text:
    ABERDEEN & ROCKFISH RAILROAD CO. et al. v. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (SCRAP) et al.
    No. A-72.
    Decided July 19, 1972

    See: 346 F. Supp. 189.

      Together with No. A-73, Interstate Commerce Commission v. Students Challenging Regulatory Agency Procedures (SCRAP) et al., also on application for stay.

   Mr. Chief Justice Burger, Circuit Justice.

These applications request me, as Circuit Justice for the District of Columbia Circuit, to stay a preliminary injunction entered by a three-judge United States District Court for the District of Columbia. The applicants are the Interstate Commerce Commission and a long list of railroad companies composing most of the rail transport in the Nation. Opposing the applications are the plaintiffs below, Students Challenging Regulatory Agency Procedures, who describe themselves as “SCRAP,” and a coalition of organizations dedicated to the protection of environmental resources. The applicants say that they intend to seek prompt review in this Court on the merits of the preliminary injunction entered below.

(1)

The Interstate Commerce Act, 49 U. S. C. § 1 et seq., permits increases in railroad freight rates to become effective without prior approval of the Interstate Commerce Commission. A carrier may file a proposed tariff and, after 30 days unless the Commission shortens the period, the new rate becomes effective as a carrier-made rate. 49 U. S. C. § 6 (3). The Commission may, however, choose to suspend the effectiveness of newly filed rates for as much as seven months, in order to investigate the lawfulness of the rates. 49 U. S. C. § 15 (7). At the end of seven months, the carrier-proposed rates go into effect by operation of law unless the Commission has completed its investigation and affirmatively disapproved the new rates. Ibid. Prior decisions of this Court confirm the Commission’s broad discretion in the exercise of its power of suspension; judicial review of suspension action or inaction is most severely limited, if not foreclosed. Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 (1963); Board of Railroad Comm’rs v. Great Northern R. Co., 281 U. S. 412, 429 (1930).

Against this legal background and prodded by an increasingly precarious financial condition, the railroads, on December 13, 1971, asked the Commission for leave to file on short 'notice a 2.5% surcharge on nearly all freight rates. The railroads asked that the surcharge be effective as of January 1, 1972. The surcharge was conceived as an interim emergency means of increasing railroad revenues by some $246 million per year, a sum the railroads describe as slightly less than one-sixth of the increased expenses incurred annually since the last general ratemaking proceedings. Selective increases on a more permanent basis would follow.

By order dated December 21, 1971, the Commision denied the railroads’ request to make the 2.5% surcharge effective as of January 1, 1972. The Commission stated that it was aware of the carriers’ need for additional revenues, but concluded that publication of the interim surcharge on short notice “would preclude the public from effective participation” in proceedings to evaluate the surcharge. 340 I. C. C. 358, 361. The Commission did, however, rule that the railroads might refile their proposed surcharge on January 5, 1972, to be effective no earlier than February 5, 1972.

On January 5, 1972, the railroads filed tariffs to put the 2.5% surcharge into effect on February 5. SCRAP and other environmental groups asked the Commission to suspend the surcharge for the statutory seven-month period. They opposed the across-the-board surcharge on the ground that the present railroad rate structure discourages the movement of “recyclable” goods in commerce and that every across-the-board increase would further increase disincentives to recycling. The environmental groups contended that added disincentives to recycling would result in the increased degradation of the natural environment by discarded, unrecycled goods and in the increased exploitation of scarce natural resources. At a minimum, SCRAP objected to the Commission’s failure to issue an “impact statement” evaluating the effect of the 2.5% surcharge on the shipment and use of recyclable materials. SCRAP contended that such a statement was required by the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. § 4321 et seg. Section 102 (2) (C) of NEPA, 83 Stat. 853, requires an impact statement “in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. . . .” 42 U. S. C. §4332 (2)(C).

The railroads took the position that interim application of the across-the-board surcharge would not “significantly affect the quality of the human environment” within the meaning of NEPA. The railroads pointed out that the 2.5% surcharge would apply equally to all products; that past experience indicated little likelihood of reduced shipments of recyclable materials as a result of the across-the-board rate revision; that the increase was small relative to the normal increase approved in general freight rate revision cases; and that the increase would be short-lived.

By order dated February 1, 1972, the Commission announced that it would not suspend the 2.5% surcharge. It would, in effect, allow the surcharge to go into effect on February 5 and terminate on June 5, 1972. The order specifically stated the Commission’s view that the surcharge would “have no significant adverse effect on the movement of traffic by railway or on the quality of the human environment within the meaning of the Environmental Policy Act of 1969.” The Commission’s order of February 1 further provided that the Commission would not resume the investigation begun by its December 21 order until the railroads asked to file the promised selective 4.1% rate increase. After that tariff was filed, on April 24, the Commission suspended the 4.1% selective increase for. the statutory seven-month period until Nqvember 30, 1972. Since the original June 5 expiration date for the surcharge had assumed that selective increases would become effective by that time, the Commission’s order suspending the 4.1% selective increase eliminated the June 5 surcharge expiration date. The railroads then modified the temporary surcharge tariffs so that the 2.5% surcharge will expire on November 30, 1972, unless the 4.1% selective increase is approved prior to that time. The Commission’s study of the proposed selective rate increase is still in progress and will include an environmental impact statement.

