author: Mr. Chief Justice Burger Me. Justice Stewaet,

text:
    LANDMARK COMMUNICATIONS, INC. v. VIRGINIA
    No. 76-1450.
    Argued January 11, 1978
    Decided May 1, 1978

      Burger, C. J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Rehnquist, and Stevens, JJ., joined. Stewart, J., filed an opinion concurring in the judgment, post, p. 848. Brennan and Powell, JJ., took no part in the consideration or decision of the case.

      Floyd Abrams argued the cause for appellant. With him on the briefs were Dean Ringel, Conrad M. Shumadine, and John O. Wynne.

      James E. Kulp, Assistant Attorney General of Virginia, argued the cause for appellee. With him on the brief was Anthony F. Troy, Attorney General.

      Briefs of amici curiae urging reversal were filed by Stephen W. Bricker, Bruce J. Ennis, Joel M. Gora, and Philip J. Hirschkop for the American Civil Liberties Union et al.; by Arthur B. Hanson and Frank M. Northam for the American Newspaper Publishers Assn.; by Christopher B. Eager, William G. Mullen, and James R. Cregan for the National Newspaper Assn, et al.; and by Edward Bennett Williams and John B. Kuhns for the Washington Post Co. et al.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

The question presented on this appeal is whether the Commonwealth of Virginia may subject persons, including newspapers, to criminal sanctions for divulging information regarding proceedings before a state judicial review commission which is authorized to hear complaints as to judges’ disability or misconduct, when such proceedings are declared confidential by the State Constitution and statutes.

I

On October 4, 1975, the Virginian Pilot, a Landmark newspaper, published an article which accurately reported on a pending inquiry by the Virginia Judicial Inquiry and Review Commission and identified the state judge whose conduct was being investigated. The article reported that “[n]o formal complaint has been filed by the commission against '[the judge], indicating either that the five-man panel found insufficient cause for action or that the case is still under review.” App. 47a. A month later, on November 5, a grand jury indicted Landmark for violating Va. Code § 2.1-37.13 (1973) by “unlawfully divulg[ing] the identification of a Judge of a Court not of record, which said Judge was the subject of an investigation and hearing” by the Commission.

The trial commenced on December 16, 1975, after the court had denied Landmark’s motion to quash or dismiss the indictment on the grounds that the statutory provision did not in terms apply to the article in question, and that it could not be so applied consistently with the First and Fourteenth Amendments. The essential facts were stipulated, and revealed that at the time the article was published the Commission had not filed a formal complaint with the Supreme Court of Virginia concerning the judge under investigation. The only witness at the trial, Joseph W. Dunn, Jr., Managing Editor of the Virginian Pilot, testified that he decided to print the information about the Commission proceedings because he felt that the subject was a matter of public importance which should be brought to the attention of the Pilot’s readers. Mr. Dunn acknowledged he was aware that it was a misdemeanor for anyone participating in Commission proceedings to divulge information about those proceedings, but testified that he did not understand the statute to apply to newspaper reports about the proceedings. He further testified that no reporter, employee, or representative of Landmark had been subpoenaed by or had appeared before the Commission in connection with the proceedings described in the October 4 article.

The case was tried without a jury, and Landmark was found guilty and fined $500 plus the costs of prosecution. The Supreme Court of Virginia affirmed the conviction, with one dissent. That court characterized the case as involving “a confrontation between the First Amendment guaranty of freedom of the press and a Virginia statute which imposes criminal sanctions for breach of the confidentiality of proceedings before the Judicial Inquiry and Review Commission.” At the outset it rejected Landmark’s claim that Va. Code § 2.1-37.13 (1973) applied only to the participants in a Commission proceeding or to the initial disclosure of confidential information. “Clearly, Landmark’s actions violated [the statute] and rendered it liable to imposition of the sanctions prescribed . . . 217 Va. 699, 703, 233 S. E. 2d 120, 123.

Turning then to the constitutional question, the court noted that it was one of first impression and of broad significance because of the large number of other States in addition to Virginia which have comparable statutes requiring confidentiality with respect to judicial inquiry commissions. The court emphasized that the issue was not one of prior restraint but instead involved a sanction subsequent to publication. Accordingly, it concluded that the “clear and present danger test” was the appropriate constitutional benchmark. It identified three functions served by the requirement of confidentiality in Commission proceedings: (a) protection of a judge’s reputation from the adverse publicity which might flow from frivolous complaints, (b) maintenance of confidence in the judicial system by preventing the premature disclosure of a complaint before the Commission has determined that the charge is well founded, and (c) protection of complainants and witnesses from possible recrimination by prohibiting disclosure until the validity of the complaint has been ascertained. The court concluded:

“Considering these matters, we believe it can be said safely, without need of hard in-court evidence, that, absent a requirement of confidentiality, the Judicial Inquiry and Review Commission could not function properly or discharge effectively its intended purpose. Thus, sanctions are indispensable to the suppression of a clear and present danger posed by the premature disclosure of the Commission’s sensitive proceedings — the imminent impairment of the effectiveness of the Commission and the accompanying immediate threat to the orderly administration of justice.” Id., at 712, 233 S. E. 2d, at 129.

In dissent, Justice Poff took the position that as applied to Landmark the statute violated the First Amendment. We noted probable jurisdiction, 431 TJ. S. 964, and we now reverse.

II

At the present time it appears that 47 States, the District of Columbia, and Puerto Rico have established, by constitution, statute, or court rule, some type of judicial inquiry and disciplinary procedures. All of these jurisdictions, with the apparent exception of Puerto Rico, provide for the confidentiality of judicial disciplinary proceedings, although in most the guarantee of confidentiality extends only to the point when a formal complaint is filed with the State Supreme Court or equivalent body. Cf. ABA Project on Standards for Criminal Justice, Function of the Trial Judge § 9.1 (App. Draft 1972).

The substantial uniformity of the existing state plans suggests that confidentiality is perceived as tending to insure the ultimate effectiveness of the judicial review commissions. First, confidentiality is thought to encourage the filing of complaints and the willing participation of relevant witnesses by providing protection against possible retaliation or recrimination. Second, at least until the time when the meritorious can be separated from the frivolous complaints, the confidentiality of the proceedings protects judges from the injury which might result from publication of unexamined and unwarranted complaints. And finally, it is argued, confidence in the judiciary as an institution is maintained by avoiding premature announcement of groundless claims of judicial misconduct or disability since it can be assumed that some frivolous complaints will be made against judicial officers who rarely can satisfy all contending litigants. See generally W. Braithwaite, Who Judges the Judges? 161-162 (1971); Buckley, The Commission on Judicial Qualifications: An Attempt to Deal with Judicial Misconduct, 3 U. San Fran. L. Rev. 244, 255-256 (1969).

In addition to advancing these general interests, the confidentiality requirement can be said to facilitate the work of the commissions in several practical respects. When removal or retirement is justified by the charges, judges are more likely to resign voluntarily or retire without the necessity of a formal proceeding if the publicity that would accompany such a proceeding can thereby be avoided. Of course, if the charges become public at an early stage of the investigation, little would be lost — at least from the judge’s perspective — by the commencement of formal proceedings. In the more common situation, where the alleged misconduct is not of the magnitude to warrant removal or even censure, the confidentiality of the proceedings allows the judge to be made aware of minor complaints which may appropriately be called to his attention without public notice. See Braithwaite, supra, at 162-163.

Acceptance of the collective judgment that confidentiality promotes the effectiveness of this mode of scrutinizing judicial conduct and integrity, however, marks only the beginning of the inquiry. Indeed, Landmark does not challenge the requirement of confidentiality, but instead focuses its attack on the determination of the Virginia Legislature, as construed by the Supreme Court, that the “divulging” or “publishing” of information concerning the work of the Commission by third parties, not themselves involved in the proceedings, should be criminally punishable. Unlike the generalized mandate of confidentiality, the imposition of criminal sanctions for its breach is not a common characteristic of the state plans; indeed only Virginia and Hawaii appear to provide criminal sanctions for disclosure.

Ill

The narrow and limited question presented, then, is whether the First Amendment permits the criminal punishment of third persons who are strangers to the inquiry, including the news media, for divulging or publishing truthful information regarding confidential proceedings of the Judicial Inquiry and Review Commission. We are not here concerned with the possible applicability of the statute to one who secures the information by illegal means and thereafter divulges it. We do not have before us any constitutional challenge to a State’s power to keep the Commission’s proceedings confidential or to punish participants for breach of this mandate. Cf. Nebraska Press Assn. v. Stuart, 427 U. S. 539, 564 (1976); id., at 601 n. 27 (Brennan, J., concurring in judgment); Wood v. Georgia, 370 U. S. 375, 393-394 (1962). Nor does Landmark argue for any constitutionally compelled right of access for the press to those proceedings. Cf. Saxbe v. Washington Post Co., 417 U. S. 843 (1974); Pell v. Procunier, 417 U. S. 817 (1974). Finally as the Supreme Court of Virginia held, and appellant does not dispute, the challenged statute does not constitute a prior restraint or attempt by the State to censor the news media.

Landmark urges as the dispositive answer to the question presented that truthful reporting about public officials in connection with their public duties is always insulated from the imposition of criminal sanctions by the First Amendment. It points to the solicitude accorded even untruthful speech when public officials are its subjects, see, e. g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and the extension of First Amendment protection to the dissemination of truthful commercial information, see, e. g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977), to support its contention. We find it unnecessary to adopt this categorical approach to resolve the issue before us. We conclude that the publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth’s interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom. See, e. g., Buckley v. Valeo, 424 U. S. 1, 64-65 (1976).

