source: Caselaw Access Project

author:
Per Curiam.
      Mr. Justice White,

license: Public Domain

text:
    MORRIS et al. v. SCHOONFIELD, WARDEN, et al.
    No. 782.
    Argued April 22, 1970
    Decided June 29, 1970

      Robert G. Fisher argued the cause for appellants. With him on the briefs were Aaron M. Schreiber, Elsbeth Levy Bothe, and Melvin L. Wulf.

      George L. Russell, Jr., argued the cause for appellees. With him on the brief were Francis B. Burch, Attorney-General of Maryland, Alfred J. O’Ferrall III, Assistant Attorney General, Ambrose T. Hartman, and Roger C. Duncan.

   Per Curiam.

We noted probable jurisdiction and set the case for oral argument with Williams v. Illinois, ante, p. 235, decided today. However, Maryland has recently enacted legislation dealing directly with the issue presented, and our holding in Williams, that an indigent may not be imprisoned beyond the maximum term specified by statute solely because of his failure to pay a fine and court costs, may shed further light on the question raised here. We therefore vacate the judgment and remand the case to the District Court for reconsideration in light of the intervening legislation and our holding in Williams v. Illinois, supra.

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

Mr. Justice White,

with whom Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join,

concurring.

I agree that this case should be remanded for reconsideration in light of our opinion in Williams v. Illinois, ante, p. 235, and the recent enactment by the Maryland General Assembly of new legislation bearing on the questions presented.

However, I deem it appropriate to state my view that the same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine. In each case, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.

As I understand it, Williams v. Illinois does not mean that a State cannot jail a person who has the means to pay a fine but refuses or neglects to do so. Neither does it finally answer the question whether the State’s interest in deterring unlawful conduct and in enforcing its penal laws through fines as well as jail sentences will justify imposing an “equivalent” jail sentence on the indigent who, despite his own reasonable efforts and the State’s attempt at accommodation, is unable to secure the necessary funds. But Williams means, at minimum, that in imposing fines as punishment for criminal conduct more care must be taken to provide for those whose lack of funds would otherwise automatically convert a fine into a jail sentence.

       397 U. S. 960.

       Chapter 147 of the 1970 Laws of Maryland (approved April 15, 1970).


author: Per Curiam. Mr. Justice Douglas,

text:
    SIMMONS et ux. v. WEST HAVEN HOUSING AUTHORITY
    No. 81.
    Argued December 8, 1969
    Decided June 29, 1970

      Francis X. Dineen argued the cause for appellants. With him on the brief was Joanne S. Faulkner.

      F. Michael Ahern, Assistant Attorney General, argued the cause for the State of Connecticut as amicus curiae in support of appellee. With him on the brief were Robert K. Killian, Attorney General, and Robert L. Hirtle, Jr., Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Joe Purcell of Arkansas, Duke W. Dunbar of Colorado, Theodore L. Sendak of Indiana, Kent Frizzell of Kansas, Jack P. F. Gremillion of Louisiana, James S. Erwin of Maine, A. F. Summer of Mississippi, Robert Morgan of North Carolina, Paul W. Brown of Ohio, George F. Mc-Canless of Tennessee, Vernon B. Romney of Utah, and James E. Barrett of Wyoming; and by Peter J. O’Dea, Attorney General of the Virgin Islands.
    Briefs of amici curiae urging reversal were filed by the Center on Social Welfare Policy and Law et al. and by the National Legal Aid and Defender Association.
   Per Curiam.

We noted probable jurisdiction in this case to decide whether § 52-542 of the Connecticut General Statutes requiring a bond for the protection of his landlord from a tenant who wished to appeal from a judgment in a summary eviction proceeding, offends either the Due Process or Equal Protection Clause of the Fourteenth Amendment if applied to foreclose appellate review for those too poor to post the bond, 394 U. S. 957 (1969).

Because of an ambiguity in the record concerning the underlying reason these appellants were denied an opportunity to appeal the trial court's judgment ordering that they be evicted, we now conclude that this appeal should be dismissed, DeBacker v. Brainard, 396 U. S. 28 (1969); Rescue Army v. Municipal Court, 331 U. S. 549 (1947).

After unsuccessfully litigating in the trial court a summary eviction proceeding begun by their landlords, appellants moved in the trial court for a waiver of the bond requirement so that they might appeal. The trial court, apparently of the view that it had the power to waive the statutory bond requirement in an appropriate case, denied appellants’ motion on a finding that “this appeal is being taken for the purpose of delay.” App. 23. Appellants sought review of the trial court’s denial of their motion in the Connecticut Circuit Court, and that court denied review and dismissed appellants’ appeal. It is unclear from that court’s opinion, however, whether it thought the bond requirement of § 52-542 left no room for a waiver, or instead based its refusal to hear appellants’ appeal in part on the trial court’s finding— cited in the Circuit Court’s opinion — that the appeal before it was taken only for purpose of delay. 5 Conn. Cir. 282, 250 A. 2d 527 (1968). Appellants’ petition to the Supreme Court of Connecticut to certify the case for review was declined.

In these circumstances, we deem it inappropriate for this Court to decide the constitutional issue tendered by appellants.

Dismissed.

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

Mr. Justice Douglas,

with whom Mr. Justice Marshall joins,

dissenting.

This was a summary procedure brought by a landlord to obtain possession from his tenants for nonpayment of rent. The trial court found for the landlord and the tenants appealed.

Connecticut law requires one taking an appeal in such an action to post a bond with surety. The tenants showed they were financially unable to post the bond and claimed that to require a bond with surety to obtain an appeal would under those circumstances be a denial of equal protection. The trial court refused to waive the requirement for a bond with surety saying that “the appeal is being taken for the purpose of delay.”

The Circuit Court affirmed. The Appellate Division ordered the termination of a stay of execution. 5 Conn. Cir. 282, 250 A. 2d 527. The Supreme Court denied certification.

1 would reverse this judgment. A rich tenant, whatever his motives for appeal, would obtain appellate review. These tenants, because of their poverty, obtain none. I can imagine no clearer violation of the requirement of equal protection unless it be Griffin v. Illinois, 351 U. S. 12. Whether the case is criminal or civil, wealth, like race, .is a suspect criterion for classification of those who have rights and those who do not. Harper v. Virginia Bd. of Elections, 383 U. S. 663; Lee v. Habib, 137 U. S. App. D. C. 403, 424 F. 2d 891.

What the merits of the tenants’ appeal may be is not for us to say. But the appeal raised questions not easily answered. The terms of the lease stated that it could be terminated by not less than 30 days’ notice, while apparently no more than five days’ notice was given. A housing authority that is federally assisted has the right by 42 U. S. C. § 1404a (1964 ed., Supp. V), “to maintain an action or proceeding to recover possession of any housing accommodations operated by it where such action is authorized by the statute or regulations under which such housing accommodations are administered.” There is not a word in appellee’s argument that indicates that the federal regulations permit eviction on five days’ notice where the lease requires 30 days’ notice.

The case has been argued as if appellants are “cheap skates” seeking to get something for nothing. That simply is not true, for the record shows:

“Mrs. Faulkner: Your Honor, may I urge upon you that if you grant our motion to have the defendants deposit the rent in court the landlord will not be hurt any further by delay in this proceedings. He will be protected because the monthly rent will be deposited. If he is successful on appeal he will be able to get the rent.
“The Court: Do you suggest, if that should be the conclusion, that the clerk could issue an execution upon failure to pay?
“Mrs. Faulkner: Yes.
“The Court: In other words, you will be willing to stipulate on behalf of your clients that if the rent were not paid that the clerk would, may be empowered forthwith to issue an execution?
“Mrs. Faulkner: Yes, Your Honor.
“The Court: That appeal to you all right?
“Mr. Philbin: Frankly it doesn’t. During this period of time, it could take a considerable period of time, even if the tenant pays the fund into the clerk’s office, they are not available to the plaintiff and we are still as a practical matter losing the rents during that period of time. Eventually if we prevail and get this money this would be an extended period of time.” App. 19-20.

The State of Connecticut represents that its summary eviction statute is based on an English Act of 1737, 11 Geo. 2, c. 19; and with all respect, the decisions below reflect an 18th century lawyer’s approach to the task of protecting a landed interest. Every appeal of course entails delay; and in a sense all appeals are antithetical to the spirit of summary eviction. But we live today under a different regime. Unlike 1737, appellate courts are no longer closed to the poor. Eviction laws emphasize speed for the benefit of landlords. Equal protection often necessitates an opportunity for the poor as well as the affluent to be heard. I disagree with the Court that the issue is not squarely presented in this case. I would reverse this judgment.

       At the time of the decisions below in this case, § 52-542 provided:
      “Bond on appeal; stay of execution. When any appeal is taken by the defendant in an action of summary process, he shall give a sufficient bond with surety to the adverse party, to answer for all rents that may accrue or, where no lease had existed, for the reasonable value for such use and occupancy, during the pendency of such appeal, or which may be due at the time of its final disposal; and execution shall be stayed for five days from the date judgment has been rendered, but any Sunday or legal holiday intervening shall be excluded in computing such five days. No appeal shall be taken except within said period, and if an appeal is taken within said period execution shall be stayed until the final determination of the cause, unless it appears to the judge who tried the case that the appeal was taken for the purpose of delay; and if execution has not been stayed, as hereinbefore provided, execution may then issue, except as otherwise provided in sections 52-543 to 52-548, inclusive.”
      This version of § 52-542 has been repealed and a revision substituted effective as of October 1, 1969, see Conn. Pub. Acts No. 296 (1969).

