text:
    McCARTHY et al. v. BRISCOE, GOVERNOR OF TEXAS, et al.
    No. A-247.
    Decided September 30, 1976
   Mr. Justice Powell, Circuit Justice.

This is an application for injunctive relief, presented to me as Circuit Justice. The applicants, former Senator Eugene J. McCarthy and four Texas voters who support Senator McCarthy’s independent candidacy for President, have asked that I order Senator McCarthy’s name placed on the 1976 general election ballot in Texas. They sought relief without success from a three-judge District Court for the Western District of Texas and, on appeal, from the Court of Appeals for the Fifth Circuit. Upon consideration of the record before me, I have concluded that the courts below erred in failing to remedy a clear violation of the applicants’ constitutional rights. I have therefore granted the requested relief.

Effective September 1, 1975, Texas amended its Election Code so as to preclude candidates for the office of President from qualifying for position on the general election ballot as independents. Acts of 1975, c. 682, § 23, codified in Tex. Elec. Code, Art. 13.50, subd. 1 (Supp. 1976). Before that date independent candidates for all offices had been able to gain access to the ballot by submitting a prescribed number of voters’ signatures by a deadline several months in advance of the general election. Tex. Elec. Code, Arts. 13.50, 13.51 (1967); see American Party of Texas v. White, 415 U. S. 767, 788-791 (1974). Under the new law that method of qualifying for the ballot was carried forward for most offices, but not for the office of President. A Presidential candidate must now be a member of a political party as a precondition to securing a place on the ballot An independent candidate can seek election as President only by joining or organizing a political party, Tex. Elec. Code, Arts. 13.02, 13.45 (Supp. 1976), or by mounting a campaign to have his supporters “write in” his name on election day, Arts. 6.05, 6.06 (Supp. 1976).

On July 30, 1976, the applicants filed this suit in the District Court, claiming that Art. 13.50 of the Texas Election Code, as amended, violated the rights “secured to them under Article II, Section 1, Clauses 2 and 4, and Article VI, Clause 2 of the United States Constitution and the First, Twelfth and Fourteenth Amendments thereto.” The applicants asked the court to order Senator McCarthy’s name placed on the ballot or, alternatively, to devise reasonable criteria by which Senator McCarthy might demonstrate support for his candidacy as a means of qualifying for ballot position. The applicants submitted affidavits that tended to show that Senator McCarthy was a serious Presidential aspirant with substantial support in many States.

The defendants, the Governor and Secretary of State of the State of Texas, denied that the new law was unconstitutional and claimed that Senator McCarthy was barred by laches from obtaining the injunctive relief he requested. In support of the laches claim, the defendants presented the affidavit and later the live testimony of Mark W. White, Jr., the Secretary of State, to the effect that it would be impossible in the time remaining before the November election for the State to verify that Senator McCarthy had substantial support among Texas voters.

On September 3, 1976, the District Court held that the Texas law, as amended, was constitutionally invalid for failure to provide independents a reasonable procedure for gaining ballot access, but declined to enter injunctive relief. The court perceived its only choice to be one

“between standing by and permitting this incomprehensible policy to achieve its apparent objective or substantially burdening the entire general election at the behest of one who has at least dawdled over his rights . . . .” Memorandum Opinion 2.

Believing it to be “too late for us to fashion meaningful relief without substantially disrupting the entire Texas election scheme,” the court concluded that injunctive relief was not warranted. Ibid.

On September 23, 1976, the Court of Appeals denied the applicants’ request for emergency injunctive relief on the same basis:

“We are . . . regretfully constrained to agree with the District Court that because the complaint was so lately filed there is insufficient time for the Court to devise a petition requirement for ascertaining whether McCarthy has substantial community support in Texas without disrupting the entire election process in that state. . . .”

The following day, September 24, 1976, the applicants presented this application to me as Circuit Justice.

The new Texas law precluding independent candidates for President from gaining access to the general election ballot as independents raises no novel issue of constitutional law. In Storer v. Brown, 415 U. S. 724 (1974), the Court flatly rejected the notion that an independent could be forced to seek ballot position by joining or organizing a political party:

“It may be that the 1% registration requirement is a valid condition to extending ballot position to a new political party. Cf. American Party of Texas v. White, [415 U. S. 767 (1974)]. But the political party and the independent candidate approaches to political activity are entirely different and neither is a satisfactory substitute for the other. A new party organization contemplates a statewide, ongoing organization with distinctive political character. Its goal is typically to gain control of the machinery of state government by electing its candidates to public office. From the standpoint of a potential supporter, affiliation with the new party would mean giving up his ties with another party or sacrificing his own independent status, even though his possible interest in the new party centers around a particular candidate for a particular office. For the candidate himself, it would mean undertaking the serious responsibilities of qualified party status . . . such as the conduct of a primary, holding party conventions, and the promulgation of party platforms. But more fundamentally, the candidate, who is by definition an independent and desires to remain one, must now consider himself a party man, surrendering his independent status. Must he necessarily choose the political party route if he wants to appear on the ballot in the general election? We think not.” Id., at 745-746.

And in Lubin v. Panish, 415 U. S. 709 (1974), the Court characterized as “dubious at best” the intimation that a write-in provision was an acceptable means of ballot access:

“The realities of the electoral process . . . strongly suggest that 'access' via write-in votes falls far short of access in terms of having the name of the candidate on the ballot. . . . That disparity would, itself, give rise to constitutional questions . . . .” Id., at 719 n. 5.

