a  police  officer  and  an  Assistant  Dis- 
trict Attorney  respectively,  contained  detailed  statements  as  to 
petitioner's  role  in  the  1965  crimes.  Petitioner  moved  to  suppress 
these  statements  at  the  sentencing  hearing  on  the  grounds  that 
they  had  been  induced  through  physical  and  psychological  coercion 
and  that  their  use  was  therefore  barred  by  the  Fifth  and  Four- 
teenth Amendments.  The  trial  court  denied  this  motion,  refusing 
even  to  conduct  a  hearing  on  it.  In  his  closing  argument,  the 
prosecutor  pointed  to  the  1965  confessions  as  evidence  that  peti- 
tioner was  a  career  criminal  who  did  not  deserve  to  live.  The 
jury  proceeded  to  find  two  aggravating  circumstances  and  no  miti- 
gating circumstances  sufficient  to  preclude  a  sentence  of  death. 
Petitioner  was  sentenced  to  die. 

In  his  appeal  to  the  Illinois  Supreme  Court,  petitioner  argued 
that  the  use  of  his  1965  confessions  without  a  hearing  as  to  their 
voluntariness  was  prejudicial  error.  The  court  rejected  this 
claim,  concluding: 

<r\Vhile  defendant  contests  the  voluntariness  of  his  inculpatory 
statement,  he  does  not  contend  that  the  guilty  plea  was  invol- 
untarily entered.  This  court  has  held  that  'a  constitutional 
right,  like  any  other  right  of  an  accused,  may  be  waived,  and 
a  voluntary  plea  of  guilty  waives  all  errors  or  irregularities 
that  are  not  jurisdictional.'  (People  v.  Brown  (1969),  41  111. 

*Petitioner  also  raises  a  substantial  claim  that  the  prosecutor's  summation 
at  trial  falsely  represented  to  the  jury  that  petitioner  would  eventually  be  eli- 
gible for  discretionary  parole  if  he  were  to  receive  a  life  sentence.  Such  inac- 
curate representations  may  well  have  "so  affect[ed]  the  fundamental  fairness 
of  the  sentencing  proceeding  as  to  violate  the  Eighth  Amendment,"  Caldwell 
v  MKSZSSIW,  472  U.  S  at  340,  and  had  this  Court  granted  certiorari,  this 
claim  would  have  merited  its  attention. 


ORDERS  885 

883  MARSHALL,  J.,  dissenting 

2d  503,  505  [,  244  N.  E.  2d  159,  160].)  Thus,  the  issue  was 
waived  by  the  voluntary  plea  of  guilty."  105  111  2d  414 
432-433,  475  N.  E.  2d  840,  849  (1985). 

II 

The  Illinois  Supreme  Court's  harsh  waiver  rule  stands  in  opposi- 
tion to  and  must  ultimately  give  way  to  the  constitutional  require- 
ment that  a  defendant  facing  a  death  sentence  be  given  an  oppor- 
tunity to  challenge  the  reliability  of  all  evidence  urged  by  the 
prosecution  in  support  of  that  sentence.  Although  this  Court  has 
on  occasion  been  divided  as  to  whether  this  requirement  is  rooted 
in  the  Due  Process  Clause  or  the  Eighth  Amendment,  compare 
Gardner  v.  Florida,  430  U.  S.  349,  358-360  (1977)  (plurality  opin- 
ion), with  id.,  at  362-364  (WHITE,  J.,  concurring  in  judgment),  a 
concern  for  reliability  has  been  one  of  the  central  "themes  .  .  .  re- 
iterated in  our  opinions  discussing  the  procedures  required  by  the 
Constitution  in  capital  sentencing  determinations,"  Zant  v.  Ste- 
phens, 462  U.  S.  862,  884  (1983).  See  Barefoot  v.  Estelle,  supra, 
at  924-925  (BLACKMUN,  J.,  dissenting).  This  concern  is  squarely 
implicated  by  the  introduction  of  confessions  whose  voluntariness 
has  never  been  determined. 

The  constitutional  bar  to  the  use  of  involuntary  confessions  in 
criminal  proceedings  is  based  in  part  upon  the  "strongly  felt  atti- 
tude of  our  society  that  important  human  values  are  sacrificed 
where  an  agency  of  government  .  .  .  wrings  a  confession  out  of  an 
accused  against  his  will,"  Blackburn  v.  Alabama,  361  U.  S.  199, 
206-207  (1960),  and  upon  "the  deep-rooted  feeling  that  the  police 
must  obey  the  law  while  enforcing  the  law,"  Spano  v.  New  York, 
360  U.  S.  315,  320  (1959).  Equally  significant,  however,  is  our 
awareness  of  "the  probable  unreliability  of  confessions  that  are 
obtained  in  a  manner  deemed  coercive."  Jackson  v.  Denno,  378 
U.  S.  368,  386  (1964).  And  if  the  "inherent  untrustworthiness"  of 
involuntary  confessions,  Spano  v.  New  York,  supra,  at  320,  re- 
quires their  exclusion  from  the  jury  during  trial,  see  Jackson  v. 
Denno ,  supra,  at  383-391,  it  surely  forbids  their  introduction  in 
a  capital  sentencing  proceeding,  where  the  nature  of  the  punish- 
ment faced  makes  the  need  for  reliable  information  "of  still 
greater  constitutional  concern."  Barefoot  v.  Estelle  t  supra,  at 
925  (BLACKMUN,  J.,  dissenting). 

That  petitioner  pleaded  guilty  to  the  1965  crimes  and  made  no 
effort  to  contest  the  voluntariness  of  his  confessions  to  those 


886  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

crimes  has  no  bearing  on  the  issue  of  whether  the  confessions 
were  coerced.  "A  prospect  of  plea  bargaining,  the  expectation  or 
hope  of  a  lesser  sentence,  or  the  convincing  nature  of  the  evidence 
against  [him],"  Tollett  v.  Henderson,  411  U.  S.  258,  268  (1973), 
are  all  considerations  that  may  have  led  petitioner  to  plead  guilty 
even  while  he  had  a  compelling  claim  under  the  Fifth  and  Four- 
teenth Amendments.  See  Haring  v.  Prosise,  462  U.  S.  306, 
318-319  (1983).  Nor  does  the  fact  that  petitioner  pleaded  guilty 
establish  the  truth  of  the  confessions  as  a  whole.  Even  if  the  plea 
constituted  an  admission  of  the  basic  facts  comprising  the  ele- 
ments of  the  offenses  charged,  that  admission  did  not  necessarily 
extend  to  the  truth  of  other  aspects  of  the  confessions.  And  it  is 
the  reliability  of  those  other  aspects  that  is  at  issue  here  because 
it  was  for  them  that  the  prosecutor  is  likely  to  have  sought  admis- 
sion of  the  confessions  in  the  first  place.  Had  he  wished  only  to 
establish  petitioner's  guilt  of  the  1965  crimes,  he  could  have 
merely  introduced  the  1965  convictions  without  more. 

Respondent  argues  that  regardless  of  the  voluntariness  of  peti- 
tioner's confessions,  this  Court  should  not  review  his  claim  be- 
cause the  Illinois  Supreme  Court's  decision  was  based  upon  a  rea- 
sonable state  procedural  rule.  However,  whether  the  forfeiture 
rule  applied  to  preclude  petitioner's  claim  constitutes  an  adequate 
state  ground  is  a  federal  question,  and  if  the  rule  does  not  serve  a 
legitimate  state  interest  it  "ought  not  be  permitted  to  bar  vindica- 
tion of  important  federal  rights,"  Henry  v.  Mississippi,  379  U.  S. 
443,  448  (1965).  Once  a  defendant  has  pleaded  guilty,  the  State 
has  a  legitimate  interest  in  barring  him  from  attacking  his  convic- 
tion collaterally  by  asserting  constitutional  claims  that  would  have 
been  adjudicated  had  he  stood  trial.  Since  the  plea  "represents  a 
break  in  the  chain  of  events  which  has  preceded  it  in  the  criminal 
process,"  Tollett  v.  Henderson,  supra,  at  267,  this  Court  has  held 
that  such  a  conviction  is  based  only  on  the  plea  itself,  and  not 
whatever  might  have  gone  before.  See  Haring  v.  Prosise.  supra, 
at  321. 

No  such  state  interest  supports  the  extension  of  the  waiver  rule 
to  bar  an  attack,  in  a  subsequent  capital  sentencing  proceeding,  on 
the  voluntariness  of  a  confession  made  by  a  defendant  concerning 
a  crime  to  which  he  had  previously  pleaded  guilty.  Indeed,  were 
it  not  for  this  case,  one  might  have  reasonably  assumed  that  a  rule 
so  clearly  developed  to  cut  off  collateral  attacks  upon  a  conviction 
supported  by  a  plea  would  be  applied  only  in  that  context.  The 


ORDERS  887 

474  U.  S.  October  7,  1985 

Illinois  Supreme  Court's  failure  to  give  any  justification  for  such 
a  radical  extension  of  the  rule  raises  serious  questions  as  to  the 
legitimacy  of  the  state  interests  implicated.  Moreover,  any  inter- 
est the  State  may  have  in  resolving  the  voluntariness  of  a  confes- 
sion soon  after  the  alleged  coercion  has  occurred  must  in  this  case 
be  subordinated  to  the  special  demand  for  reliability  imposed  by 
the  Eighth  Amendment.  The  refusal  of  the  trial  court  here  to  in- 
quire into  the  voluntariness  of  petitioner's  1965  confessions  outside 
the  presence  of  the  jury  pursuant  to  Jackson  v.  Denno,  supra, 
was  thus  error  of  constitutional  magnitude. 

Respondent  contends  that  petitioner  was  not  prejudiced  by  the 
introduction  of  the  1965  confessions  because  this  evidence  was 
merely  cumulative,  the  prosecution  having  already  offered  evi- 
dence of  petitioner's  conviction  and  the  confessions  of  two  of  peti- 
tioner's codefendants  from  that  proceeding.  But  a  confession  is 
not  merely  another  aggregate  of  factual  assertions.  Even  before 
this  Court  decided  that  an  involuntary  confession  could  not  be  ad- 
mitted at  trial,  it  noted  that  "such  a  confession  combines  the  per- 
suasiveness of  apparent  conclusiveness  with  what  judicial  experi- 
ence shows  to  be  illusory  and  deceptive  evidence."  Stein  v.  New 
York,  346  U.  S.  156,  192  (1953).  What  made  the  introduction  of 
the  confessions  at  petitioner's  sentencing  hearing  so  prejudicial  is 
precisely  the  reason  why  the  prosecution  sought  their  admission: 
More  damning  than  the  information  contained  in  them  was  the  fact 
that  petitioner  was  heard  to  tell  of  his  crimes  in  his  own  words. 
Certainly,  it  cannot  be  said  that  the  admission  of  the  confessions 
had  "no  effect"  on  the  sentencing  decision  as  required  by  Caldwell 
v.  Mississippi,  472  U.  S.,  at  341. 

Because  the  trial  court  here  made  no  effort  to  determine 
whether  statements  so  apparently  conclusive  of  petitioner's  char- 
acter had  been  obtained  in  a  manner  that  would  cast  doubt  on 
their  trustworthiness,  it  failed  to  guarantee  the  "reliability  in  the 
determination  that  death  is  the  appropriate  punishment"  that  this 
Court  has  demanded  in  capital  procedures,  Woodson  v.  North 
Carolina,  428  U.  S.,  at  305.  I  would  therefore  grant  certiorari 
and  vacate  petitioner's  death  sentence. 

No.  85-10.  PRESBYTERY  OF  BEAVER-BUTLER  OF  THE  UNITED 
PRESBYTERIAN  CHURCH  IN  THE  UNITED  STATES  OF  AMERICA  ET 
AL.  v.  MIDDLESEX  PRESBYTERIAN  CHURCH  ET  AL.  Sup.  Ct.  Pa. 
Motion  of  petitioners  to  consolidate  this  case  with  No.  84-2035, 


888  OCTOBER  TERM,  1985 

October  7,  1985  474  U.  S. 

York  v.  First  Presbyterian  Church  of  Anna,  supra,  denied.     Cer- 
tiorari  denied.     Reported  below:  507  Pa.  255,  489  A.  2d  1317. 

No.  85-186.  BURLINGTON  NORTHERN  INC.  v.  HEROLD  ET  AL. 
C.  A.  8th  Cir.  Motion  of  Association  of  American  Railroads  for 
leave  to  file  a  brief  as  amicus  curiae  granted.  Certiorari  denied. 
Reported  below:  761  F.  2d  1241. 

No.  85-200.  O'KANE  ET  AL.  v.  FORD  MOTOR  Co.  ET  AL. 
C.  A.  3d  Cir.  Petition  for  writ  of  certiorari  and/or  prohibition 
denied. 

No.  85-230.  AUTHIER  v.  GINSBERG  ET  AL.  C.  A.  6th  Cir. 
Certiorari  denied.  JUSTICE  O'CONNOR  took  no  part  in  the  con- 
sideration or  decision  of  this  petition.  Reported  below:  757  F.  2d 
796. 

No.  85-5042.  TAYLOR,  A  MINOR,  BY  HER  MOTHER,  TAYLOR, 
ET  AL.  v.  O'KEEFE  ET  AL.  C.  A.  2d  Cir.  Motion  of  Victims  of 
Crime  Advocacy  League  of  New  York  State,  Inc.,  for  leave  to  file 
a  brief  as  amicus  curiae  granted.  Certiorari  denied.  Reported 
below:  765  F.  2d  136. 

No.  85-5102.  POYNER  v.  VIRGINIA.  Sup.  Ct.  Va.  Certiorari 
denied.  JUSTICE  BRENNAN  would  grant  certiorari.  Reported 
below:  229  Va.  401,  329  S.  E.  2d  815. 

JUSTICE  MARSHALL,  dissenting. 

Adhering  to  my  view  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
231  (1976),  I  would  grant  certiorari  and  vacate  the  death  sentence 
in  this  case. 

No.  85-5186.  SOUTH  v.  SOUTH  CAROLINA.  Sup.  Ct.  S.  C. 
Certiorari  denied.  JUSTICE  BLACKMUN  would  grant  the  petition 
for  writ  of  certiorari,  vacate  the  judgment,  and  remand  the  case 
for  further  consideration  in  light  of  Caldwell  v.  Mississippi,  472 
U.  S.  320  (1985).  Reported  below:  285  S.  C.  529,  331  S.  E.  2d 
775. 

JUSTICE  MARSHALL,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

Last  June,  this  Court  held  it  "constitutionally  impermissible  to 
rest  a  death  sentence  on  a  determination  made  by  a  sentencer  who 


ORDERS  889 

888  MARSHALL,  J.,  dissenting 

has  been  led  to  believe  that  the  responsibility  for  determining  the 
appropriateness  of  the  defendant's  death  rests  elsewhere."  Cold- 
well  v.  Mississippi,  472  U.  S.  320,  328-329  (1985).  In  Caldwell, 
the  prosecutor  had  urged  the  jury  not  to  view  its  sentence  recom- 
mendation as  determining  whether  defendant  would  die  because 
any  death  sentence  would  be  reviewed  by  the  State  Supreme 
Court.  "The  argument  was  inaccurate,  both  because  it  was  mis- 
leading as  to  the  nature  of  the  appellate  court's  review  and  be- 
cause it  depicted  the  jury's  role  in  a  way  fundamentally  at  odds 
with  the  role  that  a  capital  sentencer  must  perform."  Id.,  at  336. 
I  believe  the  facts  of  this  case  similarly  demand  reversal.  At 
petitioner's  sentencing  hearing,  the  prosecutor  set  the  stage  for 
the  trial  judge's  instructions,  noting: 

"'He  will  explain  to  you  about  the  mitigating  parts,  things 
that  the  defense  will  say  you  should  consider  in  imposing  life 
imprisonment. 

"'And  even  behind  all  of  that  there  are  many  safeguards 
built  into  this  law.  There  are  many  many  guidelines,  safe- 
guards for  the  defendant's  benefit.  And  I  have  no  problems 
with  that.  I  agree  with  that.  I  want  it  that  way. 

"'We  are  talking  about  the  ultimate  punishment.  There 
are  even  safeguards  that  I  can't  tell  you  about  because  the 
law  says  I  am  not  suppose  [sic]  to  tell  you  about  them,  and 
I  have  no  problems  with  that.  I  am  glad  it  is  that  way.'" 
App.  to  Pet.  for  Cert.  12a  (emphasis  supplied). 

The  jury  returned  a  recommendation  for  death,  and  that  sentence 
was  accordingly  imposed  by  the  trial  court.  On  appeal,  the  South 
Carolina  Supreme  Court  deferred  to  the  "wide  discretion"  of  the 
trial  judge  "regarding  the  propriety  of  the  argument,"  id.,  at  6a, 
and  refused  to  disturb  his  ruling.  Seven  days  later,  this  Court 
handed  down  its  decision  in  Caldwell. 

In  Caldwell,  the  prosecutor's  specificity  as  to  the  alleged  safe- 
guards allowed  this  Court  to  assess  the  degree  to  which  his  re- 
marks might  have  led  the  jury  to  "shift  its  sense  of  responsibility 
to  an  appellate  court."  472  U.  S.,  at  330.  Such  an  assessment 
is  impossible  here  because  the  prosecutor's  vague  assurances  in- 
vited jurors  to  speculate  freely  as  to  the  extent  to  which  they 
could  share  their  duty  of  deciding  whether  petitioner  should  die. 


890  OCTOBER  TERM,  1985 

October  7,  10,  1985  474  U.  S. 

Their  ability  to  shift  their  responsibility  was  limited  only  by 
their  imaginations.  But  there  can  be  no  doubt  that,  as  in  Cold- 
well,  the  argument  "urged  the  jurors  to  view  themselves  as  taking 
only  a  preliminary  step  toward  the  actual  determination  of  the 
appropriateness  of  death— a  determination  which  would  eventually 
be  made  by  others  and  for  which  the  jury  was  not  responsible." 
Id.,  at  336. 

The  South  Carolina  Supreme  Court  asserted  that  any  prejudice 
attributable  to  the  prosecution's  remarks  was  negated  by  defense 
counsel's  arguments  and  the  trial  judge's  instructions.  But  once 
the  prosecutor  had  alluded  to  safeguards  that  he  claimed  could  not 
even  be  disclosed  to  the  jury,  the  absence  of  further  reference  to 
such  safeguards  could  only  corroborate,  not  cure.  Certainly,  it 
cannot  be  seriously  suggested  that  the  remarks  had  "no  effect" 
upon  the  jury's  decision  to  recommend  that  petitioner  receive  the 
death  sentence.  See  Caldwell,  supra,  at  341. 

Even  were  I  to  believe  that  the  death  penalty  could  constitu- 
tionally be  imposed  under  certain  circumstances,  I  would  grant  the 
petition,  vacate  the  sentence,  and  remand  this  case  to  the  South 
Carolina  Supreme  Court  for  reconsideration  in  light  of  Caldwell. 
This  Court's  refusal  to  treat  like  cases  alike  can  only  add  to  the 
unconstitutionally  arbitrary  nature  of  the  death  penalty. 

Rehearing  Denied 

No.  81-1718.  DEVEX  CORP.  ET  AL.  v.  GENERAL  MOTORS 
CORP.,  456  U.  S.  990.  Motion  of  petitioner  Technograph,  Inc., 
for  leave  to  file  petition  for  rehearing  denied. 

No.  83-676.  SAM  RAYBURN  DAM  ELECTRIC  COOPERATIVE, 
INC.  v.  UNITED  STATES,  465  U.  S.  1005.  Motion  of  petitioner  for 
leave  to  file  petition  for  rehearing  denied.  JUSTICE  BLACKMUN 
would  grant  this  motion. 

OCTOBER  10,  1985 

Dismissal  Under  Rule  53 

No.  85-248.  CRAWFORD  FITTING  Co.  ET  AL.  v.  J.  T.  GIBBONS, 
INC.  C.  A.  5th  Cir.  Certiorari  dismissed  under  this  Court's 
Rule  53.  Reported  below:  760  F.  2d  613. 


ORDERS  891 

474  U.  S.  October  11,  12,  14,  15,  1985 

OCTOBER  11,  1985 
Miscellaneous  Order 

No.  A-280.  BOWDEN  v.  KEMP,  WARDEN.  Application  for 
stay  of  execution  of  sentence  of  death,  presented  to  JUSTICE 
POWELL,  and  by  him  referred  to  the  Court,  denied. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  the  application  for  stay  and  a  peti- 
tion for  writ  of  certiorari  and  would  vacate  the  death  sentence  in 
this  case. 

OCTOBER  12,  1985 
Dismissal  Under  Rule  53 

No.  85-5334.  IN  RE  BELLIN.  Petition  for  writ  of  mandamus 
dismissed  under  this  Court's  Rule  53. 

OCTOBER  14,  1985 
Miscellaneous  Order 

No.  A-285  (85-5607).  BOWDEN  v.  KEMP,  WARDEN.  C.  A. 
llth  Cir.  Application  for  stay  of  execution  of  sentence  of  death, 
presented  to  JUSTICE  POWELL,  and  by  him  referred  to  the  Court, 
is  granted  pending  the  final  disposition  of  the  petition  for  writ  of 
certiorari. 

OCTOBER  15,  1985 

Appointment  of  Deputy  Director  of  Administrative  Office  of  U.  S. 

Courts 

It  is  ordered  that  James  E.  Macklin,  Jr.,  be  appointed  Deputy 
Director  of  the  Administrative  Office  of  the  United  States  Courts, 
effective  October  1,  1985,  pursuant  to  the  provisions  of  §  601  of 
Title  28  of  the  United  States  Code. 

Appeals  Dismissed 

No.  84-921.  NORTHEASTERN  INTERNATIONAL  AIRWAYS,  INC., 
ET  AL.  v.  FLORIDA  DEPARTMENT  OF  REVENUE.  Appeal  from 
Sup.  Ct.  Fla.  dismissed  for  want  of  substantial  federal  question. 
Reported  below:  457  So.  2d  1008. 


892  OCTOBER  TERM,  1985 

October  15,  1985  474  U.  S. 

No.  84-926.  EASTERN  AIRLINES  INC.  v.  FLORIDA  DEPART- 
MENT OF  REVENUE.  Appeal  from  Sup.  Ct.  Fla.  dismissed  for 
want  of  substantial  federal  question.  Reported  below:  455  So. 
2d  311. 

No.  84-929.  DELTA  Am  LINES,  INC.  v.  FLORIDA  DEPART- 
MENT OF  REVENUE.  Appeal  from  Sup.  Ct.  Fla.  dismissed  for 
want  of  substantial  federal  question.  Reported  below:  455  So. 
2d  317. 

No.  84-1773.  PINE  HILL  Civic  CLUB,  INC.,  ET  AL.  v.  DEKALB 
COUNTY,  GEORGIA,  ET  AL.  Appeal  from  Sup.  Ct.  Ga.  dismissed 
for  want  of  substantial  federal  question.  Reported  below:  254 
Ga.  20,  326  S.  E.  2d  214. 

No.  84-1881.  HEDGES  v.  ALLINDER.  Appeal  from  Sup.  Ct. 
App.  W.  Va.  dismissed  for  want  of  substantial  federal  question. 

No.  85-417.  EXOTIC  COINS,  INC.,  ET  AL.  v.  BEACOM,  DIS- 
TRICT ATTORNEY  FOR  COUNTY  OF  ADAMS,  ET  AL.  Appeal  from 
Sup.  Ct.  Colo,  dismissed  for  want  of  substantial  federal  question. 
Reported  below:  699  P.  2d  930. 

No.  85-19.  FEIN  v.  PERMANENTE  MEDICAL  GROUP.  Appeal 
from  Sup.  Ct.  Cal.  dismissed  for  want  of  substantial  federal  ques- 
tion. Reported  below:  38  Cal.  3d  137,  695  P.  2d  665. 

JUSTICE  WHITE,  dissenting. 

California  Civ.  Code  Ann.  §3333.2  (West  Supp.  1985)  estab- 
lishes a  $250,000  maximum  limitation  in  medical  malpractice  ac- 
tions for  "noneconomic  losses  to  compensate  for  pain,  suffering, 
inconvenience,  physical  impairment,  disfigurement,  and  other  non- 
pecuniary  damage."  This  statute  is  part  of  the  Medical  Injury 
Compensation  Act  of  1975,  enacted  by  the  California  Legislature 
in  response  to  the  dramatic  rise  in  consumer  medical  costs  caused 
by  the  increase  in  both  monetary  awards  in  medical  malpractice 
actions  and  medical  malpractice  insurance  premiums.  See  1975 
Cal.  Stats.,  2d  Ex.  Sess.,  ch.  2,  §12.5(l)(b),  p.  4007. 

Appellant  brought  a  medical  malpractice  action  against  appellee, 
Permanente  Medical  Group,  a  partnership  of  physicians,  for  fail- 
ing to  diagnose  and  prevent  a  myocardial  infarction.  The  jury 
awarded  appellant  total  damages  of  $1,287,783,  including  $500,000 
for  noneconomic  losses.  The  trial  judge,  however,  pursuant  to 
§  3333.2,  reduced  the  amount  of  noneconomic  damages  to  $250,000. 


ORDERS  893 

892  WHITE,  J.,  dissenting 

The  California  Supreme  Court  affirmed,  rejecting  appellant's 
challenge  that  §3333.2  contravenes  both  the  Due  Process  and 
Equal  Protection  Clauses  of  the  Federal  Constitution.  38  Cal.  3d 
137,  695  P.  2d  665  (1985).  The  court  found  no  due  process  vio- 
lation based  on  the  theory  that  "the  Legislature  retains  broad 
control  over  the  measure,  as  well  as  the  timing,  of  damages  that  a 
defendant  is  obligated  to  pay  and  a  plaintiff  is  entitled  to  receive, 
and  .  .  .  the  Legislature  may  expand  or  limit  recoverable  damages 
so  long  as  its  action  is  rationally  related  to  a  legitimate  state  inter- 
est." Id.,  at  158,  695  P.  2d,  at  680  (emphasis  in  original).  The 
court  then  reasoned  that  the  limitation  imposed  by  §  3333.2  was 
a  rational  response  to  the  problem  of  rising  medical  malpractice 
insurance  costs. 

Similarly,  the  court  found  that  §3333.2  did  not  improperly  dis- 
criminate either  between  medical  malpractice  plaintiffs  and  other 
tort  plaintiffs,  or  within  the  class  of  medical  malpractice  plaintiffs 
by  denying  full  recovery  to  those  with  noneconomic  damages  ex- 
ceeding $250,000.  The  legislature's  decision  to  limit  the  applica- 
tion of  §3333.2  to  medical  malpractice  cases,  and  within  those 
cases  to  those  with  large  noneconomic  damages  awards,  the  court 
reasoned,  was  a  rational  response  to  escalating  malpractice  insur- 
ance rates. 

California  thus  joins  Indiana  as  the  only  two  States  to  uphold 
the  constitutionality  of  this  type  of  medical  malpractice  damages 
limits.  See  Johnson  v.  St.  Vincent  Hospital,  Inc.,  404  N.  E.  2d 
585,  598-601  (Ind.  1980).  Four  other  States  which  have  ad- 
dressed similar  damages  limitations  have  invalidated  the  chal- 
lenged provisions  on  federal  constitutional  grounds.  Baptist 
Hospital  of  Southeast  Texas  v.  Baber,  672  S.  W.  2d  296,  298 
(Tex.  App.  1984)  ($500,000  limit  on  damages  other  than  medical 
expenses);  Carson  v.  Maurer,  120  N.  H.  925,  941-943,  424  A.  2d 
825,  836-838  (1980)  ($250,000  limit  on  "noneconomic"  damages); 
Arneson  v.  Olsen,  270  N.  W.  2d  125,  135-136  (N.  D.  1978) 
($300,000  limit  on  total  damages);  Simon  v.  St.  Elizabeth  Medical 
Center,  3  Ohio  Op.  3d  164,  166,  355  N.  E.  2d  903,  906-907  (Com. 
PI.  1976)  ($200,000  limit  on  "general"  damages).* 

*In  addition,  at  least  one  other  court  has  struck  down  a  similar  medical 
malpractice  damages  cap  as  violative  of  the  State's  Constitution.  Wright  v. 
Central  Du  Page  Hospital  Assn.,  63  111.  2d  313,  329-330,  347  N.  E.  2d  736, 
743  (1976).  Of.  Jones  v.  State  Board  of  Medicine,  97  Idaho  859,  877,  555 
P.  2d  399,  416-417  (1976)  (remanding  for  factual  determination  on  whether 


894  OCTOBER  TERM,  1985 

WHITE,  J.,  dissenting  474  U.  S. 

One  of  the  reasons  for  the  division  among  the  state  courts  is  a 
question  left  unresolved  by  this  Court  in  Duke  Power  Co.  v.  Caro- 
lina Environmental  Study  Group,  Inc.,  438  U.  S.  59  (1978).  In 
that  case,  the  Court  upheld  the  provisions  of  the  Price- Anderson 
Act,  42  U.  S.  C.  §  2210,  which  place  a  dollar  limit  on  total  liability 
that  would  be  incurred  by  a  defendant  in  the  event  of  a  nuclear 
accident.  One  of  the  objections  raised  against  the  liability  limi- 
tation provisions  was  that  they  violated  due  process  by  failing 
to  provide  those  injured  by  a  nuclear  accident  with  an  adequate 
quid  pro  quo  for  the  common-law  right  of  recovery  which  the  Act 
displaced.  The  Court  noted:  "It  is  not  at  all  clear  that  the  Due 
Process  Clause  in  fact  requires  that  a  legislatively  enacted  com- 
pensation scheme  either  duplicate  the  recovery  at  common  law  or 
provide  a  reasonable  substitute  remedy.  However,  we  need  not 
resolve  this  question  here  .  .  .  ."  438  U.  S.,  at  88  (footnote 
omitted). 

The  North  Dakota  Supreme  Court  in  Arneson,  supra,  followed 
Duke  Power  Co.,  and  refused  to  hold  that  the  legislature  may  not 
limit  a  pre-existing  right  without  providing  a  quid  pro  quo.     270 
N.  W.  2d,  at  134-135.      Nevertheless,  the  court  went  on  to  find 
that  the  imposition  of  a  damages  cap  on  malpractice  claims  did  not 
provide  a  sufficient  quid  pro  quo  for  the  severely  injured  mal- 
practice plaintiff,  as  his  loss  of  recovery  was  offset  only  by  lower 
medical  costs  for  all  recipients  of  medical  care,  and  he  received  no 
specific  benefit  in  return.     Id.,  at  136,  citing  Wright  v.  Central 
Du  Page  Hospital  Assn.,  63  111.  2d  313,  328,  347  N.  E.  2d  736,  743 
(1976).     This  approach  has  been  followed  by  the  courts  in  Texas 
and  New  Hampshire.     See  Baptist  Hospital  of  Southeast  Texas, 
supra,  at  298;  Carson,  supra,  at  941-943,  424  A.  2d,  at  837-838. 
In  the  instant  case,  however,  the  California  Supreme  Court  con- 
cluded that  "it  would  be  difficult  to  say  that  the  preservation  of  a 
viable  medical  malpractice  insurance  industry  in  this  state  was  not 
an  adequate  benefit  for  the  detriment  the  legislation  imposes  on 
malpractice  plaintiffs."     38  Cal.  3d,  at  160,  n.  18,  695  P.  2d,  at 
681-682,  n.  18. 

Whether  due  process  requires  a  legislatively  enacted  compensa- 
tion scheme  to  be  a  quid  pro  quo  for  the  common-law  or  state-law 
remedy  it  replaces,  and  if  so,  how  adequate  it  must  be,  thus  ap- 


a  medical  malpractice  "crisis"  actually  existed  in  Idaho  to  justify  adoption 
of  damages  limitation). 


ORDERS  895 

474  U.  S.  October  15,  1985 

pears  to  be  an  issue  unresolved  by  this  Court,  and  one  which  is 
dividing  the  appellate  and  highest  courts  of  several  States.  The 
issue  is  important,  and  is  deserving  of  this  Court's  review.  More- 
over, given  the  continued  national  concern  over  the  "malpractice 
crisis,"  it  is  likely  that  more  States  will  enact  similar  types  of 
limitations,  and  that  the  issue  will  recur.  I  find,  therefore,  that 
the  federal  question  presented  by  this  appeal  is  substantial,  and 
dissent  from  the  Court's  conclusion  to  the  contrary. 

No.  85-37.  SPENDLOVE  ET  AL.  v.  ANCHORAGE  MUNICIPAL 
ZONING  BOARD  OF  EXAMINERS  AND  APPEALS  ET  AL.  Appeal 
from  Sup.  Ct.  Alaska  dismissed  for  want  of  jurisdiction.  Re- 
ported below:  695  P.  2d  1074. 

No.  85-152.  THOMPSON  ET  AL.  v.  FIRST  NATIONAL  BANK  & 
TRUST  Co.  Appeal  from  Cir.  Ct.  Ky.,  Kenton  County,  dismissed 
for  want  of  jurisdiction. 

No.  85-191.  ZERMAN  ET  AL.  v.  AVANT  GARDE  CONDOMINIUM 
ASSN.,  INC.,  ET  AL.;  and  ZERMAN  v.  WHITE,  CLERK  OF  THE 
FLORIDA  SUPREME  COURT,  ET  AL.  Appeals  from  Sup.  Ct.  Fla. 
dismissed  for  want  of  jurisdiction.  Reported  below:  466  So.  2d 
218  (first  case);  472  So.  2d  1182  (second  case). 

No.  85-123.  MUKA  v.  CARTER,  CHIEF  DISCIPLINARY  COUN- 
SEL. Appeal  from  Sup.  Ct.  R.  I.  dismissed  for  want  of  a  final 
judgment.  Reported  below:  491  A.  2d  334. 

No.  85-309.  Roussos  v.  RETINA  CONSULTANTS,  P.  C.  Ap- 
peal from  Ct.  Sp.  App.  Md.  dismissed  for  want  of  jurisdiction. 
Treating  the  papers  whereon  the  appeal  was  taken  as  a  petition 
for  writ  of  certiorari,  certiorari  denied.  Reported  below:  61  Md. 
App.  717. 

No.  85-5263.  SMITH  v.  SCULLY.  Appeal  from  Ct.  App.  Ore. 
dismissed  for  want  of  jurisdiction.  Treating  the  papers  whereon 
the  appeal  was  taken  as  a  petition  for  writ  of  certiorari,  certiorari 
denied.  Reported  below:  72  Ore.  App.  184,  695  P.  2d  100. 

Certiorari  Granted— Vacated  and  Remanded 

No.  85-231.  BOATING  INDUSTRY  ASSNS.  ET  AL.  v.  MOORE 
ET  AL.  C.  A.  7th  Cir.  Certiorari  granted,  judgment  vacated, 
and  case  remanded  for  further  consideration  in  light  of  Northwest 
Wholesale  Stationers,  Inc.  v.  Pacific  Stationery  &  Printing  Co., 
472  U.  S.  284  (1985).  Reported  below:  754  F.  2d  698. 


896  OCTOBER  TERM,  1985 

October  15,  1985  474  U.  S. 

No.  85-5193.  YATES  u  AIKEN,  WARDEN,  ET  AL.  Sup.  Ct. 
S.  C.  Motion  of  petitioner  for  leave  to  proceed  in  forma  pauperis 
and  certiorari  granted.  Judgment  vacated  and  case  remanded  for 
farther  consideration  in  light  of  Francis  v.  Franklin,  471  U.  S. 
307  (1985). 

Miscellaneous  Orders 

No.  A-207  (85-369).  TUCKER  v.  HARTFORD  FEDERAL  SAVINGS 
&  LOAN  ASSN.  Sup.  Ct.  Conn.  Application  for  stay,  addressed 
to  JUSTICE  REHNQUIST  and  referred  to  the  Court,  denied. 

No.  D-493.  IN  RE  DISBARMENT  OF  SURDUT.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  471  U.  S.  1114.] 

No.  D-501.  IN  RE  DISBARMENT  OF  CHARTIER.  Disbarment 
entered.  [For  earlier  order  herein,  see  472  U.  S.  1005.] 

No.  D-507.  IN  RE  DISBARMENT  OF  ROTH.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  472  U.  S.  1024.] 

No.  D-518.  IN  RE  DISBARMENT  OF  O'BOYLE.  It  is  ordered 
that  Edwards  C.  O'Boyle,  Jr.,  of  Peacham,  Vt.,  be  suspended 
from  the  practice  of  law  in  this  Court  and  that  a  rule  issue,  return- 
able within  40  days,  requiring  him  to  show  cause  why  he  should 
not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-519.  IN  RE  DISBARMENT  OF  DAVIS.  It  is  ordered  that 
James  Nelson  Davis,  of  Daytona  Beach,  Fla.,  be  suspended  from 
the  practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-521.  IN  RE  DISBARMENT  OF  KLINE.  It  is  ordered  that 
David  L.  Kline,  of  Lake  City,  Fla.,  be  suspended  from  the  prac- 
tice of  law  in  this  Court  and  that  a  rule  issue,  returnable  within  40 
days,  requiring  him  to  show  cause  why  he  should  not  be  disbarred 
from  the  practice  of  law  in  this  Court. 

No.  D-522.  IN  RE  DISBARMENT  OF  KAMINSKY.  It  is  ordered 
that  James  Raymond  Kaminsky,  of  Columbus,  Ohio,  be  suspended 
from  the  practice  of  law  in  this  Court  and  that  a  rule  issue,  return- 
able within  40  days,  requiring  him  to  show  cause  why  he  should 
not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-523.  IN  RE  DISBARMENT  OF  GANTT.  It  is  ordered  that 
Richard  Allison  Gantt,  of  Greenville,  S.  C.,  be  suspended  from  the 


ORDERS  897 

474  U.  S.  October  15,  1985 

practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-524.  IN  RE  DISBARMENT  OF  WETHERBEE.  It  is  or- 
dered that  R.  Michael  Wetherbee,  of  Los  Angeles,  Cal.,  be  sus- 
pended from  the  practice  of  law  in  this  Court  and  that  a  rule  issue, 
returnable  within  40  days,  requiring  him  to  show  cause  why  he 
should  not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  35,  Orig.  UNITED  STATES  v.  MAINE  ET  AL.  Motion  of 
Massachusetts  for  leave  to  file  a  reply  brief  granted.  [For  earlier 
order  herein,  see,  e.  g.,  ante,  p.  808.] 

No.  84-1076.  TRANSCONTINENTAL  GAS  PIPE  LINE  CORP.  v. 
STATE  OIL  AND  GAS  BOARD  OF  MISSISSIPPI  ET  AL.  Sup.  Ct. 
Miss.  [Probable  jurisdiction  noted,  470  U.  S.  1083.]  Motion  of 
Louisiana  for  leave  to  file  a  brief  as  amicus  curiae  out  of  time 
denied. 

No.  84-1198.  TEXAS  v.  McCuLLOUGH.  Ct.  Crim.  App.  Tex. 
[Certiorari  granted,  472  U.  S.  1007.]  Motion  of  John  Mann,  Es- 
quire, to  permit  Jeff  Blackburn,  Esquire,  to  present  oral  argu- 
ment pro  hac  vice  on  behalf  of  respondent  granted. 

No.  84-1236.  CABANA,  SUPERINTENDENT,  MISSISSIPPI  STATE 
PENITENTIARY,  ET  AL.  v.  BULLOCK.  C.  A.  5th  Cir.  [Certiorari 
granted,  471  U.  S.  1052.]  Motion  of  National  Association  of 
Criminal  Defense  Lawyers  for  leave  to  file  a  brief  as  amicus 
curiae  granted. 

No.  84-1274.  BOARD  OF  GOVERNORS  OF  THE  FEDERAL  RE- 
SERVE SYSTEM  v.  DIMENSION  FINANCIAL  CORP.  ET  AL.  C.  A. 
10th  Cir.  [Certiorari  granted,  471  U.  S.  1064.]  Motion  of  re- 
spondents for  divided  argument  granted.  JUSTICE  WHITE  took 
no  part  in  the  consideration  or  decision  of  this  motion. 

No.  84-1279.  DELAWARE  v.  VAN  ARSDALL.  Sup.  Ct.  Del. 
[Certiorari  granted,  473  U.  S.  923.]  Motion  of  the  Acting  Solici- 
tor General  for  leave  to  participate  in  oral  argument  as  amicus 
curiae  and  for  divided  argument  granted. 

No.  84-1480.  WAINWRIGHT,  SECRETARY,  FLORIDA  DEPART- 
MENT OF  CORRECTIONS  v.  GREENFIELD.  C.  A.  llth  Cir.  [Cer- 
tiorari granted,  471  U.  S.  1098.]  Motion  of  Illinois  Psychological 


898  OCTOBER  TERM,  1985 

October  15,  1985  474  U.  S. 

Association  for  leave  to  participate  in  oral  argument  as  amicus 
curiae  and  for  divided  argument  denied. 

No.  84-1538.  FISHER  ET  AL.  v.  CITY  OF  BERKELEY,  CALIFOR- 
NIA, ET  AL.  Sup.  Ct.  Cal.  [Probable  jurisdiction  noted,  471 
U.  S.  1124.]  Motion  of  appellants  for  divided  argument  to  permit 
California  Apartment  Association  to  present  oral  argument  as 
amicus  curiae  denied. 

No.  84-1554.  SIELAFF,  DIRECTOR,  VIRGINIA  DEPARTMENT  OF 
CORRECTIONS  v.  CARRIER.  C.  A.  4th  Cir.  [Certiorari  granted, 
473  U.  S.  903.]  Motion  of  the  Acting  Solicitor  General  for  leave 
to  participate  in  oral  argument  as  amicus  curiae  and  for  divided 
argument  granted.  Motion  for  appointment  of  counsel  granted, 
and  it  is  ordered  that  Sherman  Louis  Conn,  Esquire,  of  Washing- 
ton, D.  C.,  be  appointed  to  serve  as  counsel  for  respondent  in  this 
case. 

No.  84-1731.  LORAIN  JOURNAL  Co.  ET  AL.  v.  MILKOVICH. 
Sup.  Ct.  Ohio.  Motion  of  Ohio  Newspaper  Association  for  leave 
to  file  a  brief  as  amicus  curiae  granted. 

No.  84-1750.  BALLAM  v.  UNITED  STATES.  C.  A.  4th  Cir. 
The  Solicitor  General  is  requested  to  state  the  views  of  the  United 
States  with  respect  to  the  jurisdiction  of  the  Court  of  Appeals  to 
hear  the  appeal  in  this  case.  See  the  views  of  the  United  States 
stated  in  its  petition  for  certiorari  to  review  United  States  v. 
Squillacote,  747  F.  2d  432  (CA7  1984),  cert,  denied,  471  U.  S. 
1016  (1985). 

No.  84-6470.  DAVIDSON  v.  CANNON  ET  AL.  C.  A.  3d  Cir. 
[Certiorari  granted,  471  U.  S.  1134.]  Motion  of  the  Acting  Solici- 
tor General  for  leave  to  participate  in  oral  argument  as  amicus 
curiae  and  for  divided  argument  granted. 

No.  85-82.  BUILDING  &  CONSTRUCTION  TRADES  COUNCIL  OF 
PHILADELPHIA  AND  VICINITY  ET  AL.  v.  ALTEMOSE  CONSTRUC- 
TION Co.  ET  AL.  C.  A.  3d  Cir.  The  Solicitor  General  is  invited 
to  file  a  brief  in  this  case  expressing  the  views  of  the  United 
States. 

No.  85-273.  FLORIDA  v.  Ross.  Dist.  Ct.  App.  Fla. ,  4th  Dist. 
Motion  of  respondent  for  leave  to  proceed  in  forma  pauperis 
granted. 

No.  85-5262.  NEWBY  ET  AL.  v.  DEPARTMENT  OF  LABOR. 
C.  A.  Fed.  Cir.  Motion  of  petitioners  for  leave  to  proceed  in 


ORDERS  899 

474  U.  S.  October  15,  1985 

forma  pauperis  denied.  Petitioners  are  allowed  until  November 
5,  1985,  within  which  to  pay  the  docketing  fee  required  by  Rule 
45(a)  and  to  submit  a  petition  in  compliance  with  Rule  33  of  the 
Rules  of  this  Court. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

For  the  reasons  expressed  in  Brown  v.  Herald  Co.,  464  U.  S. 
928  (1983),  we  would  deny  the  petition  for  writ  of  certiorari  with- 
out reaching  the  merits  of  the  motion  to  proceed  in  forma 
pauperis. 

No.  85-5319.  DARDEN  v.  WAINWRIGHT,  SECRETARY,  FLORIDA 
DEPARTMENT  OF  CORRECTIONS.  C.  A.  llth  Cir.  [Certiorari 
granted,  473  U.  S.  928.]  Motion  of  respondent  to  vacate  stay  of 
execution  and  suggestion  that  writ  was  improvidently  granted  is 
denied. 

No.  85-394.     IN  RE  TRACEY; 
No.  85-5284.     IN  RE  SANCHEZ-BERRIDI;  and 
No.  85-5346.     IN  RE  KRAHN.     Petitions  for  writs  of  mandamus 
denied. 

Probable  Jurisdiction  Noted 

No.  84-1905.  HECKLER,  SECRETARY  OF  HEALTH  AND  HUMAN 
SERVICES  v.  OWENS  ET  AL.  Appeal  from  D.  C.  C.  D.  Cal. 
Probable  jurisdiction  noted. 

No.  85-88.  PAULUSSEN  v.  HERION.  Appeal  from  Super.  Ct. 
Pa.  Probable  jurisdiction  noted.  Reported  below:  334  Pa. 
Super.  585,  483  A.  2d  892, 

No.  85-117.  BAKER  ET  AL.  v.  GENERAL  MOTORS  CORP.  ET  AL. 
Appeal  from  Sup.  Ct.  Mich.  Probable  jurisdiction  noted.  Re- 
ported below:  420  Mich.  463,  363  N.  W.  2d  602. 

No.  85-217.  INTERNATIONAL  LONGSHOREMEN'S  ASSN., 
AFL-CIO  v.  DAVIS.  Appeal  from  Sup.  Ct.  Ala.  Probable  juris- 
diction noted.  Reported  below:  470  So.  2d  1215. 

Certiorari  Granted 

No.  84-1560.  PRESS-ENTERPRISE  Co.  v.  SUPERIOR  COURT  OF 
CALIFORNIA  FOR  THE  COUNTY  OF  RIVERSIDE.  Sup.  Ct.  Cal. 
Certiorari  granted.  Reported  below:  37  Cal.  3d  772,  691  P.  2d 
1026. 


900  OCTOBER  TERM,  1985 

October  15,  1985  474  U.  S. 

No.  84-1717.  UNITED  STATES  u  QUINN.  C.  A.  9th  Cir. 
Certiorari  granted.  Reported  below:  751  F.  2d  980. 

No.  84-1744.  HENDERSON  ET  AL.  v.  UNITED  STATES.  C.  A. 
9th  Cir.  Certiorari  granted.  Reported  below:  746  F.  2d  619. 

No.  84-1777.  INTERNATIONAL  UNION,  UNITED  AUTOMOBILE, 
AEROSPACE  &  AGRICULTURAL  IMPLEMENT  WORKERS  OF  AMER- 
ICA, ET  AL.  v.  BROCK,  SECRETARY  OF  LABOR.  C.  A.  D.  C.  Cir. 
Certiorari  granted.  Reported  below:  241  U.  S.  App.  D.  C.  106, 
746  F.  2d  839. 

No.  84-1809.  FEDERAL  TRADE  COMMISSION  v.  INDIANA  FED- 
ERATION OF  DENTISTS.  C.  A.  7th  Cir.  Certiorari  granted.  Re- 
ported below:  745  F.  2d  1124. 

No.  84-1973.  THREE  AFFILIATED  TRIBES  OF  THE  FORT 
BERTHOLD  RESERVATION  u  WOLD  ENGINEERING,  P.  C.,  ET  AL. 
Sup.  Ct.  N.  D.  Certiorari  granted.  Reported  below:  364  N.  W. 
2d98. 

No.  85-195.  ICICLE  SEAFOODS,  INC.  u  WORTHINGTON  ET  AL. 
C.  A.  9th  Cir.  Certiorari  granted  limited  to  Question  1  presented 
by  the  petition.  Reported  below:  774  F.  2d  349. 

No.  85-246.  UNITED  STATES  v.  DION.  C.  A.  8th  Cir.  Mo- 
tion of  respondent  for  leave  to  proceed  in  forma  pauperis  and 
certiorari  granted.  Reported  below:  762  F.  2d  674. 

No.  84-6859.  SKIPPER  v.  SOUTH  CAROLINA.  Sup.  Ct.  S.  C. 
Motion  of  petitioner  for  leave  to  proceed  in  forma  pauperis 
granted.  Certiorari  granted  limited  to  Question  I  presented  by 
the  petition.  Reported  below:  285  S.  C.  42,  328  S.  E.  2d  58. 

Certiorari  Denied.     (See  also  Nos.  85-309  and  85-5263,  supra.) 

No.  84-1805.  TULALIP  TRIBES  OF  WASHINGTON  ET  AL.  v. 
FEDERAL  ENERGY  REGULATORY  COMMISSION.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  749  F.  2d  1367. 

No.  84-1877.  STEARNS  Co.  ET  AL.  v.  HODEL,  SECRETARY  OF 
THE  INTERIOR,  ET  AL.;  and 

No.  84-1938.  GABRIEL  ENERGY  CORP.  v.  HODEL,  SECRETARY 
OF  THE  INTERIOR,  ET  AL.  C.  A.  6th  Cir.  Certiorari  denied. 
Reported  below:  753  F.  2d  521. 


ORDERS  901 

474  U.  S.  October  15,  1985 

No.  84-1880.  CITY  OF  ALCOA  ET  AL.  u  MYERS,  ON  BEHALF 
OF  HERSELF  AND  HER  THREE  MINOR  CHILDREN,  DIXON  ET  AL. 
C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  752  F.  2d 
196. 

No.  84-1996.  TRUCK  DRIVERS  LOCAL  807,  INTERNATIONAL 
BROTHERHOOD  OF  TEAMSTERS,  CHAUFFEURS,  WAREHOUSEMEN 
&  HELPERS  OF  AMERICA,  ET  AL.  v.  NATIONAL  LABOR  RELATIONS 
BOARD  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  755  F.  2d  5. 

No.  84-6784.  YATER  u  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  756  F.  2d  1058. 

No.  84-6821.  GRACE  v.  GOLDEN  ET  AL.  C.  A.  llth  Cir. 
Certiorari  denied. 

No.  84-6822.  GRACE  u  WAINWRIGHT,  SECRETARY,  FLORIDA 
DEPARTMENT  OF  CORRECTIONS,  ET  AL.  C.  A.  llth  Cir.  Certio- 
rari denied. 

No.  84-6828.  VILLANUEVA  v.  OKLAHOMA.  Ct.  Crim.  App. 
Okla.  Certiorari  denied.  Reported  below:  695  P.  2d  858. 

No.  84-6846.     KIRBY  v.  UNITED  STATES; 
No.  84-6935.     GREENSPUN  v.  UNITED  STATES;  and 
No.  84-6949.     BALCHAITIS  v.  UNITED  STATES.     C.  A.  3d  Cir. 
Certiorari  denied.     Reported  below:  758  F.  2d  879. 

No.  84-6921.  KRAMSVOGEL  v.  WISCONSIN.  Sup.  Ct.  Wis. 
Certiorari  denied.  Reported  below:  124  Wis.  2d  101,  369  N.  W. 
2d  145. 

No.  84-6952.  KEPREOS  v.  UNITED  STATES.  C.  A.  1st  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  961. 

No.  85-71.  LOCALS  666  AND  780  OF  THE  INTERNATIONAL 
ALLIANCE  OF  THEATRICAL  STAGE  EMPLOYEES  ET  AL.  v.  UNITED 
STATES  DEPARTMENT  OF  LABOR  ET  AL.  C.  A.  7th  Cir.  Certio- 
rari denied.  Reported  below:  760  F.  2d  141. 

No.  85-76.  GRAHAM  v.  UNITED  STATES.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  758  F.  2d  879. 

No.  85-81.  CHRISTMANN  &  WELBORN  v.  UNITED  STATES  DE- 
PARTMENT OF  ENERGY  ET  AL.  Temp.  Emerg.  Ct.  App.  Certio- 
rari denied.  Reported  below:  773  F.  2d  317. 


902  OCTOBER  TERM,  1985 

October  15,  1985  474  U.  S. 

No.  85-94.  ZIMMER  PAPER  PRODUCTS  INC.  v.  BERGER  & 
MONTAGUE,  P.  C.,  ET  AL.  C.  A.  3d  Cir.  Certiorari  denied. 
Reported  below:  758  F.  2d  86. 

No.  85-115.  NATIONAL  FREIGHT,  INC.,  ET  AL.  v.  LARSON, 
SECRETARY  OF  TRANSPORTATION  OF  PENNSYLVANIA,  ET  AL. 
C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  499. 

No.  85-122.  FIRST  CITIZENS  BANK  OF  BILLINGS  v.  EQUAL 
EMPLOYMENT  OPPORTUNITY  COMMISSION.  C.  A.  9th  Cir.  Cer- 
tiorari denied.  Reported  below:  758  F.  2d  397. 

No.  85-131.  LEWIS  v.  BLACKBURN,  CLERK  OF  SUPERIOR 
COURT  FOR  MECKLENBURG  COUNTY,  ET  AL.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  1171. 

No.  85-156.  HOOVER  ET  AL.  v.  DOLE,  SECRETARY  OF  TRANS- 
PORTATION, ET  AL.  Sp.  Ct.  R.  R.  R.  A.  Certiorari  denied. 
Reported  below:  613  F.  Supp.  374. 

No.  85-163.  BALAIR,  LTD.,  ET  AL.  u  UNITED  STATES.  C.  A. 
D.  C.  Cir.  Certiorari  denied.  Reported  below:  246  U.  S.  App. 
D.  C.  43,  762  F.  2d  137. 

No.  85-254.  KEARNEY  &  TRECKER  CORP.  v.  GULF  SOUTH 
MACHINE,  INC.  C.  A.  5th  Cir.  Certiorari  denied.  Reported 
below:  756  F.  2d  377. 

No.  85-256.  HECKLER,  SECRETARY  OF  HEALTH  AND  HUMAN 
SERVICES  v.  ST.  JAMES  HOSPITAL  ET  AL.  C.  A.  7th  Cir.  Cer- 
tiorari denied.  Reported  below:  760  F.  2d  1460. 

No.  85-261.  BINLADEN  BSB  LANDSCAPING  v.  M.  V. 
"NEDLLOYD  ROTTERDAM."  C.  A.  2d  Cir.  Certiorari  denied. 
Reported  below:  759  F.  2d  1006. 

No.  85-264.  ARAGON  u  LOCAL  No.  572,  INTERNATIONAL 
BROTHERHOOD  OF  TEAMSTERS  ET  AL.  C.  A.  9th  Cir.  Certiorari 
denied.  Reported  below:  750  F.  2d  1447. 

No.  85-265.  HALLSTROM  ET  AL.  v.  STIVERS  ET  AL.  Sup.  Ct. 
Idaho.  Certiorari  denied. 

No.  85-266.  WILCO  MARSH  BUGGIES  &  DRAGLINES,  INC.  ,  ET 
AL.  v.  KORI  CORP.  ET  AL.  C.  A.  Fed.  Cir.  Certiorari  denied. 
Reported  below:  761  F.  2d  649. 


ORDERS  903 

474  U.  S.  October  15,  1985 

No.  85-267.  MATRIX  ENTERPRISES,  INC.  ,  ET  AL.  v.  MILLING- 
TON  TELEPHONE  Co.,  INC.,  ET  AL.  C.  A.  6th  Cir.  Certiorari 
denied.  Reported  below:  758  F.  2d  653. 

No.  85-268.  MITSUI  &  Co.  (U.  S.  A.),  INC.,  ET  AL.  v.  WEST- 
ERN CONCRETE  STRUCTURES  Co.,  INC.  C.  A.  9th  Cir.  Certio- 
rari denied.  Reported  below:  760  F.  2d  1013. 

No.  85-271.  CALIFORNIA  v.  WALNUT  PROPERTIES,  INC.,  ET 
AL.  App.  Dept.,  Super.  Ct.  CaL,  County  of  Los  Angeles.  Cer- 
tiorari denied. 

No.  85-272.  ARROW  NORTHWEST,  INC.,  ET  AL.  v.  GREATER 
HOUSTON  TRANSPORTATION  Co.,  DBA  YELLOW  CAB  Co.,  ET  AL. 
C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  760  F.  2d 
607. 

No.  85-275.  GAY  v.  COATS  &  CLARK,  INC.,  ET  AL.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  755  F.  2d  1506. 

No.  85-280.  LAWHORN  ET  ux.  v.  KING.  C.  A.  4th  Cir.  Cer- 
tiorari denied.  Reported  below:  765  F.  2d  139. 

No.  85-283.  ARGUS  CHEMICAL  CORP.  v.  FIBRE  GLASS- 
EVERCOAT  Co.,  INC.  C.  A.  Fed.  Cir.  Certiorari  denied.  Re- 
ported below:  759  F.  2d  10. 

No.  85-284.  HAYES  v.  CANNON  ET  AL.  C.  A.  9th  Cir.  Cer- 
tiorari denied.  Reported  below:  753  F.  2d  1081. 

No.  85-285.  PEIL  v.  SPORCK.  C.  A.  3d  Cir.  Certiorari  de- 
nied. Reported  below:  759  F.  2d  312. 

No.  85-286.  BEARY  v.  WEST  PUBLISHING  Co.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  66. 

No.  85-288.  DEANE  ET  AL.  v.  THOMSON  MCKINNON  SECURI- 
TIES, INC.,  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  denied.  Re- 
ported below:  246  U.  S.  App.  D.  C.  43,  762  F,  2d  137. 

No.  85-292.  BECKHAM  v.  HARRIS  ET  AL.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  756  F.  2d  1032. 

No.  85-293.  OZARK  AIR  LINES,  INC.  v.  AIR  LINE  PILOTS 
ASSN.,  INTERNATIONAL.  C.  A.  8th  Cir.  Certiorari  denied. 
Reported  below:  761  F.  2d  1259. 


904  OCTOBER  TERM,  1985 

October  15,  1985  474  U.  S. 

No.  85-296.  GEISLER  v.  KANSAS.  Ct.  App.  Kan.  Certiorari 
denied.  Reported  below:  10  Kan.  App.  2d  xliv. 

No.  85-297.  BIEKER  v.  KANSAS.  Ct.  App.  Kan.  Certiorari 
denied.  Reported  below:  10  Kan.  App.  2d  xliii,  700  P.  2d  148. 

No.  85-302.  MONTGOMERY  u  ALABAMA.  Ct.  Crim.  App.  Ala. 
Certiorari  denied.  Reported  below:  467  So.  2d  972. 

No.  85-305.  FRYZEL,  DIRECTOR,  DEPARTMENT  OF  FINANCIAL 
INSTITUTIONS  v.  CASH  CURRENCY  EXCHANGE,  INC.,  ET  AL. 
C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  762  F.  2d 
542. 

No.  85-310.  MONTGOMERY  WARD  &  Co.,  INC.  v.  DABNEY. 
C.  A.  8th  Cir.  Certiorari  denied.  Reported  below:  761  F.  2d 
494. 

No.  85-313.  CAVROS  v.  CONNECTICUT.  Sup.  Ct.  Conn.  Cer- 
tiorari denied.  Reported  below:  196  Conn.  519,  494  A.  2d  550. 

No.  85-315.  ITALIANO  v.  Omo.  Sup.  Ct.  Ohio.  Certiorari 
denied.  Reported  below:  18  Ohio  St.  3d  38,  479  N.  E.  2d  857. 

No.  85-317.  HESTNES  ET  AL.  v.  COMMISSIONER  OF  INTERNAL 
REVENUE.  C.  A.  7th  Cir.  Certiorari  denied.  Reported  below: 
762  F.  2d  1015. 

No.  85-323.  B  &  G  CRANE  SERVICE,  INC.  v.  DOLPHIN  TITAN 
INTERNATIONAL,  INC.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  762  F.  2d  1292. 

No.  85-325.  BRUSCANTINI  v.  UNITED  STATES.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  640. 

No.  85-327.  WARD  v.  L  &  C  MARINE  TRANSPORT,  LTD. 
C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  755  F.  2d 
1457. 

No.  85-336.  EUBANKS  v.  O'BRIEN  ET  AL.  Ct.  App.  Colo. 
Certiorari  denied.  Reported  below:  701  P.  2d  614. 

No.  85-339.  JOHNSTON  v.  DOWLING  ET  AL.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  145. 

No.  85-341.  VILLARREAL  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  764  F.  2d  1048. 


ORDERS  905 

474  U.  S.  October  15,  1985 

No.     85-344.        DUTKA    V.     DEPARTMENT    OF    THE    TREASURY. 

C.  A.  Fed.  Cir.     Certiorari  denied. 

No.  85-347.  JACOB  u  ATTORNEY  GRIEVANCE  COMMISSION  OF 
MARYLAND.  Ct.  App.  Md.  Certiorari  denied.  Reported  below: 
303  Md.  172,  492  A.  2d  905. 

No.  85-352.  NORTH  AMERICAN  REPORTING,  INC.,  ET  AL.  v. 
UNITED  STATES.  C.  A.  D.  C.  Cir.  Certiorari  denied.  Re- 
ported below:  238  U.  S.  App.  D.  C.  300,  740  F.  2d  50. 

No.  85-355.  BROWN  ET  AL.  u  UNITED  STATES.  C.  A.  8th 
Cir.  Certiorari  denied.  Reported  below:  763  F.  2d  984. 

No.  85-396.  DUFF  u  VIRGINIA.  Cir.  Ct.  Rockingham 
County,  Va.  Certiorari  denied. 

No.  85-418.  CRAWFORD,  SPECIAL  ADMINISTRATRIX  OF  THE 
ESTATES  OF  PAWLISA  ET  AL.  v.  EDMONSON  ET  AL.  C.  A.  7th 
Cir.  Certiorari  denied.  Reported  below:  764  F.  2d  479. 

No.  85-427.  McGEE  v.  FIRST  FEDERAL  SAVINGS  &  LOAN  AS- 
SOCIATION OF  BRUNSWICK.  C.  A.  llth  Cir.  Certiorari  denied. 
Reported  below:  761  F.  2d  647. 

No.  85-433.     BISIG  v.  UNITED  STATES; 
No.  85-5330.     GREEN  u  UNITED  STATES; 
No.  85-5368.     HARDIN  v.  UNITED  STATES;  and 
No.   85-5379.      HARDIN  v.  UNITED  STATES.      C.  A.  6th  Cir. 
Certiorari  denied.     Reported  below:  770  F.  2d  167. 

No.  85-443.  KWIATECKI  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  914. 

No.  85-450.  BRIDGEPORT  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  277. 

No.  85-452.  DALE  ET  ux.  v.  COMMISSIONER  OF  INTERNAL 
REVENUE.  C.  A.  2d  Cir.  Certiorari  denied. 

No.  85-5025.  HERNANDEZ  v.  UNITED  STATES.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  755  F.  2d  830. 

No.  85-5062.  GRIFFIN  v.  SCULLY,  SUPERINTENDENT,  GREEN 
HAVEN  CORRECTIONAL  FACILITY.  C.  A.  2d  Cir.  Certiorari 
denied. 


906  OCTOBER  TERM,  1985 

October  15,  1985  474  U.  S. 

No.  85-5073.    ALONGI  v.  UNITED  STATES;  and 
No.  85-5134.     MUSTACCHIO  v.  UNITED  STATES.     C.  A.  3d  Cir. 
Certiorari  denied.     Reported  below:  759  F.  2d  1099. 

No.  85-5149.  FUENTES  u  NEW  YORK.  Ct.  App.  N.  Y.  Cer- 
tiorari denied.  Reported  below:  64  N.  Y.  2d  993,  478  N.  E.  2d 
203. 

No.  85-5226.  WILLIAMS  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied.  Reported  below:  483  A.  2d  292. 

No.  85-5231.  TURNER  u  MORRIS,  WARDEN.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  277. 

No.  85-5246.  DELESPINE  u  McCoTTER,  DIRECTOR,  TEXAS 
DEPARTMENT  OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari 
denied. 

No.  85-5247.  ENRIQUEZ  v.  FLORIDA.  Dist.  Ct.  App.  Fla.,  3d 
Dist.  Certiorari  denied.  Reported  below:  449  So.  2d  845. 

No.  85-5250.  STURM  v.  CALIFORNIA.  C.  A.  9th  Cir.  Certio- 
rari denied. 

No.  85-5252.  SANFORD  v.  BRADLEY,  JUDGE,  ET  AL.  C.  A.  3d 
Cir.  Certiorari  denied. 

No.  85-5256.  MOORE  v.  ORNER,  SHAYNE  &  REIZNER,  INC. 
C.  A.  7th  Cir.  Certiorari  denied. 

No.  85-5266.  IN  RE  BAKER.  Ct.  App.  Wash.  Certiorari 
denied. 

No.  85-5269.  STEWART  u  WISCONSIN.  Sup.  Ct.  Wis.  Cer- 
tiorari denied.  Reported  below:  123  Wis.  2d  547,  371  N.  W.  2d 
375. 

No.  85-5274.  WILLIAMS  u  SIELAFF,  DIRECTOR,  VIRGINIA  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  4th  Cir.  Certiorari  denied. 
Reported  below:  762  F.  2d  1001. 

No.  85-5279.  GOLDMAN  v.  MASSACHUSETTS.  Sup.  Jud.  Ct. 
Mass.  Certiorari  denied.  Reported  below:  395  Mass.  495,  480 
N.  E.  2d  1023. 

No.  85-5280.  KALTENBACH  u  ACADIAN  METROPOLITAN  CODE 
AUTHORITY.  Ct.  App.  La.,  3d  Cir.  Certiorari  denied. 


ORDERS  907 

474  U.  S.  October  15,  1985 

No.  85-5281.  GREIF  ET  AL.  v.  CITY  OF  BEDFORD,  OHIO. 
C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  762  F.  2d 
1007. 

No.  85-5282.  WELCH  v.  OHIO.  Ct.  App.  Ohio,  Cuyahoga 
County.  Certiorari  denied. 

No.  85-5289.  AGUILERA  v.  COOK  COUNTY  POLICE  AND  COR- 
RECTIONS MERIT  BOARD.  C.  A.  7th  Cir.  Certiorari  denied. 
Reported  below:  760  F.  2d  844. 

No.  85-5294.  MCAFEE  v.  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 
Reported  below:  761  F.  2d  1124. 

No.  85-5296.  CODER  v.  GRINE  ET  AL.  C.  A.  3d  Cir.  Certio- 
rari denied. 

No.  85-5297.  KOSYLA  v.  ILLINOIS.  App.  Ct.  111.,  2d  Dist. 
Certiorari  denied.  Reported  below:  125  111.  App.  3d  1168,  481 
N.  E.  2d  365. 

No.  85-5300.  WILSON  v.  BARNES  ET  AL.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  909. 

No.  85-5303.  HOWARD  v.  RADIO  CORPORATION  OF  AMERICA 
ET  AL.  C.  A.  7th  Cir.  Certiorari  denied. 

No.  85-5305.  FARRIS  v.  UNITED  STATES  POSTAL  SERVICE. 
C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d 
177. 

No.  85-5315.  GARCIA  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1222. 

No.  85-5324.  MASTERS  v.  COMMISSIONER  OF  INTERNAL  REVE- 
NUE. C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  758 
F.  2d  656. 

No.  85-5340.  LOVELACE  v,  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1166. 

No.  85-5341.  ARBELAEZ  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  167. 

No.  85-5342.  BEARD  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  1477. 


908  OCTOBER  TERM,  1985 

October  15,  1985  474  U.  S. 

No.  85-5357.  BROWN  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  85-5363.  GILLIS  v.  ORR,  SECRETARY  OF  THE  UNITED 
STATES  AIR  FORCE.  C.  A.  4th  Cir.  Certiorari  denied.  Re- 
ported below:  762  F.  2d  998. 

No.  85-5364.  DAVIS  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  766  F.  2d  1452. 

No.  85-5369.  BLANDON-GAVIRIA  v.  UNITED  STATES.  C.  A. 
6th  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  167. 

No.  85-5377.  STAPLES  v.  UNITED  STATES.  C.  A,  5th  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  415. 

No.  85-5382.  WALLACE  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1001. 

No.  85-5383.  LAZARD  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  916. 

No.  85-5390.  REVELS  u  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  926. 

No.  85-5391.  BRISBON  u  ILLINOIS.  Sup.  Ct.  111.  Certiorari 
denied.  Reported  below:  106  111.  2d  342,  478  N.  E.  2d  402. 

No.  85-5396.  POINTER  u  OHIO.  Ct.  App.  Ohio,  Cuyahoga 
County.  Certiorari  denied. 

No.  85-5407.  FAULISI  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1167. 

No.  85-5410.  VEATCH  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1077. 

No.  85-5416.  HARRELSON  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  754  F.  2d  1153. 

No.  85-5420.  MARSHALL  ET  AL.  v.  MAINE.  Sup.  Jud.  Ct.  Me. 
Certiorari  denied.  Reported  below:  491  A.  2d  554. 

No.  85-5423.  SWAIN  u  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  173. 

No.  85-5429.  SWEENEY  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  150. 


ORDERS  909 

474  U.  S.  October  15,  1985 

No.  85-5435.  COMO  v.  UNITED  STATES.  C.  A.  9th  Cir.  Cer- 
tiorari  denied.  Reported  below:  767  F.  2d  935. 

No.  85-5442.  HAWES  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  1352. 

No.  84-1699.  PUBLIC  SERVICE  COMPANY  OF  INDIANA,  INC.  v. 
INTERSTATE  COMMERCE  COMMISSION  ET  AL.  C.  A.  D.  C.  Cir. 
Motion  of  National  Association  of  Regulatory  Utility  Commission- 
ers for  leave  to  file  a  brief  as  amicus  curiae  granted.  Certiorari 
denied.  Reported  below:  242  U.  S.  App.  D.  C.  75,  749  F.  2d  753. 

No.  84-1738.  SACKETT-CHICAGO,  INC.  v.  MIDGETT.  Sup.  Ct. 
111.  Motion  of  respondent  for  leave  to  proceed  in  forma  pauperis 
denied.  Certiorari  denied.  Reported  below:  105  111.  2d  143,  473 
N.  E.  2d  1280. 

No.  84-1821.  FORD,  WARDEN  v.  FORD.  C.  A.  llth  Cir.  Mo- 
tion of  respondent  for  leave  to  proceed  in  forma  pauperis  granted. 
Certiorari  denied.  Reported  below:  749  F.  2d  681. 

No.  84-1857.  LUCKER  ET  AL.  v.  UNITED  STATES.  C.  A.  Fed. 
Cir.  Certiorari  denied.  JUSTICE  WHITE  and  JUSTICE  POWELL 
would  grant  Certiorari.  Reported  below:  765  F.  2d  161. 

No.  85-65.  SHANGHAI  POWER  Co.  v.  UNITED  STATES.  C.  A. 
Fed.  Cir.  Certiorari  denied.  JUSTICE  WHITE  and  JUSTICE  POW- 
ELL would  grant  certiorari.  Reported  below:  765  F.  2d  159. 

No.  84-1925.  NATIONAL  TREASURY  EMPLOYEES  UNION  ET 
AL.  v.  O'CONNOR,  SPECIAL  COUNSEL,  MERIT  SYSTEMS  PRO- 
TECTION BOARD.  C.  A.  D.  C.  Cir.  Certiorari  denied.  JUSTICE 
WHITE  would  grant  certiorari.  Reported  below:  241  U.  S.  App. 
D.  C.  311,  747  F.  2d  748. 

No.  84-1928.  PACIFIC  EMPLOYERS  INSURANCE  Co.  v.  M/V 
CAPT.  W.  D.  CARGILL  ET  AL.  C.  A.  5th  Cir.  Certiorari  denied. 
JUSTICE  BLACKMUN  took  no  part  in  the  consideration  or  decision 
of  this  petition.  Reported  below:  751  F.  2d  801. 

JUSTICE  WHITE,  dissenting. 

In  this  case,  the  United  States  Court  of  Appeals  for  the  Fifth 
Circuit  held,  respecting  the  District  Court's  dismissal  of  a  declara- 
tory action,  that  review  is  limited  to  the  question  of  whether  the 
District  Court  abused  its  discretion.  751  F.  2d  801,  804  (1985). 


910  OCTOBER  TERM,  1985 

October  15,  1985  474  U.  S. 

This  standard  of  review  conflicts  with  that  adopted  by  other 
Courts  of  Appeals.  See,  e.  g.,  Bilbrey  v.  Brown,  738  F.  2d  1462, 
1470  (CA9  1984)  (whether  a  district  court  properly  exercised  its 
discretion  to  grant  declaratory  relief  is  subject  to  more  searching 
review  on  appeal  than  under  the  "abuse  of  discretion"  standard); 
International  Harvester  Co.  v.  Deere  &  Co.,  623  F.  2d  1207,  1217 
(CA7  1980)  (a  court  of  appeals,  in  deciding  whether  jurisdiction 
should  be  taken  in  a  declaratory  action,  does  not  defer  to  the  judg- 
ment of  the  district  court,  but  must  exercise  its  own  sound  discre- 
tion). I  would  grant  certiorari  to  resolve  this  conflict  among  the 
Courts  of  Appeals. 

No.  84-2016.  GREYHOUND  LINES,  INC.  v.  WILHITE  ET  AL. 
C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  760  F.  2d 
278. 

JUSTICE  WHITE,  dissenting. 

In  this  case,  the  United  States  Court  of  Appeals  for  the  Ninth 
Circuit  held  that  DelCostello  v.  Teamsters,  462  U.  S.  151  (1983) 
(actions  brought  under  §  301  of  the  Labor  Management  Relations 
Act,  29  U.  S.  C.  §  185,  are  governed  by  the  6-month  statute  of 
limitations  provided  in  §  10(b)  of  the  National  Labor  Relations 
Act,  29  U.  S.  C.  §  160(b)),  was  not  to  be  applied  retroactively 
because  such  retroactive  application  would  shorten  the  applicable 
limitations  period.  Cf.  Glover  v.  United  Grocers,  Inc.,  746  F.  2d 
1380  (CA9  1984)  (applying  DelCostello  retroactively  when  doing  so 
lengthened  time  for  filing).  In  so  holding,  the  Court  of  Appeals 
followed  a  prior  decision  in  that  court  that  relied  on  the  factors 
outlined  in  Chevron  Oil  Co.  v.  Huson,  404  U.  S.  97,  106-107 
(1971),  in  deciding  this  retroactivity  question.  See  Barina  v. 
Gulf  Trading  &  Transportation  Co.,  726  F.  2d  560,  563-564  (CA9 
1984). 

The  decision  below  conflicts  with  those  in  other  Circuits  which 
have  held  that  DelCostello  should  be  applied  retroactively.  See, 
e.  g.,  Smith  v.  General  Motors  Corp.,  747  F.  2d  372  (CA6  1984) 
(en  bane);  Graves  v.  Smith's  Transfer  Corp.,  736  F.  2d  819  (CA1 
1984).  Other  Circuits  have  also  held  that  the  Huson  analysis  is 
not  necessary  to  determine  whether  retroactivity  is  appropriate 
in  this  context.  See,  e.  g.,  Welyczko  v.  U.  S.  Air,  Inc.,  733  F. 
2d  239  (CA2),  cert,  denied,  469  U.  S.  1036  (1984);  Smith,  supra. 
I  would  grant  certiorari  to  resolve  these  conflicts. 


ORDERS  911 

474  U.  S.  October  15,  1985 

No.  84-2034.  SAVILLE  u  WESTINGHOUSE  ELECTRIC  CORP. 
ET  AL.  C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  760 
F.  2d  261. 

JUSTICE  WHITE,  dissenting. 

In  this  case,  the  United  States  Court  of  Appeals  for  the  Third 
Circuit  held  that  DelCostello  v.  Teamsters,  462  U.  S.  151  (1983) 
(actions  brought  under  §  301  of  the  Labor  Management  Relations 
Act,  29  U.  S.  C.  §  185,  are  governed  by  the  6-month  statute  of 
limitations  provided  in  §  10(b)  of  the  National  Labor  Relations 
Act,  29  U.  S.  C.  §  160(b»,  applies  retroactively.  In  so  holding, 
the  Court  of  Appeals  followed  a  prior  decision  in  that  court  which 
relied  on  the  factors  outlined  in  Chevron  Oil  Co.  v.  Huson,  404 
U.  S.  97,  106-107  (1971),  in  making  that  retroactivity  determina- 
tion. See  Perez  v.  Dana  Corp.,  Parish  Frame  Div.,  718  F.  2d 
681  (CA3  1983).  For  the  reasons  stated  in  my  dissent  in  Grey- 
hound Lines,  Inc.  v.  Wilhite,  ante,  p.  910,  I  would  grant  certio- 
rari  in  this  case. 

No.  84-6962.     CAPE  v.  FRANCIS,  WARDEN.     C.  A.  llth  Cir.; 
No.  84-6975.     ALDERMAN  v.  GEORGIA.     Sup.  Ct.  Ga.;  and 
No.  85-5171.     WILSON  v.  LOUISIANA.     Sup.  Ct.  La.      Certio- 
rari  denied.      Reported   below:    No.    84-6962,    741    F.    2d    1287; 
No.  84-6975,  254  Ga.  206,  327  S.  E.  2d  168;  No.  85-5171,  467 
So.  2d  503. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentences  in  these  cases. 

No.  85-5116.  LUCAS  v.  NEW  YORK.  App.  Div.,  Sup.  Ct. 
N.  Y.,  3d  Jud.  Dept.  Certiorari  denied.  Reported  below:  105 
App.  Div.  2d  545,  481  N.  Y,  S.  2d  789. 

JUSTICE  WHITE,  dissenting. 

The  issue  presented  in  this  case  is  whether  the  prohibition  es- 
tablished in  New  Jersey  v.  Portash,  440  U.  S.  450  (1979),  against 
using  a  statement  obtained  from  a  criminal  defendant  in  violation 
of  his  Fifth  Amendment  right  against  self-incrimination  for  im- 


912  OCTOBER  TERM,  1985 

October  15,  18,  21,  1985  474  U.  S. 

peachment  purposes  applies  equally  to  statements  taken  in  viola- 
tion of  the  Sixth  Amendment  right  to  counsel.  The  United  States 
Court  of  Appeals  for  the  Second  Circuit  in  United  States  v. 
Brown,  699  F.  2d  585  (1983),  and  the  Tenth  Circuit  in  United 
States  v.  McManaman,  606  F.  2d  919  (1979)  (pre-Portasti),  have 
answered  this  question  in  the  affirmative.  The  Appellate  Divi- 
sion of  the  Supreme  Court  of  New  York  in  the  present  case,  105 
App.  Div.  2d  545,  481  N.  Y.  S.  2d  789  (1984),  and  the  New  York 
Court  of  Appeals  in  New  York  v.  Ricco,  56  N.  Y.  2d  320,  437 
N.  E.  2d  1097  (1982),  however,  have  given  the  opposite  answer. 
I  would  grant  certiorari  to  resolve  this  conflict. 

Rehearing  Denied 

No.  84-6738.  SHAHRYAR  v.  MARTIN,  WARDEN,  472  U.  S. 
1031.  Motion  for  leave  to  file  petition  for  rehearing  denied. 

OCTOBER  18,  1985 
Dismissal  Under  Rule  S3 

No.  85-304.  CURTIS  v.  DOUBLEDAY  &  Co.,  INC.  C.  A.  2d 
Cir.  Certiorari  dismissed  under  this  Court's  Rule  53.  Reported 
below:  763  F.  2d  495. 

OCTOBER  21,  1985 
Appeals  Dismissed 

No.  84-2011.  OETTINGER  v.  OETTINGER.  Appeal  from  Ct. 
App.  La.,  2d  Cir.,  dismissed  for  want  of  substantial  federal  ques- 
tion. Reported  below:  463  So.  2d  875. 

JUSTICE  WHITE,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

Appellant  Albert  Oettinger  and  appellee  Leona  Gordon  Oettin- 
ger  were  married  in  Louisiana  in  1967.  Both  had  been  married 
before,  and  both  had  substantial  property  of  their  own  at  the  time 
of  the  marriage.  Unbeknownst  to  appellant,  at  the  time  of  the 
marriage  appellee  recorded  a  declaration  of  paraphernality  under 
the  authority  of  Article  2386  of  the  Louisiana  Civil  Code.  This 
declaration  allowed  a  wife  to  reserve  for  herself  any  fruits  from 
her  paraphernal  property  (nondotal  property  she  brought  into  the 
marriage);  it  also  gave  her  the  right  to  manage  such  property  and 
the  fruits  from  such  property.  See  La.  Civ.  Code  Ann.,  Art. 


ORDERS  913 

912  WHITE,  J.,  dissenting 

2386  (West  1971).*  Under  the  Louisiana  marital  property  laws  in 
effect  at  that  time,  the  husband  would,  absent  such  a  declaration, 
have  the  right  to  manage  the  fruits  of  the  wife's  paraphernal  prop- 
erty, and  those  fruits  would  thus  normally  fall  into  the  community 
property.  See  La.  Civ.  Code  Ann.,  Arts.  2402,  2404  (West  1971). 

Under  Louisiana  law  at  that  time,  no  similar  provision  existed 
for  the  husband.  For  a  husband  to  reserve  the  fruits  of  his  sepa- 
rate property  to  himself,  he  had  to  prove  that  they  were  separate 
property;  a  simple  declaration  was  not  possible  for  him.  See  La. 
Civ.  Code  Ann.,  Art.  2405  (West  1971).  Thus,  although  a  hus- 
band had  the  right  to  manage  his  separate  property  (because  he 
had  the  right  under  law,  with  certain  exceptions,  to  manage  all 
separate  and  community  property),  the  fruits  from  that  property 
that  accrued  during  the  marriage  would  normally  become  commu- 
nity property. 

During  their  marriage,  appellant  and  appellee  attempted  to 
maintain  their  finances  separately.  In  1980,  they  were  divorced. 
In  1982,  appellee  sued  for  a  partition  of  former  community  prop- 
erty and  for  settlement  of  the  former  community.  Appellant, 
mindful  of  this  Court's  recent  gender-discrimination  decisions,  see, 
e.  g.,  Orr  v.  Or,  440  U.  S.  268  (1979),  challenged  inclusion  in  the 
community  of  the  property  that  he  had  brought  into  the  marriage 
and  of  the  fruits  from  that  property  on  the  ground  that  the  Louisi- 
ana Civil  Code  provision  that  allowed  the  wife  but  not  the  husband 
to  reserve  the  fruits  of  such  property  to  herself  by  a  mere  declara- 
tion of  paraphernality  was  an  unconstitutional  denial  of  equal  pro- 
tection. That  provision,  Article  2386,  had  been  repealed  by  the 


*Article  2386  stated: 

"The  fruits  of  the  paraphernal  property  of  the  wife,  wherever  the  property 
be  located  and  however  administered,  whether  natural,  civil,  including  inter- 
est, dividends  and  rents,  or  from  the  result  of  labor,  fall  into  the  conjugal 
partnership,  if  there  exists  a  community  of  acquets  and  gains;  unless  the  wife, 
by  written  instrument,  shall  declare  that  she  reserves  all  of  such  fruits  for  her 
own  separate  use  and  benefit  and  her  intention  to  administer  such  property 
separately  and  alone.  The  said  instrument  shall  be  executed  before  a  Notary 
Public  and  two  witnesses  and  duly  recorded  in  the  Conveyance  Records  of  the 
Parish  where  the  community  is  domiciled. 

"If  there  is  no  community  of  gains,  each  party  enjoys,  as  he  chooses,  that 
which  comes  to  his  hand;  but  the  fruits  and  revenues  which  are  existing  at  the 
dissolution  of  the  marriage,  belong  to  the  owner  of  the  things  which  produce 
them. " 


914  OCTOBER  TERM,  1985 

WHITE,  J.,  dissenting  474  U.  S. 

Louisiana  Legislature  in  1979,  but  appellee's  declaration  effected 
under  it  in  1967  remained  valid. 

The  state  trial  court  considered  and  rejected  appellant's  con- 
stitutional argument.  The  trial  court  noted  that  the  laws  effec- 
tive in  1967  gave  the  husband,  without  any  action  on  his  part  or 
his  wife's  part,  the  ability  to  manage  the  community  property,  his 
separate  property,  and  her  separate  property.  Although  the  law 
did  discriminate  on  the  basis  of  sex,  the  trial  court  held  that  the 
paraphernality  provision  was  substantially  related  to  important 
governmental  objectives.  Specifically,  the  trial  court  held  that 
the  purpose  of  Article  2386  had  been  to  "suppl[y]  the  wife  with  a 
limited  degree  of  protection  with  respect  to  her  separate  property 
against  her  husband."  App.  to  Juris.  Statement  B-3. 

On  appeal  from  this  decision,  the  Louisiana  Court  of  Appeal 
cited  the  legal  standard  set  forth  by  this  Court  for  addressing 
gender-discrimination  cases,  i.  e.,  a  gender  classification  must 
be  substantially  related  to  an  important  governmental  interest, 
noted  the  various  gender-discrimination  cases  of  this  Court — some 
of  which  upheld  gender-based  classifications  and  some  of  which 
struck  them  down— and  concluded  that  the  challenged  provision 
was  substantially  related  to  the  important  state  interest  of  "allow- 
ing wives  an  opportunity  to  manage  their  own  separate  property 
on  an  equal  basis  with  their  husbands."  463  So.  2d  875,  878 
(1985).  The  Court  of  Appeal  concluded  that  any  law  attempting 
to  equalize  the  status  of  wives  and  husbands  could  not  be  uncon- 
stitutional. The  Supreme  Court  of  Louisiana  denied  appellant's 
application  for  a  writ  of  certiorari.  466  So.  2d  467  (1985). 

In  his  jurisdictional  statement,  appellant  again  asserts  that  the 
application  of  former  Article  2386  constitutes  a  violation  of  equal 
protection.  I  believe  that  this  argument  presents  a  substantial 
federal  question.  Article  2386  treated  husbands  and  wives  dif- 
ferently. The  only  justification  for  this  differential  treatment 
that  appears  in  the  record  was  that  of  allowing  the  wife  some 
parity  in  the  management  of  her  separate  property.  To  begin 
with,  this  justification  assumes  that  the  overall  statutory  scheme 
governing  the  management  of  marital  property,  under  which  the 
husband  is  the  automatic  manager  of  all  property  owned  by  the 
spouses  together  or  separately,  is  seriously  suspect  under  our 
prior  decisions  in  this  area.  See,  e.  g.,  Kirchberg  v.  Feenstra, 
450  U.  S.  455  (1981);  Orr  v.  Or,  supra.  I  believe  that  there  is 


ORDERS  915 

474  U.  S.  October  21,  1985 

a  substantial  federal  question  as  to  whether  a  facially  discrimina- 
tory provision  may  be  justified  on  the  ground  that  it  is  a  remedial 
exception  to  an  overall  statutory  scheme  that  is  constitutionally 
defective.  See  Parham  v.  Hughes,  441  U.  S.  347,  361-368  (1979) 
(WHITE,  J.,  dissenting). 

Further,  I  do  not  see  that  such  a  justification,  even  assuming  its 
validity,  can  support  a  provision  that  enables  a  wife  not  only  to 
manage  the  fruits  of  her  paraphernal  property  but  also  to  keep 
those  fruits  separate  from  the  community  property  with  a  mere 
declaration,  which  latter  ability  is  not  given  to  her  husband.  I 
thus  believe  that  there  is  also  a  substantial  question  as  to  whether 
the  justification,  even  if  valid,  is  adequately  tailored  to  the  as- 
serted governmental  interest. 

