author: DONALD RUSSELL, Circuit Judge:

text:
    Terri Lee DREISONSTOK, an infant, by her mother and next friend, Catherine A. Dreisonstok, and Catherine A. Dreisonstok, Appellees, v. VOLKSWAGENWERK, A. G., a/k/a Volkswagenwerk Aktiegesellschaft, a foreign corporation, and Volkswagen of America, Inc., a New York corporation, Appellants.
    No. 73-1074.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 3, 1973.
    Decided Jan. 14, 1974.

      Alexander H. Slaughter, Richmond, Va. (Rosewell Page, II, McGuire Woods, & Battle, Richmond, Va., Herbert Rubin, Michael Hoenig and Herzfeld & Rubin, P. C., New York City, on brief) for appellants.
    Oren R. Lewis, Jr., Arlington, Va. (Gary R. Sheehan and Tolbert, Lewis & Fitzgerald, Ltd., Arlington, Va., on brief) for appellees.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.
   DONALD RUSSELL, Circuit Judge:

The plaintiff, along with her mother, sues a car manufacturer for so-called “enhanced” injuries sustained by her when the Volkswagen microbus in which she was riding crashed into a telephone pole. The microbus had passed the crest of a small hill and was proceeding down the grade at the time of the accident. When the vehicle passed the crest of the hill, the driver noted that his speed was about 40 miles an hour. As the vehicle continued down the hill, the bus began “picking up some speed, a little too much.” To reduce his speed, the driver attempted to downshift the vehicle. Beeause he had some difficulty in locating the gearshift lever, the driver took his “eyes off the road” and in some way “pulled the steering wheel” causing the vehicle to veer “to the right” into “the driveway”. The plaintiff screamed, causing the driver to look up. As the driver did, he “saw a telephone pole headed right toward us”. He tried to cut back into the road but there “was an oncoming vehicle the other way, so it was either the telephone pole or another vehicle.” He chose the telephone pole. The bus hit the pole on its right front. The plaintiff was seated in the center of the seat, next to the driver, with her left leg under her. As a result of the impact, her right leg was caught between the back of the seat and the dashboard of the van and she was apparently thrown forward. She sustained severe injuries to her ankle and femur. She seeks to recover for her injuries, and her mother for medical expenses, from the vehicle manufacturer, contending that the latter was guilty of negligent design in the location of the gearshift in its vehicle and in the want of crashwor-thiness of its vehicle. The action was tried without a jury. The District Court dismissed the claim relating to the gearshift but concluded that the defendant manufacturer had been guilty of negligence in failing to use due care in the- design of its vehicle by providing “sufficient energy-absorbing materials or devices or ‘crush space,’ if you will, so that at 40 miles an hour the integrity of the passenger compartment would not be violated”, and that, as a result, the injuries of the plaintiff were enhanced “over and above those injuries which the plaintiff might have incurred.” From judgment entered on the basis of that conclusion in favor of the plaintiff and her mother, the defendants have appealed. We reverse.

The correctness of the finding by the District Court that the defendant manufacturer was guilty of negligent design in this case depends on the determination of what extent a car manufacturer owes the duty to design and market a “crashworthy” vehicle, one which, in the event of a collision, resulting accidentally or negligently from the act of another and not from any defect or malfunction in the vehicle itself, protects against unreasonable risk of injury to the occupants. The existence and nature of such a duty is a legal issue, for resolution as a matter of law. So much all the authorities agree. There are, however, two fairly definite lines of conflicting authority on whether there is such a duty. *One group of which Evans is the leading authority, holds that no such duty rests on the manufacturer, since the “intended use” of an automobile does not extend to collisions. The other, while relieving the manufacturer of any duty to design an accident-proof vehicle, would impose a duty to use reasonable care in the design and manufacture of its product so as “to eliminate any unreasonable risk of foreseeable injury” as a result of a collision, for which the manufacturer may not be responsible. Larsen is the primary authority for this rule.

This is a diversity case and, as such, the rights of the parties are governed by Virginia law. It is conceded that there is no binding Virginia precedent on a car manufacturer’s duty to design a “crashworthy” vehicle. The plaintiffs argue, though, that the general trend of the decisions in Virginia, as evidenced by the opinion of this Court in Spruill v. Boyle-Midway, Incorporated (4th Cir. 1962) 308 F.2d 79, ranges Virginia with those jurisdictions imposing liability for negligent design in failing to take reasonable precautions against unreasonable risks of harm to passengers by reason of a collision. For purposes of this decision, it may be assumed that this is the trend of the Virginia decisions. Assuming it to be applicable to the facts of this case, however, the Larsen rule will not support recovery by the plaintiffs.

In arguing in favor of liability, the appellees stress the foreseeability in this mechanical age of automobile collisions, as affirmed in numerous authorities, and would seemingly deduce from this a duty on the car manufacturer to design its vehicle so as to guard against injury from involvement of its vehicle in any such anticipated collisions. The mere fact, however, that automobile collisions are frequent enough to be foreseeable is not sufficient in and of itself to create a duty on the part of the manufacturer to design its car to withstand such collisions under any circumstances. Foreseeability, it has been many times repeated, is not to be equated with duty; it is, after all, but one factor, albeit an important one, to be weighed in determining the issue of duty. Were foreseeability of collision the absolute litmus test for establishing a duty on the part of the car manufacturer, the obligation of the manufacturer to design a crash-proof car would be absolute, a result that Larsen itself specifically repudiates. After all, “[N] early every accident situation, [involving an automobile] no matter how bizarre, is ‘foreseeable’ if only because in the last fifty years drivers have discovered just about every conceivable way of wrecking an automobile.”

The key phrase in the statement of the Larsen rule is “unreasonable risk of injury in the event of a collision”, not foreseeability of collision. The latter circumstance is assumed in collision cases under the Larsen principle; it is the element of “unreasonable risk” that is uncertain in such cases and on which the determination of liability or no liability will rest. It would patently be unreasonable “to require the manufacturer to provide for every conceivable use or unuse of a car.” Nader & Page, Automobile Design and the Judicial Process, 55 Cal.L.Rev. 645, 646. Liability for negligent design thus “is imposed only when an unreasonable danger is created. Whether or not this has occurred should be determined by general negligence principles, which involve a balancing of the likelihood of harm, and the gravity of harm if it happens against the burden of the precautions which would be effective to avoid the harm.” In short, against the likelihood and gravity of harm “must be balanced in every case the utility of the type of conduct in question.” The likelihood of harm is tied in with the obviousness of the danger, whether latent or patent, since it is frequently stated “that a design is not unreasonably dangerous because the risk is one which any one immediately would recognize and avoid.” The purposes and intended use of the article is an even more important factor to be considered. After all, it is a commonplace that utility of design and attractiveness of the style of the car are elements which car manufacturers seek after and by which buyers are influenced in their selections. In every case, the utility and purpose of the particular type of vehicle will govern in varying degree the standards of safety to be observed in its design. This was recognized in the Traffic and Motor Vehicle Safety Act, which undertakes “to establish motor vehicle safety standards for motor vehicles.” 15 U.S.C. 1381 et seq. In prescribing such standards, the Secretary is directed to “consider whether any such proposed standard is reasonable, practicable and appropriate for the particular type of motor vehicle * * *.” Section 1392(f)(3). (Italics added.) Stated somewhat differently, the safety of every type of vehicle is to be evaluated under this Act in connection with what is “reasonable, practicable and appropriate” for its special type. And this is the same rule that has been judicially applied, even in Larsen type cases. Thus, in Dyson v. General Motors Corporation (D.C.Pa. 1969) 298 F.Supp. 1064, 1073, a case which followed and applied the Larsen rule, the Court emphasized that design safety must take account of “differentiation between various models of automobile” and involves “a recognition of the inherent characteristics of each.” It pointed out that a convertible could not be made “as safe in roll-over accidents as a standard four-door sedan with center posts and full-door frames.” The convertible was only required to be as reasonably safe as its intended use would allow and “not appreciably less safe than other convertibles.” Price is, also, a factor to be considered, for, if a change in design would appreciably add to cost, add little to safety, and take an article out of the price range of the market to which it was intended to appeal, it may be “unreasonable” as well as “impractical” for the Courts to require the manufacturer to adopt such change. Of course, if an article can be made safer and the hazard of harm may be mitigated “by an alternate design or device at no substantial increase in price”, then the manufacturer has a duty to adopt such a design but a Cadillac may be expected to include more in the way of both conveniences and “crashworthiness” than the economy car. Moreover, in a “crashworthy” case, it is necessary to consider the circumstances of the accident itself. As Dyson puts it, “it could not reasonably be argued that a car manufacturer should be held liable because its vehicle collapsed when involved in a head-on collision with a large truck, at high speed.” In summary, every case such as this involves a delicate balancing of many factors in order to determine whether the manufacturer has used ordinary care in designing a car, which, giving consideration to the market purposes and utility of the vehicle, did not involve unreasonable risk of injury to occupants within the range of its “intended use”.

“In the light of the recognizable risk, the conduct, to be negligent, must be unreasonable.”

