author:
Per Curiam.
      Mr. Justice Douglas,

text:
    McCLANAHAN v. MORAUER & HARTZELL, INC., et al.
    No. 70-5097.
    Argued October 21, 1971
    Decided November 8, 1971

      John Louis Smith, Jr., argued the cause for petitioner. With him on the brief was George H. Mitchell, Jr.

      James C. Gregg argued the cause for respondents. With him on the brief was James F. Bromley.

   Per Curiam.

Under § 33 (g) of the Longshoremen’s and Harbor Workers’ Compensation Act, an employer is not obligated to pay compensation to an employee who, without the employer’s written approval, settles a claim against a third person for an amount less than the compensation to which the employee is entitled under the Act. 44 Stat. 1441, as amended, 33 U. S. C. § 933 (g). Certiorari was granted in this case, 402 U. S. 1008 (1971), on the assumption that it presented the question whether the consent judgment entered by the District Judge awarding petitioner damages against a third person evidenced a “compromise” subject to § 33 (g), or an award of damages “determined ... by the independent evaluation of a trial judge,” not subject to § 33 (g) under Banks v. Chicago Grain Trimmers Assn., 390 U. S. 459, 467 (1968). Fuller examination of the case on oral argument discloses that the record does not adequately present that question. The writ of certiorari is therefore dismissed as improvidently granted.

It is so ordered.

Mr. Justice Douglas,

dissenting.

I am unable to agree that the circumstances of this case fail to pose the question whether a consent judgment pursuant to a federal pretrial conference constitutes a “compromise” within the meaning of § 33 (g) of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1441, as amended, which reads:

“If compromise with such third person is made by the person entitled to compensation ... of an amount less than the compensation to which such person . . . would be entitled . . . the employer shall be liable for compensation as determined in subdivision (f) of this section only if such compromise is made with his written approval.”

Petitioner McClanahan was employed by respondent when a steel bar struck his head. On August 24, 1964, the Bureau of Employees’ Compensation found that the injury had caused temporary total disability and ordered the respondent to compensate McClanahan in the amount of $3,780. While these proceedings were pending, the petitioner instituted a civil action in the District Court against a third party, alleging that its employees had contributed to his injury. Before the civil action came to trial, the judge conducted a pretrial conference, during which he spoke with counsel first together and then individually. During these conversations the judge suggested that he had reviewed the file and that he believed the plaintiff’s case was worth about $5,000 (although McClanahan had sued for $9,000). Other sums were discussed but the parties accepted his suggestion. On March 3, 1967, a consent judgment was entered for $5,000, of which petitioner’s wife received $3,000 and he received $2,000. Of petitioner’s share $800 was retained by his lawyer and the remaining $1,200 of the petitioner’s share was transferred to his employer’s insurance carrier as partial reimbursement for disability payments previously made under the Board’s 1964 order.

Thereafter, on July 26, 1967, the petitioner filed with the Bureau a claim for modification of its 1964 compensation award, alleging that his injuries were more serious than previously realized. The Deputy Commissioner agreed with at least part of his assertions and added $2,328.70 to the prior award.

On appeal, however, the lower courts were persuaded that the employer was immune from further liability because the petitioner had “compromised” his claim against a third party. The Longshoremen’s and Harbor Workers’ Compensation Act provides that an employer is liable only for the excess of a worker’s injury over any amount a worker may recover from a third party. Thus, an employer is benefited when an injured employee obtains a larger judgment from a third party. To protect employers from ill-advised compromises by employees § 33 (g) generally relieves an employer of further liability if, without his written approval, his injured servant settles with another possible defendant. Thus, in the instant case, because the respondent had not subscribed to the consent judgment, the lower courts held that it had been spared further payments to McClanahan.

We granted certiorari to consider whether the lower courts’ holdings conflict with our decision in Banks v. Chicago Grain Trimmers Assn., 390 U. S. 459 (1968), that an employee’s acceptance of a judicially ordered remittitur in lieu of a new trial was not a “compromise” within the meaning of § 33 (g). 402 U. S. 1008 (1971). Banks involved a similar chain of events except that Banks, unlike McClanahan, went to trial and a jury awarded him $30,000, which the judge thought was excessive. The court accordingly said it would order a new trial unless the parties agreed to a remittitur which would reduce the total judgment to $19,000. Banks accepted without obtaining his employer’s consent. We held that his acquiescence had not constituted a “compromise” because it had been induced by the “independent evaluation of a trial judge” and the danger of Banks’ accepting too little had not been present. 390 U. S., at 466, 467.

Similarly, no risk of unwise compromise faced McClanahan’s employer. Pretrial conferences are the last stop before the final stage in the trial litigation process. Preceded by pleadings and discovery, the conference previews the expected trial scenario, weeds out illusory and frivolous issues, and exposes the substance of conflicting claims. Because pretrial judges review the evidence to be presented in light of the clarified issues, they are in a position to assess the outcome. Thus, one widely applauded function of the pretrial conference has been its encouragement of settlements in personal-injury cases. While some dispute continues as to the degree of persuasion a judge should exercise in obtaining a settlement, critics have not complained that pretrial conference settlements have been unreasonable or unfair. See F. James, Civil Procedure 228 (1965); Wright, The Pretrial Conference, 28 F. R. D. 141, 145-147 (1960); Brennan, Introduction to the Problem of the Protracted Case, 23 F. R. D. 376, 378-379 (1958); Clark, Objectives of Pre-Trial Procedure, 17 Ohio St. L. J. 163, 167 (1956). Thus, McClanahan’s trial judge below surveyed the evidence which was to be presented at trial and after discussion with both adversaries suggested that the expected value of McClanahan’s case was about $5,000. That assessment was made by one experienced in understanding how juries are likely to view a claim. Absent circumstances not shown here, we should presume that such evaluations are reasonable and do not prejudice employers’ interests.

In Banks — unlike here — the judge had seen a full jury trial’s worth of evidence. But in both situations there were critical assessments of the expected values of plaintiffs’ future prospects. In Banks the employee might well have adduced different, stronger evidence at a second trial, or, the remittitur order may have been vacated on appeal. In settling on a suggested remittitur of $11,000 the court may have extrapolated from hindsight but it had no more, perhaps even less, information concerning Banks’ eventual success than had McClana-han’s pretrial judge concerning his prospects. The important similarity between these cases is that an independent and informed forecast was made of events yet to unfold.

Moreover, we have construed § 33 (g) so as to confine this defense to those situations where an employer can demonstrate actual prejudice from unilateral settlements by the employee. In Chapman v. Hoage, 296 U. S. 526 (1936), our first opinion discussing § 33 (g), the employer claimed prejudice because his employee had unilaterally discontinued a lawsuit against a third party. The trial judge had made no assessment of its prospects. The worker had simply failed to prosecute his case. This Court ultimately determined that the lawsuit had been worthless and that absent a showing of actual prejudice the employer was not entitled to a windfall “compromise” defense as a result of its dismissal.

The trend in other jurisdictions has been to avoid the harshness resulting from strict applications of statutes requiring consent of employers in third-party settlements. Under the analogous provision of the New York employees’ compensation statute, after which the federal Act was modeled, circumstances similar to the instant facts have been held nonprejudicial to employers. Sadowski v. J. W. Danforth Co., 2 App. Div. 2d 728, 152 N. Y. S. 2d 626 (1956), effectively differed from the instant case only in that the conference was held in the courtroom rather than in chambers:

“Prior to trial of the action, the attorneys concerned had two or three discussions as to settlement. On the day the case was reached for trial, claimant’s attorney told him he believed the case would be settled and later asked him to approve a settlement figure of $10,000, which he did. In the presence of his attorney and an insurance company representative, claimant signed a paper, but so far as appears no effort was made to subpoena such paper on the hearing herein. When the case was reached, both attorneys appeared and waived a jury. Claimant testified as to all the facts relevant to liability and damages and exhibits were received. Defendant’s attorney did not cross-examine and put in no proof. The trial court then found defendant negligent and the plaintiff free from negligence and directed judgment for $10,250. We cannot say, as a matter of law, upon the record before us, that this result did not represent the trial court’s considered judgment and evaluation, based on the evidence, which appears to have been adequate to enable him to reach a fair determination. In a case where the facts were somewhat more favorable to the compensation insurance carrier than here, we held that the judgment represented the 'trial court’s evaluation of the damages sustained and was not the result of any settlement or compromise.’ (Matter of Klump v. Erie County Highway Department, 275 App. Div. 1017, motion for leave to appeal denied 300 N. Y. 761.)”

The purpose of the Longshoremen’s and Harbor Workers’ Compensation Act was to guarantee a minimum level of compensation to covered employees. The record clearly reveals that McClanahan has not yet received that statutory minimum.

We should not depart from our holding in Banks. Where a plaintiff cannot rely on the judgment and experience of a federal district judge, he has no choice but to refuse any disposition of the case short of a full trial and numerous appeals. In these days of crowded court dockets, the effect of the rule adopted by the Court of Appeals will be to discourage consent judgments in cases of this kind and force all such litigation through the trial process, further overwhelming already overburdened judges. Finally, there is something most inequitable in holding that a personal-injury plaintiff who relies on the good faith and judgment of a federal judge should thereafter be penalized and deprived of compensation for his injury because of his reliance. I would reverse the decision below to enforce the congressional mandate contained in the Longshoremen’s and Harbor Workers’ Compensation Act as we did in our decision in Banks.

        Banks v. Chicago Grain Trimmers Assn., Inc., 390 U. S. 459, 466 (1968).

