author: Mr. Justice Marshall Mr. Justice Rehnquist, with whom The Chief Justice and Mr. Justice Stewart join,

text:
    HILL, ATTORNEY GENERAL OF TEXAS v. STONE ET AL.
    No. 73-1723.
    Argued January 14, 1975
    Decided May 12, 1975

      Marshall, J., delivered the opinion of the Court, in which Brennan, White, Blackmun,. and Powell, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Stewart, J., joined, post, p. 302. Douglas, J., took no part in the consideration or decision of the case.

      David M. Kendall, First Assistant Attorney General of Texas, argued the cause for appellant. On the brief were John L. Hill, Attorney General, pro se, Larry F. York, former First Assistant Attorney General, and Mike Willatt and G. Charles Kobdish, Assistant Attorneys General.

      Don Gladden argued the cause for appellees. With him on the brief for appellees Stone et al. was Marvin Collins. S. G. Johndroe, Jr., filed a brief for appellees city of Fort Worth et al.

         Edward W. Dunbar filed a brief for El Paso County Junior College District as amicus curiae urging affirmance.
      Briefs of amici curiae were filed by James F. McKibben, Jr., for the city of Corpus Christi; by Marshall Boykin III for William O. Harrison, Jr., et al.; and by Joe Purcell, Manly W. Mumford, Fred H. Rosenfeld, and Harold B. Judell for the city of Phoenix et al.

   Mr. Justice Marshall

delivered the opinion of the Court.

This case requires us once again to consider the constitutionality of a classification restricting the right to vote in a local election.

Appellees, residents of Fort Worth, Tex., brought this action to challenge the state and city laws limiting the franchise in city bond elections to persons who have made available for taxation some real, mixed, or personal property. A three-judge District Court held that this restriction on suffrage did not serve any compelling state interest and therefore violated the Equal Protection Clause of the Fourteenth Amendment. Stone v. Stovall, 377 F. Supp. 1016 (ND Tex. 1974). We granted , a partial stay of the District Court’s order pending disposition of the appeal. 416 U. S. 963 (1974). We subsequently noted probable jurisdiction. 419 U. S. 822 (1974).

I

The Texas Constitution provides that in all municipal elections “to determine expenditure of money or assumption of debt,” only those who pay taxes on property in the city are eligible to vote. Tex. Const. Art. 6, § 3. In addition, it directs that in any election held “for the purpose of issuing bonds or otherwise lending credit, or expending money or assuming any debt,” the franchise shall be limited to those qualified voters “who own taxable property in the . . . district . . . where such election is held,” and who have “duly rendered the same for taxation.” § 3a. The implementing statutes impose the same requirements, adding that to qualify for voting a resident of the district holding the election must have “rendered” his property for taxation to the district during the proper period of the election year, and that he must sign an affidavit indicating that he has done so. Tex. Elec. Code §§ 5.03, 5.04, 5.07 (1967 and Supp. 1974-1975). The Fort Worth City Charter further provides that the city shall not issue bonds unless they are authorized in an election of the “qualified voters who pay taxes on property situated within the corporate limits of the City of Ft. Worth.” Charter of the City of Fort Worth, c. 25, § 19.

In 1969, after our decisions in Kramer v. Union Free School District No. 15, 395 U. S. 621 (1969), and Cipriano v. City of Houma, 395 U. S. 701 (1969), the Texas Attorney General devised a “dual box election procedure” to be used in all the State’s local bond elections. Under this procedure, all persons owning taxable property rendered for taxation voted in one box, and all other registered voters cast their ballots in a separate box. The results in both boxes were tabulated, and the bond issue would be deemed to have passed only if it was approved by a majority vote both in the “renderers’ box” and in the aggregate of both boxes. This scheme ensured that the bonds would be safe from challenge even if the state-law restrictions on the franchise were later held unconstitutional.

On April 11, 1972, the city of Fort Worth conducted a tax bond election, using the dual-box system to authorize the sale of bonds to improve the city transportation system and to build a city library. Since the state eligibility restrictions had previously been construed to require only that the prospective voter render some property for taxation, even if he did not actually pay any tax on the property, Montgomery Independent School District v. Martin, 464 S. W. 2d 638 (Tex. 1971), all those who signed an affidavit indicating that they had rendered some property were permitted to vote in the “renderers’ box.” Of the 29,000 voters who participated in the bond election, approximately 24,000 voted as Tenderers and 5,000 as nonrenderers. The transportation bond proposal was approved in both boxes and in the aggregate. The library bonds, however, were less well received. Although the library bonds were approved by a majority of all the voters, they were defeated in the Tenderers’ box, and were therefore deemed not to have been authorized.

The appellees, three of whom had voted as nonrenderers, then filed this action in the United States District Court for the Northern District of Texas, claiming that the partial disfranchisement of persons not rendering property for taxation denied them equal protection of the laws. A three-judge District Court was convened; it heard argument, and on March 25, 1974, it entered judgment for the appellees. The court declared the relevant provisions of the Texas Constitution, the Texas Election Code, and the Fort Worth City Charter unconstitutional “insofar as they condition the right to vote in bond elections on citizens’ rendering property for taxation.” 377 F. Supp., at 1024. Although the court ruled that its decree would not make invalid any bonds already authorized or any bond elections held before the date of the judgment, it ordered the city defendants to count the ballots of those who had voted in the nonrenderers’ box, and it enjoined any future restriction of the franchise in state bond elections to those who have rendered property for taxation.

While all three judges concurred in the judgment, each member of the panel wrote separately. Judge Thorn-berry concluded that the Texas scheme was invalid because it divided the otherwise eligible voters into two classifications — renderers and nonrenderers — and that the disfranchisement of those who did not render property for taxation violated the Equal Protection Clause. Judge Woodward concurred in the result on the ground that the rendering requirement was tantamount to a requirement of property ownership, which he concluded was impermissible under this Court’s decision in Harper v. Virginia Board of Elections, 383 U. S. 663 (1966). Judge Brewster concurred in the judgment, but only because he thought the case was controlled by our decision in City oj Phoenix v. Kolodziejski, 399 U. S. 204 (1970), where we held invalid a statute restricting the franchise in a general obligation bond election to real property owners.

II

Appellant, the Attorney General of Texas, argues that none of this Court’s cases draws into question a voting restriction of the sort used in this election. The eligibility scheme does not impose a wealth restriction on the exercise of the franchise, the appellant contends, and any classification that it does create is reasonable and should be upheld on that basis.

A

In Kramer v. Union Free School District No. 15, 395 U. S. 621 (1969), we held that in an election of general interest, restrictions on the franchise other than residence, age, and citizenship must promote a compelling state interest in order to survive constitutional attack. The appellant in Kramer challenged a New York statute that limited eligibility to vote in local school board elections to persons who owned or leased taxable real property in the school district, or who had children enrolled in the public schools. We expressed no opinion in Kramer whether a State might in some circumstances limit the franchise to those “primarily interested” in the election, but we held that the New York statute had impermissibly excluded many persons with a distinct and direct interest in the decisions of the school board, while at the same time including others with no substantial interest in school affairs. The fact that the school district was supported by a property tax did not mean that only those subject to direct assessment felt the effects of the tax burden, and the inclusion of parents would not exhaust the class of persons interested in the conduct of local school affairs.

In Cipriano v. City of Houma, 395 U. S. 701 (1969), decided the same day, we invalidated a Louisiana statute limiting the franchise in local revenue bond elections to the “property taxpayers” of the district. As in Kramer, the city had failed to prove that under its classification all those excluded from voting were in fact substantially less interested or affected than those permitted to vote. Id., at 704. The bonds in Cipriano were intended to finance extension and improvement of the city's utility system. We pointed out that the operation of a utility system affects property owners and nonproperty owners alike, and since those not included among the eligible voters often use the utility services, they might well feel the effect of outstanding revenue bonds through the utility rates they would be required to pay.

The next Term, in City of Phoenix v. Kolodziejski, supra, we ruled unconstitutional a similar restriction of the franchise to real property taxpayers in a general obligation bond issue. The interests of property owners and nonproperty owners in a general obligation bond issue, we held, were not sufficiently disparate to justify excluding those owning no real property. The residents of the city, whether property owners or not, had a common interest in the facilities that the bond issue would make available, and they would all be substantially affected by the outcome of the election, both in terms of the benefits provided and the obligations incurred. Under the Phoenix bond arrangement, we noted that some of the debt service would be paid out of revenues other than property tax receipts, so nonproperty owners would be directly affected to some extent. We added, however, that even where the municipality looks only to property tax revenues for servicing general obligation bonds, the franchise could not legitimately be restricted to real property owners:

“Property taxes may be paid initially by property owners, but a significant part of the ultimate burden of each year’s tax on rental property will very likely be borne by the tenant rather than the landlord since . . . the landlord will treat the property tax as a business expense and normally will be able to pass all or a large part of this cost on to the tenants in the form of higher rent.” 399 U. S., at 210.

