text:
    No. 78-5828.
    Sharp v. United States District Court for the Southern District of Ohio et al.
   C. A. 6th Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 78-5832.
    O’Neill et al. v. Walt Disney Productions.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-5866.
    Askew v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 78-5867.
    Jones v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-5874.
    Schermerhorn v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-5883.
    Ledesma v. Coleman, U. S. Circuit Judge, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5891.
    Hackney v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 78-5892.
    Cline v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-5894.
    Mann v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-5895.
    Harris v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5896.
    Davis v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-5898.
    Haddad v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-5900.
    Heydon v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-5905.
    McFarland v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-5911.
    Klein v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-5913.
    Wentland v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5920.
    Greene et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-5927.
    Gale v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 78-5934.
    Parsons v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-5935.
    Agurs v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-213.
    Auger, Warden v. Collins.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Mr. Justice Stevens.

text:
    No. 78-719.
    Reproductive Services, Inc. v. Walker, Judge.
   Sup. Ct. Tex. Certiorari denied for want of jurisdiction.

Mr. Justice Stevens.

On June 23, 1978, the Texas Supreme Court denied petitioner’s application for a writ of mandamus and dissolved its earlier order requiring discovery concerning certain patients of petitioner’s abortion clinic. On July 10, 1978, Mr. Justice Brennan stayed the order of the Texas Supreme Court. On July 17, 1978, Mr. Justice Brennan vacated that stay and filed an opinion, post, p. 1307, stating in part:

“The question sought to be raised by applicant— whether the names of abortion patients can be obtained by discovery for use in a civil suit against a person or clinic performing abortions where, as here, the parties have not agreed to a protective order to ensure the privacy of those patients — is a serious one. If this question were in fact presented by this case, I am of the view that four Members of this Court would vote to grant certiorari to hear it. However, this issue is not presented here. First, the order of the trial court challenged by applicant’s petition for mandamus did in fact provide that the names of applicant’s patients could be deleted. Second, the State of Texas has represented in its response in this Court that it is prepared to enter into a protective order which will ensure the privacy of all patients at applicant’s clinics. In light of the representations of the State of Texas, there is no irreparable injury to any patient’s privacy interests which would justify a stay of the order of the Supreme Court of Texas.
“Therefore, on express condition that the parties agree to a protective order ensuring the privacy of patients at applicant’s clinics, the stay I entered on July 10, 1978, in these proceedings is hereby dissolved. If such a protective order is not entered, applicant may resubmit a further stay application.” Post, at 1308-1309 (footnote omitted).

On August 21, 1978, Mr. Justice Brennan re-entered his stay because the parties had not satisfied the express condition identified in his opinion of July 17, 1978. Post, p. 1354.

On September 16, 1978, Mr. Justice Powell granted an extension of time, until October 30, 1978, in which to file a petition for writ of certiorari. The petition for a writ of certiorari was timely filed on October 30,1978.

Since the rationale for the Court’s jurisdictional holding is unclear, and since adequate reasons for denying certiorari as a matter of discretion are disclosed by Mr. Justice Brennan’s opinion of July 17, 1978, I would simply deny the petition without further explanation.


text:
    No. 78-855.
    Cohen v. Illinois Institute of Technology et al.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 78-5198.
    Hovila v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

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


text:
    No. 78-5571.
    Williams v. Ricketts, Warden.
   Sup. Ct. Ga. Certiorari denied.

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


text:
    No. 77-1464.
    No. 78-284.
    No. 78-296.
    No. 78-344.
    No. 78-648.
    No. 78-5014.
    No. 78-5180.
    Huch et al. v. United States, Lichtig v. United States, Salvucci v. Revere Racing Assn., Inc., et al., Union Pacific Railroad Co. v. Sheehan, City of San Antonio v. San Pedro North, Ltd., et al., Blankner v. Goodwin, Commissioner, New York State Division of Housing and Community Renewal, Johnson v. Alexander, Secretary of the Army, et al.;
   ante, p. 1007;

ante, p. 981;

ante, p. 1002;

ante, p. 89;

ante, p. 1004;

ante, p. 867; and

ante, p. 986. Petitions for rehearing denied.


text:
    No. 78-5539.
    No. 78-5611.
    Clifton v. California, Hindman v. Kelly et al.,
   ante, p. 989; and

ante, p. 1050. Petitions for rehearing denied.


text:
    No. 77-1388.
    Massachusetts v. White,
   ante, p. 280. Petition for rehearing denied.

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


text:
    February 1, 1979
    No. 77-1665.
    Bonanno v. United States.
   C. A. 9th Cir. [Certiorari granted, ante, p. 1045.] Writ of certiorari dismissed under this Court’s Rule 60.


author: Mr. Justice White.

text:
    NEW YORK TIMES CO. et al. v. JASCALEVICH
    No. A-38.
    Decided July 11, 1978
   Mr. Justice White.

Since Mr. Justice Brennan has disqualified himself in this matter, I have before me an application for stay of an order of the Supreme Court of New Jersey of July 6, 1978, which refused to stay and denied leave to appeal from an order of a state trial court refusing to quash a subpoena issued in the course of an ongoing criminal trial for murder. The order of the trial court, issued June 30, ordered the New York Times Co. and Myron Farber, a reporter for the New York Times, to produce certain documents covered by a subpoena served upon them in New York pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, N. J. Stat. Ann. §§ 2A:81-18 to 2A: 81-23 (West 1976). The subpoena was issued at the behest of the defendant in the New Jersey murder trial; and the documents, which were sought for the purpose of cross-examining prosecution witnesses, included statements, pictures, recordings, and notes of interviews with respect to witnesses for the defense or prosecution. The subpoena was challenged by applicants on the grounds that it was overbroad and sought irrelevant material and hence was illegal under state law; that it violated the state Reporter's Shield Law; and that it invaded rights of the reporter and the press protected by the First Amendment to the United States Constitution.

In denying the motion to quash and in ordering in camera inspection, the trial judge, having already certified that the documents sought were “necessary and material for the defendant in this criminal proceeding,” stated that when the materials had been produced for his inspection, he would afford applicants a full hearing on the issues, including the state-law issues of the scope of the subpoena and the materiality of the documents sought, as well as upon the claim under the state Shield Law.

I cannot with confidence predict that four Members of the Court would now vote to grant a petition for certiorari at this stage of the proceedings. Orders denying motions to quash subpoenas are not usually appealable in the federal court system, United States v. Nixon, 418 U. S. 683, 690-691 (1974) ; United States v. Ryan, 402 U. S. 530, 532 (1971); Cobbledick v. United States, 309 U. S. 323, 324-326 (1940); Alexander v. United States, 201 U. S. 117 (1906), and since leave to appeal was denied in this case it may be that such orders are not appealable in the New Jersey system. The applicants insist that, as a constitutional matter, the rule must be different where, as here, the subpoena runs against a reporter and the press, and that more basis for enforcing the subpoena must be shown than appears in this record. There is no present authority in this Court that a newsman need not produce documents material to the prosecution or defense of a criminal case, cf. Branzburg v. Hayes, 408 U. S. 665 (1972), or that the obligation to obey an otherwise valid subpoena served on a newsman is conditioned upon the showing of special circumstances. But if the Court is to address the issue tendered by applicants, it appears to me that it would prefer to do so at a later stage in these proceedings. The asserted federal issue might not survive the trial court’s in camera inspection should applicants prevail on any of their state-law issues. Nor, in light of the trial court’s evident views that the documents sought appear sufficiently material to warrant in camera inspection, do I perceive any irreparable injury to applicants’ rights that would warrant staying the enforcement of the subpoena at this juncture. Cf. United States v. Nixon, supra, at 714.

The application for stay is denied. Of course, applicants are free to seek relief from another Justice.


author: Mr. Justice Marshall.

text:
    NEW YORK TIMES CO. et al. v. JASCALEVICH
    No. A-38.
    Decided July 12, 1978
   Mr. Justice Marshall.

The New York Times and one of its journalists have applied to me for a stay of an order of the Supreme Court of New Jersey, issued July 6, 1978, pending the filing and disposition of applicants’ petition for certiorari. Mr. Justice White yesterday denied the application, and the pertinent facts are stated in his opinion. Ante, p. 1301. The principle issue that applicants intend to raise in their petition for certiorari is whether,

“when a motion to quash a subpoena duces tecum issued to the news media is made, the court before which such motion is returnable shall be required to make threshold determinations with respect to the facial invalidity of the subpoena, as well as preliminary rulings on materiality and privilege, prior to compelling the production of all subpoenaed materials.” Application 10 (emphasis in original).

The standards for issuance of a stay pending disposition of a petition for certiorari are well established. Applicants bear the burden of persuasion on two questions: whether there is “a balance of hardships in their favor”; and whether four Justices of this Court would likely vote to grant a writ of certiorari. Beame v. Friends of the Earth, 434 U. S. 1310, 1312-1314 (1977) (Marshall, J., in chambers). Their “burden is particularly heavy when, as here, a stay has been denied by the [lower courts],” id., at 1312, in this case including two appellate courts as well as the trial court. Here, moreover, a stay has been denied by another Justice of this Court.

I do not believe that applicants have met their burden. There are, of course, important and unresolved questions regarding the obligation of a newsperson to divulge confidential files and other material sought by the prosecution or defense in connection with criminal proceedings. It may well be, moreover, that forced disclosure of these materials, even to a judge for in camera inspection, will have a deleterious effect on the ability of the news media effectively to gather information in the public interest, as is alleged by applicants.

