source: Caselaw Access Project

author: Per Curiam. Mr. Justice White,

license: Public Domain

text:
    MORLAND et al. v. SPRECHER, JUDGE, UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT, et al.
    No. 78-1904.
    Decided July 2, 1979
   Per Curiam.

On March 26, 1979, the District Court for the Western District of Wisconsin entered a preliminary injunction restraining petitioners from publishing or otherwise disseminating an article entitled “The H-Bomb Secret: How We Got It, Why We’re Telling It.” On June 21, 1979, one judge of the Court of Appeals for the Seventh Circuit denied in part petitioners’ motion for an expedited hearing of their appeal. That hearing is currently set for September 10,1979.

Petitioners seek a writ of mandamus to the Court of Appeals ordering it to expedite their appeal. They claim that parties who have been enjoined from engaging in constitutionally protected speech have a right to prompt appellate review of that injunction. See National Socialist Party v. Skokie, 432 U. S. 43 (1977). See also Nebraska Press Assn. v. Stuart, 423 U. S. 1319 (1975) (Blackmun, J., in chambers); Nebraska Press Assn. v. Stuart, 423 U. S. 1327 (1975) (Blackmun, J., in chambers). In view of their conduct in prosecuting their appeal before the Court of Appeals, however, we conclude that petitioners have effectively relinquished whatever right they might otherwise have had to expedited consideration.

The District Court's preliminary injunction was entered on March 26, 1979, yet petitioners waited until June 15, 1979, to file a meaningful motion for expedited review before the Court of Appeals. Prior to that time, petitioners (1) waited two weeks after the District Court entered its injunction before filing a notice of appeal, and then waited another week before proposing that the appeal be accorded special scheduling treatment; (2) in that proposal, suggested an 89-day briefing schedule that — as they knew — provided for oral argument in the case, at the earliest, 10 days after the Court of Appeals’ summer recess was to begin; (3) at a subsequent prehearing conference held by the Senior Staff Attorney of the Court of Appeals, asked that the briefing and argument schedule they had originally proposed be extended by an additional three weeks, i. e., into the latter half of July; (4) participated in a second prehearing conference in which a panel of the Court of Appeals discussed scheduling with the parties, and did not object either to the briefing schedule ordered by the court or to the September 10 hearing date; and (5) pursuant to the schedule discussed at the conference, took 81 days to file their opening brief on the merits. It was only upon the filing of that brief on June 15, 1979 (just four days before the Seventh Circuit’s scheduled recess was to begin), that they sought expedition. Accordingly, as proposed by petitioners, the onus of expedition would have fallen entirely on the Government, which would have had a severely limited opportunity to respond to petitioners’ opening brief, and on the Court of Appeals, whose conscientious attempts during the preceding two months — by way of two prehearing conferences and numerous additional discussions with the parties — to manage its docket in an orderly fashion, would have been frustrated.

It is true that between May 8,1979, and June 15,1979, petitioners were unsuccessfully seeking reconsideration by the District Court based on newly discovered information. But that information did not affect the essentials of petitioners’ legal argument in favor of expedited review of the District Court’s March 26 order — i. e., that ever since the order was issued, petitioners had been operating under an allegedly unconstitutional and irreparably injurious prior restraint against the publication of information subject to First Amendment protection. Because they chose not to make that argument to the Court of Appeals until long after it had ripened, and until they had taken close to three months to prepare their own brief on the merits, petitioners forbore any right to expedition that the Constitution might otherwise have afforded them.

The motion for leave to file a petition for writ of mandamus is

Denied.

Mr. Justice White,

with whom Mr. Justice Brennan joins, dissenting.

It is my view that the Court of Appeals, by declining to hear arguments until the conclusion of its summer recess, has unduly delayed plenary consideration of this case. And I do not agree with my Brothers that the petitioners have forfeited whatever rights to an early hearing they might otherwise have had. Our cases indicate that the proffered justification for an injunction against publication should be considered and verified or rejected by appellate courts without unnecessary delay. See New York Times Co. v. United States, 403 U. S. 713 (1971); United States v. Thirty-seven Photographs, 402 U. S. 363 (1971); Freedman v. Maryland, 380 U. S. 51 (1965); cf. National Socialist Party v. Skokie, 432 U. S. 43 (1977); Nebraska Press Assn. v. Stuart, 423 U. S. 1319 (1975) (Black-must, J., in chambers); Nebraska Press Assn. v. Stuart, 423 U. S. 1327 (1975) (Blackmun, J., in chambers). As I see it, the Court of Appeals should schedule a hearing herein at the earliest date that is both practicable and consistent with mature consideration of the questions involved. I would have preferred the Court to have reached and stated this conclusion and then, on the assumption that the Court of Appeals would follow this Court’s suggestion, to have withheld the issuance of the writ of mandamus. See Connor v. Coleman, 440 U. S. 612, 613-614 (1979); Connor v. Coleman, 425 U. S. 675, 679 (1976); Bucolo v. Adkins, 424 U. S. 641, 644 (1976) ; Been v. Hickman, 358 U. S. 57, 58 (1958); cf. National Socialist Party v. Skokie, supra, at 44; Nebraska Press Assn. v. Stuart, supra, at 1325-1326. Of course, with or without advancement of the hearing schedule in the Court of Appeals, the petitioners, pursuant to 28 U. S.. C. § 1254 (1), may request this Court to grant certiorari prior to judgment in the Court of Appeals.


author: Per Curiam.

text:
    MOORE v. DUCKWORTH, WARDEN
    No. 78-5795.
    Decided July 2, 1979
   Per Curiam.

Upon a plea of not guilty by reason of insanity, the petitioner was found guilty by an Indiana jury of murder in the second degree. The Indiana Supreme Court upon direct appeal affirmed the conviction. Moore v. State, 260 Ind. 154, 293 N. E. 2d 28 (1973). The petitioner then sought a writ of habeas corpus in a Federal District Court pursuant to 28 U. S. C. § 2254. He claimed, inter alia, that he had been denied due process of law because he had been convicted upon evidence allegedly insufficient to prove beyond a reasonable doubt that he was sane at the time the victim was killed. The District Court denied the writ, and the Court of Appeals for the Seventh Circuit affirmed. 581 F. 2d 639 (1978).

In holding that the District Court had been correct in rejecting the petitioner’s challenge to the sufficiency of the evidence supporting his conviction, the Court of Appeals stated that such a challenge presents a federal due process issue “only where a state court conviction is totally devoid of evi-dentiary support.” Id., at 642. The petitioner claims that this was error, and he urges that under In re Winship, 397 U. S. 358 (1970), a state prisoner is entitled to a determination whether the record evidence could support a finding of guilt beyond a reasonable doubt. We agree. Jackson v. Virginia, ante, p. 307. Nonetheless, under the circumstances of this ease we conclude that a remand for further consideration in light of Jackson v. Virginia would be inappropriate.

The petitioner has contended that the prosecution failed to meet its burden because it relied upon lay witnesses to prove sanity without providing any expert testimony to rebut his expert opinion testimony. But, as the Court of Appeals noted, under Indiana law sanity may be established by either expert or lay testimony. The state appellate court, in an opinion thoroughly discussing the record evidence and the petitioner’s sufficiency challenge, concluded that the lay evidence in this case could have been credited by the jury, and it held that the State’s evidence was fully sufficient to support a jury finding beyond a reasonable doubt that the petitioner was sane at the time of the killing.

The Court of Appeals properly deferred to the Indiana law governing proof of sanity. Although that court applied an improper legal standard when it considered the petitioner’s due process claim, it is clear from its opinion that the essence of that challenge concerned the rule of state law that permits the State to rely on lay proof of sanity. It is likewise clear from the record that under the standard enunciated in Jackson v. Virginia, the evidence in support of this conviction was constitutionally adequate.

Accordingly, the writ of certiorari is granted, and the judgment of the Court of Appeals is affirmed.

It is so ordered.

      The District Court found, and the Court of Appeals' agreed, that the petitioner had failed to exhaust his available state remedies on all but his challenge to the sufficiency of the evidence. The petitioner takes issue with this ruling, but we are satisfied that it was correct.


text:
    June 25, 1979
    No. 76-6718.
    French v. Blackburn.
   Affirmed on appeal from D. C. M. D. N. C.


text:
    No. 78-449.
    Califano, Secretary of Health, Education, and Welfare v. Stevens et al.
   Affirmed on appeal from D. C. N. D. Ohio. Califano v. Westcott, ante, p. 76.


text:
    No. 78-603.
    Califano, Secretary of Health, Education, and Welfare v. Browne et al.
   Appeal from D. C. E. D. Pa. Motion of appellee Mary Browne for leave to proceed in forma pauperis granted. Judgment affirmed. Califano v. Westcott, ante, p. 76.


text:
    No. 78-1614.
    No. 78-1620.
    School District of Pittsburgh v. Department of Education of Pennsylvania et al.; and Pequea Valley School District v. Department of Education of Pennsylvania et al.
   Appeals from Sup. Ct. Pa. dismissed for want of substantial federal question. Mr. Justice Blackmun, Mr. Justice Powell, and Mr. Justice Stevens would note probable jurisdiction and set cases for oral argument. Reported below: 483 Pa. 539, 397 A. 2d 1154.