       In Klump, the third party and the plaintiff-employee waived a jury, the latter testified briefly, the former conceded liability, and when both agreed that damages ranged between $4,000 and $4,500, the trial judge entered a judgment for $4,300. Before the compensation board the employer later argued unsuccessfully that this judgment had constituted a compromise. Klump v. Erie County Highway Department, 275 App. Div. 1017, 91 N. Y. S. 2d 689, leave to appeal denied, 300 N. Y. 761, 90 N. E. 2d 69. The opinion of the state workman’s compensation board is reported at State of New York Workman’s Compensation Board, Special Bulletin No. 229, p. 192 (1949).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ENGELMAN, DIRECTOR, DIVISION OF PUBLIC WELFARE, DEPT. OF INSTITUTIONS AND AGENCIES, et al. v. AMOS et al.
    No. 70-33.
    Decided November 9, 1971
   Per Curiam.

The motion of appellee Amos for leave to proceed in forma pauperis is granted.

A three-judge District Court has enjoined New Jersey-officials from enforcing a state regulation applicable to payments under the federally financed program for Aid to Families With Dependent Children, Title IV of the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U. S. C. §§ 601-610:

The regulation in question, § 615 of the New Jersey Categorical Assistance Budget Manual, would deny AFDC benefits to the extent that a family’s “total available adjusted income,” calculated without deduction for the “income disregards” specified by § 402 (a) (8) of the federal Act, 42 U. S. C. §602 (a)(8), exceeds a ceiling specified by the State. The regulation is challenged on the grounds (1) that it is in conflict with § 402 (a) (8), and (2) that it fails to provide that, in the calculation of earned family income which is to be compared with the § 615 ceiling, a stepfather’s earnings are not to be taken into account unless they are “actually available” for the current use of the dependent child, 45 CFR § 233.20 (a) (3) (ii). It was also suggested in the proceedings below that § 615.5 of the state regulation conflicts with § 406 (b) of the federal Act, 42 U. S. C. § 606 (b), when it authorizes payments directly to vendors who provide goods or services to beneficiaries.

The District Court upheld the challenge on all three grounds. Judgment was entered enjoining the enforcement of § 615 “insofar as it violates the federal statute” and ordering that New Jersey “revise the regulation to conform to the federal statute.” The state officials appeal.

The appellants and also the United States, in its amicus curiae brief, appropriately point out that there is nothing in the federal statute that prohibits a State from making vendor payments so long as they are made from state funds without federal matching. The statute, § 406, merely does not provide for reimbursement to the State for payments of that kind. We agree with these observations by the appellants and the amicus, and thus disagree with the District Court’s conclusion with respect to direct payments insofar as those payments are made entirely with state funds not reimbursable under § 406 of the federal Act. With this limitation in the application of its general language, the judgment of the District Court is affirmed.


text:
    JENNINGS v. MAHONEY, DIRECTOR, FINANCIAL RESPONSIBILITY DIVISION, DEPARTMENT OF PUBLIC SAFETY OF UTAH
    No. 71-5179.
    Decided November 9, 1971
   Per Curiam.

Appellant, a Utah motorist, was involved in a collision. Both drivers and a police officer who investigated the accident filed accident reports with Utah’s Department of Public Safety as required by the Utah Motor Vehicle Safety Responsibility Act. Without affording appellant a hearing on fault, and based solely on the contents of the accident reports, the Director of the Financial Responsibility Division determined that there was a reasonable possibility that appellant was at fault. Appellant did not carry liability insurance and was unable to post security to show financial responsibility. The Director therefore suspended her license. A Utah District Court sustained the Director, and the Supreme Court of Utah affirmed. 26 Utah 2d 128, 485 P. 2d 1404 (1971).

The proceedings were authorized under Utah Code Ann. §§ 41-12-2 (b) and 41-6-35 (1953). Appellant attacks the statutory scheme as not affording the procedural due process required by our decision in Bell v. Burson, 402 U. S. 535 (1971). We there held that the Georgia version of a motor vehicle responsibility law was constitutionally deficient for failure to afford the uninsured motorist procedural due process. We held that, although a determination that there was a reasonable possibility that the motorist was at fault in the accident sufficed, “before the State may deprive [him] of his driver’s license and vehicle registration,” the State must provide “a forum for the determination of the question” and a “meaningful . . . ‘hearing appropriate to the nature of the case.’ ” Id., at 541, 542. Appellant submits that Utah’s statutory scheme falls short of these requirements in two respects: (1) by not requiring a stay of the Director’s order pending determination of judicial review, the scheme leaves open the possibility of suspension of licenses without prior hearing; (2) in confining judicial review to whether the Director’s determination is supported by the accident reports, and not affording the motorist an opportunity to offer evidence and cross-examine witnesses, the motorist is not afforded a “meaningful” hearing.

There is plainly a substantial question whether the Utah statutory scheme on its face affords the procedural due process required by Bell v. Burson. This case does not, however, require that we address that question. The District Court in fact afforded this appellant such procedural due process. That court stayed the Director’s suspension order pending completion of judicial review, and conducted a hearing at which appellant was afforded the opportunity to present evidence and cross-examine witnesses. Both appellant and the Director testified at that hearing. The testimony of the investigating police officer would also have been heard except that appellant’s service of a subpoena upon him to appear was not timely under the applicable court rules.

The judgment of the Utah Supreme Court is

Affirmed.


author: Per Curiam. Mr. Justice Douglas,

text:
    DOHERTY v. UNITED STATES
    No. 71-5679.
    Decided November 9, 1971
   Per Curiam.

Applicant Doherty was convicted in federal court of smuggling marihuana. The Court of Appeals for the Ninth Circuit affirmed. Doherty’s retained counsel, who had represented him both at trial and on appeal, withdrew after the appellate decision because Doherty was without funds to pay for legal services. Without opinion the Court of Appeals denied Doherty’s pro s.e motion for appointment of counsel to assist in preparing a petition for writ of certiorari. Doherty has now filed a motion in this Court seeking appointment of counsel for that purpose. We treat the motion for appointment of counsel as a petition for writ of certiorari seeking review of the Court of Appeals’ order denying the appointment.

The Court of Appeals has a rule that counsel appointed for indigent appellants must, after adverse decision in the Court of Appeals, inform his client of the right to seek review in this Court and, if the client so desires, prepare a petition for certiorari. In denying Doherty’s motion for counsel, the Court of Appeals apparently determined that its rule was of no help to Doherty, whose counsel had been retained rather than appointed. We defer to that court's construction of its own rule. However, it is not clear that the court also considered Doherty’s motion in the light of the provisions of the Criminal Justice Act of 1964 insofar as they may be relevant to a federal prisoner’s right to have counsel’s help in seeking certiorari in this Court. 18 U. S. C. §§ 3006A (c), 3006A (d)(6), 3006A (g). See also H. R. Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964); Report of the Proceedings of a Special Session of the Judicial Conference of the United States, 36 F. R. D. 282, 291 (1965); Fed. Rule Crim. Proc. 44 (a). In order that the Court of Appeals may give further consideration to the request for counsel, Doherty’s motion for leave to proceed in forma pauperis is granted, the petition for certiorari is granted, the judgment of the Court of Appeals affirming Doherty’s conviction and its order denying appointment of counsel are vacated, and the case is remanded to that court for further proceedings consistent with this opinion, including re-entry of its judgment of affirmance and appropriate reconsideration of the motion for appointment of counsel.

So ordered.

Mr. Justice Douglas,

concurring.

While concurring completely in the Court’s per curiam, I believe additional detail clarifying the applicability of Fed. Rule Crim. Proc. 44 and the Criminal Justice Act to these circumstances is warranted inasmuch as all of the circuits’ rules implementing the latter are susceptible of replications of the result reached below. Rule 44 and the Criminal Justice Act each establish a federal policy of providing every indigent federal accused with appointed counsel at every stage in his defense from arraignment through direct review by this Court, including petitioning for certiorari.

I

Rule 44

The Act of June 29, 1940, 54 Stat. 688, authorized the Supreme Court to prescribe uniform criminal procedures in the federal courts prior to and including verdict. By an order of the Court on December 26, 1944 (323 U. S. 821), such rules were adopted, thereafter transmitted to the Congress, and became effective on March 21, 1946. These contained the forerunner of the present Rule 44, which provided:

“Assignment of Counsel. If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.”

This procedure embodied our holding in Johnson v. Zerbst, 304 U. S. 458 (1938), that federal indigent defendants had a right under the Sixth Amendment to free counsel during trial. Until Johnson v. United States, 352 U. S. 565 (1957), it was unclear whether Rule 44 extended that assistance to direct appeals of convictions arising in the federal courts. In any event by the last decade the sweep of our decisions involving right to counsel on appeal required revision of Rule 44 to make clear that “every stage of the proceedings” did, in fact, include appeals. Thus, the revised rule effective since 1966 now reads:

“Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner or the court through appeal, unless he waives such appointment.” Fed. Rule Crim. Proc. 44(a).

Whether “appeal” includes proceedings before the Supreme Court was not addressed by the Advisory Committee’s Note and was until now an academic question since the rule became effective after the implementation of the Criminal Justice Act under which courts of appeals have uniformly adopted procedures routinely to extend appointed counsel’s duty to preparation of certiorari petitions desired by their clients. Because this Court has traditionally appointed counsel for those indigents whose certiorari petitions are granted, the only gap in coverage would arise where, as here, a request for appointment is made to the Court of Appeals after it has decided an indigent’s appeal.

