source: Caselaw Access Project

author: Mr. Justice Powell Mr. Justice Brennan,

license: Public Domain

text:
    NEIL, WARDEN v. BIGGERS
    No. 71-586.
    Argued October 18-19, 1972
    Decided December 6, 1972

      Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, BlackmuN, and Rehnquist, JJ., joined. BreN-NAN, J., filed an opinion concurring in part and dissenting in part, in which Douglas and Stewart, JJ., joined, post, p. 201. Marshall, J., took no part in the consideration or decision of the case.

      Bart C. Durham III, Assistant Attorney General of Tennessee, argued the cause for petitioner. With him on the brief was David M. Pack, Attorney General.

      Michael Meltsner argued the cause for respondent. With him on the brief were Jack Greenberg, Anthony G. Amsterdam, Avon N. Williams, Jr., and Z. Alexander Looby.

      Louis J. Lefkowitz, Attorney General of New York, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus, Assistant Attorney General, filed a brief for the Attorney General of New York as amicus curiae urging reversal.

      Shirley Fingerhood, Richard G. Green, Burt Neuborne, and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.
   Mr. Justice Powell

delivered the opinion of the Court.

In 1965, after a jury trial in a Tennessee court, respondent was convicted of rape and was sentenced to 20 years’ imprisonment. The State’s evidence consisted in part of testimony concerning a station-house identification of respondent by the victim. The Tennessee Supreme Court affirmed. Biggers v. State, 219 Tenn. 553, 411 S. W. 2d 696 (1967). On certiorari, the judgment of the Tennessee Supreme Court was affirmed by an equally divided Court. Biggers v. Tennessee, 390 U. S. 404 (1968) (Marshall, J., not participating). Respondent then brought a federal habeas corpus action raising several claims. In reply, petitioner contended that the claims were barred by 28 U. S. C. § 2244(c), which provides in pertinent part:

“In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State court, a prior judgment of the Supreme Court of the United States on an appeal or review by a writ of certiorari at the instance of the prisoner of the decision of such State court, shall be conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right which constitutes ground for discharge in a habeas corpus proceeding, actually adjudicated by the Supreme Court therein .. . ”

The District Court held that the claims were not barred and, after a hearing, held in an unreported opinion that the station-house identification procedure was so suggestive as to violate due process. The Court of Appeals affirmed. 448 F. 2d 91 (1971). We granted certiorari to decide whether an affirmance by an equally divided Court is an actual adjudication barring subsequent consideration on habeas corpus, and, if not, whether the identification procedure violated due process. 405 U. S. 954 (1972).

I

The intended scope of the phrase “actually adjudicated by the Supreme Court” must be determined by reference to the peculiarities of federal court jurisdiction and the context in which § 2244 (c) was enacted. Jurisdiction to hear state prisoner claims on habeas corpus was first expressly conferred on the federal courts by the Judiciary Act of 1867, c. 28, 14 Stat. 385. Thereafter, decisions of this Court established not only that res judicata, was inapplicable, e. g., Salinger v. Loisel, 265 U. S. 224, 230 (1924); Fay v. Noia, 372 U. S. 391, 423 (1963), but also that federal courts were obliged in appropriate cases to redetermine issues of fact and federal law. By the same token, the Court developed a number of limiting principles to restrain open-ended relitigation, among them that a successive habeas corpus application raising grounds rejected in a previous application might be denied without reaching the merits. Salinger v. Loisel, supra, at 231.

In 1948, Congress codified a version of the Salinger rule in 28 U. S. C. § 2244. As redesignated and amended in 1966, § 2244 (b) shields against senseless repetition of claims by state prisoners without endangering the principle that each is entitled, other limitations aside, to a -redetermination of his federal claims by a federal court on habeas corpus. With this in mind, the purpose of § 2244 (c), also enacted in 1966, becomes clear. This subsection embodies a recognition that if this Court has “actually adjudicated” a claim on direct appeal or certiorari, a state prisoner has had the federal redetermi-nation to which he is entitled. A subsequent application for habeas corpus raising the same claims would serve no valid purpose and would add unnecessarily to an already overburdened system of criminal justice.

In this light, we review our cases explicating the disposition “affirmed by an equally divided Court.” On what was apparently the first occasion of an equal division, The Antelope, 10 Wheat. 66 (1825), the Court simply affirmed on the point of division without much discussion. Id., at 126-127. Faced with a similar division during the next Term, the Court again affirmed, Chief Justice Marshall explaining that “the principles of law which have been argued, cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it.” Etting v. Bank of the United States, 11 Wheat. 59, 78 (1826). As was later elaborated, in such cases it is the appellant or petitioner who asks the Court to overturn a lower court’s decree.

“If the judges are divided, the reversal cannot be had, for no order can be made. The judgment of the court below, therefore, stands in full force. It is, indeed, the settled practice in such case to enter a judgment of affirmance; but this is only the most convenient mode of expressing the fact that the cause is finally disposed of in conformity with the action of the court below, and that that court can proceed to enforce its judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed.” Durant v. Essex Co., 7 Wall. 107, 112 (1869).

Nor is an affirmance by an equally divided Court entitled to precedential weight. Ohio ex rel. Eaton v. Price, 364 U. S. 263, 264 (1960). We decline to construe §2244 (c)’s bar as extending to claims on which the judgment of a state court stands because of the absence of a majority position in this Court, and accordingly conclude that the courts below properly reached the merits.

h-i I — I

We proceed, then, to consider respondent’s due process claim. As the claim turns upon the facts, we must first review the relevant testimony at the jury trial and at the habeas corpus hearing regarding the rape and the identification. The victim testified at trial that on the evening of January 22, 1965, a youth with a butcher knife grabbed her in the doorway to her kitchen:

“A. [H] e grabbed me from behind, and grappled— twisted me on the floor. Threw me down on the floor.
“Q. And there was no light in that kitchen?
“A. Not in the kitchen.
“Q. So you couldn’t have seen him then?
“A. Yes, I could see him, when I looked up in his face.
“Q. In the dark?
“A. He was right in the doorway — it was enough light from the bedroom shining through. Yes, I could see who he was.
“Q. You could see? No light? And you could see him and know him then?
“A. Yes.” Tr. of Rec. in No. 237, O. T. 1967, pp. 33-34.

When the victim screamed, her 12-year-old daughter came out of her bedroom and also began to scream. The assailant directed the victim to “tell her [the daughter] to shut up, or I’ll kill you both.” She did so, and was then walked at knifepoint about two blocks along a railroad track, taken into a woods, and raped there. She testified that “the moon was shining brightly, full moon.” After the rape, the assailant ran off, and she returned home, the whole incident having taken between 15 minutes and half an hour.

She then gave the police what the Federal District Court characterized as “only a very general description,” describing him as “being fat and flabby with smooth skin, bushy hair and a youthful voice.” Additionally, though not mentioned by the District Court, she testified at the habeas corpus hearing that she had described her assailant as being between 16 and 18 years old and between five feet ten inches and six feet tall, as weighing between 180 and 200 pounds, and as having a dark brown complexion. This testimony was substantially corroborated by that of a police officer who was testifying from his notes.

On several occasions over the course of the next seven months, she viewed suspects in her home or at the police station, some in lineups and others in showups, and was shown between 30 and 40 photographs. She told the police that a man pictured in one of the photographs had features similar to those of her assailant, but identified none of the suspects. On August 17, the police called her to the station to view respondent, who was being detained on another charge. In an effort to construct a suitable lineup, the police checked the city jail and the city juvenile home. Finding no one at either place fitting respondent’s unusual physical description, they conducted a showup instead.

The showup itself consisted of two detectives walking respondent past the victim. At the victim’s request, the police directed respondent to say “shut up or I’ll kill you.” The testimony at trial was not altogether clear as to whether the victim first identified him and then asked that he repeat the words or made her identification after he had spoken. In any event, the victim testified that she had “no doubt” about her identification. At the habeas corpus hearing, she elaborated in response to questioning.