In addition, we noted that property taxes on commercial property would normally be treated as a cost of doing business and would “be reflected in the prices of goods and services purchased by nonproperty owners and property owners alike.” Id., at 211.

The basic principle expressed in these cases is that as long as the election in question is not one of special interest, any classification restricting the franchise on grounds other than residence, age, and citizenship cannot stand unless the district or State can demonstrate that the classification serves a compelling state interest. See Kramer, 395 U. S., at 626-627; Cipriano, 395 U. S., at 704.

The appellant’s claim that the Fort Worth election was one of special interest and thus outside the principles of the Kramer case runs afoul of our decision in City of Phoenix v. Kolodziejski, supra. In the Phoenix casé, we expressly stated that a general obligation bond issue— even where the debt service will be paid entirely out of property taxes as in Fort Worth — is a matter of general interest, and that the principles of Kramer apply to classifications limiting eligibility among registered voters.

In making the alternative contentions that the “rendering requirement” creates no real “classification,” or that the classification created should be upheld as being reasonable, the appellant misconceives the rationale of Kramer and its successors. Appellant argues that since all property is required to be rendered for taxation, and since anyone can vote in a bond election if he renders any property, no matter how little, the Texas scheme does not discriminate on the basis of wealth or property. Our cases, however, have not held or intimated that only property-based classifications are suspect; in an election of general interest, restrictions on the franchise of any character must meet a stringent test of justification. The Texas scheme creates a classification based on rendering, and it in effect disfranchises those who have not rendered their property for taxation in the year of the bond election. Mere reasonableness will therefore not suffice to sustain the classification created in this case.

B

The appellant has sought to justify the State’s rendering requirement solely on the ground that it extends some protection to property owners, who will bear the direct burden of retiring the city’s bonded indebtedness. The Phoenix case, however, rejected this analysis of the “direct” imposition of costs on property owners. Even under a system in which the responsibility of retiring the bonded indebtedness falls directly on property taxpayers, all members of the community share in the cost in various ways. Moreover, the construction of a library is not likely to be of special interest to a particular, well-defined portion of the electorate. Quite apart from the general interest of the library bond election, the appellant’s contention that the rendering requirement imposes no real impediment to participation itself undercuts the claim that it serves the purpose of protecting those who will bear the burden of the debt obligations. If anyone can become, eligible to vote by rendering property of even negligible value, the rendering requirement can hardly be said to select voters according to the magnitude of their prospective liability for the city’s indebtedness.

The appellee' city officials argue that the rendering qualification furthers another state interest: it encourages prospective voters to render their property and thereby helps enforce the State’s tax laws. This argument is difficult to credit. The use of the franchise to compel compliance with other, independent state objectives is questionable in any context. See United States v. Texas, 252 P. Supp. 234, 253-254 (WD Tex.), aff’d, 384 U. S. 155 (1966). It seems particularly dubious here, since under the State’s construction of the rendering requirement, an individual will be given the right to vote if he renders any property at all, no matter how trivial. Those rendering solely to earn the right to vote in bond elections may well render property of minimal value, in order to qualify for voting without imposing upon themselves a substantial tax liability. The rendering requirement thus seems unlikely to have any significant impact on the asserted state policy of encouraging each person to render all of his property.

In sum, the Texas rendering requirement erects a classification that impermissibly disfranchises persons otherwise qualified to vote, solely because they have not rendered some property for taxation. The Phoenix case establishes that Fort Worth’s election was not a “special interest” election, and the state interests proffered by-appellant and the city officials fall far short of meeting the “compelling state interest” test consistently applied in Kramer, Cipriano, and Phoenix.

Ill

In order to avoid the possibility of upsetting previous bond elections in the State, the District Court declined to give retroactive effect to its judgment. We have followed the same course in our prior cases dealing with voting classifications in bond elections, see Cipriano, 395 U. S., at 706; Phoenix, 399 U. S., at 213-215, and we agree with the District Court’s determination not to give its ruling retroactive effect. Since the portion of the District Court’s judgment invalidating the state constitutional and statutory provisions has been in full effect since that time, and since some local bond elections may subsequently have been conducted in reliance on that judgment, we hold that the District Court’s ruling should- apply only to those bond authorization elections that were not final on the date of the District Court’s judgment. As to other jurisdictions that may have restrictive voting classifications similar to those in Texas, we hold that our decision should not apply where the authorization to issue the securities is legally complete as of the date of this decision.

Affirmed.

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

Mr. Justice Rehnquist, with whom The Chief Justice and Mr. Justice Stewart join,

dissenting.

The Texas Constitution restricts the vote in general obligation bond elections to those who render taxable property with local taxing officials. Tex. Const. Art. 6, § 3a. All real, personal, or mixed property owned by any citizen of the State is taxable property under state law. Tex. Const. Art. 8, § 1; Tex. Rev. Civ. Stat. Arts. 7145, 7147 (1960 and Supp. 1974-1975). And all citizens of the State are required by law to render all such taxable property with local taxing officials on a yearly basis in order that it be added to local tax rolls. Tex. Rev. Civ Stat. Arts. 7145, 7151, 7152, 7153, 7189 (1960 and Supp. 1974-1975).

The rendering requirement for voting is satisfied by the listing of any single item of property, even though of purely nominal worth, with taxing officials and the completion of an affidavit provided at polling places with a description of any single item of property which the voter has properly rendered. Tex. Elec. Code § 5.03 et seq. (1967 and Supp. 1974-1975); Montgomery Independent School District v. Martin, 464 S. W. 2d 638, 640 (Tex. 1971); Dubose v. Ainsworth, 139 S. W. 2d 307, 308 (Tex. Civ. App. 1940). Rendering immediately before the election of any item of property qualifies, even though untimely under the rendering statutes, Markowsky v. Newman, 134 Tex. 440, 449-450, 136 S. W. 2d 808, 813 (1940), and the absence of adequate facilities for the rendering of property eliminates the rendition requirement. Hanson v. Jordan, 145 Tex. 320, 198 S. W. 2d 262 (1946); Green v. Stienke, 321 S. W. 2d 95 (Tex. Civ. App. 1959). Under state law, the Texas elector who renders a pair of shoes or a bicycle on election day casts a vote no different from that of a rendering cattle baron.

Not surprisingly, the Texas Supreme Court in Montgomery Independent School District v. Martin, supra, upheld the rendering qualification:

. “[V] oter qualifications of ownership under the Texas constitutional and statutory provisions stated above, as interpreted by our decisions, are so universal as to constitute no impediment to any elector who really desires to vote in a bond election. A voter is qualified if he renders any kind of property of any value, and he need not have actually paid the tax.
”... One who is willing to vote for and impose . a tax on the property of another should be willing to assume his distributive share of the burden. . . .
“. . . To allow some property owners to vote in that kind of an election, and at the same time to permit them to avoid their fair share of the resulting obligation, would confer preferential rights.” 464 S. W. 2d, at 640-642.

Appellees in the instant case have not drawn our attention to a totally propertyless citizen of Fort Worth, poorer than Diogenes, whose total lack of ownership preeludes him from complying with the rendering requirement. Instead, the alleged deprived class in the instent case consists of those who violated their legal obligation under state law, choosing not to render any property by reason of carelessness, a tax-avoidance motive, or otherwise. And the alleged deprivation of equal protection lies in self-disfranchisement caused by their failure to utilize readily available facilities to render property.

Since laws considered by this Court under the Equal Protection Clause are not abstract propositions subject to a requirement of disembodied equality which invalidates classifications without examination of the circumstances surrounding them, Tigner v. Texas, 310 U. S. 141, 147 (1940), we have without exception in passing upon governmental requirements affecting voting looked to the character of the classification challenged as denying equal protection and the individual interests affected by it. Williams v. Rhodes, 393 U. S. 23, 30 (1968); Dunn v. Blumstein, 405 U. S. 330, 335, 336 (1972). And our prior cases have held that scrutiny under this Clause is triggered only where restrictions have a real and appreciable impact on ability to exercise the franchise. See McDonald v. Board of Election, 394 U. S. 802, 807-808 (1969); Kramer v. Union Free School District No. 15, 395 U. S. 621, 626-627, n. 6 (1969); Gordon v. Lance, 403 U. S. 1, 5 (1971); Bullock v. Carter, 405 U. S. 134, 144 (1972).

