author: Mr. Justice Rehnquist Mr. Justice Douglas, Mr. Justice Marshall,

text:
    HAM v. SOUTH CAROLINA
    No. 71-5139.
    Argued November 6, 1972
    Decided January 17, 1973
    Rehnquist, J., delivered the opinion of the Court, in which Burgek, C. J., and Brennan, Stewart, White, Blackmun, and Powell, JJ., joined. Douglas, post, p. 529, and Marshall, JJ., post, p. 530, filed opinions concurring in part and dissenting in part.

      Jonathan Shapiro argued the cause for petitioner. With him on the brief were Jack Greenberg, James M. Nabrit III, and Anthony G. Amsterdam.

      Timothy G. Quinn, Assistant Attorney General of South Carolina, argued the cause for respondent. With him on the brief was Daniel B. McLeod, Attorney General.
   Mr. Justice Rehnquist

delivered the opinion of the Court.

Petitioner was convicted in the South Carolina trial court of the possession of marihuana in violation of state law. He was sentenced to 18 months’ confinement, and on appeal his conviction was affirmed by a divided South Carolina Supreme Court. 256 S. C. 1, 180 S. E. 2d 628 (1971). We granted certiorari limited to the question of whether the trial judge’s refusal to examine jurors on voir dire as to possible prejudice against petitioner violated the latter’s federal constitutional rights. 404 U. S. 1057 (1972).

Petitioner is a young, bearded Negro who has lived most of his life in Florence County, South Carolina. He appears to have been well known locally for his work in such civil rights activities as the Southern Christian Leadership Conference and the Bi-Racial Committee of the City of Florence. He has never previously been convicted of a crime. His basic defense at the trial was that law enforcement officers were “out to get him” because of his civil rights activities, and that he had been framed on the drug charge.

Prior to the trial judge’s voir dire examination of prospective jurors, petitioner’s counsel requested the judge to ask jurors four questions relating to possible prejudice against petitioner. The first two questions sought to elicit any possible racial prejudice against Negroes; the third question related to possible prejudice against beards; and the fourth dealt with pretrial publicity relating to the drug problem. The trial judge, while putting to the prospective jurors three general questions as to bias, prejudice, or partiality that are specified in the South Carolina statutes, declined to ask any of the four questions posed by petitioner.

The dissenting justices in the Supreme Court of South Carolina thought that this Court's decision in Aldridge v. United States, 283 U. S. 308 (1931), was binding on the State. There a Negro who was being tried for the murder of a white policeman requested that prospective jurors be asked whether they entertained any racial prejudice. This Court reversed the judgment of conviction because of the trial judge's refusal to make such an inquiry. Mr. Chief Justice Hughes, writing for the Court, stated that the “essential demands of fairness” required the trial judge under the circumstances of that case to interrogate the veniremen with respect to racial prejudice upon the request of counsel for a Negro criminal defendant. Id., at 310.

The Court's opinion relied upon a number of state court holdings throughout the country to the same effect, but it was not expressly grounded upon any constitutional requirement. Since one of the purposes of the Due Process Clause of the Fourteenth Amendment is to insure these “essential demands of fairness,” e. g., Lisenba v. California, 314 U. S. 219, 236 (1941), and since a principal purpose of the adoption of the Fourteenth Amendment was to prohibit the States from invidiously discriminating on the basis of race, Slaughter-House Cases, 16 Wall. 36, 81 (1873), we think that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice. South Carolina law permits challenges for cause, and authorizes the trial judge to conduct voir dire examination of potential jurors. The State having created this statutory framework for the selection of juries, the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this record the petitioner be permitted to have the jurors interrogated on the issue of racial bias. Cf. Groppi v. Wisconsin, 400 U. S. 505, 508 (1971); Bell v. Burson, 402 U. S. 535, 541 (1971).

We agree with the dissenting justices of the Supreme Court of South Carolina that the trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner. The Court in Aldridge was at pains to point out, in a context where its authority within the federal system of courts allows a good deal closer supervision than does the Fourteenth Amendment, that the trial court “had a broad discretion as to the questions to be asked,” 283 U. S., at 310. The discretion as to form and number of questions permitted by the Due Process Clause of the Fourteenth Amendment is at least as broad. In this context, either of the brief, general questions urged by the petitioner would appear sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain.

The third of petitioner’s proposed questions was addressed to the fact that he wore a beard. While we cannot say that prejudice against people with beards might not have been harbored by one or more of the potential jurors in this case, this is the beginning and not the end of the inquiry as to whether the Fourteenth Amendment required the trial judge to interrogate the prospective jurors about such possible prejudice. Given the traditionally broad discretion accorded to the trial judge in conducting voir dire, Aldridge v. United States, supra, and our inability to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices, we do not believe the petitioner’s constitutional rights were violated when the trial judge refused to put this question. The inquiry as to racial prejudice derives its constitutional stature from the firmly established precedent of Aldridge and the numerous state cases upon which it relied, and from a principal purpose as well as from the language of those who adopted the Fourteenth Amendment. The trial judge’s refusal to inquire as to particular bias against beards, after his inquiries as to bias in general, does not reach the level of a constitutional violation.

Petitioner’s final question related to allegedly prejudicial pretrial publicity. But the record before us contains neither the newspaper articles nor any description of the television program in question. Because of this lack of material in the record substantiating any pretrial publicity prejudical to this petitioner, we have no occasion to determine the merits of his request to have this question posed on voir dire.

Because of the trial court’s refusal to make any inquiry as to racial bias of the prospective jurors after petitioner’s timely request therefor, the judgment of the Supreme Court of South Carolina is

Reversed.

Mr. Justice Douglas,

concurring in part and dissenting in part.

I concur in that portion of the majority’s opinion that holds that the trial judge was constitutionally compelled to inquire into the possibility of racial prejudice on voir dire. I think, however, that it was an abuse of discretion for the trial judge to preclude the defendant from an inquiry by which prospective jurors’ prejudice to hair growth could have been explored.

It is unquestioned that a defendant has the constitutional right to a trial by a neutral and impartial jury. Criminal convictions have been reversed when the limitations on voir dire have unreasonably infringed the exercise of this right. Aldridge v. United States, 283 U. S. 308. Such reversals have not been limited to incidents where the defendant was precluded from inquiring into possible racial prejudice. In both Morford v. United States, 339 U. S. 258, and Dennis v. United States, 339 U. S. 162, defendants were held to have the right to inquire into possible prejudices concerning the defendants’ alleged ties with the Communist party. In Aldridge v. United States, supra, at 313, this Court made it clear that voir dire aimed at disclosing “prejudices of a serious character” must be allowed.

Prejudices involving hair growth are unquestionably of a “serious character.” Nothing is more indicative of the importance currently being attached to hair growth by the general populace than the barrage of cases reaching the courts evidencing the attempt by one segment of society officially to control the plumage of another. On the issue of a student’s right to wear long hair alone there are well over 50 reported cases, Olff v. East Side Union High School, 404 U. S. 1042. In addition, the issue of plumage has surfaced in the employment-discrimination context, Roberts v. General Mills, Inc., 337 F. Supp. 1055 (ND Ohio); Conard v. Goolsby, 350 F. Supp. 713 (ND Miss.), as well as the military area, Friedman v. Froehlke, 5 S. S. L. R. 3179 (Mass.).

The prejudices invoked by the mere sight of non-conventional hair growth are deeply felt. Hair growth is symbolic to many of rebellion against traditional society and disapproval of the way the current power structure handles social problems. Taken as an affirmative declaration of an individual’s commitment to a change in social values, nonconventional hair growth may become a very real personal threat to those who support the status quo. For those people, noncon-ventional hair growth symbolizes an undesirable lifestyle characterized by unreliability, dishonesty, lack of moral values, communal (“communist”) tendencies, and the assumption of drug use. If the defendant, especially one being prosecuted for the illegal use of drugs, is not allowed even to make the most minimal inquiry to expose such prejudices, can it be expected that he will receive a fair trial?

Since hair growth is an outward manifestation by which many people determine whether to apply deep-rooted prejudices to an individual, to deny a defendant the right to examine this aspect of a prospective juror’s personality is to deny him his most effective means of voir dire examination.