text:
    No. 78-5658.
    Willie v. Louisiana.
   Appeal from Sup. Ct. La. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-1638.
    Womack v. City of Norfolk.
   Appeal from Sup. Ct. Va. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall would treat the appeal as a petition for certiorari, as does the Court, and would grant certiorari and reverse the conviction.


text:
    No. 78-5373.
    Washington v. Texas.
   Appeal from County Ct. at Law No. 1, Travis County, Tex. Motion of appellant for leave to proceed in forma pauperis granted, judgment vacated, and case remanded for further consideration in light of Brown v. Texas, ante, p. 47.


text:
    No. 78-162.
    RGP, Inc., et al. v. Omaha Indian Tribe et al.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Wilson v. Omaha Indian Tribe, 442 U. S. 653 (1979).


text:
    No. 78-600.
    Percy, Secretary, Department of Health and Social Services of Wisconsin v. Terry.
   Sup. Ct. Wis. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Parham v. J. R., 442 U. S. 584 (1979), and Greenholtz v. Inmates of Nebraska Penal Complex, 442 U. S. 1 (1979).


text:
    No. 78-1136.
    California v. P. S. W.
   Ct. App. Cal., 2d App. Dist. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Fare v. Michael C., 442 U. S. 707 (1979).


text:
    No. 78-567.
    Robbins v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Arkansas v. Sanders, 442 U. S. 753 (1979).


text:
    No. 78-1273.
    National Jewish Hospital & Research Center v. National Labor Relations Board.
   C. A. 10th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of NLRB v. Baptist Hospital, Inc., 442 U. S. 773 (1979).


text:
    No. 78-1398.
    Shiffrin et al. v. Bratton et al.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Touche Ross & Co. v. Redington, 442 U. S. 560 (1979).


text:
    No. 78-5617.
    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 Sandstrom v. Montana, 442 U. S. 510 (1979).


text:
    No. 78-6179.
    Whisenhunt v. Georgia.
   Ct. App. Ga. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Sandstrom v. Montana, 442 U. S. 510 (1979), and Ulster County Court v. Allen, 442 U. S. 140 (1979).


text:
    No. D-155.
    In re Disbarment of Reaves.
   Disbarment entered. [For earlier order herein, see 440 U. S. 932.]


text:
    No. A-1021 (78-1749).
    Blakley v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Application for bail, addressed to Mr. Justice Marshall and referred to the Court, denied.


text:
    No. 78-1654.
    Branti v. Finkel et al.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 77-6956.
    Chaney v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-493.
    No. 78-526.
    Redington, Trustee v. Touche Ross & Co. et al. ; and Securities Investor Protection Corp. v. Touche Ross & Co. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1081.
    Dawson v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 78-1441.
    Banta et al. v. Firefighters Institute for Racial Equality et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-1765.
    Serbian Eastern Orthodox Diocese for the United States and Canada, an Illinois Corporation, et al. v. Serbian Eastern Orthodox Diocese for the United States and Canada, a Religious Body, et al.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 78-5041.
    Phillips v. Missouri.
   Sup. Ct. Mo. Cer-tiorari denied.


text:
    No. 78-5712.
    De Marco v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6283.
    Adams v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 78-6730.
    Gunter v. Kentucky.
   Sup. Ct. Ky. Cer-tiorari denied.


author: Mr. Justice Rehnquist,

text:
    No. 77-1032.
    City of Columbus et al. v. Leonard et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Rehnquist,

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

dissenting.

Respondents were dismissed from their positions with the Columbus Police Department on May 31,1971, for deliberately removing the American flag emblem from their uniforms during a public demonstration. Four days later, respondents requested hearings before the Police Hearing Board, a state-created board to which officers could appeal their discharges. Counsel for respondents informed city officials that respondents “are anxious to have a hearing on these matters and request that all efforts be made to give us an early hearing date.” The Deputy Chief of Police responded by promptly notifying respondents that a “Police Hearing Board will be scheduled in the near future to hear your appeal and you will be notified of the time, date and place the hearing will be conducted.” Only a week after receiving the letter granting their request for a Police Hearing Board, respondents, apparently not satisfied to invoke only the state review process, also filed the federal civil rights action now before us. Respondents claimed, inter alia, that the failure to accord them a hearing before they were discharged violated both their Fourteenth Amendment right to due process and Columbus City Ordinance No. 71-7 (1971).

Hearings were initially scheduled before the Police Hearing Board, for June 28, 1971, but, at the request of respondents' counsel, postponed until mid-July. The dismissals of respondents Leonard and White were unanimously upheld by the Board; the remaining dismissals were upheld on 4-2 votes. Although review of the Board's decisions was clearly available in state court, see Ball v. Police Committee of City of Atlanta, 136 Ga. App. 144, 145, 220 S. E. 2d 479, 480 (1975), respondents chose not to avail themselves of the further state proceedings. Instead, having lost in the first stage of the state remedial process, respondents decided to change horses and pursue their action in federal court.

On April 17, 1975, the District Court for the Middle District of Georgia dismissed respondents’ federal action. The District Court ruled that respondents could not pursue state remedies part way and then switch in midstream to a federal forum; having chosen initially to invoke state remedies, that route must be exhausted.

“[Respondents] seek to relitigate the same cause of action, based on the same set of facts, merely by changing legal theories and sovereignties. They do so despite the availability of a state process of judicial review of decisions of quasi-judicial tribunals such as the Police Hearing Board.”

Dismissal of respondents’ complaint was also supported by federal principles of abstention, since respondents claim for relief relied in part

“on the alleged misapplication of a local ordinance which [respondents] ask this Court to construe in their prayers for relief. The present federal action seeking reinstatement would have been obviated had the [respondents] prevailed in their view before any of the four levels of state tribunals available to them.”

The Court of Appeals for the Fifth Circuit reversed, holding, without detailed analysis, that the District Court should have reached the merits of respondents’ claims. 565 F. 2d 957.

Petitioners contend, among other arguments, that respondents should be required to exhaust their state remedies before filing an action under 42 TJ. S. C. § 1983 and that the District Court therefore properly dismissed the action. In Monroe v. Pape, 365 U. S. 167 (1961), this Court held that one seeking redress for the deprivation of federal rights need not initiate state proceedings before filing an action under § 1983. 365 U. S., at 183. Here, however, we are confronted by a quite different and unanswered exhaustion issue — “that of the deference to be accorded state proceedings which have already been initiated and which afford a competent tribunal for the resolution of federal issues.” Cf. Huffman v. Pursue, Ltd., 420 U. S. 592, 609-610, n. 21 (1975) (emphasis added). The District Court held that dismissal was in order under a doctrine that is best described as “they who invoke must also exhaust.” Such a rule is not precluded by our prior decisions and indeed would seem to be supported by the logic of prior opinions. I would therefore grant certiorari to consider whether the Court of Appeals erred when it concluded that the District Court should have reached the merits of respondents’ action.

Principles of federal-state comity have given rise to a number of limitations on the exercise of federal jurisdiction over state laws and actions. The equitable restraint doctrine enunciated in Younger v. Harris, 401 U. S. 37 (1971), holds that, absent “exceptional circumstances,” a federal court should not interfere with pending state criminal or civil proceedings in which the State has an important interest. See, e. g., Huffman v. Pursue, Ltd., supra; Juidice v. Vail, 430 U. S. 327 (1977); Trainor v. Hernandez, 431 U. S. 434 (1977); Moore v. Sims, 442 U. S. 415 (1979).

The federal action must be dismissed not only where it threatens to interfere with active state proceedings but also where state proceedings have ended because of the failure of the federal plaintiff to appeal an adverse state decision. In Huffman v. Pursue, Ltd., supra, for example, a state trial court ordered the respondent’s theater closed and all personal property used in its operation seized and sold. Rather than appealing this decision, the respondent brought a § 1983 action in federal court seeking to enjoin enforcement of the state court’s judgment. We held that the Federal District Court’s action in granting the injunction was improper under Younger. Even though the state trial court judgment might have become final, “a necessary concomitant of Younger is that a party . . . must exhaust his state appellate remedies before seeking relief in the District Court.” 420 U. S., at 608.

“Virtually all of the evils at which Younger is directed would inhere in federal intervention prior to completion of state appellate proceedings, just as surely as they would if such intervention occurred at or before trial. Intervention at the later stage is if anything more highly duplicative, since an entire trial has already taken place, and it is also a direct aspersion on the capabilities and good faith of state appellate courts. . . .
“Federal post-trial intervention, in a fashion designed to annul the results of a state trial, also deprives the States of a function which quite legitimately is left to them, that of overseeing trial court dispositions of constitutional issues which arise in civil litigation over which they have jurisdiction. We think this consideration to be of some importance because it is typically a judicial system’s appellate courts which are by their nature a litigant’s most appropriate forum for the resolution of constitutional contentions. Especially is this true when, as here, the constitutional issue involves a statute which is capable of judicial narrowing. In short, we do not believe that a State’s judicial system would be fairly accorded the opportunity to resolve federal issues arising in its courts if a federal district court were permitted to substitute itself for the State’s appellate courts.” Id., at 608-609.

Here, the state proceedings were initiated by respondents rather than by the State. But this only strengthens the rationale for requiring respondents to exhaust their state appellate remedies. Respondents invoked the resources of the State to vindicate what they believed to have been illegal dismissals. Having lost the first round of this contest, they should not be allowed to abandon it and transfer the contest to another arena. As in Huffman, such belated forum shifting is “highly duplicative” and “a direct aspersion on the capabilities and good faith of state appellate courts.” Action by a federal district court also would deprive the state appellate courts “of a function which quite legitimately is left to them.”

