author: Mr. Justice Stewart, Circuit Justice.

text:
    DAYTON BOARD OF EDUCATION v. BRINKMAN et al.
    No. A-212.
    Decided August 28, 1978
   Mr. Justice Stewart, Circuit Justice.

The Dayton, Ohio, Board of Education requests that I stay execution of the judgment and mandate of the Court of Appeals for the Sixth Circuit in this case pending consideration by this Court of the Board’s petition for certiorari. The judgment reversed the dismissal by the District Court of the plaintiffs’ school desegregation suit, and ordered the extensive desegregation plan continued.

The applicant urges that this case be stayed because it raises many of the issues presented by Columbus Board of Education v. Penick, ante, p. 1348. Mr. Justice Rehnquist stayed the mandate of the Sixth Circuit in that case on August 11, 1978. A crucial distinction between these cases leads me to believe that this application should be denied. Columbus had never been the subject of a school desegregation remedy; the Dayton system, by contrast, will enter its third year under the current plan on September 7. In Columbus the status quo was preserved by granting a stay; here it can be preserved only by denying one. To avoid disrupting the school system during our consideration of the case, the stay should be denied. This disposition, of course, does not reflect any view on the merits of the issues presented.

The application for a stay of the judgment and mandate of the Court of Appeals for the Sixth Circuit is denied.


source: Caselaw Access Project

author: Mr. Justice Rehnquist.

license: Public Domain

text:
    DAYTON BOARD OF EDUCATION v. BRINKMAN et al.
    No. A-212.
    Decided August 30, 1978
   Mr. Justice Rehnquist.

The applicant, Dayton Board of Education, has presented to me an application for stay of the judgment and mandate of the Court of Appeals for the Sixth Circuit, which has been denied by Mr. Justice Stewart. In his in-chambers opinion Mr. Justice Stewart stated:

“The applicant urges that this case be stayed because it raises many of the issues presented by Columbus Board of Education v. Penick, ante, p. 1348. Mr. Justice Rehnquist stayed the mandate of the Sixth Circuit in that case on August 11, 1978. A crucial distinction between these cases leads me to believe that this application should be denied. Columbus had never been the subject of a school desegregation remedy; the Dayton system, by contrast, will enter its third year under the current plan on September 7. In Columbus the status quo was preserved by granting a stay; here it can be preserved only by denying one. To avoid disrupting the school system during our consideration of the case, the stay should be denied. This disposition, of course, does not reflect any view on the merits of the issues presented.” Ante, at 1357.

I am in complete agreement with Mr. Justice Stewart that there is a difference between the status quo in the Dayton school system and that in the Columbus school system. Since the maintenance of the status quo is an important consideration in granting a stay, I agree with Mr. Justice Stewart that the application for a stay should be denied.


author: Mr. Justice Brennan, Circuit Justice.

text:
    BUCHANAN et al. v. EVANS et al.
    No. A-188.
    Decided September 1, 1978
   Mr. Justice Brennan, Circuit Justice.

The Delaware State Board of Education and eight intervening defendant suburban school districts request that I stay execution of the judgment and mandate of the Court of Appeals for the Third Circuit in this case pending consideration by this Court of their petition for certiorari. The judgment affirmed an order of the District Court for the District of Delaware prescribing a school desegregation plan involving the city of Wilmington and 11 surrounding suburban school districts.

In deciding whether to grant a stay pending disposition of a petition for certiorari, I must consider two factors.

“First, ‘a Circuit Justice should “balance the equities” . . . and determine on which side the risk of irreparable injury weighs most heavily.’ Holtzman v. Schlesinger, 414 U. S. 1304, 1308-1309 (1973) (Marshall, J., in chambers). Second, assuming a balance of equities in favor of the applicant, the Circuit Justice must also determine whether ‘it is likely that four Members of this Court would vote to grant a writ of certiorari.’ Id., at 1310. The burden of persuasion as to both of these issues rests on the applicant . . . .” Beame v. Friends of the Earth, 434 U. S. 1310, 1312 (1977) (Marshall, J., in chambers).

That burden is “particularly heavy,” ibid., when, as here, a stay has been denied both by the District Court and unanimously by the Court of Appeals sitting en banc.

The thrust of applicants’ position is that the desegregation plan ordered by the District Court and approved by the Court of Appeals is administratively and financially onerous, and that it is inconsistent with the precepts enunciated in Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977). Dayton vacated the order of a Court of Appeals which had “imposed a remedy . . . entirely out of proportion to the constitutional violations found by the District Court. . . Id., at 418. The District Court had found only “three separate . . . relatively isolated instances of unconstitutional action on the part of petitioners,” id., at 413, but the Court of Appeals had nevertheless ordered a systemwide remedy. Dayton invoked the familiar “rule laid down in Swann, and elaborated upon in Hills v. Oautreaux, 425 U. S. 284 (1976),” that “‘[o]nce a constitutional violation is found, a federal court is required to tailor “the scope of the remedy” to fit “the nature and extent of the constitutional violation.” 418 U. S., at 744; Swann [v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. ], at 16.’ [Hills v. Gautreaux, 425 U. S.,] at 293-294.” Id., at 419-420. Applying this rule, Dayton required the District Court on remand to determine the “incremental segregative effect [constitutional] violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy. Keyes, 413 U. S., at 213.” Id., at 420.

The facts of Dayton are fundamentally different from the circumstances presented by this application. Segregation in Delaware, unlike that in Ohio, was mandated by law until 1954. In the instant case the District Court found that “at that time . . . Wilmington and suburban districts were not meaningfully 'separate and autonomous’ ” because “de jure segregation in New Castle County was a cooperative venture involving both city and suburbs.” 393 F. Supp. 428, 437 (1975). So far from finding only isolated examples of unconstitutional action, the District Court in this case concluded “that segregated schooling in Wilmington has never been eliminated and that there still exists a dual school system.” 379 F. Supp. 1218, 1223 (1974). The District Court found that this dual school system has been perpetuated through constitutional violations of an interdistrict nature, necessitating for their rectification an interdistrict remedy. See 393 F. Supp. 428 (1975). See also 416 F. Supp. 328, 338-341 (1976). The District Court’s finding of these inter-district violations was summarily affirmed by this Court, 423 U. S. 963 (1975), and it thus constitutes the law of the case for purposes of this stay application. Unlike the situation in Dayton, therefore, the record before the Court of Appeals in the instant case was replete with findings justifying, if not requiring, the extensive interdistrict remedy ordered by the District Court.