Nor  do  I  believe  that  the  fact  that  Article  2386  is  no  longer  in 
effect  should  prevent  our  considering  this  issue.  Although  it  has 
been  repealed,  former  Article  2386  remains  relevant  with  respect 
to  declarations  filed  before  that  date.  Further,  we  have  previ- 
ously considered  the  application  of  a  statutory  scheme  which  had 
been  repealed  prior  to  our  decision.  See,  e.  g.,  Kirchberg,  supra, 
at  459,  n.  6.  I  do  not  believe  that  this  fact  renders  the  federal 
question  presented  by  this  case  insubstantial.  Consequently,  I 
would  note  probable  jurisdiction. 

No.  85-118.  TRUMP  ET  AL.  v.  CHU,  COMMISSIONER  OF  NEW 
YORK  STATE  TAX  COMMISSION.  Appeal  from  Ct.  App.  N.  Y.  dis- 
missed for  want  of  substantial  federal  question.  Reported  below: 
65  N.  Y.  2d  20,  478  N.  E.  2d  971. 

No.  85-446.  ROBERTS  ENTERPRISES,  INC.  v.  SECRETARY  OF 
TRANSPORTATION  OF  KANSAS.  Appeal  from  Sup.  Ct.  Kan.  dis- 
missed for  want  of  substantial  federal  question.  Reported  below: 
237  Kan.  276,  699  P.  2d  479. 

No.  85-159.  REMMENGA  ET  ux.  v.  CALIFORNIA  COASTAL  COM- 
MISSION. Appeal  from  Ct.  App.  Cal.,  2d  App.  Dist.,  dismissed 
for  want  of  substantial  federal  question.  THE  CHIEF  JUSTICE, 
JUSTICE  BRENNAN,  and  JUSTICE  REHNQUIST  would  note  probable 
jurisdiction  and  set  case  for  oral  argument.  Reported  below:  163 
Cal.  App.  3d  623,  209  Cal.  Rptr.  628. 

No.  85-204.  CHICAGO  TRIBUNE  Co.  ET  AL.  v.  JOHNSON,  DI- 
RECTOR, ILLINOIS  DEPARTMENT  OF  REVENUE,  ET  AL.  Appeal 


916  OCTOBER  TERM,  1985 

October  21,  1985  474  U.  S. 

from  Sup.  Ct.  111.  dismissed  for  want  of  substantial  federal  ques- 
tion. JUSTICE  WHITE,  JUSTICE  STEVENS,  and  JUSTICE  O'CON- 
NOR would  note  probable  jurisdiction  and  set  case  for  oral  argu- 
ment. Reported  below:  106  111.  2d  63,  477  N.  E.  2d  482. 

No.  85-330.  GLENWOOD  T.  V.,  INC.,  ET  AL.  v.  RATNER,  COM- 
MISSIONER, DEPARTMENT  OF  CONSUMER  AFFAIRS  OF  THE  CITY 
OF  NEW  YORK.  Appeal  from  Ct.  App.  N.  Y.  dismissed  for  want 
of  jurisdiction.  Treating  the  papers  whereon  the  appeal  was 
taken  as  a  petition  for  writ  of  certiorari,  certiorari  denied.  Re- 
ported below:  65  N.  Y.  2d  642,  481  N.  E.  2d  252. 

No.  85-375.  LUPERT  v.  CALIFORNIA  STATE  BAR  ET  AL.  Ap- 
peal from  C.  A.  9th  Cir.  dismissed  for  want  of  jurisdiction. 
Treating  the  papers  whereon  the  appeal  was  taken  as  a  petition 
for  writ  of  certiorari,  certiorari  denied.  Reported  below:  761  F. 
2d  1325. 

Certiorari  Granted— Vacated  and  Remanded 

No.  85-278.  HUTTO,  INDIVIDUALLY  AND  AS  STATE  CORREC- 
TIONS COMMISSIONER,  ET  AL.  v.  JONES  ET  AL.  C.  A.  8th  Cir. 
Certiorari  granted,  judgment  vacated,  and  case  remanded  to  the 
Court  of  Appeals  with  instructions  to  dismiss  the  appeal  for  want 
of  a  final  judgment.  Liberty  Mutual  Ins.  Co.  v.  Wetzel,  424  U.  S. 
737,  742-745  (1976).  Reported  below:  763  F.  2d  979. 

Certiorari  Dismissed 

No.  85-172.  CATALDO  v.  MESKILL,  JUDGE,  UNITED  STATES 
COURT  OF  APPEALS  FOR  THE  SECOND  CIRCUIT.  C.  A.  2d  Cir. 
Certiorari  dismissed  for  want  of  jurisdiction. 

Miscellaneous  Orders 

No. .     DEAN  v.  UNITED  STATES.      Motion  to  direct 

the  Clerk  to  waive  the  Rules  and  file  the  petition  for  writ  of  cer- 
tiorari denied. 

No.  A-232  (85-5403).  HANDLEY  ET  AL.  v.  UNITED  STATES. 
C.  A.  llth  Cir.  Application  to  recall  and  stay  mandate,  ad- 
dressed to  JUSTICE  WHITE  and  referred  to  the  Court,  denied. 

No.  D-497.  IN  RE  DISBARMENT  OF  MOORE.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  471  U.  S.  1133.] 

No.  D-505.  IN  RE  DISBARMENT  OF  HURD.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  472  U.  S.  1024.] 


ORDERS  917 

474  U.  S.  October  21,  1985 

No.  D-525.  IN  RE  DISBARMENT  OF  PHELPS.  It  is  ordered 
that  Robert  Edward  Phelps,  Jr.,  of  Houston,  Tex.,  be  suspended 
from  the  practice  of  law  in  this  Court  and  that  a  rule  issue,  return- 
able within  40  days,  requiring  him  to  show  cause  why  he  should 
not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-526.  IN  RE  DISBARMENT  OF  DOBBS.  It  is  ordered  that 
Hubert  Lee  Dobbs,  Jr.,  of  Phoenix,  Ariz.,  be  suspended  from  the 
practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
"within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-527.  IN  RE  DISBARMENT  OF  MANN.  It  is  ordered  that 
Michael  Benjamin  Mann,  of  Panama  City,  Fla.,  be  suspended  from 
the  practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  104,  Orig.  NEW  JERSEY  v.  NEVADA  ET  AL.  Motion  to  ex- 
pedite consideration  of  motion  for  leave  to  file  bill  of  complaint  de- 
nied. Motion  for  preliminary  injunction  denied.  Motion  for  leave 
to  file  bill  of  complaint  granted  and  defendants  allowed  60  days 
within  which  to  answer. 

No.  84-1661.  KIMMELMAN,  ATTORNEY  GENERAL  OF  NEW 
JERSEY,  ET  AL.  v.  MORRISON.  C.  A.  3d  Cir.  [Certiorari 
granted,  ante,  p.  815.]  Motion  for  appointment  of  counsel 
granted,  and  it  is  ordered  that  William  E.  Staehle,  Esquire,  of 
Chatham,  N.  J.,  be  appointed  to  serve  as  counsel  for  respondent 
in  this  case. 

Probable  Jurisdiction  Noted  or  Postponed 

No.  84-2015.       MACDONALD,  SOMMER  &  FRATES  V.  COUNTY  OF 

YOLO  ET  AL.     Appeal  from  Ct.  App.  Cal.,  3d  App.  Dist.     Proba- 
ble jurisdiction  noted. 

No.  84-1903.  POSADAS  DE  PUERTO  Rico  ASSOCIATES,  DBA 
CONDADO  HOLIDAY  INN  v.  TOURISM  COMPANY  OF  PUERTO  Rico 
ET  AL.  Appeal  from  Sup.  Ct.  P.  R.  Further  consideration  of 
question  of  jurisdiction  postponed  to  hearing  of  case  on  the  merits. 

Certiorari  Granted 

No.  85-224.  CITY  OF  RIVERSIDE  ET  AL.  v.  RIVERA  ET  AL. 
C.  A.  9th  Cir.  Certiorari  granted.  Reported  below:  763  F.  2d 
1580. 


918  OCTOBER  TERM,  1985 

October  21,  1985  474  U.  S. 

No.  85-289.  UNITED  STATES  DEPARTMENT  OF  TRANSPORTA- 
TION ET  AL.  v.  PARALYZED  VETERANS  OF  AMERICA  ET  AL. 
C.  A.  D.  C.  Cir.  Certiorari  granted.  Reported  below:  243  U.  S. 
App.  D.  C.  237,  752  F.  2d  694. 

No.  85-363.  NEW  YORK  u  P.  J.  VIDEO,  INC.,  DBA  NETWORK 
VIDEO,  ET  AL.  Ct.  App.  N.  Y.  Certiorari  granted.  Reported 
below:  65  N.  Y.  2d  566,  483  N.  E.  2d  1120. 

No.  84-1972.  FEDERAL  DEPOSIT  INSURANCE  CORPORATION  v. 
PHILADELPHIA  GEAR  CORP.  C.  A.  10th  Cir.  Motion  of  Council 
on  International  Banking,  Inc. ,  for  leave  to  file  a  brief  as  amicus 
curiae  granted.  Certiorari  granted.  Reported  below:  751  F.  2d 
1131. 

No.  85-162.  NEW  MEXICO  v.  EARNEST.  Sup.  Ct.  N.  M.  Mo- 
tion of  respondent  for  leave  to  proceed  in  forma  pauperis  and 
certiorari  granted.  Reported  below:  103  N.  M.  95,  703  P.  2d 
872. 

No.  85-410.  MEMPHIS  COMMUNITY  SCHOOL  DISTRICT  ET  AL. 
v.  STACHURA.  C.  A.  6th  Cir.  Certiorari  granted  limited  to 
Questions  I  and  III  presented  by  the  petition.  Reported  below: 
763  F.  2d  211. 

No.  85-5487.  SMITH  v.  SIELAFF,  DIRECTOR,  VIRGINIA  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  4th  Cir.  Motion  of  peti- 
tioner for  leave  to  proceed  in  forma  pauperis  granted.  Certiorari 
granted  limited  to  Questions  1  and  2  presented  by  the  petition. 
Reported  below:  769  F.  2d  170. 

Certiorari  Denied.      (See  also  Nos.  85-330  and  85-375,  supra.) 
No.  84-1826.     PREVATTE  v.  GIBSON,  JUDGE,  UNITED  STATES 
DISTRICT  COURT  FOR  THE  WESTERN  DISTRICT  OF  MICHIGAN. 
C.  A.  6th  Cir.     Certiorari  denied. 

No.  84-1845.  SORENSEN  v.  FITZGERALD,  TRUSTEE.  C.  A. 
9th  Cir.  Certiorari  denied.  Reported  below:  734  F.  2d  20. 

No.  84-1872.  CONSOLIDATED  RAIL  CORPORATION  v.  HALLA- 
MORE  MOTOR  TRANSPORTATION,  INC.  Sup.  Jud.  Ct.  Mass.  Cer- 
tiorari denied.  Reported  below:  394  Mass.  56,  473  N.  E.  2d  1137. 

No.  84-1919.  PARKS  ET  AL.  v.  BELLETIRE,  DIRECTOR,  DE- 
PARTMENT OF  MENTAL  HEALTH  AND  DEVELOPMENTAL  DISABIL- 


ORDERS  919 

474  U.  S.  October  21,  1985 

ITIES,   ET  AL.      C.   A.   7th  Cir.      Certiorari  denied.      Reported 
below:  753  F.  2d  1397. 

No.  84-1930.  MONTANA  u  HODEL,  SECRETARY  OF  THE  INTE- 
RIOR, ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  denied.  Reported 
below:  242  U.  S.  App.  D.  C.  62,  749  F.  2d  740. 

No.  84-2018.  DlALAMERICA  MARKETING,  INC.  U  BROCK,  SEC- 
RETARY OF  LABOR.  C.  A.  3d  Cir.  Certiorari  denied.  Reported 
below:  757  F.  2d  1376. 

No.  84-6994.  SHELOR  u  KENTUCKY.  Sup.  Ct.  Ky.  Certio- 
rari denied. 

No.  84-7005.  ABDULLAH  v.  NEW  YORK.  App.  Div.,  Sup.  Ct. 
N.  Y.,  2d  Jud.  Dept.  Certiorari  denied.  Reported  below:  108 
App.  Div.  2d  817,  485  N.  Y.  S.  2d  330. 

No.  84-7006.  HOOPER  v.  WASHINGTON.  Sup.  Ct.  Wash. 
Certiorari  denied.  Reported  below:  103  Wash.  2d  1029. 

No.  85-18.  PITTSBURGH  TERMINAL  CORP.  ET  AL.  v.  BALTI- 
MORE &  OHIO  RAILROAD  Co.  ET  AL.  C.  A.  3d  Cir.  Certiorari 
denied.  Reported  below:  760  F.  2d  260. 

No.  85-27.  Los  ANGELES  UNIFIED  SCHOOL  DISTRICT  ET  AL. 
v.  Los  ANGELES  NAACP  ET  AL.;  and 

No.  85-213.  Los  ANGELES  BRANCH  NAACP  ET  AL.  v.  Los 
ANGELES  UNIFIED  SCHOOL  DISTRICT  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  750  F.  2d  731. 

No.  85-96.  AIELLO  ET  AL.  v.  MASSACHUSETTS.  Sup.  Jud.  Ct. 
Mass.  Certiorari  denied.  Reported  below:  394  Mass.  727,  477 
N.  E.  2d  972. 

No.  85-201.  LOVINGER  v.  ILLINOIS.  App.  Ct.  111.,  2d  Dist. 
Certiorari  denied.  Reported  below:  130  111.  App.  3d  105,  473 
N.  E.  2d  980. 

No.  85-308.  ANDERSON  COUNTY,  TENNESSEE,  ET  AL.  v. 
UNITED  STATES.  C.  A.  6th  Cir.  Certiorari  denied.  Reported 
below:  761  F.  2d  1169. 

No.  85-312.  BOHEMIA,  INC.  ,  ET  AL.  v.  BLOCK,  SECRETARY  OF 
AGRICULTURE,  ET  AL.  C.  A.  9th  Cir.  Certiorari  denied.  Re- 
ported below:  753  F.  2d  1482. 


920  OCTOBER  TERM,  1985 

October  21,  1985  474  U.  S. 

No.  85-322.  EAGLE  BOOKS,  INC.  u  JONES  ET  AL.  App.  Ct. 
111.,  4th  Dist.  Certiorari  denied.  Reported  below:  130  111.  App. 
3d  407,  474  N.  E.  2d  444. 

No.  85-326.  GOLDBERG  ET  AL.  u  UNITED  PARCEL  SERVICE 
OF  AMERICA,  INC.,  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied. 
Reported  below:  767  F.  2d  907. 

No.  85-328.  WARNICK  ET  AL.  v.  JIN  CHA  ET  AL.  Sup.  Ct. 
Ind.  Certiorari  denied.  Reported  below:  476  N.  E.  2d  109. 

No.  85-338.  REDIC  v.  SCHWARTZ.  C.  A.  4th  Cir.  Certiorari 
denied.  Reported  below:  762  F.  2d  1181. 

No.  85-340.  HART  SCHAFFNER  &  MARX  ET  AL.  v.  NATURAL 
FOOTWEAR,  LTD.,  ET  AL.  C.  A.  3d  Cir.  Certiorari  denied. 
Reported  below:  760  F.  2d  1383. 

No.  85-348.  VAL/DEL,  INC.  u  SUPERIOR  COURT  OF  ARIZONA, 
PIMA  COUNTY,  ET  AL.  (PASCUA  YAQUI  TRIBE,  REAL  PARTY  IN 
INTEREST).  Ct.  App.  Ariz.  Certiorari  denied.  Reported 
below:  145  Ariz.  558,  703  P.  2d  502. 

No.  85-354.  ORTHO  PHARMACEUTICAL  CORP.  v.  MACDONALD 
ET  AL.  Sup.  Jud.  Ct.  Mass.  Certiorari  denied.  Reported 
below:  394  Mass.  131,  475  N.  E.  2d  65. 

No.  85-357.  JOHNSON  v.  JOHNSON  ET  AL.  Ct.  App.  Mich. 
Certiorari  denied. 

No.  85-368.  SEIBOLD  v.  UNR-ROHN  Co.  C.  A.  7th  Cir. 
Certiorari  denied. 

No.  85-369.  TUCKER  u  HARTFORD  FEDERAL  SAVINGS  & 
LOAN  ASSN.  Sup.  Ct.  Conn.  Certiorari  denied.  Reported 
below:  196  Conn.  172,  491  A.  2d  1084. 

No.  85-402.  AWREY  u  PROGRESSIVE  CASUALTY  INSURANCE 
Co.  C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  728  F. 
2d  352. 

No.  85-404.  SHELTON  ET  ux.  v.  WASHINGTON  ET  AL.  Ct. 
App.  Wash.  Certiorari  denied. 

No.  85-412.  WRIGHT  v.  UNITED  STATES  ET  AL.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1078. 


ORDERS  921 

474  U.  S.  October  21,  1985 

No.  85-416.  SCAGLIONE  v.  COMMUNICATIONS  WORKERS  OF 
AMERICA,  LOCAL  1395,  ET  AL.  C.  A.  1st  Cir.  Certiorari  denied. 
Reported  below:  759  F.  2d  201. 

No.  85-448.  ATWELL  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  766  F.  2d  416. 

No.  85-486.  BOYKIN  v.  REAGAN  ADMINISTRATION  ET  AL. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  767  F.  2d  907. 

No.  85-496.  WOOLARD  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  1349. 

No.  85-505.  ZOELLER  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  922. 

No.  85-5074.  TAFOYA  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  757  F.  2d  1522. 

No.  85-5098.  MARRAPESE  v.  RHODE  ISLAND  ET  AL.  C.  A. 
1st  Cir.  Certiorari  denied.  Reported  below:  749  F.  2d  934. 

No.  85-5112.  RICKUS  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1077. 

No.  85-5195.  GREEN  v.  SCHWARZER,  U.  S.  DISTRICT  JUDGE. 
C.  A.  9th  Cir.  Certiorari  denied. 

No.  85-5309.  ROBINSON  u  DELAWARE.  Sup.  Ct.  Del.  Cer- 
tiorari denied.  Reported  below:  497  A.  2d  790. 

No.  85-5314.  GREEN  u  SOUTH  CAROLINA.  Sup.  Ct.  S.  C. 
Certiorari  denied. 

No.  85-5316.  WILSON  v.  UNITED  STATES  ET  AL.  C.  A.  3d 
Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  1078. 

No.  85-5317.  COLE  v.  FULCOMER,  SUPERINTENDENT,  STATE 
CORRECTIONAL  INSTITUTION  AT  HUNTINGDON.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  124. 

No.  85-5320.  DEACON  v.  ILLINOIS.  App.  Ct.  111.,  2d  Dist. 
Certiorari  denied.  Reported  below:  130  111.  App.  3d  280,  473 
N.  E.  2d  1354. 

No.  85-5321.  COLE  v.  BENSON  ET  AL.  C.  A.  8th  Cir.  Cer- 
tiorari denied.  Reported  below:  760  F.  2d  226. 


922  OCTOBER  TERM,  1985 

October  21,  1985  474  U.  S. 

No.    85-5326.      PICKARD   v.    ANGELONE,    WARDEN,    ET   AL. 

C.  A.  10th  Cir.     Certiorari  denied. 

No.  85-5327.  PITT  v.  NEW  YORK.  App.  Div.,  Sup.  Ct.  N.  Y., 
2d  Jud.  Dept.  Certiorari  denied.  Reported  below:  110  App. 
Div.  2d  723,  488  N.  Y.  S.  2d  38. 

No.  85-5328.  SHAW  v.  WOODARD,  SECRETARY,  NORTH  CARO- 
LINA DEPARTMENT  OF  CORRECTIONS,  ET  AL.  Ct.  App.  N.  C. 
Certiorari  denied.  Reported  below:  75  N.  C.  App.  363,  331  S.  E. 
2d  330. 

No.   85-5335.      MABIN  v.   HOWARD  UNIVERSITY.      Ct.   App. 

D.  C.     Certiorari  denied. 

No.  85-5338.  COLLINS  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  656. 

No.  85-5345.  FELLS  v.  SNYDER  ET  AL.  C.  A.  3d  Cir.  Cer- 
tiorari denied. 

No.  85-5352.  SANDERS  v.  JUNIOR  COLLEGE  DISTRICT  OF  MET- 
ROPOLITAN KANSAS  CITY,  MISSOURI.  C.  A.  D.  C.  Cir.  Certio- 
rari denied. 

No.  85-5358.  GORHAM  u  FRANZEN  ET  AL.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  786. 

No.  85-5385.  DAY  v.  BLACK,  JUDGE,  UNITED  STATES  DIS- 
TRICT COURT  FOR  THE  SOUTHERN  DISTRICT  OF  TEXAS,  ET  AL. 
C.  A.  5th  Cir.  Certiorari  denied. 

No.  85-5392.  CHAGRA  u  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  754  F.  2d  1186. 

No.  85-5409.  GOBELY  v.  MINNESOTA.  Sup.  Ct.  Minn.  Cer- 
tiorari denied.  Reported  below:  366  N.  W.  2d  600. 

No.  85-5413.  PETRILLO  v.  NEW  JERSEY.  Sup.  Ct.  N.  J. 
Certiorari  denied. 

No.  85-5419.  HAYES  v.  LOCKHART,  DIRECTOR,  ARKANSAS 
DEPARTMENT  OF  CORRECTION.  C.  A.  8th  Cir.  Certiorari  de- 
nied. Reported  below:  766  F.  2d  1247. 

No.  85-5440.  FRAZIER  ET  AL.  v.  UNITED  STATES.  C.  A.  4th 
Cir,  Certiorari  denied.  Reported  below:  767  F.  2d  914. 


ORDERS  923 

474  U.  S.  October  21,  1985 

No.  85-5453.  CORCORAN  v.  WYRICK,  WARDEN.  C.  A.  8th 
Cir.  Certiorari  denied.  Reported  below:  757  F.  2d  207. 

No.  85-5456.  BODINE  v.  DEPARTMENT  OF  TRANSPORTATION 
ET  AL.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below: 
776  F.  2d  1059. 

No.  85-5458.  HILL  v.  UNITED  STATES.  C.  A.  4th  Cir.  Cer- 
tiorari denied.  Reported  below:  766  F.  2d  856. 

No.  85-5460.  IRIS  v.  UNITED  STATES.  C.  A.  9th  Cir.  Cer- 
tiorari denied.  Reported  below:  770  F.  2d  171. 

No.  85-5462.  SPIVEY  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  1352. 

No.  85-5464.  PETERSON  u  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  64. 

No.  85-5470.  LATHAM  u  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  167. 

No.  85-5472.  ESDAILLE  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  769  F.  2d  104. 

No.  85-5482.  BARRETT  v.  UNITED  STATES.  C.  A.  1st  Cir. 
Certiorari  denied.  Reported  below:  766  F.  2d  609. 

No.  84-1584.  BONNER  ET  AL.  u  COMMISSIONER  OF  INTERNAL 
REVENUE;  and 

No.  84-1810.  GLADNEY  ET  AL.  u  COMMISSIONER  OF  INTER- 
NAL REVENUE.  C.  A.  5th  Cir.  Certiorari  denied.  Reported 
below:  745  F.  2d  955. 

JUSTICE  O'CONNOR,  with  whom  JUSTICE  BLACKMUN  and  JUS- 
TICE POWELL  join,  dissenting. 

Section  4945  of  the  Internal  Revenue  Code,  26  U.  S.  C.  §4945, 
imposes  a  substantial  excise  tax  on  noncharitable  expenditures  by 
a  private  foundation.  Transfers  remain  taxable  under  this  section 
only  as  long  as  the  organization  retains  its  foundation  status. 
Upon  the  termination  of  that  status,  tax  liability  is  assessed  pur- 
suant to  §  507(c).  Petitioners  are  trustees  and  residuary  legatees 
of  a  testamentary  trust  established  in  1905  and  later  organized  as 
a  private  foundation.  In  1971,  a  Louisiana  court  ordered  the  dis- 


924  OCTOBER  TERM,  1985 

October  21,  1985  474  U.  S. 

solution  of  the  trust  and  the  distribution  of  its  remaining  assets  to 
the  settlor's  heirs.  The  Internal  Revenue  Service  acknowledged 
that  the  trust's  §  507(c)  liability  was  zero.  Nonetheless,  viewing 
the  distributions  as  §4945  "taxable  expenditures"  by  a  still  extant 
foundation,  it  imposed  a  100%  excise  tax  on  the  transfer.  Peti- 
tioners contested  liability,  and  an  action  in  Tax  Court  ensued. 
Concluding  that  the  trust's  private  foundation  status  terminated 
upon  the  issuance  of  the  state  court  judgment,  the  court  found  for 
petitioners.  45  TCM  280,  11 82-707  P-H  Memo  TC  (1982).  A  di- 
vided panel  of  the  Court  of  Appeals  for  the  Fifth  Circuit  reversed, 
holding  that  notwithstanding  the  prior  dissolution  of  the  trust  and 
the  absence  of  any  §507(c)  liability  whatever,  the  distribution 
qualified  as  a  §4945  taxable  expenditure.  745  F.  2d  955  (1984). 
Because  I  seriously  question  whether  the  harsh  result  reached  by 
the  Court  of  Appeals  is  consistent  with  either  the  letter  or  intent 
of  the  relevant  provisions  of  the  Code,  I  would  grant  the  petitions 
for  certiorari. 

No.  84-1914.     JACKSON  v.  UNITED  STATES.      C.  A.  4th  Cir. 
Certiorari  denied.     Reported  below:  759  F.  2d  342. 

JUSTICE  WHITE,  dissenting. 

Title  18  U.  S.  C.  §  649(a)  makes  it  a  crime  for  one  having 
"money  of  the  United  States"  under  his  or  her  control  to  fail  to 
deposit  it  when  required  to  do  so.  Petitioner,  who  was  convicted 
under  this  statute,  argued  on  appeal  that  the  evidence  on  certain 
counts  was  insufficient  because  it  showed  only  her  failure  to  de- 
posit checks  payable  to  the  United  States.  The  United  States 
Court  of  Appeals  for  the  Fourth  Circuit  rejected  petitioner's 
argument  that  checks  are  not  "money  of  the  United  States"  for 
purposes  of  §649(a).  759  F.  2d  342  (1985).  This  holding  con- 
flicts with  the  Tenth  Circuit's  interpretation  of  the  statute.  See 
United  States  v.  Fernando,  745  F.  2d  1328  (1984)  (strictly  constru- 
ing "money  of  the  United  States"  to  include  only  currency  and  not 
negotiable  documents).  I  would  grant  certiorari  to  resolve  this 
conflict  between  two  Courts  of  Appeals. 

No.  84-1978.  SPICER  v.  UNITED  STATES.  Ct.  Mil.  App. 
Certiorari  denied.  JUSTICE  BRENNAN  would  grant  certiorari. 
Reported  below:  20  M.  J.  188. 


ORDERS  925 

474  U.  S.  October  21,  1985 

No.  84-2032.  GREEN  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  745  F.  2d  1205. 

JUSTICE  WHITE,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

This  case  presents  the  question  whether,  in  a  prosecution  for 
mail  fraud  under  18  U.  S.  C.  §  1341,  a  defendant  who  makes  out 
an  adequately  supported  defense  of  good  faith  is  entitled  to  a 
separate  jury  instruction  on  that  issue  when  the  court  gives  a 
sufficient  instruction  on  specific  intent.  Here,  the  United  States 
Court  of  Appeals  for  the  Ninth  Circuit  held  that  if  a  specific- 
intent  instruction  adequately  covers  the  issue  of  good  faith,  that 
is  sufficient  to  present  the  defense  to  the  jury,  and  the  defendant 
is  not  entitled  to  a  separate  good-faith  instruction.  745  F.  2d 
1205  (1984).  Three  other  Courts  of  Appeals  have  reached  the 
same  conclusion.  United  States  v.  Gambler,  213  U.  S.  App. 
D.  C.  278,  281,  662  F.  2d  834,  837  (1981);  United  States  v. 
Bronston,  658  F.  2d  920,  930  (CA2  1981),  cert,  denied,  456  U.  S. 
915  (1982);  United  States  v.  Sherer,  653  F.  2d  334,  337-338  (CAS), 
cert,  denied,  454  U.  S.  1034  (1981).  Both  the  Fifth  Circuit  in 
United  States  v.  Fowler,  735  F.  2d  823,  828  (1984),  and  the  Tenth 
Circuit  in  United  States  v.  Hopkins,  744  F.  2d  716,  718  (1984)  (en 
bane),  however,  have  reached  the  opposite  conclusion.  Both  of 
these  courts  have  held  that  when  the  defendant  presents  eviden- 
tiary support  for  his  good-faith  defense,  the  trial  court  must  give  a 
separate  instruction  to  the  jury  on  this  issue.  See  also  United 
States  v.  McGuire,  744  F.  2d  1197,  1201  (CA6  1984).  Given  this 
square  conflict  among  the  Courts  of  Appeals,  I  would  grant  certio- 
rari  in  this  case. 

No.  84-6780.  SMITH  v.  FRANCIS,  WARDEN.  Sup.  Ct.  Ga. 
Certiorari  denied.  Reported  below:  253  Ga.  782,  325  S.  E.  2d 
362. 

JUSTICE  BRENNAN,  dissenting. 

Adhering  to  my  view  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227  (1976),  I  would  grant  certiorari  and  vacate  the  death  sentence 
in  this  case. 


926  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

JUSTICE  MARSHALL,  dissenting. 

I  would  vacate  the  judgment  of  the  Georgia  Supreme  Court  in- 
sofar as  it  left  undisturbed  the  death  sentence  imposed  in  this 
case.  Gregg  v.  Georgia,  428  U.  S.  153,  231  (1976)  (MARSHALL,  J., 
dissenting).  The  petitioner  has  presented  an  important  question 
concerning  the  Eighth  Amendment's  ban  on  cruel  and  unusual 
punishment  as  applied  to  the  execution  of  a  mentally  retarded 
person. 

I 

The  petitioner  is  mentally  retarded,  with  an  IQ  of  65  and  mental 
abilities  roughly  equivalent  to  those  of  a  10-year-old  child.  He 
was  tried  for  the  murder  of  one  Dan  Turner,  a  friend  of  the  peti- 
tioner and  his  family.  There  were  no  eyewitnesses  to  the  crime. 
The  petitioner  had  gone  into  Turner's  grocery  store  to  buy  some 
cigarettes.  The  petitioner  testified  at  trial  that  he  grabbed 
Turner  when  the  latter  opened  the  cash  register.  Turner  reacted 
by  picking  up  a  hammer,  and  the  petitioner  then  stabbed  him  and 
hit  him  with  the  hammer  after  it  fell  from  the  victim's  hand.  The 
petitioner  took  money  from  the  cash  register  and  Turner's  wallet 
and  fled. 

The  petitioner  turned  himself  in  to  the  police  and  gave  a  lengthy 
statement  in  which  he  admitted  stabbing  Turner.  When  asked 
about  the  reasons  for  his  actions,  the  petitioner  stated  that  he  had 
wanted  to  get  money.  At  trial,  however,  the  petitioner  stated 
that  he  had  not  entered  the  store  intending  to  rob  Turner,  and  did 
not  know  why  he  had  grabbed  Turner  as  the  latter  was  getting 
the  petitioner's  cigarettes. 

A  psychiatrist  who  examined  the  petitioner  stated  that  the  peti- 
tioner showed  considerable  remorse  in  discussing  the  murder. 
The  petitioner  testified  at  trial  that  he  "didn't  mean  to  kill  Mr. 
Dan,"  but  had  gotten  "carried  away"  after  he  saw  the  victim 
wielding  the  hammer  in  what  the  petitioner  interpreted  as  a  threat- 
ening manner.  There  was  evidence  that  the  petitioner  was  under 
considerable  stress  in  the  days  preceding  the  murder.  The  peti- 
tioner's counsel  argued  that  the  petitioner  was  insane  or,  at  mini- 
mum, lacked  the  requisite  mental  intent  because  of  his  retardation. 
Nevertheless,  the  jury  found  the  petitioner  guilty  of  malice  murder 
and  armed  robbery  and  sentenced  him  to  death. 


ORDERS  927 

925  MARSHALL,  J.,  dissenting 

II 

In  Furman  v.  Georgia,  408  U.  S.  238,  363-369  (1972)  (MAR- 
SHALL, J.,  concurring),  I  concluded  that  the  death  penalty  was 
"morally  reprehensible"  to  contemporary  society  based,  in  part,  on 
its  discriminatory  imposition.  Statistically,  it  was  "evident  that 
the  burden  of  capital  punishment  falls  upon  the  poor,  the  ignorant, 
and  the  underprivileged  members  of  society/'  Id.,  at  365-366 
(footnote  omitted).  The  petitioner  suffers  the  unfortunate  dis- 
tinction of  meeting  each  of  these  criteria.  His  case,  like  so  many 
others  coming  before  this  Court,  convinces  me  of  the  continuing 
validity  of  my  observations  in  Furman. 

I  need  not  recount  here  our  country's  shameful  history  with  re- 
spect to  the  mentally  retarded.  See  Cleburne  v.  Cleburne  Living 
Center,  473  U.  S.  432,  455  (1985)  (MARSHALL,  J.,  concurring  in 
judgment  in  part  and  dissenting  in  part).  I  believe,  however, 
that  the  courts  bear  a  special  responsibility  when  faced  with  the 
possible  execution  of  a  member  of  a  group  that  has  been  subject 
for  so  long  to  irrational  social  stigma.1  This  is  particularly  true  in 
the  instant  case,  because  the  petitioner's  handicap  necessarily  di- 
minishes his  culpability.  A  mentally  retarded  person  who  is  sus- 
ceptible to  confusion  and  impulsive  reaction  when  put  in  a  stress- 
ful situation2  is  the  very  opposite  of  the  cold-blooded,  calculating 
killers  that  populate  this  Court's  opinions  validating  the  death 
penalty.  See,  e.  g.,  Gregg  v.  Georgia,  supra,  at  185-186  (opinion 
of  Stewart,  POWELL,  and  STEVENS,  JJ.). 


1  It  cannot  be  denied  that  American  communities  have  traditionally  shown  a 
strong  desire  to  be  rid  of  the  mentally  retarded  in  any  way  possible.      See 
Cleburne,  473  U.  S.,  at  462  (retarded  subjected  during  end  of  19th  and  be- 
ginning of  20th  centuries  to  a  "regime  of  state-mandated  segregation  and 
degradation  .  .  .  that  in  its  virulence  and  bigotry  rivaled,  and  indeed  paral- 
leled, the  worst  excesses  of  Jim  Crow").      See  also  Buck  v.  Bell,  274  U.  S. 
200,  207  (1927)  (upholding  compulsory  sterilization  as  alternative  to  '^waiting 
to  execute  degenerate  offspring  for  crime");  Halderman  v.  Pennhurst  State 
School  &  Hospital,  446  F.  Supp.  1295,  1299-1300  (ED  Pa.  1977)  (noting  his- 
tory of  institutionalization  of  mentally  retarded),  aff'd  in  part  and  rev'd  in 
part,  612  F.  2d  84  (CAS  1979),  rev'd,  451  U.  S.  1  (1981). 

2  A  psychiatrist  who  examined  the  petitioner  testified  that  he  exhibits  these 
characteristics.     See  Affidavit  of  Dr.  Fisher,  App.  H  to  Pet.  for  Cert.     The 
characteristics  are  typically  found  in  the  mentally  retarded.     See  M.  Stern- 
licht  &  M.  Deutsch,  Personality  Development  and  Social  Behavior  in  the  Men- 
tally Retarded  81-82  (1972). 


928  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

This  Court  has  demanded  that  a  capital  sentencing  scheme  pro- 
vide, at  a  minimum,  a  "meaningful  basis  for  distinguishing  the  few 
cases  in  which  it  is  imposed  from  the  many  cases  in  which  it  is 
not,"  Furman,  supra,  at  313  (WHITE,  J.,  concurring);  see  Godfrey 
v,  Georgia,  446  U.  S.  420,  427-428  (1980)  (plurality  opinion).  In 
this  case,  the  mechanical  application  of  the  Georgia  sentencing 
scheme  undermined  one  purpose  that  the  Court  has  determined 
to  underlie  such  procedures — to  reserve  the  penalty  of  death  for 
the  most  culpable  killers,  thus  satisfying  society's  "'instinct  for 
retribution/"  Gregg  v.  Georgia,  supra,  at  183  (quoting  Furman, 
supra,  at  308  (Stewart,  J.,  concurring)).8  The  execution  of  a 


8  Courts  have  often  shown  reluctance  to  impute  to  a  retarded  defendant  the 
necessary  culpability  to  uphold  a  sentence  of  death.     See,  e.  g.,  State  v.  Hall, 
176  Neb.  295,  309-310,  125  N.  W.  2d  918,  926-927  (1964)  (exercising  its  statu- 
tory prerogative  to  "'reduce  the  sentence  rendered  .  .  .  when  in  its  opinion 
the  sentence  is  excessive,' "  court  concluded  that  where  the  defendant,  had  an 
IQ  of  64,  "reduction  of  the  death  penalty  to  one  of  life  imprisonment  is  war- 
ranted"); State  v.  Behler,  65  Idaho  464,  474-475,  146  P.  2d  338,  343  (1944) 
("Undoubtedly,  one  possessing  a  normal  mind  should  be  held  to  a  full,  strict 
accountability  for  his  conduct,  but,  should  a  person  with  a  pronounced  subnor- 
mal mind  be  held  to  the  same  high  degree  of  accountability?");  Commonwealth 
v.  Green,  396  Pa.  137,  151  A.  2d  241  (1959)  (vacating  death  sentence  where 
sentencer  had  failed  to   consider  mitigating  factors,    including  defendant's 
youth  and  subnormal  intelligence).     See  also  Thompson  v.  State,  456  So.  2d 
444,  448  (Fla.  1984)  (trial  judge  erred  in  overriding  jury  recommendation  of 
Ufe  imprisonment  on  the  grounds  that  no  mitigating  circumstances  existed, 
where  "appellant's  mental  retardation  could  have  been  considered  by  the  jury 
as  a  basis  for  recommending  life  imprisonment").      Legislatures  have  also 
acknowledged  that  the  retarded  are  less  deserving  of  the  death  penalty  than 
other  offenders.     Many  state  statutes  make  mental  disease  or  defect  at  the 
time  of  the  criminal  act  a  mitigating  factor.     See  Ark.  Stat.  Ann.  §  41-1304(3) 
(1977);  Gal.  Penal  Code  Ann.  §  190.3(h)  (West  Supp.  1985);  Conn.  Gen.  Stat. 
§  53a-46a(f )(2)   (1985);  Ind.   Code   §  35-50-2-9(c)(6)   (1985);   Ky.    Rev.    Stat. 
§ 532.025(2)(b)(7)  (1985);   La.   Code  Crim.   Proc.   Ann.,   Art.    905. 5(e)   (West 
1984);  Md.   Ann.   Code,   Art.  27,   §413(g)(4)  (Supp.    1985);   Neb.    Rev.    Stat. 
§  29-2523(2)(g)  (1979);  N.  J.  Stat.  Ann.  §  2C:ll-3(c)(5)(d)  (West  1982);  Ohio 
Rev.   Code  Ann.    §2929.04(B)(3)   (1982);   Tenn.    Code   Ann.    §  39-2-203(j)(8) 
(1982);  Wash.  Rev.  Code  §  10.95.070(6)  (1983).      See  also  Ala.   Code  §  13A- 
5-51(6)  (1982);  Ariz.  Rev.  Stat.  Ann.  §  13-703(G)(1)  (Supp.   1984-1985);  Fla. 
Stat.  §921.141(6)(f)  (1983);  Miss.  Code  Ann.  §  99-19-101(6)(f )  (Supp.  1985); 
Mo.  Rev.  Stat.  §  565.032(3)(6)  (Supp.  1984);  Mont.  Code  Ann.  §  46-18-304(4) 
(1983);   N.    H.    Rev.    Stat.   Ann.    §  630:5(1 1)(b)(4)   (1983);   N.    M.    Stat.    Ann. 
§31-20A-6(C)  (1981);  N.  C.  Gen.  Stat.  §  15A-2000(f  )(6)  (1983);  42  Pa.  Cons. 
Stat.    §9711(e)(3)   (1982);   S.    C.    Code   §  16-3-20(C)(b)(6)   (1985);    Va.    Code 
§  19.2-264. 4(B)(iv)  (1983);  Wyo.  Stat.  §  6-2-102(j)(vi)  (1983). 


ORDERS  929 

474  U.  S.  October  21,  1985 

mentally  retarded  person  serves  this  retributive  function  ex- 
tremely poorly,  because  the  level  of  "personal  responsibility  and 
moral  guilt,"  Enmund  v.  Florida,  458  U.  S.  782,  801  (1982),  is  so 
much  lower  than  in  the  case  of  a  fully  competent  person  who  com- 
mits the  same  crime.4  As  applied  to  the  petitioner,  the  death 
penalty  is  "nothing  more  than  the  purposeless  and  needless  impo- 
sition of  pain  and  suffering,"  Coker  v.  Georgia,  433  U.  S.  584,  592 
(1977)  (plurality  opinion),  and  therefore  unconstitutional. 

No.  84-6792.  KERR  v.  FINKBEINER,  WARDEN,  ET  AX,.  C.  A. 
4th  Cir.  Certiorari  denied.  Reported  below:  757  F.  2d  604. 

JUSTICE  WHITE,  with  whom  JUSTICE  MARSHALL  joins, 
dissenting. 

In  April  1979,  fugitive  warrants  were  issued  against  petitioner 
Kerr  by  the  Circuit  Court  of  Spotsylvania  County,  Virginia.  At 
that  time,  Kerr  was  incarcerated  in  North  Carolina.  On  May  21, 
1979,  Kerr  filed  a  "Motion  and  Request  for  a  Speedy  Trial  Upon 
Pending  Charge  or  for  Dismissal  of  Detainer"  in  the  Spotsylvania 
County  Circuit  Court.  Receipt  of  the  motion  was  acknowledged 
by  that  court  on  May  23,  1979.  On  September  25,  1979,  Kerr  was 
transported  to  Virginia  from  North  Carolina.  A  preliminary 
hearing  was  set  for  November  7,  1979,  but  the  hearing  was  re- 
scheduled for  November  28,  1979,  at  the  request  of  Kerr's  attor- 
ney. On  the  latter  date,  Kerr  waived  his  right  to  a  preliminary 
hearing  and  consented  to  the  State's  proceeding  by  grand  jury  in- 
dictment. The  Spotsylvania  County  grand  jury  indicted  Kerr  on 
January  21,  1980,  and  his  trial  was  set  for  May  22,  1980. 

On  May  19,  1980,  Kerr  moved  to  dismiss  the  indictment.  He 
based  this  motion  on  Article  III(a)  of  the  Interstate  Agreement  on 
Detainers  (IAD),  which  provides  that  a  prisoner  against  whom  a 
detainer  has  been  lodged  "shall  be  brought  to  trial  within  one 
hundred  and  eighty  days  after  he  shall  have  caused  to  be  delivered 
to  the  prosecuting  officer  and  the  appropriate  court  .  .  .  written 
notice  of  ...  his  request  for  a  final  disposition  to  be  made  of  the 
indictment,  information,  or  complaint  .  .  .  ,"  as  set  forth  in  18 
U.  S.  C.  App.  §2.  Article  V(c)  of  the  IAD  further  provides  that 


4  Recognizing  the  greatly  lower  culpability  of  the  mentally  defective  is  cer- 
tainly not  novel;  Blackstone  notes  that  "by  the  law  .  .  .  ever  since  the  time  of 
Edward  the  Third,  the  capacity  of  doing  ill,  or  contracting  guilt,  is  not  so 
much  measured  by  years  and  days,  as  by  the  strength  of  the  delinquent's 
understanding  and  judgment."  4  W.  Blackstone,  Commentaries  *23. 


30  OCTOBER  TERM,  1985 

WHITE,  J.,  dissenting  474  U.  S. 

"in  the  event  that  an  action  on  the  indictment,  information,  or 
complaint  on  the  basis  of  which  the  detainer  has  been  lodged 
is  not  brought  to  trial  within  the  period  provided  in  article 
III  .  .  .  hereof,  the  appropriate  court  of  the  jurisdiction  where 
the  indictment,  information,  or  complaint  has  been  pending  shall 
enter  an  order  dismissing  the  same  with  prejudice  .  .  .  ." 

Cerr's  motion  was  denied,  and  he  was  tried  and  found  guilty  as 
harged.  His  petition  to  the  Supreme  Court  of  Virginia  for  a  writ 
f  error  was  denied. 

Kerr  then  filed  a  petition  for  a  writ  of  habeas  corpus  in  the 
Jnited  States  District  Court  for  the  Eastern  District  of  Virginia, 
le  asserted  in  that  petition  that  he  was  entitled  to  relief  because  he 
tad  not  been  tried  within  the  time  limits  prescribed  by  Article 
II(a)  of  the  IAD.  The  District  Court  dismissed  the  complaint  on 
he  ground  that  it  did  not  state  a  claim  for  relief  under  28  U.  S.  C. 
•2254. 

The  United  States  Court  of  Appeals  for  the  Fourth  Circuit  af- 
irmed  the  dismissal  of  Kerr's  habeas  corpus  petition.  757  F.  2d 
104  (1985).  The  Fourth  Circuit  cited  Davis  v.  United  States,  417 
J.  S.  333  (1974),  as  setting  forth  the  inquiry  for  determining 
vhether  habeas  relief  is  warranted:  "  ^whether  the  claimed  error  of 
aw  was  "a  fundamental  defect  which  inherently  results  in  a  com- 
pete miscarriage  of  justice,"  and  whether  "[i]t  .  .  .  present[s] 
sxceptional  circumstances  where  the  need  for  the  remedy  afforded 
>y  the  writ  of  habeas  corpus  is  apparent."'"  757  F.  2d,  at  606 
quoting  Davis,  supra,  at  346  (in  turn  quoting  Hill  v.  United 
States,  368  U.  S.  424,  428  (1962))).  The  court  then  noted  that  in  a 
similar  case  concerning  Article  IV(e)  of  the  IAD  (under  which  a 
>risoner  must  be  tried  before  being  returned  to  his  original  place  of 
ncarceration  and  to  which  the  same  Article  V  sanction  applies),  a 
previous  panel  of  the  Circuit  had  held  that  the  IAD  violation  did  not 
present  a  cognizable  habeas  claim  under  the  Davis  test.  See  Bush 
7.  Muncy,  659  F.  2d  402  (CA4  1981).  In  that  case,  the  court  had 
concluded  that  "only  those  statutory  rights  of  a  fundamental  nature 
closely  related  to  constitutionally  secured  rights  to  fair  prosecu- 
ion  and  adjudication  should  be  subject  to  vindication  by  collateral 
review  of  criminal  convictions."  Id.,  at  409. 

The  Court  of  Appeals  also  noted  in  this  case  that  the  Circuits 
Eire  divided  on  the  question  whether  Articles  III  and  IV  IAD  viola- 


ORDERS  931 

474  U.  S.  October  21,  1985 

tions  present  cognizable  habeas  claims  under  Davis.  The  Third 
and  Ninth  Circuits  have  held  that  they  do.  The  Third  Circuit,  for 
example,  has  held  that  such  a  violation  constitutes  a  "fundamental 
defect"  because,  although  it  does  not  go  to  the  question  of  guilt  or 
innocence,  Congress  made  such  a  violation  an  absolute  defense  to 
prosecution;  this  strong  congressional  policy  comprises  the  type  of 
"exceptional  circumstance"  that  makes  habeas  relief  appropriate. 
See  United  States  v.  Williams,  615  F.  2d  585,  590  (1980).  See 
also  Cody  v.  Morris,  623  F.  2d  101  (CA9  1980). 

All  the  other  Circuits  that  have  addressed  the  issue  have  deter- 
mined that  habeas  relief  is  not  appropriate  in  this  context,  al- 
though it  may  be  if  prejudice  or  special  circumstances  are  shown. 
See,  e.  g.,  Greathouse  v.  United  States,  655  F.  2d  1032  (CA10 
1981),  cert,  denied,  455  U.  S.  926  (1982);  Mars  v.  United  States, 
615  F.  2d  704  (CA6),  cert,  denied,  449  U.  S.  849  (1980);  Fasano  v. 
Hall,  615  F.  2d  555  (CA1),  cert,  denied,  449  U.  S.  867  (1980);  Huff 
v.  United  States,  599  F.  2d  860  (CAS),  cert,  denied,  444  U.  S.  952 
(1979);  Edwards  v.  United  States,  564  F.  2d  652  (CA2  1977).  The 
Court  of  Appeals  below  followed  the  latter  group  of  cases  and  held 
that  since  Kerr  had  introduced  no  evidence  of  prejudice,  his  peti- 
tion had  properly  been  dismissed. 

The  conflict  among  the  Circuits  on  this  issue  is  clear.  In  some 
Circuits  an  IAD  violation  that  constitutes  an  absolute  defense 
under  the  Agreement  can,  without  more,  serve  as  the  basis  for 
habeas  relief.  In  others,  prejudice  must  be  shown.  Further- 
more, it  is  obvious  that  the  issue  is  a  recurring  one.  I  would 
grant  the  petition  to  settle  this  conflict. 

No.  85-59.  NORTH  SIDE  LUMBER  Co.  ET  AL.  v.  BLOCK,  SEC- 
RETARY OF  AGRICULTURE,  ET  AL.  C.  A.  9th  Cir.  Certiorari 
denied.  Reported  below:  753  F.  2d  1482. 

JUSTICE  WHITE,  dissenting. 

This  is  a  suit  brought  in  Federal  District  Court  by  various  lum- 
ber companies  who  had  contracted  to  purchase  timber  from  the 
United  States.  The  plaintiffs— petitioners  here —seek  both  a 
declaratory  judgment  to  the  effect  that  the  contracts  are  void  as 
a  matter  of  federal  common  law  and  an  injunction  restraining  the 
United  States  from  enforcing  them.  The  District  Court  granted 
preliminary  injunctive  relief,  but  the  Court  of  Appeals  for  the 
Ninth  Circuit  reversed,  holding  that  the  District  Court  lacked 
jurisdiction  over  petitioners'  underlying  claim  for  declaratory 


932  OCTOBER  TERM,  1985 

WHITE,  J.,  dissenting  474  U.  S. 

relief.  Although  conceding  that  such  a  suit  arose  under  federal 
law  for  purposes  of  28  U.  S.  C.  §  1331,  the  court  concluded  that 
the  Tucker  Act,  28  U.  S.  C.  §§  1346  and  1491,  impliedly  barred 
the  relief  sought.  The  court  reasoned  that  the  Tucker  Act,  under 
which  declaratory  relief  is  not  available,  see  Richardson  v.  M or- 
ris, 409  U.  S.  464  (1973),  defined  the  extent  of  the  United  States' 
waiver  of  sovereign  immunity  against  the  types  of  claims  for 
which  the  Tucker  Act  authorizes  monetary  relief.1  Because,  in 
the  view  of  the  Court  of  Appeals,  the  suit  to  void  the  contracts 
was  a  "claim  against  the  United  States  .  .  .  founded  .  .  .  upon  [an] 
express  or  implied  contract,"  28  U.  S.  C.  §  1346(a)(2),  the  relief 
available  was  governed  by  the  Tucker  Act,  and  declaratory  relief 
was  therefore  unavailable. 

My  doubts  about  the  correctness  of  this  ruling  and  its  consis- 
tency with  the  decision  of  another  Court  of  Appeals  lead  me  to  be- 
lieve that  review  of  the  Ninth  Circuit's  conclusion  in  this  Court  is 
warranted.  Even  accepting  the  Court  of  Appeals'  view  that  the 
Tucker  Act  impliedly  bars  declaratory  and  injunctive  relief  in  all 
cases  in  which  assertion  of  a  claim  of  damages  would  require  invo- 
cation of  the  Tucker  Act,2  the  Court  of  Appeals'  conclusion  that 


1  The  court  concluded  that  the  United  States'  general  waiver  of  sovereign 
immunity  against  suits  seeking  relief  other  than  money  damages,  5  U.  S.  C. 
§  702,  was  inapplicable  by  virtue  of  its  proviso,  which  states  that  "[n]othing 
herein  .  .  .  confers  authority  to  grant  relief  if  any  other  statute  that  grants 
consent  to  suit  expressly  or  impliedly  forbids  the  relief  which  is  sought. "     The 
court  concluded  that  the  Tucker  Act  impliedly  denied  consent  to  suit  for  non- 
monetary  relief  with  respect  to  all  cases  involving  claims  of  the  type  for  which 
the  Act  authorizes  damages  actions. 

2  The  Tucker  Act  also  applies  to  claims  for  damages  "founded  either  upon 
the  Constitution,  or  any  Act  of  Congress,  or  any  regulation  of  an  executive 
department."     28  U.  S.  C.  §§  1346(a)(2)  and  1491(a).      Thus,  the  Ninth  Cir- 
cuit's reasoning,  if  taken  literally,  would  also  bar  a  suit  for  injunctive  or  de- 
claratory relief  against  officers  of  the  United  States  Government  founded 
upon  the  Constitution,  a  federal  statute,  or  a  federal  regulation,  even  if  the 
claim  for  declaratory  or  injunctive  relief  was  not  accompanied  by  a  claim  for 
damages.     Title  5  U.  S.  C.  §  702,  the  provision  of  the  Administrative  Proce- 
dure Act  waiving  the  United  States'  sovereign  immunity  against  claims  other 
than  claims  for  money  damages,  would  thus  be  rendered  a  dead  letter.      As 
the  Second  Circuit  has  observed,  "[a]  literal  reading  of  the  'founded  either 
upon'  language  of  §  1491(a)  would  mean  that  all  claims  of  wrongful  action  by 
federal  officials  involving  more  than  $10,000  would  have  to  be  brought  in  the 
Claims  Court— a  result  clearly  in  conflict  with  historic  practice  and  with  the 


ORDERS  933 

931  WHITE,  J.,  dissenting 

petitioners'  suit  was  a  "claim  against  the  United  States  .  .  . 
founded  .  .  .  upon  [a]  ...  contract"  is  highly  questionable.  In 
fact,  the  claim  is  precisely  the  opposite  of  a  claim  founded  upon  a 
contract:  it  is  a  claim  that  no  contract  exists.  At  least  one  United 
States  Court  of  Appeals  has  ruled  the  suits  seeking  declaratory 
judgments  to  the  effect  that  valid  contracts  exist  are  not  claims 
founded  upon  a  contract  for  purposes  of  the  Tucker  Act.  See 
B.  K.  Instrument,  Inc.  v.  United  States,  715  F.  2d  713,  726-728 
(CA2  1983).  If  B.  K.  Instrument  was  correctly  decided,  it  would 
follow  a  fortiori  that  a  federal  common-law  claim  that  a  contract 
does  not  exist  is  not  "founded  upon  a  contract." 

The  Ninth  Circuit's  conclusion  that  a  district  court  lacks  juris- 
diction to  issue  a  declaratory  judgment  that  a  contract  between  a 
private  party  and  the  United  States  is  void  is  problematic  from 
another  standpoint  as  well.  Had  petitioners  breached  their  con- 
tracts rather  than  first  seeking  a  declaratory  judgment,  the  Dis- 
trict Court  would  have  had  jurisdiction  under  28  U.  S.  C.  §  1345 
over  an  action  for  breach  of  contract  brought  by  the  United  States 
as  plaintiff.  In  such  an  action,  petitioners  could  have  raised  as  a 
defense  their  claim  that  the  contracts  were  void  as  a  matter  of  fed- 
eral common  law;  and  surely  no  one  would  argue  that,  were  the 
defense  valid,  the  District  Court  would  lack  jurisdiction  to  declare 
the  contracts  void.  Why,  then,  should  similar  relief  be  barred  in 
a  claim  brought  in  anticipation  of  the  breach?  In  both  cases,  the 
claim  is  in  essence  a  defense  to  the  Government's  contractually 
based  claim;  and  if  petitioners'  declaratory  judgment  action  meets 
ordinary  standards  of  ripeness  and  arises  under  federal  law  for 
purposes  of  28  U.  S.  C.  §  1331,  I  see  no  reason  to  hold  that  the  re- 
lief that  would  be  available  to  petitioners  as  defendants  should  be 
denied  them  as  plaintiffs.  In  such  instances,  "[i]t  is  the  nature 
of  the  controversy,  not  the  method  of  its  presentation  or  the  par- 
ticular party  who  presents  it,  that  is  determinative."  Aetna  Life 
Insurance  Co.  v.  Haworth,  300  U.  S.  227,  244  (1937).  Cf.  Shelly 
Oil  Co.  v.  Phillips  Petroleum  Co.,  339  U.  S.  667  (1950).8  The 


plain  intent  of  Congress  .  .  .  ."  B.  K.  Instrument,  Inc.  v.  United  States,  715 
F.  2d  713,  727  (1983). 

8  In  Shelly  Oil,  the  Court  observed: 

"Prior  to  [the  Declaratory  Judgment]  Act,  a  federal  court  would  entertain  a 
suit  on  a  contract  only  if  the  plaintiff  asked  for  an  immediately  enforceable 
remedy  like  money  damages  or  an  injunction,  but  such  relief  could  only  be 
given  if  the  requisites  of  jurisdiction,  in  the  sense  of  a  federal  right  or  diver- 


934  OCTOBEK  TERM,  1985 

October  21,  1985  474  U.  S. 

contrary  rule,  as  announced  by  the  Ninth  Circuit  in  this  case, 
leaves  a  person  who  has  contracted  with  the  Government  but  who 
believes  the  contract  to  be  void  no  choice  but  to  breach  the  con- 
tract and  assert  his  claim  as  a  defense,  thereby  risking  liability 
for  damages.  I  had  thought  this  was  precisely  the  situation  the 
Declaratory  Judgment  Act  was  designed  to  remedy.4 

Concededly,  this  case  does  not  at  first  glance  appear  to  be  one 
of  great  moment,  and  I  certainly  do  not  mean  to  express  any  view 
of  the  merits  of  petitioners'  underlying  substantive  claims.  None- 
theless, the  Ninth  Circuit's  expansive  reading  of  the  Tucker  Act 
as  precluding  a  declaratory  judgment  as  to  the  validity  of  a  con- 
tract with  the  United  States  appears  to  be  in  tension  with  the  law 
of  the  Second  Circuit  as  well  as  with  ordinary  principles  governing 
declaratory  actions.  I  would  grant  certiorari  to  consider  and 
resolve  the  jurisdictional  issues  this  case  presents. 

No.  85-151.  MCCOTTER,  DIRECTOR,  TEXAS  DEPARTMENT  OF 
CORRECTIONS  v.  MUNIZ.  C.  A.  5th  Cir.  Motion  of  respondent 


sity,  provided  foundation  for  resort  to  the  federal  courts.  The  Declaratory 
Judgment  Act  allowed  relief  to  be  given  by  way  of  recognizing  the  plaintiff's 
right  even  though  no  immediate  enforcement  of  it  was  asked."  339  U.  S.,  at 
671-672. 

Of  course,  the  specific  holding  in  Shelly  was  that  a  declaratory  judgment  as 
to  the  validity  of  a  contract  was  unavailable  where  the  only  basis  for  federal 
subject-matter  jurisdiction  was  a  federal-law  defense  to  a  state-law  contract 
claim.  This  problem  is  not  present  here,  as  federal  jurisdiction  is  not  predi- 
cated solely  on  petitioners'  asserted  federal-law  defense  to  the  contract  action. 
First,  the  "coercive  action"  that  would  be  available  for  resolution  of  the  issues 
presented— that  is,  the  Government's  claim  for  breach  of  contract —would  be 
within  the  District  Court's  jurisdiction  by  virtue  of  28  U.  S.  C.  §  1345.  Sec- 
ond, the  coercive  action  for  breach  of  contract  in  this  case  would  also  arise 
under  federal  law  for  purposes  of  28  U.  S.  C.  §  1331,  for  "[t]he  validity  and 
construction  of  contracts  through  which  the  United  States  is  exercising  its 
constitutional  functions,  their  consequences  on  the  rights  and  obligations  of 
the  parties,  the  titles  or  liens  which  they  create  or  permit,  all  present  ques- 
tions of  federal  law  not  controlled  by  the  law  of  any  State."  United  States  v. 
County  of  Allegheny,  322  U.  S.  174,  183  (1944).  See  also  United  States  v. 
Seckinger,  397  U.  S.  203,  209-210  (1970);  Clearfteld  Trust  Co.  v.  United 
States,  318  U.  S.  363  (1943). 

4 1  do  not  mean  to  suggest  that  the  Declaratory  Judgment  Act,  28  U.  S.  C. 
§2201,  itself  constitutes  consent  to  suit  by  the  United  States.  I  refer  to  the 
policies  of  the  Act  only  insofar  as  they  bear  on  the  wisdom  of  construing  the 
Tucker  Act  to  render  inoperative  in  cases  of  this  type  the  waiver  of  sovereign 
immunity  found  at  5  U.  S.  C.  §  702. 


ORDERS  935 

474  U.  S.  October  21,  22,  November  4,  1985 

for  leave  to  proceed  in  forma  pauperis  granted.     Certiorari  de- 
nied.     Reported  below:  760  F.  2d  588. 

No.  85-421.  PRUDENTIAL-BACHE  SECURITIES  INC.  v.  ANGE- 
LASTRO.  C.  A.  3d  Cir.  Certiorari  denied.  JUSTICE  STEVENS 
took  no  part  in  the  consideration  or  decision  of  this  petition  Re- 
ported below:  764  F.  2d  939. 

No.  85-5164.     COLLINS  ET  AL.  v.  ILLINOIS.     Sup.  Ct.  111.; 

No.  85-5180.     MADEJ  v.  ILLINOIS.     Sup.  Ct.  111.; 

No.  85-5291.      COOKS  v.  OKLAHOMA.     Ct.  Crim.  App.  Okla.; 

No.  85-5308.  THOMAS  v.  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS,  ET  AL.  C.  A.  5th  Cir.; 

No.  85-5310.     BAXTER  v.  GEORGIA.     Sup.  Ct.  Ga.;  and 

No.  85-5477.  HARRELL  v.  ALABAMA.  Ct.  Crim.  App.  Ala. 
Certiorari  denied.  Reported  below:  No.  85-5164,  106  111.  2d  237, 
478  N.  E.  2d  267;  No.  85-5180,  106  111.  2d  201,  478  N.  E.  2d  392; 
No.  85-5291,  699  P.  2d  653;  No.  85-5308,  767  F.  2d  916;  No.  85- 
5310,  254  Ga.  538,  331  S.  E.  2d  561;  No.  85-5477,  470  So.  2d  1303. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentences  in  these  cases. 

Rehearing  Denied 

No.  84-1597.  MANN  v.  SPIEGEL,  471  U.  S.  1136.  Petition  for 
rehearing  denied. 

OCTOBER  22,  1985 

Dismissal  Under  Rule  53 

No.  85-5447.  TOWLES  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  dismissed  under  this  Court's  Rule  53.  Reported  below: 
496  A.  2d  560. 

NOVEMBER  4,  1985 

Appeals  Dismissed 

No  85-244  ADVENTURERS  WHITESTONE  CORP.  v.  CITY  OF 
NEW  YORK.  Appeal  from  Ct.  App.  N.  Y.  dismissed  for  want  of 


936  OCTOBER  TERM,  1985 

November  4,  1985  474  U.  S. 

substantial  federal  question.      Reported  below:  65  N.  Y.  2d  83, 
479  N.  E.  2d  241. 

No.  85-422.  COLONIAL  PIPELINE  Co.  v.  ALABAMA.  Appeal 
from  Ct.  Civ.  App.  Ala.  dismissed  for  want  of  substantial  federal 
question.  Reported  below:  471  So.  2d  408. 

No.  85-5387.  NELSON  v.  PLEASANT  GROVE  CITY  CORP.  Ap- 
peal from  Sup.  Ct.  Utah  dismissed  for  want  of  substantial  federal 
question. 

No.  85-367.  HUSKEY  v.  TENNESSEE.  Appeal  from  Sup.  Ct. 
Term,  dismissed  for  want  of  jurisdiction.  Reported  below:  688 
S.  W.  2d  417. 

No.  85-380.  CAMDEN  FIRE  INSURANCE  ASSN.  v.  JUSTICE. 
Appeal  from  Sup.  Ct.  App.  W.  Va.  Motion  of  appellee  for  award 
of  costs  and  damages  for  delay  denied.  Appeal  dismissed  for 
want  of  jurisdiction.  Treating  the  papers  whereon  the  appeal 
was  taken  as  a  petition  for  writ  of  certiorari,  certiorari  denied. 
Reported  below: W.  Va.  ,  332  S.  E.  2d  127. 

No.  85-415.  PERRUZZA  v.  COUNTY  OF  Los  ANGELES  ET  AL. 
Appeal  from  C.  A.  9th  Cir.  dismissed  for  want  of  jurisdiction. 
Treating  the  papers  whereon  the  appeal  was  taken  as  a  petition 
for  writ  of  certiorari,  certiorari  denied.  Reported  below:  765  F. 
2d  149. 

No.    85-534.       WlLMSHURST  ET   AL.    V,    NEW   MOTOR    VEHICLE 

BOARD  ET  AL.  Appeal  from  Ct.  App.  Cal.,  3d  App.  Dist.,  dis- 
missed for  want  of  jurisdiction.  Treating  the  papers  whereon  the 
appeal  was  taken  as  a  petition  for  writ  of  certiorari,  certiorari 
denied. 

Certiorari  Granted— Reversed  and  Remanded.     (See  No.  85-214, 
ante,  p.  15.) 

Certiorari  Granted— Vacated  and  Remanded.     (See  No.  85-5260, 
ante,  p.  25.) 

Certiorari    Granted— Reversed.       (See    also    Nos.    84-1634    and 
85-170,  ante,  p.  3.) 

No.  85-295.  COUNTY  OF  Los  ANGELES  ET  AL.  v.  KLING. 
C.  A.  9th  Cir.  Certiorari  granted  and  judgment  reversed.  An- 
derson v.  Bessemer  City,  470  U.  S.  564  (1985).  Reported  below: 
769  F.  2d  532. 


ORDERS  937 

936  STEVENS,  J.,  dissenting 

JUSTICE  MARSHALL  dissents  from  this  summary  disposition, 
which  has  been  ordered  without  affording  the  parties  prior  notice 
or  an  opportunity  to  file  briefs  on  the  merits.  See  Maggio  v. 
Fulford,  462  U.  S.  Ill,  120-121  (1983)  (MARSHALL,  J.,  dissent- 
ing); Wyrick  v.  Fields,  459  U.  S.  42,  51-52  (1982)  (MAESHALL,  J., 
dissenting). 

JUSTICE  STEVENS,  dissenting. 

Respondent  is  afflicted  with  Crohn's  disease.  Although  origi- 
nally accepted,  her  application  for  admission  to  the  Los  Angeles 
County  School  of  Nursing  was  ultimately  denied,  at  least  in  part, 
because  of  the  school  physician's  opinion  that  the  school  program 
was  "too  stressful"  for  her.  Finding  of  Fact  No.  12,  App.  to  Pet. 
for  Cert.  D-40.  Nevertheless,  the  District  Court  concluded  that 
respondent  had  "failed  to  show  that  she  was  denied  admission  to 
the  School  solely  by  reason  of  her  affliction  or  because  she  had 
Crohn's  disease."  Finding  of  Fact  No.  18,  App.  to  Pet.  for  Cert. 
D-43.  Based  on  this  critical  finding,  the  District  Court  denied 
respondent  any  relief  under  §  504  of  the  Rehabilitation  Act  of 
1973,  29  U.  S.  C.  §  794. 

The  Court  of  Appeals  for  the  Ninth  Circuit  reversed.  After  re- 
viewing the  prior  history  of  the  case  and  explaining  why  it  had 
previously  reversed  the  District  Court's  order  denying  respond- 
ent's motion  for  a  preliminary  injunction,  the  Court  of  Appeals 
wrote: 

"The  trial  in  the  district  court  did  not  produce  substantially 
different  evidence  from  that  which  we  considered  in  Kling  I. 
The  district  court's  findings  are  clearly  erroneous  and  in  many 
instances  are  inconsistent.  We  find  that  Mary  Kling  is  an 
'otherwise  qualified  handicapped  individual'  within  the  mean- 
ing of  section  504  of  the  Rehabilitation  Act l  and  that  she  was 
denied  admission  to  the  School  of  Nursing  solely  because  of 
her  handicap.2  The  school's  physician,  Dr.  Crary,  rejected 
Kling  because  she  suffers  from  Crohn's  Disease.  He  as- 
sumed that  merely  because  of  her  disease  she  would  be  un- 
able to  complete  the  school's  program.  He  did  not  evaluate 
her  on  an  individual  basis  and  even  testified  that  had  he 
known  more  about  KLing's  medical  history,  he  would  have 
been  'swayed  very  strongly  toward  acceptance.'  It  is  pre- 
cisely this  type  of  general  assumption  about  a  handicapped 
person's  ability  that  section  504  was  designed  to  avoid.  See 


938  OCTOBER  TERM,  1985 

STEVENS,  J.,  dissenting  474  U.  S. 

Bentivegna  v.  United  States  Department  of  Labor,  694  P.  2d 
619  (9th  Cir.  1982);  Pushkin  v.  Board  of  Regents  of  the  Uni- 
versity of  Colorado,  658  F.  2d  1372,  1385  (10th  Cir.  1981). 
This  district  court's  legal  conclusions  are  similarly  erroneous. 

"*29  U.  S.  C.  §  794.     See  34  CFR  §  104.3(j). 

"2The  School  of  Nursing's  claim  that  Kling  was  not  otherwise  qualified 
because  she  failed  to  meet  the  mathematical  entrance  requirement  is 
meritless.  Because  Kling  was  rejected  solely  because  of  her  handicap 
and  because  this  decision  was  made  without  regard  to  her  mathematical 
deficiency  and  before  she  had  an  opportunity  to  submit  evidence  that  she 
had  or  had  not  remedied  the  deficiency,  it  is  irrelevant  that  the  defi- 
ciency may  have  existed." 

App.  to  Pet.  for  Cert.  A-6— A-7,  and  nn.  1,  2. 

As  this  Court's  summary  disposition  today  demonstrates,  the 
Court  of  Appeals  would  have  been  well  advised  to  discuss  the 
record  in  greater  depth.  One  reason  it  failed  to  do  so  is  that  the 
members  of  the  panel  decided  that  the  issues  presented  by  this 
case  did  not  warrant  discussion  in  a  published  opinion  that  could 
be  "cited  to  or  by  the  courts  of  this  circuit,  save  as  provided  by 
Rule  21(c)."  Id.,  at  A-2,  n.  **.  That  decision  not  to  publish  the 
opinion  or  permit  it  to  be  cited— like  the  decision  to  promulgate  a 
rule  spawning  a  body  of  secret  law— was  plainly  wrong.1 

The  brevity  of  analysis  in  the  Court  of  Appeals'  unpublished, 
noncitable  opinion,  however,  does  not  justify  the  Court's  sum- 
mary reversal.2  Presumably,  the  Court's  reversal  is  not  based  on 


1FThe  proliferation  of  this  secret  law  has  prompted  extensive  comment. 
See,  e.  g.t  R.  Posner,  The  Federal  Courts  120-126  (1985);  Wald,  The  Problem 
with  the  Courts:  Black-robed  Bureaucracy,  or  Collegiality  Under  Challenge?, 
42  Md.  L.  Rev.  766,  781-783  (1983);  Reynolds  &  Richman,  An  Evaluation  of 
Limited  Publication  in  the  United  States  Courts  of  Appeals:  The  Price  of 
Reform,  48  U.  Chi.  L.  Rev.  573  (1981);  Reynolds  &  Richman,  The  Non- 
Precedential  Precedent— Limited  Publication  and  No-Citation  Rules  in  the 
United  States  Courts  of  Appeals,  78  Colum.  L.  Rev.  1167  (1978);  Stevens, 
Address  to  the  Illinois  State  Bar  Association's  Centennial  Dinner,  65  111. 
Bar  J.  508,  510  (1977).  Cf.  Grodin,  The  Depublication  Practice  of  the  Califor- 
nia Supreme  Court,  72  Calif.  L.  Rev.  514  (1984). 

2  The  petition  for  certiorari  submitted  the  Ninth  Circuit's  opinion  as  it  was 
issued,  with  the  footnote  explaining  that  the  opinion  could  not  be  published  or 
cited.  Two  days  after  the  petition  for  certiorari  was  filed,  the  Ninth  Circuit 
panel  issued  an  order,  as  part  of  the  publication  of  the  slip  opinion,  that  "re- 
designated"  the  earlier  decision  as  "an  authored  opinion."  See  Kling  v. 
County  of  Los  Angeles,  No.  83-6193,  Order  and  Opinion  (Aug.  23,  1985). 
The  opinion  is  now  published.  See  769  F.  2d  532  (1985). 


ORDERS  939 

936  STEVENS,  J.,  dissenting 

a  view  that  the  Court  of  Appeals  misapprehended  the  govern- 
ing standard:  as  the  Ninth  Circuit  stated,  findings  of  fact  by  the 
District  Court  are  reviewable  to  determine  if  they  are  "clearly 
erroneous."  Fed.  Rule  Civ.  Proc.  52(a).  Apparently,  the  Court 
disagrees  with  the  Ninth  Circuit's  application  of  that  standard. 
However,  the  Court's  reversal  is  not  accompanied  by  a  review  of 
the  District  Court's  factual  findings  or  a  determination  that  they 
are  not,  in  fact,  "clearly  erroneous."  The  Court  is  thus  spared 
the  necessity  of  explaining  the  apparent  inconsistencies  in  the  Dis- 
trict Court's  findings.8  The  Court  is  also  spared  the  necessity  of 
addressing  the  fact  that  petitioners'  own  rendition  of  the  incidents 
in  question  suggests  that  the  District  Court's  findings  give  a  less 
than  complete  accounting  of  certain  events — events  that  may  well 
influence  a  court's  view  of  the  matter  at  hand.4 


8  Compare  Finding  of  Fact  No.  16,  App.  to  Pet.  for  Cert.  D-42  ("Plaintiff 
has  failed  to  show  that  she  is  a  person  who  has  a  physical  or  mental  impair- 
ment which  substantially  limits  one  or  more  of  her  major  life  activities,  or  has 
a  record  of  such  impairment  or  is  regarded  as  having  such  an  impairment") 
with  Finding  of  Fact  No.  4,  App.  to  Pet.  for  Cert.  D-36  ("Plaintiff  at  all  times 
herein  mentioned  suffered  from  Crohn's  disease,  an  innamatory  [sic]  bowel 
disorder  involving  the  digestive  tract  which  prevents  passage  and  absorption 
of  food  and  causes  in  plaintiff  unpredictable  episodes  of  nausea,  vomiting, 
fever,  headaches,  loss  of  weight  and  acute  abdominal  pain  among  other  things 
and  which  can  require  rest,  medication,  treatment,  and  hospitalization")  and 
Finding  of  Fact  No.  10,  App.  to  Pet.  for  Cert.  D-39  ("The  record  reflected 
that  in  the  ten  months  preceding  Dr.  Crary's  review,  plaintiff  had  been  hospi- 
talized four  times  for  Crohn's  disease,  although  plaintiff  only  reported  three 
hospitalizations") . 

Compare  also  Finding  of  Fact  No.  12,  App.  to  Pet.  for  Cert.  D-40— D-41 
(Dr.  Crary's  "rejection  of  plaintiff  as  a  candidate  for  the  School  on  June  11, 
1979  was  for  health  reasons,  because  he  believed  it  was  unlikely  she  could 
complete  the  rigorous  program  and  because  he  believed  her  health  would  be 
endangered  if  she  attempted  to  complete  the  program")  and  Finding  of  Fact 
No.  13,  App.  to  Pet.  for  Cert.  D-41  ("Neither  the  Admissions  Committee  nor 
Mary  Duncan,  Registrar,  had  the  authority  to  overrule  Dr.  Crary's  medical 
decision")  with  Finding  of  Fact  No.  18,  App.  to  Pet.  for  Cert.  D-43  ("Plaintiff 
has  failed  to  show  that  she  was  denied  admission  to  the  School  solely  by  rea- 
son of  her  affliction  or  because  she  had  Crohn's  disease"). 

4  Compare  Finding  of  Fact  No.  7,  App.  to  Pet.  for  Cert.  D-37  ("Plaintiff's 
application  was  considered  by  the  Admissions  Committee  of  the  School  on 
April  5,  1979.  Her  acceptance  academically  by  the  School  was  conditional 
due  to  her  failure  to  achieve  a  passing  score  in  mathematics")  with  Pet.  for 
Cert.  4-5  ("In  April,  1979,  by  mistake,  respondent  was  given  a  letter  uncondi- 
tionally accepting  her  application,  even  though  her  score  on  a  mathematics 


940  OCTOBER  TERM,  1985 

STEVENS,  J.,  dissenting  474  U.  S. 

Finally,  the  Court  is  spared  the  necessity  of  analyzing  the  Dis- 
trict Court's  factual  findings  in  the  context  of  the  record.  The 
absence  of  such  an  analysis  is  somewhat  puzzling.  The  entirety 
of  the  majority's  analysis  is  a  reference  to  Anderson  v.  Bessemer 
City,  470  U.  S.  564  (1985).  In  that  case,  the  Court  found  it 
necessary  to  review  the  record  before  it  reversed  the  Court  of 
Appeals'  conclusion  that  the  District  Court's  findings  were  clearly 
erroneous.  Id.,  at  576-581.  The  Court's  refusal  to  undertake 
such  a  review  for  its  summary  disposition  in  the  case  before  us 
is  especially  disturbing  when  it  is  recalled  that,  under  current 
Court  practice,  the  petitioner  does  not  usually  file  the  record  with 
a  petition  for  certiorari.5 

In  my  judgment,  this  Court  does  not  use  its  scarce  resources 
wisely  when  it  undertakes  to  engage  in  the  de  novo  review  of  fac- 
tual records  in  relatively  routine  litigation.  Cf.  United  States  v. 
Hasting,  461  U.  S.  499,  516-518  (1983)  (STEVENS,  J.,  concurring 
in  judgment).  When  such  review  is  necessary  to  a  disposition, 
however,  and  the  Court  fails  to  provide  it,  the  problems  of  this 
Court's  review  are  still  more  troubling.  For,  like  a  court  of  ap- 
peals that  issues  an  opinion  that  may  not  be  printed  or  cited,  this 
Court  then  engages  in  decisionmaking  without  the  discipline  and 
accountability  that  the  preparation  of  opinions  requires.6 
I  respectfully  dissent  from  the  Court's  summary  reversal. 

portion  of  the  entrance  examination  was  deficient,  and  even  though  she  had 
not  been  cleared  for  admission  by  the  School's  Student  Health  Physician,  Ger- 
ald C.  Crary,  M.  D.  ...  In  an  interview  on  April  20,  1979,  the  School's  Reg- 
istrar, Mary  J.  Duncan,  told  respondent  that  her  acceptance  was  actually  con- 
ditional on  her  presenting  evidence  of  tutoring  and  testing  to  establish  the 
requisite  thirteenth-grade  level  of  proficiency  in  mathematics  concepts  and 
problems,  and  on  her  passing  the  physical  requirements"). 

5  See  this  Court's  Rule  21;  Stevens,  The  Life  Span  of  a  Judge-Made  Rule,  58 
N.  Y.  U.  L.  Rev.  1,  13  (1983);  R.  Stern  &  E.  Gressman,  Supreme  Court  Prac- 
tice 424-429  (5th  ed.  1978). 

6  "In  our  law  the  opinion  has  in  addition  a  central  forward-looking  function 
which  reaches  far  beyond  the  cause  in  hand:  the  opinion  has  as  one  if  not  its 
major  office  to  show  how  like  cases  are  properly  to  be  decided  in  the  future. 
This  also  frequently  casts  its  shadow  before,  and  affects  the  deciding  of  the 
cause  in  hand.     (If  I  cannot  give  a  reason  I  should  be  willing  to  stand  to,  I 
must  shrink  from  the  very  result  which  otherwise  seems  good.)     Thus  the 
opinion  serves  as  a  steadying  factor  which  aids  reckonability." 

K.  Llewellyn,  The  Common  Law  Tradition  26  (1960),  quoted  in  Reynolds  & 
Richman,  supra  n.  1,  at  1204. 


ORDERS  941 

474  U.  S.  November  4,  1985 

JUSTICE  BRENNAN  dissents  from  the  Court's  summary  reversal 
substantially  for  the  reasons  stated  by  JUSTICE  STEVENS. 

Certiorari  Granted  in  Part— Reversed.      (See  No.  85-130,  ante, 
P- 9.) 

Miscellaneous  Orders 

No. .     JURECZKI  v.  CITY  OF  SEABROOK,  TEXAS,  ET 

AL.     Motion  to  direct  the  Clerk  to  file  the  petition  for  writ  of  cer- 
tiorari  which  does  not  comply  with  the  Rules  of  this  Court  denied. 

No.  A-223.  DODSON  v.  COOPER,  SUPERINTENDENT,  SHADOW 
MOUNTAIN  CORRECTIONAL  FACILITY.  Sup.  Ct.  Colo.  Applica- 
tion for  stay,  addressed  to  JUSTICE  MARSHALL  and  referred  to  the 
Court,  denied. 

No.  A-251.  JENNINGS  v.  JENNINGS.  Sup.  Ct.  Iowa.  Appli- 
cation for  stay,  addressed  to  JUSTICE  WHITE  and  referred  to  the 
Court,  denied. 

No.  D-528.  IN  RE  DISBARMENT  OF  LARKIN.  It  is  ordered 
that  Tom  L.  Larkin,  of  Birmingham,  Ala. ,  be  suspended  from  the 
practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-529.  IN  RE  DISBARMENT  OF  MENDELL.  It  is  ordered 
that  Stephen  W.  Mendell,  of  St.  Joseph,  Mo. ,  be  suspended  from 
the  practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-530.  IN  RE  DISBARMENT  OF  SIEGFRIED.  It  is  ordered 
that  Scott  Thomas  Siegfried,  of  Wadsworth,  Ohio,  be  suspended 
from  the  practice  of  law  in  this  Court  and  that  a  rule  issue,  return- 
able within  40  days,  requiring  him  to  show  cause  why  he  should 
not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  103,  Orig.  SOUTH  DAKOTA  v.  NEBRASKA  ET  AL.  The  So- 
licitor General  is  invited  to  file  a  brief  in  this  case  expressing  the 
views  of  the  United  States. 

No.  83-2004.  MATSUSHITA  ELECTRIC  INDUSTRIAL  Co.,  LTD., 
ET  AL.  v.  ZENITH  RADIO  CORP.  ET  AL.  C.  A.  3d  Cir.  [Certio- 
rari granted,  471  U.  S.  1002.]  Motion  of  the  Solicitor  General  to 


942  OCTOBER  TERM,  1985 

November  4,  1985  474  U.  S. 

permit  Charles  F.  Rule,  Esquire,  to  present  oral  argument  pro 
hac  vice  granted. 

No.  84-773.  BENDER  ET  AL.  v.  WILLIAMSPORT  AREA  SCHOOL 
DISTRICT  ET  AL.  C.  A.  3d  Cir.  [Certiorari  granted,  469  U.  S. 
1206.]  Motion  of  petitioners  for  leave  to  file  a  supplemental  brief 
after  argument  granted. 

No.  84-1362.  PUBLIC  SERVICE  COMMISSION  OF  MARYLAND  v. 
CHESAPEAKE  &  POTOMAC  TELEPHONE  COMPANY  OF  MARYLAND. 
C.  A.  4th  Cir.  [Certiorari  granted,  472  U.  S.  1026.]  Motion  of 
the  Solicitor  General  for  leave  to  participate  in  oral  argument  as 
amicus  curiae  and  for  divided  argument  granted.  JUSTICE  POW- 
ELL and  JUSTICE  O'CONNOR  took  no  part  in  the  consideration  or 
decision  of  this  motion. 

No.  84-1484.  WISCONSIN  DEPARTMENT  OF  INDUSTRY,  LABOR 
AND  HUMAN  RELATIONS  ET  AL.  v.  GOULD  INC.  C.  A.  7th  Cir. 
[Probable  jurisdiction  noted,  471  U.  S.  1115.]  Motion  of  Chamber 
of  Commerce  of  the  United  States  of  America  for  leave  to  file  a 
brief  as  amicus  curiae  granted. 

No.  84-1531.     MICHIGAN  v.  JACKSON;  and 

No.  84-1539.  MICHIGAN  v.  BLADEL.  Sup.  Ct.  Mich.  [Certio- 
rari granted,  471  U.  S.  1124.]  Motion  of  petitioner  to  reconsider 
order  denying  motion  for  divided  argument  [ante,  p.  810]  denied. 

No.  84-1948.  BLOCK,  SECRETARY  OF  AGRICULTURE,  ET  AL.  v. 
PAYNE  ET  AL.  C.  A.  llth  Cir.  [Certiorari  granted,  ante, 
p.  815.]  Motion  of  the  Solicitor  General  to  dispense  with  printing 
the  joint  appendix  granted. 

No.  84-6263.  BATSON  v.  KENTUCKY.  Sup.  Ct.  Ky.  [Certio- 
rari granted,  471  U.  S.  1052.]  Motion  of  Elizabeth  Holtzman, 
District  Attorney  for  Kings  County,  New  York,  for  leave  to  par- 
ticipate in  oral  argument  as  amicus  curiae,  for  divided  argument, 
and  for  additional  time  for  oral  argument  denied. 

No.  84-6859.  SKIPPER  v.  SOUTH  CAROLINA.  Sup.  Ct.  S.  C. 
[Certiorari  granted,  ante,  p.  900.]  Motion  for  appointment  of 
counsel  granted,  and  it  is  ordered  that  David  I.  Bruck,  Esquire,  of 
Columbia,  S.  C.,  be  appointed  to  serve  as  counsel  for  petitioner  in 
this  case. 

No.  85-129.  WIMBERLY  v.  LABOR  AND  INDUSTRIAL  RELA- 
TIONS COMMISSION  OP  MISSOURI  ET  AL.  Sup.  Ct.  Mo.;  and 


ORDERS  943 

474  U.  S.  November  4,  1985 

No.  85-279.  AMERICAN  PETROFINA  COMPANY  OF  TEXAS  v. 
OIL  CHEMICAL  &  ATOMIC  WORKERS  INTERNATIONAL  UNION 
LOCAL  No.  4-23  ET  AL.  C.  A.  5th  Cir.  The  Solicitor  General  is 
invited  to  file  briefs  in  these  cases  expressing  the  views  of  the 
United  States. 

No.  85-188.  KEMP,  WARDEN  v.  BLAKE.  C.  A.  llth  Cir. 
Motion  of  respondent  for  leave  to  proceed  in  forma  pauperis 
granted. 

No.  85-5023.     POLAND  v.  ARIZONA;  and 

No.  85-5024.  POLAND  v.  ARIZONA.  Sup.  Ct.  Ariz.  [Certio- 
rari  granted,  ante,  p.  816.]  Motions  for  appointment  of  counsel 
granted,  and  it  is  ordered  that  H.  K.  Wilhelmsen,  Esquire,  of 
Prescott,  Ariz.,  be  appointed  to  serve  as  counsel  for  petitioners  in 
these  cases. 

No.  85-5401.  IN  RE  DAY.  Sup.  Ct.  Tex.  Petition  for  writ  of 
common-law  certiorari  denied. 

No.  85-5381.  IN  RE  PALLETT; 

No.  85-5414.  IN  RE  MEADOWS; 

No.  85-5430.  IN  RE  PARRISH;  and 

No.  85-5441.  IN  RE  JOKINEN.  Petitions  for  writs  of  manda- 
mus denied. 

