author: Mr. Chief Justice Burger

text:
    GROPPI v. LESLIE, SHERIFF
    No. 70-112.
    Argued November 10, 1971
    Decided January 13, 1972

      William M. Coffey argued the cause for petitioner. With him on the brief were Robert J. Lerner, John D. Murray, and Steven H. Steinglass.

      Sverre O. Tinglum, Assistant Attorney General of Wisconsin, argued the cause for respondent. With him on the brief was Robert W. Warren, Attorney General.

      Melvin L. Wulf, Sanford J. Rosen, and Robert H. Friebert filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted the writ of certiorari to review the holding of the Court of Appeals for the Seventh Circuit, denying petitioner relief in habeas corpus proceedings after the District Court had granted relief.

On October 1, 1969, the Assembly of the Wisconsin Legislature passed a resolution citing petitioner for contempt and directing his confinement in the Dane County jail for a period of six months or for the duration of the 1969 Regular Session of the legislature, whichever was shorter. The resolution recited that petitioner had, two days previously, led a gathering of people which, by its presence on the floor of the Assembly during a regular meeting in violation of an Assembly Rule, “prevented the Assembly from conducting public business and performing its constitutional duty.” The resolution contained a finding that petitioner’s actions constituted “disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings” which the Assembly was authorized to punish under the State Constitution and statutes.

The record before us contains little to flesh out the recitations of the contempt resolution with the details of petitioner’s conduct on the day of September 29, 1969. The Wisconsin Supreme Court, in its opinion denying petitioner’s application for habeas corpus, took judicial notice that petitioner’s conduct was designed to protest cuts in the state budget for certain welfare programs, and that the “occupation” of the Assembly chamber by petitioner and his supporters continued from midday to “well toward midnight,” during all of which time the Assembly was prevented from conducting its lawful business.

The contempt resolution was adopted without giving notice to petitioner or affording him an opportunity to present a defense or information in mitigation. A copy of the resolution was then served on petitioner who, at the time the resolution was passed, was already confined in the Dane County jail following his arrest on disorderly conduct charges arising out of the same incident as that underlying the resolution. Petitioner’s confinement after he was served with the resolution was pursuant to its authority.

Petitioner then commenced actions in both state and federal courts contending that his confinement violated his constitutional rights, and seeking his release. Petitioner’s applications for habeas corpus were denied by the Circuit Court for Dane County and the Wisconsin Supreme Court. However, after the state courts had acted, the United States District Court for the Western District of Wisconsin granted petitioner’s federal habeas application. The District Court was of the view that petitioner had been denied due process of law guaranteed by the Fourteenth Amendment by the failure of the Assembly to accord him “some minimal opportunity to appear and to respond to a charge” prior to the imposition of punishment for contempt. On appeal, the Court of Appeals reversed the holding of the District Court; the holding of the panel was adopted by a narrowly divided court on rehearing en banc. We granted certiorari. For the reasons stated herein, we conclude that petitioner was denied due process of law by the procedures employed in punishing him for contempt, and we reverse the judgment of the Court of Appeals.

I

The past decisions of this Court expressly recognizing the power of the Houses of the Congress to punish contemptuous conduct leave little question that the Constitution imposes no general barriers to the legislative exercise of such power. E. g., Jurney v. MacCracken, 294 U. S. 125 (1935); Anderson v. Dunn, 6 Wheat. 204 (1821). There is nothing in the Constitution that would place greater restrictions on the States than on the Federal Government in this regard. See Kilbourn v. Thompson, 103 U. S. 168, 199 (1881). We are therefore concerned only with the procedures that the Due Process Clause of the Federal Constitution requires a state legislature to meet in imposing punishment for contemptuous conduct committed in its presence.

This Court has often recognized that the requirements of due process cannot be ascertained through mechanical application of a formula. See, e. g., Cafeteria Workers v. McElroy, 367 U. S. 886, 894-895 (1961) ; Hannah v. Larche, 363 U. S. 420 (1960). Mr. Justice Frankfurter, in another context, aptly stated that due process “is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. . . .” Joint AntiFascist Committee v. McGrath, 341 U. S. 123, 162-163 (1951) (concurring opinion). Courts must be sensitive to the nature of a legislative contempt proceeding and the “possible burden on that proceeding” that a given procedure might entail. Hannah v. Larche, 363 U. S., at 442. Legislatures are not constituted to conduct full-scale trials or quasi-judicial proceedings and we should not demand that they do so although they possess inherent power to protect their own processes and existence by way of contempt proceedings. For this reason, the Congress of the United States, for example, no longer undertakes to exercise its contempt powers in all cases but elects to delegate that function to federal courts. 52 Stat. 942, 2 U. S. C. §§ 192-194.

The potential for disrupting or immobilizing the vital legislative processes of State and Federal Governments that would flow from a rule requiring a full-blown legislative “trial” prior to the imposition of punishment for contempt of the legislature is a factor entitled to very great weight; this is particularly true where the contemptuous conduct, as here, is committed directly in the presence of the legislative body. The past decisions of this Court strongly indicate that the panoply of procedural rights that are accorded a defendant in a criminal trial has never been thought necessary in legislative contempt proceedings. The customary practice in Congress has been to provide the contemnor with an opportunity to appear before the bar of the House, or before a committee, and give answer to the misconduct charged against him. See Jurney v. MacCracken, 294 U. S., at 143-144; Kilbourn v. Thompson, 103 U. S., at 173, 174; Anderson v. Dunn, 6 Wheat., at 209-211; Marshall v. Gordon, 243 U. S. 521, 532 (1917). Such would appear to have been the general practice in colonial times, and in the early state legislatures. This practice more nearly resembles the traditional right of a criminal defendant to allocution prior to the imposition of sentence than it does a criminal prosecution. See Green v. United States, 365 U. S. 301 (1961).

II

In this case, however, there is no occasion to define or delineate precisely what process is due and must be accorded to a contemnor prior to the legislative imposition of punishment for contemptuous conduct. Here, the Wisconsin Assembly, two days after the conduct had occurred, found petitioner in contempt and sentenced him to confinement without giving him notice of any kind or opportunity to answer. There is no question of his having fled or become otherwise unavailable for, as we have noted, he was confined in the county jail at the time, and could easily have been given notice, if indeed not compelled, to appear before the Assembly. We find little in our past decisions that would shed light on the precise problem, but nothing to give warrant to the summary procedure employed here, coming as it did two days after the contempt. Indeed, we have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are “basic in our system of jurisprudence.” In re Oliver, 333 U. S. 257, 273 (1948). See, e. g., Joint Anti-Fascist Committee v. McGrath, 341 U. S., at 143, 164-165, 171-172, 178, 185 (concurring opinions of Black, Frankfurter, Douglas, and Jackson, JJ.); Cole v. Arkansas, 333 U. S. 196, 201 (1948). We have emphasized this fundamental principle where rights of less standing than personal liberty were at stake. E. g., Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Morgan v. United States, 304 U. S. 1, 18 (1938); Grannis v. Ordean, 234 U. S. 385, 394 (1914). In Mullane v. Central Hanover Trust Co., 339 U. S. 306 (1950), the Court stated:

“Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” 339 U. S., at 313.

Although this language was addressed to judicial adjudication, historical practice would indicate that legislatures themselves have recognized the value of prior notice and hearing in cases of legislative contempt.

In exercise of the right to be heard, however briefly— the length and nature of which would traditionally be left largely to the legislative body — the putative con-temnor might establish, for example, that it was a case of mistaken identity, or, also by way of affirmative defense, that he was mentally incompetent. Other matters in explanation or mitigation might lessen the harshness of the legislative judgment or avoid punishment altogether.

III

Wisconsin, however, argues that the power of a legislature to summarily punish for contempts committed in its immediate presence follows logically from the recognized power of courts in that respect. E. g., Ex parte Terry, 128 U. S. 289 (1888). Even if it be assumed that courts and legislatures are fully analogous in this respect, the recorded cases dealing with the power of a court to impose summary punishment for contempt committed in its immediate presence show that such power has not ordinarily been exercised under conditions such as those here, with a lapse of two days following the event and without notice or opportunity for hearing of any kind. A legislature, like a court, must, of necessity, possess the power to act “immediately” and “instantly” to quell disorders in the chamber if it is to be able to maintain its authority and continue with the proper dispatch of its business. In re Oliver, 333 U. S., at 274-275; Ex parte Terry, 128 U. S., at 308, 310; Johnson v. Mississippi, 403 U. S. 212, 214 (1971); Mayberry v. Pennsylvania, 400 U. S. 455, 463 (1971). Where, however, the contemptuous episode has occurred two days previously, it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable a legislative body to proceed with its business.

The function of the contempt process by a legislative body is perhaps more related to deterrence of those disposed to create disorders than to restoring order. But the deterrence function can equally be served — perhaps even better — by giving notice and bringing the con-temnor before the body and giving opportunity to be heard before being declared in contempt and sentenced.