(2)

SCRAP filed suit on May 12, 1972, in the United States District Court for the District of Columbia, seeking, among other relief requested, a preliminary injunction to require the Commission to prevent the railroads from further collecting the 2.5% surcharge. Other environmental groups and the railroads were allowed to intervene as a matter of right. The primary thrust of SCRAP’S suit was that the Commission’s orders, permitting and then extending the 2.5% surcharge, constituted “major Federal action significantly affecting the quality of the human environment.” The plaintiffs argued that the Commission’s action was unlawful because the Commission had not issued an environmental impact statement as required by NEPA. On July 10, 1972, the District Court issued a preliminary injunction enjoining the railroads from collecting the 2.5% surcharge on shipments originating after July 15, 1972, “insofar as that surcharge relates to goods being transported for purposes of recycling, pending further order of this court.” In its opinion, the District Court rejected the Government’s contention that SCRAP and its fellow plaintiffs lacked standing under this Court’s decision in Sierra Club v. Morton, 405 U. S. 727 (1972). The court’s opinion noted that the SCRAP plaintiffs had alleged “that its members use the forests, streams, mountains, and other resources in the .Washington [D. C.] area for camping, hiking, fishing and sightseeing, and that this use is disturbed by the adverse environmental impact caused by nonuse of recyclable goods.” 346 P. Supp. 189, 195 (1972). This allegation, said the District Court, removed this case from the ambit of Sierra Club, “where the Sierra Club failed to allege ‘that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents.’ ” 405 U. S., at 735.

Having thus dealt with our decision in Sierra Club, the District Court focused on Arrow Transportation, supra, and related cases drastically curtailing the jurisdiction of the federal courts to review the suspension power of the Interstate Commerce Commission. “The thrust of the doctrine,” reasoned the District Court, “seems to be that judicial review is available only when the rates in question are Commission-made rather than carrier-made.” 346 F. Supp., at 196. The District Court noted that the present case was not one “where the Commission merely stands silently by and allows carrier-made rates to take effect without suspension.” Ibid. The Commission had found the surcharge rates just and reasonable, and it had authored a detailed set of conditions on approval of the rates without suspension. The District Court concluded that “[a] suspension decision which effectively blackmails the carriers into submitting agency-authored rates is functionally indistinguishable from an agency order setting those rates .... [S]uch orders are, of course, judicially reviewable.” Id.., at 197.

Yet the District Court found it unnecessary to decide the degree of Commission involvement in effectuating the 2.5% surcharge. The court held that “NEPA implicitly confers authority on the federal courts to enjoin any federal action taken in violation of NEPA’s procedural requirements, even if jurisdiction to review this action is otherwise lacking.” Ibid. The federal courts would have jurisdiction to review, and to enjoin, “even a mere failure to suspend rates which are wholly carrier-made so long as the review is confined to a determination as to whether the procedural requisites of NEPA have been followed.” Id., at 197 n. 11. Recognition of this jurisdiction would not undermine the Arrow decision, because “judicial insistence on compliance with the non-discretionary procedural requirements of NEPA in no way interferes with the Commission’s substantive discretion,” id., at 198, to suspend rates pending investigation and final action.

Turning to the merits, the court held that the Commission’s decision not to suspend was a “major federal action” within the meaning of NEPA. An impact statement would be required whenever an action “arguably will have an adverse environmental impact.” Id., at 201. (Emphasis in original.) The Commission could not escape preparation of a statement by “so transparent a ruse” as its “single sentence” affirmation that the 2.5% surcharge would have no significant adverse environmental effect. This finding is “no more than glorified boilerplate,” id., at 201 n. 17, and the Commission has failed to prove its truth.

Finally, the District Court concluded that the balance of equities in this case tipped in favor of preliminary relief. Any damage to the environment would likely be irreparable. But “the damage done the railroads by granting the injunction, while clearly nonfrivolous, is not overwhelming.” Id., at 201-202. Without opinion, the District Court declined to stay its preliminary injunction pending appeal.

(3)

It is likely that the questions to be presented by this appeal “are of such significance and difficulty that there is a substantial prospect that they will command four votes for review” when the full Court reconvenes for the October 1972 Term. Organized Village of Kake v. Egan, 80 S. Ct. 33, 35, 4 L. Ed. 2d 34, 37 (1959) (Brennan, J., in chambers). The decision below may present a serious question of standing to sue for the protection of environmental interests. Sierra Club. v. Morton, supra. The decision may be read as undermining our Arrow decision and in that respect may conflict with the reasoning of the Second Circuit in Port of New York Authority v. United States, 451 F. 2d 783 (CA2 1971). Most important, the decision may have the practical effect of requiring the Commission to file an impact statement whenever it exercises its statutory suspension powers. This requirement is significant because it would likely apply to each of the cluster of federal agencies presently exercising suspension powers comparable to that of the Interstate Commerce Commission.

For these reasons, I would not be prepared to conclude that the Court would dispose summarily of the dispute underlying these stay applications. I must, therefore, consider whether allowing or staying the preliminary injunction is most likely to insure fair treatment for the interests of the parties and the public until the full Court acts. On the allegations of the parties some injury will ■ occur whichever course is taken. Those opposing the stay naturally point to the large weight to be given to the District Court’s evaluation or “balancing” of the equities.

The harm to the railroads, and to the overall public interest in maintaining an efficient transportation network, is immediate and direct. Badly needed revenues will be lost at once, and there is little likelihood that they can be recouped. The railroads originally estimated the loss at $500,000 per month, but they have revised that estimate upwards by several times since advised by SCRAP that it attaches an unexpectedly broad interpretation to the District Court’s injunction. Unlike the District Court, I find it difficult to dismiss this certain loss of at least one and perhaps several millions of dollars simply because it is “not overwhelming” relative to the total revenues to be derived from the surcharge. Nor is it sufficient to discount the lost revenues because they might have to be disgorged if found unreasonable by the Commission at a later date. The chances of such a ruling are, again, only speculative. As a general premise for evaluation, the possibility of rebate suggests equally that shippers would not regard the surcharge as a significant additional cost.

