text:
    No. 74-1445.
    No. 74-6411.
    Bynum et. al. v. United States; and Birnbaum v. United States.
   C. A. 2d Cir. Certiorari denied. Reported below: 513 F. 2d 533.

Mr. Justice Brennan,

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

dissenting.

The “minimization” provision of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provides that every order and extension thereof authorizing electronic surveillance shall “contain a provision that the authorization to intercept shall be . . . conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . . .” 18 U. S. C. § 2518 (5). This “minimization” provision, together with other safeguards, e. g., §§ 2518 (3) (a), (b), (c), and (d), constitutes the congres-sionally designed bulwark against conduct of authorized electronic surveillance in a manner that violates the constitutional guidelines announced in Berger v. New York, 388 U. S. 41 (1967), and Katz v. United States, 389 U. S. 347 (1967). Congress has explicitly informed us that the “minimization” and companion safeguards were designed to assure that “the order will link up specific person, specific offense, and specific place. Together [the provisions of Title III] are intended to meet the test of the Constitution that electronic surveillance techniques be used only under the most precise and discriminate circumstances, which fully comply with the requirement of particularity.” S. Rep. No. 1097, 90th Cong., 2d Sess., 102 (1968). These cases afford the Court a particularly appropriate vehicle for fashioning principles to guide authorizing judges in administering the “minimization” provision — guidance which is absolutely essential if the congressional mandate to confine execution of authorized surveillances within constitutional and statutory bounds is to be carried out.

The urgent need for guidance from this Court clearly emerges from the record in these cases. For the record fairly bristles with apparent instances of indiscriminate and unwarranted invasions of privacy of nontargets of the surveillance.

Two telephones at the home of a friend of petitioner Bynum were the subjects of surveillance orders. The orders authorized federal narcotics agents to overhear and electronically record incoming and outgoing conversations of “Bynum and others as yet unknown.” The order as extended for one telephone was for a period of 34 days, and the order for the second telephone covered the last 20 days of that period. The judge who authorized the surveillance left administration of the “minimization” provision to the monitoring agents, being of the view that the facts of the massive narcotics conspiracy under investigation precluded per se surveillance guidelines promulgated by him and that minimization would be better achieved by allowing the agents discretion in determining what should be intercepted. But the monitoring agents were not informed by the judge or their superiors of this decision. Rather, Mr. Updike, the Assistant United 'States Attorney who supervised the surveillance, testified that the agents were instructed to intercept all but privileged attorney-client communications:

“And with respect to the actual operation of the intercept, my instructions were that they were to record everything except what any inspector-felt was a privileged communication, and as to those they were to report to me when anything of that nature occurred or felt something of that nature occurred.
“But the instructions were that they were to record and to monitor at the start all communications that came over the telephone.’’

Moreover, the monitoring agents testified that they were unaware of, and had not been informed of, the statutory “minimization” provision. And although Mr. Updike testified that the monitoring agents did have discretion with regard to whether they should monitor a particular conversation (although not with regard to whether they should record it), he conceded that the agents were never informed that they had such discretion; when questioned whether he was “counting on the agents being bored and taking off their earphones as a vehicle by which the minimization objective of the statute would at least in part be accomplished,” Mr. Updike responded: “I think that is a fair characterization.”

In consequence of this failure in even the slightest respect to comply with the minimization safeguards, every conversation and attempted communication (whether incoming or outgoing) over the target telephones during the period was recorded, and approximately 90% of the completed communications were also contemporaneously monitored by the agents. The Government intercepted 1,974 completed communications, excluding calls to such services as information and the weather, which covered 102 hours of conversation time. Necessarily, calls of short duration will generally have to be monitored in toto; agents must inevitably listen briefly to all calls in order to determine the parties to and the nature of the conversation. But 501 conversations lasted at least three minutes, and 71 of these longer calls were made by Bynum’s child’s teenage babysitter Donna, who was totally innocent of any knowledge of her employer’s criminal enterprise; her conversations were therefore “communications not . . . subject to interception . . . .” The other party in each of these conversations, which accounted for 14% hours of the intercepted conversations, was not a member of the narcotics conspiracy, and the conversations, which were sometimes the subject of jokes by the monitoring agents, were often of a highly personal and intimate nature. Although Mr. Updike was apprised of the nature of these calls during the course of the surveillance, he nevertheless ordered that Donna’s calls be intercepted because they could be “useful” for such matters as determining where actual members of the conspiracy were and thus assist the visual surveillance aspect of the investigation. Of course, since Donna’s conversations would not themselves have satisfied the particularity standard of Title III and would not, therefore, have independently been the proper subject of electronic surveillance, they clearly fall within the category whose interception Congress intended to be minimized under § 2518 (5).

Similarly, there were 47 calls of at least 10 minutes duration between petitioner Garnett, who resided at the address of the target telephones and in whose name they were listed, and personal friends who were not members of the conspiracy. Although Garnett was a “known” member of the conspiracy, whose calls might be subject to a lengthier initial surveillance period before their innocent nature was established, these personal calls of considerable length accounted for 19 hours of intercepted communications.

Also intercepted were a substantial number of calls involving attorneys, thus implicating both the attorney-client privilege and Sixth Amendment considerations. The judge had been informed that the surveillance might eventuate in the interception of such communications, particularly since some attorneys were suspected of involvement in the conspiracy. However, the judge explicitly directed that privileged communications should not be monitored, and he assumed that the interception of such calls would be reported to him. Nevertheless, the judge was told, contrary to the fact, in each interim report on the conduct of the surveillance that no privileged communications had been intercepted; indeed, although 67 telephone conversations involving attorneys were intercepted, 42 of which at least arguably fell within the attorney-client privilege and most of which were recognizable as involving attorneys, the judge was never called upon to decide whether any particular conversation was privileged. Moreover, although Mr. Updike had informed the monitoring agents generally that “privileged communications” of attorneys were not to be intercepted, he never instructed the monitoring agents, who were not themselves attorneys, what type of attorney-client communications would fall within the scope of the privilege.

Also significant, particularly in light of the companion statutory directive that surveillance must terminate as soon as its directives are accomplished, see §2518(5), is the fact that Mr. Updike and the monitoring agents were not informed of other developments in the. investigation, such as the results of visual surveillance conducted on the suspects or the information supplied by informants. Mr. Updike did not receive the wiretap log entries of the monitoring agents on a daily basis, and he did not scrutinize the logs to evaluate the actual eviden-tiary value of the information derived from the surveillance. Moreover, although written reports were periodically submitted to the judge during the surveillance period, and although the wiretap log entries were attached to these reports, the reports themselves were con-clusory statistical summaries concerning the intercepted communications, and actually revealed that a substantial percentage of the overheard conversations were not narcotics related.

Eight conversations derived from this surveillance were introduced at petitioners’ trial over timely objection, and numerous other conversations may have resulted in the acquisition of other evidence. The “minimization” issue thus has a substantial impact on the rights of these litigants. But it has a significantly broader impact. These cases thus present important questions, and in light of the extensive record upon which to predicate review, afford a particularly appropriate opportunity to delineate standards and procedures to guide law enforcement officials and supervising judges in implementing the minimization strictures of §2518(5). More specifically, the cases would permit us to address the following important issues:

(1) Is the mechanical recording of a conversation not actually overheard, an “interception” within 18 U. S. C. § 2510 (4) ? The District Court held that conversations recorded but not overheard were not “intercepted.” This holding substantially influenced the court’s determination that the “minimization” provision had not been violated. The Court of Appeals declined to address the question, holding that the difference between what was only recorded and what was recorded and overheard was both de minimis and not measurable on the record.

(2) Was this round-the-clock surveillance conducted in a manner consistent with § 2518 (5), construing that section, as we must, in light of the proscription of general warrants by the Fourth Amendment? The answer to that question necessarily requires that we first specify what standards and procedures govern the determination whether minimization mandated by the section was effected.

(3) What constitutes adequate judicial oversight of the surveillance to effect minimization? Must the judge keep records of all contacts between the judge and the monitoring agents? Must patterns of innocent or privileged calls be brought to the judge’s attention so that he can make an informed contemporaneous determination of the relative evidentiary value of the surveillance compared with the invasion of privacy which it entails? Must the names of suspected co-conspirators be brought to the judge’s attention so he can order varying initial surveillance periods in which the agents should determine whether a call is licit or illicit, with only spot monitoring thereafter to ensure that the parties to or the nature of the call have not changed? Must any surveillance directives of the supervising judge be conveyed to the actual monitoring agents, and can a post hoc analysis that intercepted conversations were illicit excuse a failure to make an actual minimization effort? Must the judge be informed not only of the conduct of the surveillance, but of the conduct of other aspects of the investigation of which it is but a part, so that the surveillance may be terminated as soon as its objectives are achieved or the wiretap becomes otherwise superfluous to the investigation?

(4) If the surveillance in these cases did not comply with the “minimization” requirement, what is the appropriate remedy? In particular, should suppression be limited to conversations which should not themselves have been intercepted, or should all conversations derived from a surveillance not conducted so as to minimize improper interception be suppressed?

These questions, in the context of a conspiracy investigation conducted through electronic surveillance, are substantial federal issues that merit our plenary review. Such problems are likely to be recurring, and we plainly fail in our judicial responsibility when we do not review these cases to give content to the congressional mandate of “minimization.”