Probable  Jurisdiction  Noted  or  Postponed 

No.  84-902.  WARDAIR  CANADA  INC.  v.  FLORIDA  DEPART- 
MENT or  REVENUE.  Appeal  from  Sup.  Ct.  Fla.  Probable  juris- 
diction noted.  Reported  below:  455  So.  2d  326. 

No.  84-1904.  UNITED  STATES  DEPARTMENT  OF  THE  TREAS- 
URY, BUREAU  OF  ALCOHOL,  TOBACCO  AND  FIREARMS  v.  GALIOTO. 
Appeal  from  D.  C.  N.  J.  Probable  jurisdiction  noted.  Reported 
below:  602  F.  Supp.  682. 

No.  85-62.  MAINE  v.  TAYLOR  ET  AL.  Appeal  from  C.  A.  1st 
Cir.  Further  consideration  of  question  of  jurisdiction  postponed 
to  hearing  of  case  on  the  merits.  Reported  below:  752  F.  2d  757. 

Certiorari  Granted 

No.  85-140.  BOWERS,  ATTORNEY  GENERAL  OF  GEORGIA  v 
HARDWICK  ET  AL.  C.  A.  llth  Cir.  Certiorari  granted.  Re- 
ported below:  760  F.  2d  1202. 


944  OCTOBER  TERM,  1985 

November  4,  1985  474  U.  S. 

No.  85-198.  CELOTEX  CORP.  v.  CATRETT,  ADMINISTRATRIX 
or  THE  ESTATE  OF  CATRETT.  C.  A.  D.  C.  Cir.  Certiorari 
granted.  Reported  below:  244  U.  S.  App.  D.  C.  160,  756  F.  2d 
181. 

No.  85-227.  SMALIS  ET  AL.  v.  PENNSYLVANIA.  Sup.  Ct.  Pa. 
Certiorari  granted.  Reported  below:  507  Pa.  344,  490  A.  2d  394. 

No.  85-385.  BROCK,  SECRETARY  OF  LABOR  v.  PIERCE 
COUNTY.  C.  A.  9th  Cir.  Certiorari  granted.  Reported  below: 
759  F.  2d  1398. 

No.  85-5189.  MCLAUGHLIN  v.  UNITED  STATES.  C.  A.  4th 
Cir.  Motion  of  petitioner  for  leave  to  proceed  in  forma  pauperis 
and  certiorari  granted. 

Certiorari  Denied.     (See  also  Nos.  85-380,  85-415,  85-534,  and 

85-5401,  supra.) 

No.  84-1645.  WEISS  v.  UNITED  STATES.  C.  A.  2d  Cir.  Cer- 
tiorari denied.  Reported  below:  752  F.  2d  777. 

No.  84-1766.  SMITH  v.  THIGPEN,  COMMISSIONER,  MISSISSIPPI 
DEPARTMENT  OF  CORRECTIONS,  ET  AL.  C.  A.  5th  Cir.  Certio- 
rari denied.  Reported  below:  760  F.  2d  267. 

No.  84-1952.  WOOD  v.  FEDERAL  DEPOSIT  INSURANCE  COR- 
PORATION. C.  A.  6th  Cir.  Certiorari  denied.  Reported  below: 
758  F.  2d  156. 

No.  84-2005.  IN  RE  GROTHE.  Ct.  Crim.  App.  Tex.  Certio- 
rari denied.  Reported  below:  687  S.  W.  2d  736. 

No.  84-6748.  WILEY  v.  TEXAS.  C.  A.  5th  Cir.  Certiorari 
denied. 

No.  84-6753.  CARSON  v.  TURNER  ET  AL.  C.  A.  5th  Cir. 
Certiorari  denied. 

No.  84-6756.  LEWIS  v.  PORT  AUTHORITY  OF  NEW  YORK  ET 
AL.  C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  755  F. 
2d  921. 

No.  84-6759.  MIDWIFE  ET  AL.  v.  WOODS  ET  AL.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  745  F.  2d  67. 

No.  84-6786.  WILSON  v.  REES,  SUPERINTENDENT,  KENTUCKY 
STATE  REFORMATORY.  C.  A.  6th  Cir.  Certiorari  denied.  Re- 
ported below:  762  F.  2d  1014. 


ORDERS  945 

474  U.  S.  November  4,  1985 

No.  84-6845.  MARK,  AKA  WILLIAMS  v.  CALDWELL  ET  AL. 
C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  754  F.  2d 
1260. 

No.  84-6931.  MARTINEZ- VALDEZ  v.  UNITED  STATES.  C.  A. 
llth  Cir.  Certiorari  denied.  Reported  below:  757  F.  2d  1204. 

No.  84-6932.  CHITTY  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  425. 

No.  85-17.  VERNON  u  MAGGIO,  WARDEN.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  750  F.  2d  68. 

No.  85-43.  SENFT  ET  AL.  u  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  991. 

No.  85-44.  BERGMAN  u  UNITED  STATES  ET  AL.  C.  A.  10th 
Cir.  Certiorari  denied.  Reported  below:  751  F.  2d  314. 

No.  85-79.  TOLAND  v.  ARKANSAS.  Sup.  Ct.  Ark.  Certiorari 
denied.  Reported  below:  285  Ark.  415,  688  S.  W.  2d  718. 

No.  85—211.  DRACOS,  ADMINISTRATRIX  FOR  THE  ESTATE  OF 
DRACOS  v.  HELLENIC  LINES  LTD.  C.  A.  4th  Cir.  Certiorari 
denied.  Reported  below:  762  F.  2d  348. 

No.  85-221.  JENSEN  v.  HECKLER,  SECRETARY  OF  HEALTH 
AND  HUMAN  SERVICES.  C.  A.  8th  Cir.  Certiorari  denied.  Re- 
ported below:  766  F.  2d  383. 

No.  85-222.  BAKER,  INDIVIDUALLY  AND  DBA  BAKER  COAL 
Co.  v.  UNITED  STATES.  C.  A.  3d  Cir.  Certiorari  denied.  Re- 
ported below:  770  F.  2d  1076. 

No.  85-234.  UNITED  ARTISTS  COMMUNICATIONS,  INC.  v. 
UNITED  STATES  ET  AL.  C.  A.  7th  Cir.  Certiorari  denied.  Re- 
ported below:  756  F.  2d  502. 

No.  85-263.  MAGGETTE  v.  COOK  COUNTY  POLICE  AND  COR- 
RECTIONS MERIT  BOARD  ET  AL.  App.  Ct.  111.,  1st  Dist.  Certio- 
rari denied.  Reported  below:  129  111.  App.  3d  1149,  491  N.  E.  2d 
1382. 

No.  85-273.  FLORIDA  v.  Ross.  Dist.  Ct.  App.  Fla.,  4th  Dist. 
Certiorari  denied.  Reported  below:  471  So.  2d  196. 

No.  85-287.  COURT  HOUSE  PLAZA  Co.  v.  CITY  OF  PALO  ALTO 
ET  AL.  Ct.  App.  CaL,  6th  App.  Dist.  Certiorari  denied. 


946  OCTOBER  TERM,  1985 

November  4,  1985  474  U.  S. 

No.  85-321.  PETERSON  v.  AIR  LINE  PILOTS  ASSN.,  INTERNA- 
TIONAL, ET  AL.  C.  A.  4th  Cir.  Certiorari  denied.  Reported 
below:  759  F.  2d  1161. 

No.  85-343.  PRUDENTIAL  FEDERAL  SAVINGS  &  LOAN  ASSN. 
u  EQUAL  EMPLOYMENT  OPPORTUNITY  COMMISSION.  C.  A.  10th 
Cir.  Certiorari  denied.  Reported  below:  763  F.  2d  1166. 

No.  85-345.  ALLEN  u  CITY  OF  KINLOCH,  MISSOURI.  C.  A. 
8th  Cir.  Certiorari  denied.  Reported  below:  763  F.  2d  335. 

No.  85-349.  TOMCZAK  u  CITY  OF  CHICAGO.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  633. 

No.  85-351.  W.  A.  FOOTE  MEMORIAL  HOSPITAL,  INC.  v. 
GRUBB.  C.  A.  6th  Cir.  Certiorari  denied.  Reported  below: 
759  F.  2d  546. 

No.  85-360.    WASSERSTROM  u  EISENBERG  ET  AL.; 
No.  85-407.    WEINSTEIN  v.  EISENBERG  ET  AL.  ;  and 
No.   85-514.      PELINO,   WASSERSTROM,    CHUCAS    &   MONTE- 
VERDE,  P.  C.  u  EISENBERG  ET  AL.      C.  A.  3d  Cir.      Certiorari 
denied.     Reported  below:  766  F.  2d  770. 

No.  85-365.  RUSTIN  ET  AL.  v.  DISTRICT  OF  COLUMBIA.  Ct. 
App.  D.  C.  Certiorari  denied.  Reported  below:  491  A.  2d  496. 

No.  85-370.  HEPLER  v.  COLUMBIA  BROADCASTING  SYSTEM, 
INC.  Ct.  App.  Wash.  Certiorari  denied.  Reported  below:  39 
Wash.  App.  838,  696  P.  2d  596. 

No.  85-371.  GENESIS  BROADCASTING  LTD.  v.  FEDERAL  COM- 
MUNICATIONS COMMISSION  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari 
denied.  Reported  below:  245  U.  S.  App.  D.  C.  233,  759  F.  2d 
959. 

No.  85-373.  REED  ET  AL.  u  TERRELL  ET  AL.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  472. 

No.  85-374.  BENSON  v.  DEPARTMENT  OF  HEALTH  AND 
HUMAN  SERVICES.  C.  A.  Fed.  Cir.  Certiorari  denied.  Re- 
ported below:  765  F.  2d  162. 

No.  85-378.  ROBERTS  ET  AL.  v.  SIMPSON,  EXECUTRIX  OF  THE 
ESTATE  OF  BEEL,  ET  AL.  Ct.  App.  Ark.  Certiorari  denied. 
Reported  below:  15  Ark.  App.  xix. 


ORDERS  947 

474  U.  S.  November  4,  1985 

No.  85-381.  PATEL  v.  FLYING  TIGER  LINE,  INC.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  1018. 

No.  85-382.  HEGGY  v.  WELTY  ET  ux.  Ct.  App.  Wis.  Cer- 
tiorari denied.  Reported  below:  124  Wis.  2d  318,  369  N.  W.  2d 
763. 

No.  85-383.  JOHNSTON  v.  CITY  OF  ANN  ARBOR  ET  AL.  C.  A. 
6th  Cir.  Certiorari  denied.  Reported  below:  767  F.  2d  920. 

No.  85-384.  BROWN  u  FERRO  CORP,  ET  AL.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  798. 

No.  85-387.  MAINES  ET  AL.  v.  SECRETARY  OF  STATE  OF 
MAINE.  Sup.  Jud.  Ct.  Me,  Certiorari  denied.  Reported  below: 
493  A.  2d  326. 

No.  85-389.  CHAPMAN  ET  AL.  u  LUNA  ET  AL.  Sup.  Ct. 
N.  M.  Certiorari  denied.  Reported  below:  102  N.  M.  768,  701 
P.  2d  367. 

No.  85-397.  FUDGER  v.  COUNTY  OF  MONTGOMERY.  C.  A.  2d 
Cir.  Certiorari  denied.  Reported  below:  765  F.  2d  135. 

No.  85-399.  YOUNG  ET  AL.  v.  GREAT  ATLANTIC  &  PACIFIC 
TEA  Co.  C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  760 
F.  2d  263. 

No.  85-401.  MCCOTTER,  DIRECTOR,  TEXAS  DEPARTMENT  OF 
CORRECTIONS  v.  JONES.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  767  F.  2d  101. 

No.  85-403.  SCHELLER  v.  AMERICAN  MEDICAL  INTERNA- 
TIONAL, INC.,  ET  AL.  Dist.  Ct.  App.  Fla.,  4th  Dist.  Certiorari 
denied.  Reported  below:  462  So.  2d  1. 

No.  85-409.  HUNT,  BY  AND  THROUGH  HIS  FATHER  AND  NEXT 
FRIEND,  HUNT,  ET  AL.  v.  GUILFORD  COUNTY  BOARD  OF  EDUCA- 
TION. C.  A.  4th  Cir.  Certiorari  denied.  Reported  below:  762 
F.  2d  998. 

No.  85-414.  AMBROSE  v.  SPERRY  RAND  CORP.  ET  AL.  C.  A. 
8th  Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  273. 

No.  85-419.  GENERAL  DRIVERS  &  HELPERS  UNION,  LOCAL 
No.  554  v.  MID-CONTINENT  BOTTLERS,  INC.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  482. 


948  OCTOBER  TERM,  1985 

November  4,  1985  474  U.  S. 

No.  85-424.  MEAD,  A  MINOR,  BY  MEAD,  HIS  FATHER  AND 
NEXT  FRIEND  u  UNITED  STATES  C.  A.  7th  Cir.  Certiorari 
denied.  Reported  below:  767  F.  2d  924. 

No.  85-435.  CITY  OF  GAINESVILLE,  FLORIDA  v.  ISLAND 
CREEK  COAL  SALES  Co.  C.  A.  6th  Cir.  Certiorari  denied.  Re- 
ported below:  764  F.  2d  437. 

No.  85-436.  FLORIDA  STATE  UNIVERSITY  HEALTH  CENTER 
ET  AL.  u  JOSHI.  C.  A.  llth  Cir.  Certiorari  denied.  Reported 
below:  763  F.  2d  1227. 

No.  85-439.  CALIFORNIA  EX  REL.  COOPER,  CITY  ATTORNEY 
OF  SANTA  ANA,  CALIFORNIA  u  MITCHELL  BROTHERS'  SANTA 
ANA  THEATER  ET  AL.  Ct.  App.  Cal.,  4th  App.  Dist.  Certiorari 
denied.  Reported  below:  165  Cal.  App.  3d  378,  211  Cal.  Rptr. 
501. 

No.  85-449.  ISLAMIC  REPUBLIC  OF  IRAN  ET  AL.  u  MCDON- 
NELL DOUGLAS  CORP.  C.  A.  8th  Cir.  Certiorari  denied.  Re- 
ported below:  758  F.  2d  341. 

No.  85-453.  SAN  ANTONIO  INDEPENDENT  SCHOOL  DISTRICT  v. 
CITY  OF  SAN  ANTONIO.  Ct.  App.  Tex.,  4th  Sup.  Jud.  Dist.  Cer- 
tiorari denied.  Reported  below:  683  S.  W.  2d  67. 

No.  85-454.  SIBAJA  ET  AL.  v.  Dow  CHEMICAL  Co.  ET  AL. 
C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  757  F.  2d 
1215. 

No.  85-464.  MEYERS  INDUSTRIES,  INC.  v.  PRILL  ET  AL. 
C.  A.  D.  C.  Cir.  Certiorari  denied.  Reported  below:  244  U.  S. 
App.  D.  C.  42,  755  F.  2d  941. 

No.  85-479.  MEDINA  v.  UNITED  STATES  ET  AL.  C.  A.  1st 
Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  252. 

No.  85-480.  STRODE  v.  GREGORY  ET  AL.  Ct.  App.  Cal.,  3d 
App.  Dist.  Certiorari  denied. 

No.  85-491.  RAZZANO  ET  AL.  v.  DUNLOP  TIRE  &  RUBBER  Co., 
INC.  C.  A.  4th  Cir.  Certiorari  denied.  Reported  below:  760  F. 
2d  265. 

No.  85-511.  PAK-MOR  MANUFACTURING  Co.  v.  JONES  ET  AL. 
Sup.  Ct.  Ariz.  Certiorari  denied.  Reported  below:  145  Ariz. 
121,  700  P.  2d  819. 


ORDERS  949 

474  U.  S.  November  4,  1985 

No.    85-518.        PlNCKARD    ET    AL.    V.    UNITED    STATES.        C.  A. 

llth  Cir.      Certiorari  denied.      Reported  below:  749  F.  2d  1477. 

No.  85-520.  HOLWAY  v.  BURGER,  CHIEF  JUSTICE  OF  THE 
UNITED  STATES,  ET  AL.  C.  A.  4th  Cir.  Certiorari  denied. 

No.  85-543.  MORENO  v.  MISSISSIPPI.  Sup.  Ct.  Miss.  Certio- 
rari denied.  Reported  below:  471  So.  2d  395. 

No.  85-564.  PROVENZANO  ET  AL.  v.  UNITED  STATES.  C.  A. 
3d  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  1077. 

No.  85-565.  WOODSIDE,  EXECUTOR  OF  THE  ESTATE  OF 
WOODSIDE  v.  HOERNER  ET  AL.  C.  A.  3d  Cir.  Certiorari  denied. 
Reported  below:  772  F.  2d  897. 

No.  85-580.  MARTORANO  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  63. 

No.  85-582.  SPARROW  v.  DEVINE,  DIRECTOR,  U.  S.  OFFICE 
OF  PERSONNEL  MANAGEMENT,  ET  AL.  C.  A.  D.  C.  Cir.  Certio- 
rari denied. 

No.  85-593.  PAPPANIKOLAOU  ET  AL.  v.  SECRETARY  OF  THE 
ARMY.  C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  770 
F.  2d  157. 

No.  85-5001.  MCCRARY,  AKA  EVANS  v.  FRANKLIN  STATE 
BANK.  Sup.  Ct.  N.  J.  Certiorari  denied. 

No.  85-5017.  WIGLEY  v.  FLORIDA.  Dist.  Ct.  App.  Fla.,  4th 
Dist.  Certiorari  denied.  Reported  below:  467  So.  2d  429. 

No.  85-5034.  APPOLONEY  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  520. 

No.  85-5056.  MITCHELL  v.  DAVIS,  WARDEN.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  279. 

No.  85-5090.  SMITH  v.  ILLINOIS.  App.  Ct.  111.,  1st  Dist. 
Certiorari  denied.  Reported  below:  127  111.  App.  3d  1163,  483 
N.  E.  2d  729. 

No.  85-5107.  BURTON  v.  REED  ET  AL.  C.  A.  8th  Cir.  Cer- 
tiorari denied. 

No.  85-5145.  MULLADY  v.  SMITH,  SUPERINTENDENT,  ATTICA 
CORRECTIONAL  FACILITY,  ET  AL.  C.  A.  2d  Cir.  Certiorari 
denied. 


950  OCTOBER  TERM,  1985 

November  4,  1985  474  U.  S. 

No.  85-5162.     CORTEZ  v.  PENNSYLVANIA.     Sup.  Ct.  Pa.     Cer- 
tiorari  denied.     Reported  below:  507  Pa.  529,  491  A.  2d  111. 

No.  85-5329.     SMITH  v.  CITY  OF  PITTSBURGH.     C.  A.  3d  Cir. 
Certiorari  denied.     Reported  below:  764  F.  2d  188. 

No.  85-5336.     SCOTT  u  DENTON  ET  AL.     C.  A.  6th  Cir.     Cer- 
tiorari denied.     Reported  below:  767  F.  2d  921. 

No.  85-5344.     PAGE  ET  AL.  v.  MISSISSIPPI.     Sup.  Ct.  Miss. 
Certiorari  denied.     Reported  below:  472  So.  2d  362. 

No.  85-5351.     DANO  v.  SZOMBATHY.     Sup.  Ct.  N.  J.     Certio- 
rari denied.     Reported  below:  101  N.  J.  282,  501  A.  2d  945. 

No.  85-5353.     MAHDAVI  v.  SHIRANI.     Ct.  App.  CaL,  1st  App. 
Dist.     Certiorari  denied. 

No.  85-5355.     WEEKS  v.  JOHNSON,  WARDEN,  ET  AL.     C.  A. 
llth  Cir.     Certiorari  denied. 

No.  85-5359.     KAHIKINA  v.  HAWAII.     Sup.  Ct.  Haw.     Certio- 
rari denied.     Reported  below: Haw.  ,  744  P.  2d  775. 

No.  85-5361.     COLEMAN  ET  AL.  v.  DELAWARE  ET  AL.     Sup. 
Ct.  Del.     Certiorari  denied.     Reported  below:  497  A.  2d  785. 

No.  85-5366.     JONES  u  CALIFORNIA  INSTITUTION  FOR  MEN. 
C.  A.  9th  Cir.     Certiorari  denied. 

No.  85-5367.     IN  RE  JAMES.     C.  A.  4th  Cir.     Certiorari  de- 
nied.    Reported  below:  770  F.  2d  160. 

-  No.  85-5373.  REED  u  WAINWRIGHT,  SECRETARY,  FLORIDA 
DEPARTMENT  OF  CORRECTIONS.  C.  A.  llth  Cir.  Certiorari 
denied.  Reported  below:  770  F.  2d  174. 

No.  85-5374.     BALL  u  UNITED  STATES.     C.  A.  8th  Cir.     Cer- 
tiorari denied.     Reported  below:  774  F.  2d  1170. 

No.  85-5376.     HOLLIDAY  v.  HAUPTMAN,  TRUSTEE  IN  BANK- 
RUPTCY.    C.  A.  2d  Cir.     Certiorari  denied. 

No.  85-5378.     BISHOP  v.  DAVIS.      Sup.  Ct.  Ala.      Certiorari 
denied. 


ORDERS  951 

474  U.  S.  November  4,  1985 

No.  85-5388.  MILLER  v.  ELROD,  SHERIFF,  ET  AL.  C.  A.  7th 
Cir.  Certiorari  denied. 

No.  85-5389.  GAY  v.  PETSOCK,  SUPERINTENDENT,  STATE 
CORRECTIONAL  INSTITUTION  AND  DIAGNOSTIC  AND  CLASSIFICA- 
TION CENTER,  ET  AL.  C.  A.  3d  Cir.  Certiorari  denied.  Re- 
ported below:  762  F.  2d  993. 

No.  85-5393.  EARL  v.  ISRAEL,  SUPERINTENDENT,  WAUPUN 
CORRECTIONAL  INSTITUTION.  C.  A.  7th  Cir.  Certiorari  denied. 
Reported  below:  765  F.  2d  91. 

No.  85-5395.  FOWLER  u  SOUTHEAST  TOYOTA  DISTRIBUTORS, 
INC.,  ET  AL.  C.  A.  4th  Cir.  Certiorari  denied.  Reported 
below:  762  F.  2d  998. 

No.  85-5397.  WILLIAMS  v.  PHELPS,  SECRETARY,  LOUISIANA 
DEPARTMENT  OF  PUBLIC  SAFETY  AND  CORRECTIONS,  ET  AL. 
C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  762  F.  2d 
1002. 

No.  85-5398.  MILLER  v.  NEW  YORK.  Ct.  App.  N.  Y.  Cer- 
tiorari denied.  Reported  below:  65  N.  Y.  2d  502,  482  N.  E.  2d 
892. 

No.  85-5399.  YOUNG  v.  LANE,  DIRECTOR,  ILLINOIS  DEPART- 
MENT OF  CORRECTIONS,  ET  AL.  C.  A.  7th  Cir.  Certiorari  de- 
nied. Reported  below:  768  F.  2d  834. 

No.  85-5402.  GRADY  v.  MISSOURI.  Ct.  App.  Mo.,  Eastern 
Dist.  Certiorari  denied.  Reported  below:  691  S.  W.  2d  301. 

No.  85-5403.  HANDLEY  ET  AL.  v.  UNITED  STATES.  C.  A. 
llth  Cir.  Certiorari  denied.  Reported  below:  763  F.  2d  1401. 

No.  85-5405.  AMES  v.  ALASKA  ET  AL.  C.  A.  9th  Cir.  Cer- 
tiorari denied. 

No.  85-5406.  DUPREE  v.  CONNECTICUT.  Sup.  Ct.  Conn. 
Certiorari  denied.  Reported  below:  196  Conn.  655,  495  A.  2d 
691. 

No.  85-5412.  MCDONALD  u  TENNESSEE.  Ct.  Crim.  App. 
Tenn.  Certiorari  denied. 


952  OCTOBER  TERM,  1985 

November  4,  1985  474  U.  S. 

No.  85-5415.  ROBERTS  v.  RUTGERS  STATE  UNIVERSITY  OF 
NEW  JERSEY  ET  AL.  C.  A.  3d  Cir.  Certiorari  denied.  Re- 
ported below:  770  F.  2d  1074. 

No.  85-5422.  ZELLERS  v.  DUCKWORTH,  WARDEN.  C.  A.  7th 
Cir.  Certiorari  denied.  Reported  below:  763  F.  2d  250. 

No.  85-5424.  STOCKI  v.  ILLINOIS.  App.  Ct.  111.,  2d  Dist. 
Certiorari  denied.  Reported  below:  129  111.  App.  3d  1158,  491 
N.  E.  2d  1386. 

No.  85-5426.  FULSOM  v.  MORRIS,  SUPERINTENDENT,  MIS- 
SOURI TRAINING  CENTER  FOR  MEN.  C.  A.  8th  Cir.  Certiorari 
denied.  Reported  below:  774  F.  2d  1170. 

No.  85-5427.  ENGLAND  v.  RYAN,  WARDEN.  C.  A.  3d  Cir. 
Certiorari  denied. 

No.  85-5432.  GOLDBLATT  u  VOGEL  ET  AL.  C.  A.  llth  Cir. 
Certiorari  denied. 

No.  85-5438.  HICKS  v.  McCoTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 

No.  85-5450.  CARDENAS-MONTILLA  ET  AL.  v.  UNITED 
STATES.  C.  A.  llth  Cir.  Certiorari  denied.  Reported  below: 
762  F.  2d  942. 

No.  85-5452.  PREWITT  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  916. 

No.  85-5459.  KOUHESTANIAN  u  UNITED  STATES.  C.  A.  2d 
Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  253. 

No.  85-5465.  MCDOWELL  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1076. 

No.  85-5479.  CRESPO-DiAZ  u  UNITED  STATES.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  764  F.  2d  1514. 

No.  85-5483.  HATCHER  ET  AL.  v.  UNITED  STATES.  C.  A. 
10th  Cir.  Certiorari  denied. 

No.  85-5484.  POQUIZ  v.  DEPARTMENT  OF  TRANSPORTATION. 
C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d 
176. 


ORDERS  953 

474  U.  S.  November  4,  1985 

No.  85-5490.  GIVENS  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  574. 

No.  85-5505.  PASCUEL-SoLER  v.  UNITED  STATES.  C.  A. 
llth  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  173. 

No.  85-5507.  KOTVAS  u  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  152. 

No.  85-5515.  BRYANT  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1164. 

No.  85-5537.  BRAKEFIELD  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  908. 

No.  85-5549.  LAMB  u  UNITED  STATES.  C.  A.  9th  Cir.  Cer- 
tiorari denied.  Reported  below:  772  F.  2d  914. 

No.  85-5582.  WALKER  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  85-5597.  VANOVER  v.  KENTUCKY.  Sup.  Ct.  Ky.  Certio- 
rari denied.  Reported  below:  689  S.  W.  2d  11. 

No.  83-1250.  KEWANEE  OIL  Co.  v.  HOLMES,  EXECUTRIX  OF 
THE  ESTATE  OF  HOLMES,  ET  AL.  Sup.  Ct.  Kan.  Certiorari 
denied.  JUSTICE  POWELL  and  JUSTICE  O'CONNOR  took  no  part 
in  the  consideration  or  decision  of  this  petition.  Reported  below: 
233  Kan.  544,  664  P.  2d  1335. 

No.  84-1731.  LORAIN  JOURNAL  Co.  ET  AL.  u  MILKOVICH. 
Sup.  Ct.  Ohio.  Certiorari  denied.  Reported  below:  15  Ohio 
St.  3d  292,  473  N.  E.  2d  1191. 

JUSTICE  BRENNAN,  with  whom  JUSTICE  MARSHALL  joins, 
dissenting. 

Error  and  mis  statement  are  inevitable  in  any  scheme  of  truly 
free  expression  and  debate.  Because  punishment  of  error  may  in- 
duce a  cautious  and  restrained  exercise  of  the  freedoms  of  speech 
and  press,  the  fruitful  exercise  of  these  essential  freedoms  re- 
quires a  degree  of  "breathing  space."  NAACP  v.  Button,  371 
U.  S.  415,  433  (1963).  Accordingly,  "we  protect  some  falsehood 
in  order  to  protect  speech  that  matters."  Gertz  v.  Robert  Welch, 
Inc.,  418  U.  S.  323,  341  (1974);  see  also  St.  Amant  v.  Thompson, 
390  U.  S.  727,  732  (1968).  The  New  York  Times  actual  malice 


954  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

standard  defines  the  level  of  constitutional  protection  appropriate 
in  the  context  of  defamation  of  a  public  official.  It  rests  on  our 
"profound  national  commitment  to  the  principle  that  debate  on 
public  issues  should  be  uninhibited,  robust,  and  wide-open."  New 
York  Times  Co.  v.  Sullivan,  376  U.  S.  254,  270  (1964).  In  Curtis 
Publishing  Co.  v.  Butts,  388  U.  S.  130  (1967),  the  New  York 
Times  standard  was  extended  to  statements  criticizing  "public  fig- 
ures" because  we  recognized  that  "'public  figures,'  like  'public  offi- 
cials,' often  play  an  influential  role  in  ordering  society"  and  that 
therefore  "[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.'"  388 
U.  S.,  at  164  (Warren,  C.  J.,  concurring  in  result).  In  Gertz  v. 
Robert  Welch,  Inc.,  supra,  we  limited  the  applicability  of  the  New 
York  Times  standard  by  holding  that  "so  long  as  they  do  not  im- 
pose liability  without  fault,  the  States  may  define  for  themselves 
the  appropriate  standard  of  liability  for  a  publisher  or  broadcaster 
of  defamatory  falsehood  injurious  to  a  private  individual."  418 
U.  S.,  at  347  (footnote  omitted). 

In  this  case,  the  Ohio  Supreme  Court  found  Gertz  rather  than 
New  York  Times  applicable  to  respondent  Milkovich's  libel  suit 
against  petitioners.     Ostensibly,  then,  the  issue  presented  in  this 
petition  is  simply  the  narrow  one  whether  petitioners  will   be 
required  to  pay  damages  upon  a  showing  of  negligence  or  actual 
malice.      However,  by  allowing  damages  to  be  awarded  upon  a 
showing  of  negligence,  thereby  diminishing  the  "breathing  space" 
allowed  for  free  expression  in  the  New  York  Times  case,  the  deci- 
sion in  Gertz  exacerbated  the  likelihood  of  self-censorship  with  re- 
spect to  reports  concerning  "private  individuals."     See  418  U.  S., 
at  365-368  (BRENNAN,  J.,  dissenting).      Consequently,  the  rules 
we  adopt  to  determine  an  individual's  status  as  "public"  or  "pri- 
vate" powerfully  affect  the  manner  in  which  the  press  decides 
what  to  publish  and,  more  importantly,  what  not  to  publish.      In 
finding  New  York  Times  inapplicable,  the  Ohio  Supreme  Court 
read  the  "public  official"  and  "public  figure"  doctrines  in  an  ex- 
ceptionally narrow  way  that  is  sure  to  restrict  expression  by  the 
press  in  Ohio.      Its  decision  is  especially  unfortunate  in  that  it 
most  affects  reporting  by  local  papers  about  the  local  controver- 
sies that  constitute  their  primary  content.     Moreover,  it  is  these 
local  papers  that  are  most  coerced  by  the  threat  of  libel  damages 


ORDERS  955 

953  BRENNAN,  J.,  dissenting 

since  they  can  least  afford  the  expense  of  damages  awards.  I 
therefore  dissent  and  would  grant  certiorari  in  order  to  review 
this  important  constitutional  question. 


On  February  9,  1974,  a  melee  occurred  at  a  high  school  wres- 
tling match  between  Maple  Heights  and  Mentor  High  Schools; 
several  wrestlers  were  injured,  four  of  them  requiring  treat- 
ment at  a  hospital.  The  Ohio  High  School  Athletic  Association 
(OHSAA)  conducted  a  hearing  into  the  occurrence  and  censured 
Michael  Milkovich,  the  Maple  Heights  coach  and  a  teacher  at  the 
high  school,  for  his  conduct  in  encouraging  the  brawl.  In  addi- 
tion, the  OHSAA  placed  the  Maple  Heights  team  on  probation  for 
the  school  year  and  declared  it  ineligible  to  compete  in  the  state 
wrestling  tournament.  Ted  Diadiun,  a  sports  columnist  for  the 
News-Herald  of  Willoughby,  Ohio,  attended  and  reported  on  both 
the  match  and  the  hearing. 

A  group  of  parents  and  wrestlers  subsequently  filed  suit  in 
Franklin  County  Common  Pleas  Court,  alleging  that  the  OHSAA 
had  denied  the  team  due  process  and  seeking  to  reverse  the  dec- 
laration of  ineligibility.  Milkovich,  though  not  a  party  to  this  law- 
suit, appeared  as  a  witness  for  the  plaintiffs.  On  January  7,  1975, 
the  court  held  that  the  wrestling  team  had  been  denied  due  proc- 
ess and  enjoined  the  team's  suspension. 

The  next  day,  Diadiun  wrote  another  column  entitled  "Maple 
beat  the  law  with  the  'big  lie.'"  Diadiun,  who  had  not  attended 
the  court  hearing,  based  the  story  on  a  description  of  the  judicial 
proceedings  given  him  by  an  OHSAA  Commissioner  and  on  his 
own  recollection  of  the  wrestling  match  and  ensuing  OHSAA  hear- 
ing. After  reporting  the  result  of  the  lawsuit,  the  column  stated 
"[b]ut  there  is  something  much  more  important  involved  here  than 
whether  Maple  was  denied  due  process  by  the  OHSAA": 

"When  a  person  takes  on  a  job  in  a  school,  whether  it  be  as 
a  teacher,  coach,  administrator  or  even  maintenance  worker, 
it  is  well  to  remember  that  his  primary  job  is  that  of  educator. 

"There  is  scarcely  a  person  concerned  with  school  who 
doesn't  leave  his  mark  in  some  way  on  the  young  people  who 
pass  his  way — many  are  the  lessons  taken  away  from  school 
by  students  which  weren't  learned  from  a  lesson  plan  or  out  of 
a  book.  They  come  from  personal  experiences  with  and  ob- 


956  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

servations  of  their  superiors  and  peers,  from  watching  actions 
and  reactions. 

"Such  a  lesson  was  learned  (or  relearned)  yesterday  by 
the  student  body  of  Maple  Heights  High  School,  and  by  any- 
one who  attended  the  Maple-Mentor  wrestling  meet  of  last 
Feb.  8. 

"A  lesson  which,  sadly,  in  view  of  the  events  of  the  past 
year,  is  well  they  learned  early. 

"It  is  simply  this:  If  you  get  in  a  jam,  lie  your  way  out." 

Diadiun  stated  that  Milkovich  and  others  had  "misrepresented" 
the  occurrences  at  the  OHSAA  hearing  but  that  Milkovich's 
testimony  "had  enough  contradictions  and  obvious  untruths  so 
that  the  six  [OHSAA]  board  members  were  able  to  see  through 
it."  Diadiun  then  asserted  that  by  the  time  the  court  hearing  was 
held,  Milkovich  and  a  fellow  witness  "apparently  had  their  version 
of  the  incident  polished  and  reconstructed,  and  the  judge  appar- 
ently believed  them."  Diadiun  opined  that  anyone  who  had  at- 
tended the  match  "knows  in  his  heart  that  Milkovich  .  .  .  lied  at 
the  hearing  after  .  .  .  having  given  his  solemn  oath  to  tell  the 
truth.  But  [he]  got  away  with  it."  The  column  concluded: 

"Is  that  the  kind  of  lesson  we  want  our  young  people  learn- 
ing from  their  high  school  administrators  and  coaches? 
"I  think  not." 

Milkovich  filed  a  libel  action  in  state  court  against  Diadiun,  the 
News-Herald,  and  the  latter's  parent,  the  Lorain  Journal  Com- 
pany (petitioners).     The  court  denied  petitioners'  motion  for  sum- 
mary judgment,  but  held  that  Milkovich  was  a  public  figure  and, 
as  such,  was  required  to  meet  the  standards  established  in  New 
York  Times.     After  five  days  of  trial,  at  the  close  of  Milkovich's 
case,  petitioners  moved  for  a  directed  verdict.     The  court  granted 
this  motion,  finding  that  Milkovich's  evidence  failed  to  establish 
actual  malice  as  a  matter  of  law.     The  Ohio  Court  of  Appeals  re- 
versed and  remanded.     Milkovich  v.  Lorain  Journal  Co.,  65  Ohio 
App.  2d  143,  416  N.  E.  2d  662  (1979).     It  noted  that  the  Common 
Pleas  Court  had  accepted  Milkovich's  testimony,  and  ruled  that 
this  alone  constituted  sufficient  evidence  of  actual  malice  to  sur- 
vive a  motion  for  a  directed  verdict.      The  Ohio  Supreme  Court 
dismissed  the  appeal  as  raising  no  substantial  constitutional  ques- 
tion.    This  Court  denied  certiorari;  I  dissented.     Lorain  Journal 
Co.  v.  Milkovich,  449  U.  S.  966  (1980). 


ORDERS  957 

953  BRENNAN,  J.,  dissenting 

On  remand  and  before  a  new  judge  in  the  Common  Pleas  Court, 
petitioners  filed  a  second  motion  for  summary  judgment.  The 
court  reaffirmed  the  earlier  holding  that  Milkovich  was  a  public 
figure  for  purposes  of  the  New  York  Times  test  and  granted  the 
motion.  The  court  held  that  Milkovich  had  failed  to  proffer  suffi- 
cient evidence  for  a  jury  to  conclude  that  Diadiun's  column  was 
published  with  actual  malice.  Alternatively,  the  court  found  that 
the  column  constituted  a  privileged  expression  of  opinion.  This 
time  the  Ohio  Court  of  Appeals  affirmed,  holding  that  the  law 
of  the  case  did  not  bar  a  second  motion  for  summary  judgment  and 
agreeing  with  both  of  the  trial  court's  particular  holdings. 

The  Ohio  Supreme  Court  reversed.  Milkovich  v.  News- 
Herald,  15  Ohio  St.  3d  292,  473  N.  E.  2d  1191  (1984).  Concluding 
"upon  a  careful  review  of  the  record"  that  Milkovich  had  not 
waived  the  right  to  challenge  the  earlier  determination  of  his 
status  as  a  public  figure,  the  court  held  that  Milkovich  was  neither 
a  "public  official"  nor  a  "public  figure,"  and  that  the  contents 
of  the  challenged  article  were  facts  which,  if  false,  are  not  pro- 
tected by  the  First  Amendment.  Id.,  at  294-297,  473  N.  E.  2d, 
at  1193-1196.  This  petition  followed. 

II 
A 

In  New  York  Times,  we  had  no  occasion  "to  determine  how  far 
down  into  the  lower  ranks  of  government  employees  the  'public 
official'  designation  would  extend  .  .  .  ."  376  U.  S.,  at  283, 
n.  23.  That  question  was  addressed  two  Terms  later  in  Rosen- 
blatt v.  Baer,  383  U.  S.  75  (1966).  Consistent  with  the  premise  of 
New  York  Times  that  "[c]riticism  of  those  responsible  for  govern- 
ment operations  must  be  free,  lest  criticism  of  government  itself 
be  penalized,"  the  Court  in  Rosenblatt  held  that  "[i]t  is  clear  .  .  . 
that  the  'public  official'  designation  applies  at  the  very  least  to 
those  among  the  hierarchy  of  government  employees  who  have,  or 
appear  to  the  public  to  have,  substantial  responsibility  for  or  con- 
trol over  the  conduct  of  government  affairs."  383  U.  S.,  at  85. 
We  recognized  there,  however,  that  First  Amendment  protection 
cannot  turn  on  formalistic  tests  of  how  "high"  up  the  ladder  a 
particular  government  employee  stands.  Rather,  we  determined, 
the  focus  must  be  on  the  nature  of  the  public  employee's  function 
and  the  public's  particular  concern  with  his  work.  Accordingly, 
we  held: 


958  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

"Where  a  position  in  government  has  such  apparent  impor- 
tance that  the  public  has  an  independent  interest  in  the  quali- 
fications and  performance  of  the  person  who  holds  it,  beyond 
the  general  public  interest  in  the  qualifications  and  perform- 
ance of  all  government  employees,  .  .  .  the  New  York  Times 
malice  standards  apply."  Id.,  at  86  (emphasis  added). 

In  Rosenblatt  itself,  we  found  this  standard  satisfied  with  respect 
to  Baer,  a  supervisor  of  a  county  ski  resort  employed  by  and 
responsible  to  county  commissioners. 

The  Ohio  court  apparently  read  the  language  in  Rosenblatt 
referring  to  government  employees  having  "substantial  respon- 
sibility for  or  control  over  the  conduct  of  government  affairs" 
as  restricting  the  public  official  designation  to  officials  who  set 
governmental  policy.  This  interpretation  led  it  to  conclude  that 
finding  a  public  employee  like  Milkovich  to  be  a  "public  official"  for 
purposes  of  defamation  law  "would  unduly  exaggerate  the  'public 
official'  designation  beyond  its  original  intendment."  15  Ohio  St. 
3d,  at  297,  473  N.  E.  2d,  at  1195-1196. 

The  Ohio  court  has  seriously  misapprehended  our  decision  in 
Rosenblatt.  Indeed,  the  status  of  a  public  school  teacher  as  a 
"public  official"  for  purposes  of  applying  the  New  York  Times  rule 
follows  a  fortiori  from  the  reasoning  of  the  Court  in  Rosenblatt. 
As  this  Court  noted  in  holding  that  the  Equal  Protection  Clause 
does  not  bar  a  State  from  excluding  aliens  from  teaching  positions 
in  the  public  schools,  "public  school  teachers  may  be  regarded  as 
performing  a  task  'that  go[es]  to  the  heart  of  representative  gov- 
ernment.'" Ambach  v.  Norwich,  441  U.  S.  68,  75-76  (1979) 
(quoting  Sugarman  v.  Dougall,  413  U.  S.  634,  647  (1973)).  We 
have  repeatedly  recognized  public  schools  as  the  Nation's  most 
important  institution  "in  the  preparation  of  individuals  for  partici- 
pation as  citizens,  and  in  the  preservation  of  the  values  on  which 
our  society  rests."  441  U.  S.,  at  76-77.  See  also  San  Antonio 
Independent  School  Dist.  v.  Rodriguez,  411  U.  S.  1,  29-30  (1973); 
Wisconsin  v.  Yoder,  406  U.  S.  205,  213  (1972);  Brown  v.  Board  of 
Education,  347  U.  S.  483,  493  (1954).  The  public  school  teacher 
is  unquestionably  the  central  figure  in  this  institution: 

"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- 


ORDERS  959 

953  BRENNAN,  J.,  dissenting 

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  course  material  is 
communicated  to  students.  They  are  responsible  for  present- 
ing 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  per- 
sonal qualities  a  teacher  brings  to  bear  in  achieving  these 
goals.  Further,  a  teacher  serves  as  a  role  model  for  his  stu- 
dents, 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  gov- 
ernment, the  political  process,  and  a  citizen's  social  respon- 
sibilities. This  influence  is  crucial  to  the  continued  good 
health  of  a  democracy."  Ambach,  supra,  at  78—79  (footnotes 
omitted).1 

"[T]eachers  .  .  .  possess  a  high  degree  of  responsibility  and  dis- 
cretion in  the  fulfillment  of  a  basic  governmental  obligation," 
Bernal  v.  Fainter,  467  U.  S.  216,  220  (1984),2  and  it  is  self- 
evident  that  "the  public  has  an  independent  interest  in  the  quali- 
fications and  performance"  of  those  who  teach  in  the  public  high 
schools  that  goes  "beyond  the  general  public  interest  in  the  quali- 
fications and  performance  of  all  government  employees,"  Rosen- 
blatt, supra,  at  86. 8  Public  school  teachers  thus  fall  squarely 


JUSTICE  BLACKMUN'S  dissent  in  Ambach,  which  I  joined,  expressed  identi- 
cal sentiments.  See  441  U.  S.,  at  88  ("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  importation  of 
our  society's  values"). 

2  See  also  Board  of  Education  v.  Pico,  457  U.  S.  853,  864  (1982)  (plurality 
opinion);  Cabell  v.  Chavez-Salido,  454  U.  S.  432,  457,  n.  8  (1982);  Zykan  v. 
Warsaw  Community  School  Corporation,  631  F.  2d  1300,  1307  (CA7  1980). 

8  This  perfectly  obvious  conclusion  has  led  at  least  one  other  court  to  reach  a 
conclusion  directly  contrary  to  that  of  the  Ohio  Supreme  Court.  See  John- 
ston v.  Corinthian  Television  Corp.,  583  P.  2d  1101  (Okla.  1978)  (grade  school 
wrestling  coach  is  "public  official").  On  the  other  hand,  the  state  courts  are 
in  general  disarray  over  the  application  of  the  New  York  Times  standard  to 
various  other  types  of  public  employees.  See  Annot.,  Libel  and  Slander: 
Who  is  a  Public  Official  or  Otherwise  Within  the  Federal  Constitutional  Rule 


960  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

within  the  rationale  of  New  York  Times  and  Rosenblatt.  More- 
over, Diadiun's  column  challenged  Milkovich's  qualifications  to 
teach  young  students  in  light  of  his  conduct  in  connection  with  the 
Maple  Heights/Mentor  High  School  incident.  It  is  precisely  this 
type  of  discussion  that  New  York  Times  and  its  progeny  seek  to 
protect. 

B 

The  Ohio  Supreme  Court  also  held  that  Milkovich  was  not  a 
"public  figure"  within  the  meaning  of  our  decisions.     It  concluded 
that  this  Court  has  "retreated"  from  prior  holdings  and  "rede- 
fined" public  figure  status  to  include  only  two  narrowly  defined 
classes  of  individuals.     15  Ohio  St.  3d,  at  294-297,  473  N.  E.  2d, 
at  1193-1195.     Milkovich  was  found  to  fit  in  neither  of  these  cate- 
gories.    Ibid.     Here  too,  the  state  court  misreads  our  decisions. 
Our  first  encounter  with  the  application  of  the  New  York  Times 
test  to  nongovernment  officials  came  in  Curtis  Publishing  Co.  v. 
Butts,  388  U.  S.  130  (1967).     Butts  actually  decided  two  separate 
cases  that  were  consolidated  for  review.     In  the  first  case,  Butts, 
the  athletic  director  at  the  University  of  Georgia4  and  "a  well- 
known  and  respected  figure  in  coaching  ranks,"  id.,  at  136,  filed  a 
libel  action  after  the  Saturday  Evening  Post  published  an  article 
accusing  Butts  of  having  conspired  to  fix  a  football  game  with  the 
University  of  Alabama.      In  the  second  case,  Walker,  a  retired 
career  Army  officer  who  was  prominent  in  the  local  community, 
sued  the  Associated  Press  after  it  filed  a  news  dispatch  giving  an 
eyewitness  account  of  a  riot  that  erupted  at  the  University  of  Mis- 
sissippi when  federal  officers  tried  to  enforce  a  court  decree  order- 
ing the  enrollment  of  James  Meredith,  a  black,  as  a  student  at  the 
University.     The  report  stated  that  Walker  had  taken  command 
of  the  violent  crowd  and  personally  had  led  a  charge  against  fed- 
eral marshals.     Although  the  Court  in  Butts  failed  to  reach  a  con- 
sensus on  the  standard  of  liability  in  suits  brought  by  "public 
figures,"  seven  Members  of  the  Court  agreed  that  both  Butts  and 


Requiring  Public  Officials  to  Show  Actual  Malice,  19  A.  L.  R.  3d  1361  (1968 
and  1985  Supp.).  I  would  also  grant  certiorari  to  clarify  the  law  in  this 
regard. 

4  Although  the  University  of  Georgia  was  a  state  university,  Butts  was  em- 
ployed by  the  Georgia  Athletic  Association,  a  private  corporation,  rather  than 
by  the  State  itself.  His  case  thus  did  not  raise  the  issue  whether  he  was  a 
"public  official"  for  purposes  of  the  New  York  Times  test.  See  Butts,  388 
U.  S.,  at  135,  and  n.  2. 


ORDERS  961 

953  BRENNAN,  J.,  dissenting 

Walker  occupied  this   status.5      Justice  Harlan  explained  in  his 
plurality  opinion: 

"[B]oth  Butts  and  Walker  commanded  a  substantial  amount  of 
independent  public  interest  at  the  time  of  the  publications; 
both,  in  our  opinion,  would  have  been  labeled  'public  figures' 
under  ordinary  tort  rules.  .  .  .  Butts  may  have  attained  that 
status  by  position  alone  and  Walker  by  his  purposeful  activity 
amounting  to  a  thrusting  of  his  personality  into  the  'vortex'  of 
an  important  public  controversy,  but  both  commanded  suffi- 
cient continuing  public  interest  and  had  sufficient  access  to 
the  means  of  counterargument  to  be  able  'to  expose  through 
discussion  the  falsehood  and  fallacies'  of  the  defamatory  state- 
ments." Id.,  at  154-155. 

As  Justice  Harlan's  opinion  indicates,  the  two  cases  considered 
in  Butts  exemplify  alternative  ways  in  which  an  individual  may  be- 
come a  "public  figure."6  Our  subsequent  cases  have  elaborated 
on  this  framework;  we  have  held  that  "[i]n  some  instances  an  indi- 
vidual may  achieve  such  pervasive  fame  or  notoriety  that  he  be- 
comes a  public  figure  for  all  purposes  and  in  all  contexts,"  while, 
"[m]ore  commonly,  an  individual  voluntarily  injects  himself  or  is 
drawn  into  a  particular  controversy  and  thereby  becomes  a  public 
figure  for  a  limited  range  of  issues."  Gertz,  418  U.  S.,  at  351;  see 
also,  Time,  Inc.  v.  Firestone,  424  U.  S.  448,  453  (1976);  Hutchin- 
son  v.  Proxmire,  443  U.  S.  Ill,  134  (1979);  Wolston  v.  Reader's 


5  Justices  Black  and  Douglas  found  it  unnecessary  to  reach  the  issue  consist- 
ent with  their  views  that  the  First  Amendment  completely  prohibits  damages 
for  libel.     Id.,  at  170  (Black,  J.,  joined  by  Douglas,  J.,  concurring  in  result  in 
Walker's  case  and  dissenting  in  Butts'  case);  see  also  New  York  Times,  376 
U.  S.,  at  293  (Black,  J.,  concurring). 

6  Like  Butts  and  Walker,  Milkovich  would  be  labeled  a  "public  figure"  under 
ordinary  tort  rules.     See  W.  Prosser,  Law  of  Torts  §  118,  pp.  823-824  (4th  ed. 
1971);  cf.  Stryker  v.  Republic  Pictures  Corp.,  108  Cal.  App.  2d  191,  238  P.  2d 
670  (1951);  Molony  v.  Boy  Comics  Publishers,  277  App.  Div.  166,  98  N.  Y.  S. 
2d  119  (1950);  Wilson  v.  Brown,  189  Misc.  79,  73  N.  Y.  S.  2d  587  (1947).     In- 
deed, since  in  my  opinion  the  scope  of  the  constitutional  privilege  exceeds  that 
of  the  privilege  recognized  at  common  law  for  reports  about  public  figures, 
this  fact  alone  should  be  sufficient  to  conclude  that  Milkovich  is  a  "public  fig- 
ure."     However,   our  subsequent  decisions  have  treated  the  constitutional 
privilege  without  reference  to  the  common-law  privilege,  e.  g.,  Time,  Inc   v. 
Firestone,  424  U.  S.  448,  453  (1976);  Wolston  v.  Reader's  Digest  Assn.,  Inc., 
443  U.  S.  157,  165-169  (1979),  and  I  therefore  discuss  Milkovich's  status  under 
our  decisions  without  reference  to  the  common  law. 


962  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

Digest  Assn.,  Inc.,  443  U.  S.  157,  164  (1979).  However,  the  ul- 
timate touchstone  is  always  whether  an  individual  has  "assumed 
[a]  rol[e]  of  especial  prominence  in  the  affairs  of  society  [that] 
invite[s]  attention  and  comment."  Gertz,  supra,  at  345.  These 
categories  are  merely  descriptive;  they  are  not,  as  the  Ohio 
Supreme  Court  assumed,  rigid,  technical  standards. 

Petitioners  spend  most  of  their  efforts  attempting  to  analogize 
their  case  to  that  of  Butts,  and,  indeed,  the  analogy  is  a  strong 
one.7  A  better  argument  can  be  made,  however,  that  Milkovich 
is  a  "public  figure,"  like  Walker,  for  purposes  of  this  particular 
public  controversy.  Under  this  prong  of  "public  figure"  analysis, 
an  individual  who  "voluntarily  injects  himself  or  is  drawn  into  a 
particular  public  controversy"  becomes  a  public  figure  with  re- 
spect to  public  discussion  of  that  controversy.  Gertz,  supra,  at 
351.  Walker,  for  example,  was  deemed  to  have  "thrus[t]  his  per- 
sonality into  the  'vortex'  of  an  important  public  controversy"  by 
allegedly  encouraging  a  riot.  Milkovich's  conduct  was  remarkably 
similar  to  Walker's— the  allegedly  libelous  publication  was  in- 
spired by  a  brawl  that  resulted  in  injuries  to  a  number  of  students; 


7  Like  Butts,  Milkovich  is  "a  well-known  and  respected  figure  in  coaching 
ranks."     Indeed,  he  is  unquestionably  one  of  America's  outstanding  coaches. 
No  other  wrestling  coach  in  America  has  achieved  a  record  even  close  to  his,  a 
fact  that  has  been  recognized  by  numerous  organizations.      He  has  received 
the  National  Coach  of  the  Year  Award,  the  National  Council  of  High  School 
Coaches  Award,  the  Scholastic  Wrestling  News  National  Achievement  Award, 
a  United  States  Wrestling  Federation  Award,  and  numerous  other  gifts,  proc- 
lamations, and  awards.     He  was  inducted  into  the  National  Helms  Hall  of 
Fame  and  the  Ohio  Coaches  Hall  of  Fame  and  received  the  Kent  State  Uni- 
versity Hall  of  Fame  Award.     He  has  been  cited  in  the  Congressional  Record 
and  in  the  records  of  both  the  Ohio  Senate  and  House  of  Representatives.     He 
was  similarly  honored  by  the  city  of  Cleveland  and  by  his  own  city  of  Maple 
Heights,  which  celebrated  "Mike  Milkovich  Day."     He  is  a  much  sought  after 
speaker  by  coaches7  associations  throughout  the  United  States  and  conducts 
wrestling  clinics  across  the  country  under  the  aegis  of  various  state  and 
coaches'  organizations.     See  Milkovich  v.  News-Herald,  15  Ohio  St.  3d  292, 
296,  and  n.  1,  473  N.  E.  2d  1191,  1194,  and  n.  1  (1984).     Nor  will  it  do  simply  to 
dismiss  Milkovich's  achievements  as  merely  those  of  a  high  school  coach.     To 
be  sure,  as  a  general  matter  collegiate  athletics  obtains  wider  exposure  than 
high  school  athletics.     But  with  the  exception  of  a  few  rather  flamboyant  fig- 
ures who  gain  national  exposure,  most  coaches— like  Butts— are  unknown  out- 
side sports'  circles  and  the  local  community.      Milkovich  is  probably  as  well 
known  both  locally  and  in  the  wrestling  community  as  was  Butts  in  his  respec- 
tive circles. 


ORDERS  963 

953  BRENNAN,  J.,  dissenting 

Milkovich  was  alleged  to  have  incited  the  fracas  by  egging  on  the 
crowd.  While  this  fight  did  not  compare  in  size  or  ferocity  to  the 
riots  in  which  Walker  participated  at  the  University  of  Missis- 
sippi, it  was  a  public  controversy  of  concern  to  residents  of  the 
local  community,  as  important  to  them  as  larger  events  are  to  the 
Nation.  Significantly,  it  was  only  in  this  community  that  the 
challenged  article  was  circulated.  See  Rosenblatt  v.  Baer,  383 
U.  S.,  at  83  ("The  subject  matter  may  have  been  only  of  local  in- 
terest, but  at  least  here,  where  publication  was  addressed  pri- 
marily to  the  interested  community,  that  fact  is  constitutionally 
irrelevant").  The  conclusion  that  Milkovich  was  a  limited  purpose 
public  figure  therefore  seems  quite  straightforward. 

The  Ohio  Supreme  Court  nevertheless  concluded  that  Milkovich 
could  not  be  classed  a  "public  figure"  because  he  "never  thrust 
himself  to  the  forefront  of  [the]  controversy  in  order  to  influence 
its  decision."  15  Ohio  St.  3d,  at  297,  473  N.  E.  2d,  at  1195. 
However,  the  New  York  Times  standard  is  not  limited  to  discus- 
sion of  individuals  who  deliberately  seek  to  involve  themselves  in 
public  issues  to  influence  their  outcome.  Our  decisions  in  this 
area  rest  at  bottom  on  the  need  to  protect  public  discussion  about 
matters  of  legitimate  public  concern.  See  Dun  &  Bradstreet,  Inc. 
v.  Greenmoss  Builders,  Inc.,  472  U.  S.  749,  755-761  (1985)  (opin- 
ion of  POWELL,  J.,  joined  by  REHNQUIST  and  O'CONNOR,  JJ.);  id., 
at  763-764  (opinion  of  BURGER,  C.  J.);  id.,  at  777-789  (opinion  of 
BRENNAN,  J.,  joined  by  MARSHALL,  BLACKMUN,  and  STEVENS, 
JJ.).  Although  not  every  person  connected  to  a  public  contro- 
versy is  a  "public  figure,"  Gertz,  supra,  the  New  York  Times 
protections  do,  and  necessarily  must,  encompass  the  major  figures 
around  which  a  controversy  rages.  See  Wolston  v.  Reader's  Di- 
gest Assn.,  supra,  at  167;  see  also  Gertz,  supra,  at  351  (public 
figure  is  one  who  "voluntarily  injects  himself  or  is  drawn  into  a 
particular  public  controversy"  (emphasis  added)).8 


8  In  Wolston,  we  held  that  although  an  individual's  failure  to  appear  before  a 
grand  jury  investigating  Soviet  espionage  was  newsworthy,  "[a]  private  indi- 
vidual is  not  automatically  transformed  into  a  public  figure  just  by  becoming 
involved  in  or  associated  with  a  matter  that  attracts  public  attention."  443 
U.  S.,  at  167.  Rather,  we  emphasized,  "a  court  must  focus  on  the  'nature 
and  extent  of  an  individual's  participation  in  the  particular  controversy  giving 
rise  to  the  defamation."'  Ibid,  (quoting  Gertz,  418  U.  S.,  at  352).  Because 
it  was  "clear  that  [Wolston]  played  only  a  minor  role  in  whatever  public  con- 
troversy there  may  have  been  concerning  the  investigation  of  Soviet  espio- 


964  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

We  only  recently  acknowledged  the  "compelling"  nature  of  the 
local  interest  in  preventing  violence  and  preserving  discipline 
in  the  Nation's  high  schools.  New  Jersey  v.  T.  L.  O.,  469  U.  S. 
325,  350  (1985).  A  large  fight  between  the  students  of  two  rival 
schools  quite  legitimately  raises  serious  concerns  for  the  entire 
community,  particularly  when,  as  here,  it  results  in  injury  to 
students.9  The  present  controversy  centered  primarily  around 
the  conduct  of  one  man— Milkovich — in  encouraging  the  fight;  that 
conduct  allegedly  resulted  in  an  OHSAA  hearing,  his  censure  by 
that  association,  and  the  disqualification  of  his  team  from  eligibil- 
ity in  the  state  wrestling  tournament.10  To  say  that  Milkovich 
nevertheless  was  not  a  public  figure  for  purposes  of  discussion 
about  the  controversy  is  simply  nonsense. 

Ill 

The  "profound  national  commitment  to  the  principle  that  debate 
on  public  issues  should  be  uninhibited,  robust,  and  wide-open," 
New  York  Times,  376  U.  S.,  at  270,  applies  as  much  to  debate  in 
the  local  media  about  local  issues  as  it  does  to  debate  in  the  na- 


nage,"  he  was  held  not  to  be  a  public  figure.     443  U.  S. ,  at  167.     Milkovich, 
on  the  other  hand,  was  clearly  the  major  player  in  this  public  controversy. 

9  At  one  point  in  its  opinion,  the  Ohio  Supreme  Court  cited  our  holding  in 
Time,  Inc.  v.  Firestone,  424  U.  S.  448  (1976),  that  Mrs.  Firestone's  divorce 
was  "not  the  sort  of  'public  controversy'  envisioned  in  Gertz."     15  Ohio  St.  3d, 
at  296,  473  N.  E.  2d,  at  1194.     The  nature  of  the  controversy  here  is  com- 
pletely different.     This  was  not  a  private  matter  of  public  concern  merely  to 
gossips.      Rather,  the  controversy  in  which  Milkovich  was  involved  was  of 
immediate  importance  to  parents  and  others  in  the  community. 

10  These  facts  distinguish  this  case  from  Hutchinson  v.  Proxmire,  443  U.  S. 
Ill  (1979).     In  Hutchinson,  a  hitherto  unknown  research  scientist  was  alleg- 
edly libeled  when   Senator  Proxmire   awarded   his   Government   sponsor   a 
"Golden  Fleece  of  the  Month  Award"  to  publicize  what  the  Senator  perceived 
to  be  the  most  egregious  examples  of  wasteful  Government  spending.     Prox- 
mire argued  that  Hutchinson  became  a  limited  purpose  public  figure  as  a  re- 
sult of  the  publicity  surrounding  his  being  awarded  a  "Golden  Fleece."     We 
rejected  this  argument  on  the  ground  that  "those  charged  with  defamation 
cannot,  by  their  own  conduct,  create  their  own  defense  by  making  the  claim- 
ant a  public  figure."     Id.,  at  135.      The  controversy  surrounding  the  fight 
at  the  high  school,  on  the  other  hand,  was  not  created  by  Diadiun's  column. 
The  event  itself  created  a  stir,  leading  to  a  hearing,  censure  of  Milkovich,  and 
disqualification  of  his  team.     Diadiun's  column  merely  reported  his  view,  as 
an  observer  of  the  initial  fight,  that  such  a  man  ought  not  be  allowed  to  teach 
young  students. 


ORDERS  965 

474  U.  S.  November  4,  1985 

tional  media  over  national  issues.  This  Court's  obligation  to  pre- 
serve the  precious  freedoms  established  in  the  First  Amendment 
is  every  bit  as  strong  in  the  context  of  a  local  paper's  report  of 
an  incident  at  a  local  high  school  as  it  is  in  the  context  of  an 
advertisment  in  one  of  the  Nation's  largest  newspapers  supporting 
the  struggle  for  racial  freedom  in  the  South.  Because  the  deci- 
sion below  will  stifle  public  debate  about  important  local  issues, 
I  respectfully  dissent. 

No.  84-1955.  PERNSLEY  ET  AL.  v.  HARRIS  ET  AL.  C.  A.  3d 
Cir.  Motion  of  respondents  for  leave  to  proceed  in  forma  pau- 
peris  granted.  Certiorari  denied.  JUSTICE  REHNQUIST  and 
JUSTICE  O'CONNOR  would  grant  certiorari.  Reported  below: 
755  F.  2d  338  and  758  F.  2d  83. 

CHIEF  JUSTICE  BURGER,  dissenting. 

For  the  past  nine  years,  the  prison  system  in  Philadelphia  has 
been  operating  under  the  supervision  of  the  Court  of  Common 
Pleas  of  Philadelphia  County,  following  that  court's  finding  in  1972 
that  prison  conditions  violated  both  the  Pennsylvania  Constitution 
and  the  Eighth  Amendment  of  the  United  States  Constitution. 
Since  1976,  a  full-time,  court-appointed  Special  Master  has  been  in 
place  and  numerous  remedial  orders  have  been  issued,  including 
orders  requiring  the  building  of  new  prison  facilities  and  contempt 
orders  imposing  over  $500,000  in  fines  for  failure  to  comply  with 
prior  orders.  In  addition,  the  parties  have  entered  into  consent 
decrees  aimed  at  controlling  the  population  in  the  prison  system. 
Beginning  in  1984,  the  Pennsylvania  Supreme  Court  assumed  ple- 
nary jurisdiction  over  the  entire  state  proceeding. 

The  state  suit  commenced  by  the  filing  of  a  class  action  in  1971 
on  behalf  of  all  inmates  in  the  Philadelphia  prisons,  seeking  equi- 
table relief  from  alleged  unconstitutional  prison  conditions;  de- 
fendants are  officials  of  Philadelphia.  In  the  case  now  before  us, 
respondent  Harris,  an  inmate  who  admits  he  is  a  member  of  the 
same  class  represented  in  the  state  action,  brought  a  separate 
class  action  in  the  Eastern  District  of  Pennsylvania  on  behalf  of 
all  persons  confined  in  the  Philadelphia  prisons;  defendants  include 
city  and  state  officials.  The  federal  complaint  similarly  makes 
claims  like  those  in  the  state  suit,  and  asserts  that  the  Phila- 
delphia prisons  are  overcrowded,  thereby  violating  the  Eighth 
Amendment  of  the  United  States  Constitution;  it  seeks  extensive 
injunctive  relief  and  monetary  damages  under  42  U.  S.  C.  §  1983. 


966  OCTOBER  TERM,  1985 

BURGER,  C.  J.,  dissenting  474  U.  S. 

The  District  Court  dismissed  the  equitable  relief  claims  sought 
in  this  second  class  action  on  the  alternative  grounds  of  res 
judicata,  or  abstention  under  the  doctrine  of  Colorado  River 
Water  Conservation  District  v.  United  States,  424  U.  S.  800 
(1976);  it  dismissed  the  damages  claim  on  grounds  of  sovereign 
and  qualified  official  immunity.  A  divided  Court  of  Appeals  for 
the  Third  Circuit  reversed,  rejecting  each  of  the  District  Court's 
holdings.  755  F.  2d  338  (1985).  In  his  dissenting  opinion,  Judge 
Garth  agreed  that  while  Colorado  River  did  not  support  absten- 
tion, Younger  v.  Harris,  401  U.  S.  37  (1971),  mandated  it: 

"I  do  not  believe  that  Supreme  Court  teachings,  comity,  or 
reason  support  a  federal  court's  intrusion  into  a  state's  admin- 
istration of  its  prison  system  when  the  state  courts  have 
been,  and  presently  are,  exercising  supervision  over  these  in- 
stitutions and  are  doing  so  in  accordance  with  both  state  and 
federal  constitutional  requirements."  755  F.  2d,  at  347. 

Rehearing  was  denied  over  two  dissents.     758  F.  2d  83  (1985). 

Respondents  essentially  ask  the  federal  courts  to  duplicate  the 
ongoing  state-court  regulation  of  the  Philadelphia  prison  system. 
The  District  Court  recognized  that  the  substantial  and  ongoing 
state-court  proceedings  involve  an  important  state  interest, 
namely,  the  administration  of  a  prison  system.  The  Court  of  Ap- 
peals nevertheless  found  Younger  abstention  restricted  to  pending 
state  criminal  or  quasi-criminal  proceedings  initiated  by  the  State. 
Our  cases,  however,  recognize  that  "[t]he  policies  underlying 
Younger  are  fully  applicable  to  noncriminal  judicial  proceedings 
when  important  state  interests  are  involved."  Middlesex  County 
Ethics  Committee  v.  Garden  State  Bar  Assn.,  457  U.  S.  423,  432 
(1982).  See  also  Moore  v.  Sims,  442  U.  S.  415,  423  (1979)  (the 
Younger  doctrine  is  "fully  applicable  to  civil  proceedings  in  which 
important  state  interests  are  involved"). 

The  Younger  doctrine  is  rooted  in  the  concept  of  comity, 
because 

"interference  with  a  state  judicial  proceeding  prevents  the 
state  not  only  from  effectuating  its  substantive  policies,  but 
also  from  continuing  to  perform  the  separate  function  of 
providing  a  forum  competent  to  vindicate  any  constitutional 
objections  interposed  against  those  policies."  Huffman  v. 
Pursue,  Ltd.,  420  U.  S.  592,  604  (1975). 

There  is  no  question  that  the  State  is  a  party  to  the  ongoing 
state  proceedings  and  that  important  state  policies  are  implicated 


ORDERS  967 

474  U.  S.  November  4,  1985 

in  the  management  of  the  county  prison  system.  The  state  courts 
continue  to  exercise  comprehensive  jurisdiction  over  the  prison 
system's  administration  through  use  of  a  Special  Master,  by  hold- 
ing hearings,  and  by  issuing  remedial  orders  and  ordering  fines. 
Should  the  District  Court  exercise  its  equitable  powers  as  sought 
in  this  second  suit,  the  Philadelphia  prisons  may  thus  become 
subject  to  potentially  conflicting  and  contrary  determinations  as 
to  the  appropriate  remedy  for  the  alleged  unconstitutional  condi- 
tions. Although  plaintiffs  here  additionally  seek  damages,  there 
is  no  bar  to  the  assertion  of  that  claim  in  the  state  proceedings. 
So  long  as  plaintiffs  have  an  opportunity  to  raise  their  federal 
claims  in  the  state  action,  "[n]o  more  is  required  to  invoke 
Younger  abstention."  Juidice  v.  Vail,  430  U.  S.  327,  337  (1977). 
I  would  grant  the  writ  of  certiorari  and  reverse  the  Court  of 
Appeals  judgment. 

No.  84-1990.  JOHNSON  u  REX.  C.  A.  10th  Cir.  Certiorari 
denied.  Reported  below:  753  F.  2d  840. 

CHIEF  JUSTICE  BURGER,  with  whom  JUSTICE  REHNQUIST  and 
JUSTICE  O'CONNOR  join,  dissenting. 

In  this  case  the  United  States  Court  of  Appeals  for  the  Tenth 
Circuit  held  that  a  prosecutor  is  not  entitled  to  absolute  immunity 
from  liability  in  a  civil  rights  suit  brought  under  42  U.  S.  C.  §  1983 
based  upon  the  prosecutor's  presence  during  questioning  of  the 
plaintiff.  Absolute  immunity  was  denied  even  though  the  pros- 
ecutor was  present  not  as  an  investigator  but  as  a  counsel  to 
advise  on  compliance  with  Miranda  v.  Arizona,  384  U.  S.  436 
(1966). 

In  Imbler  v.  Pachtman,  424  U.  S.  409  (1976),  this  Court  estab- 
lished an  absolute  immunity  for  prosecutors  engaged  in  activities 
associated  with  the  criminal  process.  This  Court  left  open  the 
extent  to  which  investigative  activities  by  prosecutors  would  also 
come  within  the  umbrella  of  absolute  immunity.  But  the  princi- 
ple of  absolute  immunity  established  in  Imbler  was  based  on  the 
need  to  ensure  sound  decisionmaking  by  the  prosecutor  by  pro- 
tecting from  fear  of  retaliatory  suits  for  vigorous  law  enforcement. 
Here  the  prosecutor  was  acting  as  an  officer  of  the  court  in  ensur- 
ing compliance  with  the  Miranda  requirements,  and  I  would  grant 
the  petition  for  certiorari  in  order  to  define  the  applicability  of  ab- 
solute immunity  in  this  context;  surely  the  prosecutor's  action  was 
well  within  his  function  as  a  prosecutor  and  officer  of  the  court. 


968  OCTOBER  TERM,  1985 

November  4,  1985  474  U.  S. 

No.  85-3.  ATLANTA  GAS  LIGHT  Co.  v.  EQUAL  EMPLOYMENT 
OPPORTUNITY  COMMISSION.  C.  A.  llth  Cir.  Motion  of  Georgia- 
Pacific  Corp.  for  leave  to  file  a  brief  as  amicus  curiae  granted. 
Certiorari  denied.  Reported  below:  751  F.  2d  1188. 

No.  85-78.  ALASKA  v.  UNITED  STATES  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied.  JUSTICE  BLACKMUN  would  grant  certiorari. 
Reported  below:  754  F.  2d  851. 

No.  85-84.  HAGERTY  u  KELLER,  EXECUTOR  OF  THE  SUCCES- 
SION OF  CLEMENT,  ET  AL.  C.  A.  5th  Cir.  Certiorari  denied. 
Reported  below:  749  F.  2d  217, 

CHIEF  JUSTICE  BURGER. 

I  agree  that  we  should  deny  the  petition  for  certiorari,  but  I 
would  award  respondents  costs  and  fees  under  Rule  49.2.  The 
time  has  come — indeed  it  is  long  past— when  the  Court  should  en- 
force Rule  49.2  or  strike  it.  This  petition,  like  much  which  pre- 
ceded it,  is  utterly  frivolous.  On  this  record  I  can  only  conclude 
that  petitioner  and  his  counsel  have  filed  actions  designed  to  delay 
the  orderly  settlement  of  the  estate  of  respondent  Keller's  dece- 
dent. This  misuse  of  judicial  processes  should  subject  the  attor- 
ney who  filed  the  petition  here  to  the  sanction  of  Rule  49. 2. l 

On  July  14,  1978,  petitioner  brought  suit  in  Louisiana  state 
court  to  contest  the  probate  of  the  will  of  his  aunt,  Laura  Clem- 
ent. Petitioner  requested  and  received  no  fewer  than  three  con- 
tinuances. The  trial  was  finally  set  for  May  12,  1980.  Three 
days  before  trial,  petitioner  requested  and  was  denied  a  fourth 
continuance. 

On  the  day  of  trial,  petitioner  appeared  before  Judge  Melvin 
Duran,  objected  to  the  proceedings,  offered  no  evidence,  and 
stood  mute.  Judge  Duran  accordingly  dismissed  the  suit  with 
prejudice.  The  intermediate  state  appellate  court  unanimously 
affirmed.  Succession  of  Clement,  402  So.  2d  702  (La.  App.  1981). 
That  court  noted  that  petitioner  had  "succeeded  in  delaying  imple- 
mentation of  Mrs.  Clement's  bequests  for  three  years,  possibly 
longer  if  this  matter  goes  to  a  higher  court."  Id.,  at  703.  The 
court  concluded  that  Judge  Duran  had  not  abused  his  discretion, 
after  granting  three  continuances,  in  refusing  to  grant  a  fourth. 


'Rule  49.2  provides:  "When  an  appeal  or  petition  for  writ  of  certiorari  is 
frivolous,  the  Court  may  award  the  appellee  or  the  respondent  appropriate 


ORDERS  969 

968  Opinion  of  BURGER,  C.  J. 

The  Louisiana  Supreme  Court  unanimously  declined  to  review  the 
case.     407  So.  2d  733  (1981). 

Petitioner  then  brought  a  42  U.  S.  C.  §  1983  action  in  the 
United  States  District  Court  for  the  Eastern  District  of  Louisiana. 
Petitioner  contended  that  the  state  trial  court,  by  refusing  his  re- 
quest for  a  fourth  continuance,  had  deprived  him  of  due  process  of 
law.  He  named  as  defendants  the  Clerk  of  the  Orleans  Parish 
Civil  District  Court,  Dan  Foley;  the  Succession  of  Laura  Clement; 
the  executor  of  the  will,  Thomas  Keller;  and  Judge  Duran.  The 
defendants,  respondents  in  this  Court,  moved  for  dismissal  of 
the  action.  The  District  Court  correctly  granted  the  motion,  con- 
cluding that  the  complaint  should  be  dismissed  for  lack  of  subject- 
matter  jurisdiction  and  for  failure  to  state  a  claim.  Petitioner 
then  took  an  appeal  to  the  United  States  Court  of  Appeals  for  the 
Fifth  Circuit. 

That  court  unanimously  affirmed,  holding  that  the  District 
Court  had  properly  dismissed  the  action  on  jurisdictional  grounds. 
749  F.  2d  217  (1984).  Petitioner's  suit  was  brought  in  the  face  of 
the  "well-settled  rule"  that  a  plaintiff  may  not  seek  reversal  of  a 
state-court  judgment  simply  by  casting  his  complaint  in  the  form 
of  a  civil  rights  action;  Supreme  Court  and  Fifth  Circuit  precedent 
"clearly  prohibited]"  the  effort  made  by  petitioner.  The  Court  of 
Appeals  also  held  that  the  District  Court  had  properly  dismissed 
petitioner's  suit  for  failure  to  state  a  claim.  The  court  explained 
that  ordinarily  it  would  not  be  inclined  to  give  this  issue  any  atten- 
tion since  the  District  Court's  judgment  in  its  entirety  could  be 
affirmed  for  lack  of  subject-matter  jurisdiction.  However,  "to 
further  demonstrate  the  frivolousness  of  the  appeal,"  the  court  ad- 
dressed this  point  as  well,  concluding  that  the  trial  court  had  prop- 
erly dismissed  the  claims  against  all  defendants  on  this  basis.2 

2  Petitioner  had  named  as  a  defendant  Dan  Foley,  the  Clerk  of  the  Orleans 
Parish  Civil  District  Court.  But  Foley  was  without  any  power  or  authority 
under  state  law  to  grant  or  deny  continuances.  Moreover,  there  was  no  alle- 
gation that  Foley  was  involved  in  any  sort  of  a  conspiracy  to  deprive  peti- 
tioner of  his  constitutional  rights.  Indeed,  the  complaint  did  not  even  allege 
any  act  or  omission  on  Foley's  part  that  caused  injury.  Petitioner  had  also 
named  the  succession  of  Laura  Clement  and  Thomas  Keller,  the  executor  of 
the  estate,  as  defendants.  But,  the  Fifth  Circuit  noted,  in  order  to  sustain  an 
action  under  §  1983,  the  plaintiff  must  prove  that  the  defendant,  acting  under 
color  of  state  law,  deprived  him  of  a  right  secured  by  the  Constitution  and 
laws  of  the  United  States.  Petitioner  had  not  alleged  that  either  the  succes- 
sion or  Keller  had  conspired  with  the  state  trial  court.  In  fact,  petitioner's 
complaint  contained  no  allegation  or  facts  concerning  either  of  these  defend- 


970  OCTOBER  TERM,  1985 

November  4,  1985  474  U.  S. 

The  court  assessed  double  costs  and  fees  against  both  petitioner 
and  his  attorney  under  Federal  Rule  of  Appellate  Procedure  38 
and  under  28  U.  S.  C.  §§  1912  and  1927;  it  held  that  petitioner  had 
imposed  an  unnecessary  burden  on  it  and  had  infringed  upon  the 
right  of  respondents  to  have  a  prompt  adjudication  of  this  dispute. 
The  court  noted,  however,  that  awarding  costs  against  petitioner 
alone  would  not  deter  his  attorney  from  bringing  similar  frivolous 
appeals  in  the  future.  The  court  therefore  remanded  to  the  Dis- 
trict Court  for  an  apportionment  of  the  amount  of  damages  be- 
tween petitioner  and  his  attorney. 

Petitioner  continued  to  protract  these  proceedings  by  seeking  a 
writ  of  certiorari  in  this  Court.  In  his  filing  to  this  Court,  how- 
ever, petitioner  did  not  attempt  to  refute  the  careful  analysis  of 
the  Court  of  Appeals.  Although  petitioner  was  clearly  confronted 
with  numerous  adverse  precedents  from  this  Court  and  from  other 
courts,  he  advanced  no  "good  faith  argument  for  an  extension, 
modification,  or  reversal  of  existing  law."  ABA  Code  of  Profes- 
sional Responsibility  DR  7-102(A)(2)  (1980). 

It  is  evident,  therefore,  that  petitioner  and  his  counsel  have 
filed  in  this  Court  a  completely  frivolous  petition  as  the  most  re- 
cent in  a  series  of  patently  unfounded  suits,  whose  effect  has  been 
to  keep  issues  involving  decedent's  will  in  state  and  federal  courts 
for  more  than  seven  years.  Since  this  appears  to  be  a  case  where 
'Hinmeritorious  litigation  has  been  prolonged  merely  for  the  pur- 
poses of  delay,  with  no  legitimate  prospect  of  success,"  Talamini 
v.  Allstate  Insurance  Co.,  470  U.  S.  1067,  1071  (1985)  (STEVENS, 
J.,  concurring),  I  would  award  respondents  $1,000  against  Jesse 
S.  Guillot,  Esq.,  petitioner's  attorney. 

No.  85-257.  GRACZYK  ET  AL.  v.  UNITED  STEELWORKERS  OF 
AMERICA.  C.  A.  7th  Cir.  Certiorari  denied.  JUSTICE  WHITE 
would  grant  certiorari.  Reported  below:  763  F.  2d  256. 

No.  85-356.  OMAN  ET  AL.  v.  H.  K.  PORTER  Co.  ET  AL.  C.  A. 
4th  Cir.  Motions  of  Blatt  &  Fales,  Henderson  &  Goldberg,  P.  C., 


ants,  only  the  conclusion  that  petitioner  was  entitled  to  damages  from  them. 
Finally,  the  Fifth  Circuit  considered  the  claims  against  state  trial  judge 
Melvin  Duran.  Judges  are  clearly  entitled  to  absolute  immunity  from  §  1983 
suits  involving  actions  taken  in  their  judicial  capacity.  Petitioner  had  sued 
Judge  Duran  only  because  he  exercised  his  judicial  discretion  in  a  case  prop- 
erly before  his  court. 


ORDERS  971 

474  U.  S.  November  4,  1985 

Association  of  Trial  Lawyers  of  America;  and  Asbestos  Victims  of 
America  for  leave  to  file  briefs  as  amid  curiae  granted.  Certio- 
rari  denied.  Reported  below:  764  F.  2d  224. 

No.  85-364.  DEPARTMENT  OF  SOCIAL  SERVICES  OF  RUSK 
COUNTY  ET  AL.  v.  J.  C.  Ct.  App.  Wis.  Motion  of  National 
Association  of  Counsel  for  Children  for  leave  to  file  a  brief  as 
amicus  curiae  granted.  Certiorari  denied.  Reported  below:  124 
Wis.  2d  776,  370  N.  W.  2d  293. 

No.  85-366.  KING  v.  LOVE.  C.  A.  6th  Cir.  Certiorari 
denied.  JUSTICE  BRENNAN  would  grant  certiorarL  Reported 
below:  766  F.  2d  962. 

No.  85-388.  DILLON  v.  POTOMAC  HOSPITAL  CORP.  Sup.  Ct. 
Va.  Motion  of  Virginia  Brown  et  al.  for  leave  to  file  a  brief  as 
amid  curiae  granted.  Certiorari  denied.  Reported  below:  229 
Va.  355,  329  S.  E.  2d  41. 

No.  85-463.  MEYERS  INDUSTRIES,  INC.  u  PRILL  ET  AL. 
C.  A.  D.  C.  Cir.  Motion  of  petitioner  for  leave  to  intervene  de- 
nied. Certiorari  denied.  Reported  below:  244  U.  S.  App.  D.  C. 
42,  755  F.  2d  941. 

No.  85-482.  FIRESTONE  TIRE  &  RUBBER  Co.  v.  COUSINEAU, 
PERSONAL  REPRESENTATIVE  OF  THE  ESTATE  OF  COUSINEAU, 
ET  AL.  Ct.  App.  Mich.  Motion  of  National  Association  of  Manu- 
facturers for  leave  to  file  a  brief  as  amicus  curiae  granted.  Cer- 
tiorari denied.  Reported  below:  140  Mich.  App.  19,  363  N.  W.  2d 
721. 

No.  85-607.  BURCHE  v.  CATERPILLAR  TRACTOR  Co.  C.  A. 
7th  Cir.  Motion  of  respondent  to  strike  purported  revision  of  the 
petition  denied.  Certiorari  denied. 

No.  85-5046.  ADAMS  v.  UNITED  STATES.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  759  F.  2d  1099. 

JUSTICE  WHITE,  with  whom  THE  CHIEF  JUSTICE  joins, 
dissenting. 

This  case  presents  the  issue  of  the  agreement  necessary  to  sup- 
port a  conviction  for  so-called  RICO  conspiracy.  For  his  part  in 
a  large-scale  narcotics  distribution  scheme,  petitioner  Adams 
was  convicted  of  both  the  substantive  RICO  offense  defined  by  18 


972  OCTOBER  TERM,  1985 

WHITE,  J.,  dissenting  474  U.S. 

U.  S.  C.  §  1962(c)*  and  conspiracy  to  commit  this  offense.  Peti- 
tioner requested  a  jury  instruction  that  he  could  not  be  found 
guilty  on  the  conspiracy  count  unless  the  evidence  showed  that  he 
had  personally  agreed  to  commit  two  acts  of  racketeering  activity. 
The  District  Judge  refused  this  instruction.  In  affirming  petition- 
er's RICO  conspiracy  conviction,  the  United  States  Court  of  Ap- 
peals for  the  Third  Circuit  held  that,  to  be  convicted  of  conspiracy 
to  violate  §  1962(c),  a  defendant  need  only  agree  to  the  commission 
of  two  predicate  acts  of  racketeering  activity,  and  need  not  agree 
to  personally  commit  those  acts.  759  F.  2d  1099,  1116  (1985). 

The  Courts  of  Appeals  disagree  as  to  the  proper  interpretation 
of  18  U.  S.  C.  §  1962(d),  the  RICO  conspiracy  statute.  Some  re- 
quire, as  the  predicate  for  conviction  under  §  1962(d)  of  conspiracy 
to  violate  §  1962(c),  an  agreement  to  personally  commit  two  acts  of 
racketeering  activity.  See,  e.  g.,  United  States  v.  Ruggiero,  726 
F.  2d  913,  921  (CA2),  cert,  denied  sub  nom.  Rabito  v.  United 
States,  469  U.  S.  831  (1984);  United  States  v.  Winter,  663  F.  2d 
1120,  1136  (CA1  1981),  cert,  denied,  460  U.  S.  1011  (1983).  Other 
Courts  of  Appeals  agree  with  the  Third  Circuit  that  §  1962(d)  also 
makes  unlawful  an  agreement  that  another  violate  §  1962(c)  by 
committing  two  acts  of  racketeering  activity.  See,  e.  g.,  United 
States  v.  Carter,  721  F.  2d  1514,  1529-1531  (CA11),  cert,  denied 
sub  nom.  Morris  v.  United  States,  469  U.  S.  819  (1984). 

Surprisingly,  even  the  Government's  interpretation  of  the  RICO 
conspiracy  statute  has  not  been  -wholly  consistent.  In  Winter, 
supra,  the  Government  conceded  that  a  count  under  §  1962(d)  of 
conspiracy  to  violate  §  1962(c)  requires  proof  that  the  defendant 
"agreed  to  commit  personally  two  or  more  predicate  crimes  con- 
stituting a  pattern  of  racketeering  activity."  663  F.  2d,  at  1136. 


*In  writing  the  Racketeer  Influenced  and  Corrupt  Organizations  Act,  18 
U.  S.  C.  §  1961  et  seq.,  Congress  denned  three  new  substantive  offenses,  18 
U.  S.  C.  §§  1962(a),  (b),  (c),  and  also  made  it  unlawful  to  conspire  to  commit 
these  substantive  offenses,  18  U.  S.  C.  §  1962(d).  Title  18  U.  S.  C.  §  1962(c), 
the  relevant  substantive  offense  in  this  case,  provides: 

"It  shall  be  unlawful  for  any  person  employed  by  or  associated  with  any 
enterprise  engaged  in,  or  the  activities  of  which  affect,  interstate  or  foreign 
commerce,  to  conduct  or  participate,  directly  or  indirectly,  in  the  conduct  of 
such  enterprise's  affairs  through  a  pattern  of  racketeering  activity  or  collec- 
tion of  unlawful  debt." 

Title  18  U.  S.  C.  §  1961(5)  provides  that  the  term  "pattern  of  racketeering 
activity"  requires  at  least  two  acts  of  racketeering  activity,  a  term  which  in 
turn  is  defined  at  18  U.  S.  C.  §  1961(1). 