       The opinion states in one place that “[a] sufficient bond with surety is essential to a valid appeal.” 5 Conn. Cir. 282, 285, 250 A. 2d 527, 529 (1968). The court also said that “[w]ant of bond with surety, where bond with surety is by statute a prerequisite of review, furnishes a sufficient ground of dismissal of the appeal.” Id., at 288, 250 A. 2d, at 531. At oral argument here, however, the State of Connecticut, appearing as amicus curiae, contended that the statutory bond requirement could, in an appropriate ease, be waived. The opinion of the Circuit Court did not expressly pass on this issue, which it appears was not settled under Connecticut law at the time of its decision. A subsequent decision of a Connecticut circuit court suggests that the bond requirement is an absolute and necessary condition for an appeal, but it too did not consider the waiver contention made by the State before this Court, see Housing Authority v. Jones, 5 Conn. Cir. 350, 252 A. 2d 465 (1968), Moreover, this decision did not consider the effect of the 1969 amendment to § 52-542, see n. 1, supra.

       The opinion states in another place:
      “On January 19, 1968, the trial court held a special hearing on the defendants’ application for waiver of security on appeal. The court found that no rent had been paid since May 1, 1967, nor had the defendants offered to pay any part of the rent due; that the record contained ‘dilatory tactics, and [was] loaded with defenses interposed to delay and obstruct the summary process action’; and that the ‘appeal is being taken for the purpose of delay.’ Accordingly, the court denied the application for waiver of security on appeal.” 5 Conn. Cir., at 284, 250 A. 2d, at 529.
      The same Circuit Court, in later granting the landlord’s motion for an order terminating a stay of execution of the eviction order, expressly affirmed the trial court’s findings saying:
      “We have before us the entire file in the case. The record and briefs comprise some 140 typewritten pages. Upon a review of the whole matter, we are satisfied that [the trial judge] was justified in concluding, as he did when he denied the defendants’ application for a waiver of security on appeal, ‘that this appeal is being taken for the purpose of delay.’ ” 5 Conn. Cir., at 290, 250 A. 2d, at 532.

       Appellee operates a federally assisted low-rent housing project under the authority of Title Y of the Housing Act of 1959, 73 Stat. 679, 42 U. S. C. § 1401 et seq. (1964 ed. and Supp. V) and Conn. Gen. Stat. Rev. § 8-38 et seq.

       In that case Judge J. Skelly Wright, speaking for the Court of Appeals said:
      “The limits of a state’s duty affirmatively to equalize a defendant’s ability to participate meaningfully in the judicial process are only now being sketched out in the eases. The picture is far from complete, but recent cases dealing with costs in divorce cases and transcripts on appeal from proceedings involving determination of parental rights, coupled with the expansive readings being given to in forma pauperis statutes, all suggest that the trend seems to be toward more, not less, affirmative action. Thus, while most of the cases extending equal protection to the judicial process have involved criminal proceedings, the constitutional mandate that there be no invidious discrimination between indigent and rich litigants is being recognized in civil cases as well.
      “The equal protection clause applies to both civil and criminal cases; the Constitution protects fife, liberty and property. It is the importance of the right to the individual, not the technical distinction between civil and criminal, which should be of importance to a court in deciding what procedures are constitutionally required in each case. Often a poor litigant will have more at stake in a civil case than in a criminal case.” 137 U. S. App. D. C., at 412-413, 424 F. 2d, at 900-901.

       On review, the Connecticut court stated that a “sufficient bond with surety is essential to a valid appeal/' But in the setting of the opinion, as I read it, that meant no more than a description of the normal manner of effecting an appeal. And the Connecticut court’s insistence that the tenants did not lack “the economic power to make themselves heard in a court of law” refers to the fact that they were ably represented by attorneys for the New Haven Legal Assistance Association, Inc., a factor only emphasizing their indigency. Not a word in the opinions of the Connecticut courts suggests that the statutory bond requirement could not be waived.


author: Per Curiam.

text:
    UNITED STATES v. SWEET
    No. 577.
    Decided June 29, 1970
   Per Curiam.

On September 30, 1968, the District Court for the District of Columbia dismissed, “with prejudice,” an indictment charging appellee Sweet with various crimes under the D. C. Code, on a finding that the Government had not acted promptly enough in bringing the case to trial. The United States appealed this dismissal pursuant to D. C. Code § 23-105 to the Court of Appeals for the District of Columbia Circuit. That court, without making any determination of its jurisdiction under § 23-105, certified the case to this Court pursuant to 18 U. S. C. § 3731, the Federal Criminal Appeals Act.

We conclude that certification under § 3731 was not proper in the circumstances of this case. Section 3731 provides in terms for certification only “[i]f an appeal shall be taken pursuant to this section to any court of appeals which, in the opinion of such court, should have been taken directly to the Supreme Court . . . (Emphasis added.) The Government’s appeal to the Court of Appeals in this case was not pursuant to § 3731 but instead expressly pursuant to D. C. Code § 23-105, which contains no provision allowing transfer to this Court. Moreover, as noted earlier, it appears that the Court of Appeals has made no determination that it lacked jurisdiction to hear the Government’s appeal under the broad terms of § 23-105, a statute that we previously held was unaffected in scope by the subsequent passage of the Criminal Appeals Act, United States v. Burroughs, 289 U. S. 159 (1933).

Accordingly, we hold that transfer to this Court was inappropriate and we return the case to the Court of Appeals for further proceedings.

It is so ordered.

MR. Justice Douglas dissents.

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

      D. C. Code §23-105 (a) (Supp. Ill, 1970) provides:
      “In all criminal prosecutions the United States or the District of Columbia, as the case may be, shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions: Provided, That if on such appeal it shall be found that there was error in the rulings of the court during a trial, a verdict in favor of the defendant shall not be set aside.”


text:
    RASKIN, EXECUTOR v. P. D. MARCHESSINI, INC., et al.
    No. 241.
    Decided June 29, 1970
   Per Curiam.

The petition for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the Court of Appeals for reconsideration in light of Moragne v. States Marine Lines, Inc., 398 U. S. 375.


text:
    PERINI v. COLOSIMO
    No. 801.
    Decided June 29, 1970
   Per Curiam.

The motion to dispense with printing the petition and the motion of the respondent for leave to proceed in forma pauperis are granted. The petition for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of Chambers v. Maroney, ante, p. 42.

Mr. Justice Harlan is of the opinion that certiorari should be denied. However, the case having been taken for review, he would affirm the judgment below for the reasons stated in his separate opinion in Chambers v. Maroney, ante, p. 55.


text:
    DUNN v. LOUISIANA
    No. 664.
    Decided June 29, 1970
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Marshall would reverse the judgment below for the reasons stated in his separate opinion in Williams v. Florida, ante, p. 116.


text:
    CROUSE, WARDEN v. WOOD
    No. 936.
    Decided June 29, 1970
   Per Curiam.

The motion of the respondent for leave to proceed in forma pauperis and the petition for a writ of cer-tiorari are granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Chambers v. Maroney, ante, p. 42.

Mr. Justice Harlan is of the opinion that certiorari should be denied. However, the case having been taken for review, he would affirm the judgment below for the reasons stated in his separate opinion in Chambers v. Maroney, ante, p. 55.


text:
    DIAL et al. v. FONTAINE
    No. 1032.
    Decided June 29, 1970
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Gunn v. University Committee to End the War in Viet Nam, ante, p. 383.

Mr. Justice Douglas dissents from the dismissal of the appeal.


text:
    HOCKER, WARDEN v. HEFFLEY
    No. 1195.
    Decided June 29, 1970
   Per Curiam.

The motion of the respondent 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 Ninth Circuit for further consideration in light of Chambers v. Maroney, ante, p. 42.

Mr. Justice Harlan is of the opinion that certiorari should be denied. However, the case having been taken for review, he would affirm the judgment below for the reasons stated in his separate opinion in Chambers v. Maroney, ante, p. 55.


text:
    HUTCHERSON et al. v. LEHTIN et al.
    No. 1385.
    Decided June 29, 1970
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Gunn v. University Committee to End the War in Viet Nam, ante, p. 383, and Mitchell v. Donovan, 398 U. S. 427.


text:
    PENNER v. UNITED STATES
    No. 1532.
    Decided June 29, 1970
   Per Curiam.

On the basis of a confession of error by the Solicitor General and of an independent review of the record, the petition for a writ of certiorari is granted, the judgment of the Court of Appeals is vacated, and the ease is remanded to the United States District Court for the Western District of Oklahoma with instructions to dismiss the indictment.


text:
    PEET v. UNITED STATES
    No. 1886,
    Misc.
    Decided June 29, 1970
   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 District Court for the Northern District of California for resentencing. Gutknecht v. United States, 396 U. S. 295.


text:
    GUERRIERI v. UNITED STATES
    No. 1969,
    Misc.
    Decided June 29, 1970
   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 District Court for the Western District of Pennsylvania for findings as to whether or not petitioner is in fact an indigent and proceeding in good faith pursuant to 28 U. S. C. § 1915.


author: Per Curiam. Mr. Justice Blackmun,

text:
    HOYT et al. v. MINNESOTA
    No. 1544.
    Decided June 29, 1970
   Per Curiam.

The petition for a writ of certiorari is granted and the judgment is reversed, Redrup v. New York, 386 U. S. 767.

Mr. Justice Blackmun,

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

dissenting.