Where a court acts immediately to punish for contemptuous conduct committed under its eye, the con-temnor is present, of course. There is then no question of identity, nor is hearing in a formal sense necessary because the judge has personally seen the offense and is acting on the basis of his own observations. Moreover, in such a situation, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution. See Levine v. United States, 362 U. S. 610, 613-614 (1960); Brown v. United States, 359 U. S. 41, 52 (1959); United States v. Sacher, 182 F. 2d 416, 418 (CA2 1950), aff’d, 343 U. S. 1 (1952). Even in those circumstances, as we have noted, the conduct and utterance might be found excusable by a legislature or a court should it develop that the contemnor was suffering from some mental disorder rendering him unable to conform his conduct to requirements of the law and conventional behavior. Where, however, a legislative body acts two days after the event, in the absence of the contemnor, and without notice to him, there is no assurance that the members of the legislature are acting, as a judge does in a contempt case, on the basis of personal observation and identification of the contemnor engaging in the conduct charged, nor is there any opportunity whatsoever for him to speak in defense or mitigation, if he is in fact the offender.

Ex parte Terry, supra, does not control this case. There the circuit court acted promptly after the con-temnor — who was a lawyer — had voluntarily absented himself from the courtroom and while he was present in an adjacent room of the court building. This Court concluded that the contemnor could not defeat the jurisdiction of the circuit court to act as soon as reasonably possible to punish the contempt by his voluntary departure from the courtroom. 128 U. S., at 310-311. The Court reasoned that

“The departure of the petitioner from the courtroom to another room, near by, in the same building, was his voluntary act. And his departure, without making some apology for, or explanation of, his conduct, might justly be held to aggravate his offence, and to make it plain that, consistently with the public interests, there should be no delay, upon the part of the court, in exerting its power to punish.” Id., at 311.

Dealing only with the narrow circumstances present in Terry, the Court expressly reserved the question whether the circuit court would have had the power to proceed on a subsequent day without according the con-temnor an opportunity to be heard. Id., at 314. By way of contrast, the resolution in this case was, as we have noted, adopted two days after the event and while petitioner was being detained in the county jail in the same city, and hence available to be served with notice. In Sacher v. United States, 343 U. S. 1 (1952), the Court approved the trial judge’s action in waiting until the end of a nine-month trial to summarily hold defense counsel in contempt for breaches committed during the trial. However, the Court was careful to observe that an immediate holding of contempt during the trial might have prejudiced the defendants in the eyes of the jury or otherwise impeded their advocacy. Moreover, the contemnors were present throughout the course of the trial, were repeatedly warned by the trial judge that their conduct was contemptuous, were advised that they could be called to account later, and - were given an opportunity to speak.

At a very early stage in our history this Court stated that the legislative contempt power should be limited to “[t]he least possible power adequate to the end proposed.” Anderson v. Dunn, 6 Wheat., at 231; In re Oliver, 333 U. S., at 274. While a different result might well follow had the Wisconsin Assembly acted immediately upon occurrence of the contemptuous conduct and while the contemnor was in the chamber, or nearby within the Capitol building, as in Terry, we conclude that the procedures employed in this case were beyond the legitimate scope of that power because of the absence of notice or any opportunity to respond. The judgment of the Court of Appeals is

Reversed.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

       The text of the October 1 resolution was as follows:
      “1969 Spec. Sess. ASSEMBLY RESOLUTION
      “Citing James E. Groppi for contempt of the Assembly and directing his commitment to the Dane county jail.
      “In that James E. Groppi led a gathering of people on September 29, 1969, which by its presence on the floor of the Assembly during a meeting of the 1969 regular session of the Wisconsin Legislature in violation of Assembly Rule 10 prevented the Assembly from conducting public business and performing its constitutional duty; now, therefore, be it
      “Resolved by the Assembly, That the Assembly finds that the above-cited action by James E. Groppi constituted “disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings” and is an offense punishable as a contempt under Section 13.26 (1) (b) of the Wisconsin Statutes and Article IV, Section 8 of the Wisconsin Constitution and therefore:
      “(1) Finds James E. Groppi guilty of contempt of the Assembly; and
      “(2) In accordance with Section 13.26 and 13.27 of the Wisconsin Statutes, orders the imprisonment of James E. Groppi for a period of 6 months, or for the duration of the 1969 regular session, whichever is briefer, in the Dane county jail and directs the sheriff of Dane county to seize said person and deliver him to the jailer of the Dane county jail; and, be it further
      “Resolved, That the Assembly directs that a copy of this resolution be transmitted to the Dane county district attorney for further action by him under Section 13.27 (2) of the Wisconsin Statutes; and, be it further
      “Resolved, That the attorney general is respectfully requested to represent the Assembly in any litigation arising herefrom.”
      Article IV, § 8, Wisconsin Constitution provides in part:
      “Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior . . . .”
      Section 13.26, Wis. Stat. (1967), provides in part:
      “(1) Each house may punish as a contempt, by imprisonment, a breach of its privileges or the privileges of its members . . . for . . .
      “(b) Disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings.
      “(2) The term of imprisonment a house may impose under this section shall not extend beyond the same session of the legislature.”

       On oral argument, counsel for petitioner conceded these facts. The paucity of the record may be attributed to the fact that the District Court acted on the pleadings without an evidentiary hearing.

       Tr. of Oral Arg. 4, 27. Petitioner was subsequently tried in County Court on the disorderly conduct charge. He was discharged by the court after the jury was unable to reach a verdict.

       See generally 2 A. Hinds, Precedents of the House of Representatives, ce. 51, 52; E. Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt (1928).
      Hinds discusses an assault by one reporter on another on the floor of the House on June 11, 1836. The House did not proceed immediately to hold the party in contempt, but appointed a select committee to investigate the matter. The contemnor appeared before the committee and admitted his offense. Before it acted on the report of the committee by passing a contempt resolution, the House brought the contemnor before the Bar of the House. Hinds, supra, at § 1630. Hinds also discusses numerous instances of “direct” contempts committed by members of the House in which the con-temnor was afforded an opportunity to speak in his behalf. See §§ 1642-1643, 1647, 1648, 1650-1653, 1657, 1665.

       See M. Clarke, Parliamentary Privilege in the American Colonies 103-105, 109-111 and n. 47, 112-113 (1943); Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev. 691, 704-705, 707, 711-712, 716, 718, 719-722, 724-725 (1926).

       In the latter case, a legislative body, like a court, might direct a psychiatric examination. It can be assumed that one so disoriented as not to appreciate the nature of his acts would not be punished for contemptuous conduct.

       Under circumstances such as those in this case, neither a court nor a legislative body has any obligation to afford a contemnor a forum to expound his political, economic, or social views; but this does not mean that some brief period to present matter specifically in defense, extenuation, or mitigation is not required.

       The Court has been careful to limit strictly the exercise of the summary contempt power to cases in which it was clear that all of the elements of misconduct were personally observed by the judge. See Johnson v. Mississippi, 403 U. S. 212, 214-215 (1971); In re Oliver, 333 U. S. 257, 275-276 (1948).

       One of the contemnors was a layman who had acted as his own lawyer.

       182 F. 2d, at 428.

        Id., at 418. Although he imposed sentence before hearing the contemnors, the trial judge would, no doubt have modified his action had their statements proved persuasive. See United States v. Galante, 298 F. 2d 72, 76 (CA2 1962) (Friendly, J., concurring and dissenting). Modification of contempt penalties is common where the contemnor apologizes or presents matter in mitigation.

       The present practice of Parliament is described in E. May, The Law, Privileges, Proceedings and Usage of Parliament (17th ed. 1964) as follows:
      “When the contempt is committed in the actual view of either House, as, for example, where a witness prevaricates, gives false evidence or refuses to answer, the House proceeds at once, without hearing the offender, unless by way of apology or to manifest his contrition, to punish him for his contempt.” Id., at 133 (emphasis added).


source: Caselaw Access Project

author: Mr. Justice Douglas, Mr. Justice Stewart,

license: Public Domain

text:
    CALIFORNIA MOTOR TRANSPORT CO. et al. v. TRUCKING UNLIMITED et al.
    No. 70-92.
    Argued November 10, 1971
    Decided January 13, 1972

      Boris H. Lakusta argued the cause for petitioners. With him on the briefs were W. D. Benson, John MacDonald Smith, and Daniel H. Benson.

      Michael N. Khourie argued the cause and filed a brief for respondents.

      Dennis N. Garvey filed a brief for Landmarks Holding Corp. et al. as amici curiae.

   Opinion of the Court by

Mr. Justice Douglas,

announced by Mr. Chief Justice Burger.

This is a civil suit under § 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, for injunctive relief and damages instituted by respondents, who are highway carriers operating in California, against petitioners, who are also highway carriers operating within, into, and from California. Respondents and petitioners are, in other words, competitors. The charge is that the petitioners conspired to monopolize trade and commerce in the transportation of goods in violation of the antitrust laws. The conspiracy alleged is a concerted action by petitioners to institute state and federal proceedings to resist and defeat applications by respondents to acquire operating rights or to transfer or register those rights. These activities, it is alleged, extend to rehearings and to reviews or appeals from agency or court decisions on these matters.