ORDERS  973 

474  U.  S.  November  4,  1985 

In  other  cases,  including  this  one,  the  Government  has  argued  for 
the  interpretation  of  §  1962(d)  adopted  by  the  Third  Circuit. 

"The  legislative  history  [of  the  RICO  statute]  clearly  demon- 
strates that  [it]  was  intended  to  provide  new  weapons  of  unprece- 
dented scope  for  an  assault  upon  organized  crime  and  its  economic 
roots."  Russello  v.  United  States,  464  U.  S.  16,  26  (1983).  If 
the  Third  Circuit's  interpretation  of  §  1962(d)  is  correct,  Congress' 
intent  is  being  frustrated  in  those  circuits  which  adhere  to  the  nar- 
rower view  of  RICO  conspiracy.  If  the  Third  Circuit's  interpre- 
tation is  incorrect,  defendants  are  being  exposed  to  conviction  for 
behavior  Congress  did  not  intend  to  reach  under  §  1962(d).  I 
would  grant  certiorari  to  resolve  the  conflict  among  the  Courts  of 
Appeals. 

No.  85-5141.  DEGARMO  v.  TEXAS.  Ct.  Crim.  App.  Tex. 
Certiorari  denied.  Reported  below:  691  S.  W.  2d  657. 

JUSTICE  BRENNAN,  with  whom  JUSTICE  MARSHALL  joins, 
dissenting. 

In  Gregg  v.  Georgia,  428  U.  S.  153  (1976),  six  Justices  concluded 
that  a  capital  sentencing  scheme  that  directs  and  limits  the  jury's 
discretion  minimizes  the  risk  of  arbitrary  and  freakish  imposition 
of  the  death  penalty  and  thereby  cures  the  defects  that  led  the 
Court  in  Furman  v.  Georgia,  408  U.  S.  238  (1972),  to  invalidate 
capital  punishment  as  unconstitutionally  cruel  and  unusual.  I  dis- 
sented in  Gregg  because  I  do  not  believe  that  the  unconstitution- 
ally of  capital  punishment  depends  upon  the  procedures  under 
which  the  penalty  is  inflicted.  In  my  view,  the  constitutional 
infirmity  in  the  punishment  of  death  is  that  "it  treats  'members  of 
the  human  race  as  nonhumans,  as  objects  to  be  toyed  with  and  dis- 
carded' "  and  is  thus  "  'inconsistent  with  the  fundamental  premise 
of  the  [Eighth  Amendment]  that  even  the  vilest  criminal  remains 
a  human  being  possessed  of  common  human  dignity.'"  Gregg, 
supra,  at  230  (BRENNAN,  J.,  dissenting)  (quoting  Furman  v. 
Georgia,  supra,  at  273). 

I  have  adhered  to  this  view  that  capital  punishment  is  in  all 
circumstances  cruel  and  unusual  punishment  prohibited  by  the 
Eighth  and  Fourteenth  Amendments.  I  do  so  again  today.  But 
even  if  I  agreed  that  capital  punishment  is  constitutional  if 
imposed  in  a  rational  and  nondiscriminatory  manner,  I  remain 
convinced  that  the  Court  deludes  itself  when  it  insists  that  the 
infliction  of  the  death  penalty,  as  currently  administered,  is  not 


974  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

arbitrary  or  capricious  under  any  meaningful  definition  of  those 
terms.  See  Pulley  v.  Harris,  465  U.  S.  37,  59  (1984)  (BRENNAN, 
J.,  dissenting).  This  case  demonstrates  just  one  way  in  which 
capital  sentencing  schemes  have  failed  to  eliminate  arbitrariness  in 
the  choice  of  who  is  put  to  death. 

With  the  aid  of  Helen  Mejia,  Roger  DeGarmo  kidnaped  and 
murdered  a  young  woman.  DeGarmo  was  subsequently  convicted 
of  capital  murder  and  condemned  to  die  by  lethal  injection.  As 
part  of  a  plea  bargain,  Mejia— whose  participation  made  her 
equally  subject  to  prosecution  under  the  capital  murder  statute— 
received  a  sentence  of  only  10  years'  deferred  probation.  In 
other  words,  while  the  State  sought  and  may  soon  succeed  in 
putting  DeGarmo  to  death,  it  did  not  care  to  see  his  accomplice 
serve  even  a  day  in  jail  for  participating  in  the  same  offense. 
This  gross  disparity  in  treatment  is  solely  a  product  of  the  pros- 
ecutor's unfettered  discretion  to  choose  who  will  be  put  in  jeop- 
ardy of  life  and  who  will  not.* 

I  believe  that  such  a  disparity  in  treatment  is  alone  sufficient 
grounds  to  set  aside  DeGarmo's  death  sentence  as  disproportion- 
ate under  the  circumstances.  Cf.  Pulley  v.  Harris,  supra,  at  43; 
Solem  v.  Helm,  463  U.  S.  277  (1983).  More  importantly,  how- 
ever, this  disparity  in  treatment  highlights  the  utter  failure  of  the 
elaborate  sentencing  schemes  approved  by  the  Court  in  Gregg  and 
its  companion  cases  to  meaningfully  limit  the  arbitrary  infliction  of 


*Although  Mejia  testified  for  the  State  at  trial,  the  prosecutor's  decision  to 
let  her  go  free  was  not  needed  to  obtain  DeGarmo's  conviction.  Mejia's  plea 
and  sentence  were  not  entered  until  over  18  months  after  DeGarmo's  trial. 
On  appeal,  DeGarmo  alleged  that  the  State  had  offered  this  remarkably 
lenient  deal  to  Mejia  before  his  trial  to  persuade  her  to  testify.  DeGarmo 
argued  that  the  prosecutor's  failure  to  disclose  this  promise  violated  his  right 
to  have  the  agreement  disclosed  to  the  jury.  See  Giglio  v.  United  States,  405 
U.  S.  150  (1972).  The  State  responded  that  the  agreement  to  let  Mejia  off  on 
probation  was  made  after  DeGarmo's  trial  and  that,  at  the  time  of  the  trial, 
Mejia  was  promised  only  that  she  would  not  be  prosecuted  for  capital  murder. 
Without  a  hearing  and  based  solely  on  the  record  on  appeal,  the  Texas  Court 
of  Criminal  Appeals  accepted  the  State's  version  of  the  facts.  Of  course, 
DeGarmo  may  raise  this  claim  again  in  federal  habeas  proceedings,  and,  if  the 
district  judge  so  orders,  may  obtain  a  hearing  to  show  that  such  was  not  the 
case.  See  28  U.  S.  C.  §  2254(d).  However,  in  the  absence  of  contrary  find- 
ings, I  accept  the  conclusions  of  the  state  court.  Based  on  these  facts,  the 
decision  not  to  seek  at  least  imprisonment  for  Mejia  while  seeking  the  death 
penalty  for  DeGarmo  is  puzzling. 


ORDERS  975 

474  U.  S.  November  4,  1985 

death  by  the  States.  When  Gregg  was  decided  several  Members 
of  the  Court  expressed  the  belief  that  channeling  juror  discretion 
would  minimize  the  risk  that  the  death  penalty  "would  be  imposed 
on  a  capriciously  selected  group  of  offenders,"  thereby  making  it 
unnecessary  to  channel  discretion  at  earlier  stages  in  the  criminal 
justice  system.  See  Gregg,  supra,  at  199  (opinion  of  Stewart, 
POWELL,  and  STEVENS,  JJ.).  But  discrimination  and  arbitrari- 
ness at  an  earlier  point  in  the  selection  process  nullify  the  value  of 
later  controls  on  the  jury.  The  selection  process  for  the  imposi- 
tion of  the  death  penalty  does  not  begin  at  trial;  it  begins  in  the 
prosecutor's  office.  His  decision  whether  or  not  to  seek  capital 
punishment  is  no  less  important  than  the  jury's.  Just  like  the 
jury,  then,  where  death  is  the  consequence,  the  prosecutor's  "dis- 
cretion must  be  suitably  directed  and  limited  so  as  to  minimize  the 
risk  of  wholly  arbitrary  and  capricious  action."  428  U.  S.,  at  189. 
Instead,  the  decisions  whether  to  prosecute,  what  offense  to 
prosecute,  whether  to  plea  bargain  or  not  to  negotiate  at  all  are 
made  at  the  unbridled  discretion  of  individual  prosecutors.  The 
prosecutor's  choices  are  subject  to  no  standards,  no  supervision, 
no  controls  whatever.  There  are,  of  course,  benefits  associated 
with  granting  prosecutors  so  much  discretion,  but  there  are  also 
costs.  Some  of  these  costs  are  simply  accepted  as  part  of  our 
criminal  justice  system.  But  if  the  price  of  prosecutorial  inde- 
pendence is  the  freedom  to  impose  death  in  an  arbitrary,  freakish, 
or  discriminatory  manner,  it  is  a  price  the  Eighth  Amendment  will 
not  tolerate.  I  dissent  and  would  grant  the  petition  in  order  to 
vacate  the  sentence  below. 

No.  85-5417.     EDMONDS  v.  VIRGINIA.     Sup.  Ct.  Va.; 

No.  85-5478.  MARTINEZ- VILLAREAL  v.  ARIZONA.  Sup.  Ct. 
Ariz.; 

No.  85-5486.  BOOKER  u  WAINWRIGHT,  SECRETARY,  FLORIDA 
DEPARTMENT  OF  CORRECTIONS.  C.  A.  llth  Cir.;  and 

No.  85-5548.  KENNEDY  u  ALABAMA.  Sup.  Ct.  Ala.  Certio- 
rari  denied.  Reported  below:  No.  85-5417,  229  Va.  303,  329 
S.  E.  2d  807;  No.  85-5478,  145  Ariz.  441,  702  P.  2d  670;  No.  85- 
5486,  764  F.  2d  1371;  No.  85-5548,  472  So.  2d  1106. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 


976  OCTOBER  TERM,  1985 

November  4,  6,  8,  12,  1985  474  U.  S. 

227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentences  in  these  cases. 

NOVEMBER  6,  1985 
Dismissal  Under  Rule  53 

No.  85-635.  LlBBEY-OWENS-FORD  CO.  ET  AL.  V.  SHATTER- 
PROOF GLASS  CORP.  C.  A.  Fed.  Cir.  Certiorari  dismissed 
tinder  this  Court's  Rule  53.  Reported  below:  758  F.  2d  613. 

NOVEMBER  8,  1985 

Miscellaneous  Order 

No.  A-362.  UKRAINIAN- AMERICAN  BAR  ASSN.,  INC.,  ET  AL. 
v.  SHULTZ,  SECRETARY  OF  STATE,  ET  AL.  Application  for  injunc- 
tive  relief,  or  in  the  alternative  to  treat  the  application  as  a  peti- 
tion for  writ  of  habeas  corpus,  presented  to  THE  CHIEF  JUSTICE, 
and  by  him  referred  to  the  Court,  denied. 

NOVEMBER  12,  1985 

Appeals  Dismissed.     (See  also  No.  85-390,  infra.) 

No.  85-485.  GIBSON  v.  BOARD  OF  ATTORNEYS  PROFESSIONAL 
RESPONSIBILITY  OF  WISCONSIN.  Appeal  from  Sup.  Ct.  Wis.  dis- 
missed for  want  of  substantial  federal  question.  Reported  below: 
124  Wis.  2d  466,  369  N.  W.  2d  695. 

No.  85-497.  IN  RE  MATTER  OF  N.  P.  Appeal  from  Sup.  Ct. 
Minn,  dismissed  for  want  of  substantial  federal  question.  Re- 
ported below:  361  N.  W.  2d  386. 

Certiorari  Granted— Reversed  and  Remanded.     (See  No.  84—1852, 
ante,  p.  28.) 

Certiorari  Granted— Vacated  and  Remanded 

No.  85-5271.  FELDER  v.  ALABAMA.  Sup.  Ct.  Ala.  Motion  of 
petitioner  for  leave  to  proceed  in  forma  pauperis  and  certiorari 
granted.  Judgment  vacated  and  case  remanded  for  further 
consideration  in  light  of  Ake  v.  Oklahoma,  470  U.  S.  68  (1985). 
Reported  below:  470  So.  2d  1330. 

Miscellaneous  Orders 

No. .     BARKER  ET  AL.  v.  E.  I.  DU  PONT  DE  NEMOURS 

&  Co.,  INC.,  ET  AL.     Motion  to  direct  the  Clerk  to  file  the  petition 


ORDERS  977 

474  U.  S.  November  12,  1985 

for  writ  of  certiorari  out  of  time  denied.     JUSTICE  POWELL  took 
no  part  in  the  consideration  or  decision  of  this  motion. 

No.  A-301.  MAINSAH  v.  IMMIGRATION  AND  NATURALIZATION 
SERVICE.  Application  for  stay  of  deportation,  addressed  to 
JUSTICE  MARSHALL  and  referred  to  the  Court,  denied. 

No.  A-345.  IN  RE  ALEXANDER.  Ct.  App.  D.  C.  Application 
for  recall  and  stay  of  mandate,  presented  to  THE  CHIEF  JUSTICE, 
and  by  him  referred  to  the  Court,  denied. 

No.  D-506.  IN  RE  DISBARMENT  OP  DANIELS.  Disbarment 
entered.  [For  earlier  order  herein,  see  472  U.  S.  1024.] 

No.  D-509.  IN  RE  DISBARMENT  OF  ALEXANDER.  It  is  or- 
dered that  Harry  Toussaint  Alexander,  of  Washington,  D.  C.,  be 
suspended  from  the  practice  of  law  in  this  Court  and  that  a  rule 
issue,  returnable  within  40  days,  requiring  him  to  show  cause  why 
he  should  not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-510.  IN  RE  DISBARMENT  OF  CODY.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  473  U.  S.  930.] 

No.  D-514.  IN  RE  DISBARMENT  OF  LEBOVTTZ.  Disbarment 
entered.  [For  earlier  order  herein,  see  473  U.  S.  931.] 

No.  D-517.  IN  RE  DISBARMENT  OF  SABISTON.  It  having  been 
reported  to  the  Court  that  William  Devine  Sabiston,  Jr.,  has  died, 
the  rule  to  show  cause,  heretofore  issued  on  September  18,  1985 
[473  U.  S.  931],  is  hereby  discharged. 

No.  84-1279.  DELAWARE  v.  VAN  ARSDALL.  Sup.  Ct.  Del. 
[Certiorari  granted,  473  U.  S.  923.]  Motion  of  respondent  for 
divided  argument  denied. 

No.  84-2030.  BROWN-FORMAN  DISTILLERS  CORP.  v.  NEW 
YORK  STATE  LIQUOR  AUTHORITY.  Ct.  App.  N.  Y.  [Probable 
jurisdiction  noted,  ante,  p.  814.]  Motion  of  appellant  to  dispense 
with  printing  the  joint  appendix  denied.  JUSTICE  BRENNAN 
took  no  part  in  the  consideration  or  decision  of  this  motion. 

No.  84-6270.  GREEN  ET  AL.  v.  MANSOUR,  DIRECTOR,  MICHI- 
GAN DEPARTMENT  OF  SOCIAL  SERVICES.  C.  A.  6th  Cir.  [Cer- 
tiorari granted,  471  U.  S.  1003.]  Motion  of  petitioners  for  leave 
to  file  a  supplemental  brief  after  argument  granted. 


978  OCTOBER  TERM,  1985 

November  12,  1985  474  U.  S, 

No.  85-195.  ICICLE  SEAFOODS,  INC.  u  WORTHINGTON  ET  AL. 
C.  A.  9th  Cir.  [Certiorari  granted,  ante,  p.  900.]  Motion  of 
petitioner  to  dispense  with  printing  the  joint  appendix  granted. 

No.  85-246.  UNITED  STATES  v.  DION.  C.  A.  8th  Cir.  [Cer- 
tiorari granted,  ante,  p.  900.]  Motion  for  appointment  of  coun- 
sel granted,  and  it  is  ordered  that  Terry  L.  Pechota,  Esquire,  of 
Rapid  City,  S.  D.,  be  appointed  to  serve  as  counsel  for  respondent 
in  this  case. 

No.  85-441.  ROBERTS,  COMMISSIONER  OF  LABOR  OF  THE 
STATE  OF  NEW  YORK  u  BURLINGTON  INDUSTRIES,  INC.;  and 

No.  85-460.  GILBERT  ET  AL.  v.  BURLINGTON  INDUSTRIES, 
INC.  Appeals  from  C.  A.  2d  Cir.  The  Solicitor  General  is  in- 
vited to  file  a  brief  in  these  cases  expressing  the  views  of  the 
United  States. 

No.  85-5434.     IN  RE  SMITH-BEY;  and 

No.  85-5443.  IN  RE  JACKSON.  Petitions  for  writs  of  manda- 
mus denied. 

Probable  Jurisdiction  Postponed 

No.  85-488.  OHIO  CIVIL  RIGHTS  COMMISSION  ET  AL.  v.  DAY- 
TON CHRISTIAN  SCHOOLS,  INC.,  ET  AL.  Appeal  from  C.  A.  6th 
Cir.  Further  consideration  of  question  of  jurisdiction  postponed 
to  hearing  of  case  on  the  merits.  Reported  below:  766  F.  2d  932. 

Certiorari  Granted 

No.  85-434.  UNITED  STATES  v.  JAMES  ET  AL.  C.  A.  5th  Cir. 
Certiorari  granted.  Reported  below:  760  F.  2d  590. 

No.  85-437.  ARCARA,  DISTRICT  ATTORNEY  OF  ERIE  COUNTY 
v.  CLOUD  BOOKS,  INC.,  DBA  VILLAGE  BOOK  &  NEWS  STORE,  ET 
AL.  Ct.  App.  N.  Y.  Certiorari  granted.  Reported  below:  65 
N.  Y.  2d  324,  480  N.  E.  2d  1089. 

No.  85-519.  RANDALL  ET  AL.  v.  LOFTSGAARDEN  ET  AL. 
C.  A.  8th  Cir.  Certiorari  granted.  Reported  below:  768  F.  2d 
949. 

No.  85-93.     B AZEMORE  ET  AL.  v.  FRIDAY  ET  AL.  ;  and 
No.  85-428.     UNITED  STATES  ET  AL.  v.  FRIDAY  ET  AL.     C.  A. 
4th  Cir.     Certiorari  granted,  cases  consolidated,  and  a  total  of  one 
hour  allotted  for  oral  argument.     Reported  below:  751  F.  2d  662. 


ORDERS  979 

474  U.  S.  November  12,  1985 

No.  85-390.  CITY  OF  Los  ANGELES  ET  AL.  v.  PREFERRED 
COMMUNICATIONS,  INC.  Appeal  from  C.  A.  9th  Cir.  dismissed 
for  want  of  jurisdiction.  Treating  the  papers  whereon  the  appeal 
was  taken  as  a  petition  for  writ  of  certiorari,  certiorari  granted. 
Reported  below:  754  F.  2d  1396. 

No.  85-5404.  ALLEN  u  ILLINOIS.  Sup.  Ct.  111.  Motion  of 
petitioner  for  leave  to  proceed  in  forma  pauperis  and  certiorari 
granted.  Reported  below:  107  111.  2d  91,  481  N.  E.  2d  690. 

Certiorari  Denied 

No.  84-1992.  GREEN  v.  MISSISSIPPI.  Sup.  Ct.  Miss.  Certio- 
rari denied.  Reported  below:  465  So.  2d  999. 

No.  84-6701.  MCGAHARAN  v.  JAGO,  SUPERINTENDENT,  LON- 
DON CORRECTIONAL  INSTITUTION.  C.  A.  6th  Cir.  Certiorari 
denied. 

No.  84-6736.  GOUDLOCK  v.  MORRIS,  SUPERINTENDENT, 
SOUTHERN  OHIO  CORRECTIONAL  FACILITY.  C.  A.  6th  Cir.  Cer- 
tiorari denied.  Reported  below:  751  F.  2d  865. 

No.  84-6881.  BEANS  v.  BLACK,  WARDEN.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  757  F.  2d  933. 

No.  84-6905.  SHABAZZ  v.  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 

No.  84-6914.  SIMONS  v.  MONTGOMERY  COUNTY  DEPARTMENT 
OF  PAROLE  AND  PROBATIONS.  C.  A.  4th  Cir.  Certiorari  denied. 
Reported  below:  765  F.  2d  139. 

No.  84-6940.  MOORE  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  751  F.  2d  1528. 

No.  84-6959.  MONTGOMERY  v.  UNITED  STATES.  C.  A.  5th 
Cir.  Certiorari  denied.  Reported  below:  759  F.  2d  19. 

No.  84-6986.  OCHOA  v.  LENNON,  WARDEN.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  750  F.  2d  1345. 

No.  85-144.  Moss  ET  ux.  u  COMMISSIONER  OF  INTERNAL 
REVENUE.  C.  A.  7th  Cir.  Certiorari  denied.  Reported  below: 
758  F.  2d  211. 

No.  85-300.  EVANS  v.  UNITED  STATES  DEPARTMENT  OF  THE 
ARMY.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported  below: 
770  F.  2d  180. 


980  OCTOBER  TERM,  1985 

November  12,  1985  474  U.  S. 

No.  85-318.  EL  SHAHAWYU  ELLIOTT.  C.  A.  llth  Cir.  Cer- 
tiorari  denied.  Reported  below:  761  F.  2d  696. 

No.  85-358.  KENNER  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  753  F.  2d  1077. 

No.  85-423.  THOMAS  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  897. 

No.  85-425.  REYNOLDS  u  FLORIDA.  Cir.  Ct.  Fla. ,  Escambia 
County.  Certiorari  denied. 

No.  85-442.  ECKELS,  COUNTY  COMMISSIONER,  HARRIS 
COUNTY,  TEXAS  u  GREATER  HOUSTON  CHAPTER  OF  THE  AMER- 
ICAN CIVIL  LIBERTIES  UNION  ET  AL.  C.  A.  5th  Cir.  Certiorari 
denied.  Reported  below:  755  F.  2d  426  and  763  F.  2d  180. 

No.  85-447.  MAX  DAETWYLER  CORP.  v.  MEYER.  C.  A.  3d 
Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  290. 

No.  85-462.  MULLEN  v.  SKINNER  ET  AL.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  999. 

No.  85-467.  ILLINOIS  PRO-LIFE  COALITION,  INC.,  Ill  v. 
KEITH  ET  AL.  C.  A.  7th  Cir.  Certiorari  denied.  Reported 
below:  764  F.  2d  1265. 

No.  85-468.  BOARDMAN  ET  AL.  V.  UNITED  SERVICES  AUTOMO- 
BILE ASSN.  C.  A.  5th  Cir.  Certiorari  denied.  Reported  below: 
768  F.  2d  718. 

No.  85-470.  CORTEZ  ET  ux.,  INDIVIDUALLY  AND  DBA  CORTEZ 
AGENCY  v.  UNAUTHORIZED  PRACTICE  COMMITTEE,  STATE  BAR 
OF  TEXAS.  Sup.  Ct.  Tex.  Certiorari  denied.  Reported  below: 
692  S.  W.  2d  47. 

No.  85-475.  MINTZ  v.  CALIFORNIA.  App.  Dept.,  Super.  Ct. 
Cal.,  County  of  Los  Angeles.  Certiorari  denied. 

No.  85-476.  BLANKFIELD  v.  TEXAS  STATE  BOARD  OF  DENTAL 
EXAMINERS.  Ct.  App.  Tex.,  1st  Sup.  Jud.  Dist.  Certiorari 
denied. 

No.  85-477,  PHILADELPHIA  ELECTRIC  Co.  v.  HERCULES  INC. 
ET  AL.  C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  762 
F.  2d  303. 


ORDERS  981 

474  U.  S.  November  12,  1985 

No.  85-478.  PAR  PHARMACEUTICAL,  INC.  v.  MERCK  &  Co., 
INC.  C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  770  F. 
2d  1072. 

No.  85-481.  STANLEY  v.  AUBERT  ET  AL.  Super.  Ct.  N,  J., 
App.  Div.  Certiorari  denied. 

No.  85-510.  SIMMONS  ET  AL.  v.  CAMDEN  COUNTY  BOARD  OF 
EDUCATION  ET  AL.  C.  A.  llth  Cir.  Certiorari  denied.  Re- 
ported below:  757  F.  2d  1187. 

No.  85-536.  MIR  v.  FOSBURG  ET  AL.  C.  A.  9th  Cir.  Certio- 
rari denied.  Reported  below:  767  F.  2d  933. 

No.  85-557.  SIERRA  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  152. 

No.  85-563.  SHEFFIELD  v.  NORTH  CAROLINA  STATE  BAR. 
Ct.  App.  N.  C.  Certiorari  denied.  Reported  below:  73  N.  C. 
App.  349,  326  S.  E.  2d  320. 

No.  85-577.  HAAS  v.  WEINER  ET  AL.  C.  A.  8th  Cir.  Certio- 
rari denied.  Reported  below:  765  F.  2d  123. 

No.  85-595.  BELLA  PORTA  v.  DEPARTMENT  OF  TRANSPORTA- 
TION, FEDERAL  AVIATION  ADMINISTRATION.  C.  A.  Fed.  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  182. 

No.  85-597.  TYPHOON  CAR  WASH,  INC.  v.  MOBIL  OIL  CORP. 
Temp.  Emerg.  Ct.  App.  Certiorari  denied.  Reported  below: 
770  F.  2d  1085. 

No.  85-605.  VILLANO  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  85-620.  HELMINSKI,  ET  AL.,  AS  NEXT  FRIENDS  OF 
HELMINSKI  v.  AYERST  LABORATORIES.  C.  A.  6th  Cir.  Certio- 
rari denied.  Reported  below:  766  F.  2d  208. 

No.  85-643.  MUHAMMAD,  AKA  JONES  v.  UNITED  STATES. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  763  F.  2d  518. 

No.  85-5086.  POWELL  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied.  Reported  below:  485  A.  2d  596. 

No.  85-5105.  HUDSON  v.  MORAN,  SHERIFF,  ET  AL.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  1027. 


982  OCTOBER  TERM,  1985 

November  12,  1985  474  U.  S. 

No.  85-5117.  BROWN  v.  NEWSOME,  SUPERINTENDENT,  GEOR- 
GIA STATE  PRISON,  ET  AL.  C.  A.  llth  Cir.  Certiorari  denied. 

No.  85-5131.  PRESSLEY  v.  FLORIDA.  Dist.  Ct.  App.  Fla. ,  5th 
Dist.  Certiorari  denied.  Reported  below:  469  So.  2d  908. 

No.  85-5133.  SAILOR  v.  NEW  YORK.  Ct.  App.  N.  Y.  Certio- 
rari denied.  Reported  below:  65  N.  Y.  2d  224,  480  N.  E.  2d  701. 

No.  85-5140.  PITTS  v.  LOCKHART,  DIRECTOR,  ARKANSAS  DE- 
PARTMENT OF  CORRECTION.  C.  A.  8th  Cir.  Certiorari  denied. 
Reported  below:  753  F.  2d  689. 

No.  85-5167.  HEMPHILL  u  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  922. 

No.  85-5185.  TAYLOR  v.  BEST  ET  AL.  C.  A.  4th  Cir.  Certio- 
rari denied.  Reported  below:  746  F.  2d  220. 

No.  85-5230.  HELLER  u  BOYD  ET  AL.  C.  A.  llth  Cir.  Cer- 
tiorari denied.  Reported  below:  762  F.  2d  1022. 

No.  85-5237.  CORNETT  u  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  922. 

No.  85-5408.  DISE  «,  UNITED  STATES.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  763  F.  2d  586. 

No.  85-5421.  LOWE  v.  Cox  COMMUNICATIONS,  INC.  Ct.  App. 
Ga.  Certiorari  denied.  Reported  below:  173  Ga.  App.  812,  328 
S.  E.  2d  384. 

No.  85-5425.  PITTMAN  v.  BLACK,  WARDEN.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  764  F.  2d  545. 

No.  85-5428.  PRESTON  v.  TEXAS.  Ct.  App.  Tex.,  5th  Sup. 
Jud.  Dist.  Certiorari  denied.  Reported  below:  675  S.  W.  2d 
598. 

No.  85-5433.  SANCHEZ  v.  ROTH  ET  AL.  C.  A.  9th  Cir.  Cer- 
tiorari denied. 

No.  85-5436.  IN  RE  STURM.  Sup.  Ct.  Cal.  Certiorari 
denied. 

No.  85-5444.  LEWINGDON  ET  AL.  v.  OHIO  ET  AL.  Sup.  Ct. 
Ohio.  Certiorari  denied. 

No.  85-5457.  FORSYTH  v.  LARSEN,  ACTING  WARDEN.  C.  A. 
4th  Cir.  Certiorari  denied.  Reported  below:  767  F.  2d  911. 


ORDERS  983 

474  U.  S.  November  12,  1985 

No.  85-5461.  BRAY  v.  DODGE  COUNTY,  GEORGIA,  ET  AL. 
C.  A.  llth  Cir.  Certiorari  denied. 

No.  85-5463.  WESER  v.  SAFFELS,  JUDGE,  UNITED  STATES 
DISTRICT  COURT,  DISTRICT  OF  KANSAS.  C.  A.  10th  Cir.  Cer- 
tiorari denied. 

No.  85-5469.  MOORE  v.  RICE,  WARDEN,  ET  AL.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  767  F.  2d  912. 

No.  85-5480.  WOLD  v.  LERNER.  C.  A.  7th  Cir.  Certiorari 
denied. 

No.  85-5492.  GAY  v.  HENRY,  PROTHONOTARY,  SUPERIOR 
COURT  OF  PENNSYLVANIA,  ET  AL.  C.  A.  3d  Cir.  Certiorari 
denied. 

No.  85-5499.  BROWN  v.  BELZ.  C.  A.  llth  Cir.  Certiorari 
denied. 

No.  85-5501.  DARUD  u  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied. 

No.  85-5526.  WHITE  u  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  915. 

No.  85-5558.  GOODPASTER  v.  UNITED  STATES.  C.  A.  6th 
Cir.  Certiorari  denied.  Reported  below:  769  F.  2d  374. 

No.  85-5559.  CALHOUN  u  OHIO.  Sup.  Ct.  Ohio.  Certiorari 
denied.  Reported  below:  18  Ohio  St.  3d  373,  481  N.  E.  2d  624. 

No.  85-5574.  WICKHAM  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  162. 

No.  85-5575.  VIGNE  u  UNITED  STATES.  C.  A.  D.  C.  Cir. 
Certiorari  denied. 

No.  85-5579.  MITCHELL  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  130. 

No.  85-5580.  PELLETIER  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  171. 

No.  85-5586.  ALLEN  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1083. 

No.  85-5621.  DiMAGGio  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  902. 


984  OCTOBER  TERM,  1985 

November  12,  1985  474  U.  S. 

No.  85-5622.  HUTCHINGS  VON  LUDWITZ  v.  UNITED  STATES 
PAROLE  COMMISSION.  C.  A.  D.  C.  Cir.  Certiorari  denied. 

No.  84-6838.  BARRETT  v.  UNITED  STATES  CUSTOMS  SERVICE 
ET  AL.  C.  A.  5th  Cir.  Motion  of  petitioner  for  reconsidera- 
tion of  order  denying  leave  to  proceed  in  forma  pauperis  granted, 
and  order  entered  October  7,  1985  [.ante,  p.  812],  denying  leave 
to  proceed  in  forma  pauperis  vacated.  Certiorari  denied.  Re- 
ported below:  753  F.  2d  1074. 

No.  85-8.  McCoMMON  v.  MISSISSIPPI.  Sup.  Ct.  Miss.  Cer- 
tiorari denied.  Reported  below:  467  So.  2d  940. 

JUSTICE  BRENNAN,  with  whom  JUSTICE  MARSHALL  joins, 
dissenting. 

It  is  well  recognized  that  the  Fourth  Amendment  "imposes  sub- 
stantive standards  for  searches  and  seizures;  but  with  them  one  of 
the  important  safeguards  it  establishes  is  a  procedure;  and  [that] 
central  to  this  procedure  is  an  independent  control  over  the  ac- 
tions of  officers  effecting  searches  of  private  premises."     Abel  v. 
United  States,  362  U.  S.  217,  251-252  (1960)  (BRENNAN,  J.,  dis- 
senting).    Thus  this  Court  has  long  insisted  that  the  determina- 
tion whether  probable  cause  exists  to  support  a  search  warrant 
be  made  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  (1948)  (emphasis  added).     See  also  United  States  v.  Leon, 
468  U.  S.  897,  913-914  (1984);  Illinois  v.  Gates,  462  U.  S.  213,  240 
(1983);  Lo-Ji  Sales,  Inc.  v.  New  York,  442  U.  S.  319,  326-327 
(1979);  United  States  v.  Chadwick,  433  U.  S.  1,  9  (1977);  Shadusick 
v.   City  of  Tampa,  407  U.  S.  345,   350  (1972);   Coolidge  v.   New 
Hampshire,  403  U.  S.  443,  450  (1971);  Aguilar  v.  Texas,  378  U.  S. 
108,  111  (1964);  Giordenello  v.  United  States,  357  U.  S.  480,  486 
(1958);   United  States  v.   Lefkowitz,   285   U.  S.    452,    464   (1932). 
Just  two  Terms  ago  in  United  States  v.  Leon,  supra,  the  Court 
vigorously  reaffirmed  that  the  probable-cause  decision  must  be 
made  by  a  neutral  and  detached  magistrate,    stating  that  "the 
courts  must  .  .  .  insist  that  the  magistrate  purport  to  'perform 
his  "neutral  and  detached"  function  and  not  serve  merely  as  a  rub- 
ber stamp   for  the  police.'"      Id.,    at   914   (quoting   Aguilar   v. 
Texas,  supra,  at  111).     And,  as  we  explained  in  Shadynck  v.  City 
of  Tampa,  supra,  at  350,  "[w]hatever  else  neutrality  and  detach- 


ORDERS  985 

984  BRENNAN,  J.,  dissenting 

ment  might  entail,  it  is  clear  that  they  require  severance  and 
disengagement  from  activities  of  law  enforcement."  Today  the 
Court  refuses  to  act  on  its  convictions,  denying  certiorari  in  a 
case  in  which  the  judge  who  issued  the  search  warrant  indisput- 
ably "rubber-stamped"  the  police  request. 

In  this  case,  a  large  quantity  of  marijuana  was  discovered  in  the 
trunk  of  petitioner's  automobile  when  it  was  searched  pursuant  to 
a  warrant.  Petitioner  challenged  the  validity  of  the  warrant  at  a 
pretrial  suppression  hearing,  arguing  that  it  was  not  supported  by 
probable  cause.  The  judge  who  granted  the  warrant  testified  at 
the  hearing.  With  remarkable  candor,  he  explained  that  he  had 
relied  principally  on  the  fact  that  police  officers  had  asked  for  the 
warrant,  rather  than  on  the  underlying  facts  and  circumstances 
set  forth  in  the  affidavit.  The  pertinent  portion  of  the  judge's 
testimony  on  cross-examination  follows: 

"Q.  You  would  have  issued  [the  search  warrant  even  if  a  cer- 
tain statement  in  the  affidavit  either  had  not  been  included  or 
the  judge  had  known  it  not  to  be  true]? 

"A.  Certainly,  because  the  officer — you've  got  to  have  enough 
faith  and  confidence  in  the  officer  that's  asking  for  the  search 
warrant  to  warrant  it  for  him  and  then  if  it  proves  it's  invalid, 
well,  or  whatever,  there's  nothing  there  what  they're  hunt- 
ing—that's not  the  first  time  I  ever  made  a  Search  Warrant. 
"Q.  So,  you  were  relying  on  the  fact  that  these  officers  were 
of  the  law — 
"A.  Of  the  law  sworn— 

"Q.   —and  they  were  in  there— they  were  sworn  officers  — 
"A.   That's  right. 

"Q.    —they  were  in  there  telling  you  that  this  fellow  was  a 
drug  dealer  and  they  wanted  to  search  his  car — 
"A.  That's  exactly  right. 

"Q.   —and  you  relied  on  that  rather  than  any  particulars  of 
this  thing? 
"A.  That's  right. 

"Q.  So,  you  really  issued  the  Search  Warrant  because  you 
were  asked  for  it  by  two  sworn  officers  of  law  rather  than  any 
particular  thing  they  told  you? 

"A.  Well,  I  based  my  decision  not  primarily  on  that,  but 
because— if  Sheriff  Jones  walked  in  there  and  said,  'Judge, 


986  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

I  need  a  Search  Warrant  to  search  John  Doe  for  Marijuana,' 

drugs  or  whatever —liquor  or  whatever  it  might  be,  I'm  going 

to  go  on  his  word  because  he's— I  take  him  to  be  an  honest 

law  enforcement  officer  and  he  needs  help  to  get  in  to  search 

these  places  and  it's  my  duty  to  help  him  to  fulfill  that. 

"Q.  Okay.     And  it's  really  based  on  the  request  other  than 

any  particular  thing  he  might  tell  you? 

"A.  That's  right.     That's  right. 

"Q.  And  that's  what  the  situation  was  here? 

"A.  Well,  if  I  didn't  feel  like  it  was  warranted,  now,  then, 

naturally,  I  wouldn't  issue  it. 

"Q.  Okay,  but  .  .  .  the  swaying  fact  was  that  this  was  two 

sworn  officers  of  the  law  rather  than  anything  they  told  you 

in  these  Underlying  Facts  and  Circumstances? 

"A.  That's  right.     They  were  officers  of  the  Narcotics.*' 

The  trial  court  rejected  petitioner's  arguments  and  admitted 
the  evidence.  The  Mississippi  Supreme  Court  affirmed  petition- 
er's conviction,  holding  both  that  the  warrant  was  supported  by 
probable  cause  and  that  the  conduct  of  the  judge  who  signed  the 
warrant,  although  not  a  model  of  judicial  deportment,  had  satis- 
fied the  constitutional  requirements  of  detachment  and  neutrality. 
467  So.  2d  940  (1985). 

Respondent  argues  before  this  Court  that  even  if  the  judge 
failed  to  evaluate  the  request  for  the  warrant  in  a  neutral  and  de- 
tached fashion,  the  warrant  was  nonetheless  valid  because  it  was, 
in  fact,  supported  by  probable  cause.*  This  attempt  to  evade  re- 
view of  the  judge's  lack  of  independence  should  not  succeed.  In 


*Relying  on  Carroll  v.  United  States,  267  U.  S.  132  (1925),  Chambers  v. 
Maroney,  399  U.  S.  42  (1970),  and  Texas  v.  White,  423  U.  S.  67  (1975),  re- 
spondent also  argues  that  the  instant  case  involves  an  automobile  search  that 
is  supported  by  probable  cause  and  thus  no  search  warrant  was  required. 
Apart  from  my  view  that  automobile  searches  presenting  no  exigent  cir- 
cumstances should  be  fully  subject  to  the  Fourth  Amendment's  warrant 
requirement,  see,  e.  g.,  United  States  v.  Johns,  469  U.  S.  478,  488-489  (1985) 
(BRENNAN,  J.,  joined  by  MARSHALL,  J.,  dissenting);  United  States  v.  Ross, 
456  U.  S.  798,  836-837  (1982)  (MARSHALL,  J.,  joined  by  BRENNAN,  J.,  dis- 
senting); South  Dakota  v.  Opperman,  428  U.  S.  364,  384  (1976)  (MARSHALL, 
J.,  joined  by  BRENNAN  and  Stewart,  JJ.,  dissenting),  respondent  may  not  be 
heard  to  make  this  argument  since  it  appears  that  it  was  not  advanced  below, 
see,  e.  g.,  Illinois  v.  Gates,  462  U.  S.  213,  221-224  (1983). 


ORDERS  987 

984  BRENNAN,  J.,  dissenting 

Coolidge  v.  New  Hampshire,  403  U.  S.,  at  450-451,  we  firmly  re- 
jected the  argument  that  "the  existence  of  probable  cause  renders 
noncompliance  with  the  warrant  procedure  an  irrelevance."  In- 
deed, in  Coolidge  the  Court  declared  that  because  the  warrant 
was  not  issued  by  "the  neutral  and  detached  magistrate  required 
by  the  Constitution,  the  search  stands  on  no  firmer  ground  than  if 
there  had  been  no  warrant  at  all."  Id.,  at  453. 

As  the  transcript  of  the  suppression  hearing  clearly  demon- 
strates, the  judge  who  issued  the  warrant  to  search  petitioner's 
automobile,  although  formally  separate  from  law  enforcement  offi- 
cials, viewed  himself  as  a  facilitator  of  police  investigations  and  sim- 
ply acquiesced  in  police  requests,  without  giving  serious  and  inde- 
pendent consideration  to  the  facts  set  forth  in  supporting  affidavits. 
The  Court's  failure  to  grant  certiorari  in  this  case  suggests  that  our 
admonitions  that  probable  cause  must  be  determined  by  a  neutral 
and  detached  magistrate  are  hollow  pronouncements. 

I  find  the  Court's  refusal  to  take  this  case  particularly  disturb- 
ing in  light  of  the  good-faith  exception  to  the  Fourth  Amendment 
exclusionary  rule  created  by  United  States  v.  Leon,  468  U.  S. 
897  (1984).  In  Leon,  the  Court  held  that  physical  evidence  seized 
by  police  officers  reasonably  relying  upon  a  warrant  issued  by  a 
detached  and  neutral  magistrate  is  admissible  in  the  prosecution's 
case  in  chief,  even  though  a  reviewing  court  has  subsequently 
determined  that  the  warrant  was  defective  or  that  the  officers 
failed  to  demonstrate  when  applying  for  the  warrant  that  there 
was  probable  cause  to  conduct  the  search.  The  Court  justified 
its  holding  to  a  large  extent  on  the  special  protective  role 
that  a  neutral  and  detached  magistrate  plays  in  safeguarding 
the  Fourth  Amendment  right  against  unreasonable  searches  and 
seizures,  id.,  at  913-917.  In  fact,  the  Court  indicated  that 
suppression  of  evidence  is  appropriate  where  "the  magistrate 
[has]  abandoned  his  detached  and  neutral  role/'  id.,  at  926.  In 
my  dissent,  I  warned  that  creation  of  a  good-faith  exception 
implicitly  tells  magistrates  that  they  need  not  take  much  care 
in  reviewing  warrant  applications,  since  their  mistakes  will  have 
virtually  no  consequence,  id.,  at  956.  Today  the  Court  tacitly  in- 
forms magistrates  that  not  only  need  they  not  worry  about  mis- 
takes, they  also  need  no  longer  be  neutral  and  detached  in  their 
review  of  supporting  affidavits.  The  combined  message  of  Leon 
and  the  Court's  refusal  to  grant  certiorari  in  this  case  is  that  the 


988  OCTOBER  TERM,  1985 

November  12,  1985  474  U.  S. 

police  may  rely  on  the  magistrates  and  the  magistrates  may  rely 
on  the  police.  On  whom  may  citizens  rely  to  protect  their  Fourth 
Amendment  rights? 

I  would  grant  certiorari  and  summarily  reverse,  or  at  least  set 
the  case  for  oral  argument. 

No.  85-35.     GREBER  v.  UNITED  STATES.     C.  A.  3d  Cir.     Cer- 
tiorari denied.     Reported  below:  760  F.  2d  68. 

JUSTICE  WHITE,  dissenting. 

Petitioner  Greber  was  convicted  in  United  States  District  Court 
on  several  counts  of  making  false  statements  "in  any  matter 
within  the  jurisdiction  of  any  department  or  agency  of  the  United 
States."  See  18  U.  S.  C.  §  1001.  In  connection  with  these  con- 
victions, the  District  Court  refused  to  submit  the  question  of  the 
materiality  of  Greber's  statements  to  the  jury,  holding  that  ma- 
teriality was  a  question  of  law  to  be  decided  by  the  court.  The 
United  States  Court  of  Appeals  for  the  Third  Circuit  affirmed 
the  convictions  and  upheld  the  District  Court's  determination  that 
materiality  was  a  question  of  law.  See  760  F.  2d  68,  72-73  (1985). 
Other  Circuits  have  also  concluded  that  materiality  is  a  ques- 
tion of  law.  See,  e.  g.,  Nilson  Van  &  Storage  Co.  v.  Marsh,  755 
F.  2d  362,  367  (CA4),  cert,  denied,  ante,  p.  818;  United  States  v. 
Abadi,  706  F.  2d  178,  180  (CA6),  cert,  denied,  464  U.  S.  821 
(1983).  Two  Circuits,  however,  have  held  that  materiality  under 
§1001  is  a  question  of  fact  and  should  thus  be  submitted 
to  the  jury.  See  United  States  v.  Irwin,  654  F.  2d  671,  677, 
n.  8  (CA10  1981);  United  States  v.  Valdez,  594  F.  2d  725,  729 
(CA9  1979).  I  would  grant  certiorari  to  resolve  this  conflict. 

No.  85-46.  ROEDER  v.  TEXAS.  Ct.  Crim.  App.  Tex.  Certio- 
rari denied.  Reported  below:  688  S.  W.  2d  856. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  judg- 
ment below  so  that  the  court  below  can  determine  the  sentence, 
other  than  death,  that  may  be  appropriate. 


ORDERS  989 

474  U.  S.  November  12,  1985 

No.  85-58.  MORAN,  AS  FATHER  TO  HIS  MINOR  SON,  MORAN, 
ET  AL.  v.  PIMA  COUNTY  ET  AL.  Ct.  App.  Ariz.  Certiorari 
denied.  Reported  below:  145  Ariz.  183,  700  P.  2d  881. 

JUSTICE  WHITE,  dissenting. 

Petitioner  Moran  filed  this  suit  in  Pima  County  Superior  Court 
against  respondents  Pima  County,  Arizona,  and  various  of  its  law 
enforcement  officials.  In  his  complaint,  Moran  alleged  unlawful 
arrest,  detention,  and  excessive  use  of  force  and  sought  relief 
under  42  U.  S.  C.  §  1981  and  §  1983.  The  case  was  tried  to  a 
jury,  and  the  jury  awarded  Moran  $500  in  damages.  The  Supe- 
rior Court  summarily  denied  Moran's  motion  for  attorney's  fees 
under  42  U.  S.  C.  §  1988.  The  Arizona  Court  of  Appeals  affirmed 
this  denial,  concluding  in  part  that  the  "moral  victory"  that  the 
verdict  represented  was  not  sufficient  to  warrant  an  award  of 
attorney's  fees  under  §  1988.  See  145  Ariz.  183,  184,  700  P.  2d 
881,  882  (1985).  The  Supreme  Court  of  Arizona  denied  review. 

The  Arizona  Court  of  Appeals'  decision  in  this  case  is  in  accord 
with  Circuit  decisions  that  have  held  that  a  plaintiff  receiving  only 
nominal  damages  is  not  truly  prevailing  and  is  therefore  not  enti- 
tled to  attorney's  fees.  See,  e.  g.,  Fast  v.  School  Dist.  of  City 
of  Ladue,  712  F.  2d  379,  380  (CAS  1983);  Huntley  v.  Community 
School  Board  of  Brooklyn,  579  F.  2d  738,  742  (CA2  1978).  This 
conclusion,  however,  has  been  rejected  by  other  Circuits.  See 
Skoda  v.  Fontani,  646  F.  2d  1193,  1194  (CA7  1981)  (per  curiam); 
Burt  v.  Abel,  585  F.  2d  613,  617-618  (CA4  1978).  I  would  grant 
certiorari  to  resolve  this  conflict. 

No.  85-100.  MICHIGAN  v.  BLACKBURN.  Ct.  App.  Mich.  Cer- 
tiorari denied.  THE  CHIEF  JUSTICE  and  JUSTICE  WHITE  would 
grant  certiorari.  Reported  below:  135  Mich.  App.  509,  354  N.  W. 
2d  807. 

No.  85-5448.  WHITLEY  v.  BAIR,  WARDEN.  Sup.  Ct.  Va. 
Certiorari  denied. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentence  in  this  case. 


990  OCTOBER  TERM,  1985 

November  12,  18,  1985  474  U.  S. 

Rehearing  Denied 

No.  84-6799.     CARRIGAN  u  LASHLEY,  ante,  p.  834; 

No.  84-6806.  GORMONG  v.  LOCAL  613,  INTERNATIONAL 
BROTHERHOOD  OF  ELECTRICAL  WORKERS,  ET  AL.,  ante,  p.  834; 

No.  84-6824.     SPAN  v.  DELAINE,  ante,  p.  835; 

No.  84-6889.  OWENS  u  FREEMAN,  SUPERINTENDENT,  PENN- 
SYLVANIA CORRECTIONAL  INSTITUTION  AT  CAMP  HILL,  ET  AL., 
ante,  p.  838; 

No.  84-6954.  CAMPBELL  u  OHIO  DEPARTMENT  OF  JUSTICE 
ET  AL.,  ante,  p.  840; 

No.  84-7007.     BROWN  u  UNITED  STATES,  ante,  p.  842; 

No.  85-5003.     IN  RE  WHALEY,  ante,  p.  814; 

No.  85-5144.     OWENS  u  UNITED  STATES,  ante,  p.  857; 

No.  85-5202.     BROWN  u  ZANT,  ante,  p.  860; 

No.  85-5211.     KELLEY  u  UNITED  STATES,  ante,  p.  860; 

No.    85-5220.       PlNKERTON   V.    MCCOTTER,    DIRECTOR,    TEXAS 

DEPARTMENT  OF  CORRECTIONS,  ante,  p.  865; 
No.  85-5245.     FOSTER  u  SMITH  ET  AL.,  ante,  p.  861;  and 
No.  85-5268.     DiSiLVESTRO  u  UNITED  STATES,  ante,  p.  862. 

Petitions  for  rehearing  denied. 

NOVEMBER  18,  1985 
Appeals  Dismissed 

No.  85-216.     ROA  ET  AL.,  INDIVIDUALLY  AND  AS  GUARDIANS 

AD  LlTEM  FOR  ROA  V.  LODI  MEDICAL  GROUP,  INC. ,  ET  AL.  Ap- 
peal from  Sup.  Ct.  Cal.  dismissed  for  want  of  substantial  federal 
question.  JUSTICE  BRENNAN  and  JUSTICE  WHITE  would  note 
probable  jurisdiction  and  set  case  for  oral  argument.  Reported 
below:  37  Cal.  3d  920,  695  P.  2d  164. 

No.  85-342.  PAINTER  v.  ALASKA.  Appeal  from  Ct.  App. 
Alaska  dismissed  for  want  of  jurisdiction.  Treating  the  papers 
whereon  the  appeal  was  taken  as  a  petition  for  writ  of  certiorari, 
certiorari  denied.  Reported  below:  695  P.  2d  241. 

No.  85-5529.  PRENZLER  u  DEAN  FORWARDING  Co.,  INC. 
Appeal  from  Ct.  App.  Cal.,  4th  App.  Dist.,  dismissed  for  want  of 
jurisdiction.  Treating  the  papers  whereon  the  appeal  was  taken 
as  a  petition  for  writ  of  certiorari,  certiorari  denied. 

No.  85-5531.  MEYER  v.  OREGON.  Appeal  from  Ct.  App.  Ore. 
dismissed  for  want  of  jurisdiction.  Treating  the  papers  whereon 


ORDERS  991 

474  U.  S.  November  18,  1985 

the  appeal  was  taken  as  a  petition  for  writ  of  certiorari,  certiorari 
denied.     Reported  below:  73  Ore.  App.  344,  698  P.  2d  1054. 

No.  85-522.  ALLIED  BOND  &  COLLECTION  AGENCY  u  MASSA- 
CHUSETTS. Appeal  from  Sup.  Jud.  Ct.  Mass,  dismissed  for  want 
of  substantial  federal  question.  JUSTICE  POWELL  and  JUSTICE 
O'CONNOR  would  note  probable  jurisdiction  and  set  case  for  oral 
argument.  Reported  below:  394  Mass.  608,  476  N.  E.  2d  955. 

Certiorari  Granted —Vacated  and  Remanded 

No.  85-5113.  MINOR  v.  UNITED  STATES.  C.  A.  9th  Cir.  Mo- 
tion of  petitioner  for  leave  to  proceed  in  forma  pauperis  and  cer- 
tiorari granted.  Judgment  vacated  and  case  remanded  for  fur- 
ther consideration  in  light  of  Dowling  v.  United  States,  473  U.  S. 
207  (1985).  Reported  below:  756  F.  2d  731. 

Miscellaneous  Orders 

No.  A-323  (84-1244).  DAVIS  ET  AL.  v.  BANDEMER  ET  AL. 
D.  C.  S.  D.  Ind.  [Probable  jurisdiction  noted,  470  U.  S.  1083.] 
Appellants  having  reapplied  for  a  stay  in  this  case  pending  its  final 
resolution  in  this  Court  and  it  appearing  that  all  of  the  require- 
ments for  the  issuance  of  a  stay  are  satisfied,  the  application  is 
granted  and  it  is  ordered  that  the  judgment  of  the  District  Court 
for  the  Southern  District  of  Indiana  is  stayed  until  further  order  of 
the  Court. 

No.  A-355.  CHEESEMAN  ET  AL.  v.  UNITED  STATES.  Applica- 
tion to  vacate  a  stay  entered  by  the  United  States  Court  of  Ap- 
peals for  the  Second  Circuit,  presented  to  JUSTICE  MARSHALL, 
and  by  him  referred  to  the  Court,  denied. 

No.  D-504.  IN  RE  DISBARMENT  OF  HOWARD.  Disbarment 
entered.  [For  earlier  order  herein,  see  472  U.  S.  1024.] 

No.  D-515.  IN  RE  DISBARMENT  OF  KANTER.  Disbarment 
entered.  [For  earlier  order  herein,  see  473  U.  S.  931,] 

No.  D-516.  IN  RE  DISBARMENT  OF  McKABA.  Disbarment 
entered.  [For  earlier  order  herein,  see  473  U.  S.  931.] 

No.  D-531.  IN  RE  DISBARMENT  OF  CAMACHO.  It  is  ordered 
that  Francisco  M.  Camacho,  of  Mukwonago,  Wis.,  be  suspended 
from  the  practice  of  law  in  this  Court  and  that  a  rule  issue,  return- 
able within  40  days,  requiring  him  to  show  cause  why  he  should 
not  be  disbarred  from  the  practice  of  law  in  this  Court. 


992  OCTOBER  TERM,  1985 

November  18,  1985  474  U.  S. 

No.  D-532.  IN  RE  DISBARMENT  OF  HEFNER.  It  is  ordered 
that  Stephen  Frank  Hefner,  of  Sherman,  Tex. ,  be  suspended  from 
the  practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  84-1744.  HENDERSON  ET  AL.  v.  UNITED  STATES.  C.  A. 
9th  Cir.  [Certiorari  granted,  ante,  p.  900.]  Motion  of  petitioner 
Ruth  Freedman  for  leave  to  proceed  further  herein  in  forma  pau- 
peris  granted.  Motion  for  appointment  of  counsel  granted,  and  it 
is  ordered  that  Alex  Reisman,  Esquire,  of  San  Francisco,  Cal.,  be 
appointed  to  serve  as  counsel  for  petitioner  Ruth  Freedman  in  this 
case. 

No.  84-1922.  UNITED  STATES  v.  KOECHER.  C.  A.  2d  Cir. 
[Certiorari  granted,  ante,  p.  815.]  Motion  of  the  Solicitor  Gen- 
eral to  dispense  with  printing  the  joint  appendix  granted. 

No.  85-54.  LIBRARY  OF  CONGRESS  ET  AL.  v.  SHAW.  C.  A. 
D.  C.  Cir.  [Certiorari  granted,  ante,  p.  815.]  Motion  of  the 
Solicitor  General  to  dispense  with  printing  the  joint  appendix 
granted. 

No.  85-289.  UNITED  STATES  DEPARTMENT  OF  TRANSPORTA- 
TION ET  AL.  v.  PARALYZED  VETERANS  OF  AMERICA  ET  AL. 
C.  A.  D.  C.  Cir.  [Certiorari  granted,  ante,  p.  918.]  Motion  of 
the  Solicitor  General  to  dispense  with  printing  the  joint  appendix 
granted. 

No.  84-1993.  HYDE  v.  VAN  WORMER  ET  AL.,  ante,  p.  827. 
Motion  of  federal  respondents  for  award  of  damages  granted,  and 
damages  awarded  to  federal  respondents  only  in  the  amount  of 
$500  pursuant  to  this  Court's  Rule  49.2.  Motion  of  respondents 
Inland  Steel  Co.  et  al.  for  award  of  damages  granted,  and  dam- 
ages in  the  amount  of  $500  awarded  pursuant  to  this  Court's  Rule 
49.2.  Request  of  Inland  Steel  Co.  et  al.  for  award  of  double  costs 
pursuant  to  Rule  50.7  denied.  Motion  of  petitioner  for  award  of 
costs  and  fees  denied.  JUSTICE  BLACKMUN  dissents  from  the 
awards  of  damages. 

JUSTICE  BRENNAN,  with  whom  JUSTICE  MARSHALL  and  JUS- 
TICE STEVENS  join,  dissenting  from  award  of  damages. 

This  Court's  Rule  49.2  states  that  "[w]hen  an  appeal  or  petition 
for  writ  of  certiorari  is  frivolous,  the  Court  may  award  the  ap- 
pellee or  the  respondent  appropriate  damages."  The  Rule  sets 


ORDERS  993 

474  U.  S.  November  18,  1985 

no  standards  for  determining  when  a  petition  for  certiorari  is 
"frivolous,"  or  the  amount  of  damages  which  may  be  "appropri- 
ate." Absent  such  criteria,  I  believe  that  any  award  of  damages 
imposed  by  the  Court  can  only  be  arbitrary.  In  this  case,  the 
Court  has  decided  to  award  respondents  $500  apiece  in  damages. 
It  makes  no  effort  to  justify  this  award,  or  to  explain  how  it 
arrived  at  the  $500  figure.  For  these  reasons,  I  dissent  from  the 
award  of  damages. 

No.  85-552.  SAKAMOTO  ET  AL.  v.  DUTY  FREE  SHOPPERS, 
LTD.,  ET  AL.  C.  A.  9th  Cir.;  and 

No.  85-616.  SHARON  STEEL  CORP.  u  CITY  OF  FAIRMONT, 
WEST  VIRGINIA,  ET  AL.  Appeal  from  Sup.  Ct.  App.  W.  Va. 
The  Solicitor  General  is  invited  to  file  briefs  in  these  cases 
expressing  the  views  of  the  United  States. 

No.  85-556.  KEMP,  WARDEN  v.  DRAKE.  C.  A.  llth  Cir. 
Motion  of  respondent  for  leave  to  proceed  in  forma  pauperis 
granted. 

No.  85-5487.  SMITH  v.  SIELAFF,  DIRECTOR,  VIRGINIA  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  4th  Cir.  [Certiorari 
granted,  ante,  p.  918.]  Motion  for  appointment  of  counsel 
granted,  and  it  is  ordered  that  J.  Lloyd  Snook  III,  Esquire,  of 
Charlottes ville,  Va.,  be  appointed  to  serve  as  counsel  for  peti- 
tioner in  this  case. 

No.  85-5563.  FONDEL  v.  FORD  MOTOR  Co.  ET  AL.  C.  A.  6th 
Cir.  Motion  of  petitioner  for  leave  to  proceed  in  forma  pauperis 
denied.  Petitioner  is  allowed  until  December  9,  1985,  within 
which  to  pay  the  docketing  fee  required  by  Rule  45(a)  and  to  sub- 
mit a  petition  in  compliance  with  Rule  33  of  the  Rules  of  this 
Court. 

JUSTICE  BRENNAN,  JUSTICE  MARSHALL,  and  JUSTICE  STE- 
VENS, dissenting. 

For  the  reasons  expressed  in  Brown  v.  Herald  Co.,  464  U.  S. 
928  (1983),  we  would  deny  the  petition  for  writ  of  certiorari 
without  reaching  the  merits  of  the  motion  to  proceed  in  forma 
pauperis. 

No.  85-525.     IN  RE  FRYAR;  and 

No.  85-5504.  IN  RE  SCHMID.  Petitions  for  writs  of  mandamus 
denied. 


994  OCTOBER  TERM,  1985 

November  18,  1985  474  U.  S. 

Probable  Jurisdiction  Noted 

No.  85-250.  BLOCK,  SECRETARY  OF  AGRICULTURE  v.  CAS- 
TILLO ET  AL.  Appeal  from  D.  C.  S.  D.  Tex.  Probable  jurisdic- 
tion noted. 

Certiorari  Granted 

No.  85-546.  UNITED  STATES  u  MOTTAZ.  C.  A.  8th  Cir. 
Certiorari  granted.  Reported  below:  753  F.  2d  71. 

Certiorari  Denied.     (See  also  Nos.  85-342,  85-5529,  and  85-5531, 

supra.) 

No.  84-1894.  SADE  v.  CALIFORNIA.  Ct.  App.  Cal.,  1st  App. 
Dist.  Certiorari  denied. 

No.  84-6721.  JOHNSON  ET  AL.  v.  MCCOTTER,  DIRECTOR, 
TEXAS  DEPARTMENT  or  CORRECTIONS,  ET  AL.  C.  A.  5th  Cir. 
Certiorari  denied. 

No.  84-6817.  LEHMAN  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  756  F.  2d  725. 

No.  84-6919.  MILLER  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  570. 

No.  85-34.  CAUBLE  v.  UNITED  STATES.  C.  A.  5th  Cir.  Cer- 
tiorari denied.  Reported  below:  757  F.  2d  282. 

No.  85-51.  RANDLES  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  147. 

No.  85-69.     MILBURN  ET  AL.  v.  UNITED  STATES;  and 
No.  85-5232.     MILBURN  v.  UNITED  STATES.      C.  A.  8th  Cir. 
Certiorari  denied.     Reported  below:  759  F.  2d  1316. 

No.  85-136.  MULVEY  v.  PENNSYLVANIA.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  760  F.  2d  259. 

No.  85-157.  JACKSON,  AKA  ROE  v.  UNITED  STATES.  C.  A. 
4th  Cir.  Certiorari  denied.  Reported  below:  757  F.  2d  1486. 

No.  85-164.  WASHINGTON  ET  AL.  v.  UNITED  STATES  ET  AL. 
C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  759  F.  2d 
1353. 

No.  85-206.  PASCARELLA  v.  NEW  MEXICO.  Ct.  App.  N.  M. 
Certiorari  denied. 

No.  85-316,  OWEN  v.  JUDGE  OF  THE  COUNTY  COURT,  SCHE- 
NECTADY  COUNTY,  ET  AL.  Ct.  App.  N.  Y.  Certiorari  denied. 
Reported  below:  65  N.  Y.  2d  658,  481  N.  E.  2d  243. 


ORDERS  995 

474  U.  S.  November  18,  1985 

No.  85-361.  BYKOFSKY  v.  HESS  ET  AL.  Ct.  App.  N.  Y.  Cer- 
tiorari  denied.  Reported  below:  65  N.  Y.  2d  730,  481  N.  E.  2d 
569. 

No.  85-507.  COUNTY  SANITATION  DISTRICT  No.  2  OF  Los 
ANGELES  COUNTY  v.  Los  ANGELES  COUNTY  EMPLOYEES  ASSN., 
LOCAL  660,  ET  AL.  Sup.  Ct.  Cal.  Certiorari  denied.  Reported 
below:  38  Cal.  3d  564,  699  P.  2d  835. 

No.  85-517.  MILLER  ET  AL.  v.  CITY  OF  Los  ANGELES.  C.  A. 
9th  Cir.  Certiorari  denied.  Reported  below:  755  F.  2d  1390. 

No.  85-523.  ARANGO  ET  AL.  v.  COMPANIA  DOMINICANA  DE 
AVIACION.  C.  A.  llth  Cir.  Certiorari  denied.  Reported  below: 
761  F.  2d  1527. 

No.  85-524.  TUDOR  v.  GLAESMAN  ET  ux.  Ct.  App.  Kan. 
Certiorari  denied.  Reported  below:  10  Kan.  App.  2d  xxxviii. 

No.  85-533.  SILENT  HOIST  &  CRANE  Co.,  INC.  v.  DIRECTOR, 
DIVISION  OF  TAXATION.  Sup.  Ct.  N.  J.  Certiorari  denied.  Re- 
ported below:  100  N.  J.  1,  494  A.  2d  775. 

No.  85-540.  COLE  ET  AL.  v.  MCEVERS,  WARDEN.  C.  A.  7th 
Cir.  Certiorari  denied.  Reported  below:  767  F.  2d  925. 

No.  85-544.  SUBURBAN  FORD,  INC.,  ET  AL.  v.  FORD  MOTOR 
CREDIT  Co.  Sup.  Ct.  Kan.  Certiorari  denied.  Reported  below: 
237  Kan.  195,  699  P.  2d  992. 

No.  85-545.  WYRICK,  WARDEN,  ET  AL.  v.  PARTON.  C.  A.  8th 
Cir.  Certiorari  denied.  Reported  below:  766  F.  2d  336. 

No.  85-548.  AHO  v.  CALIFORNIA.  Ct.  App.  Cal.,  5th  App. 
Dist.  Certiorari  denied.  Reported  below:  166  Cal.  App.  3d  984, 
212  Cal.  Rptr.  686. 

No.  85-566.  ANDERSEN  ET  AL.  v.  CIBA-GEIGY  CORP.  ET  AL. 
C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  759  F.  2d 
1518. 

No.  85-575.  BARA  ET  AL.  v.  AURORA  CIVIL  SERVICE  COMMIS- 
SION OF  THE  CITY  OF  AURORA  ET  AL.  C.  A.  7th  Cir.  Certiorari 
denied.  Reported  below:  774  F.  2d  1166. 

No.  85-578.  ROYCE  INTERNATIONAL  BROADCASTING  Co.  v. 
FEDERAL  COMMUNICATIONS  COMMISSION.  C.  A.  D.  C.  Cir. 
Certiorari  denied.  Reported  below:  246  U.  S.  App.  D.  C.  44,  762 
F.  2d  138. 


996  OCTOBER  TERM,  1985 

November  18,  1985  474  U.  S. 

No.  85-651.  LEPMAN  v.  NEW  JERSEY  RACING  COMMISSION. 
Super.  Ct.  N.  J.,  App.  Div.  Certiorari  denied. 

No.  85-676.  BOCK  v.  NEW  YORK  ET  AL.  C.  A.  2d  Cir.  Cer- 
tiorari denied.  Reported  below:  760  F.  2d  253. 

No.  85-679.  WENDOLKOWSKI  v.  UNITED  STATES.  C.  A.  1st 
Cir.  Certiorari  denied.  Reported  below:  765  F.  2d  253. 

No.  85-5048.  CHILDRESS  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  929. 

No.  85-5091.  MASIELLO  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  909. 

No.  85-5115.  JORDAN  v.  UNITED  STATES  DEPARTMENT  OF 
STATE.  C.  A.  D.  C.  Cir.  Certiorari  denied.  Reported  below: 
245  U.  S.  App.  D.  C.  234,  759  F.  2d  960. 

No.  85-5154.  GOODLATAW,  PERSONAL  REPRESENTATIVE  FOR 
THE  ESTATE  OF  GOODLATAW  v.  ALASKA  ET  AL.  Sup.  Ct.  Alaska. 
Certiorari  denied.  Reported  below:  698  P.  2d  1190. 

No.  85-5216.  SMITH  v.  MASCHNER,  DIRECTOR,  KANSAS  STATE 
PENITENTIARY.  Sup.  Ct.  Kan.  Certiorari  denied.  Reported 
below:  237  Kan.  365,  699  P.  2d  521. 

No.  85-5286.  DANIELS  v.  PAPASAN  ET  AL.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  755  F.  2d  171. 

No.  85-5288.  QUAN  YOUNG  ET  AL.  v.  IMMIGRATION  AND  NAT- 
URALIZATION SERVICE.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  759  F.  2d  450. 

No.  85-5299.  CROOKS  v.  UNITED  STATES.  C.  A.  1st  Cir. 
Certiorari  denied.  Reported  below:  766  F.  2d  7. 

No.  85-5418.  ELMORE  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  935. 

No.  85-5471.  HOWELL  v.  MARYLAND.  Ct.  Sp.  App.  Md. 
Certiorari  denied.  Reported  below:  62  Md.  App.  278,  489  A.  2d 
55. 

No.  85-5489.  SEARCY  v.  GREER,  WARDEN.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  906. 

No.  85-5494.     THORNE  v.  WEST  VIRGINIA.      Sup.   Ct.   App. 

W.  Va.     Certiorari  denied.     Reported  below:  W.  Va.  

333  S.  E.  2d  817. 


ORDERS  997 

474  U.  S.  November  18,  1985 

No.  85-5495.  McGLORY  v.  YOKA.  Super.  Ct.  N.  J.,  App. 
Div.  Certiorari  denied. 

No.  85-5497.  ABBITT  v.  SAIED,  JUDGE,  ET  AL.  C.  A.  10th 
Cir.  Certiorari  denied. 

No.  85-5498.  HUNTER  v.  ILLINOIS.  Sup.  Ct.  111.  Certiorari 
denied.  Reported  below:  106  111.  2d  557. 

No.  85-5508.  HADDIX  v.  OHIO  LIQUOR  CONTROL  COMMISSION. 
Sup.  Ct.  Ohio.  Certiorari  denied. 

No.  85-5510.  BURTON  v.  WILSON  ET  AL.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  273. 

No.  85-5511.  BURTON  v.  SMITH.  C.  A.  8th  Cir.  Certiorari 
denied. 

No.  85-5514.  CUNNINGHAM  v.  SHAFER  ET  AL.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1169. 

No.  85-5518.  FLEMING  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied. 

No.  85-5519.  GLICK  u  LOCKHART,  DIRECTOR,  ARKANSAS  DE- 
PARTMENT OF  CORRECTIONS,  ET  AL.  C.  A.  8th  Cir.  Certiorari 
denied.  Reported  below:  769  F.  2d  471. 

No.  85-5521.  JEFFERSON  v.  MUNCY,  WARDEN,  ET  AL.  C.  A. 
4th  Cir.  Certiorari  denied.  Reported  below:  767  F.  2d  912. 

No.  85-5528.  ZIMMERMAN  v.  FULCOMER,  SUPERINTENDENT, 
STATE  CORRECTIONAL  INSTITUTION  AT  HUNTINGDON,  ET  AL. 
C.  A.  3d  Cir.  Certiorari  denied. 

No.  85-5556.  IN  RE  BURNLEY.  C.  A.  4th  Cir.  Certiorari 
denied.  Reported  below:  774  F.  2d  1154. 

No.  85-5569.  TUBBS  v.  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 

No.  85-5577.  ROTHSCHILD  v.  UNITED  STATES  SUPREME 
COURT  ET  AL.  C.  A.  llth  Cir.  Certiorari  denied. 

No.  85-5578.  MARSH  v.  OREGON.  C.  A.  9th  Cir.  Certiorari 
denied.  Reported  below:  772  F.  2d  912. 

No.  85-5581.  KOLMAN  v.  HECKLER,  SECRETARY  OF  HEALTH 
AND  HUMAN  SERVICES.  C.  A.  7th  Cir.  Certiorari  denied.  Re- 
ported below:  776  F.  2d  1049. 


998  OCTOBER  TERM,  1985 

November  18,  1985  474  U.  S. 

No.  85-5587.  JEMMOTT  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  914. 

No.  85-5588.  MAYS  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  1295. 

No.  85-5596.  ANDERSON  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  152. 

No.  85-5598.  HAKIM  v.  WOLVERINE  PACKING  Co.  ET  AL. 
C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  765  F.  2d 
145. 

No.  85-5604.  CLARK  v.  SOUTH  CAROLINA.  Sup.  Ct.  S.  C. 
Certiorari  denied.  Reported  below:  286  S.  C.  432,  334  S.  E. 
2d  121. 

No.  85-5631.  DAVIS  v.  UNITED  STATES.  C.  A.  7th  Cir.  Cer- 
tiorari denied.  Reported  below:  767  F.  2d  925. 

No.  85-5632.  CARTER  v.  SPANIOL,  CLERK  OF  THE  UNITED 
STATES  SUPREME  COURT.  C.  A.  D.  C.  Cir.  Certiorari  denied. 

No.  85-5639.  GRANT  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  909. 

No.  85-5644.  POLI  v.  MAZURKIEWICZ,  SUPERINTENDENT, 
STATE  CORRECTIONAL  INSTITUTION  AT  ROCKVIEW.  C.  A.  3d 
Cir.  Certiorari  denied. 

No.  84-6843.  SPAULDING  v.  HOLLAND,  WARDEN.  Sup.  Ct. 
App.  W.  Va.  Certiorari  denied.  JUSTICE  WHITE  and  JUSTICE 
BLACKMTJN  would  grant  certiorari. 

No.  85-56.  CONNOR  v.  UNITED  STATES  DEPARTMENT  OF 
LABOR,  BUREAU  OF  LABOR  STATISTICS.  C.  A.  Fed.  Cir.  Mo- 
tion of  petitioner  to  strike  brief  in  opposition  denied.  Certiorari 
denied.  Reported  below:  765  P.  2d  160. 

No.  85-188.  KEMP,  WARDEN  v.  BLAKE.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  523. 

JUSTICE  WHITE,  dissenting. 

This  case  presents  the  question  whether,  in  a  habeas  corpus 
proceeding  presenting  multiple  claims  for  relief,  an  appellate  court 
has  jurisdiction  to  review  an  order  of  the  district  court  without 
disposing  of  all  of  petitioner's  claims.  In  his  habeas  petition  to 


ORDERS  999 

998  WHITE,  J.,  dissenting 

the  District  Court,  respondent  presented  59  constitutional  claims. 
The  District  Court  found  that  three  of  these  claims  had  merit  and 
granted  the  writ,  but  expressly  refused  to  rule  on  the  remaining 
claims.  Blake  v.  Zant,  513  F.  Supp.  772  (SD  Ga.  1981).  On 
appeal,  the  Eleventh  Circuit  originally  held  that,  because  the 
District  Court's  order  did  not  finally  determine  all  of  the  claims 
presented  in  the  habeas  petition,  under  Federal  Rule  of  Civil 
Procedure  54(bV  there  was  no  final  judgment,  and  therefore, 
the  court  was  without  jurisdiction  to  consider  the  appeal  under 
28  U.  S.  C.  §  1291.2  Blake  v.  Zant,  737  F.  2d  925,  928  (1984). 
On  sua  sponte  reconsideration,  however,  the  court  determined 
that  a  district  court  order  granting  a  writ  of  habeas  corpus  is 
a  final  judgment  within  the  meaning  of  §  1291,  regardless  of  the 
district  court's  refusal  to  consider  the  remainder  of  petitioner's 
claims.  758  F.  2d  523,  524-525  (1985). 

This  later  decision  of  the  Eleventh  Circuit  conflicts  with  the 
practice  of  the  Eighth  Circuit.  That  court  has  held  that,  when  a 
district  court  grants  habeas  relief  to  a  petitioner  on  some  but  not 
all  of  the  claims  presented  for  consideration,  the  court  of  appeals 
does  not  have  jurisdiction  to  review  the  trial  court's  decision  un- 
less its  order  also  finally  disposes  of  the  remainder  of  petitioner's 
claims.  Stewart  v.  Bishop,  403  F.  2d  674,  679-680  (1968).  See 
also  Gray  v.  Swenson,  430  F.  2d  9,  11  (CAS  1970)  (Rule  54(b)  ap- 
plies to  prohibit  appeals  when  fewer  than  all  habeas  claims  are 


1  Rule  54(b)  provides  as  follows: 

"(b)  Judgment  Upon  MuUvple  Claims  or  Involving  Multiple  Parties. 
When  more  than  one  claim  for  relief  is  presented  in  an  action,  whether  as 
a  claim,  counterclaim,  cross-claim,  or  third-party  claim,  or  when  multiple 
parties  are  involved,  the  court  may  direct  the  entry  of  a  final  judgment  as  to 
one  or  more  but  fewer  than  all  of  the  claims  or  parties  only  upon  an  express 
determination  that  there  is  no  just  reason  for  delay  and  upon  an  express 
direction  for  entry  of  judgment.  In  the  absence  of  such  determination  and 
direction,  any  order  or  other  form  of  decision,  however  designated,  which 
adjudicates  fewer  than  all  the  claims  or  the  rights  and  liabilities  of  fewer  than 
all  the  parties  shall  not  terminate  the  action  as  to  any  of  the  claims  or  parties, 
and  the  order  or  other  form  of  decision  is  subject  to  revision  at  any  time 
before  the  entry  of  judgment  adjudicating  all  the  claims  and  the  rights  and 
liabilities  of  all  the  parties." 

2  Section  1291  provides,  in  pertinent  part,  as  follows: 

"The  courts  of  appeals  .  .  .  shall  have  jurisdiction  of  appeals  from  all  final 
decisions  of  the  district  courts  of  the  United  States  .  .  .  ." 


1000  OCTOBER  TERM,  1985 

November  18,  1985  474  U.  S. 

finally  determined  by  the  district  court's  order,  but  finding  all 
claims  to  have  been  decided).  Given  this  direct  conflict  among 
the  Courts  of  Appeals,  I  would  grant  certiorari  in  this  case. 

No.  85-242.  WEST  CENTRAL  COOPERATIVE  v.  UNITED 
STATES.  C.  A.  8th  Cir.  Certiorari  denied.  JUSTICE  WHITE, 
JUSTICE  BLACKMUN,  and  JUSTICE  O'CONNOR  would  grant  certio- 
rari. Reported  below:  758  F.  2d  1269. 

No.  85-5561.  EAST  v.  TEXAS.  Ct.  Crim.  App.  Tex.  Certio- 
rari denied.  Reported  below:  702  S.  W.  2d  606. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentence  in  this  case. 

Rehearing  Denied 

No.  84-1924.  CITY  OF  POMPANO  BEACH  v.  CAPALBO,  ante, 
p.  824; 

No.  84-6589.  BROFFORD  v.  MORRIS,  SUPERINTENDENT, 
SOUTHERN  OHIO  CORRECTIONAL  FACILITY,  ante,  p.  872; 

No.  84-6947.  CLARK  v.  BYRON  JACKSON  PUMP  Co.  ET  AL., 
ante,  p.  840; 

No.  84-6975.     ALDERMAN  v.  GEORGIA,  ante,  p.  911; 

No.  84-6984.     LIGHTSEY-V.  OKLAHOMA,  ante,  p.  841; 

No.  85-5006.  SOMMER  v.  COUNTY  OF  SUFFOLK  ET  AL.,  ante, 
p.  852; 

No.  85-5080.  SRUBAR  ET  AL.  v.  DEPARTMENT  OF  THE  TREAS- 
URY ET  AL.,  ante,  p.  855; 

No.  85-5083.  JOHNSON  v.  NEW  YORK  STATE  COURT  OFFICERS 
ASSN.  ET  AL.,  ante,  p.  855; 

No.  85-5089.  BAD  FOOT  v.  BOLT,  SHERIFF,  ET  AL.,  ante, 
p.  855; 

No.  85-5148.  BOWDEN  v.  IDAHO  DEPARTMENT  OF  HEALTH 
AND  WELFARE,  ante,  p.  805; 

No.  85-5161.     WHITTLESEY  v.  MARYLAND,  ante,  p.  858; 

No.  85-5188.  IDLEBIRD  v.  DIRECTOR,  OFFICE  OF  WORKERS' 
COMPENSATION  PROGRAMS,  ET  AL.,  ante,  p.  859;  and 

No.  85-5206.  STREICH  v.  UNITED  STATES,  ante,  p.  860.  Peti- 
tions for  rehearing  denied. 


ORDERS  1001 

474  U.  S.  November  22,  29,  December  2,  1985 

NOVEMBER  22,  1985 

Dismissal  Under  Rule  53 

No.  85-180.  AMERICAN  AIRLINES,  INC.,  ET  AL.  v.  UNITED 
STATES.  C.  A.  5th  Cir.  Certiorari  dismissed  under  this  Court's 
Rule  53.  Reported  below:  743  F.  2d  1114. 

NOVEMBER  29,  1985 

Dismissal  Under  Rule  53 

No.  84-1832.  ROCK  v.  ZINN,  JUDGE,  SECOND  JUDICIAL  DIS- 
TRICT. Sup.  Ct.  N.  M.  Certiorari  dismissed  under  this  Court's 
Rule  53. 

DECEMBER  2,  1985 

Appeals  Dismissed 

No.  85-506.  ASCANI,  INDIVIDUALLY  AND  ON  BEHALF  OF  THE 
ESTATE  OF  ASCANI,  ET  AL.  v.  HUGHES  ET  AL.  Appeal  from  Ct. 
App.  La.,  4th  Cir.,  dismissed  for  want  of  jurisdiction.  Treating 
the  papers  whereon  the  appeal  was  taken  as  a  petition  for  writ  of 
certiorari,  certiorari  denied.  Reported  below:  470  So.  2d  207. 

No.  85-583.  FAHEY  v.  BECKLEY  ET  AL.  Appeal  from  C.  A. 
7th  Cir.  dismissed  for  want  of  jurisdiction.  Treating  the  papers 
whereon  the  appeal  was  taken  as  a  petition  for  writ  of  certiorari, 
certiorari  denied. 

No.  85-551.  AMERICAN  FEDERATION  OF  GOVERNMENT  EM- 
PLOYEES, AFL-CIO,  ET  AL.  v.  REAGAN,  PRESIDENT  OF  THE 
UNITED  STATES,  ET  AL.  Appeal  from  D.  C.  D.  C.  dismissed  for 
want  of  jurisdiction. 

Certiorari  Granted— Vacated  and  Remanded 

No.  84-1815.  HOFFMAN  v.  ETI-QUETTE  ASSAF  LTD.  ET  AL. 
C.  A.  2d  Cir.  Certiorari  granted,  judgment  vacated,  and  case  re- 
manded for  further  consideration  in  light  of  Sedima,  S.  P.  R.  L. 
v.  Imrex  Co.,  473  U.  S.  479  (1985).  Reported  below:  760  F.  2d 
253. 

No.  85-5496.  TUCKER  v.  KEMP,  WARDEN.  C.  A.  llth  Cir. 
Motions  of  National  Legal  Aid  and  Defender  Association  et  al.  and 
Vivian  O.  Berger  et  al.  for  leave  to  file  briefs  as  amid  curiae 


1002  OCTOBER  TERM,  1985 

December  2,  1985  474  U.  S. 

granted.  Motion  of  petitioner  for  leave  to  proceed  in  forma 
pauperis  and  certiorari  granted.  Judgment  vacated  and  case  re- 
manded for  further  consideration  in  light  of  Caldwell  v.  Missis- 
sippi, 472  U.  S.  320  (1985).  Reported  below:  762  F.  2d  1480. 

No.  85-5503.  ROGERS  v.  OHIO.  Sup.  Ct.  Ohio.  Motion  of 
petitioner  for  leave  to  proceed  in  forma  pauperis  and  certiorari 
granted.  Judgment  vacated  and  case  remanded  for  further  con- 
sideration in  light  of  Caldwell  v.  Mississippi,  472  U.  S.  320  (1985). 
Reported  below:  17  Ohio  St.  3d  174,  478  N.  E.  2d  984. 

Miscellaneous  Orders 

No.  D-511.  IN  KE  DISBARMENT  OF  STOCK.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  473  U.  S.  930.] 

No.  D-533.  IN  RE  DISBARMENT  OF  EVANS.  It  is  ordered  that 
Levi  W.  Evans  III,  of  Philadelphia,  Pa.,  be  suspended  from  the 
practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  84-773.  BENDER  ET  AL.  v.  WILLIAMSPORT  AREA  SCHOOL 
DISTRICT  ET  AL.  C.  A.  3d  Cir.  [Certiorari  granted,  469  U.  S. 
1206.]  Motion  of  respondents  for  leave  to  file  a  supplemental 
brief  after  argument  granted. 

No.  84-871.  LOUISIANA  PUBLIC  SERVICE  COMMISSION  v.  FED- 
ERAL COMMUNICATIONS  COMMISSION  ET  AL.  C.  A.  4th  Cir. 
[Probable  jurisdiction  postponed,  472  U.  S.  1025]; 

No.  84-889.  CALIFORNIA  ET  AL.  v.  FEDERAL  COMMUNICA- 
TIONS COMMISSION  ET  AL.  C.  A.  4th  Cir.  [Certiorari  granted, 
472  U.  S.  1025]; 

No.  84-1054.  PUBLIC  UTILITIES  COMMISSION  OF  OHIO  ET  AL. 
v.  FEDERAL  COMMUNICATIONS  COMMISSION  ET  AL.  C.  A.  4th 
Cir.  [Certiorari  granted,  472  U.  S.  1025];  and 

No.  84-1069.  FLORIDA  PUBLIC  SERVICE  COMMISSION  v.  FED- 
ERAL COMMUNICATIONS  COMMISSION  ET  AL.  C.  A.  4th  Cir. 
[Certiorari  granted,  472  U.  S.  1026.]  Motion  of  the  Solicitor 
General  for  divided  argument  granted.  JUSTICE  POWELL  and 
JUSTICE  O'CONNOR  took  no  part  in  the  consideration  or  decision 
of  this  motion. 

No.  84-902.  WARDAIR  CANADA  INC.  v.  FLORIDA  DEPART- 
MENT OF  REVENUE.  Sup.  Ct.  Fla.  [Probable  jurisdiction  noted, 


ORDERS  1003 

474  U.  S.  December  2,  1985 

ante,  p.  943.]     Motion  of  appellant  to  dispense  with  printing  the 
joint  appendix  granted. 

No.  84-6646.  TURNER  v.  SJELAFF,  DIRECTOR,  VIRGINIA  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  4th  Cir.  [Certiorari 
granted,  471  U.  S.  1098.]  Further  consideration  of  motion  of 
petitioner  to  strike  ex  parte  affidavit  is  deferred  to  the  hearing 
of  the  case  on  the  merits. 

No.  85-202.  OFFSHORE  LOGISTICS,  INC.,  ET  AL.  v.  TALLEN- 
TIRE  ET  AL.  C.  A.  5th  Cir.  [Certiorari  granted,  ante,  p.  816.] 
Motion  of  Sonat  Offshore  Drilling,  Inc.,  et  al.  for  leave  to  file  a 
brief  as  amid  curiae  granted. 

No.  85-615.  CALIFORNIA  DEPARTMENT  OF  TRANSPORTATION 
v.  NAEGELE  OUTDOOR  ADVERTISING  COMPANY  OF  CALIFORNIA, 
INC.,  ET  AL.;  and 

No.  85-639.  DESERT  OUTDOOR  ADVERTISING,  INC.  v. 
NAEGELE  OUTDOOR  ADVERTISING  COMPANY  OF  CALIFORNIA, 
INC.  Sup.  Ct.  Cal.  The  Solicitor  General  is  invited  to  file  a  brief 
in  these  cases  expressing  the  views  of  the  United  States. 

No.  85-5189.  MCLAUGHLIN  v.  UNITED  STATES.  C.  A.  4th 
Cir.  [Certiorari  granted,  ante,  p.  944.]  Motion  for  appointment 
of  counsel  granted,  and  it  is  ordered  that  Stephen  J.  Cribari, 
Esquire,  of  Baltimore,  Md.,  be  appointed  to  serve  as  counsel  for 
petitioner  in  this  case. 

No.  85-5688.  JONES  v.  AMERICAN  POSTAL  WORKERS  UNION 
ET  AL.  C.  A.  D.  C.  Cir.  Motion  of  petitioner  for  leave  to  pro- 
ceed in  forma  pauperis  denied.  Petitioner  is  allowed  until  De- 
cember 23,  1985,  within  which  to  pay  the  docketing  fee  required 
by  Rule  45(a)  and  to  submit  a  petition  in  compliance  with  Rule  33 
of  the  Rules  of  this  Court. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

For  the  reasons  expressed  in  Brown  v.  Herald  Co.,  464  U.  S. 
928  (1983),  we  would  deny  the  petition  for  writ  of  certiorari 
without  reaching  the  merits  of  the  motion  to  proceed  in  forma 
pauperis. 