On the other hand, the District Court was convinced that harm to the environment might result from allowing the railroads to collect the 2.5% surcharge on recyclable goods pending disposition of their appeal in this Court. The District Court concluded that any such harm would likely be irreparable, since, as the court explained, “once raw materials are unnecessarily extracted from the ground and used, they cannot be returned from whence they came.” 346 F. Supp., at 201. This eventuality is premised on the following projected chain of events:

(a) The railroads will collect the 2.5 percent surcharge on recyclable, as well as all other materials.
(b) Because recyclable materials are already discriminated against in freight rates, the surcharge further increases rate disparities and, in any event, raises the absolute cost of transporting recyclable materials, often a high proportion of their total cost.
(c) This increase in cost will result in decreased demand for recyclable materials.
(d) This decrease in demand will be counterbalanced by an increased demand for new or un-recycled materials.
(e) This increased demand for new materials will result in extraction of natural resources not otherwise planned.

There is evidence in the record arguably supporting this forecast of the consequences of increasing freight rates on recyclable goods in common with others.

Our society and its governmental instrumentalities, having been less than alert to the needs of our environment for generations, have now taken protective steps. These developments, however praiseworthy, should not lead courts to exercise equitable powers loosely or casually whenever a claim of “environmental damage” is asserted. The world must go on and new environmental legislation must be carefully meshed with more traditional patterns of federal regulation. The decisional process for judges is one of balancing and it is often a most difficult task.

A District Court of three judges has considered this application for a stay pending appeal and has concluded that the stay should be denied. The criteria for granting a stay of the judgment of such a district court are stringent, at least when the necessity for a stay turns upon a refined factual evaluation of its effect. “An order of a court of three judges denying an interlocutory injunction will not be disturbed on appeal unless plainly the result of an improvident exercise of judicial discretion.” United Fuel Gas Co. v. Public Service Comm’n, 278 U. S. 322, 326 (1929); Railway Express Agency v. United States, 82 S. Ct. 466, 7 L. Ed. 2d 432 (1962) (Harlan, J., in chambers). I cannot say the District Court’s action can be equated with an abuse of discretion because it decided that there was danger to the environment outweighing the loss of income and consequent financial threat to the railroads. Notwithstanding my doubts of the correctness of the action of the three-judge District Court, as Circuit Justice, acting alone, I incline toward deferring to their collective evaluation and balancing of the equities.

Reluctantly, I conclude that the applications for stay pending appeal should be denied.

       SCRAP’S compláint alleged that it is “an unincorporated association formed by five law students from the [George Washington University] National Law Center ... in September 1971” whose “primary purpose is to enhance the quality of the human environment for its members, and for all citizens . . . .”

       At the time of filing these stay applications, there was disagreement between the parties over the meaning of the term “recyclable,” as it pertains to this lawsuit. The railroads apparently understood the term “in the sense of processing of goods to obtain either a product of the same kind or a previous state of the product.” Supplemental Memo of Applicants, filed July 14, 1972, p. 2. SCRAP’s list of recyclable products, the railroads say, includes products that are “not recyclable in any sense that the railroads understand that term, but merely involve the familiar circumstances by which one usable product is derived from another.” Id., at 3. See infra, at 1216.

       Section 102 of NEPA provides, in pertinent part:
      “The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall—
      “(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
      “(i) the environmental impact of the proposed action,
      “(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      “(iii) alternatives to the proposed action,
      “(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      “(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.”
      “Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes . . .

       A three-judge court was convened to hear the case. See 28 U. S. C. §§ 2325, 2284.

         E. g., Alabama Power Co. v. United States, 316 F. Supp. 337 (DC 1969), and Atlantic City Electric Co. v. United States, 306 F. Supp. 338 (SDNY 1969), both aff’d by an equally divided court, 400 U. S. 73 (1970); Electronics Industries Assn. v. United States, 310 F. Supp. 1286 (DC 1970), aff’d, 401 U. S. 967 (1971); Florida Citrus Comm’n v. United States, 144 F. Supp. 517 (ND Fla. 1956), aff’d, 352 U. S. 1021 (1957); Algoma Coal & Coke Co. v. United States, 11 F. Supp. 487 (ED Va. 1935).

       Among suspension provisions enacted by Congress since 49 U. S. C. § 15 (7) are 49 U. S. C. §§ 316 (g), 318 (c) (Motor Carrier Act, 1935); 49 U. S. C. §§ 907 (g), (i) (Water Carriers Act); 49 U. S. C. § 1006 (e) (Freight Forwarders Act); 47 U. S. C. § 204 (Federal Communications Act of 1934); 16 U. S. C. § 824d (e) (Federal Power Act); 15 U. S. C. § 717c (e) (Natural Gas Act); and 49 U. S. C. § 1482 (g) (Federal Aviation Act of 1958). See Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, 666 n. 13 (1963).

       In evaluating the possibility of irreparable harm to the environment, the District Court did not mention the danger of increased disposal of recyclable materials. The District Court had adverted to this problem earlier in its opinion. Since the lower court did not premise its action on this possibility, it apparently concluded that any short-range harm to the environment caused by increased disposal would not be irreparable.


source: Caselaw Access Project

author: Mr. Justice Douglas, Circuit Justice.

license: Public Domain

text:
    RUSSO et al. v. BYRNE, U. S. DISTRICT JUDGE
    No. A-150.
    Decided July 29, 1972
   Mr. Justice Douglas, Circuit Justice.

The question raised by this application for stay presents a profoundly important constitutional question not squarely decided by the Supreme Court but ruled upon by the District Court and by the Court of Appeals in a way that is seemingly out of harmony with the import of our decisions.

The electronic surveillance used by the Government was represented to me on oral argument as being in the “foreign” field. No warrant, as required by the Fourth Amendment and by our decisions, was obtained, only the authorization by the Attorney General. Such authorization was held insufficient in our recent decision in United States v. United States District Court, 407 U. S. 297 (1972). It is argued that that case involved “domestic” surveillance, but the Fourth Amendment and our prior decisions, to date at least, draw no distinction between “foreign” and “domestic” surveillance. Whether such a distinction will eventually be made is for the Court, not for me, to make. Moreover, in light of the casual way in which “foreign” as distinguished from “domestic” surveillance was used on oral argument it may be that we are dealing only with a question of semantics. Defendants’ telephonic communications, it seems, were not tapped, nor were those of their attorney or consultants. But a conversation or several conversations of counsel for defendants were intercepted.