In Rosario v. Rockefeller, 410 U. S. 752 (1973), we upheld a New York registration requirement requiring registration in a party 11 months in advance of its primary as a prerequisite to participation in the primary, stating:

“We cannot accept the petitioners’ contention. None of the cases on which they rely is apposite to the situation here. In each of those cases, the State totally denied the electoral franchise to a particular class of residents, and there was no way in which the members of that class could have made themselves eligible to vote. . . . Section 186 of New York’s Election Law, however, is quite different. It did not absolutely disenfranchise the class to which the petitioners belong — newly registered voters .... Eather, the statute merely imposed a time deadline on their enrollment, which they had to meet in order to participate in the next primary. . . . The petitioners do not say why they did not enroll prior to the cutoff date; however, it is clear that they could have done so, but chose not to. Hence, if their plight can be characterized as disenfranchisement at all, it was not caused by § 186, but by their own failure to take timely steps to effect their enrollment.” Id., at 757-758.

Even the four dissenting Members of the Court in that case would have required a “serious burden or infringement” on the right to vote as a prerequisite to the establishment of a constitutional violation. Id., at 767 (Powell, J., joined by Douglas, Brennan, and Marshall, JJ., dissenting). See also id., at 765.

In the immediate case, appellees and the class of nonrenderers they represent could have easily complied with the rendering qualification, imposed not only as a prerequisite for voting but also as a legal duty necessary to the orderly operation of a voluntary self-assessment taxing system. The burden imposed by the qualification was de .minimis and compliance was universally easy.

Despite this, the Court, without inquiry into the impact of the Texas qualification on appellees’ ability to vote, concludes that the Texas scheme is unconstitutional. Ante, at 298, 306-301.

As might be expected when dealing with provisions of state law in the abstract, the theoretical arguments advanced both in support of the constitutionality of the provisions involved here, and against their constitutionality, tend to cut both ways. The State contends that because anyone could have complied with the rendering qualification, the burden on the franchise is minimal. The Court disposes of this contention by concluding that in such event the rendering requirement must serve no valid state policy. The State also contends that the rendering requirement does serve the state policy of increasing the amount of personal property on the tax rolls, which property in turn will be taxed to retire the bonded indebtedness incurred as a result of the election in question. The Court’s response to this contention is that if this be the case, the requirement unreasonably burdens the franchise. This constitutional dialogue is somewhat less than edifying, and may be traced in part to the dichotomy drawn by Kramer v. Union Free School District No. 15, supra, where all voting qualifications in an “election of general interest,” ante, at 295, were herded into two categories. Those dealing with “residence, age, and citizenship,” ibid., received the Court’s imprimatur, while the “strict scrutiny” test was to be applied to other requirements. The basis of this judicially created classification would itself scarcely survive a “rational basis” test, unexplained as it is by any of our decisions. But even taking Kramer on its own terms, no sound reason is advanced for applying it to the situation before us now.

The Court distinguishes, ante, at 300 n. 9, our decision in Rosario on' the grounds that the New York registration requirement involved in that case, unlike the Texas rendering qualification for bond elections, was directed toward “ ‘preserving] the integrity of the electoral process.’ ”

As a factual matter, the offered distinction is a doubtful one. The purpose sought to be served by the registration requirement examined in Rosario was the prevention of “raiding”: the crossing of party lines by members of one party in order to affect the outcome of the primary election of another political party. The rendering qualification under challenge in the instant case is designed in part to prevent citizens who violate their legal obligations by totally avoiding any portion of their fair share of obligations resulting from a bond election, however small that share may be, from influencing the process which results in the imposition of such obligations. If the integrity of the electoral process is violated by allowing citizens, who are unwilling to assume the responsibilities of party membership, to vote in party primaries, it is difficult to understand how it is less violated by allowing citizens, who are unwilling to assume their fair share of the obligations occurring from a bond election, to vote in such an election.

As the Court indicates, ante, at 298 n. 7, appellees at oral argument asserted that the rendering requirement in practice functions as a property-related classification since realty and business personalty make up virtually all of the property actually subject to taxation in Fort Worth. However, appellees also conceded that their allegation was without support in the record in this case. Tr. of Oral Arg. 31. To the extent that the record does speak to appellees’ assertion, it shows the rendition of substantial amounts of personal property in Fort Worth and in the State generally. App. 68, 81-84. While one member of the three-judge panel below indicated his suspicion that the rendering requirement operated as a de facto exclusion of non-real-property owners, another member of the panel indicated his disagreement. Compare 377 F. Supp. 1016, 1020 • (opinion of Thorn-berry, J.), with id., at 1025 (opinion of Woodward, J., specially concurring). In light of the serious question raised by this disagreement and the absence of evidence in the record resolving it, I would vacate the judgment below and remand this case for factual determination of whether the rendering requirement as administered in Texas has the practical effect of impermissibly disfranchising identifiable groups of voters such as non-real-property owners and thereby constitutes a genuine burden on the franchise. Cf. City of Phoenix v. Kolodziejski, 399 U. S. 204 (1970).

       To “render” property for taxation means to list it with the tax assessor-collector of the taxing district in question. Property is “rendered” for taxation either when the owner reports it or when the tax assessor-collector places it on the tax rolls himself. Taxable property includes all real, mixed, and personal property with limited exemptions, such as $3,000 for homesteads and $250 for household furnishings. Tex. Const. Art. 8, § 1. Although state law requires taxpayers to render all their taxable property, Tex. Rev. Civ. Stat. Arts. 7145, 7152 (1960 and Supp. 1974-1975), there is no penal sanction for failing to do so voluntarily.

       Of the five named appellees, three voted as nonrenderers and two as rendering property owners. They sought to represent the class of all persons who voted in the election in favor of the library bonds. The District Court certified the class as proper under Fed. Rule Gv. Proc. 23 (b) (2). The city of Fort Worth and various city officials, who were defendants below, are listed as appellees in this Court, but they support the appeal and have filed a brief urging reversal, and are not included in subsequent references to appellees.

       The effect of the dual-box procedure was that the nonrenderers could help defeat a bond issue, but they could not help pass it. If their votes, added to the votes of the Tenderers, produced a majority against the bonds, the bonds would not be issued,, even if the Tenderers favored them. But if the Tenderers opposed the bonds, the nonrenderers’ votes would be of no effect, even if they produced an overall majority in favor of the bond issue.

       The Attorney General was joined as a defendant because Texas law requires that he certify the validity of any municipal bond issue. Tex. Rev. Civ. Stat. Arts. 709d (1964 and Supp. 1974-1975), 4398 (1966).

       We answered that question in Salyer Land Co. v. Tulare Water District, 410 U. S. 719 (1973). In that case, we held that a water district created for the purpose of acquiring, storing, and distributing water for agricultural purposes could constitutionally have a board of directors selected in an election in which votes were allocated according to the assessed value of each voter’s land. Because of its “special limited purpose and . . . the disproportionate effect of its activities on landowners as' a group,” id., at 728, the Court held that the water district election was of sufficient “special interest” to a single group that the franchise could constitutionally be denied to others.

       In Louisiana, as in Texas, personal property as well as real property was subject to taxation, and a “property taxpayer” could include a person with only personalty. The administrative practice was to tax only real property, however, so the effect was that in reality “property taxpayer” meant “real property taxpayer.” See Stewart v. Parish School Board, 310 F. Supp. 1172, 1173 n. 3 (ED La.), aff’d, 400 U. S. 884 (1970).

       As a practical matter, under Texas’ scheme of tax assessment and collection, the rendering requirement may in effect create a property-related classification. Appellees’ counsel informed us at oral argument that Fort Worth, like other communities in Texas, makes no affirmative effort to tax property other than realty and business personalty. Tr. of Oral Arg. 26-27. Residents are free to “render” other forms of personalty, but this is apparently seldom done. See Yudof, The Property Tax in Texas Under State and Federal Law, 51 Tex. L. Rev. 885, 889-890 (1973). As a result, in Fort Worth those with realty and business personalty are automatically eligible to vote as “renderers,” while other voters must take the somewhat unusual step of voluntarily “rendering” their property for taxation. When he does so, the taxpayer affirms that he has rendered all his property, and that the valuation of the property is correct. Tex. Rev. Civ. Stat. Arts. 7164, 7184 (1960).

       This argument is similar to the one made by the State of Georgia in defense of its “freeholder” requirement for membership on county boards of education. Turner v. Fouche, 396 U. S. 346, 363-364 (1970). The State there claimed that the freeholder requirement imposed no real burden, since a candidate would qualify if he owned even a single square inch of land. We concluded that if that was the case it was difficult to conceive that the requirement served any rational state interest whatsoever.