The District Court dismissed the complaint for failure to state a cause of action, 1967 Trade Cas. ¶ 72,298. The Court of Appeals reversed, 432 F. 2d 755. The case is here on a petition for a writ of certiorari, which we granted. 402 U. S. 1008.

The present case is akin to Eastern Railroad Conference v. Noerr Motor Freight, 365 U. S. 127, where a group of trucking companies sued a group of railroads to restrain them from an alleged conspiracy to monopolize the long-distance freight business in violation of the antitrust laws and to obtain damages. We held that no cause of action was alleged insofar as it was predicated upon mere attempts to influence the Legislative Branch for the passage of laws or the Executive Branch for their enforcement. We rested our decision on two grounds:

(1) “In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which "would have no basis whatever in the legislative history of that Act.” Id., at 137.
(2) “The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms.” Id., at 138.

We followed that view in United Mine Workers v. Pennington, 381 U. S. 657, 669-671.

The same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition. See Johnson v. Avery, 393 U. S. 483, 485; Ex parte Hull, 312 U. S. 546, 549.

We conclude that it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-á-vis their competitors.

We said, however, in Noerr that there may be instances where the alleged conspiracy “is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.” 365 U. S., at 144.

In that connection the complaint in the present case alleged that the aim and purpose of the conspiracy was “putting their competitors, including plaintiff, out of business, of weakening such competitors, of destroying, eliminating and weakening existing and potential competition, and of monopolizing the highway common carriage business in California and elsewhere.”

More critical are other allegations, which are too lengthy to quote, and which elaborate on the “sham” theory by stating that the power, strategy, and resources of the petitioners were used to harass and deter respondents in their use of administrative and judicial proceedings so as to deny them “free and unlimited access” to those tribunals. The result, it is alleged, was that the machinery of the agencies and the courts was effectively closed to respondents, and petitioners indeed became “the regulators of the grants of rights, transfers and registrations” to respondents — thereby depleting and diminishing the value of the businesses of respondents and aggrandizing petitioners’ economic and monopoly power. See Note, 57 Calif. L. Rev. 518 (1969).

Petitioners rely on our statement in Pennington that “Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.” 381 U. S., at 670. In the present case, however, the allegations are not that the conspirators sought “to influence public officials,” but that they sought to bar their competitors from meaningful access to adjudicatory tribunals and so to usurp that decisionmaking process. It is alleged that petitioners “instituted the proceedings and actions . . . with or without probable cause, and regardless of the merits of the cases.” The nature of the views pressed does not, of course, determine whether First Amendment rights may be invoked; but they may bear upon a purpose to deprive the competitors of meaningful access to the agencies and courts. As stated in the opinion concurring in the judgment, such a purpose or intent, if shown, would be “to discourage and ultimately to prevent the respondents from invoking” the processes of the administrative agencies and courts and thus fall within the exception to Noerr.

The political campaign operated by the railroads in Noerr to obtain legislation crippling truckers employed deception and misrepresentation and unethical tactics. We said:

“Congress has traditionally exercised extreme caution in legislating with respect to problems relating to the conduct of political activities, a caution which has been reflected in the decisions of this Court interpreting such legislation. All of this caution would go for naught if we permitted an extension of the Sherman Act to regulate activities of that nature simply because those activities have a commercial impact and involve conduct that can be termed unethical.” 365 U. S., at 141.

Yet unethical conduct in the setting of the adjudicatory process often results in sanctions. Perjury of witnesses is one example. Use of a patent obtained by fraud to exclude a competitor from the market may involve a violation of the antitrust laws, as we held in Walker Process Equipment v. Food Machinery & Chemical Corp., 382 U. S. 172, 175-177. Conspiracy with a licensing authority to eliminate a competitor may also result in an antitrust transgression. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 707; Harman v. Valley National Bank, 339 F. 2d 564 (CA9 1964). Similarly, bribery of a public purchasing agent may constitute a violation of § 2 (c) of the Clayton Act, as amended by the Robinson-Patman Act. Rangen, Inc. v. Sterling Nelson & Sons, 351 F. 2d 851 (CA9 1965).

There are many other forms of illegal and reprehensible practice which may corrupt the administrative or judicial processes and which may result in antitrust violations. Misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process. Opponents before agencies or courts often think poorly of the other’s tactics, motions, or defenses and may readily call them baseless. One claim, which a court or agency may think baseless, may go unnoticed; but a pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused. That may be a difficult line to discern and draw. But once it is drawn, the case is established that abuse of those processes produced an illegal result, viz., effectively barring respondents from access to the agencies and courts. Insofar as the administrative or judicial processes are involved, actions of that kind cannot acquire immunity by seeking refuge under the umbrella of “political expression.”

Petitioners, of course, have the right of access to the agencies and courts to be heard on applications sought by competitive highway carriers. That right, as indicated, is part of the right of petition protected by the First Amendment. Yet that does not necessarily give them immunity from the antitrust laws.

It is well settled that First Amendment rights are not immunized from regulation when they are used as an integral part of conduct which violates a valid statute. Giboney v. Empire Storage Co., 336 U. S. 490. In that case Missouri enacted a statute banning secondary boycotts and we sustained an injunction against picketing to enforce the boycott, saying:

“It is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. . . . Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.” 336 U. S., at 502.

In Associated Press v. United States, 326 U. S. 1, we held that the Associated Press was not immune from the antitrust laws by reason of the fact that the press is under the shelter of the First Amendment. We said:

“Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.” Id., at 20.

Accord, Citizen Publishing Co. v. United States, 394 U. S. 131, 139-140. Cf. Eastern States Lumber Assn. v. United States, 234 U. S. 600.

The rationale of those cases, when applied to the instant controversy, makes the following conclusions clear: (1) that any carrier has the right of access to agencies and courts, within the limits, of course, of their prescribed procedures, in order to defeat applications of its competitors for certificates as highway carriers; and (2) that its purpose to eliminate an applicant as a competitor by denying him free and meaningful access to the agencies and courts may be implicit in that opposition.

First Amendment rights may not be used as the means or the pretext for achieving “substantive evils” (see NAACP v. Button, 371 U. S. 415, 444) which the legislature has the power to control. Certainly the constitutionality of the antitrust laws is not open to debate. A combination of entrepreneurs to harass and deter their competitors from having “free and unlimited access” to the agencies and courts, to defeat that right by massive, concerted, and purposeful activities of the group are ways of building up one empire and destroying another. As stated in the opinion concurring in the judgment, that is the essence of those parts of the complaint to which we refer. If these facts are proved, a violation of the antitrust laws has been established. If the end result is unlawful, it matters not that the means used in violation may be lawful.

What the proof will show is not known, for the District Court granted the motion to dismiss the complaint. We must, of course, take the allegations of the complaint at face value for the purposes of that motion. Walker Process Equipment v. Food Machinery & Chemical Corp., 382 U. S., at 174-175. On their face the above-quoted allegations come within the “sham” exception in the Noerr case, as adapted to the adjudicatory process.

Accordingly we affirm the Court of Appeals and remand the case for trial.

So ordered.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Stewart,

with whom Mr. Justice Brennan joins,

concurring in the judgment.

In the Noerr case this Court held, in a unanimous opinion written by Mr. Justice Black, that a conspiracy by railroads to influence legislative and executive action in order to destroy the competition of truckers in the long-haul freight business was wholly immune from the antitrust laws. This conclusion, we held, was required in order to preserve the informed operation of governmental processes and to protect the right of petition guaranteed by the First Amendment. Today the Court retreats from Noerr, and in the process tramples upon important First Amendment values. For that reason I cannot join the Court’s opinion.

In Noerr the defendants were joined together in an effort to induce legislative and executive action. Here, so the complaint alleges, the defendants (petitioners) have joined to induce administrative and judicial action. The difference in type of governmental body might make a difference in the applicability of the antitrust laws if the petitioners had made misrepresentations of fact or law to these tribunals, or had engaged in perjury, or fraud, or bribery. But, contrary to implications in the Court’s opinion, there are in this case no allegations whatever of any such conduct on the part of the petitioners. And, in the absence of such conduct, I can see no difference, so far as the antitrust laws and the First Amendment are concerned, between trying to influence executive and legislative bodies and trying to influence administrative and judicial bodies. NAACP v. Button, 371 U. S. 415; Brotherhood of Railroad Trainmen v. Virginia Bar, 377 U. S. 1; United Mine Workers v. Illinois State Bar Assn., 389 U. S. 217; United Transportation Union v. State Bar of Michigan, 401 U. S. 576.

The Court concedes that the petitioners’ “right of access to the agencies and courts to be heard on applications sought by competitive highway carriers ... is part of the right of petition protected by the First Amendment.” Yet, says the Court, their joint agreement to exercise that right “does not necessarily give them immunity from the antitrust laws.” Ante, at 513. It is difficult to imagine a statement more totally at odds with Noerr. For what that case explicitly held is that the joint exercise of the constitutional right of petition is given immunity from the antitrust laws.