It does not follow, however, that applicants are entitled to a stay at this stage in the proceedings. It has been the rule in the federal courts for many years that

“one to whom a subpoena is directed may not appeal the denial of a motion to. quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey.” United States v. Ryan, 402 U. S. 530, 532 (1971), citing Cobbledick v. United States, 309 U. S. 323 (1940).

While this rule is based on a federal statute and is thus not directly applicable here, the policies underlying it are clearly relevant to resolution of this stay application. These policies include a desire to avoid “obstructing or impeding an ongoing judicial proceeding” and a corresponding interest in “hasten[ing] the ultimate termination of litigation.” United States v. Nixon, 418 U. S. 683, 690 (1974); see Cobbledick v. United States, supra, at 324-326. Such considerations cannot be ignored in evaluating the “balance of hardships” in this case and the likelihood that four Justices would vote to grant certiorari.

Applicants are seeking a stay and certiorari in the midst of an ongoing criminal trial. If a stay were granted, the trial might be interrupted to await this Court’s decision on the certiorari petition, or, if the trial proceeded to- conviction, reversal on appeal might result from the defendant’s inability to obtain evidence that he apparently considers vital to his defense. It is true, of course, that either of these undesirable outcomes might occur if applicants refuse to comply with the subpoena and are adjudicated in contempt. At that point, however, the judicial system would have done all that it could do to obtain the materials sought by the defense.

In light of these considerations, applicants are plainly not entitled to a stay at this time. This conclusion is buttressed by the fact that, if applicants do refuse to comply with the subpoena, they presumably will have an opportunity in subsequent contempt proceedings to raise the same arguments that they seek to raise here. This case, moreover, involves an order to turn materials over to a judge for in camera inspection ; whether the materials will eventually be released to the defense and the public is a matter yet to be litigated.

The application for a stay is denied.


author: Mr. Justice Brennan.

text:
    REPRODUCTIVE SERVICES, INC. v. WALKER, DISTRICT JUDGE
    No. A-1091.
    Decided July 17, 1978
   Mr. Justice Brennan.

I have before me an application to stay an order of the Supreme Court of Texas, which denied applicant’s motion for a writ of mandamus directed to respondent. The questions at issue here arise in a suit brought by Claudia E. Lott against applicant, which in essence charged applicant with medical malpractice in performing an abortion on Mrs. Lott. The complaint further charged applicant with violating the Texas Deceptive Trade Practices-Consumer Protection Act, Texas Bus. & Com. Code Ann. § 17.41 et seq. (Supp. 1977), in that applicant misrepresented the quality of care it was prepared to provide and failed to disclose material information regarding the risks involved in procedures used at applicant’s abortion clinics. The State of Texas was allowed to intervene in this action pursuant to the Deceptive Practices Act. Mrs. Lott and the State of Texas are the true parties in interest here.

Mrs. Lott caused a subpoena duces tecum to be issued against applicant. This subpoena sought the medical records of five named patients at applicant’s clinics and also sought the medical records of any other patient who had any major or serious complications arising from an abortion at applicant’s clinics or who had received certain medications. Applicant sought to quash this subpoena on the ground of invasion of its patients’ privacy. This motion was granted in part by the respondent trial judge, who ruled that the records must be turned over, but that patients’ names could be deleted. Applicant sought mandamus in the Supreme Court of Texas to overturn this order. Subsequently counsel for applicant, Mrs. Lott, and the State of Texas entered into a consent order and temporary injunction in which applicant agreed that on determination of applicant’s petition for mandamus the State could take discovery “on all names of all patients of [applicant’s] Clinics throughout the State and all records on the nature of the conditions shown in those records.”

The question sought to be raised by applicant — whether the names of abortion patients can be obtained by discovery for use in a civil suit against a person or clinic performing abortions where, as here, the parties have not agreed to a protective order to ensure the privacy of those patients — is a serious one. If this question were in fact presented by this case, I am of the view that four Members of this Court would vote to grant certiorari to hear it. However, this issue is not presented here. First, the order of the trial court challenged by applicant’s petition for mandamus did in fact provide that the names of applicant’s patients could be deleted. Second, the State of Texas has represented in its response in this Court that it is prepared to enter into a protective order which will ensure the privacy of all patients at applicant’s clinics. In light of the representations of the State of Texas, there is no irreparable injury to any patient’s privacy interests which would justify a stay of the order of the Supreme Court of Texas.

Therefore, on express condition that the parties agree to a protective order ensuring the privacy of patients at applicant’s clinics, the stay I entered on July 10,1978, in these proceedings is hereby dissolved. If such a protective order is not entered, applicant may resubmit a further stay application.

       This application was originally presented to Mr. Justice Powell as Circuit Justice and, in his absence, was referred to Mr. Justice Rehnquist, who denied the application.

       Applicant has styled its application as one for a stay pending petition for mandamus, but the appropriate avenue of relief would be by certiorari, and I so read the papers.


author: Mr. Justice Rehnquist, Circuit Justice.

text:
    FARE, ACTING CHIEF PROBATION OFFICER v. MICHAEL C.
    No. A-33.
    Decided July 28, 1978
    See: 21 Cal. 3d 471, 579 P. 2d 7.
   Mr. Justice Rehnquist, Circuit Justice.

Applicant requests a stay of enforcement of a judgment of the California Supreme Court ordering a rehearing for respondent under Cal. Welf. & Inst. Code Ann. § 602 (West Supp. 1978). The Superior Court of Los Angeles County had originally committed respondent to the California Youth Authority as a ward of the court after finding that he was guilty of murder. That committal was affirmed by the California Court of Appeal. On May 30, 1978, the California Supreme Court reversed, holding that a confession relied on by the Superior Court was inadmissible under Miranda v. Arizona, 384 U. S. 436 (1966). In re Michael C., 21 Cal. 3d 471, 579 P. 2d 7. It ruled that when a juvenile, during the course of a custodial interrogation, requests the presence of his probation officer, all interrogation must cease and any statement taken after that point is inadmissible at the adjudication hearing. I have decided to grant the stay so that the full Court can consider the applicant’s petition for cer-tiorari and the important Miranda questions that underlie it.

Three pertinent inquiries are usually made in evaluating a request for stay of enforcement of an order of a state court: whether that order is predicated on federal as opposed to state grounds; whether the “balance of equities” militates in favor of the relief requested by applicant; and whether it is likely that four Justices of this Court will vote to grant certiorari. Recognizing that the case for a stay is a relatively close one, I conclude that each of these questions must be answered in the affirmative.

The decision of the California Supreme Court is clearly premised on the Federal Constitution. It is posited as an extrapolation of Miranda and there are no references to state statutory or constitutional grounds. The California Supreme Court cases relied on were also efforts to determine the implications of Miranda and did not purport to construe the State Constitution. See People v. Burton, 6 Cal. 3d 375, 491 P. 2d 793 (1971); People v. Randall, 1 Cal. 3d 948, 464 P. 2d 114 (1970).

The “balance of equities” presents a more difficult question. Applicant argues that a stay is imperative, because a rehearing in Superior Court would preclude this Court’s review of the California Supreme Court’s decision. If on retrial the respondent is committed to the Youth Authority on the basis of evidence other than the confession, the instant controversy will be moot. On the other hand, should the Superior Court find the remaining evidence insufficient to order a committal, this prosecution would terminate and any effort by the State to appeal such a determination would be bound to raise serious if not insuperable difficulties under both California law and the Double Jeopardy Clause. See Miranda v. Arizona, supra, at 497-499, and n. 71.

The law enforcement efforts of the State of California will be substantially affected by the California Supreme Court’s decision. The ruling builds upon the Miranda prescription that “ [i] f the individual states that he wants an attorney, the interrogation must cease until an attorney is present,” 384 U. S., at 474; but it goes well beyond the express language of the Miranda decision. For example, the Supreme Court of California said in the course of its opinion here:

“Michael wanted and needed the advice of someone whom he knew and trusted. He therefore asked for his probation officer — a personal advisor who would understand his problems and needs and on whose advice the minor could rely. By analogy to [People v. Burton, 6 Cal. 3d 375, 491 P. 2d 793 (1971)], we hold that the minor’s request for his probation officer — essentially a 'call for help’ — indicated that the minor intended to assert his Fifth Amendment privilege. By so holding, we recognize the role of the probation officer as a trusted guardian figure who exercises the authority of the state as parens patriae and whose duty it is to implement the protective and rehabilitative powers of the juvenile court.
“Here ... we face conduct which, regardless of considerations of capacity, coercion or voluntariness, per se invokes the privilege against self-incrimination. Thus our question turns not on whether the defendant had the ability, capacity or willingness to give a knowledgeable waiver, and hence whether he acted voluntarily, but whether, when he called for his probation officer, he exercised his Fifth Amendment privilege. We hold that in doing so he no less invoked the protection against self-incrimination than if he asked for the presence of an attorney.” 21 Cal. 3d, at 476-477, 579 P. 2d, at 10-11.

The court explicitly eschewed a “totality of circumstances” analysis; respondent’s waiver of his Miranda rights, his experience in custodial settings, or any other factor that might bear on the voluntariness of his confession was simply irrelevant.