       Appellant relies on this Court’s decisions in McDonald v. Board of Election, 394 U. S. 802 (1969), and Rosario v. Rockefeller, 410 U. S. 752 (1973), in defense of the classification created by Texas law in this case. In McDonald, however, the only issue before the Court was whether pretrial detainees in Illinois jails were unconstitutionally denied absentee ballots. The Court expressly noted that there was nothing in the record to indicate that the challenged Illinois statute had any impact on the appellants’ exercise of their right to vote. See 394 U. S., at 807-809. Any classification actually restraining the fundamental right to vote, the Court noted, would be subject to close scrutiny. In Rosario, the Court upheld a neutral requirement that a voter register a party preference 30 days in advance of the general election in order to be eligible to participate in the succeeding primary election. Because the registration requirement served the “legitimate and valid state goal” of “preservation of the integrity of the electoral process,” 410 U. S., at 761, and because it imposed no special burden on any class before the Court, see id., at 759 n. 9, the Court held that the time limitation on registration did not violate either the Equal Protection Clause or the First and Fourteenth Amendment right of association. By contrast, the Texas scheme imposes a restriction on the franchise having no perceptible purpose or effect in preserving the integrity of the electoral process; instead, it excludes a portion of the electorate for failing to comply with a wholly independent state policy.

       The partial stay of the District Court’s judgment was granted only to the extent that the judgment below had prohibited the use of the dual-box election procedure. 416 U. S. 963.

       There may be no such jurisdictions, at least where bond election voting qualifications are governed by statewide statutes and constitutional provisions. We are told that in the 15 States besides Texas that restricted the franchise to taxpayers in some fashion at the time the Phoenix case was decided, all qualified voters are now permitted to participate in bond elections. Brief for City of Phoenix, Ariz., et al. as Amici Curiae 19. In addition to the 13 States referred to in City oj Phoenix v. Kolodziejski, 399 U. S. 204, 213 n. 11 (1970), Nevada and Wyoming utilized a dual-box election procedure much like Texas’, but in both cases that procedure has been abandoned. See Nev. Laws 1971, c. 49; Wyo. Laws 1973, c. 251.


source: Caselaw Access Project

author:
Mr. Chief Justice Burger
      Me. Justice Blackmun, Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Marshall join,

license: Public Domain

text:
    UNITED STATES v. WILSON et al.
    No. 73-1162.
    Argued December 17, 1974
    Decided May 19, 1975

      Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Blackmun, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed a concurring opinion, in which Rehnquist, J., joined, post-, p. 320. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 322.

      Gerald P. Norton argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Petersen, Deputy Solicitor General Frey, and William L. Patton.

      Sheila Ginsberg argued the cause for respondent Wilson. With her on the brief were William E. Hellerstein and Phylis Skloot Bamberger. John S. Martin, Jr., argued the cause and filed a brief for respondent Bryan.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether a district court may impose summary contempt punishment under Fed. Rule Crim. Proc. 42 (a) when a witness who has been granted immunity, refuses on Fifth Amendment grounds to testify. The Court of Appeals held that in such circumstances a judge cannot dispose of the contempt summarily, but must proceed under Rule 42 (b), which calls for disposition only after notice and hearing, and “a reasonable time for the preparation of the defense.”

I

Respondents Wilson and Bryan, along with one Robert Anderson, were charged in separate indictments with separate bank robberies. Respondent Wilson, and Anderson, were charged with armed robbery of a bank in Tuxedo, N. Y. Respondent Bryan, and Anderson, were charged with armed robbery of a bank in Mount Ivy, N. Y. Prior to Anderson’s trial both respondents pleaded guilty to charges against them, but neither was immediately given a final sentence. Sentencing of Wilson was deferred, and, pending a presentence report, Bryan was given a provisional 25-year sentence, as required by 18 U. S. C. §§4208 (b), (c).

At Anderson’s trial for the two robberies, respondents were summoned as witnesses for the prosecution. When questioned, however, each refused to testify, contending that his answers might incriminate him. The judge then granted them immunity, 18 U. S. C. §§ 6002-6003, and, relying on Goldberg v. United States, 472 F. 2d 513 (CA2 1973), ordered them to answer forthwith. He informed them that as long as they did not lie under oath they could not be prosecuted by reason of any testimony, but that if they continued to refuse to answer he would hold them in contempt. Respondents nevertheless persisted in their refusals, and the judge summarily held them in contempt. Counsel for Wilson, who acted for both respondents, argued for lenient sentences; however, trial counsel made no objection to the summary nature of the contempt citation, nor was any claim made that more time was needed to prepare a defense to the contempt citation.

Both respondents were then sentenced to six months’ imprisonment, consecutive to any sentences imposed for the bank robberies. The judge made it clear that he would consider reducing the contempt sentences, or eliminating them completely, if respondents decided to testify. When counsel pointed out that a presentence study was being prepared on Bryan the judge responded: “I am going to impose the maximum . . . with the deliberate intention of revising that sentence to what might be appropriate in light of the very study that is going to be made.” App. 33.

The trial proceeded, but without Bryan’s testimony the evidence against Anderson on the Mount Ivy robbery was such that at the end of the Government’s case the judge granted Anderson’s motion for acquittal. The jury was unable to reach a verdict on the Tuxedo robbery. At a later trial Anderson was convicted of that robbery.

Respondents appealed their contempt convictions. The Court of Appeals rejected the claim that their Fifth Amendment rights would have been violated by compelling them to testify after they had been granted immunity, but it accepted their contention that use of the summary contempt power was improper, and it remanded for proceedings under Rule 42 (b). 488 F. 2d 1231 (CA2 1973). The court reasoned that “[i]f . . . counsel had been given ‘a reasonable time for the preparation of the defense,’ Fed. R. Crim P. Rule 42 (h), she might have marshalled and presented facts in mitigation of the charge.” Id., at 1234.

In requiring Rule 42 (b) disposition the Court of Appeals considered itself bound by its own previous decisions, and by this Court’s decision in Harris v. United States, 382 U. S. 162 (1965). In a previous case the Court of Appeals had held:

“Summary disposition is thus available only when immediate punishment is necessary to put an end to acts disrupting the proceedings, such as threats to the judge, disturbances in the courtroom or insolence before the court. It is not a remedy to be used in a case like this where the contempt consists of no more than orderly refusal in the absence of the jury to answer a question on Fifth Amendment grounds . . . .” United States v. Pace, 371 F. 2d 810, 811 (CA2 1967).

In another case the Court of Appeals had interpreted the language of our Harris decision to require that “[a]bsent . . . disruptive conduct, which affronts the dignity of the court, a hearing pursuant to Rule 42 (b) is required to explore possible exculpatory or mitigating circumstances.” United States v. Marra, 482 F. 2d 1196, 1200 (CA2 1973). In the Court of Appeals’ view only a disorderly or obstreperous interference with court proceedings provides an occasion for use of the summary contempt power. -. Id., at 1201-1202.

Because of the importance of this issue in the conduct of criminal trials, and because the view of the Court of Appeals for the Second Circuit apparently conflicts with that of the Court of Appeals for the First Circuit, Baker v. Eisenstadt, 456 F. 2d 382, cert. denied, 409 U. S. 846 (1972), we granted certiorari. 416 U. S. 981 (1974). We reverse.

II

Respondents’ refusals to answer, although not delivered disrespectfully, plainly fall within the express language of Rüle 42 (a), and constitute contemptuous conduct. Rule 42 (a) was never intended to be limited to situations where a witness uses scurrilous language, or threatens or creates overt physical disorder and thereby disrupts a trial. All that is necessary is that the judge certify that he “saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.” Respondents do not contest that these requirements are met here. Indeed, here each refusal was in the context of a face-to-face encounter between the judge and respondents. See Illinois v. Allen, 397 U. S. 337 (1970); Cooke v. United States, 267 U. S. 517 (1925).

The refusals were contemptuous of judicial authority because they were intentional obstructions of court proceedings that literally disrupted the progress of the trial and hence the orderly administration of justice. Yates v. United States, 227 F. 2d 844 (CA9 1955). Respondents’ contumacious silence, after a valid grant of immunity followed by an explicit, unambiguous order to testify, impeded the due course of Anderson’s trial perhaps more so than violent conduct in the courtroom. Violent disruptions can be cured swiftly by bodily removing the offender from the courtroom, or by physical restraints, Illinois v. Allen, supra; see Ex parte Terry, 128 U. S. 289 (1888), and the trial may proceed. But as this case demonstrates, a contumacious refusal to answer not only frustrates the inquiry but can destroy a prosecution. Here it was a prosecution; the same kind of contumacious conduct could, in another setting, destroy a defendant’s ability to establish a case.

The face-to-face refusal to comply with the court’s order itself constituted an affront to the court, and when that kind of refusal disrupts and frustrates an ongoing proceeding, as it did here, summary contempt must be available to vindicate the authority of the court as well as to provide the recalcitrant witness with some incentive to testify. In re Chiles, 22 Wall. 157, 168 (1875). Whether such incentive is necessary in a particular case is a matter the Rule wisely leaves to the discretion of the trial court.

