text:
    No. 74-1318.
    Drew Municipal Separate School District et al. v. Andrews et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 820.] Motions of Child Welfare League of America and National Education Assn, for leave to file briefs as amici curiae granted.


source: Caselaw Access Project

license: Public Domain

text:
    No. 74-1393.
    Singleton, Chief, Bureau of Medical Services, Department of Health and Welfare of Missouri v. Wulff et al.
   C. A. 8th Cir. [Certiorari granted, 422 U. S. 1041.] Motion of respondents to expand scope of certiorari denied.


text:
    No. 75-104.
    United Jewish Organizations of Williamsburgh, Inc., et al. v. Carey, Governor of New York, et al.
   C. A. 2d Cir. [Certiorari granted, ante, p. 945.] Motion of Board for Legal Assistance to the-Jewish Poor, Inc., et al., for leave to file a brief as amici curiae granted.

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


text:
    No. 74-145.
    Northern Cheyenne Tribe v. Hollowbreast et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 891.] Motion of Neil Haight, Esquire, to permit Steven L. Bunch to participate in oral argument pro hac vice granted.


text:
    No. 75-957.
    Evans et al. v. Fromme et al.
   C. A. 9th Cir. Motion to expedite consideration to consolidate for oral argument with No. 75-817, Nebraska Press Assn. v. Stuart, Judge [certiorari granted, ante, p. 1027], denied.


text:
    No. 75-5529.
    Tyler v. Wangelin, U. S. District Judge.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 75-5483.
    No. 75-5807.
    Tyler v. Wangelin, U. S. District Judge; and Matthews v. Ingraham, U. S. Circuit Judge, et al.
   Motions for leave to file petitions for writs of prohibition denied.


text:
    No. 75-804.
    Hill v. United Brotherhood of Carpenters & Joiners of America, Local 25, et al.
   Ct. App. Cal., 2d App. Dist. Certiorari granted.


text:
    No. 75-454.
    Brannon v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 75-576.
    Erhard v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-588.
    No. 75-592.
    No. 75-705.
    Washington et al. v. United States et al.; Northwest Steelheaders Council of Trout Unlimited v. United States et al.; and Washington Reef Net Owners Assn. v. United States et al.
   C. A. 9th Cir. Certiorari denied. Reported below: 520 F. 2d 676.


text:
    No. 75-604.
    Caldwell, aka Morgan, et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 75-612.
    Quicksey v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-619.
    Mann et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-620.
    Neidorf et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-640.
    Frank v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-706.
    Adolph Coors Co. v. Commissioner of Internal Revenue.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 75-730.
    Retail Credit Corp. et al. v. Hoke.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-732.
    KFC National Management Co. v. National Labor Relations Board.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-745.
    Chayes Virginia Corp. v. National Labor Relations Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-768.
    Burgwin et al. v. Mattson et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-779.
    Jack v. Black, Judge.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-786.
    County Board of Arlington County v. God.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 75-790.
    McCullough v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 75-793.
    Local 254, Graphic Arts International Union, AFL-CIO, et al. v. Western Publishing Co., Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-799.
    Schwartz v. Schwartz.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 75-801.
    Spence v. State Bar of South Carolina et al.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 75-803.
    Hopper et al. v. Anthony De Crescenzo, Inc.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 75-810.
    Caldwell v. Southeast Title & Insurance Co.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 75-848.
    Agosti v. Huge et al., Trustees.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 75-5511.
    Moore v. Koelzer et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 75-5543.
    No. 75-5773.
    Frazier v. United States; and Peterson v. United States.
   C. A. 4th Cir. Certiorari denied. Reported below: 524 F. 2d 167.


text:
    No. 75-5555.
    Powers v. Idaho.
   Sup. Ct. Idaho. Certiorari denied.


text:
    No. 75-5598.
    Snow v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5601.
    Smith v. Stynchcombe, Sheriff.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 75-5619.
    Nattin v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 75-5632.
    Patterson v. Ault, Corrections Commissioner, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5635.
    Logan v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5643.
    Murphy v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5657.
    Edwards v. Louisiana.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5658.
    Wimberly v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 75-5659.
    Martin v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 75-5660.
    Weeks v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 75-5694.
    Sprangle, aka Greene, et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 75-5661.
    Winters v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 75-5673.
    Snow v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5691.
    Williams v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 75-5707.
    Hines v. Bombard, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5729.
    Teplitsky v. Bureau of Employees’ Compensation, U. S. Department of Labor, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-5829.
    Noroian et al. v. California et al.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 75-5834.
    Harmon v. Hodge.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 75-5846.
    Sellars v. Estelle, Corrections Director.
   Certiorari before judgment to C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5852.
    Randall v. Metheny et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5856.
    Brooks v. Bay State Abrasive Products, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5859.
    Patterson v. Busbee, Governor of Georgia, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 75-5862.
    Hoffman v. Georgetown University Hospital Corp.
   Ct. App. D. C. Certiorari denied.


text:
    No. 75-5864.
    Rudman v. Stone, Correctional Superintendent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 75-5865.
    Sanders v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 75-5872.
    Ford v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 75-5874.
    Wilkins v. Williams, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 75-5885.
    Tabasso v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 73-2005.
    United States et al. v. Rambo.
   C. A. 6th Cir. Certiorari denied.

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


text:
    No. 74-722.
    United States et al. v. Clark et al.
   C. A. 5th Cir. Certiorari denied.

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


text:
    No. 74-6568.
    Mauricio v. McAdams, Warden.
   C. A. 5th Cir. Certiorari denied.

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


text:
    No. 75-785.
    Manta et al. v. Tryforos et al.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 75-863.
    Chicago Rawhide Manufacturing Co. v. Crane Packing Co.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 75-5990.
    Lipsman v. Giardino.
   C. A. 2d Cir. Application for stay, presented to Mr. Justice Brennan, and by him referred to the Court, denied. Certiorari denied.


text:
    No. 75-139.
    No. 75-406.
    No. 75-415.
    No. 75-5154.
    No. 75-5348.
    No. 75-5587.
    No. 75-5666.
    No. 75-5671.
    Rose, Warden v. Hodges et al., Wunnicke et al. v. United States, Portland Cement Assn. v. Train, Administrator, Environmental Protection Agency, et al., Sam v. Mississippi, Lazur v. Broad Mountain Club, Inc., Heckstall v. District of Columbia, Harris v. New York, McLaughlin v. Vinzant, Correctional Superintendent,
   ante, p. 19;

ante, p. 1033;

ante, p. 1025;

ante, p. 1018;

anté, p. 1020;

ante, p. 1023;

ante, p. 1036; and

ante, p. 1037. Petitions for rehearing denied.

