source: Caselaw Access Project

author: Mr. Justice Powell

license: Public Domain

text:
    SLOAN, TREASURER OF PENNSYLVANIA, et al. v. LEMON et al.
    No. 72-459.
    Argued April 16, 1973 —
    Decided June 25, 1973

    Powell, J., delivered the opinion of the Court, in which Douglas, BrenNan, Stewart, Marshall, and Blackmun, JJ., joined. Burger, C. J., filed a dissenting opinion, in which White and Rehnquist, JJ., joined, ante, p. 798. White, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, ante, p. 813.

      Israel Packet, Attorney General of Pennsylvania, argued the cause for appellant Sloan in No. 72-459. With him on the brief were Peter W. Brown and J. Justin Blewitt, Jr., Deputy Attorneys General. William Bentley Ball argued the cause for appellants Diaz et al. in No. 72-459. With him on the briefs were Joseph G. Skelly, James E. Gallagher, Jr., C. Clark Hodgson, Jr., and William D. Valente. Henry T. Reath argued the cause and filed a brief for appellant in No. 72-620.

      Theodore R. Mann argued the cause for appellees in both cases. With him on the brief was Leo Pfeffer.

      Together with No. 72-620, Crouter v. Lemon et al., also on appeal from the same court.

       Briefs of amici curiae urging reversal in both cases were filed by Acting Solicitor General Friedman, Assistant Attorney General Wood, Harriet S. Shapiro, Walter H. Fleischer, and Thomas G. Wilson for the United States; by Joseph J. Carlin for the city of Philadelphia; and by Ethan A. Hitchcock for the National Association of Independent Schools, Inc.
      Briefs of amici curiae urging affirmance in both eases were filed by Stephen J. Poliak and David Rubin for the National Education Association et al., and by Samuel Rabinove, Arnold Forster, Paul Hartman, Joseph B. Robison, Beverly Coleman, and Elliot Rothen-berg for the American Jewish Committee et al.

   Mr. Justice Powell

delivered the opinion of the Court.

On June 28, 1971, this Court handed down Lemon v. Kurtzman, 403 U. S. 602, in which Pennsylvania’s “Nonpublic Elementary and Secondary Education Act” was held unconstitutional as violative of the Establishment Clause of the First Amendment. That law authorized the State to reimburse nonpublic, sectarian schools for their expenditures on teachers’ salaries, textbooks, and instructional materials used in specified “secular” courses. The Court’s ruling was premised on its determination that the restrictions and state supervision required to guarantee that the specified aid would benefit only the nonreligious activities of the schools would foster “excessive entanglement” between government and religion. Id., at 620-622.

On August 27, 1971, the Pennsylvania General Assembly promulgated a new aid law, entitled the “Parent Reimbursement Act for Nonpublic Education,” providing funds to reimburse parents for a portion of tuition expenses incurred in sending their children to nonpublic schools. Shortly thereafter, this suit, challenging the enactment and seeking declaratory and injunctive relief, was filed in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs were Pennsylvania residents and taxpayers who had paid the state tax used to finance the aid program, and at least one plaintiff was also the parent of a child attending a public school within the State. The State Treasurer was named as the defendant and was sued in that capacity. Motions to intervene on the side of the State were granted to a number of parents whose children were enrolled in nonpublic schools and who were therefore entitled to payments under the challenged law.

The defendant and intervenors filed a motion to dismiss the complaint for failure to state a claim upon which relief might be granted. The motion was considered by a properly constituted three-judge District Court. On April 6, 1972, the panel denied the motion in a full opinion explicating its views and holding that the law violated the Establishment Clause. 340 F. Supp. 1356. On the basis of that opinion, the District Court subsequently issued an order granting plaintiffs’ motion for summary judgment and permanently enjoining the disbursement of any funds under the Act. Its order also ruled that the Act could not properly be viewed as containing a separable provision for aid to parents whose children attended nonsectarian, nonpublic schools.

Direct appeals were docketed in this Court by the State Treasurer and by the several intervenors. We noted probable jurisdiction, consolidated the appeals for oral argument, and scheduled the cases to be argued with the several appeals in a case from New York involving an issue in common with this case. 410 U. S. 907 (1973). We have today held in Committee for Public Education & Religious Liberty v. Nyquist, ante, p. 756, that New York's tuition reimbursement legislation has the impermissible effect of advancing religious institutions and is therefore unconstitutional under the Establishment Clause. Because we find no constitutionally significant difference between New York’s and Pennsylvania’s programs, that decision compels our affirmance of the District Court’s decision here.

I

Pennsylvania’s “Parent Reimbursement Act for Nonpublic Education” provides for reimbursement to parents who pay tuition for their children to attend the State’s nonpublic elementary and secondary schools. Qualifying parents are entitled to receive $75 for each dependent enrolled in an elementary school, and $150 for each dependent in a secondary school, unless that amount exceeds the amount of tuition actually paid. The money to fund this program is to be derived from a portion of the revenues from the State’s tax on cigarette sales, and is to be administered by a five-member committee appointed by the Governor, known as the “Pennsylvania Parent Assistance Authority.” In an effort to avoid the “entanglement” problem that flawed its prior aid statute, Lemon v. Kurtzman, supra, the new legislation specifically precludes the administering authority from having any “direction, supervision or control over the policy determinations, personnel, curriculum, program of instruction or any other aspect of the administration or operation of any nonpublic school or schools.” Similarly, the statute imposes no restrictions or limitations on the uses to which the reimbursement allotments can be put by the qualifying parents.

Like the New York tuition program, the Pennsylvania law is prefaced by “legislative findings,” which emphasize its underlying secular purposes: parents who send their children to nonpublic schools reduce the total cost of public education; “inflation, plus sharply rising costs of education, now combine to place in jeopardy the ability of such parents fully to carry this burden”; if the State’s 500,000 nonpublic school children were to transfer to the public schools, the annual operating costs to the State would be $400 million, and the added capital costs would exceed $1 billion; therefore, “parents who maintain students in nonpublic schools provide a vital service” and deserve at least partial reimbursement for alleviating an otherwise “intolerable public burden.” We certainly do not question now, any more than we did two Terms ago in Lemon v. Kurtzman, the reality and legitimacy of Pennsylvania's secular purposes. See Committee for Public Education & Religious Liberty v. Ny-guist, ante, at 773.

We turn, then, to consider the new law's effect. As the case was decided in the District Court initially on defendant's and intervenors’ motions to dismiss, the court accepted as true plaintiffs’ allegation with respect to the identifying characteristics of the schools qualifying under the Act. 340 F. Supp., at 1359. Those characteristics are largely the same as the ones used by the District Court to describe typical sectarian schools in New York. Ante, at 767-768. In its subsequent order granting summary judgment in plaintiffs’ favor, the District Court indicated that “more than 90% of the children attending nonpublic schools in the Commonwealth of Pennsylvania are enrolled in schools that are controlled by religious organizations or that have the purpose of propagating and promoting religious faith.” App. 87a. This finding is consistent with the evidence in Lemon v. Kurtzman, in which the Court noted that more than 96% of the children attending nonpublic schools in Pennsylvania in 1969 “attend [ed] church-related schools, and most of these schools are affiliated with the Roman Catholic church.” 403 U. S., at 610.

For purposes of determining whether the Pennsylvania tuition reimbursement program has the impermissible effect of advancing religion, we find no constitutionally significant distinctions between this law and the one declared invalid today in Nyquist. Each authorizes the States to use tax-raised funds for tuition reimbursements payable to parents who send their children to nonpublic schools. Neither tells parents how they must spend the amount received. While the Pennsylvania grants are more generous ($75 to $150 as opposed to $50 to $100), and while Pennsylvania imposes no ceiling on the number of children for whom parents may claim tuition reimbursement or on the percentage of the tuition bill for which parents may be reimbursed, these considerations are irrelevant to the First Amendment question.

Neither the State Treasurer nor appellant-intervenor in No. 72-620 has suggested any way in which the present law might be distinguished from the one in question in Nyquist. The intervenors in No. 72-459 have, however, proffered a distinction which deserves discussion because* it serves to underline the basis for our ruling in these cases. Intervenors suggest that New York’s law might be differentiated on the ground that, because tuition grants there were available only to parents in an extremely low income bracket (less than $5,000 of taxable income), it would be reasonable to predict that the grant would, in fact, be used to pay tuition, rendering the parent a mere "conduit” for public aid to religious schools. Since Pennsylvania authorizes grants to. all parents of children in nonpublic schools — regardless of income level — it is argued that no such assumption can be made as to how individual parents will spend their reimbursed amounts.

Our decision, however, is not dependent upon any such speculation. Instead we look to the substance of the program, and no matter how it is characterized its effect remains the same. The State has singled out a class of its citizens for a special economic benefit. Whether that benefit be viewed as a simple tuition subsidy, as an incentive to parents to send their children to sectarian schools, or as a reward for having done so, at bottom its intended consequence is to preserve and support religion-oriented institutions. We think it plain that this is quite unlike the sort of “indirect” and “incidental” benefits that flowed to sectarian schools from programs aiding all parents by supplying bus transportation and secular textbooks for their children. Such benefits were carefully restricted to the purely secular side of church-affiliated institutions and provided no special aid for those who had chosen to support religious schools. Yet such aid approached the “verge” of the constitutionally impermissible. Everson v. Board of Education, 330 U. S. 1, 16 (1947). In Lemon v. Kurtzman, we declined to allow Everson to be used as the “platform for yet further steps” in granting assistance to “institutions whose legitimate needs are growing and whose interests have substantial political support.” 403 U. S., at 624. Again today we decline to approach or overstep the “precipice” against which the Establishment Clause protects. We hold that Pennsylvania's tuition grant scheme violates the constitutional mandate against the “sponsorship” or “financial support” of religion or religious institutions. Walz v. Tax Comm’n, 397 U. S. 664, 668 (1970).

