text:
    NORTHERN INDIANA PUBLIC SERVICE CO. v. PORTER COUNTY CHAPTER OF THE IZAAK WALTON LEAGUE OF AMERICA, INC., et al.
    No. 75-4.
    Decided November 11, 1975
   Per Curiam.

An Atomic Energy Commission Atomic Safety and Licensing Board approved the issuance of a construction permit to Northern Indiana Public Service Co. (NIPSCO) for a commercial nuclear powered electrical generating plant proposed to be built on the south shore of Lake Michigan, in Porter County, Ind., RAI-74-4, p. 557 (1974). On appeal, an AEC Atomic Safety and Licensing Appeal Board, RAI-74-8, p. 244 (1974), sustained the approval. On petition for review by inter-venors in the administrative proceedings, a divided panel of the Court of Appeals for the Seventh Circuit set aside the approval on the ground that the Licensing Board and the Appeal Board failed to follow the Commission’s own regulations governing “population center distance” in the nuclear plant siting. 515 F. 2d 513 (1975). The petition for certiorari is granted, and the judgment of the Court of Appeals is reversed.

Title 10 CFR § 100.10 (b) (1975) of the Commission’s regulations provides that “the Commission will take . . . into consideration in determining the acceptability of a [proposed nuclear plant] site” the “population center distance,” defined in 10 CFR § 100.3 (c) (1975) as “the distance from the reactor to the nearest boundary of a densely populated center containing more than about 25,000 residents.” At the time of NIPSCO’s application and also at the time of the Court of Appeals’ decision, 10 CFR § 100.11 (a)(3) (1975) further provided, in pertinent part, that “[a]s an aid in evaluating a proposed site” for a nuclear power plant a permit applicant should determine for the proposed unit a

“population center distance of at least one and one-third times the distance from the reactor to the outer boundary of the low population zone. In applying this guide, due consideration should be given to the population distribution within the population center.”

Two miles was the minimum allowable “population center distance” determined administratively pursuant to § 100.11 (a) (3). Accepting this determination, the Court of Appeals held that issuance of the construction permit violated the agency’s own regulations because the corporate boundary of the city of Portage, Ind. — projected to have a population in excess of 25,000 by 1980 — lay within 1.1 miles of NIPSCO’s proposed site. In reaching this conclusion the Court of Appeals rejected the agency’s administrative interpretation of its regulations as prescribing computation of “population center distance” for § 100.11 (a) (3) purposes, where the difference is critical to the siting decision, not solely to a political boundary but to the boundary of “that portion of the population center at which the dense population starts,” RAI-74-4, at 565. Under that interpretation of the regulations the “population center distance” was an acceptable 4.5 miles.

The Court of Appeals erred in rejecting the agency’s interpretation of its own regulations. That interpretation is supported by the wording of the regulations and is consistent with prior agency decisions. The wording does not equate a “dense population center” with a city or other political entity, nor does it define a “boundary” in terms of pre-existing lines drawn for nonsiting purposes. Rather, the regulations require consideration of “population distribution within the population center” in applying the “population center distance” guide. Political boundaries, in contrast, may be drawn for many reasons irrelevant to safe reactor siting, and thus encompass areas never likely to harbor a significant population. But even if the meaning is not free from doubt, the agency’s reliance upon the actual boundaries of population density in its interpretation sensibly conforms to the purpose and wording of the regulations. In that circumstance, the Court of Appeals was “obligated to regard as controlling [such] a reasonable, consistently applied administrative interpretation . . . .” Ehlert v. United States, 402 U. S. 99, 105 (1971). See also Udall v. Tallman, 380 U. S. 1, 16-17 (1965); Power Reactor Co. v. Electricians, 367 U. S. 396, 408 (1961); Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 413-414 (1945).

The judgment is reversed, and the case is remanded for consideration of other contentions against the issuance of the construction permit not decided by the Court of Appeals.

So ordered.

Mr. Justice Douglas,

concurring.

The Atomic Energy Commission, by general regulations, limited the location of nuclear power plants so as not to be nearer than a specified number of miles from population centers. After issuing a construction permit which the Court of Appeals held violated those regulations, that agency’s successor, the Nuclear Regulatory Commission, amended the regulations so as to permit the deviation. 40 Fed. Reg. 26526 (1975). By its decision today, the Court holds that the Court of Appeals “erred in rejecting the agency’s interpretation of its own regulations.” Ante, at 14. I read today’s decision as in no way relying on the agency’s post hoc amendment of its regulations to save in this Court its issuance of the construction permit. Ante, at 15 n. 5. I therefore concur in the Court’s decision. The Nuclear Regulatory Commission’s conduct in the course of this litigation, however, compels further comment.

A certain danger lurks in the ability of an agency to perfunctorily mold its regulations to conform to its instant needs. In the present case, regulations performed an important function of advising all interested parties of the factors that had to be satisfied before a license could be issued. If those conditions can be changed willy-nilly by the Commission after the hearing has been held and after adjudication has been made, the Commission is cut loose from its moorings, and no opponent of the licensing will be able to tender competent evidence bearing on the critical issues. Not just the Commission, but the entire federal bureaucracy is vested with a discretionary power, against the abuse of which the public needs protection. “ [A] dministrators must strive to do as much as they reasonably can do to develop and to make known the needed confinements of discretionary power through standards, principles, and rules.” K. Davis, Discretionary Justice 59 (1969). Confinement of discretionary power, however, cannot be obtained where rules can be changed and applied retroactively to affect a controversy.

For some years, the agency which was supposed to promote nuclear energy was also charged with the responsibility of protecting the public against its abuse. But a promoter is naturally shortsighted when it comes to the adverse effects of his project on the community. With the establishment of the Nuclear Regulatory Commission, Congress undertook to rectify this weakness in the control system by separating the promotion function from the function of safeguarding the public. But the power to change the rules after the contest has been concluded would once more put the promotion of nuclear energy ahead of the public’s safety.

Eminent scientists have been steadfast in opposing the growth of nuclear power plants in this Nation. The number who think nuclear power should be abandoned has been growing. The future of nuclear power in this country is not a policy matter for courts to decide, but those who oppose the promotion of nuclear power should have at least a chance to know what the issues are when a case is set down for hearing and adjudication, and to argue meaningfully about those issues. If the rules can be changed by the Commission at any time — even after the hearing is over — the protection afforded by the opposition of scientific and environmental groups is greatly weakened. Ad hoc rulemaking in those areas touching the public safety is to be looked upon with disfavor.

       Porter County Chapter of the Izaak Walton League of America, Inc.; Concerned Citizens Against Bailly Nuclear Site; Businessmen for the Public Interest, Inc.; James E. Newman; Mildred Warner; and George Hanks.
      NIPSCO, the State of Illinois, and the city of Gary, Ind., intervened before the Court of Appeals.

       We do not understand the Court of Appeals' discussion of the evidence regarding population distribution within Portage to imply an alternative ground for the holding that the agency violated its own regulations.

         In re Consumers Power Co., 5 A. E. C. 214, 218 (1972) (although political boundary of nearby city was within low-population zone, “the reduced population distance was acceptable” since “populous areas” of the city were farther removed from the reactor site than one and one-third times the low-population zone radius); In re Consolidated Edison Co., 5 A. E. C. 43, 45 (1972); cf. In re Southern California Edison Co. (San Onofre Station), RAI-74-12, pp. 957, 960 n. 7 (1974).

       The Court of Appeals’ opinion also notes that the boundaries of 1970 census enumeration districts, including an area within Portage’s political limits, lay less than a mile from the proposed reactor site. The location of these boundaries, however, without more, has no greater significance than the location of the corporate border.

       Our decision does not rely upon a revision of 10 CFR § 100.11 (a)(3), 40 Fed. Reg. 26526 (1975), published after the decision of the Court of Appeals by the Nuclear Regulatory Commission, which, pursuant to the Energy Reorganization Act of 1974, § 201, 88 Stat. 1242, 42 U. S. C. §5841 (1970 ed., Supp. IV), now discharges the licensing responsibility formerly exercised by the Atomic Energy Commission.

       The separation of promotional and regulatory functions was accomplished under the Energy Reorganization Act of 1974, 88 Stat. 1233, 42 U. S. C. § 5801 et seq. (1970 ed., Supp. IV). The legislation transferred the research and development functions of the AEC to the new Energy Research and Development Administration. § 5814 (c). The AEC’s regulatory functions became the responsibility of the Nuclear Regulatory Commission. §5841 (f). Also transferred to this new Commission were the responsibilities of the Atomic Safety and Licensing Board and the Atomic Safety and Licensing Appeal Board. § 5841 (g).
      The legislative history of the Act indicates that this division of functions was “a response to growing criticism that there is a basic conflict between the AEC’s regulation of the nuclear power industry and its development and promotion of new technology for the industry.” S. Rep. No. 93-980, p. 2 (1974). “The [Nuclear Regulatory Commission] will have solely regulatory responsibilities, in keeping with a basic purpose of this act to separate the regulatory functions of the Atomic Energy Commission from its developmental and promotional functions, which are transferred to [the Energy Research and Development Administration]Id., at 19.

      J. Gofman & A. Tamplin, Poisoned Power: The Case Against Nuclear Power Plants (1971); see Eord & Kendall, What Price Nuclear Power?, 10 Trial 11 (1974); Tamplin, Reacting to Reactors, 10 Trial 15 (1974); Hearings on AEC Licensing Procedure and Related Legislation before the Subcommittee on Legislation of the Joint Committee on Atomic Energy, 92d Cong., 1st Sess., pt. 1, pp. 294-302 (1971).


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Brennan,

license: Public Domain

text:
    ROSE, WARDEN v. HODGES et al.
    No. 75-139.
    Decided November 11, 1975
   Per Curiam.