In view of these pronouncements, the District Court was fully justified in characterizing the new Texas law — enacted little more than a year after Storer and Lubin were decided — as demonstrating an “intransigent and discriminatory position” and an “incomprehensible policy.”

Despite this recognition of the clear constitutional infirmity of the Texas statute, the District Court refused to grant the requested relief. The District Court, and the Court of Appeals, apparently assumed that the only appropriate remedy was to order implementation of the former statutory procedure permitting independent Presidential candidates to demonstrate substantial support by gathering a prescribed number of voters' signatures — a procedure still available to independent candidates for most other elective offices. Since the signature-gathering procedure involved not only a filing deadline which had long since expired but also a lengthy process of signature verification, both lower courts concluded that there was too little time to impose a signature-gathering requirement without undue disruption of the State’s electoral process.

This Court will normally accept findings of a district court, affirmed by a court of appeals, on factual considerations such as those underlying a determination of laches. But acceptance of findings of fact does not in this case require acceptance of the conclusion that violation of the applicants’ constitutional rights must go unremedied. In assuming that a signature-gathering process was the only available remedy, the courts below gave too little recognition to the amendment passed by the Texas Legislature making that very process unavailable to independent candidates for the office of President. In taking that action, the Texas Legislature provided no means by which an independent Presidential candidate might demonstrate substantial voter support. Given this legislative default, the courts were free to determine on the existing record whether it would be appropriate to order Senator McCarthy’s name added to the general election ballot as a remedy for what the District Court properly characterized as an “incomprehensible policy” violative of constitutional rights. This is a course that has been followed before both in this Court, see Williams v. Rhodes, 89 S. Ct. 1, 21 L. Ed. 2d 69 (1968) (Stewart, J., in chambers), and, more recently, in three District Court decisions involving Senator McCarthy, McCarthy v. Noel, No. 76-0402 (RI Sept. 24, 1976); McCarthy v. Tribbitt, No. 76-300 (Del. Sept. 16, 1976); McCarthy v. Askew, No. 76-1460-Civ-NCR (Fla. Sept. 15, 1976).

In determining whether to order a candidate’s name added to the ballot as a remedy for a State’s denial of access, a court should be sensitive to the State’s legitimate interest in preventing “laundry list” ballots that “discourage voter participation and confuse and frustrate those who do partidpate.” Lubin v. Panish, supra, at 715. But where a State forecloses independent candidacy in Presidential elections by affording no means for a candidate to demonstrate community support, as Texas has done here, a court may properly look to available evidence or to matters subject to judicial notice to determine whether there is reason to assume the requisite community support. See McCarthy v. Askew, supra.

It is not seriously contested that Senator McCarthy is a nationally known figure; that he served two terms in the United States Senate and five in the United States House of Representatives; that he was an active candidate for the Democratic nomination for President in 1968, winning a substantial percentage of the votes cast in the primary elections; and that he has succeeded this year in qualifying for position on the general election ballot in many States. The defendants have made no showing that support for Senator McCarthy is less substantial in Texas than elsewhere.

For the reasons stated, I have ordered that the application be granted and that the Secretary of State place the name of Eugene J. McCarthy on the November 1976 general election ballot in Texas as an independent candidate for the office of President of the United States. I have con-suited informally with each of my Brethren and, although no other Justice has participated in the drafting of this opinion, I am authorized to say that a majority of the Court would grant the application.

       Although the application is styled “Application for a partial stay of an order and judgment of the United States Court of Appeals, Fifth Circuit,” the applicants actually seek affirmative relief. I have therefore treated the papers as an application for an injunction pursuant to 28 U. S. C. § 1651 and Rules 50 and 51 of this Court.

       The applicants filed an initial application in this Court for a stay of the District Court order on September 8, 1976, before they had filed an appeal to the Court of Appeals. In my capacity as Circuit Justice, I denied that request on September 14 on the ground that this Court was without jurisdiction to entertain a direct appeal from the District Court under 28 U. S. C. § 1253. Ante, p. 1316. See MTM, Inc. v. Baxley, 420 U. S. 799, 804 (1975). I specified that the denial was without prejudice to the applicants’ right to seek relief in the Court of Appeals. The applicants filed a notice of appeal in the Court of Appeals on September 16; the Court of Appeals denied their request for interlocutory relief on September 23; and the applicants renewed their application here the following day.

       Candidates for the offices of Vice Presidential and Presidential elector are similarly excluded from qualifying as independents. Art. 13.50, subd. 1 (Supp. 1976). Although two of the applicants are candidates for the office of Presidential elector, they have not specifically sought relief with respect to their own candidacies. My order of September 27 (see n. 4, infra) is sufficiently broad to encompass such relief, to the extent necessary to perfect Senator McCarthy's qualification for general election.

       The order granting the application was issued on September 27, 1976. The Texas Election Code does not appear to prescribe a deadline for the printing of ballots for the general election. The earliest date when printed ballots are required for any purpose is October 13, 20 days before the election, when the statutory period for absentee voting by mail begins. Art. 5.05, subd. 4(a) (Supp. 1976). Ballots are to be mailed to persons outside the United States “as soon as possible after the ballots become available, but not earlier than [October 3],” Art. 5.05, subd. 4e, and to others intending to vote by mail on October 13 “or as soon thereafter as possible,” Art. 5.05, subd. 4 (b). Political parties are not required to certify their nominees to the Secretary of State until September 28, Art. 11.04 (1967), and the Secretary of State is not required to certify the names of those who have qualified for ballot position to local election officials until October 3, Art. 1.03, subd. 2 (Supp. 1976). Thus there appears to be ample time to add Senator McCarthy’s name.

