author: Per Curiam. Mr. Justice Stevens,

text:
    BRENNAN et al. v. ARMSTRONG et al.
    No. 76-809.
    Decided June 29, 1977
   Per Curiam.

This school desegregation case involves the school system in the city of Milwaukee, Wis. The District Court here made various findings of segregative acts on the part of petitioner School Board members, appointed a Special Master “to develop a plan for the desegregation of the Milwaukee public school system,” and certified its order for interlocutory appeal to the Court of Appeals for the Seventh Circuit. Amos v. Board of School Directors, 408 F. Supp. 765. The Court of Appeals, observing that there was “an unexplained hiatus between specific findings of fact and conclusory findings of segregative intent,” stated that the District Court is “entitled to a presumption of consistency” and concluded that the findings of the District Court were not clearly erroneous. 539 F. 2d 625. Neither the District Court in ordering development of a remedial plan, nor the Court of Appeals in affirming, addressed itself to the inquiry mandated by our opinion in Dayton Board of Education v. Brinkman, ante, p. 406, in which we said:

“If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segrega-tive effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy.” Ante, at 420.

The petition for certiorari is accordingly granted, the judgment of the Court of Appeals is .vacated, and the case is remanded for reconsideration in the light of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977), and Dayton.

Mr. Justice Stevens,

with whom Mr. Justice Brennan and Mr. Justice Marshall join,

dissenting.

My concern over the Court’s misuse of summary dispositions prompts this dissent.

The Court’s explanation of its action gives the erroneous impression that the Court of Appeals’ decision related to the question of what kind of remedy is appropriate in this case. Quite the contrary, there was no remedy issue before the Court of Appeals, and that court considered no such issue.

The District Court concluded in a 60-page opinion that “school authorities engaged in practices with the intent and for the purpose of creating and maintaining a segregated school system, and that such practices had the effect of causing current conditions of segregation in the Milwaukee public schools.” Amos v. Board of School Directors, 408 F. Supp. 765, 818 (ED Wis. 1976). Recognizing that “remedial efforts' may well be for naught if the determination of liability is ultimately reversed on appeal,” id., at 824, Judge Reynolds certified this issue of law for interlocutory appeal. To further ensure appealability, he entered a general order enjoining future racial discrimination and directing the defendants to formulate desegregation plans. App. 140-141. This order did not call for any particular kind of desegregation plan. Thus, when the case reached the Court of Appeals, the only issue before it was the existence of a violation. After a careful review of the evidence, it concluded that the District Court’s finding of intentional segregation was not clearly erroneous. 539 F. 2d 625 (CA7 1976). .

This Court now vacates the Court of Appeals judgment and remands for reconsideration in light of two cases. One of those cases is merely a routine application of Washington v. Davis, 426 U. S. 229, which was correctly construed by the Court of Appeals. The other case is relevant to the issue of liability, if at all, only because it supports the Court of Appeals.

Of course, in formulating a remedy, the District Court will need to consider cases such as Milliken v. Bradley, ante, p. 267, and Dayton Board of Education v. Brinkman, ante, p. 406, if there is any dispute about the proper scope of the remedy. But since no such issue has ever been decided by the Court of Appeals, there is nothing for it to reconsider in light of these cases. These cases certainly provide no justification for vacating the judgment affirming the District Court’s conclusion that the petitioners have violated the Constitution. This Court’s hasty action will unfortunately lead to unnecessary work by already overburdened Circuit Judges, who have given this case far more study than this Court had time to give it. Nevertheless, it is quite clear that after respectful reconsideration the Court of Appeals remains free to re-enter its original judgment.

In my opinion the petition for certiorari should be denied. However, since the Court has granted the petition, and since it is not our practice to review findings of fact which the Court of Appeals has already determined to be supported by the record, I would affirm the judgment.

       After the case was argued in the Court of Appeals on June 2, 1976 (see 539 F. 2d 625), the District Court entered a broader remedy. App. 142, 144.

        Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252.

       The Court of Appeals cited Washington v. Davis as holding that “a 'racially discriminatory purpose’ is essential to an equal protection violation in school cases, as in other cases,” and that “[pjurpose may ... be inferred from ‘the totality of the relevant facts,’ which may include discriminatory impact,” 539 F. 2d, at 633-634, quoting Washington v. Davis, 426 U. S., at 242.

        Dayton Board of Education v. Brinkman, ante, p. 406, is primarily a remedy case and therefore irrelevant to the action of the Court of Appeals in this case. It does, however, stress the limitations on appellate review in this area, such as the “clearly erroneous” rule, ante, at 417, which the Court of Appeals scrupulously followed, e. g., 539 F. 2d, at 637.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Rehnquist,

license: Public Domain

text:
    FINCH v. UNITED STATES
    No. 76-1206.
    Decided June 29, 1977
   Per Curiam.

In an information filed in the United States District Court for the District of Montana, petitioner was charged with knowingly fishing on a portion of the Big Horn River in Montana reserved for use by the Crow Indians, in violation of 18 U. S. C. § 1165. The case was submitted to the District Court on an agreed statement of facts, which showed that petitioner had cast his lure into the river while standing on land owned by the State of Montana within the exterior boundaries of the Crow Reservation. After considering the stipulated facts and reviewing the applicable treaties, the court dismissed the information for failure to state an offense. 395 F. Supp. 205 (1975).

On the Government’s appeal, the Court of Appeals for the Ninth Circuit reversed. 548 F. 2d 822 (1976). The court held that the appeal was permissible under 18 U. S. C. § 3731 and the Double Jeopardy Clause because, as in United States v. Wilson, 420 U. S. 332 (1975), no further factual proceedings would be required in the District Court in the event that its legal conclusions were found to be erroneous:

“Here, as in Wilson, it is easy to separate factual resolutions from determinations of law. No additional facts must be found to determine whether the stipulation supports the conviction of the defendant. The only determination to be made is a legal one.” 548 F. 2d, at 827.

On the merits, the court viewed the pertinent treaties differently from the District Court and held that petitioner had violated 18 U. S. C. § 1165 “by willfully and knowingly fishing without lawful authority or permission of the tribe.” 548 F. 2d, at 835. The court directed entry of a judgment of conviction.

We think that the Court of Appeals was without jurisdiction to entertain the appeal. When the District Court dismissed the information, jeopardy had attached, see Serfass v. United States, 420 U. S. 377, 388 (1975), but no formal finding of guilt or innocence had been entered, see United States v. Jenkins, 420 U. S. 358 (1975); Lee v. United States, 432 U. S. 23, 28 n. 4, 29 n. 7 (1977). In these circumstances, the holding of United States v. Wilson is inapposite. A successful Government appeal “would not justify a reversal with instructions to reinstate the general finding of guilt: there was no such finding, in form or substance, to reinstate.” United States v. Jenkins, supra, at 368. Absent a plea of guilty or nolo con-tendere, see Fed. Rule Crim. Proc. 11, a verdict or general finding of guilt by the trial court is a necessary predicate to conviction. See Rule 23 (c). Because the dismissal was granted prior to any declaration of guilt or innocence, “on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged,” Lee, supra, at 30, we hold that the Government's appeal was barred by the Double Jeopardy Clause.

We grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand to that court with directions that the appeal be dismissed.

R g0 Qrdere±

MR. Justice Stevens would grant certiorari and set the case for oral argument.

Mr. Justice Rehnquist,

with whom The Chief Justice joins, dissenting.

I dissent from the summary disposition of this case for two reasons. The first is that the factual assumption, made both by the Court of Appeals for the Ninth Circuit and by this Court, that petitioner and respondent had agreed to submit the issue of guilt to the District Court on the “agreed statement of facts” is by no means clear from Judge Battin’s principal opinion in this case, 395 F. Supp. 205. My second reason for disagreeing with summary disposition is that this Court has never passed on any claim of double jeopardy where the issues were submitted on an agreed statement of facts, rather than to a jury for its verdict or to the court for a finding of guilt or innocence after hearing witnesses. While I am not prepared to say that the Court’s decision on the legal issue involved here is wrong, I am riot sufficiently convinced that it is right so as to justify summary disposition without either argument or briefing on the merits.