Mr. Justice Marshall,

concurring in part and dissenting in part.

I, too, concur in that portion of the majority’s opinion which holds that the trial judge was constitutionally compelled to inquire into the possibility of racial prejudice on voir dire. I also agree that, on this record, we cannot say that the judge was required to ask questions about pretrial publicity. I cannot agree, however, that the judge acted properly in totally foreclosing other reasonable and relevant avenues of inquiry as to possible prejudice.

Long before the Sixth Amendment was made applicable to the States through the Due Process Clause of the Fourteenth Amendment, see Duncan v. Louisiana, 391 U. S. 145 (1968), this Court held that the right to an “impartial” jury was basic to our system of justice.

“In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. ... In the language of Lord Coke, a juror must be as ‘indifferent as he stands unsworne.’ Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U. S. 199. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 (1807). ‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’ Reynolds v. United States, 98 U. S. 145, 155.” Irvin v. Dowd, 366 U. S. 717, 722 (1961) (footnote omitted).

See also Turner v. Louisiana, 379 U. S. 466, 471-473 (1965); Glasser v. United States, 315 U. S. 60, 84-86 (1942).

We have never suggested that this right to impartiality and fairness protects against only certain classes of prejudice or extends to only certain groups in the population. It makes little difference to a criminal defendant whether the jury has prejudged him because of the color of his skin or because of the length of his hair. In either event, he has been deprived of the right to present his case to neutral and detached observers capable of rendering a fair and impartial verdict. It is unsurprising, then, that this Court has invalidated decisions reached by juries with a wide variety of different prejudices. See, e. g., Witherspoon v. Illinois, 391 U. S. 510 (1968); Irvin v. Dowd, supra; Morford v. United States, 339 U. S. 258 (1950).

Moreover, the Court has also held that the right to an impartial jury carries with it the concomitant right to take reasonable steps designed to insure that the jury is impartial. A variety of techniques is available to serve this end, see Groppi v. Wisconsin, 400 U. S. 505, 509-511 (1971); Sheppard v. Maxwell, 384 U. S. 333, 357-363 (1966), but perhaps the most important of these is the jury challenge. See, e. g., Johnson v. Louisiana, 406 U. S. 356, 379 (1972) (opinion of Powell, J.); Swain v. Alabama, 380 U. S. 202, 209-222 (1965). Indeed, the first Mr. Justice Harlan, speaking for a unanimous Court, thought that the right to challenge was “one of the most important of the rights secured to the accused” and that “[a]ny system for the empanelling of a jury that [prevents] or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned.” Pointer v. United States, 151 U. S. 396, 408 (1894). See also Lewis v. United States, 146 U. S. 370, 376 (1892).

Of course, the right to challenge has little meaning if it is unaccompanied by the right to ask relevant questions on vow dire upon which the challenge for cause can be predicated. See Swain v. Alabama, supra, at 221. It is for this reason that the Court has held that “[p] reservation of the opportunity to prove actual bias is a guarantee of a defendant’s right to an impartial jury,” Dennis v. United States, 339 U. S. 162, 171-172 (1950), and that the Court has reversed criminal convictions when the right to query on voir dire has been unreasonably infringed. See, e. g., Aldridge v. United States, 283 U. S. 308 (1931). Contrary to the majority’s suggestion, these reversals have not been confined to cases where the defendant was prevented from asking about racial prejudice. See, e. g., Morford v. United States, supra. Cf. Dennis v. United States, supra.

I do not mean to suggest that a defendant must be permitted to propound any question or that limitless time must be devoted to preliminary voir dire. Although the defendant’s interest in a jury free of prejudice is strong, there are countervailing state interests in the expeditious conduct of criminal trials and the avoidance of jury intimidation. These interests bulk larger as the possibility of uncovering prejudice becomes more attenuated. The trial judge has broad discretion to refuse to ask questions that are irrelevant or vexatious. Thus, where the claimed prejudice is of a novel character, the judge might require a preliminary showing of relevance or of possible prejudice before allowing the questions.

But broad as the judge’s discretion is in these matters, I think it clear that it was abused in this case. The defense attorney wished to ask no more than four questions, which would have required a scant 15 additional minutes of the court’s time. The inquiries, directed inter alia to possible prejudice against people with beards, were obviously relevant, since the defendant was in fact bearded. Moreover, the judge afforded petitioner no opportunity to show that there were a significant number of potential jurors who might be prejudiced against people with beards. At minimum, I think such an opportunity should have been provided. I cannot believe that in these circumstances an absolute ban on questions designed to uncover such prejudice represents a proper balance between the competing demands of fairness and expedition.

It may be that permitting slightly more extensive voir dire examination will put an additional burden on the administration of justice. But, as Mr. Chief Justice Hughes argued 40 years ago, “it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute.” Aldridge v. United States, 283 U. S., at 315.

I would therefore hold that the defendant in this case, and subject to the limitations set out above, had a constitutionally protected interest in having the judge propound the additional question, in some form, to the jury.

       S. C. Code §32-1506 (1962).

       The four questions sought to be asked are the following:
      “1. Would you fairly try this case on the basis of the evidence and disregarding the defendant’s race?
      “2. You have no prejudice against negroes? Against black people? You would not be influenced by the use of the term ‘black’?
      “3. Would you disregard the fact that this defendant wears a beard in deciding this case?
      “4. Did you watch the television show about the local drug problem a few days ago when a local policeman appeared for a long time? Have you heard about that show? Have you read or heard about recent newspaper articles to the effect that the local drug problem is bad? Would you try this case solely on the basis of the evidence presented in this courtroom? Would you be influenced by the circumstances that the prosecution’s witness, a police officer, has publicly spoken on TV about drugs?”

       S. C. Code §38-202 (1962). The three questions asked of all prospective jurors in this case were, in substance, the following:
      “1. Have you formed or expressed any opinion as to the guilt or innocence of the defendant, Gene Ham?

        “2. Are you conscious of any bias or prejudice for or against him?
      “3. Can you give the State and the defendant a fair and impartial trial?”

       The record indicates that there was a brief colloquy between petitioner’s counsel and the trial judge, in which the former apparently offered newspaper accounts and an editorial in support of his request that the question be propounded; the judge responded that he did not consider the items submitted prejudicial. The Supreme Court of South Carolina, discussing prejudicial publicity in the context of petitioner’s claim that he was entitled to a change of venue, stated that “[t]he two newspaper clippings and one editorial concerning drug abuse did not name the defendant or refer in any way to his trial.”

       Indeed, it was not so confined in Aldridge itself, upon which the majority heavily relies. Aldridge pointed out that “[t]he right to examine jurors on the voir dire as to the existence of a disqualifying state of mind, has been upheld with respect to other races than the black race, and in relation to religious and other prejudices of a serious character.” 283 U. S. 308, 313 (1931).

       I also agree with the majority that the judge may properly decline to ask the question in any particular form or ask any particular number of questions on a subject.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Stewart,

license: Public Domain

text:
    GOMEZ v. PEREZ
    No. 71-575.
    Argued December 6, 1972
    Decided January 17, 1973

      Stanley Dalton Wright argued the cause for appellant. With him on the brief were Melvin N. Eichelbaum and Harry B. Adams III.

      Joseph Jaworski, by invitation of the Court, 408 TJ. S. 942, argued the cause and filed a brief as amicus curiae in support of the judgment below.

      Norman Dorsen, Melvin L. Wulf, and Sanford Jay Rosen filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

      Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis and Pat Bailey, Assistant Attorneys General, filed a brief for the State of Texas as amicus curiae urging affirmance.
   Per Curiam.

The issue presented by this appeal is whether the laws of Texas may constitutionally grant legitimate children a judicially enforceable right to support from their natural fathers and at the same time deny that right to illegitimate children.

In 1969, appellant filed a petition in Texas District Court seeking support from appellee on behalf of her minor child. After a hearing, the state trial judge found that appellee is “the biological father” of the child, and that the child “needs the support and maintenance of her father,” but concluded that because the child was illegitimate “there is no legal obligation to support the child and the Plaintiff take nothing.” The Court of Civil Appeals affirmed this ruling over the objection that this illegitimate child was being denied equal protection of law. 466 S. W. 2d 41. The Texas Supreme Court refused application for a writ of error, finding no “reversible error.” We noted probable jurisdiction. 408 U. S. 920.