       Mr. Justice White, Mr. Justice Marshall, Mr. Justice Black-mun, and Mr. Justice Rehnquist have asked to be recorded as holding a different view.


source: Caselaw Access Project

author: Mr. Justice Marshall, Circuit Justice.

license: Public Domain

text:
    FISHMAN et al. v. SCHAFFER, SECRETARY OF STATE OF CONNECTICUT, et al.
    No. A-257.
    Decided October 1, 1976
   Mr. Justice Marshall, Circuit Justice.

This is an application to me as Circuit Justice for an injunction ordering officials of the State of Connecticut to place on the ballot for the November 2 election the names of the Communist Party candidates for President and Vice President of the United States, Gus Hall and Jarvis Tyner, ■ respectively. Applicants sought relief without success from a three-judge District Court for the District of Connecticut and, on appeal, from the Court of Appeals for the Second Circuit. While there is no question of my power to grant such relief, this Court’s Rule 51; McCarthy v. Briscoe, ante, p. 1317 (Powell, J., in chambers); Williams v. Rhodes, 89 S. Ct. 1, 21 L. Ed. 2d 69 (1968) (Stewart, J., in chambers), it is equally clear that “such power should be used sparingly and only in the most critical and exigent circumstances.” Williams v. Rhodes, 89 S. Ct., at 2, 21 L. Ed. 2d, at 70. Since this case does not meet that standard, I must deny the requested relief.

Applicants filed their complaint on July 2, 1976-, attacking as unconstitutionally burdensome certain provisions of the Connecticut election law which apply to candidates seeking to get on the ballot by means of nominating petitions. They sought declaratory and injunctive relief against enforcement of only a small segment of this procedure — the prescribed method for filing the completed petitions. Conn. Gen. Stat. §9-453a etseq. (1975).

In order to demonstrate a “significant modicum of support,” Jenness v. Fortson, 403 U. S. 431, 442 (1971), Connecticut requires potential candidates to submit petitions signed by electors equal to one percent of the number who voted for the same office in the previous election. Conn. Gen. Stat: § 9-453d (1975). The petitions are available immediately after the last statewide election and do not have to be filed until nine weeks before the relevant election. § 9-453L Thus, the numerical and time requirements of the statute are, as the District Court observed, “markedly more favorable” to the potential candidate than are constitutionally required. Civ. No. H-76-263 (Conn., July 2, 1976); see Storer v. Brown, 415 U. S. 724 (1974); American Party of Texas v. White, 415 U. S. 767 (1974); Jenness v. Fortson, supra; Note, Developments in the Law—Elections, 88 Harv. L. Rev. 1111, 1123-1130 (1975).

As a means of assuring the authenticity of the signatures collected, the law requires that the circulator sign a statement under penalty of perjury that (1) each signer of a petition signed the petition in his or her presence, and (2) he or she either knew the signer, or the signer satisfactorily identified himself or herself to the circulator. This procedure must be performed personally before the town clerk in each town, where any petition signer resides. Applicants do not object to the need for the circulator to make the required statement. They claim, however, that the requirement that it be done personally in front of numerous town clerks necessitates so much travel that it is unconstitutionally burdensome. While acknowledging that the State has a valid and important interest in assuring the authenticity of the signatures and the eligibility of the signers, applicants argue that this interest can be served in ways less burdensome to the circulators.

The District Court, while sympathetic to this claim, did not rule on the merits, since it found applicants’ suit barred by laches. It noted that applicants had tried and failed to qualify for a position on the ballot in a previous election. They were familiar with the statute and could have brought suit earlier. The delay meant that the legislature could not consider alternative filing requirements; instead, relief, if warranted, would have to be the drastic remedy of putting the candidates on the ballot, leaving the State with no protection of its interest in authenticity. Accordingly, the District Court dismissed the action. The Court of Appeals, in an expedited appeal, affirmed without opinion.

Turning to the merits of the application, as I noted previously, the relief sought is extraordinary. So far as I am aware, a single Justice of this Court has ordered a State to put a candidate’s name on the ballot only twice. McCarthy v. Briscoe, ante, p. 1317; Williams v. Rhodes, supra. This case lacks all the significant features warranting relief in those cases.

McCarthy presented “no novel issue of constitutional law.” Ante, at 1320. In Mr. Justice Powell’s view, the Texas Legislature had adopted an “ ‘incomprehensible policy,’ ” amending its Election Code so as to preclude independent candidates for the office of President from qualifying for the general election ballot. Ante, at 1321. This deliberate refusal to provide access to independents was characterized by both the District Court and Mr. Justice Powell as demonstrating an “ ‘intransigent and discriminatory position.’ ” Ibid. Thus, there was no question that Texas had clearly violated the constitutional requirements for ballot access.

In contrast, the constitutionality of the Connecticut statute is at best a close question. I have no doubt about the correct standard of review:

“[W]hether the qualifications for ballot position are viewed as substantial burdens on the right to associate or as discrimination . . . their validity depends upon whether they are necessary to further compelling state interests. . . . [The limitations must be] reasonably taken in pursuit of vital state objectives that cannot be served equally well in significantly less burdensome ways.” American Party of Texas v. White, supra, at 780-781.