Although the California Supreme Court made some effort to limit its holding to probation officers, it is unclear what types of requests authorities must now regard as per se invocations of the Fifth and Fourteenth Amendment privilege against self-incrimination. Many relationships could be characterized as ones of trust and understanding; indeed, it seems to me that many of these would come to mind long before the probationer-probation officer relationship. In fact, under California law the probation officer is charged with the duty to file charges against a minor if he has any knowledge of an offense. Cal. Welf. & Inst. Code Ann. §§ 650, 652-655 (West Supp. 1978). Certainly that also encompasses a duty of reasonable investigation. It would be a breach of that duty for the probation officer to withhold information regarding an offense or advise a probationer that he should not cooperate with the police. These considerations troubled Justice Mosk, who noted in his separate concurrence in this case that “[w]here a conflict between the minor and the law arises, the probation officer can be neither neutral nor in the minor’s corner.” 21 Cal. 3d, at 479, 579 P. 2d, at 12. To treat a request for the presence of an enforcement officer as a per se invocation of the right to remain silent cannot but create serious confusion as to where the line is to be drawn in other custodial settings.

Respondent asserts that this injury is outweighed by the fact that a stay delays ultimate disposition of the charges against him, and that he has been in the custody of the Youth Authority for over two years. Obviously the weight of this argument depends on one’s view of the merits. If certiorari is granted in this case and a majority of this Court finds respondent’s confession admissible as a matter of federal constitutional law, then the original disposition order will not be disturbed and detention during deliberations in this Court will not exceed the time set in the original order.

Ultimately, therefore, my decision to stay enforcement of the California Supreme Court’s order must rest on my assessment of the likelihood that four Justices will vote to grant certiorari and that the applicant will prevail on the merits. This Court is tendered many opportunities by unsuccessful prosecutors and unsuccessful defendants to review rulings predicated on Miranda and related eases, and, as with many issues that recur in petitions before this Court, we decline most such tenders. But some pattern has developed in the handling of Miranda issues that, I think, portends a substantial likelihood of success for the instant petition.

Miranda v. Arizona was decided by a closely divided Court in 1966. While the rigidity of the prophylactic rules was a principal weakness in the view of dissenters and critics outside the Court, its supporters saw that rigidity as the strength of the decision. It afforded police and courts clear guidance on the manner in which to conduct a custodial investigation: if it was rigid, it was also precise. But this core virtue of Miranda would be eviscerated if the prophylactic rules were freely augmented by other courts under the guise of “interpreting” Miranda, particularly if their decisions evinced no principled limitations. Sensitive to this tension, and to the substantial burden which the original Miranda rules have placed on local law enforcement efforts, this Court has been consistently reluctant to extend Miranda or to extend in any way its strictures on law enforcement agencies. I think this reluctance is shown by our decisions reviewing state-court interpretations of Miranda. As we noted in Oregon v. Hass, 420 U. S. 714, 719 (1975), “a State may not impose . . . greater [Miranda] restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.” (Emphasis in original.)

In Michigan v. Tucker, 417 U. S. 433 (1974), we overturned a federal habeas ruling that all evidence proving to be the fruit of statements made without full Miranda warnings must be excluded at the subsequent state criminal trial. We overruled a State Supreme Court in Oregon v. Hass, supra; we held that a statement was admissible for purposes of impeachment even though it was given after the defendant indicated a desire to telephone an attorney. This Court has also recently rejected contentions that a confession was inadmissible after a reiterated Miranda warning if some hours earlier the defendant had indicated he did not want to discuss a different charge. Michigan v. Mosley, 423 U. S. 96 (1975). These are not to suggest that refusals to extend Miranda always please prosecutors, see Brown v. Illinois, 422 U. S. 590 (1975), or that this Court has shunned all logical developments of that opinion, see Doyle v. Ohio, 426 U. S. 610 (1976). But the overall thrust of these cases represents an effort to contain Miranda to the express terms and logic of the original opinion.

In our most recent pronouncement on the scope of Miranda, we found that the Oregon Supreme Court’s expansive definition of “custodial interrogation” read Miranda too broadly. Oregon v. Mathiason, 429 U. S. 492 (1977). Our reason for so ruling is probably best encapsulated in an observation we made in a similar context: “[S]uch an extension of the Miranda requirements would cut this Court’s holding in that case completely loose from its own explicitly stated rationale.” Beckwith v. United States, 425 U. S. 341, 345 (1976). I think the decision of the California Supreme Court also risks cutting Miranda loose from its doctrinal moorings. The special status given legal counsel in Miranda’s prophylactic rules is related to the traditional role of an attorney as expositor of legal rights and their proper invocation. He is also the principal bulwark between the individual and the state prosecutorial and adjudicative system. A probation officer simply does not have the same relationship to the accused and to the system that confronts the accused, and I believe this fact would lead four Justices of this Court to grant the State’s petition for certiorari in this case.

The request for stay of the judgment of the California Supreme Court pending consideration of a timely petition for certiorari by the applicant is accordingly granted, to remain in effect until disposition of the petition for certiorari. If the petition is granted, this stay is to remain in effect until this Court decides the case or until this Court otherwise orders.

      The California Court of Appeal suggested that if the confession were suppressed, there would be insufficient evidence in the record to sustain a finding of guilt. In re Michael C., 21 Cal. 3d 471, 481 n. 2, 579 P. 2d 7, 13 n. 2 (1978) (Clark, J., dissenting).


text:
    NEW YORK TIMES CO. et al. v. JASCALEVICH
    No. A-111.
    Decided August 1, 1978
   Mr. Justice White.

This is an application for a stay of an order of the Supreme Court of New Jersey refusing to stay, except temporarily to permit this application, an order of the Superior Court of New Jersey holding applicants in civil contempt for refusing to obey a subpoena for documents that was issued at the behest of the defendant in the course of an ongoing murder trial and that the Superior Court refused to quash. Applicant Farber, a reporter for the New York Times, a newspaper, was committed to jail until he complied with the subpoena by submitting the requested documents for in camera inspection by the trial judge; and the New York Times Co., the corporation owning and controlling the newspaper, was ordered to pay $5,000 for each day of noncompliance with the subpoena. Both applicants were also found guilty of criminal contempt. On appeal to the Superior Court of New Jersey, Appellate Division, that court stayed the convictions for criminal contempt but refused to stay the civil contempt judgment. It did expedite the appellate proceedings, which are still pending. The Supreme Court of New Jersey in turn refused to stay the Superior Court’s judgment and to take immediate jurisdiction of the appeal.

This application for stay, which then followed, was addressed to Mr. Justice Brennan, but upon his recusal was referred to me at 11 a. m. on July 28. Because the stay entered by the New Jersey Supreme Court would otherwise have expired an hour later, a temporary stay was entered to permit an examination of the somewhat voluminous papers filed in support of the application and to consider a response which was requested from respondent.

There is an initial question of the jurisdiction of an individual Justice or of the Court to enter a stay in circumstances such as these. Under 28 U. S. C. § 2101 (f), a stay is authorized only if the judgment sought to be stayed is final and is subject to review by the Supreme Court on writ of certiorari. Whether a state-court judgment is subject to review by the Supreme Court on writ of certiorari is in turn governed by 28 U. S. C. § 1257, which provides that we have jurisdiction to review “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had . . . Also, it is only final judgments with respect to issues of federal law that provide the basis for our appellate jurisdiction with respect to state-court cases.

Although an order, such as is involved in this case, refusing to quash a subpoena and directing compliance would ordinarily not satisfy the finality requirement, United States v. Nixon, 418 U. S. 683, 690-691 (1974), and cases cited, a criminal or civil contempt judgment imposed for refusing to obey the order presents a different consideration. At least where such judgments are entered against nonparty witnesses, such as the present applicants, the judgments are “final” for the purposes of appellate jurisdiction within the federal system. They are also final for purposes of this Court’s jurisdiction to review state-court judgments if they have been rendered by the highest court of the State in which decision could be had.

In this case, the New Jersey Superior Court entered civil and criminal contempt judgments against each of the applicants. Appeals from these judgments are pending in the Appellate Division. The criminal contempt judgments have been stayed; but both the Appellate Division and the New Jersey Supreme Court have refused to stay the judgments for civil contempt, and it is the civil judgment that is the object of the present stay application. Because the judgment for civil contempt remains under review in the New Jersey appellate courts, it would not appear to be a final judgment “rendered by the highest court of a State in which a decision could be had.” This was the case in Valenti v. Spector, 79 S. Ct. 7, 3 L. Ed. 2d 37 (1958), where Mr. Justice Harlan, as Circuit Justice, was asked to stay an order committing applicants to jail for contumacious refusal to answer certain questions. He denied the applications “for lack of jurisdiction, and, in any event, in the exercise of my discretion,” saying among other things:

“. . . The federal questions sought to be presented going to the validity of these commitments are prematurely raised here, since none of them has yet been passed upon by the highest court of the State in which review could be had. See 28 U. S. C. § 1257. . . . The appeals of petitioners Valenti, Riccobono, Mancuso and Castellano are still pending undetermined in the state Appellate Division. The direct appeal of petitioner Miranda to the state Court of Appeals also stands undetermined.” Id., at 8, 3 L. Ed. 2d, at 39.

The rule would appear to be, as Mr. Justice Goldberg observed: “Of course, no stay should be granted pending an appeal which would not lie.” Rosenblatt v. American Cyanamid Co., 86 S. Ct. 1, 3, 15 L. Ed. 2d 39, 42 (1965) (in chambers).

Applicants insist, however, that the refusal to stay the civil contempt judgments brings the case within 28 U. S. C. §§ 1257 and 2101 (f) because (1) if the applicants comply with the order, they forfeit the very First Amendment right which they claim, that is, the right to refuse to turn over to a court what they consider to be the confidential files of the reporter, at least until the court demanding them has provided further justification for its order than it has to this date; and (2) if applicants do not comply, they will suffer continuing and irreparable penalties for exercising their claimed First Amendment rights.

