author: Per Curiam and Decree.

text:
    UTAH v. UNITED STATES
    No. 31,
    Orig.
    Argued December 17, 1974
    Decided February 19, 1975

      Danny J. Boggs argued the cause for the United States on exceptions to the Report of the Special Master. With him on the briefs were Solicitor General Bork, Assistant Attorney General Johnson, and John E. Lindskold.

      Richard L. Dewsnup, Special Assistant Attorney General of Utah, argued the cause for plaintiff in support of the Report of the Special Master. With him on the brief were Vernon B. Romney, Attorney General, Robert B. Hansen, Deputy Attorney General, Dállin W. Jensen and Paul E. Reimann, Assistant Attorneys General, and Clifford L. Ashton and Edward W. Clyde, Special Assistant Attorneys General.
   Per Curiam and Decree.

We heard oral argument upon the exceptions to the Report of the Special Master filed by the United States. 419 U. S. 814 (1974). We overrule the exceptions and adopt, and direct the entry of, the decree proposed by the Special Master except that, as agreed by the parties, paragraph No. 1 of the proposed decree is modified in form by revising the phrasing of the opening paragraph to read as follows:

“1. Subject to any federal regulatory authority that may extend to the Great Salt Lake or its shore-lands, the United States of America, its departments and agencies, are enjoined from asserting against the State of Utah any claim of right, title and interest:”

Further, Finding of Fact No. 10 is adjusted, as agreed by the parties, by inserting 4200.8 in lieu of 4200.2, and by inserting 396,000 in lieu of 325,000.

For the purpose of giving effect to the above, the following decree is hereby entered.

It is ordered, adjudged, and decreed that:

“1. Subject to any federal regulatory authority that may extend to the Great Salt Lake or its shore-lands, the United States of America, its departments and agencies, are enjoined from asserting against the State of Utah any claim of right, title and interest:
“(a) to any of the exposed shorelands situated between the edge of the waters of the Great Salt Lake on June 15, 1967, and the bed of the Lake on January 4, 1896, when Utah became a State, with the exception of any lands within the Bear River Migratory Bird Refuge and the Weber Basin federal reclamation project;
“(b) to the natural resources and living organisms in or beneath any of the exposed shorelands of the Great Salt Lake delineated in (a) above; and “(c) to the natural resources and living organisms either within the waters of the Great Salt Lake, or extracted therefrom, as delineated in (a) above.
“2. The State of Utah is not required to pay the United States, through the Secretary of the Interior, for the exposed shorelands, including any minerals, delineated in paragraph 1 above of this decree.
“3. There remains the question whether any lands within the meander line of the Great Salt Lake (as duly surveyed prior to or in accordance with section 1 of the Act of June 3, 1966, 80 Stat. 192), and conveyed by quitclaim deed to the State of Utah, in-eluded, any federally owned uplands above the bed of the Lake on the date of statehood (January 4, 1896) which the United States still owned prior to the conveyance to Utah. In the absence of agreement between the parties disposing of the above question or of the necessity for further proceedings with respect thereto, the Special Master is directed to hold such hearings, take such evidence, and conduct such proceedings with respect to that question as he deems appropriate and, in due course, to report his recommendations to the Court.
“4. The prayer of the United States of America in its answer to the State of Utah’s Complaint that this Court 'confirm, declare and establish that the United States is the owner of all right, title and interest in all of the lands described in Section 2 of the Act of June 3, 1966, 80 Stat. 192, as amended by the Act of August 23, 1966, 80 Stat. 349, and that the State of Utah is without any right, title or interest in such lands, save for the right to have these lands conveyed to it by the United States, and to pay for them, in accordance with the provisions of the Act of June 3, 1966, as amended,’ is denied.”

It is so ordered.

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

      As appears from p. 4 of the Special Master’s Report the parties have reserved their position with respect to this question.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ROE et al. v. DOE
    No. 73-1446.
    Argued December 18, 1974
    Decided February 19, 1975

      'Marvin M. Karpatkin argued the cause for petitioners. With him on the briefs was Michael N. Pollet.

      Ephraim S. London argued the cause for respondent. With him on the brief were Franklin S. Bonem, Bonnie P. Winawer, and Helen L. Buttenwieser.

        Ira M. Millstein filed a brief for the Association of American Publishers, Inc., as amicus curiae urging reversal.

        Joseph Onek filed a brief for the American Psychiatric Assn, et al. as amici curiae urging affirmance.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.


author: Mr. Justice White Mr. Justice Powell,

text:
    WOOD et al. v. STRICKLAND et al.
    No. 73-1285.
    Argued October 16, 1974
    Decided February 25, 1975

      G. Ross Smith argued the cause for petitioners. With him on the brief was Herschel H. Friday.

      Ben Gore argued the cause and filed a brief for respondents.

        F. Raymond Marks filed a brief for the Childhood and Government Project as amicus curiae.

   Mr. Justice White

delivered the opinion of the Court.

Respondents Peggy Strickland and Virginia Crain brought this lawsuit against petitioners, who were members of the school board at the time in question, two school administrators, and the Special School District of Mena, Ark., purporting to assert a cause of action under 42 U. S. C. § 1983, and claiming that their federal constitutional rights to due process were infringed under color of state law by their expulsion from the Mena Public High School on the grounds of their violation of a school regulation prohibiting the use or possession of intoxicating beverages at school or school activities. The complaint as amended prayed for compensatory and punitive damages against all petitioners, injunctive relief allowing respondents to resume attendance, preventing petitioners from imposing any sanctions as a result of the expulsion, and restraining enforcement of the challenged regulation, declaratory relief as to the constitutional invalidity of the regulation, and expunction of any record of their expulsion. After the declaration of a mistrial arising from the jury’s failure to reach a verdict, the District Court directed verdicts in favor of petitioners on the ground that petitioners were immune from damages suits absent proof of malice in the sense of ill will toward respondents. 348 F. Supp. 244 (WD Ark. 1972). The Court of Appeals, finding that the facts showed a violation of respondents’ rights to “substantive due process,” reversed and remanded for appropriate injunctive relief and a new trial on the question of damages. 485 F. 2d 186 (CA8 1973). A petition for rehearing en banc was denied, with three judges dissenting. See id., at 191. Certiorari was granted to consider whether this application of due process by the Court of Appeals was warranted and whether that court’s expression of a standard governing immunity for school board members from liability for compensatory damages under 42 U. S. C. § 1983 was the correct one. 416 U. S. 935 (1974).

I

The violation of the school regulation prohibiting the use or possession of intoxicating beverages at school or school activities with which respondents were charged concerned their “spiking” of the punch served at a meeting of an extracurricular school organization attended by parents and students. At the time in question, respondents were 16 years old and were in the 10th grade. The relevant facts begin with their discovery that the punch had not been prepared for the meeting, as previously planned. The girls then agreed to “spike” it. Since the county in which the school is located is “dry,” respondents and a third girl drove across the state border into Oklahoma and purchased two 12-ounce bottles of “Right Time,” a malt liquor. They then bought six 10-ounce bottles of a soft drink, and, after having mixed the contents of the eight bottles in an empty milk carton, returned to school. Prior to the meeting, the girls experienced second thoughts about the wisdom of their prank, but by then they were caught up in the force of events and the intervention of other girls prevented them from disposing of the illicit punch. The punch was served at the meeting, without apparent effect.

Ten days later, the teacher in charge of the extracurricular group and meeting, Mrs. Curtis Powell, having heard something about the “spiking,” questioned the girls about it. Although first denying any knowledge, the girls admitted their involvement after the teacher said that she would handle the punishment herself. The next day, however, she told the girls that the incident was becoming increasingly the subject of talk in the school and that the principal, P. T. Waller, would probably hear about it. She told them that her job was in jeopardy but that she would not force them to admit to Waller what they had done. If they did not go to him then, however, she would not be able to help them if the incident became “distorted.” The three girls then went to Waller and admitted their role in the affair. He suspended them from school for a maximum two-week period, subject to the decision of the school board. Waller also told them that the board would meet that night, that the girls could tell their parents about the meeting, but that the parents should not contact any members of the board.

Neither the girls nor their parents attended the school board meeting that night. Both Mrs. Powell and Waller, after making their reports concerning the incident, recommended leniency. At this point, a telephone call was received by S. L. Inlow, then the superintendent of schools, from Mrs. Powell’s husband, also a teacher at the high school, who reported that he had heard that the third girl involved had been in a fight that evening at a basketball game. Inlow informed the meeting of the news, although he did not mention the name of the girl involved. Mrs. Powell and Waller then withdrew their recommendations of leniency, and the board voted to expel the girls from school for the remainder of the semester, a period of approximately three months.

The board subsequently agreed to hold another meeting on the matter, and one was held approximately two weeks after the first meeting. The girls, their parents, and their counsel attended this session. The board began with a reading of a written statement of facts as it had found them. The girls admitted mixing the malt liquor into the punch with the intent of “spiking” it, but asked the board to forgo its rule punishing such violations by such substantial suspensions. Neither Mrs. Powell nor Waller was present at this meeting. The board voted not to change its policy and, as before, to expel the girls for the remainder of the semester.