While disagreeing with the Court’s opinion, I would nonetheless remand this case to the District Court for trial. The complaint contains allegations that the petitioners have:

1. Agreed jointly to finance and to carry out and publicize a consistent, systematic and uninterrupted program of opposing ‘with or without probable cause and regardless of the merits’ every application, with insignificant exceptions, for additional operating rights or for the registration or transfer of operating rights, before the California PUC, the ICC, and the courts on appeal.
2. Carried out such agreement (a) by appearing as protestants in all proceedings instituted by plaintiffs and others in like position or by instituting complaints in opposition to applications or transfers or registrations; (b) by establishing a trust fund to finance the foregoing, consisting of contributions monthly in amounts proportionate to each defendant’s annual gross income; (c) by publicizing and making known to plaintiffs and others in like position the foregoing program.

Under these allegations, liberally construed, the respondents are entitled to prove that the real intent of the conspirators was not to invoke the processes of the administrative agencies and courts, but to discourage and ultimately to prevent the respondents from invoking those processes. Such an intent would make the conspiracy “an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.” Eastern Railroad Conference v. Noerr Motor Freight, 365 U. S., at 144.

It is only on this basis that I concur in the judgment of the Court.

        Eastern Railroad Conference v. Noerr Motor Freight, 365 U. S. 127.

       See also United Mine Workers v. Pennington, 381 U. S. 657, 669-671.

       This conclusion, the Court held, was a corollary of our decisions in United States v. Rock Royal Co-operative, 307 U. S. 533, and Parker v. Brown, 317 U. S. 341, holding that when a monopoly or restraint of trade is the result of valid governmental action, there cannot be an antitrust violation.

       In Noerr, the Court emphasized that the defendants’ “unethical” conduct did not affect their antitrust immunity for jointly exerting pressure on the Legislative and Executive Branches, 365 U. S., at 141. See, however, Walker Process Equipment v. Food Machinery & Chemical Corp., 382 U. S. 172.


author: Per Curiam.

text:
    HAINES v. KERNER et al.
    No. 70-5025.
    Argued December 6, 1971
    Decided January 13, 1972

      Stanley A. Bass, by appointment of the Court, 401 U. S. 1008, argued the cause for petitioner. With him on the briefs were Jack Greenberg, James M. Nábrit III, William B. Turner, Alice Daniel, and Max Stern.

      Warren K. Smoot, Assistant Attorney General of Illinois, argued the cause for respondents pro hac vice. With him on the brief were William J. Scott, Attorney General, Joel M. Flaum, First Assistant Attorney General, and James B. Zagel, Morton E. Friedman, and Jayne A. Carr, Assistant Attorneys General.
    Briefs of amici curiae were filed by Charles H. Baron for Boston College Center for Corrections and the Law, and by Julian Tepper and Marshall J. Hartman for the National Law Office of the National Legal Aid and Defender Assn.
   Per Curiam.

Petitioner, an inmate at the Illinois State Penitentiary, Menard, Illinois, commenced this action against the Governor of Illinois and other state officers and prison officials under the Civil Rights Act of 1871,17 Stat. 13, 42 U. S. C. § 1983, and 28 U. S. C. § 1343 (3), seeking to recover damages for claimed injuries and deprivation of rights while incarcerated under a judgment not challenged here. Petitioner’s pro se complaint was premised on alleged action of prison officials placing him in solitary confinement as a disciplinary measure after he had struck another inmate on the head with a shovel following a verbal altercation. The assault by petitioner on another inmate is not denied. Petitioner’s pro se complaint included general allegations of physical injuries suffered while in disciplinary confinement and denial of due process in the steps leading to that confinement. The claimed physical suffering was aggravation of a preexisting foot injury and a circulatory ailment caused by forcing him to sleep on the floor of his cell with only blankets.

The District Court granted respondents’ motion under Rule 12 (b) (6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief could be granted, suggesting that only under exceptional circumstances should courts inquire into the internal operations of state penitentiaries and concluding that petitioner had failed to show a deprivation of federally protected rights. The Court of Appeals affirmed, emphasizing that prison officials are vested with “wide discretion” in disciplinary matters. We granted certiorari and appointed counsel to represent petitioner. The only issue now before us is petitioner’s contention that the District Court erred in dismissing his pro se complaint without allowing him to present evidence on his claims.

Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U. S. 41, 45-46 (1957). See Dioguardi v. Durning, 139 F. 2d 774 (CA2 1944).

Accordingly, although we intimate no view whatever on the merits of petitioner’s allegations, we conclude that he is entitled to an opportunity to offer proof. The judgment is reversed and the case is remanded for further proceedings consistent herewith.

Reversed and remanded.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.


author: Mr. Justice Stewart

text:
    LOVE v. PULLMAN CO.
    No. 70-5033.
    Argued November 16, 1971
    Decided January 17, 1972

      Hugh J. McClearn argued the cause for' petitioner in No. 70-5033. With him on the brief was Gail L. Ireland. Deputy Solicitor General Wallace argued the cause for the United States et al. With him on the brief were Solicitor General Griswold, Acting Assistant Attorney General Norman, David L. Rose, Stanley Hebert, and Julia P. Cooper.

      Edward C. Eppich argued the cause and filed a brief for respondent in both cases.

      Nathaniel B. Jones filed a brief for the National Association for the Advancement of Colored People as amicus curiae urging reversal in No. 70-5033.

      Together with No. 70-37, United States et al. v. Pullman Co., also on certiorari to the same court.

   Mr. Justice Stewart

delivered the opinion of the Court.

A person claiming to be aggrieved by a violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, may not maintain a suit for redress in federal district court until he has first unsuccessfully pursued certain avenues of potential administrative relief. In this litigation the petitioner employee filed a complaint in the United States District Court for the District of Colorado, alleging that his employer, the respondent Pullman Company, had engaged in employment practices violative of Title VII. The court dismissed the complaint, holding that the statutory prerequisites to the maintenance of the suit had not been met. The Court of Appeals affirmed, 430 P. 2d 49, and we granted certiorari to consider the question of federal law presented. 401 U. S. 907.

The petitioner was employed by the Pullman Company as a “porter-in-charge.” In 1963 and again in 1965, he complained to the Colorado Civil Rights Commission, alleging that the porters-in-charge, most of whom, like the petitioner, were Negroes, performed the same functions as conductors, most of whom were white, yet at lower pay. The proceedings of the Colorado Commission terminated in 1965 without reaching a resolution of the controversy satisfactory to the petitioner. On May 23, 1966, the Equal Employment Opportunity Commission received from the petitioner a “letter of inquiry” which complained of this same alleged discrimination. In accord with its usual practice, the Commission treated this letter as a complaint but did not formally file it. Instead, to insure compliance with Title VII’s procedural requirements, EEOC orally advised the Colorado Commission that it had received a complaint from the petitioner. By letter of June 1, 1966, the Colorado Commission informed EEOC that it waived the opportunity to take further action on the petitioner’s grievance, and the EEOC then proceeded with its own investigation. The investigation resulted in a finding of probable cause to believe that the charge of discrimination was true, but the EEOC was unsuccessful in its attempts to obtain Pullman’s voluntary compliance. This lawsuit followed.

The basis for the holding of the Court of Appeals was its finding that the charge of discrimination had not been “filed” with EEOC by the petitioner in conformity with the requirements of the Act. Two such requirements are critical here. Section 706 (b) of the Act, 42 U. S. C. § 2000e-5 (b), provides that where there exists a state or local agency authorized to grant or seek relief against employment discrimination, "no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . .” Section 706 (d), 42 U. S. C. § 2000e-5 (d), requires that the complaint to the EEOC “shall be filed by the person aggrieved within two hundred and ten days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier . . .

The EEOC takes the position that these requirements were fulfilled by the procedure followed here, whereby a charge filed with the EEOC prior to exhaustion of the state remedy was referred by it to the state agency, and then formally filed once the state agency indicated that it would decline to take action. The Court of Appeals, on the other hand, regarded this procedure as a “manipulation of the filing date,” not contemplated or permitted by the statute or by the EEOC regulations then in force.

We hold that the filing procedure followed here fully complied with the intent of the Act, and we thus reverse the judgment of the Court of Appeals. Nothing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself, nor is there any requirement that the complaint to the state agency be made in writing rather than by oral referral. Further, we cannot agree with the respondent’s claim that the EEOC may not properly hold a complaint in “suspended animation,” automatically filing it upon termination of the state proceedings.

We see no reason why further action by the aggrieved party should be required. The procedure complies with the purpose both of § 706 (b), to give state agencies a prior opportunity to consider discrimination complaints, and of § 706 (d), to ensure expedition in the filing and handling of those complaints. The respondent makes no showing of prejudice to its interests. To require a second “filing” by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.

The judgment is

Reversed.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of these cases.

       §§ 701-716 (c), 42 U. S. C. §§ 2000e to 2000e-15.

       Title 29 CFR §1601.11 (b) (1971) provides:
      “[A] charge is deemed filed when the Commission receives from the person aggrieved a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of. . . .”