In Texas, both at common law and under the statutes of the State, the natural father has a continuing and primary duty to support his legitimate children. See Lane v. Phillips, 69 Tex. 240, 243, 6 S. W. 610, 611 (1887) ; Tex. Fam. Code §4.02 (1970) (husband's duty). That duty extends even beyond dissolution of the marriage, Tex. Rev. Civ. Stat., Art. 4639a (Supp. 1972-1973); Hooten v. Hooten, 15 S. W. 2d 141 (Tex. Ct. Civ. App. 1929), and is enforceable on the child’s behalf in civil proceedings and, further, is the subject of criminal sanctions. Tex. Penal Code § 602. The duty to support exists despite the fact that the father may not have custody of the child. Hooten v. Hooten, supra. The Court of Civil Appeals has held in this case that nowhere in this elaborate statutory scheme does the State recognize any enforceable duty on the part of the biological father to support his illegitimate children and that, absent a statutory duty to support, the controlling law is the Texas common-law rule that illegitimate children, unlike legitimate children, have no legal right to support from their fathers. See also Home of the Holy Infancy v. Kaska, 397 S. W. 2d 208 (Tex. 1965); Lane v. Phillips, supra, at 243, 6 S. W., at 611; Bjorgo v. Bjorgo, 391 S. W. 2d 528 (Tex. Ct. Civ. App. 1965). It is also true that fathers may set up illegitimacy as a defense to prosecutions for criminal nonsupport of their children. See Curtin v. State, 155 Tex. Cr. R. 625, 238 S. W. 2d 187 (1950); Beaver v. State, 96 Tex. Cr. R. 179, 256 S. W. 929 (1923).

In this context, appellant’s claim on behalf of her daughter that the child has been denied equal protection of the law is unmistakably presented. Indeed, at argument here, the attorney for the State of Texas, appearing as amicus curiae, conceded that but for the fact that this child is illegitimate she would be entitled to support from appellee under the laws of Texas.

We have held that under the Equal Protection Clause of the Fourteenth Amendment a State may not create a right of action in favor of children for the wrongful death of a parent and exclude illegitimate children from the benefit of such a right. Levy v. Louisiana, 391 U. S. 68 (1968). Similarly, we have held that illegitimate children may not be excluded from sharing equally with other children in the recovery of workmen’s compensation benefits for the death of their parent. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972). Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother. For a State to do so is “illogical and unjust.” Id., at 175. We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination. Stanley v. Illinois, 405 U. S. 645, 656-657 (1972); Carrington v. Rash, 380 U. S. 89 (1965).

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

It is so ordered.

Mr. Justice Stewart,

with whom Mr. Justice Reeqst-quist joins,

dissenting.

This case came here as an appeal, on the representation that the Texas courts had sustained the constitutionality of § 4.02 of the Texas Family Code and Articles 602 and 602-A of the Texas Penal Code, over a challenge to those statutes under the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction, 408 U. S. 920, to consider whether the alleged discrimination between legitimate and illegitimate children, in terms of the support obligations of their biological fathers, denied equal protection to illegitimate children under the principles of Weber v. Aetna Casualty & Surety Co., 406 U. S. 164; Glona v. American Guarantee & Liability Insurance Co., 391 U. S. 73; and Levy v. Louisiana, 391 U. S. 68.

Upon the submission of briefs and oral argument, it became clear that neither statute had been the actual subject of litigation in the courts of Texas. Hence, this is not properly an appeal under 28 U. S. C. § 1257 (2). I would, therefore, dismiss the appeal for want of jurisdiction, and treat “the papers whereon the appeal was taken” as a petition for writ of certiorari. 28 U. S. C. § 2103.

The parties were not prepared to submit this case as one challenging the common-law treatment of illegiti-mates in Texas, and failed to provide this Court with a sufficient understanding of Texas law with respect to such matters as custodial versus noncustodial support-obligations, legitimation, common-law marriage, and the effect of a Texas statute, §4.02 of the Family Code, which became law after this litigation had begun. With the issues so vaguely drawn and the alleged discrimina-tions so imprecise, I would dismiss the writ of cer-tiorari as improvidently granted.

       Section 4.02 became effective after the commencement of appellant’s suit, but the provision is identical (except for punctuation) to its predecessor, Tex. Rev. Civ. Stat., Husband and Wife, Art. 4614, in 1 Tex. Laws, c. 309, p. 736 (60th Legislature, Reg. Sess. 1967). Section 4.02 was enacted as part of a codification of Texas family law.

       Tr. of Oral Arg. 24. There was some question at argument whether the statutory scheme relating to paternal support of children was properly drawn into question in the state courts. In the circumstances of this case, we need not resolve the question. First, the State of Texas asserts no prejudice from appellant’s apparent failure to explicitly draw attention to the individual statutes that make up the so-called Texas rule regarding support of legitimate and illegitimate children. On the contrary, the State asserted here that it was prepared to meet appellant’s constitutional attack on its statutes on the merits. Tr. of Oral Arg. 28. Second, under our cases, “the unrestricted notation of probable jurisdiction of the appeal is to be understood as a grant of the writ” of certiorari on “nonap-pealable” issues presented in the case. Mishkin v. New York, 383 U. S. 502, 512 (1966). Appellant’s federal claim, which was rejected in the state courts, that her child was being denied equal protection of laws is, therefore, properly before us in any event.

       See also Davis v. Richardson, 342 F. Supp. 588 (Conn.), aff’d, post, p. 1069 (1972); Griffin v. Richardson, 346 F. Supp. 1226 (Md.), aff’d, post, p. 1069 (1972).


author: Per Curiam. Mr. Justice Marshall,

text:
    INDIANA EMPLOYMENT SECURITY DIVISION et al. v. BURNEY
    No. 71-1119.
    Argued December 7, 1972
    Decided January 17, 1973

      Darrel K. Diamond, Deputy Attorney General of Indiana, argued the cause for appellants. With him on the briefs was Theodore L. Sendalc, Attorney General.

      Ivan E. Bodensteiner argued the cause for appellee. With him on the brief were Stephen P. Berzon, Stefan M. Rosenzweig, and Fred H. Altshuler.

    Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Elizabeth Palmer, Assistant Attorney General, and Asher Rubin, Deputy Attorney General, for the State of California, and by Harry T. Ice for College University Corp. et al.
    Briefs of amici curiae urging affirmance were filed by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, and by Dennis R. Yeager, E. Richard Larson, Howard I. Rosenberg, James H. Seck-inger, John M. Levy, Marttie Louis Thompson, Joseph A. Matera, C. Christopher Brown, and C. Lyonel Jones for National Employment Law Project et al.
   Per Curiam.

We noted probable jurisdiction in this case, 406 U. S. 956, to review the judgment of a three-judge district court, holding that Indiana’s system of administering unemployment insurance was in conflict with § 303 (a)(1) of the Social Security Act, 49 Stat. 626, as amended, 42 U. S. C. §503 (a)(1). Before the three-judge court entered its injunction, Indiana’s practice was to discontinue unemployment benefits upon a determination of ineligibility, that determination taking place without the benefit of a full hearing for the erstwhile beneficiary.

After several months of effort, however, the class representative in this litigation, Mrs. Burney, succeeded in obtaining a reversal of the initial determination of ineligibility. She has now received full retroactive compensation.

The full settlement of Mrs. Burney’s financial claim raises the question whether there continues to be a case or controversy in this lawsuit. Though the appellee purports to represent a class of all present and future recipients of unemployment insurance, there are no named representatives of the class except Mrs. Burney, who has been paid. Cf. Bailey v. Patterson, 369 U. S. 31, 32-33. Accordingly, the judgment is vacated and the case is remanded to the District Court to consider whether it has become moot.

It is so ordered.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins,

dissenting.