A

In Mills v. Alabama, 384 U. S. 214, 218 (1966), this Court observed: “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Although it is assumed that judges will ignore the public clamor or media reports and editorials in reaching their decisions and by tradition will not respond to public commentary, the law gives “[jjudges as persons, or courts as institutions ... no greater immunity from criticism than other persons or institutions.” Bridges v. California, 314 U. S. 252, 289 (1941) (Frankfurter, J., dissenting). The operations of the courts and the judicial conduct of judges are matters of utmost public concern.

“A responsible press has always been regarded as the handmaiden of effective judicial administration .... Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” Sheppard v. Maxwell, 384 U. S. 333, 350 (1966).

Cf. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492 (1975).

The operation of the Virginia Commission, no less than the operation of the judicial system itself, is a matter of public interest, necessarily engaging the attention of the news media. The article published by Landmark provided accurate factual information about a legislatively authorized inquiry pending before the Judicial Inquiry and Review Commission, and in so doing clearly served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect. See New York Times Co. v. Sullivan, supra, at 269-270.

B

The Commonwealth concedes that “[w]ithout question the First Amendment seeks to protect the freedom of the press to report and to criticize judicial conduct,” Brief for Appellee 17, but it argues that such protection does not extend to the publication of information “which by Constitutional mandate is to be confidential.” Ibid. Our recent decision in Cox Broadcasting Corp. v. Cohn, supra, is relied upon to support this interpretation of the scope of the freedom of speech and press guarantees. As we read Cox, it does not provide the answer to the question now confronting us. Our holding there was that a civil action against a television station for breach of privacy could not be maintained consistently with the First Amendment when the station had broadcast only information which was already hi the public domain. “At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records.” 420 U. S., at 496. The broader question — whether the publcation of truthful information withheld by law from the public domain is similarly privileged — was not reached and indeed was explicitly reserved in Cox. Id., at 497 n. 27. We need not address all the implications of that question here, but only whether in the circumstances of this case Landmark’s publication is protected by the First Amendment.

The Commonwealth also focuses on what it perceives to be the pernicious effects of public discussion of Commission proceedings to support its argument. It contends that the public interest is not served by discussion of unfounded allegations of misconduct which defames honest judges and serves only to demean the administration of justice. The functioning of the Commission itself is also claimed to be impeded by premature disclosure of the complainant, witnesses, and the judge under investigation. Criminal sanctions minimize these harmful consequences, according to the Commonwealth, by ensuring that the guarantee of confidentiality is more than an empty promise.

It can be assumed for purposes of decision that confidentiality of Commission proceedings serves legitimate state interests. The question, however, is whether these interests are sufficient to justify the encroachment on First Amendment guarantees which the imposition of criminal sanctions entails with respect to nonparticipants such as Landmark. The Commonwealth has offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined. While not dispositive, we note that more than 40 States having similar commissions have not found, it necessary to- enforce confidentiality by use of criminal sanctions against nonparticipants.

Moreover, neither the Commonwealth’s interest in protecting the reputation of its judges, nor its interest in maintaining the' institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here, even on the assumption that criminal sanctions do in fact enhance the guarantee of confidentiality. Admittedly, the Commonwealth has an interest in protecting the good repute of its judges, like that of all other public officials. Our prior cases have firmly established, however, that injury to official reputation is an insufficient reason “for repressing speech that would otherwise be free.” New York Times Co. v. Sullivan, 376 U. S., at 272-273. See also Garrison v. Louisiana, 379 U. S. 64, 67 (1964). The remaining interest sought to be protected, the institutional reputation of the courts, is entitled to no greater weight in the constitutional scales. See New York Times Co. v. Sullivan, supra. As Mr. Justice Black observed in Bridges v. California, 314 U. S., at 270-271:

“The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. . . . [A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

Mr. Justice Frankfurter, in his dissent in Bridges, agreed that speech cannot be punished when the purpose is simply “to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.” Id., at 291-292.

The Commonwealth has provided no' sufficient reason for disregarding these well-established principles. We find them controlling and, on this record, dispositive.

IV

The Supreme Court of Virginia relied on the clear-and-present-danger test in rejecting Landmark’s claim. We question the relevance of that standard here; moreover we cannot accept the mechanical application of the test which led that court to its conclusion. Mr. Justice Holmes’ test was never intended “to express a technical legal doctrine or to convey a formula for adjudicating eases.” Pennekamp v. Florida, 328 U. S. 331, 353 (1946) (Frankfurter, J., concurring). Properly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State’s interests should also be weighed.

Landmark argued in the Supreme Court of Virginia that “before a state may punish expression, it must prove by 'actual facts’ the existence of a clear and present danger to the orderly administration of justice.” 217 Va., at 706, 233 S. E. 2d, at 125. The court acknowledged that the record before it was devoid of such “actual facts,” but went on to hold that such proof was not required when the legislature itself had made the requisite finding “that a clear and present danger to the orderly administration of justice would be created by divulgence of the confidential proceedings of the Commission.” Id., at 708, 233 S. E. 2d, at 126. This legislative declaration coupled with the stipulated fact that Landmark published the disputed article was regarded by the court as sufficient to justify imposition of criminal sanctions.

Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake. In Pennekamp v. Florida, supra, at 335, Mr. Justice Reed observed that this Court is

“compelled to examine for [itself] the statements in issue and the circumstances under which they were made to see whether or not they do carry a threat of clear and. present danger to the impartiality and good order of the courts or whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.”

Mr. Justice Brandeis was even more pointed in his concurrence in Whitney v. California, 274 U. S. 357, 378-379 (1927):

“[A legislative declaration] does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution. . . . Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.”

A legislature appropriately inquires into and may declare the reasons impelling legislative action but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution. Were it otherwise, the scope of freedom of speech and of the press would be subject to legislative definition and the function of the First Amendment as a check on legislative power would be nullified.

It was thus incumbent upon the Supreme Court of Virginia to go behind the legislative determination and examine for itself “the particular utteranc[e] here in question and the circumstances of [its] publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify [subsequent] punishment.” Bridges v. California, 314 U. S., at 271. Our precedents leave little doubt as to the proper outcome of such an inquiry.

In a series of cases raising the question of whether the contempt power could be used to punish out-of-court comments concerning pending cases or grand jury investigations, this Court has consistently rejected the argument that such commentary constituted a clear and present danger to the administration of justice. See Bridges v. California, supra; Penne kamp v. Florida, supra; Craig v. Harney, 331 U. S. 367 (1947); Wood v. Georgia, 370 U. S. 375 (1962). What emerges from these cases is the “working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished,” Bridges v. California, supra, at 263, and that a “solidity of evidence,” Pennekamp v. Florida, supra, at 347, is necessary to make the requisite showing of imminence. “The danger must not be remote or even probable; it must immediately imperil.” Craig v. Harney, supra, at 376.

The efforts of the Supreme Court of Virginia to distinguish those cases from this case are unpersuasive. The threat to the administration of justice posed by the speech and publications in Bridges, Pennekamp, Craig, and Wood was, if anything, more direct and substantial than the threat posed by Landmark’s article. If the clear-and-present-danger test could not be satisfied in the more extreme circumstances of those cases, it would seem to follow that the test cannot be met here. It is true that some risk of injury to the judge under inquiry, to the system of justice, or to the operation of the Judicial Inquiry and Review Commission may be posed by premature disclosure, but the test requires that the danger be “clear and present” and in our view the risk here falls far short of that requirement. Moreover, much of the risk can be eliminated through careful internal procedures to protect the confidentiality of Commission proceedings. Cf. Nebraska Press Assn. v. Stuart, 427 U. S., at 564; id., at 601 n. 27 (Brennan, J., concurring in judgment). In any event, we must conclude as we did in Wood v. Georgia, that “[t]he type of ‘danger’ evidenced by the record is precisely one of the types of activity envisioned by the Founders in presenting the First Amendment for ratification.” 370 U. S., at 388.

Accordingly, the judgment of the Supreme Court of Virginia is reversed, and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Brennan and Mr. Justice Powell took no part in the consideration or decision of this case.

