author: Mr. Justice Rehnquist Mr. Justice Powell, Mr. Justice Brennan, Mr. Justice Blackmun,

text:
    SCOTT v. ILLINOIS
    No. 77-1177.
    Argued December 4, 1978
    Decided March 5, 1979
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Powell, JJ., joined. Powell, J., filed a concurring opinion, post, p. 374. Brennan, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 375. Blackmun, J., filed a dissenting opinion, post, p. 389.

      John S. Elson argued the cause and filed briefs for petitioner.

      Gem Papushkewych, Assistant Attorney General of Illinois, argued the cause for respondent. With her on the brief were
      William J. Scott, Attorney General, and Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General.

        Howard B. Eisenberg filed a brief for the National Legal Aid and Defender Assn, as amicus curiae urging reversal.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

We granted certiorari in this case to resolve a conflict among state and lower federal courts regarding the proper application of our decision in Argersinger v. Hamlin, 407 U. S. 25 (1972). 436 U. S. 925. Petitioner Scott was convicted of theft and fined $50 after a bench trial in the Circuit Court of Cook County, Ill. His conviction was affirmed by the state intermediate appellate court and then by the Supreme Court of Illinois, over Scott's contention that the Sixth and Fourteenth Amendments to the United States Constitution required that Illinois provide trial counsel to him at its expense.

Petitioner Scott was convicted of shoplifting merchandise valued at less than $150. The applicable Illinois statute set the maximum penalty for such an offense at a $500 fine or one year in jail, or both. The petitioner argues that a line of this Court’s cases culminating in Argersinger v. Hamlin, supra, requires state provision of counsel whenever imprisonment is an authorized penalty.

The Supreme Court of Illinois rejected this contention, quoting the following language from Argersinger:

“We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” 407 U. S., at 37.
“Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.” Id., at 40.

The Supreme Court of Illinois went on to state that it was “not inclined to extend Argersinger” to the case where a defendant is charged with a statutory offense for which imprisonment upon conviction is authorized but not actually imposed upon the defendant. 68 Ill. 2d 260, 272, 360 N. E. 2d 881, 882 (1077). We agree with the Supreme Court of Illinois that the Federal Constitution does not require a state trial court to appoint counsel for a criminal defendant such as petitioner, and we therefore affirm its judgment.

In his petition for certiorari, petitioner referred to the issue in this case as “the question left open in Argersinger v. Hamlin, 407 U. S. 25 (1072).” Pet. for Cert. 5. Whether this question was indeed “left open” in Argersinger depends upon whether one considers that opinion to be a point in a moving line or a holding that the States are required to go only so far in furnishing counsel to indigent defendants. The Supreme Court of Illinois, in quoting the above language from Argersinger, clearly viewed the latter as Argersinger’s holding. Additional support for this proposition may be derived from the concluding paragraph of the opinion in that case:

“The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary where one’s liberty is in jeopardy.” 407 U. S., at 40.

Petitioner, on the other hand, refers to language in the Court’s opinion, responding to the opinion of Mr. Justice Powell, which states that the Court “need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved . . . for here petitioner was in fact sentenced to jail.” Id., at 37.

There is considerable doubt that the Sixth Amendment itself, as originally drafted by the Framers of the Bill of Rights, contemplated any guarantee other than the right of an accused in a criminal prosecution in a federal court to employ a lawyer to assist in his defense. W. Beaney, The Right to Counsel in American Courts 27-30 (1955). In Powell v. Alabama, 287 U. S. 45 (1932), the Court held that Alabama was obligated to appoint counsel for the Scottsboro defendants, phrasing the inquiry as “whether the defendants were in substance denied the right of counsel, and if so, whether such denial infringes the due process clause of the Fourteenth Amendment.” Id., at 52. It concluded its opinion with the following language:

“The United States by statute and every state in the Union by express provision of law, or by the determination of its courts, make it the duty of the trial judge, where the accused is unable to employ counsel, to appoint counsel for him. In most states the rule applies broadly to all criminal prosecutions, in others it is limited to the more serious crimes, and in a very limited number, to capital cases. A rule adopted with such unanimous accord reflects, if it does not establish, the inherent right to have counsel appointed, at least in cases like the present, and lends convincing support to the conclusion we have reached as to the fundamental nature of that right." Id., at 73.

Betts v. Brady, 316 U. S. 455 (1942), held that not every indigent defendant accused in a state criminal prosecution was entitled to appointment of counsel. A determination had to be made in each individual case whether failure to appoint counsel was a denial of fundamental fairness. Betts was in turn overruled in Gideon v. Wainwright, 372 U. S. 335 (1963). In Gideon, Betts was described as holding “that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment . . . .” 372 U. S., at 339.

Several Terms later the Court held in Duncan v. Louisiana, 391 U. S. 145 (1968), that the right to jury trial in federal court guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth Amendment. The Court held, however: “It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses . . . .” Id., at 159 (footnote omitted). In Baldwin v. New York, 399 U. S. 66, 69 (1970), the controlling opinion of Mr. Justice White concluded that “no offense can be deemed 'petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.”

In Argersinger the State of Florida urged that a similar dichotomy be employed in the right-to-counsel area: Any offense punishable by less than six months in jail should not require appointment of counsel for an indigent defendant. The Argersinger Court rejected this analogy, however, observing that “the right to trial by jury has a different genealogy and is brigaded with a system of trial to a judge alone.” 407 U. S., at 29.

The number of separate opinions in Gideon, Duncan, Baldwin, and Argersinger, suggests that constitutional line drawing becomes more difficult as the reach of the Constitution is extended further, and as efforts are made to transpose lines from one area of Sixth Amendment jurisprudence to another. The process of incorporation creates special difficulties, for the state and federal contexts are often different and application of the same principle may have ramifications distinct in degree and kind. The range of human conduct regulated by state criminal laws is much broader than that of the federal criminal laws, particularly on the “petty” offense part of the spectrum. As a matter of constitutional adjudication, we are, therefore, less willing to extrapolate an already extended line when, although the general nature of the principle sought to be applied is clear, its precise limits and their ramifications become less so. We have now in our decided cases departed from the literal meaning of the Sixth Amendment. And we cannot fall back on the common law as it existed prior to the enactment of that Amendment, since it perversely gave less in the way of right to counsel to accused felons than to those accused of misdemeanors. See Powell v. Alabama, supra, at 60.

In Argersinger the Court rejected arguments that social cost or a lack of available lawyers militated against its holding, in some part because it thought these arguments were factually incorrect. 407 U. S., at 37 n. 7. But they were rejected in much larger part because of the Court’s conclusion that incarceration was so severe a sanction that it should not be imposed as a result of a criminal trial unless an indigent defendant had been offered appointed counsel to assist in his defense, regardless of the cost to the States implicit in such a rule. The Court in its opinion repeatedly referred to trials “where an accused is deprived of his liberty,” id., at 32, and to “a case that actually leads to imprisonment even for a brief period,” id., at 33. The Chief Justice in his opinion concurring in the result also observed that “any deprivation of liberty is a serious matter.” Id., at 41.

Although the intentions of the Argersinger Court are not unmistakably clear from its opinion, we conclude today that Argersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings. Even were the matter res nova, we believe that the central premise of Argersinger — that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment— is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. Argersinger has proved reasonably workable, whereas any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States. We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. The judgment of the Supreme Court of Illinois is accordingly

Affirmed.

Mr. Justice Powell,

concurring.

For the reasons stated in my opinion in Argersinger v. Hamlin, 407 U. S. 25, 44 (1972), I do not think the rule adopted by the Court in that case is required by the Constitution. Moreover, the drawing of a line based on whether there is imprisonment (even for overnight) can have the practical effect of precluding provision of counsel in other types of cases in which conviction can have more serious consequences. The Argersinger rule also tends to impair the proper functioning of the criminal justice system in that trial judges, in advance of hearing any evidence and before knowing anything about the case except the charge, all too often will be compelled to forgo the legislatively granted option to impose a sentence of imprisonment upon conviction. Preserving this option by providing counsel often will be impossible or impracticable — particularly in congested urban courts where scores of cases are heard in a single sitting, and in small and rural communities where lawyers may not be available.