I am not persuaded that the First and Fourteenth Amendments necessarily prescribe a national and uniform measure — rather than one capable of some flexibility and resting on concepts of reasonableness — of what each of our several States constitutionally may do to regulate obscene products within its borders.

Here a Minnesota trial court (just as the Ohio trial court did in Walker v. Ohio, 398 U. S. 434 (1970)), endeavored to apply standards articulated by this Court in prior cases, and embodied in a precisely worded Minnesota statute, and reached the conclusion that the materials in question were obscene within the meaning of that statutory definition. Six of the seven Justices of the Supreme Court of that State, citing Redrup v. New York, 386 U. S. 767 (1967), and other decisions of this Court, have identified the offending material “for what it is,” have described it as dealing “with filth for the sake of filth,” and have held it obscene as a matter of law. 286 Minn. 92, 95, 174 N. W. 2d 700, 702. I cannot agree that the Minnesota trial court and those six justices are so obviously misguided in their holding that they are to be summarily reversed on the authority of Redrup.

At this still, for me, unsettled stage in the development of state law of obscenity in the federal constitutional context I find myself generally in accord with the views expressed by Me. Justice Harlan in Roth v. United States, 354 U. S. 476, 496, 500-503 (1957); Jacobellis v. Ohio, 378 U. S. 184, 203-204 (1964); and Memoirs v. Massachusetts, 383 U. S. 413, 455, 458-460 (1966), and with those enunciated by The Chief Justice in Cain v. Kentucky, 397 U. S. 319 (1970), and in Walker v. Ohio, supra.


text:
    KELLEY v. ARIZONA
    No. 1232,
    Mise.
    Decided June 29, 1970
   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 Supreme Court of Arizona for further consideration in light of Chambers v. Maroney, ante, p. 42.

Mr. Justice Harlan would vacate the judgment and remand the case to the Supreme Court of Arizona for the reasons stated in his separate opinion in Chambers v. Maroney, ante, p. 55.


text:
    MORICO v. UNITED STATES
    No. 672.
    Decided June 29, 1970

      Together with No. 35, Misc., Vaughn v. United States, on petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit; No. 88, Misc., McQueary v. United States, and No. 738, Misc., Callison v. United States, on petitions for writs of certiorari to the United States Court of Appeals for the Ninth Circuit.

   Per Curiam.

Motions for leave to proceed in forma pauperis in Misc. Nos. 35, 88, and 738, granted. The petitions for writs of certiorari are granted, the judgments are vacated, and the cases are remanded for further consideration in light of Welsh v. United States, 398 U. S. 333.

The Chief Justice, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Blackmun are of the opinion that certiorari should be denied.


text:
    June 22, 1970
    No. 1522.
    Adams et al. v. City of Colorado Springs et al.
   Appeal from D. C. Colo. Judgment affirmed.


text:
    No. 1356.
    Gorun et al. v. Montana.
   Appeal from Sup. Ct. Mont, dismissed for want of a substantial federal question.


text:
    No. 1537.
    Southern Railway Co. v. City of Harrodsburg.
   Appeal from Ct. App. Ky. dismissed for want of a substantial federal question.

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


text:
    No. 1588.
    Burnett v. Camden, Administratrix.
   Appeal from Sup. Ct. Ind. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 1379,
    Mise.
    Khabiri v. Coleman, Judge.
   Appeal from Sup. Ct. App. Ya. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 1730,
    Mise.
    Taylor v. California.
   Appeal from Ct. App. Cal., 4th App. Dist., dismissed for want of jurisdiction and petition for certiorari denied.


text:
    No. 1465,
    Mise.
    Levy v. Orr et al.
   Appeal from Sup. Ct. Fla. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 1467,
    Mise.
    Wood v. California.
   Appeal from App. Dept., Super. Ct. Cal., County of Orange, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 1587,
    Mise.
    Nettles v. Illinois.
   Appeal from Sup. Ct. Ill. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 1590,
    Mise.
    Murray v. Murray.
   Appeal from Sup. Ct. Ohio dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 1612.
    Harder, Commissioner of Welfare of Connecticut v. Doe et al.
   Appeal from D. C. Conn. Motion of appellees for leave to proceed in forma pauperis granted. Appeal dismissed for want of jurisdiction.


text:
    No.-.
    Pitcher v. Laird, Secretary of Defense, et al.
   C. A. 5th Cir. Application for stay of deployment, granted by Mr. Justice Black until action by the full Court, denied as moot.


text:
    No.-.
    Clay, aka Ali v. United States.
   C. A. 5th Cir. Application for modification of bail order presented to Mr. Justice Douglas, and by him referred to the Court, denied.

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


text:
    No. -.
    Vale v. Henderson, Warden.
   C. A. 5th Cir. Renewed application for bail presented to Mr. Justice Black, and by him referred to the Court, denied.

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


text:
    No. 153,
    Mise.,
    October Term, 1968.
    McCrory v. Mississippi,
   393 U. S. 532. Motion to implement judgment denied.

The Chief Justice and Mr. Justice Blackmun took no part in the consideration or decision of this motion.


text:
    No. 905.
    Grove Press, Inc., et al. v. Maryland State Board of Censors.
   Appeal from Ct. App. Md. [Probable jurisdiction noted, 397 U. S. 984.] Motion of appellants to remove case from summary calendar denied.

Mr. Justice Douglas took no part in the consideration or decision of this motion.


text:
    No. 1189.
    Lemon et al. v. Kurtzman, Superintendent of Public Instruction of Pennsylvania, et al.
   Appeal from D. C. E. D. Pa. [Probable jurisdiction noted, 397 U. S. 1034.] Motion of United Americans for Public Schools for leave to file a brief as amicus curiae granted.

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


text:
    No. 1337.
    Decker, U. S. District Judge, et al. v. Harper & Row Publishers, Inc., et al.
   C. A. 7th Cir. [Certiorari granted, 397 U. S. 1073.] Further consideration of motion of petitioners for leave to supplement record and motion of respondents to strike portions of petitioners’ designation of record postponed to hearing of case on the merits. Material submitted with petitioners’ motion may be lodged with the Clerk.


text:
    No. 1960,
    Mise.
    Van Cleave v. Nelson, Warden.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 553.
    Hackney, Commissioner of Public Welfare of Texas, et al. v. Machado et al.,
   397 U. S. 593. Motion of appellees to retax costs denied.

Mr. Justice Blackmun took no part in the consideration or decision of this motion.


text:
    No. 2245,
    Mise.
    Willard v. Hatcher, Clerk, U. S. District Court, et al.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 1555.
    Tilton et al. v. Finch, Secretary of Health, Education, and Welfare, et al.
   Appeal from D. C. Conn. Probable jurisdiction noted and case set for oral argument following No. 1189 [probable jurisdiction noted, 397 U. S. 1034].


text:
    No. 1809,
    Mise.
    Cohen v. California.
   Appeal from Ct. App. Cal., 2d App. Dist. Motion for leave to proceed in forma pauperis granted. Further consideration of question of jurisdiction postponed to hearing of case on the merits and case transferred to appellate docket.


text:
    No. 1484.
    Organization for a Better Austin et al. v. Keefe.
   App. Ct. Ill., 1st Dist. Certiorari granted.


text:
    No. 33,
    Mise.
    Odom v. United States.
   C. A. 5th Cir. Motion for leave to proceed in forma pauperis granted. Certiorari granted, limited to retroactivity of North Carolina v. Pearce, 395 U. S. 711, and case transferred to appellate docket.

Mr. Justice Marshall took no part in the consideration or decision of this motion and petition.


text:
    No. 240,
    Misc.
    Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.
   C. A. 2d Cir. Motion for leave to proceed in forma ■pauperis and certiorari granted. Case transferred to appellate docket.


text:
    No. 1247.
    Union Pacific Railroad Co. v. Hall Lumber Sales, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 1317.
    Gambino v. Immigration and Naturalization Service.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1353.
    Auerbach et al. v. United States; and Randell v. United States.
    No. 1478.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 1483.
    Vanderboom et al. v. City National Bank of Fort Smith, Arkansas.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 1518.
    Huie v. Board of Commissioners of the Alabama State Bar.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 1527.
    Fishman v. City of Stamford et al.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 1534.
    Local Union No. 167, Progressive Mine Workers of America v. National Labor Relations Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 1540.
    Williams v. United States.
   C. A. 9th Cir. Certiorari denied.


author: Mr. Justice Marshall,

text:
    No. 1011.
    Norton et al. v. Discipline Committee of East Tennessee State University et al.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Marshall,

with whom Mr. Justice Douglas and Mr. Justice Brennan join,

dissenting.

Petitioners were suspended as students at East Tennessee State University for distributing leaflets critical of the university administration. They brought an action in federal district court under 42 U. S. C. § 1983 seeking reinstatement and expungement of the records of their suspension, claiming that their rights to freedom of speech and procedural due process had been violated. The District Court denied the requested relief after holding a full evidentiary hearing, and the Court of Appeals affirmed, Judge Celebrezze dissenting. 419 F. 2d 195 (C. A. 6th Cir. 1969). I would grant certiorari.

The pamphlets involved in this case were published and distributed by students angered by what they regarded as the backward policies of the university administration and the apathy of their fellow students toward these policies. They criticize, often in a crude and sarcastic tone, the positions of the administration on such matters as dress, social regulations, ROTC, campus police behavior, and censorship of the college newspaper. They go on to draw unfavorable comparisons between the response of students at East Tennessee and the response of other students in Czechoslovakia, France, and elsewhere in this country, and call upon students to “stand up and fight” for their “constitutional right to protest, demonstrate, and demand their rights.”