APPENDIX TO OPINION OF THE COURT

A total of 49 jurisdictions now have some mechanism for inquiring into judicial disability and conduct. With the one exception of Puerto Rico, all of the remaining jurisdictions impose some requirement of confidentiality through constitutional, statutory, or administrative provisions. The relevant provisions are listed below:

Alabama: Const. Arndt. No. 328, § 6.17 (1977), Rule 5 of Rules of Procedure of the Judicial Inquiry Commission; Alaska: Stat. Ann. § 22.30.060 (1977), Rule 2 of the Commission on Judicial Qualifications; Arizona: Const., Art. 6.1, § 5, Rule 10 of the Rules of Procedure for the Commission on Judicial Qualifications; Arkansas: Stat. Ann. §§ 22-145 (f) and 22-1004 (b) (Supp. 1977); California: Const., Art. 6, § 18 (f), Rule 902 of Title III (Miscellaneous Rules) Div. I (Rules for Censure, Removal, Retirement or Private Admonishment of Judges); Colorado: Const., Art. 6, § 23 (3) (d), Rule 3 of Rules of Procedure of the Commission on Judicial Qualifications; Connecticut: Gen. Stat. §§ 51c, 51d (1977), and § 6 of 1977 Pub. Act 77-494; Delaware: Const., Art. 4, § 37, Rule 10 (d) of Rules of Procedure of the Court on the Judiciary; District of Columbia: Code § 11-1528 (1973), Rule 1.4 (b) of the Rules and Regulations of the Commission on Judicial Disabilities and Tenure; Florida: Const., Art. 5, § 12 (d), Rule 25 of the Judicial Qualifications Commission; Georgia: Const., Art. 6, § 13, ¶[ 3, Rule 18 of Rules of the Judicial Qualifications Commission; Hawaii: Rev. Stat. §§ 610-3 (a), 610-12 (b) (1976), Rule 15 of the Rules of Practice and Procedure of the Commission for Judicial Qualification; Idaho: Code § 1-2103 (Supp. 1977), Rule 24 of the Judicial Council; Illinois: Const., Art. 6, § 15 (c), Rule 5 of the Rules of Procedure of the Judicial Inquiry Board; Indiana: Const., Art. 7, § 11, Code § 33-2.1-5-3 (1976), Rule 5 of the Rules of the Judicial Qualifications Commission; Iowa: Code § 605.28 (1977); Kansas: Stat. Ann. § 20-175 (1974), Rule No. 607 of the Rules of the Supreme Court Relating to Judicial Conduct; Kentucky: Rule 4.130 of the Rules of Court; Louisiana: Const., Art. 5, § 25 (C), Rule 10 of the Judiciary Commission; Maryland: Const., Art. 4, § 4B (a), Rule 1227 §§ e, r, of the Rules of Procedure; Massachusetts: Rule 3 of the Committee on Judicial Responsibility; Michigan: Const., Art. 6, § 30 (2), Rule 932.22 of the Supreme Court Administrative Rules; Minnesota: Stat. § 490.16 (5) (1976); Rule S of the Commission on Judicial Standards; Missouri: Rule 12.23 of the Commission on Retirement, Removal and Discipline; Montana: Rev. Codes Ann. § 93-723 (Supp. 1977), Rule 7 of the Judicial Standards Commission; Nebraska: Const., Art. 5, § 30 (3), Rev. Stat. § 24.726 (1975), Rule 2 of the Commission on Judicial Qualifications; Nevada: Const., Art. 6, § 21 (3), Rule 4 of the Revised Interim Procedural Rules of the Commission on Judicial Discipline; New Hampshire: Rev. Stat. Ann. § 490:4 (Supp. 1975), Rule 28 of the Supreme Court Rules; New Jersey: Rule 2:15-11 (e) of the Rules Governing Appellate Practice in the Supreme Court and the Appellate Division of the Superior Court; New Mexico: Const., Art. 6, § 32, Rule 7 of Procedural Rules and Regulations of the Judicial Standards Commission; New York: Jud. Law §44 (McKinney Supp. 1977); North Carolina: Gen. Stat. § 7A-377 (a) (Supp. 1977), Rule 4 of the Judicial Standards Commission; North Dakota: Cent. Code § 27-23-03 (5) (Supp. 1977), Rule 4 of the Judicial Qualifications Commission; Ohio. Rule 5 (21) of the Supreme Court Rules of Practice; Oklahoma: Stat., Tit. 20, § 1658 (Supp. 1976), Rule 5 (C) of the Council on Judicial Complaints; Oregon: Rev. Stat. §§ 1.420 (2), 1.440 (1977), Rule 7 of the Rules of Procedure of the Commission on Judicial Fitness; Pennsylvania: Const., Art. 5, § 18 (h), Rules 1, 20 of the Rules of Procedure of the Judicial Inquiry and Review Board; Rhode Island: Rule 21 of the Commission on Judicial Tenure and Discipline; South Carolina: Rule 34, Items 11 and 33, of the Rules of the Supreme Court; South Dakota: Const., Art. 5, § 9, Comp. Laws Ann. § 16-1A-4 (Supp. 1977), Rule 4 of the Judicial Qualifications Commission; Tennessee: Code Ann. §§ 17-811 (2), 17-813 (2) (Supp. 1977); Texas: Const., Art. 5, § P-a (10), Rule 19 of Rules for the Removal or Retirement of Judges; Utah: Code Ann. § 78,-7-30 (3) (1977); Vermont: Rule 3 of the Rules of the Supreme Court for Disciplinary Control; Virginia: Const., Art. 6, § 10, Code § 2.1-37.13 (1973), Rule 10 of the Judicial Inquiry and Review Commission; West Virginia: Rules 3 and 5 of the Rules of Procedure for the Handling of Complaints Against Justices, Judges, and Magistrates; Wisconsin: Item 21 of the Code of Judicial Ethics, Rules 2 and 3 (4) of the Rules of Procedure of the Judicial Commission; Wyoming: Rule 7 of the Judicial Supervisory Commission.

Me. Justice Stewaet,

concurring in the judgment.

Virginia has enacted a law making it a criminal offense for “any person” to divulge confidential information about proceedings before its Judicial Inquiry and Review Commission. I cannot agree with the Court that this Virginia law violates the Constitution.

There could hardly be a higher governmental interest than a State’s interest in the quality of its judiciary. Virginia’s derivative interest in maintaining the confidentiality of the proceedings of its Judicial Inquiry and Review Commission seems equally clear. Only such confidentiality, the State has determined, will protect upright judges from unjustified harm and at the same time insure the full and fearless airing in Commission proceedings of every complaint of judicial misconduct. I find nothing in the Constitution to prevent Virginia from punishing those who violate this confidentiality. Cf. In re Sawyer, 360 U. S. 622, 646 (opinion concurring in result).

But in this case Virginia has extended its law to punish a newspaper, and that it cannot constitutionally do. If the constitutional protection of a free press means anything, it means that government cannot take it upon itself to decide what a newspaper may and may not publish. Though government may deny access to information and punish its theft, government may not prohibit or punish the publication of that information once it falls into the hands of the press, unless the need for secrecy is manifestly overwhelming.

It is on this ground that I concur in the judgment of the Court.

       Article 6, § 10, of the Constitution of Virginia provides in relevant part: “The General Assembly shall create a Judicial Inquiry and Review Commission consisting of members of the judiciary, the bar, and the public and vested with the power to investigate charges which would be the basis for retirement, censure, or removal of a judge. The Commission shall be authorized to conduct hearings and to subpoena witnesses and documents. Proceedings before the Commission shall be confidential.”
      Virginia Code §2.1-37.13 (1973) implements the constitutional mandate of confidentiality. It provides in relevant part:
      “All papers filed with and proceedings before the Commission, and under the two preceding sections (§§ 2.1-37.11, 2.1-37.12), including the identification of the subject judge as well as all testimony and other evidence and any transcript thereof made by a reporter, shall be confidential and shall not be divulged by any person to anyone except the Commission, except that the record of any proceeding filed with the Supreme Court shall lose its confidential character.
      “Any person who shall divulge information in violation of the provisions of this section shall be guilty of a misdemeanor.”
      Rule 10 of the Rules of the Commission is to the same effect:
      “All papers filed with and all proceedings before the Commission are confidential pursuant to § 2.1-37.13, Code of Virginia (1950), that the same shall not be divulged, and a violation thereof is a misdemeanor and punishable as provided by law.”

       Upon the filing of a complaint with the Supreme Court of Virginia, the records of the proceedings before the Commission lose their confidential character. Va. Code § 2.1-37.13 (1973).

         Eight days after the decision of the Supreme Court of Virginia, the United States District Court for the Eastern District of Virginia issued a temporary injunction restraining prosecution of Richmond television station WXEX for violation of the same Virginia law under which Landmark was prosecuted. Nationwide Communications, Inc. v. Backus, No. 77-0139-R (Mar. 15, 1977). Thereafter, Richmond Newspapers, Inc., the publisher of two Richmond, Va., newspapers, was also charged under § 2.1-37.13. On April 5, 1977, the District Court denied the publisher’s motion to enjoin the pending prosecution and a conviction for two violations of the statute resulted. Upon conclusion of the ease, the District Court enjoined further prosecution of the publisher under the statute. Appellant then secured a temporary restraining order against further prosecution under the statute for the limited purpose of allowing it to publish an Associated Press story about a current Commission investigation which the Richmond newspapers were free to publish because of the court order shielding them from prosecution. Landmark Communications, Inc. v. Campbell, No. 77-404-N (ED Va., June 17, 1977). The temporary restraining order expired on June 20,1977.

       Several bills are also pending in Congress providing for somewhat similar inquiry into the conduct of federal judges. See, e. g., H. R. 1850, 95th Cong., 1st Sess. (1977); H. R. 9042, 95th Cong., 1st Sess. (1977); S. 1423, 95th Cong., 1st Sess. (1977).

       The relevant state constitutional provisions, statutes, and court rules are listed as an appendix to this opinion. Confidentiality of proceedings is also an integral aspect of the proposals currently pending in Congress. See H. R. 1850, supra, § 382; H. R. 9042, supra, § 382; S. 1423, supra, § 381. None of these bills impose criminal sanctions for a breach of the confidentiality requirement.

       According to appellee, under the Virginia plan, the name of the complainant as such is never revealed to the judge under investigation even when a complaint is filed with the Supreme Court. All complaints other than the original are filed in the name of the Commission; the original complaint is not made a part of any public record. The identity of the witnesses heard by the Commission, however, would presumably be a part of the Commission’s records which are made public if a complaint is filed with the Supreme Court.