Respondents Hodges and Lewis were convicted of committing murder in the perpetration of a rape in Memphis, Tenn., and sentenced to death by electrocution. On July 31, 1972, the Tennessee Court of Criminal Appeals affirmed the judgments of conviction but reversed and remanded the record to the trial court on the issue of punishment, declaring that “[t]he Supreme Court of the United States has decreed that the death sentence is contrary to the Eighth Amendment . . . Hodges v. State, 491 S. W. 2d 624, 628 (1972).

On August 7, 1972, the Governor of Tennessee commuted respondents’ death sentences to 99 years’ imprisonment. On August 8, 1972, the State (represented by petitioner here) filed a timely petition for rehearing in the Court of Criminal Appeals pursuant to Tenn. Code Ann. § 16-451 (Supp. 1974), which provides that such a petition must be filed within 15 days of the entry of the judgment.

The Court of Criminal Appeals then found the commutations by the Governor to be “valid and a proper exercise of executive authority,” citing Bowen v. State, 488 S. W. 2d 373 (Tenn. 1972), and held its remand “for naught,” thus affirming the convictions and the sentences, as modified, in full, 491 S. W. 2d, at 629. On March 5, 1973, the Supreme Court of Tennessee denied certiorari.

Respondents Hodges and Lewis then petitioned for habeas corpus in the Federal District Court asserting, inter alia, that their Fourteenth Amendment rights were violated by the illegal commutation of their sentences. The case was transferred to the Federal District Court for the Western District of Tennessee, which dismissed as to this issue for failure to exhaust state remedies. Respondents appealed to the United States Court of Appeals for the Sixth Circuit.

In a brief order, that court held that since the death sentences had been vacated at the time of the Governor’s commutation order, “there were ... no viable death sentences to commute” and therefore declared the commutations invalid.

Upon reconsideration, the court noted that the judgment of the Court of Criminal Appeals vacating the death penalties had been timely modified by that court to comply with the commutation order. However, it did not alter its earlier decision, except to note that respondents had exhausted their state remedies as to this point.

A necessary predicate for the granting of federal habeas relief to respondents is a determination by the federal court that their custody violates thé Constitution, laws, or treaties of the United States, 28 U. S. C. § 2241 ; Townsend v. Sain, 372 U. S. 293, 312 (1963). The one sentence in the opinion of the Court of Appeals dealing with the invalidity of the Governor’s commutations contains no reference to any provision of the Constitution, laws, or treaties of the United States or to any decision of this Court or any other court. Whether or not the sentences imposed upon respondents were subject to commutation by the Governor, and the extent of his authority under the circumstances of this case, are questions of Tennessee law which were resolved in favor of sustaining the action of the Governor by the Tennessee Court of Criminal Appeals in Hodges v. State, supra. It was not the province of a federal habeas court to re-examine these questions.

Respondents urge, in support of the° result reached by the Court of Appeals for the Sixth Circuit, that their Fourteenth and Sixth Amendment rights to jury trial have been infringed by the Tennessee proceedings. We reject these contentions. A jury had already determined their guilt and sentenced them to death.. The Governor commuted these sentences to a term of 99 years after this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972). Neither Furman nor any other holding of this Court requires that following such a commutation the defendant shall be entitled to have his sentence determined anew by a jury. If Tennessee chooses to allow the Governor to reduce a death penalty to a term of years without resort to further judicial proceedings, the United States Constitution affords no impediment to that choice. Dreyer v. Illinois, 187 U. S. 71 (1902). Cf. Schick v. Reed, 419 U. S. 256 (1974).

The motion of the respondents for leave to proceed in forma pauperis and the petition for certiorari are granted, and the judgment of the Court of Appeals is

Reversed.

Mr. Justice Douglas would deny certiorari.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins,

dissenting.

I dissent on two grounds: first, because the Court errs in reading the record to include a final holding of the Court of Appeals declaring the commutations to be invalid; and, second, because if there were such a final holding, summary disposition of the question of the validity of the commutations — certainly one of first impression in this Court — is particularly inappropriate.

That the “commutations” have not been finally declared invalid clearly emerges from the record of the proceedings in the District Court and in the Court of Appeals. The petition for habeas corpus alleged five errors by the state courts. Three (coerced confessions, prejudicial comments during voir dire, Hodge’s claim under Bruton v. United States, 391 U. S. 123 (1968)) attacked respondents’ convictions, the other two the sentences (invalid jury sentence and unconstitutional commutations). The District Court held that respondents had failed to exhaust state remedies on all of these issues except the alleged invalidity of ..the jury sentence; accordingly, the District Court issued a show-cause order “solely on the issue that the jury allegedly failed to specify the degree of murder in the verdicts.” Hodges v. Rose, No. C-73-442 (WD Tenn., Nov. 15, 1973). The State accordingly filed an answer dealing only with this issue, and the District Court decided only that issue, rejecting respondents’ claim on the merits. This question was therefore the only claim that was ripe for appeal; specifically, there was no decision of the District Court on the constitutionality of the commutations that was or could have been the subject of respondents’ appeal to the Court of Appeals.

Nevertheless, it is of course true that the initial opinion of the Sixth Circuit contains the following language:

“[The] commutation followed by some eight days an order of the Tennessee Court of Criminal Appeals vacating the order imposing the death penalty and remanding the case to the trial court for punishment determination in the light of Furman v. Georgia, 408 U. S. 238 [(1972)], and for the reason that there were therefore no viable death sentences to commute, we hold the purported commutation and the concomitant imposition of committed [sic] sentences for terms of 99 years invalid.” Hodges v. Rose, No. 74-1461 (CA6, Feb. 25, 1975). (Emphasis added.)

The same opinion goes on to affirm the decision on the merits of the only question decided by the District Court, namely, the jury-sentence issue, and then observes that the State had confessed error on the exhaustion point. Accordingly, the judgment was “for further proceedings consistent herewith.” This necessarily must have meant that the three constitutional attacks on the convictions should be addressed on the merits by the District Court. The sua sponte comments on the commutations thus made no sense since that issue would never arise if the convictions were set aside on any of the three grounds.

Not surprisingly, therefore, the State sought rehearing. The State dispositively argued, first, that the Sixth Circuit was precluded from addressing the commutation issue since the District Court had carefully confined its decision on the merits to the validity of the jury sentence. The State argued, second, that there had been no opportunity to argue the commutation question in the District Court and that no record had been made on the issue, and, third, the commutation issue had not been briefed in the Sixth Circuit. Fourth, and finally, the State argued — what surely must have been crystal clear— that the commutation question would never be reached if respondents prevailed on their challenge to the validity of their convictions. True, as a good lawyer’s would, the State’s petition for rehearing challenged in any event the soundness of the statement that the commutations were invalid. But the relief sought on rehearing was excision of the language quoted above and remand “to the District Court for consideration of all issues.”

The Court of Appeals obviously recognized its error. The opinion on rehearing, while not deleting the whole statement, did delete the language emphasized above and left only the factual statement of what had occurred:

“[The] commutation followed by some eight days an order by the Tennessee Court of Criminal Appeals vacating the [order imposing the] death penalty and remanding the case [to the trial court] for punishment determination in the light of Furman v. Georgia, 408 U. S. 238 [(1972)].” Hodges v. Rose, No. 74-1461 (CA6, June 10,1975).

Significantly the opinion on rehearing also squarely held that the District Court had erred in finding a failure to exhaust as to the commutation issue.

On this record, therefore, the only proper disposition is denial of the petition for certiorari. At the least, we should vacate and remand to the Sixth Circuit ior clarification of whether the validity of the commutations was addressed and decided.

In any event, summary disposition of the issue of the validity of the commutations is strikingly inappropriate. There is no record in the lower courts on the commutation issue, because the District Court limited the habeas proceeding to the validity of the jury sentence. More importantly, the issue is one of first impression in this Court, and it surely merits briefing and oral argument. For example, I find troublesome the question whether (since there existed no viable death sentences to commute) the Governor’s action should he treated as imposing the 99-year sentences without affording respondents constitutionally secured safeguards required when sentences are imposed. If the Governor had not acted, resentencing would have been by a jury at a proceeding highlighted by the usual safeguards, none of which applied to the Governor’s action. The question is plainly not insubstantial; in Mempa v. Rhay, 389 U. S. 128 (1967), we held that constitutional safeguards (there the right to counsel) applied to the sentencing stage. Was the commutation in this case actually the sentencing stage since no death sentence existed to commute when the Governor acted? Also, the due process dimensions of the right to present evidence relevant to sentencing was left open in McGautha v. California, 402 U. S. 183, 218-220 (1971). If respondents were “sentenced” by the Governor, were they denied due process when not afforded that opportunity, even assuming that the Federal Constitution permits States to adopt executive in preference to judicial sentencing? I agree that the Constitution allows Tennessee to empower the Governor to reduce a death penalty to a term of years without resort to judicial proceedings. But the Court's disposition assumes, without any in-depth analysis, that the instant case involves such “commutations" despite the fact that respondents' death sentences were voided and were therefore nonexistent when the Governor acted.

I would deny the petition for certiorari on my view that there is no holding of the Court of Appeals regarding the commutations to be reviewed. In any event, rather than disposing of the case summarily, the Court should grant the petition and set the case for oral argument.

       This order would have returned respondents to the trial court for resentencing to between 20 years and life as a jury might determine. Tenn. Code Ann. §39-2405 (1956).

       The dissent would have us probe beneath the surface of the opinions below in search of a logical foundation. In cases where the holding of the court below is unclear, such a technique may be required. Here, however, that court clearly “hold[s] the purported commutation . . . invalid.” In its second opinion it reversed the District Court on the exhaustion question and otherwise specifically reaffirmed the earlier order. We are forced to take the Court of Appeals at its word.