“A. That I have no doubt, I mean that I am sure that when I — see, when I first laid eyes on him, I knew that it was the individual, because his face— well, there was just something that I don’t think I could ever forget. I believe-
“Q. You say when you first laid eyes on him, which time are you referring to?
“A. When I identified him — when I seen him in the courthouse when I was took up to view the suspect.” App. 127.

We must decide whether, as the courts below held, this identification and the circumstances surrounding it failed to comport with due process requirements.

Ill

We have considered on four occasions the scope of due process protection against the admission of evidence deriving from suggestive identification procedures. In Stovall v. Denno, 388 U. S. 293 (1967), the Court held that the defendant could claim that "the confrontation conducted . . . was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” Id., at 301-302. This, we held, must be determined “on the totality of the circumstances.” We went on to find that on the facts of the case then before us, due process was not violated, emphasizing that the critical condition of the injured witness justified a showup in her hospital room. At trial, the witness, whose view of the suspect at the time of the crime was brief, testified to the out-of-court identification, as did several police officers present in her hospital room, and also made an in-court identification.

Subsequently, in a case where the witnesses made in-court identifications arguably stemming from previous exposure to a suggestive photographic array, the Court restated the governing test:

“[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U. S. 377, 384 (1968).

Again we found the identification procedure to be supportable, relying both on the need for prompt utilization of other investigative leads and on the likelihood that the photographic identifications were reliable, the witnesses having viewed the bank robbers for periods of up to five minutes under good lighting conditions at the time of the robbery.

The only case to date in which this Court has found identification procedures to be violative of due process is Foster v. California, 394 U. S. 440, 442 (1969). There, the witness failed to identify Foster the first time he confronted him, despite a suggestive lineup. The police then arranged a showup, at which the witness could make only a tentative identification. Ultimately, at yet another confrontation, this time a lineup, the witness was able to muster a definite identification. We held all of the identifications inadmissible, observing that the identifications were “all but inevitable” under the circumstances. Id., at 443.

In the most recent case of Coleman v. Alabama, 399 U. S. 1 (1970), we held admissible an in-court identification by a witness who had a fleeting but “real good look” at his assailant in the headlights of a passing car. The witness testified at a pretrial suppression hearing that he identified one of the petitioners among the participants in the lineup before the police placed the participants in a formal line. Mr. Justice Brennan for four members of the Court stated that this evidence could support a finding that the in-court identification was “entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup.” Id., at 5-6.

Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidenti-fication. It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U. S., at 384. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of mis-identification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.

What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U. S. App. D. C. 27, 48, 408 F. 2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U. S. 263, 273 (1967); Mapp v. Ohio, 367 U. S. 643 (1961). Such a rule would have no place in the present case, since both the confrontation and the trial preceded Stovall v. Denno, supra, when we first gave notice that the suggestiveness of confrontation procedures was anything other than a matter to be argued to the jury.

We turn, then, to the central question, whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Applying these factors, we disagree with the District Court’s conclusion.

In part, as discussed above, we think the District Court focused unduly on the relative reliability of a lineup as opposed to a showup, the issue on which expert testimony was taken at the evidentiary hearing. It must be kept in mind also that the trial was conducted before Stovall and that therefore the incentive was lacking for the parties to make a record at trial of facts corroborating or undermining the identification. The testimony was addressed to the jury, and the jury apparently found the identification reliable. Some of the State’s testimony at the federal evidentiary hearing may well have been self-serving in that it too neatly fit the case law, but it surely does nothing to undermine the state record, which itself fully corroborated the identification.

We find that the District Court’s conclusions on the critical facts are unsupported by the record and clearly erroneous. The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. Her description to the police, which included the assailant’s approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough. She had “no doubt” that respondent was the person who raped her. In the nature of the crime, there are rarely witnesses to a rape other than the victim, who often has a limited opportunity of observation. The victim here, a practical nurse by profession, had an unusual opportunity to observe and identify her assailant. She testified at the habeas corpus hearing that there was something about his face “I don’t think I could ever forget.” App. 127.

There was, to be sure, a lapse of seven months between the rape and the confrontation. This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup. Weighing all the factors, we find no substantial likelihood of mis-identification. The evidence was properly allowed to go to the jury.

Affirmed in part, reversed in part, and remanded.

Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Stewart concur,

concurring in part and dissenting in part.

We granted certiorari in this case to determine whether our affirmance by an equally divided Court of respondent’s state conviction constitutes an actual adjudication within the meaning of 28 U. S. C. § 2244 (c), and thus bars subsequent consideration of the same issues on federal habeas corpus. The Court holds today that such an affirmance does not bar further federal relief, and I fully concur in that aspect of the Court’s opinion. Regrettably, however, the Court also addresses the merits and delves into the factual background of the case to reverse the District Court’s finding, upheld by the Court of Appeals, that under the “totality of the circumstances,” the pre-Stovall showup was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. This is an unjustified departure from our long-established practice not to reverse findings of fact concurred in by two lower courts unless shown to be clearly erroneous. See, e. g., Blau v. Lehman, 368 U. S. 403, 408-409 (1962); Faulkner v. Gibbs, 338 U. S. 267, 268 (1949); United States v. Dickinson, 331 U. S. 745, 751 (1947); United States v. Commercial Credit Co., 286 U. S. 63, 67 (1932); United States v. Chemical Foundation, 272 U. S. 1, 14 (1926); Baker v. Schofield, 243 U. S. 114, 118 (1917); Towson v. Moore, 173 U. S. 17, 24 (1899); cf. Boulden v. Holman, 394 U. S. 478, 480-481 (1969).

As the Court recognizes, a pre-Stovall identification obtained as a result of an unnecessarily suggestive showup may still be introduced in evidence if, under the “totality of the circumstances,” the identification retains strong indicia of reliability. After an extensive hearing and careful review of the state court record, however, the District Court found that, under the circumstances of this case, there existed an intolerable risk of misidentification. Moreover, in making this determination, the court specifically found that “the complaining witness did not get an opportunity to obtain a good view of the suspect during the commission of the crime,” “the show-up confrontation was not conducted near the time of the alleged crime, but, rather, some seven months after its commission/’ and the complaining witness was unable to give “a good physical description of her assailant” to the police. App. 41-42. The Court of Appeals, which conducted its own review of the record, upheld the District Court’s findings in their entirety. 448 F. 2d 91, 95 (CA6 1971).

Although this case would seem to fall squarely within the bounds of the “two-court” rule, the Court seems to suggest that the rule is “inapplicable here” because “this is a habeas corpus case in which the facts are contained primarily in the state court record (equally available to us as to the federal courts below) . . . .” Ante, at 193 n. 3. The “two-court” rule, however, rests upon more than mere deference to the trier of fact who has a firsthand opportunity to observe the testimony and to gauge the credibility of witnesses. For the rule also serves as an indispensable judicial “time-saver,” making it unnecessary for this Court to waste scarce time and resources on minor factual questions which have already been accorded consideration by two federal courts and whose resolution is without significance except to the parties immediately involved. Thus, the “two-court” rule must logically apply even where, as here, the lower courts’ findings of fact are based primarily upon the state court record.

The Court argues further, however, that the rule is irrelevant here because, in its view, “the dispute between the parties is not so much over the elemental facts as over the constitutional significance to be attached to them.” Ante, at 193 n. 3. I cannot agree. Even a cursory examination of the Court’s opinion reveals that its concern is not limited solely to the proper application of legal principles but, rather, extends to an essentially de novo inquiry into such “elemental facts” as the nature of the victim’s opportunity to observe the assailant and the type of description the victim gave the police at the time of the crime. And although we might reasonably disagree with the lower courts’ findings as to such matters, the “two-court” rule wisely inhibits us from cavalierly substituting our own view of the facts simply because we might adopt a different construction of the evidence or resolve the ambiguities differently. On the contrary, these findings are “final here in the absence of very exceptional showing of error.” Comstock v. Group of Institutional Investors, 335 U. S. 211, 214 (1948). The record before us is simply not susceptible of such a showing and, indeed, the petitioner does not argue otherwise. I would therefore dismiss the writ of certiorari as improvidently granted insofar as it relates to Question 2 of the Questions Presented.