Applicants are not without some support for their position. In Nebraska Press Assn. v. Stuart, 423 U. S. 1327 (1975) (Blackmun, J., in chambers), a state trial court had entered an order prohibiting the publication of certain information about a pending criminal case. The order was not stayed pending appeal to the Nebraska Supreme Court. After initially refusing a stay, 423 U. S. 1319 (1975), Mr. Justice Blackmun concluded that the delay in the Nebraska courts “exceed[ed] tolerable limits” and entered a partial stay. He recognized that in a meaningful 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,” 423 U. S., at 1329; but he reasoned that a partial stay should be entered anyway:

“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.” Id., at 1329-1330.

It should also be noted that the Court later found it unnecessary to decide whether the stay had been properly entered, Nebraska Press Assn. v. Stuart, 423 U. S. 1010 (1975), but that in deciding the merits of the controversy, the Court referred to Me. Justice Blackmun’s “careful decision” with respect to the stay issue, Nebraska Press Assn. v. Stuart, 427 U. S. 539, 544 n. 2 (1976).

Of course, Mr. Justice Blackmun partially stayed an order imposing a prior restraint upon the press, and this is not a prior-restraint case. Farber has been jailed and the company has been fined until they comply with the court’s order, but it is doubtful, to say the least, that a state court’s refusal to grant bail or to stay a criminal judgment pending appeal in the state courts automatically transforms the judgment into a case reviewable here on the merits and hence subject to a stay order under § 2101 (f) by the Court or by an individual Justice. I am nevertheless inclined to think that the question of our jurisdiction is not frivolous and is sufficiently substantial that the Court and an individual Justice necessarily have power to issue a stay pending a final determination of the jurisdictional issue — and should enter such a stay if there are otherwise adequate grounds for doing so.

Proceeding on this basis, then, I conclude that the application for stay should be denied. There is no present authority in this Court either that newsmen are constitutionally privileged to withhold duly subpoenaed documents material to the prosecution or defense of a criminal case or that a defendant seeking the subpoena must show extraordinary circumstances before enforcement against newsmen will be had. Cf. Branzburg v. Hayes, 408 U. S. 665 (1972); see Zurcher v. Stanford Daily, 436 U. S. 547, 566-567 (1978). But even if four or more Members of the Court would hold that a reporter’s obligation to comply with the subpoena is subject to some special showing of materiality not applicable in the case of ordinary third-party witnesses, I would not think that they would accept review of this case at this time. The order at issue directs submission of the documents and other materials for only an in camera inspection; it anticipates a full hearing on all issues of federal and state law; and it is based on the trial court's evident views that the documents sought are sufficiently material to warrant at least an in camera inspection.

In United States v. Nixon, 418 U. S. 683 (1974), we recognized a constitutionally based privilege protecting Presidential communications in the exercise of Art. II powers, but we held that there had been a sufficient initial showing of materiality to warrant requiring the President to submit the subpoenaed documents for in camera examination. Here, the Superior Court has twice issued a certificate under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, N. J. Stat. Ann. §§ 2A: 81-18 to 2A:81-23 (West 1976), declaring that the documents sought “are necessary and material” for the defendant on trial for murder in the New Jersey courts. In the first certificate the court declared that the materials, sought

“contain statements, pictures, memoranda, recordings and notes of interviews of witnesses for the defense and prosecution in the above proceeding as well as information delivered to the Bergen County Prosecutor’s Office, and contractual information relating to the above. Specifically, the documents include a statement given to Mr. Parber by Lee Henderson of Whitmere, South Carolina and other witnesses and notes, memoranda, recordings, pictures and other writings in the possession, custody or control of The New York Times and/or Myron Parber.”

On the second occasion, the court certified:

“. . . That I have reviewed the petition of Raymond A. Brown and find, inter alia, that substantial constitutional rights of Dr. Jascalevich to a fair trial, compulsory process and due process of law are in jeopardy without the appearance of Myron Farber and the documents so that an in camera examination can be made.
“. . . That this certificate is made with the full awareness of the totality of the proceeding before the Court— pre-trial, in the presence of the jury and outside the presence of the jury — which are hereby referenced. These include the testimony of: Myron Farber, Dr. Baden, Mr. Herman Fuhr, Judge Galda, Judge Calissi, Mr. Herman Fuhr [sic], Mr. John Fischer, Detective Lange, Mr. Joseph Woodcock, and the proceedings regarding Myron Farber and the New York Times.”

These determinations were made by a trial judge after sitting through some 22 weeks of a criminal trial and based, among other grounds, on a defendant's right to call witnesses for his defense, which includes the right to secure witnesses and materials for the purpose of impeaching the witnesses against him. Cf. Davis v. Alaska, 415 U. S. 308 (1974). Furthermore, these conclusions have not been disturbed by the New Jersey appellate courts, each of which has refused to stay the order for in camera inspection as well as the ensuing civil contempt judgments. In my view, the proceedings to date satisfy whatever preconditions to the enforcement of the subpoena that may be applicable in this case.

On this record, I would not vote to grant certiorari and am unconvinced that four other Justices would do so. It also appears to me, as it did on the earlier application for stay, that in camera inspection of these documents by the court will not result in any irreparable injury to applicants’ claimed, but unadjudicated, rights that would warrant staying the enforcement of the subpoena at this time, with its consequent impact on a state criminal trial. It should also be noted that applicants’ resistance to the subpoena and the order rest on state law as well as federal grounds; that the Superior Court deems inspection necessary to inspect the documents in connection with ruling on the state claims including the claim of protection under the state “Shield” statute; and that if applicants prevail on those grounds, it will be unnecessary to deal with whatever federal constitutional grounds might also be urged.

For these reasons, I decline to grant the application for stay pending the filing of a petition for certiorari, and the temporary stay I have entered will expire at 12 noon tomorrow, August 2, 1978.

       Judge Arnold informed applicants that he would not rule on the merits of their motion to quash until he had the opportunity to examine the documents in camera. He then ordered the production of the documents for his inspection. Applicants unsuccessfully appealed through the New Jersey system seeking a stay of Judge Arnold’s order. They then took their application to two individual Justices of this Court, both of whom denied relief. Ante, p. 1301 (White, J., in chambers); ante, p. 1304 (Marshall, J., in chambers).

       “In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certio-rari from the Supreme Court. The stay may be granted by a judge of the court rendering the judgment or decree or by a justice of the Supreme Court, and may be conditioned on the giving of security, approved by such judge or justice, that if the aggrieved party fails to make application for such writ within the period allowed therefor, or fails to obtain an order granting his application, or fails to make his plea good in the Supreme Court, he shall answer for all damages and costs which the other party may sustain by reason of the stay.”

        Nelson v. United States, 201 U. S. 92, 97-98 (1906); Bessette v. W. B. Conkey Co., 194 U. S. 324, 337-338 (1904); United States v. Reynolds, 449 F. 2d 1347 (CA9 1971); In re Vericker, 446 F. 2d 244 (CA2 1971); In re Manufacturers Trading Corp., 194 F. 2d 948, 955 (CA6 1952); see Doyle v. London Guarantee Co., 204 U. S. 599, 605 (1907); cf. Nye v. United States, 313 U. S. 33 (1941); Fox v. Capital Co., 299 U. S. 105, 107 (1936); Alexander v. United States, 201 U. S. 117, 121 (1906). See generally 9 J. Moore, Federal Practice ¶ 110.13 [4], p. 166 (1975).


text:
    TRUONG DINH HUNG v. UNITED STATES
    No. A-73.
    Decided August 4, 1978
   Mr. Justice Brennan.

This is an application for bail pending appeal to the Court of Appeals for the Fourth Circuit from the conviction of applicant on May 19, 1978, following a jury trial in the United States District Court for the Eastern District of Virginia, of conspiracy to commit espionage (Count 1); conspiracy to violate laws prohibiting the unlawful conversion of Government property and the communication of classified information to a foreign agent (Count 2); espionage (Count 3); theft of Government property (Count 5); acting as a foreign agent without registration (Count 6); and unlawful transmission of defense information (Count 7). Applicant was sentenced to 15 years’ imprisonment on Counts 1 and 3, 2 years’ imprisonment on Count 2, and 5 years’ imprisonment on Counts 5, 6, and 7, all sentences to be served concurrently.

The District Court admitted applicant to bail prior to trial in the amount of $250,000, but immediately after applicant’s conviction revoked the bail pursuant to 18 U. S. C. § 3148, stating three reasons: (1) the substantial evidence of guilt; (2) the seriousness of the crimes and the length of the potential sentences; and (3) the risk of flight, given the severity of the potential sentences and the fact that applicant was not an American citizen. The Court of Appeals in an unreported opinion sustained the revocation, stating:

“The defendant is a Vietnamese citizen. The charge upon which he was convicted involved the receipt and transmission of classified information to the Vietnamese Ambassador in Paris. The defendant has not established a permanent residence in this country, and, should he flee to Vietnam, the United States would have no means to procure his return for the imposition of sentence or for sentence service.
“Under the circumstances, we find no abuse of discretion of the district judge in denying the defendant bail pending appeal.”

See Application for Release Upon Reasonable Bail, Exhibit A, p. 2.

Applicant’s appeal presents, inter alia, an important question heretofore specifically reserved by this Court in United States v. United States District Court, 407 U. S. 297 (1972), namely, “the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.” Id., at 308. There is a difference of view among the Courts of Appeals on this question. Compare Zweibon v. Mitchell, 170 U. S. App. D. C. 1, 58, 516 F. 2d 594, 651 (1975) (en banc), with United States v. Butenko, 494 F. 2d 593, 605 (CA3 1974) (en banc). See also Katz v. United States, 389 U. S. 347, 359 (1967) (Douglas, J., concurring); id., at 362 (White, J., concurring). The question arises in this case because of applicant’s challenge to the admission of evidence obtained from a wiretap placed in applicant’s apartment over a period of approximately three months without prior judicial warrant. As phrased in the application: “The court of appeals . . . will be asked to rule upon the government’s claim of power to conduct lengthy warrantless surveillance of domestic premises, in light not only of the fourth amendment but of the express authorization of 18 U. S. C. § 2516 (l)(a) for the use of warrants in espionage cases.”