       Two other panels of the same court have correctly recognized, in cases virtually identical to this one, that no federal constitutional question was presented by such a commutation. Smith v. Rose, No. 74-1753 (Nov. 15, 1974); Bowen v. Rose, No. 74-1087 (Mar. 19, 1974).

       Neither of the decisions cited by the Court is apposite. Dreyer v. Illinois, 187 U. S. 71 (1902), held merely that the Due Process Clause of the Fourteenth Amendment does not bar executive exercise of sentencing powers. Id., at 84. Schick v. Reed, 419 U. S. 256 (1974), where the President reduced petitioner’s death penalty to life imprisonment, was not a case where the death sentence had been judicially voided when the President acted.

       The eases cited by thé Court in which panels in the Sixth Circuit have upheld similar commutations in other cases, ante, at 21 n. 3, serve to substantiate my reading of the record. Judge Miller was a member of the panel in Smith v. Rose, No. 74-1753 (CA6, Nov. 15, 1974), and Judge Peck participated in Bowen v. Rose, No. 74-1087 (CA6, Mar. 19, 1974). Both judges were also on the panel in the instant case, and the alleged inconsistency among the panel decisions was noted in the State’s petition for rehearing. The Court’s implicit suggestion that these federal judges issued conflicting decisions, without explanation, indicates the inaccuracy of the Court’s view of the record.
      Moreover, neither of the cited unpublished panel opinions explicitly states that the commutation being upheld was issued after a death sentence had been judicially voided. Parenthetically, the Sixth Circuit’s Rule 11 prohibits citation of unpublished opinions. Am I to understand that this Court is not called upon to respect that prohibition?


author: Mr. Justice Blackmun

text:
    TRANSAMERICAN FREIGHT LINES, INC. v. BRADA MILLER FREIGHT SYSTEMS, INC., et al.
    No. 74-54.
    Argued October 8, 1975
    Decided November 12, 1975

      Blackmun, J.. delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. Douglas, J., concurred in the judgment.

      Alphonso H. Voorhees argued the cause and filed briefs for petitioner.

      Joseph L. Leritz argued the cause and filed a brief for respondent Brada Miller Freight Lines, Inc.

        Solicitor General Bork, Assistant Attorney General Kauper, Carl D. Lawson, Fritz R. Kahn, and Betty Jo Christian filed a brief for the United States et al. as amici curiae urging reversal.

   Mr. Justice Blackmun

delivered the opinion of the Court.

In this case we are concerned with the “control and responsibility” requirement of the Interstate Commerce Commission’s equipment leasing regulation, 49 CFR § 1057.3 (a) (1975), applicable to authorized motor carriers. The question before us is narrow: Does the control-and-responsibility requirement prohibit, as against public policy, an agreement between carriers by which the lessor indemnifies the lessee for loss caused by the negligence of the lessor?

I

On January 19, 1968, respondent Brada Miller Freight Systems, Inc., entered into an agreement with petitioner Transamerican Freight Lines, Inc., whereby Brada Miller, as lessor, leased to Transamerican, as lessee, a tractor and trailer operated by driver H. L. Hardrick for a trip from Detroit, Mich., to Kansas City, Mo. Transamerican held authority from the ICC to serve those points, and the leased equipment was to be operated over Trans-american’s routes “without deviation.” Brada Miller represented that, as § 1057.3 (a) specifies, Kansas City was “in the direction of a point” which it was “authorized to serve.” The lease recited that the equipment was “to be operated only by a competent employee” of Brada Miller, “in which event said employee . . . shall be the representative of” Brada Miller. App. 90; Brief for Petitioner A-2. It further provided:

“4. It is mutually understood and agreed, that [Transamerican] during the term of this lease shall have the control and responsibility for the operation of said equipment in respect to the public, shippers and Interstate Commerce Commission for such period that said equipment is operated under the terms of this lease as provided in Paragraph 1 hereof.
“9. . . . [Brada Miller] hereby agrees to indemnify and save harmless [Transamerican] from any and all claims, suits, losses, fines or other expenses arising out of, based upon or incurred because of injury to any person or persons, or damage to property sustained or which may be alleged to have been sustained by reason of any negligence or alleged negligence on the part of [Brada Miller], its agents, servants or employees .... Nothing in this Paragraph 9 contained shall be construed to in anywise limit the liability of [Transamerican] to the public in connection with the use of said equipment under this Agreement.” Ibid.

Hardrick was a Brada Miller driver and employee. Pursuant to the Commission’s regulation, 49 CFR § 1057.4 (c) (1975), Transamerican, before the trip, made the required inspection of the equipment and filed a report that it was safe. App. 66-67, 89, 90. It checked the medical report on Hardrick. Id., at 75. It affixed to the door of the tractor an identification placard stating that it was operated by Transamerican and reciting its number assigned by the ICC; the placard remained so affixed throughout the trip. Id., at 55-58, 63-65.

On the way to Kansas City, and near Smithboro, Ill., the vehicle driven by Hardrick and an automobile operated by Sandra Wear collided. Wear was injured. Transamerican reported the accident on the ICC’s prescribed form. Wear later filed suit in the United States District Court for the Southern District of Illinois against both Brada Miller and Transamerican. She alleged that the accident was caused by Hardrick’s negligence. Brada Miller and Transamerican filed cross-claims against each other in that litigation. During the trial Wear settled her claim against Transamerican for $80,000 and dismissed her cause of action with prejudice. Transameri-can then amended its cross-claim by pleading the settlement and seeking recovery from Brada Miller for the settlement amount plus the expenses incurred in defending the Wear action.

Brada Miller in due course moved for summary judgment against Transamerican. It did so on the ground that “the pleadings, depositions, answers to interrogatories and exhibits on file show that the indemnity provision of the trip lease ... is contrary to public policy and is unenforceable.” Id., at 91.

The District Court granted Brada Miller’s motion. In an unreported opinion, the court cited § 204 (e) of the Interstate Commerce Act, 24 Stat. 379, as added, 49 Stat. 543, as amended, 49 U. S. C. § 304 (e), which authorizes the Commission to prescribe regulations with respect to motor carriers’ use, under leases, of motor vehicles not owned by them, and § 1057.4 (a) (4) of the regulations, issued pursuant to that authority, as governing the lease between Brada Miller and Transamerican. It then followed what it regarded as precedent that had been established by its controlling court in Alford v. Major, 470 F. 2d 132 (CA7 1972). In Alford the Seventh Circuit had concluded:

“Therefore, since the indemnification clause would permit Major to circumvent the regulations’ requirement that leased carriers exert actual control over the leased equipment and the borrowed drivers, we find that the indemnification clause is unenforceable.” Id., at 135.

The Court of Appeals affirmed with an unpublished opinion. Wear v. Transamerican Freight Lines, 497 F. 2d 926 (CA7 1974). It, too, relied on 49 U. S. C. § 304 (e), on 49 CFR § 1057.4, and on its earlier Alford case. It emphasized its observation in Alford, 470 F. 2d, at 135, quoting the trial court in that case, that the intent of the regulations “ 'was to make sure that licensed carriers would be responsible in fact, as well as in law, for the maintenance of leased equipment and the supervision of borrowed drivers.’ ” Pet. for Cert. A-10. It felt that “control and cost bearing” were related, and that the regulations required the party with the duty of responsibility and control under, the statute “to internalize the cost of any breach of this duty.” Id., at A-12. It reasoned that inasmuch as Brada Miller had agreed to bear the costs of its own negligence, it had assumed control and responsibility and that the indemnification clause therefore was ineffective.

Because the Court of Appeals asserted, ibid., that Alford could not be distinguished from Allstate Ins. Co. v. Alterman Transport Lines, Inc., 465 F. 2d 710 (CA5 1972), we granted certiorari. 420 U. S. 971 (1975).

II

The issue before us, therefore, is whether the indemnification provision in the lease agreement between Brada Miller and Transamerican violates the Commission's applicable regulation and, as a consequence, is contrary to public policy and unenforceable. In order to place the issue in proper perspective, we note, initially, certain general aspects of motor carrier operations.

Demand for a motor carrier's services may fluctuate seasonally or day by day. Keeping expensive equipment operating at capacity, and avoiding the waste of resources attendant upon empty backruns and idleness, are necessary and continuing objectives. It is natural, therefore, that a carrier that finds itself short of equipment necessary to meet an immediate demand will seek the use of a vehicle not then required by another carrier for its operations, and the latter will be pleased to accommodate. Each is thereby advantaged.

A lease of equipment, which is permissible under defined circumstances, must be distinguished, however, from a sharing or lending of operating authority, which is not permitted. Under the Motor Carrier Act, 1935, 49 Stat. 543, as amended, 49 U. S. C. §§ 301-327, only a properly certificated carrier may haul freight in interstate or foreign commerce. Each certificate is limited as to routes, destinations, and classes of freight. 49 U. S. C. § 308 (a). See Nelson, Inc. v. United States, 355 U. S. 554 (1958); Kreider Truck Service, Inc., Extension—Lard Oils, 82 M. C. C. 565 (1960). As a consequence, the Commission has developed and designed its responsibility- and-control regulations in order to prevent a sharing of operating authority under the guise of a lease of equipment. With only special exceptions, the regulations require the lessee to ship under its own bill of lading, to compensate the lessor on an established basis, to inspect the equipment, and to assume full control and responsibility for the operation. 49 CFR §§ 1057.3 (a) and 1057.4. The regulations, however, do not require the lessee itself to operate the equipment; the lessor may perform that task by furnishing the driver with the equipment. But the lessee must assume the responsibility for the shipment and have full authority to control it.