I would therefore grant the petitions limited to the questions presented respecting the “minimization” provision, § 2518 (5), and set the cases for oral argument.


source: Caselaw Access Project

author: Mr. Justice Brennan,

license: Public Domain

text:
    No. 75-236.
    Kutler v. United States.
   C. A. 3d Cir. Certiorari denied. Mr. Justice Douglas, being of the view, stated in previous opinions by himself and by Mr. Justice Black, that any federal ban on, or regulation of, obscenity abridges freedom of speech and of the press contrary to the First Amendment, would grant cer-tiorari and summarily reverse the judgment.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted in the United States District Court for the Western District of Pennsylvania of shipping obscene films by common carrier in interstate commerce in violation of 18 U. S. C. § 1462, and of conspiracy to violate § 1462 and to transport the films in interstate commerce for the purpose of sale or distribution in violation of 18 U. S. C. § 1465. Section 1462 provides in pertinent part:

“Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce —
“(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; . . .
“Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for'the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.”

The Court of Appeals for the Third Circuit affirmed the convictions. 517 F. 2d 1400.

I adhere to my dissent in United States v. Orito, 413 U. S. 139, 147 (1973), in which, speaking of 18 U. S. C. § 1462, I expressed the view that “[wjhatever the extent of the Federal Government’s power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsent-ing adults, the statute before us is clearly overbroad and unconstitutional on its face.” 413 U. S., at 147-148. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant cer-tiorari, and, since the judgment of the Court of Appeals for the Third Circuit was rendered after Orito, reverse. In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).

         United States v. 12 200-Ft. Reels of Film, 413 U. S. 123, 130-138 (1973) (dissenting); Ginzburg v. United States, 383 U. S. 463, 491-492 (1966) (dissenting); Roth v. United States, 354 U. S. 476, 508-514 (1957) (dissenting).

        Ginzburg v. United States, supra, at 476 (dissenting).

       Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits.


text:
    No. 75-428.
    McKinney v. Parsons.
   -C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas, being of the view, stated in previous opinions by himself and by Mr. Justice Black, that any state ban on, or regulation of, obscenity abridges freedom of speech and of the press contrary to the First and Fourteenth Amendments, would grant certiorari and summarily reverse the judgment.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted in the Circuit Court of Jefferson County, Ala., of violating the obscenity ordinance of the city of Birmingham. Birmingham Ordinance No. 67-2, § 3, provides in pertinent part:

“It shall be unlawful for any person to knowingly . . . exhibit, distribute or have in his possession with intent to distribute, exhibit, sell or offer for sale ... any obscene matter.”

As used in Ordinance No. 67-2, “obscene” meant at the time of the alleged offenses:

“that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters.” § 1.

On direct appeal, the Alabama Court of Criminal Appeals dismissed when petitioner’s appellate brief was untimely filed. Petitions for writs of certiorari were filed with the Supreme Court of Alabama and denied. A petition for a writ of certiorari was filed with this Court and denied for the reason that the judgment below rested upon an adequate state ground. McKinney v. Birmingham, 409 U. S. 895 (1972). Thereafter, a petition for habeas corpus relief was filed in the United States District Court for the Northern District of Alabama. Habeas relief was ultimately denied, and on appeal the Fifth Circuit affirmed. 513 F. 2d 264.

It is my view that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, Ordinance No. 67-2 as it existed at the time of the alleged offenses was constitutionally over-broad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, vacate the judgment, and remand the case for further proceedings not inconsistent with my dissent in Paris Adult Theatre I, supra. See Wasserman v. Municipal Court of Alhambra Judicial District, 413 U. S. 911 (1973) (Brennan, J., dissenting). In that circumstance, I have no occasion to consider whether the other questions presented in this case merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).

        Miller v. California, 413 U. S. 15, 42-47 (1973) (dissenting); Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70-73 (1973) (dissenting); Memoirs v. Massachusetts, 383 U. S. 413, 426-433 (1966) (concurring in judgment).

        Mishkin v.New York, 383 U. S. 502, 515-518 (1966) (dissenting).

       Although four of us would grant certiorari and vacate the judgment, the Justices who join this opinion do not insist that the ease be decided on the merits.


text:
    November 17, 1975
    No. 75-168.
    Whitehead et al. v. Westbrook.
   Affirmed on appeal from D. C. W. D. Ark.


author: Me. Justice Rehnquist,

text:
    No. 74-1418.
    Buchanan et al. v. Evans et al.
   Affirmed on appeal from D. C. Del.

Me. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice Pow'ell join as to Parts I and II-B,

dissenting.

Appellants insist that the judgment of the District Court is wrong under our holding in Milliken v. Bradley, 418 U. S. 717 (1974), while appellees insist that it is consistent with that case. But this case comes here as an appeal from an order of a three-judge District Court enjoining the enforcement of a state statute, 393 F. Supp. 428 (Del. 1975), a question not even present in Milliken. The three-judge District Court by its order of April 16, 1975, enjoined appellants from relying upon provisions of a Delaware statute which by their terms had expired six years earlier. Because in doing so I believe the District Court decided an issue that is demonstrably moot, I would reverse its judgment on this point. Since the additional question of whether the Milliken issues briefed by the parties are properly before us under any conceivable theory is one which veritably bristles with jurisdictional problems, I would note probable jurisdiction and set the case for argument on these points. The Court’s summary affirmance, in my opinion, not only wrongfully upholds an erroneous injunction issued by the District Court, but because of the difficult jurisdictional questions present in this case leaves totally beclouded and uncertain what is decided by that summary affirmance.

I

The challenged Delaware statute, known as the Educational Advancement Act (EAA), was enacted by the legislature in June 1968 “to provide the framework for an effective and orderly reorganization of the existing school districts of this State through the retention of certain existing school districts and the combination of other existing school districts.” Del. Code Ann., Tit. 14, § 1001 (1975).

Appellant Delaware State Board of Education and its members were placed under an explicit timetable by this statute. By September 1,1968, they were to develop specific criteria for implementing a reorganization plan in accordance with requirements contained in the statute; by October 24, 1968, they were required to develop a plan conforming to these criteria; and in subsequent months they were to submit the plan to local boards of education, and to receive and pass on their objections to the proposed plan. Del. Code Ann., Tit. 14, §§ 1003, 1004 (a) and (b) (1975). Section 1005 provided that on July 1, 1969, “all proposed school districts contained in the plan as adopted [under § 1004] shall be constituted and established as reorganized school districts.”

Section 1004 (c) contained an exclusion which was the basis of appellees’ constitutional attack on the statute. It provided that, in contrast to the wide discretion conferred upon the state board with respect to other school districts in the State, the city of Wilmington should constitute a single school district. The- District Court sustained appellees’ claim that this provision invidiously discriminated against Negroes, finding that although there had been no intent to do so on the part of the legislature, the effect of the statute was to lock in Negro schoolchildren within the Wilmington school district in a way that might not have resulted if that district had been subject to the state board’s discretionary power to consolidate as were the remaining districts in the State under the 1968 legislation. The District Court summarized this portion of the EAA in the following language:

“The key reorganization provisions of the Act provided an exemption of approximately one year from the long-standing requirement in Delaware law that consolidation of contiguous school districts must be approved by a referendum in each of the districts affected. 14 Del. C. §§ 1001-05. In other words, for a limited time, the State Board of Education was authorized to consolidate school districts according to the dictates of sound educational administration and certain statutory criteria. The Wilmington School District was explicitly excluded from the reorganization powers of the State Board by § 1004 (c) (4): 'The proposed school district for the City of Wilmington shall be the City of Wilmington with the territory within its limits.’ Wilmington was also excluded implicitly from any consolidation plan by § 1004 (c)(2), which limited the maximum pupil enrollment in any proposed school district to 12,000.” 393 F. Supp., at 438-439 (emphasis added).

The difficulty with the District Court’s holding, quite apart from its constitutional merits, is that the statute authorized action by appellant state school board only until July 1, 1969. As the District Court explicitly found, the reorganization powers from which Wilmington was excluded lapsed on that date. After that date, neither the city of Wilmington nor Negro schoolchildren attending schools in the city could suffer any discrimination as a result of the state board’s enforcement of the statute: the state school board no longer had unilateral power to effect consolidation. That step can be accomplished only by approval of the voters in the affected school districts by referendum. Under Del. Code Ann., Tit. 14, § 1027 (1975), while a voter-approved consolidation plan can apparently be rejected by the state board in its discretion, a voter-rejected consolidation plan cannot be resurrected by the state board.

Thus by July 1, 1969, the state board had been relegated, Cinderella-like, to the status which it occupied prior to the 1968 legislation. The provision of § 1004 (c), limiting the authority of the state board with respect to the school district consisting of the city of Wilmington, was relevant, if at all, at the time this case was heard by the three-judge court, only as a historical fact. Whatever may be the proper weight to be accorded this historical fact in the assessment by a single-judge district court of the factors made relevant in Milliken, it was functus officio as a part of an operative statute.

A three-judge district court cannot enjoin the operation of a statute which has expired by the time the court’s decree is entered. Indeed, so strongly has this Court felt about the necessity for a “live controversy” that it has vacated the judgment of the District Court where the statute was repealed after the ruling of that court but before decision here. Diffenderfer v. Central Baptist Church, 404 U. S. 412 (1972). A fortiori, a prayer for restraint against a state officer’s enforcement of a statute which expired prior to litigation presents a dead issue. The grant of judicial power in Art. Ill of the United States Constitution limits federal courts to cases or controversies, and a dispute about the constitutionality of a statute which is no longer in effect is moot in the classical sense.