The Court states that “[t]he case was submitted to the District Court on an agreed statement of facts,” and “[a]fter considering the stipulated facts and reviewing the applicable treaties, the court dismissed the information for failure to state an offense.” The Court of Appeals for the Ninth Circuit put the matter much the same way. Implicit in this statement is that the submission involved a waiver of petitioner’s right to jury trial and both his and the Government’s consent that the District Court decide the issue of guilt or innocence. The District Court’s opinion in the case, however, is by no means clear on these points. That court put the matter this way:

“On June 14, 1974, the defendant filed a motion to dismiss said information. The parties submitted extensive and well-considered memoranda of law. On September 4, 1974 an order was filed wherein I denied the motion to dismiss and noted that the information was sufficient on its face. An Agreed Statement of Facts and additional memoranda of law have been filed. Additionally, counsel for the Crow Tribe of Indians and the State of Montana, Department of Fish and Game, have appeared herein as amici curiae.
“After a thorough review of the file, I am compelled to reconsider my order dated September 4, 1974, wherein I denied defendant’s motion to dismiss. I conclude that the information is not sufficient on its face for several reasons.” Id., at 207.

While this statement is by no means inconsistent with an agreement by the parties to submit the issue of guilt or innocence to the District Court, neither is it inconsistent with an agreement by the parties to submit on an agreed statement of facts a motion for reconsideration of the motion to dismiss the information, which the District Court had previously denied. This factual uncertainty, unless somehow clarified, would lead me to deny certiorari in this case in order that this Court not render an advisory opinion on what may be an important double jeopardy question.

The Court of Appeals, proceeding on the hypothesis that the case had been submitted to the District Court for a determination of guilt or innocence, as well as the sufficiency of the information, decided that jeopardy had attached. It therefore proceeded to inquire whether a reversal of the District Court’s dismissal of the information would require further factual determinations, and therefore constitute double jeopardy under United States v. Jenkins, 420 U. S. 358 (1975), or would instead be governed by United States v. Wilson, 420 U. S. 332 (1975).

I agree with the Court that the Court of Appeals’ alignment of this case with Wilson rather than with Jenkins was conclusory and gave too little attention to the ways in which this case differs from Wilson. But I do' not think the opposite result is so obvious as to warrant summary disposition. In deciding the question of law which this case poses, I do not think we can ignore three double jeopardy decisions which have intervened since the Jenkins-Wilson-Serfass (Serfass v. United States, 420 U. S. 377 (1975)) trilogy of two years ago. United States v. Dinitz, 424 U. S. 600 (1976), qualified the “manifest necessity” requirement of United States v. Perez, 9 Wheat. 579 (1824), where a mistrial was granted at the request of the defendant. Its stress on the absence of prosecutorial overreaching or misconduct, while in no way inconsistent with that trilogy, nonetheless emphasized more of a balancing and fairness test than the sort of “bright line” distinction set forth in Wilson and Jenkins. United States v. Martin Linen Supply Co., 430 U. S. 564 (1977), and Lee v. United States, 432 U. S. 23 (1977), likewise read more in terms of balancing and of “double jeopardy values” than in terms of the strict Wilson-Jenkins distinction.

If there has been some shift in emphasis in the Court’s cases this Term, it seems to me that the submission of the issue of guilt or innocence on an agreed statement of facts not only factually distinguishes this case from Jenkins, but is a factor to be weighed in any balancing test against a finding of double jeopardy. We have held that the Double Jeopardy Clause bars repeated prosecutions not only to reduce the possibility that an innocent man will finally be convicted, but to avoid subjecting defendants “to embarrassment, expense and ordeal and compelling [them] to live in a continuing state of anxiety and insecurity . . . .” Green v. United States, 355 U. S. 184, 187-188 (1957). See United States v. Jorn, 400 U. S. 470, 479 (1971). Since if the Court’s factual hypothesis is right, the facts of this case are not in issue, not only is some of the embarrassment and ordeal absent, but the expense that would normally be involved in a full-scale retrial with its calling of witnesses for both sides is likewise avoided.

The factual uncertainties in this case are not entirely unrelated to the double jeopardy questions involved. Because we have never decided a case involving double jeopardy claims where the issue of guilt or innocence was submitted to the court on an agreed statement of facts without the calling of any witnesses, we have never had occasion to pass on when jeopardy attaches in such a situation. Assuming that the factual uncertainties in the procedural history of the case can be clarified, and that the issue of guilt or innocence was submitted to the trial judge, I do not believe this case is controlled by Jenkins. The double jeopardy issues which it raises are not as straightforward as suggested in the Court’s summary disposition. If the Court feels this case should be decided on the merits, I would therefore grant certiorari and have it briefed and argued.


author: Per Curiam. Mr. Justice Brennan,

text:
    HARRIS v. OKLAHOMA
    No. 76-5663.
    Decided June 29, 1977
   Per Curiam.

A clerk in a Tulsa, Okla., grocery store was shot and killed by a companion of petitioner in the course of a robbery of the store by the two men. Petitioner was convicted of felony-murder in Oklahoma State court. The opinion of the Oklahoma Court of Criminal Appeals in this case states that “[i]n a felony murder case, the proof of the underlying felony [here robbery with firearms] is needed to prove the intent necessary for a felony murder conviction.” 555 P. 2d 76, 80-81 (1976). Petitioner nevertheless was thereafter brought to trial and convicted on a separate information charging the robbery with firearms, after denial of his motion to dismiss on the ground that this prosecution violated the Double Jeopardy Clause of the Fifth Amendment because he had been already convicted of the offense in the felony-murder trial. The Oklahoma Court of Criminal Appeals affirmed.

When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. In re Nielsen, 131 U. S. 176 (1889); cf. Brown v. Ohio, 432 U. S. 161 (1977). “[A] person [who] has been tried and convicted for a crime which has various incidents included in it, . . . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.” In re Nielsen, supra, at 188. See also Waller v. Florida, 397 U. S. 387 (1970); Grafton v. United States, 206 U. S. 333, 352 (1907).

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

Reversed.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins,

concurring.

I join the Court’s opinion but in any event would reverse on a ground not addressed by the Court, namely, that the State did not prosecute the two informations in one proceeding. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring). See Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting from denial of certiorari), and cases collected therein.

      The State conceded in its response to the petition for certiorari that “in the Murder case, it was necessary for all the ingredients of the underlying felony of Robbery with Firearms to be proved . . . .” Brief in Opposition 4.


text:
    June 27, 1977
    No. 75-6721.
    Doe et al. v. Stewart, Commissioner, Health and Resources Administration of Louisiana.
   Affirmed on appeal from D. C. E. D. La.

Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Blackmun dissent.


text:
    No. 76-680.
    Jernigan, Secretary of State of Arkansas v. Lendall.
   Appeal from D. C. E. D. Ark. Motion of appellee for leave to proceed in forma pauperis granted. Judgment affirmed.


text:
    No. 76-1020.
    Socialist Workers Party et al. v. Eu, Secretary of State of California.
   Affirmed on appeal from D. C. N. D. Cal.


text:
    No. 75-1809.
    Rabinovitch v. Nyquist, Commissioner of Education of New York, et al.
   Appeal from D. C. E. D. N. Y. dismissed.


text:
    No. 75-813.
    Westby, Secretary, Department of Social Services of South Dakota, et al. v. Doe et al.
   Appeal from D. C. S. D. Judgment vacated and case remanded for further consideration in light of Beal v. Doe, 432 U. S. 438 (1977), and Maher v. Roe, 432 U. S. 464 (1977).

Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Black-mun would affirm the judgment.


text:
    No. 75-1749.
    Toia, Acting Commissioner, Department of Social Services of New York, et al. v. Klein et al.
   Appeal from D. C. E. D. N. Y. Motion of appellees for leave to proceed in forma pauperis granted, judgment vacated, and case remanded for further consideration in light of Beal v. Doe, 432 U. S. 438 (1977), and Maher v. Roe, 432 U. S. 464 (1977).

Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Blackmun would affirm the judgment.


text:
    No. 76-595.
    No. 76-713.
    Levitt, Comptroller of New York, et al. v. Committee for Public Education & Religious Liberty et al.; and La Salle Academy et al. v. Committee for Public Education & Religious Liberty et al.
   Appeals from D. C. S. D. N. Y. Judgment vacated and cases remanded for further consideration in light of Wolman v. Walter, ante, p. 229.

Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Stevens would affirm the judgment.

Reported below: 414 F. Supp. 1174.


text:
    No. 76-846.
    Rush et al. v. Savchuk.
   Appeal from Sup. Ct. Minn. Judgment vacated and case remanded for further consideration in light of Shaffer v. Heitner, ante, p. 186.


text:
    No. 76-1503.
    Atchison, Topeka & Santa Fe Railway Co. et al. v. Wichita Board of Trade et al.
   Appeal from D. C. Kan. Judgment vacated and case remanded with directions to remand case to the Interstate Commerce Commission for further consideration in connection with its reconsideration of Secretary of Agriculture v. Interstate Commerce Commission, No. 76-1026 (CADC Mar. 11, 1977), on remand from the United States Court of Appeals for the District of Columbia Circuit.

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


text:
    No. 76-1144.
    Minnesota Civil Liberties Union et al. v. Casmey, Commissioner of Education, et al.
   Appeal from D. C. Minn. Judgment vacated and case remanded for further consideration in light of Wolman v. Walter, ante, p. 229.


text:
    No. 75-478.
    Parker Seal Co. v. Cummins,
   429 U. S. 65. Petition for rehearing granted. Judgment of this Court, entered November 2, 1976, and judgment of the United States Court of Appeals for the Sixth Circuit are vacated. Case remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of TWA v. Hardison, 432 U. S. 63 (1977).

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


text:
    No. 75-1745.
    Barbour v. North Carolina.
   Ct. App. N. C. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Patterson v. New York, 432 U. S. 197 (1977), and Hankerson v. North Carolina, 432 U. S. 233 (1977).


text:
    No. 76-85.
    Hunter v. North Carolina.
   Ct. App. N. C. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Patterson v. New York, 432 U. S. 197 (1977), and Hankerson v. North Carolina, 432 U. S. 233 (1977).


text:
    No. 75-6852.
    Burke v. North Carolina.
   Ct. App. N. C. Motion of petitioner for leave to proceed in forma -pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Patterson v. New York, 432 U. S. 197 (1977), and Hankerson v. North Carolina, 432 U. S. 233 (1977).


text:
    No. 75-6907.
    Barker v. North Carolina.
   Ct. App. N. C. Motion of petitioner for leave to proceed in forma pau-peris and certiorari granted. Judgment vacated and case remanded for further consideration in light of Patterson v. New York, 432 U. S. 197 (1977), and Hankerson v. North Carolina, 432 U. S. 233 (1977).


text:
    No. 76-86.
    McClatchy Newspapers et al. v. Noble et ux.
   C. A. 9th Cir. Motion of American Newspaper Publishers Assn, for leave to file a brief as amicus curiae granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Continental T. V., Inc. v. GTE Sylvania Inc., ante, p. 36.


text:
    No. 76-641.
    No. 76-1166.
    P. C. Pfeiffer Co., Inc., et al. v. Ford et al.; and Director, Office of Workers’ Compensation Programs, U. S. Department of Labor v. Jacksonville Shipyards, Inc., et al.
   C. A. 5th Cir. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977). Reported below: 539 F. 2d 533.


text:
    No. 76-724.
    Estelle, Corrections Director v. McDonald.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Wainwright v. Sykes, ante, p. 72.


text:
    No. 76-730.
    Adkins v. I. T. O. Corporation of Baltimore et al.
   C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977).


text:
    No. 76-1361.
    J. A. McCarthy, Inc., et al. v. Bradshaw et al.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977).


text:
    No. 76-1498.
    Davis v. Kentucky.
   Sup. Ct. Ky. Cer-tiorari granted, judgment vacated, and case remanded for further consideration in light of Brown v. Ohio, 432 U. S. 161 (1977), and Price v. Georgia, 398 U. S. 323 (1970).


text:
    No. 76-5722.
    Schleis v. United States.
   C. A. 8th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Chadwick, ante, p. 1.


text:
    No. 76-6714.
    McKenzie v. Montana.
   Sup. Ct. Mont. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Patterson v. New York, 432 U. S. 197 (1977).


text:
    No. A-881 (76-5325).
    Browder v. Director, Department of Corrections of Illinois.
   C. A. 7th Cir. [Certio-rari granted, 429 U. S. 1072.] Application for enlargement from custody, presented to Mr. Justice Powell, and by him referred to the Court, denied.


text:
    No. A-1030.
    Timmons v. McGrath.
   Sup. Ct. S. C. Application for stay of execution and enforcement of judgment below, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. A-1071.
    Knapp v. Arizona.
   Application for stay of execution of sentence of death entered by the Superior Court of Arizona, in and for the County of Maricopa, on Jan. 6, 1975, presented to Mr. Justice Rehnquist, and by him referred to the Court, granted pending timely filing and disposition of a petition for writ of certiorari.


text:
    No. A-1081 (76-6965).
    Jordan v. Arizona.
   Sup. Ct. Ariz. Application for stay of execution of sentence of death entered by the Superior Court of Arizona, in and for the County of Maricopa, on Mar. 13, 1975, presented to Mr. Justice Rehnquist, and by him referred to the Court, granted pending disposition of the case in this Court.


text:
    No. D-75.
    In re Disbarment of Plenty.
   Disbarment entered. [For earlier order, see 429 U. S. 937.]


text:
    No. D-98.
    In re Disbarment of Renshaw.
   Disbarment entered. [For earlier order, see 430 U. S. 927.]


text:
    No. D-113.
    In re Disbarment of Librach.
   It is ordered that Burton A. Librach of Clayton, Mo., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 76-6707.
    No. 76-6726.
    No. 76-6754.
    Crowley v. United States Court of Appeals for the Third Circuit; Williams v. Phillips, Chief Judge, U. S. Court of Appeals, et al.; and Clark v. United States District Court for the District of Kansas.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 76-1662.
    United States v. Board of Commissioners of Sheffield et al.
   Appeal from D. C. N. D. Ala. Probable jurisdiction noted.


text:
    No. 76-1346.
    Lorillard, a Division of Loew’s Theatres, Inc. v. Pons.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 76-1476.
    J. W. Bateson Co., Inc., et al. v. United States ex rel. Board of Trustees of the National Automatic Sprinkler Industry Pension Fund et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 76-1040.
    Sanabria v. United States.
   C. A. 1st Cir. Certiorari granted limited to Questions 1, 2, and 3 presented by the petition.


text:
    No. 76-1114.
    No. 76-1133.
    No. 76-1587.
    California et al. v. Southland Royalty Co. et al.; El Paso Natural Gas Co. v. Southland Royalty Co. et al.; and Federal Power Commission v. Southland Royalty Co. et al.
   C. A. 5th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument.

Mr. Justice Stewart and Mr. Justice Powell took no part in the consideration or decision of these petitions.

