text:
    COMMODITY FUTURES TRADING COMMISSION et al. v. BRITISH AMERICAN COMMODITY OPTIONS CORP. et al.
    No. A-86 (77-96).
    Decided August 8, 1977
   Mr. Justice Marshall, Circuit Justice.

The Solicitor General, on behalf of the Commodity Futures Trading Commission and its members, has applied to me as Circuit Justice to vacate stays of mandate entered by the United States Court of Appeals for the Second Circuit pending applications for certiorari by the respondents herein. The stays have the consequence, for their limited duration, of preventing a Commission regulation that has yet to be enforced, Rule 32.6, 17 CFR § 32.6 (1977), from going into effect. The regulation, promulgated under the Commodity Futures Trading Commission Act of 1974 (CFTA), 88 Stat. 1389, 7 U. S. C. §§ 1-22 (1970 ed. and Supp. V), would require commodity options dealers to segregate in special bank accounts 90% of the payments made by each of their customers until such time as the customer’s rights under his options are exercised or expire. Having examined the written submissions of the Solicitor General and the responses thereto, I have concluded that this case does not present the exceptional circumstances required to justify vacation of the stays.

I

Prior to the enactment of CFTA, trading in options on certain agricultural commodities was prohibited under § 4c of the Commodity Exchange Act, 49 Stat. 1494, 7 U. S. C. § 6c, but options transactions in other commodities were wholly unregulated. Unsound and fraudulent business practices developed with respect to the unregulated options, and at least one major dealer went bankrupt, causing substantial losses to investors. In order to prevent such abuses in the future, CFTA created the Commission as an independent regulatory body and gave it the power to prohibit or regulate options transactions in the previously unregulated commodities. See 7 U. S. C. § 6c (a) (1970 ed., Supp. V).

Pursuant to this authority, the Commission immediately adopted an antifraud rule, and on November 24, 1976, after informal rulemaking proceedings, the Commission promulgated a comprehensive set of regulations that included the segregation requirement at issue in this application. The latter set of regulations also included provisions requiring options dealers (1) to be registered with the Commission; (2) to maintain certain minimum amounts of working capital; and (3) to provide customers with disclosure statements setting forth information about commissions and fees and explaining the circumstances under which customers would be able to make a profit. The segregation requirement was to go into effect on December 27, 1976; the other regulations were to take effect variously on December 9, 1976, and January 17, 1977.

Respondents, the National Association of Commodity Options Dealers (NASCOD) and a number of its members, brought suit in the United States District Court for the Southern District of New York, seeking pre-enforcement review of the November 24 regulations. The Commission defended the segregation requirement as a reasonable means of protecting investors in the event that a dealer holding options on their behalf becomes insolvent or otherwise unable to execute the options; presumably, the investors could at least recoup most of their initial outlay from the segregated fund. But respondents argued that the rule would drive them out of business; was unnecessary in light of other existing safeguards; and might not even be effective in facilitating return of customers’ investments should a dealer go bankrupt.

The District Court concluded that the segregation rule threatened respondents with irreparable harm and that respondents had a reasonable likelihood of success in having it overturned as arbitrary and capricious. Accordingly, on December 21, 1976, six days before the rule was to go into effect, the District Court preliminarily enjoined its enforcement. At the same time it granted summary judgment in favor of the Commission as to the remainder of respondents’ claims, and the other regulations went into effect as scheduled.

On cross-appeals, the Court of Appeals reversed the order insofar as it granted a preliminary injunction, holding “that the Commission’s decision to impose a segregation requirement was a reasonable exercise of its discretion in an effort to protect the public,” and affirmed the District Court in all other respects. British American Commodity Options Corp. v. Bagley, 552 F. 2d 482, 490-491 (1977). This decision was announced on April 4, 1977, and rehearing was denied on June 6, 1977. Respondents then moved the Court of Appeals, under 28 U. S. C. § 2101 (f) and Fed. Rule App. Proc. 41 (b), to stay its mandate pending applications to this Court for certiorari. On June 14, 1977, the members of the panel that had decided the case granted stays to respondents NASCOD, British American Commodity Options Corp. (British American), and Lloyd, Carr & Co. (Lloyd, Carr), conditional in the cases of British American and Lloyd, Carr on the posting of bonds in the amounts suggested in their motion — $250,000 for British American and $100,000 for Lloyd, Carr. On June 15, the Commission moved the Court of Appeals to reconsider the amounts of the bonds set in the June 14 order, but this motion was denied by the panel on June 24. On July 8 the panel granted stays of mandate to four additional NASCOD members, again conditional on posting of security, and this time the court ordered amounts greater than had been suggested with respect to three of the four firms. The instant application to vacate the stays entered on June 14 and July 8 was'filed on July 25.

II

There is no question ,as to the power of a Circuit Justice to dissolve a stay entered by a court of appeals. See, e. g., New York v. Kleppe, 429 U. S. 1307, 1310 (1976) (Marshall, J., in chambers); Holtzman v. Schlesinger, 414 U. S. 1304, 1308 (1973) (Marshall, J., in chambers); Meredith v. Fair, 83 S. Ct. 10, 9 L. Ed. 2d 43 (1962) (Black, J., in chambers). “But at the same time the cases make clear that this power should be exercised with the greatest of caution and should be reserved for exceptional circumstances.” Holtzman v. Schlesinger, supra, at 1308. Since the Court of Appeals was quite familiar with this case, having rendered a thorough decision on the merits, its determination that stays were warranted is deserving of great weight, and should be overturned only if the court can be said to have abused its discretion. See, e. g., 414 U. S., at 1305; Magnum Import Co. v. Coty, 262 U. S. 159, 163-164 (1923).

It is well established that the principal factors to be considered in evaluating the propriety of a stay pending application for certiorari and, correspondingly, whether to vacate such a stay granted by a court of appeals, are the “balance of equities” between the opposing parties, and the probability that this Court will grant certiorari. See, e. g., Beame v. Friends of the Earth, ante, p. 1310 (Marshall, J., in chambers) ; Holtzman v. Schlesinger, supra, at 1308-1311; Meredith v. Fair, supra. The relative weight of these factors will, of course, vary according to the facts and circumstances of each case.

As to the equities here, it is important to note that the stays entered by the Court of Appeals merely preserve the regulatory status quo pending final action by this Court. Options dealers were never in the past required to segregate customer payments, and the rule in question here has yet to be enforced. If and when the regulation does go into effect, respondents may well be driven out of business, and on this basis the District Court expressly found that respondents are threatened with irreparable harm.

Arrayed against this irreparable harm to respondents is the contention of the Solicitor General that the segregation requirement must be placed into effect immediately, in order to protect customers from loss in the event that respondents become insolvent or unable to execute their customers’ options during the time before this Court disposes of the case. The Solicitor General argues, quite correctly of course, that the Commission enacted the regulation because it felt the public needed the protection, and the Court of Appeals upheld the Commission’s judgment as reasonable.

But the same panel which sustained the regulation also deemed it appropriate to enter stays of mandate. Undoubtedly, the court recognized that during the time in which the case is pending before this Court customers will be guarded at least to some degree by the other Commission regulations, which were not enjoined and which have already gone into effect. More importantly, the court secured interim protection for investors by ordering bonds to be posted by respondents. Although the Solicitor General now complains that the bonds are not large enough to guarantee adequate insurance against loss, and that nothing short of the amounts that would have to be segregated under the terms of the regulation will suffice, these same arguments were made to, and rejected by, the Court of Appeals when it granted the stays and when it denied the Commission’s motion to reconsider the amount of bond which had been set for respondents British American and Lloyd, Carr. No significant change in circumstances is offered to justify re-evaluation of the Court of Appeals’ determination that the posted sums are adequate. See Jerome v. McCarter, 21 Wall. 17, 28-31 (1874). With the case in this posture, the risk of harm from putting off enforcement of the regulation for a few more months certainly appears to be outweighed by the potential injury to respondents if the regulation were allowed to go into effect.