       “The experience in California has been that not less than two' or three judges a year have either retired or resigned voluntarily, rather than to confront the particular charges that are made. . . . The important thing is that [these cases] are closed without any public furor, or without any harm done to the judiciary, because the existence and the procedures of the commission has caused the judge himself to recognize the situation that exists and to avail himself of retirement.” Hearings on S. 1110 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 2d Sess., 120 (1976) (testimony of Jack E. Frankel, Executive Officer of the California Commission on Judicial Qualifications).

       Hawaii Rev. Stat. § 610-3 (b) (1976) provides in relevant part:
      “Any commission member or individual . . . who divulges information concerning the charge prior to the certification of the charge by the commission . . . shall be guilty of a felony which shall be punishable by a fine of not more than $5000 or imprisonment of not more than five years, or both.”

       Landmark argued below that the statute was unclear with regard to whether the proscription against divulging information concerning a Commission proceeding applied to third parties as well as those who actually participated in the proceedings. The Supreme Court of Virginia, over the dissent of Justice Poff, construed the statutory language so as to encompass appellant. Although a contrary construction might well save the statute from constitutional invalidity, “it is not our function to construe a state statute contrary to the construction given it by the highest court of a State.” O’Brien v. Skinner, 414 U. S. 524, 531 (1974).

       At least two categories of “participants” come to mind: Commission members and staff employees, and witnesses or putative witnesses not officers or employees of the Commonwealth. No issue as to either of these categories is presented by this case.

       The interdependence of the press and the judiciary has frequently been acknowledged. “The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.” Pennekamp v. Florida, 328 U. S. 331, 355 (1946) (Frankfurter, J., concurring).

       A number of States provide that a breach of the confidentiality requirement by commission members or staff is punishable as contempt. E. g., Rule 4.130 (2) of the Kentucky Supreme Court; Rule 3 (g) of the Massachusetts Committee on Judicial Responsibility. Other States require witnesses as well as staff and commission members to take an oath of secrecy, violation of which is treated as contempt. E. g., Rule 25 (c) of the Florida Judicial Qualifications Commission; Rule S (2) of the Minnesota Board on Judicial Standards (witnesses only); Rule 7 (c) of the Procedural Rules and Regulations of the New Mexico Judicial Standards Commission; Rule 1 (c) of the Rules of Procedure Governing the Pennsylvania Judicial Inquiry and Review Board (witnesses only). No similar provision relating to the conduct of participants in Commission proceedings is contained in the Rules of the Virginia Judicial Inquiry and Review Commission.

       See n. 12, supra.

       Appellant also attacks the Virginia statute generally on vagueness and overbreadth grounds. Our resolution of the question presented makes it unnecessary to address these issues.

       National defense is the most obvious justification for government restrictions on publication. Even then, distinctions must be drawn between prior restraints and subsequent penalties. See, e. g., New York Times Co. v. United States, 403 U. S. 713, 733-737 (White, J., concurring); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716.


source: Caselaw Access Project

author: Mr. Justice Blackmun

license: Public Domain

text:
    UNITED STATES v. MacDONALD
    No. 75-1892.
    Argued January 9, 1978
    Decided May 1, 1978
    Blackmun, J., delivered the opinion of the Court, in which all other Members joined except Brennan, J., who took no part in the consideration or decision of the case.

      Kenneth S. Geller argued the cause for the United States. With him on the briefs were Solicitor General McCree, Assistant Attorney General Civiletti, and Shirley Baccus-Lobel.

      Bernard L. Segal argued the cause for respondent. With him on the brief were Michael J. Malley and Kenneth A. Letzler.

   Mr. Justice Blackmun

delivered the opinion of the Court.

This case presents the issue whether a defendant, before trial, may appeal a federal district court’s order denying his motion to dismiss an indictment because of an alleged violation of his Sixth Amendment right to a speedy trial.

I

In February 1970, respondent Jeffrey R. MacDonald was a physician in military service stationed at Fort . Bragg in North Carolina. He held the rank of captain in the Army-Medical Corps.

Captain MacDonald’s wife and their two daughters were murdered on February 17 at respondent’s quarters. Respondent also sustained injury on that occasion. The military police, the Army’s Criminal Investigation Division (CID), the Federal Bureau of Investigation, and the Fayetteville, N. C., Police Department all immediately began investigations of the crime. On April 6 the CID informed respondent that he was under suspicion and, that same day, he was relieved of his duties and restricted to quarters. On May 1, pursuant to Art. 30 of the Uniform Code of Military Justice (UCMJ), 10 U. S. C. § 830, the Army charged respondent with the murders. As required by Art. 32 of the UCMJ, 10 U. S. C. § 832, an investigating officer was appointed to investigate the crimes and to recommend whether the charges (three specifications of murder, in violation of Art. 118 of the UCMJ, 10 U. S. C. § 918) should be referred by the general court-martial convening authority (the post commander) to a general court-martial for trial. App. 131.

At the conclusion of the Art. 32 proceeding, the investigating officer filed a report in which he recommended that the charges against respondent be dismissed, and that the civilian authorities investigate a named female suspect. App. 136. On October 23, after review of this report, the commanding general of respondent’s unit accepted the recommendation and dismissed the charges. In December 1970, the Army granted respondent an honorable discharge for reasons of hardship.

Following respondent’s release from the military, and at the request of the Department of Justice, the CID continued its investigation. This was extensive and wide ranging. In June 1972, the CID submitted to the Department of Justice a 13-volume report recommending still further investigation. Supplemental reports were transmitted in November 1972 and August 1973. It was not until August 1974, however, that the Government began the presentation of the case to a grand jury of the United States District Court for the Eastern District of North Carolina. On January 24, 1975, the grand jury indicted respondent on three counts of first-degree murder, in violation of 18 U. S. C. § 1111. App. 22-23. He was promptly arrested and then released on bail a week later.

On July 29, the District Court denied a number of pretrial motions submitted by respondent. Among these were a motion to dismiss the indictment on double jeopardy grounds and another to dismiss because of the denial of his Sixth Amendment right to a speedy trial. App. to Pet. for Cert. 44a, 46a, 49a. Relying on United States v. Manon, 404 U. S. 307 (1971), the District Court concluded: “The right to a speedy trial under the Sixth Amendment does not arise until a person has been 'accused’ of a crime, and in this case this did not occur until the indictment had been returned.” App. to Pet. for Cert. 49a. Trial was scheduled to begin in August.

The United States Court of Appeals for the Fourth Circuit stayed the trial and allowed an interlocutory appeal on the authority of its decision in United States v. Lansdown, 460 F. 2d 164 (1972). App. to Pet. for Cert. 42a. The Court of Appeals, by a divided vote, reversed the District Court’s denial of respondent’s motion to. dismiss on speedy trial grounds and remanded the case with instructions to dismiss the indictment. 531 F. 2d 196 (1976). The Government’s petition for rehearing, with suggestion for rehearing en banc, was denied by an evenly divided vote. App. to Pet. for Cert. 2a.

The Court of Appeals panel majority recognized that the denial of a pretrial motion in a criminal case generally is not appealable. The court, however, offered two grounds for its assumption of jurisdiction in this particular case.. It stated, first, that it considered respondent’s speedy trial claim to be pendent to his double jeopardy claim, the denial of which Lansdown had held to be appealable before trial. Alternatively, although conceding that “[n]ot every speedy trial claim . . . merits an interlocutory appeal,” and that “[generally, this defense should be reviewed after final judgment,” the court stated that it was “the extraordinary nature of MacDonald’s case that persuaded us to allow an interlocutory appeal.” 531 F. 2d, at 199.

On the merits, the majority concluded that respondent had been deprived of his Sixth Amendment right to a speedy trial. The dissenting judge without addressing the jurisdictional issue, concluded that respondent’s right to a speedy trial had not been violated. Id., at 209.

Because of the importance of the jurisdictional question to the criminal law, we granted certiorari. 432 U. S. 905 (1977).

II

This Court frequently has considered the appealability of pretrial orders in criminal cases. See, e. g., Abney v. United States, 431 U. S. 651 (1977); DiBella v. United States, 369 U. S. 121 (1962); Parr v. United States, 351 U. S. 513 (1956) ; Cobbledick v. United States, 309 U. S. 323 (1940). Just last Term the Court reiterated that interlocutory or “piecemeal” appeals are disfavored. “Finality of judgment has been required as a predicate for federal appellate jurisdiction.” Abney v. United States, 431 U. S., at 656. See also DiBella v. United States, 369 U. S., at 124.

This traditional and. basic principle is currently embodied in 28 U. S. C. § 1291, which grants the federal courts of appeals jurisdiction to review “all final decisions of the district courts,” both civil and criminal. The rule of finality has particular force in criminal prosecutions because “encouragement of delay is fatal to the vindication of the criminal law.” Cobbledick v. United States, 309 U. S., at 325. See also DiBella v. United States, 369 U. S., at 126.

This Court in criminal cases has twice departed from the general prohibition against piecemeal appellate- review. Abney v. United States, supra; Stack v. Boyle, 342 U. S. 1 (1951). In each instance, the Court relied on the final-judgment rule’s “collateral order” exception articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 545-547 (1949).

Cohen was a stockholder’s derivative action in which federal jurisdiction was based on diversity of citizenship. Before final judgment was entered, the question arose whether a newly enacted state statute requiring a derivative-suit plaintiff to post security applied in federal court. The District Court held that it did not, and the defendants immediately appealed. The Court of Appeals reversed and ordered the posting of security. This Court concluded that the Court of Appeals had properly assumed jurisdiction to review the trial judge’s ruling, and affirmed.