       The legislative history adds little. The Senate Report states, cryptically, that “[t]his subsection is intended to give a conclusive presumption only to actual adjudications of Federal rights, by the Supreme Court, and not to give such a presumption to mere denials of writs of certiorari.” S. Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966). We conclude from this only that Congress did not expressly address itself to the effect of an affirmance by an equally divided Court. Nor is this surprising in view of the rarity of such divided affirmances in criminal cases.

       We have been aided, and are confirmed in this view, by the thoughtful opinion of Judge Mansfield in United States ex rel. Radich v. Criminal Ct. of City of New York, 459 F. 2d 745 (CA2 1972), pet. for cert. pending sub nom. Ross v. Radich, No. 71-1510.

       The dissent would have us decline to address the merits because the District Court, after an evidentiary hearing, found due process to have been violated, and the Court of Appeals — after reviewing the entire record — found that "the conclusions of fact of the District Judge are [not] clearly erroneous.” 448 F. 2d 91, 95. It is said that we should not depart from “our long-established practice not to reverse findings of fact concurred in by two lower courts unless shown to be clearly erroneous.” Post, at 202. This rule of practice, under which the Court does not lightly overturn the concurrent findings of fact of two lower federal courts, is a salutary one to be followed where applicable. We think it inapplicable here where the dispute between the parties is not so much over the elemental facts as over the constitutional significance to be attached to them. Moreover, this is a habeas corpus case in which the facts are contained primarily in the state court record (equally available to us as to the federal courts below) and where the evidentiary hearing in the District Court purported to be “confined” to two specific issues which we deem not controlling. Of the nine cases cited in the dissenting opinion in support of the rule of practice urged upon us, eight of them involved civil litigation in the federal system. Only one of the cases cited, Boulden v. Holman, 394 U. S. 478 (1969), involved a habeas corpus review and the Court simply held — on the basis of “an independent study of the entire record” — that the conclusion reached by the District Court and the Court of Appeals “was justified.” Id., at 480, 481.

       At trial, one of the police officers present at the identification testified explicitly that the words were spoken after the identification. The victim testified:
      “Q. What physical characteristics, if any, caused you to be able to identify him?
      “A. First of all, — uh—his size, — next I could remember his voice.
      “Q. What about his voice? Describe his voice to the Jury.
      “A. Well, he has the voice of an immature youth — I call it an immature youth. I have teen-age boys. And that was the first thing that made me think it was the boy.” Tr. of Rec. in No. 237, O. T. 1967, p. 17.
      The colloquy continued, with the victim describing the voice and other physical characteristics. At the habeas corpus hearing, the victim and all of the police witnesses testified that a visual identifica-' tion preceded the voice identification. App. 80, 123, 134.

       See Clemons v. United States, 133 U. S. App. D. C. 27, 47, 408 F. 2d 1230, 1250 (1968) (McGowan, J., for the court en banc), cert. denied, 394 U. S. 964 (1969). In the present case, there has been controversy, in our view irrelevant, over whether, as she testified at the habeas corpus hearing, the victim actually made an in-court identification. While we think it evident from the many testimonial links between her out-of-court identification and “the defendant” before her in court that the answer is “yes,” we recognize that if the testimony concerning the out-of-court identification was inadmissible, the conviction must be overturned.

      The District Court stated:
      “In this case it appears to the Court that a line-up, which both sides admit is generally more rehable than a show-up, could have been arranged. The fact that this was not done tended needlessly to decrease the fairness of the identification process to which petitioner was subjected.” App. 42.

       See United States ex rel. Phipps v. Follette, 428 F. 2d 912, 915-916 (CA2) (Friendly, J.), cert. denied, 400 U. S. 908 (1970).

       Respondent attaches some weight to the failure of the victim’s daughter to identify him. Apart from the fact that this does not bear directly on the reliability of her mother’s identification, the girl was only 12 years old and had, as best we can tell, only a very brief view of the assailant from across the room.

       Respondent’s habeas corpus petition raised a number of other claims, including one challenging the legality of his detention at the time he was viewed by the victim. The courts below did not address these claims, nor do we.


author: Me. Justice Douglas Mr. Justice White,

text:
    TRAFFICANTE et al. v. METROPOLITAN LIFE INSURANCE CO. et al.
    No. 71-708.
    Argued November 7, 1972
    Decided December 7, 1972
    Douglas, J., delivered the opinion for a unanimous Court. White, J., filed a concurring opinion, in which BlackmuN and Powell, JJ., joined, post, p. 212.

      Stephen V: Bomse argued the cause for petitioners. With him on the briefs were George H. Clyde, Jr., and Margaret D. Brown.

      Richard J. Kilmartin argued the cause and filed a brief for Metropolitan Life Insurance Co. Robert M. Shea argued the cause and filed a brief for respondent Park-merced Corp.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Griswold, Assistant Attorney General Norman, and Frank E. Schwelb. Briefs of amici curiae urging reversal were filed by Robert Keith Booth, Jr., for the City of Palo Alto, California, and by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Michael Davidson, William Bennett Turner, and Alice Daniel for the NAACP Legal Defense and Educational Fund, Inc.
   Me. Justice Douglas

delivered the opinion of the Court.

Two tenants of Parkmerced, an apartment complex in San Francisco housing about 8,200 residents, filed separate complaints with the Secretary of Housing and Urban Development (HUD) pursuant to § 810 (a) of the Civil Rights Act of 1968,82 Stat. 85,42 U. S. C. § 3610 (a). One tenant is black, one white. Each alleged that the owner of Parkmerced had discriminated against nonwhites on the basis of race in the rental of apartments within the complex in violation of § 804 of the Act.

HUD, pursuant to §810(c) of the Act, notified the appropriate California state agency of the complaints and the state agency, for lack of adequate resources to handle the complaints, referred the charge back to HUD. Since HUD failed to secure voluntary compliance within 30 days, petitioners brought this action in the District Court under § 810 (d) of the Act.

The complaint alleged that the owner had discriminated against nonwhite rental applicants in numerous ways, e. g., making it known to them that they would not be welcome at Parkmerced, manipulating the waiting list for apartments, delaying action on their applications, using discriminatory acceptance standards, and the like.

They — the two tenants — claimed they had been injured in that (1) they had lost the social benefits of living in an integrated community; (2) they had missed business and professional advantages which would have accrued if they had lived with members of minority groups; (3) they had suffered embarrassment and economic damage in social, business, and professional activities from being “stigmatized” as residents of a “white ghetto.”

The District Court did not reach the merits but only held that petitioners were not within the class of persons entitled to sue under the Act. 322 F. Supp. 352. The Court of Appeals affirmed, construing § 810 (a) narrowly to permit complaints only by persons who are the objects of discriminatory housing practices. 446 F. 2d 1158. The case is here on a petition for a writ of certiorari, which we granted, 405 U. S. 915. We reverse the judgment below.

The definition of “person aggrieved” contained in § 810 (a) is in terms broad, as it is defined as “[a]ny person who claims to have been injured by a discriminatory housing practice.”

The Act gives the Secretary of HUD power to receive and investigate complaints regarding discriminatory housing practices. The Secretary, however, must defer to state agencies that can provide relief against the named practice. If the state agency does not act, the Secretary may seek to resolve the controversy by conference, conciliation, or persuasion. If these attempts fail, the complainant may proceed to court pursuant to § 810 (d). Moreover, these rights may be enforced “by civil actions in appropriate United States district courts without regard to the amount in controversy,” if brought within 180 days “after the alleged discriminatory housing practice occurred.” §812 (a). In addition, §813 gives the Attorney General authority to bring a civil action in any appropriate United States district court when he has reasonable cause to believe “that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted” by the Act.

It is apparent, as the Solicitor General says, that complaints by private persons are the primary method of obtaining compliance with the Act. Hackett v. McGuire Bros., Inc., 445 F. 2d 442 (CA3), which dealt with the phrase that allowed a suit to be started “by a person claiming to be aggrieved” under the Civil Rights Act of 1964, 42 U. S. C. § 2000e-5 (a), concluded that the words used showed “a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.” Id., at 446. With respect to suits brought under the 1968 Act, we reach the same conclusion, insofar as tenants of the same housing unit that is charged with discrimination are concerned.