It is significant that the language of the amended rule does extend assistance to “appeals” and does not restrict “appeals” to proceedings in “courts of appeals.” Moreover, no qualification such as “first appeal” is present. Additionally, to the extent that the Advisory Committee’s suggested reading sheds light on its thinking, its Note refers to a law review article which argues for mandatory appointments in all stages of the federal criminal process, including petitions for certiorari. That is the obvious disposition to be made of any ambiguity.

II

Criminal Justice Act

An independent source of the federal statutory policy of continuous representation of indigents during their defense in the federal criminal process is the Criminal Justice Act of 1964. As does Rule 44, the Act provides an automatic right to counsel only in prosecutions originating in the District Courts and during direct review therefrom. Unlike Rule 44, the Act also authorizes discretionary appointment of counsel in the “interests of justice” to any pauper “subject to revocation of parole, in custody as a material witness, or seeking relief under section 2241, 2254, or 2255 of title 28 or section 4245 of title 18.” 18 U. S. C. § 3006A (g). Another important difference between the Act and Rule 44 is that only the former authorizes the disbursement of federal funds to reimburse court-appointed lawyers. Financial relief to the Bar has become increasingly necessary as our decisions have expanded indigents’ rights to counsel.

The clearest statement of the Act’s policy of providing blanket coverage of indigents’ representation from arraignment through review by this Court is found in the first sentence of subsection (c):

“A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal, including ancillary matters.” 18 U. S. C. § 3006A (c).

The ambiguous phrase “through appeal,” has been clarified by a 1970 amendment to another section. 18 U. S. C. § 3006A (d)(6) now provides:

“If a person for whom counsel is appointed under this section appeals to an appellate court or petitions for a writ of certiorari, he may do so without prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915 (a) of title 28.” 84 Stat. 918. (Emphasis added.)

Most of the original congressional hearings and floor debates concern the wisdom of public defender services in contrast to the more conventional system of rotating appointments among the Bar. No discussion was directed to the precise question involved here. Nonetheless, there are several indicia that “appeal,” as used in § 3006A (c), was intended to include proceedings in this Court.

Different versions of the Act — all based upon the Attorney General’s Committee on Poverty and the Administration of Federal Criminal Justice report of 1963— were passed in each of the Houses of Congress. A conference committee ironed out the differences and its House members afterwards reported concerning the present language of subsection (c):

“Implied in the Senate version, and expressed in the House version, is the right of a defendant to have counsel appointed at any stage of the proceeding; i. e., before the commissioner, the district court, the court of appeals, or the Supreme Court.” H. R. Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964) (emphasis added).

At least two exchanges during the floor debates made explicit that proceedings in this Court were within the Act’s coverage.

Moreover, the Judicial Conference’s Committee to Implement the Criminal Justice Act of 1964 submitted in 1965 an interim recommendation that:

“[C]ounsel appointed on appeal should advise the defendant of his right to initiate a further review by the filing of a petition for certiorari, and to file such petition, if requested by the defendant.” Report on Criminal Justice Act, 36 F. R. D. 285, 291 (1965).

As mentioned earlier, this recommendation has been adopted by all of the circuit conferences.

And our own rules have been amended to implement our participation under the Act in cases where we grant certiorari or note probable jurisdiction. Supreme Court Rule 53 (8).

Other indicators of intent are found in the Attorney General’s Committee study. One of its recommendations was that a lawyer appointed by the trial court should have incentives to represent the accused in the subsequent stages of the case including “any appellate proceedings.” Hearings on S. 1057 before the Senate Committee on the Judiciary, 88th Cong., 1st Sess., 183, 205 (1963). Presumably a purpose to excise the step during which certiorari petitions are prepared would have avoided the phrase “any appellate proceedings” and substituted instead “proceedings before the Courts of Appeals.” Moreover, the study group recommended that the Act cover probation and parole revocation hearings, a suggestion accepted by the legislature. Id., at 210, 18 U. S. C. § 3006A (a). It is difficult to ascribe to Congress a purpose to extend the assistance of counsel to paupers in these ancillary matters but to withhold it when they petition for certiorari.

It is clear that the help of counsel was meant to be available during review by this Court both in filing for certiorari and on the merits. It cannot seriously be urged against this backdrop, that Congress intended to leave lawyerless those relatively infrequent and impecunious petitioners who request counsel only after courts of appeals have adversely decided their claims. In such situations as this one, the judicial function is to resolve ambiguous statutory language in light of the underlying purposes of the measure.

Since the applicant is entitled to counsel to aid in his preparation of his petition for writ of certiorari, the only question which remains is whether it is the duty of the court of appeals or of this Court to make an appointment. Given the existing apparatus of the courts of appeals for the purpose of appointing counsel for their impoverished appellants, it would seem to be little burden upon them to process applications such as this one. Also, local appointments would facilitate swift filings of those petitions within the time limits prescribed by Supreme Court Rule 22 (2). The conclusion that the duty to process these requests should lie with the courts of appeals, rather than this Court, has been suggested elsewhere. Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn. L. Rev. 783 (1961).

I join the Court in remanding the case so that the Court of Appeals may reconsider the application. I agree that it should enter a new decree so that Doherty’s time within which he may file his certiorari papers may run anew.

      The Ninth Circuit rule provides:
      “Following decision on appeal, if the appeal is unsuccessful, counsel appointed shall advise the defendant of his right to initiate a further review by the filing of a petition for certiorari, and, if requested to do so by the defendant, file such petition. If the defendant does not desire to seek certiorari, counsel shall file with the Clerk a statement to that effect, signed by counsel and the defendant. If the defendant refuses to sign, counsel shall so state.” Rules of the United States Court of Appeals for the Ninth Circuit, App. 4 (c).

       Act of Aug. 20, 1964, Pub. L. No. 88-455, 78 Stat. 552. As amended by Act of Oct. 14, 1970, Pub. L. No. 91-447, 84 Stat. 916, the Criminal Justice Act is codified at 18 U. S. C. § 3006A.

       It appears that the Court of Appeals for the Sixth Circuit has first accepted and then rejected a similar interpretation of its analogous rule. Beasley v. United States, No. 70-5146, O. T., 1971 (motion for rehearing on denial of certiorari). All of the circuits based their implementing rules on a draft proposal made by the Judicial Conference’s Committee to Implement the Criminal Justice Act of 1964, discussed infra. The plans adopted by the 11 circuits are reproduced in 1A West’s Federal Forms, Supreme Court, §488 (B. Boskey ed. 1969).

       This Act as amended is codified at 18 U. S. C. § 3771. In 1934 Congress had directed the Supreme Court to prescribe procedures in criminal cases in federal district courts after a verdict of guilty had been entered. Act of Mar. 8, 1934, 48 Stat. 399, amending Act of Feb. 24, 1933, 47 Stat. 904, now codified as amended, 18 U. S. C. § 3772. These early rules did not address the issue of indigents’ representation on appeal of convictions. 292 U. S. 659. Together these Acts provide the Supreme Court with rulemaking authority over all procedural aspects of the federal criminal judicial process.

       Two preliminary drafts of the proposed amendments were prepared by the Committee on Rules of Practice and Procedure of the Judicial Conference. The first,, proposed in 1962, did not expressly provide for appointments on appeal. See Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure for the United States District Courts (Dec. 1962). The second draft as it appears in the text was issued in 1964. Second Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure for the United States District Courts (Mar. 1964).

       Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn. L. Rev. 783 (1961).

       Once a discretionary appointment under 18 U. S. C. § 3006A (g) has been made in such collateral matters, an indigent is automatically entitled (as in prosecutions on direct review) to counsel’s aid in petitioning for certiorari in the event his appeal is adversely decided by the court of appeals. See, for example, the Fifth Circuit Plan Under the Criminal Justice Act, Rule 7 (I) (4) and (III) (4), 28 U. S. C. A. (Supp. 1972).

       18 U. S. C. § 3006A (d).

       This provision was added by the Act of Oct. 14, 1970, Pub. L. No. 91-447, 84 Stat. 916.

       One of the sponsors of the House bill was Congressman Moore, who replied in response to a question concerning ceilings on total fees a single attorney could be paid under the Act, “May I answer that by saying the $600 limitation applies, if the appointed attorney represents the defendant before a Commissioner and all the way to the Supreme Court — $500 is the total compensation allowed.” 110 Cong. Rec. 446. See also id., at 450 (remarks of Congs. Moore and Kastenmeier).

       The Committee reaffirmed this conclusion at the September 22-23, 1965, meeting of the Conference. Report of the Proceedings of the Judicial Conference of the United States, Sept. 22-23, 1965, p. 75.


author: Mr. Justice Douglas Mr. Justice Blackmun,

text:
    NORFOLK & WESTERN RAILROAD CO. v. NEMITZ et al.
    No. 70-97.
    Argued October 21, 1971
    Decided November 15, 1971

      Martin M. Lucente argued the cause for petitioner. With him on the briefs were Howard J. Trienens and John M. Curphey.

      Thomas J. Murray, Jr., argued the cause and filed a brief for respondents.

      Solicitor General Griswold, Fritz R. Kahn, and Leonard S. Goodman filed a brief for the United States et al. as amici curiae urging reversal.
   Mr. Justice Douglas

delivered the opinion of the Court.

In connection with a 1964 consolidation by which petitioner railway company absorbed New York, Chicago & St. Louis R.,Co. (Nickel Plate), the so-called Sandusky Line, running from Columbus, Ohio, to Sandusky, Ohio, was acquired from the Pennsylvania Railroad system. Respondents were at the time employees of the Pennsylvania on the Sandusky Line. Their work was seasonal because the winter freeze barred navigation on Lake Erie. During those periods j unior employees of Sandusky worked at other points on the Pennsylvania’s Toledo Division.