Reported below: 543 F. 2d 1134.


text:
    No. 76-6513.
    Bell v. Ohio.
   Sup. Ct. Ohio. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted limited to Question 1 presented by the petition.


text:
    No. 75-1654.
    Branch v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 75-7001.
    Kirk et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-6866.
    Favors v. Georgia.
   Ct. App. Ga. Certio-rari denied.


text:
    No. 76-242.
    Noble et ux. v. McClatchy Newspapers et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-359.
    U. S. Industries, Inc., et al. v. Gregg.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-537.
    International Association of Machinists & Aerospace Workers, AFL-CIO, et al. v. Hopkins et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-571.
    John T. Clark & Son of Boston, Inc., et al. v. Stockman et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 76-706.
    Maritime Terminals, Inc., et al. v. Brown et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 76-880.
    Halter Marine Fabricators, Inc., et al. v. Nulty et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-910.
    Edwin K. Williams & Co.-East, Inc., et al. v. Edwin K. Williams & Co., Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-1033.
    Evans, Trustee in Bankruptcy v. S. S. Kresge Co.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-1093.
    Dravo Corp. et al. v. Maxin et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-1164.
    Snyder v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-1191.
    United States v. City of Albuquerque et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 76-1194.
    No. 76-6221.
    No. 76-6723.
    Spagnolo v. United States; Fusco v. United States; and Falvo v. United States.
   C. A. 4th Cir. Certiorari denied. Reported below: 546 F. 2d 1117.


text:
    No. 76-1294.
    Seshachalam v. Creighton University School of Medicine.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-1319.
    Burleigh House Condominium, Inc. v. Buchwald, Trustee, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-1364.
    Applestein v. Simons.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 76-1372.
    Todaro v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-1405.
    Gallagher v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-1407.
    Mercantile Trust Company National Assn. v. St. Louis County National Bank et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-1413.
    Brainerd v. Dann, Commissioner of Patents and Trademarks.
   C. C. P. A. Certiorari denied.


text:
    No. 76-1428.
    St. Clair v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-1466.
    Higa v. Stetson, Secretary of the Air Force, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-1531.
    Lex Tex Ltd., Inc. v. Universal Textured Yarns, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-1538.
    Grayco Land Escrow, Ltd., et al. v. Wong et al.
   Sup. Ct. Hawaii. Certiorari denied.


text:
    No. 76-1541.
    Darvin v. County of Orange et al.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 76-1544.
    No. 76-1545.
    Knutson et al. v. Daily Review, Inc., et al.; and Daily Review, Inc., et al. v. Knutson et al.
   C. A. 9th Cir. Certiorari denied. Reported below: 548 F. 2d 795.


text:
    No. 76-1549.
    New York v. Yarter.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 76-1551.
    Moody et ux. v. Willie et ux.
   C. A. 5th Cir.


text:
    No. 76-1562.
    Pierpont v. Allen et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 76-1574.
    Central Bank of Clayton v. Clayton Bank et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-1589.
    Dawkins v. Nabisco, Inc., Bakery & Confectionery Union Local No. 42.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-1619.
    Crutcher-Rolfs-Cummings, Inc. v. Ballard.
   Ct. Civ. App. Tex., 13th Sup. Jud. Dist. Certiorari denied.


text:
    No. 76-1666.
    Quinn v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-1672.
    Abramson v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-1693.
    Lyles et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 76-5132.
    No. 76-5143.
    Aviles v. United States; and Soriano v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 535 F. 2d 658.


text:
    No. 76-5887.
    Bethea v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 76-6063.
    Kampshoff v. New York.
   App. Div.; Sup. Ct.‘ N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 76-6104.
    Friesen v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-6238.
    Keener v. Georgia.
   Sup. Ct. Ga. Cer-tiorari denied.


text:
    No. 76-6254.
    Hood v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 76-6296.
    Richards v. Texas et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6410.
    Meeks v. Jago, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-6429.
    Cruz v. Skelton et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6511.
    O’Berry v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6436.
    Negron v. United States.
   G. A. 2d Cir. Certiorari denied.


text:
    No. 76-6546.
    Picha v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-6548.
    No. 76-6549.
    Kelly v. United States; and Powell v. United States.
   C. A. 8th Cir. Certiorari denied. Reported below: 551 F. 2d 760.


text:
    No. 76-6552.
    Russillo v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 76-6553.
    Loman et vir v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 76-6589.
    House v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-6591.
    No. 76-6611.
    Jardan v. United States; and Hudson v. United States.
   C. A. 8th Cir. Certiorari denied. Reported below: 552 F. 2d 216.


text:
    No. 76-6597.
    Edmond v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-6702.
    Evans v. Florida.
   Dist. Ct. App. Fla,, 4th Dist. Certiorari denied.


text:
    No. 76-6709.
    Reece v. Montana.
   Sup. Ct. Mont. Cer-tiorari denied.


text:
    No. 76-6712.
    Finnegan v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 76-6787.
    Sanchez-Ruiz v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 76-6818.
    Barker v. Kentucky.
   Sup. Ct. Ky. Cer-tiorari denied.


text:
    No. 76-6822.
    Sanfratello v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 76-6825.
    Greathouse v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 76-6827.
    Freeman v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 76-6832.
    Yelardy v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-6847.
    Lipscomb v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 76-6854.
    Carter v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-6856.
    Fontana v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-6857.
    Kendrick v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 76-6866.
    Mastrian v. Wood, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-6492.
    Winfrey v. Illinois.
   C. A. 7th Cir. Cer-tiorari denied.

Mr. Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 76-301.
    Garrison, Warden v. Resendez.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 76-358.
    New York v. Brown.
   Ct. App. N. Y. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 76-471.
    New York v. Consolazio.
   Ct. App. N. Y. Motion, of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 76-959.
    Maggio, Warden v. Newman.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 76-871.
    Prestige Lincoln-Mercury, Inc., et al. v. Quality Mercury, Inc., et al.
   C. A. 8th Cir. Certiorari denied.

Mr. Justice Blackmun took no part in the consideration or decision of this petition.


text:
    No. 76-900.
    Erie Lackawanna Railway Co. v. Cole.
   C. A. 6th Cir. Motion of National Railway Labor Conference for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 76-978.
    Bridgeton Hospital Assn. et al. v. Doe et al.
   Sup. Ct. N. J. Certiorari denied.

Mr. Justice Marshall and Mr. Justice Blackmun would deny the petition, it appearing that the judgment below rests upon adequate state grounds. Mr. Justice Brennan took no part in the consideration or- decision of this petition.


text:
    No. 76-1411.
    St. Louis Board of Education v. Caldwell et al.
   C. A. 8th Cir. Motion of the individual respondents for leave to proceed in forma pauperis granted. Certiorari denied.

Mr. Justice Marshall took no part in the consideration or decision of this motion and petition.


text:
    No. 76-1564.
    Regan et al. v. Zurak et al.
   C. A. 2d Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 76-1441.
    Heublein, Inc., et al. v. Waters et al.
   C. A. 9th Cir. Motion of respondent Waters for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 76-1552.
    Marriott Corp. v. Richard et al.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Rehnquist took no part in the consideration or decision of this petition.


text:
    No. 76-6720.
    Richmond v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Adhering to our views that the death'penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would vacate the death sentence in this case.


text:
    No. 75-1013.
    No. 75-1105.
    No. 75-1153.
    No. 76-352.
    No. 76-986.
    No. 76-1179.
    No. 76-1267.
    Broncucia v. Colorado, Reid v. Memphis Publishing Co., Abood et al. v. Detroit Board of Education et al., Chappelle v. Greater Baton Rouge Airport District et al., Netelkos et al. v. United States, Ashcroft, Attorney General of Missouri v. Mattis, Cravero et al. v. United States,
   431 U. S. 937;

429 U. S. 964;

431 U. S. 209;

431 U. S. 159.

431 U. S. 953;

431 U. S. 171; and

430 U. S. 983. Petitions for rehearing denied.


text:
    No. 76-1271.
    No. 76-1422.
    No. 76-1469.
    No. 76-6191.
    No. 76-6287.
    No. 76-6329.
    No. 76 6452.
    No. 76-6458.
    No. 76-6543.
    No. 76-6647.
    Hoopes v. United States, Shanahan v. Rittenhouse, Prosecutor of Hunterdon County, Sperow et al. v. United States, Pierce v. Georgia, Hall v. Bureau of Employment Agencies, Robinson v. United States, Leland v. United States, Baxter v. Cornett, Warden, Lee v. Ewing, Cole, Erdman & Eubank et al., Alley v. Dodge Hotel et al.,
   431 U. S. 964;

431 U. S. 951;

431 U. S. 930;

431 U. S. 930;

431 U. S. 920;

431 U. S. 920;

431 U. S. 957;

431 U. S. 941;

431 U. S. 942; and

431 U. S. 958. Petitions for rehearing denied.


text:
    No. 76-1081.
    Mitchell et al. v. United States,
   431 U. S. 933. Petition for rehearing denied.