The language of the Act is broad and inclusive. Individual injury or injury in fact to petitioners, the ingredient found missing in Sierra Club v. Morton, 405 U. S. 727, is alleged here. What the proof may be is one thing; the alleged injury to existing tenants by exclusion of minority persons from the apartment complex is the loss of important benefits from interracial associations.

The legislative history of the Act is not too helpful. The key section now before us, i. e., § 810, was derived from an amendment offered by Senator Móndale and incorporated in the bill offered by Senator Dirksen. While members of minority groups were damaged the most from discrimination in housing practices, the proponents of the legislation emphasized that those who were not the direct objects of discrimination had an interest in ensuring fair housing, as they too suffered.

The Assistant Regional Administrator for HUD wrote petitioners’ counsel on November 5, 1970, that “it is the determination of this office that the complainants are aggrieved persons and as such are within the jurisdiction” of the Act. We are told that that is the consistent administrative construction of the Act. Such construction is entitled to great weight. Udall v. Tollman, 380 U. S. 1, 16; Griggs v. Duke Power Co., 401 U. S. 424, 433-434.

The design of the Act confirms this construction. HUD has no power of enforcement. So far as federal agencies are concerned only the Attorney General may sue; yet, as noted, he may sue only to correct “a pattern or practice” of housing discrimination. That phrase “a pattern or practice” creates some limiting factors in his authority which we need not stop to analyze. For, as the Solicitor General points out, most of the fair housing litigation conducted by the Attorney General is handled by the Housing Section of the Civil Rights Division, which has less than two dozen lawyers. Since HUD has no enforcement powers and since the enormity of the task of assuring fair housing makes the role of the Attorney General in the matter minimal, the main generating force must be private suits in which, the Solicitor General says, the complainants act not only on their own behalf but also “as private attorneys general in vindicating a policy that Congress considered to be of the highest priority.” The role of “private attorneys general” is not uncommon in modern legislative programs. See Newman v. Piggie Park Enterprises, 390 U. S. 400, 402; Allen v. State Board of Elections, 393 U. S. 544, 556; Perkins v. Matthews, 400 U. S. 379, 396; J. I. Case Co. v. Borak, 377 U. S. 426, 432. It serves an important role in this part of the Civil Rights Act of 1968 in protecting not only those against whom a discrimination is directed but also those whose complaint is that the manner of managing a housing project affects “the very quality of their daily lives.” Shannon v. United States Dept. of Housing & Urban Dev., 436 F. 2d 809, 818 (CA3).

The dispute tendered by this complaint is presented in an adversary context. Flast v. Cohen, 392 U. S. 83, 101. Injury is alleged with particularity, so there is not present the abstract question raising problems under Art. Ill of the Constitution. The person on the landlord’s blacklist is not the only victim of discriminatory housing practices; it is, as Senator Javits said in supporting the bill, “the whole community,” 114 Cong. Rec. 2706, and as Senator Mondale who drafted § 810 (a) said, the reach of the proposed law was to replace the ghettos “by truly integrated and balanced living patterns.” Id., at 3422.

We can give vitality to § 810 (a) only by a generous construction which gives standing to sue to all in the same housing unit who are injured by racial discrimination in the management of those facilities within the coverage of the statute.

We reverse and remand the case to the District Court, leaving untouched all other questions, including the suggestion that the case against Metropolitan Life Insurance Co. has become moot.

Reversed and remanded.

Mr. Justice White,

with whom Mr. Justice Black-mun and Mr. Justice Powell join,

concurring.

Absent the Civil Rights Act of 1968,1 would have great difficulty in concluding that petitioners’ complaint in this case presented a case or controversy within the jurisdiction of the District Court under Art. Ill of the Constitution. But with that statute purporting to give all those who are authorized to complain to the agency the right also to sue in court, I would sustain the statute insofar as it extends standing to those in the position of the petitioners in this case. Cf. Katzenbach v. Morgan, 384 U. S. 641, 648-649 (1966); Oregon v. Mitchell, 400 U. S. 112, 240, 248-249 (1970). Consequently, I join the Court’s opinion and judgment.

       Section 810 (a) of the Act provides in relevant part:
      “Any person who claims to have been injured by a discriminatory housing practice or who believes that he will be irrevocably injured by a discriminatory housing practice that is about to occur (hereafter 'person aggrieved’) may file a complaint with the Secretary. Complaints shall be in writing and shall contain such information and be in such form as the Secretary requires. Upon receipt of such a complaint the Secretary shall furnish a copy of the same to' the person or persons who allegedly committed or are about to commit the alleged discriminatory housing practice. Within thirty days after receiving a complaint, or within thirty days after the expiration of any period of reference under subsection (c), the Secretary shall investigate the complaint and give notice in writing to the person aggrieved whether he intends to resolve it. If the Secretary decides to resolve the complaint, he shall proceed to try to eliminate or correct the alleged discriminatory housing practice by informal methods of conference, conciliation, and persuasion.”

       The owner at the time the suit was started was Metropolitan Life Ins. Co. After the suit was commenced, Parkmerced Corp. acquired the apartment complex from Metropolitan, and it was joined as a defendant.

      Section 810(c) provides:
      “Wherever a State or local fair housing law provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in this title, the Secretary shall notify the appropriate State' or local agency of any complaint filed under this title which appears to constitute a violation of such State or local fair housing law, and the Secretary shall 'take no further action with respect to such complaint if the appropriate State or local law enforcement official has, within thirty days from the date the alleged offense has been brought to his attention, commenced proceedings in the matter, or, having done so, carries forward such proceedings with reasonable promptness. In no event shall the Secretary take further action unless he certifies that in his judgment, under the circumstances of the particular case, the protection of the rights of the parties or the interests of justice require such action.”

       Section 810 (d) provides in relevant part:
      “If within thirty days after a complaint is filed with the Secretary or within thirty days after expiration of any period of reference under subsection (c), the Secretary has been unable to obtain voluntary compliance with this title, the person aggrieved may, within thirty days thereafter, commence a civil action in any appropriate United States district court, against the respondent named in the complaint, to enforce the rights granted or protected by this title, insofar as such rights relate to the subject of the complaint.”

       Less than 1% of the tenants in this apartment complex are black.

       Note 1, supra.

       Note 4, supra.

       We find it unnecessary to reach the question of standing to sue under 42 U. S. C. § 1982 which is the basis of the third cause of action alleged in the petition but based on the same allegations as those made under the Civil Rights Act of 1968.

       The Dirksen substitute, 114 Cong. Rec. 4570-4573 retained the present language of § 810 (a) which Senator Mondale had previously introduced, id., at 2270, and it was in the bill passed by the Senate, id., at 5992, which the House subsequently passed, id., at 9621.
      The “aggrieved person” provision that was in Senator Mondale’s bill and carried into the Dirksen bill can be found id., at 2271 (§ 11 (a) of the Mondale bill).

       See Hearings before the Subcommittee on Housing and Urban Affairs of the Senate Committee on Banking and Currency on S. 1358, S. 2114, and S. 2280, 90th Cong., 1st Sess. (1967).


author: Mr. Justice Douglas Mr. Chief Justice Burger, Mr. Justice Blackmun,

text:
    NATIONAL LABOR RELATIONS BOARD v. GRANITE STATE JOINT BOARD, TEXTILE WORKERS UNION OF AMERICA, LOCAL 1029, AFL-CIO
    No. 71-711.
    Argued November 13, 1972
    Decided December 7, 1972
    Douglas, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 218. Blackmun, J., filed a dissenting opinion, post, p. 218.

      Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Allan A. Tuttle, and Peter G. Nash.

      Harold B. Roitman argued the cause and filed a brief for respondent.

      Milton Smith, Jerry Kronenberg, and Gerard C. Smetana filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.

      Plato E. Papps, Louis Poulton, and Bernard Dunau filed a brief for the International Association of Machinists and Aerospace Workers, AFL-CIO, as amicus curiae, urging affirmance.
   Mr. Justice Douglas

delivered the opinion of the Court.