If I were certain that this Court would not grant certiorari, the fact that the balance of equities clearly favors respondents would not be a sufficient justification for leaving the stays in force. But, without in any way expressing my own view as to the merits, it is not entirely inconceivable to me that four Justices of this Court will deem respondents’ attack on the segregation requirement worthy of review. Although the question of whether that requirement is .arbitrary and capricious is rather fact intensive, and is thus the type of matter that is normally appropriate for final resolution by the lower courts, see New York v. Kleppe, supra, at 1311, it does appear that the regulation would fundamentally alter the ground rules for doing business in a substantial industry, with potentially fatal consequences for a number of the firms currently in the trade, and this case presents the first opportunity for this Court to pass on action taken by the recently created Commission.

In these circumstances, I cannot say that the Court of Appeals abused its discretion by staying its mandate. The application to vacate the stays must accordingly be denied.

It is so ordered.

       Respondents deal in “London options,” which are options on futures contracts traded on various exchanges in London, England. American customers make cash payments to individual respondents, in amounts equal to the sum of the “premium” (the price charged for the option in London) and the respondent’s commission and fees. The respondents then forward the premium to a “clearing member” of the London exchange, who purchases the option for the account of the respondents. When the customer wishes to exercise the option, he informs the respondent dealer, who in turn informs the clearing member in London.
      The customers’ cash payments can be segregated or used to pay the premiums in London, but not both. Since respondents apparently cannot supply the additional cash from internal sources, they would have to borrow. They claim that they would be unable to obtain such loans and would consequently be forced out of business.


source: Caselaw Access Project

author: Mr. Justice Rehnquist, Circuit Justice.

license: Public Domain

text:
    RICHMOND v. ARIZONA
    No. A-108 (76-6720).
    Decided August 8, 1977
   Mr. Justice Rehnquist, Circuit Justice.

Applicant Willie Lee Richmond requests either a suspension of our order denying certiorari, 433 U. S. 915 (1977), or a stay of execution pending action on his petition for rehearing. The Supreme Court of Arizona has fixed September 14, 1977, as the date of execution of applicant and has denied his application for a stay. Because the petition for rehearing seems to me to demonstrate nothing that would indicate any reasonable likelihood of this Court's reversing its previous decision and granting certiorari, I have decided to deny the application.

On appeal of his conviction and death sentence to the Arizona Supreme Court, applicant argued that the Arizona capital punishment statute, Ariz. Rev. Stat. Ann. § 13-454 (Supp. 1973), was unconstitutionally ambiguous in not specifically limiting mitigating circumstances to the four factors enumerated in § 13-454 (F). After the Arizona Supreme Court ruled that only the enumerated factors could be taken into account, 114 Ariz. 186, 560 P. 2d 41 (1976), applicant moved for a rehearing on the ground that the statute as so limited failed to allow consideration of the character of the defendant in determining whether the death penalty should be imposed. While the statute includes in its list of mitigating circumstances significant impairment of a defendant’s capacity to tell right from wrong or to conform to the law, it fails to take into account other factors such as age, lack of prior criminal history, and intellectual level. Rehearing was denied.

Applicant renewed his constitutional attack against the Arizona death penalty statute in his petition for certiorari before this Court, again on the ground that it failed to allow consideration of the character and record of the individual offender. While specifically noting that the statute does not allow consideration of the defendant’s age or’ prior criminal history, the applicant did not suggest that such factors were relevant in his case. Certiorari was denied by this Court on June 27, 1977, with Justices Brennan and Marshall dissenting.

Applicant in his petition for rehearing here continues his attack on Arizona’s failure to adopt a more expansive list of mitigating circumstances. Applicant argues that our grant of certiorari in Bell v. Ohio, 433 U. S. 907 (1977), is an intervening circumstance that demands as a matter of “justice and judicial economy” that we also grant certiorari in his ease. Certiorari was granted in Bell v. Ohio, however, on the same day in which we denied certiorari in this case. Applicant’s assertion attributes a degree of irrationality to the Court in simultaneously granting Bell’s petition and denying his in which I cannot join. In my opinion, the cases are quite different. The Ohio and Arizona death penalty statutes are similar in that their lists of mitigating circumstances do not include such factors as age and lack of prior criminal convictions, which are included in the Florida statute approved in Proffitt v. Florida, 428 U. S. 242 (1976). Applicant, unlike Bell, however, does not allege that he would be aided by an expansion of the statutory list of mitigating circumstances. The petition in Bell pointed out that the defendant was 16 at the time of the penalty trial, had a low IQ, was considered emotionally immature and abnormal, had cooperated with the police, and had no significant history of prior criminal activity. What evidence is alluded to in the applicant’s papers does not suggest that any of the factors that applicant contends must be considered in imposing capital punishment would be relevant to his case. There is no indication in any of the applicant’s papers as to his age at either the time of the offense or trial. It is doubtful, particularly after our grant of certiorari in Bell, that applicant would have failed to include this fact in his petition for rehearing if he had been a minor at these times. The record also indicates that applicant had previously been convicted of kidnaping a victim at knifepoint. The only mitigating ground apparently suggested by applicant before the Arizona courts was psychological testimony characterizing applicant as a sociopath.

Applicant raises a second argument in his petition for rehearing that was not raised either before the Arizona Supreme Court or in his earlier petition for certiorari. Applicant argues that the Arizona statute violates the Sixth, Eighth, and Fourteenth Amendments in failing to provide for jury input into the determination of whether aggravating and mitigating circumstances do or do not exist. Such jury input would not appear to be required under this Court’s decision in Proffitt.

In summary, I conclude that there is no reasonable likelihood that applicant’s petition for rehearing would be granted by the full Court. I am fortified in this view by consultation with my colleagues. Applicant’s argument as to mitigating factors was before us in his initial petition for certiorari. He does not suggest any new reason why our initial decision to deny certiorari was wrong. Applicant’s jury contention appears to have been rejected in Proffitt. A motion for rehearing of an order denying certiorari does not automatically suspend the order during the Term, unlike a petition for rehearing after full consideration of the case on the merits. The petitioner must apply to an individual Justice for a suspension of the order denying certiorari. Cf. this Court's Rules 25 (2) and 59 (2). The question under such circumstances must be whether there is any reasonable likelihood of the Court’s changing its position and granting certiorari. As elaborated above, there does not seem to me to be any such likelihood here. The application for a suspension of our order denying certiorari or, in the alternative, a stay of execution is therefore denied.


author: Mr. Justice Stevens, Circuit Justice.

text:
    NATIONAL SOCIALIST PARTY OF AMERICA et al. v. VILLAGE OF SKOKIE
    No. A-162.
    Decided August 26, 1977
   Mr. Justice Stevens, Circuit Justice.

Following the entry of this Court’s order of June 14, 1977, 432 U. S. 43, the Illinois Appellate Court reviewed and substantially modified the injunction entered against applicants by the Circuit Court of Cook County, upholding only that portion of the injunction that prevented applicants from displaying the swastika “in the course of a demonstration, march or parade.” Thereafter, the Illinois Supreme Court scheduled an expedited review of the Appellate Court’s decision, but it denied an application for a stay of the injunction pending that review. On August 18, 1977, a similar application was submitted to me as Circuit Justice. I requested a response from the village of Skokie and have now decided to deny the application.