II

Apart from the Establishment Clause issues central to this case, appellant-intervenors in No. 72-459 make an equal protection claim that was not directly ruled on by the District Court. These intervenors are 12 parents whose children attend nonpublic schools. Two parents, the Watsons, send their child to a nonsectarian school while the remainder send their children to sectarian schools. The District Court’s final order enjoined the State Treasurer from disbursing funds to any parents, irrespective of whether their children attended sectarian or nonsectarian schools. The court considered and rejected the argument that the state law should be treated “as containing a separable provision for aid to parents of children attending nonpublic schools that are not church related.” Although the Act contained a severability clause, the court reasoned that, in view of the fact that so substantial a majority of the law’s designated beneficiaries were affiliated with religious organizations, it could not be assumed that the state legislature would have passed the law to aid only those attending the relatively few nonsectarian schools.

Appellants ask this Court to declare the provisions severable and thereby to allow tuition reimbursement for parents of children attending schools that are not church related. If the parents of children who attend nonsectarian schools receive assistance, their argument continues, parents of children who attend sectarian schools are entitled to the same aid as a matter of equal protection. The argument is thoroughly spurious. In the first place, we have been shown no reason to upset the District Court’s conclusion that aid to the nonsectarian school could not be severed from aid to the sectarian. The statute nowhere sets up this suggested dichotomy between sectarian and nonsectarian schools, and to approve such a distinction here would be to create a program quite different from the one the legislature actually adopted. See Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U. S. 210, 234 (1932); cf. Tilton v. Richardson, 403 U. S. 672, 683-684 (1971) (plurality opinion). Even if the Act were clearly sever-able, valid aid to nonpublic, nonsectarian schools would provide no lever for aid to their sectarian counterparts. The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution. Having held that tuition reimbursements for the benefit of sectarian schools violate the Establishment Clause, nothing in the Equal Protection Clause will suffice to revive that program. Cf. Brusca v. State Board of Education, 405 U. S. 1050 (1972), aff’g 332 F. Supp. 275 (ED Mo. 1971).

Ill

In holding today that Pennsylvania’s post-Lemon, v. Kurtzman attempt to avoid the Establishment Clause’s prohibition against government entanglements with religion has failed to satisfy the parallel bar against laws having a primary effect that advances religion, we are not unaware that appellants and those who have endeavored to formulate systems of state aid to nonpublic education may feel that the decisions of this Court have, indeed, presented them with the “insoluble paradox” to which Mr. Justice White referred in his separate opinion in Lemon v. Kurtzman. 403 U. S., at 668. But if novel forms of aid have not readily been sustained by this Court, the “fault” lies not with the doctrines which are said to create a paradox but rather with the Establishment Clause itself: “Congress” and the States by virtue of the Fourteenth Amendment “shall make no law respecting an establishment of religion.” With that judgment we are not free to tamper, and while there is “room for play in the joints,” Walz v. Tax Comm’n, supra, at 669, the Amendment’s proscription clearly forecloses Pennsylvania’s tuition reimbursement program.

Affirmed.

[For dissenting opinion of The Chief Justice, see ante, p. 798.]

[For dissenting opinion of Mr. Justice White, see ante, p. 813.]

       No. 72-459, Sloan v. Lemon, is an appeal filed by the State Treasurer and by 12 intervening parents, two of whom are the Watsons — the parents of a child registered in a nonreligious, private school. No. 72-620, Crouter v. Lemon, is a separately docketed appeal initiated by another one of the intervenors.

       Pa. Laws 1971, Act 92, Pa. Stat. Ann., Tit. 24, §§ 5701-5709 (Supp. 1973-1974) (the entire enactment is printed in an appendix to the District Court’s opinion, 340 F. Supp. 1356, 1365-1368).

       Act 92, supra, § 5704.

         Id., §5702.

       These findings are similar to the ones which supported the Pennsylvania teacher-salary reimbursement law involved in Lemon v. Kurtzman. There the Court noted that the Act was passed “in response to a crisis that the Pennsylvania Legislature found existed in the State's nonpublic schools due to rapidly rising costs.” 403 U. S., at 609. The Court held that the State’s interest in enhancing “the quality of the secular education in all schools covered by the compulsory attendance laws” was clearly legitimate and “must therefore be accorded appropriate deference.” Id., at 613.

       Since the grants in this case are not limited to reimbursing only a percentage of the tuition bill, the argument could not be made here that the law contains any “statistical guarantee of neutrality,” Nyquist, ante, at 787.

       Brief for Appellants Diaz et al. 23-24. It was also alleged, as a ground of distinction between the Pennsylvania and New York tuition reimbursement grants, that there was less likelihood of political divisiveness under the Pennsylvania scheme because it is financed out of a self-perpetuating fund derived from the state cigarette tax. Thus, it is contended that no annual appropriations are required and there will be less likelihood of divisive political pressure for increased grants and expanded aid. We addressed the problem of potential political divisiveness in Part III of our opinion in Nyquist, ante, at 794 — 798. At most, the difference here is one in degree and one not likely to diminish perceptibly over the long term the inevitable demands for increased and expanded aid.

       Appellants have also sought to distinguish Nyquist on the ground that Pennsylvania’s legislation is more carefully drafted to avoid excessive administrative entanglements; the program is administered by an independent authority rather than by the Commissioner of Education, and its funds are not derived from the general revenues available for education but from a separate fund. Brief for Appellant Diaz et al. 24. Since Pennsylvania’s law falls under the second aspect of our test because its effect, inevitably, is to advance religion, we need not address this claimed distinction.

       Order of District Court, dated June 20, 1972, scheduling oral arguments on plaintiffs’ summary judgment motion and outlining the questions to be argued at that time, reprinted in App. 84a-85a.

       “Section 10. Severability. — If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid, in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.” Pa. Laws 1971, Act 92. (Emphasis supplied.)

       Final Order of District Court, dated July 21,1972, permanently enjoining enforcement of the Act, reprinted in App. 87a.

       See also Lemon v. Kurtzman, 403 U. S., at 640 (Douglas, J., concurring); Lemon v. Kurtzman, 411 U. S. 192, 203 n. 3 (1973).


author: Per Curiam. Mr. Justice Brennan,

text:
    ALEXANDER et al. v. VIRGINIA
    No. 71-1315.
    Argued October 19, 1972 —
    Decided June 25, 1973

      Stanley M. Dietz argued the cause and filed a brief for petitioners.

      James E. Kulp, Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief were Andrew P. Miller, Attorney General, and Robert E. Shepherd, Jr., Assistant Attorney General.

        Ralph J. Schwarz, Jr., Mel S. Friedman, and Joel Hirschhorn filed a brief for the First Amendment Lawyers’ Association as amicus curiae urging reversal.

   Per Curiam.

The judgment of the Supreme Court of Virginia is vacated and the case is remanded for further proceedings not inconsistent with Miller v. California, ante, at 23-25, Paris Adult Theatre I v. Slaton, ante, at 58 n. 7, and Heller v. New York, ante, p. 483. See United States v. 12 200-ft. Reels of Film, ante, at 129-130 and n. 7. A trial by jury is not constitutionally required in this state civil proceeding pursuant to § 18.1-236.3 of the Code of Virginia, 1950, as amended. See Melancon v. McKeithen, 345 F. Supp. 1025, 1027, 1035-1045, 1048 (ED La.), aff'd sub nom. Mayes v. Ellis, 409 U. S. 943 (1972), and Hill v. Mc- Keithen, 409 U. S. 943 (1972). Cf. Kingsley Books, Inc. v. Brown, 354 U. S. 436, 443-444 (1957).

Vacated and remanded.

Mr. Justice Douglas would reverse the judgment of the Supreme Court of Virginia. See Miller v. California, ante, p. 37 (Douglas, J., dissenting).

Mr. Justice Brennan,

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

I would reverse the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with my dissenting opinion in Paris Adult Theatre I v. Slaton, ante, p. 73. See my dissent in Miller v. California, ante, p. 47.


author: Per Curiam.

text:
    FAUSNER v. COMMISSIONER OF INTERNAL REVENUE
    No. 72-1396.
    Decided June 25, 1973
   Per Curiam.

Petitioner Donald Fausner, a commercial airlines pilot, who regularly traveled by private automobile from his home to his place of employment and back again, a round trip of approximately 84 miles, sought to deduct the entire cost of commuting under § 162 (a) of the Internal Revenue Code of 1954, on the theory that his automobile expenses were incurred to transport his flight bag and overnight bag and thus constituted ordinary and necessary business expenses. It is not disputed that petitioner would have commuted by private automobile regardless of whether he had to transport his two bags. The Tax Court disallowed the deduction in toto. On appeal, the Court of Appeals for the Fifth Circuit affirmed the decision of the Tax Court. 472 F. 2d 561.

This issue has been addressed by two other circuits, Sullivan v. Commissioner, 368 F. 2d 1007 (CA2 1966), and Tyne v. Commissioner, 385 F. 2d 40 (CA7 1967). Both of these circuits concluded that some allocable portion of the expenses incurred could be deducted as an ordinary and necessary business expense. The Court of Appeals for the Fifth Circuit refused to follow those cases on the ground that there was no rational basis for any allocation between the nondeductible commuting component and the deductible business component of the total expense.