Mr. Justice Rehnquist took no part in the consideration or decision of this petition.


text:
    June 29, 1977
    No. 76-694.
    Buckley et al. v. McRae et al.
   Appeal from D. C. E. D. N. Y. dismissed. Second renewed application for stay, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. 76-1113.
    Califano, Secretary of Health, Education, and Welfare v. McRae et al.
   Appeal from D. C. E. D. N. Y. Judgment vacated and case remanded for further consideration in light of Maher v. Roe, 432 U. S. 464 (1977), and Beal v. Doe, 432 U. S. 438 (1977).


text:
    No. 76-1225.
    No. 76-1337.
    Consumers Union of the United States, Inc., et al. v. Virginia State Bar et al.; and Virginia State Bar et al. v. Consumers Union of the United States, Inc., et al.
   Appeals from E. D. E. D. Va. Judgment vacated and cases remanded for further consideration in light of Bates v. State Bar of Arizona, ante, p. 350. Reported below: 427 F. Supp. 506.


text:
    No. 74-5174.
    No. 74-5954.
    Eberheart v. Georgia; and Hooks v. Georgia.
   Sup. Ct. Ga. Petitioners in these cases were sentenced to death. Imposition and carrying out of the death penalty constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Coker v. Georgia, ante, p. 584. Motions for leave to proceed in forma pauperis and certiorari granted. Judgments vacated insofar as they leave undisturbed the death penalties imposed, and cases remanded for further proceedings. Reported below: No. 74-5174, 232 Ga. 247, 206 S. E. 2d 12; No. 75-5954, 233 Ga. 149, 210 S. E. 2d 668.


text:
    No. 35,
    Orig.
    United States v. Maine et al.
   It is ordered that the Honorable Walter E. Hoffman, Senior Judge of the United States District Court for the Eastern District of Virginia, is appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.

It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court. [For earlier orders herein, see, e. g., 423 U. S. 1.]


text:
    No. 73,
    Orig.
    California v. Nevada.
   Motion for leave to file bill of complaint granted. It is ordered that the Honorable Robert Van Pelt, Senior Judge of the United States District Court for the District of Nebraska, is appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.

It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court.


text:
    No. 76-1209.
    General Motors Corp. v. Stewart et al.
   C. A. 7th Cir. Certiorari denied.


text:
    NEW HAMPSHIRE v. MAINE
    No. 64,
    Orig.
    Decided June 14, 1976
    Decree entered October 3, 1977
   DECREE

The joint motion for entry of a final decree is granted.

It Is Ordered, Adjudged, and Decreed as Follows:

1. The Report of the Special Master is hereby approved, and the motion for entry of judgment by consent of plaintiff and defendant is granted.

2. This judgment determines the lateral marine boundary line between New Hampshire and Maine from the inner Portsmouth Harbor to the breakwater at the end of the inner Gosport Harbor in the Isles of Shoals.

3. The Order of the King in Council of April 9, 1740, in pertinent part, provided:

“And as to the Northern Boundary between the said Provinces, the Court Resolve and Determine, That the Dividing Line shall pass up thro the Mouth of Piscataqua Harbour and up the Middle of the River into the River of Newichwannock (part of which is now called Salmon Falls) and thro the Middle of the same to the furthest Head thereof and from thence North two Degrees Westerly until One Hundred and Twenty Miles be finished from the Mouth of Piscataqua Harbour aforesaid or until it meets with His Majestys other Governments And That the Dividing Line shall part the Isles of Shoals and run thro the Middle of the Harbour between the Islands to the Sea on the Southerly Side; and that the Southwesterly part of the said Islands shall lye in and be accounted part of the Province of New Hampshire And that the North Easterly part thereof shall lye in, and be accounted part of the Province of the Massachusets Bay and be held and enjoyed by the said Provinces respectively in the same manner as they now do and have heretofore held and enjoyed the same . . .

4. The terms “Middle of the River” and “Middle of the Harbour,” as used in the above-quoted Order, mean the middle of the main channel of navigation of the Piscataqua River and the middle of the main channel of navigation o-f Gosport Harbor.

5. The middle of the main channel of navigation of the Piscataqua River, commencing in the vicinity of Fort Point, New Hampshire, and Fishing Island, Maine, proceeding southward, is as indicated by the range lights located in the vicinity of Pepperrell Cove, Kittery Point, Maine, and it follows the range line as marked on the Coast and Geodetic Survey Chart 211, 8th Edition, Dec. 1, 1973.

6. The main channel of navigation of the Piscataqua River terminates at a point whose position is latitude 43°02/42.5// North and longitude 70°42/06// West. Said point has a computed bearing of 194°44'47.47" true and a computed distance of 1,554.45 metres (1,700 yards) from the Whaleback Lighthouse, No. 19, USCG-158, whose position is latitude 43°03'31.213" North and longitude 70°41/48.515// West (reference National Geodetic Survey).

7. The middle of the main channel of navigation of Gosport Harbor passes through a point indicated by the bottom of the BW “IS” Bell Buoy symbol as shown on Coast and Geodetic Survey Chart 211, 8th Edition, Dec. 1, 1973. The position of this point is latitude 42°58/51.6" North and longitude 70o37'17.5" West as scaled from the above-described chart.

8. The main channel of navigation of Gosport Harbor terminates at a point whose position is latitude 42°58/55" North and longitude 70°37/39.5" West. Said point has a computed bearing of 394°08/52.81" true and a computed distance of 1,674.39 metres (1,831 yards) from the Isles of Shoals Lighthouse, No. 20, USCG-158, whose position is latitude 42o58'01.710" North and longitude 70°37/25.590,/ West (reference National Geodetic Survey).

9. The lateral marine boundary between New Hampshire and Maine connecting the channel termination points described in paragraphs (6) and (8) above has been determined on the basis of the “special circumstances” exception to Article 12 of the Convention on the Territorial Sea and the Contiguous Zone (15 U. S. Treaties 1608) and of the location of the Isles of Shoals which were divided between the two States in their colonial grants and charters.

10. The lateral marine boundary line between New Hampshire and Maine connecting the channel termination points described above is the arc of a great circle (appears as a straight line on a Mercator projection) whose computed length is 9,257.89 metres (10,124.53 yards).

11. The lateral marine boundary line between New Hampshire and Maine from the Piscataqua River channel termination point proceeds toward Gosport Harbor channel termination point on a computed bearing of 139°20/27.22" true.

12. The lateral marine boundary line between New Hampshire and Maine from the Gosport Harbor channel termination point proceeds toward Piscataqua River channel termination point on a computed bearing of 319°17'25.43" true.

13. All positions in the preceding paragraphs are referred to the North American Datum of 1927.

14. The boundary line delimited hereinabove is depicted by a heavy black line with the words “Maine” and “New Hampshire” above and below that line on the Coast and Geodetic Survey Chart 211, 8th Edition, Dec. 1, 1973, filed with the Motion for Entry of Judgment by Consent.

15. The State of Maine, its officers, agents, representatives and citizens, are perpetually enjoined from disputing the sovereignty, jurisdiction and dominion of New Hampshire over the area adjudged to her by this decree; and the State of New Hampshire, its officers, agents, representatives and citizens, are perpetually enjoined from disputing the sovereignty, jurisdiction and dominion of Maine over the area adjudged to her by this decree.

16. The costs of this action shall be equally divided between the two States, and this case is retained on the docket for further orders, in fulfillment of the provisions of this decree.


author: Per Curiam.

text:
    COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, et al. v. RICHARDS et al.
    No. 76-1418.
    Decided October 11, 1977
   Per Curiam.

