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

text:
    NEW JERSEY v. PORTASH
    No. 77-1489.
    Argued December 5, 1978
    Decided March 20, 1979

      Stewart, J., delivered the opinion of the Court, in which BreNnaN, White, Marshall, Powell, RehNqtjist, and SteveNS, JJ., joined. BreNNAN, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 460. Powell, J., filed a concurring opinion, in which RehNQuist, J., joined, post, p. 462. BlacicmuN, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 463.

      Edwin H. Stier argued the cause for petitioner. With him on the brief were John J. Degnan, Attorney General of New Jersey, and Richard W. Berg, Deputy Attorney General.

      Michael E. Wilbert argued the cause and filed a brief for respondent.
   Mr. Justice Stewart

delivered the opinion of the Court.

This case involves the scope of the privilege against compulsory self-incrimination, grounded in the Fifth Amendment and made binding against the States by the Fourteenth. The precise question is whether, despite this constitutional privilege, a prosecutor may use a person’s legislatively immunized grand jury testimony to impeach his credibility as a testifying defendant in a criminal trial.

I

In the early 1970’s, Joseph Portash was Mayor of Manchester Township, Executive Director of the Pinelands Environmental Council, and a member of both the Ocean County Board of Freeholders and the Manchester Municipal Utilities Authority in New Jersey. In November 1974, after a lengthy investigation, a state grand jury subpoenaed Portash. He expressed an intention to claim his privilege against compulsory self-incrimination. The prosecutors and Portash’s lawyers then agreed that, if Portash testified before the grand jury, neither his statements nor any evidence derived from them could, under New Jersey law, be used in subsequent criminal proceedings (except in prosecutions for perjury or false swearing) , After Portash’s testimony, the parties tried to come to an agreement to avoid a criminal prosecution against Portash, but no bargain was reached. In April 1975, Portash was indicted for misconduct in office and extortion by a public official.

Before trial, defense counsel sought to obtain a ruling from the trial judge that no use of the immunized grand jury testimony would be permitted. The judge refused to rule that the prosecution could not use this testimony for purposes of impeachment. After the completion of the State’s case, defense counsel renewed his request for a ruling by the trial judge as to the use of the grand jury testimony. There followed an extended colloquy, and the judge finally ruled that if Portash testified and gave an answer on direct or cross-examination which was materially inconsistent with his grand jury testimony, the prosecutor could use that testimony in his cross-examination of Portash. Defense counsel then stated that, because of this ruling, he would advise his client not to take the stand. Portash did not testify, and the jury ultimately found him guilty on one of the two counts.

The New Jersey Appellate Division reversed the conviction. 151 N. J. Super. 200, 376 A. 2d 950 .(1977). That court held that the Constitution requires that the immunity granted by the New Jersey statute must be at least coextensive with the privilege afforded by the Fifth and Fourteenth Amendments. To confer such protection, the court reasoned, the grant of immunity must “leave defendant and the State in the position each would have occupied had defendant’s claim of privilege [before the grand jury] been honored.” Id., at 205, 376 A. 2d, at 953. Use of the immunized grand jury testimony to impeach a defendant at his trial, it held, did not meet this test. Because Portash’s decision not to testify was based upon the trial court’s erroneous ruling to the contrary, the Appellate Division reversed the conviction and remanded the case for a new trial. The New Jersey Supreme Court denied the State’s petition for certification of an appeal. 75 N. J. 597, 384 A. 2d 827 (1978). We granted certiorari. 436 U. S. 955.

II

New Jersey presents two questions. First, it argues that Portash cannot properly invoke the privilege against compulsory incrimination because he did not take the witness stand and, as a result, his immunized grand jury testimony was never used against him. Second, it urges that the Fifth and Fourteenth Amendments do not prohibit the use of immunized grand jury testimony to impeach materially inconsistent statements made at trial.

A

The State contends that the issue presented by Portash is abstract and hypothetical because he did not, in fact, become a witness. Portash could have taken the stand, testified, objected to the prosecution’s use of the immunized testimony to impeach him, and appealed any subsequent conviction. Absent that, the State would have us hold that the constitutional question was not and is not presented. This argument must be rejected. First, it is clear that although the trial judge was concerned about making a ruling before specific questions were asked, he did rule on the merits of the constitutional question:

“THE COURT: Well, this is what the Court was concerned with and still is and I thought the Court had straightened it out previously, the witness taking the stand and testifying as to something and then have counsel saying didn’t you say before the grand jury such and such.
“MR. WILBERT [defense counsel]: That’s the problem that we have. We don’t know whether he’s going to be able to use that or not, your Honor, especially if he didn’t touch that area in his examination—
“THE COURT: Mr. Wilbert, suppose your client takes the stand and he testifies that I worked for Donald Safran and suppose he testified before the grand jury I never worked for Donald Safran?
“MR. WILBERT: Inconsistency and under your Honor’s ruling that can be used in this case.
“THE COURT: No doubt about it.
“MR. WILBERT: Your Honor, I would submit it could be used over my objection, of course.
“THE COURT: You have a standing objection with respect to the use at all of the grand jury testimony.” (Emphasis added.) App. 223a.

Second, the New Jersey appellate court necessarily concluded that the federal constitutional question had been properly presented, because it ruled in Portash’s favor on the merits. See Raley v. Ohio, 360 U. S. 423, 435-437; cf. Jenkins v. Georgia, 418 U. S. 153, 157; Coleman v. Alabama, 377 U. S. 129, 133; Whitney v. California, 274 U. S. 357, 360-361; Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123, 134.

Moreover, there is nothing in federal law to prohibit New Jersey from following such a procedure, or, so long as the “case or controversy” requirement of Art. Ill is met, to foreclose our consideration of the substantive constitutional issue now that the New Jersey courts have decided it. This is made clear by a case decided by this Court in 1972, Brooks v. Tennessee, 406 U. S. 605. There the Court held unconstitutional a Tennessee statutory requirement that a defendant in a criminal case had to be his own first witness if he was to take the stand at all. The Court held that such a requirement unconstitutionally penalized a defendant’s right to remain silent, since a defendant could remain silent immediately after the close of the State’s case only at the cost of never testifying in his own defense. Although Brooks had not testified, the Tennessee court considered the constitutional validity of the state statute, and so did this Court. Because the rule imposed a penalty on the right to remain silent, the Court found that his constitutional rights had been infringed even though he had never taken the stand. Id., at 611 n. 6.

In Brooks the Court held that the defendant’s Fifth and Fourteenth Amendment rights had been violated because, in order to assert his Fifth Amendment right to remain silent after the prosecution’s case in chief had been presented, the defendant would have had to pay a penalty. He could never testify. Here, as in Brooks, federal law does not insist that New Jersey was wrong in not requiring Portash to take the witness stand in order to raise his constitutional claim.

B

In both Great Britain and in what later became the United States, immunity statutes, like the privilege against compulsory self-incrimination, predate the adoption of the Constitution. Kastigar v. United States, 406 U. S. 441, 445 n. 13, 446 n. 14. This Court first considered a constitutional challenge to an immunity statute in Counselman v. Hitchcock, 142 U. S. 547. The witness in that case had refused to testify before a federal grand jury in spite of a grant of immunity under the relevant federal statute. The Court overturned his contempt conviction. It construed the statute to permit the use of evidence derived from his immunized testimony. The witness was held to have validly asserted his privilege because “legislation cannot abridge a constitutional privilege, and . . . it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect.” Id., at 585. See also Brown v. United States, 359 U. S. 41; Ullmann v. United States, 350 U. S. 422; Brown v. Walker, 161 U. S. 591. After the holding in Malloy v. Hogan, 378 U. S. 1, that the Fifth Amendment privilege against compulsory self-incrimination is also contained in the Fourteenth Amendment, this rule is necessarily applicable to state immunity statutes as well. Cf. Murphy v. Waterfront Comm’n, 378 U. S. 52.