II

The District Court instructed the jury that a decision for respondents had to be premised upon a finding that petitioners acted with malice in expelling them and defined “malice” as meaning “ill will against a person— a wrongful act done intentionally without just cause or excuse.” 348 F. Supp., at 248. In ruling for petitioners after the jury had been unable to agree, the District Court found “as a matter of law” that there was no evidence from which malice could be inferred. Id., at 253.

The Court of Appeals, however, viewed both the instruction and the decision of the District Court as being erroneous. Specific intent to harm wrongfully, it held, was not a requirement for the recovery of damages. Instead, “[i]t need only be established that the defendants did not, in the light of all the circumstances, act in good faith. The test is an objective, rather than a subjective, one.” 485 F. 2d, at 191 (footnote omitted).

Petitioners as members of the school board assert here, as they did below, an absolute immunity from liability under § 1983 and at the very least seek to reinstate the judgment of the District Court. If they are correct and the District Court’s dismissal should be sustained, we need go no further in this case. Moreover, the immunity question involves the construction of a federal statute, and our practice is to deal with possibly dispositive statutory issues before reaching questions turning on the construction of the Constitution. Cf. Hagans v. Lavine, 415 U. S. 528, 549 (1974). We essentially sustain the position of the Court of Appeals with respect to the immunity issue.

The nature of the immunity from awards of damages under § 198-3 available to school administrators and school board members is not a question which the lower federal courts have answered with a single voice. There is general agreement on the existence of a “good faith” immunity, but the courts have either emphasized different factors as elements of good faith or have not given specific content to the good-faith standard.

This Court has decided three cases dealing with the scope of the immunity protecting various types of governmental officials from liability for damages under § 1983. In Tenney v. Brandhove, 341 U. S. 367 (1951), the question was found to be one essentially of statutory construction. Noting that the language of § 1983 is silent with respect to immunities, the Court concluded that there was no basis for believing that Congress intended to eliminate the traditional immunity of legislators from civil liability for acts done within their sphere of legislative action. That immunity, “so well grounded in history and reason . . . ,” 341 U. S., at 376, was absolute and consequently did not depend upon the motivations of the legislators. In Pierson v. Ray, 386 U. S. 547, 554 (1967), finding that “[t]he legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities" in enacting § 1983, we concluded that the common-law doctrine of absolute judicial immunity survived. Similarly, § 1983 did not preclude application of the traditional rule that a policeman, making an arrest in good faith and with probable cause, is not liable for damages, although the person arrested proves innocent. Consequently the Court said: “Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.” 386 U. S., at 555 (footnote omitted). Finally, last Term we held that the chief executive officer of a State, the senior and subordinate officers of the State’s National Guard, and the president of a state-controlled university were not absolutely immune from liability under § 1983, but instead were entitled to immunity, under prior precedent and in light of the obvious need to avoid discouraging effective official action by public officers charged with a considerable range of responsibility and discretion, only if they acted in good faith as defined by the Court:

“[I]n varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.” Scheuer v. Rhodes, 416 U. S. 232, 247-248 (1974).

Common-law tradition, recognized in our prior decisions, and strong public-policy reasons also lead to a construction of § 1983 extending a qualified good-faith immunity to school board members from liability for damages under that section. Although there have been differing emphases and formulations of the common-law immunity of public school officials in cases of student expulsion or suspension, state courts have generally recognized that such officers should be protected from tort liability under state law for all good-faith, nonmalicious action taken to fulfill their official duties.

As the facts of this case reveal, school board members function at different times in the nature of legislators and adjudicators in the school disciplinary process. Each of these functions necessarily involves the exercise of discretion, the weighing of many factors, and the formulation of long-term policy. “Like legislators and judges, these officers are entitled to rely on traditional sources for the factual information on which they decide and act.” Scheuer v. Rhodes, supra, at 246 (footnote omitted). As with executive officers faced with instances of civil disorder, school officials, confronted with student behavior causing or threatening disruption, also have an “obvious need for prompt action, and decisions must be made in reliance on factual information supplied by others.” Ibid.

Liability for damages for every action which is found subsequently to have been violative of a student's constitutional rights and to have caused compensable injury would unfairly impose upon the school decisionmaker the burden of mistakes made in good faith in the course of exercising his discretion within the scope of his official duties. School board members, among other duties, must judge whether there have been violations of school regulations and, if so, the appropriate sanctions for the violations. Denying any measure of immunity in these circumstances “would contribute not to principled and fearless decision-making but to intimidation.” Pierson v. Ray, supra, at 554. The imposition of monetary costs for mistakes which were not unreasonable in the light of all the circumstances would undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students. The most capable candidates for school board positions might be deterred from seeking office if heavy burdens upon their private resources from monetary liability were a likely prospect during their tenure.

These considerations have undoubtedly played a prime role in the development by state courts of a qualified immunity protecting school officials from liability for damages in lawsuits claiming improper suspensions or expulsions. But at the same time, the judgment implicit in this common-law development is that absolute immunity would not be justified since it would not sufficiently increase the ability of school officials to exercise their discretion in a forthright manner to warrant the absence of a remedy for students subjected to intentional or otherwise inexcusable deprivations.

Tenney v. Brandhove, Pierson v. Ray, and Scheuer v. Rhodes drew upon a very similar background and were animated, by a very similar judgment in construing § 1983. Absent legislative guidance, we now rely on those same sources in determining whether and to what extent school officials are immune from damage suits under § 1983. We think there must be a degree of immunity if the work of the schools is to go forward; and, however worded, the immunity must be such that public school officials understand that action taken in the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity.

“Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity-— absolute or qualified — for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.” Scheuer v. Rhodes, 416 U. S., at 241-242 (footnote omitted).

The disagreement between the Court of Appeals and the District Court over the immunity standard in this case has been put in terms of an “objective” versus a “subjective” test of good faith. As we see it, the appropriate standard necessarily contains elements of both. The official himself must be acting sincerely and with a belief that he is doing right, but an act violating a student's constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students’ daily lives than by the presence of actual malice. To be entitled to a special exemption from the categorical remedial language of § 1983 in a case in which his action violated a student’s constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of his charges. Such a standard imposes neither an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system. Any lesser standard would deny much of the promise of § 1983. Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are “charged with predicting the future course of constitutional law.” Pierson v. Ray, 386 U. S., at 557. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.

Ill

The Court of Appeals, based upon its review of the facts but without the benefit of the transcript of the testimony given at the four-day trial to the jury in the District Court, found that the board had made its decision to expel the girls on the basis of no evidence that the school regulation had been violated:

“To justify the suspension, it was necessary for the Board to establish that the students possessed or used an ‘intoxicating’ beverage at a school-sponsored activity. No evidence was presented at either meeting to establish the alcoholic content of the liquid brought to the campus. Moreover, the Board made no finding that the liquid was intoxicating. The only evidence as to the nature of the drink was that supplied by the girls, and it is clear that they did not know whether the beverage was intoxicating or not.” 485 F. 2d, at 190.

Although it did not cite the case as authority, the Court of Appeals was apparently applying the due process rationale of Thompson v. City of Louisville, 362 U. S. 199, 206 (1960), to the public school disciplinary process. The applicability of Thompson in this setting, however, is an issue that need not be reached in this case. The record reveals that the decision of the Court of Appeals was based upon an erroneous construction of the school regulation in question. Once that regulation is properly-construed, the Thompson issue disappears.

The Court of Appeals interpreted the school regulation prohibiting the use or possession of intoxicating beverages as being linked to the definition of “intoxicating liquor” under Arkansas statutes which restrict the term to beverages with an alcoholic content exceeding 5% by weight. Testimony at the trial, however, established convincingly that the term “intoxicating beverage” in the school regulation was not intended at the time of its adoption in 1967 to be linked to the definition in the state statutes or to any other technical definition of “intoxicating.” The adoption of the regulation was at a time when the school board was concerned with a previous beer-drinking episode. It was applied prior to respondents’ case to another student charged with possession of beer. In its statement of facts issued prior to the onset of this litigation, the school board expressed its construction of the regulation by finding that the girls had brought an “alcoholic beverage” onto school premises. The girls themselves admitted knowing at the time of the incident that they were doing something wrong which might be punished. In light of this evidence, the Court of Appeals was ill advised to supplant the interpretation of the regulation of those officers who adopted it and are entrusted with its enforcement. Cf. Grayned v. City of Rockford, 408 U. S. 104, 110 (1972).

When the regulation is construed to prohibit the use and possession of beverages containing alcohol, there was no absence of evidence before the school board to prove the charge against respondents. The girls had admitted that they intended to “spike” the punch and that they had mixed malt liquor into the punch that was served. The third girl estimated at the time of their admissions to Waller that the malt liquor had an alcohol content of 20%. After the expulsion decision had been made and this litigation had begun, it was conclusively determined that the malt liquor in fact had an alcohol content not exceeding 3.2% by weight. Testimony at trial put the alcohol content of the punch served at 0.91%.

