author: Per Curiam. Mr. Justice Brennan,

text:
    MURCH et al. v. MOTTRAM
    No. 72-55.
    Decided November 6, 1972
   Per Curiam.

Respondent Mottram sought habeas corpus from the United States District Court in Maine, challenging on various constitutional grounds the validity of a criminal conviction obtained in the Maine state courts. After a full evidentiary hearing, the District Court denied relief, both on the ground that respondent had deliberately bypassed state procedures established for the post-conviction adjudication of such claims, and on the ground that the constitutional claims were without merit. 330 F. Supp. 51 (1971). The Court of Appeals for the First-Circuit reversed, holding that respondent had not waived his right to raise the constitutional issues, and ruling in favor of respondent on one such issue. 458 F. 2d 626 (1972). We have concluded that, under settled principles governing the availability of federal habeas for state prisoners, the finding of the District Court as to waiver must be sustained. We therefore grant the motion of the respondent for leave to proceed in forma pauperis, grant the petition for a writ of certiorari, and reverse the judgment of the Court of Appeals.

Mottram was convicted in 1960 of larceny and of being a habitual offender, and these convictions were upheld on appeal. State v. Mottram, 158 Me. 325, 184 A. 2d 225 (1962). On that appeal, Mottram did not litigate the constitutional issue upon which the Court of Appeals based its decision. Respondent was paroled in 1963, but parole was revoked in 1965. Following that revocation, Mottram brought in state court the action that later became the main focus of concern of the Court of Appeals and the District Court. The original petition in that proceeding challenged directly the validity of the underlying convictions. Prior to the presentation of evidence to the state court judge, however, Mottram’s counsel sought to withdraw the original petition without prejudice and to substitute a “Supplemental Petition,” which challenged on constitutional grounds only the propriety of the procedures attending the revocation of respondent’s parole. At this point the state judge advised respondent’s counsel that he considered both the petition and the proceeding to be for post-conviction relief, and that therefore, under the applicable state statutes, Me. Rev. Stat. Ann., Tit. 14, §§ 5502, 5507 (1964), Mottram would either have to raise all grounds for relief from custody or be deemed to waive those that had not been asserted. Mottram’s counsel disagreed with the state judge, contending that the petition was one for common-law habeas corpus, and that therefore the statutory requirement that all grounds for attack be presented did not apply. The judge reiterated his interpretation, and the following colloquy then took place:

“THE COURT: I think I will have to ask you to deal with this at this moment in making a decision as to what you want to do on the basis that I will undoubtedly view it as post-conviction and your only remedy at that point might be an appeal on this point from my decision. I think in all fairness, I should indicate to you this is as I view it. I think that is the result we are led to by the statute, myself.
“MR. TEVANIAN [Mottram’s counsel]: I understand your position and I shall discuss it.”

(Conference between Mr. Tevanian and Mr. Mottram.) (Off-record discussion.)

(RECESS)

“MR. TEVANIAN: For the record, it is our position here that we do not attack the judgment and conviction of 1960. We are now attacking his personal freedom as a parole violator so that whatever rights we may reserve in appeal as to whether or not this is a post-conviction hearing, we would now like to avail ourselves of that reservation. We have elected to go ahead on that issue.
“THE COURT: I think that makes it clear, Brother Tevanian, for the record . . . .”

Mottram’s attack on the parole revocation procedures was unsuccessful before the state judge, and the latter’s decision was sustained on appeal by the Supreme Judicial Court of Maine. Mottram v. State, 232 A. 2d 809 (1967). In 1967, Mottram filed another petition for state post-conviction relief, in which he sought to attack collaterally the validity of the 1960 convictions upon grounds that included the constitutional ground ultimately sustained by the Court of Appeals. The Supreme Judicial Court of Maine held that the failure to present those claims in the 1965 petition, after an explicit warning by the trial judge, constituted a waiver of those claims under the applicable provisions of the Maine post-conviction statutes, and therefore those statutes precluded Mottram from raising those claims in a subsequent petition for post-conviction relief. Mottram v. State, 263 A. 2d 715 (1970). Mottram then commenced this litigation in the federal courts.

In Fay v. Noia, 372 U. S. 391, 439 (1963), this Court said:

“If a habeas applicant, after consultation with competent counsel or otherwise, understanding^ and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits — though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant’s default.”

The District Court devoted four days to such a hearing, at which the transcripts of the trials and of the state post-conviction proceedings, as well as the testimony of witnesses called by Mottram, were introduced in evidence. Following this evidentiary hearing, the District Court concluded as follows:

“From the Court’s personal observation of petitioner, it is apparent that he is of at least average intelligence and well deserves his reputation as a cunning ‘jailhouse lawyer.' He was represented at the time by counsel of unquestioned competence and integrity. It is inconceivable that his counsel did not fully explain to petitioner the possible consequences of his action. The Court, therefore, finds that petitioner was fully aware of these consequences and that by deliberately bypassing the. orderly procedures provided by the Maine post-conviction statute for raising the issues presented in his most recent state habeas petition and in his present petition in this Court, petitioner has forfeited his right to do so. [Citing cases.]” 330 F. Supp., at 57.

In Sanders v. United States, 373 U. S. 1, 18 (1963), this Court said, in speaking of habeas corpus for federal prisoners:

“Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. . . . Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay.”

There can be no doubt that States may likewise provide, as Maine has done, that a prisoner seeking post-conviction relief must assert all known constitutional claims in a single proceeding. Indeed, the Court of Appeals agreed that the Maine statutory scheme was an “orderly procedure of the state courts,” as that term is used in Fay v. Noia, supra, at 438. No prisoner has a right either under the Federal Constitution or under 28 U. S. C. § 2241 to insist upon piecemeal collateral attack on a presumptively valid criminal conviction in the face of such a statutory provision.

The Court of Appeals conceded that “[tjhere are a great many instances where a party must be bound by a mistake of his counsel.” 458 F. 2d, at 629. But it concluded that because the statutory question presented to the state trial judge, whether the Maine post-conviction statute required respondent to assert in the 1965 proceeding all of his attacks upon his detention, was not open and shut, counsel’s failure to assert the constitutional claim in the state proceeding could not be regarded as a “deliberate by-pass” under Fay v. Noia, supra, at 438-439. That court also relied on the fact that there was no “extrinsic evidence” that Mottram “was seeking to circumvent state procedures . . . .” 458 F. 2d, at 629.

Concededly, Mottram testified at the hearing in the District Court that he did not intend to waive his constitutional attacks on the underlying 1960 convictions. But if a subjective determination not to waive or to abandon a claim were sufficient to preclude a finding of a deliberate bypass of orderly state procedures, constitutionally valid procedural requirements, such as those contained in the Maine statute requiring the joining of all bases for attack in one proceeding, would be utterly meaningless. Nothing in our previous holdings in this area supports the conclusion that Mottram, having fair warning of the effect of the Maine statute, could cavalierly disregard that intended effect by simply announcing that he did not choose to be bound by it. In this sensitive and ofttimes strained area of federal-state relations, a state prisoner may not deliberately “elect” not to comply with the interpretation of the state procedural statute by the state court, and then assert in federal court that no rights were waived because he did not have the subjective intent to waive his constitutional claims. The Court of Appeals apparently felt that so long as the highest state court has not construed the relevant procedural statute, a prisoner is free to adhere to his own interpretation and to establish thereby that he did not deliberately ignore state procedure. But here, respondent had reasonable warning from the trial judge of the risk that he ran in declining to assert his claim in the first proceeding, and nonetheless chose to run that risk. Such conduct fully supported the District Court’s conclusion that he had deliberately chosen to bypass orderly state procedures, and the Court of Appeals erred in upsetting that determination.

Reversed.

Mr. Justice Brennan,

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

dissenting.

I dissent and would affirm because in my view the Court of Appeals reached the correct result on the facts presented.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Blackmun,

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL VAN LINES
    No. 71-895.
    Argued October 12, 1972
    Decided November 7, 1972
    Stewart, J., delivered the opinion of the Court, in which Btjrger, C. J., and Douglas, Brennan, White, Marshall, Powell, and Rehnquist, JJ., joined. Blacicmun, J., filed an opinion concurring in the judgment, post, p. 53.

      Peter G. Nash argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, Samuel Huntington, Patrick Hardin, Norton J. Come, and Linda Sher.

      Norman H. Kirshman argued the cause for respondent. With him on the briefs was Louis R. Garcia.

      Briefs of amici curiae were filed by J. Albert Woll, Laurence Oold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, and by Milton Smith, Jerry Kronenberg, and Gerard C. Smetana for the Chamber of Commerce of the United States.
   Mr. Justice Stewart

delivered the opinion of the Court.

The respondent is a moving and storage company based in Santa Maria, California. In August 1967, Local 381 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America began a campaign to organize the employees of moving and storage firms in the area. By September 21, five of the respondent’s employees had signed union authorization cards; it is undisputed that they constituted a clear majority of what would be an appropriate bargaining unit. Instead of demanding recognition by the respondent, the Union on September 21, 1967, petitioned the National Labor Relations Board for certification as the exclusive bargaining agent of the respondent’s employees.

Shortly thereafter, on October 2 and 3, the Union held meetings where it was announced that the respondent had at first consented to a representation election but had later withdrawn its consent. It was decided at the October 3 meeting that all of the moving and storage companies involved in the Union organization campaign should be struck, and on October 4, picketing commenced at the respondent’s place of business.