Language in Counselman and its progeny was read by some to require that the witness must be immune from prosecution for the transaction his testimony concerned. Indeed, the federal statutes subsequently upheld by the Court granted such transactional immunity. Brown v. United States, supra; Ullman v. United States, supra; Heike v. United States, 227 U. S. 131; Brown v. Walker, supra. The adoption of Pub. L. 91-452 in 1970 marked a change in federal immunity legislation from the provision of transactional immunity to the provision of what is known as “use” immunity. 18 U. S. C §§ 6001, 6002. This immunity, similar to that provided by the New Jersey statute in this case, protects the witness from the use of his compelled testimony and any information derived from it. In Kastigar v. United States, supra, the Court upheld that statute against a challenge that mere use immunity is not coextensive with the Fifth Amendment’s privilege.

“The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being 'forced to give testimony leading to the infliction of “penalties affixed to . . . criminal acts.” ’ Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.” 406 U. S., at 453. (Emphasis in original; footnote omitted.)

Against this broad statement of the necessary constitutional scope of testimonial immunity, the State asks us to weigh Harris v. New York, 401 U. S. 222, and Oregon v. Hass, 420 U. S. 714. Those cases involved the use of statements, con-cededly taken in violation of Miranda v. Arizona, 384 U. S. 436, to impeach a defendant’s testimony at trial. In both eases the Court weighed the incremental deterrence of police illegality against the strong policy against countenancing perjury. In the balance, use of the incriminating statements for impeachment purposes prevailed. The State asks that we apply the same reasoning to this case. It points out that the interest in preventing perjury is just as strongly involved, and that the statements made to the grand jury are at least as reliable as those made by the defendants in Harris and Hass.

But the State has overlooked a crucial distinction between those cases and this one. In Harris and Hass the Court expressly noted that the defendant made “no claim that the statements made to the police were coerced or involuntary,” Harris v. New York, supra, at 224; Oregon v. Hass, supra, at 722-723. That recognition was central to the decisions in those cases.

The Fifth and the Fourteenth Amendments provide that no person “shall be compelled in any criminal case to be a witness against himself.” As we reaffirmed last Term, a defendant’s compelled statements, as opposed to statements taken in violation of Miranda, may not be put to any testimonial use whatever against him in a criminal trial. “But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law.” (Emphasis in original.) Mincey v. Arizona, 437 U. S. 385, 398.

Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant’s will; the witness is told to talk or face the government’s coercive sanctions, notably, a conviction for contempt. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled. The Fifth and Fourteenth Amendments provide a privilege against compelled self-incrimination, not merely against unreliable self-incrimination. Balancing of interests was thought to be necessary in Harris and Hass when the attempt to deter unlawful police conduct collided with the need to prevent perjury. Here, by contrast, we deal with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing, therefore, is not simply unnecessary. It is impermissible.

The Superior Court of New Jersey, Appellate Division, correctly ruled that a person’s testimony before a grand jury under a grant of immunity cannot constitutionally be used to impeach him when he is a defendant in a later criminal trial. Accordingly, the judgment is affirmed.

It is so ordered.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, concurring.

I join the Court’s opinion affirming the judgment in this case, despite my reservations that the decision of the Superior Court of New Jersey, Appellate Division, 151 N. J. Super. 200, 376 A. 2d 950 (1977), certification denied, 75 N. J. 597, 384 A. 2d 827 (1978), may well rest on independent and adequate state grounds.

The privilege against self-incrimination is not set out in the New Jersey Constitution. Its origins are instead to be found in the common law, see State v. Fary, 19 N. J. 431, 434-435, 117 A. 2d 499, 501-502 (1955), and in statutes. See N. J. Stat. Ann. § 2A:84A-19 (West 1976). Although New Jersey courts have looked to constructions of the Fifth Amendment of the Federal Constitution as a source of illumination for the interpretation of the state privilege, see In re Pillo, 11 N. J. 8, 15-17, 93 A. 2d 176, 179-180 (1952), they have also held that the interpretation of that privilege is “a matter of state law and policy, as to which [New Jersey] may impose standards more strict than required by the federal Constitution, which standards will control regardless of the final outcome of the question in the federal sphere.” State v. Deatore, 70 N. J. 100, 112, 358 A. 2d 163, .170 (1976). Cf. State v. Johnson, 68 N. J. 349, 353, 346 A. 2d 66, 67-68 (1975).

In this context the Appellate Division’s decision appears to rest on the independent and adequate state ground of N. J. Stat. Ann. § 2A:81-17.2a2 (West 1976). The Division's opinion begins by reciting the statute in toto, labeling it as “[t]he statutory authority for the State’s grant of immunity to defendant.” 151 N. J. Super., at 204, 376 A. 2d, at 952. The opinion states that “[t]he question is whether the State should be required to honor its promise, expressed in its statute . . ., not to use the testimony compelled in any subsequent criminal proceeding against the defendant . . . .” (Emphasis supplied.) Id., at 207, 376 A. 2d, at 954. Under these circumstances the Appellate Division’s references to decisions interpreting federal constitutional law seem to be mere analogies, illuminating the Division’s ultimate construction of N. J. Stat. Ann. § 2A:81-17.2a2. Logically, interpretations of the Fifth Amendment can at most serve as guidance to New Jersey’s interpretation of its own statute. It is also of no little significance that, although the State rests its case heavily on Harris v. New York, 401 U. S. 222 (1971), see Brief for Petitioner 38-39, the Supreme Court of New Jersey has recently held that the state privilege against self-incrimination may well be “stricter” than that required by Harris. See State v. Deatore, supra, at 116, 358 A. 2d, at 172.

But the Court reads the New Jersey court’s opinion as resting on the Federal Constitution. That reading would not have been possible had the New Jersey court’s opinion in this case been as explicit as in Deatore. However, since I fully agree with the Court’s disposition of the federal constitutional question, I shall not further press the point but join the Court’s opinion.

Mr. Justice Powell,

with whom Mr. Justice Rehnquist joins, concurring.

I concur in the Court’s opinion, and add these comments.

As stated by the Court, New Jersey makes two arguments in support of its request for reversal. First, it insists that, because Portash did not take the witness stand, his immunized testimony was not used against him and he therefore cannot complain of a violation of his Fifth Amendment privilege. The preferred method for raising claims such as Portash’s would be for the defendant to take the stand and appeal a subsequent conviction, if — following a claim of immunity — the prosecutor were allowed to use immunized testimony for impeachment. Only in this way may the claim be presented to a reviewing court in a concrete factual context. Moreover, requiring that the claim be presented only by those who have taken the stand will prevent defendants with no real intention of testifying from creating artificial constitutional challenges to their convictions.

This is a state case, however, in which the New Jersey Appellate Division apparently accepted the procedure followed by the trial court and treated the constitutional question as having been properly presented. I agree with the Court that this procedural question was within the authority of the state court to decide.

The State also argues, quite apart from the procedural context in which the question arises, that immunized grand jury testimony may be used to impeach a criminal defendant’s testimony at trial. The Court correctly rejects this argument, ruling that the coercing of Portash to testify before the grand jury constituted a classic case of “compelling” a defendant to be a witness against himself. See Kastigar v. United States, 406 U. S. 441, 453 (1972).

The Court has referred to two quite different interests in determining whether the Fifth Amendment permits a defendant’s statements to be used against him at trial. In Harris v. New York, 401 U. S. 222 (1971), the Court emphasized the trustworthiness of a suspect’s statements made to police, noting that there was no indication that the statements were “coerced or involuntary.” Similarly, here there is no reason to question the veracity of the respondent’s grand jury testimony. The Court today recognizes, however, that the privilege against self-incrimination protects against more than just the use of false or inaccurate statements against a criminal defendant. In addition, the Fifth Amendment, by virtue of its incorporation through the Fourteenth Amendment, prohibits a State from using compulsion to extract truthful information from a defendant, when that information is to be used later in obtaining the individual’s conviction.