Ill

The regulations were formulated in the 1950’s in the rulemaking procedure known as Ex parte No. MC-43. See Lease and Interchange of Vehicles by Motor Carriers, 51 M. C. C. 461 (1950); 52 M. C. C. 675 (1951); 64 M. C. C. 361 (1955); and 68 M. C. C. 553 (1956). The initial formulation was sustained, against a variety of attacks, in American Trucking Assns. v. United States, 344 U. S. 298 (1953). There the Court outlined as background “the existing conditions of the motor truck industry and its regulation.” Id., at 302. It referred to the development of the practice by authorized carriers of using nonowned equipment by interchange and by leasing. Id., at 303. “The use of nonowned equipment by authorized carriers is not illegal, either under the Act or the rules under consideration.” Id., at 303-304 (footnote omitted). But it noted that the record in that case contained proof of abuses and evasions of certificated authority and of safety requirements, difficulties in the fixing of the lessee’s responsibility, and other problems. Id., at 304-306.

After a detailed examination of the proceedings of the Commission that resulted in the promulgation of the protective provisions at issue in this case, the Court observed: “The purpose of the rules is to protect the industry from practices detrimental to the maintenance of sound transportation services consistent with the regulatory system,” and to assure safety of operation. Id., at 310. “So the rules in question are aimed at conditions which may directly frustrate the success of the regulation undertaken by Congress.” Id., at 311. It is apparent, therefore, that sound transportation services and the elimination of the problem of a transfer of operating authority, with its attendant difficulties of enforcing safety requirements and of fixing financial responsibility for damage and injuries to shippers and members of the public, were the significant aims and guideposts in the development of the comprehensive rules.

It is likewise apparent that an important feature of the remedy the Commission devised to eliminate the undesirable practices was the rule that any lease in which the lessor furnished the driver was to be one for 30 days or more. See 49 CFR §§ 1057.3 (a) and 1057.4 (a)(3). This served to eliminate the “hard core of the problem,” that is, “the owner-operator trip lease and its attendant evils.” 68 M. C. C., at 555. It was effectuated by the provisions, some mentioned above, that the lease be in writing and negotiated in advance; that the equipment be identified as that of the lessee; that the lease provide for payment to the lessor at a specified rate; that the lessee conduct a safety inspection before taking possession; and that the lessee have control and responsibility for the operation of the equipment.

Obviously, the inspection requirement of § 1057.4 (c), applicable to carriers to which § 1057.3 (a) relates, is of distinct importance. It is addressed in part to any apprehension that a lessor might furnish equipment less reliable than that of the certificated lessee. And the requirement that the lessee assume control and responsibility tends to assure that a party directly responsible to the Commission is in actual charge of the operation.

IV

In light of this background — the early conditions in the industry, the problems that existed, the rules that were evolved to resolve those problems, and the purpose of the rules — we turn specifically to the indemnification clause in the Brada Miller-Transamerican lease.

A. Whether the presence of an indemnification clause conflicts with the lease's further provision, required by § 1057.3 (a), that the lessee shall have full operational control and responsibility, was a question not directly addressed in Ex parte No. MC-48. We readily conclude, however, that the two provisions are not in conflict and that the indemnification clause does not impinge upon the requirements of the lease and of § 1057.3 (a) that operational control and responsibility be in the lessee. Paragraph 4 of the lease is, of course, express and clear. The parties agreed in writing that “the control and responsibility for the operation of said equipment” were in Transamerican, as lessee. This is what § 1057.3 (a) requires and it is all that it formally requires. Moreover, added to the bare words of assumption of control and responsibility, was the specification that this was directed “to the public, shippers and Interstate Commerce Commission.” The separate indemnification clause in the subsequent paragraph 9 of the lease did not affect this basic responsibility of the lessee to the public; it affected only the relationship between the lessee and the lessor. The final sentence of paragraph 9 made this clear:

“Nothing in this paragraph 9 contained shall be construed to in anywise limit the liability of [Trans-american] to the public in connection with the use of said equipment under this Agreement.”

And in this very case it was Transamerican which defended the Wear suit and settled it.

It is to be acknowledged, to be sure, that the lessor’s furnishing of a driver allows an aspect of control, in a sense, to remain in the lessor. But this is ministerial control, not control of the kind with which the Commission was concerned in Ex parte No. MC-43. Its concern, as we have noted, was with operating authority, with routes and destinations and classes of freight, with the integrity of certifications, and with that ultimate control in the lessee that makes and keeps it responsible to the public, the shipper, and the Commission. The Commission observed:

“It now seems to be accepted that when an authorized carrier furnishes service in vehicles owned and operated by others, he must control the service to the same extent as if he owned the vehicles, but need control the vehicles only to the extent necessary to be responsible to the shipper, the public, and this Commission for the transportation.” 52 M. C. C., at 681.

The regulations do not expressly prohibit an indemnification provision in the agreement between the lessor and the lessee. In fact, they neither sanction nor forbid it. It would seem to follow, then, that the mere presence of a clause such as the one here — that the lessor is to bear the burden of its own negligence — does not, in and of itself, offend the regulations so long as the lessee does not absolve itself from the duties to the public and to shippers imposed upon it by the Commission’s regulations. This is not to say, of course, that the presence of an indemnification clause, or its character, may not be a factor to be considered in determining whether a particular arrangement between carriers is an illegal sharing of operating authority or is a legal lease of equipment.

The Commission, on occasion, has considered an indemnification clause as one element, among others, that may demonstrate lack of control and responsibility in the lessee. See Tanksley Transfer Co. Extension— Points in Four States, 110 M. C. C. 674, 678-679 (1969); Diamond Transportation System, Inc., Extension—Wisconsin and Oklahoma Origins, 117 M. C. C. 706, 712-713 (1973). But the Commission has never condemned the indemnification clause in isolation.

Although one party is required by law to have control and responsibility for conditions of the vehicle, and to bear the consequences of any negligence, the party responsible in law to the injured or damaged person may seek indemnity from the party responsible in fact. The indemnification agreement violates the Commission rules only if accompanied by other indicia demonstrating that the lessor was in control of the service provided as well as of the physical operation of the vehicle. But the clause in isolation — as framed by the issue before the District Court on the motion for summary judgment, and before the Court of Appeals, and now before us— does not do so.

B. We similarly conclude that the indemnification clause by itself does not conflict with the regulations’ safety provisions. Safety in motor vehicle operation, of course, was an important concern of the Commission in its development of the equipment-leasing regulations. American Trucking Assns. v. United States, 344 U. S., at 305; 52 M. C. C., at 686-696. This concern is reflected in the provisions of §§ 1057.4 (c) and 1057.4 (e) relating, respectively, to vehicle inspections and driver familiarity with safety regulations. These provisions apply regardless of the existence of an indemnification agreement, and the lessee may fully comply with the requirements of the regulations despite its having contracted for indemnification.

An indemnification provision with respect to the lessor’s negligence does not necessarily tend to lessen operational safety. On the contrary, it may increase it. The lessor, as a general rule, is the party more familiar with the equipment it leases and with the experience, ability, and record of the driver it furnishes. An agreement placing the ultimate financial responsibility upon the negligent lessor thus may have a tendency to provide greater protection to the public and to shippers. At the same time, the lessee’s control and responsibility may then become more meaningful. It may also be said that the indemnification provision produces an additional source of funds for the one who is damaged or injured. These, of course, are factors that are pertinent in the evaluation of administrative policy; they are not now for this Court to evaluate. We hold only that the presence in an equipment lease of an indemnification clause directed to the lessor’s negligence is not in conflict with the safety concerns of the Commission or with the regulations it has promulgated.

We utter a word of caution: our decision is not to be regarded as an indication that the Commission, if it so chooses upon study of the problem, may not one day regulate or even proscribe indemnification as between lessee and lessor. We merely hold that the present regulations may not be so interpreted. See Chicago, R. I. & P. R. Co. v. Chicago, B. & Q. R. Co., 437 F. 2d 6, 9-10 (CA7), cert. denied, 402 U. S. 996 (1971).

We therefore find ourselves in disagreement with the Court of Appeals. We emphasize that our disagreement must- be viewed in the light of the narrow character of the Court of Appeals’ holding to the effect that the indemnification clause in this particular agreement, in isolation, served to circumvent the regulations and was against public policy and was unenforceable. It is with that holding that we disagree and we reverse. Other issues raised by Transamerican’s cross-claim and Brada Miller’s answer thereto, as the parties recognize, remain undetermined. Among these, seemingly, are the questions whether the negligence that caused Wear’s injury was that of Brada Miller, and whether the agreement, as a whole, was a legal lease of equipment or was an illegal sharing of operating authority. We express no view as to those issues; they are to be resolved upon remand.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

It is so ordered.

Mr. Justice Douglas concurs in the judgment.

      The pertinent phrase in 49 CFR § 1057.3 (a) (1975) is “control and responsibility for the operation of the equipment.” Section 1057.3 (a) reads in full as follows:
      “The provisions of § 1057.4, except paragraphs (c) and (d), relative to inspection and identification of equipment, shall not apply:
      “(a) Equipment used in the direction of a point which lessor is authorized to serve. To equipment owned or held under a lease of 30 days or more by an authorized carrier and regularly used by it in the service authorized, and leased by it to another authorized carrier for transportation in the direction of a point which lessor is authorized to serve: Provided, That the two carriers have first agreed in writing that control and responsibility for the operation of the equipment shall be that of the lessee from the time the equipment passes the inspection required to be made by lessee or its representative under § 1057.4 (c) until such time as the lessor or its representative shall give to the lessee or its representative a receipt specifically identifying the equipment and stating the date and the time of day possession thereof is retaken or until such time as the required inspection is completed by another authorized carrier taking possession of the equipment in an interchange of equipment where such use is contemplated, such writing to be signed by the parties or their duly authorized regular employees or agents, and a copy thereof carried in the equipment while the equipment is in the possession of the lessee.”
      In § 1057.4 (a) (4), relating to equipment other than that exchanged in interstate service and other than that leased by one authorized carrier to another, the parallel provision is “exclusive possession, control, and use of the equipment, and . . . the complete assumption of responsibility in respect thereto.”