As the Court of Appeals indicated, Congress has determined that all taxpayers shall bear the expense of commuting to and from work without receiving a deduction for that expense. We cannot read § 262 of the Internal Revenue Code as excluding such expense from “personal” expenses because by happenstance the taxpayer must carry incidentals of his occupation with him.' Additional expenses may at times be incurred for transporting job-required tools and material to and from work. Then an allocation of costs between “personal” and “business” expenses may be feasible. But no such allocation can be made here.

We grant the petition for certiorari and affirm the judgment below.

Mr. Justice Blackmun would grant the petition for a writ of certiorari and set the case for oral argument.

       “Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living, or family expenses.” 26 U. S. C. § 262.

       See Rev. Rui. 63-100, 1963-1 Cum. Bull. 34.

       Sec. 162 (a) of the Internal Revenue Code of 1954, 26 U. S. C. §162 (a).


text:
    June 25, 1973
    No. 72-984.
    GAF Corp. v. Circle Floor Co., Inc., et al.
   C. A. 2d Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    No. 72-6640.
    Walker v. Coiner, Warden.
   C. A. 4th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    No. 72-6746.
    Johnson v. Delaware.
   Sup. Ct. Del. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    No. 72-166.
    Kelly et al. v. Bumpers, Governor of Arkansas, et al.
   Affirmed on appeal from D. C. E. D. Ark.


text:
    No. 72-452.
    Powell v. West, Governor of South Carolina, et al.
   Affirmed on appeal from D. C. S. C.

Mr. Justice Douglas dissents from affirmance.


text:
    No. 72-1139.
    Grit et al. v. Wolman et al.
   Affirmed on appeal from D. C. S. D. Ohio. For the reasons stated in the dissenting opinions in Committee for Public Education & Religious Liberty v. Nyquist and companion cases, and Sloan v. Lemon and companion case, ante, pp. 798, 805, 813, Mr. Justice White would reverse the judgment of the District Court.


text:
    No. 72-1170.
    Elder v. Rampton, Governor of Utah, et al.
   Affirmed on appeal from D. C. Utah.

Mr. Justice Douglas dissents from affirmance.


text:
    No. 72-1360.
    Nelson, Attorney General of Arizona, et al. v. Miranda et al.
   Appeal from D. C. Ariz. Motion of appellee Miranda for leave to proceed in forma pauperis granted. Judgment affirmed.


text:
    No. 70-41.
    Meyer et al. v. Austin et al.
   Appeal from D. C. M. D. Fla. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 72-1026.
    Durham v. McLeod, Attorney General of South Carolina, et al.
   Appeal from Sup. Ct. S. C. dismissed for want of substantial federal question.

Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall would note probable jurisdiction and set case for oral argument.


text:
    No. 72-1223.
    Deskins v. Kentucky.
   Appeal from Ct. App. Ky. dismissed for want of substantial federal question.


text:
    No. 72-205.
    Stevenson et al. v. West, Governor of South Carolina, et al.
   Appeal from D. C. S. C. Judgment reversed. Swann v. Adams, 385 U. S. 440 (1967); and Reynolds v. Sims, 377 U. S. 533 (1964).


text:
    No. 70-1.
    Grove Press, Inc., et al. v. Flask et al.
   Appeal from D. C. N. D. Ohio. Judgment vacated and case remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Brennan, joined by Mr. Justice Stewart and Mr. Justice Marshall, would vacate the judgment and remand case for further proceedings not inconsistent with his dissent in Paris Adult Theatre I v. Slaton, ante, p. 73. See Miller v. California, ante, p. 47. Mr. Justice Douglas took no part in the consideration or decision of this appeal.


text:
    No. 70-10.
    Florida ex rel. Shevin, Attorney General of Florida, et al. v. M & W Theatres, Inc., et al.
   Appeal from D. C. N. D. Fla. Judgment vacated and case remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Douglas would vacate the judgment and remand case to determine whether after a delay of over three years the case is moot. Mr. Justice Brennan, joined by Mr. Justice Stewart and Mr. Justice Marshall, would vacate the judgment and remand case for further proceedings not inconsistent with his dissent in Paris Adult Theatre I v. Slaton, ante, p. 73. See Miller v. California, ante, p. 47.


text:
    No. 70-23.
    No. 70-30.
    Thompson et al. v. United Artists Theatre Circuit, Inc.; and United Artists Theatre Circuit, Inc. v. Thompson et al.
   Appeals from D. C. W. D. Ark. Judgment vacated and cases remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Douglas would affirm the judgment in No. 70-23. He would reverse the judgment in No. 70-30. See Miller v. California, ante, p. 37. Mr. Justice Brennan, joined by Mr. Justice Stewart and Mr. Justice Marshall, would vacate the judgment and remand cases for further consideration in light of Mitchum v. Foster, 407 U. S. 225 (1972).

Reported below: 316 F. Supp. 815.


text:
    No. 70-24.
    Grove Press, Inc. v. Bailey, Sheriff.
   Appeal from D. C. N. D. Ala. Judgment vacated and case remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Brennan, joined by Mr. Justice Stewart and Mr. Justice Marshall, would vacate the judgment and remand case for further consideration in light of Mitchum v. Foster, 407 U. S. 225 (1972). Mr. Justice Douglas took no part in the consideration or decision of this appeal.


text:
    No. 70-25.
    No. 71-515.
    Spivak v. Shriver et al. Art Theater Guild, Inc., dba Studio Art Theater, et al. v. Tennessee ex rel. Rhodes. Motion Picture Film Entitled “Vixen,” et al. v. Ohio ex rel. Keating. Watkins v. South Carolina. Star, dba Gayety Books, Inc., et al. v. Preller et al. Blair v. Ohio.
   Appeal from D. C. M. D. Tenn. Reported below: 315 F. Supp. 695;

No: 71-599.

No. 72-683.

No. 72-815.

No. 72-1256.

Appeal from Sup. Ct. Tenn. Reported below: 225 Tenn. 399, 469 S. W. 2d 669;

Appeal from Sup. Ct. Ohio. Reported below: 27 Ohio St. 2d 278, 272 N. E. 2d 137;

Appeal from Sup. Ct. S. C. Reported below: 259 S. C. 185, 191 S. E. 2d 135;

Appeal from D. C. Md. Reported below: 352 F. Supp. 530; and

Appeal from Sup. Ct. Ohio. Reported below: 32 Ohio St. 2d 237, 291 N. E. 2d 451. Motion of appellants to strike appellee's supplemental brief in No. 71-599 denied. Judgments vacated and cases remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Douglas would reverse the judgments. See Miller v. California, ante, p. 37. Mr. Justice Brennan, joined by Mr. Justice Stewart and Mr. Justice Marshall, would vacate the judgments and remand cases for further proceedings not inconsistent with his dissent in Paris Adult Theatre I v. Slaton, ante, p. 73. See Miller v. California, ante, p. 47.


text:
    No. 70-35.
    No. 71-304.
    Austin et al. v. Meyer et al. Byrne, District Attorney of Suffolk County v. P. B. I. C., Inc., et al. Davis v. Parker.
   Appeal from D. C. M. D. Fla. Reported below: 319 F. Supp. 457;

No. 71-1318.

Appeal from D. C. Mass. Reported below: 313 F. Supp. 757; and

Appeal from D. C. C. D. Cal. Judgments vacated and cases remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Douglas would affirm the judgments. Mr. Justice Brennan, joined by Mr. Justice Stewart and Mr. Justice Marshall, would vacate the judgments and remand the cases for further proceedings not inconsistent with his dissent in Paris Adult Theatre I v. Slaton, ante, p. 73. See Miller v. California, ante, p. 47.


author: Mr. Justice White,

text:
    No. 71-1190.
    Summers et al. v. Cenarrusa, Secretary of State of Idaho, et al.
   Appeal from D. C. Idaho. Judgment vacated and case remanded for further consideration in light of Mahan v. Howell, 410 U. S. 315 (1973); Gaffney v. Cummings, 412 U. S. 735 (1973); and White v. Regester, 412 U. S. 755 (1973).

Mr. Justice White,

with whom The Chief Justice joins,

dissenting.

This case should be affirmed. The jurisdictional statement fails to identify any substantial factual or legal error committed by the District Court and does not warrant a remand for further consideration in the light of recently decided reapportionment cases.

Appellants complain of a maximum total deviation of 19.41% from the ideal population figure, resulting from one district’s allegedly being 10.62% overrepresented and another 8.79% underrepresented (appellants assert the deviations actually were 10.57% overrepresentation and 8.88% underrepresentation, with a total variation of 19.45%). The jurisdictional statement asserts that the 10.62% overrepresentation exists in District No. 22 and that it was sought to be justified by the State on the grounds that the population of Mountain Home Air Force Base, located in the District, had increased by 2,000 since the 1970 census, that an irrigation project would cause further population growth in the District, and that detaching certain areas from a particular county was undesirable.

The appellants assert, in conclusory manner, that “the population growth at Mountain Home Air Force Base is disputed” and that “the anticipated growth in population was not predicted with a high degree of accuracy.” The District Court, however, accepted the justification, specifically referring to increases in population as being among the justifications offered for various population deviations. 342 F. Supp. 288, 289 (Idaho 1972). In any event, I find no basis in the jurisdictional statement for our disagreeing with the District Court or with the legislature. If there had been a 2,000 increase in population since 1970 the legislature was quite right in taking it into account, and the alleged deviation disappears. Also, if population increases were correctly anticipated, they need not have been ignored.