Mr. Justice Blackmun,

with whom The Chief Justice joins, dissenting.

The Court in this case reaches out to decide an important constitutional question even though that question is presented in the context of an abstract dispute over a hypothetical ruling of the trial court. For me, the facts present too remote and speculative an injury to federally protected rights to support the exercise of jurisdiction by this Court. Indeed, examination of the record reveals for me that the Court decides today a question different from the one the trial court considered. This demonstrates how far afield we range when we cut loose from the requirement that only concrete disputes may be decided by this Court. Because I believe the Court is without authority to engage in this type of abstract adjudication of constitutional rights in a factual vacuum, I dissent.

Prior to trial, and again at the close of the State's evidence, respondent Portash attempted to obtain an advance eviden-tiary ruling from the trial court. Though the precise nature of the ruling respondent sought is a matter of dispute, it related generally to whether and to what extent the State would be permitted to use, during cross-examination of respondent and in the rebuttal phase of its own case, information supplied by respondent under the statutory grant of immunity. When respondent failed to obtain a ruling he considered satisfactory, he refrained from testifying in his own behalf. Accordingly, he did not take the stand at the trial. He was not cross-examined. He gave no answer determined by the trial court to be materially inconsistent with any prior immunized statement on a relevant issue. The State did not seek to impeach him through use of immunized testimony. And the trial court did not rule that the State could do so in response to an inconsistent answer, or that the State could otherwise make use of immunized testimony at trial. In short, because of his failure to take the stand, respondent was never incriminated through the use of the testimony he previously had supplied under the immunity grant.

Even so, the Court takes jurisdiction over this dispute and decides the merits of respondent's claim that it would have constituted a violation of his right under the Fifth and Fourteenth Amendments to be free from compelled self-incrimination had the State used immunized testimony to impeach him, assuming, of course, that he would have taken the stand, that he would have given materially inconsistent answers to relevant questions, and that the State would have chosen to impeach him with prior immunized testimony. Thé Court justifies this assertion of jurisdiction, over the State’s objection that the dispute is only hypothetical, by announcing that the New Jersey courts decided the issue and held it to be properly presented on appeal. Citing cases such as Raley v. Ohio, 360 U. S. 423 (1959), and Jenkins v. Georgia, 418 U. S. 153 (1974), ante, at 455, the Court holds that New Jersey’s determination that the federal issue properly has been presented is sufficient to allow this Court to decide the issue, notwithstanding respondent’s failure to take the stand. "[T]here is nothing in federal law to prohibit New Jersey from following such a procedure,” the Court holds, “or, so-long as the ‘case or controversy’ requirement of Art. Ill is met, to foreclose our consideration of the substantive constitutional issue now that the New Jersey courts have decided it.” Ibid.

But the State’s objection, as I understand it, goes not to whether the federal issue properly was presented in the state courts, but to whether, in light of respondent’s failure to testify, the alleged claim is too remote and speculative to support jurisdiction here. As such, resolution of the State’s objection turns not on the determination that the New Jersey courts recognized the federal issue as properly presented, but on the determination that there is indeed a federal issue in the case. And this latter determination depends upon whether, as a matter of federal law, there is a sufficiently concrete controversy over the scope of a federal right to support the exercise of jurisdiction by this Court.

The Court tacitly recognizes this, I take it, by conceding, ante, at 455-456, that the “case or controversy” requirement of Art. Ill must be met and by its citation of Brooks v. Tennessee, 406 U. S. 605 (1972). For in Brooks, the dissenters argued that since the defendant had not taken the stand, his right to be free from compelled self-incrimination had not been infringed, and therefore the defendant had not presented the Court with any federal issue “bearing on the privilege against self-incrimination.” Id., at 617. The Court answered that argument by saying that the Tennessee statute in issue imposed a burden on the right to remain silent by penalizing a defendant who asserted that right at the start of his case, and “that penalty constitute [d] the infringement of the right.” Id., at 611 n. 6. Thus, in Brooks, the Court found that there was a federal issue presented even though the defendant had not taken the stand, since it was the exercise of the right not to testify that the State burdened.

As in Brooks, the Court here must believe that there was some infringement of a federal right sufficient to establish a concrete controversy capable of supporting its jurisdiction. But, unlike in Brooks, the Court takes care to omit any mention of what federal right was infringed by the hypothetical “ruling” of the trial court. It simply says that New Jersey recognized the issue as having been presented, intimates that the case is within Art. Ill’s case-or-controversy requirement, and proceeds to the merits.

What federal right it is that the “ruling” of the trial court infringed is not easy to ascertain. It would not appear that the right to remain silent, at issue in Brooks, was burdened, since respondent asserted that right without suffering any penalty for doing so. Nor did the hypothetical ruling compel respondent to incriminate himself, since it did not force him to take the stand and subject himself to impeachment by use of the immunized testimony. Respondent argues that it was his right to testify in his own behalf that the trial court infringed by threatening him with the possibility that, if he were to testify and if he were to give materially inconsistent answers to relevant questions, the court would permit the State to impeach respondent with his immunized testimony, if the State could do so. This threat, respondent now argues, deterred him from taking the stand in his own behalf, and thereby constituted an unconstitutional infringement of his right to testify. Brief for Respondent 13.

This appears to be the theory that the Appellate Division proceeded upon, see 151 N. J. Super. 200, 204, 209, 376 A. 2d 950, 952, 955, and it appears to be the most plausible reasoning upon which one could conclude that this case involves an actual, and not hypothetical, invasion of federal rights. As such, the Court today sub silentio decides as a matter of federal law that the hypothetical ruling by a state court that it would permit impeachment with immunized testimony in certain circumstances not yet come to pass creates a sufficient infringement on the right to testify as to create a controversy capable of being adjudicated here.

But this claimed burden on the right to testify is too speculative to support the exercise of jurisdiction by this Court over the ultimate dispute concerning the use of immunized testimony. On this record, we cannot tell whether respondent would have taken the stand even had he obtained the ruling he sought from the trial court. The decision by a criminal defendant to testify is often the most important decision he faces in the trial, and it seldom turns on the resolution of one factor among many. Even had respondent taken the stand, there is no assurance he would have given inconsistent answers to questions. Indeed, respondent vigorously has argued, in this Court and in the state courts, that he would not have testified in any manner inconsistently with his immunized testimony. Moreover, even had inconsistent answers been given, the trial court would have had to determine whether the answers were offered in response to relevant and material questions before it would have permitted impeachment. And even then, there is no certainty that the State actually would have sought to use immunized materials to impeach respondent.

In these circumstances, I would hold the dispute as to the use of the immunized testimony to be too remote and speculative to enable this Court to adjudicate it. Cf. Laird v. Tatum, 408 U. S. 1 (1972). By finding sufficient controversy to exist in this case to reach the federal issue, the Court exercises jurisdiction over an abstract dispute of no concrete significance, and as a result renders an advisory opinion, informing respondent what the State would have been permitted to do or not do had respondent ever taken the stand.

I find this adjudication of an abstract dispute not only to be beyond the jurisdiction of the Court but to be unwise as well. At a minimum, as our Brother Powell notes, ante, at 462, a requirement that such a claim be adjudicated on appeal only when presented by a defendant who has taken the stand prevents a defendant from manufacturing constitutional challenges when he has no intention of taking the stand and testifying in his own behalf. More fundamentally, such disembodied decisionmaking removes disputes from the factual and often legal context that sharpens issues, highlights problem areas of special concern, and, above all, gives a reviewing court some notion of the practical reach of its pronouncements.