Our conclusion that summary contempt is available under the circumstances here is supported by the fact that Rule 42 has consistently been recognized to be no more than a restatement of the law existing when the Rule was adopted, Bloom v. Illinois, 391 U. S. 194, 209 (1968); Notes of the Advisory Committee on Rule 42 (a), 18 U. S. C. App. p. 4513; Cooke v. United States, 267 U. S. 517 (1925), and the law at that time allowed summary punishment for refusals to testify, Hale v. Henkel, 201 U. S. 43 (1906); Nelson v. United States, 201 U. S. 92 (1906); Blair v. United States, 250 U. S. 273 (1919). See Ex parte Hudgings, 249 U. S. 378, 382 (1919); Brown v. Walker, 161 U. S. 591 (1896), and cases cited therein, cf. Ex parte Kearney, 7 Wheat. 38 (1822); In re Savin, 131 U. S. 267 (1889).

Ill

The Court of Appeals considered itself bound by language in Harris v. United States, 382 U. S. 162 (1965), to hold Rule 42 (a) inapplicable to the facts here. The crucial difference between the cases, however, is that Harris did not deal with a refusal to testify which obstructed an ongoing trial. In Harris a witness before a grand jury had been granted immunity, 18 U. S. C. § 6002, and nevertheless refused to answer certain questions. The witness was then brought before a District Judge and asked the same questions again. When he still refused to answer, the court summarily held him in contempt. We held in that case that summary contempt was inappropriate because there was no compelling reason for an immediate remedy.

A grand jury ordinarily deals with many inquiries and cases at one time, and it can rather easily suspend action on any one, and turn to another while proceedings under Rule 42 (b) are completed. We noted in Harris that “swiftness was not a prerequisite of justice .... Delay necessary for a hearing would not imperil the grand jury proceedings.” 382 U. S., at 164. Trial courts, on the contrary, cannot be expected to dart from case to case on their calendars any time a witness who has been granted immunity decides not to answer questions. In a trial, the court, the parties, witnesses, and jurors are assembled in the expectation that it will proceed as scheduled. Here the District Judge pointed out this problem when defense counsel asked for a continuance; he said: “I think we cannot delay this trial. I cannot delay it. I have many other matters that are equally important to the people concerned in those cases which are following.” Delay under Rule 42 (b) may be substantial, and all essential participants in the trial may no longer be readily available when a trial reconvenes. In Harris this Court recognized these problems in noting that summary punishment may be necessary where a “refusal [is] ... an open, serious threat to orderly procedure.” 382 U. 8., at 165. A refusal to testify during a trial may be such an open, serious threat, and here it plainly constituted a literal “breakdown” in the prosecution’s case.

IV

In an ongoing trial, with the judge, jurors, counsel, and witnesses all waiting, Rule 42 (a) provides an appropriate remedial tool to discourage witnesses from contumacious refusals to comply with lawful orders essential to prevent a breakdown of the proceedings. Where time is not of the essence, however, the provisions of Rule 42 (b) may be more appropriate to deal with contemptuous conduct. We adhere to the principle that only “ ‘[t]he least possible power adequate to the end proposed’ ” should be used in contempt cases, Anderson v. Dunn, 6 Wheat. 204, 231 (1821). See Taylor v. Hayes, 418 U. S. 488, 498 (1974). As with all power, the authority under Rule 42 (a) to punish summarily can be abused; the courts of appeals, however, can deal with abuses of discretion without restricting the Rule in contradiction of its express terms, and without unduly limiting the power of the trial judge to act swiftly and firmly to prevent contumacious conduct from disrupting the orderly progress of a criminal trial.

Reversed.

Me. Justice Blackmun,

with whom Me. Justice Rehnquist joins, concurring.

In Brown v. United States, 359 U. S. 41 (1959), the petitioner had refused, on Fifth Amendment grounds, to answer questions put to him by a federal grand jury. He thereafter was immunized by the District Judge but, on returning to the grand jury room, persisted in his refusal to answer questions. He again was taken before the District Judge, who repeated the grand jury’s questions and ordered the petitioner to answer. He again refused. The court then, pursuant to Fed. Rule Crim. Proc. 42 (a), adjudged him guilty of criminal contempt. This Court, by a 5-4 vote, sustained the judgment, and expressly approved the use of summary proceedings; it did so on the ground that the refusal to answer before the District Judge was a contempt “committed in the actual presence of the court,” within the meaning of Rule 42 (a). 359 U. S., at 47-52.

Less than seven years later, in Harris v. United States, 382 U. S. 162 (1965), the Court, with two new Justices, was confronted with a factual situation identical in all relevant respects to that in Brown. In Harris, however, the Court, again by a 5-4 vote, concluded that the witness’ refusal to answer the questions before the District Judge was not a contempt “committed in the actual presence of the court.” It reasoned:

“The real contempt, if such there was, was contempt before the grand jury — the refusal to answer to it when directed by the court. Swearing the witness and repeating the questions before the judge was an effort to have the refusal to testify ‘committed in the actual presence of the court’ for the purposes of Rule 42 (a). It served no other purpose, for the witness had been adamant and had made his position known. The appearance before the District Court was not a new and different proceeding, unrelated to the other. It was ancillary to the grand jury hearing and designed as an aid to it.” 382 U. S., at 164-165.

The Court then expressly overruled Brown. Id., at 167.

1 was not on the Court when Brown and Harris were decided. Had I been, I would have joined the Court in Brown and the dissenters in Harris. Although I join the Court’s opinion today, I write separately to express my conviction that Harris, at the most, now stands for nothing more than the proposition that a witness’ refusal to answer grand jury questions is not conduct "in the actual presence of the court,” even when the questions are restated by the district judge and the witness persists in his refusal to answer.

Summary contempt, especially summary criminal contempt, as the Court indicates, ante, at 319, is not a power lightly to be exercised. Nevertheless, summary criminal contempt is a necessary and legitimate part of a court’s arsenal of weapons to prevent obstruction, violent or otherwise, of its proceedings. It is not seriously disputed that a refusal to testify is punishable as a criminal contempt. So long as this Court holds, as it has, that the summary procedure of Rule 42 (a) satisfies the requirements of due process, the Rule should be read to mean precisely what it says.

Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Marshall join,

dissenting.-

The question for decision in this case is one of procedure: is the criminal contempt of nonviolently and respectfully refusing to testify at a criminal trial punishable summarily by the trial judge pursuant to Fed. Rule Crim. Proc. 42 (a), or must the trial judge prosecute the contempt on notice pursuant to Rule 42(b), allowing a reasonable time for the preparation of the defense? A trial judge in the District Court for the Southern District of New York summarily punished respondents under subdivision (a) of Rule 42 for refusing to testify at a trial. The Court of Appeals for the Second Circuit reversed and remanded on the ground that Harris v. United States, 382 U. S. 162 (1965), and the Court of Appeals’ own prior decision in United States v. Marra, 482 F. 2d 1196 (1973), which had relied upon Harris, compelled the conclusion that the proper course was to prosecute on notice under subdivision (b) of the Rule. 488 F. 2d 1231 (1973). I would affirm the judgment of the Court of Appeals.

One Anderson was on trial in the District Court on March 29, 1973, under an indictment for armed robbery of two banks, one in Tuxedo, N. Y., and the other in Mount Ivy, N. Y. Before the trial respondent Wilson pleaded guilty to participation in the Tuxedo bank robbery and respondent Bryan pleaded guilty to participation in the Mount Ivy bank robbery. Neither respondent had been finally sentenced on his plea, however, and each refused to testify against Anderson on self-incrimination grounds, and persisted in that refusal even though the trial judge granted him immunity under 18 U. S. C. §§ 6002-6003. The trial judge thereupon summarily adjudged each in criminal contempt and sentenced each to six months’ imprisonment to be served consecutively to his sentence on the robbery conviction,

The Court today declines the Government’s invitation to overrule Harris v. United States, supra, and in that circumstance Harris clearly compels affirmance of the judgment of the Court of Appeals. Harris interpreted subdivision (a) of Rule 42 as having a narrowly limited scope and expressly excluded its application to a nonviolent, respectful refusal to answer questions on the ground of self-incrimination. The Court emphasized that subdivision (a) reached a narrow category of situations and “was reserved ‘for exceptional circumstances’ . . . such as acts threatening the judge or disrupting a hearing or obstructing court proceedings.” 382 U. S., at 164. Such acts, the Court held, are not present in the case of a nonviolent, respectful refusal to answer questions on the ground of self-incrimination because in such a case “the dignity of the court was not being affronted: no disturbance had to be quelled; no insolent tactics had to be stopped.” Id., at 165.

The Court stated its rationale for the narrow interpretation of subdivision (a) as follows:

“We reach that conclusion in light of ‘the concern long demonstrated by both Congress and this Court over the possible abuse of the contempt power’ . . . and in light of the wording of the Rule. Summary contempt is for ‘misbehavior’... in the ‘actual presence of the court.’ Then speedy punishment may be necessary in order to achieve ‘summary vindication of the court’s dignity and authority.’ ” Id., at 164.