Applying the foregoing principles to the facts of this particular case, it is clear that there was no violation by the defendant of its duty of ordinary care in the design of its vehicle. The defendant’s vehicle, described as “a van type multipurpose vehicle”, was of a special type and particular design. This design was uniquely developed in order to provide the owner with the maximum amount of either cargo or passenger space in a vehicle inexpensively priced and of such dimensions as to make possible easy maneuverability To achieve this, it advanced the driver’s seat forward, bringing such seat in close proximity to the front of the vehicle, thereby adding to the cargo or passenger space. This, of course, reduced considerably the space between the exact front of the vehicle and the driver’s compartment. All of this was readily discernible to any one using the vehicle; in fact, it was, as we have said, the unique feature of the vehicle. The usefulness of the design is vouchsafed by the popularity of the type. It was of special utility as a van for the transportation of light cargo, as a family camper, as a station wagon and for use by passenger groups too large for the average passenger car. It was a design that had been adopted by other manufacturers, including American. It was a design duplicated in the construction of the large trucking tractors, where there was the same purpose of extending the cargo space without unduly lengthening the tractor-trailer coupling. There was no evidence in the record that there was any practical way of improving the “crashability” of the vehicle that would have been consistent with the peculiar purposes of its design. The only theory on which the plaintiffs posited their claim of negligent design was, to quote the language of their brief in this Court, that “[T]he 1968 Volkswagen station wagon did not provide the protection for the front seat passengers as did the ‘normal’ or standard passenger car.” The “normal or standard passenger car”, to which, under the plaintiffs’ argument, the vehicle was required to conform if it was to meet the test of reasonable design, was defined by the plaintiffs on one occasion as “a standard American made vehicle, which is a configuration with the passengers in the middle and the motor in the front” and on another as “a passenger car with an engine in front and with a long hood * * And all of their expert testimony was to this point. These experts offered by the plaintiffs concededly made no attempt to compare for safety of design or for any other purpose defendant’s special type of vehicle with similar types made by other manufacturers or indicated any way in which safety in such vehicles could have been improved, given the peculiar purpose of the vehicle. They completely disregarded the rule developed in Dyson, swpra, and the standards developed by Congress in the Traffic and Motor Vehicle Safety Act, which would compare vehicles of the same type in determining safety standards. These experts contented themselves with arriving at the reasonable design of the defendant’s vehicle by one test and that was by comparing it with the 1966 midsized Ford passenger car. In short, the plaintiffs’ theory of negligent design and the thrust of all their expert testimony on such point was that, to meet the test of ordinary care in design so as to avoid “unreasonable risk” of injury, the vehicle of the defendant had to conform with the configuration of the standard American passenger car, vintage 1966, i. e., its motor must be in front, not in the rear; its passenger compartment must be “in the middle”; and the space in front of the passenger compartment must be approximately the same as that in a “standard American passenger car.” Under this standard, any rear engine car would be “inherently dangerous”; any microbus or front-end tractor — both in wide use in 1968 and now — would be declared “inherently dangerous”. To avoid liability for negligent design, no manufacturer could introduce any innovative or unique design, even though reasonably calculated to provide some special advantage such as greater roominess. Such a strait-jacket on design is not imposed, whether the rule applied is that of Evans or of Larsen. If a person purchases a convertible, as Dyson makes clear, he cannot expect — and the Court may not impose on the manufacturer the duty to provide him with— the exact kind of protection in a rollover accident as in the “standard American passenger car”. The situation is similar when he purchases a microbus: The distance between the front and the passenger compartment is minified in order to provide additional cargo or passenger space just as the convertible is designed to provide openness. It is entirely impermissible to predicate a conclusion of negligent design simply because a vehicle, having a distinctive purpose, such as the microbus, does not conform to the design of another type of vehicle, such as a standard passenger car, having a different nature and utility. As a matter of fact, the defendant offered evidence — unrefuted in the testimony — that its design, at least so far as “crash space between the front and the passenger compartment, was equal to or superior to that of other vehicles of like type.

The District Court, however, seems to have accepted plaintiffs’ theory, though expressing it somewhat differently from the standard stated by the plaintiffs in their brief. It stated the standard of ordinary care in design to require that a vehicle be able to withstand a “head-on” collision at 40 miles an hour without a violation of “the integrity of the passenger compartment”, and held that the defendant had “violated” its duty in failing to meet this standard. Accepting the principle that a manufacturer must anticipate that its product will likely at some point in its use be involved in a collision, does ordinary care demand that, in taking precautions, it must provide against impacts at a speed of 40 miles per hour? Is this the “reasonable risk”, as it has been defined in the authorities quoted supra, against which the manufacturer must provide protection? And why “40 miles an hour” as the standard anyway? This standard was adopted, it seems clear from the District Court’s order, because the plaintiffs contended that a “standard American passenger car” had sufficient “crash space” that its passenger compartment would not have been invaded in a 40 mile impact. This conclusion rests on some measurements made by the plaintiffs’ experts in comparing the “crasha-bility” of a microbus and that of a 1966 Ford passenger car. No tests were made by these experts to confirm experimentally these conclusions. The plaintiffs’ experts merely measured the distance from the exact front of the micro-bus and the point where the plaintiff had collided with the interior of the van and compared that distance with the distance between the front and passenger seat of a 1966 Ford passenger car; and because the distance in the latter instance was greater than in the former, they concluded that, had the plaintiff been riding in a 1966 Ford passenger car, she would have escaped injury. But, as we have already seen, in determining whether a vehicle has been negligently designed so far as safety is concerned, the special purpose and character of the particular type of vehicle must be considered, and a microbus is no more to be compared with a standard 1966 passenger type car than the convertible instanced in Dyson is to be compared with a standard hard-top passenger car. Both the plaintiffs and the District Court employed an improper standard in determining whether the defendant had been guilty of negligent design.

It, perhaps, may not be amiss to note that there is not substantial evidence to sustain a finding that as a result of the design of the microbus the plaintiff’s injuries were enhanced. Cf., Yetter v. Rajeski, supra, at pp. 108-109 (364 F.Supp.). In fact, the record seems clear that in any event the plaintiff, who had made no endeavor to protect herself with a seat belt, would have received severe injuries, irrespective of the type of vehicle she may have been riding in. There was testimony — which was not seriously questioned — that experiments conducted under the auspices of the Department of Transportation indicated that “the average barrier equipment velocity for fatalities, the mean velocity is only 33 miles per hour * * It may be that in every case the injuries may be somewhat different but any “head-on” collision at a speed of 40 miles an hour or more will result in severe injuries to the occupants of a vehicle and, certainly in 1968, no design short of an impractical and exorbitantly expensive tank-like vehicle (see, Alexander v. Seaboard Air Line Railroad Company, supra, 346 F.Supp. 320) could have protected against such injuries; in fact, it is doubtful that even such a vehicle could have. Can it be said that a manufacturer in 1968 must have, in its design, so built its vehicle as to protect against such an “unreasonable risk of injury”? We think not.

Reversed and remanded with directions to the District Court to enter judgment in favor of the appellants-defendants.

      . As the driver, in his testimony, explained it, “[F]or the simple reason I was picking up too much speed and I was coming down a hill, and my father had always taught me to downshift whenever I had the chance to, to save on the brakes.”

      . As in Larsen v. General Motors Corporation (8th Cir. 1968) 391 F.2d 495, 506, the Court based its decision on ordinary negligence principles rather than warranty or strict liability. It has been intimated that this is the correct basis in design cases. See Brown v. General Motors Corporation (4th Cir. 1966) 355 F.2d 814, 821, cert. denied 386 U.S. 1036, 87 S.Ct. 1474, 18 L.Ed.2d 600; Gray v. General Motors Corporation (8th Cir. 1970) 434 F.2d 110, 114; Note, 1966 Utah L.Rev. 698, 705. It would appear, however, that it makes little or no real difference whether liability is asserted on grounds of negligence, warranty or strict liability ; the applicable principles are roughly the same in any case. Chestnut v. Ford Motor Company (4th Cir. 1971) 445 F.2d 967, 968-969; Note, 24 Vanderbilt L.Rev. 862, 863.

      . "The term ‘crashworthiness’ ”, as defined in the Motor Vehicle Information and Cost Savings Act, “means the protection that a passenger motor vehicle affords its passengers against personal injury or death as a result of a motor vehicle accident.” Section 1901(14), 15 U.S.C.
      Crashworthiness has, also, been defined as “the relative ability of an automobile to protect its passengers from the second collision.” Note, Liability for Negligent Automobile Design, 52 Iowa L.Rev. 953, 957 (1967).
      Another definition of crashworthiness is phrased as the “second collision doctrine” which “seeks to impose common law liability upon the automobile industry for injurious consequences of automobile collisions despite the fact that no defect or malfunction in the vehicle causes the mishap.” Iloenig & Wer-ber, Automobile “Crashworthiness”: An Untenable Doctrine, 1971 Ins.L.Journal 583.
      The term “second collision” in these definitions refers to the collision ,“of the passenger with the interior part of the automobile” after the initial impact or collision, in this case, the collision of the van with the telephone pole. Larsen, p. 502 (391 F.2d); Note, 80 Harv.L.Rev. 688. And, “[C'jourts have described enhanced injuries as ‘second accident’ injuries — those injuries that occur after the initial accident.” Note, Torts— Strict Liability — Automobile Manufacturer Liable for Defective Design that Enhanced Injury After Initial Accident, 24 Vand.L.Rev. 862, 864 (1971).