Mr. Justice Stevens took no part in the consideration or decision of these petitions.


author: Mr. Justice Rehnquist, Circuit Justice.

text:
    HORTONVILLE JOINT SCHOOL DISTRICT NO. 1 et al. v. HORTONVILLE EDUCATION ASSOCIATION et al.
    No. A-133 (74-1606).
    Decided August 18, 1975
    See: 6 Wis. 2d 469, 225 N. W. 2d 658.
   Mr. Justice Rehnquist, Circuit Justice.

If the judgment of the Supreme Court of Wisconsin were plainly a “final judgment” for purposes of 28 U. S. C. § 1257, and if it plainly rested solely upon a construction of the Fourteenth Amendment to the United States Constitution, I would be inclined to grant the stay requested by the applicant School Board. I think that none of our cases requires the conclusion, reached by the Wisconsin court, that a school board may not be allowed to dismiss teachers whom it employs because it is not the sort of impartial decisionmaker required by due process of law. If this matter were before me on the petition for certiorari where I would be casting my vote as a Member of the Court, I would conclude that the judgment of the Supreme Court of Wisconsin did rest solely upon the Fourteenth Amendment. But in my capacity as Circuit Justice, where I act “as a surrogate for the entire Court,” Holtzman v. Schlesinger, 414 U. S. 1304, 1313 (1973) (Marshall, J., in chambers), doubts as to whether the judgment may not rest also upon a construction of the Wisconsin Constitution, and as to the finality of the judgment,' lead me to deny the application.


author: Mr. Justice Douglas, Circuit Justice.

text:
    SMITH et al. v. UNITED STATES et al.
    No. A-230.
    Decided September 11, 1975
   Mr. Justice Douglas, Circuit Justice.

Substantial questions may be raised under both the Federal Rules of Criminal Procedure and the Constitution whenever an order is made requiring that the files and records of a federal grand jury be turned over to a state prosecutor. Such an order was entered in this case by the District Court. The Court of Appeals for the Ninth Circuit denied a motion to stay the order pending appeal; however, a motions panel of that court granted an emergency stay so that the matter might be presented to me. I have now heard oral argument in Yakima, Wash., and I have concluded that I should issue the stay.

In 1973 and 1974 a federal grand jury in the Southern District of California conducted a lengthy investigation into the affairs of United States National Bank. This investigation resulted in multicount indictments against both applicants. On June 12, 1975, the federal case was concluded when applicants entered' pleas of nolo con-tendere and were sentenced. On August 7, the District Attorney for San Diego County filed a motion in Federal District Court seeking the files and records of the grand jury. That motion, which was opposed by the applicants, has led to the present proceeding.

In a long line of cases the Supreme Court has reaffirmed the “long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts,” United States v. Procter & Gamble Co., 356 U. S. 677, 681 (1958). See, e. g., Dennis v. United States, 384 U. S. 855 (1966); Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395 (1959). Although the Court has affirmed the power of district courts under Fed. Rule Crim. Proc. 6 (e) to order disclosure of evidence presented to grand juries, that Rule has been interpreted to require a showing of “particularized need” or “compelling necessity.” See, e. g., Pittsburgh Plate Glass Co., supra, at 400. It is a substantial question whether the need cited by the state prosecutor in this case is great enough to justify breach of the grand jury’s deliberations. The state prosecutor contends, first, that the grand jury materials will save the State substantial investigatory and prosecutorial resources and, second, that the materials will be generally useful in refreshing the memories of witnesses who appeared before the grand jury. However, it is doubtful whether either of these reasons — which will always be present whenever a State conducts an investigation following a similar one by a federal grand jury — meets the “compelling necessity” standard of Rule 6 (e).

The prosecutor also points out that the California statute of limitations, which is three years for most felonies, see Cal. Penal Code § 800 (1970 and Supp. 1975), will bar prosecution of applicants sometime in 1976. The collapse of United States National Bank, and presumably the termination of any crimes that applicants may have committed, occurred on October 18, 1973. The prosecutor thus argues that the imminent running of the statute of limitations justifies the turnover order. The collapse of the bank, however, and the initiation of the federal investigation were well publicized. Yet the prosecutor chose to do nothing. Surely a state prosecutor may not demonstrate “compelling necessity” by a state of affairs that his own tardiness has brought about.

Finally, there is a serious question whether applicants can be prosecuted at all under California law. California Penal Code § 656 (1970) forbids prosecution for “act[s] or omission [s]” for which the accused has already stood trial under the laws of “another State, Government, or country.” See also Cal. Penal Code §§ 793, 794 (1970). The California Supreme Court has held that a previous federal prosecution acts as a bar, under § 656, to subsequent state prosecution. People v. Belcher, 11 Cal. 3d 91, 520 P. 2d 385 (1974). It seems likely that a plea of nolo contendere would be considered the same for § 656 purposes as a plea of guilty. See, e. g., North Carolina v. Alford, 400 U. S. 25, 35, and n. 8 (1970). Moreover, the state prosecutor, in his declaration to the District Court, virtually conceded that the California crimes that applicants may have committed are state equivalents to the federal crimes charged in the federal indictment. It is a serious question whether prosecution would thus be based upon the same “act or omission” as the crimes upon which applicants pleaded nolo contendere and would thereby be barred under § 656. A substantial question arises whether the requisite showing of need under Rule 6 (e) is satisfied when a state prosecution cannot, under state law, result in conviction.

If the moving parties had been witnesses before the federal grand jury, serious questions involving the Self-Incrimination Clause of the Fifth Amendment would be involved. No such issue is presented here as to applicants, because they did not testify before the grand jury. Other persons, however, who testified before the grand jury, were granted immunity. Immunity once granted in a federal proceeding may not be nullified by a turnover order obtained by a state prosecutor. Murphy v. Waterfront Comm’n, 378 U. S. 52 (1964).