A requirement that respondents exhaust state remedies that they have themselves initiated is particularly appropriate here where respondents’ claim for relief rests in part on state law. On appeal, the Georgia courts may well have found that the dismissal of respondents without a hearing was unlawful under Columbus City Ordinance No. 71-7 (1971), obviating much, if not all, of respondents’ federal claim for relief and avoiding the federal constitutional issues that the District Court may now have to decide. In Boehning v. Indiana Employees Assn., 423 U. S. 6 (1975), a discharged employee brought suit in federal court under § 1983 alleging procedural due process violations even though “controlling state statutes, as yet unconstrued by the state courts, might require the hearing demanded . . . and so obviate decision on the constitutional issue.” 423 U. S., at 6. We held that under these circumstances the District Court properly decided to “abstai[n] until construction of the Indiana statutes had been sought in the state courts.” Ibid. The similar abstention concerns present here, in combination with respondents’ invocation of their state remedies, support the District Court’s dismissal of respondents’ action because of their failure to exhaust state appellate remedies.

As noted earlier, Monroe v. Pape is not to the contrary. In Monroe, we merely held that a federal plaintiff need not initiate state proceedings before filing a § 1983 action. According to the Court, this conclusion flowed from the purpose of the Civil Rights Act “to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.” 365 U. S., at 174 (emphasis added). Here, after deliberately invoking state review proceedings, respondents should not be heard to challenge the state procedures as either “not available in practice” or otherwise inadequate. Nor indeed have respondents attempted to raise such a challenge.

Quite apart from this distinction, the time may now be ripe for a reconsideration of the Court’s conclusion in Monroe that the “federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Id., at 183. As noted earlier, the Court believed that this conclusion followed from the purpose of the Civil Rights Act “to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.’’ Id., at 174 (emphasis added). But this purpose need not bar exhaustion where the State can demonstrate that there is an available and adequate state remedy. Indeed, scholarly commentators have soundly criticized the Court for holding to the contrary. See, e. g., Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv. L. Rev. 1486 (1969). In Monell v. New York City Dept. of Social Services, 436 U. S. 658, 663 (1978), the Court, in examining another section of Monroe v. Pape, “overrule [d] Monroe v. Pape . . . insofar as it holds that local governments are wholly immune from suit under § 1983.” The Court having reopened that portion of Monroe v. Pape, I would take the opportunity afforded by this case to reconsider the Court’s conclusion as to exhaustion of state remedies. Not only is the Court’s conclusion open to serious question, as noted earlier, but the conclusion was reached in an almost off-the-cuff manner, in distinct contrast to that portion of Monroe overruled by the Court in Monell.

For all of these reasons, I dissent from the denial of certiorari.

       The second prayer of the respondents’ complaint asked:
      “2. That, this Court exercise its pendent jurisdiction and Chief of Police, B. F. McGuffey be preliminarily and permanently enjoined from discharging plaintiffs ... on the grounds that he lacks the power or authority under City of Columbus Ordinance 71-7 to discharge police officers summarily as he did on May 31, 1971, and enjoin the Chief of Police, the Police Department and all other defendants from refraining to reinstate said plaintiffs and from withholding back pay from May 31, 1971.”
      Petitioners also claimed that their dismissals violated their First Amendment rights of speech, association, and petition.

       As noted in Huffman v. Pursue, Ltd., 420 U. S. 592, 600-601 (1975), in Younger we recognized that the doctrine of equitable restraint “is based in part on the traditional doctrine that a court of equity should stay its hand when a movant has an adequate remedy at law, and that it 'particularly should not act to restrain a criminal prosecution.’ [401 U. S.,] at 43. But we went on to explain that this doctrine 'is reinforced by an even more vital consideration,’ an. aspect of federalism which we described as
      “ ‘the notion of “comity,” that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.’ Id., at 44.”


text:
    No. 77-1481.
    Weeks et al. v. Simpson.
   C. A. 8th Cir. Certiorari denied.

The Chief Justice, Mr. Justice Black-mun, and Mr. Justice Rehnquist would grant certiorari.


text:
    No. 78-971.
    United States v. Stevie et al.
   C. A. 8th Cir. Motion of respondent Robert C. Stevie for leave to proceed in forma pauperis granted. Certiorari denied.

Mr. Justice Stewart would grant certiorari.


text:
    No. 78-699.
    Califano, Secretary of Health, Education, and Welfare v. Mattern.
   C. A. 3d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 78-5504.
    Tamilio v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant certiorari.


text:
    No. 78-6058.
    No. 78-6088.
    Sink v. United States; and Grim v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Stewart and Mr. Justice Marshall would grant certiorari.

Reported below: 586 F. 2d 1041.


text:
    No. 78-6076.
    DeSantis v. New York.
   Ct. App. N. Y. Certiorari denied.

Mr. Justice Stewart would grant cer-tiorari.


text:
    No. 78-6150.
    Miner v. New York.
   Ct. App. N. Y. Cer-tiorari denied.

Mr. Justice Brennan and Mr. Justice Blackmun would grant certiorari.


text:
    No. 78-6319.
    Guzman v. Louisiana.
   Sup. Ct. La. Certiorari denied.

Mr. Justice Marshall would grant certiorari.


text:
    No. 78-6518.
    McKenzie v. Montana.
   Sup. Ct. Mont. 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 grant certiorari and vacate the death sentence in this case.


text:
    June 26, 1979
    No. 78-1436.
    Union Light, Heat & Power Co. et al. v. Rubin, U. S. District Judge.
   C. A. 6th Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    June 27, 1979
    No. A-1084.
    Golden et al. v. Barr et al.
   Application for stay of proceedings in the California state courts as to the United Methodist Church, addressed to Mr. Justice Brennan and referred to the Court, denied.

Mr. Justice White and Mr. Justice Blackmun took no part in the consideration or decision of this application.


text:
    No. A-1089.
    Woe et al. v. Nebraska State Department of Public Welfare et al.
   Application to vacate stay entered May 25, 1979, by the United States Court of Appeals for the Eighth Circuit, addressed to Mr. Justice Marshall and referred to the Court, denied.

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


text:
    June 28, 1979
    No. 78-1646.
    Standard Brands, Inc. v. General Warehousemen & Helpers Local 767, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    July 2, 1979
    No. 78-155.
    Philadelphia Newspapers, Inc., et al. v. Jerome, Judge; Society of Professional Journalists et al.
      v. Brown, Judge; Montgomery Publishing Co. v. Brown, Judge; Society of Professional Journalists et al. v. Honeyman, Judge; and Montgomery Publishing Co. v. Honeyman, Judge.
   Appeal from Sup. Ct. Pa. dismissed for want of substantial federal question. Reported below: 478 Pa. 484, 387 A. 2d 425.


text:
    No. 78-973.
    No. 78-987.
    No. 78-1212.
    Harrington et al. v. United States; Dolman et al. v. United States; and Minnich et al. v. United States.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and cases remanded for further consideration in light of Washington v. Washington State Commercial Passenger Fishing Vessel Assn., ante, p. 658. Reported below: 584 F. 2d 876.


text:
    No. 78-1015.
    Baldwin et al. v. Mills et al.
   Sup. Ct. Fla. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Jones v. Wolf, ante, p. 595.


text:
    No. 78-1144.
    Leonard M. v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Jackson v. Virginia, ante, p. 307.

Mr. Justice Stevens dissents.


text:
    No. 78-1840.
    City of Rome et al. v. United States et al.
   Appeal from D. C. D. C. Probable jurisdiction noted.


text:
    No. 78-781.
    Special School District No. 1, Minneapolis, Minnesota, et al. v. Booker et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-795.
    Empresa Lineas Maritimas Argentinas v. Samuels.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-897.
    Austin Independent School District v. United States et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6127.
    Eleuterio v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1041.
    Hopkins, Corrections Director v. Fabritz.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 78-1131.
    Board of Education of Jefferson County, Kentucky, et al. v. Haycraft et al.
   C. A. 6th Cir. Cer-tiorari denied.

Mr. Justice Blackmun, Mr. Justice Powell, and Mr. Justice Rehnquist would grant certiorari.


text:
    No. 78-1922.
    American Federation of Labor & Congress of Industrial Organizations et al. v. Kahn, Chairman, Council on Wage and Price Stability, et al.
   C. A. D. C. Cir. Motion to dispense with printing petition and to expedite consideration granted. Certiorari denied.

Mr. Justice Brennan, Mr. Justice White, and Mr. Justice Marshall would grant certiorari.


text:
    July 28, 1979
    No. A-89 (78-610).
    Columbus Board of Education et al. v. Penick et al.,
   ante, p. 449. Motion to issue judgment, or in the alternative to vacate stay, presented to Mr. Justice White, and by him referred to the Court. It is ordered that the stay entered by Mr. Justice Rehnquist on August 11, 1978 [439 U. S. 1348], be vacated. It is further ordered that the judgment of this Court shall issue forthwith.