The uncertainty of the ultimate answer to this important constitutional question is not of itself, however, sufficient reason to continue applicant’s bail. Section 3148 expressly authorizes the detention of a convicted person pending appeal when “risk of flight ... is believed to exist.” It was the risk “[u]nder the circumstances” upon which the Court of Appeals rested its conclusion that “we find no abuse of discretion of the district judge in denying the defendant bail pending appeal.” This judgment is entitled to “great deference.” Harris v. United States, 404 U. S. 1232 (1971) (Douglas, J., in chambers). Nevertheless, “where the reasons for the action below clearly appear, a Circuit Justice has a non-delegable responsibility to make an independent determination of the merits of the application.” Reynolds v. United States, 80 S. Ct. 30, 32, 4 L. Ed. 2d 46, 48 (1959) (Douglas, J., in chambers). See Mecom v. United States, 434 U. S. 1340, 1341 (1977) (Powell, J., in chambers). The question for my “independent determination” is thus whether the evidence justified the courts below in reasonably believing that there is a risk of applicant’s flight. In making that determination, I am mindful that “[t]he command of the Eighth Amendment that ‘[e]xcessive bail shall not be required at the very least obligates judges passing upon the right to bail to deny such relief only for the strongest of reasons.” Sellers v. United States, 89 S. Ct. 36, 38, 21 L. Ed. 2d 64, 66 (1968) (Black, J., in chambers).

Given this constitutional dimension, I have concluded that the reasons relied upon by the courts below do not constitute sufficient “reason to believe that no one or more conditions of release will reasonably assure” that applicant will not flee. The evidence referred to by the Court of Appeals is that applicant maintained contact with the Vietnamese Ambassador in Paris; that he has not established a permanent residence in this country; and that, should applicant flee to Vietnam, the United States would have no means to procure his return. But if these considerations suggest opportunities for flight, they hardly establish any inclination on the part of applicant to flee. And other evidence supports the inference that he is not so inclined. Applicant faithfully complied with the terms of his pretrial bail and affirmed at sentencing his faith in his eventual vindication and his intention not to flee if released on bail. He has resided continuously in this country since 1965, and has extensive ties in the community. He has produced numerous affidavits attesting to his character and to his reliability as a bail risk. He has maintained a close relationship with his sister, a permanent resident of the United States since 1969. The equity in his sister’s Los Angeles home constitutes a substantial measure of the security for applicant’s bail. In addition, applicant’s reply to the memorandum for the United. States in opposition informs us that the “American Friends Service Committee and the National Council of Churches have come forward with large sums which are now in the registry of the court in Alexandria.”

I conclude, therefore, that there was insufficient basis for revocation of applicant’s bail following his conviction, and that his bail should be continued at $250,000 pending decision of his appeal by the Court of Appeals. The application is therefore remanded to the District Court for the determination of further appropriate conditions of release, and for further proceedings consistent with this opinion.

       This application was originally presented to Mr. Chief Justice Burger as Circuit Justice. In his absence it was referred to me.

       See 18 U. S. C. §§371, 641, 793 (e), 794 (a) and (c), 951; 50 U. S. C. §§783 (b) and (c) (1970 ed.).

       The statute states in the pertinent part:
      “A person . . . who has been convicted of an offense and . . . has filed an appeal . . , shall be treated in accordance with the provisions of [18 U. S. C. § 3146] unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee .... If such a risk of flight ... is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained.”

       At the time applicant faced the possibility of two life sentences as well as additional terms of imprisonment totaling 35 years. After the Court of Appeals had affirmed the District Court’s revocation of bail, applicant was sentenced to a maximum óf only 15 years. He has not, however, brought this fact to the attention of either the District Court or the Court of Appeals by way of a motion for reconsideration of bail revocation.

       The Solicitor General, in his memorandum in opposition, notes in addition that applicant’s parents and other close relatives still reside in Vietnam, and that applicant’s lack of a passport or other travel documents would present no great obstacle to his flight.

       Applicant has filed 11 such affidavits; affiants include Ramsey Clark, Noam Chomsky, Richard Falk, and George Wald.


author: Mr. Justice Marshall, Circuit Justice.

text:
    NEW YORK TIMES CO. et al. v. JASCALEVICH
    No. A-111.
    Decided August 4, 1978
   Mr. Justice Marshall, Circuit Justice.

The New York Times and one of its reporters, Myron Farber, have reapplied to me for a stay of an order issued by the Supreme Court of New Jersey on July 25, 1978, after Mr. Justice White denied their initial application on August 1, 1978. Ante, p. 1317.

At issue is the New Jersey Supreme Court’s denial of a motion for a stay of civil contempt penalties imposed by the Superior Court of Bergen County in order to coerce the applicants to submit for in camera inspection materials sought by the defendant in a murder trial now in progress. The New Jersey Supreme Court also denied the applicants’ motion for direct certification of their appeals from the contempt orders entered by the Superior Court.

The applicants have requested a stay pending the filing and determination of their petition for certiorari, which would raise the issue

“whether the First and Fourteenth Amendments to the Constitution of the United States permit a State to incarcerate and fine a newsperson or newspaper to force them to disclose to a court, in camera, all materials, including confidential sources and unpublished information, called for by a subpoena duces tecum, prior to making determinations with respect to the facial invalidity of the subpoenas as well as claims of First Amendment and statutory shield law privileges, when such issues are raised in a motion to quash the subpoena duces tecum.”

Alternatively, they seek a stay pending review of those issues by the New Jersey appellate courts. This application was denied by Mr. Justice White and then referred to me. Although a single Justice would ordinarily refer a reapplication for a stay to the full Conference of this Court, as we are now in recess and widely scattered, such a referral is not immediately practicable.

I

A preliminary question is whether a Justice of this Court has jurisdiction to grant a stay under the circumstances of this case. Under 28 U. S. C. § 2101 (f), the execution and enforcement of a judgment or decree may be stayed by a Member of this Court in “any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari.” The application of that provision, in turn, depends upon 28 U. S. C. § 1257, which provides that this Court has jurisdiction to review “[fjinal judgments or decrees rendered by the highest court of a State in which a decision could be had.”

The proceedings relevant here began with an order of the Superior Court on June 30, 1978, denying the applicants’ motion to quash the subpoena and directing them to produce the subpoenaed materials. The Superior Court declined to consider any constitutional or statutory claims of privilege until the applicants submitted the materials for in camera review. The applicants sought review of the Superior Court’s order before the Appellate Division and the New Jersey Supreme Court, on the grounds they intend to raise in their petition for certiorari. Both courts denied leave to appeal and declined to stay the order to produce. With the case in that posture, both Mr. Justice White and I denied the applicants’ request for a stay.

Since the initial application for a stay, a different judge of the Superior Court on July 24 found the applicants guilty of both criminal and civil contempt for refusing to comply with the June 30 order to produce the subpoenaed materials. Without considering the issues that I previously had expected would be addressed in a contempt proceeding, see ante, at 1305-1306, the Superior Court held that the applicants could not raise their constitutional or statutory challenges to the validity of the June 30 order to produce. As a coercive sanction for the civil contempt, the court sentenced Farber to jail and fined the New York Times $5,000 per day until the applicants complied with the order to produce. On the criminal contempt charges, Farber received a sentence of six months in jail and the New York Times was assessed a fine of $100,000.

The applicants appealed both the criminal and civil sanctions, and the Appellate Division agreed to accelerate those appeals to the extent possible. The Appellate Division decided to stay the criminal penalties against the applicants, but not the coercive civil penalties, which mandate immediate imprisonment of Farber. On July 25, the New Jersey Supreme Court also declined to stay the coercive penalties and refused to certify the applicants’ appeals for direct consideration by that court. At present, the Appellate Division still has not set a date for hearing the applicants’ appeals.

In most cases where an appeal is still pending in the state courts, Members of this Court would not have jurisdiction to issue a stay under 28 TJ. S. C. § 2101(f). See United States v. Nixon, 418 U. S. 683, 690-691 (1974). However, this Court has shown a special solicitude for applicants who seek stays of actions threatening a significant impairment of First Amendment interests. The inability of an applicant to obtain timely substantive review by state courts of a serious First Amendment issue, prior to incurring substantial coercive penalties, may justify a determination that the applicant has satisfied the jurisdictional requirements of 28 U. S. C. § 2101 (f). Even though this application does not involve a direct prior restraint, Me. Justice Blackmun’s analysis in Nebraska Press Assn. v. Stuart, 423 U. S. 1327 (1975) (in chambers), is applicable here:

“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.” Id., at 1330.

As in Nebraska Press, the delay by the appellate courts has left standing a serious intrusion on constitutionally protected rights. Mr. Justice White credited these same First Amendment considerations when he determined to reach the merits of the present applicants' request for a stay. Ante, p. 1317.

II

Although I agree with Mr. Justice White’s conclusion that he had the power to issue a stay at least until a final determination of the jurisdictional issue, I must differ with his conclusion on the merits of the constitutional questions raised by the applicants. As I observed in my previous opinion in this case:

“There are, of course, important and unresolved questions regarding the obligation of a newsperson to divulge confidential files and other material sought by the prosecution or defense in connection with criminal proceedings. It may well be, moreover, that forced disclosure of these materials, even to a judge for in camera inspection, will have a deleterious effect on the ability of the news media effectively to gather information in the public interest, as is alleged by applicants.” Ante, at 1305.