Applicants argue, however, that the order of the District Court violates the principles of Dayton because no findings were made as to “incremental segregative effect.” But even assuming that such an analysis were appropriate when, as here, there is an explicit finding that a de jure school system has never been dismantled, the remedy of the District Court was consciously fashioned to implement the familiar rule of Swann and Gautreaux that equitable relief should be tailored to fit the violation. “Our duty,” stated the District Court in 1976, “is to order a remedy which will place the victims of the violation in substantially the position which they would have occupied had the violation not occurred.” 416 F. Supp., at 341. And, as the District Court most recently stated: The Court of Appeals accepted the principles of this analysis, and approved their application by the District Court. See Application for Stay, Exhibit B, p. 22; 555 F. 2d 373, 379-380 (CA3 1977). In these circumstances, I find no violation of the principles of Dayton sufficient to justify the conclusion that four Justices of this Court would vote to grant certiorari.

“[T]he firmly established constitutional violations in this case are the perpetuation of a dual school system and the vestige effects of pervasive de jure inter-district segregation. Evans v. Buchanan, 416 F. Supp. at 343; 393 F. Supp. at 432-438, 445, 447. Dayton reaffirms that ‘[o]nce a constitutional violation is found, a federal court is required to tailor “the scope of the remedy” to fit “the nature and extent of the constitutional violation.” ’ [433 U. S. at 420]; see Milliken [v. Bradley], 418 U. S. [717,] 744; Swann, 402 U. S. at 16. . . . Eradication of the constitutional violation to the scope and extent enumerated by the three-judge court is all that any of the plans and concepts submitted purport to accomplish, and that is all the concept endorsed by the Court does accomplish.” 447 F. Supp. 982, 1011 (1978) (footnote omitted)

Applicants strenuously urge that irreparable financial and administrative difficulties attend upon the District Court’s order. But both the District Court and the Court of Appeals, sitting en banc, have rejected this contention and concluded that, balancing the equities of this protracted litigation, applicants are not entitled to a stay. The judgments of these Courts are entitled to great deference. See Board of Education of New Rochelle v. Taylor, 82 S. Ct. 10, 11 (1961) (Brennan, J., in chambers). “It is clear that the . . . Court of Appeals gave full consideration to a similar motion and with a much fuller knowledge than we can have, denied it. As we have said, we require very cogent reasons before we will disregard the deliberate action of that court in such a matter.” Magnum Import Co. v. Coty, 262 U. S. 159, 164 (1923).

The “devastating, often irreparable, injury to those children who experience segregation and isolation was noted [24] years ago in Brown v. Board of Education, 347 U. S. 483 (1954).” Jefferson Parish School Board v. Dandridge, 404 U. S. 1219, 1220 (1971) (Marshall, J., in chambers). This case has been in continuous litigation for the past 21 years. As my Brother Marshall stated seven years ago when asked to stay a school desegregation order:

“Whatever progress toward desegregation has been made apparently, and unfortunately, derives only from judicial action initiated by those persons situated as perpetual plaintiffs below. The rights of children to equal educational opportunities are not to be denied, even for a brief time, simply because a school board situates itself so as to make desegregation difficult.” Ibid.

In such circumstances, I cannot conclude that the balance of equities lies in favor of applicants. The application for a stay is accordingly denied.

       Pursuant to the desegregation order of the United States District Court for the District of Delaware these eight suburban school districts, along with three others, were abolished as of July 1, 1978, and replaced by a single unified school district administered by the New Castle County Board of Education. The District Court, however, granted the suburban school districts limited legal status “for the limited purpose of pursuing rights of appeal or judicial review.” 447 F. Supp. 982, 1039 (1978). Applicants do not now request that the order abolishing these school districts be stayed. “The independent school districts having been dissolved effective July 1, 1978, [applicants] believe that any attempt to reconstitute those districts and to operate them separately at this late date would be more disruptive than to permit the single judicial district to operate at least for the current school year.” Application-for Stay 8.

       Applicants request a stay of so much of the District Court’s order as compels mandatory pupil and staff reassignment as well as other forms of ancillary relief. See ibid.; id., Exhibit A, pp. 10-13.

       Applicants also contend that since the District Court’s order entails “the extinction of eleven historic, independent political entities of the State of Delaware,” it “constitutes an unprecedented 'exercise of judicial power which should be reviewed by this Court pursuant to certiorari.” Application for Stay 11. Applicants, however, do not seek to stay that aspect of the District Court’s order that abolishes the 11 school districts; indeed, applicants state that they will not suffer an irreparable injury if this aspect of the order is not presently stayed. See n. 1, supra. Were a grant of certiorari appropriate to this issue, any relief pertinent if applicants were to prevail as to this claim would in my view be distinct from the relief presently requested by applicants. See n. 2, supra. Consideration of this contention is therefore not relevant to my determination as to whether to grant a stay.

       A lineal ancestor of the present case was Gebhart v. Belton, 33 Del. Ch. 144, 91 A. 2d 137 (1952), in which the Delaware Supreme Court ordered the immediate admission of black children to certain schools previously attended only by whites. The case was appealed to this Court and consolidated and decided with Brown v. Board of Education, 347 U. S. 483 (1954). The instant case has been in the federal courts at least since 1957. See 379 F. Supp. 1218, 1220 (Del. 1974); 424 F. Supp. 875, 876 n. 1 (Del. 1976).

       The District Court concluded that an interdistrict remedy would be appropriate, based on its findings that:
      “1) there had been a failure to alter the historic pattern of inter-district segregation in Northern New Castle County;
      “2) governmental authorities at the state and local levels were responsible to a significant degree for increasing the disparity in residential and school populations between Wilmington and the suburbs;
      “3) the City of Wilmington had been unconstitutionally excluded from other school districts by the State Board of Education, pursuant to a withholding of reorganization powers under the Delaware Educational Advancement Act of 1968.” Id,., at 877.
      The court specifically found that “the acts of the State and its subdivisions . . . had a substantial, not a de minimis, effect on the enrollment patterns of the separate districts.” 416 F. Supp. 328, 339 (Del. 1976).

       In Dayton, of course, “mandatory segregation by law of the races in the schools [had] long since ceased . . . .” 433 U. S., at 420.