Nevertheless, there is little precedent dealing specifically with filing procedures. Indeed, the one case touching on the subject, American Party of Texas v. White, suggests that a requirement more burdensome than Connecticut’s — that all signatures be notarized at the time they are collected — is not unconstitutional, at least absent more proof of impracticability or unusual burdensomeness than was before the Court. 415 U. S., at 787. Moreover, unlike the Texas law in McCarthy which provided no means of access whatever for an independent candidate, and the Ohio law which made it “virtually impossible” for a new political party to get on the ballot, Williams v. Rhodes, 393 U. S. 23, 25 (1968), Connecticut has one of the more liberal ballot-access statutes. Far from the intransigence found in McCarthy, here the Connecticut Legislature apparently sought to deal rationally with abuses it had encountered in the petitioning process. See Connecticut General Assembly, 7 House Proceedings 2313-2314 (1957).

Furthermore, while there may be less burdensome ways to authenticate signatures, the fact remains that a number of groups have successfully used the Connecticut procedures. Since 1968, four petitioning parties have qualified on a statewide basis under the same procedures now attacked. Affidavit of Henry Cohn, Elections Attorney and Director of the Elections Division of the Secretary of State’s Office, Aug. 2, 1976. In addition, according to Mr. Cohn’s later affidavit of September 17,1976, it appeared that the United States Labor Party would qualify Presidential candidates this year. In view of this record showing that it is feasible to comply with the requirement under attack, applicants’ claims that the statute is unduly onerous become less compelling. See American Party of Texas v. White, supra, at 779, 783-784. While I do not intimate that applicants may not ultimately prevail on the merits, I do conclude that unlike McCarthy, the question is too novel and uncertain to warrant a single Justice’s acting unilaterally to strip the State of its chosen method of protecting its interests in the authenticity of petition signatures.

In addition to these distinctions on the merits, there are several additional factors militating against the extraordinary relief sought. First, applicants delayed unnecessarily in commencing this suit. The statute is not a new enactment and applicants have, in fact, utilized it before. In 1972, the Communist Party unsuccessfully circulated petitions for Presidential electors. And in 1974, Joelle Fishman, one of the applicant-electors in this suit, successfully qualified as a petitioning candidate for Congress. Thus applicants were sufficiently familiar with the statute’s requirements and could have sued earlier. Moreover, respondents strongly oppose the relief sought, claiming that an injunction at.this time would have a chaotic and disruptive effect upon the electoral process. Defendants’ Response in Opposition to Application 1. The Presidential and overseas ballots have already been printed; some have been distributed. The general absentee ballots are currently being printed. Id., at 2. This stands in marked contrast to the situation in Williams v. Rhodes, where Ohio agreed that the American Independent Party could be placed on the ballot without disrupting the election. 89 S. Ct., at 2, 21 L. Ed. 2d, at 70; Williams v. Rhodes, 393 U. S., at 35. It also differs from McCarthy, where it appears that Texas had neither printed nor distributed any ballots when the injunction was issued. Ante, at 1323-1324, n. 4.

For these reasons, I conclude that the application should be denied.

It is so ordered.

       Applicants are two petition circulators (Fishman and Gagyi) and the Presidential and Vice Presidential candidates of the Communist Party (Hall and Tyner), for whose candidacy Fishman and Gagyi circulated petitions.

       In view of the District Court’s denial of relief on equitable grounds without deciding the merits of the constitutional attack, applicants properly sought review initially in the Court of Appeals. See McCarthy v. Briscoe, ante, at 1317-1318, n. 2; MTM, Inc. v. Baxley, 420 U. S. 799, 804 (1975).

       Specifically, they object to those portions of Conn. Gen. Stat. §§ £M153i and 453k (1975) which require:
      1. “Each page of a nominating petition shall be submitted by the person who circulated the same to the town clerk of the town in which the signers reside §9-453i (emphasis supplied).
      2. “The town clerk shall not accept any page of a nominating petition unless the circulator thereof signs in his presence the statement as to the authenticity of the signatures thereon required by section 9-453j.” § 9-453k (a) (emphasis supplied).
      3. “The town clerk shall certify on each- such page that the circulator thereof signed such statement in his presence and that either he knows the circulator or that the circulator satisfactorily identified himself to the town clerk.” § 9-453k (b) (emphasis supplied).

       I imply no* view on the correctness of the dismissal of the action insofar as it seeks declaratory relief. Moreover, I note that that claim will not be rendered moot by the occurrence of the election or by our refusal to grant affirmative relief now. American Party of Texas v. White, 415 U. S., at 770 n. 1; Storer v. Brown, 415 U. S. 724, 737 n. 8 (1974).


author: Me. Justice Rehnquist, Circuit Justice.

text:
    VOLVO OF AMERICA CORP. v. SCHWARZER, U. S. DISTRICT JUDGE (ROSACK et al., REAL PARTIES IN INTEREST)
    No. A-395.
    Decided November 15, 1976
   Me. Justice Rehnquist, Circuit Justice.

Applicant seeks a stay of an order of the District Court for the Northern District of California remanding this case to the California state-court system. Because I believe, for the reasons outlined below, that the order of the District Court is not subject to review, the application will be denied.