The motion, of D. C. Federation of Civic Associations et al. for leave to file a brief as amici curiae and the petition for a writ of certiorari are granted.

To stem the flow of traffic from commercial and industrial districts into adjoining residential neighborhoods, Arlington County, Va., adopted zoning ordinance § 29D. The ordinance directs the County Manager to determine those residential areas especially crowded with parked cars from outside the neighborhood. Free parking permits are then issued to residents of the designated areas for their own vehicles, to persons doing business with residents there, and to some visitors. To park an automobile without a permit in a restricted area between 8 a. m. and 5 p. m. on weekdays is a misdemeanor.

Acting under the ordinance, the'County Manager designated a restricted area in Aurora Highlands, a residential neighborhood near a large commercial and office complex. Commuters who worked in this complex and had regularly parked in the area sued in the Circuit Court of Arlington County to enjoin the enforcement of the ordinance on state and federal constitutional grounds. The Virginia Supreme Court ultimately held that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment.

As stated in its preamble, the Arlington ordinance is intended

“to reduce hazardous traffic conditions resulting from the use of streets within areas zoned for residential uses for the parking of vehicles by persons using districts zoned for commercial or industrial uses ... ; to protect those districts from polluted air, excessive noise, and trash and refuse caused by the entry of such vehicles; to protect the residents of those districts from unreasonable burdens in gaining access to their residences; to preserve the character of those districts as residential districts; to promote efficiency in the maintenance of those streets in a clean and safe condition; to preserve the value of the property in those districts; and to preserve the safety of children and other pedestrians and traffic safety, and the peace, good order, comfort, convenience and welfare of the inhabitants of the County.”

Conceding the legitimacy of these goals, the Virginia Supreme Court found that the ordinance's discrimination between residents and nonresidents “bears no reasonable relation to [the regulation’s] stated objectives,” and, therefore, that “the ordinance on its face offends the equal protection guarantee of the 14th Amendment.” 217 Va. 645, 651, 231 S. E. 2d 231, 235. We disagree.

To reduce air pollution and other environmental effects of automobile commuting, a community reasonably may restrict on-street parking available to commuters, thus encouraging reliance on car pools and mass transit. The same goal is served by assuring convenient parking to residents who leave their cars at home during the day. A community may also decide that restrictions on the flow of outside traffic into particular residential areas would enhance the quality of life there by reducing noise, traffic hazards, and litter. By definition, discrimination against nonresidents would inhere in such restrictions.

The Constitution does not outlaw these social and environmental objectives, nor does it presume distinctions between residents and nonresidents of a local neighborhood to be invidious. The Equal Protection Clause requires only that the distinction drawn by an ordinance like Arlington’s rationally promote the regulation’s objectives. See New Orleans v. Dukes, 427 U. S. 297, 303 (1976); Village of Belle Terre v. Boraas, 416 U. S. 1, 8 (1974). On its face, the Arlington ordinance meets this test.

Accordingly, the judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Marshall would grant the petition for cer-tiorari and set the case for oral argument.

       This condition is met when “the average number of vehicles [operated by persons whose destination is a commercial or industrial district] is in excess of 25% of the number of parking spaces on such streets and the total number of spaces actually occupied by any vehicles exceeds 75% of the number of spaces on such streets on the weekdays of any month . . . .”

       Although the state trial court found the ordinance invalid under the State and Federal Constitutions, the State Supreme Court rested its decision solely on the Equal Protection Clause of the Fourteenth Amendment.

       Restrictions on nonresident parking have sparked considerable litigation. See, e. g., South Terminial Corp. v. EPA, 504 F. 2d 646, 671-676 (CA1 1974) (restrictions upheld); Friends of the Earth v. EPA, 499 F. 2d 1118, 1125 (CA2 1974) (restrictions upheld); Commonwealth v. Petralia, - Mass. -, 362 N. E. 2d 513 (1977) (restrictions upheld); State v. Whisman, 24 Ohio Misc. 59, 263 N. E. 2d 411 (Ct. Com. Pleas, 1970) (restrictions invalidated); Georgetown Assn. of Businessmen v. District of Columbia, Civ. No. 7242-76 (D. C. Super. Ct., Aug. 9, 1976) (restrictions preliminarily enjoined). The United States as amicus curiae notes that parking restrictions to discourage automobile commuting have been, recommended by the Environmental Protection Agency to implement the Clean Air Amendments of 1970. See 38 Fed. Reg. 30629 (1973).


text:
    SOUTHERN OVERLYING CARRIER CHAPTER OF THE CALIFORNIA DUMP TRUCK OWNERS ASSOCIATION et al. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA
    No. 76-1526.
    Decided October 11, 1977
   Per Curiam.

In this appeal from a judgment of the Supreme Court of California, appellants challenge the constitutionality of the promulgation by appellee of certain rate tariffs applicable to dump truck carriers operating in California. They contend essentially that the tariffs violate their rights to due process and equal protection guaranteed by the Fourteenth Amendment because appellee issued them on the basis of findings unsupported by any evidence in the record. We have been informed by the parties that subsequent to the filing of the jurisdictional statement with this Court appellee reopened its proceedings at appellants’ request and is conducting additional evidentiary hearings concerning the contested regulations. These hearings may remove the basis for, or significantly alter the nature of, appellants’ constitutional attack. Consequently, we dismiss the appeal without prejudice to appellants’ raising of any appropriate federal claims following the completion of the additional proceedings. See Boston & M. R. Co. v. United States, 358 U. S. 68 (1958).

So ordered.

Mr. Justice Rehnquist,

dissenting.

Since this appeal is properly before us, prior practice indicates that we must either dispose of it on the merits or advance some principled reason for not doing so. The statutory distinction, drawn by Congress, between certiorari and appeal would seem to require no less. While this Court’s dismissal of the appeal in Boston & M. R. Co. v. United States, 358 U. S. 68 (1958), may be justified as an exercise of our supervisory power over the lower federal courts, a proper respect for the independence of the state systems requires that as a general rule we deal with appeals from their judgments-on the merits.

Since Art. Ill of the Constitution limits our jurisdiction to cases and controversies, we have occasionally dismissed a state appeal as moot, In re Sarner, 361 U. S. 233 (1960); Castellano v. Commission of Investigation, 361 U. S. 7 (1959), and we may be compelled to do so even though a state court has found a justiciable controversy under its own law, see Richardson v. Ramirez, 418 U. S. 24, 36 (1974). But there has been no suggestion of mootness here.

Indeed, all there is here is an apparent preference on the part of the Court not to decide the merits of this case just now. This is not, in my opinion, a defensible exception to the principle that we must treat appeals on their merits. I conclude that the federal constitutional claims rejected by the Supreme Court of California have no merit. Accordingly, I would dismiss the appeal for want of a substantial federal question. If other constitutional claims arise out of the reopened proceedings, they should be presented in an appeal from a subsequent final judgment.

      I am satisfied that, for purposes of our jurisdiction under 28 U. S. C. § 1257, the judgment of the Supreme Court of California is final. That judgment, denying appellants’ petition for review, has finally rejected their claim that the commission proceedings were constitutionally defective. That court has not exercised any “latent power ... to reopen or revise its judgment.” Market St. R. Co. v. Railroad Comm’n, 324 U. S. 548, 551 (1945). I fail to see how the subsequent actions of the parties can disturb the finality of that judgment. Nor does the Court suggest otherwise.


text:
    GENERAL ATOMIC CO. v. FELTER, JUDGE, et al.
    No. 76-1640.
    Decided October 31, 1977
   Per Curiam.

The petition for a writ of certiorari is granted.

General Atomic Co. (GAC) challenges the validity of an injunction issued by a New Mexico state court restraining it from filing and prosecuting actions against United Nuclear Corp. (UNC) in federal court. We reverse because under Donovan v. Dallas, 377 U. S. 408 (1964), it is not within the power of state courts to bar litigants from filing and prosecuting in personam actions in the federal courts.