      . Larsen v. General Motors Corporation, supra (391 F.2d p. 498); Evans v. General Motors Corporation, (7th Cir. 1966) 359 F. 2d 822, 824, cert. denied 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70.

      . Compare, Evans v. General Motors Corporation, supra, with Larsen v. General Motors Corporation, supra, and Alexander v. Seaboard Air Line Railroad Company (D.C.N.C.1971) 346 F.Supp. 320, 322, with Grundmanis v. British Motor Corporation (D.C.Wis.1970) 308 F.Supp. 303, 306.
      The conflicting authorities are set forth in the Annotation, 42 A.L.R.3d 560.

      . 359 F.2d 822.

      . 391 F.2d at 503.

      . Landrum v. Massey-Ferguson, Inc. (5th Cir. 1973) 473 F.2d 543, 544.

      . The point is well expressed in Goldberg v. Housing Authority (1962) 38 N.J. 578, 186 A.2d 291, 293:
      “The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.”

        See, also, § 289, comment b, 2d Restatement of Torts:
      “* * * jn or(jei. ¿hat an ac(. jaay be negligent it is necessary that the actor should realize that it involves a risk of causing harm to some interest of another, such as the interest in bodily security, which is protected against unintended invasion. But this of itself is not sufficient to make the act negligent. Not only must the act involve a risk which the actor realizes or should realize, but the risk which is realized or should be realized must be unreasonable, as to which see §§ 291-293.” The editor in 42 Notre Dame L.Rev. 111, 1.15 (1967) puts it:
      “Foreseeability alone, however, creates no duty. If such were the case, a manufacturer of hammers, foreseeing injured fingers and thumbs, would be liable for every such injury. Thus, duty is established as a matter of social policy — as a means to an end.”

        See, also, Passwaters v. General Motors Corporation (8th Cir. 1972) 454 F.2d 1270, 1275, n. 5.
      “Foreseeability” does provide the formula for determining “intended use”. Gardner v. Q.H.S., Inc. (4th Cir. 1971) 448 F.2d 238, 242.

      . See, Green, Foreseeability in Negligence Law, 61 Col.L.Rev. 1401,1418 (1961) :
      “There are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case.”

        See, also, Note, Foreseeability in Product Design and Duty to Warn Cases — Distinctions and Misconceptions, 1968 Wis.L.Rev. 228, 244:
      “ * * * anticipation of harm, of course, is by no means the only factor involved. Other aspects of social policy find crystallization in other doctrinal developments.” See, Note, 42 Notre Dame L.Rev. 111, 114, quoting from 2 Harper & James, Torts, see. 28.6:
      “Obviously the maker of goods is bound to foresee and guard against only unreasonable risks which result from some use of his product which a reasonable manufacturer would anticipate as likely enough to be taken into account.”

      . Larsen states the rule to be that “an automobile manufacturer is under no duty to design an accident-proof or fool-proof vehicle * * *, but such manufacturer is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision.” (Page 502, 391 F.2d).

      . Hoenig & Werber, Automobile “Crashworthiness” : An Untenable Doctrine, supra (1971 Wis.L.Journal at 595).

        See, Yetter v. Rajeski (D.C.N.J.1973) 364 F.Supp. 105, 108:
      “ * * * It is obvious, of course, that automobiles are unhappily and almost continuously colliding with other motor vehicles, with trees, with culverts, with locomotives, and with every imaginable type of object, either moving or fixed ; that they are, indeed, driven off bridges, driven into water, and driven over cliffs; they are, in fact, involved in collisions of limitless variety.”

      . This is made clear by the same Court that decided Larsen in the subsequent decision of Schneider v. Chrysler Motors Corporation (8th Cir. 1968) 401 F.2d 549, 558. In that case, the Court said that the duty there found rested on the obligation to avoid the ‘‘creation of an unreasonable risk of harm”, and, restated the rule of Larsen, that the users of the vehicle were only subjected “to an unreasonable rislc of harm when the automobiles were being used for the purpose intended" (Italics Court’s) (at p. 556).

        See, Note, Foreseeability in Product Design and Duty to Warn Cases — Distinctions and Misconceptions, 1968, Wis.L.Rev. 228, 229:
      “The apparent emphasis on foreseeability (in automobile cases) is misleading because it blurs the more important policy bases of decision.”
      Again, at p. 245:
      “In fact, however, the term ‘foreseeability’ has become a lop-sided doctrinal vehicle which leads the reader, trying to follow its course, to believe that the prudent manufacturer ought to anticipate the carelessness and ignorance of the public; that he is liable because he is in some way more at fault. The term has been expanded to such an extent as to become no more than a grotesque of its denotative meaning.”

      . See, Prosser on Torts (3rd Ed. 1964), p. 149:

      . Larsen, p. 502, n. 3, quoting from Noel, Manufacturer’s Negligence of Design or Directions for Use of A Product, 71 Yale L.J. 816, 818 (1962).

      . Prosser on Torts (3rd Ed., 1964) p. 151; Note, Liability for Negligent Automobile Design, 52 Iowa L.Rev. 953, 959.
      The determination of whether conduct is negligent or not always involves the weighing of interests, the balancing of “the magnitude of the risk” against “the value which the law attaches to the conduct which involves it.” See, Section 283, comment e, 2d Restatement Torts; Tobin v. Grossman (1969) 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419, 422-123.

      . Ibid, 71 Yale L.J. at p. 836.

        Larsen itself underscores this point, stating (p. 501) :
      “Accepting, therefore the principle that a manufacturer’s duty of - design and construction extends to producing a product that is reasonably fit for its intended use and free of hidden defeats that oould render it unsafe for such use, the issue narrows on the proper interpretation of ‘intended use’.” (Italics added.)

        Cf., Schemel v. General Motors Corporation (7th Cir. 1967) 384 F.2d 802, 805, cert. denied 390 U.S. 945, 88 S.Ct. 1030, 19 L.Ed. 2d 1134 which follows Evans, but on this point may perhaps not be different from • Larsen:
      “The manufacturer is not an insurer. His duty is to avoid hidden defects and latent or concealed dangers [citing cases]. He is not bound to anticipate and guard against grossly careless misuse of his product by reckless drivers. The dangers attendant on excessive and unlawful speed are neither latent nor concealed.”

        See, also, Re Bruns Volkswagen Garage, Inc. (1968 Wis. C.C.) CCH Products Liability Reporter, § 5930, where, in absolving manufacturer of liability arising out of a collision, by reason of a claim of want of crashworthiness, it was held that “so long as the buyer was aware or made aware of the danger, * * * no warning was required * * *, because it must have been perfectly clear to. the purchaser when he bought a Volkswagen that a head-on collision in such a small car would be very hazardous.” 42 A.L.R.3d at p. 586.
      Where the dangerous element in an article is latent, the usual basis for liability rests on failure to warn. This was the real rationale for the decisions in Spruill v. BoyleMidway, Incorporated, supra, and Gardner v. Q.H.S., Inc., supra.

        Cf., Willis v. Chrysler Corporation (D.C.Tex.1967) 264 F.Supp. 1010, 1012, which, though adopting the Evans rule, used language which it would seem would be equally applicable to a decision following Larsen; i. e., that a car manufacturer is under no duty in the ordinary case “to design an automobile that could withstand a high speed collision and maintain its structural integrity.”

      . Of course, safety may not be sacrificed unreasonably and any vehicle should be made as safe as it reasonably can, considering its special purpose and “intended use”; but standards of safety themselves must take into account the utility of the vehicle.

      . In Bratton v. Chrysler Motors Corp., an unreported decision from the Western District of Texas, 1972, the instructions of the District Court, as set forth in 4 St. Mary’s L.J. 303, at p. 312, defines “unreasonable risk” in the design as one which is “dangerous to an extent beyond that which would be contemplated by an ordinary consumer who purchases the vehicle with the ordinary knowledge common to the community as to the characteristics of a product of the type purchased.”

        Cf., however, Note, 80 Harv.L.Rev. 688, 691, where, in indicating why Courts may in design cases be influenced to deny liability, the editor states that, “it may be that while the consumer is unable to discover product defects by insjteetion, he is in a position to choose among different designs. But perhaps even in instances where information as to product design is available, this argument may attribute to most consumers a higher degree of awareness and sophistication than is realistic. Further, in view of the resulting injuries which could have been avoided, a court may not wish to leave completely open the alternative of sacrificing safety to other considerations, to whatever extent consumers consciously make such a choice.”

      . See, Enders v. Volkswagenwerk, A.G., CCH Prod.Liab.Rep., § 5930 (Wis.Cir.Ct., 1968), quoted in Hoenig & Werber, supra, at p. 538:
      “When a G.M.C. tractor and a Mack tractor in head-on collisions do not furnish enough protection to prevent deaths of the respective drivers * * * to impose the duty of preparing inexpensive cars against head-on collisions seems beyond the realm of sensible public jjolicy » *
      In the Note, 52 Iowa L.Rev. 953, 972, it is stated that a basis for a claim of liability on account of defective design involves consideration of whether the manufacturer “could obviate or mitigate the injury by an alternate known design or device at no substantial increase in price.” (Italics added).

      . Ibid., 52 Iowa L.Rev. 972.