Four of the respondent’s employees, Robert and Manuel Vasquez, Richard Dicus, and Salvador Casillas, were present at the respondent’s premises on the morning when picketing commenced. They refused to cross the picket line. The next morning, Robert and Manuel Vasquez and Richard Dicus received identical telegrams which read: “For failure to report to work as directed at 7 A. M. on Wednesday Oct. 4, 1967 you are being permanently replaced. [Signed] International Van Lines.” It is undisputed that at the time of the discharges, the respondent had not in fact hired permanent replacements.

Casillas sought reinstatement in late November, and the other three discharged employees made unconditional offers to return to work on December 12. At least as to these three, the respondent refused reinstatement, claiming that it had at that point hired permanent replacements. The Union then went to the National Labor Relations Board with unfair labor practice charges against the respondent.

The Board determined that the labor picketing that commenced on October 4 was activity protected under § 7 of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U. S. C. § 157, and concluded that the subsequent discharges of striking employees discriminated against lawful union activity and were unfair labor practices under §§ 8 (a)(1) and 8(a)(3) of the Act, 29 U. S. C. §§ 158 (a)(1), (a)(3).

It is settled that an employer may refuse to reinstate economic strikers if in the interim he has taken on permanent replacements. NLRB v. Mackay Radio & Telegraph Co., 304 U. S. 333, 345-346. It is equally settled that employees striking in protest of an employer’s unfair labor practices are entitled, absent some contractual or statutory provision to the contrary, to unconditional reinstatement with back pay, “even if replacements for them have been made.” Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 278. Since the strike in the instant case continued after the unfair labor practices had been committed by the employer, the Board reasoned that the original economic strike became an unfair labor practice strike on October 5, when the three telegrams were sent. The Board held the four employees to be unfair labor practice strikers and, accordingly, ordered their unconditional reinstatement with back pay.

The Board then sought enforcement of its order in the Court of Appeals for the Ninth Circuit. The Court of Appeals agreed that the labor picketing was a lawful economic strike, and that the discharges of the striking employees were unfair labor practices. 448 F. 2d 905, 910-911. Nevertheless, the Court of Appeals reversed the portion of the Board’s order providing for reinstatement with back pay, reasoning as follows:

“The strikers whose discharges constituted the unfair labor practice were, at the time of their discharges, protesting only the original grievance. Any strikers subsequently discharged might legitimately be considered unfair labor practice strikers, for they would be protesting not only the original grievance but also the subsequent unfair labor practice. The initially discharged strikers were obviously not protesting their own discharges, which had not yet occurred. To assimilate their status to that of their co-workers who had not yet been discharged would eliminate the distinction between [the] economic-striker-reinstatement rule (Mackay Radio & Tele graph) and the unfair-labor-practice-striker-reinstatement rule (Mastro Plastics) in cases like this one.” Id., at 911-912.

Consistent with its determination that the discharged employees were economic strikers entitled to reinstatement only if the employer could not show legitimate and substantial business justifications for refusing to take them back, the Court of Appeals remanded the case for further findings concerning the reasons for the employer’s refusal to rehire them. Id., at 912. Because this decision appeared to involve principles important to the administration of the National Labor Relations Act as amended, we granted the Board’s petition for certiorari, 405 U. S. 953.

Both the Board and the Court of Appeals have agreed that the labor picketing was a lawful economic strike, and the validity of that conclusion is not before us. Given that hypothesis, the Board and the Court of Appeals were clearly correct in concluding that the respondent committed unfair labor practices when it fired its striking employees. “[T]he discharge of economic strikers prior ... to the time their places are filled constitutes an unfair labor practice.” NLRB v. Globe Wireless, 193 F. 2d 748, 750; NLRB v. Comfort, Inc., 365 F. 2d 867, 874; NLRB v. McCatron, 216 F. 2d 212, 215. We need not decide, however, whether the Board was correct in determining that the discharged employees assumed the status of unfair labor practice strikers on October 5, 1967, to reach the conclusion that the Court of Appeals erred in refusing to enforce the Board’s order of reinstatement with back pay.

Unconditional reinstatement of the discharged employees was proper for the simple reason that they were the victims of a plain unfair labor practice by their employer. Quite apart from any characterization of the strike that continued after the wrongful discharges occurred, the discharges themselves were a sufficient ground for the Board’s reinstatement order. “Reinstatement is the conventional correction for discriminatory discharges,” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 187, and was clearly within the Board’s authority. 29 U. S. C. § 160(c).

It would undercut the remedial powers of the Board with respect to § 8 violations, and subvert the protection of § 7 of the Act, to hold that the employees’ rights to reinstatement arising from the discriminatory discharges were somehow forfeited merely because they continued for a time to engage in their lawful strike after the unfair labor practices had been committed.

The judgment of the Court of Appeals is reversed insofar as it refused to enforce the Board’s order that the discharged employees be reinstated with back pay.

It is so ordered.

Mr. Justice Blackmun,

concurring in the judgment.

The result mandated by the narrow factual situation presented in this case need not be automatically imposed whenever an economic striker is discharged before being permanently replaced. Although the Court's opinion speaks only of permanent replacement as a justification for refusal to reinstate an economic striker, the Court has recognized in the past that, in addition to permanent replacement, other “legitimate and substantial business justifications” for not reinstating an economic striker may exist. NLRB v. Fleetwood Trailer Co., 389 U. S. 375, 378-380 (1967). The Court is not faced in the present case with other “legitimate and substantial business justifications” because the employer, who bears the burden of proof, asserted only the permanent-replacement justification. The finding of an unfair labor practice here is not to be read, therefore, as necessarily precluding an employer from reliance on appropriate justifications other than permanent replacement.

Since the employer failed to show any business justification arising before the discharges, these workers enjoyed reinstatement rights when they were discrimina-torily discharged. I concur in the reversal of the Court of Appeals’ judgment because preservation of the rights existing before the workers were discharged is the appropriate remedy to provide “a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination.” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 194 (1941).

       Casillas did not receive such a telegram, but the Court of Appeals found that he was discharged at about the same time as the other three, and for the same reasons. 448 F. 2d 905, 909.

       There remains some question as to whether Casillas, a part-time employee, was actually denied subsequent employment or whether instead there had been no occasion for the employer to use his services. The Court of Appeals remanded to the Board for a determination of this question — a determination that will affect the amount of back pay, if any, that Casillas is entitled to receive.

       The Court of Appeals also rejected the Board’s finding of an unfair labor practice in the form of conversations between the son of the respondent’s president and the employees, 448 F. 2d, at 908-909, but this aspect of the judgment is not before us.

       The Court of Appeals construed the picketing as a strike for the purpose of forcing the respondent employer to agree to a consent election, 448 F. 2d, at 910, and held this to be protected under the Act. The respondent disagrees. But since no timely cross-petition for certiorari was filed by the respondents, this question is not before us. Alaska Industrial Board v. Chugach Electric Assn., 356 U. S. 320, 325; NLRB v. Express Publishing Co., 312 U. S. 426, 431-432; Morley Construction Co. v. Maryland Casualty Co., 300 U. S. 185, 191. We therefore proceed on the premise that the Union was engaged in protected activity, while intimating no view on the merits of this portion of the decision of the Court of Appeals.

       The Court of Appeals remanded to the Board for a determination of whether Casillas had actually been denied employment subsequent to his request for reinstatement, and did not reach the propriety of the bargaining order entered by the Board. We leave these aspects of the Court of Appeals decision undisturbed.


author: Per Curiam.

text:
    RIVAS et al. v. COZENS, DIRECTOR, DEPARTMENT OF MOTOR VEHICLES OF CALIFORNIA, et al.
    No. 71-5780.
    Decided November 13, 1972
   Per Curiam.

The appellants’ supplemental brief filed October 14, 1972, recites:

“The California Supreme Court’s decision in Rios [v. Cozens, 7 Cal. 3d 792, 499 P. 2d 979 (1972),] has been given full prospective and retroactive effect. Cal. Sup. Ct. Order Denying Stay Pending Appeal, filed August 30, 1972. Accordingly, the individual petitioners herein, Celestino V. Rivas and Zeferino Samaniego, have now been accorded the opportunity for a personal evidentiary hearing regarding the suspension of their driver’s licenses.”

Accordingly the motion for leave to proceed in forma pauperis is granted, the judgment is vacated, and the case is remanded to the United States District Court for the Northern District of California to determine whether this case has become moot.


text:
    GIVENS et al. v. W. T. GRANT CO.
    No. 72-5256.
    Decided November 13, 1972
   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 Second Circuit for reconsideration of its order of dismissal in light of 28 U. S. C. § 1447 (c).


author: Mr. Justice Brennan Mr. Justice White,

text:
    WARD v. VILLAGE OF MONROEVILLE
    No. 71-496.
    Argued October 17, 1972
    Decided November 14, 1972
    Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Stewart, Marshall, Blackmun, and Powell, JJ., joined. White, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 62.

      Bernard A. Berkman argued the cause for petitioner. With him on the brief was Niki Z, Schwartz.

      Franklin D. Eckstein argued the cause for respondent. With him on the brief was Joseph F. Dush.

   Mr. Justice Brennan

delivered the opinion of the Court.