Respondent is a union that had a collective-bargaining agreement with an employer which contained a maintenance-of-membership clause providing that members were, as a condition of employment, to remain in good standing “as to payment of dues” for the duration of the contract. Neither the contract nor the Union's constitution or bylaws contained any provision defining or limiting the circumstances under which a member could resign. A few days before the collective agreement expired, the Union membership voted to strike if no agreement was reached by a given date. No agreement was reached in the specified period, so the strike and attendant picketing commenced. Shortly thereafter, the Union held a meeting at which the membership resolved that any member aiding or abetting the employer during the strike would be subject to a $2,000 fine.

About six weeks later, two members sent the Union their letters of resignation. Six months or more later, 29 other members resigned. These 31 employees returned to work.

The Union gave them notice that charges had been made against them and that on given dates the Union would hold trials. None of the 31 employees appeared on the dates prescribed; but the trials nonetheless took place even in the absence of the employees and fines were imposed on all. Suits were filed by the Union to collect the fines. But the outcome was not determined because the employees filed unfair labor practice charges with the National Labor Relations Board against the Union.

The unfair labor practice charged was that the Union restrained or coerced the employees “in the exercise of the rights guaranteed in section 7.” See § 8 (b)(1) of the Act. The Board ruled that the Union had violated § 8 (b)(1). 187 N. L. R. B. 636. The Court of Appeals denied enforcement of the Board’s order. 446 F. 2d 369. The case is here on certiorari, 405 U. S. 987.

We held in NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, that a union did not violate §8 (b)(1) by fining members who went to work during a lawful strike authorized by the membership and by suing to collect the fines. The Court reviewed at length in that opinion the legislative history of §§ 7 and 8(b)(1), and concluded by a close majority vote that the disciplinary measures taken by the union against its members on those facts were within the ambit of the union’s control over its internal affairs. But the sanctions allowed were against those who “enjoyed full union membership.” Id., at 196.

Yet when a member lawfully resigns from the union, its power over him ends. We noted in Scofield v. NLRB, 394 U. S. 423, 429, that if a union rule “invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating §8 (b)(1).” On the facts, we held that Scofield) where fines were imposed on members by the union, fell within the ambit of Allis-Ghalmers. But we drew the line between permissible and impermissible union action against members as follows:

. . §8 (b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.” Id., at 430.

Under § 7 of the Act the employees have “the right to refrain from any or all” concerted activities relating to collective bargaining or mutual aid and protection, as well as the right to join a union and participate in those concerted activities. We have here no problem of construing a union’s constitution or bylaws defining or limiting the circumstances under which a member may resign from the union. We have, therefore, only to apply the law which normally is reflected in our free institutions— the right of the individual to join or to resign from associations, as he sees fit “subject of course to any financial obligations due and owing” the group with which he was associated. Communications Workers v. NLRB, 215 F. 2d 835, 838.

The Scofield case indicates that the power of the union over the member is certainly no greater than the union-member contract. Where a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct. That is to say, when there is a lawful dissolution of a union-member relation, the union has no more control over the former member than- it has over the man in the street.

The Court of Appeals gave weight to the fact that the resigning employees had participated in the vote to strike. We give that factor little weight. The first two members resigned from the Union from one to two months after the strike had begun. The others did so from seven tó 12 months after its commencement. And the strike was still in progress 18 months after its inception. Events occurring after the calling of a strike may have unsettling effects, leading a member who voted to strike to change his mind. The likely duration of the strike may increase the specter of hardship to his family; the ease with which the employer replaces the strikers may make the strike seem less provident. We do not now decide to what extent the contractual relationship between union and member may curtail the freedom to resign. But where, as here, there are no restraints on the resignation of members, we conclude that the vitality of § 7 requires that the member be free to refrain in November from the actions he endorsed in May and that his § 7 rights are not lost by a union’s plea for solidarity or by its pressures for conformity and submission to its regime.

Reversed.

Mr. Chief Justice Burger,

concurring.

I join the Court’s opinion because for me the institutional needs of the Union, important though they are, do not outweigh the rights and needs of the individual. The balance is close and difficult; unions have need for solidarity and at no time is that need more pressing than under the stress of economic conflict. Yet we have given special protection to the associational rights of individuals in a variety of contexts; through § 7 of the Labor Act, Congress has manifested its concern with those rights in the specific context of our national scheme of collective bargaining. Where the individual employee has freely chosen to exercise his legal right to abandon the privileges of union membership, it is not for us to impose the obligations of continued membership.

Mr. Justice Blackmun,

dissenting.

On September 14, 1968, just six days prior to the expiration of the collective-bargaining agreement then in force, the Union membership voted to strike. The strike began September 20. On September 21 the membership unanimously adopted a resolution that anyone aiding or abetting the company during the strike would be subject to a fine not exceeding $2,000. Each of the employees involved here voted for both of these resolutions and participated in the strike. Each was a member of the Union during the period in which the votes were taken and the strike began. Membership was voluntary, and persons who became members were free to resign at any time.

In NLRB v. Allis-Chalmers Mjg. Co., 388 U. S. 175 (1967), this Court held that a union could enforce in a state court a fine levied against a strikebreaking member. The Court noted that, at the time §8 (b)(1) (A) was enacted, "provisions defining punishable conduct and the procedures for trial and appeal constituted part of the contract between member and union and that ‘[t]he courts’ role is but to enforce the contract.’ ” Id., at 182. The scope of § 8 (b)(1)(A) was confined to restraint or coercion visited upon union members in the course of organizational campaigns, id., at 186-188, or by arbitrary and undemocratic union leadership, id., at 188-189, or by coercion that prevented employees not in the bargaining unit from going to work, id., at 189 and n. 25. That section was not viewed as prohibiting “the imposition of fines on members who decline to honor an authorized strike and attempts to collect such fines.” Id., at 195. Finding, as a consequence, no restraint or coercion by the union on the employees’ § 7 rights, the Court sustained the union’s power to enforce the strikebreaking fines in state court.

Today the Court reaches an opposite result on the basis of two facts: “Neither the contract nor the Union’s constitution or bylaws contained any provision defining or limiting the circumstances under which a member could resign”; and the strikebreaking employees resigned before returning to work, thus effecting “a lawful dissolution of [the] union-member relation.” As to the first fact, I am not convinced that the presence of a provision in the union constitution, for example, should always make a difference with respect to the existence of an enforceable, voluntary obligation on the part of an employee to refrain from strikebreaking activity. In fact, it seems likely that the three factors of a member’s strike vote, his ratification of strikebreaking penalties, and his actual participation in the strike, would be far more reliable indicia of his obligation to the union and its members than the presence of boilerplate provisions in a union’s constitution. As to the second fact, while membership in the union may well have implications with respect to the union’s power over the resigned member, I am hard put to understand why this fact, alone, results in restraint or coercion under §8 (b)(1)(A), when the imposition of fines for similar conduct by members, and their enforcement in state courts, does not fall within that section’s prohibition. NLRB v. Allis-Chalmers Mfg. Co., supra. Are an employee’s § 7 rights any more at stake here than they are where, as in Allis-Chalmers, the employee engages in the same activity but stops short of resigning from the union?

I cannot join the Court’s opinion, which seems to me to exalt the formality of resignation over the substance of the various interests and national labor policies that are at stake here. Union activity, by its very nature, is group activity, and is grounded on the notion that strength can be garnered from unity, solidarity, and mutual commitment. This concept is of particular force during a strike, where the individual members of the union draw strength from the commitments of fellow members, and where the activities carried on by the union rest fundamentally on the mutual reliance that inheres in the “pact.” Similar mutual commitments arising from perhaps less compelling circumstances have been held to be legally enforceable. See 1A A. Corbin, Contracts § 198, pp. 210-212 (1963).