This state-law antitrust action was originally brought by Charlene Rosack in the California Superior Court for San Mateo County seeking damages individually and on behalf of a class of persons who purchased new Volvo automobiles from California Volvo dealers during the years 1967-1976. Defendants removed the action to the Federal District Court pursuant to 28 U. S. C. § 1441 (a), alleging that the action was within the original diversity jurisdiction of this court as prescribed in 28 U. S. C. § 1332. Plaintiff moved to remand the action to the state court on the ground, inter alia, that the amount in controversy did not exceed $10,000 as required by § 1332. The District Court granted the motion. Its action was premised on the belief that the case “must be treated as a class action for the purpose of determining jurisdictional issues,” whereas here “it appears that only a few members of a class estimated to have some 50,000 members meet the jurisdictional requirement.” The District Court accordingly held:

“It thus appears to a legal certainty that this Court does not have jurisdiction of this action. It is a class action brought on behalf of a class of plaintiffs the vast majority of which do not satisfy the amount in controversy requirement with respect to their separate and distinct claims. Under Zahn [v. International Paper Co., 414 U. S. 291 (1973)], all of those plaintiffs would have to be dismissed and, if feasible, a class substantially different from that on whose behalf the action was brought certified. Accordingly, since the action could not be maintained in this Court on behalf of the class for which it was brought, it must be remanded. 28 U. S. C. 11447(c).”

Applicant attacks this conclusion, contending that since the District Court specifically found that jurisdiction existed over “a few members of” the class, the court’s order remanding the entire action was not authorized by 28 U. S. C. § 1447 (c). The flaw in this argument is that, while the District Court may have been wrong in its analysis, it clearly stated, citing to § 1447 (c), that it considered itself without jurisdiction. The District Court therefore thought it was acting in accordance with § 1447 (c), which allows a remand where an action is “removed improvidently and without jurisdiction.” Review of this order, therefore, is presumptively barred by the operation of 28 U. S. C. § 1447 (d) :

“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.”

We held last Term in. Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336 (1976), where the District Court ordered a remand because of its crowded docket, that § 1447 (d) did not bar review of remand orders “issued on grounds not authorized by § 1447 (c),” 423 U. S., at 343. But the District Court here did base its order on § 1447 (c). Therm-tron is of no help to applicant as the remand was explicitly based on an allegedly erroneous finding that the court “does not have jurisdiction of this action,” see 423 U. S., at 343-344. Applicant’s position would mean that any allegedly erroneous application of § 1447 (c) would be reviewable by writ of mandamus, leaving the § 1447 (d) bar extant only in the case of allegedly proper applications of § 1447 (c), a reading too Pickwickian to be accepted, and contrary to the clear language of Thermtron.

Since I do not believe four Members of this Court would find the order of the District Court subject to review, the application for a stay is denied.

       The Ninth Circuit denied the petition for a writ of mandamus and/or prohibition on November 11, 1976.

       In Thermtron, the District Court acknowledged that the defendant had a “right” to remove the action, pursuant to 28 U. S. C. § 1441, but that this right had to be “ ‘balanced against the plaintiffs’ right to a forum of their choice and their right to a speedy decision on the merits of their cause of action.’ ” 423 U. S., at 340. As we noted, that order “was based on grounds wholly different from those upon which § 1447 (c) permits remand.” Id., at 344.

       “It is unquestioned' in this case and conceded by petitioners that this section prohibits review .of all remand orders issued pursuant to § 1447 (c) whether erroneous or not .... If a trial judge purports to remand a case on the ground that it was removed ‘improvidently and without jurisdiction,’ his order is not subject to challenge in the court of appeals by appeal, by mandamus, or otherwise.” 423 U. S., at 343 (emphasis added).


text:
    EVANS, GOVERNOR OF WASHINGTON, et al. v. ATLANTIC RICHFIELD CO. et al.
    No. A-456.
    Decided December 9, 1976
   Mr.' Justice Rehnquist, Circuit Justice.

Applicants, officials of the State of Washington, seek a stay of the order of the United States District Court for the Western District of Washington, entered November 12, 1976, enjoining enforcement of Chapter 125 of the Laws of the. State of Washington, 1975, First Extraordinary Session, Wash. Rev. Code § 88.16.170 et seq. This statute, designed “to decrease the likelihood of oil spills on Puget Sound and its shorelines,” imposes regulations on oil tankers over 40,000 deadweight tons (DWT) and prohibits “supertankers” of over 125,000 DWT. On the date the statute became effective, September 8; 1975, respondents filed suit in the United States District Court for the Western District of Washington, claiming that Chapter 125 had been preempted by federal law, particularly the Ports and Waterways Safety Act of 1972 (PWSA), 86 Stat. 424, as amended, 33 U. S. C. § 1221 et seq. (1970 ed., Supp. V), 46 U. S. C. § 391a (1970 ed., Supp. V), and that Chapter 125 imposed an undue burden on interstate commerce, in violation of the Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3. A three-judge court was convened pursuant to 28 U. S. C. §§ 2281 and 2284; the case was heard pursuant to an agreed statement of facts; and an opinion was issued on September 23, 1976, holding Chapter 125 pre-empted in its entirety: the state pilotage requirement by conflict with 46 U. S. C. §§ 215 and 364, and the remainder of Chapter 125 by the PWSA. On motion by respondents a permanent injunction was issued on November 12, 1976, but that order was stayed until December 15,1976.

On consideration of the application and response, it appears that the issues involved are of sufficient complexity, and their resolution sufficiently uncertain, to warrant consideration by the full Court. Such consideration ordinarily occurs at a regularly scheduled Conference of the Court, to which the matter is referred by the Circuit Justice. The Court has a Conference scheduled for Friday, December 10, but I have elected not to refer this application to that Conference. Consideration by the full Court presupposes adequate time for each Justice to study the application and response prior to Conference, and at this point such time simply is not available.