Pursuant to Ohio Rev. Code Ann. § 1905.01 et seq. (1968), which authorizes mayors to sit as judges in cases of ordinance violations and certain traffic offenses, the Mayor of Monroeville, Ohio, convicted petitioner of two traffic offenses and fined him $50 on each. The Ohio Court of Appeals for Huron County, 21 Ohio App. 2d 17, 254 N. E. 2d 375 (1969), and the Ohio Supreme Court, 27 Ohio St. 2d 179, 271 N. E. 2d 757 (1971), three justices dissenting, sustained the conviction, rejecting petitioner’s objection that trial before a mayor who also had responsibilities for revenue production and law enforcement denied him a trial before a disinterested and impartial judicial officer as guaranteed by the Due Process Clause of the Fourteenth Amendment. We granted certiorari. 404 U. S. 1058 (1972).

The Mayor of Monroeville has wide executive powers and is the chief conservator of the peace. He is president of the village council, presides at all meetings, votes in case of a tie, accounts annually to the council respecting village finances, fills vacancies in village offices and has general overall supervision of village affairs. A major part of village income is derived from the fines, forfeitures, costs, and fees imposed by him in his mayor’s court. Thus, in 1964 this income contributed $23,589.50 of total village revenues of $46,355.38; in 1965 it was $18,508.95 of $46,752.60; in 1966 it was $16,085 of $43,585.13; in 1967 it was $20,060.65 of $53,931.43; and in 1968 it was $23,439.42 of $52,995.95. This revenue was of such importance to the village that when legislation threatened its loss, the village retained a management consultant for advice upon the problem.

Conceding that “the revenue produced from a mayor’s court provides a substantial portion of a municipality’s funds,” the Supreme Court of Ohio held nonetheless that “such fact does not mean that a mayor’s impartiality is so diminished thereby that he cannot act in a disinterested fashion in a judicial capacity.” 27 Ohio St. 2d, at 185, 271 N. E. 2d, at 761. We disagree with that conclusion.

The issue turns, as the Ohio court acknowledged, on whether the Mayor can be regarded as an impartial judge under the principles laid down by this Court in Tumey v. Ohio, 273 U. S. 510 (1927). There, convictions for prohibition law violations rendered by the Mayor of North College Hill, Ohio, were reversed when it appeared that, in addition to his regular salary, the Mayor received $696.35 from the fees and costs levied by him against alleged violators. This Court held that “it certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” Id., at 523.

The fact that the mayor there shared directly in the fees and costs did not define the limits of the principle. Although “the mere union of the executive power and the judicial power in him can not be said to violate due process of law,” id., at 534, the test is whether the mayor’s situation is one “which would offer a possible temptation to the average man as a judge to forget the ■burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused . . . .” Id., at 532. Plainly that “possible temptation” may also exist when the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor’s court. This, too, is a “situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, [and] necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.” Id., at 534.

This situation is wholly unlike that in Dugan v. Ohio, 277 U. S. 61 (1928), which the Ohio Supreme Court deemed controlling here. There the Mayor of Xenia, Ohio, had judicial functions but only very limited executive authority. The city was governed by a commission of five members, including the Mayor, which exercised all legislative powers. A city manager, together with the commission, exercised all executive powers. In those circumstances, this Court held that the Mayor’s relationship to the finances and financial policy of the city was too remote to warrant a presumption of bias toward conviction in prosecutions before him as judge.

Respondent urges that Ohio's statutory provision, Ohio Rev. Code Ann. § 2937.20 (Supp. 1971), for the disqualification of interested, biased, or prejudiced judges is a sufficient safeguard to protect petitioner’s rights. This argument is not persuasive. First, it is highly dubious that this provision was available to raise petitioner’s broad challenge to the mayor’s court of this village in respect to all prosecutions there in which fines may be imposed. The provision is apparently designed only for objection to a particular mayor “in a specific case where the circumstances in that municipality might warrant a finding of prejudice in that case.” 27 Ohio St. 2d, at 184, 271 N. E. 2d, at 760 (emphasis added). If this means that an accused must show special prejudice in his particular case, the statute requires too much and protects too little. But even if petitioner might have utilized the procedure to make his objection, the Ohio Supreme Court passed upon his constitutional contention despite petitioner’s failure to invoke the procedure. In that circumstance, see Raley v. Ohio, 360 U. S. 423, 436 (1959), he may be heard in this Court to urge that the Ohio Supreme Court erred in holding that he had not established his Fourteenth Amendment claim.

Respondent also argues that any unfairness at the trial level can be corrected on appeal and trial de novo in the County Court of Common Pleas. We disagree. This “procedural safeguard” does not guarantee a fair trial in the mayor’s court; there is nothing to suggest that the incentive to convict would be diminished by the possibility of reversal on appeal. Nor, in any event, may the State’s trial court procedure be deemed constitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in the first instance. Accordingly, the judgment of the Supreme Court of Ohio is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice White,

with whom Mr. Justice Rehnquist joins,

dissenting.

The Ohio mayor who judged this case had no direct financial stake in its outcome. Tumey v. Ohio, 273 U. S. 510 (1927), is therefore not controlling, and I would not extend it.

To justify striking down the Ohio system on its face, the Court must assume either that every mayor-judge in every case will disregard his oath and administer justice contrary to constitutional commands or that this will happen often enough to warrant the prophylactic, per se rule urged by petitioner. I can make neither assumption with respect to Ohio mayors nor with respect to similar officials in 16 other States. Hence, I would leave the due process matter to.be decided on a case-by-case basis, a question which, as I understand the posture of this case, is not now before us. I would affirm the judgment.

       Ordinance No. 59-9:
      “WHEREAS, the legislation known as the County Court law passed by the 102nd General Assembly greatly reduces the jurisdictional powers of Mayor Courts as of January 1, 1960; and
      “WHEREAS, such restrictions may place such a hardship upon law enforcement personnel in this village and surrounding areas as to endanger the health, welfare and safety of persons residing or being in our village; and
      “WHEREAS, other such provisions of this legislation may cause such a reduction in revenue to this village that an additional burden may result from increased taxation and/or curtailment of services essential to the health, welfare and safety of this village; . . .
      “BE IT ORDAINED BY THE VILLAGE OF [MONROE-VILLE] OHIO:
      “Section 1. That the services of the management consulting firm of Midwest Consultants, Incorporated of Sandusky, Ohio, be employed to conduct a survey and study to ascertain the extent of the effects of the County Court Law on law enforcement and loss of revenue in and to the Village of [Monroeville], Ohio, so that said Village can prepare for the future operations of the Village to safeguard the heath [sic], welfare and safety of its citizens . . .”
      Moreover, Monroeville’s Chief of Police, appointed by the Mayor, Ohio Rev. Code Ann. § 737.15 (Supp. 1971), testified that it was his regular practice to charge suspects under a village ordinance, rather than a state statute, whenever a choice existed. App. 9. That policy must be viewed in light of §733.40 (1954), which provides that fines and forfeitures collected by the Mayor in state cases shall be paid to the county treasury, whereas fines and forfeitures collected in ordinance and traffic cases shall be paid into the municipal treasury. Petitioner asserts that the Mayor conceded at trial that this policy was carried out under the Mayor’s orders. The record lends itself to this inference. App. 10-11.

       The question presented on this record is the constitutionality of the Mayor’s participation in the adjudication and punishment of a defendant in a litigated case where he elects to contest the charges against him. We intimate no view that it would be unconstitutional to permit a mayor or similar official to serve in essentially a ministerial capacity in a traffic or ordinance violation case to accept a free and voluntary plea of guilty or nolo contendere, a forfeiture of collateral, or the like.


author: Mr. Justice Douglas

text:
    GOTTSCHALK, ACTING COMMISSIONER OF PATENTS v. BENSON et al.
    No. 71-485.
    Argued October 16, 1972
    Decided November 20, 1972
    Douglas, J., delivered the opinion of the Court, in which all Members joined except Stewart, Blackmun, and Powell, JJ., who took no part in the consideration or decision of the case.

      Richard B. Stone argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Kauper, Acting Assistant Attorney General Comegys, Howard E. Shapiro, Richard H. Stern, and S. William Cochran.

      Hugh B. Cox argued the cause for respondents. With him on the brief were Henry P. Sailer, Michael Boudin, William L. Keefauver, and Robert 0. Nimtz.

    Briefs of amici curiae urging reversal were filed by James M. Clabault and Edward G. Fiorito for Burroughs Corp.; by Henry L. Hanson and D. D. Allegretti for Honeywell, Inc.; by Lloyd N. Cutler, Ezekiel G. Stod-dard, Deanne C. Siemer, Nicholas DeB. Katzenbach, and Elmer W. Galbi for International Business Machines Corp.; and by Donald J. Gavin for the Business Equipment Manufacturers Assn.
    Briefs of amici curiae urging affirmance were filed by Sidney Neuman, Tom Arnold, and Jack C. Goldstein for the American Patent Law Assn.; by Ciaron N. White
      and Louis Robertson for the Chicago Bar Assn.; by James J. Hill and William E. Dominick for the Patent Law Association of Chicago; by Timothy L. Tilton for Iowa State University Research Foundation, Inc.; by Michael I. Rackman for Institutional Networks Corp.; by David J. Toomey for Whitlow Computer Systems, Inc.; by Virgil E. Woodcock, Richard E. Kurtz, and Oswald O. Hayes for Mobil Oil Corp.; by Morton C. Jacobs for the Association of Data Processing Service Organizations et al.; by Mr. Jacobs for Applied Data Research, Inc.; and by Howard J. Marsh for Computer Software Analysts, Inc., et al.
   Mr. Justice Douglas

delivered the opinion of the Court.