       Applicants’ strenuous insistence upon such a narrow reading of the phrase “incremental segregative effect” entangles them in a contradiction. Before the District Court they took the position that “ 'it is not “feasible” to determine what the affected school districts and school populations would be today “but for” the constitutional violations found by the three-judge court and affirmed on appeal.’ ” 447 F. Supp., at 1010 n. 123. The end result of applicants’ positions is thus apparently that no equitable remedy would be appropriate.


author: Mr. Justice Rehnquist, Circuit Justice.

text:
    DIVANS v. CALIFORNIA
    No. A-233.
    Decided September 1, 1978
   Mr. Justice Rehnquist, Circuit Justice.

Applicant's motion to stay the proceedings in the Superior Court of Santa Clara County, Cal., is denied.

In July 1977 applicant filed a similar motion for stay pending review in this Court of his claim that the Double Jeopardy Clause of the United States Constitution prohibits the State of California from retrying him for murder. In denying the stay, I noted the California Superior Court’s finding that the error resulting in the court’s mistrial declaration was not intentionally committed by the prosecution for the purpose of provoking applicant’s mistrial request. Divans v. California, 434 U. S. 1303 (1977) (in chambers). During January of last Term, both Mr. Justice Brennan and I denied applicant’s second stay application, in which he alleged that additional facts had come to light which proved that the prosecutor had acted in bad faith at the first trial.

In the instant motion applicant contends that he has acquired still more information demonstrating the prosecutor’s bad faith. Applicant presents, however, only his own assertions to this effect, and none of the moving papers before me contain any findings which contradict the Superior Court’s finding, referred to in my earlier in-chambers opinion, that the prosecutor’s error was not calculated to force applicant to move for a mistrial. On the contrary, repeated summary rejections of applicant’s claim in the California state courts indicate that the Superior Court’s original finding stands undisturbed. Accordingly, I remain convinced that this Court would not grant certiorari to review applicant’s double jeopardy claim.


text:
    GENERAL COUNCIL ON FINANCE & ADMINISTRATION, UNITED METHODIST CHURCH v. CALIFORNIA SUPERIOR COURT, SAN DIEGO COUNTY (BARR et al., REAL PARTIES in INTEREST)
    No. A-200 (78-300).
    Decided September 1, 1978
   Mr. Justice Rehnquist, Circuit Justice.

The General Council on Finance and Administration of the United Methodist Church requests that proceedings in the Superior Court of the State of California for the County of San Diego, in which it is a defendant, be stayed as to it pending this Court’s consideration of its petition for a writ of certiorari. Applicant, an Illinois not-for-profit corporation, is one of six defendants in a class action seeking, inter alia, damages for breach of contract, fraud, and violations of state securities laws arising out of the financial collapse of the Pacific Homes Corp., a California nonprofit corporation that operated 14 retirement homes and convalescent hospitals on the west coast. Barr v. United Methodist Church, No. 404611 (Cal. Super. Ct., San Diego County, Mar. 20, 1978). Respondent real parties in interest (hereafter respondents), some 1,950 present and former residents of the homes, allege that Pacific Homes was the alter ego, agency, or instrumentality of the United Methodist Church (Methodist Church), applicant, and certain other defendants affiliated with the Methodist Church. The judgment at issue is the Superior Court’s denial of applicant’s motion to quash service of process for lack of in personam jurisdiction. That court, in a minute order decision, concluded that applicant was “doing business” in the State of California and, therefore, was subject to the jurisdiction of the California courts. Applicant’s petition for a writ of mandate to review the judgment of the Superior Court was dénied by the Court of Appeal for the Fourth Appellate District in a one-sentence order, and the California Supreme Court summarily denied applicant’s petition for a hearing on the issue. Thereafter, applicant was ordered by the Superior Court to respond to respondents’ complaint on or before August 28, 1978. I granted a temporary stay of the proceedings below to permit consideration of a response to the application. Ante, p. 1355.

Applicant challenges the Superior Court’s order on three grounds. First, citing this Court’s decision in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696 (1976), applicant maintains that the Superior Court violated the First and Fourteenth Amendments in basing its assertion of jurisdiction on respondents’ characterization of applicant’s role in the structure of the Methodist Church and rejecting contrary testimony of church officials and experts and statements set forth in the Book of Discipline, which contains the constitution and bylaws of the Methodist Church. Applicant’s next contention is that use of the “minimum contacts” standard of International Shoe Co. v. Washington, 326 U. S. 310 (1945), in determining jurisdiction over a nonresident religious organization violates the First and Fourteenth Amendments. Finally, applicant argues that even under the traditional minimum-contacts mode of analysis, its connection with the State of California is too attenuated, under the standards implicit in the Due Process Clause of the Fourteenth Amendment, to justify imposing upon it the burden of a defense in California.

Because the Superior Court’s order denied a pretrial motion, an initial question is whether the judgment below is “final” within the meaning of 28 U. S. C. § 1257, which permits this Court to review only “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had . . . Applicant argues that it can preserve its jurisdictional argument only by suffering a default judgment, since under California law in order to defend on the merits it must appear generally and, accordingly, waive its objection to in personam jurisdiction. See McCorkle v. Los Angeles, 70 Cal. 2d 252, 449 P. 2d 453 (1969). It therefore finds itself between Scylla and Charybdis, and, citing Shaffer v. Heitner, 433 U. S. 186 (1977), asserts that under such circumstances the Superior Court's judgment is final. In Shaffer, this Court, taking a “pragmatic approach” to the •question of finality, held that a Delaware court's pretrial decision to assert jurisdiction over the defendants was final within the meaning of § 1257 because under Delaware law the defendants' only choices were to incur default judgments or to file general appearances and defend on the merits, thereby submitting themselves to the court’s jurisdiction. 433 U. S., at 195-196, n. 12. Respondents contest applicant’s interpretation of California procedural law. They claim that a de-. fendant can defend on the merits and still preserve his jurisdictional objections so long as he seeks immediate appellate review of an adverse decision on a motion to quash. See Cal. Civ. Proc. Code Ann. §418.10 (West 1973). As noted above, applicant did avail itself of this procedure.

If the views of the respective parties are each to be credited, California law may not be clear on this issue, and it certainly is not within my province to resolve their differences with respect to it. If California procedural law is as applicant describes it, I am convinced that this Court would find the Superior Court’s judgment to be “final” within the' meaning of § 1257. See Shaffer v. Heitner, supra; Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975). I need not resolve this issue, however, since I have concluded that even if the Superior Court’s order were a final judgment under § 1257, a stay is nonetheless not warranted in this case.