In anticipation of the 1964 consolidation, petitioner entered into an agreement with 19 labor organizations for protection of the employees of the several railroads coming into the consolidation, including those on the San-dusky Line. Petitioner agreed to employ “all employees of the lines involved with the guarantee that they will not be adversely affected in their employment as a result of the proposed transactions or for any reason other than furloughs due to seasonal requirements or a decline in volume of traffic or revenue. 324 I. C. C. 1, 89 (emphasis added).

Each employee was to receive a monthly supplement to his post-consolidation monthly earnings equal to the excess, if any, of his average monthly compensation for the 12 months prior to the consolidation in which he had performed services.

Some 96 Sandusky Line employees elected to accept employment with petitioner on the terms and conditions stated. Twenty-five were junior men who had worked seasonally on the Toledo Division and they were the plaintiffs in this action.

The consolidation took place and over a year elapsed during which these trainmen were not paid the compensation promised. Arbitration pursuant to the collective agreement was agreed upon. At that point in 1965 the union and petitioner entered into a new agreement which reduced substantially the benefits of the junior trainmen who had been Sandusky Line employees. The District Court (287 F. Supp. 221, 309 F. Supp. 575) held that this new agreement was not enforceable as a matter of law as it violated the Act under which the consolidation or merger took place. The Court of Appeals affirmed, 436 F. 2d 841, with a modification that the damages due respondent-employees should be determined by the District Court, not through arbitration. The case is here on a petition for a writ of certiorari which we granted, 402 U. S. 994.

Section 5 (2) (f) of the Interstate Commerce Act as amended, 54 Stat. 906, 49 U. S. C. § 5 (2) (f), provides that in mergers and consolidations “the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected” for a period of four years.

The ICC in its approval of the consolidation or merger (324 I. C. C. 1, 106 (1964)) stated that the agreements respecting, inter alia, the rights of the Sandusky Line employees were “made pursuant to and in conformity with section 5 (2) (f) of the Interstate Commerce Act for the protection of covered employees.”

It construed the agreements as requiring “that job eliminations as a result of the proposed acquisition of control be accomplished only through normal attrition.” Ibid.

The mandate of § 5 (2)(f) seems clear enough: the Commission “shall require a fair and equitable arrangement to protect the interests of the railroad employees affected.” The Commission, as noted, said that the conditions protective of the employees were made pursuant to and in conformity with the provisions of § 5 (2) (f) and it gave its authorization “subject to such agreements.” 324 I. C. C., at 50. The Solicitor General and the ICC argue in their amicus curiae brief that the last sentence of § 5 (2) (f) — the “notwithstanding” provision — relieved the Commission of any duty to review the adequacy of the protective provisions contained in a collective-bargaining agreement, and that they were not accorded protection by the ICC order.

We disagree with that view. We reviewed the history of § 5 (2) (f) in Railway Executives’ Assn. v. United States, 339 U. S. 142, and said that “one of its principal purposes was to provide mandatory protection for the interests of employees affected by railroad consolidations.” Id., at 148. That “mandatory protection” can be accorded by terms provided by the Commission, or, as is more likely, by provisions of a collective agreement which the Commission adopts or approves as adequate for a minimum of four years (as required by the second sentence) or longer (as allowed by the first sentence) if the Commission so provides. Id., at 154. The purpose of § 5 (2) (f) was not to freeze jobs but to provide compensatory conditions. Brotherhood of Maintenance of Way Employes v. United States, 366 U. S. 169, 175-176. In that case we noted that the Commission has consistently followed that practice “in over 80 cases, with the full support of the intervening brotherhoods.” Id., at 177. And the Commission over and over again has adopted the set of labor conditions contained in collective agreements in discharge of its duty under § 5 (2) (f). See Gulf, M. & O. R. Co. Purchase, 261 I. C. C. 405, 434; Erie R. Co. Trackage Rights, 295 I. C. C. 303, 305; Delaware, L. & W. R. Co. Trackage Rights, 295 I. C. C. 743, 755-756.

When there is a collective agreement and the Commission, as here, adopts or approves it, the “notwithstanding” sentence of § 5 (2) (f) is not, as suggested, read out of the Act. The collective agreement then becomes a “condition” of the Commission’s “approval” of the consolidation under the first sentence of § 5 (2) (f) and its provisions are deemed by the Commission to be “a fair and equitable arrangement to protect the interests” of the employees within the meaning of the first sentence. Thus, the significance of the “notwithstanding” proviso is that it provides the machinery for the terms of a pre-merger collective agreement and thus supplies the minimum measure of fairness required under the first sentence of § 5 (2)(f).

In 1965 an implementing agreement, entered into after the consolidation, was made between the union and petitioner. It is petitioner’s claim that it limited these junior employees to their average monthly earnings on the Sandusky Line during the 12 months before the consolidation, regardless of how many months the employees had worked during that period on other sections of the Toledo Division. That is to say, each of them would receive under the 1965 implementing agreement an average monthly compensation based only on their seasonal Sandusky Line work. Thus, respondent Nemitz had an average monthly compensation of $583.34 representing pre-consolidation work on several sections of the Toledo Division. Under the § 5 (2) (f) agreement governing the consolidation, his earnings would be supplemented to the extent that his post-consolidation monthly earnings fell short of $583.34. Under the 1965 agreement his average monthly compensation, based solely on his work on the Sandusky Line, would be $194.40. Even this amount would not be paid if, as likely, he received that much in unemployment compensation. The 1965 agreement obviously placed these junior employees “in a worse position with respect to compensation,” as those words are used in the pre-consolidation agreement. For they no longer could work on any part of the former Toledo Division except the Sandusky Line and their prior compensation, reflecting in part work on other parts of the Toledo Division, was no longer a measure of the “compensation” to which they were entitled under the pre-consolidation agreement. For those whose historical average monthly earnings were so slight that they were now on unemployment insurance, the result would be much more drastic than “normal attrition,” which the Commission said was the only way under the protective conditions by which jobs would be eliminated. The Court of Appeals said:

“An agreement made pursuant to the last sentence of Sec. 5 (2) (f) may vary the protections afforded by the I. C. C. order, but it may not substantially abrogate employees' rights grounded in an I. C. C. order.” 436 F. 2d, at 848.

We agree with that view. We also agree that the 1965 implementing agreement abrogated the standard of “compensation” covered by the pre-consolidation agreement which had come under the protective order of the Commission.

The judgment below is therefore

Affirmed.

Mr. Justice Blackmun,

with whom The Chief Justice and Mr. Justice White join,

dissenting.

I am sympathetic with the respondents and with the unfortunate predicament in which, largely by their own acts, they find themselves. I feel, however, that the Court’s decision to the effect that federal district court jurisdiction exists here and that the judgment of the Court of Appeals is to be affirmed amounts only to a sympathetically imposed judicial cure that is not authorized by the Interstate Commerce Act, that is violative of Congress’ intent, and that ignores unusually clear legislative history.

In January 1962 the Norfolk & Western and the respondents’ own Brotherhood, and others, entered into an agreement for the protection of employees in the event of approval of the anticipated merger. This agreement, by the express terms of its paragraph VIII, was directed to “the last sentence of Section 5 (2) (f) of the Interstate Commerce Act.” In October 1965 the railroad and the union, and others, entered into an Implementing Agreement. It then follows, it seems to me, that a number of factors demand a result opposite to that reached by the Court:

1. The very language of the statute. Section 5 (2) (f) was added to the Interstate Commerce Act by the Transportation Act of 1940, 54 Stat. 906. It is the Act’s only provision relating to employee benefits. The thrust of the subsection’s third and last sentence, beginning with the exclusionary word “notwithstanding,” is crucial here.

The first sentence directs the Interstate Commerce Commission, as a condition of its approval of any railroad merger, to “require a fair and equitable arrangement to protect the interests of the railroad employees affected.” The second sentence states that in its order of approval the Commission shall include provisions protective for a four-year period. The third sentence then reads:

“Notwithstanding any other provisions of this Act, an agreement pertaining to the protection of the interests of said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or representatives of its or their employees.”

This plain and unambiguous “notwithstanding” language, obviously and necessarily directed to and affecting only the two preceding sentences, requires that an agreement entered into by the carrier and the collective-bargaining representative be controlling. The two preceding sentences have application, therefore, only when an agreement “pertaining to the protection of the interests of said employees” is not executed. In the case before us the carrier and the Brotherhood did execute an agreement of the kind specified, and the “notwithstanding” language should come into play. The Court today nullifies that sentence and reads it out of the Act.

2. The legislative history. This history is clearly antagonistic to respondents’ position here. The Transportation Act of 1940 was no accident or floor-conceived legislation. Indeed, Senator Wheeler was led to “venture the assertion that the bill was given more careful and more thoughtful consideration than any other bill which has ever come before the Senate in my time.” 86 Cong. Rec. 11270. It emerged from the economically distressed days of the 1930’s, from the Washington Job Protection Agreement of 1936 (see Hearings on H. R. 2531 before the House Committee on Interstate and Foreign Commerce, 76th Cong., 1st Sess., vol. 1, p. 231), and from recommendations of President F. D. Roosevelt’s Committee of Six (see Hearings, supra, at 259).