Since I do not believe that this case is of such extraordinary urgency as to warrant my requesting The Chief Justice to schedule a special Conference to consider it, I have elected to refer the application to the next regularly scheduled Conference of the Court. Because that Conference will occur after December 15, the date on which the stay issued by the District Court expires, I think it is incumbent on me to exercise my authority as Circuit Justice to determine how the matter shall remain until it can be considered by the full Court. The state officials’ showing of irreparable injury in the absence of a temporary stay, while not entirely unpersuasive, is not by any means overwhelming. Respondents’ estimates of financial loss if the District Court stay is continued are at least equally marginal. Respondents have operated in compliance with the state statute for more than a year, and at no time during the pendency of their suit in the District Court did they seek preliminary relief. On balance I have decided that respondents should be required to continue to operate in this manner pending consideration of the application by the Court.

It is therefore ordered that the stay of the order of permanent injunction dated November 12, 1976, which would by its terms expire December 15, 1976, be continued until further order of this Court. The application for stay will be referred to the full Court at the Conference following December 10.

      Tankers between 40,000 and 125,000 DWT may enter Puget Sound (a) if they contain certain enumerated safety features or (b) if they are accompanied by a tug escort. Tankers over 50,000 DWT are required to have state-licensed pilots on board when navigating Puget Sound.


text:
    MEEROPOL et al. v. NIZER et al.
    No. A-543.
    Decided January 18, 1977
   Mr. Justice Marshall, Circuit Justice.

Applicants Michael and Robert Meeropol brought this action in the District Court for the Southern District of New York against respondent Nizer, author of the book The Implosion Conspiracy, and respondents Doubleday & Co. and Fawcett Publications, its publishers, alleging copyright infringement, libel, and invasion of privacy. Summary judgment was granted for respondents on all claims, and applicants have appealed to the Court of Appeals for the Second Circuit. Applicants move before me as Circuit Justice to issue a certificate of necessity under 28 U. S. C. § 291 (a) or 28 U. S. C. § 1651, requesting The Chief Justice to designate judges from other circuits to sit in the appeal of this case.

Applicants are the sons of Julius and Ethel Rosenberg, who were executed in 1953 after their convictions for conspiracy to commit espionage. See United States v. Rosenberg, 195 F. 2d 583 (CA2), cert. denied, 344 U. S. 838 (1952) ; Rosenberg v. United States, 346 U. S. 273 (1953). The gravamen of applicants' action is that the Nizer book infringed the copyright which applicants own in the book Deathhouse Letters of Ethel and Julius Rosenberg, and libeled and invaded the privacy of applicants in its portrayal of the Rosenbergs’ relationship with their children. Applicants contend in this motion that all of the judges of the Second Circuit are disqualified from hearing their appeal, essentially because they are, in the words of Judge Mansfield's decision, “associates,” “friends,” and “consultants” of Chief Judge Irving R. Kaufman of the Second Circuit, who presided as a District Judge over the Rosenberg trial and imposed the death sentences.

As far as I can determine, 28 U. S. C. § 291 (a) has never been construed by this Court, although it is often used to assign judges to temporary duty on the courts of appeals. Generally such assignments are made to assist a circuit with a heavy workload, although assignments have been made where an entire court of appeals has disqualified itself from hearing a case. See, e. g., United States v. Isaacs, 493 F. 2d 1124, 1167-1168 (CA7), cert. denied, 417 U. S. 976 (1974); cf. United States v. Manton, 107 F. 2d 834 (CA2 1939), cert. denied, 309 U. S. 664 (1940). In such cases, however, the circuit judges themselves make the decision not to sit, thereby making it impossible to designate a panel to hear an appeal, and causing the “need” under § 291 (a) for the issuance of a certificate of necessity. Such need is plain to anyone looking at the situation, and the duty to issue the certificate must be considered purely a ministerial act to deal with an administrative problem, whether performed by the chief judge of the circuit or the circuit justice. See “An Act to amend the Judicial Code to authorize the Chief Justice of the United States to assign circuit judges to temporary duty in circuits other than their own,” 56 Stat. 1094; H. R. Rep. No. 2501, 77th Cong, 2d Sess. (1942); S„ Rep. No. 1606, 77th Cong., 2d Sess. (1942).

Because § 291 (a) deals with a purely administrative matter, it would be inappropriate for me to rule in the context of an application under it that all of the judges of the Second Circuit are as a matter of law disqualified from hearing applicants’ appeal. At best that question could be addressed only by the full Court. Cf. Locks v. Commanding General, 89 S. Ct. 31, 21 L. Ed. 2d 78 (1968) (Douglas, J., in chambers). Sitting as a Circuit Justice, I simply do not have the power to unseat all of the judges of a court of appeals in a particular case absent any showing that they have recused themselves.

Applicants move in the alternative for transfer of their appeal to another court of appeals. They have cited no statutory or case authority even intimating that a Circuit Justice may exercise any such far-reaching power. See MacNeil Bros. Co. v. Cohen, 264 F. 2d 186 (CA1 1959).

The application is denied in all respects.

       Applicants initially moved before the Second Circuit for en banc consideration of their request for issuance of a certificate of necessity or transfer of the appeal to another circuit. That request was denied, with Chief Judge Kaufman and Judge Oakes not participating. No- application for a certificate of necessity was made to the Chief Judge. The motion was then set down for a hearing before a panel of the Second Circuit, and after some delay was heard by Judges Mansfield, Van Graafeiland, and Meskill. At the conclusion of oral argument, the motion was denied in an oral opinion delivered by Judge Mansfield, a transcript of which is in the record before me.