No charges were brought against these students that the time, place, or manner of distribution was in any way improper. The sole charge was based squarely on the content of the pamphlets — namely, that they were “of a false, seditious and inflammatory nature.” There is no evidence that the pamphlets created any disturbance on campus, nor is there any concrete evidence from which one could infer any substantial danger that they would. Rather there is only the conclusory testimony of university officials that the pamphlets “could conceivably” have caused an eruption, and reference to “fears that we might have serious consequences.” Id., at 197. The only support given to these assertions is the description of an incident in which some 25 students visited the dean after the pamphlets were circulated and stated that they “wanted to get rid of this group of agitators.” Id., at 199.

It seems to me altogether too late in the constitutional history of this country to argue that individuals can properly be punished for pamphleteering in these circumstances. These pamphlets are similar in some ways to the broadsides circulated by popular writers in England and the Colonies, official suppression of which helped lead to adoption of the First Amendment; to the writings of Republican polemicists, against which the Sedition Act prosecutions were aimed — prosecutions this Court has said violated the First Amendment, New York Times Co. v. Sullivan, 376 U. S. 254, 273-276 (1964); and to leaflets distributed by protesters during the First World War and the 1920’s, which evoked the classic opinions of Holmes and Brandéis, since vindicated by history, upon which so much of our law of free speech and the press is based. Abrams v. United States, 250 U. S. 616, 624 (1919) (Holmes, J., dissenting); Gitlow v. New York, 268 U. S. 652, 672 (1925) (Holmes, J., dissenting); cf. Whitney v. California, 274 U. S. 357, 372 (1927) (Brandéis, J., concurring).

Indeed many of these older examples of the pam-phleteering art were far cruder in tone and more inflammatory in content than the rather mild invocations of student protest before us here. Where such writings are suppressed, they are normally called “seditious” and “inflammatory,” and legal action against them is justified— as it was here — on the ground that they constitute an “incitement” to crime or other disturbance that the offended officials have a right or duty to prevent. But to accept that formula without close examination of the facts would be to submerge the First Amendment altogether, for as Mr. Justice Holmes said, in words that are often quoted but at least as often disregarded, “[ejvery idea is an incitement.” Gitlow v. New York, supra, at 673. On this record, there was nothing approaching incitement of the kind that could constitutionally be punished as extending'beyond the realm of speech into that of action. In their own testimony, the university officials demonstrated no more than the sort of “undifferentiated fear or apprehension of disturbance,” which, as we held in Tinker v. Des Moines School District, 393 U. S. 503, 508 (1969), “is not enough to overcome the right to freedom of expression” even in the context of a classroom and as applied to high school rather than college students.

I cannot believe that this Court would hesitate one moment before striking down a criminal conviction based upon these pamphlets, or for that matter a civil judgment, or a prior restraint by injunction or administrative order against their distribution. This case differs in that the distribution took place upon a campus, the authors were college students, and the sanction was suspension from the university. As to the last point, it seems clear that suspension is punishment, and that punishment for speech is “abridgment” in the constitutional sense. Tinker v. Des Moines School District, supra. As to the former two points, they do not change the case. “The first amendment applies with full vigor on the campus of a public university.” Wright, The Constitution on the Campus, 22 Vand. L. Rev. 1027, 1037 (1969). Officials of public universities wield the powers of the State, and in my view they are no more free than policemen or prosecutors to punish speech because it is rude or disrespectful, or because it causes in them vague apprehensions, or because for any other reason they do not like its content.

Student protesters are unpopular today, and the activities of some of them fall far outside any plausible construction of the constitutional guarantees of free expression. There is a tendency to lump together the burning of buildings and the peaceful but often unpleasantly sharp expression of discontent. It seems to me most important that the courts should distinguish between the two with particular care in these days, when officials under the pressure of events and public opinion are tempted to blur the distinction. Our system promises to college students as to everyone else that they may have their say, and when it breaks that promise it gives aid and comfort to those who say that it is a sham.

      The pamphlets are reproduced in full as an appendix to the opinion of the Court of Appeals, 419 F. 2d, at 201.


text:
    No. 1538.
    Barth v. City of Louisville et al.
   Ct. App. Ky. Certiorari denied.


text:
    No. 1542.
    Cantor et ux. v. Zoning Board of Adjustment of the Township of Madison et al.
   Super. Ct. N. J. Certiorari denied.


text:
    No. 1543.
    Iroquois Industries, Inc. v. Syracuse China Corp. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1545.
    Pate, Warden v. Perry, U. S. District Judge.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 1546.
    Miriani v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 1548.
    Maiorani v. Kawasaki Kisen K. K., Kobe, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1554.
    Dapper v. Municipal Court, San Diego Judicial District.
   Ct. App. Cal.,, 4th App., Dist. Cer-tiorari denied.


text:
    No. 1561.
    Fridena v. Arizona Osteopathic Medical Assn. et al.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 1570.
    Bally Case & Cooler, Inc.; of Delaware v. National Labor Relations Board et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 1584.
    Intra Bank, S. A. v. Wille, Superintendent of Banks of New York, et al.; and American International Underwriters Corp. et al. v. Wille, Superintendent of Banks of New York, et al.
    No. 1595.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 1075.
    Phillips, Reformatory Superintendent v. Booker.
   C. A. 10th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 1646.
    Copinger, Warden v. Blackburn.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 1654.
    Bendix Corp. et al. v. Balax, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 1523.
    Mosca v. United States.
   Ct. Cl. Motion to dispense with printing petition granted. Cer-tiorari denied.


text:
    No. 1558.
    Zimmerman v. United States et al.
   C. A. 3d Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 1560.
    Sommer et al. v. United States.
   C. A. 7th Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 288,
    Mise.
    Reyes v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 567,
    Mise.
    Clayton v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 705,
    Mise.
    Whitted v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 788,
    Mise.
    Bradford v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 909,
    Mise.
    McClain v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 1053,
    Mise.
    Terry v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 1214,
    Mise.
    Montgomery v. Brierley, Correctional Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 1279,
    Mise.
    Valdes v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1295,
    Mise.
    Gibson et al. v. Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 1336,
    Mise.
    DeJong v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 1385,
    Mise.
    Agnew v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 1397,
    Mise.
    Rhodes v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 1496,
    Mise.
    Williams v. Reincke, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1514,
    Mise.
    Jones v. Russell, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 1563,
    Mise.
    Pigman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1752,
    Mise.
    Franklin v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 1775,
    Mise.
    Blackwell v. Baker, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 1830,
    Mise.
    Wallen v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 1819,
    Mise.
    Clinton v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 1892,
    Mise.
    Robinson v. Board of Supervisors of Pima County et al.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 1918,
    Mise.
    Williams v. Oberhauser, Institution Superintendent.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 1965,
    Mise.
    Schlette v. Rosenstock.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 1974,
    Mise.
    Nipp v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 1984,
    Mise.
    Kendall v. Follette, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1986,
    Mise.
    Adams, aka Owens, et al. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 1987,
    Mise.
    Grace v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 2047,
    Mise.
    Goodman v. Cox, Penitentiary Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 2051,
    Mise.
    Glennerster v. United States; and Benanti v. United States.
    No. 2075,
    Mise.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 2062,
    Mise.
    Devers v. California et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2068,
    Mise.
    Seohnlein v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 2063,
    Mise..
    Scott v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 2070,
    Mise.
    Dougherty v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 2083,
    Mise.
    Marshall v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 2084,
    Mise.
    Osterburg v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2087,
    Mise.
    Allen v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 2089,
    Mise.
    Williams v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 2098,
    Mise.
    Puplampu v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2101,
    Mise.
    Mosby v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 2112,
    Mise.
    Pickler v. Smith, Warden.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 2116,
    Mise.
    Willard v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2119,
    Mise.
    Thaxton v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 2117,
    Mise.
    Mills v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2128,
    Mise.
    Unger v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2132,
    Mise.
    Sewell v. Warden, Maryland Penitentiary.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 2135,
    Mise.
    Verse v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 2137,
    Mise.
    Walker v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 2138,
    Mise.
    O’Shea v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 2140,
    Mise.
    Webster v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 2143,
    Mise.
    McParlin v. Rhode Island.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 2147,
    Mise.
    Stewart v. Beto, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 2150,
    Mise.
    Rollins v. Missouri.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 2151,
    Mise.
    House v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 2213,
    Mise.
    Young v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 2228,
    Mise.
    McDorman et al. v. Turner, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 2171,
    Mise.
    Teplitsky v. Associated Press et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 583,
    Mise.
    Henderson v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 955,
    Mise.
    Wright v. California Department of Corrections et al.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that cer-tiorari should be granted.


text:
    No. 1209,
    Mise.
    Stevens v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 1406,
    Mise.
    Beasley v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 1688,
    Mise.
    Boyden v. Federal Prison Industries, Inc.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 1788,
    Mise.
    Williams v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.

Mr. Justice Black is of the opinion that certiorari should be granted. Mr. Justice Blackmun took no part in the consideration or decision of this petition.


text:
    No. 834.
    Grayson v. United States,
   396 U. S. 1059, 397 U. S. 1003. Motion for leave to file second petition for rehearing denied.

Mr. Justice Blackmun took no part in the consideration or decision of this motion.


text:
    No. 156,
    Mise.,
    October Term, 1968.
    Ellenbogen v. United States,
   393 U. S. 918. Petition for rehearing denied.