Respondents filed in the Patent Office an application for an invention which was described as being related “to the processing of data by program and more particularly to the programmed conversion of numerical information” in general-purpose digital computers. They claimed a method for converting binary-coded decimal (BCD) numerals into pure binary numerals. The claims were not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use. They purported to cover any use of the claimed method in a general-purpose digital computer of any type. Claims 8 and 13 were rejected by the Patent Office but sustained by the Court of Customs and Patent Appeals, - C. C. P. A. (Pat.) -, 441 F. 2d 682. The case is here on a petition for a writ of certiorari. 405 U. S. 915.

The question is whether the method described and claimed is a “process” within the meaning of the Patent Act.

A digital computer, as distinguished from an analog computer, operates on data expressed in digits, solving a problem by doing arithmetic as a person would do it by head and hand. Some of the digits are stored as components of the computer. Others are introduced into the computer in a form which it is designed to recognize. The computer operates then' upon both new and previously stored data. The general-purpose computer is designed to perform operations under many different programs.

The representation of numbers may be in the form of a time series of electrical impulses, magnetized spots on the surface of tapes, drums, or discs, charged spots on cathode-ray tube screens, the presence or absence of punched holes on paper cards, or other devices. The method or program is a sequence of coded instructions for a digital computer.

The patent sought is on a method of programming a general-purpose digital computer to convert signals from binary-coded decimal form into pure binary form. A procedure for solving a given type of mathematical problem is known as an “algorithm.” The procedures set forth in the present claims are of that kind; that is to say, they are a generalized formulation for programs to solve mathematical problems of converting one form of numerical representation to another. From the generic formulation, programs may be developed as specific applications.

The decimal system uses as digits the 10 symbols 0, 1, 2, 3, 4, 5, 6, 7, 8, and 9. The value represented by any digit depends, as it does in any positional system of notation, both on its individual value and on its relative position in the numeral. Decimal numerals are written by placing digits in the appropriate positions or columns of the numerical sequence, i. e., “unit” (10°), “tens” (101), “hundreds” (102), “thousands” (103), etc. Accordingly, the numeral 1492 signifies (1X103) + (4X102) + (9X101) +(2X10°).

The pure binary system of positional notation uses two symbols as digits — 0 and 1, placed in a numerical sequence with values based on consecutively ascending powers of 2. In pure binary notation, what would be the tens position is the twos position; what would be hundreds position is the fours position; what would be the thousands position is the eights. Any decimal number from 0 to 10 can be represented in the binary system with four digits or positions as indicated in the following table.

Shown as the sum of powers of 2

2s 22 21

Decimal (8) (4) (2) (1) Pure Binary

0 = 0 + 0 + 0 + 0 = 0000

1 = 0 + 0 + 0 + 2° = 0001

2 = 0 + 0 + 21 + 0 = 0010

3 = 0 + 0 + 21 + 2° = 0011

4 = 0 + 22 + 0 + 0 = 0100

5 = 0 + 22 + 0 + 2° = 0101

6 = 0 + 22 + 21 + 0 = 0110

7 = 0 + 22 + 21 + 2° = 0111

8 = 23 + 0 + 0 + 0 = 1000

9 = 23 + 0 + 0 + 2° = 1001

10 = 23 + 0 + 21 + 0 = 1010

The BCD system using decimal numerals replaces the character for each component decimal digit in the decimal numeral with the corresponding four-digit binary numeral, shown in the righthand column of the table. Thus decimal 53 is represented as 0101 0011 in BCD, because decimal 5 is equal to binary 0101 and decimal 3 is equivalent to binary 0011. In pure binary notation, however, decimal 53 equals binary 110101. The conversion of BCD numerals to pure binary numerals can be done mentally through use of the foregoing table. The method sought to be patented varies the ordinary arithmetic steps a human would use by changing the order of the steps, changing the symbolism for writing the multiplier used in some steps, and by taking subtotals after each successive operation. The mathematical procedures can be carried out in existing computers long in use, no new machinery being necessary. And, as noted, they can also be performed without a computer.

The Court stated in Mackay Co. v. Radio Corp., 306 U. S. 86, 94, that “[w]hile a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.” That statement followed the longstanding rule that “[a]n idea of itself is not patentable.” Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 507. “A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.” Le Roy v. Tatham, 14 How. 156, 175. Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work. As we stated in Funk Bros. Seed Co. v. Kalo Co., 333 U. S. 127, 130, “He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.” We dealt there with a “product” claim, while the present case deals with a “process” claim. But we think the- same principle applies.

Here the “process” claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion. The end use may (1) vary from the operation of a train to verification of drivers’ licenses to researching the law books for precedents and (2) be performed through any existing machinery or future-devised machinery or without any apparatus.

In O’Reilly v. Morse, 15 How. 62, Morse was allowed a patent for a process of using electromagnetism to produce distinguishable signs for telegraphy. Id., at 111. But the Court denied the eighth claim in which Morse claimed the use of “electro magnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances.” Id., at 112. The Court in disallowing that claim said, “If this claim can be maintained, it matters not by what process or machinery the result is accomplished. For aught that we now know, some future inventor, in the onward march of science, may discover a mode of writing or printing at a distance by means of the electric or galvanic current, without using any part of the process or combination set forth in the plaintiff’s specification. His invention may be less complicated — less liable to get out of order— less expensive in construction, and in its operation. But yet, if it is covered by this patent, the inventor could not use it, nor the public have the benefit of it, without the permission of this patentee.” Id., at 113.

In The Telephone Cases, 126 U. S. 1, 534, the Court explained the Morse case as follows: “The effect of that decision was, therefore, that the use of magnetism as a motive power, without regard to the particular process with which it was connected in the patent, could not be claimed, but that its use in that connection could.” Bell’s invention was the use of electric current to transmit vocal or other sounds. The claim was not “for the use of a current of electricity in its natural state as it comes from the battery, but for putting a continuous current in a closed circuit into a certain specified condition suited to the transmission of vocal and other sounds, and using it in that condition for that purpose.” Ibid. The claim, in other words, was not “one for the use of electricity distinct from the particular process with which it is connected in his patent.” Id., at 535. The patent was for that use of electricity “both for the magneto and variable resistance methods.” Id., at 538. Bell’s claim, in other words, was not one for all telephonic use of electricity.

In Corning v. Burden, 15 How. 252, 267-268, the Court said, “One may discover a new and useful improvement in the process of tanning, dyeing, etc., irrespective of any particular form of machinery or mechanical device.” The examples given were the “arts of tanning, dyeing, making waterproof cloth, vulcanizing India rubber, smelting ores.” Id., at 267. Those are instances, however, where the use of chemical substances or physical acts, such as temperature control, changes articles or materials. The chemical process or the physical acts which transform the raw material are, however, sufficiently definite to confine the patent monopoly within rather definite bounds.

Cochrane v. Deener, 94 U. S. 780, involved a process for manufacturing flour so as to improve its quality. The process first separated the superfine flour and then removed impurities from the middlings by blasts of air, reground the middlings, and then combined the product with the superfine. Id., at 785. The claim was not limited to any special arrangement of machinery. Ibid. The Court said,

“That a process may be patentable, irrespective of the particular form of the instrumentalities used, cannot be disputed. If one of the steps of a process be that a certain substance is to be reduced to a powder, it may not be at all material what instrument or machinery is used to effect that object, whether a hammer, a pestle and mortar, or a mill. Either may be pointed out; but if the patent is not confined to that particular tool or machine, the use of the others would be an infringement, the general process being the same. A process is a mode of treatment of certain materials to produce a given result. It is an. act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.” Id., at 787-788.

Transformation and reduction of an article “to a different state or thing” is the clue to the patentability of a process claim that does not include particular machines. So it is that a patent in the process of “manufacturing fat acids and glycerine from fatty bodies by the action of water at a high temperature and pressure” was sustained in Tilghman v. Proctor, 102 U. S. 707, 721. The Court said, “The chemical principle or scientific fact upon which it is founded is, that the elements of neutral fat require to be severally united with an atomic equivalent of water in order to separate from each other and become free. This chemical fact was not discovered by Tilgh-man. He only claims to have invented a particular' mode of bringing about the desired chemical union between the fatty elements and water.” Id., at 729.

Expanded Metal Co. v. Bradford, 214 U. S. 366, sustained a patent on a “process” for expanding metal. A process “involving mechanical operations, and producing a new and useful result,” id., at 385-386, was held to be a patentable process, process patents not being limited to chemical action.

Smith v. Snow, 294 U. S. 1, and Waxham v. Smith, 294 U. S. 20, involved a process for setting eggs in staged in-eubation and applying mechanically circulated currents of air to the eggs. The Court, in sustaining the function performed (the hatching of eggs) and the means or process by which that is done, said:

“By the use of materials in a particular manner he secured the performance of the function by a means which had never occurred in nature, and had not been anticipated by the prior art; this is a patentable method or process. ... A method, which may be patented irrespective of the particular form of the mechanism which may be availed of for carrying it into operation, is not to be rejected as ‘functional,’ merely because the specifications show a machine capable of using it.” 294 U. S., at 22.

It is argued that a process patent must either be tied to a particular machine or apparatus or must operate to change articles or materials to a “different state or thing.” We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedents. It is said that the decision precludes a patent for any program servicing a computer. We do not so hold. It is said that we have before us a program for a digital computer but extend our holding to programs for analog computers. We have, however, made clear from the start that we deal with a program only for digital computers. It is said we freeze process patents to old technologies, leaving no room for the revelations of the new, onrushing technology. Such is not our purpose. What we come down to in a nutshell is the following.