The District Court, moreover, might have granted motions to suppress evidence that had been obtained by the grand jury, and if that occurred, it is difficult to see how motions that were won before, the District Court can be lost at the instance of the state prosecutor. This Court has held that a witness before a grand jury may not refuse to answer questions on the ground that they are based upon evidence obtained in violation of the Fourth Amendment. United States v. Calandra, 414 U. S. 338 (1974). However, from the fact that a grand jury may use illegally seized evidence, it does not follow that the evidence may in turn be given to a state prosecutor. Calandra was based upon the marginal deterrent value that application of the exclusionary rule to grand jury proceedings would have upon illegal police activity. Id., at 351. In addition, the Court found that application of the exclusionary, rule would hinder and disrupt grand jury proceedings. Id., at 349. Neither of those reasons has much force in this case. First, there are no grand jury proceedings to disrupt. Second, a turnover of illegally seized evidence may undermine the deterrent effect of the exclusionary rule to a greater extent than contemplated in Calandra. Finally, Calandra cannot be read as approving illegal seizures of evidence. The only question before the Court was whether a potentially disruptive challenge to the seizure of evidence would lie during grand jury proceedings. After a trial court has ruled that evidence was, in fact, the product of unconstitutional police activity, there is no excuse for the continued use of the evidence. There apparently is such a question of illegally seized evidence in this case, although the record before me does not show precisely what the evidence suppressed was and how relevant it might be to the state as well as to the federal charges. It would seem to be a substantial question whether a turnover order should include such evidence.

Double jeopardy might also preclude state prosecution. That kind of objection may, in time, be resolved upon an appropriate motion before state tribunals. I mention the matter because the Double Jeopardy Clause of the Fifth Amendment was held applicable to the States in Benton v. Maryland, 395 U. S. 784 (1969). Benton may cast doubt upon the continuing vitality of Bartkus v. Illinois, 359 U. S. 121 (1959), which found that successive state and federal prosecutions upon substantially similar charges do not violate the Double Jeopardy Clause.. See also Abbate v. United States, 359 U. S. 187 (1959).

It was suggested at oral argument that applicants’ lawless actions can be curbed only by denying them legal refuge. Yet all constitutional guarantees extend both to rich and poor alike, to those with notorious reputations, as well as to those who are models of upright citizenship. No regime under the rule of law could comport with constitutional standards that drew such distinctions.

I do not, of course, pass on the merits of the turnover order, which is presently before the Court of Appeals. Yet these questions seem to me to be so substantial that I have decided to issue the stay. It will remain in effect until the Court of Appeals decides the merits.

      It was suggested that applicants should seek relief from any oppressive aspects of the turnover order by appropriate motions in the state courts. It seems apparent, however, that even a cursory examination of the federal grand jury materials would likely give the state prosecutor “leads” to information that would result in a permanent loss to applicants of the value of the secrecy of the grand jury proceedings.


text:
    CHAMBER OF COMMERCE OF THE UNITED STATES v. LEGAL AID SOCIETY OF ALAMEDA COUNTY et al.
    No. A-233.
    Decided September 29, 1975
   Mr. Justice Douglas, Circuit Justice.

This application for stay of the discovery order by the District Court seemed to me, when I studied it at Goose Prairie, Wash., to present a series of very important and new questions under the Freedom of Information Act, 5 U. S. C. § 552, for which guidelines would be desirable. Thus I was initially disposed to issue the stay so that in due course new guidelines could be established. But the questions presented involved so many complexities that I felt the application should be put down for oral argument so that all parties could be heard.

The Legal Aid Society of Alameda County, Cal., is suing various federal officials in Federal District Court, seeking mandamus to remedy alleged noncompliance with Executive Order No. 11246, 30 Fed. Reg. 12319 (1965), as amended, 3 CFR 169 (1964). That Order requires employers holding contracts with the Federal Government to ensure nondiscriminatory employment practices through affirmative-action programs. Applicant, the United States Chamber of Commerce, has been permitted by the District Court to intervene on behalf of various contractors with the Federal Government. Pursuant to a Legal Aid request, the District Court ordered disclosure by the General Services Administration (GSA) of information filed with it by the various contractors, Legal Aid Society v. Brennan, No. C-73-0282 (ND Cal., filed Mar. 26, 1975). The information comprises ethnic composition reports (EEO-1), affirmative-action program reports (AAP), and compliance review reports (CRR). Applicant's petition for a stay of the District Court’s discovery order was denied by the Ninth Circuit without opinion, Legal Aid Society v. Brennan, Civ. No. 75-1870 (filed Aug. 4, 1975), as was its petition for rehearing and suggestion for rehearing en banc, Legal Aid Society v. Brennan, supra (filed Sept. 2, 1975).

In the District Court’s opinion below, much is made of the policy of the Freedom of Information Act which requires access to official agency information. The GSA here is willing to disclose the requested information. But, as the District Court also observed: “[T]he production here sought is not pursuant to the Act, but part of a legitimate discovery effort by plaintiffs. . . . The only legitimate objections one could raise to preclude discovery are, under Fed. R. Civ. P. 26 (c), claims of privilege.”

While I agree with the District Court’s analysis of the posture of Legal Aid’s request for information, I part company with the court when it neglects consideration of the existence of a privilege against discovery protecting those whom the applicant represents. While the Freedom of Information Act creates no privileges, Verrazzano Trading Corp. v. United States, 349 F. Supp. 1401 (Cust. 1972), neither does it diminish those existing.

In my mind, a substantial question exists as to whether the parties represented by the applicant enjoy a privilege as to the information contained in the EEO-l’s, AAP’s, and CRR’s. The Equal Employment Opportunity Commission (EEOC) is authorized to obtain the information contained in these reports, under §§ 709 (c) and (d) of the Civil Rights Act of 1964, 78 Stat. 263, as amended, 42 U. S. C. §§ 2000e-8 (c) and (d) (1970 ed., Supp. III). However, § 709 (e) of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-8 (e), provides in part:

“It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information.”

Accordingly, information contained in the EEO-l’s, the AAP’s, and the CRR’s, which are prepared from the EEO-l’s, is arguably protected from disclosure by § 709 (e). See H. Kessler & Co. v. EEOC, 472 E. 2d 1147, 1152, 1153 (CA5 1973) (en banc) (majority and dissenting opinions).