A union’s power to enforce these mutual commitments on behalf of its members is of particular importance during the course of a strike. “The economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms, and ‘[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent ....’” 388 U. S., at 181. The 31 employees involved in this case, joined with their then-fellow members, voted to strike as well as to impose' sanctions on those who broke ranks, and participated in the strike. Their votes were voluntary and uncoerced. They had notice of the fines, and raised no objections,, perhaps feeling that the hardships that would befall them during the strike would be compensated by ultimate victory at the bargaining table. They did not attempt to bring the matter to the vote of the membership, a majority of which could have, and later did, terminate the strike.

I am not convinced that in the strike context, where paramount union and employee interests are at stake, union enforcement of this mutual obligation by reasonable fines “invades or frustrates an overriding policy of the labor laws.” Scofield v. NLRB, 394 U. S. 423, 429 (1969). The Court of Appeals concluded that § 7 of the Act, granting employees the right “to refrain from any or all” collective activities, including membership and participation in strikes, was not involved in this case. Emphasizing the meaning of the word “refrain,” the court concluded that “although § 7 gives an employee the right to refuse to undertake and involve himself in union activities, it does not necessarily give him the right to abandon these activities in midcourse once he has undertaken them voluntarily.” 446 F. 2d 369, 373. See H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 39-40 (1947). I believe this notion expressed by the Court of Appeals is applicable in the limited context of the economic strike. In my view, the policy of § 7 would not be frustrated by a holding that an employee could, in the circumstances of this case, knowingly waive his § 7 right to resign from the union and to return to work without sanction. The mutual reliance of his fellow members who abide by the strike for which they have all voted outweighs, in the circumstances here presented, the admitted interests of the individual who resigns to return to work. He may still resign, and he may also return to work, but not without the prospect of having to pay a reasonable union fine for which he voted.

The employees who resigned have not asserted any changed circumstances or undue hardships that would justify their resignations and return to work. Nor do they claim that the fines imposed on them were unreasonable. Perhaps these matters could be asserted before the Board or in defense in the state court proceedings under prevailing state law. As these issues have not been argued in this case, they need not be resolved at this time.

I would affirm the decision below.

       Fines equivalent to a day’s wages for each day worked during the strike were imposed.

       Section 7 provides in relevant part:
      “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities ....’’ 61 Stat. 140, 29 U. S. C. §157.

       Section 8 (b). “It shall be an unfair labor practice for a labor organization or its agents—
      “(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . . .” 61 Stat. 141, 29 U. S. C. § 158 (b).

       Union-security arrangements requiring employees to pay dues, though not requiring membership, have been held not to be an unfair labor practice and therefore not an excuse for the employer to refuse to bargain collectively for such an agreement, at least where state law allows employees that option. NLRB v. General Motors Corp., 373 U. S. 734.

       The Union argues that its practice was to accept resignations of members only during an annual ten-day “escape period,” during which time the employees were allowed to revoke their “dues check-off” authorizations. The Court of Appeals rejected that argument, saying there was no evidence that the employees knew of this practice or that they had consented to its limitation on their right to resign. 446 F. 2d 369, 372.

       There is a mild discrepancy in the record as to whether the vote on the strikebreaking resolution was unanimous. In his first opinion, the trial examiner indicated that the vote was unanimous. (Pet. for Cert. 23a.) In a second opinion, the examiner indicated that there was one dissenting vote.

       The parties stipulated before the trial examiner that all 31 employees participated in the strike vote, and voted in favor of the strike. App. 45. It is less clear whether each of the employees voted in favor of the fine. These are matters that would be resolved in the state court proceedings.

       The Union and the company had no union shop clause in the 1965 collective-bargaining agreement. The Union constitution and bylaws contained no express provision limiting members' rights to resign. In the absence of such a provision, the members could submit voluntary resignations at any time. NLRB v. Mechanical & Allied Production Workers, Local 444, 427 F. 2d 883 (CA1 1970); Communications Workers v. NLRB, 215 F. 2d 835, 838-839 (CA2 1954). And, as the collective-bargaining agreement was no longer in force at the time of the resignations, the retention-of-membership provision was no longer in effect. Finally, the trial examiner found no evidence that the members knew of the Union’s “established practice” of accepting resignations only during the annual 10-day escape period, and in the absence of such knowledge that practice cannot be enforced.

       The reasonableness of the fines imposed by the Union is not in issue here.

       Counsel for respondent stated in oral argument that the Union membership ultimately voted to terminate the strike and accept the company’s offer. Tr. of Oral Arg. 29.

       The decision in Scofield v. NLRB, 394 U. S. 423, 430 (1969), indicated, in dictum, that an employee could avoid a union productivity rule by resigning from membership. That statement. should not be construed to mean that employees can never bind themselves to fulfill union obligations where, as here, the enforcement of that obligation is essential to maintain union discipline during a strike. See Recent Cases, 85 Harv. L. Rev. 1669, 1674-1675, n. 23 (1972); Recent Decisions, 40 Geo. Wash. L. Rev. 330, 338-339 (1971).

       In other contexts it has been held that § 7 rights may be waived. E. g., NLRB v. Shop Rite Foods, Inc., 430 F. 2d 786 (CA5 1970). Indeed, this Court’s opinions in Allis-Chalmers and Scofield implicitly recognize that § 7 rights can be waived. NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 200 (1967) (Black, J., dissenting).

       The General Counsel argued before the trial examiner that the fines imposed were unreasonable, and that the imposition of an unreasonable fine would constitute a violation of § 8 (b) (1) (A). The trial examiner did not pass on this issue, as he concluded that the imposition of any fine on employees who resigned from membership in the Union and returned to work violated § 8 (b) (1) (A). Neither the Board nor the Court of Appeals passed on this issue, and it has not been argued before this Court.


author: Mr. Justice White

text:
    SWENSON, WARDEN v. STIDHAM
    No. 71-224.
    Argued October 11, 1972
    Decided December 7, 1972
    White, J., delivered the opinion for a unanimous Court.

      Kenneth M. Romines, Assistant Attorney General of Missouri, argued the cause for petitioner. With him on the brief was John C. Danforth, Attorney General.

      Mark M. Hennelly, by appointment of the Court, 405 U. S. 913, argued the cause and filed a brief for respondent.
   Mr. Justice White

delivered the opinion of the Court.

This case has a long and tortured history and is not yet concluded. At this juncture the question is whether, absent further state court proceedings to determine the voluntariness of his confession, respondent’s 1955 conviction for murder is vulnerable to attack under the Fourteenth Amendment as construed and applied in Jackson v. Denno, 378 U. S. 368 (1964).

In July 1955, respondent Stidham was convicted of first-degree murder of a fellow inmate during a riot. He was sentenced to life imprisonment. He was represented by experienced counsel who challenged his confession when it was offered at trial. A full evidentiary hearing outside the presence of the jury was held. Stidham’s testimony as to the relevant circumstances surrounding his confession was in sharp conflict with that of the officers. His claim was that he had been subjected to gross physical abuse; the officers denied the claim. At the conclusion of the hearing, the trial judge admitted the confession with the following ruling:

“THE COURT: [Exhibit] 16 and 16-1, it is the Court’s opinion that the matters concerning the statement should be offered in the presence of the Jury, subject of course to any attacks as to its credibility by the Defendant. The Defendant has of course the right to proceed to challenge the voluntariness of the statement and confession, even before the Jury, but it is the Court’s opinion that upon the evidence that has been offered before the Court and outside of the hearing of the Jury, ... the statement is and should be admissible in evidence, subject to further examinations of the witnesses which might be conducted, so we may proceed with Sergeant Little, as to his identification before the Jury of the statement in question, Exhibit 16 and 16-1.
“MR. HENNELLY: In other words, the Court is overruling my Motion, and request of the Court to hold as a matter of law, that those statements were involuntary, is that right?
“THE COURT: That is right. Mr. Sheriff will you bring the Jury back in?”

Stidham’s conviction was affirmed on appeal in State v. Stidham, 305 S. W. 2d 7 (Mo. 1957). A motion to vacate was denied and the denial affirmed, 403 S. W. 2d 616 (Mo. 1966). On a second motion to vacate, however, the Missouri Supreme Court ordered an evi-dentiary hearing in accordance with its newly revised post-conviction procedures. State v. Stidham, 415 S. W. 2d 297 (1967). Among the issues to be heard and decided was whether Stidham’s conviction was infirm under Jackson v. Denno and the Due Process Clause of the Fourteenth Amendment.