The alleged underrepresentation is claimed to exist in District No. 28 because of improper exclusion from the population count of “out-of-state and foreign students” attending a private college within the District. Appellants complain that there should have been more effort to determine whether each individual student so excluded had in fact satisfied the residence requirements for voting. The District Court noted and accepted the justifying factor of the “exclusion of non-resident college students, which were included in the 1970 census.” Id., at 289. There is no basis for upsetting the legislative estimate as to how many students at this particular college should be treated as nonresident, nonvoting persons making up part of the 1970 census count. Thus, again, appellants fail to present a sound reason for overturning the judgment of the District Court.

The jurisdictional statement does not specify the extent of the deviation in any other specific district. It is said that “11 legislative districts are underrepresented by 3 percent or more” and that “7 legislative districts are overrepresented by 3 percent or more.” But the extent of the deviation in any district is not presented; there is no indication that the deviation in any particular district would exceed those that are permissible without further justification. Gaffney v. Cummings, 412 U. S. 735 (1973), and White v. Regester, 412 U. S. 755 (1973).

Finally, appellants assert that Custer County should have been included in District No. 9 rather than in District No. 20 and that it is no excuse that a wilderness area separated Custer County from the main population centers of District No. 9. Again, however, appellants give no indication of whether or to what extent either District No. 9 or District No. 20 varied in population from the ideal district.

Insofar as can be ascertained from the jurisdictional statement, therefore, it appears that maintaining county or other local subdivision lines had very little to do with any of the population deviations in specific districts that are challenged by appellants. Appellants have not presented a case that warrants a remand in light of Mahan v. Howell, 410 U. S. 315 (1973), Gaffney, or White.


text:
    No. 72-76.
    Fortson, Secretary of State of Georgia v. Millican et al.
   Appeal from D. C. N. D. Ga. Judgment vacated and case remanded for further consideration in light of Gaffney v. Cummings, 412 U. S. 735 (1973); and White v. Regester, 412 U. S. 755 (1973).


text:
    No. 72-853.
    United States v. B & H Dist. Corp. et al.
   Appeal from D. C. W. D. Wis. Judgment vacated and case remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Douglas would affirm. Mr. Justice Brennan, joined by Mr. Justice Stewart and Mr. Justice Marshall, dissents and would affirm the judgment of dismissal of the indictment charging appellees with a violation of 18 U. S. C. § 1462. See Miller v. United States, ante, p. 47.


text:
    No. 72-932.
    Bigelow v. Virginia.
   Appeal from Sup. Ct. Va. Judgment vacated and case remanded for further consideration in light of Roe v. Wade, 410 U. S. 113 (1973); and Doe v. Bolton, 410 U. S. 179 (1973).


author: Mr. Justice Brennan,

text:
    No. 72-1053.
    Michigan v. Bloss et al.
   Appeal from Sup. Ct. Mich. Judgment vacated and case remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Douglas would dismiss the appeal for want of a substantial federal question.

Mr. Justice Brennan,

joined by Mr. Justice Stewart and Mr. Justice Marshall,

dissenting.

In these criminal prosecutions for the sale of certain allegedly obscene publications in violation of Mich. Stat. Ann. §28.575 (1), the Supreme Court of Michigan reversed the convictions on the ground that suppression of sexually oriented expression cannot be reconciled with the guarantees of the First Amendment in the absence of evidence that the materials were distributed to juveniles or offensively exposed to unconsenting adults. In recognizing this limitation on state power the Michigan Supreme Court adopted an approach consistent with the one I have urged today. See Paris Adult Theatre I v. Slaton, ante, p. 73. Accordingly, I would dismiss the appeal for want of a substantial federal question, or if the jurisdictional statement be treated as a petition for cer-tiorari, would deny the petition.


text:
    No. 72-5939.
    Jimerson et al. v. New York State Department of Social Services et al.
   Appeal from D. C. W. D. N. Y. Motion for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for further consideration in light of New York Dept. of Social Services v. Dublino, ante, p. 405.

Mr. Justice Douglas would note probable jurisdiction and set case for oral argument.


text:
    No. 71-411.
    No. 71-701.
    No. 71-739.
    No. 71-773.
    No. 71-844.
    No. 71-984.
    No. 71-1201.
    No. 71-1347.
    Court v. Wisconsin. Reitano v. California. Village Books, Inc., et al. v. Marshall, State’s Attorney for Prince Georges County. Adult Book Store et al. v. Sensenbrenner, Mayor of Columbus. Marks et al. v. City of Newport. Wasserman v. Municipal Court of Alhambra Judicial District. Stroud v. Indiana. Mohney v. Indiana. Brown v. United States. Mitchum v. Tennessee. Johnson et al. v. Kentucky. Tobalina v. California. Adler et al. v. California. Getman et al. v. Minnesota. P. A. J. Theatres Corp. v. New York. Ridens et al. v. Illinois et al. Knoxville Bookmart, Inc., et al. v. Tennessee ex rel. Webster, District Attorney General. Price v. Virginia. Albini et al. v. Ohio et al. Macken et al. v. Ohio et al. Elster v. California. Goldstein v. Virginia. Keith v. California. Yannucci v. New York. G. I. Distributors, Inc., et al. v. Murphy, Police Commissioner of City of New York, et al. Little v. California. De Santis v. New Jersey. Winslow v. Virginia. Toutant v. California. Kuhns et al. v. California. Castner et al. v. California. Gulf States Theatres of Louisiana, Inc., et al. v. Louisiana et al. Bryant et al. v. North Carolina.
   Sup. Ct. Wis. Reported below: 51 Wis. 2d 683, 188 N. W. 2d 475;

App. Dept., Super. Ct. Cal., County of Orange;

Ct. App. Md. Reported below: 263 Md. 76, 282 A. 2d 126;

Sup. Ct. Ohio. Reported below: See 26 Ohio App. 2d 183, 271 N. E. 2d 13;

Ct. App. Ky.;

C. A. 9th Cir. Reported below: 449 F. 2d 787;

Sup. Ct. Ind. Reported below: 257 Ind. 204, 273 N. E. 2d 842;

Sup. Ct. Ind. Reported below: 257 Ind. 394, 276 N. E. 2d 517;

No. 71-1368.

No. 71-1458.

No. 71-1464.

No. 71-1587.

No. 71-1641.

No. 71-1674.

No. 71-1702.

No. 72-124.

No. 72-172.

No. 72-357.

No. 72-538.

No. 72-539.

No. 72-558.

No. 72-569.

No. 72-591.

No. 72-859.

C. A. 4th Cir.;

Ct. Crim. App. Tenn.;

Ct. App. Ky. Reported below: 475 S. W. 2d 893;

App. Dept., Super. Ct. Cal., County of Los Angeles;

App. Dept., Super. Ct. Cal., County of Sacramento. Reported below: 25 Cal. App. 3d Supp. 24, 101 Cal. Rptr. 726;

Sup. Ct. Minn. Reported below: 293 Minn. 11, 195 N. W. 2d 827;

App. Term, Sup. Ct. N. Y., 1st Jud. Dept.;

Sup. Ct. Ill. Reported below: 51 Ill. 2d 410, 282 N. E. 2d 691;

Sup. Ct. Tenn.;

Sup. Ct. Va. Reported below: 213 Va. 113, 189 S. E. 2d 324;

Sup. Ct. Ohio. Reported below: 31 Ohio St. 2d 27, 285 N. E. 2d 327;

Ct. App. Ohio, Summit County;

App. Dept., Super. Ct. Cal., County of San Francisco;

Sup. Ct. Va.;

App. Dept., Super. Ct. Cal., County of Los Angeles;

App. Term, Sup. Ct. N. Y., 2d & 11th Jud. Dists.;

No. 72-872.

No. 72-918.

No. 72-961.

No. 72-994.

No. 72-1062.

No. 72-1071.

No. 72-1072.

No. 72-1221.

No. 72-1330.

C. A. 2d Cir. Reported below: 469 F. 2d 752;

App. Dept., Super. Ct. Cal., County of Orange;

Super. Ct. N. J.;

Sup. Ct. Va.;

App. Dept., Super. Ct. Cal., County of San Bernardino;

App. Dept., Super. Ct. Cal., County of Santa Cruz;

App. Dept., Super. Ct. Cal., County of Santa Cruz;

Sup. Ct. La. Reported below: 270 So. 2d 547; and

Ct. App. N. C. Reported below: 16 N. C. App. 456, 192 S. E. 2d 693.


text:
    No. 70-43.
    No. 71-40.
    No. 71-182.
    No. 71-1517.
    No. 72-154.
    Miller et al. v. United States. Kaplan v. United States. Ewing, dba Action Publishing Co. v. United States. Miller v. United States. Cangiano et al. v. United States.
   C. A. 9th Cir. Reported below: 431 F. 2d 655;

Ct. App. D. C. Reported below: 277 A. 2d 477;

C. A. 10th Cir. Reported below: 445 F. 2d 945;

C. A. 9th Cir. Reported below: 455 F. 2d 899; and

C. A. 2d Cir. Reported below: 475 F. 2d 1393. Certiorari granted, judgments vacated, and cases remanded to the respective United States Courts of Appeals for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Me. Justice Douglas would grant cer-tiorari and reverse the judgments. See Miller v. California, ante, p. 37.

Mr. Justice Brennan,

joined by Mr. Justice Stewart and Mr. Justice Marshall,

dissenting.