To be sure, the information in the AAP’s and the EEO-l’s in this case was not obtained directly by the EEOC. Rather, the information was apparently collected by a Joint Reporting Committee of both the EEOC and the federal compliance agency (in this case, GSA) under Executive Order No. 11246. But the information in the EEO-l’s was obtained, in part, on behalf of the EEOC, see 41 CFR § 60-1.7 (a) (1), and much of the information contained in the AAP’s is essentially in the nature of that protected by § 709. Compare 41 CFR pt. 60-2 with 42 U. S. C. § 2000e-8 (c) (1970 ed., Supp. III). Indeed, certain policy considerations underlying the regulations precluding release by the GSA of information contained in the AAP’s are akin to those motivating the confidentiality implemented by § 709. Compare 41 CFR § 60-40.3 (a) (5) with H. Kessler & Co., supra, at 1150. In view of the foregoing, though some of the information involved here neither was obtained, nor is to be disclosed, by the EEOC, the congressional purpose of confidentiality, protected by criminal sanctions, is not to be lightly circumvented.

Despite these questions on the merits, there is the further question whether interim relief is necessary. Applicant will not suffer irreparable injury from disclosure of the documents because the District Court has entered a protective order permitting only attorneys for the Legal Aid Society to examine the assertedly privileged documents. Only one of the reasons advanced by the applicant may justify granting a stay despite the District Court’s protective order, and it is meritless. Applicant contends that disclosure of the materials will enable Legal Aid to compel the GSA, by litigation, to conduct reviews for compliance with Executive Order No. 11246. This in turn will result in ineligibility of the affected contractors for federal contracts pending GSA review, an asserted denial of due process because the affected contractors will have no opportunity to defend the adequacy of their affirmative-action programs in the litigation between the GSA and Legal Aid. Applicant also asserts that this denial of due process causes the contractors irreparable injury. Apart from other serious difficulties with this argument, it is enough to note that the claimed irreparable injury is far from imminent since the GSA has yet to indicate that it will undertake a compliance review and the District Court has entered no order to that effect. Since applicant fails to show any imminent harm, on further study and consideration, I have decided to deny the stay.


author: Mr. Justice Marshall, Circuit Justice.

text:
    WHALEN, COMMISSIONER OF HEALTH OF NEW YORK v. ROE et al.
    No. A-368.
    Decided October 28, 1975
    See: 403 F. Supp. 931.
   Mr. Justice Marshall, Circuit Justice.

This is an application for a stay of the judgment of a three-judge court sitting in the Southern District of New York. The applicant, the Commissioner of Health of the State of New York, has been enjoined by the three-judge court from enforcing certain provisions of New York’s Public Health Law (Law). Respondents are various physicians, organizations of physicians, and patients in the State of New York who successfully brought suit to have those provisions declared unconstitutional.

The provisions at stake are those parts of §§ 3331 (6), 3332 (2) (a), and 3334 (4) of the Law (Supp. 1974) that require the name and address of each patient receiving a Schedule II controlled substance to be reported to the applicant. Schedule II drugs are those that have a high potential for abuse, but also have an accepted medical use. They include opiates and amphetamines. Under the Law, a doctor prescribing a Schedule II drug does so on a special serially numbered triplicate prescription form. One copy is retained by the doctor, a second goes to the pharmacist (if applicable), and the last copy goes to the applicant, who transfers the data, including the name and address of the patient, from the prescription to a centralized computer file.

Respondents brought this action shortly after the effective date of the computerization program, alleging violations of their constitutional rights under 42 U. S. C. § 1983 and grounding jurisdiction on 28 U. S. C. § 1343 (3). Specifically, respondents claimed that mandatory disclosure of the name of a patient receiving Schedule II drugs violated the patient’s right of privacy and interfered with the doctor’s right to prescribe treatment for his patient solely on the basis of medical considerations. A three-judge court was convened. Roe v. Ingraham, 480 F. 2d 102 (CA2 1973).

At trial, various respondents testified that they were inhibited from using or prescribing Schedule II drugs they otherwise found beneficial because of a reluctance to disclose their or their patients’ identities to the State. While questioning respondents’ standing to sue, the applicant asserted that knowledge of patients’ names was necessary to enable the computer system to detect drug abuse. When put to its proof by respondents, however, the applicant eventually conceded that the names and addresses of patients were useful in detecting only one abuse: patients who go from doctor to doctor (using the same name on each visit) in order to obtain an excessive supply of drugs. Thereupon respondents showed that in 15 months of operation the computer system had located only one suspected “doctor-shopper” while processing over 125,000 prescriptions per month. Thus respondents contended that the centralization of patients’ names and addresses served no compelling state interest sufficient to offset the asserted invasion of privacy.

The three-judge court accepted respondents’ arguments. The court read our decisions in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), as placing the doctor-patient relationship among those zones of privacy accorded constitutional protection. While noting that Roe and Doe concerned the most intimate of personal relations, sexual intimacy and the decision to bear a child, the court refused to hold the doctor-patient relationship constitutionally protected only when matters of childbearing were at stake. Rather, it noted the intimate nature of a patient’s concern about his bodily ills and the medication he takes, and held that these matters, too, are protected by the constitutional right to privacy. While reaching this conclusion primarily on the basis of Roe and Doe, the court drew some support from the concurring and dissenting opinions in California Bankers Assn. v. Shultz, 416 U. S. 21, 78 (1974) (Powell, J., concurring); id., at 79 (Douglas, J., dissenting); id., at 91 (Brennan, J., dissenting); id., at 93 (Marshall, J., dissenting); which it read as indicating that a majority of this Court would accord constitutional protection, at least against a wholesale reporting requirement, to all “intimate areas of an individual’s personal affairs.” Id., at 78 (Powell, J., concurring). Upon finding that respondents had a protected privacy interest in the medication they received, the court balanced that interest against the State’s need for patients’ names, and concluded that, with one suspect uncovered over 15 months, the need shown was ephemeral. “The diminution of a constitutionally guaranteed freedom is too great a price to pay for such a small governmental yield.” Roe v. Ingraham, 403 F. Supp. 931, 937 (SDNY 1975) (footnote omitted).

Finding those portions of the Law that demanded disclosure of patients’ names and addresses to the State to be unconstitutional on the facts, the court enjoined the State from enforcing those provisions and from accepting for filing prescriptions or other documents disclosing the identities of patients receiving Schedule II drugs. The court also ordered the destruction of any name-bearing prescription forms in the State’s possession and the ex-pungement of names from all computer records. The court stayed the destruction and expungement order pending disposition of the case by this Court; it refused, however, to stay its declaration of unconstitutionality and its injunction against enforcement of the provisions and acceptance of incoming prescriptions.