Mr. Justice Rehnquist took no part in the consideration or decision of these orders.


text:
    August 8, 1979
    No. 79-14.
    Pacific Far East Line, Inc. v. Zirpoli, U. S. District Judge (R. J. Reynolds Tobacco Co. et al., Real Parties in Interest).
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    August 22, 1979
    No. A-2 (79-145).
    California v. Minjares.
   Application for recall and stay of mandate of the Supreme Court of California, addressed to Mr. Justice Blackmun and referred to the Court, denied.

Mr. Justice Blackmun would grant the application.

Mr. Justice Rehnquist,

with whom The Chief Justice joins, dissenting from denial of stay.

In the ordinary case, anything more than the most summary statement of the reasons of an individual Justice for dissenting from the disposition of an application for a stay by the full Court would be both a useless and wasteful consumption of the dissenter’s time. I believe, though, that this is not the ordinary case, but the culmination of a sport of fox and hound which was begun by this Court’s decision in Weeks v. United States, 232 U. S. 383 (1914), 65 years ago. So many factors material to that decision, and to Mapp v. Ohio, 367 U. S. 643 (1961), which applied it to the States, have occurred after the rendition of these decisions that I think a re-evaluation of the so-called “exclusionary rule” enunciated by Weeks is overdue. Because of double jeopardy considerations, I am not prepared to state flatly that this case would not be moot as a result of a verdict of acquittal by the time this Court comes to pass on the State’s petition for certiorari, and I am therefore filing this opinion as a dissent from the denial of a stay of the judgment of the Supreme Court of California suppressing evidence, the granting of which could prevent any possibility of mootness. See Fare v. Michael C., 439 U. S. 1310 (1978) (Rehnquist, J., in chambers).

The anomalous consequences of the exclusionary rule are readily apparent from an examination of the police conduct in this case. The officers who conducted the search were responding to a report of a robbery that had recently been committed. The robbery took place around 8:30 p. m. on December 19, 1975, at a Safeway Store in Fremont, Cal. It was committed in the presence of several witnesses by two individuals armed with handguns. One of the witnesses followed the two men, observed them get into a car, and trailed the car for several miles until he was able to identify it as a 1968 or 1969 Ford Fairlane and to write down the license number. The witness then went directly to the police station and reported what he had seen. At approximately 9 p. m., the police department broadcast a description of the getaway vehicle and its license number. Shortly thereafter, a Fremont police officer spotted a vehicle matching the description, called for backup units, and stopped the vehicle. The driver, respondent, was ordered out of the car, searched, and advised he was under arrest for robbery. He was the only person in the vehicle and fit the description of one of the suspects. The officers also searched the passenger compartment of the car, but neither that search nor the search of respondent revealed any evidence of the crime or the whereabouts of the second robber. After an unavailing attempt to locate the key to the car's trunk, the officers had the car towed to the city corporation yard. Upon its arrival, the officers picked the lock to the trunk and discovered it contained a red tote bag. They opened the tote bag, which contained clothing similar to that described by witnesses to the robbery, three guns, and a roll of pennies in a wrapper from the bank used by Safeway.

When the officer who initially stopped the vehicle was asked why he did not obtain a warrant while “making the decision to search the car and the trunk,” he stated: “Basically, I think, time. In other words, by searching without the search warrant, we would save a matter of hours.” He was then asked why time was a factor at this stage, and responded: “Well, we were still looking for a second suspect.” The trial court denied respondent's motion to suppress the evidence discovered in the tote bag. Respondent was convicted of two counts of first-degree robbery and was found to have been armed at the time of his arrest. The Supreme Court of California, however, reversed the conviction. It concluded that although a warrant-less search of an automobile, if based on probable cause to believe that the auto contains contraband or evidence of a crime, is permissible when it takes place after the auto has been towed to a police station, Chambers v. Maroney, 399 U. S. 42, 52 (1970), a search of a container in the automobile is invalid unless the officers first obtain a warrant.

The foregoing discussion reveals that respondent was apprehended as a result of conscientious police work, and that the subsequent search of the trunk of his auto occurred in the course of an ongoing investigation, while the second suspect was still on the loose. The case is thus not one in which the officers lacked probable cause to arrest respondent and to search the trunk of his auto and the tote bag; it appears rather that “the criminal is to go free” solely because of a good-faith error in judgment on the part of the arresting officers, who were not sufficiently prescient to realize that while it was constitutionally permissible for them to search the trunk of an automobile at the city corporation yard under the exigency exception to the warrant requirement, courts would later draw a distinction between searching the trunk and searching a tote bag in the trunk. This distinction would obtain even though it was equally likely that the tote bag contained the evidence they were looking for, and they had no reason, prior to opening the trunk, to anticipate that such evidence might be hidden from their view because it was in the tote bag.

I do not claim to be an expert in comparative law, but I feel morally certain that the United States is the only nation in the world in which the most relevant, most competent evidence as to the guilt or innocence of the accused is mechanically excluded because of the manner in which it may have been obtained. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 415 (1971) (Burger, C. J., dissenting); see also Stone v. Powell, 428 U. S. 465, 499 (1976) (Burger, C. J., concurring). This unique jurisprudential rule, as discussed in Stone v. Powell, imposes tremendous costs on the judicial process at criminal trials and on direct review:

“The costs of applying the exclusionary rule even at trial and on direct review are well known: the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding. Moreover, the physical evidence sought to be excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant. As Mr. Justice Black emphasized in his dissent in Kaufman:
‘A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty.’ 394 U. S., at 237.
“Application of the rule thus deflects the truthfinding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice. Thus, although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice.” Id., at 489-491 (footnotes omitted).

If I am correct in this belief, the Court has made a wrong turn at some point between its decision in Weeks, 65 years ago, and the present case. See Burger, Who Will Watch the Watchman?, 14 Am. Univ. L. Rev. 1 (1964).

In Weeks, the Court held, almost casually, that evidence seized in violation of the Fourth Amendment was inadmissible against the accused at a federal criminal trial. Weeks was decided in 1914 when the federal Criminal Code was still a rather slim volume. The villains of the 1914 federal Code, and thus the beneficiaries of the Weeks rule, were smugglers, federal income tax evaders, counterfeiters, and the like. The defendant in Weeks itself was charged with the unlawful use of the mails to transport lottery tickets. It is quite conceivable that society can tolerate an occasional counterfeiter or smuggler going unwhipped of justice because of what seems to the great majority of the citizens of the country to be a technical violation of the rights secured to him by the Fourth Amendment to the United States Constitution. The societal reaction could be expected to be quite different today, when Weeks serves to free the perpetrators of crimes affecting life and property, crimes which have traditionally been the principal responsibility of the States to enforce and administer.

In Byars v. United States, 273 U. S. 28 (1927), the Court held that “probable cause” could only be measured by objective facts known to the police officer prior to the search. The search in Byars was conducted pursuant to a warrant supported by the affiant’s statement that he had “good reason” to believe that the defendant had intoxicating liquors and related articles in his possession. The search proved the affiant correct, producing whiskey-bottle stamps. The Court held that the search was conducted in violation of the Fourth Amendment, because under Fourth Amendment standards, it was not “material that the search was successful in revealing evidence of a violation of a federal statute.” Id., at 29. This result, while taken for granted today, was not inevitable. The Court certainly could have held that discovery of the articles sought is compelling evidence that the search was justified, or that any violation of the Fourth Amendment in such a case was harmless error.

In Wolf v. Colorado, 338 U. S. 25 (1949), the Court held that the Fourth Amendment was applicable to the States by incorporation through the Fourteenth Amendment. This was, and remains, a thoroughly defensible proposition. Equally defensible, was the proposition established by Mr. Justice Frankfurter’s majority opinion that the exclusionary rule of Weeks was not a necessary concomitant of the Fourth Amendment. In a 6-3 decision, the Court held that although the Fourth Amendment applied against the States, the States were free to choose any number of means of enforcing the Fourth Amendment and were not required to adopt the exclusionary rule. Mr. Justice Frankfurter relied on Judge Cardozo’s opinion in People v. DeFore, 242 N. Y. 13, 150 N. E. 585 (1926), concluding that the exclusionary rule would not be applied in New York. Cardozo’s reasoning was cogently summarized in his conclusion that there was no reason why “[t]he criminal is to go free because the constable has blundered.” Id., at 21, 150 N. E., at 587.

Mr. Justice Murphy wrote a dissenting opinion in which Mr. Justice Rutledge joined. (Mr. Justice Douglas dissented separately.) Mr. Justice Murphy’s dissent was premised on the belief that the exclusionary rule was the only effective sanction for violations of the Fourth Amendment. He therefore concluded that application of the Fourth Amendment to the States without application of the exclusionary rule was a nullity.

Twelve years later, by a vote of 6-3 in the case of Mapp v. Ohio, 367 U. S. 643 (1961), this Court overruled Wolf v. Colorado (Mr. Justice Stewart concurred in the judgment on independent grounds without reaching the Fourth Amendment issues). The Court held that the Fourteenth Amendment did incorporate the exclusionary rule and therefore adherence to that rule by the States was mandatory. The Court essentially adopted the reasoning of Mr. Justice Murphy’s Wolf dissent, concluding that the exclusionary rule represented the only feasible means of enforcing the Fourth Amendment. The Mapp majority opinion, written by Mr. Justice Clark, adopted the view, espoused by Mr. Justice Murphy, that a person injured by a Fourth Amendment infraction had no effective redress available. Police officers were generally impecunious, preventing the recovery of money damages, and county prosecutors who secured the conviction through use of the illegally seized evidence would be unlikely to prosecute the police officers responsible for producing the evidence.