No.  85—5541.  IN  RE  BETKA.  Petition  for  writ  of  mandamus 
denied. 


1004  OCTOBER  TERM,  1985 

December  2,  1985  474  U.  S. 

Probable  Jurisdiction  Noted 

No.  85-521.  HECKLER,  SECRETARY  OF  HEALTH  AND  HUMAN 
SERVICES,  ET  AL.  u  PUBLIC  AGENCIES  OPPOSED  TO  SOCIAL 
SECURITY  ENTRAPMENT  ET  AL.  Appeal  from  D.  C.  E.  D.  Gal. 
Probable  jurisdiction  noted.  Reported  below:  613  F.  Supp.  558. 

Certiorari  Granted 

No.  85-298.  CONNOLLY  v.  BURT.  C.  A.  10th  Cir.  Certiorari 
granted.  Reported  below:  757  F.  2d  242. 

No.  85-499.  PAPASAN,  SUPERINTENDENT  OF  EDUCATION,  ET 
AL.  v.  ALLAIN,  GOVERNOR  OF  MISSISSIPPI,  ET  AL.  C.  A.  5th  Cir. 
Certiorari  granted.  Reported  below:  756  F.  2d  1087. 

No.  85-554.  UNITED  STATES  v.  HUGHES  PROPERTIES,  INC. 
C.  A.  Fed.  Cir.  Certiorari  granted.  Reported  below:  760  F.  2d 
1292. 

No.  85-588.  UNIVERSITY  OF  TENNESSEE  ET  AL.  v.  ELLIOTT. 
C.  A.  6th  Cir.  Certiorari  granted.  Reported  below:  766  F.  2d 
982. 

No.  85-619.  MERRELL  Dow  PHARMACEUTICALS  INC.  v. 
THOMPSON  ET  AL.,  AS  NEXT  FRIENDS  AND  GUARDIANS  OF 
THOMPSON,  ET  AL.  C.  A.  6th  Cir.  Certiorari  granted.  Re- 
ported below:  766  F.  2d  1005. 

No.  85-599.  UNITED  STATES  v.  AMERICAN  BAR  ENDOWMENT 
ET  AL.  C.  A.  Fed.  Cir.  Certiorari  granted.  JUSTICE  POWELL 
and  JUSTICE  O'CONNOR  took  no  part  in  the  consideration  or  deci- 
sion of  this  petition.  Reported  below:  761  F.  2d  1573. 

Certiorari  Denied.      (See  also  Nos.  85-506  and  85-583,  supra.) 
No.  84-6717.     HOLSEY  v.  MARYLAND.     Ct.  App.  Md.     Certio- 
rari denied.     Reported  below:  302  Md.  130,  486  A.  2d  173. 

No.  84-6760.  EDWARDS  v.  HARRIS,  WARDEN,  ET  AL.  C.  A. 
6th  Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  1007. 

No.  84-6841.  SPIESS  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  1201. 

No.  84-6892.  WILLIAMS,  AKA  ANTHONY,  ET  AL.  v.  UNITED 
STATES.  C.  A.  4th  Cir.  Certiorari  denied.  Reported  below: 
758  F.  2d  649. 


ORDERS  1005 

474  U.  S.  December  2,  1985 

No.  85-47.  WHITT,  EXECUTOR  OF  THE  ESTATE  OF  WHITT  v. 
COMMISSIONER  OF  INTERNAL  REVENUE.  C.  A.  llth  Cir.  Cer- 
tiorari  denied.  Reported  below:  751  F.  2d  1548. 

No.  85-109.  DEAN  v.  UNITED  STATES.  C.  A.  9th  Cir.  Cer- 
tiorari  denied.  Reported  below:  765  F.  2d  150. 

No.  85-175.  GARWOOD  v.  UNITED  STATES.  Ct.  Mil.  App. 
Certiorari  denied.  Reported  below:  20  M.  J.  148. 

No.  85-178.  DE  LE  PUENTE  v.  UNITED  STATES.  C.  A.  3d 
Cir.  Certiorari  denied.  Reported  below:  755  F.  2d  313. 

No.  85-179.  CALIFORNIA  ENERGY  RESOURCES  CONSERVATION 
AND  DEVELOPMENT  COMMISSION  u  BONNEVILLE  POWER  ADMIN- 
ISTRATION. C.  A.  9th  Cir.  Certiorari  denied.  Reported  below: 
754  F.  2d  1470. 

No.  85-199.  DELLINGER,  INC.,  ET  AL.  v.  UNITED  STATES. 
C.  A.  4th  Cir.  Certiorari  denied.  Reported  below:  760  F.  2d 
527. 

No.  85-220.  BURLINGTON  NORTHERN  RAILROAD  Co.  v. 
CHERNER,  JUDGE  OF  THE  TENTH  JUDICIAL  CIRCUIT  OF  ALA- 
BAMA. Sup.  Ct.  Ala.  Certiorari  denied.  Reported  below:  470 
So.  2d  1094. 

No.  85-241.     MCSURELY  ET  AL.  u  MCCLELLAN  ET  AL.;  and 
No.  85-420.      BRICK  v.  McSuRELY  ET  AL.      C.  A.  D.  C.  Cir. 

Certiorari  denied.      Reported  below:  243  U.  S.  App.  D.  C.  270, 

753  F.  2d  88. 

No.  85-260.  MANHATTAN  INDUSTRIES,  INC.  v.  GOLDSTEIN. 
C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  758  F.  2d 
1435. 

No.  85-333.  MODINE  MANUFACTURING  Co.  u  UNITED  STATES 
ENVIRONMENTAL  PROTECTION  AGENCY.  C.  A.  3d  Cir.  Certio- 
rari denied.  Reported  below:  770  F.  2d  1073. 

No.  85-350.  FARLEY  v.  ROBERTS.  Ct.  App.  Tex.,  6th  Sup. 
Jud.  Dist.  Certiorari  denied. 

No.  85-362.  CALIFORNIA  STATE  LANDS  COMMISSION  v. 
UNITED  STATES  ET  AL.  C.  A.  9th  Cir.  Certiorari  denied.  Re- 
ported below:  752  F.  2d  393. 


1006  OCTOBER  TERM,  1985 

December  2,  1985  474  U.  S. 

No.  85-398.  JONES  ET  AL.  u  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  766  F.  2d  994. 

No.  85-457.  WESTBROOK  v.  ARKANSAS.  Sup.  Ct.  Ark.  Cer- 
tiorari denied.  Reported  below:  286  Ark.  192,  691  S.  W.  2d  123. 

No.  85-490.  JOSEPH  ET  AL.  v.  NEW  ORLEANS  ELECTRICAL 
PENSION  AND  RETIREMENT  PLAN  ET  AL.  C.  A.  5th  Cir.  Cer- 
tiorari denied.  Reported  below:  754  F.  2d  628. 

No.  85-503.  SPARROW  u  HAJIMAHOLIS  ET  AL.  Ct.  App. 
D.  C.  Certiorari  denied. 

No.  85-527.  FAITH  CENTER,  INC.  v.  FEDERAL  COMMUNICA- 
TIONS COMMISSION  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  denied. 
Reported  below:  246  U.  S.  App.  D.  C.  43,  762  F.  2d  137. 

No.  85-571.  SIMPLOT  ET  AL.  u  STROBL.  C.  A.  2d  Cir.  Cer- 
tiorari denied.  Reported  below:  768  F.  2d  22. 

No.  85-572.  RINGSBY  TRUCK  LINES,  INC.  ,  ET  AL.  v.  TRUCK- 
ING EMPLOYERS,  INC.,  ET  AL.  C.  A.  9th  Cir.  Certiorari  denied. 
Reported  below:  767  F.  2d  934. 

No.  85-579.  WARREN  v.  LOCAL  1759,  AMERICAN  FEDERATION 
OF  GOVERNMENT  EMPLOYEES.  C.  A.  llth  Cir.  Certiorari 
denied.  Reported  below:  764  F.  2d  1395. 

No.  85-585.  DISTRICT  2,  UNITED  MINE  WORKERS  OF  AMER- 
ICA, ET  AL.  v.  HELEN  MINING  Co.  C.  A.  3d  Cir.  Certiorari 
denied.  Reported  below:  762  F.  2d  1155. 

No.  85-589.  HALL  ET  AL.  u  SIMCOX  ET  AL.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  766  F.  2d  1171. 

No.  85-590.  MAZZELLA  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  235. 

No.  85-594.  ON-DECK,  INC.  v.  ROSTAD  ET  AL.  Sup.  Ct. 
Minn.  Certiorari  denied.  Reported  below:  372  N.  W.  2d  717. 

No.  85-600.  SLOAN  ET  AL.  u  HICKS,  TRUSTEE  IN  BANK- 
RUPTCY OF  BECKNELL  &  GRACE  COAL  Co.,  INC.,  BANKRUPT. 
C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  761  F.  2d 
319. 


ORDERS  1007 

474  U.  S.  December  2,  1985 

No.  85-606.  DORAN  v.  TRAVELERS  INDEMNITY  Co.  C.  A. 
llth  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  1082. 

No.  85-610.  PIAROWSKI  v.  ILLINOIS  COMMUNITY  COLLEGE 
DISTRICT  515,  PRAIRIE  STATE  COLLEGE,  ET  AL.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  625. 

No.  85-611,  MCQUAY  ET  AL.  u  CITY  OP  JUNCTION  CITY, 
KANSAS,  ET  AL.  C.  A.  10th  Cir.  Certiorari  denied. 

No.  85-612.  PROGRAM  ENGINEERING,  INC.  v.  CALIFORNIA 
JOCKEY  CLUB.  C.  A.  9th  Cir.  Certiorari  denied.  Reported 
below:  765  F.  2d  149. 

No.  85-617.  KULLBERG  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  150. 

No.  85-618.  MILLER  ET  AL.  v.  HOGG  BROTHERS  PARTNERSHIP 
ET  AL.  C.  A.  8th  Cir.  Certiorari  denied.  Reported  below:  767 
F.  2d  929. 

No.  85-624.  CARD  ALAN  v.  VAUGHN  ET  AL.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  662. 

No.  85-627.  FRYE  v.  UNITED  STEELWORKERS  OF  AMERICA 
ET  AL.  C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  767 
F.  2d  1216. 

No.  85-628.  BIPPUS  ET  AL.  u  LOCAL  100  OF  THE  INTER- 
NATIONAL BROTHERHOOD  OF  TEAMSTERS,  CHAUFFEURS,  WARE- 
HOUSEMEN &  HELPERS  OF  AMERICA,  ET  AL.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  165. 

No.  85-629.  CUNNINGHAM  v.  HOUSING  AUTHORITY  OF  THE 
CITY  OF  OPELOUSAS,  DBA  OPELOUSAS  HOUSING  AUTHORITY. 
C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  764  F.  2d 
1097. 

No.  85-630.  GRIMMER  ET  AL.  v.  HARDEN.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  1158. 

No.  85-644.  NAZARIAN  u  NAZARIAN.  Ct.  App.  Cal.,  2d  App. 
Dist.  Certiorari  denied. 

No.  85-647.  MANN  u  UNITED  STATES.  C.  A.  9th  Cir.  Cer- 
tiorari denied.  Reported  below:  772  F.  2d  915. 


1008  OCTOBER  TERM,  1985 

December  2,  1985  474  U.  S. 

No.  85-648.  FULLER  v.  UNITED  STATES  ET  AL.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  767  F.  2d  937. 

No.  85-649.  INTERNATIONAL  LONGSHOREMEN'S  ASSN., 
AFL-CIO,  LOCAL  1414,  ET  AL.  v.  WARD.  C.  A.  llth  Cir.  Cer- 
tiorari denied. 

No.  85-650.  McCoRSTiN  u  UNITED  STATES  STEEL  CORP. 
C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  765  F.  2d 
152. 

No.  85-661.  RUSSELL  ET  AL.  v.  UNITED  STATES.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  161. 

No.  85-662.  TEXAS  v.  UNITED  STATES  DEPARTMENT  OF  EN- 
ERGY ET  AL.  C.  A.  5th  Cir.  Certiorari  denied.  Reported 
below:  764  F.  2d  278. 

No.  85-687.  KELLY  v.  WHITING,  JUDGE,  COURT  OF  COMMON 
PLEAS  OF  CUYAHOGA  COUNTY,  ET  AL.  Sup.  Ct.  Ohio.  Certio- 
rari denied.  Reported  below:  17  Ohio  St.  3d  91,  477  N.  E.  2d 
1123,  and  17  Ohio  St.  3d  254,.  479  N.  E.  2d  254. 

No.  85-689.  MUTH  v.  SHOWERS.  Super.  Ct.  Pa.  Certiorari 
denied.  Reported  below:  343  Pa.  Super.  628,  494  A.  2d  492. 

No.  85-696.  HELFRICHT  v.  NEW  JERSEY.  Super.  Ct.  N.  J. , 
App.  Div.  Certiorari  denied. 

No.  85-699.  DESANTIS  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  150. 

No.  85-707.  CITY  OF  PHILADELPHIA  v.  BOROUGH  OF  GLASS- 
BORO  ET  AL.  Sup.  Ct.  N.  J.  Certiorari  denied.  Reported 
below:  100  N.  J.  134,  495  A.  2d  49. 

No.  85-710.  RANDELL  ET  AL.  v.  UNITED  STATES.  C.  A.  2d 
Cir.  Certiorari  denied.  Reported  below:  779  F.  2d  35. 

No.    85-719.        BORNTRAGER    V.    STEVAS,     FORMER    CLERK    OF 

SUPREME  COURT  OF  UNITED  STATES,  ET  AL.      C.  A.  8th  Cir. 
Certiorari  denied.     Reported  below:  772  F.  2d  419. 

No.  85-722.  KAPRELIAN  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  893. 


ORDERS  1009 

474  U.  S.  December  2,  1985 

No.  85-726.  BARLOW  ET  AL.  v.  BREWERY  WORKERS  LOCAL 
UNION  No.  1010  ET  AL.  C.  A.  4th  Cir.  Certiorari  denied. 

No.  85-5064.  STURM  v.  CALIFORNIA.  Sup.  Ct.  Cal.  Certio- 
rari denied. 

No.  85-5065.  MATECKI  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  150. 

No.  85-5084.  ROSSER-EL  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  85-5106.  FREDERICK  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  925. 

No.  85-5121.  FREELAND  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  152. 

No.  85-5182.  LAMP  v.  FARRIER.  C.  A.  8th  Cir.  Certiorari 
denied.  Reported  below:  763  F.  2d  994. 

No.  85-5209.  KLEIN  v.  UNITED  STATES.  Ct.  Mil.  App.  Cer- 
tiorari denied.  Reported  below:  20  M.  J.  26. 

No.  85-5222.  MALLOY  u  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  979. 

No.  85-5325.  REMIGIO,  AKA  CUERVO  v.  UNITED  STATES. 
C.  A.  10th  Cir.  Certiorari  denied.  Reported  below:  767  F.  2d 
730. 

No.  85-5343.  GORDON  v.  NEW  YORK.  App.  Div.,  Sup.  Ct. 
N.  Y.,  2d  Jud.  Dept.  Certiorari  denied.  Reported  below:  111 
App.  Div.  2d  409,  489  N.  Y.  S.  2d  608. 

No.  85-5349.  PRAYLOW  v.  MARTIN,  ASSISTANT  REGIONAL  AD- 
MINISTRATOR, MIDLANDS  CORRECTIONAL  REGION,  ET  AL.  C.  A. 
4th  Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  179. 

No.  85-5384.  GAERTNER  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  787. 

No.  85-5468.  RODMAN  v.  MCMACKIN,  SUPERINTENDENT, 
HOCKING  CORRECTIONAL  FACILITY.  C.  A.  D.  C.  Cir.  Certio- 
rari denied. 

No.  85-5475.  HUGHES  v.  RHODE  ISLAND.  Sup.  Ct.  R.  I. 
Certiorari  denied.  Reported  below:  494  A.  2d  85. 


1010  OCTOBER  TERM,  1985 

December  2,  1985  474  U.  S. 

No.  85-5509.  CoRBETT  u  MINTZES,  WARDEN.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  905. 

No.  85-5524.  McCoRMiCK  u  CAIN,  WARDEN.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  163. 

No.  85-5525.  VEALE  ET  AL.  v.  VEALE  ET  AL.  C.  A.  1st  Cir. 
Certiorari  denied. 

No.  85-5527.  DAVIS  v.  FULCOMER,  SUPERINTENDENT,  STATE 
CORRECTIONAL  INSTITUTION  AT  HUNTINGDON.  C.  A.  3d  Cir. 
Certiorari  denied. 

No.  85-5530.  CAREY  v.  MINNESOTA.  C.  A.  8th  Cir.  Certio- 
rari denied.  Reported  below:  767  F.  2d  440. 

No.  85-5536.  GANS  v.  MUNDY  ET  AL.  C:  A.  3d  Cir.  Certio- 
rari denied.  Reported  below:  762  F.  2d  338. 

No.  85-5539.  BUCHANAN  v.  REES,  SUPERINTENDENT,  KEN- 
TUCKY STATE  REFORMATORY.  C.  A.  6th  Cir.  Certiorari  denied. 
Reported  below:  772  F.  2d  905. 

No.  85-5540.  ABDUL-RAHIM  v.  HARDCASTLE,  SHERIFF. 
C.  A.  llth  Cir.  Certiorari  denied. 

No.  85-5544.     WELCH  v.  OHIO;  and 

No.  85-5545.  PATTERSON  u  OHIO.  Sup.  Ct.  Ohio.  Certio- 
rari denied.  Reported  below:  18  Ohio  St.  3d  88,  480  N.  E.  2d 
384. 

No.    85-5547.        SPELLMAN   V.    INTEGON    GENERAL    INSURANCE 

CORP.     C.  A.  4th  Cir.     Certiorari  denied.     Reported  below:  767 
F.  2d  913. 

No.  85-5550.  ADAMS  u  BRIERTON  ET  AL.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  752  F.  2d  546. 

No.  85-5560.  GANNON  v.  ARIZONA.  Sup.  Ct.  Ariz.  Certio- 
rari denied. 

No.  85-5562.  ALMON  v.  SHARP  ET  AL.  Sup.  Ct.  Ala.  Certio- 
rari denied. 

No.  85-5566.  LOVELACE  v.  LOCKHART,  DIRECTOR,  ARKANSAS 
DEPARTMENT  OF  CORRECTION.  C.  A.  8th  Cir.  Certiorari  de- 
nied. Reported  below:  765  F.  2d  742. 


ORDERS  1011 

474  U.  S.  December  2,  1985 

No.  85-5568.  McLAURiN  v.  SYRACUSE  UNIVERSITY  ET  AL. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  157. 

No.  85-5570.  WILLIAMS  v.  MAGGIO,  WARDEN.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  917. 

No.  85-5573.  TURNER  v.  NORTH  CAROLINA  DEPARTMENT  OF 
HUMAN  RESOURCES,  DIVISION  OF  SERVICES  FOR  THE  BLIND, 
ET  AL.  C.  A.  4th  Cir.  Certiorari  denied. 

No.  85-5576.  WHIGHAM  v.  NEW  YORK  TELEPHONE.  C.  A.  2d 
Cir.  Certiorari  denied.  Reported  below:  779  F.  2d  37. 

No.  85-5583.  BURTON  v.  SARGENT,  WARDEN.  C.  A.  8th  Cir. 
Certiorari  denied. 

No.  85-5584.  BURTON  v.  LOCKHART,  DIRECTOR,  ARKANSAS 
DEPARTMENT  OF  CORRECTION.  C.  A.  8th  Cir.  Certiorari  de- 
nied. Reported  below:  767  F.  2d  929. 

No.  85-5585.  JONES  v.  GREER,  WARDEN.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1167. 

No.  85-5590.  MORRIS  u  McCoTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 
Reported  below:  772  F.  2d  902. 

No.  85-5592.  RIDLEY  v.  GOLDMAN  ET  AL.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  926. 

No.  85-5593.  ISADORE  v.  KINCHELOE,  SUPERINTENDENT, 
WASHINGTON  STATE  REFORMATORY.  C.  A.  9th  Cir.  Certiorari 
denied.  Reported  below:  767  F.  2d  932. 

No.  85-5601.  BURNLEY  v.  SUPERINTENDENT  OF  THE  CAPRON 
CORRECTIONAL  UNIT.  Sup.  Ct.  Va.  Certiorari  denied. 

No.  85-5602.  SNOWDEN  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  393. 

No.  85-5603.  PHELPS  v.  DUCKWORTH,  WARDEN,  ET  AL. 
C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  772  F.  2d 
1410. 

No.  85-5605.  A.  E.  R.,  A  CHILD  v.  FLORIDA.  Dist.  Ct.  App. 
Fla.,  2d  Dist.  Certiorari  denied.  Reported  below:  464  So.  2d 
152. 


1012  OCTOBER  TERM,  1985 

December  2,  1985  474  U.  S. 

No.  85-5611.  WOOD  u  PENNSYLVANIA.  Super.  Ct.  Pa.  Cer- 
tiorari  denied.  Reported  below:  341  Pa.  Super.  622,  491  A.  2d 
923. 

No.  85-5612.  SHAW  v.  HUNT  ET  AL.  C.  A.  4th  Cir.  Certio- 
rari  denied.  Reported  below:  767  F.  2d  913. 

No.  85-5613.  PRINCE  v.  McCoTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 
Reported  below:  772  F.  2d  902. 

No.  85-5614.  MIDWIFE  ET  AL.  v.  DIRECTOR,  STATE  DEPART- 
MENT OF  SOCIAL  SERVICES.  Ct.  App.  Gal.,  4th  App.  Dist.  Cer- 
tiorari denied. 

No.  85-5616.  CUSHING-GALE  v.  SMITH,  SUPERINTENDENT, 
ATTICA  CORRECTIONAL  FACILITY.  C.  A.  2d  Cir.  Certiorari 
denied. 

No.  85-5618.  EVATT  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  169. 

No.  85-5629.  BURDEN  u  BOLGER,  POSTMASTER  GENERAL  OF 
THE  UNITED  STATES.  C.  A.  7th  Cir.  Certiorari  denied.  Re- 
ported below:  774  F.  2d  1167. 

No.  85-5630.  GHOLSTON  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  165. 

No.  85-5638.  BUSH  v.  UNITED  STATES.  C.  A.  7th  Cir.  Cer- 
tiorari denied.  Reported  below:  765  F.  2d  683. 

No.  85-5641.  BERTONIERE  v.  UNITED  STATES.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  772  F.  2d  916. 

No.  85-5645.  PETTIT  u  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  1351. 

No.  85-5646.  SwiCEGOOD  u  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  936. 

No.  85-5647.  WILSON  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  915. 

No.  85-5652.  VERDON  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  902. 


ORDERS  1013 

474  U.  S.  December  2,  1985 

No.  85-5654.  STERLEY  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  764  F.  2d  530. 

No.  85-5655.  PATTERSON  v.  BUENA  VISTA  DISTRIBUTION  Co. 
ET  AL.  C.  A.  llth  Cir.  Certiorari  denied. 

No.  85-5669.  MOFFITT  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  85-5672.  HART  v.  RISLEY,  WARDEN,  ET  AL.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  772  F.  2d  911. 

No.  85-5674.  VIDO  v.  UNITED  STATES.  C.  A.  2d  Cir.  Cer- 
tiorari denied.  Reported  below:  779  F.  2d  37. 

No.  85-5677.  EISSA  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied.  Reported  below:  485  A.  2d  610. 

No.  85-5692.  MURIEL  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  779  F.  2d  36. 

No.  85-5734.  SIMON  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  524. 

No.  85-5740.  ADAMS  v.  UNITED  STATES.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  771  F.  2d  783. 

No.  85-5743.  WILLIAMS  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1167. 

No.  85-5745.  HINKE  v.  WORKERS'  COMPENSATION  APPEALS 
BOARD  ET  AL.  Ct.  App.  Cal.,  1st  App.  Dist.  Certiorari  denied. 

No.  85-331.  ISRAEL,  WARDEN  v.  WALBERG.  C.  A.  7th  Cir. 
Motion  of  respondent  for  leave  to  proceed  in  forma  pauperis 
granted.  Certiorari  denied.  Reported  below:  766  F.  2d  1071. 

No.  85-395,  LOCKHART,  DIRECTOR,  ARKANSAS  DEPARTMENT 
OF  CORRECTION  v.  COLLINS.  C.  A.  8th  Cir.  Motion  of  respond- 
ent for  leave  to  proceed  in  forma  pauperis  granted.  Certiorari 
denied.  Reported  below:  754  F.  2d  258. 

No.  85-500.  CARROLL  ET  AL.  v.  ALBERTS  ET  AL.  Sup.  Jud. 
Ct.  Mass.  Motion  of  General  Council  on  Finance  and  Administra- 
tion of  the  United  Methodist  Church  et  al.  for  leave  to  file  a  brief 
as  amid  curiae  granted.  Certiorari  denied.  JUSTICE  BRENNAN 


1014  OCTOBER  TERM,  1985 

December  2,  1985  474  U.  S. 

and  JUSTICE  WHITE  would  grant  certiorari.     Reported  below:  395 
Mass.  59,  479  N.  E.  2d  113. 

No.  85-609.  WANSONG  v.  WANSONG.  Sup.  Jud.  Ct.  Mass. 
Certiorari  denied.  JUSTICE  BRENNAN  would  grant  certiorari. 
Reported  below:  395  Mass.  154,  478  N.  E.  2d  1270. 

No.  85-5606.  DAVIS  v.  INDIANA.  Sup.  Ct.  Ind.  Certiorari 
denied.  Reported  below:  477  N.  E.  2d  889. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentence  in  this  case. 

Rehearing  Denied 

No.  84-1534.  LUTJEHARMS,  COMMISSIONER  OF  EDUCATION  OF 
NEBRASKA,  ET  AL.  v.  ROSE,  AS  NEXT  FRIEND  OF  ROSE,  ante, 
p.  817; 

No.  84-1559.  UNITED  VAN  LINES,  INC.  v.  HUNTER  ET  AL., 
ante,  p.  863; 

No.  84-1666.  CUMMINGS  v.  UNITED  STATES  ET  AL.,  ante, 
p.  817; 

No.  84-1759.  T.  G.  &  Y.  STORES,  INC.  v.  LUSBY  ET  AL.,  ante, 
p.  818; 

No.  84-1845.  SORENSEN  v.  FITZGERALD,  TRUSTEE,  ante, 
p.  918; 

No.  84-1847.  LANDES  v.  DEPARTMENT  OF  JUSTICE,  ante, 
p.  821; 

No.  84-1869.  MARCONE  u  PENTHOUSE  INTERNATIONAL, 
LTD.,  ante,  p.  864; 

No.  84-1926.     REID  ET  AL.  v.  GHOLSON  ET  AL.,  ante,  p.  824; 

No.  84-1940.     Dow  v.  UNITED  VAN  LINES  ET  AL.,  ante,  p.  825; 

No.  84-1976.     IN  RE  WALTON,  ante,  p.  814; 

No.  84-2036.  EL  SHAHAWY  v.  SARASOTA  COUNTY  PUBLIC 
HOSPITAL  BOARD,  ante,  p.  829; 

No.  84-6768.  ZLOMKE  v.  FLYING  TIGER  LINE,  INC.,  ET  AL., 
ante,  p.  833;  and 

No.  84-6771.  ROACH  v.  MARTIN,  WARDEN,  ET  AL.,  ante, 
p.  865.  Petitions  for  rehearing  denied. 


ORDERS  1015 

474  U.  S.  December  2,  6,  1985 

No.  84-6818.     COOMBS  v.  McGARRY  ET  AL.,  ante,  p.  835; 

No.  84-6823.     WALKER  u  GEORGIA,  ante,  p.  865; 

No.  84-6832.  RUCKER  v.  CITY  OF  ST.  Louis  ET  AL.,  ante, 
p.  804; 

No.  84-6851.  BETKA  v.  CITY  OF  WEST  LINN  ET  AL.,  ante, 
p.  836; 

No.  84-6861.     MATHIS  v.  KEMP,  WARDEN,  ante,  p.  865; 

No.  84-6864.     BUSBY  u  LOUISIANA,  ante,  p.  873; 

No.  84-6865.  RUCKER  v.  CITY  OF  ST.  Louis  ET  AL.,  ante, 
p.  805; 

No.  84-6866.     BREEZE  u  UNITED  STATES,  ante,  p.  875; 

No.  84-6922.  CAWLEY  v.  BOARD  OF  REGENTS  OF  THE  UNI- 
VERSITY OF  MICHIGAN  ET  AL.,  ante,  p.  839; 

No.  84-6957.  AUGUSTYNIAK  u  KOCH,  MAYOR  OF  THE  CITY  OF 
NEW  YORK,  ET  AL.,  ante,  p.  840; 

No.  84-6958.  ROBINSON  u  COOKE,  WARDEN,  ET  AL.,  ante, 
p.  840; 

No.  84-6970.     DAMON  v.  SOUTH  CAROLINA,  ante,  p.  865; 

No.  84-6990.  CARRION  v.  NEW  YORK  CITY  HEALTH  AND  HOS- 
PITALS CORP.  ET  AL.,  ante,  p.  842; 

No.  84-7002.     DEL  VECCHIO  v.  ILLINOIS,  ante,  p.  883; 

No.  85-66.     FLORIDA  v.  ARANGO,  ante,  p.  806; 

No.  85-218.  LUXURY  BLANKETS,  INC.,  ET  AL.  u  UNITED 
STATES,  ante,  p.  849; 

No.  85-258.  MILLER  v.  INTERNATIONAL  TELEPHONE  &  TELE- 
GRAPH CORP.,  ante,  p.  851; 

No.  85-5010.      MIHAL  ET  AL.  v.  SARGIS  ET  AL.,  ante,  p.  803; 

No.  85-5050.  VAN  HORN  v.  HECKLER,  SECRETARY  OF 
HEALTH  AND  HUMAN  SERVICES,  ante,  p.  854; 

No.  85-5067.     BOVEE  v.  UNITED  STATES,  ante,  p.  854; 

No.  85-5174.     PHELPS  v.  SOVRAN  BANK,  ante,  p.  858; 

No.  85-5218.     BETKA  v.  SMITH  ET  AL.,  ante,  p.  860; 

No.  85-5308.  THOMAS  v.  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS,  ET  AL.,  ante,  p.  935;  and 

No.  85-5346.  IN  RE  KRAHN,  ante,  p.  899.  Petitions  for  re- 
hearing denied. 

DECEMBER  6,  1985 

Miscellaneous  Order 

No.  A-440.  GUZMON  v.  TEXAS.  Application  for  stay  of  exe- 
cution of  sentence  of  death  scheduled  for  Monday,  December  9, 


1016  OCTOBER  TERM,  1985 

December  6,  9,  1985  474  U.  S. 

1985,  presented  to  JUSTICE  WHITE,  and  by  him  referred  to  the 
Court,  is  granted  pending  the  filing  of  a  petition  for  writ  of  cer- 
tiorari  on  or  before  January  6,  1986.  In  the  event  the  petition 
for  writ  of  certiorari  is  filed  by  said  date,  this  order  is  to  con- 
tinue pending  the  disposition  of  the  petition  for  writ  of  certiorari. 
Should  the  petition  for  writ  of  certiorari  be  denied,  this  stay  ter- 
minates automatically.  In  the  event  the  petition  for  writ  of  cer- 
tiorari is  granted,  this  stay  shall  continue  pending  the  issuance  of 
the  mandate  of  this  Court. 

DECEMBER  9,  1985 

Appeal  Dismissed 

No.  85-5685.  HAMILTON  v.  CALIFORNIA.  Appeal  from  Sup. 
Ct.  Cal.  dismissed  for  want  of  substantial  federal  question. 

Vacated  and  Remanded  After  Certiorari  Granted 

No.  84-1736.  HIJAR,  SUPERINTENDENT,  FEDERAL  PRISON 
CAMP  AT  BORON,  CALIFORNIA  v.  BURRUS.  C.  A.  9th  Cir.  [Cer- 
tiorari granted,  ante,  p.  816.]  Judgment  vacated  and  case  re- 
manded to  the  United  States  District  Court  for  the  Northern  Dis- 
trict of  California  with  instructions  to  vacate  the  injunction  and  to 
dismiss  the  cause  as  moot. 

Miscellaneous  Orders 

No.  A-353.  ERNEST  v.  UNITED  STATES  ATTORNEY  FOR  THE 
SOUTHERN  DISTRICT  OF  ALABAMA  ET  AL.  Application  for  an 
injunction  or  writ  of  habeas  corpus,  addressed  to  JUSTICE 
REHNQUIST  and  referred  to  the  Court,  denied.  Motion  to  recuse 
JUSTICE  POWELL  denied. 

No.  D-523.  IN  RE  DISBARMENT  OF  GANTT.  Richard  Allison 
Gantt,  of  Greenville,  S.  C.,  having  requested  to  resign  as  a 
member  of  the  Bar  of  this  Court,  it  is  ordered  that  his  name 
be  stricken  from  the  roll  of  attorneys  admitted  to  practice  before 
the  Bar  of  this  Court.  The  rule  to  show  cause,  heretofore  issued 
on  October  15,  1985  [ante,  p.  896],  is  hereby  discharged. 

No.  D-534.  IN  RE  DISBARMENT  OF  PESNER.  It  is  ordered 
that  David  I.  Pesner,  of  Spring  Valley,  N.  Y.,  be  suspended  from 
the  practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 


ORDERS  1017 

474  U.  S.  December  9,  1985 

No.  D-535.  IN  RE  DISBARMENT  OF  ROMANO.  It  is  ordered 
that  Salvatore  L.  Romano,  Jr.,  of  Providence,  R.  I.,  be  suspended 
from  the  practice  of  law  in  this  Court  and  that  a  rule  issue,  return- 
able within  40  days,  requiring  him  to  show  cause  why  he  should 
not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  29,  Orig.  TEXAS  ET  AL.  v.  COLORADO.  Stipulated  motion 
for  dismissal  granted  and  cause  dismissed  with  prejudice.  JUS- 
TICE MARSHALL  took  no  part  in  the  consideration  or  decision  of 
this  case.  [For  earlier  order  herein,  see,  e.  g.,  391  U.  S.  901.] 

No.  84-1273.  REGENTS  OF  THE  UNIVERSITY  OF  MICHIGAN  u 
EWING.  C.  A.  6th  Cir.  [Certiorari  granted,  470  U.  S.  1083.] 
Motion  of  respondent  for  leave  to  file  a  supplemental  brief  after 
argument  granted. 

No.  84-1560.  PRESS-ENTERPRISE  Co.  v.  SUPERIOR  COURT  OF 
CALIFORNIA  FOR  THE  COUNTY  OF  RIVERSIDE.  Sup.  Ct.  Cal. 
[Certiorari  granted,  ante,  p.  899.]  Motion  of  respondent  to  sup- 
plement the  record  and  leave  to  file  supplemental  appendix 
granted. 

No.  84-1737.  UNITED  STATES  v.  AMERICAN  COLLEGE  OF  PHY- 
SICIANS. C.  A.  Fed.  Cir.  [Certiorari  granted,  473  U.  S.  904.] 
Motion  of  respondent  to  dismiss  writ  of  certiorari  as  improvidently 
granted  is  denied. 

No.  85-21.  SQUARE  D  Co.  ET  AL.  v.  NIAGARA  FRONTIER  TAR- 
IFF BUREAU,  INC.,  ET  AL.  C.  A.  2d  Cir.  [Certiorari  granted, 
ante,  p.  815.]  Motions  of  C.  D.  Ambrosia  Trucking  Co.,  Inc., 
et  al.  and  Western  Fuels  Association,  Inc.,  for  leave  to  file  briefs 
as  amid  curiae  granted.  Motion  of  the  Solicitor  General  for 
leave  to  participate  in  oral  argument  as  amicus  curiae  and  for 
divided  argument  granted. 

No.  85-88.  PAULUSSEN  v.  HERION.  Super.  Ct.  Pa.  [Proba- 
ble jurisdiction  noted,  ante,  p.  899.]  Motion  of  Children's 
Defense  Fund  et  al.  for  leave  to  file  a  brief  as  amid  curiae 
granted. 

No.  85-202.  OFFSHORE  LOGISTICS,  INC.,  ET  AL.  u  TALLEN- 
TIRE  ET  AL.  C.  A.  5th  Cir.  [Certiorari  granted,  ante,  p.  816.] 
Motion  of  Kenneth  G.  Engerrand  for  leave  to  file  a  brief  as  amicus 
curiae  granted. 


1018  OCTOBER  TERM,  1985 

December  9,  1985  474  U.  S. 

No.  85-406.  ARIYOSHI,  GOVERNOR  OF  HAWAII,  ET  AL.  v.  ROB- 
INSON ET  AL.  C.  A.  9th  Cir.;  and 

No.  85-455.  POLO  FASHIONS,  INC.  v.  STOCK  BUYERS  INTER- 
NATIONAL, INC.,  ET  AL.  C.  A.  6th  Cir.  The  Solicitor  General  is 
invited  to  file  briefs  in  these  cases  expressing  the  views  of  the 
United  States. 

Probable  Jurisdiction  Noted 

No.  85-755.  REED  v.  CAMPBELL,  INDIVIDUALLY  AND  AS  AD- 
MINISTRATRIX OF  THE  ESTATE  OF  RICKER.  Appeal  from  Ct. 
App.  Tex.,  8th  Sup.  Jud.  Dist.  Probable  jurisdiction  noted. 
Reported  below:  682  S.  W.  2d  697. 

No.  85-568.  NANTAHALA  POWER  &  LIGHT  Co.  ET  AL.  v. 
THORNBURG,  ATTORNEY  GENERAL  OF  NORTH  CAROLINA,  ET  AL. 
Appeal  from  Sup.  Ct.  N.  C.  Motions  of  Edison  Electric  Institute 
and  United  Steelworkers  of  America,  AFL-CIO,  Local  Union  309, 
for  leave  to  file  briefs  as  amid  curiae  granted.  Probable  juris- 
diction noted.  Reported  below:  313  N.  C.  614,  332  S.  E.  2d  397. 

Certiorari  Granted 

No.  85-664.  YOUNG,  COMMISSIONER  OF  FOOD  AND  DRUG 
ADMINISTRATION  v.  COMMUNITY  NUTRITION  INSTITUTE  ET  AL. 
C.  A.  D.  C.  Cir.  Certiorari  granted.  Reported  below:  244  U.  S. 
App.  D.  C.  279,  757  F.  2d  354. 

No.  85-530.  O'CONNOR  ET  AL.  v.  ORTEGA.  C.  A.  9th  Cir. 
Certiorari  granted  limited  to  Question  1  presented  by  the  petition. 
Reported  below:  764  F.  2d  703. 

No.  85-621.  COMMODITY  FUTURES  TRADING  COMMISSION  v. 
SCHOR  ET  AL.;  and 

No.  85-642.  CoNTiCoMMODiTY  SERVICES,  INC.  v.  SCHOR  ET 
AL.  C.  A.  D.  C.  Cir.  Certiorari  granted,  cases  consolidated, 
and  a  total  of  one  hour  allotted  for  oral  argument.  Reported 
below:  248  U.  S.  App.  D.  C.  155,  770  F.  2d  211. 

No.  85-632.  ATKINS,  COMMISSIONER,  MASSACHUSETTS  DE- 
PARTMENT OF  PUBLIC  WELFARE  v.  RIVERA  ET  AL.  Sup.  Jud. 
Ct.  Mass.  Motion  of  respondent  Madeline  McKenna  for  leave 
to  proceed  in  forma  pauperis  and  certiorari  granted.  Reported 
below:  395  Mass.  189,  479  N.  E.  2d  639. 


ORDERS  1019 

474  U.  S.  December  9,  1985 

No.  85-5238.  CRANE  u  KENTUCKY.  Sup.  Ct.  Ky.  Motion  of 
petitioner  for  leave  to  proceed  in  forma  pauperis  and  certiorari 
granted.  Reported  below:  690  S.  W.  2d  753. 

No.  85-5542.  FORD  v.  WAINWRIGHT,  SECRETARY,  FLORIDA 
DEPARTMENT  OF  CORRECTIONS.  C.  A.  llth  Cir.  Motions  of  Na- 
tional Association  of  Criminal  Defense  Lawyers  and  Office  of  the 
Capital  Collateral  Representative  for  the  State  of  Florida  et  al. 
for  leave  to  file  briefs  as  amici  curiae  granted.  Motion  of  peti- 
tioner for  leave  to  proceed  in  forma  pauperis  and  certiorari 
granted.  Reported  below:  752  F.  2d  526. 

Certiorari  Denied 

No.  84-1906.  ALABAMA  u  CALLAHAN.  Sup.  Ct.  Ala.  Cer- 
tiorari denied.  Reported  below:  471  So.  2d  463. 

No.  84-6287.  CARR  v.  HUTTO,  DIRECTOR  OF  THE  VIRGINIA 
DEPARTMENT  OF  CORRECTIONS.  C.  A.  4th  Cir.  Certiorari 
denied.  Reported  below:  737  F.  2d  433. 

No.  84-6884.  ZABEL  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  928. 

No.  84-6910.  ETHERIDGE  v.  MITCHELL,  SUPERINTENDENT, 
VIRGINIA  STATE  PENITENTIARY.  C.  A.  4th  Cir.  Certiorari 
denied.  Reported  below:  758  F.  2d  646. 

No.  84-6938.  PAUL  v.  UNITED  STATES.  C.  A.  5th  Cir.  Cer- 
tiorari denied.  Reported  below:  762  F.  2d  1002. 

No.  84-7003.  LACAYO  v,  UNITED  STATES.  C,  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  1559. 

No.  85-228.  LASSITER-GEERS  v.  REICHENBACH.  Ct.  App. 
Md.  Certiorari  denied.  Reported  below:  303  Md.  88,  492  A.  2d 
303. 

No.  85-251.  MORRISON  v.  FEDERAL  DEPOSIT  INSURANCE 
CORPORATION.  C.  A.  llth  Cir.  Certiorari  denied.  Reported 
below:  747  F.  2d  610. 

No.  85-252.  CENTRAL  &  SOUTHERN  MOTOR  FREIGHT  TARIFF 
ASSN.  ET  AL.  v.  UNITED  STATES  ET  AL.  C.  A.  D.  C.  Cir.  Cer- 
tiorari denied.  Reported  below:  244  U.  S.  App.  D.  C.  226,  757  F. 
2d  301. 


1020  OCTOBER  TERM,  1985 

December  9,  1985  474  U.  S. 

No.  85-282.  MATURO  ET  AL.  u  UNITED  STATES.  C.  A.  3d 
Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  1076. 

No.  85-335.  Di  NAPOLI  v.  NORTHEAST  REGIONAL  PAROLE 
COMMISSION  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  764  F.  2d  143. 

No.  85-379.  OHIO  NEW  &  REBUILT  PARTS,  INC.,  ET  AL.  v. 
NATIONAL  LABOR  RELATIONS  BOARD.  C.  A.  6th  Cir.  Certio- 
rari denied.  Reported  below:  760  F.  2d  1443. 

No.  85-413.  BLACKWOOD  u  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  131. 

No.  85-458.      SCHIAVONE  ET  AL.  V.  UNITED  STATES.       C.  A.  2d 

Cir.     Certiorari  denied.     Reported  below:  766  F.  2d  70. 

No.  85-466.  SOFT  DRINK  WORKERS,  LOCAL  812,  ET  AL.  v. 
MONARCH  LONG  BEACH  CORP.  ;  and 

No.  85-667.  MONARCH  LONG  BEACH  CORP.  v.  SOFT  DRINK 
WORKERS,  LOCAL  812,  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied. 
Reported  below:  762  F.  2d  228. 

No.  85-538.  MEDFORD  ASSEMBLY  OF  GOD  v.  CITY  OF  MED- 
FORD,  OREGON.  Ct.  App.  Ore.  Certiorari  denied.  Reported 
below:  72  Ore.  App.  333,  695  P.  2d  1379. 

No.   85-622.       PlETRONIRO  ET  AL.   V.   BOROUGH  OF   OCEANPORT 

ET  AL.      C.  A.  3d  Cir.     Certiorari  denied.      Reported  below:  764 
F.  2d  976. 

No.  85-623.     DALLAS  COUNTY,  TEXAS,  ET  AL.  v.  CRANE;  and 
No.  85-646.      WADE  v.  CRANE.      C.  A.   5th  Cir.      Certiorari 
denied.     Reported  below:  759  F.  2d  412  and  766  F.  2d  193. 

No.  85-626.  ACCIDENT  FUND  ET  AL.  v.  BAERWALDT,  COMMIS- 
SIONER OF  INSURANCE  OF  THE  STATE  OF  MICHIGAN,  ET  AL. 
C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  767  F.  2d 
919. 

No.  85-631.  CAPRITO  ET  AL.  v.  MAYHEW,  AKA  CAPRITO,  ET 
AL.  Sup.  Ct.  La.  Certiorari  denied.  Reported  below:  468  So. 
2d  561. 

No.  85-640.  HUGHES  ET  AL.  v.  HOUSTON  NORTHWEST  MEDI- 
CAL CENTER,  INC.,  ET  AL.  Ct.  App.  Tex.,  1st  Sup.  Jud.  Dist. 
Certiorari  denied.  Reported  below:  680  S.  W.  2d  838. 


ORDERS  1021 

474  U.  S.  December  9,  1985 

No.  85-641.  HATCH  ET  AL.  v.  RELIANCE  INSURANCE  Co. 
C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  758  F.  2d 
409. 

No.  85-655.  TEMPLEMAN  v.  CHRIS  CRAFT  CORP.  C.  A.  1st 
Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  245. 

No.  85-657.  ROEHLER  v.  CALIFORNIA.  Ct.  App.  CaL,  2d 
App.  Dist.  Certiorari  denied.  Reported  below:  167  CaL  App. 
3d  353,  213  Cal.  Rptr.  353. 

No.  85-665.  PLEASANT  VIEW  ELEMENTARY  SCHOOL  PTA  u 
GROUP  I  DEFENDANTS  ET  AL.  C.  A.  4th  Cir.  Certiorari  denied. 
Reported  below:  763  F.  2d  652. 

No.  85-669.  AD  Hoc  COMMITTEE  FOR  AKWESASNE  RIGHTS  v. 
REYNOLDS  METALS  Co.  ET  AL.  C.  A.  2d  Cir.  Certiorari  de- 
nied. Reported  below:  770  F.  2d  157. 

No.  85-680.  KOMOTO  u  WASHINGTON.  Ct.  App.  Wash.  Cer- 
tiorari denied.  Reported  below:  40  Wash.  App.  200,  697  P.  2d 
1025. 

No.  85-682.  BAIR,  DIRECTOR,  DEPARTMENT  OP  REVENUE  OF 
IOWA  u  TRAILER  TRAIN  Co.  ET  AL.  C.  A.  8th  Cir.  Certiorari 
denied.  Reported  below:  765  F.  2d  744. 

No.  85-694.  DOWTY  v.  PIONEER  RURAL  ELECTRIC  COOPERA- 
TIVE, INC.,  ET  AL,  C.  A.  6th  Cir.  Certiorari  denied.  Reported 
below:  770  F.  2d  52. 

No.  85-698.  EL  CID,  LTD.  v.  NEW  JERSEY  ZINC  Co.  ET  AL. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  157. 

No.  85-709.  CAMPBELL  v.  ALABAMA.  Sup.  Ct.  Ala.  Certio- 
rari denied.  Reported  below:  479  So.  2d  1299. 

No.  85-738.  CHAMBERS  v.  KENTUCKY.  Cir.  Ct.  Ky.,  Camp- 
bell County.  Certiorari  denied. 

No.  85-739.  ALLEN  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  1351. 

No.  85-741.  DAVIS  ET  AL.  u  BETHLEHEM  STEEL  CORP.  ET 
AL.  C.  A.  4th  Cir.  Certiorari  denied.  Reported  below:  769  F. 
2d  210. 


1022  OCTOBER  TERM,  1985 

December  9,  1985  474  U.  S. 

No.  85-765.  BLACK  v.  UNITED  STATES.  C.  A.  9th  Cir.  Cer- 
tiorari  denied.  Reported  below:  767  F.  2d  1334. 

No.  85-770.  DISTRICT  COUNCIL  33,  AMERICAN  FEDERATION 
OF  STATE,  COUNTY  &  MUNICIPAL  EMPLOYEES,  AFL-CIO,  ET  AL. 
v.  UNITED  STATES.  C.  A.  3d  Cir.  Certiorari  denied.  Reported 
below:  770  F.  2d  36. 

No.  85-784.  PAUTZ  v.  WISCONSIN  DEPARTMENT  OF  INDUS- 
TRY, LABOR  AND  HUMAN  RELATIONS.  C.  A.  7th  Cir.  Certio- 
rari denied.  Reported  below:  767  F.  2d  927. 

No.  85-804.  LIKA  v.  UNITED  STATES.  C.  A.  2d  Cir.  Certio- 
rari denied.  Reported  below:  779  F.  2d  37. 

No.  85-5020.  DALY  u  UNITED  STATES; 
No.  85-5101.  HULSEY  ET  AL.  u  UNITED  STATES; 
No.  85-5235.  KLIR  u  UNITED  STATES;  and 
No.  85-5236.  Ross  u  UNITED  STATES.     C.  A.  5th  Cir.     Cer- 
tiorari denied.  Reported  below:  756  F.  2d  1076. 

No.  85-5155.  MCKINNEY  u  ELLIS  ET  AL.  C.  A.  8th  Cir. 
Certiorari  denied. 

No.  85-5287.  HAISLIP  u  KANSAS.  Sup.  Ct.  Kan.  Certiorari 
denied.  Reported  below:  237  Kan.  461,  701  P.  2d  909. 

No.  85-5306.  SILAS  v.  WINANS,  WARDEN.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  85-5313.  BURNSIDE  u  WHITE,  SUPERINTENDENT,  ALGOA 
CORRECTIONAL  CENTER.  C.  A.  8th  Cir.  Certiorari  denied. 
Reported  below:  760  F.  2d  217. 

No.  85-5332.  HOPKINSON  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  705. 

No.  85-5333.  TAYLOR  v.  LOUISIANA.  Ct.  App.  La.,  3d  Cir. 
Certiorari  denied. 

No.  85-5538.  ACOSTA  u  KRACO,  INC.,  ET  AL.  Sup.  Ct.  Fla. 
Certiorari  denied.  Reported  below:  471  So.  2d  24. 

No.  85-5643.  CHATMAN  v.  ALABAMA.  Sup.  Ct.  Ala.  Certio- 
rari denied.  Reported  below:  480  So.  2d  1274. 


ORDERS  1023 

474  U.  S.  December  9,  1985 

No.  85-5620.  FRONEBERGER  u  ARMSTRONG  ET  AL.  C.  A. 
4th  Cir.  Certiorari  denied. 

No.  85-5627.  HENDERSON  v.  BLACKBURN,  WARDEN.  C.  A. 
5th  Cir.  Certiorari  denied. 

No.  85-5636.  DAVIS  v.  GUPTON,  SUPERINTENDENT,  PIED- 
MONT CORRECTIONAL  CENTER,  ET  AL.  C.  A.  4th  Cir.  Certio- 
rari denied.  Reported  below:  767  F.  2d  911. 

No.  85-5637.  BEZOTTE  u  MADISON  COUNTY  COMMISSIONERS 
ET  AL.  C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  765 
F.  2d  1122. 

No.  85-5567.  BULLOCK  v.  DIRECTOR,  DEPARTMENT  OF  COR- 
RECTIONS. Ct.  App.  Va.  Certiorari  denied.  Reported  below: 
1  Va.  App.  70,  334  S.  E.  2d  150. 

No.  85-5671.  KIMBLE  v.  DUCKWORTH,  SUPERINTENDENT,  IN- 
DIANA STATE  PRISON,  ET  AL.  C.  A.  7th  Cir.  Certiorari  denied. 
Reported  below:  774  F.  2d  1166. 

No.  85-5675.  DISBROW  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  976. 

No.  85-5689.  GRANT  u  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  901. 

No.  85-5690.  JANKOWSKI  u  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  771  F.  2d  70. 

No.  85-5696.  PARRA  u  CALIFORNIA.  Ct.  App.  Cal. ,  1st  App. 
Dist.  Certiorari  denied.  Reported  below:  165  Cal.  App.  3d  874, 
212  Cal.  Rptr.  53. 

No.  85-5697.  SPRINGSTON  v.  PACIFIC  INTERMOUNTAIN  EX- 
PRESS Co.  ET  AL.  C.  A.  6th  Cir.  Certiorari  denied.  Reported 
below:  770  F.  2d  167. 

No.  85-5706.  COLA  v.  UNITED  STATES.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  774  F.  2d  1153. 

No.  85-5709.  FOREMAN  u  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  771  F.  2d  1382. 


1024  OCTOBER  TERM,  1985 

December  9,  1985  474  U.  S. 

No.  85-5710.  DARLING  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  766  F.  2d  1095. 

No.  85-5713.  LEWIS  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  771  F.  2d  454. 

No.  85-5716.  SAWYER  u  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  867. 

No.  85-5722.  COLLINS  u  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  909. 

No.  85-5728.  CROOKER  v.  UNITED  STATES.  C.  A.  1st  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1148. 

No.  85-5732.  PATTERSON  v.  GEORGIA  THEATRE  Co.  ET  AL. 
C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  776  F.  2d 
1055. 

No.  85-5751.  GATI  u  UNITED  STATES.  C.  A.  6th  Cir.  Cer- 
tiorari denied.  Reported  below:  770  F.  2d  167. 

No.  85-5759.  LAPSLEY  v.  LEGAL  SERVICES  OF  MAUMEE  VAL- 
LEY. C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  767 
F.  2d  926. 

No.  85-5781.  CASWELL  v.  PENNSYLVANIA.  Sup.  Ct.  Pa. 
Certiorari  denied. 

No.  85-111.  MICHIGAN  v.  LITTLE.  Ct.  App.  Mich.  Certio- 
rari denied. 

CHIEF  JUSTICE  BURGER,  with  whom  JUSTICE  BLACKMUN  and 
JUSTICE  REHNQUIST  join,  dissenting. 

In  this  case,  an  informant  told  police  that  he  had  made  a  pur- 
chase of  narcotics  from  one  James  Johnson  at  Johnson's  home. 
Based  on  this  information,  police  secured  search  warrants  for 
Johnson  and  for  his  home.  Before  executing  the  warrants,  one  of 
the  police  officers  purchased  heroin  from  Johnson  in  Johnson's 
backyard.  Shortly  thereafter,  police  went  to  the  house,  an- 
nounced their  authority,  presence,  and  purpose,  and  entered. 
They  arrested  Johnson  and  seized  packets  of  heroin  he  had  tried 
to  throw  away.  Officer  Allen  then  noticed  respondent  in  an  ad- 
jacent room.  Allen  made  a  "patdown"  prophylactic  search  for 


ORDERS  1025 

1024  BURGER,  C.  J.,  dissenting 

weapons.  He  testified  that  he  felt  what  seemed  "to  be  a  coin  en- 
velope or  narcotics  paraphernalia"  in  respondent's  pocket.  Allen 
removed  the  envelope  and  discovered  heroin  inside.  The  trial 
court  granted  respondent's  motion  to  suppress  the  evidence,  and 
the  Michigan  Court  of  Appeals  affirmed,  relying  on  Ybarra  v.  Illi- 
nois, 444  U.  S.  85  (1979). 

Ybarra  in  no  sense  controls  this  case.  In  Ybarra,  police 
obtained  a  warrant  authorizing  the  search  of  a  public  bar  and 
of  the  bartender.  Police  entered  the  bar  and  immediately 
searched  nearly  a  dozen  patrons,  including  Ybarra,  for  weapons. 
The  initial  search  of  Ybarra  revealed  no  weapons.  Police  re- 
turned several  minutes  later,  searched  Ybarra  again,  and  found  a 
small  packet  of  heroin.  The  Court's  holding  in  Ybarra  that  the 
second  search  violated  Ybarra's  Fourth  Amendment  rights  was 
based  on  the  presence  of  Ybarra  in  a  public  place  under  circum- 
stances which,  in  the  view  of  the  Court,  did  not  legitimately  focus 
suspicion  on  Ybarra.  Id.,  at  91. 

Here,  however,  respondent  Little  was  not  a  member  of  the  pub- 
lic present  in  a  public  place.  He  and  Johnson  were  the  only  two 
people  present  in  a  dwelling  that  a  Magistrate  had  determined 
was  probably  a  center  of  illicit  drug  activity.  Upon  entering 
Johnson's  home,  the  police  discovered  packets  of  heroin  which 
Johnson  had  attempted  to  dispose  of,  indicating  that  illicit  drug 
activity  had  occurred  as  recently  as  moments  before  their  entry. 
Evidence  of  such  activity  could  have  been  placed  on  the  person  of 
someone  in  the  premises  as  easily  as  it  could  have  been  hidden  in  a 
dresser  drawer.  Under  the  circumstances,  the  police  reasonably 
concluded  that  the  nexus  between  respondent  Little  and  the  illicit 
drug  activity  was  sufficiently  close  to  give  them  probable  cause  to 
conduct  a  cursory  search  of  respondent's  person  as  part  of  their 
search  of  Johnson's  home  pursuant  to  a  valid  search  warrant. 

The  Michigan  Court  of  Appeals  concluded  that  the  search  be- 
came unreasonable  as  soon  as  Officer  Allen  discovered  that  re- 
spondent was  unarmed;  Allen's  determination  coincided,  however, 
with  his  discovery  of  what  he  reasonably  suspected  was  narcotics 
paraphernalia.  At  that  point,  Officer  Allen  could  confirm  or  dis- 
pel that  suspicion  by  removing  the  object,  only  marginally  increas- 
ing the  intrusiveness  of  the  search.  Under  these  circumstances, 
the  justification  for  the  search  outweighed  the  invasion  that  the 


1026  OCTOBER  TERM,  1985 

December  9,  1985  474  U.  S. 

search  entailed.  The  Michigan  Court  of  Appeals  misconstrued 
Ybarra,  and  its  decision  represents  an  unwarranted  expansion 
of  our  holding  in  that  case.  This  is  the  kind  of  result  that 
undermines  public  confidence  in  the  administration  of  justice. 
I  would  grant  certiorari  to  give  plenary  consideration  to  this  case. 

No.  85-314.  JAMES,  WARDEN  u  TYLER.  C.  A.  llth  Cir. 
Motion  of  respondent  for  leave  to  proceed  in  forma  pauperis 
granted.  Certiorari  denied.  Reported  below:  755  F.  2d  741. 

No.  85-5283.  ASPERO,  AKA  ROSEBERRY  v.  SHEARSON  AMERI- 
CAN EXPRESS,  INC.  C.  A.  6th  Cir.  Certiorari  denied.  JUSTICE 
WHITE  would  grant  certiorari.  Reported  below:  768  F.  2d  106. 

No.  85-5551.     HOPKINSON  v.  WYOMING.     Sup.  Ct.  Wyo.; 

No.  85-5608.  SMITH  v.  NORTH  CAROLINA.  Super.  Ct.  N.  C., 
Halifax  County;  and 

No.  85-5648.  MOORE  v.  INDIANA.  Sup.  Ct.  Ind.  Certiorari 
denied.  Reported  below:  No.  85-5551,  704  P.  2d  1323;  No.  85- 
5648,  479  N.  E.  2d  1264. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentences  in  these  cases. 

No.  85-5557.  GRACE  ET  AL.  v.  BURGER,  CHIEF  JUSTICE  OF 
THE  UNITED  STATES,  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari 
denied.  THE  CHIEF  JUSTICE  took  no  part  in  the  consideration 
or  decision  of  this  petition.  Reported  below:  246  U.  S.  App. 
D.  C.  167,  763  F.  2d  457. 

Rehearing  Denied 

No.  84-2016.     GREYHOUND  LINES,  INC.  u  WILHITE  ET  AL., 

ante,  p.  910; 

No.  84-6780.     SMITH  v.  FRANCIS,  WARDEN,  ante,  p.  925;  and 
No.  85-83.     ZERMAN  v.  MELTON  ET  AL.;  ZERMAN  v.  PRUDEN- 

TIAL-BACHE  SECURITIES  ET  AL.;  and  ZERMAN  v.  JACOBS  ET  AL., 

ante,  p.  845.     Petitions  for  rehearing  denied. 


ORDERS  1027 

474  U.  S.  December  9,  16,  1985 

No.  85-123.  MUKA  v.  CARTER,  CHIEF  DISCIPLINARY  COUN- 
SEL, ante,  p.  895; 

No.  85-152.  THOMPSON  ET  AL.  u  FIRST  NATIONAL  BANK  & 
TRUST  Co.,  ante,  p.  895; 

No.  85-159.  REMMENGA  ET  ux.  v.  CALIFORNIA  COASTAL  COM- 
MISSION, ante,  p.  915; 

No.  85-204.  CHICAGO  TRIBUNE  Co.  ET  AL.  v.  JOHNSON, 
DIRECTOR,  ILLINOIS  DEPARTMENT  OF  REVENUE,  ET  AL.,  ante, 
p.  915; 

No.  85-284.     HAYES  u  CANNON  ET  AL.  ,  ante,  p.  903; 

No.  85-607.  BURCHE  v.  CATERPILLAR  TRACTOR  Co.,  ante, 
p.  971; 

No.  85-5164.     COLLINS  ET  AL.  v.  ILLINOIS,  ante,  p.  935; 

No.  85-5171.     WILSON  v.  LOUISIANA,  ante,  p.  911; 

No.  85-5195.  GREEN  u  SCHWARZER,  U.  S.  DISTRICT  JUDGE, 
ante,  p.  921; 

No.  85-5338.     COLLINS  v.  UNITED  STATES,  ante,  p.  922;  and 

No.  85-5456.  BODINE  u  DEPARTMENT  OF  TRANSPORTATION 
ET  AL.,  ante,  p.  923.  Petitions  for  rehearing  denied. 

No.  84-6962.  CAPE  v.  FRANCIS,  WARDEN,  ante,  p.  911.  Mo- 
tion for  leave  to  file  petition  for  rehearing  denied. 

DECEMBER  16,  1985 

Appeals  Dismissed 

No.  85-636.  NYFLOT  v.  MINNESOTA  COMMISSIONER  OF  PUBLIC 
SAFETY.  Appeal  from  Sup.  Ct.  Minn,  dismissed  for  want  of  sub- 
stantial federal  question.  Reported  below:  369  N.  W.  2d  512. 

JUSTICE  WHITE,  with  whom  JUSTICE  STEVENS  joins, 
dissenting. 

Shortly  after  1:30  o'clock  on  the  morning  of  September  23,  1984, 
appellant  Janice  Nyflot  was  arrested  for  driving  under  the  influ- 
ence of  alcohol.  She  immediately  requested  that  she  be  allowed 
to  speak  with  an  attorney,  but  this  request  was  denied.  She  was 
then  taken  to  the  local  law  enforcement  center.  There,  she  was 
advised  that  state  law  required  that  she  be  tested  to  determine  if 
she  was  under  the  influence  of  alcohol  or  a  controlled  substance 
and  that  refusal  to  allow  such  a  test  would  result  in  her  driver's 
license  being  revoked  for  a  minimum  of  one  year.  She  was 


1028  OCTOBER  TERM,  1985 

WHITE,  J.,  dissenting  474  U.  S. 

further  advised  that  refusal  to  take  the  test  could  be  offered  in 
evidence  against  her  at  trial.  Finally,  she  was  told  that  if  she 
consented  to  the  test  and  the  test  indicated  that  she  was  under  the 
influence  of  alcohol  or  a  controlled  substance,  she  would  be  subject 
to  criminal  prosecution  and  her  right  to  drive  could  be  revoked  for 
a  minimum  of  90  days.  And  she  was  advised  that  she  had  the 
right,  after  submitting  to  the  testing,  to  consult  with  an  attorney 
and  to  have  additional  tests  done  by  someone  of  her  own  choosing. 
These  admonitions  complied  with  the  advice  requirements  of  the 
state  implied  consent  statute.  See  Minn.  Stat.  §169.123,  subd. 
2(b)  (1984). 

After  being  thus  advised,  Nyflot  informed  the  police  officer  that 
she  would  not  submit  to  testing  without  first  speaking  to  an  attor- 
ney. She  was  again  told  that  she  would  not  be  allowed  to  speak 
with  an  attorney  before  deciding  whether  to  take  the  test.  She 
again  declined  to  consent  to  the  test.  The  police  officer  then  in- 
formed her  that  she  had  effectively  refused  the  test  and  allowed 
her  to  contact  her  attorney.  Immediately  after  contacting  her  at- 
torney, she  indicated  her  willingness  to  take  the  test,  but  she  was 
told  that  she  had  been  deemed  to  have  refused  it  and  could  no 
longer  consent.  Her  license  was  then  revoked  for  one  year  based 
on  her  refusal. 

The  state  trial  court  upheld  the  revocation  against  NyfLot's  chal- 
lenge that  she  had  a  right  to  counsel  for  the  purpose  of  determin- 
ing whether  to  consent  to  the  blood  alcohol  test,  which  right  had 
been  unconstitutionally  denied.  The  Minnesota  Court  of  Appeals 
reversed,  holding  that  a  limited  right  to  counsel  was  provided  by 
state  law.  365  N.  W.  2d  266  (1985).  The  Minnesota  Supreme 
Court,  with  two  justices  dissenting,  reversed  again  and  upheld  the 
revocation.  369  N.  W.  2d  512  (1985). 

The  Minnesota  Supreme  Court  first  rejected  the  Court  of  Ap- 
peals' conclusion  that  a  right  to  counsel  in  this  situation  was  pro- 
vided by  state  law.  Then,  turning  to  Nyflot's  federal  constitu- 
tional challenge,  the  court  held  that  no  Sixth  Amendment  right  to 
counsel  extended  to  the  decision  whether  to  consent  to  testing. 
The  court  reasoned  that  Kirby  v.  Illinois,  406  U.  S.  682  (1972), 
concluded  that  "the  Sixth  Amendment  right  to  counsel  did  not 
attach  until  judicial  proceedings  are  formally  commenced  (by  in- 
dictment, complaint  or  substitute  for  complaint)."  369  N.  W.  2d, 
at  516.  See  also  United  States  v.  Gouveia,  467  U.  S.  180  (1984). 
Although  acknowledging  that  this  Court  has  recognized  exceptions 


ORDERS  1029 

1027  WHITE,  J.,  dissenting 

to  this  rule  for  the  purposes  of  protecting  a  defendant's  Fifth 
Amendment  rights,  see,  e.  g.,  Miranda  v.  Arizona,  384  U.  S.  436 
(1966),  the  Minnesota  Supreme  Court  concluded  that  this  Court  "is 
unlikely  to  find  other  situations  requiring  a  triggering  of  the  right 
to  counsel  before  the  formal  initiation  of  a  criminal  prosecution" 
and  that  "[i]t  is  also  clear  that  the  right  to  counsel  recognized 
in  Miranda  does  not  apply  to  the  limited  questioning  of  a  driver 
to  determine  if  he  will  consent  to  a  chemical  test."  369  N.  W.  2d, 
at  516  (citing  South  Dakota  v.  Neville,  459  U.  S.  553,  564  n.  15 
(1983)). 

Nyflot  now  appeals,  claiming  that  she  had  a  Sixth  Amendment 
right  to  counsel  with  respect  to  the  decision  whether  to  consent 
to  the  blood  alcohol  test.  She  asserts  that  in  the  special  context 
of  a  driving- while-intoxicated  offense,  formal  proceedings  must 
be  considered  to  have  commenced  with  the  issuance  of  a  traffic 
ticket,  which  is  in  essence  a  summons  to  appear  in  court  and  the 
functional  equivalent  of  a  complaint.  Since  the  ticket  could  be 
given  before  the  test  (because  the  driver  is  not  taken  in  for  testing 
unless  she  is  unable  to  pass  field  sobriety  or  breath  tests),  the  ac- 
tual police  procedures  may  not  be  manipulated  so  as  to  change  the 
time  when  adversary  proceedings  are  considered  to  have  begun. 
Thus,  adversary  proceedings  should  be  deemed  to  have  been  initi- 
ated before  the  test.  The  right  to  counsel  having  attached, 
Nyflot  then  argues  that  the  decision  whether  to  consent  to  the 
test  is  a  "critical  stage"  in  the  proceeding,  since  it  in  essence  is  a 
decision  as  to  what  type  of  evidence  will  be  available  to  be  used 
against  the  driver — the  results  of  the  test  or  the  refusal  to  consent 
to  it.  See  Gouveia,  supra,  at  189. 

Most  of  the  courts  that  have  considered  this  issue  have  rejected 
the  argument  that  the  Sixth  Amendment  right  to  counsel  covers 
the  stage  at  which  the  decision  whether  to  consent  to  the  blood 
alcohol  test  must  be  made.  See,  e.  g.,  Sites  v.  State,  300  Md. 
702,  711,  481  A.  2d  192  (1984)  (collecting  cases).  A  few,  however, 
have  found  that  the  Sixth  Amendment  right  to  counsel  does  ex- 
tend to  this  stage.  See,  e.  g.,  Heles  v.  South  Dakota,  530  F. 
Supp.  646  (SD),  vacated  as  moot,  682  F.  2d  201  (CAS  1982);  Forte 
v.  State,  686  S.  W.  2d  744  (Tex.  App.),  review  granted  by  Tex. 
Ct.  App.,  Oct.  23,  1985,  No.  2-84-012-Cr. ;  State  v.  Welch,  135  Vt. 
316,  376  A.  2d  351  (1977)  (superseded  by  state  statutory  right  to 
counsel,  see  State  v.  Duff,  136  Vt.  537,  394  A.  2d  1145  (1978)). 
Other  courts  have  found  a  right  to  counsel  based  on  state  law, 


1030  OCTOBER  TERM,  1985 

December  16,  1985  474  U.  S. 

see,  e.  g.,  State  v.  Fitzsimmons,  94  Wash.  2d  858,  620  P.  2d  999 
(1980),  or  on  general  due  process  guarantees,  see,  e.  g. ,  State  v. 
Newton,  291  Ore.  788,  636  P.  2d  393  (1981)  (en  bane  plurality). 

Given  these  varying  results,  I  would  note  probable  jurisdiction 
to  settle  the  question  presented. 

No.  85-5686.  GAINES  v.  MERCHANTS  NATIONAL  BANK  & 
TRUST  COMPANY  OF  INDIANAPOLIS.  Appeal  from  C.A.  7th  Cir. 
dismissed  for  want  of  jurisdiction.  Treating  the  papers  whereon 
the  appeal  was  taken  as  a  petition  for  writ  of  certiorari,  certiorari 
denied.  Reported  below:  776  F.  2d  1050. 

No.  85-5761.  MIHAL  v.  JAFFE,  JUDGE,  CUYAHOGA  COUNTY 
COURT  OF  COMMON  PLEAS.  Appeal  from  Sup.  Ct.  Ohio  dismissed 
for  want  of  jurisdiction.  Treating  the  papers  whereon  the  appeal 
was  taken  as  a  petition  for  writ  of  certiorari,  certiorari  denied. 

Miscellaneous  Orders 

No.  D-503.  IN  RE  DISBARMENT  OF  SMITH.  Disbarment 
entered.  [For  earlier  order  herein,  see  472  U.  S.  1014.] 

No.  D-513.  IN  RE  DISBARMENT  OF  NASH.  Disbarment 
entered.  [For  earlier  order  herein,  see  473  U.  S.  931.] 

No.  D-518.  IN  RE  DISBARMENT  OF  O'BOYLE.  Disbarment 
entered.  [For  earlier  order  herein,  see  ante,  p.  896.] 

No.  D-520.  IN  RE  DISBARMENT  OF  WATSON.  Disbarment 
entered.  [For  earlier  order  herein,  see  ante,  p.  80S.] 

No.  D-521.  IN  RE  DISBARMENT  OF  KLINE.  Disbarment 
entered.  [For  earlier  order  herein,  see  ante,  p.  896.] 

No.  D-537.  IN  RE  DISBARMENT  OF  KIDWELL.  It  is  ordered 
that  Wesley  Earl  Kidwell,  Jr.,  of  Rockville,  Md.,  be  suspended 
from  the  practice  of  law  in  this  Court  and  that  a  rule  issue,  return- 
able within  40  days,  requiring  him  to  show  cause  why  he  should 
not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  84-1076.  TRANSCONTINENTAL  GAS  PIPE  LINE  CORP.  v. 
STATE  OIL  AND  GAS  BOARD  OF  MISSISSIPPI  ET  AL.  Sup.  Ct. 
Miss.  [Probable  jurisdiction  noted,  470  U.  S.  1083.]  Motion  of 
appellee  Coastal  Exploration,  Inc.,  for  leave  to  file  a  supplemental 
brief  after  argument  granted. 


ORDERS  1031 

474  U.  S.  December  16,  1985 

No.  84-1181.  NEW  YORK  v.  CLASS.  Ct.  App.  N.  Y.  [Certio- 
rari  granted,  471  U.  S.  1003.]  Motion  of  respondent  for  leave  to 
file  a  supplemental  brief  after  argument  granted. 

No.  84-1728.  EQUAL  EMPLOYMENT  OPPORTUNITY  COMMIS- 
SION v.  FEDERAL  LABOR  RELATIONS  AUTHORITY  ET  AL.  C.  A. 
D.  C.  Cir.  [Certiorari  granted,  472  U.  S.  1026.]  Motion  of 
respondent  American  Federation  of  Government  Employees, 
AFL-CIO,  National  Council  of  EEOC  Locals,  for  divided  argu- 
ment denied. 

No.  84-1903.  POSADAS  DE  PUERTO  Rico  ASSOCIATES,  DBA 
CONDADO  HOLIDAY  INN  v.  TOURISM  COMPANY  OF  PUERTO  Rico 
ET  AL.  Sup.  Ct.  P.  R.  [Probable  jurisdiction  postponed,  ante, 
p.  917.]  Motion  of  American  Civil  Liberties  Union  for  leave  to 
file  a  brief  as  amicus  curiae  granted. 

No.  85-88.  PAULUSSEN  v.  HERION.  Super.  Ct.  Pa.  [Proba- 
ble jurisdiction  noted,  ante,  p.  899.]  Motion  of  Neighborhood 
Legal  Services  Association  for  leave  to  file  a  brief  as  amicus 
curiae  granted. 

No.  85-473.  CARGILL,  INC.,  ET  AL.  v.  MONFORT  OF  COLO- 
RADO, INC.  C.  A.  10th  Cir.  Motion  of  petitioners  for  leave  to 
submit  Rule  28.1  material  under  seal  granted.  JUSTICE  BLACK- 
MUN  took  no  part  in  the  consideration  or  decision  of  this  motion. 

No.  85-541.  BARCLAYSAMERICAN/CREDIT,  INC.  v.  QUILLER 
ET  ux.; 

No.  85-584.  GRANT  ET  AL.  v.  GENERAL  ELECTRIC  CREDIT 
CORP.;  and 

No.  85-717.  QUILLER  ET  ux.  v.  BARCLAYSAMERICAN/CREDIT, 
INC.  C.  A.  llth  Cir.  The  Solicitor  General  is  invited  to  file  a 
brief  in  these  cases  expressing  the  views  of  the  United  States. 
JUSTICE  BLACKMUN  took  no  part  in  the  consideration  or  decision 
of  this  order. 

No.  85-5487.  SMITH  v.  SIELAFF,  DIRECTOR,  VIRGINIA  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  4th  Cir.  [Certiorari 
granted,  ante,  p.  918.]  Motion  of  New  Jersey  Department  of  the 
Public  Advocate  for  leave  to  file  a  brief  as  amicus  curiae  granted. 

No.  85-5304.  IN  RE  WARD.  Petition  for  writ  of  mandamus 
denied. 


1032  OCTOBER  TERM,  1985 

December  16,  1985  474  U.  S. 

No.  85-815.     IN  RE  DAVIS  ET  AL.     Petition  for  writ  of  manda- 
mus and/or  prohibition  denied. 

Certiorari  Denied.     (See  also  Nos.  85-5686  and  85-5761,  supra.) 

No.  84-6831.  FERGUSON  ET  AL.  v.  UNITED  STATES.  C.  A.  2d 
Cir.  Certiorari  denied.  Reported  below:  758  F.  2d  843. 

No.  84-6918.  WANDEL  v.  COLORADO.  Sup.  Ct.  Colo.  Certio- 
rari denied.  Reported  below:  696  P.  2d  288. 

No.  85-67.  ROBINSON  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  759  F.  2d  20. 

No.  85-142.  KASVIN  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  757  F.  2d  887. 

No.  85-245.     UTZ  v.  UNITED  STATES;  and 
No.  85-5323.     WELLINGTON  v.  UNITED  STATES.      C.  A.  9th 
Cir.     Certiorari  denied.     Reported  below:  754  F.  2d  1457. 

No.  85-255.  SUNNYSIDE  VALLEY  IRRIGATION  DISTRICT  v. 
UNITED  STATES  ET  AL.;  and 

No.  85-451.  UNION  GAP  IRRIGATION  DISTRICT  ET  AL.  v. 
UNITED  STATES  ET  AL.  C.  A.  9th  Cir.  Certiorari  denied.  Re- 
ported below:  763  F.  2d  1032. 

No.     85-471.        NORDGREN    ET    AL.     V.     MlLLIKEN,     DIRECTOR, 

UTAH  DIVISION  OF  CORRECTIONS.      C.  A.  10th  Cir.      Certiorari 
denied.     Reported  below:  762  F.  2d  851. 

No.  85-483.  ROTHMAN  v.  NEW  YORK  STATE  DEPARTMENT  OF 
TRANSPORTATION.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  763  F.  2d  507. 

No.  85-493.  REEHLMAN  v.  MCNAMARA,  JUDGE,  UNITED 
STATES  DISTRICT  COURT  FOR  THE  EASTERN  DISTRICT  OF  LOUISI- 
ANA. C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  763 
F.  2d  670. 

No.  85-501.  GREENSPUN  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1076. 

No.  85-537.  CAMPBELL  v.  MAINE;  and  FRIEL  v.  MAINE.  Sup. 
Jud.  Ct.  Me.  Certiorari  denied.  Reported  below:  497  A.  2d  467 
(first  case);  497  A.  2d  475  (second  case). 


ORDERS  1033 

474  U.  S.  December  16,  1985 

No.  85-652.  STONE  v.  MERIT  SYSTEMS  PROTECTION  BOARD  ET 
AL.  C.  A.  D.  C.  Cir.  Certiorari  denied.  Reported  below:  246 
U.  S.  App.  D.  C.  293,  764  F.  2d  926. 

No.  85-658.       MORGANSTERN  ET  AL.  V.  UNITED  STATES.      C.  A. 

6th  Cir.     Certiorari  denied.     Reported  below:  771  F.  2d  143. 

No.  85-671.  PRUESSNER  ET  AL.  v.  BENTON,  SUPERINTEND- 
ENT OF  PUBLIC  INSTRUCTION,  ET  AL.  Sup.  Ct.  Iowa.  Certio- 
rari denied.  Reported  below:  368  N.  W.  2d  74. 

No.  85-672.  COHRAN  v.  CARLIN  ET  AL.  Sup.  Ct.  Ga.  Cer- 
tiorari denied.  Reported  below:  254  Ga.  580,  331  S.  E.  2d  523. 

No.  85-677.  NEGRITO  COMERCIAL,  S.A.  u  SEA-LAND  SERV- 
ICE, INC.,  ET  AL.  C.  A.  5th  Cir.  Certiorari  denied.  Reported 
below:  765  F.  2d  1118. 

No.  85-678.  UNITED  PACIFIC  INSURANCE  Co.  ET  AL.  v. 
ANIERO  CONCRETE  Co.,  INC.  Super.  Ct.  N.  J.,  App.  Div.  Cer- 
tiorari denied. 

No.  85-692.  SHUBA  v.  AUSTINTOWN  BOARD  OF  EDUCATION. 
Ct.  App.  Ohio,  Mahoning  County.  Certiorari  denied. 

No.  85-711.  PASCO  v.  IMMIGRATION  AND  NATURALIZATION 
SERVICE.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below: 
772  F.  2d  913. 

No.  85-721.  STETZ,  PERSONAL  REPRESENTATIVE  OF  THE  ES- 
TATE OF  ATTWOOD  v.  GRANT.  C.  A.  4th  Cir.  Certiorari  denied. 

No.  85-723.  MOTTA  v.  SAMUEL  WEISER,  INC.  C.  A.  1st  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  481. 

No.  85-730.  FARKAS  u  NEW  YORK  STATE  DEPARTMENT  OF 
HEALTH.  C.  A.  2d  Cir.  Certiorari  denied.  Reported  below: 
767  F.  2d  907. 

No.  85-737.  PINNEY  DOCK  &  TRANSPORT  Co.  ET  AL.  v.  PENN 
CENTRAL  CORP.  C.  A.  3d  Cir.  Certiorari  denied.  Reported 
below:  771  F.  2d  762. 

No.  85-745.  HAZELWOOD  ET  ux.  v.  UNITED  STATES.  C.  A. 
6th  Cir.  Certiorari  denied.  Reported  below:  774  F.  2d  1162. 

No.  85-760.  HAFNER  v.  ALABAMA.  Ct.  Crim.  App.  Ala. 
Certiorari  denied.  Reported  below:  474  So.  2d  202. 


1034  OCTOBER  TERM,  1985 

December  16,  1985  474  U.  S. 

No.  85-783.  MARTIN-TRIGONA  v.  FEDERAL  COMMUNICATIONS 
COMMISSION  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  denied.  Re- 
ported below:  246  U.  S.  App.  D.  C.  293,  764  F.  2d  926. 

No.  85-790.  CUDDY  v.  CARMEN,  ADMINISTRATOR,  GENERAL 
SERVICES  ADMINISTRATION.  C.  A.  D.  C.  Cir.  Certiorari  de- 
nied. Reported  below:  246  U.  S.  App.  D.  C.  25,  762  F.  2d  119. 

No.  85-830.  ELLINGTON  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1164. 

No.  85-845.  DEMJANJUK  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  922. 

No.  85-846.  DEMJANJUK  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  922. 

No.  85-848.  DRAGATSIS  ET  ux.  u  COMMISSIONER  OF  INTER- 
NAL REVENUE.  C.  A.  7th  Cir.  Certiorari  denied.  Reported 
below:  774  F.  2d  1168. 

No.  85-865.     LAMBERT  v.  UNITED  STATES;  and 
No.   85-5900.      BLOCK  v.   UNITED  STATES.      C.  A.    6th   Cir. 
Certiorari  denied.     Reported  below:  771  F.  2d  83. 

No.  85-869.  LIGHT  u  UNITED  STATES.  C.  A.  2d  Cir.  Cer- 
tiorari denied.  Reported  below:  770  F.  2d  158. 

No.  85-5278.  BROWN  v.  FLORIDA.  Dist.  Ct.  App.  Fla.,  4th 
Dist.  Certiorari  denied.  Reported  below:  470  So.  2d  56. 

No.  85-5322.  VAN  HOFF  v.  IOWA.  Ct.  App.  Iowa.  Certio- 
rari denied.  Reported  below:  371  N.  W.  2d  180. 

No.  85-5347.  NICHOLS  u  TEXAS.  Ct.  App.  Tex.,  3d  Sup. 
Jud.  Dist.  Certiorari  denied. 

No.  85-5356.  HERNANDEZ  v.  UNITED  STATES  BUREAU  OF 
PRISONS.  C.  A.  10th  Cir.  Certiorari  denied. 

No.  85-5370.  HARRELSON  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  754  F.  2d  1153. 

No.  85-5372.  LEVITT  u  MONROE  ET  AL.  C.  A.  5th  Cir.  Cer- 
tiorari denied.  Reported  below:  759  F.  2d  1224. 

No.  85-5445.  IN  RE  MARTIN-TRIGONA.  C.  A.  1st  Cir.  Cer- 
tiorari denied. 


ORDERS  1035 

474  U.  S.  December  16,  1985 

No.  85-5337.  SCHEPPF  u  KING,  SECRETARY,  LOUISIANA  DE- 
PARTMENT OF  CORRECTIONS,  ET  AL.  Ct.  App.  La.,  1st  Cir. 
Certiorari  denied.  Reported  below:  468  So.  2d  39. 

No.  85-5657.  RODRIGUEZ  u  HOLLAHAN,  WARDEN.  Sup.  Ct. 
Ariz.  Certiorari  denied. 

No.  85-5659.  MALLY  v.  NEW  YORK  UNIVERSITY.  C.  A.  2d 
Cir.  Certiorari  denied. 

No.  85-5660.  DAY  v.  WETTMAN,  JUDGE,  ET  AL.  C.  A.  5th 
Cir.  Certiorari  denied. 

No.  85-5662.  GROSHON  v.  DOUGLAS.  C.  A.  10th  Cir.  Certio- 
rari denied. 

No.  85-5664.  WARDEN  v.  WYRICK,  WARDEN.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  112. 

No.  85-5666.  BURTON  v.  EVAN  ET  AL.  C.  A.  8th  Cir.  Cer- 
tiorari denied. 

No.  85-5667.  BURTON  v.  DIAMOND  ET  AL.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  905. 

No.  85-5668.  MALLY  v.  NEW  YORK  UNIVERSITY  ET  AL. 
C.  A.  2d  Cir.  Certiorari  denied. 

No.  85-5673.  STAMPS  v.  PIMA  COUNTY  SUPERIOR  COURT 
ET  AL.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  772 
F.  2d  913. 

No.  85-5682.  GREGORY  u  AUGER,  WARDEN,  ET  AL.  C.  A. 
8th  Cir.  Certiorari  denied.  Reported  below:  768  F.  2d  287. 

No.  85-5684.  BOWEN  v.  FOLTZ,  WARDEN,  ET  AL.  C.  A.  6th 
Cir.  Certiorari  denied. 

No.  85-5691.  ROMER  v.  CALIFORNIA.  Ct.  App.  Cal.,  1st  App. 
Dist.  Certiorari  denied. 

No.  85-5695.  FRAZIER  v.  PLACER  SAVINGS  &  LOAN  ASSN.  ET 
AL.  Ct.  App.  Cal.,  3d  App.  Dist.  Certiorari  denied. 

No.  85-5719.  SCANLAND  v.  ALABAMA.  Ct.  Grim.  App.  Ala. 
Certiorari  denied.  Reported  below:  473  So.  2d  1182. 

No.  85-5721.  COWELL  v.  ALABAMA.  Sup.  Ct.  Ala.  Certio- 
rari denied. 


1036  OCTOBER  TERM,  1985 

December  16,  1985  474  U.  S. 

No.  85-5754.  BRYANT  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1156. 

No.  85-5758.  OKELLO  v.  DEPARTMENT  OF  HEALTH  AND 
HUMAN  SERVICES.  C.  A.  9th  Cir.  Certiorari  denied.  Re- 
ported below:  746  F.  2d  1486. 

No.  85-5770.  BROWN  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  768. 

No.  85-5772.  DAVIS  v,  UNITED  STATES.  C.  A.  7th  Cir.  Cer- 
tiorari denied.  Reported  below:  772  F.  2d  1339. 

No.  85-5773.  DERKSEN  u  COMMISSIONER  OF  INTERNAL  REV- 
ENUE. C.  A.  7th  Cir.  Certiorari  denied. 

No.  85-5795.  YELLEN  v.  COLORADO.  Sup.  Ct.  Colo.  Certio- 
rari denied.  Reported  below:  704  P.  2d  306. 

No.  84-750.  EASTERN  AIR  LINES,  INC.  v.  WINBOURNE. 
C.  A.  5th  Cir.  Certiorari  denied.  JUSTICE  BRENNAN  took  no 
part  in  the  consideration  or  decision  of  this  petition.  Reported 
below:  758  F.  2d  1016. 