Despite my continuing reservations about the Argersinger rule, it was approved by the Court in the 1972 opinion and four Justices have reaffirmed it today. It is important that this Court provide clear guidance to the hundreds of courts across the country that confront this problem daily. Accordingly, and mindful of stare decisis, I join the opinion of the Court. I do so, however, with the hope that in due time a majority will recognize that a more flexible rule is consistent with due process and will better serve the cause of justice.

Mr. Justice Brennan,

with whom Mr. Justice Marshall and Mr. Justice Stevens join, dissenting.

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” (Emphasis supplied.) Gideon v. Wainwright, 372 U. S. 335 (1963), extended the Sixth Amendment right to counsel to the States through the Fourteenth Amendment and held that the right includes the right of the indigent to have counsel provided. Argersinger v. Hamlin, 407 U. S. 25 (1972), held that the right recognized in Gideon extends to the trial of any offense for which a convicted defendant is likely to be incarcerated.

This case presents the question whether the right to counsel extends to a person accused of an offense that, although punishable by incarceration, is actually punished only by a fine. Petitioner Aubrey Scott was charged with theft in violation of Ill. Rev. Stat., ch. 38, § 16-1 (1969), an offense punishable by imprisonment for up to one year or by a fine of up to $500, or by both. About four months before Argersinger was decided, Scott had a bench trial, without counsel, and without notice of entitlement to retain counsel or, if indigent, to have counsel provided. He was found guilty as charged and sentenced to pay a $50 fine.

The Court, in an opinion that at best ignores the basic principles of prior decisions, affirms Scott’s conviction without counsel because he was sentenced only to pay a fine. In my view, the plain wording of the Sixth Amendment and the Court’s precedents compel the conclusion that Scott’s uncounseled conviction violated the Sixth and Fourteenth Amendments and should be reversed.

I

The Court’s opinion intimates that the Court’s precedents ordaining the right to appointed counsel for indigent accuseds in state criminal proceedings fail to provide a principled basis for deciding this case. That is demonstrably not so. The principles developed in the relevant precedents are clear and sound. The Court simply chooses to ignore them.

Gideon v. Wainwright held that, because representation by counsel in a criminal proceeding is “fundamental and essential to a fair trial,” 372 U. S., at 342, the Sixth Amendment right to counsel was applicable to the States through the Fourteenth Amendment:

“[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” Id., at 344.

Earlier precedents had recognized that the assistance of appointed counsel was critical, not only to equalize the sides in an adversary criminal process, but also to give substance to other constitutional and procedural protections afforded criminal defendants. Gideon established the right to appointed counsel for indigent accuseds as a categorical requirement, making the Court’s former case-by-case due process analysis, cf. Betts v. Brady, 316 U. S. 455 (1942), unnecessary in cases covered by its holding. Gideon involved a felony prosecution, but that fact was not crucial to the decision ; its reasoning extended, in the words of the Sixth Amendment, to “all criminal prosecutions.”

Argersinger v. Hamlin took a cautious approach toward implementing the logical consequences of Gideon’s rationale. The petitioner in Argersinger had been sentenced to jail for 90 days after conviction — at a trial without counsel — of carrying a concealed weapon, a Florida offense carrying an authorized penalty of imprisonment for up to six months and a fine of up to $1,000. The State, relying on Duncan v. Louisiana, 391 U. S. 145 (1968), and Baldwin v. New York, 399 U. S. 66 (1970), urged that the Sixth Amendment right to counsel, like the right to jury trial, should not apply to accuseds charged with “petty” offenses punishable by less than six months’ imprisonment. But Argersinger refused to extend the “petty” offense limitation to the right to counsel. The Court pointed out that the limitation was contrary to the express words of the Sixth Amendment, which guarantee its enumerated rights “[i]n all criminal prosecutions”; that the right to jury trial was the only Sixth Amendment right applicable to the States that had been held inapplicable to “petty offenses”; that this limitation had been based on historical considerations peculiar to the right to jury trial; and that the right to counsel was more fundamentally related to the fairness of criminal prosecutions than the right to jury trial and was in fact essential to the meaningful exercise of other Sixth Amendment protections.

Although its analysis, like that in Gideon and other earlier cases, suggested that the Sixth Amendment right to counsel should apply to all state criminal prosecutions, Argersinger held only that an indigent defendant is entitled to appointed counsel, even in petty offenses punishable by six months of incarceration or less, if he is likely to be sentenced to incarceration for any time if convicted. The question of the right to counsel in cases in which incarceration was authorized but would not be imposed was expressly reserved.

II

In my view petitioner could prevail in this case without extending the right to counsel beyond what was assumed to exist in Argersinger. Neither party in that case questioned the existence of the right to counsel in trials involving “non-petty” offenses punishable by more than six months in jail. The question the Court addressed was whether the right applied to some “petty” offenses to which the right to jury trial did not extend. The Court's reasoning in applying the right to counsel in the case before it — that the right to counsel is more fundamental to a fair proceeding than the right to jury trial and that the historical limitations on the jury trial right are irrelevant to the right to counsel — certainly cannot support a standard for the right to counsel that is more restrictive than the standard for granting a right to jury trial. As my Brother Powell commented in his opinion concurring in the result in Argersinger, 407 U. S., at 45-46: “It is clear that wherever the right-to-counsel line is to be drawn, it must be drawn so that an indigent has a right to appointed counsel in all cases in which there is a due process right to a jury trial.” Argersinger thus established a “two dimensional” test for the right to counsel: the right attaches to any “nonpetty” offense punishable by more than six months in jail and in addition to any offense where actual incarceration is likely regardless of the maximum authorized penalty. See Duke, The Right to Appointed Counsel: Argersinger and Beyond, 12 Am. Crim. L. Rev. 601 (1975).

The offense of “theft” with which Scott was charged is certainly not a “petty” one. It is punishable by a sentence of up to one year in jail. Unlike many traffic or other “regulatory” offenses, it carries the moral stigma associated with common-law crimes traditionally recognized as indicative of moral depravity. The State indicated at oral argument that the services of a professional prosecutor were considered essential to the prosecution of this offense. Tr. of Oral Arg. 39; cf. Argersinger v. Hamlin, 407 U. S., at 49 (Powell, J., concurring in result). Likewise, nonindigent defendants charged with this offense would be well advised to hire the “best lawyers they can get.” Scott’s right to the assistance of appointed counsel is thus plainly mandated by the logic of the Court’s prior cases, including Argersinger itself.

Ill

But rather than decide consonant with the assumption in regard to nonpetty offenses that was both implicit and explicit in Argersinger, the Court today retreats to the indefensible position that the Argersinger "actual imprisonment” standard is the only test for determining the boundary of the Sixth Amendment right to appointed counsel in state misdemeanor cases, thus necessarily deciding that in many cases (such as this one) a defendant will have no right to appointed counsel even when he has a constitutional right to a jury trial. This is simply an intolerable result. Not only is the “actual imprisonment” standard unprecedented as the exclusive test, but also the problems inherent in its application demonstrate the superiority of an “authorized imprisonment” standard that would require the appointment of counsel for indigents accused of any offense for which imprisonment for any time is authorized.

First, the “authorized imprisonment” standard more faithfully implements the principles of the Sixth Amendment identified in Gideon. The procedural rules established by state statutes are geared to the nature of the potential penalty for an offense, not to the actual penalty imposed in particular cases. The authorized penalty is also a better predictor of the stigma and other collateral consequences that attach to conviction of an offense. With the exception of Argersinger, authorized penalties have been used consistently by this Court as the true measures of the seriousness of offenses. See, e. g., Baldwin v. New York, 399 U. S., at 68-70; Frank v. United States, 395 U. S. 147, 149 (1969); United States v. Moreland, 258 U. S. 433 (1922). Imprisonment is a sanction particularly associated with criminal offenses; trials of offenses punishable by imprisonment accordingly possess the characteristics found by Gideon to require the appointment of counsel. By contrast, the “actual imprisonment” standard, as the Court’s opinion in this case demonstrates, denies the right to counsel in criminal prosecutions to accuseds who suffer the severe consequences of prosecution other than imprisonment.