II

Presumably the Court’s summary and unexplained affirmance of the judgment of the District Court upholds its issuance of an injunction against the enforcement of sections of a law which by their own terms have expired. By reason of the summary nature of the Court’s action, however, neither the parties nor the District Court can know what additional effect the affirmance here may have. Although the parties have briefed the Milliken issues, I believe that there are all but insurmountable jurisdictional difficulties to the Court’s reaching them, whether it were to affirm or to reverse the in-junctive portion of the District Court’s judgment. I would at the very least note probable jurisdiction and hear argument on them in order to make a principled determination as to whether we have authority on this appeal to deal with those issues at all.

A

On the assumption that the District Court was correct in issuing the injunction against the enforcement of the Delaware statute, an assumption with which I disagree for reasons previously stated, there is the most serious question as to whether the Court could reach the Milli-ken issues even if it wished to do so. This case is here on direct appeal only because 28 U. S. C. § 1253 authorizes such appeal “from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.”

This language stands in sharp contrast to the language of 28 U. S. C. § 1252, dealing with direct appeals from district court judgments invalidating Acts of Congress, the relevant language of which is:

“Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit or proceeding ....”

Construing this language in United States v. Raines, 362 U. S. 17 (1960), the Court stated that it seemed “to indicate a desire of Congress that the whole case come up_” Id., at 27 n. 7.

By contrast, the much narrower language of § 1253 allows appeal here not from a final judgment or decree but only from “an order granting or denying ... an interlocutory or permanent injunction . . . .” It is established by the consistent holdings of this Court that this section, together with 28 U. S. C. § 2281, is to be narrowly, rather than broadly, construed. Gonzalez v. Employees Credit Union, 419 U. S. 90, 98 (1974); Phillips v. United States, 312 U. S. 246, 248 (1941).

The Court’s opinion in Florida Lime Growers v. Jacobsen, 362 U. S. 73, 76 (1960), is highly instructive on this point. There the issue was whether, in an appeal pursuant to § 1253, this Court and the District Court had jurisdiction to entertain nonconstitutional attacks on the challenged statute as well as constitutional attacks. The Court held that they did. Mr. Justice Frankfurter and Mr. Justice Douglas in dissent contended they did not. I should think that if at the time of the decision in Florida Lime Growers it was a fairly debatable question whether this Court and the District Court could entertain nonconstitutional challenges to the very statute against which the injunction was sought, there could be little doubt that neither our jurisdiction nor the jurisdiction of the District Court would extend still further to embrace issues which were independent of and far more extensive than the assumed “present” invalidity of the challenged statute.

B

Serious as these jurisdictional doubts seem to me, those which flow from the opposite assumption — that the District Court erred in enjoining the enforcement of the provisions of a statute which by their terms had expired — are even more troubling. The prayer seeking injunctive relief against the enforcement of the Delaware statute was filed in the District Court in this case in 1971. At that time, the provisions of § 1004 (c) ultimately struck down by the District Court had been functus officio since 1969. I would think that our recent treatment of non justiciability in a three-judge court context applies equally to the defect of mootness at the time injunctive relief is sought:

“[T]hat the complaint was nonjusticiable [is] not merely short of the ultimate merits; it [is] also, like an absence of statutory subject-matter jurisdiction, a ground upon which a single judge could have declined to convene a three-judge court, or upon which the three-judge court could have dissolved itself, leaving final disposition of the complaint to a single judge.
“The three-judge court is not required where the district court itself lacks jurisdiction of the complaint .... See Ex parte Poresky, 290 U. S. 30, 31 [ (1973) ].” Gonzalez v. Employees Credit Union, 419 U. S., at 100.

At the time injunctive relief against the statute was first sought, the action was not one “required” under § 1253 to be heard by a three-judge court because the claim even at that stage was moot. In such a situation, our appellate jurisdiction is confined solely to corrective action in connection with the district court’s mistaken issuance of an injunctive decree:

“As the case was not one within [§ 2281], the merits cannot be brought to this Court by a direct appeal. [Citations omitted.] But, although the merits cannot be reviewed here in such a case, this Court by virtue of its appellate jurisdiction in cases of decrees purporting to be entered pursuant to [§ 2281], necessarily has jurisdiction to determine whether the court below has acted within the authority conferred by that section and to make such corrective order as may be appropriate to the enforcement of the limitations which that section imposes.” Gully v. Interstate Nat. Gas Co., 292 U. S. 16, 18 (1934).

See also Phillips v. United States, 312 U. S., at 248; Bailey v. Patterson, 369 U. S. 31, 34 (1962); Gonzalez v. Employees Credit Union, supra, at 95 n. 12.

On the assumption that the District Court wrongly enjoined the enforcement of the statute which was moot at the time the injunction was first sought, the only proper exercise of the jurisdiction conferred upon us by 28 U. S. C. § 1253 is to reverse the injunctive decree issued by the District Court on the ground that the relief sought did not necessitate the convening of a three-judge district court, and remand the case so that it may proceed before a single-judge court.

I think the decision of the Court of Appeals for the Sixth Circuit in a situation virtually identical to that now presented here, and presented to that court in an earlier stage of the Milliken litigation, is of some weight in deciding the question of our jurisdiction here. That court held, Bradley v. Milliken, 468 F. 2d 902, cert. denied, 409 U. S. 844 (1972), that an order finding an interdistrict violation and requiring submission of plans, but not imposing any remedy, was not appealable from the District Court to the Court of Appeals. Since the jurisdiction conferred upon the courts of appeals by 28 U. S. C. §§ 1291 and 1292 (a) is far more generous in scope than that conferred upon us by 28 U. S. C. § 1253, if the Court of Appeals was right in Milliken it is highly doubtful that we have any authority to go beyond review of the District Court’s injunctive decree here.

The resolution of each of these issues which I have treated in this dissent is probably not free from doubt, and I could understand a reasoned disposition of the case here which differed from the views which I have expressed. But this is one of those cases in which an opinion of the Court seems to me to be necessary, not merely to resolve an issue concededly present, but to denominate for the benefit of the parties and the District Court what issues the Court conceives to be resolved by its summary affirmance. My dissent from that sort of affirmance here is based on my conviction that it is extraordinarily slipshod judicial procedure as well as my conviction that it is incorrect.

       Appellees contend, not implausibly, that no injunction was in fact issued in this case, and that the only action of the District Court with respect to Delaware’s Educational Advancement Act of 1968 (EAA) was to declare certain provisions unconstitutional. They rely on Gunn v. University Committee, 399 U. S. 383 (1970), and Goldstein v. Cox, 396 U. S. 471 (1970), to support their conclusion.
      If appellees are correct on this point, of course, appellants should have taken their appeal to the United States Court of Appeals for the Third Circuit rather than to this Court. Gonzalez v. Employees Credit Union, 419 U. S. 90 (1974).
      But in Gunn, supra, this Court held that “there was no order of any kind either granting or denying an injunction . . . .” 399 U. S., at 387. Goldstein v. Cox, supra, held that a District Court’s denial of plaintiffs’ motion for summary judgment was not appealable to this Court under 28 U. S. C, § 1253 where plaintiffs in their complaint had sought no preliminary injunction.
      Here the operative language of the District Court’s order addressed to appellants was that “[i]n preparing any inter-district plan, the Defendant State Board of Education is enjoined from relying upon those provisions of [the EAA] found unconstitutional by this Court.” There is thus an injunction, and it is against the enforcement of certain provisions of a state statute. While, for reasons which follow, I believe that the District Court was wrong in passing on the merits of the statute, that consideration is an argument going beyond the issue of whether or not its order was in fact an injunction as that term is used in § 1253.

      The preamble provided as follows:
      “The purpose of this chapter is to provide the framework for an effective and orderly reorganization of the existing school districts of this State through the retention of certain existing school districts and the combination of other existing school districts. It is the purpose and intent of the General Assembly to establish the policies, procedures, standards and criteria under which the State Board of Education is authorized to determine and establish the appropriate reorganized school districts and to implement the reorganization thereof.”

       Section 1002 (2) defined this term:
      “ ‘Reorganized school district’ means a school district which is constituted and established in accordance with the provisions of this chapter, including . . . where applicable, a school district resulting from a consolidation or division in accordance with the provisions of this chapter.”

      In pertinent part, § 1004 (c) provided:
      “On or before March 1, 1969, the State Board of Education shall meet and adopt a final plan of reorganization of school districts which it deems wise and in the best interests of the educational system of this State; provided, that no plan of reorganization of school districts shall be adopted which fails to meet the following requirements:
      “(2) Each proposed school district including more than 1 component former school district shall have a pupil enrollment of not less than 1900 nor more than 12,000 in grades 1 through 12. ‘Pupil enrollment’ as used in this subsection means enrollment as of September 30, 1968. Excluding vocational-technical districts there shall be no fewer than 20 nor more than 25 reorganized school districts.
      “(4) The proposed school district for the City of Wilmington shall be the City of Wilmington with the territory within its limits.”

       Appellees had originally claimed that § 1027 implicitly excluded Wilmington from its operation, 379 F. Supp. 1218, 1219 n. (Del. 1974), and therefore contributed along with § 1004 (c) to the alleged unconstitutional confinement. But the District Court in its present decision found that under § 1027 “consolidation of Wilmington with neighboring school districts is still possible by . . . referendum.” 393 F. Supp. 428, 442 n. 29 (Del. 1975). Section 1026, which sets out a similar mechanism for altering reorganized school district boundaries, does expressly exclude Wilmington. Appellees have not pursued their initial charge that this section also unconstitutionally confined black students, and the District Court did not mention § 1026 in its second opinion. Appellees have not asserted either claim on this appeal, and our inquiry can go only to § 1004 (c).