       At the time, Brada Miller itself held the equipment under a lease dated November 1967.

       The order of dismissal preserved the rights of Transamerican in its cross-claim against Brada Miller. Diversity of citizenship remained after the settlement.

       “Subject to the provisions of subsection (f) [setting forth exceptions not material here] of this section, the Commission is authorized to prescribe, with respect to the use by motor carriers (under leases, contracts, or other arrangements) of motor vehicles not owned by them, in the furnishing of transportation of property—
      “(1) regulations requiring that any such lease, contract, or other arrangement shall be in writing and be signed by the parties thereto, shall specify the period during which it is to be in effect, and shall specify the compensation to be paid by the motor carrier, and requiring that during the entire period of any such lease, contract, or other arrangement a copy thereof shall be carried in each motor vehicle covered thereby; and
      “(2) such other regulations as may be reasonably necessary in order to assure that while motor vehicles are being so used the motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance with applicable law and regulations, as if they were the owners of such vehicles, including the requirements prescribed by or under the provisions of this chapter with respect to safety of operation and equipment and inspection thereof.”

       Under the facts, this appears to be an inadvertent reference. Section 1057.3 of the regulations states that the cited § 1057.4, “except paragraphs (c) and (d)” thereof, “shall not apply” to certain equipment, such as the tractor and trailer in question, leased by one authorized carrier to another authorized carrier, provided that the carriers “have first agreed in writing that control and responsibility for the operation of the equipment shall be that of the lessee.” See n. 1, supra. Brada Miller and Transamerican were authorized carriers and they had made the specified agreement. The section’s proviso, however, in substance is the same as the parallel provision in § 1057.4 (a) (4), cited by the District Court. The miscitation, therefore, is of no significance here.

       Despite the presence of some distinguishing features, and despite some attempts to distinguish, cases seemingly consistent with the decision below are Denver Midwest Motor Freight, Inc. v. Busboom Trucking, Inc., 190 Neb. 231, 207 N. W. 2d 368 (1973), and Gordon Leasing Co. v. Navajo Freight Lines, 130 N. J. Super. 290, 326 A. 2d 114 (1974). Seemingly opposed, in addition to Alterman, are Carolina Freight Carriers Corp. v. Pitt County Transportation Co., 492 F. 2d 243 (CA4 1974), cert. pending, No. 73-1750; Indiana Refrigerator Lines, Inc. v. Dalton, 516 F. 2d 795 (CA6 1975), cert. pending, No. 75-211; Indiana Ins. Co. v. Parr Trucking Service, Inc., 510 F. 2d 490, 494 (CA6 1975); Jones Truck Lines, Inc. v. Ryder Truck Lines, Inc., 507 F. 2d 100 (CA6 1974), pet. for cert. pending, No. 74-973; Cooper-Jarrett, Inc. v. J. Miller Corp., 70 Misc. 2d 88, 332 N. Y. S. 2d 177 (1972); Newsome v. Surratt, 237 N. C. 297, 74 S. E. 2d 732 (1953); Continental Ins. Co. v. Daily Express, Inc., 68 Wis. 2d 581, 229 N. W. 2d 617 (1975). See General Expressways, Inc. v. Schreiber Freight Lines, Inc., 377 F. Supp. 1159 (ND Ill. 1974), where a District Court in the Seventh Circuit reached the conclusion that the indemnification agreement was not unenforceable as against public policy. See also Watkins Motor Lines, Inc. v. Zero Refrigerated Lines, 381 F. Supp. 363 (ND Ill. 1974), aff’d, 525 F. 2d 538 (CA7 1975), involving an indemnification contract that accompanied an interchange agreement. The Seventh Circuit itself concluded that the indemnification agreement “serves a useful purpose and must be upheld.” Id., at 540. The Circuit’s earlier contrary decision in Alford, it was felt, was “inapposite.”

       The Commission and the United States in their joint brief as amici curiae submit that the indemnification clause by itself is not in violation of the regulations. They acknowledge that the current regulations do not specifically determine the issue before us; that on some occasion in the future the Commission may consider the promulgation of rules that bear upon indemnification agreements; and that, if so, it is possible that the Commission may come to one conclusion with respect to a provision protecting the lessee against the consequences of its own negligence, and to an opposite conclusion with respect -to .a provision relating to the negligence of the lessor. We note the Commission’s submission here in view of the longstanding and recognized rule of deference. Bowles v. Seminole Rock Co., 325 U. S. 410, 414 (1945); Udall v. Tallman, 380 U. S. 1, 16-17 (1965).


author: Per Curiam.

text:
    TURNER v. DEPARTMENT OF EMPLOYMENT SECURITY OF UTAH et al.
    No. 74-1312.
    Decided November 17, 1975
   Per Curiam.

The petitioner, Mary Ann Turner, challenges the constitutionality of a provision of Utah law that makes pregnant women ineligible for unemployment benefits for a period extending from 12 weeks before the expected date of childbirth until a date six weeks after childbirth. Utah Code Ann. § 35-4^5 (h) (1) (1974).

The petitioner was separated involuntarily from her employment on November 3, 1972, for reasons unrelated to her pregnancy. In due course she applied for unemployment compensation and received benefits until March 11, 1973, 12 weeks prior to the expected date of the birth of her child. Relying upon § 35-4-5 (h) (1), the respondent Department of Employment Security ruled that she was disqualified from receiving any further payments after that date and until six weeks after the date of her child’s birth. Thereafter, Mrs. Turner worked intermittently as a temporary clerical employee. After exhausting all available administrative remedies, the petitioner appealed the respondents’ rulings to the Utah Supreme Court, claiming that the statutory provision deprived her of protections guaranteed by the Fourteenth Amendment. The state court rejected her contentions, ruling that the provision violated no constitutional guarantee. 531 P. 2d 870. The petition for certiorari now before us brings the constitutional issues here.

The Utah unemployment compensation system grants benefits to persons who are unemployed and are available for employment. Utah Code Ann. § 35-4-4 (c) (1974). One provision of the statute makes a woman ineligible to receive benefits “during any week of unemployment when it is found by the commission that her total or partial unemployment is due to pregnancy.” § 35-4-5 (h)(2). In contrast to this requirement of an individualized determination of ineligibility, the challenged provision establishes a blanket disqualification during an 18-week period immediately preceding and following childbirth. § 35-4-5 (h)(1). The Utah Supreme Court’s opinion makes clear that the challenged ineligibility provision rests on a conclusive presumption that women are “unable to work” during the 18-week period because of pregnancy and childbirth. See 531 P. 2d, at 871.

The presumption of incapacity and unavailability for employment created by the challenged provision is virtually identical to the presumption found unconstitutional in Cleveland Board of Education v. LaFleur, 414 U. S. 632. In LaFleur, the Court held that a school board's mandatory maternity leave rule which required a teacher to quit her job several months before the expected birth of her child and prohibited her return to work until three months after childbirth violated the Fourteenth Amendment. Noting that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause,” 414 U. S., at 639, the Court held that the Constitution required a more individualized approach to the question of the teacher's physical capacity to continue her employment during pregnancy and resume her duties after childbirth since “the ability of any particular pregnant woman to continue at work past any fixed time in her pregnancy is very much an individual matter.” Id., at 645.

It cannot be doubted that a substantial number of women are fully capable of working well into their last trimester of pregnancy and of resuming employment shortly after childbirth. In this very case Mrs. Turner was employed intermittently as a clerical worker for portions of the 18-week period during which she was conclusively presumed to be incapacitated. The Fourteenth Amendment requires that unemployment compensation boards no less than school boards must achieve legitimate state ends through more individualized means when basic human liberties are at stake. We conclude that the Utah unemployment compensation statute's incorporation of a conclusive presumption of incapacity during so long a period before and after childbirth is constitutionally invalid under the principles of the LaFleur case.

Accordingly, the writ of certiorari is granted, the judgment is vacated, and the case is remanded to the Supreme Court of Utah for further proceedings not inconsistent with this opinion.

So ordered.

The Chief Justice and Mr. Justice Biackmun would not summarily vacate the judgment of the Supreme Court of Utah. Instead, they would grant cer-tiorari and set the case for full briefing and oral argument.

Mr. Justice Rehnquist dissents.

      The respondents contend that the challenged provision is a limitation on the coverage of the Utah unemployment compensation system and not a presumption of unavailability for employment based on pregnancy. This characterization of the statute, advanced in an attempt to analogize the provision to the law upheld in Geduldig v. Aiello, 417 U. S. 484, conflicts with the respondents’ argument to the Utah Supreme Court. Before that court respondents claimed that “ ‘near term pregnancy is an endemic condition relating to employability.’ ” The Utah Supreme Court’s decision is premised on the impact of pregnancy on a woman’s ability to work. Its opinion makes no mention of coverage limitations or insurance principles central to Aiello. The construction of the statute by the State’s highest court thus undermines the respondents’ belated claim that the provision can be analogized to the law sustained in Aiello.


author: Per Curiam. Mr. Justice Brennan, Mr. Justice Stewart,

text:
    ROSE, WARDEN v. LOCKE
    No. 74-1451.
    Decided November 17, 1975
   Per Curiam.

Respondent was convicted in the Criminal Court for Knox County, Tenn., of having committed a “crime against nature" in violation of Tenn. Code Ann. § 39-707 (1955). The evidence showed that he had entered the apartment of a female neighbor late at night on the pretext of using the telephone. Once inside, he produced a butcher knife, forced his neighbor to partially disrobe, and compelled her to submit to his twice performing cunnilingus upon her. He was sentenced to five to seven years’ imprisonment. The Tennessee Court of Criminal Appeals affirmed the conviction, rejecting respondent’s claim that the Tennessee statute’s proscription of “crimes against nature” did not encompass cunnilingus, as well as his contention that the statute was unconstitutionally vague. 501 S. W. 2d 826 (1973). The Supreme Court of Tennessee denied review.