Indeed, my examination of the record in this case makes me suspect that in adjudicating an abstract and academic legal question the Court has affirmed the reversal of respondent's conviction on the basis of an issue not even argued by respondent at the trial level in his attempt to obtain an advance ruling from the trial court. It is clear to me that the possible use of immunized testimony to impeach respondent was not at all respondent's concern before the trial court. At the pretrial hearing respondent's counsel conceded that if respondent gave materially inconsistent answers, he could be impeached with the grand jury testimony or prosecuted for perjury. App. 144a. Rather, respondent was attempting to obtain an advance ruling from the trial court that the State could not rely on information gathered from respondent’s immunized testimony in formulating questions for respondent on cross-examination. His argument to the trial court was that unless the State could show that it discovered the information that formed the basis of its questions from a source independent of his immunized testimony, the Fifth Amendment prohibited the State from asking those questions. And it was in reliance on the trial court’s ruling that it would not decide in advance on this request — but would wait until each question was asked to consider this objection — that respondent refused to take the stand.

The record at almost every point supports this interpretation of what it was that respondent sought from the trial court. For example, in the course of conceding that respondent properly would be subject to impeachment with the grand jury testimony if he gave answers at trial materially inconsistent with that testimony, respondent’s counsel stated that he “merely want[ed] a ruling from the Court that, unless the door is opened, that they are not permitted to use any of [the immunized testimony] by way of cross examination, by way of rebuttal, or by way of cross examination of any of our witnesses, with the one limitation, that I think is inherent, is that except in the event of perjury” (emphasis added). App. 146a. See id., at 143a-148a.

Similarly, when counsel renewed this argument at the close of the State’s evidence, the record reveals that his concern was not with impeachment, but with the use of the immunized testimony as a basis for asking questions. Thus, counsel argued that what the immunity statute proscribed was “use [of] the fruits of his testimony to cross examine him in his testimony.” Id., at 203a.

Concededly, in the passage the Court quotes, ante, at 454-455, the trial court stated that if respondent gave materially inconsistent answers, it would permit impeachment with the immunized testimony. But an examination of the entire discussion from which that quotation is lifted makes it clear that respondent was not seeking a ruling as to impeachment for inconsistent statements, but a limitation on the scope of cross-examination. Thus, just before the quoted exchange, respondent’s counsel assured the trial court that “the direct examination will in no way be inconsistent with his grand jury [immunized] testimony,” App. 220a, but that the problem concerned the use of “consistent grand jury testimony which is incriminating to convict the man on the stand.” Ibid. And immediately after the passage upon which the Court relies, respondent waved off the impeachment issue and stated that the problem that concerned him was the use by the State of information obtained from the immunized testimony to force respondent to give answers on the stand that would incriminate him.

The trial court refused to rule in advance on this attempt to limit cross-examination, and it was this refusal that respondent claimed prompted his refusal to testify. Id., at 243a. Before the Appellate Division, however, the dispute was transmuted into one over the ability of the State to impeach respondent with the immunized testimony. It was on that issue that the conviction was reversed. And it is on that issue that this Court affirms that reversal. Thus, because the Court reaches out to decide a theoretical legal question presented in an abstract setting, it permits respondent to obtain a favorable ruling from this Court on an issue of federal law that he did not assert in the trial court, and that did not form the basis for his refusing to testify in that court. And I assume respondent will be free at a new trial to renew his original argument, that the State is forbidden to use what it learned from the immunized testimony in formulating questions on cross-examination. This illustrates, I think, the problems the Court will encounter in every case in which it abandons the requirement that such an issue be presented for resolution only in the context of a concrete dispute about its actual operation at trial.

If this case presented simply the question whether state law had viewed the federal issue as properly presented, I could understand better the Court’s desire to reach the federal issue. But though a State may decide whether a federal issue actually present in the case properly was brought to the attention of its own courts for adjudication, e. g., Raley v. Ohio, 360 U. S. 423 (1959), it never should transform an abstract dispute about a federal constitutional right into a case or controversy capable of being adjudicated in this Court simply by deciding that federal issue. Doremus v. Board of Education, 342 U. S. 429, 434-435 (1952). Otherwise, a State, by ruling on a purely hypothetical legal question in the context of reviewing a criminal conviction, could confer Art. Ill jurisdiction on this Court where the facts do not support the existence of a case or controversy.

I would require that respondent take the stand and actually assert the rights he seeks to vindicate in the context of an actual attempt by the State to use "the immunized testimony. Because the Court does not require this, I dissent.

       At that time a New Jersey statute provided as follows:
      “If any public employee testifies before any court, grand jury or the State Commission of Investigation, such testimony and the- evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State; provided that no such public employee shall be exempt from prosecution or punishment for perjury committed while so testifying.” New Jersey Public Employees Immunity Statute, N. J. Stat. Ann. § 2A:81-17.2a2 (West 1976).

       Portash has not contended that the indictment was based on information disclosed by or “derived” from his immunized testimony. Before trial he did move for dismissal of the indictment on two grounds. First, he argued that the course of dealings between himself and the prosecution established an agreement that he would not be prosecuted so long as he cooperated with the State. Second, he contended that he had impermis-sibly been forced to incriminate himself by providing certain employment records to the grand jury. The trial court rejected both arguments; neither is urged here.

       We read the state-court opinion as resting its judgment unambiguously and exclusively on the Federal Constitution. The court said:

        “The immunity device, however, will only be deemed a sufficient answer to a claim of privilege if the scope of immunity afforded is commensurate in all respects with the privilege against self-incrimination which it replaces. United. States v. Calandra, 414 U. S. 338, 346 . . . (1974); Kastigar v. United States, 406 U. S. 441, 459 . . . (1972).” 151 N. J. Super., at 205, 376 A. 2d, at 953.
      Both Calandra and Kastigar were, of course, federal constitutional decisions. The court discussed several other federal cases in the course of its opinion, and nowhere indicated any reliance on principles of state constitutional or common law.

         Lefkowitz v. Newsome, 420 U. S. 283, was another case where provisions of state law allowed federal review that may not otherwise have been available. There, New York law allowed a defendant to appeal defeat of a motion to suppress even though he later pleaded guilty. The Court held that because the State recognized such a procedure, a state prisoner who had pleaded guilty could assert his Fourth and Fourteenth Amendment claim in a federal habeas corpus proceeding, even though federal habeas corpus relief would not generally have been available to one who had pleaded guilty.

       A similar situation existed in Wardius v. Oregon, 412 U. S. 470. The Court held in that case that state notice-of-alibi requirements could be enforced only if the State provided reciprocal discovery rights for the defendant. The defendant in that case had not given a notice of alibi. The State argued that he could not assert his constitutional claim, because he should have given his notice of alibi and then argued that the State had to grant him reciprocal discovery. The Court rejected that argument, and held that he need not give notice to raise his constitutional claim.

         The Murphy ease dealt with the problem of dual sovereignty. The issue was whether a State could grant constitutionally sufficient immunity if another jurisdiction could use the immunized testimony in a prosecution. The Court proceeded on the premise that a State is required to provide at least use immunity, and held that such immunity would have to be honored by the Federal Government. See Kastigar v. United States, 406 U. S. 441, 455-459.

       See Shapiro v. United States, 335 U. S. 1, 6 n. 4, for a list of the federal statutes that provided transactional immunity.

       The Court in both the Harris and Hass cases relied on Walder v. United States, 347 U. S. 62, a case in which the Court held that the Fourth Amendment’s exclusionary rule does not prevent the use of unconstitutionally seized evidence to impeach a defendant’s credibility.

       We express no view as to whether possibly truthful immunized testimony may be used in a subsequent false-declarations prosecution premised on an inconsistency between that testimony and later, nonimmunized, testimony. That question will be presented in Dunn v. United States, No. 77-6949, cert. granted, 439 U. S. 1045.

       There is discussion in the briefs of the parties regarding the admissibility of statements made by Portash during pre-indictment negotiations with the state prosecutors. We do not understand the opinion of the state appellate court to have dealt with this issue, and nothing said in this opinion bears on it.