       The Court of Appeals first adopted the reasoning of the District Court: The state commission had terminated the proceedings initiated by petitioner in July 1965, and petitioner failed to complain to the EEOC within the 30-day time period prescribed in §706 (d), 42 U. S. C. § 2000e-5 (d). Regarding this statutory time requirement as jurisdictional, the District Court dismissed the complaint. When the Government entered the case on a petition for rehearing to the Court of Appeals, it pointed out that Title VII had not gone into effect at the time of the events underlying petitioner’s applications to the state commission. Thus, the state commission’s termination of proceedings in 1965 did not toll the 30-day period for appeal to the EEOC.

       Respondent cites the following language of § 706 (b), 42 U. S. C. § 2000e-5 (b):
      “If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.”
      Nothing in this language implies that a state proceeding may not be commenced by an oral complaint; the statute guards against state proceedings that are difficult to commence, not against ones that are easily begun.

       The Court of Appeals expressed concern that if EEOC could ignore the requirement of 29 CFR § 1601.11 (b) (1971) that a charge is deemed filed when received, it could file any complaint whenever it chose, thereby nullifying the various statutory time requirements. But the statutory prohibition of § 706 (b) against filing charges that have not been referred to a state or local authority necessarily creates an exception to the regulation requiring filing on receipt.

       See Comment, A Look at Love v. Pullman, 37 U. Chi. L. Rev. 181, 188 (1969). When a member of EEOC, rather than an aggrieved party, files a complaint with EEOC, “the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days ... to remedy the practice alleged.” Title VII, §706 (c), 42 U. S. C. §2000^5 (c). It is clear that Congress found nothing wrong, in this circumstance, with EEOC’s holding the charge in abeyance until a state agency is given the chance to act. There is no reason to think that Congress would disapprove this procedure when complaints are initiated by aggrieved parties; the difference in wording between §706 (b) and § 706 (c) seems to be only a reflection of the different persons who initiate the charge. Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1214 n. 117 (1971).


author: Mr. Justice Marshall Mr. Justice Douglas,

text:
    TRBOVICH v. UNITED MINE WORKERS OF AMERICA et al.
    No. 71-119.
    Argued November 18, 1971
    Decided January 17, 1972

      Joseph L. Rauh, Jr., argued the cause for petitioner. With him on the briefs were John Silard, Elliott C. Lichtman, Joseph A. Yablonski, and Clarice R. Feldman.

      Solicitor General Griswold argued the cause for respondent Secretary of Labor. With him on the brief were Assistant Attorney General Gray, Harry R. Sachse, Walter H. Fleischer, Raymond D. Battocchi, Richard F. Schubert, George T. Avery, and Beate Bloch. Edward L. Carey, Harrison Combs, Willard P. Owens, Charles L. Widman, and M. E. Boiarsky filed a brief for respondent United Mine Workers of America.

      Melvin L. Wulf and Sanford Jay Rosen filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
   Mr. Justice Marshall

delivered the opinion of the Court.

The Secretary of Labor instituted this action under § 402 (b) of the Labor-Management Reporting and Disclosure Act of 1950 (LMRDA), 73 Stat. 534, 29 U. S. C. § 482 (b), to set aside an election of officers of the United Mine Workers of America (UMWA), held on December 9, 1969. He alleged that the election was held in a manner that violated the LMRDA in numerous respects, and he sought an order requiring a new election to be held under his supervision.

Petitioner, a member of the UMWA, filed the initial complaint with the Secretary that eventually led him to file this suit. Petitioner now seeks to intervene in the litigation, pursuant to Fed. Rule Civ. Proc. 24 (a), in order (1) to urge two additional grounds for setting aside the election, (2) to seek certain specific safeguards with respect to any new election that may be ordered, and (3) to present evidence and argument in support of the Secretary’s challenge to the election. The District Court denied his motion for leave to intervene, on the ground that the LMRDA expressly stripped union members of any right to challenge a union election in the courts, and gave that right exclusively to the Secretary. Hodgson v. United Mine Workers, 51 F. R. D. 270 (1970). The Court of Appeals affirmed on the basis of the District Court opinion, 77 L. R. R. M. 2496 (CADC 1971). We granted certiorari to determine whether the LMRDA imposes a bar to intervention by union members under Rule 24, in a suit initiated by the Secretary. Post, p. 880. We conclude that it does not, and we remand the case to the District Court with directions to permit intervention.

I

The LMRDA was the first major attempt of Congress to regulate the internal affairs of labor unions. Having conferred substantial power on labor organizations, Congress began to be concerned about the danger that union leaders would abuse that power, to the detriment of the rank-and-file members. Congress saw the principle of union democracy as one of the most important safeguards against such abuse, and accordingly included in the LMRDA a comprehensive scheme for the regulation of union elections.

Title IV of the statute establishes a set of substantive rules governing union elections, LMRDA § 401, 29 U. S. C. § 481, and it provides a comprehensive procedure for enforcing those rules, LMRDA § 402, 29 U. S. C. § 482. Any union member who alleges a violation may initiate the enforcement procedure. He must first exhaust any internal remedies available under the constitution and bylaws of his union. Then he may file a complaint with the Secretary of Labor, who “shall investigate” the complaint. Finally, if the Secretary finds probable cause to believe a violation has occurred, he “shall . . . bring a civil action against the labor organization” in federal district court, to set aside the election if it has already been held, and to direct and supervise a new election. With respect to elections not yet conducted, the statute provides that existing rights and remedies apart from the statute are not affected. But with respect to an election already conducted, “[t]he remedy provided by this subchapter . . . shall be exclusive.” LMRDA §403, 29 U. S. C. §483.

The critical statutory provision for present purposes is § 403, 29 U. S. C. § 483, making suit by the Secretary the "exclusive" post-election remedy for a violation of Title IV. This Court has held that § 403 prohibits union members from initiating a private suit to set aside an election. Calhoon v. Harvey, 379 U. S. 134, 140 (1964). But in this case, petitioner seeks only to participate in a pending suit that is plainly authorized by the statute; it cannot be said that his claim is defeated by the bare language of the Act. The Secretary, ;relying on legislative history, argues that § 403 should be construed to bar intervention as well as initiation of a suit by the members. In his view the legislative history shows that Congress deliberately chose to exclude union members entirely from any direct participation in judicial enforcement proceedings under Title IV. The Secretary’s argument rests largely on the fact that two alternative proposals figured significantly in the legislative history of Title IV, and each of these rejected bills would have authorized individual union members to bring suit. In the words of the District Court:

“We think the fact that Congress considered two alternatives — suit by union members and suit by the Secretary — and then chose the latter alternative and labelled it ‘exclusive’ deprives this Court of jurisdiction to permit the former alternative via the route of intervention.” 51 F. R. D., at 272.

That argument misconceives the legislative history and misconstrues the statute. A review of the legislative ''history shows that Congress made suit by the Secretary the exclusive post-election remedy for two principal reasons: (1) to protect unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) to centralize in a single proceeding such litigation as might be warranted with respect to a single election. Title IV as enacted serves these purposes by referring all complaints to the Secretary so that he can screen out frivolous ones, and by consolidating all meritorious complaints in a single proceeding, the Secretary’s suit in federal district court. The alternative proposals were rejected simply because they failed to accomplish these objectives. There is no evidence whatever that Congress was opposed to participation by union members in the litigation, so long as that participation did not interfere with the screening and centralizing functions of the Secretary.

The enforcement provisions of Title IV originated in a bill introduced by Senator John Kennedy in 1958. That bill, S. 3751, provided for suit by the Secretary as the exclusive remedy for violation of the rules relating to union elections. Senator Kennedy described the bill as a "modest proposal,” one which would protect union members “without undue interference in the internal affairs of what I believe are essentially private institutions — that is, American trade unions.” 104 Cong. Rec. 7954. The Senate passed an expanded version of the bill, S. 3974, which retained the original enforcement scheme, and reflected a continuing legislative interest in minimizing judicial interference with union elections. See S. Rep. No. 1684, 85th Cong., 2d Sess., 12-15 (1958). That bill was defeated in the House of Representatives, 104 Cong. Rec. 18288, but essentially the same enforcement scheme was retained the following year in S. 1555, the Kennedy-Ervin bill which was ultimately passed by both Houses and enacted into law.

In the Senate, the principal advocate of a provision authorizing individual union members to bring suit was Senator Barry Goldwater. He introduced a bill, S. 748, endorsed by the Administration, that would have authorized both the Secretary and the members to file suit to enforce the rules relating to union elections. During the Senate Hearings, a number of witnesses compared the enforcement provisions of the two bills. The primary objection to the provision for member suits in the Goldwater bill was that it might lead to multiple litigation in multiple forums, and thereby impose on the union the severe burden of mounting multiple defenses. A related objection was that the Goldwater bill failed to interpose a screening mechanism between the dissatisfied union member and the courtroom, and thereby imposed on the union the burden of responding to frivolous complaints.