No.  85-237.  HENRY  ET  AL.  v.  CITY  OF  DETROIT  MANPOWER 
DEPARTMENT  ET  AL.  C.  A.  6th  Cir.  Certiorari  denied.  Re- 
ported below:  763  F.  2d  757. 

JUSTICE  WHITE,  with  whom  JUSTICE  BLACKMUN  joins, 
dissenting. 

The  issue  presented  in  this  case  is  whether  an  order  denying  a 
civil  rights  plaintiff's  motion  for  appointment  of  counsel  is  a  final 
decision  appealable  as  a  matter  of  right  under  28  U.  S.  C.  §  1291. 
Three  among  petitioners  are  Title  VII  plaintiffs  who  moved  for 
and  were  denied  appointment  of  counsel  pursuant  to  42  U.  S.  C. 
§2000e-5(f)(l)(B);  a  fourth  petitioner,  a  plaintiff  in  an  action 
under  42  U.  S.  C.  §  1983,  moved  for  and  was  denied  appointment 
of  counsel  pursuant  to  28  U.  S.  C.  §  1915(d).  Petitioners  appealed 
to  the  United  States  Court  of  Appeals  for  the  Sixth  Circuit,  which 
dismissed  the  appeals  on  the  grounds  that  the  orders  denying 
appointment  of  counsel  are  not  final  for  purposes  of  28  U.  S.  C. 
§1291.  763  F.  2d  757  (1985).  This  decision,  while  not  without 
support  among  the  Courts  of  Appeals,  conflicts  with  the  decisions 
in  Caston  v.  Sears,  Roebuck,  &  Co.,  Hattiesburg ,  Miss.,  556  F.  2d 
1305  (CA5  1977)  (order  denying  appointment  of  counsel  pursuant 


ORDERS  1037 

474  U.  S.  December  16,  1985 

to  §2000e-5(f)(l)(B)  is  final  for  purposes  of  §  1291),  and  Slaughter 
v.  City  of  Maplewood,  731  F.  2d  587  (CAS  1984)  (to  the  same 
effect).  I  would  grant  certiorari  to  resolve  this  conflict  among 
the  Courts  of  Appeals  on  this  plainly  recurring  question. 

No.  85-307.  ESTATE  OF  ROCKEFELLER  ET  AL.  v.  COMMIS- 
SIONER OF  INTERNAL  REVENUE.  C.  A.  2d  Cir.  Certiorari 
denied.  JUSTICE  POWELL  took  no  part  in  the  consideration  or 
decision  of  this  petition.  Reported  below:  762  F.  2d  264. 

No.  85-461.  CONTROL  DATA  CORP.  v.  C.  E.  SERVICES,  INC. 
C.  A.  5th  Cir.  Certiorari  denied.  JUSTICE  BLACKMUN  took  no 
part  in  the  consideration  or  decision  of  this  petition.  Reported 
below:  759  F.  2d  1241. 

No.  85-5658.  MALLY  v.  INTERNATIONAL  BUSINESS  MACHINES 
CORP.  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  JUSTICE 
BLACKMUN  took  no  part  in  the  consideration  or  decision  of  this 
petition. 

No.  85-484.  MILLER  v.  UNITED  STATES.  C.  A.  2d  Cir.  Cer- 
tiorari denied.  JUSTICE  WHITE  would  grant  certiorari.  Re- 
ported below:  763  F.  2d  133. 

No.  85-570.  HOLLOWAY  v.  WALKER,  JUDGE,  162D  JUDICIAL 
DISTRICT  COURT  OF  DALLAS  COUNTY,  TEXAS.  C.  A.  5th  Cir. 
Certiorari  denied.  JUSTICE  WHITE  would  grant  certiorari.  Re- 
ported below:  765  F.  2d  517. 

No.  85-586.  CAYLOR  v.  CITY  OF  RED  BLUFF  ET  AL.  Ct.  App. 
Cal.,  3d  App.  Dist.  Certiorari  denied. 

JUSTICE  WHITE,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

In  Patsy  v.  Florida  Board  of  Regents,  457  U.  S.  496  (1982),  this 
Court  held  that  exhaustion  of  state  administrative  remedies  is  not 
a  prerequisite  to  bringing  an  action  in  federal  court  under  42 
U.  S.  C.  §  1983.  In  the  present  case,  the  California  Court  of 
Appeal  held  that  Patsy  applies  only  in  the  context  of  a  §  1983 
suit  brought  in  federal  court.  Because  petitioner  was  suing  in  a 
California  court  for  employment  discrimination  without  having 
exhausted  the  possibility  of  remedies  through  a  complaint  to  the 
California  Fair  Employment  Practices  Commission,  his  §  1983  suit 
was  held  properly  dismissed.  This  holding  postponing  the  federal 


1038  OCTOBER  TERM,  1985 

December  16,  1985  474  U.  S. 

§  1983  remedy  pending  pursuit  of  state  remedies  is  questionable 
under  Patsy,  and  conflicts  with  the  decision  of  the  Connecticut 
Supreme  Court  in  Fetterman  v.  University  of  Connecticut,  192 
Conn.  539,  473  A.  2d  1176  (1984),  where  Patsy  was  held  to  pre- 
vent state  as  well  as  federal  courts  from  imposing  a  requirement 
of  exhaustion  of  state  administrative  remedies  on  §  1983  plaintiffs. 
I  would  grant  certiorari  to  resolve  this  conflict. 

No.  85-659.  HOFFMANN  v.  UNITED  STATES  FEDERAL  ELEC- 
TION COMMISSION  ET  AL.  C.  A.  D.  C.  Cir.  Motion  of  The  Free 
Congress  Research  and  Education  Foundation  for  leave  to  file  a 
brief  as  amicus  curiae  granted.  Motion  of  petitioner  to  defer 
consideration  of  the  petition  for  writ  of  certiorari  denied.  Certio- 
rari denied.  Reported  below:  246  U.  S.  App.  D.  C.  44,  762  F.  2d 
138. 

No.  85-5642.     HANCE  v.  GEORGIA.     Sup.  Ct.  Ga.; 

No.  85-5663.     CONKLIN  v.  GEORGIA.     Sup.  Ct.  Ga.; 

No.  85-5665.     BELL  v.  ALABAMA.     Sup.  Ct.  Ala.; 

No.  85-5694.     McKAGUE  v.  NEVADA.     Sup.  Ct.  Nev.;  and 

No.  85-5701.  BROWN  v.  FLORIDA.  Sup.  Ct.  Fla.  Certiorari 
denied.  Reported  below:  No.  85-5642,  254  Ga.  575,  332  S.  E.  2d 
287;  No.  85-5663,  254  Ga.  558,  331  S.  E.  2d  532;  No.  85-5665,  475 
So.  2d  609;  No.  85-5694,  101  Nev.  327,  705  P.  2d  127;  No.  85- 
5701,  473  So.  2d  1260. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentences  in  these  cases. 

No.  85-5693.  OWENS,  BY  HIS  GUARDIAN  AD  LITEM,  OWENS  v. 
BOURNS,  INC.,  ET  AL.  C.  A.  4th  Cir.  Motion  of  National  Fed- 
eration of  the  Blind  for  leave  to  file  a  brief  as  amicus  curiae 
granted.  Certiorari  denied.  Reported  below:  766  F.  2d  145. 

Rehearing  Denied 

No.  85-368.     SEIBOLD  v.  UNR-ROHN  Co.,  ante,  p.  920; 
No.  85-5180.     MADEJ  v.  ILLINOIS,  ante,  p.  935;  and 
No.  85-5395.     FOWLER  v.  SOUTHEAST  TOYOTA  DISTRIBUTORS, 
INC.,  ET  AL.,  ante,  p.  951.     Petitions  for  rehearing  denied. 


ORDERS  1039 

474  U.  S.  December  19,  20,  1985,  January  9,  1986 

DECEMBER  19,  1985 
Dismissal  Under  Rule  53 

No.  85-733.  FARM  STORES,  INC.  v.  TEXACO  INC.  C.  A.  llth 
Cir.  Certiorari  dismissed  under  this  Court's  Rule  53.  Reported 
below:  763  F.  2d  1335. 

DECEMBER  20,  1985 
Dismissal  Under  Rule  53 

No.  85-173.  KEY  INTERNATIONAL  MANUFACTURING,  INC.  v. 
MORSE/DIESEL,  INC.,  ET  AL.  C.  A.  2d  Cir.  Certiorari  dis- 
missed as  to  respondents  Den-Al  Realty  Corp.  and  Garden  Con- 
struction Corp.  under  this  Court's  Rule  53.  Reported  below:  762 
F.  2d  990. 

JANUARY  9,  1986 
Certiorari  Denied 

No.  85-6155  (A-531).  ROACH  v.  AIKEN,  WARDEN,  ET  AL. 
C.  A.  4th  Cir.  Application  for  stay  of  execution  of  sentence 
of  death  scheduled  for  Friday,  January  10,  1986,  presented  to 
THE  CHIEF  JUSTICE,  and  by  him  referred  to  the  Court,  denied. 
Certiorari  denied.  Reported  below:  781  F.  2d  379. 

JUSTICE  BRENNAN,  with  whom  JUSTICE  MARSHALL  joins, 
dissenting. 

I  adhere  to  my  view  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227  (1976)  (BRENNAN,  J.,  dissenting).  Accordingly,  I  would  va- 
cate the  death  sentence  and  remand  the  case  so  that  the  state 
court  can  determine  what  sentence— other  than  death — may  be 
appropriate. 

In  addition,  this  case  affords  us  an  opportunity  to  address  the 
important  question  whether  an  accused  may,  consistent  with  the 
Eighth  and  Fourteenth  Amendments,  be  sentenced  to  death  for  a 
capital  offense  he  committed  while  a  juvenile.  Although  "[c]rimes 
committed  by  youths  may  be  just  as  harmful  to  victims  as  those 
committed  by  older  persons,  .  .  .  they  deserve  less  punishment 
because  adolescents  may  have  less  capacity  to  control  their  con- 
duct and  to  think  in  long-range  terms  than  adults."  Twentieth 


1040  OCTOBER  TERM,  1985 

BRENNAN,  J.,  dissenting  474  U.  S. 

Century  Fund  Task  Force  on  Sentencing  Policy  Toward  Young 
Offenders,  Confronting  Youth  Crime  7  (1978).  As  we  stated  in 
Eddings  v.  Oklahoma,  455  U.  S.  104  (1982): 

"[Youth]  is  a  time  and  condition  of  life  when  a  person  may  be 
most  susceptible  to  influence  and  to  psychological  damage. 
Our  history  is  replete  with  laws  and  judicial  recognition  that 
minors,  especially  in  their  earlier  years,  generally  are  less 
mature  and  responsible  than  adults.  Particularly  'during  the 
formative  years  of  childhood  and  adolescence,  minors  often 
lack  the  experience,  perspective,  and  judgment'  expected  of 
adults.  BelloUi  v.  Baird,  443  U.  S.  622,  635  (1979)."  Id.,  at 
115-116  (footnotes  omitted). 

The  need  for  solicitude  for  the  particular  susceptibility  of  juveniles 
is  well  reflected  by  the  facts  of  this  case.     The  trial  judge  found 
that  petitioner  acted  under  duress  or  under  the  domination  of  an 
older  person,  and  that  he  was  suffering  from  mental  retardation 
and  a  personality  disorder.     See  Roach  v.  Martin,  757  F.  2d  1463, 
1468-1469  (CA4  1985).     In  addition,  petitioner  now  presents  evi- 
dence suggesting  that  he  suffers  from  the  debilitating  effects  of 
Huntington's  disease.      Under  these  circumstances,  even  accept- 
ing the  Court's  current  interpretation  of  the  Eighth  Amendment, 
sentencing   petitioner   to   death   may   be    inconsistent    with    the 
"  'evolving  standards  of  decency  that  mark  the  progress  of  a  ma- 
turing society/ "  Gregg  v.  Georgia,  supra,  at  173  (quoting  Trop  v. 
Dulles,   356  U.  S.   86,    101   (1958)   (plurality  opinion  of  Warren, 
C.  J.)),  and  may  provide  no  more  than  "marginal  contributions  to 
any  discernible  social  or  public  purposes."     Furman  v.  Georgia, 
408  U.  S.  238,  312  (1972)  (WHITE,  J.,  concurring).     "Even  if  some 
percentage  of  adults  are  deterred  by  the  death  penalty,  the  deter- 
rent effect  tends  to  lose  much  of  its  power  when  imposed  upon  an 
adolescent."     Streib,  Death  Penalty  for  Children:  The  American 
Experience  with  Capital  Punishment  for  Crimes  Committed  While 
Under  Age  Eighteen,  36  Okla.  L.  Rev.,  613,  639  (1983).      I  would 
grant  the  petition  for  certiorari  to  resolve  this  important  issue, 
and  would  stay  petitioner's  execution  until  we  decide  the  matter. 
At  the  very  least,  in  light  of  the  evidence  suggesting  that  peti- 
tioner suffers  from  Huntington's  disease,  I  agree  with  JUSTICE 
MARSHALL  that  the  stay  should  be  granted  and  the  case  held 
pending  our  decision  in  Ford  v.  Wainwright,  No.  85-5542,  cert, 
granted,  ante,  p.  1019. 


ORDERS  1041 

1039  MARSHALL,  J.,  dissenting 

JUSTICE  MARSHALL,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

The  State  of  South  Carolina  intends  to  execute  petitioner  James 
Terry  Roach  tomorrow,  January  10,  1986,  at  5  a.m.  At  approxi- 
mately noon  today,  four  hours  after  he  presented  his  federal 
habeas  claims  to  the  Court  of  Appeals  and  was  denied  all  relief, 
petitioner  came  to  this  Court,  seeking  a  stay  of  execution  and  a 
writ  of  certiorari.  Among  other  claims,  Roach's  counsel  contends 
that  Roach  has  been  rendered  so  mentally  incompetent  by  Hun- 
tington's disease  that  his  execution  would  offend  the  contemporary 
standards  of  decency  embodied  in  the  Eighth  Amendment.  One 
month  ago,  this  Court  granted  certiorari  to  resolve  the  issues 
whether  the  execution  of  the  presently  mentally  incompetent  of- 
fends the  Eighth  Amendment  and,  if  it  does,  what  process  is  due  a 
condemned  prisoner  who  might  lack  any  understanding  of  the  pen- 
alty he  faces.  Ford  v.  Wainwright,  No.  85-5542,  cert,  granted, 
ante,  p.  1019.  Because  in  the  17  hours  allowed  it  by  the  regime 
of  Barefoot  v.  Estelle,  463  U.  S.  880  (1983),*  this  Court  has 
decided  to  allow  Roach  to  go  to  his  death  while  the  question  of 
his  execution's  constitutionality  is  yet  to  be  resolved,  I  must 
dissent  from  the  denial  of  petitioner's  application  for  a  stay  of 
execution. 

In  1977,  several  months  before  his  18th  birthday,  petitioner 
pleaded  guilty  to  two  counts  of  murder  and  charges  of  criminal 
sexual  assault,  kidnaping,  and  armed  robbery.  At  the  capital 
sentencing  hearing,  a  psychiatrist  appearing  on  Roach's  behalf 
testified  that  while  Roach  was  mentally  retarded,  he  could  not,  at 
that  time,  be  diagnosed  as  suffering  from  Huntington's  disease. 
Huntington's  disease  is  an  inherited  disorder  of  movement, 
personality,  and  thought  that  often  does  not  manifest  itself  until 
an  individual  has  reached  adulthood.  Roach  v.  Martin,  757  F.  2d 
1463,  1473  (CA4  1985).  After  considering  this  and  other  mitigat- 
ing factors,  however,  the  trial  judge  sentenced  Roach  to  death  on 
both  murder  counts.  The  conviction  and  sentence  were  upheld  on 
direct  review,  State  v.  Shaw  (Roach),  273  S.  C.  194,  255  S.  E.  2d 
799  (1979),  and  this  Court  denied  certiorari,  444  U.  S.  1026  (1980). 

In  his  first  federal  habeas  petition,  Roach  urged  that  he  had 
indeed  inherited  Huntington's  disease  from  his  mother,  who  had 


*See  Note,  Summary  Processes  and  the  Rule  of  Law:  Expediting  Death 
Penalty  Cases  in  the  Federal  Courts,  95  Yale  L.  J.  349  (1985). 


1042  OCTOBER  TERM,  1985 

MARSHALL,  JM  dissenting  474  U.  S. 

already  been  diagnosed  as  having  that  disorder  in  an  early  stage. 
Roach  further  alleged  that,  were  he  given  the  opportunity  to 
prove  this  fact,  he  could  raise  doubts  as  to  both  his  competency 
to  stand  trial  and  the  appropriateness  of  his  death  sentence.  It 
appears  that  Roach  did  not  press  any  claim  of  his  present  incom- 
petence to  be  executed,  for,  in  affirming  the  District  Court's 
denial  of  his  habeas  petition,  the  Court  of  Appeals  concluded: 

"[E]ven  assuming  arguendo  that  Roach  does  in  fact  have  the 
Huntington's  gene,  in  which  case  HD  [Huntington's  disease] 
will  inevitably  manifest  its  symptoms,  we  can  see  no  way  that 
this  fact  alone  would  alter  Roach's  conviction  and  sentence. 
In  other  words,  a  determination  today  that  Roach  has  the  HD 
gene  would  not  affect  the  findings  that  Roach  was  sane  at  the 
time  of  the  offenses  and  that  he  was  competent  to  stand  trial, 
and  is  now  competent."  757  F.  2d,  at  1474. 

The  petition  now  before  this  Court,  however,  goes  beyond  mere 
allegations  that  Roach  suffers  from  an  as-yet-unmanifested  genetic 
disorder.     Accompanying  his  petition  is  an  affidavit  by  Dr.  Wil- 
liam H.   Olsen,   a  distinguished  neurologist  who,   less  than  two 
weeks  ago,  was  the  first  neurologist  to  have  examined  Roach  in 
the  last  five  years.     Dr.  Olsen  not  only  found  that  there  is  a  "rea- 
sonable degree  of  certainty"  that  Roach  suffers  from  Huntington's 
disease,  but  also  made  a  preliminary  finding  that  Roach  suffers 
from  the  mental  deterioration  that  is  a  characteristic  symptom 
of  the  disorder.      Dr.  Olsen's  conclusion,  though  admittedly  pre- 
liminary, raises  substantial  doubts  as  to  whether  Roach  has  any 
understanding  that  he  is   scheduled  to   die  tomorrow  morning. 
Certainly,  nothing  in  the  State's  papers  assuages  these  doubts. 
Neither  this  Court  nor  the  State  of  South  Carolina  is  now  in  a 
position  to  ascertain  whether  Roach  is  indeed  sufficiently  compe- 
tent to  face  his  execution  with  the  dignity  that  is  the  final  right 
we  allow  even  the  most  heinous  criminals.     What  we  can  do  is 
allow  Roach's  counsel  and  experts  the  time  and  opportunity  to 
make  such  a  showing.     The  Court's  refusal  to  do  so  even  while  it 
prepares  to  hear  a  case  in  which  another  condemned  man  raises  a 
similar  claim,  provides  yet  another  stark  example  of  the  arbitrari- 
ness with  which  the  death  penalty  is  administered  in  the  United 
States  today.     I  would  grant  the  stay  and  defer  consideration  of 
Roach's  petition  for  certiorari  pending  this  Court's  decision  in 
Ford  v.  Wainwright,  supra. 


ORDERS  1043 

474  U.  S. 

JANUARY  13,  1986 

Appeals  Dismissed 

No.  85-749.  MICHELLE  MARIE  W.,  A  MINOR  BY  AND 
THROUGH  HER  GUARDIAN  AD  LITEM,  WILLIAMS,  ET  AL.  v.  RILEY 
ET  AL.  Appeal  from  Sup.  Ct.  Cal.  dismissed  for  want  of  substan- 
tial federal  question.  JUSTICE  WHITE  and  JUSTICE  STEVENS 
would  note  probable  jurisdiction  and  set  case  for  oral  argument. 
Reported  below:  39  Cal.  3d  354,  703  P.  2d  88. 

No.  85-773.  ATLANTIC  RICHFIELD  Co.  ET  AL.  u  ALASKA  ET 
AL.  Appeal  from  Sup.  Ct.  Alaska  dismissed  for  want  of  substan- 
tial federal  question.  THE  CHIEF  JUSTICE,  JUSTICE  WHITE,  and 
JUSTICE  STEVENS  would  note  probable  jurisdiction  and  set  case 
for  oral  argument.  JUSTICE  POWELL  took  no  part  in  the  consid- 
eration or  decision  of  this  case.  Reported  below:  705  P.  2d  418. 

No.  85-787.  DAVES  v.  STATE  BAR  OF  TEXAS.  Appeal  from 
Ct.  App.  Tex.,  7th  Sup.  Jud.  Dist.  dismissed  for  want  of  substan- 
tial federal  question.  Reported  below:  691  S.  W.  2d  784. 

No.  85-5455.  GARCIA,  AKA  TRAVALINO  v.  DIXON  ET  AL.  Ap- 
peal from  C.  A.  9th  Cir.  dismissed  for  want  of  jurisdiction. 
Treating  the  papers  whereon  the  appeal  was  taken  as  a  petition 
for  writ  of  certiorari,  certiorari  denied.  Reported  below:  760  F. 
2d  275. 

No.  85-5853.  ROYSE  v.  UNITED  STATES  ET  AL.  Appeal  from 
D.  C.  W.  D.  Wash,  dismissed  for  want  of  jurisdiction. 

Miscellaneous  Orders 

No. .      RAMIREZ  v.  CALIFORNIA.     Motion  to  permit 

petitioner  to  proceed  in  forma  pauper  is  without  submitting  an 
affidavit  of  indigency  denied. 

No.  A— 436.  DIAZ  v.  UNITED  STATES.  Application  for  release 
on  bail  pending  trial,  addressed  to  JUSTICE  BRENNAN  and  re- 
ferred to  the  Court,  denied. 

No.  A-453  (85-5989).  HORAN  v.  UNITED  STATES.  C.  A.  3d 
Cir.  Application  for  stay,  addressed  to  JUSTICE  MARSHALL  and 
referred  to  the  Court,  denied. 

No.  D-525.  IN  RE  DISBARMENT  OF  PHELPS.  Robert  Edward 
Phelps,  Jr.,  of  Houston,  Tex.,  having  requested  to  resign  as  a 


1044  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

member  of  the  Bar  of  this  Court,  it  is  ordered  that  his  name  be 
stricken  from  the  roll  of  attorneys  admitted  to  practice  before  the 
Bar  of  this  Court.  The  rule  to  show  cause,  heretofore  issued  on 
October  21,  1985  [ante,  p.  917],  is  hereby  discharged. 

No.  D-528.  IN  RE  DISBARMENT  OF  LAKKIN.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  ante,  p.  941.] 

No.  D-530.  IN  RE  DISBARMENT  OF  SIEGFRIED.  Scott  Thomas 
Siegfried,  of  Wadsworth,  Ohio,  having  requested  to  resign  as  a 
member  of  the  Bar  of  this  Court,  it  is  ordered  that  his  name  be 
stricken  from  the  roll  of  attorneys  admitted  to  practice  before  the 
Bar  of  this  Court.  The  rule  to  show  cause,  heretofore  issued  on 
November  4,  1985  [ante,  p.  941],  is  hereby  discharged. 

No.  D-538.  IN  RE  DISBARMENT  OF  VETTER.  It  is  ordered 
that  William  V.  Vetter,  of  Tacoma,  Wash.,  be  suspended  from  the 
practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-539.  IN  RE  DISBARMENT  OF  MUELLER.  It  is  ordered 
that  Donald  H.  Mueller,  of  Milwaukee,  Wis.,  be  suspended  from 
the  practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-540.  IN  RE  DISBARMENT  OF  CHOSID.  It  is  ordered 
that  Richard  G.  Chosid,  of  Bloomfield  Hills,  Mich.,  be  suspended 
from  the  practice  of  law  in  this  Court  and  that  a  rule  issue,  return- 
able within  40  days,  requiring  him  to  show  cause  why  he  should 
not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-541.  IN  RE  DISBARMENT  OF  BOULDING.  It  is  ordered 
that  Calvin  Roosevelt  Boulding,  of  Houston,  Tex.,  be  suspended 
from  the  practice  of  law  in  this  Court  and  that  a  rule  issue,  return- 
able within  40  days,  requiring  him  to  show  cause  why  he  should 
not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  84,  Orig.  UNITED  STATES  v.  ALASKA.  Application  of  the 
Special  Master  for  award  of  interim  compensation  granted,  and 
the  Special  Master  is  awarded  interim  compensation  in  the  amount 
of  $75,000  to  be  paid  by  the  State  of  Alaska  and  the  United  States 
in  equal  portions.  [For  earlier  order  herein,  see,  e.  g.,  465  U.  S. 
1018.] 


ORDERS  1045 

474  U.  S.  January  13,  1986 

No.  104,  Orig.  NEW  JERSEY  u  NEVADA  ET  AL.  It  is  ordered 
that  the  Honorable  Wade  H.  McCree,  Jr.,  of  Ann  Arbor,  Mich., 
be  appointed  Special  Master  in  this  case  with  authority  to  fix  the 
time  and  conditions  for  the  filing  of  additional  pleadings  and  to 
direct  subsequent  proceedings,  and  the  authority  to  summon 
witnesses,  issue  subpoenas,  and  take  such  evidence  as  may  be 
introduced  and  such  as  he  may  deem  necessary  to  call  for.  The 
Master  is  directed  to  submit  such  reports  as  he  may  deem 
appropriate. 

The  Master  shall  be  allowed  his  actual  expenses.  The  allow- 
ances to  him,  the  compensation  paid  to  his  technical,  stenographic, 
and  clerical  assistants,  the  cost  of  printing  his  report,  and  all  other 
proper  expenses  shall  be  charged  against  and  be  borne  by  the  par- 
ties in  such  proportion  as  the  Court  may  hereafter  direct. 

It  is  further  ordered  that  if  the  position  of  Special  Master  in  this 
case  becomes  vacant  during  a  recess  of  the  Court,  THE  CHIEF 
JUSTICE  shall  have  authority  to  make  a  new  designation  which 
shall  have  the  same  effect  as  if  originally  made  by  the  Court. 

Motion  of  City  of  Las  Vegas  to  be  dismissed  as  a  party  defend- 
ant is  referred  to  the  Special  Master.  [For  earlier  order  herein, 
see  ante,  p.  917.] 

No.  84-1076.  TRANSCONTINENTAL  GAS  PIPE  LINE  CORP.  v. 
STATE  OIL  AND  GAS  BOARD  OF  MISSISSIPPI  ET  AL.  Sup.  Ct. 
Miss.  [Probable  jurisdiction  noted,  470  U.  S.  1083.]  Motion 
of  appellant  for  leave  to  file  a  supplemental  brief  after  argument 
granted. 

No.  84-1545.  MILLER-WOHL  Co.,  INC.  v.  COMMISSIONER  OF 
LABOR  AND  INDUSTRY  OF  MONTANA  ET  AL.  Appeal  from  Sup. 
Ct.  Mont.  Motions  of  Chamber  of  Commerce  of  the  United 
States,  Equal  Employment  Advisory  Council,  and  American  Civil 
Liberties  Union  et  al.  for  leave  to  file  briefs  as  amid  curiae 
granted. 

No.  84-1656.  LOCAL  28  OF  THE  SHEET  METAL  WORKERS'  IN- 
TERNATIONAL ASSN.  ET  AL.  v.  EQUAL  EMPLOYMENT  OPPORTU- 
NITY COMMISSION  ET  AL.  C.  A.  2d  Cir.  [Certiorari  granted, 
ante,  p.  815.]  Motion  of  the  Solicitor  General  for  divided  argu- 
ment and  for  additional  time  for  oral  argument  denied.  Motion  of 
North  Carolina  Association  of  Black  Lawyers  for  leave  to  partici- 
pate in  oral  argument  as  amicus  curiae,  for  divided  argument, 
and  for  additional  time  for  oral  argument,  or  in  the  alternative,  for 


1046  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

appointment  of  counsel  to  brief  and  argue  in  support  of  judgment 
below  as  amicus  curias  denied. 

No.  84-1667.  BETHEL  SCHOOL  DISTRICT  No.  403  ET  AL.  v. 
FRASER,  A  MINOR,  ET  AL.  C.  A.  9th  Cir.  [Certiorari  granted, 
ante,  p.  814.]  Motion  of  the  Solicitor  General  for  leave  to  partici- 
pate in  oral  argument  as  amicus  curiae  and  for  divided  argument 
denied. 

No.  84-1726.  EAST  RIVER  STEAMSHIP  CORP.  ET  AL.  v. 
TRANSAMERICA  DELAVAL  INC.  C.  A.  3d  Cir.  [Certiorari 
granted,  ante,  p.  814.]  Motions  of  Pott  Industries  Inc.  and  Prod- 
uct Liability  Advisory  Council,  Inc.,  et  al.  for  leave  to  file  briefs 
as  amid  curiae  granted.  Motion  of  Ingram  River  Equipment, 
Inc.,  for  leave  to  file  a  brief  as  amicus  curiae  denied. 

No.  84-1903.  POSADAS  DE  PUERTO  Rico  ASSOCIATES,  DBA 
CONDADO  HOLIDAY  INN  v.  TOURISM  COMPANY  OF  PUERTO  Rico 
ET  AL.  Sup.  Ct.  P.  R.  Motions  for  leave  to  file  briefs  as  amid 
curiae  filed  by  the  following  are  granted:  American  Association 
of  Advertising  Agencies,  Inc.,  Atlantic  City  Casino  Association, 
American  Federation  of  Labor  and  Congress  of  Industrial  Orga- 
nizations, American  Newspaper  Publishers  Association,  National 
Broadcasting  Co.,  Inc.,  and  American  Broadcasting  Cos.,  Inc., 
etal. 

No.  84-1905.  BOWEN,  SECRETARY  OF  HEALTH  AND  HUMAN 
SERVICES  v.  OWENS  ET  AL.  D.  C.  C.  D.  Cal.  [Probable  juris- 
diction noted  sub  nom.  Heckler  v.  Owens,  ante,  p.  899.]  Motion 
of  the  Solicitor  General  to  dispense  with  printing  the  joint  appen- 
dix granted. 

No.  85-385.  BROCK,  SECRETARY  OF  LABOR  u  PIERCE 
COUNTY.  C.  A.  9th  Cir.  [Certiorari  granted,  ante,  p.  944.] 
Motion  of  the  Solicitor  General  to  dispense  with  printing  the  joint 
appendix  granted. 

No.  85-434.  UNITED  STATES  v.  JAMES  ET  AL.  C.  A.  5th  Cir. 
[Certiorari  granted,  ante,  p.  978.]  Motion  of  the  Solicitor  General 
to  dispense  with  printing  the  joint  appendix  granted. 

No.  84-1973.  THREE  AFFILIATED  TRIBES  OF  THE  FORT 
BERTHOLD  RESERVATION  v.  WOLD  ENGINEERING,  P.  C.,  ET  AL. 
Sup.  Ct.  N.  D.  [Certiorari  granted,  ante,  p.  900.]  Motions  of 


ORDERS  1047 

474  U.  S.  January  13,  1986 

Standing  Rock  Sioux  Tribe  et  al.  and  Turtle  Mountain  Band  of 
Chippewa  Indians  for  leave  to  file  briefs  as  amid  curiae  granted. 

No.  84-1974.  ROSE,  WARDEN  v.  CLARK.  C.  A.  6th  Cir. 
[Certiorari  granted,  ante,  p.  816.]  Motion  of  the  Solicitor  Gen- 
eral for  leave  to  participate  in  oral  argument  as  amicus  curiae  and 
for  divided  argument  granted. 

No.  84-1979.  MERITOR  SAVINGS  BANK,  FSB  v.  VINSON  ET  AL. 
C.  A.  D.  C.  Cir.  [Certiorari  granted  sub  nom.  PSFS  Savings 
Bank  v.  Vinson,  ante,  p.  815.]  Motion  of  Chamber  of  Commerce 
of  the  United  States  for  leave  to  file  a  brief  as  amicus  curiae 
granted. 

No.  84-1999.  LOCAL  NUMBER  93,  INTERNATIONAL  ASSOCIA- 
TION OF  FIREFIGHTERS,  AFL-CIO,  C.  L.  C.  v.  CITY  OF  CLEVE- 
LAND ET  AL.  C.  A.  6th  Cir.  [Certiorari  granted,  ante,  p.  816.] 
Motion  of  the  Solicitor  General  for  leave  to  participate  in  oral 
argument  as  amicus  curiae  and  for  divided  argument  granted. 
Motion  of  respondent  Vanguards  of  Cleveland  for  divided  argu- 
ment granted.  Motion  of  respondents  City  of  Cleveland  et  al.  for 
divided  argument  granted. 

No.  85-5.  PENNSYLVANIA  ET  AL.  v.  DELAWARE  VALLEY  CITI- 
ZENS' COUNCIL  FOR  CLEAN  AIR  ET  AL.  C.  A.  3d  Cir.  [Certio- 
rari granted,  ante,  p.  815.]  Motion  of  the  Solicitor  General  for 
divided  argument  granted. 

No.  85-62.  MAINE  v.  TAYLOR  ET  AL.  C.  A.  1st  Cir.  [Proba- 
ble jurisdiction  postponed,  ante,  p.  943.]  Motion  of  the  Solicitor 
General  for  divided  argument  granted. 

No.  85-88.  PAULUSSEN  v.  HERION.  Super.  Ct.  Pa.  [Proba- 
ble jurisdiction  noted,  ante,  p.  899.]  Motion  of  Children's  De- 
fense Fund  et  al.  for  leave  to  participate  in  oral  argument  as  amid 
curiae  and  for  divided  argument  denied. 

No.  85-198.  CELOTEX  CORP.  v.  CATRETT,  ADMINISTRATRIX 
OF  THE  ESTATE  OF  CATRETT.  C.  A.  D.  C.  Cir.  [Certiorari 
granted,  ante,  p.  944.]  Motion  of  Motor  Vehicle  Manufacturers 
Association  of  the  United  States,  Inc.,  et  al.  for  leave  to  file  a 
brief  as  amid  curiae  granted. 

No.  85-227.  SMALIS  ET  AL.  v.  PENNSYLVANIA.  Sup.  Ct.  Pa. 
[Certiorari  granted,  ante,  p.  944.]  Motion  of  petitioners  to  dis- 
pense with  printing  the  joint  appendix  granted. 


1048  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

No.  85-390.  CITY  OF  Los  ANGELES  ET  AL.  u  PREFERRED 
COMMUNICATIONS,  INC.  C.  A.  9th  Cir.  [Certiorari  granted, 
ante,  p.  979.]  Motion  of  Nicholas  W.  Carlin  for  leave  to  file  a 
brief  as  amicus  curiae  granted. 

No.  85-530.  O'CONNOR  ET  AL.  v.  ORTEGA.  C.  A.  9th  Cir. 
[Certiorari  granted,  ante,  p.  1018.]  Motion  of  respondent  for 
leave  to  proceed  further  herein  in  forma  pauperis  denied.  Mo- 
tion of  respondent  for  appointment  of  counsel  denied. 

No.  85-581.  BULLOCH  ET  AL.  v.  PEARSON  ET  AL.  C.  A.  10th 
Cir.  Motion  of  Scott  M.  Matheson  for  leave  to  file  a  brief  as 
amicus  curiae  granted.  THE  CHIEF  JUSTICE  took  no  part  in  the 
consideration  or  decision  of  this  motion. 

No.  85-641.  HATCH  ET  AL.  v.  RELIANCE  INSURANCE  Co., 
ante,  p.  1021.  Motion  of  respondent  for  award  of  damages 
granted,  and  damages  in  the  amount  of  $500  are  awarded  pur- 
suant to  this  Court's  Rule  49.2.  JUSTICE  BRENNAN,  JUSTICE 
MARSHALL,  JUSTICE  BLACKMUN,  and  JUSTICE  STEVENS  dissent. 

No.  85-736.  KEMP,  WARDEN  v.  THOMAS.  C.  A.  llth  Cir. 
Motion  of  respondent  for  leave  to  proceed  in  forma  pauperis 
granted. 

No.  85-5821.  WADE  v.  UNITED  STATES.  C.  A.  5th  Cir.  Mo- 
tion of  petitioner  for  leave  to  proceed  in  forma  pauperis  denied. 
Petitioner  is  allowed  until  February  3,  1986,  within  which  to  pay 
the  docketing  fee  required  by  Rule  45(a)  and  to  submit  a  petition 
in  compliance  with  Rule  33  of  the  Rules  of  this  Court. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

For  the  reasons  expressed  in  Brown  v.  Herald  Co.,  464  U.  S. 
928  (1983),  we  would  deny  the  petition  for  writ  of  certiorari 
without  reaching  the  merits  of  the  motion  to  proceed  in  forma 
pauperis. 

No.  85-5845.  IN  RE  TRIP  ATI.  Petition  for  writ  of  habeas 
corpus  denied. 

No.  85-5670.     IN  RE  COLES;  and 

No.  85-5755.  IN  RE  JOHNSON.  Petitions  for  writs  of  manda- 
mus denied. 


ORDERS  1049 

474  U.  S.  January  13,  1986 

No.  85-5799.     IN  RE  RODMAN;  and 

No.  85-5800.  IN  RE  RODMAN.  Petitions  for  writs  of  prohi- 
bition denied. 

Probable  Jurisdiction  Noted 

No.  85-637.  HODEL,  SECRETARY  or  THE  INTERIOR  v.  IRVING 
ET  AL.  Appeal  from  C.  A.  8th  Cir.  Probable  jurisdiction  noted. 
Reported  below:  758  F.  2d  1260. 

No.  85-656.  MUNRO,  SECRETARY  OF  STATE  OF  WASHINGTON 
v.  SOCIALIST  WORKERS  PARTY  ET  AL.  Appeal  from  C.  A.  9th 
Cir.  Probable  jurisdiction  noted.  Reported  below:  765  F.  2d 
1417. 

No.  85-701.  FEDERAL  ELECTION  COMMISSION  v.  MASSACHU- 
SETTS CITIZENS  FOR  LIFE,  INC.  Appeal  from  C.  A.  1st  Cir. 
Probable  jurisdiction  noted.  Reported  below:  769  F.  2d  13. 

No.  85-766.  TASHJIAN,  SECRETARY  OF  STATE  OF  CONNECTI- 
CUT v.  REPUBLICAN  PARTY  OF  CONNECTICUT  ET  AL.  Appeal 
from  C.  A.  2d  Cir.  Probable  jurisdiction  noted.  Reported 
below:  770  F.  2d  265. 

Certiorari  Granted 
No.  85-494.     CALIFORNIA  FEDERAL  SAVINGS  &  LOAN  ASSN. 

ET  AL.  V.  GUERRA,  DIRECTOR,  DEPARTMENT  OF  FAIR  EMPLOY- 
MENT AND  HOUSING,  ET  AL.  C.  A.  9th  Cir.  Certiorari  granted. 
Reported  below:  758  F.  2d  390. 

No.  85-767.  NORTH  CAROLINA  DEPARTMENT  OF  TRANSPOR- 
TATION ET  AL.  v.  CREST  STREET  COMMUNITY  COUNCIL,  INC., 
ET  AL.  C.  A.  4th  Cir.  Certiorari  granted.  Reported  below: 
769  F.  2d  1025. 

No.  85-236.  EICHENLAUB  v.  YURKY  ET  AL.  C.  A.  3d  Cir. 
Motion  of  respondent  Yurky  for  leave  to  proceed  in  forma  paupe- 
ris  and  certiorari  granted.  Reported  below:  770  F.  2d  1078. 

No.  85-303.  MISSOURI  v.  BLAIR.  Sup.  Ct.  Mo.  Motion  of  re- 
spondent for  leave  to  proceed  in  forma  pauperis  and  certiorari 
granted.  Reported  below:  691  S.  W.  2d  259. 

No.  85-473.  CARGILL,  INC.,  ET  AL.  v.  MONFORT  OF  COLO- 
RADO, INC.  C.  A.  10th  Cir.  Certiorari  granted.  JUSTICE 


1050  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

BLACKMUN  took  no  part  in  the  consideration  or  decision  of  this 
petition.     Reported  below:  761  F.  2d  570. 

No.  85-558.     O'CONNOR  ET  ux.  v.  UNITED  STATES; 
No.  85-559.     COPLIN  ET  ux.  v.  UNITED  STATES;  and 
No.  85-560.     MATTOX  ET  ux.  v.  UNITED  STATES.     C.  A.  Fed. 
Cir.      Certiorari  granted,  cases  consolidated,  and  a  total  of  one 
hour  allotted  for  oral  argument.     Reported  below:  761  F.  2d  688. 

No.  85-660.  COLORADO  v.  CONNELLY.  Sup.  Ct.  Colo.  Mo- 
tion of  Duane  Woodard,  Attorney  General  of  Colorado,  et  al.  for 
leave  to  file  a  brief  as  amid  curiae  granted.  Motion  of  respond- 
ent for  leave  to  proceed  in  forma  pauperis  and  certiorari  granted. 
In  addition  to  the  question  presented  by  the  petition  for  writ  of 
certiorari,  the  parties  are  requested  to  brief  and  argue  the  follow- 
ing question:  "Did  respondent's  mental  condition  render  his  waiver 
of  Miranda  rights  ineffective?"  Application  for  stay,  presented 
to  JUSTICE  WHITE,  and  by  him  referred  to  the  Court,  is  granted 
pending  the  issuance  of  the  mandate  of  this  Court.  Reported 
below:  702  P.  2d  722. 

Memorandum  of  JUSTICE  BRENNAN,  with  whom  JUSTICE 
STEVENS  joins. 

This  grant  of  certiorari  is  yet  another  instance  supporting  the 
concern  that  the  Court  shows  an  unseemly  eagerness  to  act  as 
'the  adjunct  of  the  State  and  its  prosecutors  in  facilitating  effi- 
cient and  expedient  conviction  .  .  .  ."  Wainwright  v.  Witt,  469 
U.  S.  412,  463  (1985)  (BRENNAN,  J.,  dissenting).  Most  often,  this 
concern  has  been  evoked  by  the  Court's  overly  narrow  interpreta- 
tions of  the  Constitution's  fundamental  guarantees  and  the  laws 
established  to  secure  relief  from  violations  of  those  guarantees. 
See  ibid.;  United  States  v.  Leon,  468  U.  S.  897,  928-929  (1984) 
(BRENNAN,  J.,  dissenting).  However,  the  Court's  willingness  to 
take  special  judicial  action  to  assist  the  prosecutor  has  not  been 
limited  to  its  interpretations  of  substantive  law.  For  example,  in 
New  Jersey  v.  T.  L.  O.,  469  U.  S.  325  (1985),  reargument  was  di- 
rected on  a  constitutional  question  not  raised  by  either  party  be- 
cause it  provided  a  broader  basis  for  upholding  the  State's  action. 
Similarly,  two  Terms  ago,  JUSTICE  STEVENS  noted  the  "quite 
striking"  fact  that  during  the  preceding  two-and-a-half  years 
the  Court  had  summarily  reversed,  without  briefing  or  oral 
argument,  19  criminal  cases— every  one  on  the  petition  of  the 
warden  or  the  prosecutor  and  every  one  in  his  favor.  Florida  v. 


ORDERS  1051 

1050  Memorandum  of  BRENNAN,  J. 

Meyers,  466  U.  S.  380,  385-387,  and  n.  3  (1984)  (STEVENS,  J.,  dis- 
senting). Nothing  has  changed  in  the  year  and  a  half  since  that 
decision,  for,  although  in  the  immediate  wake  of  JUSTICE  STE- 
VENS' dissent  the  Court  did  summarily  reverse  a  few  convictions 
on  the  petition  of  a  criminal  defendant,  the  trend  to  grant  sum- 
mary dispositions  only  in  favor  of  the  prosecutor  has  resumed  and 
the  record  now  stands  at  26-4.  *  No  particularly  informed  under- 
standing of  statistics  is  required  to  appreciate  that  the  likelihood 
of  courts  so  consistently  erring  in  favor  of  defendants  is  truly  re- 
mote and  that  only  a  one-sided  exercise  of  discretion  can  explain 
these  results. 

The  Court's  treatment  of  this  case  provides  another  clear  exam- 
ple of  why  there  is  concern  that  the  Court  engages  in  injudicious 
efforts  to  assist  prosecutors.  Today,  the  Court  takes  the  unprec- 
edented step  of  rewriting  a  prosecutor's  certiorari  petition  for 
him,  enabling  him  to  seek  reversal  on  a  ground  he  did  not  present 
himself.2 

Respondent  approached  a  uniformed  police  officer  and  stated 
that  "he  had  killed  someone"  and  wanted  to  tell  the  officer  about 
it.  Before  questioning  respondent  about  the  killing,  the  officer 
informed  respondent  of  his  Miranda  rights.  Respondent  waived 


1  The  four  cases  since  Florida  v.  Meyers  decided  in  favor  of  a  criminal  de- 
fendant are:  Payne  v.  Virginia,  468  U.  S.  1062  (1984)  (per  curiam);  Thomp- 
son v.  Louisiana,  469  U.  S.  17  (1984)  (per  curiam);  Smith  v.  Illinois,  469 
U.  S.  91  (1984)  (per  curiam);  and  Lanier  v.  South  Carolina,  ante,  p.  25 
(per  curiam).  The  seven  cases  decided  in  favor  of  the  warden  or  prosecu- 
tor during  that  same  period  are:  Massachusetts  v.  Upton,  466  U.  S.  727  (1984) 
(per  curiam);  Florida  v.  Rodriguez,  469  U.  S.  1  (1984)  (per  curiam);  United 
States  v.  Woodward,  469  U.  S.  105  (1984)  (per  curiam);  United  States  v.  Gag- 
non,  470  U.  S.  522  (1985)  (per  curiam);  United  States  v.  Benchimol,  471 
U.  S.  453  (1985)  (per  curiam);  Delaware  v.  Fensterer,  ante,  p.  15  (per 
curiam);  and  Pennsylvania  v.  Goldhammer,  ante,  p.  28  (per  curiam). 
Payne,  Thompson,  and  Smith  followed  closely  after  JUSTICE  STEVENS'  dis- 
sent in  Florida  v.  Meyers.  Since  Smith  was  decided  on  December  10,  1984, 
however,  five  of  the  last  six  summary  dispositions  have  been  in  favor  of  the 
prosecution. 

1  am  not  suggesting  that  all  the  summary  judgments  awarded  to  the  pros- 
ecution were  incorrect  or  improper,  although  I  did  not  agree  with  the  result  in 
many  of  the  cases.      It  is  the  Court's  selective  employment  of  its  summary 
disposition  power  only  in  favor  of  the  prosecution  that  is  most  disturbing. 

2  This  action  is  even  less  justifiable  than  the  improper  decision  to  order 
reargument  in  New  Jersey  v.   T.  L.  O.,  469  U.  S.  325  (1985),  since  here  the 
Court  cannot  even  point  to  having  heard  oral  argument  as  justification  for 
revising  the  issues  presented  to  suit  its  own  desires. 


1052  OCTOBER  TERM,  1985 

Memorandum  of  BRENNAN,  J.  474  U.  S. 

his  rights  and  proceeded  to  confess  to  the  murder  of  a  young  girl. 
After  being  charged  with  murder,  respondent  moved  to  suppress 
his  statements  as  made  involuntarily.  A  psychiatrist  testified 
that  respondent  believed  that  the  voice  of  God  had  commanded 
him  to  confess  or  commit  suicide.  The  psychiatrist  testified  that 
respondent  was  suffering  from  "chronic  paranoid  schizophrenia" 
and  "command  auditory  hallucinations"  when  he  confessed  and 
that  respondent's  actions  were  not  the  product  of  a  free  will.  The 
trial  court  suppressed  statements  made  both  before  and  after  the 
Miranda  warnings  were  given  on  the  ground  that  respondent's 
mental  state  rendered  these  confessions  involuntary  and  tainted 
his  waiver  of  the  Miranda  rights.  The  Colorado  Supreme  Court 
affirmed,  and  this  petition  followed.  The  prosecutor  carefully 
limited  his  petition  to  this  Court  to  challenge  only  the  suppression 
of  respondent's  initial,  unsolicited  statements.  The  petition  ex- 
pressly states  that  "[respondent's]  later  confession,  which  involves 
a  Miranda  issue,  is  not  an  issue  in  this  petition."  Pet.  for  Cert. 
15.  Despite  this,  the  Court  directs  the  parties  to  brief  and  argue 
that  issue. 

We  do  not  know  why  the  prosecutor  chose  not  to  seek  review  of 
the  Miranda  issue.  But,  whatever  the  reason,  review  was  not 
sought,  and  it  is  hardly  for  this  Court  to  "second  chair"  the  pros- 
ecutor to  alter  his  strategy  or  guard  him  from  mistakes.  Under 
this  Court's  Rule  21.1(a),  "[o]nly  the  questions  set  forth  in  the 
petition  or  fairly  included  therein  will  be  considered  by  the 
Court."  Given  petitioner's  express  disclaimer  that  the  Miranda 
issue  is  presented,  that  question  obviously  is  not  "fairly  included" 
in  the  question  submitted.  The  Court's  direction  that  the  parties 
address  it  anyway  makes  meaningless  in  this  case  the  provisions 
of  this  Rule  and  is  plainly  cause  for  concern,  particularly  since  it  is 
clear  that  a  similar  dispensation  would  not  be  granted  a  criminal 
defendant,  however  strong  his  claim.  In  asking  the  parties  to 
address  issues  that  the  State  chose  not  to  present  in  the  petition 
for  certiorari,  the  Court  goes  beyond  a  mere  philosophic  inclina- 
tion to  facilitate  criminal  prosecution:  the  Court  gives  the  appear- 
ance of  being  not  merely  the  champion,  but  actually  an  arm,  of  the 
prosecution.8 


8 1  express  no  views  about  the  merits  of  the  issues  on  which  certiorari  is 
now  granted.  See  Ohio  ex  rel.  Eaton  v.  Price,  360  U.  S.  246  (1959)  (state- 
ment of  BRENNAN,  J.). 


ORDERS  1053 

474  U.  S.  January  13,  1986 

I  realize  that,  in  itself,  this  order  is  not  a  matter  of  great  signifi- 
cance. But  even  matters  of  small  effect  can  cloak  issues  of  great 
moment.  In  making  the  specific  guarantees  of  the  Bill  of  Rights  a 
part  of  our  fundamental  law,  the  Framers  recognized  that  limitless 
state  power  afflicts  the  innocent  as  well  as  the  guilty,  that  even  a 
crime-free  "world  is  not  worth  the  fear  and  oppression  that  inev- 
itably follow  unrestricted  police  power,  and  that  a  truly  free  soci- 
ety is  one  in  which  every  citizen— guilty  or  innocent — is  treated 
fairly  and  accorded  dignity  and  respect  by  the  State.  Of  course, 
the  Pramers  could  not  foresee  the  shape  our  society  would  take  as 
the  Nation  developed.  Nor  could  they  foresee  how  the  police 
function  would  evolve  to  keep  pace.  Rather,  it  has  fallen  to  this 
Court — the  "ultimate  interpreter  of  the  Constitution,"  Baker  v. 
Carr,  369  U.  S.  186,  211  (1962)— to  enforce  the  rights  enshrined  in 
the  Bill  of  Rights  and  preserve  the  principles  established  in  1789. 
Ours  is  the  duty  to  prevent  encroachment  on  these  principles  by 
overzealous  police  in  the  discharge  of  their  great  responsibility  to 
prevent  crime.  Every  law-abiding  citizen  shares  with  the  Court 
the  belief  that  the  prevention  of  crime  is  an  essential  govern- 
mental function.  However,  the  Members  of  this  Court  have  the 
special  responsibility  to  recognize  that,  as  essential  as  is  the  goal 
of  preventing  crime,  "the  Court  must  be  ever  mindful  of  its  pri- 
mary role  as  the  protector  of  the  citizen  and  not  the  warden  or  the 
prosecutor."  Florida  v.  Meyers,  466  U.  S.,  at  387  (STEVENS,  J., 
dissenting).  This  Court  has,  sadly,  lost  sight  of  this  role,  to  the 
detriment  of  the  rights  of  each  of  us.  I  can  only  repeat:  "One  can 
only  hope  that  this  day  too  will  soon  pass."  Wainwright  v.  Witt, 
469  U.  S.,  at  463  (BRENNAN,  J.,  dissenting). 

No.  85-954.  JAPAN  WHALING  ASSN.  ET  AL.  v.  AMERICAN 
CETACEAN  SOCIETY  ET  AL.;  and 

No.  85-955.  BALDRIGE,  SECRETARY  OF  COMMERCE,  ET  AL.  v. 
AMERICAN  CETACEAN  SOCIETY  ET  AL.  C.  A.  D.  C.  Cir.  Motion 
of  respondents  to  expedite  consideration  of  the  petitions  for  writs 
of  certiorari  granted.  Certiorari  granted,  cases  consolidated,  and 
a  total  of  one  hour  allotted  for  oral  argument.  Cases  are  sched- 
uled for  oral  argument  this  Term.  Reported  below:  247  U.  S. 
App.  D.  C.  309,  768  F.  2d  426. 

Certioraw  Denied.     (See  also  No.  85-5455,  supra.) 

No.  84-951.  GULF  COAST  CABLE  TELEVISION  Co.  v.  AFFIL- 
IATED CAPITAL  CORP.  C.  A.  5th  Cir.  Certiorari  denied. 
Reported  below:  735  F.  2d  1555  and  741  F.  2d  766. 


1054  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

No.  84-1604.  GUZMAN  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  754  F.  2d  482. 

No.  84-1800.  WALTERS  ET  AL.  v.  SPRUYTTE.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  753  F.  2d  498. 

No.  84-6826.  WILEY  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  654. 

No.  84-6848.  ARAGON  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  84-6913.  SIMONS  v.  MONTGOMERY  COUNTY  DEPARTMENT 
OF  POLICE  ET  AL.  C.  A.  4th  Cir.  Certiorari  denied.  Reported 
below:  762  F.  2d  30. 

No.  84-6981.  PAYNE  v.  COUGHLIN  ET  AL.  C.  A.  2d  Cir. 
Certiorari  denied. 

No.  84-6993.  LOPEZ  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  1517. 

No.  85-137.  LAVADO  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  750  F.  2d  1527. 

No.  85-259.  MISLEH  u  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  85-294.  HUDSPETH  v.  NORTH  MISSISSIPPI  SAVINGS  & 
LOAN  ASSN.  ET  AL.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  756  F.  2d  1096. 

No.  85-329.  BRYANT  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  766  F.  2d  370. 

No.  85-346.  SCHWENDER  v.  DEPARTMENT  OF  LABOR.  C.  A. 
Fed.  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  178. 

No.  85-386.  PAPPY,  KAPLON,  VOGEL  &  PHILLIPS  ET  AL.  v. 
ARAGON.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below: 
750  F.  2d  1447. 

No.  85-392.  SECURITIES  INDUSTRY  ASSN.  v.  COMPTROLLER 
OF  THE  CURRENCY  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  denied. 
Reported  below:  244  U.  S.  App.  D.  C.  419,  758  F.  2d  739. 

No.  85-405.  UVIEDO  v.  STEVES  SASH  &  DOOR  Co.  C.  A.  5th 
Cir.  Certiorari  denied.  Reported  below:  738  F.  2d  1425,  753  F. 
2d  369,  and  760  F.  2d  87. 


ORDERS  1055 

474  U.  S.  January  13,  1986 

No.  85-408.  QUIVIRA  MINING  Co.  ET  AL.  v.  UNITED  STATES 
ENVIRONMENTAL  PROTECTION  AGENCY.  C.  A.  10th  Cir.  Cer- 
tiorari  denied.  Reported  below:  765  F.  2d  126. 

No.  85-411.  VIVITAR  CORP.  v.  UNITED  STATES  ET  AL.  C.  A. 
Fed.  Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  1552. 

No.  85-431.  HUMANA  INC.  ET  AL.  v.  BOWEN,  SECRETARY  OF 
HEALTH  AND  HUMAN  SERVICES.  C.  A.  D.  C.  Cir.  Certiorari 
denied.  Reported  below:  244  U.  S.  App.  D.  C.  376,  758  F.  2d 
696. 

No.  85-438.  SIMMONS  v.  INTERSTATE  COMMERCE  COMMISSION 
ET  AL.  (two  cases).  C.  A.  7th  Cir.  Certiorari  denied.  Re- 
ported below:  760  F.  2d  126  (first  case);  766  F.  2d  1177  (second 
case). 

No.  85-445.  DEFAZIO  ET  AL.  u  CITY  OF  SPRINGFIELD  ET  AL. 
C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  752  F.  2d 
1423. 

No.  85-456.  AMERICAN  POSTAL  WORKERS  UNION,  AFL-CIO 
v.  UNITED  STATES  POSTAL  SERVICE  ET  AL.  C.  A.  D.  C.  Cir. 
Certiorari  denied.  Reported  below:  246  U.  S.  App.  D.  C.  225, 
764  F.  2d  858. 

No.  85-469.  TOWN  OF  BELMONT,  NEW  HAMPSHIRE  v.  DOLE, 
SECRETARY  OF  TRANSPORTATION.  C.  A.  1st  Cir.  Certiorari 
denied.  Reported  below:  766  F.  2d  28. 

No.  85-504.  LUNDAY-THAGARD  Co.  v.  UNITED  STATES  DE- 
PARTMENT OF  THE  INTERIOR.  Temp.  Emerg.  Ct.  App.  Certio- 
rari denied.  Reported  below:  773  F.  2d  322. 

No.  85-508.  AVERY  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  1219  and  767  F.  2d 
1494. 

No.  85-512.  FOSTER  ET  AL.  v.  COMMISSIONER  OF  INTERNAL 
REVENUE.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below: 
756  F.  2d  1430. 

No.  85-515.  GRONOWICZ  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  764  F.  2d  983. 

No.  85-529.  Hou  HAWAIIANS  v.  HAWAII  ET  AL.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  764  F.  2d  623. 


1056  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

No.  85-562.  SPEKA  ET  AL.  v.  VILLAGE  OF  LOMBARD,  ILLINOIS. 
C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  763  F.  2d 
282. 

No.  85-574.  THOELE  ET  AL.  v.  CITY  OF  CHICAGO  ET  AL. 
C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  766  F.  2d 
1053. 

No.  85-592.  NATURAL  GAS  PIPELINE  COMPANY  OF  AMERICA 
v.  FEDERAL  ENERGY  REGULATORY  COMMISSION.  C.  A.  D.  C. 
Cir.  Certiorari  denied.  Reported  below:  247  U.  S.  App.  D.  C. 
1,  765  F.  2d  1155. 

No.  85-601.     CURREY  v.  WAPFENSCHMIDT  ET  ux.;  and 

No.  85-764.      WAFFENSCHMIDT  ET  AL.   v.   FIRST  NATIONAL 

BANK  OF  MOUNT  VERNON,  TEXAS.      C.  A.  5th  Cir.      Certiorari 

denied.     Reported  below:  763  F.  2d  711. 

No.  85-602.  BANKERS  &  SHIPPERS  INSURANCE  COMPANY  OF 
NEW  YORK  v.  MARSHALL  ET  AL.  Sup.  Ct.  App.  W.  Va.  Certio- 
rari denied. 

No.  85-603.  ESTATE  OF  SMITH  v,  UNITED  STATES.  C.  A.  5th 
Cir.  Certiorari  denied.  Reported  below:  765  F.  2d  1119. 

No.  85-604.  SCARNATI  u  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  896. 

No.  85-613.  COMMUNITY  HEALTH  SERVICES  OF  CRAWFORD 
COUNTY,  INC.  v.  TRAVELERS  INSURANCE  Cos.  ET  AL.  C.  A.  3d 
Cir.  Certiorari  denied.  Reported  below:  772  F.  2d  893. 

No.  85-653.  CITY  OF  CLEVELAND  HEIGHTS,  OHIO,  ET  AL.  v. 
SMITH.  C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  760 
F.  2d  720. 

No.  85-675.  FOUR  MILLION,  Two  HUNDRED  FIFTY-FIVE 
THOUSAND,  Six  HUNDRED  TWENTY-FIVE  DOLLARS  AND  THIRTY- 
NINE  CENTS  ($4,255,625.39),  ET  AL.  v.  UNITED  STATES.  C.  A. 
llth  Cir.  Certiorari  denied.  Reported  below:  762  F.  2d  895. 

No.  85-681.  WESTERN  RESERVE  OIL  &  GAS  Co.,  LTD.,  ET  AL. 
v.  NEW  ET  AL.  C.  A.  9th  Cir.  Certiorari  denied.  Reported 
below:  765  F.  2d  1428. 

No.  85-683.  KWANG-WEI  HAN  v.  PILATO  ET  ux.  Ct.  App. 
Cal.,  4th  App.  Dist.  Certiorari  denied. 


ORDERS  1057 

474  U.  S.  January  13,  1986 

No.  85-704.  CALL  ET  AL.  v.  CITY  OF  ALBANY,  CALIFORNIA, 
ET  AL.  Sup.  Ct.  Cal.  Certiorari  denied.  Reported  below:  38 
Cal.  3d  633,  699  P.  2d  316. 

No.  85-712.  JOHN  E.  KOERNER  &  Co.  ET  AL.  v.  PLAINTIFF 
CLASS  REPRESENTATIVES,  CORN  DERIVATIVES  ANTITRUST  LITI- 
GATION, ET  AL.  C.  A.  3d  Cir.  Certiorari  denied.  Reported 
below:  772  F.  2d  894. 

No.  85-725.  MATJGET  v.  KAISER  ENGINEERS,  INC.,  ET  AL. 
C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  772  F.  2d 
907. 

No.  85-731.  SINCLAIR  INTERNATIONAL  ET  AL.  v.  MAXFIELD. 
C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  766  F.  2d  788. 

No.  85-740.  STATE  SAVINGS  &  LOAN  ASSN.  v.  FEDERAL 
HOME  LOAN  BANK  BOARD  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari 
denied.  Reported  below:  246  U.  S.  App.  D.  C.  293,  764  F.  2d 
926. 

No.  85-743.  STEWART  v.  SEARS  ET  AL.  Ct.  App.  Ohio, 
Franklin  County.  Certiorari  denied. 

No.  85-752.  MICHAELS  ET  AL.  v.  MICHAELS.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  1185. 

No.  85-753.  PENNINGTON,  ADMINISTRATOR  FOR  THE  ESTATE 
OF  TORRES  v.  FLOTA  MERCANTE  GRANCOLOMBIANA,  S.A.,  ET  AL. 
C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d 
1074. 

No.  85-754.  GREATER  BATON  ROUGE  PORT  COMMISSION  v. 
JACINTOPORT  CORP.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  762  F.  2d  435. 

No.  85-762.  METGE,  EXECUTRIX  OF  THE  ESTATE  OF  METGE, 
ET  AL.  v.  BANKERS  TRUST  Co.  C.  A.  8th  Cir.  Certiorari  de- 
nied. Reported  below:  762  F.  2d  621. 

No.  85-763.  WHITE  v.  MINNESOTA.  Ct.  App.  Minn.  Certio- 
rari denied.  Reported  below:  369  N.  W.  2d  301. 

No.  85-768.  LEONE  ET  AL.  v.  PIERCE  COUNTY  MEDICAL 
BUREAU  ET  AL.  C.  A.  9th  Cir.  Certiorari  denied.  Reported 
below:  767  F.  2d  932. 


1058  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

No.  85-771.  BARON  v.  MELONI,  INDIVIDUALLY  AND  AS  SHER- 
IFF OF  MONROE  COUNTY,  ET  AL.  C.  A.  2d  Cir.  Certiorari 
denied.  Reported  below:  779  F.  2d  36. 

No.  85-772.  BROWN  v.  WASHINGTON.  Super.  Ct.  Wash., 
King  County.  Certiorari  denied. 

No.  85-774.  PALAZZO  v.  GULF  OIL  CORP.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  764  F.  2d  1381. 

No.  85-776.  VARNES  v.  FORBES  ET  AL.  C.  A.  7th  Cir.  Cer- 
tiorari denied.  Reported  below:  774  F.  2d  1167. 

No.  85-778.  WORRE  v.  DEPARTMENT  OF  REVENUE  OF  ORE- 
GON. Sup.  Ct.  Ore.  Certiorari  denied.  Reported  below:  299 
Ore.  444,  703  P.  2d  230. 

No.  85-779.     KAHN  v.  ALEXANDER  GRANT  &  Co.;  and 

No.    85-780.      TIFFANY    INDUSTRIES,    INC.    v.    ALEXANDER 

GRANT  &  Co.      C.  A.   8th  Cir.      Certiorari  denied.      Reported 

below:  770  F.  2d  717. 

No.  85-788.  BOGARAT  v.  EMERSON  ET  AL.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  174. 

No.  85-789.  HIEGEL  v.  HILL  ET  AL.  C.  A.  8th  Cir.  Certio- 
rari denied.  Reported  below:  771  F.  2d  358. 

No.  85-795.  BENNETT  ET  AL.  v.  UNITED  STATES  TRUST 
COMPANY  OF  NEW  YORK.  C.  A.  2d  Cir.  Certiorari  denied. 
Reported  below:  770  F.  2d  308. 

No.  85-803.  TURNER  ET  AL.  v.  C  F  &  I  STEEL  CORP.  ET  AL. 
C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  43. 

No.  85-806.  ELLIOTT  v.  OHIO.  Ct.  App.  Ohio,  Hamilton 
County.  Certiorari  denied. 

No.  85-807.  OHIO  v.  AKRON  AIRPORT  POST  No.  8975,  VETER- 
ANS OF  FOREIGN  WARS  OF  THE  UNITED  STATES.  Sup.  Ct.  Ohio. 
Certiorari  denied.  Reported  below:  19  Ohio  St.  3d  49,  482  N.  E. 
2d  606. 

No.  85-808.  GLEASON  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  766  F.  2d  1239. 

No.  85-809.  PLUMMER  v.  AMAN  ET  AL.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  Reported  below:  772  F.  2d  896. 


ORDERS  1059 

474  U.  S.  January  13,  1986 

No.  85-810.  MICHIGAN  UNITED  FOOD  &  COMMERCIAL  WORK- 
ERS UNIONS  ET  AL.  v.  BAERWALDT,  COMMISSIONER  OF  INSUR- 
ANCE OF  MICHIGAN,  ET  AL.  C.  A.  6th  Cir.  Certiorari  denied. 
Reported  below:  767  F.  2d  308. 

No.  85-811.  WILSON  ET  ux.  v.  SEARS,  ROEBUCK  &  Co. 
C.  A.  8th  Cir.  Certiorari  denied.  Reported  below:  757  F.  2d 
948. 

No.  85-812.  VANTERPOOL  ET  ux.  v.  HESS  OIL  VIRGIN  IS- 
LANDS CORP.  C.  A.  3d  Cir.  Certiorari  denied.  Reported 
below:  766  F.  2d  117. 

No.  85-813.  MINNESOTA  TIMBER  PRODUCERS  ASSN.,  INC.  v. 
AMERICAN  MUTUAL  INSURANCE  COMPANY  OF  BOSTON,  C.  A. 
8th  Cir.  Certiorari  denied.  Reported  below:  766  F.  2d  1261. 

No.  85-814.  KAPLUS  v.  PHILLIPS  ET  AL.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  764  F.  2d  807. 

No.  85-817.  AJAC  TRANSMISSION  PARTS  CORP.  ET  AL.  v. 
TRANSGO,  INC.  C.  A.  9th  Cir.  Certiorari  denied.  Reported 
below:  768  F.  2d  1001. 

No.  85-818.  BLACK  ET  AL.  v.  WYCHE.  Dist.  Ct.  App.  Fla., 
3d  Dist.  Certiorari  denied.  Reported  below:  472  So.  2d  1195. 

No.  85-819.  AIR  LINE  STEWARDS  &  STEWARDESSES  ASSN., 
LOCAL  550,  TWU,  AFL-CIO,  ET  AL.  v.  AMERICAN  AIRLINES, 
INC.  C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  763  F. 
2d  875. 

No.  85-820.  NORWOOD  v.  INA  LIFE  INSURANCE  Co.  ET  AL. 
C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  758  F.  2d 
656. 

No.  85-823.  GEORGIA  DEPARTMENT  OF  MEDICAL  ASSISTANCE 
v.  BOWEN,  SECRETARY,  DEPARTMENT  OF  HEALTH  AND  HUMAN 
SERVICES,  ET  AL.  C.  A.  llth  Cir.  Certiorari  denied.  Re- 
ported below:  768  F.  2d  1293. 

No.  85-826.  GOLIN  v.  BROOKHAVEN  NATIONAL  LABORATORY. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  765  F.  2d  135. 

No.  85-827.  STEVENS  ET  AL.  v.  CALIFORNIA.  App.  Dept., 
Super.  Ct.  Cal.,  County  of  San  Francisco.  Certiorari  denied. 


1060  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

No.  85-828.  LOCAL  UNION  542,  INTERNATIONAL  UNION  OF 
OPERATING  ENGINEERS  v.  PENNSYLVANIA  ET  AL.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1068. 

No.  85-829.  GEORGE  A.  CREED  &  SON,  INC.  v.  TRIDENT 
TECHNICAL  COLLEGE  ET  AL.  Sup.  Ct.  S.  C.  Certiorari  denied. 
Reported  below:  286  S.  C.  98,  333  S.  E.  2d  781. 

No.  85-831.  HOTEL  &  RESTAURANT  EMPLOYEES  &  BARTEND- 
ERS UNION,  LOCAL  28  v.  SERITIS  ET  AL.  Ct.  App.  CaL,  1st  App. 
Dist.  Certiorari  denied. 

No.  85-832.  WHITTAKER  CORP.  v.  OLYMPIC  SPORTS  PROD- 
UCTS, INC.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below: 
760  F.  2d  910. 

No.  85-835.  MORTON  v.  CALIFORNIA.  Ct.  App.  Cal.,  4th 
App.  Dist.  Certiorari  denied. 

No.  85-836.  GEL  SPICE  Co.,  INC.,  ET  AL.  v.  UNITED  STATES. 
C.  A.  2d  Cir.  Certiorari  denied.  Reported  below:  773  F.  2d  427. 

No.  85-837.  KARAPINKA  v.  UNION  CARBIDE  CORP.  C.  A.  2d 
Cir.  Certiorari  denied. 

No.  85-838.  KARAM,  SPECIAL  ADMINISTRATRIX  OF  THE  ES- 
TATE OF  KARAM  v.  UNITED  STATES.  C.  A.  7th  Cir.  Certiorari 
denied.  -Reported  below:  774  F.  2d  1167. 

No.  85-839.  LACHICA  v.  IMMIGRATION  AND  NATURALIZATION 
SERVICE.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below: 
774  F.  2d  1174. 

No.  85-841.  CURRIE  ET  AL.  V.  BARRY,  MAYOR  OF  THE  DIS- 
TRICT OF  COLUMBIA,  ET  AL.  C.  A.  D.  C.  Cir.  Certiorari 
denied. 

No.  85-842.  CITY  OF  DES  MOINES,  IOWA,  ET  AL.  v.  MOORE 
ET  AL.  C.  A.  8th  Cir.  Certiorari  denied.  Reported  below:  766 
F.  2d  343. 

No.  85-852.  PRESTON  CARROLL  Co.,  INC.,  ET  AL.  v.  MORRI- 
SON ASSURANCE  Co.  Sup.  Ct.  Ga.  Certiorari  denied.  Re- 
ported below:  254  Ga.  608,  331  S.  E.  2d  520. 

No.  85-864.  DA-CHUAN  ZHENG  ET  AL.  v.  UNITED  STATES. 
C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  768  F.  2d  518. 


ORDERS  1061 

474  U.  S.  January  13,  1986 

No.  85-853.  MCLAIN,  SHERIFF,  LINCOLN  COUNTY,  OKLA- 
HOMA v.  WALKER.  C.  A.  10th  Cir.  Certiorari  denied.  Re- 
ported below:  768  F.  2d  1181. 

No.  85-866.  HOLMES  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  764  F.  2d  763. 

No.  85-880.      DIRECTORY  SERVICE  COMPANY  OF  COLORADO, 

INC.,    ET    AL.    V.    ROCKFORD   MAP    PUBLISHERS,    INC.        C.  A.    7th 

Cir.     Certiorari  denied.     Reported  below:  768  F.  2d  145. 

No.  85-893.  HUNT  ET  AL.  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  161. 

No.  85-903.  CERTAIN  UNNAMED  PROSPECTIVE  DEFENDANTS 
v.  NEWSPAPERS,  INC.,  ET  AL.  Sup.  Ct.  Wis.  Certiorari  denied. 
Reported  below:  124  Wis.  2d  499,  370  N.  W.  2d  209. 

No.  85-905.  SALISBURY  v.  JAMES  RIVER  CORP.  ET  AL.  C.  A. 
6th  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  167. 

No.  85-906.  IN  RE  MARTIN-TRIGONA.  C.  A.  2d  Cir.  Certio- 
rari denied.  Reported  below:  763  F.  2d  140. 

No.  85-909.  NAMENWIRTH  v.  BOARD  OF  REGENTS  OF  THE 
UNIVERSITY  OF  WISCONSIN  SYSTEM.  C.  A.  7th  Cir.  Certiorari 
denied.  Reported  below:  769  F.  2d  1235. 

No.  85-911.  MARTY  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  1351. 

No.  85-915.  LAW  FIRM  OF  DANIEL  P.  FOSTER,  P.  C.  v. 
UNITED  STATES.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  779  F.  2d  35. 

No.  85-916.  LAW  FIRM  OF  DANIEL  P.  FOSTER,  P.  C.  v. 
UNITED  STATES.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  779  F.  2d  35. 

No.  85-923.  MILLS  ET  AL.  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  764  F.  2d  373. 

No.  85-931.  KIRKLEY  v.  LOUISIANA.  Ct.  App.  La.,  1st  Cir. 
Certiorari  denied.  Reported  below:  470  So.  2d  1001. 

No.  85-932.  MARIN  ET  AL.  v.  DEPARTMENT  OF  HEALTH  AND 
HUMAN  SERVICES  ET  AL.  C.  A.  9th  Cir.  Certiorari  denied. 
Reported  below:  769  F.  2d  590. 


1062  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

No.  85-933.  CARROLLO  ET  AL.  v.  UNITED  STATES.  C.  A.  8th 
Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  744. 

No.  85-939.  RAMIE  v.  CITY  OF  HEDWIG  VILLAGE,  TEXAS,  ET 
AL.  C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  765  F. 
2d  490. 

No.  85-943.  MALLET  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  779  F.  2d  44. 

No.  85-947.  SCHOOL  BOARD  OF  PINELLAS  COUNTY,  FLORIDA 
v.  MANECKE  ET  AL.  C.  A.  llth  Cir.  Certiorari  denied.  Re- 
ported below:  762  F.  2d  912. 

No.  85-957.  VIGNES  v.  VIRGINIA.  Sup.  Ct.  Va.  Certiorari 
denied. 

No.  85-962.  HERSHEY  v.  UNITED  STATES.  Ct.  Mil.  App. 
Certiorari  denied.  Reported  below:  20  M.  J.  433. 

No.  85-963.  HOLMAN  v.  UNITED  STATES.  Ct.  Mil.  App. 
Certiorari  denied.  Reported  below:  21  M.  J.  149. 

No.  85-981.  CONTACT  LENS  MANUFACTURERS  ASSN.  v.  FOOD 
AND  DRUG  ADMINISTRATION  OF  THE  DEPARTMENT  OF  HEALTH 
AND  HUMAN  SERVICES.  C.  A.  D.  C.  Cir.  Certiorari  denied. 
Reported  below:  247  U.  S.  App.  D.  C.  102,  766  F.  2d  592. 

No.  85-996.  HILBMANN  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  779  F.  2d  44. 

No.  85-5011.  BARRIENTOS  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  1152. 

No.  85-5013.  DARWIN  v.  RISON  ET  AL.  C.  A.  llth  Cir.  Cer- 
tiorari denied.  Reported  below:  757  F.  2d  285. 

No.  85-5100.  ALDRIDGE  v.  MORRIS,  SUPERINTENDENT, 
SOUTHERN  OHIO  CORRECTIONAL  FACILITY,  ET  AL.  C.  A.  6th 
Cir.  Certiorari  denied.  Reported  below:  765  F.  2d  63. 

No.  85-5205.  COCHRAN  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  1118. 

No.  85-5227.  GARMANY  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  929. 


ORDERS  1063 

474  U.  S.  January  13,  1986 

No.  85-5234.  BEZOLD  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  760  F.  2d  999. 

No.  85-5240.  PRICE  v.  MCCOTTER,  DIRECTOR,  TEXAS  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 

No.  85-5248.  SCOTT  v.  RocKVTEW  STATE  CORRECTIONAL  IN- 
STITUTION ET  AL.  C.  A.  3d  Cir.  Certiorari  denied. 

No.  85-5293.  PERPIGNAND  v.  UNITED  STATES.  C.  A.  5th 
Cir.  Certiorari  denied.  Reported  below:  765  F.  2d  438. 

No.  85-5302.  SAWYER  v.  FULCOMER,  SUPERINTENDENT, 
STATE  INSTITUTION  AT  HUNTINGDON.  C.  A.  3d  Cir.  Certiorari 
denied. 

No.  85-5307.  KABONGO  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1012. 

No.  85-5350.  STAUFFER  ET  AL.  v.  UNITED  STATES.  C.  A. 
6th  Cir.  Certiorari  denied.  Reported  below:  763  F.  2d  202. 

No.  85-5362.  DUNLAP  v.  MASSEY,  SUPERINTENDENT,  UNION 
CORRECTIONAL  INSTITUTION,  ET  AL.  C.  A.  llth  Cir.  Certiorari 
denied.  Reported  below:  765  F.  2d  152. 

No.  85-5371.  CORBETT  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  167. 

No.  85-5380.  JACKSON  v.  GENERAL  DYNAMICS,  INC.  C.  A. 
5th  Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  693. 

No.  85-5439.  JOHNSON  v.  MANSON,  COMMISSIONER  OF  COR- 
RECTIONS OF  CONNECTICUT.  Sup.  Ct.  Conn.  Certiorari  denied. 
Reported  below:  196  Conn.  309,  493  A.  2d  846. 

No.  85-5449.  DUNBAR  v.  SOUTH  CAROLINA.  Sup.  Ct.  S.  C. 
Certiorari  denied. 

No.  85-5467.  LOPES  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  150. 

No.  85-5481.  BARKER  v.  MORRIS,  WARDEN,  ET  AL.  C.  A. 
9th  Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  1396. 

No.  85-5502.  DOE  ET  AL.  v.  NEW  MEXICO.  Sup.  Ct.  N.  M. 
Certiorari  denied.  Reported  below:  103  N.  M.  177,  704  P.  2d  431. 


1064  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

No.  85-5512.  GRAVES  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied.  Reported  below:  490  A.  2d  1086. 

No.  85-5520.  TREADWELL,  AKA  BARRY  v.  UNITED  STATES. 
C.  A.  D.  C.  Cir.  Certiorari  denied.  Reported  below:  245  U.  S. 
App.  D.  C.  257,  760  F.  2d  327. 

No.  85-5522.  REEVES  v.  BOWEN,  SECRETARY  OF  HEALTH 
AND  HUMAN  SERVICES.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  757  F.  2d  283. 

No.  85-5532.     CAMPMAN  u  UNITED  STATES;  and 
No.  85-5543.     STREETER  v.  UNITED  STATES.     C.  A.  9th  Cir. 
Certiorari  denied.     Reported  below:  770  F.  2d  171. 

No.  85-5546.  MCKNIGHT  v.  WAINWRIGHT,  SECRETARY,  FLOR- 
IDA DEPARTMENT  OF  CORRECTIONS,  ET  AL.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  152. 

No.  85-5565.  LUNDIEN  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  769  F.  2d  981. 

No.  85-5572.  ROYSTER  u  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  1491. 

No.  85-5594.  PETTY  v.  NEW  YORK.  App.  Div.,  Sup.  Ct. 
N.  Y.,  1st  Jud.  Dept.  Certiorari  denied.  Reported  below:  111 
App.  Div.  2d  96,  489  N.  Y.  S.  2d  811. 

No.  85-5615.  BROWN  u  UNITED  STATES.  C.  A.  1st  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  241. 

No.  85-5617.  AMADI  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  908. 

No.  85-5653.  OWENS  v.  RYAN,  SUPERINTENDENT,  STATE 
CORRECTIONAL  INSTITUTION  AT  DALLAS.  C.  A.  3d  Cir.  Certio- 
rari denied.  Reported  below:  774  F.  2d  1152. 

No.  85-5656.  MCQUEEN  v.  U.  S.  DISTRICT  COURT,  MIDDLE 
DISTRICT  OF  FLORIDA,  TAMPA  DIVISION.  C.  A.  llth  Cir.  Cer- 
tiorari denied. 

No.  85-5679.  PASKULY  v.  MARSHALL  FIELD  &  Co.  C.  A.  7th 
Cir.  Certiorari  denied. 


ORDERS  1065 

474  U.  S.  January  13,  1986 

No.  85-5700.  CODY  v.  DE  IORIO  ET  AL.  C.  A.  3d  Cir.  Cer- 
tiorari  denied.  Reported  below:  770  F.  2d  1067. 

No.  85-5703.  KEARSON  v.  SOUTHERN  BELL  TELEPHONE  & 
TELEGRAPH  Co.  ET  AL.  C.  A.  llth  Cir.  Certiorari  denied. 
Reported  below:  763  F.  2d  405. 

No.  85-5707.  GERINGER  v.  CALIFORNIA.  Ct.  App.  CaL,  2d 
App.  Dist.  Certiorari  denied. 

No.  85-5712.  BALTEZORE  v.  CONCORDIA  PARISH  SHERIFF'S 
DEPARTMENT  ET  AL.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  767  F.  2d  202. 

No.  85-5715.  TINKER-BEY  v.  DISTRICT  OF  COLUMBIA.  Ct. 
App.  D.  C.  Certiorari  denied. 

No.  85-5717.  WALKER  v.  PRISONER  REVIEW  BOARD  ET  AL. 
C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  769  F.  2d 
396. 

No.  85-5718.  ST.  AMAND  v.  JONES  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  934. 

No.  85-5720.  WILSON  v.  McMACKlN.  C.  A.  6th  Cir.  Certio- 
rari denied.  Reported  below:  779  F.  2d  53. 

No.  85-5723.  FULLER  v.  NORTH  CAROLINA  ET  AL.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  774  F.  2d  1154. 

No.  85-5724.  DAY  v.  AMOCO  CHEMICALS  CORP.  C.  A.  5th 
Cir.  Certiorari  denied. 

No.  85-5725.  GENTSCH  v.  ROBERSON  ET  AL.  C.  A.  5th  Cir. 
Certiorari  denied. 

No.  85-5726.  BERNARD  v.  NICKELS  ET  AL.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  159. 

No.  85-5730.  SHAFFER-CORONA  v.  DISTRICT  OF  COLUMBIA 
TEACHERS  FEDERAL  CREDIT  UNION.  Ct.  App.  D.  C.  Certio- 
rari denied. 

No.  85-5735.  WESTFALL  v.  SUPREME  COURT  OF  APPEALS  OF 
WEST  VIRGINIA.  Sup.  Ct.  App.  W.  Va.  Certiorari  denied. 

No.  85-5738.  COSSETT  ET  AL.  v.  LEDFORD,  TRUSTEE.  C.  A. 
6th  Cir.  Certiorari  before  judgment  denied. 


1066  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

No.  85-5746.  MITCHELL  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  769  F.  2d  1544. 

No.  85-5748.  WEST  v.  CAIN,  WARDEN.  C.  A.  5th  Cir.  Cer- 
tiorari denied.  Reported  below:  771  F.  2d  910. 

No.  85-5752.  RICHARDS  v.  NEW  YORK  ET  AL.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  908. 

No.  85-5753.  LIPSMAN  v.  NEW  YORK.  Ct.  App.  N.  Y.  Cer- 
tiorari denied.  Reported  below:  66  N.  Y.  2d  616,  485  N.  E.  2d 
243. 

No.  85-5756.  GEISON  v.  FIRESTONE,  SECRETARY  OF  STATE  OF 
FLORIDA,  ET  AL.  C.  A.  llth  Cir.  Certiorari  denied.  Reported 
below:  770  F.  2d  174. 

No.  85-5757.  CARROLL  v.  ILLINOIS.  Sup.  Ct.  111.  Certiorari 
denied.  Reported  below:  101  111.  2d  590. 

No.  85-5763.  THOMAS  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  903. 

No.  85-5764.  SELLNER  v.  MARYLAND.  Ct.  App.  Md.  Cer- 
tiorari denied.  Reported  below:  303  Md.  42,  491  A.  2d  1197. 

No.  85-5765.  HARRISON  v.  McDADE.  Sup.  Ct.  Ga.  Certio- 
rari denied.  Reported  below:  254  Ga.  XXIII,  332  S.  E.  2d  659. 

No.  85-5766.  GREEN  v.  MARYLAND.  Ct.  App.  Md.  Certio- 
rari denied.  Reported  below:  296  Md.  172. 

No.  85-5767.  HOLSEY  v.  MARYLAND.  Ct.  App.  Md.  Certio- 
rari denied.  Reported  below:  303  Md.  683,  496  A.  2d  682. 

No.  85-5769.  EVANS  v.  FULCOMER,  SUPERINTENDENT,  STATE 
CORRECTIONAL  INSTITUTION  AT  HUNTINGDON,  ET  AL.  C.  A.  3d 
Cir.  Certiorari  denied. 

No.  85-5775.  FELDER  v.  SOUTH  CAROLINA.  Sup.  Ct.  S.  C. 
Certiorari  denied. 

No.  85-5777.  PARKER  v.  FAIRMAN,  WARDEN,  ET  AL.  C.  A. 
7th  Cir.  Certiorari  denied.  Reported  below:  774  F.  2d  1168. 

No.  85-5778.  Ross  v.  MISSOURI.  Ct.  App.  Mo.,  Eastern  Dist. 
Certiorari  denied.  Reported  below:  693  S.  W.  2d  191. 


ORDERS  1067 

474  U.  S.  January  13,  1986 

No.  85-5779.  PooLE  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  773  F.  2d  1237. 

No.  85-5782.  LOJUK  v.  JOHNSON.  C.  A.  7th  Cir.  Certiorari 
denied.  Reported  below:  770  F.  2d  619. 

No.  85-5783.  KNIGHT  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  768. 

No.  85-5785.  REDDICK  v.  CONNECTICUT.  Sup.  Ct.  Conn. 
Certiorari  denied.  Reported  below:  197  Conn.  115,  496  A.  2d 
466. 

No.  85-5788.  DANIEL  v.  UNITED  STATES  PARCEL  SERVICE  ET 
AL.  C.  A.  D.  C.  Cir.  Certiorari  denied. 

No.  85-5789.  CANNIN  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  1351. 

No.  85-5791.  MYRICK  v.  PETSOCK,  SUPERINTENDENT,  STATE 
CORRECTIONAL  INSTITUTION  AND  DIAGNOSTIC  AND  CLASSIFICA- 
TION CENTER.  C.  A.  3d  Cir.  Certiorari  denied. 

No.  85-5796.  IVY  v.  REED,  FORMER  WARDEN,  ET  AL.  C.  A. 
7th  Cir.  Certiorari  denied. 

No.  85-5797.  AHMED  v.  HUGHES  AIRCRAFT  Co.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  169. 

No.  85-5798.  HENNESSY  v.  ARIZONA.  Sup.  Ct.  Ariz.  Cer- 
tiorari denied. 