      The immunity statute at issue in this case, N. J. Stat. Ann. §2A:81-17.2a2 (West 1976), is “self-executing,” State v. Vinegra, 134 N. J. Super. 432, 440, 341 A. 2d 673, 677 (1975), and therefore, as one New Jersey court put it, a “defendant's Fifth Amendment protection is derived from the statute.” Id., at 439, 341 A. 2d, at 677.

       There is no suggestion, of course, that New Jersey’s interpretation of its statute violates the guarantees of the Fifth Amendment of the Federal Constitution.

       “We reach that conclusion as a matter of state law and policy . . . regardless of the final outcome of the question in the federal sphere.” 70 N. J., at 112, 358 A. 2d, at 170.

       Criminal defendants, as an aid to determining trial strategy, no doubt would prefer to be told in advance of trial whether prior testimony may be used to impeach if they take the stand. But there is no constitutional requirement that defendants be given such a ruling at a time when only a hypothetical question can be presented.

         Accordingly, the Court need not, and, as I read its opinion, does not decide whether it would regard the constitutional issue as having been properly presented if this case had arisen in federal court.

       “Mr. Wilbert [defense counsel]: Your Honor, what they are going to do is attempt to enlarge the cross examination to question him about aspects of that grand jury testimony when he is not inconsistent at all on direct examination with it. They’re going to make him inconsistent or make him incriminate himself by the use of the grand jury testimony. . . . If we stay out of the area totally and then on cross examination they ask him to give an answer that’s consistent with his grand jury testimony but which incriminates him, how can that possibly be permitted, your Honor? . . . [W]hat they’re doing there is utilizing that grand jury testimony not to show an inconsistency but to create consistent incrimination . . . .” App. 203a-204a (emphasis added).
      See id., at 168a, 173a, 192a-193a, 202a-203a.

       “Mr. Wilbert: .... If they’re allowed to open the grand jury testimony of Mr. Port-ash by asking him the questions that they only gained knowledge of in his grand jury testimony and when he didn’t testify about it on direct, I submit it is an absolute erroneous use under the law, erroneous use of that grand jury testimony and that’s what I’m — that’s why I’m here seeking clarification, that’s what it’s all about.” Id., at 228a.
      See id., at 225a, 228a, 230a-231a.


source: Caselaw Access Project

author: Mr. Justice Blacicmun Mr. Justice Stewart,

license: Public Domain

text:
    NATIONAL MUFFLER DEALERS ASSN., INC. v. UNITED STATES
    No. 77-1172.
    Argued November 27, 1978
    Decided March 20, 1979
    Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, and Powell, JJ., joined. Stewart, J., filed a dissenting opinion, in which Rehnquist and Stevens, JJ., joined, post, p. 489.

      Myron P. Gordon argued the cause for petitioner. With him on the briefs was Monte Engler.

      Stuart A. Smith argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Ferguson, Leonard J. Henzke, Jr., and Robert T. Duffy

        Robert J. Sisk and David B. Tillinghast filed a brief for the Pepsi-Cola Bottlers Assn., Inc., as amicus curiae urging reversal.

   Mr. Justice Blacicmun

delivered the opinion of the Court.

Petitioner, National Muffler Dealers Association, Inc. (Association), as its name indicates, is a trade organization for muffler dealers. The issue in this case is whether the Association, which has confined its membership to dealers franchised by Midas International Corporation (Midas), and its activities to the Midas muffler business, and thus is not “industrywide,” is a “business league” entitled to the exemption from federal income tax provided by § 501 (c) (6) of the Internal Revenue Code of 1954, 26 U. S. C. § 501 (c)(6).

I

In 1971, during a contest for control of Midas, Midas muffler franchisees organized the Association under the New York Not-for-Profit Corporation Law. The Association’s purpose was to establish a group to negotiate unitedly with Midas management. Its principal activity has been to serve as a bargaining agent for its members in dealing with Midas. It has enrolled most Midas franchisees as members. The Association was successful in negotiating a new form of franchise agreement which prevents termination during its 20-year life except for cause. It also persuaded Midas to eliminate its requirement that a customer pay a service charge when a guaranteed Midas muffler is replaced. And the Association sponsors group insurance programs, holds an annual convention, and publishes a newsletter for members.

The Association sought the exemption from federal income tax which § 501 (c) (6) provides for a “business league.” Treasury Regulation § 1.501 (c) (6)-l, 26 GFR § 1.501 (c) (6)-l (1978), states that the activities of a tax exempt business league “should be directed to the improvement of business conditions of one or more lines of business.” In view of that requirement, the Internal Revenue Service initially rejected the Association’s exemption application, stating that § 501 (c) (6) “would not apply to an organization that is not industry wide.”

The Association then (in October 1972) amended its bylaws and eliminated the requirement that its members be Midas franchisees. Despite that amendment, and despite the Association’s announced purpose to promote the interests of individuals “engaged in business as muffler dealers,” it neither recruited nor acquired a member who was not a Midas franchisee.

In 1974, after the Internal Revenue Service had issued a final rejection of the Association’s exemption application, the Association filed income tax returns for its fiscal years 1971, 1972, and 1973, and, thereafter, claims for refund of the taxes paid with those returns. The 1972 claim was formally denied. Subsequent to that denial, and after more than six months had passed since the filing of the 1971 and 1973 claims, see § 6532 (a)(1) of the 1954 Code, 26 U. S. C. § 6532 (a)(1), the Association brought this suit in the United States District Court for the Southern District of New York asserting its entitlement to a refund for the income taxes paid for the three fiscal years. The District Court found: “There is no evidence that [the Association] confers a benefit on the muffler industry as a whole or upon muffler franchisees as a group.” App. to Pet. for Cert. 11a. It then concluded that “Midas Muffler franchisees do not constitute a 'line of business,’ ” and held that the Association was not a “business league” within the meaning of §501 (c)(6), and thus was not entitled to the claimed refund. App. to Pet. for Cert. 13a-14a.

The United States Court of Appeals for the Second Circuit affirmed. 565 F. 2d 845 (1977). It confronted what it called the “lexicographer’s task of deciding what is meant by a ‘business league.’ ” Id., at 846. Finding no direct guidance in the statute, the court applied the maxim noscitur a sociis (“[i]t is known from its associates,” Black’s Law Dictionary 1209 (Rev. 4th ed. 1968)), and looked “at the general characteristics of the organizations” with which business leagues were grouped in the statute, that is, chambers of commerce and boards of trade. The court agreed with the Service’s determination, in § 1.501 (c) (6) — 1 of the regulations, that a business league is an “organization of the same general class as a chamber of commerce or board of trade.” Reasoning that it was the “manifest intention” of Congress by the statute “to provide an exemption for organizations which promote some aspect of the general economic welfare rather than support particular private interests,” the court concluded that the “line of business” requirement set forth in the regulations is “well suited to assuring that an organization’s efforts do indeed benefit a sufficiently broad segment of the business community.” 565 F. 2d, at 846-847. The court noted that any success the Association might have in improving business conditions for Midas franchisees, and any advantage it might gain through tax exemption, would come at the expense of the rest of the muffler industry, and concluded that the Association’s purpose was too narrow to satisfy the line-of-business test.

The court, id., at 847 n. 1, explicitly refused to follow the decision in Pepsi-Cola Bottlers’ Assn. v. United States, 369 F. 2d 250 (CA7 1966). There, the Seventh Circuit, by a divided vote, had upheld the exempt status of an association composed solely of bottlers of a single brand of soft drink. It did so on the ground that the line-of-business requirement unreasonably narrowed the statute.

We granted certiorari to resolve this conflict. 436 U. S. 903 (1978).