It is conceded that one may not patent an idea. But in practical effect that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.

It may be that the patent laws should be extended to cover these programs, a policy matter to which we are not competent to speak. The President’s Commission on the Patent System rejected the proposal that these programs be patentable:

“Uncertainty now exists as to whether the statute permits a valid patent to be granted on programs. Direct attempts to patent programs have been rejected on the ground of nonstatutory subject matter. Indirect attempts to obtain patents and avoid the rejection, by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further and should not be permitted.
“The Patent Office now cannot examine applications for programs because of a lack of a classification technique and the requisite search files. Even if these were available, reliable searches would not be feasible or economic because of the tremendous volume of prior art being generated. Without this search, the patenting of programs would be tantamount to mere registration and the presumption of validity would be all but nonexistent.
“It is noted that the creation of programs has undergone substantial and satisfactory growth in the absence of patent protection and that copyright protection for programs is presently available.”

If these programs are to be patentable, considerable problems are raised which only committees of Congress can manage, for broad powers of investigation are needed, including hearings which canvass the wide variety of views which those operating in this field entertain. The technological problems tendered in the many briefs before us indicate to us that considered action by the Congress is needed.

Reversed.

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

APPENDIX TO OPINION OF THE COURT

Claim 8 reads:

“The method of converting signals from binary coded decimal form into binary which comprises the steps of

“(1) storing the binary coded decimal signals in a re-entrant shift register,

“(2) shifting the signals to the right by at least three places, until there is a binary '1' in the second position of said register,

“(3) masking out said binary T in said second position of said register,

“(4) adding a binary 1’ to the first position of said register,

“(5) shifting the signals to the left by two positions,

“(6) adding a T to said first position, and

“(7) shifting the signals to the right by at least three positions in preparation for a succeeding binary 1’ in the second position of said register.”

Claim 13 reads:

“A data processing method for converting binary coded decimal number representations into binary number representations comprising the steps of

“(1) testing each binary digit position '1/ beginning with the least significant binary digit position, of the most significant decimal digit representation for a binary ‘O’ or a binary T;

“(2) if a binary ‘O’ is detected, repeating step (1) for the next least significant binary digit position of said most significant decimal digit representation;

“(3) if a binary ‘V is detected, adding a binary '1’ at the (i+l)th and (i+3)th least significant binary digit positions of the next lesser significant decimal digit representation, and repeating step (1) for the next least significant binary digit position of said most significant decimal digit representation;

“(4) upon exhausting the binary digit positions of said most significant decimal digit representation, repeating steps (1) through (3) for the next lesser significant decimal digit representation as modified by the previous execution of steps (1) through (3); and

“(5) repeating steps (1) through (4) until the second least significant decimal digit representation has been so processed.”

       They are set forth in the Appendix to this opinion.

       Title 35 U. S. C. § 100 (b) provides:
      “The term ‘process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.”
      Title 35 U. S. C. § 101 provides:
      “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

       See R. Benrey, Understanding Digital Computers 4 (1964).

       “To Promote the Progress of . . . Useful Arts,” Report of the President's Commission on the Patent System (1966).

        Id., at 13.

       See Wild, Computer Program Protection: The Need to Legislate a Solution, 54 Corn. L. Rev. 586, 604-609 (1969); Bender, Computer Programs: Should They Be Patentable?, 68 Col. L. Rev. 241 (1968); Buckman, Protection of Proprietory Interest in Computer Programs, 51 J. Pat. Off. Soc. 135 (1969).

        Amicus briefs of 14 interested groups have been filed on the merits in this case.


author: Per Curiam. Mr. Justice Marshall,

text:
    JOHNSON et al. v. NEW YORK STATE EDUCATION DEPARTMENT et al.
    No. 71-5685.
    Argued November 8, 1972
    Decided November 20, 1972

      Carl Jay Nathanson argued the cause and filed briefs for petitioners.

      Joel Lewittes, Assistant Attorney General of New York, argued the cause for respondents. With him on the brief were Louis J. Lejkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Iris A. Steel, Assistant Attorney General. Henry A. Weinstein filed a brief for respondent the Board of Education, Union Free School District No. 27.
    Briefs of amici curiae were filed by J. Harold Flannery for the Center for Law and Education, Harvard University, et al., and by John E. Coons for the American Federation of Teachers et al.
   Per Curiam.

We granted certiorari to review the judgment of the United States Court of Appeals for the Second Circuit, 449 F. 2d 871 (1971), affirming the District Court’s dismissal of petitioners’ complaint challenging the constitutionality of New York Education Law § 701 et seq. (1971). 405 U. S. 916 (1972). However, respondents’ brief states that “[o]n May 3, 1972, the qualified voters of the respondent school district elected by majority vote to assess a tax for the purchase of all textbooks for grades one through six in the schools of the district.” In light of this fact, and given the suggestion at oral argument that the books themselves have a life expectancy of five years, the judgment is vacated and the case is remanded to the United States District Court for the Eastern District of New York to determine whether this case has become moot.

Mr. Justice Marshall,

concurring.

While I join the Court’s decision, I feel obliged to state somewhat more fully what I view to be the reasons for and meaning of this remand.

The New York statutory scheme here under attack effectively denies textbooks to indigent elementary public school children unless the voters of their district approve a tax especially for the purpose of providing the books. Petitioners who are indigent recipients of public assistance allege, inter alia, that the statute, as applied to their children, creates a wealth classification violative of the Equal Protection Clause.

When this action was initiated in September 1970, respondent Board of Education of Union Free School District No. 27 was not providing free textbooks to petitioners’ children, although textbooks were available upon the payment of a fee, which petitioners were unable to afford. The practical consequence of this situation was that indigent children were forced to sit “ 'bookless, side by side in the same classroom with other more wealthy children learning with purchase [d] textbooks [thus engendering] a widespread feeling of inferiority and unfitness in poor children [which] is psychologically, emotionally and educationally disastrous to their well being.' ” Indeed, an affidavit submitted to the District Court indicated that in at least one case, an indigent child was told that “he will receive an ‘F’ for [each] day because he is without the required text-books. When the other pupils in the class read from text-books, the teacher doesn’t let him share a book with another pupil, instead she gives him paper and tells him to draw.” Despite this evidence, the Court of Appeals, with one Judge dissenting, affirmed the District Court's dismissal of the complaint. We granted certiorari.

This case obviously raises questions of large constitutional and practical importance. For two full school years children in elementary grades were denied access to textbooks solely because of the indigency of their families while these questions were being considered by the lower courts. After we had granted certiorari, however, a majority of the voters in respondent school district finally agreed to levy a tax for the purchase of textbooks for the elementary grades, and we are told that free textbooks have now been provided.

I join in the Court’s decision to remand the case so that the District Court can assess the consequences of this new development. I do so because I believe that the Court acts out of a proper sense of our constitutional duty to decide only live controversies, and because I believe that the District Judge can best resolve the factual issues upon which proper resolution of the mootness question depends. Certainly, our mere act of remanding in no way suggests any particular view as to whether this case is in fact moot. That decision is for the District Judge in the first instance.

In reaching his decision, the District Judge will, of course, have to take into account the standards that we have previously articulated for resolving mootness problems. On the one hand, “[a] case [may be] moot if subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Assn., 393 U. S. 199, 203 (1968). See also SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972). But on the other, “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave '[t]he defendant . . . free to return to his old ways.’ ” United States v. Concentrated Phosphate Export Assn., supra, at 203. In the context of constitutional questions involving electoral processes, these principles have generally found expression in the proposition that a case is not moot if “[t]he problem is . . . 'capable of repetition, yet evading review.’ ” Moore v. Ogilvie, 394 U. S. 814, 816 (1969).

In applying these standards to this case, the District Judge should ascertain the nature of the textbook problem for the elementary grades in respondent school district. Respondents have not suggested that the problem has been resolved once and for all by the recent purchases. To be sure, they do contend that the new textbooks have a useful life of five years. But does this adequately account for destruction by extraordinary events, for loss due to theft, and for obsolescence due to curriculum changes? And, even accepting the five-year figure, does this make the problem a non-recurring one insofar as the continuing viability of this litigation is concerned?

The District Judge should also investigate the posture in which the legal issues presented by this case might again arise when the books begin to wear out. Will the respondent school district delay holding a new election until the new books are actually needed? Is it possible that litigation would again have to proceed for an entire school year, or more, while indigent children are deprived of books, before the constitutionality of that deprivation is finally determined?

These seem to me essential questions for the District Court to consider on remand in disposing of the issue of mootness.

       Under New York law, local school districts are required to loan textbooks free to students in grades seven through 12. N. Y. Educ. Law §701 (1971). No such provision is made for children in grades one through six; free textbooks are to be made available to children in those grades only upon the vote of the majority of the district's eligible voters to levy a tax to provide funds for the purchase of the textbooks, N. Y. Educ. Law § 703 (1971).

       The fee imposed was $7.50 per child.

       449 F. 2d 871, 873 (CA2 1971) (quoting with approval petitioners’ allegations).

       Affidavit of Carl Jay Nathanson, App. 28.

       405 U. S. 916 (1972).

       These prior statements provide only rough guidance in this case, particularly since we deal here with an electoral process that is employed only on an irregular basis as new books are needed. Nevertheless, I think they are enlightening as to the appropriate inquiries for the District Court to make on remand.