I consider the remand ordered by the Court to be pointless. The only issue in this case is the right of a recipient of unemployment insurance benefits to a full evidentiary hearing before those benefits are terminated as the result of an administrative determination of ineligibility. The Court evidently concludes that this action may be moot as to Mrs. Burney since she has now received a full evidentiary hearing and settlement of her claim, and as to the affected class since Mrs. Burney is its only named representative in this action. I think it clear on the record before us, however, that nothing has occurred at either the administrative or judicial level since Mrs. Burney entered this suit that would suffice to moot her claim or that of the class.

Mrs. Burney’s benefits were suspended beginning the week of March 23, 1971. On April 2, 1971, some three weeks before Mrs. Burney sought leave to intervene in this action, she invoked the existing Indiana appeal procedure, see Ind. Stat. Ann. § 52-1542a (e) (Supp. 1970), now Ind. Stat. Ann. § 52-1542a (e) (Supp. 1972), and requested an administrative hearing. She received such a hearing on July 1, 1971, while this action was still pending in the District Court. Although the hearing referee affirmed the suspension order, on December 6, 1971, the Division Review Board reversed the referee and held that Mrs. Burney’s benefits had been erroneously suspended. Meanwhile, on October 27, 1971, the District Court granted summary judgment in favor of Mrs. Burney and the affected class.

Certainly the full administrative hearing that Mrs. Burney received during the pendency of this case in the District Court cannot be considered to be an indication that Indiana has voluntarily chosen to provide henceforth the pre-termination hearing that Mrs. Burney claims is required under both § 303 (a)(1) of the Social Security Act, 42 U. S. C. §503 (a)(1), and the Due Process Clause. So far as appears, the hearing afforded Mrs. Burney was nothing more than the posi-termination hearing for which provision is already made in Indiana law.

Nor can I accept any suggestion that Mrs. Burney’s attack upon appellants’ failure to provide a pre-termi-nation hearing may be moot merely because she has received a full post-termination hearing and settlement of her claim since entering this litigation. A determination of mootness based on this line of reasoning would effectively bar the full and final litigation of whether a pre-termination hearing is legally required, while leaving Indiana free to continue to provide Mrs. Burney and other beneficiaries of unemployment insurance with only post-termination hearings.

It is, by now, clear that a claim is not moot if it is “capable of .repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911); see Moore v. Ogilvie, 394 U. S. 814, 816 (1969). It is entirely possible that Mrs. Burney will, in the future, become employed and then once more become unemployed. If this action is deemed to be moot and the existing state procedure remains intact, she then may encounter the same, problem of suspension of benefits without a prior hearing that she has encountered in this instance. And, inevitably, the post-termination administrative process will again be completed before final legal relief may be obtained as to the pre-termination hearing question. Indeed, this sequence Of events might repeat itself any number of times for Mrs. Burney if the mere provision of the post-termination hearing and settlement of her particular claim were considered sufficient to moot the issue whether a pre-termination hearing is required. The principle that a federal court will not pass upon a moot controversy does not require us to set in motion such a litigious merry-go-round where, as here, there is a short-lived controversy of a potentially recurring character.

It is no answer that there are other beneficiaries of unemployment insurance whose benefits may be terminated in advance of a full hearing and who might therefore institute litigation concerning the timing issue. Such litigation can be expected to fare no better, or worse, in terms of problems of mootness, than this case. As with Mrs. Burney’s claim, the post-termination administrative process will invariably be completed before a final adjudication is obtained. In fact, appellants indicate that the post-termination hearing procedure has been speeded up significantly since Mrs. Burney’s administrative appeal was processed.

It is true that the District Court entered an injunction ordering Indiana to provide pre-termination hearings, and that injunction is currently in effect since no stay has been entered. As a result, pre-termination hearings are presently being provided in Indiana. But this certainly does not moot the case, for it is well established that compliance with a court order pendente lite does not moot the underlying controversy, see, e. g., Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U. S. 437, 442 (1948); Dakota County v. Glidden, 113 U. S. 222, 224 (1885). A determination of mootness would require that the decision below be vacated and the action dismissed. See, e. g., SEC v. Medical Committee for Human Rights, 404 U. S. 403, 407 (1972); United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953). Under such circumstances, appellants would be “free to return to [their] old ways.” Ibid. For a case to be moot it must be “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Assn., 393 U. S. 199, 203 (1968). In this case, appellants have hardly provided such assurance — as is evident from the very fact that this appeal was taken from the adverse decision below.

In my view, then, this case remains viable as to both Mrs. Burney and the affected class. Accordingly, I see no need for the remand ordered by the Court. On the merits, I would affirm the judgment of the District Court in light of our decision in Goldberg v. Kelly, 397 U. S. 254 (1970). See Torres v. New York Dept. of Labor, 405 U. S. 949 (1972) (statement of Douglas, Brennan, and Marshall, JJ.).

       The three-judge court was convened pursuant to 28 U. S. C. §§ 2281, 2284, to consider the prayer for an injunction against enforcement of the Indiana statute, Ind. Ann. Stat. § 52M542a (e) (Supp. 1970), on the grounds that it violated the appellee’s right to due process under the Fourteenth Amendment. The District Court did not reach this issue.

       The District Court entered a temporary restraining order against the appellants on May 7,1971. Presumably, the appellee’s payments were then restored pending the outcome of her hearing before a referee, which took place, on July 1, 1971. On July 13, 1971, the referee affirmed the determination of ineligibility. Mrs. Burney then appealed to the Division Review Board. After the judgment and injunction were entered by the District Court, the Review Board reversed the referee and awarded payments to Mrs. Burney. This latter determination was unrelated to the injunction.

       This action was originally brought to declare invalid the Indiana statutory provision that an unemployed individual found initially to be eligible by the Division authorities would have his benefits suspended upon appeal by the employer of the eligibility determination. That issue was effectively resolved against the Division by this Court’s decision in California Dept. of Human Resources Development v. Java, 402 U. S. 121 (1971), which was handed down while this case was pending in the District Court, and it is not presented on this appeal. On May 7, 1971, the District Court allowed Mrs. Burney to intervene in this action in order to raise the further issue whether a pre-termination hearing is necessary where the Division seeks to suspend payment of benefits because it has determined that a person who was initially eligible to receive unemployment benefits has since become ineligible.

       At the same time Mrs. Burney sought to intervene, she requested a temporary restraining order reinstating her benefits. On May 7, 1971, the District Court issued such an order directing that Mrs. Burney’s benefits be reinstated and not be again suspended “without a prior, due process hearing.” In light of the chronology 'of events in this case it appears that Mrs. Burney received only the regular post-termination hearing for which Indiana law provides. But even if the July 1 hearing was the product of the temporary restraining order, such compliance with the court order would not moot this case. See, e. g., Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U. S. 437, 442 (1948); Dakota County v. Glidden, 113 U. S. 222, 224, (1885).

       It particularly bears noting that in California Dept, of Human Human Resources Development v. Java, supra, at 123-124, which involved a related pre-termination hearing claim, see n. 1, supra, the Court never even suggested that there was any problem of mootness, although both appellees had received full post-termination administrative hearings during the pendency of the litigation.

       See Reply Brief for Appellants 8.

       See Brief for Appellee 6.

       I can see the purpose of a remand to a district court for consideration of possible mootness where the Court identifies disputed factual issues the resolution of which affects the continuing viability of the particular claim. See, e. g., Johnson v. New York State Education Dept., ante, p. 75. But here the Court fails to identify any such factual issue. Indeed, there do not appear to be any factual issues in dispute as to the administrative developments subsequent to Mrs. Burney's intervention in this suit. Under such circumstances, this Court is as competent as a district court to resolve initially the issue of mootness, and in the past it has proceeded to do so, see, e. g., SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972); United States v. Concentrated Phosphate Export Assn., 393 U. S. 199, 202-204 (1968).


text:
    July 7, 1972
    No. A-1320.
    Atchison, Topeka & Santa Fe Railway Co. et al. v. Wichita Board of Trade et al.
   D. C. Kan.

On consideration of the appellants’ application for stay, the appellees’ reply to the application, and the affidavits and memoranda filed in support of the application and reply, IT IS ORDERED:

(1) That, subject to the condition set forth in paragraph 2 herein, the judgment of the United States District Court for the District of Kansas entered in this matter on June 8, 1972, be and hereby is stayed pending a final determination of the appeal by this Court.