II

The statute’s term “business league” has no well-defined meaning or common usage outside the perimeters of § 501 (c)(6). It is a term “so general ... as to render an interpretive regulation appropriate.” Helvering v. Reynolds Co., 306 U. S. 110, 114 (1939). In such a situation, this Court customarily defers to the regulation, which, “if found to 'implement the congressional mandate in some reasonable manner,’ must be upheld.” United States v. Cartwright, 411 U. S. 546, 550 (1973), quoting United States v. Correll, 389 U. S. 299, 307 (1967).

We do this because “Congress has delegated to the [Secretary of the Treasury and his delegate, the] Commissioner [of Internal Revenue], not to the courts, the task of prescribing 'all needful rules and regulations for the enforcement’ of the Internal Revenue Code. 26 U. S. C. § 7805 (a).” United States v. Correll, 389 U. S., at 307. That delegation helps ensure that in “this area of limitless factual variations,” ibid., like cases will be treated alike. It also helps guarantee that the rules will be written by “masters of the subject,” United States v. Moore, 95 U. S. 760, 763 (1878), who will be responsible for putting the rules into effect.

In determining whether a particular regulation carries out the congressional mandate in a proper manner, we look to see whether the regulation harmonizes with the plain language of the statute, its origin, and its purpose. A regulation may have particular force if it is a substantially contemporaneous construction of the statute by those presumed to have been aware of congressional intent. If the regulation dates from a later period, the manner in which it evolved merits inquiry. Other relevant considerations are the length of time the regulation has been in effect, the reliance placed on it, the consistency of the Commissioner’s interpretation, and the degree of scrutiny Congress has devoted to the regulation during subsequent re-enactments of the statute. See Commissioner v. South Texas Lumber Co., 333 U. S. 496, 501 (1948); Helvering v. Winmill, 305 U. S. 79, 83 (1938).

Ill

A

The history of Treas. Reg. § 1.501 (c) (6)-l and its “line of business” requirement provides much that supports the Government’s view that the Association, which is not tied to a particular community and is not industrywide, should not be exempt. The exemption for “business leagues” from federal income tax had its genesis at the inception of the modern income tax system with the enactment of the Tariff Act of October 3, 1913, 38 Stat. 114, 172. In response to a House bill which would have exempted, among others, “labor, agricultural, or horticultural organizations,” the Senate Finance Committee was urged to add an exemption that would cover nonprofit business groups. Both the Chamber of Commerce of the United States and the American Warehousemen’s Association, a trade association for warehouse operators, submitted statements to the Committee. The Chamber’s spokesman said:

“The commercial organization of the present day is not organized for selfish purposes, and performs broad patriotic and civic functions. Indeed, it is one of the most potent forces in each community for the improvement of physical and social conditions. While its original reason for being is commercial advancement, it is not in the narrow sense of advantage to the individual, hut in the broad sense of building up the trade and commerce of the community as a whole . . . .” (Emphasis added.) Briefs and Statements on H. R. 3321 filed with the Senate Committee on Finance, 63d Cong., 1st Sess., 2002 (1913) (hereinafter Briefs and Statements).

The Chamber’s written submission added:

“These organizations receive their income from dues . . . which business men pay that they may receive in common with all other members of their communities or of their industries the benefits of cooperative study of local development, of civic affairs, of industrial resources, and of local, national, and international trade.” (Emphasis added.) Id., at 2003.

The Committee was receptive to the idea, but rejected the Chamber's proposed broad language which would have exempted all “commercial organizations not organized for profit.” Instead, the Committee, and ultimately the Congress, provided that the tax would not apply to

“business leagues, nor to chambers of commerce or boards of trade, not organized for profit or no part of the net income of which inures to the benefit of the private stockholder or individual.” Tariff Act of Oct. 3, 1913, § IIG (a), 38 Stat. 172.

Congress has preserved this language, with few modifications, in each succeeding Revenue Act.

The Commissioner of Internal Revenue had little difficulty determining which organizations were “chambers of commerce” or “boards of trade” within the meaning of the statute. Those terms had commonly understood meanings before the statute was enacted. “Business league,” however, had no common usage, and in 1919 the Commissioner undertook to define its meaning by regulation. The initial definition was the following:

“A business league is an association of persons having some common business interest, which limits its activities to work for such common interest and does not engage in a regular business of a kind ordinarily carried on for profit. Its work need not be similar to that of a chamber of commerce or board of trade.” Treas. Regs. 45, Art. 518 (1919).

This language, however, proved too expansive to identify with precision the class of organizations Congress intended to exempt. The Service began to cut back on the last sentence of the material just quoted when, in 1924, the Solicitor of Internal Revenue invoked noscitur a sociis to deny an exemption requested by a stock exchange. He reasoned that, while a stock exchange conceivably could come within the definitions of a “business league” or “board of trade,” it lacked the characteristics that a “business league,” “chamber of commerce,” and “board of trade” share in common and that form the basis for the exemption. Congress must have used those terms, he said, “to indicate organizations of the same general class, having for their primary purpose the promotion of business welfare.” The primary purpose of the stock exchange, by contrast, was “to afford facilities to a limited class of people for the transaction of their private business.” L. 0. 1121, III — 1 Cum. Bull. 275, 280-281 (1924). The regulation was then amended so as specifically to exclude stock exchanges. T. D. 3746, IV-2 Cum. Bull. 77 (1925).

In 1927, the Board of Tax Appeals, in a reviewed decision with some dissents, applied the principle of noscitur a sociis and denied a claimed “business league” exemption to a corporation organized by associations of insurance companies to provide printing services for member companies. Uniform Printing & Supply Co. v. Commissioner, 9 B. T. A. 251, aff’d, 33 F. 2d 445 (CA7), cert. denied, 280 U. S. 591 (1929). In 1928, Congress revised the statute so as specifically to exempt real estate boards that local revenue agents had tried to tax. The exclusion of stock exchanges, however, was allowed to remain.

In 1929, the. Commissioner incorporated the principle of noscitur a sociis into the regulation itself. The sentence, “Its work need not be similar to that of a chamber of commerce or board of trade,” was dropped and was replaced with the following qualification:

“It is an organization of the same general class as a chamber of commerce or board of trade. Thus, its activities should be directed to the improvement of business conditions or to the promotion of the general objects of one or more lines of business as distinguished from the performance of particular services for individual persons.” Treas. Regs. 74, Art. 528 (1929).

This language has stood almost without change for half a century through several re-enactments and one amendment of the statute.

During that period, the Commissioner and the courts have been called upon to define “line of business” as that phrase is employed in the regulation. True to the representation made by the Chamber of Commerce, in its statement to the Senate in 1913, that benefits would be received “in common with all other members of their communities or of their industries,” supra, at 478, the term “line of business” has been interpreted to mean either an entire industry, see, e. g., American Plywood Assn. v. United States, 267 F. Supp. 830 (WD Wash. 1967); National Leather & Shoe Finders Assn. v. Commissioner, 9 T. C. 121 (1947), or all components of an industry within a geographic area, see, e. g., Commissioner v. Chicago Graphic Arts Federation, Inc., 128 F. 2d 424 (CA7 1942); Crooks v. Kansas City Hay Dealers’ Assn., 37 F. 2d 83 (CA8 1929); Washington State Apples, Inc. v. Commissioner, 46 B. T. A. 64 (1942).

Most trade associations fall within one of these two categories. The Commissioner consistently has denied exemption to business groups whose membership and purposes are narrower. Those who have failed to meet the “line of business” test, in the view of the Commissioner, include groups composed of businesses that market a single brand of automobile, or have licenses to a single patented product, or bottle one type of soft drink. The Commissioner has reasoned that these groups are not designed to better conditions in an entire industrial “line,” but, instead, are devoted to the promotion of a particular product at the expense of others in the industry.

In short, while the Commissioner’s reading of § 501 (c) (6) perhaps is not the only possible one, it does bear a fair relationship to the language of the statute, it reflects the views of those who sought its enactment, and it matches the purpose they articulated. It evolved as the Commissioner administered the statute and attempted to give to a new phrase a content that would reflect congressional design. The regulation has stood for 50 years, and the Commissioner infrequently but consistently has interpreted it to exclude an organization like the Association that is not industrywide. The Commissioner’s view therefore merits serious deference.