Applicants have not demonstrated that a stay is necessary to protect this Court’s appellate jurisdiction. There appears to be no danger that the controversy will become moot while the appeal is pending in the Illinois Supreme Court. Nor have applicants demonstrated that the Illinois courts have failed to comply with the “immediate appellate review” requirement of this Court’s order of June 14, 1977. After the entry of that order, both the Illinois Appellate Court and the Illinois Supreme Court expedited their consideration of the case, and I am confident that the Illinois Supreme Court will make its decision without any unnecessary delay. Even “immediate” appellate review of an important and difficult issue necessitates appropriate deliberation. Considering these facts, the fact that the injunction has been substantially modified, and the fact that the entry of the stay would be tantamount to a decision on the merits in favor of the applicants, it seems clear that a stay should not be granted.

The application submitted to me as Circuit Justice is denied.


author: Mr. Justice Powell, Circuit Justice.

text:
    WISE et al. v. LIPSCOMB et al.
    No. A-149.
    Decided August 30, 1977
    See: 551 F. 2d 1043.
   Mr. Justice Powell, Circuit Justice.

This is an application for a stay of the judgment and recall of the mandate of the United States Court of Appeals for the Fifth Circuit. That judgment directs the District Court for the Northern District of Texas to require the exclusive use of single-member districts in the election of the Dallas City Council. Applicants, the Mayor and City Council of Dallas, contend that any redistricting pending review by this Court could have the effect of mooting the case and defeating this Court's jurisdiction.

I

Before 1975 the 11 members of the Dallas City Council were elected by an exclusively at-large system of voting. Eight places on the ballot were reserved for candidates who resided in one of the city’s eight residential districts. Three seats, including the Mayor’s, were open to candidates regardless of residence. Voting for all 11 seats was citywide. For many years Council elections have been nonpartisan, involving slating groups rather than political parties. Electoral success has depended in major part upon support of one such group, the Citizens’ Charter Association.

Plaintiffs representing Negro citizens of Dallas challenged this election system in 1971. Certain Mexican-Americans intervened, but were dismissed from the case for failure to respond to interrogatories. In 1975, the District Court concluded that the at-large election system unconstitutionally diluted the vote of Dallas’ Negro citizens. The court rested this conclusion on findings dealing with the geographic concentration of Negroes within the city, the effect of slating groups, and the city’s history of de jure discrimination.

Instead of formulating its own districting plan, the court afforded the City Council an opportunity to enact a valid plan. The Council duly adopted an ordinance that provides for election of a Council member from each of eight single-member districts, the remaining three to be elected from the city at large. After careful examination of this plan, the District Court approved it. The court observed that single-member districts generally are preferable, but concluded that several facts weighed in favor of the city’s new system. First, the court noted that any plan which did not consider the effect on Mexican-American voters might itself be constitutionally suspect. Indeed, detailed consideration of the plan’s effect upon those voters, who were more geographically dispersed than Negro citizens, convinced the District Court that their electoral power would be enhanced. Second, the new plan permitted some citywide representation in a body that functioned as a legislature for the entire city. At-large voting in Dallas dated back to 1907, and there was no showing that its use in the new plan would have adverse effects on any minority. The court found a recent marked improvement in the political participation and general posture of minority groups in Dallas.

On appeal, the Court of Appeals reversed. 551 F. 2d 1043, (1977). Relying primarily on East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1976), and apparently drawing no distinction in this respect between court-ordered and legislatively enacted redistricting, the court held that absent unusual circumstances single-member districts are to be preferred. It concluded that no such circumstance existed. The case thereupon was remanded with instructions that the city redistrict itself into an appropriate number of single-member districts. A rehearing was denied, and a requested stay of mandate was refused.

II

Applicants level three charges of error at the judgment below. First, they contend that the Court of Appeals improperly ignored the distinctions drawn by this Court between state-enacted and court-ordered reapportionment plans. Applicants further argue that the court erroneously held that the city, in fashioning a remedy to correct unconstitutional dilution of the voting rights of one minority group, cannot consider the remedy’s impact on other groups in the absence of an adjudication that the other groups’ rights also were impaired unconstitutionally. Applicants’ final claim is that the court below erred in failing to consider the city’s need for some city wide representation.

This Court has declared repeatedly that the standards for evaluating the use of multimember and at-large voting plans differ depending on whether a federal court or a state legislative body initiated the use. E. g., Chapman v. Meier, 420 U. S. 1, 18 (1975); see Connor v. Finch, 431 U. S. 407, 414 (1977). When a federal court imposes a reapportionment plan upon a State, single-member districts are preferable in the absence of unusual circumstances. East Carroll Parish School Bd., supra, at 639. But "legislative reapportionment is primarily a matter for legislative consideration and determination,” Reynolds v. Sims, 377 U. S. 533, 586 (1964). When the State accepts this responsibility, its decisions as to the most effective reconciling of traditional policies should not be restricted beyond the commands of the Equal Protection Clause. Burns v. Richardson, 384 U. S. 73, 85 (1966); cf. Connor v. Finch, supra, at 414-415. The Court of Appeals, by holding the Dallas City Council to the “unusual circumstances” test of East Carroll Parish School Bd., appears to have confused these two standards. While we have never explicitly held that municipal election plans are entitled to the same respect accorded those of state legislatures, there is reason to believe that they should be. We indicated as much in Chapman v. Meier, supra, at 27:

“ [R] eapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.” (Citing Reynolds v. Sims, supra.)

See also Dusch v. Davis, 387 U. S. 112, 116-117 (1967).

The two additional errors advanced by applicants also may have merit. The view of the court below that a plan’s effect on various minority groups can be considered only after an adjudication of unconstitutional impairment as to those groups may be incompatible with the rationale of our recent decision in United Jewish Orgs. v. Carey, 430 U. S. 144 (1977). See also Gaffney v. Cummings, 412 U. S. 735, 752-754 (1973). Moreover, no apparent weight was given the express findings of the District Court with respect to the legitimate interest of the city in “having some at-large representation on [its] City Council.” 399 F. Supp. 782, 795 (1975). I had thought it clear that a federal court reviewing a reapportionment plan should consider and give appropriate weight to any valid state or municipal interest found to be furthered by the plan under consideration. See, e. g., Reynolds v. Sims, supra, at 578-581. Citywide representation appears to be such an interest. Cf. Dusch, supra; Fortson v. Dorsey, 379 U. S. 433, 438 (1965).

Ill

The general principles that guide a Circuit Justice with respect to stay applications are well settled. The judgment of the court below is presumed to be valid, and absent unusual circumstances we defer to the decision of that court not to stay its judgment. Moreover, the party seeking a stay bears the burden of advancing persuasive reasons why failure to grant could lead to irreparable harm. In light of the foregoing considerations, the Circuit Justice must make a judgment whether there is a “reasonable probability that four members of the Court will consider the issue sufficiently meritorious to grant certiorari.” Graves v. Barnes, 405 U. S. 1201, 1203 (1972) (Powell, J., in chambers).

I think there is a reasonable probability that at least four Members of the Court will vote to grant certiorari in this case. The case involves a major city that has adhered to its tradition of at-large elections since 1907. As indicated above, the Court of Appeals may well have thought that the principles applicable to a state legislative redistricting did not apply with full force to such action by a city council. It also appears likely that established principles of general application in the redistricting cases were not applied correctly. Applicants also claim irreparable injury unless a stay is granted. Although the next regular election is not scheduled until April 1979, if the judgment of the Court of Appeals is not stayed, experience indicates that respondents will press promptly for a special election. In their response to this application, they comment that a stay “would unjustifiably prolong” an appropriate remedy. If the remedy ordered by the Court of Appeals were effectuated, the issues presented here probably would be mooted. In any event, in a situation of this kind the capacity of the incumbent Council to function effectively in the public interest may be impaired if the judgment is not stayed.

I will, therefore, enter an order recalling the mandate and staying the judgment of the Court of Appeals pending disposition of the petition for certiorari.