What is now § 5 (2) (f) was not contained in the original House version (H. R. 4862, 76th Cong., 1st Sess.), or in the original Senate version (S. 2009, 76th Cong., 1st Sess.), or, indeed, in the draft contained in the initial H. R. Conf. Rep. No. 2016 of April 26, 1940, 76th Cong., 3d Sess. It surfaced as § 7 of the revised draft submitted with the supplanting H. R. Conf. Rep. No. 2832 of August 7, 1940, 76th Cong., 3d Sess. The new language replaced the earlier Harrington Amendment to the House version. The reasons for the change effected by the conferees are set forth on pages 68-69 of H. R. Conf. Rep. No. 2832. Although the comments there do not focus on the “notwithstanding” sentence, its purpose and significance are apparent from the debates.

Representative Harrington had succeeded in amending the House bill to include a directive that the Commission approve no transaction resulting in unemployment or displacement of employees. 84 Cong. Rec. 9882, 9886, 10127. The conference committee, however, eliminated all employee-protection provisions. When the bill again reached the House floor; Mr. Wadsworth proposed the recommitment of the bill with instructions, among others, to include merger provisions and the “notwithstanding” sentence, drafted by the railroad unions themselves. 86 Cong. Rec. 5886. As to that sentence, Congressman Harrington, an advocate of compulsory-employee protection, had said:

“But this provision also contains a clause that permits the industry, through the processes of collective bargaining, to work out its problems in a democratic manner.” 86 Cong. Rec. 5871.

The motion to recommit passed. The conference committee in due course then reported § 5 (2) (f) in its present form. Congressman Wolverton, a conferee, spoke in support of the revised bill:

“And, then there was also further uncertainty in the opinion of some representatives of railroad labor as to whether the language of the amendment might not preclude voluntary agreements, between management and men by collective bargaining, from being entered into.
“I want, however, to make it clear that no one who expressed the opinions I have mentioned thought for a moment that any of these possibilities were ever intended by the sponsors of the amendment.” 86 Cong. Rec. 10189.

And Congressman Lea referred to the “notwithstanding” sentence as “a provision confirming the right of employees to enter into agreements with railroads to take care of them in case of unemployment as a result of consolidations.” 86 Cong. Rec. 10178.

For me, all this evinces a clear and positive intent on the part of the authors of this legislation to make appropriate provision for employee protection, but explicitly to withdraw Commission-dictated protection whenever the carrier and the union, before merger, voluntarily arrive at protective provisions satisfactory to them. This was the purpose of the “notwithstanding” clause: Furthermore, it is in accord with the “strong federal labor policy against governmental interference with the substantive terms of collective-bargaining agreements.” Chicago & North Western R. Co. v. United Transportation Union, 402 U. S. 570, 579 n. 11 (1971). In my view, the Court’s decision today, and the decisions of the District Court and the Court of Appeals, overlook or choose to ignore this purpose and this legislative history. Instead, a result is achieved that is the exact opposite of the congressional intent and policy.

Respondents urge that this Court in the past has recognized the Commission’s responsibility to review the sufficiency of third-sentence voluntary agreements and to “adopt” them as part of its orders, citing Railway Executives’ Assn. v. United States, 339 U. S. 142 (1950), and Brotherhood of Maintenance of Way Employes v. United States, 366 U. S. 169 (1961). These are the only two decisions the Court produces to support its theory of jurisdiction. Neither is apposite. The former case presented the question whether under sentence two the Commission had the power to prescribe protective provisions extending beyond the four-year period to which that sentence refers. The holding was in the affirmative. The Court now makes much of the language of “mandatory protection” in that decision. But no pre-merger voluntary agreement had been made there, and the effect of sentence three did not enter the case. Nor had a pre-merger agreement been reached in the latter Maintenance of Way case, where the issue was whether, when the Commission formulates its own protective provisions under sentence two, it must require the carrier to retain employees for the four-year period or simply to guarantee them equivalent compensation. The disagreement between the parties there arose at the Commission hearing on what protective arrangements should be imposed by the Commission in fulfillment of its sentence two duty.

The Commission seems consistently to have taken a position in line with the legislative history noted above, and with the clear meaning of the “notwithstanding” sentence. See, e. g., Great Northern Pacific & Burlington Lines-Merger-Great Northern R. Co., 331 I. C. C. 228, 278 (1967); Pennsylvania R. Co.-Merger-New York Central R. Co., 327 I. C. C. 475, 544 (1966); Norfolk & Western R. Co. and New York, Chicago & St. Louis R. Co.-Merger, 324 I. C. C. 1, 9, 90 (1964); Missouri Pacific R. Corp., in Nebraska Trustee Operation, 247 I. C. C. 653, 657 (1941).

Neither respondents nor the Court points to a single instance in which a pre-merger voluntary protective agreement directed at § 5 (2) (f) was either reviewed and found wanting by the Commission, or was “included” in the Commission’s order in any sense except that recognition of the existence of such an order is necessary for the Commission to relieve itself of the duty that would otherwise be imposed on it by sentence two.

3. The effect on collective bargaining. The result reached by the Court appears to me to require the ICC and the courts always to intrude upon collective bargaining, by reviewing the sufficiency of its substantive product, and thereby to discourage and to downgrade the collective-bargaining process that has been so firmly established in this area and so steadfastly protected. See, for example, International Association of Machinists v. Street, 367 U. S. 740 (1961). As this case makes only too clear, the general standard of sentence two of § 5 (2) (f), namely, “a worse position with respect to their employment,” permits of widely varying interpretations when applied to specific dilemmas such as that of the respondents here. The Court’s holding implies for me that any agreement between the carrier and the Brotherhood pursuant to sentence three of § 5 (2)(f), however protective, is nevertheless not to be regarded as controlling if it is subsequently deemed less protective than Commissioners or judges think it should have been. Neither the language nor the legislative history warrants our espousing such judicial overview.

4. The facts and the element of choice. Contrary to the impression one might receive from a quick appraisal of either the opinions below or that of the Court here, it is not at all clear that the Implementing Agreement took from respondents something they had a reasonable expectation of receiving when the merger was approved. On its face, the application to respondents of the 1962 agreement, the language of which (“placed in a worse position with respect to compensation”) reflected the generality of § 5 (2) (f), is ambiguous. Interpretation of this language necessarily requires an understanding of the parties’ original intentions with respect to Sandusky Line employees. Respondents were not without a substantial measure of selection of their future work at the time of the transfer of the Sandusky Line. That choice was between continued employment with the Pennsylvania, with seniority on its Toledo division maintained, or abandoning a part of their working territory and casting their lot with Norfolk & Western as acquirer of the Sandusky Line. Had they chosen to stay with the Pennsylvania, as it appears the parties to the agreement expected they would, respondents would not have brought on their present plight. For personal reasons such as, perhaps, residence in Sandusky (a factor of less than ideal convenience in the off-season regardless of the choice they made), they chose the other course and incurred the risks both of new employment and of the application of the protective provisions to them under the unexpected circumstances. This situation highlights the wisdom of the policy of§5(2)(f), namely, to leave the solution of their problem to their own Brotherhood (their bargaining representative with the Norfolk & Western as well as with the Pennsylvania), rather than to the benevolent hindsight of the Commission or of a court.

All this propels me to the conclusion that the Commission may not be held to have reviewed and incorporated the 1962 agreement into its 1964 order authorizing the merger. All it did was to state that its duty to see to the protection of employees under § 5 (2) (f) was satisfied by the execution of the 1962 agreement. It follows that there was no district court jurisdiction and that the respondents’ complaint should have been dismissed.

       It provides:
      “As a condition of its approval, under this paragraph, of any transaction involving a carrier or carriers by railroad subject to the provisions of this chapter, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. In its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transaction will not result in employees of the carrier or carriers by railroad affected by such order being in a worse position with respect to their employment, except that the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employee was in the employ of such carrier or carriers prior to the effective date of such order. Notwithstanding any other provisions of this Act, an agreement pertaining to the protection of the interests of said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or representatives of its or their employees.”

       The Commission stated in its Report, 324 I. C. C. 1, 50:
      “As previously stated herein and in appendix A, various agreements have been reached between employee representatives and the Norfolk & Western for the protection of employees adversely affected by these transactions. Our authorizations herein will, by reference, be made subject to such agreements. . . .
      “We find that, as conditioned herein, the transactions under consideration meet the requirements prescribed by sections 5 (2) and 20a of the act and conform generally with the purposes and objectives of the national transportation policy declared by Congress. We are convinced that the transactions should be approved.”
      In the Appendix to its Report and Order, 324 I. C. C., at 89, the Commission continued:
      “Norfolk & Western has entered into an agreement with 19 of the principal labor organizations, members of the Railway Labor Executives’ Association, for the protection of employees of Norfolk & Western, Nickel Plate, and Wabash, as well as persons employed on the Sandusky Line of Pennsylvania, represented by these organizations. This agreement, which provides for the assumption by Norfolk & Western of all outstanding labor contracts, schedules and agreements of Nickel Plate and Wabash, as well as those having application on the Sandusky Line, basically requires that job eliminations as a result of the unification be accomplished only through normal attrition. Under its terms, Norfolk & Western agrees to take into its employment, upon consummation of the merger, lease, and purchase, all employees of the lines involved with the guarantee that they will not be adversely affected in their employment as a result of the proposed transactions or for any reason other than furloughs due to seasonal requirements or a decline in volume of traffic or revenue.”

       The result, of course, would be that there would be no basis for judicial review of the ICC order pursuant to 28 U. S. C. § 1336.

       A synopsis of the legislative history of § 5 (2) (f) is contained in an Appendix to our opinion in St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U. S. 298, 315.