       The Court in Raines contrasted the scope of § 1252 with the scope of 18 U. S. C. § 3731, the Criminal Appeals Act. That Act allowed the Government a right of appeal from particular types of decisions of a district court prior to trial in a criminal case, and the Court in construing it in United States v. Borden Co., 308 U. S. 188, 193 (1939), stated that “[t]he Government’s appeal does not open the whole case.” The language of § 1253, with which we deal, is much more akin to that of the Criminal Appeals Act than it is to that of § 1252. See also United States v. Keitel, 211 U. S. 370, 397-399 (1908).

       Reopening a desegregation suit that had lain dormant since the mid-sixties, appellees contended that the city’s black students were being compelled to attend segregated schools. The claim was threefold: (1) the state board continued to maintain an unconstitutional dual system in New Castle County, of which Wilmington is a part; (2) the State through various practices, e. g., low-cost housing policies, had enforced or approved public and private discrimination resulting in segregated schools; (3) the portions of the EAA establishing a mechanism for school district consolidation, both created a suspect classification in directing that Wilmington be continued as a single school district and prevented the state board from implementing its Fourteenth Amendment duty to dismantle the dual system.
      Since the third prong of appellees’ claim assertedly ran against the board’s enforcement of a state statute, a three-judge court was empaneled. 28 U. S. C. § 2281. The District Court, in two separate opinions, passed upon the entire complaint. The first decision, in July 1974, found that the geographic zoning plan adopted for Wilmington in 1956 had not been effective in eliminating many racially identifiable schools, and that a unitary system had not been established, a failure chargeable to the state board. See 379 F. Supp. 1218, 1221-1223 (Del.). The latter two contentions, since they related to possible interdistrict relief, were postponed until consideration of the proper remedy. Specifically, the claim that the EAA’s exclusion of Wilmington unconstitutionally impeded the dismantling process was deemed premature since drastic intradisfrict relief might be curative. The parties were ordered to submit alternative intradistrict and interdistrict plans, the latter to incorporate suburban school districts within the county.
      Two weeks later, this Court handed down Milliken v. Bradley, 418 U. S. 717 (1974), which identified the prerequisites to ordering interdistrict relief. The suburban county districts, at the District Court’s invitation, intervened as defendants to contest any proposed consolidation remedy. They chose to adopt the state board’s pleadings and stand on the evidence already of record.
      After oral arguments, the District Court rendered. the instant decision. Under its reading of Milliken the predicate for inter-district relief was “racially discriminatory acts of the state or local school districts [that] have been a substantial cause of inter-district segregation.” Id., at 745. So framing its inquiry the District Court found: (1) a percentage of suburban students of both races had, pre-Broxvn v. Board of Education, 347 U. S. 483 (1954), traveled into the city to attend segregated schools in Wilmington; (2) the growth of identifiably black schools since Brown mirrored the substantial white migration to the suburbs, a demographic shift in part encouraged and assisted by governmental policies, the cumulative effect of which constituted segregative action with interdistrict effects; (3) the passage of the EAA, with its grant of truncated reor-ganizational power (excluding Wilmington therefrom) to the state board (a) operated not in purpose but in effect to create a suspect racial classification under the Equal Protection Clause, and (b) thus constituted a substantial interdistrict violation under Milliken. The District Court concluded as follows:
      “Here, the racially discriminatory exclusion of Wilmington prevented the State Board from considering whether sound educational principles dictated a consolidation of Wilmington with other school districts. But for this racial classification, the Board may have consolidated Wilmington with other New Castle County districts, with the result that the racial proportions of the districts would have been altered significantly. Even though the State Board may not have been required to alter the Wilmington District, this Court cannot find that the exclusion from the Board’s powers- was racially insignificant. On the contrary, the reorganization provisions of the [EAA] played a significant part in maintaining the racial identifi-ability of Wilmington and the suburban New Castle County school districts. In short, the General Assembly ‘contributed to the separation of the races by . . . redrawing school district lines,’ Milliken v. Bradley, [418 U. S.,] at 755 . . . (Stewart, J., concurring)!*3” 393 F. Supp., at 445-446.
      Footnote c*] elaborated on “redrawing”:
      “School district reorganization pursuant to [the EAA] amounted to educational redistricting. Invidious discrimination in such redis-trieting is perforce an ‘inter-district violation.’ The [EAA] ‘redrew’ the Wilmington School district lines by removing the existing Wilmington boundaries from the State Board’s discretion at the same time that other school districts in Delaware were eligible for consolidation.”
      Pursuant to the above the District Court declared unconstitutional “[t]hose provisions of [the EAA] excluding the Wilmington School District from eligibility for consolidation,” and ordered the parties to submit “alternative plans to remedy the segregation found [in the two opinions] (a) within the present boundaries of [Wilmington], and (b) incorporating other areas of [the] County.” Id., at 447. The accompanying order also specifically enjoined the board, in preparing the interdistrict version, “from relying upon” the EAA provisions found unconstitutional.


text:
    No. 75-361.
    Association on American Physicians & Surgeons et al. v. Mathews, Secretary of Health, Education, and Welfare.
   Affirmed on appeal from

D. C. N. D. Ill.


text:
    No. 75-497.
    Bush et al. v. Sebesta, Supervisor of Elections, et al.
   Affirmed on appeal from D. C. M. D. Fla.


text:
    No. 75-5116.
    Betts et al. v. Mathews, Secretary of Health, Education, and Welfare, et al.
   Affirmed on appeal from D. C. Vt.


text:
    No. 75-5408.
    Green v. United States Department of Labor et al.
   Appeal from D. C. Mass, dismissed for want of jurisdiction.


text:
    No. 75-5573.
    Green v. Department of Public Welfare of Massachusetts et al.
   Appeal from D. C. Mass, dismissed for want of jurisdiction.


text:
    No. 75-5481.
    Willis v. North Carolina State Board of Law Examiners.
   Appeal from Sup. Ct. N. C. dismissed for want of substantial federal question.


text:
    No. 74-1165.
    Sendak, Attorney General of Indiana v. Nihiser, dba Movieland Drive-In Theater.
   Appeal from D. C. N. D. Ind. Judgment vacated and case remanded for further consideration in light of Huffman v. Pursue, Ltd., 420 U. S. 592 (1975).

Mr. Justice Brennan,

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

dissenting.

This is a direct appeal from the decision of the three-judge District Court for the Northern District of Indiana declaring an Indiana obscenity public nuisance statute, Ind. Stat. Ann. § 9-2711 et seq. (Supp. 1974) (now codified at Ind. Code § 35-30-10.5-1 et seq.), patently unconstitutional under the First and Fourteenth Amendments and enjoining its enforcement. For some unknown or at least unexplained reason the Court today remands this case for reconsideration in light of Huffman v. Pursue, Ltd., 420 U. S. 592 (1975). I dissent because the three-judge court anticipated that decision and has already discharged the responsibility imposed by that decision.

On October 12, 1973, the prosecuting attorney for Adams County, Ind., filed in the Adams Circuit Court a petition to enjoin and abate appellee’s motion picture theater as a public nuisance. On the same day the Circuit Court entered a temporary restraining order with a notice and summons to appear for a hearing on a temporary injunction. Additionally, a subpoena duces tecum issued, ordering appellee to produce before the court the film “Deep Throat” and all other motion pictures in his possession, and also a list of the titles and play dates of all motion pictures exhibited by him over the past three years.

The prosecutor was proceeding under the Indiana obscenity public nuisance statute, supra. The statute provides that a place which exhibits obscene films is a public nuisance, and provides for a court order requiring the closure for up to one year of any place determined to be a public nuisance. An ex parte restraining order may issue for up to 10 days without any prior judicial determination of the obscenity of specific films, and a preliminary injunction may issue if, after hearing, the allegations of the complaint “are sustained to the satisfaction of the court.” The statute further provides that at trial the “general reputation of the place” is both admissible and prima facie evidence for proving the existence of the nuisance. If a nuisance is established at trial, an order closing the theater for a year and confiscating all personal property and contents therein shall issue. The owner of a theater closed by either preliminary or permanent injunction may obtain a release from the closing order only by posting a bond conditioned on the abatement of the nuisance.

On October 19, 1973, appellee filed suit in the United States District Court for the Northern District of Indiana. The complaint sought a declaratory judgment pursuant to 28 U. S. C. §§ 2201-2202 that the statute under which the prosecutor was proceeding was unconstitutional. The complaint also sought to enjoin any further proceedings in the Adams Circuit Court, relief premised on 42 U. S. C. § 1983. On November 14, 1974, the District Court granted summary judgment in favor of ap-pellee and the relief sought.

The Court today vacates the judgment below and remands for further consideration in light of its decision last Term in Huffman v. Pursue, Ltd., supra. Huffman, a case involving a similar nuisance statute from Ohio, held that the principles of Younger v. Harris, 401 U. S. 37 (1971), which limit federal-court equitable interference with state-court criminal proceedings, are also applicable to certain state-court proceedings which are “in aid of and closely related to criminal statutes . . . .” 420 U. S., at 604. Accordingly, the Court in Huffman remanded for a determination whether under the facts of the action “extraordinary circumstances” existed bringing the case within the narrow exceptions to Younger’s general bar.