         As noted in the opinion of the District Court, the racial composition of the Dallas City Council in 1975 was two Negroes, one Mexican-Ameriean, and eight whites. 399 F. Supp. 782, 787 n. 5 (1975).

       The distinction is between a court-ordered plan, which may or may not have been proposed by a legislative body, and a court-approved plan, which has been initiated and promulgated as law by the legislative body. East Carroll Parish School Bd. involved the former, and this Court noted that “in submitting the plan to the District Court, the [police] jury did not purport to reapportion itself in accordance with the 1968 enabling legislation . . . , which permitted police juries and school boards to adopt at-large elections.” 424 U. S., at 639 n. 6. Here, by contrast, "[t]he district court approved the City’s plan for relief, which was enacted as a city ordinance following the court’s decision that the prior system was unconstitutional.” 551 F. 2d 1043, 1045 (CA5 1977). Thus, a rule of limited deference to local legislative judgments is appropriate in this case, for as we held in Burns v. Richardson, 384 U. S. 73, 85 (1966), “a State’s freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause.”

       The opposition to the new plan of certain Mexican-American voters does not render the District Court’s findings in this respect automatically invalid. Those intervenors were never certified as the representatives of any class.

       After alluding to the evidence and to the concession by the plaintiffs (who themselves had proposed a plan involving the citywide election of the member of the Council designated as Mayor), the District Court found: “The Court believes and so finds that there is a legitimate governmental interest to be served by having some at-large representation on the Dallas City Council; that this governmental interest is the need for a city-wide view on those matters which concern the city as a whole, e. g., zoning, budgets, and city planning; and that three at-large members do not render the city’s plan constitutionally infirm.” 399 F. Supp., at 795 (footnote omitted).

       The District Court found:
      “[A]t-large voting, especially on the municipal level has been an integral part of Texas local governments [since 1907 in Dallas] and . . . at large voting schemes have their genesis in reasons other than those racially motivated.” Id., at 797.


author: Mr. Justice Stewart, Circuit Justice.

text:
    KRAUSE et al. v. RHODES, GOVERNOR OF OHIO, et al.
    No. A-260.
    Decided September 16, 1977
    See: 570 F. 2d 563.
   Mr. Justice Stewart, Circuit Justice.

This is an application for an injunction and/or a stay of mandate of the United States Court of Appeals for the Sixth Circuit, pending the filing of a petition for certiorari in this Court. Its purpose is to secure from me, as Sixth Circuit Justice, an order stopping for the time being the construction of a gymnasium on a site at Kent State University in Ohio. The claim is that only such an order will prevent the obliteration of evidence necessary to a fair retrial of a lawsuit in which the applicants are plaintiffs.

Similar applications are now pending in the United States District Court for the Northern District of Ohio and in the United States Court of Appeals for the Sixth Circuit. Because of the intimate familiarity with the factual environment of this litigation acquired by those courts during the original trial and appeal, they are both now in a position far superior to that of an individual Justice of this Court fairly to assess the merits of the applicants' position.

Accordingly, the application is hereby denied, without prejudice to the right of the applicants to continue to pursue similar relief in the District Court and/or the Court of Appeals, or to petition this Court for certiorari.

It is so ordered.


text:
    BARTHULI v. BOARD OF TRUSTEES OF JEFFERSON ELEMENTARY SCHOOL DISTRICT
    No. A-247.
    Decided September 20, 1977
    See: 19 Cal. 3d 717, 566 P. 2d 261.
   Mr. Justice Rehnquist, Circuit Justice.

Applicant Roger Barthuli seeks a stay of the judgment of the Supreme Court of California in the case of Barthuli v. Board of Trustees, 19 Cal. 3d 717, 566 P. 2d 261 (1977), pending his filing of a petition for writ of certiorari to review that judgment. The Supreme Court of California held that the applicant, who had an employment contract with the respondent School District as an associate superintendent of business, was not entitled to notice and a hearing before being discharged from that position. Although I am not entirely confident that four Justices of this Court will not vote to grant applicant's petition for certiorari when filed, my doubt on that score combined with the failure of applicant to demonstrate any irreparable injury has led me to deny the requested stay. I also have serious reservations whether the requested stay is consistent with the Art. Ill limitations on my powers.

Applicant, after being discharged, filed suit in the California courts seeking a writ of mandate reinstating him to his administrative position. The Supreme Court of California, by a vote of five to one, decided that applicant had no statutory right to continue in his position as associate superintendent of business. It stated that he did have a statutory right to continue as a tenured classroom teacher and that the latter right could be enforced by writ of mandate; applicant, however, has never sought reinstatement as a classroom teacher. The Supreme Court of California further held that under California law an employee cannot obtain specific performance of an employment contract where he has an adequate remedy at law in an action for damages; the Supreme Court affirmed the finding of the lower court that applicant’s damages action was adequate.

The relevant cases of this Court dealing with the due process rights of public employees discharged from their positions are Board of Regents v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann, 408 U. S. 593 (1972); Arnett v. Kennedy, 416 U. S. 134 (1974); and Bishop v. Wood, 426 U. S. 341 (1976). Examining the various views expressed in Arnett, supra, a majority of the Court might conclude that California’s refusal to grant specific performance where there is an adequate remedy at law acts as a limitation upon the expectation of the employee in continued employment, which is a necessary condition to a constitutional claim under Roth; alternatively, a majority might conclude that the expectancy embraces the performance of the promise contained in the contract. For myself, I would adhere to the former view, and would be inclined to think that this is not one of the “rare” cases in which the “federal judiciary has required a state agency to reinstate a discharged employee for failure to provide a pre-termination hearing.” Bishop v. Wood, supra, at 349 n. 14. But I am not prepared to confidently assert that four of my colleagues might not think otherwise.

Applicant, in order to secure a “stay” of the judgment of the Supreme Court of California, must show not only a reasonable probability that certiorari will be granted in his case but also that irreparable injury will result in the event that a stay is denied. The judgment of the Supreme Court of California simply affirmed a judgment of the Superior Court denying applicant a writ of mandate to compel his reinstatement as an associate superintendent of business in respondent School District. Obviously, a “stay” of the judgment of the Supreme Court of California will accomplish nothing whatever for applicant. He does not seek the extraordinary interim remedy of a mandatory injunction requiring his reinstatement to the position he previously held; he was dismissed from that position in 1973, his unsuccessful litigation in the state courts of California has apparently consumed the intervening four years, and in his application to me he expressly disavows any desire to “undo or alter” that dismissal.

A “stay” of the judgment of the Supreme Court of California such as applicant seeks would affect no present rights of either applicant or respondent. Given the Art. Ill limitation of our jurisdiction to “Cases” and “Controversies,” I therefore have serious reservations whether the limited and abstract stay which applicant seeks is even within my power to grant. “It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prej-udicially” that this Court or Members thereof can take judicial action. Texas v. ICC, 258 U. S. 158, 162 (1922). A stay of the judgment of the Supreme Court of California in these circumstances would amount to nothing more than “a mere declaration in the air.” Giles v. Harris, 189 U. S. 475, 486 (1903). See also United Public Workers v. Mitchell, 330 U. S. 75, 89-90 (1947); Ashwander v. TVA, 297 U. S. 288, 324 (1936).

I accordingly decline to issue the stay.


text:
    MECOM v. UNITED STATES
    No. A-222.
    Decided September 20, 1977
   Mr. Justice Powell, Circuit Justice.

This is an application for reduction of bail pending appeal to the Court of Appeals for the Fifth Circuit. Following a jury trial in the District Court for the Southern District of Texas, applicant was convicted of conspiracy to possess marihuana with intent to distribute it, in violation of 21 U. S. C. § 846. He was sentenced to five years’ imprisonment to be followed by a special parole term of five years. Applicant’s appeal from that conviction is pending in the Court of Appeals.