Given the fact that there was evidence supporting the charge against respondents, the contrary judgment of the Court of Appeals is improvident. It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. Public high school students do have substantive and procedural rights while at school. See Tinker v. Des Moines Independent Community School District, 393 U. S. 503 (1969); West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943); Goss v. Lopez, 419 U. S. 565 (1975). But § 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees. See Epperson v. Arkansas, 393 U. S. 97, 104 (1968); Tinker, supra, at 507.

IY

Respondents’ complaint alleged that their procedural due process rights were violated by the action taken by petitioners. App. 9. The District Court did not discuss this claim in its final opinion, but the Court of Appeals viewed it as presenting a substantial question. It concluded that the girls were denied procedural due process at the first school board meeting, but also intimated that the second meeting may have cured the initial procedural deficiencies. Having found a substantive due process violation, however, the court did not reach a conclusion on this procedural issue. 485 F. 2d, at 190.

Respondents have argued here that there was a procedural due process violation which also supports the result reached by the Court of Appeals. Brief for Respondents 27-28, 36. But because the District Court did not discuss it, and the Court of Appeals did not decide it, it would be preferable to have the Court of Appeals consider the issue in the first instance.

The judgment of the Court of Appeals is vacated and the case remanded for further proceedings consistent with this opinion.

So ordered.

Mr. Justice Powell,

with whom The Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist join,

concurring in part and dissenting in part.

I join in Parts I, III, and IV of the Court’s opinion, and agree that the judgment of the Court of Appeals should be vacated and the case remanded. I dissent from Part II which appears to impose a higher standard of care upon public school officials, sued under § 1983, than that heretofore required of any other official.

The holding of the Court on the immunity issue is set forth in the margin. It would impose personal liability on a school official who acted sincerely and in the utmost good faith, but who was found — after the fact — to have acted in “ignorance ... of settled, indisputable law.” Ante, at 321. Or, as the Court also puts it, the school official must be held to a standard of conduct based not only on good faith “but also on knowledge of the basic, unquestioned constitutional rights of his charges.” Ante, at 322. Moreover, ignorance of the law is explicitly equated with “actual malice.” Ante, at 321. This harsh standard, requiring knowledge of what is characterized as “settled, indisputable law,” leaves little substance to the doctrine of qualified immunity. The Court’s decision appears to rest on an unwarranted assumption as to what lay school officials know or can know about the law and constitutional rights. These officials will now act at the peril of some judge or jury subsequently finding that a good-faith belief as to the applicable law was mistaken and hence actionable.

The Court states the standard of required knowledge in two cryptic phrases: “settled, indisputable law” and “unquestioned constitutional rights.” Presumably these are intended to mean the same thing, although the meaning of neither phrase is likely to be self-evident to constitutional law scholars — much less the average school board member. One need only look to the decisions of this Court — to our reversals, our recognition of evolving concepts, and our five-to-four splits — to recognize the hazard of even informed prophecy as to what are “unquestioned constitutional rights.” Consider, for example, the recent five-to-four decision in Goss v. Lopez, 419 U. S. 565 (1975), holding that a junior high school pupil routinely suspended for as much as a single day is entitled to due process. I suggest that most lawyers and j udges would have thought, prior to that decision, that the law to the contrary was settled, indisputable, and unquestioned.

Less than a year ago, in Scheuer v. Rhodes, 416 U. S. 232 (1974), and in an opinion joined by all participating members of the Court, a considerably less demanding standard of liability was approved with respect to two of the highest officers of the State, the Governor and Adjutant General. In that case, the estates of students killed at Kent State University sued these officials under § 1983. After weighing the competing claims, the Court-concluded :

“These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.” 416 U. S., at 247-248. (Emphasis added.)

The italicized sentence from Scheuer states, as I view it, the correct standard for qualified immunity of a government official: whether in fight of the discretion and responsibilities of his office, and under all of the circumstances as they appeared at the time, the officer acted reasonably and in good faith. This was the standard applied to the Governor of a State charged with maliciously calling out National Guardsmen who killed and wounded Kent State students. Today’s opinion offers no reason for imposing a more severe standard on school board members charged only with wrongfully expelling three teenage pupils.

There are some 20,000 school boards, each with five or more members, and thousands of school superintendents and school principals. Most of the school board members are popularly elected, drawn from the citizenry at large, and possess no unique competency in divining the law. New cities and counties provide any compensation for service on school boards, and often it is difficult to persuade qualified persons to assume the burdens of this important function in our society. Moreover, even if counsel’s advice constitutes a defense, it may safely be assumed that few school boards and school officials have ready access to counsel or indeed have deemed it necessary to consult counsel on the countless decisions that necessarily must be made in the operation of our public schools.

In view of today’s decision significantly enhancing the possibility of personal liability, one must wonder whether qualified persons will continue in the desired numbers to volunteer for service in public education.

       The Court of Appeals affirmed the directed verdicts awarded by the District Court to P. T. Waller, the principal of Mena Public High School at the time in question, S. L. Inlow, then superintendent of schools, and the Mena Special School District. 485 F. 2d 186, 191 (CA8 1973). Since respondents have not cross-petitioned, the cases of these three parties are not before the Court.

       The Court of Appeals noted that reinstatement was no longer possible since the term of expulsion had ended, but that the respondents were entitled to have the records of the expulsions expunged and to be relieved of any other continuing punishment, if any. Id.., at 190.

       “3. Suspension
      "b. Valid causes for suspension from school on first offense: Pupils found to be guilty of any of the following shall be suspended from school on the first offense for the balance of the semester and such suspension will be noted on the permanent record of the student along with reason for suspension.
      “(4) The use of intoxicating beverage or possession of same at school or at a school sponsored activity.” App. 102.

       “FACTS FOUND BY SCHOOL BOARD
      “1. That Virginia Crain, Peggy Strickland and Jo Wall are students of Mena High School and subject to the governing rules and policies of Mena High School.
      “2. That on or about February 7, 1972 these three girls were charged with the responsibility of providing refreshments for a school function, being a gathering of students of the Home Economic class and some of their parents, on school premises, being the auditorium building of Mena High School, and being under the direction of Mrs. Curtis Powell.
      “3. That the three girls in question traveled to Oklahoma, purchased a number of bottles of malt liquor, a beer type beverage, and later went onto school premises with the alcoholic beverage and put two or more of the bottles of the drink into the punch or liquid refreshment which was to be served to members of the class and parents.” App. 137.
      The Court of Appeals in its statement of the facts observed that the malt liquor and soft drinks were mixed by the girls prior to their return to school, 485 F. 2d, at 187, and petitioners in their brief recite the facts in this manner. Brief for Petitioners 5. This discrepancy in the board’s findings of fact is not material to any issue now before the Court.

       By taking a correspondence course and an extra course later, the girls were able to graduate with their class. Tr. of Oral Arg. 38-39.

       In their original complaint, respondents sought only injunctive and declaratory relief. App. 11-12. In their amended complaint, they added a prayer for compensatory and punitive damages. Id., at 92. Trial was to a jury; and the District Court in ruling on motions after declaring a mistrial appears to have treated the ease as having developed into one for damages only since it entered judgment for petitioners and dismissed the complaint on the basis of their good-faith defense. In a joint motion for a new trial, respondents specifically argued that the District Court had erred in treating the case as one for the recovery of damages only and in failing to give them a trial and ruling on their claims for injunctive and declaratory relief. Id,., at 131. The District Court denied the motion. Id., at 133. Upon appeal, respondents renewed these contentions, and the Court of Appeals, after finding a substantive due process violation, directed the District Court to give respondents an injunction requiring ex-punction of the expulsion records and restraining any further continuing punishment. 485 F. 2d, at 190. Petitioners urge that we reverse the Court of Appeals and order the complaint dismissed. Brief for Petitioners 48. Respondents, however, again stress that the relief they sought included equitable relief. Brief for Respondents 47-48, 50.
      In light of the record in this case, we are uncertain as to the basis for the District Court’s judgment, for immunity from damages does not ordinarily bar equitable relief as well. The opinion of the Court of Appeals does not entirely dispel this uncertainty. With the case in this posture, it is the better course to proceed directly to the question of the immunity of school board members under § 1983.