But in the instant case, thfe District Court anticipated Huffman and, for the very reasons relied on by this Court in that case, clearly held that Younger principles were applicable. That court then proceeded to an extended analysis of the factual situation and concluded that the case fell within the Younger exceptions as involving a

“statutory scheme here . . . arguably in several respects 'flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.’ ” 405 F. Supp. 482, 494 (ND Ind. 1974).

The court concluded that the provisions rendering admissible “general reputation” evidence and constituting such evidence sufficient “prima facie” evidence of the existence of the nuisance imposed an unconstitutional prior restraint upon freedom of expression because there was not first required a judicial determination of the obscenity of any specific materials, and because the censor was not required to bear the burden of proving obscenity. The court emphasized that the statute provided for the seizure and destruction of materials which had never been judicially determined to be obscene, and for the seizure and destruction of constitutionally protected materials “merely because they are found in a place which has a reputation of exhibiting obscene films . . . .” Id., at 495. Furthermore, the court emphasized, once a closing order has issued, the statutory scheme permits future restraints against exhibition of all films unless the owner first discharges the burden of demonstrating their nonobscenity. And if such a showing is made and a release from the closing order obtained, the owner must thereafter “determine at his peril what is iiterally or arguably within the definition of 'nuisance.’ ” Ibid.

Finally, and of particular significance, the District Court held the definitional section of the statute to be "flagrantly and patently in violation of express constitutional guarantees.” Id., at 496. The statute defines as a nuisance a place at which "lewd, indecent, lascivious, or obscene” films are exhibited. The court reached its conclusion upon the authority of two Indiana Supreme Court decisions which struck down criminal obscenity statutes employing the same definition on the ground that it was too general in nature under the principles announced in Miller v. California, 413 U. S. 15 (1973). Mohney v. State, 261 Ind. 56, 300 N. E. 2d 66 (1973); Stroud v. State, 261 Ind. 58, 300 N. E. 2d 100 (1973).

Thus the case fits precisely within the clearly settled Younger exception permitting federal courts to grant relief against state authorities who proceed under a statute “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” This exception, first fashioned in Watson v. Buck, 313 U. S. 387, 402 (1941), and reaffirmed in Younger, 401 U. S., at 53-54, was twice recognized in Huffman itself, 420 U. S., at 602, 611. Therefore the judgment of the District Court should be affirmed. The Court’s remand to require the District Court to do over what it has done already makes no sense whatever. I respectfully dissent.

      Ind. Stat. Aim. § 9-2711 (d) (Supp. 1974).

      § 9-2716 (Supp. 1974).

       §9-2714 (Supp. 1974).

       §2715 (Supp. 1974).

       §9-2716. (Supp. 1974).

       §§ 9-2714, 2716 (Supp. 1974).

       The District Court stated:
      “[A]ttempts to enforce civil provisions such as the one here may be characterized as civil proceedings utilized to enforce the criminal laws and thus subject to Younger in any event. . . . The best approach is not to regard labels 'civil’ and ‘criminal’ as controlling, but to analyze the competing interests which each case presents.” 405 F. Supp. 482, 493 (ND Ind. 1974).

       It is no answer that the Court said in Huffman that the Ohio nuisance statute there involved did not fit within the “flagrantly and patently violative of express constitutional prohibitions” exception to Younger, 420 U. S., at 611-612, and n. 23, since one Ohio state-court decision had narrowly construed the scope of the statute, id., at 612 n. 23, and another had construed the Ohio definition of obscenity as comporting with the specificity requirements of Miller v. California, 420 U. S., at 596 n. 4. In sharp contrast, Indiana court decisions have not narrowed the scope of the Indiana nuisance statute and the Indiana Supreme Court, in the two decisions relied upon by the District Court, has held that the same definition of obscenity appearing in Indiana’s criminal obscenity statutes does not satisfy the specificity standards of Miller.

       The statutory scheme also provides for “summary” trial and punishment for violation of an outstanding injunction or closing order, and for any contempt of court. Ind. Stat. Ann. § 9-2717 (Supp. 1974). In this context the District Court found the statutory scheme to be an attempt to circumvent the safeguards attendant upon formal criminal proceedings. 405 F. Supp., at 496.

       Ind. Stat. Ann. § 9-2711 (d) (Supp. 1974).


text:
    No. A-385.
    Long Visitor et al. v. United States.
   C. A. 8th Cir. Application for bail pending timely filing of petition for writ of certiorari, presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    No. A-392 (75-322).
    Vernell v. United States.
   C. A. 5th Cir. Application for bail, presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    No. A-395.
    Lak Man Tom v. Immigration and Naturalization Service.
   C. A. 9th Cir. Motion to vacate stay of deportation heretofore entered by Mr. Justice Douglas on October 30, 1975, granted.


text:
    No. A-432.
    Hamling et al. v. United States.
   Application for stay of mandate of the United States Court of Appeals for the Ninth Circuit, presented to Mr. Justice Brennan, and by him referred to the Court, denied.


text:
    No. 75-110.
    Sakraida v. Ag Pro, Inc.
   C. A. 5th Cir. [Certiorari granted, ante, p. 891.] Motion of respondent to limit grant of certiorari denied.


text:
    No. 74-1025.
    Hines et al. v. Anchor Motor Freight, Inc., et al.
   C. A. 6th Cir. [Certiorari granted, 421 U. S. 928.] Motion to substitute Chrya J. Cartwright, Administratrix of Estate of Arthur D. Cartwright, as a party petitioner in place of Arthur D. Cartwright, deceased, granted.


text:
    No. 75-5402.
    Faison v. Washington.
   Motion for leave to file petition for writ of certiorari denied.


text:
    No. 75-5375.
    Johnson v. Ciccione et al.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 75-5315.
    No. 75-5410.
    No. 75-5427.
    Chilembwe v. United States District Court for the District of Nevada et al.; Stratton v. United States Court of Appeals for the Sixth Circuit; and Tubbs v. Supreme Court of Texas.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 75-288.
    Sloan v. Court of Appeals of New York.
   Motion for leave to file petition for writ of mandamus and/or other relief denied.


text:
    No. 75-73.
    No. 75-109.
    Bellotti, Attorney General of Massachusetts, et al. v. Baird et al.; and Hunerwadel v. Baird et al.
   Appeals from D. C. Mass. Probable jurisdiction noted. Cases consolidated and a total of one hour allotted for oral argument. Cases set for oral argument with Nos. 74-1151, Planned Parenthood of Central Missouri v. Danforth, and 74-419, Danforth v. Planned Parenthood of Central Missouri [probable jurisdiction noted, ante, p. 819]. Reported below: 393 F. Supp. 847.


text:
    No. 75-491.
    United States v. Agurs.
   C. A. D. C. Cir. Motion of respondent for leave to proceed in forma ;pauperis and certiorari granted.


text:
    No. 73-1750.
    Pitt County Transportation Co. v. Carolina Freight Carriers Corp. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 74-973.
    Jones Truck Lines, Inc. v. Ryder Truck Lines, Inc., et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 74-6691.
    Lerner v. Mullen, Warden.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 75-137.
    Grubb v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-138.
    Yeomans et al. v. Kentucky et al.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Brennan,

dissenting.

Petitioners, including citizens of Kentucky and Ohio, instituted this class action on behalf of all purchasers of nonvoting shares of Harmony Loan Co. of Kentucky seeking damages from the Commonwealth of Kentucky, the State of Ohio, certain agencies of these States, and other defendants not relevant here. Petitioners alleged that the States aided and abetted, or participated in, fraudulent activities in violation of the Securities Act of 1933 (48 Stat. 74, as amended, 15 U. S. C. § 77a et seg.), the Securities Exchange Act of 1934 (48 Stat. 881, as amended, 15 U. S. C. § 78a et seq.), and various rules promulgated by the Securities and Exchange Commission (primarily Rule 10b-5, 17 CFR § 240.10b-5 (1975)). The United States District Court for the Southern District of Ohio dismissed the action as to the States on the ground that it was barred by the Eleventh Amendment, and the United States Court of Appeals for the Sixth Circuit affirmed, 514 F. 2d 993 (1975).

In part, this suit is brought by citizens of Kentucky and Ohio against Kentucky, Ohio, and agencies of these States. In that circumstance, the States may not invoke the Eleventh Amendment as to plaintiffs suing their own States, since that Amendment bars federal court suits against States only by citizens of other States. Rather, the question is whether the States may avail themselves of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to petitioners’ claims for damages. In my view the States may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Missouri Public Health Dept., 411 U. S. 279, 298 (1973): The States surrendered that immunity, in Hamilton’s words, “in the plan of the Convention” that formed the Union, at least insofar as the States granted Congress specifically enumerated powers. See id., at 319 n. 7; Parden v. Terminal R. Co., 377 U. S. 184 (1964). Congressional authority to enact the securities laws cited above is found in Art. I, § 8, cl. 3, one of the enumerated powers granted Congress by the- States in the Constitution. I remain of the opinion that “because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver,” 411 U. S., at 300, and thus have no occasion to inquire whether or not Congress authorized actions against the States for federal securities law violations, or whether Kentucky and Ohio have waived immunity on the facts of this case.