Before trial, bail was set at $1,000,000. Upon applicant’s motion, this was reduced to $750,000. The District Court provided no statement of reasons for setting bail at so high an amount, despite the requirements of 18 U. S. C. § 3146 (d). Bail was continued at the same amount pending appeal, and again no statement of reasons was provided, although one is required by Fed. Rule App. Proc. 9 (b). The Court of Appeals denied applicant’s motions for reduction of bail. Unable to raise the required amount, he remains incarcerated pending appeal.

Applicant argues that his bail has been set in an excessive and unreasonable amount, citing Sellers v. United States, 89 S. Ct. 36, 21 L. Ed. 2d 64 (1968) (Black, J., in chambers). He insists that neither the District Court nor the Court of Appeals made a specific finding that applicant would fail to appear. In particular, he alleges that he has substantial roots in the community, that he had never before been charged with a criminal offense, and that his interests in a local laundromat-grocery store and a shrimp boat business will serve to keep him from fleeing the jurisdiction.

Decisions of the District Court with respect to bail are entitled to "great deference.” Harris v. United States, 404 U. S. 1232 (1971) (Douglas, J., in chambers). A Circuit Justice, however, has a responsibility to make an independent determination on the merits of the application. Ibid. Because of the District Court’s failure to adduce reasons for its decision, it was necessary to obtain from the Government a response to applicant’s allegations.

According to the Government response, the evidence at trial indicated the following: Applicant was involved in a large-scale smuggling enterprise, which imported marihuana into Texas from Mexico in loads of 200 to 700 pounds; the marihuana was then distributed to locations as far away as Indiana; applicant’s wife, a co-indictee, acted as his “connection” in Mexico and is currently a fugitive there; another associate in the enterprise is also a fugitive; and applicant and his associates were frequently in possession of large amounts of cash. The Government further states that at the bond hearing there was evidence that applicant paid $100,000 for the murder — unsuccessfully attempted — of an associate suspected of cooperating with the authorities.

Under these circumstances, there is certainly no reason to disturb the rulings of the courts below. Accordingly the application for reduction of bail is denied.

       Title 18 U. S. C. § 3146 (d) provides in pertinent part as follows:

        “A person for whom conditions of release are imposed and who after twenty-four hours from the time of the release hearing continues to be detained as a result of his inability to meet the conditions of release, shall, upon application, be entitled to have the conditions reviewed by the judicial officer who imposed them. Unless the conditions of release are amended and the person is thereupon released, the judicial officer shall set forth in writing the reasons for requiring the conditions imposed.”
      See United States v. Briggs, 476 F. 2d 947 (CA5 1973) (defendants entitled to know reasons for imposition of conditions of release).

       Rule 9(b) provides as follows:
      “(b) Release Pending Appeal from a Judgment of Conviction. Application for release after a judgment of conviction shall be made in the first instance in the district court. If the district court refuses release pending appeal, or imposes conditions of release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the court of appeals or to a judge thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the appellee. The court of appeals or a judge thereof may order the release of the appellant pending disposition of the motion.”

       Applicant has raised no- objection to the District Court’s failure to provide a statement of reasons.

       Compliance with the requirements of § 3146 (d) and Rule 9 (b) not only facilitates review in this Court of bail decisions, but also may serve to focus the attention of the District Court upon the relevant elements of such decisions.


text:
    MINCEY v. ARIZONA
    No. A-302 (77-5353).
    Decided October 6, 1977
   Mr. Justice Rehnquist, Circuit Justice.

Applicant was convicted of murder, assault, and related drug offenses growing out of an incident which occurred at an apartment leased by him in Tucson, Ariz. The Supreme Court of Arizona reversed the murder and assault convictions because of erroneous jury instructions, but affirmed the judgments of conviction on the drug counts. Applicant now requests a stay of his second trial on the murder and assault counts, presently scheduled to take place on November 4, for the reason that evidence which he claims was obtained in violation of his rights under the United States Constitution will be admitted at that trial. The evidence in question was found by the Supreme Court of Arizona to have been properly admitted in his first trial, but applicant is seeking review of that determination in a petition for certiorari presently pending before this Court. He asks that the stay of his retrial be effective until his petition for certiorari is finally disposed of here.

The petition for certiorari is less than precise as to how much of the judgment of the Supreme Court of Arizona applicant wishes this Court to review. I think his constitutional claims with respect to the admission of evidence at his trial can be reviewed here only insofar as they pertain to those convictions affirmed by the Supreme Court of Arizona (the drug counts). Indeed, the application does not seek a stay of the judgments affirming those convictions, but refers only to the murder and assault counts. Since the judgments of conviction on those counts have been reversed by the Supreme Court of Arizona, they are not final under 28 U. S. C. § 1257. But the constitutional claims which applicant seeks to assert in his petition for certiorari are, so far as I can tell, common to all counts. I assume for purposes of this motion that reversal by this Court of applicant’s convictions on the drug counts would require reversal of a conviction obtained on the retrial of the murder count if the same evidence were admitted in that proceeding.

I find it unnecessary to engage in the usual speculation as to whether the petition will commend itself to four Justices of this Court, because I think that even if the petition is granted the present application should be denied. The federal constitutional right asserted by applicant is not one such as is conferred by the Double Jeopardy Clause of the Fifth Amendment where the protection extends not only to incarceration following trial in violation of the prohibition but to the subjection of the defendant to a second trial at all. Applicant’s constitutional claims are based on constitutional prohibitions against the admission of certain evidence at trial, and will be sufficiently vindicated if he be freed from incarceration as a result of a conviction had in reliance on such evidence. Such claims must be asserted through normal post-trial avenues of review. Cf. Younger v. Harris, 401 U. S. 37 (1971); Stefanelli v. Minard, 342 U. S. 117 (1951).

I therefore conclude that even though this Court were to grant the petition for certiorari to review applicant’s conviction on the drug counts, he would not be entitled to have his presently scheduled trial in the Arizona court stayed pending our determination of the merits of the claims made in the petition. I accordingly deny his motion to stay the trial.


text:
    NEW MOTOR VEHICLE BOARD OF CALIFORNIA v. ORRIN W. FOX CO. et al.
    No. A-451.
    Decided December 6, 1977
   Mr. Justice Rehnquist, Circuit Justice.

Applicant, the New Motor Vehicle Board of the State of California, has requested me to stay a judgment of the United States District Court for the Central District of California entered on October 19, 1977. That judgment enjoined enforcement of the California Automobile Franchise Act (Cal. Veh. Code Ann. §§ 3060-3069 (West Supp. 1977)), insofar as that Act’s provisions relate to the establishment and relocation of franchised motor vehicle dealerships.

The pertinent provisions of the Act provide that before an automobile manufacturer or its proposed or existing dealer may establish a new dealership or relocate an existing one notice of such intention must be given to the Board and to all existing dealers for the “same line make” (direct competitors) within the “relevant market area.” § 3062. Upon receiving such a notice any dealer may file within 15 days a protest against the proposed establishment or relocation, and the Board is thereupon required to order the postponement of the establishment or relocation of the dealership pending hearing and final decision on the merits of the protest. Failure to comply with.the order is a misdemeanor under California law, and can result in the suspension or revocation of the license of a manufacturer or dealer.

Upon receipt of a protest, the Board is also required to issue an order fixing a time for the hearing, which is to commence within 60 days following the order. Without further elaborating the statutory proceedings relating to the hearing and ultimate decision of the Board, I am satisfied that the District Court correctly concluded that in the normal course of events manufacturers and dealers wishing to establish or relocate a franchise would be prevented from doing so for a period of several months during which the hearing is conducted and the Board renders its decision.