In compliance with this order, an evidentiary hearing was held on December 5, 1968, before Judge Godfrey in the Circuit Court of the City of St. Louis. The court heard oral testimony from both Stidham and witnesses offered by the State; it also had before it the transcript of the prior proceedings as well as certain stipulations of fact by the parties. In April 1969, the court issued its opinion, with findings of fact and conclusions of law, denying the relief requested. With respect to the confession issue, the court first concluded that the judge himself at Stidham’s trial had found the confession voluntary and had thus complied with the rule of Jackson v. Denno. As to voluntariness vel non, the court said:

“As to subparagraph b concerning the averment that 'the overwhelming evidence was that the statement was involuntary because of coercion exerted on movant/ this contention was raised and profusely litigated in State vs. Stidham, supra, and the Court finds it no longer open to question here. State vs. Statler, supra; Crawford vs. State, supra.
“It should be noted that the evidence concerning the issue of voluntariness was greatly conflicting and was to be resolved by the trial court in the first instance and the jury in the second having regard to the credibility of the witnesses. This issue should now be considered closed, and this Court finds it to be so.”

This judgment was affirmed in the Missouri Supreme Court. State v. Stidham, 449 S. W. 2d 634 (1970). Agreeing first that the judge at Stidham’s trial had with sufficient clarity found the confession voluntary and admissible in evidence, the court then held that in any event Stidham had been given a new evidentiary hearing and his confession again determined to be voluntary by the circuit court. In its view, the circuit court had “found, as had the previous court, that the oral and written confessions were voluntary . . . .” Based upon its own extensive analysis of the record, the Missouri Supreme Court also concluded that the finding of volun-tariness was “overwhelmingly supported and procedurally and factually the cause meets all the requirements of the federal cases and there has been no invasion of due process.” Id., at 644.

Stidham then resorted to federal habeas corpus, presenting several issues including the confession matter. The United States District Court for the Western District of Missouri, after having examined the full record of the state court proceedings, denied the petition without a hearing but with an opinion holding that there had been no violation of Jackson v. Denno because the state trial judge had satisfactorily found the confession voluntary prior to submitting it to the jury. 328 F. Supp. 1291 (1970).

The Court of Appeals reversed by a divided vote. 443 F. 2d 1327 (CA8 1971). Its understanding of Missouri law at the time of Stidham's trial was that the trial judge was not required to make a finding on voluntariness himself, but was permitted to submit the issue to the jury in the first instance. As the Court of Appeals saw it, this is precisely what the trial court did: the finding that the confession was not involuntary as a matter of law was not an independent assessment of voluntariness but merely a statement that the issue was one for the jury. Because in its view there had never been a reliable judicial determination of the facts and of the ultimate issue of voluntariness, either at trial or in later proceedings, the Court of Appeals reversed the judgment and remanded the case to the District Court, it being contemplated that the State would be allowed “reasonable time to make an error-free determination on the voluntariness of the confession at issue . . . Sigler v. Parker, 396 U. S. 482, 484 (1970). We granted certiorari, 404 U. S. 1058 (1972).

We are first asked to hold that the Court of Appeals erred in concluding that Stidham's trial judge failed to comply with the requirement of the Fourteenth Amendment as construed in Jackson v. Denno that there must be a judicial finding of voluntariness before a challenged confession is submitted to the jury. Petitioner's position is not without force, and begins with the proposition that the Court of Appeals was too much influenced by what the trial judge might have done under the Missouri law prevailing at the time and too little by what he actually did. Even if the controlling rule permitted submission of a challenged confession to the jury without the judge’s own determination of voluntariness, that rule, the argument goes, did not prevent him from resolving the disputed issues of fact prior to admitting the confession into evidence. Obviously, it is said, Stid-ham’s trial judge took the latter course, for (1) he held a full evidentiary hearing outside the presence of the jury, a wholly unnecessary and time-wasting procedure if he was merely to determine if there was a disputed issue as to voluntariness that should be submitted to the jury and (2) having heard the evidence, he denied the motion to suppress and found the confession not involuntary as a matter of law, a conclusion necessarily indicating that the judge resolved the disputed issues against Stidham, for had he believed him rather than the police, it is inconceivable that the confession would have been submitted to the jury. Finally, it is urged that the Missouri courts and the Federal District Court construed the trial judge’s ruling as equivalent to an affirmative finding that the confession was voluntary and that the Court of Appeals should have accepted this interpretation of the proceedings in the lower courts.

The issue, then, is not free from doubt, but it is evident that we need not decide it in this case, for the Court of Appeals erred in another respect that requires reversal of its judgment.

Even if the trial procedure was flawed with respect to the challenged confession, Jackson v. Denno does not entitle Stidham to a new trial if the State subsequently provided him an error-free judicial determination of the voluntariness of his confession — error-free in that the determination was procedurally adequate and substantively acceptable under the- Due Process Clause. Jackson v. Denno, 378 U. S., at 393-396. Here, the Missouri courts, in connection with Stidham’s second motion to vacate his sentence, unquestionably furnished a procedurally adequate evidentiary hearing, and the outcome was adverse to Stidham. But it is said that the St. Louis Circuit Court considered itself bound by prior proceedings and never independently determined that Stidham’s confession was voluntarily given. Reliance is placed on Judge Godfrey’s statement that the evidence was conflicting, that the issue was for the trial court and jury and that “[the] issue should now be considered closed, and this Court finds it to be so.”

This contention is in the teeth of the Missouri Supreme Court’s prior order reopening the entire matter and directing the trial judge to hold a full evidentiary hearing and then “to decide all issues of fact and questions of law . . . .” 415 S. W. 2d, at 298. The Missouri Supreme Court later thought its mandate had been complied with and expressly read the Circuit Court as having “found, as had the previous court, that the oral and written confessions were voluntary . . . .” 449 S. W. 2d, at 644. What is more, the Supreme Court carefully reviewed the record, noting that “the testimony in contradiction of Stidham’s uncorroborated claims was all but overwhelming,” id., at 641, and that the patrol, police and prison officers — “all these witnesses, all produced by the state, categorically or implicitly refuted all of Stidham’s claims of mistreatment, either physical or mental.” Id., at 643-644. The court’s conclusion was that the finding of voluntariness was “overwhelmingly supported” and that there had been no invasion of due process. Id., at 644.

We are not inclined to disagree with the Missouri Supreme Court’s interpretation of the Circuit Court’s opinion and judgment. We also hold that as between the two courts the Jackson v. Denno error, if any, was sufficiently remedied.

This, of course, does not end the matter. A state prisoner is free to resort to federal habeas corpus with the claim that, contrary to a state court’s judgment, his confession was involuntary and inadmissible as a matter of law. The Court of Appeals did not reach this issue. We are asked to decide the question here but it is not our function to deal with this issue in the first instance.

The judgment of the Court of Appeals for the Eighth Circuit is reversed and the cause is remanded for further proceedings consistent with this opinion.

So ordered.


author: Per Curiam.

text:
    ONE LOT EMERALD CUT STONES AND ONE RING v. UNITED STATES
    No. 72-376.
    Decided December 11, 1972
   Per Curiam.

On June 5, 1969, Francisco Farkac Klementova entered the United States without declaring to United States Customs one lot of emerald cut stones and one ring. Klementova was indicted, tried, and acquitted of charges of violating 18 U. S. C. § 545 by willfully and knowingly, with intent to defraud the United States, smuggling the articles into the United States without submitting to the required customs procedures. Following the acquittal, the Government instituted a forfeiture action in the United States District Court, Southern District of Florida, under 18 U. S. C. § 545 and § 497 of the Tariff Act of 1930, 46 Stat. 728, 19 U. S. C. § 1497. Klementova intervened in the proceeding and argued that his acquittal of charges of violating 18 U. S. C. § 545 barred the forfeiture. The District Court held that the forfeiture was barred by collateral estoppel and the Fifth Amendment. The United States Court of Appeals for the Fifth Circuit reversed, holding that a forfeiture action pursuant to 19 U. S. C. § 1497 was not barred by an acquittal of charges of violating 18 U. S. C. § 545. We grant certiorari, affirm, and thereby resolve a conflict among the circuits as to whether a forfeiture is barred in these circumstances.