The Court’s opinion began by emphasizing the principle— well established even then — that there can be no appeal before final judgment “even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.” Id., at 546. The Court’s conclusion that the order appealed from qualified as a “final decision,” within the language of 28 U. S. C. § 1291, however, rested on several grounds. Those grounds were summarized in Abney v. United States, 431 U. S., at 658:

“First, the District Court’s order had fully disposed of the question of the state security statute’s applicability in federal court; in no sense, did it leave the matter ‘open, unfinished or inconclusive’ [337 U. S., at 546]. Second, the decision was not simply a ‘step toward final disposition of the merits of the case [which would] be merged in final judgment’; rather, it resolved an-issue completely collateral to the cause of action asserted. Ibid. Finally, the decision had involved an important right which would be ‘lost, probably irreparably,’ if review had to await final judgment; hence, to be effective,' appellate review in that special, limited setting had to be immediate. Ibid.”

Two years after the decision in Cohen, the Court applied the “collateral order” doctrine in a criminal.proceeding, holding that an order denying a motion to reduce ball could be reviewed before trial. Stack v. Boyle, supra. Writing separately in that case, Mr. Justice Jackson (the author of Cohen) explained that, like the question of posting security in Cohen, “an order fixing bail can be reviewed without halting the main trial — its issues are entirely independent of the issues to be tried — and unless it can be reviewed before sentence, it never can be reviewed at all.” 342 U. S., at 12.

In Abney, the Court returned to this theme, holding that the collateral-order doctrine permits interlocutory appeal of an order denying a pretrial motion to dismiss an indictment on double jeopardy grounds. In so holding, the Court emphasized the special features of a motion to> dismiss based on double jeopardy. It pointed out, first, that such an, order constitutes “a complete, formal and, in the trial court, a final rejection of a criminal defendant’s double jeopardy claim. There are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment’s guarantee. Hence, Cohen’s threshold requirement of a fully consummated decision is satisfied.” 431 U. S., at 659. Secondly, it noted that “the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused’s impending criminal trial, i. e., whether or not the accused is guilty of the offense charged.” Ibid. Finally, and perhaps most importantly, “the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence.” Id., at

The application to the instant case of the principles enunciated in the above precedents is straightforward. Like the denial of a motion to dismiss an indictment on double jeopardy grounds, a pretrial order rejecting a defendant’s speedy trial claim plainly •'•'lacks the finality traditionally considered indispensable to appellate review,” Abney v. United States, 431 U. S., at 659, that is, such an order obviously is not final in the sense of terminating the criminal proceedings in the trial court. Thus, if such an order may be appealed before trial, it is because it satisfies the criteria identified in Cohen and Abney as sufficient to warrant suspension of the established rules against piecemeal review before final judgment.

We believe it clear that an order denying a motion to dismiss an indictment on speedy trial grounds does not satisfy those criteria. The considerations that militated in favor of appealability in Stack v. Boyle, supra, and in Abney v. United States are absent or markedly attenuated in the present case. In keeping with what appear to be the only two other federal cases in which a defendant has sought pretrial review of an order denying his motion to dismiss an indictment on speedy trial grounds, we hold that the Court of Appeals lacked jurisdiction to entertain respondent’s speedy trial appeal. United States v. Bailey, 512 F. 2d 833 (CA5), cert. dism’d, 423 U. S. 1039 (1975); Kyle v. United States, 211 F. 2d 912 (CA9 1954).

In sharp distinction to a denial of a motion to dismiss on double jeopardy grounds, a denial of a motion to dismiss on speedy trial grounds does not represent “a complete, formal and, in the trial court, a final rejection” of the defendant’s claim. Abney v. United States, 431 U. S., at 659. The resolution of a speedy trial claim necessitates a careful assessment of the particular facts of the case. As is reflected in the decisions of this Court, most speedy trial claims, therefore, are best considered only after the relevant facts have been developed at trial.

In Barker v. Wingo, 407 U. S. 514 (1972), the Court listed four factors that are to be weighed in determining whether an accused has been deprived of his Sixth Amendment right to a speedy trial. They are the length of the delay, the reason for the delay, whether the defendant has asserted his right, and prejudice to the defendant from the delay. Id., at 530. The Court noted that prejudice to the defendant must be considered in the light of the interests the speedy trial right was designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id., at 532 (footnote omitted).

Before trial, of course, an estimate of the degree to which delay has impaired an adequate defense tends to be speculative. The denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial — when prejudice can be better gauged — would also be denied. Hence, pretrial denial of a speedy trial claim can never be considered a complete, formal, and final rejection by the trial court of the defendant’s contention; rather, the question at stake in the motion to dismiss necessarily “remains open, unfinished [and] inconclusive” until the trial court has pronounced judgment. Cohen, 337 U. S., at 546.

Closely related to the “threshold requirement of a fully consummated decision,” Abney v. United States, 431 U. S., at 659, is the requirement that the order sought to be appealed be “collateral to, and separable from, the principal issue at the accused’s impending criminal trial, i. e., whether or not the accused is guilty of the offense charged.” Ibid. In each of the two cases where this Court has upheld a pretrial appeal by a criminal defendant, the order sought to be reviewed clearly fit this description. Abney v. United States (double jeopardy); Stack v. Boyle (bail reduction). As already noted, however, there exists no such divorce between the question of prejudice to the conduct of the defense (which so often is central to an assessment of a speedy trial claim) and the events at trial. Quite the contrary, in the usual case, they are intertwined.

Even if the degree of prejudice could be accurately measured before trial, a speedy trial claim nonetheless would not be sufficiently independent of the outcome of the trial to warrant pretrial appellate review. The claim would be largely satisfied by an acquittal resulting from the prosecution’s failure to carry its burden of proof. The double jeopardy motion in Abney was separable from the issues at trial because “[t]he elements of that claim are completely independent of [the accused’s] guilt or innocence,-” 431 U. S., at 660, since an acquittal would not have eliminated the defendant’s grievance at having been put twice in jeopardy. In contrast, a central interest served by the Speedy Trial Clause is the protection of the factfinding process at trial. The essence of a defendant’s Sixth Amendment claim in the usual case is that the passage of time has frustrated his ability to establish his innocence of the crime charged. Normally, it is only after trial that that claim may fairly be assessed.

Relatedly, the order sought to be appealed in this case may not accurately be described, in the sense that the description has been employed, as involving “an important right which would be dost, probably irreparably,’ if review had to await final judgment.” Id., at 658, quoting Cohen, 337 U. S., at 546. The double jeopardy claim in Abney, the demand for reduced bail in Stack v. Boyle, and the posting of security at issue in Cohen each involved an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial. There perhaps is some superficial attraction in the argument that the right to a speedy trial— by analogy to these other rights — must be vindicated before trial in order to insure that no nonspeedy trial is ever held. Both doctrinally and pragmatically, however, this argument fails. Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a “right not to be tried” which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial. If the factors outlined in Barker v. Wingo, supra, combine to deprive an accused of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered.

Furthermore, in most cases, as noted above, it is difficult to make the careful examination of the constituent elements of the speedy trial claim before trial. Appellate courts would be in no better position than trial courts to vindicate a right that had not yet been shown to have been infringed.

IV

As the preceding discussion demonstrates, application of the principles articulated in Cohen and Abney to speedy trial claims compels the conclusion that such claims are n,ot appealable before trial. This in itself is dispositive. Our conclusion, however, is reinforced by the important policy considerations that underlie both the Speedy Trial Clause and 28 U. S. C. § 1291.

Significantly, this Court has emphasized that one of the principal reasons for its strict adherence to the doctrine of finality in criminal cases is that “[t]he Sixth Amendment guarantees a speedy trial.” DiBella v. United States, 369 U. S., at 126. Fulfillment of this guarantee would be impossible if every pretrial order were appealable.

Many defendants, of course, would be willing to tolerate the delay in a trial that is attendant upon a pretrial appeal in the hope of winning that appeal. The right to a speedy trial, however, “is generically different from any of the other rights enshrined in the Constitution for the protection of the accused” because “there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” Barker v. Wingo, 407 U. S., at 519. See also United States v. Avalos, 541 F. 2d 1100, 1110 (CA5 1976), cert. denied, 430 U. S. 970 (1977). Among other things, delay may prejudice the prosecution’s ability to prove its case, increase the cost to society of maintaining those defendants subject to pretrial detention, and prolong the period during which defendants released on bail may commit other crimes. Dickey v. Florida, 398 U. S. 30, 42 (1970) (Beennan, J., concurring).

Allowing an exception to the rule against pretrial appeals in criminal cases for speedy trial claims would threaten precisely the values manifested in the Speedy Trial Clause. And some assertions of delay-caused prejudice would become self-fulfilling prophecies during the period necessary for appeal.

There is one final argument for disallowing pretrial appeals on speedy trial grounds. As the Court previously has observed, there is nothing about the circumstances that will support a speedy trial claim which inherently limits the availability of the claim. See Barker v. Wingo, 407 U. S., at 521-522, 530. Unlike a double jeopardy claim, which requires at least a colorable showing that the defendant once before has been in jeopardy of federal conviction on the same or a related offense, in every case there will be some period between arrest or indictment and trial during which time “every defendant will either be incarcerated ... or on bail subject to substantial restrictions on his liberty.” Id., at 537 (White, J., concurring). Thus, any defendant can make a pretrial motion for dismissal on speedy trial grounds and, if § 1291 is not honored, could immediately appeal its denial.