Any intrusion into state-court proceedings at an interlocutory stage must be carefully considered and will be granted only upon a showing of compelling necessity. Bateman v. Arizona, 429 U. S. 1302, 1305 (1976) (Rehnquist, J., in chambers). Those proceedings are presumptively valid. See Whalen v. Roe, 423 U. S. 1313, 1316 (1975) (Marshall, J., in chambers). A party seeking a stay of a state-court judgment or proceeding must first demonstrate that there is a reasonable probability that four Justices will consider the issues sufficiently meritorious to vote to grant certiorari or note probable jurisdiction. Bateman v. Arizona, supra, at 1305. Applicant has failed to clear this first hurdle.

In my view, applicant plainly is wrong when it asserts that the First and Fourteenth Amendments prevent a civil court from independently examining, and making the ultimate decision regarding, the structure and actual operation of a hierarchical church and its constituent units in an action such as this. There are constitutional limitations on the extent to which a civil court may inquire into and determine matters of ecclesiastical cognizance and polity in adjudicating intra-church disputes. See Serbian Eastern Orthodox Diocese v. Milivojevich. But this Court never has suggested that those constraints similarly apply outside the context of such intra-organization disputes. Thus, Serbian Eastern Orthodox Diocese and the other cases cited by applicant are not in point.Those cases are premised on a perceived danger that in resolving intraehurch disputes the State will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs. 426 U. S., at 709-710. Such considerations are not applicable to purely secular disputes between third parties and a particular defendant, albeit a religious affiliated organization, in which fraud, breach of contract, and statutory violations are alleged. As the Court stated in another context: “Nothing we have said is intended even remotely to imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public.” Cantwell v. Connecticut, 310 U. S. 296, 306 (1940). Nor is it entirely clear that the Superior Court’s determination of the jurisdictional question was based upon its interpretation of Methodist polity; it is equally likely that the court’s decision was founded on the related but separate issue of applicant’s contacts with the State of California.

Likewise untenable, in my view, is applicant’s claim that the First and Fourteenth Amendments somehow forbid resort to traditional minimum-contacts analysis in determining the existence of in personam jurisdiction over a defendant that is affiliated with an organized religion. Not surprisingly, applicant has failed to cite any authority in support of this novel proposition.

The only remaining issue presented by applicant is whether the quality and nature of its contacts with the State of California are such that “maintenance of the suit [in the forum state] does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U. S., at 316, quoting, Milliken v. Meyer, 311 U. S. 457, 463 (1940). Such questions generally tend to depend on the particular facts of each case, Kulko v. California Superior Court, 436 U. S. 84 (1978), and I believe that only a marked departure by a lower court in the application of established law would persuade four Justices to grant certiorari. While the Superior Court’s decision does not purport to resolve all of the factual disputes between the parties, there is no indication that it failed to apply the due process standards enunciated in International Shoe, and cases which have followed it, to the circumstances presented, and, therefore, I believe it unlikely that this issue would command the rotes necessary for certiorari.

Accordingly, the application for a stay pending review on certiorari is denied. The temporary stay I previously entered is hereby terminated.

      1 recognize that in determining whether to grant a stay, Members of this Court may hold differing views on the weight to be accorded any doubt as to the finality of a state-court judgment. See New York Times Co. v. Jascalevich, ante, p. 1331 (Marshall, J., in chambers); New York Times

        Co. v. Jascalevich, ante, p. 1317 (White, J., in chambers); Bateman v. Arizona, 429 U. S. 1302, 1306 (1976) (RehNQUist, J., in chambers). It is not necessary to explore that issue in this case.


text:
    ALEXIS I. du PONT SCHOOL DISTRICT et al. v. EVANS et al.
    No. A-188.
    Decided September 8, 1978
   Mr. Justice Rehnquist.

Applicants, seven defendant suburban school districts in the area of Wilmington, Delaware, have requested that I stay execution of the judgment and mandate of the Court of Appeals for the Third Circuit in this case pending consideration by this Court of their petition for certiorari.

Mr. Justice Brennan denied the application for a stay one week ago, on September 1, 1978, Buchanan v. Evans, ante, p. 1360. Although earlier this summer I granted a stay in Columbus Board of Education v. Penick, ante, p. 1348, after it had been denied by Mr. Justice Stewart, I have decided to deny this application. Since my reasons are somewhat different from those expressed by Mr. Justice Brennan in his opinion, I shall state them here.

As Mr. Justice Brennan noted, the District Court earlier in this litigation found interdistrict violations on the part of several of the independent school districts located in New Castle County. It also declared unconstitutional a Delaware statute granting to the State Board of Education the authority to reorganize school districts within the State, but exempting from the operation of the statute the Wilmington School District. The judgment of the District Court was summarily affirmed without an, opinion by this Court over three dissents. Buchanan v. Evans, 423 U. S. 963 (1975). For the reasons expressed in my dissent in that case, I cannot agree with my Brother Brennan that the unexplicated summary affirmance renders the District Court’s finding that “this dual school system has been perpetuated through constitutional violations of an interdistrict nature” the law of the case. Buchanan v. Evans, ante, at 1363 (Brennan, J., in chambers).

The case later came to this Court on a petition for certiorari from a judgment of the Court of Appeals for the Third Circuit that had concluded that some consolidation of school districts would be necessary in order to formulate an appropriate decree. Certiorari was denied by this Court, Delaware Board oj Education v. Evans, 434 U. S. 880 (1977), with three Justices voting to grant certiorari, and vacate and remand the case for reconsideration in light of this Court’s opinion in Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977). Were I alone deciding these issues on the merits, I would probably grant a stay pending the timely filing of a petition for certiorari. Cf. New York Times Co. v. Jascalevich, ante, at 1337 (Marshall, J., in chambers). But as Mr. Justice Marshall went on to point out in his in-chambers opinion, the Circuit Justice must be reasonably satisfied that four Justices would vote to grant certiorari in the case, and while I do not view any of the prior actions of this Court as dispositive of the merits of the issues decided by the District Court or the Court of Appeals for the Third Circuit, neither do I feel that I can in good conscience say that four Justices of this Court would vote to grant certiorari to consider them at this time.