Perhaps the most vehement opposition to the Goldwater bill came from the AFL-CIO. Its spokesman, Andrew Biemiller, testified that "[t]he bill would result in placing union officers in a straitjacket since they could be haled into court, virtually without limitation, to defend union policies or programs in suits brought against them by any dissident union member [or] minority group." Hearings on S. 505 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 86th Cong., 1st Sess., 567 (1959); see also id., at 578-579 (analysis of S. 748 by Arthur J. Goldberg, then special counsel to the AFL-CIO). Multiple litigation and unnecessary harassment, then, were seen as the principal evils of the provision for member suits. And it was precisely those evils that the draftsmen of the Kennedy-Ervin bill sought to avoid. According to Professor Archibald Cox, who was a principal consultant to the draftsmen, the Kennedy proposal made suit by the Secretary the exclusive post-election remedy in order to "centralize control of the proceedings," to adjudicate the validity of an election "once and for all in one forum," and to avoid "unnecessary harassment of the union on one side and . . . friendly suits aimed at foreclosing the Secretary’s action on the other." Id., at 135.

Thus, when the Senate Committee reported out the Kennedy-Ervin bill rather than its competitor, it is reasonable to infer that the Committee, and later the Senate, regarded the provision for exclusive enforcement by the Secretary as a device for eliminating frivolous complaints and consolidating meritorious ones. There is no basis whatever for the further conclusion suggested by the Secretary, that the Senate opposed any form of direct participation by union members in Title IV enforcement litigation.

The legislative history in the House of Representatives provides even less support for the Secretary’s position. The House initially rejected the Senate bill and passed an alternative authorizing only union members, and not the Secretary, to bring suit to enforce the election title of the bill. H. R. 8342, see H. R. Rep. No. 741, 86th Cong., 1st Sess., 15-17 (1959). Even Senator Goldwater, the leading advocate of member suits, thought the House bill inferior to the Senate bill in this regard, because the matter of election violations was too important to be left exclusively to the vagaries of private enforcement. 105 Cong. Rec. 16489 (comparison of House and Senate bills by Sen. Goldwater). The Conference Committee and the House ultimately adopted the Senate’s enforcement provisions, thereby affirming the need for public enforcement of Title IV. See H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 35 (1959). That action, however, can in no sense be read as a rejection of all forms of private participation in enforcement litigation, since the House at no time considered the possibility that union members might assist the Secretary rather than displace him.

With respect to litigation by union members, then, the legislative history supports the conclusion that Congress intended to prevent members from pressing claims not thought meritorious by the Secretary, and from litigating in forums or at times different from those chosen by the Secretary. Only if intervention would frustrate either of those objectives can the statute fairly be read to prohibit intervention as well as initiation of suits by members.

II

Intervention by union members in a pending enforcement suit, unlike initiation of a separate suit, subjects the union to relatively little additional burden. The principal intrusion on internal union affairs has already been accomplished, in that the union has already been summoned into court to defend the legality of its election. Intervention in the suit by union members will not subject the union to burdensome multiple litigation, nor will it compel the union to respond to a new and potentially groundless suit. Thus, at least insofar as petitioner seeks only to present evidence and argument in support of the Secretary’s complaint, there is nothing in the language or the history of the LMRDA to prevent such intervention. ^

The question is closer with respect to petitioner’s attempt to add to the Secretary’s complaint two additional grounds for setting aside the union election. These are claims that the Secretary has presumably determined to be without merit. Hence, to require the union to respond to these claims would be to circumvent the screening function assigned by statute to the Secretary. We recognize that it is less burdensome for the union to respond to new claims in the context of the pending suit than it would be to respond to a new and independent complaint. Nevertheless, we think Congress intended to insulate the union from any complaint that did not appear meritorious to both a complaining member and the Secretary. Accordingly, we hold that in a post-election enforcement suit, Title IV imposes no bar to intervention by a union member, so long as that intervention is limited to the claims of illegality presentedy by the Secretary’s complaint.

III

Finally, the Secretary argues that even if the LMRDA does not bar intervention, petitioner has no right to intervene under the terms of Fed. Rule Civ. Proc. 24 (a). Rule 24 (a)(2) gives one a right to intervene if (1) he claims a sufficient interest in the proceedings, and (2) that interest is not “adequately represented by existing parties.”

The Secretary does not contend that petitioner’s interest in this litigation is insufficient; he argues, rather, that any interest petitioner has is adequately represented by the Secretary. The court below did not reach this question, in light of its threshold determination that Rule 24 had no application to the case. Nevertheless, we think it clear that in this case there is sufficient doubt about the adequacy of representation to warrant intervention.

The Secretary contends that petitioner’s only legally cognizable interest is the interest of all union members in democratic elections, and he says that interest is identical with the interest represented by the Secretary in Title IV litigation. Hence he argues that petitioner’s interest must be adequately represented unless the court is prepared to find that the Secretary has failed to perform his statutory duty. We disagree.

The statute plainly imposes on the Secretary the duty to serve two distinct interests, which are related, but not identical. First, the statute gives the individual union members certain rights against their union, and "the Secretary of Labor in effect becomes the union member’s lawyer" for purposes of enforcing those rights. 104 Cong. Rec. 10947 (remarks of Sen. Kennedy). And second, the Secretary has an obligation to protect the "vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member." Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U. S. 463, 475 (1968). Both functions are important, and they may not always dictate precisely the same approach to the conduct of the litigation. Even if the Secretary is performing his duties, broadly conceived, as well as can be expected, the union member may have a valid complaint about the performance of "his lawyer." Such a complaint, filed by the member who initiated the entire enforcement proceeding, should be regarded as sufficient to warrant relief in the form of intervention under Rule 24 (a) (2).

The judgment is reversed and the case is remanded to the District Court with directions to allow limited intervention in accordance with this opinion.

So ordered

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Douglas,

dissenting in part.

I join the opinion of the Court to the extent that it holds that Title IV of the Landrum-Griffin Act does not bar intervention by union members, pursuant to Fed. Rule Civ. Proc. 24 (a), in suits initiated by the Secretary of Labor challenging union elections. I differ from the majority, however, in that I would also permit the union members in this case to raise their additional grounds for setting aside the disputed election. In my view, the limited intervention granted by the majority serves neither the purpose of the liberalizing 1966 amendments to Rule 24, nor the twin purposes of Title IV— to preserve unions from a multiplicity of frivolous election challenges, and also to centralize in a single proceeding such litigation as might be warranted with respect to a single election.

Here, the Secretary has served his screening function. He has decided that petitioner’s election challenge is meritorious. The Court concedes, moreover, that the burden on the union to defend against the additional claims would not be particularly burdensome, compared to the onus of an independent action. Ante, at 537. These claims relate squarely to the election whose legality the union must defend. I would permit them to be heard.

       The complaint alleged that the Union violated the Act by, inter alia, failing to use secret ballots, permitting campaigning at the polls, denying candidates the right to have observers at polling places and at the counting of ballots, subjecting members to reprisals in connection with their election activities, failing to conduct elections in some locals, and using union assets to promote the candidacy of the incumbents.

       Petitioner alleged as additional violations of the Act (1) that the Union required members to vote in certain locals, composed entirely of pensioners, which petitioner claims are illegally constituted under the UMWA Constitution; and (2) that the incumbent president improperly influenced the pensioners’ vote by bringing about a pension increase just before the election.

       Petitioner asks the court to order the Union to disband the pensioner locals, to publish a ruling to the effect that the president breached his fiduciary duty by bringing about the pension increase, and to establish new comprehensive rules to govern future elections.

       We expedited consideration of this case in view of the fact that the litigation is presently pending in the District Court and it has not been stayed.

       See generally Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv. L. Rev. 851 (1960); Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819 (1960).

       The Goldwater-Administration bill provided that a member could file suit with respect to any violation of the election title unless that claimed violation was the subject of a pending action by the Secretary. It also provided that enforcement suits could be filed in either state or federal courts. The question of member suits was, throughout the debates, intertwined with the question of preserving pre-existing state remedies, since prior to the enactment of the LMRDA the only remedy for illegal election conduct was a member suit in state court.
      Pre-existing state remedies presented the additional problem, not relevant here, of multiple litigation that was not only inconvenient as a matter of procedure but also in conflict as a matter of substance, for the state remedies related to state-defined rights that were not always identical to the new rights defined in the LMRDA. The debates reflect great concern with the proper relationship between state and federal remedies, and much less concern with the relationship between private and public enforcement. See, e. g., S. Rep. No. 187, 86th Cong., 1st Sess., 19-22, 101-104 (1959) (majority and minority views); Hearings on H. R. 3540 et al. before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., pt. 4, p. 1611 (1959) (analysis of S. 1555 by Sen. Goldwater), reprinted at 105 Cong. Rec. 10102.

       For the origins and development of the procedural device of intervention, see Moore & Levi, Federal Intervention, 45 Yale L. J. 565 (1936), 47 Yale L. J. 898 (1938); Developments in the Law— Multi-party Litigation in the Federal Courts, 71 Harv. L. Rev. 874, 897-906, 988-992 (1958). The distinction between intervention and initiation is thoughtfully discussed in Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 726-729 (1968).