Second, the “authorized imprisonment” test presents no problems of administration. It avoids the necessity for time-consuming consideration of the likely sentence in each individual case before trial and the attendant problems of inaccurate predictions, unequal treatment, and apparent and actual bias. These problems with the “actual imprisonment” standard were suggested in my Brother Powell’s concurrence in Argersinger, 407 U. S., at 52-55, which was echoed in scholarly criticism of that decision. Petitioner emphasizes these defects, arguing with considerable force that implementation of the “actual imprisonment” standard must assuredly lead to violations of both the Due Process and Equal Protection Clauses of the Constitution. Brief for Petitioner 47-59.

Finally, the “authorized imprisonment” test ensures that courts will not abrogate legislative judgments concerning the appropriate range of penalties to be considered for each offense. Under the “actual imprisonment” standard,

“[t]he judge will ... be forced to decide in advance of trial — and without hearing the evidence — whether he will forgo entirely his judicial discretion to impose some sentence of imprisonment and abandon his responsibility to consider the full range of punishments established by the legislature. His alternatives, assuming the availability of counsel, will be to appoint counsel and retain the discretion vested in him by law, or to abandon this discretion in advance and proceed without counsel.” Argersinger v. Hamlin, supra, at 53 (Powell, J., concurring in result).

The “authorized imprisonment” standard, on the other hand, respects the allocation of functions between legislatures and courts in the administration of the criminal justice system.

The apparent reason for the Court’s adoption of the “actual imprisonment” standard for all misdemeanors is concern for the economic burden that an “authorized imprisonment” standard might place on the States. But, with all respect, that concern is both irrelevant and speculative.

This Court’s role in enforcing constitutional guarantees for criminal defendants cannot be made dependent on the budgetary decisions of state governments. A unanimous Court made that clear in Mayer v. Chicago, 404 U. S. 189, 196-197 (1971), in rejecting a proposed fiscal justification for providing free transcripts for appeals only when the appellant was subject to imprisonment:

“This argument misconceives the principle of Griffin [v. Illinois, 351 U. S. 12 (1956)] .... Griffin does not represent a balance between the needs of the accused and the interests of society; its principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way. The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed. The State’s fiscal interest is, therefore, irrelevant.”

In any event, the extent of the alleged burden on the States is, as the Court admits, ante, at 373-374, n. 5, speculative. Although more persons are charged with misdemeanors punishable by incarceration than are charged with felonies, a smaller percentage of persons charged with misdemeanors qualify as indigent, and misdemeanor cases as a rule require far less attorney time.

Furthermore, public defender systems have proved economically feasible, and the establishment of such systems to replace appointment of private attorneys can keep costs at acceptable levels even when the number of cases requiring appointment of counsel increases dramatically. The public defender system alternative also answers the argument that an “authorized imprisonment” standard would clog the courts with inexperienced appointed counsel.

Perhaps the strongest refutation of respondent’s alarmist prophecies that an “authorized imprisonment” standard would wreak havoc on the States is that the standard has not produced that result in the substantial number of States that already provide counsel in all cases where imprisonment is authorized — States that include a large majority of the country’s population and a great diversity of urban and rural environments. Moreover, of those States that do not yet provide counsel in all cases where any imprisonment is authorized, many provide counsel when periods of imprisonment longer than 30 days, 3 months, or 6 months are authorized. In fact, Scott would be entitled to appointed counsel under the current laws of at least 33 States.

It may well be that adoption by this Court of an “authorized imprisonment” standard would lead state and local governments to re-examine their criminal statutes. A state legislature or local government might determine that it no longer desired to authorize incarceration for certain minor offenses in light of the expense of meeting the requirements of the Constitution. In my view this re-examination is long overdue. In any event, the Court’s “actual imprisonment” standard must inevitably lead the courts to make this re-examination, which plainly should more properly be a legislative responsibility.

IV

The Court’s opinion turns the reasoning of Argersinger on its head. It restricts the right to counsel, perhaps the most fundamental Sixth Amendment right, more narrowly than the admittedly less fundamental right to jury trial. The abstract pretext that “constitutional line drawing becomes more difficult as the reach of the Constitution is extended further, and as efforts are made to transpose lines from one area of Sixth Amendment jurisprudence to another,” ante, at 372, cannot camouflage the anomalous result the Court reaches. Today’s decision reminds one of Mr. Justice Black’s description of Betts v. Brady: “an anachronism when handed down” that “ma[kes] an abrupt break with its own well-considered precedents.” Gideon v. Wainwright, 372 U. S., at 345, 344.

Mr. Justice Blackmun,

dissenting.

For substantially the reasons stated by Mr. Justice Brennan in Parts I and II of his dissenting opinion, I would hold that the right to counsel secured by the Sixth and Fourteenth Amendments extends at least as far as the right to jury trial secured by those Amendments. Accordingly, I would hold that an indigent defendant in a state criminal case must be afforded appointed counsel whenever the defendant is prosecuted for a nonpetty criminal offense, that is, one punishable by more than six months’ imprisonment, see Duncan v. Louisiana, 391 U. S. 145 (1968); Baldwin v. New York, 399 U. S. 66 (1970), or whenever the defendant is convicted of an offense and is actually subjected to a term of imprisonment, Argersinger v. Hamlin, 407 U. S. 25 (1972).

This resolution, I feel, would provide the “bright line” that defendants, prosecutors, and trial and appellate courts all deserve and, at the same time, would reconcile on a principled basis the important considerations that led to the decisions in Duncan, Baldwin, and Argersinger.

On this approach, of course, the judgment of the Supreme Court of Illinois upholding petitioner Scott’s conviction should be reversed, since he was convicted of an offense for which he was constitutionally entitled to a jury trial. I, therefore, dissent.

       Compare, e. g., Potts v. Estelle, 529 F. 2d 450 (CA5 1976); State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 249 N. W. 2d 791 (1977), with Sweeten v. Sneddon, 463 F. 2d 713 (CA10 1972); Rollins v. State, 299 So. 2d 586 (Fla.), cert. denied, 419 U. S. 1009 (1974).

       Ill. Rev. Stat., ch. 38, § 16-1 (1969). The penalty provision of the statute, at the time in question, provided in relevant part:

        “A person first convicted of theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both. A person convicted of such theft a second or subsequent time, or after a prior conviction of any type of theft, shall be imprisoned in the penitentiary from one to 5 years. . . .”

       Brief for Respondent in Argersinger v. Hamlin, O. T. 1971, No. 70-5015, p. 12.

       We note that the line drawn in Argersinger was with full awareness of the various options. Both the petitioner in that case and the Legal Aid Society of New York, as amicus curiae, argued that the right to appointed counsel should pertain in any case in which imprisonment was an authorized penalty for the underlying offense. Brief for Petitioner in Argersinger v. Hamlin, O. T. 1971, No. 70-5015, p. 4; Brief for Legal Aid Society of New York as Amicus Curiae in Argersinger v. Hamlin 5-11. Respondent Florida and the amici States urged that the line be drawn as it had been in Baldwin for purposes of the jury trial guarantee. See, e. g., Brief for Respondent in Argersinger v. Hamlin 12. The Solicitor General argued for the standard that was finally adopted — that of actual imprisonment. Brief for United States as Amicus Curiae in Argersinger v. Hamlin 22-24.

       Unfortunately, extensive empirical work has not been done. That which exists suggests that the requirements of Argersinger have not proved to be unduly burdensome. See, e. g., Ingraham, The Impact of Argersinger—One Year Later, 8 Law & Soc. Rev. 615 (1974). That some jurisdictions have had difficulty implementing Argersinger is certainly not an argument for extending it. S. Krantz, C. Smith, D. Rossman, P. Froyd & J. Hoffman, Right to Counsel in Criminal Cases 1-18 (1976).

       Scott was found to be indigent at the time of his initial appeal, and an attorney was therefore appointed for him and he was provided a free transcript of his trial for use on the appeal. The Illinois courts and the parties have assumed his indigency at the time of trial for purposes of this case. See 68 Ill. 2d 269, 270-272, 369 N. E. 2d 881, 881-882 (1977); 36 Ill. App. 3d 304, 307-308, 343 N. E. 2d 517, 520 (1976).

       “[The Sixth Amendment] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.” Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938).

       “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, be is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.” Powell v. Alabama, 287 U. S. 45, 68-69 (1932).

         See Argersinger v. Hamlin, 407 U. S. 25, 31 (1972).