Miller v. United States, No. 70-43, involves convictions under 18 U. S. C. §§ 1461 and 1462. Kaplan v. United States, No. 71-40, involves a conviction under D. C. Code Ann. §22-2001 (Supp. III, 1970). Ewing v. United States, No. 71-182, and Miller v. United States, No. 71-1517, involve convictions under 18 U. S. C. § 1461. Cangiano v. United States, No. 72-154, involves convictions under 18 U. S. C. § 1465. Under the view expressed in my dissent in Paris Adult Theatre I v. Slaton, ante, p. 73, it is clear that the statutes involved in these cases cannot stand. Whatever the extent of the Federal Government’s power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, each of these statutes is clearly overbroad and unconstitutional on its face. See my dissents in Miller v. California, ante, p. 47, and United States v. Orito, ante, p. 147. I would therefore grant the petition for certiorari ■ in each case and reverse each judgment of conviction.


text:
    No. 71-1353.
    No. 71-6287.
    Romanus et al. v. California. Gower v. United States.
   Ct. App. Cal., App. Dist.; and

C. A. D. C. Cir. Motions to dispense with printing petitions granted. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Douglas would grant certiorari and reverse the judgment in each case. See Miller v. California, ante, p. 37. Mr. Justice Brennan, joined by Mr. Justice Stewart and Mr. Justice Marshall, would grant certiorari, vacate the judgments, and remand cases for further proceedings not inconsistent with his dissent in Paris Adult Theatre I v. Slaton, ante, p. 73. See Miller v. California, ante, p. 47.


text:
    No. 71-728.
    No. 72-1120.
    Davison v. Florida. Cote v. United States.
   Sup. Ct. Fla. Reported below: 251 So. 2d 841; and

C. A. 5th Cir. Reported below: 470 F. 2d 755. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Douglas would grant certiorari and reverse the judgment in each case. See Miller v. California, ante, p. 37. Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall would deny certiorari.


text:
    No. 71-1293.
    No. 72-5329.
    Foerster v. United States. Bowen v. United States.
   C. A. 9th Cir. Reported below: 455 F. 2d 981; and

C. A. 9th Cir. Reported below: 462 F. 2d 347. Motion of petitioner in No. 72—5329 for leave to proceed in forma pauperis granted. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of Almeida-Sanchez v. United States, ante, p. 266.


text:
    No. 72-190.
    Smith et al. v. Board of Education, Independent School District No. 1, Tulsa County, Oklahoma, et al.
   C. A. 10th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Keyes v. School District No. 1, ante, p. 189.

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


text:
    No. 72-1446.
    United States v. Palladino et al.
   C. A. 1st Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; Kaplan v. California, ante, p. 115; United States v. 12 200-ft. Reels Film, ante, p. 123; United States v. Orito, ante, p. 139; Heller v. New York, ante, p. 483; Roaden v. Kentucky, ante, p. 496; and Alexander v. Virginia, ante, p. 836.

Mr. Justice Douglas would deny certiorari. Mr. Justice Brennan, joined by Mr. Justice Stewart and Mr. Justice Marshall, would grant the petition, vacate the judgment, and remand case for further proceedings not inconsistent with his dissent in Paris Adult Theatre I v. Slaton, ante, p. 73. See Miller v. California, ante, p. 47.


text:
    No. A-1164.
    Marburger, Commissioner of Education of New Jersey, et al. v. Public Funds for Public Schools of New Jersey et al.
   D. C. N. J. Application for stay of injunction heretofore granted by this Court on May 29, 1973 [412 U. S. 916], vacated. For the reasons stated in the dissenting opinions in Committee for Public Education & Religious Liberty v. Ny- quist, and companion cases, and Sloan v. Lemon, and companion case, ante, pp. 798, 805, 813, The Chief Justice, Mr. Justice White, and Mr. Justice Rehnquist dissent from the vacation of stay of the District Court’s preliminary injunction.


text:
    No. A-1220 (72-6675).
    Leamer v. DeRamus, Correctional Superintendent.
   C. A. 3d Cir. Application for bail denied.


text:
    No. A-1233 (72-6900).
    Doe v. Planned Parenthood Association of Utah.
   Appeal from Sup. Ct. Utah. Application for stay presented to Mr. Justice Brennan, and by him referred to the Court, denied.


text:
    No. A-1234 (72-562).
    No. A-1239 (72-535).
    Aberdeen & Rockfish Railroad Co. et al. v. Students Challenging Regulatory Agency Procedures (SCRAP) et al.; and Interstate Commerce Commission v. Students Challenging Regulatory Agency Procedures (SCRAP) et al.
   D. C. D. C. Application of SCRAP et al. to vacate stay entered by The Chief Justice on June 8, 1973, denied.

Mr. Justice Douglas would vacate the stay. Mr. Justice Powell took no part in the consideration or decision of this application.


text:
    No. A-1260 (72-6871).
    Bell v. United States.
   C. A. 7th Cir. Application for stay presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    No. A-1273 (72-1712).
    In re Horowitz.
   C. A. 2d Cir. Application for stay presented to Mr. Justice Marshall, and by him referred to the Court, denied.

Mr. Justice Douglas and Mr. Justice Brennan would grant the application.


text:
    No. 36,
    Orig.
    Texas v. Louisiana.
   Motion of the State of Louisiana to enlarge the reference to the Special Master to fix the extension of Louisiana’s island boundary into the Gulf of Mexico between Louisiana, Texas, and the United States to the extent of Louisiana’s title under the Submerged Lands Act, or other alternative relief, is referred to the Special Master. The Solicitor General is invited to file a brief expressing the views of the United States. In due course, after receipt of the brief of the United States, the Special Master shall submit his report to the Court on the motion. [See 410 U. S. 702.]


text:
    No. 64,
    Orig.
    New Hampshire v. Maine.
   Motion for preliminary injunction denied.

Mr. Justice Douglas and Mr. Justice Blackmun would grant the motion conditioned upon the imposition upon all fishermen operating in the disputed area of the more onerous of the conditions presently imposed by either New Hampshire or Maine.


text:
    No. 72-955.
    Spomer, State’s Attorney of Alexander County, Illinois v. Littleton et al.
   C. A. 7th Cir. [Certiorari granted, 411 U. S. 915.] Motion of the Attorney General of California for leave to participate in oral argument as amicus curiae and for additional time for oral argument denied.


text:
    No. 72-1513.
    Shea, Executive Director, Department of Social Services of Colorado, et al. v. Vialpando.
   C. A. 10th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 72-1613.
    Huffman v. United States District Court for the Northern District of Ohio et al.
   Application for stay or writ of injunction presented to Mr. Justice Stewart, and by him referred to the Court, and the motion to advance, denied. Motion of Pursue, Ltd., to participate as a party respondent granted.


text:
    No. 72-914.
    Scheuer, Administratrix v. Rhodes, Governor of Ohio, et al.
   C. A. 6th Cir. Certiorari granted and case set for oral argument with No. 72-1318 [immediately infra].


text:
    No. 72-1318.
    Krause, Administrator, et al. v. Rhodes, Governor of Ohio, et al.
   C. A. 6th Cir. Certiorari granted and case set for oral argument with No. 72-914 [immediately supra].


text:
    No. 71-1240.
    Bird v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 71-6355.
    Bamberger v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 71-6579.
    Sheffield v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 71-6812.
    Reed v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 71-6879.
    Schlomann v. Moseley, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 72-84.
    McDaniel v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-341.
    Guinn, Superintendent of Schools, et al. v. Kelly et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-667.
    School Board of the City of Newport News, Virginia, et al. v. Thompson et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-668.
    Cisneros et al. v. Corpus Christi Independent School District et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-1197.
    Barron v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-1450.
    Board of School Commissioners of the City of Indianapolis et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-5367.
    Johnson v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-5379.
    Brandon v. New Jersey.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-5480.
    Conway v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 72-6057.
    No. 72-6299.
    Greeley v. United States; and Greeley v. United States.
   C. A. 3d Cir. Certiorari denied. Reported below: 471 F. 2d 25.


text:
    No. 72-6099.
    Singleton v. Kansas.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 72-6101.
    Johnson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6185.
    Searcy v. Pinnock.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6265.
    Clayton v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 72-6310.
    Wimberley v. Richardson, Secretary of Defense, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-6396.
    Scruggs v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 71-572.
    School District No. 1, Denver, Colorado, et al. v. Keyes et al.
   C. A. 10th Cir. Certiorari denied.

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


text:
    No. 72-48.
    Lawlor et al. v. Board of Education of the City of Chicago et al.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Douglas would grant cer-tiorari.


text:
    No. 72-1023.
    Thomas v. Washington.
   Ct. App. Wash. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-1316.
    Swinney v. Untreiner, Sheriff, et al.
   Sup. Ct. Fla. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-5375.
    Marquez v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-5998.
    Coleman v. United States.
   Ct. App. D. C. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-6377.
    Holt, aka Summers v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-385.
    Tate Educational Foundation, Inc. v. McNeal et al.
   C. A. 5th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 72-835.
    Pettibone, Director, Division of Parole and Probation, Department of Public Safety and Correctional Services of Maryland v. Woodall.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 72-1187.
    Combs, Superintendent, Grand Prairie Independent School District, et al. v. Johnson et al.
   C. A. 5th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 72-1473.
    United States v. Rothfelder.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 72-1474.
    United States v. King.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 72-649.
    Corpus Christi Independent School District et al. v. Cisneros et al.
   C. A. 5th Cir. Certiorari denied.

The Chief Justice, Mr. Justice Stewart, Mr. Justice Blackmun, and Mr. Justice Rehnquist, feeling that no useful purpose is to be served by-setting the case for oral argument, would nevertheless grant the petition, vacate the judgment, and remand case for further consideration in light of Keyes v. School District No. 1, ante, p. 189.


text:
    No. 72-739.
    Board of Education of the Little Rock School District et al. v. Clark et al.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 72-5348.
    Cooley v. Strickland Transportation Co. et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari and reverse the judgment.


text:
    No. 71-1664.
    Essex, Superintendent of Public Instruction, et al. v. Wolman et al.,
   409 U. S. 808. Motion for leave to file petition for rehearing denied.


text:
    No. 72-146.
    Hunter, dba Courier v. United States,
   409 U. S. 934. Motion for leave to file petition for rehearing denied.