       In McLaughlin v. Tilendis, 398 F. 2d 287, 290-291 (CA7 1968), a case relied upon by the Court of Appeals below, the immunity was extended to school board members and the superintendent of schools only to the extent that they could establish that their decisions were founded on “justifiable grounds.” Cf. Scoville v. Board of Ed. of Joliet Township, 425 F. 2d 10, 15 (CA7), cert. denied, 400 U. S. 826 (1970). In Smith v. Losee, 485 F. 2d 334, 344 (CA10 1973) (en banc), cert. denied, 417 U. S. 908 (1974), the immunity protecting university officials was described as one of good faith and the absence of malice where the facts before the officials “showed a good and valid reason for the decision although another reason or reasons advanced for nonrenewal or discharge may have been constitutionally impermissible.” The District Court in Kirstein v. Rector and Visitors of University of Virginia, 309 F. Supp. 184, 189 (ED Va. 1970), extended the immunity to action taken in good faith and in accordance with “long standing legal principle.” See also Skehan v. Board of Trustees of Bloomsburg State College, 501 F. 2d 31, 43 (CA3 1974); Handverger v. Harvill, 479 F. 2d 513, 516 (CA9), cert. denied, 414 U. S. 1072 (1973); Wood v. Goodman, 381 F. Supp. 413, 419 (Mass. 1974); Thonen v. Jenkins, 374 F. Supp. 134, 140 (EDNC 1974); Taliaferro v. State Council of Higher Education, 372 F. Supp. 1378, 1382-1383 (ED Va. 1974); Vanderzanden v. Lowell School District No. 71, 369 F. Supp. 67, 72 (Ore. 1973); Jones v. Jefferson County Board of Education, 359 F. Supp. 1081, 1083-1084 (ED Tenn. 1972); Adamian v. University of Nevada, 359 F. Supp. 825, 834 (Nev. 1973); Boyd v. Smith, 353 F. Supp. 844, 845-846 (ND Ind. 1973); Hayes v. Cape Henlopen School District, 341 F. Supp. 823, 829 (Del. 1972); Schreiber v. Joint School District No. 1, Gibraltar, Wis., 335 F. Supp. 745, 748 (ED Wis. 1972); Endicott v. Van Petten, 330 F. Supp. 878, 885-886 (Kan. 1971); Holliman v. Martin, 330 F. Supp. 1, 13 (WD Va. 1971); McDonough v. Kelly, 329 F. Supp. 144, 150-151 (NH 1971); Cordova v. Chonko, 315 F. Supp. 953, 964 (ND Ohio 1970); Gouge v. Joint School District No. 1, 310 F. Supp. 984, 990, 992-993 (WD Wis. 1970).

       "Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here? Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity? Let us assume, merely for the moment, that Congress has constitutional power to limit the freedom of State legislators acting within their traditional sphere. That would be a big assumption. But we would have to make an even rasher assumption to find that Congress thought it had exercised the power. These are difficulties we cannot hurdle. The limits of §§ 1 and 2 of the 1871 statute . . . were not spelled out in debate. We cannot believe that Congress — itself a staunch advocate of legislative freedom — would impinge on a tradition so weE grounded in history and reason by covert inclusion in the general language before us.” 341 U. S., at 376.

       See Donahoe v. Richards, 38 Me. 379 (1854); Britt v. Snodgrass, 66 Mo. 286 (1877); McCormick v. Burt, 95 Ill. 263 (1880); Board of Education of Cartersville v. Purse, 101 Ga. 422, 28 S. E. 896 (1897); Board of Ed. of City of Covington v. Booth, 110 Ky. 807, 62 S. W. 872 (1901); Morrison v. City of Lawrence, 181 Mass. 127, 63 N. E. 400 (1902); Sorrels v. Matthews, 129 Ga. 319, 58 S. E. 819 (1907); Douglass v. Campbell, 89 Ark. 254, 116 S. W. 211 (1909); Barnard v. Shelburne, 216 Mass. 19, 102 N. E. 1095 (1913) ; Sweeney v. Young, 82 N. H. 159, 131 A. 155 (1925) (absolute immunity for acts taken within range of general authority). See also 68 Am. Jur. 2d, Schools § 268, pp. 592-593 (1973); 79 C. J. S., Schools and School Districts § 503 (d), p. 451 (1952); W. Prosser, Law of Torts § 132, p. 989 (4th ed. 1971); R. Hamilton & E. Reut-ter, Legal Aspects of School Board Operation 190-191 (1958).

       See generally R. Campbell, L. Cunningham, & R. McPhee, The Organization and Control of American Schools 177-182 (1965).

       The overwhelming majority of school board members are elected to office. See A. White, Local School Boards: Organization and Practices 8 (U. S. Office of Education, OE-23023, Bulletin No. 8, 1962); National School Boards Association, Survey of Public Education in the Member Cities of the Council of Big City Boards of Education 3 (Nov. 1968); Campbell, Cunningham, & McPhee, supra, n. 10, at 164-170. Most of the school board members across the country receive little or no monetary compensation for their service. White, supra, at 67-79; National School Boards Association, supra, at 3, 15-21; Campbell, Cunningham, & McPhee, supra, at 172.

       "[School directors] are authorized, and it is their duty to adopt reasonable rules for the government and management of the school, and it would deter responsible and suitable men from accepting the position, if held liable for damages to a pupil expelled under a rule adopted by them, under the impression that the welfare of the school demanded it, if the courts should deem it improper.” Dritt v. Snodgrass, 66 Mo., at 293.

       At the time of the Court of Appeals decision, the testimony at the trial to the jury had not been transcribed because of counsel’s concern with limiting litigation costs. Tr. of Oral Arg. 23. The transcript was filed in the District Court after certiorari was granted. App. 120 n. 2.

       See also Vachon v. New Hampshire, 414 U. S. 478, 480 (1974); Gregory v. Chicago, 394 U. S. 111, 112 (1969); Johnson v. Florida, 391 U. S. 596, 598-599 (1968); Shuttlesworth v. City of Birmingham, 382 U. S. 87, 94-95 (1965); Garner v. Louisiana, 368 U. S. 157 (1961). Cf. Boilermakers v. Hardeman, 401 U. S. 233, 246 (1971).

       That is not to say that the requirements of procedural due process do not attach to expulsions. Over the past 13 years the Courts of Appeals have without exception held that procedural due process requirements must be satisfied if a student is to be expelled. See Goss v. Lopez, 419 U. S. 565, 576-578, n. 8 (1975).

       See Ark. Stat. Ann. §§ 48-107, 48-503 (1964).

       The Court of Appeals referred to comments which seemed also to adopt this construction made by the District Court in its findings of fact when it denied respondents’ motion for a preliminary injunction. 485 F. 2d, at 190; App. 80. After noting the District Court’s initial view that petitioners would find it difficult to prove the requisite alcoholic content, the Court of Appeals expressed puzzlement at the failure of the lower court to discuss the absence of such evidence in its final opinion. The District Court, however, indicated in its instructions that the question of the proper construction of the regulation would not be relevant if the jury found that the school officials in good faith considered the malt liquor and punch to fall within the regulation. 348 F. Supp., at 248. The District Court’s ultimate conclusion apparently made unnecessary a final decision on the coverage of the regulation.
      Despite its construction of the present regulation, the Court of Appeals indicated that the school board had the authority to prohibit the use and possession of alcoholic beverages or to continue its policy of proscribing only intoxicating beverages. 485 F. 2d, at 191.

       Two members of the school board at the time that the regulation was adopted testified that there had been no discussion of tying the regulation to the State Alcohol Control Act and that the intent of the board members was to cover beer. Tr. 466-467 (testimony of petitioner Wood); id,., at 589-590 (testimony of Mrs. Gerald Goforth).

       See the minutes of the board meeting at which the regulation was adopted in App. 103-104. See also Tr. 431-432 (testimony of Mrs. Mary L. Spencer, also a board member when the regulation was adopted); id., at 587-588 (Mrs. Goforth).

       The student was suspended in October 1971 for the possession of beer at a school activity. There is no indication in the record of the alcoholic content of the beer. See Tr. 258-259, 268-269 (testimony of former Superintendent Inlow).

       See n. 4, supra. Soon after this litigation had begun, the board issued a statement which said that the regulation “prohibits the use and possession of alcoholic beverage on school premises . . . ." App. 139.

       See Tr. 75 (Strickland); id., at 119, 121 (Crain).

       This percentage content was established through the deposition of an officer of the company that produces “Right Time” malt liquor. App. 93-94.

       Tr. 205 (testimony of Dr. W. F. Turner).

       “The disagreement between the Court of Appeals and the District Court over the immunity standard in this case has been put in terms of an 'objective’ versus a ‘subjective’ test of good faith. As we see it, the appropriate standard necessarily contains elements of both. The official himself must be acting sincerely and with a belief that he is doing right, but an act violating a student’s constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students’ daily lives than by the presence of actual malice. To be entitled to a special exemption from the categorical remedial language of § 1983 in a case in which his action violated a student’s constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of his charges. Such a standard neither imposes an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system. Any lesser standard would deny much of the promise of § 1983. Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are 'charged with predicting the future course of constitutional law.’ Pierson v. Ray, 386 U. S. [547, 557 (1967).] A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” Ante, at 321-322.

       The opinion indicates that actual malice is presumed where one acts in ignorance of the law; thus it would appear that even good-faith reliance on the advice of counsel is of no avail.