Present in the instant application, however, is an elaborate, specific plan devised by the District Court to remedy the violations which it had previously found. That remedy consists in part of a court-ordered reorganization and consolidation of 11 independent school districts in northern New Castle County. What had been 11 independent governing boards is for the present 1 interim board having supervisory authority over all 11 districts. The order requires the Delaware State Board of Education to appoint the five-person governing board. Included within the interim board’s authority is the assignment of students, the levying of necessary taxes, the hiring of faculty, and the choice of curriculum.

The second aspect of the remedy is a system of pupil assignment which the District Court ordered the Board to adopt in the judgment which the Court of Appeals affirmed in the case now before me. The modus operandi of that plan is that all students from the two predominantly black school districts are to be reassigned to the nine predominantly white districts for’ nine years of their elementary and secondary education, and all students in the predominantly white districts are to be reassigned to the predominantly black districts for three consecutive years. In affirming this judgment of the District Court, the Court of Appeals for the Third Circuit relied in part on this quotation from Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15-16 (1971):

“[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right.”

However, the language in Swann immediately following the language quoted by the Court of Appeals for the Third Circuit states:

“The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.
“In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.” Id., at 16.

In the succeeding cases of Milliken v. Bradley, 418 U. S. 717 (1974), Hills v. Gautreaux, 425 U. S. 284 (1976), and Dayton Board of Education v. Brinkman, supra, this Court has with increasing emphasis insisted that the scope of the District Court’s authority to fashion a remedy is limited by the constitutional wrong that is to be righted. I believe that before a remedy of this drastic a nature is finally imposed, not merely on 1 school board but on 11 previously independent school boards, four Justices of this Court would wish to grant certiorari and consider that question on its merits. No case from this Court has ever sanctioned a remedy of this kind, or any remedy remotely like it. The only case in which a District Court has become this deeply involved in the day-to-day management of school affairs is Morgan v. Kerrigan, 530 F. 2d 401 (CA1 1976), in which this Court denied certiorari, 426 U. S. 935 (1976). In that case, however, the District Court was dealing with a single school district, and it does not appear that the community superintendents appointed to oversee particular schools by the District Court’s order had any authority to levy taxes. If the Court meant what it said in Dayton, that “local autonomy of school districts is a vital national tradition,” 433 U. S., at 410, I think it would give plenary consideration to a case where the District Court has treated a series of independent school districts which were found to have committed constitutional violations much as if they were a railroad in reorganization.

This case, however, is not presently at the certiorari stage, and no petition for certiorari has been filed. The applicants seek only a partial stay of the District Court’s order, conceding that the pressures of time would render inappropriate a complete stay in view of the fact that the schools in question are scheduled to open Monday, September 11.

This case was argued to the Court of Appeals for the Third Circuit on May ID, 1978, and that court handed down its opinion on July 24. No application for stay of the mandate of the Court of Appeals was presented to Mr. Justice1 Brennan until August 18. He denied the application on September 1, and it was presented to me late in the day on Tuesday, September 5. In a case of this magnitude, with a school opening date of September 11 rapidly approaching, it could be said that applicants might have acted more quickly than they did in seeking a stay from Mr. Justice Brennan. But be that as it may, equitable considerations involving stays do not necessarily turn on notions of laches. I conclude that in view of all the considerations which must be weighed in a matter such as this, the application for stay should be denied. The consolidated school system has been subject to the desegregation order, without interruption, since January 1978. It would simply be too disruptive to upset established expectations now. “This disposition, of course, does not reflect any view on the merits of the issues presented.” Dayton Board of Education v. Brinkman, ante, at 1357 (Stewart, J., in chambers).

      The Delaware State Board of Education joined in the application to Mr. Justice BrenNAN, but has now advised the Clerk’s Office that because of the shortness of time it does not join in the reapplication to me. It has advised the Clerk, however, that it does intend to petition for certiorari for review of the judgment of the Court of Appeals for the Third Circuit. Intervenor, Alfred I. duPont School District, also does not join in this reapplication.


text:
    BUSTOP, INC. v. BOARD OF EDUCATION OF THE CITY OF LOS ANGELES
    No. A-249.
    Decided September 8, 1978
   Mr. Justice Rehnquist, Circuit Justice.

Applicant Bustop, Inc., supported by the Attorney General. of California, requests that I stay, pending the filing of a petition for certiorari or an appeal, the order of the Supreme Court of California. That order vacated a supersedeas or stay issued by the California Court of Appeal, which had in turn stayed the enforcement of a school desegregation order issued by the Superior Court of Los Angeles County.

The desegregation plan challenged by applicant apparently requires the reassignment of over 60,000 students. In terms of numbers it is one of the most extensive desegregation plans in the United States. The essential logic of the plan is to pair elementary and junior high schools having a 70% or greater Anglo majority with schools having more than a 70% minority enrollment. Paired schools are often miles apart, and the result is extensive transportation of students. Applicant contends that round-trip distances are generally in the range of 36 to 66 miles. Apparently some students must catch buses before 7 a. m. and have a 1%-hour ride to school. The objective of the plan is to insure that all schools in the Los Angeles Unified School District have Anglo and minority percentages between 70% and 30%.

Applicant urges on behalf of students who will be transported pursuant to the order of the Superior Court that the order of the Supreme Court of California is at odds v/ith this Court’s recent school desegregation decisions in Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977), Brennan v. Armstrong, 433 U. S. 672 (1977), and School District of Omaha v. United States, 433 U. S. 667 (1977). The California Court of Appeal, which stayed the order of the Superior Court, observed that the doctrine of these cases “reflects a refinement of earlier case law which should not and cannot be ignored.” The majority of the Supreme Court of California, however, in a special session held Wednesday, September 6, vacated the supersedeas or stay issued by the Court of Appeal and denied applicant’s request for a stay of the order of the Superior Court.

Were the decision of the Supreme Court of California premised on the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, I would be inclined to agree with the conclusion of the California Court of Appeal that the remedial order entered by the Superior Court in response to earlier decisions of the Supreme Court of California was inconsistent with our decisions cited above. But the earlier opinion of the Supreme Court of California in this case, Crawford v. Board of Education, 17 Cal. 3d 280, 551 P. 2d 28 (1976), and Jackson v. Pasadena City School District, 59 Cal. 2d 876, 382 P. 2d 878 (1963), construe the California State Constitution to require less of a showing on the part of plaintiffs who seek court-ordered busing than this Court has required of plaintiffs who seek similar relief under the United States Constitution. Although the California Court of Appeal is of the view that this Court’s cases would require a different result from that reached by the Supreme Court of California in Crawford, and although the order of the Supreme Court of California issued Wednesday was not accompanied by a written opinion, in the short time available to me to decide this matter I think the fairest construction is that the Supreme Court of California continues to be of the view which it announced in Jackson and adhered to in Crawford. Quite apart from any issues as to finality, it is this conclusion which effectively disposes of applicant’s suggestion that four Justices of this Court would vote to grant certiorari to review the judgment of the Supreme Court of California, which in effect overturned the order of the Court of Appeal and reinstated the order of the Superior Court.