       Although applicants have specifically addressed this application to me as Circuit Justice for the Second Circuit, and have not requested my disqualification, I note that they do suggest that “any judges who sat on any of the appeals of the Rosenbergs would very likely conclude that they should disqualify themselves from the current appeal.” Application ¶ 11. I was a member of a Second Circuit panel, along with Judges Swan and Friendly, which denied postconviction relief to Rosenberg codefendant Morton Sobell. United States v. Sobell, 314 F. 2d 314 (CA2), cert. denied, 374 U. S. 857 (1963). Despite this, I will not disqualify myself from ruling on the instant application. I do not believe that my “impartiality” to decide the extent of a Circuit Justice's powers under §291 (a) “might reasonably be questioned,” 28 U. S. C. §455 (a) (1970 ed., Supp. V), in light of this participation in a case not related to the present action.

       Section 291 (a) provides:
      “The Chief Justice of the United States may designate and assign temporarily any circuit judge to act as circuit judge in another circuit upon ■ presentation of a certificate of necessity by the chief judge or circuit justice of the circuit where the need arises.”


author: Mr. Justice Rehnquist, Circuit Justice.

text:
    HOUCHINS, SHERIFF OF THE COUNTY OF ALAMEDA, CALIFORNIA v. KQED, INC., et al.
    No. A-594.
    Decided February 1, 1977
   Mr. Justice Rehnquist, Circuit Justice.

Applicant Houchins is the Sheriff of Alameda County in the State of California and in that capacity controls access of the press and public to the Alameda County jail. Respondents KQED, Inc., a nonprofit educational television-radio station, and the Alameda and Oakland branches of the NAACP, sued applicant in the United States District Court for the Northern District of California in order to obtain an injunction granting KQED personnel access to the Alameda County jail at Santa Rita. The District Court granted respondents a preliminary injunction on November 20, 1975, which restrained applicant

“from excluding as a matter of general policy plaintiff KQED and responsible representatives of the news media from the Alameda County Jail facilities at Santa Rita, including the Greystone portion thereof, or from preventing KQED and responsible representatives of the news media from providing full and accurate coverage of the conditions prevailing therein.
“. . . [Fjrom denying KQED news personnel and responsible representatives of the news media access to the Santa Rita facilities, including Greystone, at reasonable times and hours.
“. . . [Fjrom preventing KQED news personnel and responsible representatives of the news media from utilizing photographic and sound equipment or from utilizing inmate interviews in providing full and accurate coverage of the Santa Rita facilities.
“. . . [Applicant] may, in his discretion, deny KQED and responsible representatives of the news media access to the Santa Rita facilities for the duration of those limited periods when tensions in the jail make such media access dangerous.”

Applicant sought a stay of this order in the Court of Appeals for the Ninth Circuit, and a two-judge panel of the court granted the stay on December 24, 1975, observing:

“[T]he injunction appears to exceed the requirements of the First Amendment as interpreted in Pell v. Procunier, 417 U. S. 817 (1974) and Saxbe v. Washington Post Co., 417 U. S. 843 (1974). Should the injunction be modified by the District Court, this Court will entertain a motion to lift the stay.”

Applicant’s appeal was thereafter heard by a different panel of the Court of Appeals which affirmed the order of the District Court. Applicant filed a petition for rehearing and suggestion for rehearing en banc, and a motion for stay of mandate, all of which were denied. He now requests that I stay the injunction pending the filing and disposition of a petition for certiorari to review the judgment of the Court of Appeals. For the reasons set forth below, I grant his application.

The dispute between the parties centers upon questions of law, rather than of fact. The principal dispute involves the interpretation of our opinion in Pell v. Procunier, 417 U. S. 817 (1974). Applicant would urge that we reach the same result in this case as we did in Saxbe v. Washington Post Co., 417 U. S. 843, 850 (1974):

“We find this case constitutionally indistinguishable from Pell v. Procunier, ante, p. 817, and thus fully controlled by the holding in that case. ‘[NJewsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.’ Id., at 834.”

Respondents, on the other hand, rely upon the Court’s observation at the outset of the opinion in Pell that the prison regulation there involved was

“not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press’ investigation and reporting of those conditions. Indeed, the record demonstrates that, under current corrections policy, both the press and the general public are accorded full opportunities to observe prison conditions. ... In short, members of the press enjoy access to California prisons that is not available to other members of the public.” Pell, supra, at 830-831. (Footnote omitted.)

Concededly the access of the public and the press to the Alameda County jail is less than was their access to the California prisons in Pell. Public access to the Alameda County jail at Santa Rita presently consists of monthly public tours which, in the words of the Court of Appeals, “were limited to 25 people, booked months in advance, prohibited use of cameras or sound equipment, prohibited conversations with inmates, and omitted views of many parts of the jail, including the notorious Greystone Building.” Here the injunction did grant to the press greater access to the jail than the public is granted, a result seemingly inconsistent with our holding in Pell that the press is not entitled to greater access. But respondents suggest that the access given to the press in this case by the injunction may, as a factual matter, not significantly exceed that given to the press in Pell before the injunction and after our disposition of that case.

The Court of Appeals struggled with the resolution of this issue. Judges Chambers and Sneed, in granting the stay before argument, felt that the injunction went beyond that which we countenanced in Pell. The panel that decided the issue on the merits unanimously affirmed the District Court, but each member of the panel wrote separately. In discussing the injunction, which he felt clearly granted the press greater access than is granted to the public, Judge Duniway, in his concurring opinion, was moved to conclude:

“I cannot reconcile this result [the injunction] with the decisions in Pell, supra, and Washington Post, supra.546 F. 2d 284, 294 (CA9 1976).