       The agreement authorized by the Commission when the merger was approved was described as follows by the Commisson, Appendix to Report and Order of Interstate Commerce Commission, 324 I. C. C., at 89:
      “The agreement also authorized Norfolk & Western to transfer the work of employees throughout the merged system and requires the labor organizations to enter into implementing agreements permitting employees either to follow their work or be assigned to other jobs within their craft or class within the same general locality as existing jobs, following a period of retraining, if necessary, at Norfolk & Western’s expense.”

       The union that negotiated the Implementing Agreement disagreed with that position as did the union’s National Board of Appeals. Both, however, proceeded on a mistaken view of the law.

      Respondents refer to Florida East Coast R. Co. Reorganization, 307 I. C. C. 5 (1958), aff’d, 312 I. C. C. 744, aff’d, 171 F. Supp. 512 (SD Fla. 1959), but the District Court’s decision in that case plainly sustained the Commission’s determination that because a bankruptcy reorganization was involved, no part of § 5 (2) (f) was applicable.


text:
    SLAYTON, PENITENTIARY SUPERINTENDENT v. SMITH
    No. 70-108.
    Decided November 16, 1971
   Per Curiam.

Respondent’s petition for habeas corpus alleged, among other things, that he had been tried and sentenced in the state courts by a senile judge. On appeal from the District Court’s dismissal of the petition without a hearing, the Court of Appeals for the Fourth Circuit noted that state remedies had not been exhausted, expressed its confidence that “if the contention is squarely raised, the state courts will be willing to afford the petitioner a reasonable opportunity to prove his case,” and observed that a claim of judicial senility raised a most “sensitive issue of state administration of state criminal justice.” 435 F. 2d 453, 460 (1970). Despite these judicious observations underscoring the fact that this case was not ripe for federal cognizance, the Court of Appeals vacated the District Court’s judgment and remanded for further proceedings with instructions to stay the case until respondent had sought relief in the Virginia state courts.

The Court of Appeals’ form of “abstention” is perhaps technically consistent with the statutory prohibition against issuing the writ where state remedies have not been exhausted. 28 U. S. C. § 2254. But, having determined that state remedies had not been exhausted, the Court of Appeals would have better served the policy of the statute had it avoided any implication as to the merits of so delicate a subject. Further, absent special circumstances, cf. Nelson v. George, 399 U. S. 224 (1970), Wade v. Wilson, 396 U. S. 282 (1970), rather than ordering retention of the casé on the District Court’s docket, the Court of Appeals should simply have vacated the judgment of the lower court and directed dismissal of the petition for failure to exhaust state remedies.

The motion of respondent for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.

So ordered.

Mr. Justice Douglas, with whom Mr. Justice Stewart joins, believing that the Court of Appeals has observed all the proprieties as well as the requirements of the Act, would affirm its judgment.


author: Per Curiam. Chief Justice Burger, Mr. Justice Blackmun,

text:
    HARRIS v. WASHINGTON et al.
    No. 70-5213.
    Decided November 16, 1971
   Per Curiam.

On June 10, 1969, a bomb sent through the mail exploded in the residence of Ralph Burdick in Clark County, Washington. The explosion killed Burdick and the petitioner’s infant son, Mark Allen Harris, and seriously injured the petitioner’s estranged wife, Laila Violet Harris. The petitioner was tried in a state court for the murder of Ralph Burdick and was acquitted by a jury. He was immediately rearrested on informations charging the murder of Mark Allen Harris and the assault upon Laila Violet Harris. To these informations the petitioner entered pleas of former jeopardy and collateral estoppel, and moved to dismiss. The trial court denied the motion and struck the defenses.

The state Court of Appeals granted a writ of prohibition on the grounds of collateral estoppel, finding that “the record demonstrates without question that the retrial of petitioner for assault and murder will require relitigation of the same ultimate fact” determined adversely to the State in the previous trial — i. e., whether it was the petitioner who had mailed the bomb. 2 Wash. App. 272, 291-292, 469 P. 2d 937, 948. The Supreme Court of Washington agreed that the same ultimate issue was involved in both prosecutions, but nevertheless reversed the Court of Appeals and denied the writ of prohibition. The court noted that a ruling on the admissibility of evidence during the murder trial had resulted in the exclusion, on grounds having “no bearing on the quality of the evidence,” of a letter allegedly written by the petitioner and containing threats against the lives of Mr. Burdick and Mrs. Harris. 78 Wash. 2d 894, 901, 480 P. 2d 484, 487-488. Because of its view that this evidence would clearly be admissible in the second trial, the court held that the issue of identity had not been “fully litigated” in the previous trial, and that the doctrine of collateral estoppel did not bar a subsequent trial in which litigation of the issue will be “complete.”

Since the state courts have finally rejected a claim that the Constitution forbids a second trial of the petitioner, a claim separate and apart from the question whether the petitioner may constitutionally be convicted of the crimes with which he is charged, our jurisdiction is properly invoked under 28 U. S. C. § 1257. See Mercantile National Bank v. Langdeau, 371 U. S. 555, 558.

In Ashe v. Swenson, 397 U. S. 436, we held that collateral estoppel in criminal trials is an integral part of the protection against double jeopardy guaranteed by the Fifth and Fourteenth Amendments. See Benton v. Maryland, 395 U. S. 784. We said that collateral estop-pel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U. S., at 443. The State concedes that the ultimate issue of identity was decided by the jury in the first trial. That being so, the constitutional guarantee applies, irrespective of whether the jury considered all relevant evidence, and irrespective of the good faith of the State in bringing successive prosecutions.

Since Ashe v. Swenson, supra, squarely controls this case, the motion for leave to proceed in forma pauperis is granted, the petition for a writ of certiorari is granted, and the judgment is

Reversed.

Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall would grant the petition and reverse the judgment both for the reasons stated in the per curiam opinion and for the reasons stated in Mr. Justice Brennan’s concurring opinion in Ashe v. Swenson, 397 U. S. 436, 448.

Chief Justice Burger,

dissenting.

The Court’s summary act without hearing argument in this case is wrong in two respects: first, it is another instance of importing into the administration of criminal justice the civil doctrine of collateral estoppel to which I dissent for the reasons stated in my dissent in Ashe v. Swenson, 397 U. S. 436, 460 (1970); second, even assuming the collateral estoppel approach has validity, the evidence in this case in the second trial is not the “same evidence” on which the first case was submitted so that this is not a case for application of that unsound doctrine.

Mr. Justice Blackmun,

dissenting.

My own views on the issue presented by this case were expressed when I wrote for the Court of Appeals in Ashe v. Swenson, 399 F. 2d 40 (CA8 1968), reversed and remanded, 397 U. S. 436 (1970). I am not persuaded as to the rightness of the Court’s imposing in that case— as a Fifth Amendment-Fourteenth Amendment imperative — the concept of collateral estoppel upon a state criminal proceeding. I could have understood a flat overruling of Hoag v. New Jersey, 356 U. S. 464 (1958), and of Ciucci v. Illinois, 356 U. S. 571 (1958), despite the interim appearance of Benton v. Maryland, 395 U. S. 784 (1969). But overruling those two cases was a step the Court, for reasons that escape me, refused to take or felt it could not take.

Neither am I persuaded by the “single frolic” or “one criminal episode” or “same transaction” theory espoused by the Justices in concurrence in Ashe v. Swenson, 397 U. S., at 448-460. That approach would place multiple but separate-shot murders under the protective umbrella of double jeopardy. I cannot subscribe to reasoning that would necessarily produce a result of that kind.

I therefore dissent.


text:
    CRUZ et al. v. HAUCK, SHERIFF
    No. 70-5343.
    Decided November 16, 1971
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Younger v. Gilmore, ante, p. 15.

Mr. Justice Douglas,

concurring.

Petitioners are prisoners who claim that the prison authorities have denied them access to law books needed to seek judicial remedies. They are inmates of the Bexar County Jail in Texas and instituted this action in the District Court to restrain the respondent’s interference with their reasonable access to hardbound law books and other legal matter. They asserted that county jail regulations and practices deprived them of their rights to seek judicial redress. Their custodians answered that prison security necessitated removing hardback covers as part of an overall scheme to arrest smuggling of contraband. Without conducting a hearing into the matter, the District Court summarily dismissed the complaint.

The question is an important one in the evolution by-statutes and constitutional decisions of a Bill of Rights for prisoners. Prisoners are not statistics, known only to a computer, but humans entitled to all the amenities and privileges of other persons, save as confinement and necessary security measures curtail their activities. Whatever security measures may be needed respecting books, it is not conceivably plausible to maintain that essential books can be totally banned.

That question is submerged in this case as the initial issue concerns these prisoners’ request to proceed in forma pauperis on appeal from the District Court’s dismissal of their action, the Court of Appeals having refused to docket their cases without prepayment of filing fees and security which litigants normally advance.

Petitioners filed a timely notice of appeal and pursuant to Fed. Rule App. Proc. 24 (a) (first paragraph) sought from the District Judge leave to appeal in forma pauperis as to prepayment of a $25 filing fee and the $250 minimum security deposit required by Fed. Rule App. Proc. 7. The District Judge refused the request, certifying in relevant part that: “This Court... is of the opinion that any appeal taken from the order of denial in this case would be frivolous, without merit, and not taken in good faith.” No other explanation was offered although in his earlier unreported order dismissing the original action the District Judge said that prisoners do not have “a right to be furnished with an extensive collection of legal materials” and that courts “may not interfere with the conduct of a prison.”

Petitioners then applied to the Court of Appeals for a similar waiver of filing fees and security. Their application was denied without opinion and their motion for reconsideration was also refused without opinion. Presented with their motion for reconsideration were memo-randa posing their primary contention now before this Court that these denials of leave to proceed in forma pauperis offended these petitioners’ rights of equal access to judicial machinery.