Respondent renewed his constitutional claim in a petition for a writ of habeas corpus filed in the District Court for the Eastern District of Tennessee. The District Court denied respondent’s petition, holding that when considered in light of previous interpretations by the courts of Tennessee, § 39-707 was “not unconstitutionally vague nor impermissibly overbroad.”

Respondent appealed to the Court of Appeals for the Sixth Circuit, and that court sustained his constitutional challenge. Believing that the statutory term “crimes against nature” could not “in and of itself withstand a charge of unconstitutional vagueness” and being unable to find any Tennessee opinion previously applying the statute to the act of cunnilingus, the Court of Appeals held that the statute failed to give respondent “fair warning.” 514 F. 2d 570 (1975).

It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual “criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U. S. 612, 617 (1954); see Wainwright v. Stone, 414 U. S. 21, 22 (1973). But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for “[i]n most English words and phrases there lurk uncertainties.” Robinson v. United States, 324 U. S. 282, 286 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. Cf. Nash v. United States, 229 U. S. 373 (1913); United States v. National Dairy Corp., 372 U. S. 29 (1963). All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.

Viewed against this standard, the phrase “crimes against nature” is no more vague than many other terms used to describe criminal offenses at common law and now codified in state and federal penal codes. The phrase has been in use among English-speaking people for many centuries, see 4 W. Blackstone, Commentaries *216, and a substantial number of jurisdictions in this country continue to utilize it. See Note, The Crimes Against Nature, 16 J. Pub. L. 159, 162 n. 19 (1967). Anyone who cared to do so could certainly determine what particular acts have been considered crimes against nature, and there can be no contention that the respondent’s acts were ones never before considered as such. See, e. g., Comer v. State, 21 Ga. App. 306, 94 S. E. 314 (1917); State v. Townsend, 145 Me. 384, 71 A. 2d 517 (1950).

Respondent argued that the vice in the Tennessee statute derives from the fact that jurisdictions differ as to whether “crime against nature” is to be narrowly applied to only those acts constituting the common-law offense of sodomy, or is to be broadly interpreted to encompass additional forms of sexual aberration. We do not understand him to contend that the broad interpretation is itself impermissibly vague; nor do we think he could successfully do so. We have twice before upheld statutes against similar challenges. In State v. Crawford, 478. S. W. 2d 314 (1972), the Supreme Court of Missouri rejected a claim that its crime-against-nature statute was so devoid of definition as to be unconstitutional, pointing out that its provision was derived from early English law and broadly embraced sodomy, bestiality, buggery, fellatio, and cunnilingus within its terms. We dismissed the appeal from this judgment as failing to present a substantial federal question. Crawford v. Missouri, 409 U. S. 811 (1972); see Hicks v. Miranda, 422 U. S. 332, 343-345 (1975). And in Wainwright v. Stone, supra, we held that a Florida statute proscribing “the abominable and detestable crime against nature” was not unconstitutionally vague, despite the fact that the State Supreme Court had recently changed its mind about the statute’s permissible scope.

The Court of Appeals, relying on language in Stone, apparently believed these cases turned upon the fact that the state courts had previously construed their statutes to cover the same acts with which the defendants therein were charged. But although Stone demonstrated that the existence of previous applications of a particular statute to one set of facts forecloses lack-of-fair-warning challenges to subsequent prosecutions of factually identical conduct, it did not hold that such applications were a prerequisite to a statute’s withstanding constitutional attack. If that were the case it would be extremely difficult ever to mount an effective prosecution based upon the broader of two reasonable constructions of newly enacted or previously unapplied statutes, even though a neighboring jurisdiction had been applying the broader construction of its identically worded provision for years.

Respondent seems to argue instead that because some jurisdictions have taken a narrow view of “crime against nature” and some a broader interpretation, it could not be determined which approach Tennessee would take, making it therefore impossible for him to know if § 39-707 covered forced cunnilingus. But even assuming the correctness of such an argument if there were no indication which interpretation Tennessee might adopt, it is not available here. Respondent is simply mistaken in his view of Tennessee law. As early as 1955 Tennessee had expressly rejected a claim that “crime against nature” did not cover fellatio, repudiating those jurisdictions which had taken a “narrow restrictive definition of the offense.” Fisher v. State, 197 Tenn. 594, 277 S. W. 2d 340. And four years later the Tennessee Supreme Court reiterated its view of the coverage intended by § 39-707. Emphasizing that the Tennessee statute’s proscription encompasses the broad meaning, the court quoted from a Maine decision it had earlier cited with approval to the effect that “ ‘the prohibition brings all unnatural copulation with mankind or a beast, including sodomy, within its scope.’ ” Sherrill v. State, 204 Tenn. 427, 429, 321 S. W. 2d 811, 812 (1959), quoting from State v. Cyr, 135 Me. 513, 198 A. 743 (1938). And the Maine statute, which the Tennessee court had at that point twice equated with its own, had been applied to cunnilingus before either Tennessee decision. State v. Townsend, supra. Thus, we think the Tennessee Supreme Court had given sufficiently clear notice that § 39-707 would receive the broader of two plausible interpretations, and would be applied to acts such as those committed here when such a case arose.

This also serves to distinguish this case from Bouie v. City of Columbia, 378 U. S. 347 (1964), a decision the Court of Appeals thought controlling. In Bouie, the Court held that an unforeseeable judicial enlargement of a criminal statute narrow and precise on its face violated the Due Process Clause. It pointed out that such a process may lull “the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction.'3 378 U. S., at 352. But as we have noted, respondent can make no claim that § 39-707 afforded no notice that his conduct might be within its scope. Other jurisdictions had already reasonably construed identical statutory language to apply to such acts. And given the Tennessee court's clear pronouncements that its statute was intended to effect broad coverage, there was nothing to indicate, clearly or otherwise, that respondent's acts were outside the scope of § 39-707. . There is no possibility of retroactive lawmaking here. See 378 U. S., at 353-354. Accordingly, the petition for certiorari and respondent’s motion to proceed in forma pauperis are granted, and the judgment of the Court of Appeals is reversed.

So ordered.

Mr. Justice Brennan,

dissenting.

I dissent from the Court's summary reversal. The offense of “crimes against nature” at common law was narrowly limited to copulation per anum. American jurisdictions, however, expanded the term — some broadly and some narrowly — to include other sexual “aberrations.” Of particular significance for this case, as the Court of Appeals accurately stated, “courts have differed widely in construing the reach of ‘crimes against nature’ to cunnilingus.” 514 F. 2d 570, 571.

The Court holds, however, that because “[o]ther jurisdictions had already reasonably construed identical statutory language to apply to [cunnilingus] . . . given the Tennessee court’s clear pronouncements that its statute was intended to effect broad coverage, there was nothing to indicate, clearly or otherwise, that respondent’s acts were outside the scope of § 39-707.” Ante, at 53. In other words the traditional test of vagueness — whether the statute gives fair warning that one’s conduct is criminal- — -is supplanted by a test of whether there is anything in the statute “to indicate, clearly or otherwise, that respondent’s acts were outside the scope of” the statute. This stands the test of unconstitutional vagueness on its head. And this startling change in vagueness law is accompanied by the equally startling holding that, although the Tennessee courts had not previously construed “crimes against nature” to include cunnilingus, respondent cannot be heard to claim that § 39-707 therefore afforded no notice that his conduct fell within its scope, because he was on notice that Tennessee courts favored a broad reach of “crimes against nature” and other state courts favoring a broad reach had construed their state statutes to include cunnilingus.

Yet these extraordinary distortions of the principle that the Due Process Clause prohibits the States from holding an individual criminally responsible for conduct when the statute did not give fair warning that the conduct was criminal, are perpetrated without plenary review affording the parties an opportunity to brief and argue the issues orally. It is difficult to recall a more patent instance of judicial irresponsibility. For without plenary review the Court announces today, contrary to our prior decisions, that even when the statute he is charged with violating fails of itself to give fair warning, one acts at his peril if the state court has indicated a tendency to construe the pertinent statute broadly, and some other state court of like persuasion has construed its state statute to embrace the conduct made the subject of the charge. I simply cannot comprehend how the fact that one state court has judicially construed its otherwise vague criminal statute to include particular conduct can, without explicit adoption of that state court’s construction by the courts of the charging State, render an uninterpreted statute of the latter State also sufficiently concrete to withstand a charge of unconstitutional vagueness. But apart from the merits of the proposition, surely the citizens of this country are entitled to plenary review of its soundness before being required to attempt to conform their conduct to this drastically new standard. Today’s holding surely flies in the face of the line of our recent decisions that have struck down statutes as vague and overbroad, although other state courts had previously construed their like statutes to withstand challenges of vagueness and over-breadth. See, e. g., the “abusive language” decisions of which Gooding v. Wilson, 405 U. S. 518 (1972), is illustrative.

Nor will the Court’s assertions that the Tennessee courts had in any event in effect construed the Tennessee statute to include cunnilingus withstand analysis. The Court relies on a 1955 Tennessee decision that had held that “crimes against nature” include fellatio, the Tennessee court rejecting the contention that the statute was limited to the common-law copulation-per-armm scope of the phrase. The Tennessee court in that opinion cited a Maine case, decided in 1938, State v. Cyr, 135 Me. 513, 198 A. 743, where the Maine court had applied a “crimes against nature” statute to fellatio. But the Tennessee court did not also cite a 1950 Maine decision, State v. Townsend, 145 Me. 384, 71 A. 2d 517, that applied Maine’s “crimes against nature” statute to cunnilingus. Fisher v. State, 197 Tenn. 594, 277 S. W. 2d 340 (1955). Four years later, in 1959, in another fellatio case, the Tennessee court again made no mention of Townsend, although quoting from Cyr’s holding that the Maine statute applies to “ 'all unnatural copulation with mankind or a beast, including sodomy.’ ” Sherrill v. State, 204 Tenn. 427, 429, 321 S. W. 2d 811, 812 (1959). Despite this significant failure of the Tennessee court to cite Townsend, and solely on the strength of the Tennessee court’s general “equating” of the Maine statute with the Tennessee statute, this Court holds today that respondent had sufficient notice that the Tennessee statute would receive a “broad” interpretation that would embrace cunnilingus.