Mapp was decided only 18 years ago. Application of the exclusionary rule to the States is not supported by a long tradition of history in its favor. It should therefore be judged freely by its reason. Moreover, one of the central themes in the procession of cases from Weeks to the present day has been a continuing re-evaluation of past assumptions. Thus, Mapp reassessed the factual and conceptual underpinnings of Wolf in light of intervening cases and empirical data. See 367 U. S., at 651-653. Events that have intervened in the 18 years since Mapp and the 65 years since Weeks lead me to believe that another such reassessment is in order. The justifications for a rule once found compelling may no longer withstand scrutiny.

Weeks, the seminal case on the necessity for the exclusionary rule, seemed grounded upon an interpretation of the Fourth Amendment itself. In holding' that illegally seized evidence must be excluded in federal prosecutions, this Court reasoned that if illegally seized evidence were admissible, “the protection of the Fourth Amendment declaring [a] right to be secure against such searches and seizures is of (no value, and .. . might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. ... To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.” 232 U. S., at 393-394. Despite Weeks’ linkage of the exclusionary rule with the fundamental guarantees of the Fourth Amendment, this Court held in Wolf that the protections of the rule were not fundamental enough to merit incorporation through the Fourteenth Amendment. In Mapp, which overruled that portion of Wolf, a plurality of this Court implied that the exclusionary rule was a necessary corollary of the Fourth Amendment. See 367 U. S., at 655-657. Mr. Justice Black, in a concurrence, indicated that the Fourth Amendment had to be read in conjunction with the Fifth in order to justify the exclusionary rule. See id., at 661; see also Stone v. Powell, 428 U. S., at 484 n. 21.

More recently, however, we have rejected the argument that the Fourth Amendment mandates exclusion of evidence as a necessary corollary to its guarantees against unreasonable searches. In Stone v. Powell, for example, we “reaffirm[ed] that the exclusionary rule is a judicially created remedy rather than a personal constitutional right . . . Id., át 495 n. 37. This distinction manifests itself in those cases where we have permitted admission of illegally seized evidence because its exclusion would serve no deterrent purpose. See, e. g., United States v. Calandra, 414 U. S. 338 (1974) (exclusionary rule not applicable to grand jury proceedings). Clearly, proponents of the exclusionary rule must look beyond the corners of the Fourth Amendment for support.

A direct descendant of the constitutional rationale for the exclusionary rule is the argument that the rule somehow maintains the integrity of the judiciary. This argument received a full exposition in Elkins v. United States, 364 U. S. 206 (1960). There, this Court relied upon its “supervisory power over the administration of criminal justice in the federal courts,” and rejected the “silver platter” doctrine under which federal authorities prosecuted defendants with evidence seized illegally by state authorities. This practice, according to Elkins, made federal courts “accomplices in the willful disobedience of a Constitution they are sworn to uphold.” Id., at 223. In Mapp, this Court also relied upon the “judicial integrity” argument, even though we have no supervisory powers over the conduct of state courts.

There are several answers to the assertion that courts should exclude illegally seized evidence in order to preserve their integrity. First, while it is quite true that courts are not to be participants in “dirty business,” neither are they to be ethereal vestal virgins of another world, so determined to be like Caesar’s wife, Calpurnia, that they cease to be effective forums in which both those charged with committing criminal acts and the society which makes the charge may have a fair trial in which relevant competent evidence is received in order to determine whether or not the charge is true. As Mr. Justice Stone noted in McGuire v. United States, 273 U. S. 95, 99 (1927), “[a] criminal prosecution is more than a game in which the Government may be checkmated and the game lost merely because its officers have not played according to rule.”

Moreover, the judicial-integrity justification has on more than one occasion failed to persuade this Court. In United States v. Peltier, 422 U. S. 531 (1975), the Court observed that it had consistently refused to apply newly announced doctrines of search-and-seizure law retroactively. In such cases, the Court has recognized that the introduction of evidence which had been seized by law enforcement officials in good-faith compliance with then-prevailing constitutional norms did not make the courts “accomplices in the willful disobedience of a Constitution they are sworn to uphold.” Similarly, in Stone v. Powell, we asserted that “[w]hile courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence.” 428 U. S., at 485. Although someone- undoubtedly should be disciplined when a deliberate violation of the Fourth Amendment occurs, that proposition does not require the conclusion that the whole criminal prosecution must be aborted to preserve judicial integrity.

Of course, the “primary” justification for the exclusionary rule is the need for deterrence of illegal police conduct. See Stone v. Powell, 428 U. S., at 486. But since Mapp, various changes in circumstances make redress more easily obtainable by a defendant whose constitutional rights have been violated.

Four months prior to the decision in Mapp, this Court resurrected a long-dormant statute, § 1 of the Ku Klux Act, 42 U. S. C. § 1983, which gave a private cause of action for redress of constitutional violations by state officials. Monroe v. Pape, 365 U. S. 167 (1961). The subsequent developments in this area have, to say the least, expanded the reach of that statute. Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), made not only the individual police officer who may have committed the wrong, and who may have been impecunious, but also the municipal corporation which employed him, equally liable under many circumstances. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), made individual agents of the Federal Bureau of Narcotics suable for damages resulting from violations of Fourth Amendment guarantees. In addition, many States have set up courts of claims or other procedures so that an individual can as a matter of state law obtain redress for a wrongful violation of a constitutional right through the state mechanism.

In his dissent in Wolf v. Colorado, Mr. Justice Murphy disparaged civil actions as a remedy for illegal searches and seizures. Some of his objections have been vitiated by Monroe’ s provision of a federal forum for the dispute or by MonelVs provision of a deep state pocket. As for other concerns voiced by Mr. Justice Murphy, I believe that modern juries can be trusted to return fair awards in favor of injured plaintiffs who allege constitutional deprivations. If, as this Court announced in Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957), juries are capable of awarding damages as between injured railroad employees and railroads, they surely are capable of awarding damages as between one whose constitutional rights have been violated and either the agent who or the government agency that violated those rights. Thus, most of the arguments advanced as to why the exclusionary rule was the only practicable means for enforcing the Fourth Amendment, whether or not they were true in 1949 or 1961, are no longer correct.

The most comprehensive study on the exclusionary rule is probably that done by Dallin Oaks for the American Bar Foundation in 1970. See Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970). According to this article, it is an open question whether the exclusionary rule deters the police from violating Fourth Amendment protections of individuals. Whether or not this be the case, the exclusionary rule certainly deters the police and prosecuting authorities from convicting many guilty defendants.

There is no question that the police are badly in need of rules that may be relatively easily understood in carrying out their work of apprehending and assisting in convicting those guilty of conduct made criminal by the legislature. There is equally no doubt that those who have been damaged by official action infringing on rights guaranteed them by the Constitution should have an avenue for redress of that damage. But it does not at all follow from either of these statements that the forum for redress of the individual’s rights and the forum in which the police officer learns of the limitations on his authority should be one and the same. It would be quite rational, I think, for the criminal trial to take place either without any application of the exclusionary rule in either federal or state cases, or at least without any application in state cases. A difference in approach between state and federal prosecutions could be justified on the basis of the different roles that state and federal law enforcement officials play in our society, even today. See, e. g., Cady v. Dombrowski, 413 U. S. 433, 440-441 (1973). Not only has the list of federal criminal statutes greatly expanded since 1914, but also crimes against person and property — the traditional common-law crimes — have largely remained the preserve of the State. Thus, Mapp v. Ohio brought to bear in favor of accused murderers and armed robbers a rule which had previously largely had an application to bootleggers and purveyors of stolen lottery tickets through the mail. This difference is not without force in any reasoned perception by the members of the society of how well the system of administration of criminal justice as a whole is working.

The reasons for applying the exclusionary rule in the criminal trial, as opposed to giving the individual criminal defendant redress in some other forum quite apart from the question whether he is guilty or not of the criminal charges, are substantially weaker today than they were either in 1949, when Wolf v. Colorado was decided, or in 1961, when Mapp v. Ohio was decided. Given these changes, I would grant the stay and request the parties and the Solicitor General to brief the question of whether, and to what extent, the so-called “exclusionary rule” of Weeks v. United States should be retained.


text:
    August 30, 1979
    No. 78-1695.
    Angela Compania Naviera, S. A. v. Public Administrator of the County of New York.
   C. A. 2d Cir. Certiorari dismissed under this Court’s Rule 60.


author: Mr. Justice Rehnquist, Circuit Justice.

text:
    PACIFIC TELEPHONE & TELEGRAPH CO. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA et al.
    No. A-101.
    Decided August 13, 1979

      Together with No. A-102, General Telephone Co. v. Public Utilities Commission of California et al., also on application for stay of the same mandate.

   Mr. Justice Rehnquist, Circuit Justice.

Applicants request that I continue in effect a temporary injunction issued by the Court of Appeals for the Ninth Circuit on April 2, 1979, pending disposition by the full Court of their petitions for certiorari to review the judgment of the Court of Appeals. On July 18, that court, in a consolidated case in which both applicants were appellants, affirmed the judgment of the United States District Court for the Northern District of California denying applicants injunctive relief against the enforcement of a rate order earlier promulgated by respondent California Public Utility Commission (PUC). The PUC in September 1977 (Decision No. 87838), had ordered applicants to refund charges paid by subscribers before 1978 and to reduce certain of their rates for that and future years. The PUC, however, stayed implementation of its order pending judicial review. 600 F. 2d 1309, 1310 (CA9 1979).