I would grant certiorari and reverse the judgment.


text:
    No. 75-151.
    Greenlee v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 75-157.
    Liebert v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 75-163.
    California & Hawaiian Sugar Co. et al. v. United States District Court for the Northern District of California et al.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 75-211.
    Dalton v. Indiana Refrigerator Lines, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-230.
    Lovato v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-244.
    Braverman v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-274.
    Bibbs, Administrator, et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 75-343.
    District 153, International Association of Machinists & Aerospace Workers, AFL-CIO v. National Labor Relations Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 75-321.
    R. L. Sweet Lumber Co. v. National Labor Relations Board.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-447.
    City of Cleveland v. Public Utilities Commission of Ohio et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 75-459.
    Goodyear Tire & Rubber Co. v. Local Union No. 200, United Rubber, Cork, Linoleum & Plastic Workers of America.
   Sup. Ct. Ohio. Certio-rari denied.


text:
    No. 75-462.
    National Car Rental System, Inc. v. Better Monkey Grip Co. et al.
   C. A. 5th Cir. Certio-rari denied.


text:
    No. 75-473.
    Hahn et ux. v. Hahn.
   Ct. App. Ohio, Franklin County. Certiorari denied.


text:
    No. 75-474.
    State Board of Elections of Illinois et al. v. Communist Party of Illinois et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-476.
    Carr et al. v. Montgomery County Board of Education et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-480.
    National Educational Advertising Services, Inc. v. Cass Student Advertising, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-486.
    Groh v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 75-489.
    Sperberg v. Goodyear Tire & Rubber Co. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-494.
    Overseas Motors, Inc. v. Import Motors Ltd., Inc., et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-535.
    Panduit Corp. v. Burndy Corp. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-5109.
    Hood v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-5122.
    Hook v. Verni et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5167.
    Williams v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5191.
    Wendel v. Levi, Attorney General, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5242.
    Allen et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5284.
    Wrigley v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-5292.
    Eatherton v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 75-5293.
    Farmer v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-5310.
    De la Fuente v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5312.
    Randle v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-5316.
    Widman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5320.
    Pogue v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5321.
    Noble v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5331.
    Warren et al. v. Ramsey, Superintendent, Federal Prison Industries, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-5345.
    Harris v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-5347.
    Freeman v. Argonaut Insurance Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5350.
    Schneider v. Grand.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-5352.
    Camp v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-5354.
    Arbore v. New York.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No 75-5365.
    Jackson v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5367.
    Galliher v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5377.
    Peters v. Crain Bros., Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 75-5388.
    Horne v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5389.
    Tye v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-5392.
    Bunkers v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5397.
    Wallace v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-5404.
    Toda v. Tanaka.
   Sup. Ct. Haw. Cer-tiorari denied.


text:
    No. 75-5405.
    Roundtree v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 75-5406.
    Foye v. LaVallee, Corrrectional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5407.
    Ristau v. Henderson, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5409.
    Burdeau v. Trustees of the California State Colleges et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5412.
    Mills v. Muscogee County Superior Court, Columbus, Ga.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5415.
    Flores et al. v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5417.
    Najares v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 75-5435.
    Swan v. Michigan.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 75-5439.
    Bell v. Skelton, Chairman, Texas Board of Pardons and Paroles, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5451.
    Conway et al. v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 75-5452.
    Bohmer v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 75-5462.
    Griffin v. Warden, West Virginia State Penitentiary.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-5463.
    Welsh v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-5469.
    Laub v. California.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 75-5531.
    Williams v. New York.
   Sup. Ct. N. Y., New York County. Certiorari denied.


text:
    No. 75-5532.
    Hall v. Michigan.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 75-5535.
    King v. Schubin, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5557.
    Malone v. Alabama.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5570.
    Lockman v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 75-5628.
    McDonald v. Tennessee.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 74-1374.
    No. 74-1384.
    No. 74-1442.
    No. 74-1474.
    No. 74-1504.
    No. 74-1532.
    No. 74-1562.
    No. 74-6323.
    No. 74-6707.
    No. 74-6719.
    No. 74-6724.
    No. 74-6729.
    No. 74-6753.
    No. 75-5.
    No. 75-156.
    No. 75-170.
    No. 75-5114.
    Piluso v. United States, Clay Communications, Inc. v. Sprouse, Peterson v. Mathews, Secretary of Health, Education, and Welfare, et al., Dickson v. Dickson, Bagley Produce, Inc. v. National Labor Relations Board, Cocke v. Cantor et al., Meretsky v. United States, Jordan v. United States, Bowerski, aka Bonafonti v. United States, Escofil v. Commissioner of Internal Revenue, Montano-Sevilla v. Immigration and Naturalization Service, Thornton v. Louisiana, Bennett v. Director of Internal Revenue for North Carolina et al., Serra v. United States, Dallas Cap & Emblem Mfg., Inc. v. Boston Professional Hockey Assn., Inc., et al., Thompson v. City of Covington et al., Alers v. Toledo et al.,
   ante, p. 874;

ante, p. 882;

ante, p. 830;

ante, p. 832;

ante, p. 833;

ante, p. 835;

ante, p. 836;

ante, p. 842;

ante, p. 860;

ante, p. 804;

ante, p. 861 ;

ante, p. 861;

ante, p. 862;

ante, p. 863;

ante, p. 868;

ante, p. 869; and

ante, p. 897. Petitions for rehearing denied.


text:
    No. 75-5214.
    Barnett v. MacDonald, dba Kerr, FitzGerald & Kerr,
   ante, p. 873. Petition for rehearing denied.


text:
    November 20, 1975
    No. 75-587.
    Philip B. Basser Advertising, Inc., et al. v. Redevelopment Authority of the City of Philadelphia.
   Pa. Commw. Ct. Certiorari dismissed as to petitioner Sorger under this Court’s Rule 60.


text:
    December 1, 1975
    No. 75-172.
    Ohio v. Tymcio.
   Appeal from Sup. Ct. Ohio dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied, it appearing that the judgment below rests on adequate state grounds.


text:
    No. 75-366.
    Agost et al. v. Idaho et al.
   Appeal from Sup. Ct. Idaho dismissed for want of substantial federal question.


text:
    No. 75-378.
    Maldini et al. v. Ambro, Supervisor of Town of Huntington, et al.
   Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 75-5519.
    DeSa v. Michigan.
   Appeal from Cir. Ct. Mich., Macomb County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 75-219.
    Perini, Correctional Superintendent v. Downey.
   Appeal from C. A. 6th Cir. Motion of appellee for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for reconsideration in light of enactment of Ohio Rev. Code Ann. § 2925.03, by Amended Substitute House Bill No. 300, File No. 105, ii 1, 3, effective Nov. 21, 1975. See Page’s Ohio Revised Code, 1975 Legis. Bull. No. 4, p. 261.


text:
    No. 75-5634.
    Zbichorski v. Gagnon, Warden.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 75-5502.
    Cozzetti v. Hall, Chief Judge, U. S. District Court.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 74-6642.
    Fabian v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 74-6647.
    Tyler et al. v. Ryan et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-119.
    Kimberly-Clark Corp. v. Equal Employment Opportunity Commission.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-205.
    Harris v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 75-213.
    Romano v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-327.
    Wood v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 75-356.
    International Longshoremen’s Assn. et al. v. Equal Employment Opportunity Commission.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-281.
    Seay v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-290.
    Lopez v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-384.
    Atlantic Marine, Inc., et al. v. National Labor Relations Board.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-408.
    Rastelli v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 75-417.
    Griffith v. Nixon et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-426.
    Bratton, Executor v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-469.
    Greenya v. George Washington University et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 75-496.
    Regional High School District No. 5 et al. v. Baker et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-498.
    Dawson v. Florida Bar.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 75-499.
    Rogers v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 75-504.
    In re Thurmer.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 75-512.
    Shapiro v. Borough of Hightstown.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 75-517.
    Mace v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 75-521.
    Wilke, Trustee in Bankruptcy v. Brooks et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-529.
    Farley Terminal Co., Inc. v. Atchison, Topeka & Santa Fe Railway Co.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-537.
    Touche Ross & Co. et al. v. Fabrikant et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-551.
    Butler v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 75-5074.
    Harkins v. Bomerito et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-5177.
    No. 75-5184.
    No. 75-5245.
    Shelton v. United States; White v. United States; and McWhite v. United States.
   C. A. 4th Cir. Certiorari denied. Reported below: 526 F. 2d 590 and 591.


text:
    No. 75-5213.
    Owens v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 75-5243.
    Stephens v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5253.
    Hudson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5330.
    No. 75-5336.
    Grimes et al. v. United States; and Lewis v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 528 F. 2d 143.


text:
    No. 75-5265.
    Davis v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-5291.
    West v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5294.
    Jones v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-5341.
    Griffith (Castillo) v. Government of the Canal Zone.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5346.
    Shields v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 75-5353.
    Smith v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5363.
    Bowser v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-5373.
    Dobbs v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5383.
    Jones v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 75-5385.
    Ray v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5399.
    Stratton v. United States District Court for the Eastern District of Kentucky.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-5420.
    Roots v. Woodall.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5434.
    Stover v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5436.
    Hill v. North American Hide Exporters, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5440.
    Strand v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5448.
    Leonard et al. v. Mississippi State Probation and Parole Board.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5450.
    Curry v. Jensen et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5455.
    Donnelly et al. v. Donnelly et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 75-5465.
    Lewis v. Henderson, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5475.
    Cox v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-5476.
    Taras v. First Arlington National Bank.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-5479.
    Klein v. Butler, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5480.
    Hilton v. Vincent, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5489.
    Stevenson v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 75-5495.
    Pustare v. Havener, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-5501.
    Wills v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 75-5512.
    Abina v. California.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 75-5513.
    Epps v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 75-5515.
    Shears v. Ohio.
   Ct. App. Ohio, Montgomery County. Certiorari denied.


text:
    No. 75-5518.
    Patterson v. Ault, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5521.
    Ball v. Alabama.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5524.
    Robinson v. Turnello, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5528.
    Heltzel v. Cowan, Penitentiary Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-5530.
    Moreno v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5534.
    Bowes v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 75-223.
    Pennsylvania v. Jackson et al.
   Sup. Ct. Pa. Certiorari denied, it appearing that the judgment below rests on adequate state grounds.


text:
    No. 75-5536.
    Washington v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 75-5539.
    Currier v. City of Pasadena.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 75-5554.
    Beatty v. Alston, Workhouse Superintendent.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 75-5566.
    Whitehouse v. Deramus, Correctional Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 75-350.
    Pacific Lighting Service Co. et al. v. Federal Power Commission.
   C. A. 9th Cir. Certiorari denied.