I

We have held, in line with Griffin v. Illinois, 351 U. S. 12 (1956), that an indigent prisoner cannot be deprived of a direct criminal appeal or of state habeas relief solely on account of his inability to prepay docketing fees. Smith v. Bennett, 365 U. S. 708 (1961) ($4 filing fee for state habeas action and $3 filing fee for appeal therefrom) ; Burns v. Ohio, 360 U. S. 252 (1959) ($20 filing fee for discretionary review of criminal appeal). In 1892 Congress authorized the federal courts to provide the disadvantaged with a wide range of in forma pauperis relief. Act of July 20, 1892, 27 Stat. 252. The benefits of this generous provision, now codified at 28 U. S. C. § 1915, have been limited, however, by the important proviso added in 1910 (36 Stat. 866) which, as now amended, reads:

“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.”

“Good faith” has been defined as a requirement that an appeal present a nonfrivolous question for review. If the district court certifies that an appeal would not present such a question, then an indigent may ask the court of appeals for permission to proceed in forma pauperis. That court must grant the renewed motion if after a de novo determination it disagrees with the district court’s application of the good-faith test. If both lower courts refuse permission, then, unless this Court vacates the court of appeals’ finding, the pauper’s appeal is ended without a hearing on the merits. See Fed. Rule App. Proc. 24 (a). It is important that in all of these proceedings the only cognizable issue is whether a summary survey (as opposed to plenary deliberation) suggests that a substantial argument could be presented. For a discussion of the procedures employed see Coppedge v. United States, 369 U. S. 438 (1962); Hardy v. United States, 375 U. S. 277 (1964).

II

Our holdings have steadily chipped away at the proposition that appeals of the poor can be disposed of solely on summary and abbreviated inquiries into frivolity rather than upon the plenary consideration granted paying appellants. In Eskridge v. Washington Prison Board, 357 U. S. 214 (1958), we held that a State may not withhold a transcript and thereby deny an appeal to a poor man merely because a trial judge believed his own conduct had avoided the production of nonfrivolous questions for review. See also Ross v. Schneckloth, 357 ü. S. 575 (1958). In Lane v. Brown, 372 U. S. 477 (1963), we decided that an impoverished prisoner’s appeal from a state coram nobis hearing could not be thwarted simply because a public defender officer believed his case lacked merit. In Ellis v. United States, 356 U. S. 674 (1958), we emphasized that a criminal appellant seeking to establish nonfrivolity under 28 U. S. C. § 1915 is entitled to more than appointed counsel’s private view that his appeal would be worthless and that if counsel withdrew for that reason the Court of Appeals was duty bound to replace him. We have also held that a Court of Appeals may not overrule the permission granted by a District Court to proceed in forma pauperis, McGann v. United States, 362 U. S. 309 (1960), but that a Court of Appeals must review de novo a trial judge’s certification that an appeal would not be in good faith, Johnson v. United States, 352 U. S. 565 (1957).

Moreover, in federal criminal appeals on direct review most circuits have provided as a matter of course the entire panoply of § 1915 relief, including counsel, transcripts, and waiver of filing fees, and security, merely upon a showing of poverty. And, to the extent that the nonfrivolity test is still enforceable elsewhere, our opinions in Coppedge, supra, and Hardy, supra, have partially attenuated its harsher effects by requiring the appointment of counsel and the provision of transcripts for the preliminary purpose of ascertaining whether appeals would produce worthwhile issues.

It is true, of course, that most of these decisions involved criminal appeals rather than civil appeals. But the equal protection concept is “not limited to criminal prosecutions” and its “protections extend as well to civil matters.” See Williams v. Shaffer, 385 U. S. 1037, 1039 (1967). Indeed, last Term, in Boddie v. Connecticut, 401 U. S. 371 (1971), we held on equal protection and due process grounds that a State could not deny a divorce to an impecunious wife solely because she could not pay relatively small filing and service-of-process fees. Moreover, of the Griffin progeny at least two of our opinions concerned civil habeas appeals, condemning filing fees substantially less burdensome than those required below by the Fifth Circuit. See Long v. District Court of Iowa, 385 U. S. 192 (1966), and Smith v. Bennett, supra. And lower court decisions have nurtured the sturdy expansion of Griffin to non-habeas civil appeals. In a civil rights case similar to the instant one, Lockhart v. D’Urso, 408 F. 2d 354 (1969), the Third Circuit held that in forma pauperis aid should normally be granted as a matter of course in order to minimize courts’ treatment of litigants based upon economic circumstances. Id., at 355. The upshot of these judicial pronouncements was forcefully summarized by Mr. Justice Black last Term: “In my view, the decision in Boddie v. Connecticut can safely rest on only one crucial foundation — that the civil courts of the United States and each of the States belong to the people of this country and that no person can be denied access to those courts, either for a trial or an appeal, because he cannot pay a fee, finance a bond, risk a penalty, or afford to hire an attorney.” Meltzer v. C. Buck LeCraw & Co., 402 U. S. 954, 955-956 (1971) (dissent from denial of certiorari).

The elusive nature of the frivolity standard is partly demonstrated by the number of times this Court has vacated findings of bad faith by the lower courts. It is no answer that we may continue to rectify such errors on an ad hoc basis, for even so indigents are nonetheless required to return to courts of appeals and only then— after substantial delay — obtain plenary review on the merits. Coppedge, supra, at 453. Wealthier litigants, of course, have no such hurdles to pass before obtaining full review of their assignments of error. Although these hurdles might be justifiable where indigents requested more substantial relief, they are too onerous where all that is at stake is the prepayment of a $25 filing fee and $250 security deposit.

It is apparent that this disparate treatment has the effect of classifying appellants according to wealth, which, like race, is a suspect classification. Griffin v. Illinois, 351 U. S. 12 (1956); Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966). See also Shapiro v. Thompson, 394 U. S. 618 (1969). Accordingly, this classification could withstand challenge only upon a showing of compelling circumstances. Respondent offers none but simply repeats the discredited maxim that paupers’ appeals are privileges, not rights.

Thus, I would not remand this case on the limited ground that the Court of Appeals may have underestimated the weight of the petitioners’ claim. Rather, I would hold that upon a showing of poverty courts of appeals henceforth must waive prepayment and may not inquire into whether an appeal may eventually pose a fruitful issue, at least in cases, such as this one, involving fundamental civil liberties.

I would grant certiorari and remand the case to the Fifth Circuit so that these petitioners may have their appeal docketed without prepayment of fees or security.

       In their complaint petitioners relied upon 28 U. S. C. § 1343 (3) ; 28 U. S. C. §2201; and 42 U. S. C. § 1983.

        Cruz v. Hauck, Civil Action SA70CA182 (WD Tex., filed Oct. 30, 1970) (unreported).

       United States Court of Appeals for the Fifth Circuit Rule 8 (d).

         Cruz v. Houck, Civil Action SA70CA182 (WD Tex., filed Dec. 3, 1970) (unreported).

        Cruz v. Hauck, Civil Action SA70CA182 (WD Tex., filed Oct. 28, 1970) (unreported).

        Cruz v. Hauck, Misc. No. 1964 (CA5, filed Feb. 1, 1971).

        Cruz v. Hauck, Misc. No. 1964 (CA5, filed Mar. 12, 1971).

       The issue at stake in the appeal was clearly not frivolous as indicated by our decision in Younger v. Gilmore, ante, p. 15, that there are limits on the extent to which prison officials may restrict inmates’ access to law books. On at least 21 occasions this Court has reversed lower courts’ holdings that only frivolous claims were sought to be presented. Rubio v. United States, 387 U. S. 90 (1967); Robinson v. United States, 372 U. S. 527 (1963); Jones v. United States, 371 U. S. 25 (1962); Gilliam v. United States, 370 U. S. 727 (1962); Garrett v. United States, 369 U. S. 662 (1962); Kemp v. United States, 369 U. S. 661 (1962); Coppedge v. United States, 369 U. S. 438 (1962); see 14 cases prior to Coppedge cited id., at 440-441, n. 1.

       See also Roberts v. LaVallee, 389 U. S. 40 (1967); Long v. District Court of Iowa, 385 U. S. 192 (1966); Draper v. Washington, 372 U. S. 487 (1963); Douglas v. California, 372 U. S. 353 (1963).

       Although no explicit equal protection clause is directed by the Constitution against the Federal Government the concept of equal protection of the laws is incorporated into the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U. S. 497 (1954).

       For a discussion of application of our in forma pawperis decisions to civil appeals in the federal courts, see Blackmun, Allowance of In Forma Pauperis Appeals in §2255 and Habeas Corpus Cases, 43 F. R. D. 343 (1967).

       Together with seven other cases, 402 U. S. 954 n. *.

       See cases cited at n. 8.

       Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968).


text:
    SCHREINER v. UNITED STATES
    No. 71-5294.
    Decided November 16, 1971
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for further proceedings, including re-entry of its judgment affirming petitioner’s conviction and consideration of the appointment of counsel for petitioner in connection with seeking review in this Court of the judgment of the Court of Appeals. 18 U. S. C. §§ 3006A (c), 3006A (d) (6), 3006A (g). See also H. R. Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964); Report of the Committee to Implement the Criminal Justice Act of 1964, presented to a Special Session of the Judicial Conference of the United States, 36 F. R. D. 285, 291 (1965); Fed. Rule Crim. Proc. 44 (a); Doherty v. United States, ante, p. 28.

Mr. Justice Douglas,

concurring.