The Court continued:

“Summary procedure, to use the words of Chief Justice Taft, was designed to fill ‘the need for immediate penal vindication of the dignity of the court...We start from the premise long ago stated in Anderson v. Dunn, 6 Wheat. 204, 231, that the limits of the power to punish for contempt are ‘[t]he least possible power adequate to the end proposed.’ In the instant case, the dignity of the court was not being affronted: no disturbance had to be quelled; no insolent tactics had to be stopped. The contempt here committed was far outside the narrow category envisioned by Rule 42 (a).” Id., at 165.

Only last Term, the Court again emphasized that summary punishment for contempt “ ‘always and rightly, is regarded with disfavor’ ” in light of the “heightened potential for abuse posed by the contempt power,” Taylor v. Hayes, 418 U. S. 488, 498, 500 (1974), and is to be resorted to only when necessary for “ ‘immediate penal vindication of the dignity of the court.’ ” Id., at 498 n. 6.

I see no escape from the application of Harris to this case based on the difference that respondents were witnesses at an ongoing trial while the witness in Harris was a grand jury witness, brought before the judge and asked the same questions he had not answered before the grand jury. The Court argues that while the delay necessitated by Rule 42 (b) procedures would be unlikely seriously to disrupt grand jury proceedings it would have substantial disruptive effects in a trial. I doubt that compliance with Rule 42 (b) procedures necessarily would have substantial disruptive effects in a trial but in any event those effects are not the kind of obstruction of court proceedings, Harris, supra, at 164, that justify summary punishment under subdivision (a). For Harris limits application of that subdivision to conduct in the presence of the judge “where immediate corrective steps are needed to restore order and maintain the dignity and authority of the court.” Johnson v. Mississippi, 403 U. S. 212, 214 (1971). In the case of respondents’ nonviolent, respectful refusal to answer questions on the ground of self-incrimination, “the dignity of the court was not being affronted,” Harris, supra, at 165, and the absence of that crucial element in respondents’ refusal to answer questions foreclosed application of subdivision (a) by the trial judge.

       Rule 42 (a) provides:
      “(a) Summary Disposition.
      “A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”

       Rule 42 (b) provides:
      “(b) Disposition Upon Notice and Hearing.
      “A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.”

       In the Court of Appeals respondents contended that the immunity granted was not coextensive with the scope of the Fifth Amendment privilege against self-incrimination. Kastigar v. United States, 406 U. S. 441, 449 (1972). The Court of Appeals ruled that respondents had not raised the claim in a proper fashion, and respondents did not seek review of that conclusion. Thus no issue concerning the scope of immunity is before us.

       Earlier in the proceeding counsel had requested a continuance to study whether respondents could be compelled to testify after a grant of immunity. App. 5. The trial judge did not allow a continuance. Id., at 6. The Court of Appeals, however, considered that for purposes of appeal the request was sufficient objection to the summary contempt citation. The Government does not contest that ruling so we do not address it.

       For example, the court mentioned that respondent Wilson’s experience suggested the possibility of a psychiatric defense. With time to prepare, the Court of Appeals said, counsel might have "enlarged on the issue of [Wilson’s] mental health, and perhaps shown a relationship between any psychological difficulties and the refusal to serve as a witness.” 488 F. 2d, at 1234r-1235. The record does not support such a defense. On order of the District Court, Wilson had been given a psychiatric examination to determine his competency to stand trial. 18 U. S. C. §4244. He was found competent; however, at the Anderson trial his lawyer argued that the examination revealed family difficulties that may have been a reason for his antisocial behavior. App. 12-13. The District Court agreed that further investigation of Wilson’s psychiatric problems might be helpful for sentencing purposes. Id., at 12, 17. The record does not show that either counsel or the District Court considered for a moment that further psychiatric investigation might provide a defense to the contempt charge. The psychiatric investigation was to determine whether Wilson might more appropriately be placed on probation with psychiatric treatment rather than confined in a prison. Id., at 13, 17.

       Rule 42 applies the contempt power defined in 18 U. S. C. § 401. See Bessette v. W. B. Conkey Co., 194 U. S. 324, 326-327 (1904); Ex parte Robinson, 19 Wall. 505, 510 (1874). That statute provides that a federal court has the power to punish by fine or imprisonment, at its discretion, such contempt of its authority as “[m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice.” The predecessor of the statute was enacted to limit the broad power granted by the Judiciary Act of 1789, 1 Stat. 73. Nye v. United States, 313 U. S. 33, 45, 50 (1941). Courts had indiscriminately used the summary contempt power to punish persons for acts that occurred far from the court’s view and which, in truth, could not be considered direct affronts to its dignity, and obstructions of justice. Thus the phrase “in its presence or so near thereto” was intended to apply a geographical limitation on the power. Id., at 50. Misbehavior actually in the face of the court remained punishable summarily, and this Court made it clear that contemptuous actions “actually interrupting the court in the conduct of its business,” id., at 52, were summarily punishable just as “misbehavior in the vicinity of the court disrupting to quiet and order.”. Ibid.

         The trial judge explained to respondents the protection accorded by the grant of immunity and that if they continued in their refusals he would hold them in contempt. He also offered them an opportunity to speak in their own behalf. Groppi v. Leslie, 404 U. S. 496, 501 (1972). Moreover, the judge made it clear that he would consider reducing the sentences if respondents did testify. App. 19-20, 21, 33. In view of this their continued refusals to testify can only be termed intentional.

       In order to constitute an affront to the dignity of the court the judge himself need not be personally insulted. Here the judge indicated he was not personally affronted by respondents’ actions. He said: “I am not angry at Mr. Wilson because he refuses to testify. That is up to him.” App. 14. He also said: “I don’t consider [Bryan] to have a chip on his shoulder towards the Court or towards me.” Id., at 33.

       In Shillitani v. United States, 384 U. S. 364, 371 n. 9 (1966), we said:
      “[T]he trial judge [should] first consider the feasibility of coercing testimony through the imposition of civil contempt. The judge should resort to criminal sanctions only after he determines, for good reason, that the civil remedy would be inappropriate.”
      Here, of course, that admonition carries little weight because at the time they.acted contemptuously both respondents were incarcerated due to their own guilty pleas. Under the circumstances here the threat of immediate confinement for civil contempt would have provided little incentive for them to testify. Contrast, Anglin v. Johnston, 504 F. 2d 1165 (CA7 1974), cert. denied, 420 U. S. 962 (1975). Nevertheless, the careful trial judge made it clear to respondents that if they relented and obeyed his order he would consider reducing their sentences; and he also explained that he would consider other factors in deciding whether to reduce the sentences. Supra, at 312.

       Sources contemporaneous with the adoption of this Rule uniformly indicate that subsection (a) is substantially a restatement of existing law, 6 N. Y. U. School of Law, Institute Proceedings — ' Federal Rules of Criminal Procedure 73 (1946); Dessión, The New Federal Rules of Criminal Procedure: II, 56 Yale L. J. 197, 244 n. 268 (1947); Orfield, Federal Rules of Criminal Procedure, 26 Neb. L. Rev. 570, 613 n. 189 (1947), and was not intended to alter the circumstances in which notice and a hearing are required.

       App. 6.

       The Solicitor General has invited the Court' in this case to overrule Harris. Brief for United States 24. Since the refusal to testify, involved here, occurred during the course of a trial rather than before a grand jury, I agree with the Court’s tacit conclusion to save the question of overruling Harris for another day.

       Although the use of civil contempt, as opposed to the more drastic criminal contempt, is usually to be preferred as a remedy, I am aware of no requirement that the less drastic sanction must be employed in all cases. Indeed, despite the fact that respondents were already incarcerated for substantive criminal offenses, it appears to be clear that service of their sentences could have been interrupted to compel them to serve an intervening sentence for contempt. See, e. g., United States v. Liddy, 166 U. S. App. D. C. 289, 510 F. 2d 669 (1974), cert. denied, 420 U. S. 980 (1975); Anglin v. Johnston, 504 F. 2d 1165 (CA7 1974), cert. denied, 420 U. S. 962 (1975).

       Rule 42 (a) provides:
      “(a) Summary Disposition.
      “A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”
      Rule 42 (b) provides:
      “(b) Disposition Upon Notice and Hearing.
      “A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.”

       The trial judge who presided at Anderson’s trial had deferred sentencing respondent Wilson. Another trial judge, who had been assigned respondent Bryan’s indictment, had imposed a provisional 25-year sentence pending an evaluation under 18 U. S. C. § 4208 (b).
      After Anderson’s trial, Wilson was committed as a young adult offender for an indeterminate term pursuant to 18 U. S. C. § 5010 (b), while Bryan’s sentence was reduced to 10 years.