No.  85-5801.  BUNCH  v.  UNITED  STATES.  C.  A.  3d  Cir, 
Certiorari  denied.  Reported  below:  770  F.  2d  1076. 

No.  85-5804.  HUNTER  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  762  F.  2d  1000. 

No.  85-5806.  CHANEY  v.  MARYLAND.  Ct.  App.  Md.  Certio- 
rari denied.  Reported  below:  304  Md.  21,  497  A.  2d  152. 

No.  85-5807.  LUCIEN  v.  CHRANS,  WARDEN.  C.  A.  7th  Cir. 
Certiorari  denied. 

No.  85-5808.  STANFORD  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  901. 


1068  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

No.  85-5809.    BUCKLEY  v.  COMMERCIAL  FEDERAL  SAVINGS  & 
LOAN  ET  AL.     C.  A.  8th  Cir.     Certiorari  denied. 

No.  85-5810.  HOOKS  v.  PHELPS,  SECRETARY,  LOUISIANA  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  5th  Cir.  Certiorari  denied. 

No.  85-5811.  ANDERSON  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  779  F.  2d  53. 

No.  85-5813.  SHABAZZ  v.  OKLAHOMA.  Ct.  Crim.  App.  Okla. 
Certiorari  denied. 

No.  85-5814.  OLIVA  u  UNITED  STATES.  C.  A.  2d  Cir.  Cer- 
tiorari denied.  Reported  below:  765  F.  2d  136. 

No.  85-5816.  GRAEWE  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  1504  and  774  F.  2d 
106. 

No.  85-5817.  ALLEN  v.  CALIFORNIA.  Sup.  Ct.  Cal.  Certio- 
rari denied. 

No.  85-5820.  JONES  v.  BROWN,  FORMER  GOVERNOR  OF  KEN- 
TUCKY, ET  AL.  C.  A.  6th  Cir.  Certiorari  denied.  Reported 
below:  779  F.  2d  51. 

No.  85-5826.  BUSBY  v.  HOLT,  WARDEN,  ET  AL.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  771  F.  2d  1461. 

No.  85-5827.  KNIGHT  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  85-5828.  GONZALES  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  1393. 

No.  85-5832.  McCALHSTER  v.  UNITED  STATES.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  772  F.  2d  915. 

No.  85-5834.  SMITH  v.  CITY  OF  OMAHA,  NEBRASKA,  ET  AL. 
Sup.  Ct.  Neb.  Certiorari  denied.  Reported  below:  220  Neb. 
217,  369  N.  W.  2d  67. 

No.  85-5836.  DEVAN  v.  CITY  OF  DES  MOINES,  IOWA,  ET  AL. 
C.  A.  8th  Cir.  Certiorari  denied.  Reported  below:  767  F.  2d 
423. 


ORDERS  1069 

474  U.  S.  January  13,  1986 

No.  85-5837.  CAMERON  v.  OREGON.  Ct.  App.  Ore.  Certio- 
rari  denied.  Keported  below:  74  Ore.  App.  367,  704  P.  2d  553. 

No.  85-5839.  GRAY  v.  DEPARTMENT  OF  TRANSPORTATION, 
FEDERAL  AVIATION  ADMINISTRATION.  C.  A.  Fed.  Cir.  Certio- 
rari  denied.  Reported  below:  776  F.  2d  1059. 

No.  85-5841.  TOOMEY  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  764  F.  2d  678. 

No.  85-5842.  VARGAS  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1175. 

No.  85-5848.  GRAEWE  v.  UNITED  STATES.  C.  A.  6th  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  1504  and  774  F.  2d 
106. 

No.  85-5849.  LOVETT  v.  MICHIGAN.  Ct.  App.  Mich.  Certio- 
rari denied. 

No.  85-5851.  KENDRICKS  v.  BROWN  ET  AL.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1071. 

No.  85-5860.  HOLLEMAN  v.  DUCKWORTH,  WARDEN,  ET  AL. 
C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d 
690. 

No.  85-5889.  RisPOLi  v.  UNITED  STATES  ET  AL.  C.  A.  2d 
Cir.  Certiorari  denied.  Reported  below:  779  F.  2d  35. 

No.  85-5924.  MULLINS  v.  NEWSOME,  SUPERINTENDENT, 
GEORGIA  STATE  PRISON.  C.  A.  llth  Cir.  Certiorari  denied. 
Reported  below:  772  F.  2d  917. 

No.  85-5968.  COOPER  u  COMMISSIONER  OF  INTERNAL  REVE- 
NUE. C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  767 
F.  2d  931. 

No.  84-1287.  LIPHETE  ET  AL.  v.  STIERHEIM  ET  AL.  Dist.  Ct. 
App.  Fla.,  3d  Dist.  Certiorari  denied.  JUSTICE  MARSHALL  and 
JUSTICE  BLACKMUN  would  grant  certiorari.  Reported  below:  455 
So.  2d  1348. 

No.  84-1745.  SCHILLING,  COMMISSIONER  OF  SAVINGS  AND 
LOAN  ASSOCIATIONS  FOR  ILLINOIS  v.  TELEGRAPH  SAVINGS  & 


1070  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

LOAN  ASSOCIATION  OF  CHICAGO  ET  AL.  Sup.  Ct.  111.  Certiorari 
denied.  JUSTICE  WHITE  and  JUSTICE  BLACKMUN  would  grant 
certiorari.  Reported  below:  105  111.  2d  166,  473  N.  E.  2d  921. 

No.  85-332.  PARISH  OF  ST.  BERNARD  ET  AL.  v.  UNITED 
STATES.  C.  A.  5th  Cir.  Certiorari  denied.  JUSTICE  BLACK- 
MUN and  JUSTICE  O'CONNOR  would  grant  certiorari.  Reported 
below:  756  F.  2d  1116. 

No.  85-334.  FIRESTONE  TIRE  &  RUBBER  Co.  ET  AL.  v. 
UNITED  STATES;  and 

No.  85-376.  ETHYL  CORP.  v.  UNITED  STATES  ET  AL.  C.  A. 
5th  Cir.  Certiorari  denied.  JUSTICE  POWELL  took  no  part  in  the 
consideration  or  decision  of  these  petitions.  Reported  below:  761 
F.  2d  1153. 

No.  85-391.  YOUNG  v.  ARKANSAS.  Sup.  Ct.  Ark.  Certiorari 
denied.  Reported  below:  286  Ark.  413,  692  S.  W.  2d  752. 

JUSTICE  WHITE,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

Arkansas  Stat.  Ann.  §41-1812  (1977)  provides,  in  pertinent 
part,  that  "[a]  person  commits  indecent  exposure  if,  with  purpose 
to  arouse  or  gratify  the  sexual  desire  of  himself  or  of  any  other 
person,  he  exposes  his  sex  organs  ...  in  a  public  place  or  public 
view  ...."*  Petitioner  was  a  nude  dancer  at  D.L.'s  Darkroom, 
a  tavern  in  Little  Rock,  Arkansas.  Along  with  nearly  every 
other  nude  dancer  in  the  metropolitan  area,  petitioner  was  ar- 
rested in  one  of  two  "sweep"  operations  conducted  in  February 
1984.  At  a  bench  trial,  an  undercover  police  officer  testified  that 
once  during  her  dance,  petitioner  touched  her  breasts,  and  then 
touched  the  inside  of  her  thighs.  At  no  time  did  petitioner  expose 
her  vaginal  area  or  touch  her  genitals.  The  Municipal  Court  con- 
victed petitioner  for  indecent  exposure  under  §  41-1812,  fined  her 
$700,  and  gave  her  a  30-day  suspended  sentence. 


*Arkansas  Stat.  Ann.  §  41-1812  (1977)  provides  in  full  as  follows: 

"Indecent  exposure.  (1)  A  person  commits  indecent  exposure  if,  with  pur- 
pose to  arouse  or  gratify  the  sexual  desire  of  himself  or  of  any  other  person, 
he  exposes  his  sex  organs: 

"(a)  in  a  public  place  or  public  view;  or 

"(b)  under  circumstances  in  which  he  knows  his  conduct  is  likely  to  cause 
affront  or  alarm. 

"(2)  Indecent  exposure  is  a  class  A  misdemeanor." 


ORDERS  1071 

1070  WHITE,  J.,  dissenting 

The  Pulaski  County  Circuit  Court  conducted  a  trial  de  novo  on 
appeal.  The  court  held  that  mere  nude  dancing  violated  the  stat- 
ute, and  rejected  petitioner's  First  Amendment  defense  on  the 
grounds  that  her  nude  dancing  had  no  articulated  message.  Pet. 
for  Cert.  13—14.  The  court  affirmed  petitioner's  conviction,  and 
imposed  a  1-year  suspended  sentence  on  the  condition  that  she  not 
"display  herself  in  a  public  place  .  .  .  ."  App.  to  Pet.  for  Cert. 
8-a. 

The  Arkansas  Supreme  Court  affirmed,  both  on  the  ground  that 
petitioner's  conduct  violated  the  statute  and  because  such  behav- 
ior was  not  protected  by  the  First  Amendment.  286  Ark.  413, 
692  S.  W.  2d  752  (1985).  With  respect  to  the  statutory  argument, 
the  court  noted  that  §41-1812  was  intended  to  cover  both  nude 
dancing  and  "'flashers.'"  Id.,  at  415,  692  S.  W.  2d,  at  753. 
Turning  to  petitioner's  constitutional  argument,  the  court  "d[id] 
not  take  issue"  with  petitioner's  contention  that  "  'mere  nude  danc- 
ing' "  is  entitled  to  First  Amendment  protection,  but  found  under 
the  facts  of  this  case  that  petitioner's  conduct  "was  not  simply  nu- 
dity .  .  .  ."  Id.,  at  417,  692  S.  W.  2d,  at  754.  Instead,  "while 
dancing  [petitioner]  ran  her  hand  over  her  breast,  down  over  her 
stomach  and  rubbed  herself  on  the  inner  thigh  below  the  vaginal 
area."  Ibid.  Because  petitioner  did  not  argue  that  such  conduct 
is  constitutionally  protected,  the  court  did  not  address  the  remain- 
ing aspects  of  her  constitutional  argument.  Ibid. 

Petitioner  maintains  that,  as  applied  to  mere  nude  dancing, 
§41-1812  is  overbroad  and  substantially  abridges  First  Amend- 
ment rights.  Regardless  of  whether  and  how  petitioner  might 
have  touched  herself  during  her  performance,  she  has  standing  to 
raise  this  overbreadth  challenge.  See  Secretary  of  State  of  Mary- 
land v.  Joseph  H.  Munson  Co.,  467  U.  S.  947,  958-959  (1984); 
Schaumburg  v.  Citizens  for  a  Better  Environment,  444  U.  S.  620, 
633-635  (1980);  Broadrick  v.  Oklahoma,  413  U.  S.  601,  611-612 
(1973). 

In  New  York  State  Liquor  Authority  v.  Bellanca,  452  U.  S.  714 
(1981)  and  California  v.  LaRue,  409  U.  S.  109  (1972),  the  Court 
held  that  States  may  regulate  nude  dancing  in  establishments 
licensed  to  serve  liquor  by  virtue  of  the  power  conferred  under 
the  Twenty-first  Amendment.  In  both  cases,  however,  the  Court 
intimated  that  statutes  which  seek  to  regulate  nude  dancing  in 
public  places  other  than  bars  and  taverns  might  contravene  the 
dictates  of  the  First  Amendment,  as  this  form  of  entertainment 


1072  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

might  be  entitled  to  constitutional  protection.  New  York  State 
Liquor  Authority  v.  Bellanca,  supra,  at  718;  California  v.  LaRue, 
supra,  at  118.  Indeed,  in  Schad  v.  Mount  Ephraim,  452  U.  S. 
61,  66  (1981),  the  Court  expressly  stated  that  "nude  dancing  is  not 
without  its  First  Amendment  protections  from  official  regulation." 
See  also  Doran  v.  Salem  Inn,  Inc.,  422  U.  S.  922,  933-934  (1975); 
Southeastern  Promotions,  Ltd.  v.  Conrad,  420  U.  S.  546,  557-558 
(1975). 

Given  these  repeated  indications  that  barroom-type  nude  danc- 
ing is  a  type  of  expression  that  is  protected  under  the  First 
Amendment  under  some  circumstances,  the  Court  should  grant 
the  petition  for  certiorari  in  this  case  in  order  to  explore  the 
propriety  of  Arkansas'  regulation.  Section  41-1812  does  not  pro- 
hibit nudity  only  in  establishments  possessing  liquor  licenses.  In- 
stead, it  criminalizes  nonobscene  nudity  in  any  public  place  so  long 
as  its  purpose  is  to  gratify  the  sexual  desires  of  another  person. 
Arkansas  thus  cannot  rely  on  the  Twenty-first  Amendment  as  a 
sufficient  basis  to  justify  its  statute,  and  instead,  must  demon- 
strate a  compelling  state  interest  sufficient  to  prohibit  the  exercise 
of  a  protected  form  of  expression.  See  Doran  v.  Salem  Inn,  Inc., 
supra,  at  933-934;  United  States  v.  O'Brien,  391  U.  S.  367,  377 
(1968). 

In  his  dissent  in  New  York  State  Liquor  Authority  v.  Bellanca, 
supra,  JUSTICE  STEVENS  noted  that  "[although  the  Court  has 
written  several  opinions  implying  that  nude  or  partially  nude 
dancing  is  a  form  of  expressive  activity  protected  by  the  First 
Amendment,  the  Court  has  never  directly  confronted  the  ques- 
tion." Id.,  at  718-719.  I  believe  it  is  time  to  do  so.  The  state 
courts  are  in  disagreement  over  the  reach  of  the  First  Amend- 
ment in  this  area.  See  generally  Barbre,  Topless  or  Bottomless 
Dancing  or  Similar  Conduct  as  Offense,  49  A.L.R.  3d  1084,  §§3,  5 
(1973  and  Supp.  1985)  (collecting  cases).  In  addition,  this  case 
does  not  present  the  complications  of  local  police  power  over  zon- 
ing, as  found  in  Schad  v.  Mount  Ephraim,  supra,  or  the  question 
of  States'  rights  under  the  Twenty-first  Amendment  present  in 
California  v.  LaRue,  supra,  Doran  v.  Salem  Inn,  Inc.,  supra, 
and  New  York  State  Liquor  Authority  v.  Bellanca,  supra. 
For  these  reasons,  I  would  grant  the  petition  for  certiorari. 

No.  85-555.     BANKERS  TRUST  Co.  v.  METGE,  EXECUTRIX  OF 
THE  ESTATE  OF  METGE,  ET  AL.     C.  A.  8th  Cir.     Motion  of  Amer- 


ORDERS  1073 

474  U.  S.  January  13,  1986 

lean  Bankers  Association  for  leave  to  file  a  brief  as  amicus  curiae 
granted.  Certiorari  denied.  Reported  below:  762  F.  2d  621. 

No.  85-702.  MADRID  ET  AL.  v.  MONTELONGO  ET  AL.  C.  A. 
5th  Cir.  Motion  of  respondents  for  leave  to  proceed  in  forma 
pauperis  granted.  Certiorari  denied.  JUSTICE  WHITE  and  JUS- 
TICE O'CONNOR  would  grant  certiorari.  Reported  below:  765  F. 
2d  1353. 

No.  85-816.  CONNECTICUT  v.  SUTTON.  Sup.  Ct.  Conn.  Mo- 
tion of  respondent  for  leave  to  proceed  in  forma  pauperis  granted. 
Certiorari  denied.  Reported  below:  197  Conn.  485,  498  A.  2d  65. 

No.  85-894.  McCoTTER,  DIRECTOR,  TEXAS  DEPARTMENT  OF 
CORRECTIONS  v.  LYONS.  C.  A.  5th  Cir.  Motion  of  respondent 
for  leave  to  proceed  in  forma  pauperis  granted.  Certiorari  de- 
nied. Reported  below:  770  F.  2d  529. 

No.  85-881.     AUSTIN  v.  TENNESSEE.     Ct.  Crim.  App.  Tenn.; 

No.  85-5058.     PENRY  v.  TEXAS.     Ct.  Crim.  App.  Tex.; 

No.  85-5126.      HATCH  v.  OKLAHOMA.     Ct.  Crim.  App.  Okla.; 

No.  85-5705.     HOOPER  u  ARIZONA.     Sup.  Ct.  Ariz.; 

No.  85-5844.     SMITH  v.  MONTANA.     Sup.  Ct.  Mont.; 

No.  85-5846.  CARTWRIGHT  v.  OKLAHOMA.  Ct.  Crim.  App. 
Okla.; 

No.  85-5867.     MARTIN  v.  OHIO.     Sup.  Ct.  Ohio;  and 

No.  85-5880.  JONES  v.  SMITH,  COMMISSIONER,  ALABAMA  DE- 
PARTMENT OF  CORRECTIONS.  C.  A.  llth  Cir.  Certiorari  de- 
nied. Reported  below:  No.  85-5058,  691  S.  W.  2d  636;  No.  85- 
5126,  701  P.  2d  1039;  No.  85-5705,  145  Ariz.  538,  703  P.  2d  482; 

No.  85-5844,  Mont.  and ,  705  P.  2d  1087  and  1110; 

No.  85-5846,  708  P.  2d  592;  No.  85-5867,  19  Ohio  St.  3d  122,  483 
N.  E.  2d  1157;  No.  85-5880,  772  F.  2d  668. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentences  in  these  cases. 

No.  85-5815.  ADAMS  v.  WAINWRIGHT,  SECRETARY,  FLORIDA 
DEPARTMENT  OF  CORRECTIONS,  ET  AL.  C.  A.  llth  Cir.  Certio- 
rari denied.  Reported  below:  764  F.  2d  1356. 


1074  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

JUSTICE  BRENNAN,  dissenting. 

Adhering  to  my  view  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227  (1976),  I  would  grant  certiorari  and  vacate  the  death  sentence 
in  this  case. 

JUSTICE  MARSHALL,  dissenting. 

Because  the  Court's  refusal  to  grant  certiorari  in  this  case 
allows  the  State  of  Florida  to  proceed  with  the  execution  of  a 
defendant  whose  conviction  may  well  rest  upon  a  ground  that  the 
Florida  Supreme  Court  has  held  invalid,  I  must  dissent  from  the 
denial  here. 

Since  Stromberg  v.  California,  283  U.  S.  359  (1931),  this  Court 
has  recognized  that  "a  general  verdict  must  be  set  aside  if  the  jury 
was  instructed  that  it  could  rely  on  any  of  two  or  more  independ- 
ent grounds,  and  one  of  those  grounds  is  insufficient,  because  the 
verdict  may  have  rested  exclusively  on  the  insufficient  ground." 
Zant  v.  Stephens,  462  U.  S.  862,  881  (1983).      See  Chiarella  v. 
United  States,  445  U.  S.  222,  237,  n.  21  (1980);  Leary  v.   United 
States,  395  U.  S.  6,  31-32  (1969).      Although  in  Stromberg,  the 
Court  was  concerned  that  the  jury  might  have  held  the  defendant 
criminally  liable  for  conduct  protected  by  the  First  Amendment, 
the  rationale  of  that  decision  should  not  be  limited  to  cases  in 
which  a  general  verdict  may  be  based  upon  a  ground  repugnant  to 
the  Federal  Constitution.     Where  a  jury  has  been  instructed  that 
it  may  convict  a  defendant  upon  an  invalid  ground,  the  reason  for 
that  invalidity  is  not  important.     See  Chiarella  v.   United  States, 
supra,  at  237,  n.  21  ("We  may  not  uphold  a  criminal  conviction  if  it 
is  impossible  to  ascertain  whether  the  defendant  has  been  pun- 
ished for  noneriminal  conduct").     What  offends  the  Due  Process 
Clause  is  the  possibility  that  the  jury  may  have  condemned  the  de- 
fendant for  reasons  that  as  a  matter  of  law— be  it  statutory  or  con- 
stitutional—cannot support  the  verdict.     The  existence  of  such  a 
possibility  is  all  too  real  in  this  case  and  demands  that  petitioner's 
conviction  be  set  aside. 

Petitioner  was  arrested  and  charged  with  the  murder  of  an  8- 
year-old  girl.  In  statements  to  the  police,  he  admitted  removing 
the  victim's  clothes,  using  rope  to  tie  her  hands,  and  placing  plas- 
tic bags  over  her  body.  He  said  he  thought  he  had  tried  to  have 

sexual  relations  with  the  victim  but  either  could  not  do  it  or  could 


ORDERS  1075 

1073  MARSHALL,  J.,  dissenting 

not  bring  himself  to  do  it.  764  F.  2d  1356,  1358  (CA11  1985). 
The  indictment  brought  against  petitioner  alleged  that  he  had 
"murdered  the  victim,  unlawfully,  from  a  premeditated  design  by 
strangling."  Adams  v.  State,  412  So.  2d  850,  852  (Fla.  1982). 
The  circumstances  of  the  crime  might  easily  have  led  jurors  to  be- 
lieve that  even  if  petitioner  had  not  premeditated  the  homicide,  he 
nevertheless  had  killed  the  girl  in  the  course  of  an  attempted  rape. 
Under  state  law,  such  a  felony-murder  theory  was  not  foreclosed 
by  the  indictment,  ibid.,  and  it  does  not  appear  that  the  prosecu- 
tion ever  indicated  its  intention  to  rely  solely  upon  a  theory  of 
premeditated  murder. 

The  trial  court's  instruction  made  clear  the  availability  of  either 
felony  murder  or  premeditated  murder  as  a  basis  for  a  first- 
degree  murder  conviction.  At  the  close  of  trial,  the  court  in- 
structed the  jury  that  it  would  not  have  to  find  that  petitioner  had 
a  "premeditated  design  to  kill"  in  order  to  convict  him  of  first- 
degree  murder.  The  court  explained: 

"The  killing  of  a  human  being  in  committing,  or  in  attempt- 
ing to  commit  any  arson,  rape,  robbery,  burglary,  abominable 
and  detestable  crime  against  nature  or  kidnapping  is  murder 
in  the  first  degree,  even  though  there  is  no  premeditated 
design  or  intent  to  kill. 

"If  a  person  kills  another  while  he  is  trying  to  do  or  commit 
any  arson,  rape,  robbery,  burglary,  abominable  and  detest- 
able crime  against  nature  or  kidnapping,  or  while  escaping 
from  the  immediate  scene  of  such  crime  the  killing  is  in  the 
perpetration  of  or  in  the  attempt  to  perpetrate  such  arson, 
rape,  robbery,  burglary,  abominable  and  detestable  crime 
against  nature  or  kidnapping  and  is  murder  in  the  first  de- 
gree." Ibid. 

The  jury  proceeded  to  convict  petitioner  of  first-degree  murder. 
Long  before  petitioner's  trial,  however,  the  Florida  Supreme 
Court  had  held  the  statutory  term  "crime  against  nature"  too 
vague  to  sustain  a  conviction.  Franklin  v.  State,  257  So.  2d  21 
(Fla.  1971).  Indeed,  in  affirming  petitioner's  conviction,  the  Flor- 
ida Supreme  Court  admitted  that  the  instruction  here  "included 
references  to  two  crimes  which  do  not  exist,  to  wit:  rape  and  an 
abominable  and  detestable  crime  against  nature."  412  So.  2d,  at 
852.  Were  it  possible,  therefore,  that  in  reaching  their  general 
verdict  the  jury  relied  on  a  felony-murder  theory  based  upon  the 


1076  OCTOBER  TERM,  1985 

January  13,  1986  474  U.  S. 

sexual  aspects  of  the  killing,  the  conviction  unquestionably  would 
have  to  be  overturned  under  Stromberg. 

Finding  no  such  possibility,  the  Court  of  Appeals  affirmed  the 
District  Court's  refusal  to  grant  petitioner's  habeas  petition.  The 
Court  of  Appeals  concluded: 

"The  trial  court's  reference  to  the  capital  felony  of  killing 
during  the  commisssion  of  or  an  attempt  to  commit  rape,  a 
crime  against  nature,  or  kidnapping  as  murder  in  the  first 
degree  appears  early  in  the  instructions  as  part  of  what  were, 
in  essence,  statutory  definitions.  The  actual  and  controlling 
charge  came  later  in  the  instructions,  when  the  trial  court 
told  the  jurors  that,  if  the  elements  of  homicide  were  found, 
their  next  task  would  be  to  determine  its  degree.  At  this 
point,  premeditated  murder  was  the  only  killing  stated  to  con- 
stitute murder  in  the  first  degree.  Therefore,  the  jurors 
were  actually  instructed  to  consider  only  premeditated  mur- 
der as  murder  in  the  first  degree."  764  F.  2d,  at  1362-1363. 

I  cannot  accept  the  Court  of  Appeals'  distinction  between  the 
"statutory"  section  of  the  trial  court's  instructions  and  the  later, 
"controlling"  part.  Although  the  trial  court's  focus  on  premedi- 
tated murder  came  in  the  context  of  its  "summary"  of  the  entire 
charge,  the  jury  can  hardly  be  presumed  to  have  forgotten  the 
lengthy  explanation  of  first-degree  murder  that  had  come  before. 
The  sexual  overtones  of  the  crime  make  it  impossible  to  eliminate 
the  possibility  that  the  jury  seized  upon  the  references  to  rape  and 
"crime  against  nature"  and  made  them  dispositive  here.  So  long 
as  such  a  possibility  exists,  Stromberg  requires  that  petitioner's 
conviction  be  set  aside. 

This  Court's  refusal  to  grant  certiorari  in  Dobbert  v.  Wain- 
wright,  468  U.  S.  1231  (1984),  a  case  raising  a  Stromberg  claim 
very  similar  to  the  one  here,  might  have  been  attributed  to  the 
majority's  belief  that  the  constitutional  claim  there  had  not  been 
properly  preserved.  Id.,  at  1244-1246  (MARSHALL,  J.,  dissenting 
from  denial  of  stay  of  execution  and  of  certiorari).  No  such  pro- 
cedural bar  exists  here,  and  the  Court's  refusal  to  consider  peti- 
tioner's claims  is  even  less  excusable.  I  dissent. 

No.  85-5843.  ROVETUSO  ET  AL.  v.  UNITED  STATES.  C.  A. 
7th  Cir.  Certiorari  denied.  JUSTICE  WHITE  would  grant  certio- 
rari. Reported  below:  768  F.  2d  809. 


ORDERS  1077 

474  U.  S.  January  13,  1986 

Rehearing  Denied 

No.  84-6717.     HOLSEY  v.  MARYLAND,  ante,  p.  1004; 

No.  85-56.  CONNOR  v.  UNITED  STATES  DEPARTMENT  OF 
LABOR,  BUREAU  OF  LABOR  STATISTICS,  ante,  p.  998; 

No.  85-130.  CALIFORNIA  STATE  BOARD  OF  EQUALIZATION  ET 
AL.  v.  CHEMEHUEVI  INDIAN  TRIBE,  ante,  p.  9; 

No.  85-191.  ZERMAN  ET  AL.  v.  AVANT  GARDE  CONDOMINIUM 
ASSN.,  INC.,  ET  AL.;  and  ZERMAN  v.  WHITE,  CLERK  OF  THE 
FLORIDA  SUPREME  COURT,  ET  AL.,  ante,  p.  895; 

No.  85-222.  BAKER,  INDIVIDUALLY  AND  DBA  BAKER  COAL 
Co.  v.  UNITED  STATES,  ante,  p.  945; 

No.  85-263.  MAGGETTE  v.  COOK  COUNTY  POLICE  AND  COR- 
RECTIONS MERIT  BOARD  ET  AL.,  ante,  p.  945; 

No.  85-269.     NABORS  v.  UNITED  STATES,  ante,  p.  851; 

No.  85-287.  COURT  HOUSE  PLAZA  Co.  v.  CITY  OF  PALO  ALTO 
ET  AL.  ,  ante,  p.  945; 

No.  85-318.     EL  SHAHAWY  v.  ELLIOTT,  ante,  p.  980; 

No.  85-374.  BENSON  v.  DEPARTMENT  OF  HEALTH  AND 
HUMAN  SERVICES,  ante,  p.  946; 

No.  85-378.  ROBERTS  ET  AL.  v.  SIMPSON,  EXECUTRIX  OF  THE 
ESTATE  OF  BEEL,  ET  AL.,  ante,  p.  946; 

No.  85-439.  CALIFORNIA  EX  REL.  COOPER,  CITY  ATTORNEY 
OF  SANTA  ANA,  CALIFORNIA  v.  MITCHELL  BROTHERS'  SANTA 
ANA  THEATER  ET  AL.,  ante,  p.  948; 

No.  85-582.  SPARROW  v.  DEVINE,  DIRECTOR,  U.  S.  OFFICE 
OF  PERSONNEL  MANAGEMENT,  ET  AL.,  ante,  p.  949; 

No.  85-5107.     BURTON  v.  REED  ET  AL.,  ante,  p.  949; 

No.  85-5351.     DANO  v.  SZOMBATHY,  ante,  p.  950; 

No.  85-5361.  COLEMAN  ET  AL.  v.  DELAWARE  ET  AL.,  ante, 
p.  950; 

No.  85-5376.  HOLLIDAY  u  HAUPTMAN,  TRUSTEE  IN  BANK- 
RUPTCY, ante,  p.  950; 

No.  85-5378.     BISHOP  v.  DAVIS,  ante,  p.  950; 

No.  85-5471.     HOWELL  v.  MARYLAND,  ante,  p.  996; 

No.  85-5495.     McGLORY  v.  YOKA,  ante,  p.  997; 

No.  85-5504.     IN  RE  SCHMID,  ante,  p.  993; 

No.  85-5508.  HADDIX  v.  OHIO  LIQUOR  CONTROL  COMMISSION, 
ante,  p.  997; 

No.  85-5510.     BURTON  u  WILSON  ET  AL.,  ante,  p.  997;  and 

No.  85-5511.  BURTON  v.  SMITH,  ante,  p.  997.  Petitions  for 
rehearing  denied. 


1078  OCTOBER  TERM,  1985 

January  13,  18,  21,  1986  474  U.  S. 

No.  84-6742.  BAILEY  ET  AL.  v.  BUCKEYE  CELLULOSE  CORP., 
ante,  p.  863.  Petition  for  rehearing  denied.  JUSTICE  POWELL 
took  no  part  in  the  consideration  or  decision  of  this  petition. 

No.  85-17.  VERNON  v.  MAGGIO,  WARDEN,  ante,  p.  945.  Mo- 
tion of  petitioner  for  leave  to  proceed  further  herein  in  forma 
pauperis  granted.  Petition  for  rehearing  denied. 

No.  85-5041.  CHANDLER  v.  LORD,  ante,  p.  853.  Motion  for 
leave  to  file  petition  for  rehearing  denied. 

No.  85-5316.  WILSON  v.  UNITED  STATES  ET  AL.,  ante,  p.  921. 
Motion  of  petitioner  for  leave  to  file  petition  for  rehearing  out  of 
time  denied. 

JANUARY  18,  1986 

Dismissal  Under  Rule  53 

No.  85-173.  KEY  INTERNATIONAL  MANUFACTURING,  INC.  v. 
MORSE/DIESEL,  INC.,  ET  AL.  C.  A.  2d  Cir.  Certiorari  dis- 
missed under  this  Court's  Rule  53.  Reported  below:  762  F.  2d 
990. 

JANUARY  21,  1986 

Affirmed  on  Appeal 

No.  85-714.  TEXAS  ET  AL.  u  UNITED  STATES.  Affirmed  on 
appeal  from  D.  C.  W.  D.  Tex. 

Certiorari  Granted— Vacated  and  Remanded 

No.  84-1706.  PACYNA  v.  MARSH,  SECRETARY  OF  THE  ARMY. 
C.  A.  2d  Cir.  Certiorari  granted,  judgment  vacated,  and  case 
remanded  to  the  Court  of  Appeals  to  transfer  the  case  pursuant  to 
28  U.  S.  C.  §  1631  to  the  United  States  Court  of  Appeals  for  the 
Federal  Circuit.  See  28  U.  S.  C.  §  1295(a)(2).  Reported  below: 
751  F.  2d  374. 

No.  84-1750.  BALLAM  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  granted,  judgment  vacated,  and  case  remanded  to  the 
Court  of  Appeals  to  transfer  the  case  pursuant  to  28  U.  S.  C. 
§  1631  to  the  United  States  Court  of  Appeals  for  the  Federal  Cir- 
cuit. See  28  U.  S.  C.  §  1295(a)(2).  Reported  below:  747  F.  2d 
915. 


ORDERS  1079 

474  U.  S.  January  21,  1986 

Miscellaneous  Orders 

No.    A-483.       SCHUCHMAN  ET  UX.    V.    UNITED   STATES.       D.   C. 

S.  D.  111.     Application  for  stay,  addressed  to  JUSTICE  BRENNAN 
and  referred  to  the  Court,  denied. 

No.  D-522.  IN  RE  DISBARMENT  OF  KAMINSKY.  Disbarment 
entered.  [For  earlier  order  herein,  see  ante,  p.  896.] 

No.  D-532.  IN  RE  DISBARMENT  OF  HEFNER.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  ante,  p.  992.] 

No.  D-536.  IN  RE  DISBARMENT  OF  LOVETT.  It  is  ordered 
that  Lee  Gilson  Lovett,  of  Washington,  D.  C.,  be  suspended  from 
the  practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-542.  IN  RE  DISBARMENT  OF  BOWLES.  It  is  ordered 
that  Robert  William  Bowles,  Jr.,  of  Orlando,  Fla.,  be  suspended 
from  the  practice  of  law  in  this  Court  and  that  a  rule  issue,  return- 
able within  40  days,  requiring  him  to  show  cause  why  he  should 
not  be  disbarred  from  the  practice  of  law  in  this  Court. 

No.  D-543.  IN  RE  DISBARMENT  OF  DEGLOW.  It  is  ordered 
that  Riner  Ernest  Deglow,  of  Spokane,  Wash. ,  be  suspended  from 
the  practice  of  law  in  this  Court  and  that  a  rule  issue,  returnable 
within  40  days,  requiring  him  to  show  cause  why  he  should  not  be 
disbarred  from  the  practice  of  law  in  this  Court. 

No.  84-902.  WARDAIB  CANADA  INC.  v.  FLORIDA  DEPART- 
MENT OF  REVENUE.  Sup.  Ct.  Fla.  [Probable  jurisdiction  noted, 
ante,  p.  943.]  Motion  of  the  Solicitor  General  for  leave  to  partici- 
pate in  oral  argument  as  amicus  curiae  and  for  divided  argument 
granted.  Motion  of  Aer  Lingus  et  al.  for  leave  to  participate  in 
oral  argument  as  amid  curiae,  for  divided  argument,  and  for  ad- 
ditional time  for  oral  argument  denied. 

No.  84-1903.  POSADAS  DE  PUERTO  Rico  ASSOCIATES,  DBA 
CONDADO  HOLIDAY  INN  v.  TOURISM  COMPANY  OF  PUERTO  Rico 
ET  AL.  Sup.  Ct.  P.  R.  [Probable  jurisdiction  postponed,  ante, 
p.  917.]  Motion  of  Association  of  National  Advertisers,  Inc.,  for 
leave  to  file  a  brief  as  amicus  curiae  granted. 

No.  84-2030.  BROWN-FORMAN  DISTILLERS  CORP.  v.  NEW 
YORK  STATE  LIQUOR  AUTHORITY.  Ct.  App.  N.  Y.  [Probable 


1080  OCTOBER  TERM,  1985 

January  21,  1986  474  U.  S. 

jurisdiction  noted,  ante,  p.  814.]  Motion  of  Wine  &  Spirits 
Wholesalers  of  America,  Inc.,  for  leave  to  file  a  brief  as  amicus 
curiae  granted.  JUSTICE  BRENNAN  took  no  part  in  the  consider- 
ation or  decision  of  this  motion. 

No.  85-21.  SQUARE  D  Co.  ET  AL.  v.  NIAGARA  FRONTIER  TAR- 
IFF BUREAU,  INC.,  ET  AL.  C.  A.  2d  Cir.  [Certiorari  granted, 
ante,  p.  815.]  Motions  of  Association  of  American  Railroads, 
American  Information  Technologies  Corp.  et  al.,  and  National 
Motor  Freight  Traffic  Association,  Inc.,  et  al.  for  leave  to  file 
briefs  as  amid  curiae  granted. 

No.  85-93.  BAZEMORE  ET  AL.  v.  FRIDAY  ET  AL.  C.  A.  4th 
Cir.  [Certiorari  granted,  ante,  p.  978.]  Motion  of  National  Com- 
mittee on  Pay  Equity  et  al.  for  leave  to  file  a  brief  as  amid  curiae 
granted. 

No.  85-195.  ICICLE  SEAFOODS,  INC.  u  WORTHINGTON  ET  AL. 
C.  A.  9th  Cir.  [Certiorari  granted,  ante,  p.  900.]  Motion  of 
Maryland  Casualty  Co.  for  leave  to  file  a  brief  as  amicus  curiae 
granted. 

No.  85-390.  CITY  OF  Los  ANGELES  ET  AL.  v.  PREFERRED 
COMMUNICATIONS,  INC.  C.  A.  9th  Cir.  [Certiorari  granted, 
ante,  p.  979.]  Motions  for  leave  to  file  briefs  as  amid  curiae  filed 
by  the  following  are  granted:  UNDA— USA,  National  Catholic  As- 
sociation for  Broadcasters  &  Allied  Communicators;  Office  of  Com- 
munication of  United  Church  of  Christ  et  al. ;  National  Association 
of  Broadcasters;  Mountain  States  Telephone  &  Telegraph  Co.  et 
al.;  Wisconsin  Bell,  Inc.;  and  National  Federation  of  Cable  Pro- 
grammers et  al. 

No.  85-1085.  AFRO- AMERICAN  POLICE  ASSN.  ,  INC.  ,  ET  AL.  v. 
UNITED  STATES.  C.  A.  2d  Cir.  Motion  of  petitioners  to  expe- 
dite consideration  of  this  case  denied. 

No.  85-5404.  ALLEN  v.  ILLINOIS.  Sup.  Ct.  111.  [Certiorari 
granted,  ante,  p.  979.]  Motion  of  Mental  Health  Information 
Service,  Second  Judicial  Department,  for  leave  to  file  a  brief  as 
amicus  curiae  granted. 

Certiorari  Granted 

No.  85-495.  ANSONIA  BOARD  OF  EDUCATION  ET  AL.  v.  PHIL- 
BROOK  ET  AL.  C.  A.  2d  Cir.  Certiorari  granted.  Reported 
below:  757  F.  2d  476. 


ORDERS  1081 

474  U.  S.  January  21,  1986 

No.  85-5915.  WRIGHT  ET  AL.  v.  CITY  OF  ROANOKE  REDEVEL- 
OPMENT AND  HOUSING  AUTHORITY.  C.  A.  4th  Cir.  Motion  of 
petitioners  for  leave  to  proceed  in  forma  pauperis  and  certiorari 
granted.  Reported  below:  771  F.  2d  833. 

Certiorari  Denied 

No,  85-513.  KENDALL  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  766  F.  2d  1426. 

No.  85-526.     LOVE  ET  AL.  v.  UNITED  STATES;  and 
No.  85-576.     LEE  v.  UNITED  STATES.     C.  A.  4th  Cir.     Certio- 
rari denied.     Reported  below:  767  F.  2d  1052. 

No.  85-549.  CALIFORNIA  v.  CALLAHAN.  Ct.  App.  Cal.,  4th 
App.  Dist.  Certiorari  denied.  Reported  below:  168  Cal.  App.  3d 
631,  214  Cal.  Rptr.  294. 

No.  85-573.  PUBLIC  SERVICE  COMPANY  OF  COLORADO  v.  FED- 
ERAL ENERGY  REGULATORY  COMMISSION  ET  AL.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  754  F.  2d  1555. 

No.  85-598.  GRUMMAN  OHIO  CORP.  ET  AL.  v.  CITY  OF  NEW 
YORK  ET  AL.  App.  Div.,  Sup.  Ct.  N.  Y.,  1st  Jud.  Dept.  Cer- 
tiorari denied.  Reported  below:  108  App.  Div.  2d  1105,  487 
N.  Y.  S.  2d  242. 

No.  85-614.  TAYLOR  v.  LOCAL  980,  UNITED  AUTOMOBILE, 
AEROSPACE  &  AGRICULTURE  IMPLEMENT  WORKERS  OF  AMER- 
ICA. C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  761  F. 
2d  931. 

No.  85-625.  NORTHERN  CALIFORNIA  RETAIL  CLERKS  UNION 
&  FOOD  EMPLOYERS  JOINT  PENSION  TRUST  FUND  v.  AWARD 
SERVICE,  INC.  C.  A.  9th  Cir.  Certiorari  denied.  Reported 
below:  763  F.  2d  1066. 

No.  85-654.  HURVITZ  v.  DIVISION  OF  MEDICAL  QUALITY, 
BOARD  OF  MEDICAL  QUALITY  ASSURANCE,  DEPARTMENT  OF 
CONSUMER  AFFAIRS  OF  CALIFORNIA.  Ct.  App.  Cal.,  2d  App. 
Dist.  Certiorari  denied. 

No.  85-666.  ALLBRITTON  COMMUNICATIONS  Co.  ET  AL.  v.  NA- 
TIONAL LABOR  RELATIONS  BOARD  ET  AL.  C.  A.  3d  Cir.  Certio- 
rari denied.  Reported  below:  766  F.  2d  812. 

No.  85-668.  WHEELER  ET  AL.  v.  UNITED  STATES.  C.  A. 
Fed.  Cir.  Certiorari  denied.  Reported  below:  768  F.  2d  1333. 


1082  OCTOBER  TERM,  1985 

January  21,  1986  474  U.  S. 

No.  85-674.  KENTON  MEADOWS  Co.,  INC.,  ET  AL.  v.  COMMIS- 
SIONER OF  INTERNAL,  REVENUE.  C.  A.  4th  Cir.  Certiorari  de- 
nied. Reported  below:  766  F.  2d  142. 

No.  85-685.     ESCHLER  ET  AL.  v.  BOEING  Co.;  and 

No.    85-703.       SCHOENBORN   ET  AL.    V.    BOEING   CO.        C.  A.    3d 

Cir.     Certiorari  denied.     Reported  below:  769  F.  2d  115. 

No.  85-691.  RAMSEY  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  603. 

No.  85-706.  LOMBARD'S  INC.  v.  PRINCE  MANUFACTURING, 
INC.  C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  753 
F.  2d  974. 

No.  85-716.  VEAL  v.  DEROBERTIS,  WARDEN.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  767  F.  2d  926. 

No.  85-718.  AMERICAN  METHYL  CORP.  v.  MOTOR  VEHICLE 
MANUFACTURERS  ASSOCIATION  OF  THE  UNITED  STATES,  INC., 
ET  AL.  C.  A.  D.  C.  Cir.  Certiorari  denied.  Reported  below: 
247  U.  S.  App.  D.  C.  268,  768  F.  2d  385. 

No.  85-724.  MANDANICI  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  158. 

No.  85-734.  BRESSLER  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  287. 

No.  85-748.  KELLER  v.  UNITED  STATES.  C.  A.  Fed.  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  182. 

No.  85-761.  BORYS  v.  UNITED  STATES.  C.  A.  7th  Cir.  Cer- 
tiorari denied.  Reported  below:  766  F.  2d  304. 

No.  85-802.  JOHN  HOLMAN  &  SONS,  LTD.,  ET  AL.  v.  SUPE- 
RIOR COURT  OF  CALIFORNIA,  COUNTY  OF  SAN  DIEGO  (CORREIA 
ET  AL.,  REAL  PARTIES  IN  INTEREST).  Ct.  App.  Cal.,  4th  App. 
Dist.  Certiorari  denied. 

No.  85-824.  NATIONAL  RIFLE  ASSOCIATION  OF  AMERICA 
ET  AL.  v.  MINNESOTA  STATE  ETHICAL  PRACTICES  BOARD.  C.  A. 
8th  Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  509. 

No.  85-856.  FIDELITY  &  CASUALTY  COMPANY  OF  NEW  YORK 
u  PHILADELPHIA  RESINS  CORP.  C.  A.  10th  Cir.  Certiorari 
denied.  Reported  below:  766  F.  2d  440. 


ORDERS  1083 

474  U.  S.  January  21,  1986 

No.  85-870.  METROPOLITAN  COUNTY  BOARD  OF  EDUCATION 
OF  NASHVILLE  AND  DAVIDSON  COUNTY,  TENNESSEE,  ET  AL.  v. 
KELLEY  ET  AL.  C.  A.  6th  Cir.  Certiorari  denied.  Reported 
below:  773  F.  2d  677. 

No.  85-872.    SCHOR  ET  AL.  V.  CONTlCOMMODITY  SERVICES, 

INC.,   ET  AL.      C.  A.   D.  C.   Cir.      Certiorari  denied.      Reported 
below:  248  U.  S.  App.  D.  C.  155,  770  F.  2d  211. 

No.  85-887.  BASIN  ELECTRIC  POWER  COOPERATIVE  v.  MID- 
WEST PROCESSING  Co.  C.  A.  8th  Cir.  Certiorari  denied.  Re- 
ported below:  769  F.  2d  483. 

No.  85-892.  OHLE  ET  AL.  v.  PENNSYLVANIA.  Super.  Ct.  Pa. 
Certiorari  denied.  Reported  below:  343  Pa.  Super.  611,  494  A. 
2d  480. 

No.  85-901.  SHEFFER  ET  AL.  v.  MALLONN,  AUDITOR,  CITY  OF 
CANTON,  OHIO,  ET  AL.  Ct.  App.  Ohio,  Stark  County.  Certio- 
rari denied. 

No.  85-910.  WHITEHEAD  v.  SOUTHERN  RAILWAY  Co.  Ct. 
App.  Ky.  Certiorari  denied. 

No.  85-919.  GILLESPIE  v.  WISCONSIN  ET  AL.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  771  F.  2d  1035. 

No.  85-921.  CARL  E.  WIDELL  &  SONS  v.  ELLISON  ET  AL. 
C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  772  F.  2d  894. 

No.  85-5127.  LAWRENCE  v.  CUNNINGHAM,  WARDEN.  C.  A. 
3d  Cir.  Certiorari  denied. 

No.  85-5147.  HAYNES  v.  VERDEYEN  ET  AL.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  647. 

No.  85-5163.  CARR  v.  HOLLAND,  WARDEN.  Sup.  Ct.  App. 
W.  Va.  Certiorari  denied. 

No.  85-5264.  THORNTON  v.  HOLLAND,  WARDEN.  Sup.  Ct. 
App.  W.  Va.  Certiorari  denied. 

No.  85-5437.  MORA  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  1197. 

No.  85-5535.  WRIGHT  v.  BOURBEAU  ET  AL.  App.  Ct.  Conn. 
Certiorari  denied.  Reported  below:  3  Conn.  App.  512,  490  A.  2d 
522. 


1084  OCTOBER  TERM,  1985 

January  21,  1986  474  U.  S. 

No.  85-5600.  BROWN  v.  WAINWRIGHT,  SECRETARY,  FLORIDA 
DEPARTMENT  OF  CORRECTIONS.  C.  A.  llth  Cir.  Certiorari 
denied. 

No.  85-5610.  PRUITT  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  763  F.  2d  1256. 

No.  85-5619.  CAMPBELL  v.  DEPARTMENT  OF  TRANSPORTA- 
TION, FEDERAL  AVIATION  ADMINISTRATION.  C.  A.  Fed.  Cir. 
Certiorari  denied.  Reported  below:  776  F.  2d  1059. 

No.  85-5625.  SAKELLAR  v.  LOCKHEED  MISSILES  &  SPACE  Co. 
C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  765  F.  2d 
1453. 

No.  85-5628.  DODSON  v.  COOPER,  SUPERINTENDENT,  SHADOW 
MOUNTAIN  CORRECTIONAL  FACILITY.  Sup.  Ct.  Colo.  Certiorari 
denied.  Reported  below:  705  P.  2d  500. 

No.  85-5633.  CALPIN  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  916. 

No.  85-5830.  ARNEY  ET  AL.  v.  BLACK  ET  AL.  C.  A.  10th  Cir. 
Certiorari  denied. 

No.  85-5838.  HAYES  v.  ILLINOIS.  App.  Ct.  111.,  2d  Dist. 
Certiorari  denied.  Reported  below:  131  111.  App.  3d  1166,  493 
N.  E.  2d  1224. 

No.  85-5840.  GLICK  v.  LOCKHART,  DIRECTOR,  ARKANSAS  DE- 
PARTMENT OF  CORRECTION.  C.  A.  8th  Cir.  Certiorari  denied. 
Reported  below:  770  F.  2d  737. 

No.  85-5847.  BROWN  v.  WOODS  ET  AL.  Ct.  App.  Ga.  Certio- 
rari denied. 

No.  85-5850.  LILLARD  v.  GREEK,  WARDEN,  ET  AL.  C.  A.  7th 
Cir.  Certiorari  denied.  Reported  below:  776  F.  2d  1050. 

No.  85-5854.  HUGHS  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1171. 

No.  85-5855.  CRAWFORD  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1175. 

No.  85-5856.  GOODWIN  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  631. 


ORDERS  1085 

474  U.  S.  January  21,  1986 

No.  85-5857.  DAMPIER  v.  LANE,  DIRECTOR,  ILLINOIS  DE- 
PARTMENT OF  CORRECTIONS,  ET  AL.  C.  A.  7th  Cir.  Certiorari 
denied.  Reported  below:  774  F.  2d  1168. 

No.  85-5861.  BAXTER  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1175. 

No.  85-5862.  CHINDAWONGSE  v.  UNITED  STATES.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  771  F.  2d  840. 

No.  85-5863.  FLOWERS  v.  GENERAL  MOTORS  CORP.,  BUICK 
MOTOR  DIVISION.  Sup.  Ct.  Mich.  Certiorari  denied.  Reported 
below:  422  Mich.  912. 

No.  85-5864.  BRANCEWICZ  v.  C.  E.  LUMMUS  Co.  C.  A.  3d 
Cir.  Certiorari  denied. 

No.  85-5869.  LAYNE  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  772  F.  2d  916. 

No.  85-5870.  BOAG  v.  RAINES,  WARDEN.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  769  F.  2d  1341. 

No.  85-5871.  PRITCHARD  v.  UNITED  STATES.  C.  A.  7th  Cir. 
Certiorari  denied.  Reported  below:  773  F.  2d  873. 

No.  85-5876.  MCQUEEN  v.  BARTON,  ASSISTANT  SUPERIN- 
TENDENT, OPERATIONS,  FLORIDA  STATE  PRISON.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  773  F.  2d  1237. 

No.  85-5877.  ZENO  v.  MAGGIO,  WARDEN,  ET  AL.  C.  A.  5th 
Cir.  Certiorari  denied. 

No.  85-5883.  WELCH  v.  SMITH,  SUPERINTENDENT,  ATTICA 
CORRECTIONAL  FACILITY.  C.  A.  2d  Cir.  Certiorari  denied. 
Reported  below:  779  F.  2d  37. 

No.  85-5884.  MUHAMMED,  AKA  GRIFFITH  v.  UNITED  STATES. 
C.  A.  4th  Cir.  Certiorari  denied.  Reported  below:  776  F.  2d 
1045. 

No.  85-5885.  TUCKER  v.  UNITED  STATES.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1171. 

No.  85-5887.  OWENS  v.  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied.  Reported  below:  497  A.  2d  1086. 


1086  OCTOBER  TERM,  1985 

January  21,  1986  474  U.  S. 

No.  85-5888.  MCKENZIE  ET  AL.  u  UNITED  STATES.  C.  A. 
5th  Cir.  Certiorari  denied.  Reported  below:  768  F.  2d  602. 

No.  85-5909.  WHARTON  v.  ABBEVILLE  SCHOOL  DISTRICT 
No.  60  ET  AL.  C.  A.  4th  Cir.  Certiorari  denied. 

No.  85-5945.  LUQMAN  v.  OHIO.  Ct.  App.  Ohio,  Cuyahoga 
County.  Certiorari  denied. 

No.  85-6027.  WEST  v.  WARREN  COUNTY  FISCAL  COURT  ET 
AL.  C.  A.  6th  Cir.  Certiorari  before  judgment  denied. 

No.  85-472.  BULLOCH  ET  AL.  v.  UNITED  STATES.  C.  A.  10th 
Cir.  Certiorari  denied.  JUSTICE  WHITE,  JUSTICE  BLACKMUN, 
and  JUSTICE  O'CONNOR  would  grant  certiorari.  THE  CHIEF  JUS- 
TICE took  no  part  in  the  consideration  or  decision  of  this  petition. 
Reported  below:  763  F.  2d  1115. 

No.  85-581.  BULLOCH  ET  AL.  v.  PEARSON  ET  AL.  C.  A.  10th 
Cir.  Certiorari  denied.  JUSTICE  WHITE,  JUSTICE  BLACKMUN, 
and  JUSTICE  O'CONNOR  would  grant  certiorari.  THE  CHIEF  JUS- 
TICE took  no  part  in  the  consideration  or  decision  of  this  petition. 
Reported  below:  768  F.  2d  1191. 

No.  85-509.  SESTRIC  v.  CLARK  ET  AL.  C.  A.  7th  Cir.  Cer- 
tiorari denied.  JUSTICE  WHITE  and  JUSTICE  BLACKMUN  would 
grant  certiorari.  Reported  below:  765  F.  2d  655. 

No.  85-528.  GOLDFARB  v.  SUPREME  COURT  OF  VIRGINIA 
ET  AL.  C.  A.  4th  Cir.  Motion  of  American  Corporate  Counsel 
Association  for  leave  to  file  a  brief  as  amicus  curiae  granted. 
Certiorari  denied.  JUSTICE  WHITE  and  JUSTICE  BLACKMUN 
would  grant  certiorari.  Reported  below:  766  F.  2d  859. 

No.  85-735.  SIRIPAN  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  JUSTICE  WHITE  would  grant  certiorari. 
Reported  below:  771  F.  2d  840. 

No.  85-898.  GEIGER,  CONSERVATOR  OF  THE  ESTATE  OF  GEI- 
GER  v.  UNITED  STATES  ET  AL.  C.  A.  9th  Cir.  Certiorari  de- 
nied. JUSTICE  WHITE  would  grant  certiorari.  Reported  below: 
769  F.  2d  583. 


ORDERS  1087 

474  U.  S.  January  21,  1986 

No.  85-847.  MASON  ET  AL.  v.  CONTINENTAL  GROUP,  INC., 
ET  AL.  C.  A.  llth  Cir.  Certiorari  denied.  Reported  below: 
763  F.  2d  1219. 

JUSTICE  WHITE,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

In  this  case,  the  United  States  Court  of  Appeals  for  the  Elev- 
enth Circuit  ruled  that  beneficiaries  of  an  Employee  Retirement 
Income  Security  Act  (ERISA)  plan  must  exhaust  internal  plan 
remedies  before  suing  plan  fiduciaries  on  the  basis  of  an  alleged 
violation  of  duties  imposed  by  the  statute.  Although  this  ruling  is 
consistent  with  the  law  of  the  Seventh  Circuit,  see  Kross  v.  West- 
ern Electric  Co.,  701  F.  2d  1238  (1983),  it  is  at  odds  with  a  deci- 
sion of  the  Ninth  Circuit,  Amaro  v.  Continental  Can  Co.  724  F. 
2d  747  (1984),  which  held  that  plaintiffs  alleging  a  statutory  vio- 
lation (as  opposed  to  a  mere  denial  of  benefits  owing  under  an 
ERISA  plan)  need  not  exhaust  internal  remedies.*  The  Third 
Circuit  has .  noted  the  existence  of  this  conflict  but  failed  to  take 
a  direct  position  on  it,  see  Barrowclough  v.  Kidder,  Peabody  & 
Co.,  752  F.  2d  923,  939,  n.  15  (1985),  although  that  court's  accept- 
ance of  the  notion  that  statutory  ERISA  claims  are  normally  not 
arbitrable  seems  to  reflect  agreement  with  the  Ninth  Circuit's  ap- 
proach. See  id.,  at  941. 

I  believe  that  the  Court  should  grant  certiorari  in  this  case  in 
order  to  resolve  the  uncertainty  over  the  existence  of  an  exhaus- 
tion requirement  in  cases  of  this  kind.  The  increasing  signifi- 
cance of  ERISA  litigation  is  apparent  from  the  growing  number 
of  such  cases  that  appear  on  our  docket;  in  a  field  so  productive 
of  federal  litigation,  the  need  for  clear  procedural  rules  governing 
access  to  the  federal  courts  is  imperative.  Moreover,  because  the 
coverage  of  particular  ERISA  plans  frequently  extends  to  benefi- 
ciaries in  more  than  one  State— and,  no  doubt,  in  more  than  one 
judicial  circuit— differences  in  the  rules  governing  access  to  fed- 
eral court  for  the  purpose  of  pressing  a  claim  under  ERISA  may 
have  the  troubling  effect  of  encouraging  forum  shopping  by  plain- 
tiffs. Accordingly,  the  conflict  among  the  Circuits  over  the  issue 
of  an  exhaustion  requirement  under  ERISA  can  hardly  be  passed 


*Cf.  Amato  v.  Bernard,  618  F.  2d  559  (CA9  1980)  (adopting  exhaustion  re- 
quirement where  beneficiary  merely  seeks  benefits  due  under  the  terms  of  an 
ERISA  plan). 


1088  OCTOBER  TERM,  1985 

January  21,  1986  474  U.  S. 

over  as  an  unimportant  one  unworthy  of  this  Court's  attention. 
I  therefore  dissent  from  the  denial  of  certiorari. 

No.  85-5571.  MESSER  v.  KEMP,  WARDEN.  C.  A.  llth  Cir. 
Certiorari  denied.  JUSTICE  BLACKMUN  dissents  from  the  denial 
of  the  petition  for  writ  of  certiorari.  Reported  below:  760  F.  2d 
1080. 

JUSTICE  MARSHALL,  with  whom  JUSTICE  BRENNAN  joins, 
dissenting. 

Petitioner  in  this  case,  James  Messer,  was  sentenced  to  death 
by  a  jury  that  was  unable  in  any  meaningful  fashion  to  give  him 
the  "individualized  consideration"  to  which  he  has  a  constitutional 
right,  Lockett  v.  Ohio,  438  U.  S.  586,  605  (1978)  (plurality  opin- 
ion), because  of  egregiously  unprofessional  assistance  by  his  trial 
counsel.  I  believe  that  petitioner  has  clearly  met  the  standard 
that  this  Court  set  in  Strickland  v.  Washington,  466  U.  S.  668 
(1984),  for  establishing  ineffective  assistance  during  the  sentenc- 
ing phase  of  his  trial,  and  I  would  accordingly  grant  the  petition 
and  vacate  petitioner's  sentence. 


Petitioner  was  convicted  of  kidnaping  and  murdering  his  8-year- 
old  niece.  After  his  conviction  and  sentence  were  affirmed  on 
direct  review,  he  sought  a  writ  of  habeas  corpus  in  state  court, 
alleging,  inter  alia,  ineffective  assistance  of  counsel.  The  court 
declined  to  hold  a  hearing,  made  no  findings,  and  denied  the  writ. 
Petitioner  then  sought  federal  habeas  relief.  The  Magistrate 
to  whom  the  case  was  referred  recommended  that  the  writ  be 
granted  as  to  the  sentence,  concluding  that  petitioner  had  received 
ineffective  assistance  during  the  penalty  phase.  The  District 
Court  nevertheless  denied  the  writ.  It  concluded  that  petitioner 
had  not  established  prejudice,  as  required  by  Strickland,  supra, 
and  therefore  did  not  reach  the  question  whether  counsel  gave  ad- 
equate assistance.  The  Court  of  Appeals  affirmed,  760  F.  2d  1080 
(CA11  1985),  with  one  judge  dissenting,  id.,  at  1093  (Johnson,  J.). 

II 

The  only  factfinder  that  has  considered  the  question,  the  Fed- 
eral Magistrate,  found  that  petitioner  has  met  the  first  Strickland 
criterion— that  counsel's  performance  at  the  sentencing  phase  was 
"outside  the  wide  range  of  professionally  competent  assistance," 


ORDERS  1089 

1088  MARSHALL,  J.,  dissenting 

Strickland,  supra,  at  690.  Even  the  most  cursory  review  of  peti- 
tioner's trial  demonstrates  that  the  Magistrate's  conclusion  was 
inescapable. 

At  petitioner's  hearing  before  the  Magistrate,  counsel  testified 
that  he  had  decided  as  a  matter  of  strategy  to  adopt  a  "low-key" 
approach  during  the  guilt  phase,  in  hopes  of  establishing  credi- 
bility with  the  jury.  He  had  then  hoped  to  "humanize"  petitioner 
during  the  sentencing  phase  and  try  to  convince  the  jury  to  spare 
petitioner's  life.  760  F.  2d,  at  1088.  Both  the  majority  and 
the  dissenter  in  the  Court  of  Appeals  concluded  that  this  strategy 
was  not  unreasonable  in  light  of  the  overwhelming  evidence  of 
petitioner's  guilt.  Id.,  at  1090,  1095. 

Counsel  succeeded  admirably  in  implementing  the  first  part  of 
his  strategy.  He  made  no  opening  statement  and  put  on  no  case 
in  chief.  He  performed  only  cursory  cross-examination,  and  did 
not  object  to  any  evidence.  Id.,  at  1089.  Counsel's  attempts 
to  carry  out  the  second  prong  of  his  strategy,  however,  were  pite- 
ously  deficient.  His  brief  summation  during  the  guilt  phase,  after 
acknowledging  his  "frustration"  with  the  case,  App.  B  to  Pet.  for 
Cert.  14  (opinion  of  District  Court),  went  on  to  "emphasize  the 
horror  of  the  crime,"  760  F.  2d,  at  1095  (Johnson,  J.,  dissenting), 
to  the  very  jury  that  would  soon  be  called  upon  to  determine 
whether  the  murder  was  "outrageously  or  wantonly  vile,  horrible, 
or  inhuman,"  Ga.  Code  Ann.  §  17-10-30(b)(7)  (1982). 

During  the  penalty  phase,  counsel  put  on  a  single  witness,  peti- 
tioner's mother.  She  testified  concerning  petitioner's  childhood, 
which  was  marred  by  mistreatment  at  the  hands  of  his  father  and 
his  parents'  subsequent  divorce.  The  effect  of  this  implied  plea 
for  pity,  however,  was  then  destroyed  when  counsel,  despite  hav- 
ing previously  warned  the  witness  to  avoid  the  topic,  asked  her 
what  petitioner  had  told  her  about  his  expectations.  She  replied 
"he  and  I  both,  my  sister,  and  my  mother  expect  the  death  pen- 
alty here."  760  F.  2d,  at  1096. 

It  was  counsel's  summation  during  the  penalty  phase,  however, 
that  led  the  Magistrate  to  conclude  that  petitioner's  Sixth  Amend- 
ment right  to  counsel  had  been  violated.  His  statement,  which 
the  Magistrate  called  a  "nonargument,"  id.,  at  1097,  made  no  men- 
tion of  petitioner's  mother's  testimony  nor  of  any  other  mitigating 


1090  OCTOBER  TERM,  1985 

MARSHALL,  J.,  dissenting  474  U.  S. 

evidence.*  Counsel  did  not  inform  the  jury,  during  summation 
or  at  any  other  time,  that  petitioner  had  no  prior  criminal  history, 
had  been  steadily  employed,  had  an  honorable  military  record,  had 
been  a  regular  churchgoer,  and  had  cooperated  with  the  police. 
See  id.j  at  1096,  n.  2.  Counsel  did  not  give  the  jury  a  single 
reason  why  it  should  spare  petitioner's  life.  As  the  Magistrate 
noted,  counsel  "utterly  failed  to  point  out  any  matters  which  were 
favorable  to  [petitioner]— to  ^humanize'  him,  even  though  this  was 
his  alleged  'tactic.'"  App.  C  to  Pet.  for  Cert.  51  (Magistrate's 
Report  and  Recommendation).  Instead,  counsel  repeatedly 
hinted  that  death  was  the  most  appropriate  sentence  for  peti- 
tioner. He  "focused  on  the  awesome  burden  placed  on  the  jury  in 
determining  Messer's  fate  and  the  fortitude  that  would  be  re- 
quired of  a  juror  to  decide  to  let  him  live,  as  if  the  easiest 
and  most  obvious  verdict  were  the  death  sentence."  760  F.  2d, 
at  1097. 

The  net  result  was  that  petitioner  was  without  an  advocate  at 
the  sentencing  phase.  "No  one  addressed  the  jury  and  said  that 
Messer  did  not  deserve  to  die."  Ibid.  Like  the  Magistrate  and 
the  dissenter  in  the  Court  of  Appeals,  I  cannot  help  but  conclude 
that  a  total  breakdown  in  the  adversarial  process  occurred  in  this 
case. 

Ill 

The  District  Court  rejected  the  Magistrate's  conclusion  because 
it  felt  that  petitioner  had  not  established  the  second  Strickland 
criterion— that  there  is  a  "reasonable  probability  that,  but  for 
counsel's  unprofessional  errors,  the  result  of  the  proceeding  would 
have  been  different,"  Strickland,  supra,  at  694.  The  Court  of 
Appeals  held  that  counsel's  performance  was  not  constitutionally 
deficient.  Yet  it  never  even  mentioned  counsel's  summation  nor 
the  Magistrate's  finding  that  the  summation  was  unreasonable  and 
ineffective.  I  can  only  presume  that  the  Court  of  Appeals  failed 
to  find  prejudice  as  to  the  summation,  based  on  its  conclusory 
statement  that  "petitioner  has  failed  to  show  that  [counsel's]  per- 
formance during  the  sentencing  phase  was  deficient  to  the  extent 
that  this  court  cannot  rely  on  the  result  as  being  just."  760  F. 
2d,  at  1092  (citation  omitted). 


*Counsel's  summation  at  the  penalty  phase,  in  its  entirety,  is  set  out  in  an 
Appendix  to  this  opinion. 


ORDERS  1091 

1088  Appendix  to  opinion  of  MARSHALL,  J.,  dissenting 

The  result  below  is  thus  an  example  of  the  gross  unfairness  that 
results  when  the  Strickland  prejudice  standard  is  applied  without 
regard  to  the  special  characteristics  of  a  capital  sentencing  pro- 
ceeding. See  Strickland,  466  U.  S.,  at  715-717  (MARSHALL,  J., 
dissenting).  Those  proceedings  have  a  much  different  function 
than  the  relatively  mechanical  inquiry  of  the  guilt  phase,  and  the 
likelihood  that  an  appellate  court  can  accurately  divine  a  jury's 
probable  response  to  evidence  or  arguments  is  accordingly  less. 
Just  last  Term  this  Court  reiterated  that  a  capital  defendant  has  a 
constitutional  right  to  the  consideration  of  "[w]hatever  intangibles 
a  jury  might  consider  in  its  sentencing  determination."  Caldwell 
v.  Mississippi,  472  U.  S.  320,  330  (1985);  see  also  Lockett  v.  Ohio, 
438  U.  S.  586  (1978)  (defendant  has  constitutional  right  to  con- 
sideration of  mitigating  factors).  Yet  as  applied  by  the  courts 
below,  Strickland  permits  unprofessional  conduct  by  trial  counsel 
to  deprive  a  capital  defendant  of  that  right. 

Viewed  hi  the  correct  light— that  is,  considering  what  the  jury- 
in  this  case  might  have  done  if  presented  with  a  true  adversarial 
debate  on  the  appropriateness  of  sentencing  petitioner  to  death— 
one  cannot  possibly  conclude  that  there  is  no  "reasonable  proba- 
bility" that  the  outcome  would  have  been  different.  This  is  not  a 
case  in  which,  despite  unreasonable  errors  by  counsel,  the  jury 
was  presented  with  a  substantially  accurate  picture  of  the  defend- 
ant and  with  some  cogent  argument  in  favor  of  life.  The  jury 
here  was  never  apprised  of  several  substantial  mitigating  factors. 
More  important,  counsel  presented  the  jury  with  no  reasons  to 
spare  petitioner's  life  and,  indeed,  strongly  intimated  that  he  could 
think  of  none. 

Despite  these  strong  indicia  of  unreliability,  the  District  Court 
found  the  absence  of  prejudice  as  to  the  sentencing  phase  based 
primarily  on  its  conclusion  that  the  evidence  of  petitioner's  guilt 
was  overwhelming,  App.  B  to  Pet.  for  Cert.  3,  and  the  Court 
of  Appeals  blithely  assumed  the  jury's  role,  finding  the  result 
"just,"  760  F.  2d,  at  1092.  If  the  Strickland  prejudice  standard 
has  any  vitality  at  all,  it  requires  a  more  searching  inquiry  than 
that.  I  dissent. 

APPENDIX  TO  OPINION  OF  MARSHALL,  J., 

DISSENTING 

"Your  Honor,  ladies  and  gentlemen,  since  ya'll  were  selected 
I  might  add  I  haven't  taken  the  opportunity  to  talk  to  ya'll  a  lot 


1092  OCTOBEE  TERM,  1985 

Appendix  to  opinion  of  MARSHALL,  J.,  dissenting      474  U.  S. 

but  I  have  been  honest  and  in  that  honesty  I  haven't  tried  in  any 
form  or  fashion  to  do  anything  other  than  see  that  the  facts  in  this 
case  were  presented  and  they  were  very  ably  presented,  there's 
no  question  about  that. 

"Now,  I  knew  that  when  I  got  involved  in  this  case  at  the  begin- 
ning they  would  be.  The  question  in  this  case  is  not  the  facts. 
Twenty-nine  times  I  said  'no  questions.'  Thirty  times  I  said  'no 
objections'  to  a  witness  being  excused.  Each  and  every  one  of  us 
knows  the  young  girl  died.  Like  Mr.  Poster,  I  have  two  young 
children  of  my  own  and  believe  you  me  that  makes  it  more  difficult 
for  me  to  stand  here  in  front  of  you  all  right  now,  each  and  every 
one  of  you,  than  it  does  for  Mr.  Foster,  I  dare  say.  I  don't  ask 
you  to  appreciate  that.  I  don't  ask  for  that  at  all.  I  just  want  to 
be  straight  up  and  honest  about  this  whole  thing  and  where  we're 
all  coining  from.  Each  and  every  one  of  you  in  this  jury  box 
know  before  this  case  started,  or  had  some  slight  idea,  that  we 
were  going  to  be  at  this  point  today  where  we  are  now  and  the  de- 
cision was  going  to  come  down  to  the  twelve  of  you  and  what  you 
determine  to  be  Mr.  Messer's  fate. 

"I  dare  say,  and  it  has  been  suggested  to  me,  and  I  say  this  in 
all  humble  candor,  by  some  both  here  and  in  Rome  that  I  ought  to 
argue  to  this  jury  to  leave  him  alive  is  a  more  cruel  punishment 
because  he's  got  to  live  with  it,  so  I  don't  know  what  to  say  to 
you.  I  really  don't.  I  know  that  at  this  particular  point  there  is 
no  question  in  my  mind  that  the  verdict  this  jury  spoke  in  this 
court  room  today  was  the  truth.  I  don't  contest  that  at  all.  The 
question  is  when  the  judge  tells  you  what  the  law  is  in  this  situa- 
tion and  what  is  considered  to  make  something  aggravating  cir- 
cumstances, what  is  considered  to  mitigate  circumstances,  he's 
also  going  to  tell  you  that  in  a  situation  like  this  you  can  almost 
disregard  those  and  leave  it  up  to  yourselves,  your  gut  feeling  as 
to  what  it  is  you  feel  speaks  the  voice  of  the  community. 

"Now,  the  community,  a  great  part  of  the  community,  has  been 
here  in  this  court  room  as  potential  jurors  and  as  members  of  the 
audience,  and  it  concerns  Polk  County.  Interestingly  enough 
Judge  Winn  told  me  two  weeks  ago  that  he  didn't  think  there 
would  be  anyone  here  by  the  end  of  the  trial  that  it  had  been  a 
long  time  since  there  had  been  a  trial  like  this  and  the  last  time 
a  good  many  years  ago  he  could  remember  that  there  just  wasn't 
ten  or  fifteen  people  by  the  time  the  trial  got  done  with,  people 
were  just  that  uninterested.  But  that's  not  true  in  this  situation 


ORDERS  1093 

474  U.  S.  January  21,  1986 

because  people  have  been  very  interested,  and  very  interested 
right  now  with  what  is  this  community's  voice  through  ya'll  going 
to  be. 

"Unfortunately  I  do  not  agree  again  with  Mr.  Poster  as  to  his 
position  that  each  and  every  one  of  you  by  rendering  a  verdict 
that  speaks  for  the  death  penalty  are  being  brave.  In  not  doing 
that  you're  showing  people  outside  of  Polk  County  that  you  don't 
know  how  to  deal  with  people  who  take  the  lives  of  others  in  Polk 
County.  That's  not  the  issue.  Nor  is  it  the  bravest  thing  to  do 
in  this  situation  to  vote  the  death  penalty.  It  would  take  a  heck 
of  a  lot  more  guts  to  say  that  there's  something  in  that  human 
being  who  sits  over  there,  sits  over  there  having  to  remember 
what  ya'll  have  just  learned  about  him.  There's  something  that 
put  him  on  this  earth  and  it's  worth  leaving  on  this  earth.  Ya'll 
have  the  power  to  extinguish  him  from  this  earth,  a  legal  right  to 
do  that  if  you  so  desire.  The  District  Attorney  does  not  have 
that  right.  You  are  but  his  implement  to  do  that,  each  one  of 
you,  all  twelve  of  you,  to  the  extent  that  you  choose  to  use  that 
the  law  allows  each  and  every  one  of  you  to  do  it.  That's  an  awe- 
some responsibility  and  I  dare  say  I  would  rather  be  over  here 
than  in  ya'll's  seats,  because  as  a  parent  under  these  circum- 
stances .  .  .  but  that's  for  ya'll  to  decide.  Please  however,  as  the 
judge  will  charge  you,  the  decision  is  each  and  every  one  of  yours 
individually  and  then  as  a  group,  your  decision  be  it  give  him  life 
or  death  is  your  decision,  you  need  not  worry  about  what  happens 
after  that  decision  as  to  how  it's  carried  out.  That  makes  it  a  lot 
easier  as  far  as  the  decision  is  concerned  in  having  to  live  with  it 
but  it's  still  your  decision,  and  if  your  decision  is  life  that  is  a  deci- 
sion that  you  have  come  about  to  make  freely  and  honestly  based 
upon  all  that  you've  heard  in  the  case  and  there  might  be  some 
reason  to  leave  this  man  on  the  face  of  the  earth  then  hold  onto 
that  decision,  if  not  then  let  it  go,  but  make  it  your  own  decision 
each  and  every  one  of  you,  don't  make  it  a  decision  of  your  friends 
and  neighbors  that  you  just  adopt.  I  dare  say  ten  years  ago  had 
any  of  you  ever  pictured  yourselves  being  in  this  situation  and 
having  to  make  this  decision  ten  years  from  then  you  wouldn't. 

"Thank  you."     Tr.  516-519. 

No.  85-5678.     MCKENNA  v.  NEVADA.     Sup.  Ct.  Nev.; 
No.  85-5727.     JOHNSON  v.  MARYLAND.     Ct.  App.  Md.; 
No.  85-5831.     STANO  v.  FLORIDA.     Sup.  Ct.  Fla.; 


1094  OCTOBER  TERM,  1985 

January  21,  1986  474  U.  S. 

No.  85-5882.     GRIFFIN  v.  FLORIDA.     Sup.  Ct.  Fla.; 

No.  85-5926.  BUTLER  v.  SOUTH  CAROLINA.  Sup.  Ct.  S.  C.; 
and 

No.  85-5930.  FRANCIS  v.  FLORIDA.  Sup.  Ct.  Fla.  Certiorari 
denied.  Reported  below:  No.  85-5678,  101  Nev.  338,  705  P.  2d 
614;  No.  85-5727,  303  Md.  487,  495  A.  2d  1;  No.  85-5831,  473  So. 
2d  1282;  No.  85-5882,  474  So.  2d  777;  No.  85-5926,  286  S.  C.  441, 
334  S.  E.  2d  813;  No.  85-5930,  473  So.  2d  672. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentences  in  these  cases. 

No.  85-5747.  WRIGHT  v.  FLORIDA.  Sup.  Ct.  Fla.  Certiorari 
denied.  Reported  below:  473  So.  2d  1277. 

JUSTICE  BLACKMUN,  with  whom  JUSTICE  BRENNAN  and  JUS- 
TICE MARSHALL  join,  dissenting. 

I  would  grant  certiorari  in  this  capital  case  to  ensure  that  the 
Florida  courts  have  not  sentenced  a  man  to  die  based  on  a  convic- 
tion obtained  in  violation  of  the  Sixth  Amendment. 

On  February  6,  1983,  a  woman  was  found  murdered  in  the  bed- 
room of  her  home.  She  apparently  had  died  the  previous  night 
after  being  raped  and  stabbed.  All  the  doors  to  her  home  were 
locked,  but  a  back  window  was  found  open.  Several  weeks  later, 
Charles  Westberry  told  his  wife  that  petitioner  Joel  Wright  had 
come  to  Westberry's  trailer  shortly  after  daylight  on  the  morning 
of  February  6  and  had  confessed  to  killing  the  victim.  Wright 
lived  with  his  parents  near  the  victim's  home.  Westberry's  wife 
notified  the  police,  and  Wright  was  arrested  and  tried  for  the 
crime.  At  trial,  Westberry  was  the  State's  principal  witness. 
He  testified  that  Wright  had  told  him  on  the  morning  of  February 
6  that  Wright  had  entered  the  victim's  house  through  the  back 
window  to  steal  money,  that  the  victim  had  discovered  him  as  he 
was  wiping  his  fingerprints  from  her  purse,  and  that  he  had  killed 
her  because  he  did  not  want  to  return  to  prison.  According  to 
Westberry,  Wright  counted  out  $290  he  claimed  to  have  taken 
from  the  victim's  home,  and  he  asked  Westberry  to  tell  the  au- 
thorities that  Wright  had  spent  the  previous  night  at  Westberry's 


ORDERS  1095 

1094  BLACKMUN,  J.,  dissenting 

trailer.  Another  witness  for  the  State  testified  that,  approxi- 
mately one  month  before  the  murder,  he  and  Wright  had  stolen 
money  from  the  victim's  home  after  entering  through  the  window 
later  found  open  on  February  6.  The  jury  also  was  told  that  a 
fingerprint  identified  as  Wright's  had  been  found  on  a  portable 
stove  in  the  victim's  bedroom. 

Wright  took  the  stand  and  denied  involvement  in  the  murder. 
He  testified  that  he  had  returned  home  from  a  party  at  approxi- 
mately 1  a.  m.  on  February  6,  but  had  found  himself  locked  out. 
He  claimed  that  he  then  had  walked  along  Highway  19  to  West- 
berry's  trailer,  where  he  had  spent  the  night.  He  also  presented 
a  witness  who  testified  that,  late  on  the  night  of  February  5  and 
early  in  the  morning  of  February  6,  he  had  seen  a  group  of  three 
men,  whom  he  had  not  recognized,  in  the  general  vicinity  of  the 
victim's  home. 

After  the  close  of  evidence  but  prior  to  final  arguments,  the 
defense  moved  to  reopen  the  case  in  order  to  introduce  the  testi- 
mony of  a  newly  discovered  witness,  Kathy  Waters.  Waters  ap- 
parently had  read  newspaper  accounts  of  the  trial,  had  listened  to 
parts  of  the  testimony,  and  had  discussed  the  trial  with  friends  in 
attendance.  She  offered  to  testify  that,  shortly  after  midnight  on 
February  6,  she  had  seen  a  person  who  could  have  been  Wright 
walking  along  Highway  19,  and  had  also  observed  three  persons 
she  did  not  recognize  near  the  victim's  home.  Waters  claimed 
that  she  had  not  realized  she  possessed  relevant  information  until 
the  morning  her  testimony  was  proffered,  and  that  she  had  come 
forward  of  her  own  volition.  The  trial  judge  denied  Wright's  mo- 
tion, noting  that  Florida's  sequestration  rule  would  be  rendered 
"meaningless"  if,  after  discussing  the  case  with  others,  a  witness 
were  permitted  "to  testify  in  support  of  one  side  or  the  other,  al- 
most as  if  that  testimony  were  tailor-made."  473  So.  2d  1277, 
1279  (1985).  Although  the  State  acknowledged  that  the  violation 
of  the  sequestration  rule  had  been  inadvertent,  it  argued  that 
the  prosecution  "could  very  well  be  substantially  prejudiced"  if 
Waters  were  permitted  to  testify.  Id.,  at  1280.  Wright  was 
convicted  and  sentenced  to  die. 

On  appeal,  the  Supreme  Court  of  Florida  held  that  the  trial 
judge's  rigid  application  of  the  State's  sequestration  rule  was 
inconsistent  with  Wright's  Sixth  Amendment  right  to  present  wit- 
nesses in  his  behalf.  The  court  affirmed  the  conviction,  however, 
because  it  deemed  the  error  harmless: 


1096  OCTOBER  TERM,  1985 

BLACKMUN,  J.,  dissenting  474  U.  S. 

"The  record  already  contained  unrefuted  testimony  that  three 
individuals  were  gathered  near  the  victim's  home.  The  de- 
fense did  not  contend  that  the  proffered  witness  would  pur- 
port to  identify  [Wright]  as  the  person  she  observed  on  the 
road  or  that  her  testimony,  if  accepted  by  the  jury,  would 
require  a  finding  by  the  jury  that  [Wright]  did  not  commit 
the  murder.  Based  upon  our  review  of  the  record,  including 
the  nature  of  the  proffered  testimony,  we  conclude  that  the 
excluded  evidence  would  not  have  affected  the  verdict  and  its 
exclusion  was  harmless  beyond  a  reasonable  doubt."  473  So. 
2d,  at  1280-1281. 

The  State  Supreme  Court  thus  recognized  that  a  conviction 
resulting  from  a  trial  marred  by  constitutional  error  must  be 
reversed  unless  the  error  was  "harmless  beyond  a  reasonable 
doubt."  Chapman  v.  California,  386  U.  S.  18,  24  (1967);  see 
also,  e.  g.,  United  States  v.  Hasting,  461  U.  S.  499  (1983).  It 
seems  to  me,  however,  that  the  court  failed  to  show  the  requisite 
attentiveness  to  the  possibility  of  prejudice.  A  constitutional  vi- 
olation may  be  excused  under  Chapman  only  if  the  State  "prove[s] 
beyond  a  reasonable  doubt  that  the  error  complained  of  did  not 
contribute  to  the  verdict  obtained."  386  U.  S.,  at  24.  It  is  not 
sufficient  for  a  reviewing  court  to  conclude,  as  the  Supreme  Court 
of  Florida  appears  to  have  done  in  this  case,  that  in  its  judgment 
the  error  did  not  change  the  verdict.  The  question  is  whether  the 
State  has  disproved  any  "reasonable  possibility"  that  the  error 
made  a  difference.  Ibid.;  Fahy  v.  Connecticut,  375  U.  S.  85,  86 
(1963). 

The  State  of  Florida  may  well  be  able  to  carry  that  burden  in 
this  case,  but  nothing  in  the  Supreme  Court's  opinion  or  in  the 
State's  brief  before  this  Court  convinces  me  that  it  has  done 
so.  Since  Wright's  fingerprint  could  have  been  left  during  the 
alleged  earlier  break-in,  this  case  comes  down  to  Wright's  word 
against  Westberry's.  Waters'  testimony  obviously  would  not 
have  proved  Wright  innocent,  but  it  would  have  provided  some 
corroboration  for  Wright's  story.  Questions  of  witness  credibil- 
ity, of  course,  are  within  the  "special  province"  of  the  factfinder, 
Inwood  Laboratories,  Inc.  v.  Ives  Laboratories,  Inc.,  456  U.  S. 
844,  856  (1982),  and  I  cannot  say  "beyond  a  reasonable  doubt"  that 
the  corroboration  Waters  offered  could  not  have  altered  the  jury's 
assessment  of  the  conflicting  stories.  More  to  the  point,  I  do  not 


ORDERS  1097 

474  U.  S.  January  21,  1986 

see  how  the  Supreme  Court  of  Florida  could  make  that  statement, 
particularly  given  the  prosecution's  claim  of  potentially  substantial 
prejudice  and  the  trial  judge's  suggestion  that  Waters'  testimony 
appeared  almost  "tailor-made"  for  the  defense. 

The  Chapman  rule  was  meant  to  be  more  than  merely  a  formula 
to  incant  before  affirming  the  results  of  constitutionally  infirm 
prosecutions.  For  the  rule  to  have  content,  a  reviewing  court 
must  not  declare  a  constitutional  error  harmless  without  first 
conducting  a  careful  and  probing  inquiry  into  the  possibility  of 
prejudice.  Nothing  less  will  suffice  if  the  court  is  to  be  convinced 
'"beyond  a  reasonable  doubt"  that  the  error  had  no  effect  on  the 
verdict.  Furthermore,  at  least  in  any  case  where  the  harmless- 
ness  of  an  error  is  as  questionable  as  it  is  here,  an  appellate  court 
should  spell  out  its  reasoning  in  sufficient  detail  to  permit  this 
Court  to  verify  compliance  with  Chapman.  Our  concern  of  course 
must  be  not  merely  that  Chapman  is  cited,  but  that  it  is  followed 
conscientiously.  For  me,  that  concern  is  not  satisfied  by  the  opin- 
ion of  the  Florida  Supreme  Court  in  this  case,  particularly  given  the 
sentence  imposed.  Consequently,  I  would  grant  certiorari,  vacate 
the  judgment,  and  remand  for  a  determination  whether  there  is  any 
"reasonable  possibility"  that  the  automatic  exclusion  of  Waters' 
testimony  contributed  to  Wright's  conviction. 

Rehearing  Denied 

No.  85-48.  SUAREZ  v.  HECKLER,  SECRETARY  OF  HEALTH  AND 
HUMAN  SERVICES,  ante,  p.  844; 

No.  85-247.  CRANBERG  v.  CONSUMERS  UNION  OF  UNITED 
STATES,  INC.,  ET  AL.,  ante,  p.  850; 

No.  85-295.  COUNTY  OF  Los  ANGELES  ET  AL.  v.  KLING,  ante, 
p.  936; 

No.  85-583.     FAHEY  v.  BECKLEY  ET  AL.,  ante,  p.  1001; 

No.  85-650.  McCoRSTiN  v.  UNITED  STATES  STEEL  CORP., 
ante,  p.  1008; 

No.  85-5121.     FREELAND  v.  UNITED  STATES,  ante,  p.  1009; 

No.  85-5547.  SPELLMAN  v.  INTEGON  GENERAL  INSURANCE 
CORP.,  ante,  p.  1010;  and 

No.  85-5647.  WILSON  u  UNITED  STATES,  ante,  p.  1012.  Pe- 
titions for  rehearing  denied. 

No.  84-6943.     MAZAK  v.  UNITED  STATES,  ante,  p.  840;  and 
No.  85-5177.      GORDON  v.  IDAHO,  ante,  p.  803.     Motions  for 
leave  to  file  petitions  for  rehearing  denied. 


1098  OCTOBER  TERM,  1985 

474  U.  S. 

JANUARY  27,  1986 

Appeals  Dismissed 

No.  85-616.  SHARON  STEEL  CORP.  v.  CITY  OF  FAIRMONT, 
WEST  VIRGINIA,  ET  AL.  Appeal  from  Sup.  Ct.  App.  W.  Va. 
dismissed  for  want  of  substantial  federal  question.  JUSTICE 
BRENNAN,  JUSTICE  WHITE,  and  JUSTICE  BLACKMUN  would  note 
probable  jurisdiction  and  set  case  for  oral  argument.  Reported 
below: W.  Va. ,  334  S.  E.  2d  616. 