Many potential criminal informants, for example, might well refuse to provide information to a reporter if they knew that a judge could examine the reporter’s notes upon the request of a defendant.

Given the likelihood that forced disclosure even for in camera review will inhibit the reporter’s and newspaper’s exercise of First Amendment rights, I believe that some threshold showing of materiality, relevance, and necessity should be required. Cf. United States v. Nixon, supra. See generally Carey v. Hume, 160 U. S. App. D. C. 365, 492 F. 2d 631, cert. dismissed, 417 U. S. 938 (1974); Baker v. F & F Investment, 470 F. 2d 778 (CA2 1972), cert. denied, 411 U. S. 966 (1973); Democratic National Committee v. McCord, 356 F. Supp. 1394 (DC 1973). Examination of the record submitted with this application discloses that the Superior Court did not make any independent determinations of materiality, relevance, or necessity prior to ordering the applicants to submit the subpoenaed materials for in camera review.

Initially defense counsel submitted ex parte to the Superior Court Judge an affidavit averring the need for “notes, memoranda, reports, statements, tape recordings and other written memorializations” of Farber’s interviews of witnesses. The affidavit provided only one example of a statement given to Farber by a potential witness. With respect to the other material requested, the affidavit included only a general assertion of necessity, but afforded no factual basis for the judge to determine whether any of the documents other than the statement mentioned above were material, relevant, or necessary for the defense. It cannot be supposed that the Superior Court Judge knew from conducting the trial that the material requested met those criteria, because counsel failed to specify the materials that came within the terms of his extremely broad request. Conclusory assertions by defense counsel are insufficient to justify a subpoena of the breadth of the one involved here.

Moreover, an ex parte determination of materiality, relevance, and necessity provides little assurance that First Amendment interests will not be infringed unnecessarily. Without affording counsel for the applicants an opportunity to respond and narrow the scope of the subpoena, the Superior Court issued a certificate under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, N. J. Stat. Ann. §§ 2A:81-18 to 2A:81-23 (West 1976), for all documents in the possession of the applicants that

“contain statements, pictures, memoranda, recordings and notes of interviews of witnesses for the defense and prosecution in the above proceeding as well as information delivered to the Bergen County Prosecutor’s Office, and contractual information relating to the above.”

Similarly, the second certificate issued by the Superior Court reveals no further consideration of materiality, relevance, and necessity. Although the certificate did add a list of a few of the witnesses who appeared at the trial, that listing at best argued in favor of a subpoena confined to documents regarding those particular witnesses.

Just as the Superior Court Judge did not make any independent determinations of materiality, relevance, and necessity before issuing the certificates to obtain the subpoenas, neither did he make those determinations before requiring in camera inspection. Even after the criminal and civil contempt proceedings, the applicants have been unable to obtain a state-court decision, except perhaps by implication from the Superior Court’s order of June 30, on the issue of whether a judge must make a threshold determination of materiality, relevance, and necessity before requiring them to submit the materials for in camera inspection.

III

Were I deciding this issue on the merits, I would grant a stay pending the timely filing of a petition for certiorari or at least pending the Appellate Division’s consideration of the important constitutional and statutory issues raised by the applicants. But the well-established criteria for granting a stay are that the applicants must show “a balance of hardships in their favor” and that the issue is so substantial that four Justices of this Court would likely vote to grant a writ of certiorari. Beame v. Friends of the Earth, 434 U. S. 1310, 1312-1314 (1977) (Marshall, J., in chambers). The applicants here bear an especially heavy burden, for a single Justice will seldom grant an order that has been denied by another Justice. See Levy v. Parker, 396 U. S. 1204, 1205 (1969) (Douglas, J., in chambers).

After reviewing the applicable decisions of this Court, I cannot conclude in good faith that at least four Justices would vote to grant a writ of certiorari with the case in its present posture. See United States v. Nixon, 418 U. S. 683 (1974); Bransburg v. Hayes, 408 U. S. 665 (1972). Consequently, I am compelled to deny this application for a stay.


text:
    MIROYAN v. UNITED STATES
    No. A-99.
    Decided August 8, 1978

      Together with No. A-87, McGinnis v. United States, also on application for stay of the same mandate.

   Mr. Justice Rebcnquist, Circuit Justice.

Applicants McGinnis and Miroyan seek a stay of the mandate of the United States Court of Appeals for the Ninth Circuit pending both the filing of a petition for a writ of certiorari and this Court's final disposition of their case. Their convictions for several drug-related offenses were secured largely on evidence obtained through the use of an electronic tracking device, or “beeper,” attached to an airplane used by applicants to import several hundred pounds of Mexican marihuana into this country. Applicants maintain that the Government’s installation and use of the beeper violated their rights under the Search and Seizure Clause of the Fourth Amendment and that the decision of the Ninth Circuit conflicts with decisions of other Courts of Appeals. Twice within the last year this Court has declined to review similar Fourth Amendment claims in strikingly similar cases. Houlihan v. State, 551 S. W. 2d 719 (Tex. Crim. App.), cert. denied, 434 U. S. 955 (1977); United States v. Abel, 548 F. 2d 591 (CA5), cert. denied, 431 U. S. 956 (1977). This fact leads me to conclude that unless applicants can demonstrate a conflict among the Courts of Appeals of which this Court was unaware at the time of the previous denials of certiorari, or which has developed since then, applicants’ petition for certiorari will not command the four votes necessary for the granting of the writ in their case. While there is undoubtedly a difference of approach between the Circuits on the question, I am not sure that there is a square conflict, and I am even less sure that the granting of certiorari in this case would result in the resolution of any conflict which does exist. I think it quite doubtful that applicants’ petition for certiorari will be granted and have accordingly decided to deny the application for a stay.

Miroyan arranged with Aero Trends, Inc., of San Jose, Cal., to rent a Cessna aircraft for one week. On the day before the beginning of the rental period, pursuant to a United States Magistrate’s order and with the aircraft owner’s express permission, Drug Enforcement Administration (DEA) agents installed a beeper in the aircraft. Miroyan and McGinnis then departed in the rented airplane and journeyed to Ciudad Obregon in the Republic of Mexico. Following in a United States Customs aircraft, federal agents monitored applicants’ trip into Mexico by means of the beeper’s signals and visual sightings. On May 11 Customs personnel in Phoenix, Ariz., picked up the beeper’s signals and determined that the aircraft was returning to the United States. Federal agents again took to the air and tracked the aircraft’s progress to Lompoc, Cal., where McGinnis deplaned and checked into a Lompoc motel. Miroyan flew on to nearby Santa Ynez airport and was arrested while transferring several hundred pounds of marihuana from the airplane to a pickup truck. McGinnis was arrested at his motel room in Lompoc. Both men were separately tried and convicted of conspiracy to possess a controlled substance with intent to distribute, importation of a controlled substance, and possession of a controlled substance with intent to distribute.

Applicants appealed their convictions to the Ninth Circuit, urging, inter alia, that the District Court had erred in refusing to suppress the marihuana and other evidence obtained as a result of the use of the beeper. In essence, applicants argued that the installation of the beeper and the monitoring of its signals constituted a search or searches within the meaning of the Fourth Amendment. Because the installation of the beeper had been authorized by a federal Magistrate, applicants focused their attack on the sufficiency of the affidavit upon which the Magistrate’s order had been predicated. The Ninth Circuit examined the Fourth Amendment implications of both the installation of the beeper and the monitoring of its signals. Finding no distinction between visual surveillance and surveillance accomplished through the use of an electronic tracking device, the court held that the mere use of the beeper to monitor the location of the aircraft as it passed through public airspace did not infringe upon any reasonable expectation of privacy and therefore did not constitute a search subject to the warrant requirement of the Fourth Amendment. It went on to hold that the installation of the device, having been performed with the owner’s express consent and prior to the beginning of the rental period, did not violate applicants’ Fourth Amendment rights. The court, having found neither search nor seizure, did not reach the question concerning the sufficiency of the affidavit.

Both the decision in this case and the decisions with which applicants claim it is in conflict used Katz v. United States, 389 U. S. 347 (1967), as their point of departure. There this Court held that “[t]he Government’s activities in electronically listening to and recording the petitioner’s [telephone conversation] violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” Id., at 353.

In other cases in which enterprises similar to applicants’ have been frustrated with the aid of electronic tracking devices, defendants have frequently cited Katz for the proposition that installation and use of the devices are searches subject to the strictures of the Fourth Amendment. In support of their contention that the Ninth Circuit’s position on this question is at odds with that of other Circuits, applicants point to United States v. Moore, 562 F. 2d 106 (CA1 1977) and United States v. Holmes, 521 F. 2d 859 (CA5 1975).

In Moore DEA agents, without the benefit of a warrant or the owner’s consent, surreptitiously attached beepers onto two vehicles parked by defendants in a shopping center parking lot. As the Court of Appeals for the First Circuit framed the issue: “The basic question [was] whether the use of beepers so implanted to monitor the movements of the U-Haul van and the 1966 Mustang . . . violated defendants’ reasonable expectations of privacy.” United States v. Moore, supra, at 112. That court answered the question affirmatively, but reasoned that the lessened expectation of privacy associated with motor vehicles justifies the installation and use of beepers without a warrant so long as the officers installing and using the device have probable cause. Finding the electronic surveillance in that case supported by probable cause to believe that defendants planned to manufacture a controlled substance, the court held that use of the beepers did not violate defendants’ Fourth Amendment rights.