        “ It is simply not arguable, nor has any court ever held, that the trial of a petty offense may be held in secret, or without notice to the accused of the charges, or that in such cases the defendant has no right to confront his accusers or to compel the attendance of witnesses in his own behalf.’ ” Id., at 28, quoting Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash. L. Rev. 685, 705 (1968). Cf. In re Oliver, 333 U. S. 257 (1948) (right to a public trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confrontation); Klopfer v. North Carolina, 386 U. S. 213 (1967) (right to a speedy trial); Washington v. Texas, 388 U. S. 14 (1967) (right to compulsory process of witnesses); Groppi v. Wisconsin, 400 U. S. 505 (1971) (right to an impartial jury).

       “While there is historical support for limiting the 'deep commitment’ to trial by jury to 'serious criminal cases,’ there is no such support for a similar limitation on the right to assistance of counsel ....
      “The Sixth Amendment . . . extended the right to counsel beyond its common-law dimensions. But there is nothing in the language of the Amendment, its history, or in the decisions of this Court, to indicate that it was intended to embody a retraction of the right in petty offenses wherein the common law previously did require that counsel be provided.” Argersinger v. Hamlin, 407 U. S., at 30 (footnote and citations omitted).

         Id., at 31; see supra, at 377, and n. 3.

       “Mr. Justice Powell suggests that these problems [requiring the presence of counsel to insure the accused a fair trial] are raised even in situations where there is no prospect of imprisonment. . . . We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail.” 407 U. S., at 37.

       See, e. g., id., at 27, 30-31, 36, and n. 5; id., at 45, and n. 2, 63 (Powell, J., concurring in result).

       Because a theft conviction implies dishonesty, it may be a basis for impeaching petitioner’s testimony in a court proceeding. People v. Stufflebean, 24 Ill. App. 3d 1065, 1068-1169, 322 N. E. 2d 488, 491-492 (1974). Because jurors must be of “fair character” and “approved integrity,” Ill. Rev. Stat., ch. 78, §2 (1975), petitioner may be excluded from jury duty as a result of his theft conviction. Twelve occupations licensed under Illinois law and 23 occupations licensed under city of Chicago ordinances require the license applicant to have “good moral character” or some equivalent background qualification that could be found unsatisfied because of a theft conviction. See Chicago Council of Lawyers, Study of Licensing Restrictions on Ex-Offenders in the City of Chicago and the State of Illinois 8, A-17 (1975). Under federal law petitioner’s theft conviction would bar him from working in any capacity in a bank insured by the Federal Deposit Insurance Corporation, 12 U. S. C. § 1829, or possibly in any public or private employment requiring a security clearance. 32 CFR §§155.5 (h) and (i), and 156.7 (b) (1) (iii) (1977).

         Gideon v. Wainwright, 372 U. S. 335, 344 (1963); see Junker, supra n. 5, at 713-714.

       My Brother Powell’s concurrence in Argersinger, 407 U. S., at 44, joined by my Brother Rehnquist, also supports petitioner’s right to appointed counsel in this case. The concurrence explicitly stated that the right to counsel should extend at least as far as the right to jury trial, id., at 45-46, and its preference for a case-by-case approach was repeatedly limited to “petty” offenses. See, e. g., id., at 45, and n. 2, 47, 63. Even in petty offenses, the Argersinger concurrence would have mandated the following procedures:
      “The determination [whether counsel must be appointed] should be made before the accused formally pleads; many petty cases are resolved by guilty pleas in which the assistance of counsel may be required. If the trial court should conclude that the assistance of counsel is not required in any case, it should state its reasons so that the issue could be preserved for review.” Id., at 63.

       See n. 10, supra. The scope of collateral consequences that would be constitutionally permissible under the “actual imprisonment” standard remains unsettled, and this uncertainty is another source of confusion generated by this standard. See, e. g., Tr. of Oral Arg. 35-37; United States v. White, 529 F. 2d 1390 (CA8 1976); Note, Argersinger v. Hamlin and the Collateral Use of Prior Misdemeanor Convictions of Indigents Unrepresented by Counsel at Trial, 35 Ohio St. L. J. 168 (1974).

       See, e. g., S. Krantz, C. Smith, D. Rossman, P. Froyd & J. Hoffman, Right to Counsel in Criminal Cases: The Mandate of Argerdnger v. Hamlin 69-117 (1976); Duke, The Right to Appointed Counsel: Argerdnger and Beyond, 12 Am. Crim. L. Rev. 601 (1975).
      The case-by-case approach advocated by my Brother Powell in Argersinger has also been criticized as unworkable because of the administrative burden it would impose. See, e. g., Uniform Rules of Criminal Procedure, Rule 321 (b), Comment, 10 U. L. A. 69 (1974).

       See also Bounds v. Smith, 430 U. S. 817, 825 (1977).

       See Uniform Rules of Criminal Procedure, Rule 321 (b), Comment, 10 U. L. A. 70 (1974) (estimates that only 10% of misdemeanor defendants, as opposed to 60%-65% of felony defendants, meet the necessary indigency standard); National Legal Aid and Defender Assn., The Other Face of Justice, Note I, pp. 82-83 (1973) (survey indicates national average is 65% indigency in felony cases and only 47% in misdemeanor cases).
      The National Advisory Commission on Criminal Justice Standards and Goals adopted a maximum caseload standard of 150 felony cases or 400 misdemeanor cases per attorney per year. National Advisory Commission on Criminal Justice Standards and Goals, Courts, Standard 13.12, pp. 276-277 (1973). See also The Other Face of Justice, supra, Table 109, p. 73.

       A study conducted in the State of Wisconsin, which introduced a State Public Defender System after the Wisconsin Supreme Court in State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 249 N. W. 2d 791 (1977), extended the right to counsel in the way urged by petitioner in this case, indicated that the average cost of providing counsel in a misdemeanor case was reduced from $150-$200 to $90 by using a public defender rather than appointing private counsel. Brief for National Legal Aid and Defender Assn, as Amicus Curiae 10-12.