Judge Hufstedler, concurring specially, viewed the reconciliation of the injunction in this case with the holdings in Pell and Washington Post as a “thorny question.” Id., at 19.

The legal issue to be raised by applicant’s petition for certiorari seems quite clear. If the “no greater access” doctrine of Pell and Saxbe applies to this case, the Court of Appeals and the District Court were wrong, and the injunction was an abuse of discretion. If, on the other hand, the holding in Pell is to be viewed as impliedly limited to the situation where there already existed substantial press and public access to the prison, then Pell and Saxbe are not necessarily dispositive, and review by this Court of the propriety of the injunction, in light of those cases, would be appropriate, although not necessary. In my opinion at least four Justices of this Court would vote to grant certiorari to resolve this issue, if for no other reason than that departure from unequivocal language in one of our opinions which on its face appears to govern the question ought to be undertaken in the first instance by this Court, rather than by the Court of Appeals or by the District Court.

Of course, I accord due deference to the judges of the Ninth Circuit who declined to grant the stay. See Winters v. United States, 89 S. Ct. 57, 21 L. Ed. 2d 80 (1968) (Douglas, J., in chambers). But such deference does not relieve me of the obligation to decide the issue:

“Although a judge of the panel which entered this order refused to grant a stay, I would nevertheless stay the order if persuaded by the record that the questions presented for review in the petition for certiorari had sufficient merit to make review by this Court likely.” Board of School Comm’rs of Mobile County v. Davis, 84 S. Ct. 10, 11, 11 L. Ed. 2d 26, 27 (1963) (Black, J., in chambers).

For the reasons set forth above, I think that the issue in this case is of sufficient importance to surmount the threshold barrier confronting all stay applications: reasonable likelihood that the petition for certiorari will be granted. E. g., English v. Cunningham, 80 S. Ct. 18, 4 L. Ed. 2d 42 (1959) (Frankfurter, J., in chambers).

Respondents suggest that, regardless of the correctness of the decision below, the equities do not favor the applicant, and that it is they, the respondents, who will suffer the irreparable injury should a stay be granted. Respondents contend that they are irreparably injured each time they are denied news coverage; applicant suggests that in the District Court hearing “there was uncontradicted evidence that jail operations come to a virtual standstill in the presence of a media tour.” Respondents’ intimation that the interim denial of their access to the prison, in violation of their asserted First and Fourteenth Amendment rights, will inexorably injure them in a way that applicant cannot be injured by the injunctive restraint — which he asserts is based on a misapprehension of the Constitution — is one with which I cannot agree. There are equities on both sides of the case.

I would be more hesitant to disturb the District Court's preliminary injunction if it were evident that the injunction were actually “preliminary'' to substantial further proceedings which might substantially modify that injunction. But the injunction was issued some 15 months ago, after a full evidentiary hearing, and none of the parties suggests that there are any new factual or legal issues which would cause the District Court to modify it. The injunction has in fact been stayed virtually since its issuance, and I conclude that, in light of the present posture of the case and given the substantial chance that the petition for certiorari will be granted, the preservation of that status quo is an important factor favoring a stay. This is preferable to forcing the applicant to develop new procedures which might be required only for a short period of time. See Edelman v. Jordan, 414 U. S. 1301, 1303 (1973) (Rehnquist, J., in chambers).

The preliminary injunction issued by the District Court in this case on November 20, 1975, should therefore be and hereby is stayed pending the filing of a timely petition, for certiorari by applicant, and the disposition of the petition and the case by this Court.

       See 546 F. 2d 284, 294 (CA9 1976) (Duniway, J., concurring).

       See Saxbe v. Washington Post Co., 417 U. S., at 850.


text:
    MARSHALL, SECRETARY OF LABOR v. BARLOW'S, INC.
    No. A-600.
    Decided February 3, 1977
   Me. Justice Rehnquist, Circuit Justice.

The Solicitor General, on behalf of the Secretary of Labor, applies for a partial stay of an injunction issued by a three-judge District Court for the District of Idaho. That court held that § 8 (a) of the Occupational Safety and Health Act of 1970, 84 Stat. 1598, 29 U. S. C. § 657 (a), allowing warrantless entry and inspection of work places for OSHA violations, is in conflict with the Fourth Amendment of the United States Constitution, and enjoined further searches by the Secretary’s representative pursuant to that section. The applicant does not seek a stay of the order insofar as it protects the respondent from future searches, but only as it protects persons not party to this suit. On January 25, 1977, I granted a stay of the order to the extent that the order restrains the applicant’s conduct outside of the District of Idaho.

Upon consideration of the response subsequently filed, I now grant in full the applicant’s request for a stay of the three-judge court order as it affects persons other than the respondent. On the merits of the Fourth Amendment question, the District Court relied on our decisions in Camara v. Municipal Court, 387 U. S. 523 (1967), and See v. City of Seattle, 387 U. S. 541 (1967). The applicant relies on our decisions in Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970), and United States v. Biswell, 406 U. S. 311 (1972), to urge a contrary result. The proposed stay will not affect the respondent in any way, and there are no equities weighing against it which may be asserted by persons actually before the Court. In such ’a situation, where the decision of the District Court has invalidated a part of an Act of Congress, "I think that the Act of Congress, presumptively constitutional as are all such Acts, should remain in effect pending a final decision on the merits by this Court.

The Secretary’s application for a stay is accordingly granted pending the timely filing of a notice of appeal and jurisdictional statement, and the disposition of the same by this Court.