Respondents, General Motors Corp. and two Southern California retail automobile dealers, brought an action seeking to enjoin the enforcement of these provisions of the Act. The three-judge District Court granted the relief requested by these respondents, and expressed the view that “the right to grant or undertake a Chevrolet dealership and the right to move one’s business facilities from one location to another” fell within the ambit of liberty interests protected by the Fourteenth Amendment. The court further concluded, citing Fuentes v. Shevin, 407 U. S. 67, 84-86 (1972); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); and Mullane v. Central Hanover Trust Co., 339 U. S. 306, 313 (1950), that under the Due Process Clause this “liberty” could be curtailed only after a hearing. Here, the court reasoned, since respondents were deprived of their “liberty” to move or establish a dealership for many months pending the Board’s decision, enforcement of the statute occasioned a “gross violation of the Due Process Clause of the Fourteenth Amendment.”

Upon consideration of the application and the response, I have decided that the stay should be granted conditioned as hereinafter indicated. Because the case presumably will be coming to us by appeal and will therefore be within our obligatory jurisdiction, I feel reasonably certain that four Members of the Court will vote to note probable jurisdiction and hear the case on the merits, and I am also of the opinion that a majority of the Court will likely reverse the judgment of the District Court. Cf. Graves v. Barnes, 405 U. S. 1201, 1203-1204 (1972) (Powell, J., in chambers). It should not be necessary to add that neither of these matters can be predicted with anything like mathematical certainty, and the respondents for whom judgment is stayed are free to move the full Court to vacate a stay if they feel the Circuit Justice has miscalculated on these points.

I believe the District Court was wrong when it decided that an automobile manufacturer has a “liberty5' interest protected by the Due Process Clause of the Fourteenth Amendment to locate a dealership wherever it pleases, and was also wrong when it concluded that such a protected liberty interest could be infringed only after the sort of hearing which is required prior to ceasing a constitutionally protected property interest. Our cases in this difficult area do- not offer crystal-clear guidance, and I venture my own analysis of the problem fully realizing that it is not apt to be the last word authoritatively spoken on the subject.

Meyer v. Nebraska, 262 U. S. 390, 399 (1923), did indeed state that the right to liberty guaranteed by the Due Process Clause included the right “to engage in any of the common occupations of life,55 and went on to say that such liberty could not be interfered with “under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competence of the State to effect.55 Id., at 399-400. Meyer, I think, was what many would call a “substantive due process55 case, where the legislature had flatly prohibited or limited a particular type of action without regard to individualized differences among potential actors. For example, five years after Meyer the Court held that the Due Process Clause prohibited States from limiting fees charged by employment agencies. Ribnik v. McBride, 277 U. S. 350 (1928). This decision was not based on any procedural defect in the statute, because the New Jersey statutory scheme made no- provision for individualized determinations as to what fees might be charged; the statute by its terms set the limits, and no fact that could have been proved at a hearing would have been grounds under the statutory scheme for avoiding the limits imposed by the statute. The sort of substantive due process analysis embodied in cases such as Ribnik, supra, has long since faded from the scene, and that case itself was expressly overruled in Olsen v. Nebraska, 313 U. S. 236 (1941). While it may well be that there remains a core area of liberty to engage in a gainful occupation that may not be “arbitrarily” denied by the State, I do not think that the claim to establish an automobile dealership whenever and wherever one chooses is within that core area. Prior to the enactment of the Act here in question, respondents were not restrained by state law of this kind from so doing, but the absence of state regulation in the field does not by itself give them a protected “liberty” interest which they may assert in a constitutional attack on newly enacted limitations on their previously unrestricted ability to locate a dealership.

The cases upon which the District Court specifically relied in concluding that the California Act was unconstitutional were, as noted above, Fuentes, supra, Sniadach, supra, and Mullane, supra. But all of these cases involved “property” interests found to be protected under the Due Process Clause against deprivation without prior hearing. There is no question that these cases state the law with respect to property interests such as were involved in them. But I cannot accept, and do not believe that a majority of this Court would accept, the proposition that respondents’ “liberty” interest in establishing a car dealership was also a “property” interest which is protected against deprivation without prior hearing in the same manner as were the property interests involved in Fuentes, supra, Sniadach, supra, and Mullane, supra. The State of California was not seizing any existing tangible property interest of respondents by this Act; it was simply requiring them to delay establishment of a dealership on property which they presumably owned or leased or were in the process of buying or leasing until the Board considered and decided the protests against the proposed establishment. The suggestion that one has a right to conduct whatever sort of business he chooses from property he owns or leases was rejected at least as long ago as Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); see City of Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668 (1976); Village of Belle Terre v. Boraas, 416 U. S. 1 (1974).

If California had by statute conferred upon automobile manufacturers and dealers the right to establish and relocate franchises wherever they chose, and then imposed a procedural hurdle such as the one here in question before the right could be effectuated, the case would be close to decisions such as Arnett v. Kennedy, 416 U. S. 134 (1974), and Bishop v. Wood, 426 U. S. 341; 348-349 (1976). But the respondents had no such statutorily conferred entitlement or property right before the passage of this Act; they were free to locate their franchises where they chose, subject to state and local restrictions of differing kinds, simply because the State had not chosen to limit that freedom by legislation. When the State later decided to impose the limits here in question, and establish the hearing procedures which it did, I think it deprived respondents of neither “liberty” nor “property” within the meaning of the Fourteenth Amendment to the United States Constitution.

Respondents argue that the State is not injured by the injunction because the proposed relocations are almost invariably approved, and therefore even if the District Court was wrong on the merits a stay should not be granted. This argument casts too narrowly the purpose of the statute and the injury to the State, however. The interest of the State does not necessarily find expression through disapproval of relocation plans, but rather through the act of examining the proposed relocations to make sure that existing dealers are not being impermissibly harmed by the manufacturer and that the move is otherwise in the public interest. This interest is infringed by the very fact that the State is prevented from engaging in investigation and examination. And the occasion for this review may arise often during the time this injunction is in effect. In an affidavit presented to the District Court, Sam W. Jennings, Executive Secretary of the New Motor Vehicle Board, indicated that in the first 44 days following the issuance of the District Court’s injunction, the Board received 99 notices of intent to relocate or establish new dealerships in California. Under the terms of the injunction, all those applicants will be allowed to locate dealerships without undergoing any scrutiny by the State. And assuming the State eventually prevails on the merits and the injunction is lifted, it is not at all clear that the New Motor Vehicle Board will have the authority to examine the propriety of all those relocations vor to force those relocated dealerships to stop doing business. It also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.

Respondents further argue that they are delayed in completing the necessary business arrangements for establishing or relocating, and this often results in losing the opportunity to locate in a particularly desirable spot. This irreparable injury outweighs any short-term interest the State has in enforcing the statute, they argue. While respondents’ contentions are not completely without force, I am ultimately unpersuaded. Respondents may undergo some hardships because of the delay between the protest and the hearing, but the statute appears to minimize the delay, and the applicant appears to agree to abide by such a construction, at least for purposes of this stay. In its proposed stay order presented to the District Court applicant suggested a provision along the following lines:

“FURTHER ORDERED that pending determination of said appeal, all orders required by California Vehicle Code section 3066, subdivision (a), fixing the times and places of hearings upon protests against relocation or establishment of dealerships shall be issued and served by defendant New Motor Vehicle Board concurrently with the notification required to be made by the Board to the franchisor under California Vehicle Code section 3062

They have indicated a willingness to have this same provision incorporated into a stay issued by me. Under these conditions, I think the hardship worked on respondents by the statutory scheme does not outweigh the damage done to the State by the injunction and therefore I grant the proposed stay on the terms described above. As I have said before, statutes are presumptively constitutional and, absent compelling equities on the other side, which I do not find in this case, should remain in effect pending a final decision on the merits by this Court. Cf. Marshall v. Barlow’s, Inc., 429 U. S. 1347, 1348 (1977) (Rehnqulst, J., in chambers).