       Nor should the District Court overlook the fact that this is a class action brought by petitioners “on their own behalf and on behalf of their children and all other persons similarly aggrieved.” Even if the case is now moot as to these particular petitioners, there may be other members of the class who remain aggrieved and thus the action may remain a viable one, see, e. g., Cypress v. Newport News General & Nonsectarian Hospital Assn., 375 F. 2d 648, 657-658 (CA4 1967); Gatling v. Butler, 52 F. R. D. 389, 394-395 (Conn. 1971). Cf. Brockington v. Rhodes, 396 U. S. 41, 43 (1969).


author: Per Curiam. Mr. Justice Douglas,

text:
    UNITED STATES v. JIM et al.
    No. 71-1509.
    Decided November 20, 1972

      Together with No. 71-1612, Utah et al. v. Jim et al., on appeal from the same court.

   Per Curiam.

The motion of the Navajo Tribe of Indians for leave to file a brief as amicus curiae in No. 71-1509, is granted.

These cases are here on appeal from a judgment of the District Court for the District of Utah that declared an Act of Congress to be unconstitutional. Jurisdiction in this Court is conferred by 28 U. S. C. §§ 1252 and 2101 (a).

In 1933, the Congress withdrew certain lands in Utah, known as the “Aneth Extension,” from the public domain and added them to the Navajo Reservation. Though no oil or gas was believed to be located on these lands, it was provided that should such mineral resources be produced in commercial quantities, “37% per centum of the net royalties accruing therefrom derived from tribal leases shall be paid to the State of Utah: Provided, That said 37% per centum of said royalties shall be expended by the State of Utah in the tuition of Indian children in white schools and/or in the building or maintenance of roads across the lands described in section 1 hereof, or for the benefit of the Indians residing therein.” 47 Stat. 1418. The remaining 62%% of the royalties generated by any such tribal mineral leases were, by implication, to go to the Navajo tribe.

After the passage of the Act, oil and gas were discovered on the Aneth Extension, and royalties were divided pursuant to the statute. The State of Utah created an Indian Affairs Commission to manage and expend the funds received by the State under the Act. As time went on, the language of the 1933 Act came to create administrative problems regarding the expenditure of the funds channeled through the State. A report of the Senate Committee on Interior and Insular Affairs noted in 1967 that the word “tuition” in the 1933 Act had created uncertainty as to the breadth of the educational program the State was authorized to finance from the royalty funds. The report also noted a difficulty in discerning precisely who was properly a beneficiary of the funds, since “many Navajo families do not live permanently within the lands set aside in 1933, but move back and forth between this area and other locations.” S. Rep. No. 710, 90th Cong., 1st Sess., 2 (1967).

To make the administration of these funds more flexible and to spread the benefits of the royalties more broadly among the Navajo community, the Congress enacted a statute in 1968 that directed the State to expend the 37%% of royalties “for the health, education, and general welfare of the Navajo Indians residing in San Juan County.” 82 Stat. 121. This statutory change expanded the pool of beneficiaries substantially, and a class action was brought on behalf of the residents of the Aneth Extension, seeking inter alia a declaration that the statute was an unconstitutional taking of property without just compensation. The District Court concluded that the 1933 Act vested certain property rights in the plaintiffs, and held the 1968 Act, with its changed pool of beneficiaries, to be unconstitutional.

The judgment of the District Court is in error. Congress in 1933 did not create constitutionally protected property rights in the appellees. The Aneth Extension was added to a tribal reservation, and the leases which give rise to mineral royalties are tribal leases. It is settled that “[w]hatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members.” Cherokee Nation v. Hitchcock, 187 U. S. 294, 307; Delaware Indians v. Cherokee Nation, 193 U. S. 127, 136. To be sure, the 1933 Act established a pattern of distribution which benefited the appellees more than other Indians on the Navajo Reservation. But it was well within the power of Congress to alter that distributional scheme. In Gritts v. Fisher, 224 U. S. 640, this Court approved a congressional enlargement of the pool of Indians who were to benefit from a distribution of tribal property. There, too, an earlier statute had established a more limited entitlement.

“But it is said that the act of 1902 contemplated that they [the beneficiaries under the first enactment] alone should receive allotments and be the participants in the distribution of the remaining lands, and also of the funds, of the tribe. No doubt such, was the purport of the act. But that, in our opinion, did not confer upon them any vested right such as would disable Congress from thereafter making provision for admitting newly born members of the tribe to the allotment and distribution. The difficulty with the appellants’ contention is that it treats the act of 1902 as a contract, when 'it is only an act of Congress and can have no greater effect.’ ... It was but an exertion of the administrative control of the Government over the tribal property of tribal Indians, and was subject to change by Congress . . . .” Id., at 648.

Congress has not deprived the Navajo of the benefits of mineral deposits on their tribal lands. It has merely chosen to re-allocate the 37%% of royalties which flow through the State in a more efficient and equitable manner. This was well within the power of Congress to do. As no “property,” in a Fifth Amendment sense, was conferred upon residents of the Aneth Extension by the 1933 Act, no violation of the Fifth Amendment was effected by the 1968 legislation. The judgment of the District Court is

Reversed.

Mr. Justice Douglas,

dissenting.

Plaintiffs below are a class of Indians with a membership of 1,500. They are a mixture of Navajo and Piute and live in an area of the Navajo Reservation called the Aneth Extension, made part of that reservation in a 1933 Act of Congress. 47 Stat. 1418. In 1968 Congress amended that Act, 82 Stat. 121, and the District Court for the District of Utah declared the amendment unconstitutional.

Prior to 1933 the Extension was part of the public lands of the United States. The area was occupied by the direct ancestors of the appellees.

The Indians in the Aneth Extension number about 1,500 people who are primitive Navajos with some mixture of Piute blood. See Sakezzie v. Utah Indian Affairs Comm’n, 198 F. Supp. 218, 220. They live in a remote and relatively inaccessible area with an average annual income per family of $240. Ibid. The Aneth Extension is in San Juan County and the 1933 Act stated: “[N]o further allotments of lands to Indians on the public domain shall be made in San Juan County, Utah, nor shall further Indian homesteads be made in said county.”

The white man was unconcerned about this domain until oil was discovered; and then he became quite active. By June 30, 1970, the royalties owing the Aneth Extension Indians had increased to $7,039,022.32. Of this, $78,000 was used to pipe water from the Aneth Extension to the adjoining lands of a white man, an “improvement” that only incidentally aided the resident Indians. Another $27,000 of Indian funds was spent for the construction of an airport and connecting road, which substantially benefited a white man’s private dude ranch operation, Some $10,000 or more was expended for administrative purposes by Utah. 198 F. Supp., at 221. When this suit was started, additional expenditures were about to be made: $175,000 to a federal agency to locate isolated water springs on the Aneth Extension and $500,000 to build a hard-surfaced road outside the boundaries of the Extension.

These primitive Navajos wanted the money used to purchase high-elevation ranges where they might have summer grazing for the livestock and thus realize a round-the-year livestock operation. Judge Christensen found that members of the Aneth Extension were the sole beneficiaries of the fund and that it should be administered with their wishes in mind.

But there are tensions and conflicts between these primitive Navajos who live on the Aneth Extension and other members of the tribe who live elsewhere. 198 F. Supp., at 221.

The State Commission did not comply with the District Court’s order but sponsored legislation to extend the benefits of the fund to other Indians. Judge Christensen ruled again that the fund was solely for the benefit of members of the Aneth Extension. Sakezzie v. Utah State Indian Affairs Comm’n, 215 F. Supp. 12. Neither opinion was appealed. But the State Commission promoted legislation to extend the benefits of the 1933 Act to other Indians. Id., at 20.

The problems the Commission had in administering the fund reached Congress and in 1968 the contested amendment was passed. 82 Stat. 121. This amendment indicates that money must be used by the State of Utah “for the health, education, and general welfare of the Navajo Indians residing in San Juan County” and that “Contribution may be made to projects and facilities within said area that are not exclusively for the benefits of the beneficiaries hereunder in proportion to the benefits to be received therefrom by said beneficiaries, as may be determined by the State of Utah . . . .” Ibid. (Emphasis added.)

The 1933 Act gave title to the land and right to the fund, not to the tribe of the Navajo, but to the Aneth community. I do not believe that under the circumstances of this case Congress had the power to expand the class of beneficiaries to include the whole tribe.

The occupants of the Extension have been a separate community for many generations. Their claim of right by continuous possession precedes the transfer of title by the United States Government. Congress made provision for the Secretary of the Interior to place other tribes on the land and, if he did, their claim would be based on territory, not membership. Since the rights were vested in those who lived on the Aneth Extension, I do not see how they can be extended to outsiders.

In Gritts v. Fisher, 224 U. S. 640, the Court upheld the power of Congress to expand the beneficiaries of certain Indian land to the children of those who already enjoyed those rights. Here the expansion is not limited to those of the same blood line. But, more important, Congress had a different legal relation to the Cherokees than it does to the appellees. “[T]he members of this tribe were wards of the United States, which was fully empowered, whenever it seemed wise to do so, to assume full control over them and their affairs, to determine who were such members, to allot and distribute the tribal lands and funds . . . .” Id., at 642. The 1933 Act states that the lands “are hereby, permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as the Secretary of the Interior may see fit to settle thereon.” 47 Stat. 1418. That would seem to freeze the existing legal rights in that area of the Aneth Extension to the inhabitants. The legal effect seems like a disclaimer on the part of the United States of any right in either the land or the minerals. It is difficult for me to see how Congress has power to change the scheme without payment of just compensation. After all, Indians are beneficiaries of the Due Process Clause of the Fifth Amendment. United States v. Creek Nation, 295 U. S. 103; Shoshone Tribe of Indians v. United States, 299 U. S. 476. They too are people, not sheep or cattle that can be given or denied whatever their overseer decrees.