       See, e. g., Alaska: Alaska Const., Art. 1, §11; Alaska Stat. Ann. § 18.85.100 (1974) (any offense punishable by incarceration; or which may result in loss of valuable license or heavy fine); Alexander v. Anchorage, 490 P. 2d 910 (Alaska 1971); Arizona: Ariz. Rule Crim. Proc. 6.1 (b) (any criminal proceedings which may result in punishment by loss of liberty; or where the court concludes that the interest of justice so requires); California: Cal. Penal Code Ann. §987 (West Supp. 1978) (all criminal cases); Connecticut: Conn. Gen. Stat. §§ 51-296 (a), 51-297 (f) (1979) (all criminal actions); Delaware: Del. Code Ann., Tit. 29, §4602 (1974) (all indigents under arrest or charged with crime if defendant requests or court orders); Hawaii: Haw. Rev. Stat. § 802-1 (1976) (any offense punishable by confinement in jail); Indiana: Ind. Const., Art. I, § 13 (all criminal prosecutions); Bolkovac v. State, 229 Ind. 294, 98 N. E. 2d 250 (1951); Kentucky: Ky. Rule Crim. Proc. 8.04 (offenses punishable by a fine of more than $500 or by imprisonment); Louisiana: La. Code Crim. Proc., Art. 513 (West Supp. 1978) (offenses punishable by imprisonment); Massachusetts: Mass. Sup. Jud. Ct. Rule 3:10 (any crime for which sentence of imprisonment may be imposed); Minnesota: Minn. Stat. §§ 609.02, 611.14 (1978) (felonies and “gross misdemeanors”; statute defines “petty” misdemeanors as those not punishable by imprisonment or fine over $100); New Hampshire: N. H. Rev. Stat. Ann. §§ 604-A.-2, 625:9 (1974 and Supp. 1977) (offenses punishable by imprisonment); New Mexico: N. M. Stat. Ann. § 41-22A-12 (Supp. 1975) (offense carrying a possible sentence of imprisonment); New York: N. Y. Crim. Proc. Law § 170.10 (3) (McKinney 1971) (all misdemeanors except traffic violations) ; People v. Weinstock, 80 Misc. 2d 510, 363 N. Y. S. 2d 878 (1974) (traffic violations subject to possible imprisonment); Oklahoma: Okla. Stat., Tit. 22, § 464 (1969) (all criminal cases); Stewart v. State, 495 P. 2d 834 (Crim. App. 1972); Oregon: Brown v. Multnomah County Dist. Ct., 29 Ore. App. 917, 566 P. 2d 522 (1977) (all criminal cases); South Dakota: S. D. Comp. Laws Ann. § 23-2-1 (Supp. 1978) (any criminal action) ; Tennessee: Tenn. Code Ann. §§40-2002, 40-2003 (1975) (persons accused of any crime or misdemeanor whatsoever); Texas: Tex. Code Crim. Proc. Ann., Art. 26.04 (Vernon 1966) (any felony or misdemeanor punishable by imprisonment); Virginia: Va. Code §§ 19.2-157, 19.2-160 (Supp. 1978) (misdemeanors the penalty for which may be confinement in jail) ; Washington: Wash. Justice Court Crim. Rule 2.11 (a) (1) (all criminal offenses punishable by loss of liberty); West Virginia: W. Va. Code § 62-3-la (1977) (persons under indictment for a crime); Wisconsin: Wis. Const., Art. I, § 7; State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 249 N. W. 2d 791 (1977) (all offenses punishable by incarceration).
      Respondent claims that the statutes and case law in some of these States “need not be read as requiring appointment of counsel for all imprisonable eases.” Brief for Respondent 33 n. 28. Although the law is not unambiguous in every case, ambiguities in the laws of other States suggest that the list is perhaps too short, or at least that other States provide counsel in all but the most trivial offenses. E. g., Colorado: Colo. Rev. Stat. §21-1-103 (1973) (all misdemeanors and all municipal code violations at the discretion of the public defender); Georgia: Ga. Code § 27-3203 (1978) (any violation of a state law or local ordinance which may result in incarceraton); Missouri: Mo. Op. Atty. Gen. No. 207 (1963) (counsel should be appointed in misdemeanor cases of “more than minor significance” and “when prejudice might result”); Montana: Mont. Rev. Codes Ann. § 95-1001 (1969) (court may assign counsel in misdemeanors “in the interest of justice”); Nevada: Nev. Rev. Stat. § 178.397 (1977) (persons accused of “gross misdemeanors” or felonies); New Jersey: N. J. Stat. Ann. § 2A:158A-2 (West 1971); N. J. Crim. Rule 3:27-1 (any offense which is indictable); Pennsylvania: Pa. Rules Crim. Proc. 316 (a)-(c) (in all but “summary cases”); Wyoming: Wyo. Stat. §§7-1-110 (a) (entitled to appointed counsel in “serious crimes”), 7-1-108 (a) (v) (serious crimes are those for which incarceration is a “practical possibility”), 7-9-105 (all eases where accused shall or may be punished by imprisonment in penitentiary) (1977).
      In addition, Alabama, Florida, Georgia, and Mississippi were until today covered by the Fifth Circuit’s adoption of the “authorized imprisonment” standard. See Potts v. Estelle, 529 F. 2d 450 (CA5 1976); Thomas v. Savage, 513 F. 2d 536 (CA5 1975).
      Several States that have not adopted the “authorized imprisonment” standard give courts discretionary authority to appoint counsel in cases where it is perceived to be necessary (e. g., Maryland, Missouri, Montana, North Dakota, Ohio, and Pennsylvania).

       Iowa: Iowa Rules Crim. Proc. 2, § 3; 42, § 3.

       Maryland: Md. Ann. Code, Art. 27A, §§ 2 (f) and (h), 4 (1976); Mississippi: Miss. Code Ann. § 99-15-15 (1972).

       Idaho: Idaho Code § 19-851 (Supp. 1978); Mahler v. Birnbaum, 95 Idaho 14, 501 P. 2d 282 (1972); Maine: Newell v. State, 277 A. 2d 731 (1971); Ohio: Ohio Rules Crim. Proe. 2, 44 (A) and (B); Rhode Island: R. I. Rule Crim. Proc. 44 (Super. Ct.); R. I. Rule Crim. Proc. 44 (Dist. Ct.); State v. Holliday, 109 R. I. 93, 280 A. 2d 333 (1971); Utah: Utah Code Ann. § 77-64r-2 (1978); Salt Lake City Corp. v. Salt Lake County, 520 P. 2d 211 (1974).

       See nn. 18-21, supra. The actual figure may be closer to 40 States. The following States appear to be governed only by the “likelihood of imprisonment” standard: Arkansas: Ark. Rule Crim. Proc. 8.2 (b) (all criminal offenses except in misdemeanor cases where court determines that under no circumstances will conviction result in imprisonment); Florida: Fla. Rule Crim. Proc. 3.111 (b) (any misdemeanor or municipal ordinance violation unless prior written statement by judge that conviction will not result in imprisonment); North Carolina: N. C. Gen. Stat. § 7A-451 (a) (Supp. 1977) (any case in which imprisonment or a fine of $500 or more is likely to be adjudged); North Dakota: N. D. Rule Crim. Proc. 44 (all nonfelony cases unless magistrate determines that sentence upon conviction will not include imprisonment); Vermont: Vt. Stat. Ann., Tit. 13, §§ 5201, 5231 (1974 and Supp. 1977) (any misdemeanor punishable by any period of imprisonment or fine over $1,000 unless prior determination that imprisonment or fine over $1,000 will not be imposed). Two States require appointment of counsel for indigents in eases where it is “constitutionally required”: Alabama: Ala. Code §§ 15-12-1, 15-12-20 (1975); South Carolina: S. C. Code § 17-3-10 (Supp. 1977). Some States require counsel in misdemeanor cases only by virtue of judicial decisions reacting to Argersinger: Kansas: State v. Giddings, 216 Kan. 14, 531 P. 2d 445 (1975); Michigan: People v. Studaker, 387 Mich. 698, 199 N. W. 2d 177 (1972); People v. Harris, 45 Mich. App. 217, 206 N. W. 2d 478 (1973); Nebraska: Kovarik v. County of Banner, 192 Neb. 816, 224 N. W. 2d 761 (1975).

       See, e. g., Krantz et al., supra n. 14, at 445-606.

       “In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel.” Lakeside v. Oregon, 435 U. S. 333, 341 (1978).

       “[T]he interest protected by the right to have guilt or innocence determined by a jury- — tempering the possibly arbitrary and harsh exercise of prosecutorial and judicial power — while important, is not as fundamental to the guarantee of a fair trial as is the right to counsel.” Argersinger v. Hamlin, 407 U. S., at 46 (Powell, J., concurring in result) (footnotes omitted).


source: Caselaw Access Project

author: Me. Justice Stevens Mr. Justice Brennan, Mr. Justice Marshall, Mr. Justice Blackmun,

license: Public Domain

text:
    LAKE COUNTRY ESTATES, INC., et al. v. TAHOE REGIONAL PLANNING AGENCY et al.
    No. 77-1327.
    Argued December 4, 1978
    Decided March 5, 1979

      Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined, and in which Brennan, Marshall, and Blackmun, JJ., joined in part. Brennan, J., post, p. 406, and Marshall, J., post, p. 406, filed opinions dissenting in part. Blackmun, J., filed an opinion dissenting in part, in Part I of which Brennan, J., joined, post, p. 408.

      John J. Bartko argued the cause for petitioners. With him on the briefs were Gary H. Moore, James B. Lewis, John 8. Burd, and Joseph M. Lynn.

      Kenneth C. Rollston argued the cause and filed a brief for respondents Tahoe Regional Planning Agency et al. E. Clement Shute, Jr., Assistant Attorney General, argued the cause for respondent State of California. With him on the brief were Evelle J. Younger, Attorney General, and Leonard M.

      Sperry, Jr., Deputy Attorney General. Robert Frank List, Attorney General, and James H. Thompson, Chief Deputy Attorney General, filed a brief for respondent State of Nevada. Reginald Littrell filed a brief for respondents Henry et al.
   Me. Justice Stevens

delivered the opinion of the Court.

We granted certiorari to decide whether the Tahoe Regional Planning Agency, an entity created by Compact between California and Nevada, is entitled to the immunity that the Eleventh Amendment provides to the compacting States themselves. 436 U. S. 943. The case also presents the question whether the individual members of the Agency’s governing body are entitled to absolute immunity from federal damages claims when acting in a legislative capacity.