(2) That, as a condition of the foregoing stay, each railroad collecting in-transit grain inspection charges under the challenged tariffs shall immediately take steps, including publication of appropriate provisions in applicable tariffs, to do the following:

(a) keep accurate accounts in detail of all amounts hereafter received during the existence of the stay by reason of in-transit grain inspection charges, specifying by whom and in whose behalf such amounts are paid; and
(b) in the event the order suspending the charges is affirmed by this Court, refund (with interest) of such amounts to persons in whose behalf such amounts were paid, without the necessity for such persons to make applications for refunds. In the event this Court’s action should be other than in affirmance of the results reached by the District Court, this Court may make such further order concerning the disposition of the aforesaid amounts as the Court may deem appropriate.


text:
    No. 72-5139.
    Herrmann v. United States.
   C. A. 9th Cir. Petition for writ of certiorari dismissed August 28, 1972, under Rule 60 of the Rules of this Court.


text:
    No. 72-5051.
    Bethea et al. v. United States.
   C. A. 4th Cir. Petition for writ of certiorari dismissed as to petitioner Brunson, August 30, 1972, under Rule 60 of the Rules of this Court.


text:
    No. 71-771.
    Lazard Freres & Co. et al. v. Rosenfeld et al.
   C. A. 2d Cir. Petition for writ of cer-tiorari dismissed September 1, 1972, under Rule 60 of the Rules of this Court.


text:
    No. 71-6747.
    In re Knight.
   C. A. 1st Cir. Petition for writ of certiorari dismissed September 1, 1972, under Rule 60 of the Rules of this Court.


text:
    No. 71-553.
    Thornton et al. v. Prichard et al.
   Appeal from D. C. E. D. Va. dismissed September 18, 1972, under Rule 60 of the Rules of this Court. [Probable jurisdiction noted, 405 U. S. 1063.]


text:
    No. 72-5092.
    Harvell v. United States.
   C. A. 7th Cir. Petition for writ of certiorari dismissed September 18, 1972, under Rule 60 of the Rules of this Court.


text:
    October 3, 1972
    No. A-362.
    Bridge v. New Jersey.
   Super. Ct. N. J. Application for stay presented to Mr. Justice Douglas, and by him referred to the Court, denied.

Mr. Justice Douglas would grant stay.


author: Mr. Justice Douglas,

text:
    October 5, 1972
    No. A-325.
    American Party of Texas et al. v. Bullock, Secretary of State of Texas.
   D. C. W. D. Tex. Application for temporary restraining order, presented to Mr. Justice Douglas and by him referred to the Court, denied.

Mr. Justice Douglas,

dissenting.

The American Party, seeking to get on the Texas ballot for this year’s election, brought an action which asked a three-judge federal court to hold provisions of the Texas election laws unconstitutional.

Texas has four methods of nominating candidates.

First, those whose party’s gubernatorial candidate polled more than 200,000 votes in the last general election may be nominated through primaries. Election Code, Art. 13.02 (1967). Second, those whose party’s candidates polled less than 200,000 votes but more than 2% of the total votes cast for governor may be nominated by primaries or by nominating conventions. Election Code, Art. 13.45 subd. 1 (Supp. 1972). Third, those whose party’s candidates polled less than 2% of the total gubernatorial vote and those whose party did not have a nominee for governor in the last general election may be nominated by convention only or by fulfilling the requirements of Art. 13.45 subd. 2 of the Election Code (Supp. 1972). Fourth, nonpartisan and independent candidates may appear on the ballot after meeting the requirements of Art. 13.50 of the Election Code.

The American Party falls in the third category. In order to get its nominees printed on the ballot it must meet the following requirements:

It must by the previous September declare its intention to nominate by convention. That entails a statewide party organization with an executive committee. It also requires the filing with the Secretary of State by February of the names of the candidates; it requires the filing of party rules by March. It requires the holding of precinct conventions on the day of the primary and the holding of county conventions the following week and a state convention on a day certain.

The American Party must in addition do the following:

(1) It must furnish a list of participants in each precinct convention with the names, addresses, and registration certificate numbers of qualified voters attending such conventions. The names on the list must total at least 1 % of the total votes cast for governor at the last preceding general election.

(2) If the number of qualified voters attending the precinct conventions is less than 1%, there must be filed a petition requesting that the names of the nominees be printed on the election ballot, signed by a sufficient number of additional qualified voters to make a combined total of at least 1% of the total votes cast for governor in the last election.

(3) No person who during the voting year voted at any primary election or participated in any convention of any other party may attend the minority party convention or sign the petition. If he does, he is subject to criminal penalties.

(4) The petition may not be circulated until after the date set for the holding of the major parties’ primaries. Signatures must be certified before 20 days after the date of the party’s convention, which in 1972 gave it approximately 53 days to gather signatures.

(5) Each person who signs a petition must be administered an oath before a notary public at the time he signs.

This election scheme is not as severe or oppressive as the one we condemned in Williams v. Rhodes, 393 U. S. 23; nor is it as benign as the one we approved in Jenness v. Forison, 403 U. S. 431.

While Texas requires only 1% of the voters for governor to endorse the new party, that requirement must be met by obtaining signatures of those attending precinct conventions, supplemented, if need be, by signatures obtained after the primaries. But all cross-over signing is barred and it is supported by criminal sanctions. Moreover, the supplemental signatures can be obtained only after the major parties have held their primaries. And only a 55-day period is available for obtaining the necessary signatures.

While the requirement of 1% of the total vote for governor may be less than Georgia’s requirement of 5% of those eligible to vote in the last election for the filling of the office the candidate is seeking, the Texas machinery for launching a minority party is almost as cumbersome and involved as the one we struck down in Williams v. Rhodes.

The minority party must be statewide even though its appeal may be essentially to urban voters or to rural voters, as the case may be. That requirement did not appear in Georgia’s scheme.

In Georgia 180 days was allowed for circulating a nominating petition; in Texas, less than 60 days.

In Georgia the minority party had to meet the same deadline as did candidates running in the primaries of the regular parties. In Texas the regular parties first have their primaries; only then can a minority party solicit signatures for its candidates. Moreover, no one who voted in a primary is eligible to sign the petition for the minority party.

The minority party therefore must draw its support from the ranks of those who were either unwilling or unable to vote in the primaries of the established parties.

The minority party therefore cannot compete with the regular parties; it must be content with the leftovers to get on the ballot.

We said in Jenness v. Fortson, supra, at 438, “Georgia’s election laws, unlike Ohio’s, do not operate to freeze the status quo.” Texas, though not as severe as Ohio, works in that direction. It therefore seems to me, at least prima facie, to impose an invidious discrimination on the unorthodox political group.

Perhaps full argument would dispel these doubts. But they are so strong that I would grant the requested stay so that candidates for the American Party may get on the Texas ballot for next month’s presidential election. To do so it must be certified by the Secretary of State no later than October 6. We cannot possibly decide the merits by that date. But if the American Party is on the ballot, the voting and associational rights which we have been alert to protect will be honored; and if meanwhile the merits are reached and we affirm the three-judge court, holding the Texas scheme constitutional, the ballots will not be counted. That was the way Justice Black avoided the dilemma in a Florida case; and I would follow his course here.

      See Davis v. Adams, 400 U. S. 1203.


text:
    No. A-370.
    Whitcomb, Governor of Indiana, et al. v. Communist Party of Indiana et al.
   D. C. N. D. Ind. Motion of applicants for emergency stay presented to Mr. Justice Rehnquist, and by him referred to the Court, denied as moot. Cross motion of Communist Party of Indiana et al. to petition for mandate to enforce prior order of United States District Court also denied.