Mr. Justice Douglas is of the opinion that the petition should be granted. The Chief Justice, Mr. Justice Marshall, and Mr. Justice Blackmun took no part in the consideration or decision of this petition.


text:
    No. 476.
    Sears, Roebuck & Co. v. Carpet, Linoleum, Soft Tile, & Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO, et al.,
   397 U. S. 655. Motion for leave to supplement petition for rehearing granted. Motion to defer consideration of petition for rehearing and petition for rehearing denied.

Mr. Justice Black-mun took no part in the consideration or decision of these motions and petition.-


text:
    No. 1374.
    Beatty v. Ellings et al., Goff v. Pfau, Trustee in Bankruptcy, Penney et al. v. United States,
    No. 1935,
    Mise.
    No. 2033,
    Mise.
   398 U. S. 904;

398 U. S. 931; and

398 U. S. 932. Petitions for rehearing denied.

Mr. Justice Marshall and Mr. Justice Blackmun took no part in the consideration or decision of these petitions.


text:
    June 26, 1970
    No. 2344,
    Mise.
    Trabucco v. United States.
   C. A. 5th Cir. Petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court.


text:
    No. -.
    Berk v. Laird, Secretary of Defense, et al.
   D. C. E. D. N. Y. Application for stay of deployment presented to Mr. Justice White, and by him referred to the Court, denied.

Mr. Justice Douglas and Mr. Justice Marshall took no part in the consideration or decision of this application.


text:
    June 27, 1970
    No. —.
    Robinson, Commissioner of Education of Rhode Island, et al. v. DiCenso et al.
   D. C. R. I. Application for stay of order of the United States District Court for the District of Rhode Island entered in Civil Action No. 4239 on June 17, 1970, which application was presented to Mr. Justice Brennan, and by him referred to the Court, granted, and the said order is hereby stayed pending timely filing of appeal in this Court. Should appeal be so timely filed, the stay will remain in effect pending its disposition. In the event the appeal is dismissed, the stay is to terminate automatically. Should jurisdiction be noted or postponed in the case, the stay is to remain in effect pending issuance of judgment of this Court.

MR. Justice Douglas dissents from the grant of stay. Mr. Justice White and Mr. Justice Marshall took no part in the consideration or decision of this application.


text:
    June 29, 1970
    No. 1371.
    Reader’s Digest Assn., Inc. v. Mahin, Director of Revenue of Illinois.
   Appeal from Sup. Ct. Ill. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    No. 1670,
    Mise.
    Mears v. Hocker, Warden, et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 1310,
    Mise.
    Lee v. Faulkner, Sheriff.
   Appeal from Ct. Crim. App. Okla. dismissed for want of substantial federal question.


text:
    No. 1889,
    Mise.
    Bettencourt v. California.
   Appeal from Ct, App. Cal., 3d App. Dist., dismissed for want of substantial federal question.


text:
    No. 1925,
    Mise.
    Dober v. Elko et al.
   Appeal from Sup. Ct. Pa. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 1525,
    Mise.
    Smith v. Scotland Urban Enterprises, Inc.
   Appeal from Sup. Ct. La. dismissed for want of properly presented federal question.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    No. 1568.
    Carlough v. Richardson, Secretary of Health, Education, and Welfare.
   Appeal from D. C. S. D. Fla. Judgment of United States District Court for the Southern District of Florida vacated and case remanded to that court so that it may enter a fresh judgment from which a timely appeal may be taken to the Court of Appeals.


text:
    No.-.
    United States v. Ten Reels of a Motion Picture, entitled “Quiet Days in Clichy” (Grove Press, claimant).
   D. C. C. D. Cal. Application to vacate stay heretofore issued by Mr. Justice Black denied, with leave to renew, however, if a trial on the obscenity vel non of this film has not commenced by August 3, 1970, unless any delay of the trial beyond that date has been occasioned by appellee Grove Press.

Mr. Justice Black and Mr. Justice Stewart would vacate the stay. Mr. Justice Douglas took no part in the consideration or decision of this application.


text:
    No.-.
    Florida ex rel. Faircloth, Attorney General of Florida, et al. v. M & W Theatres, Inc., et al.; and Florida ex rel. Faircloth, Attorney General of Florida, et al. v. Newton et al.
    No.-.
   Applications for stays of preliminary injunction issued by the United States District Court for the Northern District of Florida presented to Mr. Justice Black, and by him referred to the Court, granted pending timely filing and disposition of appeals. Should such appeals not be filed, these stays are to expire automatically. Should such appeals be timely docketed, these stays are to continue pending this Court’s action on the jurisdictional aspect of the cases. In the event the appeals are dismissed or judgments below summarily affirmed, these stays are to expire automatically. Should the Court note probable jurisdiction of the appeals or postpone further consideration of the questions of jurisdiction to hearings on the merits, these stays to remain in effect pending issuance of the judgments of this Court.

Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall took no part in the consideration or decision of these applications.


text:
    No. 2242,
    Mise.
    Austin v. United States District Court for the Middle District of Florida et al.
   Application for stay order or writ of injunction presented to Mr. Justice Black, and by him referred to the Court, granted.

Mr. Justice Douglas took no part in the consideration or decision of this application.


text:
    No. 730.
    Hill v. California.
   Sup. Ct. Cal. [Certiorari granted, 396 U. S. 818.] Motion of Keith C. Monroe for leave to participate in oral argument as amicus curiae on behalf of the Orange County Criminal Courts Bar Assn, denied.


text:
    No. 4.
    Younger, District Attorney of Los Angeles County v. Harris et al. Boyle, Judge, et al. v. Landry et al. Samuels et al. v. Mackell, District Attorney of Queens County, et al. Fernandez v. Mackell, District Attorney of Queens County, et al. Boddie et al. v. Connecticut et al. Sanks et al. v. Georgia et al. Dyson et al. v. Stein. Byrne, District Attorney of Suffolk County, et al. v. Karalexis et al.
    No. 6.
    No. 11.
    No. 20.
    No. 265.
    No. 266.
    No. 565.
    No. 1149.
   Appeal from D. C. C. D. Cal. [Probable jurisdiction noted, 393 U. S. 1013; restored to calendar, 395 U. S. 955];

Appeal from D. C. N. D. Ill. [Probable jurisdiction noted, 393 U. S. 974; restored to calendar, 395 U. S. 955];

Appeal from D. C. S. D. N. Y. [Probable jurisdiction noted, 393 U. S. 975; restored to calendar, 395 U. S. 957];

Appeal from D. C. S. D. N. Y. [Probable jurisdiction noted, 393 U. S. 975; restored to calendar, 395 U. S. 957];

Appeal from D. C. Conn. [Probable jurisdiction noted, 395 U. S. 974];

Appeal from Sup. Ct. Ga. [Probable jurisdiction noted, 395 U. S. 974];

Appeal from D. C. N. D. Tex. [Probable jurisdiction noted sub nom. Batchelor v. Stein, 396 U. S. 954]; and

Appeal from D. C. Mass. [Probable jurisdiction noted, 397 U. S. 985.] Cases restored to calendar for reargument.


text:
    No. 2130,
    Mise.
    Hardie v. Neville, U. S. District Judge.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 2217,
    Mise.
    McClendon v. Smith, Warden.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 1198.
    Whitcomb, Governor of Indiana v. Chavis et al.
   Appeal from D. C. S. D. Ind. [Probable jurisdiction noted, 397 U. S. 984.] Motion of ACLU Foundation, Inc., et al. for leave to file a brief as amici curiae granted.


text:
    No. 1155.
    United States v. Vuitch.
   Appeal from D. C. D. C. [Probable jurisdiction postponed, 397 U. S. 1061.] In addition to the issues presented on the merits of this case, the parties are requested to brief and argue the following three questions:

1. Does this Court have jurisdiction under 18 U. S. C. § 3731 to entertain a direct appeal from a decision of the United States District Court for the District of Columbia dismissing an indictment on the ground of the invalidity of the statute on which the indictment is founded, where the statute, although an act of Congress, applies only in the District of Columbia?

2. Could the District Court’s decision in this case have been appealed to the Court of Appeals for the District of Columbia Circuit pursuant to D. C. Code § 23-105?

3. If the decision could have been appealed to the District of Columbia Circuit, should this Court, as a matter of sound judicial administration, abstain from accepting jurisdiction pursuant to 18 U. S. C. § 3731 because the case involves the validity of a statute the application of which is confined to the District of Columbia?


text:
    No. 1189.
    Lemon et al. v. Kurtzman, Superintendent of Public Instruction of Pennsylvania, et al.
   Appeal from D. C. E. D. Pa. [Probable jurisdiction noted, 397 U. S. 1034.] Motion of Americans United for Separation of Church and State for leave to participate in oral argument as amicus curiae denied.

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


text:
    No. 21.
    Dutton, Warden v. Evans. McGautha v. California. Crampton v. Ohio.
    No. 1632.
    No. 1633.
   Appeal from C. A. 5th Cir. [Probable jurisdiction noted, 393 U. S. 1076; restored to calendar for reargument, 397 U. S. 1060];

Sup. Ct. Cal. [Certiorari granted, 398 U. S. 936]; and

Sup. Ct. Ohio. [Certiorari granted, 398 U. S. 936.] The Solicitor General is invited to file a brief in these cases expressing the views of the United States and to participate in the oral argument. Motion of petitioner for appointment of counsel in. No. 1633 granted. It is ordered that John J. Callahan, Esquire, of Toledo, Ohio, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case.


text:
    No. 837.
    Perez et al. v. Ledesma et al.
   Appeal from D. C. E. D. La. Further consideration of question of jurisdiction in this case postponed to hearing of case on the merits. Case set to be argued with No. 4, Younger v. Harris, No. 6, Boyle v. Landry, No. 11, Samuels v. Mackell, No. 20, Fernandez v. Mackell, No. 565, Dyson v. Stein, and No. 1149, Byrne v. Karalexis. [Restored to calendar for reargument, supra.] In addition to questions presented in jurisdictional statement, parties requested to brief and argue the following questions:

(1) Was it an appropriate exercise of discretion for the three-judge court to grant the relief in paragraphs 1 and 2 of the judgment of August 14, 1969, in view of the pendency of the state prosecution charging violation of Louisiana Revised Statutes § 14:106?