The District Court in an in camera proceeding ruled that those conversations were not relevant to any issues in the present trial. The Court of Appeals, as I read its opinion, ruled that the defendants — i. e., applicants who make this application — have no “standing” to raise the question. If, however, the interceptions were “relevant” to the trial, it would seem they would have “standing.”

Therefore it would seem to follow from the reasoning of the Court of Appeals that whether or not there was “standing” would turn on the merits. The case, viewed in that posture, would seem to require an adversary hearing on the issue of relevancy. We held, in Alderman v. United States, 394 U. S. 165, 182 (1969), that the issue of relevancy should not be resolved in camera, but in an adversary proceeding. Alderman would be greatly undercut if the issue of relevancy could be resolved in camera, and if the trial court ruled against the defendants on the merits and then determined they had no “standing” to complain.

I seriously doubt if the ruling of the Court of Appeals on “standing” accurately states the law. In modern times the “standing” of persons or parties to raise issues has been greatly liberalized. Our Court has not squarely ruled on the precise issue here involved. But it did rule in Flast v. Cohen, 392 U. S. 83, 103 (1968), that one who complains of a violation of a First Amendment right has “standing.” On oral argument Flast was distinguished from the present case on the ground that under the Fourth Amendment only those whose premises have been invaded or whose conversations have been intercepted have standing to complain of unconstitutional searches and seizures. That contention, however, does not dispose of this case.

The constitutional right earnestly pressed here is the right to counsel guaranteed by the Sixth Amendment. That guarantee obviously involves the right to keep the confidences of the client from the ear of the Government, which these days seeks to learn more and more of the affairs of men. The constitutional right of the client, of course, extends only to his case, not to the other concerns of his attorney. But unless he can be granted “standing” to determine whether his confidences have been disclosed to the powerful electronic ear of the Government, the constitutional fences protective of privacy are broken down.

My authority is to grant or deny a stay, not to determine whether the Court of Appeals is right or wrong on the merits. If the application presents frivolous questions it should be denied. If it tenders a ruling out of harmony with our prior decisions, or questions of transcending public importance, or issues which would likely induce this Court to grant certiorari, the stay should be granted.

I am exceedingly reluctant to grant a stay where the case in a federal court is barely under way. But conscientious regard for basic constitutional rights guaranteed by the Fourth and Sixth Amendments makes it my duty to do so. I, therefore, order that the trial be stayed for 30 days pending application to this Court for a writ of certiorari and thereafter stayed pending the determination of the petition.

. If the law under which we live and which controls every federal trial in the land is the Constitution and the Bill of Rights, the prosecution, as well as the accused, must submit to that law.


author: Mr. Justice Rehnquist, Circuit Justice.

text:
    REPUBLICAN STATE CENTRAL COMMITTEE OF ARIZONA et al. v. THE RIPON SOCIETY INC. et al.
    No. A-179.
    Decided August 16, 1972
    See: 343 F. Supp. 168.
   Mr. Justice Rehnquist, Circuit Justice.

I am asked to stay the effect of an injunction entered by the United States District Court for the District of Columbia, which prohibited the Republican National Party’s 1972 Convention from adopting a certain mode of allocating delegates to that party’s convention in 1976. On August 11, 1972, Mr. Justice Douglas denied a stay, and that application has been renewed to me.

Since 1948 the Republican National Party has adopted at each presidential nominating convention a formula for allocating among the States delegates to the next convention. This formula has included a “bonus” of six delegates awarded to each State that cast its electoral college votes for the Republican presidential nominee in the previous presidential election, or has elected a Republican senator, governor, or majority of its congressional delegation at any election within the previous four years. Respondents filed suit in the United States District Court for the District of Columbia, asking for a declaratory judgment that such a “bonus” system of allocating delegates was unconstitutional, and asking that the Republican National Party be enjoined from adopting such a formula at its 1972 nominating convention. The District Court, in reliance upon Georgia v. National Democratic Party, 145 U. S. App. D. C. 102, 447 F. 2d 1271 (1971), cert. denied, 404 U. S. 858 (1971), and Bode v. National Democratic Party, 146 U. S. App. D. C. 373, 452 F. 2d 1302 (1971), cert. denied, 404 U. S. 1019 (1972), held that allocation of delegates was state action, and that the complaint before it was justiciable. Agreeing with the Republican National Party that, for a system that elects Presidents by casting a State’s electoral votes in a bloc, a bonus system of delegate allocation is reasonable to encourage Republican victories within each State, the District Court nonetheless held the allocation of six delegates without regard to the size of the State or its electoral college votes, to be a denial of equal protection. It therefore entered the following injunction:

“That Defendants are hereby enjoined from adopting at the 1972 Republican National Convention a formula for apportionment of delegates to the 1976 Convention which would allocate a uniform number of bonus delegates to states qualifying for them, with no relation to the state’s electoral college votes, Republican votes cast in certain specified elections, or some combination of these factors.”

After an appeal was perfected these applicants moved the United States Court of Appeals for the District of Columbia Circuit for leave to intervene and for a stay of the District Court’s injunction. Intervention was granted, but a divided panel of the District of Columbia Circuit, on August 3, denied a stay without opinion. Respondents do not now challenge the right of the applicants, state central committees of the Republican National Party, to seek a stay from this Court. With the Republican National Convention scheduled to commence August 21, prompt action is requested on the ground that an unreviewed court injunction threatens direct intervention with the conduct of the convention, in a manner similar to that confronting this Court in O’Brien v. Brown, ante, p. 1.