        See, also, Hoppe v. Midwest Conveyor Company, Inc. (8th Cir. 1973) 485 F.2d 1196, 1202:
      “Liability alleged from defective design encompasses many factors not generally relevant to ordinary negligence in tort cases. The comparative design with similar and competitive machinery in the field, alternative designs and post accident modification of the machine, the frequency or infrequency of use of the same product with or without mishap, and the relative cost and feasibility in adopting other design are all relevant to proof of defective design. * * * ”

      . See Mieher v. Brown (Ill.1973) 301 N.E.2d 307, 310 (reversing 3 Ill.App.3d 802, 278 N.E.2d 869) :
      “Although the injury complained of may have been, in a sense, foreseeable, we do not consider that the alleged defective design created an unreasonable danger or an unreasonable risk of injury. In the words of section 435(2) of the Restatement (Second) of Torts, ‘looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm’ for which recovery is now' sought. Public policy and the social requirements do not require that a duty be placed upon the manufacturer of this truck to design his vehicle so as to prevent injuries from the extraordinary occurrences of this case.”

      . 298 F.Supp. at 1073.
      The circumstances of the collision must be considered in any determination whether the event was such as it was proper and reasonable — or even feasible — for it to guard against. See Kahn v. Chrysler Corporation (D.C.Tex.1963) 221 F.Supp. 677, 679; Hentschel v. Baby Bathinette Corp. (2d Cir. 1954) 215 F.2d 102, 105, cert. denied 349 U.S. 923, 75 S.Ct. 663, 99 L.Ed. 1254 and Alexander v. Seaboard Air Line Railroad Company, supra (346 F.Supp. at 327).

      . App. at 519.

      . In describing the character of this van, a witness for the defendant testified :
      “It was designed to transport passengers and goods in a higher amount than the normal sedan on the same space which this vehicle would need in normal traffic.” (app. at 521).

      . The popularity of the model was strikingly illustrated by the fact that the father of the driver of the microbus involved in this accident immediately purchased a new one to replace the one damaged in this accident. This is extremely persuasive evidence that the purchaser of the van did not regard it, in its design and manufacture, to involve any “unreasonable risk” of harm as a result of its unique design to occupants.

      . App. at 171.

      . App. at 509.

      . In the direct examination of one of plaintiffs’ expert witnesses, this point was made perfectly clear:
      “Q. So that you are making your comparison between a 1966 Ford and a 1968 Volkswagen Type 2?
      “A. That is correct.” (App. at 207).
      The other expert witnesses of the plaintiffs did likewise.

      . The phrases “conduct involving unreasonable risk” of injury and “unreasonably dangerous conduct” are synonymous. See Section 282, Comment c, 2d Restatement of Torts.

      . The van was undoubtedly proceeding at a greater rate of speed than 40 miles an hour at impact. When the van went over the crest of the hill, its speed was 40 miles an hour but, as it proceeded down the hill to the point of impact, it gathered speed — to such an extent that the driver felt it imperative that he endeavor to slow its speed.

      . App. at 429, 430.


source: Caselaw Access Project

author: LEVIN H. CAMPBELL, Circuit Judge.

license: Public Domain

text:
    Cornelius E. SARZEN, Plaintiff-Appellant, v. Charles W. GAUGHAN et al., Defendants, Appellees.
    No. 73-1223.
    United States Court of Appeals, First Circuit.
    Argued Sept. 10, 1973.
    Decided Dec. 10, 1973.

      Francis John Stolarz, Boston, Mass., for plaintiff-appellant.
    Charles E. Chase, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., were on brief, for defendants-appellees.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

This appeal from denial of a petition for habeas corpus once again raises questions about procedures under the Massachusetts law providing for commitment of sexually dangerous persons, M.G.L. c. 123A. Sarzen complains that he was denied counsel and the right to a hearing prior to the 60-day observational commitment which preceded his final commitment hearing. These deficiencies are alleged to have rendered his later indeterminate life commitment for sexual dangerousness invalid as lacking in due process of law.

The district court held that Sarzen’s contentions were foreclosed by our decision in Gomes v. Gaughan, 471 F.2d 794, 798-801 (1st Cir. 1973). But petitioner maintains, correctly we hold, that Gomes is not dispositive of the present facts.

Sarzen, on January 10, 1961, pleaded guilty in the Hampden County Superior Court to indictments for rape and for assault and battery. Seven weeks earlier, he had raped a 17 year old female not known to him; and a month before that he had approached and put his hands on another female who fled. His juvenile record showed two 1959 “peeping Tom” offenses, one of which had been continued without sentence, and one of which had led to his commitment in a Youth Service Board facility, followed by six months parole. Seventeen years old when indicted for rape and assault, Sarzen had reached only fourth grade in a regular school.

Upon acceptance of Sarzen’s guilty pleas the court filed the assault charge and sentenced him to four to seven years imprisonment for rape.

The court did not at this time order Sarzen to be examined for possible commitment under M.G.L. c. 123A. He was instead confined to the Massachusetts Correctional Institution at Concord to serve the sentence for rape. Six months later, in July of 1961, Sarzen was examined by Dr. Cohen, a psychiatrist, after the Concord Superintendent had requested the Department of Mental Health to arrange for an examination. The request and examination are prescribed first steps to a determination of sexual dangerousness under § 6 of M.G.L. c. 123A. Unlike § 4, § 6 applies to persons convicted of any category of crime (non-sexual as well as sexual), and its procedures are available to the Commonwealth at any time until a sentenced prisoner is released. A single psychiatrist must first determine that the inmate “may” be sexually dangerous. Correctional authorities next file a motion with the court, which is accompanied by a copy of the psychiatrist’s letter, requesting an order for 60-days commitment for “examination and diagnosis.” § 6. If that motion is allowed, the inmate is transported to the Center where he is examined by at least two psychiatrists, § 6. If their report, which must be filed with the court within the 60-day period, “clearly indicates” sexual dangerousness, the district attorney “shall” file a petition for commitment, giving notice to the inmate or others on his behalf. Thereafter, an adversary court hearing is held at which the inmate is entitled to counsel and other safeguards. See §§ 5, 6. See Gomes v. Gaughan, supra.

Sarzen testified that Dr. Cohen’s July, 1961, visit was unannounced, brief, and unexplained. A guard told him that “everybody who commits a sex crime” was so examined. But Dr. Cohen, he claimed, revealed nothing about the purpose of the interview. Dr. Cohen, on the other hand, testified that while he could not remember the interview, he “always” tells inmates his name, who he is, who sent him, “and why I am examining, to determine whether or not they are sexually dangerous, and whether in my opinion they should have a period of observation at the Bridgewater Treatment Center.”

Whether or not Dr. Cohen advised Sarzen of the purpose of the interview, it is undisputed that Sarzen did not see nor learn of the letter thereafter sent by Dr. Cohen to the Superintendent of Concord recommending a • 60-day commitment for further observation and study. The letter also set forth purported facts about Sarzen, of which several are mistaken or are disputed by him. Dr. Cohen erroneously wrote that “[t]he records also reveal two arrests for drunkenness in 1959,” and that “[i]n addition, he was suspected of several attacks on girls in 1961.” [Emphasis supplied.] The county in which the superior court sat was misstated. Sarzen also now disputes Dr. Cohen’s characterization of the rape as “bizarre”, and denies ever admitting to Dr. Cohen that he had committed several assaults.

Possibly the errors came in part from a hasty reading of a document entitled “Official Version of Present Offense” prepared by someone at Concord soon after Sarzen came to be confined there. It details, seemingly from police sources, the rape and assault, and also recounts that the police suspected Sarzen “as being the person who was committing assaults upon women which had plagued them for the previous few weeks.” The chronology, while vague, is apparently 1960 or earlier; possibly Dr. Cohen took “1961” from the date of the document itself. It is unclear from where the misinformation as to drunkenness convictions came. Prison records indicated that Sarzen was evicted from the family home by his father “while the father was experiencing one of his drunken rages.” Possibly the father’s own record was confused with petitioner’s.

Dr. Cohen’s letter, together with a letter from the Superintendent of Concord containing an accurate, if less colorful, summary of Sarzen’s background and record, was sent in August, 1961, to the Superior Court. A motion for a 60-day commitment for examination and diagnosis accompanied these papers. The supporting papers did not indicate sexual misbehavior by Sarzen since his incarceration. Sarzen was not notified of the motion for commitment nor advised of the substance of any of the documents filed with the court. The motion was allowed without hearing on September 12, 1961. Sarzen was not offered, nor provided with, counsel.

He was taken to the Treatment Center for observation, and remained there during September and October, 1961. He testified that he neither asked nor was advised by the staff why he was there, or what the consequences of his examination might be, but conceded that he did learn about such matters from inmates. Sarzen also admitted to receiving, while at Bridgewater, a letter from the public defender who had represented him in the criminal proceeding, which informed him that “because of the sex crime . . . [he] could be committed to Bridgewater.”

Before Sarzen was returned to Concord, Dr. Cohen and Dr. Kozol, another Bridgewater psychiatrist, had filed with the court a report expressing the opinion that Sarzen was sexually dangerous.® Sarzen was not shown nor even notified of the report and, although he asked, was not told that he had been found to be sexually dangerous. He asserts that it was some ten months later that he first learned, from a Concord social worker, that he had been pronounced sexually dangerous.