       This limitation, however, applies only to the claimed grounds for setting aside the old election, and not to the proposed terms of any new one that may be ordered. For if the court finds merit in the Secretary’s complaint and sets the election aside, then the statute requires the court to direct a new election in conformity with the constitution and bylaws of the union, and the requirements of Title IV. Since the court is not limited in this regard to consideration of remedies proposed by the Secretary, there is no reason to prevent the intervenors from assisting the court in fashioning a suitable remedial order. Cf. Hodgson v. Steelworkers, 403 U. S. 333, 344 (White, J., dissenting).

       Fed. Rule Civ. Proc. 24 (a):
      “Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

       The requirement of the Rule is satisfied if the applicant shows that representation of his interest “may be” inadequate; and the burden of making that showing should be treated as minimal. See 3B J. Moore, Federal Practice ¶ 24.09-1 [4] (1969).

      These claims both related to alleged manipulation of pensioners by the incumbents. One claim attacked so-called “bogus” locals, composed entirely of pensioners,, which were “run” by the incumbents. The second claim was that the union president attempted improperly to influence the pensioners’ vote by arranging for increased pension benefits just before the election.


author: Mr. Justice White Mr. Justice Douglas,

text:
    BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM v. NEW LEFT EDUCATION PROJECT et al.
    No. 70-55.
    Argued December 6, 1971
    Decided January 24, 1972

      W. 0. Shultz II, Assistant Attorney General of Texas, argued the cause for appellant. With him on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis, Pat Bailey, and James C. McCoy, Assistant Attorneys General.

      David R. Richards argued the cause for appellees. With him on the brief was Melvin L. Wulf.

   Mr. Justice White

delivered the opinion of the Court.

This case comes here on direct appeal from the ruling of a three-judge court declaring unconstitutional and enjoining enforcement of two sections of the Rules and Regulations of appellant Board of Regents of the University of Texas System. 326 F. Supp. 158 (1970). We postponed consideration of our jurisdiction to a hearing on the merits. 401 U. S. 935 (1971). For reasons explained below, we have concluded that we lack jurisdiction of this appeal.

This litigation began when the Board of Regents sued the New Left Education Project and certain individuals in a Texas court. In that suit, the Regents sought to restrain defendants from distributing a newspaper and making either commercial or noncommercial solicitations on the Austin campus of the University of Texas except in compliance with appellant's rules. Defendants countered by bringing this federal suit to enjoin further state court proceedings on the ground that the rules that the Regents sought to enforce abridged defendants’ First Amendment rights. A three-judge court met and determined that it was properly convened pursuant to 28 U. S. C. § 2281. It then permitted certain other organizations and individuals, including appellees here, to join the suit as plaintiffs and dismissed the action as to those involved in the state court adjudication. Thereafter, the court granted summary judgment in favor of appellees, declaring unconstitutional and permanently enjoining enforcement of two rules, Regents’ Rules & Regs., c. VI, pt. 1, §§ 6.11, 6.12 (App. 173), governing the campus distribution of certain kinds of literature and the solicitation of dues from members of political organizations.

We have jurisdiction to review directly the lower court’s order granting an injunction only if the case was one required to be heard and determined by a three-judge court. 28 U. S. C. § 1253. Such a court is required where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy. But a single judge, not a three-judge court, must hear the case where the statute or regulation is of only local import. Moody v. Flowers, 387 U. S. 97 (1967); Rorick v. Board of Commissioners, 307 U. S. 208 (1939); Ex parte Public National Bank, 278 U. S. 101 (1928); Ex parte Collins, 277 U. S. 565 (1928). This rule achieves the congressional purpose of saving statewide regulatory legislation from invalidation through ordinary federal court equity suits, minimizes the burden that the three-judge court places upon the federal judiciary, and avoids unduly expanding the Court’s carefully limited appellate jurisdiction. Phillips v. United States, 312 U. S. 246, 250 (1941). Thus, the "term `statute’ in § 2281 does not encompass local ordinances or resolutions," Moody v. Flowers, supra, at 101, nor does it include a state statute having only a local impact, even if administered by a state official. Rorick v. Board of Commissioners, supra.

Appellant Board of Regents was created by the Texas Legislature and is charged with governing those educational institutions in the University of Texas System. Texas Rev. Civ. Stat. Ann., Art. 2585 (1965). This governance, which specifically includes a rulemaking power, ibid., extends to but three of the 23 four-year state colleges and universities listed in the Higher Education Coordinating Act of 1965, id., Art. 2919e-2, § 2 (Supp. 1970-1971): the University of Texas at Austin, El Paso, and Arlington. In addition to the 20 senior colleges and universities for which appellant bears no responsibility, Texas has at least 31 public junior colleges that are not within the University of Texas System. Ibid. It is true that the Board of Regents governs numerous medical and other specialized schools and branches, id., Arts. 2603e to 2603i, 2606b to 2606d, but these are only some of the specialized institutions that Texas denominates as agencies of higher education. Id., Art. 2919e-2, §§ 2 (e)-(g) (Supp. 1970-1971). It is therefore apparent that the Regents’ rulemaking power and the rules at issue in this litigation extend to but a fraction of the campuses in the Texas system of higher public education. These rules can scarcely be described as matters of statewide concern or expressions of a statewide policy when a large percentage of Texas colleges and universities are unaffected by them and could not be affected by any pronouncement that a federal court might make on their constitutionality. There is no suggestion or indication of any kind that the Regents’ rules are similar to those for other schools or are required by or express statewide policy. The situation here is comparable to that in Moody v. Flowers, supra, where we held that three-judge courts were improperly convened to consider challenges to a state statute applying to a particular country and to a county charter based upon a state statute. The fact that several campuses over which the Board of Regents has jurisdiction are located in different parts of the State does not in our view make their rules of general applicability for the purpose of 28 U. S. C. § 2281. These rules, applying only to some of the higher educational institutions of the State, are of limited significance and do not partake of the quality and dignity of those state statutes or policies that three-judge courts were designed to consider. We are persuaded that a contrary view of this case would be inconsistent with our oft-repeated admonition that the three-judge court statute is to be strictly construed. E. g., Allen v. State Board of Elections, 393 U. S. 544 (1969); Phillips v. United States, 312 U. S., at 251.

Since the three-judge court was improperly convened, appeal lies not here but to the Court of Appeals for the Fifth Circuit. So that appellant may be able, if it desires, to perfect a timely appeal, we vacate the judgment below and remand the case with instruction that the court enter a fresh decree. Phillips v. United States, supra, at 254.

Judgment vacated and remanded.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Douglas,

dissenting.

When I authored Moody v. Flowers, 387 U. S. 97, I thought I was writing a chapter on federalism within a State. Cities, counties, and the State as a whole constitute that federalism. The three-judge-court statute, 28 U. S. C. § 2281, speaks of "the enforcement, operation or execution of any State statute." A city ordinance or a county regulation does not meet that requirement, and so the county regulations involved in Moody did not satisfy the statute though enacted by the State. If the source of the authority is state action, the statute is presumably satisfied, since normally, of course, state laws have an impact on activities in every city and every county. But where a state law is not of "statewide concern" and involves only "legislation affecting a locality" (Rorick v. Board of Commissioners, 307 U. S. 208, 213), then the policy of 28 U. S. C. § 2281 is deemed not served.

But a State’s university system, involving, as does this one, 17 institutions, is plainly of “statewide concern” even though not every county has a university.

In addition to its supervision of the University of Texas at Austin, Texas Rev. Civ. Stat. Ann., Art. 2584 et seq., and the other institutions included in the 17 that are in the state university system, the Board of Regents also oversees a number of other major institutions of higher education within Texas’ university and college system: University of Texas at El Paso, id., Art. 2633, University of Texas at Arlington, id., Art. 2620a, University of Texas at San Antonio, id., Art. 2606c-3, University of Texas at Dallas, id., Art. 2606c-3.1, University of Texas of the Permian Basin, id., Art. 2606&-4, Institutes for Urban Studies in the Dallas-Ft. Worth area and in Houston, id., Art. 2606d, as well as other institutions of learning. E. g., id., Art. 2585d (3).

The matter involves more than state “legislation affecting a locality”: it concerns a university system with campuses scattered across the State and serving the educational needs of those from every city, from every county, who seek undergraduate or graduate education.

Since the case is properly here, I would reach the merits.

       Appellant also mentions the University of Texas at San Antonio and of the Permian Basin but does not take issue with appellees’ contention that these schools are merely in the planning stage (Brief for Appellees 2 n. 1).