Mr. Justice Douglas would treat motion of Communist Party of Indiana et al. as jurisdictional statement and postpone question of jurisdiction to hearing of case on the merits.


text:
    October 6, 1972
    No. A-374.
    Pattani et al. v. Meyers et al.
   C. A. 3d Cir. Application for temporary restraining order presented to Mr. Justice Brennan, and by him referred to the Court, denied.


text:
    October 10, 1972
    No. 71-1235.
    Craig, Commissioner of Social Services, et al. v. Gilliard et al.
   Appeal from D. C. W. D. N. C. Motion to dispense with printing motion to affirm granted. Judgment affirmed.


text:
    No. 71-1363.
    No. 71-1364.
    Davis et al. v. Cinema Classics, Ltd., Inc., et al.; and Busch, District Attorney of Los Angeles County, et al. v. Cinema Classics, Ltd., Inc., et al.
   Affirmed on appeals from D. C. C. D. Cal.

Mr. Justice Stewart would note probable jurisdiction and set cases for oral argument.

Reported below: 339 F. Supp. 43.


text:
    No. 71-1416.
    Holshouser v. Scott, Governor of North Carolina, et al.
   Affirmed on appeal from D. C. M. D. N. C.


text:
    No. 71-1560.
    Texas Board of Barber Examiners et al. v. Bolton et al.
   Affirmed on appeal from D. C. N. D. Tex.


text:
    No. 71-1399.
    No. 71-1404.
    No. 71-1407.
    Interstate Commerce Commission v. Gold Kist, Inc., et al.; Refrigerated Transport Co., Inc. v. Gold Kist, Inc., et al.; and American Trucking Assns., Inc. v. Gold Kist, Inc., et al.
   Affirmed on appeals from D. C. N. D. Ga.

Mr. Justice Stewart and Mr. Justice Blackmun would note probable jurisdiction and set cases for oral argument.

Reported below: 339 F. Supp. 1249.


text:
    No. 71-1676.
    Archer et al. v. Smith, Governor of Texas, et al.
   Affirmed on appeal from D. C. W. D. Tex.


text:
    No. 71-1683.
    Washington State Labor Council, AFL-CIO, et al. v. Prince et al.
   Affirmed on appeal from D. C. W. D. Wash.


text:
    No. 72-45.
    National Association of Letter Carriers, AFL-CIO, et al. v. National Alliance of Postal & Federal Employees et al.
   Affirmed on appeal from D. C. D. C.


text:
    No. 71-1592.
    Auerbach et al. v. Mandel, Governor of Maryland, et al.
   Appeal from D. C. Md. Renewed motion to expedite denied. Judgments affirmed.


text:
    No. 71-1664.
    Essex, Superintendent of Public Instruction, et al. v. Wolman et al.
   Affirmed on appeal from D. C. S. D. Ohio.

Mr. Justice White would note probable jurisdiction and set case for oral argument.


text:
    No. 71-6791.
    Briscoe v. Kleindienst, Attorney General, et al.
   Affirmed on appeal from D. C. D. C.

Mr. Justice Douglas and Mr. Justice Brennan would note probable jurisdiction and set case for oral argument.


text:
    No. 71-6902.
    Moore et al. v. Haugh, Warden, et al.
   Affirmed on appeal from D. C. N. D. Iowa.

Mr. Justice Douglas would note probable jurisdiction and set case for oral argument.


text:
    No. 72-46.
    Ute Mountain Tribe of Indians v. Navajo Tribe of Indians.
   Affirmed on appeal from D. C. N. M.

Mr. Justice Douglas would note probable jurisdiction and set case for oral argument.


text:
    No. 72-36.
    Williams v. Democratic Party of Georgia et al.
   Appeal from D. C. N. D. Ga. Motions to dispense with printing jurisdictional statement and motion to dismiss or affirm granted. Judgment affirmed.

Mr. Justice Douglas would dismiss appeal as moot. Mr. Justice Brennan and Mr. Justice Marshall would note probable jurisdiction and set case for oral argument.


text:
    No. 72-83.
    Sterrett et al. v. Mothers’ & Children’s Rights Organization et al.
   Appeal from D. C. N. D. Ind. Motion of appellees for leave to proceed in forma, pauperis granted. Judgment affirmed.


text:
    No. 72-114.
    Gaunt et al. v. Brown, Secretary of State of Ohio, et al.
   Appeal from D. C. S. D. Ohio. Motion to dispense with printing jurisdictional statement granted. Judgment affirmed.


text:
    No. 70-5083.
    Newman v. Newman.
   Appeal from Sup. Ct. La. Motion for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for further consideration in light of Boddie v. Connecticut, 401 U. S. 371 (1971).


text:
    No. 71-1027.
    Baker et al. v. Nelson.
   Appeal from Sup. Ct. Minn, dismissed for want of substantial federal question.


text:
    No. 71-1132.
    Mayor of Baltimore et al. v. Silver et ux.
   Appeal from Ct. App. Md. dismissed for want of substantial federal question.


text:
    No. 71-1445.
    Specter, District Attorney of Philadelphia County v. Tucker, Secretary of the Commonwealth, et al.
   Appeal from Sup. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 71-1530.
    Retza v. Fortune.
   Appeal from Ct. App. Ohio, Cuyahoga County, dismissed for want of substantial federal question.


text:
    No. 71-1681.
    Surety Savings & Loan Assn. v. Wisconsin Department of Transportation, Division of Highways.
   Appeal from Sup. Ct. Wis. dismissed for want of substantial federal question.


text:
    No. 72-61.
    Snohomish County Board of Equalization et al. v. Washington State Department of Revenue et al.
   Appeal from Sup. Ct. Wash, dismissed for want of substantial federal question.


text:
    No. 72-88.
    Mesa Verde Co. v. Board of County Commissioners of Montezuma County et al.
   Appeal from Sup. Ct. Colo, dismissed for want of substantial federal question.


text:
    No. 72-91.
    Davis v. New York.
   Appeal from App. Term, Sup. Ct. N. Y., 1st Jud. Dept., dismissed for want of substantial federal question.


text:
    No. 72-5065.
    Crawford v. Missouri.
   Appeal from Sup. Ct. Mo. dismissed for want of substantial federal question.


text:
    No. 71-1109.
    No. 71-1439.
    Norris et al. v. Jordan et al.; and Norris et al. v. Jordan et al.
   Appeals from D. C. N. D. Ohio. Motion to defer consideration denied. Appeals dismissed for want of jurisdiction.


text:
    No. 71-1186.
    Fry’s Food Stores, Inc., et al. v. California.
   Appeal from Sup. Ct. Cal. dismissed.


text:
    No. 71-1233.
    No. 71-6422.
    Bridgeforth v. Illinois; and Davis v. Illinois.
   Appeals from Sup. Ct. Ill. Motions to dispense with printing jurisdictional statement and to dismiss in No. 71-1233 granted. Motion to supplement jurisdictional statement in No. 71-6422 granted. Appeals dismissed for want of substantial federal question. Mr. Justice Douglas would note probable jurisdiction and set cases for oral argument. Reported below: 51 Ill. 2d 52, 281 N. E. 2d 617.


text:
    No. 71-1402.
    Coleman v. Louisiana.
   Appeal from Sup. Ct. La. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 71-1616.
    Ronwin v. Fair Employment Practices Commission (Fresno State College, Real Party in Interest).
   Appeal from Ct. App. Cal., 5th App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 71-6423.
    House v. House.
   Appeal from C. A. 4th 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. 71-6568.
    Clark v. Delaware.
   Appeal from Sup. Ct. Del. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 71-6624.
    Tillman v. Maryland.
   Appeal from Ct. Sp. App. Md. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 71-6643.
    Picking v. Yates et al.
   Appeal from Ct. App. Md. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 71-6668.
    Nieder v. Mercury Federal Savings & Loan Assn.
   Appeal from Sup. Ct. N. J. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 72-133.
    Bernstein et al. v. Nationwide Mutual Insurance Co.
   Appeal from C. A. 4th 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. 71-6264.
    Anderson v. Municipal Court, San Diego Judicial District, et al.
   Appeal from D. C. S. D. Cal. dismissed for want of jurisdiction.


text:
    No. 72-5107.
    Dawley v. County of Sacramento.
   Appeal from Ct. App. Cal., 3d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 71-1482.
    Fleming et al. v. Boston Safe Deposit & Trust Co. et al.
   Appeal from Sup. Jud. Ct. Mass, dismissed for want of substantial federal question.