       The Court's rationale in Goss suggests, for example, that school officials may infringe a student’s right to education if they place him in a noncollege-preparatory track or deny him promotion with his class without affording a due process hearing. See 419 U. S., at 597-599 (Powell, J., dissenting). Does this mean that school officials who fail to provide such hearings in the future will be liable under § 1983 if a court subsequently determines that they were required ?
      For another current example of how unsettled constitutional law, deemed by some at least to be quite settled, may turn out to be, see the decision and opinions in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975), and compare with Mr. Justice Stewart's dissent in Mitchell v. W. T. Grant Co., 416 U. S. 600, 629 (1974).

       The decision of the Court in Scheuer with respect to qualified immunity is consistent with Mr. Chief Justice Warren’s opinion for the Court in Pierson v. Ray, 386 U. S. 547 (1967), where it was said: “If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional.” Id., at 557.
      As in Scheuer, the standard prescribed is one of acting in good faith in accordance with reasonable belief that the action was lawful and justified. Not even police officers were held liable for ignorance of “settled, indisputable law.”


author: Mr. Justice Marshall Mr. Justice Douglas,

text:
    UNITED STATES v. WILSON
    No. 73-1395.
    Argued December 9, 1974
    Decided February 25, 1975

      Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor

      General Bork, Assistant Attorney General Petersen, and Edward R. Korman.

      Philip D. Lauer argued the cause and filed a brief for respondent.
   Mr. Justice Marshall

delivered the opinion of the Court.

Respondent George J. Wilson, Jr., was tried in the Eastern District of Pennsylvania for converting union funds to his own use, in violation of § 501 (c) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 536, 29 U. S. C. §501 (c). The jury entered a guilty verdict, but on a postverdict motion the District Court dismissed the indictment. The court ruled that the delay between the offense and the indictment had prejudiced the defendant, and that dismissal was called for under this Court’s decision in United States v. Marion, 404 U. S. 307 (1971). The Government sought to appeal the dismissal to the Court of Appeals for the Third Circuit, but that court held that the Double Jeopardy Clause barred review of the District Court’s ruling. 492 F. 2d 1345 (1973). We granted certiorari to consider the applicability of the Double Jeopardy Clause to appeals from postverdict rulings by the trial court. 417 U. S. 908 (1974). We reverse.

I

In April 1968 the FBI began an investigation of respondent Wilson, the business manager of Local 367 of the International Brotherhood of Electrical Workers. The investigation focused on Wilson’s suspected conversion in 1966 of $1,233.15 of union funds to pay part of the expenses of his daughter’s wedding reception. The payment was apparently made by a check drawn on union funds and endorsed by the treasurer and the president of the local union. Respondent contended at trial that he had not authorized the two union officials to make the payment on his behalf and that he did not know the bill for the reception had been paid out of union funds. In June 1970 the FBI completed its investigation and reported to the Organized Crime Strike Force and the local United States Attorney’s Office. There the matter rested for some 16 months until, three days prior to the running of the statute of limitations, respondent was indicted for illegal conversion of union funds.

Wilson made a pretrial motion to dismiss the indictment on the ground that the Government’s delay in filing the action had denied him the opportunity for a fair trial. His chance to mount an effective defense was impaired, Wilson argued, because the two union officers who had signed the check for the reception were unavailable to testify. One had died in 1968, and the other was suffering from a terminal illness. After a hearing, the court denied the pretrial motion, and the case proceeded to trial. The jury returned a verdict of guilty, after which the defendant filed various motions including a motion for arrest of judgment, a motion for a judgment of acquittal, and a motion for a new trial.

The District Court reversed its earlier ruling and dismissed the indictment on the ground that the preindictment delay was unreasonable and had substantially prejudiced the defendant’s right to a fair trial. The union treasurer had died prior to 1970, the court noted, so the loss of his testimony could not be attributed to the preindictment delay. The union president, however, had become unavailable during the period of delay. The court ruled that since he was the only remaining witness who could explain the circumstances of the payment of the check, the preindictment delay violated the respondent’s Fifth Amendment right to a fair trial. This disposition of the Marion claim made it unnecessary to rule on the defendant’s other postverdict motions.

The Government sought to appeal the District Court’s ruling pursuant to the Criminal Appeals Act, 18 U. S. C. § 3731, but the Court of Appeals dismissed the appeal in a judgment order, citing our decision in United States v. Sisson, 399 U. S. 267 (1970). On the Government’s petition for rehearing, the court wrote an opinion in which it reasoned that since the District Court had relied on facts brought out at trial in finding prejudice from the preindictment delay, its ruling was in effect an acquittal. Under the Double Jeopardy Clause, the Court of Appeals held, the Government could not constitutionally appeal the acquittal, even though it was rendered by the judge after the jury had returned a verdict of guilty.

II

The Government argues that the Court of Appeals read the Double Jeopardy Clause too broadly and that it mischaracterized the District Court’s ruling in terming it an acquittal. In the Government’s view, the constitutional restriction on governmental appeals is intended solely to protect against exposing the defendant to multiple trials, not to shield every determination favorable to the defendant from appellate review. Since a new trial would not be necessary where the trier of fact has returned a verdict of guilty, the Government argues that it should be permitted to appeal from any adverse post-verdict ruling. In the alternative, the Government urges that even if the Double Jeopardy Clause is read to bar appeal of any judgment of acquittal, the District Court's order in this case was not an acquittal and it should therefore be appealable. The respondent argues that under our prior cases the Double Jeopardy Clause prohibits appeal of any order discharging the defendant when, as here, that order is based on facts outside the indictment. Because we agree with the Government that the constitutional protection against Government appeals attaches only where there is a danger of subjecting the defendant to a second trial for the same offense, we have no occasion to determine whether the ruling in Wilson’s favor was actually an “acquittal” even though the District Court characterized it otherwise.

A

This Court early held that the Government could not take an appeal in a criminal case without express statutory authority. United States v. Sanges, 144 U. S. 310 (1892). Not reaching the underlying constitutional issue, the Court held only that the general appeals provisions of the Judiciary Act of 1891, 26 Stat. 827, 828, were not sufficiently explicit to overcome the common-law rule that the State could not sue out a writ of error in a criminal case unless the legislature had expressly granted it that right. 144 U. S., at 318, 322-323.

Fifteen years later, Congress' passed the first Criminal Appeals Act, which conferred jurisdiction on this Court to consider criminal appeals by the Government in limited circumstances. 34 Stat. 1246. The Act permitted the Government to take an appeal from a decision dismissing an indictment or arresting judgment where the decision was based on “the invalidity, or construction of the statute upon which the indictment is founded,” and from a decision sustaining a special plea in bar, when the defendant had not been put in jeopardy. The Act was construed in accordance with the common-law meaning of the terms employed, and the rules governing the conditions of appeal became highly technical. This Court had a number of occasions to struggle with the vagaries of the Act; in one of the last of these unhappy efforts, we concluded that the Act was “a failure ... a most unruly child that has not improved with age.” United States v. Sisson, 399 U. S., at 307.

Congress finally disposed of the statute in 1970 and replaced it with a new Criminal Appeals Act intended to broaden the Government's appeal rights. While the language of the new Act is not dispositive, the legislative history makes it clear that Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit.

A bill proposed by the Department of Justice would have permitted an appeal by the United States “from a decision, judgment or order of a district court dismissing an indictment or information or terminating a prosecution in favor of a defendant as to any one or more counts, except that no appeal [would] lie from a judgment of acquittal.” S. 3132; H. R. 14588. The Senate Report on this bill indicated that the Judiciary Committee intended to extend the Government's appeal rights to the constitutional limits. S. Rep. No. 91-1296, p. 18 (1970). Both the report and the wording of the bill, however, suggested that the Committee thought the Double Jeopardy Clause would bar appeal of any acquittal, whether a verdict of acquittal by a jury or a judgment of acquittal entered by a judge. Id., at 2,8-12. At the same time, the Committee appears to have thought that the Constitution would permit review of any other ruling by a judge that terminated a prosecution, even if the ruling came in the midst of a trial. Id., at 11.

The Conference Committee made two important changes in the bill, although it offered no explanation for them. H. R. Conf. Rep. No. 91-1768, p. 21 (1970). The Committee omitted the language purporting to permit an appeal from an order “terminating a prosecution in favor of a defendant,” and it removed the phrase that would have barred appeal of an acquittal. In place of that provision, the Committee substituted the language that was ultimately enacted, under which an appeal was authorized “from a decision, judgment, or order of a district court dismissing an indictment or information . . . except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”

These changes are consistent with the Senate Committee’s desire to authorize appeals whenever constitutionally permissible, but they suggest that Congress decided to rely upon the courts to define the constitutional boundaries rather than to create a statutory scheme that might be in some respects narrower or broader than the Fifth Amendment would allow. In light of this background it seems inescapable that Congress was determined to avoid creating nonconstitutional bars to the Government’s right to appeal. The District Court’s order in this case is therefore appealable unless the appeal is barred by the Constitution.

B

The statutory restrictions on Government appeals long made it unnecessary for this Court to consider the constitutional limitations on the appeal rights of the prosecution except in unusual circumstances. Even in the few relevant cases, the discussion of the question has been brief. Now that Congress has removed the statutory limitations and the Double Jeopardy Clause has been held to apply to the States, see Benton v. Maryland, 395 U. S. 784 (1969), it is necessary to take a closer look at the policies underlying the Clause in order to determine more precisely the boundaries of the Government’s appeal rights in criminal cases.