(2) Was it an appropriate exercise of discretion for the three-judge court in paragraph 4 of said judgment to declare the St. Bernard Parish Ordinance No. 21-60 unconstitutional ?


text:
    No. 1658.
    Shaffer v. Valtierra et al.
   Appeal from D. C. N. D. Cal. Probable jurisdiction noted and case set for oral argument with No. 1557 [probable jurisdiction noted, 398 U. S. 949], Mr. Justice Douglas took no part in the consideration or decision of this matter.


text:
    No. 2300,
    Mise.
    McKeiver et al. v. Pennsylvania.
   Appeal from Sup. Ct. Pa. Motion of appellants for leave to proceed in forma pauperis granted. Probable jurisdiction noted. Case transferred to appellate docket and set for oral argument with No. 1441 [In re Burrus, certiorari granted, 397 U. S. 1036].


text:
    No. 1170.
    Gillette v. United States.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 1873,
    Mise.
    Tate v. Short.
   Ct. Crim. App. Tex. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket.


text:
    No. 1669,
    Mise.
    Negre v. Larsen et al.
   C. A. 9th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Case transferred to appellate docket and set for oral argument immediately following No. 1170, supra.


text:
    No. 1405.
    Griggs et al. v. Duke Power Co.
   C. A. 4th Cir. Motion of United Steelworkers of America, AFL-CIO, for leave to file a brief as amicus curiae granted. Certiorari granted.

Mr. Justice Brennan took no part in the consideration or decision of this motion and petition.


text:
    No. 1713.
    Swann et al. v. Charlotte-Mecklenburg Board of Education et al.
   C. A. 4th Cir. Motion of National Education Association for leave to file a brief as amicus curiae granted. Motion of United Negro College Fund, Inc., et al. for leave to file a brief as amici curiae granted. Petition for writ of certiorari granted, provided the judgment of the Court of Appeals is left undisturbed insofar as it remands the case to the District Court for further proceedings, which further proceedings are authorized, and the District Court's judgment is reinstated and shall remain in effect pending those proceedings.. Decision on motions to expedite deferred.

Mr. Justice Black dissents from the Court's order which reinstates the District Court’s judgment. He would grant motion to expedite action in this Court and set case for hearing at earliest possible date.


text:
    No. 1318,
    Mise.
    Coolidge v. New Hampshire.
   Sup. Ct. N. H. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket.


text:
    No. 1115.
    Wisnieski v. Ohio ex rel. Kendzia et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 516.
    Messinger v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1414.
    Tilton et al. v. Cowles Publishing Co.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 1427.
    Garrett et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 1440.
    Opie v. Meacham, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 1461.
    Bergman v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 1536.
    In re Gantt.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 1551.
    Lanier v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 1552.
    Bankers Mortgage Co. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 1562.
    Longo et al. v. California.
   Ct. App. Cal., 4th App. Dist., Certiorari denied.


text:
    No. 1563.
    Coppolino v. Florida.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.


text:
    No. 1566.
    Monroe Auto Equipment Co., Hartwell Division v. National Labor Relations Board.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 1567.
    Wainwright, Corrections Director v. Baker.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 1571.
    Anderson Federation of Teachers, Local 519 v. School City of Anderson et al.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 1573.
    Metropolitan Life Insurance Co. v. Edwards et al.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 1585.
    Izzi v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1592.
    Woodson, Trustee in Bankruptcy v. Gilmer.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 1601.
    Riley et ux. v. State Farm Mutual Automobile Insurance Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 1606.
    Harsh Investment Corp. v. Danning, Receiver.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 1638.
    Coppola v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 18.
    McLaurin v. Burnley.
   C. A. 5th Cir. Cer-tiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 1619.
    Vasilj v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 1618.
    Curran et al. v. Morrissey et al.
   C. A. 2d Cir. Motion to defer consideration of petition for certiorari denied. Certiorari denied.

Mr. Justice White is of the opinion that certiorari should be granted.


text:
    No. 508.
    Hanna v. Illinois.
   Sup. Ct. Ill. Certio-rari denied.

Mr. Justice Harlan would grant the petition for certiorari, vacate the judgment below, and remand case for the reasons stated in his separate opinion in Chambers v. Maroney, ante, p. 55.


text:
    No. 683.
    Ichord et al. v. Stamler et al.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 1600.
    Marston et al. v. Ann Arbor Property Managers et al.
   C. A. 6th Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 1753.
    School Board of the City of Norfolk, Virginia, et al. v. Brewer et al.
   C. A. 4th Cir. Motion to dispense with printing petition granted. Motion to advance granted. Certiorari denied.

Mr. Justice Black is of the opinion that certiorari should be granted and the case set for oral argument at earliest possible date.


text:
    No. 13,
    Mise.
    Oliveros v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 373,
    Mise.
    Pitts v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 389,
    Mise.
    Gelhaar v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 907,
    Mise.
    Hearns v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 1304,
    Mise.
    Morgan v. California Adult Authority.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 1545,
    Mise.
    Gutierrez v. California.
   App. Dept., Super. Ct. Cal., County of Ventura. Certiorari denied.


text:
    No. 1567,
    Mise.
    Hock v. New Jersey.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 1572,
    Mise.
    Stack v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 1592,
    Mise.
    Wilson v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 1693,
    Mise.
    Baker v. Brierley, Correctional Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 1829,
    Mise.
    Stout v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 1955,
    Mise.
    Bell v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 1971,
    Mise.
    Caldera et al. v. Mitchell, Attorney General, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 1981,
    Mise.
    Szijarto v. Nelson, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2010,
    Mise.
    Richburg v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 2015,
    Mise.
    Johnson v. Beto, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 2016,
    Mise.
    Cox v. Wingo.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 2020,
    Mise.
    Cragg v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 2017,
    Mise.
    Walker v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 2021,
    Mise.
    Clayton v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 2029,
    Mise.
    Jackson v. Iowa.
   Sup. Ct. Iowa. Certiorari denied.


text:
    No. 2030,
    Mise.
    Adams v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 2040,
    Mise.
    McGettrick v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 2041,
    Mise.
    Hollom v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2042,
    Mise.
    O’Fields v. Rader, Institutions Director, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 2043,
    Mise.
    Lorenzana v. Delgado, Warden.
   Sup. Ct. P. R. Certiorari denied.


text:
    No. 2049,
    Mise.
    Wansley v. Virginia.
   Sup. Ct. App. Va. Certiorari denied.


text:
    No. 2066,
    Mise.
    Taylor v. Superior Court, County of Riverside.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 2072,
    Mise.
    Williams v. Follette, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 2079,
    Mise.
    Sharpe v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 2080,
    Mise.
    Cully v. Rundle, Correctional Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 2090,
    Mise.
    Kruse v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 2092,
    Mise.
    Headley et al. v. Mancusi, Warden.
   C. A. 2d Cir, Certiorari denied.


text:
    No. 2095,
    Mise.
    Bass v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 2099,
    Mise.
    Horton v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 2102,
    Mise.
    Mapys v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 2104,
    Mise.
    Moffett v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2111,
    Mise.
    Lopez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2115,
    Mise,
    Hyleck v. Minnesota.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 2122,
    Mise.
    Clarke v. United States Board of Parole et al.
   C. A., D. C. Cir. Certiorari denied.


text:
    No. 2123,
    Mise.
    Yant v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 2127,
    Mise.
    Groves v. Pate, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 2133,
    Mise.
    Lott v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 2129,
    Mise.
    Brown v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 2131,
    Mise.
    Manuel-Baca v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 2141,
    Mise.
    Wooten v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 2146,
    Mise.
    Cohen v. Wainwright, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 2157,
    Mise.
    Briones v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 2163,
    Mise.
    Hynes, aka Burns v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 2175,
    Mise.
    Nelson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 212,
    Mise.
    Gilliam v. Resor, Secretary of the Army.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas would grant the petition, vacate the judgment, and remand the case for reconsideration in light of Welsh v. United States, 398 U. S. 333 (1970).


text:
    No. 908,
    Mise.
    Morgan v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.

Mr. Justice Marshall would grant certiorari and reverse the judgment below for the reasons stated in his separate opinion in Williams v. Florida, ante, p. 116.


text:
    No. 105,
    Mise.
    Jackson v. Georgia. Turley v. Missouri. Wetzel v. North Carolina.
    No. 219,
    Mise.
    No. 509,
    Mise.
   Sup. Ct. Ga.;

Sup. Ct. Mo.; and

C. A. 4th Cir. Motion of Emory Community Legal Services Center for leave to file a brief as amicus curiae in No. 105, Mise., granted. Petitions for writs of certiorari denied.