The state-court injunction was issued in connection with one of several lawsuits arising from contracts entered into by UNC and various utility companies providing for the supply by UNC of uranium. GAC subsequently succeeded to UNC’s rights and obligations under the utility contracts and, pursuant to a 1973 agreement, UNC became obligated to supply GAC with uranium required under the utility contracts. As the result of a more than fivefold increase in the price of uranium between 1973 and mid-1975, UNC stopped delivery of the uranium and in August 1975 filed a declaratory judgment action in the District Court of Santa Fe County, N. M., against GAC and its constituent partners seeking to avoid its obligations under the uranium supply contract. In January 1976, GAC filed an interpleader complaint in the United States District Court for the District of New Mexico against UNC and four utilities seeking determinations binding on all parties as to their respective rights and obligations under its 1973 uranium supply agreement with UNC and its contracts to supply uranium to the utilities. The District Court dismissed the interpleader action on motion of all defendants on March 2, 1976, because of the lack of subject-matter jurisdiction. This dismissal, however, did not conclude the federal-court litigation. By early March 1976, the utilities had brought the following three federal proceedings against GAC: (1) Indiana & Michigan Electric Co. (I&M) v. GAC (an action for damages and specific performance filed in the Southern District of New York); (2) Commonwealth Edison Co. v. GAC (an action to compel arbitration filed in the Northern District of Illinois); (3) Duke Power Co. v. GAG (a demand for arbitration filed in the Western District of North Carolina).

On March 15, 1976, UNC, after being warned by I&M that GAC might attempt to implead it in the Southern District of New York action, obtained ex parte from the Santa Fe court a temporary order restraining GAC from “ 'instituting suit or filing a third-party complaint against [UNC].’ ” On April 2, 1976, after a hearing, the Santa Fe court issued a preliminary injunction broadly restraining GAC from filing or prosecuting any original, third-party, or arbitration actions relating to the subject matter of the Santa Fe lawsuit or including UNC as a party in any actions. Two actions previously filed in New Mexico federal court were exempted from the injunction. The New Mexico Supreme Court granted an alternative writ of prohibition on April 14, 1976, staying the enforcement of the injunction. Immediately after oral argument, on June 16, 1976, however, the court, without opinion, quashed the writ as improvidently granted. We subsequently granted GAC’s petition for certiorari, vacated the judgment of the New Mexico Supreme Court, and remanded the cause to that court to consider whether its judgment was based upon federal or state grounds, or both. 429 U. S. 973 (1976).

Upon remand, the New Mexico Supreme Court issued an opinion reaffirming its prior judgment and sustaining the injunction on the ground that its issuance was within the inherent equity jurisdiction of the Santa Fe court and was not prohibited by Donovan v. Dallas, supra. It thought that Donovan is not applicable “where a party is currently proceeding in federal court and where any further federal action would be based upon the same issues and events for the purpose of harassment,” and because the Santa Fe court’s injunction, unlike that adjudicated in Donovan, “does not directly or indirectly affect any proceeding in the district court or appellate courts of the United States where jurisdiction has attached.” We conclude that the New Mexico Supreme Court’s interpretation of Donovan is untenable and that the injunction is in direct conflict with that decision and the Supremacy Clause of the Constitution.

In Donovan v. Dallas, supra, a plaintiff class sought an injunction against construction of an airport runway and issuance of municipal bonds for that purpose. After losing in state court and exhausting their appeals, many of the named plaintiffs together with a group of new plaintiffs filed an action in United States District Court raising Issues substantially identical to those already litigated in the state action and seeking similar relief. The city of Dallas moved to dismiss the federal action and, as the result of a favorable judgment in the Texas Supreme Court, obtained an injunction from the Texas Court of Civil Appeals prohibiting all members of the original class from further prosecution of the pending federal action and from “ 'filing or instituting . . . any further litigation, lawsuits or actions in any court, the purpose of which is to contest the validity of the airport revenue bonds ....’” 377 U. S., at 410. When the District Court granted the city’s motion to dismiss following the issuance of the injunction, some of the plaintiffs took an appeal and others filed a second federal action seeking to enjoin Texas state courts from enforcing the injunction. Subsequently, the Texas Court of Civil Appeals found in contempt both the plaintiffs who had appealed and those who had filed the second federal action. We reviewed the convictions of both sets of plaintiffs and held the injunction to be invalid because “state courts are completely without power to restrain federal-court proceedings in in personam actions . . . .” Id., at 413. Our holding was premised on the fact that the right to litigate in federal court is granted by Congress and, consequently, “cannot be taken away by the State.” Ibid.

The New Mexico Supreme Court clearly erred in concluding that Donovan precludes state courts only from enjoining litigants from proceeding further with federal suits in which jurisdiction has already attached at the time of the issuance of the injunction but permits state-court injunctions against additional suits in federal court. In Donovan, the Texas Supreme Court not only ordered an injunction against further prosecution of the then-pending federal case but, because “[t]here is indication in the history of this matter that it has reached the point of vexatious and harassing litigation,” also authorized the Court of Civil Appeals to enjoin the filing of additional suits if it concluded that such suits “may be filed.” The injunction then issued by the Court of Civil Appeals forbade the filing of any new federal suits as well as further proceedings in pending actions; and the ensuing contempt judgments punished both the continued prosecution of the pending federal action and the filing of the additional suit in federal court. We reversed the judgment of the Texas Supreme Court authorizing the injunction and also vacated all the contempt judgments. It is therefore clear from Donovan that the rights conferred by Congress to bring in 'personam actions in federal courts are not subject to abridgment by state-court injunctions, regardless of whether the federal litigation is pending or prospective.

We also reject the New Mexico Supreme Court's attempt to distinguish Donovan on the ground that GAC was currently proceeding in federal court and that any additional suits would be for the purpose of harassment and therefore enjoin-able. In authorizing an injunction against further federal proceedings, the Texas Supreme Court expressly recognized the indication of “vexatious and harassing litigation.” Indeed, Donovan presented as compelling a case as there could be for permitting a state court to enjoin the further prosecution of vexatious federal proceedings. It involved a suit filed in federal court after the issuance of a final state-court judgment deciding the principal claims pressed in the federal action adversely to the federal plaintiffs. Moreover, as the Donovan opinion pointed out, the pendency of the federal action had the effect of rendering the state-court judgment ineffective, because Texas law provided that the bonds could not be issued while litigation challenging their validity was pending. We nevertheless overturned the state-court injunction.

There is even less basis for the injunction in this case. Here there is no final state-court judgment, since UNO's original action against GAC in the Santa Fe court has not yet been tried. In addition, GAC's opportunity to fairly litigate the various claims arising from this complex action would be substantially prejudiced if the injunction were allowed to stand. What the New Mexico Supreme Court has described as “harassment” is principally GAC’s desire to defend itself by impleading UNC in the federal lawsuits and federal arbitration proceedings brought against it by the utilities. This, of course, is something which GAC has every right to attempt to do under Fed. Rule Civ. Proc. 14 and the Federal Arbitration Act. The right to pursue federal remedies and take advantage of federal procedures and defenses in federal actions may no more be restricted by a state court here than in Donovan. Federal courts are fully capable of preventing their misuse for purposes of harassment.

The judgment of the New Mexico Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Blackmun would not dispose of this case summarily but would grant certiorari and hear argument.

Mr. Justice Rehnquist,

dissenting.

The Court holds that a state court lacks the power to enjoin persons subject to its jurisdiction from initiating duplicative and vexatious litigation in the federal courts, litigation which had not been commenced at the time of the state-court injunction. While this conclusion is arguably supported by a portion of the holding of Donovan v. Dallas, 377 U. S. 408 (1964), it is in many ways contrary to the reasoning of that decision, and undermines the historic power of courts of equity to guard against abuse of judicial proceedings. Because Donovan involves a procedural rule which has application in myriad situations, I believe that its holding should be in part re-examined.