Indians are also beneficiaries of the Just Compensation Clause of the Fifth Amendment. Chippewa Indians of Minnesota v. United States, 305 U. S. 479; United States v. Klamath and Moadoc Tribes, 304 U. S. 119; Sioux Tribe of Indians v. United States, 316 U. S. 317. When there is a taking of Indian lands, the compensation must take into account the mineral rights which are part of the lands. United States v. Shoshone Tribe of Indians, 304 U. S. 111. What then constitutes a taking? The majority finds no taking because ownership already existed in the Navajo tribe. The 1933 Act states, however, that all lands are “permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as the Secretary of the Interior may see fit to settle thereon,” 47 Stat. 1418. That Act plainly indicates that only those residing on that tract, not the tribe as a whole, were the beneficiaries.

If the royalty granted by the 1933 Act had been to the Standard Oil Co. or any other producer of oil, no one would dare say that the royalty could be assigned by a subsequent Congress to an oil consortium without payment of just compensation. Whenever we have made grants of public lands or interests therein to Indians the Court has held that the fact that Indians are wards and the United States a guardian does not make the Indian title defeasible. The Court in Lane v. Pueblo of Santa Rosa, 249 U. S. 110, 113, held that if the United States were allowed to take lands from Indians, “[t]hat would not be an exercise of guardianship, but an act of confiscation.”

In United States v. Creek Nation, 295 U. S., at 109-110, the Court said:

“The tribe was a dependent Indian community under the guardianship of the United States, and therefore its property and affairs were subject to the control and management of that government. But this power to control and manage was not absolute. While extending to all appropriate measures for protecting and advancing the tribe, it was subject to limitations inhering in such a guardianship and to pertinent constitutional restrictions. It did not enable the United States to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation for them . . . .”

The present cases are close to Shoshone Tribe of Indians v. United States, 299 U. S. 476, where Congress repeatedly put Arapahoes on Shoshone lands acquired under a treaty. This Court, speaking through Mr. Justice Cardozo, allowed damages to the Shoshones:

“Confusion is likely to result from speaking of the wrong to the Shoshones as a destruction of their title. Title in the strict sense was always in the United States, though the Shoshones had the treaty right of occupancy with all its beneficial incidents. . . . What those incidents are, it is needless to consider now. . . . The right of occupancy is the primary one to which the incidents attach, and division of the right with strangers is an appropriation of the land pro tanto, in substance, if not in form.” Id., at 496.

And quoting from United States v. Cook, 19 Wall. 591, Mr. Justice Cardozo added,

“The right of the Indians to the occupancy of the lands pledged to them, may be one of occupancy only, but it is ‘as sacred as that of the United States to the fee.’ ” Id., at 497.

What power remains in Congress after the express purpose of the Act “permanently [to] withdraw” the lands from disposal?

Public lands are usually subject to disposition by patent and upon its issuance, control over the transaction ceases and the patent can only be set aside by judicial proceedings in the courts. Michigan Land & Lumber Co. v. Rust, 168 U. S. 589; Moore v. Robbins, 96 U. S. 530. Thus, when Congress passed legislation giving public lands to the railroads, it was considered a contract which could not be broken by Congress when it sought to use the lands as a water-power site, Payne v. Central Pacific R. Co., 255 U. S. 228; nor could the Secretary reclaim the property. United States v. Northern Pacific R. Co., 256 U. S. 51; Santa Fe Pacific R. Co. v. Fall, 259 U. S. 197, 199. An entryman on a homestead claim does not achieve title until certain time and work conditions are met. 43 U. S. C. §§ 161-165. Yet, during this period he has the right to exclusive possession and use, unless the patent was secured by fraud. Patents are not issued in oil and gas exploration but leases are. 30 U. S. C. § 226. But that fact does not affect the power to cancel the leases. That can only be done by a failure of the lessee to comply with the lease, the statute, and regulations. 30 U. S. C. § 188. Pan American Petroleum Corp. v. Pierson, 284 F. 2d 649.

Until lands are patented, title remains in the United States. Yet even before a patent issues the claims are “valid against the United States if there has been a discovery of mineral within the limits of the claim, if the lands are still mineral, and if other statutory requirements have been met.” Best v. Humboldt Mining Co., 371 U. S. 334, 336.

The devices for doing the Indians in, when it comes to royalties in gas or oil lands, are numerous. See White v. Sinclair Prairie Oil Co., 139 F. 2d 103. But the owners of oil and gas interests (whether those interests be legal or equitable) normally have an interest separate and apart from the land where the oil and gas are discovered. See Lane v. Hughes, 228 S. W. 2d 986; 3 E. Kuntz, Oil and Gas, cc. 38 and 42 (1967); Y. Kulp, Oil and Gas Rights § 10.36 et seq. (1954). It is strange law, indeed, when the guardian (the United States) is allowed to do in the wards (the Indians) by depriving them of their equitable interest in the oil royalties which had been granted or by reducing their share of the royalties granted.

The problems of this case are typical of those that have plagued the Indians from the beginning. We should put the cases down for oral argument to make certain that these primitive Navajos receive the full benefit of the law.

       The decision of the District Court is unreported.

       While the 1933 Act remained in effect, the District Court properly insisted that the Utah State Indian Affairs Commission comply with the statutory formula for disbursements. See Sakezzie v. Utah Indian Affairs Comm’n, 198 F. Supp. 218 (declaratory judgment); 215 F. Supp. 12 (supplemental relief).

       We intimate no view as to the rights a tribe might have if Congress were to deprive it of the value of mineral royalties generated by tribal lands.

       The Act admitting Utah to the Union provided:
      “That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.” 28 Stat. 108.

       That Act (47 Stat. 1418), after describing the Aneth Extension by metes and bounds, provided that those public lands “be, and the same are hereby, permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as the Secretary of the Interior may see fit to settle thereon: Provided, That no further allotments of lands to Indians on the public domain shall be made in San Juan County, Utah, nor shall further Indian homesteads be made in said county under the Act of July 4, 1884 (23 Stat. 96; U. S. C., title 43, sec. 190). Should oil or gas be produced in paying quantities within the lands hereby added to the Navajo Reservation, 37% per centum of the net royalties accruing therefrom derived from tribal leases shall be paid to the State of Utah: Provided, That said 37% per centum of said royalties shall be expended by the State of Utah in the tuition of Indian children in white schools and/or in the building or maintenance of roads across the lands described in section 1 hereof, or for the benefit of the Indians residing therein.”


text:
    EVCO, dba EVCO INSTRUCTIONAL DESIGNS v. JONES, COMMISSIONER OF BUREAU OF REVENUE OF NEW MEXICO, et al.
    No. 71-857.
    Argued November 8, 1972
    Decided December 4, 1972

      Kendall 0. Schlenker argued the cause for petitioner. With him on the briefs was James M. Parker.

      John C. Cook, Assistant Attorney General of New Mexico, argued the cause for respondents. With him on the brief was David L. Norvell, Attorney General.
   Per Curiam.

The petitioner, Evco, is a New Mexico corporation that employs writers, artists, and draftsmen to create and design instructional programs. It develops an educational idea into a finished product that generally consists of reproducible originals of books, films, and magnetic audio tapes. Typical of its contracts is Evco’s agreement with the Department of Agriculture to develop camera-ready copies of programmed textbooks, notebooks, and manuals to be used in an orientation course for forest engineers. Evco’s contracts are negotiated and entered into outside New Mexico; it creates the reproducible originals in New Mexico, and then delivers them to its out-of-state clients. The customers in turn use the originals to publish however many books and manuals are needed to implement the instructional program.

The Commissioner of Revenue for New Mexico levied the State's Emergency School Tax and its Gross Receipts Tax on the total proceeds Evco received from these contracts. The company appealed this assessment to the Court of Appeals of New Mexico, arguing that these taxes on out-of-state sales imposed an unconstitutional burden on interstate commerce in violation of Art. I, § 8, of the Constitution. That court found that though the taxes were imposed on the proceeds of out-of-state sales of tangible personal property, rather than on the receipts from sales of services, such taxes were not an unconstitutional burden on commerce. 81 N. M. 724, 472 P. 2d 987. The Supreme Court of New Mexico declined to review the judgment.

In his brief in opposition to the petition for certiorari, which sought our review of that judgment, the Attorney General of New Mexico conceded that the State could not tax the receipts from sales of tangible personal property outside the State. We granted certiorari, vacated the judgment, and remanded the case to the Court of Appeals for reconsideration in light of the position taken by the Attorney General. 402 U. S. 969.

On remand, the Court of Appeals adhered to its prior findings that these taxes were imposed on out-of-state sales of tangible personal property, not services, but it concluded that the constitutionality of the taxes should not depend on that distinction. It reinstated and reaffirmed its prior opinion finding the taxes constitutional. 83 N. M. 110, 488 P. 2d 1214. The Supreme Coürt of New Mexico again declined to review the case, and we granted certiorari. 405 U. S. 953.