Lake Tahoe, a unique mountain lake, is located partly in California and partly in Nevada. The Lake Tahoe Basin, an area comprising 500 square miles, is a popular resort area that has grown rapidly in recent years.

In 1968, the States of California and Nevada agreed to create a single agency to coordinate and regulate development in the Basin and to conserve its natural resources. As required by the Constitution, in 1969 Congress gave its consent to the Compact, and the Tahoe Regional Planning Agency (TRPA) was organized. The Compact authorized TRPA to adopt and to enforce a regional plan for land use, transportation, conservation, recreation, and public services.

Petitioners own property in the Lake Tahoe Basin. In 1973, they filed a complaint in the United States District Court for the Eastern District of California alleging that TRPA, the individual members of its governing body, and its executive officer had adopted a land-use ordinance and general plan, and engaged in other conduct, that destroyed the economic value of petitioners’ property. Petitioners alleged that respondents had thereby taken their property without due process of law and without just compensation in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. They sought monetary and equitable relief.

Petitioners advanced alternative theories to support their federal claim. First, they asserted that the alleged violations of the Fifth and Fourteenth Amendments gave rise to an implied cause of action, comparable to the claim based on an alleged violation of the Fourth Amendment recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, and that jurisdiction could be predicated on 28 U. S. C. § 1331. Second, they claimed that respondents had acted under color of state law and therefore their cause of action was authorized by 42 U. S. C. § 1983 and jurisdiction was provided by 28 U. S. C. § 1343.

The District Court dismissed the complaint. Although it concluded that the complaint sufficiently alleged a cause of action for “inverse condemnation,” it held that such an action could not be brought against TRPA because that agency did not have the authority to condemn property. The court also held that the individual defendants were immune from liability for the exercise of the discretionary functions alleged in the complaint.

On appeal, the Court of Appeals for the Ninth Circuit affirmed the dismissal of TRPA, but reinstated the complaint against the individual respondents. 566 F. 2d 1353. Addressing first the questions of cause of action and jurisdiction, the Court of Appeals rejected petitioners' claims based on §§ 1983 and 1343. The court held that congressional approval had transformed the Compact between the States into federal law. As a result, the respondents were acting pursuant to federal authority, rather than under color of state law, and §§ 1983 and 1343 could not be invoked to provide a cause of action and federal jurisdiction. But the court accepted petitioners’ alternative argument: It held that they had alleged a deprivation of due process in violation of the Fifth and Fourteenth Amendments, that an implied remedy comparable to that upheld in Bivens, supra, was available, and that federal jurisdiction was provided by § 1331.

Having found a cause of action and a basis for federal jurisdiction, the court turned to the immunity questions. Although the point had not been argued, the Court of Appeals decided that the Eleventh Amendment immunized TRPA from suit in a federal court. With respect to the individual respondents, the Court of Appeals held that absolute immunity should be afforded for conduct of a legislative character and qualified immunity for executive action. Since the record did not adequately disclose whether the challenged conduct was legislative or executive, the court remanded for a hearing.

Petitioners ask this Court to hold that TRPA is not entitled to Eleventh Amendment immunity and that the individual respondents are not entitled to absolute immunity when acting in a legislative capacity. Because none of the respondents filed a cross-petition for certiorari, we have no occasion to review the Court of Appeals’ additional holding that a violation of the Due Process Clause was adequately alleged. For purposes of our decision, we assume the sufficiency of those allegations.

I

Before addressing the immunity issues, we must consider whether petitioners properly invoked the jurisdiction of a federal court. While respondents did not cross petition for certiorari, they now argue that the Bivens rationale does not apply to a claim based on the deprivation of property rather than liberty, and therefore the Court of Appeals' jurisdictional analysis was defective.

We do not normally address any issues other than those fairly comprised within the questions presented by the petition for certiorari and any cross-petitions. An exception to this rule is the question of jurisdiction: even if not raised by the parties, we cannot ignore the absence of federal jurisdiction. In this case, however, respondents’ attack on the Court of Appeals’ Bivens holding fails to support dismissal for want of jurisdiction for two reasons.

First, respondents’ “jurisdictional” arguments are not squarely directed at jurisdiction itself, but rather at the existence of a remedy for the alleged violation of their federal rights. Faced with a similar claim in Mt. Healthy Board of Ed. v. Doyle, 429 U. S. 274, we found that the cause-of-action argument was “not of the jurisdictional sort which the Court raises on its own motion.” Id., at 279. Since the petitioners in Mt. Healthy had “failed to preserve the issue whether the complaint stated a claim upon which relief could be granted,” id., at 281, the Court simply assumed, without deciding, that the suit could properly be brought.

Second, even if the lack of a cause of action were considered a jurisdictional defect in a suit brought under § 1331, we may not dismiss for that reason if the record discloses that federal jurisdiction does in fact exist. In this case, we need not even reach the Bivens question to conclude that there is both a cause of action and federal jurisdiction.

Section 1983 provides a remedy for individuals alleging deprivations of their constitutional rights by action taken “under color of state law.” The Court of Appeals incorrectly assumed that the requirement of federal approval of the interstate Compact foreclosed the possibility that the conduct of TRPA and its officers could be found to be “under color of state law” within the meaning of § 1983.

The Compact had its genesis in the actions of the compacting States, and it remains part of the statutory law of both States. The actual implementation of TRPA, after federal approval was obtained, depended upon the appointment of governing members and executives by the two States and their subdivisions and upon mandatory financing secured, by the terms of the Compact, from the counties. In discharging their duties as officials of TRPA, the state and county appointees necessarily have also served the interests of the political units that appointed them. The federal involvement, by contrast, is limited to the appointment of one nonvoting member to the governing board. While congressional consent to the original Compact was required, the States may confer additional powers and duties on TRPA without further congressional action. And each State retains an absolute right to withdraw from the Compact.

Even if it were not well settled that § 1983 must be given a liberal construction, these facts adequately characterize the alleged actions of the respondents as “under color of state law” within the meaning of that statute. Federal jurisdiction therefore rests on § 1343, and there is no need to address the question whether there is an implied remedy for violation of the Fifth or the Fourteenth Amendment.

II

The Court of Appeals held that California and Nevada had delegated authority ordinarily residing in each of those States to TRPA. Because “the bi-state Authority serves as an agency of the participant states, exercising a specially aggregated slice of state power,” the court concluded “that the TRPA is protected by sovereign immunity, preserved for the states by the Eleventh Amendment.” 566 F. 2d, at 1359-1360.

The reasoning of the Court of Appeals would extend Eleventh Amendment immunity to every bistate agency unless that immunity were expressly waived. TRPA argues that the propriety of this result is evidenced by the special constitutional requirement of congressional approval of any interstate compact. Any agency that is so important that it could not even be created by the States without a special Act of Congress should receive the same immunity that is accorded to the States themselves.

We cannot accept such an expansive reading of the Eleventh Amendment. By its terms, the protection afforded by that Amendment is only available to “one of the United States.” It is true, of course, that some agencies exercising state power have been permitted to invoke the Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself. But the Court has consistently refused to construe the Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a “slice of state power.”

If an interstate compact discloses that the compacting States created an agency comparable to a county or municipality, which has no Eleventh Amendment immunity, the Amendment should not be construed to immunize such an entity. Unless there is good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States themselves, and that Congress concurred in that purpose, there would appear to be no justification for reading additional meaning into the limited language of the Amendment.

California and Nevada have both filed briefs in this Court disclaiming any intent to confer immunity on TRPA. They point to provisions of their Compact that indicate that TRPA is to be regarded as a political subdivision rather than an arm of the State. Thus TRPA is described in Art. Ill (a) as a “separate legal entity” and in Art. VI (a) as a “political subdivision.” Under the terms of the Compact, 6 of the 10 governing members of TRPA are appointed by counties and cities, and only 4 by the 2 States.' Funding under the Compact must be provided by the counties, not the States. Finally, instead of the state treasury being directly responsible for judgments against TRPA, Art. VII (f) expressly provides that obligations of TRPA shall not be binding on either State.