It is therefore ordered that, pending applicant’s timely filing and this Court’s disposition of a jurisdictional statement, the injunction entered by the District Court for the Central District of California in this case on October 19, 1977, be and the same hereby is stayed. The stay order shall incorporate the above-quoted paragraph proposed by applicant to the District Court.

       It is unclear under the statute whether the same communication should contain both the order enjoining the proposed establishment or relocation of the dealership and the order setting the date of the hearing. In the case of one of the respondents in the instant action, the Board set the hearing date six weeks after issuing the injunction. The District Court, however, interpreted the statute to require the injunction and the order setting the hearing date to be promulgated concurrently.

       The court also thought this statute permitted action distinguishable from that authorized in Fahey v. Mallonee, 332 U. S. 245 (1947) (statute permitting Government to summarily seize banks in serious financial difficulty), or Ewing v. Mytinger & Casselberry, 339 U. S. 594 (1950) (procedure for summary seizure of misbranded drugs by Government). Here there was no provision authorizing a public official to exercise discretion as to whether the public interest required immediate action, but rather the injunction automatically followed a protest by a competitor.
      The court also thought the acts authorized under the statute differed from the act of a party obtaining a restraining order pending hearing. A party seeking a restraining order must make a persuasive showing of irreparable harm and likelihood of prevailing on the merits. No such showing was required of the competitor before his protest turned into an injunction under the statute.

       Respondents also attack the statute on the grounds that it conflicted with the federal antitrust laws. The District Court did not pass upon this contention.

       The stated concerns which prompted enactment of the Act were “to avoid undue control of the independent . . . dealer by the vehicle manufacturer or distributor and to insure that dealers fulfill their obligations under their franchises and provide adequate and sufficient service to consumers generally.” 1973 Cal. Stats., ch. 996, § 1. This concern has prompted at least 18 other States to enact statutes which prescribe conditions under which new or additional dealerships may be permitted in the territory of the existing dealership. See Ariz. Rev. Stat. Ann. § 28-1304.02 (1976); Colo. Rev. Stat. § 12-6-118 (1974); Fla. Stat. §320-642 (1975); Ga. Code § 84-6610 (f) (8), (10) (1975); Haw. Rev. Stat. § 437-28 (b) (22) (B) (Supp. 1975); Iowa Code § 322A.4 (Supp. 1977-1978); Mass. Gen. Laws Ann., ch. 93B, §4 (3)(l) (West 1972 and Supp. 1977-1978); Neb. Rev. Stat. § 60-1422 (1974); N. H. Rev. Stat. Ann. § 357-B:4 (III) (l) (Supp. 1975); N. M. Stat. Ann. § 64-37-5 (P) (Supp. 1975); N. C. Gen. Stat. §20-305 (5) (1975); R. I. Gen. Laws §31-5.1-4 (C) (11) (Supp. 1976); S. D. Comp. Laws Ann. §§ 32-6A-3, 32-6A-4 (1976); Tenn. Code Ann. § 59-1714 (j) (1968); Vt. Stat. Ann., Tit. 9, § 4074 (c) (9) (Supp. 1977); Va. Code § 46.1-547 (d) (Supp. 1977) ; W. Va, Code § 347-17-5 (i) (Supp. 1977); Wis. Stat. § 218.01 (3) (f) (1957). Congress has also taken remedial action. See Automobile Dealer’s Day in Court Act, 70 Stat. 1125, 15 U. S. C. §§ 1222-1225.


text:
    NATIONAL BROADCASTING CO., INC., et al. v. NIEMI, A MINOR BY AND THROUGH HER GUARDIAN AD LITEM
    No. A-652.
    Decided February 10, 1978
   Mr. Justice Rehnquist, Circuit Justice.

Applicants have requested that I stay the commencement of a civil trial in the Superior Court of the City and County of San Francisco in which they are defendants in order that they may have an opportunity to apply for and obtain a writ of certiorari from this Court to review the judgment of the Court of Appeal of the State of California filed October 26, 1977. That court reversed the judgment of dismissal rendered by the Superior Court in a case wherein respondent sought damages from petitioners for injuries allegedly inflicted upon her by persons who were acting under the stimulus of observing a scene of brutality which had been broadcast in a television drama entitled “Born Innocent.” Applicants contend that the First and Fourteenth Amendments to the United States Constitution prevent their being subjected to liability and damages in an action such as this, and intend to petition this Court for certiorari to review the judgment of the Court of Appeal remanding the case for trial.

I find it unnecessary to determine whether four Justices of this Court would vote to grant a petition for certiorari by these applicants to review a California judgment sustaining a judgment for damages against them on the basis described above in the face of their claim that the First and Fourteenth Amendments prohibit the rendering of such a judgment. The only question before me is whether those same constitutional provisions would be thought by at least four Justices of this Court to call for the granting of a writ of certiorari to review the interlocutory judgment of the state Court of Appeal which did no more than remand'the case for a trial on the issues joined. I am quite prepared to assume that the Court would find the decision of the Court of Appeal sought to be stayed a “final judgment” for purposes of 28 U. S. C. § 1257 (2) pursuant to its holding in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975). But the mere fact that the Court would have jurisdiction to grant a stay does not dispose of all the prudential considerations which, to my mind, militate against the grant of the application in this case. Every year we grant petitions for certiorari or note probable jurisdiction in cases in which we ultimately conclude that a state or federal court has failed to give sufficient recognition to a federal constitutional claim, and have as a consequence reversed the judgment of such court rendered upon the merits of the action. But this is a far cry from saying that this Court would have stayed further proceedings in the same cases at an interlocutory stage comparable to the case now before me.

True, in the case of double jeopardy, we have held that the subjecting of the defendant to the second trial itself is a violation of the constitutional right secured by the Sixth Amendment, Abney v. United States, 431 U. S. 651, 660-661 (1977), even though any judgment of conviction rendered in that trial would be subject to ultimate reversal on appeal. The same doctrine is found in cases more closely resembling this such as Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), and Cox, supra. But in both Tornillo and in Cox the First and Fourteenth Amendment claims were far more precisely drawn as a result of the decisions of the state courts than is the case here. A reading of the opinion of the Court of Appeal indicates that it might have been based on a state procedural ground, by reason of the fact that the trial judge, himself, after denial of a motion for summary judgment but before the em-panelment of a jury, viewed the entire film and rendered judgment for applicants because he found that it did not “advocate or encourage violent and depraved acts and thus, did not constitute an 'incitement/ ” The Court of Appeal held that this was a violation of respondent’s right to trial by jury guaranteed her by the California Constitution, and went on to state that:

“[I]t is appropriate to acknowledge that, if the cause had proceeded properly to trial before a jury and a verdict awarding damages to appellant had been the result, it would have been the responsibility of the trial court, or perhaps of this court on appeal, to determine upon a reevaluation of the evidence whether the jury’s fact determination could be sustained against a First Amendment challenge to the jury’s determination of a 'constitutional fact.’ (Rosenbloom v. Metromedia, supra, 403 U. S. 29, 54 . . . .)” Olivia N. v. National Broadcasting Co., Inc., 74 Cal. App. 3d 383, 389, 141 Cal. Rptr. 511, 514 (1977).

The contours of California tort law are regulated by the California courts and the California Legislature, subject only to the limitations imposed on those bodies by the United States Constitution and laws and treaties enacted pursuant thereto. In the principal case relied upon by applicants in support of their stay, United States v. Shipp, 203 U. S. 563 (1906), “a sheriff allowed appellant to be lynched pending appeal to this Court of his conviction.” A requirement to defend an action such as applicants are now required to defend in the Superior Court, and if unsuccessful there to post a supersedeas bond and prosecute their constitutional claims through the normal appellate process to this Court, is scarcely a comparable example of irreparable injury. Since I find that applicants’ claims of irreparable injury resulting from the judgment of the Court of Appeal in this case are not sufficient to warrant my granting their application, I accordingly deny the stay.