       It has long been settled that a three-judge court is proper even in a suit against a local official, although localized in his geographic activities and mode of his selection, when he is engaged in enforcing a policy of statewide application whose constitutionality is challenged. Spielman Motor Sales Co. v. Dodge, 295 U. S. 89 (1935); Rorick v. Board of Commissioners, 307 U. S. 208, 212 (1939). The thrust of our more recent decision in Alabama State Teachers Assn. v. Alabama Public School and College Authority, 393 U. S. 400 (1969), is to the same effect. The issue there was a legislative direction to the Alabama Public School and Housing Authority to issue bonds for the construction of a public university in Montgomery, Alabama. Appellants challenged that action, although having a local impact, as expressive of an official, statewide policy to maintain a racially identifiable, dual system of education, and the District Court denied relief. The dissent on the merits from summary affirmance, disagreeing with Mr. Justice Harlan’s dissent on jurisdictional grounds, agreed that a statewide policy was sufficiently implicated to sustain the jurisdiction of the three-judge court and the direct appeal here. Board of Visitors v. Norris, post, p. 907, aff’g 327 F. Supp. 1368 (ED Va. 1971), rests upon the same basis. In McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950), the Court entertained an appeal from the judgment of a three-judge District Court upholding an Oklahoma statute providing that Negroes, though admissible to white graduate schools, must get that education on a segregated basis.
      Nothing in the record before us in this case indicates that the regulations challenged here represent general state policy, reflect a statutory command, or apply to more than a fraction of the Texas higher educational institutions. It is thus difficult to understand the dissent’s reliance on the Alabama, Norris, and McLaurin cases.

       During oral argument, counsel for appellant indicated that its authority extended over some “17 component institutions in the system,” stretching from El Paso on the far western tip of the State, to Galveston on the Gulf Coast, and from San Antonio in the south to Dallas in the north. Tr. of Oral Arg. 6-7. “[A]t the University of Texas at Austin alone,” counsel told us, “there are 40,000 students, and over 7,000 employees on a 265-acre campus. When you include all the other campuses and institutions, I’m hard put to say how many people are involved; but many, many thousands.” Id,., at 10.

       See n. 1, supra.

       That a “statewide concern” sufficient to require a three-judge court is present is evidenced by Alabama State Teachers Assn. v. Alabama Public School and College Authority, 393 U. S. 400 (1969), a case of recent vintage which the Court must overrule to reach its result today. There, we sustained a three-judge-court action dealing with state bonding authority for a single college in a single town. See also McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950) (three-judge court required for action relating to single state graduate school). The present case is an even stronger one for the convention of a three-judge court because the rules in issue touch upon the freedom of expression in colleges and universities in all four corners of the State of Texas.
      And see Board of Visitors v. Norris, post, p. 907, aff’g 327 F. Supp. 1368 (ED Va. 1971), decided about three months ago. There, the three-judge court struck down as unconstitutional a single item in a state act dealing with but one of the State’s colleges. This Court unanimously affirmed that judgment.

        Alabama State Teachers Assn., McLaurin, and Norris did not, as is suggested by the majority, depend upon the existence of a pervasive state policy of segregation extending beyond the educational institutions there involved. The statewide concern which justified the convention of the three-judge courts in those cases, cf. Spielman Motor Sales Co. v. Dodge, 295 U. S. 89 (1935), was the unconstitutional manner in which state institutions, serving the entire State, were being operated. That same kind of operation of statewide institutions is alleged in the present case.


text:
    UNITED STATES v. CHAS. PFIZER & CO., INC., et al.
    No. 70-72.
    Argued January 12, 1972
    Decided January 24, 1972

      Deputy Solicitor General Friedman argued the cause for the United States. With iiim on the briefs were Solicitor General Griswold, Assistant Attorney General McLaren, Harry R. Sachse, Howard E. Shapiro, and Harry G. Sklarsky.

      John E. F. Wood argued the cause for respondents. With him on the brief for Chas. Pfizer & Co., Inc., were Judson A. Parsons, Jr., J. Paul McGrath, Paul Sherman, and Arthur G. Connolly. Roy W. McDonald, Ralstone R. Irvine, and Richard Y. Holcomb filed a brief for respondent American Cyanamid Co. Merrell E. Clark, Jr., and Henry J. Zafian filed a brief for respondent Bristol-Myers Co.
   Per Curiam.

The judgment is affirmed by an equally divided Court.

Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Marshall took no part in the consideration or decision of this case.


text:
    CONNOR et al. v. WILLIAMS, GOVERNOR OF MISSISSIPPI, et al.
    No. 71-221.
    Decided January 24, 1972
   Per Curiam.

After determining that the reapportionment plan for the State Senate and House of Representatives, passed by the Mississippi Legislature in January 1971, failed to comply with the Equal Protection Clause because of a total variance of 26% between the largest and the smallest senatorial district (a determination that was not appealed), the District Court fashioned its own plan for the quadrennial elections for both Houses scheduled for 1971, and these elections were held under the court’s plan. Connor v. Johnson, 330 F. Supp. 506 (SD Miss. 1971). Appellants now challenge the constitutionality of the court’s plan, contending that a total variance of 18.9% between the largest and smallest Senate district and one of 19.7%- between the largest and smallest House district require that the court’s districting plan be voided, a new plan instituted, and new elections held.

Appellants rely on our recent cases invalidating congressional redistricting statutes that contained total variations of 5.97%, Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and of 13.1%, Wells v. Rockefeller, 394 U. S. 542 (1969), between the largest and the smallest districts. These decisions do not squarely control the instant appeal since they do not concern state legislative apportionment, but they do raise substantial questions concerning the constitutionality of the District Court’s plan as a design for permanent apportionment.

But conceding, arguendo, that the District Court’s plan does not precisely square with Fourteenth Amendment requirements, it does not necessarily follow that the 1971 elections must be invalidated and new elections ordered. Mann v. Davis, 238 F. Supp. 458 (ED Va. 1964), aff’d sub nom. Hughes v. WMCA, 379 U. S. 694 (1965); Toombs v. Fortson, 241 F. Supp. 65, 71 (ND Ga. 1965), aff’d, 384 U. S. 210 (1966); Drum v. Seawell, 249 F. Supp. 877, 881-882 (MDNC 1965), aff’d, 383 U. S. 831 (1966). In the circumstances of this case, we decline to disturb these elections.

The prospective validity of the plan for the 1975 elections, absent legislative action, poses different issues, but we need not decide those questions at the present time. Under the District Court plan, approximately one-fifth of the seats in both Houses were filled by at-large elections from temporary countywide districts in 1971. The District Court retained jurisdiction over these three counties and ordered that a Special Master be appointed in January 1972 to “take testimony and make findings as to whether the Counties of Hinds, Harrison, and Jackson may feasibly be divided into districts of substantially equal numbers in population for the elections of 1975 and 1979.” 330 F. Supp., at 519. Such proceedings should go forward and be promptly concluded, for, as this Court has emphasized, “when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter.” Connor v. Johnson, 402 U. S. 690, 692 (1971). Pending completion of those proceedings, we deem it inappropriate to give further consideration to this case. If we are to consider the applicability of Preisler and Wells to state legislative districts, it would be preferable to have before us a final judgment with respect to the entire State. To accomplish this result and to preserve the right to appeal from such a judgment, the judgment of the District Court is vacated, except insofar as it applied to the 1971 elections, and the case is remanded to the District Court for further proceedings consistent with this opinion.

So ordered.

       A three-judge court has twice previously voided apportionment plans enacted by the Mississippi Legislature because they embodied impermissible population variances. Connor v. Johnson, 279 F. Supp. 619 (SD Miss. 1966), aff’d, 386 U. S. 483 (1967) (appeal limited to congressional districting). This Court has already considered an interlocutory appeal in the instant case. Connor v. Johnson, 402 U. S. 690, 403 U. S. 928 (1971).

       There are 52 seats in the State Senate and 122 seats in the State House of Representatives. According to the 1970 census, Mississippi has a population of 2,216,912, making the ideal single-member Senate district one containing 42,633 persons and the ideal single-member House district one containing 18,171 persons. Under the court’s plan, Senate district 29 (46,719 persons, one Senator) is 9.6% underrepresented, and district 19 (77,320 persons, two Senators) is 9.3% overrepresented. House district 18 (32,772 persons, two Representatives) is 9.8% overrepresented, and House district 3 (59,912 persons, three Representatives) is 9.9% underrepresented.

       Legislators elected from temporary multi-member districts:

        Senators Representatives

      Hinds County. 5 12
      Harrison County. 3 7
      Jackson County. 2 6*
      10 25
      *With George County.
      Thus, 10 out of 52 Senators (19%) and 25 out of 122 Representatives (21%) were elected from temporary multi-member districts in 1971.

         Meanwhile, it is possible that the state legislature will adopt a plan of its own. During the course of this litigation, the District Court has emphasized that “the exercise of this unavoidable judicial duty [drafting an apportionment plan] cannot, does not, and will not in any way tie the hands of the Legislature at any time to adopt and enact any plan of its own for the reapportionment of its membership so long as it complies with Constitutional requirements.” Connor v. Johnson, 265 F. Supp. 492, 494 (SD Miss. 1967) (emphasis in original). This Court has frequently emphasized that “legislative reapportionment is primarily a matter for legislative consideration and determination, and . . . judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.” Reynolds v. Sims, 377 U. S. 533, 586 (1964). See also Burns v. Richardson, 384 U. S. 73, 85 (1966); Ely v. Klahr, 403 U. S. 108, 114 n. 6 (1971).