As we said in O’Brien, supra, an application for a stay-calls “for a weighing of three basic factors: (a) whether irreparable injury may occur absent a stay; (b) the probability that the [District Court] was in error in holding that the merits of these controversies were appropriate for decision by federal courts; and (c) the public interests that may be affected by the operation of the [injunction]Applicants contend that to leave the injunction in effect will work irreparable injury because the Republican National Party has always allocated delegates to its next convention at the current convention, and has no machinery for amending that formula. Therefore, they say, the injunction will permanently preclude the adoption of a “bonus” formula, regardless of whether the District Court is reversed. Respondents allege that no irreparable injury will occur, because the convention can either provide amendatory procedures for use in the event that the bonus formula is not vindicated on appeal, or it can adopt a contingent delegate allocation plan, to take into account the pending federal court proceedings. But to allow the injunction to stand would have at least some impact on the deliberations and decisions of the Republican National Convention akin if not identical to that we found in O’Brien, supra:

“Absent a stay, the mandate of the Court of Appeals denies to the Democratic National Convention its traditional power to pass on the credentials of the California delegates in question. The grant of a stay, on the other hand, will not foreclose the Convention’s giving the respective litigants in both cases the relief they sought in federal courts.” I'd., at 3.

In the case at bar, of course, we deal with a delegate-allocation dispute that retains importance until 1976, rather than a credentials dispute such as was involved in O’Brien v. Brown, which would mean nothing after the close of the 1972 Democratic National Convention. If the injunction of the District Court were to compel the 1972 Republican National Convention to eschew a bonus-allocation formula which it would otherwise have chosen, this case would be moot. There would be no controversy left to review. On the other hand, to stay the injunction pending review will permit the respondents to make their case before the convention, and assuming the bonus formula is adopted, will preserve to applicants judicial review of the District Court’s order declaring the bonus formula unconstitutional. If that order should be affirmed, I have no doubt that appropriate remedies are available to insure that the Republican National Party delegate allocation is in conformity with the order, or that the party would take whatever steps are necessary to bring its allocation formula into conformity with the order. The fact that a stay here, instead of precluding any judicial review of the final action of the Republican National Convention, as could have been the result of the action taken in O’Brien, supra, preserves these issues for review in a manner conducive to careful study and consideration is itself a reason to stay the injunction which was not present in O’Brien.

A second reason for staying the effect of the District Court’s injunction is drawn from the probability of error in the result below.' The District Court did not have the benefit of this Court’s writing in O’Brien, supra, at the time it entered its order and injunction There we said:

“No case is cited to us in which any federal court has undertaken to interject itself into the deliberative processes of a national political convention; no holding of this Court up to now gives support for judicial intervention in the circumstances presented here, involving as they do, relationships of great delicacy that are essentially political in nature. Cf. Luther v. Borden, 7 How. 1 (1849). Judicial intervention in this area traditionally has been approached with great caution and restraint. See Irish v. Democratic-Farmer-Labor Party of Minnesota, 399 F. 2d 119 (CA8 1968), affirming 287 F. Supp. 794 (Minn. 1968), and cases cited; Lynch v. Torquato, 343 F. 2d 370 (CA3 1965); Smith v. State Exec. Comm. of Dem. Party of Ga., 288 F. Supp. 371 (ND Ga. 1968). Cf. Ray v. Blair, 343 U. S. 214 (1952). It has been understood since our national political parties first came into being as voluntary associations of individuals that the convention itself is the proper forum for determining intra-party disputes as to which delegates shall be seated. Thus, these cases involve claims of the power of the federal judiciary to review actions heretofore thought to lie in the control of political parties. Highly important questions are presented concerning jus-ticiability, whether the action of the Credentials Committee is state action, and if so the reach of the Due Process Clause in this unique context. Vital rights of association guaranteed by the Constitution are also involved. While the Court is unwilling to undertake final resolution of the important constitutional questions presented without full briefing and argument and adequate opportunity for deliberation, we entertain grave doubts as to the action taken by the Court of Appeals.” Id., at 4-5.

While I have authority to grant a stay in this case, 28 U. S. C. § 1651 (a), Johnson v. Stevenson, 335 U. S. 801 (1948), the fact that such relief has been successively denied by the District Court, the Court of Appeals, and Mr. Justice Douglas counsels circumspection notwithstanding the foregoing observations. See, e. g., Ex parte Stickney, 82 S. Ct. 465, 7 L. Ed. 2d 435 (1962) (Douglas, J., in chambers). Weighing these competing and frequently imponderable factors as best I can, I have concluded that this case follows so closely on the heels of O’Brien and resembles it in so many relevant particulars that the injunctive aspect of the District Court order should be stayed. Accordingly, I have this day entered an order staying that portion of the order of the District Court that enjoins the 1972 Republican National Convention from adopting this “bonus” formula for allocating delegates to the 1976 convention.


author: Mr. Justice Powell, Circuit Justice.

text:
    DRUMMOND et al. v. ACREE et al.
    No. A-250 (72-167).
    Decided September 1, 1972
    See: 458 F. 2d 486.
   Mr. Justice Powell, Circuit Justice.

This application, filed by parent-intervenors in this school desegregation case from Richmond County (Augusta), Georgia, seeks a stay of a judgment of the Court of Appeals for the Fifth Circuit. That court, on March 31, 1972, affirmed an order of the United States District Court for the Southern District of Georgia adopting a plan for the desegregation of 29 elementary schools in Augusta. Aeree v. County Board of Education of Richmond County, 458 F. 2d 486 (1972). After the Fifth Circuit’s affirmance, I denied a stay because that relief had not been requested from the appropriate Court of Appeals as ordinarily required by Rule 27 of the Supreme Court Rules. Applicants immediately sought a stay from the Fifth Circuit, which was denied. Applicants have now reapplied to me.

This reapplication is premised solely on the contention that a stay is required under § 803 of the Education Amendments of 1972. That section reads in pertinent part as follows:

“[I]n the case of any order on the part of any United States district court which requires the transfer or transportation of any student ... for the purposes of achieving a balance among students with respect to race . . . , the effectiveness of such order shall be postponed until all appeals . . . have been exhausted . . . .” Education Amendments of 1972, Pub. L. 92-318, Tit. VIII, § 803, 86 Stat. 372, 20 U. S. C. § 1653 (1970 ed., Supp. II) (emphasis added).