Mr. Justice Black and Mr. Justice Douglas, being of the view that Coleman v. Alabama, ante, p. 1, should be retroactive in all cases (see Desist v. United States, 394 U. S. 244, 255 (Douglas, J., dissenting)) would grant the petitions, vacate the judgments, and remand the cases for reconsideration in light of Coleman. Mr. Justice Harlan would grant the petitions for writs of certiorari, vacate judgments of the courts below, and remand cases to those courts for further consideration in light of his concurring opinion in Coleman v. Alabama, ante, p. 19. See Desist v. United States, 394 U. S. 244, 256 (1969) (Harlan, J., dissenting).

Reported below: No. 105, Misc., 225 Ga. 39, 165 S. E. 2d 711; and No. 219, Misc., 442 S. W. 2d 75.


text:
    No. 603,
    Mise.
    Satterfield v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 878,
    Mise.
    Gregg v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 1342,
    Mise.
    Sarabia v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 1201,
    Mise.
    Collier v. Wingo, Warden.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Harlan would grant certiorari, vacate the judgment below, and remand for the reasons stated in his separate opinion in Chambers v. Maroney, ante, p. 55. Mr. Justice Marshall would grant certiorari, vacate the judgment, and remand for further consideration in the light of Chambers v. Maroney, ante, p. 42.


text:
    No. 1399,
    Mise.
    Carter et al. v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari on the question whether a witness before a grand jury has standing in light of Blair v. United States, 250 U. S. 273, to challenge the constitutionality of a statute concerning violations of which he is compelled to testify.


text:
    No. 1668,
    Mise.
    Ferguson et al. v. New York.
   Ct. App. N. Y. Certiorari denied.

Mr. Justice Douglas and Mr. Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 1964,
    Mise.
    Satery v. Texas.
   Ct. Crim. App. Tex. Motion to dissolve stay granted. Certiorari denied.


text:
    No. 2113,
    Mise.
    Newman v. Sigler, Warden.
   C. A. 8th Cir. Certiorari denied.

Mr. Justice Blackmun took no part in the consideration or decision of this petition.


text:
    No. 2114,
    Mise.
    Whitney v. United States.
   C. A. 8th Cir. Certiorari denied.,

Mr. Justice Blackmun took no part in the consideration or decision of this petition.


author: Mr. Chief Justice Burger,

text:
    No. 1978,
    Mise.
    Russell v. Catherwood, Industrial Commissioner of New York.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.

Mr. Chief Justice Burger,

with whom Mr. Justice Douglas joins,

dissenting.

The Appellate Division of the New York Supreme Court has interpreted § 593 of the New York Labor Law as requiring an applicant for unemployment benefits, as a condition to receiving those benefits, to stand ready to accept suitable employment when tendered, even though acceptance of the employment would compel him to join a union as to which he has “conscientious objections.” The decision of the New York courts places a burden on the petitioner’s freedom of association — a freedom we have placed on a high, if indeed not a “preferred” plane. See NAACP v. Alabama, 357 U. S. 449 (1958). Consequently, this case may well present important issues that ought to be decided, particularly if the result of the New York holding is that a worker must decide between a deeply felt belief that falls in the First Amendment area, and crucial unemployment benefits.

The Industrial Commissioner, if we are to place any weight on his response here, has shown that he considers the petitioner bound to accept a job tender even when his acceptance requires union membership that is repugnant to him. It may be that on plenary consideration we would conclude that the Constitution requires the respondent to provide employment that does not conflict with the worker’s freedom of association, as might be indicated under Sherbert v. Verner, 374 U. S. 398 (1963). In that case we held unemployment benefits could not be denied because of refusal to accept employment that required a member of the Seventh Day Adventists to work on her Sabbath. See also NAACP v. Button, 371 U. S. 415, 438 (1963).

I would grant the writ because I believe that the petitioner has presented a substantial question and possibly one of important constitutional dimensions that warrants plenary — not summary — consideration.


text:
    No. 2384,
    Mise.
    McLucas et al. v. Palmer, Judge.
   C. A. 2d Cir. Motion to expedite consideration of petition granted. Certiorari denied.


text:
    No. 776,
    October Term, 1968.
    Utah Public Service Commission v. El Paso Natural Gas Co. et al.,
   395 U. S. 464. All petitions for rehearing, motions, and other petitions filed in this case denied.

Mr. Justice Harlan and Mr. Justice Stewart would call for responses to petitions for rehearing and to other motions and petitions referred to in this Court’s order. Mr. Justice Brennan, Mr. Justice White, and Mr. Justice Marshall took no part in the consideration or decision of this order.


text:
    No. 1409.
    Bell v. Government of the Virgin Islands, Dean Foods Co., Inc. v. National Labor Relations Board, Chandler, U. S. District Judge v. Judicial Council of the Tenth Circuit, Evans v. United States, Peterson v. Missouri, Carrigan v. Erich P. Karlsson Builders, Inc.,
    No. 1442.
    No. 2,
    Mise.
    No. 1665,
    Mise.
    No. 1822,
    Mise.
    No. 2037,
    Mise.
   398 U. S. 937;

398 U. S. 939;

398 U. S. 74;

397 U. S. 1058;

398 U. S. 931 ; and

398 U. S. 953. Petitions for rehearing denied.

Mr. Justice Marshall and Mr. Justice Black-mun took no part in the consideration or decision of these petitions.


text:
    No. 1345.
    Sullivan v. Choquette et al., Cushway v. State Bar of Georgia,
    No. 1804,
    Mise.
   398 U. S. 904; and

398 U. S. 910. Petitions for rehearing denied.

Mr. Justice Blackmun took no part in the consideration or decision of these petitions.


text:
    No. 1488.
    Marcello v. United States,
   398 U. S. 959. Petition for rehearing denied.

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


text:
    No. 1622,
    Mise.
    Oliver v. Rundle, Correctional Superintendent,
   397 U. S. 1050. Motion for leave to file petition for rehearing denied.

Mr. Justice Black-mun took no part in the consideration or decision of this motion.


author: Ellsworth, Chief Justice.

text:
    AUGUST TERM, 1799.
    Present, Ellsworth, Chief Justice, and Paterson, Chase and Washington, Justices.
    State of New York v. State of Connecticut et al.

      Injunction. — Equity process.

    An injunction will neither be granted by the court, nor a single judge, without reasonable notice to the adverse party, or his attorney: what is reasonable notice.
    An injunction will not be granted, to stay proceedings in common-law suits, at the instance of a state, not a party thereto, nor interested in their decision.
    A subpoena in equity must be served sixty days before the return-day.
    Bill in Equity. “The State of New York, one of the United States of America, by Josiah Ogden Hoffman, the attorney-general of the said state,” filed this bill in consequence of the rejection of the motion to grant writs of certiorari, for the removal of Fowler v. Lindsey and Fowler v. Miller (3 Dall. 411),  from the circuit court of Connecticut into the supreme court The plaintiffs in those suits were made defendants to the present hill; and the complainant, after setting forth the title of New York to the lands in question, prayed (inter alia) for an injunction against them. The notices to the defendants, that the injunction would be moved for, were delivered on the 25th and 26th of July; hut on the 6th of August,
      Ingersoll, who appeared for the individuals, though not for the state, referred to the act of congress, which provides, that “ no writ of injunction shall be granted, in any case, without reasonable previous notice to the adverse party or his attorney, of the time and place of moving for the same. (1 U. S. Stat. 334-5, § 5.) And ne contended, that reasonable notice had not been given in this case.

      *Hoffman (the Attorney-General of New York) contended,
    that the notice was reasonable in relation to its present object; though it might not be sufficient for requiring the defendant to put in an answer or demurrer to the bill. The injunction prayed for is not a perpetual one, but only until answer, and further order of the court. Nor ought the section of the act of congress to be extended by construction; for a universal application of the rule would be unreasonable, and in many cases, enable the party to defeat the very purpose of an injunction. Itis questionable, indeed, whether the section at all relates to a motion, either in the supreme court or the circuit court, for an injunction ; since its only object seems to have been, to vest in a single judge the same power that the courts previously possessed, to grant the writs of. injunction and ne exeat. But at all events, if the court shall think notice of such a motion necessary, they will construe the shortest notice to be reasonable notice, for the purpose of preserving peace, and effectuating justice.

      Ingersoll, in reply.
    — With respect to the state of Connecticut, it is a fact, that since the decision on the motion for a certiorari, at the last term, there has not been a meeting of the legislature ; so that it is impossible to ascertain what course she will adopt on the occasion; and with respect to the individual plaintiffs in the circuit court, it is a matter of great importance, that a trial on their rights should not be suspended, by the interposition of a state, whose interests cannot be affected by any decision that may be given below. It is enough, however, that by the positive provisions of the act of congress, it is contemplated, that no injunction shall issue, in any case, unless satisfactory reasons are assigned; and that, therefore, reasonable notice of an application for the writ, must be given to the adverse party.

         The term commenced on the 5th of August, but a quorum of the judges did not attend until the day following; and Cushing and Iredell, Justices, were prevented by indisposition from taking their seats on the bench, during the whole term.

       In Fowler v. Lindsey, a certiorari was re- because she was not interested in the eject-fused, because the state was not a party to the mentS. record; in this case, an injunction was denied,

   The opinion of the Court was delivered by the Chief Justice.

Ellsworth, Chief Justice.

*Same Cause.

The bill in this case contained an historical account of the title of New York, to the soil and jurisdiction of the tract of land in dispute ; set forth an agreement of the 28th of November 1883, between the two states, on the subject; and prayed a discovery, relief and injunctior to stay the proceeding in the Connecticut ejectments. 3 Dali. 411. As the state had not appeared, the question of injunction was the only one now argued.