Collateral estoppel would bar a forfeiture under § 1497 if, in the earlier criminal proceeding, the elements of a § 1497 forfeiture had been resolved against the Government. Ashe v. Swenson, 397 U. S. 436, 443 (1970). But in this case acquittal on the criminal charge did not necessarily resolve the issues in the forfeiture action. For the Government to secure a conviction under § 545, it must prove the physical act of unlawful importation as well as a knowing and willful intent to defraud the United States. An acquittal on the criminal charge may have involved a finding that the physical act was not done with the requisite intent. Indeed, the court that tried the criminal charge specifically found that the Government had failed to establish intent. To succeed in a forfeiture action under § 1497, on the other hand, the Government need only prove that the property was brought into the United States without the required declaration; the Government bears no burden with respect to intent. Thus, the criminal acquittal may not be regarded as a determination that the property was not unlawfully brought into the United States, and the forfeiture proceeding will not involve an issue previously litigated and finally determined between these parties.

Moreover, the difference in the burden of proof in criminal and civil cases precludes application of the doctrine of collateral estoppel. The acquittal of the criminal charges may have only represented “ 'an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.’ ” Helvering v. Mitchell, 303 U. S. 391, 397 (1938). As to the issues raised, it does not constitute an adjudication on the preponderance-of-the-evidence burden applicable in civil proceedings. See Murphy v. United States, 272 U. S. 630 (1926); Stone v. United States, 167 U. S. 178 (1897).

If for no other reason, the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments. “Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.” Helvering v. Mitchell, supra, at 399. See also United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943). Forfeiture under § 1497 is a civil sanction. The provision was originally enacted as § 497 of the Tariff Act of 1922, 42 Stat. 964. The Tariff Act of 1930 re-enacted the forfeiture remedy, 46 Stat. 728, and added § 593, 46 Stat. 751, which became 18 U. S. C. § 545. The forfeiture provision fell within Title IY of the Act, which contained the “Administrative Provisions.” Part III of that title, of which § 1497 was a part, dealt with “Ascertainment, Collection, and Recovery of Duties.” Section 545, on the other hand, was part of the “Enforcement Provisions” and became part of the Criminal Code of the United States. The fact that the sanctions were separate and distinct and were contained in different parts of the statutory scheme is relevant in determining the character of the forfeiture. Congress could and did order both civil and criminal sanctions, clearly distinguishing them. There is no reason for frustrating that design. See Helvering v. Mitchell, supra, at 404.

The § 1497 forfeiture is intended to aid in the enforcement of tariff regulations. It prevents forbidden merchandise from circulating in the United States, and, by its monetary penalty, it provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses. In other contexts we have recognized that such purposes characterize remedial rather than punitive sanctions. See id., at 401; United States ex rel. Marcus v. Hess, supra, at 549-550; Rex Trailer Co. v. United States, 350 U. S. 148, 151-154 (1956). Moreover, it cannot be said that the measure of recovery fixed by Congress in § 1497 is so unreasonable or excessive that it transforms what was clearly intended as a civil remedy into a criminal penalty. Rex Trailer Co. v. United States, supra, at 154. See Murphy v. United States, supra; United States ex rel. Marcus v. Hess, supra.

“Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforcible by civil proceedings .... In spite of their comparative severity, such sanctions have been upheld against the contention that they are essentially criminal and subject to the procedural rules governing criminal prosecutions.” Helvering v. Mitchell, supra, at 400.

The question of whether a given sanction is civil or criminal is one of statutory construction.- Id., at 399. It appears that the § 1497 forfeiture is civil and remedial, and, as a result, its imposition is not barred by an acquittal of charges of violating § 545.

Affirmed.

       “Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper; or
      “Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—
      “Shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      “Proof of defendant’s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.
      “Merchandise introduced into the United States in violation of this section, or the value thereof, to be recovered from any person described in the first or second paragraph of this section, shall be forfeited to the United States.
      “The term ‘United States/ as used in this section, shall not include the Philippine Islands, Virgin Islands, American Samoa, Wake Island, Midway Islands, Kingman Reef, Johnston Island, or Guam.”

       Title 19 U. S. C. § 1497 provides:
      “Any article not included in the declaration and entry as made, and, before examination of the baggage was begun, not mentioned in writing by such person, if written declaration and entry was required, or orally if written declaration and entry was not required, shall be subject to forfeiture and such person shall be liable to a penalty equal to the value of such article.”

       In United States v. Two Hundred and One Fifty-Pound Bags of Furazolidone, No. 71-1329 (1971), cert. denied, 405 U. S. 964 (1972), the Court of Appeals for the Eighth Circuit affirmed a summary judgment on the basis of a previous acquittal of charges of violating § 545 in favor of the owner of property in a forfeiture action commenced by the Government under 18 U. S. C. § 545 and 19 U. S. C. § 1460. The Court of Appeals for the First Circuit agrees with the view of the Fifth Circuit in the present case. See
        Leiser v. United States, 234 F. 2d 648, cert. denied, 352 U. S. 893 (1956).
      We need not, and do not, decide whether an acquittal under § 545 bars a forfeiture under § 545.

       The judge at the criminal trial specifically stated:
      “He is, obviously, a sophisticated dealer in emeralds and other jewelry.

        “I don’t condone nor do I approve, for one minute, what he did in this instance. I think he knew that that jewelry — that that ring and those emeralds should have been declared.
      “He made a declaration of some cigarettes and some whiskey, several other little odd, meager items there, but I’m not persuaded beyond a reasonable doubt that he did what he did with the intent to defraud the United States.”

       The difference in the issues involved in the criminal proceeding, on the one hand, and the forfeiture action, on the other, serves to distinguish Coffey v. United States, 116 U. S. 436 (1886), relied upon by the District Court in the present case. Coffey involved a forfeiture action commenced after an acquittal. This Court noted, in holding the forfeiture barred, that “[t]he information [for forfeiture] is founded on §§3257, 3450 and 3453; and there is no question, on the averments in the answer, that the fraudulent acts and attempts and intents to defraud, alleged in the prior criminal information, and covered by the verdict and judgment of acquittal, embraced all of the acts, attempts and intents averred in the information in this suit.” Id., at 442. The Court specifically distinguished the situation where “a certain intent must be proved to support the indictment, which need not be proved to support the civil action.” Id., at 443. See also Stone v. United States, 167 U. S. 178 (1897).

       The District Court relied upon the following language in United States v. U. S. Coin & Currency, 401 U. S. 715, 718 (1971):
      “But as Boyd v. United States, 116 U. S. 616, 634 (1886), makes clear, 'proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offences committed by him, though they may be civil in form, are in their nature criminal’ for Fifth Amendment purposes.” (Emphasis in United States v. U. S. Coin & Currency.)

      Section 1497 does not result in a forfeiture by reason of the commission of a criminal offense. A forfeiture results from the act of importation without following customs procedures; no criminal offense, much less a criminal conviction, is required. Cf. id., at 718-722.

        One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693 (1965), is likewise inapposite for it dealt with a forfeiture that could not be had without a “determination that the criminal law has been violated.” Id., at 701.


text:
    DILLARD v. INDUSTRIAL COMMISSION OF VIRGINIA et al.
    No. 72-5411.
    Decided December 11, 1972
   Per Curiam.

Appellant brought a class action to challenge the constitutionality of a state regulation that permitted temporary suspension of his workmen’s compensation payments without a prior hearing. He appealed an adverse judgment, but his jurisdictional statement states that after the decision below “an Order was entered by the Commission approving a lump-sum settlement of $4,243.20 in full settlement of [his] individual claim for compensation for his injury which occurred on March 15, 1971.”

In this state of the record, the motion to proceed in forma pauperis is granted, the judgment is vacated, and the case is remanded to the United States District Court for the Eastern District of Virginia to consider whether this case is moot.