Applicant relies upon my action staying the judgment and order of the Court of Appeals for the Sixth Circuit in Columbus Board of Education v. Penick, ante, p. 1348, but that case is, of course, different in that the only authority that a federal court has to order desegregation or busing in a local school district arises from the United States Constitution. But the same is not true of state courts. So far as this Court is concerned, they are free to interpret the Constitution of the State to impose more stringent restrictions on the operation of a local school board.

Applicant phrases its contention in this language:

“Unlike desegregation cases coming to this Court through the lower federal courts, of which there must be hundreds, if not thousands, here the issue is novel. The issue: May California in an attempt to racially balance schools use its doctrine of independent state grounds to ignore the federal rights of its citizens to be free from racial quotas and to be free from extensive pupil transportation that destroys fundamental rights of liberty and privacy.” Application for Stay 16.11.

But this is not the traditional argument of a local school board contending that it has been required by court order to implement a pupil assignment plan which was not justified by the Fourteenth Amendment to the United States Constitution. The argument is indeed novel, and suggests that each citizen of a State who is either a parent or a schoolchild has a “federal right” to be “free from racial quotas and to be free from extensive pupil transportation that destroys fundamental rights of liberty and privacy.” Whilé I have the gravest doubts that the Supreme Court of California was required by the United States Constitution to take the action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take such action.

Even if I were of the view that applicant had a stronger federal claim on the merits, the fact that the Los Angeles schools are scheduled to open on Tuesday, September 12, is an equitable consideration which counsels against once more upsetting the expectations of the parties in this case. The Los Angeles Board of Education has been ordered by the Superior Court of Los Angeles County to bus an undoubtedly large number of children to schools other than those closest to where they live. The Board, however, raises before me no objection to the plan, and the Supreme Court of California has apparently placed its imprimatur on it. I conclude that the complaints of the parents and the children in question are complaints about California state law, and it is in the forums of that State that these questions must be resolved. The application for a stay is accordingly

Denied.


author: Mr. Justice Powell.

text:
    BUSTOP, INC. v. BOARD OF EDUCATION OF THE CITY OF LOS ANGELES
    No. A-249.
    Decided September 9, 1978
   Mr. Justice Powell.

The application for a stay in this case, denied by Mr. Justice Rehnquist by his in-chambers opinion and order of September 8, 1978, ante, p. 1380, has now been referred to me.

As I am in accord with the reasons advanced by Mr. Justice Rehnquist in his opinion, I also deny the application.


text:
    KIMBLE et al. v. SWACKHAMER, SECRETARY OF STATE OF NEVADA, et al.
    No. A-354 (78-657).
    Decided October 20, 1978
   Mr. Justice Rehnquist, Circuit Justice.

Applicants request that I “summarily reverse” a judgment of the Supreme Court of Nevada holding that the Constitution of the United States does not prohibit the Nevada Legislature from providing for an advisory referendum on the proposed amendment to the United States Constitution commonly known as the Equal Rights Amendment. In the alternative, they apparently request that I either enjoin the placement of the referendum question on the November ballot in Nevada, or require that the ballots be impounded and their counting be deferre^ until this Court has had an opportunity to pass on applicants’ jurisdictional statement seeking review of the judgment of the Supreme Court of Nevada.

It scarcely requires reference to authority to conclude that a single Circuit Justice has no authority to “summarily reverse” a judgment of the highest court of a State; a single Justice has authority only to grant interim relief in order to preserve the jurisdiction of the full Court to consider an applicant’s claim on the merits. 28 U. S. C. § 1651 (b); this Court’s Rule 51 (1). Since the likelihood that applicants’ claim on the merits would induce four Justices of this Court to note probable jurisdiction on their appeal seems to me very remote, I find it unnecessary to deal with their contention that failure on the part of a single Justice to grant some sort of interim relief will cause them irreparable injury.

In 1977 the Nevada Legislature enacted a statute requiring the submission of an advisory question to the registered voters of the State as to whether the Equal Rights Amendment should be ratified by the legislature. The statute expressly provides that “the result of the voting on this question does not place any legal requirement on the legislature or any of its members.” 1977 Nev. Stats., ch. 174, §§ 3, 5. Applicants asked the Nevada state courts to enjoin respondent Swackhamer, the Secretary of State of Nevada, from complying with the statute. The trial court in Carson City denied their request for relief, and the Supreme Court of Nevada affirmed that ruling by a vote of four to one.

Applicants contend that the Nevada statute providing for an advisory referendum for the benefit of the legislature is repugnant to Art. V of the United States Constitution because it “alters the mode of ratification of a proposed constitutional amendment by . . . providing for citizen participation in the amendatory process through the State’s electoral machinery.” Juris. Statement 3. Applicants also contend that Art. V is offended insofar as the statute requires the Nevada Legislature to defer action on ratification until it receives the results of the referendum, which is not to occur until the next regularly scheduled election of Nevada legislators.

The plain meaning of the Nevada statute and the opinion of the Supreme Court of Nevada convince me that the deferral issue presented by the latter contention is not in this case because the Nevada statute does not prevent the state legislature from acting on the Equal Rights Amendment before the referendum. That the Nevada Legislature is unlikely to vote on the amendment before a referendum that it mandated is not a constitutionally cognizable grievance. Applicants’ other contention, objecting to citizen participation in the amendatory process, is in my opinion not substantial because of the nonbinding character of the referendum. The Supreme Court of Nevada said with respect to the statute that it “does not concern a binding referendum, nor does it impose a limitation upon the legislature. As already noted, the legislature may vote for or against ratification, or refrain from voting on ratification at all, without regard to the advisory vote. The recommendation of the voters is advisory only.” App. to Juris. Statement 4a.