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


text:
    No. 75-359.
    California et al. v. Federal Power Commission.
   C. A. 9th Cir. Certiorari denied.

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


text:
    No. 75-403.
    Dayton Board of Education et al. v. Brinkman et al.
   C. A. 6th Cir. Certiorari denied.

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


author: Mr. Justice White,

text:
    No. 75-432.
    Greco v. Orange Memorial Hospital Corp. et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice White,

with whom The Chief Justice joins,

dissenting.

This case presents the question whether a private hospital largely funded by the State and Federal Governments, partly controlled by the state government and the policymaking body of which is chosen by members of the community may, consistent with the Constitution, refuse to perform elective abortions. In unanimously answering the question in the affirmative, different members of the court below employed two distinct lines of analysis, each of which squarely conflicts with the rule of law existing in other Circuits. The question is important, the conflict is clear, and this Court has a responsibility to resolve it.

Petitioner is a doctor who had staff privileges at the respondent hospital at times relevant to this lawsuit. The hospital had been built by the Orange County, Tex., government with local government money and with federal money obtained by Orange County under the Hill-Burton Act. 60 Stat. 1040, § 605, as added, 78 Stat. 453, and amended, 42 U. S. C. § 291e. The hospital and the land under it were owned by Orange County. However, in 1957, Orange County leased the hospital and the land under it for $1 per year to the respondent, Orange County Memorial Hospital Corp. (Corporation), a nonprofit tax-exempt corporation. Under the lease the Corporation agreed: (1) to operate the hospital as a nonprofit institution and to furnish to the general public medical and surgical care subject to such terms and regulations as the Corporation might prescribe; (2) to carry out the assurances required of the county in order to obtain federal funds and to relinquish possession of the hospital in the event it failed adequately to comply; (3) to have all equipment and supplies inventoried, in a manner approved by the county, and to dispose of worthless, damaged, or worn-out equipment only with the prior approval of the Commissioners Court; (4) to be responsible for the expense of the day-to-day operation and maintenance of the hospital; (5) to make additions to the hospital with the written consent of the county and at its own expense; (6) to keep all appropriate insurance in effect; (7) to submit an annual audit to the county and to furnish any information which the county felt would be necessary to inform the people of Orange County about the operation and financial condition of the institution; (8) to accept indigent patients certified by the Corporation subject to the prior obligation to receive emergency cases. Orange County has reserved the right through its County Health Office to advise the Corporation that an indigent is being kept in the hospital for a longer period of time than necessary. The lease specifically indicates that the Corporation "has undertaken to relieve [the county] of the responsibility and expense of operating a hospital.”

The policy of the hospital is, as a result of the lease to the Corporation, set by the Corporation’s Board of Directors which consists of nine members. Five are drawn from “life members” — consisting of all people who have contributed $1,000 or more to the Corporation— and four are elected by “advisory-members” — consisting of any Orange County property owner who attends Corporation meetings.

The Board of Directors, on recommendation of the medical staff, adopted in early 1973 a policy against the performance of “elective” abortions at the hospital. As a result, petitioner was unable to accommodate patients who sought his services for that purpose. Petitioner then brought suit under 42 U. S. C. § 1983 against, inter alia, the Corporation, its Board of Directors, and the County Commissioners of Orange County, seeking damages and injunctive relief Petitioner claimed that the actions of the respondents were unconstitutional in that they interfered with the liberty of a woman to choose whether or not to bear a child, in violation of the Fourteenth Amendment, as construed in Roe v. Wade, 410 U. S. 113 (1973), and also interfered with his right to practice his profession free from unconstitutional interference.

The District Court dismissed petitioner’s complaint essentially on the ground that the Board of Directors of the Corporation is a nongqvernmental body and that the state instrumentality, i. e., Orange County, was- not responsible for the Board’s decision not to give elective abortions. Absent such responsibility, respondents’ conduct is not unconstitutional.

A panel of the Court of Appeals for the Fifth Circuit also concluded that respondents had not acted in violation of the Constitution. Two members of the panel agreed with the District Court and stated that the respondents had not acted in an unconstitutional manner because the “Sta^e” was not responsible for the Board of Directors’ decisions. This conclusion is squarely in conflict with the law of two other Circuits. In O’Neill v. Grayson County War Memorial Hospital, 472 F. 2d 1140 (1973), the Sixth Circuit held a hospital to be an instrumentality of the State, the conduct of which is governed by the same constitutional limitations as the State’s, on facts virtually identical to those involved here. In O’Neill, hospital facilities were owned by the county and leased to a foundation for the sum of $1 per year. The foundation agreed to fulfill all duties and responsibilities incident to the maintenance and operation of the hospital and agreed to assume the obligations and agreements that the county governing body had made with the United States in securing Hill-Burton funds. Similarly, the governing body of the hospital was to contain some members selected from the communities served by the hospital. The only fact even mentioned in the O’Neill opinion which is not mentioned in the opinion below is that there the nonprofit corporation was, in the event that it ceased to function, to pay to the local government any unused contributions. The provision, which would come into play only in the very unlikely event that the nonprofit corporation ceased to exist for other than financial reasons, can hardly explain the different result in that case. The decision in O’Neill conflicts with the decision in this case. The conclusion of the two judges below is also in conflict with the rule in the Fourth Circuit that a hospital is a governmental instrumentality solely by reason of receipt of Hill-Burton funds and the hospital’s consequent legal obligations. Christhilf v. Annapolis Emergency Hospital Assn., Inc., 496 F. 2d 174 (1974); Sams v. Ohio Valley General Hospital Assn., 413 F. 2d 826 (1969); Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959 (1963). Contra: Watkins v. Mercy Medical Center, 520 F. 2d 894 (CA9 1975); Ascherman v. Presbyterian Hospital of Pacific Med. Ctr., Inc., 507 F. 2d 1103 (CA9 1974); Doe v. Bellin Memorial Hospital, 479 F. 2d 756 (CA7 1973); Ward v. St. Anthony Hospital, 476 F. 2d 671 (CA10 1973); Jackson v. Norton-Children’s Hospitals, Inc., 487 F. 2d 502 (CA6 1973).

The third member of the panel below also concluded that the respondents had engaged in no unconstitutional conduct. He stated that the State may properly choose to fund operations by paying for the hospital in which they are performed, without permitting the hospital to be used for any particular type of operation. This conclusion is squarely contrary to the decisions of two Circuits, Doe v. Poelker, 515 F. 2d 541 (CA8 1975); Nyberg v. City of Virginia, 495 F. 2d 1342 (CA8 1974); and Doe v. Hale Hospital, 500 F. 2d 144 (CA1 1974); and contrary in principle to the law in several others. Doe v. Rose, 499 F. 2d 1112 (CA10 1974); Wulff v. Singleton, 508 F. 2d 1211 (CA8 1974), cert. granted, 422 U. S. 1041 (1975); Doe v. Mundy, 514 F. 2d 1179 (CA7 1975); see also Roe v. Norton, 380 F. Supp. 726 (Conn. 1974) ; Doe v. Wohlgemuth, 376 F. Supp, 173 (WD Pa. 1974) ; Doe v. Rampton, 366 F. Supp. 189 (Utah 1973); Klein v. Nassau County Medical Center, 347 F. Supp. 496 (EDNY 1972); Doe v. Westby, 383 F. Supp. 1143 (SD 1974), vacated and remanded, 420 U. S. 968 (1975); and cf. Hathaway v. Worcester City Hospital, 475 F. 2d 701 (CA1 1973).

It is apparent that on either theory adopted by the members of the court below to support its conclusion that the respondents had not acted in violation of the Constitution, there is a conflict with the law in other Circuits. Whether or not the Court agrees with the result reached below, the conflicts are square; they are on issues which arise with frequency in the lower federal courts; and they are on significant questions of law. Perhaps, in light of the current pressures on our docket, there may be a category of conflicts, involving insignificant points of federal law, which we simply do not have, the capacity to resolve. However, it would undoubtedly surprise members of the bar and the public that this Court views the conflicts created by the decision below to fall within such a category.

The task of policing' this Court’s decisions in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), is a difficult one; but having exercised its power as it did, the Court has a responsibility to resolve the problems arising in the wake of those decisions. I would grant the petition for a writ of certiorari and set this case for oral argument.