After the Supreme Court of California denied applicants’ request for review, applicants petitioned this Court for cer-tiorari. Applicants argued that this Court should review the PUC rate order because it was premised on the PUC’s interpretation of an unsettled question of federal tax law. They claimed that if this interpretation subsequently proved incorrect, they would be subject to substantial liability in back taxes. Applicant Pacific Telephone also challenged the PUC’s decision on the ground that it violated the Due Process Clause of the Fourteenth Amendment. The petitions were denied on December 11, 1978, 439 U. S. 1052, with Mr. Justice Marshall and Mr. Justice Blackmun dissenting from the order of denial. Petitions for rehearing were thereafter denied on February 21, 1979, 440 U. S. 931. On March 14, 1979, the PUC terminated the stay of its own order of September 13, 1977, stating in its order so doing that “the avenues of judicial review have been exhausted.” 600 F. 2d, at 1311. The following day, applicants filed a complaint for declaratory and injunctive relief in the United States District Court for the Northern District of California. That court denied relief, but the Court of Appeals granted its own temporary injunction on April 2, 1979, pending consideration of applicants’ appeal from the order of the District Court. Last month, as previously noted in this opinion, the Court of Appeals affirmed the judgment of the District Court, dissolved its own injunction, and denied applicants’ request for a stay of mandate in order that they might petition this Court for certiorari.

With this sort of procedural history, one would expect applicants’ petitions for certiorari to deal principally with questions arising under the United States Constitution or laws governing the setting of rates by state utility commissions for public utilities. But the questions which applicants seek to have reviewed on certiorari pertain to the application of federal tax statutes as they relate to depreciation which may be claimed by public utilities. Since it is this type of question which applicants seek to litigate if certiorari is granted, one would likewise expect either an agency'or officer of the United States having some responsibility for administering these tax statutes to be named as respondents, instead of the California PUC or intervening California municipal corporations. Without dwelling further on the anomalous nature of applicants’ petitions for certiorari, I have concluded that their actions in the United States District Court for the Northern District of California begun in March 1979, were simply an effort to relitigate issues which had been determined adversely to them by the administrative and judicial processes of the State of California, and with regard to which this Court denied certio-rari and denied rehearing earlier this Term. These denials took place notwithstanding the fact that the Solicitor General urged the Court to grant certiorari and decide the issues presented by the petitions.

The PUC in its Decision No. 90094, rendered on March 14, 1979, after the proceedings in this Court, was doing no more than formally stating that the conditions on which its stay had been granted — exhaustion of judicial review — had occurred, and therefore the stay expired by its own terms. The PUC dissolved this stay despite applicants’ contention that the PUC’s interpretation of federal tax law in Decision No. 87838 was incorrect and that the rate order would consequently result in the Internal Revenue Service’s assessment of substantial tax deficiencies against applicants. In my opinion, the determination of whether or not the PUC’s rate order should have been stayed pending resolution of the federal tax issues was, at this late stage in the proceedings, entirely a matter for the State to decide.

One need not question the assertion of applicants that very large financial stakes hinge on the manner in which the IRS, subject to whatever review of its action is provided by law, treats the refund and rate reduction orders imposed by the PUC’s order of September 13, 1977. Nor need one doubt that this Court had jurisdiction, under cases such as Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977), to review applicants' earlier petitions for certiorari in Nos. 78-606 and 78-607, O. T. 1978, on the ground that the PUC had reached a decision based on a misapprehension of federal law which it might not have reached had it correctly understood federal law. But that is now water over the dam. This Court denied those petitions earlier this Term, and denied petitions for rehearing.

If I thought it necessary in passing upon this stay application to determine the present-day correctness of this Court’s reading of California law in Napa Valley Co. v. Railroad Comm’n, 251 U. S. 366 (1920), I would naturally defer to the opinion of the Court of Appeals, which must deal with California law more frequently than does this Court. But I do not actually think it is necessary to make this determination; a State may enunicate policy through an administrative agency, as well as through its courts, and so long as there is an opportunity for judicial review the fact that such review may be denied on a discretionary basis does not make the agency’s action any less the voice of the State for purposes of this Court’s jurisdiction or for purposes of federal-state comity. See United States v. Utah Construction Co., 384 U. S. 394, 419-423 (1966). Nor is this a case where any claim of bias is made against the agency, see Gibson v. Berryhill, 411 U. S. 564 (1973), or where an action of the federal courts in refusing to allow applicants to relitigate the merits of their claim on which this Court has previously denied certiorari amounted to the imposition of a requirement of “exhaustion of administrative remedies.” Here, the administrative action was the source of the claimed wrong, not a possible avenue for its redress.

The net of it is that I believe applicants’ federal-court litigation is new wine in old bottles. When it was new wine in new bottles, last Term, this Court denied certiorari, and I have no reason to believe that any intervening events would change that outcome. Accordingly, without considering the second part of the requirement which applicants must meet in order to obtain a stay — the so-called “stay equities” — the temporary stay which I previously issued is dissolved forthwith, and applicants’ request for a stay of the mandate of the Court of Appeals for the Ninth Circuit is hereby

Denied.


text:
    LENHARD et al., CLARK COUNTY DEPUTY PUBLIC DEFENDERS, individually and as next friends of bishop v. WOLFF, WARDEN, NEVADA STATE PRISON SYSTEM, et al.
    No. A-172.
    Decided September 7, 1979
   Mr. Justice Rehnquist, Circuit Justice.

On August 25, 1979, I temporarily enjoined respondents from executing Jesse Bishop, upon whom a death sentence was imposed by the State District Court for Clark County, Nev., and affirmed by the Supreme Court of Nevada in July 1979. I issued the injunction so that I would be able to consider the response of Nevada officials and additional information of record which I requested from each of the parties. In the exercise of what I find to be as difficult a task as must be performed by any Member of this Court — the obligation to act as surrogate for the entire Court in deciding whether to grant or deny extraordinary relief pursuant to 28 U. S. C. §1651 pending disposition of a petition for certiorari by the full Court — I have determined that it is appropriate to continue the stay of execution pending consideration by the full Court. Since the State of Nevada is entitled to have the mandates of its courts enforced unless they offend the laws or Constitution of the United States, and since Jesse Bishop has concededly disclaimed any effort either by himself or by others on his behalf to prevent his execution, I feel obliged to summarize briefly the reasons which lead me to refer the application to the full Court.

The defendant under sentence of death has wholly disclaimed any effort to seek a stay from this Court or to seek review of the decision of the Supreme Court of Nevada by means of certiorari in this Court. The only two comparable cases which have come before this Court are Gilmore v. Utah, 429 U. S. 1012 (1976), and Evans v. Bennett, 440 U. S. 1301, in which I granted a stay of execution on April 5, 1979, in order that the case might be considered by the full Court. The full Court thereafter vacated the stay. Evans v. Bennett, 440 U. S. 987 (1979). In each of these cases, the defendant under sentence of death had disassociated himself from efforts to secure review of that sentence. In Evans, I entered the stay of execution in recognition of the fact that four Members of the Court had dissented from the ultimate denial of the stay in Gilmore, supra. While my Brothers Brennan and Marshall’s view of the death sentence as “cruel and unusual punishment” within the prohibition of the Eighth Amendment under all circumstances might permit review of any capital case by this Court, the dissenting opinions of my Brothers White and Blackmun seem more limited in scope. Those opinions urged plenary consideration of the application to resolve doubts about the standing of Gilmore’s mother to prosecute the action without her son’s consent when substantial questions regarding the constitutionality of the state statute remained unresolved. I therefore concluded in Evans that a stay until the regularly scheduled Conference of the Court the following week would be most consonant with my obligations as Circuit Justice.

In my view, the initial barrier to be overcome in the present case by applicants Lenhard and Franzen, who with commendable fidelity to their assignment by the trial court have sought this stay and petitioned for habeas relief in the federal courts, is the finding of the courts which have passed on the question that defendant Jesse Bishop is competent to waive the assertion of any constitutional infirmities in the sentence imposed upon him by the Nevada courts. A successful attack on Bishop’s competency is the requisite threshold for applicants’ standing. Even if standing were not a barrier, a view some Members of the Court may well subscribe to, applicants still would have the burden of demonstrating some constitutional deficiency in the proceedings, as I read the views of my Brother White. For this reason, I have considered the nature of the judicial review afforded on the merits thus far, as well as the review afforded the determination of Bishop’s competency.

At the trial court level, both Evans and Bishop pleaded guilty, whereas Gilmore was tried and sentenced by a jury. Gilmore declined to seek any appellate review in the Supreme Court of Utah, and was granted none. Evans’ conviction and sentence were reviewed pursuant to a requirement for mandatory appeal in both the Alabama Court of Appeals and in the Supreme Court of Alabama. Bishop’s case was comprehensively reviewed by the Supreme Court of Nevada. Evans additionally unsuccessfully sought a writ of certiorari from this Court to review the judgment of the Supreme Court of Alabama, which writ was denied on February 20, 1979. 440 U. S. 930. Thus, each of the three cases had progressed to different levels of review within the judicial system: Gilmore had neither sought nor obtained any appellate review of the death sentence imposed upon him by the trial court; Bishop has obtained full review by the Supreme Court of Nevada of the death sentence and proceedings which led up to it in the trial court; Evans not only obtained state appellate review, but also petitioned this Court unsuccessfully for a writ of certiorari challenging the affirmance of his death sentence by the Alabama courts.