Our prior cases indicate that a State may tax the proceeds from services performed in the taxing State, even though they are sold to purchasers in another State. Hence, in Department of Treasury v. Ingram-Richardson Mfg. Co., 313 U. S. 252, the Court upheld a state gross income tax imposed on a taxpayer engaged in the process of enameling metal parts for its customers. We accepted the finding of the court below that this was a tax on income derived from services, not from the sales of finished products, and we found irrelevant the fact that the sales were made to out-of-state customers. The tax was validly imposed on the service performed in the taxing State. See also Western Live Stock v. Bureau of Revenue, 303 U. S. 250.

But a tax levied on the gross receipts from the sales of tangible personal property in another State is an impermissible burden on commerce. In J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307, we rejected as unconstitutional a State’s attempt to impose a gross receipts tax on a taxpayer’s sales of road machinery to out-of-state customers.

“The vice of the statute as applied to receipts from interstate sales is that the tax includes in its measure, without apportionment, receipts derived from activities in interstate commerce; and that the exaction is of such a character that if lawful it may in substance be laid to the fullest extent by States in which the goods are sold as well as those in which they are manufactured. Interstate commerce would thus be subjected to the risk of a double tax burden to which intrastate commerce is not exposed, and which the commerce clause forbids.” Id., at 311.

See also Gwin, White & Prince, Inc. v. Henneford, 305 U. S. 434.

As on the previous petition for certiorari, both parties accept these propositions, and both agree that if the findings of the Court of Appeals of New Mexico are accepted, its judgment must be reversed.

The only real dispute between the parties centers on the factual question of the nature and effect of the taxes. The State contends that these taxes were actually imposed on the receipts from services performed in the State, not on the income from the sale of property outside the State. It argues that the out-of-state purchasers actually paid for the educational programs developed in New Mexico, not for the camera-ready copies that were only incidental to the services purchased. But the Court of Appeals rejected this interpretation of the facts. It found in effect that the reproducible originals were the sine qua non of the contract and that it was the sale of that tangible personal property in another State that New Mexico had taxed. “There are no exceptional circumstances of any kind that would justify us in rejecting the . . . Court’s findings; they are not without factual foundation, and we accept them.” Lloyd A. Fry Roofing Co. v. Wood, 344 U. S. 157, 160. See also Grayson v. Harris, 267 U. S. 352, 357-358; Portland Railway, Light & Power Co. v. Railroad Comm’n, 229 U. S. 397, 411-412.

Accordingly, since the Court of Appeals approved the imposition of a tax on the proceeds of the out-of-state sales of tangible personal property, its judgment is

Reversed.

       Taxes were assessed for the period January 1, 1966, through December 31, 1968. From January 1, 1966, through June 30, 1967, the petitioner’s receipts were subject to the Emergency School Tax Act. N. M. Stat. Ann. §§ 72-16-2 to 72-16-19, 1953 Compilation, repealed by N. M. Laws 1966, c. 47, § 22. From July 1, 1967, through December 31, 1968, the remainder of the taxable period, Evco’s receipts were taxed under the Gross Receipts and Compensating Tax Act. N. M. Stat. Ann. §§ 72-16A-1 to 72-16A-19, 1953 Compilation (Supp. 1971).

       The court did find, however, that the receipts from sales of tangible personal property to government agencies and certain specified organizations were statutorily exempted from taxation. Those specific exemptions are not at issue here.


author: Per Curiam. Mr. Justice Blackmun,

text:
    WEBB v. TEXAS
    No. 71-6647.
    Decided December 4, 1972
   Per Curiam.

The petitioner was convicted of burglary in the Criminal District Court of Dallas County, Texas, and was sentenced to a term of imprisonment for 12 years. He appealed, raising several claims of error, among them an allegation that the trial court had violated his constitutional rights by “threatening and harassing” the sole witness for his defense, so that the witness refused to testify. The Court of Criminal Appeals of Texas affirmed his conviction, 480 S. W. 2d 398 (1972). We grant the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari and reverse the petitioner’s conviction.

The record shows that, after the prosecution had rested its case, the jury was temporarily excused. During this recess, the petitioner called his only witness, Leslie Max Mills, who had a prior criminal record and was then serving a prison sentence. At this point, the trial judge, on his own initiative, undertook to admonish the witness as follows:

“Now you have been called down as a witness in this case by the Defendant. It is the Court’s duty to admonish you that you don’t have to testify, that anything you say can and will be used against you. If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you’re up for parole and the Court wants you to thoroughly understand the chances you’re taking by getting on that witness stand under oath. You may tell the truth and if you do, that is all right, but if you lie you can get into real trouble. The court wants you to know that. You don’t owe anybody anything to testify and it must be done freely and voluntarily and with the thorough understanding that you know the hazard you are taking.”

The petitioner’s counsel objected to these comments, on the ground that the judge was exerting on the mind of the witness such duress that the witness could not freely and voluntarily decide whether or not to testify in the petitioner’s behalf, and was thereby depriving the petitioner of his defense by coercing the only defense .witness into refusing to testify. Counsel pointed out that none of the witnesses for the State had been so admonished. When the petitioner’s counsel then indicated that he was nonetheless going to ask the witness to take the stand, the judge interrupted: “Counsel, you can state the facts, nobody is going to dispute it. Let him decline to testify.” The witness then refused to testify for any purpose and was excused by the court. The petitioner’s subsequent motion for a mistrial was overruled.

On appeal, the petitioner argued that the judge’s conduct indicated a bias against the petitioner and deprived him of due process of law by driving his sole witness off the witness stand. The Court of Criminal Appeals rejected this contention, stating that, while it did not condone the manner of the admonition, the petitioner had made no objection until the admonition was completed, and there was no showing that the witness had been intimidated by the admonition or had refused to testify because of it.

We cannot agree. The suggestion that the petitioner or his counsel should have interrupted the judge in the middle of his remarks to object is, on this record, not a basis to ground a waiver of the petitioner’s rights. The fact that Mills was willing to come to court to testify in the petitioner’s behalf, refusing to do so only after the judge’s lengthy and intimidating warning, strongly suggests that the judge’s comments were the cause of Mills’ refusal to testify.

The trial judge gratuitously singled out this one witness for a lengthy admonition on the dangers of perjury. But the judge did not stop at warning the witness of his right to refuse to testify and of the-necessity to tell the truth. Instead, the judge implied that he expected Mills to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole. At least some of these threats may have been beyond the power of this judge to carry out. Yet, in light of the great disparity between the posture of the presiding judge and that of a witness in these circumstances, the unnecessarily strong terms used by the judge could well have exerted such duress on the witness’ mind as to preclude him from making a free and voluntary choice whether or not to testify.

In Washington v. Texas, 388 U. S. 14, 19 (1967), we stated:

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”

In the circumstances of this case, we conclude that the judge’s threatening remarks, directed only at the single witness for the defense, effectively drove that witness off the stand, and thus deprived the petitioner of due process of law under the Fourteenth Amendment. The admonition by the Texas Court of Criminal Appeals might well have given the trial judge guidance for future cases, but it did not serve to repair the infringement of the petitioner’s due process rights under the Fourteenth Amendment.

Accordingly, the judgment is

Reversed

Mr. Justice Blackmun,

with whom Mr. Justice Rehnquist joins,

dissenting.

The facts before us do not, in my opinion, justify the Court’s summary disposition. Petitioner Webb (who, on a prior occasion, had been convicted on still another burglary charge) was apprehended by the owner of a lumber business. The owner, armed with his shotgun, had driven to his office at three o’clock in the morning upon the activation of a burglar alarm. When he entered the building, the owner observed a broken window and an assortment of what he regarded as burglary tools on his desk. When men emerged from an adjacent room, a gun fight ensued. Two intruders escaped, but the owner, despite his having been shot twice, succeeded in holding the petitioner at gunpoint until police arrived.

Although the admonition given by the state trial judge to the sole witness proffered by the defense was obviously improper, sufficient facts have not been presented to this Court to demonstrate the depth of prejudice that requires a summary reversal. The admonition might prove far less offensive, and the conduct of the trial judge understandable, if, for example, as is indicated in petitioner’s brief, p. 8, prepared by counsel and filed with the Texas Court of Criminal Appeals, the witness were known to have been called for the purpose of presenting an alibi defense. Against the backdrop of being caught on the premises and of apparently overwhelming evidence of guilt, offset only by a bare allegation of prejudice, I would deny the petition for certiorari and, as the Court so often has done, I would remit the petitioner to the relief available to him by way of a post-conviction proceeding with a full evidentiary hearing.

      Cf. United States v. Winter, 348 F. 2d 204, 210 (1965), where Judge Weinfeld, writing for the Second Circuit, stated:
      “Once a witness swears to give truthful answers, there is no requirement to 'warn him not to commit perjury or, conversely to direct him to tell the truth.’ It would render the sanctity of the oath quite meaningless to require admonition to adhere to it.”

      Petitioner’s counsel assured the Court of Criminal Appeals that the witness would not have been called “unless he had been previously interviewed and found to be helpful to the appellant’s cause.” Brief for Appellant on First Motion for Rehearing 7, Webb v. Texas, 480 S. W. 2d 398 (Ct. Crim. App. Tex. 1972). An evidentiary hearing would allow petitioner’s trial counsel to outline the testimony that was expected from the witness.
      A prior trial is mentioned in the record. An evidentiary hearing might reveal events at the prior trial that justified the trial judge’s unusual concern about possible perjury.