This 1974 attempt to bootstrap 1950 Maine law for the first time into the Tennessee statute must obviously fail if the principle of fair warning is to have any meaning. When the Maine court in 1938 applied its statute broadly to all “unnatural copulation,” nothing said by the Maine court suggested that that phrase reached cunnilingus. The common-law “crime against nature,” limited to. copulation per anum, required penetration as an essential element. In holding that a “broad” reading of that phrase should encompass all unnatural copulation including fellatio — copulation per os — Maine could not reasonably be understood as including cunnilingus in that category. Other jurisdictions, though on their State’s particular statutory language, have drawn that distinction. See, e. g., Riley v. Garrett, 219 Ga. 345, 133 S. E. 2d 367 (1963); State v. Tarrant, 83 Ohio App. 199, 80 N. E. 2d 509 (1948). Thus, when the Tennessee court in 1955 adopted the language of Maine’s 1938 Cyr case, a Tennessee citizen had at most notice of developments in Maine law through 1938. That Maine subsequently in 1950 applied its statute to cunnilingus is irrelevant, for such subsequent developments were not “adopted” by the Tennessee court until the case before us. Indeed, the Tennessee court’s failure in its 1955 Fisher opinion to cite Townsend, Maine’s 1950 cunnilingus decision, although citing Cyr, Maine’s 1938 fellatio decision, more arguably was notice that the Tennessee courts considered fellatio but not cunnilingus as within the nebulous reach of the Tennessee statute.

Moreover, I seriously question the Court’s assumption that the “broad interpretation” of the phrase “crime against nature” is not unconstitutionally vague. The Court’s assumption rests upon two supposed precedents: (1) this Court’s dismissal for want of a substantial federal question of the appeal in Crawford v. Missouri, 409 U. S. 811 (1972), and (2) the Court’s per curiam opinion in Wainwright v. Stone, 414 U. S. 21 (1973). That reliance is plainly misplaced.

In Crawford, the appellant had been convicted of coercing a mentally xetarded individual to perform fellatio on appellant. The Supreme Court of Missouri did not, as the Court implies, for the first time in that case adopt a “broad” construction of its statute and apply that construction in appellant’s case. Rather, the Supreme Court of Missouri first noted that the original statute, probably reaching only the common-law “crime against nature,” had been legislatively amended in express terms to expand the offense to conduct committed “with the sexual organs or with the mouth,” thereby “enlarging] the common law definition of the crime ....” State v. Crawford, 478 S. W. 2d 314, 317 (Mo. 1972). Moreover, the court, observing that a “court’s construction of statutory language becomes a part of the statute 'as if it had been so amended by the legislature/ ” ibid. (citations omitted), stated that in the 60 years since that amendment, the Missouri courts had “adjudicated” that the statute embraced “bestiality, buggery, fellatio . . . and cunnilingus,” id., at 318, and that “[a]t least five [Missouri] cases have specifically held that the act charged [against appellant] is within the statute.” Id., at 319. In light of that prior judicial and legislative construction of the statutory phrase, and its specific prior application to acts identical to the appellant’s, the dismissal in Crawford simply cannot be treated as holding that the phrase “crime against nature” is not in itself vague.

Wainwright v. Stone, as Mr. Justice Stewart correctly observes, also involved a statute already construed to cover the conduct there in question. Indeed, it was for that very reason that we held that the “judgment of federal courts as to the vagueness or not of a state statute must be made in the light of prior state constructions of the statute.” 414 U. S., at 22. The reversal of the Court of Appeals’ holding finding the statute unconstitutional was explicitly based on the fact that the state statute had previously been applied to identical conduct, which decisions “require [d] reversal” in Wainwright since they put the particular conduct expressly within the statute. Id., at 22-23.

No specter of increasing caseload can possibly justify today’s summary disposition of this case. The principle that due process requires that criminal statutes give sufficient warning to enable men to conform their conduct to avoid that which is forbidden is one of the great bulwarks of our scheme of- constitutional liberty. The Court’s erosion today of that great principle without even plenary review reaches a dangerous level of judicial irresponsibility. I would have denied the petition for certiorari, but now that the writ has béen granted would affirm the judgment of the Court of Appeals or at least set the case for oral argument.

Mr. Justice Stewart,

with whom Mr. Justice Marshall concurs, dissenting.

I would have denied the petition for certiorari in this case, but, now that the writ has been granted, I would affirm the judgment of the Court of Appeals.

This case is not of a piece with Wainwright v. Stone, 414 U. S. 21, upon which the Court so heavily relies. There the Florida courts had repeatedly and explicitly ruled that the state law in question prohibited precisely the conduct in which the defendants were found to have engaged. Here, by contrast, the Tennessee courts had never ruled that the act that Locke was found to have committed was covered by the vague and cryptic language of the Tennessee statute, Tenn. Code -Ann. § 39-707. The Court today emphasizes that a previous Tennessee court opinion had cited a decision of a Maine court construing a similar statute “broadly,”-but even the cited Maine decision had not construed the statute to cover the conduct in question here. And a later Tennessee decision would have supported the inference that this conduct was not proscribed by the Tennessee statute. Stephens v. State, 489 S. W. 2d 542 (1972).

In the Stone case, supra, the Florida statute had “been construed to forbid identifiable conduct so that 'interpretation by [the state court] puts these words in the statute as definitely as if it had been so amended by the legislature 414 U. S., at 23. In the present case, by contrast, the state courts had never held that the statutory language here at issue covered the respondent’s conduct.

As the Court of Appeals pointed out, the respondent in this case could, and probably should, be prosecuted for aggravated assault and battery. But I think the Court of Appeals was correct in holding that the Tennessee statute under which the defendant was in fact prosecuted was unconstitutionally vague as here applied.

       “39-707. Crimes against nature — Penalty.—Crimes against nature, either with mankind or any beast, are punishable by imprisonment in the penitentiary not less than five (5) years nor more than fifteen (15) years.”

       Respondent also sought relief on the theory that he was denied due process of law because he was convicted on the uncorroborated testimony of his victim. The District Court dismissed this ground as failing “to state a claim of constitutional significance/’ and respondent does not appear to have pursued it.

       This is not a case in which the statute threatens a fundamental right such as freedom of speech so as to call for any special judicial scrutiny, see Smith v. Goguen, 415 U. S. 566, 572-573 (1974).

       Admittedly, as the Court notes, a holding that prior application of a statute to identical conduct renders a statute sufficiently definite as to that conduct does not necessarily mean that in the absence of such prior application a statute must of necessity be deemed vague; but such a holding just as surely cannot be construed, as it is by the Court, as precedent deciding that in the absence of such construction, the phrase “crime against nature” is not unconstitutionally vague. In any event, Wainwright and Crawford present the identical situation, namely vague statutes judicially construed to narrow them.


author: Per Curiam. Mr. Justice Brennan

text:
    MENNA v. NEW YORK
    No. 75-5401.
    Decided November 17, 1975
   Per Curiam.

On November 7, 1968, after having been granted immunity, petitioner refused to answer questions put to him before a duly convened Kings County, N. Y., grand jury which was investigating a murder conspiracy. On March 18, 1969, petitioner refused to obey a court order to return to testify before the same grand jury in connection with the same investigation. On that date, petitioner was adjudicated in contempt of court under N. Y. Jud. Law § 750 (1968) for his failure to testify before the grand jury; and, on March 21, 1969, after declining an offer to purge his contempt, petitioner was sentenced to a flat 30-day term in civil jail. Petitioner served his sentence.

On June 10, 1970, petitioner was indicted for his refusal to answer questions before the grand jury on November 7, 1968. After asserting unsuccessfully that this indictment should be dismissed under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, petitioner pleaded guilty to the indictment and was sentenced on his plea.

Petitioner appealed, claiming that the Double Jeopardy Clause precluded the State from haling him into court on the charge to which he had pleaded guilty. The New York Court of Appeals affirmed the conviction, declining to address the double jeopardy claim on the merits. It held, relying, inter alia, on Tollett v. Henderson, 411 U. S. 258 (1973), that the double jeopardy claim had been “waived” by petitioner’s counseled plea of guilty.

We reverse. Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty. Blackledge v. Perry, 417 U. S. 21, 30 (1974). The motion for leave to proceed in forma pawperis and the petition for certiorari are granted, and the case is remanded to the New York Court of Appeals for a determination of petitioner’s double jeopardy claim on the merits, a claim on which we express no view.

So ordered.

Mr. Justice Brennan

agrees that “[w]here the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty,” ante, at 62, but on his view that the Double Jeopardy Clause bars the prosecution from mounting successive prosecutions for offenses growing out of the same criminal transaction, he believes that the proper disposition of the case is not a remand but outright reversal. See Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring).

The Chiee Justice and Mr. Justice Rehnquist would grant the petition for a writ of certiorari and set the case for oral argument.

       The State concedes that petitioner’s double jeopardy claim is a strong one on the merits. In light of the flat 30-day sentence imposed, the earlier contempt adjudication was a criminal conviction, People v. Colombo, 31 N. Y. 2d 947, 293 N. E. 2d 247 (1972), on remand from Colombo v. New York, 405 U. S. 9 (1972), and New York law supports the proposition that the earlier conviction was based, at least in part, on the failure to answer questions on November 7, 1968, and was thus for the same crime as the one charged in the instant indictment. In re Capio v. Justices of the Supreme Court, 41 App. Div. 2d 235, 342 N. Y. S. 2d 100 (1973), aff’d, 34 N. Y. 2d 603, 310 N. E. 2d 547 (1974); People v. Matra, 42 App; Div. 2d 865, 346 N. Y. S. 2d 872 (1973).