Under these circumstances, applicants’ reliance upon this Court’s decisions in Leser v. Garnett, 258 U. S. 130 (1922), and Hawke v. Smith, 253 U. S. 221 (1920), is obviously misplaced. Both seem to me to stand for the proposition that the two methods for state ratification of proposed constitutional amendments set forth in Art. Y of the United States Constitution are exclusive: Ratification must be by the legislatures of three-fourths of the States or by conventions in three-fourths of the States. Leser, supra, held that Art. V afforded no basis for the argument that an amendment was not properly ratified because ratification resolutions in certain States had not complied with state statutory requirements over and above those prescribed for ratification by Congress and by Art. V. Hawke, supra, held that a state statute providing for ratification by a binding referendum of the electorate was contrary to Art. V, since that Article had specified one of the alternative methods as being ratification by the state legislature and Congress had chosen that alternative.

Under the Nevada statute in question, ratification will still depend on the vote of the Nevada Legislature, as provided by Congress and by Art. V. I would be most disinclined to read either Hawke, supra, or Leser, supra, or Art. V as ruling out communication between the members of the legislature and their constituents. If each member of the Nevada Legislature is free to obtain the views of constituents in the legislative district which he represents, I can see no constitutional obstacle to a nonbinding, advisory referendum of this sort. The application for interim relief is accordingly

Denied.


text:
    CITY OF BOSTON et al. v. ANDERSON et al.
    No. A-355 (78-649).
    Decided October 20, 1978
   Mr. Justice Brennan, Circuit Justice.

The city of Boston, its mayor, and several of its elected officials, have applied to me for a stay of the judgment of the Massachusetts Supreme Judicial Court entered October 4, 1978, enjoining them, inter alia, from expending city funds in support of a referendum proposal on the ballot of the November 1978 general election. If adopted, the proposal would authorize the Massachusetts Legislature to supersede the present tax system of 100% valuation of real property by a system that would, inter alia, classify real property according to its use in no more than four classes and assess, rate, and tax such property differently in the classes so established.

The Supreme Judicial Court held that Mass. Gen. Laws Ann., ch. 55 (West Supp. 1978-1979), barred municipalities from engaging in the expenditure of funds to influence election results. -Mass.-, 380 N. E. 2d 628 (1978). Only last Term this Court struck down a provision of chapter 55 that imposed a ban on private corporate financing of advocacy on referendum questions as abridging expression that the First and Fourteenth Amendments were meant to protect. First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978). The Supreme Judicial Court held in the instant case, however, that even if “constitutionally protected speech includes the right of a municipality to speak militantly about a referendum issue of admitted public importance where the Legislature of the State has said it may not,” --Mass., at-, 380 N. E. 2d, at 637, “there are demonstrated, compelling interests of the Commonwealth which justify the 'restraint’ which the Commonwealth has placed on the city,” id., at-, 380 N. E. 2d, at 637, namely, “[t]he Commonwealth has an interest in assuring that a dissenting minority of taxpayers is not compelled to finance the expression on an election issue of views with which they disagree.” Id., at —•, 380 N. E. 2d, at 639.

In deciding whether to grant a stay pending disposition of the jurisdictional statement I must consider two factors:

“First, 'a. Circuit Justice should “balance the equities” . . . and determine on which side the risk of irreparable injury weighs most heavily.’ Holtzman v. Schlesinger, 414 U. S. 1304, 1308-1309 (1973) (Marshall, J., in chambers). Second, assuming a balance of equities in favor of the applicant, the Circuit Justice must also determine whether 'it is likely that four Members of this Court would vote to grant a writ of certiorari.’ Id., at 1310. The burden of persuasion as to both of these issues rests on the applicant . . . .” Beame v. Friends of the Earth, 434 U. S. 1310, 1312 (1977) (Marshall, J., in chambers).

In my view the balance of the equities favors the grant of the application. In light of Bellotti, corporate industrial and commercial opponents of the referendum are free to finance their opposition. On the other hand, unless the stay is granted, the city is forever denied any opportunity to finance communication to the statewide electorate of its views in support of the referendum as required in the interests of all taxpayers, including residential property owners.

I am also of the view that at least four Members of this Court will vote to grant plenary review of this important constitutional question.

Accordingly, I grant the application and stay the judgment of October 4, 1978, pending further action of this Court or myself as Circuit Justice.


text:
    WARM SPRINGS DAM TASK FORCE et al. v. GRIBBLE et al.
    No. A-357.
    Decided October 20, 1978
   Mr. Justice Rehnquist, Circuit Justice.

Applicants request that I stay an order of the United States District Court for the Northern District of California pending disposition of their appeal therefrom by the United States Court of Appeals for the Ninth Circuit. The District Court’s order denied applicants’ request for a permanent injunction to halt further construction in connection with the Warm Springs Dam-Lake Sonoma project on Dry and Warm Springs Creeks in Sonoma County, Cal. (Dam). Applicants also ask that pending disposition of their appeal I enjoin all further construction activity at the site, except work for the purpose of protecting the soil from effects of weathering and erosion.

The Dam will be an earthen-filled dam, holding back a reservoir of water, across Dry Creek, a major tributary of the Russian River in Sonoma County. It is a multipurpose project designed to provide flood control, water supply, and recreation. The Dam was first authorized in the Flood Control Act of 1962, Pub. L. 87-874, 76 Stat. 1173, 1192, and was under construction when the National Environmental Policy Act of 1969, 42 U. S. C. §4321 et seq. (NEPA), became law. An environmental impact statement was filed prior to the award of a contract for a major segment of the Dam and it is the adequacy of that statement under NEPA which has been the focus of this litigation. When built, the Dam will sit atop the Dry Creek earthquake fault. A second fault is about iy2 miles away and the San Andreas fault is 18 miles distant.

Applicants brought an action in the District Court on March 22, 1974, seeking a preliminary injunction to stay further construction activity with respect to the Dam. During 14 days of hearings on the motion for a preliminary injunction, applicants raised questions about the integrity of the Dam should an earthquake occur and alleged poisoning of the water in the reservoir behind the Dam. On May 23, 1974, the District Court found that the environmental impact statement fully complied with NEPA and denied applicants’ motion for the injunction. Thereafter, the Ninth Circuit denied applicants’ motion for an injunction pending appeal. On June 17, 1974, Mr. Justice Douglas issued an order staying further disturbance of the soil in connection with the Dam, other than for research, investigation, planning, and design activity, pending decision of their appeal by the Court of Appeals. Warm Springs Dam Task Force v. Gribble, 417 U. S. 1301.