Mr. Justice Douglas, Mr. Justice Stewart, and Mr. Justice Blackmun would grant the motion.


text:
    SATIACUM v. WASHINGTON
    No. 72-552.
    Decided October 15, 1973
   Per Curiam.

It appearing that petitioner might have been fishing at a location outside the boundaries of what is, or was, the Puyallup Indian Reservation when the acts with which he is charged were committed, and, if this were so, that the Supreme Court of Washington then unnecessarily addressed, and determined, the federal question whether the Puyallup Reservation “has ceased to exist,” the petition for a writ of certiorari is granted, the judgment of the Supreme Court of Washington is vacated, and the case is remanded to that court for resolution by the state courts of the factual issue whether the alleged offenses took place outside the boundaries of what is, or was, the Reservation.


author: Per Curiam. The Chief Justice and Mr. Justice Blackmun Mr. Justice Powell,

text:
    PLUMMER v. CITY OF COLUMBUS
    No. 72-6897.
    Decided October 15, 1973
   Per Curiam.

The Court of Appeals of Franklin County, Ohio, in an unreported opinion, affirmed appellant’s conviction of violating Columbus City Code § 2327.03, which provides: “No person shall abuse another by using menacing, insulting, slanderous, or profane language.” The Ohio Supreme Court, in an unreported order, sua sponte dismissed appellant’s appeal to that court “for the reason that no substantial constitutional question exists herein.” We grant leave to proceed in forma pauperis and reverse.

On December 11, 1972, we held that Gooding v. Wilson, 405 U. S. 518 (1972), required the reversal of a previous action of the Ohio Supreme Court that dismissed an appeal from a conviction under § 2327.03. Cason v. City of Columbus, 409 U. S. 1053. Section 2327.03 punishes only spoken words and, as construed by the Ohio courts, is facially unconstitutional because not limited in application “to punish only unprotected speech” but is “susceptible of application to protected expression.” Gooding v. Wilson, supra, at 522. In that circumstance, the Ohio Supreme Court erred when it found no constitutional infirmity in the holding of the Court of Appeals of Franklin County that the ordinance might constitutionally reach appellant’s conduct because “the words as used by the [appellant] are in the nature of ‘fighting words’ and thereby fall within that limit of conduct proscribed by the ordinance . . . For “ ‘[although [the ordinance] may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional over-breadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the [ordinance]. The [ordinance], in effect, is stricken down on its face. . . .’” Id., at 521.

Reversed.

The Chief Justice and Mr. Justice Blackmun

dissent for the reasons expressed in Mr. Justice Blackmun’s dissenting opinion in Gooding v. Wilson, 405 U. S. 518, 534 (1972), and in the dissenting statement in Cason v. City of Columbus, 409 U. S. 1053 (1972).

Mr. Justice Powell,

with whom Mr. Justice Rehnquist concurs,

dissenting.

Appellant is a Columbus cab driver. He had a female fare in his cab who had requested to be taken to a certain address. When he passed this address, the fare complained and — according to the statement of the trial court — the cab driver’s response was “a series of absolutely vulgar, suggestive and abhorrent, sexually-oriented statements.”

I would sustain appellant’s conviction for the reasons stated in my dissenting opinion in Rosenfeld v. New Jersey, 408 U. S. 901, 906 (1972). As stated therein:

“[A] verbal assault on an unwilling audience [or an individual] may be so grossly offensive and emotionally disturbing as to be the proper subject of criminal proscription, whether under a statute denominating it disorderly conduct, or, more accurately, a public nuisance.”

The Columbus City Code was certainly sufficiently explicit to inform appellant that his verbal assault on a female passenger in his cab was “menacing and insulting.” As a wrong of this character does not fall within the protection of the First Amendment, the.overbreadth doctrine is not applicable. See Model Penal Code, §§ 250.2 (1)(a) and (b) (Proposed Official Draft 1962); see also Williams v. District of Columbia, 136 U. S. App. D. C. 56, 64, 419 F. 2d 638, 646 (1969).


author: Per Curiam. Mr. Justice Douglas,

text:
    UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE v. HIBI
    No. 72-1652.
    Decided October 23, 1973
   Per Curiam.

Respondent filed his petition for naturalization in the United States District Court for the Northern District of California on September 13, 1967. The District Court granted the petition, rejecting the negative recommendation of the naturalization examiner appointed by the Attorney General pursuant to § 335 of the Immigration and Nationality Act, 66 Stat. 255, 8 U. S. C. § 1446. The Court of Appeals affirmed, 475 F. 2d 7 (CA9 1973), holding that even though the deadline fixed by Congress for the filing of applications such as respondent’s had expired more than 20 years earlier, petitioner was “estopped” from relying on this fact.

Respondent was born in Manila in 1917, and in February 1941 enlisted in the Philippine Scouts, a unit that was part of the United States Army. He was captured by the Japanese Armed Forces and released after six months’ internment. In April 1945 after the liberation of the Philippines by Allied Forces, he rejoined the Scouts and served until his discharge in December 1945.

Sections 701 and 702 of the Nationality Act of 1940, as amended, provided for the naturalization of non-citizens who served honorably in the Armed Forces of the United States during World War II. Section 701 exempted certain alien servicemen who served outside the continental limits of the United States from some of the usual requirements for naturalization, including those of a period of residence in the United States and literacy in English. An amendment to this section specified that all petitions filed under it had to be filed no later than December 31, 1946. Section 702 provided for the overseas naturalization of persons eligible for naturalization under § 701 who were not within the jurisdiction of any court authorized to naturalize aliens; naturalization under § 702 could take place only during active service in the Armed Forces. Section 705 authorized the Commissioner of Immigration and Naturalization, with the approval of the Attorney General, to make such rules and regulations as were necessary to carry into effect the provisions of the Act.

Respondent entered the United States for the first and only time on April 25, 1964, more than 17 years after the expiration of the time limit established by Congress for claiming naturalization under the “exemptions of the Act.” He entered on a visitor-for-business visa, which expired on June 30, 1964. His subsequent petition for naturalization was based on the assertion that the Government was estopped from relying on the statutory time limit which Congress had attached to the provisions under which he claimed. The estoppel was said to arise from petitioner’s failure to advise him, during the time he was eligible, of his right to apply for naturalization, and from petitioner’s failure to provide a naturalization representative in the Philippines during all of the time respondent and those in his class were eligible for naturalization. The District Court adopted respondent’s contention, and its conclusions were upheld by the Court of Appeals.

It is well settled that the Government is not in a position identical to that of a private litigant with respect to its enforcement of laws enacted by Congress.

“As a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest. ... A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or to remove a cloud from it.” Utah Power & Light Co. v. United States, 243 U. S. 389, 409 (1917).

Here the petitioner has been charged by Congress with administering an Act which both made available benefits of naturalization to persons in respondent’s class and established a cutoff date for the claiming of such benefits. Petitioner, in enforcing the cutoff date established by Congress, as well as in recognizing claims for the benefits conferred by the Act, is enforcing the public policy established by Congress.

While the issue of whether “affirmative misconduct” on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U. S. 308, 314, 315 (1961), no conduct of the sort there adverted to was involved here. We do not think that the failure to fully publicize the rights which Congress accorded under the Act of 1940, or the failure to have stationed in the Philippine Islands during all of the time those rights were available an authorized naturalization representative, can give rise to an estoppel against the Government.

Respondent’s effort to claim naturalization under a statute which by its terms had expired more than 20 years before he filed his lawsuit must therefore fail. The petition for certiorari is granted and the judgment of the Court of Appeals is reversed.

Mr. Justice Douglas,

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

dissenting.

The Court today summarily reverses the decision of the Court of Appeals, which found that the Government was estopped from denying citizenship to respondent under the Nationality Act of 1940. The Court reasons that estoppel is not even arguably applicable because there was no “affirmative misconduct” on the part of the United States; it implies that there were merely failures to “fully publicize” the rights given by the Act and “to have stationed in the Philippine Islands during all of the time those rights were available an authorized naturalization representative.” Failures of this kind could, perhaps, be excused if caused by the exigencies of war as long as good-faith efforts to carry out the provisions of the Act had been made.

But the Court ignores the record and the decisions below when it speaks only of these failures. In 1942, Congress amended the Nationality Act of 1940 to extend the benefits of citizenship to individuals who had fought in the Armed Forces of the United States during World War II, authorizing the appointment of naturalization officers to confer these benefits on noncitizens outside the jurisdiction of a naturalization court. Between 1943 and 1946, these officers traveled from post to post, through England, Iceland, North Africa, and the islands of the Pacific, naturalizing thousands of foreign nationals pursuant to the mandate of Congress.

The story in the Philippines was different. After the Japanese occupation of the Philippines ended, an American vice-consul was authorized to commence naturalization proceedings in 1945. Almost immediately thereafter, the Philippine Government expressed its concern about Filipino men leaving the Territory after being granted American citizenship. In response to these concerns, the Commissioner of Immigration, on September 13, 1945, wrote a letter to the Attorney General recommending that the “situation ... be handled by revoking the authority previously granted [the vice-consul] and by omitting to designate any representative authorized to confer citizenship in the Philippine Islands. . . .” The Commisioner’s recommendation was approved by the Attorney General on September 26, 1945, and the authority of the vice-consul to naturalize alien servicemen immediately revoked.