So ordered.


author: Per Curiam.

text:
    CALIFANO, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. TORRES
    No. 77-88.
    Decided February 27, 1978

       Together with No. 77-126, Califano, Secretary of Health, Education, and Welfare v. Colon et al., also on appeal from the same court.

   Per Curiam.

Certain benefits under the Social Security Act, as amended in 1972, are payable only to residents of the United States, defined as the 50 States and the District of Columbia. The District Court for the District of Puerto Rico held in these cases that this geographic limitation is unconstitutional as applied to persons who upon moving to Puerto Rico lost the benefits to which they were entitled while residing in the United States. The Secretary of Health, Education, and Welfare, responsible for the administration of the Social Security Act, has appealed.

I

One of the 1972 amendments to the Social Security Act created a uniform program, known as the Supplemental Security Income (SSI) program, for aid to qualified aged, blind, and disabled persons. 86 Stat. 1465, 42 U. S. C. § 1381 et seq. (1970 ed., Supp. V). This federally administered program replaced the federal-state programs of Old Age Assistance, 49 Stat. 620, 42 U. S. C. § 301 et seq.; Aid to the Blind, 49 Stat. 645, 42 U. S. C. § 1201 et seq.; Aid to the Disabled, 64 Stat. 555, 42 U. S. C. § 1351 et seq.; and Aid to the Aged, Blind, and Disabled, 42 U. S. C. § 1381 et seq.

The exclusion of Puerto Rico in the amended program is apparent in the definitional section. Section 1611 (f) of the Act, as set forth in 42 U. S. C. § 1382 (f) (1970 ed., Supp. V), states that no individual is eligible for benefits during any month in which he or she is outside the United States. The Act defines “the United States” as “the 50 States and the District of Columbia.” § 1614 (e), as set forth in 42 U. S. C. § 1382c (e) (1970 ed., Supp. V). The repeal of the pre-existing programs did not apply to Puerto Rico. Thus persons in Puerto Rico are not eligible to receive SSI benefits, but are eligible to receive benefits under the pre-existing programs.

Appellee Torres received SSI benefits while residing in Connecticut; the benefits were discontinued when he moved to Puerto Rico. Similarly, appellees Colon and Vega received benefits as residents of Massachusetts and New Jersey, respectively, but lost them on moving to Puerto Rico.

Torres filed a complaint in the District Court of Puerto Rico claiming that the exclusion of Puerto Rico from the SSI program was unconstitutional, and a three-judge court was convened to adjudicate the suit. Viewing the geographic limitations in the law as an interference with the constitutional right of residents of the 50 States and the District of Columbia to travel, the court searched for a compelling governmental interest to justify such interference. Finding none, the court held §§ 1611 (f) and 1614 (e) unconstitutional as applied to Torres. Torres v. Mathews, 426 F. Supp. 1106. Soon after that decision appellees Colon and Vega also sued in the Puerto' Rico District Court. Relying on the Torres decision, a single judge enjoined the Social Security Administration from discontinuing their SSI benefits on the basis of their change of residency to Puerto Rico.

II

In Shapiro v. Thompson, 394 U. S. 618 (1969), and Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974), this Court held that laws prohibiting newly arrived residents in a State or county from receiving the same vital benefits as other residents unconstitutionally burdened the right of interstate travel. As the Court said in Memorial Hospital, “the right of interstate travel must be seen as insuring new residents the same right to vital governmental benefits and privileges in the States to which they migrate as are enjoyed by other residents.” Id., at 261.

In the present cases the District Court altogether transposed that proposition. It held that the Constitution requires that a person who travels to Puerto Rico must be given benefits superior to those enjoyed by other residents of Puerto Rico if the newcomer enjoyed those benefits in the State from which he came. This Court has never held that the constitutional right to travel embraces any such doctrine, and we decline to do so now. Such a doctrine would apply with equal force to any benefits a State might provide for its residents, and would require a State to continue to pay those benefits indefinitely to any persons who had once resided there. And the broader implications of such a doctrine in other areas of substantive law would bid fair to destroy the independent power of each State under our Constitution to enact laws uniformly applicable to all of its residents.

If there ever could be a case where a person who has moved from one State to another might be entitled to invoke the law of the State from which he came as a corollary of his constitutional right to travel, this is surely not it. For we deal here with a constitutional attack upon a law providing for governmental payments of monetary benefits. Such a statute “is entitled to a strong presumption of constitutionality.” Mathews v. De Castro, 429 U. S. 181, 185 (1976). “So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket.” Jefferson v. Hackney, 406 U. S. 535, 546 (1972). See also Califano v. Jobst, 434 U. S. 47, 53-54; Califano v. Goldfarb, 430 U. S. 199, 210 (1977); Helvering v. Davis, 301 U. S. 619, 640 (1937).

The judgments are reversed.

So ordered.

Mr. Justice Brennan would affirm.

Mr. Justice Marshall would note probable jurisdiction and set these cases for oral argument.

       This Court’s jurisdiction is based on 28 U. S. C. § 1252.

       The SSI benefits are significantly larger.

       The record does not show whether the appellees applied for benefits under the pre-existing programs while in Puerto Rico.

         The complaint had also relied on the equal protection component of the Due Process Clause of the Fifth Amendment in attacking the exclusion of Puerto Rico from the SSI program. Acceptance of that claim would have meant that all otherwise qualified persons in Puerto Rico are entitled to SSI benefits, not just those who received such benefits before moving to Puerto Rico. But the District Court apparently acknowledged that Congress has the power to treat Puerto Rico differently, and that every federal program does not have to be extended to it. Puerto Rico has a relationship to the United States “that has no parallel in our history.” Examining Board v. Flores de Otero, 426 U. S. 572, 596 (1976). Cf. Balzac v. Porto Rico, 258 U. S. 298 (1922); Dorr v. United States, 195 U. S. 138 (1904); Downes v. Bidwell, 182 U. S. 244 (1901). See Leibowitz, The Applicability of Federal Law to the Commonwealth of Puerto Rico, 56 Geo. L. J. 219 (1967); Hector, Puerto Rico: Colony or Commonwealth?, 6 N. Y. U. J, Int’l L. & Pol. 115 (1973).

       The opinion of the District Court is unreported.

       The constitutional right of interstate travel is virtually unqualified. United States v. Guest, 383 U. S. 745, 757-758 (1966); Griffin v. Breckenridge, 403 U. S. 88, 105-106 (1971). By contrast the “right” of international travel has been considered to be no more than an aspect of the “liberty” protected by the Due Process Clause of the Fifth Amendment. Kent v. Dulles, 357 U. S. 116, 125 (1958); Aptheker v. Secretary of State, 378 U. S. 500, 505-506 (1964). As such this “right,” the Court has held, can be regulated within the bounds of due process. Zemel v. Rusk, 381 U. S. 1 (1965). For purposes of this opinion we may assume that there is a virtually unqualified constitutional right to travel between Puerto Rico and any of the 50 States of the Union.

         At least three reasons have been advanced to explain the exclusion of persons in Puerto Rico from the SSI program. First, because of the unique tax status of Puerto Rico, its residents do not contribute to the public treasury. Second, the cost of including Puerto Rico would be extremely great — an estimated $300 million per year. Third, inclusion in the SSI program might seriously disrupt the Puerto Rican economy. Department of Health, Education, and Welfare, Report of the Undersecretary’s Advisory Group on Puerto Rico, Guam and the Virgin Islands 6 (Oct. 1976).