V

In sum, we decline to exacerbate pretrial delay by intruding upon accepted principles of finality to allow a defendant whose speedy trial motion has been denied before trial to obtain interlocutory appellate review. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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

       The Sixth Amendment reads in pertinent part:
      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed

       Respondent’s discharge barred any further military proceeding against him. United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955).

       There was federal-court jurisdiction because the crimes were committed on a military reservation. 18 U. S. C. §§ 7 (3), 1111, and 3231.

       Title 28 U. S. C. § 1291 reads:
      “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District- Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.”

       Respondent would rely on United States v. Marion, 404 U. S. 307 (1971), to demonstrate that a defendant has a right to appeal before trial the denial of a motion to dismiss an indictment on speedy trial grounds. That case, however, is clearly distinguishable. In Marion, the District Court granted the defendants’ motion to dismiss the indictment on speedy trial grounds, and the Government appealed the dismissal to this Court. The appeal was predicated on the Criminal Appeals Act, 18 U. S. C. § 3731 (1964 ed., Supp. V), which, at the time, provided in relevant part:
      “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
      “From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.”
      Currently, 18 U. S. C. § 3731 (1976 ed.) provides:
      “In a criminal case, an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”
      Obviously, neither the former version of the statute nor the current one has anything whatsoever to do with a defendant’s right to appeal the denial of a motion to dismiss an indictment on speedy trial grounds.

       The justifications proffered by the Court of Appeals for its exercise of jurisdiction (see supra, at 852-853) are not persuasive for us. The argument that respondent’s Sixth Amendment claim' was “pendent” to his double jeopardy claim is vitiated by Abney v. United States, 431 U. S. 651, 662-663 (1977) (decided after the Court of Appeals filed its opinion), where this Court concluded that a federal court of appeals is without pendent jurisdiction over otherwise nonappealable claims even though they are joined with a double jeopardy claim over which the appellate court does have interlocutory appellate jurisdiction. See also United States v. Cerilli, 558 E. 2d 697, 699-700 (CA3), cert. denied, 434 U. S. 966 (1977).
      The Court of Appeals’ alternative rationale — that it was the “extraordinary nature” of respondent’s claim that merited interlocutory appeal, even though not all speedy trial claims would be so meritorious — is also unpersuasive. “Appeal rights cannot depend on the facts of a particular case.” Carroll v. United States, 354 U. S. 394, 405 (1957). The factual circumstances that underlie a speedy trial claim, however "extraordinary,” cannot establish its independent appealability prior to trial. Under the controlling jurisdictional statute, 28 U. S. C. § 1291, the federal courts of appeals have power to review only “final decisions,” a concept that Congress defined “in terms of categories.” Carroll v. United States, 354 U. S., at 405.

       Admittedly, there is value — to all but the most unusual litigant — in triumphing before trial, rather than after it, regardless of the substance of the winning claim. But this truism is not to be confused with the quite distinct proposition that certain claims (because of the substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial. Double jeopardy claims are paradigmatic.
      Certainly, the fact that this Court has held dismissal of the indictment to be the proper remedy when the Sixth Amendment right to a speedy trial has been violated, see Strunk v. United States, 412 U. S. 434 (1973), does not mean that a defendant enjoys a “right not to be tried” which must be safeguarded by interlocutory appellate review. Dismissal of the indictment is the proper sanction when a defendant has been granted immunity from prosecution, when his indictment is defective, or, usually, when the only evidence against him was seized in violation of the Fourth Amendment. Obviously, however, this has not led the Court to conclude that such defendants can pursue interlocutory appeals. Abney v. United States, 431 U. S., at 663; Cogen v. United States, 278 U. S. 221, 227 (1929); Heike v. United States, 217 U. S. 423, 430 (1910).

       Of course, an accused who does successfully establish a speedy trial claim before trial will not be tried.

       In view of our resolution of the appealability issue, we do not reach the merits of respondent’s motion to dismiss the indictment on speedy trial grounds. Similarly, we express no opinion on the District Court’s denial of respondent’s motion to have the indictment dismissed on double jeopardy grounds. The Court of Appeals stated that it had jurisdiction to review the latter claim, 531 F. 2d 196, 199 (1976), but declined to address its merits because of the court’s disposition of respondent’s speedy trial motion. Id., at 209.


text:
    February 27, 1978
    No. 77-1033.
    Briscoe, Governor of Texas, et al. v. Escalante et al.
   Affirmed on appeal from D. C. W. D. Tex.


text:
    No. 77-957.
    Hutter v. Korzen, Treasurer of Cook County.
   Appeal from App. Ct. Ill., 1st Dist., dismissed for want of substantial federal question.


text:
    No. 77-979.
    Appalachian Power Co. v. Public Service Commission of West Virginia.
   Appeal from Sup. Ct. App. W. Va. dismissed for want of substantial federal question.


text:
    (See also No. 77-6018, infra.)

    No. A-666.
    O'Leary v. Palmer et al.
   Sup. Ct. Ohio. Application for stay, presented to Mr. Justice Brennan, and by him referred to the Court, denied.


text:
    No. D-105.
    In re Disbarment of Saltzer.
   Disbarment entered. [For earlier order, see 431 U. S. 912.]


text:
    No. D-120.
    In re Disbarment of Boznos.
   Disbarment entered. [For earlier order, see 434 U. S. 900.]


text:
    No. D-131.
    In re Disbarment of Gibson.
   It is ordered that Truman Kella Gibson, Jr., df Chicago, 111., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 76-1701.
    Tennessee Valley Authority v. Hill et al.
   C. A. 6th Cir. [Certiorari granted, 434 U. S. 954.] Motions of Southeastern Legal Foundation and Pacific Legal Foundation for leave to file briefs as amici curiae granted. Motion of respondents for additional time for oral argument or, in the alternative, for divided argument denied.


text:
    No. 77-178.
    Robertson v. Wegmann, Executor, et al.
   C. A. 5th Cir. [Certiorari granted, 434 U. S. 983.] Motion of Lawyers’ Committee for Civil Rights Under Law for leave to file a brief as amicus curiae granted.


text:
    No. 77-240.
    St. Paul Fire & Marine Insurance Co. et al. v. Barry et al.
   C. A. 1st Cir., [Certiorari granted, 434 U. S. 919.] Motion of Lakeside Hospital, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 77-285.
    California et al. v. United States.
   C. A. 9th Cir. [Certiorari granted, 434 U. S. 984.] Motion of Charles J. Meyers for leave to file a brief as amicus curiae granted.


text:
    No. 77-324.
    Hicklin et al. v. Orbeck, Commissioner, Department of Labor of Alaska, et al.
   Appeal from Sup. Ct. Alaska. [Probable jurisdiction noted, 434 U. S. 919.] Motion of National Right to Work Legal Defense Foundation for leave to file a brief as amicus curiae granted.


text:
    No. 77-369.
    Furnco Construction Corp. v. Waters et al.
   C. A. 7th Cir. [Certiorari granted, 434 U. S. 996.] Motion of Equal Employment Advisory Council for leave to file a brief as amicus curiae granted.


text:
    No. 77-6017.
    Monteer v. United States et al.
   Motion for leave to file petition for writ of habeas corpus and/or prohibition denied.


text:
    No. 77-452. No. 77-457. No. 77-551. No. 77-602.
    Mobil Alaska Pipeline Co. v. United States et al.; Exxon Pipeline Co. v. United States et al.; BP Pipelines, Inc. v. United States et al; and ARCO Pipe Line Co. v. United States et al.
   C. A. 5th Cir. [Certiorari granted, 434 U. S. 964.] Motion of the Solicitor General for additional time for oral argument granted and 15 additional minutes allotted respondents for that purpose. Petitioners also allotted 15 additional minutes for oral argument. Mr. Justice Stewart and Mr. Justice Powell took no part in the consideration or decision of this motion.


text:
    No. 77-5858.
    Nazario de Toro v. Puerto Rico et al.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 77-388.
    Washington et al. v. Confederated Bands and Tribes of the Yakima Indian Nation.
   Appeal from C. A. 9th Cir. Probable jurisdiction noted. The parties are directed to address the following issue: “Whether the partial geographic and subject matter jurisdiction exercised by the State of Washington within the Yakima Indian Reservation pursuant to Public Law 280 violates either the statutory requirements of Public Law 280 or the Equal Protection Clause of the Fourteenth Amendment.”


text:
    No. 77-952.
    Group Life & Health Insurance Co., aka Blue Shield of Texas, et al. v. Royal Drug Co., Inc., dba Royal Pharmacy of Castle Hills et al., et al.
   C. A. 5th Cir. Motion of Blue Shield Assn, for leave to file a brief as amicus curiae and certiorari granted.


text:
    No. 77-841.
    Quern, Director, Department of Public Aid of Illinois v. Jordan.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 77-592. No. 77-5448. No. 77-5456.
    Seymour v. United States; Brown et al. v. United States; and Newsome v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-668.
    Alabama Association of Insurance Agents, Inc., et al. v. Board of Governors of the Federal Reserve System.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-669.
    De Mateos, Administratrix v. Texaco Inc. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-722.
    Carroll, Governor of Kentucky, et al. v. Department of Health, Education, and Welfare et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-786.
    Moore v. Richmond, Fredericksburg & Potomac Railroad.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-865.
    Powell v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-872.
    Committee of Interns and Residents v. National Labor Relations Board et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-963.
    Tennessee v. Armstrong.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 77-964.
    Iranian Shipping Lines, S. A. v. Arya Shipping Lines, S. A., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-965.
    Tamari et al., dba Wahbe Tamari & Sons Co. v. Bache & Co. (Lebanon) S. A. L. et al.
   C.-A. 7th Cir. Certiorari denied.