Mr. Justice Douglas would note probable jurisdiction and set case for oral argument.


text:
    No. 71-1651.
    Newbern, Executrix, et al. v. Alabama.
   Appeal from Ct. Civ. App. Ala. dismissed for want of substantial federal question.

Mr. Justice Douglas would note probable jurisdiction and set case for oral argument.


text:
    No. 71-6520.
    Jack et al. v. California.
   Appeal from App. Dept., Super. Ct. Cal., County of Santa Clara, dismissed for want of substantial federal question.

Mr. Justice Douglas would note probable jurisdiction and set case for oral argument.


text:
    No. 72-5070.
    Kelley v. Iowa Department of Social Services.
   Appeal from Sup. Ct. Iowa dismissed for want of substantial federal question.

Mr. Justice Douglas would note probable jurisdiction and set case for oral argument.


text:
    No. 72-20.
    Motteler, Administratrix v. J. A. Jones Construction Co.
   Appeal from C. A. 7th Cir. 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 would note probable jurisdiction and set case for oral argument.


text:
    No. 72-92.
    Butcher et al. v. Township of Grosse Ile et al.
   Appeal from Sup. Ct. Mich, dismissed for want of substantial federal question.

Mr. Justice Stewart would dismiss appeal for want of a properly-presented federal question.


text:
    No. 72-5080.
    Bunch v. City of Cincinnati.
   Appeal from Sup. Ct. Ohio dismissed for want of substantial federal question.

Mr. Justice Douglas and Mr. Justice Marshall would note probable jurisdiction and set case for oral argument.


text:
    No. 72-5133.
    Buchanan v. Texas.
   Appeal from Ct. Crim. App. Tex. dismissed for want of substantial federal question.

Mr. Justice Brennan and Mr. Justice Blackmun would note probable jurisdiction and set case for oral argument.


text:
    No. 71-1302.
    Superintendent of Field Unit No. 9 v. Terry.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Colten v. Kentucky, 407 U. S. 104.


text:
    No. 71-1548.
    In re Leary.
   Super. Ct. Div., Gen. Ct. of Justice, County of Wake, N. C. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Jackson v. Indiana, 406 U. S. 715.

Mr. Justice Douglas dissents from vacating and remanding this case.


text:
    No. 71-6773.
    Duncan v. United States.
   C. A. 9th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Gelbard v. United States, 408 U. S. 41.


text:
    No. 71-6460.
    Gause v. Arizona.
   Sup. Ct. Ariz. Motion for leave to proceed in forma pauperis and certi-orari granted. Judgment vacated and case remanded for further consideration in light of Stewart v. Massachusetts, 408 U. S. 845.


text:
    No. 71-6570.
    Ketola v. United States.
   C. A. 9th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Upon representations of the Solicitor General, set forth in his Memorandum for the United States filed June 16, 1972, judgment vacated and case remanded for further consideration in light of position presently asserted by the Government. Application for bail denied without prejudice to renewal of application to the Court of Appeals.


text:
    No. 72-5009.
    Webb v. United States.
   C. A. 9th Cir. Motion for leave to proceed in forma pauperis and cer-tiorari granted. Judgment vacated and case remanded for further consideration in light of Gelbard v. United States, 408 U. S. 41.


text:
    No. 72-28.
    Northern States Power Co. v. Ihrke et ux.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded with instructions to dismiss case as moot.

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


text:
    No. 72-5110.
    Martinez-Frausto v. United States.
   C. A. 9th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Upon representations of the Solicitor General, set forth in his Memorandum for the United States filed September 6, 1972, judgment vacated and case remanded for further consideration in light of the position presently asserted by the Government.


text:
    No. 72-34.
    O'Brien et al. v. Brown et al.
   C. A. D. C. Cir. Motions to dispense with printing petition and respondents’ brief granted. Certiorari granted, judgment vacated, and case remanded with directions to dismiss case as moot.


text:
    No. 72-35.
    Keane et al. v. National Democratic Party et al.
   C. A. D. C. Cir. Motions to dispense with printing petition and respondents’ brief granted. Certiorari granted, judgment vacated, and case remanded to determine whether case has become moot.


text:
    No. A-1165,
    October Term, 1971.
    In re Disbarment of Morton.
   It having been reported to this Court that William M. Morton, Jr., of St. Joseph, Missouri, has been disbarred from the practice of law in all of the courts of the State of Missouri, and this Court by order of May 15, 1972 [406 U. S. 914], having suspended the said William M. Morton, Jr., from the practice of law in this Court and directed that a rule issue requiring him to show cause why he should not be disbarred;

And it appearing that the said rule was duly issued and served upon the respondent and that the time within which to file a return has expired;

It is ordered that the said William M. Morton, Jr., be, and he is hereby, disbarred from the practice of law in this Court and that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court.


text:
    No. 36,
    Orig.
    Texas v. Louisiana.
   Exceptions to Report of Special Master set for oral argument in due course. [For earlier orders herein, see, e. g., 406 U. S. 941.]


text:
    No. A-271.
    Non-Resident Taxpayers Association of Pennsylvania and New Jersey et al. v. Murray, Sheriff, et al.
   D. C. E. D. Pa. Application for injunction presented to Mr. Justice Douglas, and by him referred to the Court, denied.

Mr. Justice Douglas would grant the application.


text:
    No. 56,
    Orig.
    Virginia v. International Air Transport Assn. et al.
   Motion of Metropolitan Washington Board of Trade for leave to file a brief as amicus curiae granted. Motion for leave to file bill of complaint denied. Washington v. General Motors Corp., 406 U. S. 109.

Mr. Justice Powell took no part in the consideration or decision of these motions.


text:
    No. 70-18.
    No. 70-40.
    Roe et al. v. Wade, District Attorney of Dallas County. Doe et al. v. Bolton, Attorney General of Georgia, et al.
   Appeal from D. C. N. D. Tex.; and

Appeal from D. C. N. D. Ga. [Restored to calendar, 408 U. S. 919.] Motion of California Committee to Legalize Abortion et al. for leave to file a brief as amici curiae granted.


text:
    No. 70-106.
    Heffernan, Guardian v. Doe et al.
   Appeal from D. C. N. D. Ill. Motion of appellant to consolidate with No. 70-18 [Roe v. Wade~\ and No. 70-40 [Doe v. Bolton] for oral argument denied.


text:
    No. 71-485.
    Gottschalk, Acting Commissioner of Patents v. Benson et al.
   C. C. P. A. [Certiorari granted, 405 U. S. 915.] Motion of Association of Data Processing Service Organizations, Software Products and Service Section, for leave to participate in oral argument as amicus curiae denied.

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


text:
    No. 71-36.
    California et al. v. LaRue et al.
   Appeal from D. C. D. C. Cal. [Probable jurisdiction noted, 404 U. S. 999.] Motion to permit two counsel to argue on behalf of appellees granted.


text:
    No. 71-123.
    No. 71-198.
    National Labor Relations Board v. Burns International Security Services, Inc., et al.; and Burns International Security Services, Inc. v. National Labor Relations Board et al.,
   406 U. S. 272. Motion to recall judgment denied.


text:
    No. 71-366.
    Tidewater Oil Co. v. United States et al.
   C. A. 9th Cir. [Certiorari granted, 405 U. S. 986.] Motion of the Solicitor General to permit A. Raymond Randolph, Jr., to argue orally pro hac vice on behalf of the United States granted.


text:
    No. 71-507.
    Keyes et al. v. School District No. 1, Denver, Colorado, et al.
   C. A. 10th Cir. [Certiorari granted, 404 U. S. 1036.] Joint motion for additional time for oral argument granted and 15 minutes allotted for that purpose to each side.