In Swift & Co. v. Wickham, 382 U. S. 111, 116 (1965), the Court said:

“Unless inexorably commanded by statute, a procedural principle of this importance should not be kept on the books in the name of stare decisis once it is proved to be unworkable in practice; the mischievous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great.”

The author of Donovan was particularly cognizant of the sensitive relationship between state and federal courts. See Younger v. Harris, 401 U. S. 37 (1971); Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281, 287 (1970). Because the rule in Donovan implicates that relationship, I would not extend its holding as the Court now does.

The Court in Donovan based its decision on the “general rule” that “state and federal courts would not interfere with or try to restrain each other’s proceedings.” 377 U. S., at 412. Such a general rule of parity implies that, where a federal district court has power to enjoin the institution of proceedings in state court, a state court must have a similar power to forbid the initiation of vexatious litigation in federal court.

Congress, in enacting the Anti-Injunction Act limiting the authority of United States courts to stay proceedings in any court of a State, 28 U. S. C. § 2283, excepted from the limitation an injunction “where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” See Mitchum v. Foster, 407 U. S. 225, 231-236 (1972); Atlantic Coast Line, supra, at 294-296. Cf. Kline v. Burke Constr. Co., 260 U. S. 226 (1922). If Congress saw fit to create such an exception to the “ [1] egislative policy [which] is here expressed in a clear-cut prohibition,” Clothing Workers v. Richman Bros. Co., 348 U. S. 511, 516 (1955), it could not have intended to deny the same limited injunctive authority to state courts of general jurisdiction. Neither the Supremacy Clause of Art. VI of the Constitution or the congressional grants of jurisdiction to federal courts in any way militate against the conclusion that both state and federal courts possess the authority to protect jurisdiction which they have acquired from being undercut or nullified by suits later instituted in the courts of the other jurisdiction.

Unlike the Texas Court of Civil Appeals in Donovan, the New Mexico District Court in this case enjoined only the initiation of new proceedings, specifically excepting two federal-court actions already begun by petitioner and its constituent partners. Any ambiguity inherent in the wording of the District Court’s injunction with regard to other proceedings has been authoritatively resolved by the Supreme Court of New Mexico, which held: “The injunction is directed only towards the institution of future litigation wherein no federal or state court has yet to acquire jurisdiction.” 90 N. M. 120, 124, 560 P. 2d 541, 545 (1977). The existence of power in the state courts to guard against the abuse of the federal courts for purposes of harassment is not foreclosed by Donovan, even though this Court, in vacating the contempt citation of those parties who initiated a federal action subsequent to the state order, necessarily held that the Texas court lacked such power in that instance. There, in the subsequent action, the federal plaintiffs sought to enjoin the Supreme Court of Texas from interfering with a pending action which this Court held they had a right to maintain. The conclusion that the New Mexico court has the power to forbid petitioner from involving respondent in a multitude of separate actions with different parties does not undercut the holding of Donovan that a federal plaintiff may seek to protect his right to proceed with a pending suit.

The Supreme Court of New Mexico has acted consistently with both the holding and the reasoning of Donovan, and I would therefore affirm its judgment.

       After one of the defendants removed the entire case to the United States District Court for the District of New Mexico under 28 U. S. C. § 1441 (c), UNC on December 31, 1975, took a voluntary nonsuit as of right pursuant to Fed. Rule Civ. Proc. 41 (a) (1) (i). The same day UNC instituted a new action virtually identical to the previous one, except that it named only GAC as a defendant.

       The Tenth Circuit affirmed the dismissal on April 8, 1977. General Atomic Co. v. Duke Power Co., 553 F. 2d 53. On January 23, 1976, Gulf Oil Corp., one of GAC's constituent partners, had filed a declaratory judgment action in the United States District Court for the District of New Mexico concerning the validity of a release by UNC of certain claims against it. The action was dismissed on September 29, 1976, on the ground that the issue presented could be decided in the litigation pending in the Santa Fe court.

       Pet. for Cert. 9-10. UNC had originally applied for a temporary restraining order on January 19, 1976, in the Santa Fe court to prevent GAC from instituting any additional suits against UNC. This motion was denied.

       “IT IS THEREFORE ORDERED that General Atomic Company, its partners, privies, agents, servants and employees, are hereby preliminarily enjoined and prohibited from filing or prosecuting any other action or actions against United Nuclear Corporation in any other forum relating to any rights, claims or the subject matter of this action. This injunction prohibits the institution or prosecution of ordinary litigation, third party proceedings, cross-claims, arbitration proceedings or any other method or manner of instituting or prosecuting actions, claims or demands relating to the subject matter of this lawsuit, or including United Nuclear Corporation as a party thereto. However, the case of Gulf Oil Corporation v. United Nuclear Corporation, Civil Cause No. 76-032-B, currently pending in the United States District Court for the District of New Mexico, is excepted from the operation of this preliminary injunction, as is the appeal currently pending before the Tenth Circuit Court of Appeals in General Atomic Co. v. Duke Power Company, et al., No. 76-1152. The injunction herein against defendant shall bind Plaintiff to the same terms.” App. to Pet. for Cert. 3a-4a.

       90 N. M. 120, 560 P. 2d 541 (1977).

        Id., at 123, 560 P. 2d, at 544.

        Id., at 124, 560 P. 2d, at 545. This statement is not factually accurate. See n. 11, infra.

        Dallas v. Dixon, 365 S. W. 2d 919, 927 (1963).

       377 U. S., at 410-411; Dallas v. Brown, 368 S. W. 2d 240 (Tex. Civ. App. 1963).

       The New Mexico Supreme Court apparently ignored the fact that both of the federal actions exempted from the injunction had been dismissed long before the issuance of its opinion. Indeed, the interpleader action was dismissed prior to the issuance of the injunction. See supra, at 13, and n. 2.

       As a result of the injunction, GAC was even prevented from implead-ing UNC in the Southern District of New York action instituted by I&M against GAC prior to its issuance. GAC did subsequently succeed in obtaining the dismissal of this action pursuant to Fed. Rule Civ. Proc. 19 on the ground that UNC was a necessary party which could not be joined because of the injunction, but only at the price of surrendering its right to litigate its disputes with I&M in a federal forum. Indiana & Michigan Electric Co. v. Gulf Oil Corp., 76 Civ. 881 (SDNY Jan. 5, 1977). The injunction has also prevented GAC from asserting claims against UNC under the arbitration provision of the 1973 uranium supply agreement in the pending arbitration proceeding instituted against GAC and UNC by Commonwealth Edison prior to its issuance, even though the District Court granted Commonwealth’s demand for arbitration and the Seventh Circuit has affirmed. Commonwealth Edison Co. v. Gulf Oil Corp., 400 F. Supp. 888 (ND Ill. 1976), aff’d, 541 F. 2d 1263 (1976). In addition, the Western District of North Carolina federal court has refused to stay arbitration between Duke and GAC in a proceeding also instituted prior to the injunction, despite GAC’s contention that UNC was an indispensable party to any such arbitration proceeding which it was prevented from impleading by the injunction. The court acknowledged, however, that UNC would be a proper party to the proceeding. General Atomic Co. v. Duke Power Co., 420 F. Supp. 215 (1976).
      As the Tenth Circuit recognized in General Atomic Co.v. Duke Power Co., 553 F. 2d, at 56, 58, GAC is exposed to a substantial risk of inconsistent adjudications in separate proceedings. For example, GAC fears that the arbitrators may find that GAC is obligated to deliver uranium to Commonwealth at the contract prices, while the Santa Fe court may hold, on the contrary, that GAC is not so obligated and excuse UNC from performance to GAC on the ground that its obligations are contingent upon GAC’s contractual obligations to Commonwealth. Pet. for Cert. 20-22.

       9 U. S. C. § 2 et seq. It is impossible, of course, to foresee all the occasions during the course of this complex litigation in which GAC would justifiably assert claims in federal proceedings.