text:
    No. 77-967.
    Crownover v. Gleichman et al.
   Sup. Ct. Colo. Certiorari denied.


text:
    No. 77-973.
    Faulkner v. Baldwin Piano & Organ Co. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-985.
    Geisinger v. Board of County Commissioners of Miami County, Ohio, et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 77-1070.
    Koehnen v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-1079.
    Lombardi v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5466.
    Robinson v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5672.
    Boord v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-5690.
    Hughes v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 77-5750.
    Phillips v. Williams et al.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 77-5760.
    Smith v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 77-5776.
    Mullins v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5822.
    Woods v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5837.
    Ilacqua v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5838.
    Eaglin v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5863.
    Talamas v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5864.
    Kehn v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5887.
    Laing v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5893.
    Bailey v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5915.
    Doherty v. Internal Revenue Service et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-5988.
    Johnson v. Hatrak, Prison Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5997.
    Gardner v. Superintendent, Virginia State Penitentiary.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6000.
    Haley v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 77-6006.
    Tyler v. Peach et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6013.
    Wyche v. Warden, Maryland Penitentiary.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6015.
    Toler v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6028.
    Newell et al. v. Davis, Corrections Director, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6047.
    Selby v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 77-6058.
    Doyle v. Chester County Water Resources Authority.
   Pa. Commw. Ct. Certiorari denied.


text:
    No. 77-6064.
    Barron et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6070.
    Smith v. Mabry, Correction Commissioner.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6109.
    Schnitzer v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-672.
    National Labor Relations Board v. Gray-Grimes Tool Co., Inc.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Brennan, Mr. Justice White, and Mr. Justice Marshall would grant certiorari.


text:
    No. 77-695. No. 77-697.
    American Public Gas Assn. et al. v. Federal Energy Regulatory Commission et al.; and Amerada Hess Corp. et al. v. Federal Energy Regulatory Commission.
   C. A. D. C. Cir. Certiorari denied.

Mr. Justice Stewart and Mr. Justice Powell took no part in the consideration or decision of these petitions.


text:
    No. 77-759. No. 77-761. No. 77-762. No. 77-966.
    Whitman Area Improvement Council et al. v. Resident Advisory Board et al.; Philadelphia Housing Authority v. Resident Advisory Board of Philadelphia et al.; Redevelopment Authority of the City of Philadelphia v. Resident Advisory Board of Philadelphia et al.; and City of Philadelphia et al. v. Resident Advisory Board of Philadelphia et al.
   C. A. 3d Cir. Motion of Nellie Reynolds for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-764.
    Crisp, Warden, et al. v. Bromley et al.
   C. A. 10th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-866.
    Califano, Secretary of Health, Education, and Welfare v. White.
   C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Mr. Justice Blackmun Mr. Justice Brennan and Mr. Justice . Marshall,

text:
    No. 77-5653.
    Knapp v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.

Mr. Justice Blackmun

concurs in the denial of certiorari in this case on the usual understanding that it is without prejudice to petitioner’s seeking relief by habeas corpus.

Mr. Justice Brennan and Mr. Justice . Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


text:
    No. 77-5728.
    Jones v. Virginia.
   Sup. Ct. Va. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant certiorari.


text:
    No. 77-5735.
    Pickens, aka Coakley v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


author: Mr. Justice Brennan,

text:
    No. 77-5869.
    Clift v. Alabama.
   Sup. Ct. Ala. Certiorari denied.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins,

dissenting.

Petitioner was indicted for murder in Alabama state court, convicted of second-degree murder after a jury trial, and sentenced to 25 years’ imprisonment. Thereafter, he was brought to trial on a separate indictment charging the additional offense of robbery arising out of the same episode, over his objection that this indictment violated the Double Jeopardy Clause. He was convicted after a second trial, and sentenced to- an additional term of 10 years’ imprisonment. On appeal, the Alabama Court of Appeals affirmed the robbery conviction, but ordered that the robbery sentence run concurrently with the sentence imposed for the murder conviction. 352 So. 2d 836 (1976). The Supreme Court of Alabama reversed the Court of Appeals’ determination as to sentencing, holding that because it found robbery and murder to be separate offenses for double jeopardy purposes, each offense could be the subject of a separate prosecution even if both crimes were perpetrated during the same transaction. 352 So. 2d 838 (1977).

I would grant the petition for certiorari and reverse the judgment of the Supreme Court of Alabama. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring). See Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting), and cases collected therein.


text:
    No. 77-6018.
    Arunga v. Ellis, Chief, UI Division, Department of Employment Development.
   C. A. 9th Cir. Certiorari and/or motion for leave to file petition for writ of mandamus denied.


text:
    No. 77-582. No. 77-607. No. 77-766. No. 77-876. No. 77-5678. No. 77-5696. No. 77-5850.
    Chase Brass & Copper Co., Inc. v. Franchise Tax Board of California, Clark v. Florida, Albert v. First National Bank & Trust Company of Marquette, Executor, Wright v. United States, Quraishi v. Nyquist, Commissioner of Education of New York, Timmins v. Gore Newspapers Co., Inc., and Smiley v. California et al.,
   434 U. S. 1029;

434 U. S. 1013;

434 U. S. 1035;

434 U. S. 1036;

434 U. S. 1019;

434 U. S. 1020;

434 U. S. 1050.

Petitions for rehearing denied.


text:
    No. 76-749.
    Pfizer Inc. et al. v. Government of India et al.,
   434 U. S. 308.

Petition for rehearing denied.

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


text:
    No. 76-1796.
    Ottoboni et al. v. United States,
   434 U. S. 930.

Motion for leave to file petition for rehearing denied.


text:
    March 2, 1978
    No. 77-806.
    Gulf Oil Corp. v. Connecticut Public Utilities Control Authority et al.
   C. A. 3d Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    March 6, 1978
    No. 77-1072.
    Yee v. Yee et al.
   Appeal from Sup. Ct. Hawaii dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-1091.
    Epstein v. Civil Service Commission et al.
   Appeal from App. Ct. Ill., 1st Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-5742.
    Frakes v. United States.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded to the United States District Court for the Western District of Kentucky with instructions to grant the Government’s motion to dismiss the indictment.

The Chief Justice, Mr. Justice White, and Mr. Justice Rehnquist dissent.


text:
    No. 77-172.
    Morelock et al. v. NCR Corp.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Lorillard v. Pons, 434 U. S. 575 (1978).


text:
    No. 76-6258.
    Whitehead v. United States.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Simpson v. United States, ante, p. 6.


text:
    No. 77-567.
    New York State Parole Board et al. v. Coralluzzo.
   C. A. 2d Cir. [Certiorari granted, 434 U. S. 996.] Motion of respondent to dismiss writ of certiorari granted and the writ is dismissed as improvidently granted.

Mr. Justice White and Mr. Justice Rehnquist dissent.


text:
    No. —.
    National Citizens Committee for Broadcasting v. Federal Communications Commission et al.
   C. A. D. C. Cir. Motion of petitioner to dispense with printing petition for writ of certiorari denied.


text:
    No. A-688.
    Long Island Railroad Co. v. Aberdeen & Rockfish Railroad Co. et al.
   The application for a stay of the judgment of the United States Court of Appeals for the Fifth Circuit in case No. 77-1054, presented to Mr. Justice Powell, and by him referred to the Court, is granted, only insofar as the judgment requires applicant Long Island Railroad Company to keep in a separate trust fund the proceeds of the interim 12.5 per cent terminal surcharge, pending the timely filing of a petition for writ of certiorari. Should a timely petition for writ of certiorari not be filed or be denied, this stay is to terminate automatically. If the petition for writ of certiorari is granted, this stay is to remain in effect pending the judgment of this Court. In all other respects,' the application for stay is denied.

Mr. Justice Powell took no part in the consideration or decision of this application.


text:
    No. 76-1200.
    Crist, Warden, et al. v. Cline et al.
   Appeal from C. A. 9th Cir. [Probable jurisdiction postponed, 430 U. S. 982.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae granted and 15 additional minutes allotted for that purpose.


text:
    No. 77-240.
    St. Paul Fire & Marine Insurance Co. et al. v. Barry et al.
   C. A. 1st Cir. [Certiorari granted, 434 U. S. 919.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae granted and 15 additional minutes allotted for that purpose. Petitioners also allotted 15 additional minutes for oral argument.


text:
    No. 77-444.
    Penn Central Transportation Co et al. v. New York City et al.
   Appeal from Ct. App. N. Y. [Probable jurisdiction noted, 434 U. S. 983.] Motions of Pacific Legal Foundation, National Trust for Historic Preservation et al., and Real Estate Board of New York, Inc., for leave to file briefs as amici curiae granted. Motion of the Solicitor General to participate in oral argument as amicus curiae granted and 15 minutes allotted for that purpose. Appellants also allotted 15 additional minutes for oral argument.


text:
    No. 77-653.
    Swisher, State’s Attorney for Baltimore City, et al. v. Brady et al.
   Appeal from D. C. Md. [Probable jurisdiction noted, 434 U. S. 963.] Motion of the State Public Defender of California for leave to file a brief as amicus curiae granted.


text:
    No. 77-6029.
    Pillon v. United States District Court for the District of South Carolina et al.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 77-891.
    Beal, Secretary of Welfare of Pennsylvania, et al. v. Franklin et al.
   Appeal from D. C. E. D. Pa. Probable jurisdiction noted.


text:
    No. 77-515.
    Holt Civic Club et al. v. City of Tuscaloosa et al.
   Appeal from D. C. N. D. Ala. Further consideration of question of jurisdiction postponed to hearing of case on the merits.


text:
    No. 77-920.
    Thor Power Tool Co. v. Commissioner of Internal Revenue.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 77-922.
    Chrysler Corp. v. Brown, Secretary of Defense, et al.
   C. A. 3d Cir. Certiorari granted.


text:
    (See also Nos. 77-1072 and 1091, supra).