The regulation of land use is traditionally a function performed by local governments. Concern with the proper performance of that function in the bistate area was a primary motivation for the creation of TRPA itself, and gave rise to the specific controversy at issue in this litigation. Moreover, while TRPA, like cities, towns, and counties, was originally created by the States, its authority to make rules within its jurisdiction is not subject to veto at the state level. Indeed, that TRPA is not in fact an arm of the State subject to its control is perhaps most forcefully demonstrated by the fact that California has resorted to litigation in an unsuccessful attempt to impose its will on TRPA.

The intentions of Nevada and California, the terms of the Compact, and the actual operation of TRPA make clear that nothing short of an absolute rule, such as that implicit in the holding of the Court of Appeals, would allow TRPA to claim the sovereign immunity provided by the Constitution to Nevada and California. Because the Eleventh Amendment prescribes no such rule, we hold that TRPA is subject to “the judicial power of the United States” within the meaning of that Amendment.

Ill

We turn, finally, to petitioners’ challenge to the Court of Appeals’ holding that the individual respondents are absolutely immune from federal damages liability for actions taken in their legislative capacities.

The immunity of legislators from civil suit for what they do or say as legislators has its roots in the parliamentary struggles of 16th- and 17th-century England; such immunity was consistently recognized in the common law and was taken as a matter of course by our Nation’s founders. In Tenney v. Brandhove, 341 U. S. 367, this Court reasoned that Congress, in enacting § 1983 as part of the Civil Rights Act of 1871, could not have intended “to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here.” 341 U. S., at 376. It therefore held that state legislators are absolutely immune from suit under § 1983 for actions “in the sphere of legitimate legislative activity.” 341 U. S., at 376.

Petitioners do not challenge the validity of the holding in Tenney, or of the decisions recognizing the absolute immunity of federal legislators. Rather, their claim is that absolute immunity should be limited to the federal and state levels, and should not extend to individuals acting in a legislative capacity at a regional level. In support of this proposed distinction, petitioners argue that the source of immunity for state legislators is found in constitutional provisions, such as the Speech or Debate Clause, which have no application to a body such as TRPA. In addition, they point out that because state legislatures have effective means of disciplining their members that TRPA does not have, the threat of possible personal liability is necessary to deter lawless conduct by the governing members of TRPA.

We find these arguments unpersuasive. The Speech or Debate Clause of the United States Constitution is no more applicable to the members of state legislatures than to the members of TRPA. The States are, of course, free to adopt similar clauses in their own constitutions, and many have in fact done so. These clauses reflect the central importance attached to legislative freedom in our Nation. But the absolute immunity for state legislators recognized in Tenney reflected the Court’s interpretation of federal law; the decision did not depend on the presence of a speech or debate clause in the constitution of any State, or on any particular set of state rules or procedures available to discipline erring legislators. Rather, the rule of that case recognizes the need for immunity to protect the “public good.” As Mr. Justice Frankfurter pointed out:

“Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned.” 341 U. S., at 377.

This reasoning is equally applicable to federal, state, and regional legislators. Whatever potential damages liability regional legislators may face as a matter of state law, we hold that petitioners’ federal claims do not encompass the recovery of damages from the members of TUPA acting in a legislative capacity.

Like the Court of Appeals, we are unable to determine from the record the extent to which petitioners seek to impose liability upon the individual respondents for the performance of their legislative duties. We agree, however, that to the extent the evidence discloses that these individuals were acting in a capacity comparable to that of members of a state legislature, they are entitled to absolute immunity from federal damages liability.

The judgment of the Court of Appeals is reversed in part and affirmed in part.

It is so ordered.

Mr. Justice Brennan,

dissenting in part.

I join Part I of Mr. Justice Blackmun’s opinion dissenting in part. In addition I would not reach the question, which the Court discusses in dicta, ante, at 401, whether compacting States can create an agency protected by Eleventh Amendment immunity. In all other respects I join the Court’s opinion.

Mr. Justice Marshall,

dissenting in part.

The Court today extends absolute immunity to nonelected regional officials for their legislative acts. Because extension of such extraordinary protection is without support in either precedent or policy, I cannot join Part III of the Court’s opinion.

In Tenney v. Brandhove, 341 U. S. 367 (1951), this Court declined to construe 42 U. S. C. § 1983 as abrogating state legislators’ unqualified immunity from suits that arise out of their legislative activity. Underlying the decision in Tenney was a recognition of the unique status of the legislative privilege, maintained for several centuries at common law and enshrined in the Federal Constitution, Art. I, § 6, as well as in all but seven of the States’ constitutions. 341 U. S., at 372-375. Absent evidence of explicit congressional intent, the Court was unwilling to strip state legislators of a protection so long enjoyed when there remained power in the voters to “discourag[e] or corree[t]” abuses by their elected representatives. Id., at 378.

Neither of the premises on which Tenney rested can sustain today’s holding. Immunity for appointed regional officials is without common-law antecedents or state constitutional status. Even the Compact does not purport to confer immunity on TRPA officials, and neither California nor Nevada has claimed any such intent in the briefs filed in the instant case. More significantly, none of TRPA’s 10-member governing board is elected. Six are appointed by county and city governments in the area, two are appointed by the Governors of California and Nevada respectively, and two are members by virtue of their offices in state natural resource agencies. Compact, Art. Ill (a). Thus, no member of the board is directly accountable to the public for his legislative acts. To cloak these officials with absolute protection where control by the electorate is so attenuated subverts the very system of checks and balances that the doctrine of legislative privilege was designed to secure. Insulating appointed officials from liability, no matter how egregious their “legislative” misconduct, is unlikely to enhance the integrity of the decisional process. Nor will public support for the outcome of such processes be fostered by a scheme placing these decision-makers beyond constitutional constraints.

Equally troubling is the majority’s refusal to confront the logical implications of its analysis. To be sure, the Court expressly reserves the question whether individuals performing legislative functions at the local level should be afforded absolute immunity from federal damages claims. Ante, at 404 n. 26. But the majority’s reasoning in this case leaves little room to argue that municipal legislators stand on a different footing than their regional counterparts. Surely the Court’s supposition that the “cost and inconvenience and distractions of a trial” will impede officials in the “ 'uninhibited discharge of their legislative duty/ ” ante, at 405, quoting Tenney v. Brandhove, supra, at 377, applies with equal force whether the officials occupy local or regional positions. Moreover, the Court implies that the test for conferring unqualified immunity is purely functional. Ante, at 405 n. 30. If the sole inquiry under that test is the nature of the officials’ responsibilities, see ibid., not the common-law and constitutional underpinnings of the privilege itself or the wisdom of extending it to nonelected officials, then presumably any appointed member of a municipal government can claim absolute protection for his legislative acts.

A doctrine that denies redress for constitutional wrongs should, in my judgment, be narrowly confined to those contexts where history and public policy compel its acceptance. Today’s decision both expands the scope of immunity beyond such limits and lays the groundwork for further extension.

I respectfully dissent.

Mr. Justice Blackmun,

with whom Mr. Justice Brennan joins as to Part I, dissenting in part.

I

I cannot conclude so easily, as the Court does, ante, at 405-406, that the members of TRPA are absolutely immune from liability from federal claims for what ultimately may be determined to be legislative acts. Nor do I know what the Court means by a “regional legislator” — other than its conclusion that members of TRPA are such — or where the line is now to be drawn between a “regional legislator” and a member of a public body somewhat farther down the scale of entities in our varied political structures.

It is difficult for me to associate the members of TRPA with federal or state legislators. Their duties are not solely legislative; they possess some executive powers. They are not in equipoise with other branches of government, and the concept of separation of powers has no relevance to them. They are not subject to the responsibility and the brake of the electoral process. And there is no provision for discipline within the body, as the Houses of Congress and the state legislatures possess.

I therefore am not now prepared to agree that the members of TRPA enjoy absolute immunity, against federal claims, for their “legislative” acts. I think they are entitled to qualified immunity within the limitations outlined in Scheuer v. Rhodes, 416 U. S. 232 (1974), and Butz v. Economou, 438 U. S. 478 (1978). Those cases, it seems to me, set forth the guidelines appropriate for this one, and I would follow them in the present context.