As has been documented elsewhere, the idea of double jeopardy is very old. See Bartkus v. Illinois, 359 U. S. 121, 151-155 (1959) (Black, J., dissenting); United States v. Jenkins, 490 F. 2d 868, 870-873 (CA2 1973). The early development of the principle can be traced through a variety of sources ranging from legal maxims to casual references in contemporary commentary. Although the form and breadth of the prohibition varied widely, the underlying premise was generally that a defendant should not be twice tried or punished for the same offense. J. Sigler, Double Jeopardy 2-16 (1969). Writing in the 17th century, Lord Coke described the protection afforded by the principle of double jeopardy as a function of three related common-law pleas: autrefois acquit, autre-fois convict, and pardon. With some exceptions, these pleas could be raised to bar the second trial of a defendant if he could prove that he had already been convicted of the same crime. 3 E. Coke, Institutes 212-213 (6th ed. 1680). Blackstone later used the ancient term “jeopardy” in characterizing the principle underlying the two pleas of autrefois acquit and autrefois convict. That principle, he wrote, was a “universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.” 4 W. Blackstone, Commentaries *335-336.

The history of the adoption of the Double Jeopardy Clause sheds some light on what the drafters thought Blaekstone’s “universal maxim” should mean as applied in this country. At the time of the First Congress, only one State had a constitutional provision embodying anything resembling a prohibition against double jeopardy. In the course of their ratification proceedings, however, two other States suggested that a double jeopardy clause be included among the first amendments to the Federal Constitution. Apparently attempting to accommodate these suggestions, James Madison added a ban against double jeopardy to the proposed version of the Bill of Rights that he presented to the House of Representatives in June 1789. Madison’s provision read: “No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.” 1 Annals of Cong. 434 (1789). Several members of the House challenged Madison’s wording on the ground that it might be misconstrued to prevent a defendant from seeking a new trial on appeal of his conviction. Id., at 753. One of Madison’s supporters assured the doubters that the proposed clause merely stated the current law, and that this protection for defendants was implicit in the language as it stood. Madison’s wording survived in the House, but in the Senate, his proposal was rejected in favor of the more traditional language employing the familiar concept of “jeopardy.” S. Jour., 1st Cong., 1st Sess., 71, 77 (1820 ed.). The Senate’s choice of language that tracked Blackstone’s statement of the principles of autrefois acquit and autrefois convict was adopted by the Conference Committee and approved by both Houses with no apparent dissension. Id., at 87 — 88; H. R. Jour., 1st Cong., 1st Sess., 121 (1826 ed.).

In the course of the debates over the Bill of Rights, there was no suggestion that the Double Jeopardy Clause imposed any general ban on appeals by the prosecution. The only restriction on appeal rights mentioned in any of the proposed versions of the Clause was in Maryland’s suggestion that “there shall be . . . no appeal from matter of fact,” which was apparently intended to apply equally to the prosecution and the defense. Nor does the common-law background of the Clause suggest an implied prohibition against state appeals. Although in the late 18th century the King was permitted to sue out a writ of error in a criminal case under certain circumstances, the principles of autrefois acquit and autrefois convict imposed no apparent restrictions on this right. It was only when the defendant was indicted for a second time after either a conviction or an acquittal that he could seek the protection of the common-law pleas. The development of the Double Jeopardy Clause from its common-law origins thus suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial.

C

This Court’s cases construing the Double Jeopardy Clause reinforce this view of the constitutional guarantee. In North Carolina v. Pearce, 395 U. S. 711 (1969), we observed that the Double Jeopardy Clause provides three related protections:

“It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Id., at 717.

The interests underlying these three protections are quite similar. When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense. Ex parte Lange, 18 Wall. 163 (1874); In re Nielsen, 131 U. S. 176 (1889). When a defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make repeated attempts to convict him, “thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U. S. 184, 187-188 (1957).

The policy of avoiding multiple trials has been regarded as so important that exceptions to the principle have been only grudgingly allowed. Initially, a new trial was thought to be unavailable after appeal, whether requested by the prosecution or the defendant. See United States v. Gibert, 25 F. Cas. 1287 (No. 15, 204) (CCD Mass. 1834) (Story, J.). It was not until 1896 that it was made clear that a defendant could seek a new trial after conviction, even though the Government enjoyed no similar right. United States v. Ball, 163 U. S. 662. Following the same policy, the Court has granted the Government the right to retry a defendant after a mistrial only where “there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” United States v. Perez, 9 Wheat. 579, 580 (1824).

By contrast, where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended. In various situations where appellate review would not subject the defendant to a second trial, this Court has held that an order favoring the defendant could constitutionally be appealed by the Government. Since the 1907 Criminal Appeals Act, for example, the Government has been permitted without serious constitutional challenge to appeal from orders arresting judgment after a verdict has been entered against the defendant. See, e. g., United States v. Bramblett, 348 U. S. 503 (1955); United States v. Green, 350 U. S. 415 (1956); Pratt v. United States, 70 App. D. C. 7, 11, 102 F. 2d 275, 279 (1939). Since reversal on appeal would merely reinstate the jury’s verdict, review of such an order does not offend the policy against multiple prosecution.

Similarly, it is well settled that an appellate court’s order reversing a conviction is subject to further review even when the appellate court has ordered the indictment dismissed and the defendant discharged. Forman v. United States, 361 U. S. 416, 426 (1960). If reversal by a court of appeals operated to deprive the Government of its right to seek further review, disposition in the court of appeals would be “tantamount to a verdict of acquittal at the hands of the jury, not subject to review by motion for rehearing, appeal, or certiorari in this Court.” Ibid. See also United States v. Shotwell Mfg. Co., 355 U. S. 233, 243 (1957).

It is difficult to see why the rule should be any different simply because the defendant has gotten a favorable post-verdict ruling of law from the District Judge rather than from the Court of Appeals, or because the District Judge has relied to some degree on evidence presented at trial in making his ruling. Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact.

As we have noted, this Court has had relatively few occasions to comment directly on the constitutional restrictions on Government appeals. The few relevant cases are nonetheless consistent with double jeopardy cases from rélated areas, in focusing on the prohibition against multiple trials as the controlling constitutional principle.

The Court first addressed the question in United States v. Ball, supra. After trial on an indictment for murder, the jury found one of the defendants not guilty. The indictment was later determined to be defective, but this Court held that an acquittal, even on a defective indictment, was sufficient to bar a subsequent prosecution for the same offense. 163 U. S., at 669. “The verdict of acquittal was final,” the Court wrote, “and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution.” Id., at 671.

Eight years later the Court was again faced with a double jeopardy challenge to a Government appeal. In Kepner v. United States, 195 U. S. 100 (1904), the prosecution sought what was in essence a trial de novo after the defendant had been acquitted by the court in a bench trial. The Court, relying on the Ball case, held that “to try a man after a verdict of acquittal is to put him twice in jeopardy, although the verdict was not followed by judgment.” Id., at 133. Permitting an appeal in Kepner would in effect have exposed the defendant to a second trial, in violation of the constitutional protection against multiple trials for the same offense.

Respondent contends that Ball and Kepner stand for the proposition that the key to invoking double jeopardy protection is not whether the defendant might be subjected to multiple trials, but whether he can point to a prior verdict or judgment of acquittal. In Ball, however, the Court explained that review of the verdict of acquittal was barred primarily because it would expose the defendant to the risk of a second trial after the finder of fact had ruled in his favor in the first. And, although the Kepner case technically involved only a single proceeding, the Court regarded the practice as equivalent to two separate trials, and the evil that the Court saw in the procedure was plainly that of multiple prosecution:

“The court of first instance, having jurisdiction to try the question of the guilt or innocence of the accused, found Kepner not guilty; to try him again upon the merits, even in an appellate court, is to put him a second time in jeopardy for the same offense.” 195 U. S., at 133.

The respondent seeks some comfort from this Court’s more recent decision in Fong Foo v. United States, 369 U. S. 141 (1962), but that case, too, reflects the policy against multiple trials in limiting the Government’s appeal rights. In Fong Foo the trial court had interrupted the Government’s case and directed the jury to return verdicts of acquittal as to all the defendants. This Court held that even if the District Court had erred in directing the acquittal, the Double Jeopardy Clause was offended “when the Court of Appeals set aside the judgment of acquittal and directed that the petitioners be tried again for the same offense.” Id., at 143. The Court noted that although retrial is sometimes permissible after a mistrial is declared but no verdict or judgment has been entered, the verdict of acquittal foreclosed retrial and thus barred appellate review.

Finally, respondent places great weight on our decision in United States v. Sisson, 399 U. S. 267 (1970). He claims that Sisson extends the constitutional protection against Government appeals to any case in which the ruling appealed from is based upon facts outside the face of the indictment.