In Gilmore, no state or federal court had reviewed the constitutionality of the Utah statute. The Supreme Court of Nevada in reviewing Bishop’s case, however, expressly upheld the constitutionality of the Nevada capital punishment statute. The court reasoned:

“The Nevada statutes authorizing the imposition of the death penalty are similar to the Florida statutes which were found to be constitutional in Proffitt v. Florida, 428 U. S. 242 (1976). The Nevada statutes provide for a consideration of any mitigating factor the defendant may want to present. NRS 200.035 (7). Cf. Lockett v. Ohio, [438 U. S. 586 (1978)]. The imposition of the death penalty in this case offends neither the United States Constitution nor the Nevada Constitution.” Bishop v. Nevada, 95 Nev. 511, 517-518, 597 P. 2d 273, 276-277 (1979).

Again, in my view, the substantive constitutional arguments which might be made by defendant Bishop in this Court in support of review of the judgment of the Supreme Court of Nevada bear only tangentially on the merits of the application for stay, since the contentions are not being made by Bishop, but rather by the public defenders asserting that they act as “next friends.” But since Mr. Justice White, joined by Mr. Justice Brennan and Mr. Justice Marshall in Gilmore, stated that “[ujntil the state courts have resolved the obvious, serious doubts about the validity of the state statute, the imposition of the death penalty in this case should be stayed,” 429 U. S., at 1018, and Mr. Justice Blackmun stated that “the question of Bessie Gilmore’s standing and the constitutional issue are not insubstantial,” id., at 1020, it is apparent that four Members of this Court do not consider the issue of the “standing” of a relative to assert claims which the convicted defendant refuses to assert and the merits of those claims to be wholly disassociated from one another. The constitutionality of Bishop’s sentence has, in any event, been subjected to substantially greater scrutiny than the sentence imposed in Gilmore.

From my view of the controlling legal precepts, the record evidence of competency is more important to the determination of whether a stay is appropriate than is the merit of the underlying application. While I do not purport to have extensive knowledge of the concept of “next friend” in a legal proceeding such as this, it strikes me that from a purely technical standpoint a public defender may appear as “next friend” with as much justification as the mother of John L. Evans or of Gary Gilmore. But I do think the contrast between the position of Bishop’s family in this case and that of Gilmore’s mother and Evans’ mother in those cases is worth noting. Here Bishop’s family has by no means repudiated him, but they have at the same time declined to pursue or join in the pursuit of any further judicial review of the death sentence. While the familial relationship of the “next friend” to the defendant may not be relevant to the technical question of standing, it may provide some inferences as to the issue of competence. The refusal of the family to seek relief may well support the finding of the courts which have considered the question that the defendant is competent to waive additional proceedings.

Gilmore underwent competency proceedings both prior to trial and after he announced his intention to waive appellate review. With respect to the waiver of the latter right, the trial judge appointed a prison psychiatrist to examine Gilmore. On the basis of a 1-hour interview the psychiatrist submitted a report to the court finding Gilmore competent to waive appeals. Reports of two prison psychologists were submitted as corroboration, and the trial judge entered a finding of competency.

Bishop was found competent to plead guilty and represent himself after an evidentiary hearing at which three examining psychiatrists reported that Bishop was competent. There has been no subsequent judicial determination of his competency to waive further litigation. A state-appointed psychiatrist, however — the only psychiatrist that Bishop would consent to see- — submitted a report based on a 4-hour interview, concluding that Bishop is competent to waive further review. The United States District Court for the District of Nevada, in its opinion in the habeas proceeding dated August 23, 1979, stated:

“The Court has reviewed the record of the proceedings before the Nevada Supreme Court and the Eighth Judicial District of the State of Nevada and, based thereon, finds that Jesse Walter Bishop made a knowing and intelligent waiver of any and all federal rights he might have asserted both before and after the Eighth Judicial District imposed sentence, and, specifically, that the State of Nevada’s determinations of his competence knowingly and intelligently to waive any and all such rights were firmly grounded.” Application, App. B, p. 5.

On appeal to the Court of Appeals for the Ninth Circuit, a panel of that court stated in its opinion:

“Bishop himself has steadfastly maintained that he does not wish to seek relief in the federal courts and refuses to authorize any petition for habeas corpus or stay of execution to be filed on his behalf. Most recently he appeared in open court at the hearing before the district court on August 23, 1979 and declared that he believes he has a constitutional right to waive any rights to a federal appeal and desires to do so. He maintained he was intelligently and competently exercising his right to refrain from seeking relief from the federal courts.” 603 F. 2d 91, 93 (1979).

The Court of Appeals went on to observe that following the initial determination of competence to stand trial and plead guilty:

“[TJhere has been no showing of Bishop's incompetence. . . .
“Bishop was found to be competent at the time of trial by three psychiatrists; he was observed by the panel of three judges during the penalty hearing; he was observed in a subsequent proceeding before the trial court on July 25, 1979; he appeared personally before the United States District Court on August 23, 1979; and he' was examined by a licensed psychiatrist on August 21, 1979. On none of these occasions was there an indication to those responsible persons that he was incompetent. We find that there has been no evidence of incompetence sufficient to warrant a hearing on the issue.” Ibid.

I thus find myself in much the same position in which I found myself in Evans v. Bennett. If I were casting my vote on the application for a stay as a Member of the full Court, I would vote to deny the stay. I am in full agreement with the per curiam opinion of Judges Wright, Sneed, and Hug of the United States Court of Appeals for the Ninth Circuit. I am likewise in full agreement with the observations of Judge Sneed in his concurring opinion suggesting that however worthy and high minded the motives of “next friends” may be, they inevitably run the risk of making the actual defendant a pawn to be manipulated on a chessboard larger than his own case. The idea that the deliberate decision of one under sentence of death to abandon possible additional legal avenues of attack on that sentence cannot be a rational decision, regardless of its motive, suggests that the preservation of one’s own life at whatever cost is the summum bonum, a proposition with respect to which the greatest philosophers and theologians have not agreed and with respect to which the United States Constitution by its terms does not speak.

But because I am acting as surrogate for the full Court, and because the Court will have an opportunity to consider this application at its regularly scheduled Conference the last week of this month, I have resolved doubts which greatly trouble me as to my proper course of action in favor of continuing the injunction which I previously issued to and including Monday, October 1, 1979, unless previously modified or vacated by the Court.

      In Evans, the Court was informally advised after the date upon which I granted the stay that Evans had authorized the prosecution of the federal habeas corpus action in the United States District Court for the Southern District of Alabama.


text:
    PILON v. BORDENKIRCHER, WARDEN
    No. 78-6932.
    Decided October 9, 1979
   Per Curiam.

The petitioner was convicted in a Kentucky court on a charge of first-degree manslaughter, and the judgment of conviction was sustained on direct appeal. Pilon v. Common wealth, 544 S. W. 2d 228 (Ky. 1976). The petitioner then filed a habeas corpus petition in a Federal District Court, alleging that the Kentucky conviction was supported by evidence insufficient to afford him due process of law. The federal court denied relief. Applying the “no evidence” test of Thompson v. Louisville, 362 U. S. 199 (1960), the court concluded that “'[a] Ithough this was a close case on the evidence, we believe that the case was not devoid of an evidentiary basis for petitioner’s conviction.” The Court of Appeals for the Sixth Circuit, also relying on the “no evidence” test, affirmed the denial of habeas corpus relief. 593 F. 2d 264.

Thereafter, this Court in Jackson v. Virginia, 443 U. S. 307 (1979), held that the Thompson “no evidence” test is constitutionally inadequate in a case such as this. An earlier decision had made clear that the Due Process Clause of the Fourteenth Amendment prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. In re Winship, 397 U. S. 358 (1970). The Court in Jackson held that this constitutional requirement can be effectuated only if a federal habeas corpus court, in assessing the sufficiency of the evidence to support a state-court conviction, inquires “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U. S., at 319 (emphasis omitted).

It is thus beyond dispute that the District Court and Court of Appeals applied an incorrect and inadequate constitutional test in resolving the petitioner’s due process claim that his state-court conviction rested on insufficient evidence. Although it is quite possible that the evidence against the petitioner will survive a challenge under the correct constitutional standard, he is entitled to have his application for habeas corpus considered under that standard.

The motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is vacated, and the case is remanded to the District Court for the Western District of Kentucky so that it may consider the petitioner’s application for habeas corpus in the light of Jackson v. Virginia.

It is so ordered.

      The opinion of the District Court is unreported.


author: Per Curiam. Mr. Justice Marshall,

text:
    UNITED STATES et al. v. BENMAR TRANSPORT & LEASING CORP. et al.
    No. 78-1602.
    Decided October 15, 1979
   Per Curiam.