By those terms, the statute requires that the effectiveness of a district court order be postponed pending appeal only if the order requires the “transfer or transportation” of students “for the purposes of achieving a balance among students with respect to race.” It does not purport to block all desegregation orders which require the transportation of students. If Congress had desired to stay all such orders it could have used clear and explicit language appropriate to that result.

In § 802, which precedes § 803, Congress prohibited the use of federal funds to aid in any program for the transportation of students if the design of the program is to “overcome racial imbalance” or to “carry out a plan of racial desegregation.” Education Amendments of 1972, § 802 (a), 20 U. S. C. § 1652 (a) (1970 ed., Supp. II) (emphasis added). It is clear from the juxtaposition and the language of these two sections that Congress intended to proscribe the use of federal funds for the transportation of students under any desegregation plan but limited the stay provisions of § 803 to desegregation plans that seek to achieve racial balance.

In light of this Court’s holding in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971), it could hardly be contended that Congress was unaware of the legal significance of its “racial balance” language. In that case the school authorities argued that § 407 (a) of the Civil Rights Act of 1964, 42 U. S. C. § 2000c-6 (a), restricted the power of federal courts in prescribing a method for correcting state-imposed segregation. The Chief Justice’s interpretation of § 407 (a), which applies only to orders “seeking to achieve a racial balance,” is controlling here:

“The proviso in [§ 407 (a)] is in terms designed to foreclose any interpretation of the Act as expanding the existing powers of federal courts to enforce the Equal Protection Clause. There is no suggestion of an intention to restrict those powers or withdraw from courts their historic equitable remedial powers. The legislative history of Title IV indicates that Congress was concerned that the Act might be read as creating a right of action under the Fourteenth Amendment in the situation of so-called 'de facto segregation,’ where racial imbalance exists in the schools but with no showing that this was brought about by discriminatory action of state authorities.” 402 U. S., at 17-18 (emphasis in original).

In short, as employed in § 407 (a), the phrase “achieve a racial balance” was used in the context of eliminating “de facto segregation.” The Court went on to caution lower federal courts that, in the exercise of their broad remedial powers, their focus must be on dismantling dual school systems rather than on achieving perfect racial balance: “The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” 402 U. S., at 24. This was said not in condemnation of existing techniques but in disapproval of the wooden resort to racial quotas or racial balance. Nothing in the instant statute or in the legislative history suggests that Congress used these words in a new and broader sense. At most, Congress may have intended to postpone the effectiveness of transportation orders in “de facto” cases and in cases in which district court judges have misused their remedial powers.

The question, therefore, must be whether the lower court order in this case was for the purpose of achieving a racial balance as that phrase was used in Swann. This question was resolved in the negative by the Court of Appeals. Applicants claimed on their appeal that the District Court order called for “ ‘forced busing’ to achieve racial balance.” 458 F. 2d, at 487. The court rejected that contention, citing the holding in Swann that bus transportation is one of the permissible techniques in effecting school desegregation.

For the purpose of acting on this application, I accept the holding of the courts below that the order was entered to accomplish desegregation of a school system in accordance with the mandate of Swann and not for the purpose of achieving a racial balance. The stay application must, therefore, be denied.

It is so ordered.

       A stay was also denied by the United States District Court for the Southern District of Georgia on August 18, 1972.

       For a complete history of this litigation see the most recent opinion of the District Court. Acree v. Drummond, 336 F. Supp. 1275 (SD Ga. 1972).


text:
    TIERNEY v. UNITED STATES
    No. A-49.
    Decided September 12, 1972

       Together with No. A-80, Reilly et al. v. United States, also on application for bail.

   Mr. Justice Douglas, Circuit Justice.

These are applications for bail which raise the questions comparable to those presented in In re Beverly, A-231, in which I granted bail.

In the present cases there was electronic surveillance of a telephone which a court had approved pursuant to 18 U. S. C. § 2518. During that surveillance a conversation of applicants' attorney was intercepted.

Applicants were testifying before a grand jury, having been granted immunity under 18 U. S. C. § 6002 and § 6003. On refusing to answer certain questions propounded, they were committed for civil contempt.

The standard for bail in civil contempt proceedings is set forth in 28 U. S. C. § 1826 (b) which specifies that bail shall be granted if the issues are not frivolous and if the appeal is not taken for delay. Here the immunity granted the applicants was a so-called “use” immunity as distinguished from the “transactional” immunity which some of us thought was required when the issue was before us last Term in Kastigar v. United States, 406 U. S. 441.

It is now argued that applicants have obtained all the immunity to which they were constitutionally entitled and that there is no longer an attorney-client privilege to be protected. Hence it is argued that the Sixth Amendment right to counsel which weighed heavily with me in Russo v. Byrne, ante, p. 1219 (in which I granted a stay on July 29, 1972), is not relevant here.

I accept, of course, the Court's decision that only “use” immunity, not “transactional” immunity, is the constitutional standard under the Fifth Amendment. The fact remains, however, that the “leads” obtained from testimony given after “use” immunity has been granted can be used to indict and convict the applicants. It seems to me therefore that the attorney-client privilege does continue and indeed may be much more vital to the applicants than it would have been had “transactional” immunity been the standard adopted by the Court.

The question remains whether a search warrant issued for electronic surveillance under the Fourth Amendment can invade the domain of the Sixth Amendment and destroy the attorney-client relation. That is an exceedingly serious question on which this Court has not spoken.

Beyond those two questions there is a further one— whether on the issue of relevance an in camera proceeding is adequate or whether an adversary hearing is required. That is the question central both to the Russo- Ellsberg case, to In re Beverly, and to the present two cases.