Thus the application for stay now before me concerns only those matters the District Court refused to stay. The principles that govern a Circuit Justice’s in-chambers review of stay applications are well known. A single Justice will grant a stay only in extraordinary circumstances. Certainly the judgment of the lower court, which has considered the matter at length and close at hand, and has found against the applicant both on the merits and on the need for a stay, is presumptively correct. To prevail here the applicant must meet a heavy burden of showing not only that the judgment of the lower court was erroneous on the merits, but also that the applicant will suffer irreparable injury if the judgment is not stayed pending his appeal.

Mr. Justice Powell has succinctly stated the considerations pertinent to evaluating these two factors:

“As a threshold consideration, Justices of this Court have consistently required that there be a reasonable probability that four members of the Court will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction. See Mahan v. Howell, 404 U. S. 1201, 1202; Organized Village of Kake v. Egan, 80 S. Ct. 33, 4 L. Ed. 2d 34 (1959). Of equal importance in cases presented on direct appeal — where we lack the discretionary power to refuse to decide the merits — is the related question whether five Justices are likely to conclude that the case was erroneously decided below. Justices have also weighed heavily the fact that the lower court refused to stay its order pending appeal, indicating that it was not sufficiently persuaded of the existence of potentially irreparable harm as a result of enforcement of its judgment in the interim.” Graves v. Barnes, 405 U. S. 1201, 1203-1204 (1972) (Powell, J., in chambers).

See also Aberdeen & Rockfish R. Co. v. SCRAP, 409 U. S. 1207, 1218 (1972) (Burger, C. J., in chambers); Railway Express Agency v. United States, 82 S. Ct. 466, 468, 7 L. Ed. 2d 432, 434 (1962) (Harlan, J., in chambers) ; United Fuel Gas Co. v. Public Service Comm’n, 278 U. S. 322, 326 (1929).

Applying these standards to the application before me, I conclude a stay should not be granted. The three-judge court gave careful consideration to applicants motion for a stay and, indeed, granted one insofar as it deemed necessary to prevent irreparable harm to applicant’s interests. Applicant has shown nothing to persuade me the lower court erred. If applicant’s position is sustained on appeal, all the data it is precluded from processing by the District Court’s order will be readily available from the State’s doctors and pharmacists, who are required by law to retain the complete prescription form for five years. The information now denied the State’s computers can thus be located and tabulated at a later date. While the State may suffer delay in the complete implementation of its computerization program, delay alone is not, on these facts, irreparable injury.

I conclude that applicant would suffer no irreparable injury if a stay is denied. This conclusion necessarily decides the application and renders unnecessary consideration of the possibility, since this case involves an appeal as of right, that applicant will be able to convince five Justices to reverse the three-judge court. I do note, however, that the right to privacy is a sensitive and developing area of the law and that the three-judge court did not apply it in a manner plainly inconsistent with our decisions. Likewise, the court’s conclusion that respondents had standing seems in accord with the liberal standing decisions of this Court. Of course, this conclusion and my denial of a stay on the papers now before me are not to be taken as a reflection of my views on the merits of this case, or as an indication of the ultimate disposition of the case in this Court.

The application is denied.


author: Mr. Justice Blackmun, Circuit Justice.

text:
    NEBRASKA PRESS ASSN. et al. v. STUART, JUDGE
    No. A-426.
    Decided November 13, 1975
   Mr. Justice Blackmun, Circuit Justice.

This is an application for stay of an order of the District Court of Lincoln County, Neb., that restricts coverage by the media of details concerning alleged sexual assaults upon and murders of six members of a family in their home in Sutherland, Neb.; concerning the investigation and development of the case against the accused ; and concerning the forthcoming trial of the accused. The applicants are Nebraska newspaper publishers, national newswire services, media associations, a radio station, and employees of these entities.

The accused is the subject of a complaint filed in the County Court of Lincoln County, Neb., on October 19, 1975. The complaint was amended on October 22 and, as so amended, charged the accused with having perpetrated the assaults and murders on October 18. On October 21, the prosecution filed with the County Court a motion for a restrictive order. This motion alleged “a reasonable lik[e]lihood of prejudicial news which would make difficult, if not impossible, the impaneling of an impartial jury and tend to prevent a fair trial should the defendant be bound over to trial in the District Court if testimony of witnesses at the preliminary hearing is reported to the public.” The defense joined in the prosecution’s request, and. also moved that the preliminary hearing be closed to the public and the press.

Refusing the latter request, the County Court held an open preliminary hearing on October 22. On that day it bound the accused over to the District Court. It, however, did issue a protective order. The court found that there was “a reasonable likelihood of prejudicial news which would make difficult, if not impossible, the impaneling of an impartial jury.” The court then ordered that no party to the action, no attorney connected with the defense or prosecution, no judicial officer or employee, and no witness or “any other person present in Court” was to “release or authorize the release for public dissemination in any form or manner whatsoever any testimony given or evidence adduced during the preliminary hearing.” It went on to order that no “news media disseminate any information concerning this matter apart from the preliminary hearing other than as set forth in the Nebraska Bar-Press Guidelines for Disclosure and Reporting of Information Relating to Imminent or Pending Criminal Litigation.” Excepted, however, were (1) factual statements of the accused’s name, age, residence, occupation, and family status; (2) the circumstances of the arrest (time and place, identity of the arresting and investigating officers and agencies, and the length of the investigation); (3) the nature, substance and text of the charge; (4) quotations from, or any reference without comment to, public records or communications theretofore disseminated to the public; (5) the scheduling and result of any stage of the judicial proceeding held in open court; (6) a request for assistance in obtaining evidence; and (7) a request for assistance in obtaining the names of possible witnesses. The court also ordered that a copy of the preliminary hearing proceedings was to be made available to the public at the expiration of the order.

A copy of the Bar-Press Guidelines was attached to the court’s order and was incorporated in it by reference. In their preamble the Guidelines are described as a “voluntary code.” They speak of what is “generally” appropriate or inappropriate for the press to disclose or report. The identity of the defendant, and also the victim, may be reported, along with biographical information about them. The circumstances of the arrest may be disclosed, as may the evidence against the defendant, “if, in view of the time and other circumstances, such disclosure and reporting are not likely to interfere with a fair trial.” Confessions or other statements of the accused may not be disclosed, unless they have been made “to representatives of the news media or to the public.” Also barred from disclosure are opinions as to the guilt of the accused, predictions of the outcome of trial, results of examinations and tests, statements concerning the anticipated testimony of witnesses, and statements made in court but out of the presence of the jury “which, if reported, would likely interfere with a fair trial.” The media are instructed by the Guidelines that the reporting of an accused’s prior criminal record “should be considered very carefully” and “should generally be avoided.” Photographs are permissible provided they do not “deliberately pose a person in custody.”