II

I also do not join the Court in its flat ruling, ante, at 404, that the Speech or Debate Clause of our Federal Constitution, Art. I, § 6, has no application to state legislatures. That may well be, but some federal courts have ruled otherwise, Eslinger v. Thomas, 476 F. 2d 225, 228 (CA4 1973) (holding the Clause to be applicable); In re Grand Jury Proceedings, 563 F. 2d 577, 582-583 (CA3 1977), and United States v. Gillock, 587 F. 2d 284, 286 (CA6 1978) (both recognizing a federal common-law speech or debate privilege for state legislators based in part on the federal Speech or Debate Clause), and the controversy on this point remains a live one. See United States v. Craig, 528 F. 2d 773, 776 (CA7), opinion on rehearing en banc, 537 F. 2d 957, cert. denied sub nom. Markert v. United States, 429 U. S. 999 (1976). Because the issue of application of the Clause to state legislatures (as distinguished from TRPA) is not presented here, I would not decide it with a passing fiat.

      See Edelman v. Jordan, 415 U. S. 651. The Eleventh Amendment provides:
      “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

       The Senate Report on the Compact describes the lake and its background as follows:
      “Lake Tahoe, a High Sierra Mountain lake, is famed for its scenic beauty and pristine clarity. Of recent geologic origin, the 190-square-mile lake bore little evidence of even natural aging processes when it was discovered by John Fremont in 1844. Because of its size, its 1,645-foot depth and its physical features, Lake Tahoe was able to resist pollution even when human activity began accelerating as a result of settlement and early logging operations. Even by 1962 its waters were still so transparent that a metal disc 20 centimeters in diameter reportedly could be seen at a depth of 136 feet and a light transmittance to a depth of nearly 500 feet as detected with hydrophotometer.
      “Only two other sizable lakes in the world are of comparable quality— Crater Lake in Oregon, which is protected as part of the Crater Lake National Park, and Lake Baikal in the Soviet Union. Only Lake Tahoe, however, is so readily accessible from large metropolitan centers and is so adaptable to urban development.” S. Rep. No. 91-510, pp. 3-4 (1969).

       Article I, § 10, cl. 3, of the Constitution provides:
      “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

       See Tahoe Regional Planning Compact, 83 Stat. 360, Cal. Gov’t Code Ann. §§66800-66801 (West Supp. 1977), Nev. Rev. Stat. §§ 277.190-277.230 (1973) (hereinafter cited as Compact).

         Compact, Arts. Y and VI.

       The States of California and Nevada and the county of El Dorado were originally named as defendants but either were not properly served or have been dismissed as parties.

       The amount in controversy exceeds $10,000. Title 28 U. S. C. § 1331, the general federal-question jurisdiction statute, provides in part:
      “The district courts shall' have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency, thereof, or any officer or employee thereof in his official capacity.”

       Title 42 U. S. C. § 1983 provides:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       Title 28 U. S. C. § 1343 provides in part:
      “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
      “(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.”

       See 2 P. Nichols, Eminent Domain §6.21 (rev. 3d ed. 1976).

       The issue we do not address is clearly stated in the following footnote to the Court of Appeals opinion:
      "Under the strict standard of pleading called for by Pacific States Box & Basket Co. v. White, 296 U. S. 176 . . . (1935), none of the complaints in any of the cases on appeal would withstand a motion to dismiss. They lack specific factual allegations which, if proved, would rebut the presumption of constitutionality that the Pacific States Court accorded acts of administrative and legislative bodies.
      "Although Pacific States has never been explicitly overruled, we do not believe that it represents the present state of the law because it was decided two years before the promulgation of the Federal Rules of Civil Procedure. We find no precedent in the Ninth Circuit applying Pacific States to an analogous case since the Rules took effect.
      “In Conley v. Gibson, 355 U. S. 41 . . . (1957), the Supreme Court explained the modern philosophy of pleading:
      “ '[A] 11 the Rules require is "a short and plain statement of the claim” that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. . . . The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’

        “Id., at 47-48,... (citations omitted).
      “Thus a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. 2A J. Moore, Federal Practice ¶ 12.08 (1975).
      “The allegations of ‘taking,’ even though phrased in terms of inverse condemnation, are sufficient to show that appellants complained that the TRPA exercised its police powers improperly, and that they relied on the due process clauses of the Fifth and Fourteenth Amendments.” 566 F. 2d, at 1359 n. 9.

       See University of California Regents v. Bakke, 438 U. S. 265, 380 (White, J.); United States v. Griffin, 303 U. S. 226, 229.

       The fact that the Compact at issue here required congressional consent to be effective clearly does not itself mean that action taken pursuant to it does not qualify as being “under color of state law.” This Court has, in the past, accepted that state regulations are properly considered “state law” even though they required federal approval prior to their implementation. See Rosado v. Wyman, 397 U. S. 397; King v. Smith, 392 U. S. 309.

       See n. 4, supra.

       Compact, Arts. Ill (a), VII (a).

       § 3, 83 Stat. 369. Section 6, 83 Stat. 369, also reserves to Congress the right to require TRPA to furnish information and data that it considers appropriate.

       Section 1983 originated as § 1 of the Civil Rights Act of 1871. In introducing that Act in Congress, Representative Shellabarger pointed out: “This act is remedial and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed . . . the largest latitude consistent with the words employed is uniformly given in construing such statutes.” Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871).

       See Edelman v. Jordan, 415 U. S. 651; Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459.

       See Mt. Healthy Board of Ed. v. Doyle, 429 U. S. 274; Moor v. County of Alameda, 411 U. S. 693, 717-721; Lincoln County v. Luning, 133 U. S. 529, 530; Compact, Art. VIII (b).

       Compact, Art. Ill (a). In addition, 10 of the 17 members of the Advisory Planning Commission established by the Compact are to be associated with local agencies, 4 others are to be residents of the region, and only 1 is from state government. Compact, Art. Ill (h).

       Compact, Art. VII (a).

       See California v. TRPA, 516 F. 2d 215 (CA9 1975).

       Because of our disposition of this question, we need not address petitioners’ argument that, even assuming that TRPA might be entitled to Eleventh Amendment immunity, such protection was affirmatively waived by the compacting States. See Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275.

       See Tenney v. Brandhove, 341 U. S. 367, 372-375; Scheuer v. Rhodes, 416 U. S. 232, 239 n. 4; Developments in the Law — Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1200 (1977) (legislative immunity “enjoys a unique historical position”).

       See Doe v. McMillan, 412 U. S. 306; Kilbourn v. Thompson, 103 U. S. 168.

       In support of these arguments, petitioners invoke decisions of the Courts of Appeals denying absolute immunity to subordinate officials such as county supervisors and members of a park district board. Williams v. Anderson, 562 F. 2d 1081, 1101 (CA8 1977) (school board members); Jones v. Diamond, 519 F. 2d 1090, 1101 (CA5 1975) (county supervisors); Curry v. Gillette, 461 F. 2d 1003, 1005 (CA6 1972), cert. denied sub nom. Marsh v. Curry, 409 U. S. 1042 (alderman); Progress Development Corp. v. Mitchell, 286 F. 2d 222, 231 (CA7 1961) (members of park district board and village board of trustees); Nelson v. Knox, 256 F. 2d 312, 314-315 (CA6 1958) (city commissioners); Cobb v. Malden, 202 F. 2d 701, 706-707 (CA1 1953) (McGruder, C. J., concurring) (city councilmen). Respondents, on the other hand, contend that in most, if not all, of the cases in which absolute immunity has been denied, the individuals were not in fact acting in a legislative capacity. We need not resolve this dispute. Whether individuals performing legislative functions at the purely local level, as opposed to the regional level, should be afforded absolute immunity from federal damages claims is a question not presented in this case.

       Article I, § 6, of the United States Constitution provides in part that “for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place.”

       See Tenney v. Brandhove, supra, at 375.

       There is no allegation in this complaint that any members of TRPA’s governing board profited personally from the performance of any legislative act. App. 8-12. If the respondents have enacted unconstitutional legislation, there is no reason why relief against TRPA itself should not adequately vindicate petitioners’ interests. See Monell v. New York City Dept. of Social Services, 436 U. S. 658.

       This holding is supported by the analysis in Butz v. Economou, 438 U. S. 478, which recognized absolute immunity for individuals performing judicial and prosecutorial functions within the Department of Agriculture. In that ease, we rejected the argument that absolute immunity should be denied because the individuals were employed in the Executive Branch, reasoning that “[j]udges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities.” Id., at 511. This reasoning also applies to legislators.