Because of this action, there was no authorized naturalization representative in the Philippines. The District Court found as a fact that respondent, had he known about his right to be naturalized while he was in the Armed Forces and had means been available, would have applied for naturalization. Instead, with no means available, respondent was discharged from the Armed Forces in December 1945, thereby losing his right to claim citizenship under § 702 of the 1940 Act.

The Court’s opinion ignores the deliberate — and successful — effort on the part of agents of the Executive Branch to frustrate the congressional purpose and to deny substantive rights to Filipinos such as respondent by administrative fiat, indicating instead that there was no affirmative misconduct involved in this case.

The record does not support that conclusion. I would grant certiorari and put the case down for oral argument.

      Sections 701, 702, and 705 of the Nationality Act of 1940, added by the Second War Powers Act, 1942, 56 Stat. 182, as amended, 8 U. S. C. §§ 1001, 1002, 1005 (1940 ed., Supp. V), provided in pertinent part:
      Sec. 701. “[A]ny person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war and [w]ho shall have been at the time of his enlistment or induction a resident thereof and who (a) was lawfully admitted into the United States, including its Territories and possessions, or (b) having entered the United States, including its Territories and possessions, prior to September 1, 1943, being unable to establish lawful admission into the United States serves honorably in such forces beyond the continental limits of the United States or has so served may be naturalized upon compliance with all the requirements of the naturalization laws except that (1) no declaration of intention, no certificate of arrival for those described in group (b) hereof, and no period of residence within the United States or any State shall be required; (2) the petition for naturalization may be filed in any court having naturalization jurisdiction regardless of the residence of the petitioner; (3) the petitioner shall not be required to speak the English language, sign his petition in his own handwriting, or meet any educational test; . . . Provided, however, That ... (3) the petition shall be filed not later than December 31, 1946. . . .”
      Sec. 702. “During the present war, any person entitled to naturalization under section 701 of this Act, who while serving honorably in the military . . . forces of the United States is not within the jurisdiction of any court authorized to naturalize aliens, may be naturalized in accordance with all the applicable provisions of section 701 without appearing before a naturalization court. The petition for naturalization of any petitioner under this section shall be made and sworn to before, and filed with, a representative of the Immigration and Naturalization Service designated by the Commissioner or a Deputy Commissioner, which designated representative is hereby authorized to receive such petition in behalf of the Service, to conduct hearings thereon, to take testimony concerning any matter touching or in any way affecting the admissibility of any such petitioner for naturalization, to call witnesses, to administer oaths, including the oath of the petitioner and his witnesses to the petition for naturalization and the oath of renunciation and allegiance prescribed by section 335 of this Act, and to grant naturalization, and to issue certificates of citizenship . . . .”
      Sec. 705. “The Commissioner, with the approval of the Attorney General, shall prescribe and furnish such forms, and shall make such rules and regulations, as may be necessary to carry into effect the provisions of this Act.”

       C. 876, 54 Stat. 1137.

       As amended, Act of Mar. 27, 1942, c. 199, § 1001, which added §§ 701-705 to the 1940 Act, 56 Stat. 182, the Nationality Act waived certain normal requirements for naturalization, such as residency in the United States and literacy in English for noncitizens who had served in the United States Armed Forces. Id., § 701. Section 702 of the amended Act provided that aliens could claim these benefits even when, like respondent, they were outside the jurisdiction of a naturalization court, but only so long as they were in active service in the Armed Forces; this section also explicitly authorized the designation of naturalization officers to effectuate its purposes:
      “During the present war, any person entitled to naturalization under section 701 of this Act, who while serving honorably in the military or naval forces of the United States is not within the jurisdiction of any court authorized to naturalize aliens, may be naturalized in accordance with all the applicable provisions of section 701 without appearing before a naturalization court. The petition for naturalization of any petitioner under this section shall be made and sworn to before, and filed with, a representative of the Immigration and Naturalization Service designated by the Commissioner or a Deputy Commissioner, which designated representative is hereby authorized to receive such petition in behalf of the Service, to conduct hearings thereon, to take testimony concerning any matter' touching or in any way affecting the admissibility of any such petitioner for naturalization, to call witnesses, to administer oaths, including the oath of the petitioner and his witnesses to the petition for naturalization and the oath of renunciation and allegiance prescribed by section 335 of this Act, and to grant naturalization, and to issue certificates of citizenship Id., § 702.

       See n. 2, supra. It was not until August 1946, eight months after respondent’s discharge, that a naturalization agent was reappointed for the Philippines and a good-faith effort made to naturalize Filipinos under § 702 of the Act. In four months, 4,000 Fihpinos took advantage of the opportunity.


text:
    DENNETT v. HOGAN, WARDEN
    No. 72-6449.
    Decided October 23, 1973
   Per Curiam.

The petitioner is a disbarred attorney convicted of security fraud. At his trial the court appointed advisory counsel for him, finding that he qualified as an indigent. He was convieted. He later filed with a judge of the Court of Appeals a pro se request for extension of time in which to submit his brief on appeal. This was granted. But an accompanying inquiry concerning appointment of counsel to handle the appeal was ignored. His right to have appointed counsel here is clear. 18 U. S. C. § 3006A (c); cf. Douglas v. California, 372 U. S. 353 (1963). Subsequently the petitioner requested another extension of time and renewed his request for appointed counsel. The Government opposed both motions; they were denied and the appeal was dismissed. The petitioner, still acting pro se, then brought this application for habeas corpus to this Court.

In his response to the application the Solicitor General informed the Court that it appeared that the judge below was unaware of the petitioner’s initial request for counsel, and mistakenly believed that the petitioner had never filed a financial affidavit with the trial court. The Solicitor General therefore suggested that this Court should treat the application as a petition for certiorari, and grant certiorari and remand the case to the Court of Appeals for determination of whether the petitioner’s appeal had been improvidently dismissed.

On examination of the record, we follow the suggestion of the Solicitor General, grant certiorari, vacate the judgment of the Court of Appeals, and remand the case to that court.

So ordered.

Mr. Justice Rehnquist dissents.

      Section 3006A (c) reads in part as follows: “A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal.”


text:
    NORWELL v. CITY OF CINCINNATI
    No. 72-1366.
    Decided November 5, 1973
   Per Curiam.

Petitioner Edward Norwell, on a plea of not guilty, was convicted of a violation of Cincinnati’s disorderly conduct ordinance. The charge was that petitioner “did unlawfully and wilfully conduct himself in a disorderly manner, with intent to annoy some person.” The judgment of conviction was affirmed by the Ohio Court of Appeals. Further appeal to the Supreme Court of Ohio was dismissed by that court sua sponte “for the reason that no substantial constitutional question exists herein.”

We are persuaded that the ordinance, as applied to this petitioner on the facts of his case, operated to punish his constitutionally protected speech. We therefore grant certiorari and reverse.

The ordinance, § 901-D4 of the city’s Municipal Code, reads:

“No person shall wilfully conduct himself or herself in a noisy, boisterous, rude, insulting or other disorderly manner, with the intent to abuse or annoy any person . . . .”

Petitioner, 69 years of age and an immigrant 20 years ago, is employed by his son who manages and is part owner of a “pony keg,” a small package liquor store. Petitioner works at the pony keg every evening and helps his son “because it is very dangerous.” There have been break-ins at the store on several occasions and a former owner was killed there.

On Christmas night, 1971, the pony keg closed about 10:30. The son drove home, but petitioner “wanted to take a walk and get home at 11:00 to hear the news.” Down the street, he was approached by Officer Johnson, who had been notified that a “suspicious man” was in the neighborhood of the pony keg. Officer Johnson testified that he approached petitioner and asked him if he lived in the area. Petitioner looked at him, “and then he turned around and walked away.” The officer twice attempted to stop him, but each time petitioner threw off his arm and protested, “I don’t tell you people anything.” He did not run. Petitioner then was placed under arrest for disorderly conduct. Officer Johnson said he had to “push the man approximately half a block to get him into the police car. He didn’t understand why he was being arrested.”

Petitioner testified that he “was far from the pony keg” when the officer drove up in his car and called out something which petitioner did not understand.

“He told me something, but I couldn’t understand .... I said — I asked him, 'What do you want from me?’ He said, 'Why are you on the street?’ I said, 'I am walking on the street.’ After then, he said, 'Where are you going?’ I said, T go home.’ After then, he didn’t ask me anything. He was in a car. I continued to walk.”

The officer pursued petitioner and grabbed him. Petitioner testified, “I didn’t resist because I was concerned about my health and my life.”

There is no indication in the record that it was the physical act of pushing off the officer’s arm that precipitated the arrest or supported the conviction. Had this been so, one could argue, perhaps, that Mr. Norwell might have been properly charged for disorderly conduct or under a statute or ordinance that made it illegal to interfere with a police officer in the performance of his duty. That, however, is not this case. Officer Johnson testified that he “didn’t charge the man with resisting because I didn’t think it was a warranted cause,” but that he arrested petitioner for “being loud and boisterous,” and “ [h] e was annoying me.” The municipal judge found that petitioner was “hostile” to the officer. “I’m sure [the officer] had no feeling against this man, but this man had a feeling against him, at this time, and was not at a liberty to say.” The court proceeded to find Mr. Norwell “guilty of disorderly conduct with the intent to annoy” and fined him $10 and costs “for being so noisy.”

Upon this record, we are convinced that petitioner was arrested and convicted merely because he verbally and negatively protested Officer Johnson’s treatment of him. Surely, one is not to be punished for nonprovoca-tively voicing his objection to what he obviously felt was a highly questionable detention by a police officer. Regardless of what the motivation may have been behind the expression in this case, it is clear that there was no abusive language or fighting words. If there had been, we would have a different case. See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942).