On August 18, 1975, the Court of Appeals remanded the case to the District Court to permit it to consider further the adequacy of the environmental impact statement in the areas of seismicity and purity of water in the proposed reservoir. The Court of Appeals continued the existing stay in effect until further action by the District Court. Although not ordered by the court, the Army Corps of Engineers prepared and widely circulated a supplement to the environmental impact statement covering the archaeological aspects of the Dam and the seismicity and water purity problems. After holding three days of hearings, the District Court concluded that all segments of the environmental impact statement fully complied with NEPA and denied applicants’ motion for a permanent injunction.

On November 23, 1977, the Court of Appeals expedited applicants’ appeal of the District Court’s order but denied applicants’ request for interim injunctive relief in an opinion in which it concluded that applicants had not shown that they would suffer “significant harm” during the pendency of the expedited appeal. Oral argument on the appeal was heard on March 13, 1978. When decision of the appeal was not forthcoming, applicants renewed their request for a stay on May 8, 1978. A hearing on the motion was held on May 11, 1978, and on May 30, the Court of Appeals again denied applicants’ request for interim relief. That same day, the Corps signed a major construction contract for the Dam.

On October 4, 1978, the Corps opened bids on a new contract for the construction of a proposed fish hatchery for the Dam. The Corps intends to let the contract on October 20, 1978. This development prompted applicants to make the instant request for a stay to me. They claim that this work will entail extensive expenditures and will have a direct impact on the physical environment of the area. Applicants did not first present their request to the Court of Appeals.

After considering all of the factors required by our rules and customary Circuit Justice practice, I have decided to deny applicants’ request for a stay pending disposition of their appeal by the Ninth Circuit.

Denied.


author: Me. Justice Rehnquist, Circuit Justice.

text:
    DOLMAN et al. v. UNITED STATES
    No. A-534 (78-987).
    Decided December 21, 1978
   Me. Justice Rehnquist, Circuit Justice.

Applicants Dolman and Wilson were convicted of criminal contempt of court pursuant to 18 U. S. C. § 401 (3) for violation of an injunction entered by the United States District Court for the Western District of Washington. Their convictions were affirmed by the Court of Appeals for the Ninth Circuit on September 7, 1978, and their application to stay issuance of the mandate of the Court of Appeals pending determination by this Court of related petitions for certiorari pending-before it was denied on November 16. Meanwhile, this Court granted certiorari on October 16 in No. 78-139, Puget Sound Gillnetters Assn. v. United States District Court, and No. 78-119, Washington v. United States, 439 U. S. 909. There is no question, as the Government maintains in the response which I have requested, that a conviction for criminal contempt may be valid quite apart from the validity of the underlying injunction which was violated, and that the invalidity of an injunction may not ordinarily be raised as a defense in contempt proceedings for its violation. Walker v. Birmingham, 388 U. S. 307, 315-320 (1967); United States v. Mine Workers, 330 U. S. 258, 293-294 (1947).

Applicants’ basic contention here is that since they were not named as parties in the action in the District Court in which the United States was plaintiff and the State of Washington defendant, they were not bound by any injunctive decree which was issued by that court. The District Court rejected this contention, and the Court of Appeals affirmed the convictions for criminal contempt relying upon cases from this Court holding that in some circumstances citizens of a State who claim rights pursuant to state law may be deemed “in privity” with a State and be bound by an injunction or decree to which only the State was a party. Tacoma v. Taxpayers of Tacoma, 357 U. S. 320, 340-341 (1958); Wyoming v. Colorado, 286 U. S. 494, 506-509 (1932).

One of the questions presented in No. 78-139 is this:

“Is an individual who conducts business in a state in such privity to that state that a court may directly enjoin the citizen without his being a party to or a participant in the cause of action in which the State is a party? Assuming privity, if an injunctive order is sought against an individual, is that individual entitled to notice of and participation in the injunctive hearing prior to its issuance?”

The Government in its response to this application simply does not address that question, and the fact that certiorari has been granted in No. 78-139 suggests that at least some Members of the Court regard the question as being of substance.

Both Walker, supra, and Mine Workers, supra, contain language limiting the doctrine that the validity of a conviction for criminal contempt is not vitiated by the invalidity of the underlying injunction to cases in which the court issuing the injunction had jurisdiction of the parties. In Walker, the court quoted approvingly the following language from Howat v. Kansas, 258 U. S. 181, 189-190 (1922):

“An injunction duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them however erroneous the action of the court may be . . . .” 388 U. S., at 314. (Emphasis supplied.)

See also Fed. Rule Civ. Proc. 65 (d). The claim made by these applicants is that they were not in fact parties to the proceedings in the District Court, and that the District Court did not have jurisdiction over them merely because the State of Washington was a party. Since this question will be reviewed in No. 78-139, and since there is some possibility that applicants’ convictions for criminal contempt would be moot once having been served, even under cases such as Sibron v. New York, 392 U. S. 40 (1968), I think there are substantial arguments which favor the granting of a stay in this case.

Nonetheless, I have decided as of now to deny the application. The information available to me as to related proceedings in the Court of Appeals for the Ninth Circuit may not be completely accurate, but I am advised that that court granted a stay at the request of Denne M. Harrington and Gary D. Rondeau, whose appeals from convictions for criminal contempt for violation of the same injunction were consolidated with those of applicants in the Court of Appeals and decided by that court in the same opinion. While applicants did seek a stay from the Court of Appeals of its affirmance of their contempt convictions, it is not apparent from the information available to me that they did so after this Court granted certiorari in No. 78-139, or that they requested the stay pending disposition of a petition for certiorari in their own cases, rather than pending disposition of No. 78-139. Our Rule 27 provides that applications for a stay here will not normally be entertained unless application for a stay has first been made to a judge of the court rendering the decision sought to be reviewed. On the basis of the information before me, I cannot say that applicants have requested a stay from the Court of Appeals for the Ninth Circuit pending disposition by this Court of their petition for certiorari seeking to review the affirmance of their contempt convictions, though I cannot say with certainty that they have not. Because of this uncertainty on my part, because of our grant of certiorari in No. 78-139, and because the Court of Appeals apparently has granted a stay with respect to Harrington and Rondeau, I think it the better exercise of my discretion to require applicants to apply to the Court of Appeals for the Ninth Circuit for a stay pending this Court’s disposition of their petition for certiorari. In the event that such an application is denied, I shall entertain a renewed application for a stay on behalf of applicants Dolman and Wilson.

Denied.