Sisson arose under the former Criminal Appeals Act and came here on direct appeal from the District Court. The defendant had been tried for refusing to submit to induction, and the jury had found him guilty. On a postverdict motion, however, the District Court entered what it termed an “arrest of judgment,” dismissing the indictment on the ground that Sisson could not be convicted because his sincere opposition to the war in Vietnam outweighed the country’s need to draft him. The Government sought to appeal the District Court’s ruling on the theory that it was within the “arresting judgment” provision of the Criminal Appeals Act. We held that the ruling was not appealable under either the “arresting judgment” or the “motion in bar” provisions of the Act and dismissed the case for want of appellate jurisdiction.

Writing for a plurality of four Justices, Mr. Justice Harlan gave three reasons for his conclusion that the District Court’s ruling was not appealable as an arrest of judgment. First, he wrote, the District Court’s ruling was not within the common-law definition of an arrest of judgment since it went beyond the face of the record. The Criminal Appeals Act, he noted, was drafted against a common-law background in which the statutory phrase had a “well-defined and limited meaning” that did not incorporate rulings that relied upon evidence introduced at trial. Second, the District Court’s ruling failed to satisfy the statutory requirement that the decision arresting judgment be “for insufficiency of the indictment.” The issue of the sincerity of Sisson’s beliefs was not presented by the indictment; accordingly, the indictment was not “insufficient” under the appeals statute, since it was sufficient to charge an offense and it did not allege facts that in themselves established the availability of a constitutional privilege. In Part II-C of the opinion, for which Mr. Justice Black provided a majority of the Court, Mr. Justice Harlan explained the third reason for concluding that the District Court’s order was not an arrest of judgment: because the order was “bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trial,” it was an acquittal “rendered by the trial court after the jury’s verdict of guilty.” 399 U. S., at 288. The District Court’s post-verdict ruling, he wrote, was indistinguishable from a hypothetical verdict of acquittal entered by a jury on an instruction incorporating the constitutional defense that the judge had recognized in his ruling. If the jury had been so instructed and had acquitted, he pointed out, there would plainly have been no appeal under the Criminal Appeals Act. The legislative history of the Act made it clear that Congress did not contemplate review of verdicts of acquittal, no matter how erroneous the constitutional theory underlying the instructions. Nor, he added, could an appeal have been taken consistently with the Double Jeopardy Clause. The latter point was made in the following passage:

“Quite apart from the statute, it is, of course, well settled that an acquittal can 'not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution. . . . [I] n this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offence.' United States v. Ball, 163 U. S. 662, 671 (1896).” 399 U. S., at 289-290.

Respondent argues that this passage was meant to provide an alternative holding for Sisson, that even if the Criminal Appeals Act would permit an appeal on the facts in Sisson, the Double Jeopardy Clause would not. In essence, respondent rests his case on what he perceives to be the Court’s syllogism in this portion of the Sisson opinion: (1) the postverdict ruling was not a common-law arrest of judgment, but an acquittal; (2) under the Ball case, an acquittal cannot be appealed without offending the Double Jeopardy Clause; thus, (3) the District Court’s ruling in Sisson was shielded from review as a matter of constitutional law.

We are constrained to disagree. A more natural reading of this passage suggests that the reference to the Double Jeopardy Clause was meant to apply to the hypothetical jury verdict, not to the order entered by the trial court in Sisson itself. Appeal from the hypothetical jury verdict would have been precluded both by the statute and by the Constitution; appeal from the District Court’s actual ruling in the case, however, was barred solely by the statute. The only direct effect of the Constitution on the case was, as the Court pointed out in a footnote following the quoted passage, that after this Court’s jurisdictional dismissal, Sisson could not be retried. 399 U. S., at 290 n. 18. Accordingly, we find Sisson no authority for the proposition that the Government cannot constitutionally appeal any postverdict order that would have been an unappealable acquittal under the former Criminal Appeals Act.

D

The Government has not seriously contended in this case that any ruling of law by a judge in the course of a trial is reviewable on the prosecution’s motion, although this view has had some support among the commentators since Mr. Justice Holmes adopted it in his dissent to Kepner v. United States, supra. Mr. Justice Holmes accepted as common ground that the Double Jeopardy Clause forbids “a trial in a new and independent case where a man already had been tried once.” 195 U. S., at 134. But in his view the first jeopardy should be treated as continuing until both sides have exhausted their appeals on claimed errors of law, regardless of the possibility that the defendant may be subjected to retrial after a verdict of acquittal.

A system permitting review of all claimed legal errors would have symmetry to recommend it and would avoid the release of some defendants who have benefited from instructions or evidentiary rulings that are unduly favorable to them. But we have rejected this position in the past, and we continue to be of the view that the policies underlying the Double Jeopardy Clause militate against permitting the Government to appeal after a verdict of acquittal. Granting the Government such broad appeal rights would allow the prosecutor to seek to persuade a second trier of fact of the defendant's guilt after having failed with the first; it would permit him to re-examine the weaknesses in his first presentation in order to strengthen the second; and it would disserve the defendant’s legitimate interest in the finality of a verdict of acquittal. These interests, however, do not apply in the case of a postverdict ruling of law by a trial judge. Correction of an error of law at that stage would not grant the prosecutor a new trial or subject the defendant to the harassment traditionally associated with multiple prosecutions. We therefore conclude that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.

Ill

Applying these principles to the present case is a relatively straightforward task. The jury entered a verdict of guilty against Wilson. The ruling in his favor on the Marion motion could be acted on by the Court of Appeals or indeed this Court without subjecting him to a second trial at the Government’s behest. If he prevails on appeal, the matter will become final, and the Government will not be permitted to bring a second prosecution against him for the same offense. If he loses, the case must go back to the District Court for disposition of his remaining motions. We therefore reverse the judgment and remand for the Court of Appeals to consider the merits of the Government’s appeal.

Reversed and remanded.

Mr. Justice Douglas,

with whom Mr. Justice Bren-kan joins,

dissenting.

Respondent Wilson was indicted for converting to his own use funds of Local 367, IBEW, which he served as business manager and financial secretary. The theory of the prosecution was that respondent had caused union funds to be expended for his daughter’s wedding reception. It was undisputed that a check drawn on the union and signed by two union officers, Brinker and Schaefer, had been forwarded to the hotel where the wedding reception had been held, and that the hotel had applied the payment in satisfaction of debts incurred on account of the reception.

The funds were paid in November 1966. An indictment was returned in October 1971, three days prior to the running of the statute of limitations. By that time, neither of the two signatories to the union check was available to testify in the case. Brinker had died in 1968; Schaefer was terminally ill. Respondent filed a pretrial motion to dismiss the indictment on the ground that preindictment delay violated the Due Process Clause of the Fifth Amendment. See United States v. Marion, 404 U. S. 307. Specifically, respondent argued that the unavailability of the two signatories, caused by preindictment delay, prejudiced his defense. After two pretrial hearings, the District Court denied the motion.

At the trial, it was established that the local’s attorney, one Burke, had made a $1,000 deposit at the hotel where the wedding reception was held, to cover expenses. A bill for the balance had been mailed by the hotel to respondent’s home address. Five months later the check signed by Brinker and Schaefer had arrived. The testimony established that the usual procedure for issuance of a check was the completion of a voucher signed by local president Schaefer and the recording secretary, thus signifying approval of the expenditure, preparation of a check by a secretary, and signature by the local president and treasurer. It was established that respondent had first given Brinker and Schaefer their office positions, though they had been elected to the offices they held in the union.

Respondent testified that he had never directed anyone to issue the check in question and that he had reimbursed Burke personally for the $1,000 deposit. He did acknowledge, however, that Burke had told him in November 1966, shortly after the payment reached the hotel, that the bill had been paid.

At the close of evidence respondent renewed his motion to dismiss on account of preindictment delay. The judge withheld decision until receiving the verdict.

The jury found respondent guilty. The District Court then ruled on respondent’s motion. It found that the Government had unreasonably delayed the indictment 16 months after completion of an FBI investigation in 1970. The court found that the delay caused the union president Schaefer to be unavailable as a trial witness. (Brinker had died in 1968, while the Government’s investigation was in progress.) Since, in the court’s view, the presence of Schaefer, the signer of the check and voucher, would have added “testimony of utmost importance to the trial,” the court ruled that respondent had been substantially prejudiced by the delay that deprived the trial of Schaefer’s testimony. Accordingly, the court dismissed the indictment.

The Government sought to appeal, arguing that the dismissal had been erroneous. The Court of Appeals held that appeal by the Government violated the Double Jeopardy Clause.

In United States v. Sisson, 399 U. S. 267, facts developed in the trial of Sisson led a jury to convict him. But after the jury verdict the District Court rendered a postverdict opinion called “an arrest of judgment” which this Court called “a post-verdict directed acquittal,” id., at 290, which was described as “a legal determination on the basis of facts adduced at the trial relating to the general issue of the case,” id., at 290 n. 19, a reading reaffirmed in United States v. Jorn, 400 U. S. 470, 478 n. 7.