The applicants forthwith applied to the District Court of Lincoln County for vacation of the County Court’s order. The defense, in turn, moved for continuation of the order and that all future proceedings in the case be closed. The respondent, as judge of the District Court, granted a motion by the applicants to intervene in the case. On October 27 he terminated the County Court’s order and substituted his own. By its order of that date the District Court found that “there is a clear and present danger that pre-trial publicity could impinge upon the defendant’s right to a fair trial.” It ordered that the pretrial publicity in the case be in accord with the above-mentioned Guidelines as “clarified by the court.” The clarification provisions were to the effect that the trial of the case commences when a jury is impaneled and that all reporting prior- to that event would be pretrial publicity; that it appeared that the defendant had made a statement or confession, “and it is inappropriate to report the existence of such statement or the contents of it”; that it appeared that the defendant may have made statements against interest to three named persons and may have left a note; that “the nature of such statements, or the fact that such statements were made, or the nature of the testimony of these witnesses with reference to such statements in the preliminary hearing will not be reported”; that the testimony of the pathologist witness “dealing with technical subjects, tests or investigations performed or the results thereof, or his opinions or conclusions as a result of such tests or investigations will not be reported”; that “the identity of the person or persons allegedly sexually assaulted or the details of any alleged assault by the defendant will not be reported”; that the “exact nature of the limitations of publicity as entered by this order will not be reported,” that is to say, “the fact of the entering of this order limiting pre-trial publicity and the adoption of the Bar-Press Guidelines may be reported, but specific reference to confessions, statements against interest, witnesses or type of evidence to which this order will apply will not be reported.”

The applicants then sought from the District Court a stay of its order. Not receiving relief there, they applied to the Supreme Court of Nebraska for an immediate stay and also for leave to commence an original action in the nature of mandamus and/or prohibition to vacate the District Court order of October 27. On November 4, counsel for the applicants was advised by the Clerk of the Supreme Court that under that court’s rules “all motions must be noticed for a day certain when the court is regularly in session,” and that the “next date for submission of such a matter will be Monday, December 1, 1975, and I suggest that your motion be noticed for that date.”

On November 5, the applicants, reciting that the “District Court and the Nebraska Supreme Court have declined to act on the requested relief,” filed with this Court, directed to me as Circuit Justice, the present application for stay of the order of the District Court in and for Lincoln County, Neb. Because of the obvious importance of the issue and the need for immediate action, and because of the apparent similarity of the facts to those that confronted Mr. Justice Powell as Circuit Justice, in the case of Times-Picayune Pub. Corp. v. Schulingkamp, 419 U. S. 1301 (1974), I asked for prompt responses. That request has been honored and responses respectively were received on November 10 and 11 from the Attorney General of Nebraska on behalf of the respondent judge, from the Lincoln County attorney on behalf of the State, and from counsel for the accused.

I was advised yesterday, however, that on November 10 the Supreme Court of Nebraska issued a per curiam statement reciting that the applicants have petitioned that court for leave to file their petition for a writ of mandamus or other appropriate relief with respect to the District Court order of October 27, and further reciting that during that court’s “consideration of the application and the request for stay of the order, we are reliably informed that the relators have filed with the Supreme Court of the United States an application or a request that that court act to accomplish the same purposes to be accomplished by their request to us to exercise our original jurisdiction,” and then providing:

“The existence of the two concurrent applications could put this court in the position of exercising parallel jurisdiction with the Supreme Court of the United States. We deem this inadvisable. Accordingly, the matter is continued until the Supreme Court of the United States has made known whether or not it will accept jurisdiction in the matter.”

The issue raised is one that centers upon cherished First and Fourteenth Amendment values. Just as Mr. Justice Powell observed in Times-Picayune, 419 U. S., at 1305, the case “presents a fundamental confrontation between the competing values of free press and fair trial, with significant public and private interests balanced on both sides.” The order in question obviously imposes significant prior restraints on media reporting. It therefore comes to me “ ‘bearing a heavy presumption against its constitutional validity.’ ” New York Times Co. v. United States, 403 U. S 713, 714 (1971). But we have also observed that the media may be prohibited from publishing information about trials if the restriction is “necessary to assure a defendant a fair trial before an impartial tribunal.” Branzburg v. Hayes, 408 U. S. 665, 685 (1972). See Times-Picayune Pub. Corp. v. Schulingkamp, 419 U. S., at 1307; Newspapers, Inc. v. Blackwell, 421 U. S. 997 (1975).

It is apparent, therefore, that if no action on the applicants’ application to the Supreme Court of Nebraska could be anticipated before December 1, as the above-described communication from that court’s clerk intimated, a definitive decision by the State’s highest court on an issue of profound constitutional implications, demanding immediate resolution, would be delayed for a period so long that the very day-by-day duration of that delay would constitute and aggravate a deprival of such constitutional rights, if any, that the applicants possess and may properly assert. Under those circumstances, I would not hesitate promptly to act.

It appears to me, however, from the Nebraska court’s per curiam statement that it was already considering the applicants’ application and request for stay that had been submitted to that tribunal. That court deferred decision, it says, because of the pendency of the similar application before me, and because it deemed inadvisable simultaneous consideration of the respective applications in Nebraska and here in Washington. Accordingly, the matter was “continued” until it was known whether I would act.

It is highly desirable, of course, that the issue, concerning, as it does, an order by a Nebraska state court, should be decided in the first instance by the Supreme Court of Nebraska, and that the pendency of the application before me should not be deemed to stultify that court in the performance of its appropriate constitutional duty. The application, after all, was submitted to me on the assumption that action by the Nebraska court would not be forthcoming until after a submission to be scheduled no earlier than December 1 and on the further assumption that the District Court’s order satisfied the requirements of 28 U. S. C. § 1257. On the expectation, which I think is now clear and appropriate for me to have, that the Supreme Court of Nebraska, forthwith and without delay will entertain the applicants’ application made to it, and will promptly decide it in the full consciousness that “time is of the essence,” I hereby give the Supreme Court of Nebraska that assurance it desired that, at least for the immediate present, I neither issue nor finally deny a stay on the papers before me. My inaction, of course, is without prejudice to the applicants to reapply to me should prompt action not be forthcoming.


text:
    NEBRASKA PRESS ASSN. et al. v. STUART, JUDGE
    No. A-426.
    Decided November 20, 1975
   Mr. Justice Blackmun, Circuit Justice.