Seven months after the psychiatrists’ report was filed, the District Attorney petitioned the court, on May 13, 1962, to have Sarzen committed as a sexually dangerous person as defined by Chapter 123A. Nothing further happened until November of 1963, when, at the District Attorney’s request, Sarzen was reexamined (at Concord) by Dr. Cohen. Dr. Cohen then wrote another letter repeating that Sarzen was sexually dangerous, citing much the same history as that in his letter of August, 1961.

Sarzen had been eligible for parole in April, 1962, and April, 1963, but was turned down on both occasions because of the outstanding petition to have him adjudged sexually dangerous. During this time Sarzen unavailingly wrote to state officials in an effort to get his case resolved.

The final commitment hearing took place in the Superior Court on February 24, 1964, more than two years after the psychiatrists’ report had been filed with the court. An attorney for Sarzen was, for the first time, appointed on the day of the hearing. Two psychiatrists testified, a Dr. Weiss, who had examined Sarzen once at Concord two days before the hearing, and Dr. Cohen. Dr. Weiss gave an opinion of sexual dangerousness based on his examination of Sarzen’s pre-1961 record and history, which included Dr. Cohen’s letters, as well as his impressions from the single interview.

Dr. Cohen’s opinion of sexual dangerousness was based on Sarzen’s pre-1961 history and a total of six interviews, four of them during the 60-day Bridge-water commitment in 1961. During a reasonably rigorous cross-examination, it was brought out that he likely erred in believing that Sarzen had two drunkenness convictions in his record. However, Dr. Cohen testified that the error would not affect his conclusion of sexual dangerousness. The two year delay, its affects on petitioner’s parole possibilities, and his attempts to expedite .the hearing were also mentioned. No witnesses were presented for Sarzen. He took no appeal from the Superior Court’s finding of sexual dangerousness.

In 1972, during the pendency of the federal habeas corpus proceedings, Sar-zen petitioned the Superior Court for re-examination and release pursuant to M.G.L. c. 123A, § 9. Following a hearing held in July, 1972, he was found to be no longer a sexually dangerous person and released upon the following conditions: probation for five years during which time he must attend meetings of Alcoholics Anonymous, receive out-patient care at the Treatment Center, and report to his probation officer monthly.

I

The Commonwealth urges that Sarzen has not given its courts an opportunity to pass on his claim and, therefore, has failed to exhaust his state remedies. It reasons that Commonwealth v. Gomes, 355 Mass. 479, 245 N. E.2d 429 (1969) dealt merely with the facial validity of parts of M.G.L. c. 123A, and that the mere anticipation of an unfavorable disposition is not enough to show exhaustion. In Gomes the Supreme Judicial Court, stressing the civil nature of c. 123A proceedings, rejected a due process attack levelled on “the absence of notice and of counsel in connection with the temporary commitment of the defendant to the treatment center.” 355 Mass, at 483, 245 N.E.2d at 432. The court held:

“The provision for a sixty-day examination of a prisoner under c. 123A, § 6, and a formal report, is a reasonable extension of society’s right to such custodial examination .... The statute and our rule [that there may be no punitive aspects to c. 123A confinement] reasonably protect the examined person inasmuch as no indefinite commitment can be made without notice and hearing and the opportunity for the aid of counsel. The preliminary examination, like all the other relevant recorded data, is available to aid the court at that hearing to determine if the defendant is a sexually dangerous person.” 355 Mass, at 485, 245 N.E.2d at 433.

There was no intimation that the court, presented with a different set of facts, would be prepared to recognize constitutional infirmities in actions conforming to the statutory procedure. See also LaMorre v. Superintendent, 347 Mass. 534, 538-39, 199 N.E.2d 204, 206-207 (1964).

When the highest state court has addressed itself to the issues raised, and there are no intervening Supreme Court decisions on point, nor any indication that the state court intends to depart from its former decisions, the exhaustion doctrine does not require a petitioner to present his claims in state court. See, e. g., Walsh v. Picard, 446 F.2d 1209, n. 2 (1st Cir. 1971); Perry v. Blackledge, 453 F.2d 856 (4th Cir. 1971); Lucas v. Michigan, 420 F.2d 259 (6th Cir. 1970); Pratt v. Maine, 408 F. 2d 311 (1st Cir. 1969). The Commonwealth contends that this well-accepted doctrine should not be applied to Sarzen because recourse to the state courts would not have been a futile or empty gesture even in 1971 when the petition was filed. It points to the change in the personnel of the Supreme Judicial Court since Gomes was decided in 1969, and to the likelihood that recent “striking developments” in the procedural due process area might further cause the state court to rethink the position taken in Gomes.

We do not treat these contentions as wholly idle. The magistrate, indeed, although agreeing with petitioner on the merits, concluded that it would be wise to allow the state court to review the matter. He was persuaded by the change in the court’s composition and the likelihood that the Superior Court judge who committed Sarzen did not (and probably could not have been expected to) know what had transpired previously. While there is sense in both propositions, neither is compelling. When a state, or for that matter, federal court has spoken, stability and stare decisis require that litigants and other courts take its pronouncement at face value until formally altered. Even in as rapidly changing a field as constitutional law, two years is too brief a period to presume change. A federal court cannot require a petitioner to go to another court merely because it speculates that new judicial personnel may be persuaded to reach different results.

A federal court should recognize, whenever possible, the often greater ability of strong state courts to deal effectively with state legislative schemes. But we agree with the district court that petitioner, whose grievances go back to proceedings occurring a decade ago, and who has been litigating before us since 1971, is entitled not to be sent to yet another tribunal, no matter how able and enlightened.

II

Sarzen contends that the Commonwealth denied him due process by committing him for 60-days observation without first affording, him a hearing, with counsel, to determine his probable sexual dangerousness. Stated thus narrowly, Sarzen’s claim might seem to be foreclosed by our decision in Gomes v. Gaughan, supra, 471 F.2d at 798, in which we held that a sex conviction gave the Commonwealth sufficient cause to commit an inmate for 60-days psychiatric observation within the term of his sentence.

However, it was made clear in Gomes, citing Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), that c. 123A proceedings must afford due process. Id. 471 F.2d at 800. As one aspect of due process, we mentioned that counsel appointed prior to the 60-day diagnostic commitment might be useful “in identifying false data in an inmate’s file.” Id. 800. Only the peculiarities of Gomes’ case led us to conclude that such a role (or some substitute procedure for verifying the data) was “inapposite”. As it happened, Gomes and previous counsel had had a chance to review the relevant data, and Gomes’ present counsel, having been appointed well before the final commitment hearing, would have enabled Gom-es to use available pre-trial discovery procedures if needed. For these two reasons, we concluded that Gomes received ample opportunity to review and question “the adequacy of the history upon which the diagnosis was made.” Id. 801.

Sarzen’s case is altogether different. Sarzen did not have the assistance of counsel until the very day of his final hearing and, therefore, the pre-trial discovery procedures which we catalogued in Gomes, Id. 800, might as well not have existed. Moreover, there were factual errors in the history relied upon by the psychiatrists in making their initial and later diagnosis. Sarzen, never advised of the data being used, had no opportunity, formal or informal, to question it before the day of final commitment ; he was not even notified of many of the statutorily-prescribed steps being taken to have him committed. Sarzen was walled off from effective participation in his own case until the last day, when, in all probability, anything he might have done was too late.

Nothing in Gomes sanctioned c. 123A procedures falling so short of the fairness and respect for elementary rights which is at the heart of due process. See Mr. Justice Frankfurter concurring in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161, 170, 71 S.Ct. 624, 95 L.Ed. 817 (1951).

We merely recognized in Gomes, as did the Supreme Court recently in Gagnon v. Searpelli, 411 U.S. 778, 788, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973), that due process is "not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed.” Indeed, we reject Sarzen’s contention that due process necessarily required a counselled hearing prior to the 60-day commitment. Since the rape conviction provided sufficient basis for the Commonwealth’s decision to examine him, procedures other than a counselled preliminary hearing might have served adequately to permit examination and correction of the historical data upon which so much of the 60-day psychiatric evaluation was to hinge.

Due process in this setting calls for a fair balancing of the state’s interest in utilizing responsible diagnostic procedures to deal with “highly disturbed persons having manifestly dangerous propensities,” Gomes, supra, 471 F.2d at 800, against the inmate’s right to avoid a grievous loss of liberty and lifetime stigma except under the most rigorous safeguards. Without pretend-íng to deal with every possible situation, we think due process requires at least the following:

1. An inmate is entitled to be notified promptly whenever each of the critical steps imposed by M.G.L. c. 123A, § 6, as a prerequisite to an adjudication of sexual dangerousness, is taken. He may not be kept in the dark concerning actions so vital to his future. The prison superintendent’s request that an inmate be examined to determine if he “may” be sexually dangerous is the first such critical step. Therefore, before the involuntary psychiatric interview, the inmate must be ■ informed at least of its purpose and possible legal consequences. Dr. Cohen insisted that it was his usual practice to do so; and we would assume, as a matter of ethics, that a psychiatrist would feel bound to advise an inmate whether he was appearing in the role of personal counsellor or potential prosecutor. The inmate is also entitled to know if, after examination, the single psychiatrist has recommended that he may be sexually dangerous. He is entitled to be notified when the superintendent or other authority moves for a 60-day commitment and of the disposition of the motion. He is entitled to be informed (as apparently Bridgewater now recognizes) of the outcome of his examination there,

Timely notice of allegations and charges is an elemental aspect of due process. See, e. g., Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). Concealed proceedings, in or out of court, cannot satisfy the requirements of due process. When a prisoner knows what is happening he can take steps, even before the appointment of counsel becomes constitutionally mandated, to protest obvious errors and to secure the assistance of private counsel, family or friends.