       When the privilege was invoiced, Wilson’s counsel was present and, in the absence of Bryan’s counsel, attempted with the court’s approval to represent both witnesses.
      Sections 6002-6003 provide:
      “§ 6002. Immunity generally.
      “Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
      “(1) a court or grand jury of the United States,
      “ (2) an agency of the United States, or
      “(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
      “and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or. indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. “§ 6003. Court and grand jury proceedings.
      “ (a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part.
      “(b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, request an order under subsection (a) of this section when in his judgment—
      “(1) the testimony or other information from such individual may be necessary to the public interest; and
      “(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.”

       The contempt sentences were provisional and stayed pending appeal. The Court of Appeals rejected the Government’s contention that- the witnesses had not adequately objected to the use of summary contempt procedures:
      “[U]nder the circumstances, the request by counsel for Wilson for more time to research the fifth amendment issue constituted sufficient objection. And we refuse to penalize appellant Bryan for his failure to make timely objection to the Rule 42 (a) proceeding, since his own counsel was not present. Although counsel for Wilson did her best to protect Bryan, the court having sanctioned her efforts in this regard, only a defendant’s own lawyer could be fully aware of the considerations which might be raised in his behalf to mitigate a charge of contempt or the sentence thereunder, and of the likely usefulness of a hearing for development of these considerations.” 488 F. 2d 1231, 1234 (CA2 1973).
      At the close of the Government’s case, the trial judge granted Anderson’s motion for a judgment of acquittal on the Mount Ivy robbery. The jury was unable to reach a verdict on the Tuxedo robbery. At a second trial, Anderson was convicted of the Tuxedo robbery.

       Respondents’ self-incrimination claim was based upon a concern that their testimony might prejudice their sentencing. The merits of the claim are not before us. The Court of Appeals rejected respondents’ contention that the immunity given was not coextensive with the privilege against self-incrimination on the ground that neither respondent had properly raised the issue of “forbidden use”:
      “If appellant Wilson doubted the ability of Judge Lasker to put out of his mind Wilson’s statements at Anderson’s trial, he should nevertheless have testified as ordered, but requested a different judge for sentencing on the robbery charge. Cf. Goldberg v. United States, 472 F. 2d 513,516 (2d Cir. 1973). Similarly, if Bryan genuinely feared an increased sentence on his guilty plea as a result of testifying in the Anderson case, he, too, should have given evidence, then asked that proper precautions be taken (e. g., sealing the record) to insure that Judge Cooper would not be privy to the statements made under grant of immunity. Both were, however, required to obey the mandate of 18 U. S. C. §6002 that ‘the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination ....’” 488 F. 2d, at 1233.

        Harris overruled the broader reach given subdivision (a) in Brown v. United States, 359 U. S. 41 (1959). This was believed necessary to achieve the objective of its framers that the subdivision be “ ‘substantially a restatement of existing law.’ ” 382 U. S., at 165 n. 3.

         In United States v. Marra, 482 F. 2d 1196 (CA2 1973), the Court of Appeals rejected that argument, stating:
      “In an uncomplicated case of the present type, where the facts are simple and a brief consultation between the witness and his retained •or assigned counsel should be sufficient to enable him to prepare for a Rule 42 (b) hearing, there appears to be no sound reason why the hearing could not be held within a day or two of the witness’ refusal to obey the court’s order. Since the hearing would in all likelihood require no more than an hour or two of the court’s time, trial of the criminal case could be suspended with a minimum disruption to the judicial process. Such a procedure, furthermore, lessens the risk that the witness’ contumacy is the result of fright, confusion, or misunderstanding. Indeed, with the advice of counsel, or faced with imposition of a criminal sentence, he may decide to cooperate.” Id., at 1202.
      See also United States v. Pace, 371 F. 2d 810 (CA2 1967).
      The Court of Appeals said of the situation in the instant case:
      “If . . . counsel had been given ‘a reasonable time for the preparation of the defense,’ Fed. R. Crim. P. 42 (b), she might have marshalled and presented facts in mitigation of the charge. Significantly, the record reveals the possibility of a psychiatric defense, at least for Wilson [cf. Pánico v. United States, 375 U. S. 29 (1963)]. . . .
      “Finally, because of the posture of the case, the record is silent on other facts which may well exist in defense or mitigation of the charge against both appellants, and which could be properly developed at a plenary hearing.” 488 F. 2d, at 1234-1235.
      The trial judge has broad discretion to specify the time for preparation of a defense to a charge of criminal contempt. See Nilva v. United States, 352 U. S. 385, 395 (1957).

       “[Rule 42 (b)] is controlling in any case of contempt occurring outside the actual presence of the court, but it applies too to most cases of contempt in the court’s presence.” 3 C. Wright, Federal Practice and Procedure 171-172 (1969).

       It is undisputed that respondents asserted their Fifth Amendment rights nonviolently and respectfully. Indeed, the trial judge commented after respondent Bryan asserted the privilege: “I don’t consider him to have a chip on his shoulder towards the Court or towards me.” App. 32.


author: Me. Justice Brennan

text:
    PHELPS, RECEIVER IN BANKRUPTCY v. UNITED STATES
    No. 74-121.
    Argued April 16, 1975
    Decided May 19, 1975
    BreNnan, J., delivered the opinion for a unanimous Court.

      Dennis E. Quaid argued the cause for petitioner. With him on the briefs were Kevin J. Gillogly and Daniel C. Ahern.

      Keith A. Jones argued the cause for the United States. With him on the brief were Solicitor General Bork, As

      sistant Attorney General Crampton, and Crombie J. D. Garrett.

   Me. Justice Brennan

delivered the opinion of the Court.

Between March and June 1971 the Internal Revenue Service (IRS) made assessments of federal taxes in the amount of $140,831.59 against Chicagoland Ideel Cleaners, Inc. Chicagoland failed to pay the taxes after formal demand. Instead, on June 28, 1971, Chicago-land transferred its assets to an assignee for the benefit of creditors. The assignee promptly converted the assets into cash of approximately $38,000. On August 25, 1971, the IRS filed a notice of tax lien respecting the March-June assessments in the office of the Recorder of Deeds of Cook County, Ill., and on the same day served a notice of levy on the assignee. The notice of levy stated that the proceeds in the assignee’s hands “are hereby levied upon and seized for satisfaction” of the taxes, “and demand is hereby made upon you for the [proceeds].” On September 14, 1971, an involuntary petition in bankruptcy was filed against Chicagoland. Chicagoland was adjudicated bankrupt and petitioner Phelps was appointed receiver in bankruptcy.

Petitioner receiver, on October 19, 1971, filed an application with the Referee in Bankruptcy for an order requiring the assignee, who had not complied with the IRS demand for payment, to turn over to petitioner the $38,000 proceeds from the sale of Chicagoland’s assets. The IRS opposed the application on the ground that “[t]his court of bankruptcy lacks jurisdiction over the subject matter of the application because the United States is entitled to the possession of the moneys now held by [the] assignee of the bankrupt. . . .” The Referee in Bankruptcy rejected the contention, holding that “the assignment . . . passed inalienable title to the assets of Chicagoland ... to the assignee” and therefore “the notice of levy of the Internal Revenue Service is a nullity . . . .” The Referee accordingly entered an order directing the assignee to “surrender and turn over to” petitioner “all sums in his possession . ...” The District Court for the Northern District of Illinois, on petition for review on behalf of the IRS, approved the Referee’s turnover order. The Court of Appeals for the Seventh Circuit reversed. 495 F. 2d 1283 (1974). The Court of Appeals held: “Since possession of the property resided in the United States as against the [petitioner] receiver, the bankruptcy court lacked jurisdiction summarily to adjudicate the controversy without the Government’s consent. . . . The United States is now entitled to have its claim adjudicated in a plenary suit. We respectfully decline to follow the contrary holding [of the Court of Appeals for the Ninth Circuit] in In re United General Wood Products Corp., 483 F. 2d 975 (9th Cir. 1973).” 495 F. 2d, at 1285-1286. We granted certiorari to resolve the conflict between the Courts of Appeals, 419 U. S. 1068 (1974). We agree with the holding of the Court of Appeals for the Seventh Circuit and affirm its judgment.