       Respondents point out that petitioner ceased his relationship with the hospital after the filing of the instant lawsuit and claim that the case therefore became moot. However this may be with respect to petitioner’s injunctive and declaratory claims, his suit for damages is plainly still alive.

       Respondents claim that Roe v. Wade, and Doe v. Bolton, 410 U. S. 179 (1973), recognize a constitutional right in the abortion decision of the woman seeking the abortion and not in the doctor; and argue that a doctor has no standing to litigate the interests of the pregnant woman except when he is the defendant in a criminal case. This argument was rejected by both courts below as being inconsistent with this Court’s decision to extend standing to doctors in Doe v. Bolton, supra, at 188-189, who had been plaintiffs below and not defendants in a criminal case. Accord: Wulff v. Singleton, 508 F. 2d 1211 (CA8 1974), cert. granted, 422 U. S. 1041 (1975); Nyberg v. City of Virginia, 495 F. 2d 1342 (CA8 1974) (podiatrist); Shaw v. Hospital Authority of Cobb County, 507 F. 2d 625 (CA5 1975); YWCA v. Kugler, 342 F. Supp. 1048, 1055 (NJ 1972). In light of the fact that this Court will decide in Wulff v. Singleton, supra, the standing issue presented in this case, an outright denial of this petition can be justified only by a conclusion that the other issues decided below do not merit review.


text:
    No. 74-495.
    Susi et al. v. Flowers, Judge.
   Sup. Ct. Ohio. Certiorari denied.

Mr. Justice Brennan,

with whom Mr. Justice Marshall concurs,

dissenting.

Petitioners were arrested on August 31, 1971, and charged with permitting a room to be used for gambling, a misdemeanor, Ohio Rev. Code Ann. § 2915.01 (Supp. 1972), and with possession of numbers game tickets, a felony, Ohio Rev. Code Ann. § 2915.111 (Supp. 1972). On March 6, 1972, petitioners were tried and convicted of the first charge in the Municipal Court of Franklin County, Ohio. They were subsequently indicted on the felony charge in the Court of Common Pleas of Franklin County, and they filed a motion to dismiss the indictment as violative of double jeopardy based on the previous conviction for a misdemeanor arising out of the same criminal episode. The trial court overruled the motion to dismiss, and the Court of Appeals dismissed petitioners’ complaint seeking habeas corpus. In re Susi, 38 Ohio App. 2d 73, 313 N. E. 2d 422 (1973). The same court then dismissed petitioners’ motion for a writ of prohibition, and this dismissal was affirmed on appeal by the Ohio Supreme Court. State ex rel. Susi v. Flowers, 43 Ohio St. 2d 11, 330 N. E. 2d 662 (1975).

Thus, the State seeks to try petitioners on two charges in separate trials, although the charges clearly arose out of the same criminal transaction or episode. In that circumstance, we should grant the petition for certiorari and reverse the denial of petitioners’ complaint seeking a writ of prohibition. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), requires the joinder at one trial, 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 Vardas v. Texas, ante, p. 904 (Brennan, J., dissenting); Stewart v. Iowa, ante, p. 902 (Brennan, J., dissenting); Waugh v. Gray, 422 U. S. 1027 (1975) (Brennan, J., dissenting); Wells v. Missouri, 419 U. S. 1075 (1974) (Brennan, J., dissenting); Moton v. Swenson, 417 U. S. 957 (1974) (Brennan, J., dissenting); Tijerina v. New Mexico, 417 U. S. 956 (1974) (Brennan, J., dissenting); Ciuzio v. United States, 416 U. S. 995 (1974) (Brennan, J., dissenting); Harris v. Washington, 404 U. S. 55, 57 (1971) (concurring statement of Douglas, Brennan, and Marshall, JJ.,); Waller v. Florida, 397 U. S. 387, 395 (1970) (Brennan, J., concurring). See also People v. White, 390 Mich. 245, 212 N. W. 2d 222 (1973); State v. Brown, 262 Ore. 442, 497 P. 2d 1191 (1972); Commonwealth v. Campana, 452 Pa. 233, 304 A. 2d 432 (1973), vacated and remanded, 414 U. S. 808 (1973), adhered to on remand, 455 Pa. 622, 314 A. 2d 854 (1974); State v. Gregory, 66 N. J. 510, 333 A. 2d 257 (1975).


text:
    No. 74-1410.
    No. 74-1548.
    No. 74-1585.
    No. 74-6336.
    No. 74-6588.
    No. 74-6651.
    No. 75-45.
    Roberts et al. v. United States, Old Town Yacht Basin, Inc. v. City of Alexandria, B. Coleman Corp. v. 47th & State Currency Exchange, Inc., Warner v. United States, Cozzetti v. United States District Court for the District of Nevada et al., Lynch v. United States, Tang et al. v. Craver et al.,
   ante, p. 829;

ante, p. 836;

ante, p. 806;

ante, p. 843;

ante, p. 818;

ante, p. 852;. and

ante, p. 865. Petitions for rehearing denied.


text:
    No. 74-1573.
    United Mine Workers of America et al. v. Island Creek Coal Co.,
   ante, p. 877. Petition for rehearing denied.

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


text:
    December 2, 1975
    No. 75-513.
    Doolittle et al. v. United States.
   C. A. 5th Cir. Petition for writ of certiorari dismissed as to petitioner Baxter under this Court’s Rule 60.


text:
    December 8, 1975
    No. 75-5751.
    Meyers v. United States.
   C. A. 2d Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    No. 75-280.
    Washum et al. v. United States et al.
   Affirmed on appeal from D. C. Ariz.


text:
    No. 75-348.
    Clemons et al. v. United States et al.
   Appeal from D. C. S. D. Ohio. Motion of American Physical Therapy Assn, for leave to file a brief as amicus curiae granted. Judgment affirmed.


text:
    No. 75-582.
    Norfolk & Western Railway Co. et al. v. Beatty et al., Judges.
   Affirmed on appeal from D. C. S. D. Ill.


text:
    No. 75-299.
    National Gypsum Co. v. Administrator, Louisiana Department of Employment Security, et al.
   Appeal from Sup. Ct. La. dismissed for want of properly presented federal question.


text:
    No. 75-519.
    Jamieson v. Commissioner of Internal Revenue.
   Appeal from C. A. 7th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, cer-tiorari denied.


text:
    No. 75-5571.
    Perez et al. v. Bateman, Commissioner, Department of Community Affairs of Massachusetts, et al.
   Appeal from Sup. Jud. Ct. Mass, dismissed for want of substantial federal question.


text:
    No. 75-542.
    Yonkers Community Development Agency v. Morris et al.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.


text:
    No. 75-5593.
    Ogrod, aka Ogrodnicki v. Ogrod, aka Ogrodnicki.
   Appeal from. Sup. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. A-426.
    Nebraska Press Assn. et al. v. Stuart, Judge.
    [See No. A-513, infra.]

   On November 21, 1975, applicants filed a motion with the full Court to vacate in part Mr. Justice Black-mun’s stay order filed herein on November 20, 1975. Inasmuch as the order of November 20 was directed solely to the order dated October 27, 1975, of the District Court of Lincoln County, Neb., and by its terms was subject to such action as might subsequently be taken by the Supreme Court of Nebraska, and inasmuch as the Supreme Court of Nebraska on December 1 issued its order in the matter and Mr. Justice Blackmun’s order has thereby expired and is no longer effective, applicants’ motion is denied. Denial of this application is without prejudice to the Court’s consideration of the applicants’ further application for stays and for other relief filed with this Court on December 4, 1975, and presently pending.


text:
    No. A-455.
    Brown v. United States.
   C. A. 6th Cir. Application for bail pending appeal, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. A-466.
    Steel et al. v. Fine et al.
   Application for writ of habeas corpus and all other relief, presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. A-495.
    Ratcliff v. United States District Court for the Eastern District of Texas.
   Application for leave to file petition for writ of mandamus, presented to

Mr. Justice Powell, and by him referred to the Court, denied.


text:
    No. A-513.
    Nebraska Press Assn. et al. v. Stuart, Judge.
    [See No. A-426, supra.].

   Motion to treat previously filed papers as a petition for writ of certiorari to the Supreme Court of Nebraska granted; consideration of said petition for writ of certiorari is deferred until requested responses thereto have been received or until the close of business Tuesday, December 9, 1975. Consideration of application for stay of judgment of the Supreme Court of Nebraska, entered December 1, 1975, deferred pending further order of the Court.

Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall would grant the application.


text:
    No. 54,
    Orig.
    United States v. Florida et al.
   It is ordered that the Honorable Olin Hatfield Chilson, Senior Judge for the United States District Court for the District of Colorado, be appointed Special Master in place of the Honorable Charles L. Powell, deceased.

The Special Master shall have authority to fix the time and conditions for filing of additional pleadings and to direct subsequent proceedings, and authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

The Master shall be allowed his actual expenses, the allowances to him, the compensation paid to his technical, stenographic and clerical assistants, the cost of printing his reports, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.

[For earlier orders herein, see, e. g., 408 U. S. 918.]

It is further ordered that if the position of Special Master becomes vacant during the recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court herein.

The motion of the defendants for leave to file a counterclaim is referred to the Special Master.


text:
    No. 74-1452.
    Hospital Building Co. v. Trustees of Rex Hospital et al.
   C. A. 4th Cir. [Certiorari granted, ante, p. 820.] Motion of Federation of Ameri-can Hospitals for leave to file a brief as amicus curiae granted.