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


text:
    No. 71-575.
    Gomez v. Perez.
   Appeal from Ct. Civ. App. Tex., 4th Sup. Jud. Dist. [Probable jurisdiction noted, 408 U. S. 920.] Motion of appellant to dispense with printing appendix and to proceed on original record granted. Motion of American Civil Liberties Union for leave to file a brief as amicus curiae granted.


text:
    No. 71-666.
    United States v. Glaxo Group Ltd. et al.
   Appeal from D. C. D. C. [Probable jurisdiction noted, 405 U. S. 914.] Motion of appellant for additional time for oral argument granted and 15 minutes allotted for that purpose. Appellees also allotted 15 additional minutes for oral argument.


text:
    No. 71-651.
    California v. Krivda et al.
   Sup. Ct. Cal. [Certiorari granted, 405 U. S. 1039.] Motion to permit showing of motion picture during oral argument, to permit two counsel to argue orally, and for additional time for oral argument denied. Motion of National Legal Aid & Defender Assn, for leave to dispense with printing amicus curiae brief granted.


text:
    No. 71-685.
    No. 71-691.
    Lehnhausen, Director, Department of Local Government Affairs of Illinois v. Lake Shore Auto Parts Co. et al.; and Barrett, County Clerk of Cook County, Illinois, et al. v. Shapiro et al.
   Sup. Ct. Ill. .[Certiorari granted, 405 U. S. 1039.] Motion of American National Bank & Trust Co. of Chicago et al., as members of Corporate Fiduciaries Assn. of Illinois, for leave to file a brief as amici curiae granted. Motion of Proviso Township High School District #209 et al. for leave to file a brief as amici curiae granted, but motion to participate in oral argument as amici curiae denied. Motion of Charles Marshall, State’s Attorney, County of DeKalb, Illinois, for leave to intervene in No. 71-685 denied.


text:
    No. 71-829.
    Mourning v. Family Publications Service, Inc.
   C. A. 5th Cir. [Certiorari granted, 405 U. S. 987.] Motion of National Consumer Law Center, Inc., for leave to dispense with printing amicus curiae brief granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae in support of petitioner granted and 15 minutes allotted for that purpose. Respondent also allotted 15 additional minutes for oral argument.


text:
    No. 71-1182.
    Mattz v. Arnett, Director, Department of Fish and Game.
   Ct. App. Cal., 1st App. Dist. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 71-834.
    McClanahan v. Arizona Tax Commission.
   Appeal from Ct. App. Ariz. [Probable jurisdiction noted, 406 U. S. 916.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae in support of appellants granted and 16 minutes allotted for that purpose. Appellee allotted 15 additional minutes for oral argument.


text:
    No. 71-863.
    No. 71-864.
    No. 71-865.
    No. 71-866.
    Columbia Broadcasting System, Inc. v. Democratic National Committee; Federal Communications Commission et al. v. Business Executives' Move for Vietnam Peace et al.; Post-Newsweek Stations, Capital Area, Inc. v. Business Executives’ Move for Vietnam Peace; and American Broadcasting Cos., Inc. v. Democratic National Committee.
   C. A. D. C. Cir. [Certiorari granted, 405 U. S. 953.] Motion of Columbia Broadcasting System, Inc., and Post-Newsweek Stations, Capital Area, Inc., for additional time for oral argument granted and 7% minutes allotted to petitioners for that purpose. Respondents also alloted 7% additional minutes for oral argument.


text:
    No. 71-991.
    Otter Tail Power Co. v. United States.
   Appeal from D. C. Minn. [Probable jurisdiction noted, 406 U. S. 944.] Motion of appellant for additional time for oral argument denied. Motion of Federal Power Commission for leave to participate in oral argument as amicus curiae denied.

Mr. Justice Blackmun and Mr. Justice Powell took no part in the consideration or decision of these motions.


text:
    No. 71-1672.
    Guthrie et al. v. Alabama By-Products Co. et al.
   C. A. 5th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 71-1021.
    Employees of the Department of Public Health and Welfare of Missouri et al. v. Department of Public Health and Welfare of Missouri et al.
   C. A. 8th Cir. LCertiorari granted, 405 U. S. 1016.] The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 71-1031.
    Tonasket v. Washington et al.
   Appeal from Sup. Ct. Wash. [Probable jurisdiction noted, 407 U. S. 908.] Motion of appellant for additional time for oral argument denied.


text:
    No. 71-1119.
    Indiana Employment Security Division et al. v. Burney.
   Appeal from D. C. N. D. Ind. [Probable jurisdiction noted, 406 U. S. 956.] Motion of College-University Corporation of Indianapolis, Indiana, et al. for leave to file a brief as amici curiae granted. Motion of California Department of Human Resources Development for leave to argue orally as amicus curiae denied.


text:
    No. 71-1136.
    Tillman et al. v. Wheaton-Haven Recreation Assn., Inc., et al.
   C. A. 4th Cir. [Cer-tiorari granted, 406 U. S. 916.] Motion of Montgomery County, Maryland, for leave to participate in oral argument as amicus curiae denied.


text:
    No. 71-1192.
    Goldstein et al. v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. [Cer-tiorari granted, 406 U. S. 956.] Motion of Custom Recording Co., Inc., et al. for leave to file a brief as amici curiae granted.


text:
    No. 72-434.
    Byrn, Guardian v. New York City Health & Hospitals Corp. et al.
   Appeal from Ct. App. N. Y. Motion of appellant to expedite consideration denied.


text:
    No. 71-1332.
    San Antonio Independent School District et al. v. Rodriguez et al.
   Appeal from D. C. W. D. Tex. [Probable jurisdiction noted, 406 U. S. 966.] Motions of John Serrano, Jr., et al.; American Civil Liberties Union et al.; Wilson Riles, Superintendent of Public Instruction of California, et al.; NAACP Legal Defense Fund et al.; Mayor of Baltimore et al.; National Education Assn, et al.; Houston L. Flournoy, Controller of California; and Wendell Anderson, Governor of Minnesota, et al., for leave to file briefs as amici curiae granted. Motions of John Serrano, Jr., et al. and Wendell Anderson, Governor of Minnesota, et al. for leave to participate in oral argument as amici curiae denied.


text:
    No. 71-1586.
    Wood v. Goodson, Judge.
   Cir. Ct. Ark., Miller County. Motion to defer consideration of petition for writ of certiorari granted.


text:
    No. 71-6278.
    Almeida-Sanchez v. United States.
   C. A. 9th Cir. [Certiorari granted, 406 U. S. 944.] Motion of Luke McKissack for leave to file a brief as amicus curiae granted.


text:
    No. 71-6516.
    Braden v. 30th Judicial Circuit Court of Kentucky.
   C. A. 6th Cir. [Certiorari granted, 407 U. S. 909.] Motion of M. Curran Clem, Esquire, to permit John M. Famularo, Esquire, to argue pro hac vice on behalf of respondent granted. Motion of American Civil Liberties Union for leave to file a brief as amicus curiae granted.


text:
    No. 71-1531.
    Nolan v. Judicial Council of the Third Circuit of the United States et al.
   Motion for leave to file petition for writ of prohibition and/or mandamus denied.

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


text:
    No. 72-190.
    Smith et al. v. Board of Education, Independent School District No. 1, Tulsa County, Oklahoma, et al.
   C. A. 10th Cir. Motion to advance denied.


text:
    No. 72-482.
    Marchetti v. United States.
   C. A. 4th Cir. Motion of petitioner to expedite consideration denied.


text:
    No. A-320 (72-521).
    Irish Northern Aid Committee v. Attorney General of the United States.
   C. A. 2d Cir. Application for stay presented to Mr. Justice Marshall, and by him referred to the Court, granted. Should petition for writ of certiorari be denied, stay is to terminate automatically. Should petition for writ of certiorari be granted, stay is to remain in effect pending the sending down of the judgment of this Court.


text:
    No. 71-6603.
    No. 72-5054.
    House v. Smith, Warden; and Gibson v. Wainwright, Corrections Director.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 71-6564.
    No. 72-5034.
    No. 72-5035.
    Newell v. Bohanon, U. S. District Judge; Doyle v. United States District Court for the District of Minnesota et al.; and Bey v. United States Court of Appeals for the Third Circuit.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 71-1655.
    Falkner v. Supreme Court of Florida et al.
   Motion to dispense with printing petition granted. Motion for leave to file petition for writ of prohibition and/or mandamus denied.


text:
    No. 71-6510.
    Levy et al. v. United States Court of Appeals for the Fifth Circuit et al.
   Motion for leave to file petition for writ of prohibition and/or mandamus denied.