I

The assignee claims no interest in the proceeds of the $38,000. The Court of Appeals for the Ninth Circuit, in In re United General Wood Products Corp., 483 F. 2d 975, 976 (1973), held that that circumstance, without more, subjected property to the bankruptcy court’s summary jurisdiction to enter a turnover order. Wood Products Corp. relied on the statement in Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426, 432-433 (1924), that constructive possession of the property by the bankruptcy court “exists . . . where the property is held by some other person who makes no claim to it.” That reliance is misplaced. The statement read in the context of the facts of that case and its holding applied only to property in the hands of a nonadverse third person who was not holding it as agent for a bona fide adverse claimant. Taubel itself held that the bankruptcy court had not been given jurisdiction by summary proceedings to avoid a lien created by levy under a judgment of a state court where the sheriff possessed the property for the judgment creditor, and neither he nor the judgment creditor had consented to adjudication of the controversy by the bankruptcy court. Similarly, in this case the United States is a bona fide adverse claimant to the $38,000 proceeds held by the assignee and has not consented to adjudication of its claim by the bankruptcy court.

The levy of August 25, 1971, created a custodial relationship between the assignee and the United States and thereby reduced the $38,000 to the United States’ constructive possession. Neither Chicagoland nor the petioner as receiver could assert a claim to the proceeds in that circumstance. For when Chicagoland failed to pay the taxes after assessment and demand, a lien in favor of the United States attached to “all property and rights to property, whether real or personal, belonging to [the taxpayer].” 26 U. S. C. § 6321. The assignee took Chicagoland’s property subject to this lien. The lien attached to the proceeds of the sale. See Sheppard v. Taylor, 5 Pet. 675, 710 (1831); Loeber v. Leininger, 175 Ill. 484, 51 N. E. 703 (1898). “The lien reattaches to the thing and to whatever is substituted for it. . . . The owner and the lien holder, whose claims have been wrongfully displaced, may follow the proceeds wherever they can distinctly trace them.” Sheppard v. Taylor, supra, at 710.

The notice of levy and demand served on the assignee were an authorized means of collecting the taxes from the $38,000 held by him. Title 26 U. S. C. § 6331 (a) provides: “[I]f any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary ... to collect such tax ... by levy upon all property ... on which there is a [tax] lien . . “[t]he term ‘levy’ . . . includes the power of distraint and seizure by any means.” § 6331 (b). Treasury Regulations, 26 CFR § 301.6331-1 (a) (1) (1974), provide that a “[ljevy may be made by serving a notice of levy,” and that levy gave the United States thé right to the proceeds. See United States v. Pittman, 449 F. 2d 623, 627 (CA7 1971). Title 26 U. S. C. § 6332 (a) requires that any person holding property levied upon must surrender it to the Government, or become liable for the tax, § 6332 (c). With surrender, however, any duty owed the taxpayer is extinguished. § 6332 (d).

Thus, following the levy of August 26, 1971, actual possession of the $38,000 was held by the assignee on behalf of the United States and “where possession is assertedly held not for the bankrupt, but for others prior to bankruptcy . . . the holder is not subject to summary jurisdiction.” 2 J. Moore & R. Oglebay, Collier on Bankruptcy ¶ 23.06 [3], pp. 506.2-506.3 (14th ed. 1975); Cline v. Kaplan, 323 U. S. 97 (1944); Galbraith v. Vallely, 256 U. S. 46 (1921). The receiver’s recourse is limited to a plenary suit under § 23 of the Bankruptcy Act, 11 U. S. C. § 46. See Taubel-Scott-Kitzmiller Co. v. Fox, supra.

Petitioner argues, however, that actual possession is necessary to remove the Government’s tax liens from the subordinate priority accorded them under § 67c (3) of the Bankruptcy Act. The argument is without merit. United States v. Eiland, 223 F. 2d 118 (CA4 1955); Rosenblum v. United States, 300 F. 2d 843 (CA1 1962). Section 67c (3) has no bearing on the question of summary jurisdiction; it relates only to the priority that is accorded tax liens on property that has already been determined to be within the bankruptcy court’s jurisdiction as part of the bankrupt estate. Here we are concerned not with priority of tax liens but with the effect of a tax levy. Historically, service of notice has been sufficient to seize a debt, Miller v. United States, 11 Wall. 268> 297 (1871), and notice of levy and demand are equivalent to seizure. See, e. g., Sims v. United States, 359 U. S. 108 (1959). The levy, therefore, gave the United States full legal right to the $38,000 levied upon as against the claim of the petitioner receiver.

Petitioner’s final contention is that the general restriction on a bankruptcy court’s summary jurisdiction was altered by the enactment in 1938 of § 2a (21) of the Bankruptcy Act, 11 U. S. C. § 11 (a) (21), which grants bankruptcy courts jurisdiction to “[r]equire ... assignees for the benefit of creditors ... to deliver the property in their possession or under their control to the receiver . . . .” This provision, however, was designed to “clarif[y] the jurisdiction of the [bankruptcy] court,” S. Rep. No. 1916, 75th Cong., 3d Sess., 12 (1938), and was “simply declaratory of prior case law,” 1 Collier on Bankruptcy, supra, ¶ 2.78 [3], p. 390.26. Under that case law, an assignee for the benefit of creditors who holds assets as “a mere naked bailee for the creditors ... has no right to retain the possession as against the trustee in bankruptcy.” In re McCrum, 214 F. 207, 209 (CA2 1914). Here the assignee held as custodian for the United States, a bona fide adverse claimant. Galbraith v. Vallely, supra,

Affirmed.

       The grant was limited to the following questions presented in the petition:
      “1. ‘Whether the Court of Appeals incorrectly granted to the United States a priority based upon the Internal Revenue Code of 1954 for taxes in violation of and contrary to the priorities for payment of claims established by the Bankruptcy Act?’
      “2. ‘Whether the Court of Appeals incorrectly held that service of a Notice of Levy upon an assignee for the benefit of creditors subsequent to the assignment reduced the bankrupt’s property then held by the assignee to the constructive possession of the United States?’
      “3. ‘Whether the Court of Appeals incorrectly determined that the Bankruptcy Court lacked summary jurisdiction to adjudicate the controversy before it without the consent of the United States?”’

       There is a significant difference in the result of a summary adjudication of the tax claim in the bankruptcy court and the result of. its adjudication in a plenary suit:
      “The difference between a summary and plenary proceeding in this context is not merely a matter of the relative formality of the respective procedures. The consequence of a summary turnover order is to subject the property in question to administration as part of the bankrupt estate. Where the government has a tax lien on the property, the consequence of the turnover is to subordinate that lien to the expenses of administration and priority wage claims. See Section 67c (3) of the Bankruptcy Act, 11 U. S. C. [§] 107 (c) (3). In contrast, if the property is not subject to summary turnover, it may be brought into the bankrupt estate only if the receiver is able to defeat the government’s underlying tax claim in a plenary proceeding, i. e., a suit for refund. Thus, in a case where the .underlying tax claim is sound, for the government the difference between a summary and a plenary proceeding is the difference between holding the property subject to prior payment of administrative and priority wage claims and holding it outright.” Brief for United States 19.

       The unified tax lien was valid against all persons except purchasers, holders of security interests, mechanic’s lienors, and judgment lien creditors. 26 U. S. C. § 6323 (a). Petitioner concedes that the assignee did not fall within any of these categories.

       The Government does not contend that the unfiled lien followed the property into the hands of good-faith purchasers from the assignee. Brief ' for United States 14 n. 6. As indicated in n. 3, supra, an unfiled tax lien is invalid against purchasers.

        United States v. Bess, 357 U. S. 51 (1958), is not to the contrary. Bess held that a tax lien effected during an insured’s life against the cash surrender value of a life insurance policy attached after his death to insurance proceeds in the hands of the beneficiary but only in the amount of the cash surrender value. The limitation recognized that the taxpayer in his lifetime could not have realized a larger amount and thus there was no greater “property” or “rights to property” to which the lien could have attached ab initio. Id., at 55-56.

       The claimant may, however, consent to summary adjudication in the bankruptcy court. Cline v. Kaplan, 323 U. S. 97, 99 (1944). The United States refused consent in this case.

       Section 67c (3) of the Bankruptcy Act, 11 U. S. C. § 107 (c) (3), provides in pertinent part:
      “Every tax lien on personal property not accompanied by possession shall be postponed in payment to the debts specified in clauses (1) and (2) of subdivision (a) of section 104 of this title ....”
      Section 64,of the Bankruptcy Act, 11 U. S. C. § 104, provides in pertinent part:
      “(a) The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be (1) the costs and expenses of administration ... , (2) wages and commissions, not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding, due to workmen, servants, clerks, or traveling, or city salesmen . . . .”

       Petitioner also relies on § 70a (8) of the Bankruptcy Act, 11 U. S. C. §110 (a)(8). Section 70a (8) vests the trustee of the bankrupt’s estate “with the title of the bankrupt as of the date of the filing of the petition ... to ... property held by an assignee for the benefit of creditors.” Even petitioner argues, however, that Chicago-land on September 1, 1971, had no title to the property conveyed to the assignee. Brief for Petitioner 14. In any event, the prebankruptcy levy displaced any title of Chicagoland, and § 70a (8) is therefore inapplicable.