2. Prior to the 60-day observational commitment, opportunity must be afforded to the inmate to review and object to the record, history and other assembled facts of his life which psychiatrists may use in evaluating whether he is sexually dangerous. Cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 2d 656 (1973); United States v. Picard, 464 F.2d 215 (1st Cir. 1972). It is obvious from the statutory definition of sexual dangerousness and from the privileged status (see § 5) of psychiatric reports in these proceedings, that an inmate’s history — the background facts found in his prior criminal record and in writeups of social workers and probation officers — are factors crucial to the, psychiatric “diagnosis.” See Tippett v. Maryland, 436 F.2d 1153, 1164 (4th Cir. 1971) (Sobeloff, J. concurring in part, dissenting in part), cert. granted sub nom., Murel v. Baltimore City Criminal Court, 404 U.S. 999, 92 S.Ct. 567, 30 L.Ed.2d 552 (1971), cert. dismissed as improvidently granted, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972). If the present case is typical, a determination of sexual dangerousness may be principally a projection of future conduct from past behavior. Postponing the opportunity to point out purported errors until the day of the final commitment hearing is a mockery of justice. The state psychiatrists will long ago have rendered a written diagnosis based upon the questioned facts; their opinion will have crystallized. Gagnon v. Searpelli, supra, 411 U.S. at 785, 93 S.Ct. 1756. Of course, the inmate’s claims of error need not be accepted if themselves incorrect. But he is entitled to make them known at a time when they can still be effective.

What procedures are best for this fact-verification process we do not attempt to suggest. “The primary responsibility for articulating standards of due process lies with those who have the most intimate knowledge of both the interests of prisoners and the administrative burdens entailed with providing due process . . . .” Palmigiano v. Baxter, 487 F.2d 1280, 1286-1287 (1st Cir. 1973). We do not preclude the possibility that social workers or others in the state’s employ might objectively and fairly review records with the inmate and note in writing his objections and corrections. While counsel might be helpful, especially in the case of disturbed or badly educated inmates, we cannot say that counsel is constitutionally mandated for this purpose prior to the observational commitment of one serving sentence for a sex crime, provided there is a careful and conscientious effort to check out the historical data with the inmate and to see that it is accurate and complete. Alternatively, a preliminary administrative or judicial hearing might be held. We hold simply that the inmate must be afforded a reasonable opportunity to see, examine, and correct, where justified, the historical data which is to be used in reaching the critical opinions on his sexual dangerousness made during the 60-day commitment. In so stating, we do not attempt to consider the Commonwealth’s responsibilities to those who may not be legally competent, nor do we consider the case of an inmate whose sentence is not for a sex crime.

3. The assistance of counsel should be offered to indigent inmates soon after the filing with the court, during the 60-day commitment, of a report of sexual dangerousness by the examining psychiatrists. In Gagnon v. Scarpelli, supra, 411 U.S. at 785, 93 S.Ct. 1756, the Supreme Court described how a parole or probation officer’s role as benevolent counsellor is “compromised” when the officer has decided to recommend revocation of parole or probation. Thereafter, the officer’s view of the probationer’s or parolee’s conduct differs “in this fundamental way” from the latter’s own view. Id, 785, 93 S.Ct. 1756 requiring that the difference be resolved. At that point, both the state and probationer/parolee have interests in accurate fact finding and the informed use of discretion. Closely analogous is the psychiatrists’ role-change when, incident to the 60-day commitment, they declare an inmate to be sexually dangerous. Until then, the psychiatrists may be expected to be relatively open and professionally detached. Indeed, we understand that three-quarters of the persons sent for 60-day observation to Bridgewater are found by the staff not to be sexually dangerous. Before the psychiatrists have rendered an adverse report, we are not persuaded that their role is so greatly at variance with the interests of the inmate as to require the state to assume the burden of appointing counsel for each person being examined or about to be examined.

But once an adverse report is issued, the psychiatrists’ role has changed. They have, in effect, become prosecutors ; their “benevolence” has been “compromised,” Id. 785, 93 S.Ct. 1756, the inmate needs independent assistance, including that of counsel. By then the state is no longer merely engaged in investigation and diagnosis, see Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The filing of a petition for final commitment by the district attorney has become a purely ministerial act. § 6. The inmate faces the certainty of proceedings which can lead to commitment for life. Cf. Lessard v. Schmidt, 349 Supp. 1078, 1099 (E.D.Wis.1972) (three-judge court).

Only if counsel is made available well before the day of the final commitment hearing will an inmate be assured of the effective assistance, and not mere presence, of counsel. Representation at the final hearing may otherwise be a “formality ... a grudging gesture to a ritualistic requirement.” Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966). Counsel may help, in c. 123A, as in juvenile proceedings, “to make skilled inquiry into the fact, . . . and to ascertain whether he has a defense and to prepare and submit it.” In re Gault, 387 U.S. 1, 36, 87 S.Ct. 1428, 1448, 18 L.Ed. 2d 527 (1966). An attorney needs time, in advance of “trial,” to collect and examine records and reports, to talk to his client and to psychiatrists to decide whether a further psychiatric examination or consultation should be sought, and to formulate cross-examination of the state’s experts. Moreover, competent representation before trial in Sarzen’s case would doubtless have gained Sarzen a prompt hearing instead of the altogether unnecessary delay from October 1961, to February 1964. Had the court been made aware of the delay, there can be little doubt that it would have acted promptly.

A danger with procedures of this unique nature is that people assume, because the prisoner is a “patient” and his guardians are “doctors,” that whatever is done will be done in the inmate’s best interest. But, of course, much, perhaps most, of M.G.L. c. 123A is for society’s own protection. Cf. In re Ballay, 482 F.2d 648, 657-658 (D.C.Cir.1973). Rehabilitation and physical removal are goals common to civil and criminal commitment. When, to the person acted upon by the state, the consequences of commitment rather than incarceration appear to be identical, limits must be applied to what is done in the role of parens patriae. In re Gault, supra; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Not all psychiatrists, no more than all juvenile authorities, can be presumed to be competent or well disposed. Moreover, the inherently speculative nature of psychiatric predictions, resulting in confinement not for what one has done but for what one will do, demands more than minimal procedures, particularly when such confinement is accomplished outside the traditional criminal process, with its right to jury trial and other ancient safeguards. See Murel v. Baltimore City Criminal Court, 407 U.S. 355, 364-365, n. 2, 92 S.Ct. 2091, 32 L.Ed.2d 791 (Douglas, J., dissenting); Note, Civil Commitment of the Mentally 111: Theories and Procedures, 79 Harv.L.Rev. 1288 (1966).

Any one faced with indefinite incarceration, whatever his past history, is entitled to formal notice of the steps being taken against him, to know about and challenge the historical data which will accompany him to the Treatment Center for the 60-day observational commitment, and to have the assistance of counsel well before the last day of the proceedings. We hold, therefore, Sarzen was denied the fundamentals of due process guaranteed by the Fourteenth Amendment.

III

We remand the question of relief to the district court. To our knowledge the question of relief was not argued in the district court, and it was not argued before us; and, of course, the parties had no way of anticipating the grounds of our decision. The district court should decide whether the deficiencies in procedural due process do or do not constitute harmless error. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). But the court may also need to consider to what extent, if any, other statutory provisions and the later § 9 proceedings ameliorate the effect of constitutional infirmities on the original § 6 commitment. As petitioner was released in 1972, the Commonwealth and the petitioner may also wish an opportunity to consider a possible consent disposition serving maximally both petitioner's needs and those of the public.

Remanded for proceedings consistent herewith.

      . An evidentiary hearing was earlier held before the federal magistrate, who concluded that Sarzen’s claims, though meritorious, should first be presented to the Massachusetts Supreme Judicial Court. The district court disagreed. Citing Commonwealth v. Gomes, 355 Mass. 479, 245 N.E.2d 429 (1969), infra, it found that recourse to the state court would be futile.

      . It might have done so since, under § 4, if one is found guilty of described sex crimes, including rape, the court, prior to sentencing, may, on its own motion, commit the defendant for 60-days observation to the “Center,” i. e. the Treatment Center established by the Department of Mental Health within the Massachusetts Correctional Institution at Bridgewater. See §§ 1, 2. Of course, the defendant at this stage would already be represented by counsel. At the Center the defendant would be examined for sexual dangerousness by at least two psychiatrists who report their findings to the court. If the defendant is reported to be sexually dangerous, the court then conducts a hearing on this issue, following which, in lieu of imposing sentence, it may order him committed to the Treatment Center for an indeterminate period ranging from one day to life.

      . The Magistrate appears to have believed Sarzen. He found that, “At the time of the interview, Sarzen was unaware of its purpose.”