Hoffman (the Attorney-General of New York), in support of the prayer for an injunction, and the general merits of the bill, urged various points, with great force and ability. 1st. It is necessary to execa .e the special agreement between the states: it is a principle of equity, that wherever there is an agreement as to a right, whether it is a mere franchise, or a right of soil, it shall be enforced and rendered conclusive upon the parties, by the interposition of the court. The agreement admits that the tract of land belonged to New York ; and the bill states, that notwithstanding this admission, Connecticut has since undertaken to grant a part of it to the plaintiffs in the ejectments. Hence, it became necessary (or the bill would have been incomplete) to make those plaintiffs parties to the present suit. The agreement, indeed, only gives the equitable title to New York; while the plaintiffs below possess the legal title, and must, of course, recover in the ejectments. A specific performance of the agreement being decreed against Connecticut, would not be an adequate and complete remedy; and all parties in interest, however remote, must be brought before the court, or they cannot be affected by its proceedings. 2d. It will prevent a multiplicity of suits. The bill is emphatically a bill of peace ; since, considering the character of the parties to the principal controversy, without this remedy, the consequences upon the public tranquillity can hardly be conjectured. It is true, however, that the right of the state of New York cannot be affected by a decision in the circuit court; but until that right is lawfully settled, the number of suits, by individuals, must be indefinitely great; and merely to avoid a multiplicity of suits, to cut off, by one decision, various sources of strife and litigation, is a substantive ground for the exercise of a chancery jurisdiction. 1 Atk. 282; 2 Ibid. 484. 3d. It is a bill for the discovery of title, which parties in interest, as well as parties in possession, may certainly maintain. 1 Ves. 249. 4th. It is a bill to settle a question *of boundary be- p tween two states. Of this question, the court can, incontestably, take L cognisance ; and it will not allow the decision of the principal matter to be interrupted or prevented by collateral considerations; particularly, when the decision of the principal, will settle all the inferior matters in dispute. In Penn v. Baltimore, 1 Ves. 454, the bill was sustained upon similar principles; and the jurisdiction there assumed, upon principle, in a case of contested provincial boundary, may surely be exercised here under the additional sanction of the constitution. 2 Dall. 442, 415, 419; 3 Ibid. 1, 412. But it is not simply a bill to settle a question of boundary between two states ; it involves the right of soil, which, in relation to a great part of New York, results from the right of jurisdiction ; so that, deciding the latter, is virtually a decision of the former. In this respect, New York is, perhaps, distinguished from her sister states, whose claims of territory are, generally, founded upon positive grant; while her claim of soil is a mere incident of the sovereignty and jurisdiction with which the revolution invested her.

Ingersoll, against granting the prayer for an injunction. — In the suits below, the state of New York is not a party, and cannot be affected oy their decision ; while the defendants below are not parties to the present bill, though they are the persons most likely to be injured by those suits. But no part of the bill states that any of the land belongs to New York ; so non constat that she is interested in the question of soil; and the question of state boundary cannot be decided, as between the states, in the circuit court, There is no instance of the interposition of a court of ““equity,'by way of injunction, unless upon the application of a party immediately interested in the subject of the common-law suits, or there is property likely to be withdrawn. 1 Ch. Prec. 186-7 ; Gilb. Ch. 19 ; 2 Dall. 402 ; 5 Bot. Car. Cane. 439 ; Hind. Ch. 585. Besides, there is a regular course, in which the judgment of this court, independent of its equity character, may be obtained ; as, by a writ of error, on a demurrer to evidence, the construction and effect of the alleged agreement between the states might here be revised, and authoritatively declared ; and “'suits in equity cannot be sustained in any court of the United States, in any case where plain, adequate and complete remedy may be had at law.” (1 U. S. Stat. 82, § 16). Cowp. 216-6 ; 2 H. Black. 187. An eventual responsibility cannot constitute a party to the suits below. The several states should, in justice, refund the price of the confiscated estates, if those, who have now brought suits against the purchasers under their respective laws, should succeed ; and Pennsylvania was bound, in honor, to compensate General Irwine for the loss of Montour’s Island, on the failure of the title derived from her grant (3 Dall. 425) ; but surely, such considerations will not constitute parties to a judicial proceeding. As to a discovery of title, by whom and against whom is it sought ? One party to the suit does not require it from another, but a third person requires it, in a suit to which he is not a party, and the decision in which cannot affect his right, whatever it may be.

Lewis, for the complainant, in reply. — The difficulties of the case are obvious to all; and unless the present remedy is applied, the difficulties will dangerously increase. If the lands are not in Connecticut, the ejectments are coram non judies: if they are not in New York, suits there would be equally objectionable. Neither state will be satisfied, however, by the judgment of a court held in the other ; and for want of a peaceful forum to decide the controversy, an odious and vindictive litigation may be perpetuated. But this court has a constitutional jurisdiction on a question of boundary between states ; and upon such an occasion, will be eager to exercise it. The interest of New York, too, is sufficient to justify the exercise of it, upon her application. The right and possession of a sovereign state, are not to be treated like the usufructuary right, the possessio pedis, of a farmer. A sovereign state possesses what she governs. But is not New York interested, even in a pecuniary point of view, so as to claim the interposition *of this court, to which her settlers, the defendants below, cannot originally resort ? It is a fundamental principle of the law of >• nature and of nations, that eveiy government is bound to preserve peace and order, to protect individuals, to indemnify those who trust to its faith, and to prevent a dismemberment of its territory. This political and moral obligation, enforced by a regard to her public improvements, and fiscal operations, creates an interest of the highest character in the government of New York ; and such as the court will cherish with all its benevolence and authority. 21 Vin. Abr. 181, pl. 1; Ibid. 183, pl. 4, 5, 7 ; Ibid. pl. 8, 11 ; 3 Black. Com. 255-6.

The Court, after advisement, delivered their opinion, that as the state of New York was not a party to the suits below, nor interested in the decision of those suits, an injunction ought not to issue.

Injunction refused,

Same Cause.

As the state of Connecticut did not appear, Hoffman moved that she should appear on the first day of next term, or that the plaintiff be then at liberty to proceed ex parte. (3 Dali. 335.) But Lewis observed, that the rule required that a subpoena issuing in a suit in equity, should be served sixty days before the return ; which had not been done in the present ease The first motion was, thereupon, waived ; and an alias subpoena awarded. (3 Dall. 320.)

         Washington, Justice. — Does the bill state, that the plaintiff is ignorant ol the defendant’s title ?

        Hoffman. — Yes, expressly.
      Washington, Justice. — Then- you are- aware, that if the injunction should be granted, upon that ground, it must, of course, be dissolved, as soon as the discovery is obtained.

       Paterson, Justice. — Generally speaking, the proposition is true, that, as to states, jurisdiction and the right of soil go together.

         Ellsworth, Chief Justice. — If the bill contains no averment of a right of soil in New York, I think, it must be defective, and lays no foundation for an injunction. To have the benefit of the agreement between the states, the defendants below (who are the settlers of New York) must apply to a court of equity as well as the state herself ; but in no case can a specific performance be decreed, unless there is a substantial right of soil, not a mere political jurisdiction, to be protected and enforced. Besides, is not the bill, likewise, defective for want of making the defendants below parties to it ?
      Chase, Justice. — The validity of the grant of either state must depend upon the question of boundary; for neither New York nor Connecticut could grant land, which it did not own. Hence, I think, the question of boundary must necessarily arise in the suits below.
      Paterson, Justice. — On the question just proposed by the chief justice, it may be remarked, that some difficulty would occur in sustaining a bill in this court, at the suit of the defendants below. But it does not appear to me, that any of the cases in the books apply to the present case. What does the bill present ? A case of disputed boundaries between two states; and the question of soil, on their conflicting grants, must be decided by the question of jurisdiction. The state of Connecticut has granted out the Gore: the state of New York has also granted out the Gore. The grantees of Connecticut have brought suits in Connecticut, against the grantees of New York, and will obtain possession of the land. If the grantees of New York are thus evicted, .hey will brings uits in New York, and, on their possession. But where will this feud and litigation end ? It is difficult and painful to conjecture, unless this court can, under the constitution, lay hold of the case, to decide the question of boundary, which will'be a decision of all the appendages and consequences.

       Paterson, Justice. — The rule was so before, and is so, independent of the pro vision in the act of congress.

        Hoffman. — In every grant by New York, there is a reservation of gold and silver mines, and of five acres per cent, for roads. The bill might, besides, be amended, by averring the state to be interested in a residuum of the land, if that would be sufficient to sustain the prayer for an injunction.
      Washington, Justice. — The amendment would not satisfy me; for my opinion is founded upon the fact, that New York is not interested in the suits below.
      Chase, Justice. — It is a mere bill to settle boundaries; and we must take it as we find it, not as it might be made.
      Ellsworth, Chief Justice. — If there had been a quorum of judges, withort my attendance, I should have declined sitting in this cause. As it is, I am glad, that the opinion of my brethren, dispenses with the necessity of my making a part in the decision.


text:
    Hazlehurst et al. v. United States.

      Practice. — Nonpros.
   In error from the Circuit Court for the district of South Carolina. A rule had been obtained by Lee, the Attorney-General, at the opening of the court, that the plaintiffs appear and prosecute their writ of error within the term, or suffer a nonpros.: but it was found, that errors had been assigned in the court below, and *a joinder in error entered here. The rule was, therefore, changed to the following : that unless the plaintiffs in.error appear and argue the errors to-morrow, a non-pros, be entered.” The plaintiffs not appearing, the writ of error was non-prossed, according to the rule. 7]