Hence in spite of the fact that my Brother Powell has heretofore denied bail in these cases, I have reluctantly concluded that the requisite for bail in civil contempt cases, 28 U. S. C. § 1826 (b), has been satisfied here.


text:
    COMMUNIST PARTY OF INDIANA et al. v. WHITCOMB, GOVERNOR OF INDIANA, et al.
    No. A-378.
    Decided October 6, 1972
   Mr. Justice Rehnquist, Circuit Justice.

Applicants have filed a motion denominated an “Application for Stay of Order of United States District Court of the Northern District of Indiana, Hammond Division,” which order was entered following a hearing on their complaint alleging that the oath required by Indiana law in order for a party to be placed on the ballot was unconstitutional. An examination of the application, however, shows that applicants do not seek a stay of that order, but instead a partial summary reversal of the District Court order entered on October 4, 1972. While a Circuit Justice of this Court apparently has authority under Supreme Court Rule 51 to grant such relief in the form of a mandatory injunction, usage and practice suggest that this extraordinary remedy be employed only in the most unusual case. In order that it be available, the applicants’ right to relief must be indisputably clear. Applicants do not present such a case, and their application is therefore denied.


text:
    WESTERMANN et al. v. NELSON, ATTORNEY GENERAL OF ARIZONA
    No. A-412.
    Decided October 20, 1972
   Mr. Justice Douglas, Circuit Justice.

Petitioners are candidates of the American Independent Party who complain of their inability to get on the ballot in Arizona for the November 7, 1972, election.

They brought suit in the District Court but their complaint was dismissed. They desire to appeal to the Court of Appeals but were denied a preliminary injunction by a judge of that court. They now apply to me as Circuit Justice.

The complaint may have merit. But the time element is now short and the ponderous Arizona election machinery is already under way, printing the ballots. Absentee ballots have indeed already been sent out and some have been returned. The costs of reprinting all the ballots will be substantial and it may well be that no decision on the merits can be reached by the Court of Appeals in time to reprint the ballots excluding petitioners, should they lose on the merits.

I have been unable to hear oral argument and have only the papers of the parties before me.

On the basis of these papers I have concluded that in fairness to the parties I must deny the injunction, not because the cause lacks merit but because orderly election processes would likely be disrupted by so late an action. The time element has plagued many of these election cases; but one in my position cannot give relief in a responsible way when the application is as tardy as this one.

So I deny the injunction.


text:
    IN RE BERG et al.
    No. A-460.
    Decided November 2, 1972
   Mr. Justice Douglas, Circuit Justice.

The Court of Appeals granted a stay in this case until 5:30 p. m. (P. s. t.) today. While the application was filed here October 28, 1972, I did not desire to act until the Solicitor General had time to respond. His response came in yesterday afternoon.

My conclusion is that the case is analogous to the Ellsberg case (Russo v. Byrne, No. 72-307, O. T. 1972) now before the Court; but is more particularly related to Black v. United States, 385 U. S. 26, and O’Brien v. United States, 386 U. S. 345.

The issue of electronic surveillance in the present case raises questions under the Sixth as well as the Fourth Amendment. Central is the question whether the unawareness of the prosecution is sufficient to bring to an end the judicial inquiry or whether some diligent search of the prosecution is necessary. In Black a new trial was ordered even though the prosecutor did not know he had in his possession attorney-client conversations and even though none of them was used.

I have concluded to grant a stay, good until the matter can be presented to the full Court and until the Court acts on it.

       While the prosecution filed affidavits that none of applicants’ conversations was “bugged,” there had been no search for any conversations of their attorneys. It would seem that a client is an “aggrieved” person within the meaning of 18 U. S. C. §§2510 (11) and 3504 (a) (1) when and if the conversations of his attorney are “bugged” and used against him.


author: Mr. Justice Marshall, Circuit Justice.

text:
    O’BRIEN et al. v. SKINNER, SHERIFF, et al.
    No. A-484.
    Decided November 6, 1972
   Mr. Justice Marshall, Circuit Justice.

Applicants, 72 prisoners in County Jail' in Monroe County, New York, applied to me in my capacity as a Circuit Justice for a stay of a New York Court of Appeals judgment entered November 3, 1972.

The applicants are either convicted misdemeanants or persons who have been convicted of no crime but are awaiting trial. New York law makes no provision for the disfranchisement of these groups. Nonetheless, applicants allege that they have been prevented from registering to vote because correctional and election officials have refused to provide them with absentee ballots, refused to establish mobile voting and registration equipment at the prison, and refused to transport them to the polls. Applicants argue that these restrictions on their right of franchise are not supported by the sort of “compelling state interest” that this Court has in the past required. See, e. g., Dunn v. Blumstein, 405 U. S. 330 (1972). They challenge the constitutionality of the New York statute that permits absentee voting by persons confined to state institutions by reason of physical disability but makes no provision for absentee voting by persons confined to state prisons after misdemeanor convictions or while awaiting trial.

In response, respondents rely on this Court’s decision in McDonald v. Board of Election Comm’rs, 394 U. S. 802 (1969). In McDonald we held that, under the circumstances of that case, the mere allegation that Illinois had denied absentee ballots to unsentenced inmates awaiting trial in the Cook County jail did not make out a constitutional claim. I am not persuaded, however, that McDonald governs this case. Cf. Goosby v. Osser, 452 F. 2d 39 (CA3 1971), cert. granted, 408 U. S. 922 (1972). In McDonald there was “nothing in the record to indicate that the Illinois statutory scheme [had] an impact on appellants’ ability to exercise the fundamental right to vote.” 394 U. S., at 807. We pointed out that the record was “barren of any indication that the State might not, for instance, possibly furnish the .jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own.” Id., at 808 n. 6. Here, in contrast, it seems clear that the State has rejected alternative means by which applicants might exercise their right to vote. Deprivation of absentee ballots is therefore tantamount to deprivation of the franchise itself, and it is axiomatic that courts must “strictly scrutinize” the discriminatory withdrawal of voting rights. See, e. g., Harper v. Virginia Board of Elections, 383 U. S. 663, 670 (1966).