In Holmes Government agents attached a beeper to defendant’s van while defendant was in a nearby lounge negotiating with an undercover agent for the sale of 300 pounds of marihuana. The tracking device ultimately led to the seizure of over a ton of marihuana. In affirming the District Court’s order suppressing all evidence obtained through the use of the beeper, a panel of the Fifth Circuit held that installation of the beeper constituted a search within the Fourth Amendment and that Government agents “had no right to attach the beacon without consent or judicial authorization.” United States v. Holmes, supra, at 865. An evenly divided en banc court affirmed the panel’s decision. 537 F. 2d 227 (1976).

Both Moore and Holmes are plainly different from this case with respect to one important fact: the beeper leading to the arrest of McGinnis and Miroyan was installed on their rented airplane with the owner’s express consent before possession of the aircraft passed to applicants. Equally plainly, the Fourth Amendment analysis employed by the Court of Appeals for the First Circuit differs from that employed by the Court of Appeals for the Ninth Circuit in this case. I do not think that the same can be said with respect to the Fifth and Ninth Circuits: Holmes was ultimately an affirmance of the District Court by an equally divided Court of Appeals on rehearing en banc; and, indeed, on two separate occasions since Holmes, the Fifth Circuit has rejected Fourth Amendment claims on facts virtually identical to those of the instant case on the ground that the owner-authorized installation of beepers on the airplanes there involved came within the third-party-consent exception to the warrant requirement. See United States v. Cheshire, 569 F. 2d 887 (1978); United States v. Abel, 548 F. 2d 591, cert. denied, 431 U. S. 956 (1977).

The question, then, it seems to me, boils down to how significant the difference between the approaches of the First and Ninth Circuits is. Assuming that it is sufficiently significant to ultimately lead this Court to grant certiorari to resolve the difference, is the Court likely to do so in this case? I think that in all probability this Court may eventually feel bound to decide whether Government agencies must have probable cause to install tracking devices on motor vehicles or in articles subsequently used in a criminal enterprise when the installation is expressly authorized by the owner of the vehicle or article. Such a decision could require a choice between the Ninth Circuit’s view that the operator of an airplane has no legitimate expectation of privacy which would, prevent observation of the plane’s movement through the public airspace, and the First Circuit’s view that the operator of a vehicle does have an expectation “not to be carrying around an uninvited device that continuously signals his presence.” United States v. Moore, supra, at 112. Or conceivably this Court could choose to adopt the third-party-consent ruling of the Fifth Circuit. See United States v. Cheshire, supra.

But because the question is an important and recurring one, the Court is apt to feel that the case taken under consideration should pose the issue as clearly as possible. Having within the past year denied certiorari in two cases strikingly similar to applicants’, the Court is not likely to grant certiorari in this case unless such an action would appear to offer the strong likelihood of deciding an issue on which a square conflict exists. I simply cannot tell from the applicants’ motion papers or from the opinion of the Court of Appeals for the Ninth Circuit whether the District Court made any finding on the existence of probable cause, or whether the applicants’ arguments to that court went to a lack of probable cause as well as to the insufficiency of the affidavit in support of the warrant. If upon review of the applicants’ petition for certiorari and the Government’s response thereto, it appears that there was in fact probable cause, to justify installation of the beeper in this case, it seems to me very likely that this Court would hesitate to grant certiorari to decide the abstract proposition of whether probable cause is in fact required.

This latter factor also bears to some extent on applicants’ claim of irreparable injury should a stay not be granted. That claim is the customary one that should a stay be denied, but certiorari be granted and the position of the First Circuit be adopted as the law by this Court, they will have served time in prison under a judgment of conviction which will eventually be reversed. But on the papers before me, I think that even under their most favorable hypothesis, the most applicants could expect is a remand to the Ninth Circuit for consideration by that court or by the District Court of whether there was probable cause. And if that question was resolved adversely to the applicants, there is no reason to think that their judgments of conviction would not again be affirmed by the Ninth Circuit.

Accordingly, applicants’ motions to stay the mandate of the United States Court of Appeals for the Ninth Circuit are denied.


text:
    BRENNAN et al. v. UNITED STATES POSTAL SERVICE
    No. A-152.
    Decided August 11, 1978
   Mr. Justice Marshall, Circuit Justice.

Patricia H. Brennan and J. Paul Brennan have applied to me for a stay of the judgment of the Court of Appeals for the Second Circuit pending the filing and disposition by this Court of their petition for a writ of certiorari. Applicants operate a hand delivery mail service in Rochester, N. Y. The United States Postal Service (USPS) brought suit in the Western District of New York to enjoin operation of this service on the ground that the Private Express Statutes, 39 U. S. C. §§ 601-606 and 18 U. S. C. §§ 1693-1699, proscribe private carriage and delivery of “letters and packets.” Applicants concede that the Private Express Statutes do indeed prohibit their activities, but they challenge the prohibition principally on the basis that the Constitution does not confer upon Congress exclusive power to operate a postal system. The District Court rejected the challenge and permanently enjoined further violations. The Court of Appeals affirmed, denied motions for rehearing and rehearing en banc, and refused to stay its judgment pending disposition of a petition for a writ of certiorari. Applicants invoke the jurisdiction of this Court under 28 U. S. C. § 2101 (f).

The argument applicants press here is that Congress exceeded its powers by granting the USPS a monopoly over the conveyance of letter mail. Article I, § 8, cl. 7, of the Constitution provides that “Congress shall have Power ... To establish Post Offices and post Roads.” Nothing in this language or in any other provision of the Constitution, applicants submit, implies that the postal power is invested exclusively in the Legislative Branch. Although Congress has authority under Art. I, § 8, cl. 18, to make such laws as are “necessary and proper” for carrying out its delegated functions, applicants argue that this provision does not permit it to convert a nonexclusive power into an exclusive one.

The well-established criteria for granting a stay are “that the applicants must show ‘a balance of hardships in their favor’ and that the issue is so substantial that four Justices of this Court would likely vote to grant a writ of certiorari.” New York Times Co. v. Jascalevich, ante, at 1337. I cannot conceive that four Justices would agree tó review the Court of Appeals’ ruling on the argument advanced here. That argument rests on the tenuous premise that the Framers intended to create categories of exclusive and nonexclusive powers so inviolable that a subsequent Congress could not determine that a Government monopoly over letter mail was “necessary and proper” to prevent private carriers from securing all of the profitable postal routes and relegating to the USPS the unprofitable ones. Applicants have presented no convincing evidence of such an intent, and such a miserly construction of congressional power transgresses principles of constitutional adjudication settled since McCulloch v. Maryland, 4 Wheat. 316 (1819). As Mr. Chief Justice Marshall stated there, “the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.” Id., at 421.

Moreover, long historical practice counsels against reviewing this novel constitutional claim. The Private Express Statutes have existed in one form or another since passed by the First Congress in 1792, and their constitutionality has never been successfully challenged. While such longevity does not ensure that a statute is constitutional, it is certainly probative here of whether four Justices would vote to hear the merits of applicants’ case. Cf. Myers v. United States, 272 U. S. 52, 175 (1926). This Court’s recent refusal to review the Tenth Circuit’s decision upholding the Private Express Statutes, United States v. Black, 569 F. 2d 1111, cert. denied, 435 U. S. 944 (1978), and the absence of any conflict among the Circuits on this point also indicate that applicants have not satisfied the criteria for the granting of a stay.

Accordingly, the application is denied.

       They contend also that the legislation violates the Tenth Amendment because it denies to the States and to the people a concurrent power reserved to them, that Congress improperly delegated to the USPS the power to define “letters and packets,” and that the extension of the postal monopoly only to letter mail arbitrarily discriminates against their business. Applicants intend to pursue these challenges in their petition for certiorari, but do not elaborate on them here.

       Indeed, the 1792 Act continued in effect a statute of the Continental Congress that had created a postal monopoly. Act of Feb. 20, 1792, 1 Stat. 232, 236, adopting Act of Oct. 18, 1782, 23 J. Cont. Cong. 672-673.


author: Me. Justice Rehnquist.

text:
    COLUMBUS BOARD OF EDUCATION et al. v. PENICK et al.
    No. A-134.
    Decided August 11, 1978
    See: 683 F. 2d 787.
   Me. Justice Rehnquist.

The Columbus, Ohio, Board of Education and the Superintendent of the Columbus public schools request that I stay-execution of the judgment and the mandate of the Court of Appeals for the Sixth Circuit and execution of the judgment of the United States District Court for the Southern District of Ohio in this case pending consideration by this Court of their petition for certiorari. The Court of Appeals’ judgment at issue affirmed findings of systemwide violations of the Equal Protection Clause of the Fourteenth Amendment on the part of the Columbus Board of Education, and upheld an extensive school desegregation plan for the Columbus school system. The remedy will require reassignment of 42,000 students; alteration of the grade organization of almost every elementary school in the Columbus system; the closing of 33 schools; reassignment of teachers, staff, and administrators; and the transportation of over 37,000 students. The 1978-1979 school year begins on September 7, and the applicants maintain that failure to stay immediately the judgment and mandate of the Court of Appeals will cause immeasurable and irreversible harm to the school system and the community. The respondents are individual plaintiffs and a plaintiff class consisting of all children attending Columbus public schools, together with their parents and guardians.