This case is here on certiorari to the United States Court of Appeals for the Second Circuit, which set aside an order of the Interstate Commerce Commission authorizing respondent Consolidated Truck Service, Inc., to begin contract carrier service in competition with respondent Benmar Transport & Leasing Corp. The order, issued October 5, 1977, was defective because it lacked the statutorily required finding that it was consistent “ 'with the public interest and with the national transportation policy' [§ 210] of the Interstate Commerce Act, 49 U. S. C. § 310 [now 49 U. S. C. § 10930 (a) (1976 ed., Supp. II)].” Benmar Transport & Leasing Corp. v. ICC, 582 F. 2d 246, 248 (1978).

The case was argued in the Court of Appeals on July 17, 1978, and decided August 16, 1978. In reaching its decision, the Court of Appeals refused to consider two subsequent Commission orders that remedied the defect. The first of these orders, issued with the consent of all interested parties almost six months before oral argument in the Court of Appeals, reopened the administrative proceedings and made the finding required by 49 U. S. C. § 310. The second, issued on April 18, 1978, denied respondent Benmar’s petition for administrative review of the former order. This denial became the Commission’s final administrative order and had the effect of reaffirming its earlier decision to grant Consolidated’s application for a contract carrier permit. Although the question briefed by the parties in the Court of Appeals was whether the order of April 18, 1978, was supported by the evidence, the Court of Appeals declined to examine the question on the ground that the only order properly before it was the defective order of October 5, 1977. It thus vacated the order and remanded the case for further proceedings.

We grant the petition of the United States and the Commission and reverse the judgment of the Court of Appeals. In American Farm Lines v. Black Ball Freight Service, 397 U. S. 532 (1970), this Court held that the Commission’s broad powers to “reverse, change, or modify” its decisions “are plainly adequate to add to the findings or firm them up as the Commission deems desirable, absent any collision or interference with the District Court.” Id., at 541. (The applicable statute then provided for review of orders of the Commission by a three-judge District Court, rather than by the Court of Appeals.) Here the Commission’s action did not interfere in any manner with the proceedings in the Court of Appeals, and the Commission acted before that court was ready to hear arguments on the merits and before it received the record. All parties concurred in the Commission’s decision to reopen the proceedings and to hold judicial review in abeyance pending the Commission’s final disposition of Ben-mar’s petition for administrative review. The position of the parties — both those who prevailed and those who lost before the Commission — is convincingly demonstrated by the fact that no party has filed a brief in support of the decision reached by the Court of Appeals.

As the Court said in American Farm Lines, supra, “[t]he concept ‘of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit’ some statutory schemes, . . . but it does not fit this one.” 397 U. S., at 541. After the abolition of the “forms of action” in the early common law, it was said that “[t]he forms of action we have buried, but they still rule us from their graves.” F. Maitland, The Forms of Action at Common Law 2 (1936). Orderly rules of procedure are necessary in order that appellate review may be had of agency findings, but empty formalities devoid of either substantive or procedural benefit have no place in the normal scheme for administrative review unless Congress chooses to place them there. Here Congress has quite clearly not chosen to impose such virtually meaningless requirements as the Court of Appeals insisted upon. The judgment of the Court of Appeals is inconsistent with the spirit which animated American Farm Lines v. Black Ball Freight Service, supra, and is therefore

Reversed.

Mr. Justice Marshall,

dissenting.

The Court today summarily reverses the judgment of the United States Court of Appeals for the Second Circuit setting aside an order of the Interstate Commerce Commission which concededly lacked a statutorily required finding. The Court takes this action because of two subsequent orders which the Commission issued after the petition for review had been filed with the Court of Appeals without seeking the permission of that court or taking any of the proper procedural steps. I dissent.

Since the procedural timetable' involved in this case is important to the issue presented, it is necessary to set out more fully the proceedings below. Respondent Benmar Transport & Leasing Corp. filed a petition to review the order of the ICC with the Court of Appeals on January 13, 1978. There were no petitions for reconsideration still pending at that time. Thereafter, counsel for Benmar notified the ICC that the order was patently defective because of the lack of a statutorily required finding. The ICC on its own motion reopened the administrative proceedings on January 27, 1978, and made the necessary statutory finding. The parties then, filed a motion in the Court of Appeals for an extension of time in which to file the record and briefs, and an extension was granted until March 8, 1978. Benmar filed an administrative petition for reconsideration and for reopening the ICC proceedings for receipt of new evidence on February 27, 1978. The reply to this petition was not filed with the ICC by respondent Consolidated Truck Service, Inc., until March 16, 1978 — well after the deadline for filing the record and briefs with the Court of Appeals. Meanwhile, on March 7, 1978, the day before the record and briefs were due to be filed with the court, the ICC moved to have further judicial proceedings held in abeyance pending the Commission's disposition of Benmar’s petition. Before the Court of Appeals could rule on this motion, the Clerk of that court was informed by Ben-mar’s counsel that as an alternative to the motion to hold the action in abeyance Benmar intended to withdraw the petition for judicial review subject to reinstatement within 30 days after the disposition of the administrative petition. Benmar and the ICC attempted to draft a stipulation to that effect, but no stipulation was ever filed with the court. On April 18, 1978, the ICC denied Benmar’s petition for reconsideration, thus making the January 27 order final. Benmar then filed an amended petition for judicial review, and a new schedule for filing the record and briefs had to be established by the court.

In light of this procedural history, it is astounding that the majority can assert that “the Commission’s action did not interfere in any manner with the proceedings in the Court of Appeals, and the Commission acted before that court was ready to hear arguments on the merits and before it received the record.” The ICC simply ignored the time limits established by the Court of Appeals and thereby prevented judicial review altogether. The Court of Appeals was not ready to hear argument and had not received the record solelv because the ICC did not deign to comply with the scheduling orders of the court. The Commission did not even bother to move for a second extension. Such actions by a litigant should not be condoned by this Court.

The case upon which the majority relies so heavily, American Farm Lines v. Black Ball Freight Service, 397 U. S. 532 (1970), is not controlling. In that case there was a multiparty proceeding before the ICC. Some carriers filed petitions for reconsideration before the Commission, but while those petitions were pending other carriers filed for judicial review. The District Court temporarily restrained operation of the ICC’s original order but did not affect the pending administrative petitions. For those parties whose petitions were pending before the Commission, there was “no final action” and the ICC retained “jurisdiction to complete the administrative process.” Id., at 541 (emphasis added). It was for this reason that “both tribunals have jurisdiction” of the matter. Ibid., quoting Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U. S. App. D. C. 324, 327, 248 F. 2d 646, 649 (1957). This Court stressed, however, that the Commission “did not act inconsistently” with the court but rather had acted “in full harmony with the court’s jurisdiction.” 397 U. S., at 541-542.

This concurrent-jurisdiction concept is inapplicable in the present case. At the time the petition for judicial review was filed no petitions for reconsideration were pending before the ICC. The administrative proceedings were complete and the order was final as to all parties. In addition, as already noted, the ICC here did not act in full harmony with the jurisdiction of the Court of Appeals. Instead, the Commission through its actions simply forced the court to forgo the proper exercise of its jurisdiction until the ICC and the other litigants decided for themselves that they would file the record and briefs. The decision in American Farm Lines was not meant to give the Commission the power to stall judicial review. Contrary to the assertions of the majority, preventing the court from being effectively deprived of jurisdiction through the willful actions of litigants ignoring proper scheduling orders hardly constitutes “empty formalities.” Since this Court today encourages the ICC to interfere with the proper exercise of jurisdiction of the Court of Appeals, I dissent.

      The dissenting opinion makes the bald statement that “[t]he ICC simply ignored the time limits established by the Court of Appeals and thereby prevented judicial review altogether. The Court of Appeals was not ready to hear argument and had not received the record solely because the ICC did not deign to comply with the scheduling orders of the court.” The opinion of the Court of Appeals, Benmar Transport & Leasing Corp. v. ICC, 582 F. 2d 246 (1978), lends no support to this statement. Respondent Benmar petitioned the court to set aside the Commission’s order but consented along with other interested parties to the reopening of the Commission proceedings before the record had been filed with the Court of Appeals or oral argument heard by that court. After the Commission completed these proceedings, it issued its final order of April 18,11978 — an order which was reviewable by the Court of Appeals pursuant to 28 U. S. C. §§ 2341-2349. The Court of Appeals thus was not deprived of its jurisdiction over this dispute. Rather, for no apparent reason other than to insist that the parties comply with an “empty formality,” the Court of Appeals stated in its opinion that “when an agency seeks to reconsider its action, it should move the court to remand or to hold the case in abeyance pending reconsideration by the agency.” 582 F. 2d, at 248. If such action were necessary in order to avoid genuine interference “in any manner with the proceedings in the Court of Appeals,” supra, at 5, we would have a different case. But since we conclude that there was no such interference, the mere fact that application for reopening was not made to the Court of Appeals was not fatal when all interested parties consented to such reopening. See American Farm Lines v. Black Ball Freight Service, 397 U. S. 532 (1970).

      In light of the conceded facts that after one extension the record and briefs were to be filed with the Court of Appeals by March 8, 1978, and that the ICC did not even render its revised final order until April 18, 1978, much less file the record and briefs, it does not require specific language in the lower court’s opinion for this Court to be aware of the necessary conclusion that judicial review was delayed by the actions of the Commission. The majority’s repeated assertion that there was no interference with the proceedings in the Court of Appeals simply ignores the procedural history below. The fact that Benmar consented to the ICC’s actions does not change the fact that these litigants, like all other litigants, owe an obligation to the court not to delay judicial proceedings.