Compelling practical considerations nonetheless lead me to the conclusion that this application must be denied. Applicants waited until the last day of registration before submitting their registration statements to election officials, and they filed this application a scant four days before the election.

Moreover, neither party submitted to me the Court of Appeals opinion denying relief until 4 o’clock this afternoon, and I still do not have before me any written indication as to whether applicants have applied to the state court for a stay or as to the state court’s disposition of any such application.

Even if it were possible to arrange for absentee ballots at this late date, election officials can hardly be expected to process the registration statements in the remaining time before the election. It is entirely possible that some of the applicants are disqualified from voting for other reasons or that, while qualified to vote somewhere in the State, they are not qualified to cast ballots in Monroe County. The States are, of course, entitled to a reasonable period within which to investigate the qualifications of voters. See Dunn v. Blumstein, supra, at 348.

Voting rights are fundamental, and alleged disfranchisement of even a small group of potential voters is not to be taken lightly. But the very importance of the rights at stake militates against hasty or ill-considered action. This Court cannot operate in the dark, and it cannot require state officials to do the impossible. With the case in this posture, I conclude that effective relief cannot be provided at this late date. I must therefore deny the application.


text:
    FARR v. PITCHESS, SHERIFF OF LOS ANGELES COUNTY, CALIFORNIA
    No. A-705.
    Decided January 11, 1973
    See: 22 Cal. App. 3d 60, 99 Cal. Rptr. 342.
   Mr. Justice Douglas, Circuit Justice.

Applicant Farr was a reporter for the Los Angeles Herald Examiner and published stories about the Manson trial, which were greatly publicized during the trial. The trial judge in the case had issued orders barring the litigants and their lawyers from giving certain information to the press. When the Manson trial was ended, the trial judge summoned Farr and asked him what the sources of his information were. Farr acknowledged that he had received the news story from two of the six attorneys of record in the Manson case and some of it from another individual who was subject to the order concerning publicity but who was not an attorney. Farr refused to disclose the names and was committed to prison for civil contempt. He obtained no relief in the state courts and then brought federal habeas corpus which the District Court denied and, pending his appeal to the Court of Appeals for the Ninth Circuit, he has applied to me for bail or release on personal recognizance.

Like the three cases decided in Branzburg v. Hayes, 408 U. S. 665, the present case involves civil, not criminal, contempt. Branzburg, however, involved refusal of a reporter to testify before a grand jury and reveal the sources of his news stories. The federal rule is that just as the power of Congress to commit a recalcitrant witness for civil contempt ends with the adjournment of that Congress, Anderson v. Dunn, 6 Wheat. 204, 231, so does the power of the grand jury end when the grand jury’s term expires. Shillitani v. United States, 384 U. S. 364, 370-372.

What rule obtains in California is not clear; but it is intimated that theoretically at least imprisonment for civil contempt could be for life.

The commitment is defended on the ground that the trial court, armed with power to keep the trial free from prejudicial publicity, Sheppard v. Maxwell, 384 U. S. 333, has authority to discipline those who violated its order barring release of publicity. The necessity to make Farr talk was therefore held to be compelling.

California has a statute protecting a newsman from disclosing his sources of news and barring a court from holding him in contempt for refusal to disclose. The Court of Appeal noted that while Farr had been a newsman at the time he wrote the story, he had left that employment when he was questioned by the trial judges. The Court of Appeal assertedly did not reach the issue as to whether Farr was covered by the section, holding instead that to construe the statute as granting immunity to Farr, in the face of the facts “would be to countenance an unconstitutional interference by the legislative branch with an inherent and vital power of the court to control its own proceedings.”

It is argued, in return, that the remedy of criminal contempt against those subject to the trial court's publicity order is now out of reach because of the running of the statute of limitations on criminal contempt and therefore that the present civil contempt proceedings against Farr serve no legitimate state interest. I have received a response from respondent which says that this is “purely a matter of state concern” — that “there is no statute of limitations” in California for civil contempts. Whether this means that Farr could be imprisoned for life is not clear.

What the merits of the case may be is not in my province at this stage. The only question is whether the issue presented is a substantial one. Our Branzburg decision plainly does not cover it. Our denial of cer-tiorari imparts no implication or inference concerning the Court’s view of the merits, as Mr. Justice Frankfurter made clear in Maryland v. Baltimore Radio Show, 338 U. S. 912, 919.

The question, so far as I can tell, is not covered by any of our prior decisions. The case is a recurring one where the interests of a fair trial sometimes collide with the requirements of a free press. A fair trial requires that a jury be insulated from the barrage of prejudicial news stories that is sometimes laid down on the courtroom. It is said that in the present case the Manson jury was sequestered and so not subject to the kind of influence we condemned in Sheppard v. Maxwell.

The issue is not free from doubt. Yet since the precise question is a new one not covered by our prior decisions, I have concluded in the interest of justice to release Farr on his personal recognizance pending decision of his habeas corpus case by the Court of Appeals.

       The opinion of the California Court of Appeal, Second Appellate District, is reported in 22 Cal. App. 3d 60, 99 Cal. Rptr. 342. The Supreme Court of California denied a hearing on March 27, 1972. This Court denied certiorari on November 13, 1972. Ante, p. 1011.

       Calif. Evid. Code § 1070 (Supp. 1972) provides:

        “A publisher, editor, reporter, or other person connected with or employed upon a newspaper, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a court, the Legislature, or any administrative body, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper.
      “Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television.”

       Calif. Penal Code § 166 provides that willful disobedience of a lawfully issued court order is a misdemeanor. Calif. Penal Code § 801 provides a one-year period of limitation from the commission of the crime to the filing of the indictment, information, or complaint.