      . “This man, age 18, was sentenced in the Worcester Superior Court on 1/10/60 to a term of 4-7 years for rape. This crime was of a rather bizarre nature and was accompanied by force, violence and threats of bodily harm. This crime which occurred 10/17/60 had been preceded by a crime similar in nature and with the same pattern. However, in this case subject panicked and ran when the victim screamed. The records also reveal two arrests for drunkenness in 1959. There were two instances of peeping tom activities 8/30/59 and 12/31/58. In addition, he was suspected of several attacks on girls in 1961.
      When interviewed, the subject admitted the crimes of assaults and his peeping Tom activities with all the details described in the police reports.”

      . The Administrative Assistant to the Head of the Treatment Center testified that at the time Sarzen was committed for observation, it was the practice “to inform him orally of the procedures he would be going through.” Nothing written would, however, have been presented. Today a three page information sheet is given to each inmate, describing the sexually dangerous statute, and advising the inmate of the possible consequences of the examination. The sheet indicates that the inmate may, if he wishes, appear at one staff meeting where his case is discussed, and may see any member of the observation staff upon request. A decision, once reached by the psychiatrists, will be reported to him. The inmate is told that “A letter has gone out to your next of lcin informing them of your observation commitment here and giving them the name and telephone number” of the responsible staff member.

      . The report repeated the misinformation of “1959 drunkenness (2).” It referred to the 9/28/60 assault and battery as a “similar offense” to the rape. The basis of the diagnosis was that his “offenses have shown a progression in severity and seriousness Admits rape and violence in the process. A repeater. A danger in terms of his uncontrollable aggressive impulses.”

      . Section 6 provides that when the district attorney files -a petition for final commitment,
      “[H]e shall give notice to the prisoner or to his parents, spouse, issue, next of kin, guardian, or next friend, if it appears to the district attorney that such prisoner is incapable of conducting his contest to the report. The court may require such further notice as it deems necessary to protect the interest of the prisoner, may continue the hearing pending such notice and may appoint a guardian ad litem, if necessary.”
      We assume that this statutory notice requirement was complied with, although there is no evidence on the point in the record. The petition itself consists of two sentences, reciting that two named psychiatrists have certified subject to be sexually dangerous and requesting his commitment.

      . “ . . . [Ajny person committed to the center, or a branch thereof, shall be entitled to have a hearing for examination and discharge once in every twelve months, upon the filing of a written petition by the committed person ... or any friend . . . . The hearing shall be conducted in the same manner as is provided for in sections five and six . . . . ” The statute goes on to provide for annual examinations by the Department of Mental Health of each committed person. If release is ordered, it may be “conditional,” with the individual ordered to report for periodic treatment and subject to supervision by a probation officer. Conditions and terms may be “revised, altered, amended, revoked by the court at any time,” and while conditionally released, the former inmate remains subject to the jurisdiction of the court until discharged. § 9.

      . That Sarzen did not appeal from the Superior Court judgment ordering his commitment does not, of course, necessarily pre-elude habeas corpus relief based on a denial of due process if he exhausted, or should be excused from exhausting state remedies open at the time his petition was filed in federal court. Fay v. Noia, 372 U.S. 391, 398-399, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

      . In tlie cited ease, Justice Frankfurter went on to say, aptly, 341 U.S. at 170, 71 S.Ct. at 648, “fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.”

      . While a probation violator is constitutionally entitled to a. preliminary hearing at the time of his arrest as well as a later, more comprehensive hearing, Gagnon v. Scarpelli, supra, 411 U.S. at 782, 93 S.Ct. 1756, the same principle is not applicable here. No further loss of liberty results from the observational commitment of one already in prison, nor, where a sex-crime was committed, is there any possible dispute as to a reasonable basis for brief psychiatric obser vation.

      . The Hippocratic oath contains the words, “I will prescribe regiment for the good of my patients .... and never do harm to anyone.” One interviewed involuntarily is entitled to be told whether he is being examined for purposes possibly inimical to his own interests. It is not a sufficient answer to say that a sexually dangerous commitment is always for the inmate’s own good. In this nation we do not believe that Big Brother always knows best. An inmate facing loss of liberty may question the benevolence of his prosecutors.

      . “The words ‘sexually dangerous person’ as used in this chapter shall have the following meaning : — Any person whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive behavior and either violence, or aggression by an adult against a victim under the age of sixteen years, and who as a result is likely to attack or otherwise inflict injury on the objects of his uncontrolled or uncontrollable desires.”

      . No constitutional right to hearing and counsel before temporary commitment for examination, pursuant to 18 U.S.C. § 4244, has been recognized. See United States v. Muncaster, 345 F.Supp. 970 (N.D.Ala.1972); Caster v. United States, 319 F.2d 850 (5th Cir. 1963), cert. denied, 376 U.S. 953, 84 S.Ct. 972, 11 L.Ed.2d 973 (1964).

      . By analogy, counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal may be affected.” Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967) (sentencing); see also Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (custodial interrogation); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (post-indictment lineup); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (preliminary hearing). Although the full panoply of criminal due process is not necessarily applicable to c. 123A proceedings, see Gomes v. Gaughan, supra, 471 F.2d at 799, we follow the Supreme Court’s directive in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), not to allow the "civil” label to deflect us from the fundamental interest at stake. See Heryford v. Parker, 396 F.2d 393, 396-397 (10th Cir. 1968).


author: MEDINA, Circuit Judge: LUMBARD, Circuit Judge TIMBERS, Circuit Judge:

text:
    Francis X. BECKER, individually and on behalf of all other taxpayers of the Village of Lynbrook similarly situated, and on behalf of all other taxpayers residing in the incorporated villages of the State of New York similarly situated, et al., Plaintiffs-Appellants, v. Arthur LEVITT, as Comptroller of the State of New York, and Norman F. Gallman, as Commissioner of Taxation & Finance of the State of New York, Defendants-Appellees.
    No. 40, Docket 72-2331.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 19, 1973.
    Decided Dec. 21, 1973.
    Lumbard, Circuit Judge, concurred and filed opinion in which Timbers, Circuit Judge, joined.

      Jay F. Korth, Lynbrook, New York, for plaintiffs-appellants.
    Brenda Soloff, Asst. Atty. Gen., New York City (Samuel A. Hirshowitz, First Asst. Atty. Gen., and Louis J. Lefkowitz, Atty. Gen., of N. Y., New York City, on the brief), for defendants-appellees.
    Before MEDINA, LUMBARD and TIMBERS, Circuit Judges.
   MEDINA, Circuit Judge:

As demands for additional services and the effects of inflation made themselves felt, the State of New York embarked upon a comprehensive program of revenue sharing with the cities, towns, villages and counties of the State of New York. In 1970 the State Legislature made substantial changes in this program for the purpose of giving further aid to these political subdivisions of the state. Supplementing the basic amounts made payable to each county, town, village and city as provided in Section 54, paragraphs (a), (b), and (c), two new paragraphs of Section 54 provided for the payment of further specific payments to each county, town, village and city and an “ [Additional city apportionment” in the amount of 9% of the total state personal income tax collections during the prior fiscal year. This amount is by Section 54(2) (e) of the State Finance Law, McKinney’s Con-sol.Laws, c. 56, made payable “to such cities on the basis of the percentage that the total population of each city bears to the total population of all cities in the state.” It is this Section 54(2) (e), as well as Sections 54(2)(a) and (d), that is under attack in this case as failing to provide the villages of the State, including Lynbrook and their officials and taxpayers the equal protection of the laws required by the Fourteenth Amendment.

The defendants, Arthur Levitt as Comptroller and Norman F. Gallman as Commissioner of Taxation & Finance of the State of New York, moved to dismiss the complaint for lack of subject matter jurisdiction in the federal courts and for failure to state a claim for relief that is discussed in the briefs in terms of lack of standing to maintain the action. Judge Travia, after considering the briefs submitted by the parties and hearing extended oral argument, made an order denying appellants’ application for the appointment of a three-judge court and he dismissed the complaint. There is no opinion below and the dismissal was apparently both because of a lack of standing by appellants to maintain the action and because it was manifest on the face of the complaint that the case did not present for adjudication any substantial federal question sufficient to form a basis for subject matter jurisdiction. The plaintiffs appeal from this order. We do not reach the question of standing as we find the complaint fails to present any substantial federal question and it is thus clear that the court below lacked subject matter jurisdiction.

The substance of the claim asserted by the Village of Lynbrook and its taxpayers and local officials is that they have no objection to the general distribution of state revenues to the counties,towns, villages, and cities in Section 54 except as it provides for additional city apportionment in Sections 54(2) (a), (d), and (e). Appellants characterize this legislation as not only unfair, unjust and discriminatory but “a blatant exaltation of form over substance,” confiscatory and “absolutely arbitrary and capricious,” because thirty-two of the cities are smaller than the Village of Lynbrook, and because as is alleged the Village of Lynbrook furnishes greater services “quantitatively and qualitatively” than do “most of the cities.” It is further alleged in the complaint that appellants have found that the small City of Sherrill with a population of 2986 received in the fiscal year 1972 total state aid in the sum of $97,987, whereas the Village of Lynbrook, with seven times its population received only $120,882.

Nevertheless, we find no substantial federal question in the case for the simple reason that there is a reasonable relation between the statutory scheme, including the challenged provisions for additional aid to the cities, and the avowed purpose of assisting all the local governments, including the cities, which “continue to need special aid to help meet the particular responsibilities assigned to them by statute.” 1970 Legislative Annual, at 202.