The petition for certiorari is granted. The judgment is reversed.


text:
    TAYLOR v. UNITED STATES
    No. 72-6915.
    Decided November 5, 1973
   Per Curiam.

On the first day of his trial on four counts of selling cocaine in violation of 26 U. S. C. § 4705 (a) (1964 ed.), petitioner failed to return for the afternoon session. He had been present at the expiration of the morning session when the court announced that the lunch recess would last until 2 p. m., and he had been told by his attorney to return to the courtroom at that time. The judge recessed the trial until the following morning, but petitioner still did not appear. His wife testified that she had left the courtroom the previous day with petitioner after the morning session; that they had separated after sharing a taxicab to Roxbury; that he had not appeared ill; and, finally, that she had not heard from him since. The trial judge then denied a motion for mistrial by defense counsel, who asserted that the jurors’ minds would be tainted by petitioner’s absence and that continuation of the trial in his absence deprived him of his Sixth Amendment right to confront witnesses against him. Relying upon Fed. Rule Crim. Proc. 43, which expressly provides that a defendant’s voluntary absence “shall not prevent continuing the trial,” the court found that petitioner had absented himself voluntarily from the proceedings.

Throughout the remainder of the trial, the court admonished the jury that no inference of guilt could be drawn from petitioner’s absence. Petitioner was found guilty on all four counts. Following his subsequent arrest, he was sentenced to the statutory five-year minimum. The Court of Appeals affirmed the conviction, 478 F. 2d 681 (CA1 1973), and we now grant the motion for leave to proceed in forma pauperis and the petition for certiorari and affirm the judgment of the Court of Appeals.

There is no challenge to the trial court’s conclusion that petitioner’s absence from the trial was voluntary, and no claim that the continuation of the trial was not authorized by Rule 43. Nor are we persuaded that Rule 43 is unconstitutional or that petitioner was deprived of any constitutional rights in the circumstances before us. Rule 43 has remained unchanged since the adoption of the Federal Rules of Criminal Procedure in 1945; and with respect to the consequences of the defendant’s voluntary absence from trial, it reflects the longstanding rule recognized by this Court in Diaz v. United States, 223 U. S. 442, 455 (1912):

“[W]here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.” (Citations omitted.)

Under this rule, the District Court and the Court of Appeals correctly rejected petitioner’s claims.

Petitioner, however, insists that his mere voluntary absence from his trial cannot be construed as an effective waiver, that is, “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst, 304 U. S. 458, 464 (1938), unless it is demonstrated that he knew or had been expressly warned by the trial court not only that he had a right to be present but also that the trial would continue in his absence and thereby effectively foreclose his right to testify and to confront personally the witnesses against him.

Like the Court of Appeals,, we cannot accept this position. Petitioner had no right to interrupt the trial by his voluntary absence, as he implicitly concedes by urging only that he should have been warned that no such right existed and that the trial would proceed in his absence. The right at issue is the right to be present, and the question becomes whether that right was effectively waived by his voluntary absence. Consistent with Rule 43 and Diaz, we conclude that it was.

It is wholly incredible to suggest that petitioner, who was at liberty on bail, had attended the opening session of his trial, and had a duty to be present at the trial, see Stack v. Boyle, 342 U. S. 1, 4-5 (1951), entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us, as it did to the Court of Appeals, “that a defendant who flees from a courtroom in the midst of a trial — where judge, jury, witnesses and lawyers are present and ready to continue — would not know that as a consequence the trial could continue in his absence.” 478 F. 2d, at 691. Here the Court of Appeals noted that when petitioner was questioned at sentencing regarding his flight, he never contended that he was unaware that a consequence of his flight would be a continuation of the trial without him. Moreover, no issue of the voluntariness of his disappearance was ever raised. As was recently noted, “there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward.” Illinois v. Allen, 397 U. S. 337, 349 (1970) (Brennan, J., concurring). Under the circumstances present here, the Court of Appeals properly applied Rule 43 and affirmed the judgment of conviction.

Affirmed.

       Rule 43 provides, in pertinent part:
      “The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.”

       Following an independent review, of the transcripts from the trial and sentencing hearing, the Court of Appeals also concluded that petitioner knew that he was entitled to be present in court during every stage of his trial and that his absence was a product of his voluntary choice. 478 F. 2d 689, 691 n. 4 (1973).

       This was substantially the holding of United States v. McPherson, 137 U. S. App. D. C. 192, 195, 421 P. 2d 1127, 1130 (1969), on which petitioner relies. But the Court of Appeals in the case now before us disagreed with McPherson, and, in our view, rightly so. McPherson itself appears to have strayed from recent precedent in the District of Columbia Circuit, Cureton v. United States, 130 U. S. App. D. C. 22, 396 F. 2d 671 (1968), as well as from older authority. See Falk v. United States, 15 App. D. C. 446, 454-461 (1899). In Cureton, supra, Judge Fahy stated the controlling rule:
      “[I]f a defendant at liberty remains away during his trial the court may proceed provided it is clearly established that his absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away.” 130 U. S. App. D. C., at 27, 396 F. 2d, at 676 (citation omitted).


text:
    WAINWRIGHT, CORRECTIONS DIRECTOR, et al. v. STONE et al.
    No. 73-122.
    Decided November 5, 1973
   Per Curiam.

In separate trials, appellees were convicted of violating Fla. Stat. §800.01 (1965), which proscribed “the abominable and detestable crime against nature, either with mankind or with beast . ...” Having exhausted state remedies, appellees sought federal habeas corpus, asserting, among other things, that the Florida statute was impermissibly vague. The writ was granted to both appellees. The Court of Appeals affirmed on the sole ground that § 800.01 was unconstitutionally vague and void on its face for failure to give appellees adequate notice that the conduct for which they were convicted was forbidden by law. 478 F. 2d 390 (CA5 1973).

We reverse. We perceive no violation of the “underlying principle . . . that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U. S. 612, 617 (1954). Stone was convicted for copulation per os and per anum, Huffman for copulation per anum. These very acts had long been held to constitute “the abominable and detestable crime against nature” under § 800.01 and predecessor statutes. Delaney v. State, 190 So. 2d 578 (Fla. Sup. Ct. 1966), appeal dismissed, 387 U. S. 426 (1967), declared as much; and this had been the case since 1921 under Ephraim v. State, 82 Fla. 93, 89 So. 344 (1921). Delaney also held that there could be no complaint of vagueness or lack of notice that the defendant's conduct was criminal where the acts committed were among those that prior cases had held covered by the statute.

Delaney and its supporting cases require reversal of the - Court of Appeals. The judgment of federal courts as to the vagueness or not of a state statute must be made in the light of prior state constructions of the statute. For the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation “we must take the statute as though it read precisely as the highest court of the State has interpreted it.” Minnesota ex rel. Pearson v. Probate Court, 309 U. S. 270, 273 (1940). When a state statute has been construed to forbid identifiable conduct so that “interpretation by [the state court] puts these words in the statute as definitely as if it had been so amended by the legislature,” claims of impermissible vagueness must be judged in that light. Winters v. New York, 333 U. S. 507, 514 (1948). This has been the normal view in this Court. Fox v. Washington, 236 U. S. 273, 277 (1915); Beauharnais v. Illinois, 343 U. S. 250, 253 (1952); Mishkin v. New York, 383 U. S. 502, 506 (1966). The Court of Appeals, therefore, was not free to ignore Delaney and related cases; and as construed by those cases, § 800.01 afforded appellees ample notice that their conduct was forbidden by law.

Appellees rely on Franklin v. State, 257 So. 2d 21 (Fla. Sup. Ct. 1971), to avoid the efficacy of prior constructions of § 800.01. In that case, decided after appellees’ convictions had become final, the Florida Supreme Court reconsidered Delaney and held that if § 800.01 was intended to reach oral and anal sexual activity, that intention should appear on the face of the statute; otherwise it was void for vagueness and uncertainty in its language. But this holding did not remove the fact that when appellees committed the acts with which they were charged, they were on clear notice that their conduct was criminal under the statute as then construed. Thus, the Florida Supreme Court expressly ruled in Franklin that “this judgment holding the felony statute void is not retroactive, but prospective only,” id., at 24; and subsequently the Florida courts denied appellee Stone’s request for relief based on the Franklin case. Stone v. State, supra, n. 2. The State Supreme Court did not overrule Delaney with respect to pre-Franklin convictions. Nor was it constitutionally compelled to do so or to make retroactive its new construction of the Florida statute: “A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions.” Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 364 (1932). Contrary to the judgment of the Court of Appeals, § 800.01 was not void at the time appellees performed the acts for which they were convicted. The motion of appellees to proceed in forma pauperis is granted and the judgment of the Court of Appeals is reversed.

So ordered.

       Fla. Stat. §800.01 (Supp. 1973) presently provides: “Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be guilty of a felony of the second degree, punishable as provided in [other statutory sections].” At the time of appellees’ convictions the maximum penalty was 20 years’ imprisonment.

       Appellee Stone’s conviction was affirmed on direct appeal, Stone v. State, 245 So. 2d 91 (Fla. Dist. Ct. App. 1971), and his motion for post-conviction relief was denied. Stone v. State, 264 So. 2d 81 (Fla. Dist. Ct. App.), cert. denied, 267 So. 2d 329 (Fla. Sup. Ct. 1972). It appears that appellee Huffman appealed from his conviction, but did not seek collateral relief. The District Court found exhaustion unnecessary since Huffman’s claim had already been determined adversely by the ruling in Franklin v. State, 257 So. 2d 21 (Fla. Sup. Ct. 1971), discussed in text infra.