    No. 76-5632.
    Oliver v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-637.
    Reeve et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-661.
    Moss v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-769.
    United Steelworkers Justice Committee v. United States et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-773.
    Lamont v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-782.
    American Iron & Steel Institute et al. v. Environmental Protection Agency.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-783.
    Morrison v. Reed, Secretary, Department of Correction of North Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-795.
    Wegner et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-839.
    Speidel, aka Rojas v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-863.
    Buthorn v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-879.
    Bailey Co., Inc. v. Equal Employment Opportunity Commission.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-906.
    Schott et ux. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-989.
    Wolf v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 77-1011.
    Passarelli v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1012.
    Fribesco S. A. et al. v. Mitsui & Co. (U. S. A.), Inc., et al.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 77-1069.
    Keiffer et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1071.
    Linfield v. Board of Higher Education of the City of New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 77-1122.
    Anthony v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1125.
    Perkins v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5174.
    Murry v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5748.
    Smith v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5769.
    Apuzzo v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5775.
    Jiminez-Valencia v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5784.
    Wofford v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5831.
    Lewis v. Chavez, Correctional Superintendent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5836.
    Payton v. Carlson, Director, U. S. Bureau of Prisons, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-5852.
    Ricard v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5857.
    Mawyer v. Califano, Secretary of Health, Education, and Welfare.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-5865.
    Walker v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-5890.
    Shanks v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5923.
    Morris, aka Hundley v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5927.
    Mase v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5930.
    Meeks v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 77-5933.
    Alvarez-Tostado v. United States.
   C. A 9th Cir. Certiorari denied.


text:
    No. 77-5939.
    Ilacqua v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-5948.
    Young v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-5962.
    Harmon v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6024.
    Lewis et ux. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 77-6030.
    Johnson v. Nunes et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-6032.
    Hurd v. Hurd.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 77-6036.
    Persinger v. Illinois.
   App. Ct. Ill., 5th Dist. Certiorari denied.


text:
    No. 77-6044.
    McCrary v. LeFevre, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6048.
    Jones v. McCracken.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6050.
    Houston v. Egeler, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6053.
    Hurt v. Lorton Complex et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6083.
    Hulse v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6110.
    Deaton v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6116.
    Moynagh v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-6120.
    Moorer v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6132.
    Piccirillo v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6145.
    Lyon v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6148.
    King v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6150.
    Whitefield v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6152.
    Patton v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6159.
    Kirkland v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 77-1028.
    Insurance Company of North America v. Mosley et al.
   Sup. Ct. Fla. Motion of respondent Robert Mosley for leave to proceed in forma pauperis granted. Motion for attorney fees denied. Certiorari denied.


text:
    No. 77-1046.
    Marco Dental Products, Inc. v. Austin.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice White would grant certiorari.


text:
    No. 76-1334. No. 76-6372. No. 77-709. No. 77-5809. No. 77-5841. No. 77-5896.
    Bordenkircher, Penitentiary Superintendent v. Hayes, Quilloin v. Walcott et vir, Weinberger v. Equifax, Inc. (formerly Retail Credit Co.), Turner v. Landry, Hollis v. New York, and Crane v. United States,
   434 U. S. 357;

434 U. S. 246;

434 U. S. 1035;

434 U. S. 1049;

434 U. S. 1049;

434 U. S. 1039.

Petitions for rehearing denied.


text:
    No. 77-5516.
    Beachem v. United States et al.,
   Motion for leave to file petition for rehearing denied.


text:
    March 17, 1978
    No. 77-1033.
    Briscoe, Governor of Texas, et al. v. Escalante et al.,
   ante, p. 901.

Petition for rehearing denied. Motion of appellees for issuance of judgment forthwith, presented to Mr. Justice Powell, and by him referred to the Court, granted.


text:
    March 20, 1978
    No. 77-1110.
    Chesapeake & Ohio Railway Co. v. Illinois Central Gulp Railroad Co.
   C. A. 7th Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    No. 77-794.
    Silverton v. California.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question.


text:
    No. 77-987.
    Forge et al. v. Minnesota.
   Appeal from Sup. Ct. Minn, dismissed for want of substantial federal question.


text:
    No. 77-1050.
    DeKam et al. v. City of Southfield et al.
   Appeal from Ct. App. Mich, dismissed for want of substantial federal question.


text:
    No. 77-1130.
    Potts v. Kentucky.
   Appeal from Ct. App. Ky. dismissed for want of substantial federal question.


text:
    No. 77-6055.
    Smith v. Louisiana.
   Appeal from Sup. Ct. La. dismissed for want of substantial federal question.'


text:
    No. 77-1056.
    Sunbeam Television Corp. et al. v. Shevin, Attorney General of Florida, et al.
   Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question.

Mr. Justice Brennan, Mr. Justice White, and Mr. Justice Blackmun would note probable jurisdiction and set case for oral argument.


text:
    No. A-722.
    Martin v. Kansas.
   Application for stay of mandate of the Supreme Court of Kansas, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. A-747 (Nos. 77-1236 and 77-1237).
    General Atomic Co. v. Felter, Judge, et al.
   Application for stay of all further proceedings in United Nuclear Corp. v. General Atomic Co., in the District Court of New Mexico, Santa Fe County, presented to Mr. Justice White, and by him referred to the Court, denied.


text:
    No. 76-1607.
    Securities and Exchange Commission v. Sloan.
   C. A. 2d Cir. [Certiorari granted, 434 U. S. 901.] Motion of Canadian Javelin Ltd. for leave to participate in oral argument as amicus curiae denied.


text:
    No. 76-1701.
    Tennessee Valley Authority v. Hill et al.
   C. A. 6th Cir. [Certiorari granted, 434 U. S. 954.] Motions of Eastern Band of Cherokee Indians and East Tennessee Valley Landowners’ Assn, for leave to file briefs as amici curiae granted.


text:
    No. 77-444.
    Penn Central Transportation Co. et al. v. New York City et al.
   Appeal from Ct. App. N. Y. [Probable jurisdiction noted, 434 U. S. 983.] Motion of Committee to Save Grand Central Station et al. for leave to file a brief as amici curiae granted.


text:
    No. 77-560.
    Gardner v. Westinghouse Broadcasting Co.
   C. A. 3d Cir. [Certiorari granted, 434 U. S. 984.] Motion of Equal Employment Advisory Council for leave to file a brief as amicus curiae granted.


text:
    No. 77-6259.
    Seagroves v. Tennessee.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 77-1094.
    Galante v. Attorney General of the United States et al.
   Motion for leave to file petition for writ of habeas corpus denied.

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


text:
    No. 77-120.
    Dougherty County, Georgia, Board of Education, et al. v. White.
   Appeal from D. C. M. D. Ga. Probable jurisdiction noted.


text:
    No. 77-803.
    Barry, Chairman, Racing and Wagering Board of New York, et al. v. Barchi.
   Appeal from D. C. S. D. N. Y. Probable jurisdiction noted.


text:
    No. 77-1115.
    Lalli v. Lalli, Administratrix, et al.
   Appeal from Ct. App. N. Y. Probable jurisdiction noted.


text:
    No. 77-991. No. 77-5999.
    Califano, Secretary of Health, Education, and Welfare v. Aznavorian; and Aznavorian v. Califano, Secretary of Health, Education, and Welfare.
   Appeals from D. C. S. D. Cal. Motions of Grace Aznavorian for leave to proceed m forma pauperis granted. Probable jurisdiction noted, cases consolidated, and a total of one hour allotted for oral argument.


text:
    No. 77-1000.
    Chicago, Rock Island & Pacific Railroad Co. v. Rediker.
   Ct. App. Kan. Certiorari granted.


text:
    No. 77-1016.
    United California Bank et al., Co-Executors v. United States.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 77-1105.
    Herbert v. Lando et al.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 77-654.
    Great Atlantic & Pacific Tea Co., Inc. v. Federal Trade Commission.
   C. A. 2d Cir. Certiorari granted.

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


text:
    No. 77-5781.
    Rakas et al. v. Illinois.
   App. Ct. 111., 3d Dist. Motion of petitioners for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 77-603.
    Martorano v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-713.
    West v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-771. No. 77-5755.
    Schurgin v. United States; and Rimar v. United States.
   C. A., 6th Cir. Certiorari denied.


text:
    No. 77-780.
    Cornfeld, dba Grayhall, Inc. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-809.
    Joe v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 77-818.
    Commercial National Bank of Dallas v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-846.
    Graves et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-859.
    G. M. Leasing Corp. et al. v. United States et al.
   C. A. 10th Cir. Certiorari denied.