I

Very few facets of modern life in America are as perplexing to the average citizen as the maze of overlapping political subdivisions of the establishment by which the states are governed. This is peculiarly true of the State of New York. There are counties and towns, there are villages some of which are incorporated and some of which are not. There are also cities, large and small. The problems these political subdivisions of the State are called upon to solve are legion. There are uplands and wetlands, beaches and estuaries, and an endless number of lakes and rivers, large and small. Highways must be repaired and maintained. Transportation difficulties vary from one locality to another. Schools and libraries must be built, maintained and staffed. Provision must often be made for ambulance and hospital service in varying degrees. In some cities and in some villages civic minded citizens form Beautification Committees and these Committees are busy recommending tree planting programs, parking lot facilities and the removal of unsightly public utility poles, rotting trees and sometimes dilapidated vacant and unoccupied buildings and shacks in which narcotics operators and addicts, as well as vandals and other undesirables gather to bedevil the community. There are often sewage problems of the most serious character. The necessity for regulation of pollution and water supplies is far from a mere speck on the horizon. All these matters, together with the burden of welfare costs, are regulated by a bewildering congeries of laws which are constantly being passed not only by the State Legislature but by ' duly authorized legislative or quasi-legislative bodies in the cities, counties, towns and villages. And the demand for and the furnishing of this multiplicity of services is in a continual state of flux due to rapid and often dramatic shifts in population from one place to another.

The cities, even though some are smaller in population than the villages, have more extensive powers and duties than the villages. Compare General City Law, McKinney's Consol.Laws, c. 21, Section 20 with Village Law, McKinney’s Consol.Laws, c. 64, Section 89. The laws of New York are characterized by the distinctions often drawn between the cities and the villages which reflect the greater needs of the cities, regardless of their size. Cities can bear a greater burden of the welfare costs since cities are expected to participate in the funding of county-wide public welfare districts. The villages do not have similar responsibilities. Social Services Law, McKinney’s Consol.Laws, c. 55, Section 69. Villages are able to contract for police and fire protection, whereas cities cannot do so. See General City Law Section 20, subdivisions 12, 13 and Village Law Section 89, subdivisions 24, 24-a.

To describe the whole spectrum of duties and responsibilities of the cities, counties, towns and villages of the State of New York, and to catalogue the services now being rendered by each of them to the public, together with the new and expanding services not yet being performed in given cases, but clearly contemplated by the nexus of general and local laws of one kind or another, is a task we are wholly unequipped to undertake. But the members of the Legislature of the State of New York have this intimate knowledge of local conditions and in the exercise of their special expertise in such matters they have evolved the whole complicated and comprehensive statutory plan of revenue sharing, of which Sections 54(2) (a), (d), and (e) are but a very small part. We cannot doubt that such revenue sharing is a legitimate function of the Legislature.

Such is the propensity of human beings to believe they are being discriminated against that it is fair to say that the ingenuity of man is unequal to the task of devising a scheme of revenue sharing that will please everybody.

Section 54 must be considered in its entirety. When this is done, we think it is demonstrable that the legislation, and especially the amendments of 1970 that are under attack in this case, bears some rational relationship to a legitimate state purpose.

We find that the inclusion of Sections 54(2) (a), (d), and (e) is neither arbitrary nor capricious, nor does it appear to us to be unreasonable or in any manner confiscatory.

II

In order to determine whether or not a three-judge court should be convened we must study the relevant decisional law. If we find there is some validity to the claim, a three-judge court must decide the constitutional questions involved in the case. City of New York v. Richardson, 473 F.2d 923 (2d Cir.), cert. denied, sub nom. Lavine v. Lindsay, 412 U.S. 950, 93 S.Ct. 3012, 37 L.Ed.2d 1002 (1973). On the other hand, if it appears on examination of the cases that the claim is “essentially frivolous,” “wholly unsubstantial” or “obviously frivolous,” we have no alternative other than to deny the application for a three-judge court and dismiss the case for lack of jurisdiction. Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938).

As will appear in the ensuing discussion, there is absolutely nothing of any legal substance in any of the claims of appellants that the Village of Lynbrook or its officials or taxpayers have, by virtue of Sections 54(2) (a), (d), and (e) of the State Finance Law of New York, been denied the equal protection of the laws guaranteed by the Fourteenth Amendment.

To begin with, the. courts have always been extremely reluctant to interfere with the taxing and spending powers of the legislatures of the states. Allied Stores of Ohio v. Bowers, 358 U. S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959); Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940); Carmichael v. Southern Coal and Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245 (1937); State Board of Tax Commissioners of Indiana v. Jackson, 283 U.S. 527, 51 S.Ct. 540, 75 L.Ed. 1248 (1931); Dane v. Jackson, 256 U.S. 589, 41 S.Ct. 566, 65 L.Ed. 1107 (1921). The traditional equal protection test requires no more than a showing of some rational connection between the statute under attack and a legitimate state purpose. When the circumstances of a particular case compel such a finding, the presumption of constitutionality prevails. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

It is true that the presumption of constitutionality disappears and the courts apply a stricter test and conduct a searching judicial scrutiny where the state statute under attack creates a “suspect” classification or impinges upon constitutionally protected rights. For example, classifications based upon race, national origin, alienage, indigency or illegitimacy are inherently “suspect.” Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 353, 27 L.Ed.2d 264 (1971); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). But it is clear to us that nothing in New York’s comprehensive revenue sharing laws, including the 1970 amendments, calls for the application of this “stricter rule.” Nor do appellants make any such contention.

Affirmed.

LUMBARD, Circuit Judge

(concurring) ;

I agree with Judge Medina that the district court’s dismissal of the complaint must be affirmed, but I wish to state separately my reasons for so agreeing.

Appellants challenge the constitutionality of the New York State Finance Law § 54(2) (a), (d), (e) (McKinney Supp.1973), which grant more state aid proportionately for cities than for villages. Appellants claim that this favoring of cities over villages denies villages and their taxpayers the equal protection of the laws. Seeking to enjoin appellees, the Comptroller and the Commissioner of Taxation and Finance of the State of New York, from distributing any funds under the challenged sections, appellants asked that a three-judge court pursuant to 28 U.S.C. § 2281 be convened. The district court, however, dismissed the complaint.

Under § 2281 we must remand this case with orders to convene a three-judge court unless we find that prior decisions of the Supreme Court have rendered appellants’ claim frivolous. See, e. g., Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973). Although no Supreme Court case that deals with a similar challenge to a state revenue-sharing measure has been cited to us, analogous decisions of the. Court have clearly foreclosed serious consideration of the complaint in this case.

Last term in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), the Court upheld the method by which Texas financed its public schools. The decision makes it clear that only a rational relation between the statutory purpose and the classification employed is necessary to sustain a state finance law. Appellants concede, as they must, that there is a justification for giving proportionately more aid to large cities, like New York and Buffalo, than to villages like Lynbrook. Their complaint is that not all cities need this larger amount of aid and that the classification between cities and villages is needlessly imprecise in determining which political subdivisions need the most financial help.

When stated this way, the claim must fail. It is old learning that under the rational relation standard of judicial review, classifications need not be mathematically precise. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911). This principle has been recently reaffirmed in cases analogous to this one. State welfare schemes have been upheld even though the classifications employed were imprecise. See Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Similarly, classifications in taxation laws have been sustained although the classifications were not perfectly related to the statutory purpose. See Lehnhausen v. Lake Share Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959).

Judge Medina notes that all cities, big or small, have statutory duties not imposed on villages. Appellants claim that New York could more precisely determine the needs and duties of its subdivisions in granting state aid, but under the rational relation standard the state need not employ the most precise classifications imaginable. See San Antonio Independent School District v. Rodriguez, supra, 411 U.S. at 51, 93 S.Ct. 1278. All that is necessary is that a conceivable basis can be perceived for granting more aid to cities than to villages, see McGowan v. Maryland, 366 U. S. 420, 425-426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and that basis has been conceded here.

Accordingly, I concur in affirming the order of the district court.

TIMBERS, Circuit Judge:

I concur in Judge Medina’s opinion and also in Judge Lumbard’s concurring opinion.

      . Appellants’ complaint challenged sections 54(2) (a), (f), (g), as these sections were numbered by chapter 142 of New York Laws of 1970. A 1973 amendment to the State Finance Law changed the section numbers of the challenged portions of the Law but did not otherwise change them.

      . Of course, a compelling state interest would be required if the statute employed a suspect classification or affected a fundamental interest. This is not the case here.

      . This distinguishes City of New York v. Richardson, 473 F.2d 923 (2d Cir. 1973), in which we ordered that that the claim be heard before a three-judge court. There the State of New York offered no justification for laws which required the City of New York pay a proportionately higher percent age of the state’s welfare costs than its percentage of the total state population and no justification was apparent to us. 473 F.2d at 931-932.

      . Like Judge Medina, I do not reach the issue of whether the individual taxpayers have standing to raise the claim at issue here. It is clear that the Village of Lynbrook does not have standing. Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015 (1933); City of New York v. Richardson, 473 F.2d 923, 929 (2d Cir. 1973). The question of village taxpayers’ standing to challenge a state finance law is, however, more difficult, and here, as in Curran v. Lee, 484 F.2d 1348 (2d Cir., Oct. 3, 1973), it is more appropriate to decide the substantive issue instead of the standing issue.