B

The Association contends, however, that the regulation is unreasonable because it unduly narrows the statute. This argument has three aspects: First, the Association argues that this Court need not defer to the regulation because, instead of being a contemporaneous construction of the statute, it is actually contrary to the regulation first in force from 1919 to 1929. Second, it argues that the addition in 1966 of professional football leagues to the statutory list of exempt organizations makes a new view of noscitur a sociis appropriate. Third, it contends that, if the maxim applies here, the Court should reach out beyond § 501 (c) (6) and take into account the fact that the Association’s bargaining function is much like that of a labor organization which would be exempt under § 501 (c)(5). We consider these arguments in turn.

1. As noted above, the Commissioner’s first definition of “business league” provided that its work “need not be similar to that of a chamber of commerce or board of trade.” Treas. Regs. 45, Art. 518 (1919) (emphasis added). The Association contends that, because this language differs from the language that replaced it in 1929, the latter is not a “contemporaneous construction” to which this Court should defer, Bingler v. Johnson, 394 U. S. 741, 749-750 (1969), but is instead an arbitrary narrowing of the statute. It is said that the earlier language rejects the rule of noscitur a sociis, and that it is the earlier language that should be treated by the Court as truly authoritative.

Contemporaneity, however, is only one of many considerations that counsel courts to defer to the administrative interpretation of a statute. It need not control here. Nothing in the regulations or case law, see Produce Exchange Stock Clearing Asnn. v. Helvering, 71 F. 2d 142 (CA2 1934), directly explains the regulatory shift. We do know, however, that the change in 1929 incorporated an interpretation thought necessary to match the statute’s construction to the original congressional intent. We would be reluctant to adopt the rigid view that an agency may not alter its interpretation in light of administrative experience. In Helvering v. Wilshire Oil Co., 308 U. S. 90, 101 (1939), the Court acknowledged the need for flexibility and applied a 1929 regulation to a taxpayer even though the taxpayer had acted in reliance on an opposite interpretation incorporated in an earlier regulation. Here, where there is no claim that the Association ever relied on the Commissioner’s prior view, the case for accepting the later regulation as authoritative is even stronger.

2. In 1966, Congress amended § 501 (c) (6) by adding to the list of exempt organizations “professional football leagues (whether or not administering a pension fund for football players).” Act of Nov. 8, 1966, Pub. L. 89-800, § 6 (a), 80 Stat. 1515. The Association contends that a professional football league is not of the same general character as a chamber of commerce or board of trade, and that a new view of noscitur a sociis is appropriate, one that would include the Association within the exemption. This, of course, is the complement to the first argument.

Nothing in the legislative history of the amendment, however, indicates that Congress objected to or endeavored to change the Commissioner’s position as to the class of organizations included in § 501 (c) (6). The purpose of the amendment was to forestall any claim that a football league’s pension plan would be considered inurement of benefits to a private individual. Congressman Mills stated flatly that “no inference is intended by this change as to the application of section 501(c)(6) to other types of organizations.” 112 Cong. Rec. 28228 (1966).

Nor does the Association share characteristics in common with a professional football league that would necessarily entitle it to exemption even if a new view of noscitur a sociis were applied. The teams in a football league depend on mutual cooperation to promote a common business purpose. They need a league to provide uniform rules of play. A franchisee, however, does not need another franchisee in order to bargain with its franchisor, even though joint bargaining may make them more powerful. Also, it is not without significance that the 1966 amendment was part of a large statutory package which paved the way for a merger which created an “industrywide" professional football league. It can hardly be read to evince a congressional intent that other associations that are not industrywide should- be afforded tax-exempt status.

3. The Association says that, if noscitur a sociis is to apply, then sound policy considerations support the reasonableness of searching for socii beyond the confines of §501 (c)(6). The Association draws a comparison to other exempt organizations, particularly labor unions that are exempt under § 501 (c)(5). The Association says that, like a labor union, it exists to redress unequal bargaining power in the marketplace. Some States have special legislation protecting franchisee associations. Employer bargaining associations that deal with unions in a particular industry are exempt “business leagues.” Rev. Rui. 65-14, 1965-1 Cum. Bull. 236, 238. It is argued that the Association meets all the regulation's requirements except the line-of-business test. Applying the thin logic of that requirement to tax a nonprofit organization like the Association, it is said, unreasonably will discourage joint action to improve shared business conditions and will yield only scant revenue to the Treasury. The Association concludes that it would be appropriate now to expand the “business league” exemption to embrace the modern phenomenon of franchisee associations that was unknown in 1913.

These arguments are not unlike those that persuaded the Senate to add the business-league exemption to the 1913 bill. See Briefs and Statements 2002-2003. Perhaps Congress would find them forceful today. The Association, however, needs more than a plausible policy argument to prevail here. Just last Term, in Fulman v. United States, 434 U. S. 528, 536 (1978), the Court upheld a regulation which had a “reasonable basis” in the statutory history, even though the taxpayer’s challenge to its policy had “logical force.” Id., at 534, 536, and 540 (dissenting opinion). The choice among reasonable interpretations is for the Commissioner, not the courts. Certainly, noscitur a sociis does not compel the Commissioner to draw comparisons that go beyond the text of the Senate’s amendment to the 1913 bill, particularly when the Senate Finance Committee, in drafting the amendment, rejected a broad proposal modeled on the same labor exemption the Association now wishes to incorporate.

In sum, the “line of business” limitation is well grounded in the origin of § 501 (c) (6) and in its enforcement over a long period of time. The distinction drawn here, that a tax exemption is not available to aid one group in competition with another within an industry, is but a particular manifestation of an established principle of tax administration. Because the Association has not shown that either the regulation or the Commissioner’s interpretation of it fails to “implement the congressional mandate in some reasonable manner,” United States v. Correll, 389 U. S., at 307, the Association's claim for a § 501 (c) (6) exemption must be denied.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Mr. Justice Stewart,

with whom Mr. Justice Rehnquist and Mr. Justice Stevens join,

dissenting.

I would reverse the judgment for substantially the reasons expressed by the Court of Appeals for the Seventh Circuit in Pepsi-Cola Bottlers’ Assn. v. United States, 369 F. 2d 250 (1966). Additionally, I note that the initial administrative interpretation of the statute in the Treasury Regulations was exactly the opposite of the one now urged. Ante, at 480. That is strong evidence of the understanding of the meaning of the law at the time it was enacted.

       The statute exempts:
      “Business leagues, chambers of commerce, real-estate boards, boards of trade, or professional football leagues (whether or not administering a pension fund for football players) not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.”

       The trial court, in focusing on the Association’s fiscal years ended November 30 in 1971, 1972, and 1973, found that 290 franchised Midas dealers were members of the Association. App. 18a. This was about 50% of the dealers. By the time of the trial in 1975, the Association included almost 80% of all Midas dealers. Id., at 49a.

       The regulation, reads:
      “A business league is an association of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit. It is an organization of the same general class as a chamber of commerce or board of trade. Thus, its activities should be directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons. ... A stock or commodity exchange is not a business league, a chamber of commerce, or a board of trade within the meaning of section 501 (c) (6) and is not exempt from tax. . . .”

       Letter dated March 28, 1972, from District Director (New York), Internal Revenue Service, to the Association. Complaint Exhibit C, Record Document No. 1.

       Certificate of Incorporation of National Muffler Dealers Association, Inc., ¶3. App. 41a.

         According to an Association survey, Midas has 21% of the replacement muffler business in 18 major metropolitan markets. See 565 F. 2d 845, 847 n. 2 (CA2 1977). A letter dated November 27, 1975, sent out by the Association’s president and seeking new members, contained the greeting, “Dear Fellow Midas Dealer.” In that letter, the Association’s president announced a joint endeavor with Midas “to improve the Midas program,” and stated, “I have been as loyal to the Midas business as I have to our-country.” App. 49a.