       Neither Tollett v. Henderson, 411 U. S. 258 (1973), nor our earlier cases on which it relied, e. g., Brady v. United States, 397 U. S. 742 (1970), and McMann v. Richardson, 397 U. S. 759 (1970), stand for the proposition that counseled guilty pleas inevitably “waive” all antecedent constitutional violations. If they did so hold, the New York Court of Appeals might be correct. However, in Tollett we emphasized that waiver was not the basic ingredient of this line of cases, 411 U. S., at 266. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt i's a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guEt and which do not stand in the way of conviction, if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guEt is established. The guilty plea, therefore, does not bar the claim.
      We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.


text:
    DILLINGHAM v. UNITED STATES
    No. 74-6738.
    Decided December 1, 1975
   Per Curiam.

An interval of 22 months elapsed between petitioner’s arrest and indictment, and a further period of 12 months between his indictment and trial, upon charges of automobile theft in violation of 18 U. S. C. §§ 371, 2312, and 2313. The District Court for the Northern District of Georgia denied petitioner’s motions — made immediately after arraignment and posttrial — to dismiss the indictment on the ground that petitioner had been denied a speedy trial in violation of the Sixth Amendment. The Court of Appeals for the Fifth Circuit affirmed, holding that under United States v. Marion, 404 U. S. 307 (1971), the 22-month “pre-indictment delay ... is not to be counted for the purposes of a Sixth Amendment motion absent a showing of actual prejudice.” 502 F. 2d 1233, 1235 (1974). This reading of Marion was incorrect. Marion presented the question whether in assessing a denial of speedy trial claim, there was to be counted a delay between the end of the criminal scheme charged and the indictment of a suspect not arrested or otherwise charged previous to the indictment. The Court held: “On its face, the protection of the [Sixth] Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time.” 404 U. S., at 313. In contrast, the Government constituted petitioner an “accused” when it arrested him and thereby commenced its prosecution of him. Marion made this clear, id., at 320-321, where the Court stated:

“To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, ánd create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, [386 U. S. 213 (1967)]; see also Smith v. Hooey, 393 U. S. 374, 377-378 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.
“Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge.”

See also Barker v. Wingo, 407 U. S. 514, 519-520, 532-533 (1972).

Petitioner’s motion to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

The Chief Justice dissents.

      The Memorandum for the United States in Opposition, p. 4, states that “Marion appears to leave little doubt . . . that [the Court] believed that the policies that inform the right to a speedy trial reach beyond the indictment stage of criminal proceedings and that the right consequently attaches either at the point at which a person is arrested and held to answer on .a criminal charge or when he is formally charged by indictment or information, whichever occurs earlier Accord, United States v. Macino, 486 F. 2d 750 (CA7 1973); United States v. Cabral, 475 F. 2d 715 (CA1 1973); Edmaiston v. Neil, 452 F. 2d 494 (CA6 1971).


author: Per Curiam. Mr. Justice Marshall,

text:
    TEXAS v. WHITE
    No. 75-124.
    Decided December 1, 1975
   Per Curiam.

Respondent was arrested at 1:30 p. m. by Amarillo, Tex., police officers while attempting to pass fraudulent checks at a drive-in window of the First National Bank of Amarillo. Only 10 minutes earlier, the officers had been informed by another bank that a man answering respondent’s description and driving an automobile exactly matching that of respondent had tried to negotiate four checks drawn on a nonexistent account. Upon arrival at the First National Bank pursuant to a telephone call from that bank, the officers obtained from the drive-in teller other checks that respondent had attempted to pass there. The officers directed respondent to park his automobile at the curb. While parking the car, respondent was observed by a bank employee and one of the officers attempting to “stuff” something between the seats. Respondent was arrested and one officer drove him to the station house while the other drove respondent’s car there. At the station house, the officers questioned respondent for 30 to 45 minutes and, pursuant to their normal procedure, requested consent to search the automobile. Respondent refused to consent to the search. The officers then proceeded to search the automobile anyway. During the search, an officer discovered four wrinkled checks that corresponded to those respondent had attempted to pass at the first bank. The trial judge, relying on Chambers v. Maroney, 399 U. S. 42 (1970), admitted over respondent’s objection the four checks seized during the search of respondent’s automobile at the station house. The judge expressly found probable cause both for the arrest and for the search of the vehicle, either at the scene or at the station house. Respondent was convicted after a jury trial of knowingly attempting to pass a forged instrument. The Texas Court of Criminal Appeals, in a 3-2 decision, reversed respondent’s conviction on the ground that the four wrinkled checks used in evidence were obtained without a warrant in violation of respondent’s Fourth Amendment rights. 521 S. W. 2d 255 (1975). We reverse.

In Chambers v. Maroney we held that police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant. There, as here, “[t]he probable-cause factor” that developed at the scene “still obtained at the station house.” 399 U. S., at 52. The Court of Criminal Appeals erroneously excluded the evidence seized from the search at the station house in fight of the trial judge’s finding, undisturbed by the appellate court, that there was probable cause to search respondent’s car.

The petition for certiorari and the motion of respondent to proceed in forma pauperis are granted, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Marshall,

with whom Mr. Justice Brennan concurs,

dissenting.

Only by misstating the holding of Chambers v. Maroney, 399 U. S. 42 (1970), can the Court make that case appear dispositive of this one. The Court in its brief per curiam opinion today extends Chambers to a clearly distinguishable factual setting, without having afforded the opportunity for full briefing and oral argument. I respectfully dissent.

Chambers did not hold, as the Court suggests, that “police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant.” Ante, at 68. Chambers simply held that to be the rule when it is reasonable to take the car to the station house in the first place.

In Chambers the Court took as its departure point this Court’s holding in Carroll v. United States, 267 U. S. 132 (1925):

“Carroll . . . holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.” 399 U. S., at 51.

Carroll, however, did not dispose of Chambers, for in Chambers, as in this case, the police did not conduct an “immediate search,” but rather seized the car and took it to the station house before searching it. The Court in Chambers went on to hold that once the car was legitimately at the station house a prompt search could be conducted. But in recognition of the need to justify the seizure and removal of the car to the station house, the Court added:

“It was not unreasonable in this case to take the car to the station house. All occupants in the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers, and it would serve the owner’s convenience and the safety of his car to have the vehicle and the keys together at the station house.” Id., at 52 n. 10.

In this case, the arrest took place at 1:30 in the afternoon, and there is no indication that an immediate search would have been either impractical or unsafe for the arresting officers. It may be, of course, that respondent preferred to have his car brought to the station house, but if his convenience was the concern of the police they should have consulted with him. Surely a seizure cannot be justified on the sole ground that a citizen might have consented to it as a matter of convenience. Since, then, there was no apparent justification for the war-rantless removal of respondent’s car, it is clear that this is a different case from Chambers.

It might be argued that the taking of respondent’s car to the police station was neither more of a seizure, nor in practical terms more of an intrusion, than would have been involved in an immediate at-the-scene search, which was clearly permissible. Such a contention may well be substantial enough to warrant full briefing and argument, but it is not so clearly meritorious as to warrant adoption in the summary fashion in which the Court proceeds. Indeed, a reading of Chambers itself suggests that this contention is without merit.

In Chambers the Court considered and rejected the argument that Carroll was wrong in permitting a war-rantless search of an automobile — that the immobilization of a car until a search warrant is obtained is a “lesser” intrusion and should therefore be the outer bounds of what is permitted. The Court noted that “which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question,” 399 TJ. S., at 51, and concluded:

“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant.” Id., at 52.

In the Court’s view, then, the intrusion involved in initially seizing a car on the highway and holding it for the short time required to seek a warrant is so substantial as to be constitutionally indistinguishable from the intrusion involved in a search of the vehicle. But the Court did not stop with that observation. It went on to note that once a car is legitimately brought to the station house, the additional intrusion involved in simply immobilizing the car until a warrant' can be sought is no less significant than that involved in a station house search: “[T]here is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” Ibid. It was because such temporary seizures were deemed no less intrusive than searches themselves that Chambers approved searches when temporary seizures would have been justified.

In short, the basic premise of Chambers’ conclusion that seizures pending the seeking of a warrant are not constitutionally preferred to warrantless searches was that temporary seizures are themselves intrusive. That same premise suggests that the seizure and removal of respondent’s car in this case were quite apart from the subsequent search, an intrusion of constitutional dimension that must be independently justified. The seizure and removal here were not for the purpose of immobilizing the car until a warrant could be secured, nor were they for the purpose of facilitating a safe and thorough search of the car. In the absence of any other justification, I would hold the seizure of petitioner’s car unlawful and exclude the evidence seized in the subsequent search.

I would have denied the petition for certiorari, but now that the writ has been granted I would affirm the judgment of the Court of Criminal Appeals, or at least set the case for oral argument. In any event, it should be clear to the court below that nothing this Court does today precludes it from reaching the result it did under applicable state law. See Oregon v. Hass, 420 U. S. 714, 726 (1976) (Marshall, J., dissenting).

      One might argue that respondent’s car was seized and held for a shorter period of time than would be required to ask a magistrate for a warrant, and that the intrusion here is therefore of less significance than the intrusions referred to in Chambers. But Chambers took such time elements out of the equation. While recognizing that the relative intrusiveness of an immediate search and a seizure pending the seeking of a warrant would depend on “a variety of circumstances,” 399 U. S., at 51-52, the Court preferred the predictability of a general rule “equating” the intrusiveness of a search and a relatively brief seizure. Having chosen such a general rule, the Court should follow it to its logical conclusion.