In the present case the District Court reviewed the evidence given at the trial and concluded that the respondent had been prejudiced because of testimony the missing witness (terminally ill) probably would have added. What was asked on appeal was that the appellate judges review independently the evidence at the trial bearing on guilt and reach a different conclusion. In United States v. Ball, 163 U. S. 662, 671, the Court said in a dictum that has had a continuing impact on the law: “The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution.” (Emphasis supplied.)

In Kepner v. United States, 195 U. S. 100, the defendant was acquitted of an embezzling charge following a non jury trial in a court of the Philippines. The Government took an appeal to the Supreme Court of the Philippines, which independently reviewed the record and found Kepner guilty. This Court reversed, holding that the Double Jeopardy Clause barred the entry of conviction by the appellate court. The Court considered appellate review by the Philippine Supreme Court to be equivalent to the second trial in Ball. The Court accordingly held:

“It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered .... The protection is not . . . against the peril of second punishment, but against being again tried for the same offense.” 195 U. S., at 130.

Fong Foo v. United States, 369 U. S. 141, involved a trial not completed but promising to be “long and complicated,” where the trial judge directed a verdict for the defendants on the ground of prosecutorial improprieties and lack of credibility of Government witnesses. The Court of Appeals had held that the trial judge had no power to direct an acquittal on the record before it. This Court reversed, though the Court of Appeals “thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation,” id., at 143. The dictum of Ball, quoted above, was deemed controlling. Ibid.

In the present case, as in Fong Foo, the ruling of the trial court is based in part on the evidence adduced at the trial and in part on other related issues. Thus the issue of a speedy trial in the present case is not reviewable, for it is part and parcel of the process of weighing the Government's evidentiary case against respondent. Therefore we should affirm the judgment below.

       The Court of Appeals noted that the portion of the investigation that focused on Wilson was completed by June 1969. 492 F. 2d 1345, 1346. The FBI agent who conducted the investigation testified that he had communicated with representatives of the Strike Force and the United States Attorney’s Office about the case as early as December 1969. App. 28.

       Significantly, the statute expressly provided that the Government could not have a. writ of error ‘'‘in any case where there has been a verdict in favor of the defendant.” The legislative history indicates that this provision was added to ensure that the statute would not conflict with the principles of the Double Jeopardy Clause. See 41 Cong. Dec. 2749-2762, 2819.

       The statute was amended several times, but the amendments did not render its construction any simpler. The most significant change in the statute was the 1942 amendment, 56 Stat. 271, in which Congress provided that some dismissals should be reviewed in the courts of appeals and that the Supreme Court’s appellate jurisdiction should extend to prosecutions by information. In 1968, the statute was further amended to authorize Government appeals from pretrial rulings granting motions to suppress or to return seized property. 82 Stat. 237.

       See, e. g., United States v. Weller, 401 U. S. 254 (1971); United States v. Sisson, 399 U. S. 267 (1970); United States v. Mersky, 361 U. S. 431 (1960); United States v. Borden Co., 308 U. S. 188 (1939).

       The new statute, 18 U. S. C. § 3731, was passed as Title III of the Omnibus Crime Control Act of 1970, Pub. L. 91-644, 84 Stat. 1890.

       Expressions of the principle can be found in English law from the time of the Year Books, and as early as the 15th century the English courts had begun to use the term “jeopardy” in connection with the principle against multiple trials. See Kirk, “Jeopardy” During the Period of the Year Books, 82 U. Pa. L. Rev. 602 (1934).

       Part I, Art. XVI, of New Hampshire’s Constitution of 1784 read: “No subject shall be liable to be tried, after an acquittal, for the same crime or offence.” It contained no prohibition, however, against retrial after conviction. 4 E, Thorpe, The Federal and State Constitutions 2455 (1909).

       Among the suggested amendments that New York sent to the Congress with its ratification declaration was one that read: “That no person ought to be put twice in jeopardy of life or limb, for one and the same offence; nor, unless in case of impeachment, be punished more than once for the same offence.” 1 J. Elliott, Debates on the Federal Constitution 328 (1876). This language borrowed heavily from Blackstone’s formulation. Maryland also sent a proposed version of the Double Jeopardy Clause, which read: “That there shall be... no appeal from matter of fact, or second trial after acquittal; but this provision shall not extend to such cases as may arise in the government of the land or naval forces.” 2 Elliott, supra, at 550.

       From the brief report of the debate it appears that both sides agreed that a defendant could have a second trial after a conviction, but the Government could not have a new trial after an acquittal. Representative Sherman commented: “If the [defendant] was acquitted on the first trial, he ought not to be tried a second time; but if he was convicted on the first, and any thing should appear to set the judgment aside, he was entitled to a second, which was certainly favorable to him.” 1 Annals of Cong. 753 (1789).

       The prosecution's appeal rights were generally limited to cases in which the error appeared on the face of the record, or in which the defendant had obtained his acquittal by fraud or treachery. See M. Friedland, Double Jeopardy 287 (1969).

       This exception to the “one trial” rule has been explained on the conclusory theories that the defendant waives his double jeopardy claim by appealing his conviction, or that the first jeopardy continues until he is acquitted or his conviction becomes final, see Green v. United States, 355 U. S. 184, 189 (1957). As Mr. Justice Harlan noted in United States v. Tateo, 377 U. S. 463, 465-466 (1964), however, the practical justification for the exception is simply that it is fairer to both the defendant and the Government.

         In Perez, the Court emphasized the limited scope of this exception by adding: “To be sure, the power [to declare a mistrial and subject the defendant to retrial] ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” 9 Wheat., at 580.

       On a number of occasions, the Court has observed that the Double Jeopardy Clause “prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.” Helvering v. Mitchell, 303 U. S. 391, 399 (1938). See also One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 235-236 (1972); Stroud v. United States, 251 U. S. 15, 18 (1919); cf. United States v. Jorn, 400 U. S. 470, 479 (1971).

       Judge Learned Hand took this position in United States v. Zisblatt, 172 F. 2d 740, 743 (CA2), appeal dismissed on the Government’s motion, 336 U. S. 934 (1949). “So long as the verdict of guilty remains as a datum, the correction of errors of law in attaching the proper legal consequences to it do not trench upon the constitutional prohibition.”

       The challenge in Kepner was based, not on the Constitution, but on a statutory provision that extended double jeopardy protection to the Philippines. While cases construing that statute do not necessarily control the construction of the Double Jeopardy Clause of the Fifth Amendment, see Green v. United States, 355 U. S., at 197, we accept Kepner as having correctly stated the relevant double jeopardy principles.

       Although Kepner technically involved only one proceeding, the Court regarded the second factfinding as the equivalent of a second trial. In subsequent cases, this Court has treated the Kepner principle as being addressed to the evil of successive trials, see Stroud v. United States, 251 U. S. 15, 18 (1919); Palko v. Connecticut, 302 U. S. 319, 322-323 (1937).

       Under respondent’s interpretation of the passage, the reliance on Ball is difficult to explain. The rationale of the Ball case, and particularly the portion quoted in Sisson, turns on the fact that an appeal might result in a second trial, which would not have been necessary in Sisson. On the narrower reading of the passage, the reference to Ball is precisely in point; the verdict of the hypothetical jury would be unappealable for the very reason stated in the quotation from the Ball case.
      In addition, respondent’s proposed reading of the passage would constitutionalize the very common-law distinctions that the Sisson Court anticipated an amended Criminal Appeals Act would eliminate. If no postverdict order except a common-law arrest of judgment is constitutionally appealable, this Court and the courts of appeals would continue to be plagued with the “limitations imposed by [the] awkward and ancient [Criminal Appeals] Act,” 399 U. S., at 308. Worse still, the unhappy task of exploring pleading distinctions that existed at common law would now be imposed on the States, see Benton v. Maryland, 395 U. S. 784 (1969).

       On any view, Sisson would have been a singularly inappropriate case in which to decide the constitutional point. The constitutional question was not raised or briefed by the parties, and resolution of the issue in the manner respondent suggests would have marked a significant development in double jeopardy law, deserving of plenary treatment.

       The Government has advanced this argument, if rather cautiously, in its brief in a companion case, United States v. Jenkins, post, p. 358, upon which it has relied in this case. See Brief for United States in United States v. Jenkins, No. 73-1513, O. T. 1974, pp. 24-25, n. 16.

       See, e. g., Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 8-15 (1960); Miller, Appeals by the State in Criminal Cases, 36 Yale L. J. 486 (1927).

       See Ashe v. Swenson, 397 U. S. 436, 446-447 (1970); id., at 455 n. 11, 459 (Brennan, J., concurring); Green v. United States, 355 U. S., at 187; Comment, Double Jeopardy and Government Appeals of Criminal Dismissals, 52 Tex. L. Rev. 303, 340-342 (1974).

       Technically, the Court was construing, not the Double Jeopardy Clause, but a statute passed by Congress for administration of the Philippines that contained identical language. But the Court treated the question as a constitutional one, finding the above-quoted dictum from Ball controlling.