No.  85-871.  WILLARDO  v.  INDIANA.  Appeal  from  Ct.  App. 
Ind.  dismissed  for  want  of  jurisdiction.  Treating  the  papers 
whereon  the  appeal  was  taken  as  a  petition  for  writ  of  certiorari, 
certiorari  denied.  Reported  below:  476  N.  E.  2d  540. 

No.  85-967.  SMITH  ET  ux.  v.  UNITED  STATES  ET  AL.  Appeal 
from  C.  A.  llth  Cir.  dismissed  for  want  of  jurisdiction.  Treating 
the  papers  whereon  the  appeal  was  taken  as  a  petition  for  writ  of 
certiorari,  certiorari  denied. 

No.  85-5786.  DAVIS  v.  FIRST  STATE  BANK.  Appeal  from 
Sup.  Ct.  Pa.  dismissed  for  want  of  jurisdiction.  Treating  the 
papers  whereon  the  appeal  was  taken  as  a  petition  for  writ  of 
certiorari,  certiorari  denied. 

Certiorari  Granted— Vacated  and  Remanded 

No.  85-193.  U.  S.  TRUST  CORP.  v.  BOARD  OF  GOVERNORS  OF 
THE  FEDERAL  RESERVE  SYSTEM  ET  AL.  C.  A.  llth  Cir.  Cer- 
tiorari granted,  judgment  vacated,  and  case  remanded  for  further 
consideration  in  light  of  Board  of  Governors  of  Federal  Reserve 
System  v.  Dimension  Financial  Corp.,  ante,  p.  361.  Reported 
below:  760  F.  2d  1135. 

No.  85-833.  CHULA  VISTA  CITY  SCHOOL  DISTRICT  ET  AL.  v. 
BENNETT,  SECRETARY  OF  EDUCATION.  C.  A.  9th  Cir.  Certio- 
rari granted,  judgment  vacated,  and  case  remanded  to  the  Court 
of  Appeals  to  transfer  the  case  pursuant  to  28  U.  S.  C.  §  1631  to 
the  United  States  Court  of  Appeals  for  the  Federal  Circuit.  See 
28  U.  S.  C.  §  1295(a)(2).  Reported  below:  762  F.  2d  762. 

Miscellaneous  Orders 

No. .  PESCOSOLIDO  ET  AL.  v.  SECRETARY  OF  AGRI- 
CULTURE. Motion  to  direct  the  Clerk  to  file  petition  for  writ 
of  certiorari  out  of  time  denied. 


ORDERS  1099 

474  U.  S.  January  27,  1986 

No.  A-551.  DOLE,  SECRETARY  OF  TRANSPORTATION,  ET  AL. 
v.  RAILWAY  LABOR  EXECUTIVES'  ASSN.  ET  AL.  Application  of 
the  Solicitor  General  to  vacate  a  stay  entered  January  3,  1986,  by 
the  United  States  Court  of  Appeals  for  the  Ninth  Circuit,  pre- 
sented to  JUSTICE  REHNQUIST,  and  by  him  referred  to  the  Court, 
granted. 

No.  D-527.  IN  RE  DISBARMENT  OF  MANN.  Disbarment  en- 
tered. [For  earlier  order  herein,  see  ante,  p.  917.] 

No.  D-531.  IN  RE  DISBARMENT  OF  CAMACHO.  Disbarment 
entered.  [For  earlier  order  herein,  see  ante,  p.  991.] 

No.  84-2030.  BROWN-FORMAN  DISTILLERS  CORP.  v.  NEW 
YORK  STATE  LIQUOR  AUTHORITY.  Ct.  App.  N.  Y.  [Probable 
jurisdiction  noted,  ante,  p.  814.]  Motion  of  National  Conference 
of  State  Legislatures  et  al.  for  leave  to  file  a  brief  as  amid  curiae 
granted.  JUSTICE  BRENNAN  took  no  part  in  the  consideration  or 
decision  of  this  motion. 

No.  85-93.  BAZEMORE  ET  AL.  v.  FRIDAY  ET  AL.;  and 
No.  85-428.  UNITED  STATES  ET  AL.  v.  FRIDAY  ET  AL.  C.  A. 
4th  Cir.  [Certiorari  granted,  ante,  p.  978.]  Motion  of  the  Solici- 
tor General  for  divided  argument  granted,  and  the  Solicitor  Gen- 
eral is  allotted  12  minutes  for  oral  argument  and  petitioners 
Bazemore  et  al.  are  allotted  18  minutes  for  oral  argument. 

No.  85-217.  INTERNATIONAL  LONGSHOREMEN'S  ASSN.,  AFL- 
CIO  v.  DAVIS.  Sup.  Ct.  Ala.  [Probable  jurisdiction  noted,  ante, 
p.  899.]  Motion  of  National  Right  to  Work  Legal  Defense  Foun- 
dation, Inc. ,  for  leave  to  file  a  brief  as  amicus  curiae  granted. 

No.  85-385.  BROCK,  SECRETARY  OF  LABOR  v.  PIERCE 
COUNTY.  C.  A.  9th  Cir.  [Certiorari  granted,  ante,  p.  944.] 
Motion  of  National  Association  of  Counties  et  al.  for  leave  to 
participate  in  oral  argument  as  amid  curiae  and  for  divided  argu- 
ment denied. 

No.  85-390.  CITY  OF  Los  ANGELES  ET  AL.  v.  PREFERRED 
COMMUNICATIONS,  INC.  C.  A.  9th  Cir.  [Certiorari  granted, 
ante,  p.  979.]  Motion  of  National  Institute  of  Municipal  Law  Offi- 
cers for  leave  to  file  a  brief  as  amicus  curiae  granted. 

No.  85-546.  UNITED  STATES  v.  MOTTAZ.  C.  A.  8th  Cir. 
[Certiorari  granted,  ante,  p.  994.]  Motion  of  American  Land 
Title  Association  for  leave  to  file  a  brief  as  amicus  curiae  granted. 


1100  OCTOBER  TERM,  1985 

January  27,  1986  474  U.  S, 

No.  85-5404.  ALLEN  v.  ILLINOIS.  Sup.  Ct.  111.  [Certiorari 
granted,  ante,  p.  979.]  Motion  of  Edwin  F.  Mandel  Legal  Aid 
Clinic  for  leave  to  file  a  brief  as  amicus  curiae  granted. 

No.  85-5749.  IN  RE  ST.  CLAIRE; 

No.  85-5835.  IN  RE  PATRASCU;  and 

No.  85-5973.  IN  RE  THANH.  Petitions  for  writs  of  mandamus 
denied. 

No.  85-5875.     IN  RE  MAY;  and 

No.  85-5878.  IN  RE  MAY.  Petitions  for  writs  of  mandamus 
and/or  prohibition  denied. 

No.  85-5866.  IN  RE  GRIFFIN.  Petition  for  writ  of  prohibition 
denied. 

Certiorari  Granted 

No.  84-1947.  CERBONE,  JUSTICE  OF  THE  VILLAGE  COURT, 
VILLAGE  OF  MT.  Kisco,  NEW  YORK,  ET  AL.  v.  CONWAY.  C.  A. 
2d  Cir.  Certiorari  granted  limited  to  Questions  1,  2,  3,  and  4  pre- 
sented by  the  petition.  Reported  below:  750  F.  2d  205  and  758  F. 
2d46. 

Certiorari  Denied.     (See  also  Nos.  85-871,  85-967,  and  85-5786, 

supra.) 

No.  84-1867.  GILLIES  v.  DELOZIER  ET  AL.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  758  F.  2d  647. 

No.  84-6216.  AUSLEY  ET  AL.  v.  MITCHELL,  WARDEN,  ET  AL. 
C.  A,  4th  Cir.  Certiorari  denied.  Reported  below:  748  F.  2d 
224. 

No.  85-155.  COUGHLIN  ET  AL.  v.  PATTERSON.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  886. 

No.  85-210.  TOWN  OF  SAUGUS  ET  AL.  v.  VOUTOUR.  C.  A.  1st 
Cir.  Certiorari  denied.  Reported  below:  761  F.  2d  812. 

No.  85-535.  QUINAULT  INDIAN  NATION  ET  AL.  v.  WASHING- 
TON ET  AL.  C.  A.  9th  Cir.  Certiorari  denied.  Reported  below: 
761  F.  2d  1404. 

No.  85-547.     HARRELL  v.  UNITED  STATES; 
No.  85-5476.     GIBSON  v.  UNITED  STATES; 
No.  85-5485.     GRAVES  v.  UNITED  STATES; 
No.  85-5488.     MARCACCIO  v.  UNITED  STATES; 


ORDERS  1101 

474  U.  S.  January  27,  1986 

No.  85-5493.  WHITE  v.  UNITED  STATES; 

No.  85-5500.  KEATING  v.  UNITED  STATES; 

No.  85-5506.  SEAVER  v.  UNITED  STATES; 

No.  85-5516.  LACKEY  v.  UNITED  STATES; 

No.  85-5517.  HART  u  UNITED  STATES;  and 

No.  85-5523.  RUBY  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  761  F.  2d  1459  and  766  F. 
2d  1493. 

No.  85-634.  KIRCHNER  v.  KIRCHNER.  Dist.  Ct.  App.  Fla. ,  3d 
Dist.  Certiorari  denied.  Reported  below:  474  So.  2d  226. 

No.  85-638.  CLEMENTE  v.  UNITED  STATES  ET  AL.  C.  A.  9th 
Cir.  Certiorari  denied.  Reported  below:  766  F.  2d  1358. 

No.  85-700.  ALLEN  v.  NATIONAL  LABOR  RELATIONS  BOARD. 
C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  758  F.  2d 
1145. 

No.  85-715.  MOORE  v.  LAVICKY.  C.  A.  10th  Cir.  Certiorari 
denied.  Reported  below:  758  F.  2d  468. 

No.  85-729.  BRONGER  ET  AL.  v.  OFFICE  OF  PERSONNEL  MAN- 
AGEMENT. C.  A.  Fed.  Cir.  Certiorari  denied.  Reported 
below:  769  F.  2d  756. 

No.  85-742.  JEPPESEN  &  Co.  v.  BROCKLESBY  ET  AL.  C.  A. 
9th  Cir.  Certiorari  denied.  Reported  below:  767  F.  2d  1288. 

No.  85-747.     TIMBERLAKE  v.  UNITED  STATES;  and 
No.  85-5473.      ENGELHART  v.  UNITED  STATES.      C.  A.   10th 
Cir.     Certiorari  denied.     Reported  below:  767  F.  2d  1479. 

No.  85-756.  ADAMS  u  MC!LHANY.  C.  A.  5th  Cir.  Certiorari 
denied.  Reported  below:  764  F.  2d  294. 

No.  85-805.  VIZBARAS,  INDIVIDUALLY  AND  AS  PERSONAL 
REPRESENTATIVE  OF  THE  ESTATE  OF  VIZBARAS,  ET  ux.  v. 
PRIEBER  ET  AL.  C.  A.  4th  Cir.  Certiorari  denied.  Reported 
below:  761  F.  2d  1013. 

No.  85-825.  DAY  v.  SOUTH  PARK  INDEPENDENT  SCHOOL  DIS- 
TRICT. C.  A.  5th  Cir.  Certiorari  denied.  Reported  below:  768 
F.  2d  696. 

No.  85-858.  DE  NARDO  v.  COOK  ET  AL.  C.  A.  9th  Cir.  Cer- 
tiorari denied.  Reported  below:  772  F.  2d  911. 


1102  OCTOBER  TERM,  1985 

January  27,  1986  474  U.  S. 

No.  85-868.  HURWITZ  v.  TEXAS.  Ct.  Grim.  App.  Tex.  Cer- 
tiorari  denied.  Reported  below:  700  S.  W.  2d  919. 

No.  85-877.  SWAN  v.  TEXAS.  Ct.  App.  Tex.,  llth  Sup.  Jud. 
Dist.  Certiorari  denied. 

No.  85-883.  PARK,  DBA  ACTION  REAL  ESTATE  v.  EL  PASO 
BOARD  OF  REALTORS  ET  AL.  C.  A.  5th  Cir.  Certiorari  denied. 
Reported  below:  764  F.  2d  1053. 

No.  85-895.  RATEPAYERS  FIGHT  BACK  v.  MIDDLE  SOUTH  EN- 
ERGY, INC.,  ET  AL.  C.  A.  8th  Cir.  Certiorari  denied.  Re- 
ported below:  772  F.  2d  404. 

No.  85-896.  JOHNSON  v.  LINDEN  SHORE  DISTRICT.  Sup.  Ct. 
Conn.  Certiorari  denied.  Reported  below:  197  Conn.  803,  495 
A.  2d  282. 

No.  85-918.  MOTHER  GOOSE  NURSERY  SCHOOLS,  INC.  v.  SEN- 
DAK,  INDIVIDUALLY  AND  AS  FORMER  ATTORNEY  GENERAL  OF  IN- 
DIANA. C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  770 
F.  2d  668. 

No.  85-925.  CHRISTENSEN  v.  EQUITABLE  LIFE  ASSURANCE 
SOCIETY  OF  THE  UNITED  STATES.  C.  A.  7th  Cir.  Certiorari 
denied.  Reported  below:  767  F.  2d  340. 

No.  85-928.  INSURANCE  COMPANY  OF  NORTH  AMERICA  ET 
AL.  v.  PUERTO  Rico  MARINE  MANAGEMENT,  INC.  C.  A.  1st  Cir. 
Certiorari  denied.  Reported  below:  768  F.  2d  470. 

No.  85-934.  SHOCKLEY  v.  Cox  ENTERPRISES,  INC.,  ET  AL. 
C.  A.  llth  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d 
174. 

No.  85-936.  MORAN  v.  UNITED  STATES.  C.  A.  9th  Cir.  Cer- 
tiorari denied.  Reported  below:  759  F.  2d  777. 

No.  85-941.  JONES  ET  AL.  ,  INDIVIDUALLY  AND  AS  CO-ADMIN- 
ISTRATORS FOR  THE  ESTATE  OF  CLARK  v.  WELLS,  SHERIFF  OF 
MARION  COUNTY,  ET  AL.  C.  A.  7th  Cir.  Certiorari  denied. 
Reported  below:  776  F.  2d  1049. 

No.  85-945.  OGLALA  Sioux  TRIBE  OF  THE  PINE  RIDGE 
INDIAN  RESERVATION  v.  SOUTH  DAKOTA  ET  AL.  C.  A.  8th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  730. 


ORDERS  1103 

474  U.  S.  January  27,  1986 

No.  85-948.  KOSCOT  INTERPLANETARY,  INC.  v.  BEACHLEY 
INVESTMENTS,  N.  V.,  ET  AL.  C.  A.  llth  Cir.  Certiorari  de- 
nied. Reported  below:  774  F.  2d  1178. 

No.  85-952.  GRASON  ELECTRIC  Co.  ET  AL.  v.  SACRAMENTO 
MUNICIPAL  UTILITY  DISTRICT.  C.  A.  9th  Cir.  Certiorari  de- 
nied. Reported  below:  770  P.  2d  833. 

No.  85-5242.  MUHAMMAD  v.  SEMICOLE  ALLIED  VAN  LINES 
ET  AL.  C.  A.  3d  Cir.  Certiorari  denied.  Reported  below:  760 
F.  2d  259. 

No.  85-5552.  HAWKINS  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  1482. 

No.  85-5626.  HAMM  v.  PARKER,  WARDEN.  C.  A.  llth  Cir. 
Certiorari  denied. 

No.  85-5634.  BERNARD  v.  BERNARD  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied. 

No.  85-5635.  HAUPTMANN  v.  WILENTZ  ET  AL.  C.  A.  3d  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  1070. 

No.  85-5649.  WAGGONER  v.  UNITED  STATES.  C.  A.  5th  Cir. 
Certiorari  denied.  Reported  below:  769  F.  2d  253. 

No.  85-5681.  OGBERAHA  u  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  771  F.  2d  655. 

No.  85-5683.  ROBINSON  v.  UNITED  STATES.  C.  A.  4th  Cir. 
Certiorari  denied.  Reported  below:  770  F.  2d  413. 

No.  85-5733.  STEWART,  AKA  WHITE  v.  UNITED  STATES. 
C.  A.  9th  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d 
825. 

No.  85-5750.  RHODES  v.  UNITED  STATES  DEPARTMENT  OF 
THE  INTERIOR.  C.  A.  Fed.  Cir.  Certiorari  denied.  Reported 
below:  770  F.  2d  182. 

No.  85-5890.  BAIG  v.  UNITED  STATES.  C.  A.  4th  Cir.  Cer- 
tiorari denied.  Reported  below:  729  F.  2d  1455. 

No.  85-5891.  ANTONELLI  v.  ILLINOIS.  Sup.  Ct.  111.  Certio- 
rari denied.  Reported  below:  108  111.  2d  573. 

No.  85-5892.  MOYER  v.  DISTRICT  DIRECTOR  OF  THE  INTER- 
NAL REVENUE  SERVICE.  C.  A.  3d  Cir.  Certiorari  denied.  Re- 
ported below:  770  F.  2d  1073. 


1104  OCTOBER  TERM,  1985 

January  27,  1986  474  U.  S. 

No.  85-5893.  NiCKENS  v.  MISSISSIPPI.  Sup.  Ct.  Miss.  Cer- 
tiorari  denied.  Reported  below:  477  So.  2d  946. 

No.  85-5894.  TRIPLETT  v.  BOWEN,  SECRETARY  OF  HEALTH 
AND  HUMAN  SERVICES.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  767  F.  2d  210. 

No.  85-5895.  MICKENS  v.  UNITED  STATES  ET  AL.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  760  F.  2d  539. 

No.  85-5896.  RUBIN  v.  BOARD  OF  GOVERNORS  OF  STATE  COL- 
LEGES AND  UNIVERSITIES  (WESTERN  ILLINOIS  UNIVERSITY). 
C.  A.  7th  Cir.  Certiorari  denied. 

No.  85-5897.  REID  v.  UNITED  STATES  ET  AL.  C.  A.  Fed. 
Cir.  Certiorari  denied.  Reported  below:  776  F.  2d  1063. 

No.  85-5898.  ZURICA  v.  UNITED  STATES.  C.  A.  2d  Cir. 
Certiorari  denied.  Reported  below:  779  F.  2d  35. 

No.  85-5899.  TRICHELL  v.  UNITED  STATES.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  774  F.  2d  1175. 

No.  85-5903.  BERNARD  v.  WARDEN  ET  AL.  C.  A.  9th  Cir. 
Certiorari  denied.  Reported  below:  765  F.  2d  148. 

No.  85-5904.  DARWIN  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  Reported  below:  775  F.  2d  302. 

No.  85-5905.  LEEK  u  UNITED  STATES.  Ct.  App.  D.  C. 
Certiorari  denied. 

No.  85-5910.  PIERCE  v.  UNITED  MINE  WORKERS  OF  AMERICA 
WELFARE  AND  RETIREMENT  FUND  FOR  1950  AND  1974  ET  AL. 
C.  A.  6th  Cir.  Certiorari  denied.  Reported  below:  770  F.  2d 
449. 

No.  85-5916.  SMITH  v.  NEVADA.  Sup.  Ct.  Nev.  Certiorari 
denied.  Reported  below:  101  Nev.  965. 

No.  85-5941.  HANRAHAN  u  WELBORN,  WARDEN,  ET  AL. 
C.  A.  7th  Cir.  Certiorari  denied.  Reported  below:  774  F. 
2d  1167. 

No.  85-5942.  COTTON  v.  FEDERAL  LAND  BANK  OF  COLUMBIA. 
Sup.  Ct.  Ga.  Certiorari  denied. 


ORDERS  1105 

474  U.  S.  January  27,  1986 

No.  85-5956.  LAIIGO  v.  UNITED  STATES.  C.  A.  10th  Cir. 
Certiorari  denied.  Reported  below:  775  F.  2d  1099. 

No.  85-5959.  WHAM  v.  UNITED  STATES  ET  AL.  C.  A.  4th 
Cir.  Certiorari  denied.  Reported  below:  770  F.  2d  162. 

No.  85-5963.  CALVER  v.  OWNERS  OF  RIDGECREST  MOBILE 
HOME  PARK  ET  AL.  C.  A.  5th  Cir.  Certiorari  denied.  Re- 
ported below:  775  F.  2d  299. 

No.  85-6006.  LEPISCOPO  v.  YORK.  C.  A.  10th  Cir.  Certio- 
rari denied. 

No.  85-6049.  GALLENTINE  v.  UNITED  STATES  ET  AL.  C.  A. 
10th  Cir.  Certiorari  denied. 

No.  85-429.     EXXON  CORP.  v.  UNITED  STATES  ET  AL.; 

No.  85-430.  MARATHON  PETROLEUM  Co.  ET  AL.  v.  UNITED 
STATES  ET  AL.; 

No.  85-432.  AIR  TRANSPORT  ASSOCIATION  OF  AMERICA  ET 
AL.  v.  UNITED  STATES  ET  AL.; 

No.  85-440.  PHILADELPHIA  ELECTRIC  Co.  v.  UNITED  STATES 
ET  AL.;  and 

No.  85-444.  NATIONAL  FREIGHT,  INC.,  ET  AL.  v.  UNITED 
STATES  ET  AL.  Temp.  Emerg.  Ct.  App.  Motion  of  Chamber  of 
Commerce  of  the  United  States  for  leave  to  file  a  brief  as  amicus 
curiae  in  No.  85-429  granted.  Motion  of  American  Petroleum  In- 
stitute for  leave  to  file  a  brief  as  amicus  curiae  in  Nos.  85-429  and 
85-430  granted.  Certiorari  denied.  Reported  below:  773  F.  2d 
1240. 

No.  85-720.  CLEAR  PINE  MOULDINGS,  INC.  v.  NATIONAL 
LABOR  RELATIONS  BOARD.  C.  A.  9th  Cir.  Certiorari  denied. 
JUSTICE  REHNQUIST  took  no  part  in  the  consideration  or  decision 
of  this  petition.  Reported  below:  765  F.  2d  148. 

No.  85-794.  PREUIT  &  MAULDIN  ET  AL.  v.  JONES.  C.  A.  llth 
Cir.  Certiorari  denied.  Reported  below:  763  F.  2d  1250. 

JUSTICE  WHITE,  dissenting. 

In  Wilson  v.  Garcia,  471  U.  S.  261  (1985),  we  held  that  an  ac- 
tion under  42  U.  S.  C.  §  1983  should  be  considered  a  personal  in- 
jury action  for  purposes  of  borrowing  an  appropriate  state  statute 
of  limitations.  The  present  case  presents  the  question  of  what  to 


1106  OCTOBER  TERM,  1985 

WHITE,  J.,  dissenting  474  U.  S. 

do  when  more  than  one  state  statute  of  limitations  applies  to  per- 
sonal injury  actions. 

Respondent  in  this  case  is  an  Alabama  farmer  who  brought  a 
§  1983  action  against  petitioners  for  allegedly  violating  his  Four- 
teenth Amendment  due  process  rights  by  causing  his  equipment  to 
be  seized  pursuant  to  prejudgment  attachment  writs  that  petition- 
ers obtained  without  notice  or  a  hearing.  The  only  significant 
issue  on  appeal  was  the  appropriate  statute  of  limitations  to  bor- 
row from  the  Alabama  Code.  763  F.  2d  1250  (CA11  1985).  The 
Eleventh  Circuit  explained  that  its  task  of  applying  Wilson  v. 
Garcia,  supra,  was  complicated  by  the  fact  that  Alabama  has  not 
one  but  two  personal  injury  statutes  of  limitations.  Alabama 
Code  §6-2-34(1)  (1975)  governs  actions  for  "any  trespass  to 
person  or  liberty,  such  as  false  imprisonment  or  assault  and 
battery,"  and  has  been  interpreted  by  the  Alabama  courts  as 
applying  to  actions  for  trespass.  Alabama  Code  §  6-2— 39(a)(5) 
(1975)  governs  "[a]ctions  for  any  injury  to  the  person  or  rights  of 
another  not  arising  from  contract  and  not  specifically  enumerated 
in  this  section,"  and  has  been  interpreted  by  the  Alabama  courts 
as  applying  to  actions  for  trespass  on  the  case.  The  Eleventh 
Circuit  resolved  its  seeming  dilemma  in  applying  Wilson  v.  Garcia 
by  reasoning  that  while  not  all  §  1983  actions  involve  trespass, 
trespass  is  "the  particular  type  of  wrong  that  was  most  paradig- 
matic, the  one  category  of  wrongs  that  the  legislators  [who 
enacted  §  1983]  intended  first  and  foremost  to  address."  763  F. 
2d,  at  1255.  Accordingly,  the  court  held  that  the  6-year  statute 
of  limitations  provided  by  §  6-2-34(1),  rather  than  the  then  1-year 
statute  of  limitations  provided  by  §  6-2-39(a)(5),  should  govern 
§  1983  actions  in  Alabama.1 

The  Eleventh  Circuit's  decision  in  this  case  conflicts  with  three 
en  bane  decisions  by  the  United  States  Court  of  Appeals  for  the 
Tenth  Circuit,  all  of  which  were  companion  cases  to  the  decision 
we  affirmed  in  Wilson  v.  Garcia,  supra.  In  Hamilton  v.  City  of 
Overland  Park,  Kansas,  730  F.  2d  613,  614  (1984)  (en  bane),  cert, 
denied,  471  U.  S.  1052  (1985),  the  Tenth  Circuit  rejected,  for 
§  1983  purposes,  use  of  the  1-year  Kansas  statute  of  limitations 
governing  "  '[a]n  action  for  assault,  battery,  malicious  prosecution, 
or  false  imprisonment/"  and  instead  chose  the  2-year  limitations 

Section  6-2-39(a)(5)  has  been  recodified  as  §6-2-38(1)  (Supp.  1985)  and 
now  provides  a  2-year  statute  of  limitations,  pursuant  to  an  amendment  effec- 
tive January  9,  1985. 


ORDERS  1107 

1105  WHITE,  J.,  dissenting 

period  for  "  *[a]n  action  for  injury  to  the  rights  of  another,  not  aris- 
ing on  contract,  and  not  herein  enumerated.'"  In  Mismash  v. 
Murray  City,  730  F.  2d  1366,  1367  (1984)  (en  bane),  cert,  denied, 
471  U.  S.  1052  (1985),  the  Tenth  Circuit  similarly  rejected  use  of 
the  1-year  Utah  statute  of  limitations  governing  "  *[a]n  action  for 
libel,  slander,  assault,  battery,  false  imprisonment  or  seduction,'" 
and,  in  the  absence  of  an  express  Utah  statute  of  limitations  gov- 
erning actions  for  injury  to  the  rights  of  another,  opted  for  the 
4-year  limitations  period  for  "  *[a]n  action  for  relief  not  otherwise 
provided  by  law.'"  Finally,  in  McKay  v.  Hammock,  730  F.  2d 
1367,  1370  (1984)  (en  bane),  a  case  in  which  certiorari  was  not 
sought,  the  Tenth  Circuit  noted  that  Colorado  had  distinct  stat- 
utes of  limitations  for  actions  for  trespass  (one  year)  and  trespass 
on  the  case  (six  years),  and,  finding  the  distinction  between  tres- 
pass and  trespass  on  the  case  irrelevant  to  §  1983,  opted  instead  to 
use  the  residuary  3-year  period  for  "  '[a]U  other  actions  of  every 
kind  for  which  no  other  period  of  limitation  is  provided  by  law.'" 

As  the  foregoing  cases  demonstrate,  the  Tenth  Circuit  finds  it 
inappropriate  to  borrow  for  §  1983  purposes  a  statute  of  limitations 
governing  common-law  trespasses,  preferring  instead  to  look  for  a 
statute  more  compatible  with  its  characterization  of  a  §  1983  action 
as  "in  essence  an  action  for  injury  to  personal  rights."  Garcia  v. 
Wilson,  731  F.  2d  640,  651  (1984),  aff'd,  471  U.  S.  261  (1985). 
The  conflict  between  the  Tenth  and  Eleventh  Circuits  is  evidenced 
with  particular  clarity  in  Hamilton,  supra,  where  the  statutes  of 
limitations  chosen  and  rejected  are  virtual  mirror  images  of  the 
statutes  of  limitations  chosen  and  rejected  in  this  case. 

The  conflict  regarding  the  appropriate  criteria  for  choosing  a 
statute  of  limitations  for  §  1983  actions  is  not  limited  to  the  Tenth 
and  Eleventh  Circuits.  In  Gates  v.  Spinks,  771  F.  2d  916  (1985), 
the  Fifth  Circuit,  expressly  following  the  Eleventh  Circuit's  deci- 
sion in  this  case,  rejected  a  6-year  Mississippi  residuary  statute  of 
limitations  which  governs  negligence  and  strict-liability  personal 
injury  actions  in  that  State,  and  instead  decided  that  §  1983  cases 
should  be  governed  by  the  1-year  limitations  period  governing 
"most,  if  not  all,  common  law  intentional  torts."  Id.,  at  919. 
Gates  v.  Spinks  is  worth  noting,  not  only  because  it  is  clearly 
inconsistent  with  the  Tenth  Circuit's  decision  in  Mismash  v.  Mur- 
ray City,  supra,  but  also  because  it  highlights  an  effect  of  follow- 
ing the  Eleventh  Circuit's  decision  in  this  case  which  is  not  obvi- 
ous from  the  present  decision:  The  §  1983  statute  of  limitations  will 


1108  OCTOBER  TERM,  1985 

WHITE,  J.,  dissenting  474  U.  S. 

as  a  rule  be  shorter  if  based  on  a  statute  of  limitations  governing 
intentional  torts  than  it  -would  if  based  on  a  more  general  statute 
of  limitations  governing  other  personal  injury  actions.2 

It  will  not  do  to  argue,  as  respondent  does  in  his  Brief  in  Oppo- 
sition 5-8,  that  no  conflict  is  possible  because  each  state  statutory 
scheme  is  sui  generis.  It  is  conflicting  principles,  not  variations 
in  state  statutory  schemes,  that  have  determined  the  statutes  of 
limitations  chosen  for  §  1983  actions  in  the  Tenth  Circuit  on  the 
one  hand  and  the  Fifth  and  Eleventh  Circuits  on  the  other. 

The  conflict  between  the  Circuits  presented  by  this  case  is  not 
likely  to  disappear  without  guidance  from  this  Court.3  While  the 
Tenth  Circuit's  characterization  of  a  §  1983  action  as  one  for  injury 
to  personal  rights  is  arguably  somewhat  different  from  the  per- 
sonal injury  characterization  we  adopted  in  Wilson  v.  Garcia,  471 
U.  S.  261  (1985),  it  seems  doubtful  that  the  Tenth  Circuit  will  soon 
overrule  its  en  bane  decisions  in  Hamilton,  supra,  and  Mismash, 
supra,  in  view  of  the  fact  that  we  denied  certiorari  in  those  cases 
after  Wilson  v.  Garcia  was  decided.  Had  we  considered  those 
decisions  inconsistent  with  Wilson,  our  normal  course  would  have 
been  to  grant  certiorari  in  order  to  vacate  the  decisions  below  and 
remand  for  reconsideration  in  light  of  Wilson.  Since  we  did  not 
see  fit  to  call  for  the  Tenth  Circuit  to  reconsider  those  decisions,  it 
is  predictable  that  it  will  adhere  to  them,  notwithstanding  the  con- 
flicting decisions  by  the  Eleventh  and  Fifth  Circuits. 

It  is  clear  to  me  that  the  Court  should  provide  further  guidance 
to  the  lower  courts  on  the  issue  here  presented,  and  I  see  no  bene- 
fit in  delaying  its  resolution.  While  I  understand  the  Court's  re- 


2  The  following  is  a  sampling,  which  does  not  purport  to  be  exhaustive, 
of  statutes  of  limitations  akin  to  those  at  issue  in  the  present  case.  For 
each  State,  the  first,  longer  statute  of  limitations  governs  actions  described 
in  language  virtually  identical  to  Ala.  Code  §  6-2-39(a)(5)  (1975),  and  the  sec- 
ond, shorter  statute  of  limitations  governs  all  of  the  following  intentional 
torts:  libel,  slander,  assault,  battery,  and  false  imprisonment.  Minn.  Stat. 
§§541.05  (6  years),  541.07  (2  years)  (Supp.  1985);  Mo.  Rev.  Stat.  §§516.120 
(5  years),  516.140  (2  years)  (1978);  N.  C.  Gen.  Stat.  §§1-52(5)  (3  years), 
1-54(3)  (1  year)  (1983);  Okla.  Stat.,  Tit.  12,  §§  95  (Third)  (2  years),  95  (Fourth) 
(1  year)  (1981);  S.  C.  Code  §  15-3-530(5)  (6  years)  (Supp.  1985),  §  15-3-550(1) 
(2  years)  (1976). 

8  Uniformity  could  also  be  achieved,  of  course,  by  congressional  enactment 
of  a  uniform  period  of  limitations  for  §  1983  actions.  That  course  has  much  to 
commend  it,  but  it  is  unacceptable,  in  my  view,  to  delay  resolving  a  conflict 
among  the  Circuits  in  the  hopes  that  Congress  will  intervene. 


ORDERS  1109 

474  U.  S.  January  27,  1986 

luctance  to  return  so  quickly  to  the  issue  that  we  had  hoped  to  lay 
to  rest  in  Wilson  v.  Garcia,  supra,  I  must  respectfully  dissent. 

No.  85-878.  PAN  AMERICAN  WORLD  AIRWAYS,  INC.,  ET  AL.  v. 
COOK  ET  AL.  C.  A.  2d  Cir.  Certiorari  denied.  Reported 
below:  771  F.  2d  635. 

JUSTICE  WHITE,  with  whom  JUSTICE  O'CONNOR  joins, 
dissenting. 

This  petition  presents  the  issue  whether  an  integrated  employee 
seniority  list  that  was  adopted  by  an  airline  pursuant  to  a  merger 
plan  that  the  Civil  Aeronautics  Board  (CAB)  approved  as  "fair 
and  equitable"  can  be  attacked  collaterally  by  the  airline's  em- 
ployees in  an  action  under  the  Age  Discrimination  in  Employment 
Act  (ADEA),  29  U.  S.  C.  §621  et  seq.  The  United  States  Court 
of  Appeals  for  the  Second  Circuit  held  that  respondents  are  en- 
titled to  bring  such  a  collateral  ADEA  action.  771  F.  2d  635 
(1985).  This  decision  squarely  conflicts  with  Carey  v.  O'Donnell, 
165  U.  S.  App.  D.  C.  46,  506  F.  2d  107  (1974),  cert,  denied,  419 
U.  S.  1110  (1975).  Carey  holds  that  §1006  of  the  Federal  Avia- 
tion Act,  49  U.  S.  C.  App.  §  1486,  which  vests  exclusive  juris- 
diction in  the  United  States  Court  of  Appeals  for  the  District 
of  Columbia  Circuit  to  review  CAB  orders,  precludes  a  collateral 
ADEA  action  of  the  type  allowed  by  the  Second  Circuit  in  the 
present  case.  I  would  grant  certiorari  to  resolve  this  conflict. 

No.  85-888.  ADKINS  ET  AL.  v.  TIMES-WORLD  CORP.  ET  AL. 
C.  A.  4th  Cir.  Certiorari  denied.  Reported  below:  771  F.  2d 
829. 

JUSTICE  WHITE,  with  whom  JUSTICE  BBENNAN  joins,  dis- 
senting. 

The  United  States  Court  of  Appeals  for  the  Fourth  Circuit  held 
in  this  case  that  it  had  jurisdiction  under  28  U.  S.  C.  §  1292(a)(l) 
to  hear  respondents'  appeal  of  a  District  Court  order  staying 
arbitration  proceedings  to  which  respondents  were  parties.  771 
F.  2d  829  (1985).  This  holding  conflicts  with  the  decisions  in 
Lummus  Co.  v.  Commonwealth  Oil  Refining  Co.,  297  F.  2d  80 
(CA2  1961),  cert,  denied,  368  U.  S.  986  (1962),  and  Diematic  Mfg. 
Corp.  v.  Packaging  Industries,  Inc.,  516  F.  2d  975  (CA2),  cert, 
denied,  423  U.  S.  913  (1975).  I  would  grant  certiorari  to  resolve 
this  conflict. 


1110  OCTOBER  TERM,  1985 

January  27,  1986  474  U.  S. 

No.  85-5360.  DARWIN  v.  UNITED  STATES.  C.  A.  llth  Cir. 
Certiorari  denied.  JUSTICE  BRENNAN,  JUSTICE  MARSHALL,  and 
JUSTICE  BLACKMUN  would  grant  certiorari.  Reported  below:  757 
F.  2d  1193. 

No.  85-5365.  KHALIQ  v.  BROWN  ET  AL.  C.  A.  3d  Cir.  Cer- 
tiorari denied.  JUSTICE  WHITE  would  grant  certiorari. 

No.  85-5533  (A-521).  WILLIAMS  v.  TEXAS.  Ct.  Crim.  App. 
Tex.  Application  for  stay  of  execution  of  sentence  of  death  sched- 
uled for  February  18,  1986,  presented  to  JUSTICE  WHITE,  and  by 
him  referred  to  the  Court,  denied.  Certiorari  denied. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentence  in  this  case. 

No.  85-5687.     CANNON  v.  TEXAS.     Ct.  Crim.  App.  Tex.; 
No.  85-5825.     NETHERY  u  TEXAS.     Ct.  Crim.  App.  Tex.;  and 
No.  85-5946.     PEREZ  v.  ILLINOIS.      Sup.  Ct.  111.      Certiorari 
denied.     Reported  below:  No.  85-5687,  691  S.  W.  2d  664;  No.  85- 
5825,  692  S.  W.  2d  686;  No.  85-5946,  108  111.  2d  70,  483  N.  E.  2d 
250. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  certiorari  and  vacate  the  death 
sentences  in  these  cases. 

No.  85-5776.  BRACY  v.  ARIZONA.  Sup.  Ct.  Ariz.  Certiorari 
denied.  Reported  below:  145  Ariz.  520,  703  P.  2d  464. 

JUSTICE  BRENNAN,  dissenting. 

Adhering  to  my  view  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 


ORDERS  Ull 

474  U.  S.  January  27,  1986 

227  (1976),  I  would  grant  certiorari  and  vacate  the  death  sentence 
in  this  case. 

JUSTICE  MARSHALL,  dissenting. 

Petitioner  William  Bracy  was  convicted  of  two  murders  and  sen- 
tenced to  death.  He  claims  that  the  state  trial  court  improperly 
barred  him  from  pursuing,  in  his  cross-examination  of  a  prosecu- 
tion witness,  the  only  line  of  questioning  that  could  have  revealed 
that  witness'  motivation  to  shade  his  testimony  in  favor  of  the 
prosecution.  He  argues  that  he  was  thus  denied  his  Sixth 
Amendment  right  to  confront  the  State's  witnesses  against  him. 
Davis  v.  Alaska,  415  U.  S.  308  (1974).  I  believe  that  petitioner's 
claim  may  be  substantial,  requiring  that  his  conviction  be  vacated. 

In  the  pending  case  of  Delaware  v.  Van  Arsdall  (No.  84-1279), 
cert,  granted,  473  U.  S.  923  (1985),  this  Court  is  to  decide 
whether  an  absolute  denial  of  cross-examination  of  a  prosecution 
witness  concerning  potential  bias  can  ever  be  harmless  error. 
The  Court  denies  certiorari  in  this  case  without  even  waiting  to 
consider  what  light  the  Van  Arsdall  case  will  shed  on  the  issues 
here.  Because  I  consider  such  haste  inappropriate,  especially 
when  a  man's  life  is  hanging  in  the  balance,  I  dissent  from  the 
denial  of  certiorari. 

Rehearing  Denied 

No.  84-5630.  THOMAS  v.  ARN,  SUPERINTENDENT,  OHIO  RE- 
FORMATORY FOR  WOMEN,  ante,  p.  140; 

No.  84-6270,  GREEN  ET  AL.  v.  MANSOUR,  DIRECTOR,  MICHI- 
GAN DEPARTMENT  OF  SOCIAL  SERVICES,  ante,  p.  64; 

No.  84-6910.  ETHERIDGE  v.  MITCHELL,  SUPERINTENDENT, 
VIRGINIA  STATE  PENITENTIARY,  ante,  p.  1019; 

No.  85-394.     IN  RE  TRACEY,  ante,  p.  899; 

No.  85-503.     SPARROW  v.  HAJIMAHOLIS  ET  AL.,  ante,  p.  1006; 

No.  85-527.  FAITH  CENTER,  INC.  v.  FEDERAL  COMMUNICA- 
TIONS COMMISSION  ET  AL.,  ante,  p.  1006; 

No.  85-600.  SLOAN  ET  AL.  v.  HICKS,  TRUSTEE  IN  BANK- 
RUPTCY OF  BECKNELL  &  GRACE  COAL  Co.,  INC.,  BANKRUPT, 
ante,  p.  1006; 

No.  85-672.     COHRAN  v.  CARLIN  ET  AL.,  ante,  p.  1033;  and 

No.  85-5573.  TURNER  v.  NORTH  CAROLINA  DEPARTMENT  OF 
HUMAN  RESOURCES,  DIVISION  OF  SERVICES  FOR  THE  BLIND,  ET 
AL.,  ante,  p.  1011.  Petitions  for  rehearing  denied. 


1112  OCTOBER  TERM,  1985 

January  27,  February  10,  13,  14,  1986       474  U.  S. 

No.  85-5583.  BURTON  v.  SARGENT,  WARDEN,  ante,  p.  1011; 
and 

No.  85-5584.  BURTON  v.  LOCKHART,  DIRECTOR,  ARKANSAS 
DEPARTMENT  OF  CORRECTION,  ante,  p.  1011.  Petitions  for 
rehearing  denied. 

No.  85-5382.  WALLACE  v.  UNITED  STATES,  ante,  p.  908.  Mo- 
tion for  leave  to  file  petition  for  rehearing  denied. 

FEBRUARY  10,  1986 

Miscellaneous  Order 

No.  A-593.  ROOK  v.  RICE,  WARDEN.  Application  for  stay  of 
execution  of  sentence  of  death  scheduled  for  Friday,  February  14, 
1986,  presented  to  THE  CHIEF  JUSTICE,  and  by  him  referred  to 
the  Court,  is  granted  pending  the  timely  filing  and  disposition  by 
this  Court  of  a  petition  for  writ  of  certiorari.  Should  the  petition 
for  writ  of  certiorari  be  denied,  this  stay  terminates  automatically. 
In  the  event  the  petition  for  writ  of  certiorari  is  granted,  this  stay 
shall  continue  pending  the  sending  down  of  the  judgment  of  this 
Court. 

FEBRUARY  13,  1986 
Dismissal  Under  Rule  53 

No.  85-5989.  HORAN  v.  UNITED  STATES.  C.  A.  3d  Cir. 
Certiorari  dismissed  under  this  Court's  Rule  53.  Reported  below: 
774  F.  2d  1153. 

FEBRUARY  14,  1986 
Dismissal  Under  Rule  53 

No.  85-6119.  IN  RE  O'DELL.  Petition  for  writ  of  mandamus 
dismissed  under  this  Court's  Rule  53. 

Miscellaneous  Order 

No.  A-622.  KENNEDY  v.  WAINWRIGHT,  SECRETARY,  FLORIDA 
DEPARTMENT  OF  CORRECTIONS,  ET  AL.  Application  for  stay  of 
execution  of  sentence  of  death  scheduled  for  Tuesday,  February 
18,  1986,  presented  to  JUSTICE  POWELL,  and  by  him  referred  to 
the  Court,  is  granted  pending  the  timely  filing  and  disposition  by 
this  Court  of  a  petition  for  writ  of  certiorari.  Should  the  petition 
for  writ  of  certiorari  be  denied,  this  stay  terminates  automatically. 
In  the  event  the  petition  for  writ  of  certiorari  is  granted,  this  stay 
shall  continue  pending  the  issuance  of  the  mandate  of  this  Court. 


ORDERS  1113 

474  U.  S.  February  14, 21, 1986 

JUSTICE  O'CONNOR  took  no  part  in  the  consideration  or  decision  of 
this  application. 

FEBRUARY  21, 1986 

Dismissal  Under  Rule  53 

No.  85-995.  WESTERN  UNION  INTERNATIONAL,  INC.,  ET  AL. 
u  AMATO  ET  AL.  C,  A.  2d  Cir.  Certiorari  dismissed  under  this 
Court's  Rule  53.  Reported  below:  773  F.  2d  1402. 

Certiorari  Denied 

No.  85-6372  (A-609).  MOORE  u  TEXAS.  Ct.  Grim.  App.  Tex. 
Application  for  stay  of  execution  of  sentence  of  death,  presented 
to  JUSTICE  WHITE,  and  by  him  referred  to  the  Court,  denied. 
JUSTICE  BLACKMUN  and  JUSTICE  STEVENS  would  grant  the  appli- 
cation for  stay.  Certiorari  denied.  Reported  below:  700  S.  W. 
2d  193. 

JUSTICE  BRENNAN  and  JUSTICE  MARSHALL,  dissenting. 

Adhering  to  our  views  that  the  death  penalty  is  in  all  circum- 
stances cruel  and  unusual  punishment  prohibited  by  the  Eighth 
and  Fourteenth  Amendments,  Gregg  v.  Georgia,  428  U.  S.  153, 
227,  231  (1976),  we  would  grant  the  application  for  stay  and  the 
petition  for  writ  of  certiorari  and  would  vacate  the  death  sentence 
in  this  case. 


REPORTER'S  NOTE 

The  next  page  is  purposely  numbered  11,  Tte  numbers  between  1113 
and  1301  we  intentionally  omitted,  in  order  to  make  it  possible  to  publish 
Mimbers  opinions  with  j»rt  page  numbers,  thus  making  the 
official  citations  available  up  publication  of  the  preliminaty  prints  of 

11  1  v    i 

the  United  States  Eeports, 


OPINION  OF  INDIVIDUAL  JUSTICE 
IN  CHAMBERS 


REPUBLICAN  PARTY  OF  HAWAII  ET  AL.  v. 
MINK  ET  AL. 

ON  APPLICATION  FOR  STAY 
No.  A-428.     Decided  November  29,  1985 

An  application  by  the  Republican  Party  of  Hawaii  and  two  Honolulu  City 
Councilmen— who  had  been  recalled  from  their  offices  in  an  October  5, 
1985,  election,  and  who  sought  to  run  in  a  special  election  scheduled  for 
November  30  to  fill  the  vacancies  caused  by  the  recall— to  stay  the  Ha- 
waii Supreme  Court's  judgment  (or  to  enjoin  the  City  Clerk's  conduct) 
is  denied.  The  Hawaii  Supreme  Court's  judgment  construed  a  provision 
of  the  Honolulu  City  Charter  as  preventing  the  recalled  Councilmen 
from  appearing  on  the  ballot  and  ordered  the  City  Clerk  to  enforce  the 
Charter  provision  in  the  November  30  election.  It  was  almost  impossi- 
ble in  the  length  of  time  available  to  ascertain  whether  four  Justices  of 
this  Court  would  vote  to  note  probable  jurisdiction  of  an  appeal  from  the 
Hawaii  Supreme  Court's  decision,  or  whether  a  majority  of  this  Court 
would  be  likely  to  reverse  that  decision.  The  "stay  equities"  of  the  case 
and  the  usual  presumption  of  constitutionality  accorded  to  state  and  local 
laws  require  denial  of  the  application. 

JUSTICE  REHNQUIST,  Circuit  Justice. 

Applicants,  two  recalled  City  Councilmen  of  the  city  of 
Honolulu  and  the  Republican  Party  of  Hawaii,  ask  me  to  stay 
an  order  of  the  Supreme  Court  of  Hawaii,  or  to  affirmatively 
enjoin  the  conduct  of  respondent  Pua,  the  City  Clerk  of  the 
city  of  Honolulu.  They  claim  that  the  following  provision 
of  the  Honolulu  City  Charter  violates  the  United  States  Con- 
stitution as  interpreted  by  this  Court  in  Anderson  v.  Cele- 
brezze,  460  U.  S.  780  (1983): 

"No  person,  who  has  been  removed  from  his  elected  of- 
fice or  who  has  resigned  from  such  an  office  after  a  recall 

1301 


1302  OCTOBER  TERM,  1985 

Opinion  in  Chambers  474  U.  S. 

petition  directed  to  him  has  been  filed,  shall  be  eligible 
for  election  or  appointment  to  any  office  of  the  city 
within  two  years  after  his  removal  or  resignation." 

Applicants  Matsumoto  and  Paccaro  were  recalled  in  an  elec- 
tion held  October  5.  They  seek  to  run  in  a  special  election 
called  to  fill  the  vacancies  caused  by  the  recall  which  is  sched- 
uled for  tomorrow,  Saturday,  November  30.  The  stay  appli- 
cation was  presented  to  me  about  1  p.m.,  eastern  standard 
time,  today,  Friday,  November  29.  The  Court  of  Appeals 
for  the  Ninth  Circuit  concluded  that  the  City  Charter  provi- 
sion as  it  construed  it  was  unconstitutional,  but  the  Supreme 
Court  of  Hawaii  has  now  adopted  a  narrowing  construction, 
which  nonetheless  prevents  Matsumoto  and  Paccaro  from  ap- 
pearing on  the  ballot,  and  ordered  the  City  Clerk  to  enforce 
the  provision  in  tomorrow's  election. 

It  is  almost  impossible  in  the  length  of  time  available  to  me 
to  ascertain  whether  four  Justices  of  this  Court  would  vote  to 
note  probable  jurisdiction  of  an  appeal  from  the  decision  of 
the  Supreme  Court  of  Hawaii,  or  whether  a  majority  of  this 
Court  would  be  likely  to  reverse  the  decision  of  that  court. 
The  City  Charter  provision  as  interpreted  by  the  Supreme 
Court  of  Hawaii  is  not,  in  my  judgment,  clearly  unconstitu- 
tional under  our  decision  in  Anderson  v.  Celebrezze,  supra. 
Under  these  circumstances,  the  "stay  equities"  of  the  case 
and  the  usual  presumption  of  constitutionality  accorded  to 
state  and  local  laws  lead  me  to  deny  the  application. 


INDEX 

ABANDONMENT  OF  DEBTOR'S  PROPERTY  BY  TRUSTEE.     See 
Bankruptcy  Act. 

AIDERS  AND  ABETTORS  AS  SUBJECT  TO  DEATH  PENALTY.    See 
Constitutional  Law,  II. 

AID  TO  FAMILIES  WITH  DEPENDENT  CHILDREN.    See  Constitu- 
tional Law,  X. 

ALL  WRITS  ACT.     See  Witnesses. 

ARMY  CORPS  OF  ENGINEERS'  PERMIT  AUTHORITY.    See  Clean 
Water  Act. 

ARRESTS.     See  Constitutional  Law,  VII. 

ARSON.     See  Indictments. 

ARTICLE  III  JUDGES.     See  Constitutional  Law,  IV,  4. 

ASSISTANCE  OF  COUNSEL.     See  Constitutional  Law,  VIII. 

BANK  HOLDING  COMPANY  ACT  OF  1956.     See  also  Judgments. 

Definition  of  "banks"— Federal  Reserve  Board  regulation.  —Federal  Re- 
serve Board  exceeded  its  statutory  authority  in  adopting  a  regulation  that 
defined  "banks"  in  a  manner  contrary  to  §2(c)  of  Act,  which  defines  a 
"bank"  as  any  institution  that  "accepts  [demand]  deposits"  and  makes 
"commercial  loans."  Board  of  Governors,  FRS  v.  Dimension  Financial 
Corp.,  p.  361. 

BANKRUPTCY  ACT. 

Trustee's  abandonment  of  debtor's  property— State  health  or  safety 
laws— Pre-emption.— A  bankruptcy  trustee,  acting  pursuant  to  §  554(a)  of 
Act,  may  not  abandon  debtor's  property  in  contravention  of  state  public 
health  or  safety  laws,  such  as  New  Jersey  and  New  York  laws  under  which 
debtor  waste  oil  processor  had  been  ordered  to  clean  up  certain  contami- 
nated processing  sites  that  its  trustee  sought  to  abandon;  §  554(a)  does  not 
pre-empt  all  state  and  local  laws.  Midlantic  National  Bank  v.  New  Jersey 
Dept.  of  Environmental  Protection,  p.  494. 

CALIFORNIA.     See  Indians. 

CAPITAL  PUNISHMENT.     See  Constitutional  Law,  II, 

CIGARETTE  EXCISE  TAXES.     See  Indians. 

1303 


1304  INDEX 

CITATIONS  FOR  EMPLOYERS'  VIOLATIONS  OF  SAFETY  STAND- 
ARDS.    See  Occupational  Safety  and  Health  Act. 

CITY  ELECTIONS.     See  Stays. 

CIVIL  RIGHTS  ACT  OF  1871.     See  Constitutional  Law,  IV,  5,  6. 

CLEAN  WATER  ACT. 

Army  Corps  of  Engineers— Permit  authority— "Freshwater  wet- 
lands."— Army  Corps  of  Engineers  reasonably  interpreted  Act  as  requir- 
ing that  permits  be  obtained  from  Corps  before  discharging  dredged  or  fill 
materials  onto  "freshwater  wetlands"  adjacent  to  "waters  of  United 
States,"  and  a  narrow  reading  of  Corps'  regulatory  jurisdiction  was  not 
necessary  to  avoid  a  "taking"  problem  under  Fifth  Amendment.  United 
States  v.  Riverside  Bayview  Homes,  Inc.,  p.  121. 

COLLEGES.     See  Constitutional  Law,  IV,  1. 

"COMMERCIAL  LOANS"  BY  BANKS.     See  Bank  Holding  Company 
Act  of  1956. 

CONFESSIONS.       See    Constitutional    Law,    VII;    VIII,    1;    Habeas 
Corpus. 

CONFRONTATION  CLAUSE.     See  Constitutional  Law,  I. 

CONSTITUTIONAL  LAW.     See  also  Clean  Water  Act;  Prisons  and 
Prisoners. 

I.  Confrontation  of  Witnesses. 

State's  expert  witness— Inability  to  recall  basis  for  opinion.  — Where,  at 
respondent's  murder  trial  resulting  hi  his  conviction,  (1)  State's  expert 
witness  testified  that  in  his  opinion  a  hair,  which  was  similar  to  victim's 
hair  and  was  found  on  murder  weapon,  had  been  forcibly  removed,  (2)  ex- 
pert testified  on  both  direct  examination  and  cross-examination  that  he 
could  not  recall  what  method  he  had  used  in  reaching  his  "forcible  removal" 
conclusion,  (3)  defense's  expert  witness  testified  that  State's  expert  had 
previously  informed  him  of  method  used,  and  (4)  defense's  expert  then 
challenged  premise  of  such  method,  admission  of  opinion  of  State's  expert 
did  not  violate  respondent's  rights  under  Confrontation  Clause  of  Sixth 
Amendment  despite  expert's  inability  to  recall  basis  for  Ms  opinion.  Dela- 
ware v.  Fensterer,  p.  15. 

II.  Cruel  and  Unusual  Punishment. 

Death  penalty— Aiders  and  abettors.  —Either  jury  or  state  court  may 
make  factual  findings  necessary  to  enforce  Eighth  Amendment  rule  that 
death  sentence  may  not  be  imposed  on  one  who  aids  and  abets  a  felony  dur- 
ing which  a  murder  is  committed  but  does  not  himself  kill,  attempt  to  kill, 
or  intend  that  a  killing  occur  or  that  lethal  force  be  used;  where  necessary 
findings  were  not  made  in  state-court  proceedings,  federal  court,  in  habeas 


INDEX  1305 

CONSTITUTIONAL  LAW -Continued. 

corpus  proceeding,  should  take  steps  to  require  State's  judicial  system  to 

make  such  findings  in  first  instance.     Cabana  v.  Bullock,  p.  376. 

III.  Double  Jeopardy. 

1.  Conviction  of  multiple  counts  —Resentencing.  —Where  (1)  after  re- 
spondent was  convicted  in  a  Pennsylvania  court  of  multiple  counts  of  theft 
and  forgery,  he  was  sentenced  to  a  term  of  imprisonment  on  one  theft 
count  and  probation  on  one  forgery  count,  and  sentence  was  suspended  on 
remaining  counts,  and  (2)  appellate  court  held  that  statute  of  limitations 
barred  prosecution  of  several  theft  counts,  including  that  on  which  re- 
spondent had  been  sentenced,  Pennsylvania  Supreme  Court  erred  in  hold- 
ing that,  on  remand,  resentencing  on  remaining  counts  was  barred  by  Dou- 
ble Jeopardy  Clause.     Pennsylvania  v.  Goldhammer,  p.  28. 

2.  Kidnaping   and  murder— Separate  prosecutions   in  two   States.— 
Where,  in  connection  with  his  wife's  kidnaping  and  murder,  petitioner 
pleaded  guilty  to  murder  in  a  prosecution  in  Georgia,  -where  body  was 
found,  and  he  was  subsequently  convicted  of  murder  during  a  kidnaping  in 
a  prosecution  in  Alabama,  where  kidnaping  occurred,  under  dual  sover- 
eignty doctrine  Alabama  prosecution  was  not  barred  by  Double  Jeopardy 
Clause.     Heath  v.  Alabama,  p.  82. 

IV.  Due  Process. 

1.  Enrollment  in  university  program— Student's  dismissal  upon  failing 
examination.  —Where  (1)  respondent,  after  completing  4  years  of  a  6-year 
medical  program  at  University  of  Michigan,  was  dismissed  from  University 
when  he  failed  a  test  required  for  qualifying  for  final  2  years,  and  (2)  after 
unsuccessfully  seeking  readmission  and  an  opportunity  to  retake  examina- 
tion, respondent  brought  federal-court  action  alleging  a  right  to  retake 
examination  on  ground  that  his  dismissal  was  arbitrary  and  capricious  in 
violation  of  his  due  process  rights,  record  supported  finding  that  there  was 
no  violation  of  respondent's  due  process  rights,  even  assuming  that  he  had 
a  property  right  in  continued  enrollment.     Regents  of  University  of  Michi- 
gan v.  Ewing,  p.  214. 

2.  Exercise  of  Miranda  right  to  remain  silent— Prosecutor's  use  as  evi- 
dence of  sanity.  —Where  (1)  respondent,  after  receiving  Miranda  warn- 
ings, exercised  his  right  to  remain  silent  at  police  interrogations  following 
his  arrest  on  state  charges,  (2)  he  later  pleaded  not  guilty  by  reason  of 
insanity  but  was  convicted,  and  (3)  in  closing  argument,  prosecutor,  over 
defense  counsel's  objection,  reviewed  officer's  testimony  as  to  respondent's 
refusals  to  answer  questions  without  first  consulting  an  attorney,  and  sug- 
gested that  such  refusals  demonstrated  a  degree  of  comprehension  that 
was  inconsistent  with  insanity  claim,  prosecutor's  use  of  respondent's 
silence  as  evidence  of  sanity  violated  Due  Process  Clause.     Wainwright 
v.  Greenfield,  p.  284. 


1306  INDEX 

CONSTITUTIONAL  LAW— Continued. 

3.  Failure  to  declare  goods  to  Citstoms  —  Remission  of  forfeiture.— 
Where  (1)  Customs  seized  respondent's  car,  purchased  out  of  country, 
when  he  failed  to  report  it  upon  entering  country,  (2)  rather  than  waiting 
to  challenge  seizure  in  a  judicial  forfeiture  action  that  Government  might 
institute,  he  elected  to  petition  for  administrative  remission  of  forfeiture  of 
car,  and  (3)  Customs  did  not  respond  to  petition,  or  set  penalty,  until  36 
days  later,  such  delay  did  not  deprive  him  of  property  without  due  process. 
United  States  v.  Von  Neumann,  p.  242. 

4.  Federal  court  of  appeals'  rule— Waiver  of  appellate  review. — Due 
Process  Clause  of  Fifth  Amendment,  Article  III  of  Constitution,  and  Fed- 
eral Magistrates  Act  are  not  violated  by  a  federal  court  of  appeals'  rule  con- 
ditioning appeal,  when  taken  from  a  district  court  judgment  that  adopts  a 
magistrate's  recommendation,  upon  timely  filing  of  objections  to  magis- 
trate's report  with  district  court  identifying  issues  on  which  further  review 
is  desired,  at  least  when  rule  incorporates  notice  to  litigants  and  an  oppor- 
tunity to  seek  an  extension  of  time  for  filing  objections;  such  a  rule  is  a 
valid  exercise  of  court's  supervisory  power.     Thomas  v.  Arn,  p.  140. 

5.  Injury  to  jail  inmate— Official 's  negligence.— Due  Process  Clause  is 
not  implicated  by  a  state  official's  negligent  act  causing  unintended  loss  of 
or  injury  to  life,  liberty,  or  property;  thus,  a  jail  inmate  could  not  recover 
damages  in  an  action  under  42  U.  S.  C.  §  1983  against  a  sheriff's  deputy  for 
injuries  allegedly  sustained  when  inmate  slipped  on  a  pillow  negligently 
left  on  a  jail  stairway  by  deputy.     Daniels  v.  Williams,  p.  327. 

6.  Injury  to  prison  inmate— Officials'  negligence.  — Due  process  protec- 
tions, whether  procedural  or  substantive,  are  not  triggered  by  prison  offi- 
cials' lack  of  due  care;  thus,  petitioner  state  prison  inmate  could  not  recover 
damages  for  personal  injuries  in  an  action  under  42  U.  S.  C.  §  1983  against 
prison  officials  for  negligently  failing  to  protect  him  from  attack  by  a  fellow 
inmate  after  he  had  notified  officials  of  threatened  attack.      Davidson  v. 
Cannon,  p.  344. 

7.  State's  expert  uritness— Inability  to  recall  basis  for  opinion  — Where, 
at  respondent's  murder  trial  resulting  in  his  conviction,  (1)  State's  expert 
witness  testified  that  in  his  opinion  a  hair,  which  was  similar  to  victim's 
hair  and  was  found  on  murder  weapon,  had  been  forcibly  removed,  (2)  ex- 
pert testified  on  both  direct  examination  and  cross-examination  that  he 
could  not  recall  what  method  he  had  used  in  reaching  his  "forcible  removal" 
conclusion,  (3)  defense's  expert  witness  testified  that  State's  expert  had 
previously  informed  him  of  method  used,  and  (4)  defense's  expert  then 
challenged  premise  of  such  method,  prosecution's  foreknowledge  that  its 
expert  would  be  unable  to  give  basis  for  his  opinion  did  not  impose  an 
obligation  on  it,  as  a  matter  of  due  process,  to  refrain  from  introducing 
expert's  testimony.     Delaware  v.  Fensterer,  p.  15. 


INDEX  1307 

CONSTITUTIONAL,  LAW— Continued. 

V.  Equal  Protection  of  the  Laws. 

Grand  jury  selection— Racial  discrimination. — Where  (1)  state  trial 
court  refused  to  quash  respondent's  indictment  for  alleged  systematic 
exclusion  of  blacks  from  grand  jury  that  indicted  him,  (2)  he  was  convicted 
of  first-degree  murder,  and  (3)  after  unsuccessfully  pursuing  state-court 
relief  for  next  16  years,  he  obtained  federal  habeas  corpus  relief  on  basis 
of  his  equal  protection  challenge  to  grand  jury,  requirement  of  exhaustion 
of  state  remedies  was  satisfied  even  though  District  Court  required  parties 
to  present  supplemental  evidence,  where  such  evidence  did  not  funda- 
mentally alter  claim  already  considered  by  state  courts;  rule  requiring  re- 
versal of  conviction  was  reaffirmed  as  against  contentions  that  error  was 
harmless  and  that  conviction  after  a  fair  trial  purged  any  taint  attributable 
to  grand  jury  process.  Vasquez  v.  Hillery,  p.  254. 

VI.  Freedom  of  Religion. 

Visually  handicapped  persons  —Aid  to  student  at  Christian  college— Va- 
lidity of  state  statute.  —Extension  of  aid,  under  Washington  statute  for 
vocational  rehabilitation  assistance  to  visually  handicapped  persons,  to  fi- 
nance petitioner's  training  at  a  private  Christian  college  to  become  a  pas- 
tor, missionary,  or  youth  director,  would  not  advance  religion  in  violation 
of  Establishment  Clause.  Witters  v.  Washington  Dept.  of  Services  for 
Blind,  p.  481. 

VII.  Privilege  Against  Self-Incrimination. 

Confessions  —  Voluntariness. — Admission  of  petitioner's  confession — on 
theory  that,  even  assuming  his  arrest  was  illegal,  voluntariness  of  confes- 
sion was  test  of  admissibility,  and  he  did  not  claim  that  confession  was  not 
voluntary — was  improper;  a  finding  of  voluntariness  of  a  confession  for 
Fifth  Amendment  purposes  is  not  by  itself  sufficient  to  purge  taint  of  an 
illegal  arrest,  but  is  merely  a  threshold  requirement  for  Fourth  Amend- 
ment analysis.  Lanier  v.  South  Carolina,  p.  25. 

VIII.  Right  to  Counsel. 

1.  Accused's  incriminating  statements— Informant's  use  of  body  wire 
transmitter.— Sixth  Amendment  right  to  counsel  was  violated  by  admis- 
sion at  trial  of  incriminating  statements  made  by  respondent,  who  had  re- 
tained counsel,  to  his  codefendant  after  indictment  and  at  a  meeting  of  the 
two  to  plan  defense  strategy,  where,  unknown  to  respondent,  codefendant 
was  cooperating  with  police  and  wore  a  body  wire  transmitter  to  record 
meeting.     Maine  v.  Moulton,  p.  159. 

2.  Effectiveness  of  assistance — Plea-bargaining.  —  In  federal  habeas  cor- 
pus proceedings  alleging  that  petitioner's  plea-bargained  guilty  plea  in  a 
state  murder  and  theft  prosecution  was  involuntary  because  of  ineffective 
assistance  of  counsel  who  misinformed  him  that  he  would  be  eligible  for 


1308  INDEX 

CONSTITUTIONAL  LAW -Continued. 

parole  after  serving  one-third  of  his  prison  sentence,  whereas  under  state 
"second  offender"  law  he  was  required  to  serve  one-half  of  sentence  before 
becoming  eligible  for  parole,  District  Court  properly  denied  relief  without 
a  hearing,  since  petitioner's  allegations  did  not  satisfy  ''prejudice"  require- 
ment for  a  valid  ineffective-assistance  claim.  Hill  v.  Lockhart,  p.  52. 

IX.  Right  to  Speedy  Trial. 

Interlocutory  appeals— Dismissal  of  indictment  and  reindictment.— 
Where  respondents  were  orginally  indicted  in  1975  for  violations  of  federal 
law  but— because  of  interlocutory  appeals,  dismissal  of  indictment,  and 
reindictment— were  not  brought  to  trial  until  1983,  when  District  Court 
dismissed  second  indictment  on  ground  that  Sixth  Amendment  right  to  a 
speedy  trial  had  been  violated,  neither  time  during  which  original  indict- 
ment was  dismissed  and  respondents  were  free  of  all  liberty  restrictions, 
nor  delays  attributable  to  particular  interlocutory  appeals  involved, 
weighed  towards  speedy  trial  claims,  and  facts  did  not  warrant  dismissal  of 
case  on  such  ground.  United  States  v.  Loud  Hawk,  p.  302. 

X.  States'  Immunity  from  Suit. 

AFDC  program— State  official's  policies.  —Where  (1)  petitioner  recipi- 
ents of  benefits  under  Aid  to  Families  With  Dependent  Children  program 
brought  federal-court  actions  against  respondent  state  official  for  injunc- 
tive,  declaratory,  and  "notice"  relief  on  ground  that  federal  law  was  vio- 
lated by  respondent's  policies  of  prohibiting  deduction  of  child  care  cost 
and  requiring  inclusion  of  stepparents'  income  for  purposes  of  determining 
eligilibity  for  and  amount  of  benefits,  and  (2)  while  actions  were  pending, 
federal  statute  was  amended  to  impose  same  requirements  as  respond- 
ent's, Eleventh  Amendment  precluded  "notice"  relief,  and  declaratory 
relief  was  precluded  under  principles  governing  such  relief,  since  there 
was  no  continuing  violation  of  federal  law.  Green  v.  Mansour,  p.  64. 

CRIMINAL  LAW.     See  Constitutional  Law,  I-III;  IV,  2,  7;  V;  VII-IX; 
Habeas  Corpus;  Indictments;  Speedy  Trial  Act. 

CRUEL  AND  UNUSUAL  PUNISHMENT.    See  Constitutional  Law,  II. 

CUSTODIAL  INTERROGATIONS.      See  Constitutional  Law,  IV,  2; 
Habeas  Corpus. 

CUSTOMS'  SEIZURE  OF  GOODS.      See  Constitutional  Law,  IV,  3. 
DEATH  PENALTY.     See  Constitutional  Law,  II. 
DECLARATORY  JUDGMENTS.     See  Constitutional  Law,  X. 

"DEMAND  DEPOSITS"  IN  BANKS.     See  Bank  Holding  Company  Act 
of  1956. 


INDEX  1309 

DISCIPLINARY  PROCEEDINGS  AGAINST  PRISONERS.     See  Pris- 
ons and  Prisoners. 

DISCRIMINATION  BASED  ON  RACE.      See  Constitutional  Law,  V. 

DISCRIMINATION  IN  GRAND  JURY  SELECTION.      See  Constitu- 
tional Law,  V. 

DISMISSAL  OF  ACTIONS.     See  Mootness. 

DOUBLE  JEOPARDY.     See  Constitutional  Law,  III. 

DUAL  SOVEREIGNTY  DOCTRINE.     See  Constitutional  Law,  III,  2. 

DUE  PROCESS.     See  Constitutional  Law,  IV. 

EIGHTH  AMENDMENT.     See  Constitutional  Law,  II. 

ELECTIONS.     See  Stays. 

ELEVENTH  AMENDMENT.     See  Constitutional  Law,  X. 

EMINENT  DOMAIN.     See  Clean  Water  Act. 

EMPLOYER    AND    EMPLOYEES.      See    Occupational   Safety    and 
Health  Act. 

EQUAL  PROTECTION  OF  THE  LAWS.     See  Constitutional  Law,  V. 
ESTABLISHMENT  OF  RELIGION.     See  Constitutional  Law,  VI. 

EVIDENCE.     See  Constitutional  Law,  I;  IV,  2,  7;  VII;  VIII,  1;  Habeas 
Corpus. 

EXCISE  TAXES.     See  Indians. 

EXPERT  WITNESSES.     See  Constitutional  Law,  I;  IV,  7. 

FEDERAL  MAGISTRATES  ACT.     See  Constitutional  Law,  IV,  4. 

FEDERAL     RESERVE     BOARD    REGULATION    DEFINING 
"BANKS."     See  Bank  Holding  Company  Act  of  1956. 

FEDERAL  RULES  OF  CRIMINAL  PROCEDURE.     See  Indictments. 

FEDERAL-STATE    RELATIONS.      See    Bankruptcy   Act;    Constitu- 
tional Law,  X;  Judgments;  Natural  Gas  Act  of  1938. 

FIFTH  AMENDMENT.      See  Clean  Water  Act;  Constitutional  Law, 

III;  IV,  3,  4;  VII. 

FIRST  AMENDMENT.     See  Constitutional  Law,  VI. 

FORFEITURE  OF  GOODS  TO  CUSTOMS.     See  Constitutional  Law, 

IV,  3. 

FOURTEENTH  AMENDMENT.      See  Constitutional  Law,  IV,   1,  2, 

5-7;  V. 

FOURTH  AMENDMENT.     See  Constitutional  Law,  VII. 


1310  INDEX 

FREEDOM  OF  RELIGION.     See  Constitutional  Law,  VI. 
FULL  FAITH  AND  CREDIT  ACT.     See  Judgments. 
GAS  REGULATIONS.     See  Natural  Gas  Act  of  1938. 
GRAND  JURY  SELECTION.     See  Constitutional  Law,  V. 
HABEAS  CORPUS.     See  also  Constitutional  Law,  II;  V. 

Confession— Voluntariness  —  (Question  of  fact. — Voluntariness  of  a  con- 
fession is  not  an  issue  of  fact  entitled  to  28  U.  S.  C.  §2254(d)'s  presump- 
tion, in  federal  habeas  corpus  proceedings,  of  correctness  of  state-court 
findings  of  fact,  but  is  a  legal  question  meriting  independent  consideration 
in  federal  proceeding.  Miller  v.  Fenton,  p.  104. 

HABEAS  CORPUS  AD  TESTIFICANDUM.     See  Witnesses. 
HANDICAPPED  PERSONS.     See  Constitutional  Law,  VI. 

IMMUNITY  OF  PRISON  OFFICIALS  FROM  LIABILITY.     See  Pris- 
ons and  Prisoners. 

IMMUNITY  OF  STATES  FROM  SUIT.      See  Constitutional  Law,  X. 
INDIANS. 

State  cigarette  excise  tax— Tribe's  sales  to  non-Indians.— Respondent 
Indian  Tribe  could  properly  be  required  to  collect  and  remit  California's 
cigarette  excise  tax  with  regard  to  Tribe's  sale  of  cigarettes  to  non-Indians 
on  reservation  in  California,  since  tax  statute  placed  legal  incidence  of  tax 
on  such  non-Indian  purchasers.  California  State  Bd.  of  Equalization  v. 
Chemehuevi  Indian  Tribe,  p.  9. 

INDICTMENTS.     See  also  Constitutional  Law,  IX;  Speedy  Trial  Act. 

Misjoinder  of  counts— Harmless  error.  —Where  (1)  a  father  and  his 
son  were  indicted  for  mail  fraud  in  connection  with  insurance  claims  that 
were  paid  for  fire  damage  to  a  restaurant  and  to  a  duplex  that  father  had 
hired  an  arsonist  to  burn,  (2)  one  count  charged  father  only  with  mail  fraud 
concerning  restaurant  fire,  (3)  other  counts  charged  both  with  mail  fraud 
concerning  duplex  fire  and  conspiracy  to  commit  mail  fraud  in  connection 
with  a  third  arson  scheme,  and  (4)  jury  returned  convictions  on  all  counts 
after  being  instructed  not  to  consider  evidence  as  to  restaurant  fire  against 
son,  claimed  misjoinder  of  counts  under  Federal  Rule  of  Criminal  Proce- 
dure 8(b)  was  subject  to  harmless-error  analysis  and  was  harmless  in  view 
of  overwhelming  evidence  of  guilt  as  to  all  counts  and  jury  instruction. 
United  States  v.  Lane,  p.  438. 

INFORMANT'S  USE  OF  BODY  WIRE  TRANSMITTER  AT  MEET- 
ING WITH  ACCUSED.     See  Constitutional  Law,  VIII,  1. 

INSANITY  AS  CRIMINAL  DEFENSE.     See  Constitutional  Law,  IV, 

2. 


INDEX  1311 

INTERLOCUTORY   APPEALS   AS  AFFECTING   SPEEDY  TRIAL 
RIGHTS.     See  Constitutional  Law,  IX. 

JAILERS'  LIABILITY  TO  INMATES  FOR  NEGLIGENCE.     See  Con- 
stitutional Law,  IV,  5,  6. 

JOINDER  OF  COUNTS  IN  INDICTMENTS.     See  Indictments. 

JUDGES.     See  Constitutional  Law,  IV,  4. 

JUDGMENTS. 

Res  judicata— Effect  of  state-court  judgment  in  federal  court— Full 
Faith  and  Credit  Act.— Where  (1)  it  was  alleged  in  Alabama  court  that 
respondent  bank  had  fraudulently  induced  petitioner  individuals  to  permit 
a  third  party  to  take  control  and  ultimate  ownership  of  petitioner  corpora- 
tions' subsidiary,  (2)  after  subsidiary  was  adjudicated  an  involuntary  bank- 
rupt, petitioners  sued  bank  in  Federal  District  Court,  alleging  that  bank's 
same  conduct  violated  Bank  Holding  Company  Act  amendments,  (3)  Dis- 
trict Court  entered  judgment  for  bank  and  Court  of  Appeals  affirmed,  (4) 
state  court  denied  respondents'  res  judicata  defense  based  on  federal  judg- 
ment, and  jury  returned  a  damages  verdict  for  petitioners,  and  (5)  District 
Court  then  enjoined  petitioners  from  further  prosecuting  state  action  since 
state-law  claims  should  have  been  raised  in  federal  action,  Court  of  Ap- 
peals, in  affirming  District  Court's  injunction  on  res  judicata  grounds, 
erred  by  refusing  to  consider  possible  preclusive  effect,  under  Alabama 
law,  of  state-court  judgment  rejecting  res  judicata  claim;  Pull  Faith  and 
Credit  Act  required  federal  courts  to  give  state  court's  resolution  of  res 
judicata  issue  same  preclusive  effect  it  would  have  had  in  another  Alabama 
court.  Parsons  Steel,  Inc.  v.  First  Alabama  Bank,  p.  518. 

JUST  COMPENSATION  CLAUSE.     See  Clean  Water  Act. 

MAGISTRATES.     See  Constitutional  Law,  IV,  4. 

MAIL  FRAUD.     See  Indictments. 

MEDICAL  STUDENTS.     See  Constitutional  Law,  IV,  1. 

MIRANDA  WARNINGS.     See  Constitutional  Law,  IV,  2. 

MISJOINDER  OF  COUNTS  IN  INDICTMENTS.     See  Indictments. 

MISSISSIPPI.     See  Natural  Gas  Act  of  1938. 

MOOTNESS. 

Settlement  of  action. — Parties'  motion  requesting  decision  of  questions 
presented  in  petition  for  certiorari  despite  settlement  of  underlying  causes 
of  action  was  denied,  Court  of  Appeals'  judgment  was  vacated,  and  case 
was  remanded  for  dismissal  of  cause  as  moot.  Lake  Coal  Co.  v.  Roberts  & 
Schaefer  Co.,  p.  120. 

MUNICIPAL  ELECTIONS.     See  Stays. 


1312  INDEX 

NATURAL  GAS  ACT  OF  1938. 

Purchasers  from  gas  pools— State  regulation— Pre-emption. — Missis- 
sippi Oil  and  Gas  Board's  rule  requiring  gas  purchasers  to  buy  gas  from 
producers'  common  gas  pools  without  discrimination  in  favor  of  one  pro- 
ducer against  another  was  pre-empted  by  Natural  Gas  Act  and  by  Natural 
Gas  Policy  Act  of  1978.  Transcontinental  Gas  Pipe  Line  Corp.  v.  State  Oil 
and  Gas  Bd.  of  Miss.,  p.  409. 

NATURAL  GAS  POLICY  ACT  OF  1978.     See  Natural  Gas  Act  of  1938. 
NEW  JERSEY.     See  Bankruptcy  Act. 
NEW  YORK.     See  Bankruptcy  Act. 
OCCUPATIONAL  SAFETY  AND  HEALTH  ACT. 

Secretary  of  Labor— Withdrawal  of  citation  to  employer— Review.  — Sec- 
retary of  Labor  has  unreviewable  discretion  under  Act  to  withdraw  a  cita- 
tion charging  an  employer  with  violating  Act,  and  Occupational  Safety  and 
Health  Review  Commission  has  no  authority  to  overturn  Secretary's  deci- 
sion not  to  issue  or  to  withdraw  a  citation.  Cuyahoga  Valley  R.  Co.  v. 
Transportation  Union,  p.  3. 

OIL  WASTES.     See  Bankruptcy  Act. 

PAROLE.     See  Constitutional  Law,  VIII,  2. 

PLEA  BARGAINING.     See  Constitutional  Law,  VIII,  2. 

POLICE  INFORMANT'S  USE  OF  BODY  WIRE  TRANSMITTER  AT 
MEETING  WITH  ACCUSED.     See  Constitutional  Law. 

POLICE  INTERROGATIONS.     See  Constitutional  Law,  IV,  2,  VIII,  1; 
Habeas  Corpus. 

POLLUTION.     See  Bankruptcy  Act;  Clean  Water  Act. 

PRE-EMPTION  OF  STATE  LAW  BY  FEDERAL  LAW.     See  Bank- 
ruptcy Act;  Natural  Gas  Act  of  1938. 

PRISONS  AND  PRISONERS.     See  also  Constitutional  Law,  IV,  5,  6; 
Witnesses. 

Disciplinary  proceedings  against  prisoners —Officials'  immunity  from 
liability. — In  respondent  federal  prisoners'  federal-court  action  against 
petitioner  prison  officials,  alleging  violation  of  respondents'  constitutional 
rights  and  seeking  declaratory  and  injunctive  relief  and  damages,  which 
action  arose  from  petitioners'  handling  of  disciplinary  proceedings  against 
respondents,  petitioners  were  entitled  to  only  limited,  not  absolute,  immu- 
nity from  liability.  Cleavinger  v.  Saxner,  p.  193. 

PRIVILEGE  AGAINST  SELF-INCRIMINATION.     See  Constitutional 
Law,  VII. 


INDEX  1313 

PROSECUTOR'S  MISCONDUCT.     See  Constitutional  Law,  IV,  2. 
RACIAL  DISCRIMINATION.     See  Constitutional  Law,  V. 

REHABILITATION    OF    VISUALLY    HANDICAPPED    PERSONS. 
See  Constitutional  Law,  VI. 

RELIGIOUS  FREEDOM.     See  Constitutional  Law,  VI. 
RELIGIOUS  SCHOOLS.     See  Constitutional  Law,  VI. 

REMISSION  OF  FORFEITURE   OF  GOODS  TO  CUSTOMS.      See 
Constitutional  Law,  IV,  3. 

RESENTENCING  AS  VIOLATING  DOUBLE  JEOPARDY  CLAUSE. 
See  Constitutional  Law,  III,  1. 

RES  JUDICATA.     See  Judgments. 

RIGHT  TO  COUNSEL.     See  Constitutional  Law,  VIII. 

RIGHT  TO  REMAIN  SILENT.     See  Constitutional  Law,  IV,  2. 

RIGHT  TO  SPEEDY  TRIAL.     See  Constitutional  Law,  IX. 

SAFETY  STANDARDS.     See  Occupational  Safety  and  Health  Act. 

SEARCHES  AND  SEIZURES.     See  Constitutional  Law,  VII. 

SECRETARY   OF   LABOR'S   CITATIONS   TO  EMPLOYERS.      See 
Occupational  Safety  and  Health  Act. 

SEIZURE  OF  GOODS  BY  CUSTOMS.     See  Constitutional  Law,  IV,  3. 
SELECTION  OF  GRAND  JURY.     See  Constitutional  Law,  V. 
SELF-INCRIMINATION.     See  Constitutional  Law,  VII. 
SETTLEMENT  OF  ACTIONS.     See  Mootness. 
SIXTH  AMENDMENT.     See  Constitutional  Law,  I;  VIII;  IX. 
SPEEDY  TRIAL  ACT. 

Trial-preparation  period— Superseding  indictment. — Act's  provisions 
stating  that  a  trial  shall  not  commence  less  than  30  days  from  date  on  -which 
defendant  first  appears  through  counsel  does  not  require  that  30-day 
preparation  period  be  restarted  upon  filing  of  a  superseding  indictment, 
where  defendant  appeared  through  counsel  at  arraignment  on  original  in- 
dictment, which  was  corrected  by  superseding  indictment  merely  with  re- 
gard to  date  of  defendant's  previous  conviction  of  another  offense.  United 
States  v.  Rojas-Contreras,  p.  231. 

SPEEDY  TRIAL  CLAUSE.     See  Constitutional  Law,  IX. 
STATE  CIGARETTE  EXCISE  TAXES.     See  Indians. 

STATE-COURT  JUDGMENT'S  EFFECT  IN  FEDERAL  COURT.     See 
Judgments. 


1314  INDEX 

STATE   OFFICIALS'  LIABILITY  FOR  NEGLIGENCE.      See  Con- 
stitutional Law,  IV,  5,  6. 

STATES'  IMMUNITY  FROM  SUIT.     See  Constitutional  Law,  X. 
STAYS. 

Election  of  City  Councilmen.  —Application  to  stay  Hawaii  Supreme 
Court's  judgment  construing  a  city's  charter  provision  as  preventing  appli- 
cant Councilmen,  who  had  been  recalled  from  their  offices  in  an  election, 
from  appearing  on  ballot  in  a  special  election  to  fill  vacancies  caused  by 
their  recall,  is  denied.  Republican  Party  of  Hawaii  v.  Mink  (REHNQUIST, 
J.,  in  chambers),  p.  1301. 

STUDENT'S  DISMISSAL  FROM  UNIVERSITY.     See  Constitutional 
Law,  IV,  1. 

SUPERSEDING  INDICTMENTS.     See  Speedy  Trial  Act. 
SUPREME  COURT. 

1.  Notation  of  the  death  of  Justice  Stewart  (retired),  p.  xxv. 

2.  Proceedings  in  commemoration  of  50th  anniversary  of  Court  Building, 
p.  v. 

3.  Presentation  of  Solicitor  General,  p.  xxm. 

4.  Appointment  of  James  E.  Macklin,  Jr.,  as  Deputy  Director  of  Admin- 
istrative Office  of  United  States  Courts,  p.  891. 

TAKING  OF  PROPERTY  FOR  PUBLIC  USE.     See  Clean  Water  Act. 

TAXES.     See  Indians. 

TRIAL-PREPARATION  PERIOD.     See  Speedy  Trial  Act. 

TRUSTEE'S   ABANDONMENT   OF   DEBTOR'S   PROPERTY.       See 
Bankruptcy  Act. 

UNITED  STATES  MARSHALS  SERVICE'S  DUTY  TO  TRANSPORT 
PRISONER-WITNESSES.     See  Witnesses. 

UNIVERSITIES.     See  Constitutional  Law,  IV,  1. 

VISUALLY  HANDICAPPED  PERSONS.      See  Constitutional  Law, 

VI. 

VOCATIONAL  REHABILITATION  OF  VISUALLY  HANDICAPPED 
PERSONS.     See  Constitutional  Law,  VI. 

VOLUNTARINESS   OF   CONFESSIONS.      See   Constitutional   Law, 
VII;  Habeas  Corpus. 

WAIVER  OF  APPELLATE  REVIEW.     See  Constitutional  Law,  IV,  4. 
WASHINGTON.     See  Constitutional  Law,  VI. 
WASTE  OIL.     See  Bankruptcy  Act. 


INDEX  1315 

WATERS.  See  Clean  Water  Act. 
WETLANDS.  See  Clean  Water  Act, 

WITNESSES.  See  also  Constitutional  Law,  I;  IV,  7. 

Federal-court  action-State  prisoners  as  witmm-Transpvrtatm  by 
U,  S.  Marshals  Service.- Where  (1)  a  state  prisoner  brought  a  federal- 
court  action  under  42  U.  S.  C.  §  1983  against  various  county  officials,  alleg- 
ing that  they  had  beaten  and  harassed  him,  and  (2)  a  Federal  Magistrate 
issued  writs  of  habeas  corpus  ad  Mijwndum  directing  United  States 
Marshals  Service  to  transport  state  prisoner-witnesses  from  county  jail  to 
federal  courthouse,  there  was  no  authority  under  federal  statutes,  includ- 
ing All  Writs  Act  and  habeas  corpus  statutes,  for  ordering  such  transporta- 
tion by  Marshals  Service.  Pennsylvania  Bureau  of  Correction  v.  U.  S. 
Marshals  Service,  p.  34. 

WORDS  AND  PHRASES. 

1. "«."  §2(c),  Bank  Holding  Company  Act  of  1956, 12  U.  S.  C. 
§  1841(c).  Board  of  Governors,  FRS  v.  Dimension  Financial  Corp.,  p.  361. 

2.  "Commercial  loam. "  §  2(c),  Bank  Holding  Company  Act  of  1956, 12 
U.  S.  C.  §1841(c).  Board  of  Governors,  FRS  v.  Dimension  Financial 
Corp.,  p.  361.