This stay application comes to me after extensive and complicated litigation. On March 8, 1977, the District Court for the Southern District of phio issued an opinion declaring the Columbus school system unconstitutionally segregated and ordering the defendants to develop and submit proposals for a systemwide remedy. 429 F. Supp. 229.. That decision predated this Court’s opinions in three important school desegregation cases: Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Brennan v. Armstrong, 433 U. S. 672 (1977); and School District of Omaha v. United States, 433 U. S. 667 (1977). In the lead case, Dayton, this Court held that when fashioning a remedy for constitutional violations by a school board, the court “must determine how much incremental segregative effect these violations had on the racial distribution of the . . . school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a system-wide remedy.” 433 U. S., at 420. The defendants moved that the District Court reconsider its violation findings and adjust its remedial order in light of our Dayton opinion. Upon such reconsideration, the District Court concluded that Dayton simply restated the established precept that the remedy must not exceed the scope of the violation. Since it had found a systemwide violation, the District Court deemed a system-wide remedy appropriate without the specific findings mandated by Dayton on the impact discrete segregative acts had on the racial composition of individual schools within the system. The Sixth Circuit affirmed. 583 F. 2d 787 (1978).

Prior to its submission to me, this application for stay was denied by Mr. Justice Stewart. While I am naturally reluctant to take action in this matter different from that taken by him, this case has come to me in a special context. Four days before the application for stay was filed in this Court, the Sixth Circuit issued its opinion in the Dayton remand. Brinkman v. Gilligan, 583 F. 2d 243 (1978) (Dayton IV). Pursuant to this Court’s opinion in Dayton, the District Court for the Southern District of Ohio had held a new evidentiary hearing on the scope of any constitutional violations by the Dayton school board and the appropriate remedy with regard to those violations. It had concluded that Dayton required a finding of segregative intent with respect to each violation and a remedy drawn to correct the incremental segregative impact of each violation. On that basis the District Court had found no constitutional violations and had dismissed the complaint. The Sixth Circuit reversed, characterizing as a “misunderstanding” the District Court’s reading of our Dayton opinion. Dayton IV, supra, at 246. It reinstated the systemwide remedy that it had originally affirmed in Brinkman v. Gilligan, 539 F. 2d 1084 (1976) (Dayton III), vacated and remanded sub nom. Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977).

Dayton IV and the instant case clearly indicate to me that the Sixth Circuit has misinterpreted the mandate of this Court’s Dayton opinion. During the Term of the Court, I would refer the application for a stay in a case as significant as this one to the full Court. But that is impossible here. The opinions of the District Court and the Court of Appeals total almost 200 pages of some complexity. It would be impracticable for me to even informally circularize my colleagues, with an opportunity for meaningful analysis, within the time necessary to act if the applicants are to be afforded any relief and the Columbus community’s expectations adjusted for the coming school year.

I am of the opinion that the Sixth Circuit in this case evinced an unduly grudging application of Dayton. Simply the fact that three Justices of this Court might agree with me would not necessarily mean that the petition for certiorari would be granted. But this case cannot be considered without reference to the Sixth Circuit’s opinion in Dayton IV. In both cases the Court of Appeals employed legal presumptions of intent to extrapolate systemwide violations from what was described in the Columbus case as “isolated” instances. 583 F. 2d, at 805. The Sixth Circuit is apparently of the opinion that presumptions, in combination with such isolated violations, can be used to justify a systemwide remedy where such a remedy would not be warranted by the incremental segrega-tive effect of the identified violations. That is certainly not my reading of Dayton and it appears inconsistent with this Court’s decision to vacate and remand the Sixth Circuit’s opinion in Dayton III. In my opinion, this questionable use of legal presumptions, combined with the fact that the Dayton and Columbus cases involve transportation of over 52,000 schoolchildren, would lead four Justices of this Court to vote to grant certiorari in at least one case and hold the other in abeyance until disposition of the first.

On the basis of the District Court’s findings, some relief may be justified in this case under the principles laid down in Dayton. Two instances where the school system set up discontiguous attendance areas that resulted in white children being transported past predominantly black schools may be clear violations warranting relief. But the failure of the District Court and the Court of Appeals to make any findings on the incremental segregative effect of these violations makes it impossible for me to tailor a stay to allow the applicants a more limited form of relief.

In their response, the plaintiffs/respondents also take an “all or nothing” approach and do not offer any suggestions as to how the mandate and judgment of the Court of Appeals can be stayed only in part consistent with the applicants’ legal contentions. I therefore have no recourse but to grant or deny the stay of the mandate and judgment in its entirety.

The last inquiry in gauging the appropriateness of a stay is the balance of equities. If the stay is granted the respondent children's opportunity for a more integrated educational experience is forestalled. How many children and how integrated an educational experience are impossible to discern because of the failure of the courts below to inquire how the complexion of the school system was affected by specific violations.

In contrast, the impact of the failure to grant a stay on the applicants is quite concrete. Extensive preparations toward implementation of the desegregation plan have taken place, but an affidavit filed in this Court by the Superintendent of the Columbus public schools indicates that major activities remain for the four weeks before the new school term begins. These activities include inventory, packing, and moving of furniture, textbooks, equipment, and supplies; completion of pupil reassignments, bus routes and schedules, and staff and administrative reassignments; construction of bus storage and maintenance facilities; hiring and training of new busdrivers; and notification to parents of pupil reassignments and bus information. Such activities cannot be easily reversed. Most important, on September 7 there will occur the personal dislocations that accompany the actual reassignment of 42,000 students, 37,000 of whom will be transported by bus.

The Columbus school system has severe financial difficulties. It is estimated that for calendar year 1978 the system will have a cash deficit of $9.5 million, $7.3 million of which is calculated to be desegregation expenses. Under Ohio law school districts are not permitted to operate when cash balances fall to zero and it is now projected that the Columbus school system will be forced to close in mid-November 1978. Financial exigency is not an excuse for failure to comply with a court order, but it is a relevant consideration in balancing the equities of a temporary stay.

Given the severe burdens that the school desegregation order will place on the Columbus school system and the Columbus community in general, and the likelihood that four Justices of this Court will vote' to grant certiorari in this case, I have decided to grant the stay of the judgment and mandate of the Court of Appeals for the Sixth Circuit and the judgment of the District Court.

As this Court noted in Dayton, “local autonomy of school districts is a vital national tradition.” 433 U. S., at 410. School desegregation orders are among the most sensitive encroachments on that tradition, not only because they affect the assignment of pupils and teachers, but also because they often restructure the system of education. In this case the desegregation order requires alteration of the grade organization of virtually every elementary school in Columbus. As this Court emphasized in Dayton, judicial imposition on this established province of the community is only proper in the face of factual proof of constitutional violations and then only to the extent necessary to remedy the effect of those violations.

It is therefore ordered that the application for a stay of the judgment and mandate of the Court of Appeals for the Sixth Circuit and the judgment of the District Court for the Southern District of Ohio be granted pending consideration of a timely petition for certiorari. The stay is to remain in effect until disposition of the petition for certiorari. If the petition is granted, the stay shall remain in effect until further order of this Court.


text:
    REPRODUCTIVE SERVICES, INC. v. WALKER, DISTRICT JUDGE
    No. A-1091.
    Decided August 21, 1978
   Mr. Justice Brennan.

On July 17, 1978, in an in-chambers opinion, I stated: “[0]n express condition that the parties agree to a protective order ensuring the privacy of patients at applicant's clinics, the stay I entered on July 10, 1978, in these proceedings is hereby dissolved. If such a protective order is not entered, applicant may resubmit a further stay application.” Ante, at 1309.

On August 14, 1978, applicant renewed its application, filing therewith a copy of an order entered August 1, 1978, by respondent, which it alleged did not constitute “such a protective order.” Upon examination of said order of August 1, 1978, it is my view that said order does not constitute “such a protective order.” Accordingly, the “express condition” upon which my stay entered on July 10, 1978, was to be dissolved not having been satisfied, said stay of July 10, 1978, is continued in effect pending the timely filing of a petition for writ of certiorari.

Should said petition for writ of certiorari be denied, the stay of July 10, 1978, is to terminate automatically. In the event said petition for writ of certiorari is granted, the stay of July 10, 1978, is to continue in effect pending the issuance of the mandate of this Court.


text:
    GENERAL COUNCIL ON FINANCE & ADMINISTRATION, UNITED METHODIST CHURCH v. CALIFORNIA SUPERIOR COURT, SAN DIEGO COUNTY (BARR et al., REAL PARTIES IN INTEREST)
    No. A-200.
    Decided August 24, 1978
   Mr. Justice Rehnquist, Circuit Justice.

Applicant requests that proceedings in the Superior Court of the State of California for the County of San Diego in which it is a defendant be stayed as to it pending consideration by this Court of its petition for a writ of certiorari to review the judgment of that court filed March 20, 1978. I have decided to grant a temporary stay of the proceedings against applicant pending receipt and my consideration of a response to the application.

Applicant has, in my opinion, inexcusably delayed the filing of its application for a stay. The Supreme Court of the State of California denied applicant’s petition for hearing on its request for a writ of mandate on July 27, 1978. On August 3, 1978, the Superior Court granted applicant 30 days from July 27, 1978, until August 28, in which to plead, but denied any additional stay of the proceedings. Applicant did not seek any further stay of the proceedings from either the California Court of Appeal or the California Supreme Court. Nevertheless, it did not file its application for a stay in this Court until August 22, nearly three weeks after the Superior Court’s order and only six days before it was required to plead.

It is only because a delay of a few days will have virtually no effect on the progress of the state-court proceedings that I have decided to grant this temporary stay. It should be noted, however, that in deciding whether to grant or deny any further relief of this nature beyond that provided in this order, I shall take into consideration the above-described delay on the applicant’s part.