Schreiner has a statutory right to the assistance of a lawyer in drafting his petition for certiorari. As I indicated in Doherty v. United States, ante, p. 29, that right is not conditioned on counsel’s appraisal of the merits of the petition. No conditions are attached to rights under Fed. Rule Crim. Proc. 44 and the Criminal Justice Act of 1964. This view was adopted by the Judicial Conference’s Committee to Implement the Criminal Justice Act:

“[C]ounsel appointed on appeal should advise the defendant of his right to initiate a further review by the filing of a petition for certiorari, and to file such petition, if requested by the defendant.” Report of the Committee to Implement the Criminal Justice Act, 36 F. R. D. 285, 291 (1965).

Moreover, the Tenth Circuit has implemented this suggestion. See 1A West’s Federal Forms, Supreme Court, §488 (B. Boskey ed. 1969).

There may well be instances where the remedy sought is inappropriate — e. g., an effort to obtain mandamus where the duty is only discretionary. The statute does not, however, permit an indigent’s right to be conditioned upon the fortuity of whether a lawyer believes this Court will grant his petition. We ourselves often have difficulty making that prophecy.


text:
    CAMP v. ARKANSAS
    No. 70-353.
    Decided November 16, 1971
   Per Curiam.

The petition for writ of certiorari is granted. Petitioner’s alleged procedural default does not bar consideration of his constitutional claim in the circumstances of this case. See Henry v. Mississippi, 379 U. S. 443, 447-449 (1965). The judgment of the Supreme Court of Arkansas is reversed. Griffin v. California, 380 U. S. 609 (1965). The case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


text:
    PEASE v. HANSEN, DIRECTOR, CASCADE COUNTY DEPARTMENT OF PUBLIC WELFARE, et al.
    No. 70-5376.
    Decided November 16, 1971
   Per Curiam.

The motion of the appellant for leave to proceed in forma pauperis is granted.

Whether a welfare program is or is not federally funded is irrelevant to the constitutional principles enunciated in Shapiro v. Thompson, 394 U. S. 618. The judgment of the Supreme Court of Montana is reversed.

The Chief Justice is of the opinion that probable jurisdiction should be noted and the case set for oral argument.


author: Mr. Chief Justice Burger

text:
    REED v. REED, ADMINISTRATOR
    No. 70-4.
    Argued October 19, 1971
    Decided November 22, 1971

      Allen R. Derr argued the cause for appellant. With him on the briefs were Melvin L. Wulf, Ruth Bader Ginsburg, Pauli Murray, and Dorothy Kenyon.

      Charles S. Stout argued the cause for appellee. With him on the brief was Myron E. Anderson.

    Briefs of amici curiae urging reversal were filed by J. Lee Rankin and Norman Redlich for the City of New York; by Martha W. Griffiths, Phineas Indritz, Leo Kanowitz, Marguerite Rawalt, Sylvia Roberts, and Faith Seidenberg for American Veterans Committee, Inc., et al.; and by Birch Bayh for the National Federation of Business and Professional Women’s Clubs, Inc.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

Richard Lynn Reed, a minor, died intestate in Ada County, Idaho, on March 29, 1967. His adoptive parents, who had separated sometime prior to his death, are the parties to this appeal. Approximately seven months after Richard’s death, his mother, appellant Sally Reed, filed a petition in the Probate Court of Ada County, seeking appointment as administratrix of her son’s estate. Prior to the date set for a hearing on the mother’s petition, appellee Cecil Reed, the father of the decedent, filed a competing petition seeking to have himself appointed administrator of the son’s estate. The probate court held a joint hearing on the two petitions and thereafter ordered that letters of administration be issued to appellee Cecil Reed upon his taking the oath and filing the bond required by law. The court treated §§ 15-312 and 15-314 of the Idaho Code as the controlling statutes and read those sections as compelling a preference for Cecil Reed because he was a male.

Section 15-312 designates the persons who are entitled to administer the estate of one who dies intestate. In making these designations, that section lists 11 classes of persons who are so entitled and provides, in substance, that the order in which those classes are listed in the section shall be determinative of the relative rights of competing applicants for letters of administration. One of the 11 classes so enumerated is “[t]he father or mother” of the person dying intestate. Under this section, then, appellant and appellee, being members of the same entitlement class, would seem to have been equally entitled to administer their son’s estate. Section 15-314 provides, however, that

“[o]f several persons claiming and equally entitled [under § 15-312] to administer, males must be preferred to females, and relatives of the whole to those of the half blood.”

In issuing its order, the probate court implicitly recognized the equality of entitlement of the two applicants under § 15-312 and noted that neither of the applicants was under any legal disability; the court ruled, however, that appellee, being a male, was to be preferred to the female appellant “by reason of Section 15-314 of the Idaho Code.” In stating this conclusion, the probate judge gave no indication that he had attempted to determine the relative capabilities of the competing applicants to perform the functions incident to the administration of an estate. It seems clear the probate judge considered himself bound by statute to give preference to the male candidate over the female, each being otherwise “equally entitled.”

Sally Reed appealed from the probate court order, and her appeal was treated by the District Court of the Fourth Judicial District of Idaho as a constitutional attack on § 15-314. In dealing with the attack, that court held that the challenged section violated the Equal Protection Clause of the Fourteenth Amendment and was, therefore, void; the matter was ordered “returned to the Probate Court for its determination of which of the two parties” was better qualified to administer the estate.

This order was never carried out, however, for Cecil Reed took a further appeal to the Idaho Supreme Court, which reversed the District Court and reinstated the original order naming the father administrator of the estate. In reaching this result, the Idaho Supreme Court first dealt with the governing statutory law and held that under § 15-312 “a father and mother are 'equally entitled’ to letters of administration,” but the preference given to males by § 15-314 is “mandatory” and leaves no room for the exercise of a probate court’s discretion in the appointment of administrators. Having thus definitively and authoritatively interpreted the statutory provisions involved, the Idaho Supreme Court then proceeded to examine, and reject, Sally Reed’s contention that § 15-314 violates the Equal Protection Clause by giving a mandatory preference to males over females, without regard to their individual qualifications as potential estate administrators. 93 Idaho 511, 465 P. 2d 635.

Sally Reed thereupon appealed for review by this Court pursuant to 28 U. S. C. § 1257 (2), and we noted probable jurisdiction. 401 U. S. 934. Having examined the record and considered the briefs and oral arguments of the parties, we have concluded that the arbitrary preference established in favor of males by § 15-314 of the Idaho Code cannot stand in the face of the Fourteenth Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction.

Idaho does not, of course, deny letters of administration to women altogether. Indeed, under § 15-312, a woman whose spouse dies intestate has a preference over a son, father, brother, or any other male relative of the decedent. Moreover, we can judicially notice that in this country, presumably due to the greater longevity of women, a large proportion of estates, both intestate and under wills of decedents, are administered by surviving widows.

Section 15-314 is restricted in its operation to those situations where competing applications for letters of administration have been filed by both male and female members of the same entitlement class established by § 15-312. In such situations, § 15-314 provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause.

In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U. S. 27 (1885); Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911); Railway Express Agency v. New York, 336 U. S. 106 (1949); McDonald v. Board of Election Commissioners, 394 U. S. 802 (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920). The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of §§ 15-312 and 15-314.

In upholding the latter section, the Idaho Supreme Court concluded that its objective was to eliminate one area of controversy when two or more persons, equally entitled under § 15-312, seek letters of administration and thereby present the probate court “with the issue of which one should be named.” The court also concluded that where such persons are not of the same sex, the elimination of females from consideration “is neither an illogical nor arbitrary method devised by the legislature to resolve an issue that would otherwise require a hearing as to the relative merits ... of the two or more petitioning relatives . . . .” 93 Idaho, at 514, 465 P. 2d, at 638.

Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. The crucial question, however, is whether § 15-314 advances that objective in a manner consistent with the command of the Equal Protection Clause. We hold that it does not. To give a mandatory ¡preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

We note finally that if § 15-314 is viewed merely as a modifying appendage to § 15-312 and as aimed at the same objective, its constitutionality is not thereby saved. The objective of § 15-312 clearly is to establish degrees of entitlement of various classes of persons in accordance with their varying degrees and kinds of relationship to the intestate. Regardless of their sex, persons within any one of the enumerated classes of that section are similarly situated with respect to that objective. By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause. Royster Guano Co. v. Virginia, supra.

The judgment of the Idaho Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

       In her petition, Sally Reed alleged that her son’s estate, consisting of a few items of personal property and a small savings account, had an aggregate value of less than $1,000.

       Section 15-312 provides as follows:
      “Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order:
      “1. The surviving husband or wife or some competent person whom he or she may request to have appointed.
      “2. The children.
      “3. The father or mother.
      “4. The brothers.
      “5. The sisters.
      “6. The grandchildren.
      “7. The next of kin entitled to share in the distribution of the estate.
      “8. Any of the kindred.
      "9. The public administrator.
      “10. The creditors of such person at the time of death.
      “11. Any person legally competent.
      “If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate.”

       The court also held that the statute violated Art. I, § 1, of the Idaho Constitution.

       We note that § 15-312, set out in n. 2, supra, appears to give a superior entitlement to brothers of an intestate (class 4) than is given to sisters (class 5). The parties now before the Court are not affected by the operation of § 15-312 in this respect, however, and appellant has made no challenge to that section.
      We further note that on March 12, 1971, the Idaho Legislature adopted the Uniform Probate Code, effective July 1, 1972. Idaho Laws 1971, c. 111, p. 233. On that date, §§15-312 and 15-314 of the present code will, then, be effectively repealed, and there is in the new legislation no mandatory preference for males over females as administrators of estates.