An application for stay of the order dated October 27, 1975, of the District Court of Lincoln County, Neb., resulted in my issuance of an in-chambers opinion, as Circuit Justice, on November 13. In that opinion I indicated that the issue raised is one that centers upon cherished First and Fourteenth Amendment values; that the challenged state-court order obviously imposes significant prior restraints on media reporting; that it therefore came to me “ ‘bearing a heavy presumption against its constitutional validity/ ” New York Times Co. v. United States, 403 U. S. 713, 714 (1971); that if no action on the application to the Supreme Court of Nebraska could be anticipated before December 1, there would be a delay “for a period so long that the very day-by-day duration of that delay would constitute and aggravate a deprival of such constitutional rights, if any, that the applicants possess and may properly assert”; that, however, it was highly desirable that the issue should be decided in the first instance by the Supreme Court of Nebraska; and that “the pendency of the application before me should not be deemed to stultify that court in the performance of its appropriate constitutional duty.” I stated my expectation that the Supreme Court of Nebraska would entertain, “forthwith and without delay,” the application pending before it, and would “promptly decide it in the full consciousness that ‘time is of the essence/ ” I refrained from either issuing or finally denying a stay on the papers before me. That, however, was without prejudice to 'the applicants to reapply to me should prompt action not be forthcoming. The applicants have now renewed their application for a stay.

One full week has elapsed since my in-chambers opinion was filed. No action has been taken by the Supreme Court of Nebraska during that week. The clerk of that court has stated, however, that the applicants have been allowed to docket their original application by way of mandamus to stay the order of the District Court of Lincoln County, and that the matter is set for hearing before the Supreme Court of Nebraska on November 25.

Whether the Nebraska court will reach a definitive decision on November 25, or very shortly thereafter, I do not know. Obviously at least 12 days will have elapsed, without action, since the filing of my in-chambers opinion, and more than four weeks since the entry of the District Court’s restrictive order. I have concluded that this exceeds tolerable limits. Accordingly, subject to further order of this Court, and subject to such refining action as the Supreme Court of Nebraska may ultimately take on the application pending before it, I issue a partial stay.

A question is initially raised as to my power and jurisdiction to grant a stay. As a single Justice, I clearly have the authority to grant a stay of a state court’s “final judgment or decree” that is subject to review by this Court on writ of certiorari. 28 U. S. C. §§ 2101 (f) and 1257 (3). Respondents to the application for a stay have objected that there is no such “final judgment or decree” upon which I may act. The issue is not without difficulty, for the Supreme Court of Nebraska gives promise of reviewing the District Court’s decision, and in that sense the lower court’s judgment is not one of the State’s highest court, nor is its decision the final one in the matter. Where, however, a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment. The suppressed information grows older. Other events crowd upon it. To this extent, any First Amendment infringement that occurs with each passing day is irreparable. By deferring action until November 25, and possibly later, the Supreme Court of Nebraska has decided, and, so far as the intervening days are concerned, has finally decided, that this restraint on the media- will persist. In this sense, delay itself is a final decision. I need not now hold that in any area outside that of prior restraint on the press, such delay would warrant a stay or even be a violation of federal rights. Yet neither can I accept .that this Court, or any individual Justice thereof, is powerless to act upon the failure of a State’s highest court to lift what appears to be, at least in part, an unconstitutional restraint of the press. When a reasonable time in which to review the restraint has passed, as here, we may properly regard the state court as having finally decided that the restraint should remain in effect during the period of delay. I therefore conclude that I have jurisdiction to act upon that state-court decision.

I shall not repeat the facts of the case. They were set forth in my in-chambers opinion of November 13. Neither shall I pause again to elaborate on this Court’s acute sensitivity to the vital and conflicting interests that are at stake here. There is no easy accommodation of those interests, and it certainly is not a task that one prefers to take up without the benefit of the participation of all Members of the Court. Still, the likelihood of irreparable injury to First Amendment interests requires me to act. When such irreparable injury is threatened, and it appears that there is a significant possibility that this Court would grant plenary review and reverse, at least in part, the lower court’s decision, a stay may issue. Times-Picayune Pub. Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974). Taking this approach to the facts before me, I grant the requested stay to the following extent:

1. The most troublesome aspect of the District Court’s restrictive order is its wholesale incorporation of the Nebraska Bar-Press Guidelines for Disclosure and Reporting of Information Relating to Imminent or Pending Criminal Litigation. Without rehearsing the description of those Guidelines set forth in my prior opinion, it is evident that they constitute a “voluntary code” which was not intended to be mandatory. Indeed, the word “guidelines” itself so indicates. They are merely suggestive and, accordingly, are necessarily vague. To cite only one example, they state that the publication of an accused's criminal record “should be considered very carefully” and “should generally be avoided.” These phrases do not provide the substance of a permissible court order in the First Amendment area. If a member of the press is to go to jail for reporting news in violation of a court order, it is essential that he disobey a more definite and precise command than one that he consider his act “very carefully.” Other parts of the incorporated Guidelines are less vague and indefinite. I find them on the whole, however, sufficiently riddled with vague and indefinite admonitions — understandably so in view of the basic nature of “guidelines” — that I have concluded that the best and momentary course is to stay their mandatory and wholesale imposition in the present context. The state courts, nonetheless, are free forthwith to reimpose particular provisions included in the Guidelines so long as they are deemed pertinent to the facts of this particular case and so long as they are adequately specific and in keeping with the remainder of this order. That portion of the restrictive order that generally incorporates the Guidelines is hereby stayed.