       See Proceedings of the Twenty-Third Annual Meeting of the American Warehousemen’s Association (1913).

       The Chamber’s statement and submission, and those of the American Warehousemen’s Association, Briefs and Statements 2040, assume an importance here beyond that usually afforded such documents in the interpretation of statutes. They do so for two reasons. First, the submissions are the only available evidence of the amendment’s purpose. The amendment was not discussed on the floor of either the House or the Senate, see J. Seidman, Legislative History of Federal Income Tax Laws 1002, 1003 (1938). and the Committee Reports do no more than state its text, see S. Rep. No. 80, 63d Cong., 1st Sess., 25-26 (1913); H. R. Conf. Rep. No. 86, 63d Cong., 1st Sess., 26 (1913). Second, the subsequent administrative interpretation of the statute directly parallels the language of the private submissions.

       Revenue Act of 1916, §11 (a), Seventh, 39 Stat. 766 (punctuation added); Revenue Act of 1918, §231 (7), 40 Stat. 1076; Revenue Act of 1921, §231 (7), 42 Stat. 253; Revenue Act of 1924, §231 (7), 43 Stat. 282; Revenue Act of 1926, §231 (7), 44 Stat. 40; Revenue Act of 1928, § 103 (7), 45 Stat. 813 (real estate boards added); Revenue Act of 1932, §103 (7), 47 Stat. 193; Revenue Act of 1934, §101 (7), 48 Stat. 700; Revenue Act of 1936, § 101 (7), 49 Stat. 1674; Revenue Act of 1938, § 101 (7), 52 Stat. 481; Internal Revenue Code of 1939, § 101 (7), 53 Stat. 33; Internal Revenue Code of 1954, §501 (c)(6), 68A Stat. 164. See also Act of Nov. 8, 1966, Pub. L. No. 89-800, § 6 (a), 80 Stat. 1515 (reference to professional football leagues added).

       Webster’s New International Dictionary 245, 366 (1913), defined the terms as follows:
      board of trade: “In the United States, a body of men appointed for the advancement and protection of business interests. Cf. chamber of commerce.”
      chamber of commerce: “[A] board or association to protect the interests of commerce, chosen from among the merchants and traders of a city. The term chamber of commerce is by some distinctively used of the bodies that are intrusted with the protection of general commercial interests, esp. in connection with foreign trade and board of trade for those dealing primarily with local commerce.”
      In Retailers Credit Assn. v. Commissioner, 90 F. 2d 47, 51 (CA9 1937), an additional explanation of the difference between the two terms was offered:
      “Although the terms ‘chamber of commerce’ and ‘board of trade’ are nearly synonymous, there is a slight distinction between their meanings. The former relates to all businesses in a particular geographic location, while the latter may relate to only one or more lines of business in a particular geographic location, but need not relate to all.”
      In L. 0. 1121, III — 1 Cum. Bull. 275, 280 (1924), the Solicitor of Internal Revenue rejected an approach to the term “board of trade” that would have encompassed “organizations which provide conveniences or facilities to certain persons in connection with buying, selling, and exchanging goods.”

       See Treas. Regs. 69, Art. 518 (1926). Because the regulation now incorporates the denial of exempt status to stock exchanges, L. 0. 1121 eventually was declared obsolete. Rev. Rui. 68-207, 1968-1 Cum. Bull. 577, 578.
      In United States v. Leslie Salt Co., 350 U. S. 383, 393-394, and n. 12 (1956), the Court approved a similar use of noscitur a sociis by the Solicitor in defining the term “certificate of indebtedness.” See L. O. 909, Sales Tax Rulings, No. 85 (1920).

       Revenue Act of 1928, § 103 (7), 45 Stat. 813. See Hearings on Revenue Revision 1927-1928, before the House Committee on Ways and Means, Interim 69th-70th Cong. 235-239, 268 (1927); H. R. Rep. No. 2, 70th Cong., 1st Sess., 17 (1927).

       See Treas. Regs. 77, Art. 528 (under 1932 Act); Treas. Regs. 86, Art. 101 (7)-l (under 1934 Act) (“or to the promotion of the general objects” dropped); Treas. Regs. 94, Art. 101 (7)-l (under 1936 Act) ; Treas. Regs. 101, Art. 101 (7)-l (under 1938 Act); Treas. Regs. 103, § 19.101 (7)-l (under 1939 Code); Treas. Regs. Ill, § 29.101 (7)-l (same): Treas. Regs. 118, § 39.101 (7)-l (same); T. D. 6301, 1958-2 Cum. Bull. 197, 203-204, and Treas. Reg. § 1.501 (c) (6) — 1 (under 1954 Code).

       Cf. Produce Exchange Stock Clearing Assn. v. Helvering, 71 F. 2d 142, 144 (CA2 1934) (organization not entitled to exemption because “[n]othing is done to advance the interests of the community or to improve the standards or conditions of a particular trade, as in the case of chambers of commerce, real estate boards, and boards of trade”); Note, 35 Ford. L. Rev. 738, 741 (1967).

       The Department of Commerce has defined a trade association as “a nonprofit, cooperative, voluntarily-joined, organization of business competitors designed to assist its members and its industry in dealing with mutual business problems.” J. Judkins, National Associations of the United States viii (1949) (emphasis added).

       Rev. Rul. 67-77, 1967-1 Cum. Bull. 138, superseding I. T. 4053, 1951-2 Cum. Bull. 53 (to the same effect under prior law). Cf. Rev. Rul. 55-444, 1955-2 Cum. Bull. 258 (industrywide advertising program exempt).

       Rev. Rul. 58-294, 1958-1 Cum. Bull. 244.

       Rev. Rul. 68-182, 1968-1 Cum. Bull. 263 (announcing nonacquiescence in Pepsi-Cola Bottlers’ Assn. v. United States, 369 F. 2d 250 (CA7 1966)).

       See Rev. Rul. 76-400, 1976-2 Cum. Bull. 153, 154. Cf. Rev. Rul. 61-177, 1961-2 Cum. Bull. 117 (organization to improve members’ competitive standing in various lines of business through.lobbying exempt).
      The Association contends that the “line of business” language in the regulation does not represent a separate requirement for exemption but, instead, is merely illustrative of the type of organization normally granted an exemption. Both the Commissioner and the courts, however, have repeatedly characterized the line-of-business test as one that must be met before a business-league exemption will be allowed. See Rev. Rul. 67-77, 1967-1 Cum. Bull. 138; United States v. Oklahoma City Retailers Assn., 331 F. 2d 328, 331 (CA10 1964); Associated Industries of Cleveland v. Commissioner, 7 T. C. 1449, 1466 (1946). While the plausibility and consistency of the Commissioner’s interpretation are relevant to the reasonableness of the regulation as applied here, the Commissioner is otherwise free to determine how the regulation he has written should be construed.

       The Court has said: “The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961).

       See H. R. Conf. Rep. No. 2308, 89th Cong., 2nd Sess., 9-10 (1966); Summary of the Act Temporarily Suspending the Investment Credit and Limiting the Use of Accelerated Depreciation, Joint Committee on Internal Revenue Taxation, 22 (1966); 112 Cong. Rec. 26882-26887, 28226, 28228 (1966).

       See, e. g., Franchise Practices Act, N. J. Stat. Ann. § 56:10-7 (West Supp. 1978-1979); Franchise Investment Protection Act, Wash. Rev. Code § 19.100.180 (1976).

       The Association is nonprofit, and the Government does not contend here that it engages in a regular business of a kind ordinarily carried on for profit, or that its income inures to individual members, or that it performs particular services for individual members in the fee-for-service sense. It does, however, provide services that benefit Midas franchisees exclusively.