2. No persuasive justification has been advanced for those parts of the restrictive order that prohibit the reporting of the details of the crimes, of the identities of the victims, or of the testimony of the pathologist at the preliminary hearing that was open to the public. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 487-497 (1975). These facts in themselves do not implicate a particular putative defendant. To be sure, the publication of the- facts may disturb the community in which the crimes took place and in which the accused, presumably, is to be tried.' And their public knowledge may serve to strengthen the resolve of citizens, when so informed, who will be the accused’s prospective jurors, that someone should be convicted for the offenses. But until the bare facts concerning the crimes are related to a particular accused, it does not seem to me that their being reported in the media irreparably infringes the accused’s right to a fair trial of the issue as to whether he was the one who committed the crimes. There is no necessary implication of the person, who has been named as the accused, in the facts suppressed by paragraphs 4 and 5 of the District Court’s restrictive order, and to that extent the order is hereby stayed.

3. At the same time I cannot, and do not, at least on an application for a stay and at this distance, impose a prohibition upon the Nebraska courts from placing any restrictions at all upon what the media may report prior to trial. Restraints of this kind are not necessarily and in all cases invalid. See Branzburg v. Hayes, 408 U. S. 665, 685 (1972); Times-Picayune Pub. Corp. v. Schulingkamp, 419 U. S., at 1307; Newspapers, Inc. v. Blackwell, 421 U. S. 997 (1975). I am particularly conscious of the fact that the District Court’s order applies only to the period prior to the impaneling, and presumably the sequestration, of a jury at the forthcoming trial. Most of our cases protecting the press from restrictions on what they may report concern the trial phase of the criminal prosecution, a time when the jurors and witnesses can be otherwise shielded from prejudicial publicity, and also a time when both sides are being heard. See, e. g., Craig v. Harney, 331 U. S. 367 (1947); Pennekamp v. Florida, 328 U. S. 331 (1946); Bridges v. California, 314 U. S. 252 (1941). Restrictions limited to pretrial publicity may delay media coverage — and, as I have said, delay itself may be impermissible — but at least they do no more than that.

I therefore conclude that certain facts that strongly implicate an accused may be restrained from publication by the media prior to his trial. A confession or statement against interest is the paradigm. See Rideau v. Louisiana, 373 U. S. 723 (1963); Irvin v. Dowd, 366 U. S. 717 (1961). A prospective juror who has read or heard of the confession or statement repeatedly in the news may well be unable to form an independent judgment as to guilt or innocence from the evidence adduced at trial. In the present case, there may be other facts that are strongly implicative of the accused, as, for example, those associated with the circumstances of his arrest. There also may be facts that are not necessarily implicative, but that are highly prejudicial, as, for example, facts associated with the accused’s criminal record, if he has one. Certain statements as to the accused’s guilt by those associated with the prosecution might also be prejudicial. There is no litmus paper test available. Yet some accommodation of the conflicting interests must be reached. The governing principle is that the press, in general, is to be free and unrestrained and that the facts are presumed to be in the public domain. The accused, and the prosecution if it joins him, bears the burden of showing that publicizing particular facts will irreparably impair the ability of those exposed to them to reach an independent and impartial judgment as to guilt. Of course, if a change of venue will not allow the selection of a jury that will have been beyond the reach of the expected publicity, that also is a factor.

4. Paragraph 6 of the restrictive order also prohibits disclosure of the “exact nature of the limitations” that it imposes on publicity. Since some of those limitations are hereby stayed, the restrictions on the reporting of those limitations are stayed to the same extent. Inasmuch as there is no point in prohibiting the reporting of a confession if it may be reported that one has been made but may not be spoken of, the provision in paragraph 6 that the restriction on reporting confessions may itself not be disclosed is not stayed.

5. To the extent, if any, that the District Court’s order prohibits the reporting of the pending application to the Supreme Court of Nebraska, and to the extent, if any, that the order prohibits the reporting of the facts of the filing of my in-chambers opinion of November 13, or of this opinion (other than those parts of the opinions that include facts properly suppressed), the restrictive order is also stayed.

6. Nothing herein affects those portions of the restrictive order governing the taking of photographs and other media activity in the Lincoln Qounty courthouse. Neither is it to be deemed as barring what the District Judge may impose by way of restriction on what the parties and officers of the court may say to any representative of the media.

The District Court and the Supreme Court of Nebraska obviously are closer than I am to the facts of the crimes, to the pressures that attend them, and to the consequences of community opinion that have arisen since the commission of the offenses. The Supreme Court of Nebraska, accordingly, is in a better position, to evaluate the details of the restrictive order. It may well conclude that other portions of that order are also to be stayed or vacated. I have touched only upon what appear to me to be the most obvious features that require resolution immediately and without one moment’s further delay.


text:
    PASADENA CITY BOARD OF EDUCATION et al. v. SPANGLER et al.
    No. A-538.
    Decided December 22, 1975
   Mr. Justice Rehnquist, Circuit Justice.

Applicants, members of the Pasadena City Board of Education, have presented to me as Circuit Justice a request to stay an order entered by the United States District Court for the Central District of California pending disposition of their appeal to the Court of Appeals for the Ninth Circuit. After two interim stays by single judges of the Court of Appeals, a panel of that court denied a further stay on December 2, 1975, but ordered expedited argument.

The District Court, in its ruling which applicants seek to stay, overturned applicants’ action in establishing one of two “fundamental schools” in the summer of 1975. It ruled that the burden was on applicants to prove that their action did not result in resegregation. Finding that applicants had not met this burden, the court enjoined the creation of the new school and ordered its students returned to their previously assigned classrooms. The result of the District Court’s order and the subsequent stay rulings of the Court of Appeals is that if I decline to stay the order there will be at least some disruption of the school system in the middle of a school year.

Ordinarily a stay application to a Circuit Justice on a matter currently before a court of appeals is rarely granted, and were it not for the fact that this Court on November 11, 1975, granted certiorari on a related petition of applicants, Pasadena City Board of Education v. Spangler, No. 75-164, ante, p. 945, I would deny this application. But one of the issues presented in No. 75-164, is whether “a unitary school system which has been in compliance with a school desegregation decree for four years remain [s] subject indefinitely to the control of the trial court which entered the decree.” In my opinion, should this Court reverse or significantly modify the conclusion of the Court of Appeals for the Ninth Circuit with respect to the above-quoted “question presented” in No. 75-164, there would be serious doubt as to the correctness of the order of the District Court which applicants now seek to stay.

Because under my analysis the critical event will not be the decision of the Court of Appeals on applicants’ presently pending appeal, but rather the disposition by this Court of No. 75-164, It Is Ordered that the order of the District Court in this case entered on October 8, 1975, is stayed pending disposition of No. 75-164 by this Court.

Application granted.